Donnelly Garment Co. v. Dubinsky

• Decision Date: 11 March 1946
• Docket Number: 13020.,No. 13019,13019
• Citation: 154 F.2d 38
• Parties: DONNELLY GARMENT CO. et al. v. DUBINSKY et al. SMITH et al. v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

154 F.2d 38 (1946)

DONNELLY GARMENT CO. et al. v. DUBINSKY et al. SMITH et al. v. SAME.

Nos. 13019, 13020.

Circuit Court of Appeals, Eighth Circuit.

March 11, 1946.

COPYRIGHT MATERIAL OMITTED

William S. Hogsett, of Kansas City, Mo. (R. J. Ingraham, Burr S. Stottle, and Reed, Ingraham & Milligan, all of Kansas City, Mo., on the brief), for appellants, Donnelly Garment Co. and Donnelly Garment Sales Co.

Frank E. Tyler, of Kansas City, Mo. (Raymond E. Draper and Vera Jones, both of Kansas City, Mo., on the brief), for intervener appellants Lorraine Smith et al.

Charles A. Horsky, of Washington, D. C., and Emil Schlesinger, of New York City (Clif. Langsdale, of Kansas City, Mo., and Covington, Burling, Rublee, Acheson & Shorb, of Washington, D. C., on the brief), for appellees.

Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

This is an action for an injunction in a labor dispute in which jurisdiction of the Federal courts is narrowly circumscribed by the Norris-LaGuardia Act. 29 U.S.C.A., § 101 et seq. See United States v. Hutcheson, 312 U.S. 219, 234-236, 61 S. Ct. 463, 85 L.Ed. 788; Milk Wagon Drivers' Union v. Lake Valley Farm Products, Inc., 311 U.S. 91, 101, 102, 61 S.Ct. 122, 85 L.Ed. 63; International Association of Bridge, Structural & Ornamental Iron Workers v. Pauly Jail Building Co., 8 Cir., 118 F.2d 615, 616, 617.

The labor dispute out of which this action arose began in 1934, and from that time to the present has resulted in almost continuous proceedings before the National Labor Relations Board and in the Federal courts. The present action began in the Federal District Court for the Western District of Missouri in 1937. The history of its progress through the courts and the facts involved may be found in the opinion of the District Court from which this appeal comes (55 F.Supp. 587), in the opinions in the cases referred to by the District Court in the opinion mentioned, and in the opinions of this court in International Ladies' Garment Workers' Union v. Donnelly Garment Company, 147 F.2d 246, and in Donnelly Garment Company v. National Labor Relations Board, 151 F.2d 854. For present purposes it is enough to say that on its original appearance in the Federal District Court in 1937 the jurisdiction of the action was predicated solely upon the Sherman Act, 15 U.S.C.A. § 1 et seq. The plaintiffs and the interveners then were the same as they are now. The defendants were the International Ladies Garment Workers Union, the Kansas City Joint Board of the International, several of the International's locals, a number of its officers in their official and individual capacities, and many of its members. The action came to trial on its merits in 1939, and in April of that year the District Court entered a decree enjoining the defendants from committing the acts of fraud and violence and from conducting the illegal secondary boycott with which the defendants in the present action are charged. On appeal to this court (International Ladies' Garment Workers' Union v. Donnelly Garment Co., 119 F.2d 892) the decree of the District Court was reversed on the ground that the acts charged against defendants did not constitute a restraint of trade within the meaning of the Sherman Act. This decision was later modified on motion of plaintiffs and interveners so as to remand the case to the District Court with leave to plaintiffs and interveners to apply to that court to amend their pleadings to show jurisdiction based on diversity of citizenship and to dismiss the action as to resident defendants and the International Ladies Garment Workers Union (121 F.2d 561).

On December 10, 1941, more than four years after the beginning of the litigation, the District Court granted the motion of plaintiffs and interveners to amend and to dismiss (47 F.Supp. 61), and the case proceeded to trial. A decree denying an injunction was entered by the trial court on May 22, 1944. Plaintiffs and interveners, aligned on the same side of the controversy, have appealed.

In the action in its present form appellants are the Donnelly Garment Company and the Donnelly Sales Company, corporations domiciled in Kansas City, Missouri, and the interveners mentioned below. The Garment Company is a manufacturer of women's dresses, and the Sales Company is engaged in the sale of the product of the Garment Company. Their business is nationwide. The appellees are individuals, residents of States other than Missouri. They are officers and members of the General Executive Board of the International Ladies Garment Workers Union and the editor of "Justice," the official publication of the International. Lorraine Smith and others, members of the Executive Committee of the Donnelly Garment Workers Union, a labor organization composed of all employees of the Garment Company eligible to membership, intervene on behalf of themselves and all other employees of the Garment Company. Prior to the institution of this action the Donnelly Garment Workers Union entered into a contract with the Garment Company concerning wages, hours of labor, and conditions of employment which is still in force.

Summarized, the charges against the appellees are: That they entered into a conspiracy among themselves and with others to compel the appellants, by violence, fraud, and illegal secondary boycott, and by threats of such unlawful acts, to accede to their demands that the Garment Company recognize the International as the sole bargaining agency of its employees, thus breaching the existing contract between the Garment Company and the employees' union, and to compel the employees of the Garment Company to become members of the International against their will, in violation of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.; that the conspiracy is a continuing one; that in furtherance of the conspiracy appellees have been guilty of fraud and violence, and that, unless restrained, acts of fraud and violence will be committed to the irreparable damage of appellants; that appellants are without an adequate remedy at law; and that the public officers whose duty it is to protect the property of appellants from the threatened unlawful acts are unable or unwilling to furnish adequate protection.

The appellees deny all allegations of the complaint.

Violence and Threats of Violence.

The sections of the Norris-LaGuardia Act controlling upon the question of the power of the District Court to enjoin the appellees on appellants' allegations of violence and threats of violence are:

"Sec. 6. Responsibility of officers and members of associations or their organizations for unlawful acts of individual officers, members, and agents.

"No officer or member of any association or organization * * * shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof."

"Sec. 7. Issuance of injunctions in labor disputes; hearing; findings of court; notice to affected persons; temporary restraining order; undertakings.

"No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute * * * except after findings of fact by the court, to the effect —

"(a) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons * * * making the threat or committing the unlawful act or actually authorizing or ratifying the same after actual knowledge thereof;

* * * * * *

"(e) That the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection. * * *"

The trial court found that the evidence was not sufficient to sustain the findings that a present conspiracy existed among the appellees or any of them to unionize the Donnelly Garment factory in Kansas City by violence or threats of violence, and that the threats made in the spring of 1937 by persons other than the appellees that violence would be employed against the appellants in the event a strike was called at the Donnelly Garment Company plant were neither authorized nor ratified by the appellees. Appellants vigorously assail these findings as contrary to all the evidence in the record. We do not reach the issue thus presented. For, granting for the argument that these findings of the trial court are clearly erroneous, appellants were nevertheless not entitled to an injunction on this issue, because of the failure of appellants to make the proof required by section 7(e) of the Norris-LaGuardia Act. The trial court made the following finding:

"Plaintiffs and interveners have failed to show that the police force of Kansas City is either unable or unwilling to furnish adequate protection against any violence which might occur on the picket line or elsewhere if and when a strike occurs at Donnelly, or otherwise to protect plaintiffs' employees who may not be in sympathy with any strike called by International. The experience in strikes in other cities and the fact that some or all of the strikers may be women does not justify a finding that the police force in Kansas City is unable to furnish protection against any violence which might occur."

No other finding could have been made by the trial court on the evidence in this record.

A Federal District Court is without power to issue an injunction in an action growing out of a labor dispute in the absence of an allegation by the plaintiff and a finding by the court, supported by evidence, that local public officers are unable or unwilling to furnish plaintiff...