Iron Molders' Union 125 of Milwaukee, Wis. v. Allis-Chalmers Co.

• Decision Date: 09 October 1908
• Docket Number: 1,434.
• Citation: 166 F. 45
• Parties: IRON MOLDERS' UNION NO. 125 OF MILWAUKEE, WIS., et al. v. ALLIS-CHALMERS CO.
• Court: U.S. Court of Appeals — Seventh Circuit

166 F. 45

IRON MOLDERS' UNION NO. 125 OF MILWAUKEE, WIS., et al. v. ALLIS-CHALMERS CO.

No. 1,434.

United States Court of Appeals, Seventh Circuit.

October 9, 1908

[Copyrighted Material Omitted]

The appeal is from a final decree in a strike injunction suit.

On the bill, supplemental bill, and showing in connection therewith a temporary injunction was issued. Later, certain of the individual defendants were found to have violated the temporary injunction, and were accordingly punished. The pleadings, the temporary injunction, and the petition and evidence in the contempt proceedings are all stated in Allis-Chalmers Co. v. Iron Molders' Union (C.C.) 150 F. 155.

By agreement of parties the cause was submitted for final hearing upon the 'proofs taken on the motion to commit for contempt, as well as upon the other proofs in the case.'

The final decree enjoins the defendants, four Wisconsin local unions of the national organization of iron molders and some sixty individuals who were officers and members, from doing the following:

'(1) From in any manner directly interfering with, hindering, obstructing, or stopping the business of the said complainant, or its agents, servants or employes, in the maintenance, conduct, management or operation of its business.

'(2) From compelling or inducing or attempting to compel or induce by threats, intimidation, force or violence any of the said company's employes to fail or refuse to work for it, or to leave its service.

'(3) From preventing or attempting to prevent any person or persons by threats, intimidation, force or violence, from freely entering into or continuing in the said company's service.

'(4) And from congregating upon or about the company's premises or the streets, approaches and places adjacent or leading to said premises for the purpose of intimidating its employes or preventing or hindering them from fulfilling their duties as such employes or for the purpose of in such manner as to induce or coerce by threats, violence, intimidation or persuasion, any of the said company's employes to leave its service or any person to refuse to enter its service.

'(5) From congregating upon or about the company's premises or the sidewalk, streets, alleys or approaches adjoining or adjacent to or leading to said premises, and from picketing the said complainant's places of business or the homes or boarding houses or residences of the said complainant's employes.

'(6) From interfering with the said company's employes in going to and from their work.

'(7) From going singly or collectively to the homes of the said company's employes for the purpose of intimidating or threatening them or collectively persuading them to leave its service.

'(8) From enforcing, maintaining or aiding any illegal boycott against the said company, its agents or employes.

'(9) From endeavoring to illegally induce people not to deal with said company, its agents and employes.

'(10) From preventing or attempting to prevent by threats, intimidation, persuasion or in any other manner any person or corporation from performing work for said complainant and from doing business with it.

'(11) From intimidating or threatening in any manner the wives and families of said employes at their homes or elsewhere.

'(12) From doing any of the aforesaid or any other acts for the purpose of compelling and inducing or attempting to compel or induce the complainant by threats, intimidation, force or violence, against its will or the will of its officers, to employ or to discharge any person or persons whomsoever, and especially to employ members of said unions or discharge persons who are not members of said unions.

'(13) From combining, associating, agreeing, mutually undertaking, concerting together or with other persons for the purpose of doing or causing to be done any of the aforesaid prohibited acts.

'(14) From combining, associating, agreeing, mutually undertaking, concerting together or with other persons for the purpose of preventing (or hindering the complainant from doing or performing) any lawful act in the conduct of its aforesaid business or for the purpose of injuring the complainant in its aforesaid business, or of compelling the complainant against its will from doing or performing any lawful act or from injuring the said complainant in its trade and business.

'(15) From directing and abetting or counselling any acts whatsoever or in any manner whatsoever the conspiracy and combination found by the court to exist, to prevent the complainant and its officers and employes in the free and uninterrupted control and direction of its business and affairs and to prevent the complainant from doing or performing any and all lawful acts in the conduct of its business and to compel the complainant against its will from doing and performing its lawful business and to prevent the complainant from doing or performing all lawful acts in the conduct or management of its business.

'(16) From by threats, intimidation, persuasion, force or violence, compelling or attempting to compel or induce any of the apprentices in the employ of the said complainant to break their contracts and leave the employ of the said complainant.'

Under various assignments of error appellants contend that the unions were improperly included in the final decree because they were voluntary unincorporated associations; that the decree as a whole should be reversed for the reason that it is not supported by the evidence; that the parts of the decree are wrong which deny appellants the use of persuasion and the use of pickets; and that the finding of a boycott is contrary to the evidence.

The further facts are stated in the opinion.

Frederick H. Judson and W. B. Rubin, for appellants.

Wm. J. Turner and James M. Beck, for appellee.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

BAKER Circuit Judge (after stating the facts as above).

No Wisconsin statute authorized an unincorporated voluntary association to be sued in its common name. So the objection might have prevailed if it had been seasonably made. Karges Furniture Co. v. Amalgamated Wood Workers' Union, 165 Ind. 421, 75 N.E. 877, 2 L.R.A.(N.S.) 788; Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753, 6 L.R.A.(N.S.) 1067, 116 Am.St.Rep. 272. But the members could have been reached, of course, either by naming and serving them all, or, if that were impracticable on account of their numbers, by suing some as representatives of all. The bill treated the unions as representative of their membership; an individual member filed a verified answer in the names of the unions, alleging that he had been authorized by them so to do; and the case was carried through three hearings (temporary injunction, contempt, final decree) without a suggestion that there was a defect of parties, or rather a defect in the form under which appellee asked to have the membership of the unions brought into court. An objection of this kind will not be entertained on appeal unless it has been first duly presented in the trial court. Barnes v. Chicago Typographical Union, 232 Ill. 424, 83 N.E. 940, 14 L.R.A. (N.S.) 1018.

The evidence showed that appellee was entitled to injunctive relief. To keep other workmen out of appellee's foundries, some of the union men went to the extent of using vile and abusive language, threats of violence, and actual assaults. This was effective enough to damage appellee's business quite seriously, and was carried on under circumstances that might be held to indicate the unions' tacit approval. None of the appellants ever challenged by appeal the justice of the temporary injunction or of the punishments for its violation. And on this appeal from the final decree not a shadow of justification is found for these acts of violence and intimidation. The only substantial question is whether or not the trial court has stepped beyond the line of safeguarding the legal rights of appellee and has thereby deprived appellants of some of their legal rights.

To organize for the purpose of securing improvement in the terms and conditions of labor, and to quit work and to threaten to quit work as means of compelling or attempting to compel employers to accede to their demands for better terms and conditions, are rights of workmen so well and so thoroughly established in the law (Thomas v. Rld. Co. (C.C.) 62 F. 803; Arthur v. Oakes, 63 F. 320, 11 C.C.A. 209, 25 L.R.A. 414; Wabash Rld. Co. v. Hannahan (C.C.) 121 F. 563), that nothing remains except to determine in successive cases as they arise whether the means used in the endeavor to make the strike effective are lawful or unlawful.

By section 4466a, St. Wis. 1898, and, appellee asserts, by the common law as well, it is illegal for two or more persons to combine for the purpose of 'doing a harm malevolently for the sake of the harm as an end in itself, and not merely as a means to some further end legitimately desired. ' Aikens v. Wisconsin, 195 U.S. 194, 25 Sup.Ct. 3, 49 L.Ed. 154. As the combination among appellants was entered into and carried on in Wisconsin, a threshold inquiry is whether the present is a malicious mischief case under this paragraph,...