Montgomery v. Pacific Electric Ry. Co.

• Decision Date: 26 May 1919
• Docket Number: 3236.
• Citation: 258 F. 382
• Parties: MONTGOMERY et al. v. PACIFIC ELECTRIC RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

258 F. 382

MONTGOMERY et al. v. PACIFIC ELECTRIC RY. CO.

No. 3236.

United States Court of Appeals, Ninth Circuit.

May 26, 1919

Herbert D. Gale and D. L. Cobb, both of Los Angeles, Cal., for appellants.

Oscar Lawler, Frank Karr, R. C. Gortner, and E. E. Morris, all of Los Angeles, Cal. (W. R. Millar, of Los Angeles, Cal., of counsel), for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS Circuit Judge.

The learned counsel of the appellants says in his brief that the questions involved on this appeal are:

'Whether or not men who labor have the right to organize, and when so organized to collectively leave the service of the employer, for the purpose of improving working conditions obtaining more pay, and the adjustment and redressing of grievances, and at the same time to induce and persuade others, by lawful means, to refuse to work under such conditions. Perhaps it would be more to the point to say that the question involved is whether or not labor, in its strife for betterment, is protected by the Clayton Act every provision of which is violated by the temporary injunction issued by the District Court. * * *

'So plainly are the terms of the restraining order and temporary injunction at variance with the provisions of the Clayton Act and the decisions of our appellate courts that it was apparently conceded before the District Court that the order and injunction would be erroneous, were it not for the decision in the case of Hitchman Coal & Coke Co. v. Mitchell et al., 245 U.S. 229, 38 Sup.Ct. 65, 62 L.Ed. 260, L.R.A. 1912C, 497, Ann. Cas. 1918B, 461, the form of the order in which case was followed in the present case. At first glance the action of the District Court in the case at bar, although a death blow to the legitimate aspirations of organized labor, seems, in a measure, justified by the decision in the Hitchman Case; but a closer study of that case fails to bear out that first impression. The injunction approved by the Supreme Court in the Hitchman Case does the same violence to the provisions of the Clayton Act as does the order at bar, but the Hitchman Case was originally begun in the District Court in October, 1907, while the Clayton Act did not become a law until October 15, 1914. No mention is made of the Clayton Act in either the majority or dissenting opinions in the Hitchman Case, and it seems, therefore, fair to conclude that the Supreme Court decided that case upon the condition of the law existing at the time of its commencement, and not upon the condition existing at the time of the decision, after the passage of the Clayton Act. It seems highly improbable that the Supreme Court intended to nullify an act of Congress, and to substitute its own arbitrary rule for legislative provisions. Certain it is that the provisions of the Clayton Act and the decision in the Hitchman Case cannot be reconciled.'

The preliminary injunction here appealed from was preceded by a temporary restraining order, based upon a verified bill, which, in substance, alleges among other things that the complainant, appellee here, is a common carrier of persons and property over its lines of railroad in the counties of Los Angeles, Orange, San Bernardino, and Riverside, and is engaged in interstate commerce, carrying a large number of passengers and handling a large tonnage of freight between points in the state of California and points in other states and territories of the United States and foreign countries, employing upwards of 1,500 men in and about its business, and having a daily gross income of more than $20,000; that the defendants Brotherhood of Railroad Trainmen and Brotherhood of Locomotive Engineers are unincorporated associations, having headquarters at Cleveland, Ohio, the defendants Montgomery and Farquharson, appellants here, being residents of that city, and respectively grand officers of the brotherhoods mentioned, and that the other appellants are the officers and agents at Los Angeles; that during the war the United States established posts and encampments at Arcadia and Ft. McArthur, on the appellee's railroad lines in Los Angeles county, to and from which troops and supplies are being constantly transported, and that the maintenance and operation of the appellee's said railway systems unimpaired is essential; that during the war large shipyards engaged in emergency shipbuilding for the government have been established at Long Beach and San Pedro, on the lines of the appellee, and because of lack of housing facilities at those places it is necessary for upwards of 5,000 workmen, employed at such yards, to travel daily between the cities of Long Beach and Los Angeles and their places of employment; that without the constant, continuous, and adequate service of the complainant for the transportation of such labor to and from such shipyards their activities would be seriously impaired; that at El Segundo, on the complainant's line of railway, there is a large oil refinery, the products of which are required for the operation of steam railroads under the control of the government, and engaged primarily in serving urgent war needs, and that the appellee is being urged by the government to expedite deliveries of such oil from said refinery for the use of such steam roads; that for more than five years prior to, and at the time of the filing of the bill, it had been and was the fixed policy of the appellee to prevent unionizing its employes, and that by the terms and conditions of the contract of employment with each of its employes it was agreed that the latter should deal directly with its employer, and not through any union or alleged representative body; that the appellants, well knowing such terms of employment, had by false representation, coercion, threats, inducements, and persuasions conducted a campaign among the employes of the appellee for the purpose of creating a union or organization of the latter, taking over all rights of said employes in dealing with their employer and denying to the latter its right to deal with each employe individually; that as a result of such campaign more than 1,200 of the employes of the appellee had been induced to unite themselves with the appellants Montgomery and Farquharson in an agreement to the effect that they would thereafter refuse to deal with the appellee as individuals, and only as an organization, and that upon any refusal of the appellee to accept such new status, or to recognize their said organized form, or to accede to any of their demands, such employes would strike and withdraw from the service of the appellee, and from the performance of the public duties in which, by, through, and with the aid of said employes, appellee had been and was engaged; that the appellants had accomplished the organization and unionizing of more than 1,200 of the appellee's employes, and had procured a vote by which it had been resolved and determined between the appellants and the said employes that unless the appellee would discontinue its said policy of dealing only with its employes directly, and unless it would agree to recognize such organization, and treat and deal with the latter regarding contracts of employment between itself and its individual employes, the said employes would on the 2d day of July, 1918, at 7 o'clock p.m., strike and withdraw from the service of the appellee; that the withdrawal of the said employes, or any considerable number of them, from such service as so threatened, would interfere with and obstruct the performance of the appellee's duties as a common carrier and the transportation of federal troops and supplies for war purposes, and would interfere with the service of appellee as a war utility, and inflict great and irreparable injury; that the appellants in furtherance of their said plan had used coercion, threats, and various persuasions upon the said employes of the appellee, and had by and through their agents, during the 30 days preceding the filing of the bill, interfered with and attempted to interfere with such employes of the appellee for the purpose of organizing and unionizing them, without the consent of the appellee, by representing and causing to be represented to such employes, and to persons who might become such, that they would be likely to suffer some loss or trouble in continuing in or entering the employment of the appellee, because the latter would not recognize the union and was running a nonunion railroad; that the appellants had, during said 30-day period, in aid of their purpose to cause the employes of the appellee to break their contracts of service, enticed them to leave the service of the appellee for the reasons stated, and had entered upon the grounds and premises of the appellee, and into its cars, for the purpose of interfering with and hindering and obstructing the said business of the appellee, and had there and elsewhere by threats, intimidation, and persuasion, and by abusive language, attempted to compel and induce such employes to refuse and fail to perform their duties, and to leave the service of the appellee, and to compel persons seeking employment with the appellee not to accept such employment; that all of the said acts of the said appellants were designed and would have the effect of preventing the said employes of the appellee from peaceably or otherwise prosecuting their work.

In response to an order to show cause why a preliminary injunction should not be granted, the matter came on for hearing, at which time there was presented to the court an affidavit of the defendants Montgomery and Farquharson setting forth, among other things, that in the early part of May, 1918, the employes of the complainant company commenced to organize themselves into unions as divisions and...