Bedford Cut Stone Co. v. Stone Cutters’ Assn., 274 U.S. 37 (1927)

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Author: Justice Brandeis

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Bedford Cut Stone Co. v. Stone Cutters’ Assn., 274 U.S. 37 (1927)

MR. JUSTICE BRANDEIS, dissenting.

The constitution of the Journeymen Stone Cutters’ Association provides: "No member of this association shall cut, carve or fit any material that has been cut by men working in opposition to this association."

For many years, the plaintiffs had contracts with the association under which its members were employed at their several quarries and works. In 1921, the plaintiffs refused to renew the contracts because certain rules or conditions proposed by the journeymen were unacceptable. Then came a strike. It was followed by a lockout, the organization by the plaintiffs of a so-called independent union, and the establishment of it at their plants. Repeated efforts to adjust the controversy proved futile. Finally, the association urged its members working on buildings in other states to observe the above provision of its constitution. Its position was

that, if employers will not employ our members in one place, we will decline to work for them in another, or to finish any work that has been started or party completed by men these employers are using to combat our organization.

The trial court dismissed the bill. The United States circuit court of appeals, affirming the decree, said:

After long negotiations and failure to reach a new working agreement, the union officers ordered that none of its members should further cut stone which had already been partly cut by nonunion labor, with the result that, on certain jobs in different states, stonecutters who were members of the union declined to do further cutting upon such stone. Where, as in some cases, there were few or no local stonecutters except such as belonged to the union, the completion of the buildings was more or less hindered by the order, the manifest object of which was to induce appellants to make a contract with the union for employment of only union stonecutters in the Indiana limestone district. It does not appear that the quarrying of stone, or sawing it into blocks, or the transportation of it, or setting it in the buildings, or any other building operation, was sought to be interfered with, and no actual or threatened violence appears, no picketing, no boycott, and nothing of that character.

If, in the struggle for existence, individual working men may, under any circumstances, cooperate in this way for self-protection even though the interstate trade of another is thereby restrained, the lower courts were clearly right in denying the injunction sought by plaintiffs. I have no occasion to consider whether the restraint, which was applied wholly intrastate, became in its operation a direct restraint upon interstate commerce. For it has long been settled that only unreasonable restraints are prohibited by the Sherman Law.* Standard Oil Co. v. United States, 221 U.S. 1, 56-58; United States v. American Tobacco Co., 221 U.S. 106, 178-180; Chicago Board of Trade v. United States, 246 U.S. 231, 238; United States v. Trenton Potteries Co., 273 U.S. 392. Compare United States v. Terminal Assn., 224 U.S. 383; United States v. Reading Co., 226 U.S. 324, 369. And the restraint imposed was, in my opinion, a reasonable one. The Act does not establish the standard of reasonableness. What is reasonable must be determined by the application of principles of the common law, as administered in federal courts, unaffected by state legislation or decision. Compare Duplex Printing Co. v. Deering, 254 U.S. 443, 466. Tested by these principles, the propriety of the unions’ conduct can hardly be doubted by one who believes in the organization of labor

Neither the individual stonecutters nor the unions had any contract with any of the plaintiffs or with any of their customers. So far as concerned the plaintiffs and their customers, the individual stonecutters were free either to work or to abstain from working on stone which had been cut at the quarries by members of the employers’ union. So far as concerned the association, the individual stonecutter was not free. He had agreed, when he became a member, that he would not work on stone "cut by men working in opposition to" the association. It was in duty bound to urge upon its members observance of the obligation assumed. These cut stone companies, who alone are seeking relief, were its declared enemies. They were seeking to destroy it. And the danger was great.

The plaintiffs are not weak employers opposed by a mighty union. They have large financial resources. Together, they ship 70 percent of all the cut stone in the country. They are not isolated concerns. They had combined in a local employers’ organization. And their organization is affiliated with the national employers’ organization called "International Cut Stone & Quarrymen’s Association." Standing alone, each of the 150 journeymen’s locals is weak. The average number of members in a local union is only 33. The locals are widely scattered throughout out the country. Strong employers could destroy a local "by importing scabs" from other cities. And many of the builders by whom the stonecutters were employed in different cities are strong. It is only through combining the 5,000 organized stonecutters in a national union, and developing loyalty to it, that the individual stonecutter anywhere can protect his own job.

The manner in which these individual stonecutters exercised their asserted right to perform their union duty by refusing to finish stone "cut by men working in opposition to" the association was confessedly legal. They were innocent alike of trespass and of breach of contract. They did not picket. They refrained from violence, intimidation, fraud, and threats. They refrained from obstructing otherwise either the plaintiffs or their customers in attempts to secure other help. They did not plan a boycott against any of the plaintiffs or against builders who used the plaintiffs’ product. On the contrary, they expressed entire willingness to cut and finish anywhere any stone quarried by any of the plaintiffs except such stone by any of partially "cut by men working in opposition to" the association. A large part of the plaintiffs’ product consisting of blocks, slabs, and sawed work was not affected by the order of the union officials. The individual stonecutter was thus clearly innocent of wrongdoing unless it was illegal for him to agree with his fellow craftsmen to refrain from working on the "scab" cut stone because it was an article of interstate commerce.

The manner in which the journeymen’s unions acted was also clearly legal. The combination complained of is the cooperation of persons wholly of the same craft, united in a national union, solely for self-protection. No outsider -- be he quarrier, dealer, builder, or laborer -- was a party to the combination. No purpose was to be subserved except to promote the trade interests of members of the Journeymen’s Association. There was no attempt by the unions to boycott the plaintiffs. There was no attempt to seek the aid of members of any other craft by a sympathetic strike or otherwise. The contest was not a class struggle. It was a struggle between particular employers and their employees. But the controversy out of which it arose related not to specific grievances, but to fundamental matters of union policy of general application throughout the country. The national association had the duty to determine, so far as its members were concerned, what that policy should be. It deemed the maintenance of that policy a matter of vital interest to each member of the union. The duty rested upon it to enforce its policy by all legitimate means. The association, its locals and officers, were clearly innocent of wrong doing unless Congress has declared that for union officials to urge members to refrain from working on stone "cut by men working in opposition" to it is necessarily illegal if thereby the interstate trade of another is restrained.

The contention that earlier decisions of this Court compel the conclusion that it is illegal seems to me unfounded. The cases may support the claim that, by such local abstention from work, interstate trade is restrained. But examination of the facts in those cases makes clear that they have no tendency whatsoever to establish that the restraint imposed by the unions in the case at bar is unreasonable. The difference between the simple refraining from work practiced here and the conduct held unreasonable in Duplex Printing Press Co. v. Deering, 254 U.S. 443, appears from a recital in that opinion of the defendants’ acts:

The acts embraced the following, with others: warning customers that it would be better for them not to purchase, or, having purchased, not to install, presses made by complainant, and threatening them with loss should they do so; threatening customers with sympathetic strikes in other trades; notifying a trucking company usually employed by customers to haul the presses not to do so, and threatening it with trouble if it should; inciting employees of the trucking company, and other men employed by customers of complainant, to strike against their respective employers in order to interfere with the hauling and installation of presses, and thus bring pressure to bear upon the customers; notifying repair shops not to do repair work on Duplex presses; coercing union men by threatening them with loss of union cards and with being blacklisted as "scabs" if they assisted in installing the presses; threatening an exposition company with a strike if it permitted complainant’s presses to be exhibited, and resorting to a variety of other modes of preventing the sale of presses of complainant’s manufacture in or about New York City, and delivery of them in interstate commerce, such as injuring and threatening to injure complainant’s customers and prospective customers, and persons concerned in hauling, handling, or installing the presses.

Pp. 463-464.

The character of the acts held in Duplex Printing Press Co. v. Deering to constitute unreasonable restraint is further shown by the scope of the injunction there prescribed (pp. 478-479):

There should be an injunction against defendants and the associations represented by them, and all members of those associations, restraining them, according to the prayer of the bill, from interfering or attempting to interfere with the sale, transportation, or delivery in interstate commerce of any printing press or presses manufactured by complainant, or the transportation, carting, installation, use, operation, exhibition, display, or repairing of any such press or presses, or the performance of any contract or contracts made by complainant respecting the sale, transportation, delivery, or installation of any such press or presses, by causing or threatening to cause loss, damage, trouble, or inconvenience to any person, firm, or corporation concerned in the purchase, transportation, carting, installation, use, operation, exhibition, display, or repairing of any such press or presses, or the performance of any such contract or contracts, and also and especially from using any force, threats, command, direction, or even persuasion with the object or having the effect of causing any person or persons to decline employment, cease employment, or not seek employment, or to refrain from work or cease working under any person, firm or corporation being a purchaser or prospective purchaser of any printing press or presses from complainant, or engaged in hauling, carting, delivering, installing, handling, using, operating, or repairing any such press or presses for any customer of complainant. Other threatened conduct by defendants or the associations they represent, or the members of such associations, in furtherance of the secondary boycott should be included in the injunction according to the proofs.

The difference between the facts here involved and those in the Duplex case does not lie only in the character of the acts complained of. It lies also in the occasion and purpose of the action taken and in the scope of the combination. The combination there condemned was not, as here, the cooperation for self-protection only of men in a single craft. It was an effort to win by invoking the aid of others, both organized and unorganized, not concerned in the trade dispute. The conduct there condemned was not, as here, a mere refusal to finish particular work begun "by men working in opposition to" the union. It was the institution of a general boycott not only of the business of the employer, but of the businesses of all who should participate in the marketing, installation, or exhibition of its product. The conduct there condemned was not, as here, action taken for self-protection against an opposing union installed by employers to destroy the regular union with which they long had had contracts. The action in the Duplex case was taken in an effort to unionize an open shop. Moreover, there, the combination of defendants was aggressive action directed against an isolated employer. Here, it is defensive action of working men directed against a combination of employers. The serious question on which the court divided in the Duplex case was not whether the restraint imposed was reasonable. It was whether the Clayton Act had forbidden federal courts to issue an injunction in that class of cases. See p. 464.

In Loewe v.Lawlor, 208 U.S. 274, Gompers v. Buck’s Stove Co., 221 U.S. 418, and Lawlor v. Loewe, 235 U.S. 522, the conduct held unreasonable was not, as here, a refusal to finish a product partly made by members of an opposing union. It was invoking the power of the consumer as a weapon of offensive warfare. There, a general boycott was declared of the manufacturer’s product. And the boycott was extended to the business of both wholesalers and retailers who might aid in the marketing of the manufacturer’s product. Moreover, the boycott was to be effected not by the cooperation merely of the few members of the craft directly and vitally interested in the trade dispute, but by the aid of the vast forces of organized labor affiliated with them through the American Federation of Labor.

In United States v. Brims, 272 U.S. 549, the combination complained of was not the cooperation merely of working men of the same craft. It was a combination of manufacturers of millwork in Chicago with building contractors who cause such work to be installed and the unions whose members are to be employed. Moreover the purpose of the combination was not primarily to further the interests of the union carpenters. The immediate purpose was to suppress competition with the Chicago manufacturers. As this Court said:

The respondent manufacturers found their business seriously impeded by the competition of material made by nonunion mills located outside of Illinois. . . . They wished to eliminate the competition of Wisconsin and other nonunion mills, which were paying lower wages and consequently could undersell them. . . . The local manufacturers, relieved from the competition that came through interstate commerce, increased their output and profits; they gave special discounts to local contractors; more union carpenters secured employment in Chicago, and their wages were increased. These were the incentives which brought about the combination.

In United Mine Workers v. Coronado Co., 259 U.S. 344, United Leather Workers v. Herkert, 265 U.S. 457, Industrial Association v. United States, 268 U.S. 64, as in Hopkins v. United States, 171 U.S. 578, Anderson v. United States, 171 U.S. 604, Montague & Co. v. Lowry, 193 U.S. 38, and Swift & Co. v. United States, 196 U.S. 375, the questions put in issue were not the reasonableness of the restraint, but whether the restraint was of interstate commerce.

Members of the Journeymen Stone Cutters’ Association could not work anywhere on stone which has been cut at the quarries by "men working in opposition" to it without aiding and abetting the enemy. Observance by each member of the provision of their constitution which forbids such action was essential to his own self-protection. It was demanded of each of loyalty to the organization and to his fellows. If, on the undisputed facts of this case, refusal to work can be enjoined, Congress created by the Sherman Law and the Clayton Act an instrument for imposing restraints upon labor which reminds one of involuntary servitude. The Sherman Law was held in United States v. United States Steel Corporation, 251 U.S. 417, to permit capitalists to combine in a single corporation 50 percent of the steel industry of the United States, dominating the trade through its vast resources. The Sherman Law was held in United States v. United Shoe Machinery Co., 247 U.S. 32, to permit capitalists to combine in another corporation practically the whole shoe machinery industry of the country, necessarily giving it a position of dominance over shoe manufacturing in America. It would indeed be strange if Congress had by the same Act willed to deny to members of a small craft of workingmen the right to cooperate in simply refraining from work when that course was the only means of self-protection against a combination of militant and powerful employers. I cannot believe that Congress did so.

MR. JUSTICE HOLMES concurs in this opinion.

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Chicago: Brandeis, "Brandeis, J., Dissenting," Bedford Cut Stone Co. v. Stone Cutters’ Assn., 274 U.S. 37 (1927) in 274 U.S. 37 274 U.S. 57–Joint_274 U.S. 65. Original Sources, accessed August 8, 2022, http://www.originalsources.com/Document.aspx?DocID=51P8UM3DJGFFATD.

MLA: Brandeis. "Brandeis, J., Dissenting." Bedford Cut Stone Co. v. Stone Cutters’ Assn., 274 U.S. 37 (1927), in 274 U.S. 37, pp. 274 U.S. 57–Joint_274 U.S. 65. Original Sources. 8 Aug. 2022. http://www.originalsources.com/Document.aspx?DocID=51P8UM3DJGFFATD.

Harvard: Brandeis, 'Brandeis, J., Dissenting' in Bedford Cut Stone Co. v. Stone Cutters’ Assn., 274 U.S. 37 (1927). cited in 1927, 274 U.S. 37, pp.274 U.S. 57–Joint_274 U.S. 65. Original Sources, retrieved 8 August 2022, from http://www.originalsources.com/Document.aspx?DocID=51P8UM3DJGFFATD.