Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921)

Author: Justice Brandeis

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Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921)

MR. JUSTICE BRANDEIS, dissenting, with whom MR. JUSTICE HOLMES and MR. JUSTICE CLARKE, concur.

The Duplex Company, a manufacturer of newspaper printing presses, seeks to enjoin officials of the machinists’ and affiliated unions from interfering with its business by inducing their members not to work for plaintiff or its customers in connection with the setting up of presses made by it. Unlike Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, there is here no charge that defendants are inducing employees to break their contracts. Nor is it now urged that defendants threaten acts of violence. But plaintiff insists that the acts complained of violate both the common law of New York and the Sherman Act, and that, accordingly, it is entitled to relief by injunction under the state law and under § 16 of the Clayton Act, October 15, 1914, c. 323, 38 Stat. 730, 737.

The defendants admit interference with plaintiff’s business, but justify on the following ground: there are in the United States only four manufacturers of such presses, and they are in active competition. Between 1909 and 1913, the machinists’ union induced three of them to recognize and deal with the union, to grant to eight-hour day, to establish a minimum wage scale, and to comply with other union requirements. The fourth, the Duplex Company, refused to recognize the union; insisted upon conducting its factory on the open shop principle; refused to introduce the eight-hour day and operated, for the most part, ten hours a day; refused to establish a minimum wage scale; and disregarded other union standards. Thereupon, two of the three manufacturers who had assented to union conditions notified the union that they should be obliged to terminate their agreements with it unless their competitor, the Duplex Company, also entered into the agreement with the union, which, in giving more favorable terms to labor, imposed correspondingly greater burdens upon the employer. Because the Duplex Company refused to enter into such an agreement, and in order to induce it to do so, the machinists’ union declared a strike at its factory, and, in aid of that strike, instructed its members and the members of affiliated unions not to work on the installation of presses which plaintiff had delivered in New York. Defendants insisted that, by the common law of New York, where the acts complained of were done and where this suit was brought, and also by § 20 of the Clayton Act, 38 Stat. 730, 738, the facts constitute a justification for this interference with plaintiff’s business.

First. As to the rights at common law: defendants’ justification is that of self-interest. They have supported the strike at the employer’s factory by a strike elsewhere against its product. They have injured the plaintiff not maliciously, but in self-defense. They contend that the Duplex Company’s refusal to deal with the machinists’ union and to observe its standards threatened the interest not only of such union members as were its factory employees, but even more of all members of the several affiliated unions employed by plaintiff’s competitors, and by others whose more advanced standards the plaintiff was, in reality, attacking; and that none of the defendants and no person whom they are endeavoring to induce to refrain from working in connection with the setting up of presses made by plaintiff is an outsider, an interloper. In other words, that the contest between the company and the machinists’ union involves vitally the interest of every person whose cooperation is sought. May not all with a common interest join in refusing to expend their labor upon articles whose very production constitutes an attack upon their standard of living and the institution which they are convinced supports it? Applying common law principles, the answer should, in my opinion, be yes if, as a matter of fact, those who so cooperate have a common interest.

The change in the law by which strikes once illegal and even criminal are now recognized as lawful was effected in America largely without the intervention of legislation. This reversal of a common law rule was not due to the rejection by the courts of one principle and the adoption in its stead of another, but to a better realization of the facts of industrial life. It is conceded that, although the strike of the workmen in plaintiff’s factory injured its business, the strike was not an actionable wrong, because the obvious self-interest of the strikers constituted a justification. See Pickett v. Walsh, 192 Massachusetts 572. Formerly, courts held that self-interests could not be so served. Commons, History of Labor in the United States, vol. 2, c. 5. But even after strikes to raise wages or reduce hours were held to be legal because of the self-interest, some courts held that there was not sufficient causal relationship between a strike to unionize a shop and the self-interest of the strikers to justify injuries inflicted. Plant v. Woods, 176 Massachusetts 492; Lucke v. Clothing Cutters’ Assembly, 77 Maryland 396; Erdman v. Mitchell, 207 Pa.St. 79. But other courts, repeating the same legal formula, found that there was justification, because they viewed the facts differently. National Protective Association v. Cumming, 170 N.Y. 315; Kemp v. Division No. 241, 255 Illinois 213; Roddy v. United Mine Workers, 41 Oklahoma 621. When centralization in the control of business brought its corresponding centralization in the organization of workingmen, new facts had to be appraised. A single employer might, as in this case, threaten the standing of the whole organization and the standards of all its members; and when he did so, the union, in order to protect itself, would naturally refuse to work on his materials, wherever found. When such a situation was first presented to the courts, judges concluded that the intervention of the purchaser of the materials established an insulation through which the direct relationship of the employer and the workingmen did not penetrate, and the strike against the material was considered a strike against the purchaser by unaffected third parties. Burnham v. Dowd, 217 Massachusetts 351; Purvis v. United Brotherhood, 214 Pa.St. 348; Booth v. Burgess, 72 N.J.Eq. 181. But other courts, with better appreciation of the facts of industry, recognized the unity of interest throughout the union, and that, in refusing to work on materials which threatened it, the union was only refusing to aid in destroying itself. Bossert v. Dhuy, 221 N.Y. 342; Cohn & Roth Electric Co. v. Bricklayers Union, 92 Connecticut 161; Gill Engraving Co. v. Doerr, 214 Fed.Rep. 111; State v. Van Pelt, 136 N.C. 633; Grant Construction Co. v. St. Paul Building Trades Council, 136 Minnesota 167; Pierce v. Stablemen’s Union, 156 California 70, 76.

So, in the case at bar, deciding a question of fact upon the evidence introduced and matters of common knowledge, I should say, as the two lower courts apparently have said, that the defendants and those from whom they sought cooperation have a common interest which the plaintiff threatened. This view is in harmony with the views of the Court of Appeals of New York. For, in New York, although boycotts like that in Loewe v. Lawlor, 208 U.S. 274, are illegal because they are conducted not against a product, but against those who deal in it and are carried out by a combination of persons not united by common interest, but only by sympathy (Auburn Draying Co. v. Wardwell, 227 N.Y. 1), it is lawful for all members of a union by whomever employed to refuse to handle materials whose production weakens the union. Bossert v. Dhuy, supra; P. Reardon, Inc., v. Caton, 189 App.Div. 501; compare Paine Lumber Co. v. Neal, 244 U.S. 459, 471.

The voluntary adoption of a rule not to work on nonunion-made material and its enforcement differs only in degree from such voluntary rule and its enforcement in a particular case. Such a determination also differs entirely from a general boycott of a particular dealer or manufacturer with a malicious intent and purpose to destroy the goodwill or business of such dealer or manufacturer.

Bossert v. Dhuy, supra, p. 355. In my opinion, therefore, plaintiff had no cause of action by the common law of New York.

Second. As to the antitrust laws of the United States, Section 20 of the Clayton Act declares:

Nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States.

The acts which are thus referred to are whether performed singly or in concert:

Terminating any relation of employment, or . . . ceasing to perform any work or labor, or . . . recommending, advising or persuading others by peaceful means so to do, or . . . attending at any place where such person or persons may lawfully be, for the purpose of obtaining or communicating information, or . . . peacefully persuading any person to work or to abstain from working, or . . . ceasing to patronize or employ any party to such dispute, . . . or . . . recommending, advising, or persuading others by peaceful and lawful means so to do, or . . . paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value, or peacefully assembling in a lawful manner and for lawful purposes, or . . . doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto.

This statute was the fruit of unceasing agitation, which extended over more than 20 years and was designed to equalize before the law the position of workingmen and employer as industrial combatants. Aside from the use of the injunction, the chief source of dissatisfaction with the existing law lay in the doctrine of malicious combination,{1} and, in many parts of the country, in the judicial declarations of the illegality at common law of picketing and persuading others to leave work. The grounds for objection to the latter are obvious. The objection to the doctrine of malicious combinations requires some explanation. By virtue of that doctrine, damage resulting from conduct such as striking or withholding patronage or persuading others to do either, which without more might be damnum absque injuria because the result of trade competition, became actionable when done for a purpose which a judge considered socially or economically harmful and therefore branded as malicious and unlawful.{2} It was objected that, due largely to environment, the social and economic ideas of judges, which thus became translated into law, were prejudicial to a position of equality between workingman and employer; that, due to this dependence upon the individual opinion of judges, great confusion existed as to what purposes were lawful and what unlawful;{3} and that, in any event, Congress, not the judges, was the body which should declare what public policy in regard to the industrial struggle demands.

By 1914, the ideas of the advocates of legislation had fairly crystalized upon the manner in which the inequality and uncertainty of the law should be removed. It was to be done by expressly legalizing certain acts regardless of the effects produced by them upon other persons. As to them, Congress was to extract the element of injuria from the damages thereby inflicted, instead of leaving judges to determine according to their own economic and social views whether the damage inflicted on an employer in an industrial struggle was damnum absque injuria, because an incident of trade competition, or a legal injury, because in their opinion, economically and socially objectionable. This idea was presented to the committees which reported the Clayton Act.{4} The resulting law set out certain acts which had previously been held unlawful, whenever courts had disapproved of the ends for which they were performed; it then declared that, when these acts were committed in the course of an industrial dispute, they should not be held to violate any law of the United States. In other words, the Clayton Act substituted the opinion of Congress as to the propriety of the purpose for that of differing judges, and thereby it declared that the relations between employers of labor and workingmen were competitive relations, that organized competition was not harmful, and that it justified injuries necessarily inflicted in its course.{5} Both the majority and the minority report of the House committee indicate that such was its purpose.{6} If, therefore, the act applies to the case at bar, the acts here complained of cannot "be considered or held to be violations of any law of the United States," and hence do not violate the Sherman Act.

The Duplex Company contends that § 20 of the Clayton Act does not apply to the case at bar, because it is restricted to cases

between an employer and employees, or between employers and employees, or between employees or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment,

whereas the case at bar arises between an employer in Michigan and workingmen in New York not in its employ, and does not involve their conditions of employment. But Congress did not restrict the provision to employers and workingmen in their employ. By including "employers and employees" and "persons employed and persons seeking employment," it showed that it was not aiming merely at a legal relationship between a specific employer and his employees. Furthermore, the plaintiff’s contention proves too much. If the words are to receive a strict technical construction, the statute will have no application to disputes between employers of labor and workingmen, since the very acts to which it applies sever the continuity of the legal relationship. Iron Moulders’ Union v. Allis-Chalmers Co., 166 Fed.Rep. 45, 52-53; Louisville, Evansville & St. Louis R.R. Co. v. Wilson, 138 U.S. 501, 505; cf. Rex. v. Neilson, 44 N.S. 488, 491. The further contention that this case is not one arising out of a dispute concerning the conditions of work of one of the parties is, in my opinion, founded upon a misconception of the facts.

Because I have come to the conclusion that both the common law of a state and a statute of the United States declare the right of industrial combatants to push their struggle to the limits of the justification of self-interest, I do not wish to be understood as attaching any constitutional or moral sanction to that right. All rights are derived from the purposes of the society in which they exist; above all rights rises duty to the community. The conditions developed in industry may be such that those engaged in it cannot continue their struggle without danger to the community. But it is not for judges to determine whether such conditions exist, nor is it their function to set the limits of permissible contest and to declare the duties which the new situation demands. This is the function of the legislature, which, while limiting individual and group rights of aggression and defense, may substitute processes of justice for the more primitive method of trial by combat.

1. See "Malice and Unlawful Interference," Ernest Freund, 11 Harv.L.Rev. 449, 461; "Rights of Traders had Laborers," Edw. F. McClennen, 16 Harv.L.Rev. 237, 244; "Crucial Issues in Labor Litigation," Jeremiah Smith, 20 Harv.L.Rev. 429, 451; Principles of Labor Legislation, Commons and Andrews, pp. 95-116; Hoxie, Trade Unionism in the United States, p. 231; Groat, Attitude of American Courts towards Labor Cases, pp. 76-77; 221; 246; J. W. Bryan, The Development of the English Law of Conspiracy, p. 147 et seq.

Report of the Industrial Commission, 1901, vol. XVII, p. cxiv, p. 515, 556; Report of Royal Commission on Trade Disputes and Trade Combinations, 1906, p. 12; Report of Commission on Industrial Relations, 1915, pp. 135, 377.

For attempts to reach this doctrine by legislation see also 52d Congress, H.R. 6640, § 1; 56th Congress, H.R. 11667, § 7; 57th Congress, S. 649, § 7.

2. See James Wallace Bryan, The Development of the English Law of Conspiracy:

We find little difficulty in attributing the illegality of combinations to strike or otherwise to advance the interests of labor not to the material loss inflicted upon the employer concerned, but to the harm supposed to result from their activities to the public at large. And since the judge or jury believe the conduct socially bad, and since it is admittedly done intentionally, not inadvertently, they declare that the actors are animated by malice which negatives the justification of "fair competition," e.g., Lord Bowen in Mogul S. S. Co. v. MacGregor, Gow & Co. 1892 A.C. 25, "intentionally to do that which is calculated . . . to damage . . . and does damage another in his property or trade is actionable if done without just cause or excuse, and . . . is what the law calls a malicious injury."

3. See A. V. Dicey, "The Combination Laws as Illustrating the Relation Between Law and Opinion in England During the Nineteenth Century," 17 Harv.L.Rev. 511, 532: "The very confusion of the present state of the law corresponds with and illustrates a confused state of opinion."

4. It was said that this doctrine

completely unsettle[d] the law . . . and set up the chancellor in the midst of the labor organization at the inception of a strike as an arbiter of their conduct, as well as a controller or their fates.

62d Congress, 2d Sess. Hearings Before a Subcommittee of the Senate Committee on the judiciary on H.R. 23635, p. 429.

Again, it was pointed out that the incorporation of this idea in the Sherman Law had "done violence to the right to strike -- to cease work collectively . . . and to the right to withhold patronage and to agree to withhold patronage." Brief by Samuel Gompers, Hearings before the House Committee on the Judiciary on Trust Legislation, 63d Congress, 2d Sess., vol. 2, p. 1808.

5. Compare the following:

There are apparently, only two lines of action possible: first, to restrict the rights and powers of employers to correspond in substance to the powers and rights now allowed to trade unions, and second, to remove all restriction which now prevent the freedom of action of both parties to industrial disputes, retaining only the ordinary civil and criminal restraints for the preservation of life, property and the public peace. The first method has been tried and failed absolutely. . . . The only method therefore seems to be the removal of all restrictions upon both parties, thus legalizing the strike, the lockout, the boycott, the blacklist, the bringing in or strike-breakers, and peaceful picketing.

Report of the Committee on Industrial Relations, 1915, p. 136.

6. The majority declared that the section sets out "specific acts which the best opinion of the courts holds to be within the right of parties involved upon one side or the other of a trade dispute," which it has been necessary to affirm because of "the divergent views which the courts have expressed on the subject and the difference between courts in the application of recognized rules." The minority insisted that the section prescribes

a set rule forbidding under any circumstances the enjoining of certain acts which may or may not be actuated by a malicious motive or for the purpose of working an unlawful injury, etc.

63d Congress, 2nd sess., House Report 627, p. 30; id., Part 2, Appendix A, p. 20.


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Chicago: Brandeis, "Brandeis, J., Concurring," Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921) in 254 U.S. 443 254 U.S. 480–254 U.S. 488. Original Sources, accessed June 4, 2023, http://www.originalsources.com/Document.aspx?DocID=DMLS76XU1M1VKZ6.

MLA: Brandeis. "Brandeis, J., Concurring." Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921), in 254 U.S. 443, pp. 254 U.S. 480–254 U.S. 488. Original Sources. 4 Jun. 2023. http://www.originalsources.com/Document.aspx?DocID=DMLS76XU1M1VKZ6.

Harvard: Brandeis, 'Brandeis, J., Concurring' in Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921). cited in 1921, 254 U.S. 443, pp.254 U.S. 480–254 U.S. 488. Original Sources, retrieved 4 June 2023, from http://www.originalsources.com/Document.aspx?DocID=DMLS76XU1M1VKZ6.