United States v. Employing Plasterers Assn., 347 U.S. 186 (1954)

Author: Justice Minton

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United States v. Employing Plasterers Assn., 347 U.S. 186 (1954)

MR. JUSTICE MINTON, with whom MR. JUSTICE DOUGLAS joins, dissenting.*

That, accepting the pleadings as true, there are and were conspiracies to restrain is not open to question. The question is whether the Sherman Act applies, and that depends upon whether the conspiracies are to restrain interstate commerce. In my opinion, the activities here complained of are wholly intrastate, and the restraint upon interstate commerce, if any, is so indirect, remote, and inconsequential as to be without effect, and wholly foreign to an intent or purpose to conspire to restrain interstate commerce.

There is no interference with interstate commerce. That commerce ends when the plaster and lath reach the building site, whether they come first to material suppliers and at rest in their warehouses and afterwards on order delivered to the contractors on the job, as most of the transactions are alleged to be handled, or are delivered directly to the job. The construction of a building and the incorporation therein of plaster and lath are purely local transactions.

Nor is building commerce, and the fact that the materials to be used are shipped in from other states does not make building a part of such interstate commerce.

Anderson v. Shipowners’ Assn., 272 U.S. 359, 364.

The Government does not and could not contend that building is commerce. It contends that the appellees’ acts affect commerce, relying upon such cases as Labor Board v. Denver Building & Const. Trades Council, 341 U.S. 675, and Walling v. Jacksonville Paper Co., 317 U.S. 564. But those cases arose under different statutes, the sweep of which is broader than that of § 1 of the Sherman Act, which declares illegal only those contracts, combinations and conspiracies "in restraint of trade or commerce among the several States." The Denver Council case arose under the Labor Management Relations Act, which provides:

SEC. 10. (a) The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. . . .

61 Stat. 146, 29 U.S.C. § 160(a). Section 2 of that Act defines "affecting commerce" as follows:

(7) The term "affecting commerce" means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.

61 Stat. 138, 29 U.S.C. § 152(7).

The Jacksonville Paper case arose under the Fair Labor Standards Act, which is applicable to "employees who [are] engaged in commerce or in the production of goods for commerce. . . ." 52 Stat. 1062, 29 U.S.C. § 206. Furthermore, that case dealt with transactions that took place in the stream of commerce. Compare Higgins v.Carr Bros. Co., 317 U.S. 572. In the instant cases, the stream of commerce stops at the building site.

Insofar as the factual allegations in these complaints are concerned, the appellees are essentially charged with conspiring to divide the plastering and lathing business in the Chicago area among themselves, limiting the number and classes of persons who may become contractors or union members and reducing competition among the contractors, primarily by means of union control over those who may engage in the business either as contractors or as union members. The acts of the appellees here complained of thus are all related to local building construction and those permitted to engage in such construction. The allegations do not establish any interference with the flow of commerce at its beginning or end or in the course of its flow, or that anything is done to influence the place from whence or to which the materials come or go, or their price. To be sure, the complaints contain bald statements to the effect that the alleged conspiracies are in restraint of interstate commerce. However, these conclusional allegations add nothing, and do not conceal the failure to set forth facts showing any direct or substantial restraint on interstate commerce or a purpose or intent to do so. What is charged in these cases may constitute a restraint under state jurisdiction, and may remotely or indirectly affect interstate commerce. But that has been consistently held to be no violation of the Sherman Act. Apex Hosiery Co. v. Leader, 310 U.S. 469, 495; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 107.

Industrial Assn. of San Francisco v. United States, 268 U.S. 64, was a case involving far more offensive action than the instant cases. In that case, contractors and suppliers, in order to force an "open shop," required builders to secure permits for certain materials from a builders’ exchange, refusing such permits to those who did not maintain an open shop. Some of the materials came from other States, and the permits were so handled as to control materials, such as plumbers’ supplies, that came altogether from out-of-state sources. This Court, commenting on the "established general facts" of the plan, said:

Interference with interstate trade was neither desired nor intended. On the contrary, the desire and intention was to avoid any such interference, and, to this end, the selection of materials subject to the permit system was substantially confined to California productions. The thing aimed at and sought to be attained was not restraint of the interstate sale or shipment of commodities, but was a purely local matter, namely, regulation of building operations within a limited local area, so as to prevent their domination by the labor unions. Interstate commerce -- indeed, commerce of any description -- was not the object of attack, "for the sake of which the several specific acts and courses of conduct were done and adopted." Swift & Co. v. United States, 196 U.S. 375, 397. The facts and circumstances which led to and accompanied the creation of the combination and the concert of action complained of, which we have briefly set forth, apart from other and more direct evidence, are "ample to supply a full local motive for the conspiracy." United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 411.

268 U.S. at 77.

In language prophetic, this Court further said:

But here, the delivery of the plaster to the local representative or dealer was the closing incident of the interstate movement, and ended the authority of the federal government under the Commerce Clause of the Constitution. What next was done with it was the result of new and independent arrangements.

268 U.S. at 79.

Although the permits were used so as to interfere with the free movement of materials and supplies from other States, this Court said:

It was, however, an interference not within the design of the appellants, but purely incidental to the accomplishment of a different purpose. The court below laid especial stress upon the point that plumbers’ supplies, which for the most part were manufactured outside the state, though not included under the permit system, were prevented from entering the state by the process of refusing a permit to purchase other materials, which were under the system, to any one who employed a plumber who was not observing the "American plan." This is to say, in effect, that the building contractor, being unable to purchase the permit materials, and consequently unable to go on with the job, would have no need for plumbing supplies, with the result that the trade in them, to that extent, would be diminished. But this ignores the all-important fact that there was no interference with the freedom of the outside manufacturer to sell and ship or of the local contractor to buy. The process went no further than to take away the latter’s opportunity to use, and therefore his incentive to purchase. . . .

* * * *

The alleged conspiracy and the acts here complained of spent their intended and direct force upon a local situation -- for building is as essentially local as mining, manufacturing or growing crops -- and if, by a resulting diminution of the commercial demand, interstate trade was curtailed either generally or in specific instances, that was a fortuitous consequence so remote and indirect as plainly to cause it to fall outside the reach of the Sherman Act.

268 U.S. at 80, 82.

As I see it, that is all that happens here. Interstate commerce has ended. There is no intent or purpose to restrain interstate commerce. The effect upon commerce is incidental, remote, and indirect. It is a restraint that spends itself on a purely local incident. If contractors of materials and supplies may combine to compel an open shop by far more drastic measures, as in the Industrial Association case, then surely the workers and contractors may combine to promote a closed system by an agreement local in its nature.

The case of Levering & Garrigues Co. v. Morrin, 289 U.S. 103, which followed the Industrial Association case, is in point here. In that case, the companies, engaged in the building of steel bridges, operated open shops. The unions, by strike and other techniques, sought to force closed shops. The companies sought an injunction under the Sherman Act. The complaint was dismissed for failure to state a cause of action. This Court said:

Accepting the allegations of the bill at their full value, it results that the sole aim of the conspiracy was to halt or suppress local building operations as a means of compelling the employment of union labor, not for the purpose of affecting the sale or transit of materials in interstate commerce. Use of the materials was purely a local matter, and the suppression thereof the result of the pursuit of a purely local aim. Restraint of interstate commerce was not an object of the conspiracy. Prevention of the local use was in no sense a means adopted to effect such a restraint. It is this exclusively local aim, and not the fortuitous and incidental effect upon interstate commerce, which gives character to the conspiracy. . . . If thereby the shipment of steel in interstate commerce was curtailed, that result was incidental, indirect, and remote, and therefore not within the antitrust acts, as this court, prior to the filing of the present bill, had already held. . . .

289 U.S. at 107.

If a union may strike and obtain its objective of a closed shop without interfering with interstate commerce, as in the Levering case, the unions in the instant cases could certainly bargain and agree with the employers to reach the same result. See also United Leather Workers’ International Union v. Herkert & Meisel Trunk Co., 265 U.S. 457, and see United States v. Frankfort Distilleries, 324 U.S. 293, 297, where the cases discussed above are distinguished.

The Government has relied heavily upon Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219. But that decision, as did the Frankfort Distilleries case, recognized the distinct line of cases I rely upon here as distinguishable from the holding therein. 334 U.S. at 234.

In No. 440, it is alleged that the appellees have prevented and discouraged out-of-state plastering contractors from doing business in the Chicago area by slowdowns, fines on union labor, intimidation, and other means. Assume that such tactics are effective to keep out-state contractors from seeking contracts in the Chicago area. Contracting to plaster a building in Chicago by an out-state contractor is not commerce, even if the contractor did intend to bring his men from out-state, any more than bringing men from one State into another to play baseball is commerce. Toolson v. New YorkYankees, 346 U.S. 356; Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200, 208. The materials to plaster the building flow without interruption to the building site. There, a local labor situation arises that has nothing to do with commerce or any conspiracy to restrain it. That is all that is involved here, and therefore commerce in the sense of that term as used in the Sherman Act is not involved.

I would affirm.

* [This opinion applies also to No. 439, United States v. Employing Lathers assn. et al, post, p. 198.]


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Chicago: Minton, "Minton, J., Dissenting," United States v. Employing Plasterers Assn., 347 U.S. 186 (1954) in 347 U.S. 186 347 U.S. 191–347 U.S. 197. Original Sources, accessed April 1, 2023, http://www.originalsources.com/Document.aspx?DocID=L3R3Q4F4D41Q59Y.

MLA: Minton. "Minton, J., Dissenting." United States v. Employing Plasterers Assn., 347 U.S. 186 (1954), in 347 U.S. 186, pp. 347 U.S. 191–347 U.S. 197. Original Sources. 1 Apr. 2023. http://www.originalsources.com/Document.aspx?DocID=L3R3Q4F4D41Q59Y.

Harvard: Minton, 'Minton, J., Dissenting' in United States v. Employing Plasterers Assn., 347 U.S. 186 (1954). cited in 1954, 347 U.S. 186, pp.347 U.S. 191–347 U.S. 197. Original Sources, retrieved 1 April 2023, from http://www.originalsources.com/Document.aspx?DocID=L3R3Q4F4D41Q59Y.