1. A combination or conspiracy of union stone-cutters to
restrain the interstate commerce of certain building stone
producers by declaring their stone "unfair" and forbidding members
of the union to work upon it in building construction in other
states, for which it was extensively bought and used, and thereby
coercing or inducing local employers to refrain from purchasing it,
is a violation of the Anti-Trust Act. Pp. 274 U.S. 45
, 274 U.S. 54
2. The fact that the ultimate object was to unionize the cutters
and carvers of stone at the quarries of the producers did not make
the combination lawful. P. 274
3. A private suit to enjoin a combination violative of the
Sherman Act will lie under § 16 of the Clayton Act where there is a
dangerous probability of injury to the plaintiff, though no actual
injury has been suffered. P. 274
9 F.2d 40 reversed.
Certiorari (273 U.S. 677) to a decree of the circuit court of
appeals which affirmed the district court in dismissing a bill
brought by owners of limestone quarries in Indiana to enjoin a
combination alleged to violate the Anti-Trust Act. The defendants
were a general union
Page 274 U. S. 38
of stone-cutters, and some of its constituent locals and their
Page 274 U. S. 41
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Petitioners, Bedford Cut Stone Company and 23 others, all, with
one or two exceptions, Indiana corporations, are in the business of
quarrying or fabricating, or both quarrying and fabricating,
Indiana limestone in what is called the Bedford-Bloomington
district in the State of Indiana. Their combined investment is
about $6,000,000, and their annual aggregate sales amount to about
$15,000,000, more than 75 percent of which are made in interstate
commerce to customers outside the State of Indiana. The Journeymen
Stone Cutters' Association of North America, sometimes called and
hereinafter referred as the "General Union," is an association of
mechanics engaged in the stone-cutting trade. It has a
constitution, bylaws, and officers, and an income derived from
assessments upon its members. Its principal headquarters are in
Indiana, and it has a membership of about 5,000 persons, divided
into over 150 local unions, located in various states and in
Canada, each of such local unions having its own bylaws, officers,
and income derived from like assessments. By virtue of his
membership, each member of these local unions is a member of the
General Union. The members of the General Union and allied locals
throughout the United States are stone cutters, carvers, curb
cutters, curb setters, bridge cutters, planermen, lathemen, and
carborundum moulding machine operators engaged in the cutting,
patching, and fabrication of all natural and artificial stones, and
the General Union claims jurisdiction over all of them.
This suit was brought by petitioners against the General Union
and some of its officers, and a number of affiliated local unions
and some of their officers, to enjoin
Page 274 U. S. 42
them from combining and conspiring together to commit, and from
committing, various acts in restraint of interstate commerce in
violation of the federal Anti-Trust Act, c. 647, 26 Stat. 209, and
to petitioners' great and irreparable damage. The Federal District
Court for the District of Indiana, after a hearing, refused a
preliminary injunction, and subsequently, on final hearing, entered
a decree dismissing the bill for want of equity. On appeal, this
decree was affirmed by the court of appeals upon the authority of
an earlier opinion in the same case. 9 F.2d 40.
The facts, so far as necessary to be stated, follow. Limestone
produced by petitioners is quarried and fabricated largely for
building construction purposes. The stone is first taken in rough
blocks from the earth, and generally then cut into appropriate
sizes, and sometimes planed. Part of this product is shipped
directly to buildings, where it is fitted, trimmed, and set in
place, the remainder being sold in the rough to contractors to be
fabricated. The stone sold in interstate commerce comes into
competition with other kinds of natural and artificial stone. The
principal producers of artificial stone are unionized, and are
located outside of Indiana. Before 1921, petitioners carried on
their work in Indiana under written agreement with the General
Union, but, since that time, they have operated under agreements
with unaffiliated unions, with the effect of closing their shops
and quarries against the members of the General Union and its
locals. Prior to the filing of the bill of complaint, the General
Union issued a notice to all its locals and members directing its
members not to work on stone "that has been started -- planed,
turned, cut, or semi-finished -- by men working in
Page 274 U. S. 43
opposition to our organization," and setting forth that a
convention of the union had determined that
"members were to rigidly enforce the rule to keep off all work
started by men working in opposition to our organization, with the
exception of the work of Shea-Donnelly, which firm holds an
injunction against our association."
Stone produced by petitioners by labor eligible to membership in
respondents' unions was declared "unfair;" and the president of the
General Union announced that the rule against handling such stone
was to be promptly enforced in every part of the country. Most of
the stone workers employed, outside the State of Indiana, on the
buildings where petitioners' product is used are members of the
General Union, and in most of the industrial centers, building
construction is on a closed shop union basis.
The rule requiring members to refrain from working on "unfair"
stone was persistently adhered to and effectively enforced against
petitioners' product in a large number of cities and in many
states. The evidence shows many instances of interference with the
use of petitioners' stone by interstate customers, and expressions
of apprehension on the part of such customers of labor troubles if
they purchased the stone. The president of the General Union
himself testified, in effect, that generally the men were living up
to the order, and, if it were shown to him that they did not do so
in any place, he would see that they did. Members found working on
petitioners' product were ordered to stop and threatened with a
revocation of their cards if they continued, and the order of the
General Union seems to have been enforced even when it might be
against the desire of the local union. The transcript contains the
record of a hearing upon these matters before the Colorado
Industrial Commission, from which it appears that, in obedience to
the order of the General Union, its members theretofore employed in
Denver upon local building stopped work because petitioners'
product was being used. The local contractor was notified merely
that the men stopped work because the stone being used was
Page 274 U. S. 44
"unfair." The contractor personally had no trouble of any kind
with the union, and no other reason for the strike than that stated
above existed. B. F. James, a member and an acting officer of the
General Union, testified that the local union, in conducting its
strike against a local builder, had no choice in the matter; that
they had their orders from the General Union, with which they
complied; that there was no difference or feeling whatever between
the union and the local employer; that the fight was with the
Bedford stone producers, and they were trying to affect them
through the local employer.
"Q. And you people have no choice in the matter, you are just
complying with the orders from the International [General
"A. We have no choice whatever."
"Q. Probably, if it was left up to you people here, knowing this
employer as you do, why your organization here, local organization,
would not strike on this man?"
"A. I don't believe we would; no."
"Q. But you have got to follow the orders of your international
"A. Yes, sir."
The evidence makes plain that neither the General Union nor the
locals had any grievance against any of the buildings -- local
purchasers of the stone -- or any other local grievance, and that
the strikes were ordered and conducted for the sole purpose of
preventing the use, and, consequently, the sale and shipment in
interstate commerce, of petitioners' product in order, by
threatening the loss or serious curtailment of their interstate
market, to force petitioners to the alternative of coming to
undesired terms with the members of these unions. In 1924, the
president of the General Union said:
"The natural stone industry needs all the natural advantages it
can possibly get, as there are so many kinds
Page 274 U. S. 45
of substitutes to take the natural stone's place in the building
material market that it behooves the natural stone employers to do
their utmost to see that no handicap is in its way, and it is a
well known fact that, when any material is known to have labor
grievances, it retards that material in the building market, as the
building public do not want the stigma on their building that it
was built by 'unfair labor,' and they are also afraid of stoppage
of work and unnecessary disputes while their building is in course
of construction, and no one can blame them for that."
In the Colorado inquiry, the witness James further testified
that the strike order did not make any allowance for stone
theretofore ordered. "We were trying to affect the Bedford people
through the local man."
"Q. So the only person injured would be your own local man, who
is your employer, and your personal friend, is that it?"
"A. In a way. If it was finished that way, he would be the only
one hurt. We are not fighting on this Denver man. We are trying to
force these people through the other subcontractors all over the
"Q. You are trying to force the Bedford to employ members of
your union to do this work?"
"A. Yes, sir."
"Q. And, irrespective of who it hurts, that is the object?"
"A. That is the object. It is done from our headquarters."
"Q. Mr. Fernald, or anybody else, they have got to get out of
the road; that is the object?"
"A. We are trying to gain this point, irrespective of who it
From a consideration of all the evidence, it is apparent that
the enforcement of the general order to strike against petitioners'
product could have had no purpose other than
Page 274 U. S. 46
that of coercing or inducing the local employers to refrain from
purchasing such product. To accept the assertion made here to the
contrary would be to say that the order and the effort to enforce
it were vain and idle things, without any rational purpose
whatsoever. And, indeed, on the argument, in answer to a question
from the bench, counsel for respondents very frankly said that,
unless petitioners' interstate trade in the so-called unfair stone
were injuriously affected, the strikes would accomplish
That the means adopted to bring about the contemplated restraint
of commerce operated after physical transportation had ended is
immaterial. Loewe v.Lawlor, 208 U.
, 208 U. S. 301
Boyle v. United States,
259 F. 803, 805, 806. The product
against which the strikes were directed, it is true, had come to
rest in the respective localities to which it had been shipped, so
that it had ceased to be a subject of interstate commerce,
Industrial Assn. v. United States, 268 U. S.
, 268 U. S. 78
and interferences for a purely local object with its use, with no
intention, express or implied, to restrain interstate commerce, it
may be assumed, would not have been a violation of the Anti-Trust
p. 268 U. S. 77
United Mine Workers v. Coronado Co., 259 U.
, 259 U. S.
-411. But these interferences were not thus in
pursuit of a local motive -- they had for their primary aim
restraint of the interstate sale and shipment of the commodity.
Interstate commerce was the direct object of attack, "for the sake
of which the several specific acts and courses of conduct [were]
done and adopted." And the restraint of such commerce was the
necessary consequence of the acts and conduct and the immediate end
in view. Swift & Co. v. United States, 196 U.
, 196 U. S. 397
Prevention of the use of petitioners' product, which, without more,
might have been a purely local matter, therefore was only a part of
the conspiracy, which must be construed as an
Page 274 U. S. 47
entirety; and, when so regarded, the local transactions become a
part of the general plan and purpose to destroy or narrow
petitioners' interstate trade. Montague & Co. v.
Lowry, 193 U. S. 38
193 U. S. 45
In other words, strikes against the local use of the product were
simply the means adopted to effect the unlawful restraint. And it
is this result, not the means devised to secure it, which gives
character to the conspiracy.
Respondents' chief contention is that "their sole and only
purpose . . . was to unionize the cutters and carvers of stone at
the quarries." And it may be conceded that this was the ultimate
end in view. But how was that end to be effect? The evidence shows
indubitably that it was by an attack upon the use of the product in
other states to which it had been and was being shipped, with the
intent and purpose of bringing about the loss or serious reduction
of petitioners' interstate business, and thereby forcing compliance
with the demands of the unions. And, since these strikes were
directed against the use of petitioners' product in other states,
with the plain design of suppressing or narrowing the interstate
market, it is no answer to say that the ultimate object to be
accomplished was to bring about a change of conduct on the part of
petitioners in respect of the employment of union members in
Indiana. A restraint of interstate commerce cannot be justified by
the fact that the ultimate object of the participants was to secure
an ulterior benefit which they might have been at liberty to pursue
by means not involving such restraint. Anderson v. Shipowners'
Association, 272 U. S. 359
Duplex Co. v. Deering, 254 U. S. 443
254 U. S. 468
Ellis v. Inman, Poulsen & Co.,
131 F. 182, 186.
The case therefore is controlled not by United Mine Workers
v. Coronado Co., supra,
and United Leather Workers v.
Herkert, 265 U. S. 457
respondents contend, but by others presently to be discussed. In
the United Leather Workers
case, it appeared that the
Page 274 U. S. 48
were leveled only against production, and that the strikers (p.
265 U. S. 471
"did nothing which in any way directly interfered with the
interstate transportation or sales of the complainants' product,"
and the decision rests upon the ground that there was an entire
absence of evidence or circumstances to show that the defendants,
in their conspiracy to coerce complainants, were directing their
scheme against interstate commerce. United Mine Workers v.
Coronado Co., supra,
pp. 259 U. S.
-409, is to the same effect.
But, in the second United Mine Workers
268 U. S. 295
268 U. S. 310
this Court found sufficient evidence, even where the strike was
directed against production, of an intent to restrain interstate
commerce, and said:
"The mere reduction in the supply of an article to be shipped in
interstate commerce by the illegal or tortious prevention of its
manufacture or production is ordinarily an indirect and remote
obstruction to that commerce. But when the intent of those
unlawfully preventing the manufacture or production is shown to be
to restrain or control the supply entering and moving in interstate
commerce, or the price of it in interstate markets, their action is
a direct violation of the Anti-Trust Act."
In the present case, since the strikes were directed against the
use of the product in other states, with the immediate purpose and
necessary effect of restraining future sales and shipments in
interstate commerce, the determinative decisions to be applied are
those pointed out in the United Leather Workers
265 U. S.
"In Loewe v.Lawlor, 208 U. S. 274
, and in Duplex
Co. v. Deering, 254 U. S. 443
, members of labor
unions having a controversy with their employers sought to
embarrass the sales by their employers of the product of their
manufacture in other states by boycott and otherwise. They were
held guilty of a conspiracy against interstate commerce
Page 274 U. S. 49
because of their palpable intent to achieve their purpose by
direct obstruction of that commerce."
Respondents cite and rely upon Hopkins v. United
States, 171 U. S. 578
Anderson v. United States, 171 U.
. But of those cases we need say no more than that
they involved agreements which neither in purpose nor in necessary
result related to or had any direct effect upon interstate
With a few changes in respect of the product involved, dates,
names, and incidents, which would have no effect upon the
principles established, the opinion in Duplex Co. v. Deering,
might serve as an opinion in this case. The object of
the boycott there was precisely the same as it is here, and the
interferences with interstate commerce, while they were more
numerous and more drastic, did not differ in essential character
from the interferences here. A short statement of the case will
make this clear.
The complainant was a manufacturer of printing presses, and
conducted its business on the "open shop" policy. There had been an
unsuccessful strike to enforce the "closed shop," the eight-hour
day, and the union scale of wages. The strikers and the local
organizations to which they belonged were affiliated with an
international association having a membership of more than 60,000.
They entered into a combination to restrain complainant's
interstate trade by means of a "secondary boycott," in pursuance of
which complainant's customers in another state were warned not to
purchase, install, or operate its printing presses and threatened
with loss and sympathetic strikes should they do so. The strikers
threatened a trucking company with trouble if it should haul the
presses, incited employees of the trucking company and other men
employed by complainant's customers to strike in order to interfere
with the hauling and
Page 274 U. S. 50
installation of presses, notified repair shops not to do repair
work on the presses, threatened union men with loss of union cards
and the blacklist if they assisted in installing the presses, and
resorted to other methods of preventing the sale and delivery of
complainant's presses in interstate commerce.
This Court held that complainant's business of manufacturing
presses and disposing of them in commerce was a property right
entitled to protection against unlawful injury or interference,
that unrestrained access to the channels of interstate commerce was
necessary for the successful conduct of that business, and that the
combination to hinder and obstruct such commerce by the means
indicated was in violation of the Sherman Anti-Trust Act, as
amended by the Clayton Act. The combination was held to constitute
a "secondary boycott," defined as:
"a combination not merely to refrain from dealing with
complainant, or to advise or by peaceful means persuade
complainant's customers to refrain ('primary boycott'), but to
exercise coercive pressure upon such customers, actual or
prospective, in order to cause them to withhold or withdraw
patronage from complainant through fear of loss or damage to
themselves should they deal with it."
Whether either kind of boycott was lawful or unlawful at common
law was held to be immaterial, and the distinction between a
primary and a secondary boycott was only important to be considered
upon the question of the proper construction of the Clayton Act;
and, as to that, it was distinctly determined that the Clayton Act
was not intended to legalize the secondary boycott.
The court further held (pp. 254 U. S.
-468) that, by prior decisions of this Court, it had
been settled that a restraint of interstate commerce, produced by
peaceable persuasion, was as much within the prohibition of the
Anti-Trust Act as one accomplished by force or threats of force,
and that there was nothing in § 20 of the Clayton Act (p.
254 U. S.
Page 274 U. S. 51
) which modified that rule as applied to the
case under review or justified a resort to the secondary boycott.
And it was said (p. 254 U. S. 477
that the harmful consequences of the opposite construction, adopted
by the court below, were illustrated by that case, where an
ordinary controversy in a manufacturing establishment, concerning
terms and conditions of employment there, had been held a
sufficient occasion for imposing a general embargo upon the
products of the establishment and a nationwide blockade of the
channels of interstate commerce against them. The conclusion was
reached that complainant was entitled to an injunction under the
Sherman Act as amended by the Clayton Act, and that it was
unnecessary to consider whether a like result would follow under
the common law or local statutes. Finally, it is important to note
(p. 254 U. S. 478
the scope of the injunction which was authorized. Not only were the
association and its members to be restrained from interfering with
the sale, transportation, or delivery in interstate commerce of the
presses, but also from interfering with the
"carting, installation, use, operation, exhibition, display, or
repairing of any such press or presses, . . . 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. . .
Loewe v.Lawlor, supra,
also dealt with a secondary
boycott. The case arose before the enactment of the Clayton Act,
but, in view of what has just been said, that is not important. The
defendants, certain labor organizations and the members thereof,
undertook to compel complainants to unionize their factory. Being
unsuccessful, the members of the labor organizations withdrew from
Page 274 U. S. 52
service and endeavored to persuade others to do the same.
Defendants then declared a boycott against hats manufactured by
complainants found in the hands of their customers in other states,
with the purpose and intent to destroy or curtail complainants'
market in other states, and thereby coerce compliance with
defendants' demands. This was held (pp. 208 U. S.
-294) to be a combination falling
"within the class of restraints of trade aimed at compelling
third parties and strangers involuntarily not to engage in the
course of trade except on conditions that the combination
and an unlawful restraint of interstate commerce as defined by
the Anti-Trust Act. Referring to earlier cases, it was said (p.
208 U. S. 297
that the Anti-Trust Act had a broader application than the
prohibition of restraints of trade unlawful at common law, and that
its effect was to declare illegal
"every contract, combination or conspiracy, in whatever form, of
whatever nature, and whoever may be the parties to it, which
directly or necessarily operates in restraint of trade or commerce
among the several states."
In United States v. Brims, 272 U.
, a criminal case, this Court dealt with a
combination of manufacturers, contractors, and carpenters in
Chicago, having for its object the destruction of the competition
of nonunion mills in Wisconsin and elsewhere by the employment in
Chicago of union carpenters only, with the understanding that they
would refuse to install nonunion made millwork. There was evidence
tending to show that so-called outside competition was cut down,
and thereby interstate commerce directly and materially impeded,
and that this result was within the intention of the combination,
which, upon these facts, was held to be in violation of the
In Gompers v. Buck's Stove & Range Co.,
221 U. S. 418
221 U. S.
-439, this Court said that the restraining powers of
the courts extend to every device whereby commerce is illegally
Page 274 U. S. 53
restrained, and that:
"To hold that the restraint of trade under the Sherman
Anti-Trust Act, or on general principles of law, could be enjoined,
but that the means through which the restraint was accomplished
could not be enjoined would be to render the law impotent."
In cases arising outside the Anti-Trust Act, involving strikes
like those here under review against so-called unfair products,
there is a sharp conflict of opinion. On the one hand, it is said
that such a strike is justified on the ground of self-interest;
that the injury to the producer is inflicted not maliciously, but
in self-defense; that the refusal of the producer of deal with the
union and to observe its standards threatens the interest of all
its members and the members of the affiliated locals, and that a
strike against the unfair material is a mere recognition of this
unity of interest, and, in refusing to work on such material, the
union is only refusing to aid in its own destruction. The opposite
view is illustrated by such cases as Toledo, etc., Ry.
54 F. 730; Thomas v. Cincinnati, etc. Ry. Co.,
62 F. 803, 817 et seq.; Moores v. Bricklayers' Union,
Wkly.Cin.Law Bul. 48, affirmed by the Supreme Court of Ohio without
opinion, 51 Ohio St. 605; Burnham v. Dowd,
217 Mass. 351;
Purvis v. United Brotherhood,
214 Pa. 348; Booth &
Bro. v. Burgess,
72 N.J.Eq. 181, 188, 196; Piano &
Organ Workers v. P. & O. Supply Co.,
124 Ill.App. 353.
But with this conflict we have no concern in the present case.
The question which it involves was presented and considered in the
Duplex Co. case, supra,
as the prevailing and the
dissenting opinions show, and there it was plainly held that the
point had no bearing upon the enforcement of the Anti-Trust Act,
and that, since complainant had a clear right to an injunction
under that act as amended by the Clayton Act, it was "unnecessary
to consider whether a like result would follow under the common law
or local statutes."
Page 274 U. S. 54
Whatever may be said as to the motives of the respondents or
their general right to combine for the purpose of redressing
alleged grievances of their fellow craftsmen or of protecting
themselves or their organizations, the present combination
deliberately adopted a course of conduct which directly and
substantially curtailed, or threatened thus to curtail, the natural
flow in interstate commerce of a very large proportion of the
building limestone production of the entire country, to the gravely
probable disadvantage of producers, purchasers, and the public, and
it must be held to be a combination in undue and unreasonable
restraint of such commerce within the meaning of the Anti-Trust Act
as interpreted by this Court. An act which lawfully might be done
by one may, when done by many acting in concert, take on the form
of a conspiracy and become a public wrong, and may be prohibited if
the result be hurtful to the public or to individuals against whom
such concerted action is directed. Grenada Lumber Co. v.
Mississippi, 217 U. S. 433
217 U. S. 440
and any suggestion that such concerted action here may be justified
as a necessary defensive measure is completely answered by the
words of this Court in Eastern States Lumber Assn. v. United
States, 234 U. S. 600
234 U. S. 613
"Congress, with the right to control the field of interstate
commerce, has so legislated as to prevent resort to practices which
unduly restrain competition or unduly obstruct the free flow of
such commerce, and private choice of means must yield to the
national authority thus exerted."
The record does not disclose whether petitioners, at the time of
bringing suit, had suffered actual injury, but that is not
material. An intent to restrain interstate commerce being shown, it
is enough to justify equitable interposition by injunction if there
be a dangerous probability that such injury will happen, and this
clearly appears. The Anti-Trust Act "directs itself against that
dangerous probability as well as against the completed result."
Page 274 U. S. 55
& Co. v. United States, supra,
p. 196 U. S. 396
Vicksburg Waterworks Co. v. Vicksburg, 185 U. S.
, 185 U. S. 82
Thomson Machine Co. v. Brown,
89 N.J.Eq. 326, 328.
From the foregoing review, it is manifest that the acts and
conduct of respondents fall within the terms of the Anti-Trust Act,
and petitioners are entitled to relief by injunction under § 16 of
the Clayton Act, c. 323, 38 Stat. 730, 737, by which they are
authorized to sue for such relief "against threatened loss or
damage by a violation of the antitrust laws," etc. The strikes,
ordered and carried out with the sole object of preventing the use
and installation of petitioners' product in other states,
necessarily threatened to destroy or narrow petitioners' interstate
trade by taking from them their customers. That the organizations,
in general purpose and in and of themselves, were lawful, and that
the ultimate result aimed at may not have been illegal in itself,
are beside the point. Where the means adopted are unlawful, the
innocent general character of the organizations adopting them or
the lawfulness of the ultimate end sought to be attained, cannot
serve as a justification.
MR. JUSTICE SANFORD, concurring.
I concur in this result upon the controlling authority of
Duplex Co. v. Deering, 254 U. S. 443
254 U. S. 478
which, as applied to the ultimate question in this case, I am
unable to distinguish.
The separate opinion of MR. JUSTICE STONE.
As an original proposition, I should have doubted whether the
Sherman Act prohibited a labor union from peaceably refusing to
work upon material produced by nonunion labor or by a rival union,
even though interstate
Page 274 U. S. 56
commerce were affected. In the light of the policy adopted by
Congress in the Clayton Act with respect to organized labor, and in
the light of Standard Oil Co. v. United States,
221 U. S. 1
United States v. American Tobacco Co., 221 U. S.
06, 221 U. S.
-180, I should not have thought that such action as
is now complained of was to be regarded as an unreasonable, and
therefore prohibited restraint of trade. But, in Duplex
Printing Press Co. v. Deering, 254 U.
, these views were rejected by a majority of the
Court and a decree was authorized restraining in precise terms any
agreement not to work or refusal to work, such as is involved here.
Whatever additional facts there may have been in that case, the
decree enjoined the defendants from using
"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. . .
P. 254 U. S.
These views, which I should not have hesitated to apply here,
have now been rejected again, largely on the authority of the
case. For that reason alone, I concur with the
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
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.
Page 274 U. S. 57
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
Page 274 U. S. 58
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
221 U. S. 56
United States v. American Tobacco Co., 221 U. S.
06, 221 U. S.
-180; Chicago Board of Trade v. United
States, 246 U. S. 231
246 U. S. 238
United States v. Trenton Potteries Co., 273 U.
. Compare United States v. Terminal
Assn., 224 U. S. 383
United States v. Reading Co., 226 U.
, 226 U. S. 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
254 U. S. 466
Tested by these principles, the propriety of the unions' conduct
can hardly be doubted by one who believes in the organization of
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
Page 274 U. S. 59
enemies. They were seeking to destroy it. And the danger was
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
Page 274 U. S. 60
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
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
Page 274 U. S. 61
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
Pp. 254 U. S.
The character of the acts held in Duplex Printing Press Co.
to constitute unreasonable restraint is further
Page 274 U. S. 62
shown by the scope of the injunction there prescribed (pp.
254 U. S.
"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
case does not lie only in the character of the acts
complained of. It lies also in the occasion and
Page 274 U. S. 63
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
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. 254 U. S.
In Loewe v.Lawlor, 208 U. S. 274
Gompers v. Buck's Stove Co., 221 U.
, and Lawlor v. Loewe, 235 U.
, 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
Page 274 U. S. 64
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.
, 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
In United Mine Workers v. Coronado Co., 259 U.
, United Leather Workers v. Herkert,
265 U. S. 457
Industrial Association v. United States, 268 U. S.
, as in Hopkins v. United States,
171 U. S. 578
Anderson v. United States, 171 U.
, Montague & Co. v. Lowry,
193 U. S. 38
Swift & Co. v. United States, 196 U.
, the questions put in issue were not the
reasonableness of the restraint, but whether the restraint was of
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
Page 274 U. S. 65
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.
, 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
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.
* The contrary view was unsuccessfully contended for by Mr.
Justice Harlan, dissenting, in Standard Oil Co. v. United
States, 221 U. S. 1
221 U. S. 85
221 U. S.