1. In determining whether trade union conduct violates the
Sherman Act, that Act should be read with § 20 of the Clayton Act
and with the Norris-LaGuardia Act. P. 312 U. S.
2. Labor union activities enumerated in §20 of the Clayton Act,
which that section declares shall not be "considered or held to be
violations of any law of the United States," are not punishable as
criminal under the Sherman Act. P. 312 U. S.
3. Section 20 of the Clayton Act does not differentiate between
trade union conduct directed against an employer because of a
controversy arising in the relation between employer and employee,
as such, and conduct similarly directed but arising from a struggle
between two unions seeking the favor of the same employer. P.
312 U. S.
4. In a case involving interstate commerce, union carpenters
refused to work for a brewing company by which they were employed,
or on construction work being done for it and for its adjoining
tenant; they attempted to persuade members of other unions
similarly to refuse to work; they picketed the brewer's premises,
displaying signs "Unfair to Organized Labor"; and they recommended
to the union members and their friends not to buy or use the
(1) That these actions were protected from prosecution under the
Sherman Act by § 20 of the Clayton Act, construed in the light of
Congress's definition of a "labor dispute" in the Norris-LaGuardia
Act. P. 312 U. S.
(2) In view of the broad definition of "labor dispute" in the
Norris-LaGuardia Act, § 20 of the Clayton Act gives protection to
the conduct it describes although directed in part against
outsiders to the labor dispute. Duplex Printing Press Co. v.
Deering, 254 U. S. 443
inapplicable. P. 312 U. S.
32 F. Supp.
APPEAL under the Criminal Appeals Act from a judgment quashing
an indictment under the Sherman Act.
Page 312 U. S. 227
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Whether the use of conventional, peaceful activities by a union
in controversy with a rival union over certain jobs is a violation
of the Sherman Law, Act of July 2, 1890, 26 Stat. 209, as amended,
15 U.S.C. § 1, is the question. It is sharply presented in this
case because it arises in a criminal prosecution. Concededly, an
injunction either at the suit of the Government or of the employer
could not issue.
Summarizing the long indictment, these are the facts.
Anheuser-Busch, Inc., operating a large plant in St. Louis,
contracted with Borsari Tank Corporation for the erection of an
additional facility. The Gaylord Container Corporation, a lessee of
adjacent property from Anheuser-Busch, made a similar contract for
a new building with the Stocker Company. Anheuser-Busch obtained
Page 312 U. S. 228
materials for its brewing and other operations and sold its
finished products largely through interstate shipments. The Gaylord
Corporation was equally dependent on interstate commerce for
marketing its goods, as were the construction companies for their
building materials. Among the employees of Anheuser-Busch were
members of the United Brotherhood of Carpenters and Joiners of
America and of the International Association of Machinists. The
conflicting claims of these two organizations, affiliated with the
American Federation of Labor, in regard to the erection and
dismantling of machinery had long been a source of controversy
between them. Anheuser-Busch had had agreements with both
organizations whereby the Machinists were given the disputed jobs
and the Carpenters agreed to submit all disputes to arbitration.
But, in 1939, the president of the Carpenters, their general
representative, and two officials of the Carpenters' local
organization, the four men under indictment, stood on the claims of
the Carpenters for the jobs. Rejection by the employer of the
Carpenters' demand and the refusal of the latter to submit to
arbitration were followed by a strike of the Carpenters, called by
the defendants against Anheuser-Busch and the construction
companies, a picketing of Anheuser-Busch and its tenant, and a
request through circular letters and the official publication of
the Carpenters that union members and their friends refrain from
buying Anheuser-Busch beer.
These activities on behalf of the Carpenters formed the charge
of the indictment as a criminal combination and conspiracy in
violation of the Sherman Law. Demurrers denying that what was
charged constituted a violation of the laws of the United States
were sustained, 32 F. Supp.
, and the case came here under the Criminal Appeals Act. Act
of March 2, 1907, 34 Stat. 1246, 18 U.S.C. § 682; Judicial Code §
238, 28 U.S.C. § 345.
Page 312 U. S. 229
In order to determine whether an indictment charges an offense
against the United States, designation by the pleader of the
statute under which he purported to lay the charge is immaterial.
He may have conceived the charge under one statute which would not
sustain the indictment, but it may nevertheless come within the
terms of another statute. See Williams v. United States,
168 U. S. 382
the other hand, an indictment may validly satisfy the statute under
which the pleader proceeded, but other statutes not referred to by
him may draw the sting of criminality from the allegations. Here,
we must consider not merely the Sherman Law, but the related
enactments which entered into the decision of the district
Section 1 of the Sherman Law, on which the indictment rested, is
"Every contract, combination in the form of trust or otherwise,
or conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is hereby declared to be
The controversies engendered by its application to trade union
activities and the efforts to secure legislative relief from its
consequences are familiar history. The Clayton Act of 1914 was the
result. Act of October 15, 1914, 38 Stat. 730.
"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
Duplex Printing Press Co. v. Deering, 254 U.
, 254 U. S. 484
Section 20 of that Act, which is set out in the margin in full,
Page 312 U. S. 230
from the general interdict of the Sherman Law specifically
enumerated practices of labor unions by prohibiting injunctions
against them -- since the use of the injunction had been the major
source of dissatisfaction -- and also relieved such practices of
all illegal taint by the catch-all provision, "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 Clayton Act gave
rise to new litigation and to renewed controversy in and out of
Congress regarding the status of trade unions. By the generality of
its terms, the Sherman Law had necessarily compelled the courts to
work out its meaning from case to case. It was widely believed that
into the Clayton Act courts read the very beliefs which that Act
was designed to remove. Specifically the courts restricted the
scope of § 20 to trade union activities directed against an
employer by his own employees. Duplex Printing Press Co. v.
Page 312 U. S. 231
Such a view, it was urged both by powerful
judicial dissents and informed lay opinion, misconceived the area
of economic conflict that had best be left to economic forces and
the pressure of public opinion, and not subjected to the judgment
of courts. Ibid.,
254 U. S. 485
-486. Agitation again led to legislation
and in 1932 Congress wrote the Norris-LaGuardia Act. Act of March
23, 1932, 47 Stat. 70, 29 U.S.C. §§ 101-115.
The Norris-LaGuardia Act removed the fetters upon trade union
activities, which, according to judicial construction, § 20 of the
Clayton Act had left untouched, by still further narrowing the
circumstances under which the federal courts could grant
injunctions in labor disputes. More especially, the Act explicitly
formulated the "public policy of the United States" in regard to
the industrial conflict, [Footnote
] and by its light established that the allowable area of
union activity was not to be restricted, as it had been in the
case, to an immediate employer-employee relation.
Therefore, whether trade union conduct constitutes a violation of
the Sherman Law is to be determined only by reading the Sherman Law
and § 20 of the Clayton Act and the Norris-LaGuardia Act as a
harmonizing text of outlawry of labor conduct.
Page 312 U. S. 232
Were then the acts charged against the defendants prohibited or
permitted by these three interlacing statutes? If the facts laid in
the indictment come within the conduct enumerated in § 20 of the
Clayton Act, they do not constitute a crime within the general
terms of the Sherman Law because of the explicit command of that
section that such conduct shall not be "considered or held to be
violations of any law of the United States". So long as a union
acts in its self-interest and does not combine with nonlabor
groups, [Footnote 3
] the licit
and the illicit under § 20 are not to be distinguished by any
judgment regarding the wisdom or unwisdom, the rightness or
wrongness, the selfishness or unselfishness of the end of which the
particular union activities are the means. There is nothing
remotely within the terms of § 20 that differentiates between trade
union conduct directed against an employer because of a controversy
arising in the relation between employer and employee, as such, and
conduct similarly directed but ultimately due to an internecine
struggle between two unions seeking the favor of the same employer.
Such strife between competing unions has been an obdurate conflict
in the evolution of so-called craft unionism, and has undoubtedly
been one of the potent forces in the modern development of
industrial unions. These conflicts have intensified industrial
tension, but there is not the slightest warrant for saying that
Congress has made § 20 inapplicable to trade union conduct
resulting from them.
In so far as the Clayton Act is concerned, we must therefore
dispose of this case as though we had before us precisely the same
conduct on the part of the defendants in pressing claims against
Anheuser-Busch for increased
Page 312 U. S. 233
wages, or shorter hours, or other elements of what are called
working conditions. The fact that what was done was done in a
competition for jobs against the Machinists, rather than against,
let us say, a company union is a differentiation which Congress has
not put into the federal legislation, and which therefore we cannot
write into it.
It is at once apparent that the acts with which the defendants
are charged are the kind of acts protected by § 20 of the Clayton
Act. The refusal of the Carpenters to work for Anheuser-Busch or on
construction work being done for it and its adjoining tenant, and
the peaceful attempt to get members of other unions similarly to
refuse to work, are plainly within the free scope accorded to
workers by § 20 for "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". The picketing of
Anheuser-Busch premises with signs to indicate that Anheuser-Busch
was unfair to organized labor, a familiar practice in these
situations, comes within the language "attending at any place where
any such person or persons may lawfully be, for the purpose of
peacefully obtaining or communicating information, or from
peacefully persuading any person to work or to abstain from
working". Finally, the recommendation to union members and their
friends not to buy or use the product of Anheuser-Busch is
explicitly covered by "ceasing to patronize . . . any party to such
dispute, or from recommending, advising, or persuading others by
peaceful and lawful means so to do."
Clearly, then, the facts here charged constitute lawful conduct
under the Clayton Act unless the defendants cannot invoke that Act
because outsiders to the immediate dispute also shared in the
conduct. But we need not determine whether the conduct is legal
within the restrictions which Duplex Printing Press Co. v.
gave to the immunities
Page 312 U. S. 234
of § 20 of the Clayton Act. Congress in the Norris-LaGuardia Act
has expressed the public policy of the United States and defined
its conception of a "labor dispute" in terms that no longer leave
room for doubt. Milk Wagon Drivers' Union v. Lake Valley Farm
Products, Inc., 311 U. S. 91
was done, as we recently said, in order to "obviate the results of
the judicial construction" theretofore given the Clayton Act.
New Negro Alliance v. Sanitary Grocery Co., 303 U.
, 303 U. S. 562
see Apex Hosiery Co. v. Leader, 310 U.
, 310 U. S. 507
Such a dispute, § 13(c), provides,
"includes any controversy concerning terms or conditions of
employment, or concerning the association or representation of
persons in negotiating, fixing, maintaining, changing, or seeking
to arrange terms or conditions of employment, regardless of whether
or not the disputants stand in the proximate relation of employer
and employee. [Footnote 4
And under § 13(b) a person is "participating or interested in a
labor dispute" if he
"is engaged in the same industry, trade, craft, or occupation in
which such dispute occurs, or has a direct or indirect interest
therein, or is a member, officer, or agent of any association
composed in whole or in part of employers or employees engaged in
such industry, trade, craft, or occupation."
To be sure, Congress expressed this national policy and
determined the bounds of a labor dispute in an act explicitly
dealing with the further withdrawal of injunctions in labor
controversies. But to argue, as it was urged before us, that the
case still governs for purposes of a criminal
prosecution is to say that that which, on the equity side of the
court, is allowable conduct may in a criminal proceeding become the
Page 312 U. S. 235
prison. It would be strange indeed that, although neither the
Government nor Anheuser-Busch could have sought an injunction
against the acts here challenged, the elaborate efforts to permit
such conduct failed to prevent criminal liability punishable with
imprisonment and heavy fines. That is not the way to read the will
of Congress, particularly when expressed by a statute which, as we
have already indicated, is practically and historically one of a
series of enactments touching one of the most sensitive national
problems. Such legislation must not be read in a spirit of
mutilating narrowness. On matters far less vital and far less
interrelated, we have had occasion to point out the importance of
giving "hospitable scope" to Congressional purpose even when
meticulous words are lacking. Keifer & Keifer v.
Reconstruction Finance Corp., 306 U.
, 306 U. S. 391
and authorities there cited. The appropriate way to read
legislation in a situation like the one before us was indicated by
Mr. Justice Holmes on circuit:
"A statute may indicate or require as its justification a change
in the policy of the law, although it expresses that change only in
the specific cases most likely to occur to the mind. The
Legislature has the power to decide what the policy of the law
shall be, and if it has intimated its will, however indirectly,
that will should be recognized and obeyed. The major premise of the
conclusion expressed in a statute, the change of policy that
induces the enactment, may not be set out in terms, but it is not
an adequate discharge of duty for courts to say: we see what you
are driving at, but you have not said it, and therefore we shall go
on as before."
Johnson v. United States,
163 F. 30, 32.
The relation of the Norris-LaGuardia Act to the Clayton Act is
not that of a tightly drawn amendment to a technically phrased tax
provision. The underlying aim
Page 312 U. S. 236
of the Norris-LaGuardia Act was to restore the broad purpose
which Congress thought it had formulated in the Clayton Act but
which was frustrated, so Congress believed, by unduly restrictive
judicial construction. This was authoritatively stated by the House
Committee on the Judiciary.
"The purpose of the bill is to protect the rights of labor in
the same manner the Congress intended when it enacted the Clayton
Act, October 15, 1914 (38 Stat.L., 738), which act, by reason of
its construction and application by the Federal courts, is
ineffectual to accomplish the congressional intent."
H.Rep. No. 669, 72d Congress, 1st Session, p. 3. The
Norris-LaGuardia Act was a disapproval of Duplex Printing Press
Co. v. Deering, supra,
and Bedford Cut Stone Co. v.
Journeyman Stone Cutters' Assn., 274 U. S.
, as the authoritative interpretation of § 20 of the
Clayton Act, for Congress now placed its own meaning upon that
section. The Norris-LaGuardia Act reasserted the original purpose
of the Clayton Act by infusing into it the immunized trade union
activities as redefined by the later Act. In this light, § 20
removes all such allowable conduct from the taint of being
"violations of any law of the United States", including the Sherman
There is no profit in discussing those cases under the Clayton
Act which were decided before the courts were furnished the light
shed by the Norris-LaGuardia Act on the nature of the industrial
conflict. And since the facts in the indictment are made lawful by
the Clayton Act insofar as "any law of the United States" is
concerned, it would be idle to consider the Sherman Law apart from
the Clayton Act as interpreted by Congress. Cf. Apex Hosiery
Co. v. Leader, 310 U. S. 469
was precisely in order to minimize the difficulties to which the
general language of the Sherman Law in its application to workers
had given rise that Congress cut through all the tangled verbalisms
and enumerated concretely the types
Page 312 U. S. 237
of activities which had become familiar incidents of union
MR. JUSTICE MURPHY took no part in the disposition of this
38 Stat. 738, 29 U.S.C. § 52:
"No restraining order or injunction shall be granted by any
court of the United States, or a judge or the judges thereof, in
any case 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, unless
necessary to prevent irreparable injury to property, or to a
property right, of the party making the application, for which
injury there is no adequate remedy at law, and such property or
property right must be described with particularity in the
application, which must be in writing and sworn to by the applicant
or by his agent or attorney."
"And no such restraining order or injunction shall prohibit any
person or persons, whether singly or in concert, from terminating
any relation of employment, or from ceasing to perform any work or
labor, or from recommending, advising, or persuading others by
peaceful means so to do; or from attending at any place where any
such person or persons may lawfully be, for the purpose of
peacefully obtaining or communicating information, or from
peacefully persuading any person to work or to abstain from
working; or from ceasing to patronize or to employ any party to
such dispute, or from recommending, advising, or persuading others
by peaceful and lawful means so to do; or from paying or giving to,
or withholding from, any person engaged in such dispute, any strike
benefits or other moneys or things of value; or from peaceably
assembling in a lawful manner, and for lawful purposes; or from
doing any act or thing which might lawfully be done in the absence
of such dispute by any party thereto; nor shall any of the acts
specified in this paragraph be considered or held to be violations
of any law of the United States."
"Whereas under prevailing economic conditions, developed with
the aid of governmental authority for owners of property to
organize in the corporate and other forms of ownership association,
the individual unorganized worker is commonly helpless to exercise
actual liberty of contract and to protect his freedom of labor, and
thereby to obtain acceptable terms and conditions of employment,
wherefore, though he should be free to decline to associate with
his fellows. It is necessary that he have full freedom of
association, self-organization, and designation of representatives
of his own choosing, to negotiate the terms and conditions of his
employment, and that he shall be free from the interference,
restraint, or coercion of employers of labor, or their agents, in
the designation of such representatives or in self-organization or
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection."
Cf. United States v. Brims, 272 U.
, involving a conspiracy of mill work
manufacturers, building contractors and union carpenters.
Three years later, in the National Labor Relations Act, Congress
gave similar breadth to the definition of a labor dispute. Act of
July 5, 1935, 49 Stat. 448, 450, 29 U.S.C. § 152(9).
MR. JUSTICE STONE, concurring.
As I think it clear that the indictment fails to charge an
offense under the Sherman Act, as it has been interpreted and
applied by this Court, I find no occasion to consider the impact of
the Norris-LaGuardia Act on the definition of participants in a
labor dispute in the Clayton Act, as construed by this Court in
Duplex Printing Press Co. v. Deering, 254 U.
-- an application of the Norris-LaGuardia Act
which is not free from doubt, and which some of my brethren sharply
The indictment is for a conspiracy to promote by peaceful means
a local "jurisdictional" strike in St. Louis, Missouri. Its aim is
to determine whether the United Brotherhood of Carpenters or the
International Association of Machinists, both labor organizations
affiliated with the American Federation of Labor, shall be
permitted to install certain machinery on the premises of
Anheuser-Busch, Inc. in St. Louis. It appears that Anheuser-Busch
brews beer and manufactures other products which it ships to points
outside the state. It also uses supplies and building materials
which are shipped to it from points outside the state. Borsari Tank
Corporation is about to construct for Anheuser-Busch upon its
premises a building for its use in brewing beer. L. O. Stocker
Company has contracted and intends to construct an office building
upon land of Anheuser-Busch adjacent to its brewery and leased by
it to the Gaylord Container Corporation, a manufacturer of paper
and cardboard containers which it ships in interstate commerce. It
Page 312 U. S. 238
that both Borsari and Stocker will require and use in the
construction of the buildings materials to be shipped from points
outside the state to the building sites on or adjacent to the
The indictment charges that, pursuant to the conspiracy to
enforce the jurisdictional demands, appellees, who are officers or
representatives of the Brotherhood, called a strike of its members,
some seventy-eight in number, in the employ of Anheuser-Busch,
attempted to call sympathy strikes by members of other unions in
its employ and caused the premises of Anheuser-Busch and the
adjacent premises leased to Gaylord to be picketed by persons
"bearing umbrellas and charging Anheuser-Busch, Inc., to be
unfair to organized labor, with the intent to shut down the brewery
and manufacturing plant of Anheuser-Busch, Inc., to hinder and
prevent the passage of persons and property to and from said
premises, and thus to restrain and stop the commerce of
in the beer and other products manufactured by it, and in the
supplies and materials procured by it extrastate, and "to restrain
the commerce" of Gaylord. It is alleged that, pursuant to the
"refused to permit members of the United Brotherhood . . . to be
employed and prevented such members from being employed by Borsari
. . . with the intent and effect of preventing construction of the
building about to be built by Borsari . . . , and thus of
restraining the commerce of Anheuser-Busch in beer . . . , and also
with the knowledge and willful disregard of the consequent
restraint and stoppage of commerce in the materials intended to be
used by Borsari."
Like allegations are made with respect to Stocker, with the
added charge that the acts alleged were with intent to prevent
performance of Stocker's contract with Gaylord "with willful
disregard of the consequent restraint of the commerce of
Page 312 U. S. 239
There is the further allegation that, pursuant to the
conspiracy, defendants and their co-conspirators have instigated
and brought about a "boycott of beer brewed by Anheuser-Busch . . .
and of dealers in said beer throughout the United States", by
distributing to members of labor organizations and to the public at
large in many states and by published notices circulated
"denouncing Anheuser-Busch, Inc., as unfair to organized labor
and calling upon all union members and friends of organized labor
to refrain from purchasing and drinking said beer."
We are concerned with the alleged activities of defendants,
actual or intended, only so far as they have an effect on commerce
prohibited by the Sherman Act as it has been amended or restricted
in its operation by the Clayton Act. The legality of the alleged
restraint under the Sherman Act is not affected by characterizing
the strike, as this indictment does, as "jurisdictional," or as not
within the "legitimate object of a labor union." The restraints
charged are of two types: one is that resulting to the commerce of
Anheuser-Busch, Borsari, Stocker and Gaylord from the peaceful
picketing of the Anheuser-Busch premises, a part of which is leased
to Gaylord, and the refusal of the Brotherhood to permit its
members to work, and its prevention of its members from working (by
what means other than picketing does not appear) for Borsari and
Stocker. The other is that resulting from the requests addressed to
the public to refrain from purchasing Anheuser-Busch beer.
It is plain that the first type of restraint is only that which
is incidental to the conduct of a local strike and which results
from closing the plant of a manufacturer or builder who ships his
product in interstate commerce, or who procures his supplies from
points outside the state. Such restraints, incident to such a
strike, upon the interstate transportation of the products or
Page 312 U. S. 240
been repeatedly held by this Court, without a dissenting voice,
not to be within the reach of the Sherman Anti-Trust Act. There is
here no allegation in the case of any of the employers of any
interference, actual or intended, by strikers with goods moving or
about to be shipped in interstate commerce such as was last term so
sharply presented and held not to be a violation of the Sherman Act
in Apex Hosiery Co. v. Leader, 310 U.
With respect to Borsari and Stocker, the indictment does no more
than charge a local strike to enforce the jurisdictional demands
upon Anheuser-Busch by the refusal of union members to work in the
construction of buildings for Anheuser-Busch or upon its land, the
work upon which, so far as appears, has not even begun. The
restraint alleged is only that resulting from the "disregard" by
the strikers of the stoppage of the movement interstate of the
building materials and the manufactured products of Gaylord
consequent upon their refusal to construct the buildings. Precisely
as in Levering & Garrigues Co. v. Morrin, 289 U.
, where a local building strike with like
consequences was held not to violate the Sherman law, there is
wanting here any fact to show that the conspiracy was directed at
the use of any particular building material in the states of origin
and destination or its transportation between them "with the plain
design of suppressing or narrowing the interstate market", each of
which were thought to be crucial in Bedford Cut Stone Co. v.
Stone Cutters' Ass'n, 274 U. S. 37
274 U.S. 46
, 274 U.S. 47
. See Apex Hosiery Co.
v. Leader, supra, 310 U. S.
As to the commerce of Anheuser-Busch and Gaylord, the
indictment, at most, shows a conspiracy to picket peacefully their
premises and publicly to charge the former with being unfair to
organized labor, all with the intent to shut down the plant of
Page 312 U. S. 241
and to hinder and prevent the passage of persons and property to
and from the premises, and thus to restrain the commerce of
Anheuser-Busch and Gaylord. There is also the allegation, already
noted, that the refusal to work for Stocker will restrain the
commerce of Gaylord, presumably because he will manufacture and
ship less of his product if the proposed building is not
It is a novel proposition that allegations of local peaceful
picketing of a manufacturing plant to enforce union demands
concerning terms of employment accompanied by announcements that
the employer is unfair to organized labor is a violation of the
Sherman Act, whatever effect on interstate commerce may be intended
to follow from the acts done. They, like the allegations here, show
only such effect upon interstate commerce as may be inferred from
the acts alleged, and, in any event, such restraint as there may be
is not shown to be more than that which is incidental to every
strike causing a shutdown of a manufacturing plant whose product
moves in interstate commerce or stopping building operations where
the builder is using materials shipped to him in interstate
commerce. If the counts of the indictment which we are now
considering make out an offense, then every local strike aimed at
closing a shop whose products or supplies move in interstate
commerce is, without more, a violation of the Sherman Act. They
present a weaker case than those unanimously held by this Court not
to involve violation of the Sherman Act in United Mine Workers
v. Coronado Coal Co. (First Coronado Case), 259 U.
; United Leather Workers v. Herkert &
Meisel Co., 265 U. S. 457
Levering & Garrigues Co. v. Morrin, supra, and see Coronado
Coal Co. v. United Mine Workers (Second Coronado Case),
268 U. S. 295
268 U. S. 310
In any case, there is no allegation in the indictment that the
restraint did or could operate to suppress competition
Page 312 U. S. 242
in the market of any product and so dismissal of these counts is
required by our decision in Apex Hosiery Co. v. Leader,
The second and only other type of restraint upon interstate
commerce charged is the so-called "boycott" alleged to be by the
publication of notices charging Anheuser-Busch with being unfair to
labor and requesting members of the Union and the public not to
purchase or use the Anheuser-Busch product. Were it necessary to a
decision, I should have thought that, since the strike against
Anheuser-Busch was by its employees, and there is no intimation
that there is any strike against the distributors of the beer, that
the strike was a labor dispute between employer and employees
within the labor provisions of the Clayton Act as they were
construed in Duplex Printing Press Co. v. Deering, supra.
In that case, § 20 of the Act, as the opinion of the Court points
out, makes lawful the action of any person *
patronize . . . any party to such dispute" or "recommending,
advising or persuading others by peaceful and lawful means so to
Be that as it may, it is a sufficient answer to the asserted
violation of the Sherman Act by the publication of such notices and
requests to point out that the strike was by employees of
Anheuser-Busch; that there was no boycott of or strike against any
purchaser of Anheuser-Busch beer by any concerted action or refusal
to patronize him by the purchase of beer or other products supplied
by him such as was condemned in Loewe v. Lawlor,
208 U. S. 274
308 U. S.
-307; cf. Apex Hosiery Co. v. Leader,
Page 312 U. S. 243
supra, 310 U. S. 505
and, finally, that the publication, unaccompanied by violence, of a
notice that the employer is unfair to organized labor and
requesting the public not to patronize him is an exercise of the
right of free speech guaranteed by the First Amendment which cannot
be made unlawful by act of Congress. See Thornhill v.
Alabama, 310 U. S. 88
I can only conclude that, upon principles hitherto recognized
and established by the decisions of this Court, the indictment
charges no violation of the Sherman Act.
* Appellees, being national and local officers of the
Brotherhood and representing the employees in the labor dispute
with their employer, are "proximately and substantially concerned"
as parties to an actual dispute and are, therefore, entitled to the
benefits of the Clayton Act. See Duplex Printing Press Co. v.
Deering, supra, 254 U. S.
MR. JUSTICE ROBERTS, dissenting.
I am of opinion that the judgment should be reversed.
The indictment adequately charges a conspiracy to restrain trade
and commerce with the specific purpose of preventing Anheuser-Busch
from receiving in interstate commerce commodities and materials
intended for use in its plant; of preventing the Borsari
Corporation from obtaining materials in interstate commerce for use
in performing a contract for Anheuser-Busch, and of preventing the
Stocker Company from receiving materials in like manner for the
construction of a building for the Gaylord Corporation. The
indictment further charges that the conspiracy was to restrain
interstate commerce flowing from Missouri into other states of
products of Anheuser-Busch and generally, to restrain the
interstate trade and commerce of the three corporations named.
Without detailing the allegations of the indictment, it is
sufficient to say that they undeniably charge a secondary boycott,
affecting interstate commerce.
This court, and many state tribunals, over a long period of
years, have held such a secondary boycott illegal. In 1908, this
court held such a secondary boycott, instigated to enforce the
demands of a labor union against
Page 312 U. S. 244
an employer, was a violation of the Sherman Act, and could be
restrained at the suit of the employer. [Footnote 2/2
] It is matter of history that labor unions
insisted they were not within the purview of the Sherman Act, but
this court held to the contrary. As a result of continual
agitation, the Clayton Act was adopted. That Act, as amended,
became effective October 15, 1914. [Footnote 2/3
] Subsequently, suits in equity were brought
to restrain secondary boycotts similar to those involved in earlier
cases. The contention was made that the Clayton Act exempted labor
organizations from such suits. That contention was not sustained.
] Upon the fullest
consideration, this court reached the conclusion that the
provisions of Section 20 of the Clayton Act governed not the
substantive rights of persons and organizations, but merely
regulated the practice according to which, and the conditions under
which, equitable relief might be granted in suits of this
character. Section 6 has no bearing on the offense charged in this
This court also unanimously held that a conspiracy such as is
charged in the instant case renders the conspirators liable to
criminal prosecution by the United States under the antitrust acts.
It is common knowledge that the agitation for complete exemption
of labor unions from the provisions of the antitrust laws
persisted. Instead of granting the complete exemption desired,
Congress adopted, March 23, 1932, the Norris-LaGuardia Act.
] The title and the
contents of that Act, as well as its legislative history, [Footnote 2/7
Page 312 U. S. 245
beyond question that its purpose was to define and to limit the
jurisdiction of federal courts sitting in equity. The Act broadens
the scope of labor disputes as theretofore understood -- that is,
disputes between an employer and his employes with respect to
wages, hours, and working conditions -- and provides that before a
federal court can enter an injunction to restrain illegal acts
certain preliminary findings, based on evidence, must be made. The
Act further deprives the courts of the right to issue an injunction
against the doing of certain acts by labor organizations or their
members. It is unnecessary to detail the acts as to which the
jurisdiction of a court of equity is abolished. It is sufficient to
say what a reading of the Act makes letter clear -- that the
jurisdiction of actions for damages authorized by the Sherman Act,
and of the criminal offenses denounced by that Act, are not touched
by the Norris-LaGuardia Act.
By a process of construction never, as I think, heretofore
indulged by this court, it is now found that, because Congress
forbade the issuing of injunctions to restrain certain conduct, it
intended to repeal the provisions of the Sherman Act authorizing
actions at law and criminal prosecutions for the commission of
torts and crimes defined by the antitrust laws. The doctrine now
announced seems to be that an indication of a change of policy in
an Act as respects one specific item in a general field of the law,
covered by an earlier Act, justifies this court in spelling out an
implied repeal of the whole of the earlier statute as applied to
conduct of the sort here involved. I venture to say that no court
has ever undertaken so radically to legislate where Congress has
refused so to do. [Footnote
The construction of the act now adopted is the more clearly
inadmissible when we remember that the scope
Page 312 U. S. 246
of proposed amendments and repeals of the antitrust laws in
respect of labor organizations has been the subject of constant
controversy and consideration in Congress. In the light of this
history, to attribute to Congress an intent to repeal legislation
which has had a definite and well understood scope and effect for
decades past, by resurrecting a rejected construction of the
Clayton Act and extending a policy strictly limited by the Congress
itself in the Norris-LaGuardia Act, seems to me a usurpation by the
courts of the function of the Congress not only novel, but fraught,
as well, with the most serious dangers to our constitutional system
of division of powers.
THE CHIEF JUSTICE joins in this opinion.
C. E. Stevens Co. v. Foster & Kleiser Co.,
311 U. S. 255
Loewe v. Lawlor, 208 U. S. 274
C. 323, 38 Stat. 730.
Duplex Printing Press Co. v. Deering, 254 U.
; Bedford Cut Stone Co. v. Stone Cutters'
Assn., 274 U. S. 37
United States v. Brims, 272 U.
C. 90, 47 Stat. 70, 29 U.S.C. §§ 101-115.
S.Rep. No. 163, 72d Cong., 1st Sess., pp. 7, 8; H.Rep. No. 669,
72d Cong., 1st Sess., pp. 2, 3; 75 Cong.Rec. 5464, 5467.
The rule always heretofore followed in respect of implied repeal
was recently expounded in an analogous situation in United
States v. Borden Co., 308 U. S. 188
308 U. S.