In a suit by a delicatessen store to enjoin a boycott of its
business by a labor union, the pleadings and supporting affidavits
alleged that: because the hours of delivery were inconvenient, the
store stopped buying bread from one bakery and started buying from
another; although the store had always made payments for the bread
direct to the first bakery, and not to the driver employed by the
bakery, a representative of the bakery drivers' union demanded that
payment of the balance due for bread previously bought from the
first bakery be made to the driver who had delivered it, and that
the store discontinue the sale of a certain nonunion product; there
was a dispute about the amount of the bill; the store discontinued
the sale of the nonunion product, but refused to make payment for
the bread to the driver, and the union instituted a boycott which
prevented the store from obtaining bread from other bakeries or
retail stores. The District Court denied the union's motion to
dismiss the suit and granted an injunction pendente lite.
The Court of Appeals dismissed an appeal.
1. The boycott did not grow out of a "labor dispute" within the
meaning of the Norris-LaGuardia Act, and the order granting an
injunction pendente lite
was therefore not appealable as
of right. Pp. 333 U. S.
(a) The controversy over the hour of delivery was not a "labor
dispute," since it was between the store and the bakery, and not
between the store and the driver or his union. Moreover, it was a
dead controversy. Pp. 333 U. S.
Page 333 U. S. 438
(b) The controversy over the amount of the bill was between the
store and the bakery, and it did not become a "labor dispute"
merely because a representative of the union undertook to collect
the bill. Pp. 333 U. S.
(c) Since it appears from the record before this Court that the
boycott was addressed only to the question of payment of the bill,
and that the incidental controversy over the sale of a nonunion
item (which had been discontinued) was a mere pretext, the latter
is not sufficient to make the case one growing out of a "labor
dispute." P. 333 U. S.
2. The Labor Management Relations Act of 1947, 61 Stat. 136, §
10(h), did not remove the limitations of the Norris-LaGuardia Act
upon the power to issue an injunction against a secondary boycott
where the injunction is sought by a private party. P. 333 U. S.
3. Since the record does not show that a stay was granted
pending review here, it must be assumed that the union's action in
lifting the boycott was merely obedience to the judgment here for
review, and the case cannot be considered to have become moot by
reason of the lifting of the boycott. P. 333 U. S.
4. A contention that a determination whether there is a labor
dispute should not rest upon affidavits is not ruled upon, because
the affidavits in this case were merely a gloss on the complaint,
constituted an informal amendment, and served only as allegations
and not proof. Pp. 333 U. S.
82 U.S.App.D.C. 138, 161 F.2d 380, affirmed.
The United States Court of Appeals for the District of Columbia
dismissed an appeal from a judgment of the District Court granting
an injunction pendente lite
against a boycott by a labor
union and denying a motion to dismiss the suit. 82 U.S.App.D.C.
138, 161 F.2d 380. This Court granted certiorari. 332 U.S. 756.
p. 333 U. S. 445
Page 333 U. S. 439
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is an action brought in a United States District Court to
enjoin interference with a business, and the question is whether
the complaint subjects that court to the limitations imposed by the
Norris-LaGuardia Act upon its equity jurisdiction.
This is the substance of the complaint. Respondent owns a
delicatessen store which sells food and serves meals. She obtained
bread for the delicatessen store from Hinkle's bakery. Deliveries
were made by a driver, an employee of Hinkle and a member of Local
Union No. 33, one of the petitioners. The driver delivered the
bread at noon, which inconvenienced the respondent, since the
checking of deliveries at that hour interfered with the serving of
lunches. Respondent "required" the driver to bring the bread at
another hour. Shortly thereafter, Hinkle informed the respondent
that it would no longer furnish her with bakery products. And so
respondent made arrangements with another bakery, which delivered
at a more convenient hour.
Three weeks later, the petitioner Andre, president of the union,
visited the delicatessen store and stated that the respondent owed
the driver approximately $150 and requested immediate payment.
Respondent replied that she had never had dealings with the driver,
but had paid Hinkle directly by check, and would pay the bill in
due course. Andre replied that the payment would have to be made to
the driver in full; furthermore, that, if the respondent did not
cease carrying a certain nonunion article of food he noticed on
display, delivery of bread, milk, and other products necessary to
the respondent's business would be cut off. Shortly thereafter, the
respondent sent a check to Hinkle for the balance of her bill. It
was returned by the union, with a letter signed by Andre asserting
that the payment was owed to its
Page 333 U. S. 440
member, the driver, and could not be accepted. The following
day, the bakery which had been serving respondent after Hinkle had
stopped doing so ceased to deal with her, explaining that the union
had threatened otherwise "to pull out all its drivers." Through an
effective boycott, the union kept the respondent from obtaining
bread from other bakeries or retail stores. The delicatessen store
was also picketed.
The complaint prayed for temporary and permanent injunctions
against the boycott and other interference with respondent's
business, the payment of damages, and the usual catch-all relief.
Petitioners moved to dismiss the action on the ground that the
controversy as set forth in the complaint involved a "labor
dispute" under the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. §
101 et seq.
Respondent filed an "answer to motion to
dismiss," attached to which were affidavits, including one of
Benjamin Wagshal, manager of the delicatessen store, elaborating
the incidents narrated in the complaint. Among other matters set
forth, he stated that payment for bread purchased from Hinkle had
always been made by check sent directly to Hinkle, and was never
made to a driver, and that neither the union nor any of its drivers
had ever previously questioned this practice; that Andre had
asserted by mail and at the delicatessen store that the check which
the respondent had sent to Hinkle was $12.22 short of the amount
owed, and that the nonunion item on sale to which Andre had
objected was not a subject of controversy, but merely an excuse for
Andre's attempt, on his visit to the delicatessen store, to enforce
his demands concerning the bill, and that, in any event, its sale
had been discontinued.
The District Court granted an injunction pendente lite,
restraining the petitioners from interfering with respondent's
business or preventing sale and delivery of bakery products to the
respondent, by boycott and picketing.
Page 333 U. S. 441
At the same time, it denied the petitioners' motion to dismiss.
Petitioners filed a notice of appeal to the Court of Appeals for
the District of Columbia, and respondents moved to dismiss the
If this case does not involve a "labor dispute" under the
Norris-LaGuardia Act, an appeal as of right could not be had in the
Court of Appeals for the District of Columbia. 31 Stat. 1189, 1225,
as amended, D.C.Code (1940) § 17-101. However, § 10 of the
Norris-LaGuardia Act, 47 Stat. 70, 72, 29 U.S.C. § 110, provides
for immediate review of an order granting or denying "any temporary
injunction in a case involving or growing out of a labor dispute. .
. ." *
The Court of
Page 333 U. S. 442
one justice dissenting, held that this was not such a case, and
dismissed the appeal. 161 F.2d 380. Because of asserted conflict
between this decision and prior decisions of this Court on the
scope of "labor dispute" within the meaning of the Norris-LaGuardia
Act, we granted certiorari. 332 U.S. 756.
A preliminary claim must be met that the case has become moot.
The short answer to the argument that the Labor Management
Relations Act of 1947, P.L. 101, 80th Cong., 1st Sess., § 10(h),
has removed the limitations of the Norris-LaGuardia Act upon the
power to issue injunctions against what are known as secondary
boycotts, is that the law has been changed only where an injunction
is sought by the National Labor Relations Board, not where
proceedings are instituted by a private party. The claim of
mootness is also based on an affidavit stating that, after
dismissal of the appeal by the Court of Appeals, the union lifted
its boycott. Since the record does not show that a stay of the
injunction was granted pending action in this Court, we must assume
that the union's action was merely obedience to the judgment now
here for review. We therefore turn to the merits.
The petitioners attach significance to three incidents for their
claim that a "labor dispute" is here involved.
1. The controversy over the hour of delivery. The petitioners
claim that this was a dispute "concerning terms or conditions of
[the driver's] employment,"
Page 333 U. S. 443
thereby raising a labor dispute, "whether or not the disputants
stand in the proximate relation of employer and employee." § 13(c)
of the Norris-LaGuardia Act. But the respondent had nothing to do
with the working conditions of Hinkle's employees, individually or
collectively. Her only desire was to have the bread come at an hour
suitable for her business, and she had no interest in what
arrangements Hinkle made to satisfy that desire, rather than run
the risk of losing her trade -- to have the bread delivered by the
same driver at a different hour, or by another driver, by an
independent contractor, or through some other resourceful
contrivance. To hold that, under such circumstances, a failure of
two businessmen to come to terms created a labor dispute merely
because what one of them sought might have affected the work of a
particular employee of the other would be to turn almost every
controversy between sellers and buyers over price, quantity,
quality, delivery, payment, credit, or any other business
transaction into a "labor dispute." Cf. Columbia River Packers
Assn. v. Hinton, 315 U. S. 143
Furthermore, on the basis of what we have before us, respondent's
disagreement with Hinkle over the delivery hour was a dead
controversy, not involved in the subsequent dispute with the union,
or in the boycott against which the injunction was directed.
2. The controversy over the bill. The petitioners regard both
the question whether payment was to be made to the driver, rather
than to Hinkle, and the disagreement over the disputed sum of
$12.22, as a matter concerning the driver's wages, and therefore a
condition of his employment. But, on the allegations now here,
respondent had nothing to do with the payment of the driver's
wages. The delicatessen store was Hinkle's customer. On the basis
of the allegations to be considered, the driver would receive his
pay whether or not respondent
Page 333 U. S. 444
paid her bill. It is immaterial that the driver may have been
the conduit for payment -- as drivers who deliver packages normally
are. The same is true as to the disputed item of $12.22. The mere
fact that it is a labor union representative, rather than a bill
collector, who, with or without the creditor's consent, seeks to
obtain payment of an obligation does not transmute a business
controversy into a Norris-LaGuardia "labor dispute." Cf. Dorchy
v. Kansas, 272 U. S. 306
272 U. S.
3. The nonunion item on sale in the delicatessen store. Sale by
a merchant of nonunion commodities is, no doubt, a traditional
source of labor disputes within the scope of the Norris-LaGuardia
Act. While the complaint itself did not indicate the history of
this matter after Andre's visit, the affidavit attached to the
"answer to the motion to dismiss" sets forth that it was not a
bone of contention, but a mere pretext, and,
further, that the respondent thereafter withdrew the item from
sale. While the conclusion of the incident giving rise to a
controversy may not necessarily terminate a labor dispute (cf.
Hunt v. Crumboch, 325 U. S. 821
what is before us leaves no doubt that the subsequent boycott was
addressed only to the question of payment of the bill. Petitioners
suggest that, since no injunction may issue in a case growing out
of a labor dispute except upon oral testimony, determination
whether there is a labor dispute should not rest on affidavits.
But, in this case, the affidavits were merely a gloss on the
complaint, and, as such, constituted an informal amendment. They
serve here as allegations, not proof.
This case was decided on a motion to dismiss. All that was
determined was that, on the basis of the respondent's claims, which
the petitioners chose not to controvert, the Norris-LaGuardia Act
did not apply. Since the only issue before the court below, and
therefore before us, was the appealability of the order for an
Page 333 U. S. 445
which in turn depended on the applicability of
the Norris-LaGuardia Act, other questions raised are not now open
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE MURPHY
MR. JUSTICE RUTLEDGE took no part in the consideration or
decision of this case.
* Section 13 of the Norris-LaGuardia Act, 47 Stat. 70, 73, 29
U.S.C. § 113, reads as follows:
"SEC. 13. When used in this Act, and for the purposes of this
Act -- (a) A case shall be held to involve or to grow out of a
labor dispute when the case involves persons who are engaged in the
same industry, trade, craft, or occupation; or have direct or
indirect interests therein; or who are employees of the same
employer; or who are members of the same or an affiliated
organization of employers or employees; whether such dispute is (1)
between one or more employers or associations of employers and one
or more employees or associations of employees; (2) between one or
more employers or associations of employers and one or more
employers or associations of employers; or (3) between one or more
employees or associations of employees and one or more employees or
associations of employees; or when the case involves any
conflicting or competing interests in a 'labor dispute' (as
hereinafter defined) of 'persons participating or interested'
therein (as hereinafter defined)."
"(b) A person or association shall be held to be a person
participating or interested in a labor dispute if relief is sought
against him or it, and if he or it 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
"(c) The term 'labor dispute' 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."
"(d) The term 'court of the United States' means any court of
the United States whose jurisdiction has been or may be conferred
or defined or limited by Act of Congress, including the courts of
the District of Columbia."