was to stop construction work on said projects."
If, as I hold, the object of the conspiracy was not legitimate, it is immaterial whether the conduct alleged in Par. 3 is lawful or not. On the other hand, if I should be wrong as to the legitimacy of the object of the conspiracy, the indictment nevertheless, in Par. 4 thereof, alleges means which are clearly unlawful and which are separate and distinct from the conduct set forth in Par. 3. That being true, the indictment states a violation of Sec. 3 of the Sherman Act not within the exemption of Sec. 6 of the Clayton Act, for under the latter section not only must the object be legitimate, but the means employed to effectuate the object must be lawful.
The defendants' brief is devoted, almost in its entirety, to argument in support of the legality of the means set forth in Par. 3 of the indictment. Government counsel argue at length that the conduct set forth in Par. 3 was, under the circumstances of this case, unlawful.
The court is unable to determine the legality of the means set forth in Par. 3 of the indictment. It is not a case of applying conflicting principles of law to a definite, admitted state of facts, but rather a case of being unable to determine what the facts are in order to apply the law. Counsel differ as to what facts are alleged, in this aspect of the case, and the court, from an independent study, is unable to determine them.
Defendants argue that what is pleaded is that defendants urged, induced and assisted strikes by members of the defendant union, among whom were employees of the three companies involved, and cite cases to sustain their view of the law in that situation. The difficulty with applying defendants' law is that the indictment nowhere alleges that any members of the defendant union were employees of these three companies. The only union affiliation of the employees of these companies appears in Par. 1 of the indictment, where it is stated that 75 per cent of such employees were members of the operating engineers union. Absolutely nothing is stated as to the other 25 per cent; they may have been affiliated with no union at all, or with the defendant union, or with other unions. Defendants' counsel argues that since it alleged that defendants urged, induced and assisted in the calling of strikes by members of the defendant union, members of the defendant union must have occupied the status of employees. That may be true. Obviously a strike cannot exist without the employer-employee relationship. But the indictment does not allege that any members of the defendant union who struck were employees of the three "mixer" companies. Indeed, the theory of the Government, as set forth in its briefs, is that the indictment charges that the strikes referred to in Par. 3 were called on various projects against employers other than these three mixer companies, and with whom the defendants had no dispute. Defendants' counsel argues that "this 25 per cent of employees or some of them must have been members" of the defendant union. That is mere argument. The indictment does not so state, and I am not at liberty to read into it what is not there.
The Government, as just indicated, takes the position that no members of the defendant union were amount the other 25 per cent of the employees of these companies on these "mixer" trucks, and the strikes in question were called against employers other than the three "mixer" companies for the purpose of forcing such other employers to put pressure upon the "mixer" companies to accede to the demands of defendant union. The Government bases its contentions as to the illegality and unreasonabless of these strikes upon the proposition that an employer-employee relationship did not exist between the three "mixer" companies and members of the defendant union. Here again the difficulty is that the indictment does not allege the vital fact upon which that contention is based.
Obviously the court cannot apply the law in the cases cited by counsel when it is unable to determine whether the facts admitted by the demurrer, with relation to the strikes mentioned in Par. 3, would bring this case within the principles laid down in those cases. It would be pointless to enter upon an abstract discussion of the law of strikes.
As to Sec. 20 of the Clayton Act: The first paragraph of Sec. 20 is merely a limitation upon the power of the federal courts to grant injunctions in certain specified types of disputes. The second paragraph of Sec. 20 prohibits the restraining and enjoining of specified acts, and concludes:
"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 conduct constituting the means set forth in Par. 4 of the indictment is not embraced within any of the provisions of this paragraph of Sec. 20. On the contrary, the acts set forth in said second paragraph of Sec. 20 are consistently described therein as "peaceful" and "lawful."
I find nothing either in Sec. 6 or in Sec. 20 of the Clayton Act which makes legitimate and lawful either the object of this conspiracy or the means, set forth in Par. 4 of the indictment, to attain that object.
Defendants further rely upon the provisions of the Norris-LaGuardia Act, 29 U.S.C. Secs. 101-115, 29 U.S.C.A. §§ 101-115, which extends the prohibitions of the Clayton Act in respect of the jurisdiction of federal courts to grant injunctions in labor disputes. This act is limited by its terms to civil injunction suits, the purpose of the act being further to limit the use of the injunctive remedy, and prevent possible abuse of that remedy, in labor controversies.
Irrespective of whether the controversy which appears from this indictment is or is not a "labor dispute" within the broad interpretations which have been put upon Sec. 13 of the Norris-LaGuardia Act, 29 U.S.C. Sec. 113, 29 U.S.C.A. § 113 and regardless of whether the conduct set forth in Par. 4 of the indictment is enjoinable or not, such conduct is unlawful, and when an indictment alleges a conspiracy by any persons, formed to employ such unlawful conduct as a means to attain an object, legal or illegal, and the intent and effect of such conspiracy is to restrain trade and commerce within the District of Columbia, such indictment alleges a violation of Sec. 3 of the Sherman Act.
The allegations as to the prevention, by threat of force and by force, of delivery of contrete in "mixer" trucks not operated by members of the defendant union, to various construction projects within this District, show a direct, unreasonable and unlawful restraint of trade and commerce in this District.
The demurrer is overruled and the motion to quash is denied. Defendants are given 20 days within which to plead to the indictment.
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