Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Jduge.
Before BUFFINGTON, DAVIS, and BIGGS, Circuit Judges.
This case is here on petition for the allowance of a supersedeas from a decree granting an ad interim restraining order by the District Court on June 8, 1938.
The question upon which the decision in this case depends is whether or not there was a "labor dispute" to which the plaintiffs were a party.
This is a suit in equity brought under section 1 of the Act of July 2, 1890 (15 U.S.C.A. § 1) and section 16 of the Act of October 15, 1914 (15 U.S.C.A. § 26) respectively called the Sherman Anti-Trust Act and the Clayton Act. Plaintiffs say that jurisdiction is also conferred upon this court by the Acts of March 23, 1932 (29 U.S.C.A. § 101 and 107) and July 5, 1935 (29 U.S.C.A. § 151 et seq.), known as the Norris-LaGuardia Act and the Wagner Act.
The amount involved in these prodceedings exceeds $3,000 exclusive of interest and costs. The capital invested in plaintiffs' business exceeds $2,000,000 and the amount of business done annually approximates $20,000,000.
Three corporations constitute the plaintiffs in the case. The Union Premier Food Stores, Inc., is a corporation organized and existing under the laws of Pennsylvania and the other two corporations, the Food Fair, Inc., of Pennsylvania, and The Food Fair, Inc., of New Jersey, are wholly owned subsidiaries of the Premier Company. All three corporations have their principal place of business at 58th Street and Grays Avenue, in the City of Philadelphia. These corporations are separate and distinct, but are component and interdependent units of a single enterprise engaged in the business of owning and operating retail food stores of the type known as "super markets" in Pennsylvania, New Jersey and Maryland.
There are four union defendants, all affiliated with the American Federation of Labor, and a number of individual defendants who are membes and officers of the union defendants.
The plaintiffs are now and for many years have been engaged in buying, selling and shipping merchandise in interstate commerce. They operate two warehouses, one located in Philadelphia and the other in Baltimore, and twenty-seven stores, located in New Jersey, Pennsylvania and Maryland. Approximately ninety per cent. of the merchandise used or handled by the plaintiffs' warehouses comes from points outside of Pennsylvania and Maryland, and about sixty per cent. of this merchandise is in turn shipped to stores outside the states in which the warehouses are located. They have working for them fifteen hundred or more employees who have no union of their own and are not members of any union. None of the employees are permanently attached to any particular store or corporation. They are or may be shifted from store to store or from corporation to corporation. So there is no question about the interstate character of the business; nor of the requisite sum involved.
For quite a while during the early part of this year the defendant unions tried to induce the plaintiffs' employees to join their unions, but they, of their own accord and without any influence or interference whatever on the part of the plaintiffs, refused to join. However, the defendants notified plaintiffs that they represented a majority of their employees.
Upon the refusal of plaintiffs' employees to join defendant unions, defendants placed professional, hired pickets (none of whom had in any way been connected with the plaintiffs) around their stores and warehouses, carrying signs which falsely stated that plaintiffs were unfair to organized labor and that their employees were on strike. The pickets, by surrounding plaintiffs' stores and warehouses, prevented customers from entering them, prevented trucks from loading and unloading, from taking merchandise to and from their stores and warehouses and from receiving merchandise for plaintiffs or from delivering merchandise to them.
The United Retail and Wholesale Employees of America, hereinafter called United, affiliated with the Committee for Industrial Organization (hereinafter referred to as the C.I.O.), observed what was going on and notified plaintiffs that it represented more than a majority of their employees and that under the provisions of the Wagner Act, it was entitled to represent their employees as their sole bargaining agent and that any agreement which they entered into with any other union would be illegal, void and punishable under the provisions of that Act. The situation was that both the affiliates of the American Federation of Labor on the one side and United, affiliated with the C.I.O., on the other side, claimed the right to represent plaintiffs' employees as their sole, collective bargaining agent. Thereupon plaintiffs suggested to both the defendants and United that they try to organize and unionize their employees in any way that they could; that both sides would have entire freedom to distribute literature to them, talk to and persuade them; that at the end of a campaign period of four days in which to organize and unionize them, an election be held to select their bargaining agents and plaintiffs would sign a contract with whichever union obtained a majority of the votes at the election. United agreed, but the defendants, although claiming to represent a majority of the employees, refused and declared that they would not withdraw their picket line unless and until plaintiffs entered into a "union a greement" with them. Plaintiffs thereupon, in order to stop the picketing, which was destroying their business, agreed to enter into a contract with the defendants and began negotiations accordingly. The pickets were thereupon withdrawn.
United vigorously protested against the proposed agreement with the defendants and filed a complaint on April 8, 1938, against plaintiffs with the National Labor Relations Board, hereinafter called the Board, charging them with unfair labor practices as defined in subsections (1)(2)(3) and (5) of section 8 of the Wagner Act, 29 U.S.C.A. § 158(1-3,5).
The Board notified the plaintiffs of these charges and asked if they cared to make a statement of their "side of the matter".
A preliminary hearing was held on April 19, 1938, at the office of the Board, 1432 Bankers Securities Building, Philadelphia, Pennsylvania. At that hearing Leo Fee, Esq., a hearer for the Board, suggested that the defendant unions, United and the plaintiffs agree that an election be held to determine which of the unions was entitled to represent plaintiffs' employees for the purpose of collective bargaining which was really the only question at issue. This suggestion was accepted by the plaintiffs and United but was rejected by the defendant unions. Both sides, the defendant unions and United, claiming as members a majority of plaintiffs' employees, asserted the right to be their sole collective bargaining representative. This question had to be determined by the Board and could not be determined, under the facts in this case, by the plaintiffs. They said then, as they have declared over and over again ever since, that they were willing to enter into a "union agreement" in accordance with the provisions of the Act with either union, whichever was entitled to represent their employees; that all they wanted to know was with which union or unions they could legally enter into a contract as legal representative for the purpose of collective bargaining in accordance with the provisions of the Act.
The plaintiffs then, May 12, 1938, received the following communication from the Board:
"National Labor Relations Board "Fourth Region
"1432 Bankers Securities Building
"Union Premier Food Stores, Inc.,
"58th Street and Grays ...