ELDER v. CITY OF JEFFERSONVILLE

LOWDERMILK, Judge.

The defendants-appellants, Jeffersonville Firemen (Firemen) bring this appeal from the issuance of a permanent injunction which prohibited further strikes in connection with labor disputes between them and the City of Jeffersonville (City).

The original complaint, filed August 2, 1974, alleged that one shift of the Fire Department employees had failed to report to work, and that such action endangered the people and property of Jeffersonville. The trial court issued a restraining order without notice, the same day. On August 4, 1974, in response to City's amended complaint, the trial court issued a supplementary restraining order directed to the firemen not named in the original complaint, and further set a hearing for August 6, 1974, to determine whether the restraining order should be permanent.

Following the presentation of evidence, and the overruling of Firemen's motion for dismissal, the trial court issued a temporary injunction against all job actions or strikes. Hearing for a permanent injunction was set for August 27, 1974.

In the interim period Firemen filed various responsive pleadings, parts of which were eventually struck by the court. All prior evidence on the matter was incorporated by reference into the hearing on the permanent injunction.

On August 28, 1974, the trial court issued a permanent injunction perpetually enjoining Firemen from striking.

On appeal Firemen raise three issues:

We feel it is necessary at the outset to clarify what is not involved in the above issues. First, there is no argument by Firemen that they are not public employees. Second, there is no issue as to whether public employees may join labor unions and select an exclusive bargaining agent of such a union. Third, there are no issues as to whether municipalities, as public employers, must or may negotiate with the selected union representative, or whether binding negotiation and arbitration agreements may be enacted between public employers and employees.

Thus, a careful reading of the arguments establishes the following specific arguments under each of the above general issues:

In response to the above arguments, City earnestly maintains that the only issue is whether Firemen were in fact, on strike. From this City maintains that the trial court correctly exercised its discretionary power over the admission of evidence by excluding those facts which detailed the labor negotiations.

Further, City argues that the issuance of an injunction is within the sound discretion of the trial court, reversible only for abuse, and that an injunction may issue to prevent multiplicity of litigation or irreparable injury.

In our opinion, disposition of this appeal is controlled by our Supreme Court's decision in Anderson Federation of Teachers, Local 519 v. School City of Anderson et al. (1969), 252 Ind. 558, 251 N.E.2d 15; rehearing (1970), 252 Ind. 581, 254 N.E.2d 329. Although the decision in Anderson was not unanimous, we are bound by the language of the majority opinion. Troue v. Marker (1969), 145 Ind.App. 111, 249 N.E.2d 512; Washington v. Chrysler Corp. (1964), 137 Ind.App. 482, 200 N.E.2d 883.

The original opinion in Anderson relied heavily on United States v. United Mine Workers (1947), 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884, and quoted the following from the United States Supreme Court's discussion of labor legislation:

Our Supreme Court went on to state that:

The court further concluded that:

Finally, the language of the court on rehearing summarizes their position with regard to strikes by public employees:

Our Supreme Court also found that the injunctive process could be properly applied to cases involving strikes by public employees. Anderson, supra, 252 at p. 560, 251 N.E.2d 15.

Given the above, the primary question presented is whether the injunction was properly granted. In deciding this question we note that:

Our Supreme Court has held an abuse of discretion to be:

In the case at bar, the court could be found to have abused its discretion if it granted injunctive relief contrary to the facts, or if it granted such relief based on less than all of the properly admissable facts.

It is at this point that Firemen's arguments become salient, because the trial court refused evidence which they claim was relevant to the issuance of an injunction. Further, Firemen's argument that the strike was over when the relief was granted is applicable in this context.

Firemen's arguments are based on two equitable concepts. First, that injunctive relief is essentially for protection from future injury, or threatened injury, and, second, that the party seeking the equitable relief of injunction must come into court with clean hands.

In support of the first proposition, Firemen notes the comments of the trial judge, apparently made on August 27, 1974, to-wit:

Firemen argue that this is proof of the fact that the alleged injury to City was past; that no strike was in progress when the injunction was issued.

City does not meet this argument directly, but contends that it should not be considered on appeal because the issue was never raised at trial.

After a thorough review of the record we are of the opinion that this issue should be decided on its merits. While the arguments of Firemen during the hearings are less than precise as they relate to this particular issue, we feel they are sufficient to warrant a consideration of the applicable facts and law.

Aside from the above-quoted comments of the trial judge, Firemen have presented no other facts which indicate that the work-stoppage was over when the injunctions (both the temporary and permanent injunctions are questioned) were issued. However, we are of the opinion that even if the evidence presented was sufficient to show there was no strike in progress when the injunctions were issued, absent other facts, both the temporary (preliminary) and permanent injunctions were proper.

As noted above, the granting of an injunction is within the sound discretion of the trial court. Because of our holding, it must be demonstrated that, assuming no strike was in progress, it was not an abuse of discretion to issue the injunctions.

With regard to the temporary injunction we note the following language from Tuf-Tread Corp. v. Kilborn (1930), 202 Ind. 154, 172 N.E. 353:

Further, in the case of Powell v. Powell (1974), Ind. App., 310 N.E.2d 898, this court stated:

The above quotations do not, however, serve to grant unlimited power to the trial court. It is particularly appropriate in the case at bar that we note the following cases and language.

In addition to the above, we are also faced with the general principle that a court should not order the doing of a useless thing. Hutcheson v. Hanson (1951), 121 Ind.App. 546, 98 N.E.2d 688; Doss v. Yingling (1937), 103 Ind.App. 555, 9 N.E.2d 139. Thus, it is apparent that, given the nature of injunctive relief, there are valid reasons for withholding the issuance of the harsh remedy of injunction.

In the case at bar, it is necessary, therefore, to determine what reasons may support the granting of the injunction. We feel that in situations similar to the present, the following considerations are particularly pertinent:

See also Valentine v. Indianapolis-Marion County Building Auth., 355 F.Supp. 1240, 1242 (S.D.Ind. 1973).3

With the above considerations in mind, we take final note of Atlantic Richfield Co. v. Oil, Chemical & A. Wkrs. Int. U., 447 F.2d 945, 947 (7th Cir.1971). This case involved an illegal strike by employees at Atlantic's plant in East Chicago, Indiana. Before the case was heard by the Court of Appeals, the strike was halted. The court then stated:

At the time the temporary injunction was issued there was some evidence that a strike was in progress and that it might continue. It is also evidence that from such facts it could have been reasonably inferred that great harm could befall one or a number of persons should a fire alarm go unanswered. Given these facts in light of the standards and considerations set forth in the Powell and Indiana State Employees cases, we hold the temporary injunction was properly granted.

For similar reasons we hold that the permanent injunction was proper. We are mindful that the required quantum of evidence may be somewhat higher when a permanent injunction is involved. Tuf-Tread Corp. v. Kilborn, supra. However, we feel that sufficient evidence was produced.

Even if the strike which prompted the litigation had subsided when the permanent injunction was issued, we are presented no evidence that the disputes which prompted the initial strike had been resolved. Thus, there existed the possibility that further "job-actions" would occur, thus again endangering the lives and property of the citizens of Jeffersonville. Atlantic-Richfield, supra.

Finally, we note that once there was sufficient proof presented at the hearing for the permanent injunction that a strike had occurred or was occurring, the trial court could properly issue an injunction based on the Anderson case, supra. Inasmuch as our Supreme Court has declared strikes by public employees improper, a temporary injunction could issue to halt ongoing labor strikes, and a permanent injunction may issue to prevent future strikes.

II.

The basis for Firemen's second group of arguments is that a party seeking the equitable relief of injunction must come into court with "clean hands."

It is Firemen's contention that rhetorical paragraphs 4, 5, and 6 of their responsive pleading raised the issue of labor negotiations, which, they contend, would show that City refused to negotiate in good faith. As Firemen argue this pleading was proper to raise the question, they also contend that evidence tending to prove the substance of the pleading was improperly refused.

DECISION

We have noted above that whether public employees may join or form unions, and thereafter bargain collectively are not issues in the case at bar. Firemen's "clean hands" arguments thus must be viewed as a contention that the trial court abused its discretion by granting injunctions on less than all the properly admissable evidence.

We hold that paragraphs 4, 5, and 6 of the responsive pleading were properly struck, and that evidence bearing on said paragraphs was properly refused.

In light of the Anderson opinions, the course of labor negotiations before or after the alleged strike would be of little significance. Strikes by public employees have been proscribed. Whether such strike occurred after lengthy discussion or absolute refusal to negotiate apparently doesn't matter. The question to be decided is whether (1) public employees are involved, and (2) whether there is in fact a strike or "job action."

In the case at bar, there was evidence that Firemen were not on the job; that the fire stations were being picketed; and that the Mayor had been warned by letter that such a loss of fire protection would occur. Thus, there was ample evidence of a strike by public employees. Such being the case, an injunction could properly issue. Therefore, whether or not we agree completely, public employees have been barred from all strike activity, and there is no exception granted because the public employer has failed or refused to negotiate.

Finding no reversible error, the judgment of the trial court is

Affirmed.

ROBERTSON, C.J., and LYBROOK, J., concur.