United Transportation Union (UTU)
Appellee AD&N sought injunctive relief when UTU, on strike against the Chicago, Rock Island & Pacific Railroad Company (hereinafter Rock Island), began to picket AD&N and induce its employees to leave their jobs. This picketing was in response to AD&N's use of managerial personnel to move the freight of an affiliated railroad in Rock Island's railroad yard at Fordyce, Arkansas. AD&N has about seventy-five employees, some of whom belong to UTU. But, at the time the picketing occurred, UTU and AD&N had no dispute over the pay or working conditions of AD&N employees.
The material facts are not in dispute. AD&N is owned by the Georgia-Pacific Company, which makes wood-based products. AD&N operates on about forty miles of track between the Arkansas towns of Monticelli and Crosset. AD&N serves several customers along this route. Its principal customers are the Georgia-Pacific processing plants around Crosset.
About fifty miles from Crosset is Fordyce, where Georgia-Pacific owns and operates both a mill and a one-engine, two-man railroad, the Fordyce & Princeton Railway Company (F&P). F&P leases freight cars from other railroads and transports them over the half-mile track between the mill and the railroad yard at Fordyce. During the relevant period, this yard was owned by Rock Island, which leased facilities to F&P and to the St. Louis Southwestern Railway Company (hereinafter Cotton Belt). By a trackage agreement, Rock Island permitted F&P and Cotton Belt to use specified Rock Island track "for the purpose of effecting interchange with each other." UTU was not a signatory to this agreement.
Before the Rock Island strike, F&P would deliver carloads of processed wood to the Fordyce yard and take empty cars back to the mill. Rock Island or Cotton Belt employees would deliver empty cars to the yard. Rock Island employees would pick up loaded cars to be routed via Rock Island, Cotton Belt employees would pick up cars to be routed via Cotton Belt. About 150 cars were interchanged each day in the Fordyce yard, with F&P's interchanges accounting for about fifteen to twenty of that number.
In late August of 1979, UTU, after exhausting conciliation proceedings required by the Railway Labor Act, began a lawful strike against Rock Island and posted pickets at Rock Island's Fordyce depot. This depot was beside the Rock Island track that linked F&P with the Cotton Belt and Rock Island lines. Although not themselves on strike, Cotton belt employees refused to cross UTU's picket line to interchange cars between Cotton Belt and F&P. F&P's employees similarly refused.
In response to this development, AD&N and F&P — which had common management — dispatched three or four AD&N officers from Crosset to move the F&P freight.
After recognizing that the workers crossing picket lines at Fordyce were AD&N personnel, UTU sent members to picket the AD&N line near Crosset. At 6:45 p. m. on September 5, UTU members bearing picket signs accosted an AD&N train leaving Crosset. AD&N employees responded by abandoning the train. At 11:30 p. m. additional UTU pickets appeared at the main entrance of Georgia-Pacific's Crosset plant complex. The effect of these picket lines was that about sixty of AD&N's seventy-five employees chose to stay off the job. The remaining employees, supplemented by management personnel, could perform no more than twenty-five percent of AD&N's regular rail service.
Continual use of the AD&N line was critical to operation of Georgia-Pacific's Crosset plants. Each day, AD&N brought in seventy carloads of raw materials to Crosset and carried out a like amount of finished product. No alternative form of shipment was reasonably available. Because the Crosset plants had few storage facilities, a one or two-day delay in either outgoing or incoming rail shipments would force the plants to shut down. In that event, about 3,000 employees would be out of work. The district court found that trade and public revenues in the surrounding areas would suffer by the loss of millions of dollars per month in wages.
On September 6, the day after UTU's picketing against AD&N began, AD&N posted a $25,000 indemnity bond and secured a temporary restraining order against the picketing. This order remained in effect until September 14, when it was superseded by the district court's preliminary injunction. In issuing the injunction, the court held that AD&N had met its two-fold burden of establishing the potential for irreparable harm absent immediate injunctive relief and a likelihood of success on the merits. As to the latter, the court ruled that UTU's secondary picketing against AD&N was prohibited by the Railway Labor Act and not protected by the anti-injunctive provisions of the Norris-LaGuardia Act.
Federal jurisdiction extends only to actual cases and controversies, U.S.Const. art. 3, § 2, and the case or controversy "must exist at stages of appellate * * * review, and not simply at the date the action is initiated." Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). See SEC v. Medical Committee for Human Rights, 404 U.S. 403, 405-07, 92 S.Ct. 577, 579-580, 30 L.Ed.2d 560 (1972). Noting that the UTU-Rock Island strike ended while this appeal was pending, AD&N contends that the termination of the strike deprived UTU of any present interest in the outcome on appeal and argues that UTU's appeal should therefore be dismissed as moot.
We cannot agree. As the party seeking extraordinary injunctive relief, AD&N was required to post a bond to indemnify UTU for any loss UTU might sustain as a result of being wrongfully enjoined
III. Jurisdiction to Issue Injunctive Relief
UTU attacks the district court's jurisdiction on two alternative grounds. First, UTU contends that this case involved or arose out of a "labor dispute" — either between UTU and Rock Island or between UTU and AD&N — within the meaning of the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115. Accepting that contention would mean that the district court was affirmatively deprived of any jurisdiction it otherwise might have had to issue injunctive relief. Second, UTU contends that, even should Norris-LaGuardia not apply, AD&N had no federal right of action for injunctive relief. We reject both contentions and conclude the district court had jurisdiction to issue an injunction.
A. Effect of the Anti-Injunction Act
The Norris-LaGuardia Act of 1932 generally removes the jurisdiction of federal courts to issue injunctive relief in "any case involving or growing out of any labor dispute," 29 U.S.C. § 101. Injunctive relief against secondary picketing in such a case is either absolutely barred, see 29 U.S.C. § 104(a), (e) & (i), or is available only under special circumstances which were not shown here, see 29 U.S.C. §§ 107, 108. Applicability of the Act's anti-injunction proscription therefore depends solely on whether this was a case involving or arising out of a labor dispute within the meaning of the Act.
Section 13(c) of the Act, 29 U.S.C. § 113(c), defines "labor dispute" as "any controversy" concerning either "terms or conditions of employment" or "representation" of persons in negotiating "terms or conditions of employment." A "labor dispute" exists under section 13(c) "regardless of whether or not the disputants stand in the proximate relation of employer and employee." The "labor dispute" in this case was that which existed between UTU and Rock Island. We reject UTU's contention that another "labor dispute" existed between it and AD&N. UTU's only asserted dispute with AD&N was over the latter's use of managerial personnel to move F&P freight over Rock Island track in Fordyce. This controversy concerned neither the representation of AD&N employees nor their terms or conditions of employment. Cf. Milk Wagon Drivers' Union, Local 753 v. Lake Valley Farm Products, Inc., 311 U.S. 91, 96-97, 61 S.Ct. 122, 124-25, 85 L.Ed. 63 (1940) ("labor dispute" exists between nonstruck employer and picketing union where picketing is aimed at compelling employer's employees to join union for purpose of improving their pay and working conditions).
Application of the Norris-LaGuardia Act thus depends on whether this case "involves or arises out of" the only possibly relevant
29 U.S.C. § 113(a). UTU contends we should read this expansive language literally and rule that the present case is a case involving or growing out of a labor dispute on the basis that UTU and AD&N "are engaged in the same industry * * * or have a direct or indirect interests therein." Most courts considering the scope of section 13(a), however, have not relied on a literal reading. Instead, these courts have come to results in accord with the following test: when a non-struck employer seeks to have a union's activities enjoined by a federal court the case involves or grows out of a labor dispute — and thus the Norris-LaGuardia anti-injunction provisions apply — only when the offending activity is furthering the union's economic interest in a labor dispute. E. g., Brotherhood of Railroad Trainmen v. Atlantic Coast Line Railroad, 362 F.2d 649, 654-55 (5th Cir.), aff'd by an equally divided court, 385 U.S. 20, 87 S.Ct. 226, 17 L.Ed.2d 20 (1966) (labor dispute involved; secondary picketing not enjoinable where union "attempts to bring secondary pressure upon the employer with whom its primary dispute exists by means of [picketing] secondary employer, who has aligned himself with the primary employer in some substantial manner"); Lakefront Dock & Railroad Terminal Co. v. ILA, 333 F.2d 549, 553 (6th Cir. 1962) (labor dispute not involved; sympathy strike enjoinable where longshoremen's union honoring picket line of seafarers' union claims no economic interest in dispute between picketing seafarers' union and owner of ship berthed at longshoremen's dock); Amalgamated Association of Street Employees v. Dixie Motor Coach Corp., 170 F.2d 902 (8th Cir. 1948) (labor dispute involved; court could not enjoin picketing of plaintiff's bus depot where plaintiff provides facilities to struck bus company); Western Maryland R.R. Co. v. System Board of Adjustment, 465 F.Supp. 963, 973 (D.Md.1979) (labor dispute not involved; union on strike against primary railroad enjoined from picketing facilities of secondary railroads which do not interchange cars with primary railroad); Southern Railway v. Brotherhood of Railway Clerks, 458 F.Supp. 1189, 1191-92 (D.S.C. 1978) (labor dispute involved; secondary picketing not enjoinable where non-struck plaintiff railroad interchanging with struck railroad also participates in strike insurance plan with struck railroad); Terminal Railroad Association v. Brotherhood of Railway Clerks, 458 F.Supp. 100, 102-05 (E.D.Mo. 1978) (labor dispute not involved; secondary picketing enjoinable because facts do not show substantial alignment between non-struck plaintiff railroad and struck railroad); Consolidated Rail Corp. v. Brotherhood of Railway Clerks, 84 Lab.Cas. (CCH) ¶ 10,924 at 19,586-588 (W.D.N.Y.1978) (labor dispute not involved; picketing of nonstruck railroad's solely-owned facilities enjoinable; isolated instances of plaintiff's supervisors performing work for struck railroad do not constitute substantial alignment); Alton & Southern Railway v. Brotherhood of Railway Clerks, 84 Lab.Cas. (CCH) ¶ 10,835 at 19,256-57 (D.D.C.), aff'd, (D.C. Cir. Sept. 15, 1978), cert. denied, 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 670 (1978) (labor dispute involved; picketing and sympathy strike not enjoinable because non-struck
Under this "economic self-interest test," the subject matter of the present case — the picketing of AD&N — would involve or arise out of the UTU-Rock Island labor dispute if AD&N were "substantially aligned" with Rock Island. See, e. g., Brotherhood of Railroad Trainmen v. Atlantic Coast Line Railroad Co., supra. In Atlantic Coast Line the employer seeking injunctive relief against the picketing was a railroad terminal which was substantially aligned with the struck employer, a railroad, in the sense that the railroad had a one-quarter ownership interest in the terminal and received services from the terminal that "in fact constitute[d] an integral part of [the struck railroad's] day-to-day operations." 362 F.2d at 651. A different situation prevailed here. There was substantial evidence for the district court to find that the secondary employer here — AD&N — did not provide the primary employer — Rock Island — with essential services or facilities. AD&N personnel did little more than help F&P exercise its contractual right to interchange Fordyce yard cars in order to continue rail service for its own customer, the Georgia-Pacific mill at Fordyce. Any Rock Island cars moved by AD&N personnel were moved for F&P's benefit, not Rock Island's. UTU has failed to show that AD&N performed essential services for Rock Island,
UTU would have us avoid this result by rejecting the economic self-interest test in favor of a literal application of section 13(a). UTU argues the narrower scope circumscribed by the self-interest test is invalid in light of the express language and historical purpose of the Norris-LaGuardia Act. We disagree. Although the plain language of a statute is often controlling, it is impermissible to follow a literal reading that engenders absurd consequences where there is an alternative interpretation that reasonably effects the statute's purpose. United States v. Ryan, 284 U.S. 167, 175, 52 S.Ct. 65, 68, 76 L.Ed. 224 (1931). Absurd consequences and a reasonable alternative are present here.
Read as a verbal formula, without regard to its background and to the rest of the Norris-LaGuardia Act, section 13(a) would operate to bar injunctive relief in any case involving persons with direct or indirect interests in the same industry, trade, craft, or occupation, regardless of whether any of these persons has an interest in a labor dispute. Consider, for example, a diversity case in which plaintiff seeks specific performance of a contract to sell real property. If both plaintiff and defendant belong to the same industry, trade, craft, or occupation, or have direct or indirect interests therein, a literal construction of section 13(a) would operate to deprive the federal courts of injunctive jurisdiction.
The background of the Norris-LaGuardia Act indicates its intended scope. The House report advocating passage of the Norris-LaGuardia anti-injunction provisions explains that their purpose was "to protect the rights of labor in the same manner the Congress intended when it enacted the Clayton Act * * *." H.R.Rep.No.669, 72d Cong. 1st Sess. 3 (1932). Section 20 of the Clayton Act provides that "in any case between an employer and employees * * involving, or growing out of, a dispute concerning terms or conditions or employment," a federal court may not enjoin persons from "ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do." 29 U.S.C. § 52. In a series of cases, and particularly in Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349 (1921), the Supreme Court interpreted section 20 to encompass only those cases in which the adversaries had an employer-employee relationship.
Read in light of this background, it is reasonable to conclude that section 13(a) was meant to preclude injunctive interference with bargaining or organizing on an industry-wide or craft-wide basis. It was not meant to extend an anti-injunctive shield for union activities beyond the place where the union's interests in a labor dispute cease. As one commentator explains:
Gregory, supra, at 190, 192. But it remains that "participants in a labor dispute must be able to show an economic interest at stake in order to invoke the protection of the act at all." Id. at 194.
We thus conclude that the economic self-interest test reasonably defines the scope of the Norris-LaGuardia Act's anti-injunction provisions. The district court was not clearly erroneous in finding that UTU demonstrated no economic interest in pressuring AD&N to cease helping F&P service its customer-owner Georgia-Pacific. Because AD&N and the struck Rock Island Railroad were not "substantially aligned," UTU's picketing of AD&N was not within the permissible area of economic conflict and thus was not protected by the Norris-LaGuardia Act.
B. Basis for Federal Jurisdiction
Having determined that the Norris-La-Guardia Act did not negate federal injunctive jurisdiction in this case, we address UTU's argument that federal law provided no basis for that jurisdiction. AD&N did not plead diversity of citizenship, but asserts that federal jurisdiction existed under the Railway Labor Act (RLA), 45 U.S.C. §§ 151-188, see 28 U.S.C. § 1331,
We hesitate to endorse the district court's reliance on the RLA because the rationale for invoking the RLA to enjoin the picketing involved in this case is not clear.
It is true that federal courts have issued injunctions under the RLA to compel labor disputants to observe their duty to bargain over differences in good faith,
Thus, unless we are to hold that the RLA flatly prohibits certain forms of secondary activity — a point we do not reach — the RLA justified an injunction in this case only if an injunction was necessary to promote or protect the RLA dispute settlement process. That process is relevant, obviously, only if there is a negotiable dispute within the contemplation of the Act.
Courts have characterized disputes under the RLA as either "major" or "minor." Negotiation over major disputes concerns changes in "rates of pay, rules, or working conditions," 45 U.S.C. § 151a(4), and thus looks to the formation of collective bargaining agreements. Minor disputes concern "interpretation or application of [existing] agreements," 45 U.S.C. § 151a(5), and thus involve the assertion of vested rights. See Elgin, Joliet & Eastern Railway v. Burley, 325 U.S. 711, 723-24, 65 S.Ct. 1282, 1289-1290, 89 L.Ed. 1886 (1945). The first step toward settlement of either kind of dispute is negotiation and conference between the parties. Thereafter, procedures for major and minor disputes diverge. In a major dispute, either party may invoke the conciliation process administered by the National Mediation Board. If mediation fails and if the parties do not agree to binding arbitration, then either party may resort to unilateral action unless the Mediation Board and the President of the United States decide the dispute should be made subject to the investigation of an emergency board. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378, 89 S.Ct. 1109, 1115, 22 L.Ed.2d 344 (1969). In a minor dispute, completion of the negotiation and conference step permits either party to invoke the arbitration of the National Railroad Adjustment Board, whose decision is "final and binding" 45 U.S.C. § 153 (First) (m). See Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad, supra, 353 U.S. at 33-34, 77 S.Ct. at 636-637.
The difficulty with this argument is that the duties and procedures of the RLA are meaningful only in the presence of an RLA dispute.
The RLA does recognize the possibility of a third kind of dispute — "[a]ny other dispute," neither major nor minor — which may be referred by either party to the Mediation Board if the dispute is "not adjusted in conference between the parties or where conferences are refused." 45 U.S.C. § 155 (First) (b). It is not at all clear, however, that this vaguely defined third category of disputes would encompass controversies between striking employees and non-struck employers, for the jurisdiction of the Mediation Board may well extend only to employer-employee disputes, see Note, Judicial Approaches to Secondary Boycotts Under the Railway Labor Act, 42 N.Y.U.L.Rev. 928, 933-34 (1967).
Although a more thorough examination of the RLA and other sources of labor law might well reveal a basis for federal injunctive jurisdiction,
The Interstate Commerce Act requires common carriers subject to its jurisdiction
UTU's picketing was not privileged. Although not clearly forbidden by the RLA, it was not endorsed, either.
IV. Irreparable Injury
It remains to consider whether the district court, possessing injunctive jurisdiction, abused its discretion in issuing injunctive relief. Given that AD&N has made its case on the merits, the focus now is on a balancing of harms. UTU argues AD&N failed to show a potential irreparable injury such as would justify injunctive relief because the harmful effects alleged were the ordinary incidents of peaceful picketing. We disagree. AD&N's potential harm in the absence of injunctive relief transcended the ordinary in that the district court found that three quarters of AD&N's operation would be shut down by UTU's picketing. See Wilson v. Milk Drivers & Dairy Employees Local 471, 491 F.2d 200, 206 (8th Cir. 1974). Moreover, as noted above, claims could have been filed against AD&N for failure to fulfill its statutory duty as a