East St. Louis 100 v. Bellon Wrecking ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1236
EAST ST. LOUIS LABORERS’ LOCAL 100,
Plaintiff-Appellee,
v.
BELLON WRECKING & SALVAGE COMPANY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 C 23—G. Patrick Murphy, Chief Judge.
____________
ARGUED APRIL 15, 2005—DECIDED JULY 6, 2005
____________
Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
FLAUM, Chief Judge. A collective bargaining agreement
(“CBA”) obligates defendant Bellon Wrecking & Salvage
Company to hire members of plaintiff East St. Louis Labor-
ers’ Local 100 to do certain highway construction work.
Bellon and the union amended the agreement orally to
permit the employer some latitude to use labor from outside
Local 100 on a project in southwestern Illinois. The parties
disagree about the extent of the oral amendments. When
work slowed, Bellon laid off a member of Local 100 instead
2 No. 05-1236
of a laborer from a neighboring union. Local 100 believed
this violated the agreement as amended, sued for breach of
the CBA, and sought a preliminary injunction. The district
court granted the injunction, and Bellon appeals. Because
the union has not shown that it will suffer irreparable harm
absent the injunction, we reverse.
I. Background
In June 2004, Bellon was hired to remove the road deck
from the MacArthur bridge, which spans the Mississippi
River from St. Louis, Missouri to East St. Louis, Illinois.
The project aimed at ensuring the bridge’s structural integ-
rity by removing excess weight from the bridge. The work
began on the Missouri side of the river and moved east. At
the time, Bellon employed laborers from a Missouri union,
but had not signed a CBA with Local 100, whose jurisdic-
tion covers the Illinois side of the river. When Local 100
learned of the work on the bridge, it requested that Bellon
hire its members. Bellon refused, and the union picketed in
protest. The picket ended after a week, and Bellon con-
tinued to use laborers from the Missouri union.
For reasons that are not clear from the record, in October
2004, Bellon signed on to a CBA already in effect among
Local 100, the Southern Illinois Builders Association, the
Southern Illinois Contractors Association, and other local
employers. The agreement extends through July 31, 2006,
and obligates signatories to use Local 100 as the exclusive
source of referrals for highway construction laborers in East
St. Louis and specified neighboring areas. The agreement
provides that the union will maintain a list of eligible
laborers; participating employers bind themselves to hire
from the list.
The CBA sets forth a detailed schedule of wage rates for
each laborer hired by an employer. The wage rates vary
according to the type of job, the skills possessed by the
No. 05-1236 3
laborer, and the number of hours worked within a day or
week. The agreement also obligates employers to contribute
to a health and welfare fund on behalf of each laborer they
hire.
Bellon and Local 100 acknowledge that they amended the
agreement orally, although they disagree about the nature
and extent of the changes.1 Bellon contends that the union
authorized it to employ John Fletcher, a laborer from a
Missouri union, as its “lead person” on the MacArthur
bridge. Fletcher had been working on the project from the
outset, and Bellon valued his experience and loyalty. Ac-
cording to Bellon’s depiction of the amendments, it would
hire the second and third laborers from Local 100 as work
on the bridge increased. Bellon would draw the fourth
laborer from outside the union, and thereafter it would
alternate between hiring one member from Local 100 and
one laborer from outside that union. Bellon asserts that the
parties designed this arrangement to maintain a 50-50
staffing ratio between members of Local 100 and other
laborers.
Local 100 contends that it agreed to allow Bellon to use
Fletcher’s services, but only after the employer had hired
two of the union’s members. The order of hiring takes on
importance because both parties agree that, in the event of
a layoff, the last-hired worker would lose his job first.
Moreover, the union asserts that the parties never contem-
plated a 50-50 staffing ratio, and that all other laborers
would be hired from Local 100.
During October and the beginning of November 2004, the
work on the bridge called for three laborers. Bellon hired
1
We do not comment on whether the oral amendments were
effective. For the purposes of this appeal, moreover, we assume
without deciding that the union’s account of the oral amendments
is accurate, and that Bellon breached the agreement as amended.
4 No. 05-1236
Fletcher and two members of Local 100: Sean Abernathy
and Leroy Bailey. Heavy rains on November 11, 2004
destabilized the footing of a crane that the three men had
been using to demolish the road bed. Without the crane,
Bellon could utilize only two laborers. It told Abernathy not
to report to work the next day. Nevertheless, Abernathy
showed up on November 12 and argued that Fletcher, not
he, should be laid off. Bellon disagreed, asserting that
Abernathy held the least tenure of the three workers, and
therefore should be laid off first. Both Abernathy and Bailey
left the job site in protest, returning some time later to
picket. Bellon hired replacement workers from outside Local
100 to work on the bridge. As of oral argument before this
Court, the work on the bridge continued.
On January 13, 2005, the union filed suit for breach of the
CBA in the Circuit Court of St. Clair County, Illinois. The
state court issued a temporary restraining order directing
that Bellon adhere to the CBA.
Bellon removed the case to federal court under § 301 of
the Labor Management Relations Act (“LMRA”), 29 U.S.C.
§ 185, and § 502 of the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1132. On January 25,
2005, the district court held a hearing on Bellon’s motion to
dissolve the temporary restraining order and the union’s
motion to convert the restraining order into a preliminary
injunction. After taking testimony from both parties, the
district court found the union’s witnesses credible, rejected
Bellon’s version of events, and held that Local 100 had
established a likelihood of success on the merits. It held,
moreover, that the union would suffer irreparable harm
absent an injunction, that Bellon would not be harmed by
an injunction, and therefore that the balance of harms
tipped in the union’s favor. Accordingly, it issued a prelimi-
nary injunction mandating that Bellon comply with the
union’s account of the amended CBA pending a trial on the
merits. Bellon appeals the order issuing the preliminary
injunction.
No. 05-1236 5
II. Discussion
The Norris-LaGuardia Act cabins a district court’s power
to issue injunctive relief in cases “involving or growing out
of a labor dispute.” 29 U.S.C. § 101. As explained below, a
court enjoys far less leeway to issue a preliminary injunc-
tion in a case governed by the Act than it does under
traditional equitable principles. Bellon argues that the
Norris-LaGuardia Act controls this case, and that judging
by the Act’s strict standards, the district court abused its
discretion by issuing the injunction. The union contends
that the Act does not apply here for two reasons: first, it
argues that the statute does not protect employers; second,
it contends that the facts of this case fall within an excep-
tion to the Act recognized by Boys Markets, Inc. v. Retail
Clerks Union, Local 770, 398 U.S. 235 (1970), and its
progeny. The union urges us instead to apply traditional
equitable principles, under which, it contends, the injunc-
tion should stand. We need not decide which framework
governs this case, however. Both tests require the movant to
show, at a minimum, that it will suffer irreparable harm
absent the injunction. Because the union has not made this
threshold showing, it is not entitled to a preliminary
injunction under either analysis.
A. Traditional Equitable Principles
Our traditional approach to preliminary injunctions re-
quires that the party seeking the injunction demonstrate,
among other things, “that it has ‘no adequate remedy at
law’ and will suffer ‘irreparable harm’ if preliminary relief
is denied.” Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6,
11 (7th Cir. 1992). If the moving party cannot make this
showing, “a court’s inquiry is over and the injunction must
be denied.” Id. We review the district court’s decision to is-
sue a preliminary injunction for abuse of discretion. Id. at
6 No. 05-1236
12. A court abuses its discretion when it commits an error
of law or makes a factual finding that is clearly erroneous.
Id. at 13.
The union offers several arguments as to why it will
suffer irreparable harm in the absence of a preliminary
injunction. First, it contends that Bellon has violated the
CBA repeatedly, and would continue to do so but for the
injunction. Even if this is true, it establishes only that
Bellon’s actions may harm the union; it does not prove that
the harm will be irreparable. An injury is irreparable for
purposes of granting preliminary injunctive relief only if it
cannot be remedied through a monetary award after trial.
See Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th
Cir. 1997). Thus, even repeated and ongoing violations of a
CBA do not warrant a preliminary injunction if each
violation may be remedied by a monetary award.
Relying on Duct-O-Wire Co. v. U.S. Crane, Inc., 31 F.3d
506 (7th Cir. 1994), the union asserts that an ongoing
violation amounts to irreparable harm. Plaintiff overreads
Duct-O-Wire. In that case, the defendant subscribed to a
telephone number that it knew the plaintiff previously had
used for its business. When customers called the number
looking to buy the plaintiff’s products, the defendant led
them to believe that it was the plaintiff’s agent. This
enabled the defendant to capture the plaintiff’s sales and
deprived the plaintiff of “the opportunity to maintain and
develop relationships with existing and potential custom-
ers.” Id. at 509-10. Because the value of the diverted sales
and lost opportunities would have been impossible to track,
the plaintiff would have suffered irreparable harm without
an injunction. The injunction was warranted not because
the harm was ongoing, but because it was irreparable.
Here, Local 100 does not explain why ongoing violations of
the CBA could not be atoned for with money.
Second, plaintiff argues that its members will lose con-
fidence in the union if, pending trial, Bellon is permitted to
No. 05-1236 7
flout the parties’ agreement with apparent impunity.
Plaintiff contends that this loss of confidence cannot be
measured in or remedied with dollars, and can be prevented
only through an immediate injunction.
Not every conceivable injury entitles a litigant to a pre-
liminary injunction. For example, speculative injuries do
not justify this extraordinary remedy. See, e.g., Tom Doherty
Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 37 (2d Cir.
1995); Pub. Serv. Co. of N.H. v. Town of W. Newbury, 835
F.2d 380, 383 (1st Cir. 1987); Goldie’s Bookstore, Inc. v.
Superior Court, 739 F.2d 466, 472 (9th Cir. 1984). Cf. Am.
Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 595
(7th Cir. 1986). The union’s concern about lost confidence
falls into that category. Given the frequency of litigation
between unions and employers, Local 100’s members likely
understand that lawsuits take time to resolve disputes, and
that the absence of an immediate victory does not imply
defeat. The union is free to explain the difficulties of
litigation to its members if they ask why more is not being
done sooner. And if some members’ confidence is shaken,
the chance that vindication of the union at trial would not
restore that confidence is too speculative to justify a pre-
liminary injunction.
Furthermore, accepting the plaintiff’s argument would
open the door to preliminary injunctive relief in a substan-
tial majority of cases. Nearly every litigant will prefer an
immediate injunction to a monetary award sometime in the
future. Many will be able to construct an argument that a
non-party with an interest in its success will lose confidence
in its ability to control the dispute absent an immediate,
drastic remedy. But the unease that often accompanies
litigation is one of the ordinary burdens of our legal system
that, like litigation expense, Renegotiation Bd. v.
Bannercroft Clothing Co., Inc., 415 U.S. 1, 24 (1974), does
not qualify as the type of injury warranting a preliminary
injunction.
8 No. 05-1236
Third, the union fears that Bellon may complete its work
on the MacArthur bridge before the district court can hold
a trial. If so, plaintiff’s members will never again work on
the bridge without the benefit of an injunction. The union
characterizes this as a permanent job loss which, it asserts,
amounts to irreparable harm.
A permanent loss of employment, standing alone, does not
equate to irreparable harm. See, e.g., Shegog v. Bd. of Educ.
of City of Chi., 194 F.3d 836, 839 (7th Cir. 1999) (affirming
denial of preliminary injunction where laid off teachers
failed to show irreparable harm); Hetreed v. Allstate Ins.
Co., 135 F.3d 1155, 1158 (7th Cir. 1998) (fired employee not
entitled to preliminary injunction because she failed to
show irreparable injury, among other things); E.E.O.C. v.
City of Janesville, 630 F.2d 1254, 1259 (7th Cir. 1980)
(district court abused its discretion by reinstating fired
police chief pending trial on the merits given the lack of
irreparable harm). Rather, as in other cases involving
preliminary injunctive relief, we ask whether the termina-
tion will harm the plaintiff in a way that cannot be reme-
died through money. See id. (“Reinstatement pending a trial
on the merits . . . is an extraordinary remedy permissible
only upon a substantial showing of irreparable injury.”).
Our opinion in Local Lodge No. 1266, International
Association of Machinists & Aerospace Workers, AFL-CIO v.
Panoramic Corp., 668 F.2d 276 (7th Cir. 1981), upon which
plaintiff relies, is not to the contrary. Although we stated in
Panoramic that damages would not adequately remedy a
permanent loss of jobs, id. at 286, that language must be
read in context. Panoramic was threatening to sell a
manufacturing division that employed 113 workers to a
group of investors who intended to fire all of the workers
once the sale closed. We affirmed the district court’s grant
of a preliminary injunction preventing the sale until an ar-
bitrator could determine whether the transaction violated
a CBA between the workers’ union and Panoramic. Our
No. 05-1236 9
conclusion that the union would suffer irreparable harm
was driven in large part by the practical impossibility of
fashioning a damage remedy under these circumstances.
The arbitrator would have been required to calculate the
damages suffered by each of 113 workers involved in a
complex, interrelated organization. But for the sale, the
division would have continued in operation as a going con-
cern, employing these workers for an unknowable length of
time. This case does not present similar problems. The work
on the MacArthur bridge is a discrete project that has
created two jobs for the union’s laborers. Although we do
not know precisely how long it will take, the length of the
project will be readily apparent after the fact. That the
laborers may lose their jobs on the bridge permanently does
not imply that the harm could not be remedied by a mone-
tary award.
Fourth, the union contends that Bellon may breach the
CBA in a way that will trigger some lost wages that cannot
be calculated. Plaintiff concedes that any wages lost be-
cause of Bellon’s refusal to employ its members on the
MacArthur bridge may be calculated with ease. The CBA
sets forth a detailed schedule of hourly wages broken down
by job type. The union could learn through discovery the
number of laborers, type of work, and person-hours de-
manded by the bridge project, and apply the relevant wage
rate to determine lost wages. The union asserts, however,
that it cannot calculate the wages that may be lost if Bellon
takes on additional construction projects within the CBA’s
territorial jurisdiction but refuses to hire Local 100’s
laborers. Because we cannot anticipate the type of work or
number of person-hours those projects will require, plaintiff
alleges that it is impossible to calculate the related dam-
ages.
We disagree. A plaintiff may suffer irreparable harm if
the nature of the loss makes monetary damages difficult to
calculate. Somerset House, Inc. v. Turnock, 900 F.2d 1012,
10 No. 05-1236
1018 (7th Cir. 1990). The harm plaintiff points to, however,
eludes calculation because it is speculative, not because, if
it occurred, it could not be quantified. As stated above, a
plaintiff cannot obtain a preliminary injunction by speculat-
ing about hypothetical future injuries. Tom Doherty Assocs.,
60 F.3d at 37. Thus, the union’s argument that we cannot
know whether or how Bellon might breach the agreement
in the future merely reveals that an injunction is not
warranted. If the union’s predictions come true, a jury could
apply the same straightforward method of calculating lost
wages from the future projects as it would with the work on
the MacArthur bridge.2
Fifth, the union asserts that injunctive relief is necessary
because it will avoid logistical problems that would hamper
a suit for money damages. It points out that the CBA
establishes a referral system, rather than identifying
specific members of the union to work on particular pro-
jects. The union maintains a list of eligible employees from
which it makes its referrals, and signatories agree to hire
members from the top of the list. When the work on the
MacArthur bridge began, Bellon hired Sean Abernathy and
Leroy Bailey because they happened to be on the top of this
list. If Bellon is permitted to lay off Abernathy and Bailey,
the two will be forced to look for other work. If they find
jobs (thereby mitigating their damages for lost wages),
plaintiff submits it will be impossible to determine which
2
The union cites Sheet Metal Workers’ International Association
Local 19 v. Herre Bros., Inc., 201 F.3d 231, 250 (3d Cir. 1999), to
support its argument that a preliminary injunction should issue
when the plaintiff cannot predict how the defendant will breach
a contract in the future. Herre Bros. addressed whether a district
court had abused its discretion by ordering specific performance
after a judgment had been entered on the merits. It did not dis-
cuss whether a preliminary injunction would have been appropri-
ate, and therefore it is irrelevant to this appeal.
No. 05-1236 11
union member was harmed by Bellon’s breach of the CBA.
According to the union, the answers could include the next-
listed unemployed member on the day the work began, any
member who sat idle over the course of the project, or a
combination of unemployed members. Plaintiff contends
that a preliminary injunction would avoid this conundrum.
This argument proceeds from the flawed assumption that
one measures the adequacy of a legal remedy by a court’s
ability to impose it prior to any discovery. The test of a
monetary award, however, is whether it fairly compensates
a plaintiff after trial, Graham, 130 F.3d at 296; Anderson v.
U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 478 (7th Cir.
2001), and therefore after discovery has been completed.
Before discovery has begun, uncertainty will often exist
about an issue of fact—like causation—bearing on damages.
A rule that permitted injunctive relief solely because of this
uncertainty would give litigants a perverse incentive to
avoid doing their homework.
An injunction might be warranted if the nature of the
case caused us to doubt the litigants’ ability, though pur-
suing discovery diligently and in good faith, to prove some
fact even if it were true. The union has not shown, however,
that the facts of this case are unproveable. Ordinary dis-
covery will reveal the number of laborers called for by the
MacArthur bridge project, their qualifications, and the days
and hours they worked. This data may be compared to the
union’s referral lists to determine which of plaintiff’s
members, if any, were qualified and available to work on
the bridge and failed to find other employment. Depending
upon the details of the union’s referral practice, and ap-
plying ordinary principles of causation, it is likely that the
parties will be able to identify which member or members
were harmed by Bellon’s breach of the CBA. We sketch this
approach neither to identify which member was harmed nor
to mandate a comprehensive plan for discovery. Rather, we
12 No. 05-1236
present the outline to demonstrate the parties’ ability to
resolve the issue by applying ordinary legal principles and
discovery tools.
Sixth, the union contends that Bellon’s breach of the CBA
may cause plaintiff’s members to lose fringe benefits. The
CBA requires that employers contribute a fixed amount per
hour worked by a member into a health and welfare fund on
that member’s behalf. When they are not working, members
do not earn contributions towards these funds, and their
health care coverage may lapse. The union asserts that a
member could lose coverage because of Bellon’s actions, fall
ill, and be forced to pay his or her health care costs out of
pocket.
The union has not shown that this is likely. It has not
informed us of the minimum number of hours a member
must work to be eligible for coverage, nor has it explained
why the handful of laborers who might have worked on the
MacArthur bridge will be unable to reach that threshold by
working for other signatories to the CBA. Assuming that it
might occur, a loss of fringe benefits does not amount to
irreparable harm if the district court holds the power, fol-
lowing a judgment on the merits, to order the losing party
to pay missed contributions. See Adams v. City of Chicago,
135 F.3d 1150, 1154-55 (7th Cir. 1998). Section 301 of the
LMRA grants district courts that authority. See 29 U.S.C.
§ 185; Galindo v. Stoody Co., 793 F.2d 1502, 1516 (9th Cir.
1986). Cf. Contempo Design, Inc. v. Chi. & N.E. Ill. Dist.
Council of Carpenters, 226 F.3d 535, 553-55 (7th Cir. 2000).
Moreover, plaintiff has not explained why its members
could not purchase individual health insurance to hedge
against a catastrophic loss. Although the premiums for
individual insurance are likely higher than contributions to
the health and welfare fund, a monetary award could
include the difference as incidental damages.
No. 05-1236 13
In sum, the union has failed, as a matter of law, to dem-
onstrate that it will suffer irreparable harm in the absence
of a preliminary injunction.
B. Norris-LaGuardia Act
If the Norris-LaGuardia Act applies to this case, the
union fares no better. The Act states that “[n]o court of the
United States . . . shall have jurisdiction to issue any
restraining order or temporary or permanent injunction in
a case involving or growing out of a labor dispute, except in
strict conformity with the provisions of [the Act].” 29 U.S.C.
§ 101. Subject to a categorical ban on injunctions not at
issue here,3 § 7 of the Act permits a court to issue an
injunction only if it finds:
(a) That unlawful acts have been threatened and will be
committed unless restrained or have been committed
and will be continued unless restrained . . . ;
(b) That substantial and irreparable injury to complain-
ant’s property will follow;
(c) That as to each item of relief granted greater injury
will be inflicted upon complainant by the denial of relief
than will be inflicted upon defendants by the granting
of relief;
(d) That complainant has no adequate remedy at law;
and
(e) That the public officers charged with the duty to
protect complainant’s property are unable or unwilling
to furnish adequate protection.
29 U.S.C. § 107. As under our traditional analysis, we
review preliminary injunctions in cases governed by the Act
3
See 29 U.S.C. § 104.
14 No. 05-1236
for abuse of discretion, deferring to a district court’s factual
findings unless clearly erroneous, but reviewing its legal
conclusions de novo. See United Air Lines, Inc. v. Int’l Assoc.
of Machinists & Aerospace Workers, AFL-CIO, 243 F.3d 349,
360-61 (7th Cir. 2001).
The union has not presented any evidence that Bellon has
threatened or committed “unlawful acts” as contemplated
by § 7(a) of the Act. See Marine Transp. Lines, Inc. v. Int’l
Org. of Masters, Mates & Pilots, 770 F.2d 1526, 1530 (11th
Cir. 1985) (suggesting that “unlawful acts” may be limited
to things akin to “violence, intimidation, threats, vandal-
ism, breaches of the peace and criminal acts”); see also
Wilson & Co. v. Birl, 105 F.2d 948, 952 (3d Cir. 1939) (con-
struing “unlawful acts” narrowly). Nor has plaintiff alleged
that public officials are unwilling or unable to protect it
from these acts, as required by § 7(e). Neither party ad-
dressed these points, however, and we do not rest our
conclusion on them.
Rather, our holding that the union has not shown irrep-
arable harm under traditional equitable principles also
dooms plaintiff’s chances for purposes of the Norris-
LaGuardia Act. Given the Act’s goal of limiting injunctive
relief in labor disputes, see AT&T Broadband, LLC v. Int’l
Bhd. of Elec. Workers, 317 F.3d 758, 760-61 (7th Cir. 2003),
we have no reason to suspect that § 7(b)’s requirement of
“substantial and irreparable injury” is less exacting than
equity’s demand of “irreparable harm.”4 Nor does plaintiff
argue that these standards differ. Accordingly, the union
has not demonstrated that it will suffer substantial and
irreparable injury, and is not entitled to an injunction
under the Act. We do not resolve whether it has met the
Act’s other requirements.
4
We do not consider whether § 7(b) might demand a stronger
showing.
No. 05-1236 15
III. Conclusion
Whether this case is governed by traditional equitable
principles or the Norris-LaGuardia Act, the union may ob-
tain a preliminary injunction only if it shows that it will
suffer irreparable harm absent the relief. Because it failed
to make that showing as a matter of law, the district court
abused its discretion by granting the injunction. Accord-
ingly, we REVERSE and REMAND with the instruction that
the district court dissolve the preliminary injunction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-6-05