Brotherhood of Railroad Trainmen v. Atlantic Coast Line Railroad Company ( 1966 )

TUTTLE, Chief Judge:

The appellant-Brotherhood and the Florida East Coast Railroad (hereinafter, “FEC”) have been involved in a prolonged labor controversy, more fully described by this court at 336 F.2d 172 (see also 348 F.2d 682), centering around the company’s attempt, in 1963, to institute certain changes in the collective bargaining agreement. While this court held that changes reasonably necessary to enable FEC to continue to operate could be made, the railroad, at the same time, was prohibited from effectuating other deviations until the proper statutory procedures had been exhausted, 336 F.2d at 182; see 384 U.S. 238, 86 S.Ct. 1420, 16 L.Ed.2d 501, affrming 348 F.2d 682. For our purposes, this “exhaustion” process has been fully followed to no avail, and the parties now are relegated to self-help in attempting to resolve their differences, see Brotherhood of Locomotive Engineers v. Baltimore & Ohio R. Co., 372 U.S. 284, 291, 83 S.Ct. 691, 9 L.Ed.2d 759 (1963). This latter context provides the setting for the present litigation.

Thus, dipping into its economic arsenal, the FEC completely revised the rules, rates of pay and working conditions contained in existing collective agreements with employees in the crafts of trainmen, yardmen, conductors and hostlers, thereby implementing most of the changes which it had attempted to institute in 1963. The appellant Brotherhoods retaliated by striking the FEC on April 24,1966, and subsequently, on May 4, 1966, union members commenced peacefully picketing the premises of the Jacksonville Terminal Company (hereinafter, “Terminal Company”), in an attempt to appeal to the appellees’ employees to cease providing certain services, whatever they might be, for the FEC. These services include the following: (a) one-third of all freight interchange service performed by the Terminal Company; (b) minor repairs and maintenance on FEC cars and locomotives; (c) track maintenance, signaling and switching services; plus (d) whatever additional service may be contemplated in the definition of “car service” found in 49 U.S.C. Section 1(10). Since the relationship of the Terminal Company to the disputants bears substantially upon this case, it must be described before we proceed to the merits.

The appellee-Terminal Company is a Florida corporation, the stock of which is owned in equal shares by the Atlantic Coast Line (hereinafter, “ACL”), Seaboard Air Lines (hereinafter, “SAL”), FEC and Southern Railroads. It owns and operates a rail terminal, rail yards, interchange facilities and the only passenger station located in Duval County, Florida, and provides passenger, freight and mail service for the state of Florida by furnishing connecting services to the above four railroads, as well as to the Georgia Southern and Florida Railway. The Terminal Company has its own officers and employees, who work under separate collective bargaining agreements negotiated between it and the respective unions which' represent its employees. However, despite the legal separateness of the Terminal Company’s entity and operation, it cannot be disputed that the facilities and services provided by the Terminal Company in fact constitute an integral part of the day-to-day operations of the FEC, which continues to operate both passenger and freight trains by means of its own striker replacement crews.

At this point, in order more fully to set out the factual stage for this case, it must be noted that the Terminal Company employees allegedly perform such work and services for the FEC pursuant to the terms of a preliminary injunction entered by the lower court on January 30, 1963, in case No. 63-16-Civil J, Florida East Coast R. Co. v. Jacksonville Terminal Co. et al. This latter injunction was obtained by the FEC in order to assure that its operations would not be disrupted by the threatened work stoppage by Terminal Company employees, in response to the threatened picketing of the Terminal Company’s premises by striking FEC employees. The asserted bases for the issuance of said injunction were (a) defendants’ violation of FEC’s rights under an “Operating and Guaranty Agreement” between FEC, Terminal Company, ACL, SAL, Southern and Georgia Southern and Florida, and (b) defendants’ refusal to perform duties owed FEC under the Interstate Commerce Act. Although the lower court’s order specifically purported to bind the employees of both the defendant Terminal Company and the Railroad defendants, the court denied an application by the union representatives of said employees to intervene in an attempt to dissolve this injunction. The preliminary injunction issued in said Case No. 63-16 remains in effect at this time. It was not appealed, since the brotherhoods were not permitted to intervene, and thus there was no aggrieved party. The plaintiffs-appellees in the instant case contend that if this court stays the injunction entered below, they will be forced, through no fault of their own, to violate the outstanding injunction entered in Case No. 63-16.

Appellants’ picketing of appellees' premises can be described as peaceful and effective. The picketing was not limited to the gate allegedly “designated” for entrance and exit of FEC employees; rather, it covered substantially the entire Terminal Company premises, as well as other contiguous sites in Duval County which were under the sole control and operation of the ACL and SAL. As a result of the picketing, hundreds of appel-lees’ employees refused to work. However, the temporary restraining order entered by the lower court in this action caused the pickets to be removed approximately thirteen hours after the time of their commencement.

The specific purpose of the appellants’ picketing in this case is highlighted by the testimony of Mr. Raymond C. Moore, Deputy President, Brotherhood of Railroad Trainmen, given at the Preliminary Injunction hearing, to the effect that if the Terminal Company “cease to provide services * * * for the FEC and cease to handle movement of FEC trains on its property,” the pickets would be removed.

Attempting to translate the factual description of appellant’s activities into labor jargon, for purposes of legal analysis, this was an attempt, through peaceful picketing, to elicit a secondary boycott of the FEC by the appellee-com-panies, which depended for its success upon the aid of appellees’ employees in refusing to cross appellants’ picket lines [Perhaps appellants’ activity could be more simply described as an attempt to elicit a “secondary labor boycott” on the part of appellees’ employees.].

Appellants maintain that the provisions of the Norris-LaGuardia Act, 29 U.S.C. Section 101 et seq. deprive the district court of jurisdiction to enjoin the picketing here involved. The District Court, without elaborating, held that the Norris-LaGuardia prohibition was “not applicable to the instant proceedings * * * ” and enjoined the picketing, presumably upon the basis that it unlawfully interfered with legal obligations which the appellees owed the FEC by virtue of (a) the Operating and Guaranty Agreement; (b) the Interstate Commerce Act; and (c) the injunction previously entered in Case No. 63-16.

The applicable sections of Norris-La-Guardia provide as follows:

Section 4 (29 U.S.C. Section 104):

“No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:

(a) Ceasing or refusing to perform any work or to remain in any relation of employment;

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(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;

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(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified.”

Section 13 (29 U.S.C. Section 113):

When used in this chapter, and for the purposes of this chapter—

(a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employees or associations of employees and one or more employees or association of employees; or when the case involves any conflicting or competing interests in a “labor dispute” (as defined in this section) of “persons participating or interested” therein (as defined in this section).

(b) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it, and if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association composed in whole or in part of employers or employees engaged in such industry, trade, craft, or occupation.

(c) The term “labor dispute” includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.

(d) The term “court of the United States” means any court of the United States whose jurisdiction has been or may be conferred or defined or limited by Act of Congress, including the courts of the District of Columbia. Mar. 23, 1932, c. 90, § 13, 47 Stat. 73.”

In light of the history underlying the passage of this Act¹ especially the unions’ prior unsuccessful attempt, in Sections 6 and 20 of the Clayton Act (38 Stat. 731 and 738), to remove the federal courts from the injunction granting business in a similarly described context,² we are not surprised to find a paucity of decisions dealing directly with the question of whether so-called “secondary boycott” activity of employees and unions may be within the protection of NorrisLaGuardia. Like Justice Frankfurter, reputedly the author of the Act, we would have assumed that the jurisdictional limitations of Norris-LaGuardia apply to secondary boycotts, see Bakery Sales Drivers Union v. Wagshal, 333 U.S. 437, 442, 444, 68 S.Ct. 630, 92 L.Ed. 792 (1948); Amalgamated Ass’n of Street, Electric Ry. & Motor Coach Employees v. Dixie Motor Coach Corp., 170 F.2d 902 (8 Cir., 1948). However, since there appears to be no authoritative Supreme Court holding to this effect and since the contrary proposition was so forcefully argued by appellees, we proceed to examine the merits of this question. Before passing, it should be emphasized that we here deal only with the enjoin-ability of appellants’ activity and not with, its legality for any other purpose.³

At first blush, giving the terms of the Act their literal meaning,⁴ this appears to be a “case involving or growing out of a labor dispute” (Section 4, 29 U.S.C.A. Section 104), since it “involves persons who are engaged in the same industry, trade, craft, or occupation” (Section 13, 29 U.S.C.A. Section 113). Accordingly, a literal reading of the Act would prevent any federal court from issuing an injunction “to prohibit any person or persons participating or interested in such dispute * * * from * * * giving publicity to the existence of, or the facts involved in, any labor dispute * * * by advertising * * * patrolling, or by an other method not involving fraud or violence” (Section 4, 29 U.S.C.A. Section 104). The surface appeal of this literal construction of the Act is reinforced by the view that in such a common industry context the responses of employees of the secondary employer are not totally sympathetic, but rather, are motivated partially by the self-interest of the responding employees. Such self interest may be said to lie in their hope that in helping to further the bargaining position of their “brothers,” they are, at the same time, strengthening their own future position.⁵

On the facts here, however, the court is not forced to rely upon this literal construction of the Act in holding that Norris-LaGuardia is applicable, since the union’s position finds even stronger support when measured according to traditional economic self-interest justification concepts, which we hold are applicable to determine the intended scope of Norris-LaGuardia protection. Although there does not appear to be direct Supreme Court authority for this latter proposition, we find it to be implicit in Justice Brandéis’ dissent in the Duplex case (see note 2, supra) together with the subsequent passage of NorrisLaGuardia.⁶

As we see it, this “economic self-interest” test, by definition, must be primarily a factual inquiry. In this case the picketing union, allegedly attempting to limit the scope of its appeal to its dispute wtih FEC,⁷ had an obvious interest in putting a stop to the Terminal Company’s performing services related to the normal, day-to-day operation of FEC trains — operating with striker replacement crews.⁸ A similar interest is present in any case in which a labor group attempts to bring secondary pressure upon the employer with whom its primary dispute exists by means of exerting primary pressure upon a secondary employer, who has aligned himself with the primary employer in some substantial manner — here by providing certain essential services and facilities to the primary employer, FEC.⁹

Turning next to a further examination of the economic interests of the responding employees of the secondary employer-appellees, it should be emphasized that their interests go beyond the “common industrial interest” discussed above. It can be stated unequivocally that Seaboard and FEC are in direct competition for passenger and freight traffic south of West Palm Beach. As far as the ACL and FEC are concerned, the competition, although less direct, cannot be said to be non-existent, especially between Jacksonville and a line drawn from Orlando to the Atlantic Ocean. The significance of this competition lies in the fact that the FEC, by changing work rules¹⁰ and lowering wages, presents a direct threat to the job security of the employees of SAL and ACL.¹¹ In other words, by operating under such lower than union standards of employment, the FEC enjoys a competitive advantage, which may enable it to increase its share of traffic, vis a vis, ACL and SAL, and, consequently, the latter two railroads could be forced to either (a) lower their standards or (b) lay off a sufficient number of employees to compensate for their reduced traffic share. Accordingly, it is improper to regard the responses of ACL and SAL employees as merely sympathetic.

Thus, it is clear that the economic self-interest test is met here from not one, but two, viewpoints: (a) the economic interests of the defendant-picketers themselves, and (b) the economic interests of the responding employees of the secondary employers, without whose aid the picketing would be ineffectual. Accordingly, the district court was prohibited from issuing the injunction by N orris-LaGuardia.

One final point: Appellees argue that under the circumstances of this case Norris-LaGuardia should be “accommodated” to the Interstate Commerce Act and the Railway Labor Act, so that (a) appellees’ duty to the public under the former act can be carried out and (b) the national railway labor policy expressed in the latter, given effect. We deem the argument based upon the Railway Labor Act to be without substance. Regarding the argument based upon the Interstate Commerce Act, the short answer is found in Order of Railroad Telegraphers v. Chicago & North Western Ry., 362 U.S. 330, 339, 80 S.Ct. 761, 4 L.Ed.2d 774 at note 15, where the Court cited “cases to show that unlawfulness under nonlabor legislation did not remove the restrictions of the Norris-LaGuardia Act upon the jurisdiction of federal courts.”¹²

Since the district court was without jurisdiction to enjoin the picketing involved in this case, the judgment is reversed, and the case is remanded to the district court with directions to vacate the injunction.

1 . An excellent discussion of the events leading up to and culminating in the passage of Norris-LaGuardia is contained in Gregory, Labor and the Law, 158-199 (2d Rev. ed. 1961).

2 . This prior effort was rendered abortive by the Supreme Court in Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349 (1921), which involved an attempt by an international union to unionize a non-union printing press company. Although the non-union factory in question was located in Michigan, the union exerted pressure, not directly upon the factory, but rather, upon its customers and their employees. The means of exerting said pressure may be described legally as a “secondary labor boycott” — members of the union refusing to work on the company’s presses where they were installed or to work for anyone who used them — to be distinguished from the instant case, where the pressure upon the “secondary employees” was initiated by striking employees of the “primary employer,” EEC. The Supreme Court held that the anti-injunction provisions of § 20 of the Clayton Act could be invoked only by employees “who are proximately and substantially concerned as parties to an actual dispute respecting the terms or conditions of their oton employment * * * ” (Emphasis added) and only in the context of “particular industrial controversies not a general class war.” 254 U.S. at 472, 41 S.Ct. at 178.

In a strong dissent, Justice Brandéis (joined by Justices Holmes and Olarke) concluded that in the Clayton Act Congress had declared “the right of industrial combatants to push their struggle to the limits of the justification of self-interest,” 254 U.S. 488, 41 S.Ct. at 184 and he articulated the interest of a union in the terms and conditions of employment prevailing in non-union plants in the same industry, according to the better-reasoned common law decisions, id. at 480-483, 41 S.Ct. at 181-182.

3 . In Norris-LaGuardia, Congress did not, as it had done in the Clayton Act, make the conduct listed lawful for all purposes. The most logical inference from this fact is that in Norris-LaGuardia Congress intended only to remedy abuses of judicial equity power relating to injunctions, allowing the law relating to the “legality” of the described activity for other purposes to develop in the courts.

4 . Of course, this court is not required to accept this literal construction, under the “familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of the makers.” NLRB v. Eruit & Vegetable Packers, etc., 377 U.S. 58, 72, 84 S.Ct. 1063, 1071, 12 L.Ed.2d 129 (1964) (quoting from Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 36 L.Ed. 226).

5 . Of course, this same argument also would apply to the situation where the only link between the picketing union and the responding employees is the “brotherhood” they share as members of the organized labor movement, whenever the ultimate result would be to strengthen unionism as a whole. Without attempting to decide exactly where Oongress intended to draw the line of Norris-LaGuardia protection, we nevertheless note that the interest shared by organized labor is much more remote than the common industrial interest shared by the employees in this case. Nor does the interest shared by organized labor come within a literal reading of the Act, as does the common industrial interest.

6 . Implicit support for this holding also may be found in New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 562-563 (1938). (Norris-LaGuardia passed to overcome qualifying effects of Duplex decision). And cf. Carpenters & Joiners Union v. Ritter’s Cafe, 315 U.S. 722, 724-728, 62 S.Ct. 807, 86 L.Ed. 1143 (1942); United States v. Hutcheson, 312 U.S. 219, 231-236, 61 S.Ct. 463, 85 L.Ed. 788 (1941). These latter two cases support the proposition that the proper framework for a Norris-LaGuardia “labor dispute” falls substantially short of an all-out class war, unrelated to fairly direct economic interests of the disputants.

In the words of Professor Charles O. Gregory:

“It is as if Congress had said in [the Norris-LaGuardia] act:

‘This you may do, using the techniques we have suggested, as long as you can show that your union economic program, conceived as you and not anyone else sees it, is affected by the existing employment conditions in the units of the industry with which you are concerned. We have instructed the judges to withhold the use of the injunction against your self-help coercive activities directed along these lines. From now on it is up to you union people to promote your own economic interests, as you see them, within the area of conflict we have defined.’ ”

Gregory, Labor and the Law, 192 (2d Rev. ed. 1961).

7 . The picket signs bore the following:

“Fellow Railroad Men

Do Not Cross or Assist FEC

B of R T' on Legal Strike Against FEC

Please Make Common Cause With Us

In Major Dispute Against FEC”

8 . Compare United Steelworkers v. NLRB, 376 U.S. 492, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964).

9 . Compare NLRB v. Fruit & Vegetable Packers, etc., 377 U.S. 58 (1964) (substantial alignment present) with Carpenter’s & Joiners Union v. Ritter’s Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143 (1942) (no alignment at all).

10 . The changes here severely reduced the number of employees needed for daily operations, by eliminating what the FEC considered to be unnecessary employees.

11 . In this limited sense, at least, the case is substantially similar to, and probably controlled by Marine Cooks & Stewards v. Panama Steamship Co., 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 1151 (1960).

12 . See also Brotherhood of Locomotive Firemen and Enginemen v. Florida East Coast Ry., 346 F.2d 673, 676-677 (5 Cir., 1965).