Brotherhood of R. Train. v. Atlantic Coast Line R. Co.

Citation362 F.2d 649
Decision Date15 June 1966
Docket NumberNo. 23659.,23659.
PartiesBROTHERHOOD OF RAILROAD TRAINMEN et al., Appellants, v. ATLANTIC COAST LINE RAILROAD COMPANY et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Allan Milledge, Neal Rutledge, Rutledge & Milledge, Miami, Fla., for appellants.

C. D. Towers, Jr., W. E. Grissett, Jr., Adam G. Adams, II, Prime F. Osborn, Jacksonville, Fla., for appellees.

Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and CHOATE, District Judge.

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, affirming 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 appellees' 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-companies, 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-LaGuardia 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;
* * * * * *
(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;
* * * * * *
(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
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    ...this interchange and in making common cause with the striking FEC engineers is similarly present. Brotherhood of R. R. Trainmen v. Atlantic Coast Line R.R., 362 F.2d 649 (5th Cir.), aff'd, 385 U.S. 20 (87 S.Ct. 226, 17 L.Ed.2d 20) '7. The Norris-LaGuardia Act, 29 U.S.C. § 101, and the Clayt......
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