LAKEFRONT D. & RT CO. v. International Longshoremen's Ass'n, 15018.

• Decision Date: 17 August 1962
• Docket Number: No. 15018.,15018.
• Citation: 333 F.2d 549
• Parties: The LAKEFRONT DOCK AND RAILROAD TERMINAL COMPANY, Plaintiff, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, William Bradley, President, Internat'l Longshoremen's Ass'n, Local No. 158, Internat'l Longshoremen's Association, Robert P. Velliquette, President, Internat'l Longshoremen's Ass'n, International Brotherhood of Electrical Workers of America, Local No. 8, Internat'l Brotherhood of Electrical Workers of America, John W. Holden, Business Manager, Local No. 8, Internat'l Brotherhood of Electrical Workers of America, The Toledo Lakefront Dock Company, Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

333 F.2d 549 (1962)

The LAKEFRONT DOCK AND RAILROAD TERMINAL COMPANY, Plaintiff, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, William Bradley, President, Internat'l Longshoremen's Ass'n, Local No. 158, Internat'l Longshoremen's Association, Robert P. Velliquette, President, Internat'l Longshoremen's Ass'n, International Brotherhood of Electrical Workers of America, Local No. 8, Internat'l Brotherhood of Electrical Workers of America, John W. Holden, Business Manager, Local No. 8, Internat'l Brotherhood of Electrical Workers of America, The Toledo Lakefront Dock Company, Defendants.

No. 15018.

United States Court of Appeals Sixth Circuit.

August 17, 1962.

Victor G. Hanson, Detroit, Mich., Green & Green, Toledo, Ohio, for appellant — on memorandum in support of motion.

Doyle, Lewis & Warner, Toledo, Ohio, Alex L. Fricke and Grey K. Nelson, Cleveland, Ohio, for appellee — on answer brief.

Before CECIL, WEICK and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

This matter is before us on the motion of International Longshoremen's Association, one of the parties defendant, to suspend, pending hearing of its appeal, a preliminary injunction heretofore granted by the United States District Court at Toledo, Ohio. By such preliminary injunction, appellant, with others, was, in substance, enjoined from continuing a work stoppage involving the refusal of its members to work on vessels of a Canadian lake carrier, Upper Lakes Shipping, Ltd., while members of Canadian unions picketed such vessels.¹

Plaintiff, The Lakefront Dock and Railroad Terminal Company, is jointly owned and controlled by the Baltimore and Ohio and the New York Central railroads. It operates docks on Lake Erie at Oregon, Ohio. It is a lake terminal facility for the railroads mentioned and is a part of the Port of Toledo. The railroads deliver coal and other bulk materials to it for transfer into lake vessels. Ore and other materials are likewise transferred to railroad cars from lake vessels. Plaintiff is a common carrier, subject to the orders and regulations of the Interstate Commerce Commission. Its rates are charged pursuant to tariffs filed by it and other connecting rail carriers with such Commission. Plaintiff's agent, Toledo Lakefront Dock Company (a defendant, but not an appellant), is a stevedore company whose employees handle all of the loading and unloading of lake vessels at plaintiff's dock. Work done at plaintiff's dock is a part of the interstate transportation carried on by the American railroads. Plaintiff's premises occupy about 212 acres, upon which are located 65 miles of track, with a capacity for 5,800 railroad cars. These tracks terminate on three piers, two of which mount three machines for the dumping of coal from railroad cars into lake vessels and one of which mounts four machines for unloading ore from lake vessels. The handling by the New York Central and the B. & O. of freight to and from vessels operating in the Great Lakes is carried on by plaintiff's facilities.

The employees of defendant stevedore company, 195 stevedores and 22 electricians, are members of Local No. 158, International Longshoremen's Association, and Local No. 8 of International Brotherhood of Electrical Workers of America, respectively. Appellant Longshoremen's Association does not dispute plaintiff's assertion that all of the above workmen are, in their relationship with their employer, the Toledo Lakefront Dock Company (the stevedore company), governed by the Railway Labor Act (Title 45 U.S.C.A. § 151 et seq.).

The instant litigation was precipitated by the appearance at defendant's dock of pickets whose placards identified them as members of Seafarers' International Union of Canada and Marine Engineers' Benevolent Association (both apparently Canadian labor organizations). This picketing was occasioned by the arrival at plaintiff's dock of the S.S. Red Wing, a vessel of Upper Lakes Shipping, Ltd. This vessel was taking on a cargo of coal brought to the dock by the railroads for transhipment by water to Dominion Foundries and Steel, Ltd., at Hamilton, Ontario. The coal had been purchased from mines in Virginia and West Virginia. The pickets' signs read, "Locked Out — S. I. U. of Canada by S. S. Red Wing. We have no dispute with any other employer," and "S.S. Red Wing hired nonunion engineers, mates, at substandard conditions, Dist. 2, M. E. B. A., AFLCIO." Another vessel of the Upper Lakes Shipping, Ltd., the S.S. Northern Venture, was, while at plaintiff's dock, picketed with signs reading "IBU AFLCIO protests lock-out of S I U of Canada by Upper Lakes Shipping."

For a time, the stevedores worked on the S.S. Red Wing notwithstanding the presence of the Canadian pickets. Shortly, however, upon telegraphic advice from the President of International Longshoremen's Association, officers of the union's local which represented employees of the Toledo Lakefront Dock Company (stevedore company) announced that such employees would not cross the aforesaid picket lines and would refuse to serve any of the boats of Upper Lakes Shipping, Ltd. It is that conduct which was forbidden by the preliminary injunction here involved. Eight defendants were thus enjoined, including the International Longshoremen's Association, the International Brotherhood of Electrical Workers of America and their respective locals, individually named officials of such groups, and the Toledo Lakefront Dock Company. Appeal from the order granting the preliminary injunction has been taken only by International Longshoremen's Association (presumably the parent union). The notice of appeal avers that the appeal is taken as an emergency appeal pursuant to § 110 of Title 29 U.S.C.A. The matter is, however, presented to us at this time as a motion to suspend the preliminary injunction, "pending the hearing and determining of defendant's appeal." We hear it, therefore, as such motion and consider only the memoranda filed in support and in opposition thereto.

From the papers before us, it appears that the coal lading of a vessel such as the S.S. Red Wing (approximately 25,000 tons) produces about $5,000.00 in revenue to plaintiff and about $90,000.00 revenue for the railroads. On the basis of the 1961 shipping season (April through November) and commitments for 1962, it was estimated that approximately 1,000,000 tons of coal purchased at the mines will, in the 1962 season, barring any work stoppage, be transhipped from plaintiff's docks in vessels of Upper Lakes Shipping, Ltd., to the Dominion Foundries and Steel, Ltd., its consignee at Hamilton, Ontario.

Analysis of appellant's memoranda supporting its motion discloses that the following points are presented for our consideration:

(1) That suspension of the preliminary injunction will not inflict irreparable injury on plaintiff, but that its continuance will inflict irreparable damage on appellant;

(2) That the preliminary injunction is proscribed by the Norris-LaGuardia Act (Title 29 U.S.C.A. § 101 et seq.); and

(3) That the controversy exposed by the pleadings involves charges of unfair labor practices by the union under Sec. 8(b) (4) (i) and 8(b) (4) (ii) of the Labor Management Relations Act (Title 29 U.S.C.A. § 158), and primary and exclusive jurisdiction thereof belongs to the National Labor Relations Board.

(1) Irreparable Damage.

On this address to our equitable discretion, we consider whether there is an imbalance in the injuries that would accrue to the opposing parties from a suspension on the one hand or a continuance on the other, of the preliminary injunction. It is clear from the undisputed recitals in the plaintiff's memorandum that inability of the plaintiff and the railroads to handle the tonnage of coal to the Dominion Foundries during the present navigation season may involve substantial loss of revenue. It is not certain what claims may be made upon plaintiff and the railroads who depend on its services, should they be unable to deliver tonnage which they are required as a common carrier to deliver "upon reasonable request therefor" (Title 49, § 1 ¶ (4), U.S.C.A.). Work stoppages have been held not to excuse a common carrier's failure to make such deliveries. Montgomery Ward & Co. v. Northern Pacific Terminal Company, et al., D.C., 128 F.Supp. 475; Minneapolis & St. Louis Ry. Co. v. Pacific Gamble Robinson Co., 8 Cir., 215 F.2d 126, 132. Without a full hearing upon which the facts and rules binding a common carrier can be fully explored, we cannot adequately appraise the claims that might be asserted against plaintiff and the railroads for their failure to fulfill their duties as carriers. It is sufficient here to observe that inability to complete deliveries to vessels of the Upper Lakes Shipping, Ltd., could result in substantial and irreparable injury to plaintiff.

Conversely, the papers before us disclose no facts supportive of a claim that injury will ensue to defendant if the preliminary injunction remains in force. The International Longshoremen's Association claims no interest in whatever controversy may exist between Upper Lakes Shipping, Ltd., and the persons who picketed its boats at the plaintiff's dock. In fact, the nature of such controversy, except as we are informed by the signs carried by the Canadian pickets, is not disclosed. There is no claim that the defendant union is in any way affiliated with the unions identified by the pickets' signs; it does not appear that the members of the Longshoremen's local are engaged in the same trade, craft or occupation as the members of whatever Canadian unions, if any, may be involved in the picketing. In short, we are informed of no interest of the employees of the stevedore company that would directly or indirectly be served by refusing to load the vessels of Upper Lakes Shipping, Ltd.

It is suggested that loss to plaintiff could be avoided if the Dominion Foundries & Steel, Ltd., would select other lake carriers than Upper Lakes...