American Radio Ass'n v. Mobile Steamship Ass'n, Inc.

• Decision Date: 22 August 1973
• Docket Number: No. 72-3803.,72-3803.
• Citation: 483 F.2d 1
• Parties: AMERICAN RADIO ASSOCIATION et al., Plaintiffs-Appellants, v. MOBILE STEAMSHIP ASSOCIATION, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

483 F.2d 1 (1973)

AMERICAN RADIO ASSOCIATION et al., Plaintiffs-Appellants, v. MOBILE STEAMSHIP ASSOCIATION, INC., et al., Defendants-Appellees.

No. 72-3803.

United States Court of Appeals, Fifth Circuit.

August 22, 1973.

Otto E. Simon, Mobile, Ala., Howard Schulman, New York City, for plaintiffs-appellants.

Frank B. McRight, Kirk C. Shaw, Mobile, Ala., for Mobile Steamship Assn.

Alex F. Lankford, III, Mobile, Ala., for Malone.

Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.

THORNBERRY, Circuit Judge:

A group of unions (appellant) representing seamen on American flag vessels asked the district court to enjoin temporarily state court injunction proceedings brought against the union by Mobile Steamship Association, a membership corporation representing shippers and stevedoring companies at the Port of Mobile, and by Alabama soybean farmer Robert E. Malone. The unions charged that appellees used the state court proceedings to block peaceful picketing at the Port of Mobile, thereby violating the unions' first amendment free speech rights and 42 U.S.C. § 1983.¹ The district court denied the motion for temporary injunction, and the unions appeal that decision. We conclude the district judge did not abuse his discretion in denying appellants' motion, and therefore we affirm his decision.

The court below published no findings of fact or conclusions of law, but the parties by and large agree on the facts of this case. Some areas of contention do exist, and where they are important we shall describe the parties' differing contentions.

The nub of this case is the unions' dissatisfaction with the wage differential existing between American seamen and their foreign flag counterparts. The unions contend that the substandard wages paid to foreign flag seamen give foreign flag ships a competitive cost advantage over American flag vessels. Since lower costs naturally attract more shipping business, American flag shipping has lost ground to foreign flag shipping and many American seamen consequently have lost their jobs. To counteract this trend the appellant unions launched a nationwide campaign of picketing foreign flag vessels. Typically the pickets peacefully carried signs and handed out literature that described the foreigners' substandard pay and working conditions, the deteriorating state of the U. S. merchant marine, and the importance of a strong merchant marine. The literature further urged the reader not to patronize foreign flag vessels but to utilize the American merchant marine.

As a part of this campaign appellants began picketing all land entrances to the Port of Mobile's Alabama State Docks on November 3, 1971, and subsequently confined their activities to the berths of foreign vessels in port. The picketing effectively shut down the port because foreign vessels composed the largest part of the port's business, and local longshoremen refused to cross the picket lines. The impact of the picketing was unusually strong because it followed on the heels of a longshoremen's strike that had ended only minutes before appellants' picketing began. The prospect of continued inactivity and the accompanying loss of business at the port prompted appellee Mobile Steamship Association to seek a preliminary injunction from the Mobile County Circuit Court on the basis that the picketing had an unlawful purpose under Alabama law.² The state court enjoined the picketing without issuing findings or conclusions.

Throughout this dispute the unions have maintained that it belongs in the federal courts. They first attempted to remove the state cause of action; the federal district court remanded the action to state court. Their second attempt at federal adjudication came approximately one year after the state injunction. On November 3, 1972, the unions brought the instant action seeking damages, a permanent injunction, and a preliminary injunction against appellees' further prosecuting their cause in the state court, which in effect would be an injunction against the state court proceedings. The district court denied the motion for preliminary injunction, and the requests for damages and permanent injunction remain before that court.

In the meantime appellants have kept alive their state cause of action by appealing to the Alabama Supreme Court. That court ruled against the unions in May 1973,³ and overruled their rehearing application on July 5, 1973.

Appellants have brought their cause of action in the federal court under 42 U.S.C. § 1983, which gives a cause of action whenever one's federal rights are violated by a person acting under color of state law. The unions claim appellees violated their first amendment rights of free speech by getting an injunction that halts the unions' informational picketing, which is a form of speech. The appellees are acting under color of state law, according to the unions, because they utilized the state courts in their transgression of the unions' first amendment rights. Last, the unions say the doctrine of federal preemption gives primary jurisdiction in this matter to the NLRB and leaves the state court without power to adjudicate.

At this point we must emphasize that the merits of this case are not before the court. At issue here is simply an appeal from the denial of a preliminary injunction. A preliminary injunction's function is simply to preserve the status quo until the merits can be adjudicated. We test the trial court's decision by asking whether he abused his discretion. Mercury Motor Express v. Brinke, 5th Cir. 1973, 475 F.2d 1086; Exhibitors Poster Exchange, Inc. v. National Screen Service Corporation, 5th Cir. 1971, 441 F.2d 560. See 7 Moore's Federal Practice ¶ 65.04 (2d ed. 1972). The case's merits constituted only one factor to be weighed by the trial court in determining whether a preliminary injunction should issue. The merits are tested by asking whether the moving party has established a probable right to relief. 7 Moore's Federal Practice ¶ 65.04 (1972). Equally important are irreparable harm to appellants and the balance of harm to all parties.

In regard to the merits we conclude only that appellants' position is not so clearly correct that it would be an abuse of discretion for the trial court to decide they had not proved a probable right to relief. To illustrate, the unions rest heavily on Thornhill v. Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, to maintain that the picketing violates their right to free speech. The Supreme Court, however, restricted Thornhill in Teamsters Local 695 v. Vogt, 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347 (1957), which permits states to prohibit picketing where its purpose is counter to a valid state policy. In the instant case appellants claim the sole purpose was informational, but appellees argue the purpose was to interfere wrongfully with their businesses. Since appellees are neutral third parties in this dispute over seamen's wages and job opportunities, appellants arguably are violating the Alabama state policy against wrongful interference with the business of another. Without a finding of fact in regard to the unions' purpose we cannot say whether appellants' picketing is constitutionally protected free speech or a simple tort.

The preemption issue also will be central to appellants' claim on the merits.⁴ The unions argue that this dispute is within the primary jurisdiction of the NLRB and therefore the state court's jurisdiction is preempted. A series of Supreme Court cases⁵ has dealt with the problem of American unions' picketing foreign vessels, and the existence of NLRB jurisdiction appears to hinge on whether the dispute is one "affecting commerce."⁶ The dispute does not affect commerce if the picketing's purpose is to pressure the foreign ship's owner for more favorable treatment of his crew. In this case the Alabama Supreme Court found:

The dispute was either one between the unions and the foreign shipowners to force a raise in the internal standards of those vessels, or one where the intent was to block use of those ships to force Congress to act in the international sphere, which in either case are matters affecting international relations and not properly for NLRB jurisdiction. American Radio Association v. Mobile Steamship Association, 1973, 291 Ala. 201, 279 So.2d 467.

A Texas court of civil appeals reached a contrary conclusion concerning similar picketing by appellants in Windward Shipping (London) v. American Radio Association, 482 S.W.2d 675 (Tex.Civ. App.-Houston 14th Dist. 1972, no writ) cert. granted, 412 U.S. 927, 93 S. Ct. 2749, 37 L.Ed.2d 154 (1973), and found that the dispute was not focused on improving the foreign seamen's job opportunities by encouraging American business to patronize American shipping. Therefore the court concluded that NLRB jurisdiction preempted the state courts because the dispute affected commerce.

It is undisputed that the unions are dissatisfied with the wage differential existing between them and their foreign counterparts. They are also convinced that this wage differential is costing the American seaman job opportunities. It is not perfectly clear, however, whether they want their picketing to result in a ban on foreign shipping, higher wages for foreign seamen, or simply increased American use of the more expensive American shipping. Their intentions will determine whether the dispute affects commerce and falls within the National Labor Relations Act and the exclusive province of the NLRB. The question is a difficult one, and the U.S. Supreme Court has granted certiorari in the Windward Shipping case. We cannot say that it would be an abuse of discretion to decide that appellant is not likely to prevail on to the preemption issue.

Even if we assume that appellant has shown a "probable right" to recovery on the merits, it must also be able to show "probable danger that the right may be defeated, unless the injunction is issued." 7 Moore's...