Anderson v. Bigelow

• Decision Date: 25 August 1942
• Docket Number: No. 9886.,9886.
• Citation: 130 F.2d 460
• Parties: ANDERSON v. BIGELOW.
• Court: U.S. Court of Appeals — Ninth Circuit

130 F.2d 460 (1942)

ANDERSON v. BIGELOW.

No. 9886.

Circuit Court of Appeals, Ninth Circuit.

July 23, 1942.

As Modified on Denial of Rehearing August 25, 1942.

Lloyd V. Smith and John S. Field, of Reno, Nev., for appellant.

Duncan A. McLeod, of San Francisco, Cal., and Walter Rowson, of Reno, Nev., for appellee.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

Appellant, individually and as president and business agent of the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local #533 of Reno, Nevada, (hereinafter called the Union,) appeals from a decree enjoining appellant and the Union from interfering with the business of the Virginia & Truckee Railway, engaged in interstate carriage by truck, (hereinafter called the Carrier,) "and/or" Virginia-Truckee Transit Company,¹ both being corporations in receivership in the district court, "by boycotting and/or by partolling and/or picketing and/or loitering in the streets, roads, highways, or in front of the places of business of said corporations in receivership, or either of them."

The evidence shows that the Union's members were drivers of trucks. The receiver of the Carrier was engaged in interstate transport of merchandise by two separate methods. One was by rail and the other by motor carriers on the highways of Nevada. There is no evidence and no finding of the district court that the motor carriage of the corporation was in any way connected with its rail carriage. Obviously, the receiver's truck carriage does not become connected with his rail carriage because the word "Railway" appears in the title of the Carrier corporation. Neither evidence nor finding showed that the Carrier's trucks even operated in such a "pickup" function for and incidental to the rail carriage as was considered in Circuit Judge Groner's opinion in American Trucking Ass'ns v. United States, D.C., 17 F.Supp. 655.

The receiver's description of this separate line highway interstate trucking appears in the footnote.² The "pick up" truck there listed, serves the over the highway trucking. It was not proved or contended that it also served the railroad traffic of the receiver.

The appellant, acting on behalf of the Union, presented to the receiver two proposed written contracts, one respecting terms of employment of the motor operating employees of the receiver, and the other respecting wages. There were some weeks of delay by the receiver and finally, as the court found on supporting evidence, the appellant notified the receiver that unless the contracts were accepted by him by a certain day his Union would cause a strike, a picketing and a boycott against the business conducted by the receiver. There was no evidence and no finding that any violence against any men or property was threatened. The receiver petitioned the district court and injunctions, preliminary and pendente lite, were ordered, followed by the decree appealed from.

The district court held that so far as concerns labor disputes of the truck drivers and their Union with the receiver they are controlled by the Railway Labor Act, 45 U.S.C.A. § 155, 44 Stat. 580.

There is no question that the injunctive decree is valid if the Railway Labor Act controls, for none of the requirements which are conditions precedent to the right of rail carrier employees to strike were satisfied.

The district court, In re Virginia & Truckee Ry., 36 F.Supp. 119, 121, arrived at its conclusion that the Railway Labor Act is applicable in the following language:

"The `Motor Carrier Act,' Title 49 U.S. C.A., Chapter 8, § 301 et seq., deals with motor carriers engaged in interstate commerce `including such motor vehicle operations of carriers by rail or water, and of express or forwarding companies, except to the extent that these operations are subject to the provisions of chapter 1 of this title.' Tit. 49 U.S.C.A. § 303(a) (14), § 313(b). Chapter 1, so referred to, is the `Interstate Commerce Act, 49 U.S.C.A. § 1 et seq.' American Trucking Ass'ns v. United States, D.C., 17 F.Supp. 655. By the provisions of this Act, the Interstate Commerce Commission has conferred upon it the powers and duties: `To regulate common carriers by motor vehicle * * * qualifications and maximum hours of service of employees, and safety of operation and equipment.' 49 U.S.C.A. § 304(a) (1). United States v. American Trucking Ass'ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345."³

We are unable to follow the district court's reasoning based on this extract from section 303(a) (14) of the Motor Carrier's Act, 49 U.S.C.A. 301 et seq. The sentence from which the extracted phrase is taken is the definition of the term "common carrier by motor vehicle," and reads as follows:

"The term `common carrier by motor vehicle' means any person who or which undertakes, whether directly or by a lease or any other arrangement, to transport passengers or property, or any class or classes of property, for the general public in interstate or foreign commerce by motor vehicle for compensation, whether over regular or irregular routes, including such motor vehicle operations of carriers by rail or water, and of express or forwarding companies, except to the extent that these operations are subject to the provisions of part I." 49 Stat. 544 § 203(a) (14), 49 U.S.C.A. 303(a) (14).

None of the "motor vehicle operations of carriers by rail or water, and of express or forwarding companies" "are subject to the provisions of part I," except the terminal pick-up service incidental to rail carriage. The Interstate Commerce Commission draws the distinction between truck line haul and pick-up trucking for a rail haul. As was stated in Judge Groner's opinion in a three judge district court decision, "We are, therefore, in full agreement with the statement of the Commission that in adding the proviso in section 203(a) (14) — except to the extent that these operations are subject to the provisions of part 1 — `Congress may be presumed to have legislated with knowledge of the court decisions previously mentioned, holding that pick-up and delivery service is within the meaning of "transportation" as defined in section 1 (3) of the Interstate Commerce Act (49 U. S.C.A. § 1(3) ) as well as with knowledge of our own administrative findings to the effect that while railroad terminal service by motortruck was subject to regulation under the Interstate Commerce Act, the use of motortrucks by railroads in line-haul service was not subject to that act.'" American Trucking Ass'ns v. United States, D.C., 17 F.Supp. 655, 657.

Here, as stated above, no evidence was introduced to support the burden of proof of appellee, petitioner below, that any of the truckmen enjoined were engaged in any service, terminal pick-up or otherwise, incidental to rail traffic. The defendants were employed by a "common carrier by motor vehicle" on the "highways" of Nevada.⁴

They are hence governed by the Motor Carriers Act,⁵ though their employer is a receiver.⁶

That is to say, that so far as concerns the general regulations applying to the receiver's truck drivers, he was under the control of the Interstate Commerce Commission and not of the district court.

The district court did not rely on any contention that the Norris-LaGuardia Act does not apply where employers, other than carriers under the Railway Labor Act, have brought or had their companies brought into a federal receivership and transferred the employer status to a receiver. Nor is there any contention that the Norris-LaGuardia Act would not prevent an injunction against the employees because of violence or any other of the exceptions of the Act.

However, it has been suggested elsewhere that employers can escape the provisions against enjoining peaceful striking or picketing if their enterprises can be brought within a federal receivership. We can find no case supporting such an interpretation of the Norris-LaGuardia Act. It prohibits injunctions "in any case involving or growing out of any labor dispute."⁷ It provides that "No court of the United States shall have jurisdiction to issue"⁸ such injunctions.

There is no exception of "any case" or "any labor dispute" in receivership proceedings. It applies to the injunctions of every court. Its more recently enacted particular provisions control and limit the prior general power of federal courts to issue injunctions of Section 262 of the Judicial Code, 28 U.S.C.A. 377.

The Norris-LaGuardia Act was passed seven years after the Railway Labor Act, recognizing an existing right to strike by employees of railroad receivers,⁹ if its arbitral provisions have failed to produce an agreement. It was followed in 1935 by the Motor Carriers Act, also, as shown above, recognizing receiver employees as within its provisions.

Apart from the clear provisions of the Norris-LaGuardia Act, we see no reason why Congress should deprive the federal courts of the right of enjoining striking and picketing in industrial disputes, where the enterprise is brought before the court for its general equity protection and should allow the injunction where the enterprise already has been brought there for equitable relief with regard to the company's creditors. In the latter case it is nonetheless an industrial dispute. The receiver's truckmen are engaged in an interstate industry and the community as a whole is as much benefited by the freedom of labor to organize effectively for collective bargaining¹⁰ for better wages or elimination of grievances in dealing with an employing receiver as any other employer. Cf. United States v. Hutcheson, 312 U.S. 219, 235, 61 S.Ct. 463, 85 L.Ed. 788.

Certainly the history of federal injunctions does not warrant the inference that Congress regarded federal receivers to be less potent to resist employee bargaining pressure than are the owners of the enterprises. A receiver's employee may ask for higher wages or shorter hours and resign if h...