Ashley, Drew & Northern Ry. Co. v. United Transp. Union and Its Affiliated Local No. 1121, 1121

Citation625 F.2d 1357
Decision Date09 July 1980
Docket NumberA,No. 79-1886,No. 1121,1121,79-1886
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Parties104 L.R.R.M. (BNA) 3105, 89 Lab.Cas. P 12,179 ASHLEY, DREW & NORTHERN RAILWAY COMPANY, Appellee, v. UNITED TRANSPORTATION UNION AND ITS AFFILIATED LOCAL NO. 1121; Bobby G. Hall; Harold L. Rhoads; J. R. Tice and H. G. Kenyon, Individually and as Representative of United Transportation Union & Localppellants.

Pamela D. Walker, Little Rock, Ark., for appellants.

Walter A. Paulson, Little Rock, Ark., argued, for appellee; James W. Moore and Oscar E. Davis, Jr., Little Rock, Ark., on brief.

Before STEPHENSON, Circuit Judge, KUNZIG, * Court of Claims Judge, and McMILLIAN, Circuit Judge.

STEPHENSON, Circuit Judge.

United Transportation Union (UTU) 1 appeals from a preliminary injunction restraining it from picketing Ashley, Drew & Northern Railway Company (AD&N). The district court 2 issued the injunction on the ground that UTU was engaged in secondary picketing outlawed by the Railway Labor Act. The principal issues on appeal are (1) whether the district court had jurisdiction to issue the injunction, and, if so, (2) whether issuing the injunction was an abuse of discretion. A threshold issue is whether the appeal is moot inasmuch as the strike underlying the picketing has ended. We reach the merits and affirm the action of the district court.

I. Background

Appellee AD&N sought injunctive relief when UTU, on strike against the Chicago, Rock Island & Pacific Railroad Company (hereinafter Rock Island), began to picket AD&N and induce its employees to leave their jobs. This picketing was in response to AD&N's use of managerial personnel to move the freight of an affiliated railroad in Rock Island's railroad yard at Fordyce, Arkansas. AD&N has about seventy-five employees, some of whom belong to UTU. But, at the time the picketing occurred, UTU and AD&N had no dispute over the pay or working conditions of AD&N employees.

The material facts are not in dispute. AD&N is owned by the Georgia-Pacific Company, which makes wood-based products. AD&N operates on about forty miles of track between the Arkansas towns of Monticelli and Crosset. AD&N serves several customers along this route. Its principal customers are the Georgia-Pacific processing plants around Crosset.

About fifty miles from Crosset is Fordyce, where Georgia-Pacific owns and operates both a mill and a one-engine, two-man railroad, the Fordyce & Princeton Railway Company (F&P). F&P leases freight cars from other railroads and transports them over the half-mile track between the mill and the railroad yard at Fordyce. During the relevant period, this yard was owned by Rock Island, which leased facilities to F&P and to the St. Louis Southwestern Railway Company (hereinafter Cotton Belt). By a trackage agreement, Rock Island permitted F&P and Cotton Belt to use specified Rock Island track "for the purpose of effecting interchange with each other." UTU was not a signatory to this agreement.

Before the Rock Island strike, F&P would deliver carloads of processed wood to the Fordyce yard and take empty cars back to the mill. Rock Island or Cotton Belt employees would deliver empty cars to the yard. Rock Island employees would pick up loaded cars to be routed via Rock Island, Cotton Belt employees would pick up cars to be routed via Cotton Belt. About 150 cars were interchanged each day in the Fordyce yard, with F&P's interchanges accounting for about fifteen to twenty of that number.

In late August of 1979, UTU, after exhausting conciliation proceedings required by the Railway Labor Act, began a lawful strike against Rock Island and posted pickets at Rock Island's Fordyce depot. This depot was beside the Rock Island track that linked F&P with the Cotton Belt and Rock Island lines. Although not themselves on strike, Cotton belt employees refused to cross UTU's picket line to interchange cars between Cotton Belt and F&P. F&P's employees similarly refused.

In response to this development, AD&N and F&P which had common management dispatched three or four AD&N officers from Crosset to move the F&P freight. 3 From August 31 to September 5 AD&N officers operated the F&P locomotive to move cars over the Rock Island track specified in the Rock Island-Cotton Belt-F&P trackage agreement. Sometimes, because of congestion on this track, the AD&N officers used Rock Island's main track to effect the interchange. The officers also transferred to Cotton Belt some cars that would have been carried by Rock Island in the absence of a strike. The officers did not advance Rock Island freight cars for the benefit of any other Rock Island customer; their aim was to maintain F&P's rail service for Georgia-Pacific's Fordyce mill.

After recognizing that the workers crossing picket lines at Fordyce were AD&N personnel, UTU sent members to picket the AD&N line near Crosset. At 6:45 p. m. on September 5, UTU members bearing picket signs accosted an AD&N train leaving Crosset. AD&N employees responded by abandoning the train. At 11:30 p. m. additional UTU pickets appeared at the main entrance of Georgia-Pacific's Crosset plant complex. The effect of these picket lines was that about sixty of AD&N's seventy-five employees chose to stay off the job. The remaining employees, supplemented by management personnel, could perform no more than twenty-five percent of AD&N's regular rail service.

Continual use of the AD&N line was critical to operation of Georgia-Pacific's Crosset plants. Each day, AD&N brought in seventy carloads of raw materials to Crosset and carried out a like amount of finished product. No alternative form of shipment was reasonably available. Because the Crosset plants had few storage facilities, a one or two-day delay in either outgoing or incoming rail shipments would force the plants to shut down. In that event, about 3,000 employees would be out of work. The district court found that trade and public revenues in the surrounding areas would suffer by the loss of millions of dollars per month in wages.

On September 6, the day after UTU's picketing against AD&N began, AD&N posted a $25,000 indemnity bond and secured a temporary restraining order against the picketing. This order remained in effect until September 14, when it was superseded by the district court's preliminary injunction. In issuing the injunction, the court held that AD&N had met its two-fold burden of establishing the potential for irreparable harm absent immediate injunctive relief and a likelihood of success on the merits. As to the latter, the court ruled that UTU's secondary picketing against AD&N was prohibited by the Railway Labor Act and not protected by the anti-injunctive provisions of the Norris-LaGuardia Act. 4 Important to both rulings was the court's finding that there was no "substantial alignment" between AD&N and Rock Island: the court found that AD&N and F&P were only continuing their rail service for Georgia-Pacific, not aiding Rock Island in the strike.

II. Mootness

Federal jurisdiction extends only to actual cases and controversies, U.S.Const. art. 3, § 2, and the case or controversy "must exist at stages of appellate * * * review, and not simply at the date the action is initiated." Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). See SEC v. Medical Committee for Human Rights, 404 U.S. 403, 405-07, 92 S.Ct. 577, 579-580, 30 L.Ed.2d 560 (1972). Noting that the UTU-Rock Island strike ended while this appeal was pending, AD&N contends that the termination of the strike deprived UTU of any present interest in the outcome on appeal and argues that UTU's appeal should therefore be dismissed as moot.

We cannot agree. As the party seeking extraordinary injunctive relief, AD&N was required to post a bond to indemnify UTU for any loss UTU might sustain as a result of being wrongfully enjoined or restrained. See Fed.R.Civ.P. 65(c). Because UTU has a continuing monetary stake in demonstrating that injunctive relief should not have been issued, its appeal is not moot. See Liner v. Jafco, Inc., 375 U.S. 301, 305-06, 84 S.Ct. 391, 394-395, 11 L.Ed.2d 347 (1964); Associated General Contractors v. International Union of Operating Engineers Twin City Local No. 49, 519 F.2d 269, 271-72 (8th Cir. 1975). See generally American Bible Society v. Blount, 446 F.2d 588, 594-96 (3d Cir. 1971). 5 We turn to the merits.

III. Jurisdiction to Issue Injunctive Relief

UTU attacks the district court's jurisdiction on two alternative grounds. First, UTU contends that this case involved or arose out of a "labor dispute" either between UTU and Rock Island or between UTU and AD&N within the meaning of the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115. Accepting that contention would mean that the district court was affirmatively deprived of any jurisdiction it otherwise might have had to issue injunctive relief. Second, UTU contends that, even should Norris-LaGuardia not apply, AD&N had no federal right of action for injunctive relief. We reject both contentions and conclude the district court had jurisdiction to issue an injunction.

A. Effect of the Anti-Injunction Act

The Norris-LaGuardia Act of 1932 generally removes the jurisdiction of federal courts to issue injunctive relief in "any case involving or growing out of any labor dispute," 29 U.S.C. § 101. Injunctive relief against secondary picketing in such a case is either absolutely barred, see 29 U.S.C. § 104(a), (e) & (i), or is available only under special circumstances which were not shown here, see 29 U.S.C. §§ 107, 108. Applicability of the Act's anti-injunction proscription therefore depends solely on whether this was a case involving or arising out of a labor dispute within the meaning of the Act. 6

Section 13(c) of the Act, 29 U.S.C. § 113(c), defines "labor dispute" as "any controversy" concerning either "terms or conditions of employment" or "representation" of persons in...

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