Blankenship v. Kurfman

• Decision Date: 26 April 1938
• Docket Number: No. 6501.,6501.
• Citation: 96 F.2d 450
• Parties: BLANKENSHIP et al. v. KURFMAN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

96 F.2d 450 (1938)

BLANKENSHIP et al. v. KURFMAN et al.

No. 6501.

Circuit Court of Appeals, Seventh Circuit.

April 26, 1938.

John A. Brown, of Chicago, Ill., and Vincent Morreale and Edward O'Connor, both of New York City, for appellants.

Edmund Burke and Louis Gillespie, both of Springfield, Ill., and George Z. Barnes, of Peoria, Ill., for appellees.

Before SPARKS, MAJOR, and TREANOR, Circuit Judges.

TREANOR, Circuit Judge.

This appeal is prosecuted from an order of preliminary injunction issued by the District Court of the United States for the Southern District of Illinois, Northern Division. The plaintiffs, as individuals and as members of local union No. 702 of the International Brotherhood of Electrical Workers, filed their bill of complaint for an injunction in the District Court, seeking to restrain the defendants, individually and as members of local union No. 165 of the International Hod Carriers Building and Common Laborers Union, from interfering with, threatening, intimidating, or exerting violence against the plaintiffs while in the course of their employment with the Central Illinois Light Company.

The plaintiff and defendant unions are affiliated with the American Federation of Labor and, as between these two groups, the controversy primarily involved the question of jurisdiction as members of the American Federation of Labor. The members of the International Brotherhood of Electrical Workers are all employees of the Central Illinois Light Company, and the particular members of the local union No. 702 who are involved in this suit are the employees of the gas department of the Central Illinois Light Company. The work which was being done by the plaintiffs and which was involved in this suit consisted of digging and filling in ditches, taking up and laying down mains and service lines, of running pipes to street curbs, and cutting weeds on the company's property, and was of the general type described by the term "common labor."

In November, 1936, the employees of the gas department of the Central Illinois Light Company joined local union No. 702 of the International Brotherhood of Electrical Workers. Prior to that time they had not been members of any labor organization. Representatives of the International Hod Carriers Building and Common Laborers Union attempted to negotiate a contract with the Central Illinois Light Company for the purpose of securing the work in question for members of their organization, but the light company refused to negotiate with them on the ground that they were already negotiating a contract with the representatives of their own employees who had been selected by a majority of the employees. Subsequently, a contract was entered into between the Central Illinois Light Company and Local Union No. 702 of the International Brotherhood of Electrical Workers. After the contract was entered into and the plaintiff members of the International Brotherhood of Electrical Workers attempted to perform their work, groups of men headed by the defendants congregated about the places where the plaintiffs were working and demanded that they stop working, and threatened them with physical violence if they refused to obey. Plaintiffs were told that they "would have to join the International Hod Carriers Building and Common Laborers Union or would have to get off the job until they got things straightened out." There were some acts of personal violence and as a result of the violence and threats the plaintiffs were so intimidated and coerced that they abandoned their work.

The plaintiffs are by their own choice members of the local union of International Brotherhood of Electrical Workers and as such members had designated the officers and representatives thereof to bargain collectively for them with their employer, the Central Illinois Light Company. There was no controversy of any kind between the plaintiffs and their employer; and in negotiating and consummating the contract the plaintiffs and their employer proceeded generally in accordance with the terms of the National Labor Relations Act, 29 U. S.C.A. §§ 151-166.

There is no diversity of citizenship, and the grounds of federal jurisdiction relied upon by the plaintiffs, and recognized by the trial court, were that the alleged unlawful acts of the defendant (1) deprived the plaintiffs of the free exercise and enjoyment of rights and privileges secured to them by the National Labor Relations Act, and (2) affected the free flow of commerce among the several states.

In addition to other facts the trial court found the following:

"10. * * * and, by reason of the interference with the performance of said contract aforesaid, between said plaintiffs and their employer, and the interference with interstate commerce in the manner aforesaid, and the conspiracy on the part of said defendants to continue their unlawful acts with respect thereto, substantial and irreparable injury to plaintiffs' property will follow, and the free flow of commerce between the several states will be obstructed.

"11. That this case does not involve a controversy between an employer and its employees.

"12. That a preliminary injunction should be immediately granted to remain in force until the further order of this Court."

The court also stated conclusions of law Nos. 1 and 2 as follows:

"(1) That the Plaintiffs have no adequate remedy at law.

"(2) That the Norris-LaGuardia Act 29 U.S.C.A. §§ 101-115 has no application to this case."

The foregoing second conclusion of law obviously rested upon finding of fact No. 11, which is "that this case does not involve a controversy between an employer and its employees." Prior to the decision of this case by the District Court, the Circuit Court of Appeals of the 7th Circuit had held that the term "labor dispute," as used in the Norris-LaGuardia Act, necessarily implied the relationship of employee and employer between the disputants.¹

But the recent decisions of the Supreme Court of the United States in Senn v. Tile Layers Protective Union,² Edward Lauf v. Shinner & Co.³ and New Negro Alliance v. Sanitary Grocery Co., Inc.,⁴ clearly have established that there can be a labor dispute, within the meaning of the Norris-LaGuardia Act, 29 U.S.C.A. §§ 101-115, in the absence of relation of employer and employee, and even when "the petitioners are not engaged in any business competitive with that of the respondent, and the officers, members, or representatives of the Alliance petitioners are not engaged in the same business or occupation as the respondent or its employees."⁵

In view of the foregoing decisions, the facts as found by the District Court in the instant suit clearly disclose a "case involving or growing out of a labor dispute," as defined in the Norris-LaGuardia Act, § 1, 29 U.S.C.A. § 101. Consequently, the District Court was without jurisdiction to issue the temporary injunction without complying with the provisions of that act. And since the court did not comply with the provisions of that act, its decree and judgment must be set aside.

The proposition of the plaintiffs that the effect of the National Labor Relations Act, especially sections 157 and 159 (a) of title 29 U.S.C.A.,⁶ is to create a federal right, the violation of which by the defendants entitles plaintiffs to injunctive relief, is untenable.

In Lund v. Woodenware Workers Union⁷ an employer was seeking, in a federal court, to enjoin a striking minority of employees from interfering by violence or intimidation with a contract, which had been made by the employer with representatives selected by the alleged majority of the employees. In that case, as in the instant case, there had not been any action by the National Labor Relations Board in connection with the negotiation of the contract. It was urged upon the court that by reason of section 159 (a) of the National Labor Relations Act⁸ the employer had the right to proceed in a federal District Court to restrain the minority of his employees from in any way interfering by violence or intimidation with the contract made between the employer and the designated representatives of the majority. But the District Court concluded that the plaintiff was seeking to enforce a right which was not created, either expressly or impliedly, by the federal statute in question; and that he was seeking to read into the act certain rights for employers and employees which Congress studiously refrained from giving to either. We agree with that conclusion.

The general purpose of the National Labor Relations Act is to provide methods of preventing or eliminating certain "unfair practices" which have heretofore characterized the relation of employer and employee, and which have obstructed, or tended to obstruct, the free flow of commerce. The act creates certain rights and duties as between employer and employee and provides the procedure necessary to give effect thereto. It seems clear that the only rights which are made enforceable by the act are those which have been determined by the National Labor Relations Board to exist under the facts of each case; and when these rights have been determined, the method of enforcing them which is provided by the Act itself must be followed. And we find no provision in the act which can be construed as intending to create rights for employees which can be enforced in federal courts independently of action by the National Labor Relations Board. Consequently, we hold that the contract in the instant case between the plaintiffs and their employer did not, by force of the National Labor Relations Act, create a right in the plaintiffs which was secured to them "by the Constitution or laws of the United States." Consequently, the alleged unlawful interference by the defendants with the plaintiffs' contractual rights did not give a cause of action of which a federal court would have jurisdiction in the absence of diversity of citizenship.

Also, we are of the opinion...