Brotherhood of Maintenance of Way Employees v. Guilford Transp. Industries, Inc.

• Decision Date: 28 October 1986
• Docket Number: No. 86-1366,86-1366
• Citation: 803 F.2d 1228
• Parties: 123 L.R.R.M. (BNA) 2941, 55 USLW 2256, 105 Lab.Cas. P 12,096 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Plaintiff, Appellee, v. GUILFORD TRANSPORTATION INDUSTRIES, INC., et al., Defendants, Appellees. Appeal of DELAWARE AND HUDSON RAILWAY COMPANY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1228

803 F.2d 1228

123 L.R.R.M. (BNA) 2941, 55 USLW 2256,

105 Lab.Cas. P 12,096

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Plaintiff, Appellee, v. GUILFORD TRANSPORTATION INDUSTRIES, INC., et al.,

Defendants, Appellees.

Appeal of DELAWARE AND HUDSON RAILWAY COMPANY, Defendant, Appellant.

No. 86-1366.

United States Court of Appeals, First Circuit.

Argued Sept. 5, 1986.

Decided Oct. 28, 1986.

Richard T. Conway, with whom Shea & Gardner, Ralph J. Moore, Jr., William F. Sheehan, Nancy J. Bregstein, D. Eugenia Langan, and Kinga M. LaChapelle, Washington, D.C., were on brief for appellant.

John O'B. Clarke, Jr., with whom Highsaw & Mahoney, P.C., Washington, D.C., Craig J. Rancourt, Law Office of Craig J. Rancourt, Biddeford, Me., and Louis P. Malone, III, Gen. Counsel, Washington, D.C., were on brief for appellee Broth. of Maintenance of Way Employees.

Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

The principal issue presented by this appeal is whether the Railway Labor Act, 45 U.S.C. Sec. 151 et seq. (RLA), overrides the provisions of the Norris-LaGuardia Act, 29 U.S.C. Sec. 101 et seq., to the extent of permitting the enjoining of secondary picketing by a labor organization that has exhausted the procedures established by the RLA for resolution of a "major" dispute ¹ with a primary carrier-employer. ² Although this is a question of first impression in this circuit, we are the fortunate beneficiaries of prior consideration of this query by several of the courts of appeal. See Burlington Northern R. Co. v. B.M.W.E. 793 F.2d 795 (7th Cir.1986) (cannot enjoin secondary boycott); Central Vermont Ry. v. Broth. of Maintenance, 793 F.2d 1298 (D.C.Cir.1986) (cannot enjoin secondary picketing); Richmond, Fredericksburg and Potomac R.R. Co. v. B.M.W.E., 795 F.2d 1161 (4th Cir., 1986) (same). But see, Ashley, Drew and Northern Ry. v. UTU, 625 F.2d 1357 (8th Cir.1980) (secondary picketing may be enjoined when the interests of the party being picketed are not "substantially aligned" with those of the struck employer); Brotherhood of Railroad Trainmen v. Atlantic Coast Line R.R., 362 F.2d 649 (5th Cir.1966) (same). Cf. Consolidated Rail Corp. v. Broth. of Maintenance, 792 F.2d 303 (2d Cir.1986) (no need to exhaust RLA remedies before picketing secondary employer).

We affirm, on jurisdictional grounds, the district court's refusal to enjoin such conduct. 29 U.S.C. Sec. 101.

I

The appellee in this case, the Brotherhood of Maintenance of Way Employees (BMWE), is a labor organization representing a bargaining unit of maintenance of way employees of the Maine Central Railroad and its wholly-owned subsidiary, the Portland Terminal Company (referred collectively hereafter as the Maine Central). Since April, 1984, BMWE and Maine Central have been engaged in the negotiation of changes to their collective bargaining agreement, but have reached no agreement. The parties exhausted the RLA procedures for "major" dispute resolution ³ and thereafter, on March 3, 1986, the BMWE commenced a strike against the primary carrier-employer, Maine Central. Maine Central attempted to continue operating with supervisory personnel and replacements, ⁴ which in turn led to the escalation of hostilities by the BMWE. The union extended its picketing to other carriers not directly involved in the dispute with Maine Central. The object of this secondary picketing was to indirectly pressure Maine Central to give in to the BMWE's bargaining demands.

The pickets were initially extended to the Boston & Maine Railroad (B & M), which, like the Maine Central, is owned by Guilford Transportation Industries, Inc. (Guilford), a holding company. B & M interconnects with the Maine Central. Thereafter BMWE also picketed Delaware and Hudson Railway Company (D & H), another Guilford subsidiary, which however is non-connecting. ⁵ Additional non-affiliated and non-connecting railroads were picketed by BMWE, also with the object of exerting pressure on Maine Central.

Various suits were commenced throughout the country by the several secondary carriers in an attempt to stop the BMWE's secondary picketing. All of these suits, despite some initial successes in the district courts, were ultimately unsuccessful. The courts of appeal held that the secondary picketing was not prohibited by the RLA and could not be enjoined because of the Norris-LaGuardia Act. See Burlington Northern R. Co., supra; Central Vermont Ry., supra; Richmond, Fredericksburg and Potomac R.R. Co., supra.

In the meantime, in an apparent attempt to forestall action by the carriers elsewhere, the BMWE filed a declaratory judgment suit in the U.S. District Court in Maine against Guilford, B & M, and D & H, seeking, among other things, a declaration to the effect that its secondary picketing of B & M and D & H was protected activity under the Constitution and the RLA. The carrier-defendants counterclaimed and sought injunctive relief to prohibit the secondary activity.

The district court, after hearing D & H's motion for preliminary injunction, ruled that all that was required for the Norris-LaGuardia Act to apply was that there be a labor dispute and that the union continue to act as a labor organization. Finding that both conditions existed in this case, the court in effect concluded that it was immaterial whether or not the interests of D & H and Maine Central were "substantially aligned." ⁶ Injunctive relief was denied and this appeal ensued.

II

In 1881 Oliver Wendell Holmes, in his now famous essay, stated that "[t]he life of the law has not been logic; it has been experience." ⁷ The present situation is a case in point, as much of appellant's argument is based on its perception that it would be illogical to conclude that Congress, in enacting the legislation here in question, intended to permit a relatively small labor dispute in Maine to disrupt railroad transportation activities in other parts of the nation. What Congress may or may not have done is explainable less in terms of logic, than by recounting how this legislation developed. Thus, the issue presented by this case cannot be answered, and the answer cannot be properly supported, without consideration of the events leading up to the passage of the RLA, and subsequent legislation. ⁸

At common law, all strikes and pickets, whether primary or secondary, were considered illegal combinations or conspiracies. In the early 18th century most of this activity was subjected to criminal sanctions, ⁹ an attitude that prevailed until Commonwealth v. Hunt ¹⁰ ruled that collective labor activity was not a criminal conspiracy. Thereafter, the civil injunction became the principal weapon by which strikes and picketing were suppressed. In issuing injunctive relief against these concerted activities, courts relied on common law principles of nuisance, trespass and interference with advantageous relationships. ¹¹

Two views soon emerged, both of which were represented in the leading Massachusetts case of Vegelahn v. Gunter. ¹² In this case the majority held that peaceful picketing to obtain higher wages was an unlawful means of securing a lawful objective. Judge Holmes dissented, arguing that if the object of the activity was lawful, any non-violent means was lawful, even against "third persons." In this stage of development of the law of striking and picketing, no distinction appears to have been drawn between primary and secondary activity. ¹³

In 1908, the Supreme Court decided the Danbury Hatters case, ¹⁴ specifically ruling that both primary and secondary boycotts were actionable in damages pursuant to Section 7 of the Sherman Act. ¹⁵ Thereafter the use of the federal courts to enjoin labor disputes became even more prevalent and led to the passage of the Clayton Act in 1914. ¹⁶

In enacting Section 20 of the Clayton Act, ¹⁷ Congress attempted to narrow the jurisdiction of the federal courts by prohibiting injunctions in disputes concerning terms and conditions of employment. Purportedly, the only exception was equitable relief necessary to prevent irreparable injury to property or to a property right. The Supreme Court, however, in Duplex Printing Press Co. v. Deering, ¹⁸ narrowed Section 20's prohibition on injunctions to disputes between parties in the proximate relation of employer and employee and not to secondary boycotts. Thus secondary activity was held to be enjoinable even after Section 20 was enacted.

Against this background Congress passed the RLA in 1926. ¹⁹ Although limited at that time to the railroad industry, ²⁰ the RLA was the first major Congressional recognition of employees' right to organize and to negotiate with employers. The RLA made no mention of secondary boycotts. There are, however, various indications from the text of the statute that the rights and procedures established thereunder were only intended to regulate the relationships between carriers and their employees. For example, Section 1, Fifth of the RLA ²¹ defines the term "employee" as including "every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service)" (emphasis supplied). Several other sections refer to the carrier(s) and "its or their employees." ²² The use of the defined term "employee" throughout the statute strongly suggests that a classical employee-employer relationship was contemplated by Congress. ²³

In our search of the legislative history of the original RLA and its subsequent amendments, ²⁴ we have been unable to find any expressed or implied indication that Congress intended to prohibit the use of secondary activities by a labor organization once the procedures established by the RLA had been exhausted between the union and the carrier with whom negotiations were taking place. In the face of this legislative silence, the conclusion that Congress meant to proscribe such activities can only be reached by...