Brotherhood of Railroad Carmen v. Chicago & NW Ry. Co.

Decision Date01 March 1966
Docket NumberNo. 17962.,17962.
PartiesBROTHERHOOD OF RAILROAD CARMEN OF AMERICA, LOCAL NO. 429, a voluntary association, individually and as representatives of certain employees of plaintiff represented by said organization, John Brokena, individually and as President of said organization, Paul Jones, individually and as Local Chairman of said organization, Charles P. Harris, individually and as Vice-Chairman of said organization, and J. R. Baughman, G. E. Greathouse and Robert F. Malone, as individuals and as members of a class who fairly and adequately represent certain carmen aiding, abetting, participating in or assisting in a certain work stoppage hereinafter referred to, Appellants, v. CHICAGO AND NORTH WESTERN RAILWAY COMPANY, a corporation, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Gilbert Feldman, of Kleiman, Cornfield & Feldman, Chicago, Ill., Bernard Kleiman, Gilbert A. Cornfield and Linzey D. Jones, Chicago, Ill., and Robert E. Conley, Des Moines, Iowa, for appellants.

Frank W. Davis, Jr., Davis, Huebner, Johnson & Burt, Des Moines, Iowa, R. W. Russell, Chicago, Ill., for appellee.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT and MEHAFFY, Circuit Judges.

VOGEL, Chief Judge.

This case arises out of a dispute involving defendant-appellant, a union, and certain members thereof, and plaintiff-appellee, a railway carrier. The dispute gave rise to a strike which the appellee successfully sought to enjoin in the District Court. Appellants appeal from the trial court's findings of fact, conclusions of law and order making the injunction permanent.

The appellee (hereafter carrier) is a railway carrier engaged in interstate commerce and servicing nine midwestern states. It is a corporation organized and existing under the laws of the State of Wisconsin with its general office at Chicago, Illinois. Defendants below included the Brotherhood of Railroad Carmen of America (both the national organization and Local No. 429 of Clinton, Iowa, although the former was exonerated of any responsibility in this action by the trial judge and is not a party to this appeal) and officers and representatives thereof (as individuals and as members of the union).

The facts giving rise to the issuance of the injunction are as follows. On Wednesday, December 9, 1964, between 7:00 and 7:15 a. m., appellant Paul Jones, Chairman of appellant Local 429 and an employee of the carrier in its car shop at Clinton, Iowa, engaged in a conversation with one Craig Fenton, employed by the carrier as an assistant foreman in the car shop. The trial court found that during this conversation Jones accused Fenton, in foul and abusive language, of mistreating one Lloyd Nash, a member of Local 429 and an employee of carrier immediately under the supervision of Fenton, and of being the cause of a stroke allegedly suffered by Nash. Jones threatened Fenton with bodily harm by inviting him outside the premises to settle their differences through physical violence.

Later that morning Richard E. Powers, the superintendent of the Clinton car shop, looked into the incident between Jones and Fenton. Lloyd Nash, the subject of Jones' complaint to Fenton, was present and stated that he had had an attack over the week-end, causing him to be absent from work on Monday, December 7th, and Tuesday, December 8th. Fenton knew of Nash's absence from work, having been notified by the timekeepers that Nash had telephoned in to the effect that he was sick. He was not aware, however, that Nash had suffered any disability. Nash told Larry A. Bengston, the carrier's general foreman at the Clinton car shop, that he had not been overworked and, in response to a question, said, "Larry, you've always been very fair with me." Powers testified at trial that Jones had not followed ordinary grievance procedures (set out in f.n. 1, infra) when he talked with Fenton concerning Nash. In light of the above, Powers told Jones that he thought Jones was in error and that an apology was due Fenton. Jones politely refused to make any apology. Powers again requested an apology, and after Jones again refused, Jones was removed from service as of 10:15 a. m. on December 9, 1964, pending an investigation pursuant to the provisions of Rule 35 of a prior agreement entered into between the carrier and its employees (hereafter the carrier-employee agreement) of the Clinton car shop.1

The trial judge found that after the suspension, Jones individually and as Chairman of Local No. 429, made false representations to other employees at the car shop that a strike had been authorized by the National Brotherhood of Railroad Carmen of America. This led to a work stoppage at about 1:00 p. m. on December 9th and a complete shut-down of the car shop by 7:00 a. m. on December 10th. Other appellants besides Jones also actively encouraged the strike by posting signs, by carrying placards, and by talking to their fellow employees. These appellants were found to have left their work in violation of Rule 33 of the carrier-employee agreement referred to previously (and set out at f.n. 1, supra). The court found that the national union organization and its officers in no way knew about or encouraged the unauthorized strike and they were absolved of any responsibility therefor.

In the evening of December 9th the carrier filed a verified complaint in the United States District Court for the Southern District of Iowa, seeking a temporary restraining order and a preliminary injunction. The carrier alleged a wrongful and unlawful work stoppage in violation of the requirements of the Railway Labor Act, 45 U.S.C.A. § 151 et seq., possible irreparable injury as a result of this violation, and an inadequate remedy at law. The requested restraining order was issued by the court on December 9, 1964, at 11:00 p. m. By its terms it was to expire on December 18, 1964, at 11:00 a. m. The expiration date was later extended until the time of the issuance of the permanent injunction. The temporary restraining order was similar in its terms to the permanent injunction that was eventually issued. Copies of the restraining order were served, together with the summons and complaint, on appellants or their representatives between the hours of 3:30 a. m. and 5:30 a. m. on December 10, 1964. Despite the issuance of the restraining order and the attendant publicity, the work stoppage at the car shop continued through the 3:30 p. m. shift of Friday, December 11th. The men returned to work on Monday, December 14th, apparently as a result of a radio plea to do so that was made on December 13th by some of the appellants.

On December 18, 1964, hearings were begun. The injunction proceeding was tried concurrently with contempt proceedings arising out of alleged violations of the temporary restraining order. On December 24, 1964, the permanent injunction involved on this appeal was granted. It was based on a finding by the trial judge that the suspension of Jones was justified since his alleged grievance was not handled in accordance with mandatory provisions of the Railway Labor Act,2 nor in accordance with relevant provisions of the carrier-employee agreement. The trial judge reserved jurisdiction on the contempt issue.

Appellants contend:

"The District Court erred in its conclusion that the provisions of the Norris-LaGuardia Act are not applicable to this case, fallaciously reasoning that there could not be a labor dispute within the meaning of that Act upon a failure of the defendants to comply with the mandatory provisions of the Railway Labor Act."

If the appellants are correct in their contention that the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., should have applied in this case, it is their further contention that the injunction granted by the trial judge is void since it was issued in violation of the proscriptions and requirements imposed under the Norris-LaGuardia Act.3 For reasons that will become apparent, we believe that even if the dispute in controversy could be classified as a labor dispute within the meanin of the Norris-LaGuardia Act,4 the trial judge did not err in refusing to consider that Act in this case.

As noted previously, the injunction was granted by the trial judge because the alleged grievance herein was not handled in accordance with mandatory provisions of the Railway Labor Act nor in accordance with the agreement in existence between the carrier and its employees. As found by the trial judge, at all times material hereto the appellee was a "carrier", the appellants were either "employees" or "representatives" and all parties were engaged in "commerce" as these terms are defined in the Railway Labor Act at 45 U.S.C.A. § 151. This being so, all parties were held to be subject to the provisions of that Act, and this is not now debated by the parties on this appeal. Under the Railway Labor Act a "dispute" can be classified as either "major" or "minor". Generally speaking, "major disputes" arise under 45 U.S.C.A. § 152 Seventh and, as stated by the Supreme Court in Elgin, Joliet & Eastern Ry. v. Burley, 1945, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886, aff'd on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928, they relate

"* * * to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past."

A "minor dispute", on the other hand, is defined by the Railway Labor Act, at 45 U.S.C.A. § 152 Sixth, to be

"* * * a dispute between a carrier or carriers and its or their employees, arising out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working
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