Central Vermont Ry., Inc. v. Brotherhood of Maintenance of Way Employees

• Decision Date: 27 June 1986
• Docket Number: No. 86-5245,86-5245
• Citation: 793 F.2d 1298
• Parties: 122 L.R.R.M. (BNA) 2831, 122 L.R.R.M. (BNA) 2895, 253 U.S.App.D.C. 312, 104 Lab.Cas. P 11,875 CENTRAL VERMONT RAILWAY, INC., Appellant, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1298

793 F.2d 1298

122 L.R.R.M. (BNA) 2831, 122 L.R.R.M. (BNA) 2895,

253 U.S.App.D.C. 312, 104 Lab.Cas. P 11,875

CENTRAL VERMONT RAILWAY, INC., Appellant, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, et al., Appellees.

No. 86-5245.

United States Court of Appeals, District of Columbia Circuit.

Argued May 2, 1986.

Decided May 14, 1986.

Opinion June 27, 1986.

Edward A. Brill, New York City, appearing pro hac vice by special leave of Court, with whom Donald Savelson, Washington, D.C., and Mary P. Sclawy, Detroit, Mich., were on brief, for appellant.

Harry A. Rissetto, with whom William J. Curtin, Thomas E. Reinert, Jr., and Robert D. Manfred, Jr., Washington, D.C., were on brief, for amici curiae, Alton & Southern Ry. Co., et al., urging reversal.

James L. Linsey, New York City, with whom Louis P. Malone, Washington, D.C., John S. Bishop, and Michael Barrett, New York City, were on brief, for appellees. Franklin K. Moss, New York City, also entered an appearance for appellees.

Before EDWARDS, STARR, and SILBERMAN, Circuit Judges.

PER CURIAM.

This cause came on to be heard on appeal from the United States District Court for the District of Columbia and was briefed and argued by counsel on an expedited basis. It is

ORDERED and ADJUDGED by the Court that the judgment from which this appeal is taken is affirmed. The Norris-LaGuardia Act divests the federal courts of jurisdiction to enjoin specified acts "in any case involving or growing out of any labor dispute." 29 U.S.C. Sec. 104 (1982). The secondary picketing at issue in this case falls within the plain terms of the Act, id. Sec. 104(e), and whether or not the target of this picketing is "substantially aligned" with the picketing individuals' employer is irrelevant. Accord Smith's Management Corp. v. International Bhd. of Elec.

                Workers, 737 F.2d 788 (9th Cir.1984).  That such picketing is alleged to violate the Interstate Commerce Act does not alter this result.   See Order of R.R. Telegraphers v. Chicago & N.W.R.R., 362 U.S. 330, 339 n. 15, 80 S.Ct. 761, 766 n. 15, 4 L.Ed.2d 774 (1960).  Moreover, because the union activity here is not subject to the dispute resolution mechanism of the Railway Labor Act, 45 U.S.C. Sec. 151 et seq.  (1982), neither may an injunction issue under the authority of Chicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971)
                

An opinion setting forth the Court's reasoning more fully will follow. It is

FURTHER ORDERED, by this Court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See Local Rule 14, as amended on November 30, 1981 and June 15, 1982. This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

OPINION

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

The question to be decided is whether the Norris-LaGuardia Act, 29 U.S.C. Secs. 101-115 (1982), prevents a federal court from enjoining a railroad union from engaging in "secondary picketing" against a carrier. For the reasons stated herein, we conclude that it does.

The Brotherhood of Maintenance of Way Employees ("BMWE") represents certain railroad workers employed by the Maine Central Railroad Company and the Portland Terminal Company. Since March 1986, BMWE's members have been on strike against these companies and have been subject to a lock-out. In April, BMWE began picketing at the yards of other railroads. While the striking workers had no direct dispute with these railroads, they sought to pressure them to cease doing business with their employers. The railroads targeted by this "secondary picketing" brought suit below, claiming that BMWE's activity violated the Railway Labor Act and the Interstate Commerce Act, and sought an injunction. The district judge initially denied relief on the ground that the plaintiff railroads had not demonstrated irreparable harm. The appellant Central Vermont Railway, Inc., then filed a separate motion for preliminary injunction, claiming that its operations had ground to a halt as a result of the picketing. Required thus to reach the legal issues presented, the district court held that the Norris-LaGuardia Act barred injunctive relief. In light of the urgency of this controversy, we agreed to hear Central Vermont's appeal on an expedited basis. ¹

I.

In the early decades of this century, the federal courts undertook the task of abating labor unrest, using various federal and state law doctrines to enjoin workers from participating in concerted activities viewed as wrongful. See F. FRANKFURTER & N. GREENE, THE LABOR INJUNCTION 5-17 (1930). The choices about desirable public policy that judges necessarily made in applying these legal doctrines to the world of labor relations, however, came to be widely viewed as an exercise in judicial activism. The Congress, "intent upon taking the federal courts out of the labor injunction business," Marine Cooks & Stewards v. Panama S.S. Co., 362 U.S. 365, 369, 80 S.Ct. 779, 783, 4 L.Ed.2d 797 (1960), responded with the Norris-LaGuardia Act, Pub.L. No. 72-65, 47 Stat. 70 (1932) (current version at 29 U.S.C. Secs. 101-115 (1982)). The Act, a singularly powerful instrument, withdrew the federal courts' jurisdiction to enjoin numerous forms of self-help "in any case involving or growing out of any labor dispute...." 29 U.S.C. Sec. 104 (1982). Among the acts that federal courts have since been powerless to enjoin is "giving publicity to ... any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence." Id. Sec. 104(e) (emphasis added).

Disputing the apparent applicability of this jurisdictional bar to the controversy before us, Central Vermont argues that this case does not "involv[e] or grow[ ] out of any labor dispute" under the Act. Central Vermont insists that because it is a neutral bystander, not substantially aligned with the strikers' employers, the picketing it seeks to have enjoined is not part of a "labor dispute" covered by the Act. This theory draws support from decisions of the Fifth and Eighth Circuits, which interpret the Act as reaching only those activities in furtherance of employees' economic self-interest; this self-interest, in turn, is regarded as justifying secondary picketing only where the target of the picketing is substantially aligned with the picketing individuals' employer. See Brotherhood of R.R. Trainmen v. Atlantic Coast Line R.R., 362 F.2d 649 (5th Cir.), aff'd by an equally divided Court, 385 U.S. 20, 87 S.Ct. 226, 17 L.Ed.2d 20 (1966); ² Ashley, Drew & Northern Ry. v. United Transp. Union Local No. 1121, 625 F.2d 1357 (8th Cir.1980). The Ninth Circuit, however, has recently rejected this interpretation of the Norris-LaGuardia Act. See Smith's Management Corp. v. Local 357, IBEW, 737 F.2d 788 (1984).

We follow the Ninth Circuit in rejecting the proposed "economic self-interest/substantial alignment" test. The test finds no place in the Act's language and is inconsistent with its expansive terms. We note in particular that the Act's proscriptions extend beyond cases that immediately "involve" labor disputes to those that "grow out of" such disputes. ³ The statutory language simply provides no warrant for a court to exclude secondary activity from the Act's purview in accordance with its views of a union's proper "economic self-interest."

Central Vermont nonetheless contends that the Act's drafters intended to incorporate the economic self-interest test. It claims that the test is stated in Justice Brandeis' dissenting opinion in Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349 (1921), which, in turn, was influential among the Act's proponents. In Duplex, the Court construed the anti-injunction provisions of the Clayton Act as limited to the context of "primary," employer-employee disputes. In response, Justice Brandeis advanced the view that the statute broadly shielded "the right of industrial combatants to push their struggle to the limits of the justification of self-interest...." Id. at 488, 41 S.Ct. at 184. We cannot believe, however, that the Congress that passed the Norris-LaGuardia Act--or, for that matter, Justice Brandeis ⁴--intended for courts to evaluate what activities a union's legitimate self-interest justifies. That was precisely the state of affairs that they wished to bring to a close. ⁵ It seems to us that the vice of the economic self-interest test is that it puts the courts back in the business of second-guessing a union's decisions about how best to pursue its members' welfare. See Smith's Management, 737 F.2d at 791; Burlington N. R.R. v. BMWE, 793 F.2d 795, 804 (7th Cir.1986).

To be sure, it might be thought that the "substantial alignment" aspect of the test sufficiently reduces judicial discretion in delimiting the scope of the Norris-LaGuardia Act with respect to secondary activity. But this standard, apparently imported from the "ally" doctrine applied under the secondary boycott provisions of the National Labor Relations Act, is itself of suspect pedigree. We have found no evidence that the drafters of the Norris-LaGuardia Act contemplated such distinctions between permissible and impermissible secondary activity. Absent the guidance of Congress or the attention of an administrative agency with expertise in the field, moreover, judicial efforts to draw such distinctions would be untenable; as the Court has observed, "[n]o cosmic principles announce the existence of secondary conduct, condemn it as an evil, or delimit its boundaries." Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 386, 89 S.Ct. 1109, 1119, 22 L.Ed.2d 344 (1969).

Any doubts that might linger about the breadth of the Act's withdrawal of jurisdiction, moreover, are dispelled...