Emery Air Freight Corporation v. Local Union 295

• Decision Date: 24 September 1971
• Docket Number: Dockets 71-1561,71-1621.,1099,No. 1098,1098
• Citation: 449 F.2d 586
• Parties: EMERY AIR FREIGHT CORPORATION, Plaintiff-Appellee, v. LOCAL UNION 295, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

449 F.2d 586 (1971)

EMERY AIR FREIGHT CORPORATION, Plaintiff-Appellee, v. LOCAL UNION 295, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al., Defendants-Appellants.

Nos. 1098, 1099, Dockets 71-1561, 71-1621.

United States Court of Appeals, Second Circuit.

Argued August 11, 1971.

Decided September 24, 1971.

David Scribner, New York City (Herbert A. Simon, Valley Stream, N. Y., on the brief), for defendants-appellants.

Robert D. Foglia, New York City (Howard Franklin Cerny, New York City, on the brief), for plaintiff-appellee.

Before FEINBERG, MULLIGAN and TIMBERS, Circuit Judges.

FEINBERG, Circuit Judge:

Local Union 295 and its officers¹ appeal from various orders of the United States District Court for the Eastern District of New York, Walter Bruchhausen, J., which prohibit appellants from engaging in a strike and fine some of them $50,000 for contempt. The appeals arise out of a labor dispute between the Local and plaintiff-appellee Emery Air Freight Corporation. We conclude, first, that the court below lacked jurisdiction under the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq., to order a preliminary injunction in this controversy and, accordingly, we reverse that order. Second, because the order holding appellants in contempt was entered without a proper hearing, we remand that issue to the district court for reconsideration. The case illustrates that haste in court often makes waste, particularly in the heated and urgent atmosphere that so frequently characterizes labor disputes that culminate in a strike. Cf. New York Telephone Co. v. Communications Workers of America, 445 F.2d 39 (2d Cir. 1971).

The controversy arises out of the negotiations between Emery and Local Union 295 for a new collective bargaining agreement covering outside employees (truck drivers, helpers and platform men). Local 295 represents various workers in the air freight industry, including those employed by Emery. Local 295 and Emery have had an established collective bargaining relationship for many years, and in the past the agreements with Emery have been the same as those reached with other employers. Indeed, the agreements in the industry have apparently been uniform. Emery's last "outside contract" with Local 295 ran from November 30, 1967 to December 1, 1970, and contained a broad arbitration clause and a commitment by the parties not to strike or lock-out before exhausting the arbitration procedure. Negotiations for a new agreement began before the expiration date. In mid-December 1970, there was apparent agreement on basic economic terms, which were incorporated into a two-page supplemental agreement. The parties are in dispute over whether this document, together with the prior (1967-1970) contract, is the entire final agreement of the parties. Emery says that it is. Local 295 denies this. It claims that the parties had reached a basic understanding only on economic issues and that further negotiations were to come regarding language and non-economic provisions, including the grievance procedure which had been a source of trouble in the past between Emery and Local 295.

In any event, the new economic provisions were put into effect immediately and a few months later, Local 295 provided Emery with a complete printed final form of the agreement. Emery refused to sign it, claiming that it did not reflect the agreement of the parties. At a meeting on April 22 between the parties, Local 295 representatives pointed out that the contract in the printed form was being signed by other employers in the industry, of whom there were about 60, and threatened an immediate strike if Emery did not follow suit. The discussion degenerated into an impasse, and Local 295 called a strike. The parties continued to talk for a while on April 22 and apparently came close to, but did not achieve, agreement.

And so this litigation began. That same evening attorneys for Emery appeared before Chief Judge Mishler of the Eastern District and obtained a temporary restraining order enjoining defendants-appellants from engaging in a strike. The order referred to a verified complaint attached thereto, which alleged an action under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for damages and preliminary and permanent injunctive relief for alleged violations of the no-strike clause of a collective bargaining agreement between Emery and Local 295.

I

Before recounting the events of the hectic next few days in this litigation, it is helpful to pause to examine the current vitality of some of the provisions of the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq., since appellants rely upon that Act heavily. Only a few months ago, in New York Telephone Co., supra, we had occasion to scrutinize the Act. We pointed out, 445 F.2d at 49, that the "generality" of injunctions issued in labor disputes had been "one of the chief abuses that led to the Norris-LaGuardia Act." We emphasized that the Act still applies to all labor disputes in which a federal court can issue an injunction, that nothing in Boys Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), is to the contrary, and that although that decision allows an employer injunctive relief in a labor dispute, such relief is "limited to vindicating the arbitration process. See Note, 71 Colum.L.Rev. 336, 342-44 (1971)." Id. Thus, before an employer in a dispute with a union can obtain an injunction, there are a number of conditions to be satisfied. Section 7 of the Act, 29 U.S.C. § 107, lists a good many of them, including the requirements that a temporary restraining order "shall be effective for no longer than five days" and that such an order should not be issued except upon "testimony under oath, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing after notice," and upon the condition that:

Complainant shall first file an undertaking with adequate security * * * to be fixed by the court sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such * * * injunction, including all reasonable costs (together with a reasonable attorney\'s fee) and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.

Section 8 of the Act, 29 U.S.C. § 108, requires a showing by the complainant that he has made "every reasonable effort to settle" the dispute. Section 9, 29 U.S.C. § 109, limits the restraints of a temporary restraining order to those "specific act * * * expressly complained of in the * * * complaint."

Similarly, in Boys Markets, the Court emphasized the conditions precedent to obtaining an injunction in a labor dispute. In overruling Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962), the Court held that a strike may be enjoined only in carefully defined circumstances. It emphasized, 398 U.S. at 253-254, 90 S.Ct. at 1594:

Our holding in the present case is a narrow one. We do not undermine the vitality of the Norris-LaGuardia Act. We deal only with the situation in which a collective-bargaining contract contains a mandatory grievance adjustment or arbitration procedure. Nor does it follow from what we have said that injunctive relief is appropriate as a matter of course in every case of a strike over an arbitrable grievance. The dissenting opinion in Sinclair 370 U.S. at 228, 82 S.Ct. 1328 suggested the following principles for the guidance of district courts in determining whether to grant injunctive relief — principles we now adopt:

"A District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. * * *" (Emphasis in original.)

Thus, as we pointed out in New York Telephone Co., supra, 445 F.2d at 50, in order to enjoin a labor dispute, the court must find that both parties are required to arbitrate the dispute and the employer should be so ordered as a condition to such relief.

II

With this background in mind, we return to the chronicle of what transpired in the district court. The temporary restraining order already referred to was signed on April 22 at 10:30 at night without notice to defendants or a hearing. It purported to be effective until May 3, 1971, unless extended, did not order arbitration of any underlying dispute or condition employer relief upon its occurrence, and required plaintiff to file a bond of $1,000. On Friday, April 23, the restraining order was served upon the Local union and two of the four individual defendants. On the same day, defendants obtained an order to show cause, signed by Judge Mishler and returnable on Monday, April 26 at 10:00 a. m., why the temporary restraining order of April 22 should not be vacated. On Saturday, April 24, Emery obtained an order to show cause, signed by Judge Weinstein, also returnable on April 26, why defendants should not be held in contempt for failing to obey the April 22 temporary restraining order. The affidavits in support of the application alleged that Emery would suffer more than $60,000 loss each day the strike continued.

On the morning of April 26, the parties appeared before Judge Bruchhausen, and argument centered primarily on defendants' motion to vacate the April 22 temporary restraining order. Defendants claimed repeatedly that the...