Truck Drivers Local Union No. 807, Intern. Broth. of Teamsters v. Bohack Corp.
| Citation | 541 F.2d 312 |
| Decision Date | 09 August 1976 |
| Docket Number | 1066,D,Nos. 881,s. 881 |
| Parties | 93 L.R.R.M. (BNA) 2001, 79 Lab.Cas. P 11,685 TRUCK DRIVERS LOCAL UNION NO. 807, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Plaintiff-Appellant, v. The BOHACK CORPORATION, Defendant-Appellee. TRUCK DRIVERS LOCAL UNION NO. 807, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Petitioner, v. Honorable Jacob MISHLER, Chief Judge, United States District Court, Eastern District of New York, Respondent. ockets 75-7694, 76-3003. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
J. Warren Mangan, Long Island City, N.Y., for plaintiff-appellant-petitioner.
Frederick T. Shea, New York City (Roger J. Karlebach and Kelley, Drye & Warren, New York City, of counsel), for defendant-appellee.
Before LUMBARD, HAYS and GURFEIN, Circuit Judges.
We have before us two consolidated actions: (1) an appeal by Truck Drivers Local Union No. 807 ("the union"), from an order of the United States District Court for the Eastern District of New York (Chief Judge Mishler) dismissing the union's petition to confirm a grievance award; and (2) a petition for a writ of mandamus directing the District Court to dissolve an injunction issued against the union, to stay its remand of certain issues to the bankruptcy judge, and to compel immediate submission of certain issues to the grievance procedure provided for in the collective bargaining agreement. For reasons that appear below, we reverse the district court's grant of a preliminary injunction against the union under our mandamus jurisdiction, and affirm the rest of the district court's order.
In March, 1973 the Bohack Corporation ("Bohack") and the union entered into a three-year collective bargaining agreement under the terms of the National Master Freight Agreement and the New Jersey-New York Area General Trucking Supplemental Agreement. On July 30, 1974 Bohack filed a petition under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq., and by order of the same date was allowed to continue to operate its business as a "debtor-in-possession." 1 At that time, more than 120 members of the union were employed by Bohack as truckdrivers.
On December 16, 1974, four and one-half months after the petition was filed, Bohack decided to terminate most of its operations at the Bohack Square Meathouse and to receive certain food products from Shopwell's warehouses in trucks operated by Shopwell employees who were members of another local union. As a result, more than sixty Bohack truckdrivers lost their jobs. The union immediately filed a grievance against Bohack, contending that Bohack had breached Article 32 of the Master Agreement which purported to limit the right of the Employer to transfer to others work done by members of the local union. 2 At a meeting of the New York City Joint Local Grievance Committee held in December, Bohack argued that this grievance could not be decided by the Local Committee but was a matter for the National Grievance Committee since it involved an interpretation of the National Master Agreement. 3
Though at first it had found otherwise, 4 the committee, on rehearing, found, on May 16, 1975, that Bohack had violated Article 32 of the agreement, and entered an award favorable to the union ordering Bohack to cease and desist from having its bargaining unit work subcontracted out. Neither Bohack nor the union had sought permission of the bankruptcy judge to submit the dispute to the grievance procedure.
The next stage in the eventual elimination of all jobs held by Bohack truckdrivers was Bohack's change in grocery suppliers, from the Filigree Company to the companies of Krasdale and Bozzuto, in May, 1975. The Krasdale deliveries were made by its own drivers, and additional Bohack workers thus lost their jobs.
On May 27, 1975, the union instituted a suit in state court to confirm the grievance award, which Bohack removed to the federal court. Bohack refused to comply with the award and in June, 1975, when Buzzuto drivers took over its deliveries, more Bohack truckdrivers were out of work. By the end of June, 1975, only 32 members of the union were still employed. The union was advised in late June that Bohack intended to terminate the remaining 32 truckdrivers on July 3, 1975. The union struck and began to picket on June 30, 1975. The same day, on motion of Bohack, the bankruptcy judge (Judge Parente) issued a temporary restraining order against the strike, and on July 16, 1975, he issued a preliminary injunction restraining the union from engaging in picketing or strikes against Bohack, basing his jurisdiction on Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185.
On July 18, 1975, the remaining 32 workers were terminated. On that day, Bohack also moved for the first time to reject the collective bargaining agreement under § 313 of the Bankruptcy Act, 11 U.S.C. § 713.
The union appealed to the district court from the grant of the preliminary injunction. Chief Judge Mishler signed an order to show cause but struck the provision suspending Judge Parente's preliminary injunction. Chief Judge Mishler informed counsel that he doubted the jurisdiction of the Bankruptcy Court under § 301, and suggested that a complaint be filed under § 301 in the district court. Apparently no new complaint was filed by Bohack.
The union started a new action, however, pursuant to § 301(a), 29 U.S.C. § 185(a), to compel Bohack ". . . to specifically perform its collective bargaining agreement with plaintiff and to submit any grievances between them to grievance procedure." Bohack's answer included a counterclaim seeking arbitration if authorized by the Bankruptcy Court pursuant to Bankruptcy Rule 919(b), discussed infra.
On November 19, 1975, Chief Judge Mishler vacated the preliminary injunction issued by the bankruptcy judge but issued a temporary restraining order against the union. 5 He dismissed the union's petition to confirm the arbitrator's award, and remanded to the bankruptcy judge "the issue of the advisability of granting the debtor leave to arbitrate." A hearing was set for November 26 to decide the employer's motion for preliminary injunctive relief. On November 25, Judge Costantino signed an order to show cause why the temporary restraining order should not be dissolved on the ground that it was entered in violation of the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq.
The union's motion to dissolve the temporary restraining order and the employer's motion for preliminary injunctive relief were both heard by Chief Judge Mishler on November 26. He denied the union's motion to dissolve the temporary restraining order and decided to "continue the terms of the t.r.o." issued on November 19, until the bankruptcy judge should decide whether to allow arbitration of the subcontracting dispute under Bankruptcy Rule 919(b) and whether to permit Bohack to reject its collective bargaining agreement under § 313(1) of the Bankruptcy Act, 11 U.S.C. § 713(1). 6
On December 12, 1975, the union filed a notice of appeal from the judgment dismissing the union's petition to confirm the arbitration award. The union did not appeal from the order continuing the t.r.o. On December 30, 1975, the union filed its petition for the writ of mandamus described above. By order of January 16, 1976, the appeal and the petition were consolidated.
The union did not appeal from the district court's grant of injunctive relief against its activities, apparently on the theory that what had been issued remained a nonappealable temporary restraining order. See Grant v. United States, 282 F.2d 165 (2 Cir. 1960). However, the words used are not controlling on whether the order amounts to a grant of preliminary injunctive relief appealable under 28 U.S.C. § 1292(a) when the practical effect of the refusal to dissolve the temporary restraining order is the equivalent of the grant of preliminary injunctive relief. Morning Telegraph v. Powers, 450 F.2d 97, 99 (2 Cir. 1971), cert. denied, 405 U.S. 954, 92 S.Ct. 1170, 31 L.Ed.2d 231 (1972); Hoh v. Pepsico, Inc., 491 F.2d 556, 560 (2 Cir. 1974). Accord, Telex Corp. v. International Business Machines Corp.,464 F.2d 1025 (8 Cir. 1972) (per curiam). When the district court extended for an indefinite period of time the terms of the temporary restraining order issued on November 19 and refused to dissolve it, the order became appealable as the grant of a preliminary injunction. 7 However, the union failed to file a timely appeal from this order, and thus we lack appellate jurisdiction to review its validity.
The union does seek a writ of mandamus, however, directing the district court to vacate its order restraining the union from engaging in activities protected by Section 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104. Although such a writ is an extraordinary remedy, and is not merely a substitute for appeal, Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943), we believe in this case the writ should issue because the district court acted beyond its jurisdiction in restraining the union. "The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Ass'n,supra, 319 U.S. at 26, 63 S.Ct. at 941; Bankers Life & Cas. Co. v. Holland,346 U.S. 379, 384, 74 S.Ct. 145, 98 L.Ed. 106 (1953); DeBeers Consol. Mines Ltd. v. United States, 325 U.S. 212, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945); Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014 (1943).
The Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, deprives the federal courts of jurisdiction to issue temporary restraining orders or injunctions in any case "involving or growing out of a labor dispute," except "in strict conformity with...
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