Wooten v. Ohler

• Decision Date: 06 June 1962
• Docket Number: No. 19284.,19284.
• Citation: 303 F.2d 759
• Parties: Chester WOOTEN, Sheriff of Plaquemines Parish, Louisiana, et al., Appellants, v. John B. OHLER, an individual, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

303 F.2d 759 (1962)

Chester WOOTEN, Sheriff of Plaquemines Parish, Louisiana, et al., Appellants, v. John B. OHLER, an individual, et al., Appellees.

No. 19284.

United States Court of Appeals Fifth Circuit.

June 6, 1962.

Sidney W. Provensal, Jr., of Cahn & Provensal, New Orleans, La., for appellants.

Victor H. Hess, Jr., Jackson & Hess, New Orleans, La., for appellees.

Before RIVES, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This is an appeal from the granting of a preliminary injunction against a Louisiana Sheriff and his deputies, restraining them from interfering in any manner with peaceful picketing by union members. The injunction was granted on the grounds that the Sheriff had violated constitutional rights guaranteed by the Fourteenth Amendment and protected by the Civil Rights Statutes. Jurisdiction was determined to rest on 28 U.S. C.A. § 1343(3); 42 U.S.C.A. §§ 1981-1984. Specifications of error challenge this conclusion of law, and also bring into question the jurisdiction of the trial Court, and the propriety of the issuance of the injunction.

Finding no abuse of discretion by the trial Court, we affirm the issuance of the preliminary injunction. Because of the importance of the issues involved, and because the office of the preliminary injunction is merely to preserve the status quo pending a final determination of the rights of the parties involved, there should be a full hearing on the merits without delay.

So often simple facts generate complex legal questions of far-reaching importance. Such is the case here. Simply stated, Chester Wooten, Sheriff of Plaquemines Parish, Louisiana, made and enforced the rule in his bailiwick that "there was to be no picketing around there" of any non-union or open shop plant. Members of the Union, desiring to continue their peaceful picketing to publicize their grievances, sought and obtained the present injunction.

Houston Construction Company was engaged in the constructing of a gas compressor station for Tennessee Gas Transmission Company at Happy Jack, Louisiana, in Plaquemines Parish. The root of the present suit is the fact that the Company had no labor contract and refused to enter into any agreement or negotiations with the Union. The Petitioners¹ are members of the Union,² which is affiliated with the Building and Construction Trades Council of New Orleans and Vicinity.³

On July 10, 1961, the Executive Secretary of the Council met with the Company's superintendent and attempted to negotiate a labor agreement. The offer was flatly refused with the statement that the job was a non-union, open shop job. Thereafter the Council contacted the Tennessee Gas Transmission Company, but was informed that the matter of a union agreement between the contractor and its employees was solely in the hands of that Company.

Failing in its efforts to obtain a labor agreement, the Council authorized picketing with a sign which read:

"Houston Construction Company does not have a written agreement with the Building and Construction Trades Council of New Orleans and Vicinity, AFL-CIO."

Two of the Petitioners established a picket line at the Happy Jack construction site on the morning of August 1, 1961. The picketing was entirely peaceful. The pickets walked only on the shoulder of the public highway, did not encroach upon private property, made no effort to obstruct ingress or egress to or from the job by workers, other persons or vehicles, and engaged in no conversation with anyone save the Deputy Sheriffs. Their "message" was confined to their own presence and the single sign. Within a couple of hours two armed Deputies showed up. These officers in words of plain meaning revealed the reason for the Sheriff's actions: "Well, boys, this is no union job and Sheriff Wooten has given me orders that you'll have to move on."

On the morning of August 3, 1961, a similar picket line was established. But this time the picketers were under arrest within 15 minutes on a charge of disturbing the peace. One Deputy testified that he had called for the two Deputies who made the arrest "under the instructions of Sheriff Wooten * * *" that "There was to be no picketing around there * * *." The sole motivation for this forcible interference was made doubly clear by the officers during the ride to jail. "You all," the Louisiana Deputy said, "were warned not to picket. This is a non-union job and no picketing is allowed." And then as a sort of gentle reminder that this was simply retribution, he added, "You were warned not to picket."

On August 31, 1961, after a hearing, the preliminary injunction⁴ was issued against the Sheriff and his Deputies. The hearing by express consent was on affidavits of the plaintiffs, brief oral cross examination of a few of them, and the oral testimony of one Deputy Sheriff.

At the outset, and as done so many times recently, we find it appropriate to emphasize the limited scope of review of a preliminary injunction. See Dronet v. Tucker, 5 Cir., 1961, 300 F.2d 559; Barnwell Drilling Co., Inc. v. Sun Oil Co., 5 Cir., 1962, 300 F.2d 298; Detroit Football Co. v. Robinson, 5 Cir., 1960, 283 F.2d 657. The Sheriff asks us to agree with him that the trial Judge was wrong. But that is not precisely the issue before us. The granting or denying of a preliminary injunction is within the discretion of the trial Judge, "in the exercise of which the court balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction." Yakus v. United States, 1944, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834. Consequently, we do not review the intrinsic merits of the case as such. Rather, our inquiry is whether there has been an abuse of discretion. Our review of the probable merits does not go to the question of whether we would ultimately hold that the trial Judge was right or wrong, but only to the ascertainment of whether his action was within his broad range of discretion. Of course, like many other factors unnecessary here to itemize, the probable ultimate outcome of the case, or the likely ultimate holding on identifiable, critical legal points will be important matters for evaluation in the inquiry concerning abuse of discretion.

But within even that limited scope several contentions advanced are of such a nature that if they are demonstrated now to be correct to a substantial certainty, there would be no point in a trial on the final merits since no likely trial developments could overcome them.

As the first of such insuperable barriers, it is urged that the District Court had no jurisdiction to hear this case on the ground that the relief prayed for lies exclusively within the jurisdiction of the National Labor Relations Board. But this overlooks several things. The first is that this case is not between an employer and a union. The second is that in this case one of the parties is an agent of the sovereign state. No case has been cited to us, nor have we found one, in which the Labor Board undertook to adjudicate the rights and duties of state peace officers. Cf. § 2, 29 U.S. C.A. § 152(2). More than that, the rights sought to be enforced by this injunction are not those arising under the Labor Management Relations Act or related laws as such. The rights asserted here are those claimed to be secured by the Constitution and for which a legal sanction and jurisdiction is afforded by the Civil Rights Statutes. The Board, with all of its capacity for handling labor disputes, has not been called upon by Congress to look into alleged deprivations of constitutional and civil rights in this situation. Those matters, at least up to now, have been left in the hands of the Courts.

Next, the Norris-LaGuardia Act is said to preclude the present injunction since the purpose of that Act was to confine within a narrow compass the issuance of injunctions in labor disputes by Federal Courts. It is argued more specifically that the requirements of § 7, 29 U.S.C.A. § 107, have not been met. But again, the question whether it was error for the Judge to conclude, as he did, that the proof showed that the requirements of § 7 had been met is not directly before us. As we have stated, this is but one factor in our narrow review of the Judge's broad discretion. Whatever might ultimately be the holding on the adequacy of the evidence on this point, it was certainly sufficient to override any contention that it was an abuse of the Judge's discretion to make this interim conclusion. Insofar as the contention rests upon a question of that law, uninfected by a factual dispute, we think that the Act on its face does not include the type of case before us. The definition section, § 13, 29 U.S.C.A. § 113, speaks in terms that do not appear to match our situation. Broad as it is, § 13(a) says that a case involves or grows out of a labor dispute when the dispute is (a) between employers and employees, or (b) between employees and employees. That is not the nature of this controversy. Section 13(b) defines a "person participating or interested in a labor dispute" as one against whom relief is sought and who is engaged in the same industry in which the dispute occurs. A fair reading of this section would hardly include state peace officers. Section 13(c) defines a "labor dispute" as "any controversy concerning terms or conditions of employment." But the present dispute involves terms and conditions of employment only indirectly and then not between parties to such employment. Rather, this controversy concerns the asserted right to picket and the alleged deprivation of that right, not by the employer, or by one under contract to the employer, but by a state officer acting under color of his office.

Failing on these two contentions, it is finally urged that this picketing may not be elevated to a constitutional plane to thereby bring an infringement of such "rights" within the Civil...