Opinion
Civ. A. No. 10414.
October 27, 1960.
Steptoe Johnson, N. Thompson Powers, Washington, D.C., Cobb Wright, Joseph V. Ferguson, II, New Orleans, La., for plaintiff.
Cassibry, Jackson Hess, Victor H. Hess, Jr., New Orleans, La., for defendants United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of New Orleans and Vicinity, Local No. 2258, United Brotherhood of Carpenters and Joiners of America, and defendant Pile Drivers Local Union No. 2436, United Brotherhood of Carpenters and Joiners of America.
Dodd, Hirsch, Barker Meunier, Thomas J. Meunier, C. Paul Barker, New Orleans, La., for defendants International Association of Bridge, Structural Ornamental Iron Workers, AFL-CIO, and Local Union No. 58 of the International Association of Bridge, Structural Ornamental Iron Workers, AFL-CIO.
The basic question presented here is whether the court has jurisdiction under Section 301 of the Taft-Hartley Act to enforce the "no-strike" clause of a collective bargaining agreement despite the categorical ban on enjoining peaceful strikes announced by Section 4(a) of the Norris-LaGuardia Act.
In view of the conclusion reached, it is unnecessary to resolve other differences between the parties. For the purpose of this opinion, it is assumed, without deciding, that binding contracts between plaintiff and the defendant Unions were in existence; that these agreements contained "no-strike" clauses; that the Carpenters have threatened to strike; and that such a strike would constitute a breach of their contract with plaintiff. It is likewise unnecessary to reach the question whether, if the threat of striking constitutes an "unfair labor practice" within the meaning of Section 8(b)(4)(D) of the Taft-Hartley Act, 29 U.S.C.A. § 158(b)(4)(D), the jurisdiction of the N.L.R.B. in such matters prevents the court from acting under Section 301 of the Act. See Lodge No. 12, Dist. No. 37, International Ass'n of Machinists v. Cameron Iron Works, 5 Cir., 257 F.2d 467.
29 U.S.C.A. § 185(a), which provides as follows:
"Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties."
29 U.S.C.A. § 104(a), which provides as follows:
"No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
"(a) Ceasing or refusing to perform any work or to remain in any relation of employment;"
It is plain that this is a "case involving or growing out of [a] labor dispute" within the meaning of the Section. See 29 U.S.C.A. § 113(a), (b) and (c). Plaintiff does not seriously contend otherwise.
Before Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, it was generally conceded that no such power had been given to federal courts by the Taft-Hartley Act. See W.L. Mead, Inc. v. International Brotherhood, etc., 1 Cir., 217 F.2d 6; Alcoa S.S. Co. v. McMahon, D.C.S.D.N.Y., 81 F. Supp. 541, affirmed 2 Cir., 173 F.2d 567. See also Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U.S. 437, 442, 68 S.Ct. 630, 92 L.Ed. 792. But since that decision impressive arguments have been marshalled in favor of re-interpreting Section 301 so as to read in it an implied exception to the prohibition of the Norris-LaGuardia Act. It is said that the two statutes must be "accommodated" and the Railway Labor Act, 45 U.S.C.A. § 151 et seq., cases are cited as precedent. See Brotherhood of Railroad Trainmen v. Chicago R. I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622. See also Virginian Ry. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283; Brotherhood of Locomotive Engineers v. M.-K.-T.R. Co., 363 U.S. 528, 80 S.Ct. 1326, 4 L.Ed.2d 1379. Also invoked is the holding of Lincoln Mills that the procedural requirements of Section 7 of the Norris-LaGuardia Act, 29 U.S.C.A. § 107, are "inapposite" in a suit under Section 301 of Taft-Hartley for a mandatory injunction to compel an employer to arbitrate. And heavy reliance is placed on the statement in Lincoln Mills, repeated in subsequent cases (United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 567, 80 S.Ct. 1363, 4 L.Ed.2d 1432; United Steelworkers of America v. Warrior Gulf Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 4 L.Ed. 2d 1409, note 4), that the arbitration clause is the quid pro quo given by the employer in return for the no-strike clause agreed to by the union, from which it is argued that the latter provision is also specifically enforceable.
But none of this amounts to a pronouncement that the express prohibition of the Norris-LaGuardia Act will be cast aside to permit enjoining a strike when such action violates a provision of the collective bargaining agreement. The Railway Act exception was made in the light of an explicit provision in the later enactment making arbitration of "minor disputes" compulsory and declaring the Adjustment Board's decision "binding upon both parties," and it has been narrowly confined within the limits of that requirement. See Order of R.R. Telegraphers v. Chicago N.W.R. Co., 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774.
45 U.S.C.A. § 153, First (m). See Brotherhood of Trainmen v. Chicago R. I.R. Co., supra, 353 U.S. 33-39, 77 S. Ct. 635.
As for Lincoln Mills, an obvious distinction exists between the holding there that Section 7 of the Norris-LaGuardia Act may be circumvented and the suggestion here that Section 4 of the same Act should be ignored. It is one thing to get around procedural rules when they appear "inapposite" and quite another to ride roughshod over a categorical prohibition. Nor is the argument based on the balancing of arbitration and no-strike provisions compelling. Despite the apparent attraction of symmetrical solutions, there may be good reasons for granting specific enforcement in one case and not in the other. Several members of the Court have already disassociated themselves from what may be called the " quid pro quo doctrine" and even the majority in a recent opinion cites as an example of the proper sanction for the breach of a no-strike clause a case in which only damages were awarded. See United Steelworkers of America v. American Mfg. Co., supra, 363 U.S. 567, note 4, 80 S.Ct. 1363, citing Structural Steel Ornamental Iron Ass'n of New Jersey, Inc. v. Shopmens Local Union, D.C.D.N.J., 172 F. Supp. 354.
See, e.g., The Supreme Court, 1956 Term, 71 Harv.L.Rev. 83, 174, 176, n. 511.
See Mr. Justice Brennan, joined by Justices Frankfurter and Harlan, concurring in United Steelworkers of America v. American Mfg. Co., supra, 363 U.S. 564 ff, 80 S.Ct. 1363.
Thus, it is not at all clear what the Supreme Court will hold when presented with the question posed here. Reading very broadly the directive to resort to "judicial inventiveness" in "fashioning a remedy that will effectuate" "the policy of our national labor laws," one Court of Appeals has interpreted Lincoln Mills as authorizing a lifting of the Norris-LaGuardia ban on anti-strike injunctions when there is a breach of a covenant not to strike. Chauffeurs, Teamsters and Helpers Local 795 v. Yellow Transit Freight Lines, 10 Cir., 282 F.2d 345. Another Circuit has ruled otherwise, basing its opinion, with what seems appropriate reliance, on the fact that in adopting the Taft-Hartley law the Congress deleted the House provisions making the Norris-LaGuardia Act prohibitions inapplicable to suits under § 301. A.H. Bull Steamship Co. v. Seafarers' Internat'l Union, 2 Cir., 250 F.2d 326. But it is no use predicting. Even if this court read the weather vane as indicating a judicial overruling of the Norris-LaGuardia Act in these situations and thought that solution desirable, it could not presume to ignore the plain mandate of applicable statute in order to achieve a result in accord with its private view of what the law ought to be. Perhaps that privilege belongs to a higher court. Or perhaps Congress itself should be permitted to do its own legislating.
See also Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1484-1485.
See Wellington, Judge Magruder and the Labor Contract, 72 Harv.L.Rev. 1268, 1277-1281.
Application for injunction denied.