Before SPARKS, Chief Judge, and MAJOR and KERNER, Circuit Judges.
This action was brought under § 16(12) of Part I of the Interstate Commerce Act, 49 U.S.C.A. § 16(12). By their complaint plaintiffs seek a permanent injunction to restrain violation by defendants, The New York Central Railroad Company, The Chicago River and Indiana Railroad Company and Chicago Junction Railway Company (hereinafter respectively referred to as the Central, the River Road and the Junction), of an order issued by the Interstate Commerce Commission on May 16, 1922, which authorized, subject to certain conditions, the acquisition of the Central and the River Road by purchase of the latter's capital stock, and acquisition by the River Road of control, by lease, of the Junction. On a former appeal to this court, we held that the court erred in issuing a temporary restraining order against Junction; hence, for the purposes of this appeal, we need not be concerned further with this defendant. Baltimore & Ohio Railroad v. Chicago Junction Ry., 7 Cir., 156 F.2d 357. The River Road operates a switching railroad. Its holdings include all the tracks connecting various trunk lines with the Union Stock Yards at Chicago, Illinois. The condition which was alleged to have been violated was condition 3 in the Commission's report, which provides: "3. The present traffic and operating relationships existing between the Junction and River Road and all carriers operating in Chicago shall be continued, in so far as such matters are within the control of the Central."
The complaint alleged that the practice of allowing plaintiffs to use River Road's tracks with their own power and crews was in effect on May 16, 1922, and continuously thereafter to February 1, 1946; that on or about January 25, 1946, the Central and the River Road notified plaintiffs that after February 1, 1946, plaintiffs would not be permitted to move the stock cars, and that the cars would be moved on the line of the River Road by the power and crews of the River Road from the points of interchange with plaintiffs, and that at such points they would be delivered by the River Road to plaintiffs.
On February 1, 1946, the Central and the River Road proceeded to act in accordance with the notice, and on February 12, 1946 this suit was brought to compel obedience by defendants to condition 3, it being alleged that the aforesaid action of defendants pursuant to the notice of January 25, 1946 was in violation of condition 3. February 21, 1946 the Commission filed its complaint of intervention, alleging that the action of the Central and the River Road in making the change in operations "constituted and was discontinuance in part of 'the present traffic and operating relationships existing between the * * * River Road' and the plaintiffs herein" and was in violation of the order of May 16, 1922; that by § 5(8) of the Interstate Commerce Act, 49 U.S.C.A. § 5(8), the Commission was authorized to seek, and the District Courts of the United States were given jurisdiction to afford, injunctive relief to restrain violation of an order issued under § 5 of the Act. The complaint prayed that preliminary and permanent injunctions be entered restraining the violation of the order of May 16, 1922 and condition 3 thereof.
For the purpose of a hearing on the motion for a preliminary injunction the parties entered into a stipulation of facts in which the facts alleged in the complaint were admitted as true. The stipulation also recited that the Brotherhood of Railroad Trainmen (appellant herein), bargaining agent under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., for River Road trainmen, having failed to settle certain disputes - among others a demand, claimed by Brotherhood to be based upon a contract with the River Road, that River Road trainmen be given the work of moving and switching the livestock cars - notified the River Road that unless the disputes were settled before January 23, 1946, River Road trainmen would go out on strike. Thereupon River Road made an agreement with Brotherhood which provided that the work of moving and switching livestock cars be given to River Road trainmen.
Neither the Brotherhood nor any of the employees it represents was named in the complaint as a defendant. On March 14, 1946, no notice having been served on Brotherhood and no representative of Brotherhood appearing, the District Court made findings of fact and conclusions of law. The court found that the order of May 16, 1922 had been violated and entered a preliminary injunction enjoining defendants from failing and neglecting to obey said order of May 16, 1922 with respect to the transportation of livestock other than hogs and sheep from said Union Stock Yards, and from violating condition 3 of said order in the like respect, and commanding them to permit plaintiffs to move their said cars over the line of the River Road as had been the practice prior to February 1, 1946.
On May 20, 1946 Brotherhood filed its motion to intervene as a party defendant. The motion was denied and Brotherhood appealed. The Supreme Court reversed the District Court and held that Brotherhood had an absolute right to intervene under § 17(11) of the Interstate Commerce Act, 49 U.S.C.A. § 17(11). See Brotherhood of Railroad Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 67 S. Ct. 1387, 91 L. Ed. 1646. September 26, 1947, Brotherhood was permitted to intervene. It immediately moved to vacate the injunction, to assess damages against plaintiffs, and for a summary judgment, and, on September 29, 1947, moved for an order requiring plaintiffs to give additional security for the preliminary injunction conditioned as provided in the Norris-LaGuardia Act. 29 U.S.C.A. § 107(e). The District Court, without making and findings of fact or conclusions of law, entered an order overruling Brotherhood's motions but directed plaintiffs to give an additional bond in the sum of $25,000, conditioned upon the payment of such damages as the River Road trainmen might be found to have sustained after October 13, 1947 because of the issuance of the preliminary injunction, and provided it should be found that the injunction was improvidently issued. On March 25, 1948 Brotherhood filed its notice of appeal "from so much of the order * * * as denies the motion of the Brotherhood of Railroad Trainmen to vacate and dissolve the preliminary injunction * * * and from so much of said order as * * * requires the plaintiffs to file their bond only in the sum of $25,000.00 and conditioned as provided in said order."
Appellant's primary contentions are that the suit involved a labor dispute within the meaning of the Norris-LaGuardia Act and that the court lacked jurisdiction because of the absence of indispensable parties, i.e., failure to join as parties to the suit the River Road trainmen.
As to the first contention, the argument is, that when the 1922 order was made by the Commission, trainmen employees of River Road were working under a collective bargaining agreement which entitled them to perform all the work of trainmen on the lines of their employers; that Brotherhood, the bargaining agent under the Railway Labor Act for the River Road trainmen, made a demand, based upon its contract with the River Road, that these trainmen be given the work of moving and switching the livestock cars over the River Road trackage. It threatened a strike unless this demand was met.Under this threat the dispute was settled January 23, 1946, on the agreement of River Road to assign to its employees the work connected with such movements of cattle, effective February 1, 1946. This agreement, it is argued, necessarily carried with it recognition of the right of River Road employees to perform that work, and since plaintiffs have not complied with the Norris-LaGuardia Act, the injunction must be dissolved. In support of its argument appellant cites a number of cases. It relies, principally upon Lee Way Motor Freight v. Keystone Freight Lines, 10 Cir., 126 F.2d 931, and Brotherhood of Railroad Trainmen v. Baltimore & Ohio Railroad, 331 U.S. 519, 67 S. Ct. 1387, 91 L. Ed. 1646.
On the other hand, appellees contend that the suit did not grow out of a labor dispute. They insist it involved and grew out of a violation of the Commission's order.
Concededly, if the Norris-LaGuardia Act is applicable, the court was without jurisdiction because under § 7 of that Act jurisdiction is withheld from the District Court to issue an injunction in a case to which that Act is applicable unless the complaint makes numerous specifically designated allegations under oath. No such allegations appear in the complaint in this suit.
In the Lee Way case, supra, plaintiff was engaged in a labor dispute with its own employees and its place of business was being picketed. A connecting motor carrier who customarily interchanged freight with the plaintiff had a contract with its employees which provided that they would not be required to cross picket lines. Plaintiff sued to compel the connecting motor carrier to continue to interchange freight with the plaintiff. Thus it is clear that there was a labor dispute between the plaintiff and its own employees which had resulted in a strike, and that plaintiff, the employer, was seeking the aid of the general equity powers of the court to break the strike. An injunction was refused because a labor dispute was involved within the meaning of the Norris-LaGuardia Act.
In our case plaintiff carriers and the River Road and its employees did not stand in the position of employer and employee, and there was no labor dispute between them; ...