Before KERNER, DUFFY and FINNEGAN, Circuit Judges.
In 1944, plaintiffs, a group of train porters and chaircar attendants employed by the Sante Fe Railway Company (hereinafter called "Santa Fe"), commenced this action upon behalf of all members of a class asking the court to enjoin the defendants from enforcement of Order and Award 6640 of the National Railway Adjustment Board (hereinafter called "Adjustment Board"). In the complaint herein plaintiffs allege that they are employees at will, but with seniority rights, that their employment is threatened by Award 6640 of the Adjustment Board's First Division, dated April 20, 1942, that said award was and is void in that they were parties involved in the dispute before the Adjustment Board between the Sante Fe and the Brotherhood of Railroad Trainmen (hereinafter called "BRT"), but that they had no notice of the proceedings therein. The defendants named are the Sante Fe; the Adjustment Board, its members and secretary; F. W. Coyle, a vice president of BRT; and nine individual brakemen members of BRT as representatives of a class.
In the dispute it was the claim of the brakemen that their working agreement with the Sante Fe covered all braking duties including those performed by train porters on the head end of the Santa Fe passenger trains. On the other hand the train porters pointed out that since 1900 they have continuously performed the disputed work, that although they do not have a collective bargaining agreement the railraod carries them on separate seniority rosters, and that under operating rules promulgated in 1904 and through custom and practice extending over fifty years, they have a contractual right to perform such services.
The dispute as to which employees should have the right to do the work is of long standing, dating back to about 1900. In 1925 a protest was made by BRT to Train Service Board of Adjustment for the Western Region, the basic issue being the same as the one here under consideration. On September 9, 1926, the Train Service Board ruled against the claim of BRT. Thereafter BRT negotiated a schedule agreement with Sante Fe, effective December 1, 1926. Thereafter BRT again presented the same issue to the Train Service Board, which, on February 8, 1927, again denied their claim. Prior to this latter decision, the parties had entered into a written agreement that the decision in the case should be final and binding upon the parties to the dispute.
Award 6640 resulted from a protest which BRT filed in 1939 upon behalf of four brakemen in Texas. It is admitted that the Adjustment Board did not give notice of the proceedings or hearing to the plaintiffs herein. The Adjustment Board, with five dissenting votes, found that the Santa Fe's use of porters not holding seniority as brakemen for the performance of duties on the head end of passenger trains was a violation of the brakemen's seniority rights, and that their specific claims then on file for lost wages should be allowed. Thereafter, upon demand of the brakemen, the Sante Fe notified plaintiffs that the Adjustment Board's award would be immediately enforced against them by their removal from their regular runs, and that they would be replaced by members of the craft to which the brakemen belonged. In fact, some of the plaintiffs and members of the class to which they belonged actually were removed from their regular runs and replaced by brakemen. Plaintiffs then commenced this suit.
Based upon the verified complaint and the affidavit of James M. Jackson, one of the plaintiffs, the district court issued a temporary restraining order on October 31, 1944.On February 6, 1948, the district court issued a preliminary injunction.*fn1 At the hearing for preliminary injunction plaintiffs re-offered the Jackson affidavit and produced two witnesses, McFarland, the secretary of the First Division of the Adjustment Board, and Kirkpatrick, a Santa Fe official, who negotiated the agreement with the BRT. Plaintiffs also offered certain correspondence between them and the Santa Fe. The brakemen did not produce any witnesses on the hearing for the preliminary injunction, but offered a part of a deposition of one Palmer and the printed report of the Adjustment Board proceedings.
The order for the preliminary injunction was appealed to this court and was affirmed. 7 Cir., 171 F.2d 594, certiorari denied 337 U.S. 916, 69 S. Ct. 1157, 93 L. Ed. 1726. This court held that the award of the Adjustment Board was void, primarily because it was made without giving the train porters the required statutory notice,*fn2 and because their constitutional rights to participate in the proceedings before the Adjustment Board were denied. We also pointed out that the 1926 agreement between the Sante Fe and the BRT specifically provided that it did not change, alter or extend the rules pertaining to train porters,*fn3 and stated that in making the award the Adjustment Board had exceeded its statutory authority to interpret or apply the contract as it existed, and in effect had made a new and different contract between the brakemen and the railroad.
After remandment the brakemen-defendants filed a motion requiring plaintiffs and Sante Fe to produce certain documents for inspection and copying, bearing upon the question of actual notice to the plaintiffs of the Adjustment Board proceedings in the Sante Fe-BRT dispute. The district court denied the motion on the ground that the evidence sought pertained to the only issue herein, namely, the validity of the award of the Adjustment Board, and that this issue had been finally determined in connection with the hearing on the preliminary injunction, and the appeal therefrom. The district court then set a date for final hearing. In a colloquy with counsel for the brakemen-defendants, the court indicated that objections would be sustained if evidence of a certain type were offered on the final hearing, the court being of the opinion that the only real issue in the case had already been decided. A proposed offer of proof was then discussed, and the court ruled that an offer of proof could be made at the final hearing without the presence of witnesses in court, but that such witnesses might be produced if counsel so desired.
The final hearing was held June 29, 1950. Plaintiffs offered the testimony which had been received on the hearing for the preliminary injunction, including the affidavit of plaintiff Jackson, and a transcript of the testimony of witnesses McFarland and Kirkpatrick. No showing was made that any of these witnesses were unavailable to testify personally. This evidence was received over the objection of the brakemen-defendants, who also made a motion for dismissal of the action. The brakemen-defendants then presented an offer of proof, which occupies some twenty pages in the printed record, as well as the published report of the proceedings of the Adjustment Board resulting in Award 6640, the basic contract or working agreement between the brakemen and the Sante Fe, and also the contract between the brakemen and the Santa Fe dated April 27, 1944.
Although much of the offer of proof was in general terms, it pertained to the following defenses: (1) that the named plaintiffs do not properly represent the persons on whose behalf the suit is brought; (2) the individual brakemen-defendants are not representatives of the Santa Fe brakemen; (3) plaintiffs had actual notice of the pendency before the National Railroad Adjustment Board of the dispute between the Sante Fe and the brakemen; that plaintiffs authorized the Sante Fe to represent their interests, and did not seek to intervene; (4) plaintiffs have not submitted their claims to the disputed work to the Adjustment Board; (5) the employment contract between the Sante Fe and BRT submitted to the Adjustment Board did in fact cover the head end braking work in dispute, and the Board's award did not pass on plaintiffs' claim to the disputed work; (6) the agreement of April 27, 1944, between the Sante Fe and the BRT was intended to alter the basic working agreement between said parties and to supersede the interpretation made thereof in the award by the Adjustment Board.
All evidence offered by the brakemen-defendants at the final hearing was rejected. The district court made findings of fact and conclusions of law, and entered a decree granting a permanent injunction. In the findings of fact the court found that on the hearing for the preliminary injunction, the court had determined that the award of the Adjustment Board was void because actual notice of the hearing had not been given by the Adjustment Board to the train porters as required by statute, that the Court of Appeals had likewise decided the question on the merits and had affirmed the judgment of the district court, and that no new facts had been elicited to show that the preliminary injunction should not be made permanent.
The district court also found that plaintiffs are members of a class or craft of railway employees composed entirely of colored persons, known as porter-brakemen or train porters, who have been employed by Sante Fe as such class or craft since 1899; that the named defendant-brakemen represented all Sante Fe brakemen as a class; that plaintiffs were employed at will but with seniority rights in their employment; that Santa Fe willed to terminate plaintiffs' employment only through the insistence of the BRT; that Santa Fe will, unless enjoined, displace the plaintiffs in their employment solely by reason of Order and Award 6640. There was no finding as to actual knowledge by plaintiffs of the Adjustment Board's proceedings during the pendency thereof, or whether plaintiffs authorized Santa Fe to represent them in the proceedings, or whether plaintiffs acquiesced in the position taken by Santa Fe. Also there was no mention made in the findings as to the contract between Santa Fe and BRT dated April 27, 1944.
When this case was before us previously, the appeal was from a temporary injunction, and what we said in the opinion must be considered in that light. A temporary injunction is a provisional remedy granted before a hearing is had on the merits; its object usually is to preserve the subject of the controversy in its then existing condition - to preserve the status quo. 43 C.J.S., Injunctions, § 31, p. 466. On the application for a temporary injunction the court may consider affidavits and verified pleadings as evidence. 43 C.J.S., Injunctions, §§ 193-195, pp. 899-901. The general rule has been stated, "The granting or denial of a preliminary injunction does not amount to an adjudication of ...