UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: October 19, 1973.
ASSOCIATED GENERAL CONTRACTORS OF ILLINOIS, AN INCORPORATED ASSOCIATION, INDIVIDUALLY AND ON BEHALF OF ITS MEMBERS, PLAINTIFF-APPELLEE,
ILLINOIS CONFERENCE OF TEAMSTERS, AN UNINCORPORATED ASSOCIATION, INDIVIDUALLY AND ON BEHALF OF ITS MEMBERS, DEFENDANT-APPELLANT. ILLINOIS CONFERENCE OF TEAMSTERS, AN UNINCORPORATED ASSOCIATION, INDIVIDUALLY AND ON BEHALF OF ITS MEMBERS, PLAINTIFF-APPELLANT, V. ASSOCIATED GENERAL CONTRACTORS OF ILLINOIS, AN INCORPORATED ASSOCIATION, INDIVIDUALLY AND ON BEHALF OF ITS MEMBERS, DEFENDANT-APPELLEE
Cummings, Pell and Stevens, Circuit Judges.
This is the Union's second appeal. The litigation arose out of a dispute over the wage scale applicable to work performed during the three month period between April 1, 1970, and July 1, 1970, on highway construction contracts which had been negotiated previously. After the contract grievance procedure became deadlocked, the Union struck or threatened to strike contractors who refused to pay the higher rate. Plaintiff, an association of employers, then invoked the district court's jurisdiction under § 301 of the Labor Management Relations Act;*fn1 the court enjoined the strike in order to preserve its jurisdiction to resolve the underlying dispute. Without reaching the merits of that dispute, we held that the entry of the injunction was prohibited by § 4 of the Norris-LaGuardia Act*fn2, and remanded for further proceedings*fn3 The district court, 345 F. Supp. 1296, then decided the merits of the contract issue in plaintiffs' favor. On appeal*fn4 the Union contends: (1) that its recovery of costs and expenses caused by the issuance of the injunction should not have been limited by the amount of the bond posted by plaintiff; (2) that the district court should not have decided the merits; and (3) that it did so incorrectly. We affirm.
The preliminary injunction required plaintiff to file "a bond with suitable surety in the amount of $1,000.00 securing any amounts that may hereafter be awarded to defendant or its members in the event it should be determined that this order was improperly obtained." Counsel for the Union objected to the amount of the bond, suggesting that it should be increased to at least $10,000. No formal motion to increase the bond was filed, however, and the Union did not question its adequacy on the first appeal. The issue before us is not whether the bond was adequate; rather, assuming that it was inadequate, does it nevertheless limit the Union's recovery for costs and expenses incurred as a result of the erroneous issuance of the injunction?
The Union relies on § 7 of the Norris-LaGuardia Act*fn5 as recently construed by the Third Circuit in United States Steel Corp. v. United Mine Workers, 456 F.2d 483 (1972), cert. denied, 408 U.S. 923, 33 L. Ed. 2d 334, 92 S. Ct. 2492. We agree that the case is directly in point but we disagree with its reading of the statutory language.
The language of the section does not expressly authorize any recovery in excess of the amount of the bond. It provides that no temporary restraining order or preliminary injunction shall issue without a bond, and further that the amount of the bond shall be "sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such an order or injunction." Thus, if the district court were persuaded that the wrongful issuance of an injunction might cause damages in excess of the normal recoverable costs, he clearly would have authority to require a bond in an amount sufficient to indemnify against such damages. But the statute does not purport to change the law which would otherwise be applicable to the recovery of damages in excess of the amount of the bond.
Indeed, the last sentence in the section gives the defendant the right to elect either his remedy under the surety bond or to "pursue his ordinary remedy by suit at law or in equity." Thus, if apart from the terms of the bond, the defendant is entitled to recover costs, expenses or damages in excess of $1,000, that right is unaffected by the limit on the amount which may be recovered under the bond. Neither the bond nor the statute curtails the recovery the defendant could otherwise obtain. Nor, in our opinion, does the bond or the statute expand the amount which the defendant may recover when he is not asserting a claim under the bond. We believe the right which exists apart from the bond is unaffected by the fact that the statute authorizes security in an amount greater than the claimant could otherwise recover.
In this case, the Union does not argue that, apart from § 7 of the Norris-LaGuardia Act, it has a right to recover expenses or damages in excess of $1,000. It relies only on § 7 as creating a previously unknown substantive right. Acceptance of its claim would be such a significant departure from long and well settled practice*fn6 that we believe a congressional intent to effect that change would have been expressed unambiguously*fn7 We therefore follow the decision of the Eighth Circuit in International Ladies Garment Workers Union v. Donnelly Garment Company, 147 F.2d 246 (1945), cert. denied, 325 U.S. 852, 89 L. Ed. 1972, 65 S. Ct. 1088, rather than the ruling of the Third Circuit in United States Steel Corp., supra*fn8
The Union does not question the district court's power to grant a declaratory judgment interpreting a collective bargaining agreement*fn9 It makes the narrow claim that under the terms of this particular contract, the parties had agreed that deadlocked grievances would be resolved by economic recourse without resort to the courts.
Unquestionably "the means chosen by the parties for settlement of their differences under a collective bargaining agreement [must be] given full play." See United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 566, 4 L. Ed. 2d 1403, 80 S. Ct. 1343*fn10 But it is one thing to hold that an arbitration clause in a contract agreed to by the parties is enforceable. It is quite a different matter to construe a contract provision reserving the Union's right to resort to "economic recourse" as an agreement to divest the courts of jurisdiction to resolve whatever dispute may arise. This we decline to do.
In our first opinion in this case we noted that the parties had not agreed to compulsory arbitration and that the Union had expressly reserved the right to "economic recourse" in the event of a deadlock. We therefore held that the rationale of Boys Market did not justify enjoining the strike. The right to strike was protected by the Norris-LaGuardia Act. However, we did not, and do not now, construe the agreement as requiring economic warfare as the exclusive or even as a desirable method for settling deadlocked grievances. The plain language of the statute protects the right to strike, but there is no plain language in the contract compelling the parties to use force instead of reason in resolving their differences. In our view, an agreement to forbid any judicial participation in the resolution of important disputes would have to be written much more clearly than this.
Finally, the Union argues that the merits were decided improperly. As we recognized on the first appeal, there is substance to the Union's position. We need not repeat what we said there. However, after reviewing the arguments presented then, as well as now, and after studying the district court's analysis of the issue, we are convinced that we reached the correct conclusion. We think the significance of the Union demand, as well as the contract provision, that the 1970 wage rates would become effective as of April 1, is overcome by the fact that comparable language in prior agreements was consistently understood to be subject to the terms of the "grandfather clause" in the expiring contract. In order to vary the terms of the 1967 contract, we believe a more specific expression of intent was required than a mere reiteration of the effective date provision. Moreover, the basic purpose of the grandfather clause - to enable contractors to bid on the basis of reasonably ascertainable labor costs - would be frustrated by the Union's construction. We believe the district court correctly interpreted the contract between the parties.