Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 86 C 2442 et al. --James F. Holderman, Judge.
Before FLAUM and EASTERBROOK, Circuit Judges, and SWYGERT, Senior Circuit Judge.
EASTERBROOK, Circuit Judge.
A dispute between a tiny railroad in New England and one of its unions threatens to disrupt rail transportation throughout the United States. Concluding that any legal system that allows this to occur would deserve Mr. Bumble's condemnation, the district court issued in injunction against the union's picketing. The railroads defend the injunction on the principal ground that Congress could not have meant railroads, alone among America's principal industries, to be exposed to secondary picketing. We conclude, however, that Congress provided just this. Employees of railroads are not covered by the National Labor Relations Act, which prohibits secondary picketing and allows the National Labor Relations Board to seek injunctions. See 29 U.S.C. §§ 152(2), 152(3), 158(b)(4), 160(1). The Railway Labor Act, 45 U.S.C. §§ 151-63, does not prohibit secondary pressures, and this dispute therefore is governed by the Norris-LaGuardia Act, 29 U.S.C. §§ 101-15, which forbids federal courts to enjoin peaceful picketing growing out of labor disputes.
The Brotherhood of Maintenance of Way Employees (the Union) represents some employees of the Maine Central Railroad and the Portland Terminal Company (collectively the Maine Central). Their last collective bargaining agreement expired in 1984. This failure to agree about wages and conditions of employment is a "major dispute" in the parlance of the Railway Labor Act, and it brought into play a sequence of steps starting with a conference, see 45 U.S.C. § 152 Second, and progressing through hearings before the National Mediation Board, see 45 U.S.C. § 155 First (b). See also 45 U.S.C.§§ 156, 157, 160. By March 1986 the parties had exhausted the statutory procedures, and the members of the Union went on strike on March 3. This is a lawful strike. Late in March the Union extended the strike to the Delaware & Hudson Railroad and the Boston & Maine Railroad, which, like the Maine Central, are subsidiaries of Guilford Transportation Industries, Inc. Guilford sought but did not get an injunction against the extension of the strike. BMWE v. Guilford Industries, Inc., No. 86-0084-P(D. Me. Apr. 2, 1986).
Supervisors continued to operate at least some of the services of the four Guilford companies. Although the Guilford companies collectively operate more than 4000 miles of track, reaching from Buffalo to Portland, Maine, and from Montreal to Washington, D.C., they are small as railroads go. Much of their traffic is carried in part by some other railroad on a joint or through route. The Union therefore decided in early April to put pressure on the Guilford lines by choking off their revenue from traffic they interchange with other railroads. The Union extended its picketing to railroads in the east that interchanged significant volumes of traffic with the Guilford lines. This was quickly enjoined. Consolidated Rail Corp. v. BMWE, Civ. 86-0318 (W.D.N.Y. Apr. 6, 1986), stayed pending appeal, No. 86-7289 (2d Cir. May 15, 1986); Richmond, Fredericksburg & Potomac R.R. v. BMWE, No. 86-3544 (4th Cir. Apr. 12, 1986) (Widener, J.), vacated by panel, May 5, 1986, cert. pending, No. 85-1792. On April 8 the Union sent a telegram to the Association of American Railroads, threatening to picket every railroad in the country. This produced a panicked series of requests for relief that have been concentrated in Chicago and the District of Columbia. In BMWE v. Association of American Railroads and two consolidated cases, the district court entered a temporary restraining order on April 13 but on April 25 declined to issue a preliminary injunction. Civ. No. 86-0951 (D.D.C. Apr.25, 1986), affirmed under the name Central Vermont Ry. v. BMWE, 253 U.S. App. D.C. 312, 793 F.2d 1298 (D.C. Cir. 1986) (memorandum with notation that an opinion would follow).
The railroads' longest-lived success has been in Chicago. The Burlington Northern filed this suit on April 9 and obtained a temporary restraining order from Judge Holderman the same day. The Missouri Pacific; Union Pacific; Atchison, Topeka & Santa Fe; Baltimore & Ohio Baltimore & Ohio Chicago Terminal; Chesapeake & Ohio; and Seaboard System railroads filed suits in Chicago immediately, and Chief Judge McGarr, as the emergency judge, issued further TROs. All of the suits were consolidated before Judge Holderman, who held a hearing and on April 23 entered a preliminary injunction against the Union's picketing.
The dispute has led to still more proceedings under the Railway Labor Act. On May 16 President Reagan issued Executive Order No. 12557, convening an Emergency Board under 45 U.S.C. § 160. The President determined that the disputes between the Union and the Maine Central "threaten substantially to interrupt interstate commerce to a degree such as to deprive a section of the country of essential transportation services." The Emergency Board must investigate the dispute and issue its report within 30 days. In the meantime, and "for thirty days after [the] board has made its report to the President, no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose." The Union interprets this language of § 160 as requiring the Maine Central to restore the status quo before the strike and to resume bargaining; the members of the Union are back at work and represent that so long as the Maine Central restores the pre-strike conditions they will stay at work. (While the Union's members are on the job at the Maine Central, they have no desire to picket the Burlington Northern and the other plaintiffs.) The Maine Central may have a different view of § 160, and there may be further litigation concerning the Union's power to resume its strike before July 15, when the statutory period ends. The Executive Order does not make this case moot. The substantive dispute between the Union and the Maine Central continues, and unless it is settled by negotiations or resolved by legislation (a frequent ending for railroad strikes), the parties will be at each others' throats again on July 15. It remains necessary to decide whether the district court was entitled to issue an injunction.
The eight railroads that are plaintiffs here (collectively the Railroads) are strangers to the dispute between the Union and the Maine Central. They cannot compel the Maine Central to meet the Union's demands or require the Union to be satisfied with the Maine Central's offer. The Union's picketing of the Railroads is therefore "secondary" activity, as the Union concedes. The Union hopes that the employees of other railroads will honor its picket lines, shut down the nation's railroad system, dry up the Guilford lines' source of traffic, and put pressure on Guilford to require Maine Central to cave in to the Union's requirements. The district court assumed that it is unlawful for the Union to apply economic pressure on "neutral" railroads. It did not identify the source of the legal rule forbidding secondary picketing. The Railroads maintain that the Railway Labor Act itself is the source of the rule; we return to this claim in Part IV. The principal rule; we return to this claim in Part IV. The principal obstacle to relief is § 1 of the Norris-LaGuardia Act, 29 U.S.C. § 101, which states that "no court of the United States.... shall have jurisdiction to issue any ... injunction in a case involving or growing out of a labor dispute, except in strict conformity with the provisions of this chapter". Section 4, 29 U.S.C. § 104, repeats the command of § 1, stating that no court has jurisdiction to enjoin anyone "interested in such [labor] dispute ... from doing, whether singly or in concert, any of the following acts: ... (e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence". The Union's pickets at the Railroads' places of work are "giving publicity to...[a] labor dispute ... by patrolling, or by any other method not involving fraud or violence". The Norris-LaGuardia Act does not contain any other provision allowing secondary picketing to be enjoined; indeed, the elimination of injunctive restraints against secondary picketing was one of the principal aims of the Norris-LaGuardia Act. United States v. Hutcheson, 312 U.S. 219, 85 L. Ed. 788, 61 S. Ct. 463 (1941); Bakery Drivers v. Wagshal, 333 U.S. 437, 442, 92 L. Ed. 792, 68 S. Ct. 630 (1948); cf. NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503 (2d Cir. 1942) (L. Hand, J.). See also F. Frankfurter & N. Green, The Labor Injunction (1930) (describing how courts frustrated one after another legislative attempt to authorize secondary picketing). Section 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107, contains some exceptions from the ban on injunctions, but the parties agree that none of these exceptions applies to this case.
It therefore appears to follow that the district court was not allowed to issue an injunction. But the district court relied on a definitional provision of the Norris-LaGuardia Act. Sections 1 and 4 apply only to action "involving or growing out of a labor dispute". "Labor dispute" is defined by § 13(c), 29 U.S.C. § 113(c), to include secondary pressure. It is any "controversy concerning terms or conditions of employment... regardless of whether or not the disputants stand in the proximate relation of employer and employee." The dispute between the Union and the Railroads is a "labor dispute" under § 13(c) because it concerns the Union's terms and conditions of employment, even though not employment by the Railroads. See also Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Ass'n, 457 U.S. 702, 73 L. Ed. 2d 327, 102 S. Ct. 2672 (1982). Section 13(a), 29 U.S.C.§ 113(a), on which the district court relied, defines "involve or grow out of". Section 13(a) states that a "case shall be held to involve or grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; ...or when the case involves any conflicting or competing interests in a 'labor dispute' (as defined in this section) of 'persons participating or interested' therein". The district court concluded that the Union's desire to picket the premises of the Railroads doe not "grow out of" a labor dispute within the meaning of § 13(a).
The court gave two reasons. First, it held, picketing of a secondary employer's premises "grows out of" a labor dispute only when the secondary employer is so "aligned" with the primary employer that its economic activity significantly undermines the union's economic interest. Slip op. 9-18, relying on Ashley, Drew & N. Ry. v. United Transportation Union, 625 F.2d 1357 (8th Cir. 1980). The Burlington Northern does not connect with any of the Guilford lines, and over the course of a year it carries only 1,400 cars received from or bound to a Guilford line. This is 0.043% of the Burlington's traffic. The Union Pacific last year handled 601 carloads, or only 0.019% of its total business. So it goes with Santa Fe (248 carloads, 0.011% of traffic). The district court thought these and other plaintiffs just too far removed from the fray to be depicted as allies--witting or incidental--of the Guilford lines. The Baltimore & Ohio and the Chesapeake & Ohio connect directly with Guilford lines in Buffalo and Philadelphia, although not with lines of the Maine Central. The Union contends, without contradiction, that the Chesapeake & Ohio has altered its ordinary practices in Buffalo to allow Guilford supervisors to handle the connection, sparing its employees the decision whether to cross the Union's picket line. The district court concluded, however, that although the connections of traffic may be important to the Guilford lines, they are not important tot he Baltimore & Ohio or the Chesapeake & Ohio, for neither the B&O nor the C&O derives even 1% of its revenues from traffic interchanged with the Guilford lines. This is too little, the district court though, to be a "substantial alignment" of the secondary employer with the primary, and therefore the dispute does not "grow out of" the Maine Central's dispute with the Union.
The district court's second reason why the dispute does not "grow out of" a labor dispute is that the Union is applying pressure designed to induce the Railroads to violate their obligation under the Interstate Commerce Act to provide "safe and adequate service" (49 U.S.C.§ 11101(a)) without discrimination. If the Railroads knuckled under to the Union, the court believed, they would violate the Interstate Commerce Act. Finally, the district court thought that an injunction would vindicate the processes of the Railway Labor Act. The Railway Labor Act requires extended conciliation of all "major disputes". The court characterized the question whether the Union could picket the Railroads as a ...