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Merryman Excavation, Inc. v. International Union of Operating Engineers

November 21, 2006


The opinion of the court was delivered by: Judge Virginia M. Kendall


Merryman Excavation, Inc. ("Merryman") has brought suit against the International Union of Operating Engineers, Local 150, AFL-CIO (the "Union") to vacate several arbitration awards for lack of jurisdiction. Merryman sought a Temporary Restraining Order ("TRO") against the Union to prevent the Union from striking or threatening to strike while the parties resolve the issues before this Court.

At an initial hearing on September 26, 2006, the parties briefly argued Merryman's Motion for TRO. At that hearing, the Union took the position that the Norris-LaGuardia Act (the "NLA") barred this Court from issuing an injunction against a strike, and argued that even if the Union might have bargained away its general right to strike as part of the Collective Bargaining Agreement (the "CBA"), Article XX of the CBA carved out an exception to the general no-strike provision for any issue involving "wages and benefits." Since the Union considered the arbitration awards "wages and benefits," the Union argued that it had an unconditional right to strike. Merryman, on the other hand, argued that the Boys Markets exception to the NLA, that permits courts to enforce no-strike provisions in a CBA via injunctive relief, should govern this case. See Boys Markets, Inc. v. Retail Clerk's Union Local 770, 398 U.S. 235, 253-254 (1970).

Because the parties had not developed a record concerning the issue of the application of Article XX, the parties agreed to postpone hearing on the TRO pending full briefing of all the issues. At a second hearing on October 26, 2006, the parties thoroughly argued Merryman's Motion for TRO, including the application of Article XX. At the conclusion of that hearing, the Court determined that: (i) the Article XX exception in the CBA does not apply to the arbitration awards, and (ii) there is a general no-strike provision in the CBA, making Boys Markets potentially applicable. Oct. 26, 2006 Tr. at 104-106. However, following the instruction of the court in Boys Markets, the Court reviewed the traditional equitable factors meriting injunctive relief and determined that while Merryman had a likelihood of success on the merits in light of the decision MJ Electric Inc. v. Int'l Union of Operating Eng'rs, Local 150, 2003 WL 21640474 (N.D. Ill. 2003), Merryman had not demonstrated irreparable harm and had an adequate remedy at law. Following the reasoning in Skokie Valley Beverage Co. v. Beer, Soft Drinks, etc., 563 F. Supp.460, 463 (N.D. Ill. 1983), the Court held that Merryman could pay the arbitration awards in dispute, totaling approximately $88,000, to the Union in order to avoid the possibility of a strike while the Court examined the merits of the dispute over the JGC's award.

Merryman now moves this Court to reconsider its finding that equitable considerations do not warrant the issuance of a TRO against the Union. As the Court ruled orally at the two previous hearings, this opinion addresses in full the Court's decision to deny Merryman injunctive relief. As this Motion for TRO has been entered and continued for nearly two months, with extensive briefing and argument by both parties, the Court construes the Motion for TRO as a Motion for Preliminary Injunction. The Court denies the Motion to Reconsider, and in accordance with the oral ruling of October 26, 2006, denies injunctive relief to Merryman.


1. The Norris-LaGuardia Act

Subject to a few narrow exceptions, the NLA deprives this court of jurisdiction to grant an injunction in a labor dispute. The NLA expresses a basic policy against the injunction of activities of labor unions. See Burlington N. R.R. Co. et al. v. Bhd. of Maint. of Way Employees, et al., 481 U.S. 429, 437 (1987). Section 101 of the NLA states that "[n]o court of the United States.shall have jurisdiction to issue any.temporary or permanent injunction in a case involving or growing out of a labor dispute, except in strict conformity with the provisions of this Act." 29 U.S.C. § 101. Section 113(c) explains that the term "'labor dispute' includes any controversy concerning terms or conditions of employment." 29 U.S.C. § 113(c).

The term "labor dispute" in the NLA "must not be narrowly construed because the statutory definition itself is extremely broad and because Congress deliberately included a broad definition." Jacksonville Bulk Terminals, Inc. v. Int'l Longshoremen's Assoc., 457 U.S. 702, 712 (1982). Most NLA cases involve two disputes: the first is the "underlying dispute," which is usually the event or condition that triggers a strike or threat of strike; the second is the parties' dispute over whether the union's decision to strike or threaten strike was in violation of the parties' CBA. Jacksonville, 457 U.S. at 710. The NLA does not require "each dispute relevant to the case to be a labor dispute." Jacksonville, 457 U.S. at 711. (emphasis in original). Rather, "[t]he [NLA] merely requires that the case involve 'any' labor dispute." Jacksonville, 457 U.S. at 711. Thus, a federal court may not issue an injunction against "a secondary activity growing out of any labor dispute." Burlington N. R.R. Co. et al., 481 U.S. at 434.

In the case, the NLA generally applies to this case. The NLA prohibits this Court from granting an injunction if the dispute is one "involving or growing out of a labor dispute." 29 U.S.C. § 101. While the particular aspect of the dispute that brings the parties to this Court is judicial review of the jurisdiction of the JGC, the dispute at issue originated from claims that Merryman violated various terms and conditions of employment set forth in the CBA. The underlying dispute is one concerning the terms and conditions of employment, and therefore under the umbrella of the NLA. See Burlington N. R.R. Co. et al., 481 U.S. at 440.

2. The Boys Markets Exception

Even if the NLA's general prohibition against injunctions applies, this Court may issue an injunction if Merryman can prove that the exception set forth in Boys Markets, Inc. v. Retail Clerk's Union Local 770, 398 U.S. 235, 253-254 (1970) applies to the circumstances here. Boys Markets allows a district court to enter injunctive relief to enjoin a union from striking over a dispute that both parties are contractually obligated to arbitrate:

[w]hen a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity -- whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the Union from its issuance.

Boys Markets, 398 U.S. at 254. Boys Markets requires a district court to hold: (1) that the contract has the effect of binding both parties to arbitrate the dispute at issue; and (2) that ordinary principles of equity warrant an injunction. Chicago Dist. Council of Carpenters Pension Fund v. K&I Constr., 270 F.3d 1060, 1064 (7th Cir. 2001). A plaintiff that is seeking an injunction "is subject to an extra burden: it must both satisfy the normal requirements for an injunction and also demonstrate ...

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