ASHLEY, DREW & NORTHERN RAILWAY COMPANY, Appellee,
v.
UNITED TRANSPORTATION UNION AND ITS AFFILIATED LOCAL NO.
1121; Bobby G. Hall; Harold L. Rhoads; J. R. Tice and H. G.
Kenyon, Individually and as Representative of United
Transportation Union & Local No. 1121, Appellants.
No. 79-1886.
United States Court of Appeals,
Eighth Circuit.
Submitted April 17, 1980.
Decided July 9, 1980.
Pamela D. Walker, Little Rock, Ark., for appellants.
Walter A. Paulson, Little Rock, Ark., argued, for appellee; James W. Moore and Oscar E. Davis, Jr., Little Rock, Ark., on brief.
Before STEPHENSON, Circuit Judge, KUNZIG,* Court of Claims Judge, and McMILLIAN, Circuit Judge.
STEPHENSON, Circuit Judge.
United Transportation Union (UTU)1 appeals from a preliminary injunction restraining it from picketing Ashley, Drew & Northern Railway Company (AD&N). The district court2 issued the injunction on the ground that UTU was engaged in secondary picketing outlawed by the Railway Labor Act. The principal issues on appeal are (1) whether the district court had jurisdiction to issue the injunction, and, if so, (2) whether issuing the injunction was an abuse of discretion. A threshold issue is whether the appeal is moot inasmuch as the strike underlying the picketing has ended. We reach the merits and affirm the action of the district court.
I. Background
Appellee AD&N sought injunctive relief when UTU, on strike against the Chicago, Rock Island & Pacific Railroad Company (hereinafter Rock Island), began to picket AD&N and induce its employees to leave their jobs. This picketing was in response to AD&N's use of managerial personnel to move the freight of an affiliated railroad in Rock Island's railroad yard at Fordyce, Arkansas. AD&N has about seventy-five employees, some of whom belong to UTU. But, at the time the picketing occurred, UTU and AD&N had no dispute over the pay or working conditions of AD&N employees.
The material facts are not in dispute. AD&N is owned by the Georgia-Pacific Company, which makes wood-based products. AD&N operates on about forty miles of track between the Arkansas towns of Monticelli and Crosset. AD&N serves several customers along this route. Its principal customers are the Georgia-Pacific processing plants around Crosset.
About fifty miles from Crosset is Fordyce, where Georgia-Pacific owns and operates both a mill and a one-engine, two-man railroad, the Fordyce & Princeton Railway Company (F&P). F&P leases freight cars from other railroads and transports them over the half-mile track between the mill and the railroad yard at Fordyce. During the relevant period, this yard was owned by Rock Island, which leased facilities to F&P and to the St. Louis Southwestern Railway Company (hereinafter Cotton Belt). By a trackage agreement, Rock Island permitted F&P and Cotton Belt to use specified Rock Island track "for the purpose of effecting interchange with each other." UTU was not a signatory to this agreement.
Before the Rock Island strike, F&P would deliver carloads of processed wood to the Fordyce yard and take empty cars back to the mill. Rock Island or Cotton Belt employees would deliver empty cars to the yard. Rock Island employees would pick up loaded cars to be routed via Rock Island, Cotton Belt employees would pick up cars to be routed via Cotton Belt. About 150 cars were interchanged each day in the Fordyce yard, with F&P's interchanges accounting for about fifteen to twenty of that number.
In late August of 1979, UTU, after exhausting conciliation proceedings required by the Railway Labor Act, began a lawful strike against Rock Island and posted pickets at Rock Island's Fordyce depot. This depot was beside the Rock Island track that linked F&P with the Cotton Belt and Rock Island lines. Although not themselves on strike, Cotton belt employees refused to cross UTU's picket line to interchange cars between Cotton Belt and F&P. F&P's employees similarly refused.
In response to this development, AD&N and F&P which had common management dispatched three or four AD&N officers from Crosset to move the F&P freight.3 From August 31 to September 5, AD&N officers operated the F&P locomotive to move cars over the Rock Island track specified in the Rock Island-Cotton Belt-F&P trackage agreement. Sometimes, because of congestion on this track, the AD&N officers used Rock Island's main track to effect the interchange. The officers also transferred to Cotton Belt some cars that would have been carried by Rock Island in the absence of a strike. The officers did not advance Rock Island freight cars for the benefit of any other Rock Island customer; their aim was to maintain F&P's rail service for Georgia-Pacific's Fordyce mill.
After recognizing that the workers crossing picket lines at Fordyce were AD&N personnel, UTU sent members to picket the AD&N line near Crosset. At 6:45 p. m. on September 5, UTU members bearing picket signs accosted an AD&N train leaving Crosset. AD&N employees responded by abandoning the train. At 11:30 p. m. additional UTU pickets appeared at the main entrance of Georgia-Pacific's Crosset plant complex. The effect of these picket lines was that about sixty of AD&N's seventy-five employees chose to stay off the job. The remaining employees, supplemented by management personnel, could perform no more than twenty-five percent of AD&N's regular rail service.
Continual use of the AD&N line was critical to operation of Georgia-Pacific's Crosset plants. Each day, AD&N brought in seventy carloads of raw materials to Crosset and carried out a like amount of finished product. No alternative form of shipment was reasonably available. Because the Crosset plants had few storage facilities, a one or two-day delay in either outgoing or incoming rail shipments would force the plants to shut down. In that event, about 3,000 employees would be out of work. The district court found that trade and public revenues in the surrounding areas would suffer by the loss of millions of dollars per month in wages.
On September 6, the day after UTU's picketing against AD&N began, AD&N posted a $25,000 indemnity bond and secured a temporary restraining order against the picketing. This order remained in effect until September 14, when it was superseded by the district court's preliminary injunction. In issuing the injunction, the court held that AD&N had met its two-fold burden of establishing the potential for irreparable harm absent immediate injunctive relief and a likelihood of success on the merits. As to the latter, the court ruled that UTU's secondary picketing against AD&N was prohibited by the Railway Labor Act and not protected by the anti-injunctive provisions of the Norris-LaGuardia Act.4 Important to both rulings was the court's finding that there was no "substantial alignment" between AD&N and Rock Island: the court found that AD&N and F&P were only continuing their rail service for Georgia-Pacific, not aiding Rock Island in the strike.
II. Mootness
Federal jurisdiction extends only to actual cases and controversies, U.S.Const. art. 3, § 2, and the case or controversy "must exist at stages of appellate * * * review, and not simply at the date the action is initiated." Roe v. Wade,
We cannot agree. As the party seeking extraordinary injunctive relief, AD&N was required to post a bond to indemnify UTU for any loss UTU might sustain as a result of being wrongfully enjoined or restrained. See Fed.R.Civ.P. 65(c). Because UTU has a continuing monetary stake in demonstrating that injunctive relief should not have been issued, its appeal is not moot. See Liner v. Jafco, Inc.,
III. Jurisdiction to Issue Injunctive Relief
UTU attacks the district court's jurisdiction on two alternative grounds. First, UTU contends that this case involved or arose out of a "labor dispute" either between UTU and Rock Island or between UTU and AD&N within the meaning of the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115. Accepting that contention would mean that the district court was affirmatively deprived of any jurisdiction it otherwise might have had to issue injunctive relief. Second, UTU contends that, even should Norris-LaGuardia not apply, AD&N had no federal right of action for injunctive relief. We reject both contentions and conclude the district court had jurisdiction to issue an injunction.
A. Effect of the Anti-Injunction Act
The Norris-LaGuardia Act of 1932 generally removes the jurisdiction of federal courts to issue injunctive relief in "any case involving or growing out of any labor dispute," 29 U.S.C. § 101. Injunctive relief against secondary picketing in such a case is either absolutely barred, see 29 U.S.C. § 104(a), (e) & (i), or is available only under special circumstances which were not shown here, see 29 U.S.C. §§ 107, 108. Applicability of the Act's anti-injunction proscription therefore depends solely on whether this was a case involving or arising out of a labor dispute within the meaning of the Act.6
Section 13(c) of the Act, 29 U.S.C. § 113(c), defines "labor dispute" as "any controversy" concerning either "terms or conditions of employment" or "representation" of persons in negotiating "terms or conditions of employment." A "labor dispute" exists under section 13(c) "regardless of whether or not the disputants stand in the proximate relation of employer and employee." The "labor dispute" in this case was that which existed between UTU and Rock Island. We reject UTU's contention that another "labor dispute" existed between it and AD&N. UTU's only asserted dispute with AD&N was over the latter's use of managerial personnel to move F&P freight over Rock Island track in Fordyce. This controversy concerned neither the representation of AD& N employees nor their terms or conditions of employment. Cf. Milk Wagon Drivers' Union, Local 753 v. Lake Valley Farm Products, Inc.,
Application of the Norris-LaGuardia Act thus depends on whether this case "involves or arises out of" the only possibly relevant labor dispute that between UTU and Rock Island. Section 13(a) of the Act provides:
(a) A case shall be held to involve or to 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 who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employees or associations of employees and one or more employees or associations of employees; 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 (as defined in this section).
29 U.S.C. § 113(a). UTU contends we should read this expansive language literally and rule that the present case is a case involving or growing out of a labor dispute on the basis that UTU and AD&N "are engaged in the same industry * * * or have a direct or indirect interests therein." Most courts considering the scope of section 13(a), however, have not relied on a literal reading. Instead, these courts have come to results in accord with the following test: when a non-struck employer seeks to have a union's activities enjoined by a federal court the case involves or grows out of a labor dispute and thus the Norris-LaGuardia anti-injunction provisions apply only when the offending activity is furthering the union's economic interest in a labor dispute. E. g., Brotherhood of Railroad Trainmen v. Atlantic Coast Line Railroad,
Under this "economic self-interest test," the subject matter of the present case the picketing of AD&N would involve or arise out of the UTU-Rock Island labor dispute if AD&N were "substantially aligned" with Rock Island. See, e. g., Brotherhood of Railroad Trainmen v. Atlantic Coast Line Railroad Co., supra. In Atlantic Coast Line the employer seeking injunctive relief against the picketing was a railroad terminal which was substantially aligned with the struck employer, a railroad, in the sense that the railroad had a one-quarter ownership interest in the terminal and received services from the terminal that "in fact constitute(d) an integral part of (the struck railroad's) day-to-day operations."
UTU would have us avoid this result by rejecting the economic self-interest test in favor of a literal application of section 13(a). UTU argues the narrower scope circumscribed by the self-interest test is invalid in light of the express language and historical purpose of the Norris-LaGuardia Act. We disagree. Although the plain language of a statute is often controlling, it is impermissible to follow a literal reading that engenders absurd consequences where there is an alternative interpretation that reasonably effects the statute's purpose. United States v. Ryan,
Read as a verbal formula, without regard to its background and to the rest of the Norris-LaGuardia Act, section 13(a) would operate to bar injunctive relief in any case involving persons with direct or indirect interests in the same industry, trade, craft, or occupation, regardless of whether any of these persons has an interest in a labor dispute. Consider, for example, a diversity case in which plaintiff seeks specific performance of a contract to sell real property. If both plaintiff and defendant belong to the same industry, trade, craft, or occupation, or have direct or indirect interests therein, a literal construction of section 13(a) would operate to deprive the federal courts of injunctive jurisdiction.12 The obvious lesson is that one cannot make sense of section 13(a) simply by focusing on the character of the parties; one must also consider the subject matter of the dispute. The Supreme Court has recognized as much in declining to follow a strict, technical construction of section 13(a) in cases that did not in fact involve a section 13(c) labor dispute, even though the cases plainly did involve adversaries with interests in the same industry. E. g., American Medical Association v. United States,
The background of the Norris-LaGuardia Act indicates its intended scope. The House report advocating passage of the Norris-LaGuardia anti-injunction provisions explains that their purpose was "to protect the rights of labor in the same manner the Congress intended when it enacted the Clayton Act * * *." H.R.Rep.No.669, 72d Cong. 1st Sess. 3 (1932). Section 20 of the Clayton Act provides that "in any case between an employer and employees * * * involving, or growing out of, a dispute concerning terms or conditions or employment," a federal court may not enjoin persons from "ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do." 29 U.S.C. § 52. In a series of cases, and particularly in Duplex Printing Press Co. v. Deering,
Read in light of this background, it is reasonable to conclude that section 13(a) was meant to preclude injunctive interference with bargaining or organizing on an industry-wide or craft-wide basis. It was not meant to extend an anti-injunctive shield for union activities beyond the place where the union's interests in a labor dispute cease. As one commentator explains:
* * * In this definition of labor disputes and of cases arising out of labor disputes, Congress gave complete recognition to certain theretofore proscribed stranger activities of unions in fulfillment of their heartfelt need to organize entire industries so that, by standardizing employment conditions throughout such industries, they could eliminate the competitive hazard to already established standards in existing unionized units of such industries, presented by the undercutting effects of nonunion wage and labor standard differentials.
As far as the federal courts were concerned, this act was Congress' green light to nation-wide union organizational campaigns, both for the purpose of securing the closed shop in individual units where a union was already established, and for unionizing all units throughout an entire industry the so-called "universal closed shop." It is as if Congress had said in this act:"This you may do, using the techniques we have suggested, as long as you can show that your union economic program, conceived as you and not anyone else sees it, is affected by the existing employment conditions in the units of the industry with which you are concerned. We have instructed the judges to withhold the use of the injunction against your self-help coercive activities directed along these lines. From now on it is up to you union people to promote your own economic interests, as you see them, within the area of conflict we have defined."
Gregory, supra, at 190, 192. But it remains that "participants in a labor dispute must be able to show an economic interest at stake in order to invoke the protection of the act at all." Id. at 194.14 See generally id. at 158-99.
We thus conclude that the economic self-interest test reasonably defines the scope of the Norris-LaGuardia Act's anti-injunction provisions. The district court was not clearly erroneous in finding that UTU demonstrated no economic interest in pressuring AD&N to cease helping F&P service its customer-owner Georgia-Pacific. Because AD&N and the struck Rock Island Railroad were not "substantially aligned," UTU's picketing of AD&N was not within the permissible area of economic conflict and thus was not protected by the Norris-LaGuardia Act.
B. Basis for Federal Jurisdiction
Having determined that the Norris-LaGuardia Act did not negate federal injunctive jurisdiction in this case, we address UTU's argument that federal law provided no basis for that jurisdiction. AD&N did not plead diversity of citizenship, but asserts that federal jurisdiction existed under the Railway Labor Act (RLA), 45 U.S.C. §§ 151-188, see 28 U.S.C. § 1331,15 and the Interstate Commerce Act, 49 U.S.C. §§ 1-27, see 28 U.S.C. § 1337.16 The district court, relying on Terminal Railroad Association v. Brotherhood of Railway Clerks, supra,
We hesitate to endorse the district court's reliance on the RLA because the rationale for invoking the RLA to enjoin the picketing involved in this case is not clear.17 The National Labor Relations Act specifies that certain forms of secondary pressure by unions are enjoinable, 29 U.S.C. § 158(b)(4), but the RLA refers expressly neither to secondary activities nor to injunctions.18 We do not doubt that secondary picketing may tend to subvert a general goal of the RLA the avoidance of "any interruption * * * to the operation of any carrier * * *." 45 U.S.C. § 151a(1). But the RLA's means of achieving this goal lies chiefly if not solely in the duties and procedures it creates "for the prompt and orderly settlement" of labor "disputes." 45 U.S.C. § 151a(4), (5).
It is true that federal courts have issued injunctions under the RLA to compel labor disputants to observe their duty to bargain over differences in good faith,19 Chicago & North Western Railway v. United Transportation Union,
Thus, unless we are to hold that the RLA flatly prohibits certain forms of secondary activity a point we do not reach the RLA justified an injunction in this case only if an injunction was necessary to promote or protect the RLA dispute settlement process. That process is relevant, obviously, only if there is a negotiable dispute within the contemplation of the Act.
Courts have characterized disputes under the RLA as either "major" or "minor." Negotiation over major disputes concerns changes in "rates of pay, rules, or working conditions," 45 U.S.C. § 151a(4), and thus looks to the formation of collective bargaining agreements. Minor disputes concern "interpretation or application of (existing) agreements," 45 U.S.C. § 151a(5), and thus involve the assertion of vested rights. See Elgin, Joliet & Eastern Railway v. Burley,
This statutory background illuminates AD&N's claim for injunctive relief under the RLA. UTU did not attempt to resolve its differences with AD&N through the RLA's administrative processes but instead resorted to picketing, without notice to AD&N. Although UTU had already exhausted RLA settlement procedures in its major dispute with Rock Island, AD&N argues UTU was also required to confer with AD&N or at least give notice of its intention to picket.
The difficulty with this argument is that the duties and procedures of the RLA are meaningful only in the presence of an RLA dispute.20 A controversy between striking employees and a non-struck employer is neither a major nor a minor dispute, for it concerns neither the formation or alteration of a collective bargaining agreement nor the interpretation or application of an existing agreement: no collective bargaining contract exists or can exist between the striking employees and the non-struck employer.21 Resort to the RLA settlement process would have been futile, for there was no bargaining agreement to reach.22
The RLA does recognize the possibility of a third kind of dispute "(a)ny other dispute," neither major nor minor which may be referred by either party to the Mediation Board if the dispute is "not adjusted in conference between the parties or where conferences are refused." 45 U.S.C. § 155 (First) (b). It is not at all clear, however, that this vaguely defined third category of disputes would encompass controversies between striking employees and non-struck employers, for the jurisdiction of the Mediation Board may well extend only to employer-employee disputes, see Note, Judicial Approaches to Secondary Boycotts Under the Railway Labor Act, 42 N.Y.U.L.Rev. 928, 933-34 (1967).
Although a more thorough examination of the RLA and other sources of labor law might well reveal a basis for federal injunctive jurisdiction,23 it is not necessary to dwell further on the RLA here inasmuch as a line of authority supports AD&N's alternative argument that the district court had injunctive jurisdiction under the Interstate Commerce Act. Federal district courts have "original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce * * *." 28 U.S.C. § 1337. Federal jurisdiction under the Interstate Commerce Act exists where the remedy sought is inferable from the Act or hinges on an interpretation of it. Garrett v. Time-D.C., Inc.,
The Interstate Commerce Act requires common carriers subject to its judrisdiction to provide "safe and adequate" transportation service "on reasonable request." 49 U.S.C. § 111o 1(a) (recodifying 49 U.S.C. § 1(1), (4)). A carrier may be liable in a federal damage action for the breach of this duty even when it is beset by labor controversies. Lakefront Dock & Railroad Terminal Co. v. ILA, supra,
UTU's picketing was not privileged. Although not clearly forbidden by the RLA, it was not endorsed, either.25 Nor, as we have held, was the picketing protected from federal injunctive jurisdiction by the Norris-LaGuardia Act. For that reason Order of Railroad Telegraphers v. Chicago & North Western R. Co.,
IV. Irreparable Injury
It remains to consider whether the district court, possessing injunctive jurisdiction, abused its discretion in issuing injunctive relief. Given that AD&N has made its case on the merits, the focus now is on a balancing of harms. UTU argues AD&N failed to show a potential irreparable injury such as would justify injunctive relief because the harmful effects alleged were the ordinary incidents of peaceful picketing. We disagree. AD&N's potential harm in the absence of injunctive relief transcended the ordinary in that the district court found that three quarters of AD&N's operation would be shut down by UTU's picketing. See Wilson v. Milk Drivers & Dairy Employees Local 471,
Affirmed.
Notes
The Honorable Robert L. Kunzig, Judge, United States Court of Claims, sitting by designation
UTU Local 1121 and its officers are also parties to this action. For convenience we refer to the defendant-appellants collectively as UTU
The Honorable Elsijane T. Roy, United States District Judge for the Eastern and Western Districts of Arkansas
The destination of at least some of this F&P freight was apparently the Georgia-Pacific plant complex at Crosset
We use the label "secondary" here not to imply any legal conclusion but to describe union activity, whether lawful or not, that is aimed at an employer other than the employer with whom the union has its primary dispute
Although we need not decide the question here, the appeal may also be justiciable on the ground that issues involved in the district court's order are "capable of repetition, yet evading review * * *." Southern Pacific Terminal Co. v. ICC,
Concluding that the Norris-LaGuardia Act's anti-injunction ban applied in this case would raise the further question of whether the Act's terms must be accommodated with subsequently-enacted legislation supporting injunctive jurisdiction. See, e. g., Boys Markets, Inc. v. Retail Clerks Union, Local 770,
There are indications in the record that AD&N personnel performed some rail switching tasks that before the strike were performed by Rock Island. Performance of these tasks was incidental to AD&N's own goal of serving Georgia-Pacific, however, and was not for the benefit of Rock Island This was not a case where the union was picketing an employer by doing "struck work" or by otherwise lending substantial aid to the struck employer. United Steelworkers v. NLRB,
Mutual participation in a strike insurance plan has been held to be a strong indication of substantial alignment. E. g., Southern Ry. v. Brotherhood of Ry. Clerks,
UTU seeks to demonstrate the "interrelatedness" of AD&N and Rock Island by emphasizing that F&P, which had common management and ownership with AD&N, leased rail cars from Rock Island. As the National Labor Relations Board has said in an analogous context, however, "(a) person does not become an ally of a struck employer by continuing a pre-strike business relationship." Drivers, Warehouse & Dairy Employees Local 75,
Concepts such as "allied employer" have been developed primarily by tribunals interpreting the National Labor Relation Act's ban on certain forms of secondary activity, see 29 U.S.C. § 158(b)(4). See generally Lesnick, The Gravamen of the Secondary Boycott, 62 Colum.L.Rev. 1363 (1962). UTU objects to the use of analogies drawn from section 158(b)(4) decisions for purposes of applying the anti-injunction provisions of the Norris-LaGuardia Act. That objection is out of place in light of our conclusion that the scope of Norris-LaGuardia's protection is determined by the union's self-interest. Under that test the relationship between the struck employer and the employer seeking injunctive relief is relevant to the question whether the case involves a labor dispute. We do not, of course, endorse the wholesale importation of section 158(b)(4) concepts into a Norris-LaGuardia inquiry. Nor do we suggest that the scopes of the Norris-LaGuardia Act (which protects some secondary activity) and section 158(b)(4) (which proscribes some secondary activity) are precisely complementary
While it is plaintiff's burden to establish compliance with Norris-LaGuardia's procedural requirements under 29 U.S.C. §§ 107, 108 once it appears a labor dispute it involved, the Act operates in the nature of an affirmative defense, leaving it up to defendant to show the Act has any application
Norris-LaGuardia Act § 7, 29 U.S.C. § 107, provides that no federal court has injunctive jurisdiction "in any case involving or growing out of a labor dispute" except under specified circumstances, including showings that the complainant's property will be subject to substantial and irreparable harm absent injunctive relief and that the responsible public officers have failed to protect complainant's property
Other cases in this series include Bedford Cut Stone Co. v. Journeymen Stone Cutters' Ass'n,
This view is at least arguable consistent with that of the influential promoters of the Norris-LaGuardia Act. Relying on Justice Brandeis' dissent in Duplex Printing Press Co. v. Deering,
Section 1331 provides federal district courts shall have original jurisdiction of civil actions that arise under federal law and involve matters in controversy in excess of $10,000
Section 1337 provides federal district courts shall have original jurisdiction of civil actions that arise under any federal statute regulating commerce
For discussions of the problems involved, see Wimberly, The Labor Injunction Past, Present, and Future, 22 S.C.L.Rev. 689, 719-22; McGuinn, Injunctive Powers of the Federal Courts in Cases Involving Disputes under the Railway Labor Act, 50 Geo.L.J. 46, 65-67 (1961); Recent Developments, 68 Mich.L.Rev. 346, 355-59 (1969); Note, Judicial Approaches to Secondary Boycotts Under the Railway Labor Act, 42 N.Y.U.L.Rev. 928, 933-38 (1967); Recent Developments, Railroad Secondary Boycotts: Railway Labor Act v. Norris-LaGuardia, 42 Wash.L.Rev. 935, 939-45 (1967)
The National Labor Relations Act's ban on secondary activities applies only to the activities of "labor organizations" which the Act defines as a representative of "employees," and excludes from its definition of employees those employees covered by the RLA. 29 U.S.C. §§ 152(3), (5), 158(b)(4)
RLA § 2 (First), 45 U.S.C. § 152, provides:
It shall be the duty of all carriers * * * and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interrpution to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.
AD&N cites several cases for the proposition that strikes by RLA unions over non-bargainable issues may be enjoined. E. g., Illinois Cent. R.R. v. Brotherhood of Locomotive Engineers,
AD&N did not attempt to enjoin the work stoppage of its own employees on the basis that it had a negotiable RLA dispute with them. AD&N therefore cannot rely on cases such as Northwest Airlines, Inc. v. Air Line Pilots Ass'n, Int'l,
A further difficulty is that AD&N did not attempt to invoke RLA procedures, see Manion v. Kansas City Terminal Ry.,
See, e. g., McGuinn, supra note 17, at 66-67 & n.73 (suggesting reliance on 45 U.S.C. § 155 (First) (b) or the "good faith bargaining" requirement of 45 U.S.C. § 152(1); Recent Developments, supra note 17, 68 Mich.L.Rev. at 346 (suggesting development of federal common law to govern secondary activity by RLA unions)
A judicial damage remedy against carriers was once expressly provided for in 49 U.S.C. §§ 8 and 9. These provisions were largely repealed in the Revised Interstate Commerce Act, Pub.L.No.95-473, § 4(b), (2), 92 Stat. 1466-70 (1978). This Act was meant to effect no substantive change, however, and it was expressly contemplated that private parties could invoke 28 U.S.C. §§ 1331, 1337 to seek remedies inferable from the duties imposed by the Act. H.R.Rep.No.95-1395, 95th Cong., 2d Sess., reprinted in (1978) U.S.Code Cong. & Admin.News, pp. 3009, 3016
"(T)he Act is wholly inexplicit as to the scope of allowable self-help." Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co.,