bring economic pressure upon a shopping center developer who was constructing space for a new food market owned by the operator of the boycotted markets, constituted a labor dispute under 29 U.S.C. § 107. The Ninth Circuit found that "the Union . . . [was] acting against a secondary employer . . . in an effort to promote the interest of the members of the Union in a contest with a primary employer . . . over terms and conditions of employment." Id. at 790. That is also the case here.
Third, even if this Court were to adopt the more restrictive test of cases such as Ashley, Drew & Northern Ry. v. United Transportation Union, 625 F.2d 1357 (8th Cir. 1980), which stated that the controversy there did not constitute a labor dispute within the meaning of the Norris-LaGuardia Act because the secondary target was not "substantially aligned" with the struck employees, and accordingly approved the issuance of an injunction, the result there reached would not follow here. The evidence in this case demonstrates that a significant exchange of freight and rail cars occurs between the CVR and the struck carriers, thus creating the "significant commonality of interest" between the primary and secondary targets required by Ashley to invoke Norris-LaGuardia.
Accord, Brotherhood of Railroad Trainmen v. Atlantic Coast Line R.R., 362 F.2d 649, 651 (5th Cir.), aff'd by an equally divided court, 385 U.S. 20, 87 S. Ct. 226, 17 L. Ed. 2d 20 (1966).
Considering only the Norris-LaGuardia Act, therefore, Congress' directive to the courts to refrain from interfering by injunction in an economic struggle between employer and employee clearly applies to this case.
The analysis cannot stop there, however. The Railway Labor Act (RLA) demands that employers and employees in a covered industry make use of statutorily-created dispute resolution mechanisms before resorting to strikes, pickets, or other self-help remedies. If that mandate of the RLA is to have any practical effect, it must be judicially enforceable notwithstanding the Norris-Laguardia Act, and the courts have so held. See Chicago & North Western Ry. Co. v. United Transportation Union, 402 U.S. 570, 582, 29 L. Ed. 2d 187, 91 S. Ct. 1731 (1971). In other words, the RLA offers an exception to the Norris-LaGuardia mandate in some circumstances.
While that much is clear, the scope of that exception is not easily defined because legislative and appellate guidance is scant. The problem is exacerbated here because the factual situation presently before this Court appears to be unprecedented.
That having been said, the Court has available some guidelines, particularly those laid down by the Supreme Court in the Chicago & North Western case, supra. According to the decision in that case, what a trial court must do when confronted by an action which involves both Norris-LaGuardia and the RLA is to "trace out as best [it] can the uncertain line of appropriate accommodation of two statutes with purposes that lead in opposing directions." Id. However, the statutory mandates are not to be accorded equal weight: the provisions of the Norris-LaGuardia Act enjoy a certain advantage, for "the vagueness of the [RLA's] obligation . . . [must not be permitted to] provide a cover for freewheeling judicial interference in labor relations of the sort that called forth the Norris-LaGuardia Act in the first place." Id. at 583. "These weighty considerations . . . counsel restraint in the issuance of strike injunctions based on violations of [the RLA]." Id. Restraint is even more appropriate in a case involving picketing rather than an actual strike, if only because the threat of disruption to interstate commerce that the RLA is designed to avoid, see 45 U.S.C. § 152 (First), may be less where only pickets are involved.
For all these reasons, plaintiff's broad assertion that "an injunction can issue where a union's threatened or actual conduct violates its obligations under the RLA" (Plaintiff's Memorandum at 20) does not constitute a correct statement of the law; the RLA exception to the Norris-LaGuardia Act is far narrower than that. The Supreme Court instructed the lower courts in Chicago & North Western to issue an injunction in an RLA case only "when such a remedy is the only practical, effective means of enforcing the duty to exert every reasonable effort to make and maintain agreements . . . ." 402 U.S. at 583. The duty to which the Court referred in that instruction is the duty of the parties to exhaust the various steps of notice, conference, and mediation (hereinafter generally referred to collectively as mediation) set out in the RLA before resorting to self-help. See Detroit & Toledo Shore Line R.R. v. United Transportation Union, 396 U.S. 142, 149, 24 L. Ed. 2d 325, 90 S. Ct. 294 (1969); Railway Clerks v. Florida E.C. R.R., 384 U.S. 238, 246, 16 L. Ed. 2d 501, 86 S. Ct. 1420 (1966).
It is also clear from the cases that, in establishing these procedures, Congress did not intend to deprive the union of its self-help option -- direct economic pressure to induce the employer to meet the employees' demands. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378-79, 22 L. Ed. 2d 344, 89 S. Ct. 1109 (1969). "[The RLA's] compulsions go only to insure that [its] procedures are exhausted before resort can be had to self-help. No authority is empowered to decide the dispute and no such power is intended . . . ." Id. at 380 (quoting Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 725, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945)). Implicit in the statutory scheme is the possibility that a dispute may not be resolved by the RLA mediation procedures, and that a party may then seek to resolve the dispute through any method of economic pressure, including a nationwide picket of rail carriers if such pickets are otherwise lawful. See id. at 378. At that stage, an injunction could not validly issue.
Thus, under Chicago & North Western Ry. Co., this Court may enjoin the BMWE pickets only if an injunction is "the only practical, effective means" of enforcing the RLA's mediation procedures. 402 U.S. at 583. The union's duty to observe these procedures in its dispute with the primary targets -- the Maine and Portland companies -- could not now justify an injunction, because with respect to these companies that duty has been fully discharged. Both parties cooperated with the Mediation Board; that Board attempted to reach an accommodation through mediation; but after one and one-half years of this process an impasse was reached.
With respect to those companies, therefore, BMWE finds itself exactly in the position contemplated by Jacksonville Terminal -- free to utilize self-help after exhaustion of the RLA's dispute resolution remedies.
This conclusion leads to the most difficult of the issues before the Court: once a union has fully complied with the RLA dispute resolution process with respect to the primary employer, must it also utilize that process with respect to any secondary employer it pickets
as a means of economic pressure on the primary employer in order to be entitled to the benefit of the no-injunction mandate of the Norris-LaGuardia Act?
On that issue, the CVR asserts that its controversy with the union over secondary picketing is a dispute separate and distinct from the contract disagreement between the union and the struck Maine carriers, and that failure of the union to cooperate in mediation
pursuant to the RLA with respect to the "secondary dispute" constitutes a violation of the RLA. It follows, according to the railroad, that judicial refusal to issue an injunction would deprive it of "the only practical, effective means" of enforcing its independent right to request RLA mediation. That argument is certainly not without persuasive force. However, upon full consideration and reflection, the Court has concluded that it does not sufficiently take account of the considerations underlying the two statutes, and that it must be rejected.
First, while a dispute exists between CVR and the union, it is an extremely narrow one. The only dispute between these parties involves the legal question whether the pickets at plaintiff's rail yards should or should not be allowed to continue. Unlike a dispute over such practical subjects as wages or working conditions,
there is nothing here that can realistically be mediated.
Second, as indicated at slip op at pp. 9-10, supra, secondary picketing, whether following upon the unsuccessful exhaustion of mediation or where mediation is not appropriate, is a lawful self-help remedy in the railroad industry. Indeed, the Supreme Court held in Jacksonville Terminal, supra, that "picketing -- whether characterized as primary or secondary -- must be deemed conduct protected against state proscription." 394 U.S. at 393. Although plaintiff has argued in various ways for a limitation of the holding of Jacksonville Terminal, the only logical interpretation of that decision as applied to this case is that the BMWE has the right without fear of court interference to initiate secondary pickets against CVR in aid of its dispute with the Maine and Portland companies.
Third, the Court could not order mediation of this secondary "dispute" between the railroad and the union without severely undermining the careful balance of the RLA, in which Congress sought on the one hand to discourage disruptions of interstate commerce, while preserving on the other the parties' ultimate resort to self-help. See Jacksonville Terminal, 394 U.S. at 379. If the plaintiff's argument were accepted by the Court, the union would for all practical purposes be deprived of the opportunity to exert economic pressure on the primary target through secondary activity. The District Court for the District of Maryland, in Western Maryland R.R. Co. v. System Bd. of Adjustment, 465 F. Supp. 963, 968 (D. Md. 1979), a case not unlike this one, agreed several years ago that secondary picketing is not a dispute capable of mediation under the RLA:
The defendant union has exhausted all settlement procedures under the Railway Labor Act, and is presently engaged in a self-help effort against the N & W. Its "dispute" with the plaintiff carriers is no more than incident to its underlying dispute with the N & W. By their reading of the Act, plaintiffs would effectively reduce the weapons available to labor once the "resort to economic warfare" has been authorized by initial compliance with the settlement procedures of the Act. These weapons include the strike and secondary picketing aimed at shutting down the operation of a target employer by appealing to all affiliated workers to cease labor on his behalf. It is clear that once settlement procedures have been exhausted, the Act does not authorize the Court, or any other arm of government, to intervene to alter the balance of economic forces in favor of one side or the other. See, e.g., Railway Clerks v. Florida E. C. R. Co., 384 U.S. 238, 86 S. Ct. 1420, 16 L. Ed. 2d 501 (1966).