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BROTHERHOOD OF MAINTENANCE OF WAY EMPLES. v. ASSOC

April 25, 1986

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Plaintiff,
v.
ASSOCIATION OF AMERICAN RAILROADS, et al., Defendants; ALTON AND SOUTHERN RAILWAY COMPANY, et al., Plaintiffs, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, et al., Defendants; CENTRAL VERMONT RAILWAY, INC., Plaintiff, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, et al., Defendants



The opinion of the court was delivered by: GREENE

 Plaintiff, Central Vermont Railway, Inc. (CVR), *fn1" has moved for a preliminary injunction *fn2" barring defendant Brotherhood of Maintenance of Way Employees (BMWE) and its employees from picketing plaintiff's rail yards in New England. Resolution of the motion presents issues of some difficulty, for it requires the Court to reconcile the apparently conflicting goals and purposes of two statutes: the Norris-LaGuardia Act, 29 U.S.C. § 107, which bars the courts from enjoining labor disputes, and the Railway Labor Act, 45 U.S.C. §§ 151-160, which mandates that railroad employers and employees engaged in a labor dispute must exhaust certain statutory remedies before resorting to self-help and, implicitly, that the assistance of the courts' injunctive power may be called upon to that end.

 I

 The dispute here has its genesis in a breakdown of contract negotiations between BMWE and two New England-based railroad companies, the Maine Central Railroad Company and Portland Terminal Company. Employees of Maine Central and Portland Terminal have been on strike since early March, and in response to that strike, Maine Central and Portland Terminal locked out their BMWE members. Since April 9, 1986, the BMWE has sought to enhance the bargaining position of its striking members by picketing the rail yards of various rail carriers doing business with the two struck carriers. Counsel for the BMWE candidly concede that the pickets' purpose is to discourage the carriers from doing business with the struck railroads and from moving their trains and freight over the struck carriers' lines, thereby to bring economic pressure to bear on the Maine and Portland companies to agree to a settlement favorable to the union.

 A large number of railroads from across the nation that had become targets of BMWE's secondary picketing campaign have previously sought a temporary restraining order from this Court enjoining the picketing as illegal. On that occasion *fn3" the railroads failed to show that the pickets had disrupted rail traffic or were likely to do so in the immediate future. *fn4" Accordingly, exercising caution in this delicate field, the Court denied injunctive relief, holding that the railroads had not established the requisite irreparable harm. WMATA v. Holiday Tours, 182 U.S. App. D.C. 220, 559 F.2d 841 (D.C. Cir. 1977). *fn5" CVR, by contrast, has established that BMWE's picketing has virtually closed down the operations of that particular railroad. On that basis, the Court can and must now for the first time address the merits of the underlying controversy.

 II

 The Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, generally bars the courts from issuing an injunction in any "case involving or growing out of a labor dispute." See 29 U.S.C. § 107. A labor dispute is "any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee." 29 U.S.C. § 113(c). Although the Circuits are in disagreement regarding the proper test, *fn6" this Court is persuaded, for the following reasons, that the dispute between CVR and BMWE is a "labor dispute" within the meaning of the Norris-LaGuardia Act under any appropriate construction of the statute.

 First, it is necessary to bear in mind the Supreme Court's pronouncement that "the term 'labor dispute' must not be narrowly construed." Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Association, 457 U.S. 702, 712, 73 L. Ed. 2d 327, 102 S. Ct. 2672 (1982). As the court there said, "the language is broad because Congress was intent upon taking the federal courts out of the labor injunction business except in . . . very limited circumstances." 457 U.S. at 712 (quoting Marine Cooks & Stewards v. Panama S.S. Co., 362 U.S. 365, 369, 4 L. Ed. 2d 797, 80 S. Ct. 779 (1960)).

 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. *fn7" 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).

 III

 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. *fn8" 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 ...


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