Before Friendly and Smith, Circuit Judges, and Watkins, District Judge.*fn*
FRIENDLY, C. J.: This appeal raises important questions as to the interrelations of the Railway Labor Act, 45 U.S.C. §§ 151 ff., and the Norris-LaGuardia Act, 29 U.S.C. §§ 101 ff.
The appeal, brought under 28 U.S.C. § 1292(a)(1), is by the Switchmen's Union, whose principal office is in Buffalo, and certain of its officers, from an order of the District Court for the Western District of New York granting a motion of appellee railways, operating primarily in western states, for a temporary injunction against a strike. The strike threat grew out of a "major" labor dispute over rates of pay. The dispute had progressed through all the stages provided for in the Railway Labor Act, including the expiration of thirty days after a report by an Emergency Board to the President as provided in § 10.
After a two day hearing, the District Court found that "At no time since the services of the notices of March 2 and March 20, 1959, have the defendants or any representatives of the defendants engaged in good faith efforts to reach final agreement with the Western Carriers' Conference Committee," with certain exceptions, and that "There are serious, substantial, difficult, and doubtful questions going to the merits of this case as to whether" defendants had complied with their statutory obligations to that end, imposed by § 2 First and Second of the Railway Labor Act. The Court found also, as is not denied, that a strike by the switchmen would cause irreparable injury to the plaintiff railways, as well as serious damage to the public and to other railway employees.
Appellants assert the injunction went beyond the Court's "jurisdiction" as limited by the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115. Appellees deny this, and contend also that the scope of our review of this temporary injunction is limited to determining whether the District Court abused its discretion in deciding that plaintiffs had raised substantial questions requiring more deliberate investigation and that the harm plaintiffs would suffer from denial of the injunction outweighed any damage to defendants from its grant. Both sides claim their positions to be supported by pertinent decisions of the Supreme Court. The decisions do not speak to us with the clarion (but opposite) effect they do to the parties. Analysis of the statutes and the cases is needed to bring the issue into focus.
The Norris-LaGuardia Act of 1932 divides injunctive orders in labor disputes into two categories. Section 4 is a flat prohibition of certain types of injunctive orders - or, more accurately, it would be if Norris-LaGuardia were to be read alone. Among these are orders against "(a) Ceasing or refusing to perform any work or to remain in any relation of employment"; "(g) Advising or notifying any person of an intention to do any of the acts heretofore specified"; "(h) Agreeing with other persons to do or not to do any of the acts heretofore specified"; and "(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified." Significantly, § 4 includes not only temporary and permanent injunctions but temporary restraining orders as well. Although § 4 alone would seem clear enough, § 5 adds that no court of the United States "shall have jurisdiction to issue a restraining order or temporary or permanent injunction upon the ground that any of the persons participating or interested in a labor dispute constitute or are engaged in an unlawful combination or conspiracy because of the doing in concert of the acts enumerated in" § 4.
However, the list of prohibited orders in § 4 is far from being a complete catalogue of all the injunctive orders issuable in labor disputes. As to these others, § 7 imposes not a prohibition but limitations; the court shall not issue "a temporary or permanent injunction in any case involving or growing out of a labor dispute" except after hearing testimony in open court and unless the court makes specified findings, of which that most directly pertinent here is:
"(a) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, * * *"
If substantiation of the distinction between the two sections were needed, the legislative history would furnish it in ample measure.*fn1
Six years earlier Congress had enacted the Railway Labor Act of 1926, c. 347, 44 Stat. 577. This contained, inter alia, the provisions for settlement of disputes by agreement mentioned above ( § 2), and also provisions for boards of adjustment "to hear and, if possible, decide" minor disputes*fn2 which the carriers and employees had agreed to refer ( § 3), for invocation of the services of a Board of Mediation ( §§ 4, 5), and for the Presidential appointment of an Emergency Board ( § 10).
The debates on the Norris-LaGuardia Act indicate concern over its interrelation with the earlier Railway Labor Act. Representative Beck of Pennsylvania offered an amendment that would have excluded from Norris-LaGuardia labor disputes involving the suspension or discontinuance of a public utility whose operation was essential to property, health and life (75 Cong. Rec. 5503). The amendment was defeated, 75 Cong. Rec. 5505; but only on assurance from Representative LaGuardia that, at least as to railroads, it was unnecessary, since the Railway Labor Act "provides every detail for the settlement of disputes" and "The workers could not and would not think of going on strike before all the remedies provided in the law have been exhausted" (75 Cong. Rec. 5504).
Two years after the Norris-LaGuardia Act, Congress, in 1934, reenacted the Railway Labor Act with important amendments, c. 691, 48 Stat. 1185. Especially significant for understanding the Supreme Court decisions relied on by the parties were the addition of § 2 Ninth, providing for the National Mediation Board to certify the authorized representative of a class or craft of employees and requiring a carrier to treat with the representative so certified, and extensive amendment of § 3 giving either party the right to refer minor disputes to the Adjustment Board, § 3 First (i), and making the awards of the Board in such disputes "final and binding upon both parties to the dispute * * *," § 3 First (m).
Texas and N.O.R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548 (1930), the initial Supreme Court decision involving an injunction to enforce the Railway Labor Act, antedated Norris-LaGuardia. Such bearing as it has on the present controversy comes from the statement of Chief Justice Hughes, as a step in reaching the Court's conclusion, that the prohibition of § 10 against changes "in the conditions out of which the dispute arose," during study by and for thirty days after the report of an Emergency Board, "manifestly imports a legal obligation," which, as insisted by counsel for the Brotherhood, who had represented principal railway labor organizations at the hearings on the Railway Labor Act, authorized "any court of competent jurisdiction to restrain either party to the controversy from changing the existing status" during the period, 281 U.S. at 565-566.
Virginian Ry. Co. v. System Federation No . 40, 300 U.S. 515 (1937), came after Norris-LaGuardia, and after the 1934 amendment of the Railway Labor Act as well. As in the Texas and New Orleans case, the injunction was against the carrier, its principal thrust being a direction to bargain with a union designated by the Mediation Board under § 2 Ninth. No contention was or could have been made that this portion of the injunction violated § 4 of Norris-LaGuardia; the only Norris-LaGuardia contention specifically mentioned in the Supreme Court's opinion was one under § 9, which limits an injunction to "a prohibition of such specific act or acts as may be expressly complained of in the bill of complaint * * * and as shall be expressly included in * * * findings of fact made and filed by the court * * *" The Supreme Court deemed it "unnecessary to comment on other similar objections, except to say that they are based on strained and unnatural construction of the words of the Norris-LaGuardia Act. * * *" Examination of the briefs shows these objections included alleged violations of § 7(a) for lack of proof of "unlawful acts" and also of § 4(e), which prohibits injunctions against peaceful publicizing of a labor dispute, but the claim that the injunction had done the latter was scarcely made out. Mr. Justice Stone disposed of all Norris-LaGuardia objections by saying "It suffices to say that the Norris-LaGuardia Act can affect the present decree only so far as its provisions are found not to conflict with those of § 2, Ninth, of the Railway Labor Act, authorizing the relief which has been granted. Such provisions cannot be rendered nugatory by the earlier and more general provisions of the Norris-LaGuardia Act," 300 U.S. at 562-563. This language affords much opportunity for spinning gossamer. It could be read to mean that Norris-LaGuardia is wholly inapplicable to a controversy arising solely under a provision added to the Railway Labor Act in 1934; such a ...