Friendly, Chief Judge, Lumbard and Oakes, Circuit Judges. Oakes, C. J. (dissenting).
This is an appeal by the National Association of Letter Carriers ("NALC") from an order of Judge Cannella in the District Court for the Southern District of New York, denying NALC's application for a preliminary injunction to enforce a trusteeship it had sought to impose upon one of its locals. The rapid-fire chronology of events in this case was as follows:
Shortly before June 25, 1971, Branch 36, a NALC local, and its president, Vincent Sombrotto, scheduled a strike vote to be conducted jointly with the Manhattan Bronx Postal Union ("MBPU"), a labor organization not affiliated with NALC, on July 1st. The vote was to be preceded by a rally on June 30th, and President Sombrotto urged his members to vote YES on the strike issue. An affirmative vote would not result in an automatic strike. Rather, it would authorize Sombrotto (and his counterpart in the MBPU) to call a strike any time after July 25, 1971, a few days after the close of the third stage in negotiations between the postal unions and the United States Postal Service. While these later resulted in a national agreement, that consequence could not be predicted at the time.
On June 25, 1971, pursuant to Article X of the NALC Constitution, Elliott Peacock, a member of the Washington, D.C. branch of NALC, brought before the NALC executive council a complaint against the officers of Branch 36. He charged that they had violated and were violating certain provisions of the NALC Constitution
"by binding Branch 36 to another organization without requisite endorsement and by taking actions and making statements for the purpose, and tending to have the effect, of destroying the NALC, encouraging a rival to it and bringing about one or more violations of the legal and contractual obligations of NALC not to strike."
In response to these charges NALC President James Rademacher appointed Francis Conners to investigate the charges and report to the executive council within thirty days. At the same time, believing that the officers of Branch 36 were "conducting the affairs of said Branch in such a manner as to jeopardize the interests of the NALC, Branch 36 and its members," and concluding "that an emergency situation exists within said Branch and that immediate imposition of a trusteeship [was] necessary to assure performance of the legal and contractual obligations of NALC and to effectuate the legitimate objectives of Branch 36," Rademacher exercised his powers under Article XIX of the NALC Constitution to appoint a trustee, Bernard Murphy, "to take charge of and control the affairs of Branch 36." Simultaneously with the proclamation of trusteeship, Rademacher appointed Francis Conners to conduct a hearing, commencing on July 9th, on whether the trusteeship should be continued.
Despite this compliance with NALC Constitutional procedures governing imposition of a trusteeship, the officers of Branch 36 refused to comply with Rademacher's direction. When Murphy appeared at the office of Branch 36 on June 28th, he was informed that the officers would not accept their removal from office, would not turn over the monies, books and properties of the Branch, and, in short, would not recognize the trusteeship. Faced with this resistance to the trusteeship, NALC and its would-be trustee Murphy, on June 29, 1971, filed a complaint in the District Court for the Southern District of New York, reciting the facts detailed above and seeking, so far as here relevant, a temporary restraining order and preliminary injunction to enforce the trusteeship against Branch 36 and its officers and to prevent their participation in the strike vote scheduled for July 1st.
By an order dated June 30, 1971, Judge Cannella denied NALC's application for a preliminary injunction, stating that "there was little showing that the plaintiffs are likely to prevail on the merits"*fn1 and that he was not persuaded NALC might suffer more harm by denial of its application than Branch 36 might suffer in the event it was granted. NALC immediately applied to this court for relief. On July 1st, a panel ordered that the strike authorization votes be impounded without being counted and that the case be set for expedited appeal.
At the outset, it should be noted that because of the national agreement subsequently reached between the United States Postal Service and the NALC, much of the urgency in this appeal disappeared shortly after the case was argued. Indeed, Judge Oakes in dissent seems to suggest that at least we should remand the case for the district court to consider the effect of the supervening national agreement on the request for a preliminary injunction. In support of such action, he cites McLeod v. General Elec. Co., 385 U.S. 533, 87 S. Ct. 637, 17 L. Ed. 2d 588 (1967). There the district court had issued a temporary injunction under section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j), restraining G.E. from "failing or refusing to meet, confer, or bargain collectively in good faith with . . . [union representatives] . . . ." Following reversal by this court, the Supreme Court ordered the case remanded to the district court for further consideration in light of an agreement reached by G.E. and the union subsequent to the decision on appeal. The situation in the instant case is quite different. The supervening event in McLeod may very well have eliminated the need for a section 10(j) injunction since the goal the injunction was intended to further had been achieved. In this case, there is no basis for believing that the national postal agreement has also disposed of the dispute between Branch 36 and NALC. Unlike the situation in McLeod, it does not automatically follow from the fact of the national agreement that the differences between these parties have been resolved--or have disappeared--and that the trusteeship question is moot. To the contrary, all indications in response to questions by this court have been that the parties remain unable to reach any agreement that would justify further preliminary proceedings below--much less make decision by this court unnecessary. In short, we find this to be a substantially different case from McLeod, and one in which remand to the district court in light of developments since its decision would not be warranted. We thus proceed to the questions raised on this appeal.
Initially, we are confronted with a question of the district court's jurisdiction to enforce the trusteeship against the resisting local. We shall first consider this apart from the problems raised by § 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104, and shall then address ourselves to those questions.
Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), provides federal jurisdiction to entertain "suits for violation of contracts between . . . any labor organizations [representing employees in an industry affecting commerce]." On its face, this language constituted a clear predicate for jurisdiction at the time the complaint was brought to enforce the relevant provisions of the NALC Constitution. See Parks v. International Brotherhood of Elec. Workers, 314 F.2d 886, 914-17 (4 Cir.), cert. denied, 372 U.S. 976, 10 L. Ed. 2d 142, 83 S. Ct. 1111 (1963); cf. Abrams v. Carrier Corp., 434 F.2d 1234, 1247-48 (2 Cir. 1970), cert. denied, 401 U.S. 1009, 91 S. Ct. 1253, 28 L. Ed. 2d 545 (1971). Section 1208(b) of the 1970 Postal Reorganization Act, 84 Stat. 719, 39 U.S.C. § 1208(b), which for purposes here relevant came into effect on July 1, 1971, tracks the language of § 301 of the Labor Management Relations Act, making explicit that such jurisdiction will extend to suits for violations of contracts between labor organizations representing employees of the United States Postal Service.
It is true that the only explicit provision in the Landrum-Griffin Act with regard to suits concerning trusteeships in § 304(a), 29 U.S.C. § 464(a), which expressly authorizes federal courts to grant relief--"including injunctions"--to any "member or subordinate body of a labor organization" which unlawfully imposes a trusteeship. As is clear on the face of the statute, as well as from the legislative history, see H.R. Rep. No. 741, reprinted in U.S. Code Cong. & Adm. News, 86th Cong., 1st Sess. 2424, 2437 (1959), this section authorizes federal courts to issue injunctions only to prevent the maintenance of an illegal trusteeship, not to impose a trusteeship. On the other hand, the statutory framework clearly contemplates the establishment of a trusteeship by a parent union over a local when the parent's constitution and by-laws so provide and the trusteeship is imposed for certain enumerated purposes, 29 U.S.C. § 462. If locals were permitted to refuse to accept trusteeships and the federal courts have no jurisdiction to assist parent unions, the trusteeship scheme established by Congress would be effectively thwarted. Apart from Norris-LaGuardia, we would thus see no basis for excluding a suit to impose a trusteeship from the sufficiently broad language of § 301(a) of the Labor Management Relations Act or § 1208(b) of the Postal Reorganization Act.
When we turn to § 4 of the Norris-LaGuardia Act, we immediately encounter United States v. United Mine Workers, 330 U.S. 258, 269-80, 91 L. Ed. 884, 67 S. Ct. 677 (1947), where the Supreme Court held that the United States in its relations with its employees is not subject to the anti-injunction provisions of that section. Apparently no case has determined whether the same implicit exemption exists where the dispute is between federal employees. We do not consider it necessary to resolve that question here. Instead, we shall assume this point in appellees' favor, without deciding it, and will consider the ...