Hays, Mansfield and Oakes, Circuit Judges.
The parties to this appeal have come down the now-familiar path which winds between state and federal labor law, with management trying to bypass the anti-injunction provisions of the Norris-LaGuardia Act, 29 U.S.C. § 107, and the union sidestepping the doctrine of Dowd Box Co. v. Courtney, 368 U.S. 502, 7 L. Ed. 2d 483, 82 S. Ct. 519 (1962), and Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 7 L. Ed. 2d 593, 82 S. Ct. 571 (1962), that Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), does not deprive the state courts of jurisdiction, even though the state court may be enforcing rights created by federal law. The quarrel here is whether, with Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 8 L. Ed. 2d 440, 82 S. Ct. 1328 (1962), overruled and out of management's way, Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970), permitting a strike to be enjoined when the labor-management contract contains a no-strike and a binding arbitration clause, presents an impassable roadblock to the union.
On March 1, 1971, the Morning Telegraph obtained an ex parte temporary restraining order from the Supreme Court of the State of New York, enjoining the defendant New York Typographical Union No. 6 ("Union") from engaging in a work slowdown in the composing room of the Morning Telegraph, at its offices in New York City. The restraint was to continue in effect until a hearing scheduled for March 3, 1971, but was extended automatically by 28 U.S.C. § 1450*fn1 when removed by the Union to the federal district court under 28 U.S.C. § 1441 and Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 20 L. Ed. 2d 126, 88 S. Ct. 1235 (1968), permitting removal to federal court of a § 301 suit initially brought in state court.
Judge Bonsal of the Southern District of New York heard the Union's first motion to vacate the temporary restraining order on March 9, 1971. By order dated March 23, 1971, he denied the Union's motion on the authority of Boys Markets, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970), finding that the collective bargaining agreement between the parties contained a no-work-stoppage clause and a corresponding provision for the settlement of grievances through arbitration. Judge Bonsal granted the Union leave to renew the motion to dissolve if and when it saw fit to state the nature of the grievance which precipitated the work slowdown. Rather than take up Judge Bonsal on his invitation to specify the grievance, however, the Union renewed its motion to dissolve the restraining order, arguing, this time before Judge Metzner, that no hearing on preliminary injunctive relief had been held within the ten-day limit prescribed by Rule 65(b), Fed. R. Civ. P., and that the temporary restraining order therefore had necessarily expired. Judge Metzner ruled that the hearing on March 9, 1971, had satisfied the requirements of Rule 65(b), and that Judge Bonsal's order of March 23, 1971, was in effect a renewed grant of preliminary injunctive relief with no ten-day limitation.
The Union subsequently appealed both the order of Judge Bonsal and that of Judge Metzner, and filed a third motion to vacate the restraining order, which was heard by Judge Motley on April 27, 1971. Judge Motley found the district court without jurisdiction while the two appeals were pending, and denied the Union's motion from the bench. The Union then appealed Judge Motley's ruling. The three appeals have been consolidated here.
At the outset, we must decide whether we have jurisdiction under 28 U.S.C. § 1292 to review the orders of Judges Bonsal, Metzner and Motley. We start, of course, from the premise that an appeal will lie from the grant or denial of a preliminary injunction but not from the grant or denial of a temporary restraining order. Grant v. United States, 282 F.2d 165 (2d Cir. 1960). The difficulty arises in characterizing a given order.
Neither Judge Bonsal nor Judge Metzner characterized his order as a preliminary injunction, but "in applying this distinction the label put on the order by the trial court is not decisive." Wright, Federal Courts 459 (2d ed. 1970), quoted with approval in Belknap v. Leary, 427 F.2d 496, 498 (2d Cir. 1970). Here, the practical effect of the refusal to dissolve the temporary restraining order was the equivalent of a grant of preliminary injunctive relief. Peabody Coal Co. v. Barnes, 308 F. Supp. 902 (E.D. Mo. 1969).
The primary distinguishing characteristics of a temporary restraining order, under the Federal Rules, are its availability as an ex parte remedy, and its propensity to self-destruct after twenty days, at the outside. A preliminary injunction, on the other hand, has no such time limit, as it is by force of law granted only after both sides have been heard. The Union was heard on the propriety of preliminary relief in this case not once but three different times. And Judge Metzner specifically stated that he was eliminating any time limit from the restraint. We will therefore treat Judge Metzner's order as a preliminary injunction. Judge Motley's order thus stands as a refusal to dissolve an injunction and is likewise appealable under 28 U.S.C. § 1292(a), but as we hold that Judge Metzner's order was appealable, the question is moot in a sense, for Judge Motley was correct that she had no jurisdiction to consider an order which had already been appealed. O'Brien v. Avco Corp., 309 F. Supp. 703, 705 (S.D.N.Y.), rev'd on other grounds, 425 F.2d 1030 (2d Cir. 1969).
The Union's initial refusal to state its grievance, and its subsequent oblique references to employee representation in the Morning Telegraph's Hightstown, New Jersey, plant, have made the record in this case something less than illuminating, and the disposition, at either the trial or appellate level, something less than facile.
The affidavit of Bertram Powers, president of the Union, not filed until after Judges Bonsal and Metzner had issued their rulings, states that "the dispute arose out of the issue of representation of plaintiff's production employees employed at its Hightstown, New Jersey plant" (original emphasis), and that the Union had been granted jurisdiction over "production work" at Hightstown by the Executive Council of the ITU. But we are nowhere told the difference, if any, between production work and other composing room work, or whether "production work" is composing room work at all. Elsewhere in the record it appears that Triangle Publications publishes, or plans to publish in the near future, the Daily Racing Form, the Eastern Edition of which will apparently be printed in Hightstown, New Jersey. We are not told whether Triangle Publications does any work on the Morning Telegraph in Hightstown now, or if and when it plans to in the future. Nor are we told anything about the employees who now work in Hightstown and are apparently represented by the Trenton Typographical Union. We do not know, for instance, whether they are production workers, and we have no indication whether they work on the Morning Telegraph or the Daily Racing Form. We are left, then, with little else than the contract itself.
The Union's contract with Triangle Publications is written in the form of an agreement supplemental to an earlier contract between the same Union and the Publishers Association of New York City, an organization representing the Long Island Press Company, the New York News, the New York Post Corporation and the New York Times Company. The earlier agreement (hereinafter the "underlying contract") was to be in effect for three years, from March 31, 1970, to March 30, 1973. The portion of the underlying contract dealing with strikes and work stoppages is the following:
4. It is the intention and the desire of the parties hereto that no strike or other interruption of normal employment or production shall occur during the life of this agreement. To this end the Union and the Publishers commit themselves to the orderly settlement of disputes as provided herein. However, New York Typographical Union No. 6 reserves to itself the right to direct its members to support a strike of this Union or of New York Mailers' Union No. 6, I.T.U., against any Publisher or Publishers signatory hereto which strike has been authorized under the laws of the I.T.U. Should such support or should unauthorized work stoppages by members of Typographical Union No. 6 result in substantial curtailment of composing room operations, the Publisher or Publishers thereby affected reserve the right to be relieved of the prohibition against the use of substitute processes or operations as provided in the jurisdictional section hereof during the period in which such support is granted or ...