Appeal by unions and union officers representing employees of railroads from an order granting preliminary injunctions restraining the unions and union officers from striking in sympathy with a union engaged in a lawful strike against an air carrier. Modified and, as modified, affirmed.
Oakes, Kearse and Mahoney, Circuit Judges
Four railroads, The Long Island Railroad Company ("L.I.R.R."), Metro-North Commuter Railroad Company ("Metro-North"), NJ Transit Rail Operations, Inc. ("NJ Transit") and National Railroad Passenger Corporation ("Amtrak") (collectively the "Railroads") commenced separate actions in the United States District Court for the Southern District of New York against the International Association of Machinists and Aerospace Workers ("IAM") and various of its officers, together with numerous other unions named in the caption and various of their officers (collectively, sometimes including the IAM and its named officers, the "Unions"). The Unions, including IAM, represent employees of the Railroads. The IAM is on strike against Eastern Air Lines, Inc. ("Eastern"), and had expressed an intention to picket the Railroads. These actions seek injunctive relief requiring the Unions not to honor picket lines established by the IAM at the Railroads.
This appeal is taken from preliminary injunctions entered in the United States District Court for the Southern District of New York, Robert P. Patterson, Jr., Judge, which restrain the Unions, "their officers, agents, representatives and the employees represented by them, and all those in active concert or participation with them who receive notice of this [injunction]," from participating in "any . . . interruption in the operation of [L.I.R.R., Metro-North or NJ Transit] by and among any of [their] employees," or in the case of Amtrak, from participating in "concerted labor activity disruptive of Amtrak's normal rail operations." All of the preliminary injunctions provided that they were not to be construed to inhibit secondary picketing and other lawful strike activities by members of the IAM who are not employees of the Railroads.
We have jurisdiction of this interlocutory appeal pursuant to 28 U.S.C. § 1292(a)(1) (1982). A motion to expedite the appeal has previously been granted, see 29 U.S.C. § 110 (1982 & Supp. IV 1986), a motion to allow memoranda in excess of ten pages in support of a motion for stay pending appeal was implicitly granted by acceptance of the memoranda for filing, and a motion for consolidation of the appeals is hereby granted.
We modify the preliminary injunctions as hereinafter specified with respect to their impact upon individual employees represented by the Unions, and affirm the orders granting the preliminary injunctions, as modified. We deny the Unions' motion for a stay of said orders pending appeal.
On March 4, 1989, the IAM commenced a lawful strike against Eastern after exhausting without settlement the pertinent procedures mandated by the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-188 (1982), for negotiating changes in their collective bargaining agreement.*fn1 On February 2, 1989, the IAM informed the National Mediation Board of its general plans to engage in secondary picketing in the air, rail and manufacturing industries in connection with any strike against Eastern, and expressed at the outset of the Eastern strike its specific intention to picket the Railroads commencing Monday, March 6, 1989. The IAM actively sought support from the Unions in urging, encouraging and instructing their members to honor the IAM picket lines. The Unions stipulated in hearings below that if IAM picket lines are established at the Railroads, the Unions will encourage union members to honor them; that if the Unions encourage their members to honor the picket lines, the members are unlikely to cross them; and that if the employees do not cross the picket lines, the Railroads will be forced to cease operations. The evidence established that members of at least some of the Unions who disobeyed Union directives to honor picket lines would be subject to discipline through imposition of fines and expulsion from Union membership. Some Union representatives also intimated that injury to person and property could result from crossing picket lines set up by the IAM.
Evidence was also presented below that since most of the Unions represent employees of all four Railroads, and Amtrak interconnects and shares facilities with all of the other Railroads, the refusal of one union to cross JAM picket lines against any one of the Railroads could, in all probability, cause all of the Railroads to cease operations. Moreover, because of the operational interrelationship between Amtrak's intercity service and local commuter services, a refusal to cross IAM picket lines by any Union would likely prevent all passenger rail traffic from moving between cities in the northeast, and to some extent elsewhere.
On March 4, 1989, the L.I.R.R., Metro-North and NJ Transit moved for a temporary restraining order enjoining the Unions representing their employees from honoring the threatened IAM picket lines. On March 5, 1989, the district court held a six-hour hearing and issued temporary restraining orders granting the requested relief. On March 6, 1989, the court conducted a hearing and issued a temporary restraining order on a similar application by Amtrak.
A motion to the district court by the Unions to stay the orders pending appeal was denied. An appeal was then taken to this court, and the Unions promptly moved for expedited consideration of their emergency appeal, a stay of the temporary restraining orders pending appeal, and a writ of mandamus directing the district court to vacate the temporary restraining orders. This court denied the application for mandamus and noted that the matter of the temporary restraining orders could be reviewed after decision on the motions for preliminary injunctions.
The Railroads subsequently moved for preliminary injunctions in the district court. On March 13, 1989, the district court issued an Opinion and Order granting the Railroads' motion for preliminary injunctions "restraining [the Unions] from engaging in sympathy strikes, slowdowns, or other concerted labor activity, in connection with any picketing of plaintiffs by IAM's Eastern Air Lines members during the pendency of the Eastern Air Line/IAM strike." The Long Island Rail Road Co. v. International Ass'n of Machinists, 709 F. Supp. 376, 389 (S.D.N.Y. 1989) The injunctions were issued March 17, 1989 and filed March 20, 1989.
The preliminary injunctions were issued upon the district court's finding that there existed (1) a substantial likelihood that the Railroads would succeed on the merits, and (2) a clear risk of immediate and irreparable injury to the Railroads and the public that outweighed any hardship to the Unions. Regarding success on the merits, the district court noted that none of the pertinent collective bargaining agreements contained "no strike" clauses or provisions expressly permitting or prohibiting the honoring of picket lines.*fn2 Slip Op. at 15. Nonetheless, the court found that the agreements were "reasonably susceptible to the plaintiffs' interpretation that there is no right of defendants to engage in the contemplated sympathetic action under any of the collective bargaining agreements in issue," id. at 384, with the result that an arbitrable dispute existed as to whether the Unions had a right to encourage a secondary strike, id. at 27. The court determined that it had jurisdiction under the RLA to enjoin the strike pending compliance with the mandated RLA procedures, id. at 31, and that the stated purpose of the RLA "to avoid any interruption to commerce or to the operation of any carrier," see 45 U.S.C. § 152 First (1982), together with the Act's imposition of a duty to exhaust settlement procedures, would be a "nullity" if a temporary injunction did not issue, id. at 27.
Regarding harm to the Railroads, the court found that the cessation of plaintiffs' rail operations would result in immediate and irreparable injury to them in the form of economic losses and the loss of good will not compensable in monetary damages. Id. at 32. The court also found additional damage to the commuting public in the form of economic loss and inconvenience. Id. at 32-33. The court determined that these injuries decidedly outweighed ...