Appeal from the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
Before MARIS, CLARK, and BIDDLE, Circuit Judges.
This is an appeal from an order of Judge Kirkpatrick denying a temporary injunction against the officers and agents of three labor unions. The question involved is whether the trial judge had pwoer to issue the injunction under the provisions of the Norris-LaCuardia Act.*fn1
The appellant, Wilson & Co., is engaged in the wholeasale meat business, with a plant in Philadelphia, where it processes and stores meat, shipped to it in interstate commerce, and sells twenty-five per cent of its products in interstate commerce. There are three unions involved as defendants. Local 195, the meatcutters, includes all but five of appellant's production and maintenance employees. Local 107, the truckers, has all appellant's truckers; and the members of Local 18571 are the employees of a cold storage warehouse where appellant stores its products. On December 29, 1938, the meatcutters and truckers struck on account of the employment of the five nonunion maintenance men, to force on the employer a closed shop, and have picketed Wilson's plant, and persuaded its customers not to accept deliveries of goods, threatening them with picketing, and in some instances picketing their places of business. It is clear from the record that these activities were the result of a concerted effort of the three unions to bring about a closed shop. Judge Kirkpatrick found that there had been little violence in general, and no evidence that the three or four instances of violence had been ratified. This finding is supported by the record. As a result of the unions' activities appellant's business is virtually at a standstill.
The trial judge also specifically found that appellant had complied with § 8 of the Norris-LaGuardia Act*fn2 requiring that an empoyer make every reasonable effort to settle a labor dispute before being entitled to injunctive relief; that, with respect to § 7 of the Act,*fn3 greater injury would be inflicted upon the appellant by the denial of the relief asked for than upon the appellees by granting it; and that the appellant had no adequate remedy at law. Subsection (e) requires a finding that "the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection." As to this Judge Kirkpatrick said: "The picketing of the plaintiff's plant is being carried on under police supervision and control, and the police appear to have supplied protection against injury to physical property." He added that the plaintiff was not protected against loss of business with its customers. But it would be unreasonable to construe the subsection to include losses which the exercise of the powers of the police are hardly calculate to prevent. The words mean that only where the police can't or won't do their job of protecting physical property the court may step in. The act takes this executive function out of courts, and leaves it to the appropriate executive officer, unless he fails to function. Heintz Mfg. Co. v. Local No. 515, D.C. Pa., 20 F.Supp. 116.*fn4 There is nothing in the record to show that the police did not have the situation under control. On this ground alone the injunction could ahve been refused. Knapp-Monarch Co. v. Anderson, D.C. Ill., 7 F.Supp. 332, 337.*fn5
Section 7 makes one other prerequisite before an injunction can issue - that unlawful acts have been threatened or committed. Appellant argues that the acts of the union are unlawful under Pennsylvania law - striking for a closed shop, coercion of appellant's customers not to deal with it, the acts of violence (even though none were proved to have been authorized), picketing in greater numbers than calculated merely to publish the existence of the dispute. It is not necessary for us to discuss whether or not Pennsylvania law condemns these activities, although it may be pointed out that the legality of the closed shop is established by statute.*fn6 and the propriety of a strike to enforce it was recently recognized by our court.*fn7 For, as pointed out by the court below, § 4 of the act, 29 U.S.C.A. § 104, enumerates certain acts not subject to injunctive relief. The test is objective; not the purpose or intent of the acts sought to be restrained, and not even their illegality; but whether they come under § 4.
This section provides that no United States Court shall have jurisdiction to enter injunctions in labor disputes to prohibit persons from doing "whether singly or in concert" certain specified acts. These acts are classified under nine subsections, (a) to (i) inclusive; but we need consider only those which are applicable to the particular activities in this case. They are:
"(a) Ceasing or refusing to perform any work or to remain in any relation of employment." A strike, therefore, cannot be enjoined. Whether or not the strike in this case is illegal, because of its purpose, as argued by appellant, is therefore beside the point. The test is no longer given the uncertain elasticity of "illegality". The statute, dealing strictly with procedure, nowhere attempts to define as lawful the acts which it says may not be enjoined. The purpose of the act to remove the jurisdiction of courts to enjoin strikes as such is emphasized in § 9*fn8 which defines the manner in which the court shall make its findings. The injunction "shall include only 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 said findings of fact * * * ." A strike is not the type of specific act contemplated by the exception, which looks to a particular action of an individual, whether singly or in concert with another. We are of the opinion that Federal courts may no longer issue general injunctions against striking, but only to restrain specific acts of individuals, which we shall presently discuss.
The picketing here complained of averaged 10 to 15 persons at a time, and on one occasion rose to 97. The subsections dealing with picketing, found in (e) and (f), are as follows:
"(e) Giving publicity to the existence of, or the facts involved in, any labor dispute whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
"(f) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute."
Again, the uncertain test, expressed in the word "lawful" (picketing) is not employed.*fn9 If the picketing is peaceful, unaccompanied by acts of violence, irrespective of whether it may be mass picketing, and therefore according to appellant's argument illegal in Pennsylvania, it cannot be enjoined by a Federal court.Strikes and picketing are general acts, involving concerted efforts; the narrow limit of federal restraining power, under this act, is confined to forbidding defined acts of individuals.
It is true that the picketing ("assembling peaceably") referred to in (f) is "in promotion of their interests in a labor dispute." Obtaining a closed shop is clearly in furtherance of the interests of the strikers - an ...