The opinion of the court was delivered by: DUSEN
Plaintiff, a wholesale processor, storer and seller of automobile parts moving to it in interstate commerce, secured a mandatory injunction on December 21, 1956, requiring the two defendant common carriers of goods in interstate commerce to deliver goods consigned to it. The injunction was issued after hearings held on December 19 and December 21, 1956, at which testimony was presented showing, inter alia, that no deliveries had been made to plaintiff since November 27, 1956, in spite of reasonable requests therefor, that plaintiff was losing its customers through inability to supply them, that lack of business had required it to discharge over one-third of its nonsupervisory employees, that plaintiff's business would be ruined unless it received deliveries and these defendants have been, since November 27, 1956, making deliveries of like traffic to other consignees at the request of other shippers, as well as pick-ups from other shippers of like traffic. According to defendants' drivers,
their failure to deliver was due to the personal principles of such drivers, who were unwilling to cross an organizational picket line (around plaintiff's premises) maintained by persons who are neither employees of plaintiff or of defendants nor members of any unions representing any of such employees but who are acting for two unions who have disclaimed representation of plaintiff's employees and refused to agree to an N.L.R.B.-conducted election of such employees, requested by plaintiff.
There is no need to set out the evidence in detail in view of the findings of fact, filed December 21, 1956, and supplemented earlier today on the basis of the testimony produced by the intervenors on January 2 and 3, 1957. None of the counsel for the original defendants, intervening defendants or amicus curiae have challenged the court's Conclusions of Law that common carriers such as these and their employees have an obligation to deliver goods shipped by them in interstate commerce,
which is enforcible by a mandatory injunction,
and that the Norris-LaGuardia Act, 29 U.S.C.A. § 101ff. does not prevent the issuance of this injunction. This memorandum opinion will be devoted to the question of whether this remedy becomes unavailable because (1) two labor unions, who do not represent or claim to represent any of the employees of either the carriers or the consignees, conduct a peaceful organizational picket line around the premises of plaintiff and (2) the employees of the carriers are unwilling to cross the picket line due to their personal principles.
The amicus curiae contends that this court had no jurisdiction to issue the injunctions in view of Garner v. Teamsters Union, 1953, 346 U.S. 485, 74 S. Ct. 161, 98 L. Ed. 228. The Garner decision seems inapplicable to the facts presented by this case for these reasons:
1. The conduct enjoined constitutes violation of expressed Congressional policy enacted in a statute and compliance with the injunction will not interfere with Congressional policy contained in the Labor Management Relations Act.
There is no indication that Congress, by the Labor Management Relations Act and its predecessors, 29 U.S.C.A. 141ff., intended to overrule, in a situation such as this, its previously expressed intent that persons engaged in the transportation business, which is affected with the public interest, make delivery to their consignees. See 49 U.S.C.A. 316(b) (cf. 49 U.S.C.A. 23).
Economic pressure by laborers, which violates another federal law, is not protected by Sections 7 and 8 of the Labor Management Relations Act, 29 U.S.C.A. §§ 157 and 158. See Southern S.S. Co. v. National Labor Relations Board, 1942, 316 U.S. 31, 62 S. Ct. 886, 86 L. Ed. 1246; N.L.R.B. v. Indiana Desk Co., 7 Cir., 1945, 149 F.2d 987; American Rubber Products Corp. v. N.L.R.B., 7 Cir., 1954, 214 F.2d 47; Cox, 'The Right to Engage in Concerted Activities,' 26 Ind.L.J. 319, 333ff. (1951). This is not a situation where the carrier's employees, or the consignee's employees, are on strike
'engaged in concerted activities' within the language of 29 U.S.C.A. § 157,
or involved in a 'labor dispute' under 29 U.S.C.A. § 101ff.
On the record now before this court, the organizational picketing being carried on by Locals 596 and 724 can be just as effectively carried on, as a means of persuasion, communication and free speech, without crossing plaintiff's driveway at the time these carriers enter and leave plaintiff's premises. The United States Supreme Court has repeatedly recognized that organizational picketing is subject to limits.
Furthermore, the primary effect of such picketing under the circumstances appearing in this record is to deny plaintiff's employees the right to refrain from collective bargaining granted by Congress in the Labor Management Relations Act, 29 U.S.C.A. § 157, and in the Norris-LaGuardia Act, 29 U.S.C.A. § 102.
The National Labor Relations Board has indicated by a number of decisions that Congress has not given it any jurisdiction to act under 29 U.S.C.A. § 158(b) in the situation presented by this record,
even though there is involved a violation of the Congressional intent stated in 29 U.S.C.A. § 157 that 'employees * * * shall also have the right to refrain from any and all such activities (to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection) * * *.'
The United States Court of Appeals for the Third Circuit has reserved judgment on the extent of proper Board action under 29 U.S.C.A. § 158(b)(1)(A), saying, in N.L.R.B. v. Jarka Corp. of Philadelphia, 3 Cir., 1952, 198 F.2d 618,
at pages 621-622:
'It seems better that judgment of the reach of Section 8(b)(1)(A) should be reserved for a case where power to restrain the conduct complained of depends upon such broad interpretation of that Section as is now urged.'
3. Under the circumstances outlined in paragraphs 1 and 2 above, the federal appellate courts have stated that proceedings before the National Labor Relations Board are not the exclusive remedy where irreparable injury will result from the failure to grant judicial relief.
The United States Supreme Court, in United Construction Workers v. Laburnum Const. Corp., 1954, 347 U.S. 656, 74 S. Ct. 833, 98 L. Ed. 1025, has rejected the contention that the Labor Management Relations Act 'has occupied the labor relations field so completely that no regulatory agency other than the National Labor Relations Board and no court may assert jurisdiction over unfair labor practices defined by it, unless expressly authorized by Congress to do so.' 347 U.S. at page 663, 74 S. Ct. at page 837.
In that case, the court went on to say in 347 U.S. at page 665, 74 S. Ct. at page 838:
'To the extent, however, that Congress has not prescribed procedure for dealing with the consequences of tortious conduct already committed, there is no ground for concluding that existing criminal penalties or liabilities for tortious conduct have been eliminated.'
At pages 666-667 of 347 U.S., at page 839 of 74 S. Ct. the court emphasized that the creation of a 'new preventive procedure against unfair labor practices' did not negative other means of preventing such conduct (even assuming that the conduct involved here falls within the terms of 29 U.S.C.A. § 158) by referring to this language of 29 U.S.C.A. § 160(a):
"Sec. 10. (a) The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise: * * *.' 61 Stat. 146, 29 U.S.C. (1952 ed.) § 160(a), 29 U.S.C.A. § 160(a). 9'
'9. '* * * By retaining the language which provides the Board's powers under section 10 shall not be affected by other means of adjustment, the conference agreement makes clear that, when two remedies exist, one before the Board and one before the courts, the remedy before the Board shall be in addition to, and not in lieu of, other ...