2. The Labor Management Relations Act provides no adequate remedy under the facts of this case.
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 remedies.' Conference Report on H.R. 3020, H.R.Rep. No. 510, 80th Cong., 1st Sess. 52.'
Finally, the opinion indicated in 347 U.S. at page 669, 74 S. Ct. at page 840, that existing judicial remedies should not be superseded 'where the federal preventive administrative procedures are impotent or inadequate.'
Similarly, in Steele v. Louisville & N.R.R. Co., 1944, 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173, the United States Supreme Court has held that in the event of the unavailability of an adequate administrative remedy for the settlement of a labor difficulty, a federal right, such as that contained in 29 U.S.C.A. § 157 (cf. 29 U.S.C.A. § 102), should be enforced by 'resort to the usual judicial remedies of injunction and award of damages when appropriate for breach of that duty.' 323 U.S. at page 207, 65 S. Ct. at page 234. In that case, the court said in 323 U.S. at pages 205-206 and 207, 65 S. Ct. at page 233:
'Whether or not judicial power might be exerted to require the Adjustment Board to consider individual grievances, as to which we express no opinion, we cannot say that there is an administrative remedy available to petitioner or that resort to such proceedings in order to secure a possible administrative remedy, which is withheld or denied, is prerequisite to relief in equity.
'In the absence of any available administrative remedy, the right here asserted, to a remedy for breach of the statutory duty of the bargaining representative to represent and act for the members of a craft, is of judicial cognizance. That right would be sacrificed or obliterated if it were without the remedy which courts can give for breach of such a duty or obligation and which it is their duty to give in cases in which they have jurisdiction.'
Also, in Amazon Cotton Mill Co. v. Textile Workers Union, 4 Cir., 1948, 167 F.2d 183, relied on by the amicus curiae, the court recognized that federal courts might act in some situations involving labor difficulties,
even though rights created by the Labor Management Relations Act are involved.
The strength of the federal policy requiring persons working for businesses affected with a public interest to make deliveries as required by Congressional statute (49 U.S.C.A. § 316(b)) has been consistently recognized by the United States Supreme Court. See Wilson v. New, 1917, 243 U.S. 332, 349 and 353, 37 S. Ct. 298, 61 L. Ed. 755.
Counsel for the intervening defendants contends
that the wording of the injunction requires involuntary servitude by the intervening defendants (as 'employees' of the defendants), contrary to the Thirteenth Amendment. However, a long series of cases have held that creating the ordinary legal motives for right conduct on the part of a class such as the employees of these defendants, as opposed to an individual, does not involve 'involuntary servitude' as those words are used in that Amendment. See International Union, Auto Workers etc. v. Wisconsin Employment Relations Board, 1949, 336 U.S. 245, 251, 69 S. Ct. 516, 93 L. Ed. 651;
Le Baron v. Printing Specialties, S.D.Cal. 1948, 75 F.Supp. 678, 681-682, affirmed 9 Cir., 1949, 171 F.2d 331, certiorari dismissed 1949, 336 U.S. 949, 69 S. Ct. 884, 93 L. Ed. 1105; France Packing Co. v. Dailey, 3 Cir., 1948, 166 F.2d 751, 753-754;
State v. Traffic Telephone Workers' Federation, 1949, 2 N.J. 335, 66 A.2d 616, 624, 9 A.L.R.2d 854; Burgess Bros. Co. v. Stewart, 1921, 114 Misc. 673, 187 N.Y.S. 873, 876; cf. Robertson v. Baldwin, 1897, 165 U.S. 275, 17 S. Ct. 326, 41 L. Ed. 715; Marcus Brown Holding Co. v. Feldman, 1921, 256 U.S. 170, 199, 41 S. Ct. 465, 65 L. Ed. 877; Woods v. Fliss, 7 Cir., 1948, 168 F.2d 612, 614; Taylor v. Bowles, 9 Cir., 1945, 147 F.2d 824, 835; and cases cited in those cases. Furthermore, this injunction does not require any labor or service by an 'individual employee' under the terms of 29 U.S.C.A. § 143, but is directed to the common carrier defendants and such persons as choose to work as employees in such businesses, affected with a public interest. The fact that Congress included the word 'individual' before the word 'employee' in this statute seems significant.
For the reasons stated above, the motions to dissolve the temporary injunctions will be dismissed.
And now, January 21, 1957, it is ordered that the motions to dissolve the temporary injunctions entered in the above cases are dismissed.