Appeal from the United States District Court for the Western District of Pennsylvania, (D.C. Civil No. 73-650).
Rosenn and Hunter, Circuit Judges, and Hannum, District Judge.
This is an appeal from a preliminary injunction enjoining appellants and all those acting in concert with appellants from picketing appellee's place of business.
Since this appeal involves only a review of a preliminary injunction, the narrow question before us is whether the grant of the injunction by the district court was an abuse of discretion. United States Steel Corp. v. Fraternal Ass'n of Steelhaulers, 431 F.2d 1046, 1048 (3d Cir. 1970).
Appellants are owner-operators of trucks which they lease to Conley Motor Express, appellee. Conley is a trucking concern engaged in the transportation of goods, mainly steel, in interstate commerce. The steel companies pay Conley a certain rate for hauling the steel. Conley in turn pays a certain percentage of this to appellants for the use of their trucks and their services as operators.
For several years the Fraternal Associaton of Special Haulers ("FASH") has been seeking recognition as collective bargaining agent for appellants. In 1970 this Court upheld a preliminary injunction enjoining picketing by FASH and owner-operator members of FASH. We held that FASH had failed to meet its burden of showing that it was a labor organization immunized from the anti-trust laws. United States Steel Corp. v. Fraternal Ass'n of Steelhaulers, 431 F.2d 1046 (3d Cir. 1970).
On two occasions, once in 1971 and once in 1973 (during the pendency of the district court proceedings*fn1), the National Labor Relations Board ("NLRB") has rejected petitions by FASH for "certification of representative" under section 9(c) of the National Labor Relations Act, 29 U.S.C. § 159. On both occasions the NLRB held that appellants were independent contractors and not employees.
Thwarted by the decision of this Court in 1970 and by the decisions of the NLRB, appellants, with the assistance and aid of FASH, began picketing Conley's place of business on July 23, 1973 for the purpose of obtaining recognition of FASH as appellants' collective bargaining agent and of obtaining a more favorable financial arrangement between Conley and appellants.*fn2 Although the officers of FASH who had been organizing the picketing were included within the scope of the injunction, neither FASH nor its officers have chosen to appeal the district court's order.
Initially, we note that appellants do not question that Conley would have sustained irreparable injury in the absence of preliminary relief. Moreover, appellants do not dispute that their picketing is properly enjoinable as an illegal combination in restraint of trade, if such activity does not fall within the labor exemption to the anti-trust laws. Thus, if the district court was justified in believing that Conley had shown a reasonable probability of success at final hearing, the preliminary injunction must be affirmed. Only a clear abuse of discretion will justify appellate reversal. United States Steel, supra.
Appellants essentially argue that unlike the situation confronting this Court in 1970, FASH is now a "labor organization" under the National Labor Relations Act, and appellants, notwithstanding their independent contractor status, are seeking traditional labor objectives. Thus, they argue they should be exempt from the anti-trust laws. We disagree.
Even assuming arguendo that FASH is a "labor organization" and appellants are seeking traditional labor objectives, appellants have nonetheless not shown the primary prerequisite for exemption from the anti-trust laws, i.e., that their dispute with Conley involves an employer-employee relationship.
It is well settled that the provisions of the Sherman, Clayton and Norris-LaGuardia Acts must be considered together in determining the scope of the exemption of labor activities from the anti-trust provisions. E.g., United States v. Hutcheson, 312 U.S. 219, 85 L. Ed. 788, 61 S. Ct. 463 (1941); Allen ...