Opinion
No. 86-3555.
Argued June 2, 1986.
Decided July 11, 1986.
John O'Brien Clarke, Jr., Roanoke, Va. (Thomas P. Murphy, Highsaw Mahoney, P.C., Washington, D.C., Gary E. Tegenkamp, Fox, Wooten Hart, Louis P. Malone, III, Roanoke, Va., General Counsel, Broth. of Maintenance of Way Employees, on brief), for appellants.
William B. Poff (W. Fain Rutherford, D. Stan Barnhill, Frank K. Friedman, Woods, Rogers Hazlegrove, Richard A. Keeney, General Counsel, Law Dept., Norfolk Southern Corp., Roanoke, Va., on brief), for appellees.
Appeal from the United States District Court for the Western District of Virginia.
Before WIDENER, HALL, and PHILLIPS, Circuit Judges.
The Brotherhood of Maintenance of Way Employees, as well as certain of its officers and members (the "BMWE" or the "union"), appeal from an order of the district court preliminarily enjoining the union from picketing facilities of the Norfolk Western Railway Company. We reverse.
In April, 1980, the Norfolk and Western Railway Company and other affiliated railroads ("N W") filed suit against the BMWE under the Interstate Commerce Act and the Railway Labor Act, seeking to enjoin the union's picketing of the railroad's facilities near Bellevue, Ohio. The picketing occurred during the pendency of a labor dispute which the union had with the Maine Central Railroad Company ("MEC") and its subsidiary, the Portland Terminal Company ("PT"), as well as with other rail carriers in the Guilford Rail System.
This suit was brought in the Western District of Virginia, the judicial district in which N W maintains its corporate headquarters.
The district court granted N W's motion for a preliminary injunction, concluding that there was no substantial alignment between N W and the MEC/PT or the Guilford Rail System and no labor dispute within the meaning of the Norris-LaGuardia Act, 29 U.S.C. §§ 104 and 113, which would justify the union's secondary picketing of N W's facilities. This appeal followed.
In conjunction with its appeal, the union moved this Court for summary reversal or, in the alternative, for a stay of the district court's order. Following briefing and oral argument, we granted the request for a stay pending full consideration of the appeal.
On appeal, the BMWE contends that the district court lacked jurisdiction to enjoin its picketing of N W's facilities under the Norris-LaGuardia Act. In a related case decided today, Richmond, Fredericksburg, and Potomac Railroad Co. v. Brotherhood of Maintenance of Way Employees, 795 F.2d 1161 (4th Cir. 1986), we fully considered the questions presented in this appeal and resolved them in favor of the union. Accordingly, for the reasons stated in Parts II and III of that opinion, we reject the position advocated by N W, reverse the district court's order, and remand the case with instructions to dismiss the complaint for lack of jurisdiction.
The Richmond, Fredericksburg case involved the BMWE's secondary picketing of another railroad in the context of the union's same dispute with the MEC/PT.
N W relies on the same arguments in the instant appeal as did the railroad in Richmond, Fredericksburg. In addition, N W asserts that under the Railway Labor Act ("RLA") the BMWE has a duty to bargain with the railroad over whether the union may engage in secondary picketing. We reject that contention as meritless. The RLA does not ban the union's resort to peaceful secondary picketing and we are unwilling "to ignore the clear strictures of the Norris-LaGuardia Act in favor of a vague duty to negotiate not clearly expressed in the RLA." Consolidated Rail Corporation v. Brotherhood of Maintenance of Way Employees, 792 F.2d 303, 305 (2d Cir. 1986). Accord, Central Vermont Railway, Inc. v. BMWE, No. 86-5245, slip op. at 7-11 (D.C. Cir. June 27, 1986).
REVERSED AND REMANDED WITH INSTRUCTIONS.
I respectfully dissent for the reasons stated in my dissent filed today in the related case, Richmond, Fredericksburg, and Potomac Railroad Co. v. Brotherhood of Maintenance of Way Employees, 795 F.2d 1161 (4th Cir. 1986).
I would affirm the district court's grant of a preliminary injunction following its conclusion that there was no substantial alignment between N W and the Maine Central.