Alton & Southern Railway Co. v. Brotherhood of Railroad Signalmen

Filing 9

ORDER denying [Filing No. 2] Motion for Temporary Restraining Order. Ordered by Judge Robert F. Rossiter, Jr. (JJM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ALTON & SOUTHERN RAILWAY CO.,
Plaintiff,

8:16CV360

vs.
ORDER
BROTHERHOOD OF RAILROAD
SIGNALMEN,
Defendant.
On July 22, 2016, counsel for the parties appeared before this Court for a hearing
on Plaintiff Alton & Southern Railway Co.’s (A&S) Motion for a Temporary Restraining
Order (Filing No. 2) against Defendant Brotherhood of Railroad Signalmen “its
divisions, lodges, locals, officers, agents, employees, members and all persons acting in
concert or participation with any of them” (collectively, BRS) from authorizing or
participating in a strike and requiring BRS to make reasonable efforts to prevent such
activity until this Court can conduct a hearing and enter an order regard a motion for
preliminary injunction filed by A&S.

A&S asserts Federal Rule of Procedure 65(b) governs its motion and that the
Court must apply the factors enumerated in Dataphase Systems, Inc. v. C L Systems, Inc.,
640 F.2d 109, 113 (8th Cir. 1981) (en banc). Under Dataphase, “[w]hether a preliminary
injunction should issue involves consideration of (1) the threat of irreparable harm to the
movant; (2) the state of the balance between this harm and the injury that granting the
injunction will inflict on other parties litigant; (3) the probability that movant will
succeed on the merits; and (4) the public interest.” In its brief, A&S acknowledged,
“When a party seeks to enjoin a labor strike, Section 7 of the Norris-LaGuardia Act

(“NLGA”), 29 U.S.C. § 107 may also come into play.” 1 (Emphasis added). At oral
argument, A&S argued the Court should focus on the Dataphase factors.

BRS takes a different view. Noting Rule 65 does not modify “any federal statute
relating to temporary restraining orders or preliminary injunctions in actions affecting
employer and employee,” Fed. R. Civ. P. 65(e)(1), BRS maintains § 107 not only applies,
but applies exclusively. In BRS’s view, A&S must meet the more-demanding standard
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Section 107 provides in relevant part
No court of the United States shall have jurisdiction to issue a temporary or
permanent injunction in any case involving or growing out of a labor
dispute, as defined in this chapter, except after hearing the testimony of
witnesses in open court (with opportunity for cross-examination) in support
of the allegations of a complaint made under oath, and testimony in
opposition thereto, if offered, and except after findings of fact by the court,
to the effect—
(a) That unlawful acts have been threatened and will be committed
unless restrained or have been committed and will be continued unless
restrained, but no injunction or temporary restraining order shall be
issued on account of any threat or unlawful act excepting against the
person or persons, association, or organization making the threat or
committing the unlawful act or actually authorizing or ratifying the same
after actual knowledge thereof;
(b) That substantial and irreparable injury to complainant’s property will
follow;
(c) That as to each item of relief granted greater injury will be inflicted
upon complainant by the denial of relief than will be inflicted upon
defendants by the granting of relief;
(d) That complainant has no adequate remedy at law; and
(e) That the public officers charged with the duty to protect
complainant’s property are unable or unwilling to furnish adequate
protection.

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of § 107 and has failed to show BRS has threatened and will commit unlawful acts that
would cause A&S to suffer substantial and irreparable injury.

The Court need not resolve the parties’ dispute as to the proper standard because
A&S fails to satisfy either standard at this time. See Baker Electric Co-op., Inc. v.
Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994) (explaining the burden of establishing the
need for a temporary restraining order is on the movant). Under § 107, A&S has not, at
this time, provided evidence that “unlawful acts have been threatened and will be
committed unless restrained.” Even under Dataphase, A&S must show a “threat of
irreparable harm.” Dataphase, 640 F.2d at 109. No such “threat” has been proven. In
the Court’s view, BRS’s mere refusal to agree with A&S that the parties’ dispute was
minor does not rise to the level of a threat of unlawful acts.

Based on the record of this court, the exhibits received in evidence, the written
submissions, and the arguments and representations of counsel, A&S has not shown the
need for a temporary restraining order.

Accordingly, the Motion for Temporary

Restraining Order (Filing No. 2) is DENIED.

IT IS SO ORDERED.

Dated this 22nd day of July, 2016
BY THE COURT:
s/ Robert F. Rossiter, Jr.
United States District Judge

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