East St. Louis 100 v. Bellon Wrecking

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-1236

EAST ST. LOUIS LABORERS’ LOCAL 100,

Plaintiff-Appellee,

v.

BELLON WRECKING & SALVAGE COMPANY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 05 C 23—G. Patrick Murphy, Chief Judge.

____________

ARGUED APRIL 15, 2005—DECIDED JULY 6, 2005

____________

Before FLAUM, Chief Judge, and BAUER and EVANS,

Circuit Judges.

FLAUM, Chief Judge. A collective bargaining agreement

(“CBA”) obligates defendant Bellon Wrecking & Salvage

Company to hire members of plaintiff East St. Louis Labor-

ers’ Local 100 to do certain highway construction work.

Bellon and the union amended the agreement orally to

permit the employer some latitude to use labor from outside

Local 100 on a project in southwestern Illinois. The parties

disagree about the extent of the oral amendments. When

work slowed, Bellon laid off a member of Local 100 instead

2 No. 05-1236

of a laborer from a neighboring union. Local 100 believed

this violated the agreement as amended, sued for breach of

the CBA, and sought a preliminary injunction. The district

court granted the injunction, and Bellon appeals. Because

the union has not shown that it will suffer irreparable harm

absent the injunction, we reverse.

I. Background

In June 2004, Bellon was hired to remove the road deck

from the MacArthur bridge, which spans the Mississippi

River from St. Louis, Missouri to East St. Louis, Illinois.

The project aimed at ensuring the bridge’s structural integ-

rity by removing excess weight from the bridge. The work

began on the Missouri side of the river and moved east. At

the time, Bellon employed laborers from a Missouri union,

but had not signed a CBA with Local 100, whose jurisdic-

tion covers the Illinois side of the river. When Local 100

learned of the work on the bridge, it requested that Bellon

hire its members. Bellon refused, and the union picketed in

protest. The picket ended after a week, and Bellon con-

tinued to use laborers from the Missouri union.

For reasons that are not clear from the record, in October

2004, Bellon signed on to a CBA already in effect among

Local 100, the Southern Illinois Builders Association, the

Southern Illinois Contractors Association, and other local

employers. The agreement extends through July 31, 2006,

and obligates signatories to use Local 100 as the exclusive

source of referrals for highway construction laborers in East

St. Louis and specified neighboring areas. The agreement

provides that the union will maintain a list of eligible

laborers; participating employers bind themselves to hire

from the list.

The CBA sets forth a detailed schedule of wage rates for

each laborer hired by an employer. The wage rates vary

according to the type of job, the skills possessed by the

No. 05-1236 3

laborer, and the number of hours worked within a day or

week. The agreement also obligates employers to contribute

to a health and welfare fund on behalf of each laborer they

hire.

Bellon and Local 100 acknowledge that they amended the

agreement orally, although they disagree about the nature

and extent of the changes.1 Bellon contends that the union

authorized it to employ John Fletcher, a laborer from a

Missouri union, as its “lead person” on the MacArthur

bridge. Fletcher had been working on the project from the

outset, and Bellon valued his experience and loyalty. Ac-

cording to Bellon’s depiction of the amendments, it would

hire the second and third laborers from Local 100 as work

on the bridge increased. Bellon would draw the fourth

laborer from outside the union, and thereafter it would

alternate between hiring one member from Local 100 and

one laborer from outside that union. Bellon asserts that the

parties designed this arrangement to maintain a 50-50

staffing ratio between members of Local 100 and other

laborers.

Local 100 contends that it agreed to allow Bellon to use

Fletcher’s services, but only after the employer had hired

two of the union’s members. The order of hiring takes on

importance because both parties agree that, in the event of

a layoff, the last-hired worker would lose his job first.

Moreover, the union asserts that the parties never contem-

plated a 50-50 staffing ratio, and that all other laborers

would be hired from Local 100.

During October and the beginning of November 2004, the

work on the bridge called for three laborers. Bellon hired

1

We do not comment on whether the oral amendments were

effective. For the purposes of this appeal, moreover, we assume

without deciding that the union’s account of the oral amendments

is accurate, and that Bellon breached the agreement as amended.

4 No. 05-1236

Fletcher and two members of Local 100: Sean Abernathy

and Leroy Bailey. Heavy rains on November 11, 2004

destabilized the footing of a crane that the three men had

been using to demolish the road bed. Without the crane,

Bellon could utilize only two laborers. It told Abernathy not

to report to work the next day. Nevertheless, Abernathy

showed up on November 12 and argued that Fletcher, not

he, should be laid off. Bellon disagreed, asserting that

Abernathy held the least tenure of the three workers, and

therefore should be laid off first. Both Abernathy and Bailey

left the job site in protest, returning some time later to

picket. Bellon hired replacement workers from outside Local

100 to work on the bridge. As of oral argument before this

Court, the work on the bridge continued.

On January 13, 2005, the union filed suit for breach of the

CBA in the Circuit Court of St. Clair County, Illinois. The

state court issued a temporary restraining order directing

that Bellon adhere to the CBA.

Bellon removed the case to federal court under § 301 of

the Labor Management Relations Act (“LMRA”), 29 U.S.C.

§ 185, and § 502 of the Employee Retirement Income

Security Act (“ERISA”), 29 U.S.C. § 1132. On January 25,

2005, the district court held a hearing on Bellon’s motion to

dissolve the temporary restraining order and the union’s

motion to convert the restraining order into a preliminary

injunction. After taking testimony from both parties, the

district court found the union’s witnesses credible, rejected

Bellon’s version of events, and held that Local 100 had

established a likelihood of success on the merits. It held,

moreover, that the union would suffer irreparable harm

absent an injunction, that Bellon would not be harmed by

an injunction, and therefore that the balance of harms

tipped in the union’s favor. Accordingly, it issued a prelimi-

nary injunction mandating that Bellon comply with the

union’s account of the amended CBA pending a trial on the

merits. Bellon appeals the order issuing the preliminary

injunction.

No. 05-1236 5

II. Discussion

The Norris-LaGuardia Act cabins a district court’s power

to issue injunctive relief in cases “involving or growing out

of a labor dispute.” 29 U.S.C. § 101. As explained below, a

court enjoys far less leeway to issue a preliminary injunc-

tion in a case governed by the Act than it does under

traditional equitable principles. Bellon argues that the

Norris-LaGuardia Act controls this case, and that judging

by the Act’s strict standards, the district court abused its

discretion by issuing the injunction. The union contends

that the Act does not apply here for two reasons: first, it

argues that the statute does not protect employers; second,

it contends that the facts of this case fall within an excep-

tion to the Act recognized by Boys Markets, Inc. v. Retail

Clerks Union, Local 770, 398 U.S. 235 (1970), and its

progeny. The union urges us instead to apply traditional

equitable principles, under which, it contends, the injunc-

tion should stand. We need not decide which framework

governs this case, however. Both tests require the movant to

show, at a minimum, that it will suffer irreparable harm

absent the injunction. Because the union has not made this

threshold showing, it is not entitled to a preliminary

injunction under either analysis.

A. Traditional Equitable Principles

Our traditional approach to preliminary injunctions re-

quires that the party seeking the injunction demonstrate,

among other things, “that it has ‘no adequate remedy at

law’ and will suffer ‘irreparable harm’ if preliminary relief

is denied.” Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6,

11 (7th Cir. 1992). If the moving party cannot make this

showing, “a court’s inquiry is over and the injunction must

be denied.” Id. We review the district court’s decision to is-

sue a preliminary injunction for abuse of discretion. Id. at

6 No. 05-1236

12. A court abuses its discretion when it commits an error

of law or makes a factual finding that is clearly erroneous.

Id. at 13.

The union offers several arguments as to why it will

suffer irreparable harm in the absence of a preliminary

injunction. First, it contends that Bellon has violated the

CBA repeatedly, and would continue to do so but for the

injunction. Even if this is true, it establishes only that

Bellon’s actions may harm the union; it does not prove that

the harm will be irreparable. An injury is irreparable for

purposes of granting preliminary injunctive relief only if it

cannot be remedied through a monetary award after trial.

See Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th

Cir. 1997). Thus, even repeated and ongoing violations of a

CBA do not warrant a preliminary injunction if each

violation may be remedied by a monetary award.

Relying on Duct-O-Wire Co. v. U.S. Crane, Inc., 31 F.3d

506 (7th Cir. 1994), the union asserts that an ongoing

violation amounts to irreparable harm. Plaintiff overreads

Duct-O-Wire. In that case, the defendant subscribed to a

telephone number that it knew the plaintiff previously had

used for its business. When customers called the number

looking to buy the plaintiff’s products, the defendant led

them to believe that it was the plaintiff’s agent. This

enabled the defendant to capture the plaintiff’s sales and

deprived the plaintiff of “the opportunity to maintain and

develop relationships with existing and potential custom-

ers.” Id. at 509-10. Because the value of the diverted sales

and lost opportunities would have been impossible to track,

the plaintiff would have suffered irreparable harm without

an injunction. The injunction was warranted not because

the harm was ongoing, but because it was irreparable.

Here, Local 100 does not explain why ongoing violations of

the CBA could not be atoned for with money.

Second, plaintiff argues that its members will lose con-

fidence in the union if, pending trial, Bellon is permitted to

No. 05-1236 7

flout the parties’ agreement with apparent impunity.

Plaintiff contends that this loss of confidence cannot be

measured in or remedied with dollars, and can be prevented

only through an immediate injunction.

Not every conceivable injury entitles a litigant to a pre-

liminary injunction. For example, speculative injuries do

not justify this extraordinary remedy. See, e.g., Tom Doherty

Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 37 (2d Cir.

1995); Pub. Serv. Co. of N.H. v. Town of W. Newbury, 835

F.2d 380, 383 (1st Cir. 1987); Goldie’s Bookstore, Inc. v.

Superior Court, 739 F.2d 466, 472 (9th Cir. 1984). Cf. Am.

Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 595

(7th Cir. 1986). The union’s concern about lost confidence

falls into that category. Given the frequency of litigation

between unions and employers, Local 100’s members likely

understand that lawsuits take time to resolve disputes, and

that the absence of an immediate victory does not imply

defeat. The union is free to explain the difficulties of

litigation to its members if they ask why more is not being

done sooner. And if some members’ confidence is shaken,

the chance that vindication of the union at trial would not

restore that confidence is too speculative to justify a pre-

liminary injunction.

Furthermore, accepting the plaintiff’s argument would

open the door to preliminary injunctive relief in a substan-

tial majority of cases. Nearly every litigant will prefer an

immediate injunction to a monetary award sometime in the

future. Many will be able to construct an argument that a

non-party with an interest in its success will lose confidence

in its ability to control the dispute absent an immediate,

drastic remedy. But the unease that often accompanies

litigation is one of the ordinary burdens of our legal system

that, like litigation expense, Renegotiation Bd. v.

Bannercroft Clothing Co., Inc., 415 U.S. 1, 24 (1974), does

not qualify as the type of injury warranting a preliminary

injunction.

8 No. 05-1236

Third, the union fears that Bellon may complete its work

on the MacArthur bridge before the district court can hold

a trial. If so, plaintiff’s members will never again work on

the bridge without the benefit of an injunction. The union

characterizes this as a permanent job loss which, it asserts,

amounts to irreparable harm.

A permanent loss of employment, standing alone, does not

equate to irreparable harm. See, e.g., Shegog v. Bd. of Educ.

of City of Chi., 194 F.3d 836, 839 (7th Cir. 1999) (affirming

denial of preliminary injunction where laid off teachers

failed to show irreparable harm); Hetreed v. Allstate Ins.

Co., 135 F.3d 1155, 1158 (7th Cir. 1998) (fired employee not

entitled to preliminary injunction because she failed to

show irreparable injury, among other things); E.E.O.C. v.

City of Janesville, 630 F.2d 1254, 1259 (7th Cir. 1980)

(district court abused its discretion by reinstating fired

police chief pending trial on the merits given the lack of

irreparable harm). Rather, as in other cases involving

preliminary injunctive relief, we ask whether the termina-

tion will harm the plaintiff in a way that cannot be reme-

died through money. See id. (“Reinstatement pending a trial

on the merits . . . is an extraordinary remedy permissible

only upon a substantial showing of irreparable injury.”).

Our opinion in Local Lodge No. 1266, International

Association of Machinists & Aerospace Workers, AFL-CIO v.

Panoramic Corp., 668 F.2d 276 (7th Cir. 1981), upon which

plaintiff relies, is not to the contrary. Although we stated in

Panoramic that damages would not adequately remedy a

permanent loss of jobs, id. at 286, that language must be

read in context. Panoramic was threatening to sell a

manufacturing division that employed 113 workers to a

group of investors who intended to fire all of the workers

once the sale closed. We affirmed the district court’s grant

of a preliminary injunction preventing the sale until an ar-

bitrator could determine whether the transaction violated

a CBA between the workers’ union and Panoramic. Our

No. 05-1236 9

conclusion that the union would suffer irreparable harm

was driven in large part by the practical impossibility of

fashioning a damage remedy under these circumstances.

The arbitrator would have been required to calculate the

damages suffered by each of 113 workers involved in a

complex, interrelated organization. But for the sale, the

division would have continued in operation as a going con-

cern, employing these workers for an unknowable length of

time. This case does not present similar problems. The work

on the MacArthur bridge is a discrete project that has

created two jobs for the union’s laborers. Although we do

not know precisely how long it will take, the length of the

project will be readily apparent after the fact. That the

laborers may lose their jobs on the bridge permanently does

not imply that the harm could not be remedied by a mone-

tary award.

Fourth, the union contends that Bellon may breach the

CBA in a way that will trigger some lost wages that cannot

be calculated. Plaintiff concedes that any wages lost be-

cause of Bellon’s refusal to employ its members on the

MacArthur bridge may be calculated with ease. The CBA

sets forth a detailed schedule of hourly wages broken down

by job type. The union could learn through discovery the

number of laborers, type of work, and person-hours de-

manded by the bridge project, and apply the relevant wage

rate to determine lost wages. The union asserts, however,

that it cannot calculate the wages that may be lost if Bellon

takes on additional construction projects within the CBA’s

territorial jurisdiction but refuses to hire Local 100’s

laborers. Because we cannot anticipate the type of work or

number of person-hours those projects will require, plaintiff

alleges that it is impossible to calculate the related dam-

ages.

We disagree. A plaintiff may suffer irreparable harm if

the nature of the loss makes monetary damages difficult to

calculate. Somerset House, Inc. v. Turnock, 900 F.2d 1012,

10 No. 05-1236

1018 (7th Cir. 1990). The harm plaintiff points to, however,

eludes calculation because it is speculative, not because, if

it occurred, it could not be quantified. As stated above, a

plaintiff cannot obtain a preliminary injunction by speculat-

ing about hypothetical future injuries. Tom Doherty Assocs.,

60 F.3d at 37. Thus, the union’s argument that we cannot

know whether or how Bellon might breach the agreement

in the future merely reveals that an injunction is not

warranted. If the union’s predictions come true, a jury could

apply the same straightforward method of calculating lost

wages from the future projects as it would with the work on

the MacArthur bridge.2

Fifth, the union asserts that injunctive relief is necessary

because it will avoid logistical problems that would hamper

a suit for money damages. It points out that the CBA

establishes a referral system, rather than identifying

specific members of the union to work on particular pro-

jects. The union maintains a list of eligible employees from

which it makes its referrals, and signatories agree to hire

members from the top of the list. When the work on the

MacArthur bridge began, Bellon hired Sean Abernathy and

Leroy Bailey because they happened to be on the top of this

list. If Bellon is permitted to lay off Abernathy and Bailey,

the two will be forced to look for other work. If they find

jobs (thereby mitigating their damages for lost wages),

plaintiff submits it will be impossible to determine which

2

The union cites Sheet Metal Workers’ International Association

Local 19 v. Herre Bros., Inc., 201 F.3d 231, 250 (3d Cir. 1999), to

support its argument that a preliminary injunction should issue

when the plaintiff cannot predict how the defendant will breach

a contract in the future. Herre Bros. addressed whether a district

court had abused its discretion by ordering specific performance

after a judgment had been entered on the merits. It did not dis-

cuss whether a preliminary injunction would have been appropri-

ate, and therefore it is irrelevant to this appeal.

No. 05-1236 11

union member was harmed by Bellon’s breach of the CBA.

According to the union, the answers could include the next-

listed unemployed member on the day the work began, any

member who sat idle over the course of the project, or a

combination of unemployed members. Plaintiff contends

that a preliminary injunction would avoid this conundrum.

This argument proceeds from the flawed assumption that

one measures the adequacy of a legal remedy by a court’s

ability to impose it prior to any discovery. The test of a

monetary award, however, is whether it fairly compensates

a plaintiff after trial, Graham, 130 F.3d at 296; Anderson v.

U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 478 (7th Cir.

2001), and therefore after discovery has been completed.

Before discovery has begun, uncertainty will often exist

about an issue of fact—like causation—bearing on damages.

A rule that permitted injunctive relief solely because of this

uncertainty would give litigants a perverse incentive to

avoid doing their homework.

An injunction might be warranted if the nature of the

case caused us to doubt the litigants’ ability, though pur-

suing discovery diligently and in good faith, to prove some

fact even if it were true. The union has not shown, however,

that the facts of this case are unproveable. Ordinary dis-

covery will reveal the number of laborers called for by the

MacArthur bridge project, their qualifications, and the days

and hours they worked. This data may be compared to the

union’s referral lists to determine which of plaintiff’s

members, if any, were qualified and available to work on

the bridge and failed to find other employment. Depending

upon the details of the union’s referral practice, and ap-

plying ordinary principles of causation, it is likely that the

parties will be able to identify which member or members

were harmed by Bellon’s breach of the CBA. We sketch this

approach neither to identify which member was harmed nor

to mandate a comprehensive plan for discovery. Rather, we

12 No. 05-1236

present the outline to demonstrate the parties’ ability to

resolve the issue by applying ordinary legal principles and

discovery tools.

Sixth, the union contends that Bellon’s breach of the CBA

may cause plaintiff’s members to lose fringe benefits. The

CBA requires that employers contribute a fixed amount per

hour worked by a member into a health and welfare fund on

that member’s behalf. When they are not working, members

do not earn contributions towards these funds, and their

health care coverage may lapse. The union asserts that a

member could lose coverage because of Bellon’s actions, fall

ill, and be forced to pay his or her health care costs out of

pocket.

The union has not shown that this is likely. It has not

informed us of the minimum number of hours a member

must work to be eligible for coverage, nor has it explained

why the handful of laborers who might have worked on the

MacArthur bridge will be unable to reach that threshold by

working for other signatories to the CBA. Assuming that it

might occur, a loss of fringe benefits does not amount to

irreparable harm if the district court holds the power, fol-

lowing a judgment on the merits, to order the losing party

to pay missed contributions. See Adams v. City of Chicago,

135 F.3d 1150, 1154-55 (7th Cir. 1998). Section 301 of the

LMRA grants district courts that authority. See 29 U.S.C.

§ 185; Galindo v. Stoody Co., 793 F.2d 1502, 1516 (9th Cir.

1986). Cf. Contempo Design, Inc. v. Chi. & N.E. Ill. Dist.

Council of Carpenters, 226 F.3d 535, 553-55 (7th Cir. 2000).

Moreover, plaintiff has not explained why its members

could not purchase individual health insurance to hedge

against a catastrophic loss. Although the premiums for

individual insurance are likely higher than contributions to

the health and welfare fund, a monetary award could

include the difference as incidental damages.

No. 05-1236 13

In sum, the union has failed, as a matter of law, to dem-

onstrate that it will suffer irreparable harm in the absence

of a preliminary injunction.

B. Norris-LaGuardia Act

If the Norris-LaGuardia Act applies to this case, the

union fares no better. The Act states that “[n]o court of the

United States . . . shall have jurisdiction to issue any

restraining order or temporary or permanent injunction in

a case involving or growing out of a labor dispute, except in

strict conformity with the provisions of [the Act].” 29 U.S.C.

§ 101. Subject to a categorical ban on injunctions not at

issue here,3 § 7 of the Act permits a court to issue an

injunction only if it finds:

(a) That unlawful acts have been threatened and will be

committed unless restrained or have been committed

and will be continued unless restrained . . . ;

(b) That substantial and irreparable injury to complain-

ant’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.

29 U.S.C. § 107. As under our traditional analysis, we

review preliminary injunctions in cases governed by the Act

3

See 29 U.S.C. § 104.

14 No. 05-1236

for abuse of discretion, deferring to a district court’s factual

findings unless clearly erroneous, but reviewing its legal

conclusions de novo. See United Air Lines, Inc. v. Int’l Assoc.

of Machinists & Aerospace Workers, AFL-CIO, 243 F.3d 349,

360-61 (7th Cir. 2001).

The union has not presented any evidence that Bellon has

threatened or committed “unlawful acts” as contemplated

by § 7(a) of the Act. See Marine Transp. Lines, Inc. v. Int’l

Org. of Masters, Mates & Pilots, 770 F.2d 1526, 1530 (11th

Cir. 1985) (suggesting that “unlawful acts” may be limited

to things akin to “violence, intimidation, threats, vandal-

ism, breaches of the peace and criminal acts”); see also

Wilson & Co. v. Birl, 105 F.2d 948, 952 (3d Cir. 1939) (con-

struing “unlawful acts” narrowly). Nor has plaintiff alleged

that public officials are unwilling or unable to protect it

from these acts, as required by § 7(e). Neither party ad-

dressed these points, however, and we do not rest our

conclusion on them.

Rather, our holding that the union has not shown irrep-

arable harm under traditional equitable principles also

dooms plaintiff’s chances for purposes of the Norris-

LaGuardia Act. Given the Act’s goal of limiting injunctive

relief in labor disputes, see AT&T Broadband, LLC v. Int’l

Bhd. of Elec. Workers, 317 F.3d 758, 760-61 (7th Cir. 2003),

we have no reason to suspect that § 7(b)’s requirement of

“substantial and irreparable injury” is less exacting than

equity’s demand of “irreparable harm.”4 Nor does plaintiff

argue that these standards differ. Accordingly, the union

has not demonstrated that it will suffer substantial and

irreparable injury, and is not entitled to an injunction

under the Act. We do not resolve whether it has met the

Act’s other requirements.

4

We do not consider whether § 7(b) might demand a stronger

showing.

No. 05-1236 15

III. Conclusion

Whether this case is governed by traditional equitable

principles or the Norris-LaGuardia Act, the union may ob-

tain a preliminary injunction only if it shows that it will

suffer irreparable harm absent the relief. Because it failed

to make that showing as a matter of law, the district court

abused its discretion by granting the injunction. Accord-

ingly, we REVERSE and REMAND with the instruction that

the district court dissolve the preliminary injunction.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-6-05