The opinion
TASHIMA, Circuit Judge,
dissenting:
I respectfully dissent. I disagree with the majority’s holding that the dispute between BNSF and Local 174 was not a labor dispute within the meaning of the Norris-LaGuardia Act (“NLGA”), thus rendering its anti-injunction provisions inapplicable. I also disagree that this record supports the issuance of a preliminary injunction under the Clayton Act. I would hold that a dispute between an employer and its subcontractor’s employees involving the issue of whether those employees would have any work at all is a labor dispute under the broad contours of the NLGA; thus, that its anti-injunction provisions apply.
I.
The majority argues that there was not a labor dispute between BNSF and Local 174 because these parties are not in an employer-employee relationship. Maj. op. at 911-12. The majority reasons that since Local 174 never had an intent to establish a collective bargaining relationship with BNSF, the dispute between the parties did not involve or grow out of a labor dispute. Maj. op. at 911. I cannot agree.
The majority relies primarily on Columbia River Packers Ass’n v. Hinton, 315 U.S. 143 , 62 S.Ct. 520 , 86 L.Ed. 750 (1942), and Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702 , 102 S.Ct. 2672 , 73 L.Ed.2d 327 (1982). Although these cases do hold that the employer-employee relationship must be at the matrix of the controversy for the NLGA to apply, id. at 712 , 102 S.Ct. 2672 ; Columbia River Packers, 315 U.S. at 146-47 , 62 S.Ct. 520 , this reasoning ignores the fact that the Supreme Court has consistently construed the term “labor dispute” in the NLGA in the very broadest of terms, finding only very limited exceptions to the Act’s anti-injunction provisions, none of which applies in this case. A close examination of the applicable law demonstrates that the labor dispute between BNSF and Local 174 unquestionably falls within the boundaries of the NLGA
From the Act’s inception, the Court has construed the term “labor dispute” broadly. See, e.g., New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 562 , 58 S.Ct. 703 , 82 L.Ed. 1012 (1938) (holding that labor disputes were not limited to those disagreements between employers and their direct employees); Milk Wagon Drivers’ Union, Local No. 753 v. Lake Valley Farm Products, 311 U.S. 91, 103 , 61 S.Ct. 122 , 85 L.Ed. 63 (1940) (holding that labor disputes under the NLGA included secondary strikes). In Order of R.R. Telegraphers v. Chicago & N.W. Ry., 362 U.S. 330, 335 , 80 S.Ct. 761 , 4 L.Ed.2d 774 (1960), the Court again signaled that the term “labor dispute” should be expansively interpreted.
Congress made the definition [of NLGA labor disputes] broad because it wanted it to be broad. There are few pieces of legislation where the congressional hearings, committee reports, and the language in the legislation itself more clearly point to the necessity for giving an Act a construction that will protect the congressional policy the Act adopted. Section 2 of this Act specifies the public policy to be taken into consideration in interpreting the Act’s language and in determining the jurisdiction and authority of federal courts; it is one of freedom of association, organization, representation and negotiation on the part of workers.
Id. at 335-36 , 80 S.Ct. 761 (emphasis added) (footnote omitted); see also American Fed’n of Musicians v. Carroll, 391 U.S. 99, 112-13 , 88 S.Ct. 1562 , 20 L.Ed.2d 460 (1968) (holding that combinations of non-labor groups and union labor groups were covered under NLGA and protected from injunctions). Under this broad definition of “any relation of employment,” the absence, as here, of a direct employer-employee relationship, will not defeat the existence a labor dispute. See 29 U.S.C. § 113 (c).
Moreover, the Court has defined labor disputes to include both politically motivated work stoppages and secondary picketing. In Jacksonville, the Court held that the NLGA *920 applied to politically-motivated work stoppages. See Jacksonville, 457 U.S. at 712 , 102 S.Ct. 2672 . The Court noted specifically that “[t]his Court has consistently given the anti-injunction provisions of the Norris-LaGuar-dia Act a broad interpretation, recognizing exceptions only in limited situations where necessary to accommodate the Act to specific federal legislation or paramount congressional policy.” 1 Id. at 708 , 102 S.Ct. 2672 (emphasis added).
The Jacksonville Court went on to emphasize the “extremely broad” statutory definition of a NLGA labor dispute, id. at 712 , 102 S.Ct. 2672 , and gave specific guidance as to its breadth:
The Act’s language is broad. The language is broad because Congress was intent upon taking the federal courts out of the labor injunction business except in the very limited circumstances left open for federal jurisdiction under the Norris-La-Guardia Act.
Id. at 712 , 102 S.Ct. 2672 (emphasis in original) (citations omitted). See also Burlington Northern R. Co. v. Brotherhood of Maintenance of Way Employes, 481 U.S. 429, 441 , 107 S.Ct. 1841 , 95 L.Ed.2d 381 (1987) (holding that federal court lacked jurisdiction to enjoin secondary picketing in railway labor cases, and declining to construe 29 U.S.C. § 113 (c) narrowly). The majority’s exclusion of the instant dispute runs contrary to the Supreme Court’s repeated and specific instructions to interpret the NLGA as broadly as possible.
The narrow class of exceptions to this broad reading of the NLGA almost exclusively concerns the sale of commodities. In Hinton , the Court found that a controversy between a fishermen’s association and a businessman was outside the boundaries of a NLGA labor dispute. Noting that the controversy was between fish sellers and fish buyers, the Court held that:
[A] dispute among businessmen over the terms of a contract for the sale of fish is something different from a controversy concerning terms or conditions of employment.... [T]he attention of Congress was focussed upon disputes affecting the employer-employee relationship, and ... the Act was not intended to have application to disputes over the sale of commodities.
Hinton, 315 U.S. at 145 , 62 S.Ct. 520 (quotations omitted) (emphasis added).
The majority argues that Hinton illustrates the Court’s narrowing of the NLGA’s application. This argument, however, is misdirected. Local 174’s controversy with BNSF does not concern the “sale of commodities,” but concerns the actual existence of work for Local 174. BNSF’s termination of its contract with Eagle System caused 53 members of Local 174 to lose their jobs.
The majority’s reliance on Bakery Sales Drivers, Local Union No. 33 v. Wagshal, 333 U.S. 437 , 68 S.Ct. 630 , 92 L.Ed. 792 (1948), is equally misplaced. Like Hinton, Bakery Sales involved a controversy over the sale of commodities. The Court held that the controversy over the amount of the bill for bread was between the store and the bakery, and did not become a “labor dispute” merely because a representative of the bakery drivers union collected the bill. The Court differentiated this controversy from NLGA “labor disputes” by its overwhelming business context:
To hold that under such circumstances a failure of two businessmen to come to terms created a labor dispute merely because what one of them sought might have affected the work of a particular employee of the other, would be to turn almost every controversy between sellers and buyers over price, quantity, quality, delivery, payment, credit, or any other business transaction into a “labor dispute.”
Id. at 443 , 68 S.Ct. 630 (emphasis added) (citation omitted). Contrary to the majority’s interpretation of Bakery Sales, the Court’s criticism was not pointed at labor disputes, such as that between BNSF and Local 174, which do not concern the sale of *921 commodities or payments between businessmen.
The Court has continued to distinguish controversies over the sale of commodities from genuine labor disputes. In Los Angeles Meat & Provision Drivers Union v. United States, 371 U.S. 94, 102 , 83 S.Ct. 162 , 9 L.Ed.2d 150 (1962), the Court held that grease peddlers who were “sellers of commodities,” and who joined the union only to further an illegal conspiracy to restrain trade, were not intended to be covered by the NLGA. The Court underlined Hinton’s holding that the Act was “not intended to have application to disputes over the sale of commodities,” id. (quoting Hinton, 315 U.S. at 145 , 62 S.Ct. 520 ), but was careful to point out that “both the Norris-LaGuardia Act and the Clayton Act ensure that the antitrust laws cannot be used as a vehicle to stifle legitimate labor union activities.” Id. at 103, 83 S.Ct. 162 .
An examination of the facts demonstrates that the labor dispute between BNSF and Local 174 falls within the boundaries of the NLGA. The present dispute began when BNSF terminated its contract with Eagle Systems (whose employees were represented by Local 174), causing 53 members of Local 174 to lose their jobs. Despite this termination, however, numerous Local 174 members continue to perform work for BNSF pursuant to a contract still in force between Eagle Systems and BNSF. Thus, although BNSF does not directly employ any of Local 174’s membérs, it did and does currently employ a subcontractor which employs them.
In response to BNSF’s termination of the Eagle Systems contract, Local 174 sent a letter to BNSF asking it to contract only with employers willing to sign collective bargaining agreements with Local 174 and threatened to picket in support of this demand. Although this dispute does not involve “rates of pay, rules, or working conditions” in the usual sense, it does involve the most basic of all working conditions — the very existence of work. Further, the NLGA prohibition on injunctions applies to any dispute “involving or growing out of’ a labor dispute. As this court has held, that phrase, “involving or growing out of a labor dispute,” is “extraordinarily broad.” Camping Const. Co. v. District Council of Iron Workers, 915 F.2d 1333 , 1342 (9th Cir.1990). Accordingly, I conclude that the dispute between Local 174 and BNSF is a labor dispute within the meaning of the NLGA and, thus, subject to its anti-injunction provision.
II.
BNSF contends that if there is a labor dispute, the Railway Labor Act, 45 U.S.C. § 151 (“RLA”), applies, because the threatened picketing contravenes the RLA’s stated purpose of avoiding any interruption to commerce or operation of any carrier. 2 Unlike the NLGA, however, the RLA requires a direct' employer-employee relationship, one which does not exist between BNSF and Local 174’s members.
Section 151 provides that the term “employee” includes “every person in the service of a carrier ... who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission now in effect.” 45 U.S.C. § 151 Fifth. We have interpreted this language to require a direct employer-employee connection. In Federal Express Corp. v. Teamster Union, Local # 85, 617 F.2d 524 (9th Cir.1980), we held that a union that was engaged in the secondary picketing of Federal Express did not fall under the RLA. The Federal Express court held that since there was no collective bargaining agreement between the union and Federal Express, there were no obligations under the RLA and the NLGA controlled. See id. at 526 . Similarly, in the instant dispute, as there is no collective bargaining agreement between the union and BNSF, no duties under the RLA arise. 3
*922 III.
The district court held that even if there was a labor dispute at issue, an injunction would be proper because of the “unlawful acts” exception contained in 29 U.S.C. § 107 . 4 Generally, the NLGA prohibits the issuance of an injunction, even if there was an antitrust violation. See 29 U.S.C. § 104 . 5 The NGLA does have a limited exception to its general prohibition against injunctions. See 29 U.S.C. § 107 . 6 As Local 174 points out, however, the district court did not make the required factual findings for a § 107(a) injunction nor did BNSF attempt to negotiate or mediate the dispute prior to its request for an injunction, as required by 29 U.S.C. § 108 . 7 As the NLGA standards for issuing an injunction have not been met, the district court erred in issuing the preliminary injunction.
Moreover, it was error to issue an injunction because BNSF did not provide the requisite proof of irreparable injury. Under the Clayton Act, antitrust standing for injunctive relief requires proof of an injury due to “threatened loss or damage by a violation of the antitrust laws ... and upon the ... showing that the danger or irreparable loss or damage is immediate.” 15 U.S.C. § 26 . The Supreme Court has held that to obtain injunctive relief under the Clayton Act, a private plaintiff must show “a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur.” Zenith Corp. v. Hazeltine, 395 U.S. 100, 130 , 89 S.Ct. 1562 , 23 L.Ed.2d 129 (1969).
Because this is a “rule of reason” case, the “factfinder must analyze the anti-competitive effects along with any pro-competitive effects to determine whether the practice is unreasonable on balance.” Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1413 (9th Cir.1991). The district court did not engage in this required analysis.
Here, the threatened loss that BNSF will suffer from most greatly is due to the picketing, not the anti-competitive agreement. While the district court discussed the anti-competitive effects of the proffered agreement, it focused primarily on the harm asso- *923 dated with the threatened picketing, rather than the alleged .antitrust violation. In granting the preliminary injunction, the district court found that “substantial goodwill might be lost as a result of the picketing and the consequent work stoppage, the value of which would be nearly impossible to measure .... [A] work stoppage at the Seattle hub would have a ripple effect across the country, causing potentially great and unknown loss to third parties.” Dist. Ct. Order of Aug. IS, 1997 at 9 (emphasis added). Considering that the injunction was issued under the Clayton Act, the district court’s focus on the possible harm from the picketing, as opposed to any anti-competitive effect of the agreement, was misplaced. The negative effects of picketing, standing alone, is an insufficient basis upon which to issue an antitrust injunction.
BNSF argues that Local 174’s proposed agreement would eliminate competition from other unions and their members in the market for representation of terminal operations workers, which would have serious effects on BNSF’s efficiency. As Local 174 points out, however, this is all conjecture. While the original proposed agreement may have violated the antitrust laws, no such agreement was reached, and Local 174 has repeatedly declared its willingness to be flexible in negotiations. The hypothetical terms of such a theoretical agreement are not enough to justify issuance of a preliminary injunction.
More importantly, the district court did not enjoin the enforcement of the union’s proposed agreement, but enjoined the union’s proposed picketing. The record is devoid of any evidence to show that BNSF would suffer irreparably from the allegedly anticompetitive agreement, as opposed to the threatened picketing; thus, because it is unsupported by any evidence of irreparable harm, it was error to issue a preliminary injunction. 8
IV.
I conclude first that there was a labor dispute under the NLGA and that the “unlawful acts” exception is inapplicable. I further conclude that BNSF has failed to make the minimum showing required for the issuance of a preliminary injunction under the Clayton Act. I would, therefore, vacate the district court’s preliminary injunction.
. As the majority held there was not a labor dispute, it did not reach this issue.
. BNSF cites Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 v. Western Pacific R.R., 809 F.2d 607, 609-10 (9th Cir.1987), for the proposition that "the court must look to the substance of the dispute” to decide whether the RLA applies. Western Pacific held that the district court lacked jurisdiction over a railway labor dispute between the railroad and some of its former employees over the substitution of an *922 intermediary subcontractor. BNSF argues that, similar to Western Pacific, Local 174 is seeking to create labor relations with BNSF, and thus Local 174 has "entered the RLA arena." Western Pacific, however, does not control the instant dispute. The Western Pacific workers were former employees of the carrier and their dispute centered over the interpretation of a transfer agreement executed during the carrier-employee relationship. Here, there never was any agreement between BNSF and Local 174 or its members that was or would be subject to the RLA.
. As the majority held that there was no labor dispute, it did not reach this issue.
. 29 U.S.C. § 104 provides that no court shall have jurisdiction to issue an injunction:
in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute ... from doing, whether singly or in concert, any of the following acts:
(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
(f) Assembling peaceably to act or to organize to act in promotion of their interest in a labor dispute;
(g) Advising or notifying any person of any intention to do any of the acts heretofore specified....
. 29 U.S.C. § 107 (a)-(c) provides that no court shall have jurisdiction to issue an injunction, except:
after hearing the testimony of witnesses in open court (with opportunity of cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after Sndings of fact by the court, to the effect-
(a) That unlawful acts have been threatened and will be committed unless restrained ...;
(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....
. 29 U.S.C. § 108 provides that:
No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.
. This case also fails to meet the traditional test for the issuance of a preliminary injunction, which applies to all cases, including antitrust cases, under which the plaintiff must show either "(1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in [plaintiff’s] favor.” Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir.1991) (citation omitted).