The opinion
GEWIN, Circuit Judge
(Dissenting):
The question presented by this appeal is a narrow one. We are called upon to decide whether the trial court abused its discretion in reaching the conclusion that the case was not one in which a preliminary injunction should be issued. I find no abuse of discretion. Accordingly, I would affirm the action of the district court and remand the case to the district court for a hearing on the question of whether the State of Alabama is a “carrier” within the meaning of the Railway Labor Act, 45 U.S.C. § 151 First, with relation to the activities of the State in the operation of certain maritime facilities and whether em *152 ployees in the maritime facilities of the State are employees within the meaning of the Railway Labor Act.
Under the sponsorship of a national policy to encourage water transportation declared by Congress in 1919, Rivers and Harbors Appropriation Act of 1919, 40 Statute 1275, 1286, the State of Alabama has been operating the Alabama State Docks at Mobile for almost 40 years. In connection with the operation, the Terminal Railway was created for the purpose of serving the maritime facilities of the State and to make such facilities “open to the use of all on equal terms.” Such an arrangement eliminates the possibility that any privately owned railroad may monopolize the port facili-tes constructed by the State to .encourage the use of water transportatiort facilities. The Terminal Railway not only serves the maritime facilities, it also serves private industries located on or adjacent to the property owned by the State in the vicinity of the maritime facilities.
There is no dispute as to the status of the employees of the Terminal Railway. It has long and consistently been recognized that the Terminal Railway is subject to the Railway Labor Act and the services of the mediation board have been used in labor disputes involving the Terminal Railway. It is admittedly a carrier within the meaning of the various acts of Congress regulating railroads.
Aside from the Terminal Railway, the maritime facilities consist of the Docks Department, Bulk Material Handling Plant, Grain Elevator, Cotton Compress and Warehouse, Cold Storage Plant, and Bulk Oil Plant. The present controversy relates to those employees of the several departments mentioned (not including the Terminal Railway) except officers of the State Docks Department, office and clerical employees, and employees who are covered by existing-collective bargaining agreements pursuant to the provisions of the Railway Labor Act. All of the employees of the Terminal Railway are represented by unions certified under the Railway Labor Act.
The usual function of a preliminary injunction is to preserve the status quo pending a determination of the case on its merits. While there is no absolute standard by which the discretion of a trial judge is to be determined in granting or refusing a preliminary injunction, it is always his duty to balance the relative conveniences of the parties. The very nature of the question dictates the exercise of a broad, general discretion. The action of the district court should not be disturbed unless the record demonstrates a clear abuse of such discretion. Calagaz v. DeFries (5 Cir. 1962) 303 F.2d 588 , 590; Bancroft & Sons Co. v. Shelley Knitting Mills (3 Cir. 1959) 268 F.2d 569 ; Miami Beach Federal Savings & Loan Assoc. v. Callender (5 Cir. 1958) 256 F.2d 410 , 415; Jimenez v. Barber (9 Cir. 1958) 252 F.2d 550 ; Burton v. Matanuska Valley Lines (9 Cir. 1957) 244 F.2d 647, 650-651 , 17 Alaska 298 .
When this ease was before us on the former appeal, United States v. Feaster, 5 Cir., 330 F.2d 671 (1964), we reversed and remanded to the district court under the following mandate:
“The allegation of carrier status is subject to proof just like any other allegation in the complaint. If it is proved, then the appellees are required to make the records available as sought in the complaint.”
The “carrier status” issue is still unresolved. There is a complaint alleging that the employees of the maritime facilities are carrier employees and there is a denial of such status. The issue presented should not be decided by summary judgment procedure but there should be a full and complete hearing. This is especially true because the relief sought by preliminary injunction was not to preserve the status quo but rather to completely change it. Tanner Motor Livery Ltd. v. Avis, Inc. (9 Cir. 1963) 316 F.2d 804 , 808-809. See also Switzerland Cheese Association, Inc., et al. v. *153 Horne’s Market, 385 U.S. 23 , 87 S.Ct. 193 , 17 L.Ed.2d 23 (1966). 1
At a full hearing upon the merits, the conflicting contentions of the parties can be resolved. The issue presented is not entirely simple and a decision should be reached only after hearing the evidence. See Pan American World Airways, Inc. v. United Brotherhood of Carpenters & Joiners of America (9 Cir. 1963) 324 F.2d 217 , cert. den. 376 U.S. 964 , 84 S.Ct. 1122 , 11 L.Ed.2d 982 ; Northwest Airlines v. Jackson (8 Cir. 1950) 185 F.2d 74 ; Walling v. Baltimore Steam Packet Co. (4 Cir. 1944) 144 F.2d 130 ; Allen v. Ocean S. S. Co. of Savannah (5 Cir. 1941) 123 F.2d 469 .
. In the Switzerland Cheese case the Court stated:
“It is earnestly argued however that, although this order denied a immanent injunction, it was nonetheless ‘interlocutory’ within the meaning of § 1292 (a) (1) because the motion for summary judgment did service for a motion for a preliminary injunction (see Federal Glass Co. v. Loshin, supra [2 Cir., 217 F.2d 936 ,] at 938) and that therefore ‘interlocutory’ must also include a denial of a permanent injunction.
“We take the other view not because ‘interlocutory’ or preliminary may not at times embrace denials of permanent injunctions, but for the reason that the denial of a motion for a summary judgment because of unresolved issues of fact does not settle or even tentatively decide anything about the merits of the claim. It is strictly a pretrial order that decides only one thing — that the case should go to trial.” (Emphasis added)