Petition for a Writ of Certiorari — United States Steel Corp. v. United Mine Workers of America

Supreme Court brief1972

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71-140 .

OCTOBER TERM, 1971

UNITED STATES STEEL CORPORATION e¢ al.,

Petitioners

Vv.

UNITED MINE WORKERS OF AMERICA et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

and APPENDICES

NICHOLAS UNKOVIC

LEONARD L. SCHEINHOLTZ

HARLEY N. TRICE II

REED SMITH SHAW & McCLAYy

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Counsel for Petitioners, United

States Steel Curporation, ~ Jones

& Laughlin Steel Corporation and

Bethlehem Mines Corporation

CLYDE W. ARMSTRONG

RALPH T. DESTEFANO

THORP, REED & ARMSTRONG

2900 Grant Building

Pittsburgh, Pennsylvania 15219

Counsel for Petitioner, -

Republic Steel Corporation

SMITH BROS... LAW PRINTERS. 620 SECOND AVENUE. PITTSBURGH. PA. 15219

hints | APR 29 1st?

INTHE © edt Stata Tats ROK J8_CLeEs

Supreme Court of the Unit i

acme PAGE

ana rapier nde megan ae Ra oaion oi 2

Ne ea ere ny <a as 2

QUESTIONS PRESENTED ..... Pear pawn eae ee 2

STATUTES AND RULES INVOLVED ........... 3

STATEMENT OF THE CASE ................. ceo ee

REASONS FOR GRANTING WRIT .............. 10

I ee cn eee, eis 20

antag ne when ea 21

TABLE OF CITATIONS

CASES

Atomic Oil Co. of Oklahoma, Inc. v. Bardahl Oil

Company, 419 F.2d 1097 (10th Cir. 1969) .... 16

Bethlehem Mines Corporation, et al. v. United Mine

Workers, et al., F.2d —— (3rd Cir. 1972),

PE NE aos oo or ee Pe es 9n.6

Boys Markets v. Retail Clerks Union, Local 770,

ee a ee AE eae ec eo eae hak 10-12

Duke Power Co. v. Greenwood County, 25 F.Supp. .

gg a ye ee 14n.8

‘Elgin J. & E. Ry. Co. v. Brotherhood of Railroad

- Trainmen, 196 F.Supp. 158 (N.D. il. ELD.

1961), 302 F.2d 540 (7th Cir. 1962) ...... 17: n. 10

Friend v. United States, 388 F.2d 579 (D.C. Cir.

RRR RR atin, Se ence 13

International Ladies Garment Workers’ Union v.

Donnelly Garment Co., 147 F.2d-246 (8th Cir.

1945) cert. denied, 325 U.S. 852 (1945).....

Ri ep Rate Cae rene! cle rage™ hater 13-15 & 17-18

Janssen v. Shown, 53 F.2d 608 (9th Cir. 1931) .... 12

Lawrence v. St. Louis-San Francisco R. Co., 278 U.S.

Se Not ee a as ee

Index.

CASES _ PAGE

Madison Shipping Corp. v. National Maritime Union,

204 F.Supp. 22 (E.D. Pa. 1962) ........ 12&14n.8

. Meeker v. Stuart, 298 F.2d 902 (D.C. Cir. 1961),

affirming 188 F.Supp. 272 (D.D.C. 1960) ..... 12

Monolith Portland Mid. Co. v. Reconstruction F.

Corp., 128 F.Supp. 824 (S.D. Cal. 1955) ....14n.8

Pacific Maritime Ass’n. v. International Longshore.

& W.U., 454 F.2d 262 (9th Cir. 1971) ........ 13

Powelton Civic Home Own. Ass’n. v. Department of

H. & U. Dev., 284 F.Supp. 809 (E.D. Pa. 1968) 14n.8

Sinclair Refining Co. v. Atkinson, 370 U.S. 195

LARS a RNa aeE cme: ini Moni Neath ee eta

Teamster Local 174 v. Lucas Flour Co., 369 U.S.

ee ee hn EU Lt a ar eat E 11 |

United Motors Service v. Tropic-aire, 57 F.2d 479

GG EDS kp cc hon bh each eee ks 15-16

United States v. Concentrated Phosphate Export

Ass’n., Inc., 393 U.S. 199 (1968) ............ 13

United States Steel Corporation, et al. v. United

Mine Workers of America, et al., 317 7 <ee.

eee Cee Pe SE bik ances eines 3

United States Steel Corporation, et al. v. United -

Mine Workers of America, et al., —— F.2d

[a ee: GED. EA aks cae nea ca ea ees 3

West v. Zurhorst, 425 F.2d 919 (2nd Cir. 1970) .... 16

ili

Index.

STATUTES AND RULES : _ PAGE

Federal Rules of Civil Procedure

Federal Rule 65(c) ......-------- 5, 9, 13, 15 & 16

Labor-Management Relations Act of 1947, as

amended, 61 Stat. 156, 29 U.S.C. §185(a) ....

Oe ee ON eae Sk Nea ak ee a 4,10-11, 14 &15

Norris-LaGuardia Act, 47 Stat. 70,

29 U.S.C. §101 et seq. ...... 6-8, 10-12, 14-15 & 17-19

OTHER AUTHORITIES

72 Cong. Rec. 4630 (1932) (Remarks of Senator

ee erie cree rose ee ee oe eee 19

7 Moore’s Federal Practice, 165.09, p. 1657 (2nd ed.

BE eC ey rains aaa eee bee 15 n. 9

In THE

Supreme Court of the United States

OCTOBER TERM, 1971

UNITED STATES STEEL CORPORATION et al.,

Petitioners

Vv.

UNITED MINE WORKERS OF AMERICA et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS .

FOR THE THIRD CIRCUIT .

United States Steel Corporation, Jones & Laughlin

Steel Corporation, Bethlehem Mines Corporation, and

Republic Steel’ Corporation, petitioners, respectfully

pray that a writ of certiorari issue to review the deci-

sion of the United States Court of Appeals for the Third

Circuit entered in the above-entitled consolidated cases.

on February 3, 1972, in which the court reversed the

District Court’s order which had denied respondents’!

motion for award of reasonable costs, expenses and at-

torneys’ fees.

1. Respondents are individually designated in the

caption of the opinion of the Court of Appeals set forth

in Appendix B, infra, pp. 26-30.

Questions Presented.

OPINIONS BELOW

The opinion of the District Court for the Western

District of Pennsylvania, entered September 30, 1970,

is reported at 317 F.Supp. 1070 (Appendix A, infra, pp.

21-25). The opinion of the United States Court of’ Ap-

peals for the Third Circuit (Appendix B, infra, pp. 26-

53) is reported at ——— F.2d -——, and was filed on Feb-

ruary 3, 1972.

JURISDICTION

The judgment of the Court of Appeals ( Appendix C,

infra, p. 54) was entered on February 3, 1972.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254 (1).

The jurisdiction of the District Court was by virtue

of 29 U.S.C. § 185.

QUESTIONS PRESENTED

Four employers sought and obtained preliminary

injunctions under § 301 of the Labor-Management Rela-

tions Act of 1947, as amended (29 U.S.C. § 185) to en-

join a strike over an arbitrable dispute. They posted in-)

junction bonds pursuant to Federal Rule 65 (c) totalling

$4,000 conditioned to pay “costs and damages” incurred

by any party found to have been wrongfully enjoined.

The preliminary injunction was reversed and remanded

for a hearing de novo on the merits. At that hearing, the

injunction proceedings were, by agreement of the par-

ties, continued indefinitely because the work stoppage

Statutes and Rules Involved.

had ended. Thereafter, the defendant unions filed a mo-

tion for reasonable attorneys’ fees and expenses under

§ 7 of the Norris-LaGuardia Act (29 U.S.C. § 107). The

amount of such attorneys’ fees and expenses substan-

tially exceeded the aggregate amount of the injunction

bonds. The questions presented for determination are:

1. Whether the bond provisions of £ 7 of Norris-

LaGuardia, which provide for the payment of reasonable

attorneys’ fees and expenses, are applicable where an in-

junction is sought and obtained unfler § 301 to enjoin a.

strike over an arbitrable dispute;

2. Whether any recovery may be had on an injunc-

tion bond when there has been no decision on the merits

as to the employers’ right to injunctive relief;

3. Whether attorneys’ fees are recoverable on a’

bond posted in a § 301 injunction action Pursuant to Fed-

eral Rule 65 (c) and conditioned only to pay “costs and

damages” ; and

4. Whether employers who: obtain an injunction

under § 301 may be held liable for an amount in excess

of that specified in the bonds posted pursuant to Fed-

eral Rule 65 (c) and approved by the District Court.

STATUTES AND RULES INVOLVED

The statutory provisions and rules involved are:

Section 7 of the Norris-LaGuardia Act, 47 Stat. 71, 29

U.S.C. Section 107; Section 301 of the Labor-Manage-

ment Relations Act of 1947, as amended, 61 Stat. 156, 29

U.S.C. Section 185(a); and Federal Rule of Civil Pro-

cedure 65 (c). They are printed in Appendix D, infra,

pp. 55-57.

Statement of the Case.

| STATEMENT OF THE CASE

On June 22, 1970, petitioners, United States Steel

Corporation, Jones & Laughlin Steel Corporation, and

Bethlehem Mines Corporation? filed actions under Sec-

tion 301 of the Labor-Management Relations Act of

1947, as amended, 29 U.S.C. § 185 (the “Act”), to enjoin

the respondents from engaging in work stoppages over

disputes which were subject to resolution through the

Settlement of Local and District Disputes procedure of

the National Bituminous Coal Wage Agreement of 1968.

After a hearing on petitioners’ applications for pre-

liminary injunctions, the District Court by orders dated

June 24, 1970 (R. 35a, 39a and 48a)* as amended on

’ June 25, 1970 (R. 37a, 46, 49a and 51a), preliminarily en-

joined the respondents from engaging in, or continuing

to engage in, work stoppages at petitioners’ mines; from

picketing, or in any other manner interfering with the

orderly resumption of, or continuation of, operations;

and directed respondents, their officers, representatives

and members to utilize the Settlement of Local and Dis-

trict Disputes procedure of the labor agreement for the

resolution of any grievances, differences or local trouble

at petitioners’ mines. Each of the four orders further

provided that “Bond in the amount of $1,000 has been

approved and filed with the Court by plaintiff.” ( R. 38a,

47a, 50a and 52a).

2. On June 25, 1970, petitioner Republic Steel Cor-

poration filed a similar action under Section 301 seek- ©

ing the same relief.

3. All references to the appendix filed by wer]

ents in the Court of Appeals are designated “R.

et’ oo Sere

Statement of the Case.

Each of the petitioners filed a bond pursuant to

Rule 65(c) of the Federai Rules of Civil Procedure, the

condition of the bond being that “the plaintiff shall be

liable to the defendants for such costs and damages, not

exceeding the sum of $1,000.00, as defendants or any

other person may sustain by reason of the Preliminary

Injunction, if the Court finally decides that plaintiff is

not entitled thereto.”* No complaint was made by the

respondents to the District Court as to the conditions or

the amount of the bond.

Respondents filed immediate appeals from the

orders granting the preliminary injunctions, and on

June 30, 1970, the United States Court of Appeals for the

Third Circuit summarily reversed and remanded these

cases to the District Court “without prejudice to a re-

quest for a hearing de novo on the application for a pre-

liminary injunction” (R. 7la). The court stated that it

was taking this action “because we find that the parties

were effectively denied the opportunity to develop their

respective positions by erroneous rulings of the[Dis-

trict] Court” (R. 66a), and emphasized that “we have

not reached the issue of the merits of the request for a

preliminary injunction” (R. 71a).

On July 9, 1970, pursuant to the order of remand,

the District Court commenced a de novo hearing on peti-

tioners’ application for a preliminary injunction, and on

the following day, based upon certain representations

4. See R. 40a for the injunction bond given in Civil

Action No. 70-725; the bonds given by petitioners gnd

approved by the District Court in Civil Action Nos. 70-

724, 70-727 and 70-728 are identical in every material re-

spect.

Statement of the Case.

and stipulations of counsel for the respective parties,5

the District Court entered an order continuing the hear-

ing until further notice by the court (R. 76a).

On August 14, 1970, respondents filed their Motion

for Award of Reasonabie Costs, Expenses, and Attor-

neys’ Fees (R. 78a). After a hearing, the District Court

in an opinion dated September 30, 1970, denied the mo-

tion (R. 139a). The court concluded that insofar as the

motion related to expenses and attorneys’ fees incurred

in connection with the appeal, the order of the Court of

Appeals prescribing that each party was to bear its own

costs was dispositive of the question of costs on appeal

(R. 142a). The District Court also concluded that the

requests for costs, expenses and attorneys’ fees incurred

by the respondents in opposing the requests for the pre-

liminary injunction in the District Court should be

denied as being prematurely made, since there had been

pol Tay “no final determination of respendents' claims for injunc-

tive relief (R. 142a). These conclusions by the District

Court made it unnecessary for the court to decide

whether the terms of Section 7 of the Norris-LaGuardia .

Act, 29 U.S.C. § 107, requiring security for reasonable at-

torneys’ fees and legal expenses must be read into a bond

filed precedent to the issuance of an injunction against

5. These stipulations were that to the knowledge

of the defendants no picketing, work stoppage or strike

existed at the time, and none was known to be antici-

pated in the immediate future, and that the plaintiffs, in

good faith, would utilize their best efforts to comply

with the Federal Coal Mine Health and Safety Act of

1969 and counsel for the respective defendants would

counsel the officers and members of the defendant ”

unions to refrain from any work stoppage or picketing

at plaintiffs’ mines (R. 76a).

Statement of the Case.

concerted activity alleged to be in violation of a collec-

tive bargaining agreement (R. 143a).

On October 21, 1970, respondents appealed from the

order of the District Court denying their motion for

costs, expenses and attorneys’ fees. Thereafter, on De-

cember 10, 1970, petitioners filed a motion to dismiss the

appeals on the ground that the order, which denied re-

spondents’ motion without prejudice as premature, was

not a final order. On January 12, 1971, the Court of Ap-

peals denied petitioners’ motion to dismiss without opin-

ion.

In its opinion of February 3,,.1972, reversing the

decision of the District Court, the Court of Appeals

treated the stipulation continuing the hearing on the

application for a preliminary injunction as ending the

lawsuit for all practical purposes because the work stop-

pages complained of had ceased (Appendix B, p. 33).

It did so, even though answers and counterclaims were

subsequently filed by certain of the respondents and the

case will eventually come up for final hearing (R. 6a,

14a, 23a, 33a).

The Court of Appeals held that the bond provisions

of § 7 of the Norris-LaGuardia Act, that a plaintiff shall

file an undertaking for loss, expense, or damage, includ-

ing costs, together with a reasonable attorneys’ fee be-

fore a preliminary injunction can issue in a labor dis-

pute, apply in a federal court even when, as here, the

injunction is sought under § 301 of the Labor-Manage-

ment Relations Act of 1947. as amended (Appendix B,

p. 40). The Court of Appeals further held that if, in a

labor dispute, the plaintiff seeking a preliminary injunc-

tion tenders, and the district court approves, a bond

Statement of the Case.

conditioned for “costs and damages”, that undertaking

must be construed to include all the elements of damage

which are recoverable under § 7 of Norris-LaGuardia, in-

cluding attorneys’ fees (Appendix B, p. 43). Finally,

the Court of Appeals held (with one judge dissenting)

that in any case involving a labor dispute, including an

action for an injunction sought under § 301, the liability

of the plaintiffs, though not of the surety, for loss, ex-

pense or damage, including attorneys’ fees, under $7 of

Norris-LaGuardia, must be fixed by the district court

without regard to any limitation in the injunction bond

( Appendix B, p. 50).

Judge Kalodner, while concurring in the reversal of

the District Court’s order, dissented from the majority’s

direction to the District Court to enter a judgment

against petitioners in the injunction proceedings for an

amount in excess of that stipulated in the injunction

bonds. In the dissenting judge’s view, when defendants

seek recovery of their reasonable attorneys’ fees and ex-

penses in the same proceedings in which the preliminary

injunctions were improvidently issued, they are limited

in their recovery, by virtue of § 7(e) of Norris-LaGuar-

dia; to the amounts specified in the injunction bonds

(Appendix B, p. 51) ; and he termed the majority’s con-

struction of § 7(e) in permitting recovery in the same

proceedings of an amount in excess of the injunction

bonds as “impermissible judicial legislation” (Appen-

dix B, p. 53).

The effect of the majority’s decision was to hold

petitioners liable under § 7 of Norris-LaGuardia to re-

spondents and certain other parties to the litigation not

Statement of the Case.

involved in this petition for certiorari® for approxi-

mately $11,350 in attorneys’ fees and expenses, even

though there has never been a decision on the merits

that petitioners were not entitled to the injunctive relief

they sought under § 301, and even though the bonds they

posted under Federal Rule 65(c) were conditioned only

to pay “costs and damages”, and the aggregate amount

of the injunction bonds was only $4,000.

6. On February 28, 1972, the same panel, in a per

curiam opinion (with Judge Kalodner again concurring

in part and dissenting in part), reached the same con-

clusions with respect to the remaining parties to this

litigation. Bethlehem Mines Corporation, et al. v. United

Mine Workers, et al., F.2d , 79 LRRM 2816.

Petitioners also intend to file a petition for certiorari

with respect to this decision by the Court of Appeals.

c $Y

Reasons for Granting Writ.

REASONS FOR GRANTING WRIT

1. This case raises an important question of fed-

eral law which has not been, but should be, settled by

this Court. In Boys Markets v. Retail Clerks Union, Lo-

cal 770, 398 U.S. 235 (1970), this Court held that, not-

withstanding the anti-injunction provisions of § 4 of

the Norris-LaGuardia Act, a federal court has jurisdic-

tion under § 301(a) of the Labor-Management Relations

Act of 1947, as amended, to enjoin a strike over an ar-

bitrable grievance. The present case involves the unde-

cided question as to whether the bond provision -of § 7

of the Norris-LaGuardia Act applies to an action

brought under § 301(a) in which an employer seeks and

obtains a preliminary injunction barring a strike over

an arbitrable grievance.

In reaching the conclusion in Boys Markets that the

literal terms of § 4 of the Norris-LaGuardia Act must

be accommodated to the subsequently enacted provisions

of § 301(a) of the Labor-Management Relations Act of

1947, as amended, this Court pointed out that the Nor-

ris-LaGuardia Act “was responsive to a situation totally

different from that which exists today” (398 U.S. at

250). However, this Court emphasized that its holding

was a narrow one, dealing “only with the situation in

which a collective bargaining contract contains a man-

datory grievance adjustment or arbitration procedure”

(398 U.S. at 253), and it adopted from the dissenting

opinion in Sinclair Refining Co. v. Atkinson, 370 US.

195 (1962), certain guidelines to be followed by a fed-

eral court in determining whether an injunction would

be appropriate despite the Norris-LaGuardia Act.

Reasons for Granting Writ.

While this Court, in Boys Markets, was dealing

specifically with $4 of the Norris-LaGuardia Act, the

same rationale is applicable to the bond provision con-

tained in § 7 of that Act. If the district court, on the

basis of the principles adopted in Boys Markets, de-

termines that the case is one in which an injunction

would be appropriate despite Norris-LaGuardia, that

Act—and this includes § 7 — has no application.

The Court of Appeals improperly interpreted Boys

Markets as relating only to § 4 of the Norris-LaGuardia

Act and to no other provision of that Act, and er-

roneously concluded that every other provision of Nor-

ris-LaGuardia applies to a § 301 injunction action, even

though it recognized that “some of the specific findings

of fact required by § 7 are inappropriate in a $301 case”

(Appendix B, p. 39). |

One of the principal factors which prompted this

Court to reverse Sinclair was its desire to re-establish

the federal policy of labor law uniformity under § 301

expressed in Teamster Local 174 v. Lucas Flour Co., 369

U.S. 95 (1962). The decision of the Court of Appeals in

this case offends that policy of uniformity.

Section 7 of the Norris-LaGuardia Act provides

that an employer obtaining an injunction must post a

bond to compensate the union for any loss, expense or

damage caused by the improvident or erroneous issu-

ance of the injunction, including attorneys’ fees incurred

in defending against the injunction. While, as this

Court noted in Boys Markets (398 U.S. at p. 247, n. 15),

one half of the states have enacted so-called “little

Norris-LaGuardia Acts’, only eight of them have bond

provisions expressly requiring the payment of attor-

Reasons for Granting Writ.

neys’ fees as in § 7 of the Norris-LaGuardia Act.? Thus,

tho dooiaian. Kf tha Courtr Vi taeppedm wlli scive ‘vw re-

create the very lack of uniformity found offensive in

Boys Markets and, at least in those states which do not

have bond provisions similar to $7 of Norris-LaGuardia,

will undoubtedly cause a return to the use of removal

proceedings under 28 U.S.C. $1441 and to maneuvering

from one court to another which will, again, “frustrate

any relative uniformity in the enforcement of arbitra-

tion agreements” (398 U.S. at 246). F

2. In deciding that the respondents were entitled

to recover on the injunction bonds even though there

has not been a decision on the merits as to petitioners’

right to injunctive relief, the Court of Appeals decided

a federal question in a way which substantially con-

flicts with the decision of this Court in Lawrence v. St.

Louis-San Francisco R. Co., 278 U.S. 228 (1929), and

with the decisions of the Courts of Appeal for the

Ninth and District of Columbia Circuits in Janssen v.

Shown, 53 F.2d 608 (9th Cir. 1931), and Meeker v.

Stuart, 298 F.2d 902 (D.C. Cir. 1961), affirming 188

F.Supp. 272 (D.D.C. 1960). These cases all hold that

there can be no recovery of damages caused by the is-

suance of a preliminary injunction, even if set aside,

unless final judgment after trial is in favor of the party

who has been enjoined. See, also, Madison Shipping

Corp. v. National Maritime Union, 204 F.Supp. 22 (E.D.

Pa. 1962).

- %. See Hawaii Rev. Laws, Act 200, §7, L. (1963);

Mass. Laws Ann., ch. 214, $9A (1955); Minn. Stat. Ann.,

No. 13A, $185.13 (1966); N.J. Stat. Ann., 2A, Ch. 15,

$52 (1952); N.Y. Consol. Laws, Lab. $807.3 (McKinney

Supp. 1965) ; Nth. Dak. Cent. Code Ann., Vol. 7, 34-08-08

(1961); Pa. Stat. Ann., tit. 43, §206 (j) (1964); and

Utah Code Ann., 34-19-5 (1971).

. 13

Reasons for Granting Writ.

The Court of Appeals improperly concluded that

the effect of the stipulation of July 10, 1970, continu-

ing the hearing on petitioners’ application for a pre-

liminary injunction, was to end the lawsuit because by

then the work stoppage complained of had ceased. In

essence, then, the Court of Appeals treated the case as .

being moot. It is well settled, however, that an issue re-

mains “live” unless subsequent events make it absolute-

ly clear that the alleged wrongful behavior could not

reasonably be expected to recur: United States v. Con-

centrated Phosphate Export Ass’n., Inc., 393 U.S. 199,

203 (1968); Pacific Maritime Ass’n v. International

Longshore. & W. U., 454 F.2d 262 (9th Cir. 1971) ; Friend

v. United States, 388 F.2d 579, 581 (D.C.:.Cir. 1967).

Moreover, the fact that answers and counterclaims

have been filed by respondents after the renewed hear-

ing on the application for a preliminary injunction was

continued indefinitely demonstrates beyond any ques-

tion that the lawsuit has not ended.

3. The decision of the Court of Appeals permitting

. respondents to recover for attorneys’ fees and expenses,

a liability not specified in the injunction bond, is in di-

rect conflict with the decision of the Eighth Circuit in

International Ladies Garment Workers’ Union v. Don-

nelly Garment Co., 147 F.2d 246 (8th Cir. 1945) cert.

denied, 325 U.S. 852 (1945).

In the present case, the injunction: bonds were

posted by petitioners pursuant to Federal Rule 65(c)

and, in conformity with the requirements of this rule,

were conditioned to pay “costs and damages” incurred

by any party found to have been wrongfully enjoined.

The District Court did not require, and the bonds did

not contain, any undertaking to pay reasonable at-

Reasons for Granting Writ.

torneys’ fees and expenses as provided in $ 7 of the Nor-

ris-LaGuardia Act, and no objection was raised by re-

spondents to the terms and conditions of the bond. Nev-

ertheless, the Court of Appeals, contrary to the de-

cision of the Eighth Circuit in Donnelly, supra, * con-

cluded that the provisions of £ 7 of the Norris-LaGuar-

dia Act must be read into a bond filed in a § 301 injunc-

tion action, and held that respondents were, therefore,

entitled to recover attorneys’ fees and expenses under

the injunction bond. The Third Circuit expressly de-

clined to follow and apply the Eighth Circuit’s decision

in the Donnelly case, because, in its view, which it ar-

rived at by tortured and erroneous reasoning, Donnelly

and other cases which have followed it “are based upon

a misinterpretation in Heiser [v. Woodruff, 128 F.2d

178 (10th Cir. 1942) ] of the holdings of Tullock v. Mul-

vane [184 U.S. 497 (1902)] and Oelrichs v. Spain [82

U.S. 211 (1872)]". The Court of Appeals cites no au-

thority for its holding that a bond posted in a § 301

injunction action conditioned to pay “costs and dam-

ages” must be construed to include liability for attor-

neys’ fees and expenses by virtue of § 7 of the Norris-

8. The Court of Appeals also recognized that its

decision conflicted with Madison Shipping Corp. v. Na-

tional Maritime Union, 204 F.Supp. 22 (E.D. Pa. 1962),

and Duke Power Co. v. Greenwood County, 25 F.Supp.

419 \W.DS.C. 1938). See, also, Powelton Civic Home

Owners Ass'n. v. H.E.W., 284 F.Supp. 809 (E.D Pa.

1968). and Monolith Portland Midwest Co. v. Reconstruc-

tion Finance Corp., 128 F.Supp. 824,878 (S.D. Cal. 1955),

which the Court of Appeals regarded as not being in

point on the interpretation of the bond, while conceding

that they support the proposition that attorneys’ fees

are not ordinarily an element of damages in the federal

courts (Appendix B, p. 42, n. 5).

Reasons for Granting Writ.

LaGuardia Act, and there is none. It is appropriate for

this Court to resolve the conflict between the Third and

the Eighth Circuit on this important issue, since the de-

cision on this question will materially affect the type

of bond to be given in every £ 301 suit for injunctive re-

lief in a federal court.

4. The decision of the Court of Appeals is also in

direct conflict with the decision of the Eighth Circuit

on the issue of whether respondents are entitled to re-

cover an amount in excess of that specified in the in-

junction bonds. These bonds were posted pursuant to

federal Rule 65 (c) and approved by the District Court.

No effort was ever made by respondents to obtain an

increase in the amount of these bonds. In spite of this.

the Court of Appeals concluded that petitioners were

liable to respondents for an amount substantially in ex-

cess of the limits of the bonds which had been posted.

The Court of Appeals again recognized that its de-

cision on this question was in conflict with the decision

of the Eighth Circuit in International Ladies Garment

Workers’ Union v. Donnelly Garment Co., supra, and

with an earlier decision of the Eighth Circuit in United

Motors Service v. Tropic-aire, 57 F.2d 479 (8th Cir.

1932), which the Third Circuit expressly declined to

follow on the grounds that the Eighth Circuit had “mis-

apprehended the holdings of the Supreme Court cases on

which it relied” (Appendix B, p. 44). The Donnelly

case holds that the monetary amount of an injunction

bond, whether posted pursuant to Federal Rule 65 (c)

r $ 7 of the Norris-LaGuardia Act, is the limit of a

9 7 Moore’s Federal Practice, "65.09. p. 1657 (2nd

ed..-1971).

Reasons for Granting Writ.

plaintiff's liability and the measure of a defendant’s pro-

tection for the wrongful issuance of an injunction. The

United Motors Service case is to the same effect as toa

bond posted under Federal Rule 65 (c) as is West v.

Zurhorst.425 F.2d 919 (2nd Cir. 1970), and Atomic Oil

Co. of Oklahoma, Inc. v. Bardahl Oil Company, 419 F.2d

1097 (10th Cir. 1969).

The Third Circuit, asserting that no Supreme Court

authority had been called to its attention holding that

the liability of a plaintiff who has been improperly

granted an injunction is limited to the amount of the

bond he furnished, found the authority of the Eighth

Cireuit in Donnelly on this issue “unpersuasive” ( Ap-

pendix B, pp. 46-47).

The reasoning of the Third Circuit in reaching the

conclusion that respondents are not limited to the

amount of injunction bonds is far more unpersuasive. It

Starts with the wholly unfounded assertion that the

Donnelly approach “would rule out any liability for

wrongfully obtaining an injunction in any case where

the court did not require the posting of a bond”: ( Appen-

dix B. p. 47). What the Court of Appeals completely

overlooked is the fact that no injunction issued under

Federal Rule 65 is effective unless and until an injunc-

tion bond is posted pursuant to Federal Rule 65/c). As

the Court of Appeals for the Tenth Circuit aptly ob-

served in Atomic Oil Co. of Oklahoma, Inc. v. Bardahl

Oil Company, 419 F.2d 1097, 1100 (10th Cir. 1969) :

“Rule 65(c) states in mandatory language that the giv-

ing of security is an absolute condition precedent to the

issuance of a preliminary injunction.”

Reasons for Granting Writ.

Moreover, the Court of Appeals’ effort to distin-

guish the holdings of the cases upon which Donnelly re-

lied is itself erroneous. Thus, Lawrence v. St. Louis-San

Francisco R. Co., 278 U.S. 228 (1929), is not a state

court proceeding as the Court of Appeals asserts (Ap-

pendix B, pp. #@), but involved a preliminary injunction

issued by a federal court.1°

Therefore, the decision of the Third Circuit holding

petitioners liable for an amount in excess of that speci-

fied in the injunction bonds posted pursuant to Federal

Rule 65(c) has created a serious conflict on a highly

important question which this Court should resolve.

5. Quite apart from the conflict in the circuits cre-

ated by the holding that petitioners are liable for an

amount in excess of the injunction bonds, the basis upon

which the Court of Appeals arrived at this result in-

volves a serious misinterpretation of the language of $ 7

of the Norris-LaGuardia Act and of the intent of Con-

gress in adopting the bond provision. The key language

is that “[n]o temporary restraining order or temporary

injunction shall be issued except on condition that com-

plainant shall first file an undertaking with adequate

10. Similarly, the Court of Appeals misread Elqin

J.& E. Ry. Co. v. Brotherhood of Railroad Trainmen, 302

F.2d 540 (7th Cir. 1962), as standing for the proposition

that the plaintiff's liability under § 7 of Norris-LaGuar-

dia is open ended. It came to this conclusion because its

reading of the circuit court and district court opinions

did not disclose whether a bond was filed or, if so, in

what amount. Actually, as the opinion of the district

court clearly shows, the plaintiff there did post an in-

junction bond which provided the basis for recovery:

Elgin J. & E. Ry Co. v. Brotherhood of Railroad Train-

men, 196 F.Supp. 158, 167 (N.D. Ill. E.D. 1961).

Reasons for Granting Writ.

security in an amount to be fixed by the court sufficient

to recompense those enjoined from any loss, expense or

damage caused by the improvident or erroneous issuance

of such order or injunction, including all reasonable

costs (together with a reasonable attorney’s fee) and

expense of defense against the order... .” (Appendix

D, p. 56).

The Court of Appeals erroneously interpreted this

language to mean that the court is to fix the amount of

“adequate security” but not the extent of the complain-

ant’s “undertaking”’. This construction of § 7 leaves the

plaintiff's liability completely open ended and is in di-

rect conflict with the Eighth Circuit’s decision in Don-

nelly that even under § 7 of the Norris-LaGuardia Act

the liability of the plaintiff is limited to the penal sum of

the injunction bond.

Properly read, the quoted language from § 7 means

that the complainant must file “an undertaking . . . in an

amount to be fixed by the court’, and the words “with

adequate security” are intended to modify the word

“undertaking”. So interpreted, the injunction bond is the

limit of the plaintiff's liability.

This construction is not only consistent with the

plain language of § 7 but is also supported by the legis-

lative history of the Act. Thus, Wisconsin Senator John

J. Blaine, one of the authors of the Act, in reporting on

the bill to the Senate on February 24, 1932, stated:

“.. Finally, before such an order may be issued the

* complainants must furnish a bond sufficient to in-

demnify the defendants against any loss and ex-

pense, including costs and attorneys fees, resulting

Reasons for Granting Writ.

from the issuance of the temporary restraining

order if it is not sustained after a hearing.” 72 Cong.

Rec. 4630 (1932) (Remarks of Senator Blaine).

There is not the slightest suggestion in the legisla-

tive history of § 7 of the Norris-LaGuardia Act that Con-

gress intended the plaintiff's liability on the “under-

taking” to be open ended. As dissenting Judge Kalodner

so aptly pointed out, the majority’s construction of £ 7

as permitting the respondents to recover in full their at-

torneys’ fees and expenses in the same proceedings in

which the injunction bonds were issued, even though

. they substantially exceed the aggregate amounts of the

posted injunction bonds, is nothing more than imper-

missible judicial legislation, which clearly transgresses

the procedural scheme of § 7.

Conclusion.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this petition for a writ of certiorari should

be granted.

NICHOLAS UNKOVIC

LEONARD L. SCHEINHOLTZ

HARLEY N. TRIcE II

REED SMITH SHAW & McCLay

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Counsel for Petitioners, United

States Steel Corporation, Jones

& Laughlin Steel Corporation and

Bethlehem Mines Corporation

CLYDE W. ARMSTRONG

RALPH T. DESTEFANO

THORP, REED & ARMSTRONG

2900 Grant Building

Pittsburgh, Pennsylvania 15219

Counsel for Petitioner, Republic

Steel Corporation

APPENDIX A

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action

UNITED STATES STEEL CORPORATION, Nos.

et al. L 70-724 .

v. [= "70-725

UNITED MINE WORKERS, et al. 70-727

70-728

Opinion

In these consolidated civil actions, the immediate

' matters before the Court are Motions for defendants for

an award of reasonable costs, expenses and attorney

fees. One group of attorneys have entered their ap-

pearances on behalf of the defendant Union, all of its

Districts and Locals, and all of the individual defend-

ants. The second group have entered their appearances

in Civil Action 70-724 on. behalf of Local 1248, in Civil

Action 70-725 on behalf of Local 762, in Civil Action 70-

727 on behalf of Local 762 and individual defendants

Monborne and Krawitz, and in Civil Action 70-728 on

behalf of defendant Trbovich. The defendants seek only

. thosé costs, expenses and attorney fees incurred in op-

possing plaintiffs’ requests for preliminary injunctions

in this Court on June 23, 24 and 25, 1970 and in appeal-

ing to the Circuit Court of Appeals from the Order of

this Court dated June 25, 1970, granting the preliminary

relief sought. !

1. By stipulation, the parties have agreed that

costs and expenses have been advanced by Mr. Engle in

Appendiz A.

The Court has conducted a hearing upon the Mo-

tions and considered the briefs and arguments of coun-

sel. It is concluded that the Motions should be denied.

The actions sought to invoke the Court’s jurisdic-

tion under § 301 of the Labor Management Relations

Act of 1947, as amended, 29 U.S.C. $185. Plaintiffs re-

quested preliminary injunctive relief compelling the

defendants to cease from engaging in a work stoppage

or picketing and to submit to the Settlement of Local

and District Disputes provision of the National Bitumi-

nous Coal Wage Agreement of 1968.

Consolidated evidentiary hearing were conducted, |

arguments heard and briefs submitted during all of

which time the aforementioned counsel represented the

defendants. The Court entered Orders granting the-plain-

tiffs’ prayers for preliminary injunctions against all of

the defendants named therein, and approved bonds in

the amount of one thousand dollars, each conditioned as

follows:

“NOW, the condition of this obligation is such,

that the plaintiff shall be liable to the defendants

for such costs and damages, not exceeding the sum

of $1,000.00, as defendants or any other person may

sustain by reason of the Preliminary Injunction, if

the Court finally decides that plaintiff is not en-

titled thereto.” .

Subsequent to the original decree, the Court en-

tered a modifying order so as to exclude from the terms

the amount of $730.94 and that reasonable attorney fees

for services rendered by Mr. Engle are $3,380.00; by Mr.

Owens, $1,120.00; by Mr. Joseph A. Yablonski, $3,580.00;

by Mrs. Feldman, $1,640.00, and by. Mr. Kenneth J. Ya-

blonski, $900.00.

Appendix A.

of the preliminary injunctions the cofendant Interna-

tional Union.

In granting the preliminary injunctions it was con-

cluded that the collective bargaining agreement pro-

vided a procedure, ultimately resulting in arbitration,

which the parties to the agreement contemplated would

be utilized to resolve a dispute of the nature in question.

Appeals from the Orders granting preliminary in-

junctions were perfected by all counsel for the defend-

ants and the Court of Appeals reversed and remanded.

In its Memorandum the Court stated:

“We therefore summarily reverse and remand these

cases to the district court without prejudice to a

request for a hearing de novo on the application for

a preliminary injunction. We emphasize that we

have not reached the issue of the merits of the re-

quest for a preliminary injunction.” (Emphasis

supplied. )

After remand, the plaintiffs requested a de novo

hearing upon the applications for preliminary injunc-

tions. The hearing was conducted and the parties stipu-

lated to an indefinite continuance of the hearing upon

conditions agreed to by the parties.

The question presented is whether the defendants

are entitled to costs, expenses and reasonable attorney

fees incurred in opposing the requests for preliminary

injunctions in this Court and in prosecuting their suc-

cessful appeals. |

The Order of the Court of Appeals prescribes that

each party is to bear its own costs. This determination

is dispositive of the question of costs on appeal and can-

Appendiz A.

_ not be reconsidered here. It is also proper to infer from

the aforementioned Order that each party is to bear his

or its own expenses and attorney fees incurred on ap-

peal. :

There remains for consideration defendant’s re-

quests for costs, expenses and attorney fees incurred by ;

the defendants in opposing the requests for prelimi-

nary injunctions in this Court. I conclude this request is

prematurely made. It is the generally followed federal

rule that there can be no recovery of damages caused by

a preliminary injunction even if set aside, unless final

judgment after trial is in favor of the party who has

been enjoined. Madison Shipping Corp. v. National Mari-

time Union, 204 F. Supp.-22, 23 (E. D. Pa. 1962) ; Meek-

er v. Stuart, 188 F. Supp. 272, 276 (D. D. C. 1960),

aff'd, 289 F. 902 (D. C. Cir. 1961), and cases cited

therein; 3 Barron & Holtzoff, Fed. Prac. & Proced.

§ 1435 (1958).

There has been no final determination of plaintiffs’

claims for injunctive relief. The Court of Appeals ex-

pressly reversed the trial court on procedural grounds

alone and did not reach or consider the merits of the

lower court’s decrees. Due to the agreement and stipu-

lation of counsel for the parties, the merits of plaintiff’s

requests have not been reached by this Court. In the

present posture of the case, the requests for both pre-

liminary and final injunctive relief remain pending be-

fore the Court. Absent any final determination upon the

merits of the requests for injunctive relief, defendants

are not entitled to recover. 2

This conclusion now made renders it unnecessary

for the Court to decide whether the terms of Section 7 of

ee |

Appendix A.

the Norris LaGuardia Act, 29 U.S. C. A. § 107, requir-

ing security for reasonable attorney’s fees and legal ex-

penses, must be read into a bond filed precedent to the

issuance of an injunction against concerted activity al-

leged to be in violation of a collective bargaining agree-

ment.

An appropriate Order is entered.

Order.

Now, this 30th day of September 1970, defendants’

Motions for costs, expenses and attorney fees are here-

by denied without prejudice to their right to re-submit

similar motions should the outcome of the proceedings

warrant the same.

/s/ WALLACE S. GOURLEY, SDJ,

Senior District Judge. |

Appendix B.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 19,454 through 19,458

UNITED STATES STEEL CORPORATION

UNITED MINE WORKERS OF AMERICA; DISTRICT

4, UNITED MINE WORKERS OF AMERICA; DIS-

TRICT 5, UNITED MINE WORKERS OF AMERI-

CA; UNITED MINE WORKERS OF AMERICA

LOCAL NO. 6321; UNITED MINE WORKERS OF

AMERICA LOCAL NO. 1248

UNITED MINE WORKERS OF AMERICA

Appellant in 19,454

DISTRICT 4, UNITED MINE WORKERS OF

AMERICA

Appellant in 19,455

DISTRICT 5, UNITED MINE WORKERS OF

AMERICA

Appellant in 19,456

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 6321

Appellant in 19,457

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 1248

Appellant in 19,458

Appendiz B.

Nos. 19,459 through 19,465

JONES & LAUGHLIN STEEL CORPORATION

UNITED MINE WORKERS OF AMERICA; DISTRICT

4, UNITED MINE WORKERS OF AMERICA; DIS-

TRICT 5, UNITED MINE WORKERS OF AMERI-

CA; UNITED MINE WORKERS OF AMERICA

LOCAL NO. 2399; UNITED MINE WORKERS OF

AMERICA LOCAL NO. 762; UNITED MINE

WORKERS OF AMERICA LOCAL NO. 6159:

UNITED MINE WORKERS OF AMERICA LOCAL

NO. 6330 .

UNITED MINE WORKERS OF AMERICA

. Appellant in 19,459

DISTRICT 4, UNITED MINE WORKERS OF

AMERICA

Appellant in 19,460

DISTRICT 5, UNITED MINE WORKERS OF

AMERICA

Appellant in 19,461

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 2399

Appellant in 19,462

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 762

Appellant in 19,463

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 6159

Appellant in 19,464

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 6330

Appellant in 19,465

Appendiz B.

Nos. 19,466 through 19,476

BETHLEHEM MINES CORPORATION

UNITED MINE WORKERS OF AMERICA; DISTRICT

2, UNITED MINE WORKERS OF AMERICA,

OWEN F. SLAGEL, President; UNITED MINE

WORKERS OF AMERICA LOCAL NO. 1386,

CHARLES KRAWETZ, President; UNITED MINE

WORKERS OF AMERICA LOCAL NO. 850, ED-

WARD F. MONBORNE, President; UNITED

MINE. WORKERS OF AMERICA LOCAL NO.

1368, THOMAS WATSON, President; UNITED

MINE WORKERS OF AMERICA LOCAL NO.

6394, JOSEPH T. MUCKO, JR. President;

UNITED MINE WORKERS OF AMERICA LOCAL

NO. 6411, ROBERT C. BROWN, President; DIS-

TRICT 5, UNITED MINE WORKERS OF AMERI-

CA, MICHAEL BUDZANOSKI, President;

UNITED MINE WORKERS OF AMERICA LOCAL

NO. 1190, CHARLES WASHLACK, President;

UNITED MINE WORKERS OF AMERICA LOCAL

NO. 2874, STANLEY C. WERSTLER, President;

UNITED MINE WORKERS OF AMERICA LOCAL

NO. 1197, JOHN A. DZIAK, President

UNITED MINE WORKERS OF AMERICA

Appellant in 19,466

DISTRICT 2, UNITED MINE WORKERS OF

AMERICA. OWEN F. SLAGEL, President,

Appellant in 19 467

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 1386, CHARLES KRAWETZ.

President. Appellant in 19,468

TTT

Appendiz B.

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 850, EDWARD F. MONBORNE,

President,

Appellant in 19,469

- UNITED MINE WORKERS OF AMERICA

LOCAL NO. 1368, THOMAS WATSON,

President,

Appellant in 19,470

UNITED MINE WORKERS OF AMERICA

‘ LOCAL NO. 6394, JOSEPH T. MUCKO, JR.

President,

Appellant in 19,471

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 6411, ROBERT C. BROWN,

President,

Appellant in 19,472

DISTRICT 5, UNITED MINE WORKERS OF

AMERICA, MICHAEL BUDZANOSKI,

President,

Appellant in 19,473

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 1190, CHARLES WASHLACK,

President,

Appellant in 19,474

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 2874, STANLEY C. WERST-

LER, President,

Appellant in 19,475

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 1197, JOHN A. DZIAK,

President,

Appellant in 19,476

Appendix B.

Nos. 19,477 through 19,481

REPUBLIC STEEL CORPORATION

UNITED MINE WORKERS OF AMERICA; DISTRICT

4, UNITED MINE WORKERS OF AMERICA; DIS-

TRICT 5, UNITED MINE WORKERS OF AMERI-

CA; UNITED MINE WORKERS OF AMERICA

LOCAL NO. 9873; UNITED MINE WORKERS OF

AMERICA LOCAL NO. 688

UNITED MINE WORKERS OF AMERICA

Appellant in 19,477

DISTRICT 4, UNITED MINE WORKERS OF

AMERICA

| Appellant in 19,478

DISTRICT 5, UNITED MINE WORKERS OF

AMERICA

Appellant in 19,479

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 9873

Appellant in 19,480

UNITED MINE WORKERS OF AMERICA

LOCAL NO. 688

Appellant in 19,481

APPEALS FROM THE UNITED STATES District COURT

FoR THE WESTERN DISTRICT OF PENNSYLVANIA

Argued December 1, 1971

Before Seitz, Chief Judge, KALODNER and GIBBONS,

Circuit Judges

Appendiz B.

Opinion of the Court |

(Filed February 3, 1972)

GIBBONS, Circuit Judge.

Appellants, labor unions and individual union mem-

bers, appeal from the order of the district court denying

their motion for costs, expenses, and attorney's fees.

United States Steel Corp. v. United Mine Workers of

America, 317 F. Supp. 1070 (W.D. Pa. 1970). The dispute

had its genesis in actions filed by the appellees, United

States Steel Corporation, Jones & Laughlin Steel Corpo-

ration, Bethlehem Mines Corporation and Republic Steel

Corporation seeking injunctions against work stoppages

which they alleged were in violation of union contracts

containing “Settlement of Local and District Disputes”

grievance-arbitration procedures. The steel companies

contended that by virtue of £301 of the Labor-Manage-

ment Relations Act of 1947, 29 U.S.C. £185 (1971), the

work stoppages should be enjoined pending resolution

of the underlying disputes through the contract griev-

ance arbitration procedures. After a two-day hearing

the district court entered an order in each case granting

a preliminary injunction. Each order contained the lan-

guage:

“Bond in the amount of $1,000.00 has been ap-

proved and filed with the Court by plaintiff.”

A separate bond, identical in form, was filed by each

plaintiff. The condition of the bond was in each case as

follows:

“WHEREAS, plaintiff has applied for a Prelimi-

nary Injunction against defendants, enjoining and

restraining them from the commission of certain

acts, as more particularly described in the Com-

Appendiz B.

plaint; NOW, the condition of this obligation is

such, that the plaintiff shall be liable to the de-

fendants for such costs and damages, not exceed-

ing the sum of $1,000.00, as defendants or any

other person may sustain by reason of the Prelimi-

nary Injunction, if the Court finally decides that

plaintiff is not entitled thereto.”

Neither the orders granting preliminary injunction nor

the bond in any case made reference to the authority

under which the court required that the bond be posted.

The record discloses no opportunity for the defendants

to examine the bond prior to its approval and filing.

The applications for preliminary injunctions were

strenuously opposed by the defendants who contended

that the work stoppage did not fall within the coverage

of the contract grievance-arbitration provisions. When

the orders were entered defendants promptly appealed.

On their motion we summarily reversed. Bethlehem

Mine Corporation v. United Mine Workers of America,

No. 19,040 (3rd Cir., filed July 2, 1970). That reversal

was on the ground that the district court because of an

erroneous view of the applicable law had effectively de-

nied the parties the opportunity to develop their respec-

tive positions in the abbreviated hearing which it con-

ducted. The preliminary injunction was, therefore, im-

providently granted. We remanded “without prejudice to

a request for a hearing de novo on the application for a

preliminary injunction.” The order on remand specified,

“Each side to bear its own costs.”

After remand the plaintiffs renewed their request

for a preliminary injunction and the district court set

the matter down for a de novo hearing commencing July

~ eae

Appendix B.

9, 1970. Instead of proceeding with the hearing, how-

ever, the parties with the approval of the district court

entered into a stipulation providing:

“At the hearing, counsel for the respective defend-

ants have represented to the Court that, to their

knowledge, no picketing, work stoppage or strike

exists at present and none is known to be antici-

pated in the immediate future. Also, counsel for the

respective parties have agreed to an indefinite con-

tinuance of the hearing upon the oral stipulation

that plaintiff, in good faith, will utilize its best ef-

forts to comply with the Federal Coal Mine Health

and Safety Act of 1969 and that-counsel for the re-

spective defendants, based upon the conditions in

the mines as they are known to exist at present, will

counsel the officers and membership of defendant-

unions to refrain from any work stoppage or picket-

ing at plaintiffs’ mines.

NOW, THEREFORE, this 10th day of July, 1970,

in accordance with the represenations and stipula-

tions of counsel, it is hereby Ordered that the hear-

ing upon plaintiffs’ application for preliminary in-

junction be continued until further notice by the

Court.”

The effect of this stipulation, although it purported to

continue the hearing on plaintiffs’ application for a pre-

liminary injunction, was to end the lawsut for all prac-

tical purposes. By then the work stoppages complained

of had ceased.

On August 14, 1970 the defendants moved for the

award of reasonable costs, expenses and atttorneys’

fees. This claim was based upon $7 of the Norris-La-

Guardia Act, 29 U.S.C. $107 (1971) which in relevant

part provides:

Appendix B.

“No temporary restraining order or temporary in-

junction shall be issued except on condition that

complainant shall first file an undertaking with

adequate security in an amount to be fixed by the

court sufficient to recompense those enjoined for

any loss, expense, or damage caused by the im-

provident or erroneous issuance of such order or

injunction, including all reasonable costs (together

with a reasonable attorney’s fee) and expense of

defense against the order or against the granting

of any injunctive relief sought in the same pro-

ceeding and subsequently denied by the court.

The undertaking mentioned in this section shall be

understood to signify an agreement entered into by

the complainant and the surety upon which a de-

cree may be rendered in the same suit or proceeding

against said complainant and surety, upon a hear-

ing to assess damages of which hearing complain-

ant and surety shall have reasonable notice, the

said complainant and surety submitting themselves

to the jurisdiction of the court for that purpose. But

nothing in this section contained shall deprive any

party having a claim or cause of action under or

upon such undertaking from electing to pursue his

ordinary remedy by suit at law or in equity.”

At the hearing on this motion the parties stipulated the

amount of expenses incurred and the reasonable value

of legal services rendered in opposing the preliminary

injunctions and in procuring their reversal by this

court.! The stipulated fees and expenses exceed $11,350.

1. The parties have agreed that Mr. Engle ad-

variced expenses of $730.94 and that a reasonable at-

Appendix B.

00. The four bonds total $4,000.00. The district court de-

nied the motion in its entirety “without prejudice to [de-

fendants’] right to re-submit similar motions should

the outcome of the proceedings warrant the same.” This

appeal followed.

The appellees moved before this court to dismiss

the appeal on the ground that it was interlocutory. An-

other panel denied that motion without opinion, ap-

parently on the ground that the order appealed from, al-

though in form interlocutory, was in practical effect

final on the issue here presented since no further pro-

ceedings would take place in the district court and was

therefore appealable under the “collateral order” doc-

trine. See Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541 (1949); Green v. Singer Co., No. 71-1835 (3rd

Cir., filed Nov. 2, 1971). Thus we must treat the appeal

as a final decision denying defendants’ motion for costs,

expenses and attorneys’ fees.

Since the reasonableness of the requested amounts

has been stipulated the only question before us is whe-

ther on legal grounds the district court properly refused

to make an award. Appellees advance several legal con-

tentions in support of that conclusion.

First, appellees contend that because they brought

suit under $301 of the Labor-Management Relations Act

the procedural provisions of ‘7 of the Norris-LaGuardia

Act are inapplicable. They urge that there is no warrant

in law outside $7 for the award of coursel fees incurred

in setting aside an injunction improvidently issued. As

torney’s fee for his services is $3,380.00; for Mr. Owens,

$1,120.00; for Mr. Joseph Yablonski, $3,580.00; for Mrs.

toe $1,640.00; and for Mr. Kenneth J. Yablonski,

900.00.

36 :

Appendix B.

— for the gene that $7 is e ap-

398 US. 235 (1970).

Appellees read far too much into the Boys Markets

opinion. In expressly overruling its earlier decision in

Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962),

and in approving the analysis of the Sinclair dissent,

the Supreme Court worked out a careful and narrow ac-

commodation between the earlier Norris-LaGuardia

Act and the later Labor-Management Relations Act. It

held only that the express prohibitions against certain

specific injunctions contained in $4 of Norris-LaGuardia,

29 U.S.C. £104, were deemed not to bar injunctions

necessary to accomplish the purposes of the Labor-Man-

agement Relations Act through contract arbitration.

The Court very carefully in Part V of the opinion, 398

U.S. at 253-55, made clear that it was dealing only with

the prohibition of $4 of Norris-LaGuardia, and then only

in cases where the court first holds that a strike is over

a grievance which both parties are contractually bound

to arbitrate. The opinion says nothing about the proce-

dural steps which must be taken in making that de-

termination or about the safeguards which must sur-

round the issuance of a preliminary injunction.

The thrust of $4 of the Norris-LaGuardia Act is

quite different from that of §7. The former is a list of

injunctive orders which the federal district courts are

flatly prohibited from entering. The latter is essentially

a procedural section. It prohibits the entry of an injunc-

tion growing out of a labor dispute

“except after hearing the testimony of witnesses

in open court (with opportunity for cross-examina-

tion) in support of the allegations of a complaint

Appendix B.

made under oath, and testimony in opposition

Tnereto, 1i offered .. .

~ Such hearing shall be held after due and personal

notice .. .” 29 U.S.C. § 107.

Certainly the requirements of a verified complaint, no-

tice and a hearing in opén court in no way conflict with

the policies of the Labor-Management Relations Act. In-

deed Feb. R. Civ. P. 65(a) requires as much in any event,

Sims v. Greene, 161 F.2d 87 (3rd Cir. 1947), though that

was not so when Norris-LaGuardia was passed since the

federal rules had not yet been enacted. It was the failure

to afford a hearing comporting either with $7 or with

Rule 65(a) which led to the summary reversal of the

preliminary injunction when this case was first before

- we

It may be argued that some of the specific findings

of fact required by §72 are inappropriate for a §301

2. “... 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 re-

Strained, but no injunction or temporary restrain-

ing order shall be issued on account of any threat

or unlawful act excepting against the person or per-

sons, association, or organization making the threat

or committing the unlawful act or actually author-

izing or ratifying the same after actual knowledge

thereof;

(b) That substantial and irreparable injury

to complainant’s property will follow:

greater injury will be inflicted upon complainant by

Sinclair dissent.* The finding “(t)hat the public officers

fendants by the granting of relief;

(d) That complainant has no adequate reme-

dy at law; and

i ie) That the public officers charged with the

ty to com t's property are unable

sa Centilne to denis chemise decal

29 U.S.C. £107.

3. PO ym yng we Bh yh 4

have that effect; and the should be

ordered to arbitrate, as a of his ob-

of equity — whether breaches . Se

and will continue, cr have been threatened

will be committed; whether they have caused

or will cause irreparable to the em-

ployer; and whether the will suffer