*The Honorable Paul A. Magnuson, Chief Judge, United States District

Court for the District of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 96-3261

____________

Kansas City Southern Transport *

Company, Inc.; Kansas City *

Southern Railway Company, *

*

Appellees, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri

Teamsters Local Union #41; *

Affiliated with the International *

Brotherhood of Teamsters, *

*

Appellant. *

____________

Before McMILLIAN and HANSEN, Circuit Judges, and MAGNUSON,*

District Judge.

____________

 Submitted: March 10, 1997

 Filed: October 2, 1997

____________

McMILLIAN, Circuit Judge.

Teamsters Local No. 41 (the Union) appeals from a preliminary

injunction in favor of Kansas City Southern Transport Company, Inc.

(Transport), and the Kansas 
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

1

Western District of Missouri.

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City Southern Railway Company (Railway) (together, “the plaintiffs”)

entered in the United States District Court for the Western District of

1

Missouri enjoining the Union’s picketing activity at various Railway

facilities. Kansas City S. Transp. Co. v. Teamsters Local No. 41, No.

96-0823-CV-W-2 (W.D. Mo. Aug. 19, 1996) (hereinafter, “modified order”)

(modifying id. (Aug. 9, 1996) (hereinafter, “order” or “original order”)).

The district court initially issued a preliminary injunction against the

Union and ordered arbitration of the underlying dispute, order at 9-10, but

it subsequently modified its order, staying the arbitration provisions of

the original order pending an evidentiary hearing on the plaintiffs’

request for a permanent injunction. Modified order at 1. For reversal,

the Union argues that the district court erred in holding that it had

subject matter jurisdiction and, alternatively, that the injunction

violates the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115. For the reasons

discussed below, we affirm the order of the district court. 

Jurisdiction was asserted in the district court based upon 29 U.S.C.

§ 185(a). Jurisdiction on appeal is proper based upon 28 U.S.C. § 1292(a).

The notice of appeal was timely filed under Fed. R. App. P. 4(a).

I. Background

The relevant facts are not in dispute and are taken in large part

from the district court’s original order. Order at 1-3. Transport is a

Louisiana corporation engaged in the business of transporting freight to

and from railroad cars. Railway is a Missouri corporation engaged in the

operation of an interstate railroad with operations in eleven states.

Transport and Railway were parties to a contract under which Transport

operated the intermodal (piggyback) ramp and provided loading and unloading

services for Railway at Kansas City, Missouri, and other locations. The

Union represented 
Consequently, the real dispute is between the Union and Railway. 2

Under the single employer doctrine, two or more related enterprises are treated 3

“as a single employer for purposes of holding the enterprises jointly to a single

bargaining obligation or for the purpose of considering liability for any unfair labor

practices.” Iowa Express Distrib., Inc. v. N LRB, 739 F.2d 1305, 1310 (8th Cir.), cert.

denied, 469 U.S. 1088 (1984). 

-3-

Transport's hourly paid employees who performed the ramping services at the

Kansas City, Missouri, location. Transport and the Union signed a

collective bargaining agreement (the CBA) covering Transport's employees

from April 1, 1994, through March 31, 1998. Article 40 of the CBA provides

that all differences arising between Transport and the Union or any

employee are to be settled within the context of a grievance-arbitration

process. Railway is not a signatory to the CBA. 

In May 1996, Railway notified Transport of its decision to terminate

the use of Transport's services at the Kansas City, Missouri, location.

Instead, Railway contracted with a non-union entity, In-Terminal Services,

Inc., to perform those services. Once Railway terminated its relationship

with Transport, Transport did not have any work to perform at the Kansas

City, Missouri, location. Accordingly, on May 31, 1996, Transport notified

the Union that, due to Railway's decision to terminate Transport’s services

at the Kansas City, Missouri, location, Transport would discontinue

operations in Kansas City. As a result, Transport terminated seventeen

employees that were represented by the Union.2

The Union subsequently filed an unfair labor practice charge with the

National Labor Relations Board, alleging that Transport and Railway are a

“single employer” and that 3

[s]ince on or about May 14, 1996, and continuing

thereafter, the Employer has failed and refused to

bargain with Teamsters Local 41, affiliated with

International Brotherhood of 
The Union contends that the employees were terminated in order to free the

4

plaintiffs of a “no subcontracting” clause contained in the CBA.

-4-

Teamsters, AFL-CIO, a labor organization, by, inter

alia, subcontracting all of the bargaining unit work

to a non-union firm in order to evade the obligations

under its collective bargaining agreement with

Teamsters Local 41.

On or about May 29, 1996, the Employer terminated the

employment of all 17 of the bargaining unit employees

at its piggyback ramp operation in Kansas City,

[Missouri,] because of their membership in, or support

of, Teamsters Local 41. 

On August 2, 1996, as a result of the termination, the Union and the

terminated Transport employees began picketing at nine Railway facilities

in the Kansas City, Missouri, area to protest what the Union characterized

as unfair labor practices. Also on August 2, 1996, the plaintiffs

4

petitioned the district court for injunctive relief against the Union

asserting that the Union’s picketing violated the no-strike pledge

contained in the CBA and seeking declaratory judgment that Railway is not

a party to, or bound by, the CBA. Later that day, the district court

issued a temporary restraining order against the Union. See order at 2.

On August 9, 1996, the district court granted the plaintiffs' request

for a preliminary injunction enjoining the Union and the Transport

employees from their picketing activities and ordered that, as a condition

of receiving the preliminary injunction, Railway enter into arbitration

with the Union regarding the labor dispute. Id. at 9-10. The district

court held that Railway failed to provide evidence in support of its

position that it is not a single employer with Transport and, accordingly,

ordered Railway to arbitrate the dispute with the Union pursuant to the

CBA. Id. at 6, 9-10. However, on August 19, 1996, pursuant to the

plaintiffs' motion to modify the order, the district court modified its

August 9, 1996, order and stayed the arbitration provisions of the original

order pending an evidentiary hearing on the plaintiffs’ request 
-5-

for a permanent injunction, including the issue of single employer status.

Modified order at 1. Transport offered to arbitrate the dispute, and

Railway agrees to arbitrate the dispute if the district court finds that

Transport and Railway are a single employer. However, rather than

proceeding with the evidentiary hearing and subsequent arbitration with

Transport and possibly Railway, the Union appealed the preliminary

injunction.

II. Discussion

It is necessary at the outset to clarify the relationships between

the parties and to set forth the Union’s seemingly inconsistent position

on appeal. As noted earlier, the real dispute in this case is between the

Union and Railway. However, the only way that the Union can compel Railway

to arbitrate the underlying dispute -- i.e. the termination of Transport’s

employees -- is through the CBA, to which Transport is the sole signatory

employer. Thus, the Union, in order to enforce the CBA’s grievance

arbitration clause against Railway, argues that Railway and Transport are

a single employer and, therefore, both are bound by the CBA.

Alternatively, the Union argues that, if Railway is not bound by the CBA’s

grievance arbitration clause, then the Union is not bound by the CBA’s nostrike clause and, therefore, Railway is not entitled to a preliminary

injunction. 

“We review an order granting a preliminary injunction for an abuse

of discretion, clear legal error, and clearly erroneous fact findings.”

Hill v. Xyquad, Inc. 939 F.2d 627, 630 (8th Cir. 1991); see Dataphase Sys.,

Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 n.8 (8th Cir. 1981) (en banc)

(Dataphase) (noting that the grant of preliminary relief is within the

discretion of the district court).
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A. Subject Matter Jurisdiction

The Union argues that the district court lacked subject matter

jurisdiction in this case because the essential cause of action was brought

by an employer (Railway) who has never been a party to the CBA and who

cannot thereby claim any of the benefits or promises incorporated therein

-- in particular, the mandatory grievance-arbitration procedure and the

attendant no-strike pledge. The Union claims that Railway consistently

asserted to the district court that it was not bound to arbitrate under the

CBA. Therefore, contends the Union, Railway cannot, on the one hand, seek

protection from the CBA's no-strike clause and, on the other hand, deny any

obligation to arbitrate under the grievance-arbitration provision of the

CBA.

The Union argues that, because Transport is the signatory employer

to the CBA and has since ceased all of its operations, Transport has no

real or substantive interest in the underlying dispute or in the

enforcement of the CBA. The Union therefore contends that Railway is the

real party in interest because the picketing could not have affected

Transport's already defunct business. The Union maintains that, although

Railway is the real party in interest, Railway is unable to enforce the nostrike pledge contained in the CBA because it is not a party to the CBA.

While the Union admits that a federal court is not necessarily divested of

jurisdiction under 29 U.S.C. § 185 based upon the fact that an employer has

not signed the labor agreement, it argues that Railway lacks standing to

bring its claim because it denies being bound to the CBA, specifically, to

the obligation to arbitrate disputes under the CBA.

We disagree and hold that the district court had subject matter

jurisdiction over the plaintiffs’ petition for injunctive relief against

the Union and request for declaratory relief regarding Railway's obligation

to arbitrate. The district court’s jurisdiction was predicated on § 301(a)

of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a):
-7-

Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as defined

in this chapter, or between any such labor

organizations, may be brought in any district court of

the United States having jurisdiction of the parties,

without respect to the amount in controversy or

without regard to the citizenship of the parties.

"Whether or not a company is bound to arbitrate, as well as what issues it

must arbitrate, is a matter to be determined by the court, and a party

cannot be forced to arbitrate the arbitrability issue." Litton Fin.

Printing Div. v. NLRB, 501 U.S. 190, 208 (1991) (citations omitted). The

district court’s jurisdiction under § 301 is determined by examining

whether the major issues to be decided “can be characterized as primarily

representational or primarily contractual.” Local 204, IBEW v. Iowa Elec.

Light & Power Co., 668 F.2d 413, 419 (8th Cir. 1982). The single employer

status issue is primarily contractual and subject to the district court’s

jurisdiction, while the question of whether a non-signatory employer with

single employer status is bound by a collective bargaining agreement is

primarily representational and thereby outside the district court’s

jurisdiction. See Brotherhood of Teamsters, Local 70 v. California

Consolidators, Inc., 693 F.2d 81, 83-84 n.4 (9th Cir. 1982), cert. denied,

469 U.S. 887 (1984); see also Metropolitan Detroit Bricklayers Dist.

Council v. J.E. Hoetger & Co., 672 F.2d 580, 583 (6th Cir. 1982) (district

court had jurisdiction under § 301 of LMRA to decide whether party was a

“‘joint employer’ such that it could be bound by the collective bargaining

agreement”). 

In this case, the Union argued to the district court that the

plaintiffs were a single employer and that Railway was therefore bound by

the grievance-arbitration provision in the CBA. Consequently, the district

court ordered an evidentiary hearing on the issue. The district court had

subject matter jurisdiction to determine the single employer status issue.

See Crest Tankers, Inc. v. National Maritime Union of Am., 605 F. Supp.

1270, 1276 (E.D. Mo. 1985), rev'd on other grounds, 796 F.2d 234 (8th Cir.
-8-

1986). Moreover, the Union is estopped from arguing that Transport has no

real interest in the underlying dispute or in the enforcement of the CBA

because of its own assertion that the CBA is in effect and that the alleged

contractual responsibilities under the CBA -- specifically, the arbitration

provisions -- should be enforced. Accordingly, we hold that the district

court properly exercised subject matter jurisdiction.

B. The Norris-LaGuardia Act

The Union alternatively argues that, even if the district court’s

jurisdiction was proper, the preliminary injunction violated the NorrisLaGuardia Act.

No 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 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:

(a) Ceasing or refusing to perform any work or to

remain in any relation of employment;

. . . .

(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 interests in a labor

dispute;

. . . . 

(i) Advising, urging, or otherwise causing or

inducing without fraud or violence the acts heretofore

specified.
-9-

29 U.S.C. § 104. However, in Boys Markets, Inc. v. Retail Clerks Union,

Local 770, 398 U.S. 235 (1970) (Boys Markets), the Supreme Court recognized

the following narrow exception to the anti-injunction provisions of the

Norris-LaGuardia Act: 

in order to accommodate the anti-injunction provisions

of Norris-LaGuardia to the subsequently enacted

provisions of § 301(a) [of the Labor Management

Relations Act] and the strong federal policy favoring

arbitration, it was essential to recognize an

exception to the anti-injunction provisions for cases

in which the employer sought to enforce the union’s

contractual obligation to arbitrate grievances rather

than to strike over them. 

Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n,

457 U.S. 702, 708 (1982), citing Boys Markets, 398 U.S. at 249-53. Under

the Boys Markets exception, 

[a] District Court entertaining an action under § 301

[of the Labor Management Relations Act, 29 U.S.C. §

185,] may not grant injunctive relief against

concerted activity unless and until it decides that

the case is one in which an injunction would be

appropriate despite the Norris-LaGuardia Act. When a

strike is sought to be enjoined because it is over a

grievance which both parties are contractually bound

to arbitrate, the District Court may issue no

injunctive order until it first holds that the

contract does have that effect; and the employer

should be ordered to arbitrate, as a condition of his

obtaining an injunction against the strike. Beyond

this, the District Court must, of course, consider

whether the issuance of an injunction would be

warranted under the ordinary principles of equity --

whether breaches are occurring and will continue, or

have been threatened and will be committed; whether

they have caused or will cause irreparable injury to

the employer; and whether the employer will suffer

more from the denial of an injunction than 
-10-

will the union from its issuance. 

Boys Markets, 398 U.S. at 254 (citation omitted). The Supreme Court

further refined the Boys Markets exception in Buffalo Forge Co. v. United

Steelworkers of Am., AFL-CIO, 428 U.S. 397, 406 (1976), and held that it

applies only where the underlying dispute, that which precipitated the

strike, is subject to binding arbitration under the parties’ collective

bargaining agreement. 

The Union argues that neither Railway nor Transport satisfied the

strict limitations placed on injunctions issued pursuant to the Boys

Markets exception to the Norris-LaGuardia Act. The Union contends that

"[a] court should not enforce a no-strike clause at the behest of a

putative alter-ego or affiliate until the court finds that the alter-ego

is in fact bound by the agreement containing the no-strike provision."

Tudor Fashions Ltd. v. Romney, 634 F. Supp. 297, 302 (S.D.N.Y. 1986)

(Tudor) (holding that employer was not entitled to a Boys Market injunction

because it was not a party to the collective bargaining agreement). The

Union maintains that the district court erred in modifying its initial

order, which expressly conditioned the preliminary injunction upon

Railway's agreement to arbitrate the dispute. The Union also claims that

the injunction violated the Boys Markets requirement that the plaintiffs

show irreparable harm caused by the picketing because Transport was no

longer doing business. See Tudor, 634 F. Supp. at 303 (holding that,

because plaintiff was not doing business, it could not suffer harm from the

union's conduct). The Union further contends that the plaintiffs were not

entitled to injunctive relief because of their unclean hands, as a single

employer, in transferring the work to In-Terminal Services, Inc., in order

to avoid their collective bargaining obligations with the Transport

employees. 

The Union also argues that the injunction was improper because it was

issued without strict conformity to the procedural requirements of the

Norris-LaGuardia Act, 29 U.S.C. § 101. The Union claims that the district

court lacked the authority to issue the preliminary injunction because it

failed to conduct an evidentiary hearing. See id.
The labor contract is in effect between Transport and the Union because, if

5

Transport resumed operations, the CBA would govern the collective bargaining

relationship until it expires on March 31, 1998.

-11-

§ 107. Further, the Union maintains that the issuance of the injunction

violated 29 U.S.C. § 108 because the plaintiffs failed to exhaust all

alternative dispute resolution mechanisms when Railway refused to submit

to immediate arbitration. Finally, the Union claims that the injunction

was improper for failing to satisfy the requirement of 29 U.S.C. § 109 that

findings of fact be made and filed by the district court prior to the

issuance of the injunction. The Union maintains that, because these

procedures were not followed, not only did the preliminary injunction

violate the provisions of the Norris-LaGuardia Act, but also the district

court lacked jurisdiction to enter the preliminary injunction.

We hold that the district court properly issued the injunction under

the rationale of Boys Markets and Buffalo Forge because the dispute

underlying the strike, Transport’s termination of its employees, is

arbitrable under the collective bargaining agreement. The prerequisites

for a Boys Markets injunction are present in this case: (1) Transport and

the Union are signatories to the CBA, which expires March 31, 1998, and are

bound by the grievance arbitration clause contained therein ; (2) the

5

issuance of the injunction was properly conditioned on the district court’s

order for the parties to the CBA to arbitrate, an order governing the Union

and Transport, as well as Railway if it is found to be a party to the CBA;

and (3) injunctive relief is warranted under ordinary principles of equity.

See Boys Markets, 398 U.S. at 254. Under ordinary principles of equity,

this court considers: “(1) the threat of irreparable harm to the movant;

(2) the state of balance between this harm and the injury that granting the

injunction will inflict on other parties litigant; (3) the probability that

movant will succeed on the merits; and (4) the public interest.”

Dataphase, 640 F.2d at 114. “In balancing the equities, no single factor

is determinative.” Id. at 113. The district court did not abuse its

discretion in concluding, based upon the following reasoning, that 
-12-

“these factors weigh heavily in favor of Railway.” Order at 8. 

If the Union resumes its picketing activity, Railway

employees that are members of the same union may

indeed refuse to work[,] thereby severely restricting

Railway’s ability to carry out a modicum of business

activities. Further, members of the public that

depend on Railway’s services may be inconvenienced by

the Union’s activities. As such, [the] [c]ourt is

persuaded that Railway is faced with the possibility

of irreparable harm if injunctive relief is not

granted.

Similarly, the balance of the harm weighs heavily in

favor of Railway. . . . The Union has filed at least

two charges with the [National Labor Relations] Board

on behalf of these [seventeen terminated] employees.

By filing these charges with the Board, the Union is

assured its constituents’ grievances will be

addressed. In contrast, Railway runs the risk of

irreparable harm if the preliminary injunction is not

granted. . . . While there is no way of predicting

how, or to what extent, a continuation of the Union’s

picket[ing] activity would affect Railway, it is

almost certain to have detrimental financial

ramifications. 

Moreover, given the fact that the [CBA] specifically

prohibits the very activity the Union is engaged in,

and in light of the United States Supreme Court’s

stated preference for the resolution of labor disputes

by arbitration, . . . the [c]ourt finds that it is

likely that plaintiffs would succeed on the merits.

Finally, the [c]ourt is persuaded that it is in the

best interest of the public to issue the preliminary

injunction. Railway is part of an industry that is

paramount to the success of this country’s interstate

commerce. If, as here, the facts do not warrant it,

disruption of such a vital industry should be avoided.

Id. at 8-9 (citation omitted). Contrary to the Union’s argument, Transport

could be 
-13-

irreparably harmed if, in the future, it resumes its business operations

in Kansas City, Missouri, because the Union’s picket signs alleged unfair

labor practices by Transport and Railway. Moreover, under the Union's view

that Railway and Transport are a single employer, Railway would likely be

irreparably harmed because of the disruption to its interstate rail service

caused by its own uninvolved employees' refusal to cross the Union's picket

line. This likelihood, together with the existence of the other three

Dataphase factors, is sufficient, without further proof of irreparable harm

to Transport, to support the relief granted. 

Furthermore, we disagree with the holding in Tudor because it is

contrary to federal labor policy favoring arbitration as “a mechanism for

the expeditious settlement of industrial disputes without resort to

strikes, lockouts, or other self-help measures.” Boys Markets, 398 U.S.

at 249. “The primary function of a preliminary injunction is to preserve

the status quo until, upon final hearing, a court may grant full, effective

relief.” Ferry-Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th

Cir. 1984) (issuing injunction to restore business activity). It is

therefore consistent with federal labor policy to preserve the status quo

by enjoining the Union’s picketing over the termination of the Transport

employees, which may be an arbitrable issue, pending a final determination

of whether the Union is bound to resolve the dispute by arbitration. 

We hold that the district court’s order complies with Boys Markets.

The district court properly modified its original order issuing the

preliminary injunction and stayed the arbitration provisions "pending an

evidentiary hearing on the permanent injunction (including the issue of

single employer status)." Modified order at 1. In AT&T Technologies, Inc.

v. Communications Workers of Am., 475 U.S. 643 (1986) (AT&T Technologies),

the Supreme Court set forth three rules governing a party’s duty to

arbitrate. First, “arbitration is a matter of contract and a party cannot

be required to submit to arbitration any dispute which he has not agreed

so to submit.” Id. at 648 (citation omitted). Second, “the question of

arbitrability -- whether a collective bargaining agreement creates a duty

for the parties to arbitrate the particular grievance 
If the district court should conclude that Railway does not share single employer 6

status with Transport and therefore is not a party to the CBA, Railway will not

obligated to arbitrate the underlying dispute. We leave to the district court the question

of whether, in that case, Transport alone is entitled to a Boys Market injunction.

However, we note that, in such a case, Railway would likely have a damages cause of

action against the Union alleging that the Union’s activities constituted “secondary”

picketing in violation of 29 U.S.C. § 158(b)(4). See 29 U.S.C. § 187(b); see also

Beelman Truck Co. v. Chauffeurs, Teamsters, Warehousemen and Helpers, Local

Union No. 525, 33 F.3d 886, 890 (7th Cir. 1994). 

See Granny Goose Foods, Inc. v. Brotherhood of Teamsters, Local No. 70, 415 7

U.S. 423, 445 n.19 (1974) (declining to reach the question of whether a Boys Markets

injunction must comply with § 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107). But

compare, e.g., Tejidos De Coamo, Inc. v. ILGWU, 22 F.3d 8, 12-13 (1st Cir. 1994)

(relying upon Textile Workers Union of Am. v. Lincoln Mills of Alabama, 353 U.S.

448 (1957), and Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235 (1970), for

the proposition that § 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107, does not govern

a case involving affirmative enforcement of collective bargaining contracts in support

of arbitration), with Westmoreland Coal Co. v. International Union, United Mine

Workers of Am., 910 F.2d 130, 138 (4th Cir. 1990) (holding that “[s]ection 9 of the

Norris-LaGuardia Act, [29 U.S.C. § 109,] which must be accommodated with section

-14-

-- is undeniably an issue for judicial determination.” Id. at 649. Third,

“in deciding whether the parties have agreed to submit a particular

grievance to arbitration, a court is not to rule on the potential merits

of the underlying claims.” Id. In the present case, the modified order

fully complies with the national labor policy underlying Boys Markets. See

398 U.S. at 249. The district court stayed, rather than deleted, the

original order’s arbitration provisions, and, thus, those provisions are

merely held in abeyance. “The duty to arbitrate being of contractual

origin, a compulsory submission to arbitration cannot precede judicial

determination that the collective bargaining agreement does in fact create

such a duty.” AT&T Technologies, 475 U.S. at 649 (citation omitted).

Therefore, the district court appropriately held the order to arbitrate in

abeyance pending an evidentiary hearing to determine the single employer

status issue and, consequently, whether Railway is obligated to arbitrate

under the CBA. See id.6

We decline to decide whether the procedural provisions of the NorrisLaGuardia Act, 29 U.S.C. §§ 107-109, apply to Boys Markets injunctions.7
301 of the National Labor Relations Act, applies to Boys Markets actions”). 

-15-

In any event, the 
-16-

procedural requirements were satisfied in this case. The district court

satisfied the requirements of 29 U.S.C. § 107, which prevents the district

court’s issuance of a preliminary injunction “except after hearing the

testimony of witnesses in open court (with opportunity for crossexamination) in support of the allegations of a complaint made under oath,

and testimony in opposition thereto, if offered, and except after findings

of fact by the court.” In this case, the district court found, and the

Union does not contest on appeal, that the relevant facts in this case are

undisputed. See order at 1. Thus, we hold that an evidentiary hearing on

the undisputed facts was unnecessary. The requirements of 29 U.S.C. § 108,

which precludes the issuance of an injunction in favor of a party who has

not exhausted the available alternative dispute resolution mechanisms to

avoid litigation, was satisfied because Transport offered to arbitrate the

dispute and Railway agrees to submit to arbitration if the district court

finds that it is obligated to do so. With regard to the factual findings

required under 29 U.S.C. § 109, the material facts were undisputed,

negating the necessity for any further findings.

III. Conclusion

The district court did not abuse its discretion in enjoining the

picketing while staying the order to arbitrate because Railway agrees to

arbitrate the dispute, as required by Boys Markets, if the district court

finds such an obligation to exist based on Railway and Transport sharing

single employer status. Because of the threat of irreparable harm to

Railway if the Union is allowed to picket Railway’s facilities and Railway

is ultimately found not to share single employer status with Transport, it

is appropriate to preserve the status quo pending final determination of

the single 
-17-

employer status issue. Accordingly, we affirm the order of the district

court. 

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.