## *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 preliminar y injunc tion in favor of Kansas City Southern Transport Company, Inc

. (Transport), and the Kansas

## The Honorable Fernando J. Gaitan, Jr., United States District Judge for th e 1 

## Western District of Missouri.

-2- Ci ty Southern Railway Company (Railway) (together, “the plaintiffs” ) entere d in the United States District Court for the Western District o f 1 Mi ssouri enjoining the Union’s picketing activity at various Railwa y 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, “ord er” 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, bu t it subsequently modif ied its order, staying the arbitration provisions of the or iginal 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 ha d subject matter jurisdiction and, alternatively, that the injunctio n violates the Norris-L aGuardia 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 dis trict 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 relev ant facts are not in dispute and are taken in large par t fromthe 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 car s. Railway is a Missouri corporation engaged in the operat ion of an interstate railroad with operations in eleven states

. Transport and Railway were parties to a contract under which Transpor t operated the intermodal (piggyback) ramp and provided loading and unloadin g 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 sin gle employer for purposes of holding the enterprises jointly to a singl e bargaini ng obligation or for the purpose of considering liability for any unfair labo r practices.” Iowa Express Distrib., Inc. v. N LRB , 739 F.2d 130 5, 1310 (8th Cir.), cert. denied , 469 U.S. 1088 (1984).

-3- Transport's hourly paid employees who performed the ramping services at th e Kansas C ity, 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 provide s that all differences arising between Transport and the Union or an y 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 Transp ort of its decision to terminate the use of Transport's services at the Kansas City, Missouri, location

. Instead, Railway contracted with a non-union ent ity, In-Terminal Services, Inc., to perform those services. Once Railway t erminated its relationship with Transport, Transport did not have any work to perform at the Kansas City, Missouri, location. Accordingly, on May 31, 1996, Transport notifie d the Union that, due to Railway's decision to terminate Transport’s service s at th e Kansas City, Missouri, location, Transport would discontinu e ope rations in Kansas City. As a result, Transport terminated seventee n employees that were represented by the Union. 2

The Union subsequently filed an unfair labor practice charge wi th the National Labor Relati ons Board, alleging that Transport and Railway are a “single employer” and that 3

[s]ince on or about May 14, 1996, and continuin g there after, the Employer has failed and refused t o bar gain with Teamsters Local 41, affiliated wit h International Brotherhood of

## Th e Union contends that the employees were terminated in order to free th e 4 

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

-4- Teamsters, AFL-CIO, a labor organization, by, inte r alia , subcontracting all of the bargaining unit wor k to a n on-union firm in order to evade the obligations und er its collective bargaining agreement wit h Teamsters Local 41.

On or about May 29, 1996, the Employer terminated the employ ment of all 17 of the bargaining unit employees at its piggyback ramp operation in Kansas City , [Missouri,] because of their memb ership in, or support of, Teamsters Local 41.

On August 2, 1996, as a result of th e termination, the Union and the terminated Transport employees began picketing at nine Railway facilities in the Kansas City, Missouri, area to protest wh at the Union characterized

as unfair labor practices. Also on August 2, 1996, the plaintiff s 4 petiti oned the district court for injunctive relief against the Unio n asserting that the Union’s picketing violated the no-strike pledg e contained in the CBA and seeking declaratory judgment that Railway is not

a p arty to, or bound by, the CBA. Later that day, the district cour t issued a temporary restraining order against the Union. See order at 2. On August 9, 1996, the district court granted the plaintiffs' r equest for a preliminary injunction enjoining the Union and the Transpor t employees from their picketing activities and or dered that, as a condition of receiving the preliminary injunction, Railway enter into arbitratio n with th e Union regarding the labor dispute. Id. at 9-10. The distric t
cour t held that Railway failed to provide evidence in support of it s position that it is not a single employer with T ransport and, accordingly, ordered Railway to arbitrate the dispute with the Union pursuant to th e CBA. Id. at 6, 9-10. However, on August 19, 1996, pursuant to th e pla intiffs' motion to modify the order, the district court modified it s August 9, 1996, order and stayed the arbitration provisions of the origina l order pending an evidentiary hearing on the plaintiffs’ request

### -5-

for a permanent injunction, including the issue of single employer status. Modified o rder at 1. Transport offered to arbitrate the dispute, an d Railwayagrees to arbitrate the dispute if the district court finds that Transpor t and Railway are a single employer. However, rather tha n proceeding with the evidentiary hearing and subsequent arbitration wit h Transport and possibly Railway, the Union appealed the preliminar y injunction.

II. Discussion

It is ne cessary at the outset to clarify the relationships betwee n the parties and to set forth the Union’s seemingly inconsistent position on appeal. As noted earlier, the real dispute i n this case is between the Union and Railway. However, the only way that the Union can compel Railwa y to arbitrate the underlying dispute -- i.e. the termination of Transport’s employees -- is throu gh the CBA, to which Transport is the sole signatory employer. Thus, the Union, in order to enforce the CBA’s grievanc e arbitration clause ag ainst 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 preliminar y injunction.

“We revi ew an order granting a preliminary injunction for an abus e of dis cretion, 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 th e discretion of the district court).

### -6-

A. Subject Matter Jurisdiction

The Union argues that the district court lacked subject matte r jurisdiction in this case because the essential cause of action was brough t by a n employer (Railway) who has never been a party to the CBA and wh o cannot thereby claim any of the benefits or promises incorporated therein

-- in particular, the mandatory grievance-arbitration procedure and th e attend ant no-strike pledge. The Union claims that Railway consistentl y asserted to the district court that it was not bound to arbitrate under th e CBA. Therefore, contends the Union, Railway can not, on the one hand, seek protection from the CBA's no-strike clause and, on the other hand, deny an y obligation to arbitrate under the grievance-arbitration provision of the CBA.

The Union argues that, because Transport is the signatory employe r to the CBA and has since ceased all of its operations, Transport has n o
re al or substantive interest in the underlying dispute or in th e enforcement of the CB A. The Union therefore contends that Railway is the real party in interest because the picketing could not have affecte d Transport's already d efunct business. The Union maintains that, although Railway is the real party in interest, Railway is unable to enforce the no

strike pledge contained in the CBA because it is not a party to the CBA. While the Union admits that a federal court is n ot necessarily divested of jurisdiction under 29 U.S.C. § 185 based upon the fact that an employer ha s 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 disagr ee and hold that the district court had subject matte r jurisdiction over the plaintiffs’ petition for injunctive relief against the Union and request for declaratory relief regarding Railway's obligatio n 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 a n emp loyer and a labor organization representin g employees in an industry affectin g commerce as defined in t his chapter, or between any such labo r organizations, may be brought in any district court of the Un ited States having jurisdiction of the parties, wi thout respect to the amount in controversy o r without regard to the citizenship of the parties. "Whether or not a company is bound to arbitrate, as well as what issues it must arb itrate, is a matter to be determined by the court, and a part y
cann ot be forced to arbitrate the arbitrability issue." Litton Fin

. Printing Div. v. NLRB , 501 U.S. 190, 208 (1991) (citations omitted). The distri ct court’s jurisdiction under § 301 is determined by examinin g whether the major iss ues to be decided “can be characterized as primarily representational or primarily contractual.” Loc al 204, IBEW v. Iowa Elec. Light & Power Co. , 668 F.2d 413, 419 (8th Cir. 1 982). The single employer status issue is prima rily contractual and subject to the district court’s jurisdiction, while t he question of whether a non-signatory employer with sin gle employer status is bound by a collective bargaining agreement i s primarily representational and thereby outside the district court’ s jurisd iction. See Brotherhood of Teamsters, Local 70 v. Californi a 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 ca se, the Union argued to the district court that th e plaintiffs were a sin gle employer and that Railway was therefore bound by the grievance-arbitration provision in the CBA. Consequently, the distric t court ordered an evidentiary hearing on the issu e. The district court had subject matter jurisdiction to determine the sin gle 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 groun ds , 796 F.2d 234 (8th Cir.

### -8-

1986). Moreover, the Union is estopped from arg uing 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 allege d contractual responsibilities under the CBA -- specifically, the arbitratio n 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 cou rt of the United States shall have jurisdiction to issue any restraining order or temporary o r perman ent injunction in a case involving or growin g out of any labor dispute to prohibit any person o r person s participating or interested in such dispute .

. . from doing, whether singly or in concert, any o f the following acts: (a) Ceasing or refusing to perform any work or t o remain in any relation of employment;

. . . . (e) Giving publicity to the existence of, or the fac ts involved in, any labor dispute, whether b y adv ertising, speaking, patrolling, or by any othe r method not involving fraud or violence; (f) Assembling peaceably to act or to organize t o act in promotion of their interests in a labo r dispute;

. . . . (i) Advising, urging, or otherwise causing o r inducing without fraud or violenc e 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 recognize d the fo llowing narrow exception to the anti-injunction provisions of th e Norris-LaGuardia Act:

in order to accommodate the anti- injunction provisions of Norris-LaGuardia to the subsequently enacte d pr ovisions of § 301(a) [of the Labor Managemen t Relati ons Act] and the strong federal policy favoring arbitration, it was essential to recognize a n except ion to the anti-injunction provisions for cases in which the employer sought to enforce the union’ s contra ctual 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 (19 82), citing Boys Markets , 398 U.S. at 249-53. Under the Boys Markets exception,

[a] Di strict Court entertaining an action under § 301 [of the Labor Management Relations Act, 29 U.S.C. § 185,] may not grant injunctive relief agains t concer ted activity unless and until it decides tha t the case is one in which an injunction would b e approp riate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a gri evance which both parties are contractually boun d to arbitrate, the District Court may issue n o injunctive order until it first holds that th e con tract does have that effect; and the employe r shouldbe ordered to arbitrate, as a condition of his obtain ing an injunction against the strike. Beyon d this, the District Court must, of course, conside r whether the issuance of an injunction would b e warranted under the ordinary principles of equity -

- whether breaches are occurring and will continue, o r have b een threatened and will be committed; whethe r they have caused or will cause irreparable injury t o the e mployer; and whether the employer will suffe r 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 Cour t further refined the B oys Markets exception in Buffalo Forge Co. v. United Steelworkers of Am., AFL-CIO , 428 U.S. 397, 406 (1976), and held that it applie s only where the underlying dispute, that which precipitated th e strike , is subject to binding arbitration under the parties’ collectiv e bargaining agreement. The Union argues that neither Railway nor Transport satisfied th e strict limitations placed on injunctions issued pursuant to the Boy s Mar kets exception to the Norris-LaGuardia Act. The Union contends tha t "[a] cour t 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. " Tudo r 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 injunctio n because it was not a party to the collective bargaining agreement). The Union maintains that the district court erred in modifying its initia l order, which expressly conditioned the preliminary injunction upo n Railway's agreement t o 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 n o lon ger doing business. See Tudor , 634 F. Supp. at 303 (holding that , because plaintiff was not doing business, it could not suffer harm from th e union's conduct). The Union further contends th at the plaintiffs were not entitled to injunctiv e relief because of their unclean hands, as a single employer, in transferring the work to In-Termina l Services, Inc., in order to av oid their collective bargaining obligations with the Transpor t employees. The Union also argues that the injunction was improper because it was issued without strict conformity to the procedural requirements of th e Norris-LaGuardia Act, 29 U.S.C. § 101. The Unio n claims that the district court lacked the auth ority to issue the preliminary injunction because it failed to conduct an evidentiary hearing. See id.

## Th e labor contract is in effect between Transport and the Union because, i f 5 

## Tr ansport resumed operations, the CBA would govern the collective bargainin g relationship until it expires on March 31, 1998.

-11- § 107. Further, the Union maintains that the issuance of the injunction violated 2 9 U.S.C. § 108 because the plaintiffs failed to exhaust al l 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 tha t findings of fact be made and filed by the district court prior to th e issu ance of the injunction. The Union maintains that, because thes e proced ures were not followed, not only did the preliminary injunctio n violate the provision s of the Norris-LaGuardia Act, but also the district court lacked jurisdiction to enter the preliminary injunction.

We hold that the district court prop erly issued the injunction under the rationale of Boys Markets and Buffalo Forge because the disput e under lying the strike, Transport’s termination of its employees, i s arbitrable under the collective bargaining agreement. The prerequisites for a Boys Markets injunction are present in thi s case: (1) Transport and the Union are signatories to the CBA, which expires March 31, 1998, and ar e bound by the grievance arbitration clause contained therein ; (2) th e 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 Unio n and Transport, as well as Railway if it is foundto 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 th e injunction will inflict on other parties litigant; (3) the probability tha t
mo vant will succeed on the merits; and (4) the public interest. ” Dataphase , 640 F.2d a t 114. “In balancing the equities, no single factor is determ inative.” Id. at 113. The district court did not abuse it s 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, Railwa y employees that are members of the same union ma y indeedrefuse to work[,] thereby severely restricting Railw ay’s ability to carry out a modicum of busines s act ivities. Further, members of the public tha t dependon Railway’s services may be inconvenienced by the Union’s activities. As such, [the] [c]ourt i s persuaded that Railway is faced with the possibilit y of irreparable harm if injunctive relief is no t granted.
Simil arly, the balance of the harm weighs heavily i n favor of Railway. . . . The Union has filed at least two ch arges with the [National Labor Relations] Board
on behalf of these [seventeen terminated] employees

. By filing these charges with the Board, the Union i s as sured its constituents’ grievances will b e addres sed. In contrast, Railway runs the risk o f irrepa rable harm if the preliminary injunction is not gran ted. . . . While there is no way of predictin g how, o r to what extent, a continuation of the Union’s pic ket[ing] activity would affect Railway, it i s al most certain to have detrimental financia l ramifications.

Moreover, given the fact that the [CBA] specificall y prohi bits the very activity the Union is engaged in , and in light of the United States Supreme Court’ s stated preference for the resolut ion of labor disputes by ar bitration, . . . the [c]ourt finds that it i s likely that plaintiffs would succeed on the merits.

Fin ally, the [c]ourt is persuaded that it is in th e best interest of the public to issue the preliminar y inj unction. Railway is part of an industry that i s paramo unt to the success of this country’s interstate
commerce. If, as here, the facts do not warrant it , disruption of such a vital indust ry should be avoided.

Id. at 8-9 (citation omitted). Contrary to the Union’s argument, Transpor t could be

### -13-

irreparablyharmed if, in the future, it resumes its business operations in Kansas City, Misso uri, because the Union’s picket signs alleged unfair labor practices by Transport and Railway. Moreover, under the Union's vie w that Railway and Tran sport are a single employer, Railway would likely be irreparably harmed because of the disruption to its interstate rail servic e caused by its own uninvolved employees' refusal to cross the Union's picke t line. This likelihood, together with the existence of the other thre e Dataphase factors, is sufficient, without further proof of irreparable har m to Transport, to support the relief granted.

Fu rthermore, we disagree with the holding in Tudor because it i s contrary to federal l abor policy favoring arbitration as “a mechanism for the e xpeditious settlement of industrial disputes without resort t o 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, effectiv e relief.” Ferry-Morse Seed Co. v. Food Corn, Inc. , 729 F.2d 589, 593 (8th Cir. 1984) (issuing injunction to restore business activity). It i s 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, pen ding a final determination of whether the Union is bound to resolve the dispute by arbitration.

We hold t hat the district court’s order complies with Boys Markets

. The di strict court properly modified its original order issuing th e preliminaryinjunction and stayed the arbitration provisions "pending an eviden tiaryhearing on the permanent injunction (including the issue o f 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 Supre me Court set forth three rules governing a party’s duty t o arbitrate. First, “arbitration is a matter of c ontract 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 -- whet her 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 s ingle employer 6 

## status with T ransport and therefore is not a party to the CBA, Railway will no t 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 ag ainst the Union alleging that the Union’s activities constituted “secondary ” picketing in v iolation of 29 U.S.C. § 158(b)(4). See 29 U.S.C. § 187(b); see als o Bee lman Truck Co. v. Chauffeurs, Teamsters, Warehousemen and Helpers, Loca l Union No. 525 , 33 F.3d 886, 890 (7th Cir. 1994).
See Granny Goose Foods, Inc. v. Brotherhood of Team sters, Local No. 70 , 415 7 

## U.S. 423, 445 n.19 (1974) (declining to reach the question of whether a Boys Markets injunction must c omply with § 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107). But
com pare, e.g. , Tejidos De Coamo, Inc. v. ILGWU , 22 F.3d 8, 12-13 (1st Cir. 1994 ) (rel ying 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 invol ving affirmative enforcement of collective bargaining contracts in support of ar bitration), with Westmoreland Coal Co. v. International Union, United Min e Wor kers of Am. , 910 F.2d 130, 138 (4th Cir. 1990) (holding that “[s]ection 9 of th e 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 particula r 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

. Se e 398 U.S. at 249. The district court stayed, rather than deleted, th e original order’s arbitration provisions, and, thus, those provisions are merely hel d in abeyance. “The duty to arbitrate being of contractua l orig in, a compulsory submission to arbitration cannot precede judicia l determination that the collective bargaining agr eement does in fact create such a dut y.” AT&T Technologies , 475 U.S. at 649 (citation omitted)

. Therefore, the district court appropriately heldthe order to arbitrate in abeyance pending an evidentiary hearing to determine the single employer status issue and, con sequently, whether Railway is obligated to arbitrate under the CBA. See id. 6

We decline to decide whether the procedural provisions of the N orrisLaGuard ia 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, w hich prevents the district court’ s issuance of a preliminary injunction “except after hearing th e testim onyof witnesses in open court (with opportunity for cross

examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fa ct by the court.” In this case, the district court found, and th e Union does not contest on appeal, that the relev ant 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 i ssuance of an injunction in favor of a party who has not exhausted the available alternative dispute resolution mechanisms to avoid litigation, was satisfied because Transpor t offered to arbitrate the dispute and Railway a grees to submit to arbitration if the district court finds that it is obli gated 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

Th e district court did not abuse its discretion in enjoining th e 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 emp loyer status. Because of the threat of irreparable harm t o Railway if the Union is allowed to picket Railwa y’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.