Rochester Telephone Corporation v. Communications Workers of America, Afl-Cio

Second Circuit

Rochester Telephone Corporation v. Communications Workers of America, Afl-Cio

456 F.2d 1057, 79 L.R.R.M. (BNA) 2770, 1972 U.S. App. LEXIS 10941

CourtCourt of Appeals for the Second Circuit

DecidedMarch 3, 1972

Docket538, Docket 71-1981

StatusPublished

Cited by5 cases

This text of 456 F.2d 1057 (Rochester Telephone Corporation v. Communications Workers of America, Afl-Cio) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rochester Telephone Corporation v. Communications Workers of America, Afl-Cio, 456 F.2d 1057, 79 L.R.R.M. (BNA) 2770, 1972 U.S. App. LEXIS 10941 (2d Cir. 1972).

Pincite

Opinion

PER CURIAM:

The court below, after denying a preliminary injunction to enjoin a strike sought by appellee on Boys Markets grounds [Boys Markets, Inc. v. Local 770, Retail Clerks, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970)], enjoined appellant union and unidentified members from intentionally cutting telephone cables and destroying company property. This was done on the court’s own motion and perhaps without requiring the posting of an injunction bond. 1 This injunction was plainly issued erroneously, not only because there was no evidence connecting the union or its members with the cable cutting, United Mine Workers of America v. Gibbs, 383 U.S. 715, 738-739, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); 29 U.S.C. §§ 106, 107(a), but also because there was no allegation, proof or finding that “. . . the public officers charged with the duty to protect [the company’s] property are unable or unwilling to furnish adequate protection.” 29 U.S.C. § 107(e).

Appellee concedes that the injunction was issued improvidently, but argues that the appeal is moot, and has moved to dismiss the appeal, because the strike which gave rise to the injunction ended on September 8, 1971, a new contract has subsequently been ratified and there have been no further incidents of cable cutting or the like. The injunction is still outstanding, however, and even if the only issue related to appellants’ right to damages from its issuance, the case would not be moot. Liner v. Jafco, Inc., 375 U.S. 301, 305-306, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964).

We therefore reverse, vacate the injunction and remand for further determination of the issues (1) whether ap-pellee is responsible to appellants for reasonable expenses and attorneys’ fees (29 U.S.C. § 107) in connection with the erroneous issuance of such injunction; (2) if so, to how much appellants are entitled; and (3) whether any surety is legally responsible on any injunction bond covering this injunction.

Judgment for appellants in accordance with the opinion.

1

. Appellee apparently attached a surety bond to its application for injunctive relief, but so far as here appears there is no indication that this bond was filed in respect to the injunction actually issued.

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PER CURIAM:

The court below, after denying a preliminary injunction to enjoin a strike sought by appellee on Boys Markets grounds [Boys Markets, Inc. v. Local 770, Retail Clerks, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970)], enjoined appellant union and unidentified members from intentionally cutting telephone cables and destroying company property. This was done on the court’s own motion and perhaps without requiring the posting of an injunction bond. 1 This injunction was plainly issued erroneously, not only because there was no evidence connecting the union or its members with the cable cutting, United Mine Workers of America v. Gibbs, 383 U.S. 715, 738-739, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); 29 U.S.C. §§ 106, 107(a), but also because there was no allegation, proof or finding that “. . . the public officers charged with the duty to protect [the company’s] property are unable or unwilling to furnish adequate protection.” 29 U.S.C. § 107(e).

Appellee concedes that the injunction was issued improvidently, but argues that the appeal is moot, and has moved to dismiss the appeal, because the strike which gave rise to the injunction ended on September 8, 1971, a new contract has subsequently been ratified and there have been no further incidents of cable cutting or the like. The injunction is still outstanding, however, and even if the only issue related to appellants’ right to damages from its issuance, the case would not be moot. Liner v. Jafco, Inc., 375 U.S. 301, 305-306, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964).

We therefore reverse, vacate the injunction and remand for further determination of the issues (1) whether ap-pellee is responsible to appellants for reasonable expenses and attorneys’ fees (29 U.S.C. § 107) in connection with the erroneous issuance of such injunction; (2) if so, to how much appellants are entitled; and (3) whether any surety is legally responsible on any injunction bond covering this injunction.

Judgment for appellants in accordance with the opinion.

1

. Appellee apparently attached a surety bond to its application for injunctive relief, but so far as here appears there is no indication that this bond was filed in respect to the injunction actually issued.

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456 F.2d 1057, 79 L.R.R.M. (BNA) 2770, 1972 U.S. App. LEXIS 10941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rochester-telephone-corporation-v-communications-workers-of-america-ca2-1972.

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