DAVIS, Circuit Judge.
This case is here on petition for the allowance of a supersedeas from a decree granting an ad interim restraining order by the District Court on June 8, 1938.
The question upon which the decision in this case depends is whether or not there was a “labor dispute” to which the plaintiffs were a party.
This is a suit in equity brought under section 1 of the Act of July 2, 1890 (15 U.S.C.A. § 1) and section 16 of the Act of October 15, 1914 (15 U.S.C.A. § 26) respectively called the Sherman Anti-Trust Act and the Clayton Act. Plaintiffs say that jurisdiction is also conferred upon this court by the Acts of March 23, 1932 (29 U.S.C.A. §§ 101 and 107) and July 5, 1935 (29 U.S.C.A. § 151 et seq.), known as the Norris-LaGuardia Act and the Wagner Act.
The amount involved in these proceedings exceeds $3,000 exclusive of interest and costs. The capital invested in plaintiffs’ business exceeds $2,000,000 and the amount of business done annually approximates $20,000,000.
Three corporations constitute the plaintiffs in the case. The Union Premier Food Stores, Inc., is a corporation organized .and existing under the laws of Pennsylvania and the other two corporations, the Food Fair, Inc., of Pennsylvania, and The Food Fair, Inc., of New Jersey, are wholly owned subsidiaries of the Premier Company. All three corporations have their principal place of business at 58th Street and Grays Avenue, in the City of Philadelphia. These corporations are separate and distinct, but are component and interdependent units of a single enterprise engaged in the business of owning and operating retail food stores of the type known as “super markets” in Pennsylvania, New-Jersey and Maryland.
There are four union defendants, all affiliated with the American Federation of Labor, arid a number of individual defendants who are members and officers of the union defendants.
The plaintiffs are now and for many years have been engaged in buying, selling and shipping merchandise ,in interstate commerce. They operate two warehouses, one located in Philadelphia and the other in Baltimore, and twenty-seven stores, located in New Jersey, Pennsylvania and Maryland. Approximately ninety per cent, of the merchandise used or handled by the plaintiffs’ warehouses comes from points outside of Pennsylvania and Maryland, and about sixty per cent, of this merchandise is in turn shipped to stores outside the states in which the warehouses are located. They have working for them fifteen hundred or more employees who have no union of their own and are not members of any union. None of the employees are permanently at[823]*823tached to any particular store or corporation. They are or may be shifted from store to store or from corporation to corporation. So there is no question about the interstate character of the business; nor of the requisite sum involved.
For quite a while during the early part of this year the defendant unions tried to induce the plaintiffs’ employees to join their unions, but they, of their own accord and without any influence or interference whatever on the part of the plaintiffs, refused to join. However, the defendants notified plaintiffs that they represented a majority of their employees.
Upon the refusal of plaintiffs’ employees to join defendant unions, defendants placed professional, hired pickets (none of whom had in any way been connected with the plaintiffs) around their stores and warehouses, carrying signs which falsely stated that plaintiffs were unfair to organized labor and that their employees were on strike. The pickets, by surrounding plaintiffs’ stores and warehouses, prevented customers from entering them,' prevented trucks from loading and unloading, from taking merchandise to and from their stores and warehouses and from receiving merchandise for plaintiffs or from delivering merchandise to them.
The United Retail and Wholesale Employees of America, hereinafter called United, affiliated with the Committee for Industrial Organization (hereinafter referred to as the -C. I. O.), observed what was going on and notified plaintiffs that it represented more than a majority of their employees and that under the provisions of the Wagner Act, it was entitled to represent their employees as their sole bargaining agent and that any agreement which they entered into with any other union would be illegal, void and punishable under the provisions of that Act. The situation was that both the affiliates of the American Federation of Labor on the one side and United, affiliated with the C. I. O., on the other side, claimed the right to represent plaintiffs’ employees as their sole, collective bargaining agent. Thereúpon plaintiffs suggested to both the defendants and United that they try to organize and unionize their employees in any way that they could; that both sides would have entire freedom to distribute literature to them, talk to and persuade them; that at the end of a campaign period of four days in which to organize and unionize them, an election be held to select their bargaining agents and plaintiffs would sign a contract with whichever union obtained a majority of the votes at the election. United agreed, but the defendants, although claiming to represent a majority of the employees, refused and declared that they would not withdraw their picket line unless and until plaintiffs entered into a “union agreement” with them. Plaintiffs thereupon, in order to stop the picketing, which was destroying their business, agreed to enter into a contract with the defendants and began negotiations accordingly. The pickets were thereupon withdrawn.
United vigorously protested against the proposed agreement with the defendants and filed a complaint on April 8, 1938, against plaintiffs with the National Labor Relations Board, hereinafter called the Board, charging them with unfair labor practices as defined in subsections. (1) (2) (3) and (5) of section 8 of the Wagner Act, 29 U.S.C.A. § 158(1-3,5).
The Board notified the plaintiffs of these charges and asked if they cared to make a statement of their “side of the matter”.
A preliminary hearing was held on April 19, 1938, at the office of the Board, 1432 Bankers Securities Building, Philadelphia, Pennsylvania. At that hearing Leo Fee, Esq., a hearer for the Board, suggested that the defendant unions, United and the plaintiffs agree that an election be held to determine which of the unions was entitled to represent plaintiffs’ employees for the purpose of collective bargaining which was really the only question at issue. This suggestion was accepted by the plaintiffs and United but was rejected by the defendant unions. Both sides, the defendant unions and United, claiming as members a majority of plaintiffs’ employees, asserted the right to be their sole collective bargaining representative. This question had to be determined by the Board and could not be determined, under the facts in this case, by the plaintiffs. They said then, a$ they have declared over and over again ever since, that they were willing to enter into a “union agreement” in accordance with the provisions of the Act with either union, whichever was entitled to represent their employees; that all they wanted to know was with which union or unions they could legally enter into a contract as legal rep[824]*824resentative for the purpose of collective bargaining in accordance with the provisions of the Act.
The plaintiffs then, May 12, 1938, received the following communication from the Board:
“National Labor Relations Board
Free access — add to your briefcase to read the full text and ask questions with AI
DAVIS, Circuit Judge.
This case is here on petition for the allowance of a supersedeas from a decree granting an ad interim restraining order by the District Court on June 8, 1938.
The question upon which the decision in this case depends is whether or not there was a “labor dispute” to which the plaintiffs were a party.
This is a suit in equity brought under section 1 of the Act of July 2, 1890 (15 U.S.C.A. § 1) and section 16 of the Act of October 15, 1914 (15 U.S.C.A. § 26) respectively called the Sherman Anti-Trust Act and the Clayton Act. Plaintiffs say that jurisdiction is also conferred upon this court by the Acts of March 23, 1932 (29 U.S.C.A. §§ 101 and 107) and July 5, 1935 (29 U.S.C.A. § 151 et seq.), known as the Norris-LaGuardia Act and the Wagner Act.
The amount involved in these proceedings exceeds $3,000 exclusive of interest and costs. The capital invested in plaintiffs’ business exceeds $2,000,000 and the amount of business done annually approximates $20,000,000.
Three corporations constitute the plaintiffs in the case. The Union Premier Food Stores, Inc., is a corporation organized .and existing under the laws of Pennsylvania and the other two corporations, the Food Fair, Inc., of Pennsylvania, and The Food Fair, Inc., of New Jersey, are wholly owned subsidiaries of the Premier Company. All three corporations have their principal place of business at 58th Street and Grays Avenue, in the City of Philadelphia. These corporations are separate and distinct, but are component and interdependent units of a single enterprise engaged in the business of owning and operating retail food stores of the type known as “super markets” in Pennsylvania, New-Jersey and Maryland.
There are four union defendants, all affiliated with the American Federation of Labor, arid a number of individual defendants who are members and officers of the union defendants.
The plaintiffs are now and for many years have been engaged in buying, selling and shipping merchandise ,in interstate commerce. They operate two warehouses, one located in Philadelphia and the other in Baltimore, and twenty-seven stores, located in New Jersey, Pennsylvania and Maryland. Approximately ninety per cent, of the merchandise used or handled by the plaintiffs’ warehouses comes from points outside of Pennsylvania and Maryland, and about sixty per cent, of this merchandise is in turn shipped to stores outside the states in which the warehouses are located. They have working for them fifteen hundred or more employees who have no union of their own and are not members of any union. None of the employees are permanently at[823]*823tached to any particular store or corporation. They are or may be shifted from store to store or from corporation to corporation. So there is no question about the interstate character of the business; nor of the requisite sum involved.
For quite a while during the early part of this year the defendant unions tried to induce the plaintiffs’ employees to join their unions, but they, of their own accord and without any influence or interference whatever on the part of the plaintiffs, refused to join. However, the defendants notified plaintiffs that they represented a majority of their employees.
Upon the refusal of plaintiffs’ employees to join defendant unions, defendants placed professional, hired pickets (none of whom had in any way been connected with the plaintiffs) around their stores and warehouses, carrying signs which falsely stated that plaintiffs were unfair to organized labor and that their employees were on strike. The pickets, by surrounding plaintiffs’ stores and warehouses, prevented customers from entering them,' prevented trucks from loading and unloading, from taking merchandise to and from their stores and warehouses and from receiving merchandise for plaintiffs or from delivering merchandise to them.
The United Retail and Wholesale Employees of America, hereinafter called United, affiliated with the Committee for Industrial Organization (hereinafter referred to as the -C. I. O.), observed what was going on and notified plaintiffs that it represented more than a majority of their employees and that under the provisions of the Wagner Act, it was entitled to represent their employees as their sole bargaining agent and that any agreement which they entered into with any other union would be illegal, void and punishable under the provisions of that Act. The situation was that both the affiliates of the American Federation of Labor on the one side and United, affiliated with the C. I. O., on the other side, claimed the right to represent plaintiffs’ employees as their sole, collective bargaining agent. Thereúpon plaintiffs suggested to both the defendants and United that they try to organize and unionize their employees in any way that they could; that both sides would have entire freedom to distribute literature to them, talk to and persuade them; that at the end of a campaign period of four days in which to organize and unionize them, an election be held to select their bargaining agents and plaintiffs would sign a contract with whichever union obtained a majority of the votes at the election. United agreed, but the defendants, although claiming to represent a majority of the employees, refused and declared that they would not withdraw their picket line unless and until plaintiffs entered into a “union agreement” with them. Plaintiffs thereupon, in order to stop the picketing, which was destroying their business, agreed to enter into a contract with the defendants and began negotiations accordingly. The pickets were thereupon withdrawn.
United vigorously protested against the proposed agreement with the defendants and filed a complaint on April 8, 1938, against plaintiffs with the National Labor Relations Board, hereinafter called the Board, charging them with unfair labor practices as defined in subsections. (1) (2) (3) and (5) of section 8 of the Wagner Act, 29 U.S.C.A. § 158(1-3,5).
The Board notified the plaintiffs of these charges and asked if they cared to make a statement of their “side of the matter”.
A preliminary hearing was held on April 19, 1938, at the office of the Board, 1432 Bankers Securities Building, Philadelphia, Pennsylvania. At that hearing Leo Fee, Esq., a hearer for the Board, suggested that the defendant unions, United and the plaintiffs agree that an election be held to determine which of the unions was entitled to represent plaintiffs’ employees for the purpose of collective bargaining which was really the only question at issue. This suggestion was accepted by the plaintiffs and United but was rejected by the defendant unions. Both sides, the defendant unions and United, claiming as members a majority of plaintiffs’ employees, asserted the right to be their sole collective bargaining representative. This question had to be determined by the Board and could not be determined, under the facts in this case, by the plaintiffs. They said then, a$ they have declared over and over again ever since, that they were willing to enter into a “union agreement” in accordance with the provisions of the Act with either union, whichever was entitled to represent their employees; that all they wanted to know was with which union or unions they could legally enter into a contract as legal rep[824]*824resentative for the purpose of collective bargaining in accordance with the provisions of the Act.
The plaintiffs then, May 12, 1938, received the following communication from the Board:
“National Labor Relations Board
“Fourth Region
“1432 Bankers Securities Building “Philadelphia, Pa.
“May 12, 1938
“Kingsley 1860
“Union Premier Food Stores, Inc.,
“58th Street and Grays Avenue,
“Philadelphia, Pa.
“In re: United Premier Food Stores, Inc.,
The Food Fair, Inc., a New Jersey Corp.,
The Food Fair, Inc. of Pa., a Pa. Corp.
Case No. IV-R-209.
“Gentlemen:
“This is to advis^ you that the United Retail & Wholesale Employees of America, a labor organization, has filed in this office an amended Petition for investigation and certification of representatives pursuant to Section 9(c) of the National Labor Relations Act, claiming to have been chosen by a majority of your regular employees for the purposes of collective bargaining, exclusive of executives, administrative officers, part-time or extra employees and office workers.
“They have further supplied this office with signed membership cards which indicate that their claim is founded in fact. Petition further states that you have refused to recognize the United Retail & Wholesale Employees of America as the sole and exclusive bargaining agency and that thereby a question has arisen concerning the representation of your employees.
“You are further advised that a copy of this Petition is being forwarded to the National Labor Relations Board in Washington, together with a description of the situation that presently exists, for such disposition as the Board proposes to make of the matter.
“Very truly yours,
“(signed) John E. Johnson “John E. Johnson,
“FMB. Acting Regional Director.”
Plaintiffs were advised by their counsel that this communication was in effect a restraining order and prevented them from entering into an agreement with defendants pending the determination by the Board of the collective bargaining representative for their employees.
Defendants thereupon notified thé plaintiffs that in preparation for the election to be held by the Board they would organize and unionize plaintiffs’ employees and try to enroll them in the defendants’ unions and requested plaintiffs’ cooperation. Plaintiffs agreed to cooperate with defendants to the extent that they legally could, and would not only permit, but would aid defendants in distributing literature and notices of meetings, and would allow defendants’ organizers to meet, talk to and persuade their employees to enroll as members of defendants’ unions.
Plaintiffs allege that defendants continued their efforts to organize, unionize and enroll their employees in their union until June 1, 1938, when it is reported that they had succeeded in persuading only a small per cent, of them to join their unions and what that per cent, is the Board will determine.
On the following day, June 2, 1938, plaintiffs allege that defendants again hired’ and placed professional pickets, none of whom were or had been employed by plaintiffs, in front of and around plaintiffs’ stores and warehouses. They again, as before, crowded around and blocked the entrances to plaintiffs’ stores; they coerced and intimidated customers 'and suppliers from dealing with plaintiffs; and prevented the delivery or shipment of merchandise to or from plaintiffs’ stores and warehouses and carried around with them large, conspicuous signs falsely accusing plaintiffs with being unfair to organized labor and stating that their employees were on strike.
More than fifty per cent, of the merchandise handled by plaintiffs is perishable. The continuance of the picket line would have destroyed plaintiffs’ business within a few days for they could not, while the picket line was maintained, move even perishable merchandise to or from the railroad stations or their warehouses. Plaintiffs tried hard to settle the contest between the defendant unions and United, but without success. They saw no way to escape the destruction of their business and financial ruin except through injunctive relief. Accordingly they filed in the District Court a bill in which they prayed that defendants be enjoined and restrained until final hearing and perpetually thereafter from, (1) [825]*825violating the Sherman Anti-Trust Act, the Clayton Act and the Wagner Act, (2) from interfering with, obstructing or stopping, directly or indirectly, the shipment of plaintiffs’ interstate merchandise to or from their stores and warehouses, (3) from conspiring and “bombing” to obstruct or stop, directly or indirectly, plaintiffs’ interstate commerce business, (4) from destroying, interfering with, or in any way obstructing ■or picketing their offices, stores and warehouses and from obstructing or interfering with plaintiffs in their purchase, sales, receipt and delivery of merchandise, (5) from interfering with plaintiffs’ employees ■and from visiting the homes of plaintiffs’ employees and threatening, intimidating, coercing or insulting their families for the purpose of forcing them to join the defendant unions, and (6) from displaying or carrying picket cards falsely stating that plaintiffs’ employees are on strike or that ■plaintiffs are unfair to organized labor.
The learned District Judge granted a preliminary injunction restraining defendants in accordance with plaintiffs’ prayers.
The fundamental question here, as stated above, is whether or not under the facts of this case there was a labor dispute involving the plaintiffs within the meaning -of the Wagner Act. Of course there was a “labor dispute” or the Board could not have taken jurisdiction and proceeded to •determine the question in issue, but the dispute was and is entirely between the unions. The plaintiffs are not disputing with anyone.
It is true that United filed a complaint with the Board against the plaintiffs charging them with being guilty of practically everything which section 8 of the Act, 29 U.S.C.A. § 158, defines as an unfair labor practice, but all the facts and evidence, which complainant must have known, show that there was only one issue over which there - was any question or controversy whatever and that was, who was to be the representative of plaintiffs’ employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment and this issue in the last analysis was one between the C. I. O. and the American Federation of Labor.
Section 2(9) of the Wagner Act, 29 U. S.C.A. § 152(9), defines a “labor dispute” as follows: “The term ‘labor dispute’ includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.”
The only controversy in this case concerns the right to represent plaintiffs’ employees as collective bargaining agent and that is a real controversy, but it is between the affiliates of the C. I. O. and of the American Federation of Labor. This controversy in money means a gain of about $50,000 in dues to the one which wins, but the plaintiffs are not concerned as to which one that may be. The plaintiffs are standing by while the disputants wage their contest, and are ready, willing and anxious to obey the Board, bargain collectively with the victor and comply with the provisions of the Act when the Board certifies to them the collective bargaining agent.
However sympathetic we may be — on the one hand with labor, to see that its interests are legally and fully protected in respect to proper representation and collective bargaining, or in any other respect affecting its employment; and on the other hand, with capital, to see that it receives a square deal in an honest, fair and impartial . administration of the Wagner Act — yet we can not construe the facts of this case to constitute a “labor dispute” involving the plaintiffs when there is no such dispute.
The unions are the “disputants” and as to this dispute they do not now stand in “proximate” or other relation to the plaintiffs or their employees within the meaning of the Wagner Act. Congress meant to help both capital and labor by the passage of this Act and when the Board has taken jurisdiction and is determining the only question in dispute between the unions, it did not intend to destroy the great business of any employer who stands willing and ready to obey any and all provisions of the Act as soon as told by the Board what to do.
In the case of Edward Lauf et al. v. E. G. Shinner & Co., Inc., 303 U.S. 323, 58. S.Ct. 578, 82 L.Ed. 872, upon which defendants principally rely, there were no contesting unions. The dispute was entirely between the union and the employer. The union demanded that the employer require its employees to join the union under penalty of discharge for refusal to do so. This the employer would not do and thus a controversy arose between the employer [826]*826and the union over the contention of the union that the employer must force its employees into the union. In the case at bar the Board has taken that question away from the consideration of the plaintiffs and the unions. They may not dispute about it. The defendants say that we represent your employees. The. plaintiffs reply, that may be true, but the fact will be found by the Board.
There was not a single unfair labor practice or question in dispute in this case with the plaintiffs. Their refusal to bargain collectively with United or plaintiffs under the facts in this case was not a refusal to bargain collectively with representatives of their employees. It is true that United claims to be their representative but so do the defendants and it is to be hoped that the' Board will soon determine which is the legal representative, and when that is done and the Board certifies the rightful claimant, the plaintiffs will immediately enter into a union agreement with it. No state court decision in this case, as there was in the Lauf Case, has construed the facts to be a “labor dispute”. The Pennsylvania Labor Relations Act, 43 P.S.Pa. § 206c, defines a “labor dispute” in the same language as does the Wagner Act, but the Supreme Court of Pennsylvania has not yet defined what constitutes a “labor dispute” under that Act. This case substantially differs from the Lauf Case, and the decision in that case is not controlling here.
Since there was no “labor dispute” in this case in which plaintiffs were involved, the District _ Court was not bound by the provisions of the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq„ but had power to grant the restraining order and we think it wisely exercised that power.
■ Section 10(h) of the Wagner Act, 29 U.S.C.A. § 160(h), provides that: “When granting appropriate temporary relief or a restraining order, or making and entering a decree enforcing, modifying, and enforcing as so modified or setting aside in whole or in part an order of the Board, as provided in this section, the jurisdiction of courts sitting in equity shall not be limited by sections 101 to 115 of this title.”
Section 10(e) of the Act, 29 U.S.C.A. § 160(e), conferred power upon courts sitting in equity to grant appropriate temporary relief and a restraining order upon the application of the Board to enforce its order. In section 10(f), 29 U.S.C.A. § 160 (f), power was given to courts to grant like relief to persons aggrieved by the final orders of the Board. As we read the Act section 10(h) confines the exercise of this power to sections 10(e) and 10(f). It follows that courts sitting in equity do not have power to grant appropriate temporary relief or a restraining order in cases involving a “labor dispute” until the Board has filed its order. The District Court reached the right conclusion in this case, but based its order upon the wrong ground.
In such a case as we have here, where the controlling and only question is which of two labor unions is the collective bargaining agent of the employees of the plaintiffs, and the employers take no part in such dispute, but, on the contrary, are willing to abide by the decision of the Board and contract with the union it designates, it is manifest that the Board, and it alone, has jurisdiction to decide that question by an election and, as conceded at the argument, the court below had no power to order an election and to that extent its order is vacated; but on the question before us, whether or not we should grant a supersedeas of the injunctive order of the court, pending a decision by the Board as to what organization is the lawful bargaining agent of the plaintiffs’ employees with which the plaintiffs must bargain, we think the supersedeas should be denied and the status in quo preserved until the Board acts. Such denial will prevent irreparable injury to the plaintiffs and the ruin of its business and at the same time do little, if any, harm to defendants.
The petition for a supersedeas is denied pending action by the Board.