INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION NO. 639, Plaintiff - Appellee,
AIRGAS, INCORPORATED, Defendant-Appellant.
Argued: December 6, 2017
from the United States District Court for the District of
Maryland, at Greenbelt. Theodore D. Chuang, District Judge.
E. Stone, II, MORGAN LEWIS & BOCKIUS, LLP, Washington,
D.C., for Appellant.
James Murphy, MOONEY, GREEN, SAINDON, MURPHY & WELCH,
P.C., Washington, D.C., for Appellee.
Allyson N. Ho, MORGAN, LEWIS & BOCKIUS, LLP, Dallas,
Texas, for Appellant.
Matthew D. Watts, MOONEY, GREEN, SAINDON, MURPHY & WELCH,
P.C., Washington, D.C., for Appellee.
GREGORY, Chief Judge, and WILKINSON and HARRIS, Circuit
Dismissed by published opinion. Judge Harris wrote the
majority opinion, in which Chief Judge Gregory joined. Judge
Wilkinson wrote a dissenting opinion.
HARRIS, Circuit Judge:
Inc., a national company that produces gases for industrial
and medical uses, operates a facility in Hyattsville,
Maryland, where its approximately 65 employees are
represented by an International Brotherhood of Teamsters
union. When Airgas announced plans to relocate some of its
Hyattsville operations to nonunionized facilities, the Union
objected, arguing that the move was barred by the
parties' collective bargaining agreement, and initiated
the mandatory arbitration provided for by the agreement. And
at the Union's urging, the district court entered a
preliminary injunction prohibiting the contemplated transfer
pending arbitration, to ensure that the status quo
ante could be restored were the Union to prevail on the
merits of the contract dispute.
appealed, asking that we vacate the injunction and allow it
to proceed with its planned relocation during the
arbitration. While Airgas's appeal was pending, however,
the arbitrator issued a final decision in favor of the Union,
the arbitration concluded, and the preliminary injunction
expired by its own terms. Because Airgas no longer has a
legally cognizable interest in the validity of the
preliminary injunction, we follow our recent practice,
see International Union, UMWA v. CONSOL Energy,
Inc., No. 17-1378 (4th Cir. Nov. 27, 2017), ECF No. 42,
and dismiss this appeal as moot.
February 2017, Airgas notified the Union that represents its
Hyattsville, Maryland employees that it intended to
"completely shut down" and move two of its
Hyattsville operations to two nonunionized locations, one in
Maryland and one in Pennsylvania, by the next month. J.A. 71.
The vacated Hyattsville space would be converted into
specialized storage facilities for nitrous oxide and various
chemicals, as required to bring Airgas's practices into
compliance with Food and Drug Administration and Department
of Homeland Security regulations regarding chemical storage.
The parties agree that the transfer would mean the loss of an
estimated 13 Union positions at the Hyattsville facility,
reducing the bargaining unit's size by about twenty
Union objected on the ground that the proposed relocation
would violate Article 10 of the parties' collective
bargaining agreement ("CBA"), which provides that
Airgas "shall not subcontract, transfer, lease[, ]
assign or convey in whole or in part, directly or
indirectly, any work or service . . . presently performed or
hereafter assigned to the collective bargaining unit."
J.A. 29. Airgas disagreed, pointing to Article 9, which
reserves to Airgas the right to manage its business as it
sees fit "except as specifically limited" by the
CBA, and in particular, to "[s]ell, lease, transfer,
move, change location, discontinue, [and] relocate all or
part of the business or operations." J.A. 26-28. Airgas
also informed the Union that it had started the process of
hiring nonunion employees to perform the transferred work
operations at one of its new locations.
parties agree, their dispute is subject to mandatory
arbitration under the CBA. When Airgas declined to expedite
arbitration, the Union moved in the district court for a
preliminary injunction barring the proposed relocation
pending arbitration. Federal courts generally are without
jurisdiction to issue injunctions in labor disputes,
see 29 U.S.C. § 101, but the Union invoked the
exception recognized in Boys Markets, Inc. v. Retail
Clerk's Union, Local 770, 398 U.S. 235 (1970) and
Lever Brothers Co. v. International Chemical
Workers Union, Local 217, 554 F.2d 115 (4th Cir. 1976),
which allows for injunctions during arbitration if an
arbitrator otherwise would be unable to restore the
status quo ante after deciding the merits of a labor
dispute. According to the Union, this was precisely such a
case: Once Airgas moved several large pieces of equipment
from the Hyattsville facility to new locations, converted the
vacated Hyattsville space into designated chemical storage,
and replaced 13 terminated Union members with nonunion
employees - five of whom, it turned out, already had been
hired - it would be too late for an arbitrator to unwind the
transfer if the Union prevailed on the merits. Airgas
disagreed, insisting that it could and would undo the
transfer promptly and with ease were the arbitrator to rule
holding a hearing, the district court agreed with the Union
and issued a preliminary injunction barring the proposed
transfer pending arbitration. See International
Brotherhood of Teamsters, Local Union No. 639 v. Airgas,
Inc., 239 F.Supp.3d 906 (D. Md. 2017). The court
recognized the "jurisdictional limitations deriving from
the Norris-LaGuardia Act" that generally leave federal
courts without jurisdiction to enter injunctions in labor
disputes. Id. at 912. But under Boys
Markets and settled circuit precedent, the court
explained, "special considerations" will permit a
preliminary injunction pending arbitration: When the
parties' dispute is subject to mandatory arbitration
under a collective bargaining agreement, a court retains
jurisdiction to enter a preliminary injunction barring
proposed employer conduct where "necessary to protect
the arbitral process itself, " by ensuring that the
arbitrator will be able to "restore the status quo
ante in an acceptable form were that conduct found to be
violative of contract rights." Id. at 912-13
(quoting Columbia Local, American Postal Workers Union v.
Bolger, 621 F.2d 615, 617-18 (4th Cir. 1980)).
Airgas conceded that the parties' dispute was subject to
arbitration under the CBA, the district court turned to the
factual question of whether Airgas's planned relocation
could, "as a practical matter, be fully unwound"
were the arbitrator to rule against it. Id. at 913.
The court noted that our circuit has upheld Boys Markets
status quo injunctions in cases that involve the planned
relocation of company operations rather than more easily
rectified changes in work shifts or schedules. Id.
at 913-14 (citing Bolger, 621 F.2d at 616-18;
Drivers, Chauffeurs, Warehousemen & Helpers Teamsters
Local Union No. 71 v. Akers Motor Lines, Inc., 582 F.2d
1336, 1338-39, 1341 (4th Cir. 1978); Lever Bros.,
554 F.2d at 122). In this case, too, the district court
determined, the evidence and testimony established that
"it is not realistic to conclude that Airgas could
simply undo" the contemplated move in the event of an
unfavorable ruling by the arbitrator. Id. at 914.
That was so, the district court found, because of a
combination of circumstances: The move would require the
physical relocation of large pieces of equipment from
Hyattsville to the alternate sites; it would be accompanied
by the repurposing of the Hyattsville space as designated
chemical storage, as required by federal regulations; and
Airgas already had started to replace Hyattsville workers
with newly hired nonunion employees. Id. at 914-15.
All told, Airgas's transfer of operations, if allowed to
commence, almost certainly would become so "strongly
rooted" during the year or so devoted to arbitration
that it would be infeasible for an arbitrator to return the
parties to the status quo ante. Id. at 915.
satisfied itself of jurisdiction to enter a preliminary
injunction under Boys Markets, the district court
went on to consider the traditional preliminary injunction
factors. See Boys Markets, 398 U.S. at 254
(instructing courts to consider whether issuance of
injunction would be "warranted under ordinary principles
of equity"). As to likelihood of success on the merits,
the court explained, because the merits of the contract
dispute are reserved to the arbitrator, the relevant inquiry
is limited to whether the parties' dispute is subject to
arbitration - a point conceded by Airgas. Airgas,
Inc., 239 F.Supp.3d at 916 (citing Akers, 582
F.2d at 1342). The ...