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April 1, 1974


Stern, District Judge.

The opinion of the court was delivered by: STERN

STERN, District Judge.

This is an action by Pilot Freight Carriers, Inc., to enjoin permanently Local 560, International Brotherhood of Teamsters and its membership from continuing a strike which began on March 1, 1974, when the membership of Local 560, all employees of the plaintiff, refused to cross a picket line established by Teamsters Local 512, at Pilot's plant in Moonachie, New Jersey, resulting in a complete shut down of Pilot's facility.

 Pilot and Local 560 entered into a contract effective July 1, 1973, which contains a no-strike clause, and Pilot here sues to enforce that agreement.

 The plaintiff's application is brought pursuant to Section 301 of the Labor Management Relations Act, 1947, 29 U.S.C. Section 185, which provides:


(a) 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 organization, may be brought in any district court of the United States having jurisdiction of the parties, without respect . . . to the citizenship of the parties.

 On March 11, 1974, Pilot Freight Carriers applied to the Court for a Temporary Restraining Order against Local 560, International Brotherhood of Teamsters, etc. The application was denied.

 On March 21, 1974, an evidentiary hearing was held on plaintiff's application for a preliminary injunction. The hearing was held on short notice at the request of the parties due to the exigencies of the situation. By consent of all the parties, the motion for a preliminary injunction has been consolidated with a prayer for a permanent injunction.

 At the conclusion of the hearing, during which plaintiff presented a witness, whose testimony is described below, defendant moved to dismiss the complaint, pursuant to F.R. Civ. P. 41(b) which states in relevant part:


. . . After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication upon the merits.

 For the reasons set forth below, the Court grants defendant's motion and dismisses the application for a preliminary and permanent injunction.

 On the basis of the evidence presented, the Court makes the following findings of fact: At approximately 11:45 A.M. on Friday, March 1, 1974, pickets appeared at plaintiff's Moonachie, New Jersey terminal with signs reading, "TEAMSTERS LOCAL 512 ON STRIKE AGAINST PILOT FREIGHT CARRIERS INC. Jax. Fla. Only."

 Teamsters Local 512 is a Jacksonville, Florida group, currently involved in a strike for recognition as representatives for employees in plaintiff's Jacksonville terminal. Members of Local 512 have appeared at various terminals of plaintiff around the country and established picket lines. Teamsters Local 560 in Moonachie has advised its members that it recognizes the Moonachie picket line as legitimate and advised its members not to cross the picket line. The members of Local 560 have refrained from crossing the picket line of Local 512, and plaintiff's Moonachie plant has been shut down.

 Plaintiff's witness has testified that an officer of Local 560 has ordered its members to obey the picket lines under penalty of having their "books lifted". Absent any evidence to the contrary, and the testimony being credible, we accept that evidence as true.

 In support of its contention that a preliminary injunction should issue, plaintiff points to Article 46 of its contract with Local 560, entitled "National Master Freight Agreement" which reads in relevant section:


Article 46 -- Grievance Procedure and Union Liability


Section 1. The Union and the Employer agree that there shall be no strike, lock-out, tie-up, work stoppage, or legal proceedings without first using all possible means of a settlement, as provided for in this Agreement or any controversy which might arise . . .

  Defendants assert a reserved exception to this provision appearing in Article 9 of the same contract: Article 9. Protection It shall not be a violation of of Rights this Agreement, Yand it shall not be cause for discharge or disciplinary action in the Section 1 event an employee refuses to enter upon any property in- volved in a primary labor dis- Picket Lines pute, or refuses to go through or work behind any primary picket line, including the primary picket lines at the Employer's place of business.


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