(dissenting).
I am unable to agree with the views of the majority in this case.
The United States Supreme Court has said that the Norris-LaGuardia Act was enacted “ * * * because Congress was intent upon taking the federal courts out of the labor injunction business except in the very limited circumstances left open for federal jurisdiction under the Norris-LaGuardia Act.” Marine Cooks and Stewards v. Panama S.S. Co., 362 U. S. 365, 369, 80 S.Ct. 779, 783, 4 L.Ed.2d 797 (1960).
With deference to”the majority, I find it difficult to conclude from the opinion whether this Court is saying that because there is no labor dispute between the plaintiff railroad and its employees the Norris-LaGuardia Act does not apply and the District Court therefore had jurisdiction to issue the injunction to prevent “interference with [a] * * * common carrier’s performance of its duty under the Interstate Commerce Act * * * to furnish adequate transportation facilities,” or whether it bases its affirmance of the District Court’s injunction on the premise that there is a “minor” dispute between the railroad and its employees within the meaning of the Railway Labor Act and therefore section 4 of the Norris-LaGuardia Act is inapplicable.
In either circumstance, I do not think that there is a dispute between the railroad and the Brotherhoods, major or minor, within the meaning of the Railway Labor Act. Accordingly, the Act should not be used to circumvent the prohibition of section 4 of the Norris-LaGuardia Act. On the other hand, I think this is a case growing out of a labor dispute and therefore section 4 does prevent the issuance of any injunction, since there is no semblance of findings in the District Court’s order that could give it authority to issue the injunction under the provisions of the Norris-LaGuardia Act.
It seems to me that the proper approach to this case is not to discover whether the District Court had jurisdiction to issue the injunction, but rather to ascertain whether something exists in the fact situation that exempts it from the application of section 4 of the Norris-La-Guardia Act. But even absent the question of the applicability of the Norris-La-Guardia Act or the Railway Labor Act to the facts of this case, I do not think the District Court had jurisdiction to issue the injunction in question.
I believe that reliance for jurisdictional purposes on a union’s interference with a common carrier’s obligation to furnish adequate interstate transportation and shipping facilities is unwarranted and the practice, if sanctioned, renders nugatory the prohibitory sections of the Norris-LaGuardia Act. Obviously all labor matters over which the Congress and the federal courts have jurisdiction involve interstate commerce to some degree since the federal government’s authority over them arises out of the Commerce Clause of the Federal Constitution. Hence, a strike or a work stoppage that does not impede that commerce in some way is an impossibility. I am not persuaded to the majority view on this point by anything found in Brotherhood of Rail. Train. v. New York Cent. R. Co., 246 F.2d 114 (6th Cir., 1957); or Toledo, P. & W. R. R. v. Brotherhood of R. R. Train., 132 F.2d 265 *777(7th Cir., 1942), reversed 321 U.S. 50, 54, 64 S.Ct. 413, 88 L.Ed. 534 (1942). I would adhere to the dissenting views expressed by Mr. Justice, then Judge, Minton in the latter case as to the lack of jurisdiction of the District Court to grant the injunction on the interstate commerce grounds. See also, the dissent of Mr. Justice, then Judge, Stewart in the former case.
I believe the more important questions, however, are (1) whether the Railway Labor Act applies to the facts of this case, and (2) if it does not, whether section 4 of the Norris-LaGuardia Act prevents the issuance of the injunction.
Section 2 of the Railway Labor Act, 45 U.S.C. § 151a, enumerates the disputes to which the Act applies as “all disputes concerning rates of pay, rules, or working conditions” and “all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.”
I do not see how the employees’ refusal to go through the picket line and hence not report for work at the yard facilities can be said to be a dispute between the railroad and its employees relating to “their own contract or their own working conditions.” Northwest Airlines, Inc. v. Transport Workers Union, 190 F.Supp. 495, 498 (D.C.W.D.Wash.1961).
The acts of the employees and their Brotherhoods in the instant case were not motivated by any dispute they have with the railroad growing out of “grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” Accordingly, there could not have existed a “minor” dispute requiring the parties under the Railway Labor Act to negotiate and confer, unless it can be said that a railway labor organization must “negotiate” before respecting another union’s picket line.
Here, there was undisputed evidence that violence was threatened by the pickets and that on one occasion a gun was fired into the cab of a locomotive used by the railroad’s employees. Aside from the traditional respect shown by one union to another’s picket line, this violence and threat of violence furnished additional reasons for the Brotherhoods’ suggestion that the picket line not be crossed (although the evidence that the Brotherhoods suggested it is so weak that I think it could be said the District Court’s findings in this regard were clearly erroneous).
In sum, it seems to me on this point that the refusal of the employees to cross the picket line under the circumstances was a non-negotiable dispute, if it was a dispute at all, and in any event it was not a dispute cognizable under the Railway Labor Act.
Section 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104, reads:
“No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
“(a) Ceasing or refusing to perform any work or to remain in any relation of employment; * *
(Emphasis supplied.)
Section 13 of the Act, 29 U.S.C. § 113 (c), defines a “labor dispute” in these terms:
“(c) The term ‘labor dispute’ includes any controversy concerning terms 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 or not the disputants stand in the proximate relation of employer and employee.” (Emphasis supplied.)
Here, there was undeniably a labor dispute between the Marine Engineer’s Beneficial Association and the Mississippi Valley Barge Lines. The picket line es*778tablished at the railroad yard entrances was a result of this dispute; therefore the “concerted” refusal to cross the picket line gave rise to a case “growing out of a labor dispute.”
As I read the Norris-LaGuardia Act, it does not deal with labor disputes as such, but with acts and events involving or growing out of labor disputes. Here, the acts and events, i. e., the refusal by the employees to cross the picket line established by the Marine Association, grew out of a labor dispute between that Union and the Barge lines. Hence, section 4 of the Norris-LaGuardia Act prevented the issuance of what I construe as a mandatory injunction commanding the railroad’s employees to go through the picket line regardless of consequences.
I respectfully dissent, and would reverse.