                  United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                               _____________

                                  No. 96-3261
                                 ____________

Kansas City Southern Transport     *
Company, Inc.; Kansas City         *
Southern Railway Company,          *
                                   *
                 Appellees,        *
                                   * Appeal from the United States
      v.                           * District Court for the
                                   * Western District of Missouri
Teamsters Local Union #41;         *
Affiliated with the International  *
Brotherhood of Teamsters,          *
                                   *
                 Appellant.        *
                              ____________

Before McMILLIAN and HANSEN, Circuit Judges, and MAGNUSON,*
      District Judge.
                              ____________

                          Submitted: March 10, 1997

                                    Filed: October 2, 1997
                                 ____________

McMILLIAN, Circuit Judge.

      Teamsters Local No. 41 (the Union) appeals from a preliminary
injunction in favor of Kansas City Southern Transport Company, Inc.
(Transport), and the Kansas




     *The Honorable Paul A. Magnuson, Chief Judge, United States District
     Court for the District of Minnesota, sitting by designation.
City Southern Railway Company (Railway) (together, “the plaintiffs”)
entered in the United States District Court1 for the Western District of
Missouri enjoining the Union’s picketing activity at various Railway
facilities. Kansas City S. Transp. Co. v. Teamsters Local No. 41, No.
96-0823-CV-W-2 (W.D. Mo. Aug. 19, 1996) (hereinafter, “modified order”)
(modifying id. (Aug. 9, 1996) (hereinafter, “order” or “original order”)).
The district court initially issued a preliminary injunction against the
Union and ordered arbitration of the underlying dispute, order at 9-10, but
it subsequently modified its order, staying the arbitration provisions of
the original order pending an evidentiary hearing on the plaintiffs’
request for a permanent injunction. Modified order at 1. For reversal,
the Union argues that the district court erred in holding that it had
subject matter jurisdiction and, alternatively, that the injunction
violates the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115. For the reasons
discussed below, we affirm the order of the district court.

      Jurisdiction was asserted in the district court based upon 29 U.S.C.
§ 185(a). Jurisdiction on appeal is proper based upon 28 U.S.C. § 1292(a).
The notice of appeal was timely filed under Fed. R. App. P. 4(a).

                                 I. Background

      The relevant facts are not in dispute and are taken in large part
from the district court’s original order. Order at 1-3. Transport is a
Louisiana corporation engaged in the business of transporting freight to
and from railroad cars. Railway is a Missouri corporation engaged in the
operation of an interstate railroad with operations in eleven states.
Transport and Railway were parties to a contract under which Transport
operated the intermodal (piggyback) ramp and provided loading and unloading
services for Railway at Kansas City, Missouri, and other locations. The
Union represented




      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
                                      -2-
Transport's hourly paid employees who performed the ramping services at the
Kansas City, Missouri, location.       Transport and the Union signed a
collective bargaining agreement (the CBA) covering Transport's employees
from April 1, 1994, through March 31, 1998. Article 40 of the CBA provides
that all differences arising between Transport and the Union or any
employee are to be settled within the context of a grievance-arbitration
process. Railway is not a signatory to the CBA.

      In May 1996, Railway notified Transport of its decision to terminate
the use of Transport's services at the Kansas City, Missouri, location.
Instead, Railway contracted with a non-union entity, In-Terminal Services,
Inc., to perform those services. Once Railway terminated its relationship
with Transport, Transport did not have any work to perform at the Kansas
City, Missouri, location. Accordingly, on May 31, 1996, Transport notified
the Union that, due to Railway's decision to terminate Transport’s services
at the Kansas City, Missouri, location, Transport would discontinue
operations in Kansas City. As a result, Transport terminated seventeen
employees that were represented by the Union.2

      The Union subsequently filed an unfair labor practice charge with the
National Labor Relations Board, alleging that Transport and Railway are a
“single employer”3 and that

      [s]ince on or about May 14, 1996, and continuing
      thereafter, the Employer has failed and refused to
      bargain with Teamsters Local 41, affiliated with
      International Brotherhood of




      2
       Consequently, the real dispute is between the Union and Railway.
      3
        Under the single employer doctrine, two or more related enterprises are treated
“as a single employer for purposes of holding the enterprises jointly to a single
bargaining obligation or for the purpose of considering liability for any unfair labor
practices.” Iowa Express Distrib., Inc. v. N LRB, 739 F.2d 1305, 1310 (8th Cir.), cert.
denied, 469 U.S. 1088 (1984).
                                         -3-
      Teamsters, AFL-CIO, a labor organization, by, inter
      alia, subcontracting all of the bargaining unit work
      to a non-union firm in order to evade the obligations
      under its collective bargaining agreement with
      Teamsters Local 41.

      On or about May 29, 1996, the Employer terminated the
      employment of all 17 of the bargaining unit employees
      at its piggyback ramp operation in Kansas City,
      [Missouri,] because of their membership in, or support
      of, Teamsters Local 41.

      On August 2, 1996, as a result of the termination, the Union and the
terminated Transport employees began picketing at nine Railway facilities
in the Kansas City, Missouri, area to protest what the Union characterized
as unfair labor practices.4      Also on August 2, 1996, the plaintiffs
petitioned the district court for injunctive relief against the Union
asserting that the Union’s picketing violated the no-strike pledge
contained in the CBA and seeking declaratory judgment that Railway is not
a party to, or bound by, the CBA. Later that day, the district court
issued a temporary restraining order against the Union. See order at 2.
      On August 9, 1996, the district court granted the plaintiffs' request
for a preliminary injunction enjoining the Union and the Transport
employees from their picketing activities and ordered that, as a condition
of receiving the preliminary injunction, Railway enter into arbitration
with the Union regarding the labor dispute. Id. at 9-10. The district
court held that Railway failed to provide evidence in support of its
position that it is not a single employer with Transport and, accordingly,
ordered Railway to arbitrate the dispute with the Union pursuant to the
CBA.   Id. at 6, 9-10.     However, on August 19, 1996, pursuant to the
plaintiffs' motion to modify the order, the district court modified its
August 9, 1996, order and stayed the arbitration provisions of the original
order pending an evidentiary hearing on the plaintiffs’ request




      4
        The Union contends that the employees were terminated in order to free the
plaintiffs of a “no subcontracting” clause contained in the CBA.
                                       -4-
for a permanent injunction, including the issue of single employer status.
Modified order at 1.     Transport offered to arbitrate the dispute, and
Railway agrees to arbitrate the dispute if the district court finds that
Transport and Railway are a single employer.         However, rather than
proceeding with the evidentiary hearing and subsequent arbitration with
Transport and possibly Railway, the Union appealed the preliminary
injunction.

                              II. Discussion

      It is necessary at the outset to clarify the relationships between
the parties and to set forth the Union’s seemingly inconsistent position
on appeal. As noted earlier, the real dispute in this case is between the
Union and Railway. However, the only way that the Union can compel Railway
to arbitrate the underlying dispute -- i.e. the termination of Transport’s
employees -- is through the CBA, to which Transport is the sole signatory
employer.    Thus, the Union, in order to enforce the CBA’s grievance
arbitration clause against Railway, argues that Railway and Transport are
a single employer and, therefore, both are bound by the CBA.
Alternatively, the Union argues that, if Railway is not bound by the CBA’s
grievance arbitration clause, then the Union is not bound by the CBA’s no-
strike clause and, therefore, Railway is not entitled to a preliminary
injunction.

      “We review an order granting a preliminary injunction for an abuse
of discretion, clear legal error, and clearly erroneous fact findings.”
Hill v. Xyquad, Inc. 939 F.2d 627, 630 (8th Cir. 1991); see Dataphase Sys.,
Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 n.8 (8th Cir. 1981) (en banc)
(Dataphase) (noting that the grant of preliminary relief is within the
discretion of the district court).




                                   -5-
A. Subject Matter Jurisdiction

      The Union argues that the district court lacked subject matter
jurisdiction in this case because the essential cause of action was brought
by an employer (Railway) who has never been a party to the CBA and who
cannot thereby claim any of the benefits or promises incorporated therein
-- in particular, the mandatory grievance-arbitration procedure and the
attendant no-strike pledge. The Union claims that Railway consistently
asserted to the district court that it was not bound to arbitrate under the
CBA. Therefore, contends the Union, Railway cannot, on the one hand, seek
protection from the CBA's no-strike clause and, on the other hand, deny any
obligation to arbitrate under the grievance-arbitration provision of the
CBA.

      The Union argues that, because Transport is the signatory employer
to the CBA and has since ceased all of its operations, Transport has no
real or substantive interest in the underlying dispute or in the
enforcement of the CBA. The Union therefore contends that Railway is the
real party in interest because the picketing could not have affected
Transport's already defunct business. The Union maintains that, although
Railway is the real party in interest, Railway is unable to enforce the no-
strike pledge contained in the CBA because it is not a party to the CBA.
While the Union admits that a federal court is not necessarily divested of
jurisdiction under 29 U.S.C. § 185 based upon the fact that an employer has
not signed the labor agreement, it argues that Railway lacks standing to
bring its claim because it denies being bound to the CBA, specifically, to
the obligation to arbitrate disputes under the CBA.

      We disagree and hold that the district court had subject matter
jurisdiction over the plaintiffs’ petition for injunctive relief against
the Union and request for declaratory relief regarding Railway's obligation
to arbitrate. The district court’s jurisdiction was predicated on § 301(a)
of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a):




                                   -6-
            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
      organizations, may be brought in any district court of
      the United States having jurisdiction of the parties,
      without respect to the amount in controversy or
      without regard to the citizenship of the parties.
"Whether or not a company is bound to arbitrate, as well as what issues it
must arbitrate, is a matter to be determined by the court, and a party
cannot be forced to arbitrate the arbitrability issue."        Litton Fin.
Printing Div. v. NLRB, 501 U.S. 190, 208 (1991) (citations omitted). The
district court’s jurisdiction under § 301 is determined by examining
whether the major issues to be decided “can be characterized as primarily
representational or primarily contractual.” Local 204, IBEW v. Iowa Elec.
Light & Power Co., 668 F.2d 413, 419 (8th Cir. 1982). The single employer
status issue is primarily contractual and subject to the district court’s
jurisdiction, while the question of whether a non-signatory employer with
single employer status is bound by a collective bargaining agreement is
primarily representational and thereby outside the district court’s
jurisdiction.    See Brotherhood of Teamsters, Local 70 v. California
Consolidators, Inc., 693 F.2d 81, 83-84 n.4 (9th Cir. 1982), cert. denied,
469 U.S. 887 (1984); see also Metropolitan Detroit Bricklayers Dist.
Council v. J.E. Hoetger & Co., 672 F.2d 580, 583 (6th Cir. 1982) (district
court had jurisdiction under § 301 of LMRA to decide whether party was a
“‘joint employer’ such that it could be bound by the collective bargaining
agreement”).
      In this case, the Union argued to the district court that the
plaintiffs were a single employer and that Railway was therefore bound by
the grievance-arbitration provision in the CBA. Consequently, the district
court ordered an evidentiary hearing on the issue. The district court had
subject matter jurisdiction to determine the single employer status issue.
See Crest Tankers, Inc. v. National Maritime Union of Am., 605 F. Supp.
1270, 1276 (E.D. Mo. 1985), rev'd on other grounds, 796 F.2d 234 (8th Cir.




                                   -7-
1986). Moreover, the Union is estopped from arguing that Transport has no
real interest in the underlying dispute or in the enforcement of the CBA
because of its own assertion that the CBA is in effect and that the alleged
contractual responsibilities under the CBA -- specifically, the arbitration
provisions -- should be enforced. Accordingly, we hold that the district
court properly exercised subject matter jurisdiction.

B. The Norris-LaGuardia Act

      The Union alternatively argues that, even if the district court’s
jurisdiction was proper, the preliminary injunction violated the Norris-
LaGuardia Act.

     No court of the United States shall have jurisdiction
     to issue any restraining order or temporary or
     permanent injunction in a case involving or growing
     out of any labor dispute to prohibit any person or
     persons participating or interested in such dispute .
     . . 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;

           . . . .

           (e) Giving publicity to the existence of, or the
     facts involved in, any labor dispute, whether by
     advertising, speaking, patrolling, or by any other
     method not involving fraud or violence;

           (f) Assembling peaceably to act or to organize to
     act in promotion of their interests in a labor
     dispute;
           . . . .

           (i) Advising, urging, or otherwise causing or
     inducing without fraud or violence the acts heretofore
     specified.




                                   -8-
29 U.S.C. § 104. However, in Boys Markets, Inc. v. Retail Clerks Union,
Local 770, 398 U.S. 235 (1970) (Boys Markets), the Supreme Court recognized
the following narrow exception to the anti-injunction provisions of the
Norris-LaGuardia Act:

     in order to accommodate the anti-injunction provisions
     of Norris-LaGuardia to the subsequently enacted
     provisions of § 301(a) [of the Labor Management
     Relations Act] and the strong federal policy favoring
     arbitration, it was essential to recognize an
     exception to the anti-injunction provisions for cases
     in which the employer sought to enforce the union’s
     contractual obligation to arbitrate grievances rather
     than to strike over them.

Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n,
457 U.S. 702, 708 (1982), citing Boys Markets, 398 U.S. at 249-53. Under
the Boys Markets exception,

     [a] District Court entertaining an action under § 301
     [of the Labor Management Relations Act, 29 U.S.C. §
     185,] may not grant injunctive relief against
     concerted activity unless and until it decides that
     the case is one in which an injunction would be
     appropriate despite the Norris-LaGuardia Act. When a
     strike is sought to be enjoined because it is over a
     grievance which both parties are contractually bound
     to arbitrate, the District Court may issue no
     injunctive order until it first holds that the
     contract does have that effect; and the employer
     should be ordered to arbitrate, as a condition of his
     obtaining an injunction against the strike. Beyond
     this, the District Court must, of course, consider
     whether the issuance of an injunction would be
     warranted under the ordinary principles of equity --
     whether breaches are occurring and will continue, or
     have been threatened and will be committed; whether
     they have caused or will cause irreparable injury to
     the employer; and whether the employer will suffer
     more from the denial of an injunction than




                                   -9-
     will the union from its issuance.

Boys Markets, 398 U.S. at 254 (citation omitted).        The Supreme Court
further refined the Boys Markets exception in Buffalo Forge Co. v. United
Steelworkers of Am., AFL-CIO, 428 U.S. 397, 406 (1976), and held that it
applies only where the underlying dispute, that which precipitated the
strike, is subject to binding arbitration under the parties’ collective
bargaining agreement.
      The Union argues that neither Railway nor Transport satisfied the
strict limitations placed on injunctions issued pursuant to the Boys
Markets exception to the Norris-LaGuardia Act. The Union contends that
"[a] court should not enforce a no-strike clause at the behest of a
putative alter-ego or affiliate until the court finds that the alter-ego
is in fact bound by the agreement containing the no-strike provision."
Tudor Fashions Ltd. v. Romney, 634 F. Supp. 297, 302 (S.D.N.Y. 1986)
(Tudor) (holding that employer was not entitled to a Boys Market injunction
because it was not a party to the collective bargaining agreement). The
Union maintains that the district court erred in modifying its initial
order, which expressly conditioned the preliminary injunction upon
Railway's agreement to arbitrate the dispute. The Union also claims that
the injunction violated the Boys Markets requirement that the plaintiffs
show irreparable harm caused by the picketing because Transport was no
longer doing business.    See Tudor, 634 F. Supp. at 303 (holding that,
because plaintiff was not doing business, it could not suffer harm from the
union's conduct). The Union further contends that the plaintiffs were not
entitled to injunctive relief because of their unclean hands, as a single
employer, in transferring the work to In-Terminal Services, Inc., in order
to avoid their collective bargaining obligations with the Transport
employees.
      The Union also argues that the injunction was improper because it was
issued without strict conformity to the procedural requirements of the
Norris-LaGuardia Act, 29 U.S.C. § 101. The Union claims that the district
court lacked the authority to issue the preliminary injunction because it
failed to conduct an evidentiary hearing. See id.




                                   -10-
§ 107. Further, the Union maintains that the issuance of the injunction
violated 29 U.S.C. § 108 because the plaintiffs failed to exhaust all
alternative dispute resolution mechanisms when Railway refused to submit
to immediate arbitration. Finally, the Union claims that the injunction
was improper for failing to satisfy the requirement of 29 U.S.C. § 109 that
findings of fact be made and filed by the district court prior to the
issuance of the injunction.     The Union maintains that, because these
procedures were not followed, not only did the preliminary injunction
violate the provisions of the Norris-LaGuardia Act, but also the district
court lacked jurisdiction to enter the preliminary injunction.

      We hold that the district court properly issued the injunction under
the rationale of Boys Markets and Buffalo Forge because the dispute
underlying the strike, Transport’s termination of its employees, is
arbitrable under the collective bargaining agreement. The prerequisites
for a Boys Markets injunction are present in this case: (1) Transport and
the Union are signatories to the CBA, which expires March 31, 1998, and are
bound by the grievance arbitration clause contained therein5; (2) the
issuance of the injunction was properly conditioned on the district court’s
order for the parties to the CBA to arbitrate, an order governing the Union
and Transport, as well as Railway if it is found to be a party to the CBA;
and (3) injunctive relief is warranted under ordinary principles of equity.
See Boys Markets, 398 U.S. at 254. Under ordinary principles of equity,
this court considers: “(1) the threat of irreparable harm to the movant;
(2) the state of balance between this harm and the injury that granting the
injunction will inflict on other parties litigant; (3) the probability that
movant will succeed on the merits; and (4) the public interest.”
Dataphase, 640 F.2d at 114. “In balancing the equities, no single factor
is determinative.” Id. at 113. The district court did not abuse its
discretion in concluding, based upon the following reasoning, that




      5
        The labor contract is in effect between Transport and the Union because, if
Transport resumed operations, the CBA would govern the collective bargaining
relationship until it expires on March 31, 1998.
                                      -11-
“these factors weigh heavily in favor of Railway.”     Order at 8.

     If the Union resumes its picketing activity, Railway
     employees that are members of the same union may
     indeed refuse to work[,] thereby severely restricting
     Railway’s ability to carry out a modicum of business
     activities.    Further, members of the public that
     depend on Railway’s services may be inconvenienced by
     the Union’s activities.    As such, [the] [c]ourt is
     persuaded that Railway is faced with the possibility
     of irreparable harm if injunctive relief is not
     granted.

     Similarly, the balance of the harm weighs heavily in
     favor of Railway. . . . The Union has filed at least
     two charges with the [National Labor Relations] Board
     on behalf of these [seventeen terminated] employees.
     By filing these charges with the Board, the Union is
     assured   its   constituents’   grievances  will   be
     addressed.    In contrast, Railway runs the risk of
     irreparable harm if the preliminary injunction is not
     granted. . . . While there is no way of predicting
     how, or to what extent, a continuation of the Union’s
     picket[ing] activity would affect Railway, it is
     almost   certain   to   have  detrimental   financial
     ramifications.

     Moreover, given the fact that the [CBA] specifically
     prohibits the very activity the Union is engaged in,
     and in light of the United States Supreme Court’s
     stated preference for the resolution of labor disputes
     by arbitration, . . . the [c]ourt finds that it is
     likely that plaintiffs would succeed on the merits.

     Finally, the [c]ourt is persuaded that it is in the
     best interest of the public to issue the preliminary
     injunction. Railway is part of an industry that is
     paramount to the success of this country’s interstate
     commerce. If, as here, the facts do not warrant it,
     disruption of such a vital industry should be avoided.

Id. at 8-9 (citation omitted).   Contrary to the Union’s argument, Transport
could be




                                    -12-
irreparably harmed if, in the future, it resumes its business operations
in Kansas City, Missouri, because the Union’s picket signs alleged unfair
labor practices by Transport and Railway. Moreover, under the Union's view
that Railway and Transport are a single employer, Railway would likely be
irreparably harmed because of the disruption to its interstate rail service
caused by its own uninvolved employees' refusal to cross the Union's picket
line. This likelihood, together with the existence of the other three
Dataphase factors, is sufficient, without further proof of irreparable harm
to Transport, to support the relief granted.

      Furthermore, we disagree with the holding in Tudor because it is
contrary to federal labor policy favoring arbitration as “a mechanism for
the expeditious settlement of industrial disputes without resort to
strikes, lockouts, or other self-help measures.” Boys Markets, 398 U.S.
at 249. “The primary function of a preliminary injunction is to preserve
the status quo until, upon final hearing, a court may grant full, effective
relief.” Ferry-Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th
Cir. 1984) (issuing injunction to restore business activity).        It is
therefore consistent with federal labor policy to preserve the status quo
by enjoining the Union’s picketing over the termination of the Transport
employees, which may be an arbitrable issue, pending a final determination
of whether the Union is bound to resolve the dispute by arbitration.

      We hold that the district court’s order complies with Boys Markets.
The district court properly modified its original order issuing the
preliminary injunction and stayed the arbitration provisions "pending an
evidentiary hearing on the permanent injunction (including the issue of
single employer status)." Modified order at 1. In AT&T Technologies, Inc.
v. Communications Workers of Am., 475 U.S. 643 (1986) (AT&T Technologies),
the Supreme Court set forth three rules governing a party’s duty to
arbitrate. First, “arbitration is a matter of contract and a party cannot
be required to submit to arbitration any dispute which he has not agreed
so to submit.” Id. at 648 (citation omitted). Second, “the question of
arbitrability -- whether a collective bargaining agreement creates a duty
for the parties to arbitrate the particular grievance




                                   -13-
-- is undeniably an issue for judicial determination.” Id. at 649. Third,
“in deciding whether the parties have agreed to submit a particular
grievance to arbitration, a court is not to rule on the potential merits
of the underlying claims.” Id. In the present case, the modified order
fully complies with the national labor policy underlying Boys Markets. See
398 U.S. at 249.    The district court stayed, rather than deleted, the
original order’s arbitration provisions, and, thus, those provisions are
merely held in abeyance.     “The duty to arbitrate being of contractual
origin, a compulsory submission to arbitration cannot precede judicial
determination that the collective bargaining agreement does in fact create
such a duty.”    AT&T Technologies, 475 U.S. at 649 (citation omitted).
Therefore, the district court appropriately held the order to arbitrate in
abeyance pending an evidentiary hearing to determine the single employer
status issue and, consequently, whether Railway is obligated to arbitrate
under the CBA. See id.6

     We decline to decide whether the procedural provisions of the Norris-
LaGuardia Act, 29 U.S.C. §§ 107-109, apply to Boys Markets injunctions.7


      6
        If the district court should conclude that Railway does not share single employer
status with Transport and therefore is not a party to the CBA, Railway will not
obligated to arbitrate the underlying dispute. We leave to the district court the question
of whether, in that case, Transport alone is entitled to a Boys Market injunction.
However, we note that, in such a case, Railway would likely have a damages cause of
action against the Union alleging that the Union’s activities constituted “secondary”
picketing in violation of 29 U.S.C. § 158(b)(4). See 29 U.S.C. § 187(b); see also
Beelman Truck Co. v. Chauffeurs, Teamsters, Warehousemen and Helpers, Local
Union No. 525, 33 F.3d 886, 890 (7th Cir. 1994).
      7
        See Granny Goose Foods, Inc. v. Brotherhood of Teamsters, Local No. 70, 415
U.S. 423, 445 n.19 (1974) (declining to reach the question of whether a Boys Markets
injunction must comply with § 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107). But
compare, e.g., Tejidos De Coamo, Inc. v. ILGWU, 22 F.3d 8, 12-13 (1st Cir. 1994)
(relying upon Textile Workers Union of Am. v. Lincoln Mills of Alabama, 353 U.S.
448 (1957), and Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235 (1970), for
the proposition that § 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107, does not govern
a case involving affirmative enforcement of collective bargaining contracts in support
of arbitration), with Westmoreland Coal Co. v. International Union, United Mine
Workers of Am., 910 F.2d 130, 138 (4th Cir. 1990) (holding that “[s]ection 9 of the
Norris-LaGuardia Act, [29 U.S.C. § 109,] which must be accommodated with section
                                          -14-
In any event, the




301 of the National Labor Relations Act, applies to Boys Markets actions”).
                                       -15-
procedural requirements were satisfied in this case. The district court
satisfied the requirements of 29 U.S.C. § 107, which prevents the district
court’s issuance of a preliminary injunction “except after hearing the
testimony of witnesses in open court (with opportunity for cross-
examination) in support of the allegations of a complaint made under oath,
and testimony in opposition thereto, if offered, and except after findings
of fact by the court.” In this case, the district court found, and the
Union does not contest on appeal, that the relevant facts in this case are
undisputed. See order at 1. Thus, we hold that an evidentiary hearing on
the undisputed facts was unnecessary. The requirements of 29 U.S.C. § 108,
which precludes the issuance of an injunction in favor of a party who has
not exhausted the available alternative dispute resolution mechanisms to
avoid litigation, was satisfied because Transport offered to arbitrate the
dispute and Railway agrees to submit to arbitration if the district court
finds that it is obligated to do so. With regard to the factual findings
required under 29 U.S.C. § 109, the material facts were undisputed,
negating the necessity for any further findings.

                             III. Conclusion

      The district court did not abuse its discretion in enjoining the
picketing while staying the order to arbitrate because Railway agrees to
arbitrate the dispute, as required by Boys Markets, if the district court
finds such an obligation to exist based on Railway and Transport sharing
single employer status.    Because of the threat of irreparable harm to
Railway if the Union is allowed to picket Railway’s facilities and Railway
is ultimately found not to share single employer status with Transport, it
is appropriate to preserve the status quo pending final determination of
the single




                                  -16-
employer status issue.    Accordingly, we affirm the order of the district
court.

     A true copy.

           Attest:

                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                    -17-
