Petition — Air Line Pilots Ass'n, International v. Trans International Airlines, Inc.

80-479 —

Supreme Court rr

» U.S,

FILED

No.

SEP 24 1980

Supreme Cowt of the United States

OCTOBER TERM, 1980

AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, AFL-CIO,

Petitioner,

Ve

TRANS INTERNATIONAL AIRLINES, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT E. SAVELSON

MICHAEL E. ABRAM

COHEN, WEISS ANDO SIMON

605 THIRD AVENUE

New YORK, NEw YORK 10158

TEL.: (212) 682-6077

ATTORNEYS FOR PETITIONER

AIR LINE PILOTS ASSOCIATION,

he INTERNATIONAL, AFL-CIO

COHEN, WEISS AND SIMON

OF COUNSEL

SEPTEMBER 1980

(10147)

MICHAEL RODAK, JR., CLERK

QUESTION PRESENTED FOR REVIEW

Does the Norris-LaGuardia Act,

29 U.S.C. §101 et seq., deprive the federal

Courts of jurisdiction to enjoin concerted

action by airline pilots, through their

union, to honor picket lines (engage in a

"sympathy strike") in support of flight

attendants on the same airline who are en-

gaged in a legal Railway Labor Act, 45

U.S.C. §151 et seq., strike?

Parties Before Court of Appeals

l. Trans International Airlines,

Inc.

2. Air Line Pilots Association,

International, AFL-CIO.

3. International Brotherhood of

Teamsters, et al., Airline

Division, Teamsters Local

2707.

73

-i1i-

TABLE OF CONTENTS

Question Presented for Review. ...

Parties before Court of Appeals. ..

pee ee ee Atles 66 ek tlk ke

Opinions Below... Sh eaten 6 ae

Ee a eee ee ee Ce

Statutory Provisions Involved. ...

Statement of the Case et apie) glo AS a

Reasons for Granting the Writ. ...

THE DECISION OF THE COURT OF APPEALS

THAT THE FEDERAL COURTS HAVE JURIS-

DICTION TO ENJOIN RLA EMPLOYEES FROM

HONORING PICKET LINES IN SUPPORT OF

A LEGAL STRIKE ON THE SAME CARRIER

PRESENTS A QUESTION OF GREAT IMPOR-

TANCE. THE NINTH CIRCUIT DECIDED

THIS QUESTION IN A MANNER CONTRARY

TO APPLICABLE DECISIONS OF THIS

RS ck baw ee ee. wre. 3" f

A. The Issue Is Of Great Importance

To RLA Employees, Carriers And

The Public 7. . 7. ° 7 . * ° ~~ + 7.

B. The Decision Of The Court Of Ap-

peals Is In Conflict With Ap-

plicable Decisions Of This Court

Conclus ion . . o . ° 7 ° . ° *. ° . *

12

12

12

18

37

-iii-

Appendix A - Opinion, U.S. Court of

Appeals, Ninth Circuit,

as amended June 2, 1980. . la

Appendix A-l - Order, U.S. Court of

Appeals, Ninth Circuit,

March 14, 1980. . . «. .- Jiael

Appendix B - Order, U.S. Court of Ap-

peals, Ninth Cireuit,

ee ee:

Appendix C - Memorandum and Order re

flight attendants, U.S.

District Court, Northern

District of California,

September 26, 1977 ....I1e

Appendix D - Memorandum and Order re

flight engineers and

pilots, U.S. District

Court, Northern District

of California, September

EVE SETS Cn hoe eee ee

Appendix E - Memorandum and Order re

pilots, U.S. District

Court, Northern District

of California, October

SO dk SUC 66. els ee eae

Appendix F - Judgment, U.S. District

Court, Northern District

of California, November

BOs) BE Se ee wie ee

Appendix G - Statutes Involved. .... 1g

TABLE OF AUTHORITIES

Cases:

ALPA v. Civil Aeronautics Board, 502

F.2d 453 (D.C. Cir. 1974), cert.

denied, 420 U.S. 972 (1975)....... 26

Bhd. of ~ocomotsve Engineers Vv.

Missourt = E-2, BR. Co., 363 U.S.

8 ( 9 _) PA oe eeeeee eeeeveeeee 34, 36n

Bhd. of Locomotive Firemen v. Florida

E.C. Ry-, 346 F.2d 673 (5th Cir.

phe ehh eek eaddes eee bha cee e oe 19n

Bhd. of Railroad Trainmen v. Atlantic

Coast Line RR, 362 F.2d 6495 (5th

Cir. 1966), aff'd, 385 U.S. 20

CE LN ako OSs WG RANA Wh belo e haces 19n

Bhd. of Railroad Trainmen v. Chicago

River & 1. RR. COc, O52 U.b. 30

(LIST) ccccccccccccccccccccccccccce 28,29,30,

| She, 59, 36

Bhd. of Railroad Trainmen v. Jackson-

ville Terminal Cc., 394 u.S. 369

(1969), rehearing denied, 394 U.S.

2024 (1969) .cccccccccccvccccccccee 21,246,25,

28n

Bhd. of aaa ey Clerks v. Florida E.C.

ey; 7 - RT Dabaed 646m 6 37

Boys Market v. Retail Clerks Union,

See Waa SRO LEO TOT 6s ke 040066 de os i BR ky

35

Buffalo Forge Co., v. United

Steelworkers, 428 U.S. 307

CLOTC) cc ccccccccccccccccceses 7,9,10,11,13,

18,19n, 20,21, 32,

Chicago & I.M.Ry. Co. v. Bhd. of

ilroad Trainmen, 315 F.2d

5 3), vacated

as moot, 375 U.S. 18 (I963)..

Chicago & N.W. Ry. Co. v. United

Transportation Union, 402 U.S.

570 aera «ae eoeeeeeee ee eee eee

Detroit & Toledo RR. v. United

Transportation Union, 396

UeBe 142 Tete mb ww See 6 hemes

Gunther v. San Diego & A. E. Ry.

Co., 382 FF sey (I965).....

Northwest Airlines, Inc. v. ALPA,

-Supp. 994 (D. Minn.

1970), 442 F.2d 246 (8th Cir.

1970), 442 F.2d 251 (8th Cir.

1971), cert. denied, 404 U.S.

CVA SAS eel 64 428s Ode ct dtaee

Se & N. W. R. 62

U.S. Q RT hb 6 dake Ch eke

Piedmont Aviation, Inc. v. ALPA,

416 F.2d 633 (4th Cir. 1565),

cert. denied, 397 U.S. 926

GRR Cl ccs okies sad onuews

Ruby v. TACA International Air-

~ Tines, S.A., 439 F.2d 1359

(5th Cir. SP Eiak ck a chiteces

Order of Railroad ES

Oe,

33,34,35

19n

24

33

34

19n

24

36n

33

-%

-vi-

Page

Sinclair Refining Co. v. Atkinson

370 U.S. 195 1562) 2. 30,34; 35

Textile Workers Union of America

v. Lincoln MilIs of Alabama,

353 U.S. 443 SORT bwdis shied oie 30

United Industrial Workers v.

Board of Trustees, 351 F.2d

» © a ass bite bo 'ar ate 33

United Steelworkers of America

v. American Mfg. Co., 363 U.S.

564 NT oO Had Oe we bebe bbe oa 30n

United Steelworkers of America

v. Warrior & re

Co., mie e*eeeee 30n

United Steelworkers of America

V. n oe eel & Car

Corp., . . ere 30n

Statutes:

Labor Management Relations Act,

as amended, 29 U.S.C. §141,

= AAS ES ee 10,13,14,18,

19n,21,23,24,25,28,29,

JU Sky oe, oe, oD

Norris-LaGuardia Act, 29 U.S.C.

§101, ns ¢bc4¢ Fe was secede BH ara

28,29, 37

Railway Labor Act, 45° U.S.C. §15l1,

ee Since ew vw we 8 beh 6 Woe dah alall 25 6,8,9,10,

49,44,47,16, 590 25,22;

5, 24,40; 41,200, 5450.

33 ,34,36,37

-vii-

Miscellaneous:

Annual Reports of the National

POGEMCIOR BOOTS. 6 ck cca wes

Frankfurter and Greene, The Labor

SeeO aan OR PD, soa kb a 0s

The Railway Labor Act at Fifty,

ationa ediation Board

14,22n

28n

22n

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, AFL-CIO,

Petitioner,

Vv.

TRANS INTERNATIONAL AIRLINES,

INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF AP-

PEALS FOR THE NINTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Ap-

peals, as modified June 2, 1980 (App. A)

ae.

and the order of the Court of Appeals deny-

ing rehearing and further modifying the

Opinion (App. B) are not yet reported.*

The District Court issued three

opinions (App. C, D, E), which are respect-

ively reported at 96 LRRM 2763 (N.D. Cal.

1977); 439 F.Supp. 184 (N.D. Cal. 1977);

and unreported (N.D. Cal. 1977). The

District Court judgment is set forth at

App. F.

JURISDICTION

On February 14, 1980, the Court

of Appeals entered its opinion affirming

in part, reversing in part, and remanding

for further proceedings. Timely petitions

for rehearing were filed by all parties.

*References designated "App." are to the

Appendices to this Petition.

a Be

On March 14, 1980 and June 2, 1980, the

Court of Appeals entered orders modifying

the February 14, 1980 opinion in part.

(See App. A for opinion as modified June

2, 1980).* On June 27, 1980, the Court

of Appeals entered an order denying re-

hearing and further modifying the June

2, 1980 opinion. (App. B). This Court

has jurisdiction to review the judgment

of the Court of Appeals by writ of

certiorari pursuant to 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

The pertinent provisions of

the Norris-LaGuardia Act, 29 U.S.C. 101

et seg. and the Railway Labor Act, 29

*App. A-l contains the March 14, 1980

modifications to the Februry 14

opinion, since these modifications were

not included in the June 2 opinion be-

cause of oversight.

oe

U.S.C. §151, et seq., are set forth at Ap-

pendix G.

“<5

STATEMENT OF THE CASE

This case presents the important

question of federal Court jurisdiction to

enjoin Railway Labor Act ("RLA") employees

(pilots and flight engineers) from honoring

picket lines (engaging in a "sympathy

strike") in support of other employees

(flight attendants) of the same carrier

who are engaged in a legal RLA strike.

Respondent Trans International

Airlines, Inc. ("TIA") is a large sup-

plemental air carrier.* Petitioner Air

Line vilots Association, International

("ALPA") is a nationwide labor organiza-

tion which is the certified collective

bargaining representative for TIA's

pilots. The International Brotherhood

of Teamsters ("IBT") is a labor

*TIA is wholly owned by the Transamerica

Corp. and has since changed its name to

Transamerica Airlines.

organization which represents TIA's flight

engineers and, at the time of the strike,

also represented TIA's flight attendants.

(App. A, p. 3a).

In September 1977, TIA's flight

attendants, after exhausting the "major

dispute" procedures of the RLA, struck

the airline. TIA's pilots and flight

engineers immediately sought to honor the

flight attendants' strike and refused to

cross their picket lines. (App. A, p.7a).

TIA applied to the District

Court for an injunction prohibiting the

flight attendants from striking and the

pilots and flight engineers from honoring

their picket lines.* The District Court

¥TIA filed two complaints. The first

complaint sought relief against the

flight attendant strike. ALPA is not a

party to that action. The second com-

plaint sought an injunction against

ALPA and IBT honoring of flight at-

tendant picket lines.

denied a preliminary injunction against

the flight attendant strike, except for

military contract flights. (App. C, p.

14c). The injunction against striking

military contract flights was based upon

"no strike" provisions in the last IBT

flight attendant contract. (App. C,

p.i3e). The result was that the flight

attendants were free to strike all non-

military flights of the airline.

With respect to pilots and

flight engineers, the District Court

denied a preliminary injunction against

honoring picket lines, except as to mil-

itary contract flights. (App. D). The

District Court found "compelling reasons"

for holding that the Norris-LaGuardia Act,

29 U.S.C. §101 et seg. prohibited an in-

junction against the sympathy strike and

that the reasoning of Buffalo Forge Co.

v. United Steelworkers, 428 U.S. 397

(1976), should be applied under like cir-

cumstances to RLA employees. (App. D, p.

15d). Concerning military contract flights,

the Distvict Court reasoned that the pilots

and flight engineers should be enjoined

from a "Sympathy strike" since the under-

lying flight attendant strike against mil-

itary flights had been enjoined. (App. D,

p. 19d). After a further hearing, the

District Court sustained its earlier order,

rejecting arguments that TIA lacked the

"clean hands" necessary to obtain injun-

ctive relief. (App. E.).*

On Appeal, the Ninth Circuit

(Judges Goodwin, Kennedy and Wallace) re-

versed the District Court with respect to

both the injunction against the flight

attendant strike on military contract

*¥There were also contempt proceedings

before the District Court against IBT,

in which ALPA was not involved.

flights and the denial of an injunction

against a pilot and flight engineer sym-

pathy strike on non-military flying. (App.

A).* The Court, with Judge Wallace dis-

senting, held that the Norris-LaGuardia

Act deprived the District Court of

jurisdiction to enforce the flight at-

tendant contract clause regarding mil-

itary flights by injunction after ex-

haustion of Railway Labor Act "major

dispute" procedures. (App. A, pp. 29a-

52a). As to honoring of picket lines,

the Court of Appeals, reversing on this

issue, concluded "that not all of the

reasoning of Buffalo Forge applies in

RLA cases and that policies unique to

RLA support jurisdiction to enjoin the

Sympathy strike...." (App. A, p. 6la).

The Court relied on four conclusions:

*Appeals by ALPA, IBT and TIA were

consolidated and decided together.

=1O-

1. Legislative history of the

RLA, presumably applicable to sympathy

strikes, suggests intent to prevent small

groups of employees from disrupting car-

rier operations. (App. A, p. 65a).

2. RLA statutory structure and

requirements for arbitration of employes

grievances ("minor disputes") so dif-

ferentiate RLA employees from employees

covered by the Labor Management Relations

Act, as amended, 29 U.S.C. § 141 et seq.

("LMRA"), as to justify different ap-

plication of Norris-LaGuardia for sym-

pathy strikes. (App. A, pp. 60a-67a).

3. Considerations motivating

the Supreme Court holding in Buffalo

Forge, such as the possibilities of

judicial declarations influencing an

arbitrator or fewer arbitration clauses

in future agreements, "are inapplicable

athe

here." (App. A, p. 63a).

4. The Court of Appeals deci-

sion would only preserve the "status quo"

during arbitration. (App. A, Pp. 67a).

On June 27, 1980, the Ninth

Circuit denied petitions for rehearing

filed by all parties. (App. B.). However,

Judge Goodwin, who concurred in the

original opinion, stated the following

in response to the petitions for re-

hearing:

"I would modify the majority

opinion to hold that a sym-

pathy strike is a major dis-

pute if the work stoppage

with which the sympathy strike

is allied is a major dispute,

I do not read the Railway Labor

Act cases as extending to

major disputes the power to

enjoin." (App. B, p. 2b).

While Judge Goodwin did not char-

acterize this as a dissent, it certainly

Supports the position of ALPA that the

oh Bn

pilots were only joining in the under-

lying "major dispute" and that Norris-

LaGuardia was applicable to ALPA's ac-

tivities. For all practical purposes,

it leaves the Court of Appeals divided

on this issue.

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE COURT OF AP-

PEALS THAT THE FEDERAL COURTS

HAVE JURISDICTION TO ENJOIN RLA

EMPLOYEES FROM HONORING PICKET

LINES IN SUPPORT OF A LEGAL

STRIKE ON THE SAME CARRIER

PRESENTS A QUESTION OF GREAT IM-

PORTANCE. THE NINTH CIRCUIT

DECIDED THIS QUESTION IN A MAN-

NER CONTRARY TO APPLICABLE

DECISIONS OF THIS COURT.

A. The Issue Is Cf Great Importance To

RLA Employees, Carriers, And The

Public

In holding that the Norris-La-

Guardia Act did not deprive the federal

Courts of jurisdiction to enjoin the

uh 3<

honoring of picket lines, the Court of

Appeals relied on its conclusion that

policies unique to the RLA differentiate

RLA employees from employees covered by

the LMRA for this purpose, and, there-

fore, that the reasoning of Buffalo Forge

Co. v. United Steelworkers, supra, did

not apply to RLA cases. That premise

highlights the importance of this case,

for it erroneously places RLA employees

in a drastically inferior position to

management at the most crucial time in

the collective bargaining process and

deprives them of equivalent rights held

by LMRA employees, even though the RLA

and LMRA do not have different underlying

policies for application of the Norris-

LaGuardia Act when sympathy strike

rights are at issue.

The right to honor picket lines

on the same carrier during a legal strike

~14-

is especially important to RLA employees,

who must be organized and bargain on a

"craft or class" basis under the RLA,

rather than having employer-wide bargain-

ing units which may exist under the LMRA.

See RLA, Section 2, Ninth, and Annual Re-

ports of the National Mediation Board

for craft structure charts. Thus, such

employee groups as airline pilots, flight

attendants and mechanics are traditional-

ly represented by separate craft unions

and have separate contracts. Under these

circumstances, the right to honor picket

lines of the striking craft or class is

fundamental to an effective strike.

This strike serves as a start-

ling example of the importance of the

basic right to honor picket lines to

meaningful collective bargaining and an

effective strike for RLA employees.

=15-.

Taking full advantage of the

District Court injunction against a strike

on military flights, TIA rapidly expanded

its military contract flying and began

hiring strikebreakers to replace its

pilots, flight engineers and flight at-

tendants on non-military flights. (App.

A, pp. 24a-28a, fn.6; App. E).

The Court of Appeals affirmed

the ruling of the District Court that

TIA's varied and extensive efforts to

break the strike were legally permissible

methods of countering the employees in a

hard fought labor dispute, based on a

test of relative economic strength,

noting that it was not unusual in this

type of situation for both sides to

resort to the economic weapons legally

available to them. (App. A, p. 25a).

The realities of the collective

atin

bargaining world, which permit the car-

rier to bring its full economic force to

bear on any single craft or class of em-

ployees, mandate that the employees like-

wise be able to join together for common

purposes under the Act. TIA did not

restrict its economic warfare against

any group of employees and it is not

difficult to imagine the disastrous ef-

fects upon the euployees if, as held by

the Court of Appeals, the District Court

had jurisdiction to enjoin pilots and

flight engineers from concerted activity

to honor picket lines.

Under a sympathy strike injun-

ction, TIA would have had available a

full complement of pilots and flight

engineers to operate the airline and

would have needed only to hire flight

attendant strikebreakers to completely

break the strike. Despite their exhaus-

tion of RLA "major dispute" procedures, the

right of the flight attendants to strike

would, in the real world of collective

bargaining, have been completely nullified.

Given this situation, TIA could

easily have turned its back on the striking

flight attendants without the necessity of

even giving serious consideration to reach-

ing a new agreement. Moreover, armed with

a new complement of strikebreaker flight

attendants, TIA could then have turned its

attention in the same manner to the pilots

and flight engineers when their contracts

were up for negotiation. Upon exhaustion

of RLA "major dispute" procedures with

respect to one of these groups, TIA would

have been in a position to confront the

pilots or flight engineers with acceptance

of management's bargaining demands or

striking alone and facing replacement

i

-18-

without support from fellow employees.

This is the situation which RLA

employees face under the Ninth Circuit

decision. It provides carriers with an

undue economic advantage. It is more

likely to encourage breakdowns in the

bargaining process and tests of economic

strength brought on by carriers than

peaceful resolution of disputes.

B. The Decision Of The Court Of Appeals

Is In Conflict With Applicable Deci-

sions Of This Court.

In Buffalo Forge Co. v. United

Steelworkers, supra, this Court held that

Section 4 of the Norris-LaGuardia Act, 29

U.S.C. §104, deprives the federal courts

of jurisdiction to grant an injunction

preventing LMRA employees from honoring

lawful picket lines, expressly rejecting

the employer argument that Norris-LaGuardia

-19-

did not apply because this concerted ac-

tivity was alleged to violate the col-

lective bargaining agreement and con-

stituted a dispute which the union was

required to arbitrate under the doctrine

of Boys Markets v. Retail Clerks Union,

398 U.S. 235 (1970).*

*Prior to Buffalo Forge (1976), Lt can

be said that the Circuits were in con-

flict on the rights of RLA employees

to honor picket lines, just as they

were in conflict as to LMRA employees.

428 U.S. at 404. See Bhd. of Loco-

motive Firemen v. Florida E.c. oe

» 5th Fe an orth-

west Airlines, Inc. v. ALPA, 325 F.

Supp. 997 (D. Minn. 1970); 442 F.2a

246 (8th Cir. 1970); 442 F.2a 251 (8th

Cir. 1971); cert. den., 404 U.S. 871

(1971). Cf. Bhd. Of Railroad Trainmen

v. Atlantic Coast Line R.R., ‘

649 (5th Cir. 1966), aff'd by equally

divided Court, 385 U.S. 20 (1966) and

Chicago & I.M. - v. Bhd. of Railroad

Trainmen, 315 Food 771 (7th Cir. Id63),

vacated as moot, 375 U.S. 18 (1963).

~20-

This Court concluded in Buf-

falo Forge, Supra, 428 U.S. at 407-408,

that the sympathy strike was not over any

dispute between the union and employer

that was even remotely subject to the

arbitration provisions of the contract

and that neither the causes of the sym-

pathy strike nor the dispute underlying

it could be resolved through contract

arbitration procedures.

In this case, TIA's pilots

joined in the flight attendant "major

dispute" by honoring flight attendant

picket lines. The pilots had no dis-

pute of their own which they sought to

settle by the sympathy strike. The is-

sues in the underlying "major dispute"

could not be resolved between TIA and

ALPA.

In this sense, the nature of

«9}-

a "sympathy strike," whether involving

LMRA or RLA employees, is identical. [In

the absence of a showing that Buffalo

Forge was decided on statutory or policy

grounds inapplicable to the RLA, it can

properly be looked to as a guide for

RLA-Norris-LaGuardia application. Bhd.

Of Railroad Trainmen v. Jacksonville

Terminal Co., 394 U.S. 369, 385-386

(1969), rehearing denied, 394 U.S. 1024

(1969). That Buffalo Forge was not de-

cided on grounds inapplicable to the

RLA and “hat the Ninth Circuit decision

is in conflict with decisions of this

Court are best shown in the context of

reviewing the four erroneous conclusions

relied on by the Court of Appeals (pp.

10-11, supra) to support its decision.

2. Legislative History. The

Court of Appeals was wrong in concluding

(App. A, p. 65a) that RLA legislative

x

history suggests intent to prevent a

dispute involving a small number of work-

ers from disrupting operations through

Support from sympathy strikes.* The

Court cites no such legislative history

and none exists; the RLA was adopted by

Congress in 1926 and amended in 1934

largely as proposed by the major labor

organizations.** The labor representa-

*The Annual Reports of the National

Mediation Board, which reflect

strike activity, indicate that

virtually all RLA airline strikes

have involved one of the major

groups of employees: pilots,

flight engineers (now also repre-

sented by ALPA on almost all car-

riers), flight attendants,

mechanics, agents and/or clericals.

There is no regular history of

strikes by small or obscure craft

groups; this case, in any event,

concerns only major crafts and

large groups of employees.

**The 1926 Act was supported by labor

and management; the 1934 amendments

were supported actively by labor,

See The Railway Labor Act At Fifty

(NMB, 1976), pp. 8, 13-14),

23.

tives, careful to preserve their craft

bargaining structure and right to strike,

did not go to Congress with a legislative

proposal enabling management to "divide

and conquer" them through injunctions

against honoring picket lines.

2. Statutory Structure. The

RLA, like the LMRA, was adopted to foster

collective bargaining;-with the strike

recognized as a legitimate factor in the

bargaining process. Congressional intent

was to reduce the possibility of strikes

through the RLA bargaining process. How-

ever, the RLA was never intended to be an

anti-strike law or to be used as a device

for breaking strikes after exhaustion of

"major dispute" procedures. Rather,

once the "major dispute" procedures are

properly exhausted; the RLA, like the

LMRA, contemplates that the parties are

free to engage in economic self-help,

-~24-

which for employees means an effective

strike. See Bhd. of Railroad Trainmen

v. Jacksonville Terminal Co., supra,

394 U.S. at 377-381 and cases cited

therein.

It has never been disputed that

the Norris-LaGuardia Act applies to RLA

"major disputes." See, for example,

Order of Railroad Telegraphers v.

Chicago & N.W.R. Co., 362 U.S. 330 (1960);

Bhd. of Railroad Trainmen v. Jacksonville

Terminal Co., supra; Chicago & N.W. Ry.

Co. v. United Transportation Union, 402

U.S. 570 (1971).

Likewise, this Court has never

distinguished the LMRA from the RLA in

a manner adverse to employees in terms

of picketing activity during a strike.

In Jacksonville Terminal, supra, 394 U.S.

at 385-386, this Court, looking to the

n25~

LMRA for guidance, stated that the right

to strike is "integral" to both labor

statutes. 394 U.S. at 385. The Court

rejected the contention that the right

to picket was inconsistent with the public

41 erest in industrial peace fostered by

either the RLA or LMRA, stating that

"picketing has traditionally been a

major weapon to implement the goals of

a strike" under the LMRA. The Court

added:

"We see no possible grounds

for distinguishing picketing

under the Railway Labor At,

Peaceful primary strikes and

picketing incident thereto

lie within the core of

protected self-help under the

Railway Labor Act." 394 U.S.

at 385-386.

In fact, Jacksonville Terminal

indicates that employees covered by the

RLA enjoy broader rights to self-help than

those under LMRA, holding that the RLA

-26-

contains no proscription against second-~

ary picketing. In this context, the

Court admonished that it was "for Con-

gress, and not the courts, to strike the

balance 'between the uncontrolled power

of management and labor to further their

respective interests' ...The Congress

has not done so." 394 U.S. at 392. Cf.

ALPA v. Civil Aeronautics Board, 502

F.2d 453 (D.C. Cir. 1974, cert. den.

420 U.S. 972 (1975). Moreover,.the

Court made it clear that these principles

applied not only to state courts but con-

stituted "paramount federal policies of

nationwide import." 394 U.S. at 382.

The right to picketing is useless to

striking employees if those to whom the

picketing is directed - their fellow em-

ployees - can be enjoined from honoring

the picket lines.

Although the Court of Appeals

a

gave full significance to Norris-La-

Guardia in dealing with the flight at-

tendants themselves (App. A, pp. 29a-55a),

it took a completely opposite direction

as to honoring of their picket lines.

The Court should have treated this

labor dispute as a single entity, ac-

knowledging that the pilot sympathy

strike was an integral part of the under-

lying "major dispute." Instead, the

Court of Appeals was sidetracked by

TIA's claim of a separate "minor dis-

pute” into applying its own viewpoints

on permissable limits for union strike

activity which artificially divided the

strike into separate RLA "Major" and

"Minor" disputes - an irrational dis-

tinction with no economic or legal

basis and precisely what Congress sought

to prohibit by Norris-LaGuardia.* The

*As to the prohibition embodied in

Norris-LaGuardia against the Federal

=a2Re

Court of Appeals erred by (a) extending

the doctrine of Bhd. of Railroad Trainmen

v. Chicago River & I.R.R., 353 U.S. 30

(1957) beyond its holding and (b) con-

cluding that the differing statutory

basis for grievance arbitration in the

RLA and LMRA justified an exemption to

Norris-LaGuardia.

Chicago River involved a strike

to force the carrier to give in on 21

classic employee contract grievances

for backpay, promotion and reinstatement.

Reviewing RLA legislative history, the

Supreme Court found that this type of

employee grievance (or "minor dispute")

Courts determining the nature oF

permissable peaceful strike ac-

tivities, see Jacksonville Terminal

Co., supra, 394 U.S. at 382-3583;

Frankfurter and Greene, The Labor

Injunction (1930).

~29-.

against the carrier was intended to be

subject to "compulsory arbitration in

this limited field." 353 U.S. at 39.

Turning to reconciliation of this prin-

ciple with Norris-LaGuardia, the Supreme

Court held only that the basic purposes

of Norris-LaGuardia would not be com-

promised by enjoining strikes over

normal employee grievances. The Court

of Appeals overlooked that the Supreme

Court carefully distinguished this

grievance situation from the classic

"Major dispute" where Norris-LaGuardia

precluded federal court intrusion,

stating:

"Such controversies, there-

fore, are not the same as

those in which the injunction

strips labor of its primary

weapon without substituting

any reasonable alternative."

3353 U.8. at 41.

When Chicago River was decided,

the policy favoring grievance arbitration

~S00

under the LMRA was judicially undevelop-

ed.* But Textile Workers Union of America

v. Lincoln Mills of Alabama, 353 U.S. 448

(1957), decided shortly after Chicago

River, began the sharp erosion of this

distinction. This was followed by the

Steelworkers Trilogy, ** with its doctrine

of presumption of arbitrability (see War-

rior & Gulf, 363 U.S. at 582-83). By the

time of Sinclair Refining Co. v. Atkinson,

370 U.S. 195 (1962), Justice Brennan, dis-

senting, relied heavily on Chicago River

in a then unsuccessful argument for en-

joining LMRA "strikes over disputes as to

~*IMRA Section 203(d), 29 U.S.C. § 173d),

embodies the statutory policy for

grievance arbitration under LMRA.

**United Steelworkers of America v.

American Mfg. Co., 3603 U.S. 564 (1960) ;

United Stectworkecs of America v. War-

rior & Gulf Navigation Co., 363 U.S.

572 (1960); United Steelworkers of

America v. Enterprise Wheel & Car Corp.,

eS. 593 (1960).

=) es

the interpretation of an existing col-

lective agreement...." 370 U.S. at 218.

In 1970, the reasoning of Chicago

River became the law under LMRA in Boys

Markets v. Retail Clerks Union, supra.

The Court of Appeals overlooked that

Justice Brennan, now writing the majority

opinion overruling Sinclair Refining Co.,

actually confirmed that the distinction

between RLA and LMRA statutory provisions

underlying grievance arbitration was no

longer meaningful:

"The principles elaborated in

Chicago River are equally ap-

plicable to the present case.

To be sure, Chicago River in-

volved arbitration procedures

established by statute. How-

ever, we have frequently noted,

in such cases as Lincoln Mills,

the Steelworkers Trilogy and

Lucas Flour [369 U.s. 35). the

importance that Congress has

attached generally to the

voluntary settlement of labor

disputes without resort to

self-help and more particularly

to arbitration as a means to

|

this end. Indeed, it has been

stated that Lincoln Mills, in

its exposition of §30I (a), 'went

a long way towards making arbi-

tration the central institution

in the administration of col-

lective bargaining contracts.'"

398 U.S. at 252.

The Court of Appeals was thus

wrong in concluding (App. A, pp. 60a-67a),

that the requirements for arbitration of

employee grievances under the RLA, as

construed by Chicago River, so differ-

entiate RLA employees from LMRA employees

that the two statutes can be said to have

different underlying policies when sym-

pathy strike rights are at issue.

3. Buffalo Forge Decision. The

Court of Appeals erred by ignoring the

crucial finding in Buffalo Forge that

"[t]he strike at issue was a sympathy

strike in support of sister unions nego-

tiating with the employer; neither its

causes nor the issue underlying it was

-~33-

subject to the settlement procedures

provided by the contracts...." 428 U.S.

at 407-408. This is equally applicable

to RLA sympathy strikes.*

Just as this Court concluded

that the principles of Chicago River were

applicable in Boys Markets, the prin-

ciples underlying Buffalo Forge are ap-

plicable to RLA sympathy strikes. It

is only by following the Buffalo Forge

doctrine that RLA unions are not strip-

ped of their "primary weapon" - an ef-

fective strike - "without substituting

any reasonable alternative." Chicago

River, supra, 353 U.S. at 41.

*TTA'S assertion of a "minor dispute”

is a well-known management tactic in

RLA disputes, which has been recog-

nized previously as such by the

Courts. See United Industrial Work-

ers v. Board of Trustees, 351 F.2d

I83, 185, n. 25 (5th Cir. 1965); Rub

v. TACA International Airlines, oie «

439 F. ’ Ze ;

Detroit & Toledo R.R. v. United

ransportation Union, 396 U.S. 142

(1969).

~34-

The Court of Appeals (App. A,

p. 62a), points to the concern of this

Court in Buffalo Forge on dangers of

premature judicial intrusion into the

arbitrator's domain in a sympathy strike

case. Whether or not this was a motivating

factor in this Court's decision, the Court

of Appeals was wrong in overlooking that

the exact same considerations are ap-

plicable to RLA labor disputes. An

arbitrator functioning under an RLA

agreement has no less exclusive re-

sponsibility to decide a grievance than

an arbitrator serving with LMRA parties.

See Bhd. of Locomotive Engineers v.

Missouri - K.-T. R. Co., 363 U.S. 528,

533 (1960); Gunther v. San Diego & A.E.

Ry. Co., 382 U.S. 257 (1965). Since the

same professional labor arbitrators

function under RLA and LMRA contracts,

they are presumably subject to the same

«3$-

judicial influences regardless of the

company's status under labor law.*

In addition, the Court of Ap-

peals speculates (App. A, Pp. 62a) that

the Supreme Court in Buffalo Forge may

have been "worried" that a contrary re-

sult would lead to fewer LMRA arbi-

tration clauses. There is absolutely

no support for this hypothesis in the

Buffalo Forge opinion. Indeed, even if

this were an accurate observation, it

would appear that the damage was done

by Boys Markets, overruling Sinclair

Refining Co.

yy Status Quo Order. The

Court of Appeals further misapprehended

*The Court of Appeals, without ration-

ale, went so far in its decision as

to comment on contract interpretation.

(App. A, p. 7la, fn. 14). ‘This was

plain error.

atin

(App. A, p. 69a) the effect of its deci-

sion by conclusions that the type of

"minor dispute" injunction which it

authorized merely preserves the "status

quo" under RLA precedent.

~

It may be possible to restore

the status quo ante in a classic Chicago

River case where the underlying dispute

can be resolved through arbitration, but

this is impossible in a sympathy strike

case.* The strike goes on; carrier self-

*¥The issue in Bhd. of Locomotive Engineers

v. Missouri - K.-T. R. Co., supra, cited

by the Court of Appeals (App. A, p. 69a),

was whether the district court had juris-

diction to require the carrier to maintain

the status quo ante in a "minor dispute"

as a condition of enjoining a strike

over the grievances. In Piedmont Aviation,

Inc. v. ALPA, 416 F.2d 633, 639 (4th cir.

1969), cert. den. 397 U.S. 926 (1970),

the Court of Appeals conditioned an in-

junction against a strike in a "major

dispute" on restoration of the status

uo ante. However, this cannot be done

Or a sympathy strike; the underlying

dispute goes on and cannot be resolved

between the sympathy strikers and manage-

ment.

a37=

help continues; strikebreakers are

hired. By the time an arbitrator

vindicates the rights of the sympathy

strikers and the injunction is vacated,

the strike is likely to be broken for

all practical purposes. This kind

of situation is exactly what motivated

Congress to adopt Norris-LaGuardia.

See Frankfurter and Greene, supra. As

recognized by the Supreme Court in

another context, the availability of

injunctive relief under such circum-

stances creates strong employer incen-

tive to make the RLA bargaining process

a sham, provoke a strike, prolong the

dispute, and break the union. Bhd.

of Railway Clerks v. Florida E.c. Ry.,

384 U.S. 238, 246 (1966).

CONCLUSION

The Petition for a Writ of

Certiorari should be granted.

= ¥8..

Respectfully submitted,

ROBERT S. SAVELSON

MICHAEL E. ABRAM

COHEN, WEISS and SIMON

605 Third Avenue

New York, New York 10158

Tel.: (212) 682-6077

Attorneys for Petitioner

AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, AFL-CIO

Cohen, Weiss and Simon

Of Counsel

September 1980

APPENDIX A

la

APPENDIX A

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff-Cross-Appellant,

v.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

etc., Airline Division Teamster Local

2707; Marvin G. Griswold; Teamster

Local taae

Defendants-Cross-Appellees.

TRANS INTERNATIONAL AIRLINES INC.

_—

Plaintiff-Appellee/Cross

Appellant,

Vv.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

et al., Airline Division, Teamsters

Local 2707, and Air Line Pilots As-

sociation, International, AFL-CIO,

Defendants-Appellants/Cross

Appellees.

Nos. 77-3362, 77-3363, 77-3395, 77-3781,

78-1148 and 78-1232.

United States Court of Appeals,

Ninth Circuit.

Feb. 14, 1980.

As Amended June 2, 1980.

2a

Appeal from the United States Dis-

trict Court for the Northern District of

California.

Before GOODWIN, WALLACE, and KENNEDY,

—_—~

Circuit Judges.

KENNEDY, Circuit Judge:

This case requires a determination,

among other matters, of the extent to which

the anti-injunction mandate of the Norris-

LaGuardia Act, 29 U.S.C. §§ 101 et seq., is

applicable to common carriers and collective

bargaining units subject to and regulated by

the Railway Labor Act (RLA), 45 U.S.C. §§ 151

et seq. The RLA extends to airlines, 45

1. Although we ultimately hold that the

Norris-LaGuardia Act deprives the federal

courts of jurisdiction to enjoin the

primary strike in this case, federal

question jurisdiction is conferred by 28

U.S.C. §§ 1331 & 1337, since the enforce-

ability of the contract clauses at issue

and the propriety of granting injunctive

relief arise under the various sections

of RLA, 45 U.S.C. §§ 151 et seq.

3a

U.S.C. §§ 181-188, and Trans International

Airlines (TIA), a principal party in this

case, is one of the nation's largest sup-

plemental air carriers. On November 30,

1976, TIA merged with Saturn Airways. The

company operates separate flights for

military and civilian carriage, transport-

ing passengers and freight on both kinds

of flights. At issue are two strikes

against TIA, a primary strike by TIA's

flight attendants and a sympathy strike by

its flight engineers and pilots. At the

time of the events in question both the

flight attendants and the engineers are re-

presented by the International Brotherhood

of Teamsters, Airline Division (Teamsters).

TIA's pilots are represented by the Air’

Line Pilots Association (ALPA), which also

represented the premerger Saturn pilots.?

2. The Teamsters and ALPA stand in the

same position with regard to the

4a

The company obtained federal injunctive re-

lief prohibiting both strikes to the extent

they were directed to military flights, but

the district court did not enjoin the

strikes against civilian flights. Both the

company and the affected Teamsters unions

appeal from the rulings.

The contract negotiations between

the Teamsters and the company, and the sub-

sequent strikes, have the following history.

TIA and the flight attendants were parties

to a collective bargaining agreement for

the period July 21, 1974 to April 1, 1976.

The agreement contained a general no-strike

Clause, effective "during the term of

this agreement." At the heart of the dis-

pute over the legality of the primary strike

lie further contract provisions, by which :

the parties agreed there would be no strikes

onal

sympathy strike issues addressed be-

low. Where appropriate, we use

"Teamsters" or "the union" to refer

to ALPA as well as the Teamsters.

5a

against military flights and that this

clause was effective "after the expiration

of this agreement and/or during and after

procedures of the Railway Labor Act have

been exhausted. . .."2 In February of 1976

3. The relevant contract provisions provide:

ARTICLE XII

No Strike-No Lockout

Section A. During the term of this

Agreement, the Union shall not authorize,

cause, sanction or engage in any strike,

picketing, slowdown or stoppage of work.

Section B. During the term of this

Agreement, the Company shall not cause,

permit, or engage in any lockout of its

Flight Attendants.

Section C. During the term of this

Agreement, the Company reserves the

right to discharge or otherwise discip-

line any Flight Attendant taking part

in any strike, picketing, slowdown or

stoppage of work.

Section D. The Union further agrees

that the Flight Attendants will continue

to perform all du‘ ies which are neces-

Sary to enable th. Company to operate

flights for or in support of traffic

sponsored by the Department of Defense

of the United States of America, even

6a

the Teamsters, acting for the flight at-

tendants, served a notice of intent to

amend the agreement. Under the Railway

Labor Act this is a section 6 notice,

which signals the union's intent to

negotiate a new employment agreement.

45 U.S.C. § 156. The contract expiration

date (April 1, 1976) arrived without the

parties having reached accord. Pursuant

to the provisions of the Railway Labor

Act, the agreement remained in force

during the dispute resolution procedures

though such Flight Attendants withdraw

from commercial airline service be-

cause of a dispute arising out of ne-

gotiations for a new contract after

the expiration date of this Agreement

and/or during and after all procedures

of the Railway Labor Act have been

exhausted, provided the Company shall

submit to the Union, when requested,

proof that a particular flight is

being flown or operated under charter

or contract to the Department of De-

fense.

7a

set in motion by the section 6 notice.

See id. Further negotiations between

the parties produced no agreement, and

a mediator was assigned by the National

Mediation Board on August 19, 1976.

The union refused voluntary

arbitration, the mediator withdrew, and

after expiration of the statutory 30-

day cooling off period expired at mid-

night, September 7, 1977, the flight

attendants struck all flights. fTIA's

flight engineers and pilots, in a

sympathy strike, honored the flight at-

tendants' primary strike and refused to

cross the picket line.

TIA applied to the district

court for an order prohibiting these

groups of employees from striking. The

district court ultimately granted a

preliminary injunction prohibiting the

flight attendants from striking TIA's

8a

military flights, but denied an injunction

prohibiting flight attendants from striking

TIA's other operations. A similar injunction

was issued against the flight engineers and

pilots, enjoining the Sympathy strike as to

military flights only.

In this court, the Teamsters moved

to stay the military strike injunctions, and

TIA moved for temporary Sissies relief

pending decision of the appeal. Oral argu-

ment on these motions was heard by this

panel. In addition to the motions for

preliminary relief, the principal appeal

from the district court's preliminary in-

junctions is pending before this circuit.

Further, TIA and ALPA have filed separate

appeals. Some of the issues raised in

these appeals were not argued in the par-

ties' motions for interim relief. Con-

cluding, however, that further oral argu-

ment in these cases is unnecessary, these

9a

appeals, Nos. 77-3362, 77-3363, 77-3395,

77-3781, 78-1148 & 78-1232 are considered

submitted to this panel on the date of

filing of this opinion, and their disposi-

tion is controlled by this opinion.

In general, three contentions

are advanced by the parties. First, quite

apart from the argument that federal courts

are prohibited by statute from enjoining

the strikes, the Teamsters contend that TIA

was not entitled to seek a preliminary in-

junction because the company's actions

during the strike were so unfair that the

company had unclean hands. In summary ,

the Teamsters claimed that TIA improperly

Stranded flight attendants at foreign ports;

hired replacements; expanded the number of

military flights (which the district court

had enjoined the flight attendants, engi-

neers and pilots from striking); terminated

pilots for refusal to fly commercial planes

10a

or for other carriers; refused sick pay and

monthly guarantees to strikers; and violated

seniority rights in the selection of pilots

for the military flights.

Second, TIA argues that the Team-

sters' conduct during the course of the

major disputes mediation procedures violated

section 152 First of the RLA, which requires

parties "to exert every reasonable effort

to make" a collective bargaining agreement.

If that were so, there would be authority

to enjoin the strike and require the Team-

sters to return to the bargaining table.

See Chicago & N. W. Ry. v. United Trans-

,

portation Union, 402 U.S. 570, 91 S.Ct.

1731, 29 L.Ed.2d 187 (1971). The principal

bases of TIA's claim are (1) that the Team-

sters, in the process of negotiating the

integration of the premerger Saturn and TIA

flight attendant agreements, more than

doubled the number of proposals on the

lla

bargaining table by requesting approxi-

mately 200 contract changes after a year

of negotiations and six months prior to

the strike, and (2) that the cost of the

Teamsters' initial proposal for flight

attendants exceeded 250% of TIA's then-

present payroll costs for TIA flight at-

tendants, and its proposals after media-

tion by the National Mediation Board ex-

ceeded 200% of TIA's total company-wide

profits for 1976 and represented a 294.6%

increase in flight attendant payroll

costs.

Finally, even if enjoining the

Teamster's strike was not proper because

of the union's bargaining tactics, TIA

contends an injunction against strikes of

military flights was proper because, among

other reasons, the various groups of em-

ployees had promised not to strike TIA's

military operations, even after bargaining

l2a

under the RLA's disputes resolution pro-

cedures had been exhausted, and that an

injunction against the sympathy strikes

was proper pending minor dispute arbi-

tration of the legality of the strikes.

The strikes which were the

subject of this lawsuit have been set-

tled, and a new collective bargaining

agreement was signed on January 12,

1978.4 we must first decide whether

this appeal is not moot.

We hold these appeals are not

moot, primarily because resolution of

the issues presented is crucial to de-

ciding a substantial pending claim for

damages sought by TIA against the Team-

sters. The district court's preliminary

4. The contracts between TIA and its

flight attendants, engineers, and

pilots contain the same military

no-strike clause which is discussed

at greater length below.

l3a

injunctions were entered on September 26,

1977, and September 28, 1977. On. October

26, 1977, the district court entered a

further order in which it rejected the

Teamsters' and ALPA's claim that TIA had

"unclean hands" and thus was not entitled

to the injunctions. This order formed the

basis for appeals number 78-1148 and 78-

1232. The Teamsters continued to urge em-

ployees to strike military flights. On

November 1, 1977, the Teamsters were ad-

judicated in contempt of the district

court's orders. TIA alleges its military

operations were virtually shut down by

striking flight attendants and flight

engineers, causing TIA approximately

$400,000 in compensatory damages which it

still seeks to recover from the Teamsters.

The matter of compensatory fines was stay-

ed by the district court on January 24,

1978, "pending the results of the appeals

l4a

before the Court of Appeals for the Ninth

Circuit in TIA v. Teamsters, Nos. 77-3362/

3363/3395/3781."

Thus, the right of TIA to recover

its alleged damages and the extent of recov-

ery will be controlled, in part, by resolu-

tion of the overriding issue in these ap-

peals: whether TIA was entitled to injunc-

tive relief against either the primary or

the sympathy strike. See, e.g., Lewis v.

S. S. Baune, 532 F.2d 1115, 1119 (5th Cir.

1976) ("A judgment of civil contempt, being

remedial in nature, stands or falls with the

validity or invalidity of the order, and

the opposing party should be compensated

only if he was entitled to the order.");

Latrobe Steel Co. v. United Steelworkers,

545 F.2d 1336, 1345-46 (3d Cir. 1976).

Under these circumstances this appeal

presents a live case or controversy for our

decision.

15a

The Teamsters agree that if the

compensatory fine proceeding is permitted

to continue, the issues presented on this

appeal must be decided. They conclude,

however, that we should order dismissed the

contempt proceedings as well as these ap-

peals. The Teamsters' argument is es-

sentially this: in evaluating whether the

controversy presented by this appeal from

the original orders is moot, this court

may not examine the posture of the pending

contempt proceedings. We should, it is

argued, decide whether this appeal is moot

without reference to the possibility of

damage liability in the contempt proceed-

ings below, and if we determine the case

is moot we should also instruct the dis-

trict court to dismiss the contempt pro-

ceedings. We disagree with that reasoning.

The Teamsters contend we are

governed by Gompers v. Buck's Stove &

l6a

Range Co., 221 U.S. 418, 31 S.Ct. 492, 55

L.Ed. 797 (1911). Procedurally Gompers

does resemble this case. The company had

secured an injunction against a boycott.

Appeals were taken from this injunction.

Before the appeal was decided, the company

initiated contempt proceedings, and the

defendants were adjudicated in contempt

and sentenced to jail sentences. The

original injunctive decree was upheld by

the court of appeals, and some time later

the contempt adjudication was also af-

firmed. By the time the appeals from the

original injunction reached the Supreme

Court, the parties had settled their dif-

ferences. The Court accordingly dismiss-

ed the appeal as moot. Buck's Stove &

Range Co. v. American Federation of Labor,

219 U.S. 581, 31 S.Ct. 472, 55 L.Ed. 345

(1911). Thereafter the Court also dis-

missed the appeal of the contempt adju-

dication as moot. It held:

17a

(W]hen the main cause was terminated

by a settlement of all differences

between the parties, the complainant

did not require and was not entitled

to any compensation or relief [in the

contempt proceedings].

221 U.S. at 451-52, 31 S.ct. at 503.

Gompers has subsequently been refined, see,

€.g., Backo v. Carpenters Local 281, 438

F.2d 176, 182 (2d Cir. 1970), cert. denied,

404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2a 99

(1971), but we think the Teamsters' discuss-

ion of Gompers and its progeny ignores a

crucial distinction between that case and

the instant case.

In Gompers, the parties had

entered into a settlement which completely

resolved all matters involved in the litiga-

tion between them. 221 U.S. at iS ee bE

S.Ct. at 502; 219 U.S. 581, 31 S.ct. 472

(1911). The determinations of mootness

were predicated on this finding. In our

case, by contrast, there has been no out-

of-court settlement by the parties of

18a

"every material controversy which the re-

cord present[s]." 219 U.S. at 581, 31 S.Ct.

at 472. The strike has ended and the par-

ties have signed a new collective bargain-

ing agreement, but this does not constitute

a settlement of the controversies which

Spawned this litigation. A recent third

circuit case illustrates the point. In

Bituminous Coal Operators' Association,

Inc. v. U. M. W., 585 F.2d 586 (3d Cir.

1978), the employer had sued for both in-

junctive relief and damages. While the

appeal from the district court's orders

was pending, the collective bargaining

agreement which was allegedly breached

expired and a new agreement was signed.

The Union argued that this development

mooted the case; the court of appeals

disagreed:

We note at the outset that the

expiration of the 1974 agreement

and the execution of the 1978

agreement have not mooted a

19a

Claim for damages by the mine

owners.

Id. at 599.

The possibility of compensatory

damage liability in this case arises from

the civil contempt adjudication and not,

as in Coal Operators, from a damages

action under the NLRA. We perceive no

constitutional distinction in this fact.

Cf. Latrobe Steel Co., supra, 545 F.2d at

1345-46. A proceeding for civil contempt

is part of the original action. See,

€.g-, Gompers, supra, 221 U.S. at 444-45,

31 S.Ct. at 499-500. For purposes of

determining whether a live controversy

exists on this appeal from the injunctive

orders of the district court, we may con-

sider the fact that the Union has been

adjudicated in civil contempt of those

orders, and that imposition of substantial

compensatory damages depends on resolution

of the issues presented on this appeal.

20a

Cf. also American Bible Society v. Blount,

446 F.2d 588 (3d Cir. 1971); Meyers v. Jay

Street Connecting Railroad, 288 F.2d 356

(2a Cir. 1961).°

5. Moreover, even were there no possibility

of damages recovery in the further dis-

trict court proceedings, this appeal

probably would not be moot under the

"Capable of repetition, yet evading re-

view" standard as elaborated in recent

cases such as Weinstein v. Bradford,

423 U.S. 147, 96 S.Ct. 347, 46 L.Ed. 2d

350 (1975), Super Tire Engineering Co.

v. McCorkle, TG Use. 2a3> 34 SCE,

1694, 40 L.Ed.2da 1 (1974), and Illinois

State Board of Elections v. Socialist

Workers Party, 440 U.S. 173, 99 S.Ct,

983, 59 L.bd.2da 230 (1979), Amalgamated

Transit Union v. Greyhound Lines, inc.,

, 1238 n.l (Sth Cir.),

cert. denied, 434 U.S. 837, 98 S.Ct. 127,

Ed. 9 (1977), and Bituminous

Coal Operators' Association, Inc. v.

U. M a 585 F.2d 586, 599-600 (3d

° . ae J . ,

Cir. 1978). Under these cases, a chal-

lenged action is not moot when:

(1) the challenged action was in

its duration too short to be ful-

ly litigated prior to its ces-

sation or expiration, and (2)

there (is) a reasonable expec-

tation that the same complaining

party would be subjected to the

same action again.

2la

The Teamsters raise another, more

limited, mootness argument. They con-

tend TIA's appeal from the district

The first prong of this test is met,

as this strike ended before its

legality could be fully litigated.

As the Court has noted, "[T]Jhe

great majority of economic strikes

do not last long enough for com-

plete judicial review of the con-

troversies they engender." Super

Tire Engineering v. McCorkle, TI

U.S. II5, 126, 94 s.Ct. 1694, 1700,

40 L.Ed.2d 1 (1974).

There is also a reasonable ex-

pectation the same complaining par-

ties will take similar action

again. The September, 1977 strike

was not the first strike of TIA by

the Teamsters. In July of 1974,

TIA's flight attendants and flight

crewmembers, both represented by

the Teamsters, struck TIA. Simi-

larly, Saturn Airways, which merged

into TIA, was the object of strikes

by its pilots, represented by ALPA,

in May of 1972. Saturn's flight

engineers, attendants, and

navigators, all represented by the

Teamsters, struck Saturn again in

August of 1974. Saturn secured a

court order requiring the striking

parties to return to work. Further,

the actions of TIA in maintaining

Operations in the face of the

strikes in this case were found by

22a

court's refusal to enjoin a strike

against its commercial operations is moot.

Noting that TIA's flight attendants (but

the district court to be common

methods used by employers, and

presumably reasonably likely to be

used by TIA in the event of another

strike. The Teamsters and ALPA

continue to represent some of the

groups of employees involved in

this lawsuit. Thus the same par-

ties whose conduct is at issue in

this suit will continue to face

each other across the bargaining

table. Moreover, the new contract

signed by TIA and the Teamsters on

January 12, 1978, contains the same

military no-strike clause which is

the principal subject of this

opinion. Finally, although the

bargaining and subsequent strike

giving rise to the instant dis-

pute have been settled, the record

od before us on the issues presented

for decision is no less concrete

than it would be if the strike

were ongoing.

Our reliance on the potential

pending damage liability makes it

unnecessary for us to consider

whether TIA's failure to request

declaratory relief in its original

complaint would affect a decision

regarding mootness, see Coal

Operators, supra, 585 F.2d at 599-

23a

not its engineers) now have a different

bargaining representative (the Association

c€ Flight Attendants), the Teamsters ar-

gue there can be no expectation that TIA

will be subjected again to the Teamsters'

alleged bad-faith bargaining tactics. We

reject this argument. If the Teamsters

did not make a reasonable effort to reach

an agreement during major disputes

bargaining, its strikes against both com-

merical and military flights could be en-

joined. The Union's bargaining conduct

was an alternative ground--in addition

to the military no-strike clause--for the

injunction underlying the contempt order.

For this reason alone, even apart from

our reluctance to fragment this appeal

into "live" and "moot" issues, and the

600; Japan Air Lines Co. v. Inter-

national Association of Machinists,

. , oa ir. -

24a

possibility that the dispute is not moot

under the "capable of repetition yet

evading review" standard, see Weinstein

v. Bradford, 423 U.S. 147, 96 S.Ct. 347,

46 L.Ed.2d 350 (1975); Illinois State

Board of Elections v. Socialist Workers

Party, 440 U.S. 173, 187, 99 S.Ct. 983,

992, 59 L.Ed.2d 230 (1979); Amalgamated

Transit Union v. Greyhound Lines, Inc.,

950 F.2d 1237, 1238 n.1 (9th Cir.),

cert. denied, 434 U.S. 837, 98 S.Ct.

127, 54 L.Ed.2d 99 (1977), the Union's

bargaining behavior is part of the live

case or controversy before us. See Coal

Operators, supra, 585 F.2d at 600.

Turning to the merits, we ad-

dress first the clean hands issue. We

affirm the district court's finding, on

the motion for preliminary relief, that

TIA was not prevented from seeking in-

junctive relief because of its own

25a

conduct. Without explicitly passing on the

accuracy of the Teamster's characterization,

the district court concluded:

TIA's varied and extensive efforts

to continue its operations during

the current strike in an attempt to

defeat the strike ... are all

legally permissible and fairly com-

mon methods of countering the im-

pact of a strike . . . These parties

are engaged in a hard-fought labor

dispute that unfortunately has re-

sulted in a test of their relative

economic strength. In such a

situation, it is not unusual or

unfair for both sides to resort to

all of the weapons legally avail-

able to them.

The activities of which the union complains

are not discussed in detail in the district

court's opinion of October 26, 1977,° but

6. The opinion of the district court was

as follows:

MEMORANDUM AND ORDER RE PILOTS

The facts of this labor dispute

have already been fully set forth

in this court's memoranda of Sep-

tember 26 and September 28, 1977.

Plaintiff TIA now moves for a

preliminary injunction against

26a

the parties have presented their views of

TIA's conduct in their briefs. Having

reviewed their contentions, we cannot

defendant ALPA regarding TIA's

military flights. The matter has

been fully heard by the court and

has been submitted for decision

on the record and pleadings on

file,

The court has heard a substantial

amount of testimony regarding TIA's

varied and extensive efforts to

continue its operations during the

current strike in an attempt to de-

feat the strike. Nevertheless, the

court does not feel that TIA's

actions, which are all legally

permissible and fairly common methods

of countering the impact of a strike,

are so inequitable as to require the

denial of injunctive relief. These

parties are engaged in a hard fought

labor dispute that unfortunately has

resulted in a test of their relative

economic strength. In such a

Situation, it is not unusual or un-

fair for both sides to resort to all

of the weapons legally available to

them.

The court would also like to make

note of an additional matter which

has come to its attention during

these proceedings. The testimony

of Mr. Arthur Perkel of the Military

Airlift Command (MAC) makes it Clear

; 27a

conclude that the district court applied

a legally improper standard or made clear-

ly erroneous findings of fact. On the

that, without specifically intending

to do so, the administration of MAC

expansion business will almost in-

evitably tend to strengthen the

economic position of a struck air-

line, such as TIA, as against its

striking employees. The number of

airplanes freed by a strike against

the airline's commercial flights

allows the airline to seek and ob-

tain a greater proportion of the

available MAC expansion business.

Furthermore, this effect can be

greatly magnified if the cooperation

of other airlines with MAC contracts

can be obtained, as may have been

the situation in this case. Although

this effect troubles the court in

granting this injunction, we do not

feel that this matter is one for

judicial resolution. Rather, such

matters should be taken up with the

proper parties within the executive

branch, such as the Secretary of

Defense and the Secretary of the

Air Force.

Therefore, it is hereby ORDERED

that plaintiff's motion for a

preliminary injunction with regard

to military flights is granted,

for the reasons stated herein and

in the court's memorandum and order

of September 28, 1977. The terms

28a

motion for preliminary relief it was not

improper to conclude that the practices

complained of were not sufficiently like-

ly to be found illegal or otherwise

wrongful that TIA should be prevented

from seeking injunctive relief. See

Illinois Central R. R. v. Brotherhood of

R. R. Trainmen, 398 F.2d 973 (7th Cir.

1968); Brotherhood of R. R. Trainmen v.

Akron & B. B. R. R. Co., 128 U.S.App.

D.C. 59, 92, 385 F.2d 581, 614 (D.C.

Cir. 1968), cert. denied, 390 U.S. S23,

88 S.Ct. 851, 852, 19 L.Ed.2d 983 (1968);

Long Island R. R. Co. v. System

Federation No. 156, 368 F.2d 50 (2d Cir.

1966).

of this preliminary injunction are

to be the same as the temporary

restraining order of September 28,

1977.

Counsel for the plaintiff shall

prepare a proposed form of judgment.

Rule 58, Fed.R.Civ.Pro.

29a

Similarly, we affirm the district

court's finding that the Teamsters did not

violate the obligations imposed by section

152 First in the course of their bargaining

with TIA. The facts allegedly demonstrating

the Teamsters' lack of reasonable effort to

make an agreement have already been de-

scribed. The district court, in finding

no violation, noted that the increase in

the number of Teamster bargaining proposals,

from 61 in early 1976 to over 200 in March

of 1977, was a reasonable response to the

merger between TIA and Saturn:

The testimony heard by the court on

this matter indicates that what the

Teamsters were trying to do with the

introduction of their March, 1977,

proposal was to integrate the old

Saturn and old TIA agreements,

taking the best from both. Since

the carriers were newly merged and

the Teamsters were now representing

a larger group of flight attendants,

it hardly seems unreasonable for

them to modify their previous

proposal substantially to meet the

new conditions.

30a

The court found, "negotiations did not get

under way [] in earnest until approximately

the time the Teamsters introduced their new

proposal," and concluded that the increased

number of proposals was reasonable in light

of the recent merger between TIA and Saturn.

The district court's finding is not clearly

erroneous and must be affirmed. Similarly,

its finding that the assertedly exorbitant

size of the Teamsters' proposals regarding

wages, benefits, and working conditions

did not demonstrate a refusal to make

reasonable efforts to reach an agreement

must, on this record, also be affirmed.

The court held: "The court can find no

previous decision ella the RLA, nor can

TIA suggest one, which has inferred lack

of reasonable effort solely from the size

of the proposals put forth by the parties."

The court noted that the union had reduced

its proposals on two occasions, and

3la

characterized the bargaining as "obstinate

and unyielding" but not in violation of

the statutory standards.

We do not hold that a union's

insistence on proposals of the kind in-

volved here could never be the basis for

a finding that a union did not comply with

its obligations under section 152 First;

but in this case the district court's find-

ing is not clearly erroneous. Cf. REA

Express, Inc. v. Brotherhood of Railway

Clerks, 358 F.Supp. 760, 772 n.43 (S.D.N.Y.

1971) and cases cited therein. Cf. also

Atlantic Coast Line R. R. Co. v. Brother-

hood of Railway Trainmen, 262 F.Supp. 177,

183-85 (D.D.C. 1967).

We are confronted, then, with

TIA's argument that injunctive relief

against the primary strike was appropriate

because of language contained in the col-

lective bargaining agreement. The Teamsters

32a

argue that the district court lacked

jurisdiction to issue the injunction by

reason of section 4 of the Norris-

LaGuardia Act, 29 U.S.C. § 104, main-

taining that once the major dispute

mechanisms of the RLA had been exhausted,

the unions could not be enjoined from

using their full economic power in

Support of their demands. We agree.

The accommodation reached

between the Norris-LaGuardia Act and

the National Labor Relations Act does

not necessarily carry over to disputes

controlled by the RLA. In this regard,

the Supreme Court has stated: "The

relationship of labor and management

in the railroad industry has developed

on a pattern different from other in-

dustries. The fundamental premises

and principles of the Railway Labor

Act are not the same as those which form

the bases of the [NLRA] ...." Brotherhood

of Railroad Trainmen v. Chicago River & I.

R. R., 353 U.S. 39, 31-32 n.2, 77 S.Ct. 635,

1 L.Ed.2d 622 (1957). On the other hand,

in cases which present difficult questions

under the RLA but do not require statutory

interpretations that are unique to the

mechanisms of that Act, the doctrines

developed by Congress and the courts from

their experience in adjusting questions of

labor law policy generally are instructive.

For an analogy, and to determine national

labor policy, it is appropriate to refer

to the NLRA for assistance in construing

the RLA. Brotherhood of Railroad Train-

men v. Jacksonville Terminal Co., 394 U.S.

369, 383-84, 89 S.Ct. 1109, 22 L.Ed.2d

344 (1969).

The principal question with re-

spect to the primary strike is whether the

contract provision by which the union

?

34a

agreed not to strike military flights, even

after RLA dispute mechanisms had been ex-

hausted, is enforceable by injunctive relief.

Decision of this question requires an an-

alysis of the dispute resolution mechanisms

of the RLA. The RLA provides that "minor

disputes" are to be resolved by binding

arbitration. A second set of procedures

is designed to facilitate a voluntary

agreement of the parties in major disputes.

See Elgin, J. & E. Ry. v. Burley, 325 U.S.

711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945) ;

O'Donnell v. Wien Air Alaska, Inc., 551

F.2d 1141 (9th Cir. 1977). ‘The minor dis-

putes provisions

contemplate[] the existence of a col-

lective agreement already concluded

or, at any rate, a situation in which

no effort is made to bring about a

formal change in terms or to create

a new one. The dispute relates

either to the meaning or proper ap-

plication of a particular provision

with reference to a specific

situation or to an omitted case.

35a

Elgin, supra, 325 U.S. at 723, 65 S.Ct. at

1290. The major disputes provisions relate

to disputes over the formation of col-

lective agreements or efforts to secure

them. The Act's procedures for major dis-

putes have been described as follows:

A party desiring to effect a change

of rates of pay, rules, or working

conditions must give advance written

notice. § 6. ‘The parties must con-

fer, § 2 Second, and if conference

fails to resolve the dispute, either

or both may invoke the services of

the National Mediation Board, which

may also proffer its services sua

Sponte if it finds a labor emergency

to exist. § 5 First. If mediation

fails, the Board must endeavor to

induce the parties to submit the

controversy to binding arbitration,

which can take place however, only

if both consent. § 5 First, 7. If

arbitration is rejected and the dis-

pute threatens "substantially to

interrupt interstate commerce to a

degree such as to deprive any

section of the country of essential

transportation service, the Mediation

Board shall notify the President,"

who may create an emergency board

to investigate and report on the

dispute. § 10. While the dispute

is working its way through these

stages, neither party may unilateral-

ly alter the status quo. § 2 Seventh,

> Faret, 6, 20.

36a

Brotherhood of Railroad Trainmen v.

Jacksonville Terminal Co., supra, 394

U.S. at 378, 89 S.Ct. at 1115.

In general, when a contract

provision is upened to negotiation, the

provision is not kept in effect by

operation of the RLA once the procedures

for major dispute resolution are ex-

hausted. To encourage voluntary set-

tlement of major disputes, the RLA

postpones the time for self-help

remedies. However, if after reasonable

efforts the parties have exhausted the

bargaining procedures specified by the

RLA without agreement, the statute

does not bar such remedies, including

a strike.

For [the] settlement [of major

disputes] the statutory scheme

retains throughout the tradi-

tional voluntary processes of

negotiation, mediation, voluntary

arbitration, and conciliation.

Every facility for bringing about

agreement is provided and

37a

|

|

|

and pressures for mobilizing public

opinion are applied. The parties

are required to submit to the suc-

cessive procedures designed to in-

duce agreement. § 5 First (b). But

compulsions go only to insure that

those procedures are exhausted be-

fore resort can be had to self-help.

Elgin, supra, 325 U.S. at 725, 65 S.Ct. at

1291. See also Jacksonville Terminal Co. >

Supra, 394 U.S. at 379-80, 89 S.ct. at

1115-16. All concede that the primary

strike by the flight attendants did not

commence until the major dispute resolution

procedures of the Act had been exhausted.

We think there can be no question

about the meaning of the military no-strike

clause in this case. We agree with the

a

conclusions of the district court in this

regard. As Judge Peckham stated:

The clear import of this provision is

to extend the no-strike obligation of

the flight attendants beyond the term

of the collective-bargaining agreement,

even beyond the expiration of the 30-

day cooling-off period mandated by

the RLA, when the Teamsters would

otherwise have the right to strike

38a

against all of TIA's operations. The

Teamsters do not dispute the meaning

of this provision .... This mili-

tary no-strike clause could not be

clearer in expressing its intent that

the flight attendants thereby give up

their right to strike TIA's military

flights even during those periods when

they might strike all of TIA's other

operations.

A contrary interpretation would render mate-

rial portions of the clause meaningless.

TIA would not secure the union's promise not

to strike military flights after exhaustion

of RLA procedures if it were intended that

operation of the procedures nullified the

obligation. The flight attendants' strike,

therefore, violated the military no-strike

clause, and resort to minor dispute arbi-

tration is not necessary to reach this

conclusion. See Wien, supra at 1146-47;

Seaboard World Airlines, Inc. v. Transport

Workers Union, 425 F.2d 1086, 1090 (2d Cir.

1970).

Similarly, we think the Team-

sters' strike in violation of their contract

39a

obligation did not present a major dispute.

In the normal case, once having exhausted

major disputes procedures the parties are

free to resort to self-help. The military

no-strike clause had already been the sub-

ject of bargaining in the major disputes

sessions. We hold, infra, that, as the

parties intended, the clause was binding

even after exhaustion of those procedures,

but TIA advances no theory by which this

fact makes the strike enjoinable as in-

volving a major dispute.

We find no authority by which

the contract clause in question can be

held to violate RLA policies. Once ma-

jor dispute procedures are completed and

the different pressures put on the parties

to achieve voluntary settlements have

been exhausted, it is true that ordinarily

the employer and the union are free to

resort to the traditional economic weapons.

40a

Brotherood of Locomotive Engineers v.

Baltimore & O. R.R., 372 U.S. 284, 291, 83

S.Ct. 691, 695, 9 L.Ed.2d 759 (1963) (per

curiam); Elgin, supra. The RLA does not,

however, preclude the parties from adopting

a different procedure by contract. Cf.

Mastro Plastics Corp. v. NLRB, 350 U.S. 270,

279-84, 76 S.Ct. 349, 356-59, 100 L.Ed.

309 (1956).7

Whatever may be that limitation on

the extent of damages properly awarded in an

action at law, see note 9 infra, a question

we do not reach here, we perceive no policies

peculiar to the RLA which prohibit the par-

ties from regulating by contract their post-

major disputes relations in the manner they

have here. It is true that ordinarily a

=

7. For instance, nothing in our holding

today prevents parties from agreeing

to binding arbitration after the

major dispute mechanisms of the Act

are exhausted.

4la

union's promise not to strike is accompa-

nied by a promise that the employer

agrees to submit the dispute to binding

arbitration. The parties have not direct-

ed our attention, however, to cases re-

quiring an arbitration clause as to con-

dition to holding the no-strike promise

binding.

A determination that the mili-

tary no-strike clause is valid and not

contrary to RLA policies does not control

the ultimate question whether the contract

clause may be enforced by injunctive re-

lief. The anti-injunction command of the

Norris-LaGuardia Act may operate in-

dependently to bar an injunction notwith-

standing the validity of the contract

clause to be enforced, and we rule the

injunctive power of the federal court may

not be used to enforce the no-strike

clause here.

>>

42a

If this case arose under the NLRA,

an injunction would not be granted. See

Buffalo Forge Co. v. United Steelworkers,

428 U.S. 397, 404-12, 96 S.ct. 3141, 3146-

50, 49 L.Ed.2d 1022 (1976) (majority); id.

at 424 n.15, 426 n.20, 96 S.ct. at 3155

n.15, 3156 n.20 (dissent) ; Boys Markets,

Inc. v. Retail Clerks Union, 398 U.S. 235,

90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). As

the Court in Buffalo Forge stated:

"([T]here is no general federal anti-

strike policy; and although a suit

may be brought under § 301 against

strikes which, while they are breach-

es of private contracts, do not

threaten any additional public

policy, in such cases the anti-

injunction policy of Norris-LaGuardia

should prevail."

428 U.S. at 409, 96 S.Ct. at 3148, quoting

Sinclair Refining Co. v. Atkinson, 370 U.S.

195, 225, 82 S.Ct. 1328, 1344, 8 L.Ed.24a

440 (1962) (dissent). If we were persuaded

that a substantial purpose unique to the

RLA, or protection of its dispute settlement

43a

mechanisms, would be substantially .

furthered by specific enforcement of the

clause, we would sustain the order for

injunctive relief, but no such conditions

exist here.

We do acknowledge that there are

some considerations which make an injun-

ction appear appropriate in this case, al-

though for reasons stated below we do not

find them dispositive. Enforcement of

a no-strike clause may have a salutary ef-

fect on labor relations, since the employer

presumably will consent to a contract for

a shorter term in return for a no-strike

clause enforceable by an injunction,

which reduces the risks inherent in re-

negotiating the contract. Frequent ne-

gotiation, under this view, furthers in-

dustrial stability by permitting more

precise adjustments to meet changing

economic conditions.

44a

Further, the breach of contract in

this case is plain and unambiguous. One might

argue that unambiguous contract breaches could

be enjoined without doing violence to any

Norris-LaGuardia Act policy. See Note, The

Applicability of Boys Markets to Refusals to

Cross a Picket Line, 76 Colum.L. Rev. 113, 136-

41 (1976). Cf. Buffalo Forge, supra, 428 U.S.

at 416-17, 96 S.Ct. at 3151-52 (dissent)

(purpose of Norris-LaGuardia Act is to protect

labor organizing and ability to bargain col-

lectively, not to prohibit enforcement of

collective bargaining agreements); F. Frank-

further & N. Greene, The Labor Injunction

5-46 (1930); Smith, The Supreme Court, Boys

Markets Labor Injunctions, and Sympathy Work

Stoppages, 44 U.Chi.L.Rev. 321, 341 (1977).

Moreover, in this case the military

no-strike clause was directed to the discrete

transportation function of military flights,

the union retaining the right to strike other

45a

TIA flights. In addition, apparently the

federal government insisted that the com-

pany insert the clause as a condition of

obtaining military contracts. The no-

strike clause therefore furthered specific

government transportation interests. 8%

Finally, the RLA contains a

statutory provision requiring the parties

to a contract to maintain their agreement

without breach. 45 U.S.C. § 152 First pro-

vides:

It shall be the duty of all carriers,

their officers, agents, and employees

to exert every reasonable effort to

8. The Government's transportation inte-

rests are protected to some extent

by 45 U.S.C. § 160. The Mediation

Board may notify the President of

disputes which threaten serious dis-

ruption, and the President may then

create a board to investigate and

report respecting the dispute. For

the thirty days allowed for the

board's work, and for thirty days

thereafter, no change in the status

quo is permitted except by agreement

of the parties.

7%

46a

Make and maintain agreements concern-

ing rates of pay, rules, and working

conditions, and to settle all dis-

putes . .. in order to avoid any

interruption to commerce or to the

operation of any carrier growing out

of any dispute between the carrier

and the employees thereof.

The Supreme Court in Chicago & N.W. Ry. v.

United Transportation Union, 402 U.S. 570,

91 S.Ct. 1731, 29 L.Ed.2d 187 (1971) held

that this section imposed a substantive duty

on parties, enforceable by injunctive relief,

to exert reasonable efforts during the

negotiating process to reach an agreement.

More to the point, the duty to maintain

agreements was found a basis for injunctive

relief in Seaboard World Airlines, Inc. v.

Transport Workers Union, 425 F.2d 1086 (24a

Cir. 1970), reaff'd in further consideration,

443 F.2d 437 (2d Cir. 1971), and Southern

Pacific Transportation CS.’ #, Railway &

Steamship Clerks, 81 L.C. para. 13,113

(N.D.Cal.1975). The Second Circuit in

47a

Seaboard permitted an injunction to pro-

hibit a strike in violation of the union's

contractual promise not to reopen certain

subjects for RLA major disputes bargaining

before a given date.?

In Seaboard the parties, by supplement-

al agreement, had resolved an issue of

job security for flight navigators dis-

placed by technological change and it

was agreed not to reopen the issue for

a period of ten years. The rest of

the bargaining agreement came due for

re-opening at an earlier date. At

that date, the union served a section 6

notice which included a request to ne-

gotiate the flight navigator question,

the very issue put out of reach by the

supplemental agreement. When the air-

line refused to negotiate the issue,

the union struck, arguing that the car-

rier was avoiding its obligations to

bargain under the major disputes provi-

sion of the Act. The court held that

an anti-strike injunction could issue

pending resolution by the district

court of the question whether the ex-

tended prohibition on re-opening the

particular subject was illegal, and it

later affirmed both the district

court's conclusion that the clause was

legal and its grant of an injunction

against similar strikes in the future.

48a

The difficulty in relying on the

above considerations to justify injunctive

relief is that, with the exception of the

language in section 152, all of these fac-

tors if present in a case arising under the

NLRA would be insufficient to permit an

injunction to issue. Absent a substantial

nexus with statutory dispute settlement

mechanisms or an agreement to arbitrate,

an injunction may not issue to prevent a

plain breach of a no-strike clause by a

union. The language of section 152 is per-

haps unique to the RLA. The history of the

RLA, nevertheless, prevents us from finding

in the Act's obligation to "maintain agree-

ments" a broad mandate to enjoin all, or

even plain, breaches of collective bar-

gaining agreements by a union. Without

question, the RLA was a response to the

perceived dangers of disruption in the

transportation industry. This history has

7%

7s

49a

been described elsewhere and need not be

repeated here. See Chicago & N.W. Ry.,

supra, 402 U.S. at 574-84, 91 S.Ct. at 1733-

39; Chicago River, supra, 353 U.S. at 40,

77 S.Ct. at 640; Elgin, supra, 325 U.S. at

724-27, 65 S.Ct. at 1290-92; Wien, supra at

1145-46. The important point is that

Congress responded to these concerns by im-

plementing a comprehensive system of binding

arbitration and mandatory nonbinding

mediation involving drawn-out procedures

designed to encourage parties to reach

agreement. The policy of the statute is

not that any act which disrupts the trans-

portation industry may be enjoined. In-

stead, after major dispute procedures are

completely exhausted, with reasonable ef-

forts having been made to reach an agree-

ment, see Chicago & N.W. Ry., supra, the

policies peculiar to the RLA are also ex-

hausted, and the parties are governed by

50a

general labor law principles. The Norris-

LaGuardia Act was passed to limit our role

in enforcing labor contracts, in part because

of mistakes of the past and in part, per-

haps, for fear that personal bias some-

times difficult to detect even in ourselves

will weigh too heavily in the enforcement

process. See, e.g., Chicago River, supra,

353 U.S. at 40-41, 77 S.ct. at 640-641;

F. Frankfurter & N. cha want supra. Congress

has mandated the courts’ not to alter through

injunctions the economic balance between

employers and unions without a weighty

Statutory reason for doing so, 10 The RLA

10. For example, if we were to enforce the

military no-strike clause by an in-

junction, it might be appropriate to

limit its duration to a reasonable

time, rather than indefinitely. To

define a reasonable time for enforce-

ment probably would require a decision

as to when hardship on the union be-

comes so great that the injunction

should be lifted so the union can

begin punishing the employer for refusal

to accede. Whatever might be our powers

5la

plan for avoiding disruption is not threat-

ened by the flight attendants' strike, and

a proper accommodation between the Norris-

LaGuardia Act and the NLRA, as determined

by the Supreme Court, prohibits enjoining

the Teamsters' strike; therefore, the strike

in this case may not be enjoined. See

generally Brotherhood of Railroad Trainmen

v. Jacksonville Terminal Co., supra, 394 U.S.

at 374-93, 89 S.Ct. at 1113-24 ("[PJlarties

who have unsuccessfully exhausted the Rail-

way Labor Act's procedures for resolution

of a major dispute [may] employ the full

range of whatever peaceful economic power

they can muster, so long as its use con-

flicts with no other obligation imposed by

federal law." iG, at 392, 89 g.Ct. at 1123).

to make such judgments in damage actions

for breach of contract, the Norris-La-

Guardia Act was designed to preclude

courts from issuing injunctions on this

kind of determination.

52a

Seaboard does not require a dif-

ferent result. There the court held that

a section 6 notice does not open all pos-

sible subjects for bargaining between the

parties if they have contracted otherwise,

and that the parties may agree beforehand

not to reopen certain issues when the rest

of the collective bargaining agreement

comes up for renegotiation pursuant to

section 6. Its reasoning does not support

TIA's view of section 152. Seaboard in-

volved the effect of contractual efforts

to limit the scope of a section 6 proceed-

ing, instead of efforts to specify permis-

sible post-mediation measures. Also, un-

like the case before us, the injunction in

Seaboard enabled the parties to complete

required bargaining on all other issues

subject to a section 6 notice, and thus

pursue dispute settlement procedures not

yet exhausted.

53a

Chicago & N.W. Ry. similarly does

not support enjoining a primary strike for

the purpose of enforcing a clause in the

collective bargaining agreement. The

rationale for the injunction in that case

was that the union had failed to use reason-

able efforts to comply with the mandatory

disputes settlement mechanisms that lie at

the heart of the act. The integrity of

these mechanisms was thus protected by the

injunction in Chicago & N.W. Ry.; enjoining

the Teamsters' primary strike in this case

would not similarly further the RLA's arbi-

tration policies. We do not think Chicago

& N.W. Ry. is authority for abandoning the

Norris-LaGuardia Act's anti-injunction

provisions whenever a union subject to the

RLA has plainly violated its collective

bargaining agreement.

It might appear anomalous that if

a no-strike clause in force during the life

7

54a

of the contract was ambiguous as to whether

the strike was permitted, the strike could

be enjoined pending the outcome of minor

dispute arbitration, and an arbitrator's

determination that the strike should stop

could be enforced in federal court by an

injunction, see Order of Ry. Conductors &

Brakemen v. Spokane P. & S. R.R., 366 F.2d

99, 102 (9th Cir. 1966), cert. denied, 385

U.S. 1025, 87 S.Ct. 752, 17 L.Ed.2da 673

(1967) (RLA); Steelworkers Vv. Enterprise

Corp., 363 U.S. 593, 80 S.ct. 1358, 4 L.

Ed.2d 1424 (1960) (NLRA), but that where

the breach is so clear that arbitration is

not necessary to determine the violation,

no injunction may issue. This result,

however; is compelled by the combination

of the manner in which Congress and the

RLA chose to reduce disruption in the

transportation industry, and the control-

ling interpretations of the Norris-LaGuardia

Act.

55a

The second principal issue on this

appeal is the authority of the district

court to enjoin any aspect of the sympathy

Strike. The district court held that it

could enjoin only the Sympathy strike di-

rected against military flights. Trans

International Airlines, Inc. v. Internation-

al Brotherhood of Teamsters, 439 F.Supp.

184 (N.D.Cal.1977). We think the district

court had jurisdiction to enjoin the

Sympathy strike in its entirety.

Differences among the contracts

of the premerger TIA flight engineers and

pilots, the former Saturn flight engineers,

and the former Saturn pilots, bear on the

issues addressed below, and we set forth

relevant portions of the contracts in the

margin, +1 The controlling collective

ll. As a result of the merger in 1976 of

TIA and Saturn Airways, at the time

of the events in question former

Saturn engineers and pilots were

-*

56a

bargaining agreements between the’ carrier

and the flight engineers and pilots, both

with premerger TIA employees and former

governed by a different contract than

the premerger TIA engineers and

pilots. As we discuss further below,

see pages - » Slip op. pages

2059-2060, differences in contract

language between the former Saturn

flight engineers and the premerger TIA

flight engineers and pilots would bear

on the propriety of granting

preliminary relief. In relevant part,

the contracts provide:

PRE~MERGER TIA FLIGHT ENG-

INEERS AND PILOTS

(Agreement of July 21, 1974)

"SECTION 21

A. [General No Strike Clause] During

the term of this Agreement, the Union

shall not authorize, cause, sanction

or engage in any strike, picketing,

slowdown or stoppage of work.

D. [Military No Strike Clause] The

Union further agrees that the Crew-

members will continue to perform all

duties which are necessary to enable

the Company to operate flights for

or in support of traffic sponsored

by the Department of Defense of the

United States of America, even though

such Crewmembers withdraw from com-

mercial airline service because of a

57a

Saturn employees, contained a no-strike

clause and a military no-strike clause,

and the question whether the sympathy

dispute arising out of negotiations

for a new contract after the ex-

piration date of this Agreement and/

or during and after all procedures

of the Railway Labor Act have been

exhausted, ...

E. [Picket Line Clause] It shall not

be a violation of this Agreement, and

it shall not be a cause for discharge

or disciplinary action in the event

a Crewmember refuses to go through

or work behind a legal primary picket

line maintained by the Union in con-

nection with a dispute between the

Company and the Union involving any

flight personnel represented by the

Union,"

FORMER SATURN FLIGHT ENGINEERS

(Agreement of November 17, 1974)

"Section 24

L. [General No Strike Clause] The

Company will not lock out any en-

ployees covered by this Agreement

and the Union and its members, in-

dividually and collectively, agree

that they will not authorize or

take part in any strike or picket-

ing at the Company's premises during

the life of this Agreement, until the

procedures for settling disputes

58a

strike was in violation of the contracts

presents a minor dispute under the Act.

Both TIA and the Teamsters agree that the

involving employees covered by this

Agreement, as provided for by the

Railway Labor Act, have been exhaust-

ed by both parties.

P. [Military No Strike Clause] Conduct

of Military Operations--It is mutually

agreed that during the term of the

Agreement between the Company and its

Flight Engineers as represented by the

Union, that the Flight Engineers will

not engage in any strike or work stop-

page on purely military operations con-

ducted by the Company."

FORMER SATURN PILOTS

(Agreement of May 23, 1972)

This contract contains no general

no-strike agreement as such, although

it does, in Section 26 C 12, reserve to

each party all the rights and

privileges accorded under the provisions

of the Railway Labor Act.

"Section 29

K. [Military No Strike Clause] In the

interest of national defense and in the

event of the withdrawal from service

from Saturn Airways, Inc., of crew

members covered by this agreement,

59a

dispute must be resolved through the Act's

binding arbitration procedures for minor

disputes. We cannot say that either TIA's

or the Teamsters' interpretation of the

contracts are completely without merit.

Interpretation of the collective bargaining

agreements with respect to the sympathy

strike is therefore in the first instance

a matter for the adjustment board rather

than a court. The question presented for

our decision is whether the flight engi-

neers and pilots are required to resort

to the minor dispute mechanisms of the Act

to have their rights clarified before

engaging in the sympathy strike.

The court in Chicxgo River, supra,

essential military services shall

be permitted to operate; provided,

however, that this policy shall

only pertain to those flights that

are solely and completely military

in nature and whose entire cargo

is comprised of military com-

modities or military personnel."

60a

permitted injunctions to be issued, the

Norris-LaGuardia Act notwithstanding,

when the strike threatened the juris-

diction of the minor dispute arbitrator.

Subsequent to Chicago River, the Court

also permitted strikes to be enjoined

to protect binding arbitration provisions

in a collective bargaining agreement

arising under the NLRA. Boys Markets v.

Retail Clerks, 398 U.S. 235, 90 S.Ct.

1583, 26 L.Ed.2d 199 (1970) (reversing

Sinclair Refining Co. v. Atkinson, 370

U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2da 440

(1962)). Buffalo Forge Co. v. United

Steelworkers, 428 U.S. 397, 96 S.Ct.

3141, 49 L.Ed.2d 1022 (1976) then

Clarified the Boys Markets case, holding

that in NLRA cases the Norris-LaGuardia

Act deprived federal courts of juris-

diction to enjoin a sympathy strike,

even where the strike is clearly forbidden

6la

by a contractual no-strike clause and the

parties have agreed to binding arbitration.

The Court concluded that the sympathy

strike was not "over an arbitrable griev-

ance."

Chicago River, arising under the

RLA, and Boys Markets, arising under the

NLRA, reached parallel results; indeed the

later case made specific reference to the

principles elaborated in Chicago River. The

close rélation of those cases does not mean,

however, that the injunctive power of the

federal courts is coextensive under the two

statutes. See Sinclair Refining, supra, 370

U.S. at 210-11, 82 S.Ct. at 1336-37. We

conclude that not all of the reasoning of

Buffalo Forge applies in RLA cases and that

policies unique to RLA support jurisdiction

to enjoin the sympathy strike in this case.

A principal goal of the Court in

Buffalo Forge was to avoid judicial in-

trusion on an arbitration form established

62a

by contract. The Court pointed to the

dangers of judicial declarations that

might control an arbitrator's determina-

tion of the case, a responsibility as-

signed exclusively to him by agreement

of the parties. See 428 U.S. at 410-12,

96 S.Ct. at 3148-50. The Court refused

to conclude, in the absence of express

language in the contract, that the

parties intended to allow preliminary

injunctive relief pending arbitration,

where such relief was not necessary to

insure arbitration of the dispute,

See id. at 411, 96 S.Ct. at 3149. per-

haps the Court was also worried that a

contrary result would lead to fewer arbi-

tration clauses in collective bargaining

agreements, the unions being less will-

ing to agree to arbitrate disputes or to

proceed to arbitration following a

63a

preliminary injunction. See id. at 412, 96

S.Ct. at 3149. These considerations are in-

applicable here. Congress in the RLA

established a process of minor dispute set-

tlement without reference to any arbitration

framework which would have been agreed upon

by the parties. The permissible pre-

arbitration remedies agreed upon by the par-

ties, and the effect of our decision on the

number of minor disputes likely to be settled

by arbitration, are not issues presented by

this case.

Moreover, implementation of the

RLA's process for resolving minor disputes

is not limited to granting preliminary in-

junctive relief only where the relief will

make it more likely that the dispute will

be arbitrated.1? the requirement of

12. The Buffalo Forge result has been ex-

plained by some Commentators as rest-

ing on the insight that enjoining a

64a

arbitration under the RLA is an essential

part of the congressional purpose of avoid-

ing interruption of the transportation

industry. Chicago River, supra, 353 U.S.

sympathy strike does not make it more

likely that the arbitrable dispute--

the contractual right to engage in a

Sympathy strike--will be decided by

the arbitrator. See, e.g., 63 Cornell

L.Rev. 507, 512 n.25 ( ); Note,

The Sppascebi iit of woke Markets to

efusals to Cross a cke ne,

Colum.L.Rev. L1I3, 131 (1576). As

stated in the text, to apply this

rationale here would be to adopt a

somewhat crabbed view of the purpose

of the RLA minor dispute procedures.

The Court noted that "Injunctions

against strikes, even temporary in-

junctions, very often permanently

settle the issue," 428 U.S. at 412,

96 S.Ct. at 3150. Not enjoining a

sympathy strike may also, however,

settle an issue for all practical

purposes. Thus, in some cases, if

any meaningful relief is to be

available, limited pre-arbitration

judicial intervention will be neces-

Sary where the employer can show a

strong likelihood of ultimately pre-

vailing in its interpretation of the

clause and the inadequacy of other

remedies. In the RLA context we must

take the risk of making this deter-

mination in order to make the

statutory mechanism work.

65a

at 40, 77 S.Ct. at 640; Elgin, supra, 325

U.S. at 724-727, 65 S.Ct. at 1290-1292;

Wien, supra at 1145-46. The minor dispute

arbitration procedure was designed as a

substitute for prearbitration strikes,

cf. Chicago River, supra, and we think this

includes sympathy strikes of the character

presented in this case. See Detroit and

T. Shoreline R.R. v. United Transportation

Union, 396 U.S. 142, 148, 90 S.ct. 294,

298, 24 L.Ed.2d 325 (1969); Texas and

N.O.R.R. v. Brotherhood of Railway & Steam-

ship Clerks, 281 U.S. 548, 565, 50 S.Ct.

427, 432, 74 L.Ed. 1034 (1930). The legis-

lative history of the RLA suggests an in-

tent to prevent a dispute that involves a

small number of transportation workers from

disrupting the carrier's existing operations

and its relations with other employees.

It would be contrary to this objective to

permit a sympathy strike before completion

66a

of the minor dispute mechanisms for deter-

mining the legitimacy of the strike. We

therefore reject ALPA's argument that Boys

Markets and other related cases declare the

policies underlying the use of arbitration

to be identical under the NLRA and the RLA.

The policy of avoiding disruption

of transportation businesses is not, of

course, all encompassing. As we held above,

& federal court under the RLA may not en-

join a strike plainly in breach of contract

where the major disputes mechanism of the

Act have been used and exhausted. The

policy is strong enough, however, to require

that where a minor dispute exists the union

must first establish its contractual right

to engage in a sympathy strike before dis-

rupting a carrier's operation, at least

where traditional standards governing

——

67a

preliminary relief are met.+3 ‘This does no

more than preserve the status quo pending

clarification of the parties' rights by

13.

We emphasize that where, as is true in

this case, the employer's likelihood

of ultimately prevailing depends in

large measure on construction of the

parties' bargaining agreement, the

district judge should be satisfied

that the sympathy strike clearly vio-

lates the no-strike clause or a con-

trolling provision of the RLA.

In light of our disposition, it is

unnecessary for us to consider in

detail TIA's argument that regardless

of any contract provisions, all sym-

pathy strikes may be enjoined as

violating policies expressed in the

RLA. See Chicago & Illinois Midland

ae v. Brotherhood of Railroad

rainmen,. 315 F.2d 771 (7th Cir.),

vacated as moot, 375 U.S. 18, 84 5S.

Ct. ol, Il L.Ed.2d 39 (1963). Compare

Brotherhood of Railroad Trainmen v.

antic Coas ine R. R., .2d

ir.), aff'd by an equally

divided court, 385 U.S. 20, 87 s.ct.

226, 17 L.Ed.2d 20 (1966); Brother-

hood of Locomotive Firemen and

Enginemen v. Florida Bast Coast mee

3e-F a 673 (5th Cir. 1965). ne

68a

Statutory procedures. Maintenance of

the status quo before and during major

dispute procedures is required by the

RLA. See Detroit and T. Shoreline Ress

Supra; 45 U.S.C. § 156. Similarly where

changes in the status quo are likely to

lead to serious harm and threaten to

disrupt the operation of the trans-

portation carrier, injunctive relief is

proper pending operation of the Act's

minor dispute procedures. Maintenance

of the status quo is, of course, a tradi-

tional basis for equitable relief. See,

e.g., Brotherhood of Locomotive Engineers

v. Missouri-K.-T.R.R., 363 U.S. 528, 532-

35, 80 S.Ct. 1326, 1329-1330, 4 L.Ed.2a

1379 (1960); Tanner Motor Livery, Ltd.

V. Avis, Inc,, 316 F.2d 804, 808-9 (9th

Cir.), cert. denied, 375 U.S. 821, 84

S.Ct. 59, 11 L.Ed.2d 55 (1963). Given

the special concern of the RLA over

69a

continuous operation by carriers, it is

appropriate to require the union to accept

the status quo pending the arbitrator's

decision. See Smith, supra at 340-49.

International Association of Machinists v.

Street, 367 U.S. 740, 771, 81 S.Ct. 1784,

1801, 1 L.Ed.2d 1141.

The preservation of the status

quo is especially proper where failure to

grant injunctive relief would make the

arbitrator's ultimate decision a meaning-

less one. This was a consideration in

Missouri-K.T.R.R., supra. Uphoiding the

action of the district court, which is-

sued an injunction against a strike pend-

ing resolution of the minor dispute by

the settlement mechanisms of the Act, the

Court stated:

From the point of view of these em-

ployees, the critical point in the

dispute may be when the change is

made, for, by the time of the

frequently long-delayed Board

70a

decision, it might well be impossible

to make them whole in any realistic

sense. If this be so, the action of

the district Judge, rather than defeat-

ing the Board's jurisdiction, would

operate to preserve that jurisdiction

by preventing injury so irreparable

that a decision of the Board in the

unions' favor would be but an empty

victory.

363 U.S. at 534, 80 S.Ct. at 1330.

For these reasons we conclude that

the district court had jurisdiction to en-

join the sympathy strike, in its entirety,

pending determination of the contractual

rights of the parties by theadjustment

board.

Although the district court had

jurisdiction to enjoin the sympathy strike

in its entirety, in light of the principles

discussed in our opinion, relevant differ-

ences in the contract provisions of dif-

ferent groups of TIA employees may not

have been considered as they should have

been by the district court. In addition

to the general and military no-strike

7la

clauses, the contract of the premerger

TIA flight engineers and pilots contains

a "picket line" clause which seems to

permit the honoring of other employees'

legal picket lines. Although the clause

probably does not apply to the sympathy

strike in this case,+4 the language would

be a factor to consider in weighing the

likelihood of the employer ultimately

succeeding in its claim.15

14.

45.

See note 9, supra. We doubt, how-

ever, that the primary strike in

this case was "legal" as the word

was used in subsection E of the

agreement. Further, TIA argues

the clause applies only to indi-

vidual, not concerted, refusals to

cross legal picket lines.

Finn,

We recognize the theoretical pos-

sibility that the combination of

our holdings regarding enjoin-

ability of the primary and sympathy

strike might lead employers to take

curious actions. An employer seek-

ing an injunction against a strike

might attempt to argue that a

clause which unambiguously prohibit-

ed the strike in question--so that

72a

SUMMARY

As to the primary strike, the

order enjoining the strike of military

flights is reversed and the order de-

clining to enjoin the strike of non-

military strikes is affirmed.

As to the sympathy strike, the

trial court's ruling that it had juris-

diction to enjoin the strike of military

flights is affirmed. If the strike were

still in force we would remand this as-

ails of the case to the trial court for

further consideration of the propriety of

there was no minor dispute to be

arbitrated--was in fact unclear,

so that minor dispute arbitration

was necessary to determine its

meaning and an injunction was

appropriate pending such arbi-

tration. We doubt that such be-

havior will be common, and we

trust that the district courts

are capable of disposing of any

efforts to generate spurious minor

disputes.

73a

the injunction in view of our discussion

of Buffalo Forge, the RLA, and the stan-

dards for granting injunctibe relief in

this situation. The strike having ended,

however, such further proceedings are

not required. The order of the district

court declining to enjoin the sympathy

strike of nonmilitary flights on the

ground of lack of jurisdiction is reversed.

Because of the contempt proceed-

ings pending in the district court, a

remand is appropriate. The pre-merger

TIA engineers were represented by the

Teamsters, and the agreement quoted in

footnote 11 was in force when the district

court issued its injunctions and contempt

orders in this case. The trial court will

consider the question of the legal rights

of the parties for the alleged contempt

in light of the principles set forth here-

in, together with such other considerations

74a

as it may deem appropriate to a just

determination of the case.

The orders of the district court

are AFFIRMED in part, REVERSED in part,

and the case REMANDED for further proceed-

ings.

The parties shall bear their own

costs for the appeals taken to this court.

WALLACE, Circuit Judge, dissenting

in part:

I dissent from that part of the

majority's decision which reverses the dis-

trict court's injunction order against the

primary strike activity directed at mili-

tary flights. Although I am mindful of the

post-impasse setting of this labor dispute

and the general policies favoring the free

play of economic forces when parties fail

to reach agreement, I believe that this is

one of those occasions when the general

75a

policies of the Norris-LaGuardia Act

should give way to important counter-

vailing policies embodied in the central

provisions of the Railway Labor Act (RLA).

It has long been recognized "that

Norris-LaGuardia does not invariably bar '

injunctive relief when necessary to achieve

an important objective of some other

statute in the pattern of labor laws."

Sinclair Refining Co. v. Atkinson, 370 U.S.

195, 217, 82 S.Ct. 1328, 1340, 8 L.Ed.2a

440 (1962) (Brennan, J., dissenting).

Specifically, the Supreme Court has held

on several occasions that the anti-

injunction policy of Norris-LaGuardia will

be overcome by the need to enforce a

statutory duty arising under the RLA. See,

€.g., Chicago & N.W. Ry. v. United Transp.

Union, 402 U.S. 570, 91 S.ct. 1731, 29

76a

L.Ed.2d 187 (1971); Brotherhood of i» *

Trainmen v. Howard, 343 U.S. 4768, 72 S.Ct.

1022, 96 L.Ed. 1283 (1952); Graham v.

Brotherhood of Locomotive Firemen & Engine-

men, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed.

22 (1949). The Court has stated that "the

propriety of judicial enforcement [under

the RLA] turns on the importance of the

duty in the scheme of the Act, the capacity

of courts to enforce it effectively, and

the necessity for judicial enforcement if

the right of the aggrieved party is not to

prove illusory." Chicago & N. W. Ry. v.

United Transp. Union, Supra, 402 U.S. at

5978, 91 S.Ct. at 1736. See also Interna-

tional Ass'n of Machinists v. Street, 367

U.S. 740, 772-73, 81 S.ct. 1784, 1801--02,

6 L.Ed.2d 1141 (1961).

There is no question that, in

general, the RLA is designed to avoid

interruption of commerce by channeling

77a

the parties through various procedures de-

signed to enhance the chances for agree-

ment. As the majority observes, normally

the exhaustion of the major dispute proc-

esses of the RLA frees the parties to flex

their economic muscle. See Brotherhood of

Sony

R. R. Trainmen v. Jacksonville Terminal

Co., 394 U.S. 369, 392, 89 S.ct. 1109,

1123, 22 L.Ed.2d 344 (1969). For these

reasons, an injunction in this setting

must be justified by important consider-

ations.

The majority acknowledges that

the RLA does not preclude the parties from

supplementing the Statutory scheme by con-

tract. Moreover, the majority has sus-

tained the contract provision before us

as consistent with the overall approach of

the RLA. It is my view that the policies

of the RLA are not exhausted when, as here,

the parties have made clear provision for

78a

such a limitation on the weapons avail-

able in their own bargaining process.

Nor am I persuaded that Trans Interna-

tional Airlines (TIA) should be denied

its bargain on the sole ground that the

dispute, though involving a contract

term and to that extent being in the

nature of a minor dispute, occurred in

a post-mediation setting of an under-

lying major dispute. The pointed

limitation included in the statement of

the Supreme Court relied on by the

majority is of great importance:

parties who have unsuccessfully

exhausted the Railway Labor Act's

procedures for resolution of a

major dispute [may] employ the

full range of whatever peaceful

economic power they can muster,

so long as its use conflicts

with no other obligation imposed

by fed

ederal law.

Brotherhood of R. R. Trainmen v. Jackson-

ville Terminal Co., Supra, 394 U.S. 369,

392, 89 S.Ct. 1109, 1123, 22 L.Ed.2a4

79a

344 (emphasis added). I have concluded

that the use of such power in this case

does conflict with an important obliga-

tion under the RLA.

It is my view that this case

should be governed by the reasoning set

forth in Seaboard World Airlines v. Trans-

port Workers Union, 425 F.2d 1086 (2d Cir.

1970). In Seaboard, the Second Circuit

upheld an injunction of a strike called to

pressure an employer into bargaining over

topics not subject to reopening under the

existing collective bargaining agreement,

The court found that the union's attempt

to breach the moratorium agreement amount-

ed to a violation of its duty under

section 2 First of the RLA "to exert every

reasonable effort to make and maintain

agreements concerning rates of pay, rvles,

and working conditions, and to settle all

disputes . . in order to avoid any

a*

80a

interruption to commerce or to the oper-

ation of any carrier .. .." (Emphasis ad-

ded.) See id. at 1091. It is the violation

of this same duty to maintain agreements

which TIA invokes as the ground for the-

injunction in this case.

Although the majority does not

find Seaboard to be dispositive, I believe

that the problem presented there is

analogous to the one we face. In each

setting, the relevant contract provision

was intended to block the union from pur-

‘suing its grievances by means of economic

pressure on the employer--in Seaboard, by

forbidding the giving of a section 6 no-

tice that would set in gear the major

dispute procedures of the RLA; in the case

before us by forbidding strike pressure

against military flights even after the

8la

exhaustion of those procedures. + In each

case, the union's primary defense was that

the contract term was somehow inconsistent

with the overall purposes of the RLA and

hence inapplicable; Norris-LaGuardia's

restrictions on injunctive relief provided

the union's fallback position. In each

setting, a strike injunction could have is-

sued pending the RLA's mandatory arbitration

1. The majority asserts that the injun-

ction in Seaboard simply required the

union to abide by its agreement to

limit the scope of the section 6

proceeding, thereby enabling the par-

ties to complete required bargaining

on other subjects. The opinion in

Seaboard, however, makes it clear that

the moratorium agreement foreclosed

bargaining on all subjects and that

no section 6 proceeding was pending.

Seaboard World Airlines, Inc. v.

Transport Workers Union, 425 F.2d

1086, 1087-88 (2d Cir. 1970). Rather

’

than clearing the path for relevant

negotiations, the injunction in

Seaboard foreclosed union efforts to

compel any negotiations.

82a

procedures, @ were it not for the fact that

the minor dispute questioned the statutory

validity of the contract provision rather

than its intended meaning. See id. at 1090

(citing Felter v. Southern Pacific Co., 359

U.S. 326, 327-28, 79 S.Ct. 847, 850-51, 3

L.Ed.2d 854 (1959) .3 The court in Seaboard

The majority acknowledges that the

strike issue here involved a minor dis-

pute. I have found no relevant case

deciding whether the post-contract

setting of the dispute would preclude

invocation of the mandatory arbitration

procedures of the Act. It seems to

me, however, that decisions requiring

contractual arbitration in disputes

over rights accrued under an expired

agreement would be applicable to the

statutory arbitration of the RLA.

See, 23g Nolde Brothers, Inc. v.

’

Local Bake Workers, 430 U.S.

243, 97 S.ct. 1367, 5I L.Ed.2d 300

(1977).

As in Seaboard, the contract provision

in the case before us is quite clear

on its face. The union does not appear

to argue that the contract clause in

question was not intended to forbid

strikes against military flights even

after impasse. Rather, it contends

that even such clauses may be changed

83a

reasoned, in part, that unions should

not be free to strike in violation of

contract terms pending resolution of the

controversy merely because those terms

are so clear as not to require the

mandatory arbitration of the Act:

From a practical standpoint we

can see little difference be-

tween an anti-strike injunction

pending interpretation by a

board of adjustment whether a

contract allowed reopening, as

was approved in Flight Engineers'

Int'l Ass'n v. American Airlines,

tBGs, a 6 a0a Fi ae 6 tts cle.

I962)], and an injunction pend-

ing determination by a court

whether a prohibition on reopen-

ing is illegal.

Id. at 1092. Similarly, I can see little

practical difference between an injunction

enforcing the arbitrator's decision that a

unilaterally by self help when the

procedures of the Act have been

exhausted. As in Seaboard, juris-

diction to determine the validity

of a contract provision under the

RLA is thus properly invoked.

84a

strike was forbidden by the contract,

despite an underlying major dispute, see

Buffalo Forge Co. v. United Steelworkers,

AFL-CIO, 428 U.S. 397, 405, 96 S.Ct. 3141,

3146, 49 L.Ed.2d 1022 (1976) (NLRA), and

an injunction in support of a judicial

determination that an anti-strike provision

is not only clear, but also valid and bind-

ing under the Act.4

4. The majority contends that such a dis-

tinction between injunctions enforcing

an arbitrator's decision and those in

Support of a judicial decision was

adopted by the Supreme Court in Buffalo

Forge. See ante at - The Court

rew the distinction there becruse the

policy supporting injunctive relief

under the NLRA, encouragement of private

agreements to arbitrate labor disputes,

would be undermined by a decision grant-

ing courts authority to intrude on an

exclusive jurisdiction of the arbitrator

by preliminarily resolving the merits of

a contract dispute. But the majority

itself reaches a different result, and

I concur, on the same sympathy-strike

issue as presented in Buffalo For e, on

the ground that the statutory arbitration

of the RLA involves a broader policy

against pre-arbitration strikes. See

infra at - The case more nearly

85a

The majority does not disapprove

of Seaboard's holding, nor does it appear

to deny that the union in the case before

us has breached its duty to exert reason-

able efforts to "maintain agreements."

The majority's main effort to distinguish

the case amounts to restating the acknowl-

edged fact that Seaboard involved the ef-

fect of contractual efforts to preclude a

section 6 proceeding rather than efforts

to specify permissible post-mediation

on point, Seaboard, relies on this

same broad RLA policy against strikes

pending resolution of a minor dispute,

and concludes that it also applies

to questions of statutory construction

properly pending before a court. My

extension of this reasoning to injun-

ctions supporting the eventual

resolution of the statutory issue is

Supported by the later Second Circuit

decision upholding the issuance of a

permanent injunction in that case.

Seaboard World Airlines, Inc. v.

Transpor orkers ion, F.2d 437

(2d Cir. L971).

86a

measures. But this distinction does not

explain why the union activity in Seaboard

should constitute a more significant breach

of the statutory duty to "maintain agree-

ments" than occurred here, nor why injun-

ctive relief was more appropriate there.°

Another possible distinction is that a

second anomaly would have resulted if

injunctive relief against tha strike

was denied in the setting of Seaboard.

Section 6 of the RLA forbids unions

from striking prior to the completion

of the RLA's major dispute procedures,

and injunctive relief may support this

statutory duty. The refusal to enjoin

the strike in Seaboard would thus have

appeared to grant greater rights to a

union which wrongfully demanded that

the employer negotiate new terms than

to one which appropriately invoked

section 6. See Seaboard World Airlines,

Inc. v. World Transport Workers Union,

supra, 425 F.2d at LOSI=52~ Even so,

e union in Seaboard was not seeking

to impose bargaining terms prior to

negotiating with the employer, but

merely refusing to maintain the prior

agreement not to reopen the contract

for bargaining. Apart from the alleged

breach of the duty to "maintain agree-

ments," the union might well have con-

tended that Norris-LaGuardia protected

the use of economic pressure to convince

87a

While the post-mediation setting is not

irrelevant, the fact that a minor dispute

is also involved suggests that this dis-

tinction may not be decisive. The

majority appears to conclude otherwise

primarily by finding that only the vio-

lation of statutory duties bearing a "sub-

Stantial nexus" to statutory dispute

settlement procedures represent a "weighty

statutory reason" for abrogating Norris-

LaGuardia. See ante at . £ tern

next to that contention.

the employer that changed circum-

stances required negotiation of new

security provisions, notwithstanding

Such pressure was in breach of con-

tract. It is significant that the

court in Seaboard relied on the duty

to "maintain agreements" rather than

the status quo provision of section

6, the provision that serves to

prevent the undermining of a section

6 proceeding by strike tactics.

88a

Fh II

The Supreme Court has never

stated that the only RLA duties important

enough to justify injunctive relief despite

Norris-LaGuardia are those that directly

Support dispute settlement procedures laid

down by the Act. In fact, a number of lead-

ing Supreme Court decisions involve breach

of the duty of fair representation of

minority workers which the Court found im-

plicit in the Act's overall scheme, a duty

that does not directly support the Act's

procedures for dispute resolution. See,

€.g., Graham v. Brotherhood of Locomotive

Firemen & Enginemen, supra, 338 U.S. 232,

70 S.Ct. 14, 94 L.Ed. 22. The majority

thus incorrectly asserts that reversal is

“compelled by the combination of the manner

in which Congress and the RLA chose to re-

duce disruption in the transportation in-

dustry, and the controlling interpretations

89a

of the Norris-LaGuardia Act." See ante at

- There simply is no controlling pre-

cedent in this case and we are thus forced

to reconcile the demands of the RLA and

Norris-LaGuardia.

Equally important, several prior

cases upholding strike injunctions under

the RLA can be adequately explained only

by the general RLA policy of avoiding need-

less disruption of commerce and a corres-

ponding policy of restricting the right to

use economic pressure in a minor dispute.

Such decisions, including our decision to

reverse the district court's refusal to

enjoin the sympathy strike against non-

military flights, are not unrelated to

the RLA's machinery for resolving disputes,

but, at the same time, are not directly

supportive of that machinery.

For example, in Brotherhood of

R.R. Trainmen v. Chicago River & Indiana

90a

R.R., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d

622 (1957), the Supreme Court held that

strikes could be enjoined pending the com-

pletion of the minor dispute procedures of

the RLA. The Court stressed that strikes

might force employers to succumb prior to

the Adjustment Board's decision, thereby

effectively depriving the Board of juris-

diction. Id. at 39, 77 S.Ct. at 639. See

also Boys Markets, Inc. v. Retail Clerks

Union, 398 U.S. 235, 252, 90 s.ct. 1583,

1593, 26 L.Ed.2d 199 (1970). This reasoning

explains the result in Chicago River, where

the Court considered "controversies over

the meaning of an existing collective bar-

gaining agreement in a particular fact

situation, generally involving only one

employee," 353 U.S. at 33, 77 S.Ct. at 636,

but it does not explain the application of

the Chicago River doctrine to factual set-

tings in which the underlying grievance

9la

will not be’ resolved by the arbitration in

support of which injunctive relief is

sought. The sympathy strike before us,

the enjoining of which the majority affirms,

involves an entire unit of employees re-

fusing to cross the picket line of sister

employees engaged in a post-mediation primary

strike. Since the only arbitrable issue

is the contractual legality of the strike

itself, these euployees are not merely

required to resolve the underlying dispute

in accordance with the statutory scheme,

but are precluded from using their most

effective weapon pending resolution of

the strike issue itself. The decision to

enjoin thus preliminarily resolves the

merits of the minor dispute over the ap-

plicability of the strike clause, arguably

in derogation of the Adjustment Board's

jurisdiction over that issue.

It was precisely the limited and

92a

indirect nature of the relationship be-

tween sympathy strikes and the efficacy

of a system of arbitration as the means

of resolving disputes, that led the Sup-

reme Court to limit the rule of Boys

Markets to injunctions against strikes

"over an arbitrable grievance." Buffalo

Forge Co. v. United Steelworkers, AFL-CIO,

Supra, 428 U.S. at 407-08, 96 S.Ct. at

3147-48. The majority distinguishes

Buffalo Forge, correctly I believe, by

finding that "the minor dispute arbitration

procedure [of the RLA] was designed as a

substitute for prearbitration strikes."

See ante at - Whereas under the NLRA

the judicial role involves aiding private

parties to resolve their disputes, which

necessarily focuses concern on whether a

particular rule may discourage parties

from agreeing to arbitrate, the judicial

role under the RLA involves the implementa-

tion of a statutory policy requiring the

93a

parties to use reasonable efforts to avoid

disruption of commerce. The arbitration

scheme is thus read to mean that there is

no unqualified "right to strike" in a minor

dispute setting, at least where tradIvional

standards of equity are met. The tradi-

tional presumption that labor may use its

full economic power gives way to a statutory

scheme that avoids disruption of commerce

by requiring the parties with an established

rélationship to settle minor disputes with-

out resort to such power.

Despite its post-mediation setting,

the union's strike against military flights

also involves a minor dispute. That dispute

should be resolved before the economic power

of the parties is unleashed. The majority

acknowledges the anomaly that if a no-

strike clause in force during the life of

the contract was ambiguous, a strike could

be enjoined pending the outcome of minor

94a

dispute arbitration. But the anomaly runs

even deeper, for if the union had made a

colorable claim that the contract clause be-

fore us did not intend to preclude post-

mediation strikes, the strike could also

have been enjoined pending arbitration even

in its current setting. See note 2 supra.

It is difficult to see why the availability

of injunctive relief should turn exclusive-

ly on the clarity of the contract provision

in question. Under these circumstances,

the union should not be allowed to evade

its contractual obligation Simply by claim-

ing it is invalid under the statute rather

than not required by the contract. Thus,

this situation presents an appropiate oc-

casion for judicial enforcement of the duty

contained in section 2 First of the RLA.

IIt

Having concluded that Norris-LaGuardia

95a

may give way to the need to enforce an

important statutory duty, and that the

duty to be enforced may be one that lends

Support to the statute's policy against

disruption of commerce when there exists

a minor dispute under the RLA, I turn now

to several additional factors which per-

suade me that an injunction is appropriate

here.

A.

I disagree with the majority's

conclusion that upholding the injunction

order here would grant courts a general

power to police contracts under the RLA. §&

6. Cf. Buffalo Forge Co. v. United Steel-

workers, AFL-ClO, SUpra, 420 U.S. at

410, 96 S.Ct. at 3 arguing that

Sympathy strike injunction necessarily

implies judicial authority to "enjoin

any other alleged breach of contract

pending the exhaustion of the applicable

grievance and arbitration provisions").

As Justice Stevens observed in dissent

in Buffalo Forge, however, such an

argument merely aseumes that accom-

modation means repeal. See id. at

96a

In the first place, courts will almost al-

ways lack jurisdiction to do so because of

the Adjustment Board's exclusive jurisdic-

tion over disputes concerning the meaning of

a contract. Moreover,,since the section 2

First duty requires only "reasonable ef-

forts" to "maintain agreements," it is

doubtful that courts would find the breach

of that duty where good faith disagreements

over the meaning of a contract existed.

Thus, there is little chance that courts

would employ that duty as an excuse for

preliminarily resolving disputes between

the parties pending arbitration.

I also disagree with the majority's

conclusion that one of the underlying

purposes of Norris-LaGuardia was to limit

the role of courts in enforcing labor con-

tracts. See ante at - In Chicago River,

422-23, n. 11, 96 S.Ct. at 3154-55

(Stevens, J., dissenting).

97a

supra, 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.

2d 622, which the majority relies on for

this assertion, the Supreme Court stated

that Norris-LaGuardia was designed to cor-

rect the abuses that came when federal

courts were "drawn into the field [of en-

joining union activities] under the guise

either of enforcing federal statutes,

principally the Sherman Act, or through

diversity of citizenship jurisdiction."

Id. at 40, 77 S.Ct. at 640. The abuses

under diversity jurisdiction came about

not through judicial construction of col-

lective bargaining agreements, but because

of "the tendency of judges to enjoin con-

certed activities in accordance with

‘doctrines of tort law which made the law-

fulness of a strike depend upon judicial

views of social and economic policy.'

[Citation omitted.]" Boys Markets, Inc.

v. Retail Clerks Union, supra, 398 U.S. at

98a

253 n. 22, 90 S.Ct. at 1593 (quoting Re-

port of Special Atkinson-Sinclair Committee,

A.B.A. Labor Relations Law Section-Proceed-

ings 226, 242 (1963)). On the other hand,

"{w]here an injunction is used against a

strike in breach of contract, the union is

not subjected in this fashion to judicially

created limitations on its freedom of action

but is simply compelled to comply with

limitations to which it has previously

agreed." Id. Ironically, the majority

elsewhere acknowledges the plausibility of

the agreement that courts might enjoin un-

ambiguous contract breaches without doing

violence to any Norris-LaGuardia policy.

See ante at °

It is true, of course, that the

Supreme Court has not read Taft-Hartley's

section 301 jurisdiction as repealing

Norris-LaGuardia as to disputes over the

rights of parties under a collective bar-

gaining agreement. The Court refused to

99a

do so largely because "[i]n the course of

enacting the Taft-Hartley Act, Congress

rejected the proposal that the Norris-

LaGuardia Act's prohibition against labor-

dispute injunctions be lifted to the extent

necessary to make injunctive remedies avail-

able in federal courts for the purpose of

enforcing collective bargaining agree-

ments." Buffalo Forge Co. v. United Steel-

workers, AFL-CIO, supra, 428 U.S. at 409,

96 S.Ct. at 3148. Nevertheless, as the

majority acknowledges, labor relations under

the RLA developed along different lines than

in other industries, and "[t]he fundamental

premises and principles of the [RLA] are

not the same as those which form the basis

of the [NLRA] ...." Brotherhood of R.R.

Trainmen v. Chicago River & Ind. R.R., supra,

353 U.S. at 31-32, n. ae 77 S.Gee at 636.

While I do not argue that Norris-

LaGuardia is broadly repealed in every con-

troversy relating to a collective bargaining

100a

agreement under the RLA, I am persuaded

that, under these facts at least, it is ap-

propriate to enjoin the union's clear breach

of its contractual obligation. The union's

violation of its statutory duty to "maintain

agreements" takes this case outside the

ambit of the Court's oft-repeated statement

that "although a suit may be brought under

§ 301 against strikes which, while they are

breaches of private contracts, do not threat-

en any additional public policy, in such

cases the anti-injunction policy of Norris-

LaGuardia should prevail." Buffalo Forge

Co. v. United Steelworkers, AFL-CIO, supra,

428 U.S. at 409, 96 S.Ct. at 3148 (quoting

Sinclair Refining Co. v. Atkinson, supra,

370 U.S. at 225, 82 S.ct. at 1344 (Brennan,

J., dissenting)) (emphasis added). Like

other statutory duties under the RLA, the

violation of section 2 First does threaten

an "additional public policy" and is thus

enjoinable.

l0la

B.

I also disagree with the major-

ity's conclusion that the policy of al-

lowing the free play of economic forces

in the post-mediation setting is unduly

compromised by the district court's in-

junction. It should first be observed

that the policy is not absolute. The

majority acknowledges that the Supreme

Court has sanctioned the enjoinina ef a

post-mediation strike by a union which

has violated its section 2 First duty "to

exert reasonable efforts to make and main-

tain agreements" during the negotiating

process. Chicago & N.W. Ry. v. United

Transp. Union, supra, 402 U.S. at 571,

91 S.Ct. at 1732. Similarly, it is

probable that a strike-injunction could

issue pending the outcome of the binding

arbitration required by the RLA's minor

dispute provisions, even in a post-

mediation setting. Finally, as the

102a

majority acknowledges, an injunction may

issue to enforce an agreement by the par-

ties to submit a major dispute to binding

interest arbitration after the mechanisms

of the Act are exhausted.

ve a union may be compelled to

honor its agreenent to forego completely

the use of economic weapons pending inte-

rest arbitration consistent with the poli-

cies underlying the RLA and Norris-La-

Guardia, it is not clear why they cannot

be compelled to honor their commitment to

limit the use of such weapons consistent

with a narrowly tailored contract provi-

sion and their responsibility under

section 2 First of the RLA. Indeed, I

am convinced of the propriety of this

injunction order in part because, like the

examples alluded to above, an injunction

here would constitute a very narrow ex-

ception to the general policy of permitting

103a

strikes when negotiations have failed to

produce agreement. Allowing an injunction

here would not "provide a cover for free-

wheeling judicial interference in labor re-

lations of the sort that called forth the

Norris-LaGuardia Act in the first place."

Id. at 583, 91 S.Ct. at 1738.

It is significant that, as the

majority observes, "in this case the mili-

tary no-strike clause was directed to the

discrete transportation function of mili-

tary flights, the union retaining the right

to strike other TIA flights." See ante at

- Specific enforcement of the duty

to maintain agreements in this setting

does not, like the labor injunctions which

led to passage of Norris-LaGuardia, leave

the union without alternatives for press-

ing its demands. Cf. Brotherhood of R.R.

Trainmen v. Chicago River & Ind. R.R., supra,

353 U.S. at 41, 77 S.Ct. at 640 (injunction

104a

pending outcome of arbitration justified

in part because it does not strip labor of

its primary weapon without substituting

any reasonable alternative). The deter-

mination whether section 2 First would sus-

tain an injunction against breach of a

provision forbidding all strike activity

even after mediation has failed to produce

agreement may await a later case. See

Seaboard World Airlines v. Transport Work-

ers Union, supra, 425 F.2d at 1091 (em-

phasizing that its determination of the

propriety of injunctive relief involved

a spectrum, but finding such relief in

that case "Still . . . withdrawn from the

prohibitions of the Norris-LaGuardia Act").

Ge

Finally, in reconciling the poli-

cies of Norris-LaGuardia and the RLA, I

would put considerable weight on the unique

105a

and important governmental interest in avoid-

ing disruption of military flights. This

contract provision was required as a condi-

tion for obtaining military contracts, re-

flecting the federal government's belief that

such a provision has significance for the na-

tion's security. Here we are dealing with

interests that, in a time of emergency,

can be essential to our nation's survival.

When the union's strike activity clearly

violates a contract provision designed to

prevent disruption of such a vital part of

the nation's military transportation sys-

tem, an object which goes to the heart of

the concerns that distinguish the RLA in

the scheme of the nation's labor laws, it

behooves us to consider carefully whether

section 2 First may not adequately support

judicial efforts to see that such a clause

is not blatantly ignored.

Under these circumstances I would

affirm.

APPENDIX A-1l

la-1

APPENDIX A-1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

)

TRANS INTERNATIONAL AIRLINES, )

INC., )

)

Plaintiff-Cross-Appellant, ) Nos.

) 77-3362

Vv. ) 77-3363

) 77-3395

INTERNATIONAL BROTHERHOOD OF ) 77-3781

TEAMSTERS, etc., AIRLINE )

DIVISION TEAMSTER LOCAL )

2707; MARVIN G, GRISWOLD; ) FILED

TEAMSTER LOCAL 732, ) March 14,1980

) Richard H. Deane

Defendants-Cross-Appellees. ) Clerk, U.S. Court

of Appeals

TRANS INTERNATIONAL AIRLINES,

INC. ,

Plaintiff-Appellee/

Cross Appellant, Nos.

78-1148

Vv. 78-1232

TEAMSTERS, et al., AIRLINE ORDER

DIVISION, TEAMSTERS LOCAL

2707, and AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL,

AFL-CIO,

Defendants-Appellants/

)

)

)

)

)

)

)

)

)

INTERNATIONAL BROTHERHOOD OF _)

)

)

)

)

)

)

)

Cross Appellees. )

)

2a-1

Before: GOODWIN, WALLACE, and KENNEDY,

Circuit Judges.

The panel has voted to amend the

Opinion filed on February 14, 1980 as fol-

lows (pages references are to slip opinion) :

At page 2056, left hand column, on

line 7, after the words "to permit an in-

junction to issue.", add the following

language:

The result contended for by TIA

and Judge Wallace in his thought-

ful opinion would mean that a

federal court has radically dif-

ferent powers to enjoin a strike

which clearly violates language

in the collective bargaining

agreement, depending on whether

the controlling statute is the

NLRA or the RLA. Admitting the

different genesis of the RLA,

see Chicago River, supra at 31-32

n.2, we do not think the statutory

policies are sufficiently distinct

to justify such different ap-

plication of the Norris-LaGuardia

Act's anti-injunction mandate.

At page 2057, right hand column, at

the end of the first full paragraph after the

3a-1

words "of the Norris-LaGuardia Act.", please

add the following:

Judge Wallace, dissenting in part,

contends that he "can see little

practical difference between an

injunction enforcing the arbi-

trator's decision that a strike

was forbidden by the contract,

despite an underlying major dis-

pute, and an injunction in support

of a judicial determination that

an anti-strike provision is not

only clear, but also valid and

binding under the Act." Dissent

Slip op. at 7 (footnote omitted).

Yet this is precisely the dis-

tinction which the Supreme Court

adopted in the very case cited

by Judge Wallace, Buffalo Forge.

See 428 U.S. at 404-17, especial-

Ty at 409,

APPENDIX B

lb

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

)

TRANS INTERNATIONAL AIRLINES, )

INC., )

)

Plaintiff-Cross-Appellant, )

) Nos.

Vv. ) 77-3362

) 77-3363

INTERNATIONAL BROTHERHOOD OF ) 77-3395

TEAMSTERS, etc., AIRLINE ) 77-3781

DIVISION TEAMSTER LOCAL 2707; )

MARVIN G. GRISWOLD; TEAMSTER )

LOCAL 732, )

) FILED

Defendants-Cross-Appellees, )June 27, 1980

)Richard H. Deane

Clerk, U.S. Court

TRANS INTERNATIONAL AIRLINES, )Of Appeals

INC.,

Nos.

Plaintiff-Appellee/Cross 78-1148

Appellant, 78-1232

Vv.

ORDER

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, et al., AIRLINE

DIVISION, TEAMSTERS LOCAL

2707, and AIR LINE PILOTS

ASSOCIATION, INTERNATIONAL,

AFL-CIO,

Defendants~-Appellants/

Cross~Appellees.

~—— Se eee ee eee eee eee ees aes aes

2b

Before: GOODWIN, WALLACE, and KENNEDY,

Circuit Judges.

The panel as constituted in the

above case has voted to deny the petition

for rehearing and to reject the suggestion

for a rehearing en banc.

The full court has been advised

of the suggestion for en banc rehearing,

and no judge of the court has requested a

vote on the suggestion for rehearing en

banc. Fed. R. App. P. 35(b).

The petition for rehearing is

denied and the suggestion for a rehearing

en banc is rejected.

In response to the petition for

rehearing, Judge Goodwin files the follow-

ing statement:

I would modify the majority

Opinion to hold that a sympathy

strike is a major dispute if the

work stoppage with which the

Sympathy strike is allied is a

major dispute. I do not read the

Railway Labor Act cases as extend-

ing to major disputes the power to

enjoin.

APPENDIX C “

le

APPENDIX C

TRANS INTL. AIRLINES v. TEAMSTERS

U.S. District Court,

Northern District of California

TRANS INTERNATIONAL AIRLINES, INC.

v. INTERNATIONAL BROTHERHOOD OF TEAM-

STERS, etc., et al., No. C-77-2010

RFP, September 26, 1977

Full Text of Opinion

PECKHAM, Chief Judge:-

Memorandum and Order re Flight At-

tendants

The plaintiff, Trans Inter-

national Airlines, Inc. (TIA) is a

large supplemental air carrier which

transports both military and civilian

passengers, as well as cargo. The

present TIA is the result of the

merger of TIA and another supplemental

Carrier, Saturn Airways, Inc. (Saturn),

on November 30, 1976. At present, all

of the flight attendants employed by

TIA are represented by the defendant

2c

International Brotherhood of Teamsters

(Teamsters) under a collective-bargaining

agreement effective July 21, 1974. In

February, 1976, the Teamsters served a

notice of intent to amend the agreement

under the terms of section 6 of the Rail-

way Labor Act (RLA), and negotiations be-

gan. The agreement expired by its terms

on April l, 1976, but continued in effect

while the parties exhausted the major dis-

pute procedures of section 6 of the RLA.

The National Mediation Board assigned a

mediator to the dispute on August 19,

1976. Almost one year later, in August,

1977, voluntary arbitration of the dis-

pute was refused by the Teamsters, the

mediator withdrew, and the 30-day cooling-

off period began. The cooling-off period

expired at midnight, September 7, 3977,

exhausting the procedures of the RLA and,

in the normal course, leaving the parties

3c

free to resort to self-help. However,

TIA applied to this court on September 7

for a temporary restraining order in

order to avert a strike scheduled to

begin at midnight that night. This court

issued such an order restraining all TIA

flight attendants from striking, but the

next day substantially modified that order

so that it applied only to those flight

attendants assigned to work on purely

military flights. TIA now moves for a

preliminary injunction against all striking

flight attendants, and raises the same

three issues as it did when seeking a

temporary restraining order.

TIA's first contention is that

a strike by the flight attendants would

violate the requirements of a Civil Aeronau-

tics Board order, CAB Order 76-5-60 (May

14, 1976), which imposed a set of labor

protective provisions (LPP's) as a

< 4c

condition to approving the Saturn-TIA

merger. LPP's are required by the CAB

for the purpose of ensuring a smooth in-

tegration of the collective bargaining

agreements of the merging corporations.

For present purposes, the importance of

the LPP's lies in their requirement that

disputes concerning the rearrangement

of employees upon merger, including dis-

putes as to the seniority rights of the

merged employees, must be submitted to

binding arbitration. TIA asserts that

since some seniority issues arising out

of the merger have not yet been resolved,

under the terms of the LPP's these issues

must be submitted to arbitration; and

consequently the Teamsters have no right

to strike over them. The problem with

this argument is that this strike has

almost nothing to do with merger-related

issues. Rather, the primary area of

disagreement between TIA and the Teamsters

is with regard to the economic issues --

wages, hours, and the like. These issues

are regulated exclusively by the RLA, and

the LPP's of the CAB order cannot apply to

these issues which are wholly separate from

the merger. It would be unreasonable to

hold that just because some of the open is-

sues in the negotiations for a new contract

are merger-related, the union has waived

its right to strike over any issue even

though the mandatory procedures of the RLA

have been completed. The purpose of the

LPP's is merely to help ease the integration

of two labor forces following a merger.

Nothing in this purpose requires such a

drastic curtailment of rights under the

RLA.

TIA's second contention is that the

Teamsters are not free to strike because

they have not complied with the require-

ments of Section Z First of the RLA, which

6c

requires all carriers and employees "to exert

every reasonable effort to make and maintain

agreements concerning rates of pay, rules,

and working conditions. .." This argument

is based upon the Supreme Court's decision in

Chicago & N. W. Ry. Co. v. United Trans-

portation Union, 402 U.S. 570, 77 LRRM 2337

(1971). That case held that Section 2 First

is more than just a statement of policy,

rather it imposes a judicially enforceabls

obligation to do more than just go through

the motions of complying with the mandatory

procedures of the RLA with no intention of

reaching an agreement. TIA has introduced

a substantial amount of evidence, including

several affidavits, in its attempt to show

that the Teamsters had no intention of

reaching an agreement and were merely

"going through the motions" in order to be

free to initiate a strike against TIA. This

evidence boils down to two major factual

points. First, although the Teamsters

originally proposed only 61 changes in the

agreement in early 1976, in March of 1977

the Teamsters presented an entirely new

proposal Contninine over 200 proposed chang-

es. TIA argues that this increase in the

outstanding issues is strongly indicative

that the Teamsters were not exerting a

“reasonable effort to make ... agree-

ments." However, it is undisputed that

for several months in late 1976, there was

little active negotiation taking place be-

tween the parties because of the difficulties

and uncertainties of consummating the

proposed Saturn-TIA merger. In fact, ne-

gotiations did not get underway again in

earnest until approximately the time the

Teamsters introduced their new proposal.

The testimony heard by the court on this

matter indicates that what the Teamsters

were trying to do with the introduction of

their March, 1977, proposal was to integrate

the old Saturn and old TIA agreements, taking

the best from both. Since the carriers were

newly merged and the Teamsters were now repre-

senting a larger group of flight attendants,

it hardly seems unreasonable for them to

modify their previous proposal substantially

to meet the new conditions.

Second, TIA accuses the Teamsters of

bad faith in that the union has refused over

the course of 18 months of bargaining to

bring their economic demands down to reason-

able levels. As TIA calculates it, the Team-

ster proposal that was on the table at the

beginning of September, 1977, demanded wages,

benefits, and working conditions that would

cost TIA $12,600,000 or 294% of its present

flight attendants' payroll (based on figures

reported on IRS form W-2). TIA argues that

this represents approximately three times

TIA's total profits for fiscal year 1976,

9c

indicating almost per se that the Team-

sters have not made a reasonable effort

to reach an agreement. The union disputes

these figures, particularly the estimated

294% cost increase of its proposal, but

the court finds it unnecessary to the

resolution of this question to determine

the actual figures.

TIA is effectively asking the court

to hold that the sheer size of the Team-

sters' economic demands, and the distance

between the parties after a long period of

negotiations, amounts to a lack of reason-

able effort by the union to reach an agree-

ment. The court can find no previous de~

cision under the RLA, nor can TIA suggest

one, which has inferred lack of reasonable

effort solely from the size of the

proposals put forth by the parties. Simi-

larly, there does not appear to be any such

decision under the roughly comparable "bad

10c

faith bargaining" standard of the Nation-

al Labor Relations Act. Indeed, such a

conclusion would seem to be precisely

what the Supreme Court warned against in

its Chicago & N.W. Ry. decision:

[G]reat circumspection should be used

in going beyond cases involving "desire

not to reach an agreement," for doing

so risks infringement of the strong

federal labor policy against govern-

mental interference with the sub-

stantive terms of collective-bargaining

agreements.

402 U.S. at 579, n.11, 77 LRRM at 2340.

Furthermore, it appears that the

negotiations between the parties have re-

sulted in agreement in many significant

areas, and there have been reductions in

the Teamsters economic proposals. It is

uncontested that, of the over 200 proposals

the Teamsters put forth in March, 1977,

only 85 open items remained as of Septem-

ber 7, 1977. Additionally, the Teamsters

have reduced their economic demands on at

least two occasions by fairly significant

lle

amounts. TIA itself has put forth only

one complete proposal during the entire

course of the negotiations. Under these

circumstances, it is not unreasonable be-

havior for the Teamsters to refuse to

unilaterally reduce their demands. It

is clear to the court that both parties

have been obstinate and unyielding in

these negotiations. However, their be-

havior is much better characterized as

simply hard bargaining rather than a

conscious attempt by either side to

avoid reaching an agreement. As the

Southern District of New York concluded

in a decision closely examining the

cases in this area, "a party does not

violate its duty under the [Railway

Labor] Act if it chooses to be adamant

in its position." REA Express, Inc. v.

Brotherhood of Railway Clerks, 358

F.Supp. 760, 772, n.43, 83 LRRM 2153,

l2c

2161-2162 (S.D.N.Y. 1971) (citing cases

both prior to and after Chicago & N.W. Ry.).

TIA's final contention relates only

to its military flights. The July 21, 1974

collective-bargaining agreement between the

parties specifically provides as part of the

No Strike-No Lockout provisions that:

The Union further agrees that the Flight

Attendants will continue to perform all

duties which are necessary to enable the

Company to operate flights for or in

Support of traffic sponsored by the

Department of Defense of the United

States of America, even though Flight

Attendants withdraw from commercial

airline service because of a dispute

arising out of negotiations for a new

contract after the expiration date of

this Agreement and/or during and after

all procedures of the Railway Labor

Act have been exhausted.... [Art. XII,

Sec. D.]

The clear import of tits: deetiniens is to ex-

tend the no-strike obligation of the flight

attendants beyond the term of the collective-

bargaining agreement, even beyond the ex-

piration of the 30-day cocling-off period

mandated by the RLA, when the Teamsters would

otherwise have the right to strike against

all of TIA's operations. The Teamsters do

not dispute the meaning of this provision,

but argue that it is no longer in effect.

During the negotiations, the Teamsters re-

quested modification of the language of

this clause. They argue that this provi-

sion, along with every other issue on which

no agreement has been reached, has thus

been "processed through" the procedures

of the RLA and is no longer of any effect

once the cooling-off period has ended.

This argument might be correct with re-

spect to the other clauses in the 1974

collective-bargaining agreement that are

being renegotiated, but it totally ignores

the specific language of this provision.

This military no-strike clause could not

be clearer in expressing its intent that

the flight attendants thereby give up

their right to strike TIA's military

l4c

flights even during those periods when

they might strike all of TIA's other

Operations. This clearly expressed in-

tent must prevail over any general rule

that contract language which is being

renegotiated is no longer effective fol-

lowing the 30-day cooling-off period.

Accordingly, it is hereby

ORDERED that the defendant International

Brotherhood of Teamsters, their offi-

cers, agents, representatives, members,

servants, employees, and any and all

persons acting in concert or participation

with them, are hereby restrained from

authorizing, inducing, causing participa-

tion in, or otherwise aiding and abetting

in any concerted refusal to work and/or

work stoppage by any TIA flight attendant

assigned to work on any flight for or in

Support of traffic sponsored by the De-

partment of Defense. In all other re-

spects, the plaintiff's motion for a

15c

preliminary injunction with respect to

TIA's flight attendants is denied.

It has come to the attention of

the court that some TIA flight attendants

working on military flights pursuant to

the Temporary Restraining Order issued by

this court on September 8, 1977, may have

been stranded by TIA in cities away from

their homes. Such treatment of TIA flight

attendants violates in several respects

the provisions of the parties' July 21,

1974, collective-bargaining agreement.

These alleged actions on the part of TIA

greatly concern the court, and would be

considered by the court to be an abuse of

TIA's contractual right to keep military

flights operating during a flight at-

tendants' strike if proven. The strand-

ings are alleged to be designed to coerce

individual flight attendants to break

their legal strike against TIA's commer-

cial flights. Therefore, counsel for TIA

l6c

and the Teamsters are requested to draft

and submit to the court as soon as possible

an order restraining TIA from stranding any

flight attendants away from their home base

in connection with the operation of any

military flights during the remainder of

this strike.

IT IS SO ORDERED.

APPENDIX D

ld

APPENDIX D

TRANS INTERNATIONAL AIRLINES,

INC., Plaintiff,

Vv.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

ETC., AIRLINE DIVISION, Teamster

Local 2707, Margin G. Griswold, Team-

ster Local 732, Airline Pilots As-

sociation, International, Defendants.

No. C-77-2011 RFP.

United States District Court,

N. D. California.

Sept. 29, 1977.

Michael R. Marron, Robert T.

Fries, Steinhart, Goldberg, Feigenbaum

& Ladar, San Francisco, Cal., Robert W.

Ashmore, Fisher & Phillips, Atlanta,

Ga., for plaintiff Trans Intern. Air-

lines.

Kenneth N. Silbert, Brundage,

Beeson, Tayer & Kovach, San Francisco,

Cal., Roland P. Wilder, Jr., Washing-

ton, D.C., John Paul Jennings, Jennings,

Gartland & Tilly, San Francisco, Cal.,

for defendants Intern. Broth. of Team-

sters, etc., et al.

MEMORANDUM AND ORDER RE

FLIGHT ENGINEERS

AND PILOTS

PECKHAM, Chief Judge.

2d

This case raises the issue of this

court's power to enjoin Sympathy strikes

under the Railway Labor Act (RLA). The

plaintiff, Trans International Airlines,

Inc. (TIA), is a supplemental air Carrier,

and is the surviving corporation of the

merger of Saturn Airways, Inc. (Saturn)

and TIA on November 30, 1976. All of

the flight engineers presently employed

by TIA are represented by defendant In-

ternational Brotherhood of Teamsters

(Teamsters), but under two different col-

lective-bargaining agreements. Those

flight engineers, as well as pilots and

navigators, who were employed by TIA be-

fore the merger are governed by an

agreement that went into effect July 21,

1974, while flight engineers formerly

employed by Saturn come under an agree-

ment effective November 17, 1974.

TIA's pilots are similarly divided.

3d

The pre-merger TIA pilots were repre-

sented by the Teamsters and they still

work under the July 21, 1974, contract.

The former Saturn pilots, on the other

hand, were represented by the Airline

Pilots Association (ALPA), and they are

governed by an agreement effective May

23, 1972. Since the merger, all of

TIA's pilots have been represented by

ALPA. All three of these collective-

bargaining agreements are still in

force, although they have been sub-

sequently modified by letter agreements

not relevant to this dispute.

The issues to be decided in

this case involve the attempts by both

groups of flight engineers and both

groups of pilots to engage in a sym-

pathy strike in support of a primary

strike by TIA's flight attendants that

commenced on September 9, 1977. The

4d

facts surrounding that labor dispute

are fully set out in the court's

memorandum and order of September 26,

1977, case No. C-77-2010 RFP. Prior

to the commencement of the strike, on

September 7, 1977, this court issued a

temporary restraining order prohibiting

all flight engineers from refusing to

cross any picket lines. The next day,

September 8, that order was substantial-

ly modified to restrain only former

Saturn flight engineers and flight engi-

neers working on TIA's military flights

from honoring any picket lines. After

listening to further argument on this

matter at a hearing held on September

15, 1977, the court must now decide

whether a preliminary injunction should

issue. At the same time, the court al-

so has before it TIA's application for

a temporary restraining order to halt a

Sympathy strike by TIA pilots.

Whether or not these four groups

of TIA employees have the right to engage

in a sympathy strike must be determined

by the terms of the applicable collective-

bargaining agreement. The three agree-

ments contain a variety of relevant

language -- general no-strike pledges,

picket line clauses, and military no-strike

1

provision. All parties agree that any

1. PRE-MERGER TIA FLIGHT ENGINEERS AND

PILOTS

(Agreement of July 21, 1974)

"SECTION 21

A. [General No Strike Clause] During

the term of this Agreement, the Union

shall not authorize, cause, sanction

or engage in any strike, picketing,

slowdown or stoppage of work.

D. [Military No Strike Clause] The

Union further agrees that the Crewmem-

bers will continue to perform all

duties which are necessary to enable

the Company to operate flights for or

in support of traffic sponsored by the

Department of Defense of the United

States of America, even though such

6d

dispute over the proper construction of

these clauses is a "minor dispute" under

the RLA, which either the employer or the

Crewmembers withdraw from commercial

airline service because of a dispute

arising out of negotiations for a new

contract after the expiration date of

this Agreement and/or during and

after all procedures of the Railway

Labor Act have been exhausted,

E. [Picket Line Clause] It shall not

be a violation of this Agreement, and

it shall not be a cause for discharge

or disciplinary action in the event a

Crewmember refuses to go through or

work behind a legal primary picket

line maintained by the Union in con-

nection with a dispute between the

Company and the Union involving any

flight personnel represented by the

Union."

FORMER SATURN FLIGHT ENGINEERS

(Agreement of November Bey aera)

"Section 24

L. [General No Strike Clause] The

Company will not lock out any em-

ployees covered by this Agreement

and the Union and its members, in-

dividually and collectively, agree

that they will not authorize or

7d

union may take to binding arbitration.

RLA Section 3, First, 45 U.s.c. § 153,

First. The Teamsters and ALPA argue that

take part in any strike or picketing

at the Company's premises during the

life of this Agreement, until the

procedures for settling disputes in-

volving employees covered by this

Agreement, as provided for by the

Railway Labor Act, have been exhaust-

ed by both parties.

P. [Military No Strike Clause] Conduct

of Military Operations--It is mutually

agreed that during the term of the

Agreement between the Company and its

Flight Engineers as represented by the

Union, that the Flight Engineers will

not engage in any strike or work stop-

page on purely military operations

conducted by the Company."

FORMER SATURN PILOTS

(Agreement of May 23, 1972)

This contract contains no general

no-strike agreement as such, although

it does, in Section 26 C 12, reserve

to each party all the rights and

privileges accorded under the provi-

sions of the Railway Labor Act.

"Section 29

8d

their members have the right to honor the

flight attendants' picket lines under the

terms of the three applicable collective-

bargaining agreements. As to all three

agreements, TIA disagrees with the unions'

reading of the agreements, and wishes to

take the dispute to arbitration. Central

to TIA's claim for relief is its assertion

that the Supreme Court's decision in

Brotherhood of Railroad Trainmen v. Chicago

~

River & I. R. Co., 353 U.S. 30,

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