# Petition — Air Line Pilots Ass'n, International v. Trans International Airlines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0487%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 449 U.S. 1110 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0487%3A1. Public record. Not legal advice.