Appendix — INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE DIVISION v. TRANS INTERNATIONAL AIRLINES, INC. (Nos. 80-478, 80-470, 80-480)

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Text

| Supreme Court, U. S.

FILED

80-478 SEP 25 1980

No.

| MICHAEL BODAK, JR., CLERK

rer,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE

DIVISION; TEAMSTERS LOCAL 2707; MARVIN G. GRIS-

WOLD; TEAMSTERS LOCAL 732,

Petitioners,

TRANS INTERNATIONAL AIRLINES, INC.,

Respondent.

APPENDICES TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

DAVID PREVIANT

ROBERT M. BAPTISTE

ROLAND P. WILDER, JR.

JOSEPH E. SANTUCCI, JR.

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

Area Code 202, 624-6949

Attorneys for Petitioners,

Iniernational Brotherhood

of Teamsters, et al.

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

OSD

Appendix

INDEX

: Related Decision Of The District Court

and Judgment Granting and Denying,

In Part, Preliminary Injunctive Relief..

: Decision Of The District Court and

Judgment Granting and Denying, In

Part, Preliminary Injunctive Relief......

: Adjudication of Contempt ......................

: Findings and Conclusions: Purging of

a cccctatmesbineemnacninne

; Order To Show Cause ...............ccccccccsesss:

: Decision Of The Court of Appeals and

Decision on Rehearing .........0.........0....0...

: Statutory Provisions ..........................00..

: Pertinent Contract Provisions ................

Page

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C-77-2010 RFP

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA,

AIRLINE DIVISION: TEAMSTERS LOCAL 2707, AIRLINE,

AEROSPACE AND ALLIED EMPLOYEES, affiliated with

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA,

et al.,

Defendants.

MEMORANDUM AND ORDER RE

FLIGHT ATTENDANTS

The plaintiff, Trans International Airlines, Inc. (TIA)

is a large supplemental air carrier which transports both

military and civilian passengers, as well as cargo. The

present TIA is the result of the merger of TIA and an-

other supplemental carrier, Saturn Airways, Inc. (Sat-

urn), on November 30, 1976. At present, all of the flight

attendants employed by TIA are represented by the de-

fendant International Brotherhood of Teamsters (Team-

sters) under a collective-bargaining agreement effective

July 21, 1974. In February, 1976, the Teamsters served

a notice of intent to amend the agreement under the terms

of section 6 of the Railway Labor Act (RLA), and nego-

tiations began. The agreement expired by its terms on

April 1, 1976, but continued in effect while the parties ex-

hausted the major dispute procedures of section 6 of the

RLA. The National Mediation Board assigned a mediator

to the dispute on August 19, 1976. Almost one year later,

in August, 1977, voluntary arbitration of the dispute was

refused by the Teamsters, the mediator withdrew, and

the 30-day cooling-off period began. The cooling-off period

expired at midnight, September 7, 1977, exhausting the

procedures of the RLA and, in the normal course, leaving

the parties free to resort to self-help. However, TIA ap-

plied to this court on September 7 for a temporary re-

straining order in order to avert a strike scheduled to

begin at midnight that night. This court issued such an

order restraining all TIA flight attendants from striking,

but the next day substantially modified that order so that

it applied only to those flight attendants assigned to work

on purely military flights. TIA now moves for a pre-

liminary injunction against all striking flight attendants,

and raises the same three issues as it did when seeking

a temporary restraining order.

TIA’s first contention is that a strike by the flight

attendants would violate the requirements of a Civil Aero-

nautics Board order, CAB Order 76-5-60 (May 14, 1976),

which imposed a set of labor protective provisions

(LPP’s) as a condition to approving the Saturn-TIA

merger. LPP’s are required by the CAB for the purpose

of ensuring a smooth integration of the collective bargain-

ing agreements of the merged corporation. For present

purposes, the importance of the LPP’s lies in their re-

quirement that disputes concerning the rearrangement of

employees upon merger, including disputes as to the sen-

iority rights of the merged employees, must be submitted

to binding arbitration. TIA asserts that since some sen-

iority issues arising out of the merger have not yet been

resolved, under the terms of the LPP’s these issues must

be submitted to arbitration; and consequently the Team-

sters have no right to strike over them. The problem with

this argument is that this strike has almost nothing to do

with merger-related issues. Rather, the primary area of

disagreement between TIA and the Teamsters is with re-

gard to the economic issues—wages, hours, and the like.

These issues are regulated exclusively by the RLA, and

the LPP’s of the CAB order cannot apply to these issues

which are wholly separate from the merger. It would be

unreasonable to hold that just because some of the open

issues in the negotiations for a new contract are merger-

related, the union has waived its right to strike over any

issue even though the mandatory procedures of the RLA

have been completed. The purpose of the LPP’s is merely

to help ease the integration of two labor forces following

a merger. Nothing in this purpose requires such a dras-

tic curtailment of rights under the RLA.

TIA’s second contention is that the Teamsters are not

free to strike because they have not complied with the

requirements of Section 2 First of the RLA, which re-

quires all carriers and employees “to exert every reason-

able effort to make and maintain agreements concerning

rates of pay, rules, and working conditions . . .” This

argument is based upon the Supreme Court’s decision in

Chicago & N.W. Ry. Co. v. United Transportation Union,

402 U.S. 570 (1971). That case held that Section 2 First

is more than just a statement of policy, rather it im-

poses a judicially enforceable obligation to do more than

just go through the motions of complying with the manda-

tory procedures of the RLA with no intention of reaching

an agreement. TIA has introduced a substantial amount

of evidence, including several affidavits, in its attempt to

show that the Teamsters had no intention of reaching

an agreement and were merely “going through the mo-

tions” in order to be free to initiate a strike against TIA.

This evidence boils down to two major factual points.

First, although the Teamsters originally proposed only 61

changes in the agreement in early 1976, in March of 1977

the Teamsters presented an entirely new proposal con-

taining over 200 proposed changes. TIA argues that this

increase in the outstanding issues is strongly indicative

that the Teamsters were not exerting a “reasonable ef-

fort to make . . . agreements.” However, it is undis-

puted that for several months in late 1976, there was little

active negotiation taking place between the parties be-

cause of the difficulties and uncertainties of consummat-

ing the proposed Saturn-TIA merger. In fact, negotia-

tions did not get underway again in earnest until ap-

proximately the time the Teamsters introduced their new

proposal. The testimony heard by the court on this mat-

ter 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, tak-

ing 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 unrea-

sonable for them to modify their previous proposal sub-

stantially to meet the new conditions.

Second, TIA accuses the Teamsters of bad faith in

that the union has refused over the course of 18 months

of bargaining to bring their economic demands down to

reasonable levels. As TIA calculates it, the Teamsters

proposal that was on the table at the beginning of Sep-

tember, 1977, demanded wages, benefits, and working

conditions that would cost TIA $12,600,000, or 294% of

its present flight attendants’ payroll (based on figures re-

ported on IRS form W-2). TIA argues that this repre-

sents approximately three times TIA’s total profits for

fiscal year 1976, indicating almost per se that the Team-

sters have not made a reasonable effort to reach an agree-

ment. The union disputes these figures, particularly the

estimated 294% cost increase of its proposal, but the

court finds it unnecessary to the resolution of this ques-

tion to determine the actual figures.

TIA is effectively asking the court to hold that the

shec=sise-of the Teamsters’ economic demands, and the

distance between the parties after a long period of negoti-

ations, amounts to a lack of reasonable effort by the union

to reach an agreement. The court can find no previous

decision under the RLA, nor can TIA suggest one, which

has inferred lack of reasonable effort solely from the size

of the proposals put forth by the parties. Similarly, there

does not appear to be any such decision under the roughly ~

comparable “bad faith bargaining” standard of the Na-

tional Labor Relations Act. Indeed, such a conclusion

would seem to be precisely what the Supreme Court

warned against in its Chicago & N.W. Ry. decision:

[G]reat circumspection should be used in going be-

yond cases involving “desire not to reach an agree-

ment,” for doing so risks infringement of the strong

federal labor policy against governmental interfer-

ence with the substantive terms of collective-bar-

gaining agreements.

402 U.S. at 579, n.11.

Furthermore, it appears that the negotiations between

the parties have resulted in agreement in many significant

areas, and there have been reductions in the Teamsters

economic proposals. It is uncontested that, of the over

200 proposals the Teamsters put forth in March, 1977,

only 85 open items remained as of September 7, 1977.

Additionally, the Teamsters have reduced their economic

demands on at least two occasions by fairly significant

amounts. TIA itself has put forth only one complete pro-

posal during the entire course of the negotiations. Under

these circumstances, it is not unreasonable behavior for

the Teamsters to refuse to unilaterally reduce their de-

mands. It is clear to the court that both parties have

been obstinate and unyielding in these negotiations. How-

ever, their behavior is much better characterized as simp-

ly hard bargaining rather than a conscious attempt by ei-

ther side to avoid reaching an agreement. As the Southern

District of New York concluded in a decision closely ex-

amining the cases in this area, “a party does not violate

its duty under the [Railway Labor] Act if it chooses

to be adamant in its position.” REA Express, Inc. V.

Brotherhood of Railway Clerks, 358 F. Supp. 760, 772

n.43 (S.D.N.Y. 1971) (citing cases both prior to and

after Chicago & N.W. Ry.).

TIA’s final contention relates only to its military

flights. The July 21, 1974 collective-bargaining agree-

ment between the parties specificaily provides as part of

the No Strike-No Lockout provisions that:

The Union further agrees that the Flight Attendants

will continue to perform all duties which are neces-

sary to enable the Company to operate flights for or

in support of traffic sponsored by the Department of

Defense of the United States of America, even

though Flight Attendants withdraw from commercial

airline service because of a dispute arising out of

negotiations for a new contract after the expiration

date of this Agreement and/or during and after all

procedures of the Railway Labor Act have been

exhausted. ... [Art. XII, Sec. D.]

The clear import of 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 against all of TIA’s operations. The

Teamsters do not dispute the meaning of this provision,

but argue that it is no longer in effect. During the

negotiations, the Teamsters requested modification of the

language of this clause. They argue that this provision,

along with every other issue on which no agreement has

been reached, has thus been “processed through” the pro-

cedures of the RLA and is no longer of any effect once

the cooling-off period had ended. This argument might

be correct with respect to the other clauses in the 1974

collective-bargaining agreement that are being renegoti-

ated, but it totally ignores the specific language of this

provision. This military no-strike clause could not be

clearer in expressing its intent that the flight attendants

thereby give up their right to strike TIA’s military flights

even during those periods when they might strike all of

TIA’s other operations. This clearly expressed intent

must prevail over any general rule that contact language

which is being renegotiated is no longer effective following

the 30-day cooling-off period.

Accordingly, it is hereby ORDERED that the defend-

ant International Brotherhood of Teamsters, their officers,

agents, representatives, members, servants, employees, and

any and all persons acting in concert or participation with

them, are hereby restrained from authorizing, inducing,

causing participation in, or otherwise aiding and abetting

in any concerted refusal to work and/or work stoppage

by any TIA flight attendant assigned to work on any

flight for or in support of traffic sponsored by the Depart-

ment of Defense. In all other respects, the plaintiff’s

motion for a preliminary injunction with respect to TIA’s

flight attendants is denied.

It has come to the attention of the court that some

TIA flight attendants working on military flights pur-

suant to the Temporary Restraining Order issued by this

court on September 8, 1977, may have been stranded by

TIA in cities away from their homes. Such treatment of

TIA flight attendants violates in several respects the

provisions of the parties’ July 21, 1974, collective-bargain-

ing agreement. These alleged actions on the part of

TIA greatly concern the court, and would be considered

by the court to be an abuse of TIA’s contractual right

to keep military flights operating during a flight attend-

ants’ strike if proven. The strandings are alleged to be

designed to coerce individual flight attendants to break

their legal strike against TIA’s commercial flights. There-

fore, counsel for TIA and the Teamsters are requested

to draft and submit to the court as soon as possible an

order restraining TIA from stranding any flight attend-

ants away from their home base in connection with the

operation of any military flights during the remainder

of this strike.

IT IS SO ORDERED.

Dated: September 26, 1977

/s/ Robert F. Peckham

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C-77-2010 RFP

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA,

AIRLINE DIVISION; TEAMSTERS LOCAL 2707, AIRLINE,

AEROSPACE AND ALLIED EMPLOYEES, affiliated with

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA,

et al.,

Defendants.

J UDGMENT

This action came on for hearing before the court, the

Honorable Robert F. Peckham, District Judge, presiding,

and the issues having been duly heard and a decision

having been duly rendered upon plaintiff’s motion for

preliminary injunction,

IT IS ORDERED AND ADJUDGED that the defend-

ant, International Brotherhood of Teamsters, its officers,

agents, representatives, members, servants, employees,

and any and all persons acting in concert or participation

with them, are hereby restrained from authorizing, in-

ducing, causing participation in, or otherwise aiding and

abetting in any concerted refusal to work and/or work

stoppage by any TIA flight attendant assigned to work

on any flight for or in support of traffic sponsored by

the Department of Defense.

That the plaintiff Trans International Airlines, Inc.’s

motion for preliminary injunction is hereby denied in all

other respects.

10a

That the plaintiff, TILA, its agents, officers, employees

and all other persons acting in concert with plaintiff

shall take the following actions:

(1) Provide all flight attendants performing flight

assignments in connection with the operation of mili-

tary flights pursuant to the court’s memorandum and

order of September 26, 1977, with all benefits described

in the flight attendants agreement in effect by its terms

from July 1, 1974, to April 1, 1976, while said flight

attendants are performing such work, or are located away

from their domiciles by reason of having performed

such work.

(2) Return all flight attendants located away from

their domiciles by reason of having performed work in

connection with military flights to their domicile at the

end of their flight assignments in a manner consistent

with the flight attendants agreement and past practice.

Dated: October 12, 1977

/s/ Robert F. Peckham

United States District Judge

lla

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C-77-2011 RFP

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff,

Vv.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC., AIR-

LINE DIVISION; TEAMSTER LOCAL 2707; MARVIN G.

GRISWOLD; TEAMSTER LOCAL 732; AIRLINE PILOTS As-

SOCIATION, INTERNATIONAL,

Defendants.

MEMORANDUM AND ORDER RE FLIGHT

ENGINEERS AND PILOTS

This case raises the issue of this court’s power to en-

join sympathy strikes under the Railway Labor Act

(RLA). The plaintiff, Trans International Airlines, Inc.

(TIA), is a supplemental air carrier, and is the surviv-

ing corporation of the merger of Saturn Airways, Inc.

(Saturn) and TIA on November 30, 1976. All of the

flight engineers presently employed by TIA are repre-

sented by defendant International Brotherhood of Team-

sters (Teamsters), but under two different collective-

bargaining agreements. Those flight engineers, as well as

pilots and navigators, who were employed by TIA before

the merger are governed by an agreement that went

into effect July 21, 1974, while flight engineers formerly

employed by Saturn came under an agreement effective

November 17, 1974.

TIA’s pilots are similarly divided. The pre-merger

TIA pilots were represented by the Teamsters and they

12a

still work under the July 21, 1974, contract. The former

Saturn pilots, on the other hand, were represented by the

Airline Pilots Association (ALPA), and they are gov-

erned by an agreement effective May 23, 1972. Since the

merger, all of TIA’s pilots have been represented by

ALPA. All three of these collective-bargaining agree-

ments are still in force, although they have been subse-

quently modified by letter agreements not relevant to

this dispute.

The issues to be decided in this case involve the at-

tempts by both groups of flight attendants and both

groups of pilots to engage in a sympathy strike in sup-

port of a primary strike by TIA’s flight attendants that

commenced on September 9, 1977. The facts surrounding

that labor dispute are fully set out in the court’s memo-

randum and order of September 26, 1977, case No. C-

77-2010 RFP. Prior to the commencement of the strike,

on September 7, 1977, this court issued a temporary

restraining order prohibiting all flight engineers from

refusing to cross any picket lines. The next day, Sep-

tember 8, that order was substantially modified to re-

strain only former Saturn flight engineers and flight

engineers working on TIA’s military flights from honor-

ing any picket lines. After listening to further argu-

ment on this matter at a hearing held on September 15,

1977, the court must now decide whether a preliminary

injunction should issue. At the same time, the court also

has before it TIA’s application for a temporary restrain-

ing order to hafta sympathy strike by TIA pilots.

Whether or not these four groups of TIA employees

have the right to engage in a sympathy strike must be

determined by the terms of the applicable collective-

bargaining agreement. The three agreements contain a

variety of relevant language—general no-strike pledges,

13a

picket line clauses, and military no-strike provisions."

All parties agree that any dispute over the proper con-

1 PRE-MERGER TIA FLIGHT ENGINEERS AND PILOTS

(Agreement of July 21, 1974)

“SECTION 21

A. [General No Strike Clause] During the term of this Agree-

ment, 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 Crewmembers 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

commercial airline service because of a dispute arising out of nego-

tiations for a new contract after the expiration date of this Agree-

ment 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 Agree-

ment, 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 connection

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 employees covered by this Agreement and the Union and its

members, individually and collectively, agree that they will not

authorize or take part in any strike or picketing at the Company’s

premises during the life of this Agreement, until the procedures for

settling disputes involving employees covered by this Agreement,

as provided for by the Railway Labor Act, have been exhausted

by both parties.

P. [Military No Strike Clause] Conduct of Military Opera-

tions—It is mutually agreed that during the term of the Agree-

ment between the Company and its Flight Engineers as _repre-

l4a

struction of these clauses is a “minor dispute” under the

RLA, which either the employer or the union may take

to binding arbitration. RLA Section 3, First, 45 U.S.C.

§ 153, First. The Teamsters and ALPA argue that their

members have the right to honor the flight attendants’

picket lines under the terms of the three applicable

collective-bargaining agreements. As to all three agree-

ments, TIA‘;3isagrees with the unions’ reading of the

agreements, and wishes to take the dispute to arbitration.

Central to TIA’s claim for relief is its assertion that the

Supreme Court’s decision in Brotherhood of Railroad

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

(1957), requires this court to enjoin any actions by the

unions which would alter the status quo pending ar-

bitration of this minor dispute. A brief look at the his-

torical development of this area of labor law is necessary

to determine the correctness of TIA’s assertion.

The Chicago River decision, supra, created an excep-

tion to the general command of section 4 of the Norris-

sented by the Union, that the Flight Engineers will not engage

in any strike or work stoppage 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,

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 commodities or military personnel.”

l5a

LaGuardia Act, 29 U.S.C. § 104, that federal courts should

not issue injunctions in labor disputes. The Court held

there that an injunction could issue to prevent a strike

while minor disputes were arbitrated as required by the

RLA. The minor disputes in that case were 21 individual

grievances; claims for additional compensation or for

reinstatement. The Court’s reasoning was that it was

the intent of Congress to bring about stability in the

labor relations of “this most important national indus-

try,” where a strike meant disruption and economic in-

jury to a great many people. Therefore, Congress saw

fit to ban outright strikes within the industry over

individual grievances. Although the Court spoke in gen-

eral terms, using the statutory phrase “minor disputes,”

it is evident that the Court was primarily concerned with

preventing strikes over everyday grievances.? In the

years since this decision, however, the rule of Chicago

River has been applied very broadly. Federal courts

have routinely issued injunctions against any strike ac-

tion, including sympathy strikes, where any minor dis-

pute has been found to exist. Hughes Air Corp. Vv.

Airline Pilots Assoc., No. 71-3034 (9th Cir., Jan. 7,

1972) ; Northwest Airlines, Inc. v. Airline Pilots Assoc.,

442 F.2d 246 (8th Cir. 1970), reaffirmed 442 F.2d 251

(1971), cert. denied, 404 U.S. 871 (1971).

2 This can be most clearly seen in the court’s characterization of

minor disputes as “controversies over the meaning of an existing

collective-bargaining agreement in a particular fact situation, gen-

erally involving only one employee.” 358 U.S. at 33.

8In 1974, this court issued a temporary restraining order in a

sympathy strike situation similar to the one in this case and in-

volving some of the same parties. Saturn Airways, Inc. v. Inter-

national Brotherhood of Teamsters, Civ. No. C-14-1305 RHS (N.D.

Cal. 1974). This decision, like those cited in the text, was pre-

Buffalo Forge and is distinguishable for the reasons set forth in

this memorandum.

16a

The analagous situation under the National Labor Re-

lations Act, on the other hand, was originally resolved

the opposite way. Sinclair Refining Co. v. Atkinson, 370

U.S. 195 (1962), held that a strike over an issue the

parties expressly agreed to arbitrate could not be en-

joined because of the prohibition of section 4 of the

Norris-LaGuardia Act. However the Court in Boys

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

(1970), overruled Sinclair Refining and stated in broad

language that a no-strike clause could be enforced by a

federal court injunction pending arbitration under a:

broad arbitration clause. Boys Markets, like Chicago

River before it, was thereafter applied automatically by

most federal courts. If a broad arbitration clause was

accompanied by a no-strike pledge and the dispute was

arguably arbitrable, an injunction would almost invar-

iably issue, even against sympathy strikes. NAPA Pitts-

burgh, Inc. v. Automotive Chauffeurs, 502 F.2d 321 (38d

Cir. 1974) (en banc); Island Creek Coal Co. v. Mine

Workers, 507 F.2d 650 (8d Cir. 1975); Armco Steel

Corp. v. Mine Workers, 505 F.2d 1129 (4th Cir. 1974) ;

Valmac Industries v. Food Handlers, 519 F.2d 263 (8th

Cir. 1975), vacated 428 U.S. 906 (1976). Contra, Amstar

Corp. v. Meat Cutters, 468 F.2d 1872 (5th Cir. 1972).

This mechanical approach was recently rejected out-

right by the Supreme Court in Buffalo Forge, Inc. v.

Steelworkers, 428 U.S. 397 (1976). Buffalo Forge ex-

plained that Boys Markets established only a narrow ex-

ception to the general prohibition of the Norris-LaGuardia

Act. In the case of sympathy strikes, where the under-

lying issue (the primary strike) is not arbitrable, the

Court held that Norris-LaGuardia still prohibits the is-

suance of an injunction to halt the strike. There are

compelling reasons for reaching this result. If the em-

ployer can obtain an injunction just by raising an arbi-

trable issue of contract interpretation, then sympathy

strikes could be enjoined in every case pending arbitra-

17a

tion. It is almost always possible to dispute in good faith

the meaning of even the clearest contract language in-

tended to give a union the right to honor another’s

picket lines. A union’s hard won contractual right to

engage in sympathy strikes would be lost for that critical

period at the beginning of the primary strike when sup-

port for the strike from other unions is generally most

crucial. The core meaning of Buffalo Forge then, is that

sympathy strikes present a different situation than strikes

over grievances concerning the terms and conditions of

employment and that the logic of Boys Markets is thus

not applicable to the sympathy strike situation. Rather,

a fresh analysis of the situation is required.

The court can discern no reason why this teaching

of Buffalo Forge should not be equally applicable to the

RLA and the Chicago River decision. Although there are

fundamental differences between the RLA and the N LRA,

and only rough analogies may be drawn between the two

statutory schemes, nevertheless the core reasons for reach-

ing the Buffalo Forge result are just as compelling in the

RLA context as under the NLRA. This case presents

a situation greatly resembling that in Buffalo Forge. In

fact, the former Saturn flight engineers and pilots are

identically situated with the union members in Buffalo

Forge. These employees have a no-strike pledge in their

agreement, but contend that this does not prevent them

from honoring the flight attendants’ picket lines. The

pre-merger TIA flight engineers and pilots, on the other

hand, present an even more compelling case for reaching

the Buffalo Forge result, for their contract contains an

express provision permitting the honoring of picket lines.

If TIA can obtain an injunction against a sympathy

strike here by simply disputing the interpretation of the

picket line clause, these employees will have effectively

lost the benefit of this bargained-for contract provision.

The result reached here does not conflict with the

policies underlying the RLA and the Chicago River de-

18a

cision. The RLA provides for the mandatory arbitration

of minor disputes, and Chicago River permits an injunc-

tion pending their arbitration, in order to minimize in-

terruptions in the operation of the vital industries cov-

ered by the RLA. However, the RLA does permit strikes

in “major disputes,” disputes stemming from the bar-

gaining over a new contract. The primary strike by the

flight attendants which underlies this case is just such a

permitted strike, for the RLA’s prerequisites to striking

have all been completed. Commerce is already being dis-

rupted and TIA already has a strike on its hands with

the full blessing of the RLA. A sympathy strike possibly

may enhance the effectiveness or the extent of the work

stoppage, but there is by definition already an underly-

ing primary strike. Disagreement over a union’s right to

honor picket lines is a minor dispute within the RLA

definition. But a sympathy strike situation under the

RLA will always be associated with a related major

dispute, and it has elements in common with the major

dispute that clearly distinguish a sympathy strike from

other types of minor disputes. The court thus finds the

rationale of Chicago River to be inapplicable here in light

of the teaching of Buffalo Forge and the compelling rea-

sons for following that decision outlined above.

In one important respect, however, the facts of this

case significantly differ from those in Buffalo Forge. All

three collective-bargaining agreements before the court

contain a special military no-strike clause in addition to

any general no-strike pledge. Both the agreements for

the pre-merger TIA flight engineers and pilots, and for

the former Saturn pilots clearly state that military flights

are to be continued even if the union lawfully strikes

all other flights. These special provisions are required

by the terms of the Department of Defense contracts

with TIA in order to assure continued service for the

military. It would be going well beyond the facts of

Buffalo Forge for this Court to hold that because the

19a

union can generate a minor dispute requiring arbitration

over the meaning of these clauses, no injunction should

issue pending arbitration. This would pervert Buffalo

Forge, for the employer would then lose the benefit of its

bargain that military flights would continue during a

strike. Furthermore, since the flight attendants have

a similar clause in their agreement and accordingly have

been enjoined from extending their strike to military

flights, any sympathy strike of military flights would

do more than just supplement a preexisting work stop-

page. Rather, such a sympathy strike would involve a

separate and distinct work stoppage in an area of TIA’s

operations exempt from the primary strike. This would

strongly conflict with the aim of the RLA to reduce

strikes to an absolute minimum, and the court thus does

not feel that an extension of Buffalo Forge to the situa-

tion regarding military flights would be appropriate.

Although the court holds that the principles of Buffalo

Forge do apply to the RLA, the differences between the

statutory schemes of the RLA and NLRA demand great

caution in applying that case beyond its facts to the

RLA context.

Accordingly, it is hereby ORDERED that the defend-

ant International Brotherhood of Teamsters, as rep-

resentative for all of TIA’s present flight engineers, their

officers, agents, representatives, members, servants, em-

ployees, and any and all persons acting in concert with

them, are hereby enjoined from authorizing, inducing,

causing participation in, or otherwise aiding and abetting

in any concerted refusal to work, sympathy strike, or

honoring of picket lines with respect to military flights

under the military no-strike clauses of the applicable

collective-bargaining agreements. Plaintiff TIA’s motion

for preliminary injunction with respect to its flight en-

gineers is hereby denied in all other respects.

Furthermore, it is hereby ORDERED that defendant

Airline Pilots Association, as representative for all of

20a

TIA’s present pilots, their officers, agents, representatives,

members, servants, employees, and any and all persons

acting in concert with them, are hereby restrained from

authorizing, inducing, causing participation in, or other-

wise aiding and abetting in any concerted refusal to

work, sympathy strike, or honoring of picket lines with

respect to military flights under the military no-strike

clauses of the applicable collective-bargaining agreements.

Plaintiff TIA’s motion for a temporary restraining order

with respect to its pilots is hereby denied in all other

respects. This temporary restraining order to remain in

effect until a determination is made with respect to TIA’s

motion for a preliminary injunction, but in any case

for no more than 10 days.

Dated: September 28, 1977

/s/ Robert F. Peckham

United States District Judge

2la

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C-77-2011 RFP

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff,

Vv.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,

AIRLINE DIVISION, TEAMSTERS LOCAL 2707, AIRLINE,

AEROSPACE AND ALLIED EMPLOYEES,

Defendants,

and

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL

(AFL-CIO),

Defendant.

JUDGMENT

This action came on for hearing before the court, the

Honorable Robert F. Peckham, District J udge, presiding,

and the issues having been duly heard and a decision

having been duly rendered upon plaintiff’s motion for

preliminary injunction,

IT IS ORDERED AND ADJUDGED that the defend-

ant, International Brotherhood of Teamsters, as repre-

sentative for all of TIA’s present flight engineers, its

officers, agents, representatives, members, servants, em-

ployees, and any and all persons acting in concert with

them, are hereby enjoined from authorizing, inducing,

causing participation in, or otherwise aiding and abetting

in any concerted refusal to work, sympathy strike, or

honoring of picket lines with respect to military flights

under the military no-strike clauses of the applicable

collective-bargaining agreements.

22a

That the plaintiff Trans International Airlines, Inc.’s

motion for preliminary injunction is hereby denied in all

other respects.

Dated: October 12, 1977

/s/ Robert F. Peckham

United States District Judge

ENTERED IN CIVIL DOCKET 10/14, 1977.

23a

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. C-77-2010 RFP

No. C-77-2011 RFP

TRANS INTERNATIONAL AIRLINES, INC.,

Petitioner,

Vs.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, etc., AIR-

LINE DIVISION; TEAMSTERS LOCAL 2707; MARVIN G.

GRISWOLD; TEAMSTER LOCAL 732; HENRY BREEN; and

DANIEL PORTER;

Respondents.

ADJUDICATION OF CONTEMPT

This Court having read and considered the first

amended petition for adjudication in civil contempt, the

affidavit in support thereof, and beirig fully advised in

the premises, after hearing, this Court specifically finds

as follows:

1. That respondents International Brotherhood of

Teamsters, etc., Airline Division; Teamster Local 2707;

Marvin G. Griswold; Teamster Local 732; Henry Breen;

and Daniel Porter have, beginning Sunday, October 30,

1977 and continuing to the date of this order, authorized,

induced, caused participation in, and otherwise aided

and abetted a concerted refusal to work and/or work

stoppage directed to flights of plaintiff operated for the

Department of Defense, so-called “military flights,” by,

inter alia, specifically instructing Teamster flight at-

tendants and flight engineers to refuse to fly all such

military flights, causing Teamster flight attendants to

24a

be unavailable to fly military flights by claiming sickness,

causing Teamster members to block access, engage in

mass picketing, and engage in acts of violence and

harassment against plaintiff’s employees seeking to report

for work and applicants for employment with petitioner

at petitioner’s facilities, and generally encouraging fail-

ure of compliance by Teamster flight attendants and

flight engineers with the preliminary injunction orders

of this Court issued September 26 and September 28,

1977.

2. That the actions described in Paragraph 1 are in

violation of this Court’s preliminary injunctions issued

September 26, 1977 in Case No. C-77-2010 RFP and

September 28, 1977 in Case No. C-77-2011 RFP, which

orders are presently binding upon the above-named re-

spondents and in full force and effect.

3. That the actions described in Paragraph 1 will

continue unless restrained.

4. That denial of this order would result in irrepar-

able injury to the petitioner in that the actions described

in Paragraph 1 will cause immediate substantial and

irreparable injury, loss, and damage to the petitioner and

to the public in general.

WHEREFORE, in view of the above findings, IT IS

HEREBY ADJUDGED, ORDERED AND DECREED:

1, That respondents named in Paragraph 1 above are,

individually and severally, in civil contempt of this

Court’s preliminary injunction orders of September 26

and September 28, 1977.

2. That said respondents, and each of them, shall

forthwith purge themselves of said civil contempt in the

following manner:

(a) By immediately complying with the Court’s pre-

liminary injunction orders dated September 26 and Sep-

tember 28, 1977;

25a

(b) By preparing a notice describing said orders and

acknowledging that respondents have been adjudicated

in civil contempt and are in the process of complying

with said orders, and urging all persons concerned to

comply with said orders, such notice to be signed by an

authorized representative of respondents and posted in

conspicuous places on petitioner’s bulletin boards at every

base, until further order of this Court, without altera-

tion, defacing, or otherwise rendering said notices il-

legible or difficult to read;

sage embodying the information set forth in subpara-

graph (b) above, such Code-a-Phone message to be sub-

stituted for the Code-a-Phone message or messages pres-

ently being transmitted to Teamster members and to

continue to be transmitted until further order of this

Court;

(d) By immediately sending by certified mail a signed

copy of the above-described notice to every flight attend-

ant and flight engineer member of the Teamsters Union

employed by petitioner;

(e) By using every other reasonable means to contact

and notify flight attendant and flight engineer employees

of petitioner of the necessity for complying with this

Court’s preliminary injunction orders.

3. To insure compliance with this order, and with the

provisions of the contempt adjudication, IT IS FUR-

THER ORDERED that respondents, and each of them,

are hereby assessed a prospective compliance fine in the

amount of fifty thousand dollars ($50,000) and an ad-

ditional fine for each day the contempt of this Court’s

Preliminary Injunction Orders shall continue, which ad-

ditional fine shall be seventy five thousand dollars

($75,000) for the second day thereof, and shall increase

by an additional twenty five thousand dollars ($25,000)

26a

on the third and each successive day thereafter; pro-

vided, that if the respondents purge themselves of con-

tempt as herein above and below set forth and make a

good faith showing as described in paragraph 4 that

they have made and are making all reasonable endeavors

to accomplish such purging, then the imposition of all

such fines shall be suspended pending the further deter-

mination by this Court as to whether the purging shall

have been accomplished.

4. By not later than 4:00 pm November 2, 1977 re-

spondents shall submit to this Court a written and

sworn statement setting forth the steps they have taken

to comply with this Court’s Preliminary Injunction Or-

ders; a further report of the same type shall be sub-

mitted to this Court five days following the initial re-

port, setting forth every additional action taken by

respondents to comply with and to ensure compliance

with this Court’s Preliminary Injunction Orders.

5. The matters of award of compensation to the plain-

tiff, of attorneys fees and costs, if any, and of any fur-

ther hearings on past violations of this Court’s Injunctive

Orders are reserved for future determination by the

regularly assigned District Judge, the Honorable Robert

F. Peckham. Hearing on the calendar of Judge Peckham

is hereby fixed for Wednesday, November 9, 1977 at

9:30 am.

DATED: November 1, 1977 at ——- pm.

/s/ Cecil F. Poole

United States District Judge

27a

APPENDIX D

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

C-77-2010 RFP

C-77-2011 RFP

TRANS INTERNATIONAL AIRLINES, INC.,

Petitioner,

vs.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, etc., AIR-

LINE DIVISION; TEAMSTERS LOCAL 2707; MARVIN G.

GRISWOLD; TEAMSTER LOCAL 732; HENRY BREEN; and

DANIEL PORTER;

Respondents.

FINDINGS AND CONCLUSIONS

RE: PURGING OF CIVIL CONTEMPT

This matter having come before the Court on November

4, 1977 at 11:00 a.m. for further hearing to determine

whether defendants had taken appropriate actions to

purge themselves of contempt; and the Court having

heard and duly considered the evidence and arguments

of the parties, the Court hereby finds and concludes as

follows:

1. Plaintiff alleges, inter alia, that Defendants failed

to purge themselves of contempt by continuing to en-

gage in mass picketing after the Adjudicationof Con-

tempt. The parties are in dispute as to the intent and

meaning of the Adjudication of Contempt insofar as it

relates to mass picketing. Plaintiff contends that mass

picketing as used therein refers to any picketing by an

excessive number of persons. Defendants contend that

mass picketing as used therein refers only to picketing

28a

which has the effect of physically obstructing ingress

and/or egress at Plaintiff’s facilities and thereby inter-

fering with the flying of military flights. The Court

believes that this dispute as to the intent and meaning

of the Adjudication of Contempt can best be resolved by

Judge Poole who issued the Adjudication of Contempt.

Accordingly, to the extent that Plaintiff continues to al-

lege that Defendants failed to purge themselves of con-

tempt by continuing to engage in mass picketing Plain-

tiff is directed to refer said matter to Judge Poole.

2. In all other respects Defendants have established,

and Plaintiff admits, that Defendants have purged them-

selves of contempt by taking all actions required by the

Adjudication of Contempt.

Dated: November 8, 1977

/s/ Charles B. Renfrew

United States District Judge

29a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 77-3362

77-3363

77-8395

77-3781

TRANS INTERNATIONAL AIRLINES, INC.,

Appellant, Cross-Appellee,

Vv.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN and HELPERS OF AMERICA,

AIRLINE DIVISION, TEAMSTERS LOCAL 2707, AIRLINE,

AEROSPACE and ALLIED EMPLOYEES; MARVIN G. GRIS-

WOLD; TEAMSTERS LOCAL 732,

Appellees, Cross-Appellants.

Nos. 78-1148

78-1232

TRANS INTERNATIONAL AIRLINES, INC.,

Appellee, Cross-Appellant,

Vv.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN and HELPERS OF AMERICA,

AIRLINE DIVISION, TEAMSTERS LOCAL 2707, and AIR-

LINE PILOTS ASSOCIATION INTERNATIONAL, AFL-CIO,

Appellants, Cross-Appellees.

Appeal from the United States District Court

for the Northern District of California

30a

ORDER

Before: GOODWIN, WALLACE, and KENNEDY,

Circuit Judges.

It is ordered that the appeal herein be dismissed as

moot, unless one or more parties, by affidavit, show cause

on or before July 26, 1979, and identify with particu-

larity the issues, if any, of law or fact which constitute

a case or controversy within the meaning of Article III

of the United States Constitution and Illinois State Board

of Elections v. Socialist Workers Party, 47 U.S.L.W.

4197, 4201 (U.S., Feb. 22, 1979).

(Filed July 5, 1979)

3la

APPENDIX F

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

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

78-1148 and 78-1232

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff-Cross-A ppellant,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, etc., AIR-

LINE DIVISION, TEAMSTER LOCAL 2707; MARVIN G.

GRISWOLD; TEAMSTER LOCAL 732,

Defendants-Cross-A ppellees.

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff-Appellee/Cross Appellant,

2 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., AIR-

LINE DIVISION, TEAMSTERS LOCAL 2707, and AIR LINE

PILOTS ASSOCIATION, INTERNATIONAL, AFL-CIO,

Defendants-A ppellants/Cross Appellees.

Decided February 14, 1980, as amended by Orders of

March 14 and June 2, 1980

Appeal from the United States District Court

for the Northern District of California

Before GOODWIN, WALLACE, and KENNEDY, Cir-

cuit Judges.

KENNEDY, Circuit Judge:

This case requires a determination, among other mat-

ters, 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 seg. The RLA extends to

airlines, 45 U.S.C. §§ 181-188, and Trans International

Airlines (TIA), a principal party in this case, is one

of the nation’s largest supplemental air carriers. On

November 30, 1976, TIA merged with Saturn Airways.

The company operates separate flights for military and

civilian carriage, transporting 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 attend-

ants and the engineers are represented by the In-

ternational 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 company obtained fed-

eral injunctive relief prohibiting both strikes to the ex-

tent 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 subsequent strikes, have the follow-

ing history. TIA and the flight attendants were parties

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. §§ 1831 & 1337, since the enforceability 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.

2The Teamsters and ALPA stand in the same position with

regard to the sympathy strike issues addressed below. Where

appropriate, we use “Teamsters” or “the union” to refer to ALPA

as well as the Teamsters.

33a

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 dispute over the

legality of the primary strike lie further contract pro-

visions, by which the parties agreed there would be no

strikes 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 . . ..”* In February of 1976 the

Teamsters, acting for the flight attendants, served a

notice of intent to amend the agreement. Under the

Railway Labor Act this is a section 6 notice, which

8’ 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 stirke,

picketing, slowdown or stoppage of work.

Section B. During the term of this Agreement, the Com-

pany shall not cause, permit, or engage in any lockout of its

Flight Attendants.

Section C. During the term of this Agreement, the Com-

pany reserves the right to discharge or otherwise discipline any

Flight Attendant taking part in any strike, picketing, slow-

down or stoppage of work.

Section D. The Union further agrees that the Flight At-

tendants will continue to perform all duties which are neces-

sary to enable the Company to operate flights for or in sup-

port of traffic sponsored by the Department of Defense of the

United States of America, even though such Flight Attendants

withdraw from commercial airline service because of a dispute

arising out of negotiations for a new contract after the expi-

ration 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 re-

quested, proof that a particular flight is being flown or operated

under charter or contract to the Department of Defense.

tae

34a

signals the union’s intent to negotiate a new employ-

ment agreement. 45 U.S.C. § 156. The contract expira-

tion 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 set in motion

by the section 6 notice. See id. Further negotiations

between the parties produced no agreement, and a media-

tor 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 midnight, September 7,

1977, the flight attendants struck all flights. TIA’s flight

engineers and pilots, in a sympathy strike, honored the

flight attendants’ primary strike and refused to cross the

picket line.

TIA applied to the district court for an order prohibit-

ing these groups of employees from striking. The dis-

trict court ultimately granted a preliminary injunction

prohibiting the flight attendants from striking TIA’s

military flights, but denied an injunction prohibiting

flight attendants from striking TIA’s other operations.

A similar injunction was issued against the flight en-

gineers 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 in-

junctive relief pending decision of the appeal. Oral ar-

gument on these motions was heard by this panel. In

addition to the motions for preliminary relief, the prin-

cipal appeal from the district court’s preliminary injunc-

tions 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 parties’

motions for interim relief. Concluding, however, that

35a

further oral argument in these cases is unnecessary,

these appeals, Nos. 77-3362, 77-3368, 77-3395, 77-3781,

78-1148 & 78-1232 are considered submitted to this panel

on the date of filing of this opinion, and their disposition

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 injunction 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; ex-

panded the number of military flights (which the dis-

trict court had enjoined the flight attendants, engineers

and pilots from striking) ; terminated pilots for refusal

to fly commercial planes 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 Teamsters’ conduct dur-

ing the course of the major disputes mediation proce-

dures violated section 152 First of the RLA, which re-

quires 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

Teamsters to return to the bargaining table. See Chicago

& N. W. Ry. v. United Transportation Union, 402 U.S.

570, 91 8.Ct. 1731, 29 L.Ed.2d 187 (1971). The principal

bases of TIA’s claim are (1) that the Teamsters, 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 bargaining table

by requesting approximately 200 contract changes after

a year of negotiations and six months prior to the strike,

86a

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 attendants, and its proposals

after mediation 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 at-

tendant payroll costs.

Finally, even if enjoining the Teamsters’ 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 employees had promised not to strike TIA’s

military operations, even after bargaining under the

RLA’s disputes resolution procedures had been exhausted,

and that an injunction against the sympathy strikes was

proper pending minor dispute arbitration of the legality

of the strikes.

The strikes which were the subject of this lawsuit

have been settled, and a new collective bargaining agree-

ment 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 deciding

a substantial pending claim for damages sought by TIA

against the Teamsters. The district court’s preliminary

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 employees to

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.

87a

strike military flights. On November 1, 1977, the Team-

sters were adjudicated in contempt of the district court’s

orders. TIA alleges its military operations were vir-

tually shut down by striking flight attendants and flight

engineers, causing TIA approximately $400,000 in com-

pensatory damages which it still seeks to recover from

the Teamsters. The matter of compensatory fines was

stayed by the district court on January 24, 1978, “pend-

ing the results of the appeals before the Court of Ap-

peals for the Ninth Circuit in TIA v. Teamsters, Nos.

717-3362/3363/3395/3781.”

Thus, the right of TIA to recover its alleged dam-

ages and the extent of recovery will be controlled, in

part, by resolution of the overriding issue in these ap-

peals: whether TIA was entitled to injunctive relief

against either the primary or the sympathy strike. See,

e.g., Lewis v. S. S. Baune, 584 F.2d 1115, 1119 (5th

Cir. 1976) (“A judgment of civil contempt, being re-

medial 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.

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 appeals. The Teamsters’ argument is

essentially 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 pro-

38a

ceedings below, and if we determine the case is moot we

should also instruct the district court to dismiss the

contempt proceedings. We disagree with that reasoning.

The Teamsters contend we are governed by Gompers

v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492,

55 L.Ed. 797 (1911). Procedurally Gompers does re-

semble this case. The company had secured an injunction

against a boycott. Appeals were taken from this injunc-

tion. Before the appeal was decided, the company in-

itiated 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 affirmed. By the time the appeals from the

‘original injunction reached the Supreme Court, the parties

had settled their differences. The Court accordingly dis-

missed 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

dismissed the appeal of the contempt adjudication as

moot. It held:

[Wlhen the main cause was terminated by a settle-

ment of all differences between the parties, the com-

plainant did not require and was not entitled to any

P compensation or relief [in the contempt proceedings].

221 U.S. at 451-52, 31 S.Ct. at 503. Gompers has subse-

quently been refined, see, e.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.2d 99 (1971), but we

think the Teamsters’ discussion 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

litigation between them, 221 U.S. at 451, 31 S.Ct. at

39a

502; 219 U.S. 581, 31 S.Ct. 472 (1911). The determina-

tions of mootness were predicated on this finding. In our

case, by contrast, there has been no out-of-court settle-

ment by the parties of “every material controversy which

the record present[s].” 219 U.S. at 581, 31 S.Ct. at 472.

The strike has ended and the parties have signed a new

collective bargaining agreement, but this does not con-

stitute 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 (8d Cir. 1978), the employer had

sued for both injunctive 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 agree-

ment have not mooted a 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 13845-

46. A proceeding for civil contempt is part of the original

action. See, e.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 injunc-

tive orders of the district court, we may consider the

fact that the Union has been adjudicated in civil con-

tempt of those orders, and that imposition of substantial

compensatory damages depends on resolution of the issues

presented on this appeal. Cf. also American Bible Society

40a

v. Blount, 446 F.2d 588 (8d Cir. 1971); Meyers v. Jay

Street Connecting Railroad, 288 F.2d 356 (2d Cir. 1961) .°

5 Moreover, even were there no possibility of damages recovery

in the further district court proceedings, this appeal probably would

not be moot under the “capable of repetition, yet evading review”

standard as elaborated in recent cases as Weinstein v. Bradford,

423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), Super Tire

Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40

L.Ed.2d 1 (1974), and Illinois State Board of Elections v. Socialist

Workers Party, 440 U.S. 173, 99 S.Ct. 9838, 59 L.Ed.2d 230 (1979),

Amalgamated Transit Union v. Greyhound Lines, Inc., 550 F.2d

1237, 1238 n.1 (9th Cir.), cert. denied, 434 U.S. 837, 98 S.Ct. 127,

54 L.Ed.2d 99 (1977), and Bituminous Coal Operators’ Associa-

tion, Inc. v. U. M. W., 585 F.2d 586, 599-600 (3d Cir. 1978). Under

these cases, a challenged action is not moot when:

(1) the challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration, and (2) there

(is) a reasonable expectation that the same complaining party

would be subjected to the same action again.

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]he

great majority of economic strikes do not last long enough for

complete judicial review of the controversies they engender.” Super

Tire Engineering v. McCorkle, 416 U.S. 115, 126, 94 S.Ct. 1694,

1700, 40 L.Ed.2d 1 (1974).

There is also a reasonable expectation the same complaining

parties 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. Similarly, Saturn Airways, which

merged into TIA, was the object of strikes by its pilots, repre-

sented by ALPA, in May of 1972. Saturn’s flight engineers, attend-

ants, 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 the district court to be commcn methods

used by employers, and presumably reasonably likely to be used by

TIA in the event of another strike. The Teamsters and ALPA con-

tinue to represent some of the groups of employees involved in this

lawsuit. Thus the same parties whose conduct is at issue in this

Ala

The Teamsters raise another, more limited, mootness

argument. They contend TIA’s appeal from the district

court’s refusal to enjoin a strike against its commercial

operations is moot. Noting that TIA’s flight attendants

(but not its engineers) now have a different bargaining

representative (the Association of Flight Attendants),

the Teamsters argue 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 commercial and military flights

could be enjoined. 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 re-

luctance to fragment this appeal into “live” and “moot”

issues, and the 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. 178,

187, 99 S.Ct. 983, 992, 59 L.Ed.2d 230 (1979) ; Amalga-

mated Transit Union v. Greyhound Lines, Inc., 550 F.2d

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 bar-

gaining and subsequent strike giving rise to the instant dispute

have been settled, the record 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-

600; Japan Air Lines Co. v. International Association of Machinists,

538 F.2d 46, 50-51 (2d Cir. 1976).

42a,

1237, 1238 n.1 (9th Cir.), cert. denied, 484 U.S. 837,

98 S.Ct. 127, 54 L.Ed.2d 99 (1977), the Union’s bar-

gaining 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 address first the clean hands

issue. We affirm the district court’s finding, on the mo-

tion for preliminary relief, that TIA was not prevented

from seeking injunctive relief because of its own conduct.

Without explicitly passing on the accuracy of the Team-

ster’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 common methods of countering the im-

pact of a strike . . . 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 unfair for

both sides to resort to all of the weapons legally

available to them.

The activities of which the union complains are not dis-

cussed in detail in the district court’s opinion of October

26, 1977,° but the parties have presented their views of

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 September 26 and September

28, 1977. Plaintiff TIA now moves for a preliminary injunction

against 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 re-

garding TIA’s varied and extensive efforts to continue its oper-

ations during the current strike in an attempt to defeat the

strike. Nevertheless, the court does not feel that TIA’s actions,

which are all legally permissible and fairly common methods

43a

TIA’s conduct in their briefs. Having reviewed their

contentions, we cannot conclude that the district court

applied a legally improper standard or made clearly er-

roneous findings of fact. On the motion for preliminary

relief it was not improper to conclude that the practices

complained of were not sufficiently likely to be found

illegal or otherwise wrongful that TIA should be pre-

of countering the impact of a strike, are so inequitable as to

require the denial of injunctive relief. These parties are en-

gaged 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 unfair 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 proceed-

ings. The testimony of Mr. Arthur Perkel of the Military

Airlift Command (MAC) makes it clear that, without spe-

cifically intending to do so, the administration of MAC expan-

sion business will almost inevitably tend to strengthen the

economic position of a struck airline, such as TIA, as against

its striking employees. The number of airplanes freed by a

strike against the airline’s commercial flights allows the air-

line to seek and obtain 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 situ-

ation 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 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.

44a

vented from seeking injunctive relief. See Illinois Cen-

tral 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.

923, 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).

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 described. 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 in-

dicates that what the Teamsters were trying to do

with the introduction of their March, 1977, pro-

posal 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.

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

45a

wages, benefits, and working conditions did not demon-

strate 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

under the RLA, nor can TIA Suggest one, which has

inferred lack of reasonable effort solely from the size of

the proposals put forth by the parties.” The court noted

that the union had reduced its proposals on two occasions,

and characterized the bargaining as “obstinate and un-

yielding” but not in violation of the statutory standards.

We do not hold that a union’s insistence on proposals

of the kind involved here could never be the basis for a

finding that a union did not comply with its obliga-

tions under section 152 First; but in this case the dis-

trict court’s finding 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.

Brotherhood 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 appro-

priate because of language contained in the collective

bargaining agreement. The Teamsters 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, maintaining 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-La-

Guardia 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 rail-

road industry has developed on a pattern different from

46a

other industries. The fundamental premises and prin-

ciples of the Railway Labor Act are not the same as

those which form the bases of the [NLRA] .. ..” Brother-

hoo” of Railroad Trainmen Vv. Chicago River & I. R. R.,

353 U.S. 30, 31-82 n.2, 77 S.Ct. 635, 1 L.Ed.2d 622

(1957). On the other hand, in cases which present dif-

ficult questions under the RLA but do not require statu-

tory 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 con-

struing the RLA. Brotherhood of Railroad Trainmen v.

Jacksonville Terminal Co., 394 U.S. 369, 383-84, 89 S.Ct.

1109, 22 L.Ed.2d 344 (1969).

The principal question with respect to the primary

strike is whether the contract provision by which the

union agreed not to strike military flights, even after

RLA dispute mechanisms had been exhausted, is enforce-

able by injunctive relief. Decision of this question re-

quires an analysis 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 agree-

ment 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 disputes provisions

contemplate[] the existence of a collective 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 application

of a particular provision with reference to a specific

situation or to an omitted case.

47a

Elgin, supra, 825 U.S. at 723, 65 S.Ct. at 1290. The

major disputes provisions relate to disputes over the

formation of collective agreements or efforts to secure

them. The Act’s procedures for major disputes have been

described as follows:

A party desiring to effect a change of rates of pay,

rules, or working conditions must give advance writ-

ten notice. §6. The parties must confer, § 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 serv-

ices 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 contro-

versy to binding arbitration, which can take place

however, only if both consent. §5 First, 7. If ar-

bitration is rejected and the dispute threatens “sub-

stantially to interrupt interstate commerce to a de-

gree 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 unilaterally

alter the status quo. § 2 Seventh, 5 First, 6, 10.

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 opened to

negotiation, the provision is not kept in effect by opera-

tion of the RLA once the procedures for major dispute

resolution are exhausted. To encourage voluntary settle-

ment 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.

48a

For [the] settlement [of major disputes] the statu-

tory scheme retains throughout the traditional vol-

untary processes of negotiation, mediation, voluntary

arbitration, and conciliation. Every facility for

bringing about agreement is provided and pressures

for mobilizing public opinion are applied. The parties

are required to submit to the successive procedures

designed to induce agreement. §5 First (b). But

compulsions go only to insure that those procedures

are exhausted before resort can be had to self-help.

Elgin, supra, 825 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 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 pe-

riod mandated by the RLA, when the Teamsters

would otherwise have the right to strike against all

of TIA’s operations. The Teamsters do not dispute

the meaning of this provision... . This military

no-strike clause could not be clearer in expressing

its intent that the flight attendants thereby give up

their right to strike TIA’s military flights even

during those periods when they might strike all of

TIA’s other operations.

A contrary interpretation would render material por-

tions of the clause meaningless. TIA would not secure

49a

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 arbitration

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 Teamsters’ strike in violation

of their contract obligation did not present a major dis-

pute. 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 subject 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 involving a major dispute.

We find no authority by which the contract clause in

question can be held to violate RLA policies. Once major

dispute procedures are completed and the different pres-

sures put on the parties to achieve voluntary settlements

have been exhausted, it is true that ordinarily the em-

ployer and the union are free to resort to the traditional

economic weapons. Brotherhood of Locomotive Engineers

Vv. 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

‘For instance, nothing in our holding today prevents parties

from agreeing to binding arbitration after the major dispute

mechanisms of the Act are exhausted.

50a

9 infra, a question we do not reach here, we perceive

no policies peculiar to the RLA which prohibit the parties

from regulating by contract their post-major disputes

relations in. the manner they have here. It is true that

ordinarily a union’s promise not to strike is accom-

panied by a promise that the employer agrees to submit

the dispute to binding arbitration. The parties have not

directed our attention, however, to cases requiring an

arbitration clause as to condition to holding the no-strike

promise binding.

A determination that the military 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 relief. The anti-injunction com-

mand of the Norris-LaGuardia Act may operate inde-

pendently to bar an injunction notwithstanding the va-

lidity 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.

If this case arose under the NLRA, an injunction would

not be granted. See Buffalo Forge Co. v. United Steel-

workers, 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. 15838, 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 breaches 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 Re-

fining Co. v. Atkinson, 370 U.S. 195, 225, 82 S.Ct. 1328,

5la

1344, 8 L.Ed.2d 440 (1962) (dissent). If we were per-

suaded that a substantial purpose unique to the RLA,

or protection of its dispute settlement 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 injunction appear appropriate in this case,

although for reasons stated below we do not find them

dispositive. Enforcement of a no-strike clause may have

a salutary effect 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 in-

junction, which reduces the risks inherent in renego-

tiating the contract. Frequent negotiation, under this

view, furthers industrial stability by permitting more

precise adjustments to meet changing economic conditions.

Further, the breach of contract in this case is plain

and unambiguous. One might argue that unambiguous con-

tract breaches could be enjoined without doing violence to

any Norris-LaGuardia Act policy. See Note, The Ap-

plicability of Boys Markets to Refusals to Cross a Picket

Line, 76 Colum.L.Rev. 118, 186-41 (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 pro-

tect labor organizing and ability to bargain collectively,

not to prohibit enforcement of collective bargaining agree-

ments) ; F. Frankfurter & N. Greene, The Labor Injunc-

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

Markets Labor Injunctions, and Sympathy Work Stop-

pages, 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 TIA flights. In addition, apparently the federal

government insisted that the company insert the clause

52a

as a condition of obtaining military contracts. The no-

strike clause therefore furthered specific government

transportation interests.*®

Finally, the RLA contains a statutory provision re-

quiring the parties to a contract to maintain their agree-

ment without breach. 45 U.S.C. § 152 First provides:

It shall be the duty of all carriers, their officers,

agents, and employees to exert every reasonable ef-

fort to make and maintain agreements concerning

rates of pay, rules, and working conditions, and to

settle all disputes . . . in order to avoid any inter-

ruption to commerce or to the operation of any

carrier growing out of any dispute between the car-

rier 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 sub-

stantive 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 (2d Cir. 1970), reaff’d

in further consideration, 443 F.2d 487 (2d Cir. 1971),

and Southern Pacific Transportation Co. v. Railway &

Steamship Clerks, 81 L.C. para. 18,1138 (N.D. Cal.

1975). The Second Circuit in Seaboard permitted an

injunction to prohibit a strike in violation of the union’s

8 The Government’s transportation interests are protected to some

extent by 45 U.S.C. § 160. The Mediation Board may notify the

President of disputes which threaten serious disruption, and the

President may then create a board to investigate and report re-

specting 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.

58a

contractual promise not to reopen certain subjects for

RLA major disputes bargaining before a given date.°

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 factors if

present in a case arising under the NLRA would be in-

sufficient to permit an injunction to issue.

The result contended for by TIA and Judge Wallace

in his thoughtful opinion would mean that a federal

court has radically different powers to enjoin a strike

which clearly violates language in the collective bargain-

ing agreement, depending on whether the controlling

statute is the NLRA or the RLA. Admitting the dif-

ferent genesis of the RLA, see Chicago River, supra at

31-32 n.2, we do not think the statutory policies are

sufficiently distinct to justify such different application

of the Norris-LaGuardia Act’s anti-injunction mandate.

Absent a substantial nexus with statutory dispute settle-

ment mechanisms or an agreement to arbitrate, an in-

junction may not issue to prevent a plain breach of a

no-strike clause by a union. The language of section 152

is perhaps unique to the RLA. The history of the RLA,

®In Seaboard the parties, by supplemental agreement, had re-

solved an issue of job security for flight navigators displaced 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 reopening at an earlier date. At that date, the union served

a section 6 notice which included a request to negotiate the flight

navigator question, the very issue put out of reach by the supple-

mental agreement. When the airline refused to negotiate the issue,

the union struck, arguing that the carrier was avoiding its obliga-

tions to bargain under the major disputes provision 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 reopening 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.

54a

nevertheless, prevents us from finding in the Act’s obli-

gation to “maintain agreements” a broad mandate to

enjoin all, or even plain, breaches of collective bargain-

ing agreements by a union. Without question, the RLA

was a response to the perceived dangers of disruption

in the transportation industry. This history has been de-

scribed 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 implement-

ing a comprehensive system of binding arbitration and

mandatory nonbinding mediation involving drawn-out

procedures designed to encourage parties to reach agree-

ment. The policy of the statute is not that any act which

disrupts the transportation industry may be enjoined.

Instead, after major dispute procedures are completely

exhausted, with reasonable efforts having been made to

reach an agreement, see Chicago & N.W. Ry., supra, the

policies peculiar to the RLA are also exhausted, and the

parties are governed by 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, perhaps, for fear that personal

bias sometimes difficult to detect even in ourselves will

weigh too heavily in the enforcement process. See, ¢.g.,

Chicago River, supra, 353 U.S. at 40-41, 77 S.Ct. at 640-

641; F. Frankfurter & N. Greene, 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."° The RLA plan

10 For example, if we were to enforce the military no-strike clause

by an injunction, it might be appropriate to limit its duration to a

reasonable time, rather than indefinitely. To define a reasonable

time for enforcement probably would require a decision as to when

hardship on the union becomes so great that the injunction should

55a

for avoiding disruption is not threatened 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 en-

joined. See generally Brotherhood of Railroad Trainmen

v. Jacksonville Terminal Co., supra, 394 U.S. at 374-93,

89 S.Ct. at 1113-24 (“[P]arties who have unsuccessfully

exhausted the Railway Labor Act’s procedures for reso-

lution 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 im-

posed by federal law.” Id. at 392, 89°S.Ct. at 1123).

Seaboard does not require a different result. There

the court held that a section 6 notice does not open all

possible 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 involved

the effect of contractual efforts to limit the scope of a

section 6 proceeding, instead of efforts to specify per-

missible post-mediation measures. Also, unlike the case

before us, the injunction in Seaboard enabled the parties

to complete required bargaining on all other issues sub-

ject to a section 6 notice, and thus pursue dispute settle-

ment procedures not yet exhausted.

Chicago & N.W. Ry. similarly does not support en-

joining a primary strike for the purpose of enforcing a

be lifted so the union can begin punishing the employer for refusal

to accede. Whatever might be our powers to make such judgments

in damage actions for breach of contract, the Norris-LaGuardia

Act was designed to preclude courts from issuing injunctions on

this kind of determination.

56a

clause in the collective bargaining agreement. The ra-

tionale for the injunction in that case was that the

union had failed to use reasonable efforts to comply with

the mandatory disputes settlement mechanisms that lie

at the heart of the act. The integrity of these mecha-

nisms was thus provected by the injunction in Chicago

& N.W. Ry.; enjoining the Teamsters’ primary strike in

this case would not similarly further the RLA’s arbitra-

tion 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 of the contract was ambiguous as

to whether the strike was permitted, the strike could

be enjoined pending the outcome of minor dispute ar-

bitration, 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.

2d 673 (1967) (RLA); Steelworkers v. Enterprise Corp.,

363 U.S. 593, 80 S.Ct. 1858, 4 L.Ed.2d 1424 (1960)

(NLRA), but that where the breach is so clear that ar-

bitration 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 controlling interpretations of the Norris-

LaGuardia Act.

The second principal issue on this appeal is the au-

thority of the district court to enjoin any aspect of the

sympathy strike. The district court held that it could

enjoin only the sympathy strike directed against military

flights. Trans International Airlines, Inc. v. International

57a

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 en-

gineers, and the former Saturn pilots, bear on the issues

addressed below, and we set forth relevant portions of

the contracts in the margin. The controlling collective

1 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 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 lan-

guage between the former Saturn flight engineers and the pre-

merger TIA flight engineers and pilots would bear on the propriety

of granting preliminary relief. In relevant part, the contracts

provide:

PRE-MERGER TIA FLIGHT ENGINEERS AND PILOTS

(Agreement of July 21, 1974)

“SECTION 21

A. [General No Strike Clause] During the term of this

Agreement, the Union shall not authorize, cause, sanction or

engage in any strike, picketing, slowdown or stoppage of work.

D. [Military No Strike Clause] The Union further agrees that

the Crewmembers 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 Crewmem-

bers withdraw from commercial airline service because of a

dispute arising out of negotiations for a new contract after

the expiration date of this Agreement and/or during and after

all procedures of the Railway Labor Act have been exhausted,

E. [Picket Line Clause] It shall not be a violation of this

Agreement, and it shall not be a cause for discharge or dis-

ciplinary action in the event a Crewmember refuses to go

through or work behind a legal primary picket line main-

tained by the Union in connection with a dispute between the

58a

bargaining agreements between the carrier and the flight

engineers and pilots, both with premerger TIA employees

Company and the Union involving any flight personnel repre-

sented 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 employees covered by this Agreement and the Union and

its members, individually and collectively, agree that they will

not authorize or take part in any strike or picketing at the

Company’s premises during the life of this Agreement, until

the procedures for settling disputes involving employees cov-

ered by this Agreement, as provided for by the Railway Labor

Act, have been exhausted x both spss

P. [Military No Strike sae Conduct of Military Opera-

tions—It is mutually agreed that during the term of the Agree-

ment between the Company and its Flight Engineers as repre-

sented by the Union, that the Flight Engineers will not engage

in any strike or work stoppage on purely military operations

conducted by the Company.”

FORMER SATURN PILOTS

(Agreement of May 23, 1972)

This contract contains no general no-strike agreement as

such, although it does, in Section 26 C 12, reserve to each party

all the rights and privileges accorded under the 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 agree-

ment, 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 commodities or

military personnel.”

59a

and former Saturn employees, contained a no-strike clause

and a military no-strike clause, and the question whether

the sympathy strike was in violation of the contracts

presents a minor dispute under the Act. Both TIA

and the Teamsters agree that the dispute must be re-

solved 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 com-

pletely 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 engineers

and pilevs are required to resort to the minor dispute

mechauisms of the Act to have their rights clarified be-

fore engaging in the sympathy strike.

The court in Chicago River, supra, permitted injunc-

tions to be issued, the Norris-LaGuardia Act notwith-

standing, when the strike threatened the jurisdiction 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. 1828, 8 L.Ed.2d 440

(1962)). Buffalo Forge Co. vy. 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

eases the Norris-LaGuardia Act deprived federal courts

of jurisdiction to enjoin a sympathy sirike, even where

the strike is clearly forbidden 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 grievance.”

60a

Chicago River, arising under the RLA, and Boys

Markets, arising under the NLRA, reached parallel re-

sults; indeed the later case made specific reference to

the principles elaborated in Chicago River, The close

relation of those cases does not mean, however, that the

injunctive power of the federal courts is coextensive un-

der the two statutes. See Sinclair Refining, supra, 370

U.S. at 210-11, 82 S.Ct. at 1836-37. We conclude that

not all of the reasoning of Buffalo Forge applies in RLA

cases and that policies unique to RLA support jurisdic-

tion to enjoin the sympathy strike in this case.

A principal goal of the Court in Buffalo Forge was to

avoid judicial intrusion on an arbitration form estab-

lished by contract. The Court pointed to the dangers of

judicial declarations that might control an arbitrator’s

determination of the case, a responsibility assigned ex-

clusively 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. Perhaps the Court was

also worried that a contrary result would lead to fewer

abitration clauses in collective bargaining agreements, the

unions being less willing to agree to arbitrate disputes or

to proceed to arbitration following a preliminary injunc-

tion. See id. at 412, 96 S.Ct. at 3149. These considera-

tions are inapplicable here. Congress in the RLA estab-

lished a process of minor dispute settlement without

reference to any arbitration framework which would

have been agreed upon by the parties. The permissible

prearbitration remedies agreed upon by the parties, a):"

the effect of our decision on the number of minor dis-

putes likely to be settled by arbitration, are not issues

presented by this case.

6la

Moreover, implementation of the RLA’s process for

resolving minor disputes is not limited to granting pre-

liminary injunctive relief only where the relief will make

it more likely that the dispute will be arbitrated."* The

requirement of arbitration under the RLA is an essential

part of the congressional purpose of avoiding interruption

of the transportation industry. Chicago River, supra,

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

at 724-727, 65 S.Ct. at 1290-1292; Wien, supra at 1145-

46. The minor dispute arbitration procedure was de-

signed as a substitute for prearbitration strikes, cf. Chi-

cago River, supra, and we think this includes sympathy

strikes of the character presented in this case. See De-

troit and T. Shoreline R.R. v. United Transportation

Union, 396 U.S. 142, 148, 90 S.Ct. 294, 298, 24 L.Ed.2d

825 (1969) ; Texas and N.O.R.R. v. Brotherhood of Rail-

way & Steamship Clerks, 281 U.S. 548, 565, 50 S.Ct.

427, 482, 74 L.Ed. 1034 (1930). The legislative history

of the RLA suggests an intent to prevent a dispute that

involves a small number of transportation workers from

12 The Buffalo Forge result has been explained by some commen-

tators as resting on the insight that enjoining a sympathy strike

does not make it more likely that the arbitrable dispute—the con-

tractual right to engage in a sympathy strike—will be decided by

the arbitrator. See, e.g., 63 Cornell L.Rov. 507, #2 n.29 (1978);

Note, The Applicability of Boys Markets to Refusals to Cross a

Picket Line, 76 Colum.L.Rev. 118, 131 (1976). 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

injunctions, 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 necessary where the em-

ployer can show a strong likelihood of ultimately prevailing 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.

62a

disrupting the carrier’s existing operations and its rela-

tions with other employees. It would be contrary to this

objective to permit a sympathy strike before completion

of the minor dispute mechanisms for determining 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, a federal court under the RLA may not enjoin a

strike plainly in breach of contract where the major dis-

putes mechanism of the Act have been used and ex-

hausted. 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 disrupting a carrier’s operation, at least

where traditional standards governing preliminary relief

are met.’* This does no more than preserve the status quo

pending clarification of the parties’ rights by statutory

procedures. Maintenance of the status quo before and

during major dispute procedures is required by the RLA.

See Detroit and T. Shoreline R.R., supra; 45 U.S.C.

18 We emphasize that where, as is true in this case, the employer’s

, consti of ultimately prevailing depends in large measure on

construftion of the parties’ bargaining agreement, the district

judge should be satisfied that the sympathy strike clearly violates

the no-strike clause or a controlling 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 sympathy strikes may be enjoined as violating policies expressed

in the RLA. See Chicago & Illinois Midland Ry. v. Brotherhood of

Railroad Trainmen, 315 F.2d 771 (7th Cir.), vacated we moot, 375

U.S. 18 (1963). Compare Brotherhood of Railroad Trainmen v.

Atlantic Coast Line R. R., 362 F.2d 649 (5th Cir.), aff'd by an

equally divided court, 385 U.S. 20 (1966); Brotherhood of Loco-

motive Firemen and Enginemen v. Florida East Coast Ry., 346

F.2d 673 (5th Cir. 1965).

EN ee

63a

§ 156. Similarly where changes in the status quo are

likely to lead to serious harm and threaten to disrupt the

operation of the transportation carrier, injunctive relief

is proper pending operation of the Act’s minor dispute

procedures. Maintenance of the status quo is, of course,

a traditional basis for equitable relief. See, e.g., Brother-

hood of Locomotive Engineers v. Missouri-K.-T.R.R., 363

U.S. 528, 532-35, 80 S.Ct. 1826, 1829-13830, 4 L.Ed.2d

1379 (1960); Tanner Motor Livery, Ltd. v. Avis, Inc.,

316 F.2d 804, 808-9 (9th Cir.), cert. denied, 875 U.S. 821,

84 §.Ct. 59, 11 L.Ed.2d 55 (1963). Given the special con-

cern of the RLA over 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, 6 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 meaningless one. This

was a consideration in Missouri-K.-T.R.R., supra. Up-

holding the action of the district court, which issued an

injunction against a strike pending resolution of the

minor dispute by the settlement mechanisms of the Act,

the Court stated:

From the point of view of these employees, the criti-

cal point in the dispute may be when the change is

made, for, by the time of the frequently long-delayed

Board 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 defeating the

Board’s jurisdiction, would operate to preserve that

jurisdiction by preventing injury so irreparable that

a decision of the Board in the union’s favor would be

but an empty victory.

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

64a

For these reasons we conclude that the district court

had jurisdiction to enjoin the sympathy strike, in its en-

tirety, pending determination of the contractual rights of

the parties by the adjustment board.

Although the district court had jurisdiction to enjoin

the sympathy strike in its entirety, in light of the princi-

ples discussed in our opinion, relevant differences in the

contract provisions of different groups of TIA employees

may not have been considered as they should have been

by the district court. In addition to the general and mili-

tary no-strike 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,“ the language

would be.a factor to consider in weighing the likelihood

of the employer ultimately succeeding in its claim.”

SUMMARY

As to the primary strike, the order enjoining the strike

of military flights is reversed and the order declining

to enjoin the strike of nonmilitary strikes is affirmed.

14 See note 9, supra. We doubt, however, 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

individual, not concerted, refusals to cross legal picket lines.

16 We recognize the theoretical possibility that the combination

of our holdings regarding enjoinability of the primary and sym-

pathy strike might lead employers to take curious actions. An em-

ployer seeking an injunction against a strike might attempt to

argue that a clause which unambiguously prohibited the strike in

question—-so that 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 pend-

ing such arbitration. We doubt that such behavior Will be common,

and we trust that the district courts are capable of disposing of

any efforts to generate spurious minor disputes.

65a

As to the sympathy strike, the trial court’s ruling that

it had jurisdiction to enjoin the strike of military flights

is affirmed. If the strike were still in force we would

remand this aspect of the case tothe trial court for

further consideration of the propriety of the injunction

in view of our discussion of Buffalo Forge, the RLA,

and the standards for granting injunctive 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 non-

military flights on the ground of lack of jurisdiction is

reversed.

Because of the contempt proceedings 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 ques-

tion of the legal rights of the parties for the alleged con-

tempt in light of the principles set forth herein, together

with such other considerations as it may deem appro-

priate 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 proceedings.

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 district court’s injunction order

against the primary strike activity directed at military

flights. Although I am mindful of the post-impasse set-

ting of this labor dispute and the general policies favor-

ing the free play of economic forces when parties fail to

reach agreement, I believe that this is one of those oc-

66a

easions when the general policies of the Norris-LaGuardia

Act should give way to important countervailing 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. Vv.

Atkinson, 370 U.S. 195, 217, 82 S.Ct. 1328, 1340, 8

L.Ed.2d 440 (1962) (Brennan, J., dissenting). Specifi-

cally, 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, e¢.g., Chicago & N. W. Ry.

v. United Transp. Union, 402 U.S. 570, 91 S.Ct. 1731, 29

L.Ed.2d 187 (1971); Brotherhood of R. R. Trainmen Vv.

Howard, 348 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283

(1952) ; Graham v. Brotherhood of Locomotive Firemen

& Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed.2d 22

(1949). The Court has stated that “the propriety of

judicial enforcement [under the RLA] turns on the im-

portance of the duty in the scheme of the Act, the

capacity of courts to enforce it effectively, and the neces-

sity 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 578, 91 S.Ct.

at 1736. See also International Ass’n of Machinists v.

Street, 867 U.S. 740, 772-78, 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

the parties through various procedures designed to en-

hance the chances for agreement. As the majority ob-

serves, normally the exhaustion of the major dispute

processes of the RLA frees the parties to flex their

67a

economic muscle. See Brotherhood of 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 im-

portant considerations.

The majority acknowledges that the RLA does not

preclude the parties from supplementing the statutory

scheme by contract. Moreover, the majority has sustained

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 such a limitation

on the weapons available in their own bargaining proc-

ess. Nor am I persuaded that Trans International Air-

lines (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 dis-

pute, 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 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 conflicts with no other obligation imposed by

federal law.

Brotherhood of R. R. Trainmen v. Jacksonvilie Terminal

Co., supra, 394 U.S. 369, 392, 89 S.Ct. 1109, 1128, 32

L.Ed.2d 344 (emphasis added). I have concluded that

the use of such power in this case does conflict with an

important obligation 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

68a

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

amounted 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, rules,

and working conditions, and to settle all disputes... in

order to avoid any interruption to commerce or to the

operation of any carrier... .” (Emphasis added.) See

id. at 1091. It is the violation of this same duty to main-

tain 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 rele-

vant contract provision was intended to block the union

from pursuing its grievances by means of economic pres-

sure on the employer—in Seaboard, by forbidding the

giving of a section 6 notice 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 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 fall-

1The majority asserts that the injunction in Seaboard simply

required the union to abide by its agreement to limit the scope of

the section 6 proceeding, thereby enabling the parties 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 fore-

closed union efforts to compel any negotiations.

69a

back position. In each setting, a strike injunction could

have issued pending the RLA’s mandatory arbitration

procedures,” were it not for the fact that the minor dis-

pute 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)).*

The court in Seaboard 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 dif-

ference between an antistrike 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,

Inc., . . . 303 F.2d 5 [(5 Cir. 1962)], and an in-

junction pending determination by a court whether

a prohibition on reopening is illegal.

2The majority acknowledges that the strike issue here involved

a minor dispute. I have found no relevant case deciding whether

the post-contract setting of the dispute would preclude invocation

vl @ke 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, e.g., Nolde

Brothers, Inc. v. Local 358, Bakery Workers, 480 U.S. 248, 97 S.Ct.

1067, 51 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 unilaterally by self help when

the procedures of the Act have been exhausted. As in Seaboard,

Jurisdiction to determine the validity of a contract provision under

the RLA is thus properly invoked.

70a

Id. at 1092. Similarly, I can see little practical difference

between an injunction enforcing the arbitrator’s decision

that a strike was forbidden by the contract, despite an

underlying major disnute, 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 injunc-

tion in support of a judicial determination that an anti-

strike provision is not only clear, but also valid and

binding under the Act.*

The majority does not disapprove of Seaboard’s hold-

ing, nor does it appear to deny that the union in the

case before us has breached its duty to exert reasonable

efforts to “maintain agreements.” The majority’s main

effort to distinguish the case amounts to restating the

acknowledged fact that Seaboard involved the effect of

contractual efforts to preclude a section 6 proceeding

rather than efforts to specify permissible post-mediation

4The majority contends that such a distinction between injunc-

tions 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 drew the distinction there

because the policy supporting injunctive relief under the NLRA,

encouragement of private agreements to arbitrate labor disputes,

would be undermined by a decision granting courts authority to

intrude on the exclusive jurisdiction of the arbitrator by pre-

liminarily resolving the merits of a contract dispute. But the ma-

jority itself reaches a different result, and I concur, on the same

sympathy-strike issue as presented in Buffalo Forge, 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 on point, Seaboard, relies on this same broad RLA policy

against strikes pending resolution of a minor dispute, and con-

cludes that it also applies to questions of statutory construction

properly pending before a court. My extension of this reasoning

to injunctions 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. Transport Workers Union, 443 F.2d 4387

(2d Cir. 1971).

Tla

measures. But this distinction does not explain why the

union activity in Seaboard should constitute a more sig-

nificant breach of the statutory duty to “maintain agree-

ments” than occurred here, nor why injunctive relief was

more appropriate there.® While the post-mediation setting

is not irrelevant, the fact that a minor dispute is also

involved suggests that this distinction may not be de-

cisive. The majority appears to conclude otherwise

primarily by finding that only the violation of statutory

duties bearing a “substantial nexus” to statutory dispute

settlement, procedures represent a “weighty statutory

reason” for abrogating Norris-LaGuardia. See ante at

——. I turn next to that contention.

The Supreme Court has never stated that the only

RLA duties important enough to justify injunctive relief

5 Another possible distinction is that a second anomaly would have

resulted if injunctive relief against the 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 pro-

cedures, and injunctive relief may support this statutory duty.

The refusal to enjoin the strike in Seaboard would thus have ap-

peared to grant greater rights to a union which wrongfully de-

manded that the employer negotiate new terms than to one which

appropriately invoked section 6. See Seaboard World Airlines, Inc.

Vv. World Transport Workers Union, supra, 425 F.2d at 1091-92.

Even so, the union in Seaboard was not seeking to impose bargain-

ing 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 agreements,” the union might well have contended that

Norris-LaGuardia protected the use of economic pressure to con-

vince the employer that changed circumstances required negotiation

of new security provisions, notwithstading such pressure was in

breach of contract. 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.

72a

despite Norris-LaGuardia are those that directly support

dispute settlement procedures laid down by the Act. In

fact, a number of leading Supreme Court decisions in-

volve breach of the duty of fair representation of mi-

nority workers which the Court found implicit in the

Act’s overall scheme, a duty that does not directly support

the Act’s procedures for dispute resolution. See, e.g.,

Graham v. Brotherhood of Locomotive Firemen & Engine-

men, supra, 388 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22. The

majority thus incorrectly asserts that reversal is “com-

pelled by the combination of the manner in which Con-

gress and the RLA chose to reduce disruption in the

transportation industry, and the controlling interpreta-

tions of the Norris-LaGuardia Act.” See ante at ——.

There simply is no controlling precedent 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 needless

disruption of commerce and a corresponding 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 Vv.

Chicago River & Indiana 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 completion 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 de-

priving the Board of jurisdiction. Jd. at 39, 77 S.Ct. at

689. See also Boys Markets, Inc. v. Retail Clerks Union,

73a

398 U.S. 235, 252, 90 S.Ct. 1588, 1598, 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 bargaining agree-

ment in a particular fact situation, generally involving

only one employee,” 353 U.S. at 38, 77 S.Ct. at 636, but

it does not explain the application of the Chicago River

doctrine to factual settings in which the underlying griev-

ance 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 refusing to cross the

picket line of sister employees engaged in a post-medi-

ation primary strike. Since the only arbitrable issue is

the contractual legality of the strike itself, these employ-

ees are not merely required to resolve the underlying

dispute in accordance with the statutory scheme, but are

precluded from using their most effective weapon pending

resolution of the strike issue itself. The decision to enjoin

thus preliminarily resolves the merits of the minor dis-

pute over the applicability of the strike clause, arguably

in derogation of the Adjustment Board’s jurisdiction over

that issue.

It was precisely the limited and indirect nature of the

relationship between sympathy strikes and the efficacy of

a system of arbitration as the means of resolving dis-

putes, that led the Supreme Court to limit the rule of

Boys Markets to injunctions against strikes “over an

arbitrable grievance.” Buffalo Forge Co. v. United Steel-

workers, AFL-CIO, supra, 428 U.S. at 407-08, 96 S.Ct.

at 3147-48. The majority distinguishes Buffalo Forge,

correctly I believe, by finding that “the minor dispute

arbitration procedure [of the RLA] was designed as a

substitute for prearbitration strikes.” See ante at ——.

Whereas under the NLRA the judicial role involves aid-

ing private parties to resolve their disputes, which neces-

sarily focuses concern on whether a particular rule may

74a

discourage parties from agreeing to arbitrate, the judicial

role under the RLA involves the implementation of a

statutory policy requiring the parties to use reasonable

efforts to avoid disruption of commerce. The arbitration

scheme is thus read to mean that there is no unqualified

“right to strike’ in a minor dispute setting, at least

where traditional standards of equity are met. The tradi-

tional presumption that labor may use its full economic

power gives way to a statutory scheme that avoids dis-

ruption of commerce by requiring the parties with an

established relationship to settle minor disputes without

resort to such power.

Despite its post-mediation setting, the union’s strike

against military flights also involves a minor dispute.

That dispute should be resolved before the economic

power of the parties is unleashed. The majority acknowl-

edges the anomaly that if a no-strike clause in force

during the life of the contract was ambiguous, a strike

could be enjoined pending the outcome of minor dispute

arbitration. But the anomaly runs even deeper, for if

the union had made a colorable claim that the contract

clause before us did not intend to preclude post-mediation

strikes, the strike could also have been enjoined pending

arbitration even in its current setting. See note 2 supra.

It is difficult to see why the availability of injunctive

relief should turn exclusively on the clarity of the con-

tract provision in question. Under these circumstances,

the union should not be allowed to evade its contractual

obligation simply by claiming it is invalid under the

statute rather than not required by the contract. Thus,

this situation presents an appropriate occasion for ju-

dicial enforcement of the duty contained in section 2

First of the RLA.

III

Having concluded that Norris-LaGuardia may give

way to the need to enforce an important statutory duty,

and that the duty to be enforced may be one that lends

75a

support to the statute’s policy against disruption of com-

merce when there exists a minor dispute under the RLA,

I turn now to several additional factors which persuade

me that an injunction is appropriate here.

I disagree with the majority’s conclusion that uphold-

ing the injunction order here would grant courts a gen-

eral power to police contracts under the RLA.® In the

first place, courts will almost always lack jurisdiction to

do so because of the Adjustment Board’s exclusive juris-

diction over disputes concerning the meaning of a con-

tract. Moreover, since the section 2 First duty requires

only “reasonable efforts” to “maintain agreements,” it is

doubtful that courts would find the breach of that duty

where good faith disagreements over the meaning of a

contract existed. Thus, there is little chance that courts

would employ that duty as an excuse for preliminarily

resolving disputes between the parties pending arbitra-

tion.

I also disagree with the majority’s conclusion that one

of the underlying purposes of Norris-LaGuardia was to

limit the role of courts in enforcing labor contracts. See

ante at . In Chicago River, supra, 353 U.S. 30, 77

S.Ct. 635, 1 L.Ed.2d 622, which the majority relies on

for this assertion, the Supreme Court stated that Norris-

LaGuardia was designed to correct the abuses that came

when federal courts were “drawn into the field [of en-

6 Cf. Buffalo Forge Co. v. United Steelworkers, AFL-CIO, supra,

428 U.S. at 410, 96 S.Ct. at 3149 (arguing that sympathy strike

injunction necessarily implies judicial authority to “enjoin any

other alleged breach of contract pending the exhaustion of the appli-

cable grievance and arbitration provisions”). As Justice Stevens

observed in dissent in Buffalo Forge, however, such an argument

merely assumes that accommodation means repeal. See id. at 422-

23 n.11, 96 S.Ct. at 3154-55 (Stevens, J., dissenting).

76a

joining union activities] under the guise either of en-

forcing federal statutes, principally the Sherman Act,

or through diversity of citizenship jurisdiction.” Jd. at

40, 77 S.Ct. at 640. The abuses under diversity juris-

diction came about not through judicial construction of

collective bargaining agreements, but because of “the

tendency of judges to enjoin concerted activities in ac-

cordance with ‘doctrines of tort law which made the

lawfulness of a strike depend upon judicial views of social

and economic policy.’ [Citation omitted.]” Boys Mar-

kets, Inc. v. Retail Clerks Union, supra, 398 U.S. at 253

n. 22, 90 S.Ct. at 1593 (quoting Report of Special

Atkinson-Sinclair Committee, A.B.A. Labo. Relations

Law Section—Proceedings 226, 242 (1963)). On the

other hand, “[w]here an injunction is used against a

strike in breach of contract, the union is not subjected

in this fashion to judicially created limitations on its

freedom of action but is simply compelled to comply with

limitations to which it has previously agreed.” Jd. Ironi-

cally, the majority elsewhere acknowledges the plausibility

of the argument that courts might enjoir. unambiguous

contract breaches without doing violence to any Norris-

LaGuardia policy. See ante at ——.

It is true, of course, that the Supreme Court has not

read Taft-Hartley’s section 301 jurisdiction as repealing

Norris-LaGuardia as to disputes over the rights of parties

under a collective bargaining agreement. The Court

refused to do so largely because “[i]n the course of

enacting the Taft-Hartley Act, Congress rejected the

proposal that the Norris-LaGuardia Act’s prohibition

against labor-dispute injunctions be lifted to the extent

necessary to make injunctive remedies available in federal

courts for the purpose of enforcing collective bargaining

agreements.” Buffalo Forge Co. v. United Steelworkers,

AFL-CIO, supra, 428 U.S. at 409, 96 S.Ct. at 3148.

Nevertheless, as the majority acknowledges, labor rela-

77a

tions under the RLA developed along different lines than

in other industries, and “‘[t]he fundamental premises and

principles of the [RLA] are not the same as those which

form the basis of the [NLRA] ... .” Brotherhood of

R.R. Trainmen v. Chicago River & Ind. R.R., supra, 358

U.S. at 31-32 n. 2, 77 S.Ct. at 636.

While I do not argue that Norris-LaGuardia is broadly

repealed in every controversy relating to a collective bar-

gaining agreement under the RLA, I am persuaded that,

under these facts at least, it is appropriate to enjoin

the union’s clear breach of its contractual obligation. The

union’s violation of its statutory duty to “maintain agree-

ments” takes this case outside the ambit of the Court’s

oft-repeated statement that “although a suit may be

brought under § 301 against strikes which, while they

are breaches of private contracts, do not threaten any

additional public policy, in such cases the anti-injunction

policy of Norris-LaGuardia should prevail.” ‘Buffalo

Forge Co. v. United Steelworkers, AFL-CIO, supra, 428

U.S. at 409, 96 S.Ct. at 3148 (quoting Sinclair Refining

Co. v. Atkinson, supra, 370 U.S. at 225, 82 S.Ct. at 1844

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

statutory duties under the RLA, the violation of section 2

First does threaten an “additional public policy” and is

thus enjoinable.

I also disagree with the majority’s conclusion that the

policy of allowing the free play of economic forces in the

post-mediation setting is unduly compromised by the dis-

trict court’s injunction. It should first be observed that

the policy is not absolute. The majority acknowledges

that the Supreme Court has sanctioned the enjoining of

a post-mediation strike by a union which has violated its

section 2 First duty “to exert reasonable efforts to make

and maintain agreements” during the negotiating process.

Chicago & N.W. Ry. v. United Transp. Union, supra, 402

78a

U.S. at 571, 91 S.Ct. at 1782. Similarly, it is probable

that a strike-injunction could issue pending the outcome

of the binding arbitration required by the RLA’s minor

dispute provisions, even in a post-mediation setting.

Finally, as the majority acknowledges, an injunction may

issue to enforce an agreement by the parties to submit a

major dispute to binding interest arbitration after the

mechanisms of the Act are exhausted.

If a union may be compelled to honor its agreement

to forego completely the use of economic weapons pending

interest arbitration consistent with the policies under-

lying the RLA and Norris-LaGuardia, it is not clear why

they cannot be compelled to honor their commitment to

limit the use of such weapons consistent with a narrowly

tailored contract provision and their responsibility under

section 2 First of the RLA. Indeed, I am convinced of

the propriety of this injunction order in part because,

like the examples alluded to above, an injunction here

would constitute a very narrow exception to the general

policy of permitting strikes when negotiations have failed

to produce agreement. Allowing an injunction here would

not “provide a cover for freewheeling judicial interfer-

ence in labor relations of the sort that called forth the

Norris-LaGuardia Act in the first place.” /d. at 583, 91

S.Ct. at 1738.

It is significant that, as the majority observes, “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 TIA flights.”

See ante at ——. Specific enforcement of the duty to

maintain agreements in this setting does not, like the

labor injunctions which led to passage of Norris-LaGuar-

dia, leave the union without. alternatives for pressing its

demands. Cf. Brotherhood of R.R. Trainmen v. Chicago

River & Ind. R.R., supra, 358 U.S. at 41, 77 S.Ct. at 640

(injunction pending outcome of arbitration justified in

79a

part because it does not strip labor of its primary weapon

without substituting any reasonable alternative). The

determination whether section 2 First would sustain an

injunction against breach of a provision forbidding all

strike activity even after mediation has failed to produce

agreement may await a later case. See Seaboard World

Airlines v. Transport Workers Union, supra, 425 F.2d at

1091 (emphasizing that its determination of the propriety

of injunctive relief involved a spectrum, but finding such

relief in that case “still . . . withdrawn from the prohibi-

tions of the Norris-LaGuardia Act”).

Finally, in reconciling the policies of Norris-LaGuardia

and the RLA, I would put considerable weight on the

unique and important governmental interest in avoiding

disruption of military flights. This contract provision

was required as a condition for obtaining military con-

tracts, reflecting the federal government’s belief that such

a provision has significance for the nation’s security.

Here we are dealing with interests that, in a time of

emergency, ca be essential to our nation’s survival.

When the union’s strike activity clearly violates a con-

tract provision designed to prevent disruption of such a

vital part of the nation’s military transportation system,

an object which goes to the heart of the concerns that

distinguish the RLA in the scheme of the nation’s labor

laws, it behooves us to consider carefully whether section

2 First may not adequately support judicial efforts to see

that such a clause is not blatantly ignored.

Under these circumstances I would affirm.

80a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 77-3362

77-3363

77-3395

717-3781

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff-Cross-Appellant,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, etc., AIR-

LINE DIvisION TEAMSTER LOCAL 2707; MARVIN G.

GRISWOLD; TEAMSTER LOCAL 7382,

Defendants-Cross-A ppellees.

Nos. 78-1148

78-1232

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff-Appellee/Cross-A ppellant,

Vv.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al.,

AIRLINE DIVISION, TEAMSTERS LOCAL 2707, and AIR

LINE PILOTS ASSOCIATION, INTERNATIONAL, AFL-CIO,

Defendants-A ppellants/Cross-A ppellees.

ORDER

Before: GOODWIN, WALLACE, and KENNEDY, Circuit

Judges.

The panel as constituted in the above case has voted

to deny the petition for rehearing and to reject the sug-

gestion for a rehearing en banc.

8la

The full court has been advised of the suggestion for

en banc rehearing, and no judge of the court has re-

quested a vote on the suggestion for rehearing en banc.

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

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

In response to the petition for rehearing, J udge Good-

win files the following statement:

I would modify the majority opinion to hold that

a sympathy strike is a major dispute if the work

stoppage with which the sympathy strike is allied is

a major dispute. I do not read the Railway Labor

Act cases as extending to major disputes the power

to enjoin.

(Filed July 27, 1980)

82a

APPENDIX G

STATUTES INVOLVED

The portions of the Railway Labor Act, as amended,

involved in this case are Section 2, First, 45 U.S.C. § 152;

Section 2, Fourth, 45 U.S.C. § 152, Fourth; Section 2,

Seventh, 45 U.S.C. § 152, Seventh; Section 5, First, 45

U.S.C. § 155, First; and Section 6, 45 U.S.C. § 156.

Section 2, First of the Act states:

First. It shall be the duty of all carriers, their

officers, agents, and employees to exert every reason-

able effort to make and maintain agreements con-

cerning rates of pay, rules, and working conditions,

and to settle all disputes, whether arising out of the

application of such agreements or otherwise, 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.

Section 2, Fourth states:

Fourth. Employees shall have the right to orga-

nize and bargain collectively through representatives

of their own choosing. The majority of any craft

or class of employees shall have the right to deter-

mine who shall be the representative of the craft or

class for the purposes of this chapter. No carrier,

its officers, or agents shall deny or in any way ques-

tion the right of its employees to join, organize, or

assist in organizing the labor organization of their

choice, and it shall be unlawful for any carrier to

interfere in any way with the organization of its

employees. .. .

Section 2, Seventh states:

Seventh. No carrier, its officers, or agents shall

change the rates of pay, rules, or working conditions

83a

of its employees, as a class, as embodied in agree-

ments except in the manner prescribed in such agree-

ments or in section 156 of this title.

Section 5, First states:

First. The parties, or either party, to a dispute

between an employee or group of employees and a

carrier may invoke the services of the Mediation

Board in any of the following cases:

(a) A dispute concerning changes in rates of pay,

rules, or working conditions not adjusted by the

parties in conference.

(b) Any other dispute not referable to the Na-

tional Railroad Adjustment Board and not adjusted

in conference between the parties or where confer-

ences are refused.

The Mediation Board may proffer its services in

case any labor emergency is found by it to exist at

any time.

In either event the said Board shall promptly put

itself in communication with the parties to such

controversy, and shall use its best efforts, by media-

tion, to bring them to agreement. If such efforts to

bring about an amicable settlement through media-

tion shall be unsuccessful, the said Board shall at

once endeavor as its final required action (except as

provided in paragraph third of this section and in

section 160 of this title) to induce the parties to

submit their controversy to arbitration, in accord-

ance with the provisions of this chapter.

If arbitration at the request of the Board shall be

refused by one or both parties, the Board shall at

once notify both parties in writing that its mediatory

efforts have failed and for thirty days thereafter,

unless in the intervening period the parties agree

84a

to arbitration, or an emergency board shall be created

under section 160 of this title, no change shall be

made in the rates of pay, rules, or working condi-

tions or established practices in effect prior to the

time the dispute arose.

Section 6 states:

Carriers and representatives of the employees

shall give at least thirty days’ written notice of an

intended change in agreements affecting rates of

pay, rules, or working conditions, and the time and

place for the beginning of conference between the

representatives of the parties interested ir such in-

tended changes shall be agreed upon within ten days

after the receipt of said notice, and said time shall

be within the thirty days provided in the notice. In

every case where such notice of intended change has

been given, or conferences are being held with ref-

erence thereto, or the services of the Mediation Board

have been requested by either party, or said Board

has proffered its services, rates of pay, rules, or

working conditions shall not be altered by the car-

rier until the controversy has been finally acted upon,

as required by section 155 of this title, by the Medi-

ation Board, unless a period of ten days has elapsed

after termination of conferences without request for

or proffer of the services of the Mediation Board.

The portion of the Norris-LaGuardia Act involved in

this case is Section 104, 29 U.S.C. § 104.

Section 104 states:

No court of the United States shall have jurisdic-

tion to issue any restraining order or temporary or

permanent injunction in any case involving or grow-

ing out of any labor dispute to prohibit any person

or persons participating or interested in such dis-

pute (as these terms are herein defined) from doing,

85a

whether singly or in concert, any of the following

acts:

(a) Ceasing or refusing to perform any work or

to remain in any relation o. employment;

(b) Becoming or remaining a member of any

labor organization or of any employer organization,

regardless of any such undertaking or promise as

is described in section 103 of this title;

person participating or interested in such labor dis-

pute, any strike or unemployment benefits or insur-

ance, or other moneys or things of value;

(d) By all lawful means aiding any person par-

ticipating or interested in any labor dispute who is

being proceeded against in, or is prosecuting, any

action or suit in any court cf the United States or

of any State;

(e) Giving publicity to the existence of, or the

facts involved in, any labor dispute, whether by ad-

vertising, speaking, patrolling, or by any other

method not involving fraud or violence;

(f) Assembling peaceably to act or to organize to

act in promotion of their interests in a labor dispute;

(g) Advising or notifying any person of an in-

tention to do any of the acts heretofore specified ;

(h) Agreeing with other persons to do or not to

do any of the acts heretofore specified; and

(1) Advising, urging, or otherwise causing or in-

ducing without fraud or violence the acts heretofore

specified, regardless of any such undertaking or

promise as is described in section 108 of this title.

The portions of the National Labor Relations Act, as

amended, analagously involved in this case are Section

86a

8(a) (5), 29 U.S.C. § 158(a) (5); Section 8(b) (3), 29

U.S.C. § 158(b) (8); and Section 8(d), 29 U.S.C. § 158

(d).

Section 8(a) (5) states:

(a) It shall be an unfair labor practice for an

employer—

(5) to refuse to bargain collectively with the

representatives of his employees, subject to the

provisions of section 159(a) of this title.

Section 8(b) (3) states:

(b) It shall be an unfair labor practice for a

labor organization or its agents—

(3) to refuse to bargain collectively with an

employer, provided it is the representative of

his employees subject to the provisions of sec-

tion 159(a) of this title;

Section 8(d) states:

(d) For the purposes of this section, to bargain

collectively is the performance of the mutual obliga-

tion of the employer and the representative of the

employees to meet at reasonable times and confer in

good faith with respect to wages, hours, and other

terms and conditions of employment, or the negotia-

tion of an agreement, or any question arising there-

under, and the execution of a written contract in-

corporating any agreement reached if requested by

either party, but such obligation does not compel

either party to agree to a proposal or require the

making of a concession: Provided, That where there

is in effect a collective-bargaining contract covering

employees in an industry affecting commerce, the

duty to bargain collectively shall also mean that no

party to such contract shall terminate or modify

87a

such contract, unless the party desiring such termi-

nation or modification—

(1) serves a written notice upon the other

party to the contract of the proposed termina-

tion or modification sixty days prior to the

expiration date thereof, or in the event such

contract contains no expiration date, sixty days

prior to the time it is proposed to make such

termination or modification;

(2) offers to meet and confer with the other

party for the purpose of negotiating a new con-

tract or a contract containing the proposed

modifications ;

(3) notifies the Federal Mediation and Con-

ciliation Service within thirty days after such

notice of the existence of a dispute, and simul-

taneously therewith notifies any State or Terri-

torial agency established to mediate and con-

ciliate disputes within the State or Territory

where the dispute occurred, provided no agree-

ment has been reached by that time; and

(4) continues in full force and effect, without

resorting .o strike or lock-out, all the terms and

conditions of the existing contract for a period

of sixty days after such notice is given or until

the expiration date of such contract, whichever

occurs later.

The duties imposed upon employers, employees, and

labor organizations by paragraphs (2)-(4) of this

subsection shall become inapplicable upon an inter-

vening certification of the Board, under which the

labor organization or individual, which is a party

to the contract, has been superseded as or ceased to

be the representative of the employees subject to the

provisions of section 159(a) of this title, and the

88a

duties so imposed shall not be construed as requiring

either party to discuss or agree to any modification

of the terms and conditions contained in a contract

for a fixed period, if such modification is to become

effective before such terms and conditions can be

reopened under the provisions of the contract. Any

employee who engages in a strike within the sixty-

day period specified in this subsection shall lose his

status as an employee of the employer engaged in

the particular labor dispute, for the purpose of sec-

tions 158 to 160 of this title, but ‘such loss of status

for such employee shall terminate if and when he is

reemployed by such employer.

The portions of the Labor-Management Relations Act,

as amended, analagously involved in this case are Section

301, 29 U.S.C. § 185.

Section 301 states:

(a) Suits for violation of contracts between an

employer and a labor organization representing em-

ployes in an industry affecting commerce as defined

in this chapter, or between any such labor organiza-

tions, may be brought in any district court of the

United States having jurisdiction of the parties,

without respect to the amount in controversy or

without regard to the citizenship of the parties.

(b) Any labor organization which represents em-

ployees in an industry affecting commerce as defined

in this chapter and any employer whose activities

affect commerce as defined in this chapter shall be

bound by the acts of its agents. Any such labor or-

ganization may sue or be sued as an entity and in

behalf of the employees whom it represents in the

courts of the United States. Any money judgment

against a labor organization in a district court of the

United States shall be enforceable only against the

89a

organization as an entity and against its assets, and

shall not be enforceable against any individual mem-

ber or his assets.

by or against labor organizations in the district

courts of the United States, district courts shall be

deemed to have jurisdiction of a labor organization

(1) in the district in which such organization main-

tains its principal office, or (2) in any district in

which its duly authorized officers or agents are en-

gaged in representing or acting for employee mem-

bers.

(d) The service of summons, subpena, or other

legal process of any court of the United States upon

an officer or agent of a labor organization, in his

capacity as such, shall constitute service upon the

labor organization.

(e) For the purposes of this section, in determin-

ing whether any person is acting as an “agent” of

another person so as to make such other person re-

sponsible for his acts, the question of whether the

specific acts performed were actually authorized or

subsequently ratified shall not be controlling. June

23, 1947, c. 120, Title III, § 301, 61 Stat. 156.

90a

APPENDIX H

PRE-MERGER TIA FLIGHT ENGINEERS

AND PILOTS

(Agreement of July 21, 1974)

“SECTION 21

A. [Géff®ral 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.

st +* thes * *

D. [Military No Strike Clause] The Union further

agrees that the Crewmembers will continue to perform

all

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