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

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No. 80-478 ~JAN 34 1981

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COMIC EL ROMA JR Lenk |

IN THE * sie ahi ikea raaecdl

Supreme Court of the United States

OCTOBER TERM, 1980

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE

DIVISION; TEAMSTERS LOCAL 2707; MARVIN L. GRIS-

WOLD; TEAMSTERS LOCAL 732,

Petitioners,

V.

TRANS INTERNATIONAL AIRLINES, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF FOR THE PETITIONERS

DAVID PREVIANT

ROBERT M. BAPTISTE

ROLAND P. WILDER, JR.

Counsel of Record

JOSEPH E. SANTUCCI, JR.

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

Area Code 202, 624-6949

Attorneys for Petitioners,

International Brotherhood

of Teamsters, et al.

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TABLE OF CONTENTS

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IIIT sb icuiinsasbosenenaisnddlinbspeininniniandhvuesenineennceningtosinte

1. The Lower Court’s Decision Upholding An In-

junction Against Sympathetic Action Pending

Arbitration Cannot Be Reconciled With This

a: SINIIIOIIIIN tuiiciia.dubrcctniaindicecheoniishsimantanoaieabiddoiandnduns

2. This Case Is Moot Under The Standards Estab-

I isc

8. The Lower Court Correctly Held That The Mili-

tary No-Strike Clause Could Not Be Specifically

Enforced By Injunctive Order. Review Of This

Issue, Presented By TIA’s Petition In No. 80-

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SAE II ssisessiedntoniiencniisninneinmessnienipeitiiabpersisbeniantimsiavbinieens

APPENDICES:

A. Judgment of the Court of Appeals (Feb. 14,

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TABLE OF AUTHORITIES

CASES: Page

BLFE v. Florida E. Coast Ry., 346 F.2d 673 (5th

RR AR ona arr Oe nme aM Hern 6

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

CIT) secvcatsisninciannoreninicniensciionnntnnnsconsceetecensosecometeinete 8,4

BRT v. Atlantic Coast Line R.R., 362 F.2d 649 (5th

Cir.), aff'd by an equally divided court, 385 U.S.

20 (1966) sie AA oe vee 6

BRT v. Chicago River & Ind. R.R., 353 U.S. 30

CIID cacncsiscscocacnssinninansctnscsoccrennisiocccsssassesesocnnvacecstvos 4

BRT v. Jacksonville Terminal Co., 394 U.S. 369

CID ncsiictccbchins stianiantinninnbteniitenennaitinaniitualdibineinioinsess 5

Buck’s Stove & Range Co. Vv. Gompers, 219 U.S.

SI CE ssa isch saseanntectcenededebchpenteiibietnksnplenipstiinnndpadiatdéd 7

Buffalo Forge Co. v. USW, 428 U.S. 397 (1976)... 2,8,

4,5

Cheney California Lumber Co. v. NLRB, 319 F.2d

A Be a BE beiiieetchtaenenienintinnsttrcnsteelinvantninnan 6

Chicago & Ill. Midland Ry. v. BRT, 315 F.2d 771

(7th Cir.) , vacated as moot, 375 U.S. 18 (1963).. 6

Detroit & Toledo Shore Line R.R. v. UTU, 396 U.S.

ED sabincineienetictchenitiediitantsseniatebaennapititiediaiieess 8

Gompers V. Buck’s Stove & Range Co., 221 U.S.

I IED puarastaiteniceenicsiecnidaccarhinteiiativasbitansiitincdpainentidgcbin 6,7

H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970)........ 9

IAM V. Central Airlines, Inc., 372 U.S. 682 (1963) .. 5

Long Island R.R. v. System Federation No. 156,

Be ee Ce Gs BD ecstcterscccccsccsestncccccenscine 8,9

O’Donnell v. Wien Air Alaska, Inc., 551 F.2d 1141

I DEIUTE DT’ tuleiiensciehnsuichiipeshphbaiebesiisabsansiiliinuitebietins 5

Sinclair Refining Co. v. Atkinson, 370 U.S. 195

IIIT Scnicsdgiticssissinsiaassinesieoiceseilapeisideamaloiiteedinieinaniaeediei 4

Textile Workers v. Lincoln Mills, 358 U.S. 448

(1957) ... sisi dbebicttlaiensntiabsaliaeiieadcaebitedtaeiiiietielilitinn 4

STATUTES:

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

a 3

Be A I sii iiceicncschcatisvabcepeinalisaibediaidguundusiseiies 4

National Labor Relations Act, 29 U.S.C. § 141 ...... 4

iii

TABLE OF AUTHORITIES—Continued ~e

Page

Labor Management Relations Act of 1947, 29

pg UR IS eth 4,5

Railway Labor Act, 45 U.S.C. § 151, et seq.

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OTHER AUTHORITIES:

H. Rep. No. 1944, 78rd Cong., 2d Sess. (1934) ........ 4

D.E. Cullen, Strike Experience Under the Railway

Labor Act, in “The Railway Labor Act at Fifty”

fg PROSE VS ee 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-478

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE

DIVISION; TEAMSTERS LOCAL 2707; MARVIN L. GRIS-

WOLD; TEAMSTERS LOCAL 732,

¥, Petitioners,

TRANS INTERNATIONAL AIRLINES, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF FOR THE PETITIONERS

On November 17, 1980, the Respondent Trans Inter-

national Airlines, Inc. (TIA)! was instructed to respond

to the petition for certiorari filed in No. 80-478 by the

International Brotherhood of Teamsters, Airline Division

(Teamster Petitioners) and to the petition filed in 80-470

by the Air Line Pilots Association, International

(ALPA). This reply brief is being filed by the Teamster

Petitioners to respond to various matters raised for the

first time by Respondent’s Brief In Response.?

1 The Respondent has changed its name to Transamerica Airlines,

Inc.; however, it will be referred to as “TIA” here to avoid con-

fusion.

2In No. 80-480, TIA seeks certiorari to review the lower Court’s

unexceptional decision holding that military no-strike clauses can-

not be enforced specifically through injunctions issued by the fed-

2

ARGUMENT

1. The Lower Court’s Decision Upholding An Injunction

Against Sympathetic Action Pending Arbitration Can-

not Be Reconciled With This Court’s Decisions.

TIA has urged review of the question whether employ-

ees can be enjoined from sympathetically honoring the

picket lines of their fellow workers pending arbitration

of the propriety of such sympathetic action under con-

tractual no-strike commitments. To this extent, at least,

it joins both petitioning labor organizations in recogniz-

ing the critical importance of the lower court’s decision.

On the other hand, we take sharp exception to TIA’s con-

tention that the lower court’s decision can somehow be

reconciled with this Court’s decision in Buffalo Forge Co.

v. USW, 428 U.S. 397 (1976).

In Buffalo Forge, the union had gone on strike, not

because of any dispute it had with the employer, but to

support other local unions of the same international or-

ganization that had struck when contract negotiations

with the common employer broke down. There, as here,

the sympathizing union was party to a collective bargain-

ing agreement containing a no-strike clause which the

union contended, and the employer disputed, did not

prohibit sympathetic action. The employer sought an in-

junction against the strike pending resolution of the dis-

pute created by the union’s observance of its sister locals’

eral district courts, and also to have this Court decide whether

sympathetic action is prohibited by the major dispute provisions

of the Railway Labor Act, 45 U.S.C. §§ 152, First, 155, 156, 160,

an issue the court below expressly declined to reach. Obviously

attempting to bootstrap its own cause in No. 80-480, TIA has

reiterated here the argumenis it made in its petition. In the

Teamsters’ Brief In Oposition, we responded to TIA’s petition by

showing that the distinct issues raised there do not warrant this

Court’s attention and that they are quite different from the ques-

tions presented for review in Nos. 80-478 and 80-470. There is no

need for us to repeat what already has been made clear, and thus

we will rely on our opposition brief (“IBT Op. Br.”) to avoid

repetition.

picket lines through arbitration. Injunctive relief was

denied in both lower courts and this Court affirmed.

The Court concluded in its opinion that the reasoning

of Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235

(1970), which held that the federal policy favoring arbi-

tration warranted preliminary injunctive relief against

strikes over arbitrable grievances, was inapplicable to

sympathetic work stoppages. This was because the arbi-

tration process cannot be frustrated where, as here, there

is no underlying issue other than the strike itself to be

arbitrated, and thus the anti-injunction policy embodied

in §4 of the Norris-LaGuardia Act, 29 U.S.C. § 104,

must prevail. Significantly, the Court said:

“If an injunction could issue against the strike in

this case, so in proper circumstances could a court

enjoin any other alleged breach of contract pending

the exhaustion of the applicable grievance and arbi-

tration provisions even though the injunction would

otherwise violate one of the express prohibitions of

§ 4. The court in such cases would be permitted, if

the dispute was arbitrable, to hold hearings, make

findings of fact, interpret the applicable provisions

of the contract and issue injunctions so as to restore

the status quo or to otherwise regulate the relation-

ship of parties pending exhaustion of the arbitration

process. This would cut deeply into the policy of the

Norris-LaGuardia Act and make the courts potential

participants in a wide range of arbitrable disputes

under the many existing and future collective bar-

gaining contracts, not just for the purpose of en-

forcing promises to arbitrate, which was the limit of

Boys Markets, but for the purpose of preliminarily

dealings with the merits of the factual and legal is-

sues that are subjects for the arbitrator and of is-

suing injunctions that would otherwise be forbidden

by the Norris-LaGuardia Act.” [Buffalo Forge Co. /.

United Steelworkers, supra, 428 U.S. at 410-11.

(Footnotes omitted.) ]

4

Notably TIA does not dispute the district court’s con-

clusion that the facts of this case and those of Buffalo

Forge are virtually identical (Pet. App., at 17a). In-

deed, the Ninth Circuit Court of Appeals’ decision is not

premised on any factual difference. Nevertheless, the

court of appeals declined to follow Buffalo Forge, effec-

tively holding that Norris-LaGuardia’s protections have

a more limited application to labor disputes arising in the

rail and air industries than to labor disputes in other in-

dustries. The Norris-LaGuardia Act, of course, admits

of no such distinction in its definition of “labor dis-

pute.” 29 U.S.C. § 113.

Nor can the result reached by the court of appeals

be justified on the basis of accommodating Norris-La-

Guardia to the specific commands of the Railway Labor

Act. The court below cited no specific requirement, either

in the RLA itself or in its legislative history, that could

be contravened by sympathetic action.* And, the RLA’s

policies mandating arbitration as the “means for the

settlement of minor disputes known as ‘grievances,’ ”’ *

as elaborated by this Court in BRT v. Chicago River &

Ind. R.R., 353 U.S. 80 (1957), “apply with equal force”

to injunctions under § 301 of the LMRA. Sinclair Re-

fining Co. v. Atkinson, 370 U.S. 195, 249 (1962) (Bren-

nan, J., dissenting) ; Boys Markets, Inc. v. Retail Clerks,

supra, 398 U.S. at 252. See also Textile Workers v.

Lincoln Mills, 353 U.S. 448, 458 (1957).

3 One of the RLA’s general purposes, of course, is to avoid inter-

ruptions to transportation (Pet. App., at 61a), a purpose that is

identical to the LMRA’s object of avoiding “industrial strife which

interferes with the normal flow of commerce... .” 29 U.S.C. § 141.

Literal application of this general policy “would obviously outlaw

any and all strikes in the rail and air industries... .” D. E. Cullen,

Strike Experience Under the Railway Labor Act, in “The Railway

Labor Act at Fifty” 188 (1976).

4H. Rep. No. 1944, 78d Cong., 2d Sess. 2 (1934), in Subcomm. on

Labor, Senate Comm. on Labor and Public Welfare, Legislaitve

History of the Railway Labor Act, As Amended 919 (1974).

5

In BRT v. Jacksonville Terminal Co., 394 U.S. 344,

385-86 (1969), moreover, this Court rejected any pur-

ported distinction in the right of self-help available under

the RLA and the LMRA, stating:

“The Court has consistently held peaceful primary

picketing incident to a lawful strike to be protected

conduct under the National Labor Relations Act.

‘Picketing has traditionally been a major weapon

to implement the goals of a strike’ and ‘it is im-

plicit in the Act that the public interest is served by

freedom of labor to use the weapon of picketing.’

We see no possible grounds for distinguishing picket-

ing under the Railway Labor Act. Peaceful primary

strikes and picketing incident thereto lie within the

core of protected self-help under the Railway Labor

Act.” [Citations omitted. ]

Consequently, the Court below had no valid reason for

its refusal to follow Buffalo Forge. The relevant statu-

tory policies in the RLA and the LMRA are the same;

in this case, the anti-injunction policy of Norris-La-

Guardia should also prevail. Nothing TIA says requires

a different result. Its novel argument that the RLA

itself, independent of any contractual no-strike clause,

imports a statutory prohibition against sympathetic ac-

tion incident to a lawful primary strike is either cir-

cular or contrary to existing authority.® More signifi-

5 TIA’s statutory argument is more than a little imprecise. If

TIA contends that § 2, First requires that the no-strike clause be

maintained, then its theory of a statutory violation presupposes a

breach of that clause. But this determination is for the adjustment

board, which has exclusive jurisdiction over minor disputes (O’Don-

nell v. Wien Air Alaska, Inc., 551 F.2d 1141 (9th Cir. 1977)), and

§ 2, First adds nothing to the court’s authority to enforce the

board’s award. IAM v. Central Airlines, Inc., 372 U.S. 682 (1963).

To the extent TIA contends that § 2, First is a contract enforcement

device akin to $301 of the LMRA, 29 U.S.C. § 185, it is simply

wrong. See IBT Op. Br., at 9-16. Finally, in the absence of a no-

strike clause, sympathetic action does not even arguably violate

6

cantly, TIA offers no rationale * for the court of appeals’

implication of an independent federal remedy against

self-help—a remedy created not to vindicate the Act’s

minor dispute procedure, which was the limit of Chicago

River,’ but to minimize the economic pressure employees

can exert in major disputes.®

The issue presented for review in Nos. 80-470 and

80-478 should be resolved by this Court because the

lower court’s decision is inconsistent with Buffalo Forge.

Also, an issue of this importance, having an immediate

and dramatic impact on labor relations in the nation’s

rail and air industries, should not be determined by a

split panel of the court of appeals.

2. This Case Is Moot Under The Standards Established

By This Court.

The facts enumerated by TIA (Br., at 15-16) disclose

no basis for distinguishing Gompers v. Buck’s Stove &

Range Co., 221 U.S. 418 (1911) (Gompers II). Con-

trary to its assertions, TIA was not entitled to settle

ia ale ‘—

the RLA. BRT vy. Atlantic Coast Line R.R., 362 F.2d 649 (5th

Cir.), aff'd by an equally divided court, 385 U.S. 20 (1966); BLFE

v. Florida EF. Coast Ry., 346 F.2d 673 (5th Cir. 1965); Chicago &

Ill. Midland Ry. v. BRT, 315 F.2d 771, 776-78 (7th Cir.) (dissent-

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

6 TIA’s discussion contrasting the RLA’s major dispute procedure

with how contracts are negotiated under the LMRA (TIA Br., at

11-13), is irrelevant to the issue decided by the court below (see

IBT Op. Br., at 17-20). Because breach of a no-strike clause does

not constitute an unfair labor practice (Cheney California Lumber

Co. v. NLRB, 319 F.2d 375, 378 (9th Cir. 1963)), TIA’s doubtful

description of the NLRB’s administrative procedures for remedying

unfair labor practices (TIA Br., at 13) is also beside the point. Its

remaining statements (TIA Br., at 14) are both unsupported and

unsupportable.

7 BRT v. Chicago River & Ind. R.R., supra, 353 U.S. 30.

8 BLFE Vv. Florida E. Coast Ry., supra, 346 F.2d at 676.

7

fully the underlying dispute which led to the grant of

preliminary injunctive relief, thereby obviating the need

for a final injunction and mooting the main case, and

still continue to press its injunction case. Certainly the

same dispute cannot be both settled and litigated. TIA’s

comments regarding the absence of a “back-to-work”

agreement are irrelevant, since the dispute which gave

rise to the main action was fully settled without such

an agreement.® Thus, at this point, the main case was

in the same posture as Buck’s Stove & Range Co. V.

Gompers, 219 U.S. 581 (1911) (Gompers I).

This Court’s decision in Gompers II was not based on

“waiver.” It cannot realistically be argued that Buck’s,

in settling the main action, intended to end the contempt

case, which this Court held to be civil in nature and

thus ancillary to the main action. Accordingly, it is im-

material here whether TIA, by effectively settling the

main injunctive action, intended to continue the deriva-

tive contempt proceeding.” The latter “proceeding neces-

sarily ended with the settlement of the main cause of

which it is a part....” 221 U.S. at 452.4

® There was no mutual understanding that the parties “retained

all prior claims spawned by the strike” (TIA Br., at 16-17) ; indeed,

no agreement at all was reached, and the parties were left to pursue

whatever legal remedies they possessed.

10 TIA persists in arguing this issue as if a factual issue exists

over whether it agreed in January, 1978, that the contempt proceed-

ing would be dismissed. There was no such agreement, no factual

issue, and no need for a record on this point.

11 The July 23, 1979 affidavit submitted in response to the court

of appeals’ show cause order, which apparently is not fully under-

stood by TIA (see Br., at 15), is reproduced in Appendix B, infra

at 3a. The court below had little difficulty in understanding it,

however (Pet. App., at 37a), and there can be no doubt that it

clearly raised the Gompers II issue, infra at 9a.

8

3. The Lower Court Correctly Held That The Military

No-Strike Clause Could Not Be Specifically Enforced

By Injunctive Order. Review Of This Issue, Presented

By TIA’s Petition In No. 80-480, Is Not Warranted.

As shown (IBT Op. Br., at 9-16), the only basis on

which the equity jurisdiction of the federal courts can

be invoked in a railway or airline labor dispute is to

protect the integrity of the Railway Labor Act’s dispute

settlement mechanisms. In this case, the Act’s major

dispute procedures were exhausted in an unsuccessful,

good-faith attempt to reach agreement. Since the Act’s

procedures were not endangered by the threatened strike

against military flights, the Norris-LaGuardia Act pre-

cluded the district court from specifically enforcing the

military no-strike clause. Not surprisingly, TIA’s view

of § 2, First as an independent contract enforcement de-

vice—instead of an element in “an integrated, harmonious

scheme for preserving the status quo from the beginning

of the major dispute through the final 30-day ‘cooling-

off’ period” “—was rejected by the Court below.

Long Island R.R. v. System Federation No. 156, 368

F.2d 50 (2d Cir. 1966), which involved bad-faith bar-

gaining and failure to exhaust the Act’s procedures, does

not support TIA’s view of the Act. There the Second

Circuit Court of Appeals upheld an injunction against

a strike having two objects: (1) to force the railroad

to bypass the System Federation (the “representative”

of the railroad’s shop craft employees) and negotiate

directly with Railway Carmen’s Lodge 886; and (2) to

compel the railroad to grant wage increases and make

rules changes, even though the applicable national and

local agreements would not expire for another year.

Stating that the union had “short-circuit[ed]” the Act,

the court of appeals held: “Since the carmen did not

12 Detroit & Toledo Shore Line R.R. v. UTU, 396 U.S. 142, 152

(1969).

3

utilize the procedures of the Act for minor or major

disputes—indeed did not even initiate them—the union’s

resort to self-help was unwarranted.” Id. at 53.

Attempting to transform the military no-strike clause

into an agreement on contract duration, which it obvi-

ously was not, TIA urges that the entire collective bar-

gaining agreement was continued beyond the status quo

period with respect to military flights by the clause (TIA

Br., at 6). This is incorrect. The contract was continued

with respect to military flights, not by agreement of the

parties reached in free collective bargaining, but by court

decree (Pet. App., at 10a). By its terms, the military

no-strike clause had nothing to do with the duration of

the agreement. And, reliance on the court’s artificial

extension of the agreement beyond its expiration cannot

turn the military no-strike clause into something it is not.

In fact, the district court’s order serves to illustrate

the error it made in enforcing the clause by injunctive

decree. Once having ordered the flight attendants to work

during their lawful primary strike, the district court

realized that it had tipped the balance of economic power

in favor of the carrier (Pet. App., at 7a). It then sought

to remedy the situation by ordering TIA to adhere to the

agreement in connection with its operation of military

flights (Pet. App., at 10a), thereby establishing the terms

and conditions under which the flight attendants would

work. Compare H. K. Porter Co. v. NLRB, 397 U.S. 99

(1970). As the court of appeals held in reversing, the

Norris-LaGuardia Act was enacted to prevent the federal

courts from altering, through injunctions, the economic

balance between labor and management (Pet. App., at

54a).

10

CONCLUSION

For the foregoing reasons, the petition for certiorari

in No. 80-478 should be granted, and the petition in No

80-480 should be denied.

Respectfully submitted,

DAVID PREVIANT

ROBERT M. BAPTISTE

ROLAND P. WILDER, JR.

Counsel of Record

JOSEPH E. SANTUCCI, JR.

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

Area Code 202, 624-6949

Attorneys for Petitioners,

International Brotherhood

of Teamsters, et al.

DATED: January 14, 1981

Appendices

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 77-3362, 77-3363, 77-3395, 77-3781, 78-1148, and

78-1232

DC# Cv 77-2010 RFP

TRANS INTERNAL * AIRLINES, INC.,

Plaintiff-Cross-Appellant,

vs.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, etc., AIR-

LINE DIVISION TEAMSTERS LOCAL 2707; MARVIN G.

GRISWOLD; TEAMSTERS LOCAL 732,

Defendants-Cross-A ppellees.

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff-Appellee-Cross-A ppellant.

Vs.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al.,

Defendants-Appellants/Cross Appellees.

Appeal from the United States District Court for the

Northern District of California

JUDGMENT

THIS CAUSE came on to be heard on the Transcript

of the Record from the United States District Court for

the Northern District of California and was duly

submitted.

* So in original.

2a

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment

of the said District Court in this Cause be, and hereby

is affirmed in part, reversed in part and remanded for

further proceedings.

The parties shall bear their own costs for the appeals

take * to this court.

Filed and entered February 14, 1980.

* So in original.

8a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

TRANS INTERNATIONAL AIRLINES, INC.,

Appellant, Cross-Appellee.

V.

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 ; AND ‘PRAMSTERS LOCAL 782, ,

Appellees, Cross-Appellants,

Nos. 78-1148 and 78-1232

TRANS INTERNATIONAL AIRLINES, INC.,

Appellee, Cross-Appellant,

nips v.

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-A ppellees.

4a

AFFIDAVIT IN RESPONSE TO THE

COURT’S ORDER OF JULY 5, 1979

Appeal From The United States District Court

For The Northern District Of California

Before: GOODWIN, WALLACE and KENNEDY,

Circuit Judges

AFFIDAVIT

DISTRICT OF COLUMBIA )

) ss:

WASHINGTON, )

I, ROLAND P. WILDER, JR., of 25 Louisiana Avenue,

N.W., Washington, D.C. 20001, being duly sworn, do

hereby depose and say:

1. Your affiant is a lawyer licensed to practice in

Washington of the District of Columbia. I am a member

of the Bar of the United States Court of Appeals for the

Ninth Circuit. By permission, I have represented the

International Brotherhood of Teamsters Airline Division,

Teamsters Local Unions 732 and 2707, Marvin L. Gris-

wold and Henry J. Breen [hereinafter “Teamster de-

fendants’”], before the District Court and in appellate

proceedings before this Court. For purposes of this cose,

I am associated with Kenneth L. Silbert, Esquire, Beeson,

Tayer & Kovach, 100 Bush Street, San Francisco, Cali-

fornia-94104, and Robert J. Higgins, Esquire, Dickstein,

Shapiro & Morin, 2101 L Street, N.W., Washington, D.C.-

20037.

2. This affidavit is submitted in accordance with this

Court’s Order of July 5, 1979, directing that cause be

shown why this appeal should not be dismissed as moot.

The Order requires a specific enumeration of the issues,

5a

whether of law or fact, “which constitute a case or con-

troversy 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 (US.,

Feb. 22, 1979).” The Teamster defendants contend that

this appeal cannot be dismissed unless a mandate issues

directing the lower Court to dismiss the main case and

ancillary civil contempt proceedings for mootness.

3. These consolidated cases are before the Court under

28 U.S.C. § 1292 and 29 U.S.C. § 110, upon appeals from

the District Court’s orders enjoining the Teamster defend-

ants (then the representative of TIA’s flight attendants

and flight engineers) and the Air Line Pilots Association

(the representative of TIA’s pilots) from interfering

with TIA’s military flight operations during a strike

beginning in September, 1977, by the flight attendants.

[96 L.R.R.M. 2763, 2766.] TIA has cross-appealed from

the District Court’s refusal to enjoin strike activity by

the flight atendants against commercial operations, as

well as from its refusal to enjoin sympathetic action by

the flight engineers and pilots affecting nonmilitary

traffic.

4. The Teamster defendants noticed their appeal from

the District Court’s injunctive orders on Ocotber 4, 1977.

After their application to suspend the injunctions was

denied by the District Court, they moved this Court to

stay the injunctions pending appeal. TIA cross-moved for

temporary relief pending appeal in an attempt to obtain

the relief denied it by the District Court. These motions

were argued before a panel of this Court on October 19,

1977, and remain under submission. The main appeal has

been briefed by all parties and is awaiting argument.

5. During the strike, TIA filed a Petition for Adjudi-

cation in Civil Contempt, which came on for hearing be-

fore the Honorable Cecil F. Poole on November 1, 1977.

Judge Poole found that beginning on Sunday, October 30,

6a

1977 and continuing to 7:52 P.M. on November 1, 1977,

the Teamster defendants were in contempt of the pre-

liminary injunction orders. No evidence was taken on

the amount of damages allegedly suffered by TIA. Nor

did TIA specify the amount of compensatory damages

‘it sought. Judge Poole ordered that “the matters of award

of compensation to the plaintiff” be referred to Chief

Judge Peckham, who had issued the preliminary injunc-

tions. On November 9, 1977, the Teamster defendants

appealed from the contempt adjudication (Case Nos. 78-

1091, -1092). These appeals were dismissed on November

24, 1978, by this Court.

6. The basic question regarding the validity of the in-

junctive orders, of course, was already pending before

this Court by reason of the instant appeals. Discovery

and trial on the question of compensatory damages, if

any, due TIA because of the Teamster defendants’ con-

duct on October 30, 31 and November 1, 1977, has been

continued until this Court decides the pending appeals.

For TIA’s entitlement to compensatory damages, in the

first instance, turns on whether the preliminary injunc-

tive orders were lawfully entered.'

1“A judgment of civil contempt, being remedial in nature, stands

or falls within the validity or invalidity of the order, and the

opposing party should be compensated only if he was entitled to

the order.” Lewis v. S. S. Bawne, 534 F.2d 1115, 1119 (5th Cir.

1976) (citations omitted). Accord, e.g., United States v. United

Mineworkers, 330 U.S. 258, 304 (1947), (the right of “a civil

litigant to the compensatory fine is dependent upon the outcome

of the basic controversy”); Latrobe Steel Co. v. United Steel-

workers, 545 F.2d 1836, 1845-46 (3d Cir. 1976) (“a compensatory

civil contempt judgment cannot withstand the reversal of an injunc-

tion . . . a private party should not profit as a result of an order

to which [it is later determined] he was never entitled”) ; Heyman

v. Kline, 456 F.2d 128, 181 (2d Cir.), cert. denied, 409 U.S. 847

(1972) (“judgments of civil contempt fall when the order under-

lying them is vacated”); Salvage Process Corp. v. Acme Tank

Cleaning Process Corp., 86 F.2d 727 (2d Cir. 1936) (“[t]o let the

Ta

7. The flight attendant strike continued from Septem-

ber 10, 1977 until early January, 1978, when TIA and

the Teamster deefndants entered into a new flight attend-

ant agreement effective for a three-year term. Strike

activity was not resumed after agreement was reached.

The new agreement inculdes a military clause containing

the same terms as the one in issue on this appeal.

8. Substantial difficulties were encountered in January,

1978, regarding the reinstatement of strikers, the rights

of Union negotiating committee members, and the resolu-

tion of certain employee claims that had arisen during

and after the strike. These matters led to the filing of a

counterclaim by the Teamster defendants on February

1, 1978, asserting a variety of claims against TIA. There-

after, TIA moved to dismiss the counterclaim. Its dis-

missal motion has been briefed and argued along with

various discovery motions. All motions were submitted

on May 7, 1979, and are currently pending decision before

the District Court.

9. The Teamster defendants no longer represent the

flight attendant craft or class on TIA’s property. Follow-

ing an election in which the flight attendants voted to

change their representative, the National Mediation

Board certified the Association of Flight Attendants as

the statutory collective bargaining agent for the craft or

class. [Trans International Airlines, Inc., Case No. R-

4931 (NMB, June 4, 1979).]

10. The District Court has been advised of the Team-

ster defendants’ loss of representative status, and of

the fact that this development appears to raise difficult

questions regarding the Teamster defendants’ right to

liability stand for past contumacy would be to give the plaintiff a

remedy not for a right but for a wrong, which the law should

not do”).

8a

continue to act in reference to the counterclaim.? It was

suggested that the Court might wish to withhold tem-

porarily its decision on pending motions until the T’eam-

sters Union could bring the issues raised by loss of its

representative status before the Court in an appropriate

manner.

11. In regard to this Court’s July 5, 1979 Order to

show that “‘(1) the challenged action was in its dura-

tion too short to be fully litigated prior to its cessation

or termination, and (2) there... [is] a reasonable ex-

pectation that the same complaining party would be sub-

jected to the same action again,’”* I note the following:

a. There can be no expectation that TIA will be

subjected to the Teamster defendants’ alleged bad-

faith bargaining tactics, since TIA’s flight attend.

ants now have a different bargaining representative.

Thus, TIA’s appeal from the District Court’s refusal

to enjoin a strike against the Carrier’s commercial

operations is clearly moot.* Similarly the Teamster

defendants could hardly direct flight attendants to

strike TIA’s military operations in the absence of

representative status.

b. Although it is conceivable that the Teamster-

represented flight engineers might sympathetically re-

spect a future picket line established by the Associa-

tion of Flight Attendants, this decision would have

2 International Brotherhood of Teamsters v. Zantop Air Trans-

port Corp., 394 F.2d 36 (6th Cir. 1968); Cf. Adams v. Federal

Express Corp., 547 F.2d 319 (6th Cir. 1976), cert. denied, 431

U.S. 915 (1977).

8 Illinois State Board of Elections v. Socialist Workers Party,

supra, 47 U.S.L.W. at 4201.

4The Teamster defendants have already argued that this aspect

of the Carrier’s cross-appeal is moot. See Brief of Defendants-

Appellees/Cross-Appellants, at p. 14, n.3.

9a

to be made when and if the flight attendants strike

after their current contract expires and they have

exhausted the Railway Labor Act’s procedures. Be-

cause no one can foresee what circumstances will

prevail several years into the future, nothing more

can be said than the flight engineers’ sympathetic

action in 1977 on behalf of the flight attendants is

capable of repetition.

12. The question of whether the Teamster defend-

ants’ appeals from the District Court’s military strike

injunctions present a case or controversy, in one sense,

turns on the civil contempt proceeding. Certainly if the

contempt proceeding is to continue into a compensatory

fine phase, the validity of the original injunctions is very

much a live issue. TIA cannot recover any damages

if, as the Teamster defendants contend in these appeals,

the military strike injunctions are invalid. [See au-

thorities cited in note 1, supra.] Basic considerations of

fairness militate against further prosecution of a civil

contempt action after the contemnor’s right to defend

on the ground that the injunction was improvidently

issued has been taken away by a determination that the

main action has become moot.®

13. TIA posted a $10,000 bond to indemnify the

Teamster defendants for fees, costs and injury suffered

in the event it was subsequently determined that the

preliminary injunctions had been improvidently granted.

The right of the Teamster defendants to indemnification

5 Upon a determination that the main action has become moot

and thus unreviewable on appeal, the lower Court loses jurisdiction

over pending civil contempt proceedings. Gompers v. Buck’s Stove

& Range Co., 221 U.S. 418, 451-52 (1911). This is because no inde-

pendent jurisdictional basis for the contempt exists apart from the

main action. “{WJithout a final decree, a civil contempt order

cannot have any finality.” Pacific Gamble Robinson Co. v. Minne-

apolis & St. Louis Ry., 92 F. Supp. 352, 354 (D. Minn. 1950), citing

Fox v. Capital Co., 299 U.S. 105 (1936).

10a

depends upon a decision on the merits.* Unless this right

is waived, these cases are not moot.’ I have been in-

structed to, and hereby do, enter a conditional waiver of

the Teamster defendants’ right to claim on the indemni-

fication bond. Thus, if final dismissal of the main case

and all civil contempt proceedings for mootness is other-

wise warranted, the Teamster defendants waive their

right to seek indemnification.

14. If, due to continuation of the civil contempt pro-

ceedings, a controversy remains regarding the validity

of the District Court’s military strike injunction, the

following issues are before the Court:

a. Does a provision in a collective bargaining

agreement subject to the Railway Labor Act remain

in effect after a Section 6 Notice, proposing changes

in the provision, has been given, and the proposed

changes have been fully processed under the Act’s

mandatory procedures through the thirty day “cool-

ing-off” period?

b. Did the District Court lack jurisdiction to en-

force by injunction a military no-strike clause that

allegedly survived exhaustion of the mandatory pro-

cedures prescribed by the Act according to the

parties’ intent?

(1) Do the Federal Courts have either di-

versity or Federal question jurisdiction to en-

force the provisions of collective bergaining

agreements subject to the Railway Labor Act?

6 NAPA Pittsburgh, Inc. v. Automotive Chauffeurs, Local 926,

502 F.2d 321, 322 n.1 (3d Cir.), cert. denied, 419 U.S. 1049 (1974).

7 Liner v. Jafco, Inc., 875 U.S. 301, 305 (1964); Associated

General Contractors of Minnesota v. 1.U.0.E., Twin City Local 49,

519 F.2d 269 (8th Cir. 1975); Rochester Tel. Corp. v. C.W.A, 456

F.2d 1057 (2d Cir. 1972); NAPA Pittsburgh, Inc. v. Automotive

Chauffeurs, Local 926, supra, 502 F.2d at 322 n.1.

lla

(2) Does the Norris-LaGuardia Act prohibit

issuance of an injunction to specifically enforce

a no-strike clause?

ce. Did the District Court lack jurisdiction under

the Railway Labor and Norris-LaGuardia Acts to

enjoin flight engineers employed by the Carrier

from respecting the picket lines established by its

flight attendants, where the engineers’ concerted ac-

tivity did not relate to an arbitrable dispute be-

tween them and the Carrier, but was resorted to

solely to support the flight attendants in their major

dispute?

15. I have served a copy of this Affidavit upon each

attorney of record in accordance with the attached Cer-

tificate of Service.

I have read the foregoing Affidavit consisting of fifteen

paragraphs, and, except for footnotes and bracketed ma-

terial unsuitable for verification, it is true and correct

to the best of my knowledge, information and belief.

/s/ Roland P. Wilder, Jr.

ROLAND P. WILDER, JR.

Subscribed and sworn to before me this 23rd day of

July, 1979.

/3/ Melvin Hardy

Notary Public

My Commission Expires June 30, 1981.

OoLv