Petition — Trans International Airlines, Inc. v. Brotherhood of Teamsters, Airline Division (Nos. 80-480, 80-470, 80-478)

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Supreme Court, U. S. |

80-480 FILED

sep 25 1980

MICHAEL RODAK, JR., CLERK

In the Supreme Court of the United-States—

October Term, 1980

TRANS INTERNATIONAL AIRLINES, INC.,

Petitioner,

VS.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA, AIRLINE DIVISION; TEAMSTERS LOCAL

2707; MARVIN G. GRISWOLD; TEAMSTERS LOCAL 732;

AND AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, AFL-CIO,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT J. BERGHEL

CHARLES KELSO

(Counsel of Record)

RoseRT W. ASHMORE

FISHER & PHILLIPS

3500 First National Bank Tower

Atlanta, Georgia 30383

RosBertT T. FRIES

STEINHART, FALCONER & MorRGENSTEIN

333 Market Street, 32nd Floor

San Francisco, California 94105

Counsel for Trans International

Airlines, Inc.

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTIONS PRESENTED FOR REVIEW

1) Whether under the Railway Labor Act, as

amended, 45 U.S.C. §151 et seq., a collective bargaining

agreement providing that the agreement will continue as

to part of a carrier’s operations, after it has otherwise ex-

pired and after Section 6 has been exhausted as to the

carrier’s other operations, may be enforced by injunction

compelling the Union to comply with its Section 2, First,

obligation to maintain its agreement for the stated term?

2) Whether, under the facts stated above, the Norris-

LaGuardia Act, 29 U.S.C. §101 et seq., precludes the federal

courts from enforcing by injunction a collective bargaining

agreement partially limiting strikes?

3) Whether, under the Railway Labor Act, unions

may be enjoined, under their Section 2, First, 45 U.S.C.

§152 First, duty to “make and maintain” agreements, from

compelling their members to engage in sympathy strikes

during mid-contract?

4) Whether this Court’s decision in Buffalo Forge

Co. v. United Steelworkers, 428 U.S. 397 (1976), decided

under the National Labor Relations Act, as amended, 29

U.S.C. §151 et seq. applies to sympathy strikes under the

Railway Labor Act?

5) Whether parties to a collective bargaining agree-

ment under the Railway Labor Act may contract to permit

compulsory, union-sanctioned strikes in mid-term of the

contract, despite the Act’s Section 2, First, requirement to

maintain contracts without strikes?

_TABLE OF CONTENTS

ESE EA ie TD ITE 2 I

a smslsnaoedtbocadeueienbanees III

I 2

REE AE SESS CCS ES EP ART ED 2

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a . caacosusesasuwianesessasinen 3

Reasons for Granting the Writ ........0.0....ccccececececoceeeceseees 7

I. The Court of Appeals Has Erred in Ruling

That a Clear Breach of a Binding Railway

Labor Act Strike Limitation Agreement May

Not Be Enforced by Injunction. The Court of

Appeals Has Thereby Decided a Federal Ques-

tion ina Way Which Conflicts With Applicable

Decisions of This Court and of the Court of

Memepmnia, Become Circuit nnn ccnscrscsccsessseceses 7

II. The Court of Appeals Refused to Recognize the

Statutory Limitations on Sympathy Strikes

Under the Railway Labor Act. This Raises an

Important Question of Federal Law Which Has

Not Been, but Should Be, Settled by This

SRS Seen ane ee a 14

EE RS ae Co Cn en 23

Appendix A—Opinion of the District Court ........0........... Al

Appendix B—Injunction Opinion of the District Court

di risicnsaocatensnpasinassnteinsboctiamsossionsieatesuscdsbabeses Al9

Appendix D—Opinion of the Court of Appeals & Mod-

lia idticetisthcsctesininicneeiscresinictescnliiabceincnsh A22

Appendix E—Opinion Denying Rehearing En Banc .... A83

Appendix F—Relevant Contractual No-Strike Provi-

RE ie hs diisitncicdinanctaaeon et A85

Appendix G—National Mediation Board Index to Cur-

i Be RE SR aL A88

TABLE OF AUTHORITIES

CASES

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

5 ge OS TSP IR aaa Poe Pees A ON bee Ae 19, 20

Brotherhood of Locomotive Engineers v. Baltimore &

Ohio R.R., 372 U.S. 264 (10GB). .ncccccccccsccsscanssescosesoescose 12

Brotherhood of R.R. Trainmen v. Chicago River &

Indiana R.R., 353 U.S. 30 (1957) ooo 16, 18, 19, 21

Brotherhood of R.R. Trainmen v. Jacksonville Terminal

CO., SHS US. BOD (1GGD) oaceccsccececccacscsnccccoseccessseseons 8,11, 12, 16

Brotherhood of Ry. & Steamship Clerks v. Florida East

Coast Ry., 384 U.S. 288 (1966) ou.u.....ecceccesccccccsseececcecosees 21

Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397

CIPI deindtidiiienninaeesatiatcne Sonales 17, 18, 19, 20, 21

Chicago & North Western Ry. Co. v. United Transporta-

tion Union, 402 U.S. 570 (1971) ceeceeeeccccecccecseese 9, 11, 13, 16

Detroit & Toledo Shore Line R.R. v. United Transporta-

tion Union, 396 U.S. 142 (1969) oo. 7, 12, 17, 20, 21

International Association of Machinists v. Central Air-

SOG, BIS UWE. OUD CADGDY cosievissincdicsseedesccccsssn... 20

Long Island R.R. v. System Federation, 368 F.2d 50 (2d

Se ND snicbessirponiietibasachinibauniieataten Lidia hab 9

McMullans v. Kansas, Oklahoma & Gulf Ry., 229 F.2d

50 (10th Cir.), cert. denied 351 U.S. 918 (1956) 0.0.0... 11

O’Donnell v. Wien Air Alaska, Inc., 551 F.2d 1141 (9th

SE SPER Tcaiicisesniai ieee eo a a 16

Piedmont Aviation, Inc. v. Air Line Pilots Association,

Inter., 416 F.2d 633 (4th Cir. 1969) ou... ccsccceee 9,19

Ruby v. TACA International Airlines, 439 F.2d 1359

i Ha RENEE HOSS PLE SA ONT REO 16

Seaboard World Airlines, Inc. v. Transport Workers

Union, 425 F.2d 1086 (2d Cir. 1970), reaff’d on fur-

ther consideration 443 F.2d 437 (1971) ...... 9, 10, 11, 12, 19

Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962),

overruled by, Boys Markets, Inc. v. Retail Clerks

SPRUNG MFR. EEC RUTID vccccicicsnsnceccisascosvertibiceanisancocns 19

Southern Pacific Transportation Co. v. Brotherhood of

Ry., Airline & S.S. Clerks, 81 L.C. 13,113 (N.D.

Cal. 1975) (not officially reported) .........cceccccccsesee. 12,13

Texas & New Orleans R.R. v. Brotherhood of Ry. &

S.S. Clerks, 281 U.S. 548 (1930) on... ccccccccseeee Ae) OD

Trans International Airlines v. International Brother-

hood of Teamsters, 103 L.R.R.M. 2669 ..0.0.0000.....c.00-.. 10

STATUTES

Norris-LaGuardia Act, 29 U.S.C. §101 et seq. .............. 3, 6,18

Railway Labor Act, 45 U.S.C. §151 et seq. ooccecccceccceseese. 3, 4, 8

National Labor Relations Act, 29 U.S.C. §151 et seq. 16

I Sa 3

EG Se a

in the Supreme Court of the United States

October Term, 1980

TRANS INTERNATIONAL AIRLINES, INC.,

Petitioner,

vs.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA, AIRLINE DIVISION; TEAMSTERS LOCAL

2707; MARVIN G. GRISWOLD; TEAMSTERS LOCAL 732;

AND AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, AFL-CIO,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Trans International Airlines, Inc., respectfully petitions

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals, Ninth Circuit, in this

case.

OPINIONS BELOW

The District Court’s opinion granting the temporary in-

junction against strikes of military operations by flight at-

tendants is reprinted as Appendix A; this decision was not

officially reported, but is reported at 96 L.R.R.M. 2763.

The District Court’s opinion enjoining flight engineers and

pilots from sympathy strikes of military flights but refus-

ing to enjoin sympathy strikes of commercial flights is re-

printed as Appendix B; this decision is reported at 439

F.Supp. 184 and at 96 L.R.R.M. 2766. Appendix C is the

District Court’s unreported decision continuing the above

injunctions and rejecting an “unclean hands” charge.

The slip opinion of the United States Court of Appeals,

Ninth Circuit filed February 14, 1980, is annexed hereto as

Appendix D, This opinion was modified by subsequent

Orders dated March 14, 1980, and June 2, 1980, which are

also reprinted as Appendix D. The Court of Appeals’

Order denying rehearing en banc and making a further

modification of the main opinion is reprinted as Appendix

For convenience, the relevant contractual no-strike

and picket line clauses are annexed as Appendix F.

JURISDICTION

The initial decision of the Court of Appeals was filed

February 14, 1980, and was modified by subsequent Orders

dated March 14, 1980, and June 2, 1980 (Appendix D).

The Court of Appeals Order denying rehearing en banc

and further modifying the main opinion was issued June

27, 1980 (Appendix E).

The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. §1254(1).

STATUTES INVOLVED

Section 2, First, of the Railway Labor Act, 44 Stat.

577, as amended, 45 U.S.C. §152, First, provides:

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

and employees to exert every reasonable effort to

make and maintain agreements concerning 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 4(a) of the Norris-LaGuardia Act, 44 Stat.

70, 29 U.S.C. §104(a), provides in relevant part:

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 growing

out of any labor dispute to prohibit any person or

persons participating or interested in such dispute...

from doing, whether singly or in concert, any of the

following acts:

(a) Ceasing or refusing to perform any work

or to remain in any relation of employment... .

STATEMENT OF THE CASE

Trans International Airlines, Inc. (“TIA”) is one of

the nation’s largest supplemental air carriers.' Air car-

riers such as TIA provide substantial, necessary assistance

to the military forces of the United States, by supplement-

ing the military’s own flight operations in transporting

1. In 1979, TIA was renamed Transamerica Airlines, Inc.

military personnel and cargo around the world. It is com-

mon for such air carriers and the unions representing their

employees to contract to continue such military flight oper-

ations even when engaged in a strike against civilian flight

operations. A crucial issue in this case is whether such

limited strike agreements are to have any meaning.

When the present dispute arose, TIA had an agreement

with its Teamster flight attendants that explicitly provided

for the continuation of that agreement as to military flying,

even after they were freed by contract and by the Rail-

way Labor Act, as amended, 45 U.S.C. §151 et seq.,

(“RLA”) to strike TIA’s civilian flight operations.”

In February 1976, the International Brotherhood of

Teamsters Airline Division (“IBT”’) served TIA with a

“Section 6 notice,”* which triggered compulsory statutory

procedures for resolving disputes over changes in the flight

attendant agreement, pursuant to the RLA, 45 U.S.C.

§§155, 156. The contract expired as to civilian operations

on April 1, 1977. The flight attendants, in open breach

of their military flying agreement, then struck TIA’s mili-

tary operations as well as its commercial operations. In

addition, the Carrier’s Teamster-represented flight engi-

neers and the pilots, represented by the Air Line Pilots

2. The TIA-Teamster clause read:

Article XII. No Strike-No Lockout, Section D. The Union

further agrees that the Flight Attendants will continue to

perform all duties which are necessary to enable the Com-

pany to operate flights for or in support of traffic sponsored

by the Department of Defense of the United States of Amer-

ica, even though such Flight Attendants withdraw from com-

mercial 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... Appendix

3. 45 U.S.C. §156 requires that a party desiring to effect a

change of rates of pay, rules or working conditions must give to

the other party at least thirty (30) days advance written notice.

Association (“ALPA”), initiated sympathy strikes in sup-

port of the flight attendant strike. Neither the major

nor the minor dispute procedures of the RLA had been

exhausted at that time by the flight engineer and pilot

unions, both of which were then subject to binding agree-

ments with TIA.

Upon application by the Carrier, and pursuant to 28

U.S.C. §1331, the District Court granted preliminary in-

junctions against the flight attendants’ primary strike of

its military operations, and against the sympathy strikes

by the pilots and flight engineers against TIA’s military

operations. Referring to the flight attendants’ agreement

to continue military operations during strikes against com-

mercial flying, the District Court found:

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 .... Appendix A.

Because of the flight attendants’ explicit agreement

to continue military operations, the District Court enforced

the agreement by enjoining the flight attendants’ strike

against TIA’s military operations. That Court also en-

joined the flight engineers and pilots from engaging in

sympathy strikes against military flying, reasoning that

there could not be a legal sympathy strike in support

of an illegal primary strike. The District Court refused,

however, to enjoin the pilots’ and engineers’ sympathy

strikes of civilian operations. All parties appealed.

The Court of Appeals, Ninth Circuit, found that “the

flight attendants’ strike . . . violated the military no-strike

clause, and resort to minor dispute arbitration is not neces-

sary to reach this conclusion.” Appendix D. That

Court further held that “the clause was binding even

after exhaustion of those [major dispute] procedures

..” Id.* Neverthless, the Court of Appeals erroneously

ruled that an injunction to enforce that binding agreement

was prohibited by the Norris-LaGuardia Act, 29 U.S.C.

§104, because the major dispute procedures of the RLA

had been exhausted at the time of the Teamsters’ breach

of the agreement. The Court of Appeals thus refused

to allow equitable enforcement of an agreement they found

to be both legally binding and in the national interest.

As for the flight engineer and pilot sympathy strikes,

the Court of Appeals held that the picket line and no-

strike clauses of the IBT flight engineers’ and ALPA pilots’

agreements gave rise to “minor disputes” over whether

the unions were entitled to engage in sympathy strikes

in mid-contract. Because of these ambiguities, the federal

courts were found to have jurisdiction to enjoin the sym-

pathy strikes as to both military and commercial oper-

ations, pending resolution of the disputes by arbitration.

The Court of Appeals recognized the anomaly of its deci-

sion, which denies injunctive relief for a clear breach,

but grants such relief in an ambiguous case.

TIA now seeks review of the Court of Appeals’ denial

of injunctive relief to enforce the flight attendant strike

limitation agreement, and of the Court of Appeals’ ruling

that the sympathy strikes should be enjoined only pending

clarification of the contract language in arbitration, rather

than enjoined completely as mid-term strikes in violation

of the RLA. "

4. The Court of Appeals recognized that by the terms of the

military agreement, the only time it could be effective was after

exhaustion of the Section 6 dispute resolution procedures. Since

that agreement had vested, any negotiations directed at changing

that agreement or deleting it from the next contract would neces-

sarily refer to the period after exhaustion of the next agreement.

Se mwa

REASONS FOR GRANTING THE WRIT

The Court of Appeals Has Erred in Ruling That a

Clear Breach of a Binding Railway Labor Act Strike

Limitation Agreement May Not Be Enforced by In-

junction. The Court of Appeals Has Thereby Decided

a Federal Question in a Way Which Conflicts With Ap-

plicable Decisions of This Court and of the Court of

Appeals, Second Circuit.

A. In the early years of the RLA, this Court declared

“[T]he major purpose of Congress in passing the RLA

was ‘to provide a machinery to prevent strikes.’” Texas &

N.O. R.R. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548,

569 (1930). More recently the Court said: “(T]he Act’s

primary objective” is “the prevention of strikes.” Detroit

& Toledo Shore Line R.R. v. United Transportation Union,

396 U.S. 142, 154 (1969).

Considering the breadth and importance of the RLA’s

strike limitations, the Court of Appeals’ narrow construc-

tion of them is inappropriate. The latter Court found

that the flight attendants’ strike violated the military no-

strike agreement, and that resort to minor dispute arbitra-

tion was not necessary in order to reach that conclusion.

Appendix D. The Court of Appeals further held that

“as the parties intended, the clause was binding even

after exhaustion of those [major dispute] procedures, . . .”

Id. (Brackets added). Nevertheless, that Court saw no

theory upon which to make the strike enjoinable” as a

major dispute.” Id. TIA had contended, however, that

the flight attendants’ strike was without sufficient claim

of legal right to be within either the major or minor

dispute categories and should have been enjoined as a

violation of the Section 2, First, obligation to “maintain”

collective agreements during their terms. 45 U.S.C. §152,

First. In other words, the flight attendants’ unlawful

strike of TIA’s military operations was not a “minor”

dispute because it was not over the meaning or application

of the current agreement—the language was too plain for

that—and the strike was not a “major” dispute, which

would necessarily have involved the language to be used

in the next military no-strike agreement, if there was

to be one. Instead the flight attendants’ strike of TIA’s

military operations was a flagrant breach of a clearly

understood and clearly binding agreement, which had fully

vested and could not be redrawn during its term through

self-help, any more than the carrier could have rewritten

the terms of the wage provisions during that same period.

By striking in open disregard of the military flying

agreement, the Teamsters ignored what this Court has

described as the “heart of the Railway Labor Act”, Brother-

hood of R.R. Trainmen v. Jacksonville Terminal Co., 394

U.S. 369, 377-78 (1969), v.e., the duty imposed upon manage-

ment and labor by Section 2, First, of the RLA, 45 U.S.C.

§152, First:

To exert every reasonable effort to make and main-

tain 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 growing out of any

dispute between the carrier and the employees thereof.

Id. (Emphasis added).°

5. The military no-strike agreements between TIA and each

of its bargaining units of flight personnel are essential to TIA’s

operations, and such agreements by TIA and other carriers and

their respective employee groups are of crucial importance to

United States military programs worldwide.

(Continued on following page)

This Court has also held that the Section 2, First,

obligation of the RLA to make and maintain agreements

is enforceable by injunction, even where the formal pro-

cedures of the RLA have been exhausted. Chicago &

North Western Ry. Co. v. United Transportation Union,

402 U.S. 570 (1971). Where a union has not exerted every

reasonable effort to make and maintain an agreement,

a strike should be enjoined “until the union satisfies the

mandate of the Railway Labor Act.” Piedmont Aviation,

Inc. v. Air Line Pilots Association, 416 F.2d 633, 636 (4th

Cir. 1969). And a strike injunction should have issued

here, where the union’s conduct was “a flagrant violation

under the Act of the ‘duty of all carriers [and] their

. . employees to exert every reasonable effort to make

and maintain agreements.’ ”. Long Island R.R. v. System

Federation, 368 F.2d 50, 53 (2d Cir. 1966) (ellipses in

original).

B. The Court of Appeals’ decision also directly con-

flicts with the holding of the Court of Appeals, Second

Circuit, in Seaboard World Airlines, Inc. v, Transport

Workers Union, 425 F.2d 1086 (2d Cir. 1970), reaffirmed

on further consideration 443 F.2d 437 (1971). The dis-

puted agreement in Seaboard was signed in 1964 and ex-

plicitly stated that it would have a “permanent duration”

and could not be altered without the written consent of

both parties. It provided for a wage reopener on July 1,

1974, ten years after its execution. The umons attempted

Footnote continued—

In the fiscal year in which the strike arose, TIA was respon-

sible for 78.5% of the total Air Force Logair and Navy Quick-

Trans cargo transportation throughout the U.S. domestic military

system. Not only are TIA’s military cargo operations an integral

on of the military supply system within the continental United

stoppage affecting such a substantial amount of air transportation

for the U.S. military is a grave matter in terms of national se-

to serve a Section 6 opener in 1969 and struck in support

of that opener, contending that the “permanent duration”

was illegal or at least did not bar an opener five years

after the agreement was entered. The Court of Appeals,

Second Circuit, upheld the strike injunction, stating:

While there may be a question whether reopening

another matter is banned only for a reasonable time

beyond July 1, 1974 [when the wage opener was per-

mitted] or forever, it is too clear for argument that

the agreement forbids a reopener on security matters

in 1969 .. . 425 F.2d at 1090-91.

On remand, the district court found Seaboard’s per-

manent agreement legal and “granted Seaboard’s request

for a permanent injunction to enforce the clause of the

agreement which prohibited striking and picketing with

respect to the 1964 agreement.” Seaboard World Airlines,

Inc. v. Transport Workers Union, 443 F.2d 437, 438 (2d

Cir. 1971). In the second appeal, the Court of Appeals

held that under the RLA, parties may “bind themselves

against reopening for a period reasonable under the par-

ticular circumstances at issue.” Id. at 439.

In the present case, TIA likewise sought to enjoin a

violation of the Section 2, First, duty to maintain agree-

ments. The dissenting Judge in Trans International Air-

lines v. International Brotherhood of Teamsters, 103

L.R.R.M. 2669, 2682, decided correctly that the analogies

between these cases rendered Seaboard “dispositive”:

In each setting, the relevant contract provision was

intended to block the union from pursuing its griev-

ances by means of economic pressure on the employer

. . . 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 inappli-

cable; Norris-LaGuardia’s restriction on injunctive re-

lief provided the union’s fallback position .... 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

these terms are so clear as not to require the man-

datory arbitration of the Act... . 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

dispute . . . and an injunction in support of a judicial

determination that an anti-strike provision is not only

clear, but also valid and binding under the Act. 103

L.R.R.M. at 2682-93.

The majority of the Court of Appeals, Ninth Circuit,

interpreted the purposes of Section 2, First, of the RLA

too narrowly. The RLA is remedial and should be broadly

construed to accomplish its purposes, Texas & N.O. R.R.

v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548 ( 1930) ;

McMullans v. Kansas, Oklahoma & Gulf Ry., 229 F.2d

50 (10th Cir.), cert. denied, 351 U.S. 918 (1956). Al-

though the Act prescribes mandatory procedures prior to

resorting to any self-help, Brotherhood of R.R. T'rainmen

v. Jacksonville Terminal Co., 394 US. 369, 378 (1969),

these statutory procedures merely represent the minimum

effort a party must exercise. Even when the major dis-

pute procedures of Sections 5 and 6 have been exhausted,

a union can be enjoined from striking if a federal court

finds that the union has not made every reasonable effort

to come to agreement. Chicago & North Western Ry. Co. v.

United Transportation Union, 402 U.S. 570 (1971) (empha-

sis added).

Nothing in the statute prohibits the parties either

from limiting either the issues over which the parties

may strike, Seaboard World Airlines, supra, or the weapons

at their disposal after these steps are exhausted. For

— s

instance, parties subject to the RLA contract away com-

pletely their right to strike in major disputes by agreeing

to use binding interest arbitration, instead of self-help

when a bargaining impasse occurs. Section 2, First, of

the RLA would apply to such an “interest arbitration”

agreement. At the time of an arbitrator’s decision as to

the terms of a new agreement, the no-strike prohibitions

of the RLA should attach to the new agreement for its

term. Thus, the parties’ contractual agreements are en-

forced by the Section 2, First, requirement that the parties

honor those contracts to avoid strikes. Just as the parties

may contract away their right to resort to self-help in a

major dispute through enforcement of binding “interest”

arbitration agreements, they should also be able to agree

to a less-than-total, contractual prohibition on self-help,

which is enforceable in equity. See, Southern Pacific

Transp. Co. v. Brotherhood of Ry., Airline & S.S. Clerks,

81 L.C. 113,113 (N.D. Cal. 1975) (not officially reported).

Indeed, such contractual limits are entirely consistent with

the public interest and with the overall legislative intent

of the RLA to minimize interruptions of interstate com-

merce by limiting or eliminating strikes. Detroit & Toledo

Shore Line R.R. v. United Transportation Union, 396 U.S.

142, 148 (1969).

While parties are generally free to use any legal eco-

nomic weapons at their disposal after exhausting the major

dispute procedures, Brotherhood of Locomotive Engineers

v. Baltimore & Ohio Railroad, 372 US. 284, 291 (1963),

they can be prohibited from using self-help where this

would conflict with federal law. Brotherhood of R.R.

Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 392

(1969). As in Seaboard, the Union’s use of economic

power here directly conflicts with its Section 2, First,

obligation under the RLA. And the terms of the agree-

ment are plain. The parties agreed to limit strikes for

siden 13

their mutual self-interests. TIA had military contracts

which would benefit the employees with wages, the em-

ployer with revenues, and both parties with continued

military business. The parties, in effect, agreed that lim-

ited warfare was preferable to global, nuclear warfare.

A railway case, Southern Pacific Transp. Co. v. Broth-

erhood of Ry. Airline & S.S. Clerks, 81 L.C. 13,113 (N.D.

Cal. 1975) (not officially reported), provides a further

analogy. There, the district court enjoined a strike in

violation of a union’s no-strike commitment on the dual

bases that the legality of the strike was “an arbitrable

minor dispute,” 81 L.C. at 24,384, and that the strike

violated the Section 2, First, “duty to exert every reason-

able effort to ‘maintain agreements’.” 81 L.C. at 124,385.

With respect to the Section 2, First, violation, the

district court held:

This court has jurisdiction to enjoin a strike if it

violates defendants’ duty to exert every reasonable

effort to maintain agreements. (45 U.S.C. 152, First).

Such an injunction, to compel compliance with the

Railway Labor Act, is not prohibited by the Norris-

LaGuardia Act and must issue even though the strike

involves an admitted major dispute. Chicago & North-

western Ry. Co. v. United Transportation Union, 402

U.S. 570 (1971).

Assuming a solely major dispute characterization, this

court would then have the duty to determine whether

or not the strike violates defendants’ duty, under

Section 2, First of the Act, to ‘maintain agreements.’

Based upon all the evidence, it appears that a strike

over the work rules demands is prohibited by the

moratorium in Article XI, Section 3(e) of the national

agreement and accordingly violates defendants’ stat-

utory duty to ‘maintain agreements.’ The strike should

be enjoined to compel defendants to comply with their

statutory duty by honoring and ‘maintaining’ their no-

strike commitment in the 1975 national agreement.

81 L.C. at 24,385 (emphasis added).

In view of the legislative history of the RLA and

the pertinent judicial constructions of Section 2, First, the

Court of Appeals in the present case erroneously concluded

that the Teamsters’ strike of TIA’s military operations,

while unlawful, was not enjoinable. The Teamster flight

attendants had bound themselves by contract and, conse-

quently, by operation of law—the RLA—not to strike TIA’s

military operations during the life of their military no-

strike agreement, even after expiration of their basic agree-

ment. The military no-strike commitment is a collective

bargaining agreement, which, by its express terms, re-

mains in force and prohibits any flight attendant work

stoppage directed at military operations. The Teamster

efforts to disregard their military no-strike commitment

directly violates their Section 2, First statutory duty to

make and maintain agreements.

II.

The Court of Appeals Refused to Recognize the Stat-

utory Limitations on Sympathy Strikes Under the Rail-

way Labor Act. This Raises an Important Question

of Federal Law Which Has Not Been, but Should Be,

Settled by This Court.

This Court should review the issue of whether sym-

pathy strikes are prohibited by the RLA. Failure to re-

solve this important issue threatens to undermine the

Act’s effectiveness, to disrupt interstate commerce, and

to jeopardize important legal rights of thousands of rail

and air carriers and employees. The issue arises repeat-

edly, but because of the limited duration of many strikes,

tends to escape review.

Judicial condonation of sympathy strikes would create

a new and powerful weapon for a small group of organized

employees involved in a dispute with a carrier, giving them

the ability to initiate major disruptions to transportation,

and to extend the effective disruptive power of larger

groups of employees to periods beyond those contemplated

by Congress in enacting the RLA. As Appendix G illus-

trates, each airline deals with a number of different unions

representing as many as twenty-five different groups of

employees. A primary strike is always disruptive, but

the degree of disruption depends on the number and type

of employees involved. For example, on American Air-

lines, just thirty-nine meteorologists represented by the

Transport Workers Union (“‘TWU”) could cause a com-

plete shutdown of the carrier’s activity by inducing a sym-

pathy strike among the eight other represented employee

groups, even though the carrier had binding agreements

with representatives of those other groups.

The same disruptive power would be given to the

eleven Nurses and fourteen Technical Instructors repre-

sented by the Teamsters on Eastern Airlines; the thirteen

Hostess Fashion Shop Employees represented by the Inter-

national Association of Machinists (“IAM”) on Braniff:

the seventy-one Anchorage, Alaska Flight Kitchen Em-

ployees represented by the IAM on Northwest Airlines;

and even to the ten Flight Specialists/Balloon Watchers

represented by the International Brotherhood of Electrical

Workers (“IBEW”) on Pan American. In each of these

examples, a small group of employees is covered by a

separate labor agreement, even though the same union

may also represent thousands of other employees in major

—————V—V—eeOO

classifications on the same carrier. Such a result sanctions

the spread of strikes, which increases dramatically the

number of employees involved, and their economic effect,

contrary to the expressed RLA purpose of minimizing

strikes.

The RLA sets forth a comprehensive scheme to curtail

drastically the situations in which strikes, and interrup-

tions to commerce caused thereby, may legally occur.

Strikes over grievances arising out of disputes over inter-

pretation of existing agreements - “minor disputes” in -

RLA parlance - are totally prohibited. The Act compels

arbitration and any strike is therefore enjoinable as a

violation of the Act. Brotherhood of R.R. Trainmen v.

Chicago River & Indiana R.R., 353 U.S. 30 (1957). Strikes

over demands for higher wages and additional rights in

new or renewal contracts - ‘‘major disputes” in RLA par-

lance - are prohibited until the parties have completed

the multistep procedures required by Section 6 of the

RLA, 45 U.S.C, §156. Chicago & North Western Ry. Co. v.

United Transportation Union, 402 U.S. 570 ( 1971). These

procedures are designed to require extended bargaining,

frequently far beyond the stated termination date of the

contract, in an effort to increase the chances of an agree-

ment without a strike. Detroit & Toledo Shore Line R.R.

, v. United Transportation Union, 396 U.S. 142 (1969);

Brotherhood of R.R. Trainmen v. Jacksonville Terminal

Co., 394 U.S. 369 (1969). A major dispute strike prior

to exhausting the Section 6 procedures will be enjoined

by the federal courts. O’Donnell v. Wien Air Alaska,

Inc., 551 F.2d 1141 (9th Cir. 1977); Ruby v. TACA Inter-

national Airlines, 439 F.2d 1359 (5th Cir. 1971).

The principal mistake of the courts below stems from

their failure to recognize the extent of the differences

between the RLA and the NLRA. The NLRA specifically

provides that:

Nothing in [the NLRA], except as specifically pro-

vided for herein, shall be construed so as either to

interfere with or impede or diminish in any way the

right to strike... 29 U.S.C. §163 (Right to strike

preserved ).

Strikes over the meaning of agreements are lawful unless

the parties have contracted not to strike; similarly arbi-

tration is not mandatory unless the parties contract to

make it so.

The RLA, on the contrary, contains no right-to-strike

provision; in fact, this Court has long held that

the major purpose of Congress in passing the Railway

Labor Act was ‘to provide a machinery to prevent

strikes.’ Detroit & Toledo Shore Line R.R., supra,

quoting Texas & New Orleans R.R. v. BRC, 281 U.S.

548, 565 (1930).

Under the RLA, disputes over the meaning or application

of agreements (so-called “minor disputes”) must be sub-

mitted to binding arbitration, and strikes over such dis-

putes are prohibited by the RLA. Moreover, strikes over

the terms of a new agreement are also prohibited by the

RLA, even after expiration of the contract, until the

carrier and union have exhausted the dispute resolution

processes of the Act.

The fundamental difference between the two Acts,

regarding their basic attitude toward strikes and their

different relationships to the Norris-LaGuardia Act, is

reflected in this Court’s historically dissimilar treatment

of strike injunction cases arising under the two Acts.

Much of the confusion stems from the lower courts’ mis-

application of Buffalo Forge Co. v. United Steelworkers,

423 U.S. 397 (1976), an NLRA case. The structure of the

RLA and the entirely different evolution of strike injunc-

tions under the RLA demonstrate the inapplicability of

Buffalo Forge to RLA cases.

The landmark RLA case in the area is Brotherhood of

R.R. Trainmen v, Chicago River & Indiana R.R., 353 U.S.

30 (1957). In Chicago River, the Court was faced with the

question of whether a district court could enjoin a strike

over a minor dispute. A unanimous Court held that

the District Court has jirisdiction and power to issue

necessary injunctive orders [to enforce compliance

with the requirements of the Railway Labor Act] not-

withstanding the provisions of the Norris-LaGuardia

Act.

Id, at 42 (brackets in original), quoting Brotherhood of

R.R. Trainmen v. Howard, 343 U.S. 768, 774 (1952). In

holding that a union could be enjoined from striking over

a dispute justiciable by an adjustment board, the Court

looked to legislative history to determine that the purposes

of the RLA should not be impaired by the earlier and

more general Norris-LaGuardia Act. The Court also stated

that:

The relationship of labor and management in the rail-

road industry has developed on a pattern different from

other industries. The fundamental premises and prin-

ciples of the Railway Labor Act are not the same as

those which form the basis of the National Labor Re-

lations Act .... 353 U.S. at 31, n. 2.

In 1962, the Court considered the principal issue of

Chicago River—that is, whether a federal district court

could preserve an arbitrator’s jurisdiction over an arbitrable

under the NLRA. The Court held that, when such a dis-

pute arose under the NLRA rather than the RLA, the

Norris-LaGuardia Act would destroy federal injunctive

jurisdiction. The Court explicitly distinguished its deci-

sion from Chicago River, on the ground that Chicago River

expressly recognized and rested . . . upon the differ-

ences between provisions for the settlement of disputes

uncer the Railway Labor Act and the Taft-Hartley

Act.

Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 211, n.

30 (1962), overruled by, Boys Markets, Inc. v. Retail Clerks’

Union, 398 U.S. 235 (1970).

Although these two lines of cases lost their diametrical

opposition in 1970, when Sinclair Refining was overruled

by Boys Markets, supra, the distinction between them

remained intact. The holding in Boys Markets was “a

narrow one”, 398 U.S, at 253, and is severely constrained

in a number of ways that the holding in Chicago River

was not. 398 U.S. at 254. Cf. Seaboard World Airlines v.

Transportation Workers Union, 425 F.2d 1086, 1092 (2d

Cir. 1970), reaff’d on further consideration 443 F.2d 437

(1971); Piedmont Aviation, Inc. v. Air Line Pilots Associa-

tion, Inter., 416 F.2d 633, 638 (4th Cir. 1969) (several tra-

ditional pre-conditions to equitable relief will be less

stringently scrutinized in a RLA case).

When the Court decided Buffalo Forge in 1976 (a 5-4

decision), it announced a limitation of its holding in Boys

Markets. It did not announce, imply, or even consider a

limitation on the RLA injunctions that the unanimous

Court approved in Chicago River.

Buffalo Forge thus, by its own terms, does not apply

to a situation when the threat to public policy posed by

a sympathy strike involves more than a breach of private

contract. A strike by RLA employees is just such a situa-

tion. The motivating force of the Act is the public interest

in preventing disruption of air and rail service. This in-

terest is served both by the direct operation of the statute

and by the statutory imprimatur afforded to collective

bargaining under the Act. International Association of

Machinists v. Central Airlines, 372 U.S. 682, 683 (1963).

Buffalo Forge limited the applicability of the Norris-

LaGuardia exception created in Boys Markets to situa-

tions where the underlying dispute was subject to arbitra-

tion. It did not limit injunctions under the RLA, because

injunctions under the RLA were not created by Boys

Markets. Injunctions under the RLA are founded on the

statute itself. See 398 U.S. at 251-52.

Under the RLA a party must maintain the status quo

until given the right to change it through agreement or

after exhaustion of major dispute procedures, when the

parties are released to self-help. If the employees assert

a right to do something different—whether to work in

a different job, to come to work at a different time, to

eat their lunch an hour later, or to withhold their services

in support of another union—they must establish their

right to change their working conditions in a system

board arbitration (or in contract negotiations) before they

effect the change. Neither the carrier nor the employees

can unilaterally impose a change on the other party.

In this case the unions made no pretext of having

attempted to exhaust any of the dispute resolution pro-

cedures required under the Act. They simply walked

off the job. The labor strife attendant on their unilateral

action, and the resulting disruption of air travel to the

public, are exactly what the RLA was designed to prevent.

Detroit & Toledo Shore Line R.R. v. United Transportation

Union, 396 U.S. 142 (1969).

TIA acknowledges that if unions are in fact required

to exhaust Section 6 procedures before altering their own

working conditions, this effectively means that sympathy

strikes by other employee groups against their common

employer are not permissible under the RLA, at least

absent contractual waiver by the employer. But TIA

believes this is in accord with the express RLA policy

‘‘to settle all disputes” before the “purposefully long and

drawn-out” Section 6 procedures are exhausted. 45 U.S.C.

152, First; Detroit & Toledo Shore Line R.R. v. United

Transportation Union, 396 U.S. 142 (1969); Brotherhood

of Ry. & Steamship Clerks v. Florida East Coast Ry.,

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

This conclusion is inescapable in light of the essential

Congressional purpose of the RLA to prevent interruptions

of transportation. Employees are entirely prevented from

striking over grievances or economic demands until they

have participated in purposefully drawn out conferences,

negotiations, mediation and possibly arbitration, all de-

signed to lead to an agreement which will prevent inter-

ruption of commerce. It is inconceivable, therefore, that

these same employees could nevertheless immediately

strike, in violation of the no-strike provisions of their

agreement, simply because they have “sympathy” for the

economic demands of other employees. Such a conclusion

is contrary to the basic purpose of the RLA to minimize

all strikes and disruptions of transportation. Brotherhood

of R.R. Trainmen v. Chicago River & Indiana R.R., 353

U.S. 30 (1957). Moreover, it would enable a very small

group of organized employees involved in a dispute with

the carrier to initiate major, disastrous disruptions to

interstate commerce for indefinite periods of time. This

result is totally incongruous with the clear intent of the

RLA.

To the extent that the unions claim that the con-

tractual picket line clauses waive this statutory prohibi-

tion and that those clauses must be construed and applied

by System Board arbitration, the no-strike injunction

should, nevertheless have been granted. Although to a

certain extent this prejudges the issue, the difference in

statutory schemes justifies this different result. Under

the NLRA and Buffalo Forge, the union has a statutory

right to strike until the arbitrator decides it has been

waived. The Court must honor the statutory scheme and

not prejudge the contractual dispute. Under RLA, on

the contrary, the unions have no statutory right to strike

except to the extent the employer legally may waive and

has by contract waived the statutory prohibition of strikes.

The unions contend that sympathy strikes are a gigan-

tic loophole in the RLA’s policy of prohibiting all mid-

contract strikes. They claim that while engineers and

pilots may not strike during their respective contracts

for their own grievances or for additional contract rights,

the engineers and pilots may strike any time they wish

to support grievance or contract claims of others. In view

of the RLA’s emphasis on strike prevention and avoidance,

such an anomalous exception to the statutory scheme

should not be inferred.

We respectfully submit that this case warrants review

by this Court.

CONCLUSION

For the foregoing reasons, a writ of certiorari should

be granted.

Respectfully submitted,

RoBErRT J. BERGHEL

CHARLES KELSO

Rospert W. ASHMORE

FISHER & PHILLIPS

3500 First National Bank Tower

Atlanta, Georgia 30383

RosBert T’. FRIES

STEINHART, FALCONER & MorGENSTEIN

333 Market Street, 32nd Floor

San Francisco, California 94105

Counsel for Petitioner

Al.

APPENDIX

APPENDIX A

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF CALIFORNIA

No. C-77-2010 RFP

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff,

Vv.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF

AMERICA, AIRLINE DIVISION: TEAMSTERS LOCAL

2707, AIRLINE, AEROSPACE AND ALLIED EMPLOY-

EES, affiliated with INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, 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. (Saturn),

on November 30, 1976. At present, all of the flight at-

tendants employed by TIA are represented by the defen-

dant International Brotherhood of Teamsters (Teamsters)

under a collective-bargaining agreement effective July 21,

1974. In February, 1976, the Teamsters served a notice

of intent to amend the agreement under the terms of

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

began. The agreement expired by its terms on April 1,

1976, but continued in effect while the parties exhausted

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 bargaining agree-

ments of the merging corporations. For present purposes,

the importance of the LPP’s lies in their requirement

that disputes concerning the rearrangement of employees

upon merger, including disputes as to the seniority rights

of the merged employees, must be submitted to binding

arbitration. TIA asserts that since some seniority issues

arising out of the merger have not yet been resolved,

under the terms of the LPP’s these issues must be sub-

mitted to arbitration; and consequently the Teamsters have

no right to strike over them. The problem with this argu-

ment is that this strike has almost nothing to do with

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

agreement between TIA and the Teamsters is with regard

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

issues are regulated exclusively by the RLA, and the LPP’s

of the CAB order cannot apply to these issues which are

wholly separate from the merger. It would be unreason-

able to hold that just because some of the open issues

in the negotiations for a new contract are merger-velated,

the union has waived its right to strike over any issue

even though the mandatory procedures of the RLA have

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

help ease the integration of two labor forces following

a merger. Nothing in this purpose requires such a drastic

curtailment of rights under the RLA.

TIA’s second contention is that the Teamsters are not

free to strike because they have not complied with the

requirements of Section 2 First of the RLA, which requires

all carriers and employees “‘to exert every reasonable effort

to make and maintain agreements concerning rates of pay,

rules, and working conditions . . .” This argument is

based upon the Supreme Court’s decision in Chicago &

N.W. Ry. Co. v. United Transportation Union, 402 US.

570 (1971). That case held that Section 2 First is more

than just a statement of policy, rather it imposes a judi-

cially enforceable obligation to. do more than just go

through the motions of complying with the mandatory

procedures of the RLA with no intention of reaching an

agreement. TIA has introduced a substantial amount of

evidence, including several affidavits, in its aitempt 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 contain-

ing over 200 proposed changes. TIA argues that this in-

crease in the outstanding issues is strongly indicative that

the Teamsters were not exerting a “reasonable effort to

make . .:. agreements.” However, it is undisputed that

for several months in late 1976, there was little active

negotiation taking place between the parties because of

the difficulties and uncertainties of consummating the pro-

posed Saturn-TIA merger. In fact, negotiations did not

get underway again in earnest until approximately the

time the Teamsters introduced their new proposal. The

testimony heard by the court on this matter indicates

that what the Teamsters were trying to do with the intro-

duction of their March, 1977, proposal was to integrate

the old Saturn and old TIA agreements, taking the best

from both. Since the carriers were newly merged and

the Teamsters were now representing a larger group of

flight attendants, it hardly seems unreasonable for them

to modify their previous proposal substantially to meet

the new conditions.

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 Teamster pro-

posal that was on the table at the beginning of September,

1977, demanded wages, benefits, and working conditions

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

flight attendants’ payroll (based on figures reported on

IRS form W-2). TIA argues that this represents approxi-

mately three times TIA’s total profits for fiscal year 1976,

indicating almost per se that the Teamsters have not made

a reasonable effort to reach an agreement. The union

disputes these figures, particularly the estimated 294%

cost increase of its proposal, but the court finds it unneces-

sary to the resolution of this question to determine the

actual figures.

TIA is effectively asking the court to hold that the

sheer size of the Teamsters’ economic demands, and the

distance between the parties after a long period of negotia-

tions, 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 National

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 interference

with the substantive terms of collective-bargaining

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 sis 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 simply

hard bargaining rather than a conscious attempt by either

side to avoid reaching an agreement. As the Southern

District of New York concluded in a decision closely exam-

ining 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. Broth-

erhood 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 agreement

between the parties specifically provides as part of the

No Strike-No Lockout provisions that:

The Union further agrees that the Flight Attendants

will continue to perform all duties which are necessary

to enable the Company to operate flights for or in

support of traffic sponsored by the Department of

Defense of the United States of America, even though

Flight Attendants withdraw from commercial airline

service because of a dispute arising out of negotiations

for a new contract after the expiration date of this

Agreement and/or during and after all procedures

of the Railway Labor Act have been exhausted... .

[Art. XII, Sec. D.]

The clear import of 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 Team-

sters do not dispute the meaning of this provision, but

argue that it is no longer in effect. During the negotia-

tions, 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 procedures

of the RLA and is no longer of any effect once the cooling-

off period has ended. This argument might be correct

with respect to the other clauses in the 1974 colléctive-

bargaining agreement that are being renegotiated, but it

totally ignores the specific language of this provision. This

military no-strike clause could not be clearer in expressing

its intent that the flight attendants thereby give up their

right to strike TIA’s military flights even during those

periods when they might strike all of TIA’s other oper-

ations. This clearly expressed intent must prevail over

any general rule that contract language which is being

renegotiated is no longer effective following the 30-day

cooling-off period.

Accordingly, it is hereby ORDERED that the defen-

dant 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 Department

of Defense. In all other respects, the plaintiff's motion for

a preliminary injunction with respect to TIA’s flight at-

tendants is denied.

It has come to the attention of the court that some

TIA flight attendants working on military flights pursuant

to the Temporary Restraining Order issued by this court

on September 8, 1977, may have been stranded by TIA in

cities away from their homes. Such treatment of TIA

flight attendants violates in several respects the provisions

of the parties’ July 21, 1974, collective-bargaining agree-

ment. 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 attendants’ strike if proven.

The strandings are alleged to be designed to coerce in-

dividual flight attendants to break their legal strike against

TIA’s commercial tiights. Therefore, 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 attendants away from their home base

in connection with the operation of any military flights

during the remainder of this strike.

IT IS SO ORDERED.

Dated: September 26, 1977

/s/ Robert F. Peckham

United States District Judge

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, AIRLINE DIVISION ; TEAMSTER LOCAL 2707;

MARVIN G. GRISWOLD; TEAMSTER LOCAL 732; AIR-

LINE PILOTS ASSOCIATION, INTERNATIONAL,

Defendants.

MEMORANDUM AND ORDER RE FLIGHT

ENGINEERS AND PILOTS

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

enjoin sympathy strikes under the Railway Labor Act

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

(TIA), is a supplemental air carrier, and is the surviving

corporation of the merger of Saturn Airways, Inc. (Saturn)

and TIA on November 30, 1976. All of the flight engineers

presently employed by TIA are represented by defendant

International Brotherhood of Teamsters (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 gov-

erned by an agreement that went into effect J uly 21, 1974,

while flight engineers formerly employed by Saturn came

under an agreement effective November 17, 1974.

Al0

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

TIA pilots were represented by the Teamsters and they

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

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

Airline Pilots Association (ALPA), and they are governed

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

all of TIA’s pilots have been represented by ALPA. All

three of these collective-bargaining agreements are still in

force, although they have been subsquently 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 support 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 memorandum and

order of September 26, 1977, case No. C-77-2010 RFP.

Prior to the commencement of the strike, on September

7, 1977, this court issued a temporary restraining order

prohibiting all flight engineers from refusing to cross any

picket lines. The next day, September 8, that order was

substantially modified to restrain only former Saturn flight

engineers and flight engineers working on TIA’s military

flights from honoring any picket lines. After listening

to further argument on this matter at a hearing held

on September 15, 1977, the court must now decide whether

a preliminary injunction should issue. At the same time,

the court also has before it TIA’s application for a tempo-

rary restraining order to halt a sympathy strike by TIA

pilots.

Whether or not these four groups of TIA employees

have the right to engage in a sympathy strike must be

determined by the terms of the applicable collective-bar-

gaining agreement. The three agreements contain a vari-

All

ety of relevant language—general no-strike pledges, picket

line clauses, and military no-strike provisions.’ All parties

agree that any dispute over the proper construction 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-bargain-

1, PRE-MERGER TIA FLIGHT ENGINEERS AND PILOTS

(Agreement of July 21, 1974)

“SECTION 21

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

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

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

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

that the 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 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 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

Oul any employees covered by this Agreement and the Union

and its members, individually and collectively, agree that they

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

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

(Continued on following page)

Al2

ing agreements. As to ali three agreements, TIA disagrees

with the unions’ reading of the agreements, and wishes

to take the dispute to arbitration. Central to TIA’s claim

for relief is its assertion that the Supreme Court’s decision

in Brotherhood of Railroad Trainmen v. Chicago River

& I.R. Co., 353 U.S. 30 (1957), requiwes this court to

enjoin any actions by the unions which would alter the

status quo pending arbitration of this minor dispute. A

brief look at the historical 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-

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

Footnote continued—

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-

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 mili-

tary personnel.”

Al3.

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 rein-

statement. 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 industry,” where

a strike meant disruption and economic injury to a great

many people. Therefore, Congress saw fit to ban outright

strikes within the industry over individual grievances. Al-

though the Court spoke in general terms, using the statu-

tory 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 action, including sympathy strikes,

where any minor dispute has been found to exist. Hughes

Air Corp. v. 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).

The analogous situation under the National Labor Re-

lations Act, on the other hand, was originally resolved

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

2. This can be most clearly seen in the court’s characteriza-

tion of minor disputes as “controversies over the meaning of an

existing collective-bargaining agreement in a particular fact

Situation, generally involving only one employee.” 353 U.S. at 33.

3. In 1974, this court issued a temporary restraining order

in a sympathy strike situation similar to the one in this case

and involving some of the same parties. Saturn Airways, Inc. v.

International 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.

Al4

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

expressly agreed to arbitrate could not be enjoined 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 Re-

fining and stated in broad language that a no-strike ciause

could be enforced by a federal court injunction pending

arbitration under a broad arbitration clause. Boys Mar-

kets, like Chicago River before it, was thereafter applied

automatically by most federal courts. If a broad arbitra-

tion clause was accompanied by a no-strike pledge and

the dispute was arguably arbitrable, an injunction would

almost invariably issue, even against sympathy strikes.

NAPA Pittsburgh, Inc. v. Automotive Chauffeurs, 502 F2d

321 (3d Cir. 1974) (en banc); Island Creek Coal Co. v.

Mine Workers, 507 F.2d 650 (3d 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 1372 (5th Cir. 1972).

This mechanical approach was recently rejected out-

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

workers, 428 U.S. 397 (1976). Buffalo Forge explained

that Boys Markets established only a narrow exception

to the general prohibition of the Norris-LaGuardia Act.

In the case of sympathy strikes, where the underlying

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

held that Norris-LaGuardia still prohibits the issuance of

an injunction to halt the strike. There are compelling

reasons for reaching this result. If the employer can obtain

an injunction just by raising an arbitrable issue of contract

interpretation, then sympathy strikes could be enjoined

in every case pending arbitration. It is almost always

possible to dispute in good faith the meaning of even

Al5

the clearest contract language intended 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 support 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 NLRA,

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 the 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.

Al6

The result reached here does not conflict with the

policies underlying the RLA and the Chicago River de-

cision. The RLA provides for the mandatory arbitration of

minor disputes, and Chicago River permits an injunction

pending their arbitration, in order to minimize interrup-

tions in the operation of the vital industries covered by

the RLA. However, the RLA does permit strikes in “major

disputes,” disputes stemming from the bargaining over

a new contract. The primary strike by the flight atten-

dants 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 disrupted

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 stop-

page, but there is by definition already an underlying

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 reasons 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

Al7

all other flights. These special provisions are required

by the terms of the Department of DefesSeeontracts 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 union can generate

a minor dispute requiring arbitration over the meaning

of these clauses, no injunction should issue pending arbi-

tration. This would pervert Buffalo Forge, for the em-

ployer would then lose the kenefit of its bargain that

military flights would continue during a strike. Further-

more, since the flight attendants have a similar clause

in their agreement and accordingly have been enjoined

from extending their strike to military flights, any sym-

pathy strike of military flights would do more than just

supplement a preexisting work stoppage. 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 mini-

mum, and the court thus does not feel that an extension

of Buffalo Forge to the situation 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 defen-

dant International Brotherhood of Teamsters, as represen-

tative for all of TIA’s present flight engineers, their of-

ficers, agents, representatives, members, servants, employ-

ees, 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

Al8

of picket lines with respect to military flights under the

military no-strike clauses of the applicable collective-bar-

gaining agreements. Plaintiff TIA’s motion for prelim-

inary injunction with respect to its flight engineers is

hereby denied in all other respects.

Furthermore, it is hereby ORDERED that defendant

Airline Pilots Association, as representative for all of TIA’s

present pilots, their officers, agents, representatives, mem-

bers, servants, employees, and any and all persons acting

in concert with them, are hereby restrained from authoriz-

ing, 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 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

Alg.

APPENDIX C

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 Loca, 2707; Marvin G.

GRISWOLD; TEAMSTER LOCAL 732; AIRLINE PILOTS As-

SOCIATION, INTERNATIONAL,

Defendants.

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 pre-

liminary 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

regarding TIA’s varied and extensive efforts to continue

its operations 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 of countering the impact of a

strike, are so inequitable as to require the denial of

A20

injunctive relief. These parties are engaged in a hard

fought labor dispute that unfortunately has resulted in a

test of their relative economic strength. In such a situa-

tion, 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 addi-

tional matter which has come to its attention during these

proceedings. The testimony of Mr. Arthur Perkel of the

Military Airlift Command (MAC) makes it clear that,

without specifically intending to do so, the administration

of MAC expansion business? will almost inevitably tend

to strengthen the economic position of a struck airline,

such as TIA, as against its striking employees. The num-

ber of airplanes freed by a strike against the airline’s

commercial flights allows the airline to seek and obtain

a greater proportion of the available MAC expansion busi-

ness. Furthermore, this effect can be greatly magnified

if the cooperation of other airlines with MAC contracts

can be obtained, as may have been the situation in this

case. Although this effect troubles the court in granting

this injunction, we do not feel that this matter is one

for judicial resolution. Rather, such matters should be

taken up with the proper parties within the executive

branch, such as the Secretary of Defense and the Secre-

tary of the Air Force.

Therefore, it is hereby ORDERED that plaintiff's mo-

tion for a preliminary injunction with regard to military

flights is granted, for the reasons stated herein and in

1. The court thus does not reach the underlying question

of whether an injunction otherwise permitted by the Norris-

La Guardia Act may be denied because of a party’s inequitable

behavior with regard to other facets of a labor dispute.

2. “MAC expansion business” refers to those military flights

over and above the fixed number of flights per month to which

each airline with a MAC contract is firmly committed.

A21

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 Septem-

ber 28, 1977.

Counsel for the plaintiff shall prepare a proposed form

of judgment. Rule 58, Fed. R. Civ. Pro.

Dated: October 26, 1977

/8/ Robert F. Peckham

United States District Judge

A22

APPENDIX D

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff-Cross-Appellant,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

etc., Airline Division Teamster Local 2707; Marvin G.

Griswold; Teamster Local 732, Defendants-Cross-Appellees.

TRANS INTERNATIONAL AIRLINES, INC.,

Plaintiff-Appellee/Cross Appellant,

Vv.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

et al., Airline Division, Teamsters Local 2707, and Air Line

Pilots Association, International, AFL-CIO, Defendants-

Appellants/Cross Appellees.

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

78-1148 and 78-1232.

United States Court of Appeals,

Ninth Circuit.

Feb. 14, 1980.

Supplemental air carrier and unions cross-appealed

from orders of the United States District Court for the

Northern District of California, Robert F. Peckham, Chief

Judge, granting a preliminary injunction prohibiting both

primary and sympathy strikes against the carrier to the

extent they were directed to military flights, but not en-

joining strikes against civilian flights. The Court of Ap-

peals, Kennedy, Circuit Judge, held that: (1) unions’

appeal was not mooted by the fact that the strikes were

settled and a new collective bargaining agreement signed,

since resolution of the issues presented was crucial to

A23

deciding a substantial pending claim for damages sought

by the carrier against the unions; (2) by reason of the

Norris-LaGuardia Act, district court lacked jurisdiction to

enjoin primary strike activity directed at carrier’s military

flights; once the major dispute mechanisms of the Railway

Labor Act had been exhausted, unions could not be en-

joined from using their full economic power in support

of their demands; that is, the contract provision by which

unions agreed not to strike military flights, even after

RLA dispute mechanisms had been exhausted, was not

enforceable by injunctive relief; and (3) district court

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

tirety, pending determination of the contractual rights of

the parties by adjustment board; that is, the carrier’s flight

engineers and pilots were required to resort to the minor

dispute mechanisms of the Railway Labor Act to have

their rights clarified before engaging in a sympathy strike

in support of striking flight attendants.

Affirmed in part, reversed in part, and remanded.

Wallace, Circuit Judge, dissented in part with opinion.

1. Federal Courts (Key) 724

Appeal by unions from order granting a preliminary

injunction against strike activity directed at plaintiff air

carrier’s military flights was not mooted by the fact that

the strikes were settled and a new collective bargaining

agreement signed, since resolution of the issues presented

was crucial to deciding a substantial pending claim for

damages sought by the carrier against the unions

2. Action (Key) 6

A challenged action is not moot when it was in duration

too short-to be fully litigated prior to its cessation or

expiration, and there is a reasonable expectation that the

A24

same complaining party would be subjected to the same

action again.

3. Federal Courts (Key) 757

Union’s bargaining conduct was an alternative ground,

in addition to collective bargaining agreement’s military

no-strike clause, for the injunction underlying contempt

order against union; for that reason alone, even apart from

the court’s reluctance to fragment the appeal into “live”

and “moot” issues, and the possibility that the dispute

was not moot under the “capable of repetition yet evading

review” standard, the union’s bargaining behavior was

part of the live case or controversy before the Court of

Appeals.

4. Labor Relations (Key) 967

Air carrier was not prevented from seeking injunctive

relief against alleged unlawful strike activity because of

its own conduct, notwithstanding union’s claim that the

carrier had “unclean hands”; the practices complained of

were not sufficiently likely to be found illegal or otherwise

wrongful that the carrier should be prevented from seeking

injunctive relief.

5. Labor Relations (Key) 179

Union, in the course of bargaining with air carrier,

did not violate its obligation under the Railway Labor

Act to exert every reasonable effort to make a collective

bargaining agreement; the assertedly exorbitant size of

union’s proposals regarding wages, benefits, and working

conditions did not demonstrate a refusal to make reasonable

efforts to reach an agreement. Railway Labor Act, § 2,

45 U.S.C.A. § 152.

A25

6. Labor Relations (Key) 416.4

By reason of the Norris-LaGuardia Act, district court

lacked jurisdiction to enjoin primary strike activity di-

rected at supplemental air carrier’s mtitary flights; once

the major dispute mechanisms of the Railway Labor Act

had been exhausted, unions could not be enjoined from

using their full economic power in support of their de-

mands; that is, the contract provision by which unions

agreed not to strike military flights, even after RLA dispute

mechanisms had been exhausted, was not enforceable by

injunctive relief. Norris-LaGuardia Act, § 4, 29 U.S.C.A.

§ 104; Railway Labor Act, § 1 et seq., 45 U.S.C.A. § 151

et seq.

7. Labor Relations (Key) 416.4

Accommodation reached between the Norris-La-

Guardia Act and the National Labor Relations Act does

not necessarily carry over to disputes controlled by the

Railway Labor Act; on the other hand, in cases which

present difficult questions under the RLA but do not re-

quire statutory interpretations that are unique to the mech-

anisms of that Act, the doctrines developed by Congress

and the courts from their experience in adjusting questions

of labor law policy generally are instructive. Norris-La-

Guardia Act, § 101 et seq., 29 U.S.C.A. § 101 et seq;

Railway Labor Act, § 1 et seq., 45 US.C.A. § 151 et

seq.

8. Labor Relations (Key) 416.5

In general, when a contract provision is opened to

negotiation, the provision is not kept in effect by operation

of the Railway Labor Act once the procedures for major

dispute resolution are exhausted. Railway Labor Act, § 1

et seq., 45 U.S.C.A. § 151 et seq.

A26

9. Labor Relations (Key) 414

To encourage voluntary settlement of major disputes,

the Railway Labor Act postpones the time for self-help

remedies; however, if after reasonable effort the parties

have exhausted the bargaining procedures specified by

the RLA without agreement, the statute does not bar such

remedies, including a strike. Railway Labor Act, § 1

et seq., 45 U.S.C.A. § 151 et seq.

10. Labor Relations (Key) 414

Once major dispute procedures are completed and the

different pressures put on the parties to achieve voluntary

settlements have been exhausted, ordinarily the employer

and union are free to resort to traditional economic weap-

ons; the Railway Labor Act does not, however, preclude

the parties from adopting a different procedure by con-

tract. Railway Labor Act, § 1 et seq., 45 U.S.C.A. § 151 et

seq.

11. Labor Relations (Key) 249

Although, ordinarily, a union’s promise not to strike is

accompanied by a promise that the employer agrees to sub-

mit the dispute to binding arbitration, an arbitration clause

is not required as a condition to holding a no-strike promise

binding.

12. Labor Relations (Key) 853

Anti-injunction command of the Norris-LaGuardia Act

may operate independently to bar an injunction notwith-

standing the validity of the contract clause to be enforced.

Norris-LaGuardia Act, § 4,29 U.S.C.A. § 104.

A27

13. Labor Relations (Key) 964

Absent a substantial nexus with statutory dispute set-

tlement 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.

14. Labor Relations (Key) 416.4

History of Railway Labor Act prevented the Court

of Appeals from finding, in the Act’s obligation to “main-

tain agreements,” a broad mandate to enjoin all, or even

plain, breaches of collective bargaining agreements by a

union. Railway Labor Act, § 2, 45 U.S.C.A. § 152.

15. Labor Relations (Key) 414

Railway Labor Act was a response to the perceived

dangers of disruption in the transportation industry. Rail-

way Labor Act, § 1 et seq., 45 U.S.C.A. § 151 et seq.

16. Labor Realtions (Key) 414

Policy of the Railway Labor Act is not that any act

which disrupts the transportation industry may be en-

joined; instead, after major dispute procedures are com-

pletely exhausted, with reasonable efforts having been

made to reach an agreement, the policies peculiar to the

RLA are also exhausted and the parties are governed

by general labor law principles. Railway Labor Act, § 1

et seq., 45 U.S.C.A. § 151 et seq.

17. Labor Relations (Key) 853

Norris-LaGuardia Act was passed to limit the role

of the courts in enforcing labor contracts. Norris-

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

A28

18. Labor Relations (Key) 416.4

If a no-strike clause in force during the life of contract

was ambiguous as to whether the strike was permitted,

the strike could be enjoined pending the outcome of minor

dispute arbitration, and an arbitrator’s determination that

the strike should stop could be enforced in federal court

by an injunction; but, anomalously, where the breach is

so clear that arbitration is not necessary to determine

the violation, no injunction may issue, Norris-LaGuardia

Act, § 101 et seq., 29 U.S.C.A. § 101 et seq.; Railway

Labor Act, § 1 et seq., 45 U.S.C.A. § 151 et seq.

19. Labor Relations (Key) 416.4

District court had jurisdiction to enjoin sympathy

strike, in its entirety, pending determination of the con-

tractual rights of the parties by adjustment board; that

is, air carrier’s flight engineers and pilots were required

to resort to the minor dispute mechanisms of the Railway

Labor Act to have their rights clarified before engaging

in a sympathy strike in support of striking flight atten-

dants. Railway Labor Act, § 1 et seq., 45 U.S.C.A. § 151

et seq.

20. Labor Relations (Key) 416.4

Implementation of the Railway Labor Act’s process

for resolving minor disputes is not limited to granting

preliminary injunctive relief only where the relief will

make it more likely that the dispute will be arbitrated.

Railway Labor Act, § 1 et seq., 45 U.S.C.A. § 151 et

seq.

21. Labor Relations (Key) 414

Requirement of arbitration under the Railway Labor

Act is an essential part of the congressional purpose of

A29

avoiding interruption of the transportation industry. Rail-

way Labor Act, § 1 et seq., 45 U.S.C.A. § 151 et seq.

22. Labor Relations (Key) 414

Minor dispute arbitration procedure established by the

Railway Labor Act was designed as a substitute for prear-

bitration strikes. Railway Labor Act, § 1 et seq., 45

U.S.C.A. § 151 et seq.

23. Labor Relations (Key) 414

Legislative history of the Railway Labor Act suggests

an intent to prevent a dispute that involves a small number

of transportation workers from disrupting the carrier’s

existing operations and its relations with other employees,

and 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.

Railway Labor Act, § 1 et seq., 45 US.C.A. § 151 et

seq.

24. Labor Relations (Key) 416.4

A federal court under the Railway Labor Act may

not enjoin a strike penalty in breach of contract where

the major disputes mechanism of the Act have been used

and exhausted. Railway Labor Act, § 1 et seq., 45 U.S.C.A.

§ 151 et seq.

25. Labor Relations (Key) 415

While the Railway Labor Act’s policy of avoiding dis-

ruption of transportation businesses is not all-encompass-

ing, the policy is strong enough 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; this does no more than

A30

preserve the status quo pending clarification of the parties’

rights by statutory procedures. Railway Labor Act, § 1

et seq., 45 U.S.C.A. § 151 et seq.

26. Labor Relations (Key) 415

Maintenance of the status quo before and during major

dispute procedures is required by the Railway Labor Act.

Railway Labor Act, § 6, 45 U.S.C.A. § 156.

27. Labor Relations (Key) 416.4

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 Railway Labor Act’s minor dis-

pute procedures, Railway Labor Act, § 1 et seq., 45

U.S.C.A. § 151 et seq.

28. Injunction (Key) 132

Maintenance of the status quo is a traditional basis

for equitable relief.

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

A31

(RLA), 45 U.S.C. §§ 151 et seqg.! 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 Novem-

ber 30, 1976, TIA merged with Saturn Airways. The com-

pany 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 attendants and the engi-

neers are represented by the International Brotherhood

of Teamsters, Airline Division (Teamsters). TIA’s pilots

are represented by the Air Line Pilots Association (ALPA),

which also represented the premerger Saturn pilots.? The

company obtained federal injunctive relief prohibiting both

strikes to the extent they were directed to military flights,

but the district court did not enjoin the strikes against

civilian flights. Both the company and the affected Team-

sters 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

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

1. Although we ultimately hold that the Norris-LaGuardia

Act deprives the federal courts of jurisdiction to enjoin the pri-

mary strike in this case, federal question jurisdiction is con-

ferred by 28 U.S.C. §§ 1331 & 1337, since the enforceability of

the contract clauses at issue and the propriety of granting in-

junctive relief arise under the various sections of RLA, 45 U.S.C.

§§ 151 et seq.

2. The 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.

A32

this agreement.” At the heart of the dispute over the

legality of the primary strike lie further contract provi-

sions, 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 signals the

union’s intent to negotiate a new employment agreement.

45 U.S.C. § 156. The contract expiration date (April

1, 1976) arrived without the parties having reached accord.

Pursuant to the provisions of the Railway Labor Act,

the agreement remained in force during the dispute resolu-

tion procedures set in motion by the section 6 notice.

3. The relevant contract provisions provide:

ARTICLE XII

No Strike—No Lockout

Section A. During the term of this Agreement, the

Union shall not authorize, cause, sanction or engage in any

strike, picketing, slowdown or stoppage of work.

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

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

its Flight Attendants.

Section C. During the term of this Agreement, the

Company reserves the right to discharge or otherwise disci-

pline any Flight Attendant taking part in any strike, picket-

ing, slowdown or stoppage of work.

Section D. The Union further agrees that the Flight

Attendants will continue to perform all duties which are

necessary to enable the Company to operate flights for or

in support of traffic sponsored by the Department of Defense

of the United States of America, even though such Flight

Attendants withdraw from commercial airline service be-

cause of a dispute arising out of negotiations for a new con-

tract after the expiration date of this Agreement and/or

during and after all procedures of the Railway Labor Act

have been exhausted, provided the Company shall submit

to the Union, when requested, proof that a particular flight

is being flown or operated under charter or contract to the

Department of Defense.

A33

See id. Further negotiations between the parties produced

no agreement, and a mediator was assigned by the National

Mediation Board on August 19, 1976.

The union refused voluntary arbitration, the mediator

withdrew, and after expiration of the statutory 30-day

cooling off period expired at midnight, September 7, 1977,

the flight attendants struck all flights. TIA’s flight engi-

neers 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 district

court ultimately granted a preliminary injunction prohibit-

ing the flight attendants from striking TIA’s military

flights, but denied an injunction prohibiting flight atten-

dants from striking TIA’s other operations. A similar

injunction was issued against the flight engineers and pi-

lots, enjoining the sympathy strike as to military flights

only.

In this court, the Teamsters moved to stay the mili-

tary strike injunctions, and TIA moved for temporary in-

junctive relief pending decision of the appeal. Oral argu-

ment on these motions was heard by this panel. In addition

to the motions for preliminary relief, the principal appeal

from the district court’s preliminary injunctions 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 further oral argument

in these cases is unnecessary, these appeals, Nos. 77-3362,

77-3363, 77-3395, 77-3781, 78-1148 & 78-1232 are considered

submitted to this panel on the date of filing of this opinion,

and their disposition is controlled by this opinion.

A34

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; expanded the number of military

flights (which the district 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 strik-

ers; 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 procedures

violated section 152 First of the RLA, which requires par-

ties “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

S.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 request-

ing approximately 200 contract changes after a year

of negotiations and six months prior to the strike, and

(2) that the cost of the Teamsters’ initial proposal for

flight attendants exceeded 250% of TIA’s then-present pay-

roll costs for TIA flight attendants, and its proposals after

mediation by the National Mediation Board exceeded 200%

A35

of TIA’s total companywide profits for 1976 and repre-

sented a 294.6% increase in flight attendant payroll costs.

Finally, even if enjoining the Teamster’s strike was

not proper because of the union’s bargaining tactics, TIA

contends an injunction against strikes of military flights

was proper because, among other reasons, the various

groups of 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.

[1] The strikes which were the subject of this law-

suit have been settled, and a new collective bargaining

agreement was signed on January 12, 1978.4 We must

first decide whether this appeal is not moot.

We hold these appeals are not moot, primarily because

resolution of the issues presented is crucial to 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 Sep-

tember 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 strike military

flights. On November 1, 1977, the Teamsters were adjudi-

cated in contempt of the district court’s orders. TIA alleges

its military operations were virtually shut down by strik-

ing flight attendants and flight engineers causing TIA ap-

4. The contracts between TIA and its flight attendants, en-

gineers, and pilots contain the same military no-strike clause

which is discussed at greater length below.

A36

proximately $400,000 in compensatory 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, “pending the results of the appeals

before the Court of Appeals for the Ninth Circuit in TIA

v. Teamsters, Nos. 77-3362/3363/3395/3781.”

Thus, the right of TIA to recover its alleged damages

and the extent of recovery will be controlled, in part,

by resolution of the overriding issue in these appeals:

whether TIA was entitled to injunctive relief against

either the primary or the sympathy strike. See, e. g.,

Lewis v. S. S. Baune, 534 F.2d 1115, 1119 (5th Cir. 1976)

(“A judgment of civil contempt, being remedial in nature,

stands or falls with the validity or invalidity of the order,

and the opposing party should be compensated only if

he was entitled to the order.” ); Latrobe Steel Co. v. United

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

der 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 possi-

bility of damage liability in the contempt proceedings be-

low, and if we determine the case is moot we should also

instruct the district court to dismiss the contempt proceed-

ings. 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,

A37

55 L.Ed. 797 (1911). Procedurally Gompers does resemble

this case. The company had secured an injunction against

a boycott. Appeals were taken from this injunction. Be-

fore the appeal was decided, the company initiated con-

tempt 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 injunc-

tion reached the Supreme Court, the parties had settled

their differences. The Court accordingly dismissed 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:

[W]hen 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

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 ig-

nores 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 liti-

gation between them. 221 U.S. at 451, 31 S.Ct. at 502;

219 U.S. 581, 31 S.Ct. 472 (1911). The determinations of

mootness were predicated on this finding. In our case,

by contrast, there has beén no out-of-court settlement by

the parties of ‘every material controversy which the rec-

faite:

A38

ord present[s].” 219 U.S. at 581, 31 S.Ct. at 472. The

strike has ended and the parties have signed a new col-

lective bargaining agreement, but this does not constitute

a settlement of the controversies which spawned this litiga-

tion. A recent third circuit case illustrates the point. In

Bituminous Coal Operators’ Association, Inc. v. U. M. W.,

585 F.2d 586 (3d Cir. 1978), the employer had sued for both

injunctive relief and damages. While the appeal from the

district court’s orders was pending, the collective bargain-

ing 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 dis-

agreed:

We note at the outset that the expiration of the 1974

agreement and the execution of the 1978 agreement

have not mooted a claim for damages by the mine

owners.

Id. at 599.

[2] The possibility of compensatory damage liability

in this case arises from the civil contempt adjudication and

not, as in Coal Operators, from a damages action under the

NLRA. We perceive no constitutional distinction in this

fact. Cf. Latrobe Steel Co., supra, 545 F.2d at 1345-46. A

proceeding for civil contempt is part of the original action.

See, e. g., Gompers, supra, 221 U.S. at 444-45, 31 S.Ct. at

499-500. For purposes of determining whether a live con-

troversy exists on this appeal from the injunctive orders

of the district court, we may consider the fact that the

Union has been adjudicated in civil contempt of those or-

ders, and that imposition of substantial compensatory dam-

ages depends on resolution of the issues presented o:. this

appeal. Cf. also American Bible Society v. Blount, 446

A39

F.2d 588 (3d 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 such

as Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d

350 (1975), Super Tire Engineering Co. v. McCorkle, 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. 983,

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’ Association, Inc. v. U. M. M., 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, rep-

resented by ALPA, in May of 1972. Saturn’s flight engineers,

attendants, and navigators, all represented by the Teamsters,

struck Saturn again in August of 1974. Saturn secured a court

order requiring the striking parties to return to work. Further,

the actions of TIA in maintaining operations in the face of the

strikes in this case were found by the district court to be com-

mon methods used by employers, and presumably reasonably likely

to be used by TIA in the event of another strike. The Teamsters

and ALPA continue to represent some of the groups of employees

involved in this lawsuit. Thus the same parties whose conduct

is at issue in this suit will continue to face each other across the

bargaining table. Moreover, the new contract signed by TIA

and the Teamsters on January 12, 1978, contains the same mili-

tary no-strike clause which is the principal subject of this opin-

ion. Finally, although the bargaining and subsequent strike giv-

ing 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.

(Continued on following page)

A40

[3] The Teamsters raise another, more limited, moot-

ness argument. They contend TIA’s appeal from the dis-

trict 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 Team-

sters did not make a reasonable effort to reach an agree-

ment 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 in-

junction underlying the contempt order. For this reason

alone, even apart from our reluctance 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. 173, 187, 99 S.Ct. 983, 992, 59 L.Ed.2d 230 (1979); Amal-

gamated 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), the Union’s bargaining behavio,

is part of the live case or controversy before us. See Coal

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

[4] Turning to the merits, we address first the clean

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

motion for preliminary relief, that TIA was not prevented

Footnote continued—

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 de-

cision regarding mootness, see Coal Operators, supra, 585 F.2d at

599-600; Japan Air Lines Co. v. International Association of Ma-

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

A4l1

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 Op-

erations during the current strike in an attempt to

defeat the strike . . . are all legally permissible and

fairly common methods of countering the impact 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 sit-

uation, 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 pre-

liminary 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

regarding TIA’s varied and extensive efforts to continue its

operations 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 of countering the impact of a strike, are so in-

equitable as to require the denial of injunctive relief. These

parties are engaged in a hard fought labor dispute that un-

fortunately 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

mater 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-

(Continued on following page)

A42

TIA’s conduct in their briefs. Having reviewed their con-

tentions, we cannot conclude that the district court applied

a legally improper standard or made clearly erroneous find-

ings 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 other-

wise wrongful that TIA should be prevented from seeking

injunctive relief. See Illinois Central R. R. v. Brotherhood

of R. R. Trainmen, 398 F.2d 973 (7th Cir. 1968); Brother-

hood 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. dewied, 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).

[5] 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

Footnote continued—

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

pansion 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

airline to seek and obtain a greater proportion of the avail-

able 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 sit-

uation 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 tem-

porary restraining order of September 28, 1977.

Counsel for the plaintiff shall prepare a proposed form

of judgment. Rule 58, Fed.R.Civ.Pro.

A43

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 bar-

gaining 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, proposal was to

integrate the old Saturn and old TIA agreements,

taking the best from both. Since the carriers were

newly merged and the Teamsters were now represent-

ing a larger group of flight attendants, it hardly seems

unreasonable for them to modify their previous pro-

posal substantially to meet the new conditions,

The court found, “negotiations did not get under way [] in

earnest until approximately the time the Teamsters in-

troduced their new proposal,” and concluded that the

increased number of proposals was reasonable in light

of the recent merger between TIA and Saturn. The

district court’s finding is not clearly erroneous and must

be affirmed. Similarly, its finding that the assertedly

exorbitant size of the Teamsters’ proposals regarding wages,

benefits, and working conditions did not demonstrate a re-

fusal 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 rea-

sonable 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 character-

ized the bargaining as ‘obstinate and unyielding” but not

in violation of the statutory standards.

A44

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 obligations

under section 152 First; but in this case the district 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).

[6] We are confronted, then, with TIA’s argument

that injunctive relief against the primary strike was ap-

propriate because of language contained in the collective

bargaining agreement. The Teamsters argue that the dis-

trict 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.

[7] The accommodation reached between the Norris-

LaGuardia Act and the National Labor Relations Act does

not necessarily carry over to disputes controlled by the

RLA. In this regard, the Supreme Court has stated:

“The relationship of labor and management in the railroad

industry has developed on a pattern different from other

industries. The fundamental premises and principles of

the Railway Labor Act are not the same as those which

form the bases of the [NLRA]... .” Brotherhood of Rail-

road Trainmen v. Chicago River & I. R. R., 353 U.S. 30, 31-

32 n.2, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957). On the other

hand, in cases which present difficult questions under the

RLA but do not require statutory interpretations that are

unique to the mechanisms of that Act, the doctrines de-

veloped by Congress and the courts from their experience

A45

in adjusting questions of labor law policy generally are in-

structive. For an analogy, and to determine national labor

policy, it is appropriate to refer to the NLRA for assistance

in construing the RLA. Brotherhood of Railroad 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 dis-

pute mechanisms had been exhausted, is enforceable by

injunctive relief. Decision of this question requires 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 de-

signed to facilitate a voluntary agreement of the parties in

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

711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945); O’Donnell v. Wien

Air Alaska, Inc., 551 F.2d 1141 (9th Cir. 1977). The minor

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 par-

ticular provision with reference to a specific situation

or to an omitted case.

Elgin, supra, 325 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 written

notice. § 6. The parties must confer, $2 Second, and

A46

if conference fails to resolve the dispute, either or both

may invoke the services of the National Mediation

Board, which may also proffer its services sua sponte

if it finds a labor emergency to exist. § 5 First. If

mediation fails, the Board must endeavor to induce the

parties to submit the controversy to binding arbitra-

tion, which can take place however, only if both con-

sent. § 5 First, 7. If arbitration is rejected and the

dispute threatens “substantially to interrupt interstate

commerce to a degree such as to deprive any section

of the country of essential transportation service, the

Mediation Board shall notify the President,” who may

create an emergency board to investigate and report

on the dispute. § 10. While the dispute is working

its way through these stages, neither party may uni-

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

Brotherhood of Railroad Trainmen v. Jacksonville Ter-

minal Co., supra, 394 U.S. at 378, 89 S.Ct. at 1115.

[8,9] 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.

For [the] settlement [of major disputes] the statutory

scheme retains throughout the traditional voluntary

processes of negotiation, mediation, voluntary arbi-

tration, and conciliation. Every facility for bring-

ing about agreement is provided and pressures for

mobilizing public opinion are applied. The parties

are required to submit to the successive procedures

A47

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, 325 U.S. at 725, 65 S.Ct. at 1291. See also

Jacksonville Terminal Co., supra, 394 U.S. at 379-80, 89

S.Ct. at 1115-16. All concede that the primary strike by

the flight attendants did not commence until the major

dispute resolution procedures of the Act had been ex-

hausted.

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 be-

yond 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 mean-

ing 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 portions of

the clause meaningless. TIA would not secure the union’s

promise not to strike military flights after exhaustion of

RLA procedures if it were intended that operation of the

procedures nullified the obligation. The flight attendants’

strike, therefore, violated the military no-strike clause, and

resort to minor dispute arbitration is not necessary to reach

this conclusion. See Wien,-supra at 1146-47: Seaboard

A48

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 dispute.

In the normal case, once having exhausted major disputes

procedures the parties are free to resort to self-help. The

military no-strike clause had already been the subiect 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.

[10] 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 pressures put on the parties to achieve voluntary

settlements have been exhausted, it is true that ordinarily

the employer and the union are free to resort to the tradi-

tional economic weapons. Brotherhood of Locomotive Engi-

neers v. Baltimore & O. R.R., 372 U.S. 284, 291, 83 S.Ct. 691,

695, 9 L.Ed.2d 759 (1963) (per curiam); Elgin, supra. The

RLA does not, however, preclude the parties from adopt-

ing 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).’

[11] Whatever may be that limitation on the extent

of damages properly awarded in an action at law, see

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

no policies peculiar to the RLA which prohibit the parties

from regulating by contract their post-major disputes rela-

tions in the manner they have here. It is true that ordi-

7. For instancg, nothing in our holding today prevents

parties from agreeing to binding arbitration after the major dis-

pute mechanisms of the Act are exhausted.

—

A49

narily a union’s promise not to strike is accompanied 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.

[12] 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 command of the Norris-LaGuardia Act may op-

erate independently to bar an injunction notwithstanding

the validity of the contract clause to be enforced, and

we rule the injunctive power of the federal court may

not be used to enforce the no-strike clause here.

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, 39° U.S. 235, 90 S.Ct. 1583,

26 L.Ed.2d 199 (1970). As the Court in Buffalo Forge

stated:

“[T]here is no general federal anti-strike policy; and

although a suit may be brought under § 301 against

strikes which, while they are breaches of private con-

tracts, do not threaten any additional public policy,

in such cases the anti-injunction policy of Norris-La-

Guardia should prevail.”

428 U.S. at 409, 96 S.Ct. at 3148, quoting Sinclair Refin-

ing Co. v. Atkinson, 370 U.S. 195, 225, 82 S.Ct. 1328, 1344,

8 L.Ed.2d 440 (1962) (dissent). If we were persuaded

that a substantial purpose unique to the RLA, or protection

of its dispute settlement mechanisms, would be substan-

tially furthered by specific enforcement of the clause, we

A50

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 injunc-

tion, which reduces the risks inherent in renegotiating

the contract. Frequent negotiation, under this view, fur-

thers industrial stability by permitting more precise adjust-

ments to meet changing economic conditions.

Further, the breach of contract in this case is plain

and unambiguous. One might argue that unambiguous

contract breaches could be enjoined without doing violence

to any Norris-LaGuardia Act policy. See Note, The Appli-

cability of Boys Markets to Refusals to Cross a Picket

Line, 76 Colum.L.Rev. 113, 136-41 (1976). Cf. Buffalo

Forge, supra, 428 U.S. at 416-17, 96 S.Ct. at 3151-52 (dis-

sent) (purpose of Norris-LaGuardia Act is to protect labor

organizing and ability to bargain collectively, not to pro-

hibit enforcement of collective bargaining agreements);

F, Frankfurter & N. Greene, The Labor Injunction

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

Labor Injunctions, and Sympathy Work Stoppages, 44

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

Moreover, in this case the military no-strike clause

was directed to the discrete transportation function of

military flights the union retaining the right to strike

other TIA flights. In addition, apparently the federal gov-

ernment insisted that the company insert the clause as

a condition of obtaining military contracts. The no-strike

A51

clause therefore furthered specific government transporta-

tion interests.*®

Finally, the RLA contains a statutory provision requir-

ing the parties to a contract to maintain their agreement

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 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 growing

out of any dispute between the carrier and the em-

ployees thereof.

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

Transportation Union, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.

2d 187 (1971) held that this section imposed a substantive

duty on parties, enforceable by injunctive relief, to exert

reasonable efforts during the negotiating process to reach

an agreement. More to the point, the duty to maintain

agreements was found a basis for injunctive relief in Sea-

board World Airlines, Inc. v. Transport Workers Union,

425 F.2d 1086 (2d Cir. 1970), reaff’d in further consider-

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

Transportation Co. v. Railway & Steamship Clerks, 81

L.C. para. 13,113 (N.D.Cal.1975). The Second Circuit in

Seaboard permitted an injunction to prohibit a strike in

violation of the union’s contractual promise not to reopen

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 disrup-

tion, and the President may then create a board to investigate

and report respecting the dispute. For the thirty days allowed

for the board’s work, and for thirty days thereafter, no change

in the status quo is permitted except by agreement of the parties.

A52

certain subjects for RLA major dispute bargaining before

a given date.®

[13-17] The difficulty in relying on the above consid-

erations to justify injunctive relief is that, with the ex-

ception of the language in section 152, all of these factors

if present in a case arising under the NLRA would be

insufficient to permit an injunction to issue. Absent a

substantial nexus with statutory dispute settlement mech-

anisms or an agreement to arbitrate, an injunction may

not issue to prevent a plain breach of a no-strike clause

by aunion. The language of section 152 is perhaps unique

to the RLA, The history of the RLA, nevertheless, pre-

vents us from finding in the Act’s obligation to “maintain

agreements” a broad mandate to enjoin all, or even plain,

breaches of collective bargaining 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 described elsewhere and need not be

repeated here. See Chicago & N.W. Ry., supra, 402 U.S.

at 574-84, 91 S.Ct. at 1733-39; Chicago River, supra, 353

U.S. at 40, 77 S.Ct. at 640; Elgin, supra, 325 U.S. at 724-

27, 65 S.Ct. at 1290-92; Wien, supra at 1145-46. The impor-

tant point is that Congress responded to these concerns

9. In Seaboard the parties, by supplemental agreement, had

resolved 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 ne-

gotiate the flight navigator question, the very issue put out of

reach by the supplemental agreement. When the airline refused

to negotiate the issue, the union struck, arguing that the carrier

was avoiding its obligations to bargain under the major disputes

provision of the Act. The court held that an anti-strike injunc-

tion could issue pending resolution by the district court of the

question whether the extended prohibition on reopening the par-

ticular 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.

A53

by implementing a comprehensive system of binding arbi-

tration and mandatory nonbinding mediation involving

drawn-out procedures designed to encourage parties to

reach agreement. The policy of the statute is not that

any act which disrupts the 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 prin-

ciples. 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,

e. 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 with-

out a weighty statutory reason for doing so.!° The RLA

plan 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

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 be lifted so the union can begin punish-

ing 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.

A54

exhausted the Railway Labor Act’s procedures for resolu-

tion 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 secti3me#52. Seaboard involved

the effect of contractual efforts to limit the scope of a

section 6 proceeding, instead of efforts to specify permis-

sible post-mediation measures. Also, unlike the case before

us, the injunction in Seaboard enabled the parties to com-

plete required bargaining on all other issues subject to

a section 6 notice, and thus pursue dispute settlement

procedures not yet exhauSted.

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

joining a primary strike for the purpose of enforcing a

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 mechanisms was

thus protected by the injunction in Chicago & N.W. Ry.;

enjoining the Teamsters’ primary strike in this case would

not similarly further the RLA’s arbitration policies. We

do not think Chicago & N.W. Ry. is authority for abandon-

ing the Norris-LaGuardia Act’s anti-injunction provisions

A55

whenever a union subject to the RLA has plainly violated

its collective bargaining agreement.

[18] It might appear anomalous that if a no-strike

clause in force during the life of the contract was ambigu-

ous as to whether the strike was permitted, the strike

could be enjoined pending the outcome of minor dispute

arbitration, and an arbitrator’s determination that the

strike should stop could be enforced in federal court by

an injunction, see Order of Ry. Conductors & Brakemen

v. Spokane P. & S. R.R., 366 F.2d 99, 102 (9th Cir. 1966),

cert. denied, 385 U.S. 1025, 87 S.Ct. 752, 17 L.Ed.2d 673

(1967) (RLA); Steelworkers v. Enterprise Corp., 363 U.S.

593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) (NLRA), but

that where the breach is so clear that arbitration is not

necessary to determine the violation, no injunction may

issue. This result, however, is compelled by the combina-

tion of the manner in which Congress and the RLA chose

to reduce disruption in the transportation industry, and

the controlling interpretations of the Norris-La Guardia

Act.

[19] The second principal issue on this appeal is

the authority of the district court to enjoin any aspect

of the sympathy strike. The district court held that it

could enjoin only the sympathy strike directed against

military-flights. Trans International Airlines, Inc. v. Inter-

national 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 engi-

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

addressed below, and we set forth relevant portions of

A56

the contracts in the margin.'' The controlling collective

bargaining agreements between the carrier and the flight

11. 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 ........ Priciiloned , Slip op. pages 2059-2060, differences

in contract language between the former Saturn flight engineers

and the premerger TIA flight engineers and pilots would bear

on the propriety of granting preliminary relief. In relevant

part, the contracts provide:

PRE-MERGER TIA FLIGHT 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

Crewmembers withdraw from commercial airline service

because of a dispute arising out of negotiations for a new

contract after the expiration date of this Agreement and/or

during and after all procedures of the Railway Labor Act

have been exhausted, .. .

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

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

(Continued on following page)

A57

engineers and pilots, both with premerger TIA employees

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 pre-

sents a minor dispute under the Act. Both TIA and the

Teamsters agree that the dispute must be resolved through

the Act’s binding arbitration procedures for minor disputes.

We cannot say that either TIA’s or the Teamsters’ inter-

pretation of the contracts are completely without merit.

Interpretation of the collective bargaining agreements with

respect to the sympathy strike is therefore in the first

instance a matter for the adjustment board rather than

a court. The question presented for our decision is whether

the flight engineers and pilots are required to resort to

the minor dispute mechanisms of the Act to have their

rights clarified before engaging in the sympathy strike.

Footnote continued—

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

Agreement between the Company and its Flight Engineers

as represented by the Union, that the Flight Engineers will

not engage in any strike or work stoppage on purely military

operations conducted by the Company.”

FORMER SATURN PILOTS

(Agrement 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 pro-

visions 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 per-

tain to those flights that are solely and completely military

in nature and whose entire cargo is comprised of military

commodities or military personnel.”

A58

The court in Chicago River, supra, permitted injunc-

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

ing, 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, 6 L.Ed.2d 199

(1970) (reversing Sinclair Refining Co. v. Atkinson, 370

U.S, 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962)). Buffalo

Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S.Ct.

3141, 49 L.Ed.2d 1022 (1976) then clarified the Boys Mar-

kets case, holding that in NLRA cases the Norris-

LaGuardia Act deprived federal courts of jurisdiction to

enjoin a sympathy strike, 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 griev-

ance.”

Chicago River, arising under the RLA, and Boys Mar-

kets, arising under the NLRA, reached parallel results;

indeed the later case made specific reference to the prin-

ciples elaborated in Chicago River. The close relation

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

power of the federal courts is coextensive under the two

statutes. See Sinclair Refining, supra, 370 U.S. at 210-

11, 82 S.Ct. at 1336-37. We conclude that not all of the

reasoning of Buffalo Forge applies in RLA cases and that

policies unique to RLA support jurisdiction to enjoin the

sympathy strike in this case.

A principal goal of the Court in Buffulo 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

A59

determination of the case, a responsibility assigned exclu-

Sively 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

arbitration 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 considerations

are inapplicable here. Congress in the RLA established

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, and the effect of

our decision on the number of minor disputes likely to

be settled by arbitration, are not issues presented by this

case.

[20-23] Moreover, implementation of the RLA’s pro-

cess for resolving minor disputes is not limited to granting

preliminary injunctive relief only where the relief will

make it more likely that the dispute will be arbitrated.’”

12. The Buffalo Forge result has been explained by some

commentators as resting on the insight that enjoining a sympathy

strike does not make it more likely that the arbitrable dispute—

the contractual right to engage in a sympathy strike—will be

decided by the arbitrator. See, e. g., 63 Cornell L.Rev. 507, 512

n.29 (1978); Note, The Applicability of Boys Markets to Refusals

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

pute 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 prac-

(Continued on following page)

A60

The requirement of arbitration under the RLA is an essen-

tial part of the congressional purpose of avoiding interrup-

tion of the transportation industry. Chicago River, supra,

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

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

46. The minor dispute arbitration procedure was designed

as a substitute for prearbitration strikes, cf. Chicago River,

supra, and we think this includes sympathy strikes of

the character presented in this case. See Detroit and

T. Shoreline R.R. v. United Transportation Union, 396 U.S.

142, 148, 90 S.Ct, 294, 298, 24 L.Ed.2d 325 (1969); Texas

and N.O.R.R, v. Brotherhood of Railway & Steamship

Clerks, 281 U.S. 548, 565, 50 S.Ct. 427, 432, 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 disrupting the carrier’s

existing operations and its relations with other employees.

It would be contrary to this objective to permit a sym-

pathy strike before completion of the minor dispute mech-

anisms 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.

[24-28] The policy of avoiding disruption of transpor-

tation 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

Footnote continued—

tical purposes. Thus, in some cases, if any meaningful relief

is to be available, limited pre-arbitration judicial intervention

will be necessary where the employer can show a strong likeli-

hood 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 determination in order to make

the statutory mechanism work.

A61

major disputes mechanism of the Act have been used and

exhausted. The policy is strong enough, however, to re-

quire 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, This does

no more than preserve the status quo pending clarification

of the parties’ rights by statutory procedures. Mainte-

nance 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. § 156. Similarly where

changes in the status quo are likely to lead to serious

harm and threaten to disrupt the operation of the transpor-

tation 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., Brotherhood of Locomotive Engineers

v. Missouri-K.-T.R.R., 363 U.S. 528, 532-35, 80 S.Ct. 1326,

1329-1330, 4 L.Ed.2d 1379 (1960); Tanner Motor Livery

Ltd. v. Avis, Inc., 316 F.2d 804, 808-9 (9th Cir.), cert.

denied, 375 U.S. 821, 84 S.Ct. 59, 11 L.Ed.2d 55 (1963).

Given the special concern of the RLA over 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. Upholding

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:

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From the point of view of these employees, the critical

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 jurisdic-

tion by preventing injury so irreparable that a decision

of the Board in the unions’ favor would be but an

empty victory.

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

For these reasons we conclude that the district court

had jurisdiction to 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 principles

discussed in our opinion, relevant differences in the con-

tract 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 military

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

13. The employer must show it is entitled to an injunction

under traditional equitable standards governing preliminary re-

lief. See Missouri-K.-T. R.R., supra, 363 U.S. at 533-35, 63 S.Ct.

at 1329-31; Wien, supra.

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.

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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.

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 to the 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 nonmilitary flights on the ground

of lack of jurisdiction is reversed.

Because of the contempt proceedings

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