# Opposition Brief — Air Line Pilots Ass'n v. Piedmont Aviation, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1270%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1970 - **Citation:** 397 U.S. 926 ## Text “INTERNATIONAL, ‘* ee AVIATION, INC., - rs X ‘ e ‘ \ } A te eae ? "7 ‘ » . a ‘“ i . ee ie P ar é 4 Me . i ‘ ; ae ae ee eee eee ae ee ere INDEX COUNTERSTATEMENT OF THE CASE ........ 1 The Airlines’ Transition To Twin Jet Aircraft... 1 The Union’s Decree — No Additional Two-Man Crews And No Bargaining On The Subject... 2 The Union’s Adamant Refusal To Bargain... .. .3 _The Union’s Lawsuit For “Breach Of Contract” ...... Cy Ph ee sa ht alee Ate 5 The Proceedings Before The Courts Below ..... 6 SUMMARY OF ARGUMENT ..............:.... 7 I a er ee ee 9 - I, There Is No Reason For Issuanice OfA Writ Of Certiorari................... 9 A. The Petition Is Premature... .. . ...10 B. There Is No Conflict Among The | Courts Of Appeals..............: .14 1. The Asserted Conflict With Second Circuit Decisions ........ 15 2. Procedural. Cases From emer SPOS i ew en 20 II. The Courts Below Were Not Bound By The Obiter Dictum Of The District Court For The District Of Columbia ..... 24. III. The Decision Below Is Entirely Con- sistent With Principles Enunciated By This Court And Is Fully Supported By Other Court Precedents............... 28 CONCLUSION ......... Se en ei AT yr te 40 TABLE OF AUTHORITIES Cases: : Page Air Line Pilots Ass’n. v. Quesada, 182 F. Supp. 595 (S.D. N.Y.), aff'd., 276 F. 2d 892 (2nd Cir. 1960).-..... Sih eg Nie ea 4 to 1c Reem 31 American Airlines. Inc. v. Air Line Pilots : Ass’n., 169 F. Supp. 777 (S.D. N.Y. 1958) .....38- American Airlines, Inc. v. Transport Workers Union, 202 F. Supp. 806 (S.D. N.Y. 1962) ..... 38 . Berenyi v. Immigration and Naturalization Service, Soa tas. Goo (1001) oo ee. 19 Blue Diamond Coal Co. v. United Mine Workers, 282 F. Supp. 562 (E.D. Tenn. 1968) . 22 Bowles v. Wilke, 175 F. 2d 35 ¢7th Cir. ), cert. den., 338 U. S. 861 (1949) .............. 25, 27 Brotherhood of Locomotive Firemen & Enginemen v. Central of Georgia Ry., 411 F. yi 2d cae (Gta Cir. 1960) 20] ome 9,23 / Brotherhood of Locomotive Firemen and Enginemen v. Bangor & Aroostook R.R., 380. Bae Or tO, TOG 1) hee S 37 Brotherhood of R. R. Trainmen v. Akron & Barberton Belt R. R., 385 F. 2d 581 (D. C. Cir. - 1967), cert. den., 390 U: §. 923. (1968) ..:.. 36, 39 Brotherhood of R. R. Trainmen v. Chicago River & Indiana R. R., 353 U.S. 30. (1957) .-.. 35 Brotherhood of R. R. Trainmen v. Jacksonville Terminal Co., 394 U. S. 369 (1969) .......... 29 Brotherhood of R. R. Trainmen 7g. Toledo, Peoria & Western R. R., 321 U.S. 50 (1944) . :. .38 | ii Page Chicago, Burlington & Quincy R. R. v. Railway Employes’ Dept., — F. Supp. —, 60 LC $10,071 — (D. D. C. | F beppea eet aoa MOA il ee Pia ‘hy oo Chicago, Rock Island and Pacific R. R. Vv. Switchmen’s Union, 292 F. 2d 61 (2nd Cir. Res ee ee tie 8,15, 16 Cohen v. Virginia, 6 Wheat. 264 (1821) . ... 26 Crosley Corp. v. Hazeltine Corp., 122 F. 2d ae te ee ot 9, 23 Delaney v. United States, 263 U. S. 586 (1924), quoted in United States v. Johnson, 319 ° Mite RD i OS on 6 ec heat 19 - Hilton Hotels Corp. v. Weaver; 325 F. 2d 1010 EUG Si ee AS 8 RR Ae er cee Or eae 9, 22 Hunter v. Atchison, T. & S. F. Ry., 188 F. 2d SO ee ee ee et 27 Long Island R. R. v. Brotherhood of R. R. Trainmen, 185 F. Supp. 356 (E. D. N. Y. 1960) . 32 Majure v. National Labor Relations Board, 198 F. 2d 735 (5th Cir. 1952) ....... eS 34 _ Mazinski v. Dight, 99 F. Supp. 192 (W. D. Pa. re ni os oS 22 Meiselman v. Paramount Film Distributing Corp., 180 F. 2d 94 (4th Cir. 1950) .......... 14 Messinger v. Anderson, 225 U. S. 436 (1912) .. 26 National Labor Relations Board v. Berkley Machine Works & Foundry Co., 189 F.2d 904 — CO ey ek ee ye eis 34 National Labor Relations Board v. Darlington Veneer Co., 236 F. 2d 85 (4th Cir. 1956) ...... 33 f ; : : 3 Page National Labor Relations Board v. Israel Putnam Mills; 197 F. 2d 116 (2nd Cir. 1952) . New York Central R. R. v. United States, 200 F. Supp. 944 CB. 3): INT BOR) ob a 2a Norfolk & Portsmouth Belt Line R. R. v. Brotherhood of R. R. Trainmen, 248 F. 9434 . ee a Ee aS 37 Order of R. R. Telegraphers v. Chicago and North Western R. R., 362 U.S. 330 (1960)... 35 Osaka Shosen Kaisha Line v. United States, OOD US Oe (17 ei I eet okt 26 Pan American World Airways, Inc. v. Brotherhood of Ry. and S. S. Clerks, 185 F. Supp. 350 (E. D.N. Y. iat SRS ee et eee 33 Pan American World Airways, Inc. v. Flight Engineers Int'l. Ass’n., 306 F. 2d 840 (2nd BD | it Sai aM Re hae BN aco as We Rese Ee ea 8, 20 Pan American World Airways, Inc. v. International Brotherhood of Teamsters, 275 | F. Supp. 986 (S. D. N. Y. 1967), affirmed on the basis of the opinion below sub. nom. Brotherhood of Ry. Clerks v. Pan American World Airways, Inc., 404 F. 2d 938 (2nd Be age |S BRR Ro ear Cian dee Teed Dit riylinde eo Sets 37 Pennsylvania R. R. v. Transport Workers Union, 191 F. Supp. 915 (E. D. Pa.) aff'd., 280 F. 2d 343 (3rd Cir. 1960) ........,...... 37 Pennsylvania R. R. v. Transport Workers | Union, 202 F. Supp. 134 (E. D. Pa. 1962) .:... .38 Sims v. Central Trust Co., 123 F. 2d 89 (4th Cit; FORT). ss SO ae Oe Eas on ee 14 Page Singer Mfg. Co. v. National Labor Relations . Board, 119 F. 2d 131 (7th Cir. 1941) ...... ene Southern Ry. v. Brotherhood of Locomotive Firemen and Enginemen, 223 F. Supp. 296 (M. D. Ga. 1962), aff’d., 324 2d 503 (5th CO Te ee ee ne Ra ec re nea 38 Texas Gulf Sulphur Co. v. Ritter, 371 F. 2d 145 (OR Ce. 267) oe ok ore aa 0° Texas & New Orleans R. R. v. Brotherhood of . Ry. & S. S. Clerks, 281 U. S. 548 (1930) ....... 19 Toti v. Plymouth Bus Co., 281 F. Supp. 897 (3. BY. BR) es se Re aes Oaks Po United States v. United States Smelting, Refining & Mining Co., 339 U. S. 186, reh. den., 339 U.S.972 (1950) ..... OSs sex Seapets 27 Virginian Ry. v. System Federation No. 40, S00 UB. BAS CS ee eee 19, 29 _ Western Air Lines, Inc. v. Flight Engineers Int'l. Ass’n., 194 F. Supp. 908 (S. D. Cal. 1961) . 37 Wright v. United States, 302 U.S. 583 (1938) = Statutes: _ Federal Aviation Act of 1958, Bie SGOLCD 40 UC. SISGID) 2 oo ee 31 Norris-LaGuardia Act, ; M3 §7, 29 U.S.C. §107 ........ sei ceraeas ene 18 Railway Labor Act, ete f Oe ee Se ia ae eae 28, 29 Use Pee Meet ae 3. a, % >», e, = wih aera tee ee eee | INTHE —_ Supreme Court of the United States OCTOBER TERM, 1969 ° H NO. 995 AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, becabouoe | i \ PIEDMONT AVIATION, INC.. Respondent. \ ee On Petition for Writ of Certiorari ~\ \ \ BRIEF-OF PIEDMONT AVIATION, INC. \ \ IN OPPOSITION \ COUNTERSTATEMENT OF THE CASE The Airlines’ Transition To Twin Jet Aircraft Approximately ten years ago, twin turbine-powered transport aircraft were introduced into the air carrier industry (Saunders,' p. 1, 2). These short-haul air- craft were designed and manufactured for operation by a crew complement of two people, a pilot and co- pilot (Saunders, Supp., pp. 1-3 §§ 1-4; Tadlock, pp. rt 1-2, §§1-2). They were exhaustively tested and cer- tified by the Federal Aviation Agency for safe opera- 1Affidavits of record are referred to by the last names of the affiants. 2 tion by such a crew complement (Saunders, pp. 2-3, §4; Tadlock, p. 2, 92). | By late 1965, the majority of domestic air carriers, including Piedmont’s principal competitors, had pur- chased and were utilizing these aircraft (Saunders, _-p. 2, 93; p. 7, 913). At that time, after having made a thorough evaluation of its own, Piedmont ordered twelve Boeing 737 turbo jets to be delivered in 1968 at a cost in excess of $40,000,000 (Saunders, p. 3, 96; - p. 8, 916). , At various times during this period, the airlines which purchased such jets bargained with the peti- tioner, Air Line Pilots Association, on crew comple- ments for the new jet equipment. Such bargaining invariably resulted in contracts providing for opera- tion by a two-man crew (Saunders, p. 2, §3; p. 5, 99; p. 7,'9912-13). The Union continued, by contractual arrangements, to approve two-man crew comple- ments until after mid-year 1966. The Union’s Decree — No Additional Two-Man Crews And No Bargaining On The Subject At a private convention in August 1966, by amend- ment to its constitution, the Union issued a “manda- _ tory, policy” which directed that “all future turbine- powered transport aircraft will be . . . manned by a_ minimum crew of three pilots” (Saunders, p. 5, 99; Tadlock, Exhibit C ). Elsewhere, the Union’s constitu- tion ordered its negotiators to “function” in accord- ‘ance with such “policy” and provided for fines, sus- oe pension or expulsion of any member who might vio- late such order (Saunders, p. 4, §8). ~ | ~The Union’s edict was issued unilaterally, without any actual notice. to: Piedmont, approximately one year before any notice such'as is required by Section 6 of the Railway Labor Act, 45 U.S.C. § 156, was served by either party with respect to jet crew com- plements. y The Union’s Adamant. Refusal To Bicgiin Pursuant to Section 6 notices, which were served .. by the parties on July 27 and 28, 1967, the subject of crew complement for Piedmont’s forthcoming jets was raised at bargaining sessions in the Fall of that year (Bradley, pp. 1-2, §§3-5). The Union's initial proposal was accompanied by “assertions that com- pulsory policy of the Union as established in its by- _law ‘bound’ its negotiators to refrain from bargaining = - for operation of the Boeing 737 by a two-man crew” (Bradley, p. 2, 95). Thereafter, the parties met in numerous bargaining sessions up to July 24, 1968 (Bradley, pp. 2-3, 96). Throughout all of these sessions, the Union’s negoti- ators consistently, steadfastly and repeatedly advised the Company that they “would not bargain for a crew of less than three men, because the Union’s constitu- tion and by-law policy forbade such bargaining over that subject” (Saunders, p. 6, §11; Tadlock, p. 2, §3; Bradley, pp. 1-4,9§2, 5, 7). During these meetings the Union’s chief negotiator admitted to Piedmont repre- sentatives that even “. . . if the committee signed a 4 v two-man contract with Piedmont, such contract ' would be rejected by the Union’s President” (Saun- ders, p. 6, §11). None of the foregoing has been denied by the Union. Finally, on July 24, 1968, it was agreed that bar- gaining sessions would be suspended pending a de- cision on arbitration of a similar issue between the Union and United Air Lines. That agreement pro- vided that in the event the arbitration decision re- '. quired a three-man complement on United planes, Piedmont and,the Air Line Pilots Association would “reopen negotiation[s]. under the’ provisions of the Railway Labor Act for 3-man operations and rates of pay” ( Shipton, Exhibit B; Saunders, p. 9, 918). _ The United arbitration decision was handed down in two parts on February 10 and 22, 1969. This deci- sion left the issue unresolved and called for further evaluation and a new arbitration in the event agree- ment was not reached between United and the Union (Kozak, Exhibits D and E). Shortly after issuance of that decision, meetings were resumed between Piedmont and the Union. However, the Union continued in its flat refusal to bargain, adding as an attempted justification for such refusal, a claim that it understood the July 24 agree- ment to constitute a requirement that Piedmont was bound to operate with a three-man crew without bar- gaining (See Savelson, Exhibit A, p. 3, allegation 12). In the Spring of 1969, pilot unrest over the failure of the parties to ‘settle the issue became intensified 5 to a point that the Union felt it necessary to make an explanation. On May 20, Master Executive Council Chairman Kozak wrote a letter to all pilots (Tadlock, Exhibit C). Kozak, acknowledging that the crew com- plement .issue was a serious problem, quoted the Union’s “mandatory crew manning policy” and the constitutional restriction which limited decision-mak- ing power of union negotiators to those items not “provided [for] elsewhere in the Constitution and By-Laws.” After listing the penalties for disobedience of the Union’s policy, Kozak summarized: “These are just the hard, cold facts. . . . Our latitude in resolving this particular problem is see! limited.’ ts The Union’s Lawsuig F or “Aypach of Contract” On the basis of its. ‘claim that Piedmont was bound to a, three-man crew by.the July 24, 1968 agreement, the Union instituted suit in the United States District Court-for the District of Columbia on June 30, 1969 (Savelson, Exhibit A). In its complaint, the Union characterized that document as a “collective bargain- ing agreement” which required “that Piedmont’s Boeing 737 aircraft would continue to be operated with a three pilot crew” (Savelson, Exhibit A, p. 3,. §911-12). With its complaint, the Union moved for a preliminary injunction“. . . directing defendant [Piedmont] to operate Boeing 737 aircraft with a three pilot crew complement” (Savelson, Exhibit A, p. 9, §1(b) ). That motion was denied by Judge Corco- ran upon affidavits and without testimony or oppor- tunity for presentation of testimony and cross ex- 6 amination of witnesses (Savelson, p. 2, 94; Exhibit F). Piedmont has never sought any relief on its pleadings in the District of Columbia case and there has been no hearing on that subject. 3 oe | The Proceedings Before The Pal Below. The instant case was initiated in the District Court in North Carolina upon complaint of Piedmont that #he Union’s unilateral action in ordering that jet aircraft be flown only by minimum crews of three pilots, coupled with its refusal to bargain on the subject, was a direct violation of the requirements of © Section 2 of the Railway Labor Act, 45 U.S.C. §152. There has been no testimony or cross examination of witnesses in the case.' Piedmont’s motion for a pre- liminary injunction was granted upon the basis of documentary evidence and affidavits only. The Union moved for a stay of the injunctive order. In denying such motion, the District Judge offered the alternative of: an expedited trial on the merits. The Union rejected’ the Court’s offer (App.,? p. 1) and elected to appeal immediately. The Court of Appeals below “accelerated this inter- locutory appeal” (Pet. App.,’ p. 2a) and amended the 1By tacit consent of the Court and the parties, Section 7 of the Norris-LaGuardia Act, 29 U.S.C. $107, requiring testimony in open court was waived (Appendix to the Petition, p. 6a, fn. 7). ?Appendix to this brief. 7 SAppendix to the Petition for Certiorari. ae District Court’s order by adding “. . . as a condition to injunctive relief, maintenance of working conditions and established practices in existence before the strike, including three-pilot crews and the rate of pay in effect on July 20, 1969” (Pet. App., p. 9a). Thus, that part of the order accords to the Union precisely the same relief which it sought in its motion in the District of Columbia case. : SUMMARY OF ARGUMENT This Court does not disturb factual determinations of lower courts in cases where there is no showing: of very obvious and exceptional error. No such error has been shown to exist in this case. The composite findings of the District Court and the Court of Appeals below that the Union violated the compulsory bar- gaining requirements of the Railway Labor Act are supported by an abundance of evidence which, for the most part, is uncontradicted. The Air Line Pilots Association, therefore, is bound by that factual deter- mination on this interlocutory appear. As amended by the Court of Appeals, the injunctive order bars removal by Piedmont Aviation, Inc. of the disputed third crewman from its jet equipment. The Union has sought precisely such an order against Piedmont in a lawsuit of its own in the District Court for the District of Columbia. In that case, the Union contended that the status quo ante should be main- tained until the rights of the parties had been adjudi- 8 cated. That is exactly the purpose and effect of the . order for which the Union now petitions this Court for a writ of certiorari. - The Court of Appeals remanded the case with di- rections for the District Court to resolve the thresh- . hold question of whether the Court has jurisdiction. Resolution of that issue, as well as other unsettled issues in the case, could result in a disposition of the controversy without a trial on the merits. Accord- ingly, the case is not ripe for review by this Court and thé petition is premature. | There is no authority from any source which sup- ports the Union’s contention that a finding that it __ has refused to bargain was precluded in this case by ‘obiter dictum ‘of the District Court for the District of Columbia in the Union’s case, which recited that “the parties” have bargained in good faith. The Union’s assertion that the decision in this case is in conflict with decisions from other -courts of appeals is without any foundation. It cites only two cases involving-the Railway Labor Act' to support . its contention. In each of those cases, the Court: of Appeals for the Second Circuit held that no injunc- tion should be granted because, and only because, it was found that the union had not failed to bargain in good faith, which is precisely contrary to the find- ing of the Courts below in the instant case. ~ 1Chicago, Rock Island and Pacific R. R. v Switchmen’s Union, ‘292 F. 2d 61 (2nd Cir. 1961); Pan American World Airways, Inc. v. Flight Engineers Int'l. Ass’n., 306 F. 24.840 (2nd Cir. 1962). ee 9 All other cases cited by the Union’ to support its claim that’ conflict exists involved procedural .ques- tions of venue only. In each of those three cases, the court of. appeals. reviewed a discretionary ruling of the district court and in each the result was controlled by the facts.peculiar to that case. In-this, case, the discretionary ruling of the District Court has been _ reviewed and sustained by the Court of Appeals. There is.no conflict with the decisions from other circuits, and it is well settled that this Court will not review such devisions. » Issuance of the injunctive order below is in accord with, and is fully supported by, pronouncements of this Court and numerous decisions of various courts of appeals and district courts. These decisions uni- formly hold that the Railway Labor Act takes prece- . dence over the Norris- ‘LaGuardia Act and refute the Union's contention that the District Court was pre- cluded by the Norris-LaGuardia Act from issuing the injunctive order in this case. | ARGUMENT I. There Is No Reason For Issuance Of A ~ Writ Of Certiorari The central, all-pervading and ultimately deter- minative question in this case is whether the Union 1Hilton Hotels Corp. v. Weaver, 325 F. 2d 1010 (D. C. Cir. 1963); Crosley Corp. v. Hazeltine Corp., 122 F. 2d 925 (3rd Cir. 1941); Brotherhood of Locomotive Firemen & Enginemen v. Central of Georgia Ry.; 411 F. 2d 320 (Sth’Cir. 1969). ~? 10 fulfilled its collective bargaining obligations under Section 2 First and Second of the Railway Labor Act, 45 U.S.C. §152 First and Second, and thereby ex- hausted all remedies therein provided, before it took strike action against’ Piedmont. The injunctive order of which the Union complains was issued to preserve the status quo“ante pending resolution of that crucial question by the Court below. : Yet it will readily be observed that the Union has not even addressed itself to that question in its peti- tion to this Court. The Union, instead, has avoided. the real issue and has proceeded throughout ‘its pe- tition on the totally unwarranted assumption that it has been judicially established that the Union bar- gained collectively and in good faith at all times and has thereby exhausted all remedies provided for in the Act. Its often repeated naked assertions that all such remedies have been fully exhausted are coupled with a recitation to the Court of mere contentions of the Union, as if they were judicially-established fact. The end result is a petition which presents to the Court hypothetical questions which bear little resem- blance to the real issues involved. A. The Petition Is Premature Throughout its petition, the Union treats the case as if Piedmont is authorized by the existing order to remove unilaterally the third crew member from its jet equipment and, if it does so, the Union would have no recourse whatever. The true facts are to the contrary. | 11 As has been noted, shortly before institution of this case, the Union filed suit in the District of Columbia, seeking an injunction “directing defendant [Pied- mont] to operate Boeing 737 aircraft with a three pilot crew complement . . .” until expiration of the United Air Lines contract with the Union on March 2, 1970, five weeks hence. The objection most vigor- ously urged by the Union upon the Court of Appeals for the Fourth Circuit was its claim that the injunc- tion issued by the District Court in North Carolina unfairly authorized unilateral action by Piedmont while at the same time it prohibited retaliatory action by the Union. The Court of Appeals granted relief to the Union by adding the condition, quoted above, that Piedmont shall only operate its jets with three- man crews. The obvious effect of the condition attached by the Court of Appeals was a nullification of all that por- tion of the District Court’s injunction to which the Union actually had objections. The aircraft are now flying with three-man crews and at rates of pay which were in effect before the strike and litigation. If Pied- mont should elect to remove the third pilot from its airplanes, the Union would be completely free. to resume its strike as if no court order had ever been entered. } As matters now stand, the sole compulsion upon the Union in the order of the Courts below is a prohi- bition against its taking unilateral action against Piedmont so long as the Company maintains the 12 | | status quo ante. But the Union has consistently assert- ed throughout all the litigation that it has no desire to strike and has repeatedly insisted that status quo ante conditions be maintained so that no strike would be necessary. For example, in the District of Columbia case, union counsel summarized that: “A preliminary injunction is necessary to pre- serve the status quo until a final decision can be made. The choice would seem to be unilateral ~ action by Piedmont with a response [or strike] by the pilots or an orderly process by which the par- ties can determine their respective obligations under the [July 24] agreement, and then go for- ward. “The pilots have opted at this time for a pre- liminary injunction to preserve the status quo so that each side will be fully aware of its legal ob- . . ligations and will be able to carry them out before’ any economic action or economic battle ensues on the airline” €emphasis added) (App., B.S): It appears, therefore, that what the Union actually is seeking in its petition for a writ of certiorari is a plotting of the course which the case shall follow when it comes to trial on the merits in the District | Court:below. The Union has not dealt with the ques- tion of why this Court should be expected to review the case at this time when the Union’s claims of immediate injury by the injunctive order in the Dis- trict Court have been adequately remedied by the’ % | | ee | ne of Appeals and when every question raised in the case may be mooted in the District Court upon the remand already ordered by the Court of Appeals. There are several saiicbaelcaaes in this case which could moot the issues upon remand. At least one such circumstance looms at the v ry threshhold and cer- tainly should be dealt with before any review is under- taken. by this Court. The parties have proceeded throughout on the theory that the case involves a “major dispute” under the Railway Labor Act. Both parties still contend that it is such a dispute. The fact remains, nevertheless, that the Court of Appeals found that “lurking in the shadows . . . is the suggestion made by the City of Roanoke, Virginia, amicus curiae, that the controversy is a minor dis. ‘pute” (Pet. App., p. 10a). It was decreed “therefore, [that] the district court should not ‘decide the case on its merits unless it is clearly shown . . . that the controversy is still a major dispute” (Pet. App., p. Ita). It was further directed that in the event the dis- pute is found to be.a “minor” one, it must be resolved ~ by the System Board of Adjustment through binding arbitration protedures provided for in the Act. ' Surely the Court should not be put to the’task of passing upén the merits of the case when it is so Qbvious that it may never reach a trial upon the mer- a . f . “We feel that we should not pass upon any of ‘_, the complicated and delicate questions involved _in the case... upon an appeal from a meré inter- j j 14 locutory injunction and upon the inadequate record now available, but should await the com- pletion of the hearing in the court below, at which time it will be possible to consider the questions upon an adequate record and avoid ’ a fragmentary hearing. . . .” ' Sims v. Central Trust Co., 123 F. 2d 89, 90 (4th Cir. 1941) “[A]s the case is yet to be heard . . . upon the facts, it is undesirable that we discuss the evi- dence or make statements with regard thereto which might be seized upon by the parties as in- dicating an opinion on our part as to how the case should be decided. The principles of law involved are important and difficult of applica- tion to the facts; and we should refrain from dis- cussing them until the case to which they are to . be applied is before us in final form.” | Meiselman v. Paramount -: Film Distributing Corp., 180 F. 2d 94, 96 (4th Cir. 1950) : B. There Is No Conflict Among The Courts Of Appeals All of the decisions of the courts of appeals ori the subject in question apply uniform legal principles to various sets of facts. The petitioner has failed to ac- cept the significance of Rule 19.1 (b) of this Court, which makes it plain that a conflict of circuits is created only when decisions are in conflict “on the | ' ' 15 ees | same matter.” Obviously, a conflict is not created when one court of appeals refuses to grant a preliminary injunction on one set of facts and another court of appeals grants a preliminary injunction on a different set of facts. | 1. The Asserted Conflict With Second ‘ Circuit Decisions ' | The Union contends that the Fourth Circuit's ‘de- cision in this case confliets with Chicago, Rock Island and Pacific R. R. v. Switchmen’s Union, 292 F. 2d 61 (2nd Cir. 1961). Such contention certainly would be received with shock in the Fourth Circuit, since that Court’s opinion evidenced careful study of the Chica- go, Rock Island opinion, and expressly followed that decision in the instant case. The Court cited the Chicago, Rock Island decision twice, approving the legal principles enunciated therein. But, at the sam time, it pointed out critical factual distinctions in t two cases. 3 | Moreover, in the Chicago, Rock Island ease, the Second Circuit expressly refused to pass upor/ the | question presented in this case. In that case, bargain- ing had actually resulted in agreement betweeyi\union and company negotiators. Even so)\the District Court found that a requirement of the Union’s cgnstitution that any agreement made by the union negotiators must be approved by a majority vote 4f the union membership, .coupled with the ee submis- sion of the agyeement to the union n embership with- out recommending approval, was unlawful. 16 In considering the case, the Court of Appeals for the Second Circuit hypothetically posed the question of whether an injunction might issue in a case where: — “(T]he claim is that although the motions specified by the Railway Labor Act were performed, the required spirit was lacking. Appellees argue with force that it is as much a violation of the Railway Labor Act to make only a token effort to comply with its prescribed processes as to strike without even the pretense; .. .” (emphasis added), Chicago, Rock Is- land and Pacific R: R. v. Switchmen’s Union, 292 F. 2d 61, 67 (2nd Cir. 1961). It would be difficult to find words which more pre- cisely or succinctly describe the issue which is raised in the instant case. Having found, however, that the plaintiff's evidence did not support its “claim” in the Chicago, Rock Island case, the Court ruled that “We find it unnecessary here either to affirm or.to deny that an injunction against a strike may be issued on such a claim, ...” (emphasis added), Chicago, Rock Island and Pacific R. R. v. Switchmen’s Union, supra, at p. 67; The Second Circuit went on to explain in detail that there was.no substantial evidence in the Chicago, Rock Island case to support the plaintiff’s claim or the District Court’s finding that the Union there had not bargained in good faith. The only evidence tend- ing to support the claim was the failure of union negotiators to recommend ratification of the negoti- ated agreement by the Union’s membership. 17 That case bears no resemblance to this case, where, A. for example, it is in effect conceded that the union negotiators have openly admitted to Piedmont repre- sentatives that “we have no authority to confer on crew complement, and on this issue of crew comple- ment our authority to negotiate has been withdrawn” (Saunders, pp. 5, 6, §11) and have repeatedly in- sisted that they were “bound” by the Union’s “man- datory and compulsory policy” to refrain from bar- gaining on the crew complement subject (Saunders, p. 6, §11; Tadlock, p. 2, §3; Bradley, pp. 1-4, 992, 5, 7). Further distinguishing the cases are the Union’s statement to Piedmont that even if a two-man agree- ment were signed, it would be rejected by the Union’s president (Saunders, p. 6, 911) and its declaration to its own member pilots that the authority of* its negotiators was “extremely limited” and, in effect, that such an agreement was blocked by mandatory union policy (Tadlock, Exhibit C). The Union labors at length over-its claim that a conflict exists. because, in construing Section 7 of the Norris-LaGuardia Act in the Chicago, Rock Island case, the Court of Appeals for the Second Circuit stated that a necessary prerequisite to injunctive re- lief is a showing that there has in fact been a violation and that is it not enough to show merely that the Act might have been violated. But that section of the Norris-LaGuardia-Act mere- ly limits injunctions to cases where there are “findings of fact by the court, to the effect — (a) That unlaw- ¢ ae RS 18 ful acts ... . have been committed . . .” (emphasis added ), Norris-LaGuardia Act 87, 29 U. S.C. §107. The composite findings and conclusions of the Dis- trict Court and the Court of Appeals in this case are fully in accord both with the express language of Sec- tion 7 and the pronouncement of the Second Circuit. The admissions of the union negotiators noted above were considered by the Court of Appeals to be clear “evidence that the Union did not bargain.” Accordingly, it construed the District Court’s order as a ruling “that the Union failed to negotiate in good faith as required by the Railway Labor Act” (Pet. App., p. 6a). Furthermore, the Court of Appeals expressly declared that “use of the by-law as an ex- cuse for refusal to bargain . . . is not consistent [that is, not’in compliance] with the Railway Labor Act’s provisions . . .” (Pet. App., p. 6a). It is difficult to see how this can be said to fall short of a finding that the Union has violated the Railway Labor Act. In apparent recognition that any defects in the. findings and conclusions of the District Court were cured by the Court of Appeals, the Union insists that _ this Court should focus its attention exclusively upon the language of the District Court, as if it had never been amended or passed upon by the Court of Ap- peals. But this Court has repeatedly turned aside ef- forts of litigants thusly to inject it into the fact-find-. ing processes of lower courts. “(T]he probative sufficiency of the testimony has the support of the district court . . . and of . : 19 the circuit court of appeals. It would take some- thing more than ingenious criticism to bring even into question that concurrence or to detract from its assuring strength, .. .” Delaney v. United States, . 263 U. S. 586, 589-590 (1924), quoted in United States v. Johnson, 319 U. S. 503, 518 (1943) “The petitioner asks us to reject as ‘clearly erroneous’ the factual conclusion . . . reached by the District Judge and accepted by the Court of Appeals. In order to do so, we would be forced to disregard this Court's repeated pronounce- - ment that it ‘cannot undertake to review con- current findings of fact by two courts below in the absence of a very obvious and exceptional showing of error.’ . . . For there was no ‘very ob- vious and exceptional’ error in the conclusion of the two courts below... .” : Berenyi v. Immigration and Naturalization Service; 385 U. S. 630, 635 (1967) This presumption of validity of concurrent factual determinatiorfs is clearly applicable to Railway Labor Act éases. Virginian Ry. v. System Federation No. 40, 300 U. S. 515, 542 (1937); Texas & New Orleans _ R.R: v. Brotherhood of Ry. &-S. S. Clerks, 281 U. S. 548 (1930). 20 What has been stated. about the Chicago, Rock Is- _land case is also true of the Union’s claim that the instant case is in conflict with the decision of the Second Circuit in Pan American World Airways, Inc. v. Flight Engineers Int'l. Ass’n., 306 F. 2d 840 (2nd Cir. 1962). It is axiomatic, of course, that the duty to bargain does not require concession or agreement. The Pan American World Airways case. merely fol- lowed that axiom in finding no refusal to bargain. That case has no bearing where, as here, a union has unilaterally determined in advance that there will be ~ no bargaining with respect to a bargainable issue and has consistently and adamantly enforced its unilateral determination. The remaining cases as to which the Union claims there is conflict deal, not with labor law as such, but with the discretionary: authority of rower courts in disputes over venue. $ s 2. Procedural Cases From Other Circuits Prior to the hearing in the District Court below, the Union moved that the case be transferred to the District of Columbia (Motion, August 8, 1969). Such motion was based upon venue considerations and the Union’s contention that its case in the District of Columbia raised issues identical to those raised in the Company's case. : Piedmont responded with uncontradicted proof that its corporate existence, as well as the center of its operations, was at Winston- Salem, North Caro- lina; that practically all ‘witnesses who would be in- 21 volved in the case resided in the Winston-Salem area; that all of the bargaining sessions with which the case was concerned were held at that location; that for many years grievance procedures and arbitration cases before the System Board of Adjustment invari- ably have been held in Winston-Salem; and that Piedmont had not sought, and would not seek, any affirmative relief in the Union’s District of Columbia action (Bradley, Reply ). It was shown to the satisfaction of the District Court, moreover; that it was the sole\ purpose of the Union’s District of Columbia action \to test the Company's: right to take unilateral action\ and that the question of whether the Union had a right to take such action was never mentioned in the plead- ings, or evidence, or affidavits, or arguments\in the Union’s case. It was conceded that at the Ae of the hearing in the District of Columbia there was no strike by the Union and no voiced threat that a strike _ would be called. Further, it was proved that whereas ~ the Union’s action was for declaratory and injunctive relief upon an alleged contract, the purpose of the instant case was to test the validity of the Union’s strike activities before it had ever made any éffort to reach agreement with Piedmont. Upon the basis of these considerations, the District - Court, in the exercise of its discretion, refused to transfer this case to the District of Columbia. The authorities amply support that decision. : 22 “The transfer of pending civil cases from one district to another is governed by 28 U.S.C. §1404(a) which provides ‘(a) for the conveni- ence of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.’ The burden of estab- lishing that the suit should be transferred is upon the movant and unless the evidence and the, cir- cumstances of the case are strongly in favor of the transfer the plaintiff's choice of forum should not be disturbed. The transfer lies within the sound judicial discretion of the trial judge and his determination should not be rejected unless the appellate court can say there has been a clear abuse of discretion.” y ss Texas Gulf Sulphur Co. v. Ritter, 371 F. 2d 145, 147 (10th Cir. 1967). See also: Toti v. Plymouth Bus Co., 281 F. Supp. 897 (S.D. N.Y. 1968); Blue Diamond Coal Co. v. United Mine Workers, 282 F. Supp. 562 (E.D.: Tenn. 1968); New York Central R. R. v. United States, 200 F. Supp. 944 (S.D. N.Y. 1961); Mazinski v. Dight, 99 F. Supp. 192 (W.D. Pa. 1951). '. The cases cited by the Union as being in conflict on this question certainly present no inconsistency of a sort which could invoke the jurisdiction of this Court on writ of certiorari. In Hilton Hotels Corp. v. Weaver, 325 F. 2d 1010 (D.C. Cir. 1963), on the . . * basis. of “comity” only, the Court of Appeals for the 23 District of Columbia Circuit deferred to the Court of Appeals for the Third Circuit .and refused to “reex- ~ amine” the latter Court’s resolution of identical is- sues. | In Crosley Corp. v. Hazeltine Corp., 122 F. 2d 925 (3rd Cir. 1941), the Court of Appeals for the Third Circuit expressly based its decision on the conclusion that the district court, “having the power to issue [a preliminary injunction to protect its jurisdiction] abused its discretion in refusing to exercise that power.” Id. at 930. Likewise, in Brotherhood of Locomotive Firemen & Enginemen v. Central of Georgia Ry., 411 F. 2d 320 (5th Cir. 1969), the Court of Appeals found abuse of discretion in the district court’s refusal to transfer the case to another district court where the plaintiff had already secured an in- junctive order identical to the one sued for in the later case. At most, those cases differ from the instant case only in the outcome of the procedural questions pre- sented. And, in each case, the outcome hinged, not upon conflicting interpretations of legal questions, but upon factual considerations peculiar to the case itself. Thus, with its assertions that this Court should take cognizance of such alleged “conflict,” the Union again seeks to inject the Court into a. review of the evidence and the inferences drawn.from it by the Courts below.. - _24 I. The Courts Below Were Not Bound By The Obiter ' Diectum Of The District Court For The ; ~ ___ District Of Columbia As is noted in the appendix to the Union’s petition, | the District of Columbia Court denied the Union’s motion for an injunction enforcing the’ alleged con-_ tract for the following reasons, announced at the ~ close of the hearing: . “<< . Congress has in effect instructed the Courts not to intervene in these labor disputes unless there is some very obvious legal question, or some legal reason for coming into them. “T think [that] before I could step in and grant an injunction . . . I would have to be convincéd . that there was a definite substantial legal issue in which the petitioner [plaintiff] had a very good chance of success. “I don’t find that chance of success in this case. I am not convinced that there is a legal is- sue left in the case. So, I am going to deny the preliminary injunction” (Pet. App. E). Later, that Court entered a written order and, even though no findings of fact were made‘on the subject, the Court adopted a so-called “conclusion of law,” suggested by the Union, which stated that “the par- ° ties have, under the provisions of the Railway Labor Act, engaged in good-faith negotiations . . .” (Pet. App., p. 6d, §2). r aes \ . ’The Court’s decision being in favor of Piedmont, it is elementary, of course, that Piedmont could not possibly appeal from reasons advanced by-the Court for ruling favorably to the.Company. Yet, the Union insists| that, regardless of whether or not it in’ fact refused: to bargain with Piedmont, judicial inquiry into the subject is forever barred by the interlocutory dictum |of the Court in that case. Otherwise stated, the Union is advancing the amazing proposition that a litigant’s rights as to the merits of a: case may be established adversely to him by recitations volun- - teered in a preliminary order in which he has pre- vailed and from which no appeal can be taken by him! The reason and logic which so clearly refute the Union’s novel contention are fully supported by num- erous court precedents. In the first place, the doctrine of “the law of the case” applies only where two dif- ferent judges rule upon the identical question in the same case, e.g., Bowles v. Wilke, 175 F. 2d 35 (7th Cir. ), cert. den., 338 U. S. 861 (1949). But it is not ’ necessary for Piedmont to rely on that fact alone to sustain its position. » Even if the orders of Judges Corcoran and Gordon 3 had been entered in the same case, the Union’s con- tention could not be sustained. Judge Corcoran’s “conclusion” on the subject of bargaining in the breach-of-contract case was nothing more than obiter dictum which could not serve as a bar to a subsequent finding to the contrary. Since’at least as far back as 1821, this Court has considered that: . , , a 26 “It is a maxim not to be disregarded, that gen- eral expressions, in every opinion, are to be taken in connection with the case in which those. ex- pressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the © ' very point is presented for decision. The reason. of this maxim is obvious.” | Cohen v. Virginia, 6 Wheat. 264, 399 (1821) See also: Osaka Shosen Kaisha Line v. United States, 300 U. S. 98 (1937); Wright v. United States, 302 U.S. 583 (1938). Moreover, even if the question had been squarely - presented to Judge Corcoran on a preliminary motion such as the Union's, his interlocutory ruling would not have barred a second order in conflict with his first decision. “In the absence of statute the phrase, ‘law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the prac- tice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Messinger v. Anderson, 225 U. S. 436, 444 (1912) “[The rule of the law of the case] is not appli- cable here because when the case was first re- soe - 97 manded, nothing was finally decided. The whole ie proceeding thereafter was in fieri. .. . This was an interlocutory order that was appealable be- cause Congress, notwithstanding its interlocu- . tory character, had made it appealable: 28 USCA §1253, FCA title 28, §1253. The appellants might * have appealed, but they were net bound to. We think that it requires a final judgment to sus- tain the application of the rule‘of the law of the | case just as it does for the kindred rule of res judicata. Compare United States v. Wallace & Tiernan Co. 336 US 793, 800, 801, 93 L ed 1042, 1049, 1050, 69 S Ct 824. And although the latter is a uniform rule, the ‘law of the case’ is only a discretionary rule of practice. It is not controlling here. United States v. United States © Smelting, Refining & Mining Co., 339 U. S. 186, 198-199, reh. den., 339 U.S. 972 (1950) “There is sound reason for the rule that the decision of either the trial or appellate court in © granting or denying the temporary injunction does not constitute the law of the case and will not estop the parties nor the court as to the merits of the case....’” Hunter v. Atchison, T. & S. F. Ry., 188 F. 2d 294, 299 (7th Cir. 1951 ) See also: Bowles v. Wilke, 175 F. 2d 35 (7th Cir. 1949). 28 a ae Ill. The Decision Below Is Entirely ‘Consistent With Principles Enunciated By This Court ‘And Is Fully Supported By Other Court Precedents The state of the record is such that the Union’s position on the merits necessarily is based upon the premise that the Union is authorized to dictate uni- laterally in advance what a rule or condition of em- ployment will be and then to meet with the carrier only to advise that its directive cannot and will not be changed, thus marking time until the calendar runs _out on Railway Labor Act procedures — and, that ip-all of this the Union shall be free from any legal sanction. Court precedents uniformly refute that proposition. : 2 / In the landmark case construing Section 2 of the Railway Labor Act, 45 U.S.C. §152, and directing a carrier to “treat with” and “exert every reasonable effort to make and maintain agreements” with the representative of its employees, this Court stated: “It is, we think, not open to doubt that .Con- gress intended that this requirement [to bargain] be mandatory upon the railroad employer, and that its command, in a proper case, be enforced by the courts. .. . Neither the purposes of the later Act, as amended, nor its provisions when read, as they must be, in the light of our decision in the Brotherhood of R. & S. S: Clerks Case, 281 U. S. 548, 74 L. ed. 1034, 50 S. Ct. 427, supra, lend support to the contention that its enact- ments, which are mandatory in form and capa- fiery, © "we i 29 ble of enforcement by judicial process, were in- tended to be without legal sanction.” Virginian Ry. v. System Federation No. 40, 300 U. S. 515, 545 (1937) Very recently this Court emphasized that the duty imposed by Section 2 First rests equally upon car- riers and unions: — “The heart of the Railway Labor Act is the duty, imposed by §2 First upon manage- ment and labor, ‘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’ ” (emphasis added), Brotherhood of R. R. Trainmen v. Jacksonville Terminal Co., 394 U. S. 369 (1969). This Court further emphasized that in order to ex- haust the procedures which ultimately can lead to authorized unilateral action: — “A party desiring to effect a change of rates of pay, rules, or working conditions must give advance written notice [, §6, and] must confer, §2 Second, . . .” In addition, the Court pointed out that “while the dispute is working its . way through these stages, neither party may unilat- erally alter the status quo. §§2 Seventh, 5 First, 6, 10” (emphasis added ), Brotherhood of R. R. Trainmen v..~ Jacksonville Terminal Co., supra, at 377-378. _ ae 30 ; The actual power of the Petitioning Union to en- force its unilateral mandatory order with’ respect to crew complements on twin-engine jets should not be doubted — such order was tatally effective. Of the 438 twin jets now in service on the airlines, 348 are being flown with two-man crews. But all of these within the Union’s jurisdiction are being so operated only because the Union earlier gave its consent and approval. Piedmont’s principal competitors are in this category (Saunders, p. 7, §12; Saunders Supp., p. 2, 94). Among the ninety remaining twin jets, not one | of those covered by the Union’s edict has flown with fewer than three crewmen since the Union’s order was issued in 1966. | The.Union undertakes to justify its mandatory order with the argument that it is interested in safety and that, as to its “revised pilot crew complement policy . . ., there never has been any substantiated contention that this was based on other than safety considerations” (Pet., p..6). But that in no way justi- fies the Union’s refusal to, bargain with Piedmont on the subject. The carrier certainly has a legitimate - interest in air safety. Indeed, it has no alternative. 'In controverting this assertion, Piedmont has challenged the Union in bargaining (Bradley, p. 3, {| 7; Saunders, pp. 6, 7, {| 12, p. 8, § 15), and throughout this case, to justify its discrimination between the twin jets on which it has agreed to place two crew- men and those which it has refused to fly with less than three crewmen. That challenge has been ignored a as 31 In regulating safety in air commerce, Congress ad- monished the Federal Aviation Agency that: “In prescribing standards, rules, and regu- lations, and in issuing certificates under this subchapter, the Administrator shall give full consideration to the duty resting upon air car- riers to perform their services with the highest possible degree of safety in the public interest” (emphasis added). : _ Federal Aviation Act of 1958, ( §601(b), 49 U.S.C. §1421(b) Congress certainly did not intend to permit the - Union to set itself up as a dictator of air safety poli- cies. “The F ederal Aviation Act of 1958 (49 US. C.A. §§1301-1542), imposed upon the [Admini- strator] the duty and responsibility of promul- gating rules and regulations to provide ade- quately for the highest possible degree of safety in air commerce. The Administrator, is directed to exercise and perform his powers and duties under the Act in such manner as ‘will best tend ' to reduce or eliminate the possibility [emphasis by the Court] of, or recurrence of, accidents in’ air transportation.’ 49 U.S.C.A. §1421(b)” (em- —_ — Air Line Pilots Ass'n. v. Quesada, 182 F. Supp. 595, 598 (S.D.N. Y.), aff'd., 276 F. 2d 892 (2nd Cir. 1960) 32 ' Although the Federal Aviation Agency has auth- orized operation of all twin jet aircraft in question with two men and has directed that any additional crewman, shall not be assigned any duties other than monitoring the company radio, the Union argues that -it is free to bargain for more stringent safety policies than are provided for by that Agency. That may: well be true, but the point is that the Union refused to bargain on the subject — and its right to bargain in no way excuses its refusing to do so. — A primary defense of the Union is its claim that ._ the procedures of the Act were “fully exhausted” by its attendance at bargaining sessions with Piedmont, notwithstanding its flat refusal to consider any al- . _ternative to its mandatory policy during these meet- _ ings. It is elementary, of course, that perfunctory - x gestures do not fulfill the good-faith. bargaining re- quirements of the Act. “To ‘effectuate the purposes of the [Railway - Labor] Act.and to prevent a mockery of its re- — quirements such efforts [to resolve the dispute] must be: ‘reasonable and made in good faith and not simply to satisfy perfunctory compliance.” Long Island R. R. v.. Brotherhood of R. R. Trainmen, “ 185 F. Supp. 356, 358 (E.D. N.Y. _ 1960) 3 a ee “If compliance with the [Railway Labor] Act need only be perfunctory; the congressional man- 33 date would be defeated and: the aia of the Act rendered nugatory.” ‘| ‘Pan American. World Airways, Inc. v. Brotherhood of Ry. and S. S. Clerks, 185 F. Supp. 350, 353 (E.D. N.Y. 1960) » “The bargaining required by the Act dots not mean mere talk withthe purpose of avoiding agreement, but a, good faith effore- to. reach agreement. . _ N atonal Labor felonies Board v. Darlington Veneer Co., 236 F. ad 85, 88 (4th Cir. 1956) “(T]he duty’ to bargain in sie faith is not: satisfied by merel? meeting with union represen- tatives to inform them that the employef cannot ° or will not change its position.” | National Labor Relations Board v. Israel Putnam Mills, 197 F. 2d 116, 117 (2nd Cir. 1952) ~. “Collective bargaining means something more | _than mere talk by those who have decided in ad- vance not to bargain at all with respect to so.vital a matter as the rate of wages and to reserve to . " .: 0, =, Legions of cases have consistently held this to be true even under the less demanding bargaining re- “quirements of the National Labor Relations Act. 5 34 themselves the right to control same by unilateral action. National Labor Relations Board v. | Berkley Machine Works & Foundry Co., 189 F. 2d 904, 907 _ (4th Cir. 1951) “The Board's position is that an ‘employer who insists upon reserving the right to act unilaterally and of its own will alone upon matters involving legitimate collective bargaining and denies the employees any contractual provision for oppor- tunity to bargain collectively with regard thereto thereby refuses to bargain collectively within the meaning of the Act.” 3 Singer Mfg. Co. v. National Labor Relations Board, 119 F. 2d 131, 136 (7th Cir. 1941) “Applying the rule here, we think the circum- stances of this case support the Board’s finding that the employer, while freely conferring, did not approach the bargaining table with an open mind and purpose to reach an agreement con-- sistent with the respective rights of the parties.” Majure v,. National Labor Relations eee Board, 198 F. 2d 735, 739 (5th Cir. Ae A 1952). | Finally, it is argued by the Union that the Norris- LaGuardia Act. has placed *the’ Union beyond the reach of the courts. Such argument has been refuted “completely and repeatedly in court precedents. ~ ¥- @& 35 “We hold that the Norris-LaGuardia Act can- _ not be read alone in matters dealing with railway | labor disputes. There must, be an accommodation ** of that statute and the Railway Labor Act so that ‘the obvious purpose in the enactment of each . is preserved. ” : | “(T]he specific provisions of the Railway Labor Act take precedence over the more general pro- visions of the Norris-LaGuardia Act. “