Petition for Writ of Certiorari — Bangor & Aroostook Railroad v. Brotherhood of Locomotive Firemen & Enginemen

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| Office Supreme: Coort, US.

: . FILED

tA 21 1970

IN THE

SUPREME COURT OF THE UNITED pees

OCTOBER TERM, 1969

No. — ‘1epy

v's

BANGOR AND AROOSTOOK RAILROAD COMPANY,

ET AL., Petitioners,

Vv. | a

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND

ENGINEMEN, Respondent. _

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT.

Sub & GARDNER FRANCIS M. SHEA

734 Fifteenth Street, N.W. ‘Ricuarp T. Conway

Washington, D.C. 20005 Witu1am H. Dempsey, Jr. *

of Counsel. - 734 Fifteenth Street, N.W.

‘3 Washington, D.C. 20005

James~A. WiLcox +

1225 Connecticut Ave., N. w. : ; |

Washington, D..C. 20005 <

Attorneys for Petitioners.

ctteeteneenien eee ee

nate alata ites sistem dtl. tines

“2?

INDEX

TaBLE or ConTENTS |

Opinions Below............ + CT Recah ey

Juiisdiction ....... tee Cs ae ees”

Questions Presented ........°... 6... Sot ken

Statute Involved... __. Ba hooky Baie Pep rd Sra oe ee

Reasons for Granting the Writ..... Sete aac ee

I. The Relationship Between the Railway Labor :

Veneinneon: ee een Ree ONS Fins

ee erent ee er ree ear beet

AppenMx Boe. 3.6): Pireceeeas PE Seared pe et tee Tet

apne tS Se. epee SME Be Pc eles ras ie

Appendix D...:..... are eg iy yee SEEM), SUC

TABLE OF CITATIONS ..

Cases: Saree

Akron d Barberton Belt R. Co. v. Brotherhood-of R.

Trainmen, 250 F. Supp! 691 (D. D.C., 1966), supple-

mental opinions, 252 F. Supp. 207 (D. D.C., 1966),

293 F. Supp. 538 (D. D.C., 1966), 254 F. Supp. 306

Cases—Continued Pave

Brotherhood of Railroad Carmen v. Chicago & NAW.

“Ry. Co., 354 F. 2d:786 (8th Cir., 1965) .\......3.... 21

Brotherhood of Railroad Train. vy. Denver & R-G. W.

R. Co., 290 F. 2d 266 (10th Cir, 1961)... .. f. 2)

Brotherhood of Railroad Traimmen v. Akron & B. B.

R. Co., 385 F. 2d 581 (D.C. Cir.,, 1967)... 0... O74 Ti,

14, 21, 29, 23

Graham y. Brotherhood of Firemen, 338 U.S, 282

Lo EOE ieee Et. Say Gye NO ry oe en 17,18

eae ‘Engineers v. B. é 0. R. Lo., 372 U.S. 284

RS ks ce Cyn oa eats erica hace Mawel Sra eagre tha Mee 5)

Locomotive sea hat L-@€°N. &.-Ce., Sis US 3a

Wee dae. Aa 4,19

Locomotive Engimeers v, U. ug LT. R. Co., 363 U a 528

Pel. i es ee ay ae ween 19

Piedmont Av iation; Inc. Air Line Pilots Ass’ n, In-

ternat’l, 416 F. 2d 635 (th C3 eg 2) 21.

Railroad Traimmen v. How ard, : 343 U.S. 768 (19. 52). ee Se.

Railroad Trainmen &. Terminal Co., 394 U.S. 369

Re ieee etn ee bee ee 4

Railway Clerks v. Florida E.C.R. 384 US. 238

Oe a ee rere rite ME araaliy nee ea al 4

Rutkand Railway Co. v. Brotherhood of Loc omotive

Eng. PA te ee A a BOER ec is ask 21

S. Anargyros v. Anargyros i Co., 191 F. 208 (1911) 25

Salvage Process C orp. hs Acme Tank Cleaning Proc-

°ess Corp., 86 F. 2d 7 7 (1936)....... eae 25

Telegraphers v. caine &-N.W. R. Co., 362 US. 330,

CNR ee ee amie dices Re eae re eee 19.

Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) 9

Trainmen v,. Cpepe? R. é& LR, Co., 353 U.S. 30 ;

‘2s yf Saree SP ab Coed Neth lea tore Baits Aen ee

Trammen v. Toledo, Pp. ¢ Ww. R. Co., 321 U.S. 50 Ey

Ca ia ie nae eng ere SL 19

United States v. Mus Workers, 330 US. 258

(1947) FRIESE Naan Goa Ue Pl doe apes ean SR ~...14, 20

V irginian Ry. ve BF desiieon, 300 U.S. 515 (1937). .16, 17,18

Worden v. Searls, 121 U.S. 14 ( (1887) Cee Eee ese

92 26° 4

] aw

III

who S109 Com I

Statutes: ° | | a ga

Norris-LaGuardia Act:

Section 4; ........ entree Paxt ice a 16, 17, 20, 24, 25

» ieetioned 7... Neate ps eek are ¢* ay ay om 21

Section 8:.°..... Pye, Kae eee 2, 16, VW, 19, 20), 21, 25, 27

cee PEED Vie he Bag pS Se 16, 17, 20, 21

In. general BARE cca renee RTEL By doa to ee Soe Oo Cea 15-23, 2 27

Public Law 88-108: ° ~ | ‘

casa ee Cet e! oe Fen thay ea Re tena

Ss aa, 3 Oa a eee TP ees eta gi a Nae Aurea ee

We OR Se ee es ge te gees

Railway Labor. Act: : can ahs

Bech NM a ee es eee acta mS

Sik i ne ee ieee ete a Sin a :

Rite to ee. Fink fan oe Sak ettorca

PRLS Ee cc ae ea: te igi Se eee

In general... ... See ay Ruse Tal hee ee eo 15-23, 2

aE OR) ag ae a a Ce

28 USC. $1661 -... ete Pe pe ean ae 1

Miscellaneous:

Opinion of Neutral Members, 41 Labor Arbitration

Oi ss ee Cee, aes 4

IN THE

SUPREME COURT OF THE UNITED STATES |

OCTOBER TERM, 1969

No.

BANGOR AND AROOSTOOK RAILROAD COMPANY,

ET AL., Petitioners,

Vv.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND

mibiesraeap sack, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

Bes oe CIRCUIT. .

Petitioners pray that a writ of certiorari issue to review

an order of the United States Court of Appeals for the Dis- .

trict of Columbia Circuit entered in the above-entitled case

on February 28, 1969. 7 .

Opinions Below

The opinion of the District Court, delivered orally on May

28, 1968 and not officially reported, is set forth in Appendix

A hereto. The February 28, 1969 opinion of the Court of

Appeals, not yet officially reported, is set forth in Appendix

B hereto.

- Jurisdiction

The order of the Court of Appeals, set forth in Appendix

C hereto, was entered on wereery 28, 1969. A timely peti- .

(ay

a: .

tion*for rehearing was denied on October 23, 1969, in an

order set forth in.Appendix D hereto.’ The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

. ee Questions Presented ;

1. Is Section 8 of the Norris-LaGuardia Act applicable to

a proceeding for an order temporarily restraining a Strike

. allegedly in violation of the Railway Labor Act pending a

hearing on a motion for preliminary’ injunction?

‘2, Assuming that the District Court erred in holding that —

Section 8 of the Norris-LaGuardia. Act is inapplicable to

such a proceeding for a temporary restraining order and;

therefore, in not hearing evidence ¢oncerning compliance

with Section 8 or determining whether a temporary restrain-

ing order should-be issued under the circumstances despite

noncompliancé with Section 8, dees such error prevent per-

sons damaged by strikes in contemptuous violation of the:

temporary restraining order issued by the District Court

from recovering their damages in a compensatory contenipt.

proceeding ?

oe Statute Involved

Section 8 of the Norris-LaGuardia Act, 4 Stat. 72, 29

US. (’. $ 108, provides that:

‘‘No restraining order or injunctive relief shall be

granted to any complainant who has failed to comply

with any obligation imposed by law Which-is*involved

in-the labor dispute in question, or who has failed io

-make every reasonable effort to. settle such dispute

- either by negotiation or with the aid of any available

governmental*machinery of mediation or voluntary

arbitration. gh

1 That order also disposed of certain other matters pending in the same

~ dockets before the Court of iPypele which are not involved in this petition.

és

eyes 2

\ ; Statement of the Case

\ .

When steam-powered locomotives were replaced by

diesels, the primary function of the locomotive firemen—

firing the boilers—disappeared and such firemen’ generally

were not needed for the safe and efficient operation of loco-

a. . . . .

~ motives. Nevertheless, the collective bargaining agreements

* * 4 *

between the peti railroads and the respondent union

continued to requiré’ that a fireman be used on most locomo-

tives, at great cost to petitioners and ultimately to the publie ’

in the form of higher rates. In an effort to eliminate the

wasteful overmanning resulting from that requirement and

other obsolete work rules, petitioners in 1959’served respon-

dent and other unions representing their operating em-

ployees with notice of proposals, pursuant to Section 6 of the

Railway Labor Act (45 U.S.C. § 156), to change the existing

agreements so as to do away with those work rules.

The dispute resultiag from those proposals and from

counterproposals served by the unions was submitted to an

ad hoc Presidential Railroad’ Commission for its investiga-

tion and. recommendation. That Commission concluded that

firemen generally are not needed forthe safe and efficient

operation of locomotives in Jrtight an\l yard service, and

recommended the abolition of rules requiring that firemen

be so used (subject to certain protections for existing fire-

men), as did an emergency board appointed by the President -

pursuant to Section 10 of the Railway Labor Act (45 U.S.C,

§ 160). Although accepted by the railroads, the recommen- °

dations of the Commission and emergency board were re-

jected by the unions and all of the procedures of the Railway

Labor Act applicable to a major dispute were exhausted

without settling the dispute.*- When the unions threatened

*The validity of those Section 6 proposals was upheld by this Court in

Locomotive Engineers vy. B. & O. R. Co., 372 US. 284 (1963).

8 Disputes over Section 6 proposals to change existing agreements tommonly

os }

H i .

a nationwide railroad strike, the/ p, eae enacted Public

Law 88-108 (77 Stat. 132) to prevent that disaster. _

Under P. L. 88-108, th two most difficult isSues in dispute

—the issue as to the ys of firemen and an issue as to the

consist of train crews (¢.g., the number of brakemen to be

used )—were submitted to compulsory arbitration by an ar-

bitration board which was designated as Arbitration Board

No, 282. Board 282 agreed with the Presidential Railroad

7 mmission “that Anat -helpers are not so essential for

—

he safe and efficien

operation of road freight and yard.

diesels that there should tontinue to be either a national rule’

/ or local rules requiring their assignment on all such diesels.”’

| Opinion of Neutral Members, 41 Labor Arbitration 680, 688

/ (1963)" In general, its Award modified the existing agree-

ments and established new work rules whereby the use of

firemen in freight ’and. yard service could be reduced by

approximately 90%, subject to certain. protections for the

existing firemen. The Award also established procedures

whereby train crew consists could be reduced subject to pro-

tections for existing employees.*

Section 3 of P.L. 88-108 provided that the arbitration

award should constitute ‘“a complete and final disposition’?

of the issues submitted to arbitration. Section 4 provided,

however, that the ‘‘award shall continue in force for such

are referred to as “major’’\disputes in contrast to disputes over the interpreta-

tign or application of 8B v0 agreements which commonly are referred to as

“minor” disputes. Minor disputes not settled by agreement are subject to com-

pulsory arbitration by adjustment boards under Section 3 of the Act, 45 U.S.C.

_ § 153, and a union may not validly strike over such disputes. E.g., Locomotive

' Engrs. v. L. & N. R. Co., 373 US. 33 (1963). In major disputes, resort to self

help such as strikes by the unions and lockouts by the carriers is permitted, but

only after the exhaustion of procedures that “are purposely long and drawn out,

based on the hope that reason and practical considerations will provide in time

an agreement that resolves the dispute.” Railway Clerks v. Florida ECR. Co.,

384 US. 238, 246 (1966). See, e.g., Railroad Trainmen v. Terminal Co., 394 US.

369, 378 (1969), where those procedures are succinctly described.

4 The validity of the Award was upheld in Brotherhood of Loc. Fire. & Eng.

v. Chicago, B. & Q. R. Co., 225 F.Supp. 11 (D.DC., 1964), aff'd per curiam, 331

F.2d 1020 (DC. Cir., 1964), cert. den., 377 US. 918 (1964). '

period as the arbitration board shall determine in its awapd,

but not to exceed two. years from the date the award takes

effect, unless the al rs otherwise.’’ Board 282 pro-

vided that its Award should cohtinue in force for a perioil of

two lyears from the effective date thereof, unless the parties

agreed otherwise, This two-year period expired as of Jan-

uary 25, 1966 insofar a¢ ‘the crew-consist provisions of jthe

Award were copcerned! and expired as of March 31, 1966

insofar othe lan |provisions of the Award were ¢on-—

cerned; |

A controversy atose between the railroads and the unions

(except for the rotherhood of Locomotive Engineers,

which agreed with he position ‘of the railroads) concerning |

the rules that woul apply following expiration of the two-

year period of the| Award. In general, the railroads con-

ended ‘that their prior rules as modified under the Award

would continue to apply until changed in accordance with

the Railroad Labor (Act, while the unions contended that the

prior rules would automatically be restored to full force and

effect and apply after expiration of the Award until changed

ineaccordance with the Railway Labor Act. A separate, al-

though related, controversy arose between the railroads and

three of the unions—respondent, the. Brotherhood of Rail-

‘road Trainmen (‘‘BRT’’), and the Order of Railway Con-_

ductors & Brakemen (‘‘ORC&B’’)—as a result of proposals

served by those unions while the Award was still in effect,

purportedly pursuant to Section 6 of the Railway Labor Act,

to adopt new work rules that in effect would have Wiped out

the reductions in overmanning that had been accomplished

under the Award. In general, the carriers contended that

such proposals were premature in that they could not validly

be served until the two-year period of the Award expired,

while the unions contended that they had‘a right to serve

and bargain about such proposals during the period of the

Award as well as thereafter.

: 6

These controversies first came before the courts in litiga-

tion brought by the railroads against the crew-consist.

unions, as the crew-consist provisions of the,Award were the

first to expire. With minor exceptions, the District-Court

upheld the position of the railroads in regard both to the

rules in effect following expiration of the Award and to the

prematurity of the Section 6 notices served during. the

period of the Award. Akron & Barberton Belt R. Co. v.

Brotherhood of R. Trainmen, 250 F. Supp. 691 (D. D.C.,

1966), supplemental opinions, 252 F, Supp. 207 (D. D.C.

1966), 253 F. Supp. 538 (D. D.C., 1966), 254 F. Supp. 306

(D. D.C., 1966). Similar rulings were made by the District

Court in the subsequent litigation between petitioners and

respondent following expiration of the fireman provisions of

the Award. Bangor and Aroostook R. Co. v. Brotherhood of

Loc. F. & E., 253 F. Supp. 682 (D. D.C., 1966)..

While the carriers sought and obtained temporary re-

straining orders against strikes by the crew-consist unions

over the rules to be applied following expiration of the

Award, those unions soon made clear that they did not

intend to strike and the temporary restraining orders were

allowed to expire without any further injunctive relief being

sought or granted. On March 28, 1966, the District Court

issued an order temporarily restraining respondent and its

officers, among others, from striking ‘‘over any dispute as to

the agreements, rules, regulations, interpretations, or prac-

tices to be anoles by the plaintiffs or any of them upon the

expiration of the period during which the Award by Arbitra-

tion Board No. 282 shall conttnue in force as an award,’’ —

pending an April’4, 1966 hearing on the plaintiff railroads’

motion for a preliminary injunction. That temporary re-

straining order was issued upon the basis of affidavits: set-

ting forth threats by top officers of respondent to strike if the

prior rules were not restored to full force and effect when

the fireman pr ovisions of the Award expired.

ee ey

7 . -

cad ae. e ; .

‘Unlike the crew-consist unions, respondent did not deny

’ that it intended to strike and it soon demonstrated that its

threats were not idlé. In the teeth of the temporary restrain-

ing order, respondent struck several of the railroads imme-

diately after the fireman provisions of the Award ‘expired

at 12:01 A.M. on Mafch 31, 1966.5 Later that day, the Dis-

trict Court entered a Supplement to Temporary Restraining

Order in which’ respondent and ‘‘all other persons’’ subject

to the March 28, 1966 order were specifically ‘‘ofdered to

cease the said strikes and picketing that are now taking

place,’’ but respéndent nevertheless continued its illegal

strikes in direct violation of that order. Consequently, on _

April 2, 1966 following a hearing on an order to show cause, *

the District Court entered an order adjudging that respon-

dent and its President (H. E. Gilbert)-‘‘are guilty of con-

tempt of this Court in failing and refusing to comply with

this Court’s order of March 28, 1966, as supplemented by its

order of March 31, 1966,’ and ordering that respondent ‘‘be |

fined ifthe sum of $25,000 and H. E. Gilbert-be fined in the

‘sum of $2500 if the said contempts have not been terminated

by 12 o’clock noon, on April 3, 1966.’’ When respondent

~ continued to defy the District Court and prolonged the

strikes beyond noon on April 3, 1966, the District Court

issued a rule tc to show cause as to ‘why the fines should not be

increased but the strikes were terminated before action

could be taken upon the rule to show cause, after midnight on

April 4, 1966. |

The parties agreed, with the approval of the District

Court, to bypass the preliminary injunction stage and go

directly to a final hearing of the merits upon the basis of a

The struck rajlroads included the Boston and Maine, the Central of Georgia,

the Grand Trunk Western, the Illinois Central, the Missouri Pacific, the New

Orleans Union Passenger Terminal. the Pennsylvania, the Portland Terminal,

the Seaboard, the Spokane International, the Texas and Pacific, and the Union

Pacific. ~~

Y/ |

stipulation as to the facts and issues. Among other things,

that stipulation provided that:

‘5. Whether the Norris-LaGuardia Act . . . OF any |

part thereof, may apply to the dispute involved in this «

proceeding [is one of the issues to be decided]. The

parties contemplate that this issue is to be argued and

decided in the trial on May 4, 1966 as a matter ‘of law.

If it should be determined that the Norris-LaGuardia

Act or some part thereof as a matter of law may apply

‘ to the dispute involved, in this proceeding, the p&rties

contemplate that.a subsequent trial or hearing will be

held to determine whether the, requirements of the

Norris-LaGuardia Act have been complied with upon

the basis of the evidence and other relevant circim-

stances brought before the Court at the subsequent trial

or hearig. 4

In addition to generally agreeing with petitioners’ position

of the merits (see p. 6,“supra), the District Court held

Norris-LaGuardia in its entirety to be inapplicable (253 F.

Supp., at 689) so no further hearing was held to determine

- whether Section 8 of that Ae had been complied with by

petitioners.

The judgment on the merits in the case between petition-

ers and respondent was entered by the District Court on

May 12, 1966. Meanwhile, on April 29, 1966, petitioners filed

a motion to assess the fines conditionally imposed in the

' April 2, 1966 contempt order and a motion to award com-

pensatory contempt damages to the railroads that had been

struck by respondent. An order assessing the coercive con- .

tempt fines was entered on June 15, 1966,* and the compensa-

tory contempt proceeding was held in abeyance pending ap-

peals from that order and from the judgment on the merits. -

8 Bangor and Aroostook R. Co. v. Brotherhood of Loc. F. & E., 255 F. Supp. \

476 (D. DC., 1966).

«=

: vines

While not consolidated, the appeals from the judgment

on the merits in the. crew consist case, the appeals from the

judgment on the merits in the fireman case between petition-

ers and respondent, and the appeals from the order assessing

‘the coercive contempt fines were argued seriatim before a

single panel of the Court of Appeals. On May 12, 1967, that

Court issued two opinions relating to those appeals. One

opinion dealt only with the appeals from the order assessing

the coercive contempt fines. It is reported as Brotherhood

of Loc. Fire: d Eng. v. Bangor & Aroostook R. Co., 380 F.2d

970 (D.C. Cir., 1967), and is referred to herein as the ‘‘Co- .

ercive Contempt Opinion.’’ Phe second opinion dealt with

the appeals from the judgments on the merits entered in both

the crew-consist case and-in the fireman case. As supplé&

mented on July 31, 1967, it is reported as Brotherhood of

Railroad Trainmen v: Akron é& B.B. R. Co., 385 F.2d 581

(D.C. Cir,, 1967), and is referred to herein as the,‘‘Merits

Opinion.” ‘ Boe

In its/Coercive Contempt Opinion, the Court of Appeals

_rejected all attacks upon.the coercive contempt fines except

‘one. The exception was a holding that the District Court

should have held an evidentiary hearing upon the issue of

whether respondent and its president had complied, or were

unable to comply, with the conditién that the strikes be

termiyated by noon of April 3, 1966.7 While remanding the

proceeding for such a hearing, the Court of Appeals rejected

contentions that the coercive contempt fines could not be—

~ assessed because, among other things, the underlying tempo-

7 Petitioners had filed affidavits asserting that the strikes had not terminated

until 12 hours or more after the deadline, and no opposing affidavits were filed.

The District Court saw no need under those circumstances for an evidentiary

hearing, but the Court of Appeals thought it “possible that counsel for appel-

Jant was urging a more absolute ‘substantial compliance,’ or an inability to

comply, with the District Court’s unconditional order to call off the strike and

return to work,” and held that respondent and .Mr. Gilbert should be allowed

an opportunity to present evidence’ supporting the assertions of their counsel.

380 F.2d, at 581-582.

e®

rary restraining order violated Sections 4 and 8 of the

Norris-LaGuardia Act. After expressing the view‘that the

coercive contempt fines were enforceable even if the under-

lying restraining order Was invalid, the Court stated that

such ‘‘an analy sis is not, however, critical or determinative

in the case now before us,, because we find that the Norris-

LaGuardia Act does not apply to preelude these under-

lying temporary restraining orders’’ since that ‘‘Act will

not.apply to preclude injun¢tive relief in cases in which the

_acts to be enjoined are in /Violation of the Railroad Labor

Act.’’ 380 F.2, at 483. See, generally, 380 F.2d, at 580, 583-

oe Ga Sires

In its; Merits Opinion, the Court of Appeals generally

affirmed the position of the carriers and the District Court

that the work rules established under Award 282 continued

to apply until changed in accordance with the Railway I sahor

Act (385 F.2d, at 587, 592-594, 607-612), but t Mold that. the

Section 6 notices served during the period of thd Award were .

_ hot premature although certain of those notices were invalid

(385 F.2d, at 594-G05).® In its initial opinion of May 12,

1967, the Court did not discuss the Norri -LaGuardia issue.

At the conclusion of that opinion (385) F.2d, At 605), the

/ Court stated that the parties could ‘‘request supplemental

rulings on any matters that have not been discussed in this

opinion.’’ The supplemental opinion of July 31, 1967 re-

sulted from such requests, including r quests by’ two of the

crew-consist unions (BRT and “ORCE ) that the Court pass ]

upon the validity of the order te pprarily

strikes by those unions.® f

The railroads in the crew-consist/ ‘ease Nook the positi

8 Respondent had served three Section 6 pr Lbosals on or about November

15, 1965, identified as Notice No. 1, Notice No. 2 and Noti¢e No. 3. Notice

No. 1, which proposed /the adoption of rules that once again would require th

use of firemen on almost all locomotives, was held to be valid and bargainable,

Notice No. 2 was held to be invalid, and issyes going to the/validity of Notice

No. 3 had been stipulated out of the case.

-* Respondent did not request such agfuling with respect to the temporary

restraining ‘order issued against it and had not attacked that order at any time

¥v

em.

1 i :

| /

that any issues as to the validity of th Aemporary restrain-

ing order entered in that case were moot as that order had

long since expired, ne strikes occurred and no further in-

junctive relief was issued. The Céurt held, however, that

‘the possibility of recovery on the bond if thei order was

/ erroneously issued prevented mgotness, and went on to hold

that Section 8 of Norris-LaGudrdia was applicable and had

not been complied with insofar as the order restrained the

/ . BRT although there was nd failure to comply with Section

" 8 insofar as the order rest ained the ORC&B.'° 385 F.2d, at

613-614. According to thé Court of Appeals, the decision of

this Court in Trainmeyn’v. Chicago, R. & I.R. Co., 353 US.

30 (1957), established a ‘‘principle of accomodation” be-

tween Norris-LaGuafdia and ihe Railway Labor Act which

/jwas_to be applied separately to the various sections of

' Norris-LaGuardia ‘rather than to the Act as a whole. 389

/ F.2d, at 613. Uyder that principle of accommodation as so

/ applied, the Court concluded that Section 8 applies to re-

straints against violations of the Railway Labor Act even

though Section 4 does not. 385 F.2d, at 613-614. But, it

‘“‘may be that in a particular case the District Court might

conclude that the imperatives of the Railway Labor Act

override Section 8,’’ and error in entering a restraining

order because of non-compliance with Section 8 weuld not

““excuse a contemptuous violation.’? 385 F.2d, at 614, Never-

theless, ‘‘the approach of the District Court .. . that Section

8 of the Norris-LaGuardia Act was completely inapplicable

- +. Was error.’’ 385 F.2d, at 614.

A petition by respondent and its president for writ of

in the. Merits Case, apparently because the issue was raised in the Coercive

Contempt Case.

10 The distinction in the result as to the two unions apparently stemmed from

the Court’s holdings. in the May 12, 1967 opinion (385 F.2d, at 598-599) that

the Section 6 notices served bv the BRT were not premature, so that the rail-

roads had a duty to bargain about such notices even during the period, of the

Award, while the Section 6 notices ‘served by the ORC&B were premature or

invalid so that no such duty arose. See 385 F.2d, at 614.

certiorari to review the Coercive Contempt Opinion was

denied with a notation that the case ‘‘is not yet ripe for

review by this Court’’ in view of the remand of that matter

to the District Court for further proceedings. 389 U.S. 327-

328 (December 11, 1967). Petitions by both the railroads and

the unions to review the Merits Opinion were also denied.

390 U.S. 923 (January 29, 1968).

All of the foregoing is now history, but it forms the back-

ground for the decision which we now seek to have reviewed.

We have noted (p. 8, supra) that petitioners, on April 29,

1966, filed a motion for an award of compensatory contempt

damages to the railroads struck by respondent upon expira-

tion of the Award in violation of a temporary restraining

order, and that proceedings upon that motion were held in

abeyance pending the appeals as to the coercive contempt

fines and as to the mertis. On February 5, 1968 respondent

filed with the District Court a motion to dismiss the com-

pensatory contempt proceeding on the ground that the ruling

by the Court of Appeals in its Merits Opinion that the tem-

porary restraining order against the BRT was erroneously

assued also applied to the temporary restraining order

issued against respondent. Petitioners pointed out that the

Court of Appeals in its Coercive Contempt Opinion had

upheld the validity of the temporary restraining order

issued against respondent. The District Court, in a brief

oral opinion, concluded that the ‘‘ validity of the restraining

orger has been upheld’’ and compensatory damages could

be awarded even if it were invalid in view of ‘‘the decision

of the Supreme Court in the Mine Workers case to the effect

that even an invalid injunction mvst be obeyed and failure

to obey it is punishable as a contempt.’’ App. A, at 29.

The motion to dismiss the compensatory contempt proceed-

ing was denied, therefore, in an order entered.on May 29,

1968.

- 13

Respondent then filed with the Court of Appeals, in the

dockets in which the Merits Opinion liad been rendered,

what it denominated as a Petition for Further Relief to

Enforce this Court’s Prior Opinion and Mandate. The con-

tents of that.petition demonstrated that it sought an extra-

ordinary writ under the All-Writs Act, 28 U‘S.C. § 1651,

mandating the District Court +to disiniss the compensatory

contempt proceeding: The February 28, 1969 decision of

the Court of Appeals, which is the subject of this petition, in.

effect granted that petition although the Court saw no rea~

son to issue a formal mandate as it was confident that the

Jistrict Court would proceed in accordance with the views

expressed by the Court of Appeals in its opinion. App. B.,

at 33. ; ' .

The Court of Appeals chhracterized its Coercive «Con-

tempt Opinion as holding ‘“thastr coercive contempt fine

could stand even assuming the restraining order itself was

beyond the jurisdiction of the District Court by virtue of

the Norris-LaGuardia Act”? (App. B, at 31), although

conceding that ‘‘at one point there is general language”’ in

the Opinion ‘‘that the Norris-LaGuardia Act did not pre-

clude the restraining order against’? respondent (App. B,

fn. 3, at 32-33). The Court of Appeals then held that the

‘‘lack of propriety of the restraining order’’ against respon-

dent ‘‘is established by’’ its Merits Opinion (App. B, at

31), although conceding that the ‘‘particular ruling came.

in the context of discussing the plea of BRT-for recovery on’

their injunction bond. . .’’ (App. B, fn. 1, at 32). Thus,

‘‘the District Court had erred in granting injunctive relief

to the carriers without regard to §8 of the Norris-LaGuardia

Act in the mistaken belief that §8 was completely inapplica-

ble’’ (App. B, at 32). According to the Court of Appeals,

the ‘‘key mistake of the District Court lay in its assertion

that there is no distinction between the right to impose a

, 14. ;

coercive fine in order to enforce an injunction and the right

‘to compensatory damages for its violation, and that in both.

respects failure to obey an invalid injunction is punishable

as contempt’? (App. B, at 33). That was error because, as

the Court of Appeals viewed the decision of this Court in

United States v. Mine Workers, 330 U.S, 258 (1947), ‘fin a

‘compensatory’ civil contempt proceeding—unlike a coer-

cive civil proceeding—the alleged contemnor establishes a

defense if he successfully challenges the propriety of the

underlying order’’ (App. B, at 31).

In a petition for rehearing, we urged, among other things,

that petitioners at least should be given an opportunity to

demonstrate compliance with Section 8, in view of the stipu-

lation of the parties (see p. 8, supra) reserving that issue

for further hearing in the event Section 8 was held to be

applicable, and also to gemonstrate that ‘‘the imperatives of

the Railway Labor Act override Section 8’’ in the circum-

stances of this case—a. possibility that the Court of Appeals

appeared to recognize ‘in its Merits Opinion (see p. 11,

supra).' The petition for rehearing was denied without

opinion, however, on October 23, 1969 (App. D).

11 We do not assert what we believe to be the error of the Court of Appeals

in this regard as an independent ground for grant of certiora¥i, but we reserve

the right to argue the issue in the event that certiorari is granted. The Court

of Appeals stated (App, B, at 30) tbat respondent struck “on the ground that,

they had given an appropriate notice in 1965, to take effect after the expira-

tion of Award 282, to increase the number of firemen above that provided by

the Award,” and petitioners “had refused to bafgain over that notice contend-

ing that it was pen-bargainable.” Thus, the Court of Appeals apparently was

of the view that the refusal to bargain over that Section 6 notice (Notice No. 1,

see fn. 8 at p. 10, supra), established non-compliance with Section 8 of Norris-

‘ LaGuardia as that notice had been held to be bargainable in the Merits Opin-

ion. But, as we pointed out in thée-petition for rehearing, petitioners contended

that the strikes were over the refiisal of the carriers to restore the prior rules

upon ‘expiration of the Award*(an action upheld in the Merits Opinion), re-

spondent :contended the strike was over its Notice No. 3, and no one had

contended and there was no evidence of record that the strikes were over

Notice No. 1. Even if the strikes were over Notice No. 1, moreover, they

violated the Railway Labor Act as the procedures of the Act had not been

exhausted-with respect to that Section 6 proposal. See fn. 3, pp. 3-4, supra.

Reasons for Granting the Writ

The background of the decision by the court’below is fairly

complex, but the issues raised by that decision are relatively

simple. The proper decision of those issues is a matter of

real importance, moreover, both to the parties and. to

the future administration of federal statutes having wide

application and of federal contempt law. The.decision below

concerns the relationship between the Railway Labor Act

‘and the Norris-LaGuardia Act and the even broader problem

of the circumstances in which persons injured by actions in

contempt of a restraining order or injunction may: recover

compensatory damages. In holding that each’ provision of

Norris-LaGuardia is to be separately ‘‘accommodated”’ with

the Railway Labor Act and that Section 8 of N orris-LaGuar-

dia, at least, applies to proceedings to restrain violations of

the Railway Labor Act, the decision below conflicts with

decisions of this Court (and of other courts of appeals)

holding the Norris-LaGuardia Act in toto to be inapplicable

to such proceedings. And, the decision below that a technical

error in the issuance of a temporary restraining order pre-

vents recovery in compensatory contempt for deliberate

violations of such an order goes beyond any holding of this

Court (or any other court) of which we are aware. For these

reasons, as more fully set forth in the following portion of

this petition, we believe that certiorari should issue to review

the decision of the Court of Appeals.

I. The Relationship Between the Railway Labor Act and

the Norris-LaGuardia Act.

The Railway Labor Act (44 Shat. 577, as amended, 45

U.S.C. § 151 et seq.) regulates collectiv@argaining in the

railroad and airline industries. The Norris-LaGuardia Act

(47 Stat. 70, 29 U.S.C. § 101 et seq.), regulates the jurisdic-

tion and proceedings of the federal courts when injunctive

;

relief is sought in connection with a labor dispute subject to

that Act. Section 4 of Norris-LaGuardia (29 U.S.C. § 104)

deprives the federat courts of jurisdiction to issue orders

; restraining or enjoining certain specified activities, includ-

’ ing ‘‘[eJeasing or refusing to perform any work or to re-

main in any relation of employment ;’’ i.e., strikes. If juris-

diction to issue sucli relief is not withdrawn by Section 4,

Sections 7, 8 and 9 impose procedural requirements that

must be complied with before a restraining order or injune-

tive relief may be issued. Section 7 (29 U.S.C. § 107) re-

quires verified and specific allegations of certain facts, proof

by testimony in open court, and findings of those facts by

the trial court after a hearing of which due notice is given.

Section 8 (29 U.S.C. § 108), with which we are particularly

concerned here, provides that ‘‘no restraining order or in-

junctive relief shall be granted to any complainant who

has failed to comply with any obligation imposed by law

which is involved in the labor dispute in question, or who has

failed to make every reasonable effort to settle such dispute

either by negotiation or with the aid of any available govern-

mental machinery of mediation or voluntary arbitration.”’

And, Section 9 (29 U.S.C. § 109) requires that the trial court"

make its findings prior to the issuance of any relief and that

such relief be limited- to-specifie-acts- alleged, proven and

found.

Neither Act speeifies what the relationship between them

shall be. Thus, labor disputes arising under the Railway

Labor Act are neither expressly subjected to Norris-La-

Guardia nor expressly excepted from Norris-LaGuardia,

either in whole or in part. This Court first passed upon the

relationship. between the two Acts in Virginian Ry. v. Feder-

ation, 300 U.S. 515 (1937). In affirming an injunction re-

quiring # railroad to bargain with a union authorized to

representa craft of its employees pursuant to Section 2 .

Ninth of the Railway Laber Act (45 U.S.C. § 152 Ninth), the

Court rejected a contention that the injunctive decree was

invalid ‘‘for its failure to conform to the requirements of

§9 of the Norris-LaGuardia Act,’’ because:

‘Tt suffices to say that.the Norris-LaGuardia Act can

affect the present decree only so far as its provisions

are found hot to conflict with those of §2, Ninth, of the

Railway Labor Act, authorizing the relief which has

been granted. Such provisions cannot be rf

nugatory by the earlier and more general provisfons of

the Norris-LaGuardia Act.’’

4 :

300 U.S., at 562-563, |

In Graham vy. Brotherhood of Firemen, 338 U.S. 232, 237

(1949), this Court relied upon Virginian Ry., which was said

to hold ‘‘that the Norris-LaGuardia Act did not deprive

federal courts of jurisdiction to compel compliance with

positive mandates of the Railway Labor Act,”’ in rejecting a

contention that ‘‘in view of the provisions of thé\Norris-

LaGuardia Act, 29 U.S.C. §§ 101 et. seq., the District Court

was without jurisdiction to grant relief by injunction’’ re-

quiring a union to represent the members of its craft in a

non-discriminatory manner. The respondent union in that

case (which is also the respondent here) had contended that

the injunction\was improper because the plaintiffs had not

complied with Sections 7 and 8 of Norris-LaGuardia,!? as

well as relying upon Section 4 of that Act. The decision in

Graham was followed in Railroad Trainmen v. Howard, 343

U.S. 768, 774 (1952), nats that ‘‘the District Court has

jurisdiction and power o issue necessary injunctive

orders”’ in a similar situation ‘‘notwithstanding the pro-

‘visions of the Norris-LaGuardia Act.’’

This problem next came before the Court in Trainmen vy.

12 Brief for Respondent. at 16-17.

Chicago R. & 1. R.-Co., 353 U. S. 30 (1957), which ectieks an

injunction against a strike ov er a minor dispute. That is the

decision which the court below, in its Merits Opinion, relied

upon as establishing a ‘‘principle of accommodation’? which

it purported to follow in holding that Section 8 of Norris-

LaGuardia applies to proceedings to enforce the mandates

of the Railway Labor Act even though Section 4 does not.”

See pp. 11, 13-14, supra. It is true that this Court stated,

in Trainmen, that there ‘‘must be an accommodation’?

of the two Acts. 353 U.S., at 40. But the accommoda-

tion to which this Court referred did not involve picking

and choosing ,among the various provisioris of Norris-

LaGuardia. Indeed, this Court in its Trainmen opinion did

not single out for mention any particular provision of

Norris-LaGuardia, much less analyze the various provisions

in some attempt to determine which should apply and which

should be disregarded. The accommodation which this Court

made, relying upon the legislative history of Norris-La-

Guardia (353 U.S., at 40-41) as ‘well as its Virginian Ry.,

Graham and Howard decisions (353 U.S., at 41-42), was that

‘‘the specific provisions of the Railway Labor Act take

precedence over the more general provisions of the Norris-

LaGuardia Act,’? so that ‘‘the District Court has

jurisdiction and power to issue necessary, injunctive orders

[to enforce compliance with the requirements of the Railway

Labor Aet] notwithstanding the provisions of the Norris-

LaGuardia Act.?’ 353 U.S., at 43 (bracketed insert in the

original). *

Our understanding of Trainmen is confirmed by sub-

sequent opinions of this Court. Later in the same Term, the °

Court held that an arbitration provision in a collective bar-

gaining agreement coming under the Labor-Management

Relations Act could be specifically enforced despite non-

compliance with Section 7 of Norris-LaGuardia. Teztile

wth Z “i 5 » 2 distal *, cy RRL: bac the Salmons a a

e>.

if,

ae “

ye iyo

"hy 5 9 os": ‘

Fe avi ¢ ei »

A of 4 ~ Ps *! mE (2

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yee if. Noi 4 } nee an

Workers v. Lincoln'Mills8353 YS. 44, 457-459 (1957). Af.

ter noting that Sectior?S of Norris-La uardia indicates that

the Act was intended to encompass akbitration, the Court

? nonetheless concluded that N orris-LaGuardia was inapplica-)

ble, relying in part by analogy upon the holdings in Virgin-

ian Ry. and Graham that ‘‘the Norris-LaGuardia Act does

not deprive federal courts of jurisdiction to compel compli-

ance with the mandates of the Railway Labor Act.’’ 353

F.2d, at 458. In Locomotive Engineers v.W-K.-T R. Co.,

363 U.S. 528, 531 (1960), the Court characterized the Train- |

men case as holding that the injunctive relief granted did

‘not fall within the prohibitions of the Norris-LaGuardia

Act, 29 U.S.C. § 101 et seq., because of the superseding pur-

poses of the Railway Labor Act... .”’ And, in Locomotive

Engrs. v. L. dé N. R. Co., 373 U.S. 33 (1963), the Court relied

upon the Trainmen decision in afirming an injunction

against a strike over a minor dispute which had been decided ——

by an adjustment board, stating that in Trainmen “this

Court concluded that the Norris-LaGuardia Act, 29 U.S.C.

§§ 101-115, was not a bar to injunctive relief against strikes”’

ovér minor disputes which had been submitted to an adjust-

ment.board. 373 U.S., at 39.

Thus, before the Trainmen decision, in that decision and

after that decision, this Court consistently has accommo-

dated the Norris-LaGuardia and Railway Labor Acts by

holding that Norris-LaGuardia is inapplicable to orders

enforcing the requirements of the Railway Labor Act, in-

cluding orders restraining strikes in violation of that Act.”

The Court has applied this ‘‘principle of aceommodation,”’

13On the other hand, if ne violation of the Railway Labor Act is involved,

the fact that the labor dispute is between parties subject to that Act does not

prevent Norris-LaGuardia from applying. Thus, when the procedures prescribed

‘by the Railway Labor Act in a major dispute have been exhausted, Norris-

LaGuardia may apply to a suit to enjoin a strike over that dispute. Telegraph-

ers v. Chicago, & N. W. R. Co., 362 US. 330 (1960) ; Trainmen v. Toledo, P. &

W. RR. Co., 321 US. 50 (1944).

moreover, to Norris-LaGuardia as a whole, and thus has

held the procedural requirements of Section§ 7,8 and 9 to be

inapplicable as well as the provisions of Section 4. Contrary

to the decision by the court below, at no time has this Court

even so mueh as siiggested that a distinction may be made in

this regard between the various provisions ef Norris-

LaGuardia.!*

_ We see no need to detail the lower court decisions which,

in compliance with the decisions of this Court, have held

generally that Norris-LaGuardia does not apply in proceed-

ings to enforee the mandates. of the Railway Labor Act,

without purporting to distinguish between the various pro-

visions of Norris-LaGuardia. We do note, however, that

Brotherhood of Railroad Train. v. Denver & R.G. W. R. Co.,

290 F.2d 266 (10th Cir., 1961), cert. den., 366 U.S. 966 (1961),

expressly held Section 8 of } orris-LaGuardia to be inappli-

cable and thus undoubtedly is in direct conflict with the

decision below in this case. The Tenth Circuit stated, in this

regard (290 F.2d, at 270), that: :

“Tt is urged that the injunction entered in this case

is prohibited by Section’8 of the Norris-LaGuardia Act.

... We think this question was answered in the [7 rain-

men decision by the Supreme Court], in which it was

held that the general terms of the Norris-LaGuardia

Act could not be read alone in matters dealing with

railway labor disputes, and that it did not prevent in-

junctions to prohibit strikes growing out of minor dis-

putes which were specifically dealt with in the Railway

Labor Act.’

14 And, of course, in connection with an application for a temporary restrain-

ing order, a showing that a violation of the Railway Labor Act may be involved

is sufficient to avoid the application of Norris-LaGuardia since a “District Court

unquestionably [has] the power to issue a restraining order for the purpose of

preserving existing conditions pending a decision upon its jurisdiction.” United

States vy. Mine Workers, 330 U'S. 258, 290 (1947).

A ya

Accord, Brotherhood of Railroad Carmen v. Chicago & N.W.

Ry. Co., 354 F.2d 786, 789-796 (8th Cir., 1965).° See, also,

Piedmont Aviation, Inc. v. Air Line Pilots Ass’n, Internat’l,

416 F.2d 633, 638 (4th Cir., 1969), petition for certiorari

pending, No. 995 (O.T. 1969).

Indeed, we believe that a fair reading of the Coercive Con-

tempt Opinion by the court below will lead to the conclusion

that that court there held that Norris-LaGuardia was totally

inapplicable to the order temporarily restraining respondent

from striking over the rules to be applied following the

expiration of Aw: ard 282, despite the contrary reading given

to that opinion by the court below in the decision now sought

to be reviewed. See pp. 9-10, 13, supra. Certainly, respon-

dent (as well as petitioners) so construed the Coercive Con-

tempt Qpinion at the time. In its petition to this Court for

writ of certiorari to review that decision (No. 353, 2

1967), respondent here asserted (pp. 25-33) that the court

below erred in holding that Sections 7 and 8, as well as See-

‘ion 4, of Norris- LaGuardia were inapplicable, and indeed,

that ‘‘the worst violation of Norris- LaGuardia”’ was the

‘‘disregard of Section 8’’ (p. 30).

But however that may be, we submit that the decision

below in this case conflicts with decisions of this Court and

of other courts of appeals. The clear line of demarcation

between the Railway Labor Act and the Norris-LaGuardia

15 Tn its Merits Opinion, the court below cited the Carmen case as supporting

its approach to Norris-LaGuardia. 385 F.2d, at 613, fn. 4. But while noting in

that case that “even if thee Norris-LaGuardia Act were held to apply .. ., it is

arguable that at least the. requirements of §8 had been met by the carrier”

(354 F.2d, at 794, fn. 8), the Eighth Circuit held that “the more specifi¢g and

later-enacted Railway Labor Act must prevail to allow the issuance of the

injunction” (354 F.2d, at 796) even if the carrier did not comply with the

procedural requirements of Sections 7, 8 or 9 of Norris-LaGuardia. An exami-

nation of the other decisions cited by the court below in that footnote to its

Merits Opinion will reveal that only Rutland Railway Co. v. Brotherhood of

Locomotive Eng., 307 F.2d 21 (2d Cir., 1962), cert. den., 372 U.S. 954 (1963).

lends support to its approach to Norris-LaGuardia.

/ / 1s

drawn by this Coyrt’will be obscured if that

afford warrant for a sepa- -

‘rse ‘faccommodytion’’ of each provision of

Act heretofore

dectsion is lef

rate and div

Norris-LaGyardia even in cirgumstances where enforcement

of the mandates of the Railway Labor Act is involved, vi ither

aGuardia in its entirety in such

circumstanees. If such a cfange in approach is to be adopted

and the Ability of the fedéral courts to enforce the Railway

’ Labor Act is to be so eyoded, that determination should be

made ly this Court aftet full consider ation of all the relevant

arguments.

standing so as t

than disregarding ‘Norris-l

We note that the p(tition for writ of certiorari filed by the :

railroads involved jn the crew-consist aspect of the Merits

Opinion by the egurt below (most of: whom are also peti-

tioners here) soviight review of the holding that Section 8

ef Norris-LaGyardia applied to. the temporary restraining

order against Ahe BRT, asserting reasons that generally are

similar to thése asserted above. See Petition, No. 863, O.T.

1967, at 27432. We do not know, of course, why the Court

denied that petition. It may have been because, as wa’

admitted in the petition (p. 32), the decision in that case had

‘little {mmediate importance to the parties’? as it involved

at mogt a nominal recovery on the injunction bond. See pp.

6-7, ¥1, supra. Here, the damages recoverable in compen-

‘satéry contempt have not yet been proven, but are expected

by petitioners to be very substantial. Moreover, the Norris-

LaGuardia issue in the prior case may have been largely sub-

merged by the issues.relating more directly to P.L: 88-108

and the effect of the expiration of Award 282 which were

raised in that petition and the related petitions. And, of

course, at that time the seeming inconsistencies between the

‘lower court’s Coercive Contempt Opinion and its Merits

Opinion, insofar as the accommodation of the Norris-La-

Gua dia and Railway Labor Acts is concerned, had not been

resolved so that this Court may have been uncertain as to

where the lower court stood on that issue. But whatever the

explanation may be, we remain convinced that the issue now

presented is deserving of review and must ultimately be

resolved by this Court.

II. Recovery of Compensatory Contempt Damages.

Assuming that the court below was correct in holding that

the trial court erred in issuing the temporary restraining

order violatéd by respondent, we believe that the court be-

low was wrong in holding that the trial court’s error pre-

vents petitioners from recovering compensation in a com-.

perisatory contempt proceeding for losses caused by respon-

dent’s strikes in contemptuous violation of that restraining

‘order. In-so holding, the court below misconstrued this

Court’s decision in United States v. Mine Workers, 330 U.S.

958 (1947), and erected barriers to the recovery of com-

pensatory contempt damages that are not justified by that

case or by reason. If that decision is left standing, the in-

evitable result will be to encourage persons to violate ju-

dicial orders in the belief that even a correctable technical

error in the issuance of such orders will be sufficient in itself

to prevent any recovery in compensatory contempt by per-

sons injured as a result of such contemptuous conduct.

According to the Court of Appeals, the trial court’s error

in temporarily restraining respondent from striking over

the rules in effect following the expiration of Award 282 was

the trial court’s ‘‘mistaken view tlat $8 [of Norris-La-

Guardia] is completely inapplicable.’’ App. B, at 32. The

Court of Appeals reaffirmed its view, initially asserted in its

Merits Opinion (385 F.2d, at 613), that this error was not

‘‘jurisdictional’’ so as to deprive the trial ¢ourt of jurisdic-

tion to issue injunctive relief. App. B, at 32. The Court of

Appeals did not repudiate its holdings in its Merits Opinion

rejecting respondent’s contention on the merits that the

rules in effect prior to Award 282 automatically were re-

stored to full force and effect upon the expiration of the

Award (385 F.2d, at 592-594, 608-612), and that ‘‘in a par-

ticular case the District Court might conclude that the im-

peratives of ‘the Railway Labor Act override Section 8’’ of

Norris-LaGuardia and issue a temporary restraining order

even thoigh Section 8 has not been complied with. More-

over, petitioners have never had the opportunity to demon-

strate compliarice with Section 8 contemplated by their stip-

ulation with petitioner to the effect that the trial court

initially would decide as a matter of law whether any part

of Norris-LaGuardia was applicable and a subsequent trial

on the compliance issue would be-had if some part of that

statute were held to be applicable. See p. 8, supra.

Nevertheless, the Court of “Appeals held that the non-

jurisdictional error of the trial court in holding that ‘‘§8

was completely inapplicable”’ in itself prevents recovery by

petitioners in compensatory contempt, in the belief that this

result was requive by the Mine Workers decision. App. B,

at 31-33.

In Mine Workers, the union had struck in violation of a

temporary yestramning order issued at the instance of the

United States after the coal mines had been seized by the

Government. The trial] court found the union and its presi-

dent guilty of criminal and civil contempt, and imposed

criminal-contempt fines in the amount of $3,500,000 as to the

union and $10,000 as to its president. In affirming except for

a reduction of the fine imposed on the union, this Court held

that Section 4 of Norris-LaGuardia did not deprive: the

District Court of jurisdiction to issue the temporary re- °

straining order as that Act does not apply to the United

States (330 U.S., at 269-289) and, in the alternative, that

criminal contempt sanctions could properly be imposed for

violation of the restraining order even if the trial court was

25 , : a.

without jurisdiction to issue that order by reason of See-

tion 4 of Norris-LaGuardia (330 U.S., at 289-295).

In the course of justifying its holding on the latter point,

this Court stated (330 U.S., at 294-295) that:

‘““Tt does not follow, of course, that simply because a

defendant may .be punished for criminal contempt for

disobedience of an-order later set aside on appeal, that

the plaintiff in the action may profit by way of a fine

imposed in a simultaneous proceeding for civil con-

~ tempt based upon a violation of the same order. The

right to remedial relief falls with an injunction which

events prove was erroneously issued, Worden v. Searls,

[121 U.S. 14,] at 25, 26 [(1887)]; Salvage Process Corp.

Ve Acme Tank Cleaning Process Corp., 86 F.2d 727

(1936) ; 8. Anargyros v. Anargyros & Co., 191 F. 208

(1911); [footnote omitted] and a fortiori when the in-

Junction or restraining order was beyond the jurisdic-

tion of the court.’’

The above-quoted dictum is the apparent basis for the

belief of the court below that Mine Warkers compelled its

holding that petitioners could not recover in compensatory

contempt because the trial court erred in its view that Sec-

tion 8 of Norris-LaGuardia was completely inapplicable.

But, an examination of the cases cited in the above quotation

reveals that they involved situations in which it was sub-

sequently established that an injunction should have been

denied on the merits rather than because of some correctable

procedural or evidentiary irregularity.’* And, we believe

that it is to such situations that this Court referred in stat-

16 Of the cases cited, Worden itself determined that the injunction could not

be sustained on the merits, the opinion on the merits in the Salvage Process

- case is reported at 86 F.2d 725, and the opinion on the merits in the S. Anar-

gyros case is reported at 167 Fed. 753. The cases cited in tHe footnote omitted

from the above-quotation from Mire’ Workers apparently were cited for dicta

and did not djrectly involve recovery in compensatory contempt.

26 ,

ing that the ‘‘right to remedial rdliet falls with an injune-

tion which events prove was erroneously issued... .’’ This

is indicated not only by the cases cited for that proposition,

but also by the statement later in Mine Workers (330 ULS., at

O04) that:

‘‘Where compensation is intended, a fine is imposed,

payable to the complainant. Such fine must of course be

based upon evidence of complainant’s actual loss, and

his right, as a civil litigant, to the compensatory fine is

dependent upon the outeome of the basie controversy

(citing in fn. 81 the above- quoted discussion at pp. 294-

205 of 330 U8.I. by

’

The ‘outcome of the basie controversy” here rejected re-

spondent’s contention that the prior rules should be restored

to full foree and effect when Award 282 expired, so that

strikes intended to coerce the restoration of those rules were

illegal and recovery by petitioners for the damages caused

by such illegal strikes truly would constitute * compensa-

tion’’ rather than an undeserved *‘profit.”’

We suggest that it is one thing to say that a party cannot

collect compensatory damages for violations of a restraining

order or injunction that the se Aig had no jurisdiction

to enter or that was unsupportdble on the merits, and quite,

another thing to say that the same result obtains where the :'

error was of a non-fatal character that could have been

rectified by the trial court and that did not preclude the entry

of a permanent injunction. The pressures of time under

Ww hich temporary restraining orders are issued, particularly

where a strike is involv ed, generally are severe, and it is not

surprising that a trial court may not always be able to antici-

pate every possible objection or to avoid technical errors.

We suggest that, so far as compensa damages are con-

cerned, the burden on the injured party shout

than to establish that, hgd the trial court anticipated every

possible issue and had if applied the appropriate governing

principles, the restraining order could have issued, and

issued properly. Assuming that the holding by the Qourt of

Appeals in regard to the applicability of Section.8 of Norris-’

LaGuardia was correct, petitioners at least should have an

opportunity to demonstrate that the temporary restraining

order nevertheless cquld properly have been issued by prov-

ing either that they complied with Section & or that “the

imperatives of the Railway Labor Act”? overrode the re-

quirements of Section 8 in the cireumstances that existed

when the restraining order was issued. Petitioners should

not be forever precluded from recovering in compensatory

contempt for damages caused by strikes in violation of the

restraining order solely because of the trial court’s assumed

error in considering such proof to be unnecessary. Cer-

tainly, the Mine Workers decision is not to the contrary,

the cases cited in@line Workers for the dictum relied upon

below are not to the contrary, and we do not know of any

other decision denying recovery in compensatory contempt

because of an error of the kind found by the court below

to have been committed by the trial court -in issuing the

underlying restraining order. If such a far-reaching doc-

trine is to be established, it should be established by this

Court after due consideration 6f all the factors that may be

involved.

Consequently, we believe that the decision below on this

issue also deserves review by this Court and that certiorari

should be granted for that purpose as well as to review the

holding on the relationship between the Norris-La@Wuardia

and Railway Labor Acts.

— a> aout

‘ Conclusion .

lor the reasons stated above, the petition for writ of

certiorari should be granted.

Respectfully submitted,

SHEA & GARDNER Francis M. SHEA

734 Fifteenth Street, N.W. RicHarp T. Conway

Washington, D.C. 20005 WitiiAM H. Dempsey, Jr.

Of Counsel. 734 Fifteenth Street, N.W.

Ye. e Washington, D.C. 20005

JaMEes A. WILCOX = -

1225 Connecticut Ave., N.W.

Washington, D.C. 20005

Attorneys for Petitioners.

dew 2 la abl a_i alk Cre

APPENDIX A

- OPINION OF THE District Court*

Tue Court: This Court is of the opinion that a distinction

cannot be drawn between the right to impose a coercive fine

in order to enforce an injunction or a restraining order and

the right to compensatory damages for its violation.

The validity of the restraining order has been upheld.

ven if it was invalid there would be recourse to the decision

of the Supreme Court in the Mine Workers case to the effect

‘that even an invalid injunction must be obeyed and failure

to obey it is punishable as a contempt.

In view of these circumstances the motion to dismiss the

compensatory contempt proceeding is denied.

: s

ve,

‘

APPENDIX B ;

OPINION OF THE Court or APPEALS

On Appellant’s Petition for Further Relief To Enforce the

Court’s Prior Opinion and Judgment

Decided February 28,. 1969

Mr. Joseph L. Rauh, Jr. with whom Messrs. John Silard,

Daniel H, Pollitt, lsaac N. Groner, David Epstein, Stephen E.

Moss and Alex Elson, were on the petition, for appellant.

Mr, Richard T. Conway, with whom Messrs. Francis M.

Shea and William H. Dempsey, Jr., were on the opposition to

the petition, for appellees.

sefore: Dananer,* Burcer and Levenrnan, Circuit

Judges.

Per Curiam: In this case we grant the petition filed by

Brotherhood of Locomotive Firemen and Eneinemen

(BLE) for a ruling concerning the intention and effect of

our previous rulings in tle railroad work rules litigation.

It sullices for present purposes to recall that an action

was filed on March 24, 1966, by the nation’s railroads against

BLEE (Firemen), concerning the situation that would

confront the nation with the expiration on Mareh 31, 1966,

of the fireman-manning Award of Arbitration Board 282.

The Firemen were to strike on the ground that they had

given an appropriate notice in 1965, to take effect after the

expiration of Award 282, to increase the number of firemen

above that provided by the Award. The railroad had refused

to bargain over that notice, contending that it was non-

bargainable, They obtained a temporary restraining order

on March 28, against strikes by the BLF'E over any dispute

as to the rules to be applied by the earriers after the expira-

tion of that period. The BLFE struek certain carriers the

morning of March 31, and these strikes were specifically

enjoined by a supplement to the temporary restraining order

entered that day. The strike terminated on April 3. On

April 29 the carriers filed two motions—one for an order

(

* Circuit Judge Danaher became Senior Circuit Judge gn January 23, 1969.

acl

awarding compensatory damages for contempt, and one for

an order assessing a fine as a coercive penalty for failure to

terminate the contempt. 5 .

The ‘‘coercive contempt’’ matter came before us in No.

20316, wherein this court overruled BLFE’s effort to inter-

pose a defense based on the invalidity of the restraining

order under the Norris-LaGuardia Act. BLFE v. Bangor &

Aroostook R.R. Co., 127 U.S.App.D.C. 23, 380 F.2d 570

(1967). The court het that a coercive contempt fine could

stand even assuming the restraining order itself was beyond

the jurisdiction of the District Court by virtue of the Norris-

LaGuardia Act. It held the doctrine of United States v.

United Mine Workers, 330 US. 258 (1947), which allows

alleged contemnors to challenge the propriety of the under-

lying*order in defense of an otherwise éontemptuous disobe-

dience to be a ‘‘directive in regard to, tl right of defendants

in criminal and compensatory civil contempt proceedings,’

but declared that ‘prospec¥ive, sieve fase should be

enforceable despite a subséduent determination by the. Dis-

trict Court, or on appeal, that the disregarded order was in

fact beyond the ordering court’s jurisdiction.’’ See 127

U.S.App.DjC. at 36, 380 F.2d at 583.

_ That coercive contempt case, however, is not the subject

of our present consideration. In the opinion cited above

this court remanded to provide a trial to defendants on a

contested issue, and that proceeding is in the bosom of the

court. What we are concerned with is the other motion

filed by the carriers, for compensatory damages. The Dis-

trict Court declined to dismiss the compensatory contempt

proceeding. We think appellants are entitled to relief declar-

ing that such dismissal is a corollary that follows from the

rulings of this court on the merits.

In No. 20316, as noted above, this court (following Mine

Workers) pointed out that in a ‘‘compensatory’’ civil eon-

tempt proceeding—unlike a coercive civil proceeding—the

alleged contemnor establishes a defense if lie successfully

challenges the propriety of the underlying order.

The lack of propriety of the restraining order is estab-

lished by this court’s ruling on the merits in No, 20152 et al.

See opinion of May 12, 1967, and supplemental opinion of

July 31, 1967, reported together sub nom. Brotherhood of

Railroad Trainmen v. Akron & Barberton Belt R.R. Co.,

128 U.S.App.D.C. 59, 385 F.2d 581 (1967), cert. denied, 390

U.S. 923 (1968). In the May 12 opinion this court held, re-

versing the District Court, that there had been an unlawful °

refusal by the carriers to bargain with the firemen. In the

July 31 opinion we held! that the District Court had erred in

granting injunctive relief to the carriers without regard to

$8 of the Norris-LaGuardia Act,” in the mistaken view that

§ 8 was completely inapplicable. Section 8 provides that a

federal court shall not grant a restraining order in a labor

dispute where the complainant ‘‘has failed to comply with

any obligation imposed by law which is involved in the labor

dispute i in question.’’ We said (128 U.S.App.D.C. at 91-92,

385 F.2d at 613-14) :

The District Court erred in pe te that because

it held, correctly, that the action was not subject to

Section 4 of the Norris-LaGuardia Act, which would

have ousted the court of jurisdiction, it necessarily fol-

lowed that the ‘‘clean hands’’ provision of Section 8

of the Norris-LaGuardia Act was likewise wholly inap-

plicable. * * * In saying that the restraining order was

erroneously entered, however, we do not mean that —

would excuse a contemptuous violation.

The last sentence quoted related to the earlier ruling in

No. 20316 that the irregularity of the injunction would not

provide a defense in a coercive contempt proceeding. And

the July 31 ruling specifically affirmed and adhered to the

ruling in No. 20316—by,the same panel—that the District

Court was correct in holding that it had jurisdiction to en-

join a violation of the Railway Labor Act, and that this

jurisdiction was not negatived by § 4 of the Norris-La-

Guardia Act.* See 128 U.S.App.D.C. at 91, 385 F.2d at 613.

1 The particular ruling came in the context of discussing the plea of BRT for

recovery on their injunctive bond, but no one contends there is any meaningful

difference between the unions in regard to the question at bar. This court

assumed that the District Court would issue rulings applying and implementing

the decision of this court.

2 See 29 U.S.C. § 108 (1964).

3 Though at one point there is general language in No. 20316 that the Norris-

eded

However, as noted, the District Court acted mproperly in

the exercise of its jurisdiction when it did not heed the

“clean hands’? provision of $8 of that law.

The key mistake of the District Court lay in its assertion

that there is no distinction between the right to impose a co-

ercive fine in order to enforce an Injimetion and the right to

compensatory damages for its violation, and that in both

respects failure to-obey an invalid injunction is punishable

asa contempt.! That that is error is clear from the rulings

already quoted. The invalidity of the order is no bar to a

proceeding that vindiéates a public right, the authority of

the court. However the railroads’ right to compensation

depends on their establishing a private right, to the injune-

live relief, and in this case that right was negatived by their

own unlawful refusal to bargain on BLE ’s notice of a pro-

. posed change in manning work rules.

A question arises as to the appropriate form of relief,

While in some cases inandamus has been used," we see no

occasion to think in terms of formal mandates. The Distriet

Court is, we are confident, fully concerned to provide the

fresh outlook of settling disputes between unions and rail-

roads in furtherance of the Congressional objective of agree-

ment and harmony.® It is for that reason that we think this

an appropriate case to clarify the.intention of our prior

rulings, and pull out from the litigation a thorn that mighit

otherwise fester. It suflices for that purpose to issue this

opinion which will in due course be transmitted to the J)is-

trict Court.’

* Petition Grauted,

LaGuardia Net did not preelude the restraining order against BLIPE. it is cles:

from several places in context that what this court was troubled by and focused

on was the claim that defendants were being fined for Vioiating an order that

was beyond the jurisdiction of the District Court. Even this js no defense in a

‘coercive contempt proceeding, as noted above. but it was reassuring that the

District Court did in fact have jurisdiction notwithstanding $ 4. In exercising

that jurisdiction, it was required to observe the clean hands provisiun of § §.

tSce Tr. May 28. 1968, p. 62.

* See Federal Home Loan Bank y. Hall, 225 F.2d 349. 385 (9h Cir, 1955),

cort, denied, 350 US. 968 (1957).

® See 128 US.App.D.C. at 82-83. 385 F.2d at 604-5.

“CJ. SS. Kresge Co. v. Winget Kickernick Co., 102 F.2d 740 (Sth Ch rel

denied, 308 US. 557 (1939).

a ‘Soe 34

APPENDIX C

, ;

Orpen or tuk Courr or Appeats

Before: Danaher,” Burger and Leventhal, Circuit Judges.

( EDER

: Qn consideration of the petition of Brotherhood of Loco-

motive firemen and Hnginemen for further relief to enforce

tis Court's prior opinion and judgement, and of the respon-

i ~iVve pleadings filed with respect thereto, and after hearing

aretument hy counsel, it is

i Orperep AND Apscepcep by this Court that the aforesaid

i *petition is hereby granted to the extent set forth in the

opinion of this Court filed herein this date.

| Per Curiam,

Dated: February 28, 1969,

| Opinion per curiam.

Ciremt Judge Danaher became Senior Cireuit Judge on January 23, 1969.

»)

Setal. to terminate the stay of further proceedings : ;

The petition of Bangor and Aroostook Railroad Company,

APPENDIX D

“ORDER OF THE Court oF APPEALS*

Before: Danaher, Senior Circuit Judge, Leventhal ‘and

Robb, Cireuit Judges: in Chambers

Orprer

« The Clerk is directed to file all of the responsive pleadings

lodged with respect to the following: =

The motion of Bangor and Aroostook Railroad Company,

etal. for rehearing of the opinion and order of February 2s,

1909; ri

The motion of Bangor and Aroostook Railroad Company,

etal. to recall the mandate ane to clarify the opinion arid

judement ; : :

The motions-of the Brotherhood of Locomotive Firemen

and Enginemen for interim injunctive relief and for imme-

diate oral argument thereon, :

On consideration of the foregoing motions and responsive

pleadings, it is

Orperep by the Court that the stay of further proceedings

in the above entitled cases heretofore ordered on April 25,

1969 is hereby terminated, and it is. -

errier Orperen by the Court that the petition of Bangor

and Aroostook Railroad Company, et al. for rehearing, is

denies, and it is :

FcrrHerR Orperep by the Court that the motion of Bangor

and Aroostook Railroad Company, et al. to recall the man-

date and to clarify the opinion and judement is denied. and

it Is ;

Fertuer Orperep by the Court that the motions of

Brotherhood of Locomotive Firemen and Knginemen for

interim injunctive relief and for immediate oral arenment

thereon, are denied. -

* Filed October 23: 1969. =

The Court is of the view that the case does not warrant

revision of its outstanding opinions or mandates, and that

‘the interpretation and application of these opinions to the

fact situations now presented should be determined by the

Distriet Court in the first instance. The District Court has

contimung jurisdiction to hear and rule on requests for

interim or permanent injunctive reliet.

Per Curiam.

(8782-5)

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.