# Petition for Writ of Certiorari — Bangor & Aroostook Railroad v. Brotherhood of Locomotive Firemen & Enginemen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1414%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 397 U.S. 1024 ## Text | Office Supreme: Coort, US. : . FILED am 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. i 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? ee o eg 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 C II 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 / / / 29 92 26° 4 ] aw III fp 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 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: a ‘‘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. o - ee 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 | an | | 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 *s 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). ' 5) 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 s 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 C 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/ | he 8 / 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). «= < 9 : 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- 4 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® 10 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. » 12 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 4 , 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. 15 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 t ; 16 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 . 17 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. 18 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 7 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 es 3 #9 Ag \ 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). * 20 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 23 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. 24 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 28 ‘ 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 29 / 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, ‘ 30 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 31 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 32 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- a . 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. ») 7 a% 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. = ~ nh 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) 4 . \ . a * ‘ } ri ‘ ‘ F . “oF e ‘ - - ’ - ’ ~ . , . . ‘ : *% oe 7* > : ‘ ~ ¢ ® 3 Pa . ‘ ‘ - F : , > ‘ - . ‘ * . * r - By . ys = . ’ . e ’ * . ? 8 2 . . * . . ? --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1414%3A1. Public record. Not legal advice.