# Brief in Opposition — 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%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition - **Published:** January 1, 1970 - **Citation:** 397 U.S. 1024 ## Text Office-Supreme Court, US. FILED MAR 19 1970 annette JOHN F. DAVIS, CLERK IN THE oUPHEME COURT OF THE UNITED STATES” OCTOBER TERM, 1969 | ena No. 1099 BANG OR AND AROOSTOOK RAILROAD COMPANY, : “ET AL., Petitioners, Neg i x . %L Vv. BROT HE sa gets OF LOCOMOTIVA FIREMEN AND : aD NGINEMEN, Re sponde nt, « aiee OPPOSITION ne Joseru L. Ravn, Jr. JOHN SILARD Exuiortr C, LicotMan Rauh and Silard 1001 Connecticut Ave., N.W. Washington, D. C, 20036, Isaac N. GRONER Cole and Groner 1730 K Street, N.W. Washington, D. C. 20006, Attorneys for Respondent. a INDEX Page Counterstatement of Questions Presented ......... 1 Counterstatement of the Case .................... 1 Reasons for Denying the Writ ................... 7 I. The Court Below Has Properly Followed The Norris-LaGuardia Accommodation Principle Repeatedly Approved And Ap- PME Sey Rae NOES «55. oy oo he cs ca ve’ 7 Il. Since the Underlying Injunction Was In- properly Issued In Disregard Of Section 8 Of Norris-LaGuardia, No Predicate Re- mains For Award Of Compensatory Con- POUR: MUNRO AS ois oc cna eek Sec basi hens) 4 A OMOTUB HIE cone ia one Fee ce ee ee, 16 PRPC ee et a oe ana oot 17 Appendix Be. o.oo sees ROIS ALOU Shan) 9 ine 24 TABLE OF CASES Ss Bakery Drivers Union. Vv. Wagshal, 333 U.S. 437 .... 9 BLVEE v. Bangor & Aroostook R. Co.. 330 F. 2d Sth, COPE MC OME) eT ee ee 14 Brotherhood of Railroad Carmen vy. Chicago & N.W. Be Pa at ee ee Er a re ramen ented eee § Brothe Shand of Railroad Tr aimen v. De muer & . R.G.WR. Co., 290 F. 2d 206, cert. den. 366 U.S. 966 12 Brotherhood of Railroad Trainmen v. Toledo P. cadet at SMe <2) GS Se: a a ae PEPE 8, 9,12 Butte, Anaconda & P. Ry. Co. v. Brotherhood of ‘Loco, Fire. d& Enq., 268 F. 2d 54 ................ 8 Engineers v. Chicago R. I. € P.R. Co., 382 U.S. 423, EEO PONE oc ig oe ee eS ia et So 2 Florida East Coast Railway Co. vy. Brotlierhood of ~ Locomotive Engineers, 362 P. 2d 482 (5th Cir. - Riel bicep. 0 ovis 6 4s 6 He SKE Sie eee ee 5 peal olalt ee ACsiees MEARE Te nee 15 II Case—Continued Page Mastro Plastics Corp. v. NLRB, 350 U.S. 270 ...... 6 Milk Wagon Drivers’ Union vy. Lake Valley -Farm a ae Pe |e UP A re rere 8 Missouri-Ilinois R. Co. v. Order of Railway Conduc- bse Re Peo & | eee eee See aio a ere 8 NLRB v.C & C Plywood Corp., 385 U.S. 421 ...... 9 Pullman Company v. Order of Railway Conductors ¢€ Brakemen, 316 F. 2d 006, cert. den. 375 U.S, 820 8 Rutland Railway Corp. v. Brotherhood of Locomo- hve Engineers, 397 F.2d21:..:................: 8 Sinclair Refining Corp. v. Atkinson, 290 F. 2d 312, 2 Es UE SRS TOI ea eat ee 8,9 Teleqraphers vy. Chicago and Northwestern R..Co., COR hee ey ne ee 6, 8, 11, 12 Virginian Railway Co. vy. System Federation, 300 eel Te Oe eee MiIsceLLANEOUS Enjoining Strikes and Maintaining the Status Quo in Railway Labor Disputes, 60 Colum. L.. Rev. 381 Hearings before House Committee on Commerce, H.J. Res. 565, 88th Cong., Ist Sess. 59 (1963)... .. Hearings before Senate Committee on Commerce, S.J. Res. 102, 88th Cone., Ist Sess. (19GB? oho. ‘ea 5 Mera 6, 13, 14, 15 IN THE SUPREME COURT UF THE UNITED STATES ° OCTOBER TERM, 1969 No. 1099 = \ BANGOR AND AROOSTOOK - RAILROAD COMPANY, ET AL., Petitioners, Vv. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, pike Meadiet i BRIEF 1 IN OPPOSITION. Me Unankeutanins: of Ganetions Presented 1. Whether in Railway Labor Act disputes the Norris- LaGuardia Act is applicable to the extent that its Section 8 “clean hands” requirement bars grant of anti-strike in- Junctions to carriers violating the Railway Labor Act’s hasic bargaining duty? 2. Whether compensatory contempt damages may be awarded for violation of an injunction which was errone- ously issued in disregard of Section 8 of the Norris- LaGuardia Act? : Counterstatement of the Case This case involves an effort by petitioning carriers to collect: compensatory contempt damages on account of a strike provoked by their own violations of the Railway Labor Act, and on the basis of strike injunctions errone- ously issued in disregard of the “clean hands” bar in Set- tion S-of the Norris-LaGuardia Act. The circumstances (1) giving rise to the strike and the injunctions may be sue- cinetly stated. . 2 , During the two-y ar life of the Award under Publie Law 88-108, the BLF&E earnestly sought to negotiate the work rules and manning rights to apply upon the expiration of the Award on March 31, 1966. To facilitate timely agree- ment, in the fall of 1965 the BLF&E served three bargain- ing notices on the earriers, the most important of which was unquestionably Notice No.1 covering the subject of levels of fireman manning to apply upon expiration of the Award. The carriers, however, refused to bargain with the BLF&leé during the period of the Award, although Congress had hoped and anticipated that during that period the parties would come to agreement settling their differences on the Inanning issue,’ and even tlfough the carriers had unequivo- ‘ally promised Congress to undértake such bargaining.” See infra, Appendix A, at p. 18. ‘That theme is found in the preamble recitation of Publie Law 88-108 that it is desirable to achieve the stated objectives of the law “in a manner which preserves and-prefers solutions reached through collective bargaining,” and is emphasized throughout the legislative history. The precipitating message by President Kennedy urged a Congressional enact- ment which. would encourage “the parties to achieve their own solutions through collective bargaining” and provide “for an interim remedy while awaiting the results of further bargaining by the parties.” 109 Cong. Ree. 13004, 13006. Senator Morse underlined that the two-year arbitration “would encourage and stimulate the parties to continue to bargain in order to develop final solutions ...”° 109 Cong. Ree. 15976. Secretary of Labor Wirtz made the same point in his Senate testtmony, ‘when in response to SenatoraPastore’s question about the temporary nature of the arbitration he hi “T would assume, Mr, Chairman, in complete good faith within that two-year period the parties would have worked out the resolution of this matter.” ,Hearings before the Senate Committee on Commerce, on S.J. Res. 102, 88th Cong., Ist Sess., 49-50. This Court underlined this clear Congressional intention when it noted that the President had recommended legislation “for an interim remedy while awgiting the results of further bargaining by the parties.” Engineers v. Chicago, RI. & PR. Co., 382 U.S. 423, 431 (1966). * Chairman James E. Wolfe of the National Railway Labor Conference stated before the Senate Committee that during the two-year period “the parties themselves, as they eventually will have to do some time or another, The BLF&E was presented with a serious dilemha by the carriers’ refusal to bargain. The situation was laptly characterized in statements which the carriers themselves submitted to the District Court in their subsequent dppli- cation for an anti-strike injunction. As the carrierk set forth in the affidavit of James EK. Wolfe (pp. 26-27 of Joint Appendix in No, 20,316 in the Court below): “Frank C. Porter of the Washington Post reported in the Januaty 19 issue of that new spaper that: ‘President H. Ek. Gilbert of the Brotherhood of Locomotive Firemen and Kngindgmen, AFL-CIO said a strike could come March 31 if the eas rs refuse to bargain on restoration of firemen to fre ‘ight and vard engines’... ‘D. C. (Del) Deering, Vice Presidgnt of the AFL-CIO Brotherhood of Locomotive Firemen and Iin- ginemen said in an interview... that the S Santa Fe,: ‘Jouth- ern Pacifie and four other Piilecuda will be struck Mareh 31 unless management agrees to negotiate for. Cale of the jobs of firemen.’ ” (emphasis supplied). tae] The BLFE&E determined that, in view of the carriers’ bargaining refusal, its only recourse was to strike. There- upon, just prior to the Award’s expiration the carriers obtained from Judge Holtzoff a temporary anti-strike restraining order on March 28, 1966, and then a supplemen- tal temporary restraining order on March 31, 1966. Judge Holtzoff declined to entertain the BLF&E objection that “the carriers have at all times refused to bargain, thereby ‘violating Section 8 [of Norris-LaGuardia |” because, as the ‘arriers concede (Pet. p. 8), he “held Norris-LaGuardia in its entirety to be inapplicable” to controversies under the . Railway Labor Act. will finally dispose of these ; a disputes by collective. bargaining.” Indeed, Mr. Wolfe promiscd the House Commerce Committee that “we will be willing to bargain under any circumstances.” Hearings before the Senate Committee on Commewe, on S.J. Res, 102, 88th Cong., Ist Sess. 364 (1963); hearings before House Committee on Commere e,on H.J. Res., 565, 88th Cong., Ist Sess., 559 (1963). , eds | 4 Thereafter, in its decisions‘of May 12 and July 31, 1967, the Court of Appeals found the carriers to have been guilty of refusal to bargain as required by the Railway Labor Act, and to have been precluded from the injunctive relief granted by Judge Holtzoff by virtue of the “clean hands” bar in Section 8 of the Norris-LaGuardia Act. The rele- vant portion of the May 12, 1967 opinion holding the ear- riers to have been in Violation of the Railway Labor Act bargaining ‘duty appears’ in Appendix A, infra” p. 17. There the Court of Appeals rejected the carriers’ eonten- tion that during the life of the Award they were freed from their collective bargaining duties under the Raily ray Labor Act (infra, at p. 19). Accordingly, the Court ruled (infra, at pp. 22-23) that since ‘‘the carriers flatly refused to engage in any statutory bargaining whatever prior to the expira- tion date... the carriers before-us must be held to have breached their statutory ee under the Railway: Labor Act to conter and bargain on the merits of proposed changes in work rules.” . Recognizing that its May 12, 1967 opinion did not decide all the issues, the Court of Appeals invited the parties to brief the relevant remaining questions (385 F. 2d at p. 605). Among the issues then briefed and subsequently disposed of in the Court’s Supplemental Opinion of July 31,,1967, was the impact of ‘its finding of unlawful carrier refusal to bargain upon the validity of the injunctive relief issued by Judge Holtzoff. The question arose specifically over the trainmen’s request for recovery on their injunction bond. They based their claim on the ground that Judge Holtzoff’s injunction had been issued in, _Violatian of Section 8 of the Norris-LaGuardia Act, Which bars injunctive relief to a party in a labor dispute who, has not met his bargaining obligations. 8 e i) The portion of the July 31 opinion disposing of ‘ie Sec- tion 8 question is set forth in Appendix B, infra, p. 24. There the Court of Appeals allowed recoy ery by the union on the injunction bond, finding that “the restraining order was erroneously entered” since Judge Holtzoff had disre- garded: Section 8 of Norris-LaGuardia (infra, p. 26). AS the Court succinetly put it (infra, p. 24), the District Court “erred” in issuing its restraining order “because—as we have subsequently held in our May 12, 1967 ruling—the complainant carriers had failed to comply with their obli- gations under the Railway Labor Act.” As the Court em- phasized, accommodation of the requirements of ‘Section & with those of the’ Railway Labor Act is a principle con- firmed by rulings of this Court and lower courts (infra, p. 25, n. 4) and application of Section 8 of Norris-LaGuar- dia “would not trammel but would rather further the effee- tuation of that Railway Labor Act: 4 vor it ensures compli- ance by complainant carricr or gnion which cannot seck an mjunction until and unless it has discharged the obligations imposed by the Railway Labor Act ”* (infra, p. 25; emphasis supplied. )* *In view of the clear applicability of Section 8 there was ne need for determination in the Court below whether the BLF&E strike which was enjoined by Judge Holtzotf was ia any sense illegal, but we cannot refrain from noting the clear error in the carriers’ claim that it w fie The authorities make quite clear that a union may lawfully strike a carrier refuses to honor its Railw: ay Labor Act obligations. As the Court of Appeals emphasized in uiber Industrial Workers v. Board of Trustees of Galveston, 400 F.2d 320, 334 (Sth Cir. 1968) cert. denied, 395 U.S. 905: STF the carrier refuses . os Yolen the procedures ot the Act, or if those procedures are followed to an impasse, the Union may SEA The Union's right to batgain, enaranteed by the Act} 45 U.S.C. § 152, Fourth, and presently entoreed by this Court, would be illusory without a right to strike when bargaining has run its course if the Carrier continues to refuse Similarly, in Florida™fast Coast: Railw ay Co. y. Brotherhood of Loco- motive Engineers, 362 F. 2d 482, 485-86. the Court rejected a elaim that the Union was barred-from striking when the carrier had failed to comply with the Railway Labor Act: “The action of the Unions in striking, was a ° : : : Ne Fi = 6 he - ; . ‘ é f i While the ruling concerning the invalidity of Judge Holtzoff’s grant of injunctive relief was over an issue particularly involving: the trainmen, the holding clearly rendered equally invalid the injunctions contemporaneously issued by Judge Holtzoff against the BLF&E. Accordingly, the BLF&E moved for dismissal of: the pending compensa- tory contempt proceeding wherein the carriers sought to recover damages for alleged violations of Judge Holfroff’s injunctions against the BLF&E. Judge Holtzoff,, however, denied dismissal of the compensatory contempt proceeding on the erroneous view that the doctrine of the Mine Workers case permits not only punitive but also compen- satory contempt awards based on an invalid injunction (see Pet., p. 29). ° . ei Qn February 28, 1969, in the decision the carriers now proffer for review, the Court below reversed Judge Holtz- aff. In its decision, the Court reemphasizes (see Pet., p. 33) - its earlier holding that in issuing the injunctions “the* Dis- trict Court act tion when it did not heed the ‘clean hands’ provisigwot § 8 fof Norris-LaGuardia]”. The Court below holds that the compensatory contempt proceeding must be dismissed be- cause (Pet., p. 31) “in a ‘compensatory’ civil contempt pro- ceeding . . . the alleged contemnor establishes a defense if s not in derogation af the processes of the Railway Labor Act. It was in support of the Act. The unions were. not striking to change rules, pay rates, or working cpnditions; they were striking because the carrier hat violated the Act by| making such changes without following the statutory procedure required-in the Act. They did not have unclean hands under these circumstances . . .”\See also Telegraphers v. Chicago and Northwestern R. Co., 362 U.S. 330, 338-341 (1960), rejecting the carrier’s contention that the strike was Quo in Tai Comment, Enjoining Strikes dnd Main- taining the Status Quo in Railway Labor Disputes, 60 Colum. L. Rev. 381, 389, fn..51 (1960). Cf. Mastro Plastics Corp. ¥. NLRB, 350 U.S. 270 (1956). This ifis clear from the decisional law that the BLF&E did not in fact transgress the Railway Labor Act when it was provoked to resort to self help by the carriers’ violation of their statutory bargaining aad improperly in the exercise of its jurisdic-_ : 7 he successfully dhiioneen the-propriety of the underlying order. The lack of propriety of the restraining order is established by this court’s [1967] ruling on the merits . . .” We demonstrate hereinafter that, contrary to the carriers’ suggestion, the Court below acted quite properly, both in ‘holding that application “of Norris-LaGuardia Section 8 “would not trammel but would rather further the effectua- tion of the Ratiway Labor Act”, and in its holding that the erroneous issuance of the underlying injunction, in disre- gard of Section 8, removed the predicate for award of any compensatory contempt damages. ; : REASONS FOR DENYING THE WRIT I The Court Below Has Properly Followed The Norris- LaGuardia Accommodation Principle Repeatedly nil proved And Applied By This Court. Applying the “clean hands” requirement of Norris- LaGuardia’s Section 8, the Court below held that carriers flaunting the Railway Labor Act duty‘of collective bargain- ing were not entitled to injunctions prohibiting a strike by the rebuffed union. In so doing, the Court of Appeals expressly applied this Court’s a ‘accommodation” principle, which seeks to give effect td the Norris-LaGuardia Act except where to do so would nullify a specific provision of a subsequently enacted labor law. Here the Court of Ap- peals found confluence rather than conflict between. the Railway Labor Act’s bargaining duty (violated by the car- riers) and the thrust of Norris-LaGuardia’s. Section 8 which denies injunctive relief to a party violating that duty. Having already been denied review of that ruling below (No. 863, Oct. Term, 1967), the carriers are. here for a sec- ond try. They again attack the accommodation ruling below, asserting that this Court has generally held Norris-La- < | Guardia inapplicable to the Railway Labor Act disputes (Pet. pp: 19-20). They claim that a “clear line:of demarea- tion” will be obscured if federal courts engage in “separate and diverse ‘accommodation’ of each provision of Norris- LaGuardia even in circumstances where enforcement of the mandates of the Railway Labor Act is involved, rather than disregarding Norris-LaGuardia in its entirety ...” (Pet. '21-22). But, contrary to the carriers’ claim, this Court has long approved and applied an accommodation principle which Seeks to give effect to Norris-LaGuardia even in la- bor disputes generally regulated by subsequently -enacted federal statutes, except where to do so would nullify a spe- cific and important provision of the later statute. Thus, the Court has upheld the application of Norris-LaGuardia not only to labor’ disputés which may involve a violation of the Sherman Act (Milk Wagon Drivers’ Union v. Lake Valley Farm, Products, 311 U.S. 91, 108 (1940), but also to those under the Railway Labor Act (Telegraphers v. Chicago & N.W- Ry. Co., 362 U.S. 330 (1960); Brotherhood of Rail- road Trainmen v. Toledo P.€W.R. Co., 321 U.S. 50 (1944)* ' 4The Courts of Appeals- have emphasized that the Norris-LaGuardia Act “prohibits the issuance of an injunction in a railway labor case involving a ‘major dispute.’ ” Butte, Anaconda & P. Ry. Go. v. Brother- hood of, Loe. Fire. & Eng., 268 F. 2d 54, 58 (9th Cir. 1959). They have uniformly reeognized the limitations which Norris-LaGuardia imposes. upon the power of District Courts to issue injumetions restraining strikes when “major disputes” under the Railway Labor Act are involved. Brotherhood of Railroad Carmen vy. Chicago & N.W. Ry. Co., 354 F. 2d 786 (8th Cir. 1965); Missouri-Illinois R. Co. w Order of Railway Con- ductors, 322 F. 2d 793 (8th Cir. 1963); Pullman Company v. Order of | Railway Conductors & Brakemen, 316 F. 24.556 (7th Cir. 1963), ‘cert. denied, 375 U.S. 820 (1963); Rutland Railway Corp. v..Brotherhood of Locomotive Engineers, 307 F. 2d 21 (2d. Cir: 1962). Cf. Sinclair Refining Company V. Atkinson, | 290 F. 2d 312 (7th Cir. 1961), aff'd, 370 U.S. 195 (1962). The present issue, of course, arose from the ,“ major dispute” over the BLF&E's hargainings proposals which the carriers refused to negotiate. - 3 9 ; \ * . 7 ! ’ and under the National Labor Relations Act (Sinclair Re- fining Co. v., Atkinson, 370 U.S. 195: Bake ry Drivers Union v. Wagshal, 333 U.S. 437, 442; ef. NLRB vy. C&C a ood - Corp., 385 U.S. 421, 429, n. 15). he Soon after Norris-LaGuardia, Congress nica the 1934 ‘Railway Labor Act provisions and the 1935 National Labor Relations Act, without specifically, purporting ejther to ; limit or preserve application of the Norris-LaGuardia Act’s ; restrictions on injunctive relief to parties. The inevitable question of statutory construction .concerning injunctive enforcement of the later statutes’ provisions came before this Court in Virginian Railway Co. v. System Federation, 300 U.S. 515, 563 (1937). This Court, in approving the Dis- trict Court’s injunction requiring the employer to bargain with the union certified by the National Mediation Board, found the employer’s Norris-LaGuardia objections “strained and unnatural constructions” conflicting with that Act’s “declared purpose”. It went on to warn that in any event “the Norris-LaGuardia Act can affect the present decree only so far as its provisions are found not to conflict with those of Section 2, Ninth, of the Railway Labor Act . Such provisions cannot be rendered nugatory by the earlier and more general provisions of the Norris-La- Guardia Act.” This basic accommodation rule announced in Virginian Railway—seeking to give effett to the Norris- LaGuardia Act “so far as its provisions are fotind not to conflict” with specific rights incorporated in subsequent labor legislation—has been consistently followed by this. Court in subsequent railway labor cases. Thus, in: Brotherhood of Railroad Trainmen. v. - Toledo, P. & W.R. Co., 321 U.S. 50 (1944), Norris-LaGuardia was held to bar a District Court injunction against union acts of theft and violence threatening company ‘property. and operations. There the carrier had refused to arbitrate tlle \ 10 : underlying bargaining dispute under the Railway Labor . Act, thus invoking the stricture of Section 8 of Norris- LaGuardia that a party seeking injunctive relief in a labor dispute must first have made “every reasonable effort” to settle the dispute. This Court found as concerns Section 8 (321 I.S. at p. 56) that the carrier’s “steadfast refusal to agree to arbitration under the Railway Labor Act’s provi- sions made the section operative.” Moreover, the Court specifically answered the objection that by application of Section 8 it was In effect requiring the carrier to accept an arbitration procedure which the Railway Labor Act does not make mandatory. In that respect, it noted (321 U.S, at p. 57, n. 12) that when Norris-LaGuardia was enacted the original Railway Labor Act of 1926 was already in force, : and continued (at p. 58) : : “Section 8 is not limited to railway labor disputes. But it includes them. And its very terms show they were used in explicit contemplation of the procedures and machinery then existing under the Railway Labor Act and with the intent of making their exhaustion condi- ° tions for securing injunctive relief, not singly or al- ternatively, but conjunctively or, successively, when available. This purpose of Congress is put beyond question when the section’s legislative history is con- sidered inthe light of the history and the basic com- mon policy of the two statutes, the Railway Labor Act and the NorrisNuaGuardia Act. The policy of the Rail- -way Labor Act was to encourage use of the nonjudicial processes of negotiation, mediation and arbitration for -the adjustment of labor disputes . .. The over-all policy of the Norris-LaGuardia Act was the same.” The Court further underscored, (at p. 56) the direct nexus between arbitration under the Railway Labor Act’ and Norris-LaGuardia’s clean hands rule: “Clearly arbitration 1] under the Act was a method, both reasonalle and available, which respondent refused to employ, not once, but repeat- edly and adamantly. If it had been used, it would have averted the strike, the violence which followed, and the need for an injunction.’’ Obviously, if refusal of arbitra- tion (which is fot mandatory) brings Section 8 into oper- ation, refusal to bargain (which is mandatory) is an even , more compelling reason for that result. The accommodation principle is confirmed also by the subsequent rulings in the Trainmen (Chieago River) and Telegraphers decisions. In Trainmen v. Chicago River & IR. Co., 353 U.S. 30 (1957) this Court found the Railway Labor Act’s compulsory arbitration procedure in minor dispute cases to*require, notwithstanding Norris-LaGuard- ia’s anti-injunction policy, that District Courts enjoin a union “from striking to defeat the jurisdiction of the Ad- justment Board’ while a minor. dispute is pending: before the Board (353 U.S. at p. 39). But.in so doing, the Court again emphasized the general accommodation principle -(at p- 40): . “We hold that the. Novia: hapanntis ro cannot be read alone in matters dealing with railway labor dis- ". putes. There must be an accommodation of that statute and the Railway Labor Act so that the obvious pur- pose in the’ enactment of each is preserved. We think © that the purposes of these Acts are reconcilable.” More recently, in Telegraphers v. Chicago.& N.W. Rail- » way, 362 U.S. 330 -(1960), this Court held that Norris- LaGuardia’s anti-injunction. provisions apply to bar judicial restraint of a strike in aid of union bargaining demands asserted pursuant to the Railway Labor Act. The Trainmen case was explained as an exception to the. accommodation principle, where a strike injunction was ¢ authorized “to prevent a plain violation of a basic command of the Railway Labor Act .. .” (3862 U.S. at 339). “Here, far from violating the Railway .LaboreAct,” the Court con- tinued in Telegraphers, “the union’s effort to negotiate its contrpversy with tHe rasieoad ene 3 in obedience to the Act’s covfinand that employees as. well as pater exert every reasonable effort to'settle all’ disputes ...”° In the present case the Court of ‘Asineals has followed the accommodation principle announced in Virginian Railway, affirmed in Trainmen, and applied in the Toledo and Teleg- raphers decisions. The holding below that carriers cannot wrongfully refuse to bargain and then obtain injunctions against the union’s recourse to a strike is predicated pre- ‘cisely upon the point emphasized in Toledo, that Section 8 . of Norris-LaGuardia does not undermine but actually sup- ports the common purpose of both Acts .“to encaurage use of the nonjudicial processes of negotiation ... .” The Court of Appeals sought to give vitality to the solic bars gaining mandate by subjecting carriers who flaunted that Railway Labor Act obligation to the clean hands rule of Norris-LaGuardia./The decision below thus gives effect. fo “the basic common policy of the two statutes, the Railway Labor Act and the Norris- LaGuardia Act” .(321 U.S. at = -o ° There is no merit to the petitioners’ suggestion that the ruling below conflicts with that of the, Tenth Cireuit in Brotherhood of Railroad Trainmen v. Denver .€& R.G. Ww. R. Co., 290 F.2d 266 (1961), cert. denied, 366 U.S. 966..That case involved an injunction against a strike over the earrier’s refusal to pay an Award of the Adjustment Board. It appears (see Petition in No. 979, Oct. Term 1960, ‘:p. 19) that the Section 8 claim was based on the railroad’s non-payment of the Award—certainly a dubi- ous contention under that section. In any event, all that the Court held in- rejecting the Section 8 claim was that the mandatory Adjustment Board procedure, which this Court. vindicated in the Trainmen case by approv- ing an injunction, remains the exclusive procedure at thé subsequent stage of judicial review. The Tenth Circuit opinion relies on the Trainmen rul- ing, and is simply a logical corollary of its principle that the statutory minor dispute arbitration procedure may he protected by judicial injune- tion. get ogeredige TE cor xe 13 ) p. 58). The radical departure of the carriers from the deci- sions of this Court would irrationally inhibit operation of Norris-LaGuardia and equally disserve the key purpose of the Railway Labor Act, for it would reward-a nonbargain- ing carrier by enjoining the strike provoked by its own statutory violation. The result approved below is in évery sense appropriate and there is no ground for reconsidera- tion here of this Court’s well established accommodation ~ doctrine. i 3 Since the Unabriving Injunction Was Improperly ‘Issued In Disregard Of Section 8 Of Norris-LaGuardia, No ' Predicate Remains For Award Of Compensatory Con- mpt Damages. Tn its ruling in United States v. United Mine Workers, 330 U.S. 258, 294-295 (1947), this Court definitively ruled that,. although the invalidity of the underlying injunc- tion may still permit punitive contempt proceedings, it precludes the possibility of compensatory contempt re- lief. The Court warned that “it does not follow” from the rule applicable in punitive contempt that a plaintiff “may profit by way of a fine imposed in a simultaneous proceed- ing for civil « contempt based upon a violation of the same ordér. The right to remedial relief falls with an injunction which events prove was erroneously issued .. .” As the Court of Appeals ruled on July 31, 1967 (see infra, Appen- dix B, p. 24) and re-emphasized in the decision now before this Court (Pet. at p. 33), “the District Court acted im- properly in the exercise of its jurisdiction when it did not heed the ‘clean hands’ provision of Section 8 jof Norris- LaGuardia]” since the nonbargaining carriers were not , cutitled to injunctive relief. Applying the self-evident prin- ciple confirmed by Mine Workers, the Court below dis- - 14 missed the carriers” compensatory contempt proceedings because “the railroads’ right to compensation depends on their establishing a private right, to the injunctive relief, and in this ease that right was negatived by their own an- lawful refusal to bargain ... .’’ (Pet., p. 33). The carriers, however, urge (Pet., p. 15) that in this case the flaw in the issuance of the underlying injunctions was _ merely “technical error” which should not eause invocation of the Mine Workers limitation. But their*plea of technical- _ ity hardly merits serious consideration. Thus, in the “coerce? _ ive contempt” proceeding in the Court below (No. 20,314, . BLF&E v. Bangor & Aroostook R. Co., 380 F. 2d 570 (1967), cert.. denied, 389 U.S. 327) ‘the carriers’ brief (pp. 26-31) confessed that “sqund reasons” support this Court’s pronoungement in Mine Workers “that a civil compensa- tory fine cannot stand after reversal of the underlying order,” As the carriers conceded, “Of course & plainti ff may not profit by way of a civil contempt fine fo¥ damages sus-. tained through violation of a Court order, if the order is later determined invalid, since he could not have suffered damages in.a legal sense.” Now, however, the carriers would dismiss as a dictum intended to have only limited applica- tion, this Court’s. emphasis.in Mine Workers that “the right to remedial relief falls with an injunction which events prove jwas erroneously issued.” Petitioners suggest -(Pet., _p. 25) that this Court meant to bar compensatory contempt only where it is established that the underlying: injunc- tion should have been: denied “on the merits rather than because of some correctable procedural or evidentiary ir- ete a ‘n response to that remarkable suggestion perhaps it should suffice that just as science repels the concept of + partial pregnancy our legal system knows no principle of partial illegality. When the carriers urge that the invalidity - bod of the underlying injunctions be overlooked because under different circumstances the judicial error might have been avoided, they proffer an argument too conjectural for prac- tical’ application. When for any reason an injunction for whose violation damages are sought has finally been held erroneous, there simply remains no valid judicial order to support compensatory contempt relief and it is quite beside the point what might have happened had the court avoided the error which invalidated its injunction. In any event, there remains-the plain fact in this case that the District Court’s disregard of Norris- -LaGuardia simply cannot be dismissed, as the carriers would dismiss it, as some “correctable procedural or evidentiary irregularity”. The clean hands requirement of Section 8, as this Court emphasized in Toledo (see supra, p. 10), is not a proce- - dural nicety but a substantive rule incorporating a vital Congressional policy reflected both in Norris-LaGuardia and the Railway Labor Act, As the Court put it, the re- quirement for exhausting all avenues of bargaining and negotiation is a “basic common policy” of the Railway: La- hor Act and Section’ 8 of Norris-LaGuardia..’ Thus, a District Court which issues an injunction in dis- _regard of Section 8 of Norris-LaGuardia commits funda- mental and substantive error. The statute denies to carriers flaunting the Railway Labor Act’s bargaining requirement an injunction against a strike provoked by their law viola- ‘tion. That they should nevertheless have compensatory damages based upon the injunction erroneously issued is a - result precluded by Mine Workers, by the general doctrine of “clean hands”, and the salutary principle that no man | shall profit from the consequences of his own wrongdoing (Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231 ). The carriers having provoked a strike by violation of their bargaining obligations, they cannot shift fo the union the =? t s . 3 y A P ’ ‘16 f ; é ‘\ consequences flowing from their precipitating statutory violation. Conclusion : Both of the legal principles the carriers now challenge emanate from historic decisions of this Court. In Virginia’ Railway the Court announced the Norris-LaGuardia ac- commodation ‘principle which it. has consistently fallowed sinee 1937, and in Mine Workers it affirmed thé self- evident principle precluding compensatory contempt relie basedyon an invalid injunction. Both of the doctrines the carriers seek to challenge have long ago received the con- sidered approbation of this Court. Sinee no reason has heen set forth for their reconsideration at ‘this point in | ‘time or in the context of this long and complicated litigation concermug fireman manning, it is submitted that the writ shoutd be denied. a ty . Respectfully submitted, < Joseru L. Ravn, Ir. , ot JOHN, SILARD A ad Exurorr C, LichtMAN “a : Rauh and Silard : 1001 Connectieut Ave., N.W. Washington, D, C. 20036, ane Isaac N, GRONER_ Cole and Groner 1730 K Street, N.W. Washington, D. C. 20006, Attorneys for Respondent.. < 17 APPENDIX A Extract From The Decision Of The Court Of Appeals For. The District of Columbia Circuit, May 12, 1967 dn Brotherhood of Railroad Trainmen v. Akron & BB. R. Co. (385 F. 2d 581, cert. den. 390 UA). A Tee | | ’ We turn now to the question to what extent and by what procedure the parties could and did lawfully invoke the machinery prescribed by the Railway Labor Act in order to change the work rules in effect on the railroads at the expiration of the Award, rules’that had been prescribed by the Board (including the crew consist rules prescribed by various: local boards). es Sp As already stated, these work rules were not immutable. Congréss had enacted a compulsory arbitration measure of limited duration.” The appropriateness of a limited duration for a compulsory arbitration measure, articulated by the Supreme Court 50 years ago-in Wilson v. New, had heen emphasized by the President and Congress." ~ When were the parties to bargain about possible changes in the work rules that survived the Award? All parties agree that negotiation during the pendency of Award 282 Was permissible, /but the carriers say it was ‘not obliga- bargain concerning changes- after the expiration of the Award. The principles and objectives underlying Pablie Law 88-108 reveal that Congress placed a high premium on the opportunity for continued collective bargaining during the life of the Award, in the hope and expectation, appar- proposed’ to become effective '® See note 10 supra. 18 ently shared at that time by the parties themselves, that the unions and carriers would themselves work out a long range solution to these sensitrve problems by the tradi- tional devices of collective bargaining. This special statute served to give the Nation a temporary respite from the threat of a disastrous national rail strike by forbidding for two years any unilateral changes or resort to self- help and imposing instead interim rules to cover the situa- tion. But as we have seen, both the statute and the Award expressly contemplated that the parties were free to alter or extend the rules fixed by Award.” Publie Law 88-t08 established a procedure for formulat- ing rules to govern for up to two years, in the absence _ of a negotiated pact. This did not displace the otherwise applicable provisions of the Railway Labor Act on the duty to bargain on changes proposec to become effective subsequent to the two-year period. President Kennedy in his message to Congress expressed the desire that the parties continue to confer on the ultimate resolution, of their disputes.” A chief spoKesman for the carriers, Mr. J. E. Wolfe,”’ assured the Senate Committee that the car- riers understood that the Administration’s bill “imposes a duty on the parties.to attempt to settle their differences” and would “protect the public interest as a result of the establishment of these interim rules’ for a period of 2 years or less while the parties undertake, through collec- tive bargaining, to bring about a more permanent solu- tion of the problems.’’ ** We are aware that in the reshap- ing of the measure the duty to bargain on the work rules was not expressly spelled out, but the plan was surely retained. Indeed the preambles of both measures expressly ' Indeed, on the crew consist issue, Section III.A(1) of the Award remanded ‘the dispute to local properties “for negotiation”, and only if these further efforts to reach a settlement proved pointless were special boards of adjustment to be convened to fix. the temporary rules. 2° See Message from the President, supra note 7, at 6-8. 2! Chairman of the ‘National Railway Labor Conference, an organization whose members conduct about ninety percent of all railway operations in the United States. ; 22 Hearings on S.J.Res. 102, Before the Senate Comm. ‘on Commerce, 88th Cong., Ist Sess., ser. 24, at 375 (1963). 19 - » and unequivocally proclaimed the care taken to select a system which solved the immediate emergency “in a man- - ‘ ner which preserves and prefers solutions reached through collective bargaining.” Changes were made by the Con- gress—notably the substitution of an indefiendent ad hoc hoatd for the Interstate Commerce Commission as the arbiter for the dispute.* There was not a breath of a suggestion, however, that Congress intended to remove or even downgrade the policy thatthe parties. themselves .Should confer in order to reach * long-range solutions through collective bargaining and agreement. The carriers contend that all this means only that the _ parties were free to bargain during the Award if they wished, or even that they were encouraged to do so, but that for the two-year period the special act repealed pro tanto and by implication the duty under the Railway Labor Act to confer on proposed rule changes. We disagree. In our view Public Law 88-108 was intended to work the minimum disruption of permanent railroad legislation and normal collective bargaining. The only disruption wrought, the only “repeal by implication”, was that which neces- sarily accompanied the objeetive of staving off a cataclys- mie strike by imposing a temporary settlement. We detect no glimmer of an intimation that the carriers were author- ized to regard this as a two year hiatus in their obligation to bargain. Rather, we find much to militate against such a construction. It is notabie that the parties to this dispute had already agreed to submit their controversy to arbitration. They stumbled over procedural details. Congress viewed its role primarily as draftsmen of the specifics of an arbitra- tion agreement to which the -earriers and unions had already agreed in principle.* The statute in Section 4, the Award in Part IV, and the reports of both congres- °° The Supreme Court referred to this substitution as the only “signifi- cant change” from the Administration bill. Brotherhood of Locomotive Engineers v. Chicago, Rock I. & Pac. R.R.f supra note 4, 382 U.S. at 432. ** See S. Rep. No. 459, 88th Cong., Ist Sess. 9 (1963); H.R. Rep. No. 713, 88th Cong., Ist Sess. 12-13 (1963); Brotherhood of Locomotive Fire- men v. Chicago, B. & Q. R.R., 225 F. Supp. 11, 18 (D.D.C.) aff'd, 118 U.S.App.D.C. 100, 331 F. 2d 1020, cert. denied, 377 U.S. 918 (1964). F 2() ‘ sional. committees carefully specified that the effective duration of the Award was piinites to no more than two years, unless extended by stipulation, im order to restrict the ‘‘seopé. and :impact’”’ of the statute.2® In essence then we have a mechanism tantamount? to an arbitration agreementy albeit one drafted by Congress, that confers on the arbitrator the power to impose a settlement binding for up to two years. It becomes approt riate, then, to consider what would have been the rights and duties of the parties if they had themselves written the arbitration agreement. We are not concerned here. with customary -adjudicatory or grievance arbitration. Although so-c: illed “legislative” arbitration agreements are relatively infrequent they are not unknown. Under such agreements, prospective rules and working ion in- stead of being determined by agreement of the uniok& and employer, as is customaryare determined by an arbitrator to whom the function is delegated.” Such a determination: by arbitration is equivalent to a determination by agree- ment insofar as @he rights and duties of the parties concern- ing future modification are concerned. An arbitration award does net operate to “prevent the /| parties] from seeking through negotiations under the Arocedures provided for: by the Railway Labor Act or otherwise a new agreement . covering the rules. . 777" ~ Responsible conduct of the process of collective bar- gaining, for consideration of proposals to modify work rules established by an. agreement or award of limited duration, embraces conference and consultation prior, to the termination date. This is the way responsible husi- nessmen deal with each other when the: ‘vy plan to continue: a business relationship—for example, in negotiating oh a contract or lease before its expiration date. This is the ‘way responsible employers and unions implement the col- 25S. Rep. No. 459, 88th Cong., Ist Sess. 10 (1963) 5 see H.R. Rep. No. #45) 88th Cong., Ist Sess. 14-15 (1963). ®’ See Evxourt & Evxourt,*How Arsirration Works 30- a7. (rev. ed. - 1960). ~ 27 Sheehy, Ch.J., in Brotherhood of Railroad Trainmen vy. St. Louis Sw. Ry., 220 F. Supp. 319, 325 (#.D. Tex. 1963). > er f ~ ae ee XN lective bargaining process, and respond to calls for change. And this is the way railroads and railroad unions must respond under the mandate of the Railw ay Labor Act. The purpose of a Section 6 notice is “to fix a pro- cedure for the commencement of conferences between rep- resentatives of the two parties if changes are to be made in the contract.” ** No rigid form for these notices is defined in the statute.”® All that is specified is thirty days written notice of a proposed, change. The Act requires that within ten days a tinge and place for conference be set, and that the first conference be held lias the 30- day period. To recapitulate, the Railway Labor Act not. ony re- quires railway ‘employers and unions to confer and argain on work rules established by agreements or awards havirg a fixed, expiration date when one party wants to change the rules, but permits the statutory machinery to be invoked prior tc expiration in order to seek an agreement — on changes to become effective on or after expiration. If an agreement (or award) contains a fixed expiration date, rather than theyommon indefinite or automatic seif- renewal term, then the notice must Indicate a proposed effective date for changes that is not only at least thirty days after the notice, but also a tim¢ after the outstanding agreement or award expires. Nothizg in the Railway Labor Act, or the scheme of Public Law 88-108, forbids service of a notice more than thirty days before the suggested rules would or could be effective, and nothing relieves the re- cipient from the guty to commence bargaining at that earlier stage. The carriers s#Ak to buttress theyr claim of pro tanto repeal by. implicatt}y by arguing that it can hardly be supposed that Congress intended to permit the unions to ready themselves to strike on January 25, 1966. The only forecast of that day we can find in the legislative history is the assumption that it would be preceded by an agree- 28 MeMullans v. Kansas, O. & G. Ry., 229 F. 2d 50, 56 (10th Cir.), cert. denied, 351 U.S. 918 (1956). 29 See Detroit & T.S.L.R.R. v. Brotherhood of Locomotive Firemen, 357 F. 2d 152, 153 (6th Cir. 1966). % 22 ment of the parties. And that in turn, in our view, assumes ‘. that responsible collective bargaining would have been in train some time prior to the expiration date. If we turn from speculation about legislative intent to the reafities of the Railway Labor Act, we are aware that the confer-, ences triggered by Section 6 notices are typically the beginning and not the end of the statutory procedures. If conferences proposed by a Section 6 notice are unavail- ing, either party can iavoke the services of the National Mediation Boaed. While negotiatfom continue or the Board has jurisdiction, no self-help is permitted. The parties are free to’submit their controversy to. arbitration. If none of these techniques resolves the matter, the President may convene an emergency board to investigate the dispute and report back’ on the issues. Only when all theseg&teps have been exhausted are the parties permitted to act uni- laterally. “For the procedures of. the Act are purposefully long and drawn out, based on thé hope {hat reason and prac- tical considerations will provide in time an agreement that resolves ‘he dispute.” * We do not say that the time of service of notice is com- pletely irrelevant to the duties of the parties. It may be that a notice served the day after the Award would be- token bad faith to the; point of vitiating its validity. We shall have occasion to point out that certain union notices were defective for analogous reasons. But the mere fact that the union notices were served prior to January 25, 1966, did not relieve the carriers of their duty to confer and bargain prior to January 25, 1966. We are not con- sidering a case where the railroads, while conceding that the unions had a right to begin bargaining prior to the expiration date, responded that the particular notice came too early, perhaps on the ground that it did not permit enough experience under the existing rules to spawn real- istic and informed bargaining. In the case before us the earriers flatly refused to engage in any statutory bargain- ing whatever prior to the expiration date. Except in the *° Brotherhood of Railway Clerks v. Florida E.C. Ry., 384 U.S. 238, 246 (1966). See also Farmer, Compulsor4 Arbitration—A Management Law- yer’s View, 51 Va. L. Rev. 396, 401-02 (1965). ngs 25 ease of objectionable union proposals discussed below, the carriers before us must be held to have breached their statutory duty under the Railway Labor /Act to confer and bargain on the merits of proposed changes in work rules. The decree of the District Court embodies a con. trary declaration, and: to that extent it ix reversed. We now consider the effect of our reversal of the Dis- trict Court’s ruling that the notices were not effective to require negotiation until after termination of the Award. As we’ have seen, conferences are but the first step in the chain of Railway Labor, Act procedures. Once they have been frustrated, one side to the dispute can move to the next tier of procedures, and indeed in at least one series of cases involving parties before us the National Mediation Board has accepted jurisdiction of the con- troversy. The carriers have forsaken their right to insist on conferences. by their refusal to respect effective Section 6 notices. The standard for good faith bargaining is quite liberal.-Certainly it does not compel agreement. Judge Bryan, after the most careful analysis, formulated the frequently quoted standard that the— eT requirement of good faith bargaining is really a requirement of absence of bad faith. In order to show such lack of good faith it is necessary to establish facts from which it ean be reasonably inferred that _ a party enters upon a course of bargaining and pur- sues it with the desire or intent not to enter into an agreement at all. American Airlines, Inc. vy. Air Line Pilots Ass'n, 169 F.Supp. 777, 794 (S.D.N.Y. 1958). ‘ - Applying such a test, the carriers have breached their duty to enter negotiations in good faith, for a refusal to bargain on an erroneous premise of law is no excuse.” & 51 See, e.g., Order of Railroad Telegraphers. v. Chicago & Nw, Ry., 362 U.S. 330 (1960). We do not consider attempts to obtain new work rules incompatible with those imposed by the Award or with the report of the Presidential Emergency Board reflective of bad faith on the part of the unions. Compare Pullman Co. v. Order of Railway Conductors, 316 F. 2d 559 (7th Cir.), cert. denied, 375 U.S. 820 (1963). 24 APPENDIX B Extract From The Supplemental Opinion Of The Court Of Appeals For The District of Columbia Circuit, July 31, 1967, In Brotherhood of Railroad Trainmen v. Akron & B. B. R. Go. (385 F. 2d 581, cert. den., 390 U.S, 923). IIL Applicability of Section 8 of the N orris-LaGuardia Act. A. Brotherhood of Railroad Trainmen (BRT) . Appellant Union seeks a ruling that even assuming the District Court had jurisdiction to issue a restraining order, the issuance of the order reflected error in this case. We are clear that the District Court was correct in holding that it had jurisdiction to enjoin a violation. of the ° Railway Labor Act, and that this gurisdiction was not ‘negatived by or subject to Section 4 of the Norris-La (Guardia Act.’ We affirmed that conclusion in No, 20316, and fully adhere to that ruling. Although the District Court had jurisdiction to. issue the restraining Order we think it erred in doing so because— as we subsequently: held in our May 12, 1967 ruling—the complainant carriers had failed to comply with their obli- gations under the Railway Labor Act. Section 8 of the Norris-LaGuardia Act, 29 U.S.C. § 108 (1964), provides that a federal court shall not grant a restraining order or injunction in a labor dispute where the complainant “has failed to comply with any obligation imposed by law which is involved in the labor dispute in question.” The issuance of the restraining order was conditioned on the carriers’ posting a bond to make good damages, not to exceed $10,000, sustained by any party wrongfully restrained. We think the Union, which had to obey the injunction or suffer penalties for contempt of court, is entitled to a ruling from this court that vacates an erro- neous determination of the District Court, although of course we do not purport to describe what if anything the Union is entitled to collect on the bond. The District Court erred.in concluding that because it held, correctly, that the action was not subject to Section 25 ‘ 4 of the Norris-La‘ Guardia Act, which would have ousted the court/of jurisdiction, it necessarily followed that the “elean hands” provision of Section 8 of the Norris-La Guardia’ Act was likewise wholly inapplicable. The Supreme Court has said, speaking through ihe Chief Jus- tice, that “there must be an accommodation” of this Act with the Railway Labor Act Brotherhood of Railroad Train- men v. Chicago R. & Ind. R.R., 353 U.S. 30, 40 (1957). That principle of accommodation means that actions to ‘enjoin violations of the Railway Labor Act may be main- tained without regard to Section 4 of the Norris-La : Guardia Act, and yet be subject to Section 8 of that Act.’ That is the conclusion of other courts which have consid- ered the matter,* and we agree. The point is, simply, that Congress did contemplate actions to effectuate the Rail- way Labor Act by enjoining violations.’ That purpose would be utterly defeated if the federal court’ actions involved were subject to Section 4 of the Norris-La Guardia Act, which had. provisions for withholding. injunction’ in labor disputes reflecting entirely different objectives. * On the other hand a ruligg that Section 8 of the Norris- La Guardia Act is applicable to actions to enjoin viola- tions of the Railway Labor Act would not trammel but would rather further the effectuation of tthat Railway Labor Act, for it ensures compliance by complainant car- rier. or union which cannot seek an injunction until and unless it has discharged the ‘obligations imposed--bhy the Railway Labor Act. It may be that in a particular case the Distriet Court might conclude that the imperatives of the Railway Labor * See Rutland Ry. v. Brotherhood of Locomotive Eng’rs. 307 F. 2421, 37-40 (2d Cir. 1962), cert. denied, 372 U.S. 954 (1963) ; Chicago, Rock I. & Pac. R.R. v. Switehmen’s Union, 292 F. 2d 61, 64-66 (2d Cir. 1961), cert. denied, 370 U.B. 936 (1962); Elgin, J. & E. Ry. v. Brotherhood of Railroad Trainmen,/302 F. 2d 540, 544-45 (7th Cir.), cert. denied, 371 U.S. 823 (1962); Mannifig v. American Airlines, Ine., 221 F. Supp. 301, 304-06 (S.D. N.Y. 1963) ; cf. Brotherhood of Railroad Trainmen v. Toledo P. & W.R.R., 321 U.S. 50, 60-65 (1944); Brotherhood of Railway Clerks v. Florida E. C. Ry., 384 U.S. 238, 247 n.8. (1966); Brotherhood of Railroad Carmen v. Chicago & N.W. Ry., 354 F. 2d 786, 794-96 (8th Cir. 1965). * Virginian Ry. v. System‘Federation No. 40, 300 U.S. 515 (1937). * 26 Act everride Section 8—a statutory focusing so, to speak of an equity approach whereby lack of clean hands may be overcome by a_ balancing of finterests, particularly where it is the public interest involved. In a particular case the District Court might conclude that the question of the applicability of Section 8 was doubtful, would require time to explore, and that the restraining order should issue forthwith to avoid jeopardizing the Railway Labor Act. Such approaches would, recognize, that Section 8 of the Norris-La Guardia Act has some applicability, and is a legislative instruction that weighs heavier-in the seale than the clean hands doctrine taken merely as a general equity maxim, yet is overborne by requirements of the Railway Labor Act. Here, however, the approach of the District Court was that Section: 8 of the Norris- La Guardia Act was completely inapplicable and that was ‘error, In saying that the restraining order was erro- neously entered, however, we do not mean that would excuse a contemptuous violation, We have said enough to demonstrate that the approach used by the District Court was erroneous. As we have decided, the complainants lack clean hands and the defend- ants were not threatening the violation. Therefore, we now rule that the Distriet Court, taking all circumstances into consideration, should permit the Union to reeover on the $10,000 bond if indeed it can establish that it sus _ tained ascertainable damage from the issuance of the re- straining order. : » --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1414%3A2. Public record. Not legal advice.