Appendix — Butcher v. Florida Industrial Commission

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APPENDIX A

Referee’s Decision

Docket No. 69-291-U

FLORIDA INDUSTRIAL COMMISSION

UNEMPLOYMENT COMPENSATION APPRAI, TRIBUNAL

TALLAHASSEE, FLORIDA

Unemployment Compensation Cram

Appeal from Determination of Claims Examiner

In the Matter of:

Socia. Securrry Account .

No. 236-05-4529 (Claimant Appellant)

Employer No. —034850

organization and its membership. The union and its mem-

bership were also represented by two attorneys. The em. -

ployer was represented by his vice president-maintenance,

vice president-Industrial Relations, Director of Security

and by counsel. A Field Auditor attached to the Miami

Unemployment Compensation Tax Office testified ag a wit-

ness for the Florida Industrial Commission.

Issuz Invo.vep: Whether claimants’ total or partial un-

employment is due to a labor dispute in active progress

which exists at.the factory, establishment, or other prem- ~

ises at which he is or was last employed, within the mean-

ing of Section 443.06(4) (a), Florida Statutes, 1967,

History or Case: Claimants fled their initial or their

vdditional claims for unemployment compensation benefits

on and after January 22, 169 ‘Phe Claims Kxannners

made determinations on and after February 3, 160, dis

qualifving claimants for benetits Beeause their unemploy

stnent was due to a labor dispute in active prograss which

existed atthe prentises at which they are or were last em

loved. ‘The claimants were notified of these disqualifying

determinations by mail, dated on or after Mebruaty 3, 1969,

Timely appeals were thereafter filed by all claimants on or

after February 4, 1969,

Mixmxas or Facer: Claimants were employed by em

lover ( OS4800), a certified air carrier of passengers,

cargo and mail as mechanios, inspectors, gas truck drivers,

stook clerks, cleaners and warehousemen, International

Association of Machinist and Aerospace Workers -herein

after referred to as the Union is the duly authorized bar-

gaining agent for all claimants. The terms. and conditions

of their employment is governed by a collective bangain-

ing agreement entered into between the: union and the

employer, The agreement under which they last worked

became’ effective August 26, 1966. It was mutually agreed

that such agreement would continue in force and effect until

December 31, 1968 and would renew its © without- any

change until each suveeeding December 31 thereafter, un:

less written notice of intended changes was served in

accordance with Section 6 ef the Railway Labor Act, as

amended, to either party at least sixty (60) days prior to

the 3ist day ‘of December 1968, or the 31st day of Deeem-

berin any vear thereafter.

_ Prior to June or July 1968, airplanes at Tampa and

Jacksonville were being towed from the jetway to the take-

off point by a vehicle known as a ‘“paymover”’’ which was

operated by a Union member. Subsequent to the afore-

mentioned period all or a part of the tow operation was

performed by members of a different labor. organization.

The Tnion objected to this change and filed a grievance. -

nips

Such grievance was not disposed, but is atill pending dis-

position,

For many years before October 40, 1968, the employer

hat utilizedsthe services of three Union members at a New -

York airport in taxiing aireraff from the hangar to the

lerminal building. On the last mentioned dats, the em-

ployer notified the Union that only two of its. members

would be permitted to. perform work of that type in the

future. ‘Mhe Union promptly made known its disapproval

concerning the change in employment conditions, by means

Of a telegram dated October 31,1968, In this instance ‘the

employer did nothing other than acknowledge receipt of

the wire,

On October 31, 1968, representatives of the employer and.

the Union met for the purpose of exchanging letters con-

faining proposals for change in the existing collective bar-

Kaining agreement. -It was the wish of the Union to obtain.

increased wages, holidays, vacations and sick leave. In

addition a proposal was made that over one hundred

work rules be changed. The employer, on the other hand,

also expressed a desire to change some work rules as well

ax certain_of the existeht working conditions. A second

meeting was held for a period of five days ending Novem-

ber 18, 1968, at which time representatives of labor and

management explained their respective proposals for

change. Prior to the conclusion of that conference it was

agrecéd that.the hard bargaining processes would begin on

- December 9, 1968. The parties thereafter met on the date

that had been specified: Within a matter of minutes after

that meeting began a disagreement arose between the nego-

tiators with respect to the scope provisions of the bargain-

ing agreement, and the Union representative left the bar-

gaining session declaring that negotiations were dead-

locked. On December 12, 1968, the employer filed a petition

to the National Mediation Board for its mediatory services.

It was alleged in that petition that the Union had refused

to engage in collective bargaining with respect to contract

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amerdne negotiations. Althéugh the case was docketed

on December 23, 1968, no mediator has been: appointed,

enn urging on the part of the Union dhat this be done.

At about 8:00 A.M. on January 17, 1969, an employer

supervisor directed two Union members employed at a

New York airport to taxi an aireraft from the hanger to

the terminal building. When these employees voiced an

objection to that assignment, and indicated that they would:

not taxi the aireraft unless there were three men in the

cockpit, the supervisor told them that they were suspended

pending. investigation. Another Union member was theére-

after ordered to taxi the aircraft as a member of a two-

man erew. That individual likewise refused to comply, and

the supervisor promptly subjected him to suspension also.

As soon.as ether Union members, employed at that em-

ployer-operated New York facility became aware that three.

of their fellow members had been suspended for an indefi-

nite period they expressed their displeasure by resorting

to a sit-down strike in which they withheld their services

from the employer in concert. |

At approximately 9:00 A.M. on January. 17, 1969, claim-

ants employed at the employer's main basis of operations in

Miami, received information concerning the events that

had transpired at New York earlier that day including the

aforementioned suspensions and sit-down strike. Immedi-

ately following receipt of that information, those claimants

who were on duty at that particular time did the same as

had been done by the New York Union members in that

they-also staged a sit-down strike and withheld their serv-

ices from the employer in concert. Some claimants who

were schéduled.to work on subsequent shifts, did not report

for duty. Others who did maké an appearance at the:

struek premises either remained in the parking lot or re-

fused to render services upon reporting to their respective —

departments. A number of individuals in the latter cate-

gory were told by the foreman to go home if they were ‘not

going to work, and they went home.

For a period of three days beginning January 17, the

employer met with the Union for the. purpose of having .

claimants and other striking employees return to work.

Such discussions proved to be futile, as the Union made it

clear that its membership would not resume work unless

the three New York members were reinstated without

suspension and this condition was one that the employer

was unwiHing to accept. -

On January 18, 1969, the employer requested, and was

granted a preliminary injunction against the Union by the

Kederal District Court in whieh the Union, and any per-

sons acting in concert with the Union were enjoined from

striking; the Court also ordered that the Union ‘forthwith

restore the status quo, The employer was directed to use: ~

a three-man cfew to taxi. aircraft, pending a hearing and

determination by the Court on the matter. A further hear-

ing was held with respect to the injunction order on Jan-

uary 20. In that instance, the Federal Judge ordered that

the union direct its members to return to work by their

next shift, and that individuals who refused to report

would be subject to penalties, including dismissal by the

employer. The union thereafter sent telegrams to mem-

bers Gn January 20, in which they were advised to return

to work for the employer. At approximately 7:30 p.m. on -

January 20, the employer sent telegrams to claimants and

other striking employees which stated, in essence, that if

they did not report for work on their next regularly sched-

uled shift commencing.after 1:00 p.m. on January 21, their

employment with the employer would be terminated, and

their rights and privileges as employees would be for-

feited. About 50 to 60 of the 1,000 employees who had

struck. against the-employer on and after January 17, re-

turned to their respective jobs in compliance with the Court

order and the telegrams received from labor and manage-

ment. None of the claimants saw fit to resume work for

the employer because, among other things, three of their

fellow union members in New York were still under suspen-

ipowmemens pe ee eae OMCs rere er ter ee

sion. On January 22, those employees who continued to

withhold their services were denied access to the employer’s

business premises. At a later date, all employees who

ignored the employer’s ultimatum to report for duty or be

terminated, were mailed routine personnel action forms

showing that they had been terminated. Neither the claim-

ants nor the union accepted the notices of termination as

being final, nor did they consider that the employer-

employee relationship had been severed.

On January 27, the union filed a motion in the Federal

District Court for clarification and modification of the pre-

liminary injunction, asking that the union be permitted to

engage in peaceful picketing, and also requesting that the

employer be required to rescind his termination notices.

When the Court denied that motion, the union promptly

filed an appeal to the 5th District Court of Appeals at New

Orleans, Louisiana. Such appeal has not been disposed,

but is pending disposition.

The union and its membership thereafter established

picket lines outside of the premises at which claimants last

worked, and elsewhere at various points served by the em-

ployer. Claimants, in each of the three classes of workers

involved herein, have performed picket duty and have ren-

dered other services at the union hall, and at other locations

which served to strengthen their position in their dispute

with the employer. Individuals who participated in the.

dispute to this extent have been paid benefits in the amount

of $25 weekly since February 11, 1969. The union has

chosen to refer to such payments as ‘‘lockout benefits.’

The monies used for the payment of lockout benefits are

drawn from Grand Lodge funds by the Union Executive

Council. The authority for so doing is found in Article V

Section 4 of the Union Constitution which is headed F1-

NANCING Strikes. Section 4 provides: The E C may draw

npon G L funds to finance any strike or lockout.

It is the intent and desire of claimants to resume work

for the employer if and when the dispute in which they

are now engaged is settled (on terms that are satisfactory

to them). Although each received notice of termination,

the employer has never ceased his efforts to prevail upon

them to return to their jobs. The employer has been able

to recruit some workers to fill positions vacated by claim-

ants; however, none of these newly hired employees have

received any assurance from the employer that their serv-

‘ices will be utilized on a permanent basis. Since January

17, employment has been, and is now, available for claim-

ants who wish to return to work for the employer. Claim-

ants who did not comply with the employer demand that

they report for duty, and who were allegedly terminated,

have not been required to forfeit their major rights and

privileges as employees of the employer. In that regards,

the employer has publicly announced that if they returned

they would be reemployed at the previously existing rate of

pay and that all pension rights accumulated would be pre-

served; with respect to other rights (such as extended vaca-

tions) they would come in as new employees. As of Febru-

ary 28, approximately two hundred employees had re-

turned to work.

Claimants are unemployed due to a labor dispute in

active progress which exists at the premises at which they

are-or were last employed, within the meaning and pur-

oses of the Florida Unemployment Compensation Law.

Each is subject to disqualification for the period beginning

January 17, 1969, and until such time that it is shown to

the satisfaction of the Commission that their labor dispute

with the employer has ceased to exist.

Reasons For Decision: Section 443.06(4), Florida Stat-

utes, 1967, provides that an individual shall be disqualified

for benefits for any week with respect to which the Com-

mission finds that his total or partial unemployment is

due to a labor dispute in active progress which exists at

the factory establishment or other premises at which he is

or was last employed provided that this subsection shall

Ie LTTE RE ERT ITEC ne ee ap oe seen oe ox. Sait

not apply if it is-shown to the satisfaction of the Commis

sion that:

(a) He is not participating in or financing or direetly

interested in the labor dispute whieh is in’ active

progress provided; however, that the payment of

regular Union dues shall not be constried as finane-

ing a labor dispute within the meaning of this see

tion and

(b) THe does not belong to a grade or class of workers of

which immediately before the commencement of the

. labor dispute there were members employed at the

premises at which the labor dispute occurs any of

whom are participating in, or finaneing, or directly

interested in the dispute; previded, that if in any

ease separate branches of work which are commonly

conducted as separate businesses in separate prem-

ises, or are conducted in separate departments of

the same premises, each department shall, for the

purpose of this subsection be deemed to be a separate

factory, establishment or other premises.

The language contained in the subsection of the Law

quoted above makes it clear that an individual shall be

disqualitied for benefits if the Commission finds that three

conjunctive conditions exist (1) There is in existence a

labor dispute (2) The individual's total or partial unem-

ployment is due to that labor dispute and (3) The labor

dispute is in active progress at the premises at which the

individual is or was last employed.

The conditions disqualifying a worker for benefits are

exceptions to the Law. Exceptions from _ legislation,

humanitarian and remedial in nature, must be narrowly

construed giving due regard to the plain meaning of Stat-

utory language and legislative intent. Unfortunately the

legislature in this State did not define the term ‘‘labor

dispute’’. There is, however, contained in our Law a pro-

vision which gives us some indication of its meaning.

This is found in Section 443.06(2)(b) which provides:

Notwithstanding any other provision of this chapter, no

work shall be deemed suitable and benefits shall not be

denied under this chapter to any otherwise eligible in-

dividual for refusing to aecept new work under any of

the following conditions: 1. Tf the position offered is

vacant due toa strike, lockout, or other labor dispute.

Section 185-101 (3) of the Florida Unemployment Com-

pensation Code of Regulations, which pertains to the eon-

struction to be given Chapter 4438, Florida Statutes, recog-

nizes that certain terms used in that chapter might not be

defined. This section of the Regulations states in that

regard, ‘** * * in that event the same shall have their

ordinary and generally accepted meaning unles’ the con-

text clearly indicates otherwise, and exeept where same

may be otherwise defined ina manner not inconsistent with

or repugnant to the provisions of the Florida Unemploy-

ment Compensation Law.

Prior to the enactment of our Unemployment Compensa-

lion Law, the term “labor dispute’? had been defined in two

acts of the United States Congress. In one act relating to

procedure for obtaining injunctions, Kene ‘rally known as

the Norris La Guardia Act, and enacted in 1932, U.S.C.A.

Title 20, subsection “OC” of Section 113, the term is “— fined

as follows:

“The term ‘labor dispute’ includes any controversy

concerning terms or conditions of employment, or con-

cerning the association or representation of persons

in negotiating, fixing, maintaining, changing, or seek-

ing to arrange terms or conditions of employment, re-

gardless of whether or not the disputants stand in the

proximate relation of employer and employee.’

In the National Labor Relations Act, U.S.C.A. Title 29,

subsection 9 of section 152, enacted in 1935, the following

definition is found:

‘‘The term ‘labor dispute’ includes any controversy

concerning terms, tenure or conditions of employment,

or concerning the association or representation of per-

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sons in negotiating, ning, maintaining, eh ing, or

sooking fo arrange forma or conditions of employment,

regardless of whether the disputants stand in the proxi

mate relation of employer and employee,”

We are not bound by the definition of a labor dispute

contained in the Federal Statutes, but these definitions are

af loast pérsuasive of what should be the definition of such

a dispute. ‘They are net out of line with the generalGuid

commen aeceptation of the meaning of the term, and there

is ne substantial reason fo eonelnde that our legislature

had in mind a dierent meaning fo be attached thereto.

Acoordingly, there would) seem to be ne impropriety in

adopting and apply yur these definitions to the ease at hand.

The reeord and evidenee of the instant ease clearly show

that during a six fo seven month period preceeding January

17, 1969, a number of controversies had arisen between the

omplover and the Union of which claimants are members

eoneerning terms and conditions of employment whieh had

not been settled to their mutual satisfaetion. Sueh eon

troversies included a deadlock that developed with respect

to proposed Shanges in the’bargaining agreement and the

omplover’s failure to utilize the services of Union mem-

bers to the same extent as had been done previously in

connection with towing and taxyving aireraft, As a result

of these labor-management disagreements the fuse was lit

for what transpired on the morning of January 17. At

that time, the employer suspended three Union members

for an indefinite period pending investigation, beeause

they had refused to taxi an aireraft aga member of a two-

man crew upon being directed to do so by their supervisor.

Immeately thereafter other Union members at the New

York facility sat down and refused to work in protest of

the suspensions. Approximately one hour later, claimants

and their fellow Union members who worked at Miami

were notified about the events that had occurred in New

York. and it was their decision to withhold their services

until the employer reinstated the suspended employees.

eaeeete

Since this type of situation clearly constituted a contro-

lin

versy concerning terms and conditions of employment, it

follows that a labor dispute commenced in active progress

at the promises at which claimants were employed. All

Claimants became unemployed at the time they elected: to

remain idle, rather than work. Accordingly, each became

unempleyed due fo the labor dispute. No evidence has

heen presented in this case to show thet any of the claim-

ants should be relieved of the labor dispute disqualification.

His apparent that none can meet the exceptions provided

by Laws All claimants participated in the labor dispute

by withhoyling their services from the employer in concert

and refusing to work ata time when work was available

for them; many, if not all, have further evidenced partici-

pation in the dispute by performing picket duty and related

services designed to strengthen their position against the

‘employer; each has a direct interest in the outeome of the

dispute; all belong to a grade or class of workers of which

immediately before the commencement of the dispute there

were members employed at the premises at which the labor

dispute occurred who have and are participating in the

labor dispute and who are directly interested in the dispute.

A labor dispute that affects general conditions of employ-

ment causes all employees concerned to be “direetly inter-

ested??.in the labor dispute.

The hearing testimony reveals that the labor dispute has

heen in active progress for the period beginning January

17, 1969, to the present time, because the labor dispute was

never Vinally settled, terminated, or completely abandoned.

Consideration has -been given to the conte.tion that

claimants are unemployed because they were discharged by

the employer, or that their unemployment is due to a lock-

out. In regards to these allegations, a lockout must in

fact be classified as a labor dispute inasmuch as the Florida

Statutes associates strikes and lockouts with labor disputes.

As has been mentioned previously, any controversy over

conditions of employment constitutes a labor dispute, and

strikes and lockouts are tactics employed by the Union

and the employer respectively in order to resolve the dis-

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pute in their favor, The testimony will not support a find

ing that the omployer completely severed the employer:

omployee relationship with claimants upon advising them

they had been terminated. Hf it was the intention of the

employer to: permanently dispense with their services, he

would not have continued his unceasing efforts to have

them return, nor would he agree to pay them their previous

stlary and preserve their pension rights as a further in

ducoment.for them fo return to his employ. Essuing letters

of discharge and termination notices to striking employees

isa tactic that is’ frequently resorted to by a struck ene

ployer as a show of strength, Tis, however, meaningless

unless the employer has permanently replaced the striking

workers and in so doing, removed from them the element

of choieve or volition as tea whether they could have re

turned to work. Claimants obviausly do not consider that

they have been discharged as they plan to resume work

for the employer when the labor dispute is settled to their

satisfaction,

— In the light of the considerations set) forth above, it

should be held thatthe claimants are unemployed due toa

labor dispute in active progress whieh exists at the prem

ises at which they are or were last employed, and they are

properly subject to disqualification for the duration of sueh

dispute.

Pretsion: The determination of the Claims Examiner

disqualifying claimants for benefits for the period be-

ginning January 17, 1969, and for the duration of the labor

dispute which is in active progress at the premises at which

they are or were last employed, is hereby affirmed.

The isues involved in. this decision were resolved and

devided by this Referee while sitting in his office at Miami,

Florida, this 6th day of March 1969, A.D.

Tromas J. DowpdE., Jr.

Thomas J. Dowdell, Jr.

Senior Appeals Referee

Date Mailed to Parties: March 7, 1969

any _

. APPENDIX B

FIOKIDA INDUMTRIAL, COM MIBKION

UNEMPLOYMENT COMPENHKATION BOARD OF REVIEW

TALLATABHE, HiAIDA 32504 |

Board of Review Decisidn No. *

Re: Referees se Docket No, *

In the Matter of;

Sociun Secounrry Account No, *

Claimant Appellant

Mimployer No. 034850

Decision

The Board of Review denies the application of appellant

for leave to appeal from the decision of the Appeals

Referee shown above.

eee:

The denial of this appjication makes the decision of the

Appeals Referee the decision of the Board of Review.

Fiorina UxnemetovmMest Compensation

Boanp or Review

T. W. Jounston

T. W. Johnston, Chairman

; Water L. Licutsty

Walter L. Lightsey, Member

Frank M. Netson, Jr.

Frank M. Nelson, Jr., Member

Date Mailed to the :

Parties: April 18, 1969

* See Attached List [list omitted]

- (Form Fla. Br-6)

léa

APPENDIX C

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING PETITION

AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

January Term, A.D. 1970 .

Case No. 69-418

Frank Burtcuer, et al., Petitioners,

Fioripa InpustriaL Commission and NationaL AIRLINES,

Inc., Respondents.

Opinion filed January 27, 1970.

An Appeal from the Florida Industrial Commission.

‘Manners & Amoon; Richard M. Gale; Plato E. Papps,

for petitioners.

James R. Parks; W. W. Stalvey; Jerry B. Crockett, for

respondents.

Before CuHar.es CarroLt, BakKDULL and HEnpkry, JJ.

Per Curiam.

By petition for certiorari we are asked to review a deci-

sion of the Florida Industrial Commission, Employment

Compensation Board of Review, upholding a ruling of an

appeals referee which in turn approved a ruling of a claims

examiner, holding that the claimants were disqualified to

receive unemployment compensation under the Florida Em-

ployment Compensation Act on the ground that their un-

employment was due to a labor dispute in active progress.

The petition for certiorari recited the following facts:

‘‘(a) These three hundred seven (307) petitioners

filed their claims for unemployment compensation

benefits on and after January 22, 1969. All petition-

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ers were employed as mechanics, gas truck drivers,

inspectors, cleaners, stock clerks or warehousemen by

National Airlines, Inc., a certified air carrier of .pas-

sengers, cargo, and mail.

‘*(b) The claims examiner made Jeterminations dis-

qualifying the petitioners for benefits on the ground .

that their unemployment was due to a labor dispute in

active progress which existed at the employer’s prem-

ises. Notification of disqualification for unemploy-

ment compensation benefits was given to petitioners on

or after February 3, 1969.

‘‘(c) Timely appeals were thereafter filed by peti-

tioners on or after February 4, 1969. A consolidated

hearing was held before the appeals referee.

‘‘(d) The issue involved as found by the appeals

¥eferee was whether claimants’ total or partial un-:

employment is due t6 a labor dispute in active prog-

ress which exists at the factory, establishment, or other

premises at which claimants are or were last employed

within the meaning of Section 443.06 (4)(a), Florida

Statutes.

‘*(e) The appeals referee made the following find-

ings of fact: (some findings will be challenged by peti-

tioners in their brief as not being supported by com-

petent, substantial evidence). On January 17, 1969,

the petitioners employed at the employer plant in

Miami received information that three fellow union

members employed in a New York airport by the em-

ployer had been suspended for refusing to taxi an air-

craft with only two men in the cockpit. It was further

found that the petitioners on duty at the time of re-

ceiving this information staged a sit down strike.

‘‘(f) It was further found the employer filed pro-

ceedings in a Federal District Court and was granted

a preliminary injunction enjoining the petitioners,

l6a

their union and any perkon acting it concert with the

union from striking and the Federal court also ordered

that the union restore the status quo. (This prelimi-

nary injunction has been appealed and no decision has

been ‘rendered to date).

‘*(¢) It was further found that the Federal judge .

ordered the union to direct its members to return to

work on the regulir shift on January 20, 1969, and —

that the union thereafter sent telegrams fo its members

omManuary 20, 1969, in which they were, advised to

return to work for the employer.

*“(h) On the same day, January 20, 1969, the em-

ployer sent telegrams to the petitioners to the effect

that if they did not report to work their employment

would be terminated. On January 22, 1969, petitioners’

employment was terminated by the unilateral action of

the employer. °

**(i) The appeals referee also found that ‘the em-

ployer has never ceased his efforts to prevail upon

them [petitioners] to return to their job.”

‘*¢j) The appeals referee held that petitioners were

unemployed due to a labor dispute in active progress

which existed, at. the premises at which they are or |

were last employed, within the meaning: and. purposes

of the Florida Uneniployment Compensation Law. He

also held: ‘Each [petitioner] is sabject to disqualifi-

cation for the period beginning January 17, 1969, and

> until such time that it is shown to the satisfaction of

the Commission that the labor dispute with the em-

ployer has ceased to exist.’ |

‘‘(k) An application for leave to appeal to the

Board of Review was timely filed on behalf of all the

petitioners. The Board of Review denied the applica-

tion of petitioners for leave to appeal from the deci-

sion of the appeals referee. The Board adopted the

17a

appeals referee’s decision as the decision of the Board

of Review.”’

Regarding the foregoing, the petition alleged that the

findings of fact ond conclusions of law and decision of the

- Board of Review were not supported by competent substan-

tial evidence, and that the denial of employment compensa-

lion to petitioners unlawfully penalized them for pursuing »

legal rights accorded them under the Railway Labor Act.

Section 443.06(4), Fla, Stat., F.S.A., provides that one

is disqualified for unemployment compensation benefits

when the commission finds his total or partial unemploy-

ment is ‘due to a labor dispute in active progress which

exists at the factory, establishment or other premises at we “

which he is or was last employed ;”? (with certain exclusion“

ary provisos which do not appear to be applicable here).

Petitioners argue that because ‘they were discharge <d by

their employer (for refusal to return to work as direeted-

by a federal court order, within a time specified by the

employer) the holding that they were unemployed due to

a labor dispute was incorrect, and that-the employer’s

termination of their employment (as of January 22, 1969)

placed them in a status entitling them to unemployment

compensation, Petitionérs further argue that the commis-

> sion’s order ‘‘violated the supremacy elause, claimants’

federal constitutional rights under the fifth and fourteenth

amendments and the federal labor policy under the Railway

Labor Act:’’ — 3

We reject, as without merit, petitioners’ contention that

‘the challenged order was not supported by competent sub-

stantial evidence. The petitioners abstained from work in

violation or breach of an existing collective bargaining

contract made by or on their behalf with the employer,

in a strike found by the federal court to be unlawful

(and from which they were, in effect, enjoined to desist).

That such was due to a labor dispute was established by

a showing that it represented a concerted refusal to work,

ROMA AACR URE 1 ae OAD AFAR Ot ad

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picketing and the invocation of strike benefits, because of

action taken by the employer with respect to certain em-

ployees who had refused to comply with a work direction

of the employer, the propriety of which they questioned.

The fact that the petitioners, while unemployed due_ to

an existing labor dispute, were discharged by their em-

ployer for failure to resume work as directed by court

order, would not operate to entitle them to unemployment

compensation. See § 443.06(1).

The employer invited the petitioners who had been dis-

charged to return to work, subject to temporary, though

not necessarily permanent, loss of seniority and certain

other benefits. Through procedures offered under the Rail-

way Labor Act, the petitioners sought to establish the

right to return to work with no Joss of seniority or bene-

fits. They argue that to deprive them of unemployment

compensation, while so proceeding, violates their constitu-

tional rights and unlawfully prejudices them for pursuing

rights under the federal act. We find those contentions

to be unsound because the evidence was sufficient to show,

as found by the commission, that their continued absence

from work was and remained due to the continuing labor

dispute. y

No reversible error having been shown, certiorari is

denied and the petition is dismissed.

It is so ordered.

19a

APPENDIX D

IN THE

DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1970

WEDNESDAY, FEBRUARY 18, 1970

Case No. 69-418

FraNK Butcuer, et Au., Petitioners,

FLorwa InpusrriaL Commission and Nationat AIRLINEs,

Inc., Respondents.

Counsel for petitioners having filed in this cause peti-

tion for rehearing, and same having been considered by

the court which determined the cause, it is ordered that

said petition be and it is hereby denied.

A True Copy

ATTEST :

WriiuiaM P. Carter

Clerk District Court of Appeal, Third District

ee: Ricuarp M. GaLe

James R, Parks

Jerry B. Crockett

Manners & Amoon

Piato E. Papps

W. W. Srazvey

(THE FINAL ORDER IN THE ABOVE STYLED CAUSE HAS TODAY

BEEN ISSUED AND MAILED TO THE FLORIDA INDUSTRIAL

COMM. UNEMPLOYMENT COMPENSATION BOARD

OF REVIEW

as i li ee ao BPP LT APS

Ree ee

FR Phe

OLS, CM ONES IO, NOTA RG oe eRe ACRE sx

20a

APPENDIX E

IN THE

SUPREME COURT OF FLARIDA

JANUARY TERM, A. D. 1970

TUESDAY, MAY 6, 1970

Case No. 39,513

District Court or ApvreaL, Turrp District

Frank Butcuenr, er au., l’etitioners,

Fvoripa IxpusrriaL Commission and NationaL AIRLINEs,

Inc., Respondents.

This cause having heretofore been submitted to the

Court on Petition for Writ of Certiorari, jurisdictional

briefs and portions of the record deemed necessary to re-

flect jurisdiction under Florida Appellate Rule 4.5e(6), and

it appearing to the Court that it is without jurisdiction,

it is ordered that the Petition for Writ of Certiorari be

-and the same is hereby denied.

ec: Hon. W. P. Carter, Clerk

Hon. T. W. Johnston, Chairman

Hon. Richard M. Gale

Hon. Plato E. Papps

Hon. Bernard Dunau

Messrs. Manners and Amoon

Hon. Jerry B. Crockett

Hon. J. Franklin Garner

Hon. Patrick H. Mears

Hon. T. W. Johnston, Chairman

A True Copy

Test:

Sm J. Wuite

Clerk Supreme Court.

2la

APPENDIX F

IN THE

SUPREME COURT OF FLORIDA

JANUARY TERM A. D. 1970

TUESDAY, JUNE 30, a. vb. 1970

Frank ButcHer, ET AL, Petitioners,

—V.

Fioripa INpustriaL. Commission, ET aL, Respondents

On consideration of the Petition for Rehearing filed by

Attorneys for Petitioners,

Ir Is Orperep by the Court that said petition be, and the

same is hereby, denied.

A True Copy,

Test:

Sip J. WHITE :

Clerk Supreme Court

(I HAVE TODAY MAILED TO THE CLERK OF THE DISTRICT COURT

OF APPEAL, THIRD DISTRICT, ORDER OF MAY 26, A.D. 1970,

IN THE ABOVE CAUSE)

MEDSTSPSTS PONIES Pein siney es rN

ine

22a ~

APPENDIX G

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 27312

National Arruines,> INcorroratep, Plaintiff-Appellee,

Vv.

INTERNATIONAL AssociatTiON OF MacHINists AND AEROSPACE

Workers, Et AL, Defendants-Appellants.

‘Appeal from the United States District Court for the

Southern District of Florida

(September-3,] 1969)

Before Bet. and THornperry, Circuit Judges, and Cuoare,

District Judge.

Trornperry, Circuit Judge: This case concerns the

status quo or ‘‘freeze”’ provisions of the Railway Labor

Act applicable to major disputes. It arises out of a wild-

eat strike by the earrier’s emplo¥ees while the orderly

processes provided by the Act were running their course.

The question is whether the carrier, under the unusual

circumstances of this case, violated the status quo by dis-°

charging strikers who refused to ,return to work under

court order. The district court held that it did not, and,

accordingly, that the employees were not entitled to rein-

statement. We REVERSE and REMAND.

On October 31, 1968, National Airlines and the Inter-

national Association of Machinists and Aerospace Workers,

AFL-CIO (Union) exchanged § 6 notices of desired changes

in their collective bargaining agreement. The parties

thereby invoked the elaborate procedures set forth by the

Railway Labor Act for the resolution of major disputes,

which the Supreme Court has recently outlined as follows:

... A party desiring to effect a chang¢ of rates of

pay, rules, or working conditions m give advance

23a

written notice. §6. The parties must confer, § 2 Sec-

ond, and if conference fails to resolve the dispute,

either or both may invoke the services of the National

Mediation Board, which may also proffer its services

sua sponte-if it finds a labor emergency to exist. §5

First. If mediation fails, the Board must endeavor

to induce the parties to submit the controversy to

binding arbitration, which can take place, however,

only if both consent. §§5 First, 7. If arbitration is

rejected and the dispute threatens ‘‘substantially to

interrupt interstate commerce to a degree such as to

deprive any section of the country of essential trans-

portation service, the Médiation Board shall notify the

President,’? who may create an emergency board to

investigate and report on the dispute. §10. While

the dispute is working its way through these states,

neither party may unilaterally alter the status quo.

§§ 2 Seventh, 5 First, 6, 10 (Emphasis added)

Brotherhood of Railroad Traimmen vy. Jacksonville Ter-

minal Co., 1969, 89 S.Ct. 1109, 1115. Conferences between

the parties failed to resolve the dispute over the suggested

changes, and several matters were referred to the National

Mediation Board in December, 1968. All events giving rise

to this suit occurred after the procedures of the Act had

been set in motion, but before their completion.

Against this background, National suspended three men

on Friday, January 17, 1969, at Kennedy Airport for re-

fusing to taxi an aircraft. The action of the men in ques-

tion was in response to a controversial order issued by

the carrier reducing the number of men needed to taxi

an aircraft from three to two. The men apparently deter-

mined that the reduction created an unsafe condition. Al-

most immediately after the suspension, members of the

Union sat down on the job at National’s Kennedy Airport

and Miami International facilities.

Later that same afternoon, National filed a suit in the

court below seeking injunctive relief against the Union

TOO LRM IMT” OPT

siabers Pen ‘Meslictian:

ny Ce ee a i ee eae

24a

alleging that the Union had violated the status quo re-

quirements of the Aet and had breached the collective bar-

gaining contract by participating in a strike er sit down.

At an emergency hearing the next morning, January 18, .

1969, a representative of the Union testified that the strike

Was an ‘unauthorized work stoppage ora sit down.’’? The

attorney for the Union stated that ‘*we are having a dif-

ficult time getting them [the strikers] baek,’’ and coneeded

that a preliminary: injunetion enjoining the strike was ap-

propriate. The court: entered a) preliminary injunetion

ordering the Union to restore the sfatus quo by ending the

work stoppage. In addition, the Union sought and ob-

tained a temporary restraining order requiring National

to employ three Men to taxi aireraft.'

Although National complied with the court’s order on

the taxi dispute, the Union's attempts to return the men to

work were unsuecessful, and the strike continued. On

January 20, the fourth day of the strike, the airline sched-

uled a seeond hearing before the distriet court, seeking

further’ relief to compel compliance with the injunetion.

As a result of the strike, the airline had already cancelled

approximately 36 flights. Representatives of the Union

asserted that the’ employees disregarded the Union's or-

ders to return to work and tlfat the Union had lost econ-

trol of its members. The first injunetion issued by the

eourt had proved ineffective. Accordingly, the district

court entered a second order at 12:30 P.M. on the same

day, ordering the defendants to ‘‘advise the membership

that it is the order of the Court and of the defendant TAM

that all men return to work by their next shift, and that

1 Since the filing of this appeal, the district court has sustained

the Union's position on the taxi dispute, holding that National vio-

lated the status quo by changing the number of men required to

taxi an aircraft after the procedures of the Act were set in motion

by the $6 notices on October 31, 1968. The court changed the

temporary restraining order into a preliminary injunction directing

National to taxi with at least three men until the procedures of

the Act are exhausted. |

25a

individuals who reruse to so report are subject to penal-

ties which could include dismissal by NATIONAL AIR-

LINES.’’ (Kmphasis added). At 3:41 P.M. that after-

noon, the Union sent out 993 telegrams advising its mem-

bers of the court’s second order. Shortly. thereafter, at -

approximately 7:00 P.M. that evening, National notified

the strikers that they would be terminated if they did not

report for duty at their next regularly scheduled shifts

starting at 3:30 P.M. the next day, January 21.

When the strikers did not return to work the next day

at. the 3:30 P.M. shift, National sent termination notices

to approximately 940 LAMAW workers. The Union prompt-

ly filed a motion to dissolve the orders enjoining and re-

straining the strike and, in addition, an ‘‘ Application for

Rule to Show Cause and Preliminary Injunction,’’ seeking

to require the reinstatement of all discharged employees.

The district court denied the motion and application, and

the Union appeals.

The Union’s position is that the discharge of the strik-

ing employees violated the status quo or ‘‘freeze’’ pro-

visions of the Railway Labor Act, and that the discharged

employees are therefore entitled to reinstatement. The

applicable provision of the Railway Labor Act is Section

6, 45 U.S.C. § 156, which provides in relevant part:

In every case where such notice of intended change

has been given, or conferences are being held with

reference thereto, or the services of the Mediation

Board have been requested by either party ... rates

of pay, rules, or working conditions shall not be al-.

tered by the carrier until the controversy has been

finally acted upon, as required by section 155 of this

title. ... [Emphasis added].

‘‘The purpose of §6 was to prevent rocking of the boat

by either side until the procedures of the Railway Labor

Act were exhausted.’’ Manning v. American Airlines, Inc.,

2d Cir. 1964, 329 F.2d 32, 35. ‘‘[T]he legislative history

ae diversion pea aes

Re BOS RG EMEA LE A PUNE TI MN Rs OER

eee aan

nfierteens

Rs Se Ow, s

CL ht OO NTO ATONE! (A LED ne ae AO

26a

of the statute shows the ‘freeze’ provisions were intended

to enforce a ‘cooling off’ period upon both — and

management. ....’?) Rutland Railway Corp. v. Brother-

hood of Locomotive Engineers, 2d Cir. 1962, 307 I.2d 21,

45, n. 11 (dissenting opinion). Consequently, where a

dispute is working its way through the processes provided

by the Act, ‘neither party may unilaterally alter the

status quo,’’ Brotherhood of Ratlroad Trainmen v. Jack-

sonville Terminal Co., 1969, 89 S.Ct. 1109, 1115; and ‘‘no

self-help is permitted.’’ Brotherhood of Railroad Train-

men Vv. Akron & B.B.R. Co., D.C. Cir. 1967, 3885 F.2d 581,

097. ‘*[T]he parties may not ... have resort to either

the strike or the lockout before the procedures provided

by the Act have been exhausted and a strike or lockout

during that period is ey and forbidden by the Act.’’

American Airlines, Inc. v. Air Line Pilots Ass’n, S.D.N.Y.

1958, 169 F.Supp. 177, 789,

National argues that the status quo provisions of the

Act. are inapposite here beeause the change in the taxi

crews constitutes only a ‘‘minor’’ dispute.? National

points-out that the men struck over the suspension of the

three employees in New York who were suspended be-

cause they disputed the work change in the taxi crews at

JFK by refusing an assignment to taxi an aireraft. In-

asmuch as this minor dispute ultimately led. to the dis-

charge of the strikers, the argument continues, the status

quo provisions of the Act, applicable only to major dis-

putes, cannot be invoked to compel reinstatement. But it

is undisputed that the ‘‘major dispute’’ procedures of the

Act were brought into play by the exchange of § 6 notices

on October 31, 1968 and that those procedures had not

been exhausted on January 21, 1969 when the strikers

were discharged. Consequently, the discharge occurred

2 See Elgin, Joilet and Eastern R. Co. v. Burley, 1945, 325 U.S.

711, 722-24, 65 S.Ct. 1282, 1289-90, 89 L.Ed. 1886; Missouri-Illinois

R. Co. v. Order of Railway Conductors, 8th Cir. 1963, 322 F.2d

793, 795 on the distinction between major and minor disputes.

27a

during a ‘‘freeze’’ period when self-help is ordinarily un-

lawful. This would be true even if (and we need not

decide the issue) the change in the taxi crews constituted

a minor dispute. Plainly a carrier may not, under the

guise of resolving a minor dispute, circumvent and de-

feat the statutory proscription on self-help while a ma-

jor dispute is running its course. Cf. Brotherhood of Rail-

way and Steamship Clerks v. Florida East Coast Ry. Co.,

1966, 384 U.S. 238, 247, 86 S.Ct. 1420, 1425, 16 L.Ed.2d

501. The statutory ban on self-help is apposite: The ques-

tion is whether this change violated the status quo.

The Union maintains that the discharge of the strik-

ing employees constitutes a permanent change in the status

quo, thereby truncating the purpose of the Railway Labor

Act. It argues that the district court abused its discre-

tion and departed from its limited role as guardian of

the status quo by including a provision in the January

20 order that strikers who refused to return to work ‘‘are

subject to penalties which could include dismissal by NA-

TIONAL AIRLINES.’’? The Union stresses the impro-

pricty and inflammatory effect of National’s January 20

notice to the strikers that they would be discharged if they

failed to return to work the next day. It emphasizes that

the Union, not the carrier, was ordered to notify the

strikers of the court’s order. This ‘‘anticipatory dis-

charge”’ or ‘‘constructive lockout’? was thus a breach of

National’s obligation under the Act. Moreover, the Union

further argues, the exercise of self-help by the strikers

did not automatically create a right of self-help for the

carrier. When the employees failed to return to work on

January 21 under the second order of the court, the car-

rier was not thereby relieved of its obligation to maintain

the status quo. Instead of resorting to self-help by ter-

minating the strikers, National should have sought further

aid from the district court. Consequently, the discharged

strikers are entitled to reinstatement.

Weighing against the Union’s claim, however, is the

undisputed illegality of the strike. A strike called before

A aa Pee ae

28a

completion of the major dispute procedures, like a change

made by the carrier, is unlawful and may be enjoined

pending compliance with the Act. Missouri-Illinois R. Co.

v. Order of Ry. Conductors, 8 Cir. 1963, 322 F.2d 793, 796;

American Airlines, Inc. v. Airlines Pilots Ass’n, S.D.N.Y.

1958, 169 F. Supp. 777, 787. It seems established that ‘‘the

Union may strike only if it has complied with the Act.’’

United Industrial Workers of the Seafarers Int’l Union

of North America v. Board of Trustees of Galveston

Wharves, 5th Cir. 1968, 400 F.2d 320, 334; see Comment,

Enjoining Strikes and Maintaining the Status Quo in Rail-

way Labor Disputes, 60 COLUM. L. REV. 381, 388, 390.3

The Union here has consistently maintained that the strike

was unlawful, and with the exception of its objection to the

language pertaining to discharge contained in the second

order issued by the court, concedes the propriety of in-

3 The status quo provisions of the Railway Labor Act refer to the

‘representatives of the employees,’’ §6, or the ‘‘parties to the

controversy,’” § 10, so that it is conceivable that only Union-

sponsored strikes violate the Act. Such a literal analysis has

not been applied, however, in construing other aspects of the

Railway Labor Act, see, e.g., Brotherhood of Railroad Trainmen

v. Chicago River and Indiana R. Co., 1957, 353 U.S. 30, 77 S.Ct.

635, 1 L.Ed.2d 618, and it would hardly serve the purpose of

the Act to hold that wildeat strikes, such as the strike in-

volved here, did not come within the statutory ban on self-

help. Moreover, it should be noted that §2 of the Act provides

that ‘‘it shall be the duty of . . . employees to exert every reason-

able effort to make and maintain agreements. . . and to settle all

disputes . . . in order to avoid any interruption to commerce or to

the operation of any carrier... .”’

In this connection, consider: ‘‘On February 17, 1961 the flight

engineers who were employed by Western Air Lines failed to show

up for work. The Union says there was no Union sponsored

strike. If there was no strike, the court is compelled to the

conclusion that the flight engineers individually each of them

simply quit their jobs.’’ Flight Engineers v. Western Air Lines,

S.D. Cal., April 14, 1961, 48 LRRM 2487; see also Wes Chapter,

Flight Engineers’ Int’l Ass’n v. National Mediation Board, D.C.

Cir. 1962, 314 F.2d 234, 237.

29a

junctive relief to end the strike.* National takes the posi-

tion that an employer may, without more, lawfully discharge

employees engaged in an unlawful or a wildeat strike and

that the strikers therefore are not entitled to reinstatement.

This position finds substantial support in decisions entered

in analogous situations under the National Labor Rela-

tions Act. It is generally held that, under the NLRA,

an employer may lawfully discharge employees who en-

4 We take the case as we find it. The illegality of National’s con-

duct with regard to the taxi dispute, see note 1, supra, was not ad-

vanced as a basis for denying an injunction against the strike.

We therefore do not consider whether the equitable doctrine

of ‘‘unclean hands,’’ see Florida East Coast Ry. Co. v. Brother-

hood of Locomotive Engineers, 5th Cir. 1966, 362 F.2d 482, 485,

or the statutory enactment of that doctrine embodied in §8 of

the Norris-LaGuardia Act, 29 U.S.C. § 108, see Butte, Anaconda

& Pac. Ry. Co. v. Brotherhood of Locomotive Firemen, 9th Cir.

1959, 268 F.2d 54, 60, cert. demed 361 U.S. 864, 80 S.Ct. 122, 4

L.Ed.2d 104, could have barred National’s request for a strike

injunction.

In this connection, consider the following:

“This was at a time when the Carrier itself was in vio-

lation of the Railway Labor Act. The cases suggest that at

that time, under the Act, the Union had the right to strike;

that right continues until the Act is complied with by the

Carrier, and thereafter ceases during and until exhaustion of

the procedures set up by the Act.... If the Carrier refuses

to follow the procedures of the Act .. . the Union may strike.’’

United Industrial Workers of the Seafarers Int’l Umon of North

America v. Board of Trustees of Galveston Wharves, 5th Cir. 1968,

400 F.2d 320, 332-334. Under this rationale, it is conceivable that

the strike at the time of the first hearing was lawful. The Union,

however, did not contest the initial strike injunction. In any

event, the Carrier promptly complied with the January 18 tem-

porary restraining order, issued contemporaneously with the strike

injunction, and was thereafter in compliance with the Act. The

strike, however, continued and was, therefore, even under the

Galveston Wharves rationale, in violation of the Act and properly

enjoinable from that point forward, if not before. Thus there would

have been no bar to the issuance of the second injunction issued on

January 20.

——- |

wage in unprotected” condert or conbart ddirwetty vite.

tive of the Act and that the discharged employees may

not inveke the Act te compel reinstatement by the em.

lhe Vt ix reasoned that ‘Sin the absence of the statute,

there was nothing in the law which forbade the diechanze

of strikers. There is nothing in the statute, properly con

strued, which protects from discchang these whe «trike in

detinance of its provisions. NLRB +. Draper Corp. ath

Cir, 1844, 1) Fld 198, The condect thas protected

is lawful conduct" NLRB vy. Pensterl Metallarqial

Corp... supra, 36 US. DO. S8 SC at 476.0 These prin.

ciples, developed ander. the NLRB, National angues, are

apposite here and justify the termination of the strikers.

Although the NLRB has been referred to for assistance

in construing the Railway Labor Act, ser ic. a. Steele v.

Lowisrille & NR. Co. 44, BIB UL SS. 1, WOO, 6H S.C.

2, Wl, 89 LK. UTR, we heed the Supreme Court's ad-

monition that the former ‘‘cannet be imperted wholesale

into the railway laber arena. Even rough analogies must

be drawn cireumspectly, with due regard for the many

differences between the statutory schemes.”" Brotherhood

of Railroad Trainmen v. Jacksonville Terminal Co., supra,

88 Sct. at 11S"

* E.a. NARB. v. Fapstee! Metallurgical Corp. 1929, 306 US.

240, 59 S.Ct. 490. 83 LR. 627; Netional Packing Co. v. NLRB,

1th Cir, 1965, 352 F.2d 482, 485 (unlawful picketing) ; Confection.

ery and Tobacce Drivers and Warchouscmen’s Union, Local 805 ¥.

NLRB L234 Cir, 1963, 312 F.2d 18, 112 ( wful wildcat strike) ;

N_E.R.B. vy. Marshall Car Wheel and Fo w Co., Sth Cir. 1955,

218 F.2d 409, 413 (unprotected strike) ; Ohio Ferro-Alloys Corp. ¥.

N.LR.B., 6th Cir. 1954, 213 F.2d 646, 651.

***The relationship of labor and management in the railroad in-

dustry has developed on a pattern different from other industries.

The fundamental premises and principles of the Railway Labor

Act are not the same as those which form the basis ofthe National

ne ee oe .* Brotherhded of Railroad Trainmen

hicago River end Indiana R.Co.. 1957. 353 U.S. 30, 31, 77 S.Ct.

, 636, 1 L.Ed.2d 622, 12.

Sia

Judge Wisdom succinctly stated the relevant differences :

step under the NLRB, it is only the first step ander

the Railway Labor Act in a ladder that leads to the

White Hoase if differences cannot be resolved. (Em-

neste oi v.

United Industrial Workers of the Seafarers Int'l Union

of North Amerwa v. Board of Trustees of Galveston

Wharres, Sth Cir, 1968, 400 F.2d 320; 329-90. National's

position fails to take into account the Railway Labor Act’s

explicit ban on self-help during the ‘‘freeze’’ imposed -

while the procedures of the Act run their course, a factor.

net present in the scheme established by the National La-

hor Relations Act. Self-help by the employees, as the

Unien correctly argues, does not automatically justify

self-help by the carrier. ‘*[Rijesort to the courts is prefer-

able to this kind of self-help . . . the “cooling-off’ policies of

the major dispute procedures cannot be effectuated by al-

lowing both parties simply to do away with the Act.”’

Ratland Railway Corp. v. Brotherhood -of Locomotive

Engineers, 2a Cir. 1963, 307. F.2d 21, 45 (Marshall, J.,

dissenting). To allow the carrier to discharge all em-

ployees who strike in violation of the Railway Labor Act

could wadermine the Act’s emphasis on ‘the continuance

of the employer’s operations and the employer-employee

relationship.” United Industrial Workers of the Sea-

farer’s Intl Union of North America v. Board of Trustees

of Galveston Wharves, supra. Under such a construction

the carrier might be tempted to precipitate an unlawful

«trike in order to justify a massive discharge. Cf. Brother-

hood of Railway and Steamship Clerks v. Florida East

Coast Ry. Co., supra, 384 US. at 247, 86 S.Ct. at 143.

We dé not believe, therefore, that the illegality of the strike

either relieved National of its duty te maintain the sfafas

que or justified the discharge of the strikers.

Nonetheless, we held that ander the circumstances of

this. case, the resert to self help by the carrier was aot

altogether prohibited by the Act. The strike, prompted

by the suspensions of the three workers in New Veork, was

spontaneous and unauthorived. Representatives of the

Union stated at the first hearing that they were hiving

difficulty returning the men te werk. The first injanetion,

directing the Union te restore the sfafas qvo by ending the

strike, proved ineffective. The strikers disregarded orders

of their Union to return to werk, and the carrier was al

ready faced with the disruption of service at the time of

the second hearing. At thes point! it was apparent that

the Unien had lest control ever the strikers. Contempt

citations directed against the Umien or its representatives,

therefore, were less likely to end the strike.

In short, an unmanageable work stoppage had occurred

and repeated attempts by the court, the carrier and. the

Union had-failed to restore the status qro when the car

rier resorted to self help. Restoration of the sfafas quo

had been frustrated by a seemingly unmanageable strike.

When viewed in this context, we cannot agree that) the

resort to self-help by the cagrier would vitiate the status

guo or subvert the orderly processes of the Act. A different

ease would be presented if there had appeared any sub-

stantial likeliheed that the strike could have been brought

to a prompt end by further court proceedings. But the

resort to the courts having proven ineffective, the carrier

was permitted to resort to self-help in order to operate

its business. It has been held in other contexts that strike

conditions may alter the carrier's statutory obligations to

maintain agreements and preserve the sfafus quo. Thus a

carrier faced with a lawful strike over issues which have

been carried through the procedures of the Act to an im-

passe may lawfully depart from other terms of the col-

lective bargaining agreement without following the pro-

ete

ewdures of the Act, to the extent * rensona bly necessary”

to continie its operations. Rrotherhned of Rarwaq and

Ntvamship Clerks v. Plorrda Rast Coast Ra. Co., 1908, 384

US. 288, 248, FROST. 1420, 1425, Plonda Kast Const

Ry Coe, vy. Brotherhood of Ratvoad Trammen, APLCTWO,

dth Cin, 1964, S96 Pla 12, 182. The same principle is

apposite here,

Rut ‘Yhe carrier's right te resort to «lf help was not

unlimited. Again, the principles developed in the Flor

ida Bast Coast cases, supra, are applicable here, Tn those

caves the courts defined the extent to which a earriet faced

with a lawful strike is free to institute changes without

complying with the procedures provided in) $6, The car

rier'’s right to self-help, though explicitly recognined, was

carefully cireumseribed, The Supreme Court stated that

“the justification for permitting the carrier te depart from

the terms of the collective bargaining agreement foes wm its

duty to continac fo serve the pablic.”’ Rrotherhood of Rad.

way and Steamship Clerks v. Florida East Coast Ry. Co.,

_ swpra, 384 US, at 247, 86 S.Ct. at 1425, 16 L.Bed.2d 501,

vn. (Kmphasis added). Consequently, “while the carrier

has the duty to make all reasonable efforts to continue its

operations during a strike, its power to make new terms

and conditions governing the new labor force is strictly

confined, if the spirit of" the Railway Labor Act is to he

honored.” 7d. at 384 U.S. at 247, 86 S.Ct. at 1425. As

Judge Brown stated for this Court:

“[1]n order for the District Judge to allow FEC to

escape the ban on institution of changes pending ex-

haustion of the statutory procedures recognized by the

decisions, he must be convinced that in order to make a

meaningful reality of FEC’s right to continue to

operate, the changes are reasonably necessary.

Florida East Coast Ry. Co. v. Brotherhood of Railroad

Trainmen, AFL-CIO, 5th Cir. 1964, 336 F.2d°-172, 182. We

recognize that the courts were there dealing with the car-

lationshin,”” Uoited Industrial Workers of the Seafarer’s

Gelvcstes Wharves, oupre, in the same in either context

We do not think the mass discharge of the strikers in

this case can be justified by the need to restore service. We

recognize that the district court was faced with a difficult

situation and had little time to deal with it. It is plain that

The discharge of the strikers was not necessary in order

to hire a new labor . Under both the NLRA and the

Railway Labor Act,’a carvier- need not discharge those

hired to replace strikers. E.¢.. N.L.R.B. v. Mackay Radio

€ Tel. Co., 1938, 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381;

't Ass'n v. Eastern Air Lines, Inc.,

S.D.N.Y. 1962, . Supp. 182, 194, ef’d 307 F.2d 510.

triggered the strike that they would be allowed to return

to work on Friday, January 24, 1969, three days after the

discharge of the strikers. It ix possible that the strikers

would have returned to work on Friday, January 24, when

the three disciplined employees returned to. work. The

carrier's discharge of the strikers, therefore, may have

foreclosed any opportunity t end the strike and restore

lot of the District Judge to

necessary for [National]

tions were filled either at the tinie of the discharge or be-

fore the time the strike would have run its course are not

entitled to reinstatement. On the other hand, strikers for

whom no replacements had been found when the strike

probably would have ended are entitled to reinstatement

from the time they would have returned to work. This

will require a factual determination on remand of the

position to cast light on this issue, should carry the burde

to show when they would have returned to work in the

absence of the discharge. Strikers who had not been re-

AE RE FO 9 e ea he RE “lame tee amen

placed at that time, as revealed by company records, ate

entitled to reinstatement,

‘Im summary, we hold that the exercise of self-help by

‘the carrier was not altogether barred by the Act. The

holding is limited to the facts of this case. We emphasire :

The wnauthorized, or wikicat, nature of the strike; the re-

peated refusal of the strikers to restore the sfefas que in

violation of the Act; the interruption of commerce; the

professed absence of control by the Union over the strikers,

thus diminishing the efficacy of fines or other contempt

measures directed at the Union or its representatives; and

the proven inability of the carrier, the Union, and the dis-

trict court to return the strikers to work. We further hold,

however, that the masse discharge of the strikers exceeded

the permissible bounds of employer self-help under the

circumstances.” National was entitled only to hire replace-

ments for the strikers in order to operate its airline. The

district court on remand should determine the precise ex-

tent to which the carrier exceeded the permissible bounds

of self-help, as defined here, and determine the right of

the strikers to reinstatement accordingly.

Reversen axp Remanxvep.

37a

APPENDIX H

IX TUR UNTPRD BTATRS DIETRICT COURT

IN AND POR THE SOUTHERN DIETHICT OF FLORIDA

MIAMI DIVISION

No. 69-83-Civ-CA

Natroxnan. Amuxes, Inc. Plaiwhf

Ixnrerxatioxat, Associarrox of Macnixtsts axp Aprospace .

Worxens, ef al., Defendants '

~ Filed: January 12, 1970

Order on Mandate

oral raling of December 23, 1969. That ruling was made

pursuant to the opinion and mandate of the Fifth Circuit

Court of Appeals entered September 23, 1969, and October

15, 1969, respectively (Docket No. 27312). Tife appellate

decision reviewed and reversed action taken by this Court

on January 24, 1969, in refusing to issue an injunction re- ;

_quiring National Airlines (hereinafter National) to rein-

state illegally strikimg members of the International Asso-

ciation of Machinists and Aerospace Workers (hereinafter

the Union) which the airline had discharged. The dis-

charge was effected by a telegram vext by National on Jan-

uary 20 stating that the strikers would be terminated if

they did not report back to work at their next scheduled

shift beginning at 3:30 p.m. on January 21. The telegram

was sent on the heels of the second injunction issued by

this Court ordering the strikers to return to work. Neither

ground of this case is set forth i

National Airlines, Inc. v. International Association of Ma-

ohemests and Aerospace orkers, of al, 6 BONS at

TOWN TOT ated is herein mmeerpotatod by nefenenee

The dete @iven thi. Court on rewiient ts Stew deraty wr

pred in the last senteneé of the appellate apimen. ''The

dhistinet court on remand shoukd determine the preeue ox

tent to whieh the earner exoeeded the permnodbhe beans

wf self help, as defined here, and determine the rucht of the

strrkers to neunstatement aowonrhney 48 FM at fn.

This statement muct be vrewed un the contest of the entire

opmon The promary emphasis of the Railway Labor Vet iss,

as stated in the epunen, the oontimnanece of the employer's.

operations amd the emplever employee relatensdup.”’

Uweted Industral Workers of the Noafance’s latl 1. Union

Of Nowth fmeroa wv Roond of Trustees of Galteston

Wahaorces, Oth Ore T8884 a ee ae With thes

m mund the appellate court heh that “the carrier's resert

ty self heljy was justified only te the extent deeessary te

restore service; ats exercise was allowable only insefar as z

it served that end" 416 Bo Mat 1006, The Court then

found that it was net necessary for the airline to discharge

the strikers in onder te hive a new work force and that the

arrline had exercised an rmpernmissible form of self help in

~«) deine. The court said that the airline should have re

Maced the strikers as it found new emploxees to do sa.

This court is charged in the opinion with determining

when the strike woukl have ended had it not been for the

legal discharge. Once that time ix established this court

must then determine which strikers had been replaced at -

that time. Thosd strikers who had been replaced then \

woukd not He entitled to reinstatement.

Om November 4 1962, following issuance of the mandate,

the Union fled a’motion-to reinstate the application for a

preliminary injunction originally denied by this Court on

January 34, 1969. This motion was accompanied by 937

substantially identical affidavits signed by discharged

strikers stating that they would have returned work at |

Cc”

7 '

Retabentinen 2A, Tem * The. antan ‘chen equa Cer

tlie? on the mandate. - Accordingly thin court echeduled a

were of conference: arel heariyre in ender te receive ews

denen en the Fretual yours outlined allove The extent to

which National exceeded the bound: Of wolf help; the time

at which the strike woekd have ended: and what trakers

wd heen replaced at that time.

Through the commendable effort: of all —" the great

butk of the evidenee hasbeen presented by tipulation.

This evhibitionol professionalan dramatieally shortened

the frome required te try the factual tees.

In fwd ax follows with regard to theee ieanes,

The catalyst which initioned the «trike was the January

17, T9609 kuapension of three union members for their fail

ure to carry out a work AesiEMMENE Mthough «perulative,

the evidence shows, and FE find that, in ‘the Abeenee of the

discharge, the «trike would have ended on January 24 when

the xuxpension expired. This conelosion presupposes that

the strikers would have deen willing to return with no guar

anter concerning pay and Tt benefite loet during their

7 day absence. Desling in t abstract I cannot find that

this ReapppHonit icon ix a fact however, it does seem reasonable.

As it happened, the strikers did not return on the 24th

because they had been discharged. The three men who had

heen stixpended did not return on the 24th either, ax the

Fifth Cireuit efroncously assumed. 416 F. 2d at 1006, 1007.

1 do not find that this factual error affects this aspect of

the case on remand. The purpose of the strike was to

secure for the three men the right to work. Thi« was ac-

complished by the expiration of the suspension. Whether

the three men actually physically returned to work at that

time would seem irrelevant to the:conelusion of the strike.

Next to. be determined isthe question of which strikers

_ had_been replaced as of January 24, 1969, I find that on

-—_—_—_-- - —

* (Footnotes appear at end df opinion.

o | Se ae

oS CRIT Tt

January 24 National had four men on its premises who had.

been hired to replace strikers. 1 further find that on that.

date National had approved and extended offers of em-

ployment to 63 replacements which had been accepted by

the applicants. These 63 men were not, howevef, working

for National on the 24th. The issue thus becomes whether

an offer of employment to a new man coastitutes replace-

ment of a former employee. Do the 63 offers mean that 63

‘*positions were Giled’’? 416 F. 2d at 1007. I find that,

in the circumstances, the offers did constitute replacenient.

The majority of the offers were made to men from outside

the State of Florida who had to return home and prepare

to move in order to begin work. The offers were consistent

with the airline’s efforts to maintain service. Onee Na-

tional made these offers it had a commitment to honor. It

had aecepted the applicants’ offer to work in classie eon-

tract terms. Therefore, on January 24 I find that 67

strikers had been replaced by National.

There remains for determination the most significant

issue, to what extent did National exceed the® permissible

bounds of self-help? The appellate court specifically held

that: the mass discharge of the illegal strikers was not per-

missible, ‘‘under the circumstances.’’ 1 find from the evi-

dence adduced since the remand that these ‘‘circumstances’’

are not as the Fifth Circuit perceived.

In its opinion the appellate court quoted the Supreme

Court as follows: ‘‘the justification for permitting the car-

rier to depart from the terms of the collective bargaining»

agreement lies in its duty to continue to serve the publie.’’

Brotherhood of Railway and Steamship Clerks, Freight

Handlers, Exp. and Station Emp., A.F.L.-C.1.0. v. Florida

East Coast Ry. Co., 384 U.S. at 247. This principle was

elaborated upon by Judge Brown in Florida East Coast

Ry. Co. x. Brotherhood of Railroad Trainmen, A.F.L. -

C.1.0., 5th Cir. 1964, 336 F. 2d 172, 182. He again em-

phasized that a carrier’s right to abrogate the status quo

during a time of contract negotiation depends on the car-

4la

rier’s need to institute changes in order to continue opera-

tion. In the instant case of course contract negotiations

were underway ; Section 6 notices had been exchanged and

both sides had an obligation to preserve the status quo.

National’s departure from the status quo by virtue of

its mass discharge was made in an attempt to continue

operations. Hindsight illustrates that this attempt was

successful. +

The reason for my decision that the strikers‘are not en-

titled to reinstatement lies in my finding from the undis-

puted evidence developed on the record, since’ remand,

that in order to hire a new work force it was necessary for

National to discharge all of the strikers. This evidence

contradicts the language used by the Fifth Circuit in their

opinion when they said ‘‘the discharge of the strikers was

not necessary in order to hire a new labor force.’’ This

conclusion, upon which the court’s later holding that ‘‘the

mass discharge ... exeeeded the permissible bounds of em-

ployer self-help”’ is based, is not supported by the present

record. It is now clear that in order to replace the illegaliy

striking men National had to offer prospective employees

seniority benefits and working conditions which would not

be available if there was the prospect of a mixture of old

and new men. National was hiring new men all over the

United States. It is a fact that few of these men would °

have made the move to Miami without the guarantee of a

solid seniority position and freedom from harassment by

fellow workers.

The next question is then, was it necessary for National

to hire a new work force ‘‘in order to make a meaningful

reality of its right to continue to operate.’’ Florida East

Coast Ry. Co. v. Brotherhood of Railroad Traimmen,

A.F.L.-C.1.0., supra, 336 F. 2d at 182. The answer is

obvious. Without men to service its airplanes the company

would have been forced to shut down. With supervisory

personnel carrying the load the airline had cancelled 36

flights by the 3rd day. of the strike and would have been

Pe ORE rd i et

ee ee et ee

CML H US SP ea

42a

forced to shut down within a very few days. The new men

enabled the company to continue operations and within a

>» month from that time 90'; of the scheduled flights were

operating. I recognize the appeal of the Fifth Circuit's

statement that **the discharge of those best suited to carry

on the carrier’s business . . . would seem self defeating.”’

However, it must be remembered that those ‘*best suited’’

individuals refused to work. Considering the circumstances

when they were discharged, National had no way to know

when they would deign to return to work absent capitula-

. tien to their demands by the company. As this court ab-

stractly found, the strikers would have most likely returned

when the suspension of the three men was lifted. Can this

court, or the appellate court, then say that the only way

in which National could exercise its right and duty to op-

erate an airline and serve the public in the face of an illegal

strike was to satisfy the demands Of the illegal strikers?

This conclusion would be a perversion of the Railway

Labor Act. "

The emphasis of the Act is on an orderly, prescribed pro-

cedure. The airline (and the union)* followed this proce-

dure and twice came before this Court in attempting to

maintain operations. Twice this court declared the strike

illegal, with the assent of the union leadership, and

twice this court issued an injunction requiring the

men to return to work. These injunctions were totally ig-

nored. The seriousness with which the strikers took their

responsibilities. under the law is illustrated by the testi-

mony of Messrs. Exum, Ober, Ballas and Brown before

this court on December 3, 1969. There was no further

procedure prescribed by the Railway Labor Act which the

airline could have invoked. Here I find relevant the fol-

lowing portions of the oft quoted Florida East Coast Ry.

Co. v. Brotherhood of Railroad Trainmen, A.F.L. -C.1.0.,

supra at 181:

‘*Indeed, the unquestioned right to resort to self-help

is the inevitable alternative in a statutory scheme

tha

which deliberately denies the final power to compel

arbitration. ...

“Since the right surely exists, the law must accom-

modate itself to the exercise of this power in a way

that will make it effectual. Brotherhood of Railroad

Trainmen v. Chicago R. & 1. R.R., 1957 358 US. 30,

40, 77 S.Ct. 635, 1 L. Ed. 2d 622. Anything less either

temporizes with the so-far-<determined policy against

compulsory arbitration, or puts the full weight of law

on the side of the employees by making it impossible

for the Railroad to @arry on save on the terms and

conditions imposed by the organized employees who

now refuse to perform as agreed.

. But when the machinery of industrial peace fails,

the policy in all national labor legislation is to let

loose the full economic power of each. On the side of

labor, it is the cherished right to strike. On manage-

ment, the right to operate, or at least the right to try

to operate.”’

The Fifth Circuit noted the relevance of this FEC case

in its opinion in this case and the analogy between the two

is clear.

In conclusion, this Court has often been reminded that it

sits as a court of equity while passing on the many re-

quests for injunctions in this case. There are hundreds

of wives and children of strikers caught up in this dispute

to whom the word equity is non-existent. These persons

are the victims of circumstances beyond their control. But

the strikers were not such victims although some were per-.

mitted to believe that the three men had been fired rather

than suspended. They chose their course—disregard for

court orders, disregard for their job except under their

conditions.’

The balancing of the equities is between these men and

the airline. True, the mass discharge was swift but the

NG nw

strike took place in the heart of the company’s busiest

time—the tourist season. The little noted words of a dis-

tinguished brother judge, the late Alexander Holtzoff, are

compelling here. In issuing an injunction restraining an

unlawful strike in a Railway Labor Act Case he said:

Any employee who without lawful excuse fails to ap-

pear for,work runs the risk of having such failure

properly treated by his employer, either as a tender of

resignation or as a ground for discharge. In re Cer-

tain Carriers, Etc., 229 F. Supp. 259 at 261 (D.C. D.C.,

, 1964).

If this principle is to be disregarded why are there laws

defining the legality of strikes? If workers can strike at

will no framework is need I hold that the principle is

not to be disregarded and reiterate in accordence with the |

framework of the Railway Labor Act, that, faced with an

illegal strike, National’s departure from the terms of its

collective bargaining agreement with the Union, to wit, the

_mass discharge was justified as it was reasonably necessary

to allow the airline to assemble a new work force and

thereby continue operation. Accordingly the Union’s mo-

tion for an injunction requiring National to reinstate those

strikers who have not returned to their jobs is Denied.

Tus 12th day of January, 1970.

s/ C. Ciype ATKINS

United States District Judge

45a

Foornores

1. The following is a simple affidavit :

AFFIDAVIT

Strate or FLoriwa

County or Dape

Berore Me, the undersigned authority, personally ap-

COME . cisescucedccescaces , who, after being first duly

(print name)

sworn, on oath, deposes and states as follows:

1. That.prior to my discharge and/or termination by

National Airlines, Inc., I was employed as a ............

-tCaecduaudeakesnneean , at the hourly rate of $.........

(print job title)

My average weekly earnings for a six month period prior

to my termination, including overtime pay, was approxi-

2. I was discharged and/or terminated on the ........

eee ee , 1969, and at that time I was working

ree shift. My Employee Number was.........

3. That on or about January 17, 1969, when the sit-down

began, I did join my brothers in supporting the three

brothers who were suspended in New York. After being

ordered off the premises of National Airlines, I had been

advised by the Union to return for work but my position

was always the same and that was that I would only return

to work when my three.brothers in New York were returned

to work. |

4. On January 24, 1969 I was aware that the Union was

asking Judge Atkins for a ruling to undo the discharges

and/or-terminations so that we could all go back to work,

as my three brothers in New York had been finally notified

by the Company to return back to work on that date. I

Pe ee oe

meh te BP HE

0 A OP PE ARARDE oF

2 ewe om as - eter. me er nmen=

wanted to go back te work on that date and join them. I

was denied this oppertunity and have been dented this

oppertunity to this date.

Fereruen Arriaxr Savern Nor.

(Jcmar Onerren)

2 Tt will be remembered that this court found National

vielated the status que by changing the airplane taxi

crew complement and that appropriate injunctive relief

was afforded the Union at their request. This injune

tion is honered to this day.

3. Ut must be noted that 226 strikers have voluntarily re

turned to their jobs at National as of this date.

47a

APPENDIX I

IN THE UNITED STATES COURT OF APPEALS

FoR THE FIFTH CIRCUIT

No. 2924

Nationa. Ainsanes, Inconronaren, Plaintiff Appellee,

versus

Inveuenationan Association or Macninists axnp ARgROBPACE

Workens, er as., Defendants- Appellants.

Appeal from the United States Distriet Court for the

Southern District of Florida

(July 15, 1970)

Before Gopsoro, Dyer and Moncan, Circuit Judges.

Gopnoiy, Cirenit Judge: This is the second appeal in a

dispute arising from the mass discharge by National Air-

lines, Ine. of wildeat strikers while ‘freeze’? provisions of

the Railway Labor Act were in effect.’ In the first appeal,

taken by the union from the denial of a temporary injune-

tion, National Airlines, Inc, v. International Ass'n of

Ml A.W., 416 F.2d 998 (5th Cir, 1969), this court held that

National had exeeeded the permissible bounds of self-help

and remanded to the District Court. National’s position

in that appeal was that it could, without more, discharge

employees ‘engaged in a wildeat strike and thereby termi-

nate their right to reinstatement. We pointed out that this

failed to take into account the Railway Labor Act’s explicit

\— ban on self-help during the ‘‘freeze’’ period, but that self-

help was not absolutely prohibited.

. .. We therefore hold that the ecarrier’s resort to

self-help was justified only to the extent necessary to

restore service; its exercise was allowable only in so

far as it served that end.

145 U.S.C. § 156.

‘wD

S46 rEPIRS

sh ited

)

rue PPO

Std

We do not think the mans discharmce of the strikers

in thin ease can. be justified by the need to restore

service, We reeognize that the dhiatriet eouft) was

faced with a dificult situation and had little tame te

deal with ut.) Tas plain that the court's central eon

eorn was the restoration of the, sfufas que. Neverthe

less, we hold that the discharge of the atrikern cants

tuted an umpermimcable form of self help. Phe dis

vharge of the strikers was not nee a AL order te

hire a new labor foree.

416 Fold at 1006.

Quite plainiy, this court saul that self help was allow

able to the extent necessary to restore service Lount thravt

restoration of serviee did net require the mass discharges.

Thus, having rejected the outer lines for dbscharges urged

by National, te. mass discharge of the strikers, weedetined

a narrow outer limit:

.TRleplacement of the strikers, but not discharge,

would seem compatible with the need to restore services,

It follows that these strikers whose positions were

tune the strike would have ran its course are nol en

titled fo reinstatement. On the other hand, strikers

for whom no replacements had beén found when the

strike probably would have ended are entitled to re

instatement from the time they would have returned

to work, This will require a factual determination

on remand on the point in time when the strikers

would lave returned to work, e.g, the date of the

three suspended employees in New York returned to

work. . The strikers, who are in a better ‘position to

east light on this issue, should carry the burden to

show when they would have returned to work in the

absence of the discharge. Strikers who had not been

replaced at that time, as revealed by company records,

are entitled to reinstatement.

416 F.2d at 1007. In concluding, thin court summarized

ith postion in thin way :

2. We further hold, however, that “the mane din

charge of the strikers exceeded the perminsible bounds

of employer vel pumder the circumstances, Na

tional wax entitles fo hire replacement« for the

strikers on order ¢ BPite itn airline. The district

court on remand should determine the precime extent

to whieh the earner execeded the permissible bounds

of self help, as defined here, and determine the right

of the strikers to rematatement accordingly.

416 Fad at 1007, The permissible hounds of self-help was

‘fan defined here,’’ and we had defined it as not including

mass discharges but limited to employing replacements to

the time the «trike would. have ended.

fn remand the Distriet Judge considered the permissible

limits of self help to be an issue for him to determine

vel non, He took evidence and found that National could:

not have hired a new Jabor foreeta-continue operating if it

had not discharged the strikers en masse. Since self-help

was authorized to continue operating, he concluded that no

strikers were entitled to reinstatement. He held that the

conclusion of this court that the. mass discharge exeeed?d

the bounds of self-help was not supported on the record ax

developed on remand, — ate

The District Judge ¢ rred in his conception of the man-

date of the prior appeal by which he was, of course, bound.

in re United States, 207 ¥.2d 567 (Sth Cir. 1953). By his

construction and the resultant fact finding, he reached a

conclusion precisely contrary to the holdings of this court

that self-help to continue service did not justify the mass

discharge and that strikers were entitled to reinstatment

unless replaced. The only matters for him to determine

when the strikers would have returned to work and

who been replaced as of that time, and to enter a direc-

aoe y ben _

Heaven Chavet Cbrerocer aren eergedeneSoed beer werntnnt entered, saved ter ceed percdrende

the ch@etences, if any, over what rermntatoment earrid

with af

Natiwoual urges that the deeimion of an appellate court on

Prion 250 Kranting a Lemporary enjutiction dees ne ental

lish the law of the ease, lo mited States v United States

Nmelteme BO MO Co BUS) Ese Ed 70 ron),

espootally when “evidence on a subsequent Crust wai carb -

stantially ahifYerent’’ from that presented at the orimranl

trial Whete yo Martha, 367 Peak 428, 482 (oth Cin 17)

But [t} he issues before the distriet court at the prehan

HAY ingunetion stage muy be sch that its order, or if the

omer is reviewed, the appellate court's order in conchoave

of the action" & Moore Federal Practwe W650 at T7000

(2d ed, 1968), Powmastown Sheet and Tube Cov. Sawyer,

MATS. O78 88 DOM Pas C12) Here the Meperlit y of

tnass discharge was presented an the motion for prefin

nary ingunetion and had been settled conclusively by the

omen of this court, ‘The exception to? law of the ease

where ‘evidence on a subsequent trial [is] substantially

different’ is inappheahle where by the prior appeal. the

issues not left open for decmion. Paull vo Archer Dantels ~

Midland Company, 318 Fild 612 (Sth Cir. 1963); Zdanok

vo Glidden Company. Durkee Famous Foods Birtiston, 327

Pod O44 (2d cir), cert. demed, 377 U.S. wt, 2 1. Mel. |

Ms (1984).

We tyrn to thegnatter of relief. In the proceedings on

remand the Mstrft Court held that in the absence of the

discharge the strike Would have ended on January 24 when

the suspension expired. 30S F. Supp. at 181-82,

The strikers are not barred from teinstatement because

-thev, arguably, failed to make am uncongitional application

for reinstatement. The decision for the District Court, as

framed by this court on the prior appeal, was to establish

‘the point in fime at which the suspended employees in New.

York. whose suspension triggered the strike, would have

? 5 >?

-°o bia \ “ -

i ¢

returned to work: That wan to be the point al whieh it wan

nnnunned the dinehargest enspboyern alow would have returned

fo work bad they been free to relunn rather than termi

tated ‘The matter for tyerrnocon wap an S [Pond reed A yulye®

epgedically recogmzed, an abaltnct one) tet whether the

Htcharged men ancoriditeonally offered to come lack te

work on January 24, of conditioned their offer, or whether

N sab ceonnaal needs lronally flere reimatatement,or offered

Ferree Cbisnee Chavet, Voest wheat if eeonbel renonably be inferred |

would have happened if the nunpensionn of the New York

employee had beet removed an a cauee, of disaTection.

“Phin i not the National Labor Ketations Act niluation of

the coonomig ntriker whe unéonditionally offers to return

lo work to protect hin right to pay, or the employer whe

offers remetatement whieh if net accepled may terminate

He: right to pay. We are concerned with the right of wrany

— Fully discharged employees ton sohewally directed reinstate

ment uncer the term of thin court's orders, The Dintriet

Daselye ss Cinnebinngy fixing January 24 aw the my on which the

strike would have ended is supported by a mmun of evi °

lenee.

However, weomust remand the case for farther findings

because of ancertaintios as to whethe® a small class of dix

charged employees had been-sreplyced. The Dietriet J udge

found that on January 24 National-had on ite premises four

men who had been hired to replace strikers and that it hire

63 more on the 24th? "Phese findings raise two: questions,

What does “hired”? mean, and when did National's right

to hire?’ replacements terminate? . — 2

; ;

The Distriet Court considered that a replacement was

hired and his predecessor's position. filled when National

* Phe union asserts that the 63 includes the four. This; is a

matter which can be clarified on remand. - oO,

In the lower court counsel for the union stated ‘that he woutd

accept the figure of 67 as the number of people ‘‘hired throvigh

the .24th.”’° In context, the reference was to a number and not

of the legal concept of who had been ‘‘hired’.

52a

had approved and extended an offer of employment to a

new man and the applicant had accepted the offer. He

noted that many of those in this category were applicants

from outside the State of Florida who had to return home

and prepare to move in order to begin work.

The word ‘‘hire’’ may be used in many different senses,

representing a legal conclusion as well as a summary of a

state of facts, International Ass’n of Machinists v. Inter-

national Air Service, 302 F.2d 808 (4th Cir. 1962), and

the word ‘‘replaced,’’ in the factual circumstances of the

present case, is also ambiguous. In cases of replacement

of a striker the critical time is when the arrangement with

the replacement worker becomes fixed and irrevocable.

International Ass'n of Machinists, supra. Thus, if any em-

ployer has the intention to bind itself to a firm contract of

employment, and the employee has accepted a specific job

assignment, the replacement is ‘‘hired’’ even though subse-

quently he may be divested of the job for failure to pass

medical or security clearance. Lodge 743, International

Ass’n of Machinists v. United Aircraft Corp., 299 F. Supp.

877, 893 (D. Conn. 1969).

Also, we do not know if the District Court considered

whether those persons he concluded were replacements be-

cause they had entered into employment contracts ever

actually reported for work. International Ass’n of Machin-

ists v. International Air Service, supra, was remanded in

order that the District Court could inquire into what en-

forceable obligations had been created between company

and replacements and whether the replacements had ever

acquired payroll status. The necessity of actually coming

on the payroll is especially significant in the particular con-

text of the present case where the undergirding rationale is

preservation of the status quo as provided by the Railway

Labor Act, a status the prior appeal sought to restore as:

of the time the strike would have ended. It would be in-

consistent with that concept to hold that a discharged em-

ployee could not be restored to status quo because a con-

tract had been made to replace him, if in fact the replace-

53a

ment never entered into the service of the company. In the -

run of the mill case of striker replacement the replacement .

is at work and the significance of a contract of employ-

ment ig only to establish the time at which his employment

commenced. In the present case, the formation of an em-

ployment contract with a replacement, which never: ripens

into actual employment, may not displace the statutory

right of the discharged employee to return to the status quo.

The persons determined to be entitled to reinstatement

must be reinstated with full benefits including back pay.

United Indus. Workers v. Board of Trustees of Galveston

Wharves, 400 F.2d 320 (5th Cir. 1968), cert. denied, 396

U.S. 905, 23 L.Ed. 2d (1969); Cf. Mungin v. Florida East

Coast Railway Company, 416 F.2d 1169, 1177 (5th Cir.

1969). The Galveston case describes both benefits and

manner of calculation.

Apparently some discharged strikers were taken back be-

fore January 24, some of them pursuant to their specific

requests, others as ‘‘new employees” without seniority.

Nationa: urges that any such employee who has lost senior-

ity, pay or other benefits, must grieve for his loss. Na-

tional is in the peculiar position of urging that those who

_ voluntarily came back to work are to be treated less well

than those who did not. Resort to grievance procedures

would only further fragment proceedings already difficult

enough and would be inconsistent with the underpinning

principle of restoration of the status quo. These employees

are entitled to the same type of relief as those whose right

to reinstatement is court-ordered.

Appellant claims that if a striker has been replaced and

a vacancy he is qualified to fill has since arisen, he is en-

titled to be reinstated to that vacancy and to back pay and

benefits from the time the vacancy arose. This issue was

not determined on the prior appeal or by the District Court

on remand and is for the District Court in the first instance.

Reversep and Remanvep for further proceedings not in-

consistent with this opinion.

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