Petition for aWrit of Certiorari — Brotherhood of Railway, Airline & Steamship Clerks v. Railway Express Agency, Inc.

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Gnited States

OCTOBER TERM, 1970

No. 1-63 9163 6

BROTHERHOOD OF RAILWAY, AIRLINE AND

STEAMSHIP CLERKS, FREIGHT HANDLERS, ET AL.,

Petitioner,

v8.

RAILWAY EXPRESS AGENCY, INCORPORATED,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

THOMAS W. McALILEY

ROBERT S. BECKHAM

NEAL P. RUTLEDGE

1010 Concord Building

66 West Flagler Street

Miami, Florida 33130

AND

CAROLE A. GARDINER

921 City National Bank Building

25 West Flagler Street

Miami, Florida 33130

Attorneys for Petitioners

A I NS ET Tn ER, LTS ET LE

MIAMI REVIEW — 371-4853 — 377-3721

Vase ale AN M Sa aOR is WB SUA AES a et Stem RCo maar TER Got Posy er

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INDEX

Page

OPINIONS BELOW - 2

JURISDICTION eae s = 2

STATUTES INVOLVED ees 2

QUESTIONS PRESENTED... 3

STATEMENT OF THE CASE 5

AGREEMENT AND REASONS FOR

GRANTING THE WRIT. 10

CONCLUSION 25

CERTIFICATE OF SERVICE 26

APPENDIX A

GEE ee App. A-1

APPENDIX B

Order ge App. B-1

APPENDIX C

Statutory Provisions Involved App. C-1

ii

INDEX OF AUTHORITIES

Case Page

Brotherhood of Locomotive Eng. vs. Baltimore &

O. R. Co.,

ee She ee COO) oo tee

Brotherhood of Locomotive Firemen & Enginemen .

vs. Florida East Coast R. Co.,

5 Cir. 1965, 346 F.2d 673 «22, 24

Brotherhood of Railroad Trainmen vs. Akron &

B.B. R. Co., ;

D. C. Cir. 1967, 385 F.2d 581, 601 _ 18

Brotherhood of 8. Train. vs. Atlantic Coast Line

R. Co.,

5 Cir. 1966, 362 F.2d 649, affirmed, 385 U.S.

20 (1966) . 22, 24

Brotherhood of Railroad Trainmen vs. Chicago

River & 1.R.C.,

ee SN ii 12, 23

Brotherhood of R. R. Tr. vs. Jacksonville Term. Co.,

394 U.S. 369, 377-378 (1969) _ 15

_— >

INDEX OF AUTHORITIES (cont.)

Case Page

Brotherhood of R.R. Trainmen vs. New York Cent.

R.R.,

6 Cir. 1957, 246 F.2d 114, cert. den., 355 U.S.

Ue COED oer 24

Brotherhood of R. R. Trainmen vs. Toledo, P. & W.

R.R.,

a oe oe Cee 2 ee 16, 22

Brotherhood of Railway Clerks vs. Florida East

Coast Ry. Co.,

884 U.S. 238 (1966) 19

Butte A. & Pac. Ry. vs. Brotherhood of Locomotive

Fireman,

9 Cir. 1959, 268 F.2d 54, cert. den., 361 U.S.

864 (1959) 24

Chicago B & Q R.R. vs. Railway Employees’ Dept.,

D.D.C., 1969, 301 F.Supp. 603 19

Chicago and Northwestern Railway Company vs.

United Transportation Union,

7th Cir. 1970, 422 F.2d 979, cert. granted, 39

U.S. Law Week 3131 5, 20, 21

Fibreboard Paper Products Corp. vs. N.L.R.B.,

379 U.S. 208 (1964) _ 9,18, 17, 18, 19, 22

iv

INDEX OF AUTHORITIES (cont.)

Case Page

Florida East Coast Ry. Co. vs. Brotherhood of R.

Trainmen,

5 Cir. 1964, 336 F.2d 172, cert. den., 379 U.S.

990 (1965) _. 19

Hilbert vs. Pennsylvania R. Co.,

7 Cir. 1961, 290 F.2d 881, cert. den., 368 U.S.

900 (1961) 23

International Union, U.A., A. & A. Imp. Wkrs. vs.

N.L.R.B., (

D.C. Cir. 1967, 381 F.2d 265 AUF ... 17, 22

Itasca Lodge 2029 vs. Railway Express Agency,

8 Cir. 1968, 391 F.2d 657 23

Local 24 of Intern. Broth. of Teamsters, etc. vs.

Oliver, |

358 U.S. 283 (1959) 17

Manion vs. Kansas City Terminal Ry. Co.,

353 U.S. 927 (1957) 23, 24

Marine Cooks & Stewards vs. Panama Steamship

Co.,

362 U.S. 365 (1960) 10, 11

BT ES Ra tad Bs TRA a el Ce ei

INDEX OF AUTHORITIES (cont.)

Case Page

National Air Lines, Inc. vs. International Ass’n of

M. & A.W.,

5 Cir. 1969, 416 F.2d 998 19, 24

N.L.R.B. vs. Katz,

369 U.S. 736 (1962) 19

Order of R.R. Telegraphers vs. Chicago & N.W.

R.R.,

362 U.S. 330 (1960) 17, 18, 19, 24

Rutland Railway Corp. vs. Bro. of Locomotive

Engineers,

2 Cir. 1967, 307 F.2d 21 14

Shore Line R. Co. vs. Transportation Union,

396 U.S. 142 (1969) 14, 18, 19, 22

Sinclair Refining Company vs. Atkinson

370 U. S. 195 (1962) 10

Textile Workers Workers Union vs. Lincoln Mills

of Alabama,

353 U.S. 448, 450-451 (1957) __ a Pa 24

vi

INDEX OF AUTHORITIES (cont.)

Case Page

United Indus. Wkrs. of Seafarers, etc. vs. Bd. of

Trustees of Galveston Wharves,

5 Cir. 1965, 351 F.2d 183 __............_ 17, 19, 22, 24

Weltronic Company vs. N.L.R.B.

6 Cir. 1969, 419 F.2d 1120

&

STATUTES

Norris-LaGuardia Act, 47 Stat. 70 (1932) as

amended, 29 U.S.C. §§101 et seq ... _ 6, 10, 11, 12,

13, 15, 16, 18, 21

Railway Labor Act, 44 Stat. 577 (1926) as amended,

45 U.S.C. §§151 et seq 5, 6, 18, 14, 15, 16,

17, 18, 20, 21

in the

Supreme Court

of the

Gnited States

OCTOBER TERM, 1970

No.

BROTHERHOOD OF RAILWAY, AIRLINE AND

STEAMSHIP CLERKS, FREIGHT HANDLERS, ET AL.,

. Petitioner,

v8.

RAILWAY EXPRESS AGENCY, INCORPORATED,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

Petitioner’s pray that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the Fifth Circuit entered in the above-entitled case on

January 25, 1971

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OPINIONS BELOW

The opinion of the Court of Appeals is set forth in

Appendix A hereto (pp. 1-15), and the judgment of

the District Court in Appendix B (pp. 1-6). The decision

of the District Court is not reported, but the Court of

Appeals decision is officially reported at 437 F.2d 388

(5th Circuit 1971).

Il

JURISDICTION

The judgment of the Court of Appeals, set forth in

Appendix A hereto, was entered on January 25, 1971. The

jurisdiction of this Court is invoked under 28 U.S.C.

§$1254(1).

III

STATUTES INVOLVED

The following statutes are involved and being lengthy

are set forth in Appendix C hereto, infra.

1. Section 2, First of the Railway Labor Act,

45 U.S.C. §152.

2. Section 7 of the Norris-LaGuardia Act,

29 U.S.C. §107.

3. Section 8 of the Norris-LaCuardia Act,

29 U.S.C. §108.

4. Section 9 of the Norris-LaGuardia Act,

29 U.S.C. §109.

8

IV

QUESTIONS PRESENTED

The questions presented are:

1, WHETHER A DISTRICT COURT MAY,

CONTRARY TO THE LANGUAGE OF

SECTION 7 OF THE NORRIS-La-

GUARDIA ACT, ENJOIN PEACEFUL

PICKETING BY A LABOR ORGANIZA-

TION IN A LABOR DISPUTE WITHOUT

THE TESTIMONY AND CROSS-EXAMJ-

NATION OF WITNESSES OR OBTAINING

A CLEAR AND EXPRESS WAIVER BY

THE LABOR ORGANIZATION OF THIS

FORM OF EVIDENCE.

WHETHER SECTION 8 OF THE NORRIS-

La-GUARDIA ACT ALLOWS A CARRIER

TO OBTAIN AN INJUNCTION AGAINST

PEACEFUL PICKETING ARISING OUT

OF A UNILATERAL CHANGE IN WORK-

ING CONDITIONS BY THE CARRIER

WITHOUT, PRIOR TO THE CHANGE,

HAVING EXERTED EVERY REASON-

ABLE EFFORT TO MAKE AND MAIN-

TAIN AGREEMENTS CONCERNING

RATES OF PAY, RULES AND WORK-

ING CONDITIONS AS REQUIRED BY

SECTION 2, FIRST OF THE RAILWAY

LABOR ACT.

4

8. WHETHER THE CONTRACTING OUT

OF SCOPE WORK (I.E., WORK TRADI-

TIONALLY PERFORMED BY ITS EM-

PLOYEES UNDER THE SCOPE OF

THEIR COLLECTIVE BARGAINING

CONTRACT) WITHOUT NOTICE, OR

AN OPPORTUNITY TO CONFER OR

NEGOTIATE AND UNILATERALLY

CHANGING ACTUAL OBJECTIVE

WORKING CONDITIONS IS A _ SO-

CALLED “MAJOR” DISPUTE UNDER

THE RAILWAY ACT.

WHETHER THE EMPLOYEES HAVE

THE RIGHT TO ENGAGE IN A PEACE-

FUL AND ORDERLY WORK. STOPPAGE

IN PROTEST OVER THE CARRIER’S

CONTRACTING OUT OF SCCTE WORK,

WITHOUT NOTICE OR “ PRIOR OP-

PORTUNITY TO CONFER AND NEGOTI-

ATE, AND IS SUCH A WORK STOP-

PAGE LAWFUL UNTIL REA ITSELF

COMES IN COMPLIANCE WITH THE

RAILWAY LABOR ACT.

5

V

STATEMENT OF THE CASE

This case presents issues under the Railway Labor

Act and the Norris-LaGuardia Act that are complementary

to and indeed inextricably related to a total consideration

of the issues presently before the Court in Chicago and

Northwestern Railway Company vs. United Transporta-

tion Union, 7th Cir. 1970, 422 F.2d 979, certiorari granted,

October 12, 1970, 39 U. S. Law Week 3131.

This case arose when Respondent, REA, sued to

obtain a labor injunction against BRAC and Petitioners,'

who are subordinate labor organizations. The basis for

REA’s suit was that Petitioners had engaged in an

illegal strike over a “minor” dispute under the Railway

Labor Act, 45 U.S.C. §151 et seq. Respondent sought and

received a temporary restraining order and this order

was continued by agreement until the hearing of July

22, 1969, on REA’s application for preliminary injunc-

tion. The answer of Petitioners here and defendants be-

low denied that the work stoppage and picketing was

illegal under controlling Federal law; claimed that the

dispute was “major” because of REA’s unilateral con-

tracting out of scope work to another employer all without

notice and an opportunity to confer and negotiate; that

REA had themselves not complied with the Railway Labor

1The Brotherhood of Railway, Airline and Steamship Clerks,

Freight Handlers and Station Attendants (hereinafter BRAC) was an

original party to the injunction suit in the District Court as well as to

a pending suit seeking money damages against Petitioners. BRAC was

dismissed from both suits by stipulation with Railway Express Agency,

Inc. (hereinafter REA) and is not a party to this suit. Petitioners here

are subordinate labor organizations and their officials. All emphasis

will be supplied unless otherwise indicated.

Ya Fa Aoddht BA te

Te ee Re eM TENT RE Tre Pe ee ce en oa a

6

Act and finally that the Court lacked jurisdiction to issue

an injunction by virtue of the commands of the Norris-

LaGuardia Act, 29 U.S.C. §101 et seq. Petitioners also

filed a counterclaim seeking the restoration of the status

quo ante until REA had followed the mandates of the

Railway Labor Act, specifically Section 2 (Seventh) and

Section 6, 45 U.S.C. §102 (Seventh) and Section 156.

REA maintains field offices at major airports around

the country for the handling of REA air express transfer

work. The work performed by REA employees at these

facilities is that of picking up and handling air express,

processing the various shipping documents, collecting

charges and performing other routing, forwarding, trac-

ing and ground and accessorial duties. It was admitted

by REA and reflected in the opinions below that at the

Atlanta Airport and indeed within the five-state Gulf

District that REA employees have traditionally done this

transfer work. In the Atlanta Airport where this con-

troversy arose, REA employees had made the air express

transfers for over 20 years. REA concedes the history

of the five-state Gulf District concerning performance of

the work in question, but presented affidavit evidence to

the trial court that it had been able to contract out this

work at other airports around the country. This was

accepted by the trial court and the Court of Appeals for

the Fifth Circuit (Appendices A & B). Petitioners do

not concede this to be the case nor have they, for reasons

hereinfater set forth, had an effective opportunity to

develop facts concerning these alleged past practices.

The labor dispute between REA and the Petitioners

that actually led to the work stoppage, and, hence, to

this litigation began when REA, on June 1, 1969, con-

7

tracted out to Delta Air Lines a portion of REA’s air

express transfer work historically handled by Petitioners

at the Atlanta Airport. This unilateral change in work-

ing conditions was made without any advance notice to

Petitioners and without any opportunity of Petitioners

or others to confer and negotiate with REA about this

change, although REA had been meeting with the airlines

over a substantial period of time. REA made the same

offer to subcontract out the questioned transfer work

to the other airlines using the Atlanta Airport, but only

Delta, whose ground personnel are non-union, accepted.

No Section 6 notice (45 U.S.C. §156) was filed and no

party has taken this issue of subcontracting to Delta to

an administrative tribunal. Petitioners protested the

unilateral action of REA all to no avail. At no time

did REA subsequently attempt to confer with any author-

ized union representative about the dispute, but two

abortive meetings were held at Petitioners’ insistence.

‘REA did not even make a pretense of negotiation at these

meetings. On June 16, 1969, picketing commenced and

thereafter spread to other cities and to connecting rail-

roads when Petitioners followed the work taken there by

REA supervisors.

This suit was filed on June 25, 1969, and the

temporary restraining order was entered on that date.

On July 22, 1969, the District Judge held a hearing,

noticed and scheduled as one on REA’s application for

preliminary injunction. The parties appeared for the

hearing and over thirty witnesses were present and

available to testify as to the issues in controversy. The

trial judge asked the parties to stipulate to as many

facts as possible, and then, after the hearing closed, to

8

submit affidavits to him concerning certain facts in

controversy. At no time did Petitioners ever waive their

right to present and cross-examine live witnesses or any

procedural guarantees secured to them by Congress under

the Norris-LaGuardia Act. The record is clear that there

was no express waiver and Petitioners submit that a

complete reading of the record will reveal that there

is not even an implied waiver of any rights they may

have under Sections 7 and 9 of the Norirs-LaGuardia

Act, 29 U.S.C. §§107, 109.

There were many facts stipulated to by the parties,

but certain crucial questions remained in dispute, namely:

the magnitude of the change at the Atlanta Airport and

its effect on the employees at REA, their wages and

number of available jobs, and the bargaining unit of

Petitioners; the precise nature of the change; the prac-

tice, if relevant, outside the five-state Gulf District;

whether REA had made unilateral changes elsewhere,

and if so, whether it affected jobs or the bargaining units;

whether the change came to the attention of the union

official charged with administering the contracting and

enforcing the employees’ Railway Labor Act rights; or

whether any unilateral change elsewhere was done only

after agreement, written or oral, with the responsible union

officer.

Without further hearings the District Court on De-

cember 8, 1969, entered a permanent injunction char-

acterizing the events of July 22, 1969, as a “hearing on

the merits” (Appendix B, p. 1). That opinion did not

contain findings of fact and conclusions of law and deter-

mined that the dispute at REA was a “minor” dispute

in the parlance of the Railway Labor Act.

Cl

Petitioners appealed the order of the District Court

to the Court of Appeals for the Fifth Circuit and received

an adverse decision on January 25, 1971. The Fifth Cir-

cuit, while conceding that a change in working conditions

had indeed taken place and without notice or prior op-

portunity for Petitioners to confer or negotiate with REA,

held that the issue involved a mere interpretation of the

collective bargaining agreement and thus was a “minor”

dispute under the Railway Labor Act, and the jurisdic-

tion of the Special Adjustment Board could be protected

by injunctive relief. The Court of, Appeals viewed the dis-

pute as one over the breadth of management’s preroga-

tive to unilaterally subcontract scope work and declined

to accept Petitioners’ view that Fibreboard Paper Products

a Corp. vs. N.L.R.B., 379 U.S. 208 (1964) dictated a result

contrary to that found by the District Judge. The Fifth

Circuit was further of the view that Petitioners “. . . ap-

pear to have waived oral testimony by witnesses. . .” and

thus there was no violation of Section 7 of the Norris-

LaGuardia Act under the circumstances at bar. Finally,

the Court of Appeals below heid that Section 8 of the Nor-

ris-LaGuardia Act only required REA to meet with Peti-

tioners after it had subcontracted scope work to Delta in

order to meet the duties imposed on the parties to a labor

dispute under Section 2, First of the Railway Labor Act

and perfect its right to enjoin peaceful picketing.

. . na eR OEP TRE STON ernen at

LIBERO LOGE gS RIF

From these decisions below, this petition follows and

the cause reaches this Court without one word of live testi-

mony being received and without a single attempt by REA

to settle the controversy by prior notice, and meaningful

conference and negotiation.

10

VI

AGREEMENT AND REASONS FOR

ALLOWANCE OF THE WRIT

The decisions below, if allowed to survive, destroy the

procedural safeguards of §§7 and 9 of the Norris-La-

Guardia Act, 29 U.S.C. §§107, 109 and ignore the require-

ments of §8 of the same Act of Congress, 29 U.S.C. §108

that those who seek the labor injunction must have com-

plied “. . . with any obligation imposed by law. . .”

1. The procedural requirements of Sections 7 and 9

of the Norris-LaGuardia Act, 29 U.S.C. §§107, 109.

Congress in its wisdom was concerned about abuses

of Federal District Courts in granting labor injunctions

and passed the Norris-LaGuardia Act, 29 U.S.C. §101 et

seq. That this Act placed “. . . limitations upon the jurisdic-

tion and authcrity of the courts of the United States. . .”

cannot be doubted. Section 2, Norris-LaGuardia Act, 29

U.S.C. §102. Marine Cooks & Stewards vs. Panama Steam-

ship Co., 362 U.S. 365 (1960) ; Sinclair Refining Company

vs. Atkinson, 370 U.S. 195 (1962).

The plain language of the Norris-LaGuardia Act with-

out more, would seem to compel the issuance of the Writ.

The Act commences in Section 1 with a simple command:

“No court of the United States ... shall have

jurisdiction to issue any restraining order or

temporary or permanent injunction in a case in-

volving or growing out of a labor dispute except

in strict conformity with the provisions of this

chapter...” 29 U.S.C. §101.

RATE PAE REE

11

Strict conformity to the procedural safeguards of

the Act require “. . . hearing the testimony of witnesses

in open court (with opportunity for cross-examination)

in support of the allegations of a complaint. . .” (29 U.S.C.

$107) and that no labor injunction be granted except

“ on the basis of findings of fact made and filed by

the court in the record of the case prior to the issuance

of such restraining order or injunction. . .” (29 U.S.C.

§109). |

The Court of Appeals for the Fifth Circuit in its deci-

sion noted in its concluding paragraph that petitioners

“ . . appear to have waived oral testimony by witness-

es...” (Appendix A). Surely the Norris-LaGuardia Act

requires more than the appearance of waiver. This Court,

in a landmark Norris-LaGuardia Act ease, Marine Cooks &

Stewards vs. Panama Steamship Co., supra, stated at page

369 that the Act’s language is broad because Congress

“| | was intent upon taking the Federal Courts out of the

labor injunction business except in very limited circum-

stances left open for federai jurisdiction. . .” In the same

ease, Mr. Justice Black pointed out with relevance here

that strict compliance with all the requirements of the

Norris-LaGuardia Act is a prerequisite to an injunction:

“Even in the limited jurisdiction the Norris-La-

Guardia Act leaves to federal courts in labor con-

troversies, other sections of the Act narrowly

circumscribe the cases where, the parties against

whom, and the circumstances in which, injunc-

tions may issue. If, however, issuance of a specific

injunction is prohibited by one section, such as

$4, compliance with the requirement of another

section, such as §7, does not justify the injunc-

tion.” 362 U.S. 365, 366, Footnote 2.

12

The Courts below were of the view that a labor in-

junction was necessary in order to vindicate the processes

of the Railway Labor Act (Appendices A & B). Clearly

if this is ultimately found to be the case, the District Court

has the power and Norris-LaGuardia is no bar, Brother-

hood of Railroad Trainmen vs. Chicago River & I.R.C., 353

U.S. 30 (1957), but if and only if there has been “strict

compliance” with every section of Norris-LaGuardia, in-

cluding Sections 7 and 9, 29 U.S.C. $$107 and 109, This

was not done, the Writ should be granted and the cause

returned to the District Court on this ground alone.

The proceeding of June 22, 1969, and the events sur-

rounding it give some explanation of why so fundamental

an error was committed in a labor injunction case. The

District Judge below had signed five TRO’s and had be-

fore him a damage suit arising out of the events at REA.

He was busy with other matters, the hearing on the pre-

liminary injunction began late, and he was faced with a

courtroom of over thirty witnesses ready to testify. Peti-

tioners were there, prepared to put on testimony and have

the opportunity to cross-examine live witnesses, not reply

to cold affidavits with a patent inequality of opportunity

to compete with REA on “national” data and contest

practices alleged to have taken place outside the Gulf Dis-

‘trict. Petitioners cooperated with the Court in a sort of

pretrial conference to narrow the issues. The price of

such cooperation should not be a “waiver” of their rights

under an Act of Congress, 29 U.S.C. §§107, 109. No

“waiver” of any right under any Act of Congress was

expressed, implied or intended. The record is to the con-

trary.

ae LEE NA ME a

13

Hindsight, with perfect vision, at best would require

Petitioners to inquire of the Court more specifically what

it had in mind. Fair play, as well as Section 7 of the

Norris-LaGuardia Act, 29 U.S.C. §107, would likewise

seem to require that Petitioners be advised that affidavits

were to be substituted for the presentation of its own

witnesses and the confrontation and cross-examination of

REA’s witnesses, and that the hearing of July 22, 1969,

was not at the very most what it was represented to be,

that is, one on REA’s motion for a preliminary injunc-

tion. At the very least Petitioners are entitled to an eviden-

tiary hearing on the areas of conflict remaining after

exhaustion of the stipulation and affidavit process.

2. REA failed to comply with the duty imposed by

Section 2, First, and 2, Second, of the Railway Labor Act

and in so doing failed to meet the statutory prerequisites

of Section 8 of the Norris-LaGuardia Act for a labor in-

junction.

The “clean hands” provision of Norris-LaGuardia (29

U.S.C. §108) rarely arises in this context. Here, someone

other than the national union with its statutory power to

issue a Section 6 notice (45 U.S.C. §106), is insisting on

its Railway Labor Act rights. Petitioners urge that Sec-

tion 2, First, Section 2, Second, of the Railway Labor Act

(45 U.S.C. §102 First, Second) coupled with the teaching

of Fibreboard Paper Products Corp. vs. N.L.R.B., 379

U.S. 203 (1964), and the plain language of Section 8 of

Norris-LaGuardia command a reversal of the courts be-

low irrespective of the fact that neither BRAC nor REA

has seen fit to file a notice under Section 6 of the Railway

Labor Act (45 U.S.C. §106).

STE EM

PRU TARR CR AMPED HRT, 8

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LVF RIE TT 8 NEEM TEN PoP

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14

The Court of Appeals below embraced Rutland Rail-

way Corp. vs. Bro. of Locomotive Engineers, 2nd Cir. 1967,

307 F.2d 21, in reaching their decision. The Fifth Circuit

interpreted Rutland to hold that the requirements of Section

2, First, and Section 2, Second, of the Railway Labor Act

(45 U.S.C. §§$152, First, Second), only require that a car-

rier and union “confer” after a unilateral change in work-

ing conditions but before going to court for a labor in-

junction. Rutland, supra, involved a case where the carrier

was simply going to change train runs and regardless of

the change the employees of Rutland were going to do the

work and operate the trains. Here, of course, the facts are

vastly different, for if the facts were identical to the

situation in Rutland and the dispute involved an inter-

carrier transfer of work there is an express contractual

provision covering such a contingency and the courts be-

low would be nearer to being correct in their decision. But

see Shore Line R. Co. vs. Transportation Union, 396 U.S.

142 (1969).

In this case, however, scope work (i.e., work tradi-

tionally performed by REA’s own employees under the

scope of their collective bargaining contract) was con-

tracted out to another employer and Petitioners suffered

harm both individually and to the bargaining unit.

If Rutland and the decision of the Fifth Circuit be-

low both hold that the Railway Labor Act, under these

facts, allow the carrier to make unilateral change with-

out prior notice and an opportunity to confer and to con-

tract out scope work to another employer and, only places

the simple requirement or a subsequent abortive and mean-

ingless conference as the prerequisite to meeting the re-

quirements of Section 2,-First, and 2, Second, of the Rail-

15

way Labor Act and thus Section 8 of the Norris-LaGuardia

Act, then Petitioners can only urge that the issue be met

squarely and summarily reversed.

If the Railway Labor Act does any one thing, it dis-

courages a disruption of the status quo and the taking of

unilateral action by any party. Its very purposes are:

“(1) to avoid any interruption to commerce or to the

operation of any carrier engaged therein... (4) to pro-

vide for the prompt and orderly settlement of all disputes

concerning rates of pay, rules of working conditions. . .”

(45 U.S.C. §151a). The first duties placed on all parties

before the “major-minor” dispute issue is reached are to:

“Exert every reasonable effort to make and main-

- tain agreements concerning rates of pay, rules

and working conditions, and to settle all disputes,

whether arising out of the application of such

agreements or otherwise, in order to avoid any

interruption to commerce or to the operation of

any carrier growing out of any dispute between

the carrier and the employees thereof.” 45 U.S.C.

§152, First.

“All disputes . . . shall be considered, and if pos-

sible, decided, with all expedition, in con-

ference. . .” 45 U.S.C., §152 Second.

Mr. Justice Harlan stated it well for this Court in

Brotherhood of R.R. Tr. vs. Jacksonville Term. Co., 394

U.S. 369, 377-378 (1969) when he called the duty imposed

by §2, First (45 U.S.C. §152, First) on both manage-

ment and labor “the heart of the Railway Labor Act. . .”

What happened here is the very thing that the Railway

Labor Act seeks to prevent.

16

Section 8 of the Norris-LaGuardia Act (29 U.S.C.

§108) in turn denies an injunction in a labor dispute to

a complainant “. . . who has failed to comply with any

obligation imposed by law . . . or who has failed to make

every reasonable effort to settle such dispute by either

negotiation or with the aid of any available governmental

machinery of mediation or voluntary arbitration.”

Brotherhood of R.R. Trainmen vs. Toledo, P. & W. R.R.,

321 U.S. 50 (1944).

Applying these Congressional Acts to the case at bar,

the record is uncontroverted that Petitioners have his-

torically obeyed the Railway Labor Act. Strikes were rare

and REA, by following the Act had accomplished massive

reductions in work forces. REA reduced its forces 38%

in the Gulf District and 32% nationally in the period be-

tween 1965-1970. In effecting these changes Petitioners

had come to expect, as indeed they have the right to ex-

pect, that they would have a prior opportunity to confer

and negotiate.

REA contracted out scope work, performed by Peti-

tioners for over two decades, all without warning, notice

or an opportunity to confer. Income was affected and

jobs stood in jeopardy. The inevitable happened and the

trial court was confronted with a full-blown labor dispute.

One can hardly conceive of a better way to provoke an in-

terruption of commerce than these actions of REA.

Can it be said that an employer who contracts out

a sizeable portion of the work being done by his employees

fulfills the cardinal duty of §2, First, of the Railway

Labor Act when he presents them with a shocking fait

accompli—a threat to their vital welfare—on some gray

17

morning without warning or explanation, albeit the em-

ployer has planned and negotiated the move himself for

weeks and months in advance? Section 2, First of the

Railway Labor Act would seem to require more (45 U.S.C.

§152, First) and indeed does require more.

This Court has recognized the adverse effect upon

labor management relations of an employer making un-

ilateral changes in working conditions even where there is

no express prior agreement concerning the subject of the

unilateral change, and has held such an «1ion unlawful,

Fibreboard Paper Products Corp. vs. N.L.R.B., 379 US.

203 (1964). The Court of Appeals (Appendix A) seems

to hold that Fibreboard, supra, and its own United Indus.

Wkrs of Seafarers, etc. vs. Bd. of Trustees of Galveston

Wharves, 5 Cir., 1965 351 F.2d 183, restrict mandatory

bargaining about subcontracting and unilateral change

by an employer in working conditions to the situations

where a “. . . bargaining unit is eliminated in whole or

substantial part.” (Appendix A)

Decisions of other Courts of Appeal are to the con-

trary, e.g., International Union, U.A., A. & A. Imp. Wkrs.

vs. N.L.R.B., D.C. Cir, 1967, 381 F.2d 265, and it would

seem to matter little that the subcontracting was begun

piecemeal or that because a few men were involved or

potentially involved that the unilateral change is “de

minimus” and thus different legal duties apply. Fibre-

board, supra, at 212-218, Local 24 of Intern. Broth. of

Teamsters, etc. vs. Oliver, 358 U.S. 283 (1959), Interna-

tional Union, U.A., A. & A. Imp. Wkrs vs. N.L.PR.B.,

supra. This Court in Fibreboard, supra, relied on Order

of R.R. Telegraphers vs. Chicago & N.W. R.R., 362 U.S.

330 (1960) a decision under the Railway Labor Act, and

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18

certainly it cannot be seriously disputed that the duty to

bargain over change in working conditions is greater un-

der the Railway Labor Act than the National Labor Rela-

tions Act., Brotherhood of Railroad Trainmen vs. Akron

& B.B. R. Co., D.C. Cir. 1967, 385 F.2d 581, 601. Likevrise

the assertion of a management’s prerogative to claim

“minor dispute” or the assertion of “non-bargainability”

have little creditability under the Railway Labor Act,

Brotherhood of Railroad Trainmen vs. Akron & B.B. R.

Co., supra; Order of R.R. Telegraphers vs. Chicago & N.W.

R.R., supra. The decision of the Court of Appeals below

would seem for the first time in recent years to expand

to the area of subjects beyond the pale of required bar-

gaining.

The import of Fibreboard, supra, and the provisions

that are the heart of the Railway Labor Act, Section 2,

First, relate clearly to the issue here. If it is established that

the working condition has been in effect for a substantial

period of time and is the actual objective working condi-

tions out of which the dispute arose, a carrier may not

unilaterally change it—viz, subcontract out scope work—

without first negotiating and this is true even in the ab-

sence of a specific contractual provision. See, Shore Line

R. Co. vs. Transportation Union, supra.

When a carrier fails to negotiate about such a manda-

tory subject of bargaining, it does not comply with Sec-

tion 2 of the Railway Labor Act (29 U.S.C. §152, First),

and cannot be said to have complied with “. . . any obliga-

tion imposed by law. . .” or to have made “.. . every reason-

able effort to settle such dispute . . .” as commanded by

Norris-LaGuardia (45 U.S.C. §108) before the issuance

of a labor injunction.

19

At the very least under the circumstances of this case,

the employer has the duty to notify the employees bargain-

ing representatives in advance and at least afford such

representatives a prior opportunity to confer—if not nego-

tiate—about the impending change which will so material-

ly affect the employees and their job security. Fibreboard

Paper Products Corp. vs. N.L.R.B., supra; Brotherhood

of Railway Clerks vs. Florida East Coast Ry. Co., 384

U.S. 238 (1966) ; Order of Railroad Telegraphers vs. Chi-

cago & N.W. R.R., supra; United Indus. Wkrs. of Sea-

farers, etc. vs. Bd. of Trustees of Galveston Wharves,

supra; Weltronic Company vs. N.L.R.B., 6 Cir. 1969, 419

F.2d 1120; Chicago B & Q R.R. vs. Railway Employees’

Dept., D.D.C. 1969, 301 F. Supp. 603; cf. N.L.R.B. vs.

Katz, 369 U.S. 736 (1962); Shore Line R. Co. vs. Trans-

portation Union, 396 U.S. 142 (1969) ; National Air Lines,

Inc., vs. International Ass’n of M. & A. W., 5 Cir. 1969,

416 F.2d 998.

The above-cited provisions of the Railway Labor Act,

the cases cited and specifically Fibreboard, supra, would

seem, however, to require much more before a carrier can

be said to have been in “strict compliance” with Section 8

of the Norris-LaGuardia Act, 29 U.S.C. §108. To qualify

for the labor injunction, the carrier simply has to notify,

confer or negotiate about impending change, especially

on mandatory subjects of bargaining.

Notice before change with a concurrent opportunity

to confer and negotiate is essential if Section 2, First, is

to be meaningful, for the Fifts Circuit, itself, has noted

“bargaining is a sham” if a carrier has already done in

fact what it seeks to do by negotiation, Florida East Coast

Ry. Co. vs. Brotherhood of R. Trainmen, 5 Cir. 1964, 336.

F.2d 172, 180, cert. den., 379 U.S. 990 (1965).

20

This Court, in Chicago & N.W. R.R. Railway Co. vs.

United Transportation Union, supra, has before it the

question of whether a party, after the exhaustion of all

major dispute procedures can, for the first time, litigate

under Section 2, First of the Railway Labor Act (45

U.S.C. §152, First) the question of whether the parties

“exert[ed] every reasonable effort to make and maintain

agreements . . . and to settle all disputes.” Clearly, the

position of the Chicago & Northwestern Railway Com-

pany is much more extreme than that of these Petitioners

both as to the existence and timeliness of a justiciable

issue under Section 2, First of the Railway Labor Act.

Petitioners here will not repeat the extensive arguments

made in the pending Chicago & Northwestern Railway

Company case, supra. If Section 2, First of the Railway

Labor Act imposes duties upon the parties to a dispute

under that Act, and Petitioners submit that it does, then

clearly the issue presented in this petition arising out of

the events at REA in Atlanta, Georgia, presents threshold

considerations that must be resolved before the issue now

pending in Chicago & Northwest Railway Company can

be decided. It is one thing to urge as the carrier did in

Chicago & Northwestern Railway Company that it can

sit back and litigate the question of good faith bargaining

after the exhaustion of major dispute procedures and quite

another to urge that at the very inception of any change

or alteration in rates of pay, rules and working condi-

tions that a carrier is required, prior to change in work-

ing conditions, to sit down, confer and negotiate with the

responsible union official and prevent an interruption in

commerce and thus avoid presenting those officials with

a fait accompli and a threat to the welfare of those they

represent. Surely if Section 2, First, is to have any justici-

able meaning, it would be in the context of the requirement

21

imposed by Section 8 of the Norris-LaGuardia Act for a

earrier to “. . . comply with any obligation imposed on

law. . .” prior to qualifying for the extraordinary relief

of a labor injunction. Such a view of Section 2, First, read

in conjunction with the entire Act, would be readily and

easily enforceable and unlike the position advocated in

Chicago & Northwestern Railway Company case by the

carrier not do violence to the parties to a major dispute

knowing when self-help was available to them with its

salutary effects on realistic hard bargaining and reaching

labor contracts. Section 2, First, and the duties imposed

thereby, when viewed in the context of the dispute at REA

in Atlanta, Georgia, would be readily enforceable by, on

the one hand, a carrier knowing that it could not get a

labor injunction unless it did make every reasonzhle effort

“ . to make and maintain agreements and to settle all

disputes whether arising out of the application or other-

wise. . .” and, on the other hand, the union knowing that

if it did not deal in good faith with the carrier at the in-

ception of a dispute, that the carrier or for that matter

the union had recourse to the Federal Courts.

Petitioners submit that in this way, the purpose of

the Railway Labor Act “(1) To avoid any interruption

to commerce or the operation of any carrier engaged there-

in...” and “. ..(4) To provide for the prompt and orderly

settlement of all disputes concerning rates of pay, rules or

working conditions. . .” (45 U.S.C. §151a) can be further-

ed and given practical meaning, and at the same time

preserving the ultimate right of and time for self-help.

8. Whether the contracting out of scope work (i.e.,

work traditionally performed by its employees under the

scope of their collective bargaining contract) without notice,

22

or an opportunity to confer or negotiate and unilaterally

changing actual objective working conditions is a so-called

“major” dispute under the Railway Labor Act.

The foregoing argument reflects that the entry of the

injunction below was erroneous whether the dispute at

REA be classified “major” or “minor” within the parlance

of the Railway Labor Act because of the commands of

Section 2, s‘irst, of the Railway Labor Act coupled with

requirements of Section 8 of the Norris-LaGuardia Act.

Petitioners will not repeat the discussion of the nature

of the dispute except to say that it is clear that when REA

contracted out scope work in a way that adversely af-

fected its employees and unilaterally changed the actual

objective working conditions out of which the dispute

arose, all without notice to Petitioners or an opportunity

to confer and negotiate, then the dispute at REA was a

“major” one under the Railway Labor Act. Fibreboard

Paper Products Corp. vs. N.L.R.B., supra; Shore Line R.

Co. vs. Transportation Union, supra; International Union,

U.A., A. & A. Imp. Wkrs. vs N.L.R.B., supra; United

Indus. Wkrs of Seafarers, etc. vs. Bd. of Trustees of Gal-

veston Wharves, supra. That being so, it was error to en-

join Petitioners peaceful picketing with conditioning that

injunction to require that REA comply with the Railway

Labor ‘ct. Brotherhood of R. Train. vs. Atlantic Coast

Line F. Co., 5 Cir. 1966, 362, F.2d 649, affirmed, 385 U.S.

20 (1966) ; Brotherhood of Locomotive Firemen & Engine-

men vs. Florida East Coast R. Co., 5 Cir. 1965, 346 F.2d

673; Brotherhood of Locomotive Eng. vs. Baltimore & O.

R. Co., 372 U.S. 284 (1963).

Here the District Judge believing the dispute to be

“minor” issued a permanent injunction after a so-called

“hearing on the merits” without even requiring that the

matter be processed to the administrative tribunal. The

only justification for an injunction in a labor dispute un-

der the Railway Labor Act, in light of the plain language

of Norris-LaGuardia, is to vindicate the processes of the

Railway Labor Act. Brotherhood of Railroad Trainmen vs.

Chicago River & I.R.C., 353 U.S. 30 (1957). The record

below is crystal clear that at the time of the hearing be-

fore the District Court on July 22, 1969, neither parties

to the contract, BRAC or REA, had submitted this case

to a Special Board of Adjustment. Clearly an injunction

cannot issue even in a minor dispute where it has

not been submitted to the administrative tribunal set up

under the Railway Labor Act. Manion vs. Kansas City

Terminal Ry. Co., 353 U.S. 927 (1957) ; Hilbert vs. Penn-

sylvania R. Co., 7 Cir. 1961, 290 F.2d 881, cert. den.,

368 U.S. 900 (1961). REA did offer to submit the con-

troversy to a Special Board of Adjustment, but the mere

offer is not sufficient to entitle one to an injunction. Itasca

Lodge 2029 vs. Railway Express Agency, 8 Cir. 1968, 391

F.2d 657.

4. Whether the employees have the right to engage

in a peaceful and orderly work stoppage in protest over

the carriers’ contracting out of scope work, without notice

or a prior opportunity to confer and negotiate, and is such

a work stoppage lawful until REA itself comes in com-

pliance with the Railway Labor Act.

Faced with the violations of REA, what then were

the Petitioners’ rights? Petitioners could go into a Fed-

eral Court and invoke its jurisdiction under Section 2,

weak

24

First, of the Railway Labor Act and compel conference

and negotiation. They could agree to arbitrate the dispute

whether it be deemed major or minor. But they were not

required to arbitrate. See Brotherhood of R. T. etc. vs.

Toledo P. & W. R.R., 321 U.S. 50 (1944) ; Textile Workers

Union vs. Lincoln Mills of Alabama, 353 U.S. 448, 450-

451 (1957); National Air Lines, Inc., vs. International

Assn. of M. & A. W., 5 Cir. 1969, 416 F.2d 998, 1102-1105.

Faced, however, with REA’s unilateral action, taken in

violation of the law, Petitioners submit that they not only

had the right to strike but that this right continued until

REA itself came in compliance with the Act, voluntarily

or otherwise, and employees could not be discharged for

“engaging in an illegal strike.” See United Ind. Wkrs. of

Sea. I. U. vs. Board of Tr. of Galveston Wh., 5 Cir. 1968,

400 F.2d 320, 332-334; Butte A. & Pac. Ry. vs. Brother-

hood of Locomotive Firemen, 9 Cir. 1959, 268 F.2d, cert.

den., 361 U.S. 864 (1959); Brotherhood of R. R. Train-

men vs. New York Cent. R.R. 6 Cir. 1957, 246 F.2d 114,

cert. den., 355 U.S. 877 (1957) ; National Air Lines, Inc.

vs. International Ass’n of M. & A. W., 5 Cir. 1969, 416 F.2d

998, 1031. If this is the case, then clearly the ruling of

the District Judge below enjoining the defendants but

leaving REA free of sanctions is erroneous. Brotherhood

of R. Train. vs. Atlantic Coast Line R. Co., supra; Brother-

hood of Locomotive Firemen & Enginemen vs. Florida East

Coast R. Co., supra; Brotherhood of Locomotive Eng. vs.

Baltimore & O. R. Co., supra; compare Manion vs. Kansas

City Terminal Co. 353 U.S. 927 (1957). The decisions be-

low should be reversed for this reason alone. Order of

Railroad Telegraphers vs. Chicago & N.W. R. Co., 362

U.S. 330 (1960).

25

an VII

CONCLUSION

For the reasons set forth above, the petition for a writ

of certiorari should be granted and on further hearing on

the merits the decision of the Court of Appeal, Fifth Cir-

cuit, reversed and the permanent injunction rendered by

the District Court below in its Order of December 8, 1969,

be vacated.

Respectfully submitted,

THOMAS W. McALILEY

ROBERT J. BECKHAM

NEAL P. RUTLEDGE

1010 Concord Building

66 West Flagler Street

Miami, Florida 33130

CAROLE A. GARDINER

921 City National Bank Building

25 West Flagler Street

Miami, Florida 33130

By

Attorneys for Petitioners

te eh ral

sn eee ee Ses tes 1 ‘ *

CI BBE nih Goal Epa a ie Si Ste ie, ee ag 1a '

26

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing

Petition for a Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit was mailed to Fisher &

Phillips, 26 Pryor Streei, N.E. Atlanta, Georgia 30303,

Attorneys for respondent, Railway Express Agency, In-

corporated, and Arthur M. Wisehart, General Counsel,

Railway Express Agency, Inc., 219 East 42nd Street, New

York, New York 10017 this day of April, 1971.

Of Counsel

APPENDIX

App. A-1

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 29256

RAILWAY EXPRESS AGENCY, INCORPORATED

Plaintiff-Appellee,

versus

BROTHERHOOD OF RAILWAY, AIRLINE AND

STEAMSHIP CLERKS, FREIGHT HANDLERS,

ET AL.,

Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Georgia

(January 25, 1971)

Before BELL, THORNBERRY, and CLARK,

Circuit Judges.

BELL, Circuit Judge: This appeal by defendant-local

unions presents questions arising from the entry of a per-

manent injunction against the further picketing of the

employer-Railway Express Agency (REA) by defendants.

The basic question is whether the dispute underlying the

suit is major or minor as those terms are used in the Rail-

way Labor Act, 45 USCA, §§ 151 et seq. With respect to

Pgh ey PQ, er |: LE WS eee Bae Ncw Ae SC

App. A-2

these questions, the international union from the begin-

ning has agreed with REA that the dispute is minor and

for resolution by a Special Board of Adjustment under

the Act. Other questions for consideration have to do with

the propriety and scope of the injunction aside from the

major-minor dichotomy. We affirm.

REA, a nationwide express agency, is a “carrier” en-

gaged in interstate commerce within the meaning of: the

Railway Labor Act. Appellants are loca] unions and their

officers, who are named as defendants both in their in-

dividual and official capacities and as representatives of

the classes of REA employees against whom this suit is

brought. They are affiliated with the Brotherhood of Rail-

way, Airline and Steamhip Clerks, Freight Handlers, Ex-

press and Station Employees (BRAC), an international

union which is the exclusive bargaining agent for REA

-employees.' The union contract covering the employees here

involved are those into which REA and BRAC entered.

There is no contract between REA and the appellant-local

unions.

The dispute between REA and appellants had its gen-

esis in a change in work assignment at the Atlanta Airport.

On June 1, 1969, REA by agreement with Delta Air Lines

contracted out to Delta a portion of REA’s air express

transfer work which REA’s employees had previously

handled at Atlanta Airport. This change was instituted

unilaterally without any advance notice to the union and

without giving the union any opportunity to confer or

negotiate with management.

IBRAC, an original defendant was dismissed by stipulation and is

not an appellant here.

App. A-3

REA maintains a field office or operation at the

Atlanta Airport as it does at most major airports for the

transfer of air express from one flight to another. Prior

to June 1, 1969, REA employees handled all transfers be-

tween flights through the REA facility, with the excep-

tion of “ramp transfers”—a procedure by which airline

employees handled very limited emergency transfers in-

volving medicines, blood and the like. In late May, REA

offered the airlines the opportunity to transfer routine

express between their own flights using their own em-

ployees if the flight was to leave the Atlanta Airport

within three hours. The purpose of the offer, according

to REA, was to decrease the long delay in express process-

ing which frequently occurred at the airport. Delta accept-

ed the offer and the change was implemented on June 1,

1969. The same offer was declined by the other airlines

at the Atlanta Airport.

There are three factual issues involved but, as will

be seen, their resolution is unnecessary to our decision.

One factual dispute is over the magnitude of the change

from the standpoint of REA employees. REA says that

the change transferred out fourteen per cent of the total

volume of the express transfer work and that no jobs had

been terminated due to the change. If all airlines accepted

REA’s proposal, an additional ten per cent of the air

express would be transferred out of the REA terminal.

Defendants say REA’s action transferred out between

thirty and forty per cent of the transfer work and that

one job had been abolished. It does appear that this amount

is all of the Delta express handled at the airport but,

nevertheless, we deem that defendants take the position

that something more is involved than what REA claims:

App. A-4

hence a factual dispute. Also, there is a dispute about the

precise nature of the change. REA says it farmed out to

Delta only intraline transfers that could arrive on one

Delta flight and go out on another within three hours.

Defendants say that Delta employees handle all or most

of its intraline transfers without regard to the three-hour

limitation.

A third factual dispute relates to the past history

of REA’s farming out of work as it did on June 1, and

is not really a dispute. REA claims to have contracted out

such work at other airports without notice to, or complaint

from, the union in the past. In support of this contention,

REA cites several instances in which transfer procedures

similar to those now followed by Delta have been imple-

mented at other airports throughout the country. Appel-

lants’ evidence indicates that REA has never before farm-

ed out such work in the five-state Gulf District without

prior union agreement or notice. REA does not dispute

this contention, but instead relies upon information con-

cerning airports outside of the Gulf District.

At any rate the Local REA employees were dissatis-

fied with the change and they engaged in a two-hour work

stoppage on June 6. This stoppage ended voluntarily. Be-

tween June 6 and June 16, union officials discussed the

matter with REA on several occasions, but no agreement:

could be reached. On June 16, picketing started in Atlanta,

and a work stoppage ensued. Similar action later occurred

at other southern cities. BRAC, (the international) view-

ed the dispute as minor and instructed the locals to dis-

continue the picketing, but it nevertheless continued. BRAC

also notified the locals that REA would expedite the han-

dling of the grievance by the Special Board of Adjustment

App. A-5

which had been created by the contract. No grievance was

filed by the locals, however, since they did not consider

the dispute to be minor.

On June 25, REA instituted an action for injunctive

relief in the district court, seeking to enjoin the picketing

and work stoppage. A temporary restraining order, issued

on that date, was continued idefinitely on July 22 follow-

ing a hearing. This hearing did not include testimony by

witnesses. The issues were narrowed by counsel and some

of the facts were stipulated a being undisputed. Affidavits.

and briefs were thereafter filed. It was agreed that the

major-minor issue would be determined as a question of

law on the undisputed facts if at all possible.

‘REA contends that the dispute arose out of the inter-

pretation or application of agreements between REA and

BRAC, and that it was a minor dispute within the mean-

ing of the Railway Labor Act. It was the position of the

local unions that the contracting or farming out of work

which is within the scope of an existing contract gives

rise to a major dispute under the Railway Labor Act, and

that such was the case here. In addition, since action of

such magnitude was taken by REA unilaterally, the locals

were entitled to an injunction restoring the status quo ante.

In any event, the locals asserted, since REA failed to dis-

cuss the matter in advance of acting, even if a minor dis-

pute, the status quo ante should be restored. On December

8, 1969, the previously issued order was continued as a

permanent injunction, “to protect the jurisdiction of the

Special Adjustment Board which has jurisdiction of this

dispute.”

bs ah TAS Lit etx ie AAI Maa tee Ses S tes eo oot

App. A-6

I

We turn first to the issue whether the dispute between

the parties was “major” or “minor” in the parlance of

the Railway Labor Act. In Brotherhood of Locomotive

Firemen and Engineers vs. Florida East Coast Ry. Co., 5

Cir., 1965, 346 F.2d 673, we said:

“Under the Railway Labor Act, minor disputes

involve grievances or questions of interpretation -

of an existing collective bargaining contract;

major disputes arise from efforts to change

working conditions through the making of a new

agreement.” 346 F.2d at 676.

In making that statement, we, as was the case with

the district court here, relied on Elgin, Joliet & Eastern

Ry. Co. vs. Burley, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89

L.Ed. 1886, where the Supreme Court set out the rationale

of the Act as it relates to the handling of disputes between

management and labor. Major disputes must be resolved

under the procedures set forth in § 6 of the Act, 46 USCA,

§ 156. There must be notices of intended changes, negotia-

tions, possible mediation by the National Mediation Board.

All of these procedures must be exhausted before the em-

ployer may impiement the intended changes and before

the union is free to strike. Minor disputes, on the other

hand, are for arbitration before the National Railroad

Adjustment Board or before a Special Adjustment Board

established by the parties.? The Act provides for compul-

2Section 2, Sixth of the Act, 45 USCA, § 152, is directed to minor

disputes in the following language:

“Sixth. In case of a dispute . . . arising out of grievances

or out of the interpretation or application of agreements con-

cerning rates of pay, rules, or working conditions . , .”

App. A-7

sory arbitratio. of all minor disputes and prohibits all

strikes over minor disputes. Brotherhood of Railway Train-

men vs. Chicago River & Ind. Ry Co., 1957, 353 U.S. 30,

77 S.Ct. 635, 1 L.Ed. 2d 622.

The dispute here narrows as follows. Appellants con-

tend that REA contracted out “scope work” in violation

of the agreement between REA and BRAC. The argu-

ment is that the employees of REA have always perform-

ed the air express transfer work at the Atlanta Airport.

Thus, although not explicitly mentioned in the agreement,

it is within the scope of the agreement and may not be

transferred to others. To support this contention, ap-

pellants rely on past practices at the Atlanta Airport. The

difficulty is that there is no mention whatever of any par-

ticular work assignment in the agreement.

REA, on the other hand, contends that it did not

violate the scope clause of the agreement by unilateral-

ly permitting Delta to make certain ramp transfers and

thus did not violate the contract. REA relies primarily on

past practices at other airports to support its interpreta-

tion of the scope clause. These practices were that REA

contracted with airlines to make ramp transfers of freight

on many occasions at these other airports although never

before at the Atlanta Airport. The mode of transferring

express, whether by REA or the airlines, was a continuing

subject of negotiation between REA and the airlines in

the interest of rendering efficient service to the public.

REA also relies on the management prerogatives clause,

which preserves “the right of management to determine

methods of operation and the utilization of the working

forces... .”

App. A-8

We are not impressed by the argument that the scope

of the agreement must be implied from past practices at

the Atlanta Airport rather than nationwide. The agree-

ment here is a nationwide agreement, covering employees

in an industry of peculiarly national character. Therefore,

the implied terms of the agreement must be found by

looking to the work traditionally performed by REA em-

ployees on a national rather than on a local level. It is un-

disputed that the pact practices on the national level: has

been for management to make air express transfer changes

of the type here involved unilaterally.

The dispute in reality is over the breadth of manage-

ment’s prerogative. There are no provisions in the agree-

ment which expressly reserve the work in question to REA

employees. Likewise, there is no express provision allow-

ing management to transfer the work unilaterally. How-

ever, the agreement does expressly reserve “the right of

management to determine methods of operation and the

Wilization of the working forces. .. .” Moreover, there is

an undisputed history of such unilateral transfers of work

with no apparent objection from the union. It may be con-

cluded, as the district court did conclude, that this state

of facts gave REA at least the arguable right to make the

transfer to Delta. Whether it actually has such a right

must be determined by the Special Adjustment Board.

We also conclude, for the purpose of defining the

extent of which a federal court may intervene in a rail-

way labor dispute and enjoin a strike, that the dispute

here is a minor one involving the interpretation of exist-

ing agreements. This position receives substantial support

from the case of Rutland Railway Corp. vs. Bro. of Loco-

motive Engineers, 307 F.2d 21 (2d Cir. 1962), cert. denied,

App. A-9

1963, 372 U.S. 954, 83 S. Ct. 949, 9 L.E.2d 978, which in-

volved management’s prerogative to unilaterally reschedule

train runs where there was to be a resultant loss in employ-

ment. The court there determined that the dispute fell into

the minor category although the agreement between the

, parties contained no express provision covering the sub-

ject. See also Missouri-K.T, RR vs. Bro. of Locomotive

Engineers, 5 Cir., 1959, 266 F.2d 335, rev. on other grounds,

1960, 363 U.S. 528, 80 S.Ct. 1326, 4 L.Ed.2d 1379: In the

Matter of Hudson & M. R. R., S.D. N.Y., 1959, 172 F.

Supp. 329, aff’d sub nom. Stichman vs. General Grievance

Committee, 2 Cir., 1959, 267 F.2d 941.

Also, it is significant that BRAC (the international)

agrees that the dispute is minor. BRAC President Dennis

wired appellants stating that the dispute was not a strike-

able one, that REA had agreed to expedite the matter to

the Special Board of Adjustment, and that the strikers

should immediately return to work. This position buttresses

the decision that the dispute is minor when considered in

light of the fact that BRAC is the certified statutor, bar-

gaining agent.

We are not inclined to view this matter as analogous

to cases where the bargaining unit is eliminated in whole

or substantial part. Cf. Fibreboard Paper Prod. Co. vs.

NLRB, 1964, 379 U.S. 208, 85 S.Ct. 398 13 L.Ed.2d 233 ;

United Indus. Wkrs. of Seafarers, etc. vs. Bd. of Trustees

of Galveston Wharves, 5 Cir., 1965, 351 F.2d 183.

Since the dispute was minor, it follows from the

Chicago River case, supra, that the district court had the

power to enjoin appellants.

= oe ae aa BE eich RS EIA LEI IAS. BRK LB LA ORIN: ails

App. A-10

II.

The next question is whether, considering the cir-

cumstances, REA was entitled to an injunction. Appellants

contend that REA did not comply with the requirements of

§ 8 of the Norris-LaGuardia Act. 29 USCA, § 108? This

“clean hands” section provides that no injunction shall

be granted to any complainant who has failed to comply

with any obligation imposed by law or who has failed

to make every reasonable effort to settle the dispute by

negotiation or otherwise.

It is undisputed that REA did not confer with the

union before instituting the change in dispute. Appel-

lants’ position is that a strike pursuant to a minor dis-

pute (while not conceding that the dispute is minor) is

not enjoinable where the employer failed to confer with

employees prior to instituting the change from which the

dispute arises. REA argues that the clean hands provi-

sion does not bar injunctive relief as long as they con-

ferred with the union before seeking an injunction, not

necessarily before instituting the change. Since both parties

rely on Rutland, supra, it is necessary to examine that

decision.

— ——$ —\r

EN oa lcs Le Recon eA

329 USCA, § 108:

“No restraining order or injunctive relief shall be granted

to any complainant who has failed to comply with any obliga-

tion imposed by law which is involved in the labor dispute in

question, or who has failed to make every reasonable effort to

settle such dispute either by negotiation or with the aid of any

available governmental machinery of mediation or voluntary

arbitration.”

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App. A-11

In Rutland, the Second Circuit carefully examined

the duty to confer imposed on disputing parties by § 8 of

Norris-LaGuardia and by § 2 First, Second and Sixth of

the Railway Labor Act. Section 2 First and Second, place

a duty on both parties to the dispute to make every rea-

sonable effort to settle the matter, major or minor, and

as part of their efforts, to coufer over their difference-.

Section 2 Sixth, promulgates a procedure for calling a

conference after request to discuss a minor dispute. All

of this is to occur before submission of the dispute to the

Railroad Adjustment Board Section 8 of Norris-LaGuardia

was enacted subsequent to the Railway Labor Act, and

provides that an injunction cannot be obtained by one who

has not complied with any obligation imposed by law or

has not made every reasonable effort to settle the dispute

by negotiation. The court in Rutland held that the duty

to negotiate, in the context of a minor dispute does not

mean that the employer must negotiate with the union

prior to instituting changes in train runs. Whether there

should be full scale negotiation is for the Adjustment

Board to decide. The duty on the employer was analyzed

as follows:

“But in minor disputes involving the scope of

the managerial prerogative it must be that Sec-

tion 2 First, Second and Sixth of the Railway

Labor Act together with the Norris-LaGuardia

Act impose some lesser duty on a railroad which

seeks injunctive relief... . Therefore, we hold

that the relevant sections . . . impose a duty upon

the railroad, short of negotiation, to take some

reasonable steps toward dispute settlement be-

fore it can obtain an anti-strike injunction. These

lesser efforts are comprehended within the con-

App. A-12

cept of “conferring.” Rutland Railway Corp. vs.

Bro. of Locomotive Engineers, 307 F.2d 21, 40

(2d Cir. 1962).

The court went on to define conferring as basically

a getting together with a sincere effort to resolve their

differences, with each side explaining its position and

listening to the contentions of the other side. Since the dis-

trict below in Rutland did not make a finding that the

railroad made reasonable efforts to settle the dispute in

conference, the injunction was dissolved and the case re-

manded to determine whether the employer had conferred.

In sum, Rutland makes it clear that the requirement

to attempt to settle disputes is not a requirement to bar-

gain with the union before making changes which lead to

a minor dispute. Like Rutland, the instant case involves

a minor dispute over the scope of the managerial preroga-

tive, in which management has the duty to confer with

the union over the dispute before it is entitled to an anti-

strike injunction. Unlike the Rutland case, however, the

district court here made sufficient findings to demon-

strate good faith confering. The record amply supports

this view. There was no failure on the part of REA to

comply with the statutory prerequisites to an anti-strike

injunction.

III.

Appellants also contend that any injunctive relief af-

forded REA should be conditioned upon restoring the status

quo ante. In Missouri-K.-T. R.R. v. Bro. of Locomotive

Engineers, 1960, 363 U.S. 525, 80 S.Ct. 13826, 4 L.Ed.2d

1379, the Supreme Court held that in a minor dispute situa-

App. A-13

tion, while the statutes say nothing about restoration of the

Status quo ante, such status quo may be maintained by

freezing the conditions sought to be changed by the carrier

or by allowing the change but requiring the employer to

continue paying the affected employees. Such relief by

way of conditions is addressed to the district court’s equita-

ble discretion, ‘the exercise of which is reviewable only

for abuse of that discretion.

In the instant case, the district court in its final order

did not grant, or even mention, appellants’ request for a

restoration of the status quo ante. At the J uly 22 hear-

ing, however, and in a July 25 interim order, the district

court made it clear that its discretionary powers in this

area were understood and that it was prepared to exercise

it if any subsequent change had a substantial adverse

affect upon the employees. We find no abuse of discre-

tion in the district court’s declining to condition issuance

of an injunction upon restoration of the status quo ante.

See generally United Ind. Wkrs of Sea. I.U. v. Bd. of

Trustees of Galveston Wharves, 5 Cir., 1968, 400 F.2d 320.

IV.

This leaves one final question for decision: whether

the district court complied with statutory procedural pre-

requisites to granting the injunction:

On July 22, 1969 a hearing was held to determine

whether a preliminary injunction should be granted. As

noted, no witnesses were heard, but the parties stated their

positions and stipulated as to some undisputed facts. Briefs

and affidavits were to be and were filed later. There were

Se nA Antal Su NREL. |

App. A-14

remaining factual disputes after the affidavits were filed.

Appellants assert that such a procedure was a patent

violation of § 7 of the Norris-LaGuardia Act, 29 USCA,

§ 107, which provides:

“No court of the United States shall have jurisdic-

tion to issue a temporary or permanent injunc-

tion in any case involving or growing out of a

labor dispute . . . except after hearing the testi- .

mony of witnesses in open court (with oppor-

tunity for cross-examination) in support of the

allegations of a complaint made under oath, and

testimony in opposition thereto, if offered... .”

REA’s position is one, that appellants waived the taking

of oral testimony, and two, that the resolution of all factual

disputes in favor of the unions would not indicate a dif-

ferent result on the injunction question.

In Missouri-K.-T. R.R. v. Bro. of Locomotive En-

gineers, 5 Cir., 1959, supra, this court was faced with a

similar problem, except that there the district court did

not make findings of fact as required by § 9 of Norris-

LaGuardia, 29 USCA, § 109. The court held, however,

that since the material facts were admitted (i.e. the strike,

the matters in controversy though not their legal effect,

and the submission of the controversies to the appropriate

Boards) , the specific provisions of the Railway Labor Act

took precedence over the general provision of Norris-La

Guardia. Therefore, strict compliance with § 7 was not

required.

App. A-15

Here the crucial facts were stipulated by counsel.

There was no dispute as to the picketing, what it was

about, or the applicable agreements. The remaining factual

disputes concern the effect of the dispute on the number

of jobs and the precise nature of the change as imple-

mented. The resolution of both these disputes in favor of

the appellants would not change the nature of the con-

troversy — a non-strikeable minor dispute. Added to

the above is the fact that appellants appear to have waived

oral testimony by witnesses if the only issue remaining

was a legal one in light of the undisputed facts. We hold

this to be the case. There was no violation of § 7 of the

Norris-LaGuardia under these limited circumstances.

AFFIRMED.

Sa atin! PELE Bata Sea aa

App. B-1

APPENDIX B

ORDER

Filed Dee. 8, 1969

This action for injunctive relief was instituted on

June 25, 1969, by Plaintiff Railway Express Agency

(REA) to enjoin the allegedly unlawful picketing and

work stoppage in which defendants engaged after REA,

without prior notice to defendants, permitted Delta Air

Lines to begin making certain Atlanta airport intraline

express transfers which formerly had been made by REA’s

employees. A temporary restraining order issued on June

25th has twice been continued in force by consent of the

parties — the last such time being July 22, 1969, when it

was continued indefinitely following hearing on the merits.

On September 22nd an order was issued granting the

joint motion by REA and Defendants Brotherhood of

Railway, Airline, and Steamship Clerks, Freight Handlers,

Express and Station Employees (BRAC), and Paul J.

Masson, to dismiss without prejudice as to those two

defendants. The case is now before the court for considera-

tion of REA’s motion for an injunction to preserve the

jurisdiction [895] of the Specia! Adjustment Board which

plaintiff contends has jurisdiction over this dispute under

the Railway Labor Act, upon defendants’ counterclaim for

an injunction to prevent REA from continuing to turn

over to Delta Air Lines the air-freight transfer work in

question, and upon REA’s motion to amend the complaint

in order to conform the caption of that pleading to the

class action allegations contained herein. The latter motion

is a technical one to which defendants have not objected

NEARER Deca We le tibsS Bel Md okt Re URE Ve

ee en ee ee

7

App. B-2

and which is clearly proper under the liberal amendment

provisions of the Federal Rules. Accordingly, it will be

granted.

Plaintiff REA, a nationwide express agency, is a

“carrier” engaged in interstate commerce within the

meaning of the Railway Labor Act (45 U.S.C. § 151, et

seq.). Defendants are local unions and their officers, who

are named as defendants both in their individual .and

official capacities and as representatives of the classes

of REA employees against whom this suit is brought.

Plaintiff alleges, and the court finds as a fact, that BRAC

(International) is the exclusive bargaining agent for REA

employees and has been certified as such by the National

Mediation Board. The only union contracts covering these

employees are those into which REA and BRAC have

entered; there are no contracts between REA and any

of the district or local union defendants involved in this

case. It follows, therefore, that no district or local union

has any statutory or contractual right to represent REA

employees except as an agent of BRAC.'

The record shows that in April, 1969, kA and rep-

resentatives of all air lines operating at the Atlanta airport

met, at the latter’s request, to discuss ways of decreasing

the long delay in express processing which frequently

1The Court is not unmindful of the fact that when BRAC entered

into this bargaining agreement it did so as the bargaining agent of

REA’s employees. And thus each employee does have a very real interest

in the provisions of that contract. However, individual employees are

not actual parties to the contract. The Fifth Circuit recognized this dis-

tinction in Illinois Central R.R. vs. Moore, 112 F.2d 959 (5th Cir.

1940), rev’d. on other grounds, 312 U.S. 630, where it said that although

the collective agreement contains a contract between union and carrier it

is not itself a contract of employment but rather is only a basis agreed

upon as mutually satisfactory for making contracts of employment.

App. B-3

occurred at the airport. A a result of that meeting, on

May 21st REA offered the air lines the opportunity to

transfer express between their own flights if certain

specified conditions were met.? Delta accepted the offer

and the new procedure was implemented on June 1, 1969.

The parties have stipulated that prior to June 1st

the unions had not been contacted about the Delta express

transfers but that on June 6th a group of union people met

with REA’s operations manager to discuss the situation,

and on June 11th the general chairman of the Gulf District

discussed the matter with REA’s vice president, Mr. L. R.

Howard. It is further stipulated that the union has not

filed a grievance under the minor dispute provisions of

the Railway Labor Act.

Defendants have taken the position that the work

which REA has turned over to Delta is, under the terms

of the collective bargaining agreement, work which only

REA employees can do. It is therefore “scope work”,

defendants contend, and is a mandatory subject of bar-

gaining. According to that view, the present dispute [897]

is a major one’ in that by turning freight transfer work

over to Delta, REA has attempted to change the terms of

There is a dispute as to the conditions imposed but that issue

cannot and need not be decided by this court.

’Major disputes are those concerned with the formation of collective

bargaining agreements or with efforts to secure such agreements; they

look to the acquisition of rights for the future rather than to rights

which vested in the past. Minor — on the other hand, arise where

there is an existing agreement and there has been no effort to bring

about a formal change in terms or to create a new agreement, but the

dispute relates either to the meaning or proper application of a par-

ticular provision with reference to a specific situation or to an omitted

case. Elgin, Joliet & Eastern Ry. vs. Burley, 325 U.S. 711 (1945).

App. B-4

the. bargaining agreement without following the proce-

dures required by the Railway Labor Act.* Defendants’

resort to self-help and the resultant work stoppage were

therefore lawful, it is alleged, and protected from a fed-

eral court injunction by the provisions of the Norris-

LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C. §§ 101-115.

_ It is undisputed that the work covered by the bargain-

ing agreement is not expressly set forth in the agreement

and that the question as to whether the freight transfer

work which was turned over to Delta is “scope work” will

have to be determined by reference to past practices.

Defendants contend that since REA employees at the

Atlanta airport have been performing the work in question

for more than 20 years it is by implication scope work

under the collective bargaining agreement. REA, on the

other hand, contends that the bargaining unit is not local

in nature and that not local past practices but national

past practices must be used to determine what is included

as scope work under the terms of the collective bargaining

agreement between REA and BRAC—an agreement

which [898) covers REA employees on a nationwide basis.

Under REA’s view, decisions as to intraline freight trans-

fer procedures lie within the area of management preroga-

tive specifically conferred upon REA by the agreement.

And in support of that contention REA cites numerous

instances in which intraline transfer procedures similar

to those now followed by Delta at the Atlanta airport have

been used at other airports throughout the country.

445 U.S.C. § 151, et seq.; see also Elgin, Joliet & Eastern Ry. vs.

Burley, supra n.2; Brotherhood of R.R. Trainmen vs. Jacksonville

Terminal Co., 394 US. 369, 377-78 (1969).

App. B-5

The national character of labor relations in the rail-

road industry was noted by the United States Supreme

Court in California vs. Taylor, 353 U.S. 553 (1957). That

case dealt with a question which does not arise in this

case, of course (i.e., whether the Railway Labor Act

applies to state-owned railroads), but much of the Court’s

reasoning appears to be generally applicable to all cases

arising under the Railway Labor Act. The Court in Taylor

emphasized that agreements in the railroad industry uni-

formly are negotiated for, and regulate rates of pay and

working conditions of, employees in an entire railroad

system.’ With this in mind, it clearly cannot be said that

there is no merit to REA’s contention that the implied

terms of the bargaining agreement in the case must be

found by looking to the work traditionally performed by

REA employees on a national rather than merely on a

local level.

The record shows that in June, 1969, there were at

least two conferences between REA officials and repre-

sentatives of the disgruntled [899] employees. Further-

more, the court notes that both parties to the collective

bargaining agreement have taken the position that the dis-

pute will be controlled by interpretation of the bargaining

agreement and that the dispute should be presented to

the Special Adjustment Board. Although defendants take

issue with that view, they nevertheless rely upon their

own interpretation of the contract to show that REA has

attempted unilaterally to change the agreement.

‘The Court quoted the House Committee on Interstate and Forei

Commerce, as follows: “Railroads and airlines are direct Sniaeraientall-

ties of interstate commerce; the Railway Labor Act requires collective

bargaining on a system-wide basis; agreements are uniformly negotiated

for an entire railroad system and regulate the rates of pay, rules of

working conditions of employees in many States. H.R.Rep.No. 2811,

Bist Cong., 2d Sess. 5.” California vs. Taylor, 353 U.S. 553, n.15 at

567 (1957).

App. B-6

A dispute of this kind could be considered a major

one only if the existing agreement contains express or

implied provisions inconsistent with REA’s proposals. “It

is a minor dispute if the . . . agreement contains a clearly

governing provision or if what the railroad seeks to do is

supported by customary and ordinary interpretation of

the language of the agreements,” Rutland Ry. Corp. vs.

Brotherhood of Locomotive Engineers, 307 F.2d 21 (2d

Cir. 1962). Since the collective bargaining agreement in

question might reasonably be interpreted as plaintiff

contends, the court finds that the primary issue in the

case is one of contract interpretation. The dispute there-

fore is a minor one and the issue must be presented to the

Special Adjustment Board created by the parties to the

collective bargaining agreement. Rutland Ry. Corp. vs.

Brotherhood of Locomotive Engineers, supra at 36.

Accordingly, REA’s motion to amend the complaint is

GRANTED and temporary restraining order previously

issued by this court shall be continued as a permanent

injunction to protect the jurisdiction of the Special Ad-

justment Board which has jurisdiction of this dispute.

IT IS SO ORDERED.

This 8th day of December, 1969.

/s/ Newell Edenfield

NEWELL EDENFIELD

United States District Judge

App. C-1

APPENDIX C

STATUTORY PROVISIONS INVOLVED

The statutory provisions principally involved are Sec-

tion 2, First, of the Railway Labor Act, 45 U.S.C. § 152,

First, and §§ 7, 8, and 9 of the Norris-LaGuardia Act, 29

U.S.C. §§ 107, 108 and 109, which provides as follows:

A. Section 2, First, of the Railway Labor Act, 45

U.S.C. § 152, First, is as follows:

“First. It shall be the duty of all carriers, their

officers, agents, and employees to exert every

reasonable effort to make and maintain agree-

ments concerning rates of pay, rules, and working

conditions, and to settle all disputes, whether

arising out of the application of such agreements

or otherwise, in order to avoid any interruption

to commerce or to the operation of any carrier

growing out of any dispute between the carrier

and the employees thereof.”

B. Sections 7, 8 and 9 of the Norris-LaGuardia Act,

29 U.S.C. §§ 107, 108 and 109, are as follows:

“Sec. 7. No court of the United States shall

have jurisdiction to issue a temporary or per-

manent injunction in any case involving or grow-

ing out of a labor dispute, as herein defined, ex-

cept after hearing the testimony of witnesses in

open court (with opportunity for cross-examina-

tion) in support of the allegations of a complaint

App. C-2

made under oath, and testimony in opposition

thereto, if offered, and except after findings of

fact by the court, to the effect—

“(a) That unlawful acts have been threatened

and will be committed unless restrained or have

been committed and will be continued unless re-

strained, but no injunction or temporary restrain-

ing order shall be issued on account of any threat

or unlawful act excepting against the person or

persons, association, or organization making the

threat or committing the unlawful act or actual-

ly authorizing or ratifying the same after actual

knowledge thereof;

“(b) That substantial and irreparable injury

to complainant’s property will follow;

“(c) That as to each item of relief granted

greater injury will be inflicted upon complaint

by the denial of relief than will be inflicted upon

defendants by the granting of relief;

“(d) That complainant has no adequate remedy

at law; and

“(e) That the public officers charged with the

duty to protect complainant’s property are un-

able or unwilling to furnish adequate protec-

tion.

“Such hearing shall be held after due and per-

sonal notice thereof has been given, in such

manner as the court shall direct, to all known

App. C-3

persons against whom relief is sought, and also

to the chief of those public officials of the coun-

ty and city within which the unlawful acts have

been threatened or committed charged with the

duty to. protect complainant’s property: Pro-

vided, however, That if a complainant shall also

allege that, unless a temporary restraining order

shall be issued without notice, a substantial and

irreparable injury to complainant’s property will

be unavoidable, such a temporary restraining

order may be issued upon testimony under oath,

sufficient, if sustained, to justify the court in is-

suing a temporary injunction upon a hearing

after notice. Such a temporary restraining order

shall be effective for no longer than five days and

shall become void at the expiration of said five

days. No temporary restraining order or tem-

porary injunction shall be issued except on condi-

tion that complainant shall first file an under-

taking with adequate security in an amount to be

fixed by the court sufficient to recompense those

enjoined for any loss, expense, or damage caused

by the improvident or erroneous issuance of such

order or injunction, including all reasonable costs

(together with a reasonable attorney’s fee) and

expense of defense against the order or against

the granting of any injunctive relief sought in

the same proceeding and subsequently denied by

the court.

“The undertaking herein mentioned shall be un-

derstood to signify an agreement entered into

by the complainant aud the surety upon which

a decree may be rendered in the same suit or pro-

App. C-4

ceeding against said complainant and surety,

upon a hearing to assess damages of which

hearing complainant and surety shall have rea-

sonable notice, the said complainant and surety

submitted themselves to the jurisdiction of the

court for that purpose. But nothing herein con-

tained shall deprive any party having a claim

or cause of action under or upon such undertaking

from electing to pursue his ordinary remedy by.

suit at law or in equity.

“Sec.8 No restraining order or injunctive relief

shall be granted to any complainant who has

failed to comply with any obligation imposed by

law which is involved in the labor dispute in ques-

tion, or who has failed to make every reasonable

effort to settle such dispute either by negotiation

or with the aid of any available governmental

machinery of mediation or voluntary arbitration.

“Sec. 9. No restraining order or temporary or

permanent injunction shall be granted in a case

involving or growing out of a labor dispute, ex-

cept on the basis of findings of fact made and

filed by the court in the record of the case prior

to the issuance of such restraining order or in-

junction; and every restraining order or injunc-

tion granted in a case involving or growing out

of a labor dispute shall include a prohibition of

such specific act or acts as may be expressly

complained of in the bill of complaint or petition

filed in such case and shall be expressly included

in said findings of fact made and filed by the

court as provided herein.

App. C-5

“Sec. 10. Whenever any court of the United

States shall issue or deny any temporary injunc-

tion in a case involving or growing out of a labor

dispute, the court shall upon the request of any

party to the proceedings and on his filing the

usual bond for costs, forthwith certify as in

ordinary cases the record of the case to the court

of appeals for its review. Upon the filing of such

record in the court of appeals, the appeal shall

be heard and the temporary injunctive order af-

firmed, modified, or set aside with the greatest

possible expedition, giving the proceedings prece-

dence over all other matters except matters of the

same character ”

[Sections 11 & 12 have been repealed, c.6465,

§ 21, 62 Stat. 862 (1948) ].