# Petition for aWrit of Certiorari — Brotherhood of Railway, Airline & Steamship Clerks v. Railway Express Agency, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1165%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for aWrit of Certiorari - **Published:** January 1, 1971 - **Citation:** 403 U.S. 919 ## Text RS on ml i idl MATEY ARON ERR eh ks th ein RSE SIRI al ee - ne oR HR > SUP U.S. FILE in the ae Supreme Court.” RT SEAVER, CLERK of the 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 Vil 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 : * 3 7 : | 5 :. 4 3 a q Sie ORE ici oxo PT RE EES 5 MBA ne i 3 ; 3 4 e 4 ; F 7 % 4 ] 4 2 I 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 oT TET SSAA ORE eT ney ay LVF RIE TT 8 NEEM TEN PoP ee 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 Kulbchtie gt 61 ela 2 ent RR rtd pete Anata el RETA Fa 2s OPW aia Teed RS WEAPONS ILA AY RAIS Be 8 Dive a MR RAE AR Shc OI PS ae a Te en at 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.” 2 g a q si of v. y a & - 5 x i 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) ]. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1165%3A1. Public record. Not legal advice.