Schnackenberg, Swygert, and Cummings, Circuit Judges. Schnackenberg, C. J., concurring.
This is an appeal by the Brotherhood of Railroad Trainmen from an order of the district court entered on October 30, 1967. (The order was entered pursuant to the district court's memorandum opinion of September 15, 1967.) The action was commenced when the Illinois Central Railroad Company filed a complaint seeking to enjoin a strike threatened by the Brotherhood. The purpose of the proposed strike was to prevent the railroad from eliminating certain crewmen from a number of passenger trains. The Brotherhood filed a counterclaim, seeking a mandatory injunction to require the railroad to restore certain previously eliminated crewmen and to prohibit the railroad from undertaking further crew eliminations on other trains. Subsequently, the railroad filed a motion asking the court to permit both parties to have established a special board of adjustment, pursuant to 45 U.S.C. § 153 (Second), to resolve the dispute. A motion by the Brotherhood seeking dismissal of the railroad's action and for summary judgment on its counterclaim was also filed.
The district court granted the railroad's motion that a special board of adjustment be convened, ordered the railroad to maintain the "'now existing status quo' relative to employment of certain flagmen and baggagemen . . . as said employment existed on April 4, 1967" (the day the complaint was filed), and enjoined the Brotherhood from striking pending determination and disposition by the special board of adjustment. In addition the district court denied the Brotherhood's motion for summary judgment.
We affirm the actions taken by the district court in its order of October 30, 1967, and we adopt as the opinion of this court the memorandum opinion of the district court entered on September 15, 1967, contained in the appendix to this opinion.
One issue not fully treated in the memorandum opinion of the district court and argued on appeal before this court concerns the propriety of the district court's injunction of the Brotherhood's threatened strike in view of Section 8 of the Norris-LaGuardia Act, 29 U.S.C. § 108.*fn1
We believe that the injunction was properly issued for the following reasons. First, although the Brotherhood argues that the railroad came into court with unclean hands due to its dismissal of certain employees after the Brotherhood had served the railroad with a section 6 notice in July 1965 relating to crew consist,*fn2 the railroad's actions in that regard were consistent with its view that such dismissals were authorized by established practice. Second, even if the Brotherhood were correct in contending that the railroad lacked clean hands, Section 8 of the Norris-LaGuardia Act would not of necessity preclude the issuance of an injunction against a strike by the Brotherhood. This conclusion is supported by the reasoning of the Court of Appeals for the District of Columbia in Brotherhood of Railroad Trainmen v. Akron & Barberton Belt Railroad, 385 F.2d 581, 614 (D.C. Cir. 1967), cert. denied, 390 U.S. 923, 88 S. Ct. 852, 19 L. Ed. 2d 983 (1968), where the court said:
It may be that in a particular case the District Court might conclude that the imperatives of the Railway Labor Act override Section 8 -- a statutory focusing so to speak of an equity approach whereby lack of clean hands may be overcome by a balancing of interests, particularly where it is the public interest involved. In a particular case the District Court might conclude that the question of the applicability of Section 8 was doubtful, would require time to explore, and that the restraining order should issue forthwith to avoid jeopardizing the Railway Labor Act. Such approaches would recognize that Section 8 of the Norris-LaGuardia Act has some applicability, and is a legislative instruction that weighs heavier in the scale than the clean hands doctrine taken merely as a general equity maxim, yet is overborne by requirements of the Railway Labor Act.
While this appeal was pending, Public Law Board Number 79, established pursuant to the order of the district court, rendered its findings and award. That award sustained the position taken by the Brotherhood in the district court. We assume that the district court will enter an appropriate "status quo" order reflecting the award of Public Law Board Number 79.
The judgment of the district court is affirmed, and the case is remanded for further proceedings consistent with this opinion.
Plaintiff filed this action pursuant to 28 U.S.C. § 1337 and 45 U.S.C. § 151 et seq., seeking an injunction against a threatened strike by the defendant. Briefly, the facts presented at a preliminary hearing for a temporary restraining order disclose that plaintiff (I. C.) notified defendant (BRT) on March 30, 1967, of its plan to eliminate a number of trainmen's positions on certain through passenger trains effective April 5, 1967. Upon learning of defendant's threatened strike in response to its proposal, I.C. brought the instant action. Defendant has filed a counterclaim seeking to enjoin plaintiff from executing the proposed eliminations and to recover positions lost through past unilateral eliminations allegedly made in violation of the BRT's rights. Also before us is defendant's motion for summary judgment.
Simply put, the dispute before this court is whether the I.C. may unilaterally eliminate the positions of certain trainmen on specific through passenger trains. This is what is known in railway labor parlance as a "crew consist" issue.
To place the instant controversy in proper perspective, we must first discuss the procedures prescribed under the Railway Labor Act, 45 U.S.C. § 151, et seq., for the treatment of disputes between carriers and unions, and the history of the controversy which is the background of the instant action. The Railway Labor Act was first passed in 1926 in an attempt to lessen the danger of commerce-crippling strikes. Under the Act, two procedures were developed to handle disputes arising between carriers and unions. "Minor" disputes were made subject first to negotiation, and if that failed, to compulsory binding arbitration by the National Railroad Adjustment Board (NRAB) or, in the alternative, by a special board of adjustment. "Major" disputes were made subject to negotiation, mediation by the National Mediation Board (NMB), voluntary arbitration, conciliation attempts by the President, and finally, if no agreement was reached, to self-help by the parties. "Minor" disputes have been defined by statute and case law as disputes arising out of the application or interpretation of existing agreements in relation to the attempted exercise of allegedly existing rights. Elgin, Joliet & Eastern R. Co. v. Burley, 325 U.S. 711, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945). Since the boundaries of a "minor" dispute are theoretically narrow ...