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03/31/71 the Delaware and Hudson v. United Transportation


March 31, 1971




Wright, Leventhal and Wilkey, Circuit Judges.


Certiorari Denied, June 7, 1971, 403 U.S. 911, 91 S. Ct. 2209, 29 L. Ed. 2d 689.



This action was begun in 1970 by the plaintiffs, some 170 carriers comprising most of the nation's railroads ("carriers"), against four railway labor organizations, after their current national wage and rules dispute had led to a bargaining impasse. The dispute was settled in 1971 as to the three non-operating unions. *fn1 Following exhaustion of all the governmental processes for resolution of major disputes contemplated by the Railway Labor Act (Act), the carriers filed a supplemental complaint against the United Transportation Union (hereafter Union, or UTU). *fn2 They sought an injunction against the Union's conducting any selective strike against a few, or some, or less than all the carriers. The District Court granted the carriers' motion and issued a preliminary injunction enjoining the Union from calling any selective strikes against the Burlington Northern, Inc. or Seaboard Coast Line Railroad, or against fewer than all the plaintiff carriers. We conclude that the legal premise underlying the District Court's action was in error. We reverse the order granting the preliminary injunction. On remand the District Court will maintain continuing jurisdiction of the cause to consider any issues, and requests for relief, that may develop as to the legality of actions of the Union or the carriers in the conduct of strikes and countermeasures. I. History of the Disputes and Threatened Strike

On October 20, 1969, *fn3 the Union served each of the carriers with identical notices pursuant to Section 6 of the Act, 45 U.S.C. § 156, proposing changes in existing national agreements relating to pay. On November 7, the carriers served the Union with a notice containing counter-proposals as to work rules to be bargained about concurrently. On November 20, the Union served notices proposing various wage and fringe benefit adjustments. The Union's notices requested each of the carriers served to advise each carrier that "it is requested that you join with other railroad companies in authorizing a national conference committee to represent you in dealing with the subject."

The parties followed established practice and authorized the dispute to be handled by their national bargaining representatives, which in the case of the carriers meant the National Railway Labor Conference (comprised of three regional Carriers' Conference committees),4 which represents over 90% of the nation's Class I line-haul rail carriers and terminal railroads.

Multi-carrier bargaining by the national representatives of the carriers began March 17, 1970, and continued from time to time thereafter until April 15, 1970, when the conferences were terminated. On April 16, 1970, the carriers applied pursuant to § 5 First of the Act, 45 U.S.C. § 155 First, for the mediatory services of the National Mediation Board ("Board") in connection with all three Section 6 notices referred to above. The same day the Union applied for the Board's services in connection with its notice of October 20 and the carriers' counter-notice of November 7, 1969.

The Board docketed the dispute arising out of the two initial notices in its Case A-8380 on May 19, 1970, and on June 24, incorporated in that docket the dispute arising out of the Union notice served November 20. Mediation commenced on June 30, 1970. The mediation was conducted between the national bargaining representative of the parties on a multi-carrier basis. It failed to produce a settlement. On August 3, in accordance with § 5 First of the Act the Board requested the parties to submit the dispute created by the three Section 6 notices to arbitration pursuant to Sections 7 and 8 of the Act. On August 6 the carriers accepted the proffer of arbitration but the Union declined the proffer. Accordingly, on August 10, 1970, the Board notified the parties that its mediatory efforts had failed and it was that day terminating its services.

The UTU and the three non-operating unions announced their intention to strike the carriers on September 10, 1970. The parties were required by § 5 First to maintain the status quo in their dispute for 30 days after the Board terminated its services. Their national bargaining representatives met during this 30-day period in an attempt to compose their differences. No agreement was reached. While under the Act the parties became free as of September 10, 1970, to exercise the kind of self help authorized by the Act, they agreed to extend the status quo through September 14, and to engage in additional negotiations during that period, at the request of and with the assistance of officials of the Board and the Department of Labor.

These efforts failed. On September 15, 1970, three of the Nation's railroads were struck -- the Baltimore and Ohio, the Chesapeake and Ohio and the Southern Pacific. Meanwhile, on September 14 the carriers filed their complaint in the case now before us. At 11:40 p.m. on September 14 District Judge Corcoran issued a temporary restraining order, conditioned on a small cash undertaking, enjoining defendants from calling selective strikes on less than all the plaintiff carriers. The motion for preliminary injunction was initially set for September 23. During the course of September 15, the District Court issued an order to show cause why coercive civil contempt fines should not be imposed upon the unions if the strikes were continued. The strikes were terminated and the order to show cause was duly vacated on motion of the carriers. On September 23, the defendant unions filed a motion for prompt trial, which was denied by Judge Pratt by a fiat order entered that day.

Meanwhile the President appointed Emergency Board No. 178, created by Executive Orders 11558 and 11559, issued September 18. Section 10 of the Act requires parties to a major dispute to maintain the status quo until an emergency board reports its recommendations to the President (within 30 days after its creation) and for 30 days after such report is made. The Board convened on September 24, and held public hearings September 30 through October 17, 1970. During the course of the hearings, the parties agreed to request the President to extend, until November 10, 1970, the period in which the Board was to submit its Report. Such extensions for Board consideration have been agreed upon for past disputes. The President granted this request.

Board No. 178 rendered its Report on November 9, 1970.5 The carriers accepted its recommendations for national agreements settling the disputes. The unions rejected those recommendations. Further national bargaining failed to settle the dispute within the 30-day period following the issuance of the report.

At 2:10 a.m. on December 10, 1970, the President signed P.L. 91-541. This put into effect the wage increases recommended by Board 178 for adoption in 1970 (see note 5), and extended the status quo requirement of Section 10 of the Act so as to provide that no other changes could be made by the parties, except by agreement, prior to 12:01 a.m., March 1, 1971.

It appears that the unions commenced striking the carriers nationally as of 12:01 a.m. on December 10. At 3:17 a.m. the District Court entered an order temporarily restraining such strikes. No contention is made that UTU violated this order.

Following the enactment of P.L. 91-541 further national bargaining ensued and the disputes with the three nonoperating unions were settled by national agreements prior to March 1, 1971, in accordance with the recommendations of Emergency Board No. 178.

The carriers and UTU did not reach an agreement. On March 7, the carriers filed motions for a temporary restraining order and preliminary injunction, stating that they had been made aware that the UTU intended to strike the Burlington Northern and Seaboard Coast Line as of 12:01 a.m. on March 8, and requesting an order prohibiting such selective strikes. When counsel appeared before District Judge Corcoran, Judge Pratt not being available, on the afternoon of Sunday, March 7, Union counsel conceded that strikes were scheduled to commence at midnight against these two carriers. It subsequently developed that the UTU had sent the President a letter dated March 6, with copies to three Cabinet members and two members of Congress, advising that it was "calling a peaceful withdrawal from service of all its members" on those two roads on March 8. In any event, in the course of the conference on March 7, the Union counsel, after telephoning the president of UTU, assured Judge Corcoran that no carrier would be struck prior to 2:00 p.m. on March 11, 1971. Accordingly the Judge did not issue a temporary restraining order. On March 10, 1971, after an evidentiary hearing held that day, District Judge Pratt issued a preliminary injunction against selective strikes by the UTU. That Union moved in this court for summary reversal of that order. II. Discussion of Substantive Legal Issues

Disposition of this appeal requires discussion of substantive legal issues and principles, and we focus on these before turning to such equitable considerations as the propriety of relief in the light of threatened injury and the public interest, and to procedure appropriate for this litigation.

1. The purpose and scheme of the Railway Labor Act is to "provide a machinery to prevent strikes" and the resulting interruptions of interstate commerce.6 As to minor disputes the Act provides for compulsory arbitration. As to major disputes, like the pay and work rules disputes before the court, the Act's machinery operates not to prohibit strikes but to delay them in order to assure ample opportunity for negotiation and mediation. When the Act was drafted both railroads and unions were bitterly opposed to compulsory arbitration and the settlement of major disputes was left to a process of non-compulsory adjustment.7 What was provided was an elaborate process, specified in detail, consisting of a number of stages which the parties must explore before the right of self help may be asserted.8

The parties are obligated to refrain from self help while the Act's procedures are being pursued. This obligation of restraint endures although these procedures "are purposely long and drawn out, based on the hope that reason and practical considerations will provide in time an agreement that resolves the dispute."9 "The Act's status quo requirement is central to its design." "A final and crucial aspect of the Act [is] the power given to the parties and to representatives of the public to make the exhaustion of the Act's remedies an almost interminable process."10 The role of the Government officials is considered so sensitive and critical that ordinary doctrines permitting judicial action on a complaint of arbitrary delay and protraction are so drastically restricted that court relief from continuation of the process will be available, if at all, only in a most extraordinary situation bordering on patent official bad faith.11

While the procedures of the Act are "almost interminable, " the process is not completely "interminable." It does some time come to an end. Such a time has been reached in the situation before us.

The UTU and carriers have not only pursued the procedures required by law but have also agreed to provide extra time at significant junctures for these processes beyond that required by law, for the periods September 10-14, 1970, and October 18-November 10, 1970. Both Union and carriers now have authority in law, under present law, to resort to the ultimate right of self help.12

2. The right of self help embraces, as to the unions, the right to strike. This is conceded by the carriers, but they say that the right to strike must be exercised solely by a strike called against all the carriers of the nation when national handling and bargaining are obligatory under the Act.

The carriers' legal position is bottomed on the principles set forth in the so-called Alton opinion of Judge Corcoran, Int'l Ass'n of Machinists & Aerospace Workers v. National Railway Labor Conference, 310 F. Supp. 905 (D.D.C. 1970), appeal pending No. 24,217 (D.C. Cir.).

In Alton Judge Corcoran was concerned with a labor dispute between the Class I railroad carriers and the four shopcraft unions. The carriers reached an understanding with three of the unions, but an agreement was precluded when one of the unions, the Sheet Metal Workers, balked at a particular work rule acceptable to the others. The shopcraft unions then struck the Union Pacific Railroad at 12:01 a.m. on January 31, 1970. The carriers then announced a nationwide cessation of operations to begin at 10:00 p.m. on January 31, 1970. The unions sought to restrain the lockout, the carriers sought to enjoin the strike. Temporary restraining orders were granted in both actions.

In the Alton opinion, Judge Corcoran granted a preliminary injunction to the carriers against the strike. We review his reasoning:

(a) National handling of carrier-union disputes, while not expressly compelled in the Act, is legal and indeed may be obligatory in some circumstances, depending on the issues involved and the "practical appropriateness of mass bargaining" for those issues and the "historical experience in handling any similar national movements." Brotherhood of Railroad Trainmen v. Atlantic Coast Line R. Co., 127 U.S. App. D.C. 298, 302, 383 F.2d 225, 229 (1967).

We note that Judge Corcoran correctly understood the import and implication of our Atlantic Coast Line ruling.

(b) National handling was appropriate and obligatory as to the disputes involved in the Alton case.

We assume for present purposes that this conclusion of Judge Corcoran was likewise sound.

(c) In the relevant portion of the opinion Judge Corcoran stated, relying on Section 2 First and Section 2 Second of the Act (see 310 F. Supp. at 912):

"The duty laid out in Section 2 First is 'the heart of the Railway Labor Act.' Railroad Trainmen v. Terminal Co. (supra) 394 U.S. at 377-378, 89 S. Ct. at 1115. By initiating and negotiating the dispute on an obligatory national basis and then striking the carriers on an individual basis it seems clear that the unions have violated their duty to 'exert every reasonable effort to make . . . agreements . . . and settle disputes.' Having begun on a national level, it is incumbent upon the parties to continue to deal on a national level even after the procedures of the Railway Labor Act have been exhausted. To act otherwise would take on the character of bad faith bargaining."

While there is general language that may be abstracted as indicating that any strike against a single employer of a national bargaining group is illegal, that language must be discounted since the decision was not concerned with the problem now before us. Detroit & Toledo Shore Line R. Co. v. UTU, 396 U.S. 142, 156, 90 S. Ct. 294, 24 L. Ed. 2d 325 (1969). On the contrary, perceptive and careful study of the matter reveals that the core of Judge Corcoran's opinion rests on his determination that the Railway Labor Act is properly construed in present context with the same approach as that used for the National Labor Relations Act, and that the latter has been construed as holding that the duty to bargain collectively on a multi-employer level is violated when a union "attempts to force individual agreements" by striking individual members.

The salient legal principle is made clear by Judge Corcoran's reference to and reliance on Int'l Union of Operating Engineers, Local 825, 145 NLRB 952 (1964). In that case the Board's key findings state that the Union violated § 8(b) (1) and (3) of the National Labor Relations Act "by threatening to strike individual members of the Association in order to force them to withdraw bargaining authority from the Association 'and to enter into individual contracts with the [Union at a time when] it was obligated to bargain for an associationwide agreement with the [Association].' . . . There can be no doubt that the Union might lawfully have struck the members of the Association in order to achieve its legal objectives, or for breaking a legal stalemate or impasse in its negotiations with the Association, but it is equally clear and well settled that it could not lawfully strike or otherwise coerce the Association employer-members with an object of causing them to break off from the Association and execute individual contracts with the Union."

3. This case presents a problem concerning selective strikes not decided in Alton.

The Union presents a position and comes forward in support of its claim13 with direct testimony of its president, Charles Luna (set forth in Appendix A), that it agrees and indeed insists that the underlying dispute is such that national handling is appropriate and obligatory.14 What the Union asserts is that the selective strike is lawful because, as appears from the express testimony of Mr. Luna, the strike called by the UTU against the Seaboard and Burlington was not in derogation of national handling but was for the purpose of putting economic pressure on the carriers to enter into a national agreement, a contract better for the workers than the one the carriers were ready to accept in the bargaining carried on in the absence of such economic pressure.

The District Court's ruling as to the carriers' likelihood of success on the merits, appearing in oral comments shortly after hearing argument on the motion (see Appendix B), embraced the legal premise that even accepting the Union's purpose as set forth in Mr. Luna's testimony, the strike was unlawful.15

In our view the litigation before us is properly governed by the legal conclusion that when collective bargaining on a national handling basis has come to an impasse and all procedures of the Railway Labor Act have been exhausted, it is not unlawful for the Union to call a strike against some or a few of the carriers in order to put pressure on the railroads to reach a national multi-employer agreement.

This was the legal conclusion set forth in the opinion of the District Court, issued by Judge Parker on March 8, 1971, in reaching a disposition on the merits of another case, between the same parties, involving fireman manning. United Transportation Union v. Burlington Northern, Inc., et al., 325 F. Supp. 1125, opinion attached as Appendix C. This opinion announced the granting of UTU's request for a summary judgment declaring its right to strike selectively for the purpose of exerting economic pressure to reach a national agreement, and the denial of the carriers' request for an injunction against selective strikes. The core of the decision is reflected in the declaratory judgment subsequently issued by the court:

2. That under the Railway Labor Act once the statutory procedures have been exhausted in good faith without agreement being reached upon a union bargaining notice whose national handling is obligatory and negotiations are thus legally at an impasse, a selective strike action then becomes a legitimate economic tool which the union can exert against the carriers involved in the national handling negotiations so long as the union continues to seek a national agreement by applying economic pressure on the carriers without seeking to coerce individual carriers into disrupting the multi-employer bargaining unit and settling on an individual basis.

We do not prejudge a case that is not before us, and we are not to be taken as holding that Judge Parker acted correctly in either the granting or denial of relief in the matter before him. We cannot avoid, however, appraisal of the substantive rule of law applicable to the case before us, and we find our views as to the state of the law congruent with those voiced in Judge Parker's opinion.

We intend no ruling on the Union's contention that principles of collateral estoppel precluded Judge Pratt from applying to the same parties a legal principle different from that applied by Judge Parker. We deem the public interest to warrant this court's addressing itself to the proper substantive rule on the merits.

Judge Parker's ruling is also in accord with the rulings under the National Labor Relations Act which, as Judge Corcoran noted in Alton, are material though not decisive in defining duties under the Railway Labor Act. In Arizona District Council of Carpenters, 126 NLRB 1110, 45 LRRM 1448 (1960), it was held that the National Labor Relations Act does not prohibit a strike against some members of a multi-employer bargaining unit, begun after bargaining resulted in impasse, when the strike was not for the purpose of concluding individual agreements with the struck contractors but to put pressure toward an Association agreement. The Board rejected the contention of the General Counsel that the economic pressure on the members struck would have a natural tendency to cause them to withdraw from the multi-employer unit, and that therefore a partial strike against a multi-employer unit is a per se violation of the Act. The General Counsel's subsequent rulings accept this approach.16

We are not controlled by these citations as binding precedent. Their reasoning, however, is persuasive. The Railway Labor Act defers and delays, but in the last analysis it does not deny, a Union's right to call a strike. That right of self help has been reached in the case before us. The courts are not free to terminate or qualify that right, except in pursuance of authority granted by Congress. No such authority appears in the wording of the Railway Labor Act. Any doctrine that the right to strike may be limited by implication must be carefully confined. The Norris-LaGuardia Act has withdrawn the power of the Federal courts to issue injunctions in labor disputes. That prohibition is subject to an overriding doctrine permitting the issuance of an injunctive order in order to enforce compliance with the requirements of the Railway Labor Act.17 The obligation to bargain collectively may fairly comprehend a duty to bargain on a national handling basis, and to seek to reach national agreement. But the Union has bargained on a national basis, and it seeks to reach a national agreement. It now has the right to strike and to use economic pressure so long as it does not violate its obligation to continue to bargain collectively. As Alton points out, the duty is to bargain in good faith, which means an absence of bad faith, and an effort to pursue single agreements may be taken as undercutting an obligation to conduct national bargaining in good faith. But an effort to pursue a national agreement by increasing the use of non-violent economic pressure is subject to no such condemnation.

*fn4. Judge Pratt held that the Act precluded the Union from calling a strike on the two carriers because, by its own account, it was not seeking to reach an agreement with those carriers and indeed stated it would decline to consider an agreement by those companies to end the strike on terms acceptable to the Union. In point 5 we consider this theory. For a clear picture of the shape of the controversy before us we interject to take account of the quite different, almost diametric, position that the carriers put forward in their motion papers in District Court, and reiterate on appeal as an alternative argument available for affirmance of the injunction.

The carriers begin with the premise that as to this dispute they have a continuing right to bargain and agree as a group through joint national representatives, and that the Union has a reciprocal obligation to respect that right. We do not understand the Union to contest this position and in any event we accept it.

The carrier's conclusion that the Union's strike against two roads is a violation of the carriers' group right to bargain as a group may be presented in capsule form by quoting this sentence from their moving papers:18

"The foreseeable effect of such strikes -- unless enjoined by the Court or countered by a lockout -- is to coerce the struck carriers into withdrawing from multi-carrier national handling of the dispute and to seek to make the best individual agreements that they can with the UTU through their respective officials."

The carriers sought to obviate any Union profession that its purpose was to continue national bargaining with the assertion that the foreseeable consequence of the selective strike is to coerce the struck carriers to withdraw from national handling and that the Union must be held to intend the foreseeable consequences of its conduct.19

We think it useful to present at length the contention as renewed in the response filed by the carriers on appeal:20

"Even under Judge Parker's view of the law a selective strike violates the Railway Labor Act if it would 'coerce individual carriers into deserting the multi-employer bargaining unit and settling on an individual basis.' And, there is extensive evidence in the record that whipsaw strikes in the circumstances of this cause would force the struck carriers to seek to withdraw from national handling of the dispute and to make the best individual agreement that they can, however unreasonable or extravagant. We refer the Court particularly to paragraphs 31-33 of the Affidavit of John P. Hiltz, Jr., paragraphs 8-21 of the Third Supplemental Affidavit of John P. Hiltz, Jr., and the Affidavits of W. Graham Claytor, Jr., W. Thomas Rice and Thomas C. DeButts.

"As that evidence demonstrates, the railroads are particularly vulnerable to strikes in view of their precarious financial condition; the fact that they are a service industry which cannot stockpile in preparation for a strike or later make up for losses in production, so that traffic diverted to another railroad or to another mode of transportation is lost forever; the fact that customers who are forced by a strike to arrange other methods of transportation often do not resume using the struck railroad (or do so to a much lesser extent) once the strike is ended; the fact that the rates charged by railroads cannot be increased without approval of the ICC (which often involves extensive delays); and various other considerations. The railroad unions, on the other hand, are in an unusually strong position. Not only do the employees represented by non-striking unions almost invariably refuse to cross the picket lines established by the striking unions so as to make continued operation in the face of a strike largely impossible, but railroad employees -- unlike those in any other industry -- are paid unemployment benefits while engaged in a lawful strike (as are the employees who refuse to cross picket lines). Those benefits are paid from a fund made up entirely from contributions by the railroads alone, they are tax free, and they are substantial (usually $12.70 per day). Thus, in effect the railroads are compelled to subsidize strikes against themselves. Moreover, the unions can and do pay additional strike benefits to striking members from funds contributed by the union's members on all carriers, so that there is almost no economic pressure upon the striking employees to return to work for anything other than a capitulation to their utmost demands.

"In short, where one railroad is forced to stand out alone against the full force of a national union while its traffic is being diverted to competing railroads, among others, it cannot stand out for more than a few days at most. It cannot itself bring about a national agreement, since the multi-employer bargaining agent (here the National Railway Labor Conference) must reflect the views of the majority of its members involved in the dispute (some 170 in all in this dispute) and the majority cannot be expected to accept an agreement they deem to be entirely unreasonable in order to relieve the pressure upon the struck railroad. Thus, the foreseeable effect of a whipsaw or selective strike is to coerce the struck carrier to seek to withdraw from national handling and to enter into an individual agreement on whatever terms it can obtain. And . . . the general rule 'that a man is held to intend the foreseeable consequences of his own conduct' is applicable to labor disputes."

This contention is bottomed on the statements in the carriers' affidavits that in view of the inability of a single carrier or a few carriers to stand out alone against the power of a national union, the foreseeable and "indeed the almost inevitable consequence" of permitting a selective strike was that the struck carriers would beg for a separate peace, resulting in the destruction of their multi-employer bargaining unit.21

As we understand Judge Pratt's opinion, he proceeded on a different theory on the merits. But we do not stand on technicality and instead consider whether the carriers have a case so strong that we can and should accept the contention as renewed on appeal. Our consideration leads us, instead, to the conclusion that there are grave difficulties with the carriers' contention.

First, we note that the ultimate issue is not what the carriers thought would happen but the Union's good faith.

Second, is the consideration that the carriers' "almost inevitable consequence" doctrine, if accepted, destroys the possibility of any meaning for Judge Parker's ruling that the law permits a good faith selective strike to exert pressure in order to reach a national agreement, provided there is no coercion of individual carriers into deserting the multi-employer bargaining unit and settling on an individual basis. Yet in the Burlington opinion Judge Parker not only found that there was no evidence to negative the conclusion that the UTU had bargained in good faith on a national basis, but also took note that during the past twenty years there were a number of instances when the railroad union had exercised the right to individual or selective strikes even though the underlying dispute was the subject of national handling, including the 1950 strike against eight carriers which led to the National Diesel Agreement of May 17, 1950.

Third, we observe that the carriers' affidavits stress what they find is support in history for their conclusions, a support bottomed on the selective strikes by the Brotherhood of Railroad Trainmen, beginning in 1968, over the "crew consist" issue. These resulted in a succession of capitulations and individual agreements by individual railroads after strikes of but a few days, resulting in a reversal of the reductions in crew size authorized by the Award of Arbitration Board No. 282. But in that case the Union was avowedly seeking individual agreements, in the wake of this court's 1967 decision in the Atlantic Coast Line case, cited above, which held that "crew consist" was not an issue on which there was an obligation of national handling. And so when Mr. Claytor was called to testify on the subject of his affidavit, he conceded that since the crew consist issue was not being handled nationally "the parallel is not pertinent." (Tr. 30).

Fourth, the fact that the present dispute involves a matter subject to national handling means that the carriers may make a national response to defend against a selective strike that jeopardizes national bargaining. At the very least they could introduce unilaterally on a national basis the work rules they proposed in their Section 6 counteroffer. And they could impose a national lockout if necessary to defend the principle of national bargaining.22

This basic point -- that the carriers can take such national action as is needed to defend against the breakdown of national bargaining -- is completely omitted from the carrier affidavits, except perhaps for the oblique reference in the affidavit (see note 21) that a selective strike means a breakdown of national bargaining unless there is a national lockout.

Fifth, while counsel for the carriers purports to deride the notion that Mr. Luna could conceive that a selective strike could put economic pressure on a national group, in the absence of some finding based on demeanor we see nothing so inherently improbable in Mr. Luna's testimony as to compel a conclusion of bad faith. He felt the strikes would put pressure on the struck roads to tell their representatives on the national group to settle the issue (Tr. 74). We note that Mr. T. C. DeButts, vice president labor relations, Burlington Northern Inc., is a member of the Western Carriers' Conference Committee, and Mr. C. E. Mervine, vice president of Seaboard Coast Line, is a member of the Southeastern Carriers' Conference Committee. The struck roads would presumably not be devoid of influence in the National Conference. And he felt that without some economic pressure the carriers would be rigid in avoiding further bargaining.

There would also be pressure on the non-struck roads impelling toward a national agreement, including the need to make contributions to the mutual plan to compensate the struck roads -- a point that surfaced at oral argument before this Court.

Sixth, we cannot say that a selective strike is inherently incompatible with the objective of reaching a national agreement. Nor can we reject as irrelevant to good faith the position implicit in Mr. Luna's testimony that a national strike would be unavailing to the Union as a means of obtaining national agreement since in all likelihood the carriers would instead seek, and obtain from the legislature, a form of compulsory arbitration. On the other hand, future arbitrary positions and tactics of the UTU might not only jettison all hope of agreement and precipitate a national lockout by the carriers (see note 32) and the compulsory arbitration dreaded by the Union, but might undercut the assumption of Union good faith underlying our opinion.

We are not to be misunderstood as making a forecast concerning any or all of these broad considerations. What we do say is that we see no basis in the evidence for holding that the Union's profession of purpose in seeking a national agreement is devoid of good faith, either because of subjective intent or because the claimed objective of a national agreement is too flimsy or preposterous to be taken seriously, because it contradicts the "predictable, and probably inevitable" consequence of the Union's action (see note 21).

*fn5. In pointing out the difficulties involved in making a finding of Union bad faith, we have also provided perspective for Judge Pratt's ruling. He sought to obviate those difficulties by accepting Mr. Luna's testimony that he was not seeking individual agreements with the two struck roads. It was elicited that if the Union struck Seaboard Coast Line there would be no way to settle that strike except on a national basis. Because of their significance the pertinent responses given by Mr. Luna to the court and to carriers' counsel are set forth in Appendix A. These include:

The Court: But if it took a year, why conceivably Coast Line will still be struck?

The Witness: That is exactly it, Your Honor.

The Court: They couldn't make an individual agreement?

The Witness: No, sir; they couldn't do that.

The Court: And even though they tried hard to get Mr. Hiltz to --

The Witness: That is their problem.

The Court: In other words, Mr. Rice and his road are going to be held hostage until a national agreement takes place?

The Witness: Your Honor, may I explain something?

The Court: Let's answer that question.

The Witness: Yes, sir.

The Court: All right, now go ahead Mr. Luna.23

In rebuttal argument carriers' counsel, in addition to the approach of the moving papers that the selective strike would be in derogation of national handling, picked up the "hostage" conception and put it (Tr. 116) that the Act "can't possibly, in my view, be interpreted as permitting a road to be struck and, as you put it, held as hostage for a year or two years while the others hold out. It just seems to be an outrageous suggestion of interpretation of the Act. The right to use economic force is a right to seek a settlement. They can't hit one railroad and destroy it in the way that Mr. Luna is suggesting."

This became the Court's ruling (Tr. 120-21, Appendix B):

"According to the very frank testimony of Mr. Luna, both the Seaboard and the Burlington would be struck until a national agreement is reached. No private agreements with these two carriers would be entered into.

"The purpose of the strike would be to force the Seaboard and the Burlington to put pressure on their bargaining agent in order to reach a national agreement.

"This could take a week, a month, or a year. During this particular period of time, however long or however short, these two roads would be struck, their operations would be closed down and there would be no way by entering a private agreement an individual agreement with the union that these two carriers could get back into operation.

"We are satisfied that a whipsaw strike for such a purpose violates the Railway Labor Act."

The sound legal approach to the so-called "hostage" issue is one which requires reflection, and, we think, consideration in the light of concrete facts rather than abstraction. We reiterate our observations that the courts are not expert in this field of labor relations, they have no guidance from a railway labor tribunal, and they are well advised to proceed with caution before declaring principles that are not expressed in the Act nor so clear and well defined that they must be declared plainly implicit in the Act. The National Labor Relations Board finds nothing illegitimate or inconsistent with free collective bargaining in a union's putting pressure on a multi-employer bargaining unit by striking individual employers. A strike begun with a lawful purpose may become illegal because of methods used in carrying on the strike, and it may be that this might apply to refusal to bargain with an employer who has withdrawn from the multiple unit. But such determinations cannot fairly be made in advance of ascertaining the factual perspective.

The case before us is one in which the declaration of absolute principle brought forth by the court was particularly inappropriate because the Union's intentions had not been formulated on the issue of negotiating with a carrier who withdrew from collective bargaining, and the issue was put in purely hypothetical terms. As appears from the transcript (Appendix A), carriers' counsel embarked on a testing of Mr. Luna's contingent plans, as of course he had a right to do in testing the good faith of Mr. Luna's declaration of intention to seek a national agreement.

It is clear from the transcript that Mr. Luna's testimony that his objective was to seek a national agreement and that he would refuse to sign an individual agreement with the struck carriers was in the context of the situation presently existing, where the two carriers involved were in the group represented by the unit engaged in bargaining on a national basis. When he was asked what he would do if the road offered to withdraw from the national group, Mr. Luna inquired whether the road would do that. When the question was renewed on a hypothetical basis, objection was made by Union counsel to the asking of a hypothetical question. We interject that the hypothetical nature of the inquiry was not only plain from the very nature of the question but was underscored by the previous testimony of Mr. Hiltz, the carriers' bargaining spokesman, that while it is entirely voluntary whether a railroad participates in national handling of a dispute, he had not had any occasion, and knew of no instance, in which a railroad that had given a power of attorney to participate in such national handling had subsequently withdrawn the power of attorney. (Tr. 42). Following the objection of Union counsel, the court asked Mr. Luna whether he would accept a private settlement agreement, but the court did not set forth as a premise either that the road would have withdrawn from the national group, or on what terms.

Our concern with the abstract and hypothetical predicate underlying the District Court's statement of an absolute principle is heightened by our judgment that the concrete facts as they developed would have a bearing on the legal principle involved, and in all likelihood on the actual response of the Union in the light of the facts as they took shape. The Union's willingness and obligation to negotiate with, say, Seaboard, might well be affected by the nature and extent of Seaboard's activities and its claim to be an innocent hostage. Suppose Seaboard had proposed further steps toward agreement which the Conference had rejected? Suppose on the contrary it had used its vote and influence to stand firm against national concessions? Suppose Seaboard claimed that the group had abdicated its implied responsibility to take fair and effective national action in the light of a threat to national bargaining -- e.g., had rejected Seaboard's request for more mutualizing of the burden; or for a national response in the form of a unilateral change in work rules.

We feel constrained to interject a note of caution against the confusion that may arise from using for the area of labor relations a conception like that of "hostage" which regenerates the horror with which the free world reacted to the German execution of innocent civilians in the 1940's. And even the rules of international law apparently draw some distinctions in terms of the innocence of the hostage that makes inapplicable a recourse to principles of collective responsibility.24

Returning to the subject at hand, we are not to be taken as setting forth one way or the other the principles governing the legitimacy of a Union's refusal to bargain with a struck employer who has withdrawn from a multi-employer group. What we do rule is that this problem may not be taken as permitting the enjoining at its inception of a strike against an employer called for a lawful purpose of exerting economic pressure toward the objective of achieving a national agreement, because of the hypothetical possibility that the facts as they develop may come to show a method in violation of the Act in the Union's refusal to bargain with the struck employer notwithstanding his intervening withdrawal from the group. At such time the court may step in, consider the actual facts, and if appropriate enjoin the continuation of the method or the strike. The carriers could seek such relief, if warranted on the actual facts as they developed, by a motion in their pending complaint and docket. The District Court should not have granted a preliminary injunction on this basis.

*fn6. We conclude this discussion of the merits by noting Judge Pratt's concluding reference (Appendix B), that notwithstanding Judge Parker's opinion, the general rule in the Federal courts has been that selective railway strikes are properly enjoined, as in the instances of the orders entered by Judge Corcoran in the Alton case and Judge Robinson in the Burlington case.

Confusion as to the scope of these opinions may be due in part to the different conceptions ascribed to the term "whipsaw" strikes.25 In any event, as we have already pointed out, it is not a sound reading of Alton and earlier opinions to say that they condemn all selective strikes and to gloss over the all-important question of whether the selective strike is one that seeks to disrupt national bargaining by achieving individual agreements.26

The reasonable probability of success foreseen for the carriers by the District Court rests on an erroneous premise. Under the doctrines we have set forth there is no reasonable probability that the Union's strike will be held violative of the Act in its inception, there being no evidence or finding of bad faith to contradict the statement of the Union's president that the strike was called against two roads in order to generate economic pressure in an effort to revive stalled bargaining and arrive at a national agreement. III. Considerations Pertaining to Request for Preliminary Injunction

We turn to the question whether our function on review at this juncture requires us to affirm the grant of a preliminary injunction notwithstanding our views concerning the error in the approach taken by the District Court.

1. Applicable doctrine states that "a preliminary injunction normally lies in the discretion of the trial judge" and the appellate court's scope of review is limited "to the issues of whether the trial judge abused his discretion in granting the injunction, or rested his analysis upon an erroneous premise." A Quaker Action Group v. Hickel, 137 U.S. App. D.C. 176, 180, 421 F.2d 1111, 1115 (1969). We think this case falls within the group of situations where the granting of an injunction must be reversed because the trial judge rested his action upon an erroneous premise.27

The court is obligated to appraise the merits of a case on a request for preliminary injunction. In the first place, the "movant must show a substantial likelihood of success on the merits,"28 a requirement sometimes phrased as a "reasonable probability of success." Moreover, an assessment of the merits also suffuses the other factors requisite to a preliminary injunction -- the requirement that movant show irreparable harm in the absence of an injunction, and the need of the court to consider damage to the respondent from granting the injunction, and to consider the public interest involved in both the grant and denial of relief. The accommodation and "balancing" of these considerations often, perhaps typically, depend on underlying premises as to the substantive law defining legal rights.

Thus in cases involving a claim by movant of interference with protected freedoms or other constitutional rights, the finding of irreparable injury cannot meaningfully be rested on a mere contention of a litigant, but depends on an appraisal of the validity, or at least the probable validity, of the legal premise underlying the claim of right in jeopardy of impairment.29 It often happens that when the parties present conflicting claims of rights and conflicting fears of threatened injury, one from the impact of the activity sought to be restrained, the other from the impact of any injunctive order, the situation realistically facing the court is this, that one party or the other will be injured whichever course is taken. A sound disposition in the interest of justice from the process of discerning and weighing of pertinent interests must depend on a reflective and attentive appraisal as to the outcome on the merits.30

In this case, the District Court voiced a quite proper concern with the possibility that the two struck railroads would suffer substantial and possibly crippling economic harm while the dispute was being resolved on the merits. On the other side of the coin, however, the suspension of the employees' right to strike involves a fundamental right, rooted in the freedom of the citizens of a free society to assemble and organize together for lawful purposes. It was a conviction that the Federal courts had not sufficiently taken into account this freedom of employees that led to the passage of the Norris-LaGuardia Act. The court has authority to issue injunctions to prevent violations of the Railway Labor Act. But that Act too has a central conception that underscores the right of labor to strike, and of management to self help, after the period when these rights have been kept in suspense.

Indeed the Administration's December 1970 request for legislation to avert the rail strike took into account that in view of the protracted nature of the dispute the unions "understandably" felt aggrieved by a proposal for further delay,31 but expressed the position that the time previously available for intensive consideration of the recommendations of the Emergency Board had been insufficient to grapple with all the intermeshed issues. Three months later the employees' right to strike cannot fairly be suspended in the face of a conclusion on the merits that its assertion violates no legal duty.

The duty to appraise the merits at the stage of preliminary injunction is a duty of appellate as well as trial courts. Usually this appraisal is phrased in terms of probability or substantial likelihood of success after trial. Sometimes, however, the interest of justice is furthered by providing a determination on the merits, both at the trial court and on appeal, if and to the extent that the matter is ripe, notwithstanding that technically the only matter submitted is a request for a preliminary injunction. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584-85, 96 L. Ed. 1153, 72 S. Ct. 863 (1952).

Insofar as the action of the trial judge on a request for preliminary injunction rests on a premise as to the pertinent rule of law, that premise is reviewable fully and de novo in the appellate court. The matter stands in a different posture from that involved when there is no question or disagreement as to the legal principle involved, and the element of probability of success on the merits depends on a forecast as to the shape of the facts likely to emerge at trial. If the appellate court has a view as to the applicable legal principle that is different from that premised by the trial judge, it has a duty to apply the principle which it believes proper and sound. The reversal of the trial judge in no way reflects a determination that he was unreasonable or arbitrary, or chargeable with an abuse of discretion, but only and simply that his premise as to the applicable rule of law is deemed erroneous by the appellate court.

2. Implicit in what we have said is the disposition appropriate for two factors that are often singled out for dominant weight in disposition of preliminary injunction requests. The first is preservation of the status quo. This typically, indeed often, is a central reason for sustaining the grant of a preliminary injunction. But it cannot prevail over a determination that the party enjoined will be deprived of substantial legal rights discerned by appraisal of the merits of the case. There may be an exception for those cases where bond can in any event secure the party enjoined, but that is hardly the situation before us where only a $1,000 bond was provided, and furthermore money damages compensable by bond would be difficult if not impossible to ascertain.

There is an important difference in this regard between the kind of "freeze" order available from a court and from Congress. While Congress may in effect move like a court to enjoin a strike for a temporary period, it has the additional flexibility of being able to write commands that limit the injury to the party enjoined even during the temporary period. The Joint Resolution of December 10, 1970, P.L. 91-541, is a concrete example. In that law Congress found substance in the complaint of the unions of the consequence of further delay in the exercise of their rights, and provided for the granting of wage increases, retroactive in part to January 1, 1970, and in part to November 1, 1970, in accordance with one of the recommendations of Emergency Board 178.

The other doctrine is that the granting or denial of injunctive relief may properly depend on ascertainment of the public interest.32 A question arises whether a temporary prohibition of selective strikes is in the public interest, whether it may not be in the immediate public interest for strikes to be on a selective basis, against a few roads, rather than on a national basis.33 If the premise is that a prohibition of selective strikes is in the public interest, because the union would not dare to exercise its legal right to call a national strike in view of the probability that Congress would intervene to grasp the situation, we first observe that such a premise implies as a consequence that the union has lost the right to any strike whatever, -- a position which cannot be taken as defining the public interest unless and until the legislature says so and revises the Act accordingly. Moreover, we question whether a court should directly engage in such calculations of legislative strategy, however realistic. That brings us back to the approach that is plainly appropriate to the judicial branch, to let the judicial action depend on an appraisal of the legal rights of the parties on the merits, at least if the case is ripe, for surely that is in the public interest.

3. While we reverse the order granting the preliminary injunction that has been appealed to this court, we contemplate that the District Court's continuing jurisdiction over the complaint and docket will keep the door of the equity court open and available, on an expeditious basis, for such access as developments may show to be warranted in law. As already noted, while we differ with Judge Pratt as to the legal approach properly applicable we have not termed his action an arbitrary abuse of judicial discretion. And in this opinion (Part II, 5) we have identified his area of concern as one that may properly require judicial consideration depending on the response of the carriers, and perhaps of Congress, to the pressure generated by the calling of a selective strike.

It occurs to this court as a possibility that may merit exploration by the parties, and if necessary by the District Court, that the Union's search for some economic pressure on the railroads to stimulate national bargaining, and the interest in avoiding vengeful harm to carriers without meaningful responsibility or capacity to affect the result, may be reconciled by providing what will in effect be a rotation of selective strikes. These and other possibilities must await concrete proposals and developments, and we intend no ruling on them.

We conclude by referring to a matter that has not been previously identified. This court has noted that carriers and labor alike have an obligation under the Act to treat with each other through "responsible conduct of the process of collective bargaining."34 That responsibility continues even after the termination of an agreement, and even after the right of strike or self help comes into existence. That responsibility is not consistent with such actions as a deliberate timing of a strike without prior warning, with the purpose of enhancing plant damage or some other garrotte of jungle warfare.35

The difficulties presented by the case before us may have been accentuated by the Union's determination to call a strike effective midnight Sunday, without direct notice to the railroads. We think the continuing duty of responsible bargaining under the Act fairly embraces reasonable notice of a strike or lockout or other self help. In a land conversant with the tradition of two weeks notice for a discharge, that would seem a bench mark for reasonable notice. While a requirement of reasonable notice may be unwelcome to the Union as providing time for countermeasures, it is a limited interference with the protected freedoms that our judgment safeguards, and one that is appropriate in view of the purpose of the Act to achieve resolution of disputes as far as possible through responsible bargaining.

Our view that the Union's selective strike is lawful in its inception depends on an assumption of good faith as to its stated purpose of the strike. The District Court has continuing jurisdiction to reappraise the Union's good faith in the light of either substantial evidence not previously available or developments as to tactics and methods following notice to the carriers of the strike call.

The order of the District Court granting a preliminary injunction is reversed. The cause is remanded to remain on the docket of the District Court and subject to its continuing jurisdiction, for such further proceedings as may become appropriate, not inconsistent with the opinion of this Court.

So ordered.

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