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

March 31, 1971

THE DELAWARE AND HUDSON RAILWAY COMPANY ET AL., APPELLEES

v.

UNITED TRANSPORTATION UNION ET AL., APPELLANTS 1971.CDC.95 DATE DECIDED: MARCH 31, 1971



Wright, Leventhal and Wilkey, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL

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 ...


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