306 F.2d 840 (2nd Cir. 1962), 398, Pan Am. World Airways, Inc. v. Flight Engineers' Intern. Ass'n, PAA Chapter, AFL-CIO

Docket Nº:398, 27657, 27658.
Citation:306 F.2d 840
Case Date:July 25, 1962
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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306 F.2d 840 (2nd Cir. 1962)




Petition of FLIGHT ENGINEERS' ASSOCIATION, PAA CHAPTER, AFL-CIO, for a Writ in the Nature of Prohibition.

No. 398, 27657, 27658.

United States Court of Appeals, Second Circuit.

July 25, 1962

Argued July 16, 1962.

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Daniel Kornblum, New York City, and William Peer of Zimring, Gromfine & Sternstein, Washington, D.C., for appellant.

Herbert Prashker of Poletti, Freidin, Prashker & Harnett, New York City (Eric Rosenfeld, Richard H. Borow and Noel B. Berman, New York City, of counsel, on the brief), for appellee.

Before LUMBARD, Chief Judge, and MOORE and HAYS, Circuit Judges.

HAYS, Circuit Judge.

This is an appeal from orders of the District Court for the Eastern District of New York granting a temporary restraining order against a strike by appellants and extending the order from time to time. The appellants seek, in the alternative, a writ in the nature of a writ of prohibition. Cf. Lummus Co. v. Commonwealth Oil Refining, 297 F.2d 80 (2d Cir. 1961), cert. denied, Dawson v. Lummus Co., 368 U.S. 986, 82 S.Ct. 601, 7 L.Ed.2d 524 (1962). We do not pass upon the alternative petition since we hold the orders appealable.

We consider first our jurisdiction to entertain this appeal. Ordinarily there can be no appeal from the issuance of a temporary restraining order. Grant v. United States, 282 F.2d 165 (2d Cir. 1960) ;

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Connell v. Dulien Steel Prods., Inc., 240 F.2d 414 (5th Cir. 1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074 (1958); 7 Moore, Federal Practice P65.07 at 1649 (2d Ed.1955). In the present case we hold the orders appealable under 28 U.S.C. § 1292(a)(1) as an order granting an injunction.

On June 22, the lower court signed an order to show cause setting a hearing on a motion by Pan American to enjoin a threatened strike by the Flight Engineers. The order to show cause contained a temporary restraining order prohibiting the strike until June 26. On June 26, the court, having commenced the hearing on the motion for a preliminary injunction, extended the temporary restraining order to July 6, and on July 5 granted a further extension to August 1.

There is no statutory authority for the indefinite, successive extensions of temporary restraining orders. Rule 65(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that a temporary restraining order

'shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period. * * *'

See United States v. United Mine Workers, 330 U.S. 258, 301, 67 S.Ct. 677, 91 L.Ed. 884 (1947).

Since the order here under consideration was extended far beyond the limits prescribed by Rule 65(b) we need not consider the applicability of Section 7(e) of the Norris-La Guardia Act (29 U.S.C.A. § 107) which provides that a temporary restraining order issued in cases growing out of labor disputes 'shall be effective for no longer than five days and shall become void at the expiration of said five days.'

Appellee argues that the time limited set forth in Rule 65(b) (and Section 7(e) of the Norris-La Guardia Act) are applicable only to situations where the temporary restraining order was issued ex parte. This contention was expressly rejected by the fifth circuit in Connell v. Dulien Steel Prods., Inc., supra, where the court pointed out that 'this interpretation would read out of the rule the requirement of the consent of the restrained party to an extension beyond a second 10 days period, since it would, in effect, substitute mere notice to, or the presence of, the party for its consent.' 1 (240 F.2d at 417; emphasis in original.) The fact that notice is given and a hearing held cannot serve to extend indefinitely beyond the period limited by the Rule the time during which a temporary restraining order remains effective. 2 The statute contemplates that notice and hearing shall result in an appropriate adjudication, i.e. the issuance or denial of a preliminary injunction, not in extension of the temporary stay. 3

The purpose of a temporary restraining order is to preserve an existing situation in statu quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction.

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Such an order is necessarily limited to a very brief period because what may later prove to be a right of the party who is restrained is suspended before even a tentative adjudication as to that right has been had. A union, for example, may have a perfect right to strike and may have chosen a particularly opportune time for doing so. By the issuance of a temporary restraining order a court, without adjudicating the basis right, prohibits the strike. The longer the period of such prohibition the greater the chance that the right will be completely frustrated because the opportunity once suspended may, as a practical matter, be lost. And frequently recovery on the bond will not compensate adequately for the suspension or loss of the right involved. It is because the remedy is so drastic and may have such adverse consequences that the authority to issue temporary restraining orders is carefully hedged in Rule 65(b) by protective provisions. And the most important of these protective provisions is the limitation on the time during which such an order can continue to be effective.

It is for the same reason, the possibility of drastic consequences which cannot later be corrected, that an exception is made to the final judgment rule to permit review of preliminary injunctions. 28 U.S.C. § 1292(a)(1). To deny review of an order that has all the potential danger of a preliminary injunction in terms of duration, because it is issued without a preliminary adjudication of the basic rights involved, would completely defeat the purpose of this provision.

We hold, therefore, that the continuation of the temporary restraining order beyond the period of statutory authorization, having, as it does, the same practical effect as the issuance of a preliminary injunction, is appealable within the meaning and intent of 28 U.S.C. § 1292(a)(1). Sims v. Greene, 160 F.2d 512 (3d Cir. 1947); Missouri-K-T R.R. Co. v. Randolph, 182 F.2d 996 (8th Cir. 1950); Western Union Telegraph Co. v. United States and Mex. Trust Co., 221 F. 545, 553 (8th Cir. 1915); Grant v. United States, supra, 282 F.2d 167-168 (dictum); see 7 Moore, Federal Practice, P65.07 (2d Ed.1955); 3 Barron & Holtzoff, Federal Practice and Procedure, § 1440 (Wright ed. 1958). 4

There is no real dispute on the facts and we accept, for purposes of this opinion, the facts as stated by Pan American, the appellee.

Pan American and the Flight Engineers' International Association had a collective agreement dated October 25, 1957, which provided for reopening on June 1, 1960. At an appropriate time prior to the reopening date each of the parties served upon the other a notice of proposed changes as required by Section 6 of the Railway Labor Act (45 U.S.C.A. § 156). (Such notices are referred to in the industries covered by the Act as 'Section 6 notices.')

The Section 6 notice of the Flight Engineers was a document of 25 pages requesting detailed changes in the provisions of the collective agreement referring to wages, hours, rules and working conditions generally. Pan American, in its Section 6 notice, also asked for extensive changes in the working rules, etc.

In May the parties began negotiations on the proposals made in their respective Section 6 notices. When they failed to

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reach agreement they invoked the services of the National Mediation Board, as required by the Railway Labor Act (45 U.S.C.A. § 156). On May 31, 1960 the National Mediation Board docketed the case and on and after August 2 an assigned mediator took part in the negotiations sessions. The mediation procedure continued until February, 1961.

On February 17, 1961 the National Mediation Board informed the parties that the President, pursuant to Section 10 of the Railway Labor Act (45 U.S.C.A.§ 160) had appointed an Emergency Board to consider their dispute. The Emergency Board held hearings from April 24 to June 8, 1961. On June 20, 1961 the Emergency Board issued its report. The statutory thirty day waiting period after the Emergency Board's report thus expired on July 20, 1961.

In the meantime, on February 17, 1961, the Flight Engineers struck Pan American. The district court on February 18 issued a temporary restraining order and the strike was terminated. This order was continued by stipulation (see Rule 65(b), Federal Rules of Civil Procedure) from time to time until July 25, 1961, when the court declined to extend the order further, saying that the Flight Engineers were now 'free to strike' (the statutory thirty day period following the Emergency Board report having elapsed).

Thereafter negotiations continued with sessions being held from time to time. Undersecretary of Labor Wirtz attempted mediation throughout the spring of 1962, and Secretary Goldberg met with the parties in June. When these efforts resulted in no agreement the Flight Engineers called a strike which began on June 23 and was terminated later the same day as a result of the order now under consideration.

In the course of this long period of negotiation a set of issues was injected which had not been included in the original Section 6 notices of April and May 1960. Prior to that time the agreements of Pan American with the Flight Engineers and with the Airline Pilots Association included provision for...

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