AIR TRANS. ASS'N v. Professional Air Traffic Contr. Org.

• Decision Date: 05 May 1970
• Docket Number: 70-C-410.,No. 70-C-400,70-C-400
• Citation: 313 F. Supp. 181
• Parties: AIR TRANSPORT ASSOCIATION, American Airlines, Inc., et al., Plaintiffs, v. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO), Michael J. Rock, et al., Defendants. UNITED STATES of America, Plaintiff, v. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO), its officers, agents, servants, members, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

313 F. Supp. 181

AIR TRANSPORT ASSOCIATION, American Airlines, Inc., et al., Plaintiffs, v. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO), Michael J. Rock, et al., Defendants.

UNITED STATES of America, Plaintiff, v. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO), its officers, agents, servants, members, et al., Defendants.

Nos. 70-C-400, 70-C-410.

United States District Court, E. D. New York,

April 7, 13, May 5, 1970.

Edward R. Neaher, U. S. Atty., Brooklyn, N. Y., for the United States; Robert A. Morse, Chief Asst. U. S. Atty., Lloyd H. Baker, Richard C. Antonacci, Howard Babbush, Cyril Hyman, Asst. U. S. Attys., of counsel.

Poletti, Freidin, Prashker, Feldman & Gartner, New York City, for Air Transport Ass'n of America; Herbert Prashker, Murray Gartner, Eric Rosenfeld, New York City, of counsel.

Martin J. White, Thomas Halloran, Jamaica, N. Y., for Federal Aviation Adm'n.

Segal & Hundley, New York City, Catterson & Nolan, Port Jefferson, N. Y., for "PATCO"; Marvin Segal, Nicholas Scoppetta, New York City, James Catterson, Jr., Port Jefferson, N. J., of counsel.

JUDD, District Judge.

MEMORANDA

In two actions for injunctions against work stoppages by federal employees, oral memoranda were placed in the record as occasion required, and are assembled here.

Following calls by several hundred air controllers in many cities of the United States on March 25th and 26th, 1970, that they were too sick to work, Air Transport Association of America (ATA) and thirteen member airlines brought the first action, 70-C-400, against Professional Air Traffic Controllers Organization (PATCO), its officers and directors and various of its leaders in the metropolitan area, and approximately 200 individual members, to enjoin the work stoppage, to direct them to perform their statutory duties and for damages.

The court on March 30th signed an order to show cause for a preliminary injunction with a temporary restraining order against any concerted refusal to work.

Two days later, the United States of America filed the second injunction action, 70-C-410, against PATCO and its officers and members and certain of its leaders in the metropolitan area. The court issued an order to show cause for a preliminary injunction and a temporary restraining order in terms basically similar to those in the ATA order.

The absence of the Controllers continued in spite of the temporary restraining order. ATA presented an order to show cause which the court signed on April 6th and which was served on the Controllers personally that night, directing them to appear in court on April 7th (the adjourned date for hearings on the preliminary injunction) and show cause why they should not be punished for contempt of court for violation of the ATA restraining order.

Memorandum on Standing of Plaintiffs in 70-C-400 (April 7, 1970)

In connection with the motion of defendants in 70-C-400 to dismiss the airlines' complaint for lack of standing, I have given considerable thought to the motions, and have reviewed the materials that have been submitted to me.

The complaint charges an illegal conspiracy to violate the United States statute which forbids anyone to hold a position with the United States government while he participates in a strike or asserts the right to strike or is a member of an organization of employees that he knows asserts the right to strike against the government. 18 U.S.C.A. § 1918. This is one of the laws of the United States which it is my sworn duty to uphold.

The complaint alleges that an illegal work stoppage has occurred by concerted action of the defendants, based on false assertions of illness, that this is a strike, and that it has caused serious financial damage to the airline plaintiffs and interferes with their normal operations.

One of the reasons for the federal statute against strikes by federal employees is that the employees are performing an essential service, for the benefit of the public, and also for the segment of the public which the particular employees serve.

The tendency of recent judicial decisions has been to permit private actions for violation of federal statutes.¹ In this case, the damages allegedly incurred by the plaintiff airlines were readily foreseeable by defendants prior to the work stoppage, and are so direct a consequence of the allegedly illegal action that the persons who are directly affected by the work stoppage should have the right to sue for an injunction. I do not have to determine at this time the plaintiffs' right to damages against individual air Controllers or against PATCO.

This is not a suit against the United States, but against individuals and an organization who owe duties to the United States and to the users of airport facilities. The concept of privity no longer has much application to civil actions.² In any case, I will not treat any requirement of privity as a bar to this action.

The right to mandamus against the individual airport Controllers involves questions which I have not yet resolved. But the right to an injunction can be supported by proof of concerted illegal action whose reasonably foreseeable effect is to cause harm to the airlines which cannot be fully remedied by money damages.

The rights of Air Transport Association are not as direct as those of the individual airlines. However, in a suit by thirteen separate airlines, there is need for some centralized control in the interest of efficient conduct of litigation. One purpose and function of the Air Transport Association is to promote and defend the interests of its several member airlines. This seems to me to justify letting the Association remain as a party as well as its component airlines.

Therefore, the motion to dismiss the complaint for lack of standing is denied, without prejudice to future consideration of the portions of the complaint which seek money damages or mandamus.

Memorandum on Issuance of Temporary Injunction (April 13, 1970)

The order which I am about to sign with the consent of the defendants, disposes of the pending motions for preliminary injunction temporarily, and I hope on a basis that will not require further hearings.

More than forty years ago it was recognized that the labor injunction frequently constituted an abuse of judicial power.³ It may be remembered that Circuit Judge John J. Parker, an eminent jurist, was denied confirmation as a Justice of the United States Supreme Court because he had upheld a "yellow dog" contract,⁴ at a time when United States Supreme Court decisions permitted prohibitions against private employees belonging to a union.⁵

More than a generation ago, the labor injunction was outlawed in private matters except for very limited situations, primarily where it could be used to maintain labor peace while impartial mediation took place.⁶

Although the Norris-LaGuardia Act does not apply to strikes by United States government employees, the court endeavored to apply its principles in this case at the outset. Even the United States must do equity when it seeks the aid of an independent court of equity.⁷

An injunction acceptable to both sides, conditioned on impartial mediation, proved impossible because it was pointed out that PATCO has not been certified as a representative of the air Controllers. At the close of the hearing on Friday, April 10th, it was disclosed that one reason why PATCO's petition for certification has not been granted is that F. A.A. has challenged its status. On the preceding day, the regional Vice President of a rival organization admitted that PATCO now claimed over 400 members from the New York area while the rival organization's membership had declined from 350 to 135.

The federal law makes it a crime for government employee to participate in a strike or to belong to an organization which claims the right to strike, while he is a government employee.⁸

The labor injunction therefore comes back into the public employee situation as a milder means of enforcement than the criminal penalty for strikes, but it comes back in a procedure where the employees do not have the right to a jury trial and where they are not subject to the requirement of proof beyond a reasonable doubt which would exist in the enforcement of a criminal statute.

The labor injunction, even as a substitute for criminal enforcement, should be used only as a last resort.

The present order, which substitutes a temporary injunction for the previous ex parte restraining order, directs the air Controllers to return to work, with a concomitant requirement that their employer, the Federal Aviation Administration, shall permit them to return without any conditions.

The order is based on the consent of the defendants, because I am entering it before they have presented any evidence. It is limited to a three-week period, so that we can determine what the developments are during that period, and whether it will be necessary to take more testimony on the motions for preliminary injunction.

The order is based on the need for urgent resolution of the present work stoppage, and the possibility that long hearings may be necessary to establish whether the individual defendants are in contempt of the temporary restraining order and whether there are circumstances which might mitigate any penalties for violation of the order.

The order is based on the fact that more than three full days of testimony have resulted in showing that the following facts have been established prima facie to the satisfaction of the court, subject to possible rebuttal by the defendants:

1. PATCO is an Iowa corporation organized to represent air Controllers in respect of their compensation and working conditions, and having a place of business within the Eastern District of New York.

2. Since March 25, 1970, the number of absences from work by air Controllers on account of alleged illness has increased from the normal average of 4% to a total of more than 60% at...