BROTHERHOOD OF LOCOMOTIVE F. & E. v. Central of Ga. Ry. Co.

• Decision Date: 02 May 1969
• Docket Number: No. 23815.,23815.
• Citation: 411 F.2d 320
• Parties: BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, its lodges, officers and employees thereunder, Appellant, v. CENTRAL OF GEORGIA RAILWAY COMPANY and Southern Railway Company, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

411 F.2d 320 (1969)

BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN, its lodges, officers and employees thereunder, Appellant, v. CENTRAL OF GEORGIA RAILWAY COMPANY and Southern Railway Company, Appellees.

No. 23815.

United States Court of Appeals Fifth Circuit.

May 2, 1969.

Ralph L. Crawford, John R. Calhoun, Savannah, Ga., Harold C. Heiss, Donald W. Bennett, Heiss, Day & Bennett, Cleveland, Ohio, Alex Elson, Aaron S. Wolff, Elson, Lassers & Wolff, Chicago, Ill., for appellant.

John B. Miller, Julian C. Sipple, Savannah, Ga., Wilbur D. Owens, Jr., Charles J. Bloch, Macon, Ga., James H. Wilson, Jr., Clay C. Long, Atlanta, Ga., for appellees; Hitch, Miller, Beckmann & Simpson, Lawton, Sipple & Chamlee, Savannah, Ga., Bloch, Hall, Groover & Hawkins, Macon, Ga., Sutherland, Asbill & Brennan, Atlanta, Ga., of counsel.

Before JOHN R. BROWN, Chief Judge, and AINSWORTH and GODBOLD, Circuit Judges.

JOHN R. BROWN, Chief Judge:

MERITS

This controversy had its genesis in Germany in 1858 when Rudolf Diesel was born. The engine which was later named after this noted automotive engineer revolutionized the conversion of chemical to mechanical energy. His small, efficient engine was quickly adopted by industry and is today found on all the highways and railroads of this country and throughout the world. And therein lies the rub. When the Nation's railroads started using the diesel engine, they stopped using the steam locomotive's firemen, or so they thought. Since diesel fuel need not be shoveled, and the diesel fire need not be tended, the coal-shoveling, fire-tending firemen of the nineteenth century were soon to become superfluous.

They are a strong and powerful lot, however, and are vigorously represented on the National front by the Brotherhood of Locomotive Firemen and Enginemen (BLFE) in their struggle with the railroads to perpetuate their use on diesel locomotives. This basic confrontation between men and technology has locked this Nation in one of the longest and most bitterly fought labor disputes in the country's history. Courts across the land have been struggling with this clash of interests with little, if any, success but with an experience-proved recognition that the "genie cannot be put back into the bottle" Op. 1 600.

We have here but a small and wholly unnecessary portion of this running controversy. By drawing freely on Judge Leventhal's monumental opus in the merits opinion for the District of Columbia Circuit as well as the related contempt decision we may severely capsulate the facts with the caveat that the details, if needed, may be found there.¹ Additionally, some of the details come out in our contempt decision reversing the criminal contempt decision of BLFE.²

Not surprisingly, the contemporary dispute arises out of a settlement of the irrepressible controversy. The problem began when the Carriers and BLFE voluntarily entered into the National Diesel Agreement in 1950, providing that firemen should be employed on substantially all locomotives. In 1959, the Carriers filed a § 6 notice pursuant to the Railway Labor Act (45 U.S.C.A. § 156) in an attempt to eliminate firemen from certain locomotives. After numerous attempts at mediation and conciliation, and on the eve of a threatened nation-wide railway strike, Congress in 1963 enacted Public Law 88-108 (77 Stat. 132) which required transitory compulsory arbitration and set up Special Arbitration Board No. 282. The Arbitration Board promulgated Award 282 in November 1963, which made sweeping orders concerning the use of firemen on locomotives (and some "crew consist" problems not involved here). As permitted under the enabling Act (P.L. 88-108) by agreement between the Carriers and BLFE, the expiration date of Award 282 was fixed at 12:01 a. m., March 31, 1966. But the two-year period did not bring the hoped-for peaceful solution nor did it precipitate hoped-for bargaining, just more litigation and as the expiration date approached, all sorts of skirmishes by which the adversaries hoped the expiration might bring more advantageous positions than would bargaining. The "legal" argument centered about the Brotherhood's contentions that Award 282 expired fully and finally on E-day, and the Carriers' reflex claim that Award 282 endured until changed by the parties. (See Op. 1 p. 592).

In November 1965, in anticipation of the expiration of the Award, BLFE served three separate § 6 notices on the Carriers, proposing a new agreement concerning the use of firemen.³ The Carriers riers made the double track contention that the Notices were premature and that No. 2 and No. 3 were not even proper subjects for bargaining.⁴ But not to be outdone they made "just in case" (Op. 1 p. 592) § 6 notices. BLFE and the Carriers were unable to reach agreement. On March 24, 1966, the Nation's Class I railroads filed suit in the United States District Court for the District of Columbia⁵ seeking declaratory and injunctive relief. On March 28, 1966, Judge Holtzoff, of that Court, issued a temporary restraining order against BLFE prohibiting a strike upon the expiration of the Award. At 12:01 a. m. on March 31, 1966, BLFE initiated a strike against the Central of Georgia (Georgia Central) and other railroads. Southern was affected in that some of its personnel would not cross the Georgia Central picket lines. Later on March 31, Judge Holtzoff expanded his restraining order to cover any strikes in any way relating to the Award. (Op. 2 p. 574) On the same day, Georgia Central and Southern sought injunctive relief against BLFE in the United States District Court for the Southern District of Georgia. The District Court in Georgia also issued a temporary restraining order on March 31, 1966.

It rounds out the picture to state here that the strike was terminated on late Sunday April 3, 1966. (Op. 2 p. 574) And nothing except the Georgia criminal contempt proceeding of April 4, (See note 2) is shown by our record to have taken place in the Georgia case down to about May 12 to 16. But much was taking place under Judge Holtzoff's direction with full relief being accorded the Carriers both as to the there-pending civil-coercive contempt⁶ and the merits. (Op. 1 pp. 592, 600.) On May 12, 1966, Judge Holtzoff entered a judgment in accordance with his opinion in Bangor and Aroostook R. R. Co. v. Brotherhood of Locomotive Firemen and Enginemen, D. C., 253 F.Supp. 682 permanently enjoining BLFE and each of its lodges, divisions, locals, officers, and agents, and all persons acting in concert with them from engaging in any strikes or work stoppages or from picketing the premises of any of the railroads with respect to the failure or refusal of any carrier to confer, bargain, negotiate, participate in mediation or otherwise participate in proceedings under the Railway Labor Act with respect to Notice Nos. 1 and 2 or the failure or refusal of any carrier prior to the expiration of the Award to confer, bargain, negotiate, or participate in mediation with respect to Notice No. 3.

Without the slightest whisper of a suggestion of a remote possible reason why, with the strike terminated and the threat of all renewed action being positively enjoined by Judge Holtzoff's final order of May 12, the Georgia District Court on May 16 entered a preliminary injunction dated May 12 (F.R.Civ.P. 79(a)) which is the subject of this appeal. Except that it zeroed in for local railroads against localized Brotherhood representatives it was a virtual ditto of Judge Holtzoff's. It enjoined BLFE, and each of its lodges, divisions, locals, officers, and agents, from authorizing, calling, encouraging, permitting or engaging in any strike or work stoppage against Georgia Central or Southern and from picketing the premises of either Georgia Central or Southern in a resumption of the strike against Georgia Central which commenced March 31, 1966, or over any dispute as to the effect of the expiration of Award 282 or over any dispute arising out of any of the proposals served by BLFE on the Carriers.

The Brotherhood appeals from this preliminary injunction of May 16, 1966, with two principal attacks. The first is the procedural one complaining of duplicate litigation in both Georgia and the District of Columbia. The second goes to the merits including the validity of the § 6 notices and the prohibitive effect of the Norris-La Guardia Act.⁷

We need not consider the second group on the merits (see items 2 through 7, note 7 supra) for two reasons. The first is that, for reasons to be discussed, we get this case out of Georgia, where it never should have been, by sending whatever remains of the case to the D.C. District Court. Second, both Georgia Central and Southern were and are formal parties to the D.C. litigation. Each is irretrievably bound as to every issue determined by that Court and the Court of Appeals for the District of Columbia. This includes, among others, the timeliness of the § 6 Notices 1, 2, and 3 and the validity of Nos. 1 and 2 (Op. 1 pp. 597, 599, 600-603), and the application of the Norris-LaGuardia Act both as to § 4 and § 8 (Op. 1 pp. 600-604, 613-614).⁸

As we dispose of this case we do not have to assay the actions in terms of the initial restraining order of March 31 (which was a parallel of Judge Holtzoff's of the same day). We concentrate on the preliminary injunction entered May 16.

Nothing illustrates better the utter uselessness of this entire proceeding than the Carrier's complaint filed in the District Court in Georgia. "This matter was litigated before the Honorable Alexander Holtzoff, United States District Judge, District of Columbia, in the case of Bangor and Aroostook Railroad Co., et al versus Brotherhood of Locomotive Firemen and Enginemen, C.A. 777-66. He held with the railroads and by order dated March 28, 1966, restrained and enjoined defendants from causing a work stoppage. A copy of the pertinent part of said order is attached hereto, marked Exhibit `A'." More than...