416 F.2d 1169 (5th Cir. 1969), 26333, Mungin v. Florida East Coast Ry. Co.

Docket Nº:26333.
Citation:416 F.2d 1169
Party Name:Nehemiah MUNGIN et al., Appellants, v. FLORIDA EAST COAST RAILWAY COMPANY, Appellee.
Case Date:September 22, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1169

416 F.2d 1169 (5th Cir. 1969)

Nehemiah MUNGIN et al., Appellants,

v.

FLORIDA EAST COAST RAILWAY COMPANY, Appellee.

No. 26333.

United States Court of Appeals, Fifth Circuit.

Sept. 22, 1969

         Rehearing Denied Oct. 16, 1969.

Page 1170

         Richard L. Horn, Allan Milledge, Milledge & Horn, Miami, Fla., for appellants.

         Granville M. Alley, Jr., Edward J. Dinkel, III, Alley & Bush, Ronald D. McCall, Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, Fla., for appellee.

         Before JOHN R. BROWN, Chief Judge, AINSWORTH, Circuit Judge, and FULTON, District Judge.

         JOHN R. BROWN, Chief Judge:

         Now rounding out a decade of industrial strife as the Nation's longest railroad strike against FEC, the history of which has been memorialized in a dozen or more Court opinions, 1 the tenth year of that turmoil one again puts Judges in the 'locomotive cab.' Op (1) p. 182. This time the task is easy-- just getting the case back on the main line from a derail siding to which the Trial Judge's dismissal shunted it. There is nothing new here at all. Nominally the Appellants-- individual workers-- appear for the first time, but not really since their interests were directly presented both below and here in the Government's successful injunction suit against FEC. Ops (2), (3). The claim is the old and judicially credited one that FEC in unilaterally changing 'rates of pay, rules, or working conditions' violated § 2, Seventh and§ 6 of the Railway Labor [ ,« Act. 2

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The only thing new is that it is the individual members of the Union, 3 and not IARE as an entity or the national sovereign, that pursue FEC. Although this newness is so slight it is barely a ripple, much less a wrinkle, cf. Mike Hooks, Inc. v. Pena, 5 Cir., 1963, 313 F.2d 696, 1963 A.M.C. 355, apparently it threw the switch that derailed the case into dismissal. We say apparently, for once again dismissal is by an unrevealing skeleton of an order 4 unillumined by any stated reasons except as they might be deciphered from the law's hieroglyphics-- a few cited precedents. But vague as it is, it is plain enough to reveal its own error and we reverse.

         Capsulating the background aids in considering the claims made in the complaint. 5 In doing so we draw freely 6 on the Complaint, the Findings of Fact and Conclusions of Law, and the Injunctive Decree in the Government's suit against FEC. Ops (2), (3). The activities began on January 23, 1963 when 11 non-operating unions 7 went on strike against FEC. The operating unions did not strike. They did, however, honor the picket lines. FEC was forced to shut down by the strike, but, only stunned lightly, it resumed operations on February 3 by utilizing supervisory personnel and some replacement workers. Since February 3, 1963 the strike has continued but FEC has continued its operations at almost full steam using a work force less than half the size of its pre-strike level. FF 7, 8.

         Now enters the Railway Labor Act, for on July 31, 8 and September 24, 1963 9 FEC issued § 6 notices to 17 craft unions. 10 In between, on September 1,

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FEC, without filing any § 6 notice, issued what it called 'Conditions of Employment,' which merely codified the rules that strikebreaking employees had been working under since February 3. By these 'Conditions' FEC unilaterally adopted a uniform set of rates of pay, rules, and working conditions, which were substantially different from the existing collective bargaining agreements. 11

         This was of extreme importance, for the September 24 § 6 notice 12 proposed to amend the collective bargaining agreements then in force and replace them with a new 'Uniform Working Agreement,' which was substantially the same as the September 1 'Conditions of Employment.' The proposals were put into effect by FEC without compliance with the Railway Labor Act's mediation requirements. 13

         This brings us to the specific problem of IARE and its members as related by the complaint (see note 5, supra).

         IARE is a party to a collective bargaining agreement with FEC which was in force on January 23, 1963. At the time of commencement of the strike FEC notified IARE that the position of fireman was abolished. Not long after operations were resumed on February 3, 1963, IARE was notified that its members were furloughed until further notice. Shortly thereafter firemen's jobs were advertised by FEC, but when IARE members submitted their bids to work, they were again told that the jobs had been abolished. A similar process of job advertisement, bid, and abolition occurred in November 1963.

         In the meantime an operating Brotherhood 14 and the Government 15 had obtained injunctive orders against FEC. The Government injunction was sweeping in terms and extended to all crafts identified in the Court's footnotes 1, 2, and 3 (see notes 7, 8, 9 supra) including IARE. FEC was restrained from continuing in effect or implementing the changes announced in the September 24 and July 31 notices, from taking any action under the September 1 'Conditions of Employment,' from making other changes in rates of pay, rules, or working conditions covered by existing collective bargaining agreements except in accordance with the procedures of the RLA. FEC was ordered to revoke all action taken under the notices and statement, to reinstate the provisions of the collective bargaining agreements, and to bargain in good faith. 16

Page 1173

But despite this Government injunction, the Complaint went on, FEC presumably trying to show compliance with it, advertised some firemen's jobs and accepted some bids. By the institution of discriminatory physical examinations, however, not only all firemen but virtually all returning operating employees were disqualified from return. 17 But FEC had other weapons in its arsenal. On September 2, 1965, on the eve of Judge Simpson's finding FEC in contempt for this discriminatory examination gambit, 18 FEC obtained and executed an agreement with the IARE president. The president (who under the constitution of that organization did not have authority to sign such an agreement) purported that to agree that the firemen had in fact been physically unfit and purported to settle outstanding disputes with the IARE. Not surprisingly that agreement was set aside as null and void in its entirety on August 8, 1967. 19 But that helped little for since the execution of the 1965 illegal agreement, the few firemen allowed to return to work have been forced immediately to take a promotion to engineer, 20 and no one has been permitted to work as a fireman since that time.

         The complaint winds up with wholly unnecessary but now time and time again judicially credited, charges 21 in railroad

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legalese, that FEC by this course of conduct has violated § 2, Seventh and § 6 of the Railway Labor Act and has abrogated the collective bargaining agreement in effect between FEC and IARE. 22

         Jurisdiction was formally claimed to exist under 29 U.S.C.A. § 1331 23 as a federal question with more than $10,000 in dispute, and under § 1337 as a case arising under a commerce law. 24

         Although, for the reasons we state, the question of jurisdiction is to us very simple, we expand the factual treatment and our reasons because Judge Scott, who has given such careful superintendence to his railroad duties, Op (1) p. 182, Op (2) p. 686, as successor to Judge Simpson 25 apparently was overly influenced by two factors troubling to him. The first was that the suit was by employees, not by a union, and the second was that the relief formally prayed for was a money award. As a part of the second, there was the emphasis, repeated several times in the complaint, 26 but which our treatment of the Government's suit proves to be demonstrably unfounded, that IARE and its members were not the beneficiaries of any injunction, so that a money award, not contempt, would be the only effective sanction. The Judge was, of course, responding to like advocative contentions made by FEC which took an even more technical turn. Thus, FEC's brief emphasizes that in the allegations 27 there

Page 1175

is an 'absence of any reference to 'backpay' or prayer for maintenance of the 'status quo' (and) * * * the allegations * * * show that the (IARE members) were seeking to recover damages for * * * breach of the contract and the Railway Labor Act.' 28

         There are a number of things wrong with this approach. First, keeping in mind the Conley-Gibson concept (note 5, supra), which permits dismissal on pleadings only when to a certainty no facts can be brought forward on which to base relief, the one thing that is certain from Ops (1), (2), and (3) and the Findings of Fact and Conclusions of Law approved by Ops (2) and (3) is that all of this conduct, of which IARE was but one of several targets or subjects of FEC unilateral action, was in flagrant violation of the Railway Labor Act. Thus, whether the members of IARE seek injunctive relief or not, they can establish this patent violation which resulted in not just a breach of contract but a complete abrogation of the collective bargaining agreement. By Ops (1), (2), and (3) it is clear that for such conduct the courts may grant suitable relief. The second thing wrong with FEC's attack is that once the question of relief is approached, several subsidiary factors become significant. At the outset, subject matter jurisdiction seldom depends on the precise relief sought. The caboose does not run the train. Next, that brings into play F.R.Civ.P. 54(c) 29 which, once an answer or motion is filed, makes relief dependent not on the prayer but on what the facts show to be appropriate. Consequently it is out of keeping both with the spirit of Conley-Gibson (see note 5,...

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