Ruby v. Taca International Airlines, SA

• Decision Date: 24 March 1971
• Docket Number: No. 28773.,28773.
• Parties: Charles H. RUBY, as President of the Air Line Pilots Association, International, et al., Plaintiffs-Appellees, v. TACA INTERNATIONAL AIRLINES, S. A., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.2d 1359 (1971)

Charles H. RUBY, as President of the Air Line Pilots Association, International, et al., Plaintiffs-Appellees, v. TACA INTERNATIONAL AIRLINES, S. A., Defendant-Appellant.

No. 28773.

United States Court of Appeals, Fifth Circuit.

March 24, 1971.

Frederick A. Kullman, Andrew C. Partee, Jr., Kullman, Lang, Keenan, Inman & Bee, New Orleans, La., for TACA International Airlines, S. A.

C. Paul Barker, New Orleans, La., Robert S. Savelson, New York City, Cohen, Weiss & Simon, New York City, Dodd, Hirsch, Barker, Meunier, Boudreaux & Lamy, New Orleans, La., for appellee Air Line Pilots Association, International; Frank M. Aiello, Edward R. Curtin, New York City, of counsel.

Before RIVES, AINSWORTH and MORGAN, Circuit Judges.

AINSWORTH, Circuit Judge:

The Air Line Pilots Association, International (ALPA) and its President, Charles H. Ruby, filed this suit for an injunction under the Railway Labor Act, 45 U.S.C. § 151 et seq., on behalf of the pilots employed by defendant TACA International Airlines (TACA). The District Court held a hearing, rendered findings of fact and conclusions of law, and entered an order for a preliminary injunction restraining TACA from implementing any part of its program to transfer its New Orleans pilot base to El Salvador. TACA appeals, contending that the District Court lacked jurisdiction, that the injunction was overbroad, and that the order should be vacated on the ground that the underlying controversy is now moot. We affirm the order.

I. Background

TACA International Airlines, S. A., is incorporated under the laws of El Salvador. Its flights connect points on the Gulf Coast of the United States with points in Central America. Since approximately May of 1949, when TACA instituted service between New Orleans, Louisiana, and El Salvador, all pilots in its employ have been based at New Orleans. Almost all are citizens of the United States, domiciled in Louisiana.

On April 6, 1968, in accordance with the provisions of the Railway Labor Act ("the Act"), ALPA and TACA entered into a collective bargaining agreement governing the rates of pay, rules and working conditions of the TACA pilots. Section 30 of the agreement, titled "Duration," provides that the agreement will continue in full force and effect through December 31, 1969, and thereafter, unless written notice of intended change is served by either party at least 60 days prior to December 31, 1969, or thereafter, in accordance with Section 6 of the Act, 45 U.S.C. § 156.¹ No notice of proposed termination as such has been filed by either party.

TACA now seeks to transfer the New Orleans pilot base to San Salvador, El Salvador. The pilots contend, and the District Judge found, that if the base is transferred, Salvadorean law will bar ALPA from continuing to function as collective bargaining representative for the TACA pilots, and the TACA-ALPA agreement of April 1968 will be nullified. The pilots further contend that these consequences furnish the carrier's principal motive for the move. TACA maintains that the move has independent justifications; in particular, it points out, the Salvadorean government has requested that the move be made.

In April of 1969 TACA began recruiting and training pilots to replace those pilots then in its employ who might refuse to transfer to El Salvador. In letters to the pilots in June and July of 1969, TACA served notice that any incumbent pilot who refused relocation would be fired and replaced. None of the pilots signified consent to relocation. Instead, through ALPA, the pilots sought to have the carrier withdraw its demand, or give written notice of an intended change in rules and working conditions pursuant to Section 30 of the agreement and Sections 2 Seventh and 6 of the Railway Labor Act. TACA declined to change its position, and ALPA brought this suit.

The principal issue in the District Court was whether the pilot base controversy constituted a "major" or a "minor" dispute.² ALPA contended that it fell within the provisions of Sections 2 Seventh and 6 of the Act, 45 U.S.C. §§ 152, 156, and hence was subject as a "major" dispute to the jurisdiction of the District Court. TACA countered that the dispute was "minor" in that it turned on the interpretation to be given to certain provisions of the agreement, and that hence only a system board of adjustment established pursuant to 45 U.S.C. § 184³ could assume jurisdiction. The District Judge concluded that the dispute was major, and further that the carrier's course of conduct constituted a refusal to bargain in good faith with ALPA and an attempt to "influence, interfere with and coerce its pilots in the exercise of their rights to ALPA collective bargaining representation, and the right of ALPA to represent said craft or class," in violation of Sections 2 and 6 of the Act. On the basis of these preliminary findings, the Judge ordered TACA to (1) withdraw its notice to the pilots conditioning future employment on acceptance of removal to El Salvador; (2) take no action in furtherance of removal until it filed a Section 6 notice; (3) suspend its pilot replacement program; and (4) do nothing to "in any way influence, interfere with or coerce TACA pilots in their choice of ALPA as their collective bargaining representative * * *."

From this order, which remains in effect "pending final determination of the action," TACA appeals.

II. Mootness

On October 27, 1969, subsequent to the rendering of the judgment of the District Court, TACA and ALPA each filed with the other a Section 6 notice respecting the proposed pilot base relocation. In response to this Court's query as to the legal significance of that exchange, TACA filed a post-argument brief in which it takes the position that this case is now moot.

The thrust of TACA's argument is that with the exchange of Section 6 notices the dispute, whatever it had been before, became a major dispute; that at that point TACA became bound under Section 6 to preserve the status quo on pilot base location; and that TACA firmly intends to respect its obligation under the Act. TACA argues that there is now an "absolute want of present actuality" in the controversy adjudicated below, United States v. Hamburg-American S. S. Co., 239 U.S. 466, 475, 36 S.Ct. 212, 216, 60 L.Ed. 387 (1916). Hence, it concludes, the District Court order should be vacated, and the appeal dismissed.

We disagree. Though the parties apparently agree that the pilot-base dispute is now a major dispute, TACA does not suggest that a consensus exists as to the consequences — i. e., the specific constraints to which TACA would be legally subject if the injunction were dissolved. Cf. United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953); Walling v. Helmerich & Payne, 323 U.S. 37, 42-43, 65 S. Ct. 11, 14-15, 89 L.Ed. 29 (1944); United States v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416, 448. Moreover, the carrier's argument conveniently ignores the fact that the injunction was designed not only to particularize TACA's Section 6 obligations, but to curtail its interference with ALPA's representation of the pilots and to put an end to its refusal to bargain in good faith. TACA has not borne its burden of showing that "there is no reasonable expectation that these wrongs will be repeated," United States v. W. T. Grant Co., supra, 345 U.S. at 633, 73 S.Ct. at 897. It has not expressly or implicitly abandoned its original objections to the District Court order.⁴ We hold that a justiciable controversy remains.

III. District Court Jurisdiction

TACA contends that the pilot-base controversy, as it stood in the court below, was a minor dispute over which the District Court had no jurisdiction. We hold that the Court had jurisdiction over the dispute and the power to grant the pilots injunctive relief.

It has been generally held that the special boards of adjustment provided for in the Railway Labor Act have "exclusive jurisdiction" over minor disputes. See, e. g., International Ass'n of Machinists v. Eastern Airlines, Inc., 5 Cir., 1963, 320 F.2d 451; Hilbert v. Pennsylvania Railroad Company, 7 Cir., 1961, 290 F.2d 881, cert. denied, 368 U. S. 900, 82 S.Ct. 174, 7 L.Ed.2d 96 (1961); cf. Order of Railway Conductors v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed.2d 318 (1946). The Act does not in terms require carriers to maintain the status quo pending resolution of minor disputes. A federal court may impose such a requirement as a condition to an injunction restraining a union from striking a carrier, see Brotherhood of L. E. v. Missouri-Kansas-T. R. Co., 363 U.S. 528, 534, 80 S.Ct. 1326, 1330, 4 L.Ed.2d 1379 (1960); Piedmont Aviation, Inc. v. Air Line Pilots Ass'n, Internat'l, 4 Cir., 1969, 416 F.2d 633, cert. denied, 397 U.S. 926, 90 S.Ct. 924, 25 L.Ed.2d 105 (1970); or where otherwise necessary to preserve the jurisdiction of a board of adjustment over a minor dispute already submitted to it, see Southern Ry. Co. v. Brotherhood of Locomotive Fire. & Eng., 1967, 127 U.S. App.D.C. 371, 384 F.2d 323; Westchester Lodge 2186, Etc. v. Railway Express Agency, Inc., 2 Cir., 1964, 329 F.2d 748. In the instant case, neither of these exceptions applies; thus the jurisdiction of the District Court depends in part on whether the pilot-base controversy is a minor or a major dispute.

This Court has held that a dispute is a major dispute if it concerns an action by a carrier which (1) falls within the class defined in Section 2 Seventh or Section 6 of the Act, and (2) is not arguably authorized by the existing agreement between the parties. See United Indus. Wkrs. of Seafarers, Etc. v. Board of Trustees, 5 Cir., 1965, 351 F.2d 183, 188-192 (the "Galveston Wharves case"); cf. International Bhd. of Teamsters v. Braniff Internat'l Airways, Inc., 5 Cir., 1971 437 F.2d 1272; Railway Express Agency, Inc. v. Brotherhood of Railway Clerks, 5 Cir., 1971, 437 F.2d 388.⁵ The proposed pilot...