450 F.2d 603 (D.C. Cir. 1971), 71-1183, Delaware & H. Ry. Co. v. United Transp. Union

Docket Nº:71-1183.
Citation:450 F.2d 603
Case Date:March 31, 1971
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 603

450 F.2d 603 (D.C. Cir. 1971)




No. 71-1183.

United States Court of Appeals, District of Columbia Circuit.

March 31, 1971

Argued March 12, 1971.

Certiorari Denied June 7, 1971.

See 91 S.Ct. 2209.

Page 604

Messrs. Sheldon E. Bernstein and Lester P. Schoene, Washington, D. C., with whom Mr. Edward D. Friedman, Washington, D. C., was on the pleadings, for appellant.

Mr. Francis M. Shea, Washington, D. C., with whom Messrs. Richard T. Conway, and Ralph J. Moore, Jr., Washington, D. C., were on the pleadings, for appellees.

Before WRIGHT, LEVENTHAL and WILKEY, Circuit Judges.

LEVENTHAL, Circuit Judge:

This action was begun in 1970 by the plaintiffs, some 170 carriers comprising most of the nation's railroads ("carriers"), against four railway labor organizations, after their current national wage and rules dispute had led to a bargaining impasse. The dispute was settled in 1971 as to the three non-operating unions. 1 Following exhaustion of all the governmental processes for resolution of major disputes contemplated by the Railway Labor Act (Act), the carriers filed a supplemental complaint against the United Transportation Union (hereafter Union, or UTU). 2 They sought an injunction against the Union's conducting any selective strike against a few, or some, or less than all the carriers. The District Court granted the carriers' motion

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and issued a preliminary injunction enjoining the Union from calling any selective strikes against the Burlington Northern, Inc. or Seaboard Coast Line Railroad, or against fewer than all the plaintiff carriers. We conclude that the legal premise underlying the District Court's action was in error. We reverse the order granting the preliminary injunction. On remand the District Court will maintain continuing jurisdiction of the cause to consider any issues, and requests for relief, that may develop as to the legality of actions of the Union or the carriers in the conduct of strikes and countermeasures.


On October 20, 1969, 3 the Union served each of the carriers with identical notices pursuant to Section 6 of the Act, 45 U.S.C. § 156, proposing changes in existing national agreements relating to pay. On November 7, the carriers served the Union with a notice containing counter-proposals as to work rules to be bargained about concurrently. On November 20, the Union served notices proposing various wage and fringe benefit adjustments. The Union's notices requested each of the carriers served to advise each carrier that "it is requested that you join with other railroad companies in authorizing a national conference committee to represent you in dealing with the subject."

The parties followed established practice and authorized the dispute to be handled by their national bargaining representatives, which in the case of the carriers meant the National Railway Labor Conference (comprised of three regional Carriers' Conference committees 4), which represents over 90% of the nation's Class I line-haul rail carriers and terminal railroads.

Multi-carrier bargaining by the national representatives of the carriers began March 17, 1970, and continued from time to time thereafter until April 15, 1970, when the conferences were terminated. On April 16, 1970, the carriers applied pursuant to § 5 First of the Act, 45 U.S.C. § 155 First, for the mediatory services of the National Mediation Board ("Board") in connection with all three Section 6 notices referred to above. The same day the Union applied for the Board's services in connection with its notice of October 20 and the carriers' counter-notice of November 7, 1969.

The Board docketed the dispute arising out of the two initial notices in its Case A-8830 on May 19, 1970, and on June 24, incorporated in that docket the dispute arising out of the Union notice served November 20. Mediation commenced on June 30, 1970. The mediation was conducted between the national bargaining representative of the parties on a multi-carrier basis. It failed to produce a settlement. On August 3, in accordance with § 5 First of the Act the Board requested the parties to submit the dispute created by the three Section 6 notices to arbitration pursuant to Sections 7 and 8 of the Act. On August 6 the carriers accepted the proffer of arbitration but the Union declined the proffer. Accordingly, on August 10, 1970, the Board notified the parties that its mediatory efforts had failed and it was that day terminating its services.

The UTU and the three non-operating unions announced their intention to strike the carriers on September 10, 1970. The parties were required by § 5 First to maintain the status quo in their dispute for 30 days after the Board terminated its services. Their national bargaining representatives met during this 30-day period in an attempt to compose their differences. No agreement was reached. While under the Act the parties became free as of September 10, 1970 to exercise the kind of self help authorized by the Act, they agreed to extend

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the status quo through September 14, and to engage in additional negotiations during that period, at the request of and with the assistance of officials of the Board and the Department of Labor.

These efforts failed. On September 15, 1970, three of the Nation's railroads were struck-the Baltimore and Ohio, the Chesapeake and Ohio and the Southern Pacific. Meanwhile, on September 14 the carriers filed their complaint in the case now before us. At 11:40 p. m. on September 14 District Judge Corcoran issued a temporary restraining order, conditioned on a small cash undertaking, enjoining defendants from calling selective strikes on less than all the plaintiff carriers. The motion for preliminary injunction was initially set for September 23. During the course of September 15, the District Court issued an order to show cause why coercive civil contempt fines should not be imposed upon the unions if the strikes were continued. The strikes were terminated and the order to show cause was duly vacated on motion of the carriers. On September 23, the defendant unions filed a motion for prompt trial, which was denied by Judge Pratt by a fiat order entered that day.

Meanwhile the President appointed Emergency Board No. 178, created by Executive Orders 11558 and 11559, issued September 18. Section 10 of the Act requires parties to a major dispute to maintain the status quo until an emergency board reports its recommendations to the President (within 30 days after its creation) and for 30 days after such report is made. The Board convened on September 24, and held public hearings September 30 through October 17, 1970. During the course of the hearings, the parties agreed to request the President to extend, until November 10, 1970, the period in which the Board was to submit its Report. Such extensions for Board consideration have been agreed upon for past disputes. The President granted this request.

Board No. 178 rendered its Report on November 9, 1970. 5 The carriers accepted its recommendations for national agreements settling the disputes. The unions rejected those recommendations. Further national bargaining failed to settle the dispute within the 30-day period following the issuance of the report.

At 2:10 a. m. on December 10, 1970, the President signed P.L. 91-541. This put into effect the wage increases recommended by Board 178 for adoption in 1970 (see note 5), and extended the status quo requirement of Section 10 of the Act so as to provide that no other changes could be made by the parties, except by agreement, prior to 12:01 a. m., March 1, 1971.

It appears that the unions commenced striking the carriers nationally as of 12:01 a. m. on December 10. At 3:17 a. m. the District Court entered an order temporarily restraining such strikes. No contention is made that UTU violated this order.

Following the enactment of P.L. 91-541 further national bargaining ensued and the disputes with the three nonoperating unions were settled by national agreements prior to March 1, 1971, in accordance with the recommendations of Emergency Board No. 178.

The carriers and UTU did not reach an agreement. On March 7, the carriers filed motions for a temporary restraining order and preliminary injunction, stating that they had been made aware that the UTU intended to strike the Burlington Northern and Seaboard Coast Line as of 12:01 a. m. on March 8, and requesting an order prohibiting such selective

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strikes. When counsel appeared before District Judge Corcoran, Judge Pratt not being available, on the afternoon of Sunday, March 7, Union counsel conceded that strikes were scheduled to commence at midnight against these two carriers. It subsequently developed that the UTU had sent the President a letter dated March 6, with copies to three Cabinet members and two members of Congress, advising that it was "calling a peaceful withdrawal from service of all its members" on those two roads on March 8. In any event, in the course of the conference on March 7, the Union counsel, after telephoning the president of UTU, assured Judge Corcoran that no carrier would be struck prior to 2:00 p. m. on March 11, 1971. Accordingly the Judge did not issue a temporary restraining order. On March 10, 1971, after an evidentiary hearing held that day, District Judge Pratt issued a preliminary injunction against selective strikes by the UTU. That Union moved in this court for summary reversal of that order.


Disposition of this appeal requires discussion of substantive legal issues and principles, and we focus on these before turning to such equitable considerations as the propriety of relief in the light of threatened injury and the public interest, and to procedure...

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