Air Transport Ass'n v. PROFESSIONAL AIR TRAFFIC

• Decision Date: 17 July 1978
• Docket Number: No. 70 Civ. 400.,70 Civ. 400.
• Citation: 453 F. Supp. 1287
• Parties: AIR TRANSPORT ASSOCIATION OF AMERICA et al., Plaintiffs, v. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION ("PATCO") et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

453 F. Supp. 1287

AIR TRANSPORT ASSOCIATION OF AMERICA et al., Plaintiffs, v. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION ("PATCO") et al., Defendants.

No. 70 Civ. 400.

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

July 17, 1978.

Poletti, Freidin, Prashker, Feldman & Gartner, by Herbert Prashker, New York City, for plaintiffs.

Barr & Peer, by William B. Peer, Washington, D. C., for defendants.

MEMORANDUM AND ORDER

PLATT, District Judge.

By an order to show cause with an affidavit annexed, dated May 26, 1978, and by subsequent notice of motion seeking to amend their original motion, and a stipulation dated June 22, 1978, which was so ordered by this Court on June 23, 1978, plaintiffs have moved for an adjudication that the defendant, Professional Air Traffic Controllers Organization ("PATCO"), be held in civil contempt of Court for violating and disobeying the final judgment of this Court filed on September 9, 1970, by virtue of alleged slowdowns by air traffic controllers, on May 25 and 26, 1978, and June 6 and 7, 1978, and for an order requiring PATCO, in accordance with the aforesaid judgment of September 9, 1970, to pay to the plaintiffs the sum of $25,000 for each day, or part thereof, during which such violations have occurred.

Defendant PATCO has itself made a motion to vacate plaintiffs' order to show cause and to dismiss plaintiffs' application on the grounds that this Court's final judgments of September 9, 1970 and October 20, 1972 "do not apply to or restrain the conduct alleged against defendant PATCO which is extant".

Prior to the hearing of the above motions, as indicated above, the parties entered into a Stipulation Re Motion for Contempt on June 22, 1978, which this Court so ordered on June 23, 1978, which provides in pertinent part as follows:

"The plaintiffs' aforesaid motions for an adjudication in contempt are by this stipulation amended to claim the following violations: violations by PATCO of the aforesaid injunction of September 9, 1970 by virtue of slowdowns on May 25 and 26 and on June 6 and 7, 1978.

"PATCO asserts, and by this stipulation retains its right to assert, that the aforementioned injunction against PATCO was not valid and effective as against PATCO on May 25 and 26, 1978 and on June 6 and 7, 1978.

"If it be determined by this Court that the aforesaid injunction against PATCO was valid and effective on the aforesaid dates, it is agreed that for purposes of this motion only, and without prejudice to PATCO's reserved rights under paragraph 7, PATCO shall be deemed to have disobeyed the prohibitions of said injunction with respect to slowdowns by air traffic controllers on May 25 and 26, 1978 and June 6 and 7, 1978.

"Upon an adjudication that the said injunction was valid and effective against PATCO on May 25 and 26, 1978 and on June 6 and 7, 1978, and that PATCO is, by agreement of the parties, deemed to have disobeyed the said injunction with respect to slowdowns on said dates, as provided by paragraph 8, the Court shall enter judgment requiring PATCO to pay the Air Transport Association of America the sum of One Hundred Thousand ($100,000) Dollars (that is, Twenty-Five Thousand ($25,000) Dollars with respect to each of the aforesaid four days, as provided in the aforesaid judgment of September 9, 1970), the plaintiffs waiving, as against the defendants and defendant PATCO's officers, directors, members and constituent bodies, any other claim for damages, costs or attorneys' fees in addition to said stipulated sum for any slowdowns occurring to and including June 20, 1978."

Thus, this stipulation in essence provides that (i) plaintiffs' motion be deemed amended to seek contempt adjudications from this Court only as to May 25 and 26, 1978, and June 6 and 7, 1978, and (ii) defendant PATCO concedes, for the purposes of plaintiffs' contempt motion only, that if this Court shall decide that its prior aforementioned orders do "apply to or restrain the conduct alleged against defendant PATCO", PATCO shall be deemed to have disobeyed the September 9, 1970 order on those dates and shall pay plaintiff $100,000 in accordance with the terms of that order.

The effect of this stipulation then is to leave for this Court to decide only the question whether its prior orders do presently "apply to or restrain the conduct alleged against defendant PATCO."

In resolving this question, it is necessary first to examine the history of this action.

In the words of my late and highly esteemed colleague Judge Orrin G. Judd, in Air Transport Association v. Professional Air Traffic Controllers Organization, 313 F.Supp. 181, 183 (E.D.N.Y.), vacated in part 438 F.2d 79 (2d Cir. 1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1373, 28 L.Ed.2d 661 (1971), the original complaint in this proceeding

"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. § 1918. . . ."¹

"The complaint alleges that an illegal work stoppage has occurred by concerted action of the defendants PATCO and individual air traffic controllers, 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."

On the date of the complaint, March 30, 1970, Judge Judd signed an order to show cause, bringing on a motion for preliminary injunction, with a temporary restraining order which provided that until April 9, 1970, defendants be restrained, inter alia, "from . . . conducting, continuing or engaging in any strike or other concerted failure by Air Traffic Controllers employed by the Federal Aviation Agency . . . to report for work or perform work, by concerted `sick call' or otherwise, or in any concerted slowdown in the performance of their work."

The defendants having refused to obey such restraining order, plaintiffs on April 6, 1970, moved by further order to show cause to hold defendants in contempt of Judge Judd's restraining order.

On April 9, 1970, Judge Judd continued the temporary restraining order for an additional ten days, changing the language of the prohibition clause to read, in pertinent part, that defendants were restrained from:

". . . in any manner continuing, encouraging, ordering, engaging, obstructing, aiding or taking part in work stoppage or slowdown or any interference with or obstruction with the movement or operation of any aircraft and air commerce or air transportation at any traffic facility operated by the Federal Aviation Administration, or interference with or obstruction to the application of the safety standards and procedures established by the FAA for the regulation and control of air traffic in the United States of America."

This language was carried forward without material change into an order of temporary injunction entered April 13, 1970, which was extended by order dated April 20, 1970, and in an order of preliminary injunction entered after a hearing on May 5, 1970.

On or before April 14, 1970, defendants' "assertions of illness" had come to an end, leaving for determination by this Court plaintiffs' application for a permanent injunction and plaintiffs' claims for damages arising from defendants' alleged violation of the law and from defendants' alleged breach of the Court's injunction order.²

Negotiations ensued between the parties in which they sought to resolve their differences and to settle the lawsuit. On August 24, 1970, counsel for PATCO submitted a written settlement proposal pursuant to which "PATCO, its officers and members would consent to a permanent injunction" which, among other things,

"would restrict, prohibit and enjoin PATCO, all members of the Professional Air Traffic Controllers Organization, their officers, agents, and employees, from acting in concert or participating in, calling, causing, authorizing, inducing, etc. any strike or other concerted failure of air traffic controllers employed by the Federal Aviation Agency to perform, to work,or report for work in any concerted slowdown in the performance of their work." (Emphasis added.)

It is significant to note first that the 1970 dispute involved "false assertions of illness" and second that the above draft was prepared by the attorneys for PATCO, not the attorneys for the plaintiffs.

Further discussions followed and on September 9, 1970, the parties entered into a stipulation of settlement which provided, in pertinent part, for plaintiffs' waiver of its damage claims against defendants and for a final judgment of permanent injunction which prescribed that:

"PATCO, its officers, agents, employees and members, its successors or assigns, and any other person acting in concert with it or them, is permanently prohibited and enjoined from, in any manner, calling, causing, authorizing, encouraging, inducing, continuing or engaging in any strike (including any concerted stoppage, slowdown, or refusal to report to work) by air traffic controllers employed by an agency of the United States, or any other concerted, unlawful interference with or obstruction to the movement or operation of aircraft or the orderly operation of any air traffic control facilities by any agency of the United States."

and that

"in the event the defendant PATCO shall itself engage or participate in any action which violates the terms of paragraph `1' of this judgment, PATCO shall be required to pay to the plaintiff Air Transport Association of America, Inc., or to its assignee or assignees, the sum of twenty-five thousand dollars ($25,000) for each day, or part thereof, during which such violation by said defendant continues, said obligation to be in addition to and without prejudice to any other rights which plaintiffs or any of them, may

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