695 F.2d 668 (2nd Cir. 1982), 423, Local 553, Transport Workers Union of America, AFL-CIO v. Eastern Air Lines, Inc.

Docket Nº:423, Docket 82-7622.
Citation:695 F.2d 668
Party Name:LOCAL 553, TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, Plaintiff-Appellee, v. EASTERN AIR LINES, INC., Defendant-Appellant.
Case Date:December 17, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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695 F.2d 668 (2nd Cir. 1982)




EASTERN AIR LINES, INC., Defendant-Appellant.

No. 423, Docket 82-7622.

United States Court of Appeals, Second Circuit

December 17, 1982

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[Copyrighted Material Omitted]

Argued Sept. 17, 1982.

As Amended Feb. 1, 1983.

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Stanley Futterman, New York City (Carmel P. Ebb, Poletti Freidin Prashker Feldman & Gartner, New York City, on the brief), for defendant-appellant.

Victor Rabinowitz, New York City (Katherine Stone, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, on the brief), for plaintiff-appellee.


NEWMAN, Circuit Judge:

This case presents numerous issues that arise when a District Court orders preliminary injunctive relief in a labor dispute arising under the Railway Labor Act (RLA). 45 U.S.C. Secs. 151-188 (1976 & Supp. IV 1980). In an August 16, 1982, decision, 544 F.Supp. 1315, the District Court for the Eastern District of New York (Charles P. Sifton, Judge) granted the motion of plaintiff-appellee Local 553, Transport Workers Union of America, AFL-CIO, for preliminary injunctive relief pending the Court's adjudication of the merits of the union's claim that defendant-appellant Eastern Air Lines had violated the Railway Labor Act by assigning non-union flight attendants to certain newly acquired South American routes. After determining that Local 553 was likely to succeed on the merits of its claim and that the use of non-union flight attendants would cause the union irreparable harm pending the outcome of the litigation, the District Court preliminarily ordered Eastern to take actions designed to alleviate the irreparable harm to the union. We conclude that the District Court acted within its discretion in determining that some preliminary relief was warranted. We further conclude that neither section 7 nor section 8 of the Norris-LaGuardia Act, 29 U.S.C. Secs. 107, 108 (1976), presents a bar to injunctive relief in this case. However, we do not approve the form of relief that was ordered and therefore modify the terms of the injunction.


On April 22, 1982, Eastern informed Local 553 that the airline might purchase a system of South American routes from financially troubled Braniff Airlines. Eastern told the union that, if the purchase went through, the company would be obliged by the law of several South American countries to retain Braniff's South American flight attendants who were nationals of those countries. From the start, the union opposed the hiring of foreign flight attendants who would not be covered by the union contract and who would be paid substantially lower wages than union members. Notwithstanding the union's opposition, on April 26 the two airlines signed an agreement under which Eastern would acquire the Braniff routes and employ approximately 340 former Braniff flight attendants from Peru, Panama, Colombia, Argentina, and Chile. The Civil Aeronautics Board approved the agreement on April 27, and Eastern planned to begin flying the routes on June 1. But when Braniff filed for bankruptcy on May 13, Eastern was forced to accelerate its plans and began flying the routes on May 14. The former Braniff flight attendants were assigned to

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roughly half of the positions on these new Eastern flights. 1

This dispute over the hiring of Braniff's flight attendants occurred while Eastern and Local 553 were in the midst of renegotiating their collective bargaining agreement. The previous Eastern-Local 553 agreement had expired on March 31, 1982, after each side had given notice more than sixty days earlier that it wanted to change certain terms of the agreement. See Agreement Between Eastern Air Lines, Inc. and the Transport Workers Union of America, Local 553, Sec. 33 (Feb. 29, 1980) [hereinafter cited as Eastern-Local 553 agreement]. Under the RLA, Eastern was obliged to maintain the rates of pay, rules, and working conditions of the previous agreement while the parties attempted to negotiate a new contract. See RLA Sec. 6, 45 U.S.C. Sec. 156 (1976).

Between April 22 and May 27, Eastern and Local 553 met repeatedly to resolve the dispute caused by the company's hiring the Braniff flight attendants. A variety of compromises were discussed, and these discussions occasionally merged with the on-going bargaining over the new collective bargaining agreement. But when Braniff's sudden bankruptcy forced Eastern to assume the South American routes on May 14, the discussions faltered. On May 19, the union filed a grievance demanding that Braniff attendants be removed from the South American flights. That grievance was denied by the company and was then referred to the Eastern Air Lines Flight Attendants', System Board of Adjustment for resolution. In the meantime, on May 28, the union filed this lawsuit to enjoin the company from assigning the Braniff flight attendants to the South American routes. Once the suit was filed, the company and the union suspended their efforts to resolve the matter at the bargaining table. The grievance proceeding is still pending before the Adjustment Board.

At the crux of this dispute is the scope clause of the Eastern-Local 553 agreement, section 2(A)(1), which reads:

It is agreed that any and all flying, performed in or for the service of Eastern Air Lines, Inc., will be performed by Flight Attendants whose names appear on the then current Eastern Airlines system seniority list.

According to the union's amended complaint, this scope clause gives Local 553 members the exclusive right to staff all Eastern flights, both domestic and foreign. The company, it was alleged, changed the "rates of pay, rules, or working conditions" of the union flight attendants when it assigned Braniff attendants to the South American routes, thereby violating the status quo requirements of section 6 of the Act, 45 U.S.C. Sec. 156, and precipitating a "major dispute" under section 2, Seventh, of the RLA, 45 U.S.C. Sec. 152, Seventh. Accordingly, the union contended that the District Court had authority to enjoin the company's action. Eastern contended that the contract did not assure Local 553 members the right to bid for flying to be performed by foreign flight attendants based abroad and that the issue was sufficiently in doubt to be only a "minor dispute," that is, a dispute "arising out of ... the interpretation or application of agreements concerning rates of pay, rules, or working conditions." RLA Sec. 2, Sixth, 45 U.S.C. Sec. 152, Sixth.

The District Court denied the union's request for a temporary restraining order, primarily because Eastern's hiring of the Braniff flight attendants did not constitute an immediate and irreparable harm for Local 553. Shortly after this denial, the union moved for a preliminary injunction. On August 16, after conducting eight days of hearings, the District Court issued its decision in favor of the union. The Court ruled that the union had shown a probability of success on its claim that Eastern had changed working conditions by not awarding all the Braniff routes to Local 553 members and thereby had precipitated a major dispute. The Court's preliminary injunction,

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as subsequently clarified at a conference with counsel, ordered Eastern to permit Local 553 members to bid for the highly paid South American routes on the basis of seniority. The company then had a choice whether to let the successful bidders fly these routes or to ground the successful bidders and create an escrow fund from which they would be paid the wages they would have earned by flying these routes, such payment to be made only if the union prevailed in the litigation. Eastern chose the latter option. The District Court had included the option of having the successful bidders for the South American routes fly no routes in order to assure other attendants the opportunity to move up to the routes to which their seniority entitled them once the more senior attendants vacated their second choice routes by successfully bidding for the South American routes as their first choice.

At oral argument on this appeal, we stayed the preliminary injunction, conditioned upon Eastern's adoption of a modified bidding procedure starting in October, which eliminated the prospect of flight attendants drawing pay for not working. 2 Under the modified procedure, which combines an actual bid system with a "paper bid" system, Eastern makes the South American routes available for the normal monthly bidding, but notifies the union membership that the senior attendants who "win" these routes will not fly them. Instead, they will be awarded and assigned to fly their next available preference. Similarly, many other attendants are awarded a route one step lower on each attendant's list of preferences compared to the routes each would have flown if the senior attendants had flown the South American routes. This modified procedure not only avoids keeping

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senior attendants at home but also creates a record from which calculations can be made to determine which routes each attendant would have flown and the extra wages each attendant would have earned if the South American routes had been awarded to the senior attendants. These sums are to be paid if the union prevails in the litigation.


The fundamental issue raised by this suit is whether the controversy between Eastern and Local 553 is a major or minor dispute under the RLA. We note at the outset that, although the distinction between major and minor disputes is central to the RLA, that distinction is imprecise and has plagued courts and commentators over the years. See Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 722-28, 65 S.Ct. 1282, 1289-1292, 89 L.Ed. 1886 (1945); Rutland Railway Corp. v. Brotherhood of Locomotive Engineers, 307 F.2d...

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