748 F.2d 965 (5th Cir. 1984), 84-3036, Airline Pilots Ass'n, Intern., AFL-CIO v. Taca Intern. Airlines, S.A.

Docket Nº:84-3036.
Citation:748 F.2d 965
Case Date:December 10, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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748 F.2d 965 (5th Cir. 1984)




No. 84-3036.

United States Court of Appeals, Fifth Circuit

December 10, 1984

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[Copyrighted Material Omitted]

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        Fleming & Huck, Joseph Z. Fleming, Miami, Fla., Partee & Waldrip, John B. Waldrip, New Orleans, La., for defendant-appellant.

        Barker, Boudreaux, Lamy, Gardner & Foley, Robert H. Urann, New Orleans, La., Cohen, Weiss & Simon, Stephen B. Moldof, New York City, for plaintiff-appellee.

        Appeal from the United States District Court for the Eastern District of Louisiana.

        Before TIMBERS, [*] POLITZ and RANDALL, Circuit Judges.

        POLITZ, Circuit Judge:

        When TACA International Airlines, S.A. (TACA), in the midst of collective bargaining negotiations, noticed its intent to relocate its pilot base from New Orleans to El Salvador and to impose unilaterally a new labor contract on its employees, the Airline Pilots Association (ALPA) invoked the Railway Labor Act, 45 U.S.C. Secs. 151-188, and petitioned for injunctive relief. Finding TACA in violation of sections 2, 5 and 6 of the Railway Labor Act, 45 U.S.C. Secs. 152, 155 and 156, the district court entered a temporary restraining order followed, after hearing, by a preliminary and permanent injunction prohibiting TACA from relocating the pilot base, unilaterally changing terms of employment, recruiting replacement pilots and interfering with the pilots choice of ALPA as their bargaining agent.

        TACA appeals, joined by the nation state El Salvador as amicus curiae, contending that its actions are authorized by the 1982 Air Transportation Agreement between the United States and El Salvador. TACA further maintains that the act of state doctrine precludes judicial intervention in the controversy and, in any event, its violations of United States law, specifically the Railway Labor Act, are excused by the foreign compulsion defense. Finding no merit in any contention advanced and concluding that the injunction was properly granted, we affirm.


        TACA is incorporated under the laws of El Salvador and four-fifths of its stock is controlled by Salvadorans. The airline flies from El Salvador to Mexico, various nations in Central America, Miami, New Orleans, Houston and Los Angeles. Approximately 62% of the pilots are Salvadoran nationals, many are American citizens and more than one-half live in the United States. All TACA pilots are members of ALPA and regardless of nationality, residence or seniority, all have been based in New Orleans since 1949 when TACA first instituted service between El Salvador and New Orleans. Since 1968, TACA and ALPA have executed successive collective bargaining agreements under the Railway Labor Act.

        In 1969, shortly after the first agreement was reached, TACA and ALPA were involved in litigation very similar to that now before the court. At that time the government of El Salvador requested TACA to relocate the pilot base from New Orleans to El Salvador. When TACA began relocation efforts, ALPA sought injunctive relief, maintaining that if the relocation came to fruition the collective bargaining agreement would be abrogated by Salvadoran law which would bar ALPA's representation of the pilots. The district court agreed and an appropriate injunction issued. On appeal we affirmed, holding in the process that the pilot base dispute was a "major" dispute subject to the court's jurisdiction and not a "minor" dispute resolvable by the Railway Labor Act's adjustment mechanism. Ruby v. TACA International Airlines, S.A., 439 F.2d 1359 (5th Cir.1971).

        Since our decision in Ruby v. TACA, notable events have occurred which make

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the present factual situation different from that earlier presented. We must determine whether those changes mandate a result different from that reached in 1971. In October 1979, TACA and ALPA entered into the most recent collective bargaining agreement, amendable as of December 31, 1983. On April 19, 1982, the governments of the United States and El Salvador executed a civil aviation agreement designed to regulate and promote air transportation between the two countries. In October of 1983, TACA and ALPA, in accordance with the terms of the collective bargaining agreement, began negotiations looking to the amendment and continuation of the current agreement.

        Events continued. On December 20, 1983, El Salvador adopted a new constitution. Article 110, p 4 of that constitution provides in pertinent part:

Salvadoran public service companies will have their work center and base of operation in El Salvador.

        The following day, officials from the Salvadoran Ministry of Labor ordered TACA to move its pilot base to El Salvador. TACA immediately notified its pilots that the pilot base would be moved to El Salvador, that new, individual contracts including substantial changes were to be executed and that ALPA would no longer be recognized as the pilots' bargaining agent. The pilots were given until December 30, 1983 to accept the new terms or lose their employment with TACA. Meanwhile, TACA began advertising for new pilots, preferably Salvadoran, to fly the airline's equipment. ALPA reacted to TACA's actions by seeking the injunctive relief described above.


        We note at the threshold that the parties do not dispute that TACA is in violation of section 2 First, Second, Third, Fourth and Seventh, and sections 5 and 6 of the Railway Labor Act, 45 U.S.C. Secs. 152, 155, 156. TACA's refusal to recognize and bargain with ALPA, and its unilateral attempt to impose a new labor agreement on its pilot employees violate the Railway Labor Act. These same actions were noted as violations in Ruby v. TACA, 439 F.2d at 1363.

        Although subject to the charge of unnecessary iteration, we perhaps should remind that collective bargaining agreements are central to American labor law and are the essential threads of its fabric. In an Oliver Wendell Holmes lecture at Harvard Law School, entitled Reason, Contract, and Law in Labor Relations, published in 68 Harv.L.Rev. 999, 1002 (1955), Dean Harry Schulman observed:

Collective bargaining is today, as Brandeis pointed out, the means of establishing industrial democracy as the essential condition of political democracy, the means of providing for the workers' lives in industry the sense of worth, of freedom, and of participation that democratic government promises them as citizens.

        A few years later Justice Douglas reiterated in United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580, 80 S.Ct. 1347, 1351-52, 4 L.Ed.2d 1409 (1960) (with citations and footnotes omitted):

A collective bargaining agreement...

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