Alton & So. Ry. Co. v. International Ass'n of Mach. & AW

• Decision Date: 11 April 1972
• Docket Number: No. 24217.,24217.
• Parties: ALTON & SOUTHERN RAILWAY COMPANY et al. v. INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, Sheet Metal Workers' International Association, Appellant, International Brotherhood of Electrical Workers et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

150 US App. DC 36, 463 F.2d 872 (1972)

ALTON & SOUTHERN RAILWAY COMPANY et al. v. INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS Sheet Metal Workers' International Association, Appellant International Brotherhood of Electrical Workers et al.

No. 24217.

United States Court of Appeals, District of Columbia Circuit.

Argued September 15, 1971.

Decided April 11, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. Michael H. Gottesman, Washington, D. C., with whom Messrs. George H. Cohen, Washington, D. C., and Donald W. Fisher, Toledo, Ohio, were on the brief, for appellants.

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

Messrs. Joseph L. Rauh, Jr., and John Silard, Washington, D. C., filed memoranda on behalf of the United Transportation Union, as amicus curiae.

Before LEVENTHAL and WILKEY, Circuit Judges, and GOURLEY,^* Senior District Judge for the Western District of Pennsylvania.

LEVENTHAL, Circuit Judge:

This case is still another chapter in the volume of disputes—labor disputes and legal disputes—between carriers and unions. The carriers, plaintiffs and appellees, account for most of the nation's Class I railroads. They brought this action against four unions representing their shopcraft employees, and on March 2, 1970, the District Court granted the carriers a preliminary injunction restraining these unions from engaging in any whipsaw strike against an individual carrier over any dispute arising from notices served by the unions in November 1968 under § 6 of the Railway Labor Act.¹ The Sheet Metal Workers Union appealed.² Appellee carriers contend on the merits that the District Court's order should be affirmed. The primary position of the carriers, however, is that the appeal should be dismissed as moot. We dismiss the appeal.

A. The District Court's Order of March 2, 1970 and Findings

The underlying facts, available at greater length in the District Court's opinion (supra note 1), may be stated briefly.

In November 1968 the four shopcraft unions—representing approximately 45,000 workers out of the 500,000 employees in the carriers' unionized work force—served notices under § 6 of the Railway Labor Act ("Act"), 45 U.S.C. § 156, proposing changes in wages. The carriers served notices proposing changes in work rules. In accordance with the unions' request, national bargaining began in March 1969. In April the parties jointly applied for the services of the National Mediation Board ("Board"), see 45 U.S.C. § 155 First. Mediation likewise failed to produce agreement, and on September 3, 1969, after the unions declined arbitration, the Board relinquished jurisdiction of the dispute.

The unions served notice of intention to strike seven of the roads. The carriers announced that if any individual road were struck, they would shut down operations and lock out all employees. The Board notified the President, pursuant to § 10 of the Act, 45 U.S.C. § 160. On October 3, 1969, the President created Emergency Board No. 176 to investigate the dispute. This board made recommendations which the unions declined, and on November 2, 1969, it issued its report of failure to resolve the dispute. After maintaining the status quo for another thirty days, as required by 45 U.S.C. § 160, and still another day, the representatives of the unions and carriers initialed a Memorandum of Understanding, dated December 4, 1969.

This settlement was conditioned on ratification by the membership of the shopcraft unions. The membership of three of the unions ratified, but the approximately 6,000 members of the Sheet Metal Workers balked at accepting a work rule that would permit members of one shopcraft union to perform "incidental" work in another craft.³ Since the unions had agreed that none would accept unless all accepted, the agreement failed.

On Saturday, January 31, 1970, these events happened: At 12:01 a. m. the unions struck the Union Pacific Railroad. The carriers responded by announcing a nationwide cessation of operations to commence at 10 p. m. At 6:30 p. m. District Judge Sirica issued temporary restraining orders, enjoining both the strike (as requested by the carriers) and a nationwide lockout (as requested by the unions).⁴

The opinion accompanying the preliminary injunction of March 2, 1970, stated that the carriers had established sufficient probability of success on the merits, for an injunction to further the purposes of the Act. Judge Corcoran reasoned that selective strikes were illegal with respect to matters, like this one, which had been the subject of "national handling," and as to which national handling was obligatory under the Railway Labor Act, since a selective strike would have the likely effect of destroying such handling.⁵

B. The Mootness of the Appeal Events Subsequent to the Preliminary Injunction

The events subsequent to the District Court's order, brought before us by the carriers' motion to dismiss the appeal as moot, include these uncontroverted facts: The unions, enjoined from a selective strike, threatened a nation-wide strike, encompassing all carriers. On March 4, 1970, Congress enacted Public Law 91-203, which extended the status quo period mandated by § 10 of the Act, and required the parties to maintain the status quo until midnight April 11, unless they bilaterally agreed to a change.

On April 9, 1970, the President signed into law Public Law 91-226, which provided: "That the memorandum of understanding, dated December 4, 1969, shall have the same effect (including the preclusion of resort to either strike or lockout) as though arrived at by agreement of the parties under the Railway Labor Act (45 U.S.C. 151 et seq.) and that February 19, 1970, shall be deemed the `date of notification of ratification' as used in this memorandum of understanding."

The terms of the Memorandum of Understanding were implemented, including the payment of substantial wage increases, some retroactive to January 1, 1969, to the employees represented by the shopcraft unions.

Expiration of the Injunction By Its Terms

It seems to be agreed that this appeal would have been rendered moot if, subsequent to the issuance of the order enjoining the strike, the employer and union had executed an agreement terminating the strike. In Local No. 8-6, Oil, Chemical & Atomic Workers Intern. Union v. Missouri, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373 (1960) the union protested the validity of a state law under the authority of which the governor took possession of a public utility beset by a strike, and the state court enjoined continuation of the strike. On appeal, the state supreme court noted that the injunction had expired by its own terms, but proceeded to sustain the constitutionality of the pertinent sections of the statute authorizing the seizure and prohibiting the strike. The Supreme Court held that to express an opinion on the merits of appellants' contentions "would disregard settled principles of judicial administration," and ignore a "basic limitation upon the duty and function of this court."

In the case at bar, the preliminary injunction restrained any selective strike "over any dispute arising from the Section 6 notices served on or about November 8 and November 29, 1968." Plainly, that judgment has expired by its terms. There is no possibility of a strike pursuant to the 1968 notices. Public Law 91-226 had the effect of requiring the unions to file a new notice under § 6 of the Act, if they wanted to remove the "incidental work rule" provision set forth in the Memorandum, and mandated by the statute, for that became part of a new plateau of work rules binding on carriers and employees unless changed in accordance with the provisions of the Act. Brotherhood of R. Trainmen v. Akron & Barberton Belt R. Co., 128 U.S.App.D.C. 59, 71, 385 F.2d 581, 593 (1967), cert. denied, Brotherhood of Locomotive Firemen etc. v. Bangar and Aroostock R. Co., 390 U.S. 923, 88 S.Ct. 851, 856, 19 L.Ed.2d 983 (1968). As to this requirement of the Act, it makes no difference whether the work rules are adopted by voluntary agreement of the parties, or by mandate of an arbitration procedure consented by the parties, or by valid legislation specified to have the same effect as an agreement or arbitration.

However, the Union draws a sharp distinction between a settlement to which it has consented, which may be taken as canceling the dispute, and a settlement that has been imposed upon it, which only operates to defer the eruption of the dispute until the mandate is removed. This point requires further consideration.

General Doctrines of Mootness, At Common Law and Under the Constitution

The Union vigorously asserts that the carriers' contention that the labor dispute is moot is a "sterile, ultra-technical construction that runs counter realities of the instant labor relations situation, the need to insure that parties adversely affected by short term orders are accorded the opportunity to obtain judicial review thereof, the public interest in promptly resolving recurring issue of major legal import." The Union asserts that its hostility to the incidental work rule is implacable and enduring, and that under any "pragmatic standard of labor-management relations, the underlying economic dispute continues to fester."⁶

We may usefully preface our consideration of the Union's contention by identifying two separate domains of doctrine that are frequently jumbled in discussions of mootness.

Mootness begins as a doctrine that describes the practice of the courts of England and the colonies—long prior to the adoption of the Constitution. It identifies a common law rule, used also and indeed typically in the courts of chancery and the exchequer. It may be usefully referred to as a common law limitation on the duty of a court to decide cases presented. See Mills v. Green, 159 U.S. 651, 653-654, 16 S.Ct. 132, 40 L.Ed....