Atlanta & West Point R. Co. v. UNITED TRANSPORTATION U.

• Decision Date: 19 February 1971
• Docket Number: No. 29638.,29638.
• Citation: 439 F.2d 73
• Parties: ATLANTA AND WEST POINT RAILROAD COMPANY and Western Railway of Alabama, Plaintiffs-Appellees, v. UNITED TRANSPORTATION UNION, an unincorporated labor union and C. M. Cagle, etc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.2d 73 (1971)

ATLANTA AND WEST POINT RAILROAD COMPANY and Western Railway of Alabama, Plaintiffs-Appellees, v. UNITED TRANSPORTATION UNION, an unincorporated labor union and C. M. Cagle, etc., Defendants-Appellants.

No. 29638.

United States Court of Appeals, Fifth Circuit.

February 19, 1971.

Hugh W. Gibert, Richard N. Hubert, Edward L. Greenblatt, and R. C. Freeman, III, Atlanta, Ga., for defendants-appellants.

William H. Major, Ralph G. McCallum, Jr., Atlanta, Ga., for plaintiffs-appellees.

Before BELL, DYER and RONEY, Circuit Judges.

DYER, Circuit Judge:

The United Transportation Union appeals from the District Court's order preliminarily enjoining a strike during a labor dispute with the Atlanta and West Point Railroad and the Western Railway of Alabama.¹ Essentially the union contends that these railroads had no standing to seek, and the District Court had no power to issue, an injunction because the carriers had not complied with the Norris-LaGuardia Act § 8, 29 U.S.C.A. § 108,² or the Railway Labor Act §§ 2, Third, and 6, 45 U.S.C.A. §§ 152, Third, 156.³ We affirm.

The dispute sub judice evolves from the often hostile milieu and fiery history of union-management relationships in the railroad industry: the incipiency of conflict between the firemen⁴ and the railroads loosely coincided with the birth of Rudolf Diesel more than a century ago. Brotherhood of Locomotive Firemen & Enginemen v. Central of Georgia Ry., 5 Cir. 1969, 411 F.2d 320, 321. We need not here repeat the historical narrative which others have already published. E g., Brotherhood of R. R. Trainmen v. Akron & Barberton Belt R. R., 1967, 128 U.S.App.D.C. 59, 385 F.2d 581, 588-592, cert. denied, 1968, 390 U.S. 923, 88 S.Ct. 851, 856, 19 L.Ed.2d 983. Instead, we shall confine our explication to events comprising the factual context of this particular controversy.

On November 15, 1965, the Brotherhood of Locomotive Firemen and Enginemen served upon the Atlanta and West Point Railroad and the Western Railway of Alabama three section 6 notices⁵ proposing changes in the existing collective bargaining agreement. The present controversy is concerned primarily with Notice No. 3, which pertained to establishment of an apprentice-engineer training program for firemen.

Responding to the Union's proposals, the railroads scheduled a conference. During this and subsequent meetings, they contended that the Union's requests were "premature, unlawful, and non-bargainable."⁶ Later, however, management expressed willingness to begin preliminary discussions but, viewing all notices served on November 15, as constituting a single section 6 notice, insisted on concurrent consideration of the railroads' counterproposal of January 1966.⁷ The Union rejected this invitation since it deemed the notices mutually independent. Indeed, on February 22, 1966, T. F. Carr, general chairman of the Union's local grievance committee, stated in a letter to Marshall L. Bowie, the carriers' personnel director, that conferences concerning the Union's proposals had been terminated prior to that date and could not be reopened. Although Carr later modified his position with regard to the training program, the record discloses no formal attempt to reopen negotiations. Consequently the merits of Notice No. 3 have never been discussed.

The District Court found that, at one time or another, both parties refused to resume negotiations concerning the bargainability of Notice No. 3. The court plausibly concluded that the hiatus resulted because all concerned were awaiting the outcome of litigation, instituted by other unions and other carriers, to determine the bargainability of Notice No. 3. Necessarily antecedent to the resolution of this issue was an answer to the question whether any union — the Brotherhood of Locomotive Firemen and Enginemen and the Brotherhood of Locomotive Engineers were specifically concerned — possessed the exclusive right to contractually arrange an apprentice-engineer program with the carriers. Finally, in Brotherhood of Locomotive Firemen & Enginemen v. National Mediation Board, 1969, 133 U.S.App.D.C. 326, 410 F.2d 1025, 1032, cert. denied, 396 U.S. 878, 90 S.Ct. 149, 24 L.Ed.2d 136, the District of Columbia Circuit held "that the Firemen's Section 6 notice concerning engineer apprenticeship programs * * * was bargainable under the Railway Labor Act."⁸

On November 7, 1969, little more than two weeks after the Supreme Court denied certiorari in the above case, the National Railway Labor Conference, which represents the railroads involved here and other carriers, sent the United Transportation Union a written offer to negotiate, and suggested a time and place for the meeting. The Union's international president replied on November 12 that the Union was not prepared to consider the matter on a national basis. He concluded that the "suggestion for a meeting concerning Notice No. 3 should be sent to the General Chairmen of those General Committees which served that Notice." On November 14, the Union's international vice-president arrived in Montgomery, Alabama. On November 15, he informed the general chariman of the Union on the Atlanta and West Point Railroad and the Western Railway of Alabama that a strike would commence at 6:00 a. m. that morning.

The strike was short-lived. During the evening of November 15, the District Court for the Northern District of Georgia issued a temporary restraining order. That order was continued by consent of the parties until December 4. Following a hearing on that date, the temporary order remained in force pending issuance of the court's ruling. On January 5, 1970, the court decided that the union had mistakenly treated "the abortive discussions between the parties about negotiations as a substitute for negotiations and as an exhaustion of the procedural requirements of the RLA so that it now may strike." 307 F.Supp. at 1210. According to the district judge, the Railway Labor Act requires good-faith negotiations as a prerequisite to the exercise of self-help by either party. Therefore, the carriers must be enjoined from refusing to negotiate and from refusing to comply with the Act's other mandatory provisions; and the Union must be enjoined from striking pending such compliance, unless in the meantime the carriers should unilaterally alter existing working conditions or otherwise disturb the status quo. Id. at 1211. The court concluded:

Accordingly, an injunction will issue against the union until the statutory procedures have been followed and until further order of the court, and both parties shall proceed forthwith to make a good-faith effort to settle in conference their differences with regard to all bargainable proposals for changes which the union served upon plaintiffs railroads in November 1965.

Id. at 1212.

Appealing this order pursuant to 28 U.S.C.A. § 1292(a) (1), the Union argues that the District Court erred both in its findings of fact and in its application of the law. The appeal rests on three grounds: First, the four year delay between the Union's section 6 notices and the railroads' offer to negotiate conclusively indicates that the carriers have not made "every reasonable effort" to settle the dispute, a requirement of the Norris-LaGuardia Act, section 8. Having failed to satisfy this condition precedent, the railroads had no standing to seek injunctive relief. Second, because the carriers unilaterally changed one of the terms or conditions of the firemen's employment in violation of the Railway Labor Act, section 6, the Norris-LaGuardia Act, section 8, precluded any injunction against the strike. Finally, by negotiating with the Engineers rather than the Firemen with regard to the apprentice-engineer program, the railroads attempted to "interfere with, influence, or coerce" their employees in violation of the Railway Labor Act, section 2, Third. The District Court's order rewarded the railroads for engaging in such illegal activity. We find each of these conclusions untenable.

Section 4 of the Norris-LaGuardia Act, 29 U.S.C.A. § 104, specifically provides: "No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute * * *." By its terms this prohibition is absolute. Nevertheless, the Supreme Court has recognized a duty to reconcile the policies underlying the Norris-LaGuardia Act with those underlying the Railway Labor Act. E. g., Brotherhood of R. R. Trainmen v. Chicago River & Indiana R. R., 1957, 353 U.S. 30, 40-42, 77 S.Ct. 635, 1 L.Ed.2d 622; Virginian Ry. v. System Federation No. 40, 1937, 300 U.S. 515, 563, 57 S.Ct. 592, 81 L.Ed. 789; see Boys Markets, Inc. v. Retail Clerks Union, Local 770, 1970, 398 U.S. 235, 251-252, 90 S.Ct. 1583, 26 L.Ed.2d 199. Recently the Court noted:

The heart of the Railway Labor Act is the duty, imposed by § 2 First upon management and labor, "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes * * * in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof."

The Act provides a detailed framework to facilitate the voluntary settlement of major disputes. * * * While the dispute is working its way through these stages, neither party may unilaterally alter the status quo.

Brotherhood of R. R. Trainmen v. Jacksonville Terminal Co., 1969, 394 U.S. 369, 377-378, 89 S.Ct. 1109, 1115, 22 L. Ed.2d 344; see Detroit & Toledo Shore Line R. R. v. United Transportation Union, 1969, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325; National Airlines, Inc. v. International Association of Machinists & Aerospace Workers, 5 Cir. 1969, 416 F.2d 998, 1000-1002; United Industrial Workers, v. Board of Trustees of Galveston Wharves, 5 Cir. 1968, 400 F. 2d 320, 323-324, ...