FLIGHT ENGINEERS'INTER. ASS'N v. American Airlines, Inc.

• Citation: 303 F.2d 5
• Decision Date: 07 June 1962
• Docket Number: No. 19055.,19055.
• Parties: FLIGHT ENGINEERS' INTERNATIONAL ASSOCIATION, AFL-CIO, et al., Appellants, v. AMERICAN AIRLINES, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

303 F.2d 5 (1962)

FLIGHT ENGINEERS' INTERNATIONAL ASSOCIATION, AFL-CIO, et al., Appellants, v. AMERICAN AIRLINES, INC., Appellee.

No. 19055.

United States Court of Appeals Fifth Circuit.

June 7, 1962.

Charles J. Morris, Dallas, Tex., I. J. Gromfine, Washington, D. C., Mullinax, Wells, Morris & Mauzy, Dallas, Tex., Zimring, Gromfine & Sternstein, Washington, D. C., for appellants.

Raymond E. Buck, Fort Worth, Tex., Arthur M. Wisehart, New York City, Buck & Buck, Fort Worth, Tex., for appellee.

Before BROWN, WISDOM, and BELL, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

Jets are not only speedy. They provoke problems with the further question whether such problems may translate themselves for solution into a form within the capability of the slower moving machinery of the law. Here we are not dealing with physical forces unleashed by these scientific supersonic advances. We deal, rather, with more elemental tensions — those growing out of the ancient relationship of master and servant and, as one phase, a jungle-like internecine struggle when members of one union feared destruction of their jobs as another union was to undertake to represent their interests. In this mixture of the old and the new, the legal controversy centers around the availability of another ancient mechanism — the equity injunction — to enforce compliance with the statute enacted initially to cover railroad employees, on the one hand, and on the other, the prohibitory effect of a statute enacted to keep federal courts out of labor relations via the injunctive power.

What started as a nice, neat question of bargainability and the collateral problem of the extent to which an employer could enjoin a strike threatened to compel bargaining of issues not open to bargaining, ran into considerable turbulence. A strike was not only threatened, it was called and executed. The parties are, however, in considerable dispute whether this was a strike over the matters presented initially in the case, or was, to the contrary, a wildcat manifestation as to this air Carrier of a nationwide protest against a decision — of all things — of the National Mediation Board which had held that the pilot's union was the proper bargaining agent for all personnel on the flight deck of jets including Flight Engineers. Though it had not yet ruled on the underlying matter which precipitated the filing of this suit by the Carrier,¹ and determination of these matters had been deferred under a no strike pledge by attorneys for the union,² the District Court had to divert its attention from the main controversy to the new one of the sudden strike. After a prolonged hearing on this phase, a preliminary injunction was issued against the Flight Engineer's Union and its members forbidding the current, or any other, strike pending determination of the main case. It is from that preliminary injunction that the Union has appealed. 28 U.S. C.A. § 1292(a) (1).

Briefly, this is the background to this appeal. A five-year agreement between the Carrier and the Flight Engineers' Union became effective May 1, 1958. A supplemental agreement relating to turbo-jet or prop-jet aircraft became effective the same day. It provided that written notice of an intended change in any provision could be served 30 days after the first anniversary date of the first turbine aircraft in scheduled passenger service. These agreements also established a System Board of Adjustment, and provided for finality of its decisions.

On January 25, 1960, within the year and 30-day period, the Union gave notice of its intention to change certain provisions in the supplement agreement. But the Carrier took the position that a number of these demands were actually covered by the terms of the basic agreement, and therefore not open for bargaining for 5 years. As negotiations were bogged down over this dispute, the Union in July 1960 invoked the services of the National Mediation Board. But the Board, on November 17, 1960, recessed the case pending determination by a "competent tribunal" of the controversy whether all of the issues presented were properly open. The Carrier then presented the controversy to the System Board of Adjustment, but the Union refused to participate on the ground that the dispute was a "major dispute" and therefore outside the jurisdiction of the System Board of Adjustment. The Carrier then instituted suit in the District Court seeking a ruling that the System Board of Adjustment had jurisdiction. The Court, on January 16, 1961, at the completion of an extended hearing, suggested that further efforts be made to resolve the dispute, and reset the hearing for a later time. The Union then asked the National Mediation Board to reconsider its decision to recess mediation, but the Board again refused on February 7, 1961. The Carrier again sought determination by the System Board of Adjustment, but the Union again declined to participate.

The date for the adjourned hearing had been successively extended by mutual consent to Saturday, February 18, 1961. A few days before that date, the parties by a signed stipulation agreed to a further indefinite postponement pending decision of the suit by the Union against the National Mediation Board then being instituted in the United States District Court for the District of Columbia. Out of the blue, about 11:00 p. m. on Friday, February 17, the Flight Engineers declined to fly. What was sweetness and light under the stipulation for indefinite postponement now changed into acrimonious and emotional charges and counter charges. A hurried hearing was precipitated, and the Judge granted a restraining order on February 18. After further hearings the strike was enjoined by the preliminary injunction of February 21, 1961, now under review.

The parties — this is especially true of the Union — are so preoccupied with the sudden strike and the injunction against it, that the underlying main controversy is almost completely forgotten.

We think it important to keep both quite distinct. Doing so, we are of the view that insofar as the injunction forbids that strike of February 17-21, 1961, the controversy is moot. Consequently, we need not examine closely the asserted errors leading up to, or resulting in, that injunction.³

One of the errors was the refusal of the trial Judge to allow the Union by cross examination and evidence to establish the real cause of the sudden work stoppage of February 17, 1961. The Court, even under the restricted time limitation of the hearing for preliminary injunction, ought to have allowed this evidence. But no harm was done, for enough of it got in that, together with subsequent actions of which we can take judicial notice, it is certain that this strike was a part of a nationwide work stoppage by which the Flight Engineers' Union and its members used economic pressure directed against employers to protest a decision of a federal governmental agency. This decision, broadly stated, was that the Pilots' Union⁴ was the proper bargaining agent for all flight deck personnel, including Flight Engineers. This terrorized Flight Engineers because of the vigorous advocacy by the Pilots' Union of the demands that all Flight Engineers have pilot qualifications. Paraphrasing Judge Hutcheson, this was, they thought, to "first ground the engineers and then drive them from the air lanes altogether." Brotherhood of Locomotive Firemen, etc. v. Mitchell, 5 Cir., 1951, 190 F.2d 308 at 312.

Without passing upon the public or private morality of it, the Union strategy was simple but effective: simultaneous strikes against all major air carriers would paralyze the nation's transportation bringing about public indignation and likely interference by higher governmental forces, and thus effectually nullify the quasi-judicial decision of a supposedly independent agency, the National Mediation Board. This is exactly what happened. The work stoppage began on February 17. On February 21, Secretary of Labor Goldberg issued his statement. It recommended that the President appoint a public commission serving as an adjunct to the Railway Labor Act to solve this troublesome problem of performance of the flight engineer function on jets. It urged all Flight Engineers to return to work immediately in view of the pledge obtained by the Secretary of Labor from all struck carriers that they would engage in no reprisals against the men for having walked out. The President, by Executive Order 10921, on February 21, 1961, appointed a Commission "to consider differences that have arisen regarding the performance of the flight engineer's function, the job security of employees performing such function, and related representation rights of the unions, namely, the Flight Engineers International Association and the Air Line Pilots Association * * *." U.S.Code Cong. & Admin. News 1961, p. 1272.

The men shortly returned to work. Flights were resumed. And it is fair to state — as this record demonstrates vividly, but mutely — this resulted from the executive intervention and not by reason of the restraining order of Saturday, February 18, or the preliminary injunction issued on February 21, 1961, each of which was completely ineffective to bring the men back to work during the time the hearing was being conducted on Monday and Tuesday, February 20-21. The sequel is, of course, that the Commission made its first report on May 24, 1961. This was followed by its supplemental report of October 17, 1961.

We do not know whether the compromises proposed were accepted, nor is this of any judicial concern to us. What is important, and why we have spelled out developments in detail, is that the actual cause of the sudden walkout no longer exists. So far as that incident is concerned, the preliminary injunction, although actually ineffective,⁵ has served its full purpose. Whether it was proper or improper, the question is now moot.

But since the injunction forbids any and all work...