Florida East Coast Railway Company v. United States

• Decision Date: 21 July 1965
• Docket Number: No. 22134.,22134.
• Parties: FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. UNITED STATES of America, Appellee. UNITED STATES of America, Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

348 F.2d 682 (1965)

FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. UNITED STATES of America, Appellee.

UNITED STATES of America, Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, Appellee.

No. 22134.

United States Court of Appeals Fifth Circuit.

July 21, 1965.

William B. Devaney, Washington, D. C., J. Turner Butler, Jacksonville, Fla., Steptoe & Johnson, Washington, D. C., of counsel, for Florida East Coast Ry. Co.

Neal Rutledge, Allan Milledge, Miami, Fla., for intervenors, eleven railway brotherhoods.

Walter H. Fleischer, Atty., Dept. of Justice, Washington, D. C., William J. Hamilton, Jr., Asst. U. S. Atty., Jacksonville, Fla., Sherman L. Cohn, Atty., Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Edward F. Boardman, U. S. Atty., for the United States.

Before TUTTLE, Chief Judge, and EDGERTON,^* and SMITH,^** Circuit Judges.

TUTTLE, Chief Judge:

This is another chapter in the long dispute between the Florida East Coast Railway Company and its employees. It comes to us by an appeal by the Railway from a preliminary injunction entered by the district court. That injunction, entered after the decision by this Court in Florida East Coast Railway Company v. Brotherhood of Railway Trainmen, 5th Cir., 336 F.2d 172, purports to put into effect what we there said would be permissible deviations from the collective bargaining agreements during the continuance of a strike. The dispute which brought about the suit in the earlier case and which caused the United States to file the suit in the instant case, is one and the same except that the 11 non-operating unions whose members will be the beneficiaries under the present suit were the employees who went on strike on January 23, 1963, whereas the Brotherhood of Railway Trainmen, the plaintiff in the earlier case, was not on strike but its members observed the picket lines and thus were in substantially the same position and desirous of similar relief.

On the record there before us we made a number of holdings which, unless changed in this case, are in effect the law of the case. These holdings were included in the last full paragraph of the opinion, 336 F.2d 172, 182, which we here quote:

"* * * The FEC is free to operate under the 1949 collective bargaining agreement as amended by the November 2, 1959, notice, but FEC may not institute changes in rates of pay, rules and working conditions encompassed by the July 31, 1963, and September 25, 1963, notices until the statutory procedures are exhausted. To do so would be to frustrate the statutory mechanism for orderly settlement of major disputes. This portion of the District Court\'s holding is clearly correct. It is, however, free to institute and maintain such employment practices, etc. as are, and continue to be, reasonably necessary to effectuate its right to continue to run its railroad under the strike conditions. We do not express any opinion as to the outcome of the District Judge\'s examination of proposed changes under the select, item-by-item approach that we articulate. However, since he has enjoined the FEC from operating under any terms except those embodied in the pre-November 2, 1959, agreement, we think the most rational approach is to continue our stay of March 17, 1964, until the District Court has an opportunity to consider the nature and scope of the orders to be entered consistent with this opinion. As soon as the District Judge takes hold of the case, our stay will automatically expire."

When the motion for preliminary injunction in the present case came on before the district court, the district judge delayed handing down his decision because of the pendency of the appeal in the earlier case. After this Court's decision was handed down on August 29, 1964, Judge Simpson entered injunctions in both cases. On October 30, 1964, the trial court restrained the FEC from continuing in effect or implementing in any respect the changes in rates of pay, rules, or working conditions announced in the § 6 notices of September 24, 1963 and July 31, 1963, from implementing or continuing in effect the "conditions of employment" of September 1, 1963 and from

"making any other changes in rates of pay, rules or working conditions of its employees in crafts or classes covered by existing collective bargaining agreements except in accordance with the procedures of the Railway Labor Act or except upon specific authorization of this Court after a finding of reasonable necessity therefor upon application of the FEC to this Court during the pendency of the current strike."

On November 12, the FEC filed in the trial court an application for the approval of certain employment practices which it contended were "reasonably necessary" to enable it to continue to operate during the strike. The court granted a stay of its earlier order insofar as it required the FEC to adhere to its agreements with respect to the requested applications pending a hearing on the application for approval of the specific employment practices.

The employment practices departing from the existing collective bargaining agreements which FEC sought permission to put into effect were as follows:

(1) The use of existing personnel to do work across craft lines and seniority districts;

(2) The use of supervisors to perform craft work in the absence of sufficient qualified personnel;

(3) The exceeding of apprentice and/or trainee ratios or maximum age limitations contained in existing agreements;

(4) The use of non-exempt foremen to perform scope work in the absence of sufficient qualified personnel;

(5) The contracting out of work which FEC did not have personnel available to perform itself;

(6) The performance of the work of bridge tender by supervisory or contract employees;

(7) The furnishing of seniority rosters to labor organizations only if a protective order issued from the court making misuse of the information contained therein punishable as a contempt of court; and

(8) The treating of union shop agreements as void and unenforceable as to replacement workers and returnees until the labor organizations demonstrated their intention to make membership therein available to new employees without discrimination, after which the new employees should have thirty days in which to apply for membership.

Following the hearing on the merits of these several applications, the trial court, in an order entered on December 3, 1964, denied Numbers 1, 4, 7 and 8 but granted Number 3; denied Number 2 except for several positions for a limited time; denied Number 5 except that FEC was permitted to continue to contract out that work which was presently being contracted out; and denied Number 6 except that FEC was permitted to use contract or supervisory employees as bridge tenders for a restricted period (later extended by supplementary order).

The Railway filed its notice of appeal from the order dated October 30 and the order dated December 3, denying approval of departures from the existing contracts in the respects requested. The United States filed a cross-appeal from both injunctive orders.

A threshold question is raised by a motion by the Railway to dismiss the appeal of the United States on the grounds that the United States has no standing to litigate ...