National Airlines, Inc. v. International Ass'n of M. & AW

• Citation: 430 F.2d 957
• Decision Date: 19 August 1970
• Docket Number: No. 29234.,29234.
• Parties: NATIONAL AIRLINES, INCORPORATED, Plaintiff-Appellee, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

430 F.2d 957 (1970)

NATIONAL AIRLINES, INCORPORATED, Plaintiff-Appellee, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS et al., Defendants-Appellants.

No. 29234.

United States Court of Appeals, Fifth Circuit.

July 15, 1970.

Rehearing Denied and Rehearing Denied August 19, 1970.

Plato E. Papps, Bernard Dunau, Washington, D. C., Jos. P. Manners, Richard M. Gale, Miami, Fla., for defendants-appellants.

William B. Killian, Jerry B. Crockett, Miami, Fla., for plaintiff-appellee.

Before GODBOLD, DYER and MORGAN, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied August 19, 1970.

GODBOLD, Circuit Judge:

This is the second appeal in a dispute arising from the mass discharge by National Airlines, Inc. of wildcat strikers while "freeze" provisions of the Railway Labor Act were in effect.¹ In the first appeal, taken by the union from the denial of a temporary injunction, National Airlines, Inc. v. International Ass'n of M.&A.W., 416 F.2d 998 (5th Cir. 1969), this court held that National had exceeded the permissible bounds of self-help and remanded to the District Court. National's position in that appeal was that it could, without more, discharge employees engaged in a wildcat strike and thereby terminate their right to reinstatement. We pointed out that this failed to take into account the Railway Labor Act's explicit ban on self-help during the "freeze" period, but that self-help was not absolutely prohibited.

* * * We therefore hold that the carrier\'s resort to self-help was justified only to the extent necessary to restore service; its exercise was allowable only in so far as it served that end.

We do not think the mass discharge of the strikers in this case can be justified by the need to restore service. We recognize that the district court was faced with a difficult situation and had little time to deal with it. It is plain that the court\'s central concern was the restoration of the status quo. Nevertheless, we hold that the discharge of the strikers constituted an impermissible form of self-help. The discharge of the strikers was not necessary in order to hire a new labor force.

416 F.2d at 1006.

Quite plainly, this court said that self-help was allowable — to the extent necessary to restore service — but that restoration of service did not require the mass discharges. Thus, having rejected the outer limits for discharges urged by National, i.e., mass discharge of the strikers, we defined a narrow outer limit:

* * * Replacement of the strikers, but not discharge, would seem compatible with the need to restore service. It follows that those strikers whose positions were filled either at the time of the discharge or before the time the strike would have run its course are not entitled to reinstatement. On the other hand, strikers for whom no replacements had been found when the strike probably would have ended are entitled to reinstatement from the time they would have returned to work. This will require a factual determination on remand of the point in time when the strikers would have returned to work, e.g., the date the three suspended employees in New York returned to work. The strikers, who are in a better position to cast light on this issue, should carry the burden to show when they would have returned to work in the absence of the discharge. Strikers who had not been replaced at that time, as revealed by company records, are entitled to reinstatement.

416 F.2d at 1007. In concluding, this court summarized its position in this way:

* * * We further hold, however, that the mass discharge of the strikers exceeded the permissible bounds of employer self-help under the circumstances. National was entitled only to hire replacements for the strikers in order to operate its airline. The district court on remand should determine the precise extent to which the carrier exceeded the permissible bounds of self-help, as defined here, and determine the right of the strikers to reinstatement accordingly.

416 F.2d at 1007. The permissible bounds of self-help was "as defined here," and we had defined it as not including mass discharges, but limited to employing replacements to the time the strike would have ended.

On remand the District Judge considered the permissible limits of self-help to be an issue for him to determine vel non. He took evidence and found that National could not have hired a new labor force to continue operating if it had not discharged the strikers en masse. Since self-help was authorized to continue operating, he concluded that no strikers were entitled to reinstatement. He held that the conclusion of this court that the mass discharge exceeded the bounds of self-help was not supported on the record as developed on remand.

The District Judge erred in his conception of the mandate of the prior appeal by which he was, of course, bound. In re United States, 207 F.2d 567 (5th Cir. 1953). By his construction and the resultant fact finding, he reached a conclusion precisely contrary to the holdings of this court that self-help to continue service did not justify the mass discharge and that strikers were entitled to reinstatement unless replaced. The only matters for him to determine were when the strikers would have returned to work and who had been replaced as of that time, and to enter a direction that those not replaced be reinstated, and to adjudicate the differences, if any, over what reinstatement carried with it.

National urges that the decision of an appellate court in denying or granting a temporary injunction does not establish the law of the case, United States v. United States Smelting R. & M. Co., 339 U.S. 186, 70 S.Ct. 537, 94 L.Ed. 750 (1950), especially when "evidence on a subsequent trial was substantially different" from that presented at the original trial. White v. Murtha, 377 F.2d 428, 432 (5th Cir. 1967).

But "the issues before the district court at the preliminary injunction stage may be such that its order, or if the order is reviewed, the appellate court's order is conclusive of the action." 7 Moore Federal Practice ¶ 65.21 at 1703 (2d ed. 1968); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). Here the illegality of the mass discharge was presented on the motion for preliminary injunction and had been settled conclusively by the opinion of this court. The exception to law of the case where "evidence on a subsequent trial is substantially different" is inapplicable where by the prior appeal the issue is not left open for decision. Paull v. Archer-Daniels-Midland Company, 313 F.2d 612 (8th Cir. 1963); Zdanok v. Glidden Company, Durkee Famous Foods Division, 327 F.2d 944 (2d Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L. Ed.2d 298 (1964).

We turn to the matter of relief. In the proceedings on remand the District Court held that in the absence of the discharge the strike would have ended on January 24 when the suspension expired. 308 F.Supp. at 181-182.

The strikers are not barred from reinstatement because they, arguably, failed to make an unconditional application for reinstatement. The decision for the District Court, as framed by this court on the prior appeal, was to establish the point in time at which the suspended employees in New York, whose suspension triggered the strike, would have returned to work. That was to be the point at which it was assumed the discharged employees also would have returned to work had they been free to return rather than terminated. The matter for decision was, as the District Judge...