Seaboard World Airlines, Inc. v. TRANSPORT WORKERS UN. OF AM.

• Decision Date: 26 May 1971
• Docket Number: Docket 35550.,No. 753,753
• Parties: SEABOARD WORLD AIRLINES, INC., Plaintiff-Appellee, v. TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

443 F.2d 437 (1971)

SEABOARD WORLD AIRLINES, INC., Plaintiff-Appellee, v. TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO et al., Defendants-Appellants.

No. 753, Docket 35550.

United States Court of Appeals, Second Circuit.

Argued May 10, 1971.

Decided May 26, 1971.

Henry G. Bisgaier, New York City (Cahill, Gordon, Sonnett, Reindel & Ohl, Laurence T. Sorkin and Ernest L. Garb, New York City, of counsel), for plaintiff-appellee.

Asher W. Schwartz, New York City (O'Donnell & Schwartz, Daniel Kornblum and Robert J. Dryfoos, New York City, of counsel), for defendants-appellants.

Before FRIENDLY, Chief Judge, and WATERMAN and HAYS, Circuit Judges.

PER CURIAM:

In our previous opinion, 425 F.2d 1086 (1970), we directed the district court to pass upon the legality of the provisions of a collective bargaining agreement and a supplemental security agreement made in 1964 between plaintiff, Seaboard World Airlines, Inc. and its flight navigators represented by defendant Transport Workers Union (TWU). The novelty of the agreements stemmed from the parties' knowledge that the navigators would ultimately be displaced by an electronic device. Desiring to avoid disruptions as displacement drew nigh, Seaboard and TWU agreed that the contracts were to be "recognized by the parties as a permanent solution to all matters which are, or which could have been contained therein", and could be reopened only on July 1, 1974, and then solely with respect to compensation. The supplemental security agreement contained elaborate provisions in favor of 27 navigators whose initial date of employment (1951 or earlier) long preceded any threat of technological displacement. Five navigators employed in 1964 and any future hires were excluded from the benefits of the supplemental security agreement. Because of factors outlined in our previous opinion, 425 F.2d at 1088, by September 1969 the number of unprotected navigators had increased by 57 to a total of 62. All but 13 of these signed letters acknowledging awareness of the short-range nature of their jobs; the record here suggests that the 13 also were aware of this and of the lack of security protection. Nevertheless, by a letter dated October 14, 1969, and another dated August 3, 1970, TWU sought to reopen the agreement under § 6 of the Railway Labor Act, primarily with a view to obtaining security benefits for the newly hired navigators, which the 1964 "permanent solution" had expressly ruled out.

Little of probative value was added to the proof already in the record bearing on the legality of the agreement in the post-remand hearings of late May and early June 1970. Since that time, however, the Federal Aviation Agency gave its approval to Seaboard's application for installation of the pilot-operated inertial guidance system which was to substitute for navigators on some of Seaboard's certificated commercial routes, a fact to which the district court adverted in its opinion rendered September 22, 1970, holding the agreement legal. On the basis of this opinion, the district judge, on October 14, 1970, granted Seaboard's request for a permanent injunction to enforce the clause of the agreement which prohibited striking and picketing with respect to the 1964 agreements and, though neither the opinion nor order specifically says so, presumably dismissed TWU's counter-claim for an order requiring Seaboard to bargain on its reopener of October 14, 1969.¹ Moreover, we now know, by virtue of an affidavit submitted by counsel for appellants to this court in support of a stipulation between the parties concerning extension of time to file briefs, that

during October, 1970, after reaching an agreement with its pilots for their use of an inertial system of navigation plaintiff-appellee laid off its so-called unprotected navigators by reason of their displacement by that system

and that

on or about December 1, 1970 the plaintiff-appellee laid off many of the so-called "protected" navigators for the same reason and laid off the remaining "protected" navigators on or about January 1, 1971.

TWU's claims of invalidity of the prohibition of reopening the 1964 settlement of the security issue require little comment. The contention that the provisions of § 6 of the Railway Labor Act, 45 U.S.C. § 156, whereby "carriers and representatives of the employees shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions," means that any agreement must be subject to reopening every thirty days would convert an Act intended as an instrument for achieving industrial peace into a potent weapon for perpetual warfare. It also defies what was necessarily assumed in such decisions as Flight Engineers' Int'l Ass'n v. American Airlines, Inc., 303 F. 2d 5, 13 (5 Cir. 1962) and Brotherhood of R.R. Trainmen v. Akron & Barberton Belt R.R., 128 U.S.App.D.C. 59, 385 F.2d 581, 603-604 (1967), cert. denied 390 U.S. 923, 88 S.Ct. 851, 19 L.Ed.2d 983 (1968). We likewise see nothing in § 8(d) of the National Labor Relations Act, 29 U.S.C. § 158(d), or in the Labor Board's "contract bar"...