UNITED IND. WKRS. OF SEA. IU v. Board of Tr. of Galveston Wh.

• Decision Date: 08 August 1968
• Docket Number: No. 25081.,25081.
• Citation: 400 F.2d 320
• Parties: UNITED INDUSTRIAL WORKERS OF the SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT, MARINE ALLIED WORKERS DIVISION, AFL-CIO, Appellant, v. BOARD OF TRUSTEES OF GALVESTON WHARVES and the City of Galveston, Texas, Appellees. BOARD OF TRUSTEES OF GALVESTON WHARVES and the City of Galveston, Texas, Appellees, v. UNITED INDUSTRIAL WORKERS OF the SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT, MARINE ALLIED WORKERS DIVISION, AFL-CIO, Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

400 F.2d 320 (1968)

UNITED INDUSTRIAL WORKERS OF the SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT, MARINE ALLIED WORKERS DIVISION, AFL-CIO, Appellant, v. BOARD OF TRUSTEES OF GALVESTON WHARVES and the City of Galveston, Texas, Appellees.

BOARD OF TRUSTEES OF GALVESTON WHARVES and the City of Galveston, Texas, Appellees, v. UNITED INDUSTRIAL WORKERS OF the SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT, MARINE ALLIED WORKERS DIVISION, AFL-CIO, Appellant.

No. 25081.

United States Court of Appeals Fifth Circuit.

August 8, 1968.

C. Paul Barker, New Orleans, La., Newton B. Schwartz, Houston, Tex., for appellant.

V. W. McLeod, Galveston, Tex., for appellees.

Before JONES, WISDOM, and THORNBERRY, Circuit Judges.

WISDOM, Circuit Judge:

This appeal is from an order of the district court (1) denying the backpay demand of the United Industrial Workers of the Seafarers International Union (Union) and (2) enjoining the Board of Trustees of the Galveston Wharves (Carrier) from availing itself of a state court injunction against the Union. The case presents a difficult problem of appropriate relief under the Railway Labor Act, 45 U.S.C. § 151 et seq., and involves the power of a federal court to enjoin state proceedings under 28 U.S.C. § 2283.

The Carrier and the Union operated under a collective bargaining agreement expiring September 30, 1964. July 31, 1964, the Carrier leased its jurisdictional facilities to the Port Richmond Elevator Company, resulting in the permanent lay-off of 34 employees.¹ The Union sued under the Railway Labor Act §§ 2, 6, 45 U.S.C. §§ 152 Seventh, 156,² seeking an injunction against the Carrier's consummating the lease pending compliance with the Act's provisions and restoration of the status quo existing before the lease. The district court, viewing the dispute as a "minor dispute," relegated the Union to the Railway Adjustment Board for remedial relief. On appeal,³ we held the dispute to be "major"⁴ and remanded the case to the district court for imposition of "some suitable relief and sanction * * * so that bargaining about this operational termination, now so long delayed, may go forward." 351 F.2d at 191-92. We observed: "There is no pretense that § 6 was complied with. Under those circumstances the Union, and perhaps the National sovereign, became entitled to effective judicial relief to assure fulfillment of this national labor policy." 351 F.2d at 190.

On remand, the district court again relegated the Union to the Railway Adjustment Board for backpay, merely requiring the parties to bargain in good faith. Again, on appeal, we held that "this order did not provide the suitable relief and sanction that this Court found to be not only appropriate but necessary." United Industrial Workers, etc. v. Board of Trustees, 5 Cir. 1966, 368 F.2d 412, 413.⁵ Again we remanded the proceedings, leaving details of relief "to the sound discretion of the District Judge."

On the second remand, the district court ordered the parties to bargain and enjoined the Carrier from seeking a state injunction against the Union. But for the third time, the court refused to grant backpay to the discharged employees.⁶ The court asserted that there is no authority for a district court to make a backpay award; such an award may be made only by the duly authorized administrative agency, here the National Railroad Adjustment Board.⁷

On appeal, the Union contends that "suitable relief and sanction" can be imposed — and the status quo maintained — only by inclusion of a backpay award in the district court's judgment. The Carrier cross-appeals, contending that the district court was without power to enjoin the enforcement of a state court injunction against the Union. We affirm the issuance of the injunction, but reverse and remand on the backpay issue. We conclude that the district court has authority to require payment of backpay as a sanction for the Carrier's having violated Section 6 of the Railway Labor Act.

I.

A. The district court correctly read the object of our prior mandates — "to impose such sanctions as are required to put the employees back in the same position as if the employer had complied with the Act, and to negate any windfall which the employer may have gained by the violation." The court felt, however, that its order requiring the Carrier to bargain and to reinstate the employees during bargaining constituted sufficient sanctions. We agree that the employer, having violated the Act, must now bargain with the Union and must reinstate the discharged employees during bargaining; we do not agree that these are "sufficient" sanctions.

(1) "The legislative history of the Railway Labor Act indicates that when the rail unions and carriers agreed upon these provisions, the unions surrendered their right to strike pending exhaustion of major dispute procedures in exchange for a statutory provision restraining management from disturbing the status quo."⁸ Rutland Ry. v. Brotherhood of Locomotive Engrs., 2 Cir. 1962, 307 F.2d 21, 43 (Marshall, J., dissenting). These "freeze"⁹ or "cooling-off"¹⁰ provisions, "read together, cover the duration of major dispute proceedings":

Under § 6 no change in rates of pay, rules, or working conditions can be made by the carrier from the time notice of an intended change has been given, or conferences with respect thereto have been begun, or the services of the Mediation Board have been requested or offered, until the controversy has finally been acted upon by the NMB, unless ten days elapse after the termination of conferences without a request for or proffer of NMB services.

If after the NMB has entered the dispute the parties fail to come to an agreement and arbitration is refused, § 5 First provides that for thirty days after notification by the NMB that its efforts have failed "no change shall be made in rates or pay, rules, or working conditions or established practices in effect prior to the time the dispute arose," unless during that period the parties agree to arbitration or an emergency board is created. Section 10 provides that from the time an emergency board is created until thirty days after the board makes its report to the President "no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose." (Emphasis added.) Comment, Enjoining Strikes and Maintaining the Status Quo in Railway Labor Disputes, 60 Colum.L.Rev. 381, 388 n. 50 (1960).

Literally, of course, maintenance of the status quo in the instant case would have required a return to operation of the elevator by the Carrier. However, feeling that the employees involved in this major dispute could be adequately protected with less, we suggested that "we need not direct that the lease be unscrambled at this time."¹¹ 351 F.2d at 191. The first step in returning to the status quo is required bargaining between the parties. Brotherhood of R.R. Trainmen v. Chicago River & Ind. R.R., 1957, 353 U.S. 30, 33, 77 S.Ct. 635, 636, 1 L.Ed.2d 622, 625. The purposes of the Act point unequivocally in this direction; in both minor and major matters, the Act is designed "to provide for the prompt and orderly settlement of all disputes." 45 U.S.C. § 151a. "In both types of disputes the Act requires that, as a first step, the parties must make every reasonable effort to settle their differences in conference. § 2 First, Second * * 45 U.S.C.A. § 152 First, Second." Rutland Ry. Corp. v. Brotherhood of Locomotive Engrs., 307 F.2d at 31. "Thus, one of the statute's primary commands, judicially enforceable, is found in the repeated declaration of a duty upon all parties to a dispute to negotiate for its settlement. * * * Virginian R. Co. v. System Federation, R.E.D. 1937 300 U.S. 515, 57 S.Ct. 592, 91 L.Ed. 789; cf. Switchmen's Union of N. A. v. National Mediation Bd. 1943, 320 U.S. 297, 300, 320, 64 S.Ct. 95, 96, 88 L.Ed. 61, 63, 74; General Committee of Adjustment, B. L. E. v. M-K-T R. Co. 1943, 320 U.S. 323, 331, 334, 64 S.Ct. 146, 150, 88 L.Ed. 76, 81, 82;" Elgin, Joliet & E. Ry. v. Burley, 325 U.S. at 721 n. 12, 65 S.Ct. at 1289 n. 12, 89 L.Ed. at 1893 n. 12.¹² It is therefore understood that, as the district court ordered, "both sides are to proceed in good faith to bargain as provided under the `major disputes' provision of the Railway Labor Act." Memorandum & Order of the district court, March 20, 1967.

(2) But for the unilateral change of "working conditions" by the Carrier through the leasing of the elevator facilities, the Carrier-employee relationship would have continued throughout the bargaining period. Thus, maintenance of the status quo requires reinstatement of the discharged employees during the bargaining period.¹³ This the district court also ordered.

B. The principal dispute in this case focuses on whether the thirty-four employees laid off should receive backpay for the period between their discharge and commencement of bargaining. The parties have cited, and we have found, no cases dealing with this precise problem. The district court concluded that "the finding by this Court of Appeals that a `major' dispute exists over the leasing of the elevator" does not preclude "there also being a `minor' dispute between the same parties involving different subject matter." "Plaintiff's effort to recover back wages and benefits here is clearly a claim to `rights accrued'¹⁴ and, therefore, a minor dispute relegated to the Railroad Adjustment Board. * * *" The court went on to suggest that "this Court is without jurisdiction to award back wages and benefits which may have accrued under the agreement." We disagree.

(1) The court below suggested that "jurisdiction to make the initial determination as to what back wages and benefits are due under the Agreement is vested solely in the Railroad Adjustment Board by the Railway Labor Act." Moreover, ...