Pan American World Airways, Inc. v. Flight Engineers' International Ass'n

MOORE, Circuit Judge

(dissenting).

Although the facts are not in dispute, as so frequently happens, the interpretations to be derived therefrom may differ widely. It is in this area that I find myself in disagreement with my colleagues.

The importance of the subject matter of this case has been succinctly summarized recently (June 14, 1962) by the President of the United States who said:

“Eighteen hundred men1 are threatening a strike which would cause the immediate lay-off of some 60,000 employees, the immobilization of 40 per cent of the nation’s airline service, and the loss of over a million dollars a day from international flights, which our balance of payments cannot afford.”

This statement followed a request which he had made five days earlier in which he said:

“It is vitally important that these disputes be settled without interruption. There would be, furthermore, no excuse for the interruption in view of the steps which have been taken, under Government auspices, to achieve a settlement which is equitable to the parties and which takes account of the public interests which are involved.”

In this crisis, national and international in scope as declared by the President, the majority find the courts without power to grant relief under the law. Upon the facts as I read them and upon the law, I cannot subscribe to such a doctrine of helplessness.

The right to strike sustained by the majority arises from a Railway Labor Act (RLA) Section 6 proceeding which they assert has run its full course and, hence, leaves the flight engineers free to strike. That proceeding was initiated over two years ago (April, May, 1960) by appropriate notices which embraced generally changes in wages, hours, rules and working conditions in an agreement between Pan American and the flight engineers which was about to expire on June 1, 1960. Upon failure to reach an agreement, the dispute was referred to the National Mediation Board (NMB) which continued mediation procedures until February, 1961, when the President appointed an Emergency Board (45 U.S. C.A.A. § 160) to consider the issues involved.

However, also in February, 1961, an entirely new situation (as I see it) arose. On February 6, 1961, the NMB handed down a decision in a United Air Lines case that pilots and flight engineers constituted a single craft or class for collective bargaining purposes (Sec. 2, Ninth, RLA). In protest against this decision, the flight engineers on February 17, 1961, went out on strike against Pan American and six other airlines. On *851February 18, 1961, Pan American, claiming that the strike was a violation of the status quo requirement pending the Emergency Board’s investigation and report, obtained a temporary restraining order enjoining the strike.

To deal with the situation created by the United Air Lines decision, the President by Executive Order on February 21, 1961, appointed a Presidential Commission (the Feinsinger 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 Airlines Pilots Association * * * ”

Thus, there were two separate bodies in existence, the Emergency Board considering the Section 6 issues and the Feinsinger Commission dealing with the issues outlined by the President (supra). The flight engineers concede the difference in material issues before the Board and the Commission in stating:

“[T]he so-called Feinsinger Commission was appointed wholly outside the procedures of the Railway Labor Act, to consider problems not included in the Section 6 notices.”
“[T]hat the problems faced by the groups [the Emergency Board and the Presidential Commission] are different and essentially unrelated * * * ”

The original NMB case based upon the Section 6 notices was closed (April 10, 1961) because of the referral to the Emergency Board. Hearings were then held between April 24, 1961, and June 8, 1961, before the Emergency Board.

In the meantime, the Feinsinger Commission issued a first report on May 24, 1961, in which it found that the cause of the strike of February 17, 1961, was the United Air Lines decision and its merger of pilots and flight engineers into a single class. If summarized the differences between the pilots and the flight engineers, stating:

“FEIA2 insists that the carriers must not qualify pilots as flight engineers nor require flight engineers to qualify as pilots, and that all flight engineers must possess an A&P license. The ALPA position is that the carriers must give pilots training as flight engineers, that such training is not to include an A&P license, and that if a three-man crew is used on jet aircraft its . third member must possess a commercial pilot license and instrument rating and be qualified to relieve the co-pilot under routine and emergency conditions.”
“There is ample reason, however, to believe that FEIA is partly motivated by a desire to fence the pilots out in order to preserve its members’ jobs, the craft, and FEIA’s representation rights, and that ALPA is likewise partly motivated by a desire to elbow FEIA out of its representational rights and all that implies.”

The Feinsinger Commission suggested that the parties negotiate on the basis of the report and advise the Commission of their progress within thirty days.

Less than a month thereafter (June 20, 1961), the Emergency Board issued its report dealing with the subject matter of the original Section 6 notices. It did not consider the questions of representation or the qualifications for the third seat in a three-man jet crew. In fact, it specifically refrained from invading the Commission’s field or making any recommendations because “recommendations from this Board on matters related directly or indirectly to the Commission’s current endeavors might do more harm than good.” So far as the Section 6 issues originally framed were concerned under the law the time of restraint ran out on July 20, 1961. But this report encompassed only one phase of the controversy.

*852On October 17, 1961, the Feinsinger Commission issued its report with specific recommendations which the President characterized as “fair and equitable to the parties and an honorable way to a peaceful settlement of a difficult inter-union dispute which has plagued the airline industry for years.” However, the flight engineers’ reply included a statement on the subject of “Flight Engineer Representation,” which demanded that:

“The carrier shall agree to obtain formal and express recognition of the flight engineer position as a separate class and craft without regard to any legal or contractual requirement for additional qualifications in its agreement with the pilots.”

It was more than obvious by this time that the battle was over the third seat in the cockpit, the reward was representation and the contestants were the pilots and the flight engineers. The battleground was Pan American’s fields which were being trodden down by the warring factions.

In April, 1962, because of a controversy between Pan American and the pilots involving the third seat and qualifications therefor, another board (the Taylor Board) entered the picture. The flight engineers were given an opportunity to participate in the arbitration agreed upon by Pan American and the pilots but declined. Following the Taylor Arbitration Board’s report (May 21, 1962) and further negotiations, the President requested arbitration of unresolved issues. The flight engineers agreed to arbitrate the “economic issues” if Pan American yielded to them on the so-called A&P and furlough issues. Thereafter on June 21, 1962, a settlement of the disputes between the TWA flight engineers and TWA was announced. Shortly after this announcement, the Pan American flight engineers stated that the TWA settlement was “completely unacceptable” and that they would go on strike against Pan American and Eastern Air Lines at 2:00 P.M. on June 23, 1962. In the announcement, the flight engineers said that the TWA settlement “represents a complete abdication to the pilots of our representation rights.”

On June 22, 1962, the NMB by telegram advised both Pan American and the flight engineers that it proffered its services pursuant to Section 5, First (B) of the RLA in the labor emergency. On June 25, 1962, representatives of Pan American and the flight engineers met with the Secretary and Under Secretary of Labor and a member of the NMB. The flight engineers took the position that they would not permit any “risk of loss of their representation rights.” The meeting went into recess “subject to call” because of these court proceedings in which a hearing had been scheduled for June 26, 1962.

This somewhat detailed recital of the facts has been set forth because in my opinion the parties have by no means reached the barricade at the end of the mediation road upon which they were traveling in June, 1962. Originally, they had started down a Section 6 road but after the United Air Lines decision they had definitely crossed over to a separate although parallel road. The Emergency Board recognized this and Judge Rayflel in his “free to strike” statement relating to the Section 6 proceedings said that it was without prejudice to Pan American’s right to renew its motion for a preliminary injunction and that if a new application were made “[he] would entei’-tain it, and [he] would not regard the matter as having been adjudicated previously.”

The mere fact that a proceeding based upon Section 6 notices in April, 1960, has gone through the various prescribed steps should not entitle the flight engineers to receive one “strike coupon” good in perpetuity which may be dusted off and redeemed at will in future years by a strike regardless of the then situation and the specific controversies then dividing the parties. And upon the facts as disclosed by the record, I am left with no doubt that the controversial issues of June, 1962, primarily “crew comple*853ment” and “representation,” as to which the NMB proffered its services had not theretofore been subjected to the required procedures of the RLA. Whether the dispute be denominated “major” as the majority hold, and with which view I am inclined to agree, or “minor” as the court below indicated, the real question is: have the parties with respect to the current fundamental issues exerted “every reasonable effort to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption in commerce or to the operation of the carrier growing out of any dispute between the carrier and any employee thereof” (Sec. 2, First, RLA). If they have not, the courts have not been reluctant to enjoin strike action until the parties have complied with RLA requirements. Were the provisions of the Norris-LaGuardia Act, which so concern the majority, mandatory against the issuance of any strike injunction, all previously issued injunctions in RLA cases should be invalid. That this result has not come to pass seems to stem from the doctrine of “accommodation” of one Act to the other which permits them to exist side by side.

I have no quarrel with the majority view of the law that in a “major” issue “no injunction can issue under the Act against a strike which is undertaken after the mediation processes of the Act have been completed.” However, in my opinion, this generality serves little purpose unless the questions be asked and answered: “mediation processes” directed to what issues; and have these processes been “completed” as to such issues ? The majority concede that the “crew complement” issue was not included within the scope of the Section 6 notices and was not considered by either the NMB or the Presidential Emergency Board. Yet it was this issue and the related representation issue which were the primary causes of the June, 1962, strike.

This is not a case of one of the parties trying to relitigate old issues and there..by obtain a second “go around” before the NMB and a second “cooling-off” period. And to say that once a dispute has been processed by the NMB, no issues no matter how new and different can be made the subject of mediation within the provisions of the RLA, is to read language into the Act which is not there. Such an interpretation would mean that every proceeding must end in a strike before a new one can be commenced. This approach is scarcely consistent with the Supreme Court’s comment in Texas & N. O. R. R. v. Brotherhood of Ry. Clerks, 281 U.S. 548, 565, 50 S.Ct. 427, 74 L.Ed. 1084 (1930) that “the major purpose of Congress in passing the Railway Labor Act was ‘to provide machinery to prevent strikes.’ ” And certain it is that the NMB ought to have an opportunity under the Act to mediate a first time as to the critical strike issues.

I find nothing in the law to support the majority’s statement that a party after RLA procedures have been exhausted as to certain issues cannot “set them in motion for a second time by the service of a Section 6 notice raising new issues.” The three cases cited provide no support. In Pittsburgh & Lake Erie R. R. v. Brotherhood of R. R. Trainmen, W.D.Pa.1959, 179 F.Supp. 271, the court specifically said (p. 277), “It is undisputed that this dispute [attempted to be added] is the same dispute previously mediated unsuccessfully by the Board.” In Northwest Airlines, Inc. v. Airline Pilots Association, D.Minn.1960, 185 F.Supp. 77, the court found that (p. 80), “No new issues of a different nature appear to be posed by the filing of the later Section 6 openers.” In American Airlines, Inc. v. Air Line Pilots Ass’n, S.D.N.Y.1958, 169 F.Supp. 777, there was no question of the injection of new issues because the case related to June, 1957, notices. There, the court referring to a subsequent notice said (p. 797), “It may be, as the Company claims, that there was some obligation on the part of the Union to bargain with respect to the Company’s November 1, 1958 ‘opener’.” All that was covered by the decision was that the new notice did not prevent “a *854strike with respect to the subject matter of the dispute which had been fully processed under the Railway Labor Act, in which the Emergency Board had acted, and concerning which the cooling-off period had expired.” In other words, the strike was related to the original issues which is not the situation here. The same conclusion is found in Continental Air Lines, Inc. v. Flight Engineers Int’l Ass’n, 40 CCH Labor Cases ff 66,645, S.D.Calif.1960 because “the strike issues were and are solely refer-rible to the plaintiff’s proposed operational changes which were fully mediated to a conclusion by the Board in its Case No. A-6151.”

A case far more analogous and to me more persuasive is Pullman Co. v. Order of Railway Conductors and Brakemen, 44 CCH Labor Cases jj 17,577, N.D.111., decided on April 23, 1962. There the court granted an injunction, saying:

“4. The issues now in dispute between the parties are substantially different from those submitted and voted on by the members of the Conductors’ organization in September, 1959.

******

“6. The proposals first presented by defendants in December, 1961, raised new issues beyond the scope of any notice previously served by defendants pursuant to Section 6 of the Railway Labor Act. As to the issues now in dispute between the parties the processes of the Railway Labor Act have not been exhausted. The strike called by defendants is, therefore, illegal and should be enjoined.

“7. Since the defendants have violated the Railway Labor Act the provisions of the Norris-LaGuardia Act are inapplicable. An injunction should issue enjoining defendants from striking over the proposals in dispute until the procedures of the Railway Labor Act have been exhausted, * * * ”

A similar result upon a proper factual showing was at least suggested by the court in Pittsburgh & Lake Erie R. R. (supra, 179 F.Supp. pp. 277-278), as follows:

“[4] It is conceivable that an ‘old’ dispute involving the same set of facts could become a ‘new’ dispute if one or both of the parties slept on their rights (in this instance the right to strike) for a considerable period of time. Laches could bar the plea of previous mediation. To allow the interpretation of a vital public service within fact no warning could cause great harm to those dependent on the service. But to hold that the strike must be called on the exact expiration date of the provisions of the Act would also be against public policy. Continuation of negotiations for a reasonable period should be encouraged. Here we find no unreasonable delay on the part of the Union so as to make this dispute subject to a new enforcement of the procedures to [sic] the Act.”

I conclude, therefore, on the facts and the lav/ that the temporary restraining order is appealable as if it were a preliminary injunction (Sims v. Greene, 3 Cir., 1947, 160 F.2d 512); that the proceedings before the NMB and the Emergency Board arose out of the Section 6' notices of April and May, 1960, and the subject matter set forth therein; that the events and disputes arising therefrom which led up to the controversy causing the strike threat in June, 1962, were not known, could not have been known and were not embraced in the-proceedings before the NMB and the Emergency Board; that the A&P, the furloughees, the “crew complement” and the “representation” issues have never been presented for processing under Section 10 of the RLA to the NMB or the Emergency Board; that in June, 1962, the NMB offered its mediation services as provided in the Act and could have heard such issues had the flight engineers not gone out on strike; and that.

*855the failure of the flight engineers to comply with the requirements of the Act is a violation thereof, entitling Pan American to a preliminary injunction. Accordingly, I would affirm the order.

. Apparently referring to the flight engineers of Pan American, Eastern and TWA.

. The flight engineers.