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AIR TRANSP. ASSN. OF AMERICA v. PROFESSIONAL AIR T

July 17, 1978

AIR TRANSPORT ASSOCIATION OF AMERICA, AMERICAN AIRLINES, INC., BRANIFF AIRWAYS, INC., CONTINENTAL AIRLINES, INC., DELTA AIRLINES, INC., EASTERN AIRLINES, INC., MOHAWK AIRLINES, INC., NORTHEAST AIRLINES, INC., NORTHWEST AIRLINES, INC., PAN AMERICAN WORLD AIRWAYS, INC., TRANS WORLD AIRLINES, INC., UNITED AIR LINES, INC., AND WESTERN AIRLINES, INC., ALLEGHENY AIRLINES, INC., NEW YORK AIRWAYS, INC., NORTH CENTRAL AIRLINES, INC., OZARK AIR LINES, INC., PIEDMONT AVIATION, INC., and SOUTHERN AIRWAYS, INC., Plaintiffs, against PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION ("PATCO"): MICHAEL J. ROCK, individually and as Chairman of the Board of Directors of PATCO; ROBERT STURGILL, individually and as an officer and agent of PATCO; STANLEY GORDON, individually and as Treasurer of PATCO: JOHN F. MAHER, individually and as National Co-ordinator of PATCO: EDWARD J. WILLIAMS, individually and as Chairman of the New York Area Branch of PATCO: GORDON L. BIGGIO, individually and as Secretary of the New York Center Chapter of PATCO; WILLIAM C. ALLEN, JOHN B. AMENGUAL, JOHN AMMAN, PHILIP A. AMMONS, GEORGE ANTETOMASE, RUDOLPH L. ARNOLD, F. LEE BAILEY, LEO BRANIGAN, JEROME BAUMWALD, PAUL D. BERKEY, ROBERT A. BERNARD, GHEARON BERTSCHE, JOEL M. BETTER, AURELIO BILELLO, JAMES BLACK, DONALD BRODINE, BRUCE R. BONACUM, VINCENT BONASERA, RAYMOND BONN, RUDOLF R. BOREMSKI, FRANCIS J. BOURASSA, THOMAS J. BOYCE, ROBERT L. BRADDY, JOSEPH J. BROGAN, HAROLD L. BROWN, JAMES BRYANT, JAMES S. BURT, JOHN M. CAMPBELL, VINCENT CARBERRY, CARL W. CARLSON, CHARLES CARPENTER, JOHN CARUSO, JOSEPH CATALDO, HARRY E. CHARBURN, CONSTANTINE CHRIST, MEL CLAY, JEROME COHEN, HARIS D. COLE, JAMES R. CONAWAY, VINCENT J. CONNELY, WILLIAM COPPING, GUIDO CORDOVA, ALFONSO M. CRAIG, JAMES E. CRAWLEY, WILLIAM A. CRIPPS, WILLIAM J. DAIN, ELOENK DARAN, JOHN DAVIS, J. DE ROSA, JAMES C. DOMBROWSKI, WILLIAM J. DORAN, JAMES DORIS, BERNARD J. DORRANCE, DEXTER W. DUDLEY, ERNEST DUMAINE, GARY EVENSON, STEPHEN FERRAIUOLO, THOMAS FERRANDO, SIDNEY FINKELBERG, JAMES J. FINNEGAN, WILLIAM A. FIRTH, JOHN FITZGERALD, LAWRENCE FONTANA, EDDIE W. FORSYTHE, JOEL L. FRANK, FRANK A. RUMENTO, LAWRENCE A. GAMBON, LARRY GARRET, ANSEL D. GILBERTSON, ROBERT DIORDANO, RICHARD E. GOLLE, THOMAS M. GREALISK, WILLIAM F. HEALEY, THOMAS F. HEALY, DENNIS HIMLEY, WILLIAM HOFFMAN, CHRIST HOFSDAL, SHELDON HOLZMAN, PHILIP E. HUGHES, THEODORE C. HUNTINGTON, BERNARD D. HUST, ALLEN ISACOWITZ, RONALD IVEY, JACK JACOBS, EARL JENSEN, JR., STEWART R. JONES, PAUL D. KAASS, ROBERT J. KAST, JOSEPH J. KAZOKAS, JAN D. KENSKI, GEORGE W. KERR, DONALD KIPSICK, WILLIAM KUSY, JOSEPH LAMENDOLA, JOHN LAPINE, RICHARD B. LEHMAN, CHARLES R. LEVATO, JOHN LEYDEN, WILLIAM LITTELL, WILLIAM W. LONG, RICHARD LOPEZ, KENNETH J. LYNCH, DONALD J. LYONS, JAMES MADDEN, JOSEPH MAGGIULLI, PAUL A. MALUSHIZKY, ANTHONY MAGONE, JR., CHARLES MANNION HOWARD MANSFIELD, JOHN MARCINEK, LARRY MARGID, JERRY A. MAZZA, JORDAN MEEKINGS, JOSEPH A. MENEGHELLI, DANIEL METZ, ANTHONY MILISA, THOMAS MONTIE, FREDERICK M. MONKS, STUART G. MORSE, LEONARD MOSS, STEPHEN I. MOYLAN, RAYMOND MULLEN, LOUIS P. MURPHY, RAYMOND NETHAWAY, WILLIAM OLIVER, GERALD J. PANNULLO, MARIO A. PAOLOTTI, THEODORE G. PAOLOTTI, GARY PEARSON, MICHAEL R. PERICAS, JACK R. PETERSON, MICHAEL D. PICCOLA, JOSEPH C. PIQUET, HENRI PORTER, GERALD L. POTTER, LOUIS RABENO, CURTIS C. REED, RONALD R. REH, RICHARD J. REILLY, FRANK R. REISZEL, STEE REPKO, GILBERT B. RHODES, DAVID F. RICHARDSON, GAETANO P. RICHICHI, MANUEL RIVERA, JOHN ROBERTSON, EUGENE ROBSCHUNG, HAROLD ROBITAILLE, RICHARD E. ROBITAILLE, BERNARD S. ROGERS, SYL ROSENBERG, LOUIS R. RUSSO, EDWARD RYAN, JOHN J. RYAN, RONALD M. SARSICK, WALTER J. SCHULDT, JAMES H. SCORSE, DANIEL SCUTTI, FREDE RICK SEUFERT, HAROLD SHAKIN, FRANK R. SHOMILAK, NORRIS SKAGGS, RONALD SLOAN, JAMES N. SMITH, JOSEPH M. SONNES, HARVEY F. SOVELOVE, ROBERT W. STANTON, JOHN D. STEVENS, NOAH STILES, DONALD STRUMER, ROBERT STURGILL, CHARLES L. SUFRIN, MELVIN SUSSMAN, RICHARD C. SUTTER, JOSEPH TABER, RAYMOND J. TAHENY, GABRIEL TATAY, RICHARD THOMPSON, JOSEPH TORRES, HARRY V. TRAINUM, SEYMOUR TURKEL, EUGENE VAN HOUTEN, DONALD J. VEIT, LOUIS W. VENGILIO RICHARD VOGT, EDWARD WALSH, JR., WILLIAM H. WANSER, JR., MURRY A. WEISS, THOMAS J. WILLIETT, DOWARD J. WILLIAMS, RICHARD WILSON, WILLIAM J. WILSON, CLINTON G. WORTHLEY, JR., CHARLES WYNKOOP, RONALD ZEITLER, THOMAS ZIEGLER and ROBERT A. ZMUDA, Defendants.


The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

PLATT, D.J.

 By an order to show cause with an affidavit annexed, dated May 26, 1978, and by subsequent notice of motion seeking to amend their original motion, and a stipulation dated June 22, 1978, which was so ordered by this Court on June 23, 1978, plaintiffs have moved for an adjudication that the defendant, Professional Air Traffic Controllers Organization ("PATCO"), be held in civil contempt of Court for violating and disobeying the final judgment of this Court filed on September 9, 1970, by virtue of alleged slowdowns by air traffic controllers, on May 25 and 26, 1978, and June 6 and 7, 1978, and for an order requiring PATCO, in accordance with the aforesaid judgment of September 9, 1970, to pay to the plaintiffs the sum of $25,000 for each day, or part thereof, during which such violations have occurred.

 Defendant PATCO has itself made a motion to vacate plaintiffs' order to show cause and to dismiss plaintiffs' application on the grounds that this Court's final judgments of September 9, 1970 and October 20, 1972 "do not apply to or restrain the conduct alleged against defendant PATCO which is extant".

 Prior to the hearing of the above motions, as indicated above, the parties entered into a Stipulation Re Motion for Contempt on June 22, 1978, which this Court so ordered on June 23, 1978, which provides in pertinent part as follows:

 "The plaintiffs' aforesaid motions for an adjudication in contempt are by this stipulation amended to claim the following violations: violations by PATCO of the aforesaid injunction of September 9, 1970 by virtue of slowdowns on May 25 and 26 and on June 6 and 7, 1978.

 "PATCO asserts, and by this stipulation retains its right to assert, that the aforementioned injunction against PATCO was not valid and effective as against PATCO on May 25 and 26, 1978 and on June 6 and 7, 1978.

 "If it be determined by this Court that the aforesaid injunction against PATCO was valid and effective on the aforesaid dates, it is agreed that for purposes of this motion only, and without prejudice to PATCO's reserved rights under paragraph 7, PATCO shall be deemed to have disobeyed the prohibitions of said injunction with respect to slowdowns by air traffic controllers on May 25 and 26, 1978 and June 6 and 7, 1978.

 "Upon an adjudication that the said injunction was valid and effective against PATCO on May 25 and 26, 1978 and on June 6 and 7, 1978, and that PATCO is, by agreement of the parties, deemed to have disobeyed the said injunction with respect to slowdowns on said dates, as provided by paragraph 8, the Court shall enter judgment requiring PATCO to pay the Air Transport Association of America the sum of One Hundred Thousand ($100,000) Dollars (that is, Twenty-Five Thousand ($25,000) Dollars with respect to each of the aforesaid four days, as provided in the aforesaid judgment of September 9, 1970), the plaintiffs waiving, as against the defendants and defendant PATCO's officers, directors, members and constituent bodies, any other claim for damages, costs or attorneys' fees in addition to said stipulated sum for any slowdowns occurring to and including June 20, 1978."

 Thus, this stipulation in essence provides that (i) plaintiffs' motion be deemed amended to seek contempt adjudications from this Court only as to May 25 and 26, 1978, and June 6 and 7, 1978, and (ii) defendant PATCO concedes, for the purposes of plaintiffs' contempt motion only, that if this Court shall decide that its prior aforementioned orders do "apply to or restrain the conduct alleged against defendant PATCO", PATCO shall be deemed to have disobeyed the September 9, 1970 order on those dates and shall pay plaintiff $100,000 in accordance with the terms of that order.

 The effect of this stipulation then is to leave for this Court to decide only the question whether its prior orders do presently "apply to or restrain the conduct alleged against defendant PATCO."

 In resolving this question, it is necessary first to examine the history of this action.

 In the words of my late and highly esteemed colleague Judge Orrin G. Judd, in Air Transport Association v. Professional Air Traffic Controllers Organization, 313 F. Supp. 181, 183 (E.D.N.Y.), vacated in part 438 F.2d 79 (2d Cir. 1970), cert. denied, 402 U.S. 915, 91 S. Ct. 1373, 28 L. Ed. 2d 661 (1971), the original complaint in this proceeding

 "charges an illegal conspiracy to violate the United States statute which forbids anyone to hold a position with the United States government while he participates in a strike or asserts the right to strike or is a member of an organization of employees that he knows asserts the right to strike against the government. 18 ...


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