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taken seriously, because it contradicts the "predictable, and probably inevitable" consequence of the Union's action (see note 21).

5. In pointing out the difficulties involved in making a finding of Union bad faith, we have also provided perspective for Judge Pratt's ruling. He sought to obviate those difficulties by accepting Mr. Luna's testimony that he was not seeking individual agreements with the two struck roads. It was elicited that if the Union struck Seaboard Coast Line there would be no way to settle that strike except on a national basis. Because of its significance the pertinent responses given by Mr. Luna to the court and to carriers' counsel are set forth in Appendix A. These inelude:

The Court: But if it took a year, why conceivably Coast Line will still be struck?

The Witness: That is exactly it, Your Honor.

The. Court: They couldn't make an individual agreement?

The Witness: No, sir; they couldn't do that. The Court: And even though they tried hard to get Mr. Hiltz to

The Witness: That is their problem.

The Court: In other words, Mr. Rice and his road are going to be held hostage until a national agreement takes place?

The Witness: Your Honor, may I explain something?

The Court: Let's answer that question.

The Witness: Yes, sir.

The Court: All right, now go ahead Mr. Luna.23 In rebuttal argument carriers' counsel, in addition to

23 Mr. Luna here developed his understanding that the roads were divided on their views as to work rules.

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the approach of the moving papers that the selective strike would be in derogation of national handling, picked up the "hostage" conception and put it (Tr. 116) that the Act "can't possibly, in my view, be interpreted as permitting a road to be struck and, as you put it, held as hostage for a year or two years while the others hold out. It just seems to be an outrageous suggestion of interpretation of the Act. The right to use economic force is a right to seek a settlement. They can't hit one railroad and destroy it in the way that Mr. Luna is suggesting."

This became the Court's ruling (Tr. 120-21, Appendix B):

"According to the very frank testimony of Mr. Luna, both the Seaboard and the Burlington would be struck until a national agreement is reached. No private agreements with these two carriers would be entered into.

"The purpose of the strike would be to force the Seaboard and the Burlington to put pressure on their bargaining agent in order to reach a national agreement.

"This could take a week, a month, or a year. During this particular period of time, however long or however short, these two roads would be struck, their operations would be closed down and there would be no way by entering a private agreement an individual agreement with the union that these two carriers could get back into operation.

"We are satisfied that a whipsaw strike for such a purpose violates the Railway Labor Act.”

The sound legal approach to the so-called "hostage" issue is one which requires reflection, and, we think, consideration in the light of concrete facts rather than abstraction. We reiterate our observations that the courts are not expert in this field of labor relations, they have no guidance from a railway labor tribunal, and they are well advised to proceed with caution before declaring principles that are not expressed in the Act nor so clear

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and well defined that they must be declared plainly im-plicit in the Act. The National Labor Relations Board finds nothing illegitimate or inconsistent with free collective bargaining in a union's putting pressure on a multi-employer bargaining unit by striking individual employers. A strike begun with a lawful purpose may become illegal because of methods used in carrying on the strike, and it may be that this might apply to refusal to bargain with an employer who has withdrawn from the multiple unit. But such determinations cannot fairly be made in advance of ascertaining the factual perspective.

The case before us is one in which the declaration of absolute principle brought forth by the court was particularly inappropriate because the Union's intentions had not been formulated on the issue of negotiating with a carrier who withdrew from collective bargaining, and the issue was put in purely hypothetical terms. As appears from the transcript (Appendix A), carrier's counsel embarked on a testing of Mr. Luna's contingent plans, as of course he had a right to do in testing the good faith of Mr. Luna's declaration of intention to seek a national agreement.

It is clear from the transcript that Mr. Luna's testimony that his objective was to seek a national agreement and that he would refuse to sign an individual agreement with the struck carriers was in the context of the situation presently existing, where the two carriers involved were in the group represented by the unit engaged in bargaining on a national basis. When he was asked what he would do if the road offered to withdraw from the national group, Mr. Luna inquired whether the road would do that. When the question was renewed on a hypothetical basis, objection was made by Union counsel to the asking of a hypothetical question. We interject that the hypothetical nature of the inquiry was not only plain

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from the very nature of the question but was underscored by the previous testimony of Mr. Hiltz, the carriers' bargaining spokesman, that while it is entirely voluntary whether a railroad participates in national handling of a dispute, he had not had any occasion, and knew of no instance, in which a railroad that had given a power of attorney to participate in such national handling had subsequently withdrawn the power of attorney. (Tr. 42). Following the objection of Union counsel, the court asked Mr. Luna whether he would accept a private settlement agreement but the court did not set forth as a premise either that the road would have withdrawn from the national group, or on what terms.

Our concern with the abstract and hypothetical predicate underlying the District Court's statement of an absolute principle is heightened by our judgment that the concrete facts as they developed would have a bearing on the legal principle involved, and in all likelihood on the actual response of the Union in the light of the facts as they took shape. The Union's willingness and obligation to negotiate with, say, Seaboard, might well be affected by the nature and extent of Seaboard's activities and its claim to be an innocent hostage. Suppose Seaboard had proposed further steps toward agreement which the Conference had rejected? Suppose on the contrary it had used its vote and influence to stand firm against national concessions? Suppose Seaboard claimed that the group had abdicated its implied responsibility to take fair and effective national action in the light of a threat to national bargaining,-e.g., had rejected Seaboard's request for more mutualizing of the burden; or for a national response in the form of a unilateral change in work rules.

We feel constrained to interject a note of caution against the confusion that may arise from using for the

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area of labor relations a conception like that of "hostage" which regenerates the horror with which the free world reacted to the German execution of innocent civilians in the 1940's. And even the rules of international law apparently draw some distinctions in terms of the innocence of the hostage that makes inapplicable a recourse to principles of collective responsibility.24

Returning to the subject at hand, we are not to be taken as setting forth one way or the other the principles governing the legitimacy of a Union's refusal to bargain with a struck employer who has withdrawn from a multiemployer group. What we do rule is that this problem may not be taken as permitting the enjoining at its inception of a strike against an employer called for a lawful purpose of exerting economic pressure toward the objective of achieving a national agreement, because of the hypothetical possibility that the facts as they develop may come to show a method in violation of the Act in the Union's refusal to bargain with the struck employer notwithstanding his intervening withdrawal from the

24 See, Whiteman, Digest of International Law, Vol. 10, pp. 321 ff., for rulings of American tribunals after World War II reflecting some differences of understanding, and the making of distinctions between hostages and reprisals; the possibility, under a theory of collective responsibility, of taking hostages if limited to members of the group responsible, and as warning against consequence of future unlawful acts. A Dutch court acknowledged the possibility of hostages by an occupying power when the population was engaged through their government in illegal activity.

The humane treatment provisions of the 1949 Geneva Convention prohibiting the taking of hostages are applicable to persons "taking no active part in the hostilities," including "members of armed forces who have laid down their arms and those placed hors de combat."