with NASA. Finally, the Modifications set forth a new procedure which protects the reporter but not others who may be involved in an incident, the reporter being protected only where he makes a timely report within ten days, but further providing that when FAA obtains information other than through NASA, that disciplinary action may even be taken against the reporter of the incident. The Modifications were to take effect on April 30, 1979.
Representatives of the parties met after the publication of the Modifications to discuss PATCO's concern over the changes and the effect they would have on the controllers. The FAA agreed to make some wording changes and agreed that parity between controllers and pilots, to the extent possible, was desirable. (Kossiaras Aff. P 4.) Later, PATCO requested that the dispute be referred for expedited arbitration, however, that request was rejected by FAA. In April 1979, PATCO wrote FAA requesting formal arbitration, however, FAA did not respond and PATCO did nothing more to initiate the arbitration procedure. The parties finally initiated the arbitration procedure only after the Court asked during the last hearing whether the matter had been submitted to arbitration.
The FAA notified PATCO in a letter dated June 28, 1979, that the proposed changes had been discussed with members of the Advisory Committee
on NASA Aviation Safety Reporting System. They advised that the Modifications would take effect with some changes, namely, even though a violation was found, no formal disciplinary action would be taken against the controllers if All the following conditions were present: (1) The violation is inadvertent, (2) the violation does not involve a criminal offense or accident or actions which disclose a lack of qualification, (3) the person is not the subject of evidence concerning a violation and (4) that the person prove within ten days after the violation that a completed written report of the incident had been submitted under ASRP.
The parties originally came before the Court on a request for a temporary restraining order, however, FAA agreed not to implement the Modifications as amended until after the Court had heard and ruled on PATCO's motion for a preliminary injunction. Just prior to the hearing on the pending motion, the plaintiff filed a suggestion for interim disposition in which PATCO suggested that the parties maintain the status quo pending submission of the case to arbitration. FAA has rejected that suggestion.
Although PATCO originally argued that FAA had violated the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and the Agreement, it now concedes that the grievance procedure set forth in the Agreement should be followed. Thus, PATCO agrees that this dispute should properly be submitted to arbitration and that the Court should not undertake to interpret the Agreement. It nevertheless seeks injunctive relief to maintain the status quo pending a final decision by the Arbitrator. It expressed a concern that if not enjoined, the FAA will take disciplinary action against controllers where permitted under the Modifications as amended by the June 28, 1979, letter from FAA to PATCO.
The FAA concedes that it intends to take disciplinary action in those cases where it is warranted and permissible under the Agreement as amended by the Modifications and the June 28, 1979 letter, but argues that in the event, an arbitrator determines FAA had no authority under the Agreement to incorporate the Modifications in the Agreement, all those controllers or employees who were improperly disciplined under the Modifications would be reinstated to their former status and their "records" expunged.
The criteria for injunctive relief in this circuit is set out in Virginia Petroleum Jobbers Assoc. v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958). Applying that criteria to the instant case means that PATCO must make a strong showing that it is likely to prevail on the merits, that without injunctive relief it will be irreparably injured, that the stay will not substantially injure others, and that the public interest would be protected. Id., U.S.App.D.C. at 110, F.2d at 925. The strict requirements set forth in Virginia Petroleum Jobbers have been somewhat modified by Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S.App.D.C. 220, 222-23, 559 F.2d 841, 843-44 (1977). The latter case makes clear that the injunctive relief is not to be determined based solely upon whether the movant has made out a mathematical probability of success. "The necessary "level' or "degree' of probability of success will vary according to the Court's assessment of the other factors". Id., 182 U.S.App.D.C. at 22, 559 F.2d at 843.
The Court after applying the above guidelines to the instant case concludes that PATCO is not entitled to injunctive relief. Bypassing the question of the probability of success on the merits for the moment, the Court cannot find that PATCO or its members will suffer irreparable harm if the injunction is not granted. PATCO concedes that the dispute between the parties should be submitted to arbitration pursuant to the Agreement. If the arbitrator finds in favor of PATCO, any disciplinary action taken against its members will be set aside and they will be returned to their former status. This was the representation by FAA in open court.
The question as to whether the stay would harm other parties and where lies the public interest are best considered together in the context of this case. FAA states that it seeks to modify the ASRP because the immunity feature has been used by some controllers to avoid enforcement action for violations of Federal Aviation Regulations. In short, it has concluded that some controllers deliberately report incidents to avoid being disciplined when they may have violated a rule or regulation. FAA has also concluded that, since it has found that most such information can be obtained from or furnished by other sources, that part of the program can no longer be justified. It is only a short step from that conclusion to a suggestion that perhaps the interests of the public are best served by the modification of the ASRP.
PATCO argues that the modification of the ASRP would mean that controllers will fail to report violations thereby making less information available for consideration and planning by the FAA. It is unnecessary for the Court to consider this argument except to note that the FAA has concluded that it would receive such information from other sources and to further note that neither side disputes that the controllers are required to report incidents which may endanger the public in any event.
PATCO suggests that the FAA is acting in bad faith. It notes that FAA refused to agree to expedited arbitration however, the Agreement makes clear that expedited arbitration may be used only when the parties mutually agree. (Plf.Ex.A, Article 7, Sec. 11.) PATCO also points to the failure of the FAA to institute the arbitration procedure once PATCO had requested it. The parties disagree over which has to take the necessary steps to institute arbitration. Regardless of the action or inaction of the FAA following the receipt of the PATCO letter requesting arbitration, it is clear that PATCO itself could have taken the next step under the agreement and yet neither side did anything for over two months. PATCO appears to be as much at fault in this regard as FAA.
Finally, PATCO has failed to demonstrate that it is likely to prevail on the merits. While the Court will not attempt to interpret Article 70 of the Agreement, since that matter is to be submitted for arbitration, it does note that Section provides that the program is subject to clarification or modification by the FAA at its discretion.
Taking all of the above factors into consideration, this Court concludes that PATCO is not entitled to injunctive relief and accordingly its motion for a preliminary injunction will be denied.
Before turning away from the issue as to whether PATCO is entitled to injunctive relief, the Court finds it necessary to very briefly address PATCO's "suggestions for interim disposition" and the cases cited therein.
At the hearing on the motions before the court, PATCO conceded that the Court only had authority at this time to grant injunctive relief in order to maintain the status quo pending submission of the dispute to arbitration under the terms of the Agreement. Plaintiff concedes that the Court should not concern itself with an interpretation of the Agreement or attempt to define the rights of the parties. The cases PATCO cites are in support of its request for a stay pending arbitration. The defendants oppose the request since they argue that for the Court to grant the stay is to grant the real relief now sought by PATCO.
This Court has already concluded that injunctive relief is inappropriate under the facts of this case since PATCO has failed to make a showing of irreparable harm. Part I, Supra. Furthermore, PATCO and its members on one side and the FAA on the other side have agreed under the Collective Bargaining Agreement to a procedure for handling such disputes. The cases cited by PATCO in support of their request that the Court maintain the status quo pending arbitration, are readily distinguishable. In Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad, 363 U.S. 528, 80 S. Ct. 1326, 4 L. Ed. 2d 1379 (1960), the court approved the granting of an injunction since that action preserved the jurisdiction of the Adjustment Board under the Railway Labor Act. The court also noted that: "(T)he dispute out of which the judicial controversy arose does not merely concern rates of pay or job assignments, but rather involves the discharge of employees from positions long held and the dislocation of others from their homes". Id. at 534, 80 S. Ct. at 1330. The facts in two other cases cited by PATCO, Brotherhood of Railway, Airline Clerks v. Railway Express Agency, 409 F.2d 312 (2d Cir. 1969), Westchester Lodge 2186 v. Railway Express Agency, 329 F.2d 748 (2d Cir. 1964), are similar to those in the above case and those courts approved injunctive relief to maintain the jurisdiction of the Board taking into consideration as well the potential hardship to the members of the union. In Spokane, Portland and Seattle v. Order of Railway Conductors and Brakemen, 265 F. Supp. 892, 894 (D.DC 1967), the court enjoined the railroad from making changes in the size of train crews noting that some crewmen would be displaced and out of work and further noting that the railroad could have submitted its request to the National Railroad Adjustment Board rather than acting on its own.
As noted, the above cases are clearly distinguishable from the instant case since here, injunctive relief is not required to preserve the arbitration process agreed to by the parties And because PATCO is unable to demonstrate that its members will suffer irreparable injury if injunctive relief is not granted. In the cited cases, the employees faced the possibility of transfers or dislocation in circumstances under which even if they were to ultimately prevail before the Adjustment Board, would cause them to suffer permanent injury and harm.
The final issue is whether this action should now be dismissed.
The parties had previously entered into a Collective Bargaining Agreement which provides that such disputes are to be submitted for arbitration. PATCO, on behalf of its members has pressed their claims with the FAA and before this Court and presumably will continue to do so when that matter is submitted to arbitration. The exclusive remedy for pursuing such claims is set forth in the Agreement signed by the parties and the Court, under such circumstances, should neither intervene nor interfere. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965); Haynes v. United States Pipe and Foundry Co., 362 F.2d 414 (5th Cir. 1966). "(W)hen a dispute arises within the scope of a collective bargaining agreement, the parties are relegated to the remedies which they provided in their agreement". 362 F.2d at 417. What has been said in Haynes applies with equal force here. PATCO's exclusive remedy under the facts of this case is under the terms of the Agreement. This being the case, and the Court having denied injunctive relief as well, it follows that this case should be dismissed.
In view of the above, the Court shall grant defendant's motion for summary judgment and dismiss this action.
It is hereby
ORDERED that the plaintiff's motion for a preliminary injunction is denied, and it is further
ORDERED that the defendants motion for summary judgment is granted, and it is further
ORDERED that this case is dismissed.
Enter Judgment accordingly.