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March 29, 1988

Air Line Pilots Association, International, Plaintiff,
Eastern Air Lines, Inc., Defendant

Barrington D. Parker, Senior District Judge.

The opinion of the court was delivered by: PARKER

Barrington D. Parker, Senior District Judge:

 This matter, arising under the Railway Labor Act ("RLA" or "Act"), 45 U.S.C. §§ 151 et seq., presents the question -- does management have an unrestricted right to pursue pre-strike preparations or is it constrained by contractual obligations embodied in an existing collective bargaining agreement?


 On March 2, 1988, Air Line Pilots Association, International ("ALPA") filed a complaint accompanied by a motion for preliminary injunction seeking to prohibit Eastern Air Lines, Inc. ("Eastern" or "Air Lines") from utilizing non-Eastern pilots on training and other flights in preparation and contemplation of performing future services for the Air Lines. Plaintiff ALPA alleged that the operation of training flights by pilots not on the Eastern seniority roster *fn1" constituted a violation of an existing collective bargaining agreement ("Agreement") between the two. The training flights were started pursuant to a January 1988 contract between Eastern and Orion Lift Services Inc. ("Orion"), a non-union company. The contract obligated Orion to train and to supply pilots to operate Eastern's aircraft. Eastern claimed that the contract enabled it to build up a reserve of pilots in preparation for a possible strike by its machinists *fn2" which in turn would likely be followed by a sympathy strike of ALPA's pilots.

 ALPA alleged in its complaint that Eastern's conduct triggered a "major dispute" *fn3" under the RLA and violated the status quo collective bargaining and noninterference obligations under the Act. Eastern moved to dismiss the complaint, contending that the alleged violation of the Agreement was a "minor dispute" and was within the exclusive jurisdiction of an arbitration board grievance procedure provided under the ALPA-Eastern Agreement and therefore not justiciable in a federal court. Eastern also opposed plaintiff's motion for preliminary injunctive relief on various grounds including a contention that if such relief were granted, it would cause severe financial hardship for Eastern while at the same time, claiming that if such relief were denied, it would not cause irreparable harm to ALPA.

 The Court has considered and assessed the credibility of the witnesses, reviewed the relevant exhibits and other evidence submitted by each party, considered the legal memoranda and oral argument of their counsel, and concludes that Eastern's motion to dismiss the complaint should be denied and that ALPA's application for a preliminary injunction against Eastern Air Lines should be granted.

 In accordance with Rule 52(a), Fed. R. Civ. P., the Court's findings of fact and conclusions of law are set out below:



 Plaintiff ALPA is the authorized collective bargaining representative for all airline pilots employed by Eastern and is a "representative" under the Act, 45 U.S.C. § 151, Sixth. As representative for Eastern pilots, ALPA has the exclusive authority to negotiate and conclude agreements with Eastern covering rates of pay, rules and working conditions. Defendant Eastern is an air carrier principally engaged in operating passenger flights in interstate and foreign commerce. Plaintiff and defendant have been parties to successive collective bargaining agreements under the Act for more than 40 years. The current ALPA-Eastern Agreement, P. Ex. 1, is not amendable -- nor subject to renegotiation -- until July 1, 1988. *fn5"

 The present Agreement expressly requires Eastern to utilize only those pilots listed on Eastern's System Seniority List to perform any and all Eastern flying. In particular, the scope clause -- section 1(B) of the Agreement provides:

It is agreed that all present or future flying, including flight training (except for initial factory-conducted training in newly purchased equipment), revenue flying, ferry flights, charters and wet-leases performed in or for the service of Eastern Air Lines, Inc., shall be performed by pilots whose names appear on the then-current Eastern Air Lines' System Seniority List. (emphasis added)

 The plain language of the Agreement requires that Eastern utilize pilots from the System Seniority List to perform any type of flying -- including ferry flights that transfer Eastern aircraft from one city to another and all flying on Eastern aircraft undertaken to train pilots to perform future Eastern revenue flying.

 Eastern's Vice President Matthews conceded in his testimony on March 14, 1988, that the broad language of the scope clause prohibits Eastern from utilizing pilots from other companies to operate its aircraft over the revenue routes, including passenger operations, in the absence of an ongoing pilots strike at Eastern. Tr. at 11, 12. He testified that neither the existing shortage of pilots nor the company's financial distress would justify using non-union pilots and violating the scope clause.

 In accordance with the proscriptions of the scope clause, Eastern has never permitted pilots to operate training flights, ferry flights or any other flying on Eastern aircraft if their names were not included on the System Seniority List. While Eastern had occasionally "dry leased" *fn6" its aircraft to competitors or independent air carriers, it had never before leased aircraft to another company for the sole purpose of permitting non-Eastern pilots to perform Eastern revenue flying or training to perform future Eastern revenue flying on the leased aircraft.


 As already noted, the source of the current dispute is the threat of a machinist strike at Eastern and a potential sympathy strike by ALPA pilots. Eastern is currently engaged in mediation negotiations with the IAM which represents mechanics and other designated personnel of Eastern. The ongoing negotiations before the National Mediation Board ("NMB") relate to certain provisions and proposed changes in the IAM-Eastern collective bargaining agreement. At the point the NMB declares an impasse in the negotiation efforts, both Eastern and IAM may then engage in lawful self-help after a 30-day cooling off period. 45 U.S.C. § 155, First. Should a machinists strike occur, followed by picketing, other unions at Eastern are entitled to honor the picket line and engage in a sympathy strike.

 For several months Eastern has undertaken substantial preparations to ensure the operation of its passenger flights in the event of a machinist strike and a possible sympathy strike by ALPA. It claims that such actions have been necessary due to ALPA's refusal to indicate whether it will honor the IAM picket lines. *fn7" On January 1, 1988 Eastern contracted with Orion, an independent FAA certified air carrier to perform certain Eastern revenue flying on 30-days notice. The contract provides that Orion will train 350-400 pilots none of whom are included on the System Seniority List. At the preliminary injunction hearing Eastern represented that Orion pilots would only operate Eastern revenue flights in the event of a future machinist strike followed by an ALPA sympathy strike. ...

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