The opinion of the court was delivered by: James Robertson, United States District Judge
MEMORANDUM ORDER DENYING PRELIMINARY INJUNCTION
Plaintiff National Railroad Corp. (Amtrak) moves for injunctive relief under the Railway Labor Act, 45 U.S.C. § 151, et seq., to restrain the Transport Workers Union of America, AFL CIO, (TWU), the Brotherhood of Maintenance of Way Employees (BMWE), the Service Employees International Union's National Council of Firemen and Oilers (SEIU–IBOFO), and the Hotel Employees and Restaurant Employees International Union (HERE) from staging a one-day work stoppage.*fn1 The unions characterize this work stoppage as a political protest against the failure of the Bush Administration and Congress to provide adequate funding for Amtrak; Amtrak calls it an unlawful strike.
The matter was first presented to this Court on September 29, 2003, as a motion for a temporary restraining order, the unions having announced at a rally on September 17, that October 3 would be the date of the work stoppage. The parties agreed that the work stoppage could be postponed in order to permit a more deliberate consideration of the issues presented, however, and the preliminary injunction motion that is now before me for decision was set for hearing on November 14, 2003.
On November 13, 2003, the day before Amtrak's motion was set for hearing, the FY 2004 federal subsidy for Amtrak was resolved by a House/Senate Conference Committee, which settled on $1.22 billion, 149 Cong. Rec. H12,323-12,746 (daily ed. Nov. 25, 2003), some $600 million less than the $1.8 billion Amtrak had stated publicly was its bare bones minimum. Indeed, in early September 2003, after the Senate had approved a $1.3 billion subsidy and the House a $900 million subsidy, Amtrak issued an"Employee Advisory" describing any number short of $1.8 billion as a threat to the continued safe operation of large parts of the system at the very least, and, possibly, as a threat to the continued existence of Amtrak itself. See Moneypenney Decl., Ex. 3. It was after the issuance of that Amtrak"Employee Advisory" that the TWU announced that it would hold a rally on September 17, 2003, and that its workers, along with the members of four other unions, would not work on October 3, 2003.
Edward Walker testified at the preliminary injunction hearing that the planned one-day work stoppage (or strike: the words will be used interchangeably in this memorandum, notwithstanding the great weight each side attaches to its own choice of words) would irreparably injure Amtrak. That point is not disputed, and so it is unnecessary to dwell upon the nuances of Mr. Walker's testimony to the effect that a one-day work stoppage now, during the holiday season, would be even more devastating than it would have been on October 3, 2003, as originally planned; that the work done by the defendant unions includes safety critical functions, the withholding of which would render Amtrak unsafe; and that employees not affiliated with the striking unions would be essentially inhibited by picket lines, so that the strike could not be limited in its effect to the unions sponsoring the work stoppage. Similarly, there is no genuine dispute that the unions are aggrieved by what they perceive to be Congressional under-funding of Amtrak, and so the testimony of Charles Moneypenney of TWU and Donald Griffin of the BMWE about the unions' concerns for safety on the railroad will not be gainsaid or second-guessed.
There is a dispute however –- and it is the central dispute that must be resolved on this motion for preliminary injunction –- about whether the unions' grievance with Congress and the President is the real reason for the planned work stoppage, and about whether or not the Railway Labor Act (RLA) applies in the situation presented by this case. If the RLA does apply, an injunction should issue against the work stoppage, because such a stoppage would violate the status quo.*fn2 Consol. Rail Corp. v. Ry. Labor Executives' Ass'n, 491 U.S. 299, 303 (1989). If it does not apply, the procedural and substantive requirements of the Norris-LaGuardia Act (NLGA) would make the issuance of an injunction in this situation virtually impossible, 29 U.S.C. § 101.
The RLA makes it the"duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof." 45 U.S.C. § 152. The unions' position is that the RLA is inapplicable because the dispute giving rise to the work stoppage is not"between the carrier and the employees thereof," but between the unions and two branches of the government. Amtrak responded to that assertion with a raised eyebrow even back in September, when Congress had yet to act on the 2004 Amtrak subsidy. Now, Amtrak responds that, whatever the original merits of the union's argument, it stands refuted, if not mooted, by the Conference Committee report, which has effectively put an end to the 2004 budget subsidy dispute. In any case, Amtrak argues, the unions' claim of a political motive is pretextual, and the planned work stoppage is really union muscle-flexing designed to gain a strategic advantage in ongoing negotiations over new collective bargaining agreements.
The factual picture that emerged from the evidentiary hearing held on this motion makes it hard to determine which side has the better of the argument about the unions' real purpose, and it is indeed possible that a measure of the truth lies on both sides. Joseph Brest, Amtrak's vice-president for labor relations, described the relationship between Amtrak's Congressional appropriations and its collective bargaining. He pointed out that in 1997 the unions agreed to contingency clauses in their collective bargaining agreements, the effect of which was to release Amtrak from obligations to pay wage increases if Congressional appropriations did not satisfy the minimum set forth in the contingency clauses. See Ex. 3L. Although these contingencies have never been invoked, Mr. Brest's testimony suggested that a work stoppage intended to encourage Congress to increase Amtrak's subsidy would also be intended, at least in part, to keep Amtrak from invoking its contingency clauses. Moreover, Mr. Brest testified that Amtrak is now in negotiation with the four remaining union defendants on the terms of the next collective bargaining agreements, and that no agreement has been reached with any of them. He also said that the IBEW, one of the five unions originally stating an intention to stop work on October 3, has reached agreement with Amtrak and will not strike.
Charles Moneypenney of the TWU testified that the purpose of the work stoppage would be to draw as much attention as possible to Amtrak's safety issues, before accidents happen. He said the determination to stop work came after the publication of the September 8 Employee Advisory by David Gunn, Amtrak's CEO. Mr. Gunn's Advisory stated that, if Amtrak's subsidy did not reach the $1.8 billion level, critical infrastructure and equipment repairs would be in jeopardy and"on any given day something could fail...." Id. at 2. Responding to the suggestion that the November 13 Conference Committee decision had "mooted" the unions' stated purpose, Mr. Moneypenney asserted that the unions' purpose of informing the public was not moot at all. He stated that Amtrak will likely require a supplemental appropriation during FY 2004, as a consequence of the underfunding. In the meantime, members of his union and the public would be on Amtrak trains every day, subjected to increased safety risk. Mr. Moneypenney conceded on cross examination that TWU is frustrated with the pace of negotiations over a new contract and concerned that Amtrak will readjust its budget and reduce labor costs following the Conference Committee's decision. He also conceded that a portion of the capital budget for Amtrak might be used to repair wrecked passenger cars and that this would likely translate into more work for TWU members, but he continued to maintain that the purpose of the proposed work stoppage is to draw attention to safety issues.
Donald Griffin of the Brotherhood of Maintenance of Way Employees (BMWE) also denied that the proposed work stoppage was aimed at the collective bargaining process. He testified that the Conference Committee's decision would allocate approximately $750 million in operating funds to Amtrak and $450 million for capital improvements. The operating funds (which include labor costs) are on par with Mr. Gunn's appropriation request; the shortfall is in the amount allocated for capital improvements (infrastructure repairs to, for example, ties, bridges, and a portal bridge in Newark, New Jersey). Mr. Griffin also testified that there is no direct passthrough of Congressional appropriations to labor costs, so that, even if a work stoppage should succeed in persuading Congress to provide the full $1.8 billion, the union members' terms of employment likely would not be affected.
Amtrak argues that, even if the stated purpose of the work stoppage is accepted at face value, such a politically motivated strike nevertheless qualifies for coverage under the RLA because the employer-employee relationship is"the matrix of the controversy." This language comes, as does Amtrak's argument, from Jacksonville Bulk Terminals v. International Longshoremen's Ass'n., 457 U.S. 702 (1982), in which the Supreme Court interpreted the term"labor dispute" as it is used in the NLGA and the National Labor Relations Act (NLRA). That case involved a work stoppage to protest the Soviet Union's intervention in Afghanistan. The Court held that the protest was a"labor dispute" under both the NLGA and the NLRA, notwithstanding that it was not directed at the employer, because the"employer-employee relationship is the matrix of the controversy." Id. at 712. In Amtrak's submission, any dispute that would be a"labor dispute" under the NLGA or NLRA is covered by RLA, and, under Jacksonville Bulk Terminals, the RLA is properly invoked to restrain a"political" work stoppage whose"matrix" is the employer-employee relationship.
Amtrak's reliance on Jacksonville Bulk Terminals is misplaced. It is true that judicial interpretations of the RLA have been informed by cases interpreting the NLGA and the NLRA, see, e.g., Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Ass'n, 491 U.S. 490, 509 (1989), but none has said that the RLA's coverage of disputes"between the carrier and the employees" is as broad as the term"labor dispute" found in the NLGA and the NLRA. Compare 29 U.S.C. § 113(c), and 29 U.S.C. § 152(9), with 45 U.S.C. § 152 First. Moreover, Congress deliberately gave broad meaning to the term"labor dispute" in the NLGA:"Congress attempted to write its bill in unmistakable language because it believed previous measures looking toward the same policy against non-judicial intervention in labor disputes had been given unduly limited constructions by the Courts." Burlington N. R. Co. v. Bhd. of Maint. of Way Employees, 481 U.S. 429, 441 (1987) (internal quotation marks and citation omitted).
One central purpose of the RLA is of course to prevent strikes and resulting interruptions to commerce, but the Act does not impose an absolute bar against strikes. Instead, it establishes procedures for channeling disputes into a dispute resolution process. See Burlington N. R. Co., 481 U.S. at 444-45; Detroit & T. S. L. R. Co. v. United Trans. Union, 396 U.S. 142, 152 (1969). In the context of major disputes, it delays strikes until the dispute resolution process has been exhausted, Burlington Northern, 481 U.S. at 445, while in minor disputes, parties are channeled into arbitration, Brotherhood of R.R. Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 36-37, 39 (1957). In this case, Amtrak has made no effective rejoinder to the unions' argument that their dispute with Congress and with the administration over Amtrak funding cannot be resolved by negotiation, mediation, or arbitration with Amtrak. A dispute that cannot be resolved through the dispute resolution processes established by the RLA does not trigger the RLA.
Two cases upon which Amtrak relies, Delta Airlines, Inc. v. Air Line Pilots Ass'n., 238 F.3d 1300 (11th Cir. 2001), and United Airlines, Inc. v. International Ass'n. of Machinists and Aerospace Workers, 243 F.3d 349 (7th Cir. 2001), counsel careful scrutiny of stated motivations for walkouts or work stoppage. Both, however, are distinguishable on their facts. In Delta Airlines, the Eleventh Circuit applied the RLA to enjoin pilots from refusing to work voluntary overtime, even though the union claimed that the refusal was a personal choice of the pilots, actively discouraged by the union itself. 238 F.3d at 1309. In United Airlines, the Seventh Circuit applied the RLA to enjoin a slowdown by mechanics, allegedly in response to the termination of certain employees, even though the union did not encourage the ...