United States District Court for the District of Columbia
June 20, 2005.
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, Plaintiff,
NATIONAL MEDIATION BOARD et al., Defendants.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
DENYING THE PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
This case comes before the court on the plaintiff's motion for
a preliminary injunction.*fn1 The plaintiff, the
International Association of Machinists and Aerospace Workers
("IAM"), is a labor organization representing employees in the
railroad industry. One of the defendants, the National Mediation
Board ("NMB" or "Board"), is the federal agency currently
mediating a labor dispute between IAM and the rail carriers
represented by the National Carriers Conference Committee
("NCCC") pursuant to the Railway Labor Act, 45 U.S.C. § 151 et
seq. Defendants Edward J. Fitzmaurice, Jr. and Read Van de Water are members of
the NMB board, and defendant Harry R. Hoglander is Chairman of
the NMB. The plaintiff seeks an injunction to compel the
defendants to terminate mediation and proffer arbitration in the
labor dispute. The court denies the plaintiff's motion for a
preliminary injunction because the plaintiff fails to demonstrate
that it is likely to succeed on the merits, that it will suffer
irreparable harm, or that a preliminary injunction furthers the
In late 1999, IAM (the collective bargaining representative for
nearly 8,000 rail carrier employees) and the rail carriers
represented by NCCC exchanged notices proposing changes to
collective bargaining agreements.*fn2 Compl. ¶ 8. From
January 2000 to February 2001, IAM and the NCCC met for
bargaining at least twelve times, but the parties were unable to
reach an agreement on issues concerning wages and the size of the
retroactive employee contribution to health and welfare. Id. ¶¶
9, 12 13. The NCCC invoked the NMB's mediation services in
February 2001.*fn3 Id., Ex. D. IAM and the carriers have
been involved in the NMB mediation process since that time. Id.
Between February 2001 and January 2005, IAM and the NCCC
attended thirteen NMB mediation sessions. Id. ¶¶ 12, 15.
Representatives of the parties have also met privately with the NMB on a few occasions. Defs' Opp'n to Pl.'s Mot. for Prelim. and
Permanent Inj. Relief, Gibbons Decl. ¶ 33 ("Gibbons Decl.");
Compl., Ex. G. In April 2002, IAM made a request that the NMB end
mediation and proffer arbitration. Gibbons Decl. ¶ 29. A "proffer
of arbitration" is an industry term describing the Railway Labor
Act requirement that the NMB endeavor parties to submit their
dispute to arbitration once its mediation efforts have failed.
Pl.'s Mot. for Prelim. and Permanent Injunctive Relief, Reynolds
Decl. ¶ 5 ("Reynolds Decl."). See also 45 U.S.C. § 155. IAM has
requested that the NMB end mediation and proffer arbitration
numerous times since the April 2002 request, including two
additional times in 2002, four times in 2003, three times in
2004, and one time in 2005. Gibbons Decl. ¶ 29; Compl. ¶¶ 19-25,
Despite IAM's requests for a proffer, the NMB has not yet
issued a proffer recommendation. In April 2004, NMB staff made a
recommendation on the proffer request to the three NMB board
members, defendants Hoglander, Fitzmaurice, and Van de Water.
Pl.'s Reply Mem. in Supp. of Pl.'s Mot. for Prelim. and Permanent
Injunctive Relief ("Pl.'s Reply") at 9. On April 20, 2004,
Hoglander voted in favor of the proffer, and on May 4, 2004, Van
de Water voted against the proffer. Reynolds Decl. ¶ 28. Board
member Fitzmaurice did not vote on the proffer request. Id. Two
Board members must vote in favor of the proffer request before
the NMB may terminate the mediation process. Gibbons Decl. ¶ 33.
To this day, Fitzmaurice has not voted on the proffer request.
Pl.'s Reply at 9. Additionally, in mid-2004, Hoglander advised
IAM that the NMB has been unable to issue a proffer
recommendation because the other two Board members believe that
the parties are still in negotiations. See Pl.'s Reply, Roach
Decl. Ex. A. The plaintiff characterizes the NMB's refusal to
proffer arbitration as akin to "imprisoning the union until it
confesses that the Board knows better." Pl.'s Reply at 9. The parties' relationship is further complicated by a September
2004 e-mail exchange. Specifically, on September 15, 2004, a
Union Pacific Railroad employee, James C. Miller, sent an e-mail
to the NMB stating that he worked for the Union Pacific Railroad
and that he belonged to a machinists' union in North Platt,
Nebraska. Compl., Ex. K. Miller wrote, "5 years without a
contract seems long enough, by Law should'ent [sic] this be
resolved, is this not why the NMB was formed?" Id. Daniel
Rainey, the head of the NMB's Office of Alternative Dispute
Resolution Services, advised Miller that the NMB did not have an
application for mediation between the Union Pacific Railroad and
IAM. Id., Ex. L. As a result, Rainey directed Miller to
"consult with [his] union representative regarding this matter."
Id. Rainey's letter adds that Miller may wish to consult the
union's procedures or a private attorney if he felt that his
union was not representing his interests. Id.
On April 20, 2005, the plaintiff filed a complaint for
declaratory and injunctive relief along with a motion for a
preliminary injunction. As of the date the complaint was filed,
the dispute has been on the NMB's mediation docket for about four
years. The court now turns to the preliminary injunction motion.
A. Legal Standard for Injunctive Relief
This court may issue interim injunctive relief only when the
(1) a substantial likelihood of success on the
merits, (2) that it would suffer irreparable injury
if the injunction is not granted, (3) that an
injunction would not substantially injure other
interested parties, and (4) that the public interest
would be furthered by the injunction. Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir.
1998) (quoting CityFed Fin. Corp. v. Office of Thrift
Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)); see also World
Duty Free Americas, Inc. v. Summers, 94 F. Supp. 2d 61, 64
(D.D.C. 2000). It is particularly important for the movant to
demonstrate a substantial likelihood of success on the merits.
Cf. Benten v. Kessler, 505 U.S. 1084, 1085 (1992) (per curiam).
Indeed, absent a "substantial indication" of likely success on
the merits, "there would be no justification for the court's
intrusion into the ordinary processes of administration and
judicial review." Am. Bankers Ass'n v. Nat'l Credit Union
Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999) (internal
The four factors should be balanced on a sliding scale, and a
party can compensate for a lesser showing on one factor by making
a very strong showing on another factor. CSX Transp., Inc. v.
Williams, ___ F.3d ___, 2005 WL 1023044 (D.C. Cir. May 3, 2005)
(citing CityFed Fin. Corp., 58 F.3d at 747). "An injunction may
be justified, for example, where there is a particularly strong
likelihood of success on the merits even if there is a relatively
slight showing of irreparable injury." CityFed Fin. Corp.,
58 F.3d at 747.
Moreover, the other salient factor in the injunctive-relief
analysis is irreparable injury. A movant must "demonstrate at
least `some injury'" to warrant the granting of an injunction.
CityFed Fin. Corp., 58 F.3d at 747 (quotation omitted). Indeed,
if a party makes no showing of irreparable injury, the court may
deny the motion for injunctive relief without considering the
other factors. Id.
Because interim injunctive relief is an extraordinary form of
judicial relief, courts should grant such relief sparingly.
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). As the Supreme Court has said, "[i]t frequently is observed that a preliminary
injunction is an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing,
carries the burden of persuasion." Id. (citation omitted).
Therefore, although the trial court has the discretion to issue
or deny a preliminary injunction, it is not a form of relief
granted lightly. In addition, any injunction that the court
issues must be carefully circumscribed and tailored to remedy the
harm shown. Nat'l Treasury Employees Union v. Yeutter,
918 F.2d 968, 977 (D.C. Cir. 1990) (citation omitted).
B. The Court Denies the Plaintiff's Motion for a Preliminary
Because the plaintiff has not made the requisite showing on
three parts of the preliminary injunction test, substantial
likelihood of success on the merits, irreparable harm, and public
interest, the court denies the plaintiff's motion. The
preliminary injunction factors are discussed individually below.
1. The Plaintiff Fails to Show a Substantial Likelihood of
Success on the Merits
The plaintiff claims that the defendant violated section 5 of
the Railway Labor Act, 45 U.S.C. § 155, by refusing to proffer
arbitration after mediation proved unsuccessful. Compl. at 2. The
plaintiff asks the court to order the defendant to terminate
mediation and proffer arbitration. Id. at 11. A court's
authority to review the NMB's decision to keep a dispute in
mediation is limited to those extraordinary and exceptional
situations in which the NMB's actions constitute patent official
Local 808, Bldg., Maint., Serv. and R.R.
Workers v. Nat'l Mediation Bd., 888 F.2d 1428, 1434 (D.C. Cir. 1989)
("Local 808") (citing Int'l Ass'n of Machinists and Aerospace
Workers, AFL-CIO v. Nat'l Mediation Bd., 425 F.2d 527, 537, 543
(D.C. Cir. 1970) ("IAM 1")).
The plaintiff argues that it is likely to succeed on the claim
that the defendants have violated the Railway Labor Act because
the defendants' actions during the mediation constitute patent
official bad faith. Pl.'s Mot. for Prelim. and Permanent
Injunctive Relief ("Pl.'s Mot.") at 13. Specifically, the
plaintiff has identified the following three factors in support
of its request for injunctive relief: (1) the length of time that
has elapsed without a proffer of arbitration, (2) Board Member
Fitzmaurice's inaction on IAM's February 2004 request for a
proffer of arbitration, and (3) the September 2004 letter from
the NMB to an IAM member. Pl.'s Reply at 4-9. The plaintiff
asserts that these three factors demonstrate the defendants'
patent official bad faith and a substantial likelihood of success
on the merits. The court disagrees and holds that these three
factors, discussed individually below, are not sufficient to show
that the plaintiff has a substantial probability of success on
the claim that the NMB violated the Railway Labor Act by acting
with patent official bad faith.
a. Length of Time
The plaintiff's primary argument is that the dispute has been
in mediation for such a long period of time that the defendants'
refusal to proffer arbitration indicates bad faith. Pl.'s Mot. at
4. The NMB's power to hold the parties in mediation is an
important tool to bringing the parties to conciliation. Local
808, 888 F.2d at 1438; Int'l Ass'n of Machinists and Aerospace
Workers, AFL-CIO v. Nat'l Mediation Bd., 930 F.2d 45, 49
(D.C. Cir. 1991) ("IAM 2") (stating that "the Board is entitled
to use time alone to wear down an obdurate bargainer"). Indeed,
the Railway Labor Act does not have any express time limit on mediation and
its "procedures are purposely long and drawn out." Local 808,
888 F.2d at 1438; IAM 1, 425 F.2d at 534. Additionally,
contrary to the plaintiff's contention,*fn5 "[t]he proper
time for a dispute to remain in mediation is not susceptible of
any objective or statistical estimation by the court." Local
808, 888 F.2d at 1438. Larry Gibbons, Director of the NMB's
Office of Mediation Services, observed that a number of cases on
the NMB's mediation docket have been in mediation for longer than
the case at bar. Gibbons Decl. ¶ 12 and Attach. 2. Contrary to
IAM's statement that "`# of days' for the other allegedly similar
situations" is irrelevant, Pl.'s Reply at 5, it is appropriate
for a court to compare the time in mediation in the case at bar
with the time in mediation in other Railway Labor Act disputes.
Local 808, 888 F.2d at 1439. Additionally, "even if the period
in mediation has exceeded the norm, this does not mean that there
has been patent bad faith on the part of the Board." Id. at
1440. "Only in the most extreme circumstances will a court find a
period to be completely and patently unreasonable so as to
indicate patent official bad faith." Id.; see also IAM 1,
425 F.2d at 541 (holding that the court could not require the NMB to
proffer arbitration even when the amount of time spent in
mediation was more than customary). Because the case at hand is
not unusual in comparison to other NMB disputes, it is unlikely
that the plaintiff could succeed on the merits based on the
length of time the dispute has been in mediation.
b. Board Member's Inaction on IAM's Request for Proffer
The plaintiff also contends that defendant Board Member
Fitzmaurice's lack of vote on the IAM proffer request "prevents the Board from acting" and is
further proof of the NMB's bad faith. Pl.'s Mot. at 3. The NMB's
inaction, however, may serve as a mediation technique because
"withholding of the proffer is a `crucial' tool for encouraging
compromise and settlement." Local 808, 888 F.2d at 1443. For
example, "[a]n NMB member may legitimately indicate an
unwillingness to move a dispute out of mediation in order to
pressure the parties to settle." Id. at 1441. In other words,
"the actions of the NMB are easily explained as common mechanisms
for bringing recalcitrant parties to the table." Id. at 1442.
As such, Fitzmaurice's lack of vote is unlikely to be enough for
the plaintiff to succeed on the merits.
c. September 2004 Letter from the NMB to an IAM Member
Lastly, the plaintiff points to the "anti-union animus" in the
September 2004 letter from Rainey to a Union Pacific Railroad
employee as evidence of the NMB's patent official bad faith.
Pl.'s Mot. at 3; Pl.'s Reply at 11. The plaintiff claims it was
hostile and accusatory for Rainey to tell the employee that he
may want to consult the internal union rules or a private
attorney if he believed the union was not adequately representing
his interests. Pl.'s Reply at 11. The plaintiff contends that the
statement was meant to imply that IAM is responsible for the
stalemate in negotiations. Id. On its face, however, the
statement is not evidence of patent official bad faith because in
advising the employee of the possibility of procuring legal
advice, Rainey "was simply stating the law," and "a statement of
the law as it is cannot be interpreted as a sign of patent
official bad faith." Local 808, 888 F.2d at 1441. Additionally,
the court is "not entitled to prevent the Board from
experimenting with any mediation device that . . . does not
independently offend other laws." IAM 2, 930 F.2d at 48.
Because judicial review of NMB decisions is reserved only for
the most extreme situations and the three factors described by the plaintiff do
not clearly evidence patent official bad faith, the court
concludes that the plaintiff is not likely to be successful on
2. The Plaintiff Fails to Show Irreparable Harm
Assuming arguendo that the plaintiff was able to sufficiently
demonstrate a likelihood of success on the merits of the claim,
the court would nevertheless deny the request for injunctive
relief because the plaintiff has not shown that irreparable harm
is likely to result from the defendants' actions. The plaintiff
claims that its members have suffered and continue to suffer
irreparable harm because retired workers will receive reduced
pensions, and older workers near retirement will have to work
longer to benefit from the higher, negotiated wages. Pl.'s Mot.
at 4. The plaintiff also claims that IAM machinists are "entitled
to see the major dispute process progress to the next step
contemplated by the statute so that a new agreement can be
reached." Id. In essence, the plaintiff contends that its
members are being deprived of the higher wages that would result
from a new agreement. See, e.g., Reynolds Decl. ¶ 32-33.
But, a loss of income does not constitute irreparable injury
because the financial loss can be remedied with money damages.
Davenport v. Int'l Bhd. of Teamsters, AFL-CIO, 166 F.3d 356,
367 (D.C. Cir. 1999) (holding that money damages could remedy the
harm caused by increased working hours and decreased benefits)
(citing Sampson v. Murray, 415 U.S. 61, 90 (1974), a wrongful
discharge case that held that loss of earnings or damage to
reputation does not constitute irreparable injury). It is
well-settled that economic loss alone will rarely constitute
irreparable harm. Wisconsin Gas Co. v. Fed. Energy Regulatory
Comm'n, 758 F.2d 669, 674 (D.C. Cir. 1985); Barton v. District
of Columbia, 131 F. Supp. 2d 236, 247 (D.D.C. 2001) (Urbina,
J.). Because money damages can adequately compensate monetary
loss, the plaintiff has not shown that it will suffer irreparable harm.
3. A Preliminary Injunction Might Substantially Injure Other
The plaintiff argues that "the NMB will suffer no harm
whatsoever if an injunction is ordered." Pl.'s Mot. at 13. But,
the NMB is not the only interested party in this case. The NCCC
is also an interested party, and granting the preliminary
injunction would also harm the rail carriers. See, generally,
Int'l Ass'n of Machinists and Aerospace Workers, AFL-CIO v. Nat'l
Mediation Bd., 180 F.Supp.2d 188, 190 (D.D.C. 2002) ("IAM 3")
(analyzing a preliminary injunction motion by IAM against the NMB
and stating that the carrier and the union would both be harmed).
In other words, "the harms seem to be evenly balanced," id.,
and a preliminary injunction might harm other interested parties.
4. The Plaintiff Fails to Show That a Preliminary Injunction Is
in the Public Interest
The parties agree that the public interest lies in following
the dispute resolution process established by the Railway Labor
Act. See Pl.'s Reply at 12 (stating that "[t]he public interest
lies in the settlement of disputes consistent with the process
established by Congress.") and Defs' Opp'n to Pl.'s Mot. for
Prelim. and Permanent Inj. Relief at 27. The parties disagree,
however, on whether the NMB has properly followed the dispute
resolution process established by the Railway Labor Act.
Recognizing that in a labor dispute "courts have no special
competence to say where the public policy lies," IAM 3,
180 F.Supp.2d at 190, the court feels that "[t]here is a broader
concern, that inquiry as to the reasoning process in regard to
maintenance of mediation is destructive of the mediation process
in general, including future cases not yet born." IAM 1,
425 F.2d at 540. Indeed, "intrusive judicial scrutiny would likely
prolong the dispute litigation hardens the parties' positions
and `the artificial pressure and distortion of an appeal to the
courts further detracts from the mediatory effort." IAM 2,
930 F.2d at 49. The court therefore believes that the public interest likely
lies in keeping the dispute in the mediation process as
envisioned by the Railway Labor Act.
Because the plaintiff does not meet three out of the four
factors of the preliminary injunction test, the courts denies the
For the foregoing reasons, the court denies the plaintiff's
motion for a preliminary injunction. An order consistent with
this Memorandum Opinion is separately and contemporaneously
issued this 20th day of June, 2005.