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Atlas Air, Inc. v. International Brotherhood of Teamsters

United States District Court, District of Columbia

November 30, 2017

ATLAS AIR, INC., et al., Plaintiffs,



         This matter is currently before the Court on Plaintiffs' motion for a preliminary injunction, Dkt. 5, and Defendants' motion to dismiss, Dkt. 51.

         The case grows out of a labor dispute between Plaintiffs Atlas Air, Inc. and Polar Air Cargo Worldwide, Inc. (collectively “Atlas”) and Defendants International Brotherhood of Teamsters; International Brotherhood of Teamsters, Airline Division; and Airline Professionals Association of the International Brotherhood of Teamsters, Local Union No. 1224 (collectively “the Union”). Atlas is an airline that operates cargo and passenger flights for commercial customers (such as Amazon, DHL, Qantas, Nippon Cargo Airlines, and Hong Kong Air Cargo Carrier) and the U.S. military. It operates both long-haul, international and domestic flights. The Union is the certified exclusive bargaining representative of Atlas's pilots. Atlas and the Union currently operate under a collective bargaining agreement (“CBA”) that took effect on September 8, 2011. That agreement became “amendable” on September 8, 2016, and the parties have been engaged in contract negotiations since earlier that year. All agree that those negotiations are governed by the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq., which applies to railroad and airline labor relations. The parties disagree, however, about almost everything else in this case, including the relevance of the Norris-LaGuardia Act (“NLGA”), 29 U.S.C. § 101 et seq.

         The RLA distinguishes between two types of disputes: “major disputes, ” which arise “out of efforts to form or change a collective bargaining agreement, ” and “minor disputes, ” which relate “to the proper meaning or application of an existing agreement.” Air Line Pilots Ass'n, Int'l v. Eastern Air Lines, 869 F.2d 1518, 1524 (D.C. Cir. 1989) (“Eastern Air Lines II”). This distinction has important ramifications. In the case of a “major dispute, ” the RLA requires the parties to engage in “a lengthy process of bargaining and mediation, ” and-most significantly for present purposes-it requires the parties “to maintain the status quo” while that lengthy process plays out. Consolidated Rail v. Railway Labor Execs.' Ass'n, 491 U.S. 299, 302 (1989). The “use of economic force” is not permitted during this period, and the federal district courts are empowered “to enjoin a violation of the status quo.” Id. at 303. In contrast, in the case of a “minor dispute, ” the RLA requires that the parties confer and, if necessary, submit to compulsory arbitration to resolve disputes involving the interpretation or application of their collective bargaining agreement. Id. That process moves considerably faster than the major dispute process and operates against a different background norm: unlike major disputes, the “general”-or categorical-“statutory obligation . . . to maintain the status quo” does not extend to minor disputes. Id. at 304.

         According to Atlas, it is in the midst of a major dispute with the Union regarding amendment of the CBA, and the Union has violated its statutory obligation to maintain the status quo during the ongoing contract negotiations. Atlas argues, in particular, that the Union has orchestrated a concerted slowdown of flight operations in an effort to generate economic leverage in the ongoing contract negotiations. It contends, for example, that the Union has encouraged Atlas's pilots to more frequently call in sick on short notice, to more frequently decline to fly because of fatigue, to refuse to volunteer for open flight assignments, and to delay flight departures by “blocking out on time.” Although Atlas argues that the RLA does not require proof of irreparable injury to sustain the issuance of a status quo injunction, it also maintains that it will suffer irreparable damage to its reputation and business if the slowdown is allowed to continue during the peak shipping season between Thanksgiving and the end of the year.

         The Union, in contrast, contends that the present dispute is governed by the existing CBA and thus constitutes a minor dispute, which does not demand preservation of the status quo. It also argues, however, that Atlas is wrong and that it has not encouraged Union members to engage in a slowdown. Rather, according to the Union, Atlas's woes are the result of the company's rapid growth and poor management, an increased focus on preventing unsafe flying conditions, and the Union's desire to ensure that Atlas abides by its existing contractual obligations. Because the Union, as a result, views the present dispute as no more than a garden-variety disagreement over what is allowed under the CBA, it asserts that the status quo requirement of the RLA is inapplicable and that, for this and other reasons, the NLGA strips the Court of jurisdiction to issue an injunction. Finally, the Union argues that the injunction that Atlas seeks would run afoul of the First Amendment.

         As explained below, the Court concludes that it has jurisdiction to consider Atlas's motion for a preliminary injunction. The Court further concludes, moreover, that Atlas has carried its burden of demonstrating that it is likely to succeed on the merits; that, to the extent required to do so, it has established that it will likely suffer irreparable injury in the absence of a preliminary injunction; that the Union will not suffer any countervailing injury if such an injunction is issued; and that the public interest tips in favor of issuing a preliminary injunction.

         The scope of the preliminary injunction, however, presents a more difficult question. All agree that airline pilots should not fly sick or fatigued, that not every flight can or should block out before its scheduled departure time, and that pilots cannot be forced to volunteer for open flights. It is difficult, if not impossible, moreover, for the Union, Atlas, or the Court to determine whether a particular pilot could have provided earlier notice before calling in sick, whether a particular pilot is too tired to fly safely, or whether a pilot legitimately wanted to spend more time with her family and thus decided not to volunteer for an open flight for reasons wholly unrelated to a slowdown. What must stop, however, are efforts by the Union to tie activity of this or any similar type to the collective bargaining process and to encourage pilots to change their behavior in light of the ongoing labor dispute.


         A. Railway Labor Act

         Congress has long sought to “minimiz[e] interruptions in the Nation's transportation services by strikes and labor disputes.” Int'l Ass'n of Machinists v. Central Airlines, 372 U.S. 682, 687 (1963). These efforts have resulted in “successive attempts to establish effective machinery to resolve disputes not only as to wages, hours, and working conditions, . . . but also as to the interpretation and application of existing contracts.” Id. Congress's first attempt was the Transportation Act of 1920, which soon drew the ire of both labor and management for being toothless and allowing the circumvention of rulings made by the administrative agency the act created. Id.

         In response, Congress enacted the Railway Labor Act of 1926, and amended it in 1934. Id. at 688. This framework was more successful. Id. Unlike agreements subject to the National Labor Relations Act, it made collective bargaining agreements in covered transportation sectors perpetual; absent change through the prescribed statutory mechanisms, a CBA subject to the RLA never expires. See Katherine Van Wezel Stone, Labor Relations on the Airlines: The Railway Labor Act in the Era of Deregulation, 42 Stan. L. Rev. 1485, 1495-96 (1990) [hereinafter Labor Relations on the Airlines]; see also 45 U.S.C. § 152, Seventh; Bhd. of Ry. & S.S. Clerks v. Florida E. Coast Ry., 384 U.S. 238, 243 (1966). The RLA, after the 1934 amendments, also created two methods for resolving conflicts between labor and management, and enlisted the courts in enforcing the statutory scheme. Air Lines Pilots Ass'n, Int'l v. Eastern Air Lines, 863 F.2d 891, 895 (D.C. Cir. 1988) (“Eastern Air Lines I”).

         The procedure employed to resolve a conflict depends on whether the dispute is “major” or “minor” in nature. For the former, Section 6 of the RLA creates a process “described by the Supreme Court as ‘almost interminable.'” Id. (quoting Detroit & Toledo Shore Line R.R. v. United Transp. Union, 396 U.S. 142, 148 (1969) (“Shore Line”)); 45 U.S.C. §§ 181, 182 (applying Section 6 to the airline industry). First, the parties must undertake a period of negotiation. See Eastern Air Lines I, 863 F.2d at 895. If that fails, the disagreement proceeds to the National Mediation Board (“NMB”), an administrative agency created by the RLA. Id. The NMB attempts mediation, or, if the parties consent, conducts voluntary arbitration. Id. In the event arbitration is declined and mediation fails, the dispute “then may be subject to presidential intervention to ensure adjustment.” Id. During this process of negotiation and mediation, Section 2, First and Section 6 of the RLA prevent either party from altering the “status quo, ” and “either party is entitled to an injunction prohibiting any changes in ‘rates of pay, rules, or working conditions.'” Id. (quoting 45 U.S.C. § 156). Only after these steps are exhausted and a mandatory cooling-off period has elapsed may the parties resort to economic self-help, such as a strike or lockout. Id. This dictate to maintain present conditions is commonly known as the “status quo obligation, ” and an injunction to enforce it as a “status quo injunction.”

         The procedures governing major disputes are “purposely long and drawn out, based on the hope that reason and practical considerations will provide in time an agreement that resolves the disputes.” Florida E. Coast Ry., 384 U.S. at 246. Importantly, because a CBA governed by the RLA never expires, these procedures apply any time a party seeks to negotiate a new CBA. The party seeking amendment must give notice under Section 6 of the RLA and then follow the procedures described above. See 45 U.S.C. § 156. In the airline industry, most CB As further include a temporal restriction on when Section 6 notice can first be given. See, e.g., Ass'n of Flight Attendants v. United Airlines, 71 F.3d 915, 917 (D.C. Cir. 1995); IBT/HERE Emp. Representatives' Council v. Gate Gourmet Div. Ams., 402 F.Supp.2d 289, 290 (D.D.C. 2005) (“Gate Gourmet”). The date on which the parties are allowed to formally initiate renegotiation of the CBA is referred to as the “amendable date.”

         By contrast, when labor and management cannot resolve a minor dispute through negotiation, the RLA mandates that the parties submit the conflict to a board for binding arbitration. See Eastern Air Lines I, 863 F.2d at 895; see also 45 U.S.C. § 184 (“The disputes between an employee or group of employees and a carrier or carriers by air growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions . . . may be referred by petition of the parties or by either party to an appropriate adjustment board.”). When Congress extended the RLA to airlines in 1936, it tasked companies and unions with establishing their own arbitration boards until such time as the NMB deemed the establishment of a permanent national board for airlines necessary. Central Airlines, 372 U.S. at 685-86; see also 45 U.S.C. § 184. The arbitration boards created by labor and management continue to be employed today, and are known as “system boards, ” Central Airlines, 372 U.S. at 690, or, in the case of Atlas and the Union, a “System Board of Adjustment, ” Dkt. 51-1 at 6. Most relevant to the present case, “the arbitration board's jurisdiction over minor disputes is exclusive; the courts do not have jurisdiction to issue status quo injunctions.” Eastern Air Lines I, 863 F.2d at 895-96. As a result, each party “is free to act under its interpretation of the collective bargaining agreement until the arbitrator rules otherwise.”[1] Eastern Air Lines II, 869 F.2d at 1520-21.

         B. Norris-LaGuardia Act

         This case also involves a “labor dispute” as defined by the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq. Congress enacted the NLGA to curtail “the growing tendency of federal courts to enjoin strikes by narrowly construing the Clayton Act's labor exemption from the Sherman Act's prohibition against conspiracies to restrain trade.” Jacksonville Bulk Terminals, Inc. v. Int'l Longshoremen's Ass'n, 457 U.S. 702, 708 (1982). Among other things, the NLGA states that in any “controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, ” 29 U.S.C. § 113, “[n]o court of the United States . . . shall have jurisdiction to issue any restraining order or temporary or permanent injunction . . . except in a strict conformity with the provisions of this chapter; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this chapter, ” 29 U.S.C. § 101. Section 4 of the NLGA enumerates the specific acts that courts lack jurisdiction to enjoin, which include “[c]easing or refusing to perform any work.” 29 U.S.C.§ 104.

         The NLGA also contains a number of additional jurisdictional restraints on the judiciary's authority to issue labor injunctions. Most relevant to the present case are those contained in Section 8, which states:

No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.

29 U.S.C. § 108. Section 8 accordingly creates two obligations. First, the party seeking a labor injunction must “comply with any obligation imposed by law.” Id. Second, unless the moving party has “ma[d]e every reasonable effort to settle the dispute, he is forbidden relief.” Bhd. of R.R. Trainmen, Enter. Lodge, No. 27 v. Toledo, P. & W.R. Co., 321 U.S. 50, 56-57 (1944). “The latter condition is broader than the former” and requires that the moving party “go beyond [his legal obligations] and make all reasonable effort” to settle the dispute. Id. at 57.

         Although sweeping, this obligation has limits because the NLGA “cannot be read alone in matters dealing with railway labor disputes.” Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R., 353 U.S. 30, 40 (1957). Instead, “[t]here must be an accommodation of [the NLGA] and the Railway Labor Act so that the obvious purpose in the enactment of each is preserved.” Id. That accommodation recognizes that the RLA provides “special processes intended to [achieve] compromise” between companies and unions in railway and airline cases, and that the NLGA also applies to the extent it is not inconsistent with the RLA. Id. at 41.


         A. The Parties

         Plaintiffs Atlas Air, Inc. and Polar Air Worldwide Cargo, Inc. are global airlines offering cargo and passenger service. Dkt. 48 at 2. Both are owned by Atlas Air Worldwide Holdings, Inc., a holding company based in Purchase, New York. Id. at 2-3. Atlas conducts various types of operations. First, it conducts international, long-haul cargo and passenger flights using primarily B-747s that are typically scheduled on an ad hoc, point-to-point basis. Dkt. 47 at 2-3. These flights took Atlas's pilots and planes to more than 400 airports in 100 different countries in the past year. Id. at 2. In addition to transporting time-sensitive products and equipment for customers like Qantas, Cathay Pacific, and Nippon Cargo Airlines, Atlas is the largest provider of commercial, wide-body cargo airlift services for the United States Military Air Mobility Command. Id. at 3. Pilots serving these routes often fly multiple legs overseas rather than returning to a base in the United States between operations. Id. at 4. Because of the lack of centralized bases, staffing these flights requires coordinating crew schedules across multiple flights and continents. Dkt. 48 at 5. Traditionally, these operations constituted the lion's share of Atlas's business. Dkt. 47 at 3.

         In recent years, however, the growth of online shopping has dramatically increased domestic demand for air freight. Id. Atlas has responded by increasing its fleet of B-767s, which it uses to operate shorter-haul, domestic cargo flights for customers like Amazon and DHL. Id. Unlike Atlas's long-haul operations, these flights are typically scheduled in advance or conducted on a regular schedule, adding predictability to Atlas's operations. Id. at 4. The parties agree that these developments have created two separate networks-one international and highly decentralized, the other domestic and more hub-oriented-that operate under a single corporate and union structure using the same pilots. Dkt. 47 at 3; Dkt. 48 at 4-5. In response to the increased demand for domestic cargo operations, Atlas has hired large numbers of new pilots in recent years. Dkt. 48 at 6. From September 2015 to September 2017, for example, the number of pilots employed by Atlas with less than three years of experience increased from 36% of all pilots to 51% of all pilots. Dkt. 57-12 at 2.

         Defendants International Brotherhood of Teamsters and its Airline Division represent the Atlas pilots. Dkt. 31-2 at 3. The Teamsters were certified as the exclusive bargaining representative of the pilots under the RLA on December 22, 2008. Id. at 4. A local affiliate of the Teamsters-Local Union No. 1224, the third Defendant in this case-has responsibility for day-to-day representation of Atlas pilots. Id. at 3-4. Local 1224, in turn, manages the representation of Atlas pilots through a five-person, elected board called the Atlas Pilots' Executive Committee. Id.

         B. The Existing Collective Bargaining Agreement

         After several years of negotiations, the current collective bargaining agreement between Atlas and the Union took effect on September 8, 2011. Dkt. 47 at 6. Although this opinion refers to the Plaintiffs collectively as “Atlas, ” as previously noted, they are in fact two separate airlines (Atlas Air and Polar) owned by a holding company (Atlas Air Worldwide Holdings). In early 2009, the Union, Atlas Air, and Polar agreed to negotiate a merged contract that would cover both Atlas Air and Polar pilots, despite the fact that the two companies are separate legal entities. Dkt. 31-2 at 4-5. That agreement to negotiate provided that, in the event a contract could not be reached, the parties would submit to binding arbitration. Id. at 5. The negotiations over the CBA were fraught, and, by late 2010, the parties concluded they could not reach an agreement and thus submitted the matter to arbitration. Id. The existing CBA was then fashioned by the arbitration board. Id.

         That CBA contains several provisions arguably bearing on the present dispute. First, it prohibited both parties from seeking to amend or otherwise to change the agreement for five years from its effective date. Dkt. 31-1 at 282. Under this provision, the agreement became amendable on September 8, 2016, although either party could serve notice on the other of intent to seek a change in the agreement up to 270 days beforehand. Id. Consistent with the RLA, if no party served such notice, the CBA was to remain in effect. Id.

         Second, the CBA restricts the Union's ability to employ economic self-help until authorized to do so under the RLA. Section 26.X states, in full:

The Union, through its Atlas Air, Inc. Executive Council, agrees that during the term of the Agreement there will not be any complete or partial strikes, picketing, slowdowns, unfair labor practice strikes, refusals to cross picket lines, sympathy strikes, work stoppages, secondary boycotts, withholding of services in whole or in part, concerted refusal to work normal overtime, or other cessation of work of disturbances economic or otherwise unless and until the parties' rights to self-help mature under the Railway Labor Act, provided, however, that nothing herein shall be construed to limit the Union's right to engage in otherwise lawful informational picketing. This paragraph shall not alter or limit the Company's right, if any, to obtain a court order enjoining such conduct by the Union and[/]or the Crewmembers both collectively and individually. Nothing in this paragraph shall be construed, however, to limit the rights of the Union or the Atlas Crewmembers to refuse to cross lawful strike picket lines established by or on behalf of pilots represented by any union lawfully certified or recognized pursuant to the Railway Labor Act.

Id. at 204.

         Third, the CBA provides a mechanism for addressing asserted violations by the Union of Section 26.X. Section 20.D provides:

In the case of a grievance initiated by the Company (a “Company grievance”), the Company shall submit the Grievance to the Union in writing or by electronic mail. The Company grievance shall conform with the timeliness and formal requirements set forth in subsection 20.B.1.a, above. The Company may file a grievance only over the interpretation or application of the Agreement. Within thirty (30) days of submission of a Company grievance, a Union official designated by the Union will meet with the Company's Vice President of Flight Operations and the Company's senior official responsible for Crewmember labor relations, or their designees, to discuss the matter. If the grievance cannot be resolved as a result of this meeting then within thirty (30) days following such meeting, the grievance may be appealed by the Company to the Board by filing a notice of appeal to the Board on or before the thirty-first (31) day following the meeting. Such appeals shall conform to the requirements set forth in 20.B.3.a., above, except the notice of appeal shall be filed with a Union official designated by the Union.

Id. at 126-27.

         Finally, the Board to which Section 20.D refers is the System Board of Adjustment established in Section 21 of the CBA. Id. at 130. That section describes in detail the process and timeline for proceeding with arbitration and limits the jurisdiction of the Board. With respect to the Board's jurisdiction, the CBA states that it “shall not extend to any proposed changes in rates of pay, rules or working conditions” and that “[t]he Board shall not have any jurisdiction to add to, subtract from, modify or amend any of the terms of this Agreement.” Id. The CBA envisions a process for resolving grievances that takes several months. Once the parties conclude they are unable to resolve the grievance among themselves, they may appeal to the Board. Id. at 130-31. At that point, ten days must elapse before the selection of an arbitrator may begin. Id. at 132. The arbitrator sits as the Board's third member, and is chosen after the Union and Atlas each select one Board member. Id. Upon selection, the arbitrator must propose dates for a hearing, and those dates must be within sixty days. Id. After the hearing, the Board must issue its decision within sixty days. Id. at 133.

         C. Negotiations to Amend the Collective Bargaining Agreement

         In late 2014, Local 1224 held elections for its Atlas Pilots' Executive Committee. Dkt. 48 at 8-9. Captain Robert Kirchner, an employee of Atlas or its predecessor companies since January 2000, ran for chairman. Id. at 9; Dkt. 31-2 at 2. At some point during the fall of 2014, he had dinner with Captain Jeffrey Carlson, the Senior Vice President of Flight Operations at Atlas since October 2008. Dkt. 48 at 8; Dkt. 5-3 at 1. At the dinner, Captain Kirchner indicated that he was running on a platform of what he termed “strict contract compliance.” Dkt. 31-2 at 15. Captain Kirchner alleges that Captain Carlson agreed that such compliance was the proper way forward for the parties, id., and Captain Carlson testified that “contract compliance was the message he sent me. And he asked me how the company felt about that. And like I reflected before, we absolutely support honoring the contract.” Hearing Tr. Day 2 (57:15-17).

         Captain Kirchner was elected chairman of the Atlas Pilots' Executive Committee in November 2014. Dkt. 48 at 9. Before taking office, he prepared a bullet point proposal for Atlas's upper management to “mitigate the loss of experienced pilots” in light of what he regarded to be a “large gap in compensation and retirement” benefits provided under the Atlas contract and “the trends in the industry.” Hearing Tr. Day 3 (54:10-55:6); Dkt. 58-1 at 2. According to Captain Kirchner, although Atlas's management “took” the proposal “as a contract opener, ” he explained that he was not seeking to open negotiations prior to the amendable date, which was still over a year and a half away. Hearing Tr. Day 3 (55:10-56:4). In any event, all agree that Atlas was not required to engage in contract negotiations at the time and that it declined to do so. Hearing Tr. Day 2 (60:15-21).

         On January 1, 2015, Captain Kirchner took office as chairman of the Atlas Pilots' Executive Committee. Dkt. 31-2 at 4. On January 19, 2016, the holding company that owns Atlas and Polar announced its agreement to acquire two additional airlines, Southern and Florida West. Id. at 6. The holding company soon announced its intention to merge Atlas and Southern, while keeping Florida West and Polar as separate entities. Id. at 7. The holding company has since “wound down” Florida West. Dkt. 5-3 at 6. The crewmembers of Southern are also represented by the Union and are parties to a collective bargaining agreement that became amendable on November 6, 2016. Id.

         On February 16, 2016, the Union served written notice under Section 6 of the RLA on Atlas that it would seek to modify the collective bargaining agreement that had been imposed by the arbitration board. Dkt. 31-2 at 6. Although the amendable date was still months away, the notice was not premature under the terms of the existing CBA, which allowed a party to serve notice of an intent to seek changes as early as 270 days before the amendable date. Id. Around the same time, the Union also sent a Section 6 notice to Southern. Dkt. 5-3 at 6. According to the Union, at a March 15, 2016 negotiating session, Atlas announced that it would no longer engage in standalone negotiations with the Union to amend the Atlas CBA; instead, it would negotiate only a “merged” collective bargaining agreement that would cover both Atlas and Southern pilots. Dkt. 31-2 at 7. Atlas took the position that such a merged agreement was required by the existing CBA, while the Union argued that the holding company, rather than Atlas, had acquired Southern. Id. To the Union, that meant that only the holding company could seek a merged agreement. Id. Because the holding company had refused to be made a party to the CBA during the negotiations that led to the arbitration that created the existing CBA, the Union argued that it could not then invoke that agreement. Id. The Union instead offered to extend the existing CBA while Southern and Atlas formally merged, to integrate the Southern pilots into the existing CBA, and to sign a separate agreement that would address concerns the Union had regarding the application of the present CBA to the companies' growing domestic cargo operation. Id. at 8. Atlas and Southern refused the Union's offer. Dkt. 5-3 at 7; Dkt 31-2 at 10.

         On April 13, 2016, the Union applied to the NMB for mediation. Dkt. 31-2 at 10. The next day, Atlas filed a grievance under the existing CBA alleging that the Union had failed to follow procedures for negotiating a post-merger CBA as required by the contract. Id. The Union declined to follow the arbitration procedure set out by the CBA, alleging that that the contract provisions could not properly be invoked given the structure of the acquisition of Southern and the fact that Atlas, rather than the holding company, was a party to the existing CBA. Id.; Hearing Tr. Day 2 (133:18-134:21). NMB mediation began but was never completed. Dkt. 31-2 at 10-11. After nearly a year of impasse, Atlas Air and Southern sued the Union in the Southern District of New York to compel arbitration under each company's existing CBA, which set out a mechanism for creating a merged contract. Id. at 11. The Union contends that Atlas's goal is to force the creation a new CBA through arbitration rather than the major dispute process set forth in the RLA. Id. The latter process would require NMB mediation, and, if such mediation failed, would eventually permit the parties to use economic self-help. Id. at 11-12.

         D. The Alleged Slowdown

         The Union actions that Atlas alleges constitute an illegal slowdown in violation of the RLA's status quo requirement will be discussed in more detail below. A brief introduction to the Union communications and pilot actions at issue, however, is helpful to set the stage.

         After taking office in January 2015, Captain Kirchner launched an effort to revamp the Union's program for communicating with its member pilots. He made it a top priority within the Atlas Pilots' Executive Committee “to better educate the Atlas pilots.” Id. at 19. Among other steps, he instituted periodic Atlas Teamsters Action Messages (“ATAMs”), which take the style of a radio talk show or podcast, and “Atlas Pilots Crew Calls, ” which provide an unscripted forum for rank-and-file pilots to call in to ask Captain Kirchner and others questions. Id. at 19- 21.

         A major theme of the ATAMs and Crew Calls has been to encourage pilots to “Stop Helping Out Purchase, ” or “SHOP”-Purchase, New York, being the headquarters of Atlas. Id. at 20. Captain Kirchner and Captain Mike Griffith, the Executive Committee Communications Chairman, have urged pilots to “honor the CBA every day and on every flight” and to “hold management accountable.” Dkt. 5-3 at 11 (quoting June 23, 2017 Chairman's Update & August 31, 2017 ATAM). When a rank and file member of the Union noted during a February 2016 Crew Call, for example, that a new contract that treats pilots “fairly” would provide an incentive for them “to go above and beyond to get the job done, ” Captain Kirchner responded, “that's a great point, ” and “[r]emember, everybody . . . [w]hen you're there doing your job, you're also at the negotiating table. And every time they out-negotiate you by getting you to violate the CBA and [by] getting you to do their job for them, they win at the negotiating table.” Dkt. 28-3 at 11- 12. As the Union's communication's director put it during an ATAM, “the leverage” the Union “needs to go up against” Atlas management will come from members acting together-in “solidarity”-to strictly comply with the CBA. Dkt. 5-53 at 20-21. Or, in the words of yet another ATAM, “[f]ollow the CBA[, a]nd SHOP every chance you get when you're at work, because[] it's working.” Dkt. 5-18 at 7 (22:22-23:2).

         One specific aspect of the Union's SHOP campaign has urged pilots to “block out on time, ” or “BOOT.” “Blocking out” refers to the process of releasing the aircraft's brake and pushing back to taxi. Dkt. 5-3 at 17. According to Atlas, the estimated departure time for a flight represents the latest time the “flight is expected to block out.” Id. But, if “an aircraft is loaded and otherwise ready to depart, ” the pilot may-and hopefully will-block out before the estimated departure time in order to improve airline efficiency and to provide a “buffer that helps to ensure” timeliness. Id. at 17-18. Although a pilot needs to obtain authorization from Atlas to block out more than fifteen minutes before the estimated departure time, that is not required for the final fifteen-minute window. Dkt. 31-2 at 47. Under the BOOT campaign, however, the Union has encouraged Atlas pilots to exercise their “right” to wait until the last possible minute to block out. As explained by the Union in an April 12, 2016 CBA Chat: “BOOT stands for Block Out on Time. And we are not doing this. We are going early, left right, and center. . . . So now, we're asking everybody-your [Executive Committee] is asking you to not block out early, ever, period. Period, ever.” Dkt. 5-17 at 6 (18:19-20:21).

         According to Atlas, the Union's SHOP campaign and other Union-led efforts have placed significant financial pressure on the company and have upset the status quo required by the RLA. Using statistical analyses to support many of its contentions, Atlas points to the following changes in pilot behavior, which it attributes to the Union's efforts to exert pressure on the company in the ongoing contract negotiations:

         First, Atlas argues that pilots are calling in sick on short notice at a higher rate than they did prior to the Section 6 notice. Dkt. 5-3 at 7. According to the company, the Union has instigated this change in pilot behavior in order to exert influence on the ongoing CBA negotiations.

         Second, Atlas alleges that pilots are now calling in fatigued more often. Id. at 11-15. Indeed, according to the company, since February 2016, when the Union notified Atlas of its intent to negotiate, the average rate of fatigue calls has nearly tripled. Dkt. 5-103 at 28.

         Third, Atlas contends that pilots are now less likely to volunteer for what is called “open time flying.” Dkt. 5-3 at 15-16. Open time flying is the practice of picking up flights that are scheduled without an assigned crew, analogous in many ways to overtime and common in the international, long-haul cargo scheduling scheme long utilized by Atlas. Id. at 15-16. The CBA does not require pilots to volunteer for open time, but Atlas says it has had more and more trouble filling the spots. Id. at 16. In support of this contention, the company points to statistical evidence that the proportion of unfilled open time trips each month has-at least on average- increased dramatically since February 2016. Dkt. 5-103 at 32.

         Fourth, Atlas argues that the Union's BOOT campaign has resulted in far fewer departures at the time aircraft are actually loaded and ready to push back, with pilots instead waiting at the gate until the scheduled departure time. Dkt. 5-3 at 16-20. Atlas argues that leaving closer to the scheduled departure time has reduced its margin for error with respect to later, unexpected delays, especially when done in concert with slower taxiing (something Atlas also alleges it has observed). Id. at 19-20. In support of its contention that the Union is to blame, Atlas points to statistical evidence that the percentage of flights leaving before the estimated departure time fell dramatically after February 2016, while the number of flights departing at exactly the estimated departure time rose at a corresponding rate. Dkt. 5-103 at 38.

         Fifth, the company asserts that pilots have increased the number of maintenance write-ups they are making, including demanding that minor issues be corrected prior to departure rather than flying with open maintenance issues that do not affect the safety of the aircraft. Dkt. 5-3 at 20-21.

         Finally, Atlas contends that pilots have begun refusing to fly because of noncompliance with the CBA's crew meal provisions, whereas they previously accepted vouchers or other compensation in exchange for waiving compliance. Id. at 21-22.

         To the extent the CBA arguably permits some of these behaviors, Atlas takes issue with changes in pilot behavior over the life of the CBA. See id.

         The Union, for its part, disputes virtually all of these allegations. Its more specific rejoinders are discussed below, but its counterarguments take three general tacks. First, it disputes the statistical analysis offered by Atlas, and it offers its own expert who reaches different conclusions. See Dkt. 31-3. Second, it argues that any changes revealed by the data are the result of other causes unrelated to the ongoing CBA negotiations. It argues, for example, that changing regulations, safety awareness, and crew compositions have led to the increase in fatigue calls, and it offers declarations from pilots contesting Atlas's account of their decisions to call in sick or fatigued. Id.; see also Dkt. 31-2. Similarly, it contends the BOOT campaign is intended to prevent pilots from violating various rules, including Federal Aviation Administration (“FAA”) “regulatory flight duty time limits and rest requirements.” Dkt. 31-2 at 28. Third, it suggests that any changes that can actually be traced to the Union's communications are affirmatively permitted by the CBA, and thus cannot constitute a violation of the status quo. That is, the Union is merely requiring that Atlas abide by the existing contract; the SHOP campaign has not sought to shift the playing field, but only to ensure that future negotiations take as their starting point the playing field that was agreed to in the 2011 CBA.

         E. Resumption of Negotiations and the Present Suit

         Despite disputes along the way, the parties concluded an agreement in June 2017 on a negotiating protocol called the “Negotiation Process to Facilitate Completion of Collective Bargaining Negotiations, ” which led to a resumption of formal negotiations on July 6, 2017. Dkt. 5-3 at 6-7. The lawsuit in the Southern District of New York seeking to compel the Union to accept binding arbitration as to the contents of the new CBA remains pending, however.

         On September 25, 2017, Atlas filed the present suit, Dkt. 1, and simultaneously moved for a preliminary injunction, Dkt. 5. The Court held a scheduling conference on September 29, 2017, and set an expedited schedule for discovery and briefing. Minute Entry (Sept. 29, 2017). The Court held an evidentiary hearing on October 31, November 1, and November 2, 2017. Minute Entry (Oct. 31, 2017); Minute Entry (Nov. 1, 2017); Minute Entry (Nov. 2, 2017). The parties agreed to offer their direct testimony in declarations, which the witnesses summarized and affirmed on the stand. See Dkt. 39 (Rough Tr. at 2:12-4:20). The opposing party was then allowed to cross-examine the witnesses regarding both their live testimony and their declarations. Where the opposing party waived cross-examination, the witnesses were permitted to rest on the written declarations alone.

         Following the evidentiary hearing, the parties submitted post-hearing briefs, Dkt. 49; Dkt. 50, and proposed findings of fact, Dkt. 47; Dkt. 48. The Union concurrently filed a motion to dismiss for lack of subject matter jurisdiction. Dkt. 51. Atlas responded on November 14, 2017, Dkt. 52, and the Union filed its reply on November 17, 2017, Dkt. 56. All told, although the case remains at a preliminary stage, the record occupies over 5, 000 pages.

         III. ANALYSIS

         A. Subject Matter Jurisdiction

         The Court begins, as it must, with the question whether it has subject matter jurisdiction to grant Atlas the relief that it seeks-that is, an injunction barring the Union from encouraging its members to engage in a slowdown designed to influence the ongoing contract negotiations. The answer to that question turns on the meaning and application of both the NLGA and the RLA. As noted above, the NLGA was enacted to curtail the jurisdiction of federal courts to issue injunctions against labor unions. See Int'l Ass'n of Machinists v. Street, 367 U.S. 741, 772 (1961). Section 1 of the Act declares that “[n]o court of the United States . . . shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in strict conformity with the provisions of” the NLGA. 29 U.S.C. § 101. Section 4, then, “enumerates specific acts that shall not be subject to any restraining order or injunction, ” including “‘[c]easing or refusing to perform any work or to remain in any relation of employment'” and “‘[g]iving publicity to the existence of, or the facts involved in, any labor dispute . . . by any method not involving fraud or violence.'” Burlington N. R.R. v. Bhd. of Maint. of Way Emps., 481 U.S. 429, 437 (1987) (quoting 29 U.S.C. §§ 104(a), 104(e)).

         At the same time, however, the RLA authorizes federal courts to enjoin unions and employers from engaging in practices that violate the RLA's status quo obligation. See Consolidated Rail, 491 U.S. at 302-03. As the Supreme Court has explained, “[t]he obligation of both parties during a period [for which] the[] status quo provision[] is properly invoked is to preserve and [to] maintain unchanged those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.” Shore Line, 396 U.S. at 153. This obligation lies at the “heart” of the RLA, Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377- 78 (1969), and it ...

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