United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
matter is currently before the Court on Plaintiffs'
motion for a preliminary injunction, Dkt. 5, and
Defendants' motion to dismiss, Dkt. 51.
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
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.
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.
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.
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.
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.
Railway Labor Act
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.
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”).
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.”
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.”
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.” Eastern Air
Lines II, 869 F.2d at 1520-21.
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.
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
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.
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.
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.
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.
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.
The Existing Collective Bargaining Agreement
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.
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.
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.
the CBA provides a mechanism for addressing asserted
violations by the Union of Section 26.X. Section 20.D
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.
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.
Negotiations to Amend the Collective Bargaining
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
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
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.
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.
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
The Alleged Slowdown
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.
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.
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).
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).
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
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.
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.
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.
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.
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.
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.
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.
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.
Resumption of Negotiations and the Present Suit
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.
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.
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.
Subject Matter Jurisdiction
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)).
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 ...