An injunction did not restrict the rights of individual pilots whose actions were independent of the union or impermissibly prohibit lawful self-help activities that would not run afoul of the RLA.
Affirming a preliminary injunction enjoining a union’s efforts to gain leverage over two commercial air carriers during negotiations over an amended collective bargaining agreement—including by encouraging pilots to “block out on time,” call in sick on short notice, and refuse to volunteer for overtime shifts—the D.C. Circuit found that Congress permits courts to issue such injunctions in rare cases and this was one of them. Not only did the district court have jurisdiction to enter a status quo injunction in this major dispute, it did not abuse its discretion in enjoining the union’s conduct (Atlas Air, Inc. v. International Brotherhood of Teamsters, July 5, 2019, Griffith, T.).
In 2011, the union and the air carriers entered into a CBA that prohibited the union from engaging in a work stoppage or slowdown and permitted the carriers to seek an injunction if the union did so. When the carriers’ business model and staffing demands changed significantly, the union tried to work with the carriers to alleviate the issues caused by this change rather than holding the employer accountable to the precise terms of the CBA.
SHOP and BOOT. In 2014, however, the pilots elected a new chairman of the executive committee, the body through which the union managed day-to-day representation of the pilots. A year after he took office, the union notified the carriers that it would seek to amend the existing CBA. Over the coming months, the union encouraged the pilots to SHOP, which the chairman explained referred to the idea that pilots should not “help out” the carriers by permitting them to get away with contract violations but should instead insist on “strict contract compliance.” It also encouraged pilots to BOOT, or “block out on time,” rather than push back from the gate early, as encouraged by the carriers.
Injunction. Viewing SHOT and BOOT as part of the union’s attempt to orchestrate a work slowdown to try to ratchet up pressure during the contract negotiations, the carriers sought an injunction, which the district court granted.
Jurisdiction. Turning first to whether the district court had jurisdiction to issue the injunction, the appeals court noted that pursuant to the RLA, courts have jurisdiction to issue injunctions to preserve the status quo in major disputes in the transportation industry. In keeping with the goals of the Norris-LaGuardia Act, however, they should only do so if “that remedy alone can effectively guard the plaintiff’s right[s].” While the union argued this was a minor dispute, rather than a major dispute under the RLA, the appeals court disagreed, noting that a dispute over the terms of a new or amended CBA in “unequivocally major,” as is a dispute over conduct that “grows out of” the effort to negotiate that agreement. And here, said the court, this was a dispute about whether the union could engage in a concerted campaign to alter the status quo (by SHOP-ing, BOOT-ing and the like) in the midst of what was unmistakably a major dispute—the negotiation of an amended CBA in order to apply economic pressure on the employer in those negotiations.
Further, the carriers demonstrated that they made every reasonable effort to settle the dispute. The parties began negotiating in 2016; mediated, arbitrated, and litigated a dispute related to those negotiations; worked for eight months to create a framework to govern the negotiation process; then spent about two and a half months in negotiations before the carriers sought the injunction.
Likelihood of success on the merits. As to whether the carriers demonstrated a likelihood of success on the merits, the court noted that they had to show the status quo changed during a major dispute and provide clear proof that the union participated in, authorized, or encouraged that change. To determine whether the union encouraged a change in the status quo, the court found it important to know when the dispute began. While the union argued that it started with the January 2015 election of the new chairman, the court, agreeing with the carriers, found the relevant date was February 2016, when the union notified them of its intent to negotiate an amended CBA, intensified its messaging campaign, and announced SHOP and BOOT.
Observing that a union may not encourage strict compliance with the terms of an existing CBA in an effort to gain leverage in negotiations for a new or amended contract, the court found that was exactly what happened here with respect to blocking out, short-notice sick calls, and overtime.
Blocking out on time. The carriers presented statistically significant evidence showing that pilots were more likely to block out, or push back, from the gate precisely on time after the union notified them of its intent to negotiate an amended CBA. Departing exactly on time rather than when the aircraft was “locked and loaded,” they argued, removed any potential buffer and meant that a flight was more likely to arrive late if it encountered issues such as headwinds or congestion. And while the union argued that blocking out on time was not illegal, the issue, said the court, was whether pilots altered their prior practice of blocking out before the scheduled time, when possible and the answer to that question, the district court fairly concluded, was yes.
Further, there was evidence the union exhorted pilots to stop departing early, noting the chairman told pilots that the carriers believe if they delay “a new CBA long enough, you will . . . abandon our quest for an industry-leading CBA. This cannot be allowed to be the case! YOU must SHOP, BOOT and push back on their tactics harder than ever as we are starting to get the movement we desire.” Given this evidence, the lower court did not improperly conclude that the carriers were likely to succeed in demonstrating that by encouraging pilots to “block out on time,” the union altered the status quo.
Short notice sick calls. The carriers also provided statistical evidence that after February 16, short-notice sick calls increased from 13.8 percent to 23.8 percent. While there was nothing inherently suspect about a union encouraging its members not to work sick, what is suspect, said the court, is a union reminding its members not to work sick while acknowledging the legal consequences of calling for a sick out and continually emphasizing that strict contract compliance will provide negotiation leverage.
“Combined, this kind of evidence can fairly be interpreted as encouraging slowdown activities.” And the carriers provided several examples to support their claim the union’s conduct went beyond merely reminding pilots not to work sick. While standing alone, the claim that the union encouraged pilots not to fly sick “might not carry the day,” the lower court found specific examples and “more explicit language” were not necessary because when viewed in context, “it is evident that at least some of the union’s exhortations were tied to the ongoing labor dispute” and that was not reversible error.
Open time. Finally, turning to “open,” or overtime, the district court found the carriers presented sufficient statistical evidence to support the claim that since the union served the section 6 notice, it became more difficult to fill open time. They also presented sufficient evidence demonstrating that the union encouraged pilots to act in that manner. As an example, said the court, when a pilot asked during a crew call whether “picking up open time flying harm[s] . . . [the Union’s] ability to negotiate,” the chairman explained that “[e]verything you do when you cut a corner on the CBA, when you go the extra mile for [the carriers], that just solidifies and helps them in what they are trying to do to us . . . and it prolongs the negotiation process.” In light of the anecdotal and statistical evidence, the district court did not err in enjoining the union from encouraging pilots to decline open time.
Not overbroad. Finally, the court found the injunction was not overbroad. While the union argued that the district court erroneously enjoined lawful, protected individual and group activity, “this case is about whether the Union violated the RLA by encouraging pilots to jointly engage in actions designed to obtain leverage in the negotiations for an amended CBA,” said the court, noting that the “injunction does not restrict the rights of individual pilots whose actions are independent of the Union, nor does it impermissibly prohibit lawful self-help activities that would not run afoul of the RLA.” Rather, it applies only to “persons acting in concert with” the union and its officers in the efforts to obtain leverage in negotiations for an amended CBA.
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