United Air Lines, Inc. v. International Ass'n of MacHinist & Aerospace Workers , 243 F.3d 349 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4220
United Air Lines, Incorporated,
Plaintiff-Appellant,
v.
International Association of Machinist and
Aerospace Workers, AFL-CIO, District Lodge 141-M,
IAMAW, Air Transport Employees Local Lodge 1781,
IAMAW, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 00 C 7265--William J. Hibbler, Judge.
Argued February 22, 2001--Decided March 14,
2001
Before Bauer, Coffey, and Manion, Circuit
Judges.
Bauer, Circuit Judge. United Airlines
("United") appeals from the denial of a
preliminary injunction which it had
sought against the International
Association of Machinist and Aerospace
Workers, AFL-CIO ("IAM") in order to com
pel IAM to exert every reasonable effort
to discourage its member mechanics from
engaging in a concerted work slowdown at
United. For the reasons set forth below,
we reverse the decision of the district
court.
BACKGROUND
United is a "carrier" as defined by sec.
201 of the Railway Labor Act ("RLA"), 45
U.S.C. sec. 181. IAM is the certified
exclusive bargaining representative of
six different crafts or classes of United
employees, including the mechanics craft
or class. In 1994, IAM and United
negotiated a collective bargaining
agreement ("CBA"), which by its terms
became amendable on July 12, 2000 The
parties entered into negotiations in
December of 1999 but were unable to reach
an agreement by July 12, 2000.
In September of 2000, United and IAM
jointly applied to the National Mediation
Board ("NMB") for mediation pursuant to
sec. 5 of the RLA, 45 U.S.C. sec. 155.
The RLA requires both parties to maintain
the status quo during mediation (that is,
it forbids either party from unilaterally
altering the working conditions in place,
broadly defined). Negotiations between
the parties broke off on October 31, and
resumed on December 7. The talks continue
as of the time of this decision.
Beginning shortly after July of 2000,
and continuing in varying degrees up to
the present time, United has experienced
various maintenance-related anomalies
which it interprets as a deliberate "slow
down" campaign on the part of its
mechanics. Specifically, United has
experienced a greater than normal number
of maintenance write-ups/1 by mechanics,
longer than usual "cycle times"/2 at
its Indianapolis Maintenance Center, a
sharp increase in the number of aircraft
held out of service for unscheduled
maintenance,/3 and an increase in
maintenance-related flight delays and
cancellations. By November 10, 2000
United suspected that IAM was directing
or encouraging the work slowdown, and on
November 10, 2000 United Senior Vice
President Andrew Studdert wrote a letter
to IAM District Lodge 141-M General
Chairman Scotty Ford calling on the union
to halt what he called the "concerted job
action by employees represented by
District Lodge 141-M." In the letter,
Studdert complained that IAM employees
were submitting excessive mechanical
write-ups making erroneous claims of
missing equipment, and failing to work
scheduled overtime. Studdert
characterized the mechanics’ conduct as
"clearly concerted and appear[ing] to be
in direct response to misleading
communications from the IAM about the
Company’s position at the bargaining
table, inaccurate descriptions of other
management decisions, and clear ’work to
rule’ campaign directives from District
Lodge 141-M." Studdert then reminded Ford
of IAM’s duties under the RLA to maintain
the status quo during ongoing
negotiations, and noted that IAM’s
failure to observe this duty was illegal
and enjoinable in federal court. Finally,
Studdert requested IAM and its members to
return to the status quo immediately. He
demanded an immediate end to IAM
communications containing misleading
information about United’s bargaining
positions, as well as "an immediate end
to work to rule directives, and any other
steps necessary to secure an immediate
end to this disruptive behavior."
On November 14, 2000, Scotty Ford sent
Studdert a letter in response. In the
letter, Ford stated that he "greatly
resent[ed] what can only be seen as an
attempt to threaten and intimidate this
Union and its members during these
negotiations." Ford denied that IAM had
encouraged any employee to violate either
the CBA or the RLA, and he requested
Studdert to present specific evidence
that either the District or any of its
officers were doing so. Ford asserted
that recent communications from the IAM
District 141-M Negotiating Committee had
"repeatedly advised the [union]
membership not to take part in any job
action and has gone so far as to
recommend that members work overtime."
Ford contended that recent actions by
United management (including the
"discharge of 108 mechanics in Los
Angeles") were the "true reason behind
any so-called ’disruptive behavior’" on
the part of IAM mechanics, and he accused
United of trying to "censor" IAM
communications.
One week later, United moved for a
temporary restraining order ("TRO") and a
preliminary injunction. United asked the
court to prohibit United’s mechanics from
engaging in a slowdown campaign and to
order the IAM, its district and local
lodges, and their officers to take
specific steps to stop ongoing slowdown
activity. In support of its motion,
United produced three categories of
evidence: (1) statistical evidence of a
slowdown campaign, along with testimony
by United managers describing their
personal observation of slowdown
activities by mechanics; (2) letters and
bulletins issued by IAM District Lodge
141-M and IAM’s local lodges during
October and November 2000 which United
claimed constituted a deliberate slowdown
campaign directed by IAM; and (3) letters
and flyers posted by individual mechanics
during the same period that encouraged
work slowdowns and other job actions.
These categories of evidence are
addressed in turn.
(1) Statistical evidence of a
slowdown/managerial testimony
United’s statistical evidence revealed
the following: (1) a jump in the number
of maintenance write-ups from historical
levels of 1050-1100 maintenance items per
day to 1350 per day in July of 2000, and
climbing to almost 1500 per day during
the first two weeks of November (after
the contract talks broke off); (2) an
increase in cycle times for scheduled
maintenance checks at United’s
Indianapolis Maintenance Center beginning
in July and rising to almost double their
historical averages during September
through November 2000; (3) an increase in
the number of aircraft held out of
service for unscheduled maintenance at
any given point from the historical
average of roughly 12 to nearly 30 in
July, followed by a slight decrease in
September through November, and a
subsequent increase to 35 a day during
the first two weeks of November; (4) an
increase in the percentage of United
flights that are delayed due to
mechanical problems from the historical
average of roughly four percent to over
seven percent in July through August
2000, then dipping to six percent in
September and October, and climbing again
to approximately eight percent during the
first two weeks of November; (3) A
doubling of the percentage of flight’s
cancelled due to mechanical problems from
the historical average of roughly one
percent to over 2.5 percent in July
through August 2000, followed by a
decline to approximately 1.5 percent in
September and October, and another
increase to two percent during the first
two weeks of November./4
In addition, United produced testimony
from the managers at each of United’s
large and medium-sized maintenance bases,
many of whom described their personal ob
servations of mechanics making repeated
and unnecessary references to maintenance
manuals, refusing en masse to work
voluntary overtime, writing up
maintenance items immediately before
flight time (causing delays and
cancellations), and writing up cosmetic
defects which ordinarily would be
ignored, such as torn foot rests, worn
arm rests, and chipped paint.
(2) Letters and bulletins issued by IAM
District Lodge 141-M and other local
lodges
On October 3, 2000, District Lodge 141-
M--the body authorized by IAM to
negotiate the CBA between the mechanics
and United--sent a bulletin to all IAM
aircraft maintenance personnel stressing
the importance of ensuring that aircraft
be in airworthy condition before being
returned to service as required by the
federal aviation regulations. The
bulletin noted "apparent inconsistencies
in the procedures of reporting
maintenance discrepancies on United
Airlines aircraft." Specifically, it
noted that according to IMCOP operating
procedures, mechanics should report
discrepancies to the Airframe team leader
or the lead mechanic "to determine
whether a write-up is necessary," but the
Administrative and Operating Policy
suggested that write-ups can be generated
by dock personnel. The bulletin urges
individual technicians to write up
problems and to repair, replace, or defer
the discrepancy if necessary, and it
further exhorts the mechanics: "If you
find something wrong on an aircraft,
ACTION MUST BE TAKEN!" (emphasis in
original). First Norman Aff. para. 8,
Exhibit 1.
On October 13, District Lodge 141-M sent
a bulletin to its member mechanics under
the prominent title "Negotiations." The
bulletin opens by describing the recent
progress of the negotiations between
United and the IAM (which it casts in a
negative light), and proceeds to admonish
member mechanics to "work safe":
This week we can report that almost no
progress was accomplished . . . Your
Committee has made it clear that any
company proposal involving job
concessions not withdrawn would place
these negotiations in jeopardy and could
result in the IAM seeking self-help. . .
. We have been made aware of several
incidents of aircraft damage around the
system. Luckily, no employees have been
injured. We hope that the stress and
anxiety of these contract negotiations
have not been contributing factors. We
need to remind every employee that SAFETY
COMES FIRST! We don’t need aircraft
damage and certainly do not want anybody
injured. PLEASE WORK SAFE, take no part
in any job action, don’t believe rumors,
and remain solid behind your Committee.
United introduced testimony from some of
its maintenance officials that phrases
such as "work safe" are commonly
recognized by United mechanics as code
words calling for a work slowdown.
A posting on the IAM website during the
same time period echoed this message to
"work safe." An October 27 website
posting by the District 141-M negotiating
team recounts the recent status of
negotiations, and then reminds members to
"not believe rumors," "be supportive,"
"[w]ork safe," and "[t]ake no part in any
job action." Id. at para. 10, Exhibit 3.
In addition, a November 10 posting on the
same website reported that the NMB had
adjourned the current round of
negotiations, and stated that United had
not submitted realistic wage proposals.
It announced that IAM had called for a
release from further negotiations "in
order to begin the 30-day countdown," and
quoted Ford as saying: "We do not believe
United will bargain seriously without
additional pressure . . . . After 6 years
of dedication and sacrifice by IAM
members and 6 years of historic profits
by United, it’s payback time . . . . The
sooner United understands that the
better." The posting concluded: "while
the Railway Labor Act allows for near-
endless negotiations in the airline
industry, the membership of this union
does not." Id. at para. 11, Exhibit 4.
On October 19, 2000, one of IAM’s local
lodges issued a bulletin which stated:
"The company started its ’job action
letter campaign’ Tuesday in retaliation
to the I.A.M. Negotiating Committee’s
update of October 13, stating WORK SAFE!
This has obviously made the company
upset." The bulletin went on to excoriate
United for its strong-armed management
techniques, and asserted: "The ugly truth
is we are at war, all out war!" Id. at
para. 13, Exhibit 6.
United also presented bulletins and
memos which it claimed were issued by
other IAM Local Lodges/5 that stressed
the "safety first" message even more
emphatically. For example, a bulletin
which purported to come from IAM Local
Lodge 1781 prominently displayed the
words "Safety First" twice and stated:
We must work even harder at performing
our jobs in a safe manner . . . . We must
also be aware that we have a
responsibility to comply with the many
FAA and CAL/OSHA regulations required to
perform our daily jobs, no matter how
long it takes . . . . It is imperative
that, in these times of stress,
uncertainty and distractions; working
safely, within our skills, must be our
number one concern. NO JOB IS SO URGENT
THAT IT CAN’T BE DONE SAFELY. (emphasis
in original). Id. at para. 14, Exhibit 7.
In late October or early November, three
virtually identical bulletins appeared in
three separate United maintenance bases
under the headings "Negotiations 2000,"
"Millennium Negotiations," and "Lodge
1781 Strike Committee." One of them
appeared on an official IAM bulletin
board inside of a locked, glass case. The
bulletins read, in part:
In keeping with the "Safety First"
ideal, it is time for us to examine our
tools and equipment. Greasy wrenched
could result in personal injuries and
damaged parts. Check your boxes and
tools. If they haven’t been cleaned
lately, give some thought to safety and
clean them daily.
Some tools need lubrication to work
properly. Knives need to be sharpened to
work efficiently and safely. Now is the
time to take care of these needs.
Machinery and equipment also should be
checked for safety. Fork lifts, tugs,
drive belts, fitting devices, baggage
equipment, food service equipment . . .
all should be checked thoroughly. If it
isn’t safe, shut it down and get it
fixed. (emphasis in original).
Finally, a memo bearing the IAM seal and
purporting to be from Local Lodge 1487 in
Chicago further reinforced the message
under the heading of Work Safe. The memo
complains of excessive and inappropriate
discipline by United which it
characterizes as constituting "an
environment of intimidation." The memo
goes on to say, in part:
We, as the Grievance Committee, feel
obligated to advise you how to stay out
of trouble during these oppressive times.
We advise you to take the advice given by
Scotty Ford, D-141M President and General
Chair, on the bulletin dated Oct. 15,
2000 and WORK SAFE. Do not let outside
influences distract you from the job at
hand. The utmost importance must be put
on SAFETY so we can return to our
families after work.
They created this atmosphere, now we have
to deal with it. If you do not follow the
rules and procedures you will be
disciplined up to and including
discharge. For this reason we are asking
our members to be careful, follow all
procedures and WORK SAFE!!! (emphasis in
original.) Id. at sec. 16, Exhibit 9.
IAM denies that it issued these
bulletins.
(3) Letters and flyers posted by
individual mechanics
United also produced a number of
leaflets, flyers, and website messages
which it claimed were distributed in
United’s maintenance facilities or
directed at United mechanics that
explicitly acknowledged and encouraged
slowdown activities. For example, a flyer
entitled "TURN UP THE HEAT" and addressed
to United’s CEO, Jim Goodwin, which was
posted in San Francisco stated: "We, as
professionals, do not enjoy work
slowdowns, but you leave us no choice. .
. . NO OVERTIME November 21-28[:] 1.
Starting 0500 11/21[;] 2. No Four
Overs[;] 3. No Easy-Hours[;] 4. No Early
Starts[;] 5. No Working Through Lunch.
P.S. We will remember those who work!!"
Id. at para. 20, Exhibit 13. In addition,
United claims that it received other
flyers on or about November 7, 2000,
which stated, respectively: "[L]et’s
screw the bastards royally. It’s time to
turn up the heat," and "LET’S MAKE THIS
THE HOLIDAY SEASON FROM HELL!!!!!!!!"
Id. at para.para. 21 and 22, Exhibits 14
and 15. The third flyer which was signed
"IAM AFL/CIO" but was not on IAM
letterhead stated: "the members of the
International Association of Machinists
at United Airlines wish to make it known
that they must act aggressively against
their company during the upcoming holiday
travel season. Actions to be taken will
include massive slow downs and delaying
tactics beginning in late November, 2000
. . . ." Id. at sec.23, Exhibit 16. IAM
denies issuing any of these flyers.
On November 17, 2000, after hearing
argument from both sides, the district
court found that United was "likely to
succeed on the merits of its claims that
Defendants are violating the RLA," that
United was suffering "immediate,
substantial, and irreparable injury" in
the form of lost revenue and consumer
goodwill, and that the harm to IAM from
the issuance of the TRO would be
"inconsequential when compared to the
loss and hardship which United and the
public will suffer." Accordingly, the
court issued a TRO prohibiting IAM and
its members from engaging in or
encouraging any kind of slowdown activity
or other work action designed to
interfere with United’s airline
operations, and ordering all officers of
IAM’s district and local lodges to "take
all reasonable steps within their power"
to prevent the enjoined actions, by
(inter alia) notifying all IAM mechanics
of the issuance, contents, and meaning of
TRO in "the most expeditious means
possible," putting this notice on IAM’s
websites and recorded telephone hotlines,
instructing all IAM-represented personnel
to resume their normal working schedules
and practices, and directing members to
end any slowdown activity (and any
communications encouraging such activity)
upon pain of fine, suspension, or other
sanction by IAM. In response to concerns
expressed by IAM’s counsel that the TRO
might discourage IAM mechanics from
performing their jobs with their usual
care, the court added to the TRO the
following sentence: "This notice in no
way is meant to have impact upon each
mechanic’s exercise of their usual
diligence in providing appropriate safety
for all aircraft."
The TRO was not initially effective.
Indeed, the situation appeared to worsen
considerably after its issuance. In the
days following the TRO: (1) the number of
write-ups increased to an average of over
1500 per day, with an all-time peak of
2037 on November 22; (2) from November
18-30, the average number of out-of-
service aircraft increased to 42 with an
all-time high of 52 on November 26; (3)
during the same period, the number of
maintenance-related flight delays
increased to 8.8 percent of all flights;
(4) in the same period, the number of
flight cancellations due to mechanical
problems increased to 2.5 percent of all
flights. Each of these figures
represented an appreciable increase from
the corresponding levels for the month
before the TRO was issued (which were
already substantially higher than
historical averages). The parties have
differing explanations for this. United
believes that IAM failed to comply with
the TRO./6 IAM claims that it fully
complied with the TRO, and argues that
the ineffectiveness of the TRO
demonstrates that, to the extent that any
illegal work action was occurring at all
(which IAM did not concede), such action
was being performed by dissident
mechanics who were not in the union’s
control.
On November 21, IAM filed the
declarations of seven of its officers
describing its compliance with the TRO.
On the following day, United filed a
motion seeking to hold IAM in contempt of
the TRO. On November 27, the parties held
a telephonic conference with the district
court, during which the court instructed
United to identify particular individuals
who United felt were continuing to act
inappropriately, and to inform IAM of
who, when, and where such inappropriate
actions were taking place in order to
facilitate IAM’s efforts to implement the
TRO. The court also admonished IAM to "do
all in its power . . . to effectuate the
stoppage of any work action by the
mechanics," and to "take appropriate
aggressive actions in those instances
where the company has pointed out
continued work actions are taking place."
Shortly thereafter, United supplied IAM
with the names of 144 mechanics whom it
believed were performing an excessive
number of write-ups and identified
stations that were suffering a
disproportionate number of problems.
United asked IAM to counsel the mechanics
that it had identified. It also requested
the IAM officers who are individual
defendants in the case to conduct
personal briefings at each work location
to "explain what the TRO and status quo
means," "explicitly explain that all
slowdown messages are no longer valid,"
and to "convey with absolute sincerity
and commitment that they IAM will abide
with the TRO." United also asked IAM to
remove all materials encouraging the
slowdown (including the original IAM
bulletin announcing the TRO), and to post
the TRO along with two letters from Ford
on all bulletin boards. In addition, on
November 30, United’s counsel told IAM’s
counsel that United had incurred $66
million in damages due to the mechanic
slowdown since the issuance of the TRO.
Immediately thereafter, the situation
began to improve. Between December 1 and
10: (1) the number of write-ups dropped
to an average of 1,306 per day; (2) the
number of out-of-service aircraft
decreased to less than 30 per day; (3)
the percentage of flights delayed for
mechanical reasons dropped to 6.5
percent; and (4) the percentage of
maintenance-related flight cancellations
dropped to an average of 2.2 percent.
These numbers reflected measurable
improvement from the levels in place from
November 18-30, although they remained
significantly higher than historical
levels in all categories. Once again, the
parties provide conflicting explanations
for this turn of events. United argues
that the improvement was caused by IAM’s
belated efforts to abide by the TRO by
aggressively discouraging its members
from engaging in a work slowdown. IAM
counters that the amelioration was due
mainly to United’s long overdue efforts
to address the situation through its own
management by terminating, disciplining,
or at least counseling some individual
mechanics whom it believed were
responsible for the claimed slowdown./7
IAM also argued that the improvement
could be explained, at least in part, by
the recent actions that United took
against a rival union’s/8 website which
had been attacking the IAM and expressly
calling for a work slowdown among United
mechanics.
IAM moved to vacate the TRO on grounds
that it did not comply with the
procedural requirements of the Norris-
LaGuardia Act ("NLGA"). On December 7,
2000, the court denied IAM’s motion, but
dissolved the TRO sua sponte, stating
that there was some proof that the
issuance of the TRO "caused some activity
on the part of the Union, but at the same
time it caused a reaction by those
persons who may, as has been alleged, be
beyond the control of the Union." The
Court also found that "at this point . .
. neither party should perceive any
advantage by the issuance of the [TRO],"
and that "the compulsive reasons for the
issuance of the [TRO] have now subsided .
. . ." The court then stated:
I think the urgency of the [TRO] in the
court’s mind was because of the pending
travel over the Thanksgiving holidays and
also what the court perceived, based upon
the information the court had then, was
perhaps some activity on the part of the
Union if not actively attempting to
curtail that activity, maybe in a
somewhat covert manner to encourage that
activity. I think that the allegation of
that activity has clearly been dissipated
at this point in the court’s mind based
upon the submissions of the parties that
I have received since the order has been
in effect . . . . [B]ased upon the
information that I have received, the
[TRO] has been somewhat ineffective in
requiring the mechanics to do their jobs
appropriately without false claims of
safety issues in order to undermine the
ability of United to service its
customers.
The court noted that a hearing on
United’s motion for a preliminary
injunction was set for December 13, and
it opined that not having the TRO in
effect during that period would "give the
court an opportunity to view without the
order in place the activities of the
parties," thereby providing "some
guidance as to its findings as to whether
or not a preliminary injunction should
issue."
After hearing oral argument from the
parties, the district court denied
United’s motions for contempt and for a
preliminary injunction without written
opinion. In denying the motion for
contempt, while the court found that the
Union did not "immediately do all actions
which ultimately were done," and that the
manner of its initial posting of the TRO
"perhaps was not the most effective way
to garner acquiescence and compliance
with the order," the court found that
these failings did not rise to the level
of contempt and that the Union eventually
"complied not only with the intent but
with the letter of the [TRO] by taking
those actions which they thought were
prudent and escalating those actions when
it appeared that they were not
effective." The court also stated that
"the facts in this case have convinced
the court that there are some members of
[IAM]’s union who despite their best
efforts have continued to, and perhaps
will continue to, act inappropriately and
to do these job actions which are not
proper." In denying the preliminary
injunction, the court stated:
I think that there is somewhat of a mob
mentality out there somewhere where
people believe as long as we act in
concert and groups we are all safe by the
fact that no one can be identified,
singled out, and held to pay the
consequences of their actions . . . .
[T]hose persons being identified and
subjected to immediate consequences I
think is the best way and maybe the only
way to insure that the majority of the
members of the union continue to act
appropriately in this case. I find that
this is a much more effective way to
control thatmembership than it is for the
court to issue an order telling people to
do what they are legally obligated to do
under the various statutes that control
this situation.
United has appealed the district court’s
denial of its motion for preliminary
injunction, arguing that the district
erred both legally and factually in
refusing the injunction on the ground
that United could more effectively end
the slowdown by disciplining and/or
terminating those individual mechanics
responsible. IAM argues that the district
court correctly perceived that the NLGA
precluded the injunction unless it would
have been the "sole, effective means" of
solving the problem, and that the court
correctly found that such was not the
case here. In addition, IAM argues that
sec.sec. 106, 107(a), and 108 of the NLGA
barred the injunction, because there is
no "clear proof" that the IAM authorized,
encouraged or ratified the slowdown, and
because United did not make "every
reasonable effort to resolve the dispute"
before seeking the injunction.
DISCUSSION
In reviewing the denial of a preliminary
injunction, we review the district
court’s findings of fact for clear error,
its balancing of the factors for a
preliminary injunction under the abuse of
discretion standard, and its legal
conclusions de novo. See Kiel v. City of
Kenosha, 236 F.3d 814, 815 (7th Cir.
2000) (citation omitted); Teamsters Local
Unions Nos. 75 and 200 v. Barry Trucking,
Inc., 176 F.3d 1004, 1011 (7th Cir.
1999). We accord substantial deference to
the trial court’s decision because we
"recognize the advantage of the trial
court’s proximity to the evidence." See
Teamsters, 176 F.3d at 1011. Therefore,
we will not find a district court’s
factual finding clearly erroneous if it
is "plausible in light of the record
viewed in its entirety," even if we would
have "’weighed the evidence differently’
and reached the opposite conclusion." See
Air Line Pilots Ass’n Int’l v. United Air
Lines, Inc., 802 F.2d 886, 891 (7th Cir.
1986) (citation omitted) ("ALPA").
However, the lower court necessarily
abuses its discretion when it commits an
error of law, see MacDonald v. Chicago
Park District, 132 F.3d 355, 357 (7th
Cir. 1997) (citation omitted), and a
decision to deny a preliminary injunction
that is premised on an error of law is
entitled to no deference and must be
reversed. See, e.g., Delta Air Lines,
Inc. v. Air Line Pilots Ass’n Int’l, 2001
WL 42399, *5 (11th Cir. 2001) (citations
omitted).
The RLA was enacted, among other
reasons, "[t]o avoid any interruption to
commerce or to the operation of any
carrier engaged therein," and "to provide
for the prompt and orderly settlement of
all disputes concerning rates of pay,
rules, or working conditions." 45 U.S.C.
sec. 151a. The intent of the RLA is "to
encourage collective bargaining by the
parties ’in order to prevent, if
possible, wasteful strikes and
interruptions of interstate commerce.’"
ALPA, 802 F.2d at 895 (quoting Detroit &
Toledo Shore Line R.R. v. United Transp.
Union, 396 U.S. 142, 148 (1969) (footnote
omitted)). To effectuate these purposes,
the RLA imposes a substantive duty upon
"all carriers, their officers, agents and
employees to exert every reasonable
effort to make and maintain agreements .
. . and to settle all disputes . . . in
order to avoid any interruption to
commerce or to the operation of any
carrier growing out of any dispute
between the carrier and the employees
thereof." 45 U.S.C. sec. 152, First. This
duty runs both to management and to
labor, and it has been described as the
"heart" of the RLA. See Brotherhood of
R.R. Trainmen v. Jacksonville Terminal
Co., 394 U.S. 369, 377-78 (1969).
Moreover, the duty to exert every
reasonable effort to make and maintain
agreements is a substantive legal duty
which is enforceable by the courts.
Chicago & N.W. Ry. Co. v. United Transp.
Union, 402 U.S. 570, 577 (1971) ("[W]e
think it plain that [45 U.S.C. sec. 152,
First] was intended to be more than a
mere statement of policy or exhortation
to the parties; rather, it was designed
to be a legal obligation, enforceable by
whatever appropriate means might be
developed on a case-by-case basis.")
The RLA sets forth a detailed sequence
of steps that carriers and their
employees (or their employees’
representatives) must follow in
negotiating CBAs. First, the party
seeking a change in rates of pay, rules
or working conditions must give notice
and confer with the other party. 45
U.S.C. sec. 156. If the parties remain
unable to resolve their dispute after
this conference, either or both of them
may seek mediation by the NMB. See 45
U.S.C. sec. 155. If the mediation fails
to produce agreement, the NMB must
attempt to persuade the parties to submit
to binding arbitration. If either or both
of the parties rejects the offer of
arbitration and the dispute threatens
"substantially to interrupt interstate
commerce to a degree such as to deprive
any section of the country of substantial
transportation service," the NMB must
contact the President who may then create
an emergency board to "investigate and
report respecting such dispute." 45
U.S.C. sec. 160. If the NMB releases the
parties from mediation before an
agreement has been reached, the RLA
imposes a 30-day "cooling-off" period
upon the parties. Throughout this entire
lengthy negotiation process, carriers and
unions are required to maintain the
status quo with respect to rates of pay,
rules, and working conditions. See 45
U.S.C. sec.sec. 155, 156. The status quo
provisions are "central" to the RLA’s
design, see Shore Line, 396 U.S. at 150,
and they "must be read in conjunction
with the implicit status quo requirement
in the obligation imposed upon both
parties by [sec.152], First ’to exert
every reasonable effort’ to settle
disputes without interruption to
interstate commerce" as part of an
"integrated, harmonious scheme for
preserving the status quo from the
beginning of a major dispute through the
final 30-day ’cooling-off’ period." Id.
at 151, 152. If either side unilaterally
alters the status quo during the
bargaining andmediation process, a court
may issue an injunction to put a stop to
that party’s illegal self-help and to
restore the status quo, and it may do so
even without the traditional showing of
irreparable injury to the other party.
See Consol. Rail Corp. v. Ry. Labor
Executives’ Ass’n., 491 U.S. 299, 303
(1989). This rule authorizes courts to
enjoin not only strikes but also "union
conduct . . . which has the consequences
of a strike," such as refusal of
overtime, slowdowns, and sit-ins. See
generally ALPA, 802 F.2d at 906 (citation
omitted).
However, when a carrier seeks an
injunction against a union, "a court must
look not only to the RLA but also to the
NLGA to determine whether the court has
jurisdiction." See Delta Air Lines, 2001
WL 42399 at *4. As a general rule the
NLGA strips courts of jurisdiction to
enter injunctions against labor unions in
cases growing out of labor disputes,
"express[ing] a basic policy against the
injunction of activities of labor
unions." See Int’l Ass’n of Machinists v.
Street, 367 U.S. 740, 772 (1961). The
NLGA also provides that "no injunction or
temporary restraining order shall be
issued on account of any threat or
unlawful act excepting against the . . .
organization making the threat or commit
ting the unlawful act or actually
ratifying the same after actual knowledge
thereof," 29 U.S.C. sec. 107(a), and that
"[n]o . . . organization participating or
interested in a labor dispute shall be
held responsible or liable . . . for the
unlawful acts of individual officers,
members, or agents, except upon clear
proof of actual participation in, or
actual authorization of, such acts, or of
ratification of such acts after actual
knowledge thereof." 29 U.S.C. sec. 106.
In seeking to accommodate the conflicting
provisions of the RLA and the NLGA, the
Supreme Court has held that where a
challenged action violates specific
provisions of the RLA (such as the status
quo provision of 45 U.S.C. sec. 152,
First), "the specific provisions of the
[RLA] take precedence over the more
general provisions of the [NLGA]," see
Pittsburgh & Lake Erie R.R. Co. v. Ry.
Labor Executives’ Ass’n, 491 U.S. 490,
513 (1989) (quotation omitted); see also
Chicago & North Western Ry., 402 U.S. at
581; Brotherhood of R.R. Trainmen v.
Chicago River & Indiana R.R. Co., 353
U.S. 30, 41-42 (1957), and courts can
issue injunctions to enforce the RLA
provisions at issue notwithstanding the
NLGA./9 In other words, the Court has
carved out an exception from the NLGA’s
general prohibition on injunctive relief
against union activity for violations of
specific provisions of the RLA. However,
the Court has stated that this exception
is a limited one which applies only if an
injunction is the "only, practical,
effective means of enforcing the duty to
exert every reasonable effort to make and
maintain agreements," see Chicago & North
Western Ry., 402 U.S. at 583, or if "that
remedy alone can effectively guard the
plaintiff’s right." Id. at 582 (quotation
omitted).
United argues that the district court
misapplied the law and abused its
discretion in denying its motion for a
preliminary injunction under the RLA.
First, United contends that since the
court found that some of its mechanics
were engaging in a concerted job action
(that is, a deliberate slowdown) during
the mediation process, United was
entitled under the RLA to an injunction
ordering the union to make every
reasonable effort to stop the slowdown
even if it could not be determined
whether the injunction against the union
would have been entirely effective in
ending it. Therefore, United asserts that
the district court erred as a matter of
law when it decided not to issue the
injunction solely on the ground that it
would be more "effective" for United to
address the problem by disciplining or
firing the individual workers who were
responsible for the slowdown. IAM
counters that, given the proscriptions of
the NLGA, status quo injunctions can only
issue against a union when the injunction
would be the "only practical, effective
means" of enforcing the RLA, and that the
district court was therefore required to
inquire into the effectiveness of the
injunction, and to deny it once it
legitimately concluded that United could
more effectively address the problem
through management efforts.
We agree with United. While it is true
that, given the goals of the NLGA, courts
should hesitate to issue an injunction
unless it is the "sole effective means,"
to address the RLA violation, IAM cites
no authority (nor have we found any) for
the proposition that a district court
must deny a preliminary injunction
against a recognized violation of a
specific provision of the RLA by union
members if it determines that the
employer could "more effectively" curb
the violation by directly disciplining or
terminating individual employees. Indeed,
such a suggestion runs counter to the
spirit of the RLA’s status quo
provisions. As noted, those provisions
impose an affirmative legal duty upon
both employers and unions alike--which is
enforceable by the courts--to preserve
the status quo during the bargaining and
mediation process imposed by the RLA. A
union has the affirmative duty under the
status quo provisions of the RLA to exert
every reasonable effort to prevent or
discourage a strike or a concerted work
action like the slowdown in this case.
See, e.g., Delta Air Lines, 2001 WL 42399at *6; see generally Shore Line, 396 U.S.
at 152-53. Once a court determines that
such a concerted work action is occurring
in violation of the RLA, an injunction
can issue ordering the union to observe
its statutory duty by trying to stop it.
See, e.g., Delta 2001 WL 42399 at *6.
Whether United can diminish or even stop
the work slowdown through its own actions
has nothing to do with the IAM’s
enforceable duty to do everything
reasonable to end it. To hold otherwise
would be to deny the union’s independent
obligations under the RLA. This is not to
say, however, that the limitations placed
upon the issuance of injunctions against
unions which violate their status quo
obligations under the RLA cases are
insubstantial. It remains true that
courts should only enjoin such violations
when the injunction would be the "sole
practical, effective means of enforcing
the duty to exert every reasonable effort
to make and maintain agreements." This
clearly implies that where there are
other effective means available to
accomplish that end, injunctions should
not issue. However, requiring United to
take efforts to end the slowdown would
not be an "effective means" of enforcing
IAM’s duty to "exert every reasonable
effort to make and maintain agreements";
rather, it would be requiring United to
assume IAM’s duty altogether. Indeed, if
we were to accept the premise that a
carrier’s ability to fire or discipline
individual employees is an "effective"
remedy for a union’s status quo
violations, a status quo injunction could
never issue against a union, since in
virtually every case an employer
presumably could take some such measures.
Such an interpretation would eviscerate
the status quo provisions of the RLA.
Therefore, we find that the district
court’s decision in this case was not
justifiable, much less mandated, by the
NLGA. To the extent that the district
court may have concluded otherwise, it
erred as a matter of law./10
For similar reasons, we also reject
IAM’s argument that sec. 8 of the NLGA
bars United from seeking injunctive
relief in this case. That section
provides:
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 arbitration.
29 U.S.C. sec. 108. This section is
applicable to injunctions sought by
carriers against unions under the status
quo provisions of the RLA. See generally
ALPA, 802 F.2d at 900, 905-06. By its
terms, this "clean hands" provision
precludes a carrier involved in a labor
dispute with a union from obtaining
injunctive relief when the carrier has
either: (1) violated a legal obligation
with respect to the labor dispute in
question; or (2) failed to make every
reasonable effort to settle the labor
dispute either through negotiation,
mediation, or arbitration. See
Brotherhood of R.R. Trainmen Enterprise
Lodge, No. 27 v. Toledo, P. & W.R.R., 321
U.S. 50 (1944) (holding that, while the
RLA does not require either party to a
major labor dispute to submit to arbitra
tion, a carrier who refuses this
available avenue for settlement cannot
obtain injunctive relief under the status
quo provisions).
IAM argues that United did not make
every "reasonable effort to settle" the
dispute in this case, claiming that
United made virtually no attempt to
resolve the slowdown through negotiations
with IAM before it filed suit. IAM claims
that Studdert’s November 10 letter to
Ford was the first and only time that
United mentioned the problem to IAM
officials before seeking the injunction,
and that the letter was in fact sent
immediately after United had thanked IAM
for "keeping the lid on" and averting
serious work actions during a tense
period of negotiations. United disputes
these assertions, but we need not credit
United’s version of the story to dispose
of IAM’s claim. Section 8 requires a
party to a labor dispute to "exert every
reasonable effort" to settle the labor
dispute in question (through negotiation,
mediation or arbitration) before seeking
to enjoin an action by the other party
which relates to the dispute. It does not
require a party who is already engaging
in good-faith effort to settle the labor
dispute through negotiation, mediation,
or arbitration to "exert every reasonable
effort" to prevent or end an unlawful
strike or work action before seeking
judicial relief. Indeed, requiring a
carrier to seek a negotiated solution
before moving to enjoin an illegal work
action would enable unions to use such
actions to extort concessions from the
carrier during the negotiation process.
Such a result would render the union’s
duty under 45 U.S.C. sec. 152, First a
nullity, and would run directly contrary
to the policy rationales of the RLA’s
status quo provisions. If IAM had
demonstrated that United had either
violated its own status quo obligations
(or some other duty under the labor laws)
or had failed to pursue all of the
available channels of negotiation,
mediation, and arbitration provided under
the RLA, then it would have a stronger
case for barring the injunction under
sec. 8 of the NLGA. However, as IAM has
not made any such contention, we must
reject its argument under sec. 8./11
Moreover, it seems clear in this case
that an injunction would be the "sole,
effective means" of enforcing the IAM’s
duties under the status quo provisions of
the RLA. The district court concluded
that a number of United mechanics were
engaging in a deliberate and unlawful
slowdown (or that a number of mechanics
were "do[ing] job actions which are not
proper" and acting "in concert" or in a
"mob mentality"). This unilateral resort
to self-help on the part of union members
puts severe economic pressures on United,
thereby undermining its bargaining
position during the period of negotiation
and mediation. This is precisely the kind
of action that the RLA status quo
provisions seek to prevent, and we cannot
conclude that other remedies, short of an
injunction, would be effective in doing
so. Cf. Int’l Ass’n of Machinists &
Aerospace Workers v. Transportes Aereos
Mercantiles Pan Americandos, S.A., 924
F.2d 1005, 1011 (11th Cir. 1991).
IAM also argues that sec.sec. 6 and 7(a)
of the NLGA prohibit the issuance of a
preliminary injunction against it.
Section 7 limits the jurisdiction of the
federal courts to issue injunctions in
cases involving or growing out of a labor
dispute, and subsection (a) provides in
part that "no injunction or temporary
restraining order shall be issued on
account of any threat or unlawful act
excepting against the person or persons,
association, or organization making the
threat or committing the unlawful act or
actually authorizing or ratifying the
same after actual knowledge thereof." 29
U.S.C. sec. 107(a). Section 6 provides in
part that "no association or organization
participating or interested in a labor
dispute shall be held responsible or
liable in any court of the United States
for the unlawful acts of individual offi
cers, members, or agents, except upon
clear proof of actual participation in,
or actual authorization of, such acts, or
of ratification of such acts after actual
knowledge thereof." 29 U.S.C. sec. 106.
In ALPA, we ruled that a carrier could
not establish that a union had committed
a status quo violation by means of an
orchestrated "sick-out" without proving
by clear and convincing evidence that the
union had promoted the alleged sick-out,
and that statistical evidence showing
that pilots had taken twice their usual
number of sick days during the relevant
time period was insufficient by itself to
implicate the union under this "clear proof"
standard. See ALPA, 802 F.2d at 905-06.
IAM argues that, even if some United
mechanics were engaging in a work
slowdown, United has not offered "clear proof"
that IAM authorized or ratified the
slowdown. IAM maintains that it had
repeatedly counseled its mechanics not to
engage in any job action, and that many
of the "work safe" bulletins and flyers
that United offered as evidence of a
concerted slowdown were written not by
IAM but by "strident opponents" of IAM
(i.e., by mechanics or others who were
sympathetic with a rival union and
hostile to IAM). IAM also asserts that
any "work safe" language appearing in
those bulletins that it did publish meant
only what it said and was intended
innocently. For example, IAM claims that
the "work safe" language contained in the
District 141-M bulletin of October 13 was
inserted in response to United’s concerns
regarding recent workplace accidents.
Moreover, IAM contends that the increases
in write-ups and other maintenance-
related anomalies experienced by United
could have been caused by only a "few
dissident mechanics."
We find that United has offered enough
"clear proof" of IAM’s involvement in the
work slowdown to satisfy the standard of
sec. 6. While it is true that statistics
alone will not provide clear proof of a
union’s involvement in a work action,
United did not rely on statistical
evidence alone. In fact, it presented
evidence of the kind that we have
expressly suggested would establish a
union’s responsibility for authorizing or
ratifying a work action under sec. 6. See
ALPA, 802 F.2d at 905. United produced a
number of IAM bulletins which included
prominently displayed exhortations to
"work safe." Moreover, United produced
testimony from some of its maintenance
officials that a union’s suggestions to
its mechanics to "work safe" or to "work
by the book" are commonly recognized
signals among union mechanics for a work
slowdown. IAM has not challenged this
testimony, and courts have found similar
language to be "codes" for job actions.
See, e.g., The New York Times Co. v.
Newspaper & Mail Deliverers Union, 740 F.
Supp. 240, 244 (S.D.N.Y. 1990) (finding
that a union chapel chairman’s directive
to members to "adhere to strict
contractual requirements in making their
deliveries" was a call for a "slowdown
from normal operations"); Tex. Int’l
Airlines, Inc. v. Air Line Pilots Ass’n
Int’l, 518 F. Supp. 203, 210-11 (S.D.
Tex. 1981) (finding that council
chairman’s letter to union members
advising them to "adhere to company
policies, and contractual agreements";
"not to neglect even the most minor write
ups"; . . . and "to check every item on
the checklists" was sent with the
understanding that pilots would interpret
it as a call for a slowdown). Further,
while IAM claims that it did not publish
many of these bulletins, it admits to
publishing some of them (for example, the
District Lodge 141-M bulletin published
on October 13, and the October 19
bulletin issued by Local Lodge 2294 in
Indianapolis). IAM offers no satisfying
explanation for why these bulletins
included--indeed, trumpeted--the message
to WORK SAFE! in the context of blaming
United for the lack of progress in the
negotiations or of criticizing United for
its recent oppressive management actions.
Nor does IAM explain why the language
telling mechanics to "work safe" was the
only language written in bold face,
underlined, or in all capital letters.
While some of these bulletins also
contain statements urging members not to
"engage in any job action," such
statements are dwarfed by the messages to
"work safe," leaving the clear impression
that the relatively inconspicuous
statements discouraging a slowdown were
not meant to be taken at face value.
Given the context in which the "work
safe" messages appeared and the prominent
nature of their display, their obvious
intent was to urge mechanics to engage in
a work slowdown in response to the
impasse in negotiations. In addition,
given that IAM does not deny that such
language can serve as a code for a
slowdown, we find it difficult to believe
that IAM would have included such
language in the context of bulletins
regarding negotiations (especially at a
time when it claims that bulletins
bearing the same code language were being
distributed by dissident mechanics as a
call for a slowdown) unless it intended
to signal the mechanics to engage in a
slowdown.
In addition, although it denies
responsibility for their authorship, IAM
does not satisfactorily explain how even
more suspicious bulletins came to be
distributed in three United maintenance
centers in late October or early
November, at least one of which was
placed in a locked IAM bulletin board.
These bulletins were issued under the
headings "Negotiations 2000," "Millennium
Negotiations," and "Lodge 1781 Strike
Committee,"/12 and they each urged
mechanics (in virtually identical
language) to clean their boxes and tools
"daily" and to "shut down and fix"
anything that isn’t safe, in keeping with
the "safety first ideal." This is exactly
the kind of evidence that we have
suggested could provide "clear proof" of
a union’s authorization of a slowdown.
See ALPA, 802 F.2d at 905 (suggesting
that statistical evidence of a sickout
plus, inter alia, "a notice posted on a
union bulletin board" could indicate
union involvement in a sickout under sec.
6) (discussing Pan American World
Airways, Inc. v. Independent Union of
Flight Attendants, 93 Lab.Cas. (CCH)
para. 13,307, 20,035 (S.D.N.Y. July 20,
1981) (finding evidence of union
involvement in a sickout sufficient to
support an injunction where, inter alia,
the union did not take sufficient steps
to disavow a planned sickout by its
members and where an unsigned notice
reporting on the negotiations and
indirectly calling for the sickout was
posted on a locked union bulletin board
to which only the union had access)).
When this evidence is considered
alongside United’s compelling statistical
evidence, which suggests that the work
slowdown began to abate just as IAM
stepped up its efforts to discourage it
in late November, IAM’s involvement in
the slowdown becomes all the more
apparent. Thus, while it is not clear
that the district court found that IAM
had not authorized the slowdown,/13
even if it did, we would find such a
finding clearly erroneous.
Finally, IAM argues that even if the
NLGA did not dictate the result reached
by the district court, the court
nevertheless had the discretion under
traditional principles of equity to deny
the injunction--notwithstanding the
provisions of the RLA--if it found that
the injunction would not effectively
provide United with the relief it sought.
See, e.g., Virginian Ry. Co. v. Sys.
Fed’n No. 40, 300 U.S. 515, 550 (1937).
IAM contends that the district court
found that the injunction would be
ineffective after carefully considering
the record evidence, which suggested that
the TRO had been relatively ineffective
in restoring the status quo and that the
situation had not worsened appreciably
for United once the TRO was dissolved.
Therefore, IAM maintains that the
district court’s factual finding that the
injunction would be similarly ineffective
was not clearly erroneous, and must be
affirmed. We reject this argument. The
record does not support an inference that
the injunction would be ineffective. To
the contrary, the statistical evidence
before the district court suggested that,
while the TRO did not succeed in bringing
the rates of writeups, planes held out of
service, and maintenance-related
cancellations and delays to historical
levels, it did have a substantial
positive effect after the IAM sought to
implement it more aggressively. We find
IAM’s contention that this positive
effect was due solely to United’s belated
efforts to counsel and to take
disciplinary action against offending
mechanics unpersuasive in light of
United’s submissions that it did take
such actions earlier, and that such
actions had little effect. Moreover, even
assuming that United’s management efforts
were partly responsible for the positive
trend (which, we note, the district court
did not expressly find), we find no
plausible basis for the conclusion that
an injunction against the union would not
have an additional positive effect. Even
if we were to agree that United could
achieve favorable results by disciplining
individual mechanics, the evidence
suggests that it could achieve even more
favorable results if, in addition, the
injunction were in place. Given all of
this, and considering that in issuing the
TRO the district court found that the
traditional equitable factors--including
the balance of hardships and the public
interest--weighed in favor of granting
the injunction and that it never
expressly found to the contrary, we see
no equitable reason to withhold
injunctive relief in this case./14
Moreover, we note that the district
court did not expressly find that the
injunction would be wholly ineffective.
Rather, in dissolving the TRO it found
that the TRO had been "somewhat
ineffective," and in denying United’s
motion for a preliminary injunction it
found merely that it would be "more
effective" for United to try to resolve
the problem through management. This
latter finding seems to be the basis for
the court’s decision, and the court
unfortunately provided very little
support for the finding. In any event, we
hold that the court misapplied the law in
basing its decision on such a finding.
The court concluded that some United
mechanics were engaging in a work
slowdown in violation of the RLA, and as
we have already demonstrated, the
evidence established IAM’s involvement in
the illegal slowdown. As we have noted,
under these circumstances a court may
issue an injunction against a union as
the "sole, effective means" of enforcing
the union to observe its obligations
under the RLA’s status quo provisions,
and a carrier’s efforts to solve the
problem through management are no
substitute for judicial enforcement of
the union’s independent obligations. See
National Airlines, Inc. v. Int’l Ass’n of
Machinists and Aerospace Workers, 416
F.2d 998, 1006 n.7 (5th Cir. 1969)
(stating that "[t]he primary
responsibility for ending [a] strike [in
violation of the RLA] rest[s] in the
district court"). Therefore, by denying
an injunction against IAM’s illegal job
action solely on the grounds that the
problem could be more effectively
addressed by United, the court denied
United a judicial remedy to which it was
entitled under the RLA and erred as a
matter of law.
CONCLUSION
We have considered IAM’s other
arguments, and find them meritless. For
the foregoing reasons, we REVERSE the
decision of the district court, and REMAND
with instructions to enter the
preliminary injunction against IAM and to
fix a date for trial on the issue of a
permanent injunction in as short a time
as is reasonably possible. REVERSED and
REMANDED.
/1 A maintenance "write-up" is a written record by
a mechanic of any item on an aircraft that may
have a defect or a condition requiring further
inspection or repair. Some write-ups identify
serious defects that may affect airworthiness and
therefore must be repaired immediately. Others
involve merely trivial or cosmetic defects, such
as broken tray tables or scratched paint, which
can be repaired at a later time.
/2 A "cycle time" is the time that it takes to
perform a scheduled maintenance check.
/3 The number of aircraft out of service for an
unscheduled maintenance check is a function of
two factors: the number of maintenance write-ups,
and the amount of time that it takes the mechan-
ics to repair the defects.
/4 According to an economist retained by United, the
odds that the increases in cancellations and
delays could be caused by random, coincidental
behavior by United’s mechanics were less than one
in a trillion.
/5 IAM denies that any of its local lodges actually
issued these bulletins or memos, and claimed that
they were issued either by individual "dissident"
union members without authorization, or by other
individuals who were hostile to the IAM and
sympathetic to a rival union that had been gain-
ing strength at United and that was trying to
replace IAM. In his deposition, United Vice
President of Line Maintenance William Norman
conceded that he did not know whether they were
actually published or produced by IAM lodges or
union officials. Norman Dep. at 85-6.
/6 United claims that IAM posted the TRO only on
their websites, that they did not direct member
mechanics to cease all slowdown activity and all
communications encouraging such activity upon
pain of fine, suspension or other sanction by
IAM, that the website bulletin that IAM did
release implicitly encouraged continuation of the
slowdown (by stressing the continued need for
mechanics to observe all safety regulations), and
that the two local lodge officers who issued
notice of the TRO expressed contempt for it. For
its part, IAM claims that it personally served
every mechanic with a copy of the TRO within days
of its issuance, that it immediately posted
notice of the TRO on its website and on union-
maintained bulletin boards, that its website
notice did urge compliance with the TRO (and that
its reference to the district court’s own lan-
guage stating that the TRO was not meant to
impede the mechanics’ compliance with safety
regulations was not a signal for a further slow-
down), and that Union representatives notified
mechanics at stations throughout the county of
the need to comply with the TRO.
/7 IAM contends that United never took any such
actions until after the November 27 conference
with the court. IAM claims that the November 10
letter from Studdert to Ford was the first time
that United had accused IAM of encouraging a
slowdown (indeed, at a meeting one week before
the letter, IAM claims that United complimented
IAM for "keeping the lid on," or for preventing
job actions by its members during the tense
negotiations). IAM also claims that United gave
it specific evidence and the names of individual
mechanics engaged in the slowdown only after the
November 27 conference, and that IAM later dis-
covered that almost none of those individuals had
been disciplined or even counseled by United
before United filed suit. United claims that it
did discipline hundreds of employees (and fired
some) long before filing suit, and that these
efforts had little effect in curbing the slowdown
until IAM finally got serious about implementing
the TRO ). It also claims that it had several
conversations with IAM about the problem before
the Studdert letter (noting that the letter
references earlier conversations between United
and IAM about the slowdowns).
/8 IAM noted that mechanics who supported the rival
union had called for work slowdowns and refusals
to work overtime publicly and in writing immedi-
ately after United announced its plans to acquire
U.S. Airways (a decision vigorously opposed by
many United mechanics), and criticized IAM for
refusing to do the same. Further, the mechanics
supportive of the rival union staged what United
believed was a "sick out" in several locations
immediately after July 12. After United fired 11
of these employees, and disciplined 11 others,
the sick out ended.
/9 However, when a carrier seeks to enjoin a strike
against a union under the status quo provisions
of the RLA, the procedural provisions of the NLGA
remain in effect. See Delta Air Lines, 2001 WL
42399 at *7. For example, a carrier seeking an
injunction against a union must put on live
testimony with the opportunity for cross-examina-
tion, see 29 U.S.C. sec. 107, or there must at
least be some equivalent guarantee of the reli-
ability of the evidence presented. See Delta,
2001 WL 42399 at *7. However, in this case the
parties stipulated to submit their case to the
district court on the written record (through
affidavits and briefs) without livetestimony,
Dec. 13 Trans. at 4, and IAM has not raised any
issue of its right to cross-examination either
here or below. Thus, the issue is waived.
/10 The cases cited by IAM on this point do not
compel a different conclusion. In Int’l Ass’n of
Machinists v. Street, 367 U.S. 740 (1961), the
Court overturned a blanket injunction brought by
railway union members to enjoin their union from
violating the RLA by spending funds exacted from
union members on political causes, where the
injunction restrained the union from collecting
any funds from the objecting members. The court
held that, because this injunction was overbroad
(that is, because the plaintiff’s rights could be
effectively vindicated by a more narrowly tai-
lored injunction) it was not the only effective
remedy available, and was therefore impermissible
under the NLGA. The Court remanded for the dis-
trict court to impose a more narrowly tailored
remedy, suggesting that a narrower injunction
would be appropriate. In Chicago & North Western
R.R. Co., 402 U.S. 570 (1971), the court reversed
a lower court’s determination that sec. 152,
First was not a legal obligation enforceable
against a union by injunction, and remanded for
the lower court to determine whether a strike
injunction sought by the carrier in that case was
the "only practical, effective means" of enforc-
ing that section of the RLA. Neither case stands
for the proposition that a court must deny an
injunction against an illegal work action if it
appears that the carrier could more effectively
address the problem through management.
/11 We should note, however, that even if IAM had
demonstrated some such action on United’s part,
it still might not be able to block United from
obtaining the injunction it seeks. We have not
read sec. 8 of the NLGA as forming an absolute
bar to injunctive relief against status quo
violations when the party seeking the injunction
has violated either its own status quo obliga-
tions or some other legal obligation. See ALPA,
802 F.2d at 901. Rather, we have "weigh[ed] the
competing equities to determine whether applying
section 8’s bar to injunctive relief would serve
to further underlying purposes of both the RLA
and the [NGLA]." In so doing, we have expressly
noted that the imperatives of the RLA may over-
ride sec. 8, and that a party’s lack of "clean
hands" under sec. 8 "may be overcome by a balanc-
ing of the interests, particularly where it is
the public interest involved." See Illinois
Central R.R. Co. v. Brotherhood of R.R. Trainmen,
398 F.2d 973, 976 (7th Cir. 1968) (quotation
omitted). While we do not decide the matter, we
note that United could make a strong argument
here that both the balancing of hardships and the
public interest weigh in favor of the issuance of
the injunction in this case, and that therefore
the injunction could have been granted even if
United had violated sec. 8 of the NLGA.
/12 The latter bulletin bore a cartoon of a wolf and
stated "Wolf, play it safe, negotiate," and it
purported to be from a committee that IAM claims
does not exist. Third Supp. Dec. of Ford at para.
4. Steve Wolf was the former CEO of United (in
the early 1990’s). Id.; Dec. 13 Trans. at 43.
This arguably suggests that the "wolf" bulletin
was created several years ago, and not in connec-
tion with the events at issue in this case.
Moreover, as IAM notes, United Vice President of
Line Maintenance William Norman admitted in his
deposition that he did not know whether IAM
actually published this bulletin, or when it was
published. Norman Dep. at 81-82. However, even
assuming that this bulletin was published in the
early 1990’s, IAM has not explained how it came
to be re-circulated in October and November of
2000, nor has it explained why a bulletin with a
substantially identical message (and without any
reference to Wolf) appeared simultaneously in a
locked IAM bulletin board at another location.
/13 IAM claims that in dissolving the TRO, the dis-
trict court found that IAM was not responsible
for the alleged slowdown when it stated that the
initial "allegation" that the IAM was covertlyen-
couraging the slowdown had "clearly been dissi-
pated . . . ." However, read in context, this
statement seems to indicate that the district
court believed that IAM was no longer encouraging
the slowdown (after the TRO had been issued), not
that it never had encouraged it. Some statements
that the court made during the December 13 hear-
ing on the preliminary injunction do suggest that
the court believed that certain union members
were engaging in a wildcat work action, "despite
[IAM]’s best efforts." However, it is far from
clear that the court actually made a finding on
this issue.
/14 IAM argues that an injunction would not be the
most effective means to "address conduct of
mechanics engaged in safety sensitive work," to
"address conduct that is intertwined with consti-
tutionally protected speech," or to "address the
problem of dissident mechanics." We are not
persuaded. First, courts have enjoined illegal
work actions undertaken under the guise of safe-
ty, see, e.g., Long Island R.R. Co. v. Sys. Fed’n
No. 156, 368 F.2d 50, 52 (2d Cir. 1966), and IAM
offers nothing to suggest that courts could not
frame injunctive orders carefully to ensure that
legitimate safety inspections are not compro-
mised. (Indeed, the district court in this case
did just that with respect to the TRO). In
addition, enjoining a union from encouraging
illegal job actions (or forcing it to discourage
such action) during the limited period of negoti-
ation and mediation would not intrude on consti-
tutionally protected speech, as it would leave
the union free to criticize the company’s bar-
gaining position. Finally, we reject IAM’s argu-
ment that the injunction would be ineffective
because the slowdown was caused by dissident
mechanics, both because we find that the evidence
establishes IAM’s involvement, and because the
statistical evidence strongly suggested that
IAM’s efforts to implement the TRO in late Novem-
ber were having an appreciable effect on the
slowdown.