Aircraft Mechanics Fraternal Association, Plaintiff-Counter-Defendant-Appellant v. Atlantic Coast Airlines, Defendant-Counter-Claimant-Appellee

Judge HEANEY dissents with a separate opinion.

PARKER, Circuit Judge:

This case involves a continuing labor dispute between Aircraft Mechanics Fraternal Association (“Union”) and Atlantic Coast Airlines (“Airline”). The Union is seeking a declaratory judgment establishing its right to engage in a work stoppage in view of the district court’s earlier unpublished decision, affirmed by this Court, Aircraft Mechanics Fraternal Ass’n v. Atlantic Coast Airlines, Inc., No. 94 Civ. 7915(JSM), 1994 WL 623061 (S.D.N.Y. Nov. 9, 1994), aff'd, 55 F.3d 90 (2d Cir.1995) (“AMFA I”), which held that sections of the Railway Labor Act, 45 U.S.C. § 151 et seq. (“RLA”), which proscribe unilateral changes in wages and conditions of employment where a collective bargaining agreement (“CBA”) is in effect, do not impose an obligation on a carrier to maintain the status quo in the absence of a CBA.

On March 11,1994, the Union was certified as the exclusive bargaining agent for certain aircraft maintenance personnel of the Airline. After commencing collective bargaining under the provisions of the RLA, but prior to reaching an agreement, the Airline unilaterally changed certain terms of employment pertaining to the bargaining unit. The Union sought a preliminary injunction prohibiting the changes on the ground that the RLA requires each of the parties engaged in collective bargaining to-maintain the status quo until dispute resolution under the RLA is completed. In AMFA I, we affirmed the district court’s denial of preliminary injunctive relief.

After AMFA I, the Union sought a declaratory judgment to establish that it had the right under the RLA to respond to the Airline’s unilateral actions with self-help in the form of a work stoppage. The district court denied the requested relief in a Memorandum Opinion and Order dated December 15, 1995 (John S. Martin, Jr., Judge). The court reasoned that the Union had an obligation under the good faith bargaining provision contained in RLA Section 2 First, 45 U.S.C. § 152 First, “to endeavor to reach an agreement in order to avoid work stoppages” and thus, was prevented from striking. Aircraft Mechanics Fraternal Ass’n v. Atlantic Coast Airlines, Inc., No. 94 Civ. 7915(JSM), 1995 WL 753902, at *1 (S.D.N.Y. Dec. 18, 1995) (“AMFA II”).

The question presented on appeal is whether, absent the presence of a carrier’s bad faith, a newly certified union is free under the RLA to engage in a work stoppage while negotiating the terms of its initial CBA with a carrier, even when the carrier has unilaterally altered the terms and conditions of employment. We agree with the conclusion of the district court that the RLA does not permit such action, and therefore affirm.

I. BACKGROUND

On March 11, 1994, the same date the Union was certified as the exclusive bargaining agent for the bargaining unit, the Union served the Airline with a list of bargaining proposals. The parties commenced contract negotiations at a meeting held on March 29, 1994. By August 23,1994, the Union advised the National Mediation Board (“NMB”) that the intervention of a federal mediator was required because the parties had reached an impasse.

In October 1994, the Airline unilaterally altered the overtime wage payment practices for mechanics by implementing a new policy for accruing time toward determining overtime pay. The sick leave policy applicable to the represented group was also unilaterally changed. In addition, the Airline announced that it was eliminating the position of “lead mechanic,” one of the job classifications in the represented unit, in favor of establishing a new managerial classification to assume the job functions formerly performed by lead mechanics.

In November 1994, the Union sought a preliminary injunction prohibiting the unilateral changes on the ground that the RLA requires each of the parties engaged in collective bargaining to maintain the status quo until dispute resolution under the RLA is completed. The Union’s request for a preliminary injunction was denied, which denial was affirmed in May 1995 on appeal to this Court in AMFA I. We noted in that opinion that, though the Union disputed the unilateral changes instituted by the Airline, “the Union [did] not contend that the Airline [ ] bargained in bad faith.” 55 F.3d at 93. A federal mediator was appointed in December 1994. Negotiations are ongoing.

The Union then sought a declaratory judgment to establish that it had' the right under the RLA to respond to the Airline’s unilateral actions with self-help in the form of a work stoppage. In denying the requested relief, the district court held that the Union had an obligation under the good faith bargaining provisions of Section 2 First of the RLA “to endeavor to reach an agreement in order to avoid work stoppages” even whére the employer unilaterally alters the terms and conditions of employment during the collective bargaining process, in the absence of a CBA AMFA II, 1995 WL 753902, at *1. According to the district court, “the [Airline’s] duty to exert a reasonable effort to reach an agreement was not necessarily breached because it implemented changes to working conditions.” Id. The Union’s decision to strike, however, would necessarily violate its duty to negotiate in good faith to avoid a work stoppage under the RLA. Id. This appeal followed.

II. DISCUSSION

Congress passed the RLA to “encourage collective bargaining by railroads and their employees in order to prevent, if possible, wasteful strikes and interruptions of interstate commerce.” Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 148, 90 S.Ct. 294, 298, 24 L.Ed.2d 325 (1969). RLA Section 2 First requires the parties “to exert every reasonable effort to make and maintain agreements ... in order to avoid any interruption to commerce or to the operation of any carrier....” 45 U.S.C. § 152 First. The requirement that the parties attempt reasonably to reach agreements without work stoppages operates in concert with three status quo provisions in the Act. The fact that the status quo provisions may not be applicable in certain situations, however, does not negate the obligation of the parties under the RLA to exert every reasonable effort to resolve disputes.

The first status quo provision is provided by Sections 2 Seventh and 6, 45 U.S.C. §§ 152 Seventh and 156, and requires that any party desiring to effect a change of rates of pay, rules, or working conditions must give thirty days’ written notice, during which time the status quo must be maintained. In AMFA I, we held that this provision was not applicable to the case at bar when we stated:

Sections 2 Seventh and 6 of the Act expressly proscribe changes in wages and conditions of employment where an agreement is already in effect. The prohibitions on unilateral changes set forth in these sections “are aimed at preventing changes in conditions previously fixed by collective bargaining agreements.”

55 F.3d at 93 (quoting Williams v. Jacksonville Terminal Co., 315 U.S. 386, 402-03, 62 S.Ct. 659, 669, 86 L.Ed. 914 (1942)) (emphasis added). Therefore, we concluded, “[w]here no agreement is in effect, these prohibitions have no application.” Id.

Section 5 First, 45 U.S.C. § 155 First, contains the second status quo provision, which requires a thirty-day cooling-off period following the close of NMB proceedings (unless the parties agree to arbitration, or a Presidential Emergency Board is created), during which time the parties must refrain from any self-help measures , and maintain the status quo.

The last status quo provision is contained in RLA Section 10, 45 U.S.C. § 160, and requires a continued freeze for thirty days following a report made by the Presidential Emergency Board to the President in situations where a Presidential Emergency Board is created.

Both Sections 5 and 10 are inapplicable here because the parties have not reached the negotiating stages under the RLA that would trigger these provisions. As noted, the mediation is ongoing.

Because none of the status quo provisions apply, our sole inquiry is limited to whether, in the absence of bad faith on the part of the Airline, the Union may engage in a strike, consistent with its obligation under Section 2 First to make “every reasonable effort” to reach agreement and to avoid interruption to “the operation of [the] carrier.” 45 U.S.C. § 152 First. We agree with the district court that a strike is inconsistent with the Union’s duty to negotiate in good faith under the RLA in the absence of a finding of bad faith on the part of the employer. Although the good faith bargaining provision also applies to the Airline, in AMFA I we held:

Under [Section 2 First], the carrier’s affirmative duty to exert every effort to make collective agreements — that is, to bargain in good faith — does not require that it refrain from exercising “its authority to arrange its business relations with its employees” where no collective bargaining agreement is in effect.

55 F.3d at 93 (quoting Williams, 315 U.S. at 402, 62 S.Ct. at 669).

The Union relies primarily on United Air Lines, Inc. v. Airline Div., Int’l Bhd. of Teamsters, 874 F.2d 110 (2d Cir.1989), and Detroit & Toledo. However, those eases are distinguishable.

United Air Lines involved a newly certified union where negotiations never commenced because the airline refused to recognize the union’s certification by the NMB. 874 F.2d at 112. The union retaliated by striking and engaging in primary and secondary picketing. Id. We vacated a preliminary injunction against secondary picketing issued by the district court. Id. at 115. Unlike the instant case, however, the carrier and the union never initiated the RLA’s mediation procedures, and the carrier rejected outright the union’s overtures to negotiate, thus “disobey[ing] the clear command of the [RLA].” Id. at 112-13, 115.

Detroit & Toledo is distinguishable because that ease involved an existing CBA. This fact was central to the Court’s statement:

When the union moves to bring such a previously uncovered condition within the agreement, it is absolutely essential that the status quo provisions of the Act apply to that working condition if the purpose of the Act is to be fulfilled. If the railroad is free at this stage to take advantage of the agreement’s silence and resort to self-help, the union cannot be expected to hold back its own economic weapons, including the strike. Only if both sides are equally restrained can the Act’s remedies work effectively.

396 U.S. at 155, 90 S.Ct. at 302. Detroit & Toledo concerned the question of what constituted the status quo in a railroad labor dispute where the railroad instituted an action against the union for an order restraining them from striking, and the union counterclaimed to prevent the railroad from violating the status quo provisions of the RLA by establishing new outlying work assignments. Id. at 146-47, 90 S.Ct. at 297-98. The actual working conditions under the CBA did not include such new outlying work assignments; nor did the CBA expressly prohibit the establishment of such assignments. Id. at 154-55, 90 S.Ct. at 301-02. In affirming the denial of preliminary injunctive relief against the union, the Court stated in dicta that “[i]t could hardly be expected that the union would sit idly by as the [carrier] rushed to accomplish the very result the union was seeking to prohibit by agreement.” Id. at 154, 90 S.Ct. at 301. The violation of the status quo was the controlling factor in that case. In Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1253 (2d Cir.1992), we narrowly interpreted the holding of Detroit & Toledo to permit the recognition of objective working conditions as the status quo, but only where there is already a CBA in place. Here, in the absence of a CBA, there is no such status quo.

The right to strike does not arise in the absence of employer bad faith. Here, the Airline did what the law permitted it to do. As we noted in AMFA I, 55 F.3d at 93, the Union has not alleged that the Airline bargained in bad faith, and the Union has continued to refrain from making such allegations. Obviously there has been no court finding of bad faith. Accordingly, the Union cannot legally strike.

Though we are sympathetic to the Union’s argument that it is in a relatively powerless position under the circumstances to effectively oppose or influence the Airline’s decision to make unilateral changes not prohibited by the RLA in the absence of a CBA, and in the absence of bad faith by the Airline, the concept of fairness alone will not permit the Union to do what it is statutorily prohibited from doing.

III. CONCLUSION

For the reasons stated above, we affirm the district court’s denial of the Union’s motion.