Reply Brief of Plaintiff-Appellant United Air Lines, Inc.apps.americanbar.org/labor/rwcomm/mw/papers/2001/siegelreply.pdf · Pan Am. World Airways v. ... United Air Lines v. ... v

© 2001 American Bar Association http://www.bnabooks.com/ababna/railway/2001/siegelreply.doc

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

_________________________

Case No. 00-4220 _____________________

UNITED AIR LINES, INC.,

Plaintiff-Appellant,

v.

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, et al.,

Defendants-Appellees. ______________________

On Appeal from the United States District Court

For the Northern District of Illinois Case No. 00 C 7265 (Hibbler, J.)

_______________________

REPLY BRIEF OF PLAINTIFF-APPELLANT UNITED AIR LINES, INC.

MICHELE L. ODORIZZI ROBERT A. SIEGEL ANDREW S. MAROVITZ O’MELVENY & MYERS LLP MAYER, BROWN & PLATT 400 South Hope Street 190 South LaSalle Street Suite 1500 Chicago, IL 60603-3441 Los Angeles, California 90071-2899

TOM A. JERMAN O’MELVENY & MYERS LLP 555 13th Street, N.W. Suite 500 West Washington, D.C. 20004-1109

Attorneys for Plaintiff-Appellant United Air Lines, Inc.

TABLE OF CONTENTS

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PRELIMINARY STATEMENT ..............................................................................1

ARGUMENT ............................................................................................................5

I. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN FAILING TO ISSUE A PRELIMINARY INJUNCTION OBLIGATING THE IAM TO TAKE ALL POSSIBLE STEPS TO STOP THE JOB ACTION BY UNITED’S MECHANICS AND RESTORE NORMAL OPERATIONS ..........................................................5

A. As The Eleventh Circuit Recently Held, Section 2, First Of The RLA Imposes An Affirmative Obligation On Unions To “Exert Every Reasonable Effort” To Maintain The Status Quo During Collective Bargaining Negotiations......................................................5

B. The “Clear Proof” Requirements Of The NLGA Do Not Apply To An Injunction Compelling A Union To Comply With Its Obligations Under Section 2, First of the RLA ....................................8

II. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN REFUSING TO ISSUE A PRELIMINARY INJUNCTION ON THE GROUND THAT TERMINATING EMPLOYEES WAS “MORE EFFECTIVE”............................................................................................... 10 A. The RLA Does Not Require, Or Even Permit, A Court To

Determine Whether An Injunction Is The “Most Effective” Means To Enforce The Obligation To Maintain The Status Quo Before Issuing A Preliminary Injunction........................................... 10

B. The General Equitable Principle That A Court May Decline To Issue An Injunction Which Would Not Be Effective Has No Application Here................................................................................ 16

C. The Record Here Established That Contrary To The IAM’s Arguments And The District Court’s Ruling, An Injunction Was Necessary To Maintain The Status Quo ............................................ 17

D. The Fact That Mechanics Have Safety-Sensitive Positions Does Not Preclude Injunctive Relief Against A Status Quo Violation ...... 21

TABLE OF CONTENTS (continued)

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III. THE RECORD ESTABLISHES BEYOND DISPUTE THAT THE IAM BOTH AUTHORIZED AND RATIFIED THE SLOWDOWN CAMPAIGN AND DID NOT TAKE ALL POSSIBLE STEPS TO STOP IT ....................................................................................................... 22

A. The District Court Did Not Make Any Finding Regarding IAM Authorization Or Ratification Of The Slowdown ............................. 22

B. The Evidence Establishes Beyond Dispute That The IAM Did Authorize And Ratify The Slowdown ............................................... 24

C. The Evidence Establishes Beyond Dispute That The IAM Did Not Take All Reasonable Steps To Stop The Slowdown.................. 26

IV. THE IAM’S ARGUMENT THAT UNITED FAILED TO NEGOTIATE WITH THE IAM TO RESOLVE THE DISPUTE PRIOR TO SEEKING JUDICIAL INTERVENTION IS WITHOUT MERIT ......................................................................................................... 27

CONCLUSION...................................................................................................... 29

TABLE OF AUTHORITIES

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CASES Air Line Pilots Ass’n, Int’l v. United Air Lines, Inc.,

802 F.2d 886 (7th Cir. 1986) ............................................................................ 10 Allee v. Medrano,

416 U.S. 802 (1974).......................................................................................... 17 Bergen v. Bergen,

439 F.2d 1008 (3d Cir. 1971) ...................................................................... 22-23 Bhd. of R.R. Trainmen v. Chi. R. & I. R. Co.,

353 U.S. 30 (1957)...............................................................................................9 Bhd. of R.R. Trainmen v. Howard,

343 U.S. 768 (1952).............................................................................................9 Bhd. of R.R. Trainmen v. Toledo, P.&W. R.R.,

321 U.S. 50 (1944)....................................................................................... 27-28 Charles D. Bonanno Linen Serv., Inc. v. McCarthy,

532 F.2d 189 (1st Cir. 1976).......................................................................... 9-10 Chi. & N.W. Ry. Co. v. United Transp. Union,

402 U.S. 570 (1971)................................................................................. 9, 11-12 Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n,

491 U.S. 299 (1989)..................................................................................... 12-13 Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l,

123 F. Supp. 2d 1356 (N.D. Ga. 2000)................................................................6 Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l,

2001 WL 42399 (11th Cir. Jan. 18, 2001)...................................... 2, 6-9, 12, 15 Detroit & T.S.L. R.R. Co. v. United Transp. Union,

396 U.S. 142 (1969)................................................................................. 3, 12-13 Granny Goose Foods Inc. v. Bhd. of Teamsters

& Auto Truck Drivers Local No. 70, 415 U.S. 423 (1974).......................................................................................... 22

Int’l Ass’n of Machinists v. Street, 367 U.S. 740 (1961).................................................................................... 11-12

TABLE OF AUTHORITIES (continued)

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Long Island R.R. Co. v. Sys. Fed’n No. 156, 368 F.2d 50 (2d Cir. 1966) ............................................................................... 21

Mayo v. Dean, 82 F.2d 554 (5th Cir. 1936) .............................................................................. 10

NAACP v. Clairborne Hardware Co., 458 U.S. 886 (1982).............................................................................................6

Nat’l Airlines, Inc. v. Int’l Ass’n of Machinists, 416 F.2d 998 (5th Cir. 1969) ................................................................... 5, 14-15

Nat’l R.R. Passenger Corp. v. Bhd. of Locomotive Eng’rs, 113 Lab. Cas. (CCH) ¶ 11766 (D.D.C. 1989) .................................................. 21

Pan Am. World Airways v. Flight Eng’rs Int’l Ass’n, 306 F.2d 840 (2d Cir. 1962) ............................................................................. 22

Pan Am. World Airways v. Transp. Workers Union, 117 L.R.R. M (BNA) 3350 (E.D.N.Y. 1989) ................................................... 21

Pittsburgh & L.E. R.R. Co. v. Ry. Labor Executives’ Ass’n, 491 U.S. 490 (1989).............................................................................................9

Rutland Ry. Corp. v. Bhd. of Locomotive Eng’rs, 307 F.2d 21 (2d Cir. 1962) ............................................................................... 28

Tex. Int’l Airlines, Inc. v. Air Line Pilots Ass’n Int’l, 518 F. Supp. 203 (S.D. Tex. 1981)................................................................... 21

Trans World Airlines v. Int’l Ass’n of Machinists, 75 Lab. Cas. (CCH) ¶ 10,312 (W.D. Mo. 1974) .............................................. 21

United Air Lines v. Int’l Ass’n of Machinists, 54 LR.R.M. (BNA) 2154 (N.D. Ill. 1963)........................................................ 14 United Bhd. of Carpenters v. United States,

330 U.S. 395 (1947).............................................................................................9 Virginian Ry. Co. v. Sys. Fed’n No. 40,

300 U.S. 515 (1937).......................................................................................... 16

TABLE OF AUTHORITIES (continued)

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STATUTES 29 U.S.C. § 101.........................................................................................................2 29 U.S.C. § 106.................................................................................................... 2, 8 29 U.S.C. § 108...................................................................................................... 10 45 U.S.C. § 151.........................................................................................................1 45 U.S.C. § 155...................................................................................................... 28

1 © 2001 American Bar Association http://www.bnabooks.com/ababna/railway/2001/siegelreply.doc

PRELIMINARY STATEMENT

In its Opening Brief, appellant United Air Lines, Inc. (“United”)

demonstrated that Section 2, First of the Railway Labor Act, 45 U.S.C. § 151, et

seq. (the “RLA”) imposed an affirmative legal obligation on appellee International

Association of Machinists and Aerospace Workers (“IAM”), as the certified

representative of United’s mechanics, to “exert every reasonable effort” to avoid

any alteration of the status quo during collective bargaining negotiations,

regardless of whether the IAM authorized or ratified the job action. Thus, upon

finding that United’s mechanics were engaged in an unlawful job action, the

district court was obligated to issue a preliminary injunction compelling the IAM

to fulfill its statutory obligation; the district court’s conclusion that United should

instead handle the problem through discipline and discharge was an abuse of

discretion. United also demonstrated that even if proof of union authorization or

ratification of the job action was required to obtain a preliminary injunction, the

evidence in this case overwhelmingly established the IAM’s encouragement of the

job action.

Shortly after United’s Opening Brief was filed, the Eleventh Circuit adopted

the position urged by United, holding that Section 2, First of the RLA creates an

affirmative legal obligation on unions to do “everything possible” to stop a job

action, even if the union did not start or encourage the action, “so that commerce is


not in any way interrupted.” Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l,

No. 00-16472, 2001 WL 42399, *6 (11th Cir. Jan. 18, 2001). In that case, the trial

court found that Delta’s pilots were engaged in an unlawful concerted refusal to

work overtime, but declined to issue a preliminary injunction because it concluded

that the pilots’ bargaining representative, the Air Line Pilots Association

(“ALPA”), did not authorize and had discouraged the job action. Reversing, the

Eleventh Circuit held that “the district court, on remand, should enjoin ALPA to

take specific steps aimed at stopping the pilots’ no-overtime campaign and

resuming normal operations of Delta’s operations.” Id. at *8.

In its Opposition Brief, the IAM does not even address the Delta decision

except to state, in a footnote, that United “may” rely on the decision. Opposition

Brief at 56 n.36. Instead, the IAM argues that (1) injunctions are allowed under

the Norris LaGuardia Act, 29 U.S.C. § 101 et seq. (the “NLGA”) only where they

are the “sole practical, effective means” to enforce the RLA, and that in the present

case the district court correctly concluded an injunction “would not be effective;”

(2) the district court had no jurisdiction to issue an injunction under Section 6 of

the NLGA, 29 U.S.C. § 106, because there was no “clear and convincing

evidence” that the IAM “was responsible for any inappropriate conduct;” and (3)

injunctive relief should be denied because United failed to “negotiate” with the


IAM to stop the job action before filing suit. As demonstrated below, none of

these arguments has merit.

First, the IAM’s arguments were expressly rejected in the Delta case. Under

the Eleventh Circuit’s analysis, the IAM had an affirmative legal obligation to take

all possible steps to stop the work slowdown, regardless of who started it or

whether the union (or the district court) believed those steps would be effective.

Applying the Eleventh Circuit’s analysis here, the district court plainly erred in

refusing to issue a preliminary injunction.

Second, the IAM’s assertion that the district court properly denied an

injunction because it believed terminating employees would be “more effective” is

both legally and factually incorrect. None of the cases cited by the IAM stand for

the proposition that a court should determine whether an injunction will be

“effective” before issuing it, much less permit a court to deny a status quo

injunction on the basis that the carrier should fire the employees instead. Such a

ruling is fundamentally inconsistent with the RLA’s goal of maintaining the

“actual, objective working conditions and practices, broadly conceived,” which

were in effect when the parties began negotiations. Detroit & T.S.L. R.R. Co. v.

United Transp. Union, 396 U.S. 142, 149-53 (1969). Moreover, the IAM’s

assertions that the work slowdown was promoted by dissident mechanics over

which the IAM has no control and that United could have “managed” the problem


by discharging and disciplining mechanics, is utterly disingenuous because the

IAM is currently suing United alleging that it “impos[ed] excessively severe and

unwarranted discipline upon [more than 100] employees,” and that “these

precipitous wholesale threatening and unlawful actions by the Company are being

taken by it to weaken the Union's support at and away from the bargaining table,

and in retaliation for the Company's dissatisfaction with the Union's negotiating

position.” Nov. 17, 2000 Complaint at 4, Int’l Ass’n of Machinists v. United Air

Lines, Inc., Case No. 00C7277 (N.D. Ill. 2000) (hereinafter “Nov. 17, 2000

Complaint”).

Third, the IAM’s claim that it did not authorize or ratify the slowdown does

not withstand the blush test. Although the district court did not make any factual

findings on the subject or issue a written opinion, the evidence overwhelmingly

established the IAM’s authorization and ratification of the work slowdown. While

the IAM claims that it used phrases like “SAFETY FIRST” in negotiation updates

because it was concerned about employee safety, the unmistakable meaning of

those publications was that mechanics should “WORK SAFE” because United had

not shown sufficient progress in negotiations. Moreover, the IAM does not even

attempt to offer any explanation for why its local lodges sent simultaneous,

identical bulletins in late October 2000 urging mechanics to engage in such

obvious slowdown tactics as cleaning their tools and tool boxes every day.


Finally, the IAM’s argument that, before seeking judicial relief, United

should have negotiated with the IAM over discontinuance of a work slowdown

whose existence the IAM denies is unsupported by any legal authority and contrary

to common sense.

ARGUMENT

I. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN FAILING TO ISSUE A PRELIMINARY INJUNCTION OBLIGATING THE IAM TO TAKE ALL POSSIBLE STEPS TO STOP THE JOB ACTION BY UNITED’S MECHANICS AND RESTORE NORMAL OPERATIONS

A. As The Eleventh Circuit Recently Held, Section 2, First Of The RLA Imposes An Affirmative Obligation On Unions To “Exert Every Reasonable Effort” To Maintain The Status Quo During Collective Bargaining Negotiations

In its Opening Brief, United argued that under Section 2, First of the RLA

both the IAM and its members have an affirmative legal obligation to maintain the

carrier’s normal operations during negotiations, and that a preliminary injunction

was appropriate whether or not the IAM itself authorized or encouraged the

slowdown. In its Opposition Brief, the IAM reiterates its position that no

injunction can issue without proof that the IAM authorized or ratified the

slowdown, arguing that the case upon which United relied, National Airlines, Inc.

v. International Ass’n of Machinists, 416 F.2d 998 (5th Cir. 1969), “is the only


case that United can cite for this proposition.” Opposition Brief at 54 (emphasis in

original).1

In fact, on January 18, 2001, the Eleventh Circuit, in Delta Air Lines, Inc., v.

Air Line Pilots Ass’n, International, No. 00-16472, 2001 WL 42399 (11th Cir.

2001), held that a union has an affirmative legal oligation to “exert every

reasonable effort” to suppress a violation of the status quo by its members, whether

or not the union authorized or ratified the job action. In Delta, the carrier sought a

preliminary injunction against ALPA, alleging that Delta’s pilots were engaged in

an unlawful concerted refusal to work overtime. 123 F. Supp. 2d 1356, 1357 (N.D.

Ga. 2000). The district court had found that Delta’s pilots were engaged in a

concerted refusal to work overtime but denied Delta’s motion for a preliminary

injunction, concluding that there was insufficient evidence to connect ALPA to the

unlawful job action. The carrier appealed, arguing that an injunction was proper

regardless of whether ALPA sponsored the refusal to work overtime because,

1 The IAM also argues that holding a union responsible for the unauthorized actions of its members violates the due process clause of the U.S. Constitution as interpreted in NAACP v. Clairborne Hardware Co., 458 U.S. 886, 931 (1982). That case, which held that the NAACP could not constitutionally be held liable for the unauthorized acts of its members, is inapposite because United is not seeking to hold the IAM “liable” for the unauthorized actions of its members. Rather, United is asking the district court to order the IAM to fulfill its own statutory obligation under Section 2, First of the RLA.


under the RLA, there is an absolute statutory obligation for a union to do

everything reasonably within its power to prevent such a disruption.

The Eleventh Circuit agreed with the carrier, reversing and remanding the

matter to the district court with instructions to issue an appropriate injunction. The

court stated:

The district court erred in failing to appreciate the depth and seriousness of the duty to “make and maintain agreements” in a way so as “to avoid any interruption to commerce or to the operation of any carrier.” 45 U.S.C. § 152 First. . . . The district court’s error came in its decision that it would “not hold that a union has an affirmative duty to end or prevent the unilateral unlawful activity of its members.” The RLA imposes such a duty on the union in section 152 First, and the district court should have enforced that duty. . . . ALPA is statutorily bound to do everything possible to “maintain” the CBA so that commerce is not in any way interrupted. We are not satisfied that ALPA has fulfilled this duty. Therefore, the district court, on remand, should enjoin ALPA to take specific steps aimed at stopping the pilots’ no-overtime campaign and resuming normal operations of Delta’s operations, including its overtime scheduling.

Delta, 2001 WL 42399 at *8. In reaching this conclusion, the Eleventh Circuit relied on exactly the same

case law and reasoning set forth at pages 33-36 of United’s Opening Brief. For the

reasons stated there, the Delta decision was plainly correct, and this Court should

adopt its conclusions. Under the Eleventh Circuit’s analysis, even if the IAM’s

contention that it had nothing to do with the job action was accurate – and, as

shown below, the evidence is overwhelming that the IAM in fact authorized and


ratified the slowdown – the district court clearly erred in denying United’s request

for a preliminary injunction. United, like Delta, proved that its employees were

engaged in an unlawful job action. The IAM, like ALPA, claimed that it did not

start and cannot stop the job action. The district judges in both cases appear to

have accepted the unions’ assertions that they could not control the actions of their

members. Nevertheless, under the rationale of the Delta decision, United was

entitled to a preliminary injunction requiring the IAM to fulfill its statutory

obligation to do “everything possible” to ensure that United’s operations are not

disrupted, and the district court erred in failing to issue such an injunction.

B. The “Clear Proof” Requirements Of The NLGA Do Not Apply To An Injunction Compelling A Union To Comply With Its Obligations Under Section 2, First of the RLA

The IAM also argues that Section 6 of the NLGA, 29 U.S.C. § 106, which

prohibits the federal courts from holding a union or its officers “responsible or

liable” for the acts of union members absent “clear proof of actual participation in,

or actual authorization of, such acts, or of ratification of such acts after actual

knowledge thereof,” bars any injunction against the IAM. This argument is

without merit for several reasons.

First, as demonstrated in United’s Opening Brief and as addressed further in

Section III below, the record establishes beyond dispute that the IAM authorized


and ratified the slowdown campaign. Thus, the entire factual predicate of the

IAM’s argument is faulty.

Second, as the Eleventh Circuit held in the Delta case, it is well established

that the more specific provisions of the RLA take precedence over the more

general provisions of the NLGA: “It is clear that the substantive legal duty of 45

U.S.C. § 152 First, is a ‘specific provision’ of the RLA and, moreover, is central to

the purpose and functioning of the RLA. Therefore, the provision takes

precedence over the more general provisions of the NLGA.” Delta, 2001 WL

42399 at *4 (citing Pittsburgh & L.E. R.R. Co. v. Ry. Labor Executives’ Ass’n,

491 U.S. 490, 513 (1989); Chi. & N.W. Ry. Co. v. United Transp. Union, 402 U.S.

570, 581-82 (1971); Bhd. of R.R. Trainmen v. Chi. R. & I. R. Co., 353 U.S. 30

(1957); and Bhd. of R.R. Trainmen v. Howard, 343 U.S. 768, 774 (1952)).

Third, Section 6 of the NLGA does not apply to actions for injunctions in

any event. The purpose of Section 6, as the Supreme Court noted in United

Brotherhood of Carpenters v. United States, 330 U.S. 395, 403 (1947), is to relieve

unions “from liability for damages or imputation of guilt” for the unauthorized acts

of individual officers or members. Thus, as the First Circuit held in Charles D.

Bonanno Linen Service, Inc. v. McCarthy, 532 F.2d 189 (1st Cir. 1976), “it is

readily apparent that § 106 applies only (by its own terms) to liability for damages


or criminal responsibility,” and not to requests for injunctive relief.2 Id. at 191; see

also Mayo v. Dean, 82 F.2d 554, 556 (5th Cir. 1936) (Section 6 “might prevent

punishment for contempt or the recovery of damages, but clearly was not intended

to apply to the issuance of an injunction to prevent future acts of coercion in a case

where such relief would be proper”).

II. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN REFUSING TO ISSUE A PRELIMINARY INJUNCTION ON THE GROUND THAT TERMINATING EMPLOYEES WAS “MORE EFFECTIVE”

A. The RLA Does Not Require, Or Even Permit, A Court To Determine Whether An Injunction Is The “Most Effective” Means To Enforce The Obligation To Maintain The Status Quo Before Issuing A Preliminary Injunction

In its Opening Brief, United argued that the district court abused its

discretion by denying United’s motion for preliminary injunction on the ground

that the court thought it would be “more effective” to terminate employees. In its

Opposition Brief, the IAM argues that the NLGA prohibits issuance of an

injunction unless it is “the only practical, effective means” of enforcing the

2 For this reason, the IAM’s reliance on Air Line Pilots Association, International v. United Air Lines, Inc., 802 F.2d 886 (7th Cir. 1986), is misplaced. The Seventh Circuit held that Section 8 of the NLGA, 29 U.S.C. § 108, the “clean hands” provision, did not prohibit a union from obtaining injunctive relief against the carrier’s violation of the RLA because its members had engaged in an allegedly unauthorized sick out. Thus, this case demonstrates only that a union cannot be held “responsible” for the unauthorized acts of its members, and in no way bars a court from ordering the union or its members to fulfill their own statutory obligations under Section 2, First of the RLA.


plaintiff’s rights under the RLA, citing Chicago & N.W. Railway Co. v. United

Transportation Union, 402 U.S. 570 (1971) and International Ass’n of Machinists

v. Street, 367 U.S. 740 (1961). From this phrase, the IAM deduces that the courts

should not issue injunctions under the RLA unless they will be “effective.” As

shown below, there is no support whatsoever for the IAM’s novel position.

The cases cited by the IAM are but two examples of a series of Supreme

Court decisions, cited above in United’s discussion of the Delta case, in which the

Court has attempted to reconcile the conflicting goals of the NLGA and the RLA.

In those cases, the Court has consistently held that where the RLA creates a

specific right or obligation, the more specific provisions of the RLA supercede the

NLGA’s general prohibition on labor injunctions.3 The Street and Chicago &

3 The Street decision was a duty of fair representation case brought

against the IAM by employees who objected to the union’s use of dues for purposes other than collective bargaining. In rejecting plaintiffs’ request for a “blanket injunction” against collection of any dues from objecting employees, the Supreme Court said that “the courts should hesitate to fix upon the injunctive remedy for breaches of duty unless that remedy alone can effectively guard the plaintiff's right.” 367 U.S. at 773. Concerned that “[t]he complete shutoff of this source of income defeats the congressional plan to have all employees benefited share [the costs of bargaining] and threatens the basic congressional policy of the Railway Labor Act for self-adjustments between effective carrier organizations and effective labor organizations,” 367 U.S. at 772, the Court instead authorized a more narrowly tailored injunction against collection of dues for non-bargaining purposes.

The Chicago & N.W. decision involved a request for an injunction against an otherwise lawful strike on the basis that the union had violated its obligation under Section 2, First to bargain in good faith. Rejecting the union’s contention that Section 2, First was “a mere statement of policy or exhortation to the parties,”


N.W. decisions are simply applications of that general rule. In balancing the

NLGA and RLA, the Supreme Court in both cases affirmed the propriety of

injunctive relief for violations of the RLA, and to the extent the Court urged

caution in issuing injunctions it was because the plaintiffs sought to enjoin

otherwise lawful conduct as a remedy for a violation of the RLA. That concern has

no application where, as here, the plaintiff seeks to enjoin blatantly unlawful

conduct. Moreover, neither case even arguably stands for the proposition that

courts should decline to issue injunctions unless the injunctions are likely to be

“effective” in the sense that the IAM uses the term in its Opposition Brief.

In the present circumstances, the federal courts have consistently concluded

that injunctions are the “sole practical, effective means” for enforcing the duty

under Section 2, First to negotiate agreements without interruption to commerce or

the carrier’s operations. Delta, 2001 WL 42399 at *4. The entire structure of the

RLA is dependent upon judicial preservation of the status quo during bargaining.

See Detroit & T.S.L. R.R. Co. v. United Transp. Union, 396 U.S. 142, 149-51

(1969) (“Shore Line”) (status quo provisions of the RLA are “central to its

design”); Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 303-04

the Court held that “[s]trike injunctions may issue when such a remedy is the only practical, effective means of enforcing the duty to exert every reasonable effort to make and maintain agreements” under Section 2, First. 402 U.S. at 583. The Court remanded for a determination of whether an injunction was appropriate in that case.


(1989) (status quo injunctions should issue under the RLA without the usual

requirement of irreparable injury). Indeed, the IAM does not cite a single decision

in which a court has refused an injunction after finding an unlawful alteration of

the status quo.

The purpose of the status quo obligation under the RLA is that by

compelling the parties to maintain the “actual, objective working conditions and

practices, broadly conceived” that were in effect when the negotiations began

throughout the lengthy bargaining process under the statute, the RLA prevents

interruptions to commerce, encourages the parties to make concessions, and avoids

potential escalation of the labor dispute that inevitably arises if the parties invoke

self-help. Shore Line, 396 U.S. at 149-51. Obviously, telling a carrier to deal with

its employees’ unlawful interruption of the carrier’s operations by taking matters

into its own hands, thereby risking further escalation of the dispute and further

interruptions to commerce, is the antithesis of the “status quo” as defined in the

Shore Line decision.

Not only is forcing a carrier to terminate employees inconsistent with the

policies underlying the RLA, it is a completely unsatisfactory “remedy” from the

carrier’s perspective. There are significant practical problems inherent in

terminating employees for engaging in a work slowdown, including the difficultly

in proving that any given individual has engaged in a slowdown, the risk of


potential back-pay liability if the termination is not upheld in arbitration, the need

to operate short-handed, and the fact that such terminations frequently work only to

create “martyrs” and encourage other employees to join the action. Moreover,

terminating individual employees for acts of misconduct does not address the

underlying violation of the RLA, which is unlawful concerted action by the

carrier’s employees. See, e.g., United Air Lines v. Int’l Ass’n of Machinists, 54

LR.R.M. (BNA) 2154, 2156 (N.D. Ill. 1963) (enjoining concerted action as a RLA

violation).

In response to United’s argument that forcing a carrier to terminate

employees to avoid disruptions to its operations does not remedy the alteration of

the status quo, but only creates a different alteration of the status quo, the IAM

asserts that “[t]his is quite an incredible contention” because if termination of

employees constitutes an alteration of the status quo under the RLA, United itself

violated its status quo obligation by doing so. This glib argument, however, does

not buttress the IAM’s position at all because the courts have on occasion viewed

the carrier’s discharge of employees as a violation of the status quo and the IAM

itself has asserted in a separate lawsuit that United’s counseling and disciplining of

United mechanics in the current situation violated the RLA.

For example, in National Airlines, Inc. v. International Ass’n of Machinists,

416 F.2d 998 (5th Cir. 1969), the Fifth Circuit enjoined the mass termination of


employees engaged in a wildcat strike. “Resort to the courts is generally

preferable to this kind of self help,” the Fifth Circuit stated, because “allow[ing]

the carrier to discharge all employees who strike in violation of the Railway Labor

Act would undermine the Act’s emphasis on the continuance of the employer’s

operations and the employer-employee relationship.”4 Id. at 1004-05. While

United believes that National has no application to termination of employees

engaged in misconduct, including a work slowdown, the fact that there is any

doubt at all about the carrier’s right to terminate employees under these

circumstances makes the district court’s decision all the more problematic.

Finally, the IAM’s assertion that United should have disciplined more

employees is disingenuous because the IAM has not only consistently grieved

United’s attempts to counsel or discipline mechanics engaged in slowdown

activity, Declaration of Frank Krasovec (Dec. 13, 2000, Docket No. 71)

(“Krasovec Decl.”) ¶ 5(c), Nov. 16, 2000, Affidavit of William Norman (“First

Norman Aff.”), Exhibit 9 (Separate Appendix of Plaintiff-Appellant United Air

Lines, Inc. (“United App.”) at A35), but is currently pursuing a separate lawsuit

against United on the ground that United’s counseling and disciplining of

employees for engaging in slowdown activity violates the RLA. Nov. 17, 2000

4 The Eleventh Circuit in Delta appears to adopt the National decision on this point, stating that “the RLA would not have permitted the airline’s self-help [in National] without judicial intervention.” 2001 WL 42399 at *6.


Complaint at 4. In that complaint, which the IAM continues to pursue, the IAM

alleged that United has “impos[ed] excessively severe and unwarranted discipline

upon employees” and “has in the past month issued in excess of 100 written

disciplinary warnings to employees represented by the Union.” Id.

Plainly, the IAM cannot have it both ways. If a carrier must discipline or

terminate employees engaged in a job action, that discipline or termination cannot

violate either the collective bargaining agreement or the RLA. If such discipline or

termination may violate the collective bargaining agreement or the RLA, then

surely it cannot be a substitute for judicial enforcement of the status quo

obligation.

B. The General Equitable Principle That A Court May Decline To Issue An Injunction Which Would Not Be Effective Has No Application Here

In its Opposition Brief, the IAM also argues that under general principles of

equity, a court may decline to issue an injunction “when it is apparent that which it

can give will not be effective or of benefit to the plaintiff.” Virginian Ry. Co. v.

Sys. Fed’n No. 40, 300 U.S. 515, 550-51 (1937); Opposition Brief at 41. This

principle, however, has no application here for a variety of reasons.

First, the district court did not determine that an injunction would be useless;

it simply concluded that terminating employees would be “more effective” than an

injunction. The IAM cannot mean that it would refuse to comply with the court’s


commands to take all reasonable steps necessary to restore United’s normal

operations; thus, the injunction would not be “useless” even if not all of United’s

mechanics complied with the IAM’s directives. Second, the fact that the IAM

ultimately changed its behavior in response to the TRO and threat of contempt

sanctions, and that the slowdown subsequently declined (although not to status quo

levels), disproves any claim that a court order would not be effective. Finally,

although there was some improvement in United’s operations after the IAM made

serious efforts to discourage the job action in light of United’s motion for contempt

sanctions, that fact does not make United’s claims moot. The parties’ negotiations

are ongoing, and without a preliminary injunction the IAM can turn up the heat at

any time. “It is settled that an action for an injunction does not become moot

merely because the conduct complained of has terminated, if there is a possibility

of recurrence, since otherwise the defendants ‘would be free to return to (their) old

ways.’” Allee v. Medrano, 416 U.S. 802, 810 (1974) (citation omitted).

C. The Record Here Established That Contrary To The IAM’s Arguments And The District Court’s Ruling, An Injunction Was Necessary To Maintain The Status Quo

In its Opposition Brief, the IAM devotes substantial space to a factual

defense of the district court’s conclusion that a preliminary injunction would not

have been “effective” because United could have “managed” the job action by

counseling employees, imposing mandatory overtime, disciplining employees, and


attempting to obtain the IAM’s cooperation in stopping the job action. Not only is

the IAM wrong on the law, it is wrong on the facts as well.

Contrary to the IAM’s claims, United used most of the alternative means

suggested by the IAM before it sought judicial relief.5 Those actions, however,

were unsuccessful in forestalling the dramatic escalation of the slowdown

campaign during the first two weeks of November 2000 that prompted United to

seek judicial relief.

• United attempted to discuss the issues directly with its maintenance

personnel and propose solutions when it initially became aware of the

slowdown. First Norman Aff. ¶ 35 (United App. at A14). Moreover,

on July 17, 2000, United’s Senior Vice President of Maintenance

Operations Ron Utecht sent a letter to all maintenance personnel

stating that United had experienced a significant increase in

maintenance cancellations and delays since July 12, 2000, and asking

the mechanics to resume normal operations. Id., Exhibit 27 (United

App. at A72-73).

5 The IAM is correct that United did not file a contractual grievance against the IAM seeking arbitration before the United-IAM System Board of Adjustment. United, however, is not alleging a violation of the collective bargaining agreement but a violation of the RLA itself. A grievance could not have vindicated United’s rights under the RLA because the System Board has no authority to enforce Section 2, First of the RLA.


• United counseled, disciplined or terminated hundreds of mechanics it

was able to identify as engaging in a slowdown – not simply the

handful the IAM claims. Id. ¶ 37, Exhibit 28 (United App. at A15,

A74-75); Second Declaration of Fred Mohr (December 13, 2000,

Docket No. 75) ¶ 3; Declaration of Michael McGinley (Dec. 11, 2000,

Docket No. 44) ¶ 8; Krasovec Decl. ¶ 8. The IAM’s argument on this

point is particularly disingenuous because, as noted above, the IAM

has sued United claiming that it “impos[ed] excessively severe and

unwarranted discipline upon employees,” that United “has in the past

month issued in excess of 100 written disciplinary warnings to

employees represented by the Union,” and that “these precipitous

wholesale threatening and unlawful actions by the Company are being

taken by it to weaken the Union's support at and away from the

bargaining table, and in retaliation for the Company's dissatisfaction

with the Union's negotiating position.” Nov. 17, 2000 Complaint at 4.

• United imposed mandatory overtime where it was needed and

contractually permissible. Krasovec Decl. ¶ 5(d)(ii). Mandatory

overtime, however, was not a satisfactory solution for the concerted

refusal of mechanics to accept voluntary overtime because mandatory

overtime must be assigned to the most junior (and least experienced)


mechanics whereas voluntary overtime goes to the most senior (and

more experienced) mechanics. Moreover, at the same time that the

IAM is telling this Court that United should have used more

mandatory overtime, the IAM’s pending lawsuit contends that United

violated the RLA by “requiring employees to report as a routine

matter for mandatory overtime on paid of discipline,” which the IAM

claims is “punitive, coercive, and retaliatory.” Nov. 17, 2000

Complaint at 5.

• United attempted to resolve this matter with the IAM but was

unsuccessful. On November 10, 2000, following several

conversations between United and IAM officials, United’s Chief

Operating Officer Andy Studdert made a formal written request to the

IAM that it put “an immediate end to work to rule directives, and

[take] any other steps necessary to secure an immediate end to this

disruptive behavior.” First Norman Aff. ¶ 38, Exhibit 29 (United

App. at A15, A76-78). The absurdity of the IAM’s argument that

United did not make adequate efforts to resolve the dispute with the

IAM is demonstrated by the vitriolic response of IAM District Lodge

141M Scotty Ford. In his letter of November 14, 2000, Ford

vehemently denied that any job action was underway (even though the


IAM now freely admits that it knew mechanics were engaged in a

slowdown), asserted that “United Airlines will never act as a censor of

IAM communications,” and then sent his response, along with

Studdert’s letter, to all of United’s mechanics. Id. ¶ 39, Exhibit 30

(United App. at A15, A79-81).

D. The Fact That Mechanics Have Safety-Sensitive Positions Does Not Preclude Injunctive Relief Against A Status Quo Violation

The IAM contends that any injunctive relief was inappropriate because of

the “safety sensitive” nature of a mechanic’s job, arguing that in light of FAA rules

and regulations any injunction would be “confusing” and “dangerous.”

The IAM is wrong that courts cannot enjoin an illegal slowdown by a

carrier’s employees where the employees have implemented the slowdown under

the guise of safety. Courts have consistently enjoined such job actions as unlawful.

E.g., Long Island R.R. Co. v. Sys. Fed’n No. 156, 368 F.2d 50, 52 (2d Cir. 1966);

Trans World Airlines v. Int’l Ass’n of Machinists, 75 Lab. Cas. (CCH) ¶ 10,312

(W.D. Mo. 1974); Tex. Int’l Airlines, Inc. v. Air Line Pilots Ass’n Int’l, 518 F.

Supp. 203 (S.D. Tex. 1981); Pan Am. World Airways v. Transp. Workers Union,

117 L.R.R.M. (BNA) 3350, 3351 (E.D.N.Y. 1984); Nat’l R.R. Passenger Corp. v.

Bhd. of Locomotive Eng’rs, 113 Lab. Cas. (CCH) ¶ 11766 (D.D.C. 1989). Any

other ruling would give both mechanics and pilots carte blanche to engage in a

slowdown campaign.


Moreover, the IAM has not identified any specific parts of the TRO issued

by the district court or the preliminary injunction proffered by United that create

any realistic chance of confusion. The injunction simply ordered United’s

mechanics to refrain from any slowdown and to resume “normal operations.” The

IAM cannot seriously claim that such an order raises safety concerns.

III. THE RECORD ESTABLISHES BEYOND DISPUTE THAT THE IAM BOTH AUTHORIZED AND RATIFIED THE SLOWDOWN CAMPAIGN AND DID NOT TAKE ALL POSSIBLE STEPS TO STOP IT

A. The District Court Did Not Make Any Finding Regarding IAM Authorization Or Ratification Of The Slowdown

In its Opening Brief, United argued that although the district court did not

make any findings on the issue, the evidence overwhelmingly established the

IAM’s authorization and ratification of the work slowdown. The IAM disputes

United’s assertion that the district court failed to make any findings on the issue,

contending that although the TRO recites that United was likely to succeed on its

claims that the IAM had authorized the job action,6 “the district court revised its

view after it considered appellees' evidence.” Opposition Brief at 59.

6 The IAM argues that the district court’s findings of illegal slowdown activity in the TRO are entitled to no weight. The cases it cites, however, do not support this proposition. Granny Goose Foods Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423 (1974), and Pan American World Airways v. Flight Engineers International Ass’n, 306 F.2d 840 (2d Cir. 1962), address the duration of a TRO and say nothing about the evidentiary weight given to the findings leading up to the issuance of a TRO. Bergen v. Bergen, 439 F.2d


The IAM’s argument, however, is based solely on a comment by the district

judge during a December 7, 2000, hearing on the IAM’s motion to vacate the TRO

– a week before the December 13, 2000, hearing on United’s motion for

preliminary injunction. On December 7, 2000, the court did not even have

United’s evidence in support of its motion for preliminary injunction, which was

not filed until December 11, 2000. Thus, any claim that the court changed its mind

after reviewing the evidence is baseless.

In any event, the court’s comment does not support the IAM’s contention.

What the district court said was that at the time the TRO was issued, “based upon

the information the court had then, [there] was perhaps some activity on the part of

the Union in if not actively attempting to curtail that activity, maybe to in a

somewhat covert manner to encourage the activity. I think that allegation of that

activity has clearly been dissipated at this point in the court's mind based upon the

submissions of parties that I have received since the order has been in effect.”

Dec. 7, 2000, Hr'g Tr. at 27-28.

Because the evidence before the court at the TRO hearing had not

“dissipated,” the court could only have been referring to a change in the IAM’s

1008, 1014 (3d Cir. 1971), notes in dicta that a motion for contempt in a child custody case cannot be supported based on the recitals in an ex parte TRO. In the present case, the court’s TRO findings are relevant because it never made any contrary findings, denying the preliminary injunction only because it thought terminating employees would be “more effective.”


behavior between the TRO and the December 7 hearing. In any event, the court’s

remarks do not constitute a finding – based on the record before the court on

United’s motion for preliminary injunction – that the IAM had not authorized or

ratified the job action.

B. The Evidence Establishes Beyond Dispute That The IAM Did Authorize And Ratify The Slowdown

In its Opposition Brief, the IAM asserts that the district court’s “finding”

was supported by substantial evidence of IAM efforts to discourage the job action.

Even if the district court had made the finding alleged by the IAM, however, it

would be clearly erroneous. Although some of the evidence cited by the IAM in

its Opposition Brief purports to discourage any “unauthorized job actions,” there

was substantial evidence before the district court of IAM publications encouraging

the slowdown that cannot be explained away:7

• While the IAM claims that the memorandum of October 13, 2000, by

District Lodge 141M President Scotty Ford was issued because there

had been several accidents, the IAM never attempts to explain why

Ford issued a memorandum encouraging job safety under the heading

7 The IAM argues that United improperly attributed fliers encouraging a slowdown created by individual mechanics to the IAM. As noted in footnote 6 of its Opening Brief, however, United has carefully distinguished between publications by the IAM’s district and local lodges, and those that appeared to be published by individual mechanics.


“NEGOTIATIONS,” or why the phrases “SAFETY COMES FIRST”

and “WORK SAFE” are the only part of the memorandum in bold,

capital letters.8 Any fair reading of Ford’s memorandum makes clear

that Ford was tying the request to “WORK SAFE” to the slow

progress of negotiations, the unmistakable message being that if

mechanics would disrupt United’s operations with a slowdown,

United would be more willing to make concessions.

• The IAM does not – and cannot – provide any innocuous explanation

for the bulletin entitled “An Issue of Safety,” issued in identical form

in late October by the IAM’s local lodges under the headings

“Negotiations 2000,” “Millennium Negotiations,” and the “Lodge

1781 Strike Committee.” Opening Brief at 21-22. In that bulletin, the

IAM told mechanics to “give some thought to safety and clean [your

tools and tool boxes] daily.” First Norman Aff. ¶ 15, Exhibit 8

(United App. A9-10, A32-33). The IAM does not provide any

innocent explanation for these bulletins because there is none.

8 The IAM claims the fact that United also issued safety-related information makes the IAM’s bulletins innocuous. This unexplained conclusion fails. As acknowledged in the IAM’s Opposition, United’s safety messages were in its “Safety Gazette” – a bulletin expressly devoted to safety issues. Opposition Brief at 21. The IAM’s “Safety First” messages, however, were in bulletins criticizing the slow progress of the collective bargaining negotiations. See, e.g., First Norman Aff. ¶ 9, Exhibit 2 (United App. A7-8, A20-21).


• The IAM does not explain why, if it truly wanted to discourage the

ongoing slowdown campaign, it would use terms – SAFETY FIRST

and WORK SAFE – that were widely understood as code words for a

work slowdown, and were being used as such in the documents

distributed by the very mechanics the IAM concedes were

encouraging a slowdown campaign. See Opening Brief at 22-23.

C. The Evidence Establishes Beyond Dispute That The IAM Did Not Take All Reasonable Steps To Stop The Slowdown

Finally, even if the IAM did not authorize or ratify the slowdown campaign,

there can be no doubt the IAM did not make every reasonable effort to stop it

before United filed its November 17, 2000 motion for a TRO and preliminary

injunction. As discussed above, the letters and e-mails that the IAM claims to have

sent to its members in order to discourage the job action used terms widely

understood as code words to engage in a slowdown. Although the IAM maintains

that it held meetings with mechanics urging them not to participate in any job

action, the only evidence the IAM cites are the conclusory statements of Ford and

two local presidents who do not provide any dates, times, or places of such

meetings and plainly could not have personal knowledge that the meetings

occurred.

Moreover, as set forth in United’s Opening Brief, even after the TRO was

issued, the IAM did not come close to taking all reasonable steps to stop the


slowdown. See Opening Brief at 23-28. Not until after the TRO had been in place

for more than a week, and United had filed a motion for contempt sanctions, did

the IAM make any serious efforts to control its members’ behavior. In light of this

record, the IAM cannot seriously contend it took every reasonable action to control

the job action.

IV. THE IAM’S ARGUMENT THAT UNITED FAILED TO NEGOTIATE WITH THE IAM TO RESOLVE THE DISPUTE PRIOR TO SEEKING JUDICIAL INTERVENTION IS WITHOUT MERIT

In its Opposition Brief, the IAM argues that the district court properly

denied United’s motion for preliminary injunction because United failed to comply

with the NLGA’s requirement that it seek to resolve its dispute with the IAM

though “negotiations” before seeking judicial relief. This argument is both legally

and factually without merit.

As far as United can determine, no court has ever denied a motion to enjoin

an illegal job action because the carrier failed to seek a negotiated solution. To

impose such a prerequisite for injunctive relief would allow unions to ask for

concessions in exchange for ending illegal job actions. It would be senseless to

require an employer to negotiate with a union about an illegal job action whose

existence the union denies.

Moreover, the two cases cited by the IAM as support for this argument are

completely inapposite. The first case, Brotherhood of Railroad Trainmen v.


Toledo, P.&W. Railroad, 321 U.S. 50, 62 (1944), involved the consequences of a

carrier’s refusal to accept the National Mediation Board’s proffer of arbitration

under 45 U.S.C. § 155. In the second, Rutland Railway Corp. v. Brotherhood of

Locomotive Engineers, 307 F.2d 21 (2nd Cir. 1962), the court expressly rejected

the argument that a carrier was obligated under Section 8 of the NLGA to negotiate

before seeking a minor dispute injunction, calling it “a solution sounding a lot like

an exercise in theoretical logic.” In such a case, the court said, the carrier need

only take “some reasonable steps toward a dispute settlement before it can obtain

an anti-strike injunction.” 307 F.2d at 40.

In the present case, United plainly complied with whatever obligation exists

by its November 10, 2000, letter from Chief Operating Officer Andy Studdert to

IAM District Lodge 141M President Scotty Ford asking that the IAM put “an

immediate end to work to rule directives, and [take] any other steps necessary to

secure an immediate end to this disruptive behavior.” First Norman Aff. ¶ 38,

Exhibit 29 (United App. at A15, A76-78). Indeed, in light of the IAM’s response

denying the existence of any job action, one would be hard pressed to determine

what else United could have done.


CONCLUSION

For the foregoing reasons, including the analysis of the Eleventh Circuit in

the recent Delta case, the district court’s decision should be reversed, and this

Court should remand the case with instructions for the district court to enter a

preliminary injunction against the Defendants-Appellees.

DATED: February 13, 2001. Respectfully Submitted,

By:__________________________ MICHELE L. ODORIZZI ROBERT A. SIEGEL ANDREW S. MAROVITZ O’MELVENY & MYERS LLP MAYER, BROWN & PLATT 400 South Hope Street, 190 South LaSalle Street Suite 1500 Chicago, IL 60603-3441 Los Angeles, California 90071-2899 (213) 430-6000

TOM A. JERMAN O’MELVENY & MYERS LLP 555 13th Street, N.W. Suite 500 West Washington, D.C. 20004 (202) 383-5300

Attorneys for Plaintiff-Appellant, United Air Lines, Inc.


CERTIFICATE OF COMPLIANCE WITH FRAP RULE 32(a)(7)(B) I, Andrew S. Marovitz, an attorney, hereby certifies that the foregoing Reply

Brief of Plaintiff-Appellant United Air Lines, Inc., complies with the type volume

limitation provided by Rule 32(a)(7)(B). According to Microsoft Word’s word

counting system, the Brief contains 6,987 words.

Dated: February 13, 2001

______________________________

Andrew S. Marovitz


CERTIFICATE OF SERVICE I, Andrew S. Marovitz, an attorney, hereby certify that I caused two copies

of the foregoing Reply Brief of Plaintiff-Appellant United Air Lines, Inc., and a

disk containing the full text of the brief to be served upon:

Irving M. Friedman, Esq. Michael Erp, Esq.

Katz, Friedman, Eagle, Eisenstein & Johnson 77 West Washington Street, 20th Floor Chicago, Illinois 60602-2904 by messenger before 5:00 p.m. on February 13, 2001, and upon Robert A. Bush, Esq. Geffner & Bush 3500 West Olive Avenue, Suite 1100 Burbank, California 91505-4657 by depositing same with an overnight courier, postage prepaid, on February 13, 2001.

____________________________________ Andrew S. Marovitz

Documents

Reply Brief of Plaintiff-Appellant United Air Lines, Inc.apps.americanbar.org/labor/rwcomm/mw/papers/2001/siegelreply.pdf · Pan Am. World Airways v. ... United Air Lines v. ... v