© 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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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
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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.
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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,”
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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.
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(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
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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
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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.
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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
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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
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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.
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• 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)
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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
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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.
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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
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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.”
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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.
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“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).
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• 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
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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.
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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.
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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.
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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
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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