DELTA AIR LINES, INC., Plaintiff-Appellant, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, et al., Defendants-Appellees.
No. 00-16472.
United States Court of Appeals, Eleventh Circuit.
Jan. 18, 2001.
J. Michael Walls, Walls & Glucksman, Atlanta, GA, Michael L. Winston, Michael E. Abram, New York City, Marcus Charles Migliore, Air Line Pilots Ass‘n, Washington, DC, for Defendants-Appellees.
Before TJOFLAT, BARKETT and MAGILL*, Circuit Judges.
TJOFLAT, Circuit Judge:
This case is before the court on Delta Air Lines’ appeal of the district court‘s denial of a preliminary injunction against the Air Line Pilots Association. Because we find concerted action on the part of the pilots and because the Air Line Pilots Association has a duty under the Railway Labor Act,
I.
A.
Delta Air Lines, Inc. (“Delta“) and the Air Line Pilots Association, International (“ALPA“) are parties to a collective bargaining agreement (“CBA“) that governs the terms and conditions of employment for over 9,800 pilots employed by Delta.1
In the midst of these ongoing negotiations, Delta pilots began to decline to fly “overtime.” Overtime is built into Delta‘s flight schedule, accounting for approximately five to seven percent of scheduled flights, and derives from the CBA.2 “Overtime” is in some ways a misnomer, for this is really unscheduled “open time” on the flight schedule in which pilots may volunteer to fly additional flights above their pre-arranged flight schedule. Although Delta maintains a pool of reserve pilots to operate flights in the event a scheduled pilot is unavailable, it relies upon pilots to “pick up” these overtime flights in order for Delta to operate all of its scheduled flights.3 A pilot has the right, under the CBA, to exercise his or her individual choice and decline to pick up overtime flights. Additionally, a pilot can avoid being assigned to operate overtime flights by exercising his or her CBA rights not to answer a telephone call and not to return a telephone call to Delta; pilots may not be assigned to overtime flying unless they have spoken with Crew Scheduling.
Although each individual pilot may make personal choices about how and whether to work overtime, Delta relies upon many of the pilots choosing to work this open time to fulfill its scheduled flights. If all of Delta‘s pilots were to refuse to pick up additional flights and refuse to work overtime, Delta would not be able to operate its full complement of flights. Although there are some alternatives available to Delta under the CBA, including raising the “cap” on pilot hours in a given month, staffing flights with reserves or management pilots, and pre-canceling flights and rebooking passengers in advance, these alternatives are limited and generally do not allow Delta to fly its full complement of scheduled routes.
The effects of the pilots’ no-overtime campaign are evident from Delta‘s flight statistics. Historically, Delta cancels no more than one or two of 2,700 flights daily due to a lack of pilots. However, in November 1999, pilots averaged 2,053 daily requests for overtime; in November 2000 they averaged only 1,276 daily requests. In the first three days of December 1999, pilots averaged 1,678 daily requests; in those same days in December 2000, they averaged 503 requests. Delta canceled a total of ten flights due to pilot shortages for the month of November 1999, while it canceled 375 flights in November 2000. In the first three days of December 1999, Delta had no cancellations; in the first three days of December 2000, Delta canceled 386 flights.5 Clearly, the pilots’ efforts to refuse overtime is affecting both Delta‘s flight schedule and the traveling public.6
In the midst of the no-overtime campaign by the pilots, Delta tried to work with ALPA by enlisting ALPA‘s assistance in ending the pilots’ concerted no-overtime campaign. During this time, ALPA issued a number of directives to the pilots advising them of their rights under the CBA regarding overtime; ALPA recommended flying overtime at premium rates—Green Slip flying. By November 2000, when some pilots were advising (and sometimes threatening) other pilots not to seek or fly overtime, the Delta Master Executive Council of ALPA (“MEC“)7 advised pilots several times, through several media, that pilots should respect the choices of others regarding overtime and that whether to fly overtime was the individual choice of each pilot. These steps by ALPA and the MEC had no measurable effect on the pilots’ no-overtime campaign. Delta was unable to overcome the no-overtime campaign either through compensatory scheduling methods or through ALPA‘s communications; therefore, Delta filed the present action.
B.
Delta filed a verified complaint on December 5, 2000 in the district court for the Northern District of Georgia. The complaint alleged an unlawful job action in violation of the Railway Labor Act (“RLA“),
II.
A.
The Railway Labor Act was passed in its initial form by Congress in 1926, with the support of both the railroads and the unions. Although a number of amendments have been introduced over the years, including extending the RLA to the airline industry in 1936, the stated purposes have remained constant. The first of the RLA‘s five listed purposes is “[t]o avoid any interruption to commerce or to the operation of any carrier engaged therein.”
During the long negotiating process, the RLA seeks to protect the public, carriers, and unions alike by imposing a legal duty upon carriers and unions to maintain the status quo with respect to “rates of pay, rules, [and] working conditions,” even when there is a disagreement about the CBA.
B.
In cases where a carrier seeks injunctive relief against a union, a court must look not only to the RLA, but also to the Norris-LaGuardia Act (“NLGA“),
C.
The Supreme Court has stated that although the prescriptions and proscriptions of the NLGA are clear, the NLGA “cannot be read alone in matters dealing with railway disputes.” Bhd. of R.R. Trainmen v. Chicago River & Ind. R.R. Co. (“Chicago River“), 353 U.S. 30, 40, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). Rather, “[t]here must be an accommodation of [the NLGA] and the [RLA] so that the obvious purpose in the enactment of each is preserved.” Id.14 The way to accommodate these two statutes, in most circumstances, is to determine if specific provisions of the RLA are implicated. If so, “the specific provisions of the [RLA] take precedence over the more general provisions of the [NLGA].” Id. at 42, 77 S.Ct. at 641; accord Pittsburgh & Lake Erie R.R. Co. v. Ry. Labor Executives’ Ass‘n, 491 U.S. 490, 513, 109 S.Ct. 2584, 2598, 105 L.Ed.2d 415 (1989).
When a specific provision of the RLA is implicated, “the District Court has jurisdiction and power to issue necessary injunctive orders [to enforce compliance with the requirements of the RLA] notwithstanding the provisions of the [NLGA].” Bhd. of R.R. Trainmen v. Howard, 343 U.S. 768, 774, 72 S.Ct. 1022, 1025, 96 L.Ed. 1283 (1952); see also Chicago & N.W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971) (holding that
It is clear that the substantive legal duty of
III.
A.
Contrary to ALPA‘s assertion, we hold that the district court had jurisdiction to hear the initial complaint: It did not arise from a “minor dispute,” which would have rendered it subject to mandatory and exclusive arbitration under the RLA.17 We reject ALPA‘s contention that the CBA “arguably” allows all pilots to refuse to work overtime when it is clear industry practice to structure flight schedules with “open time” built in. The only reasonable explanation for this customary practice is an expectation that not all of the pilots will choose to refrain from working overtime at the same time; this is implicit in the CBA. Further, this dispute centers on
B.
This is an appeal from the denial of a preliminary injunction. We have jurisdiction to hear this appeal pursuant to
C.
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.”
The district court made explicit findings that there was an “ongoing concerted effort on the part of some Delta pilots to refuse overtime work.” In its “Findings,” the district court analyzed the number of canceled flights and pilots’ reduced requests for overtime and found that “the statistics differ so substantially that the difference can only be explained by the efforts of an undisclosed number of pilots to undermine contract negotiations, seeking leverage for a salary increase.” The court did not rest solely on statistical evidence, though, but looked to other evidence, including e-mails, “many of which rise to the level of intimidation and harassment.” The court found that the “traveling public” and Delta are both harmed by the pilots’ concerted activity:
This reduction in requests for overtime is causing harm to Delta and the traveling public. Delta has lost millions of dollars in revenues, rerouting expenses, extra operating costs, and overnight hotel and meal vouchers. Additionally, Delta has suffered loss in the form of goodwill and traffic that is immeasurable. The public has suffered loss in time and money from the delays and cancellations which is also immeasurable.
In spite of these findings, the court refused to issue an injunction against ALPA and/or MEC. It based this refusal on the fact that “[n]either the Union leadership [of ALPA] nor the [MEC] supports this effort [by the pilots] and both have, in fact, counseled against it.” While it is true that ALPA and the MEC “counseled against” the efforts of the pilots, it is equally clear that these union communiques were not effective in suppressing the pilots’ no-overtime campaign.
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. It is possible, of course, that ALPA has in fact done all that it can do in directing the pilots to cease their no-overtime campaign. We seriously doubt this is the case, however. What seems to be true is that while ALPA has admonished its members at Delta‘s request, it has not made “every reasonable effort” as required by statute.
If ALPA cannot control the pilots, some of whom are admittedly violating the CBA by advocating concerted action, then Delta may return to the district court for additional relief. The district court would, at that point, join all appropriate parties as defendants (presumably sua sponte) and enjoin them from engaging in continued activity in violation of the CBA, under penalty of court sanction or other adverse employment action.
D.
Because the general procedural provisions of the NLGA still apply to this action, even though the anti-injunction portion of the NLGA does not, we must address the hearing before the district court. ALPA complains that Delta did not put on live testimony, with opportunity for cross-examination, as required by the NLGA,
In the instant case, although Delta did not put on live testimony, both sides presented sworn affidavits and a host of other evidence and testimony.23 This evidence was largely undisputed—particularly as it related to the fact that the pilots were undertaking concerted action. ALPA‘s counsel conceded at the hearing that injunctive relief would be proper if Delta‘s pilots were engaged in concerted activity that violated the status quo; the district court did not hesitate to make explicit its finding of such concerted activity by the pilots in its dispositive order, and even in its closing comments at the hearing itself. Delta‘s evidence consisted of (1) written documents reflecting the pilots’ overtime boycott (mainly in the form of captured e-mail communications); (2) union pronouncements and directives, which were concededly authentic; (3) statements of union members acknowledging the existence of the overtime boycott, which were concededly genuine; and (4) statistical evidence of the impact of the ban, which was not challenged by ALPA. ALPA presented
Given that there was no dispute about the reliability of the evidence, at least as to the concerted action by the pilots, we believe the district court was entitled to rely upon such evidence to make its determinations.24 See Ry. Express Agency, Inc. v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, 437 F.2d 388, 395 (5th Cir.1971) (holding that section 107 was not violated when the district court used only briefs and affidavits to decide whether to issue an injunction; live testimony with cross-examination was not required). The purpose of section 107 is served if the evidence is inherently reliable and there is no harm to the parties. An analogy to the hearsay rule demonstrates the propriety of this holding. Hearsay statements are generally excludable because they suffer from a lack of reliability; reliability is generally established through live testimony and cross-examination. However, there are exceptions to the hearsay rule that do not contravene the Confrontation Clause, even though they permit the introduction of out-of-court statements, because the statements are inherently reliable.
IV.
The district court properly determined that Delta‘s pilots were engaged in an unlawful no-overtime campaign. However, the district court improperly interpreted the gravity and depth of ALPA‘s duty under the RLA to prevent such an unlawful job action. Because there has been no showing that ALPA lacks control over the pilots, reason dictates that ALPA has not done enough to fulfill its statutorily mandated duty to “maintain” the agreement and avoid an “interruption to commerce.” Upon remand, the district court shall issue appropriate injunctive relief directing ALPA to take further steps to end the pilots’ no-overtime campaign. Further steps may include issuing directives as drafted by the court and threatening (or imposing) union sanctions for violations, as permitted by ALPA‘s constitution.25 If ALPA complies with the court‘s orders and the no-overtime campaign continues, Delta may return to the district court for injunctive relief against individual pilots, as discussed supra Part III.C.
REVERSED and REMANDED, with instructions.
BARKETT, Circuit Judge, concurring specially, in which MAGILL, Circuit Judge, joins:
I concur in the determination that under the law ALPA has an affirmative duty to exert every reasonable effort to prevent or stop the unilateral unlawful activity of its members and that it has not fulfilled that duty. Accordingly, I agree that this case should be remanded for the entry of an appropriate injunction requiring ALPA to take all reasonable steps to do so. However, any discussion of possible actions based on the possibility that ALPA cannot control its membership is premature.
Notes
Pilots generally fly a monthly work schedule for which they have bid, according to their training on particular equipment and seniority. A number of pilots, usually between fifteen and twenty-five percent, are scheduled as reserves. Open time may be assigned to reserves, if they are available. Generally, though, open time flights are filled by pilots who voluntarily pick up open time; this increases a pilot‘s flight hours and income. Pilots who desire premium pay may choose to fly Green Slip rather than White Slip, which means that the pilot will only be called upon after all pilots with White Slips and reserves for that day have been used to fill vacancies. A pilot may also request to fly open time hours on a flight which conflicts with the pilot‘s pre-assigned schedule; this is Green Slip with Conflict. If this open time is awarded, then the pilot drops his or her originally scheduled trip but receives payment for both the pre-assigned trip and the trip actually flown.
Another method of flight staffing is “inverse assignment.” Inverse assignment involves Delta contacting available and qualified pilots, in inverse order of seniority, to operate a flight. Inverse assignment duties pay premium (double) rates, and inverse assignment occurs only after Delta has exhausted all pilots volunteering for White Slips and Green Slips. Pilots often use answering machines or fail to answer their telephones, which limits the value of inverse assignment since a pilot may not be assigned unless he or she returns a call to Crew Scheduling. Inverse assignment with conflict works in the same way as regular inverse assignment, except that Delta calls upon pilots whose pre-assigned schedule will conflict with the proposed inverse assignment. Therefore, inverse assignment with conflict only occurs after Green Slips with Conflict, as well as all other methods of filling pilot vacancies, are exhausted.
The purposes of [the RLA] are: (1) To avoid any interruption to commerce or to the operation of any carrier engaged therein; (2) to forbid any limitation upon freedom of association among employees or any denial, as a condition of employment or otherwise, of the right of employees to join a labor organization; (3) to provide for the complete independence of carriers and of employees in the matter of self-organization to carry out the purposes of [the RLA]; (4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.
We believe, and this law has been written upon the theory, that in the development of the obligations in industrial relations and the law in regard thereto, there is more danger in attempting to write specific provisions and penalties into the law than there is in writing the general duties and obligations into the law and letting the enforcement of those duties and obligations develop through the courts in the way in which the common law has developed in England and America.
Hearings on Railroad Labor Disputes (H.R. 7180) before the House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., 91 (1926) (quoted in Chicago & N.W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 577, 91 S.Ct. 1731, 1735, 29 L.Ed.2d 187 (1971)).
No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
(a) Ceasing or refusing to perform any work or to remain in any relation of employment;
(b) Becoming or remaining a member of any labor organization or of any employer organization, regardless of any such undertaking or promise as is described in section 103 of this title;
(c) Paying or giving to, or withholding from, any person participating or interested in such labor dispute, any strike or unemployment benefits or insurance, or other moneys or things of value;
(d) By all lawful means aiding any person participating or interested in any labor dispute who is being proceeded against in, or is prosecuting, any action or suit in any court of the United States or of any State;
(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
(f) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute;
(g) Advising or notifying any person of an intention to do any of the acts heretofore specified;
(h) Agreeing with other persons to do or not to do any of the acts heretofore specified; and
(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified, regardless of any such undertaking or promise as is described in section 103 of this title.
“Major disputes,” by comparison, concern the formation or modification of collective bargaining agreements. See Elgin, Joliet & E. Ry. v. Burley, 325 U.S. 711, 723-24, 65 S.Ct. 1282, 1289-90, 89 L.Ed. 1886 (1945). Conduct that affects the status quo of a preexisting agreement is a major dispute for purposes of the RLA, and is properly brought before a federal court rather than a system adjustment board. See Conrail, 491 U.S. at 302-03, 109 S.Ct. at 2480.
If the conduct giving rise to an alleged status quo violation is arguably permitted by the CBA, the resulting dispute is a minor dispute, because it involves interpretation of the CBA. See id. at 307, 109 S.Ct. at 2483 (“Where an employer asserts a contractual right to take the contested action, the ensuing dispute is minor if the action is arguably justified by the terms of the parties’ [CBA]. Where, in contrast, the employer‘s claims are frivolous or obviously insubstantial, the dispute is major.“).
(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.
Siegel v. Lepore, 234 F.3d 1163 (11th Cir. 2000). The district court, had it properly applied the law, would have found that Delta met all four of these factors. The substantial likelihood of success on the merits is discussed infra Part III.C. Irreparable injury surely would be suffered by Delta by canceling a number of flights, losing customer goodwill, and losing revenues (although a showing of irreparable injury is not actually required under Conrail, 491 U.S. at 303, 109 S.Ct. at 2480). There is no threatened injury to the non-movant by the issuance of an injunction. Finally, the injunction furthers the public interest by insuring the continued operation of air travel on a major carrier.