# Atlas Air, Inc. v. International Brotherhood of Teamsters

> District Court, District of Columbia · November 30, 2017 · 280 F. Supp. 3d 59

URL: https://www.frixlaw.com/law-library/cases/4224943

## Case

- **Full name:** ATLAS AIR, INC., Et Al., Plaintiffs, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** November 30, 2017
- **Citations:** 280 F. Supp. 3d 59
- **Precedential status:** Published
- **Opinion:** Opinion by Moss
- **Judges:** Judge Randolph D. Moss
- **Nature of suit:** Civil
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4224943

## How later opinions describe it (automated extraction)

- describing each stage of the procedure for resolving “major” disputes under the RLA

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ATLAS AIR, INC., et al.,

Plaintiffs,

v.
Civil Action No. 17-1953 (RDM)
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, et al.,

Defendants.

MEMORANDUM OPINION

This matter is currently before the Court on Plaintiffs’ motion for a preliminary

injunction, Dkt. 5, and Defendants’ motion to dismiss, Dkt. 51.

The case grows out of a labor dispute between Plaintiffs Atlas Air, Inc. and Polar Air

Cargo Worldwide, Inc. (collectively “Atlas”) and Defendants International Brotherhood of

Teamsters; International Brotherhood of Teamsters, Airline Division; and Airline Professionals

Association of the International Brotherhood of Teamsters, Local Union No. 1224 (collectively

“the Union”). Atlas is an airline that operates cargo and passenger flights for commercial

customers (such as Amazon, DHL, Qantas, Nippon Cargo Airlines, and Hong Kong Air Cargo

Carrier) and the U.S. military. It operates both long-haul, international and domestic flights.

The Union is the certified exclusive bargaining representative of Atlas’s pilots. Atlas and the

Union currently operate under a collective bargaining agreement (“CBA”) that took effect on

September 8, 2011. That agreement became “amendable” on September 8, 2016, and the parties

have been engaged in contract negotiations since earlier that year. All agree that those

negotiations are governed by the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq., which
applies to railroad and airline labor relations. The parties disagree, however, about almost

everything else in this case, including the relevance of the Norris-LaGuardia Act (“NLGA”), 29

U.S.C. § 101 et seq.

The RLA distinguishes between two types of disputes: “major disputes,” which arise

“out of efforts to form or change a collective bargaining agreement,” and “minor disputes,”

which relate “to the proper meaning or application of an existing agreement.” Air Line Pilots

Ass’n, Int’l v. Eastern Air Lines, 869 F.2d 1518, 1524 (D.C. Cir. 1989) (“Eastern Air Lines II”).

This distinction has important ramifications. In the case of a “major dispute,” the RLA requires

the parties to engage in “a lengthy process of bargaining and mediation,” and—most

significantly for present purposes—it requires the parties “to maintain the status quo” while that

lengthy process plays out. Consolidated Rail v. Railway Labor Execs.’ Ass’n, 491 U.S. 299, 302

(1989). The “use of economic force” is not permitted during this period, and the federal district

courts are empowered “to enjoin a violation of the status quo.” Id. at 303. In contrast, in the

case of a “minor dispute,” the RLA requires that the parties confer and, if necessary, submit to

compulsory arbitration to resolve disputes involving the interpretation or application of their

collective bargaining agreement. Id. That process moves considerably faster than the major

dispute process and operates against a different background norm: unlike major disputes, the

“general”—or categorical—“statutory obligation . . . to maintain the status quo” does not extend

to minor disputes. Id. at 304.

According to Atlas, it is in the midst of a major dispute with the Union regarding

amendment of the CBA, and the Union has violated its statutory obligation to maintain the status

quo during the ongoing contract negotiations. Atlas argues, in particular, that the Union has

orchestrated a concerted slowdown of flight operations in an effort to generate economic

2

leverage in the ongoing contract negotiations. It contends, for example, that the Union has

encouraged Atlas’s pilots to more frequently call in sick on short notice, to more frequently

decline to fly because of fatigue, to refuse to volunteer for open flight assignments, and to delay

flight departures by “blocking out on time.” Although Atlas argues that the RLA does not

require proof of irreparable injury to sustain the issuance of a status quo injunction, it also

maintains that it will suffer irreparable damage to its reputation and business if the slowdown is

allowed to continue during the peak shipping season between Thanksgiving and the end of the

year.

The Union, in contrast, contends that the present dispute is governed by the existing CBA

and thus constitutes a minor dispute, which does not demand preservation of the status quo. It

also argues, however, that Atlas is wrong and that it has not encouraged Union members to

engage in a slowdown. Rather, according to the Union, Atlas’s woes are the result of the

company’s rapid growth and poor management, an increased focus on preventing unsafe flying

conditions, and the Union’s desire to ensure that Atlas abides by its existing contractual

obligations. Because the Union, as a result, views the present dispute as no more than a garden-

variety disagreement over what is allowed under the CBA, it asserts that the status quo

requirement of the RLA is inapplicable and that, for this and other reasons, the NLGA strips the

Court of jurisdiction to issue an injunction. Finally, the Union argues that the injunction that

Atlas seeks would run afoul of the First Amendment.

As explained below, the Court concludes that it has jurisdiction to consider Atlas’s

motion for a preliminary injunction. The Court further concludes, moreover, that Atlas has

carried its burden of demonstrating that it is likely to succeed on the merits; that, to the extent

required to do so, it has established that it will likely suffer irreparable injury in the absence of a

3

preliminary injunction; that the Union will not suffer any countervailing injury if such an

injunction is issued; and that the public interest tips in favor of issuing a preliminary injunction.

The scope of the preliminary injunction, however, presents a more difficult question. All

agree that airline pilots should not fly sick or fatigued, that not every flight can or should block

out before its scheduled departure time, and that pilots cannot be forced to volunteer for open

flights. It is difficult, if not impossible, moreover, for the Union, Atlas, or the Court to determine

whether a particular pilot could have provided earlier notice before calling in sick, whether a

particular pilot is too tired to fly safely, or whether a pilot legitimately wanted to spend more

time with her family and thus decided not to volunteer for an open flight for reasons wholly

unrelated to a slowdown. What must stop, however, are efforts by the Union to tie activity of

this or any similar type to the collective bargaining process and to encourage pilots to change

their behavior in light of the ongoing labor dispute.

I. STATUTORY BACKGROUND

A. Railway Labor Act

Congress has long sought to “minimiz[e] interruptions in the Nation’s transportation

services by strikes and labor disputes.” Int’l Ass’n of Machinists v. Central Airlines, 372 U.S.

682, 687 (1963). These efforts have resulted in “successive attempts to establish effective

machinery to resolve disputes not only as to wages, hours, and working conditions, . . . but also

as to the interpretation and application of existing contracts.” Id. Congress’s first attempt was

the Transportation Act of 1920, which soon drew the ire of both labor and management for being

toothless and allowing the circumvention of rulings made by the administrative agency the act

created. Id.

In response, Congress enacted the Railway Labor Act of 1926, and amended it in 1934.

Id. at 688. This framework was more successful. Id. Unlike agreements subject to the National
4

Labor Relations Act, it made collective bargaining agreements in covered transportation sectors

perpetual; absent change through the prescribed statutory mechanisms, a CBA subject to the

RLA never expires. See Katherine Van Wezel Stone, Labor Relations on the Airlines: The

Railway Labor Act in the Era of Deregulation, 42 Stan. L. Rev. 1485, 1495–96 (1990)

[hereinafter Labor Relations on the Airlines]; see also 45 U.S.C. § 152, Seventh; Bhd. of Ry. &

S.S. Clerks v. Florida E. Coast Ry., 384 U.S. 238, 243 (1966). The RLA, after the 1934

amendments, also created two methods for resolving conflicts between labor and management,

and enlisted the courts in enforcing the statutory scheme. Air Lines Pilots Ass’n, Int’l v. Eastern

Air Lines, 863 F.2d 891, 895 (D.C. Cir. 1988) (“Eastern Air Lines I”).

The procedure employed to resolve a conflict depends on whether the dispute is “major”

or “minor” in nature. For the former, Section 6 of the RLA creates a process “described by the

Supreme Court as ‘almost interminable.’” Id. (quoting Detroit & Toledo Shore Line R.R. v.

United Transp. Union, 396 U.S. 142, 148 (1969) (“Shore Line”)); 45 U.S.C. §§ 181, 182

(applying Section 6 to the airline industry). First, the parties must undertake a period of

negotiation. See Eastern Air Lines I, 863 F.2d at 895. If that fails, the disagreement proceeds to

the National Mediation Board (“NMB”), an administrative agency created by the RLA. Id. The

NMB attempts mediation, or, if the parties consent, conducts voluntary arbitration. Id. In the

event arbitration is declined and mediation fails, the dispute “then may be subject to presidential

intervention to ensure adjustment.” Id. During this process of negotiation and mediation,

Section 2, First and Section 6 of the RLA prevent either party from altering the “status quo,” and

“either party is entitled to an injunction prohibiting any changes in ‘rates of pay, rules, or

working conditions.’” Id. (quoting 45 U.S.C. § 156). Only after these steps are exhausted and a

mandatory cooling-off period has elapsed may the parties resort to economic self-help, such as a

5

strike or lockout. Id. This dictate to maintain present conditions is commonly known as the

“status quo obligation,” and an injunction to enforce it as a “status quo injunction.”

The procedures governing major disputes are “purposely long and drawn out, based on

the hope that reason and practical considerations will provide in time an agreement that resolves

the disputes.” Florida E. Coast Ry., 384 U.S. at 246. Importantly, because a CBA governed by

the RLA never expires, these procedures apply any time a party seeks to negotiate a new CBA.

The party seeking amendment must give notice under Section 6 of the RLA and then follow the

procedures described above. See 45 U.S.C. § 156. In the airline industry, most CBAs further

include a temporal restriction on when Section 6 notice can first be given. See, e.g., Ass’n of

Flight Attendants v. United Airlines, 71 F.3d 915, 917 (D.C. Cir. 1995); IBT/HERE Emp.

Representatives’ Council v. Gate Gourmet Div. Ams., 402 F. Supp. 2d 289, 290 (D.D.C. 2005)

(“Gate Gourmet”). The date on which the parties are allowed to formally initiate renegotiation

of the CBA is referred to as the “amendable date.”

By contrast, when labor and management cannot resolve a minor dispute through

negotiation, the RLA mandates that the parties submit the conflict to a board for binding

arbitration. See Eastern Air Lines I, 863 F.2d at 895; see also 45 U.S.C. § 184 (“The disputes

between an employee or group of employees and a carrier or carriers by air growing out of

grievances, or out of the interpretation or application of agreements concerning rates of pay,

rules, or working conditions . . . may be referred by petition of the parties or by either party to an

appropriate adjustment board.”). When Congress extended the RLA to airlines in 1936, it tasked

companies and unions with establishing their own arbitration boards until such time as the NMB

deemed the establishment of a permanent national board for airlines necessary. Central Airlines,

372 U.S. at 685–86; see also 45 U.S.C. § 184. The arbitration boards created by labor and

6

management continue to be employed today, and are known as “system boards,” Central

Airlines, 372 U.S. at 690, or, in the case of Atlas and the Union, a “System Board of

Adjustment,” Dkt. 51-1 at 6. Most relevant to the present case, “the arbitration board’s

jurisdiction over minor disputes is exclusive; the courts do not have jurisdiction to issue status

quo injunctions.” Eastern Air Lines I, 863 F.2d at 895–96. As a result, each party “is free to act

under its interpretation of the collective bargaining agreement until the arbitrator rules

otherwise.”1 Eastern Air Lines II, 869 F.2d at 1520–21.

B. Norris-LaGuardia Act

This case also involves a “labor dispute” as defined by the Norris-LaGuardia Act, 29

U.S.C. § 101 et seq. Congress enacted the NLGA to curtail “the growing tendency of federal

courts to enjoin strikes by narrowly construing the Clayton Act’s labor exemption from the

Sherman Act’s prohibition against conspiracies to restrain trade.” Jacksonville Bulk Terminals,

Inc. v. Int’l Longshoremen’s Ass’n, 457 U.S. 702, 708 (1982). Among other things, the NLGA

states that in any “controversy concerning terms or conditions of employment, or concerning the

association or representation of persons in negotiating, fixing, maintaining, changing, or seeking

to arrange terms or conditions of employment,” 29 U.S.C. § 113, “[n]o court of the United States

. . . shall have jurisdiction to issue any restraining order or temporary or permanent injunction . . .

except in a strict conformity with the provisions of this chapter; nor shall any such restraining

order or temporary or permanent injunction be issued contrary to the public policy declared in

1
A “narrow exception to this rule” permits a district court to “exercise equitable power” to issue
a minor dispute injunction when “necessary to preserve the arbitrator’s ability to decide the
dispute.” Eastern Air Lines II, 869 F.2d at 1520–21 n.2. Because unions may not “make a
minor dispute the subject of a strike,” Eastern Air Lines I, 863 F.2d at 896, courts may also
enjoin minor dispute strikes and, in doing so, may “condition the granting of [the] strike
injunction on a requirement that the employer maintain the status quo pending . . . resolution of”
a minor dispute, Consolidated Rail, 491 U.S. at 304.

7

this chapter,” 29 U.S.C. § 101. Section 4 of the NLGA enumerates the specific acts that courts

lack jurisdiction to enjoin, which include “[c]easing or refusing to perform any work.” 29 U.S.C.

§ 104.

The NLGA also contains a number of additional jurisdictional restraints on the

judiciary’s authority to issue labor injunctions. Most relevant to the present case are those

contained in Section 8, which states:

No restraining order or injunctive relief shall be granted to any complainant who
has failed to comply with any obligation imposed by law which is involved in the
labor dispute in question, or who has failed to make every reasonable effort to settle
such dispute either by negotiation or with the aid of any available governmental
machinery of mediation or voluntary arbitration.

29 U.S.C. § 108. Section 8 accordingly creates two obligations. First, the party seeking a labor

injunction must “comply with any obligation imposed by law.” Id. Second, unless the moving

party has “ma[d]e every reasonable effort to settle the dispute, he is forbidden relief.” Bhd. of

R.R. Trainmen, Enter. Lodge, No. 27 v. Toledo, P. & W.R. Co., 321 U.S. 50, 56–57 (1944). “The

latter condition is broader than the former” and requires that the moving party “go beyond [his

legal obligations] and make all reasonable effort” to settle the dispute. Id. at 57.

Although sweeping, this obligation has limits because the NLGA “cannot be read alone

in matters dealing with railway labor disputes.” Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R.,

353 U.S. 30, 40 (1957). Instead, “[t]here must be an accommodation of [the NLGA] and the

Railway Labor Act so that the obvious purpose in the enactment of each is preserved.” Id. That

accommodation recognizes that the RLA provides “special processes intended to [achieve]

compromise” between companies and unions in railway and airline cases, and that the NLGA

also applies to the extent it is not inconsistent with the RLA. Id. at 41.

8

II. FACTUAL BACKGROUND

A. The Parties

Plaintiffs Atlas Air, Inc. and Polar Air Worldwide Cargo, Inc. are global airlines offering

cargo and passenger service. Dkt. 48 at 2. Both are owned by Atlas Air Worldwide Holdings,

Inc., a holding company based in Purchase, New York. Id. at 2–3. Atlas conducts various types

of operations. First, it conducts international, long-haul cargo and passenger flights using

primarily B-747s that are typically scheduled on an ad hoc, point-to-point basis. Dkt. 47 at 2–3.

These flights took Atlas’s pilots and planes to more than 400 airports in 100 different countries

in the past year. Id. at 2. In addition to transporting time-sensitive products and equipment for

customers like Qantas, Cathay Pacific, and Nippon Cargo Airlines, Atlas is the largest provider

of commercial, wide-body cargo airlift services for the United States Military Air Mobility

Command. Id. at 3. Pilots serving these routes often fly multiple legs overseas rather than

returning to a base in the United States between operations. Id. at 4. Because of the lack of

centralized bases, staffing these flights requires coordinating crew schedules across multiple

flights and continents. Dkt. 48 at 5. Traditionally, these operations constituted the lion’s share

of Atlas’s business. Dkt. 47 at 3.

In recent years, however, the growth of online shopping has dramatically increased

domestic demand for air freight. Id. Atlas has responded by increasing its fleet of B-767s,

which it uses to operate shorter-haul, domestic cargo flights for customers like Amazon and

DHL. Id. Unlike Atlas’s long-haul operations, these flights are typically scheduled in advance

or conducted on a regular schedule, adding predictability to Atlas’s operations. Id. at 4. The

parties agree that these developments have created two separate networks—one international and

highly decentralized, the other domestic and more hub-oriented—that operate under a single

corporate and union structure using the same pilots. Dkt. 47 at 3; Dkt. 48 at 4–5. In response to
9

the increased demand for domestic cargo operations, Atlas has hired large numbers of new pilots

in recent years. Dkt. 48 at 6. From September 2015 to September 2017, for example, the

number of pilots employed by Atlas with less than three years of experience increased from 36%

of all pilots to 51% of all pilots. Dkt. 57-12 at 2.

Defendants International Brotherhood of Teamsters and its Airline Division represent the

Atlas pilots. Dkt. 31-2 at 3. The Teamsters were certified as the exclusive bargaining

representative of the pilots under the RLA on December 22, 2008. Id. at 4. A local affiliate of

the Teamsters—Local Union No. 1224, the third Defendant in this case—has responsibility for

day-to-day representation of Atlas pilots. Id. at 3–4. Local 1224, in turn, manages the

representation of Atlas pilots through a five-person, elected board called the Atlas Pilots’

Executive Committee. Id.

B. The Existing Collective Bargaining Agreement

After several years of negotiations, the current collective bargaining agreement between

Atlas and the Union took effect on September 8, 2011. Dkt. 47 at 6. Although this opinion

refers to the Plaintiffs collectively as “Atlas,” as previously noted, they are in fact two separate

airlines (Atlas Air and Polar) owned by a holding company (Atlas Air Worldwide Holdings). In

early 2009, the Union, Atlas Air, and Polar agreed to negotiate a merged contract that would

cover both Atlas Air and Polar pilots, despite the fact that the two companies are separate legal

entities. Dkt. 31-2 at 4–5. That agreement to negotiate provided that, in the event a contract

could not be reached, the parties would submit to binding arbitration. Id. at 5. The negotiations

over the CBA were fraught, and, by late 2010, the parties concluded they could not reach an

agreement and thus submitted the matter to arbitration. Id. The existing CBA was then

fashioned by the arbitration board. Id.

10

That CBA contains several provisions arguably bearing on the present dispute. First, it

prohibited both parties from seeking to amend or otherwise to change the agreement for five

years from its effective date. Dkt. 31-1 at 282. Under this provision, the agreement became

amendable on September 8, 2016, although either party could serve notice on the other of intent

to seek a change in the agreement up to 270 days beforehand. Id. Consistent with the RLA, if

no party served such notice, the CBA was to remain in effect. Id.

Second, the CBA restricts the Union’s ability to employ economic self-help until

authorized to do so under the RLA. Section 26.X states, in full:

The Union, through its Atlas Air, Inc. Executive Council, agrees that during the
term of the Agreement there will not be any complete or partial strikes, picketing,
slowdowns, unfair labor practice strikes, refusals to cross picket lines, sympathy
strikes, work stoppages, secondary boycotts, withholding of services in whole or in
part, concerted refusal to work normal overtime, or other cessation of work of
disturbances economic or otherwise unless and until the parties’ rights to self-help
mature under the Railway Labor Act, provided, however, that nothing herein shall
be construed to limit the Union’s right to engage in otherwise lawful informational
picketing. This paragraph shall not alter or limit the Company’s right, if any, to
obtain a court order enjoining such conduct by the Union and[/]or the
Crewmembers both collectively and individually. Nothing in this paragraph shall
be construed, however, to limit the rights of the Union or the Atlas Crewmembers
to refuse to cross lawful strike picket lines established by or on behalf of pilots
represented by any union lawfully certified or recognized pursuant to the Railway
Labor Act.

Id. at 204.

Third, the CBA provides a mechanism for addressing asserted violations by the Union of

Section 26.X. Section 20.D provides:

In the case of a grievance initiated by the Company (a “Company grievance”), the
Company shall submit the Grievance to the Union in writing or by electronic mail.
The Company grievance shall conform with the timeliness and formal requirements
set forth in subsection 20.B.1.a, above. The Company may file a grievance only
over the interpretation or application of the Agreement. Within thirty (30) days of
submission of a Company grievance, a Union official designated by the Union will
meet with the Company’s Vice President of Flight Operations and the Company’s
senior official responsible for Crewmember labor relations, or their designees, to
discuss the matter. If the grievance cannot be resolved as a result of this meeting
11

then within thirty (30) days following such meeting, the grievance may be appealed
by the Company to the Board by filing a notice of appeal to the Board on or before
the thirty-first (31) day following the meeting. Such appeals shall conform to the
requirements set forth in 20.B.3.a., above, except the notice of appeal shall be filed
with a Union official designated by the Union.

Id. at 126–27.

Finally, the Board to which Section 20.D refers is the System Board of Adjustment

established in Section 21 of the CBA. Id. at 130. That section describes in detail the process and

timeline for proceeding with arbitration and limits the jurisdiction of the Board. With respect to

the Board’s jurisdiction, the CBA states that it “shall not extend to any proposed changes in rates

of pay, rules or working conditions” and that “[t]he Board shall not have any jurisdiction to add

to, subtract from, modify or amend any of the terms of this Agreement.” Id. The CBA envisions

a process for resolving grievances that takes several months. Once the parties conclude they are

unable to resolve the grievance among themselves, they may appeal to the Board. Id. at 130–31.

At that point, ten days must elapse before the selection of an arbitrator may begin. Id. at 132.

The arbitrator sits as the Board’s third member, and is chosen after the Union and Atlas each

select one Board member. Id. Upon selection, the arbitrator must propose dates for a hearing,

and those dates must be within sixty days. Id. After the hearing, the Board must issue its

decision within sixty days. Id. at 133.

C. Negotiations to Amend the Collective Bargaining Agreement

In late 2014, Local 1224 held elections for its Atlas Pilots’ Executive Committee. Dkt.

48 at 8–9. Captain Robert Kirchner, an employee of Atlas or its predecessor companies since

January 2000, ran for chairman. Id. at 9; Dkt. 31-2 at 2. At some point during the fall of 2014,

he had dinner with Captain Jeffrey Carlson, the Senior Vice President of Flight Operations at

Atlas since October 2008. Dkt. 48 at 8; Dkt. 5-3 at 1. At the dinner, Captain Kirchner indicated

that he was running on a platform of what he termed “strict contract compliance.” Dkt. 31-2 at

12

15. Captain Kirchner alleges that Captain Carlson agreed that such compliance was the proper

way forward for the parties, id., and Captain Carlson testified that “contract compliance was the

message he sent me. And he asked me how the company felt about that. And like I reflected

before, we absolutely support honoring the contract.” Hearing Tr. Day 2 (57:15–17).

Captain Kirchner was elected chairman of the Atlas Pilots’ Executive Committee in

November 2014. Dkt. 48 at 9. Before taking office, he prepared a bullet point proposal for

Atlas’s upper management to “mitigate the loss of experienced pilots” in light of what he

regarded to be a “large gap in compensation and retirement” benefits provided under the Atlas

contract and “the trends in the industry.” Hearing Tr. Day 3 (54:10–55:6); Dkt. 58-1 at 2.

According to Captain Kirchner, although Atlas’s management “took” the proposal “as a contract

opener,” he explained that he was not seeking to open negotiations prior to the amendable date,

which was still over a year and a half away. Hearing Tr. Day 3 (55:10–56:4). In any event, all

agree that Atlas was not required to engage in contract negotiations at the time and that it

declined to do so. Hearing Tr. Day 2 (60:15–21).

On January 1, 2015, Captain Kirchner took office as chairman of the Atlas Pilots’

Executive Committee. Dkt. 31-2 at 4. On January 19, 2016, the holding company that owns

Atlas and Polar announced its agreement to acquire two additional airlines, Southern and Florida

West. Id. at 6. The holding company soon announced its intention to merge Atlas and Southern,

while keeping Florida West and Polar as separate entities. Id. at 7. The holding company has

since “wound down” Florida West. Dkt. 5-3 at 6. The crewmembers of Southern are also

represented by the Union and are parties to a collective bargaining agreement that became

amendable on November 6, 2016. Id.

13

On February 16, 2016, the Union served written notice under Section 6 of the RLA on

Atlas that it would seek to modify the collective bargaining agreement that had been imposed by

the arbitration board. Dkt. 31-2 at 6. Although the amendable date was still months away, the

notice was not premature under the terms of the existing CBA, which allowed a party to serve

notice of an intent to seek changes as early as 270 days before the amendable date. Id. Around

the same time, the Union also sent a Section 6 notice to Southern. Dkt. 5-3 at 6. According to

the Union, at a March 15, 2016 negotiating session, Atlas announced that it would no longer

engage in standalone negotiations with the Union to amend the Atlas CBA; instead, it would

negotiate only a “merged” collective bargaining agreement that would cover both Atlas and

Southern pilots. Dkt. 31-2 at 7. Atlas took the position that such a merged agreement was

required by the existing CBA, while the Union argued that the holding company, rather than

Atlas, had acquired Southern. Id. To the Union, that meant that only the holding company could

seek a merged agreement. Id. Because the holding company had refused to be made a party to

the CBA during the negotiations that led to the arbitration that created the existing CBA, the

Union argued that it could not then invoke that agreement. Id. The Union instead offered to

extend the existing CBA while Southern and Atlas formally merged, to integrate the Southern

pilots into the existing CBA, and to sign a separate agreement that would address concerns the

Union had regarding the application of the present CBA to the companies’ growing domestic

cargo operation. Id. at 8. Atlas and Southern refused the Union’s offer. Dkt. 5-3 at 7; Dkt 31-2

at 10.

On April 13, 2016, the Union applied to the NMB for mediation. Dkt. 31-2 at 10. The

next day, Atlas filed a grievance under the existing CBA alleging that the Union had failed to

follow procedures for negotiating a post-merger CBA as required by the contract. Id. The Union

14

declined to follow the arbitration procedure set out by the CBA, alleging that that the contract

provisions could not properly be invoked given the structure of the acquisition of Southern and

the fact that Atlas, rather than the holding company, was a party to the existing CBA. Id.;

Hearing Tr. Day 2 (133:18–134:21). NMB mediation began but was never completed. Dkt. 31-

2 at 10–11. After nearly a year of impasse, Atlas Air and Southern sued the Union in the

Southern District of New York to compel arbitration under each company’s existing CBA, which

set out a mechanism for creating a merged contract. Id. at 11. The Union contends that Atlas’s

goal is to force the creation a new CBA through arbitration rather than the major dispute process

set forth in the RLA. Id. The latter process would require NMB mediation, and, if such

mediation failed, would eventually permit the parties to use economic self-help. Id. at 11–12.

D. The Alleged Slowdown

The Union actions that Atlas alleges constitute an illegal slowdown in violation of the

RLA’s status quo requirement will be discussed in more detail below. A brief introduction to the

Union communications and pilot actions at issue, however, is helpful to set the stage.

After taking office in January 2015, Captain Kirchner launched an effort to revamp the

Union’s program for communicating with its member pilots. He made it a top priority within the

Atlas Pilots’ Executive Committee “to better educate the Atlas pilots.” Id. at 19. Among other

steps, he instituted periodic Atlas Teamsters Action Messages (“ATAMs”), which take the style

of a radio talk show or podcast, and “Atlas Pilots Crew Calls,” which provide an unscripted

forum for rank-and-file pilots to call in to ask Captain Kirchner and others questions. Id. at 19–

21.

A major theme of the ATAMs and Crew Calls has been to encourage pilots to “Stop

Helping Out Purchase,” or “SHOP”—Purchase, New York, being the headquarters of Atlas. Id.

at 20. Captain Kirchner and Captain Mike Griffith, the Executive Committee Communications
15

Chairman, have urged pilots to “honor the CBA every day and on every flight” and to “hold

management accountable.” Dkt. 5-3 at 11 (quoting June 23, 2017 Chairman’s Update & August

31, 2017 ATAM). When a rank and file member of the Union noted during a February 2016

Crew Call, for example, that a new contract that treats pilots “fairly” would provide an incentive

for them “to go above and beyond to get the job done,” Captain Kirchner responded, “that’s a

great point,” and “[r]emember, everybody . . . [w]hen you’re there doing your job, you’re also at

the negotiating table. And every time they out-negotiate you by getting you to violate the CBA

and [by] getting you to do their job for them, they win at the negotiating table.” Dkt. 28-3 at 11–

12. As the Union’s communication’s director put it during an ATAM, “the leverage” the Union

“needs to go up against” Atlas management will come from members acting together—in

“solidarity”—to strictly comply with the CBA. Dkt. 5-53 at 20–21. Or, in the words of yet

another ATAM, “[f]ollow the CBA[, a]nd SHOP every chance you get when you’re at work,

because[] it’s working.” Dkt. 5-18 at 7 (22:22–23:2).

One specific aspect of the Union’s SHOP campaign has urged pilots to “block out on

time,” or “BOOT.” “Blocking out” refers to the process of releasing the aircraft’s brake and

pushing back to taxi. Dkt. 5-3 at 17. According to Atlas, the estimated departure time for a

flight represents the latest time the “flight is expected to block out.” Id. But, if “an aircraft is

loaded and otherwise ready to depart,” the pilot may—and hopefully will—block out before the

estimated departure time in order to improve airline efficiency and to provide a “buffer that helps

to ensure” timeliness. Id. at 17–18. Although a pilot needs to obtain authorization from Atlas to

block out more than fifteen minutes before the estimated departure time, that is not required for

the final fifteen-minute window. Dkt. 31-2 at 47. Under the BOOT campaign, however, the

Union has encouraged Atlas pilots to exercise their “right” to wait until the last possible minute

16

to block out. As explained by the Union in an April 12, 2016 CBA Chat: “BOOT stands for

Block Out on Time. And we are not doing this. We are going early, left right, and center. . . .

So now, we’re asking everybody—your [Executive Committee] is asking you to not block out

early, ever, period. Period, ever.” Dkt. 5-17 at 6 (18:19–20:21).

According to Atlas, the Union’s SHOP campaign and other Union-led efforts have placed

significant financial pressure on the company and have upset the status quo required by the RLA.

Using statistical analyses to support many of its contentions, Atlas points to the following

changes in pilot behavior, which it attributes to the Union’s efforts to exert pressure on the

company in the ongoing contract negotiations:

First, Atlas argues that pilots are calling in sick on short notice at a higher rate than they

did prior to the Section 6 notice. Dkt. 5-3 at 7. According to the company, the Union has

instigated this change in pilot behavior in order to exert influence on the ongoing CBA

negotiations.

Second, Atlas alleges that pilots are now calling in fatigued more often. Id. at 11–15.

Indeed, according to the company, since February 2016, when the Union notified Atlas of its

intent to negotiate, the average rate of fatigue calls has nearly tripled. Dkt. 5-103 at 28.

Third, Atlas contends that pilots are now less likely to volunteer for what is called “open

time flying.” Dkt. 5-3 at 15–16. Open time flying is the practice of picking up flights that are

scheduled without an assigned crew, analogous in many ways to overtime and common in the

international, long-haul cargo scheduling scheme long utilized by Atlas. Id. at 15–16. The CBA

does not require pilots to volunteer for open time, but Atlas says it has had more and more

trouble filling the spots. Id. at 16. In support of this contention, the company points to statistical

17

evidence that the proportion of unfilled open time trips each month has—at least on average—

increased dramatically since February 2016. Dkt. 5-103 at 32.

Fourth, Atlas argues that the Union’s BOOT campaign has resulted in far fewer

departures at the time aircraft are actually loaded and ready to push back, with pilots instead

waiting at the gate until the scheduled departure time. Dkt. 5-3 at 16–20. Atlas argues that

leaving closer to the scheduled departure time has reduced its margin for error with respect to

later, unexpected delays, especially when done in concert with slower taxiing (something Atlas

also alleges it has observed). Id. at 19–20. In support of its contention that the Union is to

blame, Atlas points to statistical evidence that the percentage of flights leaving before the

estimated departure time fell dramatically after February 2016, while the number of flights

departing at exactly the estimated departure time rose at a corresponding rate. Dkt. 5-103 at 38.

Fifth, the company asserts that pilots have increased the number of maintenance write-

ups they are making, including demanding that minor issues be corrected prior to departure

rather than flying with open maintenance issues that do not affect the safety of the aircraft. Dkt.

5-3 at 20–21.

Finally, Atlas contends that pilots have begun refusing to fly because of noncompliance

with the CBA’s crew meal provisions, whereas they previously accepted vouchers or other

compensation in exchange for waiving compliance. Id. at 21–22.

To the extent the CBA arguably permits some of these behaviors, Atlas takes issue with

changes in pilot behavior over the life of the CBA. See id.

The Union, for its part, disputes virtually all of these allegations. Its more specific

rejoinders are discussed below, but its counterarguments take three general tacks. First, it

disputes the statistical analysis offered by Atlas, and it offers its own expert who reaches

18

different conclusions. See Dkt. 31-3. Second, it argues that any changes revealed by the data are

the result of other causes unrelated to the ongoing CBA negotiations. It argues, for example, that

changing regulations, safety awareness, and crew compositions have led to the increase in

fatigue calls, and it offers declarations from pilots contesting Atlas’s account of their decisions to

call in sick or fatigued. Id.; see also Dkt. 31-2. Similarly, it contends the BOOT campaign is

intended to prevent pilots from violating various rules, including Federal Aviation

Administration (“FAA”) “regulatory flight duty time limits and rest requirements.” Dkt. 31-2 at

28. Third, it suggests that any changes that can actually be traced to the Union’s

communications are affirmatively permitted by the CBA, and thus cannot constitute a violation

of the status quo. That is, the Union is merely requiring that Atlas abide by the existing contract;

the SHOP campaign has not sought to shift the playing field, but only to ensure that future

negotiations take as their starting point the playing field that was agreed to in the 2011 CBA.

E. Resumption of Negotiations and the Present Suit

Despite disputes along the way, the parties concluded an agreement in June 2017 on a

negotiating protocol called the “Negotiation Process to Facilitate Completion of Collective

Bargaining Negotiations,” which led to a resumption of formal negotiations on July 6, 2017.

Dkt. 5-3 at 6–7. The lawsuit in the Southern District of New York seeking to compel the Union

to accept binding arbitration as to the contents of the new CBA remains pending, however.

On September 25, 2017, Atlas filed the present suit, Dkt. 1, and simultaneously moved

for a preliminary injunction, Dkt. 5. The Court held a scheduling conference on September 29,

2017, and set an expedited schedule for discovery and briefing. Minute Entry (Sept. 29, 2017).

The Court held an evidentiary hearing on October 31, November 1, and November 2, 2017.

Minute Entry (Oct. 31, 2017); Minute Entry (Nov. 1, 2017); Minute Entry (Nov. 2, 2017). The

parties agreed to offer their direct testimony in declarations, which the witnesses summarized
19

and affirmed on the stand. See Dkt. 39 (Rough Tr. at 2:12–4:20). The opposing party was then

allowed to cross-examine the witnesses regarding both their live testimony and their

declarations. Where the opposing party waived cross-examination, the witnesses were permitted

to rest on the written declarations alone.

Following the evidentiary hearing, the parties submitted post-hearing briefs, Dkt. 49; Dkt.

50, and proposed findings of fact, Dkt. 47; Dkt. 48. The Union concurrently filed a motion to

dismiss for lack of subject matter jurisdiction. Dkt. 51. Atlas responded on November 14, 2017,

Dkt. 52, and the Union filed its reply on November 17, 2017, Dkt. 56. All told, although the case

remains at a preliminary stage, the record occupies over 5,000 pages.

III. ANALYSIS

A. Subject Matter Jurisdiction

The Court begins, as it must, with the question whether it has subject matter jurisdiction

to grant Atlas the relief that it seeks—that is, an injunction barring the Union from encouraging

its members to engage in a slowdown designed to influence the ongoing contract negotiations.

The answer to that question turns on the meaning and application of both the NLGA and the

RLA. As noted above, the NLGA was enacted to curtail the jurisdiction of federal courts to

issue injunctions against labor unions. See Int’l Ass’n of Machinists v. Street, 367 U.S. 741, 772

(1961). Section 1 of the Act declares that “[n]o court of the United States . . . shall have

jurisdiction to issue any restraining order or temporary or permanent injunction in a case

involving or growing out of a labor dispute, except in strict conformity with the provisions of”

the NLGA. 29 U.S.C. § 101. Section 4, then, “enumerates specific acts that shall not be subject

to any restraining order or injunction,” including “‘[c]easing or refusing to perform any work or

to remain in any relation of employment’” and “‘[g]iving publicity to the existence of, or the

facts involved in, any labor dispute . . . by any method not involving fraud or violence.’”
20

Burlington N. R.R. v. Bhd. of Maint. of Way Emps., 481 U.S. 429, 437 (1987) (quoting 29 U.S.C.

§§ 104(a), 104(e)).

At the same time, however, the RLA authorizes federal courts to enjoin unions and

employers from engaging in practices that violate the RLA’s status quo obligation. See

Consolidated Rail, 491 U.S. at 302–03. As the Supreme Court has explained, “[t]he obligation

of both parties during a period [for which] the[] status quo provision[] is properly invoked is to

preserve and [to] maintain unchanged those actual, objective working conditions and practices,

broadly conceived, which were in effect prior to the time the pending dispute arose and which

are involved in or related to that dispute.” Shore Line, 396 U.S. at 153. This obligation lies at

the “heart” of the RLA, Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377–

78 (1969), and it is “enforceable by whatever appropriate means might be developed on a case-

by-case basis,” including injunctive relief, Chicago & N.W. Ry. v. United Transp. Union, 402

U.S. 570, 577 (1971).

The evident tension between the sweeping anti-injunction provisions of the NLGA and

the need for injunctive relief as a means of enforcing the RLA has long since been resolved.

Over sixty years ago, the Supreme Court declared that “the Norris-LaGuardia Act cannot be read

alone in matters dealing with railway labor disputes” and that “[t]here must be an

accommodation of that statute and the Railway Labor Act so that the obvious purpose in the

enactment of each is preserved.” Bhd. of R.R. Trainmen, 353 U.S. at 40. That accommodation,

the Court observed, can be found in the distinct purposes of the NLGA and the RLA: the NLGA

was enacted to preserve the ability of unions to employ the type of “economic power” that “is

vital to collective bargaining,” while the RLA established alternative processes for reaching

compromises in the railroad and airline industries. Id. at 40–41. As a result, when the provisions

21

of the NLGA and the RLA conflict, “the specific provisions of the Railway Labor Act take

precedence over the more general provisions of the Norris-LaGuardia Act,” and federal district

courts have jurisdiction to issue those injunctive decrees that are necessary to enforce the

requirements of the RLA. Id. at 42; accord Pittsburgh & Lake Erie R.R. Co. v. Ry. Labor

Execs.’ Ass’n, 491 U.S. 490, 513 (1989); Delaware & H. Ry. v. United Transp. Union, 450 F.2d

603, 611 (D.C. Cir. 1971).

The Union does not contest this settled law but, rather, argues that the Court is without

jurisdiction for two reasons specific to the present conflict. First, it argues that the dispute is a

minor one within the meaning of the RLA and that, as result, the status quo obligation does not

apply. Because self-help is generally permissible in minor disputes, and Atlas, in any event, has

not initiated an arbitration regarding the parties’ dispute, the Union contends that nothing in the

RLA conflicts with—or displaces—the NLGA’s restriction on the Court’s jurisdiction. Indeed,

the Union continues, because the present dispute is a minor one, the RLA itself specifies that

arbitration is Atlas’s exclusive remedy, thereby divesting the Court of jurisdiction. Second, the

Union argues that Atlas has failed to comply with various procedural requirements contained in

the NLGA; that those procedural requirements do not conflict with the RLA; and that the

company’s lack of strict compliance with those requirements divests the Court of jurisdiction.

The Court will consider each of these contentions in turn.

1. The Parties are Engaged in a Major Dispute

The Union devotes much of its argument to the contention that the parties are not

engaged in a major dispute and that, as a result, the status quo obligation does not apply. A

major dispute is one that “arises out of efforts to form or change a collective bargaining

agreement.” Eastern Air Lines II, 869 F.2d at 1524. It “concerns changes in ‘rates of pay, rules,

or working conditions,’ 45 U.S.C. § 151a(4), and relates to ‘the formation of [a] collective
22

bargaining agreement[] or efforts to secure [one].’” Nat’l R.R. Passenger Corp. v. Transp.

Workers Union of Am., 373 F.3d 121, 123 (D.C. Cir. 2004) (“Amtrak”) (quoting Hawaiian

Airlines v. Norris, 512 U.S. 246, 252 (1994)). A minor dispute, in contrast, turns on “the proper

meaning or application of an existing [collective bargaining] agreement.” Eastern Air Lines II,

869 F.3d at 1524. It “contemplates the existence of a collective bargaining agreement,” Elgin, J.

& E. Ry. v. Burley, 325 U.S. 711, 723 (1945), and “may be conclusively resolved by interpreting

the existing agreement,” Consolidated Rail, 491 U.S. at 305. In short, “major disputes seek to

create contractual rights, minor disputes to enforcement them.” Id. at 302.

As the plaintiff in this action, Atlas is entitled to some leeway in how it defines the

dispute that it brings to the Court; the starting point is the wrong that Atlas contends it is

suffering. That wrong, as Atlas describes it, is the Union’s concerted effort to change pilot

behavior—to SHOP, BOOT and the like—in order to bring economic pressure to bear on the

company in the current CBA negotiations. Because those ongoing contract negotiations

indisputably constitute a major dispute, Atlas posits that the alleged slowdown grows out of a

major dispute and is, therefore, subject to the RLA’s status quo obligation. The company,

moreover, builds on this starting point by disavowing any dispute with the Union—at least for

purposes of this case—about the meaning or application of the existing CBA. Dkt. 49 at 21

(quoting Elgin, 325 U.S. at 723). It does not, for example, premise its claim on an allegation that

the Union is acting in violation of the CBA or that the CBA authorizes the relief that it seeks.

Rather, according to Atlas, its claim is based exclusively on the status quo obligation contained

in the RLA and the contention that the Union seeks to alter the status quo for purposes of

affecting an ongoing major dispute.

23

As the Supreme Court has emphasized, there is, of course, “a danger in leaving the

characterization of [a] dispute solely in the hands of one party.” Consolidated Rail, 491 U.S. at

306. If that party’s theory of the case is “insincere” or “founded upon . . . insubstantial grounds,

. . . honoring [its] characterization” could “undercut” the “the proper functioning of the [RLA].”

Id. (citation omitted). Here, however, Atlas backs up its characterization of the dispute with

substantial evidence that the Union has encouraged its pilots to alter the status quo in order to

exert economic leverage in the ongoing contract negotiations. Three examples are sufficient to

make the point.

First, during a call with members on February 2, 2016, days before the Union served its

Section 6 notice and after preliminary negotiations had begun, Captain Kirchner and other

members of the Atlas Pilots’ Executive Committee unambiguously tied the Union’s alleged

slowdown to the CBA negotiations. In the words of one member of the Executive Committee,

“the only way we’re going to get to the next contract is if we stop helping the Company and start

helping the Negotiating Committee.” Dkt. 29-1 at 3 (1:12–15). The same member of the

Executive Committee also told the member pilots: “The most important [thing] we can advise

everybody on the call today is stop helping the Company. You’re not a travel agent. You’re not

a hotel clerk. You’re not a transportation service. The minute we start doing our job and our job

only, that will bring more pressure on the Company to stop their behavior, hold them

accountable, and help our Negotiating Committee.” Id. at 4 (2:8–16). To this, he added:

“Everything we are asking you to do moving forward is counterintuitive to operating our

business. But it’s the only way that our negotiators are going to have the leverage as we keep the

pressure on, stopping . . . helping the Company.” Id. at 10 (8:3–8). Captain Kirchner echoed

this point, telling members: “When you’re out there doing your job, you’re also at the

24

negotiating table. And every time they out-negotiate you by getting you to violate the CBA and

getting you to do their job for them, they win at the negotiating table.” Id. at 12 (10:15–20).

Second, in late June 2016, a Union leader began an ATAM by informing members that

the Union was approaching “the most critical time yet for our group. That time is the approach

of the amendable date of our current Collective Bargaining Agreement, or the CBA. And while

the vast majority of you have shown our particular giant how we can SHOP and BOOT and even

buckle down and say, first you pay me, there are still some others who just don’t seem to get it.”

Dkt. 5-24 at 2 (1:20–2:6). During that same ATAM, he added:

As of the recording of this ATAM, there are no future meetings scheduled with the
management in Purchase for continued negotiation of our next CBA. Time will
tell, but we are in for a long fight for a fair contract. But believe me, it will be
worth it. Very worth it, indeed. Your [Executive Committee] also wishes to remind
you that your adherence to the [existing] CBA and all the things each and every one
of you are doing daily are having a tremendous affect and it’s working.

Id. at 3 (7:3–13).

Third, taking a more recent example, a June 23, 2017 Chairman’s Update once again tied

the Union activity that Atlas seeks to enjoin to the ongoing contract negotiations. In that

communication, Captain Kirchner wrote:

Finally, let me talk about the company’s strategy of trying to wear you out. Atlas
Executives believe that if they delay a new CBA long enough, you will lose your
interest and your resolve and start violating the CBA, cutting corners and resign
yourselves to the status quo and abandon our quest for an industry-leading CBA.
This cannot be the case! YOU must SHOP, BOOT and push back on their tactics
harder than ever as we are starting to get the movement we desire. We are getting
into the busy season during the second half of the year and it is now more important
than ever to stay strong with your SOLIDARITY. YOU must not only honor the
CBA every day and on every flight, but also hold management accountable.

Dkt. 5-66 at 4.

Many other communications in the record sound the same theme: Union members

should strictly apply the existing CBA, should not do anything more than is required, should stop

25

helping the company, and should not block out early—all for the purpose of providing Union

negotiators with added leverage in the ongoing contract negotiations. The Court, accordingly,

finds that the Union and Atlas are involved in what is undeniably a major dispute—that is,

negotiations over changing the CBA; that Atlas is not seeking to enforce any provision of the

existing CBA in this case; and that the actions that Atlas does challenge are directed at the

ongoing CBA negotiations. Although the mere fact that a collective bargaining agreement has

expired and the parties are engaged in contract negotiations does not “automatically” render

every dispute between the company and the union a major one, Eastern Air Lines I, 863 F.2d at

899, the status quo obligation does extend to strikes, slowdowns, and similar tactics employed to

exert economic pressure on any such major-dispute negotiations, Amtrak, 373 F.3d at 126.

Atlas, accordingly, is on firm ground in characterizing the present dispute as a major one.

The Union disagrees. In its view, this case is controlled by the Supreme Court’s decision

in Consolidated Rail, and, in particular, by the Court’s admonition that “[t]he distinguishing

feature of” a minor dispute “is that the dispute may be conclusively resolved by interpreting the

existing agreement.” 491 U.S. at 305. Indeed, according to the Union, all that is required to

avoid characterization of a dispute as major is a “claim [that] is neither obviously insubstantial or

frivolous, nor made in bad faith” that the activity at issue is “justified by the terms of the parties’

agreement.” Id. at 310. Here, according to the Union, that condition is satisfied for two reasons:

First, the CBA itself bars the Union from engaging in slowdowns and permits the company to

file a grievance if confronted with such Union action. Second, the CBA can be plausibly

construed to authorize the conduct that Atlas challenges. Either of these reasons, the Union

argues, make the dispute a minor one, divesting the Court of subject matter jurisdiction under

Section 204 of the RLA. See Oakey v. Airways Pilots Disability Income Plan, 723 F.3d 227,

26

234, 237 (D.C. Cir. 2013) (“Section 204 refers to arbitration of . . . those ‘disputes . . . growing

. . . out of the interpretation or application of [existing] agreements;’” and “[t]he statutory

language ‘clearly states’ that the arbitration requirement is jurisdictional.”). The Court is

unconvinced.

As an initial matter, the Court is unpersuaded by the Union’s reading of Consolidated

Rail. That case dealt with a very different question from the one presented here. In

Consolidated Rail, Conrail announced a unilateral change in its drug testing practices; while it

had previously included drug testing in some periodic and return-from-leave physical

examinations, Conrail decided to include the test in all periodic and return-from-leave

examinations. 491 U.S. at 300. In that context, the Court grappled with the “close” question

whether the change in practice constituted a minor dispute—that is, a dispute about the meaning

and application the existing agreement—or a major dispute—that is, a dispute over what was, in

effect, an alteration or amendment to the agreement. Id. at 301–02. Neither party contested that

the dispute was about the meaning of the CBA’s terms; the union’s argument that the dispute

was major relied instead on the position that the company’s interpretation was “simply not

plausible.” Id. at 315–16.2 Ultimately, the Court held that Conrail’s contention that its new

practice was supported by the existing contract was not “frivolous” or “obviously insubstantial”

and that, as a result, the dispute was best characterized as a minor one over which the Court

lacked jurisdiction. Id. at 320.

This case, in contrast, is not about whether Union members may—in the abstract—

SHOP, BOOT, or call in sick on short notice; whether the CBA permits such conduct; or whether

2
The union’s primary argument, which advocated for the creation of a third category of
disputes, was rejected by the Court. Consolidated Rail, 491 U.S. at 310.

27

the Union’s efforts might implicitly effect an amendment to the CBA. Rather, it is about

whether the Union may engage in a concerted campaign to alter the status quo (by SHOP-ing,

BOOT-ing and the like) in the midst of what is unmistakably a major dispute (the negotiation of

a new CBA) in order to apply economic pressure on the company in those negotiations.

Significantly, the Union has failed to identify any case holding that concerted union activity that

alters the status quo for the purpose of exerting economic pressure on a company engaged in

collective bargaining negotiations constitutes a minor dispute.

Those cases that have considered the question, moreover, are uniform in holding that

strikes, slowdowns, and similar conduct targeted at an ongoing, major dispute violates the status

quo obligation contained in the RLA. In a discussion cited with approval by the D.C. Circuit, the

Seventh Circuit explained that “[t]here is no question that the RLA’s status quo requirement is

intended to prevent a strike during the cooling-off period” and that this principle extends to other

conduct that “has the consequences of a strike.” Air Line Pilots Ass’n, Int’l v. United Air Lines,

802 F.2d 886, 906 (7th Cir. 1986) (cited with approval in Amtrak, 373 F.3d at 126). Thus, as the

Seventh Circuit further explained, the RLA’s status quo obligation prevents “[t]he concerted

refusal of overtime, slow[]downs, sit-ins, strikes and other harassments by [the union and its

members].” Id. (citation omitted). Other courts have extended this same logic to concerted

refusals to fly overtime or to volunteer for unscheduled open time, Delta Air Lines v. Air Line

Pilots Ass’n, Int’l, 238 F.3d 1300, 1307–08 (11th Cir. 2001); safety campaigns, United Air Lines

v. Int’l Ass’n of Machinists & Aerospace Workers, 243 F.3d 349, 362 (7th Cir. 2001); abusive

use of sick leave, Air Line Pilots Ass’n, Int’l, 802 F.2d at 905; increases in pilot fatigue calls, US

Airways v. U.S. Airline Pilots Ass’n, 813 F. Supp. 2d 710, 731 (W.D.N.C. 2011); longer taxi

times, id.; increased write-ups of maintenance problems, id.; and programs “to follow the rules

28

strictly,” Long Island R.R. Co. v. Sys. Fed. No. 156, 368 F.2d 50, 52 (2d Cir. 1966); see also

United Air Lines, 243 F.3d at 366. Under this view of the RLA, the relevant question is whether

the Union is orchestrating a slowdown or similar campaign that “grows out of the major

dispute,” Amtrak, 373 F.3d at 126, and that “is designed to put economic pressure on the carrier,”

US Airways, 813 F. Supp. 2d at 730. If so, a court may enjoin the campaign.

The Union suggests that this case is distinguishable from this line of authority because

Section 26.X of the Atlas pilots’ current CBA contains an express prohibition on strikes,

slowdowns, and concerted refusal to work normal overtime, and Section 20.D of the CBA allows

the company to file a grievance over the interpretation or application of the existing CBA. Dkt.

51-1 at 6–10. According to the Union, these provisions show that “the parties clearly intended to

arbitrate ‘slowdown’ disputes and disputes over alleged ‘concerted refusals to work normal

overtime’” and, thus, the present dispute is at least arguably covered by the parties’ contract. Id.

at 7. Because the dispute can therefore be resolved by applying the existing CBA, the Union

continues, the dispute is a minor one.

That contention, however, is unconvincing. As an initial matter, it once again ignores the

substance of Atlas’s claim. Atlas’s claim is not that the Union is violating the CBA, but rather

that it is violating the RLA by engaging in a concerted campaign to alter the status quo—

regardless of whether the CBA allows or prohibits that conduct. Nor is this a case in which “the

conduct giving rise to an alleged status quo violation is arguably permitted by the CBA” or

which requires interpretation of the CBA. Delta Air Lines, 238 F.3d at 1307 n.17. To the

contrary, neither Atlas nor the Union contends that the CBA permits slowdowns. What the

Union does argue is that, even if a slowdown is unlawful under the CBA and the RLA, Atlas

can—and therefore must—bring its challenge under the CBA grievance procedure.

29

That argument, however, conflates the question whether the dispute is a major or minor

one within the meaning of the RLA with the question whether Atlas has made “every reasonable

effort to settle [the] dispute” within the meaning of the NLGA. See 29 U.S.C. § 108. But, as

explained in greater detail below, regardless of how the argument is framed, it cannot be

reconciled with the considered balance that Congress struck in the status quo provisions of the

RLA. Those provisions were enacted to “to avoid any interruption[s] to commerce or to the

operation of any carrier engaged therein,” 45 U.S.C. § 151a(1); “to promote stability in labor-

management relations by providing a comprehensive framework for resolving labor disputes,”

Hawaiian Airlines, 512 U.S. at 252; and “to compel dialogue and concessions” in major disputes,

Van Wezel Stone, Labor Relations on the Airlines at 1497–98. Yet, taking the Union’s theory to

its logical conclusion, as long as a union can make a plausible argument that, as alleged by the

employer, its conduct violates the existing CBA, it can avoid the RLA’s status quo obligation

and force the company to pursue its claims of misconduct through the grievance and arbitration

process. That would mean, for example, that if the Union were to respond to the company’s

latest offer regarding wages and terms of employment with a strike, the dispute would be a minor

one given the no-strike clause in the CBA. Indeed, under the Union’s theory, the same would be

true of any slowdown or similar, concerted action. That, however, proves too much. Even if the

RLA “allows parties to follow their own contractually negotiated procedures for amending their

collective bargaining agreements in lieu of the lengthy procedures set forth in the statute,” Air

Line Pilots Ass’n v. Alaska Airlines, Inc., No. C05-0897L, 2005 WL 2898140, at *1 (W.D.

Wash. Oct. 28, 2005), it does not permit the parties to jettison the statute entirely and to engage

in precisely the type of conduct that Congress intended to avoid, see United Air Lines, 243 F.3d

at 364.

30

Finally, in a variation of its minor dispute argument, the Union makes glancing reference

to provisions of the existing CBA that, in its view, permit or authorize the conduct that Atlas

seeks to enjoin. It argues, for example, that the existing CBA bars pilots from refusing to work

“‘normal’ overtime,” giving rise to an inference that pilots may refuse to work “unusual

overtime.” Dkt. 56 at 10. But that position, once again, misunderstands the nature of Atlas’s

claim. Atlas is not arguing that certain pilots were required to work overtime, or to volunteer for

open time, under the existing CBA. Nor is it arguing that certain pilots violated the CBA by

blocking out at the last minute or by calling in sick or fatigued. Rather, it is claiming that the

Union is violating the RLA by encouraging its members to engage in a concerted effort to do

less—to stop helping out Purchase—in order to obtain leverage in the ongoing contract

negotiations. That claim is not dependent on whether the underlying conduct is prohibited by the

existing CBA but, rather, turns on whether the Union has orchestrated a concerted change in the

status quo to influence the negotiations. See Delta Air Lines, 238 F.3d at 1307–08; cf. Elevator

Mfrs.’ Ass’n of New York, Inc. v. Local 1, Int’l Union of Elevator Constructors, 689 F.2d 382,

386 (2d Cir. 1982) (“That the overtime was designated as voluntary in the contract does not . . .

render the concerted refusal to perform it any less a strike.”) (citation omitted).

The line between major and minor disputes is not always crystal clear. See Van Wezel

Stone, Labor Relations on the Airlines at 1506. Ultimately, however, the Court must make a

practical assessment of the nature of the dispute and must evaluate how it fits within the

“integrated, harmonious scheme” that Congress enacted. Shore Line, 396 U.S. at 152. Applying

that approach here, the answer is—in fact—clear. We know that major disputes arise “out of

efforts to form or change . . . collective bargaining agreement[s],” Eastern Air Lines II, 869 F.2d

at 1524, while minor disputes “involve[] a controversy over the interpretation or application of

31

[an existing] agreement[],” Amtrak, 373 F.3d at 124 (internal quotation marks omitted). We

know that Atlas and the Union are in the midst of negotiating a new CBA and that the Union’s

STOP, BOOT, and other efforts are intended to improve the Union’s position in those

negotiations. We know that Atlas is not seeking to enforce any right found in the existing CBA,

but, rather, contends that the Union is acting in violation of the RLA. And, we know that that

Union (quite obviously) does not contend that the CBA prohibits any of the conduct at issue but,

rather, merely contends that it provides a mechanism that Atlas could invoke to seek redress.

Under these circumstances, the Court must conclude that the alleged slowdown “grows out of the

major dispute between” the parties, Amtrak, 373 F.3d at 126, and is, therefore, subject to the

RLA’s status quo obligation.

2. Plaintiff Has Met the Requirements of the Norris-LaGuardia Act

Alternatively, the Union argues that, even if the present dispute is a major one, the Court

still lacks jurisdiction because Atlas has failed to comply with the procedural requirements

contained in Sections 8 and 7(e) of the NLGA. The Court will address each provision in turn.

a. Section 8

Section 8 of the Norris-LaGuardia Act provides:

No restraining order or injunctive relief shall be granted to any complainant who
has failed to comply with any obligation imposed by law which is involved in the
labor dispute in question, or who has failed to make every reasonable effort to settle
such dispute either by negotiation or with the aid of any available governmental
machinery of mediation or voluntary arbitration.

29 U.S.C. § 108. Actions to enjoin violations of the RLA are “subject to Section 8” of the

NLGA because the requirements of that section “further the effectuation of” the RLA. Bhd. of

R.R. Trainmen v. Akron & Barberton Belt R.R. Co., 385 F.2d 581, 613–14 (D.C. Cir. 1967).

Section 8 promotes compliance with the RLA by ensuring that a party “cannot seek an injunction

until and unless it has discharged the obligations imposed by the Railway Labor Act.” Id. at 614.

32

Section 8 creates two distinct hurdles to seeking injunctive relief. The first hurdle,

known as the “clean hands” requirement, see id. at 613–14, divests the federal district courts of

jurisdiction to grant injunctive relief “to any complainant who has failed to comply with any

obligation imposed by law which is involved in the labor dispute in question,” 29 U.S.C. § 108.

The Union only gestures at the “clean hands” requirement in its presentation of the evidence, see,

e.g., Dkt. 31-2 at 16–17, 19–21, 32–33 (describing alleged company violations of CBA), and it

does not advance the point in its briefs. The Court, accordingly, has no basis to find that Atlas

has failed to “comply with all . . . legal obligations relevant to the dispute,” Rutland Ry. v. Bhd.

of Locomotive Eng’rs, 307 F.2d 21, 39 (2d Cir. 1962), and thus cannot conclude that the

company’s “unclean hands” divest the Court of jurisdiction to issue a status quo injunction.

The argument that the Union actually advances implicates Section 8’s second hurdle to

granting injunctive relief—that, prior to seeking an injunction, the movant must make “every

reasonable effort” to resolve the dispute by negotiation, mediation, or voluntary arbitration. 29

U.S.C. § 108. That requirement echoes the duty found in the RLA that “both parties . . . make

every reasonable effort to settle a dispute, whether it be major or minor.” Rutland Ry., 307 F.2d

at 38. Atlas, for its part, does not dispute that it was required to make reasonable efforts to

resolve the present dispute before applying for an injunction, and it contends that it has done all

that is required. Dkt. 52 at 18–20. The Union disagrees, arguing that Atlas has fallen short in a

number of ways: it has failed to take advantage of the CBA’s grievance and arbitration

procedures to raise its slowdown and concerted refusal to work overtime claims; it has failed to

seek to discipline any pilots for allegedly abusing the sick leave and fatigue rules or ordered that

the pilots block out early; it has “never shared any evidence substantiating” its claims with the

33

Union; and it has not sought the assistance of mediators provided by the NMB. Dkt. 51-1 at 15–

17.

In applying the NLGA’s “every reasonable effort” requirement, the Court must once

again consider how the NLGA applies to cases brought under the RLA. Here, however, the

tension between the two statutes is less evident, and, indeed, both statutes—at least at times—

share a common goal of “encourag[ing] use of the nonjudicial processes of negotiation,

mediation and arbitration for the adjustment of labor disputes.” Bhd. of R.R. Trainmen, 321 U.S.

at 58–59. The D.C. Circuit has recognized that, in most cases, strict enforcement of the NLGA’s

“every reasonable effort” requirement does “not trammel, but . . . rather further[s] the

effectuation of the Railway Labor Act, for it ensures compliance by complainant carrier[s] or

union[s,] which cannot seek an injunction until and unless [they have] discharged the obligations

imposed by the Railway Labor Act.” Bhd. of R.R. Trainmen, 385 F.2d at 614. In some cases,

however, “the imperatives of the Railway Labor Act [might] override Section 8” and courts must

balance competing interests, “particularly where . . . the public interest [is] involved.” Id.

Although “the precise requirements of” the Section 8 obligation “vary from case to case,

there are ‘certain minimum steps’ that are usually required.” Aircraft Serv. Int’l v. Int’l Bhd. of

Teamsters, 779 F.3d 1069, 1077 (9th Cir. 2015). In particular:

Unfair surprise should be avoided whenever possible. The representatives of
management should meet with those of labor. Each side should listen to the
contentions of the other side and each side should explain its position clearly and
honestly, but not for as long a time is customary in full-scale bargaining. In short,
men of good faith must in good faith get together in a sincere effort to resolve their
differences.

Id. (quoting Rutland Ry., 307 F.2d at 41). This means that, before going to court, a party must do

more than “discharge his legal obligations.” Bhd. of R.R. Trainmen, 321 U.S. at 57. “He must

also go beyond [those legal obligations] and make all reasonable effort, at the least by the

34

methods specified if they are available, though none may involve complying with any legal

duty.” Id. This includes “the normal” modes “for settlement of labor disputes by the efforts of

the parties themselves and the aid of agencies adapted specially for the purpose,” including “the

aid of governmental machinery” provided in the RLA for “mediation and arbitration.” Id. at 57–

58.

In pressing their respective arguments, Atlas and the Union characterize the relevant

“dispute” for purposes of Section 8 in very different terms. According to the Atlas, the dispute

that it was required to make reasonable efforts to settle before bringing this suit was (and is) the

dispute over whether and how to amend the existing CBA. Dkt. 49 at 25–26. It then argues—

persuasively—that it has made reasonable efforts to settle that dispute. Most notably, all agree

that Atlas and the Union reached a “Protocol Agreement” in June of this year, setting forth a

process for direct negotiations on a new CBA. Dkt. 5-3 at 6–7; Dkt. 48 at 4. The evidence also

shows that those direct negotiations are ongoing, Dkt. 48 at 4, and that the Protocol Agreement

was greeted by the Union as a step forward in the negotiations, Dkt. 28-13 at 4–5 (2:4–3:4).

Rather than take on this showing of reasonable efforts, the Union contends that the

relevant dispute can be found in Atlas’s claim that the Union has orchestrated a slowdown, and it

contends that the company could have done more to settle or to avoid that dispute. Dkt. 51-1 at

15–17. It could have filed a grievance under the existing CBA, possibly leading to arbitration of

the dispute. Id. It could have taken disciplinary action against the pilots allegedly involved in

the slowdown. Id. It could have ordered pilots to block out early, if possible. Id. And, it could

have provided the Union with more detail to back up its claim that the Union is orchestrating a

slowdown. Id. Although for different reasons, the Court is unpersuaded by each of these

contentions.

35

As an initial matter, the Court concludes that Atlas’s characterization of the relevant

dispute is more apt. A similar issue arose in United Air Lines, Inc. v. International Ass’n of

Machinists and Aerospace Workers, 243 F.3d 349 (7th Cir. 2001). In that case, the parties were

engaged in a major dispute involving the negotiation of a new collective bargaining agreement,

and the airline accused the union of staging a slowdown to affect the ongoing negotiations. Id. at

353. Invoking Section 8, the union argued that the district court lacked jurisdiction because the

airline had “made no virtually no attempt to resolve the slowdown through negotiations . . .

before it filed suit.” Id. at 364. The Seventh Circuit disagreed, explaining:

Section 8 requires a party to a labor dispute to “exert every reasonable effort” to
settle the labor dispute in question (through negotiation, mediation or arbitration)
before seeking to enjoin an action by the other party which relates to the dispute.
It does not require a party who is already engaging in good-faith effort to settle the
labor dispute through negotiation, mediation, or arbitration to “exert every
reasonable effort” to prevent or end an unlawful strike or work action before
seeking judicial relief. Indeed, requiring a carrier to seek a negotiated solution
before moving to enjoin an illegal work action would enable unions to use such
actions to extort concessions from the carrier during the negotiation process. Such
a result would render the union’s duty under 45 U.S.C. § 152, First a nullity, and
would run directly contrary to the policy rationales of the RLA’s status quo
provisions.

Id. at 364–65 (emphasis in original). The same holds true here. All concede that Atlas and the

Union are engaged in contract negotiations that are protected by the RLA’s status quo obligation.

To the extent the Union is engaged in a slowdown that is targeted at those negotiations, it is

acting in violation of the RLA, and requiring that Atlas negotiate with the Union about that

violation of federal law runs counter to the terms and purposes of the RLA.

More generally, the Court is also unconvinced that Atlas’s failure to file a grievance

under Section 26.X of the existing CBA bars the company from seeking a status quo injunction.

As noted above, the D.C. Circuit has recognized that Section 8’s “every reasonable effort”

requirement is not absolute and that, at times, “the imperatives of the” RLA and the public

36

interest may counsel against strict application of Section 8. Bhd. of R.R. Trainmen, 385 F.2d at

614. Other courts share that assessment. In the words of the Seventh Circuit, “[t]he Norris-

LaGuardia Act has never been construed to bar an injunctive remedy when such relief is

necessary to reach important objectives of federal labor law.” Air Line Pilots Ass’n, 802 F.2d at

901. Rather, the Court must “weigh the competing equities to determine whether applying

[S]ection 8’s bar to injunctive relief would serve to further underlying purposes of both the RLA

and the Norris-LaGuardia Act.” Id.

Here, it is difficult to comprehend how the purposes of the federal labor laws would be

served by precluding Atlas from seeking judicial intervention until after it files a grievance and

starts the process of arbitrating its contention that the Union is engaged in an unlawful

slowdown. Simply putting Atlas to that task—and the attendant delay and uncertainty—would

add pressure on the company in the ongoing contract negotiations in contravention of the

purpose of the RLA’s status quo obligation. Moreover, one of two results would likely follow:

either the Union would be permitted to continue to engage in a slowdown while that process

unfolded, which would undermine an important protection contained in the RLA, or Atlas would

be able to obtain an injunction in aid of arbitration, which would run counter to the NLGA’s

aversion to judicial intervention in ongoing labor disputes.3 In short, requiring that Atlas jump

through additional hoops before obtaining relief from a status quo violation would run counter to

the purposes of the RLA and would, at best, raise the same type of concern under the NLGA

raised by the present dispute.

3
It is uncertain whether Atlas would be able to obtain an injunction in aid of arbitration under
the governing D.C. Circuit precedent, which authorizes minor dispute injunctions “only when . . .
necessary to preserve the arbitrator’s ability to decide the dispute.” Eastern Air Lines II, 869
F.2d at 1520 n.2.

37

Finally, to the extent the Court is required to balance the purposes of Section 8 and the

status quo obligation contained in the RLA, the Court concludes that Atlas has made efforts to

resolve the slowdown short of litigation. It contacted Union officers in December 2016 and May

2017 to request that the slowdown be stopped, and counsel for Atlas made the same request of

counsel for the Union in June 2017. Dkt. 49 at 27. Requiring that Atlas take steps beyond this to

discipline pilots for engaging in the alleged slowdown would render the status quo obligation

illusory, because “in virtually every case an employer presumably could take some such

measures.” United Air Lines, Inc., 243 F.3d at 363–64. And, requiring that Atlas present the

Union with its evidence that the Union is engaged in a slowdown or order its pilots to block out

early would do nothing to promote settlement. The Union is presumably aware of what it is and

is not doing, and the BOOT campaign is just one element of the alleged slowdown. Id. at 417.

The Court, accordingly, concludes that Section 8 of the NLGA does not present a

jurisdictional bar to the present suit.

b. Section 7(e)

The Union also briefly argues that Atlas has failed to comply with Section 7(e) of the

NLGA because it has not demonstrated “[t]hat the public officers charged with the duty to

protect complainant’s property are unable or unwilling to furnish adequate protection.”4 29

U.S.C. § 107(e). The plain language of that provision, however, makes clear that it applies only

in cases involving a potential threat to the complainant’s person or property. Decisions

4
The Union also contends that Atlas has not complied with Section 7(a) of the NLGA. That
provision requires, prior to the issuance of a labor injunction, proof that “unlawful acts have been
threatened and will be committed unless restrained or have been committed and will be
continued unless restrained.” 29 U.S.C. § 107(a). It is unclear whether Section 7(a) applies at all
to the present dispute given the problems attendant with applying 7(e), but even assuming it
does, the Court’s ultimate conclusion that a preliminary injunction is proper would decide the
issue. See Dkt. 51-1 at 13.

38

confronting the meaning and scope of Section 7(e) support this conclusion. See ABX Air, Inc. v.

Int’l Bhd. of Teamsters, No. 16-CV-1096, 2016 WL 7117388, at *3 (S.D. Ohio Dec. 7, 2016)

(“Section 107(e) only applies to cases where there is a threat of physical violence.”); Illinois

Cent. R.R. Co. v. Bhd. of Maint. of Way Emps., 79 F. Supp. 3d 846, 854 (N.D. Ill. 2015) (finding

Section 7(e) “inapplicable” in a case not presenting the threat of violence); cf. Green v.

Obergfell, 121 F.2d 46, 53–54 (D.C. Cir. 1941) (holding that Section 7(e) barred issuance of an

injunction where plaintiff failed to show officers were unable to furnish “adequate protection”

against “violence and destruction of property”). As a result, Section 7(e) does not pose an

independent bar to injunctive relief in this case.

* * *

The Court, accordingly, concludes that it has jurisdiction to consider Atlas’s motion for a

preliminary injunction, Dkt. 5, and will deny the Union’s motion to dismiss for lack of

jurisdiction, Dkt. 51.

B. Atlas’s Motion for a Preliminary Injunction

In the ordinary course, a party seeking a preliminary injunction bears the burden of

showing that it “is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in

the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an

injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

Courts, moreover, have “frequently . . . observed that a preliminary injunction is an extraordinary

and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries

the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (D.C. Cir. 1997) (emphasis

omitted) (quoting 11A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure:

Civil § 2948 (2d ed. 1995)). The NLGA and RLA, however, introduce two twists on the usual

rules. First, Section 6 of the NLGA provides that “[n]o officer or member of any association or
39

organization, and no association or organization participating or interested in a labor dispute,

shall be held responsible or liable in any court of the United States for the unlawful acts of

individual officers, members, or agents, except upon clear proof of actual participation in, or

actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.”

29 U.S.C. § 106 (emphasis added). This standard applies to the Court’s consideration of whether

the Union is responsible for the actions of its members. See Ramsey v. United Mine Workers of

Am., 401 U.S. 302, 309 (1971). Section 6 “is not addressed to the quantum of evidence required

to prove the occurrence of the alleged ‘unlawful acts.’ It is concerned only with requiring ‘clear

proof’ that the person or organization charged actually participated in, authorized, or ratified

‘such acts.’” Id.; see also United Air Lines, 243 F.3d at 366.

Second, an injunction under the RLA does not require evidence of irreparable injury. See

Consolidated Rail, 491 U.S. at 303 (“The district courts have subject-matter jurisdiction to enjoin

a violation of the status quo pending completion of the required procedures, without the

customary showing of irreparable injury.”); see also S. Ry. Co. v. Bhd. of Locomotive Firemen &

Enginemen, 337 F.2d 127, 133–34 (D.C. Cir. 1964) (holding irreparable injury showing

unnecessary for preliminary injunction under RLA status quo provision); Gate Gourmet, 377 F.

Supp. 2d at 59–60 (same). As other courts have done, however, the Court will nonetheless

briefly address the irreparable injury prong out of an abundance of caution. See Davenport v.

Int’l Bhd. of Teamsters, 166 F.3d 356, 367 (D.C. Cir. 1999) (evaluating existence of irreparable

injury); Alton & S. Ry. Co. v. Bhd. of Maint. of Way Emps., 883 F. Supp. 755, 765 (D.D.C. 1995)

(same).

1. Likelihood of Success on the Merits

As a first and indispensable step, Atlas must demonstrate that it is likely to succeed on

the merits of its claim that the Union has violated the RLA’s status quo requirement. See 45
40

U.S.C. §§ 152, 156. In order to satisfy the further requirements of the NLGA, moreover, Atlas

must also demonstrate with “clear proof” that any likely status quo violations are traceable to the

Union’s actions. 29 U.S.C. § 106. The Court addresses in turn each of the alleged violations

that Atlas has proffered.

a. Short-Notice Sick Calls

Atlas asserts that, since late 2016, a pattern has emerged of Union members calling in

sick at the last moment with far greater frequency than during the preceding three years, Dkt. 5-

103 at 23, and it posits that they have done so at the instigation of the Union, Dkt. 5-2 at 25.

Calling in sick on short notice—that is, on the day the pilot is scheduled to fly—is more likely to

disrupt company operations than calling in one or more days ahead of time, because a

replacement crew member is often not immediately available. Dkt. 5-3 at 7–8; Hearing Tr. Day

1 (121:6–8); Hearing Tr. Day 2 (64:19–65:6). According to Atlas, the resulting delays have led

to missed shipping deadlines, have left passengers stranded, and have prompted customer

complaints, thus causing Atlas both economic and reputational harm. Dkt. 5-3 at 8–10. The

parties generally agree that short-notice sick calls are disruptive. They disagree, however, about

whether they have materially increased since the CBA negotiations commenced and, if so,

whether the Union’s SHOP campaign is to blame. Accordingly, to meet its burden on this aspect

of its claim, Atlas must first demonstrate that it is likely to succeed at trial in showing by a

preponderance of the evidence that the rate of short-notice sick calls has deviated from the

historical rate—that is, that there has been a change in the status quo—and must then show by

clear proof that the Union is responsible for that change.

Atlas initially offered both anecdotal and statistical evidence to support its contention that

short-notice sick calls have (1) disrupted operations; (2) occurred more often; and (3) increased

because of Union action in violation of the status quo. See, e.g., id. (anecdotal evidence); Dkt. 5-
41

103 at 22–26 (statistical evidence). The Union responded with evidence that legitimate

explanations existed for most, if not all, of the calls offered as examples by Atlas. See Dkt. 31-

23 (declaration of crew member referenced in complaint describing incorrectly coded sick call);

Dkt. 31-24 (declaration of crew member involved in scheduling rebutting several of the claimed

examples through reference to scheduling data); Dkt. 31-25 (declaration of crew member

referenced in complaint describing sickness); Dkt. 31-26 (same); Dkt. 31-28 (same); Dkt. 31-29

(same); Dkt. 31-30 (same); Dkt. 31-31 (same). In light of the Union’s rebuttal of the specific

examples offered by Atlas, the company conceded at the hearing that it has not, in fact, produced

any specific examples of abuse. Hearing Tr. Day 1 (34:25–35:20).

Atlas’s principal argument, however, does not turn on its anecdotal accounts of short-

notice sick calls, but rather focuses on statistical evidence of a material deviation from the

historical status quo starting on October 1, 2016. That statistical evidence shows that between

October 1, 2015 and September 20, 2016, only 13.8% of sick calls occurred on the same day the

crew member was scheduled to fly. Dkt. 5-103 at 25. Notably, the highest monthly percentage

of sick calls occurring on short notice during that time period was 18%. Id. at 24, Ex. 5. From

October 1, 2016 to September 20, 2017, in contrast, the average percentage of sick calls

occurring on the day of duty increased to 23.8%. Id. at 24–25 & Ex. 6. During that time span,

moreover, the monthly percentage of sick calls occurring with short notice never dropped below

18%, and in all but one month was 20% or higher. Id. at 24, Ex. 5. Based on his analysis of this

data, Atlas’s expert, Dr. Darin Lee, concluded that the increased percentage of same-day sick

calls beginning on October 1, 2016, was “not the result of random statistical variation, but rather,

a concerted change in behavior by Atlas’s pilots aimed at disrupting the Company’s operations.”

Id. at 26. The latter half of that statement, which addresses the subjective motivation of the

42

pilots, extends beyond the scope of what Dr. Lee’s analysis could have revealed. The Court

finds, however, that the data and Dr. Lee’s conclusion regarding the statistical significance of the

change show that Atlas is likely to succeed in proving that Atlas pilots have called in sick on

short notice more frequently since late 2016 than they did in the preceding three-and-a-half

years.

The Union, for its part, does not challenge Atlas’s showing that short-notice sick calls

have increased in frequency since late 2016 and, instead, argues that the total number of sick

calls has remained constant; that the increase in short-notice calls does not coincide with the

timing of the Union’s Section 6 notice; and that the increase in short-notice calls can be better

explained as the result of an increase in the total number of Atlas flights. Dkt. 31-3 at 5–6, 33–

36. Much of the Union’s response, however, misses the point of Atlas’s evidence. Through its

expert, Daniel Akins, the Union suggests that “[p]erhaps it would be more appropriate to

measure total pilot sick calls per departure to get a better sense of changes in pilot behavior.”

Dkt. 31-3 at 31. That, however, simply side steps Atlas’s claim that there has been a marked

increase in the percentage of short-notice sick calls—as opposed to an increase in total sick

calls. Mr. Akins’s analysis does demonstrate that the number of sick calls per departure

remained relatively constant, even though the proportion of sick calls made at the last minute

substantially increased. Compare Dkt. 31-3 at 31, Ex. 13, with id. at 32–34 & Ex. 15. But that

point, if anything, raises reasonable suspicions of abuse; that is, the Court is left to wonder why

the rate of last-minute sick calls would increase while the overall rate of sick calls remained

relatively constant.

43

Mr. Akins also criticizes Dr. Lee’s use of October 2016 to mark the onset of the change

in behavior instead of February 2016, which is when the Union served its Section 6 notice. Dkt.

31-3 at 35. He explains:

[T]his time-line does not correspond with Dr. Lee’s narrative of Union[-]
orchestrated behavioral changes beginning in February 2016. As can be seen, the
number of pilot short-notice sick calls drop[ped] during the first seven months after
February 2016 below the level experienced in the year prior, and was generally
increasing in the time prior to February 2016.

Id. That contention, however, does not disprove Dr. Lee’s assertion that the Atlas pilots have

engaged in a statistically significant change in the status quo—it just raises a question about

whether the Union prompted the change in order to exert pressure on the ongoing negotiations.

And, as discussed below, there is substantial evidence that the Union intentionally implemented

a don’t-fly-sick campaign to correspond with the 2016 holiday season to maximize its disruption.

Having found that Atlas has demonstrated a statistically significant increase in the

percentage of sick calls made on short notice, the next question is whether Atlas has met its

burden of providing “clear proof” that the change occurred at the Union’s instigation. Although

a close question, the Court concludes that Atlas has also met this burden.

Atlas’s most direct evidence can be found in several statements by Union officials urging

Atlas pilots not to fly sick. See Dkt. 27-4 at 33 (31:6–13); Dkt. 5-79 at 2; Dkt. 44-14 at 13

(12:1–14); Dkt. 5-10 at 2. Standing alone, those exhortations might not carry the day. But, when

read carefully and in light of the overall context—especially the SHOP campaign—it is evident

that at least some of the Union’s exhortations were tied to the ongoing labor dispute. One

example of the Union discussing flying sick comes in a message sent to “Atlas Crew Members”

from “The Stewards of Atlas, APA Teamsters Local 1224” on September 7, 2017. That message

told crew members: “As we find ourselves in the midst of a period of increased friction and

hostility, we remind everyone to make absolutely certain that you are fit for duty each and every
44

time you report to work. Please, do not fly sick or fatigued.” Dkt. 5-79 at 2. This is not a mere

safety message. It is an attempt to link the decision whether to call in sick to the ongoing

relationship between labor and management.

Another example can be found in an August 17, 2017 “negotiations update and leadership

webinar,” in which both Captain Kirchner and Chris Knox, the Union’s “negotiations chair”

appeared. Dkt. 44-14 at 2 (1:6–14). The Union’s Communications Chairman, Captain Griffith,

started the conversation by noting that “[t]he hot topic, obviously, today is negotiations and the

updates that we may have from those negotiations.” Id. at 3 (2:11–14). One pilot posed the

following question: “[A]ny chance we could have a contract by the fourth quarter? I hear a

rumor that the fourth quarter Flynn flu could be really bad,” referencing William Flynn, Atlas’s

CEO. Id. at 12–13 (11:20–12:2) (emphasis added). The remark is followed by laughter, and

Captain Kirchner then responds:

Yeah, we would certainly think that’s what we all want. There’s nothing better that
this Company could do than have all of its pilots pulling in the same direction
during a critical fourth quarter. Amazon, DHL, all these other companies are taking
notice, and it certainly would make good business sense to be able to perform at the
top level for these customers in the fourth quarter. But in order to do that, they are
going to have to do what they should have done by September 14 of 2016.

Id. at 13 (12:3–14). Significantly, Captain Kirchner does not take issue with the pilot’s

statement—made to all members who participated in the conversation—that “the fourth quarter

Flynn flu could be really bad.”

A final example of this kind of direct reference to not flying sick comes in a series of

videos that began in February 2016. These videos occasionally referenced flying sick within

discussions of fatigue, SHOP, and BOOT more generally. Dkt. 5-3 at 25. The first of these

began with the host saying that he called in sick last night for a flight from Huntsville to

Luxembourg. Dkt. 5-10 at 2 (1:7–8). He then pulls what appears to be a thermometer from the

45

corner of his mouth and says in a spoofing tone: “Oh no. It’s 105. Is that bad?” Id. (1:10–11).

Later in the same video, the host—again in a parodic tone—says that he is getting hot, and he

pulls a large rubber hot water bottle out of his shirt. Id. (1:15–16). Although arguably merely

intended to entertain, the message concludes with the slogan common in the Union’s

communications discussing SHOP and the creation of leverage: “It’s your CBA. They signed it.

You use it.” Id. (4:3–4).

To be sure, the Union has not expressly told its members that they should abuse their

right to take sick leave. But, it is clear that the Union understood the risks of delivering such an

explicit message. See, e.g., Dkt. 27-4 at 44 (42:3–19) (describing sick-out orchestrated by a

different union against a different airline, resulting in a $40 million fine). And, it is equally clear

that more explicit language was unnecessary. “An employer may meet the clear proof standard

with statistical evidence in combination with evidence of the union’s coded [or less than explicit]

communications to its members to engage in an unlawful job action.” United Air Lines v. Air

Pilots Ass’n, Int’l, 563 F.3d 257, 272 (7th Cir. 2009). Thus, phrases like “work safe,” “work by

the book,” and “fly the contract” may be sufficient when combined with statistical evidence. Id.

The Court, moreover, must consider the “content and tone” of the communications “in relation to

all of the other evidence about the job actions.” Id. at 273. Here, the “content and tone” of the

Union’s communications, the statistics, and the overall context satisfy the clear proof standard.

Finally, the references to not flying sick must be placed in the context of prior Union

actions and the SHOP campaign. To take a notable example, from December 16 to December

24, 2016, Atlas experienced a sharp increase in the percentage of B-767 pilots calling in sick.

Dkt. 5-3 at 10. During this period, the proportion of B-767 pilots calling in sick averaged five

percent, double the average proportion calling in sick for the remainder of 2016, and over fifty-

46

percent higher than the rate in the corresponding periods in 2015 and 2014. Dkt. 5-103 at 71–72.

The 2016 holiday sick-out, moreover, took place at the same time that the Union was picketing

Amazon and running an online advertising campaign questioning whether Amazon could deliver

on time because “there may not be enough pilots to deliver for Amazon around the holidays.”

Dkt. 5-3 at 10. Atlas uses its B-767 fleet to fly for Amazon. Id. Leaving little doubt about the

connection between the sick-out, the online advertising campaign noted that Amazon “Prime Air

will operate with 40 planes leased from” Atlas and another company, and it urged consumers to

“[g]ive one star for Amazon Prime Air and tell Amazon executives to make sure its contracted

pilots have a fair contract to ensure stability and that there are enough qualified pilots to get the

job done.” Dkt. 5-70 at 2–3. Although the 2016 sick-out ended with the holiday season, the

Union’s ongoing communications telling pilots not to fly sick—and the evidence of a significant

increase in short-notice sick calls—must be understood in light of this history.

Those communications must also be placed in the context of the Union’s SHOP

campaign, which is clearly tied to the ongoing contract negotiations. It does not require a giant

leap to infer from the Union’s appeals that its members stop helping the company in order to aid

in the ongoing negotiations that its often contemporaneous pleas that members not fly sick are

also been intended to apply pressure on the company in those negotiations. And, when the

Union’s statements are considered in light of the otherwise-unexplained significant increase in

the rate at which Atlas pilots have called in sick on short notice, the Court is left with little doubt

that the Union has encouraged the change in the status quo.

b. Fatigue Calls

Atlas also alleges that, at the Union’s urging, pilots have called in fatigued—and thus

unable to fly—with greater frequency since the Union served its Section 6 notice. See, e.g., Dkt.

5-103 at 27. According to Dr. Lee, Atlas averaged only 5.7 fatigue calls per 1,000 active pilots
47

on a monthly basis between July 2014 and January 2016. Id. That average, however, increased

to 16.3 fatigue calls per 1,000 pilots between February 16, 2016 (the date of the Section 6 notice)

and August 2017. Id. Dr. Lee further attests that in eight of the last eighteen months, the

monthly rate has exceeded 17.8 fatigue calls per 1,000 pilots and that “the probability of

observing eight or more months since the Union sent its Section 6 notice with ‘outlier’ rates of

pilot fatigue is less than one-in-600,000.” Id. And, finally, Dr. Lee posits that the increased rate

of fatigue calls cannot be attributed to the company’s expansion, to changes in the FAA rules

governing fatigue, or to higher rates of pilot utilization. Id. at 27–28. He notes, for example, that

the FAA “began requiring commercial airlines to have FAA[-]approved Fatigue Risk

Management Plans” more than five years before the Union served its Section 6 notice. Id. at 28

n.42.

The Union does not dispute Dr. Lee’s assertion that the rate at which Atlas pilots have

declined to fly due to fatigue has increased since February 2016, but it contends that the upward

trend in fatigue calls began in early 2015—well before the Union served its Section 6 notice—

and that the increase can be explained by reasons unrelated to the current labor dispute. Dkt. 31

at 61–62; Dkt. 31-3 at 36–41. In the Union’s view, the factual backdrop is more complicated

than Atlas suggests. The Union argues that the increase has been far from steady—and, indeed,

that there was a dramatic drop in fatigue calls in May and June 2016, Dkt. 48 at 18; that a joint

labor-management Fatigue Risk Management Committee “accepted” all of the fatigue calls at

issue, id. at 15; that each of the fatigue calls that Atlas questioned in its opening brief were, in

fact, legitimate, Dkt. 50 at 18; that the increased percentage of new pilots working for Atlas has

contributed to the increase in fatigue calls, id. at 20; that scheduling problems and other

management failings also contributed to the increase, Dkt. 31-2 at 25–26; and, finally, that

48

changes in the law governing pilot fatigue and implementation of a complicated regulatory

regime better explains the increase, id.; 31-4 at 5–10. Because the Court concludes that the

Union’s final point casts significant doubt on Atlas’s fatigue argument, the Court will limit its

discussion to that issue.

As the Union notes, in the wake of a 2009 crash of a regional aircraft that killed fifty

people, Congress enacted the Airline Safety and Federal Aviation Administrative Extension Act

of 2010, Pub. L. No. 111–216, 124 Stat. 2348 (codified in scattered sections of I.R.C. and 49

U.S.C.). Among other safety measures, that law required the FAA to issue enhanced regulations

“to address problems relating to pilot fatigue,” § 212(a)(1), and required air carriers to “submit to

the [FAA] for review and acceptance a fatigue risk management plan for the carrier’s pilots,”

§ 212(b). In response, the FAA issued a final rule on January 4, 2012, adding a new regulation

relating to pilot fatigue on commercial flights, see 77 Fed. Reg. 330-01 (Jan. 4, 2012), while

leaving the old rule—14 C.F.R. § 121—in place for cargo flights. The new, more demanding

regulation—14 C.F.R. § 117—requires that airlines adopt fatigue risk management plans and

provide their pilots with fatigue training, and it imposes a mandatory duty on pilots to report

when they are too fatigued to fly. 77 Fed. Reg. at 349.

Under the new “fitness for duty” regulation, “[e]ach flightcrew member” is required to

“report for any flight duty period rested and prepared to perform his or her duties,” and no airline

“may assign and no flightcrew member may accept assignment to a flight duty period if the

flightcrew member has reported for a flight duty period too fatigued to safely perform his or her

assigned duties.” 14 C.F.R. § 117.5. The FAA, moreover, declined to limit the determination of

“fitness for duty” to a series of objective standards, such as hours between flights, see, e.g., 14

C.F.R. § 117.25, but instead required that each pilot “utilize the information provided during his

49

or her statutorily-mandated fatigue training to self-assess whether he or she feels well-rested

enough to safely complete his or her assigned” flight duty period. 77 Fed. Reg. at 349–50.

Determination of “fitness for duty” is, accordingly, an inherently individual, subjective inquiry.

The Union suggests that the increase in fatigue calls is most likely attributable to the new

regulations for two reasons. First, Atlas is one of only two airlines that regularly flies both cargo

and passenger flights subject to the divergent fatigue rules. Dkt. 31-4 at 9. As a result, Atlas

pilots face the difficult task of applying distinct fatigue-mitigation requirements depending on

whether each particular flight is subject to the Part 121 rules governing cargo flights or the Part

117 rules governing passenger flights. That task is complicated, moreover, by the fact that—

unlike any other airline—Atlas pilots “are required to fly mixed operations during [a single]

monthly schedule[].” Dkt. 31-4 at 9. “In other words, Atlas pilots are required to operate ‘all

cargo’ flights for one or more consecutive days of their monthly trips, during which they are

subject to the FAA’s old, more exhausting hours of service and rest rules, and then, operate

passenger flights the next night or several nights, during which they are subject to the new . . .

Part 117 rules.” Id. Second, the new rules did not take effect until January 2014, and, since

then, Atlas pilots have become more aware of and comfortable with the new rules and Atlas’s

Fatigue Risk Management Plan (“FRMP”). See, e.g., Dkt. 31-5 at 6.

Although it is possible that the increase in fatigue calls over the past few years is

attributable to a Union-sponsored slowdown, the Court finds that the Union has offered an

alternative explanation that is both equally plausible and consistent with the strong public

interest in preventing pilots from flying while fatigued. As an initial matter, it is clear from Dr.

Lee’s own graph that the monthly rate of fatigue calls has been on an upward trend since early

2015.

50

Dkt. 5-103 at 28, Ex. 7. Although the diagonal line, which the Court has added to Dr. Lee’s

graph, is not based on a statistical analysis and does not represent the “best fit” for the data, it

nonetheless captures the self-evident upward trend. And, Dr. Lee’s conclusion that the post-

February 2016 rate exceeds the pre-February 2016 rate would be true for any upward trend, and

would be true for a variety of other cutoff dates that Dr. Lee might have chosen.

More importantly, a reasonable argument can be made that the upward trend tracks the

implementation and acceptance of the new FAA fatigue rules and Atlas’s FRMP. The FAA

issued its final pilot fatigue rule in 2012, see 77 Fed. Reg. 330-01 (Jan. 4, 2012); Atlas, then,

developed and implemented its FRMP in 2013, see Dkt. 31-4 at 9; and the FAA rule took effect

in 2014, see 14 C.F.R. § 117. As Captain Carlson acknowledged, however, efforts to educate

Atlas pilots about recognizing and mitigating pilot fatigue have continued from 2013 to 2017.

Hearing Tr. Day 2 (79:21–80:12). In 2015, moreover, Atlas implemented a requirement that

when pilots “sign off on their flight plans,” they also “sign off and . . . initial that they are fit for

51

duty.” Id. (196:20–197:7). In addition, according to Captain Christopher Lang, one of Atlas’s

FRMP instructors, the company and its pilots have “constantly developed the program and

increased the training on—the awareness training on fatigue.” Hearing Tr. Day 3 (96:8–17).

Captain Lang further testified that, “[p]articularly since February of this year, [they have]

increased the [in-class] training,” and that they added a “fatigue module” to the mandatory,

quarterly computer training “this year” and “probably” for “part of last year as well.” Id. (96:8–

98:4). And, finally, Captain Lang testified that Atlas’s program director for the FRMP appeared

at a check airmen’s meeting in August of this year and, after about half of the pilots present

conceded that they had flown fatigued, he “encouraged [those present] to call in fatigued more

often; to improve flight safety and not [to] fly when . . . fatigued.” Id. (98:7–99:12).

Nor is it surprising that it has taken time and an ongoing effort to address the problem of

pilot fatigue. As a number of witnesses testified, the industry had a “mission-oriented” culture

under which pilots, at times, flew fatigued. Dkt. 31-4 at 10; see also Hearing Tr. Day 2 (137:13–

138:12); Hearing Tr. Day 3 (87:7–88:7). The fact that the assessment of pilot fatigue under Part

117 is subjective and requires a degree of self-awareness further supports the Union’s contention

that change was not immediate, but, rather, required time and a shift in culture.

The Union, moreover, also reasonably attributes the increase in fatigue calls on a change

in the demographics of the Atlas pilot workforce. As Captain Kevin McCabe testified,

“approximately 50% of the [current] Atlas pilot workforce was hired on or after January 1, 2015,

and 30% of the workforce has less than two years seniority with Atlas.” Dkt. 31-4 at 11. “Many

of these new pilots are young” and “were previously employed by domestic commuter airlines.”

Id. As a result, according to Captain McCabe, “many of these new[-]hire pilots did not work in

the industry when calling out fatigue was considered and treated unfavorably,” and they “are

52

more comfortable participating within the industry’s new fatigue and passenger hours of service

rules.” Id. at 11–12.

The Court recognizes that the increase in fatigue calls—particularly when considered in

light of the SHOP campaign and similar efforts—may be, at least in part, a product of the

Union’s effort to apply pressure on the company. On the current record, however, the Court

cannot find that Atlas has met its burden.

c. Open Time Flying

Atlas next alleges that the Union has violated the RLA by encouraging pilots to decline to

volunteer for open time flying assignments. Open time flying is a common feature of airline

operations, see Delta Air Lines, 238 F.3d at 1302, and begins with a flight that lacks a crew.

This can occur for a variety of reasons, such as sick calls, fatigue calls, delays due to

maintenance issues, last-minute customer requests, or lack of sufficient staff. Dkt. 5-3 at 15–16.

Regardless of the cause, Atlas attempts to fill open space in two ways. First, it has a supply of

reserve crew members available each day. Dkt. 5-3 at 15–16. These pilots are required to be

available to fly, but will not necessarily be close enough to cover a particular flight. Dkt. 5-3 at

16. In addition, there are occasions when the reserve is already fully utilized. Id. That leads to

the second method of staffing open time: volunteers. Atlas sends out requests for volunteers for

a given flight, and available pilots, who are offered premium pay to cover the open time, are then

given the opportunity to bid on the available flight. Dkt. 5-3 at 16. When multiple pilots bid on

the same flight, the open time trip is given (or, at least, should be given) to the pilot with greatest

seniority. Id. It goes without saying that unfilled open time damages the company, which

cannot complete the flight as scheduled.

Atlas has presented convincing evidence that, since the Union served its Section 6 notice,

(1) the company has faced greater difficult in filling open time trips, and (2) it has been unable to
53

fill a greater proportion of its open time trips. Dr. Lee measured the difficulty in filling open

time trips by comparing the number of calls needed to fill each open time trip over time. Dkt. 5-

103 at 30. As explained in his declaration, in 2015, Atlas’s schedulers made an average of one

and a half calls to fill each open time trip. Id. at 29. Over the course of that year, moreover, the

number of calls needed to fill each trip was relatively constant from month to month, never

dropping to one or rising to two. Id. at 29–30. Over the first eight months of 2016, however,

that number increased to two, and over the following year, the number increased to three. Id. at

30.

Dr. Lee also found an increase in the percentage of open time trips that have gone

unfilled. According to this analysis, the percentage of unfilled open time trips between January

2015 and February 2016, when the Union served its Section 6 notice, never rose above 5%. Id.

at 31. In contrast, there have been eleven months since February 2016 when the percentage of

unfilled open time trips has exceeded 5%. Id. As reflected in the graph reproduced below,

moreover, the percentage of unfilled open time trips surged to 30% in October 2016, 42% in

December 2016, and 23% in March 2017.

54

Id. at 32, Ex. 9. Not only does this graph depict a significant increase in unfilled flights, but, as

Atlas stresses, this increase is all the more dramatic in light of the fact that the number of

available open time trips dropped from an average of 132 per month between January 2015 and

February 2016 to an average of only 73 per month from March 2016 to August 2017. Id. at 31.

The Union contends that the data reflected in Exhibit 9 does not establish a status quo

violation because the spike in unfilled trips did not occur until September 2016, seven months

after the Union served its Section 6 notice. As explained above, however, the type of precise

temporal correspondence that the Union demands is neither required nor what one would

reasonably expect to occur; there is no reason to believe that a union would organize and apply

all possible pressure on the day the Section 6 notice is served—it is not surprising to see tensions

ebb and flow over time. To be sure, Atlas bears the burden of demonstrating that the Union is

55

responsible for the changes that have occurred, but that is a separate inquiry that is addressed

below.

The Union’s expert, Mr. Akins, suggests a number of alternative theories for the dramatic

increase in the percentage of unfilled trips. He posits, for example, that the increase corresponds

to a decrease in the number of open time trips. Dkt. 31-3 at 45–46. The theory that a drop in

supply explains why the remaining available slots went unfilled is difficult to fathom. Dkt. 35 at

38. Mr. Akins, however, make an effort to do so, suggesting that it is “possible” that “the

number or proportion of desirable trips” decreased or that pilot interest in open time trips

diminished because Atlas adopted a policy of ferrying pilots to and from these flights on Atlas

aircraft, rather than on more comfortable commercial flights. Dkt. 31-3 at 47. But, both of these

theories are more supposition than evidence; even beyond the qualifiers that Mr. Akins himself

includes (“it is possible,” “[t]his change may make it more difficult,” id.), the Union offers no

evidence that either of these possibilities has had any effect on pilot behavior. Given the force of

Dr. Lee’s testimony and the Union’s failure to present evidence of alternative explanations for

the increased difficulty in filling open time and the larger percentage of open time flights that

have gone unfilled, the Court finds that a change in the status quo has occurred.5

That leaves the question whether Atlas has offered clear proof of the Union’s

involvement in these changes. Once again, it is necessary to consider this issue in light of the

Union’s more general SHOP campaign, which has urged Atlas pilots to turn down the “quick

buck” and “to stop doing the Company favors” in order to give the Executive Committee and

Negotiation Committee “the leverage and power they need.” Dkt. 5-11 at 2 (1:17–21). Picking

5
In its post-hearing brief, the Union acknowledges “increased . . . reluctance to pick up
additional flying from open time.” Dkt. 50 at 19. It focuses its argument instead on the role of
the Union in fomenting that reluctance, discussed below.

56

up on this theme during an October 14, 2016 ATAM, Captain Griffith provided pilots with “a

short list of some of” the things that they are not required to do under the CBA. Dkt. 5-33 at 6

(19:4). First on this list was “bid[ding] or accept[ing] open time flying.” Id. (19:6–7). Captain

Griffith then explained:

We have learned we have choices [and that] following the CBA is a simple and
extremely [e]ffective way to give our Union all the leverage it needs to score points
during talks and negotiations with Purchase. But perhaps we could agree, we have
learned what you are not required to do as well and still comply fully with our
woeful and much maligned CBA. Understanding is but the first step in the
successful execution of any plan. And our plan is to negotiate and bring home an
industry leading CBA to our pilots and their families. Our execution and doing the
very simple things our Union asks of us is the key. The very key to our solidarity
and our eventual success. . . . Now is not the time to let up, ladies and gentlemen.
Keep the pressure on them, and we will triumph.

Id. at 6–7 (20:1–21:2).

Other communications make the same point. During a May 11, 2017 conference call, for

example, a pilot asked about “solidarity” and, in particular, whether the Union calls pilots who

pick up open time trips to tell them “to get on the program.” Dkt. 28-13 at 10 (8:4–11). Captain

Kirchner replied that the Union is not allowed to reprimand pilots for accepting open time trips,

but added, “I think there’s enough peer pressure going on here and enough people eating dinner

by themselves and not having anybody to talk to on long flights that I think that’s getting done in

that manner.” Id. (8:12–17). He then added: “We do have great solidarity. And like you point

out, the vast majority of our crewmembers are onboard, and they understand that small sacrifices

. . . here now will lead to large rewards down the line. The vise is tightening here every day as

we move towards the fourth quarter.” Id. at 10–11 (8:21–9:5). Captain Griffith echoes this point

later in the same call. After explaining that the decision whether to bid for or to accept open time

trips was “a personal choice,” Captain Griffith explained:

However, when you look at it from the point of view of trying to put pressure on
the company—not to hurt the company, but put pressure on them to get them back
57

to the table—to deny them virtual extra crewmembers—because, remember, every
time you outbase or every time you [volunteer], you are virtually becoming more
than one crewmember for them in a bid cycle. You know, you got to think about
that.

Id. at 17 (15:1–9). The following month, Captain Kirchner once again reinforced this point

during a Crew Call. Dkt. 28-14 at 3–5. There, a panelist asked whether “picking up open time

flying harm[s] . . . our ability to negotiate,” and Captain Kirchner responded, “when you go the

extra mile for them, that just solidifies and helps them in what they are trying to do to us.

Okay?” Id. at 5–6 (3:13–4:3).

A final example suffices to make the point. During a July 10, 2017 Crew Call, Captain

Kirchner and the Chairman of the Union’s Negotiation Committee were asked what the pilots

should do to help with the negotiations. Dkt. 28-15 at 5 (3:1). They responded:

You need to follow the CBA, and, you know, look at your job from a standpoint of
do you enthusiastically show up for work and go above and beyond what’s required
to help Atlas out, or are you doing just the bare minimum of what’s required for
you at work every day and nothing more? Those are the kind of things, if you ask
yourself that with every little thing that you have a decision to make on that topic,
it makes a huge difference on a large scale. A lot of people don’t believe they make
a difference, but they really do. Each and every one of you helps us tremendously.
(Captain Knox).

And if you look at Atlas right now and the open time coming up and the service
failures, it’s literally a house of cards ready to come crashing in. They are putting
this together with scotch tape and baling wire. (Captain Kirchner).

Id. at 5–6 (3:9–21, 3:22–4:5) (emphasis added). Later in the same call, Captain Kirchner further

explained: “We’re watching some trips cancel, some trips delayed;” “You are all watching a

huge amount of open time;” and “unfortunately some of our pilots are falling over backwards to

help [the company] out of a jam.” Id. at 8 (6:12–13). And, although once again noting that the

decision whether to fly open time is a personal one, Captain Kirchner told the pilots that “[i]t

certainly is helpful when you don’t,” id

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4224943. Public record. Not legal advice.