Delta Air Lines, Inc. v. Air Line Pilots Ass'n, International

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

________________________ JAN 18 2001

THOMAS K. KAHN

CLERK

No. 00-16472

________________________

D.C. Docket No. 00-03207-CV-WBH-1

DELTA AIR LINES, INC.,

Plaintiff-

Appellant,

versus

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, ET AL.,

Defendants-Appellees.

__________________________

Appeal from the United States District Court for the

Northern District of Georgia

_________________________

(January 18, 2001)

Before TJOFLAT, BARKETT and MAGILL*, Circuit Judges.

_______________

*Honorable Frank J. Magill, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.

TJOFLAT, Circuit Judge:

This case is before the court on Delta Air Lines’ appeal of the district court’s

denial of a preliminary injunction against the Air Line Pilots Association. Because

we find concerted action on the part of the pilots and because the Air Line Pilots

Association has a duty under the Railway Labor Act, 45 U.S.C. § 152 First, to

prevent such action, we reverse and remand to the district court with instructions to

issue an appropriate injunction.

I.

A.

Delta Air Lines, Inc. (“Delta”) and the Air Line Pilots Association,

International (“ALPA”) are parties to a collective bargaining agreement (“CBA”)

that governs the terms and conditions of employment for over 9,800 pilots

employed by Delta.1 Delta and ALPA commenced negotiations for a new CBA in

September 1999. These negotiations are ongoing.

In the midst of these ongoing negotiations, Delta pilots began to decline to

fly “overtime.” Overtime is built into Delta’s flight schedule, accounting for

1

Delta is a common carrier by air engaged in the transportation of passengers and freight

in intrastate and interstate commerce throughout the United States. ALPA is a labor

organization that is the exclusive bargaining representative of Delta’s pilots.

2

approximately five to seven percent of scheduled flights, and derives from the

CBA.2 “Overtime” is in some ways a misnomer, for this is really unscheduled

“open time” on the flight schedule in which pilots may volunteer to fly additional

flights above their pre-arranged flight schedule. Although Delta maintains a pool

of reserve pilots to operate flights in the event a scheduled pilot is unavailable, it

relies upon pilots to “pick up” these overtime flights in order for Delta to operate

all of its scheduled flights.3 A pilot has the right, under the CBA, to exercise his or

2

Under the current CBA, Delta schedules flights for public purchase, hires and trains

pilots to operate those flights, places the flights in monthly pilot schedules that pilots bid to

operate, maintains a number of “reserve pilots” to operate flights in the event that scheduled

pilots become unavailable, and offers “open time” flights to pilots for flying as “overtime” above

their schedule.

3

There are three kinds of “overtime” flights: White Slip, Green Slip, and Green Slip with

Conflict. White Slip flying, the most common kind of overtime (an average of 6.77% of the total

pilot credit hours per month from October 1, 1999 to September 30, 2000 were accounted for by

white slip flying), is done at regular contract rates. Green Slip and Green Slip with Conflict are

flown at premium rates, but do not reduce the availability of a particular pilot for overtime in

subsequent months.

Pilots generally fly a monthly work schedule for which they have bid, according to their

training on particular equipment and seniority. A number of pilots, usually between fifteen and

twenty-five percent, are scheduled as reserves. Open time may be assigned to reserves, if they

are available. Generally, though, open time flights are filled by pilots who voluntarily pick up

open time; this increases a pilot’s flight hours and income. Pilots who desire premium pay may

choose to fly Green Slip rather than White Slip, which means that the pilot will only be called

upon after all pilots with White Slips and reserves for that day have been used to fill vacancies.

A pilot may also request to fly open time hours on a flight which conflicts with the pilot’s pre-

assigned schedule; this is Green Slip with Conflict. If this open time is awarded, then the pilot

drops his or her originally scheduled trip but receives payment for both the pre-assigned trip and

the trip actually flown.

Another method of flight staffing is “inverse assignment.” Inverse assignment involves

Delta contacting available and qualified pilots, in inverse order of seniority, to operate a flight.

Inverse assignment duties pay premium (double) rates, and inverse assignment occurs only after

Delta has exhausted all pilots volunteering for White Slips and Green Slips. Pilots often use

3

her individual choice and decline to pick up overtime flights. Additionally, a pilot

can avoid being assigned to operate overtime flights by exercising his or her CBA

rights not to answer a telephone call and not to return a telephone call to Delta;

pilots may not be assigned to overtime flying unless they have spoken with Crew

Scheduling.

Although each individual pilot may make personal choices about how and

whether to work overtime, Delta relies upon many of the pilots choosing to work

this open time to fulfill its scheduled flights. If all of Delta’s pilots were to refuse

to pick up additional flights and refuse to work overtime, Delta would not be able

to operate its full complement of flights. Although there are some alternatives

available to Delta under the CBA, including raising the “cap” on pilot hours in a

given month, staffing flights with reserves or management pilots, and pre-

canceling flights and rebooking passengers in advance, these alternatives are

limited and generally do not allow Delta to fly its full complement of scheduled

routes.

answering machines or fail to answer their telephones, which limits the value of inverse

assignment since a pilot may not be assigned unless he or she returns a call to Crew Scheduling.

Inverse assignment with conflict works in the same way as regular inverse assignment, except

that Delta calls upon pilots whose pre-assigned schedule will conflict with the proposed inverse

assignment. Therefore, inverse assignment with conflict only occurs after Green Slips with

Conflict, as well as all other methods of filling pilot vacancies, are exhausted.

4

Beginning in November 2000, apparently just in time for holiday travel,

Delta pilots intensified their “no-overtime campaign.”4 This action by the pilots,

viewed in the context of the holiday travel season and the ongoing labor

negotiations between ALPA and Delta, leads to the obvious inference that the

pilots are seeking to pressure Delta into making concessions in the negotiations for

a new CBA.

The effects of the pilots’ no-overtime campaign are evident from Delta’s

flight statistics. Historically, Delta cancels no more than one or two of 2,700

flights daily due to lack of pilots. However, in November 1999, pilots averaged

2,053 daily requests for overtime; in November 2000 they averaged only 1,276

daily requests. In the first three days of December 1999, pilots averaged 1,678

daily requests; in those same days in December 2000 they averaged 503 requests.

Delta canceled a total of ten flights due to pilot shortages for the month of

November 1999, while it canceled 375 flights in November 2000. In the first three

days of December 1999, Delta had no cancellations; in the first three days of

4

There is evidence in the record indicating that the pilots’ actions had been ongoing since

late summer, but the no-overtime campaign increased in intensity and resolve beginning in

November.

5

December 2000 Delta canceled 386 flights.5 Clearly, the pilots’ efforts to refuse

overtime is affecting both Delta’s flight schedule and the traveling public.6

In the midst of the no-overtime campaign by the pilots, Delta tried to work

with ALPA by enlisting ALPA’s assistance in ending the pilots’ concerted no-

overtime campaign. During this time, ALPA issued a number of directives to the

pilots advising them of their rights under the CBA regarding overtime; ALPA

recommended flying overtime at premium rates – green slip flying. By November

2000, when some pilots were advising (and sometimes threatening) other pilots not

to seek or fly overtime, the Delta Master Executive Council of ALPA (“MEC”)7

advised pilots several times, through several media, that pilots should respect the

choices of others regarding overtime and that whether to fly overtime was the

individual choice of each pilot. These steps by ALPA and the MEC had no

measurable effect on the pilots’ no-overtime campaign. Delta was unable to

overcome the no-overtime campaign either through compensatory scheduling

5

Delta has submitted additional information indicating that over 1,200 flights were

canceled between November 19, 2000 and December 10, 2000, and an additional 4,037

scheduled flights were canceled between December 11, 2000 and January 1, 2001 – all due to a

lack of pilots.

6

Delta’s November 2000 cancellations affected 340,000 passengers who were booked on

the canceled flights. The cancellations during the first three days of December 2000 affected an

additional 30,000 passengers. Delta reports that an additional 375,000 passengers were affected

by the cancellation of 4,037 scheduled flights from December 11, 2000 to January 1, 2001.

7

The MEC is the governing body for Delta’s ALPA-represented pilots.

6

methods or through ALPA’s communications; therefore, Delta filed the present

action.

B.

Delta filed a verified complaint on December 5, 2000 in the district court for

the Northern District of Georgia. The complaint alleged an unlawful job action in

violation of the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151-188.8 The

complaint named fifty-one defendants, including ALPA, the MEC and its officers,

and several individual pilots.9 Delta filed motions for a temporary restraining order

(“TRO”) and a preliminary injunction on December 5. The district court held a

hearing on Delta’s motions for a TRO and preliminary injunction on December 6.

The district court denied both motions on December 11. Delta filed its Notice of

Emergency Appeal the following day, December 12. Delta also moved for an

injunction pending appeal; we denied that motion on December 13. However, in

that same order, we granted Delta’s motion for an expedited appeal. Moving on

the expedited basis, oral argument was heard on January 11, 2001.

8

Delta is a common carrier by air under the terms of the RLA, 45 U.S.C. § 181. ALPA is

the legal representative for Delta’s pilots under the terms of the RLA, 45 U.S.C. § 152 Third.

9

Delta also named one hundred “John Does” and one hundred “Jane Does” in its

complaint.

7

II.

A.

The Railway Labor Act was passed in its initial form by Congress in 1926,

with the support of both the railroads and the unions. Although a number of

amendments have been introduced over the years, including extending the RLA to

the airline industry in 1936, the stated purposes have remained constant. The first

of the RLA’s five listed purposes is “[t]o avoid any interruption to commerce or to

the operation of any carrier engaged therein.” 45 U.S.C. § 151a.10 To accomplish

its purposes, especially this first purpose, the RLA imposes a substantive duty

upon “all carriers, their officers, agents and employees to exert every reasonable

effort to make and maintain agreements . . . and to settle all disputes . . . in order to

avoid any interruption to commerce or to the operation of any carrier growing out

of any dispute between the carrier and the employees thereof.” 45 U.S.C. § 152

First. Because the statutory structure reveals that this duty is at the “heart” of the

10

Section 151a, in full, reads:

The purposes of [the RLA] are: (1) To avoid any interruption to commerce or to the

operation of any carrier engaged therein; (2) to forbid any limitation upon freedom of

association among employees or any denial, as a condition of employment or otherwise,

of the right of employees to join a labor organization; (3) to provide for the complete

independence of carriers and of employees in the matter of self-organization to carry out

the purposes of [the RLA]; (4) to provide for the prompt and orderly settlement of all

disputes concerning rates of pay, rules, or working conditions; (5) to provide for the

prompt and orderly settlement of all disputes growing out of grievances or out of the

interpretation or application of agreements covering rates of pay, rules, or working

conditions.

8

RLA, see Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377-

78, 89 S. Ct. 1109, 1115, 22 L. Ed. 2d 344 (1969), and because of the legislative

history of the provision,11 the Supreme Court has clarified that section 152 First

imposes a legal duty enforceable by courts: “[W]e think it plain that [section 152

First] was intended to be more than a mere statement of policy or exhortation to the

parties; rather, it was designed to be a legal obligation, enforceable by whatever

appropriate means might be developed on a case-by-case basis.” Chicago & N.W.

Ry. Co. v. United Transp. Union, 402 U.S. 570, 577, 91 S. Ct. 1731, 1735, 29 L.

Ed. 2d 187 (1971).

The RLA sets forth a detailed sequence of steps that carriers and their

employees (or their employees’ representative) must undertake in negotiating

11

In the House hearings on enacting this section of the RLA, Donald R. Richberg,

counsel for the organized railway employees supporting the bill, stated plainly that section 152

First imposed a binding legal obligation on the parties. He stated, “it is [the parties’] legal duty

to exert every reasonable effort . . . to settle all disputes, whether arising out of the abrogation of

agreements or otherwise, in order to avoid any interruption to commerce. In other words, the

legal obligation is imposed, and as I have previously stated, and I want to emphasize it, I believe

that the deliberate violation of that legal obligation could be prevented by court compulsion.” In

further explaining why the provision applied equally in general terms to both parties in RLA

cases, he explained:

We believe, and this law has been written upon the theory, that in the development of the

obligations in industrial relations and the law in regard thereto, there is more danger in

attempting to write specific provisions and penalties into the law than there is in writing

the general duties and obligations into the law and letting the enforcement of those duties

and obligations develop through the courts in the way in which the common law has

developed in England and America.

Hearings on Railroad Labor Disputes (H.R. 7180) before the House Committee on Interstate and

Foreign Commerce, 69th Cong., 1st Sess., 91 (1926) (quoted in Chicago & N.W. Ry. Co. v.

United Transp. Union, 402 U.S. 570, 577, 91 S. Ct. 1731, 1735, 29 L. Ed. 2d 187 (1971)).

9

collective bargaining agreements. The RLA intentionally provides for slow

movements by all parties during this negotiation and bargaining process. As the

Supreme Court has recognized, the RLA “subjects all railway disputes to virtually

endless ‘negotiation, mediation, voluntary arbitration, and conciliation.’”

Burlington N. R.R. Co. v. Bhd. of Maintenance of Way Employees, 481 U.S. 429,

444, 107 S. Ct. 1841, 1850, 95 L. Ed. 2d 381 (1987) (quoting Detroit & Toledo

Shore Line R.R. Co. v. Transp. Union, 396 U.S. 142, 148-49, 90 S. Ct. 294, 298,

24 L. Ed. 2d 325 (1969)). The bargaining procedures of the RLA are “purposely

long and drawn out” in the hope that reason will, in time, produce an agreement.

Bhd. of Ry. and S.S. Clerks v. Fla. E. Coast Ry. Co., 384 U.S. 238, 246, 86 S. Ct.

1420, 1424, 16 L. Ed. 2d 501 (1966).

During the long negotiating process, the RLA seeks to protect the public,

carriers, and unions alike by imposing a legal duty upon carriers and unions to

maintain the status quo with respect to “rates of pay, rules, [and] working

conditions,” even when there is a disagreement about the CBA. 45 U.S.C. §§ 155-

56; Consol. Rail Corp. (“Conrail”) v. Ry. Labor Executives’ Ass’n, 491 U.S. 299,

302-03, 109 S. Ct. 2477, 2480, 105 L. Ed. 2d 250 (1989).12 A failure by either side

12

These status quo provisions of the RLA have been described by the Court as “central to

its design.” Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 150,

90 S. Ct. 294, 299, 24 L. Ed. 2d 325 (1969).

10

to maintain the status quo during the bargaining and mediation process may give

rise to injunctive relief, even without the customary showing of irreparable injury.

Id.; see also Detroit & Toledo Shore Line R.R. Co., 396 U.S. 142, 90 S. Ct. 294

(upholding a status quo injunction).

B.

In cases where a carrier seeks injunctive relief against a union, a court must

look not only to the RLA, but also to the Norris-LaGuardia Act (“NLGA”), 29

U.S.C. §§ 101-115, to determine whether the court has jurisdiction. As a general

rule, the NLGA prohibits courts from issuing injunctive relief in labor disputes.13

29 U.S.C. §§ 101, 104; Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 772, 81 S.

Ct. 1784, 1802, 6 L. Ed. 2d 1141 (1961) (“The [NLGA] expresses a basic policy

against the injunction of activities of labor unions.”). The NLGA also generally

prohibits a court from holding a union responsible for illegal acts of the union

members. 29 U.S.C. § 107(a) (“[N]o injunction or temporary restraining order

13

A “labor dispute” under the NLGA “includes 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, regardless of whether or not the disputants stand in the proximate relationship of

employer and employee.” 29 U.S.C. § 113(c). The Supreme Court has explicitly held that the

NLGA covers the railroads, see Burlington N. R.R. Co. v. Bhd. of Maintenance of Way

Employees, 481 U.S. 429, 440, 107 S. Ct. 1841, 1848, 95 L. Ed. 2d 381 (1987), and therefore, by

extension, the airlines.

11

shall be issued on account of any threat or unlawful act excepting against the . . .

organization making the threat or committing the unlawful act or actually ratifying

the same after actual knowledge thereof.”); 29 U.S.C. § 106 (“No . . . organization

shall be held responsible or liable . . . 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.”). The NLGA also prescribes procedural rules for civil proceedings in

which an employer seeks an injunction or TRO against its employees. For an

injunction, live testimony with opportunity for cross-examination is normally

required after proper notice; for a TRO, though, sworn affidavits may suffice if the

complainant would suffer “substantial and irreparable injury” without the TRO. 29

U.S.C. § 107.

C.

The Supreme Court has stated that although the prescriptions and

proscriptions of the NLGA are clear, the NLGA “cannot be read alone in matters

dealing with railway disputes.” Bhd. of R.R. Trainmen v. Chicago River & Ind.

R.R. Co., 353 U.S. 30, 40, 77 S. Ct. 635, 640, 1 L. Ed. 2d 622 (1957). Rather,

“[t]here must be an accommodation of [the NLGA] and the [RLA] so that the

12

obvious purpose in the enactment of each is preserved.” Id.14 The way to

accommodate these two statutes, in most circumstances, is to determine if specific

provisions of the RLA are implicated. If so, “the specific provisions of the [RLA]

take precedence over the more general provisions of the [NLGA].” Id. at 42, 77 S.

Ct. at 641; accord Pittsburgh & Lake Erie R.R. Co. v. Ry. Labor Executives’

Ass’n, 491 U.S. 490, 513, 109 S. Ct. 2584, 2598, 105 L. Ed. 2d 415 (1989).

When a specific provision of the RLA is implicated, “the District Court has

jurisdiction and power to issue necessary injunctive orders [to enforce compliance

with the requirements of the RLA] notwithstanding the provisions of the [NLGA].”

Bhd. of R.R. Trainmen v. Howard, 343 U.S. 768, 774, 72 S. Ct. 1022, 1025, 96 L.

Ed. 1283 (1952); see also Chicago & N.W. Ry. Co. v. United Transp. Union, 402

U.S. 570, 91 S. Ct. 1731, 29 L. Ed. 2d 187 (1971) (holding that 45 U.S.C. § 152

First creates a legal obligation which a court may enforce through injunction,

notwithstanding section 4 of the NLGA (29 U.S.C. § 104)); Chicago River, 353

U.S. at 42, 77 S. Ct. at 641 (holding that injunctive relief is appropriate under the

14

According to the Supreme Court, the two Acts have different purposes. On the one

hand, “[i]n adopting the Railway Labor Act, Congress endeavored to bring about stable

relationships between labor and management in this most important national industry.” Chicago

River, 353 U.S. at 40, 77 S. Ct. at 640. It did this because disputes between labor and

management “had resulted in the aggregate being serious enough to threaten disruption of

transportation.” Id. On the other hand, “[t]he Norris-LaGuardia Act . . . was designed primarily

to protect working men in the exercise of organized, economic power, which is vital to collective

bargaining.” Id.

13

RLA when a specific provision is implicated, notwithstanding the general

provisions of the NLGA); Virginia Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515,

549-52, 57 S. Ct. 592, 600-02, 81 L. Ed. 789 (1930) (holding that injunctive relief

is proper under the RLA).15 Although the NLGA usually deprives federal courts of

jurisdiction in general categories of labor disputes,16 federal courts retain

15

Appellee cites two circuit court cases purportedly on point regarding the relationship or

the RLA and the NLGA. See Fry v. Airline Pilots Ass’n, Int’l, 88 F.3d 831, 841-42 (10th Cir.

1996) (holding that the union could not be held liable for damages in state tort law claim for the

alleged harassment of pilots who had worked through a strike without a showing of actual union

authorization or ratification); Airline Pilots Ass’n Int’l v. United Air Lines, 802 F. 2d 886, 905-

06 (7th Cir. 1986) (stating in dicta that the airline’s evidence of a “sickout,” using only statistical

evidence and without identifying even one pilot who had taken sick leave without actually being

sick, was insufficient to show a status quo violation at all, and therefore “would generally end

the discussion”). We find these cases to be inapposite.

16

29 U.S.C. § 104 provides:

No court of the United States shall have jurisdiction to issue any restraining order or

temporary or permanent injunction in any case involving or growing out of any labor

dispute to prohibit any person or persons participating or interested in such dispute (as

these terms are herein defined) from doing, whether singly or in concert, any of the

following acts:

(a) Ceasing or refusing to perform any work or to remain in any relation of employment;

(b) Becoming or remaining a member of any labor organization or of any employer

organization, regardless of any such undertaking or promise as is described in section 103

of this title;

(c) Paying or giving to, or withholding from, any person participating or interested in

such labor dispute, any strike or unemployment benefits or insurance, or other moneys or

things of value;

(d) By all lawful means aiding any person participating or interested in any labor dispute

who is being proceeded against in, or is prosecuting, any action or suit in any court of the

United States or of any State;

(e) Giving publicity to the existence of, or the facts involved in, any labor dispute,

whether by advertising, speaking, patrolling, or by any other method not involving fraud

or violence;

(f) Assembling peaceably to act or to organize to act in promotion of their interests in a

labor dispute;

(g) Advising or notifying any person of an intention to do any of the acts heretofore

14

jurisdiction “to enjoin compliance with various mandates of the [RLA].” Int’l

Ass’n of Machinists v. Street, 367 U.S. 740, 772, 81 S. Ct. 1784, 1802, 6 L. Ed. 2d

1141 (1961). However, this exception for the RLA is limited, and an injunction

usually may lie only if, in addition to violation of a specific principle of the RLA,

an injunction is the sole practical, effective means of enforcing the Act. See

Burlington N. R.R. Co. v. Bhd. of Maintenance of Way Employees, 481 U.S. 429,

446, 107 S. Ct. 1841, 1851, 95 L. Ed. 2d 381 (1987).

It is clear that the substantive legal duty of 45 U.S.C. § 152 First, is a

“specific provision” of the RLA and, moreover, is central to the purpose and

functioning of the RLA. Therefore, the provision takes precedence over the more

general provisions of the NLGA. This is not to say that the procedural standards of

the NLGA do not apply, but only that the substance of the RLA is controlling. We

therefore hold that when this specific provision of the RLA is implicated and there

is no other effective way to enforce the RLA, the NLGA does not prohibit a federal

court from issuing an appropriate injunction.

specified;

(h) Agreeing with other persons to do or not to do any of the acts heretofore specified;

and

(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts

heretofore specified, regardless of any such undertaking or promise as is described in

section 103 of this title.

15

III.

A.

Contrary to ALPA’s assertion, we hold that the district court had jurisdiction

to hear the initial complaint: It did not arise from a “minor dispute,” which would

have rendered it subject to mandatory and exclusive arbitration under the RLA.17

We reject ALPA’s contention that the CBA “arguably” allows all pilots to refuse to

work overtime, when it is clear industry practice to structure flight schedules with

“open time” built in. The only reasonable explanation for this customary practice

is an expectation that not all of the pilots will choose to refrain from working

overtime at the same time; this is implicit in the CBA. Further, this dispute centers

17

“Minor disputes” are disputes over grievances or the interpretation or application of

agreements under the RLA. Consol. Rail Corp. (“Conrail”) v. Ry. Labor Executives’ Ass’n, 491

U.S. 299, 302-07, 109 S. Ct. 2477, 2480-83, 105 L. Ed. 2d 250 (1989). Exclusive jurisdiction

over minor disputes rests with the system adjustment board. See id. at 303-04 and 304 n.5, 109

S. Ct. at 2481 and 2481 n.5; Pyles v. United Air Lines, Inc., 79 F.3d 1046, 1049-50 (11th Cir.

1996). A decision of the appropriate system adjustment board with respect to an issue of

interpretation or application of a collective bargaining agreement is final and binding on the

parties in almost all circumstances. See Conrail, 491 U.S. at 303-04, 109 S. Ct at 2481.

“Major disputes,” by comparison, concern the formation or modification of collective

bargaining agreements. See Elgin, Joliet & E. Ry. v. Burley, 325 U.S. 711, 723-24, 65 S. Ct.

1282, 1289-90, 89 L. Ed. 1886 (1945). Conduct that affects the status quo of a pre-existing

agreement is a major dispute for purposes of the RLA, and is properly brought before a federal

court rather than a system adjustment board. See Conrail, 491 U.S. at 302-03, 109 S. Ct. at

2480.

If the conduct giving rise to an alleged status quo violation is arguably permitted by the

CBA, the resulting dispute is a minor dispute, because it involves interpretation of the CBA. See

id. at 307, 109 S. Ct. at 2483 (“Where an employer asserts a contractual right to take the

contested action, the ensuing dispute is minor if the action is arguably justified by the terms of

the parties’ [CBA]. Where, in contrast, the employer’s claims are frivolous or obviously

insubstantial, the dispute is major.”).

16

on 45 U.S.C. § 152 First, which imposes a statutory obligation “to exert every

reasonable effort to make and maintain agreements.” This clear statutory provision

is at the heart of the RLA and is clearly within the province of the federal courts to

enforce. When the public interest, commerce, and a clear statutory provision are

implicated, we will not shy away from holding the parties to their duties under the

RLA so as to avoid “any interruption to commerce.” 45 U.S.C. § 152 First.

B.

This is an appeal from the denial of a preliminary injunction. We have

jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1292, which permits

appeals from interlocutory orders of district courts “granting, continuing,

modifying, refusing or dissolving injunctions.” We generally review a denial of

preliminary injunctive relief on an abuse of discretion standard. Siegel v. LePore,

___ F.3d ___, No. 00-15981 (11th Cir. Dec. 6, 2000).18 We note that in RLA cases

18

A district court may grant preliminary injunctive relief only if the moving party shows

four things:

(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be

suffered unless the injunction issues; (3) the threatened injury to the movant outweighs

whatever damage the proposed injunction may cause the opposing party; and (4) if

issued, the injunction would not be adverse to the public interest.

Siegel v. Lepore, ___ F.3d ___, No. 00-15981 (11th Cir. Dec. 6, 2000). The district court, had it

properly applied the law, would have found that Delta met all four of these factors. The

substantial likelihood of success on the merits is discussed infra Part III.C. Irreparable injury

surely would be suffered by Delta by canceling a number of flights, losing customer goodwill,

and losing revenues (although a showing of irreparable injury is not actually required under

17

a carrier need not show irreparable injury, a usual prerequisite for obtaining an

injunction, to enjoin a violation of the status quo because of the strong public

interest in enforcing the RLA. See Conrail, 491 U.S. at 303, 109 S. Ct. at 2480.

However, even if we were to look at the traditional factors for a preliminary

injunction, we would still review de novo the district court’s application of the law.

Haitian Refugee Ctr. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991) (per curiam)

(“[I]f the trial court misapplies the law we will review and correct the error without

deference to that court’s determination.”); see also Cuban American Bar Ass’n v.

Christopher, 43 F.3d 1412, 1423-24 (11th Cir. 1995) (“[T]he district court

misapplied the law governing the issues presented in this case. Thus, we accord no

deference to the district court’s determinations in granting the preliminary

injunctions in this case.”). Because we find that the district court misapplied the

law in the instant case by failing to recognize the extent of ALPA’s duty under 45

U.S.C. § 152 First, we accord no deference to the district court’s misapplication of

the law.

C.

Conrail, 491 U.S. at 303, 109 S. Ct. at 2480). There is no threatened injury to the non-movant

by the issuance of an injunction. Finally, the injunction furthers the public interest by insuring

the continued operation of air travel on a major carrier.

18

The district court erred in failing to appreciate the depth and seriousness of

the duty to “make and maintain agreements” in a way so as “to avoid any

interruption to commerce or to the operation of any carrier.” 45 U.S.C. § 152 First.

In the instant case, our focus is on ALPA’s duty to maintain agreements to avoid

interruption of commerce.19 As the Supreme Court has stated, this language of the

RLA creates a substantive legal duty “enforceable by whatever appropriate means

might be developed on a case-by-case basis.” Chicago & N.W. Ry. Co., 402 U.S.

at 577, 91 S. Ct. at 1735. An injunction is an appropriate remedy to compel the

performance of this legal duty. See Nat’l Airlines, Inc. v. Int’l Ass’n of Machinists

& Aerospace Workers, 416 F.2d 998 (5th Cir. 1969) (approving of an injunction

against the union to issue directives to its members to restore the status quo when

union members were engaging in unlawful “wildcat” strikes).20

The district court made explicit findings that there was an “ongoing

concerted effort on the part of some Delta pilots to refuse overtime work.” In its

19

This section of the RLA imposes the same duty upon employees. 45 U.S.C. § 152

First. The obvious implication from this is that Delta pilots may not collectively disrupt Delta’s

flight operations, in contravention of the CBA, by instituting a disruption in Delta’s operations

by way of a no-overtime campaign. The district court found that such an unlawful no-overtime

campaign was occurring and properly applied this provision of the RLA against the pilots. The

district court did not enjoin individual pilots, though, and thereby did not seek judicially to

enforce this clear provision of the RLA.

20

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this

court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down

prior to the close of business on September 30, 1981.

19

“Findings,” the district court analyzed the number of canceled flights and pilots’

reduced requests for overtime and found that “the statistics differ so substantially

that the difference can only be explained by the efforts of an undisclosed number

of pilots to undermine contract negotiations, seeking leverage for a salary

increase.” The court did not rest solely on statistical evidence, though, but looked

to other evidence, including e-mails, “many of which rise to the level of

intimidation and harassment.” The court found that the “traveling public” and

Delta are both harmed by the pilots’ concerted activity:

This reduction in requests for overtime is causing harm to Delta and the

traveling public. Delta has lost millions of dollars in revenues, rerouting

expenses, extra operating costs, and overnight hotel and meal vouchers.

Additionally, Delta has suffered loss in the form of good will and traffic that

is immeasurable. The public has suffered loss in time and money from the

delays and cancellations which is also immeasurable.

In spite of these findings, the court refused to issue an injunction against

ALPA and/or MEC. It based this refusal on the fact that “[n]either the Union

leadership [of ALPA] nor the [MEC] supports this effort [by the pilots] and both

have, in fact, counseled against it.” While it is true that ALPA and the MEC

“counseled against” the efforts of the pilots, it is equally clear that these union

communiques were not effective in suppressing the pilots no-overtime campaign.

The district court’s error came in its decision that it would “not hold that a

union has an affirmative duty to end or prevent the unilateral unlawful activity of

20

its members.” The RLA imposes such a duty on the union in section 152 First, and

the district court should have enforced that duty. It is possible, of course, that

ALPA has in fact done all that it can do in directing the pilots to cease their no-

overtime campaign. We seriously doubt this is the case, however. What seems to

be true is that while ALPA has admonished its members at Delta’s request, it has

not made “every reasonable effort” as required by statute. 45 U.S.C. § 152 First.

ALPA is statutorily bound to do everything possible to “maintain” the CBA so that

commerce is not in any way interrupted. We are not satisfied that ALPA has

fulfilled this duty.21 Therefore, the district court, on remand, should enjoin ALPA

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

resuming normal operations of Delta’s operations, including its overtime

scheduling.22

21

See Pan American World Airways, Inc. v. Indep. Union of Flight Attendants, 93 Lab.

Cas. ¶ 13,307 (S.D.N.Y. 1981) (holding that an injunction should issue against the union where

the evidence showed that the union was encouraging “or at least failing to discourage” a sickout

in violation of the union’s duty under the RLA, 45 U.S.C. § 152 First); Trans World Airlines,

Inc. v. Int’l Ass’n of Machinists and Aerospace Workers, 87 L.R.R.M. (BNA) 2556, 75 Lab.

Cas. ¶ 10,312 (W.D. Mo. 1974) (holding that the union had failed to meet its duty under the

RLA, 45 U.S.C. § 152 First, where the union did not authorize unlawful activity by employees

but did not take affirmative “reasonable” efforts to end such activities by the union members).

22

Because we agree with the district court that the individual pilots are making a

concerted, collective effort to reject overtime and institute an unlawful disruption of Delta’s

operations, we need not rule on whether ALPA has ratified the pilots’ actions and is therefore

directly responsible for the no-overtime campaign. The duty of ALPA under the RLA is

sufficiently high that even if it has not sponsored or ratified the unlawful job action by the pilots,

it has a duty to end such unlawful action.

21

It is possible, although unlikely, that ALPA has lost control of its members

and that the pilots are truly acting contrary to ALPA’s wishes and directives. If

this proves to be the case (which would become evident if the district court’s

injunction against ALPA is ineffective at stopping the no-overtime campaign), then

National Airlines, Inc. v. International Ass’n of Machinists & Aerospace Workers,

416 F.2d 998 (5th Cir. 1969), would apply. In National Airlines, the union had lost

control of its members (and conceded as much to the court) and the members were

conducting “wildcat strikes”; the union was admittedly powerless to prevent this.

In this circumstance, the airline came to the court seeking permission to terminate

some of the employees if they failed to work under the terms of their CBA. (The

airline approached the court because the RLA would not have permitted the

airline’s self-help without judicial intervention.) In National Airlines, the former

Fifth Circuit allowed the airline, faced with employees who were violating the

CBA and a union that had lost control of its members, to take direct action against

the employees.

If ALPA cannot control the pilots, some of whom are admittedly violating

the CBA by advocating concerted action, then Delta may return to the district court

for additional relief. The district court would, at that point, join all appropriate

parties as defendants (presumably sua sponte) and enjoin them from engaging in

22

continued activity in violation of the CBA, under penalty of court sanction or other

adverse employment action.

D.

Because the general procedural provisions of the NLGA still apply to this

action, even though the anti-injunction portion of the NLGA does not, we must

address the hearing before the district court. ALPA complains that Delta did not

put on live testimony, with opportunity for cross-examination, as required by the

NLGA, 29 U.S.C. § 107. While it is clear that section 107 requires live testimony

in order to obtain a temporary or permanent injunction in a labor dispute, section

107 also provides alternate hearing requirements for a complainant to obtain a

TRO. A TRO may be obtained to remedy “substantial and irreparable injury” on

the basis of testimony under oath sufficient to justify the court’s issuance of the

TRO. 29 U.S.C. § 107. Reading the TRO and injunction provisions together, the

purpose of section 107 is not so much about requiring live testimony, then, as it is

about ensuring the presence of reliable evidence before a court may enjoin parties

to a labor dispute.

23

In the instant case, although Delta did not put on live testimony, both sides

presented sworn affidavits and a host of other evidence and testimony.23 This

evidence was largely undisputed – particularly as it related to the fact that the pilots

were undertaking concerted action. ALPA’s counsel conceded at the hearing that

injunctive relief would be proper if Delta’s pilots were engaged in concerted

activity that violated the status quo; the district court did not hesitate to make

explicit its finding of such concerted activity by the pilots in its dispositive order,

and even in its closing comments at the hearing itself. Delta’s evidence consisted

of (1) written documents reflecting the pilots’ overtime boycott (mainly in the form

of captured e-mail communications); (2) union pronouncements and directives,

which were concededly authentic; (3) statements of union members acknowledging

the existence of the overtime boycott, which were concededly genuine; and (4)

statistical evidence of the impact of the ban, which was not challenged by ALPA.

ALPA presented its own documentary evidence, as well as relying upon some of

the evidence presented by Delta. The only material issue at the hearing was

whether ALPA actively sponsored or ratified the pilots’ no-overtime campaign.

23

Delta offered to put on its declarants as live witnesses, but the district court decided to

proceed without live testimony.

24

Given that there was no dispute about the reliability of the evidence, at least

as to the concerted action by the pilots, we believe the district court was entitled to

rely upon such evidence to make its determinations.24 See Ry. Express Agency,

Inc. v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, 437 F.2d 388, 395

(5th Cir. 1971) (holding that section 107 was not violated when the district court

used only briefs and affidavits to decide whether to issue an injunction; live

testimony with cross-examination was not required). The purpose of section 107 is

served if the evidence is inherently reliable and there is no harm to the parties. An

analogy to the hearsay rule demonstrates the propriety of this holding. Hearsay

statements are generally excludable because they suffer from a lack of reliability;

reliability is generally established through live testimony and cross-examination.

However, there are exceptions to the hearsay rule that do not contravene the

Confrontation Clause, even though they permit the introduction of out-of-court

statements, because the statements are inherently reliable.

IV.

24

We do not pass judgment at this time as to whether there was reliable and undisputed

evidence about ALPA’s involvement in the no-overtime campaign. There appears to be a

genuine dispute over ALPA’s involvement sufficient to necessitate live testimony as

contemplated by the NLGA, 29 U.S.C. § 107.

25

The district court properly determined that Delta’s pilots were engaged in an

unlawful no-overtime campaign. However, the district court improperly

interpreted the gravity and depth of ALPA’s duty under the RLA to prevent such

an unlawful job action. Because there has been no showing that ALPA lacks

control over the pilots, reason dictates that ALPA has not done enough to fulfill its

statutorily mandated duty to “maintain” the agreement and avoid an “interruption

to commerce.” Upon remand, the district court shall issue appropriate injunctive

relief directing ALPA to take further steps to end the pilots’ no-overtime

campaign. Further steps may include issuing directives as drafted by the court and

threatening (or imposing) union sanctions for violations, as permitted by ALPA’s

constitution.25 If ALPA complies with the court’s orders and the no-overtime

campaign continues, Delta may return to the district court for injunctive relief

against individual pilots, as discussed supra Part III.C.

REVERSED and REMANDED, with instructions.

25

ALPA’s constitution permits the union to discipline, fire, or expel any member for a

number of reasons, including “[a]cting in any manner to circumvent, defeat or interfere with

collective bargaining between the Association and an employer or with existing collective

bargaining agreements.” ALPA Constitution and Bylaws, Art. VIII, Sec. 1.A.

26

BARKETT, Circuit Judge, concurring specially, in which MAGILL, Circuit Judge,

joins:

I concur in the determination that under the law ALPA has an affirmative duty

to exert every reasonable effort to prevent or stop the unilateral unlawful activity of

its members and that it has not fulfilled that duty. Accordingly, I agree that this case

should be remanded for the entry of an appropriate injunction requiring ALPA to take

all reasonable steps to do so. However, any discussion of possible actions based on

the possibility that ALPA cannot control its membership is premature.

27