Appendix — Air Line Pilots Ass'n International v. United Air Lines, Inc.

] Bupreme Court, U.S

TITLED

1

Sis £2 96 FEB 4 87

SSL, UR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

Arr LINE PILOTS ASSOCIATION, INTERNATIONAL,

Petitioner,

Vv.

UNITED AIR LINES, INC.,

Respondent.

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

MICHAEL E. ABRAM*

JAY P. LEVY-WARREN

CHRISTOPHER N. Souris

STEPHEN PRESSER

COHEN, WEISS and SIMON

330 West 42nd Street

New York, New York 10036

(212) 563-4100

Attorneys for Petitioner

Air Line Pilots Association,

International

*Counsel of Record

TABLE OF CONTENTS

Air Line Pilots Assn, Int'l v. United Air Lines, Inc.,

Nos. 85-2726 & 85-2833 (7th Cir. Sept. 29,

Sees SN gi Gc vee ees

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

No. 85-4765 (N.D. Ill. Aug. 1, 1985) (findings

of fact and conclusions of law) .............

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

No. 85-4765 (N.D. Ill. Sept. 5, 1985) (order

amending findings of fact and conclusions of law)

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

Nos. 85-2726 & 85-2833 (7th Cir. Sept. 29,

Se IE oss so aah a ee cle

Air Line Pilots Assn, Int'l v. United Air Lines, Inc.,

Nos. 85-2726 & 85-2833 (7th Cir. Dec. 22.

1986) (order denying rehearing) ...........

ME UII ost ican es anes eon awk eee

PAGE

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APPENDIX A

dn th.

United States Court of Appeals

Bor the Seventh Cirrnit

Nos. 85-2726 and 85-2833

AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL,

Plaintiff-Appellee,

Cross-Appellant,

UNITED AIR LINES, INC.,

Defendant-Appellant,

Cross-Appellee.

Appeals from the United States District Court

for the Northern District of Iliinois, Eastern Division.

No. 85 C 4765—Nicholas J. Bua, Judge.

ARGUED APRIL 16, 1986—DEcIDED SEPTEMBER 29, 1986

Before Woop, JR., and CorrrEy, Circuit Judges, and

NOLAND, District Judge.*

Woop, JR., Circuit Judge. “his case arises out of a

twenty-nine day strike by the Air Line Pilots Association,

Jnternational (““ALPA’”’) against United Air Lines, Inc.

( United’’). Although the parties ultimately reached a new

* The Honorable James E. Nolanc, Chief Judge of the United

States District Court for the Southern District of Indiana, is sit-

ting by designation.

collective bargaining agreement, three issues which evolved

as a result of the strike remain for judicial resolution. The

first issue concerns United’s plan that allowed pilots who

worked during the strike to “bid” for vacancies left by

the striking pilots. The second issue involves permanent

replacement pilots that United hired during the course

of the strike. United agreed to pay these pilots a guaran-

teed salary as a means of inducing them to work for the

airline. The final issue involves the treatment of prospec-

tive new second officers who were in training prior to

the commencement of the strike (hereinafter the ‘“‘Group

of 500”). United had anticipated using these trainees as

replacement pilots and had offered them employment be-

ginning on May 17, 1985, the day ALPA went on strike.

With respect to these issues, ALPA filed suit alleging

various violations of the Railway Labor Act, as amended,

45 U.S.C. § 151 et seq. (1982) (the ““RLA”’ or the “Act’’).

Following a ten-day trial, Judge Nicholas J. Bua concluded:

(1) that United had violated the RLA by opening vacan-

cies to rebidding by pilots who had crossed the picket line;

(2) that the terms and conditions under which United hired

its permanent replacements, including the guaranteed sal-

aries, were lawful; and (3) that the Group of 500, although

not employees during their training period prior to the

strike, beeame employees of United on May 17, and that

United’s failure to extend them employee status on that

date was in contravention of the RLA. In the alternative,

even assuming that the Group of 500 never became em-

ployees, the trial judge found that United: (1) violated the

RLA’s status quo provisions by treating the trainees as

non-employees during the training period; and (2) violated

the RLA’s provision against coercing persons not to join

a union by making employment for the Group of 500 con-

tingent on crossing the picket line.! The district court in-

itially enjoined United from implementing the bid awards

made during the strike as well as barred the airline from

giving nonstrikers preference in any vacancy arising sub-

1 The district court’s opinion is reported at 614 F. Supp. 1020.

3a

sequent to the strike. The court also ordered United to

reinstate those members of the Group of 500 who had re-

spected the picket line and ‘‘to assign them immediately

to line pilot service if they completed their training, and

otherwise permit them to complete their training without

discrimination, and then enter line service, with seniority

in all cases accrued from May 17, 1985.” 614 F. Supp.

at 1051. Thereafter, the district court amended its order

regarding the Group of 500 to provide that United only

be required to place these pilots on a preferential hiring

list so that they would be hired as positions became avail-

able. In addition, the court denied ALPA’s motion seeking

back pay for the Group of 500.

On appeal, United argues that the court erred in holding:

(1) that its bidding procedures were unlawful; (2) that the

Group of 500 became employees on May 17; and (3) that

the status quo provisions of the RLA were violated by

United’s considering the Group of 500- as non-employees

during training. United also argues that the district court

erred in granting injunctive relief to ALPA since the

union had used economic coercion during the statutory

status quo period before the strike and had initially refused

to ratify its agreement with United until United reached

a satisfactory back-to-work agreement with its flight at-

tendants. ALPA cross-appeals alleging that the district

court erroneously: (1) upheld United’s guaranteed salaries

to replacement pilots; (2) ruled that the Group of 500 were

not entitied to immediate reinstatement; and (3) refused

to award the Group of 500 back pay for the time between

the end of the strike and their reinstatement.

We affirm the district court’s decisions with respect to

the replacement pilots and the implementation of the rebid

procedures. However, we reverse the court’s decision

regarding the Group of 500.

bs

The district court made extensive findings of fact which

we summarize below. We are, of course, required to adopt

4a

these factual findings unless they are shown to be clear-

ly erroneous. See Fed. R. Civ. P. 52(a).?

The present action was commenced by ALPA on May

16, 1985, 7.e., one day prior to the commencement of the

strike. ALPA is the duly certified representative for

United’s airline pilots under the RLA. The representa-

tion of United’s pilots is controlled by the United Air

Lines Master Executive Council (“UAL-MEC’’). UAL-

MEC is composed of three elected member pilots from

each of United’s nine pilot domiciles.*

For a number of years prior to the strike United and

ALPA had been parties to successive collective bargain-

ing agreements. The agreement controlling prior to the

strike had been in effect since October 1981. This agree-

ment was to be effective until October 1983 and would

automatically renew itself for a ore-year period each Oc-

tober thereafter unless either party sought a change. In

2 Rule 52(a) provides in pertinent part:

Findings of fact, whether based on oral or documentary

evidence, shall not be set aside unless clearly erroneous, and

due regard shall be given to the opportunity of the trial court

to judge of the credibility of the witnesses.

As defined by the Supreme Court, a factual finding is not clearly

erroneous if “plausible in light of the record viewed in its entire-

ty,’ even if the appellate court “would nave weighed the evidence

differently” and reached the opposite conclusion. Anderson v. City

of Bessemer City, 105 S. Ct. 1504, 1512 (1985). An appellate court

should overturn a district court’s finding of fact only if after having

reviewed the entire evidence it “ ‘is left with the definite and firm

conviction that a mistake has been committed.’” Jd. at 1511

(quoting United States v. United States Gypsum Co., 333 U.S. 364,

395 (1948)). Unlike findings of fact, the district court’s conclusions

of law are subject to de novo review on appeal.

% Each of United’s pilots operates from one of nine bases known

as domiciles. A domicile is the place from which a pilot’s assign-

ment begins and to which he returns. At the time of the strike,

United's pilot domiciles were Chicago, Cleveland, Denver, Hono-

lulu, Los Angeles, Miami, San Francisco, Seattle, and Washington.

Sa

January 1984, both parties served notice of their desire

to discuss new contractual terms. United sought to rene-

gotiate, among other things, compensation to be paid both

incumbent employees and new hires as well as the method

used to assign cockpit seats to pilots. United was seek-

ing changes, in part, as a result of economic pressures

to cut costs which accompanied the deregulation of the

airline industry. As negotiations progressed, it became ob-

vious that the key issue was United’s desire to have a

reduced pay scale for those pilots hired during the dura-

tion of a new agreement. United expressed concern that

without cost-cutting measures it would not be competitive

in the newly deregulated market. Indeed, although United

had an operating profit of in excess of $500 million in

1984, it had sustained operating losses in the preceding

five years.

Although continuing with the negotiations, United, in

the fall of 1984, began to prepare for a pilots’ strike by

establishing a task force to develop contingency plans. The

task force devised the “operations adjustment plan” which

had an objective of breaking any strike and forcing set-

tlement on United’s terms. At the same time, United also

began to experience a shortage of pilots. United had last

hired pilots during the period from 1977-1979. At that

time, it had been United’s policy to consider its student

pilots as employees beginning with their first day of train-

ing. These trainees were paid and earned seniority from

the first day of their hire. Once these student pilots com-

pleted the training process, they were brought into United

to serve in the entry-level position of second officer.*

With the need for new pilots evident, United, begin-

ning in November 1984, selected numerous candidates (i.e.,

the Group of 500) for its training program. During this

time, however, while United negotiated with ALPA with

respect to the new-hire pay scale, the airline did not want

* United employs pilots in three categories: captain, first officer,

and second officer.

62

the trainees on its property fearing that their presence

would make an agreement with ALPA on new-hire pay

more difficult. United also was opposed to paying the

trainees the rates for incumbents as provided in the 1981

agreement. United therefore stated that these trainees

would not be offered employment until after an agree-

ment had been reached with ALPA. Indeed, the student

pilots who were selected for training were required to ex-

ecute a “Flight Officer Training Agreement.’’ Under this

agreement, the student pilots would receive training with-

out charge from United as well as $30 per day to cover

their expenses. The students agreed that during training

they were not employees of United and received no com-

pensation for their services apart from the expense

money. The agreement, which each trainee signed, also

provided:

I understand that graduates of Flight Officer Train-

ing will constitute a pool of trained candidates for

Flight Officer employment, which United Airlines

may employ, if needed, within twelve months of grad-

uation. I understand that in order to be offered such

employment, that I must continue to meet the re-

quirements and qualifications for the flight officer

position.

Pursuant to the agreement United was free, without in-

curring liability, to terminate the training or never make

an offer of permanent employment.

In April 1985, United offered approximately 375 mem-

bers of the Group of 500, who had successfully completed

their training, positions as second officers. The offers of

employment were effective May 17, 1985, regardless of

whether a strike had commenced. The district court con-

cluded that when initially offered employment the Group

of 500 were not hired to serve as “crossovers” in the

event of a strike. Indeed, several! of the student pilots

indicated that United had told them that they would not

be asked to cross a picket line. As the May 17 strike

deadline approached, however, United began to see the

Ta

Group of 500 as strike replacements and informed the

members that if they failed to report to work they would

not work for the airline in the future. In fact, United’s

Chairman and Chief Executive Officer Richard Ferris

commented:

We have got 500 pre-hires, right? Those pre-hires are

all going, they’ve been given notice, and come 0001

May 17, they’re employed, boom. If they don’t show

up to work, they will never, ever, work for this air

line, ever, because they’re not on the property, they

won't have a number, they don’t have anything.

Nonetheless, the student pilots had a disincentive to re-

port to work during a strike. Under ALPA’s constitution

and bylaws a member-pilot is subject to expulsion for

“tpheclerahee work for or assisting an airline during a

period when the members of [ALPA] are on strike against

such airline.” ALPA constitution art. VIII, § 2(AX5).

Moreover, applicants for ALPA membership who were

“involved in alleged strikebreaking shall not be accepted

for membership” except, as the district court found, pur-

suant to rigorous procedures. /d., art. II, § 10(B).

Apart from plans regarding the Group of 500, United

also promised other policy changes in an attempt to lure

pilots across the picket line in the event of a strike. These

plans were communicated to United’s pilots via letters and

various “road shows” undertaken by United management

personnel. One plan called for United to allow ‘“‘bidding”’

for positions opened up by a strike. Under United’s bid

procedure, pilots could express their interest for, among

other things, vacant higher-level positions for which they

were qualified as well as for other pilot domiciles. If a

pilot’s bid was accepted, he was then able to advance to

his desired position. By allowing a rebid of the entire

airline subsequent to the commencement of a strike, United

sought to induce its pilots to ignore the strike for fear

that they would lose their present positions and be im-

peded from advancing in the future by less-senior pilots.

Sa

In addition to rebidding the airline, United also informed

its pilots that it was intending, in the event of a strike,

to hire as permanent replacements for striking pilots out-

side individuals who were already qualified to serve as

captains or first officers. To induce these “fleet-qualified”’

pilots to work for the airline during a strike, United was

prepared to pay captains an annual salary of $75,000 and

first officers a salary of $50,000. United also promised to

guarantee these salary levels even if the replacement

pilots were later reassigned to lower positions. Use of

these guaranteed salaries was another means United

hoped would help keep the airline flying in the event of

a strike.

By April 15, 1985, United and ALPA had failed to reach

a new collective bargaining agreement and the National

Mediation Board (‘‘NMB”’), which had become involved in

the negotiations during the previous August, declared an

impasse in negotiations. On April 16, the final thirty-day

“cooling-off’ period mandated by the RLA began. During

this period United and ALPA continued their collective

bargaining, but their efforts were to no avail. On May

17, ALPA struck United. Approximately 500 pilots re-

ported to work during the first three days of the strike,

250 of these being management pilots. Only a few mem-

bers of the Group of 500 crossed the picket line and those

already at United facilities left.

Shortly after the strike began, United cancelled all of

its pilot assignments both for striking and nonstriking

pilots. The result of this action was to create vacancies

in every position in the airline. Nonstriking pilots who

had reported to work before 6:00 p.m. Chicago time on

May 19 were allowed to bid on these vacancies with the

exception of the Miami and Washington domiciles. The

vacancies were not actually awarded until after June 1,

1985, and, during the strike, no pilot was activated in any

assignment awarded to him in the rebid. As a result of

the rebid, nonstriking pilots were able to leapfrog over

more senior striking pilots. In addition to the rebid,

United also employed the guaranteed salaries to attract

9a

fleet qualified pilots to serve as permanent replacements

for striking pilots.

For its part, ALPA also took actions both before and

during the strike in order to protect its interests. United

alleges that, prior to the strike, ALPA undertook a cam-

paign to inform travel agents around the country of the

impending strike and suggested that these agents book

their clients on airlines other than United. Moreover,

United also contends that ALPA members engaged in a

concerted abuse of sick leave to put economic pressure

on the airline as well as picketed the World Trade Con-

ference hosted by United’s Chairman and Chief Executive

Officer Richard Ferris in an attempt to dissuade con-

ference attendees from using United. Once the strike

began, ALPA also instructed its strike supervisors to take

pictures of the pilots and management personnel who

crossed the picket line. ALPA also photographed work-

ing pilots at this time.

During the course of the strike, ALPA and United re-

sumed their contract negotiations. In June 1985, the par-

ties reached a tentative back-to-work agreement. Under

this agreement the pilots would return to work and as-

sume the same positions they had held prior to the strike.

Both United and ALPA agreed not to punish either the

striking or nonstriking pilots. With respect to the status

of the members of the Group of 500, the rebid, and the

replacement pilots, however, United agreed that ALPA

would pursue its claims in the district court. Although

United agreed to restore all pilots to their pre-strike posi-

tions, when new vacancies arose, either due to attrition

or expansion, United stated it would award the vacancies,

in order of seniority, to nonstriking pilots who had been

awarded similar positions during the strike rebid. In other

words, nonstrikers were to be given preference over strikers.

United also maintained that it would not hire any member

of the Group of 500 who had failed to report to work ex-

cept for cases involving personal hardship or other extenu-

ating circumstances. Finally, United stated that it planned

to continue to pay the guaranteed salaries to the fleet-

qualified replacements.

10a

Apart from its own agreement, ALPA had also dis-

cussed with United how the airline would handle its dis-

pute with the Association of Flight Attendants (“AFA”’)

whose members had honored ALPA’s picket line. In keep-

ing with a pre-strike commitment, ALPA maintained that

its back-to-work agreement would be contingent upon

AFA also reaching a back-to-work agreement. Ultimate-

ly AFA released ALPA from its commitment. ALPA sub-

sequently ratified the tentative agreement with United

and the strike came to an end.

ALPA filed suit alleging that United’s actions with

respect to the Group of 500, the rebid procedure, and the

guaranteed salaries for the replacement pilots violated the

RLA. The district court agreed with ALPA regarding the

rebid and the Group of 500, but held that the hiring of

the replacement pilots was lawful. The court ordered that

United be enjoined from implementing the strike bid awards

and also from preferring nonstrikers over strikers in

vacancies that may arise. The court directed United to

restore the Group of 500 to employee status and to assign

them immediately to line service if they have completed

training or allow them to first complete training. In so

ruling, the district court rejected United’s contention that

ALPA was not entitled to injunctive relief on grounds

that it had violated the RLA by conditioning the end of

the strike upon United reaching a back-to-work agreement

with AFA and by otherwise acting with “unclean hands.”

The court subsequently amended its order noting that

the Group of 500 had been permanently replaced during

the strike and hence that they had no right to immediate

employment, but rather were to be given preference when

vacancies arose. The court also denied ALPA’s motion

seeking back pay for the Group of 500. The court noted

that since these pilots had been properly replaced dur-

ing the strike they were entitled to only back-dated senior-

ity and preferential hiring.

United appeals the court’s decision arguing that it was

error to hold the airline in violation of the RLA with re-

spect to the Group of 500 and the rebid procedure. Even

————

lla

if its actions are unlawful, United contends that ALPA

is not entitled to injunctive relief. ALPA cross-appeals

alleging that, among other things, the court erred in hold-

ing that United’s hiring of replacements was lawful and

in ruling that members of the Group of 500 were not en-

titled to either immediate reinstatement or back pay.

II.

Before reaching the merits of this case, it is necessary

that we first briefly examine the relevant provisions of

the RLA.5 As the Supreme Court noted in Brotherhood

of Railroad Trainmen v. Jacksonville Terminal Co., 394

U.S. 369 (1969), the “heart” of the RLA is the duty placed

on management and labor “ ‘to exert every reasonable ef-

fort to make and maintain agreements concerning rates

of pay, rules, and working conditions, and to settle all

disputes . . . in order to avoid any interruption to com-

merce or to the operation of any carrier growing out of

any dispute between the carrier and the employees there-

of.’ Id. at 377-78 (quoting 45 U.S.C. § 152, First (1982)).

See 45 U.S.C. § 151a(1) (one purpose of the RLA is “{t]o

avoid any interruption to commerce or to the operation

of any carrier engaged therein”). Accord Chicago & North

Western Railway v. United Transportation Union, 402

U.S. 570, 574 (1971). The RLA was enacted to encourage

collective bargaining by the parties “‘in order to prevent,

if possible, wasteful strikes and interruptions of interstate

commerce,” especially in cases where major disputes® are

involved. Detroit & Toledo Shore Line Railroad v. United

5 Congress made the RLA applicable, with few exceptions not

relevant here, to the airline industry in 1936. See 45 U.S.C. § 181

et seq. (1982).

* Non-representational disputes arising under the RLA are char-

acterized either aS major or minor disputes. Depending upon the

type of dispute encountered, the RLA prescribes different adjust-

ment procedures for resolution. A minor dispute is one involving

questions regarding the application or interpretation of an existing

collective bargaining agreement. Conversely, a major dispute, such

(Footnote continued on following page)

12a

Transportation Union, 396 U.S. 142, 148 (1969) (footnote

omitted).

In settling major disputes such as the one involved here

under the RLA a two-stage process is followed. The party

seeking a change in rates of pay, rules, or working con-

ditions must first give notice and confer with the other

party. 45 U.S.C. § 156 (1982). See 45 U.S.C. § 152, Second

(1982). If this conference fails to resclve the dispute, either

or both parties may seek the mediation services of the

National Mediation Board. The NMB may also act, sua

sponte, in an emergency situation. 45 U.S.C. § 155, First

(1982). If mediation by the NMB proves to be unsuccess-

ful, the NMB is required to endeavor to induce the par-

ties to submit the matter to binding arbitration. However,

arbitration cannot be forced upon the parties; rather, ar-

bitration is permitted only where the parties mutually con-

sent. 45 U.S.C. §§ 155, First, 157 (1982). If arbitration

is rejected and if the dispute threatens “substantially to

interrupt interstate commerce to a degree such as to de-

prive any section of the country of essential transporta-

tion service,” the NMB must contact the President who

is then free to create an emergency board to “‘investi-

gate and report respecting such dispute.” 45 U.S.C. 8 160

(1982). Throughout this first step of the mandated dispute

resolution, the parties are barred from unilaterally alter-

ing the established status quo. 45 U.S.C. §§ 152, Seventh,

155, First, 156, 160 (1982).

8 continued

as the one involved here, “relates to . . . the formation of collec-

tive bargaining agreements or efforts to secure them.” Elgin,

Joliet & Eastern Railway v. Burley, 325 U.S. 711, 723 (1945). See

Burlington Northern Railroad v. Brotherhood of Maintenance of

Way Employees, No. 86-1666, slip op. at 7-8 (7th Cir. June 4, 1986).

The RLA does not use the terms “minor” and ‘major’ dispute;

rather, these terms were coined by the Supreme Court in Elgin,

supra. Local 558, Transport Workers Union of America v. Eastern

Air Lines, Inc., 695 F.2d 668, 673 (2d Cir. 1982).

l3a

Once these procedures have been followed without the

dispute being resolved, the parties are free in the second

stage, except as they may be otherwise limited by statute,

to engage in economic self-help. Although the RLA is

silent as to what may lawfully occur in this period, Bur-

lington Northern Railroad v. Brotherhood of Maintenance

of Way Employees, No. 86-1666, slip op. at 10 (7th Cir.

June 4, 1986), it is undisputed that “iJmplicit in the stat-

utory scheme . . . is the ultimate right of the disputants

to resort to self-help—‘the inevitable alternative in a stat-

utory scheme which deliberately denies the final power

to compel arbitration.’ Jacksonville Terminal Co., 394

U.S. at 378 (quoting Florida East Coast Railway v. Broth-

erhood of Railroad Trainmen, 336 F.2d 172, 181 (5th Cir.

1964), cert. denied, 379 U.S. 990 (1965)). This is not to say,

however, that a disgruntled employer is free to use self-

help measures to rid itself of a union or unnecessarily

alter the employer-employee relationship. Unions and the

employees they represent are similarly limited in the types

of self-help measures they can employ. See Jacksonville

Terminal Co., 394 U.S. at 392 (recognizing that “parties

who have unsuccessfully exhausted the Railway Labor

Act’s procedures for resolution of a major dispute [are

allowed] to employ the full range of whatever peaceful

economic power they can muster, so long as its use con-

flicts with no other obligation imposed by federal law’’).

Cf. Brotherhood of Railway & Steamship Clerks v.

Florida East Coast Railway, 384 U.S. 238, 247 (1966)

(noting that in a case where the collective bargaining

agreement is still in effect that “(while the carrier has

the duty to make all reasonable efforts to continue its

operations during a strike, its power to make new terms

and conditions governing the new labor force is strictly

confined, if the spirit of the Railway Labor Act is to be

honored”’) (footnote omitted).

With respect to unions, the RLA provides specific statu-

tory protections which ensure that an employer cannot

implement measures under the guise of self-help which

are intended solely to destroy a union’s ability to repre-

sent its membership. See 45 U.S.C. § 151a(2) (one pur-

14a

pose of the RLA is “‘to forbid any limitation on freedom

of association among employees or any denial, as a con-

dition of employment or otherwise, of the right of em-

ployees to join a labor organization”) (1982).7 For exam-

ple, the Act provides that employee and employer repre-

sentatives for collective bargaining purposes be chosen

“by the respective parties without interference, influence,

or coercion by either party.” 45 U.S.C. § 152, Third. Simi-

larly, ‘“{elmployees shall have the right to organize and

bargain collectively through representatives of their own

choosing.”’ 45 U.S.C. § 152, Fourth. In order to protect

this right, the RLA provides that management may not

deny or in any way question the right of its em-

ployees to join, organize, or assist in organizing the

labor organization of their choice, and it shall be un-

lawful for any carrier to interfere in any way with

the organization of its employees, or to use the funds

of the carrier in maintaining or assisting or contribut-

ing to any labor organization, labor representative,

or other agency of collective bargaining, or in per-

forming any work therefor, or to influence or coerce

employees in an effort to induce them to join or re-

main or not to join or remain members of any labor

organization, or to deduct from the wages of em-

ployees any dues, fees, assessments, or other con-

7 We recognize that in Burlington Northern Railroad, supra, we

stated that the “purposes laid out in § 15la are useful only in

understanding the meaning of the terms that appear in the stat-

ute”’ and that “(t]hey are not warrants for inventing prohibitions

the Railway Labor Act does not contain.” Slip op. at 14. The in-

stant case involves, as opposed to the situation in Burlington,

specific statutory protections which limit the scope United’s self-

help measures could take. Accordingly, we need not rely on section

15la to derive limits to self-help, but rather can look to express

statutory language. In so doing, we are free to examine section

15la, as we noted in Burlington, to facilitate our statutory

interpretation.

15a

tributions payable to labor organizations, or to col-

lect or to assist in the collection of any such dues,

fees, assessments, or other contributions... .

Id. In the same way, the RLA also prohibits management

from requiring ‘“‘any person seeking employment to sign

any contract or agreement promising to join or not to join

a labor organization.” 45 U.S.C. § 152, Fifth.

In the present case, the problem we face is to ascer-

tain whether the various self-help measures employed by

both United and ALPA unlawfully impinged upon

statutory protections provided under the RLA. At first

glance, it may seem that this problem could be easily

resolved; either an action is or is not in contravention of

federal law. However, in reality, it is a difficult question

to determine when, if ever, an otherwise legitimate self-

help measure begins to impede upon a statutory protec-

tion. In implementing self-help measures to ensure the

continuation of its operation during the strike, United

necessarily acted, either intentionally or unintentionally,

in ways that adversely affected ALPA members. Similar-

ly, ALPA acted in ways which adversely affected United.

In such a situation, it was inevitable that a clash oc-

curred between United’s right to self-help and ALPA

members’ right to organize without being coerced or influ-

enced. Our function now is to determine whether the ap-

propriate balance between competing rights was achieved.

Cf. Empresa Ecuatoriana De Aviacion S.A. v. District

Lodge No. 100, 690 F.2d 838, 844-45 (11th Cir. 1982)

(upholding in a minor dispute case, the district court’s con-

clusion that “the carrier struck a proper balance between

its twin obligations to serve the public and to attempt

reasonably to maintain the employer-employee relation-

ship”), cert. dismissed, 463 U.S. 1250 (1983).

The first issue we reach in this regard is whether the

district court erred in concluding that United’s rebidding

of the airline violated the RLA. The district court found

that United’s rebid was unlawful since the airline “failed

to justify the rebid as reasonably necessary for its opera-

16a

tions during the strike” and because United’s actions were

motivated by anti-union considerations.

As the district court noted, it is well-established under

the RLA that once the mediation and arbitration step has

been completed, albeit unsuccessfully, both sides are free

to engage in self-help as a means of continuing operations

as well as a means of inducing a settlement. As a result,

United was free within certain bounds to take the steps

necessary to continue flying; the airline’s right to employ

self-help measures during the strike stopped, however,

where its duties under the RLA and other laws began.

See Jacksonville Terminal Co., 394 U.S. at 392.

ALPA contends, citing 45 U.S.C. § 152, Third and

Fourth, that the RLA prohibits empleyers from retaliating

against employees for engaging in a lawful strike. Al-

though we agree with this proposition as a general mat-

ter, our analysis cannot end here. The real issue is what

constitutes unlawful retaliation. It goes without saying

that since the Act provides for the use of self-help by an

employer, all measures of self-help cannot constitute un-

lawful retaliation. To assist us in resolving this issue

ALPA suggests that we refer, as the district court did,

to the National Labor Relations Act (the “NLRA” or the

“Wagner Act’’), 29 U.S.C. § 151 et seg. (1982) “as a de-

finitive guide to contemporary meaning”’ of identical terms

used both in the NLRA and the RLA. ALPA contends

that the similarity between the relevant provisions of the

NLRA and the RLA mandates that the two statutes be

generally interpreted in the same way.

United, on the other hand, argues that the NLRA and

the RLA were never intended by Congress to be applied

in similar fashions, an intent the courts, United contends,

have respected. The Second Circuit has noted that the

NLRA and the RLA were directed at remedying prob-

lems in different arenas where the relative economic

power of the participant labor organizations vis-a-vis the

employer varied:

a a

17a

The special situation in the railroad industry, where

strong unions and management had become used to

dealing with each other, differed vitally from the host

of problems at which the Wagner Act was aimed—

businesses of every size and description, many with

a history of strong anti-union bias and with ample

opportunity for strong-arm tactics. It was thus

natural that the Wagner Act should stress adminis-

trative adjudication whereas the earlier Railway

Labor Act relied primarily on mediation.

Ruby v. American Airlines, Inc., 323 F.2d 248, 256 (2d

Cir. 1963), cert. denied, 376 U.S. 913 (1964). See Klemens

v. Air Line Pilots Association, International, 736 F.2d

491, 496 (9th Cir.) (noting that ‘t]he NLRA and the RLA

are fundamentally different’’), cert. denied, 105 S. Ct. 435

(1984). Indeed, even the Supreme Court has concluded

that “the National Labor Relations Act cannot be im-

ported wholesale into the railway labor arena. Even rough

analogies must be drawn circumspectly, with due regard

for the many differences between the statutory schemes.”

Jacksonville Terminal Co., 394 U.S. at 383 (footnote omit-

ted). Accord Chicago & North Western Railway v. United

Transportation Union, 402 U.S. at 579 n.11 (1971) (noting

that “‘all parallels between the NLRA and the [RLA].. .

should be drawn with the utmost care’’); Ruby, 323 F.2d

at 256 (‘‘the claim that the courts should do under the

Railway Labor Act what Congress directed the NLRB

to do under the National Labor Relations Act not only

flies in the face of the difference in the language and

scheme of the two statutes but ignores the diverse prob-

lems to which they were addressed’’).

Although it is clear that comparisons between the

NLRA and the RLA must be carefully constructed, we

nonetheless believe that the district court did not err,

though relying on cases interpreting the NLRA, in con-

cluding that United’s implementation of the rebid was un-

lawful. In its ruling, the district court relied heavily upon

the Supreme Court’s decision in NLRB v. Erie Resistor

Corp., 373 U.S. 221 (1963). In Erie Resistor, the Court

18a

held, even in the absence of a showing of illegal motive

on the part of the employer, that it was an unfair labor

practice under section 8(a) of the NLRA, 29 U.S.C. § 158

(1982), for an employer to give preference to replacements

and nonstriking workers by giving them a twenty-year

seniority credit relative to those workers who refused to

cross the picket line. 373 U.S. at 236-37.

Although ALPA argues that Erie Resistor controls here,

and that any type of super-seniority serves necessarily

to undermine a union in contravention of the RLA, we

need not reach that issue.® First, as noted above, simply

because a practice is deemed unlawful under the NLRA

does not automatically translate into a finding that the

same practice is unlawful under the RLA. Second, and

more important, are the findings made by the district

court that the rebid procedure employed by United was

not needed for it to continue during the strike and that

the rebid was motivated by anti-union sentiment.

With respect to the business necessity for the rebid, it

is uncontested that throughout the strike no nonstriker

actually filled a vacancy that was awarded during the

rebid. Yet, at the same time, the rebid significantly

harmed those pilots who refused to cross the picket line.

For example, Group of 500 members who crossed the picket

line were able to gain between 2,960 and 5,090 places on

the seniority list in bidding for DC-10 captain positions.

In some cases this represented a jump in seniority of be-

tween 19 to 29 years. The jump in seniority for B-727

captains bidding for DC-10 or B-747 captain positions was

five years (from B-727 captain median seniority to DC-10

captain lowest seniority) and a $24,000 pay increase.

In Brotherhood of Railway & Steamship Clerks v. Flor-

ida East Coast Railway, supra, the Supreme Court held

that changes in the relationship between employer and

employee that result from self-help measures implemented

® Because of our resolution of this issue, we do not consider

United’s argument that the rebid did not involve the type of super-

seniority which the Court found unlawful in Erie Resistor.

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19a

must be shown to be reasonably necessary to keep the

operation of the carrier ongoing in order to be lawful

under the RLA. 384 U.S. at 248. “{TJhe burden is on the

carrier to show [that] the need for any alteration of” the

collective bargaining agreement is necessary “in order to

maintain that continuity of operation that the law requires

of it.” Id. Although Brotherhood of Railway & Steamship

Clerks v. Florida East Coast Railway arose in a situa-

tion where the collective bargaining agreement was still

in effect, we see no reason to depart totally in the post-

contract period from its holding that some showing of a

reasonable business justification is required before a court

will allow an employer to implement self-help measures

which, whether intentional or not on their face, undercut

the union’s ability protected by the RLA to function as

an effective representative for its members. See Erie Re-

sistor, 373 U.S. at 228 (noting that “{tJhe employer...

must be held to intend the very consequences which fore-

seeably and inescapably flow from his actions”). But cf.

Belknap, Inc. v. Hale, 463 U.S. 491, 504-05 n.8 (1983) (dis-

cussing validity of requirement that permanent replace-

ments can only be hired when business necessity is shown).

The provisions of the RLA that seek to protect employ-

ees’ rights to join and participate in a union would seem

to require nothing less.

In the present case, although striking ALPA members

would be harmed by the rebid, United now seeks to im-

pose it on its pilots solely in order to keep its word to

those pilots who crossed the picket line. United does not

contest the district court’s conclusion that the rebid was

not necessary to ensure the continuation of the airline’s

operations during the short-lived strike that actually took

place, and, in fact, concedes that the rebid had little im-

pact upon pilots in terms of inducing them to report to

work “‘as demonstrated by the pilots’ solidarity in hon-

oring the picket line.” (Defendant-Appellant’s Reply Br.

at 50 n.46). From this lack of efficacy it is at least ar-

guable that the rebid was devoid of any business justi-

fication whatsoever, and we cculd accordingly conclude

that United’s actions were merely meant to coerce pilots

20a

to abandon their membership in the union in violation of

the RLA. ;

In the typical situation, however, the failure of an al-

legedly lawful self-help measure to effectuate a desired

result may well not be a sufficient basis upon which to

conclude that the employer’s motive in implementing the

measure was to destroy the employees’ union. Indeed, in

the present case, United argues that the rebid was not

only an attempt to induce pilots to cross the picket line,

but was also the first step in rebuilding the airline’s pilot

structure. United contends that by rebidding the airline

early in the strike it was in a better position to deter-

mine its future needs so that pilots could be trained for

vacant positions in the event the strike were to continue

for a long time. If this were all that the record revealed,

we would be inclined to agree with United that its rebid

was necessary to keep the airline flying.

The record to the contrary shows, however, as the dis-

trict court concluded, that United’s actions with respect

to the rebid were taken more out of spite for ALPA than

in hopes of rebuilding the airline.® See Erie Resistor, 373

U.S. at 228 (“Conduct which on its face appears to serve

legitimate business ends . . . is wholly impeached by the

showing of an intent to encroach upon protected rights.

The employer’s claim of legitimacy is totally dispelled.’’)

(footnote omitted). The trial court found that ALPA ‘“‘es-

tablished specific evidence of United’s intent of coercion

and discrimination against union membership by virtue of

the rebid procedure.” 614 F. Supp. at 1046. In fact, the

court noted that United’s rebid was part of a plan “which

was intended to break the strike by causing a ‘stampede’

of striking pilots to cross the picket line.” Jd. The record

further indicates that when a United official presented the

rebid plan to a meeting of the airline’s corporate officers,

no business justification was given for the plan. Even

® Whether or not a showing of business necessity could legitimize

the rebid as a lawful self-help measure in the absence of anti-union

motivation is a question we leave for another day.

21a

United Chairman Ferris conceded that the rebid plan was

meant to cause “ ‘penalty and harm and hurt’” and if

the pilots refused to work “ ‘the harm will hit, and the

union will never negotiate that away.’ ” 614 F. Supp. at

1052.

United argues that the district court erred in inferring

that the rebid was motivated by anti-union sentiment. We

disagree. Our review of the record indicates that the rebid

was an attempt by United either to destroy the union

or at the very least discourage union membership. In

other words, we do not believe, contrary to United’s posi-

tion, that the trial court’s findings with respect to anti-

union motivation are clearly erroneous and, therefore, they

must be upheld.!®

The existence of anti-union motivation, by itself, pro-

vides a sufficient basis upon which to uphold the district

court’s decision with respect to the rebid procedure. An

employer is not free under the RLA, in the guise of self.

help, to act “‘to influence or coerce employees in an ef.

fort to induce them . . . not to join or remain members

of any labor organization.” 45 U.S.C. § 152, Fourth. Cf.

Conrad v. Delta Air Lines, Inc., 494 F.2d 914, 918 (7th

Cir. 1974) (noting that under the RLA “{a}nti-union moti-

vation invalidates even a discharge which could be justi-

fied on independent grounds’’). Although United had the

right to employ self-help, that right was limited. Under

the circumstances presented here, we can only conclude

that, in the balance between United’s right to self-help

and its duty to respect ALPA’s right to exist and func-

tion, the district court did not err in finding that United’s

actions regarding the rebid violated the RLA.™

‘© Although the district court characterized its findings of anti-

union motivation as conclusions of law, in essence, they are fac-

tual findings and hence are reviewed under the clearly erroneous

standard.

‘1 Because we conclude that United’s rebid was motivated by

anti-union sentiment, we have no need to consider United's

(Footnote continued on fo'lowing page)

224

Even conceding, arguendo, that its rebid violated the

RLA, United argues that ALPA is nonetheless ineligible

for the injunctive relief the district court granted because

of “unclean hands.” United contends that ALPA’s bar-

gaining to impasse with respect to and conditioning ratifi-

cation of the new agreement upon United reaching a back-

to-work agreement with the flight attendants, ALPA’s

photographing of nonstriking pilots, and its use of eco-

nomic warfare during the cooling-off period constitute ‘“‘un-

clean hands’”’ thereby disqualifying the union from receiv-

ing injunctive relief. United argues that these actions: (1)

violated ALPA’s duty to bargain in good faith under sec-

tion 2, First of the RLA, 45 U.S.C. § 152, First; (2) con-

stituted unlawful bad faith and coercive acts; and (8) vio-

lated the RLA’s status quo provisions forbidding use of

economic warfare prior to the end of the cooling-off period.

The district court concluded, however, that United failed

to establish that any of its affirmative defenses were a

bar to ALPA receiving injunctive relief.

In making its ruling, the district court correctly noted

that any party seeking injunctive relief under the RLA

must comply with section 8 of the Norris-LaGuardia Act,

28 U.S.C. § 108 (1982).12 See Brotherhood of Railroad

Trainmen, Enterprise Lodge, No. 27 v. Toledo, Peoria &

11 continued

arguments: (1) that the rebid was nothing more than a means of

introducing permanent replacements into the system; (2) that the

rebid was lawful since the collective bargaining agreement had ex-

pired and with it the pilots’ seniority rights; and (3) that the rebid

was consistent with the RLA since a bargaining impasse had been

reached and United was therefore free to effect changes in its

agreement with ALPA. Even if we assumed that these arguments

had merit and that United’s actions would, in the normal case,

be lawful, the existence of anti-union motivation in implementing

the rebid still constitutes a violation of the RLA sufficient to

uphold the district court’s decision.

12 United’s sole contention is that ALPA is ineligible for injunc-

tive relief under the Norris-LaGuardia Act on the basis of ‘‘unclean

hands.”

23a

Western Railroad, 321 U.S. 50, 56 (1944). Pursuant to sec-

tion 8

(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 ar-

bitration.

29 U.S.C. § 108 (1982). In Brotherhood of Railroad

Trainmen, the Supreme Court noted that in general

terms section 8 places two requirements on a party seek-

ing injunctive relief for violations under the RLA: “(1)

to comply with any obligation imposed by law [and] (2)

to make every reasonable effort to settle the dispute

.... 821 U.S. at 56-57. Failure to fulfill either one or

both of these requirements will generally result in the

complainant being denied relief. Jd. at 57.'%

Although the Court’s decision in Brotherhood of Rail-

road Trainmen could be construed as implying an absolute

duty to fulfill the two prerequisites before injunctive relief

could be forthcoming, in limited circumstances courts have

refused such a mechanical approach. See Illinois Central

Railroad v. Brotherhood of Railroad Trainmen, 398 F.2d

973 (7th Cir. 1968) (per curiam). The Norris-LaGuardia Act

has never been construed to bar an injunctive remedy

when such relief is necessary to reach important objec-

13 United argued in a pretrial motion that ALPA violated the settle-

ment component of section 8 by failing to accept NMB’s proffer

of arbitration. United had likewise declined the invitation to arbi-

trate the dispute in the prestrike period. The district court denied

United’s motion concluding that ALPA made every reasonable ef.-

fort to settle the dispute. (The district court’s opinion is reported

at 610 F. Supp. 243). United does not appeal this ruling. Accord-

ingly, we look only at United’s contention that ALPA failed to

comply with legal obligations thereby rendering the union ineligi-

ble for injunctive relief pursuant to section 8.

24a

tives of federal labor law. See Boys Markets, Inc. v. Retail

Clerks Union, Local 770, 398 U.S. 235, 251-52 (1970).

Rather, where parties seek injunctive relief under the

RLA, the proper role of the courts is to ensure that the

“obvious purpose” of both the RLA and the Norris-

LaGuardia Act is preserved. Brotherhood of Railroad

Trainmen v. Chicago River & Indiana Railroad, 353 U.S.

30, 40 (1957). See Chicago & North Western Railway v.

United Transportation Union, 402 U.S. at 583; Virginian

Railway v. System Federation No. 40, 300 U.S. 515, 563

(1937).

As a result, in dealing with the legal obligations com-

ponent of section 8 as it relates to the RLA, courts have

tended to weigh the competing equities to determine

whether applying section 8’s bar to injunctive relief would

serve to further underlying purposes of both the RLA

and the Norris-LaGuardia Act. In Illinois Central Rail-

road v. Brotherhood of Railroad Trainmen, supra, for ex-

ample, we declined to employ section 8 as a bar to in-

junctive relief where the employer, who had arguably vio-

lated the status quo provisions of the RLA, was seeking

a strike injunction. As we noted in that case:

[E}]ven if the Brotherhood were correct in contending

that the railroad lacked clean hands, Section 8 of the

Norris-LaGuardia Act would not of necessity preclude

the issuance of an injunction against a strike by the

Brotherhood. . . . “It may be that in a particular case

the District Court might conclude that the impera-

tives of the Railway Labor Act override Section 8—a

statutory focusing so to speak of an equity approach

whereby lack of clean hands may be overcome by a

balancing of interests, particularly where it is the

public interest involved.”

398 F.2d at 975-76 (quoting Brotherhood of Railroad

Trainmen v. Akron & Barberton Belt Railroad, 385 F.2d

581, 614 (D.C. Cir. 1967), cert. denied, 390 U.S. 923 (1968)).

See Chicago & North Western Transportation Co. v. United

Transportation Union, 495 F. Supp. 448, 452 (N.D. Ill.

1980), aff'd, 656 F.2d 274 (7th Cir. 1981).

25a

With these principles in mind, we proceed to an exami-

nation of ALPA’s conduct which United claims should bar

the union from receiving injunctive relief. The first. ac-

tion United complains of is ALPA’s bargaining tactics

relative to the AFA’s back-to-work agreement. United

maintains, relying in part on NLRB v. Wooster Division

of Borg-Warner Corp., 356 U.S. 342, 349 (1958), that a

party such as ALPA may not, in good faith, bargain to

impasse over permissive subjects of collective bargaining.

In Borg-Warner, the Supreme Court ruled that under the

NLRA parties are entitled to bargain to impasse over

mandatory subjects of collective bargaining, i.e., wages,

hours, and other terms and conditions of employment,

without violating their duty to bargain in good faith. With

respect to other issues, 7.e., permissive or non-mandatory

subjects, parties are not free to insist upon their posi-

tion to impasse without violating their good faith bargain-

ing duty. In other words, “good faith does not license the

employer to refuse to enter into agreements on the ground

that they do not include some proposal which is not a

mandatory subject of bargaining.” Jd. In the instant case,

United alleges that ALPA violated its duty to bargain

under section 2, First of the RLA when it bargained to

impasse over the issue of AFA’s back-to-work agreement.

In short, United is contending that ALPA unlawfully bar-

gained to impasse over a non-mandatory subject.

Although United fails to cite any decision in which a court

applied the Borg-Warner analysis in a case arising under

the RLA, our own research indicates that the mandatory-

permissive distinction is applicable under section 2, First.

See Japan Air Lines Co. v. International Association of

Machinists & Aerospace Workers, 538 F.2d 46, 51-52 (2d

Cir. 1976) (appellate court affirming district court’s applica-

tion of mandatory-permissive distinction in case arising

under RLA and rejecting union argument that labor and

management should meet and negotiate with respect to

any proposal advanced by either party); Elgin, Joliet &

Eastern Railway v. Brotherhood of Railroad Trainmen,

26a

302 F.2d 540, 543-44 (7th Cir.) (discussion of whether pen-

sion agreements constitute subjects of mandatory collec-

tive bargaining under the RLA), cert. denied, 371 U.S.

823 (1962). Cf. First National Maintenance Corp. v.

NLRB, 452 U.S. 666, 686 n.23 (1981) (noting that “[t]he

mandatory scope of bargaining under the Railway Labor

Act . . . [#8] not coextensive with the National Labor Re-

lations Act”). Indeed, the use of the mandatory-permissive

distinction under the RLA is entirely consistent with its

statutory framework. Section 2, First provides that par-

ties “exert every reasonable effort to make and maintain

agreements concerning rates of pay, rules, and working

conditions.” 45 U.S.C. § 152, First (1982). It is self-evident,

therefore, that, unless parties are to be required to bar-

gain over every issue, see Japan Air Lines, 538 F.2d at

51, the mandatory subjects under the RLA must be lim-

ited to those enumerated in the Act. From this it logically

follows, that, given the parties’ duty to exert every rea-

sonable ‘effort to reach agreement on these mandatory

subjects, a refusal to bargain over these issues until an

agreement is reached on a non-mandatory subject would

violate a party’s duty to bargain under section 2, First.

In the present case, ALPA argues that the issue of the

AFA agreement was in fact a mandatory subject of bar-

gaining and hence, even if we were to find that a bargain-

ing impasse was reached on this issue, no violation of the

bargaining duty occurred. However, we need not reach

ALPA’s argument since we conclude that, contrary to

United’s position, the district court did not err in finding

that ALPA did not bargain in bad faith with respect to

the AFA agreement. First, the district court concluded

that United failed to present any evidence to support its

“contention that ALPA sought to bargain over the provi-

sions of a back-to-work agreement for flight attendants

who honored ALPA’s picket line.” 614 F. Supp. at 1048.

Our review of the record supports this finding and we

hold that the district court’s conclusion that no bargain-

ing impasse was reached regarding the provisions of the

27a

AFA agreement must stand since it is not clearly erro-

neous. !4

Although finding no bargaining impasse with respect to

the provisions of the AFA back-to-work agreement, the

district court did note that ALPA informed United that

it would honor its commitment not to ratify an agreement

with United until the flight attendants had negotiated

their back-to-work agreement. United contends that by

conditioning the ratification of its own agreement upon

AFA reaching a satisfactory agreement, ALPA violated

its duty to bargain by insisting on a permissive subject

of bargaining.

We recognize that under certain circumstances such a

commitment, if carried out to the letter, could constitute

a violation of the employees’ duty to bargain in good faith.

NLRB v. South Atlantic & Gulf Coast District Interna-

tional Longshoremen’s Association, 443 F.2d 218 (5th Cir.

1971), involved, for example, a longshoremen’s strike in

which the picket line was honored by members of another

union. Although the longshoremen eventually returned to

work, they refused to do so until the employers reached

an accord with the union that had respected the picket

line. The Fifth Circuit held that the actions of the long-

shoremen violated their duty to bargain under the NLRA.

In so doing, the court noted:

'# In the district court, United also argued that ALPA imper-

missibly bargained to impasse over issues involving the Group of

500 and Training Check Airmen (“TCAs”). On appeal, United does

not raise any issue with respect to an unlawful impasse over issues

relating to the Group of 500. In a footnote, United does contend

that ALPA’s insistence on bargaining over the TCAs was unlawful.

United maintains that the TCAs are management personnel and

are hence excluded from protections afforded other employees

under the RLA. Even if we assume this characterization is cor-

rect, United nonetheless fails to substantiate its claim that ALPA

unlawfully bargained to impasse with respect to the TCAs. With-

out something more, we see no need to question the district court’s

finding that no impasse was reached on this issue.

28a

When parties to collective bargaining reach a final

agreement on the terms of the agreement, they have

a duty to execute that agreement by written con-

tract, and this duty may not be avoided by injecting

extraneous issues into the negotiations. . . . [A]s put

by the trial examiner: “. . . A union enjoying statu-

tory status as exclusive representative of ali employ-

ees within a bargaining unit may not unilaterally ex-

tend the scope of its agency authority and insist to

impasse upon the employer’s capitulation to the

demands of other employees and other unions.”

Id. at 220 (citations omitted).

Similarly, in Standard Oil Co. v. NLRB, 322 F.2d 40

(4th Cir. 1963), the court held that the union violated its

duty to bargain by refusing to execute an agreement with

its employer. In so holding, the court noted with approval

that the NLRB had concluded that the union’s refusal

‘“‘was unrelated to any dissatisfaction with the contract

terms themselves but was based upon the [union’s] uni-

lateral decision to approve no agreement with the Com-

pany until negotiations were satisfactorily concluded by

another local.’ Jd. at 45.

Although United contends otherwise, we do not believe

that the district court erred in finding that ALPA’s be-

havior with respect to the AFA was not in contravention

of its duty to bargain in good faith. Unlike the situation

in both South Atlantic and Standard Oil, ALPA, though

stating that it would not ratify its agreement until an

agreement was reached with AFA, never carried out its

threat. Indeed, AFA released ALPA from its obligation

prior to the time ALPA was faced with the prospect of

ratifying a new agreement with United. Moreover, ALPA

never conditioned its negotiations upon United’s reaching

a satisfactory back-to-work agreement with AFA; rather,

ALPA initially stated only that it would not ratify a ten-

tative agreement once one was reached prior to the time

that AFA reached an accord with United. Since ratifica-

tion of the agreement between ALPA and United was

294

never hindered by ALPA’s promise to AFA, we find that

ALPA’s actions with respect to this matter were not in

violation of its duty to bargain in good faith.

The next action United claims gave ALPA unclean

hands was the union’s photographing of nonstriking pilots

as they crossed picket lines and as they performed their

duties during the strike. United argues that this action

constituted unlawful coercion under the RLA. Although

United raises this issue in its brief, it cites no authority

interpreting the RLA to support its position nor does it

even discuss the issue apart from its bare allegation that

the conduct was unlawful. Nonetheless, it is generally ac-

knowledged that it is unlawful for an employer under the

NLRA to take photographs of picket line actevity if the

tendency of such action is to interfere with, restrain, or

coerce employees engaged in protected concerted action.

See Flambeau Plastics Corp., 167 N.L.R.B. 735, 742-43

(1967), enf'd, 401 F.2d 128 (7th Cir. 1968), cert. denied,

393 U.S. 1019 (1969). At the same time, “an employer may

validly photograph a picket line to substantiate picket line

misconduct or to gather evidence for use in injunctive or

unfair labor practice proceedings.” Road Sprinkler Fit-

ters Local Union No. 669 v. NLRB, 681 F.2d 11, 19 (D.C.

Cir. 1982) (citing NLRB v. Colonial Haven Nursing

Home, Inc., 542 F.2d 691, 700-02 (7th Cir. 1976)), cert.

denied, 459 U.S. 1178 (1983). Although these cases arise

under the NLRA, we see no reason why they do not ap-

ply equally as well to the RLA.

Simply recognizing that photographing picket lines may

constitute unlawful conduct does not end our inquiry, how-

ever. The present case arises in a different context than

those cited above. In both Flambeau Plastics and Road

Sprinkler Fitiers, it was the employers, as opposed to the

employees as in the instant case, who were taking pic-

tures in an attempt at coercion. Whether or not the RLA

would protect an employee against coercive union action

is a question neither United nor ALPA address. ALPA

contends that we need not even reach that issue since

30a

its photography was solely a legitimate attempt to ascer-

tain the extent of the strike by determining the number

of pilots who crossed the picket line. Indeed, ALPA

argues that United failed to present any evidence that

the photography was intended to or had the effect of in-

timidating pilots who continued to fly for the airline.

In the end, we have no need to resolve either the issue

of whether ALPA was barred from coercing its members

or the issue of whether ALPA acted legitimately since

even if we assume that ALPA’s actions were unlawful,

we still find that the district court did not err in grant-

ing injunctive relief. As noted above, courts have recog-

nized that in the appropriate case the public interest im-

peratives of the RL A may override the Norris-LaGuardia

Act’s prohibition against granting injunctive relief to a

party with unclean hands. In the present case, there was

no evidence that ALPA’s conduct harmed United. More-

over, the district court concluded, and we agree, that a

denial of injunctive relief as it relates to the rebid pro-

cedure would only promote United’s self-interest, while

substantially harming those striking pilots affected by the

unlawful rebid. Given the equities of the situation and

since we have already concluded that the rebid is violative

of the RLA, it would be an anomalous situation if the

Norris-LaGuardia Act could be interposed to block a court

from enjoining the implementation of an unlawful plan in

this case. Without injunctive relief, United would seem-

ingly be free to institute the rebid with impunity even

though this court concludes that the contemplated action

is unlawful. In such a situation, the Norris-LaGuardia Act

cannot reasonably be seen to bar injunctive relief if the

obvious purpose of the RLA is to be vindicated. See Em-

presa Ecuatcriana De Aviacion, 690 F.2d at 847 (noting

that “‘a court must keep central to its consideration the

national policies underlying the Railway Labor Act and

not individuai feelings of judges about who has and who

has not behaved badly’). Accordingly, we conclude that

the district court did not err in granting injunctive relief

even though ALPA may have engaged in potentially un-

lawful photography.

3la

The final category of conduct United claims bars ALPA

from receiving injunctive relief encompasses several self-

help measures that United alleges were taken prior to

the exhaustion of the RLA’s mandated procedures. United

argues, therefore, that ALPA violated the status quo re-

quirement of the RLA.

The first self-help measure United raises as a bar to

equitable relief is ALPA’s allegedly abusive use of sick

leave. United contends that member pilots used their ac-

cumulated sick leave, although they were not ill, as an

economic weapon against the airline in the pre-strike

period. The district court concluded, however, that no

status quo violation had been proven since United con-

ceded that it had no evidence showing ALPA involvement

in any plan to abuse sick leave. In fact, at trial, United

failed to identify even a single pilot who had taken sick

leave without being actually sick.

We have no doubt that a concerted union plan to abuse

sick leave as an economic weapon in the pre-strike period

could be found, in the appropriate circumstances, violative

of the RLA. See Texas International Airlines v. Air Line

Pilots Association, 518 F. Supp. 203 (S.D. Tex. 1981).

Nonetheless, as the district court noted, section 6 of the

Norris-LaGuardia Act limits the extent of a union’s poten-

tial liability:

No officer or member of any association or organi-

zation, and no association or organization participating

or interested in a labor dispute, shall be held respon-

sible 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 participa-

tion in, or actual authorization of, such acts, or of

ratification of such acts after actual knowledge

thereof.

29 U.S.C. § 106 (1982). Under this statute, the district

court’s finding that ALPA was not involved in the alleged

abuse of sick leave would generally end the discussion

even if United was able to identify individual pilots who

did abuse the system.

32a

United, however, contends otherwise, relying on Pan

American World Airways, Inc. v. Independent Union of

Flight Attendants, 93 Lab. Cas. (CCH) 4 13,307, 20,035

(S.D.N.Y. July 20, 1981). In Pan American, the court re-

lied upon statistical evidence which revealed a “dramatic

increase”’ in sick leave absences. /d. at 20,036. Relying

in part on this evidence the court issued an injunction

against the “‘sickout” concluding that there is a serious

question regarding whether the union had violated its

obligations under the RLA “by encouraging, or at least

making no reasonable efforts to discourage” abuse of sick

leave by union members. /d. at 20,039. United, noting that

the number of days of sick leave used by its pilots had

doubled in the first four months of 1985, as compared with

the same period in 1984, argues that such statistical evi-

dence is sufficient to implicate ALPA in the alleged sick

leave abuse scheme. We disagree.

In order to establish that section 6 of the Norris-

LaGuardia Act does not insulate ALPA, United was re-

quired to show by “clear proof’ ALPA’s involvement with

the sick leave abuse. As the district court noted, the clear

proof standard required United to prove by clear and con-

vincing evidence, as opposed to a preponderance, ALPA’s

involvement. See United Mine Workers v. Gibbs, 383 U.S.

715, 737 (1966). After reviewing the evidence, the district

court found that ALPA was not engaged in promoting

the abusive use of sick leave and United has failed to con-

vince us that this finding is clearly erroneous. United,

relying on Pan American, argues at some length that the

mere existence of statistical data showing an increased

use of sick leave is sufficient to establish union involve-

ment in the scheme. In Pan American, however, there

was much additional evidence indicating union involvement

in the sickout apart from the statistical evidence including

reports in the media and a notice posted on the union

bulletin board. United’s reliance on Pan American to sup-

port its proposition that statistical evidence standing alone

is sufficient to overcome the trial court’s finding is

misplaced.

33a

United also argues that the campaign to inform travel

agents of an impending strike and the informational pick-

eting of the World Trade Conference should bar ALPA

from receiving injunctive relief. The district court refused

to bar relief on these grounds concluding that such ac-

tions failed to rise to the level of self-help whose imple-

mentation would otherwise be prohibited in the pre-strike

cooling-off period. The trial court, relying on the Supreme

Court’s decision in Detroit & Toledo Shore Line Railroad,

supra, found that the status quo provisions of the RLA

are only intended to prevent a union strike or to keep

management from taking actions that would induce a strike.

In Detroit & Toledo Shore Line Railroad the Court ruled

that the status quo requirement of the RLA was designed

“to prevent the union from striking and management from

doing anything that would justify a strike.” 396 U.S. at

150.

There is no question that the RLA’s status quo require-

ment is intended vo prevent a strike during the cooiing-

off period. See Manning v. American Airlines, Inc., 329

F.2d 32, 35 (2d Cir.) (noting that the status quo require-

ment is “to prevent rocking of the boat by either side

until the procedures of the Railroad Labor Act [have been]

exhausted’’), cert. denied, 379 U.S. 817 (1964); American

Airlines, Inc. v. Transport Workers Union, 57 L.R.R.M.

(BNA) 2484, 2487 (S.D.N.Y. Apr. 17, 1964) (“The resort

to economic self-help during the pendency of the proce-

dures of the Railway Labor Act, by either party to a dis-

pute, is inconsistent with the requirements of that Act.’’).

To avoid any misunderstanding which may arise from a

cursory reading of the district court’s opinion, we must

also note that union conduct, which may not be able to

be classified literally as a strike, but which has the con-

sequences of a strike, is also prohibited during the cooling-

off period. See Detroit & Toledo Shore Line Railroad, 396

U.S. at 150, 152-53. As the court in United Air Lines, Inc.

v. International Association of Machinists, 54 L.R.R.M.

(BNA) 2154 (N.D. Ill. Sept. 5, 1963), noted:

The concerted refusal of overtime, slow-downs, sit-

ins, strikes and other harassments by [the union and

—————————<———

34a

its members] is a violation of the duty imposed by

the Railway Labor Act [i.e., section 2, First] to exert

every reasonable effort to settle all disputes in order

to avoid any interruption to commerce or to the op-

eration of any carrier.

Id. at 2156. See Detroit & Toledo Shore Line Railroad,

396 U.S. at 152 (status quo provisions of the RLA “‘to-

gether with § 2 First, form an integrated, harmonious

scheme for preserving the status quo from the beginning

of the major dispute through the final 30-day ‘cooling-off

period’). See also Long Island Railroad Co. v. System

Federation, No. 156, 289 F. Supp. 119, 125 (E.D.N.Y.

1968).

United argues, relying on American Airlines, Inc. v.

Transport Workers Union, supra, that ALPA’s pre-strike

discussions with travel agents and picketing constituted

self-help which had the consequences of a strike and are

therefore unlawful. In American Airlines, the district

court enjoined the union from engaging in self-help dur-

ing the pre-strike period which the court found to be vio-

lative of the RLA’s status quo provisions. It is true, as

United argues, that part of the union’s concerted action

in American Airlines involved picketing of the employer

airline. .However, the union’s actions in that case went

far beyond mere picketing. The district court found that

the union and its members had “engaged in a series of

concerted work stoppages and mass demonstrations” against

the airline which resulted in flights involving over 1,500

passengers being cancelled or delayed. 57 L.R.R.M. at

2485. Air cargu, air express, and U.S. mail were also

delayed as a result of the union activity. Jd. at 2486. As

a consequence of these actions, the district court found

that the airline had suffered “‘a direct loss of revenue”’

and goodwill, id., and, accordingly, enjoined the union

from engaging in such further pre-strike activity. Jd. at

9

~

In the present case, unlike American Airlines, there

was no evidence presented which would indicate that United

was harmed by the actions of ALPA during the cooling-off

35a

period. Although we do not condone the actions of ALPA

in attempting to undermine public confidence in United’s

ability to continue to provide service, we do not believe

that these actions had the consequences of a strike so as

to violate the status quo provisions of the RLA. There

were no work stoppages or mass demonstrations as a re-

sult of these actions; nor has United provided any evi-

dence that it suffered any resulting economic harm. We

therefore agree with the district court that ALPA’s ac-

tions were not unlawful and hence not a bar to injunc-

tive relief.'5

IT.

The next issue we deal with is ALPA’s contention that

the district court erred in ruling that United’s grant of

guaranteed salaries for fleet-qualified replacements!* was

lawful under the RLA. As we noted above, United offered

fleet-qualified captains and first officers $75,000 per year

and $50,000 per year respectively to serve as permanent

strike replacements, guaranteeing the salaries even if the

pilots were ultimately demoted to second officers once the

strike ended. After the strike was settled, this demotion

15 In the alternative, the district court ruled, relying on our deci-

sion in International Union, Allied Industrial Workers of America

v. Local Union No. 589, 693 F.2d 666 (7th Cir. 1982), that injunc-

tive relief will be barred only where there is a direct nexus be-

tween the bad conduct alleged and the act sought to be enjoined.

The court, concluding that there was no direct nexus between

ALPA’s conduct and the rebid — ruled that United had

failed to show that the unclean hands doctrine would even be ap-

plicable to this case. Because of our resolution of the issue, we

do not reach United’s argument that the district court’s applica-

tion of the direct nexus test is neither supported by /nternational

Union nor otherwise appropriate in this case.

16 The term ‘“‘fleet-qualified replacements” refers to pilots who

were, in most instances, flying for other airlines when ALPA’s

strike against United began. The district court found that when

hired these pilots were ready to serve as captains or first officers

on the type of jets flown by United.

36a

did in fact take place. The new collective bargaining agree-

ment provided that all striking pilots be returned to their

pre-strike positions and, accordingly, all of their replace-

ments were removed from service and began training as

second officers.

ALPA argued in the district court that the replacement

program operated as an unlawful sanction against strik-

ing pilots, noting that the replacement pilots serving as

second officers would be receiving salaries in excess of

other second officers under the terms of the new collec-

tive bargaining agreement. The district court rejected

ALPA’s argument noting: (1) that “the pay scales [offered

the replacement pilots] were reasonable considering the

pilots’ experience and qualifications;”’ (2) that United’s use

of the replacement program was soundly based since the

strike made it necessary for United ‘to offer a pay

scheme sufficient to attract qualified replacements;” and

(3) that the hiring of replacements at guaranteed salary

levels “does not disadvantage striking pilots . . . .” 614

F. Supp. at 1047. ALPA appeals arguing that United’s

action both violated its duty to bargain in good faith since

United failed to negotiate this issue with the union, see

45 U.S.C. § 152, First, and constituted unlawful discrim-

inatory conduct by an employer. See 45 U.S.C. § 152,

Fourth.

There is no question that an employer has the right to

hire permanent replacements in the event of a strike. See

Empresa Ecuatoriana De Aviacion, 690 F.2d at 844. See

also NLRB v. Mackay Radio & Telegraph Co., 304 U.S.

333, 345 (1938) (providing for hiring of permanent strike

replacements under the NLRA); Giddings & Lewis, Inc.

v. NLRB, 675 F.2d 926 (7th Cir. 1982); NLRB v. Mars

Sales & Equipment Co., 626 F.2d 567 (7th Cir. 1980).

ALPA does not challenge United’s right to hire replace-

ment pilots. Nor does ALPA contest United's assertion

that the airline could not have secured the necessary cap-

tains and first officers needed to continue operations dur-

ing the strike without the inducement of the guaranteed

salaries. What ALPA does challenge is United’s purported

37a

failure to negotiate the salaries of the replacement pilots

with the union prior to hiring. ALPA, relying on NLRB

v. Katz, 369 U.S. 736 (1962), contends that, similar to the

situation under the NLRA, an employer’s unilateral deci-

sion to increase wages without prior negotiations consti-

tutes a per se violation of the duty to bargain in good

faith under the RLA. We find this argument without

merit. Even if we were to assume that Katz is applicable

to cases arising under the RLA, it nonetheless has no rel-

evance to an employer’s dealings with potential employees

who may be hired to replace striking workers. As we

noted in Capitol-Husting Co. v. NLRB, 671 F.2d 287, 246

(7th Cir. 1982), “{iJt is settled that this duty [to bargain]

does not extend to the terms and conditions of employ-

ment for replacements of striking employees.”

Even conceding that it generally has no right to nego-

tiate with respect to salaries paid permanent replacement

pilots, ALPA argues that United violated its duty to bar-

gain in good faith by offering salaries to these replace-

ments that were in excess of those offered to union mem-

bers. See Local 259, United Automobile, Aerospace and

Agricultural Implement Workers of America, 776 F.2d

23, 28 (2d Cir. 1985); Burlington Homes, Inc., 246

N.L.R.B. 1029, 1030, 1040 (1979) (concluding that em-

ployer’s offer of a higher starting wage to strike replace-

ments constituted a violation of the NLRA). In essence,

ALPA’s argument is two-fold. First, that United generally

offered the replacement pilots who were ultimately reas-

signed to second officer status more money than it offered

incumbent second officers prior to the strike. ALPA ap-

parently contends that we should consider the hiring of

the replacement pilots as simply the employment of ad-

ditional second officers. It would then follow that United

offered its replacement second officers more money than

was offered its incumbent second officers, a practice which

ALPA contends violated United’s duty to bargain in good

faith. We find ALPA’s argument unpersuasive. At the

time that the replacement pilots were hired, they were

not hired as second officers, but rather as captains and

38a

first officers. Under these circumstances, the proper salary

comparison to make is between the replacement captain

and first officer salaries and incumbent United captain and

first officer salaries. Our review of the record indicates

that the salaries paid replacements were less than those

offered similarly situated incumbent pilots prior to the

strike. On this point, therefore, we need not reach ALPA’s

contention that United’s offers to replacements exceeded

offers to incumbent pilots thereby violating the airline’s

duty to bargain in good faith.

Nor is our analysis affected by the fact that the

replacements who were hired as captains and first officers

at guaranteed salaries were later reassigned to second of-

ficer status. The relevant point of comparison is at the

time when United hired the replacement pilots. At that

point, the salary offers made to the replacement captains

and first officers were less than the proposals made to

similarly situated incumbent pilots. ALPA’s contention

that the replacements were offered more money to serve

in similar positions is simply misplaced.

The second prong of ALPA’s argument is that the prop-

er point of reference with respect to the replacement

pilots’ salaries is the new-hire pay scale pro sed by

United as opposed to the salaries United was offering its

incumbent pilots. ALPA is correct in noting that in most

instances the salaries yee by United for new hires

were less than those offered the replacement pilots. How-

ever, this is irrelevant for purposes of the present case.

The cases ALPA cites involve situations in which incum-

bent employees were offered less money than was ulti-

mately paid to permanent strike replacements. In the

present case, conversely, the replacement pilots were paid

less than the salaries offered incumbent captains and first

officers. ALPA is unable to cite any case in which a court

held that an employer violated its duty to bargain by of-

fering replacements salaries in excess of those proposed

for persons to be hired in the future as opposed to in-

cumbent employees. In such a case, we do not believe

an employer violates its bargaining duty and, according:

39a

ly, hold-that United acted lawfully in hiring its replace-

ment pilots at the guaranteed salaries.

Apart from violating United’s duty to bargain in good

faith, ALPA also contends that the hiring of replacement

pilots at guaranteed salary levels unlawfully discriminated

against the striking pilots. ALPA argues that the only

lawful inducement that could be offered replacement pilots

was an offer of permanent employment. Any other type

of inducement, such as the guaranteed salaries offered

here, would, according to ALPA, have destructive effects

on the union membership once the strike ended. We dis-

agree. Although we believe that United’s policy of super-

seniority (i.e., the rebid) was unlawful, the guaranteed

salaries involved here are of a different nature. ALPA

attempts to sidestep this difference by arguing that the

logic of the Supreme Court’s decision in Erie Resistor,

supra, regarding super-seniority applies equally as well

to the guaranteed salaries. However, even the Supreme

Court has noted the limited applicability of that case. See

Belknap, 463 U.S. at 505 n.8 (noting that Erie Resistor

“involved an offer of super-seniority to replacements” and

that “(the opinion was careful to distinguish cases not

involving that element”’).

Moreover, as the district court observed, the striking

pilots will not suffer the discriminatory harm as a result

of our upholding of the guaranteed salaries that they

would be subjected to by implementation of the rebid.

Under the new agreement, the striking pilots returned

to the same positions at the same salaries they had prior

to the strike. Our conclusion that the guaranteed salaries

are lawful will have no effect on this situation. On the

other hand, if the rebid program were implemented, each

striking pilot would potentially be subject to losing his

position to a less senior nonstriking pilot. In other words,

the guaranteed salaries to replacement pilots do not dis-

criminate against the striking pilots as would the rebid

super-seniority procedure. Indeed, unlike the rebid, the

guaranteed salaries will have the same effect on nonstrik-

ing United pilots as they do on striking pilots. Nonstrik-

40a

ing pilots who crossed the picket line, as opposed to re-

placements hired during the strike, will neither gain nor

lose as a result of the guaranteed salaries. ALPA’s argu-

ment that the guaranteed salaries discriminate solely

against striking pilots is, therefore, misplaced.

In addition, the district court found that the guaranteed

salaries, as opposed to the rebid, were necessary to keep

United running. If we were to hold that United was not

able to take the necessary steps to keep its operations

going through a strike, we would, in effect, eviscerate its

lawful right to self-help. Under the RLA, an employer

has the right to maintain its operation even if this means

hiring replacements for striking workers. In this case

United acted responsibly in hiring replacements at guar-

anteed salaries which the district court considered reason-

able under the circumstances. In light of United’s right

to self-help, we will not disturb that action.

Finally, we also reject ALPA’s argument that the

guaranteed salaries were superseded by the new collec-

tive bargaining agreement between the union and United.

Relying on Brotherhood of Railway & Steamship Clerks

v. Florida East Coast Railway, supra, ALPA argues that

the guaranteed salaries could only lawfully be in effect

during the temporary duration of the strike. In that case,

the Supreme Court ruled that an employer’s power dur-

ing a strike “to make new terms and conditions gov-

erning the new labor force is strictly confined.” 384 U.S.

at 247. As we noted before, however, the collective bar-

gaining agreement in Florida East Coast remained in ef-

fect during the strike. ALPA’s reliance on this decision

in a case in which the collective bargaining agreement had

already expired prior to the strike is therefore tenuous.

More directly on point is the Supreme Court’s decision

in Belknap, Inc. v. Hale, supra. In Belknap, the Court

held that permanent replacements are not preempted by

federal law from suing their employer to enforce the em-

ployer’s promise of employment. The Court noted that if

an employer decides to exercise its right to hire perma-

nent replacements, “it surely does not follow that the

4la

employer's otherwise valid promises of permanent employ-

ment are nullified by federal law... .” 463 U.S. at 500.

Similarly, in the present case we conclude that the district

court did not err in ruling that the RLA was not a bar

to United’s fulfillment of its promise to the replacement

pilots.

IV.

The final issue we reach regards the status of the Group

of 500. The district court ruled that the Group of 500

became United employees on May 17, the day the strike

began, and that thereafter United’s treatment of these

pilots violated section 2, Fourth of the RLA, 45 U.S.C.

§ 152, Fourth. Under section 2, Fourth, a carrier is pro-

hibited from, among other things, denying or question-

ing “‘the right of its employees to join, organize, or assist

in organizing the labor organization of their choice . . .

or to influence or coerce employees in an effort to induce

them to join or remain or not to join or remain members

of any labor organization.” (emphasis added). United ap-

peals arguing, inter alia, that the Group of 500 were

never employees and hence not afforded protection under

section 2, Fourth.

In reviewing the district court’s decision with respect

to the Group of 500, ALPA contends that we must apply

the ‘“‘clearly erroneous” standard specified in Fed. R. Civ.

P. 52 since the question of whether these pilots are

employees is a factual one. To support its position, ALPA

cites the recent Supreme Court decision in Icicle Seafoods,

Inc. v. Worthington, 106 S. Ct. 1527 (1986). In Icicle, the

Court considered the proper standard of review applicable

in examining a district court’s finding that the respondents

were “‘seamen”’ for purposes of the Fair Labor Standards

Act. On appeal from the lower court’s ruling, the Ninth

Circuit, applying a de novo standard of review, engaged

in its own factfinding and concluded that the respondents

were in fact not seamen. In reversing this decision, the

Supreme Court noted:

42a

If the Court of Appeals believed that the District

Court had failed to make findings of fact essential

to a proper resolution of the legal question, it should

have remanded to the District Court to make those

findings. If it was of the view that the findings of

the District Court were “clearly erroneous” within

the meaning of Rule 52(a), it could have set them

aside on that basis. If it believed that the District

Court’s factual findings were unassailable, but that

the proper rule of law was misapplied to those find-

ings, it could have reversed the District Court’s judg-

ment. But it should not simply have made factual

findings on its own.

106 S. Ct. at 1530.

ALPA argues that similar to Jcicle the district court’s

finding that the Group of 500 are United employees is

a finding of fact and hence is reviewable only under the

clearly erroneous standard. We find this contention with-

out merit. There is no dispute regarding the factual find-

ings made by the district court surrounding the Group

of 500; rather, the issue is whether, given these facts, the

court properly applied the RLA to conclude that the

Group of 500 were United employees as of May 17. In

other words, it is not simply a question of “applying a

legal standard to a descriptive or historical narrative,”

Mucha v. King, 792 F.2d 602, 605 (7th Cir. 1986), but

rather a question of whether the proper legal standard

was applied. Accordingly, we review de novo the district

court’s conclusions with respect to the employee status

of the Group of 500.

In concluding that the Group of 500 were employed by

United, the district court did recognize that the RLA

specifically defines the term “‘employee.”” Under the Act

an employee “includes every person in the service of a

carrier (subject to its continuing authority to supervise

and direct the manner of rendition of his service) who per-

forms any work defined as that of an employee or subor-

dinate official in the orders of the Interstate Commerce

43a

Commission .. . .” 45 U.S.C. § 151, Fifth. See 45 U.S.C.

§ 181 (providing that 45 U.S.C. § 151 extends to “every

air pilot or other person who performs any work as an

employee or subordinate official of such carrier or carriers,

subject to its or their continuing authority to supervise

and .tirect the manner of rendition of his service’’) (em-

phasis added). See also 45 U.S.C. § 182 (applying defini-

tion of 45 U.S.C. § 151, Fifth ts the airline industry “as

though such carriers and their employees were specifically

included within the definition of ‘carrier’ and ‘employee’,

respectively, in section 151 of this title’). Nonetheless,

the court found that the Group of 500 became employees

on May 17. To reach this result the trial judge, relying

on Pennsylvania Railroad v. Day, 360 U.S. 548 (1959),

and Air Line Pilots Association v. Alaska Airlines, Inc.,

735 F.2d 328 (9th Cir. 1984), stated that the definition of

“employee” under the RLA is not to be interpreted nar-

rowly.

Even construing the term “employee” broadly under the

RLA, however, the district court refused to find that the

Group of 500 were employees during their training period.

ALPA does not contest this conclusion. The trial judge

did nonetheless find that all members of the Group of 500

had accepted employment with United on May 17 and that

as such they became employees on that date even though

they refused to report to work. To support its position

that “[p)hysically reporting to work to establish an

employer-employee relationship is not a prerequisite to

the right to strike on the first day of employment,” 614

F. Supp. at 1042, the court relied on NLRB v. New

England Tank Industries, Inc., 302 F.2d 273 (1st Cir.),

cert. denied, 371 U.S. 875 (1962). In that case, the First

Circuit ruled that an employer’s refusal to hire former

employees of its predecessor because of the employees’

union activities violated the NLRA. Additionally, the court

found that three union members who were offered jobs

but refused to report because of the employer’s anti-union

actiuns were unfair labor practice strikers who were en-

titled to employment at the conclusion of the strike. The

44a

employer argued that these men, since they had never

worked for it, were not employees and hence had no right

to strike. The court disagreed noting that even though

the men had “‘never actually reported to work” they would

have “but for the company’s illicit policies and acts... .”

New England Tank, 302 F.2d at 277. In the instant ease,

the district court concluded, as had the court in New En-

gland Tank, id. at 278, that requiring persons who were

offered jobs to report to work before they could be consid-

ered employees would be a meaningless exercise.

After reviewing the statutory definition of employee

under the RLA, we are, however, forced to conclude that

the district court erred in ruling that the members of the

Group of 500 became United employees on May 17.17

These pilots never performed any work for United nor

did they ever submit to United’s supervision of them in

their work. By its own terms, the definition of employee

under the RLA would exclude our giving the Group of

500 employee status. See Consumer Product Safety Com-

mission v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)

(noting that “{aJbsent a clearly expressed legislative in-

tention to the contrary, [statutory] language must ordinari-

ly be regarded as conclusive”); Richards v. United States,

369 U.S. 1, 9 (1962) (in general a statute’s “legislative pur-

pose is expressed by the ordinary meaning of the words

used”’).

Furthermore, we disagree with the district court’s con-

clusion that both Day, supra, and Alaska Airlines, supra,

support a broad reading of the RLA’s definition of em-

ployee. In Day, the Supreme Court held that jurisdiction

of the National Railroad Adjustment Board uider the

RLA would extend to cover a pay dispute involving an

employee who had subsequently retired. The Court ruled

that the provisions of the RLA would still apply in a case

17 Because we conclude that the Group of 500 were not “em-

ployees” entitled to protection under section 2, Fourth of the RLA,

we have no need to reach United’s argument that section 2, Fourth

is limited solely to the regulation of union organization.

45a

where ‘‘the employee has retired from service after in-

itiating a claim for compensation for work performed while

on active duty,” 360 U.S. at 551, noting that “(there is

nothing in the Act which requires that the employment

relationship subsist throughout the entire process of ad-

ministrative settlement.” Jd. at 551-52. Similarly, in

Alaska Airlines, the Ninth Circuit held that a retired

pilot was entitled to file a grievance under the RLA re-

garding calculation of his retirement benefits. The court

held that the grievance, like the dispute in Day, arose

within the employer-employee relationship and could

therefore be adjudicated under the Act. 735 F.2d at

328-29.

The Supreme Court in Day and the Ninth Circuit in

Alaska Airlines considered disputes which arose out of

the employer-employee relationship. In both cases former

employees raised claims regarding either incidents that

occurred or benefits that accrued while they nad been

employed and subject to ihe protections of the RLA. It

unduly stretches the logic of these decisions to apply them

to the instant case. The members of the Group of 500 are

not seeking to resolve issues which arose during their

employment nor are they concerned about benefits which

accrued during that period. Rather, they are simply try-

ing to interpret the RLA broadly so that they will be

deemed employees even though they never began work-

ing for their alleged employer. Neither Day nor Alaska

Airlines support such a conclusion.

Indeed, in a similar case the National Mediation Board!8

ruled that persons in a position like the members of the

18 The NMB is the administrative body that determines which

persons are eligible to participate in representation elections under

the RLA. 45 U.S.C. § 152, Ninth. It is well-established that the

NMB’s interpretation of those provisions of the RLA over which

it has responsibility is entitled to deference. See Switchmen’s

Union v. National Mediation Board, 320 U.S. 297, 299-31, 303-04

(1943); Chicago Truck Drivers Union, Helpers & Warehouse Workers

v. National Mediation Board, 670 F.2d 665, 670 (7th Cir. 1981).

46a

Group of 500 would not be considered employees for pur-

poses of the RLA. In Jn re Union of Flight Attendants

(Air Micronesia), 10 N.M.B. 11 (1982), the NMB ruled that

a group of trainees were not employees under the RLA

and were therefore ineligible to vote in representation

elections. In rejecting the argument that these people

should be considered employees since they had completed

their training and had expectations of employment, the

NMB noted:

[T]he three subject individuals have never been on

the carrier’s payroll as working employees. At best,

they have the mere hope of an offer if an opening

arises at some time in the future... .

Clearly, a person who has been trained in the hope

of a future job offer, but who is free in the interim

to seek any other employment, and whose present

availability is unknown, is not a person subject to the

carrier’s “authority to supervise and direct the man-

ner of rendition’”’ of service.

Id. at 14 (quoting 45 U.S.C. § 181). Cf Walling v. Port-

land Terminal Co., 330 U.S. 148 (1947) (ruling that train-

ees are not employees under the Fair Labor Standards

Act’s definition which provides, pursuant to 29 U.S.C.

§ 203(eX1) (Supp. III 1985), that an employee is “any in-

dividual employed by an employer”); Donovan v. Amer-

ican Airlines, Inc., 686 F.2d 267, 272 (5th Cir. 1982)

(trainees for certain positions were not employees under

FLSA where they were never on the payroll, and never

displaced, substituted for, or supplemented regular airline

employees during their training).

A similar conclusion was reached by the court in Nelson

v. Piedmont Aviation, Inc., 750 F.2d 1234 (4th Cir. 1984),

cert. denied, 105 S. Ct. 2358 (1985). In that case, the court

ruled that an applicant for a job is not an employee under

the RLA and that therefore the plaintiff applicai:t had

no cause of action under the Act. Relying on the specific

language of the RLA defining the term employee, the

court stated:

47a

Here the statutory language does not admit of doubt.

At the time of his application to Piedmont, [the appli-

cant] was not “in the service of a carrier’’ and did

not “perform any work’’ for an airline as specified

by 45 U.S.C. § 151 Fifth. Therefore, [the applicant]

was plainly not subject to the protections of 45 U.S.C.

§ 152 Fourth, prohibiting an employer from interfer-

ing with an employee’s free choice of whether or not

to join a labor organization.

Id. at 1236. See International Longshoremen’s Associa-

tion, AFL-CIO v. North Carolina State Ports Authority,

370 F. Supp. 33, 40 (E.D.N.C. 1974) (noting that ‘‘the

employees must be in the service of a carrier and the

work performed by the employees must bear a direct rela-

tionship to the transportation activities of the . . . car-

rier”), affd, 511 F.2d 1007 (4th Cir. 1975) (per curiam).

We agree with the NMB and the Fourth Circuit that

trainees and applicants simply do not fall within the

RLA’s definition of employee. Accordingly, we hold that

the district court erred, as a matter of law, in concluding

that the Group of 500 were United employees as of May

17.

We recognize that although New England Tank, supra,

may at first glance seem to support the district court’s

conclusion, in the end we believe that the court’s reliance

on that case is misplaced. We do not believe that the hold-

ing under the NLRA in New England Tank which pro-

vided that a person may become an employee without re-

porting to work because of a strike is applicable to the

RLA. It would be in direct contravention of the RLA’s

definition of employee to conclude that a person may be-

come an employee even though he never performed any

work for the employer and was never under that em-

ployer’s direct supervision. We must begin with the plain

and ordinary meaning of the words in construing a statute

and regard that language as conclusive absent a clearly

expressed legislative intent to the contrary. American

Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982). ALPA

has provided no convincing evidence that Congress did

48a

not intend that the RLA’s definition of employee meant

what it said. We therefore conclude that unless a person

has performed services for the employer under that em-

ployer’s supervision he is not an employee for purposes

of the RLA.!9

Even conceding that the members of the Group of 500

were not employees under the RLA, ALPA argues that

we should uphold the district court’s alternative ruling

that United violated section 2, Fifth of the Act, 45 U.S.C.

A 152, Fifth. Section 2, Fifth provides in pertinent part

tnat

19 ALPA argues that because the Group of 500 accepted offers

of employment from United that, under common law, they were

not required to report to work to be considered employees for

purposes of the RLA. We disagree. The definition of employee

under the Act makes it clear that a person must perform work

for his employer under that employer’s supervision to be deemed

an employee. Members of the Group of 500 failed to perform any

services for United and were hence never employees of the airline.

See Walling v. Portland Terminal Co., 330 bs. 148. 150 (noting

that “in determining who are ‘employees’ under [the FLSA], com-

mon law employee categories or employer-employee classifications

under other statutes are not of controlling significance’’).

ALPA’s reliance on Nashville, C. & St. L. Ry. v. Railway Em-

ployees’ Dep't of Am. Fed’n of Labor, 93 F.2d 340 (6th Cir. 1937),

cert. denied, 303 U.S. 649 (1938), is inapposite. The issue in Nash-

ville was whether a person who had performed services for his

employer in the past but was now on temporary furlough should

be considered an employee under the RLA. The court held that

furloughed employees who retained their seniority rights entitling

them to preference in reinstatement were employees under the

Act. Indeed, the court noted that the furloughed employees were

all back at work by the time the case was tried below. Jd. at 343.

The difference between the situation in Nashville and the present

case is evident. Whereas the workers in Nashville had performed

services for their employer and were only on tempo furlough,

the members of the Group of 500 had never worked for United.

Our holding that the Group of 500 are not employees is, therefore,

consistent with the Sixth Circuit’s ruling in Nashville.

49a

[njo carrier, its officers, or agents shall require any

person seeking employment to sign any contract or

agreement promising to join or not to join a labor

organization... .

The district court held that

(bly making employment contingent on crossing the

picket line, United has violated Section 2, Fifth by

requiring ‘“‘persons’’ not to join the union or its ac-

tivities. United was clearly aware that requiring the

student pilots to cross a lawful picket line would dis-

qualify them from future union membership.

614 F. Supp. at 1043-44. In so ruling, the court relied on

cases interpreting section 8(aX3) of the NLRA which

makes it an unfair labor practice for an employer “by

discrimination in regard to hire or tenure of employment

or any term or condition of employment to encourage or

discourage membership in any labor organization.” 29

U.S.C. § 158(aX3).

We agree with the district court that section 2, Fifth

of the RLA is applicable to members of the Group of 500.

As opposed to other provisions of the Act which extend

solely to “employees,” section 2, Fifth applies to ‘“per-

sons.”’ Accordingly, drawing on the ordinary meaning of

the statute, we can conclude that the term persons en-

compasses more than the term employees so that appli-

cants for employment and the like are afforded protec-

tion against employer coercion regarding the signing of

agreements to join or not join a labor organization. We

also recognize that, as the district court asserted, section

8(aX3) of the NLRB provides protection to employees or

prospective employees from a broad range of anti-union

discrimination. In Phelps Dodge Corp. v. NLRB, 313 U.S.

177 (1941), for example, the Supreme Court rejected the

proposition distinguishing between discrimination in hir-

ing and terminating employment under the NLRA. In so

doing the Court noted:

hiciiecaeienlea an tieaeeemeienendill

50a

Discrimination against union labor in the hiring of

men is a dam to self-organization at the source of

supply. The effect of such discrimination is not con-

fined to the actual denial of employment; it inevitably

operates against the whole idea of the legitimacy of

organization.

Id. at 185.

We must part company with the district court, however,

regarding its conclusion that the RLA embodies the same

policies as does the NLRA with respect to employer coer-

cion and that therefore section 2, Fifth must be read

broadly to bar an employer from conditioning employment

on a person’s reporting to the first day of work during

a union strike. We recognize that a court has a certain

degree of latitude in interpreting statutes to ensure that

the congressional purpose is effected. This latitude does

not, however, empower a court to override the plain

meaning of a statutory provision in order to effect, by

judicial fiat, the purpose it chooses to give the legisla-

tion. In the present case, section 2, Fifth provides only

that an employer not require a person to sign a contract

or agreement either promising to or not to join a union.

This statutory language is a far cry from section 8(aX3)

of the NLRA which prohibits, among other things, anti-

union discrimination with respect to hiring decisions or

conditions of employment. Whereas section 8(aX3) provides

a union protection from a broad range of discriminatory

attacks, section 2, Fifth specifically defines those acts

which are unlawful.

ALPA fails to cite any case or legislative history which

would support giving section 2, Fifth the broad reading

it advocates. ALPA does rely on section 2, Fourth of the

RLA to argue that Congress intended to give broad pro-

tections from employer coercion. What ALPA convenient-

ly ignores, however, is the fact that section 2, Fourth is

applicable solely to ‘‘employees’”’ and not merely to any

“person”’ as is section 2, Fifth. The language of section

2, Fifth is clear and we refuse to give it a gloss, in the

Sla

absence of a clearly expressed intent of Congress, that

the language cannot reasonably support. If Congress had

wanted section 2, Fifth to apply as broadly as section

&(aX3) it would never have drafted the statutory language

of the former provision so narrowly. There is no evidence

in the instant case showing that United required members

of the Group of 500 to sign agreements not to join ALPA

as a condition of their employment. Accordingly, we hold

‘hat the district court erred in ruling that United violated

section 2, Fifth. See Nelson v. Piedmont Aviation, Inc.,

750 F.2d at 1236 (ruling that section 2, Fifth was inap-

plicable since the “appellant [made] no claim that [the

employer] attempted to extract any promises from him

in violation of this provision’’).

ALPA contends that this view of section 2, Fifth under-

cuts Congress’s purpose in enacting the provision. We

agree with the union that section 2, Fifth, along with sec-

tion 2, Third and Fourth, serve to advance the mainte-

nance of effective labor organizations. See International

Association of Machinists v. Street, 367 U.S. 740, 759

(1961). However, we cannot accept ALPA’s argument

that, in essence, section 2, Fifth incorporates the protec-

tions afforded by section 2, Third and Fourth. We do not

believe that limiting section 2, Fifth to its express lan-

guage undercuts the congressional intent of providing pro-

tection to persons from employer coercion. By its own

terms, section 2, Fifth shields persons from being coerced

into joining or not joining a union prior to employment.

Once these persons become employees they will receive

all of the protections necessary to ensure that their union

will remain a viable representative of their interests.

Under these circumstances, we see no need to expand sec-

tion 2, Fifth to the dimensions ALPA advocates.2°

20 We also reject ALPA’s argument that United’s requirement

that the Group of 500 cross the picket line to become employees

was in essence an agreement not to join a union. We recognize

that under ALPA’s constitution it is unlikely that the pilots who

(Footnote continued on following page)

52a

Finally, in the alternative, the district court held that

United violated section 2, Seventh of the RLA by uni-

laterally altering the status quo in its institution of the

‘“ ‘nonemployee’ training program for the Group of 500.”

614 F. Supp. at 1043. The court, relying on Detroit &

Toledo Shore Line Railroad, supra, ruled that although

there was nothing in the collective bargaining agreement

between United and ALPA governing training of future

pilots, such issues are nonetheless assumed to be part of

the agreement and subject to the status quo provisions

of the RLA.

Section 2, Seventh provides that

(njo carrier, its officers, or agents shall change the

rates of pay, rules, or working conditions of its em-

ployees, as a class, as embodied in agreements ex-

cept in the manner prescribed in such agreements or

in section 156 of this title.

45 U.S.C. § 152, Seventh (emphasis added). This provi-

sion is not the only section of the RLA which requires

that the status quo be maintained, however. In Detroit

& Toledo Shore Line Railroad, the Supreme Court re-

viewed the status quo that is mandated by sections 5, 6,

and 10 of the RLA, 45 U.S.C. §§ 155, 156, 160. These

sections, among other things, outline the procedures that

must be followed when either party to an agreement

seeks a contract modification. In Detroit & Toledo Shore

Line Railroad, the Court rejected an argument by the

employer that the status quo provisions of sections 5, 6,

and 10 of the RLA apply solely to terms that are specif-

20 continued

crossed the picket line will ever become union members. None-

theless, United should not be held responsible for violating the

RLA simply because ALPA seeks to discipline its members. In-

deed, were United found to have violated section 2, Fifth each

time it induced someone to cross the picket line, it would have

been unable to exercise its right to replace striking employees.

Since the right to hire permanent replacements is a recognized

self-help measure, ALPA’s argument undercutting that right must

be rejected.

——

$34

ically enumerated in the collective bargaining agreement.

In so doing, the Court noted:

We have stressed that the status quo extends to

those actual, objective working conditions out of

which the dispute arose, and clearly these conditions

need not be covered in an existing agreement.

396 U.S. at 153.

In the instant case it is unchallenged that the relevant

collective bargaining agreement made no mention of United’s

pilot training practices and procedures. ALPA argues that

Detroit & Toledo requires that established procedures be

deemed to be part of the collective bargaining agreement.

For its part, United contends that ALPA’s reliance on

Detroit & Toledo is simply irrelevant in interpreting sec-

tion 2, Seventh. United notes that the Court in Detroit

& Toledo relied on sections 5, 6, and 10 of the RLA and

specifically stated that section 2, Seventh was not part

of its analysis. See 396 U.S. at 155-56.

At first glance, United’s argument appears to have some

merit. Section 2, Seventh requires that the status quo be

maintained only with respect to those terms ‘“embodied”’

in the agreement whereas the status quo provisions of

sections 5, 6, and 10 are not specifically limited to the

express terms of the agreement. See 45 U.S.C. § 155,

First (b) (requiring that for thirty days after one party

refuses arbitration, unless arbitration is subsequently

agreed to or an emergency board is created, ‘“‘no change

shall be made in the rates of pay, rules, or working con-

ditions or established practices in effect prior to the time

the dispute arose”); 45 U.S.C. § 156 (requiring that par-

ties give notice of desired change in agreement and “{iJn

every case where such notice of intended change has been

given, or conferences are being held with reference there-

to, or the services of the Mediation Board have been re-

quested by either party, or said Board has proffered its

services, rates of pay, rules, or working conditions shall

not be altered by the carrier until the controversy has

been finally acted upon, as required by section 155 of this

title, by the Mediation Board, unless a period of ten days

has elapsed after termination of conferences without re-

quest for or proffer of the services of the Mediation

Board’’); 45 U.S.C. § 160 (providing that after the crea-

tion of an emergency board ‘“‘and for thirty days after

such board has made its report to the President, no

change, except by agreement, shall be made by the par-

ties to the controversy in the conditions out of which the

dispute arose’’).

Although United’s argument that section 2, Seventh

deals solely with terms and conditions expressly stated

in the agreement is plausible, we need not reach that

issue. By its own terms, section 2, Seventh serves to pro-

tect the status quo of ‘“‘rates of pay, rules, or working

conditions of .. . employees ....” 45 U.S.C. § 152,

Seventh (emphasis added). As we noted above, however,

the members of the Group of 500 were never employees.

Moreover, the change in training practices did not impact

upon then current United employees. In short, the district

court’s reliance on section 2, Seventh is inapposite.

ALPA apparently concedes the inapplicability of section

2, Seventh since in its brief it relies solely on the status

quo provisions of section 6. United’s argument that we

are limited to protecting the status quo with respect to

express contractual terms then becomes irrelevant because

under section 6 United’s established training practices are

arguably part and parcel of the collective bargaining

agreement pursuant to Detroit & Toledo Shore Line Rail-

road, supra. Section 6 requires maintenance of the status

quo with respect to rates of pay, rules, and working con-

ditions. As the Court in Detroit & Toledo nected, section

6 extends only to “‘those actual, objective working condi-

tions and practices, broadly conceived, which were in ef-

fect prior to the time the pending dispute arose and which

are involved in and related to that dispute.” 396 U.S. at

153 (footnote omitted). It goes without saying that ‘‘work-

ing conditions” serve to affect only employees included

within the bargaining unit. United argues, therefore, that

in the present case section 6 extends solely to its statu-

55a

tory employees and not to the Group of 500. Comnare

45 U.S.C. § 152, First (placing duty to reach and main-

tain agreements on employer and employee only) with

Detroit & Toledo, 396 U.S. at 151-52 (acknowledging that

the status quo provisions of the RLA must be read in

conjunction with the implicit status quo requirement under

section 2, First). We agree. The members of the Group

of 500 are, accordingly, ineligible for relief under this pro-

vision.

Our analysis cannot end here, however, because United’s

treatment of the Group of 500, if it affected the pay rates,

rules, or working conditions of pilots already in United’s

employ, could nonetheless be potentially violative of sec-

tion 6. In International Brotherhood of Teamsters v.

World Airways, Inc., 111 L.R.R.M. (BNA) 2170 (N.D. Cal.

Aug. 20, 1982), for example, the court refused to grant

injunctive relief on grounds that section 6 was not violated

by the airline’s institution of a training program to pre-

pare additional crews for use in a potential work stop-

page. The court rejected the union’s section 6 argument

stating that such a “program is not a status quo viola-

tion so long as it is separated from the continuing opera-

tions of the Company.” Jd. at 2172. The union’s request

for injunctive relief was denied since it “failed to sustain

its burden of showing any substantial current effect on

operations.” Id. See Illinois Central Railroad v. Brother-

hood of Locomotive Engineers, 422 F.2d 5938, 595-96 (7th

Cir. 1970) (training program was violation of status quo

where it interfered with current operations). We agree

with the district court in World Airways that unless some

effect of a change is shown on the rate of pay, rules, or

working conditions involving employees no section 6 viola-

tion has occurred. In the instant case, ALPA has failed

to make such a showing and, accordingly, we hold that

the district court erred in ruling that United had violated

the status quo mandated by section 6.

Our conclusion is not undermined by ALPA’s argument

that if United was not required to bargain regarding the

Group of 500, the union should not have been required

was

ON

=)

to bargain regarding the new-hire pay scales which would

only affect future employees. A union is required to bar-

gain over the terms and conditions of employment that

will be in place when future employees take their posi-

tions. This is not at all analogous to a duty to bargain

with respect to terms and conditions imposed upon train-

ees who are not employees and who may never become

employees.?! ALPA’s argument to the contrary is simply

misplaced.

V.

For the reasons stated above, we affirm the decision

of the district court with respect to the rebid procedure

and the hiring of replacement pilots at guaranteed salary

levels. We reverse the district court’s holding with respect

to the Group of 500.

AFFIRMED IN PART AND

REVERSED IN PART.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

21 Contrary to ALPA’s contention, our holding does not limit the

union’s ability to bargain with respect to the wages and condi-

tions of employment that future employees will face. We only hold

that United did not violate section 6 when it made changes in the

terms and conditions of training as they apply to non-employees.

57a

APPENDIX B

UNITED STATES DISTRICT COURT

N.D. ILLinois, E.D.

No. 85 C 4765

Aug. 1, 1985.

a

4

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

Plaintiff,

Vv.

UNITED AIR LINES, INC.,

Defendant.

&

vv

MEMORANDUM ORDER

BUA, District Judge.

The above-captioned matter came before the Court for

trial on the merits of plaintiff's complaint. The Court, hav-

ing heard testimony June 17 through June 28, 1985, and

having reviewed deposition designations, exhibits and

memoranda submitted by the parties, does hereby enter the

following findings of fact and conclusions of law pursuant

to Rule 52(a) of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT

1. This action was filed on May 16, 1985 by plaintiff

Air Line Pilots Association, International (“ALPA’’)

against defendant United Air Lines, Inc. (“United”). The

complaint alleged that United had violated or was about

58a

to violate several provisions of the Railway Labor Act, 45

U.S.C. $$ 151, et seq. (“the RLA”). These aliegations

related to alleged acts of United during the time that ALPA

and United were in the process of collective bargaining

negotiations for a new agreement to replace the parties’

agreement negotiated in 1981 (“the 1981 Agreement”).

The allegations also related to plans which United had

announced it intended to carry out if there were a strike

by the pilots. On May 17, 1985, at 12:01 a.m. (E.D.T.),

United’s pilots commenced a strike against United.

2. On May 17, ALPA filed motions for preliminary

injunction and for expedited discovery. The Court granted

ALPA’s discovery motion, also requiring that ALPA submit

to expedited discovery by United. The Court scheduled

a hearing on ALPA’s motion for preliminary injunction

for June 10. 1985. Subsequently, the hearing was re-

scheduled to June 17, 1985.

3. On May 28, 1985, United filed a motion to strike

ALPA’s claim for injunctive relief. United asserted that

ALPA was not entitled to injunctive relief under section 8

of the Norris-LaGuardia Act, 29 U.S.C. § 108, because

ALPA had failed to accept the proffer of arbitration by

the National Mediation Board (“NMB”) on April 16,

1985, after United had rejected the proffer. On June 7,

1985, the Court denied United’s motion. See Memorandum

Order, June 7. 1985, 610 F.Supp. 243.

4. On June 14, 1985, the United Air Lines Master

Executive Council (“UAL-MEC”) for the United pilots

ratified a tentative agreement that had been reached be-

tween the negotiating committees for United and ALPA,

thus ending the strike. The back-to-work agreement, which

was ratified together with the basic economic agreement,

provided in part:

ay Senate tl > alemeeneme al ~—~— ~~~

59a

The Association and the Company agree that

neither will engage in or condone any activities

which might constitute reprisals or recriminations

as a result of the ALPA strike. The Company will

withdraw all Letters of Charge and all disciplinary

actions taken against pilots for strike-related activi-

ties and will not take any further action against

ALPA or pilots for strike-related activities. ALPA

agrees not to level fines or take other disciplinary

action against nonstriking pilots. ALPA’s claims

regarding the “500” pilots, system rebid and salaries

for pilots hired as “fleet qualified” will continue to

be pursued by ALPA in Federal Court. The parties

agree to a plenary trial commencing June 13, 1985.

Should there be any appeals both parties will agree

to an expedited appeal. The parties will drop all

other strike related litigation or arbitration.

P1.Ex. 43 at 4 14 (emphasis added).

A. The Parties

5. ALPA is an unincorporated labor organization and

is the duly certified exclusive collective bargaining represen-

tative under the RLA, for the air line pilots employed by

United. Stipulation of Uncontested Facts (“Stipulation”)

at € 1. Henry A. Duffy is the President of ALPA.

6. Representation of United pilots is controlled by the

UAL-MEC which consists of three elected members from

each of the nine pilot domiciles. Tr. 1253. Roger Hall

is the Chief Executive Officer of UAL-MEC. UAL-MEC’s

chief negotiator is William C. Brashear, and the Chairman

of ALPA’s United Pilots Strike Committee is Frederick

C. Dubinsky.

."@ we ee

60a

7. United is a corporation duly organized and existing

under the laws of the State of Delaware, having an office

and place of business in the Township of Elk Grove, Cook

County, Illinois. United is an air carrier as defined in the

Federal Aviation Act of 1958, as amended (49 U.S.C.

$§ 1301-1542), holding certificates of public convenience

and necessity issued pursuant to that Act, under which

certificates it operates an airline system for the Carriage

by air of passengers, property and mail in domestic, over-

seas and foreign commerce. As such, United is a “carrier”

as defined by 45 U.S.C. § 181, and is subject to the provi-

sions thereof. Stipulation at © 2.

8. United’s Chairman and Chief Executive Officer is

Richard J. Ferris and its President is James J. Hartigan.

United’s chief negotiator is David Pringle, and James

Guyette is Chairman of United’s Operations Adjustment

Task Force. Lloyd W. Barry is Senior Vice President of

Flight Operations.

9. United’s airline system is the largest domestic carrier

in the United States. United serves more than 150 cities

in the United States, including Chicago, and approximately

10 cities in 5 foreign countries and territories, and has

operating routes extending over approximately 500,000

route miles. United has a fleet of over 300 aircraft owned

and leased. Stipulation at @s 3-4.

10. In its air transport operation, United employs over

48,000 persons. Among these are some 9,000 persons em-

ployed in the craft or class of flight attendants represented

for the purpose of collective bargaining under the RLA

by the Association of Flight Attendants (“AFA”) and

approximately 15,000 persons employed in various crafts

and classes represented by District 141, International As-

sociation of Machinists and Aerospace Workers (“IAM”).

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United, AFA and IAM are currently parties to existing

collective bargaining agreements. Stipulation at ¢ 4.

B. Events Preceding the Strike

11. For many years ALPA and United have been parties

to successive collective bargaining agreements. The agree-

ment in effect prior to the strike had been in effect since

October 1981 and contained the following duration clause:

This Agreement shall continue in full force and

effect until October 1, 1983 and shall renew itself

without change each succeeding October 1 there-

after, unless written notice of intended change is

served in accordance with Section 6, Title I, of the

Railway Labor Act, as amended, by either party

at least sixty (60) days prior to October 1, 1983

or any year thereafter upon written notice of either

party thereto.

P1.Ex. 1, Section 22 at 4 C. The parties later extended the

October 1, 1983 date to April 1, 1984 by agreement.

12. On January 30, 1984, United served an opening

letter under Section 6 of the RLA upon ALPA. Tr. 948;

Def.Ex. 146. In turn, ALPA served its own Section 6

Notice upon United stating its various proposals for modi-

fications to the 1981 Agreement. Tr. 955; Def.Ex. 145.

Issues signaled for negotiation included, inter alia, com-

pensation for incumbents, new-hire rates and the method

for assigning cockpit seats to pilots. Def.Exs. 145 and 146.

These proposals are known as “Section 6 Openers” in that

they commenced the process for amendment of the 1981

Agreement provided in Section 6 of the RLA, 45 U.S.C.

§ 156.

13. Prior to the Airline Deregulation Act, P.L. 95-504,

9? Stat. 1705, the commercial airline industry was regulated

as to its route structure, rates it could charge passengers,

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and the like. During the regulated era, United (and other

trunk carriers) had little economic incentive to seek to

contain pilot labor costs.

14. As negotiations progressed during 1984, it became

clear to the parties that the most difficult issue before them

was United’s request that ALPA agree to a new, reduced

pay scale to apply to pilots hired during the term of the

potential new agreement. This pay scale issue has been

referred to as the “new-hire pay scale.” United’s objective

in its negotiations with ALPA was to secure what was, in

United’s judgment, a “cost competitive” agreement with

ALPA. Tr. 442-43. United was concerned that its com-

petitors, especially American Air Lines, benefitted [sic] from

lower pilot costs. Tr. 946; 1012. Although United made

an operating profit of more than $500 million in 1984 (Tr.

508), it had incurred operating losse- for the previous five

years. Tr. 1015; Def. Ex. 146.

15. In August 1984, mediators from the NMB entered

the collective bargaining negotiations. Tr. 962.

1. Task Force Created

16. In the fall of 1984, United began to pian for the

possibility of a strike by the pilots. United created a task

force to develop a plan to operate in the event of a pilots’

strike. The flight operations aspect of the planning was

committed to the direction of Captain Lloyd Barry, who had

become Senior Vice President of Flight Operations in March

1984. Tr. 234, 299, 380. Barry was assisted by Rakesh

Gangwald, a systems analyst who was brought in to aid

Barry in developing administrative business processes for

flight operations. Tr. 376.

17. United's flight operations strike plan was called the

“operations adjustment plan.” Pl. Ex. 22; Tr. 301. United

was aware that its operations adjustment plan might not

63a

create enough pressure to force ALPA to settle on United’s

terms prior to May 17. United believed that, if a strike took

place, the plan would break the strike, and thereby force

ALPA to settle on terms preferred by United. Tr. 302-4.

The breaking of the strike and forcing of a settlkement was

the objective of United’s flight operations adjustment plan.

Id.; Tr. 343. The elements of this plan were regarded by

United as so “stern or unusual” (Tr. 534) that, if a strike

occurred, there would be a “stampede” of pilots to the

United side. Tr. 464. United believed that it could break

the strike in two to four days. Tr. 302-3; Pl. Ex. 22. Ferris

believed that United would secure its objective:

You know what’s going to happen, if we have this

withdrawal of service, what’s going to happen is

eventually the membership is going to be fed up

enough—it’s the old story, throw the rascals out,

put a new one in; we negotiate to come back on the

property.

Tr. 470, Videotape of O’Hare Domicile Meeting, May 2,

1985.

2. The “Group of 500”

18. Also in the fall of 1984, United began to experience

a shortage of pilots for its desired flight schedule. Tr. 41,

1011.

19. Prior to the fall of 1984, United last hired new pilots

during the period between 1977-79. Stipulation at { 33:

Tr. 102. Approximately 800 pilots were hired in that time.

Tr. 34. Those individuals were brought into United in order

to serve in the entry-level position of second officers. Stipu-

lation at 4 33; Tr. 34, 38, 41.

20. Prior to the fall of 1984, United’s practice was to

employ student pilots from the first day of training.

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Stipulation at § 33; Tr. 40, 337-38. Training of student

pilots was conducted in accordance with rules in the 1981

Agreement, whether or not the student pilots were being

trained with incumbent pilots. Tr. 104, 143. Student

pilots were paid at rates established in the 1981 Agreement.

Tr. 339. Pursuant to the 1981 Agreement, the student

pilots accrued pilot seniority from their first date of hire

as student pilots. PI.Ex. 1, Sec. 6(A)(1), p. 35.

21. During United’s hiring of student pilots in the period

1977 to 1979, when Initial Operating Experience (“IOE”’)

was a domicile activity, student flight officers were: (1) pro-

vided tentative pilot seniority numbers on their first or

second day of training at Denver, conditioned upon the

successful completion of training and receipt of an assign-

ment to the line for second officer duty; (2) assigned to

the line for second officer duty upon completion of the

Denver training program; (3) provided final seniority num-

bers at the time of their completion of training and assign-

ment to the line for second officer duty; and (4) had their

IOE at their assigned domicile subsequent to the above

stated events. Tr. 731. In 1978-79, individuals hired for

student pilot positions became line pilots with final seniority

numbers on the United pilot system seniority list upon the

completion of training and prior to beginning IOE. Tr.

630-631, 646, 731; Pl.Ex. 47. Less than 1% of pilots who

completed their training in 1977-79 failed to complete their

IOE. Court Ex. 1 at 445.

22. During the fall of 1984, while United was negotiat-

ing with ALPA as to the new-hire pay scale, United did

not want the new hires “on the property” while the negotia-

tions were in progress because, in its view that would make

it more difficult for ALPA to agree to a reduced new-hire

scale. Tr. 340-41. In addition, United did not wish to pay

new hires at the incumbent rates provided in the 1981

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Agreement. Tr. 42, 339. Accordingly, United decided that

it would “pretrain” several hundred “applicants,” who would

be offered “formal employment” once United had secured

a cost competitive agreement with ALPA. Tr. 45, 112,

231, 340, 484, 1122-23. During this time, United was

unable to expand and lost market share. Tr. 484-85.

23. Beginning in November of 1984, United interviewed

and selected approximately 600 candidates for its training

program. Tr. 45 (“the Group of 500” or “student pilots”).

Approximately 8 app!:cants were screened for each of the

student pilots selected. Tr. 113. A “considerable amount

of money” was spent to conduct the selection, which in-

cluded interviews, psychological testing, and evaluation at

the controls of United’s aircraft cockpit simulators in

Denver. Tr. 43-44.

24. As the student pilots were selected for United train-

ing, they were required to execute a form described as a

“Flight Officer Training Agreement.” E.g. Def.Ex. 140.

In the forms, the student pilot agreed that he or she would

receive United flight officer training “without charge for

tuition” and would receive “$30 per day for expenses for

the duration of my training period.” The student pilot

further was required to agree that “[d]uring this training,

I understand that I will not be an employee of United Air-

lines and will receive no compensation from United other

than expense money.” The agreement further provided:

I undestand that graduates of Flight Officer Train-

ing will constitute a pool of trained candidates for

Flight Officer employment, which United Airlines

may employ, if needed, within twelve months of

graduation. I understand that in order to be offered

such employment, that I must continue to meet the

requirements and qualifications for the flight officer

position.

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It was also agreed that United could terminate the training

or employment without notice or liability. Def.Ex. 140.

The student pilots were expected to provide their own

lodging and meals out of their expense money. Pl. Ex. 5

at p. 4. United informed the Group of 500 that they would

be offered employment by class date (the date their initial

training commenced). Tr. 155, 199.

25. The training consisted of initial training and four

to five days of refresher training. Court Ex. 1 at § 44. As

they were selected, the student pilots entered a three-week

second officer training program at United’s Denver Training

Center. They were trained on a scheduled determined by

United which resulted in a more condensed training period

than was customary at United in the past. Tr. 136. During

their initial training, the student pilots were measured for

their uniforms, which were later ordered for them approxi-

mately a month before May 17, 1985. Tr. 109. United

generated a list of tentative seniority numbers for the student

pilots, ranked in order of their class dates, and, within the

classes, their Social Security numbers. Court Ex. 1 at

€ 43.2; Pl.Ex. 90. It was United’s intent that the student

pilots “accepting employment when offered will receive a

short refresher course and IOE [initial operating expe-

rience].” PI.Ex. 5 at p. 3. Training, however, would be

complete upon conclusion of the refresher course, prior to

IOE. Court Ex. | at €44. This break in training, resulting

in use of a short refresher course, and the fact that the train-

ing course took less time than in the past, were additional

differences from United’s previous training program for new

hires. Tr. 135, 137.

26. Only 2% of the total numbers of student pilots

failed to complete initial training. Tr. 120. Upon comple-

tion of their initial training. the Group of 500 was provi-

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sionally qualified to serve as United second officers, lacking

only their IOE to become fully qualified to engage in line

flying. Pl.Ex. 42; Tr. 159.

27. On about April 20, 1985, United offered second

officer employment to approximately 375 members of the

Group of 500 who had successfully completed initial train-

ing. Tr. 48, 49; Pl.Ex. 8. The offers were effective May 17,

1985, whether or not there was a strike, at $1,800 per

month for 81 hours, and stated that the four-day refresher

course would start as early as May 3, 1985. Stipulation

at € 38; Tr. 48, 49; PI.Ex. 8. In order to accept United’s

offer, the recipient was required to respond by telephone

no later than April 24, 1985. PI.Ex. 8. Approximately

325 of the recipients accepted and were scheduled for their

refresher courses to commence at various dates commencing

May 3, 1985. Tr. 50, 149; Pl.Ex. 9 (as modified by Def.Ex.

79A). The student pilots then received a mailing from

United’s Director of Flight Standards and Training, William

Traub, stating that “I am sure you are looking forward to

beginning your career as a United Airlines Second Officer

as much as we are.” PI.Ex. 6. Traub enclosed with the

letter a package of home study material to be completed

prior to refresher training and several written tests. The

letter advised the recipient that his change to “permanent

status will occur on May 17, 1985 or on the day you enter

training whichever is later.” /d. at p. 2.

28. In addition to the Traub letter, the student pilots

who accepted United’s April 20 offer were sent a further

confirming letter by the Manager of Flight Employment,

Raymond Boyle, E.g., PI.Ex. 12; Tr. 51-52. The letter

confirmed that employment would be effective May 17,

1985, specified a date for resumption of training prior to

May 17, and requested that the recipient report on the date

training would resume. PI.Ex. 12; Tr. 50-52. The recipient

68a

was also requested to complete a package of employment

forms which were enclosed with the letter. Pl.Ex. 12:

38. oe.

29. Most of the Group of 500 were given employment

dates of May 17, 1985. Tr. 47. Some of the Group of 500

who were offered jobs in United’s mailgrams (PI.Ex. 8)

were initially scheduled for refresher training to begin after

May 17, 1985. Believing that the later starting dates might

create seniority conflicts, United sent another mailgram on

May 4 to the small group of student pilots whose refresher

and training had been scheduled after May 17. Def.Ex. 76.

This mailgram, unlike PI.Ex. 8, specifically required that

“[t]o accept our offer, you must be able to report to work

in Denver on May 17.” Def.Ex. 76.

30. As the strike deadline of May 17 approached,

United addressed a letter to the Group of 500 specifically

requesting that they report “at 0800 hours” to the Denver

Flight Training Center on May 17. Def.Ex. 77. The letter,

however, was mailed after prior offers had been accepted.

P].Ex. 6, 12, 9. The letter was to “make it absolutely clear

everybody got the same message and would be reporting at

the same place.” Tr. 92.

31. When United first offered employment to the Group

of 500, it did not hire them to serve as “crossovers” in a

pilot strike. Tr. 50. For example, Brent Barrett, one of the

Group of 500, was told by United, when offered employ-

ment on April 20, that “it is up to you” whether he honored

a picket line in the event of a strike. Tr. 204. Barrett was

previously told that United did not want to put the new-

hire pool on the line until it “had a contract” with ALPA.

Tr. 231. Daniel Petrovich, another member of the Group,

had been told by United that he would not be asked to “cross

the picket line.” Tr. 158.

69a

32. As the May 17 strike deadline approached, however,

United began to view the Group of 500 as a pool of trained

replacements for striking pilots. Thus, United told the

Group that if they did not work on May 17, they would

not work for United in the future. Tr. 342, 170. United

Officials also told members of the Group that Ferris had

already decided that they would “never work for United

Air Lines if we didn’t show up on the 17th” of May. Tr.

210. They were told that “if they don’t cross the picket line

and go to work on the 17th, you will never work for United

Air Lines.” Tr. 171. Some of the Group of 500 were told

that if they did “take the job,” complete their training and

then join the strike, they “would not make it through their

probation year” as pilots. Tr. 168-69. Prior to the strike,

Ferris personally told United’s TCAs in Denver,

We have got 500 pre-hires, right? Those pre-hires

are all going, they’ve been given notice, and come

0001 May 17, they’re employed, boom. If they

don’t show up to work, they will never, ever, work

for this air line, ever, because they’re not on the

property, they won’t have a number, they don’t have

anything.

Tt. 72%.

33. As of May 17, 1985, under this training program,

approximately 600 individuals were selected for training

by United. Tr. 35, 135-36, 365. United issued seniority

numbers, however, only to those of the Group of 500 who

reported to work on May 17, 1985 and who were put on the

company payroll at that time. Such seniority numbers did

not become final until the student pilot received an assign-

ment to a line position. Court Ex. 1, at 4 43(2).

34. Also as of May 17, 1985, approximately 150 of the

Group of 500 had completed their refresher training and

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10 to 12 had completed their IOE. Jd. at 4 44. United did

not assign any member of the Group of 500 to the line,

or provide them with final seniority numbers prior to May

17, 1985, whether or not they completed their initial train-

ing, whether or not they completed their refresher training,

or whether or not they completed their IOE. /d. at € 43(3).

35. On May 17, with the strike in progress, few of the

Group of 500 crossed the ALPA picket lines. The striking

Group members testified that they physically approached

the training facility on the morning of May 17, encountered

the ALPA picket line, declined to cross, and signed a report

form provided by ALPA which was subsequently supplied

to United. PI.Ex. 38; Tr. 175-76, 214, 1473.

36. At 0001 EDT May 17, 1985, some of the Group

of 500 were undergoing United training in the Avia training

facility in Long Beach, California. When these pilots

learned from management that the strike had occurred and

a picket line had been established, they departed the train-

ing facility. Tr. 174. Daniel Petrovich was told at that time

by his Training Check Airman, John Jacobs, that United

President James Hartigan had just told him that the strike

was in progress and that if the trainees left the Avia facility

“they would all be terminated.” Tr. 173.

37. Paula Wenz, another member of the Group of 500

who refused to cross the picket line, testified that TCA

Brown told her and others on May 6 that

if on May 17th we didn’t cross the picket line, that

we would never work for United Air Lines again,

and he said if by some reason we were included into

a back-to-work agreement or whatever, he would

personally see to it that we would never make it

through our probationary year.

T7la

Tr. 1472. Wenz had never previously been told that she

would have to cross a picket line in order to become a

United pilot. Id.

38. Under the ALPA Constitution and By-Laws, a mem-

ber may be expelled for “[p]erforming work for or assisting

an airline during a period when the members of this Associa-

tion are on strike against such airline.” Def.Ex. 170, Art.

VIII, Sec. 1(A)(5). Applicants who have been “involved

in alleged strikebreaking shall not be accepted for member-

ship” except in accordance with rigorous procedures. /d.,

Art. II, Sec. 10(B). Barry, as a former ALPA representa-

tive (Tr. 235), knew or should have known that requiring

the Group of 500 to serve as crossovers could materially

jeopardize their opportunity to become members of ALPA

at United or elsewhere.

39. United’s policy continues to be that the Group of

500 who did not report to work on May 17, 1985 will not

become employees of United. Tr. 451, 1165-66.

3. The Parties’ Prestrike Communications to

Pilots and Student Pilots

40. By April 16, 1985, United’s planning for the flight

operations aspect of a strike had been thoroughly developed,

and United decided to engage in an extensive program to

communicate certain aspects of the plan to the pilot group.

The communications program was briefly summarized in

a slide presentation that Barry gave to an assembly of

United’s corporate officers on April 23, 1985. PI.Ex. 22.

It included: “informational letters/bulletins as needed,”

“selective canvassing of influential pilots” and “road shows”

conducted by Ferris and Barry. The road shows were meet-

ings of pilots at the various domiciles, where Ferris and

Barry would discuss United’s position in the negotiations

72a

and United’s plans for actions which would affect pilots in

a strike. Barry testified that one purpose of these road shows

was as follows:

We hoped that might result in individual pilots that

were informed and aware of the situation, would

influence a settlement, if you will, to try to go back

to the ALPA negotiating committee and the MEC

and influence them to come to some sort of an

agreement with the company.

Tr. 533. Barry further testified that another purpose of the

road shows was:

There was another purpose that we knew that if

the pilots struck the company, we were going to

have to do some things that were—I will say—rather

stern or unusual, and we wanted to make absolutely

sure that the pilots understood this and could per-

ceive our resolve in going ahead and accomplishing

what we had to do.

Tr. 534.

41. During the 30-day period immediately preceding

the strike, United communicated its plans for the pilots

through letters and road shows. Although the road shows

were sparsely attended, United mailed to all pilots a video-

tape cassette of excerpts of the May 2, 1985 road shows

for pilots domiciled at O'Hare. United communicated the

following points to the pilots as part of its effort to bring

pressure to bear on the ALPA negotiators:

a. On April 24, Barry sent a letter to all pilots. PI.Ex.

15. He stated, “if a pilot strike occurs, United will continue

to operate. Flight operations will change and opportunities

for bidding may open up dramatically.” The letter offered

73a

pilots a chance to take training so that they could qualify

to bid for captains’ jobs in the event of a strike.

b. Barry’s April 24 letter also stated that United would

hire “permanent replacements for striking pilots.” If al-

ready qualified to serve as captains or first officers, they

would be paid $75,000 or $50,000 per year, respectively,

and would be “pay protected” at those rates “even though

they may be later reassigned to lower positions.

c. Barry’s letter added, “THIS COMPANY INTENDS

TO REWARD THE LOYALTY OF THOSE PILOTS

WHO HELP US KEEP THIS AIRLINE RUNNING.”

d. On May 3, Barry sent another letter to the pilots.

Pl.Ex. 16. He stated that striking pilots who reach their

retirement date would be ineligible to receive, during their

retirement, nonpension retirement benefits such as passes

and insurance; that striking pilots who wished to be covered

by insurance would have to convert to an “expensive” policy

which is “not nearly as comprehensive;” that “striking pilots

do not accrue seniority during the period of the strike;” and

that “[s]trikers will be ineligible to receive or continue to

receive sick leave pay.” Finally, Barry stated the following:

BACK TO WORK AGREEMENT—We will not

agree to a back to word agreement which adversely

impacts nonstriking pilots or new hire pilots. In fact

there is no legal obligation to agree to any back

to work agreement. Contrary to what you may

have heard, ALPA cannot guarantee that anything

will be included in a back to work agreement. We

want you to be aware of these policies so that you

will recognize how your decision on a work stop-

page will affect the benefits you and your family

now enjoy. We will hire and train pilots to replace

those who elect not to continue working. These new

74a

pilots will be given a seniority number and will be

permanent replacements. When and if the strike

ends, those who participate in the work stoppage

will be able to return only to fill vacancies for which

they are immediately qualified. Recall will be based

on qualification to perform available work, not

seniority, and it could be several years, if ever, be-

fore striking pilots are returned.

PI.Ex. 16, pp. 4-5 (emphasis in original).

; e. On May 9, 1985, Barry again wrote the pilots to

discuss United’s plan to “rebid” the airline if a strike occurs.

| P].Ex. 17. He stated in part:

Only those pilots who accept and perform their first

and subsequent duty assignments will be eligible to

bid. The first round of bids will be closed as soon

as each pilot who maintains continuous service has

had an opportunity to bid. Any pilot who has been

awarded a bid under this process who subsequently

strikes will forfeit his bid.

We will utilize you in your current assignment, un-

less you can be more productive to the recovery of

the airline by being trained into another position.

In some cases this may mean a PC in your old

equipment. In others it may mean a rating or up-

grading in the aircraft you now fly. Ultimately,

unless the assignment (domicile, equipment and

status) has ceased to exist, you will be trained and

activated into your newly awarded assignment. In

the meantime, you will be paid the greater of the

‘ following: (1) your current assignment, (2) any

other position we have assigned you to, or (3) your

newly awarded bid, if, on a one-for-one basis, a

more junior pilot is functioning in your stead. If

75a

your service is continuous, we will continue your

monthly salary and, also, pay you for any actual

hours flown over 81:00.

f. On May 13, 1985, Pringle wrote to the United pilots,

setting forth the terms which United intended to implement

on May 17 if a strike occurred. PI.Ex. 18. The terms in-

cluded a pay raise for all incumbent pilots. Pringle stated:

Contrary to the misleading information you have

received from ALPA, they cannot guarantee any

striking pilot will ever be returned. Nor can they

promise any striking pilot will not be seriously dis-

advantaged by the rebidding process which will

occur soon after May 17. Nor can ALPA represent

there will not be substantial losses in pension and

medical benefits for striking pilots.

P1.Ex. 18. In sending this letter United hoped to encourage

pilots not to strike and to influence a settlement. Tr. 969.

United also hoped that the proposed pay increase for in-

cumbents would lead pilots to decide against going on strike.

Tr. 1044-45.

g. At the O’Hare domicile road show of May 2, 1985,

Barry further discussed the planned rebidding of the airline.

He stated in part:

We're going to have to run it on a business basis

and to do so, we’re going to take some actions. We

are going to rebid the airline. I have heard screams

—you can’t do that. Yes we can and we're going to.

We're going to rebid it; we're going to rebid it

rapidly. The people that are here on the property

are going to be eligible to bid this thing and that

those who aren’t on the property, are not going to

be eligible to rebid. Now what does that mean to

76a

you. Obviously, if there are bids posted up there

when we won the award procedure, there are some

people that are going to be out of seniority receive

some bids. We won't be able to train them overnight

or instantly because we're going to have to run the

airline—but I can assure you, that those bids will

be honored before we ever award any other vacan-

cies and retrain. They will be honored. We may

use them in this emergency period in a different

posture and in a different position—we will salary

protect them and we will train them when we get

this airline back to normal.

P1.Ex. 53.

h. Ferris also discussed the rebid at the same meeting.

He stated:

But let's assume . . . that 200 guys come back and

they are all spread through the seniority list, all

right? The day we rebid this air line, if they are the

ones on the property, . . . they can bid. You know,

if there are only 200 747 captain vacancies, that’s

what they're going to bid. If they bid that, and they

get it, that’s theirs, period, never to be released. I'll

tell you what, that’s powerful inducement, powerful

inducement. But, again, I hope that that induce-

ment, you know, isn’t what we have to use.

Tr. 469-70.

i. Ferris also discussed the rebid in a meeting with

United’s training check airmen (“TCAs”) in Denver during

the cooling-off period. He stated:

Ferris: What we are going to do is that in about

another three, four days, a letter will go out to all

pilots, setting forth exactly in black and white the

77a

conditions which existing pilots will come to work

for this air line, if they elect to work and not with-

hold services, all right, very clear, and about 24

hours prior to, not “about,” it will be, we start on

the phones.

And we're going to tell everybody ahead of time,

“get the word out, you better be available to answer

the phone,” because if they don’t, we're going to

presume they’ve elected not to return. We're going

to call on the phone and say, “Tomorrow we want

you here, at this time, at this hour, here. Are you

going to [be] there or are you not?”

The individual is going to have to answer that ques-

tion. If they say they’re going to be there, we'll

respect that. If they say they're not going to be there.

I will respect that. Then within 24 hours. . . we're

not all positive on this yet, depending on how many

come, et cetera, we will operate as much of the air

line as we can, put that schedule in place, and then,

probably, within 24 to 48 hours, we will rebid the

air line. So penalty and harm and hurt will begin

within 24 hours. (Laughter)

We're not playing around. You will be here to work.

You don’t show up to work, the harm will hit, and

the union will never negotiate that away. Oh, yes,

I'll go to the negotiating table, but I don’t have to,

to give anything away I don’t want to give away.

And in a back-to-work agreement, when we rebid

the air line that’s it, it sticks. Does that answer. . .?

(Laughter )

Voice: Yes, pretty much.

(Laughter)

78a

Ferris: You know, what it gets down to, you know,

I get a kick out of some of the groups I talk to.

It’s like they can play hardball and withhold their

service and shut down this air line, but I’m supposed

to stand here and be a nice guy. Bullshit. I’m going

to play tough.

Tr. 726-27.

j. Ferris also discussed United’s plans for hiring pilots

in the TCA meeting. He stated:

We have got 500 pre-hires, right? Those pre-hires

are all going, they’ve been given notice, and come

0001 May 17, they’re employed, boom. If they

don’t show up to work, they will never, ever work

for this air line, ever, because they’re not on the

property, they don’t have a number, they don’t have

anything. So 001, these 500 show up to work, okay?

* * * *

And in another two weeks, another 300 right behind

them are going to give up their jobs. Guess what?

We are going to have on this property 900 em-

ployees roughly that we’ve never seen before. And

if you’re a second officer, and you elect to withhold

your services, I doubt that you'll see this air line

again for 20 years. So when you want to play the

game, you better know how you are going to play it.

I will never forsake anybody that comes to work.

I will never forsake their seniority. I will never

negotiate it away. All right? If they want to play

hard, let’s play. But know what game you're getting.

.. . The sad part about this, these guys marching

up and down the roads like dummies, they don’t

know what they’re into. They don’t know the rules.

They think it’s sweetness and light. And that’s sad.

79a

Tr. 728-29.

42. When ALPA learned that United intended to use

the Group of 500 as replacements during a strike, Hall sent

a letter to the Group of 500 encouraging them not to cross

the picket line. Tr. 741-42; Def.Ex. 81. The student pilots

also received a report from the Future Aviation Pro-

fessionals Association, commissioned by ALPA, informing

them about the labor dispute at United. Def.Ex. 152;

Duffy Dep. at 43.

43. Hall sent letters to various pilot groups encouraging

them not to work for United in the event of a strike. Tr.

755-57; Def.Ex. 92.

4. Prestrike Negotiations

44. When the parties had failed to reach an agreement

by April 15, 1985, the NMB declared an impasse in nego-

tiations and the parties were released from mediation. The

NMB offered arbitration to resolve the dispute in accor-

dance with Section 5 of the RLA, 45 U.S.C. § 155. United

promptly rejected arbitration. ALPA did not respond. The

NMB, on April 16, “released” the parties from mediation,

thus commencing the final 30-day “cooling-off” period under

the RLA. Tr. 963. United and ALPA continued to nego-

tiate during the 30-day cooling-off period which ended at

midnight on May 16, 1985. Tr. 963.

45. During the time that United communicated its strike

plans to the pilots, collective bargaining negotiations con-

tinued between ALPA and United. United stated that, in

the prestrike negotiations, the parties made a “lot of move-

ment... with the objective being to try and reach an agree-

ment.” Tr. 485, 501.

46. The final prestrike negotiations took place in Boston

during the week of May 13. On that date, United made

80a

a new proposal which continued to include its reduced pay

scale for new hires. Pl.Ex. 18. On May 14, ALPA re-

iterated its position that the new-hire scale should exist

only for the first five years of the scale and should then

“merge” with, or equal, incumbent rates in the sixth year

of service. Thomson Dep. at 52. ALPA indicated its agree-

ment to United’s rates for the first five years with the intent,

as perceived by United, of resolving the new-hire pay issue.

Tr. 498.

47. On Wednesday, May 15, the parties addressed their

attention to the remaining isues other than the new-hire

scale and concluded these other issues by the morning of

May 16. Thomson Dep. at 59-60. The only remaining

issue was the new-hire pay scale. Stipulation at © 10.

48. Negotiations then resumed on the new-hire pay

scale at approximately 1:00 p.m. on May 16. Thomson

Dep. at 60-61. United proposed that the parties first reach

agreement on the rates for the first five years and then

move to the other issues. The ALPA committee suggested

that this “piecemeal” approach was not useful in light of

the time remaining. The United negotiators agreed. At

2:00 p.m., the parties adjourned to their caucuses.

Thomson Dep. at 62.

49. At approximately 6:00 p.m. on May 16, the parties

again met at the negotiating table. United made its final

prestrike proposal on the new-hire pay scale. Thomson

Dep. at 63; Tr. 1046. United proposed that new-hire

rates

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