Petition for Writ of Certiorari — Air Line Pilots Ass'n, International v. Delta Air Lines, Inc.

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(1 FILED

001385 mar -2 2001

. mee FICE OF THE CLE

IN THE

Supreme Court of the United States

AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, ef ai.,

Petitioners,

Vv.

DELTA AIR LINES, INC..,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

MARCUS C. MIGLIORE MICHAEL E. ABRAM

Legal Department Counsel of Record

AIR LINE PILOTS ASSOCIATION, MICHAEL L. WINSTON

INTERNATIONAL PETER D. DECHIARA

1625 Massachusetts Avenue, N.W. COHEN, WEISS AND

Washington, D.C. 20036 SIMON LLP

(202) 797-4054 330 West 42nd Street

New York, New York 10036

(212) 563-4100

Attorneys for Petitioners Air

Line Pilots Ass'n, Int'l

(“ALPA” ), the Delta Master

Executive Council of ALPA,

Charles Giambusso, Mark

Moore, and James Icenhour

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WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

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QUESTIONS PRESENTED

1. Was it proper for the Eleventh Circuit to hold, in

conflict with the decisions of this Court and of the Third,

Sixth, and Tenth Circuits, that a court may order a labor

union to halt employee conduct that the union has been found

not to have sponsored, participated in, condoned or ratified

but instead to have condemned?

2. Was it proper for the Eleventh Circuit to hold, in

conflict with the Third, Sixth, and District of Columbia

Circuits, that in an action governed by the Norris-LaGuardia

Act (“NLGA”), 29 U.S.C. §§ 101 et seg., a federal court has

jurisdiction to issue a preliminary injunction despite material

fact disputes as to which there has never been live testimony

subject to cross-examination?

(i)

LIST OF PARTIES TO THE PROCEEDINGS

The Air Line Pilots Association, International, AFL-CIO

(“ALPA”), the Delta Master Executive Council of ALPA,

Charles Giambusso, Mark Moore and James Icenhour were

defendants in the district court, appellees in the court of

appeals, and are petitioners in this Court.

The following individuals were not before the district court

at the time of the order appealed from; since that time they, as

well as the petitioners in this Court, have answered as

defendants in the district court: Derry R. Anderson, John

Child, Robert Connell, Michael Cooper, Gary Cunningham,

James Doyle, Chris Hayes, M.P. Holland, Joseph Houseman,

Eric Janssen, Michael Jones, John Ley, Scott Martin, Brian

McManus, Martin Meeker, Stephen Mills, Robert Morus,

Tim O’Malley, Steve Shapard, Steve Simonis, Keith

Simpson, Rick Smail, Winford Speakman, Sandra Stephens,

Robert Stimpson, Jay Weatherman, Greg Werking, Randy

Worrall, Charles Bless, Timothy Bohan, David Churan,

Edward Driscoll, Ed Havrilla, James Kachadurian, Dean

Marvin, Jon Matson, Gregg Mettler, Donald Moore, G.L.

Morris, Charles Sargent, William Sawtelle, Scott Spears,

G.K. Stewart, Larry Troyer, and James White. None of these

individuals was an appellee in the court of appeals; none is a

petitioner in this Court.

None of the petitioners or defendants is a corporation.

Delta Air Lines, Inc. was the plaintiff in the district court,

appellant in the court of appeals, and is respondent in this

Court.

TABLE OF CONTENTS

Page

COU TIONS PRESENTED \.ncccccccccscccccssoscesccscssssssesceess i

LIST OF PARTIES TO THE PROCEEDINGS ............ il

Bs iv

EI III TITTY citdiciehcdercetbats ipetebanecentpenapscmnnesmnnsinnmn’ l

STATEMENT OF JURISDICTION ..............ccccccccsesseeee l

8 l

RSE RUUIO CE GE” BINS CPe i ccssscccsssscsssnsccnesesncccnncsstes l

Facts and Proceedings Below ................ccsssesesseee 2

REASONS FOR GRANTING THE WRIT................... 5

L NO BASIS EXISTS FOR THE COURT OF

APPEALS’ UNPRECEDENTED HOLDING

THAT ALPA HAS A DUTY TO END UN-

AUTHORIZED, UNRATIFIED EMPLOYEE

CONDUCT 5

I. THE COURT OF APPEALS DECISION

VIOLATES THE PLAIN JURISDICTIONAL

LIMITS ON THE FEDERAL COURTS IM-

POSED BY CONGRESG....... . 8

NII siasecssthincnssniibhsnsecnenssnansseneassetinbinacnsiiaasses 1]

APPENDICES

APPENDIX A: Opinion of the Court of Appeals,

dated January 18, 2001 ..............c.000+ la

APPENDIX B: _ Denial of Petition for Rehearing en

banc, dated February 9, 2001, and

Judgment of Court of Appeals

dated January 18, 2001 .................000. 24a

APPENDIX C: Opinion of the District Court, dated

EROCNIOE FT Bi cececcocccsessesneesesnerse 27a

APPENDIX D: Text of Pertinent Statutory Prov-

ERE oR oc 46a

TABLE OF AUTHORITIES

CASES Page

American Airlines v. APA, 160 L.R.R.M. (BNA)

BD GR Ss SIO itcisaicencnviintninithniuintinianenies 7

Brotherhood of R.R. Trainmen v. Jacksonville

Terminal, 394 U.S. 369 (1960) ........cscssscssseseeees 6

Burlington N.R.R. v. Brotherhood of Mainten-

ance of Way Employees, 481 U.S. 429 (1987)... 7

Carbon Fuel Co. v. UMW, 444 U.S. 212 (1979) ... 5

Chicago & N.W. Ry. Co. v. United Transp.

Cama, TER WB. SIO IGT 1D) ccnscccscesecessnniocsanecsonee 6, 8

Coronado Coal Co. v. UMW, 268 U.S. 295

Cer sc sieuieicccncsetessesdeisiaianieasetetiniclbdennlaaiiidiibiiealidpamiiananisads 5

In re District No. 1—Pacific Coast Dist., Marine

Eng’rs Beneficial Ass’ n, 723 F.2d 70 (D.C. Cir

SU cssccielisiaiisisenidaiblasitciainsidbatalieitiidel scenic ta Le 8-9 |

Fry v. ALPA, 88 F.3d 831 (10th Cir. 1996) .......... 5-6 /

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ..... 8

Metro-North Commuter R.R. v. Local 808, IBT,

114 Lab. Cas. (CCH) 911,948 (S.D.N.Y.

FGI) scishisnietnianieuiniseninieriibendstehipadinaaiatstiamaiiaienéiin 7

Monterey v. Del Monte Dunes at Monterey, Ltd.,

ee es OE Cee bisiasseestitashnicdatinnitentlideintiniaiatien 9

NAACP v. Claiborne Hardware Co., 458 U.S.

Se eae cisssnaintenisneidlchidinciassntensdacainineisinaaaeisinitatin 5

National Airlines v. International Ass’n of

Machinists, 416 F.2d 998 (Sth Cir. 1969).......... 7

National R.R. Passenger Corp. v. Brotherhood of

Locomotive Eng’rs, 113 Lab. Cas. (CCH)

ek ON aE Ce 7

North American Coal Corp. v. Local Union

2262, 497 F.2d 466 (6th Cir. 1974) ...... ee eeeeees 5

Philadelphia Marine Trade Ass’n v. Local 1291,

Int’l Longshoremen’s Ass’ n, 909 F.2d 754 (3d

TABLE OF AUTHORITIES—Continued

Page

Prater v. UMW, 793 F.2d 1201 (11th Cir. 1986)... 6

Railway Express Agency, Inc. v. Brotherhood of

Ry., Airline & S.S. Clerks, 437 F.2d 388 (5th

Cait RUN Gis meceselesicaibhaltiiiiibadart nea ae eee 10

U.S. Steel Corp. v. UMW, 598 F.2d 363 (5th Cir.

PWT iii dccesdiasaabacsen deasiindiadcieansiiniee diacetate aaa 6

UAW v. LaSalle Mach. Tool, Inc., 696 F.2d 452

SU ees We itiietininhieinesiniiiasbncieneiitibte Si aca oo 9

United States v. Lane, 474 U.S. 438 (1986)........... 5

United Steelworkers v. Lorain, 616 F.2d 919 (6th

Aa SET weeshnasnniinsdaieniaisnintiidniniiniadiaieaicmeaae 6

United Tel. Workers v. Western Union, 771 F.2d

Br Cre le Se Ricnttsiannentastteninadcitine 8

STATUTES AND RULES

Be ie eS csetetinnniencindaniiaicss ie ]

Bee ren Oe ciceissninsaaetaicanenidime aaa 3

y BESS oh S - ) NON RE NNE LT ONT 3

Norris-LaGuardia Act, 29 U.S.C. §§ 101 et seq. ... passim

Railway Labor Act, 45 U.S.C. §§ 151 et seq......... passim

SEA Tee MOWER UWE -cxcicsstonenapicaecrnnanteeadiiadabaiiaimaiions 9

OPINIONS BELOW

The opinion of the court of appeals panel (App. 1a-23a) ' is

reported at 238 F.3d 1300 (11th Cir. 2001). The court of

appeals’ denial of rehearing en banc (App. 24a-25a) has not

been reported. The opinion of the district court (App. 27a-

45a) is reported at 123 F. Supp. 2d 1356 (N.D. Ga. 2000).

STATEMENT OF JURISDICTION

The judgment of the court of appeals panel was entered on

January 18, 2001. App. 26a. A timely petition for rehearing

en banc was denied on February 9, 2001. App. 24a-25a. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

STATUTES INVOLVED

This case involves Section 2 First of the Railway Labor

Act (“RLA”), 45 U.S.C. § 152 First, and Section 7 of the

Norris-LaGuardia Act (“NLGA”), 29 U.S.C. § 107. Both

Statutory provisions are set out in the appendix. App. 46a-48a.

STATEMENT OF THE CASE

In a holding that conflicts with this Court’s precedents and

the holdings of other circuits, the court of appeals in this case

directed the district court to order a union to halt employee

conduct that the union did not sponsor, participate in,

condone, or ratify, but in fact condemned. In reversing the

district court’s refusal to enjoin Petitioner Air Line Pilots

Association (“ALPA”) ? at the request of Respondent Delta

Air Lines, Inc. (“Delta”), the Eleventh Circuit’s decision

contravenes this Court’s holdings that unions, like other

'“App. ___” refers to the appendix annexed to this petition.

?in addition to ALPA, petitioners include ALPA’s Delta Master

Executive Council (“MEC”) and the MEC’s officers, Charles Giambusso,

Mark Moore and James Icenhour.

membership organizations, can be held responsible only for

their own wrongdoing, not the unauthorized acts of their

members. Enjoining ALPA for the wrongdoing of others

violates basic constitutional principles. It also stretches a

union’s obligations under the Railway Labor Act (“RLA”),

45 U.S.C. §§ 151 et seqg., well beyond both that statute’s text

and any prior case law interpreting it, impermissibly requiring

a union governed by the RLA to do whatever is necessary to

end unauthorized, unratified employee conduct. In effect, the

court of appeals decision forces a union to police employee

conduct as an arm of management, a role completely alien to

the labor relations scheme envisioned by the RLA and,

indeed, all federal labor legislation.

In addition, in a holding that contravenes an express

jurisdictional requirement of the NLGA, and that conflicts

with those of other circuits, the Eleventh Circuit ordered that

an injunction be entered against ALPA despite material

disputed facts as to which there has never been live testimony

or an opportunity for cross-examination. The court of appeals

decision reduces Congress’ jurisdictional mandate of a

hearing with live testimony to nothing more than a

discretionary rule of evidence that can be jettisoned if a court

believes evidence to be sufficiently reliable. By judicial fiat,

the decision makes optional an unambiguous jurisdictional

requirement.

The Eleventh Circuit decision conflicts with this Court’s

jurisprudence and case law in other circuits, and should not

be allowed to stand. ;

Facts and Proceedings Below

Since September 1999 (and through the date of the court of

appeals decision), Delta and ALPA have been engaged in

negotiations for a new collective bargaining agreement

(“CBA”). App. 2a. Under the existing CBA, as the court of

appeals recognized, pilot overtime flying is _ entirely

voluntary. App 2a-4a. The district court found that certain

Delta pilots, although counseled not to do so by ALPA,

engaged in concerted efforts to reduce overtime flying as a

way to pressure Delta during contract negotiations.

App. 29a, 30a.

Indeed, far from sponsoring these actions, ALPA, in the

summer of 2000, “unanimously directed a recommendation”

to the pilots that they meet Delta’s aggressive flight schedule

by flying “maximum overtime at premium rates.” App. 34a.

In November 2000, when some pilots were advising others

not to fly overtime, ALPA responded by repeatedly advising

the pilots, through letters, e-mails, website postings and

telephone messages, that pilots should respect the choice of

others on whether to fly overtime, that ALPA strongly

opposed any concerted action on the matter of overtime, and

that overtime decisions should not be used as a vehicle for

concerted activity. See App. 38a-39a. Delta even recognized

and expressed its appreciation for ALPA’s efforts to curb

pilot harassment related to any overtime efforts. App. 39a.

On December 5, 2000, Delta nonetheless sued ALPA under

the RLA for an injunction to stop the anti-overtime efforts of

some pilots. App. 6a.’ At the preliminary injunction hearing

held the next day, Delta charged that ALPA had sponsored

the anti-overtime effort but presented its case against ALPA

entirely through declarations and exhibits; neither on

December 6 nor at any other point in this case has there been

direct- or cross-examination of witnesses. Without adducing

any competent evidence whatsoever concerning ALPA’s

ability to do more than it had already done, Delta also

suggested that in order to make employees stop their alleged

misconduct ALPA should be enjoined even if the district

court were to find that the union had neither sponsored nor

ratified the alleged misconduct. See App. 39a.

* The district court’s jurisdiction was invoked under 29 U.S.C. $§ 1331

and 1337.

The district court denied Delta’s motion to enjoin ALPA.

App. 41a. While finding that an “undisclosed” number of

rank-and-file pilots were engaged in a campaign to

discourage overtime flying (App. 29a), the court determined

that “[nJeither the Union leadership nor the present Delta

Master Executive Council (‘MEC’) of ALPA supports this

effort” (App. 30a) and that ALPA “has taken affirmative

action not only to inform its members of the possible

illegality of their action, but has taken action to discourage

unlawful activity.” App. 40a. The court stated that it would

“not hold a union liable for the unilateral unlawful actions of

its members without evidence indicating the union’s

involvement” nor would it “hold that a union has an

affirmative duty to end or prevent the unilateral unlawful

activity of its members, especially when there is no finding of

involvement on the part of the union.” /d.

A three-judge panel of the United States Court of Appeals

for the Eleventh Circuit reversed and instructed the lower

court to issue an injunction against ALPA. App. 22a-23a.

The panel left undisturbed the lower court’s findings that

ALPA neither sponsored nor ratified a no-overtime campaign

and in fact discouraged such a pilot campaign. App. 18a.

But the panel nevertheless held that under Section 2 First of

the RLA, 45 U.S.C. § 152 First, even if ALPA “has not

sponsored or ratified the unlawful job action by the pilots, it

has a duty to end such unlawful action.” App. 19a, n.22

(emphasis added). The appeals court ordered that a

preliminary injunction be entered despite the lack of a hearing

with live testimony, even while acknowledging that “it is

clear that [NLGA] section 107 [29 U.S.C. § 107] requires live

testimony in order to obtain a temporary or permanent

injunction in a labor dispute... .” App. 20a.

On February 14, 2001, following the Eleventh Circuit’s

denial of petitioners’ en banc request and that court’s issuance

of the mandate, the district court entered a preliminary

injunction against ALPA without further hearing.

OT RA LCE SEI Diath ARR Os ely AT ES Ms PLS

REASONS FOR GRANTING THE WRIT

I. NO BASIS EXISTS FOR THE COURT OF

APPEALS’ UNPRECEDENTED HOLDING

THAT ALPA HAS A DUTY TO END UNAUTH-

ORIZED, UNRATIFIED EMPLOYEE CONDUCT

In this case a federal court of appeals ordered that an

injunction should issue against a labor organization that did

no wrong, in order to require that organization to end what

the court regarded as misconduct by others. This Court,

however, has repeatedly held that membership organizations,

including unions, can be held responsible only for their own

wrongdoing, not the unauthorized, unratified acts of their

members. See NAACP v. Claiborne Hardware Co., 458 U.S.

886, 931 (1982), Carbon Fuel Co. v. UMW, 444 USS. 212,

216 (1979); Coronado Coal Co. v. UMW, 268 U.S. 295, 304

(1925). This limitation on union liability rests on the due

process clause of the United States Constitution, specifically

the “cherished principle that one is tried for one’s own deeds,

and not for another’s.” United States v. Lane, 474 U.S. 438,

475 (1986); see Claiborne Hardware, 458 U.S. at 931

(limitation on organizational liability based in Constitution);

North American Coal Corp. v. Local Union 2262, 497 F.2d

466 (6th Cir. 1974) (making unlawful employee conduct

“automatically attributable to the union” is “repugnant to due

process of law’’).

By contravening this principle, the Eleventh Circuit has

also split from other circuits, which have consistently held

that a union cannot be responsible for acts of its members

which the union neither sponsored nor ratified. See, e.g., Fry

v. ALPA, 88 F.3d 831, 842 (10th Cir. 1996) (union cannot be

liable for unauthorized, unratified employee acts based solely

on its failure “to stop such acts”); Philadelphia Marine Trade

Ass'n v. Local 1291, Int'l Longshoremen’s Ass’n, 909 F.2d

754, 758 (3d Cir. 1990) (“union can only be subject to

injunctive relief when the picketing is attributable to it”);

United Steelworkers v. Lorain, 616 F.2d 919, 921 (6th Cir.

1980) (union not “required to take affirmative action” to end

unauthorized job action).

By holding that a union has a “duty to end” employee

misconduct, even if the union neither sponsored nor ratified it

and indeed affirmatively condemned it, the court of appeals

imposed a standard on ALPA that approaches strict liability

for employee conduct. Under prior Eleventh Circuit case

law, a union, to avoid a finding of ratification, has to make

clear efforts to stop the employee conduct. See Prater v.

UMW, 793 F.2d 1201, 1210 (11th Cir. 1986); U.S. Steel

Corp. v. UMW, 598 F.2d 363, 365 (Sth Cir. 1979). Although

the district court concluded that ALPA made such efforts and

hence did not ratify a no-overtime campaign (see App. 30a),

and the court of appeals did not disturb this finding (see App.

18a), the court of appeals held this was not enough, and that

ALPA had a duty to take additional measures to “end” any

pilot anti-overtime campaign. See App. 19a, n.22.

This extreme standard, exceeding even the standard needed

to avoid ratification, is particularly misplaced in a case like

this, involving voluntary overtime. Under the Eleventh

Circuit’s decision, to avoid an injunction ALPA has to try to

require pilots to volunteer for work they are individually

under no obligation, contractual or otherwise, to perform, and

in sufficient numbers to satisfy Delta and the court. No prior

legal authority exists to so press a union into service as the

enforcement arm of management.

Nothing in the RLA supports the Eleventh Circuit’s

decision. RLA Section 2 First requires the parties to “exert

every reasonable effort to make and maintain agreements.”

See Chicago & N.W. Ry. Co. v. United Transp. Union, 402

U.S. 570, 571 n.1 (1971) (emphasis added); it bars a union

during contract negotiations from itself disturbing the status

quo, see Brotherhood of R.R. Trainmen v. Jacksonville

Terminal, 394 U.S. 369, 378 (1960), an obligation ALPA

fulfilled. But Section 2 First nowhere requires a union to

“end” unauthorized employee activity that the union has

already condemned, or makes a union responsible for the

unauthorized, unratified acts of others. Indeed, in every prior

RLA case granting an injunction against a union over the

union’s objection, the union was found to have instigated,

encouraged or been otherwise involved in the employee job

action. See, e.g., American Airlines v. APA, 160 L.R.R.M.

(BNA) 2459 (N.D. Tex. 1999); Metro-North Commuter R.R.

v. Local 808, IBT, 114 Lab. Cas. (CCH) $ 11,948 (S.D.N.Y.

1989); National R.R. Passenger Corp. v. Brotherhood of

Locomotive Eng’rs, 113 Lab. Cas. (CCH) 4 11,766 (D.D.C

1989). The Eleventh Circuit decision is the only case

granting an injunction over a union’s objection despite a

specific finding of fact that the union neither sponsored nor

ratified the employees’ action and indeed told the employees

it opposed the action.*

The decision of the court of appeals also contravenes the

plain language of Section 7(a) of the NLGA, which only

permits an injunction against a union engaging in unlawful

conduct or “actually authorizing or ratifying the same.”

29 U.S.C. § 107(a). While acknowledging that the NLGA

“generally prohibits a court from holding a union responsible

for illegal acts of the union members” (App. 10a), the

Eleventh Circuit held that RLA Section 2 First “takes

precedence.” App. 13a. Nothing in the language of RLA

Section 2 First, however, imposes responsibility on a union

for unauthorized employee conduct and, as this Court has

held, “with the choice between the ambiguity in the RLA and

the unambiguous mandate of the [NLGA],” the latter governs.

Burlington N.R.R. v. Brotherhood of Maintenance of Way

Employees, 481 U.S. 429, 447 (1987). Indeed, this Court has

“In National Airlines vy. International Ass'n of Machinists, 416 F.2d

998 (Sth Cir. 1969), relied upon by the court of appeals (App. 17a), the

issue was a carrier’s right to fire employees who engage in an unlawful

sit-down strike. The union conceded that an injunction was appropriate.

Id. at 1001.

warned, as though in anticipation of the Eleventh Circuit’s

decision, that “the vagueness of the obligation under § 2 First

could provide a cover for freewheeling judicial interference in

labor relations of the sort that called forth the Norris-

LaGuardia Act in the first place.” Chicago & N.W. Ry. Co.,

402 U.S. at 583.

Because the decision of the court of appeals so far departs

from accepted constitutional law and labor law doctrine as to

rewrite basic principles, and because it creates a split with

other circuits, it warrants this Court’s review.

II. THE COURT OF APPEALS DECISION VIOL-

ATES THE PLAIN JURISDICTIONAL LIMITS

ON THE FEDERAL COURTS IMPOSED BY

CONGRESS

In Section 7 of the NLGA, Congress withdrew from the

federal courts any jurisdiction to issue an injunction in a labor

dispute “except after hearing the testimony of witnesses in

open court (with opportunity for cross-examination).” 29

U.S.C. § 107. Despite the plain language of the statute the

Eleventh Circuit, in an act of pure judicial fiat, read this

jurisdictional bar as optional, and instructed the district court

to order an injunction without there ever having been a

hearing with live testimony and the opportunity for cross-

examination. By doing so, the appeals court did violence to

the “venerable principle that if the language of a statute is

clear, that language must be given effect.” INS v. Cardoza-

Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J., concurring). It

also created a split with the holdings of other circuits. See

United Tel. Workers v. Western Union, 771 F.2d 699, 703 (3d

Cir. 1985) (court without jurisdiction to issue injunction

without holding hearing with testimony); /n re District No.

1—Pacific Coast Dist., Marine Eng’rs Beneficial Ass’n, 723

F.2d 70, 77 (D.C. Cir. 1983) (court lacked jurisdiction to

issue an injunction when no testimony heard: “A district court

has no jurisdiction under the Norris-LaGuardia Act to issue a

labor injunction without adhering to the explicit terms of the

Act.”) (emphasis in original); UAW v. LaSalle Mach. Tool,

Inc., 696 F.2d 452, 456 (6th Cir. 1982) (“Only after it has

heard the testimony of witnesses in open court . . . does a

federal court have jurisdiction to issue an injunction . . .”),

In effect, the Eleventh Circuit downgraded NLGA Section

7 from a jurisdictional requirement to a rule of evidence,

holding that NLGA Section 7 “is not so much about requiring

live testimony . . . as it is about ensuring the presence of

reliable evidence.” App. 20a (emphasis in original). Indeed,

the appeals court expressly analogized NLGA Section 7 to

the hearsay rule. App. 22a. The hearsay rule, however,

contains an express exception, making admissible out-of-

court statements that are sufficiently trustworthy. See FED. R.

EviD. 807. NLGA Section 7, by contrast, contains no such

exception, and because it is a jurisdictional and Statutory

requirement, a court has no power to create one.

The Eleventh Circuit’s nullification of the jurisdictional

live testimony requirement was particularly egregious

because the evidence taken by the district court—which the

appeals court deemed sufficiently reliable as not to require

live witnesses—did not form the basis for the injunction that

the court of appeals deemed to be necessary. As the court of

appeals acknowledged, “[tjhe only material issue at the

hearing was whether ALPA actively sponsored or ratified the

pilots’ no-overtime campaign.” App. 2la. There was no

testimony or cross-examination on the entirely separate,

intensely fact-bound question that the appeals court

subsequently found to be controlling: whether ALPA, under

RLA Section 2 First’s “every reasonable effort” standard, had

made sufficient efforts to end the alleged misconduct by some

individual pilots. App. 22a-23a. See Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687, 721 (1999) (question

of reasonableness essentially fact-bound). For example, no

hearing with live testimony addressed whether and to what

extent ALPA could have affected the amount of voluntary

overtime flying the pilots performed. Indeed, the total absence of

evidence on this question forced the appeals court to admit the

possibility “that ALPA has in fact done all that it can do . . .” App.

18a. Thus, ALPA was denied a hearing on the central factual

issue on which the appeals court based its decision, even as the

court of appeals speculated that ALPA might not have satisfied

the court’s newly-minted legal standard.

In creating its unsupportable re-writing of the NLGA, the court

of appeals noted that the NLGA does not require live testimony

for a temporary restraining order. App. 20a-22a. The court failed

to mention, however, that under the statute a TRO cannot last

more than five days, see 29 U.S.C. § 107, and did not instruct the

district court to order a TRO limited in this way; it ordered that a

preliminary injunction be entered. See App. 2a, 17a, 22a. NLGA

Section 7 expressly requires a hearing with live testimony before

a federal court has jurisdiction to issue such an injunction.

In the only case the Eleventh Circuit cited to support its

holding, Railway Express Agency, Inc. v. Brotherhood of Ry.,

Airline & S.S. Clerks, 437 F.2d 388 (Sth Cir. 1971) (see App.

21a-22a), the court held that the unions had waived oral testimony

by witnesses. 437 F.2d at 395. Moreover, the crucial facts were

stipulated by counsel. See id. The Railway Express court held

that “[t]here was no violation of § 7 of the Norris-LaGuardia Act

under these limited circumstances.” Id. (emphasis added). Here,

by contrast, ALPA neither stipulated to crucial facts nor waived

the NLGA’s live testimony requirement.

In sum, no hearing with live testimony took place, and no

hearing at all took place on the issue on which the appeals court

rested its decision—whether ALPA had done all it was required

to do to discourage the conduct of individual pilots. The Eleventh

Circuit erred in instructing the district court that it had jurisdiction

to issue an injunction absent such a hearing. The court of appeals

decision conflicts with both the clear language of the NLGA and

cases from other circuits interpreting the NLGA. It should be set

aside.

CONCLUSION

granted.

MARCUS C. MIGLIORE

Legal Department

AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL

1625 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 797-4054

For the foregoing reasons, a writ of certiorari should be

Respectfully submitted,

MICHAEL E. ABRAM

Counsel of Record

MICHAEL L. WINSTON

PETER D. DECHIARA

COHEN, WEISS AND

SIMON LLP

330 West 42nd Street

New York, New York 10036

(212) 563-4100

Attorneys for Petitioners Air

Line Pilots Ass'n, Int'l

(“ALPA” ), the Delta Master

Executive Council of ALPA,

Charles Giambusso, Mark

Moore, and James Icenhour

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APPENDICES

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APPENDIX A

IN THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 00-16472

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

DELTA AIR LINES, INC..,

Plaintiff-Appellant,

versus

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, ef ai.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Georgia

(January 18, 2001)

Before TJOFLAT, BARKETT and MAGILL*, Circuit

Judges.

TJOFLAT, Circuit Judge:

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

the district court’s denial of a preliminary injunction against

the Air Line Pilots Association. Because we find concerted

action on the part of the pilots and because the Air Line Pilots

Association has a duty under the Railway Labor Act, 45

U.S.C. § 152 First, to prevent such action, we reverse and

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

sitting by designation.

remand to the district court with instructions to issue an

appropriate injunction.

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

Association, International (“ALPA”) are parties to a

collective bargaining agreement (“CBA”) that governs the

terms and conditions of employment for over 9,800 pilots

employed by Delta.’ Delta and ALPA commenced

negotiations for a new CBA in September 1999. These

negotiations are ongoing.

In the midst of these ongoing negotiations, Delta pilots

began to decline to fly “overtime.” Overtime is built into

Delta’s flight schedule, accounting for approximately five to

seven percent of scheduled flights, and derives from the

CBA.’ “Overtime” is in some ways a misnomer, for this is

really unscheduled “open time” on the flight schedule in

which pilots may volunteer to fly additional flights above

their pre-arranged flight schedule. Although Delta maintains

a pool of reserve pilots to operate flights in the event a

scheduled pilot is unavailable, it relies upon pilots to “pick

up” these overtime flights in order for Delta to operate all of

' Delta is a common carrier by air engaged in the transportation of

passengers and freight in intrastate and interstate commerce throughout

the United States. ALPA is a labor organization that is the exclusive

bargaining representative of Delta’s pilots.

? Under the current CBA, Delta schedules flights for public purchase,

hires and trains pilots to operate those flights, places the flights in monthly

pilot schedules that pilots bid to operate, maintains a number of “reserve

pilots” to operate flights in the event that scheduled pilots become

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

“overtime” above their schedule.

its scheduled flights.?> A pilot has the right, under the CBA,

to exercise his or her individual choice and decline to pick

up overtime flights. Additionally, a pilot can avoid being

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

and Green Slip with Conflict. White Slip flying, the most common kind

of overtime (an average of 6.77% of the total pilot credit hours per month

from October 1, 1999 to September 30, 2000 were accounted for by white

slip flying), is done at regular contract rates. Green Slip and Green Slip

with Conflict are flown at premium rates, but do not reduce the

availability of a particular pilot for overtime in subsequent months.

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

according to their training on particular equipment and seniority. A

number of pilots, usually between fifteen and twenty-five percent, are

scheduled as reserves. Open time may be assigned to reserves, if they are

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

voluntarily pick up open time; this increases a pilot’s flight hours and

income. Pilots who desire premium pay may choose to fly Green Slip

rather than White Slip, which means that the pilot will only be called upon

after all pilots with White Slips and reserves for that day have been used

to fill vacancies. A pilot may also request to fly open time hours on a

flight which conflicts with the pilot's pre-assigned schedule; this is Green

Slip with Conflict. If this open time is awarded, then the pilot drops his or

her originally scheduled trip but receives payment for both the pre-

assigned trip and the trip actually flown.

Another method of flight Staffing is “inverse assignment.” Inverse

assignment involves Delta contacting available and qualified pilots, in

inverse order of seniority, to operate a flight. Inverse assignment duties

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

Delta has exhausted all pilots volunteering for White Slips and Green

Slips. Pilots often use answering machines or fail to answer their tele-

phones, which limits the value of inverse assignment since a pilot may not

be assigned unless he or she returns a call to Crew Scheduling. Inverse

assignment with conflict works in the same way as regular inverse

assignment, except that Delta calls upon pilots whose pre-assigned

schedule will conflict with the proposed inverse assignment. Therefore,

inverse assignment with conflict only occurs after Green Slips with

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

exhausted.

assigned to operate overtime flights by exercising his or her

CBA rights not to answer a telephone call and not to return a

telephone call to Delta; pilots may not be assigned to

overtime flying unless they have spoken with Crew

Scheduling.

Although each individual pilot may make personal choices

about how and whether to work overtime, Delta relies upon

many of the pilots choosing to work this open time to fulfill

its scheduled flights. If all of Delta’s pilots were to refuse to

pick up additional flights and refuse to work overtime, Delta

would not be able to operate its full complement of flights.

Although there are some alternatives available to Delta under

the CBA, including raising the “cap” on pilot hours in a given

month, staffing flights with reserves or management pilots,

and pre-canceling flights and rebooking passengers in

advance, these alternatives are limited and generally do not

allow Delta to fly its full complement of scheduled routes.

Beginning in November 2000, apparently just in time for

holiday travel, Delta pilots intensified their “no-overtime

campaign.” This action by the pilots, viewed in the context

of the holiday travel season and the ongoing labor

negotiations between ALPA and Delta, leads to the obvious

inference that the pilots are seeking to pressure Delta into

making concessions in the negotiations for a new CBA.

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

from Delta’s flight statistics. Historically, Delta cancels no

more than one or two of 2,700 flights daily due to lack of

pilots. However, in November 1999, pilots averaged 2,053

daily requests for overtime; in November 2000 they averaged

only 1,276 daily requests. In the first three days of December

* There is evidence in the record indicating that the pilots’ actions had

been ongoing since late summer, but the no-overtime campaign increased

in intensity and resolve beginning in November.

1999, pilots averaged 1,678 daily requests; in those same

days in December 2000 they averaged 503 requests. Delta

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

month of November 1999, while it canceled 375 flights in

November 2900. In the first three days of December 1999,

Delta had no cancellations; in the first three days of

December 2000 Delta canceled 386 flights. Clearly, the

pilots’ efforts to refuse overtime is affecting both Delta’s

flight schedule and the traveling public.®

In the midst of the no-overtime campaign by the pilots,

Delta tried to work with ALPA by enlisting ALPA’s

assistance in ending the pilots’ concerted no-overtime

campaign. During this time, ALPA issued a number of

directives to the pilots advising them of their rights under the

CBA regarding overtime; ALPA recommended flying over-

time at premium rates—green slip flying. By November

2000, when some pilots were advising (and sometimes

threatening) other pilots not to seek or fly overtime, the Delta

Master Executive Council of ALPA (“MEC”)’ advised pilots

several times, through several media, that pilots should

respect the choices of others regarding overtime and that

whether to fly overtime was the individual choice of each

pilot. These steps by ALPA and the MEC had no measurable

* Delta has submitted additional information indicating that over 1,200

flights were canceled between November 19, 2000 and December 10,

2000, and an additional 4,037 scheduled flights were canceled between

December 11, 2000 and January 1, 2001 — all due to a lack of pilots.

° Delta’s November 2000 cancellations affected 340,000 passengers

who were booked on the canceled flights. The cancellations during the

first three days of December 2000 affected an additional 30,000

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

affected by the cancellation of 4,037 scheduled flights from December 11,

2000 to January 1, 2001.

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

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

to overcome the no-overtime campaign either through

compensatory scheduling methods or through ALPA’s

communications; therefore, Delta filed the present action.

Delta filed a verified complaint on December 5, 2000 in

the district court for the Northern District of Georgia. The

complaint alleged an unlawful job action in violation of the

Railway Labor Act (“RLA”), 45 U.S.C. §§ 151-188." The

complaint named fifty-one defendants, including ALPA, the

MEC and its officers, and several individual pilots.” Delta

filed motions for a temporary restraining order (“TRO”) and a

preliminary injunction on December 5. The district court

held a hearing on Delta’s motions for a TRO and preliminary

injunction on December 6. The district court denied both

motions on December 11. Delta filed its Notice of Emer-

gency Appeal the following day, December 12. Delta also

moved for an injunction pending appeal; we denied that

motion on December 13. However, in that same order, we

granted Delta’s motion for an expedited appeal. Moving on

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

2001.

Il.

The Railway Labor Act was passed in its initial form by

Congress in 1926, with the support of both the railroads and

the unions. Although a number of amendments have been

* Delta is a common carrier by air under the terms of the RLA, 45

U.S.C. § 181. ALPA is the legal representative for Delta’s pilots under

the terms of the RLA, 45 U.S.C. § 152 Third.

® Delta also named one hundred “John Does” and one hundred “Jane

Does” in its complaint.

introduced over the years, including extending the RLA to the

airline industry in 1936, the stated purposes have remained

constant. The first of the RLA’s five listed purposes is “[t]o

avoid any interruption to commerce or to the operation of any

carrier engaged therein.” 45 U.S.C. § 151a.° To accomplish

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

substantive duty upon “all carriers, their officers, agents and

employees to exert every reasonable effort to make and

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

to avoid any interruption to commerce or to the operation of

any carrier growing out of any dispute between the carrier

and the employees thereof.” 45 U.S.C. § 152 First. Because

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

the RLA, see Bhd. of R.R. Trainmen y. Jacksonville Terminal

Co., 394 U.S. 369, 377-78, 89 S. Ct. 1 109, 1115, 22 L. Ed. 2d

344 (1969), and because of the legislative history of the

provision,'' the Supreme Court has clarified that section 152

'° Section 151a, in full, reads:

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

commerce or to the operation of any carrier engaged therein; (2) to

forbid any limitation upon freedom of association among employees

or any denial, as a condition of employment or otherwise, of the

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

the complete independence of carriers and of employees in the

matter of self-organization to Carry out the purposes of [the RLA];

(4) to provide for the prompt and orderly settlement of all disputes

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

for the prompt and orderly settlement of all disputes growing out of

grievances or out of the interpretation or application of agreements

covering rates of pay, rules, or working conditions.

'' In the House hearings on enacting this section of the RLA, Donald

R. Richberg, counsel for the organized railway employees supporting the

bill, stated plainly that section 152 First imposed a binding legal

obligation on the parties. He stated, “it is [the parties’] legal duty to exert

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

abrogation of agreements or otherwise, in order to avoid any interruption

~ 8a

First imposes a legal duty enforceable by courts: “[W]Je think

it plain that [section 152 First] was intended to be more than a

mere statement of policy or exhortation to the parties; rather,

it was designed to be a legal obligation, enforceable by

whatever appropriate means might be developed on a case-

by-case basis.” Chicago & N.W. Ry. Co. v. United Transp.

Union, 402 U.S. 570, 577, 91 S. Ct. 1731, 1735, 29 L. Ed. 2d

187 (1971).

The RLA sets forth a detailed sequence of steps that

carriers and their employees (or their employees’

representative) must undertake in negotiating collective

bargaining agreements. The RLA intentionally provides for

slow movements by all parties during this negotiation and

bargaining process. As the Supreme Court has recognized,

the RLA “subjects all railway disputes to virtually endless

‘negotiation, mediation, voluntary § arbitration, and

conciliation.’ ”” Burlington N. R.R. Co. v. Bhd. of Mainten-

ance of Way Employees, 481 U.S. 429, 444, 107 S. Ct. 1841,

to commerce. In other words, the legal obligation is imposed, and as I

have previously stated, and I want to emphasize it, I believe that the

deliberate violation of that legal obligation could be prevented by court

compulsion.” In further explaining why the provision applied equally in

general terms to both parties in RLA cases, he explained:

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

the development of the obligations in industrial relations and the

law in regard thereto, there is more danger in attempting to write

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

the general duties and obligations into the law and letting the

enforcement of those duties and obligations develop through the

courts in the way in which the common law has developed in

England and America.

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

Committee on Interstate and Foreign Commerce, 69th Cong., Ist Sess., 91

(1926) (quoted in Chicago & N.W. Ry. Co. v. United Transp. Union, 402

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

1850, 95 L. Ed. 2d 38] (1987) (quoting Detroit & Toledo

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

90 S. Ct. 294, 298, 24 L. Ed. 2d 325 (1969)). The bargaining

procedures of the RLA are “purposely long and drawn out” in

the hope that reason will, in time, produce an agreement.

Bhd. of Ry. and §.S. Clerks v. Fla. E. Coast Ry. Co., 384 U.S.

238, 246, 86 S. Ct. 1420, 1424, 16 L. Ed. 2d 501 (1966).

During the long negotiating process, the RLA seeks to

protect the public, carriers, and unions alike by imposing a

legal duty upon carriers and unions to maintain the status quo

with respect to “rates of pay, rules, [and] working

conditions,” even when there is a disagreement about the

CBA. 45 U.S.C. §§ 155-56; Consol. Rail Corp. (“Conrail” )

v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 302-03, 109 S.

Ct. 2477, 2480, 105 L. Ed. 2d 250 (1989).'2 A failure by

either side to maintain the status quo during the bargaining

and mediation process may give rise to injunctive relief, even

without the customary showing of irreparable injury. Id.; see

also Detroit & Toledo Shore Line R.R. Co., 396 U.S. 142, 90

S. Ct. 294 (upholding a status quo injunction).

In cases where a carrier seeks injunctive relief against a

union, a court must look not only to the RLA, but also to the

Norris-LaGuardia Act (“NLGA”), 29 U.S.C. §§ 101-115, to

determine whether the court has jurisdiction. As a general

tule, the NLGA prohibits courts from issuing injunctive relief

in labor disputes.'* 29 U.S.C. §§ 101, 104: Int’l Ass’n of

? These status quo provisions of the RLA have been described by the

Court as “central to its design.” Detroit & Toledo Shore Line RR. Co. v.

United Transp. Union, 396 U.S. 142, 150, 90 S. Ct. 294, 299, 24 L. Ea. 2d

325 (1969).

A “labor dispute” under the NLGA “includes any controversy

concerning terms or conditions of employment, or concerning the

10a

Machinists v. Street, 367 U.S. 740, 772, 81 S. Ct. 1784, 1802,

6 L. Ed. 2d 1141 (1961) (“The [NLGA] expresses a basic

policy against the injunction of activities of labor unions.”).

The NLGA also generally prohibits a court from holding a

union responsible for illegal acts of the union members. 29

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

order shall be issued on account of any threat or unlawful act

excepting against the . . . organization making the threat or

committing the unlawful act or actually ratifying the same

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

organization shall be held responsible or liable . . . for the

unlawful acts of individual officers, members, or agents,

except upon clear proof of actual participation in, or actual

authorization of, such acts, or of ratification of such acts after

actual knowledge thereof.”). The NLGA also prescribes

procedural rules for civil proceedings in which an employer

seeks an injunction or TRO against its employees. For an

injunction, live testimony with opportunity for cross-

examination is normally required after proper notice; for a

TRO, though, sworn affidavits may suffice if the complainant

would suffer “substantial and irreparable injury” without the

TRO. 29 U.S.C. § 107. :

C..

The Supreme Court has stated that although the

prescriptions and proscriptions of the NLGA are clear, the

NLGA “cannot be read alone in matters dealing with railway

association or representation of persons in negotiating, fixing,

maintaining, changing, or seeking to arrange terms or conditions of

employment, regardless of whether or not the disputants stand in the

proximate relationship of employer and employee.” 29 U.S.C. § 113(c).

The Supreme Court has explicitly held that the NLGA covers the

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

Employees, 481 U.S. 429, 440, 107 S. Ct. 1841, 1848, 95 L. Ed. 2d 381

(1987), and therefore, by extension, the airlines.

lla

disputes.” Bhd. of R.R. Trainmen y. Chicago River & Ind.

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

(1957). Rather, “[t]here must be an accommodation of [the

NLGA] and the [RLA] so that the obvious purpose in the

enactment of each is preserved.” /d.'* The way to accommo-

date these two statutes, in most circumstances, is to determine

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

specific provisions of the [RLA] take precedence over the

more general provisions of the [NLGA].” /d. at 42, 77 S. Ct.

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

Executives’ Ass’n, 491 U.S. 490, 513, 109 S. Ct. 2584, 2598,

105 L. Ed. 2d 415 (1989).

When a specific provision of the RLA is implicated, “the

District Court has jurisdiction and power to issue necessary

injunctive orders [to enforce compliance with the require-

ments of the RLA] notwithstanding the provisions of the

[NLGA].” Bhd. of R.R. Trainmen v. Howard, 343 U.S. 768,

774, 72 S. Ct. 1022, 1025, 96 L. Ed. 1283 (1952); see also

Chicago & N.W. Ry. Co. v. United Transp. Union, 402 U.S.

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

U.S.C. § 152 First creates a legal obligation which a court

may enforce through injunction, notwithstanding section 4 of

the NLGA (29 U.S.C. § 104)); Chicago River, 353 U.S. at 42,

77 S. Ct. at 641 (holding that injunctive relief is appropriate

under the RLA when a specific provision is implicated,

= According to the Supreme Court, the two Acts have different

purposes. On the one hand, “[iJn adopting the Railway Labor Act,

Congress endeavored to bring about stable relationships between labor

and management in this most important national industry.” Chicago

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

between labor and management “had resulted in the aggregate being

serious enough to threaten disruption of transportation.” Jd. On the other

hand, “(t]he Norris-LaGuardia Act .. . was designed primarily to protect

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

to collective bargaining.” /d.

12a

notwithstanding the general provisions of the NLGA);

Virginia Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 549-52,

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

injunctive relief is proper under the RLA).'* Although the

NLGA usually deprives federal courts of jurisdiction in

general categories of labor disputes,'° federal courts retain

'S Appellee cites two circuit court cases purportedly on point regarding

the relationship or the RLA and the NLGA. See Fry v. Airline Pilots

Ass'n, Int'l, 88 F.3d 831, 841-42 (10th Cir. 1996) (holding that the union

could not be held liable for damages in state tort law claim for the alleged

harassment of pilots who had worked through a strike without a showing

of actual union authorization or ratification); Airline Pilots Ass'n Int'l v.

United Air Lines, 802 F. 2d 886, 905-06 (7th Cir. 1986) (stating in dicta

that the airline’s evidence of a “sickout,” using only statistical evidence

and without identifying even one pilot who had taken sick leave without

actually being sick, was insufficient to show a status quo violation at all,

and therefore “would generally end the discussion”). We find these cases

to be inapposite.

'© 29 U.S.C. § 104 provides:

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

restraining order or temporary or permanent injunction in any case

involving or growing out of any labor dispute to prohibit any person

or persons participating or interested in such dispute (as these terms

are herein defined) from doing, whether singly or in concert, auy of

the following acts:

(a) Ceasing or refusing to perform any work or to remain in any

relation of employment;

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

or of any employer organization, regardless of any such

undertaking or promise as is described in section 103 of this title;

participating or interested in such labor dispute, any strike or

unemployment benefits or insurance, or other moneys or things

of value;

(d) By all lawful means aiding any person participating or

interested in any labor dispute who is being proceeded against in,

13a

jurisdiction “to enjoin compliance with various mandates of

the [RLA].” Jnt’l Ass’n of Machinists v. Street, 367 U.S. 740,

772, 81 S. Ct. 1784, 1802, 6 L. Ed. 2d 1141 (1961).

However, this exception for the RLA is limited, and an

injunction usually may lie only if, in addition to violation of a

specific principle of the RLA, an injunction is the sole

practical, effective means of enforcing the Act. See

Burlington N. R.R. Co. v. Bhd. of Maintenance of Way

Employees, 481 U.S. 429, 446, 107 S. Ct. 1841, 185 Pe

Ed. 2d 381 (1987).

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

First, is a “specific provision” of the RLA and, moreover, is

central to the purpose and functioning of the RLA.

Therefore, the provision takes precedence over the more

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

procedural standards of the NLGA do not apply, but only that

the substance of the RLA is controlling. We therefore hold

that when this specific provision of the RLA is implicated and

there is no other effective way to enforce the RLA, the NLGA

or is prosecuting, any action or suit in any court of the United

States or of any State;

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

any labor dispute, whether by advertising, speaking, patrolling,

or by any other method not involving fraud or violence;

(f) Assembling peaceably to act or to organize to act in

promotion of their interests in a labor dispute;

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

the acts heretofore specified;

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

heretofore specified; and

(i) Advising, urging, or otherwise Causing or inducing without

fraud or violence the acts heretofore specified, regardless of any

such undertaking or promise as is described in section 103 of this

title.

l4a

does not prohibit a federal court from issuing an appropriate

injunction.

iil.

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

court had jurisdiction to hear the initial complaint: It did not

arise from a “minor dispute,” which would have rendered it

subject to mandatory and exclusive arbitration under the

RLA.'’ We reject ALPA’s contention that the CBA

“arguably” allows ail pilots to refuse to work overtime, when

'’ “Minor disputes” are disputes over grievances or the interpretation or

application of agreements under the RLA. Consol. Rail Corp. (“Conrail” )

v. Ry. Labor Executives’ Ass'n, 491 U.S. 299, 302-07, 109 S. Ct. 2477,

2480-83, 105 L. Ed. 2d 250 (1989). Exclusive jurisdiction over minor

disputes rests with the system adjustment board. See id. at 303-04 and

304 n.5, 109 S. Ct. at 2481 and 2481 n.5; Pyles v. United Air Lines, Inc.,

79 F.3d 1046, 1049-50 (11th Cir. 1996). A decision of the appropriate

system adjustment board with respect to an issue of interpretation or

application of a collective bargaining agreement is final and binding on

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

109 S. Ct at 2481.

“Major disputes,” by comparison, concern the formation or

modification of collective bargaining agreements. See Elgin, Joliet & E.

Ry. v. Burley, 325 U.S. 711, 723-24, 65 S. Ct. 1282, 1289-90, 89 L. Ed.

1886 (1945). Conduct that affects the status quo of a pre-existing

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

brought before a federal court rather than a system adjustment board. See

Conrail, 491 U.S. at 302-03, 109 S. Ct. at 2480.

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

permitted by the CBA, the resulting dispute is a minor dispute, because it

involves interpretation of the CBA. See id. at 307, 109 S. Ct. at 2483

(“Where an employer asserts a contractual right to take the contested

action, the ensuing dispute is minor if the action is arguably justified by

the terms of the parties’ [CBA]. Where, in contrast, the employer's

claims are frivolous or obviously insubstantial, the dispute is major.”).

15a

it is clear industry practice to structure flight schedules with

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

customary practice is an expectation that not all of the pilots

will choose to refrain from working overtime at the same

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

on 45 U.S.C. § 152 First, which imposes a statutory

obligation “to exert every reasonable effort to make and

maintain agreements.” This clear Statutory provision is at the

heart of the RLA and is clearly within the province of the

federal courts to enforce. When the public interest, com-

merce, and a clear statutory provision are implicated, we will

not shy away from holding the parties to their duties under

the RLA so as to avoid “any interruption to commerce.” 45

U.S.C. § 152 First.

This is an appeal from the denial of a preliminary

injunction. We have jurisdiction to hear this appeal pursuant

to 28 U.S.C. § 1292, which permits appeals from

interlocutory orders of district courts “granting, continuing,

modifying, refusing or dissolving injunctions.” We generally

review a denial of preliminary injunctive relief on an abuse of

discretion standard. Siegel v. LePore,___ F.3d __, No. 00-

15981 (11th Cir. Dec. 6, 2000).'* We note that in RLA cases

'* A district court may grant preliminary injunctive relief only if the

moving party shows four things:

(1) it has a substantial likelihood of success on the merits; (2)

irreparable injury will be suffered unless the injunction issues; (3)

the threatened injury to the movant outweighs whatever damage the

proposed injunction may cause the Opposing party; and (4) if issued,

the injunction would not be adverse to the public interest.

Siegel v. Lepore,__ F.3d __, No. 00-15981 (11th Cir. Dec. 6, 2000).

The district court, had it properly applied the iaw, would have found that

Delta met all four of these factors. The substantial likelihood of success

on the merits is discussed infra Part III.C. Irreparable injury surely would

16a

a Carrier need not show irreparable injury, a usual prerequisite

for obtaining an injunction, to enjoin a violation of the status

quo because of the strong public interest in enforcing the

RLA. See Conrail, 491 U.S. at 303, 109 S. Ct. at 2480.

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

a preliminary injunction, we would still review de novo the

district court’s application of the law. Haitian Refugee Ctr. v.

Baker, 949 F.2d 1109, 1110 (1ith Cir. 1991) (per curiam)

(“[I]f the trial court misapplies the law we will review and

correct the error without deference to that court’s

determination.”); see also Cuban American Bar Ass'n v.

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

district court misapplied the law governing the issues

presented in this case. Thus, we accord no deference to the

district court’s determinations in granting the preliminary

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

court misapplied thé law in the instant case by failing to

recognize the extent of ALPA’s duty under 45 U.S.C. § 152

First, we accord no deference to the district court’s

misapplication of the law.

The district court erred in failing to appreciate the depth

and seriousness of the duty to “make and maintain

agreements” in a way so as “to avoid any interruption to

commerce or to the operation of any carrier.” 45 U.S.C.

§ 152 First. In the instant case, our focus is on ALPA’s duty

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

goodwill, and losing revenues (although a showing of irreparable injury is

not actually required under Conrail, 491 U.S. at 303, 109 S. Ct. at 2480).

There is no threatened injury to the non-movant by the issuance of an

injunction. Finally, the injunction furthers the public interest by insuring

the continued operation of air travel on a major carrier.

17a

to maintain agreements to avoid interruption of commerce.'?

As the Supreme Court has stated, this language of the RLA

creates a substantive legal duty “enforceable by whatever

appropriate means might be developed on a case-by-case

basis.” Chicago & N.W. Ry. Co., 402 U.S. at 577, 91 S. Ct. at

1735. An injunction is an appropriate remedy to compel the

performance of this legal duty. See Nat’! Airlines, Inc. v. Int'l

Ass'n of Machinists & Aerospace Workers, 416 F.2d 998 (Sth

Cir. 1969) (approving of an injunction against the union to

issue directives to its members to restore the status quo when

union members were engaging in unlawful “wildcat”

strikes).”°

The district court made explicit findings that there was an

“ongoing concerted effort on the part of some Delta pilots to

refuse overtime work.” In its “Findings,” the district court

analyzed the number of canceled flights and pilots’ reduced

requests for overtime and found that “the statistics differ so

substantially that the difference can only be explained by the

efforts of an undisclosed number of pilots to undermine

contract negotiations, seeking leverage for a salary increase.”

The court did not rest solely on statistical evidence, though,

but looked to other evidence, including e-mails, “many of

’ This section of the RLA imposes the same duty upon employees. 45

U.S.C. § 152 First. The obvious implication from this is that Delta pilots

may not collectively disrupt Delta’s flight operations, in contravention of

the CBA, by instituting a disruption in Delta’s operations by way of a no-

overtime campaign. The district court found that such an unlawful no-

overtime campaign was occurring and properly applied this provision of

the RLA against the pilots. The district court did not enjoin individual

pilots, though, and thereby did not seek judicially to enforce this clear

provision of the RLA.

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

(en banc), this court adopted as binding precedent all of the decisions of

the former Fifth Circuit handed down prior to the close of business on

September 30, 1981.

18a

which rise to the level of intimidation and harassment.” The

court found that the “traveling public” and Delta are both

harmed by the pilots’ concerted activity:

This reduction in requests for overtime is causing harm

to Delta and the traveling public. Delta has lost millions

of dollars in revenues, rerouting expenses, extra

operating costs, and overnight hotel and meal vouchers.

Additionally, Delta has suffered loss in the form of good

will and traffic that is immeasurable. The public has

suffered loss in time and money from the delays and

cancellations which is also immeasurable.

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

injunction against ALPA and/or MEC. It based this refusal

on the fact that “[njeither the Union leadership [of ALPA] nor

the [MEC] supports this effort [by the pilots] and both have,

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

the MEC “counseled against” the efforts of the pilots, it is

equally clear that these union communiques were not

effective in suppressing the pilots no-overtime campaign.

The district court’s error came in its decision that it would

“not hold that a union has an affirmative duty to end or

prevent the unilateral unlawful activity of its members.” The

RLA imposes such a duty on the union in section 152 First,

and the district court should have enforced that duty. It is

possible, of course, that ALPA has in fact done all that it can

do in directing the pilots to cease their no-overtime campaign.

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

be true is that while ALPA has admonished its members at

Delta’s request, it has not made “every reasonable effort” as

required by statute. 45 U.S.C. § 152 First. ALPA is

statutorily bound to do everything possible to “maintain” the

CBA so that commerce is not in any way interrupted. We are

19a

not satisfied that ALPA has fulfilled this duty.”' Therefore,

the district court, on remand, should enjoin ALPA to take

specific steps aimed at stopping the pilots’ no-overtime

campaign and resuming normal operations of Delta’s

operations, including its overtime scheduling.”

It is possible, although unlikely, that ALPA has lost control

of its members and that the pilots are truly acting contrary to

ALPA’s wishes and directives. If this proves to be the case

(which would become evident if the district court’s injunction

against ALPA is ineffective at stopping the no-overtime

campaign), then National Airlines, Inc. v. International Ass’ n

of Machinists & Aerospace Workers, 416 F.2d 998 (Sth Cir.

1969), would apply. In National Airlines, the union had lost

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

and the members were conducting “wildcat strikes”; the

union was admittedly powerless to prevent this. In this

circumstance, the airline came to the court seeking

permission to terminate some of the employees if they failed

*! See Pan American World Airways, Inc. v. Indep. Union of Flight

Attendants, 93 Lab. Cas. 4 13,307 (S.D.N.Y. 1981) (holding that an

injunction should issue against the union where the evidence showed that

the union was encouraging “or at least failing to discourage” a sickout in

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

World Airlines, Inc. v. Int’ Ass’n of Machinists and Aerospace Workers,

87 L.R.R.M. (BNA) 2556, 75 Lab. Cas. q 10,312 (W.D. Mo. 1974)

(holding that the union had failed to meet its duty under the RLA, 45

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

employees but did not take affirmative “reasonable” efforts to end such

activities by the union members).

*? Because we agree with the district court that the individual pilots are

making a concerted, collective effort to reject overtime and institute an

unlawful disruption of Delta’s operations, we need not rule on whether

ALPA has ratified the pilots’ actions and is therefore directly responsible

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

sufficiently high that even if it has not sponsored or ratified the unlawful

job action by the pilots, it has a duty to end such unlawful action.

20a

to work under the terms of their CBA. (The airline

approached the court because the RLA would not have

permitted the airline’s self-help without judicial intervention.)

In National Airlines, the former Fifth Circuit allowed the

airline, faced with employees who were violating the CBA

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

action against the employees.

If ALPA cannot control the pilots, some of whom are

admittedly violating the CBA by advocating concerted action,

then Delta may return to the district court for additional relief.

The district court would, at that point, join all appropriate

parties as defendants (presumably sua sponte) and enjoin

them from engaging in continued activity in violation of the

CBA, under penalty of court sanction or other adverse

employment action.

Because the general procedural provisions of the NLGA

still apply to this action, even though the anti-injunction

portion of the NLGA does not, we must address the hearing

before the district court. ALPA complains that Delta did not

put on live testimony, with opportunity for cross-

examination, as required by the NLGA, 29 U.S.C. § 107.

While it is clear that section 107 requires live testimony in

order to obtain a temporary or permanent injunction in a labor

dispute, section 107 also provides alternate hearing

requirements for a complainant to obtain a TRO. A TRO

may be obtained to remedy “substantial and irreparable

injury” on the basis of testimony under oath sufficient to

justify the court’s issuance of the TRO. 29 U.S.C. § 107.

Reading the TRO and injunction provisions together, the

purpose of section 107 is not so much about requiring live

testimony, then, as it is about ensuring the presence of

reliable evidence before a court may enjoin parties to a labor

dispute.

2la

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

testimony, both sides presented sworn affidavits and a host of

other evidence and testimony.”’ This evidence was largely

undisputed—particularly as it related to the fact that the pilots

were undertaking concerted action. ALPA’s counsel

conceded at the hearing that injunctive relief would be proper

if Delta’s pilots were engaged in concerted activity that

violated the status quo; the district court did not hesitate to

make explicit its finding of such concerted activity by the

pilots in its dispositive order, and even in its closing

comments at the hearing itself. Delta’s evidence consisted of

(1) written documents reflecting the pilots’ overtime boycott

(mainly in the form of captured e-mail communications); (2)

union pronouncements and directives, which were

concededly authentic; (3) statements of union members

acknowledging the existence of the overtime boycott, which

were concededly genuine; and (4) statistical evidence of the

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

ALPA presented its own documentary evidence, as well as

relying upon some of the evidence presented by Delta. The

only material issue at the hearing was whether ALPA actively

sponsored or ratified the pilots’ no-overtime campaign.

Given that there was no dispute about the reliability of the

evidence, at least as to the concerted action by the pilots, we

believe the district court was entitled to rely upon such

evidence to make its determinations.24 See Ry. Express

Agency, Inc. v. Bhd. of Ry., Airline & S.S. Clerks, Freight

> Delta offered to put on its declarants as live witnesses, but the

district court decided to proceed without live testimony.

~** We do not pass judgment at this time as to whether there was reliable

and undisputed evidence about ALPA’s involvement in the no-overtime

campaign. There appears to be a genuine dispute over ALPA’s

involvement sufficient to necessitate live testimony as contemplated by

the NLGA, 29 U.S.C. § 107. 5

22a

Handlers, 437 F.2d 388, 395 (Sth Cir. 1971) (holding that

section 107 was not violated when the district court used only

briefs and affidavits to decide whether to issue an injunction;

live testimony with cross-examination was not required). The

purpose of section 107 is served if the evidence is inherently

reliable and there is no harm to the parties. An analogy to the

hearsay rule demonstrates the propriety of this holding.

Hearsay statements are generally excludable because they

suffer from a lack of reliability; reliability is generally

established through live testimony and cross-examination.

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

contravene the Confrontation Clause, even though they

permit the introduction of out-of-court statements, because

the statements are inherently reliable.

IV.

The district court properly determined that Delta’s pilots

were engaged in an unlawful no-overtime campaign.

However, the district court improperly interpreted the gravity

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

unlawful job action. Because there has been no showing that

ALPA lacks control over the pilots, reason dictates that

ALPA has not done enough to fulfill its statutorily mandated

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

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

appropriate injunctive relief directing ALPA to take further

steps to end the pilots’ no-overtime campaign. Further steps

may include issuing directives as drafted by the court and

threatening (or imposing) union sanctions for violations, as

permitted by ALPA’s constitution.” If ALPA complies with

5 ALPA’s constitution permits the union to discipline, fire, or expel

any member for a number of reasons, including “[a]cting in any manner to

circumvent, defeat or interfere with collective bargaining between the

Association and an employer or with existing collective bargaining

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

23a

the court’s orders and the no-overtime campaign continues,

Delta may return to the district court for injunctive relief

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

REVERSED and REMANDED, with instructions.

BARKETT, Circuit Judge, concurring specially, in which

MAGILL, Circuit Judge, joins:

I concur in the determination that under the law ALPA has

an affirmative duty to exert every reasonable effort to prevent

or stop the unilateral unlawful activity of its members and

that it has not fulfilled that duty. Accordingly, I agree that

this case should be remanded for the entry of an appropriate

injunction requiring ALPA to take all reasonable steps to do

so. However, any discussion of possible actions based on the

possibility that ALPA cannot control its membership is

premature.

24a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[Filed Feb 9, 2001]

No. 00-16472-BB

DELTA AIR LINES, INC.,

Plaintiff-Appellant,

versus

AIRLINE PILOTS ASSOCIATION INTERNATIONAL, et al.,

DELTA MASTER EXECUTIVE COUNSEL OF ALPA, CHARLES

GIAMBUSSON, MARK MOorE, JAMES ICENHOUR, et al.,

Defendants-Appellees.

On Appeal from the United States District Court

for the Northern District of Georgia

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion __, l Ith Cir., 19___,F.2d__)

Before: TJOFLAT, BARKETT and MAGILL,” Circuit Judges

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member of

this panel nor other Judge in regular active service on the

Court having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Petition(s) for Rehearing En

Banc are DENIED.

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

sitting by designation.

25a

Entered for the court:

/s/ Ilegible

UNITED STATES CIRCUIT JUDGE

26a

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

[Filed Jan 18, 2001]

No. 00-16472

District Court Docket No. 00-03207-CV-WBH-1

DELTA AIR LINES, INC.,

Plaintiff-Appellant,

versus

AIRLINE PILOTS ASSOCIATION INTERNATIONAL, et al.,

DELTA MASTER EXECUTIVE COUNSEL OF ALPA, CHARLES

GIAMBUSSON, MARK Moore, JAMES ICENHOUR, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern

District of Georgia

JUDGMENT

It is hereby ordered, adjudged, and decreed that the

attached opinion, included herein by reference, is entered as

the judgment of this Court.

Entered: January 18, 2001

For the Court: Thomas K. Kahn, Clerk

By: McCombs, Elaine

27a

APPENDIX C

[Filed Dec. 11, 2000]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Civil Action File

NO. 1:00-CV-3207-WBH

DELTA AIR LINES, INC.,

Plaintiff,

AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, et al.,

Defendants.

ORDER

Before the Court is Plaintiff, Delta Air Lines, Inc.’s

(“Delta”), Motion for a Temporary Restraining Order

(“TRO”) and Preliminary Injunction. Delta moves the Court

to enjoin and restrain the Air Line Pilots Association

(“ALPA”’), the individually named Defendants, and all others

acting in concert with them from engaging in job actions,

self-help or other violations of the status quo as defined and

prohibited by the Railway Labor Act (“RLA”), 45 U.S.C.

§§ 101 et seg. The alleged illegal activity includes a work

slowdown, overtime ban including concerted refusals to

accept premium time and/or special work assignments

(“overtime” work), and other actions intended to cause added

expense and/or disruption including increasing taxi-times and

fuel burns.'

' The Court notes here that the crux of Delta’s Motion is the allegation

regarding the refusal to accept voluntary overtime work. The only

28a

The Court, having considered the Verified Complaint,

Motion, declarations, and exhibits submitted in support of the

TRO and Preliminary Injunction, the Memorandum and

declarations submitted in opposition thereto, and having

heard extended oral argument in open court, both in support

of and in opposition to the granting of a TRO and Preliminary

Injunction, makes the following

FINDINGS:

(1) Plaintiff Delta is a common carrier-by-air engaged in

the transportation of freight and passengers in intrastate and

interstate commerce throughout the United States. Defendant

ALPA is a labor organization that is the exclusive bargaining

representative of Delta’s pilots. The individual Defendants

are officers, representatives or subunits of ALPA, or members

thereof.

(2) Delta and ALPA are parties to a collective bargaining

agreement which sets forth the terms and conditions of

employment for over 9,800 pilots employed by Delta. Delta

and ALPA commenced their negotiations for a new

agreement in September of 1999.

(3) Delta and ALPA have not yet exhausted the

“purposely long and drawn-out” bargaining procedures

mandated by the RLA. Bhd. of Ry. and S.S. Clerks v. Fla.

East Coast Ry. Co., 384 U.S. 238, 246, 86 S.Ct. 1420, 1424

evidence Delta has presented regarding the other alleged illegal activity

(i.e. work slowdown, increasing taxi-times and fuel burns), consists of

suggestions made by individual pilots via e-mail inciting their cohorts to

partake in this type of activity. Delta did not argue this point during the

Hearing nor in their pleadings. Nor did Delta present any evidence that

this type of “self-help” has actually occurred or that the Defendants were

partaking in this activity. For this reason, the Court will only consider the

present Motion as it pertains to the pilots’ refusal to request voluntary

overtime and DENY Delta’s Motion as it relates to other alleged

violations of the RLA.

29a

(1966); 45 U.S.C. §§ 101 et seg. The parties are currently

engaged in mediated bargaining and have jointly requested

mediation through the National Mediation Board.

(4) There has been a substantial reduction in overtime

requests since August of 2000. This reduction dramatically

increased throughout November and the first days of

December, 2000. The reduction has resulted in the

cancellation of hundreds of flights which has seriously

inconvenienced tens of thousands of passengers. When

compared to the requests for overtime during the same

months of 1999, the statistics differ so substantially that the

difference can only be explained by the efforts of an

undisclosed number of pilots to undermine contract

negotiations, seeking leverage for a salary increase.

(5) An undisclosed number of pilots are actively

encouraging, through e-mail and other means, the rejection of

overtime opportunities. This “no-overtime” campaign has

primarily been effectuated through e-mails, many of which

rise to the level of intimidation and harassment. These

communications include messages encouraging pilots not to

respond to phone calls from Delta regarding inverse

assignments. Not answering these calls effectively forecloses

Delta’ s ability to staff the flights that are normally staffed by

the pilots electing to fly overtime but are suddenly electing

not to.

(6) This reduction in requests for overtime is Causing

harm to Delta and the traveling public. Delta has lost millions

of dollars in revenues, rerouting expenses, extra operating

costs, and overnight hotel and meal vouchers. Additionally,

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

which is immeasurable. The public has suffered loss in time

and money from the delays and cancellations which is also

immeasurable.

30a

(7) Neither the Union leadership nor the present Delta

Master Executive Council (““MEC’’) of ALPA supports this

effort and both have, in fact, counseled against it. The Delta

MEC serves as ALPA’s coordinating council for Delta pilots.

Pilots at pilot bases are represented through ALPA Local

Executive Councils (“LECs”), whose elected representatives

constitute the Delta MEC.

ANALYSIS

A party seeking a preliminary injunction must establish the

following four factors:

(1) a substantial likelihood of success on the merits, (2) a

threat of irreparable injury, (3) that its own injury would

outweigh the injury to the nonmovant, and (4) that the

injunction would not thwart public interest. Haitian Refugee

Ctr., Inc. v. Baker, 949 F.2d 1109, 1110 (1 1th Cir. 1991).

I. Plaintiff's Motion

The Court will address Plaintiff's Motion by first

considering the allegations against ALPA and then those

against the individual defendants.

A. Injunctive Relief Against ALPA

Delta avers that ALPA has violated the RLA by

encouraging its members to partake in an overtime ban

including concerted refusals to accept premium time and/or

>The parties dispute whether or not the Norris-LaGuardia Act

(“NLGA”), 29 U.S.C. §§ 101 et seq., applies to the current Motion. More

specifically, Delta argues that the importance of the RLA in protecting the

traveling public overrides the NLGA. The application of the NLGA

would require clear and convincing evidence that ALPA actually

authorized, participated in or, after actual knowledge, ratified unlawful

conduct of its rank and file members as well as numerous other procedural

barriers before any type of injunctive relief could issue. For the purposes

of this Motion, the Court is satisfied that the moving party must, at the

very least, make a showing of the four factors delineated above.

3la

special (hereinafter collectively “overtime”) work assign-

ments. Delta argues that even if the evidence is not sufficient

to show direct involvement by ALPA, there is sufficient

evidence to show tacit approval by ALPA which is also a

violation of the status quo provision of the RLA.

1. The RLA

A fundamental purpose of the RLA is “to avoid any

interruption to commerce or to the operation of any carrier

therein.” 45 U.S.C. § 151(a)(1). Sections 5 and 6 of the RLA

prohibit all forms of union “self-help,” such as striking or

engaging in “slowdowns” or “sickouts,” until 30 days after

the long procedure mandated by the RLA has been exhausted.

Consol. Rail Corp. v. Ry. Executives’ Ass’n, 491 U.S. 299,

303, 109 S.Ct. 2477, 2480 (1989). The RLA procedures are

purposely long and drawn out in the hope that reason will, in

time, produce an agreement. Fla. East Coast Ry., 384 U.S. at

246. Section 2, First of the RLA states that parties to the

collective bargaining process must:

exert every reasonable effort to make and maintain

contracts concerning rates of pay, rules, and working

conditions, and to settle all disputes, whether arising out

of the application of such contracts or otherwise, in order

to avoid any interruption to commerce or to the

operation of any carrier growing out of any dispute

between the carrier and the employees thereof.

45 U.S.C. § 152. The Supreme Court has stated that while

these procedures are going on, the parties are to “maintain the

status quo.” ConRail, 491 U.S. at 302.

2. Evidence Presented

As proof of its contentions, Delta has presented the

following evidence: (1) the overwhelming _ statistics

confirming the drop in overtime requests, (2) an August 22,

2000, resolution from Local Council 47 of ALPA and a letter

32a

from the Chairman of that branch dated October 11, 2000, (3)

a letter from Mr. Giambusso, (4) an informative flyer

produced by ALPA for its members regarding overtime

flying, (5) e-mails and other communications from individual

pilots.

Statistical evidence

Delta has submitted an overwhelming amount of statistical

evidence that confirms that Delta pilots have dramatically

decreased the number of requests they have submitted for

overtime flights. For example, the evidence presented shows

that while pilots had an average of 2,053 daily requests for

overtime flights in November of 1999, they only averaged

1,276 in November of this year. In the first three days of

December of 1999 they averaged 1,678 requests while only

averaging 503 during those same days in December of 2000.

The evidence also confirms that Delta has had to cancel a

great deal of flights during this same time period. Delta

canceled a total of 10 flights for the month of November 1999

while it canceled 375 flights during November of 2000. In

the first three days of December of this year, Delta has

already had to cancel 386 flights compared to the first three

days of December 1999, when there were no cancellations.°

As stated in the Findings listed above, the Court finds that

the statistical evidence presented illustrates a deviation that is

so substantial, that it can only be explained by the efforts of

an undisclosed number of pilots to undermine contract

negotiations, seeking leverage for a salary increase and finds

this to be credidle evidence that an undisclosed number of

pilots are engaging in an effort not to accept overtime work.

> ALPA did point out that the first three days of December of 1999

were weekdays while the same dates of 2000 fell on the weekend which

may account for some of the statistical deviation.

33a

Local 47 minutes and letter

Delta presented as evidence the minutes from an August

22, 2000, meeting of Council 047, the Dallas-Fort Worth

branch of ALPA, that includes a resolution resolving

“that the pilots of Council 47 endorse a green-slip-with-

conflict option and/or no overtime flying. This will give

all pilots the opportunity for a period of relief from the

excessive amounts that we have been doing for far too

long” (emphasis in original).

Delta avers that this is direct evidence of ALPA’s

involvement in and encouragement of the overtime ban.

Delta also presents a letter dated October 11, 2000, from

Daryle D. McGinnis, the Chairman for Council 047, sent to

the pilots of that area that explains why the ALPA leadership

is not partaking in an overtime ban. Delta presents the letter

as evidence of what it views as ALPA’s role in the current

decline in overtime work: ALPA condemning such action

publicly while privately encouraging pilots to participate. The

letter states that there is no ALPA sponsored ban on overtime:

“there is no MEC associated no-overtime flying . . .

program.” The letter explains that there is no ALPA sponsor-

ed ban because it is violative of the RLA. The letter

emphasizes, however, that “there is of course a grassroots

effort at... DFW,” and suggests that the grassroots effort is

legal as long as the union avoids any association with it. The

letter recognizes that the August 22, 2000, resolution could be

viewed as ALPA action in violation of the RLA and is careful

to point out that the resolution

was not one authorizing or establishing any . . . program

but rather one telling the MEC that DFW wanted to do

such a program. There is nothing illegal about wanting

to do. That is hugely different from establishing a

program. ‘Endorsing’ is not establishing, nor could any

Local Council establish a program opposite direction

anyway. (emphasis in original)

34a

Letter from Mr. Giambusso and flyer from ALPA

Delta places a great amount of weight on a letter to ALPA

members dated August 25, 2000, from Mr. Giambusso,

Chairman of the Delta MEC. Delta argues that he uses “code

words” to incite the overtime ban. Delta alleges that the

Chairman of ALPA, by informing pilots of the manner in

which they legally decline overtime work, encourages ALPA

members to refuse to fly overtime. The letter, in its entirety

states:

Dear Fellow Pilot: Over the last year the Delta pilots

have demonstrated their commitment and resolve to your

union and our contract negotiation goals over and over

again. Each time I have asked you to express your

resolve to management, you have done so—and

management has heard you. The May 2, 2000,

informational picketing was a great success and I expect

the upcoming rally on September 8 will be an even

greater success. These efforts show how effective and

powerful unity can be.

Earlier this year, your local representative unanimous-

ly directed a recommendation to fly maximum overtime

at premium rates. Once again, you came through. Lately,

there has been some confusion resulting from individual

communications. These are expressions of a lack of

patience that seems to be growing within the pilot group.

So there is no confusion, I have enclosed a copy of your

MEC’s unanimous direction on the subject of overtime

flying. Until changed, this is what your union is asking

you to do. Your continued solidarity and support is the

most powerful and effective tool your leadership and

Negotiating Committee can have to achieve the goals

you set.

Delta characterizes this “disclaimer” and others like it as

transparent and false. Delta argues that this letter and other

35a

efforts on the part of ALPA pay lip service to the mandates of

the RLA all the while it is sponsoring the ban. Delta claims

ALPA is masking its participation in the overtime ban by

describing it as “individual choices” or “grassroots” efforts.

Delta also points to the “Contract Awareness” flyer attached

to Mr. Giambusso’s letter. This flyer, Delta contends, is a

way for ALPA to say “an overtime ban is illegal” out of one

side of its mouth while winking and saying “here is how to

effectuate a ban if you choose to do so on your own

initiative,” out the other. The “Contract Awareness” flyer

purports to educate the pilots about overtime flying and

overtime pay.’ The flyer explains the rules, regulations and

procedures governing overtime flying and _ inverse

assignments and recommends as follows:

overtime flying is an individual decision, and no pilot

Should feel compelled to fly above the cap unless he or

she desires to do so. Whether volunteering to fly

overtime or being inversely assigned, every pilot should

be aware of his or her absolute obligation not to fly

when fatigue would prevent safe operation. . . . Your

elected representatives recommend that a pilot who

desires to work overtime does so for overtime pay, as

most other Delta employees do.

The recommendation goes on to explain the pay rates

associated with the different variations of overtime flying and

Suggests that pilots take advantage of pay above regular rates.

Delta argues that this is an example of ALPA saying one

thing while encouraging another. Delta claims that the flyer,

using phrases such as “individual choice” and making a point

to explain the legal manner in which pilots can avoid

overtime work allows ALPA to publicly disapprove of the

overtime ban while informing its members how to legally

* Rather than reproducing the flyer in the body of this Order; the Court

has attached the flyer in its entirety.

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participate. Delta goes even further to argue that this

informative flyer, when coupled with its timing and the

numerous private communications currently being distributed

actually acts to encourage the overtime ban.

Communications from individual pilots

Delta has presented numerous e-mails and _ other

communications from individual pilots that directly

encourage involvement in the overtime ban. The e-mails are

explicit as to why the overtime ban is encouraged and how to

effectuate it which includes ways to ensure that pilots are not

available when Delta attempts to inversely assign flights to

them. For example, one e-mail from Edwin Havrilla, a

former MEC member, dated November 6, 2000, strongly

encourages pilots to stop flying overtime immediately

because of the timing of the ongoing negotiations

(corresponding with Delta’s counter proposal and preceding

the filing for mediation) and the upcoming holidays, so that

their actions will have the most impact.

As stated in the Findings listed above, the Court finds from

this evidence that an undisclosed number of pilots are

actively encouraging, through e-mail and other means, the

rejection of overtime opportunities. This activity includes

encouraging pilots not to respond to phone calls from Delta

regarding inverse assignments.

3. Application of the RLA to the Present Case

(i) direct evidence indicating involvement by

ALPA

There is no question that there is an ongoing concerted effort

on the part of some Delta pilots to refuse overtime work and

this Court recognizes that a campaign to ban overtime work or

a concerted refusal to work overtime actively sponsored or

promoted by a union may violate the RLA. See ABX Air, Inc.

v. Airline Professional Ass'n of the Int'l Bhd. of Teamsters,

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C-1-97-812 (W.D. Ohio Nov. 12, 1999). A careful review of

the evidence presented, however, reveals that there is

insufficient evidence to find that ALPA was directly involved

in the overtime ban complained of herein. The only evidence

of ALPA’s direct involvement comes from the August 22,

2000, DFW Council of ALPA Resolution, resolving to ban all

overtime work and a letter from the Chairman of that council

acknowledging that there was an ongoing grassroots effort to

ban overtime work. That resolution was explained in the letter

from the Chairman of that Council to its members dated

October 11, 2000. The letter explained that the resolution was

merely expressing the desires of the Council 47 members, and

was not the official position of the chapter. The letter also

recognized that there was an ongoing grassroots campaign

and speculated that it was “probably legal,” but did not in any

way promote it and, in fact, did nothing but disavow any

official involvement in any such campaign. This evidence is

insufficient to make a legal finding that ALPA was directly

involved in any movement to ban overtime work. The finding

that the evidence is insufficient to connect ALPA to the ban

on overtime work is bolstered by the fact that the evidence

indicates the ban on the overtime did not really start to take

effect until November and December of 2000. It does not

logically follow that if this resolution from August incited a

ban on overtime work among ALPA members, as Delta

would have this Court believe, that the ban did not take effect

until November and December, at least three months later,

Furthermore, the Court finds that the cases cited by Delta in

support of the propositions that a union can be in violation of

RLA because of the concerted effort of its members to

exercise their right not to work overtime can be distinguished

in that they all had evidence indicating direct involvement on

the part of the union and some are further distinguished

because they involved situations where the defendant unions

refused to take any actions disavowing or discouraging the

illegal action. See, e.g., ABX Air, Inc., v. IBT, C-1-97-812

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(W.D. Ohio Nov. 12, 1999) (“refusal of defendant’s members

[pilots] to bid on open lines of flight [i.e., refusal to work

‘voluntary’ overtime] constituted an illegal strike” under the

RLA); Metro-North Commuter R.R. v. Local 808, Teamsters,

1988 U.S. Dist. LEXIS 10648, 114 Lab. Cas. (CCH) ¥ 11,948

(S.D.N.Y. Sept. 22, 1988) (concerted ban on overtime

enjoined); National R.R. Passenger Corp. v. BLE, 1989 U.S.

Dist. LEXIS 11804, 113 Lab. Cas. (CCH) § 11,766 (D.D.C.

Oct. 6, 1989) (engineers who refuse to perform training in

violation of established practice are ordered to cease engaging

in self-help before exhaustion of major dispute procedures);

Texas Int'l Airlines, Inc. v. ALPA, 518 F.Supp. 203 (S.D. Tex.

1981) (injunction and contempt proceeding where union

engaged in slowdown, excessive fuel burn, and sickout); Pan

Am. World Airways, Inc. v. LUFA, 1981 U.S. Dist. LEXIS

13669, 93 Lab. Cas. (CCH) ¥ 13,307 (S.D.N.Y. Jul. 20, 1981)

(injunction against slowdown); Trans World Airlines, Inc. v.

IAM, 75 Lab. Cas. (CCH) § 10,312 (W.D. Mo. 1974) (slow-

down activity); Pan Am. World Airways, Inc. v. TWU, 1969

U.S. Dist. LEXIS 10864, 60 Lab. Cas. (CCH) ¥ 10,310

(S.D.N.Y. Aug. 8, 1969) (ten minute work stoppage, followed

by slowdown, enjoined); Long Island R.R. Co. v. BLE, 290

F.Supp. 100 (E.D.N.Y. 1968) (spurious safety protest

enjoined); United Air Lines v. IAM, 1963 U.S. Dist. LEXIS

7156, 54 L.R.R.M. (BNA) 2154 (N.D. Ill. Sept. 5, 1963)

(concerted refusal to work overtime, slowdowns and sit-ins

violated duty to exert every reasonable effort to settle all

disputes and are enjoined).

(ii) indirect evidence indicating involvement by ALPA

The Court finds that the evidence presented that indirectly

demonstrates ALPA’s complicity in the overtime ban is too

attenuated. Delta would have this Court infer that ALPA is

encouraging the ban on overtime work when the evidence

demonstrates that ALPA is actively informing its members

that it is not involved, actively discouraging the ban and

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condemning the pilot harassment, while at the same time

informing its members of the legal boundaries and

ramifications of their actions as well as encouraging them to

respect their fellow pilots’ choices. The Court finds that Delta

is reading too much into the evidence it has presented and

finds that this evidence does not support a finding that ALPA

was or is involved in the overtime ban. This finding is

Supported by a letter from Mr. Dave Bushy, Senior Vice

President for Flight Operations of Delta, to Mr. Giambusso,

dated November 28, 2000, reporting the high number of flight

cancellations during November and thanking him for the

“support via code-a-phone and printed material on curbing

instances of harassment.” Additionally, ALPA has presented

numerous e-mails and other communications sent by ALPA

condemning the overtime ban, condemning pilots harassing

other pilots, and urging ALPA members to respect the

individual pilot’s right to choose whether or not to work.

(Giambusso Decl. § 10).

Therefore, although the Court agrees with Delta that the

law would be violated if a union is shown to be involved in a

concerted effort to ban overtime work, the Court does not

find there to be sufficient evidence to link the overtime ban to

ALPA.

(i) ALPA’S liability aside from evidence indicating

involvement

Delta next makes the argument that whether or not ALPA

is found to be involved in the overtime ban, it has the

affirmative duty to end the unlawful activity by its members.

Delta cites several of the cases referenced above in support of

this proposition: Trans World Airlines, Inc. v. IAM, 75 Lab.

Cas. (CCH) § 10,312 (W.D. Mo. 1974) (slowdown activity);

Pan Am. World Airways, Inc. v. IUFA, 1981 U.S. Dist.

LEXIS 13669, 93 Lab. Cas. (CCH) 4 13,307 (S.D.N.Y. Jul.

20, 1981) (injunction against slowdown). As discussed above,

these cases can be distinguished based on the fact that they

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both had evidence indicating direct involvement on the part

of the union and they often involved situations where the

defendant unions refused to take any actions disavowing or

discouraging the illegal action. These distinguishing

characteristics are even more significant here where Delta is

asking the Court to order the union to take affirmative action

to ensure that their members are not acting in violation of the

law, when there has been no finding of union involvement

and there is evidence indicating that ALPA has disavowed

and discouraged the activity. This Court will not hold a union

liable for the unilateral unlawful actions of its members

without evidence indicating the union’s involvement as was

found in the cases cited by Delta and distinguished by this

Court (see supra, § (I)(A)(3)(i)). Nor will the Court hold that

a union has an affirmative duty to end or prevent the

unilateral unlawful activity of its members, especially when

there is no finding of involvement on the part of the union

and there is evidence that the union has acted to deter

unlawful union activity. The facts in this case indicate that

ALPA has taken affirmative action not only to inform its

members of the possible illegality of their action, but has

taken action to discourage unlawful activity.

B. Injunctive Relief Against the Individual Defendants

Delta avers that the individual Defendants have violated

the RLA by engaging in a campaign (1) refusing to request

overtime for the sole reason of increasing their bargaining

power in the ongoing negotiations, (2) encouraging fellow

pilots to partake in the overtime ban, and (3) harassing those

pilots that do choose to fly overtime. The Court has found

that there is an ongoing concerted effort on the part of Delta

pilots to refuse overtime work.

The RLA, as described above (see supra, § (I)(A)(1)),

applies to the union as well as its employees. The RLA states:

“It shall be the duty of all carriers, their officers, agents, and

employees to exert every reasonable effort to make and

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maintain agreements . . .” 45 U.S.C. § 152. To this extent, it

is clearly a violation of the RLA for the individual pilots to

act in such a way so as to be involved in and promote such

unlawful activity.

The Court, however, is at a loss, however, as to whom it is

to enjoin. Delta has named 49 individual defendants but has

not in any form or fashion proven with any specificity the

roles these individuals played in the overtime ban. The Court

is able to match only one of the individual Defendants to any

of the evidence of unlawful activity. Without any specific

allegations regarding unlawful activity or evidence

implicating the individual Defendants, the Court is unable to

enjoin them even though it has found evidence of illegal

activity.”

CONCLUSION

For the foregoing reasons, the Court DENIES the Motion

for a TRO and Motion for a Preliminary Injunction. Nothing

in this Order should be read to preclude Delta from

reasserting a similar claim for relief should circumstances

change such that would merit reconsideration.® Nor should

this Order be read to absolve ALPA membership from

liability as this Court has found that there is evidence of

activity that is in violation of the RLA even though such

activity has not, as yet, been sufficiently connected to the

named Defendants.

> The Court recognizes that crafting an injunction that prohibits activity

found to be violative of the RLA while at the same time recognizing the

pilots’ rights to choose to work overtime or not and the pilots’ First

Amendment Rights is a delicate proposition.

. Obviously the findings in this case are circumscribed by the evidence

presented, all in the form of declarations and exhibits. The Court has

considered this evidence over the objections of the Defendants who insist

that only live testimony should be considered, according to the Norris-

LaGuardia Act. 29 U.S.C. §§ 101 et seq.

42a

It is so ORDERED this 1 1th day of December, 2000.

/s/ Willis B. Hunt, Jr.

WILLIS B. HUNT, JR.

Judge, United States District Court

EI SSIRT

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Contract Awareness alpa

2000

Optimizing Our Contract Through Education

#13 Overtime Flying and Overtime Pay

Many new pilots have been added to the seniority list since

we last reviewed the various options the Delta Pilots’

Working Agreement (PWA) provides for overtime flying. In

this season of understaffed categories and 82-hour caps, all

pilots should understand the following information.

What Is “Overtime Flying” ?: The PWA allows the company

to set the monthly cap between 75 and 82 hours. It requires

(nat regular lines be constructed so as not to exceed the cap. It

also requires that Scheduling not assign a reserve any flying

once he has reached the cap. Any pilot may submit a request

to fly additional open time. The type of request submitted

determines the treatment of pay and credit time for that

flying.

White Slip: A pilot projected below the cap for his or her

category may submit a request to fly open time at single pay

and credit. The pilot will not be paid premium rates or above

the cap in that month. Credit earned in excess of the cap must

be either deposited in the bank, or carried forward to the next

month as a bow wave. Actual payment for W/S overtime

flying will be deferred until such time as the pilot does not fill

up in a month. (See When Scheduling Calls, p. 19, for a full

discussion.)

Green Slip (Regular Line): Any regular pilot may submit a

request to fly open time on a G/S. If Scheduling does not

have sufficient W/S requests or reserves to fly all open time,

G/S volunteers will be awarded flying prior to the inverse

assignment of non-volunteers. Once a pilot has accumulated

credit equal to the cap, all G/S flying will be at double pay, no

credit. Flying on a G/S can result in a pilot’s receiving pay

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above the cap in that month, and does not result in any time

being available for deposit in the bank, or carrying forward in

a bow wave. (See When Scheduling Calls, p. 22, for a full

discussion.)

Green Slip (Reserve Line): The PWA provides for a reserve

pilot to submit a G/S for flying on X-days and/or flying after

he has reached the cap. However, because of recent changes

to FAR Reserve Rest rules, flying on X-days is often not

possible for a reserve due to 24-in-7 conflicts with future on-

call days. (See When Scheduling Calls, p. 22, for a full

discussion.)

Inverse Assignment: After all reserves and volunteers have

been awarded flying, Scheduling will attempt to cover any

remaining open time by assigning pilots on their off days,

beginning with the most junior pilot available. This method of

covering open time is entirely dependent upon the schedulers

being able to notify the pilot of his assignment and receive

acknowledgment. Pay for I/A flying is similar to G/S pay.

(See When Scheduling Calls, p. 22, for a full discussion.)

Green Slip with Conflict: After Scheduling has exhausted all

other volunteers and those pilots who may be inversely

assigned without a trip conflict, a pilot may be awarded a

GSWC that causes him or her to drop flying already on his or

her line in order to fly the open time that Scheduling needs to

cover. The pilot will be paid for both trips and receive the pay

for the GSWC rotation as single pay, no credit, above the cap

in that month. (See When Scheduling Calls, p. 22, for a full

discussion.)

Recommendations

First and foremost, your elected local representatives wish to

stress that under the PWA, overtime flying is an individual

decision, and no pilot should feel compelled to fly above the

cap unless he or she desires to do so. Whether volunteering to

fly overtime or being inversely assigned, every pilot should

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be aware of his or her absolute obligation not to fly when

fatigue would prevent a safe operation. This is especially

important to remember in the event of an I/A received via

ACARS or in the jetway upon completion of your scheduled

rotation.

Your elected representatives recommend that a pilot who

desires to work overtime does so for overtime pay, as most

other Delta employees do. A green slip will earn premium

pay for overtime flying. Flying overtime via a white slip will

result in pay at straight rates, and no additional pay, over the

cap. When possible, however, it is wise to white slip to or

near the cap so as to take full advantage of the double pay; no

credit for all-green-slip flying. Any part of the G/S flying that

goes toward filling a pilot to the cap is paid just as a white

slip is paid.

46a

APPENDIX D

STATUTES

Section 2 First of the Railway Labor Act (“RLA”’)

provides:

It shall be the duty of all carriers, their officers,

agents, and employees to exert every reasonable effort to

make and maintain agreements concerning rates of pay,

rules, and working conditions, and to settle all disputes,

whether arising out of the application of such

agreements or otherwise, in order to avoid any

interruption to commerce or to the operation of any

carrier growing out of any dispute between the carrier

and the employees thereof.

45 U.S.C. § 152 First.

Section 7 of the Norris-LaGuardia Act (“NLGA”) provides:

No court of the United States shall have jurisdiction to

issue a temporary or permanent injunction in any case

involving or growing out of a labor dispute, as defined in

this chapter, except after hearing the testimony of

witnesses in open court (with opportunity for cross-

examination) in support of the allegations of a complaint

made under oath, and testimony in opposition thereto, if

offered, and except after findings of fact by the court, to

- the effect—

(a) That unlawful acts have been threatened and

will be committed unless restrained or have been

committed and will be continued unless restrained, but

no injunction or temporary restraining order shall be

issued on account of any threat or unlawful act

excepting against the person or persons, association,

or organization making the threat or committing the

unlawful act or actually authorizing or ratifying the

same after actual knowledge thereof;

47a

(b) That substantial and irreparable injury to

complainant’s property will follow;

injury will be inflicted upon complainant by the denial

of relief than will be inflicted upon defendants by the

granting of relief;

(d) That complainant has no adequate remedy at

law; and

(e) That the public officers charged with the duty to

protect complainant’s property are unable or unwilling

to furnish adequate protection.

Such hearing shall be held after due and personal

notice thereof has been given, in such manner as the

court shall direct, to all known persons against whom

relief is sought, and also to the chief of those public

officials of the county and city within which the

unlawful acts have been threatened or committed

charged with the duty to protect complainant’s

property: Provided, however, That if a complainant

Shall also allege that, unless a temporary restraining .

order shall be issued without notice, a substantial and

irreparable injury to complainant’s property will be

unavoidable, such a temporary restraining order may

be issued upon testimony under oath, sufficient, if

sustained, to justify the court in issuing a temporary

injunction upon a hearing after notice. Such a

temporary restraining order shall be effective for no

longer than five days and shall become void at the

expiration of said five days. No temporary restraining

order or temporary injunction shall be issued except

on condition that complainant shall first file an

undertaking with adequate security in an amount to be

fixed by the court sufficient to recompense those

enjoined for any loss, expense, or damage caused by

48a

the improvident or erroneous issuance of such order or

injunction, including all reasonable costs (together

with a reasonable attorney’s fee) and expense of

defense against the order or against the granting of

any injunctive relief sought in the same proceeding

and subsequently denied by the court.

The undertaking mentioned in this section shall be

understood to signify an agreement entered into by the

complainant and the surety upon which a decree may

be rendered in the same suit or proceeding against

said complainant and surety, upon a hearing to assess

damages of which hearing complainant and surety

shall have reasonable notice, the said complainant and

surety submitting themselves to the jurisdiction of the

court for that purpose. But nothing in this section

contained shall deprive any party having a claim or

cause of action under or upon such undertaking from

electing to pursue his ordinary remedy by suit at law

or in equity.

29 U.S.C. § 107.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.