Petition for Writ of Certiorari — International Ass'n of Machinists Workers v. United Airlines, Inc.

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IN THE

Supreme Court of the Anited States

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS, et al.,

Petitioners,

Vv.

UNITED AIR LINES, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

ALLISON BECK

General Counsel, IAMAW

DAVID NEIGUS

Associate General Counsel,

IAMAW

9000 Machinists Place

Upper Marlboro, MD 20772

JEREMIAH A. COLLINS

PAGE KENNEDY

LAURENCE GOLD

(Counsel of Record)

BREDHOFF & KAISER, P.L.L.C.

805 Fifteenth Street, N. W.

Suite 1000

Washington, D.C. 20005

(202) 842-2600

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

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QUESTION PRESENTED

In Chicago & N.W. Ry. Co. v. Transportation Union, 402

U.S. 570, 582-83 (1987), this Court held that the “appropriate

accommodation” of the Railway Labor Act and the Norris-

LaGuardia Act is to allow issuance of an injunction against a

union in a RLA § 2 First case only where such an injunction

is the “only practical, effective means of enforcing the duty to

exert every reasonable effort to make and maintain

agreements.” The question in this case is:

Whether in an RLA § 2 First “concerted job action/work

slowdown” case, the standard for the issuance of an

injunction against the union is the surface requirement that

the injunction be the “‘sole effective means’ of enforcing [the

Union’s] duties under the status quo provisions of the RLA,”

or the more searching requirement that the injunction be the

“only practical, effective means” of remedying the § 2 First

violation in question—here a work slowdown by employees

who were not acting at the union’s behest and were not

subject to the union’s control.

(i)

PARTIES TO THE PROCEEDING

In addition to petitioner, International Association of

Machinists and Aerospace Workers, a defendant in the

District Court and an appellee in the Court of Appeals and

respondent United Air Lines, Inc., the plaintiff in the District

Court and the appellant in the Court of Appeals, all the

following—who are petitioners in this Court and were

defendants in the District Court and appellees in the Court of

Appeals—are parties to this proceeding

District Lodge 141-M, [AMAW

Air Transport Employees Local Lodge 1781, [AMAW

IAMAW Rocky Mountain Aircraft Lodge 1886

IAMAW Hoosier Air Transport Local Lodge 2294

IAMAW Local Lodge 1487

Scotty Ford

Richard D. Johnsen

Ronald W. Shepard, Jr.

Timothy W. Gillespie

Ben L. Nunnally,

Armand R. Fontaine

David B. Beeler

Raymond G. Perry

Bill Donovan

Bill Freiberger

Bob Amundsen

Bob Fisher

Brian Connors

Carl Reichow

Charles Hauser

Chuck Brinkkman

Chuck Sabins

Dave Mitchell

Dominic Gulley

Don Davies

Donna Uhl

Doug Walsh

Duke Snyder

George Woods

Glen Schulteis

Harry Hargis

J. R. Heier

Jesse Ikei

James Keating

Joe Flannery

Jose Luis Flores

Joseph Frisina

Judy Macho Barnett

Ken Anderson

Larry D. Nunan

Lou Allen

Mike Fitzpatrick

Mike Hoolihan

Mike M. Beyer

Mike Millard

Mike Nardo

Ralph Kropp

Ray Horgan

Rich Bourque

Rich Johnsen

Rich Petrovsky

Rich Wangsness

Rick Eicholtz

Rick Strezishar

Roberto E. Mendez

Ronald R. Brown

Scott Brown

Steve Adams

Steve Ebert

Tim Steinway

PARTIES TO THE PROCEEDING—Continued

Tom Reardon

Tom Regan

Tony Giammarco

Tony Sipes

Veronica Stevenson

Vic Osuna

Michael Sanft

Richard Block

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

CASES Page

Burlington No. R.Co. v. Maintenance Employees,

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Chicago & N.W. Ry. Co. v. Transportation

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Shore Line v. Transportation Union, 396 U.S.

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Machinists v. Street, 367 U.S. 740 (1961) .........0+. 16

Railroad Trainmen v. Terminal Co., 394 U.S.

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PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully request that a writ of certiorari

issue to review the decision and judgment of the United

States Court of Appeals for the Seventh Circuit in United Air

Lines, Inc. v. International Association of Machinists and

Aerospace Workers, AFL-CIO, et al., 243 F.3d 349 (7th Cir.

No. 00-4220).

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Seventh Circuit is reported at 243 F.3d 349, and is reproduced

in the Appendix to this Petition (“Pet. App.”) at la. The

transcript of the unreported oral order of the United States

District Court for the Northern District of Illinois, Eastern

Division, denying United Air Lines’ motion for a preliminary

injunction, is reproduced at Pet. App. 34a.

JURISDICTION

The decision of the United States Court of Appeals for the

Seventh Circuit was issued March 14, 2001. A timely

petition for rehearing and suggestion for rehearing en banc

was denied by the Court of Appeals on April 11, 2000.

Pet. App. 4la. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254.

STATUTES INVOLVED

Section 2 First of the Railway Labor Act, 45 U.S.C. §152

First, provides in pertinent part:

It shali 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.

Section 4(a) of the Norris-LaGuardia Act, 29 U.S.C.

§104(a), provides in pertinent part as follows:

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 . . . from

doing. whether singly or in concert, any of the following

acts:

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

remain in any relation of employment.

STATEMENT OF THE CASE

Petitioner International Association of Machinists and

Aerospace Workers (“IAM” or “the Union’) is the certified

exclusive bargaining representative for the class and craft of

mechanics and related workers employed by respondent

United Air Lines (“United” or “the Airline”). Pet. App. 2a.

In 1994, IAM and United consummated a six-year

collective bargaining agreement (“CBA”) that, by its terms,

could not be amended until July 12, 2000. Pet. App. 2a.

Five and a half years into the 1994 CBA’s term, in

December of 1999, IAM and United began negotiations on

amendments to the CBA. The parties, however, were unable

to reach agreement by the July 12, 2000 amendable date, and

continued to negotiate past that date. Pet. App. 2a. Then, in

September of 2000, the parties applied to the National

Mediation Board (“NMB”) for mediation pursuant to § 5 of

the Railway Labor Act (“RLA”), 45 U.S.C. § 155. Id. After

contentious negotiations through the mediation process failed

to result in agreement, on November 7, 2000, IAM

announced that the Union was seeking a release from

mediation that would begin the 30-day “cooling-off” period

under the RLA, after which IAM would be free to strike.

See RLA § 5 First.

Three days after IAM sought a release from the NMB,

United complained in a November 10, 2000 letter to the

Union, that for several months IAM had engaged in a “work

slowdown” in violation of RLA §2 First.’ Pet. App. 3a. One

week later, on November 17, 2000, United filed suit against

the Union, alleging an IAM work slowdown in violation of

RLA § 2 First, and seeking a temporary restraining order

(“TRO”) and a preliminary and permanent injunction to

compel IAM to end the alleged slowdown. Pet. App. 4a.

In support of its motion, United relied on (i) statistical

evidence of increased delays and cancellations of flights over

a period of several months correlated to increased incidence

of mechanics calling in sick, refusing voluntary overtime,

following the letter of safety requirements, and writing up

maintenance items right before flight time; (ii) flyers and

bulletins on IAM letterhead or posted on IAM bulletin

boards, which inter alia, told mechanics to “work safe;” * and

'RLA § 2 First provides in pertinent part that “i]t shall be the duty of

all carriers [and] their . . . employees to exert every reasonable effort to

make and maintain agreements concerning rates of pay, rules and working

conditions, and to settie all disputes . . in order to avoid any interruption to

commerce or to the operation of any carrier. . .”

? For example, on October 13, 2000, the IAM negotiating committee

sent out a bulletin stating:

This week we can report that almost no progress was accomplished .

. . Your Committee has made it clear that any company proposal

involving job concessions not withdrawn would place these

negotiations in jeopardy and could result in the IAM seeking self-

help . . . We have been made aware of several incidents of aircraft

damage around the system. Luckily no employees have been

injured. We hope that the stress and anxiety of these contract

negotiations have not been contributing factors. We need to remind

every employee that SAFETY COMES FIRST! We don’t need

aircraft damage and certainly do not want anybody injured.

PLEASE WORK SAFE, Take no part in any job action, don’t

(iii) a number of flyers and bulletins not on IAM letterhead,

and not posted on IAM bulletin boards, which explicitly

called for work slowdowns and refusals to work overtime.’

Pet. App. 6a-10a.

Although United alleged that the slowdown had begun in

July and continued thereafter, the Airline waited until

November 17—the Friday before Thanksgiving—to bring

suit, to file its injunction papers, and to argue that an

immediate TRO was necessary to avoid travel delays over the

holiday. Confronted with the litigation situation structured by

United, and without affording IAM any opportunity for a

meaningful response, the District Court issued a TRO that

same day. The TRO prohibited IAM from “calling,

permitting, instigating, authorizing, encouraging, participat-

ing in, approving or continuing” any work slowdown, and

directed IAM, inter alia, to post the TRO, to notify all United

mechanics and related workers of the TRO, and to direct all

such employees to return to a normal work schedule. The

District Court also scheduled a hearing on United’s motion

for a preliminary injunction for December 13, 2000.

believe in rumors, and remain solid behind your Committee.

[Pet. App. 6a-7a].

Other similar bulletins were sent or posted during October and November.

Pet. App. 7a-9a. IAM presented undisputed evidence that in early

October, United had approached members of the IAM negotiating

committee to inform them of two serious accidents that had occurred, and

that the safety memos were in response to that notification. Third

Supplemental Declaration of Scotty Ford { 3.

* One such bulletin stated: “Turn up the heat! No overtime . . . No four

overs . . . No easy-hours. . . No early starts . . . No working through

lunch”. Exhibit i3 to the Affidavit of United Vice President of Line

Maintenance William Norman (“Norman Affidavit”). Another stated:

“Actions to be taken [during the upcoming holiday travel season] will

include massive slow downs and delaying tactics...” Norman Affidavit,

Exhibit 16. See also id., Exhibit 14 (“Its time to turn up the heat . . . let’s

screw the bastards royally”).

On Tuesday, November 21, 2000, IAM filed seven

declarations that: (i) detailed IAM actions taken to comply

with the TRO, including posting the TRO, notifying the

United mechanics and related workers of the issuance of the

TRO, and directing compliance with its terms; and (ii) denied

IAM responsibility for the alleged work slowdown. Pet. App.

12a. In addition, prior to the hearing on the preliminary

injunction, [AM filed supplemental declarations establishing

as an undisputed fact that beginning immediately prior to July

12, 2000, and continuing through the period of negotiations,

the IAM had explicitly “encourag[ed] members to work

overtime,” and had urged its members to “take no part in any

job action.”* In addition, IAM laid out undisputed facts

establishing that a rival union, the Aircraft Mechanics

Fraternal Association (“AMFA”), and the United mechanics

who supported AMFA, had repeatedly called for work

slowdowns, refusals to work overtime, and sick-outs during

the period at issue.” And, IAM informed the District Court

* Immediately prior to the July 12, 2000 amendable date of the CBA,

IAM sent two e-mails to all United mechanics and related workers

“strongly encouraging members to work overtime.” Declaration of

Timothy Gillespie 4§ 2, 4. On July 14, 2000, two days after the

amendable date, IAM sent out the message: “The Committee strongly

urges each of you NOT to take part in any actions that could place your

job in jeopardy” and “We encourage you to consider working overtime

and place those premium dollars in your personal strike fund.”

Declaration of President and General Chairman, IAMAW District Lodge

141-M, Scotty Ford (“Ford Declaration”) § 6. And in September 11,

September 15, October 13, and October 27 publications, IAM urged its

members “do not involve yourself in any job action” and “take no part in

any job action.” Ford Declaration 46; Pet. App. 6a, 7a.

* Building on dissatisfaction among the United mechanics with the

1994 CBA, AMFA sought to replace IAM in late 1994 by petitioning the

National Mediation Board for a representational election, and supported

that petition with authorization cards from over fifty (50) percent of

- United’s mechanics and related workers. While AMFA lost the

election—the vote was 6,482 votes for IAM and 5,923 votes for AMFA—

AMFA has continued to maintain a significant presence at United by

that the communications explicitly calling for work

slowdowns that were attached to United’s Norman Affidavit,

see supra n. 3, were neither produced nor distributed by IAM.

Ford Declaration § 4. Norman later conceded that he had no

evidence to the contrary. Norman Deposition at pp. 85-86

Thus, United’s evidence regarding IAM’s involvement in

any work slowdown reduced to a handful of IAM bulletins

issued in October and November that complained about the

progress of negotiations and urged mechanics to “work safe.”

See supra n. 2; Pet. App. 6a-9a. United claimed that these

bulletins contained a hidden message to mechanics to slow

down, while [AM contended that the messages were sent in

response to United’s October, 2000 notification to the Union

of two serious accidents involving mechanics, see supra n. 2,

and that the safety messages were consistent with the

stoking dissatisfaction with the 1994 CBA. Declaration of Kenneth

Thiede (“Thiede Declaration”) 44 4-9; United Airlines, Inc., 22 NMB 11

(1995).

In May of 2000, moreover, five months into the collective bargaining

negotiations, United announced a plan to acquire US Airways. That move

was supported initially by IAM, was opposed by AMEFA, and was

unpopular with many United mechanics who were concerned about their

seniority. In opposition to the acquisition, mechanics who supported

AMEFA called publicly for slowdowns, refusals to work overtime, and

sick-outs to protest the acquisition, and those mechanics criticized [AM

for not doing the same. Second Supplemental Declaration of Scotty Ford

(“Second Ford Declaration”) §§ 8-12; see also Pet. App. 14a, n.8.

A further cause of unrest among the United mechanics was the

Airline’s promise in the press, prior to the beginning of the current

collective bargaining negotiations, that United would negotiate a

“seamless agreement, ” meaning that negotiations would be complete and

a new contract in place by July 12, 2000. Thiede Declaration 411. When

the amendable date passed without a contract, individual mechanics in

several locations staged sick-outs, which United did not claim were

caused or encouraged by LIAM. Second Ford Declaration §§ 8-12. United

disciplined the individual mechanics and the sick-out ended. /d.

mechanics’ obligations under federal law and with bulletins

sent out by United during the negotiations.°

Immediately following entry of the TRO, slowdown

activity increased significantly, as measured by maintenance

write-ups, out-of-service aircraft, maintenance-related flight

delays, and flight cancellations due to mechanical problems.

Pet. App. I la.

On the strength of that increase, on November 22, 2000,

United moved for contempt sanctions against IAM. The

Airline claimed that [AM failure to comply with the terms of

the TRO was the cause of the increase in slowdown activity.

Pet. App. 12a. IAM responded that the Union had fully

complied with the TRO’s commands, and that the statistics

simply reflected the fact that [AM was not responsible for,

and had no control over, any slowdown activity.

On November 27, 2000, the District Court held a

telephonic conference with the parties at which that court

directed United to identify the specific mechanics who had

engaged in inappropriate behavior, and admonished IAM to

““... put out . . . specific communications in those areas where

there appears to be continued job actions that you do not

approve,” and “ to take appropriate aggressive actions in

those instances where the company has pointed out con-

tinued work actions are taking place.” November 27, 2000

° For example, United stated in a publication to its San Francisco

maintenance facility:

SAFETY IS OUR TOP PRIORITY

This is the time when we all need to focus on SAFETY FIRST in all

we do .. . There was an announcement of a potential merger with

US Airways, and negotiations continue with ALPA and the LAM.

Needless to say, there is much going on and this is a concern as it

may divert attention from us SAFELY performing our aircraft

maintenance mission. [Deposition of Frederick Mohr, Ex. 8

(emphasis in original)}.

Transcript at 10-11. United subsequently identified a total of

144 mechanics (out of a bargaining unit of 16,000) who

allegedly had engaged in slowdown activities, and asked IAM

to “counsel them.” Pet. App. 12a-13a.

After December 1, 2000, the number of write-ups, the

number of out-of-service aircraft, the percentage of flights

delayed for mechanical reasons, and the percentage of

maintenance-related flight cancellations all decreased to

levels that were lower than those in early November, although

still significantly higher than the historical average. Pet. App.

13a. United claimed that the decrease was due to increased

efforts by IAM to stop the slowdown; IAM claimed that it

resulted from United’s long overdue decision to take

disciplinary action against individual mechanics and United’s

efforts to stop AMFA calls for a slowdown. Pet. App. 13a.

On December 7, 2000, the District Court sua sponte

dissolved the TRO, finding that “. . . the [TRO] has been

somewhat ineffective in requiring the mechanics to do their

jobs appropriately. . .” Pet. App. 15a. The District Court

noted that it “does not wish to have an impact on ongoing

negotiations between that labor organization [IAM] and the

Company,” December 7, 2000 hearing transcript at 26-27,

and that the “urgency” relating to “pending travel over the

Thanksgiving holidays” had dissipated, Pet. App. 15a.

After the TRO was dissolved, the incidence of delays and

cancellations continued to decrease. Pet. App. 39a.

On December 13, 2000, the District Court denied both

United’s motion for contempt and its motion for a

preliminary injunction. The District Court noted that there

had been “no detrimental impact [from] the dissolution of the

temporary restraining order;” Pet. App. 39a, and explained

that an injunction against LAM would not be an effective or

practical means of controlling persons responsible for the

slowdown:

[T]he facts in this case have convinced the court that

there are some members of their union who despite their

[i.e., LAM’s] best efforts have continued to, and perhaps

will continue to, act inappropriately and to do these job

actions which are not proper.

* * * *

As to the motion for the preliminary injunction, again,

going back to what I believe is perhaps the most

effective way to deal with, I find, a certain element of

the Union which is resistant to leadership, I think those

persons, as I suggested previously, had to be identified,

the Union needed to be notified of who those persons

were, and appropriate action should be taken against the

individuals who are continuing to impact United in its

ability to service its customers. ;

* * * *

I think those actions in which certain individuals who

have been identified as writing up safety violations

inappropriately or failing to do them timely, those

persons being identified and subjected to immediate

consequences I think is the best way and maybe the only

way to insure that the majority of the members of

the Union continue to act appropriately in this case.

[Pet. App. 37a-39a].

United appealed the District Court’s denial of the motion

for a preliminary injunction to the Seventh Circuit. United’s

theory on appeal was that,

[s]ince the court found that some of its mechanics were

engaging in a concerted job action (that is, a deliberate

slowdown) during the mediation process, United was

entitled under the RLA to an injunction ordering the

union to make every reasonable effort to stop the

slowdown even if it could not be determined whether the

injunction against the union would have been entirely

effective in ending it. [Pet. App. 21a.]

The Seventh Circuit “agree[d] with United,” id., that the

Airline was entitled to an injunction against IAM on a

showing that “a number of mechanics were ‘do[ing] job

actions which are not proper’ and acting ‘in concert’ or in a

‘mob mentality,’” and that IAM had been “involved in the

[job action] work slowdown.” Pet. App. 25a-27a.’ See also

Pet. App. 22a (“Once a court determines that such a concerted

work action is occurring in violation of the RLA, an

injunction can issue ordering the union to observe its

statutory duty by trying to stop it.”’).

The Seventh Circuit read this Court’s decision in Chicago

& N.W. Ry. Co. v. Transporation Union, 402 U.S. 570, 582-

83 (1971), which states the standard for issuing such a labor

injunction, as requiring an inquiry into whether the injunction

is the “‘sole effective means’ of enforcing IAM’s duties

under the status quo provisions of the RLA.” Pet. App. 25a.

And, the Court of Appeals rejected the District Court’s

conclusion that the standard is whether the injunction is the

“sole effective means” of remedying the RLA violation in

question—the standard under which the District Court

refused the injunction on the ground that an order against

IAM would not be an “effective” means of “deal[ing]” with

the “certain element” of the United mechanics who were

outside the Union’s control and who were engaging in work

slowdown activity. /d. at 38a. On its view of the law, the

7 In this regard, the Court of Appeals found that that IAM had been

“involve[d] in the work slowdown,” Pet. App. 27a, based on the “work

safe” bulletins that were issued on IAM letterhead or posted on [AM

bulletin boards, At the same time, the court below did not take any issue

with the undisputed evidence that “a rival union” (AMFA) vigorously

championed the slowdown, and that the only bulletins that explicitly

called for a work slowdown had been posted or distributed by individual

mechanics who were not acting for or on behalf of IAM. Pet. App. 10a,

14a n. 8.

court below deemed it irrelevant whether, “by directly

disciplining or terminating individual employees . . . United

can diminish or even stop the work slowdown through its

own actions.” /d. 2la-22a. So long as there might be some

“additional positive effect” that derives from an injunction

against LAM, issuance of the injunction was required. /d. at

3la. The Seventh Circuit therefore reversed the District

Court and remanded “with instructions to enter the

preliminary injunction against LAM.” /d. at 33a.

REASONS FOR GRANTING THE WRIT

A. The Seventh Circuit’s decision opens a wide Railway

Labor Act §2 First avenue affording employers free and easy

access to precisely the kind of federal court injunction against

a union/exclusive bargaining representative precluded by

Norris LaGuardia Act § 4—viz. an “injunction in [a] case

involving or growing out of [a] labor dispute to prohibit any

person or persons participating . . . in such dispute . . . from

... Singly or in concert . . . ceasing or refusing to perform any

work...”

The Court of Appeals opened that way by dismantling the

barrier to the improvident issuance of such labor injunctions

crafted by this Court in Chicago & N.W. Ry. Co. v.

Transportation Union, 402 U.S. 570, 582-83 (1971), as the

“appropriate accommodation” of RLA § 2 First and Norris-

LaGuardia § 4—that an injunction within Norris-LaGuardia

§ 4’s coverage can issue in an RLA § 2 First suit only where

“such a remedy is the only practical, effective means of

enforcing the duty to exert every reasonable effort to make

and maintain agreements,” (emphasis added).

According to the Court of Appeals, in an RLA § 2 First

case such as this one, the issuance of an injunction against the

union is always proper and follows automatically from an

employer’s showing that a “concerted work action is

occurring in violation of the RLA.” Pet. App. 22a. The

Court of Appeals’ ruling makes the careful balance this Court

struck between RLA § 2 First and Norris-LaGuardia § 4 in

Chicago & N.W. Ry. Co. an “appropriate accommodation”

between the two statutes in name only.

The decision below is thus utterly irreconcilable with

Chicago & N.W. Ry. Co., and could not be more wrong. And

this is not a situation—serious enough in itself—where the

Court of Appeals has failed to follow a formal rule of law of

narrow consequence stated by this Court.

The Chicago & N.W. Ry. Co. accommodation of RLA § 2

First and Norris-LaGuardia § 4 is forged out of “weighty

considerations counsel[ing] restraint” in the exercise of the

federal courts’ equitable powers in labor disputes—con-

siderations born of the misuse of the equity courts by

employers during the era of government by injunction. As

the Chicago & N.W. Ry. Co. Court recognized, allowing

employers to involve the federal courts in labor disputes

through RLA § 2 First suits seeking injunctions against

concerted activity “creates a not insignificant danger that

parties will structure their negotiating positions and tactics

with an eye on the courts, rather than restricting their

attention to the business at hand,” and raises the specter of

“freewheeling judicial interference in labor relations of the

sort that called forth the Norris-LaGuardia Act in the first

place.” 402 U.S. at 583.

The Court of Appeals’ ruling utterly disregards these

considerations and legitimizes the tactical lawsuits to

strengthen an employer’s economic position in a labor dispute

that have always marked labor injunction litigation—and that

have always had the most deleterious effect on the fair

resolution by the parties of these disputes and the just

administration of the labor laws by the federal courts.

As this suit, filed four months after the alleged RLA § 2

First violation began, one week after IAM sought release

from the RLA mediation process, and on the Friday prior to

the Thanksgiving holiday, vividly demonstrates, RLA

employers have every incentive to bring tactical RLA § 2

_First injunction suits—viz., every incentive to seize an

opportune time during the long drawn-out RLA bargaining

processes to bring a suit alleging that there have been

employee concerted job actions that the union has suggested,

has instigated, or, by inaction, has condoned, and that the

court should issue an injunction ordering the union to

effectuate an end to the job actions—an injunction backed up

by the contempt power.

Such an injunctive order puts the union—the employees’

representative against management—into the anomalous

position of the employer’s agent charged by the court with

seeing to it that employees do their work as management

wants the work done. Such an order relieves the employer of

its managerial responsibilities and drives a wedge between

the union and the employees which weakens the union as an

effective employee representative. And, such an order

subjects the union at any point to an employer citation for

contempt alleging that the union has not brought an end to the

job actions and is thus not doing what it is required to do by

the injunction. Of course, and very much to the point, such a

lawsuit, such an order, and the policing of the order deeply

enmesh the federal district court in the parties’ labor relations

and in their collective bargaining dispute.

Given all this, experience demonstrates that, with the

slightest encouragement, RLA employers will routinely call

on the federal courts through RLA §2 First lawsuits like

this one to place unions under injunctive commands to put an

end to concerted work actions including concerted work

actions the union did not in fact command and cannot

effectively control. Where such injunctions are issued,

the threat of contempt sanctions—which is the real object

of employer requests for injunctions in cases of this nature—

will have a draconian and improper in terrorem effect on

unions faced with the risk of contempt citations for such work

actions. Through such RLA § 2 First lawsuits, then,

employers will enmesh the federal courts in their labor

disputes and their labor relations and enlist the federal courts

injunctive powers to augment their bargaining power—in

direct contravention of the core policies of the Norris-

LaGuardia Act.

The Seventh Circuit’s decision here—by ruling that in

RLA § 2 First suits, injunctions against the union are to be

granted automatically on a finding of “a concerted work

action . . . in violation of the RLA,” without regard to whether

the injunction will be at all effective in stopping the

slowdown, reads the Chicago & N.W. Ry. Co. limitation on

the issuance of such injunctions out of the law. The decision

below goes well beyond giving employers an opening to file

such suits, it invites employers to do so.

Given the importance of the Chicago & N.W. Ry. Co.

accommodation of RLA § 2 First and Norris-LaGuardia § 4

to the integrity of the federal courts’ role in enforcing the

national labor policy, and the deleterious effects of the

Seventh Circuit’s emasculation of Chicago & N.W. Ry. Co.'s

limitation on injunctions against unions in RLA § 2 First

“concerted work action” cases on both the litigation system

and the collective bargaining system, the decision below

requires review and correction by this Court.

B. The Seventh Circuit’s decision—which is

irreconcilable with this Court’s Chicago & N.W. Ry. Co.

decision and which unhinges the careful balance between § 4

this Court struck in Chicago & N.W. Ry. Co.—is wrong in

both its reasoning and its result.

(1) This case and Chicago & N.W. Ry. Co. lie at the same

intersection of “two statutes with purposes that lead in

opposing directions” 402 U.S. at 582: (1) RLA § 2 First,

which directs unions and employers “to exert every

reasonable effort to make and maintain agreements. . . and to

settle all disputes;” and (2) Norris-LaGuardia § 4, which

denies the federal courts jurisdiction to issue “injunction[s] in

[a] case involving or growing out of [a] labor dispute to

prohibit any person or persons participating . . . in such

dispute . . . from . . . singly or in concert . . . ceasing or

refusing to perform any work ... .”

The RLA, for its part, sets forth a detailed set of procedures

which the parties to a transportation labor dispute must

exhaust before either side can engage in self-help.” RLA § 2

First is one component of this statutory scheme and has been

read by this Court as part of an “integrated, harmonious

scheme for preserving the status quo from the beginning of a

major dispute through the final 30-day ‘cooling off’ period.”

Shore Line v. Transportation Union, 396 U.S. 142, 152

(1969).

* This Court outlined the RLA procedures as follows:

The Act provides a detailed framework to facilitate the voluntary

settlement of major disputes. A party desiring to effect a change of

rates of pay, rules, or working conditions must give advance written

notice. § 6. The parties must confer, § 2 Second, and if conference

fails to resolve the dispute, either or both may invoke the services of

the National Mediation Board, which may also proffer its services

sua sponte if it finds a labor emergency to exist. § 5 First. If

mediation fails, the Board must endeavor to induce the parties to

submit the controversy to binding arbitration, which can take place,

however, only if both consent. §§ 5 First, 7. If arbitration is

rejected and the dispute threatens ‘substantially to interrupt

interstate commerce to a degree such as to deprive any section of

the country of essential transportation service, the Mediation Board

shall notify the President,’ who may create an emergency board to

investigate and report on the dispute. § 10. While the dispute is

working its way through these stages, neither party may unilaterally

alter the status quo. §§ 2 Seventh, 5 First, 6, 10. [Railroad

Trainmen v. Terminal Co., 394 U.S. 369, 378 (1969).]

At the same time, the Norris-LaGuardia Act, “expresses a

basic policy against the injunction of activities of labor

unions.” Machinists v. Street, 367 U.S. 740, 772-773 (1961).

And Norris-LaGuardia § 4 denies the federal courts

jurisdiction to issue injunctions in labor disputes to prohibit

employees from “ceasing or refusing to perform any work.”

(2) RLA § 2 First and Norris-LaGuardia § 4 could not be

in greater tension and in Chicago & N.W. Ry. Co., this Court

“trace[d] out . . . the uncertain line of appropriate

accommodation of [the] two statutes.” 402 U.S. at 582.

There, the railroad brought a RLA § 2 First suit against the

union alleging the union’s failure to “exert every reasonable

effort to make and maintain agreements . . .” during

bargaining, and seeking as a remedy for that violation an

injunction prohibiting the union from striking in support of its

contract demands following its release from mediation. /d. at

571-72. The Chicago & N.W. Ry. Co. Court held that §2 First

does create a legal collective bargaining obligation that is

enforceable by the federal courts through, inter alia, proper

injunctive remedies. 402 U.S. at 577-80.

Where, however, as in Chicago & N.W. Ry. Co., and as in

this case, a plaintiff seeks an injunction to enforce RLA § 2

First that would otherwise run afoul of Norris-LaGuardia § 4,

the Court found “weighty considerations [which] counsel

restraint.” 402 U.S. at 583. Accordingly the Court held that

such an injunction may not issue unless “such a remedy is the

only practical, effective means of enforcing the duty to exert

every reasonable effort to make and maintain agreements.”

Id. (emphasis added) See also Burlington No. R. Co. v.

Maintenance Employees, 481 U.S. 429, 446 (1987)(“Even

when a violation of a specific mandate of the RLA is shown,

‘[cJourts should hesitate to fix upon the injunctive remedy .. .

unless that remedy alone can effectively guard the plaintiff’s

right.’”’) (quoting Street, 367 U.S. at 773).

(3) As the District Court correctly recognized in denying

United an injunction against IAM, in this case “such a

remedy’—an injunction within Norris-LaGuardia § 4’s

terms—is not “the only practical, effective means” of

enforcing RLA § 2 First. Indeed, in the circumstances here,

such an injunction is not a practical, effective remedy at all.

United sought an injunction against IAM requiring the

Union to take action that would put an end to a “work

slowdown” ostensibly on the basis of the breach of the

Union’ RLA § 2 First duty “to maintain agreements” during

the status quo mediation/collective bargaining process. But

the undisputed facts established: first, that to the extent [IAM

was responsible for the slowdown at all, the Union was not

principally responsible; and second, that given its true genesis

and nature, IAM did not have the effective power to end the

work slowdown. In the end, as the District Court learned

from its superintendence of the TRO issued the day the

lawsuit was filed, United’s complaint was against a job action

instigated by a rival outside union—AMFA—not IAM, and

any work slowdown was by United mechanics who were

AMBFA supporters. That being so, it was United, not IAM,

that had the only effective power—disciplining those

employees—to deal with the “work slowdown.”.

It follows, as the District Court concluded, that an

injunction against IAM was not a “practical, effective means”

for enforcing RLA § 2 First at all, much less the “only

practical and effective” remedy.

(4) In reversing the District Court, the Seventh Circuit

ruled that in an RLA § 2 First “concerted job action” case like

this one, an injunction against the union follows

automatically from a finding that “a concerted work action is

occurring in violation of the RLA.” Pet. App. 22a. The

Seventh Circuit gave two reasons for its ruling; neither can

bear a moment’s inspection.

(a) Most generally, the court below concluded that in an

RLA § 2 First concerted job action/work slowdown case,

Chicago & N.W. Ry. Co. calls for inquiry into whether an

injunction against a union is the “‘sole effective means’ of

enforcing [the Union’s] duties under the status quo provisions

of the RLA,” Pet. App. 25a, and not into whether the injunc-

tion is the “only practical, effective means” of remedying the

violation of § 2 First in question—viz. the work slowdown in

this case by dissident United mechanics who were not under

IAM’s control.

The Seventh Circuit’s effort to press Chicago & N.W.

Ry. Co.’s language—that an injunction may only issue if the

injunction is the “only practical, effective means of enforcing

the duty to exert every reasonable effort to make and maintain

agreements’—into its service fails. The Court of Appeals’

reading of the Chicago & N.W. Ry. Co. requirement for the

issuance of a labor injunction reduces that requirement to a

meaningless tautology.

By definition an injunction against a union ordering the

union to fulfill its RLA § 2 First duties is a means “of

enforcing” those duties. And, since it goes without saying

that a party should fulfill its statutory duties, the injunction is

a legally proper order in a very narrow sense. The injunction,

moreover, is the “sole effective means” of achieving its ends

in that such an order backed by contempt is the only kind of

coercive order to obey § 2 First’s mandates an equity court is

empowered to issue against a union in an RLA § 2 First

lawsuit. If those surface conditions for the issuance of a labor

injunction are all that Chicago N.W. Ry. Co. requires, then it

adds nothing to the normal requirements of equity at all.

Reading its requirement as a whole, what Chicago & N.W.

Ry. Co. in fact mandates is an inquiry into whether, given the

§ 2 First violation, the injunction is both proper and

necessary to assure that the union ends the violation and

brings itself into conformity with § 2 First’s commands; not,

as the Seventh Circuit would have it, an inquiry into whether

an injunction is an effective means of enforcing the RLA by

giving added force to § 2 First’s commands—an inquiry that

will always be answered in the affirmative.

What Chicago & N.W. Ry. Co. adds to normal equity

practice, and adds in order to accommodate the RLA to the

Norris-LaGuardia anti-injunction policy, is the requirement

that the injunction be the “only practical and effective”

remedy—viz. that an injunction against a union in the face of

Norris LaGuardia §4 be truly necessary to end the RLA § 2

First violation. The Seventh Circuit’s ruling leaves nothing

of that additional requirement on the issuance of injunctions

in RLA § 2 First cases.

b. In a variation on the same theme, the Seventh Circuit

faulted the District Court for treating as material to the

Chicago & N.W. Ry. Co. inquiry “[w]hether United can

diminish or even stop the work slowdown through its own

actions.” Pet. App. 22a. In the Court of Appeal’s view,

“requiring United to take efforts to end the slowdown .. .

would be requiring United to assume IAM’s [RLA § 2 First]

duty altogether.” /d.

This is a total non sequiter. The District Court did not

impose any requirement on United, much less “requir[e]

United to take efforts to end the slowdown.” What the

district court did, as Chicago & N.W. Ry. Co. requires, was to

take account of the entire situation in determining whether an

injunction against the union was the “only practical, effective

means” of ending the slowdown. In taking that account, the

District Court recognized that the slowdown activities in

question were by United mechanics who were supporters of a

rival outside union (AMFA), who were not acting at IAM’s

behest, who were not subject to IAM’s control—but who

most certainly were subject to United’s control. In this

situation, by definition, IAM had no independent RLA § 2

First duty to end these mechanic’s work slowdown activities,

and the District Court’s determination not to issue an

injunction against IAM cannot possibly be said to “require

United to assume IAM’s duty altogether.”

* * * *

The sum of the matter is that the Seventh Circuit has read

Chicago & N.W. Ry. Co.’s “only practical, effective means”

slimitation on the issuance of injunctions in RLA § 2 First

“concerted job action” cases out of the law. Under the Court

of Appeals ruling, § 2 First injunctions against unions will be

entered routinely, even when the injunction is not an effective

means—let alone the “only” such means—to end the

concerted work activity. As we have stressed, that result

totally overrides Norris-LaGuardia’s anti-injunction policy

and destroys the careful RLA § 2 First/Norris-LaGuardia § 4

balance struck in Chicago & N.W. Ry. Co.

CONCLUSION

For the foregoing reasons, petitioner International

Association of Machinists and Aerospace Workers, et al.

respectfully requests that the Court grant the Petition for

Certiorari.

Respectfully submitted,

ALLISON BECK

General Counsel, [AMAW

DAVID NEIGUS

Associate General Counsel,

IAMAW

9000 Machinists Place

Upper Marlboro, MD 20772

JEREMIAH A. COLLINS

PAGE KENNEDY

LAURENCE GOLD

(Counsel of Record)

BREDHOFF & KAISER, P.L.L.C.

805 Fifteenth Street, N. W.

Suite 1000

Washington, D.C. 20005

(202) 842-2600

APPENDICES

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 00-4220

UNITED AIR LINES, INCORPORATED,

Plaintiff-Appellant,

Vv.

INTERNATIONAL ASSOCIATION OF MACHINIST AND AERO-

SPACE WORKERS, AFL-CIO, DISTRICT LODGE 141-M,

IAMAW, AIR TRANSPORT EMPLOYEES LOCAL LODGE

1781, IAMAW, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 00 C 7265—William J. Hibbler, Judge.

Argued February 22, 2001—Decided March 14, 2001

Before Bauer, Coffey, and Manion, Circuit Judges.

Bauer, Circuit Judge. United Airlines (“United’’) appeals

from the denial of a preliminary injunction which it had

sought against the International Association of Machinist and

Aerospace Workers, AFL-CIO (“IAM”) in order to compel

IAM to exert every reasonable effort to discourage its

member mechanics from engaging in a concerted work

slowdown at United. For the reasons set forth below, we

reverse the decision of the district court.

BACKGROUND

United is a “carrier” as defined by § 201 of the Railway

Labor Act (“RLA”), 45 U.S.C. § 181. IAM is the certified

exclusive bargaining representative of six different crafts or

classes of United employees, including the mechanics craft or

class. In 1994, IAM and United negotiated a collective

bargaining agreement (“CBA”), which by its terms became

amendable on July 12, 2000 The parties entered into

negotiations in December of 1999 but were unable to reach an

agreement by July 12, 2000.

In September of 2000, United and IAM jointly applied to

the National Mediation Board (“NMB”) for mediation

pursuant to §5 of the RLA, 45 U.S.C. § 155. The RLA

requires both parties to maintain the status quo during

mediation (that is, it forbids either party from unilaterally

altering the working conditions in place, broadly defined).

Negotiations between the parties broke off on October 31,

and resumed on December 7. The talks continue as of the

time of this decision.

Beginning shortly after July of 2000, and continuing in

varying degrees up to the present time, United has

experienced various maintenance-related anomalies which it

interprets as a deliberate “slowdown” campaign on the part of

its mechanics. Specifically, United has experienced a greater

than normal number of maintenance write-up ' by mechanics,

longer than usual “cycle times”* at its Indianapolis

Maintenance Center, a sharp increase in the number of

' A maintenance “write-up” is a written record by a mechanic of any

item on an aircraft that may have a defect or a condition requiring further

inspection or repair. Some write-ups identify serious defects that may

affect airworthiness and therefore must be repaired immediately. Others

involve merely trivial or cosmetic defects, such as broken tray tables or

scratched paint, which can be repaired at a later time.

7A “cycle time” is the time that it takes to perform a scheduled

maintenance check.

aircraft held out of service for unscheduled maintenance,’ and

an increase in maintenance-related flight delays and

cancellations. By November 10, 2000 United suspected that

IAM was directing or encouraging the work slowdown, and

on November 10, 2000 United Senior Vice President Andrew

Studdert wrote a letter to IAM District Lodge 141-M General

Chairman Scotty Ford calling on the union to halt what he

called the “concerted job action by employees represented by

District Lodge 141-M.” In the letter, Studdert complained that

IAM employees were submitting excessive mechanical write-

ups making erroneous claims of missing equipment, and

failing to work scheduled overtime. Studdert characterized

the mechanics’ conduct as “clearly concerted and appear[ing]

to be in direct response to misleading communications from

the IAM about the Company’s position at the bargaining

table, inaccurate descriptions of other management decisions,

and clear ‘work to rule’ campaign directives from District

Lodge 141-M.” Studdert then reminded Ford of IAM’s duties

under the RLA to maintain the status quo during ongoing

negotiations, and noted that IAM’s failure to observe this

duty was illegal and enjoinable in federal court. Finally,

Studdert requested IAM and its members to return to the

status quo immediately. He demanded an immediate end to

IAM communications containing misleading information

about United’s bargaining positions, as well as “an immediate

end to work to rule directives, and any other steps necessary

to secure an immediate end to this disruptive behavior.”

On November 14, 2000, Scotty Ford sent Studdert a letter

in response. In the letter, Ford stated that he “greatly

resent[ed] what can only be seen as an attempt to threaten and

intimidate this Union and its members during these

negotiations.” Ford denied that IAM had encouraged any

> The number of aircraft out of service for an unscheduled maintenance

check is a function of two factors: the number of maintenance write-ups,

and the amount of time that it takes the mechanics to repair the defects.

Pe]

employee to violate either the CBA or the RLA, and he

requested Studdert to present specific evidence that either the

District or any of its officers were doing so. Ford asserted that

recent communications from the IAM District 141-M

Negotiating Committee had “repeatedly advised the [union]

membership not to take part in any job action and had gone so

far as to recommend that members work overtime.” Ford

contended that recent actions by United management

(including the discharge of 108 mechanics in Los Angeles’’)

were the “true reason behind any so-called ‘disruptive

behavior’” on the part of IAM mechanics, and he accused

United of trying to “censor” IAM communications.

One week later, United moved for a temporary restraining

order (“TRO”) and a preliminary injunction. United asked the

court to prohibit United’s mechanics from engaging in a

slowdown campaign and to order the IAM, its district and

local lodges, and their officers to take specific steps to stop

ongoing slowdown activity. In support of its motion, United

produced three categories of evidence: (1) statistical evidence

of a slowdown campaign, along with testimony by United

managers describing their personal observation of slowdown

activities by mechanics; (2) letters and bulletins issued by

IAM District Lodge 141-M and IAM’s local lodges during

October and November 2000 which United claimed

constituted a deliberate slowdown campaign directed by

IAM; and (3) letters and flyers posted by individual

mechanics during the same period that encouraged work

slowdowns and other job actions. These categories of

evidence are addressed in turn.

(1) Statistical evidence of a slowdown/managerial testimony

United’s statistical evidence revealed the following: (1) a

jump in the number of maintenance write-ups from historical

levels of 1050-1100 maintenance items per day to 1350 per

day in July of 2000, and climbing to almost 1500 per day

during the first two weeks of November (after the contract

talks broke off); (2) an increase in cycle times for scheduled

maintenance checks at United’s Indianapolis Maintenance

Center beginning in July and rising to almost double their

historical averages during September through November

2000; (3) an increase in the number of aircraft held out of

service for unscheduled maintenance at any given point from

the historical average of roughly 12 to nearly 30 in July,

followed by a slight decrease in September through

November, and a subsequent increase to 35 a day during the

first two weeks of November; (4) an increase in the

percentage of United flights that are delayed due to

mechanical problems from the historical average of roughly

four percent to over seven percent in July through August

2000, then dipping to six percent in September and October,

and climbing again to approximately eight percent during the

first two weeks of November; (3) A doubling of the

percentage of flight’s cancelled due to mechanical problems

from the historical average of roughly one percent to over 2.5

percent in July through August 2000, followed by a decline to

approximately 1.5 percent in September and October, and

another increase to two percent during the first two weeks of

November.*

In addition, United produced testimony from the managers

at each of United’s large and medium-sized maintenance

bases, many of whom described their personal observations

of mechanics making repeated and unnecessary references to

maintenance manuals, refusing en masse to work voluntary

overtime, writing up maintenance items immediately before

flight time (causing delays and cancellations), and writing up

cosmetic defects which ordinarily would be ignored, such as

torn foot rests, worn arm rests, and chipped paint.

* According to an economist retained by United, the odds that the

increases in cancellations and delays could be caused by random,

coincidental behavior by United’s mechanics were less than one in a

trillion.

(2) Letters and bulletins issued by IAM District Lodge

141-M and other local lodges

On October 3, 2000, District Lodge 141-M—the body

authorized by IAM to negotiate the CBA between the

mechanics and United—sent a bulletin to all IAM aircraft

maintenance personnel stressing the importance of ensuring

that aircraft be in airworthy condition before being returned

to service as required by the federal aviation regulations. The

bulletin noted “apparent inconsistencies in the procedures of

reporting maintenance discrepancies on United Airlines

aircraft.” Specifically, it noted that according to IMCOP

operating procedures, mechanics should report discrepancies

to the Airframe team leader or the lead mechanic “to

determine whether a write-up is necessary,” but the

Administrative and Operating Policy suggested that write-ups

can be generated by dock personnel. The bulletin urges

individual technicians to write up problems and to repair,

replace, or defer the discrepancy if necessary, and it further

exhorts the mechanics: “If you find something wrong on an

aircraft, ACTION MUST BE TAKEN!” (emphasis in

original). First Norman Aff. para. 8, Exhibit 1.

On October 13, District Lodge 141-M sent a bulletin to its

member mechanics under the prominent title “Negotiations.”

The bulletin opens by describing the recent progress of the

negotiations between United and the IAM (which it casts in a

negative light), and proceeds to admonish member mechanics

to “work safe”:

This week we can report that almost no progress was

accomplished . . . Your Committee has made it clear that

any company proposal involving job concessions not

withdrawn would place these negotiations in jeopardy

and could result in the LAM seeking self-help. . . . We

have been made aware of several incidents of aircraft

damage around the system. Luckily, no employees have

been injured. We hope that the stress and anxiety of

these contract negotiations have not been contributing

factors. We need to remind every employee that

SAFETY COMES FIRST! We don’t need aircraft

damage and certainly do not want anybody injured.

PLEASE WORK SAFE, take no part in any job action,

don’t believe rumors, and remain solid behind your

Committee.

United introduced testimony from some of its maintenance

officials that phrases such as “work safe” are commonly

recognized by United mechanics as code words calling for a

work slowdown.

A posting on the [AM website during the same time period

echoed this message to “work safe.” An October 27 website

posting by the District 141-M negotiating team recounts the

recent status of negotiations, and then reminds members to”

not believe rumors,” “be supportive,”‘[wJork safe,” and

“[t]ake no part in any job action.” /d. at para. 10, Exhibit 3.

In addition, a November 10 posting on the same website

reported that the NMB had adjourned the current round of

negotiations, and stated that United had not submitted

realistic wage proposals. It announced that IAM had called

for are lease from further negotiations “in order to begin the

30-day countdown,” and quoted Ford as saying: “We do not

believe United will bargain seriously without additional

pressure .... After 6 years of dedication and sacrifice by

IAM members and 6 years of historic profits by United, it’s

payback time . . . . The sooner United understands that the

better.” The posting concluded: “while the Railway Labor

Act allows for near-endless negotiations in the airline

industry, the membership of this union does not.” /d. at para.

11, Exhibit 4.

On October 19, 2000, one of IAM’s local lodges issued a

bulletin which stated:” The company started its ‘job action

letter campaign’ Tuesday in retaliation to the IA.M.

Negotiating Committee’s update of October 13, stating

WORK SAFE! This has obviously made the company upset.”

The bulletin went on to excoriate United for its strong-armed

management techniques, and asserted: “The ugly truth is we

are at war, all out war!” /d. at para. 13, Exhibit 6.

United also presented bulletins and memos which it

claimed were issued by other IAM Local Lodges” that

stressed the “safety first” message even more emphatically.

For example, a bulletin which purported to come from IAM

Local Lodge 1781 prominently displayed the words “Safety

First” twice and stated:

We must work even harder at performing our jobs in a

safe manner... . We must also be aware that we have a

responsibility to comply with the many FAA and

CAL/OSHA regulations required to perform our daily

jobs, no matter how long it takes . . . . It is imperative

that, in these times of stress, uncertainty and distractions;

working safely, within our skills, must be our number

one concern. NO JOB IS SO URGENT THAT IT

CAN’T BE DONE SAFELY. (emphasis in original). /d.

_at para. 14, Exhibit 7.

In late October or early November, three virtually identical

bulletins appeared in three separate United maintenance bases

under the headings “Negotiations 2000,” “Millennium

Negotiations,” and “Lodge 1781 Strike Committee.” One of

them appeared on an official IAM bulletin board inside of a

locked, glass case. The bulletins read, in part:

> IAM denies that any of its local lodges actually issued these bulletins

or memos, and claimed that they were issued either by individual

“dissident” union members without authorization, or by other individuals

who were hostile to the IAM and sympathetic to a rival union that had

been gaining strength at United and that was trying to replace IAM. In his

deposition, United Vice President of Line Maintenance William Norman

conceded that he did not know whether they were actually published or

produced by IAM lodges or union officials. Norman Dep. at 85-6.

In keeping with the “Safety First” ideal, it is time for

us to examine our tools and equipment. Greasy wrenches

could result in personal injuries and damaged parts.

Check your boxes and tools. If they haven’t been

cleaned lately, give some thought to safety and clean

them daily.

Some tools need lubrication to work properly. Knives

need to be sharpened to work efficiently and safely. Now

is the time to take care of these needs.

Machinery and equipment also should be checked for

safety. Fork lifts, tugs, drive belts, fitting devices,

baggage equipment, food service equipment . . . all

should be checked thoroughly. If it isn’t safe, shut it

down and get it fixed. (emphasis in original).

Finally, a memo bearing the IAM seal and purporting to be

from Local Lodge 1487 in Chicago further reinforced the

message under the heading of Work Safe. The memo

complains of excessive and inappropriate discipline by

United which it characterizes as constituting “an environment

of intimidation.” The memo goes on to say, in part:

We, as the Grievance Committee, feel obligated to-

advise you how to stay out of trouble during these

oppressive times. We advise you to take the advice given

by Scotty Ford, D-141M President and General Chair,

on the bulletin dated Oct. 15,2000 and WORK SAFE.

Do not let outside influences distract you from the job at

hand. The utmost importance must be put on SAFETY

SO we Can return to our families after work.

They created this atmosphere, now we have to deal with

it. If you do not follow the rules and procedures you will

be disciplined up to and including discharge. For this

reason we are asking our members to be careful, follow

all procedures and WORK SAFE!!! (emphasis in

original.) Jd. at sec. 16, Exhibit 9.

IAM denies that it issued these bulletins.

10a

(3) Letters and flyers posted by individual mechanics

United also produced a number of leaflets, flyers, and

website messages which it claimed were distributed in

United’s maintenance facilities or directed at United

mechanics that explicitly acknowledged and encouraged

slowdown activities. For example, a flyer entitled “TURN UP

THE HEAT” and addressed to United’s CEO, Jim Goodwin,

which was posted in San Francisco stated: “We, as

professionals, do not enjoy work slowdowns, but you leave us

no choice. . . . NO OVERTIME November 21-28[:] 1.

Starting 0500 11/21[;] 2. No Four Overs[;] 3. No Easy-

Hours[;] 4. No Early Starts[;] 5. No Working Through Lunch.

P.S. We will remember those who work!!” /d. at para. 20,

Exhibit 13. In addition, United claims that it received other

flyers on or about November 7, 2000, which stated,

respectively: “[L]et’s screw the bastards royally. It’s time to

turn up the heat,” and “LET’S MAKE THIS THE HOLIDAY

14and 15. The third flyer which was signed” LAM AFL/CIO”

but was not on IAM letterhead stated: “the members of the

International Association of Machinists at United Airlines

wish to make it known that they must act aggressively against

their company during the upcoming holiday travel season.

Actions to be taken will include massive slow downs and

delaying tactics beginning in late November, 2000. . . .” /d. at

sec.23, Exhibit 16. IAM denies issuing any of these flyers.

On November 17, 2000, after hearing argument from both

sides, the district court found that United was “likely to

succeed on the merits of its claims that Defendants are

violating the RLA,” that United was suffering “immediate,

substantial, and irreparable injury” in the form of lost revenue

and consumer goodwill, and that the harm to IAM from the

issuance of the TRO would be” inconsequential when

compared to the loss and hardship which United and the

public will suffer.” Accordingly, the court issued a TRO

lla

prohibiting IAM and its members from engaging in or

encouraging any kind of slowdown activity or other work

action designed to interfere with United’s airline operations,

and ordering all officers of IAM’s district and local lodges to

“take all reasonable steps within their power’ to prevent the

enjoined actions, by (inter alia) notifying all [AM mechanics

of the issuance, contents, and meaning of TRO in “the most

expeditious means possible,” putting this notice on [AM’s

websites and recorded telephone hotlines, instructing all

IAM-represented personnel to resume their normal working

schedules and practices, and directing members to end any

slowdown activity (and any communications encouraging

such activity) upon pain of fine, suspension, or other sanction

by IAM. In response to concerns expressed by I[AM’s counsel

that the TRO might discourage IAM mechanics from

performing their jobs with their usual care, the court added to

the TRO the following sentence: “This notice in no way is

meant to have impact upon each mechanic’s exercise of their

usual diligence in providing appropriate safety for all

aircraft.”

The TRO was not initially effective. Indeed, the situation

appeared to worsen considerably after its issuance. In the

days following the TRO: (1) the number of write-ups

increased to an average of over1500 per day, with an all-time

peak of 2037 on November 22; (2) from November18-30, the

average number of out-of-service aircraft increased to 42 with

an all-time high of 52 on November 26; (3) during the same

period, the number of maintenance-related flight delays

increased to 8.8 percent of all flights; (4) in the same period,

the number of flight cancellations due to mechanical

problems increased to 2.5 percent of all flights. Each of these

figures represented an appreciable increase from the

corresponding levels for the month before the TRO was

issued (which were already substantially higher than

historical averages). The parties have differing explanations

for this. United believes that IAM failed to comply with the

PND Bt Pa oe

12a

TRO.° IAM claims that it fully complied with the TRO, and

argues that the ineffectiveness of the TRO demonstrates that,

to the extent that any illegal work action was occurring at all

(which IAM did not concede), such action was being

performed by dissident mechanics who were not in the

union’s control.

On November 21, IAM filed the declarations of seven of

its officers describing its compliance with the TRO. On the

following day, United filed a motion seeking to hold IAM in

contempt of the TRO. On November 27, the parties held a

telephonic conference with the district court, during which

the court instructed United to identify particular individuals

who United felt were continuing to act in appropriately, and

to inform IAM of who, when, and where such inappropriate

actions were taking place in order to facilitate IAM’s efforts

to implement the TRO. The court also admonished IAM to

“do all in its power . . . to effectuate the stoppage of any work

action by the mechanics,” and to “take appropriate aggressive

actions in those instances where the company has pointed out

continued work actions are taking place.” Shortly thereafter,

United supplied IAM with the names of 144 mechanics

° United claims that IAM posted the TRO only on their websites, that

they did not direct member mechanics to cease all slowdown activity and

all communications encouraging such activity upon pain of fine,

suspension or other sanction by IAM, that the website bulletin that [AM

did release implicitly encouraged continuation of the slowdown (by

stressing the continued need for mechanics to observe all safety

regulations), and that the two local lodge officers who issued notice of the

TRO expressed contempt for it. For its part, [AM claims that it personally

served every mechanic with a copy of the TRO within days of its

issuance, that it immediately posted notice of the TRO on its website and

on union-maintained bulletin boards, that its website notice did urge

compliance with the TRO (and that its reference to the district court’s own

language stating that the TRO was not meant to impede the mechanics’

compliance with safety regulations was not a signal for a further

slowdown), and that Union representatives notified mechanics at stations

throughout the county of the need to comply with the TRO.

13a

whom it believed were performing an excessive number of

write-ups and identified stations that were suffering a

disproportionate number of problems. United asked IAM to

counsel the mechanics that it had identified. It also requested

the IAM officers who are individual defendants in the case to

conduct personal briefings at each work location to “explain

what the TRO and status quo means,” “explicitly explain that

all slowdown messages are no longer valid,” and to “convey

with absolute sincerity and commitment that they IAM will

abide with the TRO.” United also asked IAM to remove all

materials encouraging the slowdown (including the original

IAM bulletin announcing the TRO), and to post the TRO

along with two letters from Ford on all bulletin boards. In

addition, on November 30, United’s counsel told IAM’s

counsel that United had incurred $66 million in damages due

to the mechanic slowdown since the issuance of the TRO.

Immediately thereafter, the situation began to improve.

Between December | and 10: (1) the number of write-ups

dropped to an average of 1,306 per day; (2) the number of

out-of-service aircraft decreased to less than 30 per day; (3)

the percentage of flights delayed for mechanical reasons

dropped to 6.5 percent; and (4) the percentage of main-

tenance-related flight cancellations dropped to an average of

2.2 percent. These numbers reflected measurable improve-

ment from the levels in place from November 18-30, although

they remained significantly higher than historical levels in all

categories. Once again, the parties provide conflicting

explanations for this turn of events. United argues that the

improvement was caused by IAM’s belated efforts to abide

by the TRO by aggressively discouraging its members from

engaging in a work slowdown. IAM counters that the

amelioration was due mainly to United’s long overdue efforts

to address the situation through its own management by

terminating, disciplining, or at least counseling some

individual mechanics whom it believed were responsible for

l4a

the claimed slowdown.’ IAM also argued that the

improvement could be explained, at least in part, by the

recent actions that United took against a rival union’s®

website which had been attacking the IAM and expressly

calling for a work slowdown among United mechanics.

IAM moved to vacate the TRO on grounds that it did not

comply with the procedural requirements of the Norris-

LaGuardia Act (“NLGA”). On December 7, 2000, the court

denied IAM’s motion, but dissolved the TRO sua sponte,

stating that there was some proof that the issuance of the

TRO “caused some activity on the part of the Union, but at

the same time it caused a reaction by those persons who may,

as has been alleged, be beyond the control of the Union.” The

7 IAM contends that United never took any such actions until after the

November 27 conference with the court. IAM claims that the November

10 letter from Studdert to Ford was the first time that United had accused

IAM of encouraging a slowdown (indeed, at a meeting one week before

the letter, IAM claims that United complimented IAM for “keeping the lid

on,” or for preventing job actions by its members during the tense

negotiations). IAM also claims that United gave it specific evidence and

the names of individual mechanics engaged in the slowdown only after

the November 27 conference, and that IAM later discovered that almost

none of those individuals had been disciplined or even counseled by

United before United filed suit. United claims that it did discipline

hundreds of employees (and fired some) long before filing suit, and that

these efforts had little effect in curbing the slowdown until IAM finally

got serious about implementing the TRO). It also claims that it had several

conversations with IAM about the problem before the Studdert letter

(noting that the letter references earlier conversations between United and

IAM about the slowdowns).

® IAM noted that mechanics who supported the rival union had called

for work slowdowns and refusals to work overtime publicly and in writing

immediately after United announced its plans to acquire U.S. Airways

(a decision vigorously opposed by many United mechanics), and

criticized IAM for refusing to do the same. Further, the mechanics

supportive of the rival union staged what United believed was a “sick out”

in several locations immediately after July 12. After United fired 1 lof

these employees, and disciplined 11 others, the sick out ended.

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15a

Court also found that “at this point . . . neither party should

perceive any advantage by the issuance of the [TRO],”and

that “the compulsive reasons for the issuance of the [TRO]

have now subsided. . . .” The court then stated:

I think the urgency of the [TRO] in the court’s mind was

because of the pending travel over the Thanksgiving

holidays and also what the court perceived, based upon

the information the court had then, was perhaps some

activity on the part of the Union if not actively

attempting to curtail that activity, maybe in a somewhat

covert manner to encourage that activity. I think that the

allegation of that activity has clearly been dissipated at

this point in the court’s mind based upon the

submissions of the parties that I have received since the

order has been in effect . . . . [B]Jased upon the

information that I have received, the [TRO] has been

somewhat ineffective in requiring the mechanics to do

their jobs appropriately without false claims of safety

issues in order to undermine the ability of United to

service its customers.

The court noted that a hearing on United’s motion for a.

preliminary injunction was set for December 13, and it opined

that not having the TRO in effect during that period would

“give the court an opportunity to view without the order in

place the activities of the parties,” thereby providing “some

guidance as to its findings as to whether or not a preliminary

injunction should issue.”

After hearing oral argument from the parties, the district

court denied United’s motions for contempt and for a

preliminary injunction without written opinion. In denying

the motion for contempt, while the court found that the Union

did not “immediately do all actions which ultimately were

done,” and that the manner of its initial posting of the TRO”

perhaps was not the most effective way to garner

acquiescence and compliance with the order,” the court found

16a

that these failings did not rise to the level of contempt and

that the Union eventually” complied not only with the intent

but with the letter of the [TRO] by taking those actions which

they thought were prudent and escalating those actions when

it appeared that they were not effective.” The court also stated

that” the facts in this case have convinced the court that there

are some members of [I[AM]’s union who despite their best

efforts have continued to, and perhaps will continue to, act

inappropriately and to do these job actions which are not

proper.” In denying the preliminary injunction, the court

stated: I think that there is somewhat of a mob mentality out

there somewhere where people believe as long as we act in

concert and groups we are all safe by the fact that no one can

be identified, singled out, and held to pay the consequences of

their actions . . . . [T]hose persons being identified and

subjected to immediate consequences I think is the best way

and maybe the only way to insure that the majority of the

members of the union continue to act appropriately in this

case. I find that this is a much more effective way to control

that membership than it is for the court to issue an order

telling people to do what they are legally obligated to do

under the various statutes that control this situation.

United has appealed the district court’s denial of its motion

for preliminary injunction, arguing that the district erred both

legally and factually in refusing the injunction on the ground

that United could more effectively end the slowdown by

disciplining and/or terminating those individual mechanics

responsible. IAM argues that the district court correctly

perceived that the NLGA precluded the injunction unless it

would have been the “sole, effective means” of solving the

problem, and that the court correctly found that such was not

the case here. In addition, IAM argues that §§ 106, 107(a),

and 108 of the NLGA barred the injunction, because there is

no “clear proof’ that the IAM authorized, encouraged or

ratified the slowdown, and because United did not make

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17a

“every reasonable effort to resolve the dispute” before

seeking the injunction.

DISCUSSION

In reviewing the denial of a preliminary injunction, we

review the district court’s findings of fact for clear error, its

balancing of the factors for a preliminary injunction under the

abuse of discretion standard, and its legal conclusions de

novo. See Kiel v. City of Kenosha, 236 F.3d 814, 815 (7th

Cir.2000) (citation omitted); Teamsters Local Unions Nos. 75

and 200 v. Barry Trucking, Inc., 176 F.3d 1004, 1011 (7th

Cir.1999). We accord substantial deference to the trial court’s

decision because we “recognize the advantage of the trial

court’s proximity to the evidence.” See Teamsters, 176 F.3d

at 1011. Therefore, we will not find a district court’s factual

finding clearly erroneous if it is “plausible in light of the

record viewed in its entirety,” even if we would have

“weighed the evidence differently’ and reached the opposite

conclusion.” See Air Line Pilots Ass’n Int'l v. United Air

Lines, Inc., 802 F.2d 886, 891 (7th Cir.1986) (citation

omitted) (““ALPA”). However, the lower court necessarily

abuses its discretion when it commits an error of law, see

MacDonald v. Chicago Park District, 132 F.3d 355, 357 (7th

Cir. 1997) (citation omitted), and a decision to deny a

preliminary injunction that is premised on an error of law is

entitled to no deference and must be reversed. See, e.g., Delta

Air Lines, Inc. v. Air Line Pilots Ass’n Int'l, 2001WL 42399,

*5 (11th Cir. 2001) (citations omitted).

The RLA was enacted, among other reasons, “[t]o avoid

any interruption to commerce or to the operation of any

carrier engaged therein,” and “to provide for the prompt and

orderly settlement of all disputes concerning rates of pay,

rules, or working conditions.” 45 U.S.C. § 151a. The intent of

the RLA is “to encourage collective bargaining by the parties

‘in order to prevent, if possible, wasteful strikes and

interruptions of interstate commerce.’ ALPA, 802 F.2d at

18a

895 (quoting Detroit & Toledo Shore Line R.R. v. United

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

To effectuate these purposes, 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. sec. 152, First. This duty runs

both to management and to labor, and it has been described as

the “heart” of the RLA. See Brotherhood of R.R. Trainmen v.

Jacksonville Terminal Co., 394 U.S. 369, 377-78 (1969).

Moreover, the duty to exert every reasonable effort to make

and maintain agreements is a substantive legal duty which is

enforceable by the courts. Chicago & N.W. Ry. Co. v. United

Transp. Union, 402 U.S. 570, 577 (1971) (“[W]e think it

plain that [45 U.S.C. sec. 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.”’)

The RLA sets forth a detailed sequence of steps that

carriers and their employees (or their employees’ repre-

sentatives) must follow in negotiating CBAs. First, the party

seeking a change in rates of pay, rules or working conditions

must give notice and confer with the other party. 45 U.S.C.

§ 156. If the parties remain unable to resolve their dispute

after this conference, either or both of them may seek

mediation by the NMB. See 45 U.S.C. § 155. If the mediation

fails to produce agreement, the NMB must attempt to

persuade the parties to submit to binding arbitration. If either

or both of the parties rejects the offer of arbitration and the

dispute threatens” substantially to interrupt interstate

commerce to a degree such as to deprive any section of the

country of substantial transportation service,” the NMB must

contact the President who may then create an emergency

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19a

board to “investigate and report respecting such dispute.”

45U.S.C. § 160. If the NMB releases the parties from

mediation before an agreement has been reached, the RLA

imposes a 30-day “cooling-off’ period upon the parties.

Throughout this entire lengthy negotiation process, carriers

and unions are required to maintain the status quo with

respect to rates of pay, rules, and working conditions. See 45

U.S.C. §§ 155, 156. The status quo provisions are “central” to

the RLA’s design, see Shore Line, 396 U.S. at 150, and they

“must be read in conjunction with the implicit status quo

requirement in the obligation imposed upon both parties by

[§ 152], First ‘to exert every reasonable effort’ to settle

disputes without interruption to interstate commerce” as part

of an” integrated, harmonious scheme for preserving the

status quo from the beginning of a major dispute through the

final 30-day ‘cooling-off’ period.” /d.at 151, 152. If either

side unilaterally alters the status quo during the bargaining

and mediation process, a court may issue an injunction to put

a stop to that party’s illegal self-help and to restore the status

quo, and it may do so even without the traditional showing of

irreparable injury to the other party. See Consol. Rail Corp. v.

Ry. Labor Executives’ Ass’n., 491 U.S. 299, 303(1989). This

rule authorizes courts to enjoin not only strikes but also

“union conduct . . . which has the consequences of a strike,”

such as refusal of overtime, slowdowns, and sit-ins. See

generally ALPA, 802 F.2d at 906 (citation omitted).

However, when a carrier seeks an injunction against a

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

NLGA to determine whether the court has jurisdiction.” See

Delta Air Lines, 2001 WL 42399 at *4. As a general rule the

NLGA strips courts of jurisdiction to enter injunctions against

labor unions incases growing out of labor disputes,”

express[ing] a basic policy against the injunction of activities

of labor unions.” See Int’l Ass’n of Machinists v. Street, 367

U.S. 740, 772 (1961). The NLGA also provides that “no

injunction or temporary restraining order shall be issued on

20a

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. § 107(a), and that”[nJo . . . organization

participating or interested in a labor dispute 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.”

29 U.S.C. § 106. In seeking to accommodate the conflicting

provisions of the RLA and the NLGA, the Supreme Court has

held that where a challenged action violates specific

provisions of the RLA (such as the status quo provision of

45 U.S.C. § 152, First), “the specific provisions of the [RLA]

take precedence over the more general provisions of the

[NLGA],” see Pittsburgh & Lake Erie R.R. Co. v. Ry. Labor

Executives’ Ass'n, 491 U.S. 490, 513 (1989) (quotation

omitted); see also Chicago & North Western Ry., 402 U.S. at

581; Brotherhood of R.R. Trainmen v. Chicago River &

_Indiana R.R. Co., 353 U.S. 30, 41-42 (1957), and courts can

issue injunctions to enforce the RLA provisions at issue

notwithstanding the NLGA.’ In other words, the Court has

carved out an exception from the NLGA’s general prohibition

on injunctive relief against union activity for violations of

specific provisions of the RLA. However, the Court has

stated that this exception is a limited one which applies only

* However, when a carrier seeks to enjoin a strike against a union under

the status quo provisions of the RLA, the procedural provisions of the

NLGA remain in effect. See Delta Air Lines, 2001 WL42399 at *7. For

example, a carrier seeking an injunction against a union must put on live

testimony with the opportunity for cross-examination, see 29 U.S.C.

§ 107, or there must at least be some equivalent guarantee of the reliability

of the evidence presented. See Delta, 2001 WL 42399 at *7. However, in

this case the parties stipulated to submit their case to the district court on

the written record (through affidavits and briefs) without live testimony,

Dec. 13 Trans. at 4, and IAM has not raised any issue of its right to cross-

examination either here or below. Thus, the issue is waived.

2la

if. an injunction is the “only, practical, effective means of

enforcing the duty to exert every reasonable effort to make

and maintain agreements,” see Chicago & North Western Ry.,

402 U.S. at 583, or if “that remedy alone can effectively

guard the plaintiff’s right.” Jd. at 582 (quotation omitted).

United argues that the district court misapplied the law and

abused its discretion in denying its motion for a preliminary

injunction under the RLA. First, United contends that since

the court found that some of its mechanics were engaging in a

concerted job action (that is, a deliberate slowdown) during

the mediation process, United was entitied under the RLA to

an injunction ordering the union to make every reasonable

effort to stop the slowdown even if it could not be determined

whether the injunction against the union would have been

entirely effective in ending it. Therefore, United asserts that

the district court erred as a matter of law when it decided not

to issue the injunction solely on the ground that it would be

more “effective” for United to address the problem by

disciplining or firing the individual workers who were

responsible for the slowdown. IAM counters that, given the

proscriptions of the NLGA, status quo injunctions can only

issue against a union when the injunction would be the “only

practical, effective means” of enforcing the RLA, and that the

district court was therefore required to inquire into the

effectiveness of the injunction, and to deny it once it

legitimately concluded that United could more effectively

address the problem through management efforts.

We agree with United. While it is true that, given the goals

of the NLGA, courts should hesitate to issue an injunction

unless it is the “sole effective means,” to address the RLA

violation, [AM cites no authority (nor have we found any) for

the proposition that a district court must deny a preliminary

injunction against a recognized violation of a specific

provision of the RLA by union members if it determines that

the employer could “more effectively” curb the violation by

22a

directly disciplining or terminating individual employees.

Indeed, such a suggestion runs counter to the spirit of the

RLA’s status quo provisions. As noted, those provisions

impose an affirmative legal duty upon both employers and

unions alike—which is enforceable by the courts—to

preserve the status quo during the bargaining and mediation

process imposed by the RLA. A union has the affirmative

duty under the status quo provisions of the RLA to exert

every reasonable effort to prevent or discourage a strike or a

concerted work action like the slowdown in this case. See,

e.g., Delta Air Lines, 2001 WL 42399at *6; see generally

Shore Line, 396 U.S. at 152-53. Once a court determines that

such a concerted work action is occurring in violation of the

RLA, an injunction can issue ordering the union to observe its

statutory duty by trying to stop it. See, e.g., Delta 2001 WL

42399 at *6. Whether United can diminish or even stop the

work slowdown through its own actions has nothing to do

with the IAM’s enforceable duty to do everything reasonable

to end it. To hold otherwise would be to deny the union’s

independent obligations under the RLA. This is not to say,

however, that the limitations placed upon the issuance of

injunctions against unions which violate their status quo

obligations under the RLA cases are insubstantial. It remains

true that courts should only enjoin such violations when the

injunction would be the “sole practical, effective means of

enforcing the duty to exert every reasonable effort to make

and maintain agreements.” This clearly implies that where

there are other effective means available to accomplish that

end, injunctions should not issue. However, requiring United

to take efforts to end the slowdown would not be an

“effective means” of enforcing IAM’s duty to “exert every

reasonable effort to make and maintain agreements”; rather, it

would be requiring United to assume IAM’s duty altogether.

Indeed, if we were to accept the premise that a carrier’s

ability to fire or discipline individual employees is an

“effective” remedy for a union’s status quo violations, a

23a

Status quo injunction could never issue against a union, since

in virtually every case an employer presumably could take

some such measures. Such an interpretation would eviscerate

the status quo provisions of the RLA. Therefore, we find that

the district court’s decision in this case was not justifiable,

much less mandated, by the NLGA. To the extent that the

district court may have concluded otherwise, it erred as a

matter of law.'°

For similar reasons, we also reject IAM’s argument that § 8

of the NLGA bars United from seeking injunctive relief in

this case. That section provides:

No restraining order or injunctive relief shall be granted

to any complainant who has failed to comply with any

obligation imposed by law which is involved in the labor

dispute in question, or who has failed to make every

reasonable effort to settle such dispute either by nego-

tiation or with the aid of any available governmenial

machinery of mediation or arbitration.

' The cases cited by IAM on this point do not compel a different

conclusion. In /nt’l Ass’n of Machinists v. Street, 367 U.S. 740 (1961), the

Court overturned a blanket injunction brought by railway union members

to enjoin their union from violating the RLA by spending funds exacted

from union members on political causes, where the injunction restrained

the union from collecting any funds from the objecting members. The

court held that, because this injunction was overbroad (that is, because the

plaintiff’s rights could be effectively vindicated by a more narrowly

tailored injunction) it was not the only effective remedy available, and

was therefore impermissible under the NLGA. The Court remanded for

the district court to impose a more narrowly tailored remedy, suggesting

that a narrower injunction would be appropriate. In Chicago & North

Western R.R. Co., 402 U.S. 570 (1971), the court reversed a lower court’s

determination that sec. 152, First was not a legal obligation enforceable

against a union by injunction, and remanded for the lower court to

determine whether a strike injunction sought by the carrier in that case

was the “only practical, effective means” of enforcing that section of the

RLA. Neither case stands for the proposition that a court must deny an

injunction against an illegal work action if it appears that the carrier could

more effectively address the problem through management.

24a

29 U.S.C. § 108. This section is applicable to injunctions

sought by carriers against unions under the status quo

provisions of the RLA. See generally ALPA, 802 F.2d at 900,

905-06. By its terms, this “clean hands” provision precludes a

carrier involved in a labor dispute with a union from

obtaining injunctive relief when the carrier has either: (1)

violated a legal obligation with respect to the labor dispute in

question; or (2) failed to make every reasonable effort to

settle the labor dispute either through negotiation, mediation,

or arbitration. See Brotherhood of R.R. Trainmen Enterprise

Lodge, No. 27 v. Toledo, P. & W.R.R., 321U.S. 50 (1944)

(holding that, while the RLA does not require either party to a

major labor dispute to submit to arbitration, a carrier who

refuses this available avenue for settlement cannot obtain

injunctive relief under the status quo provisions).

IAM argues that United did not make every “reasonable

effort to settle” the dispute in this case, claiming that United

made virtually no attempt to resolve the slowdown through

negotiations with LAM before it filed suit. [AM claims that

Studdert’s November 10 letter to Ford was the first and only

time that United mentioned the problem to IAM officials

before seeking the injunction, and that the letter was in fact

sent immediately after United had thanked IAM for “keeping

the lid on” and averting serious work actions during a tense

period of negotiations. United disputes these assertions, but

we need not credit United’s version of the story to dispose of

IAM’s claim. Section 8 requires a party to a labor dispute to

“exert every reasonable effort” to settle the labor dispute in

question (through negotiation, mediation or arbitration)

before seeking to enjoin an action by the other party which

relates to the dispute. It does not require a party who is

already engaging in good-faith effort to settle the labor

dispute through negotiation, mediation, or arbitration to

“exert every reasonable effort” to prevent or end an unlawful

strike or work action before seeking judicial relief. Indeed,

requiring a carrier to seek a negotiated solution before

25a

moving to enjoin an illegal work action would enable unions

to use such actions to extort concessions from the carrier

during the negotiation process. Such a result would render the

union’s duty under 45 U.S.C. § 152, First a nullity, and would

run directly contrary to the policy rationales of the RLA’s

status quo provisions. If [AM had demonstrated that United

had either violated its own status quo obligations (or some

other duty under the labor laws) or had failed to pursue all of

the available channels of negotiation, mediation, and

arbitration provided under the RLA, then it would have a

stronger case for barring the injunction under §8 of the

NLGA. However, as IAM has not made any such contention,

we must reject its argument under sec. 8."

Moreover, it seems clear in this case that an injunction

would be the “sole, effective means” of enforcing the [AM’s

duties under the status quo provisions of the RLA. The

district court concluded that a number of United mechanics

were engaging in a deliberate and unlawful slowdown (or that

'' We should note, however, that even if IAM had demonstrated some

such action on United’s part, it still might not be able to block United

from obtaining the injunction it seeks. We have not read § 8 of the NLGA

as forming an absolute bar to injunctive relief against status quo violations

when the party seeking the injunction has violated either its own status

quo obligations or some other legal obligation. See ALPA, 802 F.2d at

901. Rather, we have “weigh[ed] the competing equities to determine

whether applying section 8’s bar to injunctive relief would serve to further

underlying purposes of both the RLA and the [NGLA].” In so doing, we

have expressly noted that the imperatives of the RLA may over-ride sec.

8, and that a party’s lack of “clean hands” under sec. 8 “may be overcome

by a balancing of the interests, particularly where it is the public interest

involved.” See Jllinois Central R.R. Co. v. Brotherhood of R.R. Trainmen,

398 F.2d 973, 976 (7th Cir. 1968) (quotation omitted). While we do not

decide the matter, we note that United could make a strong argument here

that both the balancing of hardships and the public interest weigh in favor

of the issuance of the injunction in this case, and that therefore the

injunction could have been granted even if United had violated § 8 of the

NLGA.

26a

a number of mechanics were “do[ing] job actions which are

not proper” and acting “in concert” or in a” mob mentality”).

This unilateral resort to self-help on the part of union

members puts severe economic pressures on United, thereby

undermining its bargaining position during the period of

negotiation and mediation. This is precisely the kind of action

that the RLA status quo provisions seek to prevent, and we

cannot conclude that other remedies, short of an injunction,

would be effective in doing so. Cf. Jnt’l Ass'n of Machinists

& Aerospace Workers v. Transportes Aereos Mercantiles Pan

Americandos, S.A., 924 F.2d 1005, 1011 (11th Cir. 1991).

IAM also argues that sec. sec. 6 and 7(a) of the NLGA

prohibit the issuance of a preliminary injunction against it.

Section 7 limits the jurisdiction of the federal courts to issue

injunctions in cases involving or growing out of a labor

dispute, and subsection (a) provides in part that “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.”

29 U.S.C. § 107(a). Section 6 provides in part that “no

association or organization participating or interested in a

labor dispute shall be held responsible or liable in any court

of the United States for the unlawful acts of individual

officers, members, or agents, except upon clear proof of

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

of ratification of such acts after actual knowledge thereof.”

29 U.S.C. § 106. In ALPA, we ruled that a carrier could not

establish that a union had committed a status quo violation by

means of an orchestrated “sick-out” without proving by clear

and convincing evidence that the union had promoted the

alleged sick-out, and that statistical evidence showing that

pilots had taken twice their usual number of sick days during

the relevant time period was insufficient by itself to implicate

the union under this “clear proof” standard. See ALPA, 802

27a

F.2d at 905-06. IAM argues that, even if some United

mechanics were engaging in a work slowdown, United has

not offered “clear proof’ that IAM authorized or ratified the

slowdown. IAM maintains that it had repeatedly counseled its

mechanics not to engage in any job action, and that many of

the “work safe” bulletins and flyers that United offered as

evidence of a concerted slowdown were written not by IAM

but by “strident opponents” of IAM (i.e., by mechanics or

others who were sympathetic with a rival union and hostile to

IAM). IAM also asserts that any “work safe” language

appearing in those bulletins that it did publish meant only

what it said and was intended innocently. For example, IAM

claims that the “work safe” language contained in the District

141-M bulletin of October 13 was inserted in response to

United’s concerns regarding recent workplace accidents.

Moreover, IAM contends that the increases in write-ups and

other maintenance-related anomalies experienced by United

could have been caused by only a “few dissident mechanics.”

We find that United has offered enough “clear proof” of

IAM’s involvement in the work slowdown to satisfy the

standard of § 6. While it is true that statistics alone will not

provide clear proof of a union’s involvement in a work

action, United did not rely on statistical evidence alone. In

fact, it presented evidence of the kind that we have expressly

suggested would establish a union’s responsibility for

authorizing or ratifying a work action under § 6. See ALPA,

802 F.2d at 905. United produced a number of IAM bulletins

which included prominently displayed exhortations to “work

safe.”” Moreover, United produced testimony from some of its

maintenance officials that a union’s suggestions to its

mechanics to “work safe” or to “work by the book” are

commonly recognized signals among union mechanics for a

work slowdown. IAM has not challenged this testimony, and

courts have found similar language to be “codes” for job

actions. See, e.g., The New York Times Co. v. Newspaper &

Mail Deliverers Union, 740 F. Supp. 240, 244 (S.D.N.Y.

28a

1990) (finding that a union chapel chairman’s directive to

members to “adhere to strict contractual requirements in

making their deliveries” was a call for a “slowdown from

normal operations’’); Tex. Int'l Airlines, Inc. v. Air Line Pilots

Ass’n Int'l, 518 F. Supp. 203, 210-11 (S.D. Tex. 1981)

(finding that council chairman’s letter to union members

advising them to “adhere to company policies, and con-

tractual agreements”; “not to neglect even the most minor

write ups”; . . . and “to check every item on the checklists”

was sent with the understanding that pilots would interpret it

as a call for a slowdown). Further, while [AM claims that it

did not publish many of these bulletins, it admits to

publishing some of them (for example, the District Lodge

141-M bulletin published on October 13, and the October 19

bulletin issued by Local Lodge 2294 in Indianapolis). IAM

-offers no satisfying explanation for why these bulletins

included—indeed, trumpeted—the message to WORK SAFE!

in the context of blaming United for the lack of progress in

the negotiations or of criticizing United for its recent

oppressive management actions. Nor does IAM explain why

the language telling mechanics to “work safe” was the only

language written in bold face, underlined, or in all capital

letters. While some of these bulletins also contain statements

urging members not to “engage in any job action,” such

statements are dwarfed by the messages to “work safe,”

leaving the clear impression that the relatively inconspicuous

statements discouraging a slowdown were not meant to be

taken at face value. Given the context in which the “work

safe’ messages appeared and the prominent nature of their

display, their obvious intent was to urge mechanics to engage

in a work slowdown in response to the impasse in

negotiations. In addition, given that IAM does not deny that

such language can serve as a code for a slowdown, we find it

difficult to believe that LIAM would have included such

language in the context of bulletins regarding negotiations

(especially at a time when it claims that bulletins bearing the

29a

same code language were being distributed by dissident

mechanics as a call for a slowdown) unless it intended to

signal the mechanics to engage in a slowdown.

In addition, although it denies responsibility for their

authorship, IAM does not satisfactorily explain how even

more suspicious bulletins came to be distributed in three

United maintenance centers in late October or early

November, at least one of which was placed in a locked IAM

bulletin board. These bulletins were issued under the

headings “Negotiations 2000,” “Millennium Negotiations,”

and “Lodge 1781 Strike Committee,”'” and they each urged

mechanics (in virtually identical language) to clean their

boxes and tools “daily” and to “shut down and fix” anything

that isn’t safe, in keeping with the “safety first ideal.” This is

exactly the kind of evidence that we have suggested could

provide “clear proof’ of a union’s authorization of a

slowdown. See ALPA, 802 F.2d at 905 (suggesting that

Statistical evidence of a sick-out plus, inter alia, “a notice

posted on a union bulletin board” could indicate union

involvement in a sick-out under §6) (discussing Pan

American World Airways, Inc. v. Independent Union of Flight

Attendants, 93 Lab. Cas. (CCH) 94 13,307, 20,035 (S.D.N.Y.

'? The latter bulletin bore a cartoon of a wolf and stated “Wolf, play it

safe, negotiate,” and it purported to be from a committee that IAM claims

does not exist. Third Supp. Dec. of Ford at para. 4. Steve Wolf was the

former CEO of United (in the early 1990's). /d.; Dec. 13 Trans. at 43.This

arguably suggests that the “wolf” bulletin was created several years ago,

and not in connection with the events at issue in this case. Moreover, as

. IAM notes, United Vice President of Line Maintenance William Norman

admitted in his deposition that he did not know whether IAM actually

published this bulletin, or when it was published. Norman Dep. at 81-82.

However, even assuming that this bulletin was published in the early

1990’s, [AM has not explained how it came to be recirculated in October

and November of 2000, nor has it explained why a bulletin with a

substantially identical message (and without any reference to Wolf)

appeared simultaneously in a locked IAM bulletin board at another

location.

30a

July 20, 1981) (finding evidence of union involvement in a

sick-out sufficient to support an injunction where, inter alia,

the union did not take sufficient steps to disavow a planned

sick-out by its members and where an unsigned notice

reporting on the negotiations and indirectly calling for the

sick-out was posted on a locked union bulletin board to which

only the union had access)). When this evidence is considered

alongside United’s compelling statistical evidence, which

suggests that the work slowdown began to abate just as IAM

stepped up its efforts to discourage it in late November,

IAM’s involvement in the slowdown becomes all the more

apparent. Thus, while it is not clear that the district court

found that IAM had not authorized the slowdown,”° even if it

did, we would find such a finding clearly erroneous.

Finally, IAM argues that even if the NLGA did not dictate

the result reached by the district court, the court nevertheless

had the discretion under traditional principles of equity to

deny the injunction—notwithstanding the provisions of the

RLA—if it found that the injunction would not effectively

provide United with the relief it sought. See, e.g., Virginian

Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 550 (1937). IAM

contends that the district court found that the injunction

would be ineffective after carefully considering the record

evidence, which suggested that the TRO had been relatively

ineffective in restoring the status quo and that the situation

'? TAM claims that in dissolving the TRO, the district court found that

IAM was not responsible for the alleged slowdown when it stated that the

initial “allegation” that the IAM was covertly encouraging the slowdown

had “clearly been dissipated . . . .” However, read in context, this

statement seems to indicate that the district court believed that IAM was

no longer encouraging the slowdown (after the TRO had been issued), not

that it never had encouraged it. Some statements that the court made

during the December 13 hearing on the preliminary injunction do suggest

that the court believed that certain union members were engaging in a

wildcat work action, “despite [I[AM]’s best efforts.” However, it is far

from clear that the court actually made a finding on this issue.

3la

had not worsened appreciably for United once the TRO was

dissolved. Therefore, IAM maintains that the district court’s

factual finding that the injunction would be similarly

ineffective was not clearly erroneous, and must be affirmed.

We reject this argument. The record does not support an

inference that the injunction would be ineffective. To the

contrary, the statistical evidence before the district court

suggested that, while the TRO did not succeed in bringing the

rates of write ups, planes held out of service, and

maintenance-related cancellations and delays to historical

levels, it did have a substantial positive effect after the IAM

sought to implement it more aggressively. We find IAM’s

contention that this positive effect was due solely to United’s

belated efforts to counsel and to take disciplinary action

against offending mechanics unpersuasive in light of United’s

submissions that it did take such actions earlier, and that such

actions had little effect. Moreover, even assuming that

United’s management efforts were partly responsible for the

positive trend (which, we note, the district court did not

expressly find), we find no plausible basis for the conclusion

that an injunction against the union would not have an

additional positive effect. Even if we were to agree that

United could achieve favorable results by disciplining

individual mechanics, the evidence suggests that it could

achieve even more favorable results if, in addition, the

injunction were in place. Given all of this, and considering

that in issuing the TRO the district court found that the

traditional equitable factors—including the balance of

hardships and the public interest--weighed in favor of

granting the injunction and that it never expressly found to

the contrary, we see no equitable reason to withhold

injunctive relief in this case.’

'* TAM argues that an injunction would not be the most effective means

to “address conduct of mechanics engaged in safety sensitive work,” to”

address conduct that is intertwined with constitutionally protected

32a

Moreover, we note that the district court did not expressly

find that the injunction would be wholly ineffective. Rather,

in dissolving the TRO it found that the TRO had been

“somewhat ineffective,” and in denying United’s motion for a

preliminary injunction it found merely that it would be “more

effective” for United to try to resolve the problem through

management. This latter finding seems to be the basis for the

court’s decision, and the court unfortunately provided very

little support for the finding. In any event, we hold that the

court misapplied the law in basing its decision on such a

finding. The court concluded that some United mechanics

were engaging in a work slowdown in violation of the RLA,

and as we have already demonstrated, the evidence

established [AM’s involvement in the illegal slowdown. As

we have noted, under these circumstances a court may issue

an injunction against a union as the “sole, effective means” of

enforcing the union to observe its obligations under the

RLA’s status quo provisions, and a carrier’s efforts to solve

the problem through management are no substitute for

judicial enforcement of the union’s independent obligations.

speech,” or to “address the problem of dissident mechanics.” We are not

persuaded. First, courts have enjoined illegal work actions undertaken

under the guise of safety, see, e.g., Long Island R.R. Co. v. Sys. Fed’n No.

156, 368 F.2d 50, 52 (2d Cir. 1966), and [AM offers nothing to suggest

that courts could not frame injunctive orders carefully to ensure that

legitimate safety inspections are not compromised. (Indeed, the district

court in this case did just that with respect to the TRO). In addition,

enjoining a union from encouraging illegal job actions (or forcing it to

discourage such action) during the limited period of negotiation and

mediation would not intrude on constitutionally protected speech, as it

would leave the union free to criticize the company’s bar-gaining position.

Finally, we reject IAM’s argument that the injunction would be

ineffective because the slowdown was caused by dissident mechanics,

both because we find that the evidence establishes IAM’s involvement,

and because the statistical evidence strongly suggested that IAM’s efforts -

to implement the TRO in late November were having an appreciable

effect on the slowdown.

33a

See National Airlines, Inc. v. Int’l Ass'n of Machinists and

Aerospace Workers, 416 F.2d 998, 1006 n.7 (Sth Cir. 1969)

(stating that “[t]he primary responsibility for ending [a] strike

{in violation of the RLA] rest[s] in the district court’).

Therefore, by denying an injunction againsi [AM’s illegal job

action solely on the grounds that the problem could be more

effectively addressed by United, the court denied United a

judicial remedy to which it was entitled under the RLA and

erred as a matter of law.

CONCLUSION

We have considered IAM’s other arguments, and find them

meritless. For the foregoing reasons, we REVERSE the

decision of the district court, and REMAND with instructions

to enter the preliminary injunction against IAM and to fix a

date for trial on the issue of a permanent injunction in as

short a time as is reasonably possible. REVERSED and

REMANDED.

34a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT j

NORTHERN DISTRICT OF ILLINOIS

| EASTERN DIVISION

Docket No. 00 C 7265

Chicago, Illinois

UNITED AIR LINES, INC.,

Plaintiff,

Vv.

INTERNATIONAL ASSOCIATION of MACHINISTS

and AEROSPACE WORKERS, et ai.,

Defendants.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE WILLIAM J. HIBBLER

PRESENT:

For the Plaintiff: ROBERT A. SIEGEL

O’MELVENY & MYERS LLP

400 South Hope Street

Los Angeles, California

9007 1-2899

TOM A. JERMAN

O’MELVENY & MYERS LLP

555 13th Street, N.W.

Washington, D.C. 20004

ANDREW S. MAROVITZ

Mayer Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

JENNIFER A. COYNE

UNITED AIR LINES, INC.

Post Office Box 66100

Chicago, Illinois 60666

35a

Present: (Cont ‘d)

For the Defendant: IRVING M. FRIEDMAN

MICHAEL B. ERP

KATZ, FRIEDMAN, SCHUR &

EAGLE

77 West Washington Street

Chicago, Illinois 60602

ROBERT A. BUSH

IRA L. GOTTLIEB

GEFFNER & BUSH

3500 West Olive Avenue

Burbank, California 91505-

4657

Court Reporter: Lois A. LACORTE

219 South Dearborn

Chicago, Illinois 60604

[4]

THE CLERK: 00 C 7265, United Air Lines v International

Association of Machinists, hearing.

* * * *

THE COURT: Thank you.

Let me deal first with the contempt motion which is

pending before this court. Upon the issuance of the temporary

restraining order on the 17th of November, clearly, there was

a discussion before the court in which the court was apprised

of one difficulty with the restraining order, which was

brought to the court’s attention by the defense, that the order

in its original form might be confusing to the membership in

terms of chilling their desire to do their jobs in a normal way,

which might include finding safety violations which they

were then perplexed as to whether or not they could continue

36a

to note those violations without appearing to be in violation

of the restraining order. And I thought that that was a

reasonable concern.

Clearly, I think—and let me just say this in terms of [68]

the overall actions on the part of both sides—I think in times

of negotiations each side has shown a tremendous amount of

restraint. I think that is true of the airline because as I read the

various declarations and affidavits that were submitted to the

court and learned of certain terminations recently, those were

actions which in my mind certainly could have been taken by

management much sooner based upon the activity of

individual mechanics.

Once the temporary restraining order was issued, the court

finds that the Union did not immediately do all actions which

‘ultimately were done. I think that they did immediately post

the temporary restraining order. It was publicized that that

order required the mechanics to work in their normal fashion.

But the Union also notified their personnel that they felt that

the order might be inappropriately issued and that they would

be seeking relief from the order at some future date.

Clearly, that perhaps was not the most effective way to

gamer acquiescence and compliance with the order, but I

think they had reasons that were reasonable which required

that they say that in order to keep their membership advised

as to what they were doing as their representatives. I don’t

think it was as effective by including those two things

together as it would be to give information about the

temporary restraining order and separately advise regarding

other actions that they might be taking.

[69]

I don’t find doing it in the way which they did, I do not

find that there was any attempt to diminish or evade the

restraining order. I think it was a matter of doing it

expeditiously as opposed to perhaps doing it in a way that

37a

would most effectuate the restraining order. Subsequent to the

issuance of the restraining order, there was also discussions

before the court indicating that the Company had certain

suggestions which they would be making as to effectuate the

restraining order, and I believe based upon the submissions I

have, many of those suggestions not only were given to the

Union but were acted on by the Union.

Now, I do not find that it is incumbent upon the Union to

do everything that the Company asked them to do in exactly

the fashion that the Company asked them to do that. There is

a need, I think, for them to make independent judgments as to

what they can effectively do with their membership that

would not so undermine their relationship with their

membership as to cause them to become ineffective.

I also believe that the facts in this case have convinced the

court that there are some members of their union who despite

their best efforts have continued to, and perhaps will continue

to, act inappropriately and to do these job actions which are

not proper.

I don’t believe that the temporary restraining order or

human nature convinces me that there can be instantaneous

[70] absolutely compliance to the highest degree with such

orders. I think it is a process which must evolve. And I think

based upon the actions of the Union in this case that they

have complied not only with the intent but with the letter of

the temporary restraining order by taking those actions which

they thought were prudent and escalating those actions when

it appeared that they were not effective.

Although there was some delay, I do not find that that

delay was intended to undermine the temporary restraining

order, I do not find that their actions were in contempt of that

order, and therefore, the motion to hold the Union in

contempt for failure to comply with the temporary restraining

order will be denied.

38a

As to the motion for the preliminary injunction, again,

going back to what I believe is perhaps the most effective

way to deal with, I find, a certain element of the Union which

is resistant to leadership, I think those persons, as I suggested

previously, had to be identified, the Union needed to be

notified of who those persons were, and appropriate action

should be taken against the individuals who are continuing to

impact United in its ability to service its customers.

In all candor, I think there is somewhat of a mob mentality

out there somewhere where people believe as long as we act

in concert and groups we are all safe by the fact that no one

can be identified, singled out, and held to pay the [71]

consequences of their actions. Maybe the parties disagree, but

I think those actions in which certain individuals who have

been identified as writing up safety violations inappropriately

or failing to do them timely, those persons being identified

and subjected to immediate consequences I think is the best

way and maybe the only way to insure that the majority of the

members of the Union continue to act appropriately in this

case. I find that is a much more effective way to control that

membership than it is for the court to issue an order telling

people to do what they are legally obligated to do under the

consequences of their actions. Maybe the parties disagree, but

I think those actions in which certain individuals who have

been identified as writing up safety violations inappropriately

or failing to do them timely, those persons being identified

and subjected to immediate consequences I think is the best

way and maybe the only way to insure that the majority of the

members of the Union continue to act appropriately in this

case. I find that is a much more effective way to control that

membership than it is for the court to issue an order telling

people to do what they are legally obligated to do under the

various Statutes that control this situation.

I find in the court’s mind that there is no need for a

preliminary injunction in this case. It would certainly seem to

39a

the court that--and let me just make a point because I think it

is important. I do not believe that either side is motivated in

this case by anything other than their commitment to do what

is best for their respective client. I do not believe that this

action was brought by the Company in order to affect the

ongoing negotiations, but I think what happens is when

people get involved with such emotionally charged situations

where negotiations are underway, things get tense and people

look for ulterior motives for every action, and I just don’t

think they lie.

It seems to me at this point, as I suggested I was going to

do last week in eliminating the temporary restraining order,

[72] that there has been no detrimental impact, based upon

the court’s review of the materials that have been supplied,

based upon the dissolution of the temporary restraining order.

I see no purpose, as I was about to say, in a preliminary

injunction in this case because I think that the Union

understands its role in making sure that its membership

continues to work in an appropriate fashion. I think that both

sides are probably wise enough in negotiations to know that

any action of a precipitous nature by either side serves no

useful purpose in attempting to get the entire matter resolved

with a new contract, and therefore, the motion for a

preliminary injunction the court finds does not lie and that

motion likewise will be denied.

Yes, sir.

MR. SIEGEL: Your Honor, if I could just ask, I think I’m

compelled to ask, the Company may wish to take an

emergency appeal to the Seventh Circuit and I believe I’m

required to ask your Honor first if this court would be willing

to entertain any request for a short interim injunction pending

the completion of an expedited appeal.

THE COURT: I do not find that an interim injunction

would be appropriate, and so I will deny that request.

40a

MR. Thank you, your Honor.

x *k *k x

[73]

I certify that the above is a true and correct transcript of

proceedings had in the above-entitled matter.

/s/ Lois A. LaCorte

Lois A. LaCorte

4la

APPENDIX C

[Filed April 11, 2001]

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

No. 00-4220

UNITED AIR LINES, INCORPORATED,

Plaintiff-Appellant,

INTERNATIONAL ASSOCIATION OF MACHINIST AND

AEROSPACE WORKERS, ETC., et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois,

Eastern Division

No. 00 C 7265

ORDER

Before: Hon. WILLIAM J. BAUER, Circuit Judge, Hon. JOHN

L. COFFEY, Circuit Judge, Hon. DANIEL A. MANION,

Circuit Judge

William J. Hibbler, Judge.

On consideration of the “petition for rehearing and

suggestion for rehearing en banc, and motion to recall

mandate of defendants/appellees”, etc., no judge in active

service has requested a vote thereon * and all of the judges on

the original panel have voted to deny. Therefore the petition

for rehearing is DENIED.

* The Honorable Joel M. Flaum took no part in the consideration of this

petition.

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.