Atlas Air, Inc. et al v. International Brotherhood of Teamsters et al

REPLY to opposition to motion re MOTION to Dismiss

D.D.C.November 17, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ATLAS, INC., et al., ) Case No.: 1:17-cv-01953-RDM ) Plaintiffs, ) Hon. Randolph D. Moss v. ) ) INTERNATIONAL BROTHERHOOD ) OF TEAMSTERS, AIRLINE ) DIVISION, et al., ) ) Defendants. ) ) DEFENDANTS’ REPLY TO THE PLAINTIFFS’ OPPOSITION TO THEIR MOTION TO DISMISS Edward M. Gleason, Jr. Deirdre Hamilton (D.C. Bar No. 429325) (D.C. Bar No. 472334) Chief Counsel, Teamsters Local 1224 Nicolas Manicone Law Office of Edward Gleason, PLLC (D.C Bar No. 461172) 910 17 th Street, N.W., Suite 800 Staff Attorney Washington, DC 20006 International Brotherhood of Phone: (202) 800-0099 Teamsters egleason@gleasonlawdc.com 25 Louisiana Ave., NW Washington, DC 20001-2198 Phone: (202) 624-6948 James Petroff (Ohio Bar. No. 42476) Fax: (202) 624-6884 Trent R. Taylor (Ohio Bar. No. 91748) dhamilton@teamster.org BARKAN MEIZLISH, LLP 250 East Broad Street, 10 th Floor Columbus, Ohio 43215 Phone: (614) 221-4221 Fax: (614) 744-2300 jpetroff@barkanmeizlish.com ttaylor@barkanmeizlish.com (Pro Hac Vice) Counsel for Defendants International Brotherhood of Teamsters and Teamsters Local 1224 Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 1 of 25 i TABLE OF CONTENTS INTRODUCTION ......................................................................................................................1 I. This Dispute May Be Resolved by Reference to the Parties’ Collective Bargaining Agreement, and Therefore this Case is a Minor Dispute Over Which This Court Lacks Jurisdiction. ...........................................................................................................................1 II. The Court’s Intervention Is Unnecessary to Preserve the System Board’s Jurisdiction Over this Dispute. .............................................................................................7 III. Plaintiffs Have Failed to Show That They Have Complied With The Jurisdictional Requirements of Sections 6 and 7 of the Norris-LaGuardia Act. ........................................8 IV. Plaintiffs Have “Unclean Hands” Under Section 8 of Norris-LaGuardia. ............. 10 CONCLUSION ....................................................................................................................... 17 Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 2 of 25 ii TABLE OF AUTHORITIES Statutes Norris-LaGuardia Act, 29 U.S.C. §101, et seq……………………………………………... Passim Railway Labor Act, 45 U.S.C. §151, et seq………………………………………………… Passim Cases Aircraft Service Intern., Inc. v. International Broth. of Teamsters, 779 F.3d 1069 (9th Cir.2015) ………………………………………………………… 13, 14, 15 Air Line Pilots Ass’n v. Eastern Air Lines, Inc., 869 F.2d 1518 (D.C.Cir.1989)…………………………………………...…………………………… 3 Brotherhood of Locomotive Engineers v. Long Island R.R., 85 F.3d 35 (2d Cir.1996)……………………………………………………………………………… 3 Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas R.R., 363 U.S. 528 (1960) ………………………………………………………………………………………… 4 Brotherhood of Maintenance of Way Employees v. Burlington & Northern & Sante Fe R.R., 270 F.3d 637 (8th Cir. 2001) ………………………………………………………………………………………… 4 Brotherhood of Ry. Clerks, Westchester Lodge 2186 v. Railway Express Agency, 329 F.2d 748 (2d. Cir. 1964) ………………………..………………………………………………………………... 7 Brotherhood of Maintenance of Way Employees v. National Railroad Passenger Corp.¸ 217 F.Supp.3d 249 (D.D.C. 2016). ……………………………...………………………………………………………….. 2 Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 3 of 25 iii Brotherhood of R.R. Trainmen v. Toledo, P. & W.R.R. (“Toledo”), 321 U.S. 50 (1944) ……………...………………………………………………………………………….. Passim Capraro v. United Parcel Service, 993 F.2d 328 (3rd Cir. 1993) ………………………...……………………………………………………………….. 4 Chicago & North Western Transportation Co. v, Railway Labor Execs. Ass’n, 855 F.2d 1277 (7 th Cir. 1988)……………………………………………………….…. 2, 8 Consolidated Rail Corp. v. Ry. Labor Executives’ Ass’n (“Conrail”), 491 U.S. 299 (1989) ……………………...…………………………………………… Passim CSX Transportation v. Brotherhood of Maintenance of Way Employees, 327 F.3d 1309, (11th Cir. 2003). …………………………...…………………………………………………………….. 4 IBT/HERE Employee Representatives’ Council v. Gate Gourmet, 377 F.Supp. 2d 54 (D.D.C. 2005) ……………………………...…………………………………………………………... 3 International Ass’n of Machinists v. US Airways, 358 F.3d 255 (3rd Cir. 2004) ………………………………………………………………………………………….. 3 International Bhd. of Teamsters, Local 19 v. Southwest Airlines Co., 875 F.2d 1129 (5th Cir. 1989) …………………………...……………………………………………………………… 7 Niagara Hooker Employees Union v. Occidental Chem. Corp., 935 F.2d 1370 (2nd Cir. 1991) …………………………...……………………………………………………………… 7 Oakey v. US Airways Pilots Disability Income Plan, 839 F.Supp.2d 225 (D.D.C. 2012), aff’d 723 F.3d 227 (D.C. Cir. 2013)……………………………………………………………………………………. 2 Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 4 of 25 iv Rutland Ry Corp. v. Bhd. of Locomotive Engineers, 307 F.2d 21 (2d Cir. 1962) ……………………….………………………………………………………………….. Passim Southern Ry Co. v. Bhd. of Locomotive Firemen & Engineermen, 384 F.2d 323 (D.C. Cir. 1967) …………………………...……………………………………………………………… 7 United Air Lines, Inc. v. Air Line Pilots Ass’n, 563 F.3d 257 (7th Cir. 2009) …………………………………………………………………………... 8, 9 United Air Lines, Inc. v. International Ass’n of Machinists, 243 F.3d 349 (7th Cir. 2001) ………………………….……………………………………………………………….. 8, 9, 15 United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) ………………...………………………………………………………………………… 4 United Transportation Union v. CSX, 893 F.2d 584 (3 rd Cir 1990) ………………………….……………………………………………………………….. 2 Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 5 of 25 1 INTRODUCTION In their Opposition, Plaintiffs attempt to rebut the Union’s argument showing that the instant case grows from a minor dispute over which this Court lacks jurisdiction. Plaintiffs also argue that injunctive relief should issue nonetheless if the Court finds a minor dispute although there is no evidence to support their contention that such an injunction is the sole practical means of ensuring compliance with the Railway Labor Act, 45 U.S.C. §151 et seq. (RLA). Finally, the Plaintiffs attempt to rebut the Union’s argument that this Court lacks jurisdiction because Plaintiffs have failed to provide proof that they have complied with all of the procedural and substantive requirements of the Norris-LaGuardia Act, 29 U.S.C. §101 et seq. In the following reply, we respond to each of Plaintiffs’ meritless arguments in turn. I. This Dispute May Be Resolved by Reference to the Parties’ Collective Bargaining Agreement, and Therefore this Case is a Minor Dispute Over Which This Court Lacks Jurisdiction. Plaintiffs argue that this case presents a major dispute because the Union’s proffered interpretation of Section 26.X of the CBA is not “arguably justified” under its interpretation of the Agreement. But Plaintiffs offer little more than invective against the Union’s interpretation. The Plaintiffs’ reading of the contract unsurprisingly paints Section 26.X as a decoration on the CBA, completely useless. Plaintiffs also criticize the Union’s interpretation of this Section on the ground that it did not do enough to justify its position in the hearing before the Court. 1 1 The Plaintiffs disingenuously argue in their Opposition that the Union’s interpretation of Section 26.X has been inconsistent and looks to a single extemporaneous statement by Union’s counsel to the effect that the Court has the authority to “issue an injunction even though it is a minor dispute in order to preserve the jurisdiction of the system board itself.” Opposition, ECF Doc. 52 at 5 fn. 2 quoting Tr. Day 1, 91:21-92:6. This statement is correct: the Court does have the authority to issue an injunction requiring the parties to arbitrate a minor dispute and to preserve the System Board’s ability to issue an award. That is consistent with the Union’s position that the Court would also have the authority to issue an injunction if a System Board of Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 6 of 25 2 The Plaintiffs’ argument reflects a fundamental mischaracterization of the law of minor disputes and the proper role of federal courts under the United States Supreme Court’s decision in Consolidated Rail Corp. v. Ry. Labor Executives’ Ass’n (“Conrail”), 491 U.S. 299, 311-12 (1989). In Conrail, the Supreme Court established that “[t]he distinguishing feature of [a minor dispute] is that the dispute may be conclusively resolved by interpreting the existing agreement.” Id. at 305. A dispute is a minor one if the action “arguably is justified by the implied or express terms of the parties’ collective bargaining agreement” – where an interpretation is “frivolous or obviously insubstantial” the dispute is major. Id. at 310. Defendants bear only a “light burden” to show that the dispute can arguably be resolved by reference to a collective bargaining agreement (“CBA”). Brotherhood of Maintenance of Way Employees v. National Railroad Passenger Corp.¸ 217 F.Supp.3d 249, 257 (D.D.C. 2016). They can bear this burden by showing that their interpretation of the CBA is at least plausible on its face: “In determining whether these contentions are sufficient so as to not be characterized as ‘frivolous,’ ‘spurious,’ or ‘obviously insubstantial,’ the Court “does not judge the merits of the [party’s] contractual argument, but does take a ‘peek’ at the justification to determine whether it is arguably rooted within the terms of the contract.” National Railroad, 217 F.Supp. 3d at 257 quoting Oakey v. US Airways Pilots Disability Income Plan, 839 F.Supp.2d 225, 231-32 (D.D.C. 2012), aff’d 723 F.3d 227 (D.C. Cir. 2013); see also United Transportation Union v. CSX, 893 F.2d 584, 593 (3 rd Cir. 1990), quoting Chicago & North Western Transportation Co. v, Railway Arbitration, after arbitration, found that the Union had engaged in a slowdown or concerted refusal to work normal overtime in violation of Section 26.X and ordered it to desist from such a contractual violation. Plaintiffs have an express contractual right to file management grievances alleging violations of the CBA and have done so earlier this year. The fact that they have not chosen to do so here is evidence of its bad faith desire to use the federal judiciary as leverage against the Union to resist arms-length contract negotiations and to bail Plaintiffs out of an operational mess entirely of their own making. Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 7 of 25 3 Labor Execs. Ass’n, 855 F.2d 1277, 1283 (7 th Cir. 1988) (holding that in finding a minor dispute, a court “does not consider the merits of the underlying dispute” but is “limited to determining whether the dispute can be characterized as involving the proper application or meaning of a contract provision”). As implied by the use of the word “peek”, the Court in this process is to examine only the threshold issue and must not go “beyond interpreting whether the CBA resolved the dispute.” International Ass’n of Machinists v. US Airways, 358 F.3d 255, 262 (3 rd Cir. 2004). In fact, so favored is arbitration that “even if the court is absolutely convinced that the agreement prohibits the party’s action, it may not infer that the party has repudiated the agreement, generating a major dispute, unless the court makes the essential finding that the party’s proffered interpretation is so inherently unreasonable as to amount to bad faith.” IBT/HERE Employee Representatives’ Council v. Gate Gourmet, 377 F.Supp. 2d 54, 61 (D.D.C. 2005) (internal quotations omitted) citing Air Line Pilots Ass’n v. Eastern Air Lines, Inc., 869 F.2d 1518, 1523 n.5 (D.C.Cir. 1989). “[T]o hold otherwise would allow the court to find a major dispute based solely on its view of the merits – usurping the role of the arbitrator in interpreting and applying the contract”. Gate Gourmet at 61 quoting Eastern at 1523 n.5. A carrier moving for an injunction not only has an interest in arguing that a dispute is major, it also able to help frame the dispute as major by avoiding discussing or arbitrating it with the union and bringing it directly to court. Thus, in Conrail, the Supreme Court addressed the problem that a party can try to deceptively convert a minor dispute into a major dispute through its own approach to solving a disagreement, since “[t]he party who initiates a dispute takes the first step toward categorizing the dispute when it chooses whether to assert an existing contractual right to take or to resist the action in question.” Conrail, 491 U.S. at 305. Because Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 8 of 25 4 “there is a danger in leaving the characterization of the dispute solely in the hands of one party,” courts must “substitute its characterization for that of the claimant.” Id. at 305-06; see also Rutland Ry Corp. v. Bhd. of Locomotive Engineers, 307 F.2d 21, 33 (2d Cir. 1962) (Courts “must not place undue emphasis on the contentions or the maneuvers of the parties”). More important to interpreting the agreement is the “industrial common law.” It is the “common law of the shop which implements and furnishes the context of the agreement. [T]he industrial common law – the practices of the industry and shop – is equally a part of the collective bargaining agreement although not expressed in it.” United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580-82 (1960)(internal quotations and citations omitted). This “arbitration is required if either side is advancing a plausible argument based on implied terms evidenced by course and practice under the collective bargaining agreement or the ‘common law of the shop.’” Capraro v. United Parcel Service, 993 F.2d 328, 332 (3 rd Cir. 1993). This is why minor disputes must be “resolved by experts in ‘the common law of the particular industry.’” Id. at 332, n.7. It is also why this Court’s role is only to determine whether there is a dispute over the meaning of the CBA, not to consider the merits of that dispute, and finally why any doubts must be resolved in favor of finding a minor dispute to be resolved by industry-expert Board members. See CSX Transportation v. Brotherhood of Maintenance of Way Employees, 327 F.3d 1309, 1321 (11 th Cir. 2003)(“if reasonable doubt exists…, we will deem it to be minor”); Brotherhood of Maintenance of Way Employees v. Burlington & Northern & Sante Fe R.R., 270 F.3d 637, 639 (8 th Cir. 2001)(“if doubt arises about the classification of a dispute, the dispute is also considered to be minor”); Brotherhood of Locomotive Engineers v. Long Island R.R., 85 F.3d 35, 38 (2d Cir. 1996)(a party arguing that a dispute is minor “need only demonstrate that a reasonable trier of fact could adopt [its] view of the contract”). Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 9 of 25 5 Because it is necessary in the instant to apply the “industrial common law” to resolve this dispute, this matter must be classified as a minor dispute. The parties created a paragraph in the CBA that bars the Union from engaging in actions like “slowdowns” or “concerted refusals to work normal overtime,” which Plaintiffs have accused the Union of engaging in here. See CBA, Exhibit 1 at Article 26.X. Plaintiffs also allege that the pilots are concertedly abusing sick leave, dishonestly calling out fatigued, and concertedly refusing to work “normal” overtime. All of these actions are subject to the CBA’s discipline and grievance/arbitration provisions. Plaintiffs also accuse the pilots of improperly writing up maintenance problems relating to their aircraft, refusing to depart when an aircraft is “loaded and ready,” refusing to cut CBA corners and doing other extra-contractual favors for management, and refusing to depart until catering improprieties are corrected by management, all of which conduct Plaintiffs allege violates contractual past practices and is therefore also subject to the CBA’s grievance/arbitration provisions. As set forth in the CBA, the parties agreed that it is up to the arbitrator, in his or her role as a fact-finder and third-party neutral, to decide whether such conduct has taken place and how it must be remedied. In this proceeding, Plaintiffs seek the Court’s assistance in defanging the very terms of the CBA that Plaintiffs claim they avidly want to enforce. Their claim regarding open time flying is a telling example. The CBA bars pilots from refusing to work “normal” overtime. The CBA therefore impliedly permits pilots to refuse to work “abnormal” or unusual overtime. Thus, one of the Union’s potential defenses against the Plaintiffs’ request for relief is that the overtime Atlas pilots were being asked to perform was not “normal” and thus that pilots were permitted to refuse it. But whether a level of overtime is “normal” or not is exactly the type of issue that is deeply rooted in the common law of the carrier. The Court cannot consider the Union’s potential defense on the ground that the contract permits its members to refuse abnormal overtime, Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 10 of 25 6 because the Court cannot interpret the CBA. In contrast, however, a System Board would have the power to consider whether any arguable refusals to accept overtime are permissible because the type of overtime is abnormal, or impermissible because it is normal. By inserting into the CBA this language and similar language referencing slowdowns and other actions, the parties at least arguably intended to entrust to the System Board questions about the propriety of the Union’s and its members’ actions. That the carrier claims it is bringing a statutory claim is no answer. The CBA defines what is and is not permissible when it comes to concerted union activity. The Court cannot simply ignore the CBA language as the Carrier wishes. Obviously this language was designed to cover the legal relations of the parties on this topic. It is not mere surplusage. Indeed, the Court has no jurisdiction to so construe the language. After almost one year of the Union requesting that Plaintiffs share the details of their complaints against it, and after almost one year of Plaintiffs refusing to provide any such details, Plaintiffs trumped up a phony emergency motion and dumped more than 40,000 pages of alleged factual and statistical evidence that they said supported their case. During the hearing, Plaintiffs reversed course and conceded that the facts in support of their slowdown claims did not support their claims at all. They were left only with unprofessionally developed, reverse-engineered statistics to support their claims. If the Union had had more time to mount a defense against Plaintiffs’ two-and-a-half-year planned blitzkrieg, it would have been able to shred Platiniffs’ theories even more. The Plaintiffs’ sneak attack as evidenced by the injunction hearing presents a classic reason why complaints of the sort alleged by the Plaintiffs here must be left to a forum that the parties contracted to resolve their disputes. Given the positive rights implied in the contract (for example, the implied right to refuse abnormal overtime), the Union’s argument that Section 26.X requires an arbitrator to exercise the “common law of the shop” before a Court can Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 11 of 25 7 become involved is not “frivolous” or “obviously insubstantial” and the Union has met its burden of demonstrating that the contract arguably governs this dispute. II. The Court’s Intervention Is Unnecessary to Preserve the System Board’s Jurisdiction Over this Dispute. Parties can seek injunctions in "minor dispute" cases only to preserve the jurisdiction of the system board. Southern Ry Co. v. Bhd. of Locomotive Firemen & Engineermen, 384 F.2d 323, 326-327 (D.C. Cir. 1967), citing Brotherhood of Locomotive Engineers v. Missouri-Kansas- Texas R.R., 363 U.S. 528 (1960). See, also Brotherhood of Ry. Clerks, Westchester Lodge 2186 v. Railway Express Agency, 329 F.2d 748, 752–53, (2d Cir. 1964). However, such injunctions may not be issued unless absent an injunction the activity sought to be enjoined “has the effect of frustrating the arbitral process, or rendering it a ‘hollow formality.’” Gate Gourmet, 377 F.Supp. 2d at 62 quoting Niagara Hooker Employees Union v. Occidental Chem. Corp., 935 F.2d 1370, 1377 (2 nd Cir. 1991)(internal quotations omitted). As noted previously in our Memorandum of Law, Plaintiffs have offered no argument and no evidence that absent an injunction a System Board’s award in its favor would have been futile and irreparably injured Plaintiffs. International Bhd. of Teamsters, etc. Local 19 v. Southwest Airlines Co., 875 F.2d 1129, 1133 (5th Cir. 1989)(en banc)(injunctions may issue only where necessary to preserve the jurisdiction of the grievance procedure, or where a disruption of the status quo would result in irreparable injury of such magnitude that it would render any subsequent decision meaningless). To the contrary, Plaintiffs’ delay in bringing this action proves that no such injury would occur to the System Board’s ability to decide and remedy any violation if found. Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 12 of 25 8 III. Plaintiffs Have Failed to Show That They Have Complied With The Jurisdictional Requirements of Sections 6 and 7 of the Norris-LaGuardia Act. Plaintiffs have alleged that they are entitled to injunctive relief because the Union has violated the requirement to “make and maintain agreements” under Section 2, First of the RLA, 45 U.S.C. §152, First. To qualify for injunctive relief under this theory, a moving party is required by Norris-LaGuardia to demonstrate that that “unlawful acts … have been committed and will be continued unless restrained.” Norris-LaGuardia Act, 29 U.S.C. § 107(a). The moving party must also demonstrate that the requested injunction is the “only, practical, effective means of enforcing the duty to exert every reasonable effort to make and maintain agreements” or that injunctive relief “alone can effectively guard the plaintiff’s right.” Chicago & N.W. Ry. Co., 402 U.S. at 582-83. And under Section 6 of Norris-LaGuardia, Plaintiffs must also provide “clear proof” that the Union’s connection to prohibited conduct. See United Air Lines, Inc. v. International Ass’n of Machinists, 243 F.3d 349, 365-67 (7 th Cir. 2001)(applying clear proof standard under Section 6 of Norris-LaGuardia, 29 U.S.C. § 106); see also United Air Lines, Inc. v. Air Line Pilots Ass’n, 563 F.3d 257, 271 (7 th Cir. 2009). Plaintiffs have not met their burdens, failing to demonstrate that the unlawful “status quo” violations they allege have been committed at all, or that the Union is causally connected to those alleged violations, or that an injunction is the only practical, effective means of enforcing Section Two, First. One problem with Plaintiffs’ case is that, after acknowledging that the factual evidence in support of their claims was incorrect, Plaintiffs lack any facts supporting their claims of such a concerted slowdown. They instead rely exclusively upon carefully massaged statistical evidence to support their claims. In United, however, the Seventh Circuit Court of Appeals held that such statistical evidence was insufficient proof standing alone: Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 13 of 25 9 In ALPA, we found that statistical evidence alone regarding a marked increase in sick leave was not enough to constitute clear proof that the union was implicated in a sick-out scheme. Air Line Pilots Ass’n v. United Air Lines, Inc., 802 F.2d 886, 905-06 (7 th Cir. 1986). See also IAM, 243 F.3d at 366 (reiterating that statistical evidence alone is not enough to provide clear proof of a union’s involvement in a work action). An employer may meet the clear proof standard with statistical evidence in combination with evidence of a union’s coded communications to its members to engage in an unlawful job action. United, 563 F.3d at 272 (emphasis supplied). Only upon showing “a wealth of evidence … rejecting the defendants’ alternative explanations for the increases in sick leave usage, and flight delays and cancellations” and successfully tying those effects directly to the union’s actions was the carrier able to meet its burden of showing clear proof and thus justify injunctive relief. United, 563 F.3d at 273. In this case, the Union demonstrated in its Defendants’ Proposed Findings of Fact and Post-Hearing Brief that the statistical evidence demonstrating unlawful job actions was extremely flawed. Defendants’ Proposed Findings of Fact, ECF Doc. 48 (“DPFF”) ¶¶ 24, 36-39, 48, 50-56, 60, 67; Post-Hearing Brief, ECF Doc. 50 at 15-18. Other than that faulty statistical evidence, the Plaintiffs had nothing. Capt. Jeff Carlson, the Company’s Senior Vice President of Flight Operations, testified that none of the anecdotal evidence of supposedly suspicious late sick calls and fatigue calls was proof of unlawful or concerted behavior, and acknowledged that every instance of sick or fatigue calls cited by Plaintiffs may have been perfectly legitimate. Moreover, Plaintiffs failed to draw any clear connections between the Union’s supposed encouragement of job actions and subsequent pilot unlawful behavior. Without reiterating all of the evidence and argument presented in our Findings and Conclusions, it must be noted that the Union’s efforts to encourage compliance with the letter of the contract occurred well before the alleged increase in alleged prohibited pilot behavior, and much of the changes at issue could be Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 14 of 25 10 attributed to legitimate changes in the operations (increased flying, pilot turnover and so on). If changes were due to any or a combination of these factors, Plaintiffs’ case that the Union was encouraging pilots to violate the status quo to gain negotiation leverage crumbles. Without showing this causal connection between supposed “encouragement” to an unlawful act and the pilots’ actions, the Plaintiffs cannot show that an injunction against the Union’s communications to its membership will have any effect on allegedly unlawful pilot behavior. The requirement that a Court verify a clear connection between the Union’s encouragement to act unlawfully and subsequent unlawful member actions is a jurisdictional requirement under Sections 6 and 7(a) of the NLGA. If Plaintiffs fail to show that connection, then the Court has no jurisdiction under Norris-LaGuardia to issue an injunction. Likewise, if the carrier cannot show that an injunction is the only “practical, effective means” of gaining compliance with Section 2, First, then it does not have the authority to issue an injunction. Given that Plaintiffs have failed to show any of the connections they are alleging, this Court must dismiss Plaintiffs’ action for injunctive relief. IV. Plaintiffs Have “Unclean Hands” Under Section 8 of Norris-LaGuardia. We submit that Atlas did not file this action with clean hands, having complied with its legal obligations and made every reasonable effort to settle the labor dispute in question. Atlas did not make every reasonable effort to resolve the underlying major dispute by negotiation pursuant to Section 6 for an amended CBA covering the Atlas pilots. On the contrary, Atlas abruptly ceased Section 6 negotiations in April 2016 and refused to participate in mediation. See DPFF ¶ 4. Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 15 of 25 11 Nor did Atlas make any reasonable effort to address the concerns it sought to rememfy instead by moving for this injunction. In December 2016, Atlas accused the pilots of violating the status quo by calling in sick at a rate significantly higher than past practice (an allegation Atlas would drop from its Complaint due to lack of evidence, instead alleging that pilots had increased short notice sick calls) and refusing to volunteer for and accept open time in contravention of past practice. DPFF ¶ 68. The Union subsequently asked Atlas to substantiate these claims against the pilots and claims regarding the existence of past practice, but Atlas refused to do so. DPFF ¶ 69. In late May and early June 2017, Atlas again accused the pilots of engaging in a slowdown in violation of the status quo, but again refused to substantiate its claims. DPFF ¶¶ 70-71. 2 Atlas then waited nearly four months before ambushing the Union, filing its 82-page complaint and 100-page motion for preliminary injunction on September 25, 2017. As became clear during the hearing, Atlas retained its expert in 2015 and he began working on his expert report at the beginning of the summer of 2017. (Tr. Day 1, at 148:3-14) Yet, Atlas waited until the last minute to seek the injunction it claimed it needed for the fourth quarter. (Tr. Day 1, at 7:18-20) Although the Court reasonably understood Atlas’s request as concerning the Christmas shopping season, Atlas’s timing gave the Union only a month to investigate numerous factual allegations, analyze the expert report, brief these matters, and present its case in a live hearing. In this manner, Atlas has strategically put before this Court, with very little time to examine these issues, numerous requests for wide-ranging relief that potentially have profound implications for the parties’ bargaining relationship going forward, the Union’s First Amendment rights to association and to communicate with its members, and even to public safety. 2 In the subsequent hearing, Atlas ran away from its anecdotal allegations and was unable to present a single example of a pilot engaging in the conduct alleged in its Complaint. Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 16 of 25 12 This is not the conduct of a party with clean hands making every effort to resolve a labor dispute. First, during much of the time frame in question, Atlas was refusing to negotiate or participate in mediation as required by both the RLA and NLGA. Brotherhood of R.R. Trainmen v. Toledo, P. & W.R.R., 321 U.S. 50, 56-58 (1944)(“Toledo”). Atlas has used as its operative date February 16, 2016, when the Union filed for Section 6 negotiations (for example, February 2016 is used a benchmark date throughout Dr. Lee’s expert report, see ECF Doc. 5-103). Yet, beginning in April 2016 Atlas refused to participate in further negotiations or participate in mediation as required by the RLA until the parties reached agreement for negotiation process for a new post-merger CBA in June 2017. 3 DPFF ¶ 4. Much of Plaintiffs’ case involves allegations of conduct during that fourteen-month period when they were refusing to negotiate with the Union to amend their stand-alone CBA and then actively and aggressively refusing to negotiate in mediation before the National Mediation Board after the Union had filed a request for such mediation services. Plaintiffs would have this Court believe that the Union is the party with the unclean hands here because it refused to kowtow to the Plaintiffs’ “my-way-or-the-highway” demand regarding the very nature of the contract the parties were negotiating over – i.e. an amended, stand-alone Atlas/Polar-Union CBA covering the Atlas pilots conducted in accordance with the RLA, or a new, merged contract conducted outside of the RLA, covering Atlas pilos and the pilots of Plaintiffs’ affiliate, Southern Air, Inc., who are presently covered by a separate contract. The fact that the Union declined Plaintiffs’ bad faith ultimatum is no defense to Atlas’s obligation to exert every reasonable effort to resolve the dispute. 3 Although Atlas claims the parties began negotiating for a process agreement for negotiating a joint CBA covering both Atlas and Southern pilots in October 2016 (see Plaintiff’s Proposed Findings of Fact (“PPFF”) ECF Doc. 47, ¶ 21), these alleged negotiations show little progress in February 2017 when Atlas sued the Union over that issue (DPFF ¶ 4). In any case, Atlas has not carved out from its allegations of Union misconduct any period when it was refusing to negotiate or mediate the ongoing Section 6 contract negotiation. Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 17 of 25 13 Atlas’s claim that it was only obliged to make reasonable efforts to resolve the major dispute and had no obligation with regard to the dispute as to whether or not the Union was engaged in slowdown is not consistent with the purposes of RLA or the NLGA. It is the policy of both the RLA and the NLGA to encourage the use of non-judicial processes. See Toledo, 321 U.S. at 58; Rutland Ry. Corp, 307 F.2d at 40-41 (holding that “the relevant sections of the Railway Labor Act and the Norris-LaGuardia Act impose a duty upon a [carrier], short of negotiation, to take some reasonable steps toward dispute settlement before it can obtain an anti- strike injunction”); Aircraft Service Intern., Inc. v. International Broth. of Teamsters, 779 F.3d 1069, 1076 (9th Cir. 2015)(finding that strict enforcement of NLGA Section 8 furthers the goals of the RLA). The question before the Supreme Court in the Toledo case was whether, having participated in negotiation and mediation under the RLA, the railroad was also required to engage in arbitration before seeking a strike injunction. Toledo, 321 U.S at 56-57. The Supreme Court found that Section 8’s requirement that a party “make every reasonable effort to settle the dispute” encompassed all three modes of dispute resolution outlined in the RLA. Id. The Court expressly declined to determine “whether they [the three modes of dispute resolution specified] were illustrative or exclusive.” Id. at 57, fn. 11. However, the Court’s decision made clear that it viewed this obligation as expansive. “One must not only discharge his legal obligations. He must also go beyond them and make all reasonable effort, at the least by the methods specified if they are available, though none may involve complying with any legal duty.” Id. at 57 (emphasis supplied). Further, the Court found that the basic policy of both the RLA and the NLGA were in accord to “encourage the use of nonjudicial processes… for the adjustment of labor disputes.” Id. at 58. Enacting the NLGA, Congress “sought to make injunction a last line of defense, available Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 18 of 25 14 not only after other legally required methods, but after all reasonable methods as well, have been tried and found wanting.” Id. at 58-59 (emphasis supplied). To interpret Toledo so narrowly, as allowing injunctions after the carrier satisfies only the obligations of the RLA with regard to a major dispute, flies in the face of the Supreme Court’s broadly stated mandate that a party must “go beyond” his legal obligations to make every reasonable effort to resolve a labor dispute. The obligation to attempt to resolve a dispute prior to seeking an injunction does not only apply in the case of major disputes. When the dispute in question is a minor dispute, the parties are also obliged to take reasonable steps toward dispute resolution. In Rutland Ry. Corp. the Second Circuit found that with respect to minor disputes, Section 8 and the RLA impose upon the carrier the obligation to “confer,” meaning an effort short of negotiation to take reasonable steps toward dispute resolution. 307 F.2d at 40-41. Thus, however the dispute between Atlas and the Union as to whether the Union was engaged in a slowdown may be classified, Atlas was obliged to attempt to resolve it. “The precise requirements of this obligation [to make every reasonable effort to settle a dispute] vary from case to case,” Aircraft Service, 779 F.3d at 1077 (reversing and vacating strike injunction issued by district court where employer failed to make every reasonable effort to resolve the dispute). In requiring efforts short of negotiation to take reasonable steps toward dispute resolution in the case of minor disputes, the Ninth Circuit citing the Second Circuit has suggested “certain minimum steps” for the usual case. Id. “Unfair surprise should be avoided whenever possible. The representatives of management should meet with those of labor. Each side should listen to the contentions of the other side and each side should explain its position clearly and honestly... In short, men of good faith must in good faith get together in a sincere effort to resolve their differences.” Rutland Ry. Corp., 307 F.2d at 41; see also Aircraft Service, Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 19 of 25 15 779 F.3d at 1077 (citing these “certain minimal steps” as consistent with the Supreme Court’s “broad construction of Section 8” in Toledo). Here, Atlas refused to participate in negotiation or mediation for fourteen months until the Union agreed to proceed in the manner demanded by Atlas, to negotiate a joint CBA covering both Atlas and Southern pilots rather than the Section 6 negotiations sought by the Union and required by the RLA. During that period, Atlas accused the Union of engaging in a slowdown, but refused to substantiate or discuss these allegations. Then it ambushed the Union with a carefully timed action for an injunction. This conduct is not making a reasonable effort to resolve the dispute between the parties. Not only did Atlas refuse to negotiate or mediate for an extended period, Atlas did not avoid “unfair surprise,” nor did it “explain its position clearly and honestly” with respect to its belief that the Union was engaged in a slowdown. Atlas cited United Air Lines for the proposition that Section 8 does not require Atlas to engage in “negotiation, mediation or arbitration” over the alleged slowdown. 243 F.3d 349 (7 th Cir. 2001). That case is distinguishable from the present case. There, United was “already engaging in good-faith effort to settle the labor dispute through negotiation, mediation, or arbitration.” Id. at 365. United provided the Union detailed notice of the conduct it alleged as a “slowdown” and was subsequently able to substantiate these allegations. Id. at 353-55. United also pursued the injunction promptly, rather than sitting on its claim to wait for a strategic moment to file. Id. at 354. We need not address whether Atlas was required to negotiatite a resolution to the alleged slowdown, because Atlas never provided the Union with a serious opportunity to even address the alleged slowdown much less discuss a resolution. The Union requested that Atlas substantiate its allegations of a slowdown, and Atlas unreasonably declined to do so. If the Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 20 of 25 16 Union is obliged to make reasonable efforts to prevent or stop a slowdown (as alleged in Atlas’s Complaint, ECF Doc. 1, ¶ 196), the Union has a right to know what conduct they are supposed to stop. When Capt. Carlson wrote to the Union about the alleged slowdown in December 2016, he alleged two things- “calling in sick at a rate significantly higher than normal past practice” and “refusing to volunteer for and accept ‘open time’ flying in contravention of past practice.” DPFF ¶ 68. Atlas has abandoned its claim that pilots are “calling in sick at a rate significantly higher than normal past practice,” instead basing its case on alleged increase in short notice sick calls. See Complaint, ECF Doc. 1 at ¶¶4, 38, 40-49; see also DPFF ¶ 24. Thus, the Union could not have stopped this conduct even if it tried, because it was not happening. The Union responded with the entirely fair and accurate request: “Please also refrain from making broad, unsubstantiated accusations and barely veiled threats against the Local and its members. Such conduct is as unfair and unprofessional, as the accusations are inaccurate.” DPFF ¶ 69; ECF Doc. 5-40. Atlas did not abandon its allegations with regard to open time, but has supported this claim with an edifice of statistics. As discussed in the Union’s Post-Hearing Brief, this statistical case is riddled with flaws (see ECF Doc. 50 at 20-21). However, even if Atlas could prove with statistics that pilots were “refusing to volunteer for and accept ‘open time’ flying in contravention of past practice,” there is no way the Union could see that this was happening if Atlas did not share this information to substantiate the allegation. This is especially true given that CBA Article 25.M affords Plaintiffs the discretion to determine what is and what is not open time, as well as the method for publishing open time. Moreover, considering that Plaintiffs’ Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 21 of 25 17 other claim in the letter regarding sick calls was baseless, there is no reason the Union should have taken them at their word with regard to the open time allegations. Atlas’s subsequent communications accusing the Union of engaging in a slowdown were even less informative than the December 2016 letter. DPFF ¶¶ 70-71. Atlas was apparently reviving the baseless accusations of December 2016, and adding no new allegations about short notice sick calls, fatigue calls, maintenance write ups, slower departures, or rejection of crew meals. Id. The Union could not end a “slowdown” when it had no idea what conduct to target. Plaintiffs are seeking an extraordinary remedy that would seriously tie the Union’s hands in its ability to communicate with it members and otherwise conduct itself as a Union. They have not done so with clean hands. Atlas not only made no effort to resolve the dispute, it never even gave the Union a reasonable opportunity to address the alleged “slowdown.” Instead, Plaintiffs sat on their claim and filed it at the last minute, creating an artificial time constraint in which both the Union and the Court have had to scramble to address this demand. Given the manner in which they failed to satisfy the basic requirement of the Norris LaGuardia Act to attempt to resolve the dispute, Section 8 should bar the injunction Plaintiffs seek. CONCLUSION For the reasons stated above, the Court should dismiss Plaintiff's request for a preliminary injunction for lack of jurisdiction, or in the alternative, deny it on the merits on the facts and law presented. Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 22 of 25 18 Dated: November 17, 2017 Respectfully submitted, /s/ Edward M. Gleason, Jr. Edward M. Gleason, Jr. (D.C. Bar No. 429325) Chief Counsel, Teamsters Local 1224 Law Office of Edward Gleason, PLLC 910 17 th Street, N.W., Suite 800 Washington, DC 20006 Ph: 202-800-0099 egleason@gleasonlawdc.com /s/ James Petroff James Petroff (Ohio Bar No. 42476) Trent R. Taylor (Ohio Bar No. 91748) BARKAN MEIZLISH, LLP 250 East Broad Street, 10 th Floor Columbus, Ohio 43215 Ph: (614) 221-4221 Fax: (614) 744-2300 jpetroff@barkanmeizlish.com ttaylor@barkanmeizlish.com (Pro Hac Vice) /s/ Deirdre Hamilton Deirdre Hamilton D.C. Bar No. 472334 Staff Attorney /s/ Nicolas Manicone Nicolas Manicone D.C. Bar No. 461172 Staff Attorney International Brotherhood of Teamsters 25 Louisiana Ave., NW Washington, DC 20001-2198 Phone: (202) 624-6948 Fax: (202) 624-6884 dhamilton@teamster.org Counsel for-Plaintiffs International Brotherhood of Teamsters and Teamsters Local 1224 Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 23 of 25 19 Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 24 of 25 20 CERTIFICATE OF SERVICE I hereby certify that the foregoing document was filed with the Clerk of this Court this 17th day of November, 2017, and was served on all parties, electronically through the Court's ECF system. /s/ Nicolas Manicone Nicolas Manicone Case 1:17-cv-01953-RDM Document 56 Filed 11/17/17 Page 25 of 25