UAL v. Air Line Pilots Association, I

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 9, 2009
• Docket: 08-4157
• Status: Published

Opinion

In the United States Court of Appeals For the Seventh Circuit _______________________

No. 08-4157

UNITED AIR LINES, INC., Plaintiff-Appellee,

v.

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, STEVEN M. TAMKIN, ROBERT J. DOMALESKI, JR., XAVIER F. FERNANDEZ, and ANTHONY R. FREEMAN, Defendants-Appellants. _________________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 CV 4317 - Joan Humphrey Lefkow, Judge. __________________________

ARGUED FEBRUARY 24, 2009 – DECIDED MARCH 9, 2009* _________________________

Before ROVNER, WOOD and SYKES, Circuit Judges.

ROVNER, Circuit Judge. On July 30, 2008, United Air Lines, Inc. ("United") sued the Air

Line Pilots Association, International ("ALPA") and several individual pilots under Section 2, First of

the Railway Labor Act ("RLA"), 45 U.S.C. §152, First, for declaratory and injunctive relief. United

alleged that ALPA (which is the certified collective bargaining representative for the pilots) and the

United pilots engaged in a lengthy campaign of unlawful activities to pressure United to renegotiate the

parties' collective bargaining agreement ("CBA"). After conducting a hearing, the district court granted

* This opinion is being released in typescript. A printed version will follow. No. 08-4157 Page 2

United's motion for a preliminary injunction, enjoining the defendants from "calling, permitting,

instigating, authorizing, encouraging, participating in, approving or continuing any interference with

United's airline operations, including but not limited to any strike, work stoppage, sick-out, slowdown,

work to rule campaign, concerted refusal to accept voluntary or overtime flying assignments, or other

concerted refusal to perform normal pilot operations in violation of the Railway Labor Act, 45 U.S.C. §

151 et seq." The court also ordered the defendants to take all reasonable actions within their power to

prevent and to refrain from continuing those actions. We granted the defendants’ motion to expedite

the appeal, and we now affirm.

I.

We will provide a condensed version of the facts that are relevant to the issues on appeal. We

refer the reader to the district court’s extraordinarily thorough and well-supported findings of fact for a

more complete picture of the case. United Air Lines, Inc. v. Air Line Pilots Ass’n, 2008 WL

4936847 (N.D. Ill. Nov. 17, 2008) (hereafter “UAL”).

A.

After the tragic events of September 11, 2001, United suffered financial losses that caused the

company to file for bankruptcy in December 2002. In 2003, United and ALPA negotiated a new labor

agreement (the "2003 CBA") in which the pilots made significant concessions on wages, benefits and

other issues. The new agreement included a 40% wage reduction for the pilots. Over the next two

years, as United's financial condition deteriorated further, the pilots agreed to additional wage

reductions and termination of a defined benefit pension plan. The 2003 CBA (which included changes

made in 2004 and 2005) becomes amendable on December 31, 2009, but the agreement allows the No. 08-4157 Page 3

parties to begin negotiations for a new contract in early April 2009. The parties could agree to modify

the contract sooner than the amendable date but neither side may unilaterally initiate negotiations until

April 2009.

1.

United and ALPA have a long history of contentious labor relations. In 1985, the pilots

engaged in a month-long strike, during which United hired permanent replacements for the striking

pilots. The pilots and the company negotiated a Back-to-Work Agreement at the end of the strike,

with the pilots agreeing not to retaliate against the newly hired pilots or any pilots who crossed the

picket line during the strike. In spite of the Back-to-Work Agreement, the pilots who worked during

the strike were subjected to ostracism and harassment by the striking pilots for many years following

the end of the strike. The harassment ranged from the juvenile (clicking a toy clicker when non-striking

pilots entered a work area) to the petulant (refusing to shake hands with the non-striking pilots) to the

repulsive (urinating or defecating in the flight bags of non-striking pilots). The striking pilots were both

creative and persistent in their mistreatment of their non-striking counterparts, and some of the non-

striking pilots eventually resigned their positions with United. The remaining United pilots came to

believe that anyone who did not follow the majority position or ALPA’s directives would be subjected

to similar treatment. See UAL, 2008 WL 4936847, *5 (“The continued ostracism and harassment of

non-striking pilots in the two decades following the 1985 strike created a widely-held perception

among United pilots that any pilot who did not follow the majority, or ALPA, party line would be

subject to similar conduct.”) As we will discuss below, similar harassing conduct was directed at pilots

who failed to follow ALPA directives during a 2000 work slowdown and during the current campaign. No. 08-4157 Page 4

2.

After United exited bankruptcy in 2006, the company began to turn a profit. United recovered

even more in 2007, earning approximately $1 billion in profit in that year. Beginning in December

2006, ALPA sought to reopen negotiations on the 2003 CBA even though it was not amendable until

December 31, 2009. According to United, ALPA began to pressure United with a campaign that

consisted of directives to pilots to engage in actions designed to cause flight delays and cancellations

and to increase United's costs. United alleged that ALPA encouraged the pilots (a) to "fly the

contract," that is, to adhere strictly to the terms of the 2003 CBA; (b) to refuse to voluntarily waive any

section of the CBA, including provisions that were designated as waivable; (c) to refuse voluntary flight

assignments known as "junior/senior manning;" (d) to increase fuel consumption; (e) to refuse to operate

planes that had deferrable maintenance items; and (f) to take excessive amounts of time in pre-flight

cockpit checks. United also alleged that, beginning in July 2008, ALPA and the four individual

defendants coordinated a "sick-out" among United's junior pilots. The sick-out, in combination with the

refusal to accept voluntary junior/senior manning assignments, caused several hundred flight

cancellations, affecting approximately 30,000 United customers.

United filed suit on July 30, 2008. Two days later, on August 1, 2008, United and ALPA

entered into a "Standstill Agreement." Under that agreement, ALPA agreed to publish statements to its

pilot members directing the pilots not to engage in activities that disrupted United's operations. ALPA

agreed to tell the pilots not to call in sick when they were not actually ill, and also agreed to convey to

the pilots that ALPA did not condone the sick-out. ALPA also agreed in the Standstill Agreement to No. 08-4157 Page 5

publish a statement to the pilots regarding their refusal to accept junior/senior manning assignments.

Those statements were released in August 2008.

3.

ALPA had a very efficient system in place for communicating with the pilots. A Master

Executive Council ("MEC"), comprised of the top officers from local ALPA councils, has the authority

and responsibility of negotiating on behalf of the pilots. The MEC communicated with the pilots with a

"MEC Update" posted on ALPA's website two or three times a week. The MEC also posts on the

website statements and video presentations from the MEC chairman and other MEC entities. MEC

also sends e-mails to pilots who have provided ALPA with their e-mail addresses. Approximately

ninety percent of the pilots have provided their e-mail addresses to ALPA. These are not the only

means of ALPA communicating with its members. ALPA also maintains a password-protected

website known as the UAL MEC Forum in which ALPA members may post statements to other

ALPA members. ALPA also utilizes telephone trees and text messages to distribute information to

ALPA members. In other words, ALPA and the MEC have many means of communicating with the

pilots, including some methods that leave no paper or electronic trail of the content.

In addition to the MEC, ALPA operates an Industrial Relations Council ("IRC"), whose

purpose, according to the UAL-MEC Policy Manual, is to formulate and implement labor actions. The

IRC consists of three or four members. The MEC chairman appoints the chairman of the IRC, who in

turn appoints the other members of the IRC. The IRC also has methods of communicating instructions

to pilots and uses the same channels through which it parcels out information to collect information. The

IRC meets only in person or by telephone and by design leaves no written trail of its communications. No. 08-4157 Page 6

It is a secretive organization. Steven Tamkin, one of the individual defendants, has been the chair of the

IRC since 2007. Tamkin gained that position with the implicit understanding that he would take a more

aggressive stance in labor relations with United than the previous chair had taken. Robert Domaleski

and Xavier Fernandez, two of the other individual defendants were also officers of the IRC. There was

conflicting evidence on whether the fourth individual defendant, Anthony Freeman, was a member of

the IRC.

Freeman was one of 2172 junior pilots who were furloughed following September 11, 2001.

This group became known as "the 2172." Freeman maintained a password-protected website

specifically for the 2172 in order to facilitate communication among the group's members and protect

their common interests as junior pilots. Pilots who wish to have access to the website must be

personally approved by Freeman or one of two other web administrators. The group deleted accounts

of pilots who signed up with United e-mail addresses, presumably to prevent United from monitoring

the group's communications. The 2172 communicated through postings on the group's website and

through mass e-mails. Freeman discouraged members from posting communications that were not

"meant for paper or electronic communication." In June 2008, Freeman established a telephone tree

for the group, a form of communication that would leave no readily traceable record of the content of

the messages.

The district court noted that the deposition testimony of the four individual defendants varied on

whether Freeman is or ever was a member of the IRC. The testimony also varied on when the

defendants were appointed to the IRC and by whom they were appointed. These significant

discrepancies in the testimony caught the attention of the district court because the four individual No. 08-4157 Page 7

defendants held a meeting on June 11, 2008, shortly before a July sick-out staged by the junior pilots

began, and the subject of that meeting was much disputed. The court found that the discrepancies were

material and "cast doubt on the candor" of the deposition testimony of these defendants. Tamkin and

Freeman testified that Freeman was a member of the IRC; Domaleski and Fernandez testified that

Freeman was not a member of the IRC. The court specifically noted that "[i]f Freeman was not a

member of the IRC, it would have been difficult for defendants to provide an innocent explanation as to

why he met with the IRC members on June 11, 2008."

The court found the discrepancies about the timing of the defendants’ appointments to the IRC

material because the IRC had been disbanded in 2000 and was reactivated either during the current

MEC chairman's tenure or during the tenure of his predecessor. The current MEC chairman, Steven

Wallach, was elected in October 2007. Former MEC chairman Mark Bathurst stepped down at that

time. Tamkin claimed to have been appointed by Bathurst in April 2007, and testified that he

appointed Domaleski, Fernandez, and Freeman in April 2007. Domaleski testified that he, Tamkin and

Fernandez were appointed in approximately November 2007 by the newly elected MEC Chairman

Wallach. Fernandez claimed that he, Tamkin and Domaleski were appointed in May 2007. The court

found that the inconsistencies in these dates could reflect an effort by Tamkin, a friend of Wallach, to

place responsibility for reactivating the IRC on Bathurst rather than on Wallach. United argued

vigorously in the district court that these discrepancies cast serious doubt on the credibility of the four

individual defendants. Yet at the time of the hearing and in briefing, ALPA and the individual

defendants made no effort to explain the discrepancies. The district court concluded that Freeman was No. 08-4157 Page 8

not a member of the IRC and that those who attended the June 11, 2008 meeting were “less than

candid” about what occurred at that gathering.

4.

ALPA used the 2000 slowdown as an example to the pilots during the current dispute. The

pilots engaged in a work slowdown during negotiations that year for a new contract. When a new

agreement was not reached before the amendable date of the prior agreement, ALPA used the IRC to

implement a slowdown campaign. ALPA directed the pilots, through the IRC, to decline voluntary

overtime assignments and to refuse to waive any provisions of the contract. In the summer of 2000,

United experienced a dramatic increase in flight delays and cancellations due to decisions by pilots to

refuse to fly aircraft with minor equipment issues and due to delays in completing pre-flight checklists.

During that time, ALPA publications encouraged pilots to “fly the contract,” a code phrase for strict

adherence to the contract in order to pressure United to make concessions in the new CBA. ALPA

also encouraged pilots to confront any colleagues who were not following ALPA’s directives. During

the summer of 2000, pilots who did not comply with ALPA’s instructions had their names posted on

bulletin boards along with derogatory comments about them, and they received harassing phone calls at

home. The day after United agreed to large wage increases in the 2000 CBA, flight delays and

cancellations returned to near-normal levels.

ALPA used this history and the pilots’ knowledge of this earlier dispute to encourage the 2007

practices. For example, in April 2007, ALPA released a video message telling the pilots that if they

had any doubts about what leverage is and what it could accomplish, they should talk to pilots who

remembered prior negotiations. In September 2007, Wallach told the pilots that the 2000 CBA was No. 08-4157 Page 9

obtained by pilots “forcing the company to negotiate.” Wallach also said that the pilots had to make it

more expensive for the company not to negotiate than to negotiate. As late as June 2008, a MEC

member sent an e-mail to other MEC members reminding them that “[i]n 2000, we brought our CEO

to his knees” because United was delaying reaching a new contract, and that he was prepared to

increase his “level of risk.”

ALPA's actions and communications to pilots in the current job action were very similar to

ALPA's approach during the 2000 work slowdown, and the harassment of non-cooperating pilots also

followed the same pattern. Because 90% of the current pilots were employed by United in 2000, the

district court inferred that the current pilots understood how the elements of a job slowdown would be

implemented, understood what ALPA meant when it used coded phrases like "fly the contract," knew

that they would likely be harassed by their fellow pilots if they failed to comply with ALPA's directives,

and believed that, based on their prior experience, a slowdown campaign would create the leverage

they wanted to give them an advantage at the bargaining table.

5.

The job action that began in 2006 escalated in 2008. In 2008, United faced substantial

increases in the price of jet fuel, resulting in a $2.7 billion net loss in the first six months of 2008. On

June 4, 2008, United announced plans to retire approximately 100 aircraft and to furlough 1450 pilots.

The vast majority of the furloughed pilots were expected to be the same pilots who had been

furloughed after September 11, 2001. In other words, most of the furloughed pilots would be part of

the 2172. A week later, on June 11, 2008, the four individual defendants met. Recall that three of the

individual defendants were indisputably members of the newly reformulated IRC and the fourth was No. 08-4157 Page 10

Freeman, a member of the 2172 who had launched the 2172 website. A month after that meeting, the

junior pilots who were expected to be furloughed began a sick-out that resulted in several hundred flight

cancellations. United had expected that this group of pilots would try to use some of their sick leave

before being furloughed, but the levels exceeded expectations, and when combined with other actions,

such as refusals to take on junior/senior manning assignments, caused substantial disruptions in service

at United.

In 2006, the then-MEC Chairman Bathurst had announced the “Fix it Now” campaign, which

became more aggressive when the new MEC Chairman, Wallach, was appointed. Both MEC

chairmen tied the success of ALPA’s efforts to reopen the 2003 CBA to actions by pilots to create

leverage. ALPA directed the pilots to decline to fly aircraft that had deferrable maintenance (the “Fix it

Now” campaign), to “fly the contract” (that is, to strictly adhere to the contract terms for the purpose of

causing a slowdown), and to “work-to-rule” (another code for the pilots to strictly adhere to contract

terms for the purpose of creating delays and cancellations). In January 2007, United agreed to meet

ALPA to discuss modification of certain work rules if the changes could be effected on a cost-neutral

basis. By the middle of March 2007, the parties reached a tentative agreement on some of these

issues. Although the MEC approved the tentative agreement, ALPA’s members did not, and the deal

fell through. Bathurst released a video in April 2007, addressing the failed agreement, the “Fix it Now”

campaign and the group’s plans to pursue a more aggressive posture in seeking to modify the 2003

CBA. United’s management immediately noticed a slowdown following the release of the video, and

raised the issue with the MEC chairmen in May 2007 and January 2008. Neither MEC chairman

would admit that a job action was underway and ALPA took no action in response to United’s No. 08-4157 Page 11

requests. United continued to offer to address specific concerns, and also increased its pool of reserve

pilots so that the company would be less dependent on junior/senior manning during pilot absences.

On July 14, 2008, MEC Chairman Wallach directed ALPA to terminate negotiations with

United regarding certain quality of life issues, and the sick-out began. On July 21, 2008, after United

requested assistance in ending the sick-out, Wallach sent a letter to the pilots regarding the increase in

sick leave. The district court found that, “[o]n its face, the letter could not reasonably have been

interpreted by United pilots as discouraging the sick-out.” UAL, 2008 WL 4936847, *34. The letter

contained only two sentences indicating that the MEC did not condone the inappropriate use of sick

leave, and that sick leave should only be used for purposes approved in the contract or as required by

law. The court found that the remainder of the letter assured pilots that they were “absolutely entitled to

use sick leave for appropriate circumstances.” The next eight paragraphs included “lengthy lists of the

myriad situations in which a pilot may or must take sick leave-including a wide variety of medical

reasons, as well as various non-medical situations, such as fatigue, stress, and emotionally upsetting

events.” Id. Not entirely unexpectedly, sick leave did not substantially decrease following this letter.

As we noted above, United filed suit approximately one week later, the parties entered into the

Standstill Agreement, and United sought injunctive relief.

6.

The district court concluded that ALPA had ordered a number of job actions focused on

exerting financial pressure on United to force the company to reopen negotiations on the 2003 CBA

before the amendable date required United to do so. In 2006, in addition to the Fix it Now campaign,

the MEC chairman reactivated the MEC’s Strike Preparedness Committee (“SPC”), which had been No. 08-4157 Page 12

inactive for approximately five years. At the time the SPC was reactivated, ALPA could not lawfully

strike for at least three more years under the CBA. ALPA and the MEC chairmen issued statements

and video-taped messages to the pilots employing phrases like “fly the contract” and “work-to-rule,”

which the pilots understood from prior job actions as directives to engage in a slowdown. ALPA

leadership also told the pilots it was not in their interest to waive any contract provisions, and in April

2007, the MEC chairman specifically discouraged the pilots from taking junior/senior manning

assignments. Immediately after this statement, United noticed a substantial drop in the number of pilots

willing to take these assignments. When United management approached ALPA to discuss this drop-

off and also to discuss the posting of “rat lists” naming pilots who took junior/senior manning

assignments, ALPA claimed it had no involvement in any harassment and told the company to take care

of these issues through the normal discipline process. ALPA did not address the complaint about the

drop-off in junior/senior manning. During the remainder of 2007, United and the pilots reached

agreements on a number of smaller issues of concern to the pilots.

Before Wallach began his formal term as chairman of the MEC, he asked United’s

management to start negotiations before the April 2009 date contained in the 2003 CBA. United

asked to meet with Wallach and told him the company was contemplating a merger. United asked

Wallach if they could defer discussions about reopening the contract until the merger discussions were

complete. Wallach agreed to do so if United would implement the failed tentative agreement from

March 2007. United, hoping to stop the slowdown, agreed to implement that agreement if Wallach

would “take the customer out of” the equation, that is, if ALPA would stop engaging in actions that

affected service to customers. Wallach agreed to do so, and did stop certain picketing at corporate No. 08-4157 Page 13

and institutional customers, but did not halt the slowdown campaign. Indeed, after Wallach became the

MEC chairman in January 2008, the district court found that ALPA began a more aggressive campaign

to reopen the contract. During his campaign to be elected MEC chairman, Wallach advocated

attacking the labor laws in Congress, and told the pilots that, although ALPA could not tell pilots

specifically what to do, it could tell pilots to strictly abide by the flight operations manual and the

contract. Wallach also told the pilots he did not consider the illegality of slowdowns under the RLA to

be a serious impediment, telling his audience, “You should use lawyers to get you out of jail when you

do what you need to do.” On his first day in office, Wallach exhorted the pilots to “take back our

airline and reclaim what was stolen from us” during the bankruptcy negotiations. The MEC Updates

issued under Wallach repeatedly reminded the pilots that they were working under a contract

negotiated under the duress of the bankruptcy.

In February 2008, United met again with Wallach and presented him with statistical evidence

regarding operational delays. United asked for Wallach’s help in eliminating service disruptions. But

operational problems did not improve after this meeting. And once United finished merger discussions

in April 2008 (the merger never happened), Wallach resumed the picketing he had earlier halted. That

same month, United and ALPA agreed to jointly address fatigue issues for pilots. In May 2008, the

parties began to negotiate work rules related to fatigue and “quality of work life” issues. Wallach told

United management that there would be consequences if no agreement was reached on these issues by

the end of May. Although Wallach did not describe the consequences, United understood this to be a

threat that ALPA would intensify its disruption of United’s operations during the busy summer months.

On June 4, 2008, United announced its intention to reduce the fleet by 100 aircraft and to furlough No. 08-4157 Page 14

1450 pilots. As a result of this announcement, the parties agreed to turn their attention to negotiating a

furlough agreement. ALPA and United reached a furlough agreement in late June, which the MEC

approved on July 11.

In the meantime, in late June, Wallach convened a closed-door meeting of the MEC, the IRC,

the SPC and the Family Awareness Committee (a subcommittee of the SPC). E-mail chatter

preceding this meeting suggested that some MEC members wanted to “ratchet up the heat” and bring

the United CEO “to his knees.” A few days after the meeting, Wallach sent to United management a

draft letter that he intended to send to the pilots. He told United to “stick it [presumably, the draft

letter] in their decision matrix” on the fatigue negotiations. The letter attacked the competence and

motives of United’s management and suggested that United did not care about the fatigue negotiations.

Wallach delivered a revised version of this letter to the pilots on July 15, 2008. In the revised letter,

Wallach told the pilots that ALPA was terminating negotiations with United on the fatigue and other

“quality of work life” issues. Wallach painted United’s management as “a focused, hostile and arrogant

management group” that did not care about the well-being of the pilots or their families. The letter told

the pilots that they could not get out from under the 2003 CBA unless they started to work on it “now,”

meaning in July, a full eight and a half months before the 2003 CBA allowed for negotiations to begin.

Wallach later testified that he decided to terminate negotiations because they were “out of time” and

“done talking.” The district court questioned this explanation because there was no apparent time

constraint, and the only alternative to continuing negotiations was to engage in a more widespread (and

unlawful) job action. In contrast to Wallach and ALPA’s representations, the district court found that

United was making progress toward a fatigue agreement, and that the company sent a revised proposal No. 08-4157 Page 15

to ALPA which United believed would resolve the only remaining open issue. ALPA never replied to

this proposal.

Based on this and other evidence, the district court found that the true reason for sending the

July 15 letter to the pilots was to foster indignation and animosity towards United, and to encourage the

pilots to engage in more widespread job actions on the premise that United would not agree to ALPA’s

proposals. At Wallach’s direction, ALPA also withdrew from an agreement the parties reached in

September 2007 regarding a web-based trip trading program that the pilots wanted. Withdrawing

from that agreement created a burden on pilots who wanted to trade trips and provided nothing to

ALPA in return. In other words, ALPA took a step against the pilots’ interests, cancelling an

agreement in favor of the pilots, for no apparent reason. The district court found this to be further

evidence that Wallach and ALPA were trying to create animosity among the pilots toward United.

7.

The district court found that ALPA’s current campaign to force United to renegotiate the CBA

mirrored the tactics ALPA employed in the 2000 slowdown. The court found that the current

campaign included refusals to accept voluntary flight assignments such as junior/senior manning; refusals

to waive contract provisions that pilots normally would be willing to waive; creation of flight delays with

lengthy pre-flight cockpit checks; the unnecessary addition of extra fuel to flights; and the creation of

flight delays and cancellations by refusing to fly aircraft with deferrable maintenance items. The court

found that ALPA and the IRC encouraged a sick-out among the junior pilots which, combined with the

refusal to accept junior/senior manning assignments, caused several hundred flight cancellations.

Although ALPA claimed that the letter to the pilots on July 21, 2008 was intended to discourage the No. 08-4157 Page 16

pilots from using sick leave inappropriately, the court found that the vast majority of the letter actually

encouraged the use of sick leave, and that the pilots receiving the letter would have understood it as an

invitation to ramp up sick leave. Indeed, after the pilots received the letter, the use of sick leave

increased. The court found that there was also an extraordinary increase in fatigue calls during the

relevant time. Pilots may call off work on any given day if they believe they are too fatigued to fly. This

is a safety-based, no-questions-asked policy. During the time in question, there was a multifaceted

education program about fatigue-related safety issues. The pilots received messages about fatigue from

United, the FAA, and the airline industry as well as from ALPA and the IRC. The court found that it

was impossible to discern to what extent the increase in fatigue calls was due to illegitimate efforts by

ALPA and the IRC. The court therefore rejected United’s argument that the increase in fatigue calls

was part of any unlawful job action. The district court’s findings on all of these issues are well-

supported by the record and by the court’s careful analysis, and we affirm those findings.

The court also found that ALPA exerted such extraordinary control over the pilots that it could

direct whether the pilots were going to wear their hats on certain days. MEC Updates included a

graphic of a light switch. When the switch was in the “on” position, pilots were to wear their hats, and

when the switch was in the “off” position pilots were to keep their hats off. This exercise in solidarity

and control over the pilots was enormously successful, and some pilots who wore their hats during “off”

periods were threatened with physical violence by other pilots. The court found additional evidence of

ALPA’s ability to control the actions of the pilots, including the immediate success of the Standstill

Agreement in dramatically reducing the use of sick leave. Unlike the counterproductive July 21, 2008

letter, ALPA was able to convey to the pilots that, this time, it really meant it. No. 08-4157 Page 17

Moreover, pilots who did not comply with ALPA’s directives on junior/senior manning found

themselves the subjects of harassment that included “rat lists;” derogatory and threatening notes at work

and at home; graphically violent horror movies delivered to their homes; unauthorized loans taken out in

their names; magazine subscriptions taken out in their names; and harassing phone calls to the pilots,

their spouses and (most appallingly) their children at home. Although ALPA denied that it supported

the harassment, the court concluded from the evidence that ALPA ratified and possibly authorized this

harassment, and that ALPA knew about the harassment and failed to take any meaningful action to

discourage it. The harassment was the mechanism by which ALPA was able to exert control over the

pilots. These findings are also well-supported by the record and we affirm them.

B.

We refer the reader again to the district court’s exhaustive opinion for the court’s conclusions

of law. UAL, 2008 WL 4936847, *35-*47. In a nutshell, the court found that ALPA and the

individual defendants violated Section 2, First of the RLA by directing and encouraging the pilots (1) to

refuse junior/senior manning assignments; (2) to refuse to waive contract provisions; (3) to “fly the

contract” and engage in conduct that would increase flight delays, cancellations and costs to United;

and (4) to engage in a sick-out (especially among the junior pilots) beginning in July 2008. The court

also found that ALPA violated its duty to exert every reasonable effort to stop the disruption of

United’s operations and to stop the harassment of pilots who did not cooperate with ALPA’s

directives. The court found that the defendants engaged in these activities for the purpose of obtaining a

new CBA. The court concluded that this was not a “minor dispute” under the RLA, and that the court

had jurisdiction to enforce Section 2, First of the RLA under these circumstances. United’s claims No. 08-4157 Page 18

were not barred by the six-month statute of limitations contained in the RLA, the court determined,

because the defendants were engaged in a multifaceted, ongoing slowdown campaign that constituted a

continuing violation of the RLA. The court also held that United’s claims were not barred by laches.

The court held that the Norris-LaGuardia Act (“NLGA”), 29 U.S.C. § 101 et seq., does not

prohibit the issuance of a preliminary injunction in these circumstances. Although the NLGA generally

strips courts of jurisdiction to enter injunctions against labor unions in labor disputes, the court noted

that, where a challenged action violates a specific provision of the RLA, the RLA takes precedence

over the NLGA. Under Section 7(a) of the NLGA, the court acknowledged it could not enter an

injunction unless the court found that unlawful acts have been threatened and will be committed unless

restrained or have been committed and will be continued unless restrained. The court rejected ALPA’s

claim that United is no longer suffering operational problems, and that the lawsuit and ALPA’s

subsequent actions have been adequate to address the operational problems. The court found no

support in the record for those contentions. Nor was the court persuaded that the Standstill Agreement

or the defendants’ voluntary cessation of certain activities negated the need for an injunction. Based on

the record we described above, the court believed that the defendants would continue to engage in

unlawful conduct to disrupt United’s operations unless an injunction was entered. In balancing the four

factors for a preliminary injunction, the court found that United had demonstrated a likelihood of

success on the merits, that the company had no adequate remedy at law, that the balance of hardships

weighed in United’s favor, and that the public interest also weighed in favor of United. The court

therefore granted the preliminary injunction, and the defendants have appealed.

II. No. 08-4157 Page 19

The defendants raise four main issues in this expedited appeal. First, they contend that the six-

month statute of limitations bars United’s claim that ALPA engaged in an unlawful job action. Second,

they argue that ALPA has made reasonable efforts under Section 2, First of the RLA in response to the

alleged sick-out. Third, they contend that United has not satisfied the requirements of Section 6 of the

Norris-LaGuardia Act because the company failed to show that the defendants participated in or

ratified any unlawful acts. Finally, the defendants maintain that the requirements of Section 7 of the

NLGA were not satisfied here, and that an injunction was not necessary to prevent a violation of

Section 2, First of the RLA. 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. United Air Lines, Inc. v. Int’l Ass’n of Machinist & Aerospace Workers, 243

F.3d 349, 360 (7th Cir. 2001) (“IAM”).

Because the RLA has no statute of limitations for actions under Section 2, First, we borrow the

six month statute of limitations from section 10(b) of the National Labor Relations Act (“NLRA”), 29

U.S.C. § 160(b). See West v. Conrail, 481 U.S. 35, 37-38 (1987); Brotherhood of Locomotive

Eng’rs v. Atchison, Topeka & Sante Fe Ry. Co., 768 F.2d 914, 919 (7th Cir. 1985). The

defendants contend that United was aware of the job actions in dispute here as much as eighteen

months before the company filed this suit on July 30, 2008. Specifically, the defendants posit that

United was aware of the problems with junior/senior manning in 2006, and knew about ALPA’s other

actions (refusals to waive the contract, delays and cancellations due to refusals to fly aircraft with

deferrable maintenance, the use of excessive amounts of fuel, for example) in 2006 and 2007. Because No. 08-4157 Page 20

United did not file suit until more than six months after those actions commenced, the defendants

maintain that the suit is untimely.

As the district court noted, the defendants’ actions were not discrete acts that occurred outside

the period of limitations. Rather, the actions were a “multi-faceted and ongoing slowdown campaign”

that violated the RLA outside of the limitations period and continued to occur and continued to cause

new harm during the limitations period. The court found that the directives by ALPA to the pilots, and

the pilots’ actions to disrupt United’s operations continued well into the six-month period prior to the

filing of the lawsuit. In fact, the court noted, the continuing campaign against junior/senior manning

contributed to the large number of flight cancellations at the height of the sick-out campaign in July

2008, weeks before United filed suit. The court looked to cases interpreting Section 10(b) of the

NLRA (from which we borrowed the statute of limitations), and found that when a violation begins

outside the period of limitations but continues into the limitations period, the claim is not time barred.

See Atlas Air, Inc. v. Air Line Pilots Ass’n, 232 F.3d 218, 226-27 (D.C. Cir. 2000) (under the

RLA, as in the NLRA, suits for unlawful actions which begin before the limitations period but continue

during the limitations period and continue to cause injury during the limitations period are not time

barred). As the Ninth Circuit explained:

A party may not rely solely on events occurring more than six months before suit was filed to establish a violation of the RLA. However, events occurring outside the limitations period may be proven to shed light on the true character of matters occurring within the limitations period, if evidence exists that is reasonably substantial in its own right that the violation of the RLA upon which the plaintiff relies occurred within the period. The evidence of events within the limitations period, considered apart from earlier evidence which may help to explain the events in question, need not be conclusive; significant or considerable evidence that a violation occurred within the limitations period will suffice. No. 08-4157 Page 21

Association of Flight Attendants, AFL-CIO v. Horizon Air Indus., Inc., 976 F.2d 541, 547-48 (9th

Cir. 1992) (internal citations and quotation marks omitted). See also Local Lodge No. 1424 v.

NLRB, 362 U.S. 411, 416 (1960) (interpreting section 10(b) of the NLRA, and holding that, when

occurrences within the six-month limitations period in and of themselves may constitute, as a substantive

matter, unfair labor practices, earlier events may be utilized to shed light on the true character of matters

occurring within the limitations period).

Here the district court clearly found that, during the limitations period, the defendants were

engaged in unlawful job actions that caused harm to United’s operations. In addition, the full effect of

actions that began before the limitations period was not felt until ALPA initiated additional actions

during the limitations period. For example, the ongoing campaign to refuse junior/senior manning

assignments, which began in 2006, combined with the junior pilot sick-out in July 2008 to force

hundreds of flight cancellations. Neither action alone would have produced the same magnitude of

harm as those actions did together; it was the combination of refusals to accept overtime assignments

combined with a large number of pilots calling in sick that caused the cancellations. This fact alone

distinguishes this case from Limestone Dev. Corp. v. Village of Lemont, 520 F.3d 797 (7th Cir.

2008), and Lewis v. City of Chicago, 528 F.3d 488 (7th Cir. 2008), which the defendants

characterize as irreconcilable with Atlas Air. In each of those cases, the wrongful acts and the injuries

were completed outside the limitations period, although “lingering effects” of the wrongful actions were

alleged. In the instant case, the defendants engaged in unlawful actions before and during the limitations

period that caused injuries before and during the limitations period. The earlier actions shed light on the No. 08-4157 Page 22

actions within the limitations period. And the earlier actions that continued into the limitations period

combined with actions well within the period to create new injuries. United’s action is not time barred.

We can dispense quickly with the defendants’ second argument; it has no merit. The

defendants argue that ALPA made reasonable efforts under Section 2, First to halt the alleged sick-out.

Citing our IAM opinion, they contend that the court may not issue a preliminary injunction against a

union that has promoted improper activity if the union has taken sufficient steps to attempt to end that

activity. They cite ALPA’s July 21, 2008 letter to the pilots as a reasonable attempt to end the sick-

out. But the district court found that this letter contained only a few sentences addressed to ending the

unlawful sick-out and was mostly composed of coded encouragements to continue and even ramp up

the sick-out. As the court noted, the sick-out continued and even increased in intensity following the

letter. Yet after the lawsuit was filed and the parties entered into the Standstill Agreement, ALPA

managed to find a way to communicate to the pilots that they should back off of the sick-out. The July

21 letter was surprisingly ineffective even though ALPA was able to control the pilots at such a level of

minutiae that it could direct when the pilots would wear their hats. The court did not err when it

concluded that ALPA had not engaged in a good faith effort to end the sick-out when it sent the July 21

letter. Rather, ALPA sent the pilots a letter that the pilots would understand to be an invitation to

continue the sick-out. ALPA’s argument on this point consists mostly of a request for this court to

reweigh the evidence and to consider again the district court’s credibility findings. We accord

substantial deference to the district court’s findings of fact, and the defendants do not come close to

demonstrating clear error here. IAM, 243 F.3d at 360-61. No. 08-4157 Page 23

C.

The defendants acknowledge that a court may issue an injunction to enforce the requirements of

Section 2, First of the RLA. But they contend that the requirements of Section 6 of the NLGA must

also be met before an injunction may issue, and that those requirements were not met here. Section 6

of the NLGA provides:

No officer or member of any association or organization, and 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. The defendants assert that Section 6 requires United to provide clear proof that the

defendants participated in, authorized, or ratified the job actions at issue here. United disputes whether

the clear proof standard applies in the context of injunctive relief, maintaining that it applies only to

claims for damages or criminal liability. In IAM, we assumed without expressly deciding that Section 6

applied to claims for injunctive relief. IAM, 243 F.3d at 365-67. See also Air Line Pilots Ass’n v.

United Air Lines, Inc., 802 F.2d 886, 905 (7th Cir. 1986) (hereafter “ALPA”) (in order to establish

that Section 6 does not insulate a union against an injunction, the employer was required to show by

“clear proof” the union’s involvement with sick leave abuse). We need not revisit the use of the clear

proof standard in this case because United still prevails under the higher clear proof standard, which

requires “clear and convincing evidence, as opposed to a preponderance.” ALPA, 802 F.2d at 905.

The defendants argue that the district court clearly erred in finding clear proof that (1) the pilots

engaged in a slowdown in 2008; (2) the pilots engaged in a sick-out in June and July of 2008; (3) No. 08-4157 Page 24

ALPA and the individual defendants authorized or ratified messages posted on the MEC Forum or the

website for the 2172; (4) the individual defendants who were members of the IRC instigated a sick-out;

and (5) ALPA’s July 15 letter from Wallach was intended to foster indignation and animosity among

the pilots toward United, and thus encourage them to engage in more widespread job actions. The

defendants counter these findings by explaining that (1) any increase in delays and cancellations can be

explained by “the most challenging operating environment in aviation history” that occurred in 2008; (2)

any increase in sick leave usage was not the result of a concerted sick-out but rather was the expected

result of United’s announcement that it intended to retire 100 aircraft and furlough 1450 pilots; (3) there

was no evidence that ALPA or the individual defendants authorized or ratified the messages posted on

the MEC Forum or the 2172 website; (4) the individual defendants actually tried to prevent their sick-

out in the June 11 meeting; and (5) there was nothing unlawful about the July 15 letter and no evidence

that any pilots called in sick as a result of that letter.

We note again that we owe great deference to the district court’s findings of fact and will

reverse them only for clear error. IAM, 243 F.3d at 360-61. 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. 802 F.2d at 905-06. 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. Phrases such as “work safe,” “work by the book,” “adhere to strict contractual

requirements,” “not to neglect even the most minor write ups,” “check every item on the checklists,” No. 08-4157 Page 25

were all recognized as coded signals to engage in a slowdown. 243 F.3d at 366-67. In ALPA, we

suggested that statistical evidence plus a notice posted on a union’s bulletin board could suffice as clear

proof. 802 F.2d at 367. In IAM, we found that the union’s directives to workers to “work safe,” to

clean their boxes and tools daily, and to shut down and fix anything that is not safe, combined with

statistical evidence, were clear proof of a union’s authorization of a slowdown. 243 F.3d at 367.

With those standards in mind, we turn to the evidence on which the district court relied in

finding that United had clearly proved the defendants’ involvement in various job actions. First, the

court relied on statistical evidence regarding increases in the use of sick leave, in refusals to accept

junior/senior manning assignments, and in flight delays and cancellations. Second, and more

importantly, the court also relied on the many messages that the defendants conveyed to the pilots

during the relevant time frame. Among those messages were repeated directives to “fly the contract,”

to not waive any part of the contract, to decline junior/senior manning assignments, to “fix it now,” and

to “work-to-rule.” Some of these directives appeared on websites and in mass e-mails, the twenty-first

century equivalents of a bulletin board. Some communications occurred through channels that were

decidedly less traceable such as phone trees. The court based its conclusions that the pilots understood

these to be coded phrases to engage in job actions on prior disputes between the company and the

pilots where similar phrases were employed, finding those prior disputes relevant because so many of

the pilots involved in the earlier actions were still on the job. Other evidence before the court included

the July 15, 2008 letter that the court determined was designed to increase indignation and animosity

among the pilots toward the company. We will not repeat the district court’s complete findings. We

affirm those findings because, contrary to the defendants’ contentions, the court relied on a wealth of No. 08-4157 Page 26

evidence in rejecting the defendants’ alternative explanations for the increases in sick leave usage, flight

delays and cancellations.

We addressed above the appropriateness of the district court’s findings regarding the July 21,

2008 letter related to sick leave usage. The defendants also complain that the court erred by drawing a

negative inference from the failure of the individual defendants to testify at the hearing regarding the June

11, 2008 meeting regarding the sick-out. The defendants, however, have mischaracterized the court’s

analysis. The court found that there were material inconsistencies in the deposition testimony of the four

individual defendants regarding the composition of the IRC, the timing of their appointments to the IRC,

and the content of the June 11 meeting. From those inconsistencies alone the court concluded that the

defendants were not candid in their claims about the June 11 meeting or the composition of the IRC.

The court was merely noting that the defendants had an opportunity to clarify the inconsistencies and

did not. In the absence of any explanation, the court adhered to its view that the individual defendants

lacked credibility in their deposition testimony. There was nothing inappropriate in drawing that

inference and adhering to it in the absence of any evidence to the contrary.

As for the July 15 letter, the court was correct to consider its content and tone in relation to all

of the other evidence about the job actions. The letter used inflammatory language and informed the

pilots that it was necessary to begin working on a new CBA “now,” more than eight months before the

2003 CBA allowed for negotiations to begin. In the context of everything else that was going on at the

time, the July 15 letter was one more piece of evidence that the increased sick leave, flight delays and

cancellations were not coincidental and could not be explained by the challenging operating conditions No. 08-4157 Page 27

faced by the company. The district court did not err in finding that United clearly proved that the

defendants authorized and/or ratified the unlawful job actions.

D.

Finally, the defendants argue that the district court erred in finding the requirements of Section 7

of the NLGA satisfied, contending that the injunction was not necessary to prevent a violation of

Section 2, First of the RLA. The RLA, the starting point of our analysis, was enacted, in part, to avoid

interruptions to commerce or to the operation of carriers engaged in commerce. See 45 U.S.C. §

151a. The RLA seeks to encourage collective bargaining and to avoid wasteful strikes and

interruptions of interstate commerce. IAM, 243 F.3d at 361; ALPA, 802 F.2d at 895. In order to

accomplish this goal, Section 2, First of the RLA imposes on both management and labor a duty to

“exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and

working conditions, and to settle all disputes . . . in order to avoid any interruption to commerce or to

the operation of any carrier growing out of any dispute between the carrier and the employees thereof.”

45 U.S.C. § 152. The Supreme Court has characterized this duty as the heart of the RLA. See

Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377-78 (1969).

During all labor negotiations, the parties are obliged under the RLA to maintain the status quo with

respect to pay, work rules and working conditions. IAM, 243 F.3d at 361-62. If either management

or labor engages in conduct that violates the RLA, a court may enjoin the unlawful activity. IAM, 243

F.3d at 362.

But when a carrier is seeking to enjoin the activities of a union, “a court must look not only to

the RLA but also to the NLGA to determine whether the court has jurisdiction.” IAM, 243 F.3d at No. 08-4157 Page 28

362 (quoting Delta Air Lines, Inc. v. Air Line Pilots Ass’n, 238 F.3d 1300, 1305 (11th Cir. 2001)).

As a general rule, the NLGA strips courts of jurisdiction to enter injunctions against labor unions in

cases growing out of labor disputes. Section 7 of the NLGA provides, in relevant part:

No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as defined in this chapter, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court, to the effect--

(a) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons, association, or organization making the threat or committing the unlawful act or actually authorizing or ratifying the same after actual knowledge thereof;

29 U.S.C. § 107. Reading the RLA and the NLGA together, the Supreme Court has held that when a

challenged action violates a specific provision of the RLA (such as the status quo provisions), the court

may enter an injunction against a union using the standards set forth in the NLGA. Pittsburgh & Lake

Erie R.R. Co. v. Ry. Labor Executives’ Ass’n, 491 U.S. 490, 513 (1989); IAM, 243 F.3d at 362.

As we stated in IAM, “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.”

243 F.3d at 362. However, “this exception is a limited one which applies only if an injunction is the

only, practical, effective means of enforcing the duty to exert every reasonable effort to make and

maintain agreements, or if that remedy alone can effectively guard the plaintiff's right.” IAM, 243 F.3d

at 362-63 (internal citations and quotation marks omitted). See also Burlington Northern & Santa

Fe Ry. Co. v. Brotherhood of Locomotive Eng’rs, 367 F.3d 675, 679 (7th Cir. 2004) (where there No. 08-4157 Page 29

are other effective means available to ensure compliance with the provisions of the RLA, an injunction

should not issue).

The defendants contend that the district court erred in finding that the NLGA did not bar the

issuance of an injunction here. According to the defendants, United did not meet its burden of

demonstrating that any unlawful activity would continue in the absence of an injunction. The defendants

assert that the district court committed an error of law when it reversed the burden and required that the

defendants demonstrate that their unlawful conduct had ceased. The defendants maintain that United

presented no evidence that the company continued to suffer operational difficulties after the parties

entered into the Standstill Agreement. With the Standstill Agreement in place, the defendants argue,

there was no need to enter the injunction. At oral argument, we asked the defendants whether it was

ever appropriate to enter a preliminary injunction once a union had signed a “standstill agreement.” The

defendants said an injunction would be appropriate at that point only if there was also evidence that the

union’s subsequent actions and statements were not consistent with the standstill agreement.

In this case, the district court in fact found that the defendants’ subsequent actions and

statements were not consistent with the Standstill Agreement. Although some of the job actions

declined following the Standstill Agreement, some then increased again after the initial decline. For

example, although sick leave usage initially declined following the signing of the Standstill Agreement, it

then increased, albeit not to prior levels. And the post-Standstill sick leave usage, although lessened

from the peak of the sick-out, continued to greatly exceed expected levels of usage. The pilots also

continued to refuse junior/senior manning assignments at greatly reduced rates following the Standstill

Agreement. The district court was also aware that the promises made in the Standstill Agreement were No. 08-4157 Page 30

not made in a vacuum. The court considered the history of ALPA’s actions in this dispute and in prior

labor disputes. During those disputes, as well as the current one, ALPA exerted great control over the

pilots. The pilots were aware that they would face harassment and ostracism if they failed to follow

ALPA’s directives. During the current dispute, when United asked for ALPA’s assistance in curbing

the sick-out, ALPA sent out a letter that, with a wink and a nod, actually resulted in an increase in sick

leave. ALPA continues to insist that the July 21 letter was a good faith effort to end the sick-out. The

district court was entitled to conclude that only an injunction would put a halt to the unlawful actions in

light of that continued insistence. Only when faced with the litigation did ALPA accede to the Standstill

Agreement and issue a directive that had any real effect on lowering sick leave usage. Even then, it did

not eliminate the problem. The court considered the defendants’ action in entering into the Standstill

Agreement as one factor among many in determining that “an injunction is necessary to enforce the

defendants’ status quo obligations under the RLA.” UAL, 2008 WL 4936847, *43.

We agree that a voluntary cessation of wrongful conduct is a factor for the court to consider in

deciding whether an injunction is necessary. See Milwaukee Police Ass’n v. Jones, 192 F.3d 742,

747 (7th Cir. 1999) (voluntary cessation of activity does not render a case moot unless the defendant

can demonstrate that there is no reasonable expectation that the wrong will be repeated).1 The

defendants have attempted to characterize the Standstill Agreement as a “voluntary” cessation of any

job actions. The district court, however, was within its discretion to find that an agreement signed only

1 We understand that the defendants are not arguing that the case is moot because of the Standstill Agreement. Rather, the defendants claim that because of the Standstill Agreement, no injunction is necessary under the NLGA and the preliminary injunction should be dissolved. We nonetheless find the mootness cases relevant to the analysis of voluntary cessations. No. 08-4157 Page 31

after a lawsuit has been filed is not voluntary, and that even a voluntary cessation is not determinative.

The court may consider how easily former practices might be resumed at any time in determining the

appropriateness of injunctive relief. Id. ALPA and the defendants had employed means of

communication, such as the telephone trees, that left no trail of evidence. Without the threat of

contempt, the district court could reason that ALPA would continue to say one thing in public and to

the court, and another thing to its members.

The SPC - the Strike Preparedness Committee - had been reactivated. ALPA had

demonstrated an ability to convey messages secretly to pilots who feared retaliation based on prior

experience. The individual defendants had been “less than candid” in their testimony. In combination

with the other facts we describe above, the court was within its discretion in finding that an injunction

was the only means of assuring compliance with the status quo provisions of the RLA. See Burlington

Northern, 367 F.3d at 678 (we review an order to grant or deny a preliminary injunction under a

highly deferential abuse of discretion standard).

III.

For the reasons stated above, we affirm the judgment of the district court.

AFFIRMED.