Arcamuzi v. Continental Air Lines, Inc.

• Decision Date: 15 June 1987
• Docket Number: No. 86-6098,86-6098
• Parties: 125 L.R.R.M. (BNA) 2938, 43 Empl. Prac. Dec. P 37,159, 106 Lab.Cas. P 12,425 William ARCAMUZI, Warren Beckman and Robert E. Schaefer, et al., Plaintiffs-Appellants, v. CONTINENTAL AIR LINES, INC. and Texas International Airlines, Inc., dba Continental Airlines, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 935

819 F.2d 935

125 L.R.R.M. (BNA) 2938, 43 Empl. Prac. Dec. P

37,159,

106 Lab.Cas. P 12,425

William ARCAMUZI, Warren Beckman and Robert E. Schaefer, et al., Plaintiffs-Appellants, v. CONTINENTAL AIR LINES, INC. and Texas International Airlines, Inc., dba Continental Airlines Defendants-Appellees.

No. 86-6098.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 30, 1986.

Decided June 15, 1987.

Jonathan Saperstein, Washington, D.C., Walter S. Cowger, Dallas, Tex., Jeffrey A. Berman and Steven G. Drapkin, Los Angeles, Cal., for defendants-appellees.

Jed S. Rakoff and James Niss, New York City, Carla M. Woehrle, Los Angeles, Cal., for plaintiffs-appellants.

Appeal from the United States District Court for the Central District of California.

Before SCHROEDER, POOLE and NORRIS, Circuit Judges.

SCHROEDER, Circuit Judge:

Plaintiffs are pilots employed by Continental Air Lines who have been active in their union, the Air Line Pilots Association (ALPA). This suit arose out of ALPA's bitter strike against Continental, which began in October 1983 and continued for two years. After the strike ended, plaintiffs sought an injunction to bar Continental from requiring them to take polygraph tests as a condition of their continued employment or reinstatement. They contend that the polygraph requirement is retaliation for protected, concerted union activity under section 2 (Fourth) of the Railway Labor Act (RLA), 45 U.S.C. Sec. 152 (Fourth) (1982). They appeal the district court's denial of their motion for a preliminary injunction.

The denial of a preliminary injunction will be reversed only if the trial court abused its discretion or applied an improper legal standard. Benda v. Grand Lodge of Int'l Ass'n of Machinists & Aerospace Workers, 584 F.2d 308, 314 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). Because we hold that the district court failed to consider the potential non-economic harm which may flow from retaliation for protected union activity, we remand the action to the district court to exercise its discretion in light of the appropriate irreparable injury standards.

Section 2 (Fourth) of the RLA provides:

No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, ... or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization

....

Id. An implied private right of action exists under this section. Burke v. Compania Mexicana de Aviacion, S.A., 433 F.2d 1031, 1034 (9th Cir.1970). Accord Stepanischen v. Merchants Dispatch Transp Corp., 722 F.2d 922, 927 (1st Cir.1983); United States v. Winston, 558 F.2d 105, 108 & n. 3 (2d Cir.1977); Adams v. Federal Express Corp., 547 F.2d 319, 321 (6th Cir.1976), cert. denied, 431 U.S. 915, 97 S.Ct. 2177, 53 L.Ed.2d 225 (1977); Conrad v. Delta Air Lines, Inc., 494 F.2d 914, 918 (7th Cir.1974). Moreover, injunctive relief is available to protect employees' organizational rights under the RLA. Texas & N.O.R.R. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548, 571, 50 S.Ct. 427, 434, 74 L.Ed. 1034 (1930) (enforcing by injunction section 2's prohibition against anti-union coercive measures by carrier). As we stated in Burke, the courts are "free to fashion appropriate civil remedies" to give full effect to the RLA's congressional purpose. 433 F.2d at 1033.

The ALPA strike followed Continental's filing of a Chapter 11 petition for reorganization in bankruptcy court. When the strike against Continental was settled in October 1985, the bankruptcy court entered an "Order and Award" setting forth the terms of the settlement. The Order and Award expressly proscribed retaliation against employees for their participation in legal union activities. These plaintiffs, who participated in the strike and were active in the union, elected to return to work with Continental. Continental, however, sent each plaintiff a letter instructing him to report to its headquarters in Houston for a polygraph examination concerning his role in the illegal activities that took place during the strike. The letter warned the pilots that if they failed to comply with the order Continental would terminate their employment.

The plaintiffs maintain that the polygraph examination requirement is motivated by anti-union animus in violation of the RLA. They submit that the requirement is part of a scheme to influence, coerce, and interfere with plaintiffs' rights to engage in legitimate union activities. Accordingly, the pilots refused to take the polygraph examination. Continental claims that the purpose of the polygraph examination is to further its efforts to identify those persons who were responsible for illegal activities during the strike. The Airlines indisputably has no hard evidence that plaintiffs were in fact involved in illegal conduct. Moreover, plaintiffs point out that Continental has already had an opportunity to question them during the discovery proceedings of a prior lawsuit, and that the results of the polygraph would not be admissible in court. They maintain that Continental has singled them out in retaliation for their lawful strike participation. Plaintiffs filed this action against Continental seeking a preliminary injunction prohibiting Continental from requiring them to take the polygraph examination as a condition of reinstatement or continued employment. ¹

In this circuit, preliminary injunctive relief is available to a party who demonstrates either (1) a combination of probable success and the possibility of irreparable harm, or (2) that serious questions are raised and the balance of hardship tips in its favor. Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Id. If the plaintiff shows no chance of success on the merits, however, the injunction should not issue. Benda, 584 F.2d at 315. As an "irreducible minimum," the moving party must demonstrate a fair chance of success on the merits, or questions serious enough to require litigation. Id.; Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d 750, 753 (9th Cir.1982). Under any formulation of the test, the moving party must demonstrate a significant threat of irreparable injury. Oakland Tribune, 762 F.2d at 1376.

The district court recognized that a preliminary injunction is available under the RLA if the plaintiffs establish a significant chance of success on the merits and irreparable injury. The court went on to state, however, that the likelihood of success in this case was "insufficiently established" and that irreparable injury was "unlikely." The parties have spent a great deal of time in their briefs interpreting the district court's statements. We have carefully reviewed the district court's written order and the hearing transcript to properly understand its decision.

The district court's denial of injunctive relief in this case was not based upon its determination that the plaintiffs could not succeed on the merits. ² Rather, the court concluded that even if the polygraph requirement violated federal labor law, any harm could be repaired by invocation of the post-discharge hearing procedures established by the Order and Award. The district court stressed that under the Order and Award, "if the polygraph examinations, when taken, result in discharge or other discipline, a review on the merits is available to plaintiffs." Thus, according to the district court, there could be no irreparable injury.

It is here that the district court erred. The only remedies available in the bankruptcy court pursuant to the Order and Award would be reinstatement and damages. Such relief would in time remedy economic loss, and temporary economic loss alone generally is not a basis for injunctive relief. See D. Dobbs, Remedies Sec. 12.25 (1973) (discussing traditional relief for breach of employment contracts). See also Sampson v. Murray, 415 U.S. 61, 89-91, 94 S.Ct. 937, 952-53, 39 L.Ed.2d 166 (1974) (reversing injunction against firing of probationary government employee because loss of earnings not irreparable harm) (citing Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958) (mere injuries in terms of money, time and energy, however substantial, do not constitute irreparable injury)). But more than economic harm is involved when an employer retaliates against protected activity. Damages and reinstatement would not remedy the coercive and inhibitory effects upon the employees' organizational rights secured by the RLA. Such harm is irreparable.

The Third Circuit has recognized this principle in the context of the National Labor Relations Act, to which courts often refer for assistance in construing the RLA. See, e.g., Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383, 89 S.Ct. 1109, 1118, 22 L.Ed.2d 344 (1969); Conrad, 494 F.2d at 917-18. In Eisenberg v. Wellington Hall Nursing Home, Inc., 651 F.2d 902, 906 (3d Cir.1981), the Third Circuit considered a petition for a preliminary injunction to prevent alleged retaliatory conduct. The district court had held that, because the Board could order reinstatement with backpay, no irreparable harm would result from retaliatory discharges for union participation. The Third Circuit reversed. The court of appeals observed that the district court's reasoning misapprehended the statutory purpose of protecting the integrity of the collective bargaining process. Id. at 906-07. Recognizing that the discharge of active union supporters risks a serious adverse impact on employee...