United Air Lines, Inc. v. Air Line Pilots Ass'n

• Decision Date: 09 March 2009
• Docket Number: No. 08-4157.,08-4157.
• Citation: 563 F.3d 257
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

563 F.3d 257

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.

No. 08-4157.

United States Court of Appeals, Seventh Circuit.

Argued February 24, 2009.

Decided March 9, 2009.^*

Published March 23, 2009.

Tom A. Jerman, Attorney, O'Melveny & Myers, Los Angeles, CA, for Plaintiff-Appellee.

Michael E. Abram, Attorney, Cohen, Weiss & Simon, New York, NY, for Defendants-Appellants.

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 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 same 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 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.

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 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 for 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 ALPA's only means of 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. 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...