United Air Lines, Inc. v. LOCAL 851

• Citation: 697 F. Supp. 616
• Decision Date: 30 September 1988
• Docket Number: No. CV-88-2537.,CV-88-2537.
• Parties: UNITED AIR LINES, INC., Plaintiff, v. LOCAL 851, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

697 F. Supp. 616

UNITED AIR LINES, INC., Plaintiff, v. LOCAL 851, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., Defendants.

No. CV-88-2537.

United States District Court, E.D. New York.

September 30, 1988.

Richard Schoolman, Eikenberry, Futterman & Herbert, New York City, for plaintiff.

Stephen Kahn, New York City, for defendants.

MEMORANDUM AND ORDER

GLASSER, District Judge:

In this case of first impression involving the Railway Labor Act, 45 U.S.C. §§ 151-188 ("the RLA"), plaintiff United Airlines ("United") asks the Court to preliminarily enjoin a secondary picket against its cargo loading facilities by defendant Airline Division of the International Brotherhood of Teamsters ("the Teamsters"). The Teamsters' dispute is with, and its primary strike is against, Virgin Atlantic Airways, Ltd. ("Virgin"), which is not a party to this action.

The unique facts of this case require the court to answer the following principal questions:

(1) Where the National Mediation Board conducts a union representation election in which it counts the votes of nonemployees, even though the Board knows that a federal court has dismissed the reinstatement actions of those non-employees, and the votes of those non-employees determine the outcome in favor of a union, but the employer thereafter absolutely refuses either to recognize the Board's certification or to deal with the union — must the union bring an action in federal court to enforce the certification before engaging in a primary strike and secondary picketing?

(2) If the union is obligated to bring such an action under those circumstances, but instead engages in a primary strike and secondary picketing, can the target of the secondary picketing obtain an injunction?

For the reasons stated below, this court will answer both questions in the affirmative.

I. DISCUSSION

In order to prevail on a motion for preliminary injunction in a case such as this, plaintiff must establish (a) irreparable harm to itself, or to the public interest in the uninterrupted flow of commerce, see Virginian Railway Co. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789 (1937), and (b) either (1) likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979); Local 553, Transport Workers Union of America, AFL-CIO v. Eastern Air Lines, Inc., 695 F.2d 668, 675 n. 5 (2d Cir.1982).

A. Likelihood of Success on the Merits/Presence of Serious Question

1. Facts.

The following facts are undisputed.

During the course of a campaign to organize the fleet service workers of Virgin Atlantic Airways, the Teamsters and six former Virgin Atlantic fleet service employees commenced an action in federal district court alleging that the six employees had been discharged in violation of the RLA because of their support for the organizing drive. The suit also alleged that Virgin had unlawfully interfered with, influenced and coerced its employees during the Teamsters' organizing campaign. (Ex. 6 at p. 7). Before trial, two of the six individual plaintiffs were rehired. (Id. at pp. 8, 12). The trial was held on April 25 and 26, 1988, coinciding with the scheduled counting of union certification election ballots on April 25, in an election conducted by the NMB pursuant to RLA § 152 Ninth to determine whether the Teamsters would represent Virgin's fleet service workers in collective bargaining.

Under the NMB's rules for counting ballots in union certification elections, dismissed individuals are only eligible to vote so long as they have an action pending before a court of competent jurisdiction for reinstatement due to wrongful dismissal. NMB Rules and Regulations § 1206.6, 29 C.F.R. § 1206.6, and NMB Representation Manual § 5.304 (Ex. 3). Since, as a result of another NMB ballot-counting rule, the votes of the four dismissed employees could determine the outcome of the election, Virgin asked the NMB to delay counting the ballots for one day, and to impound the ballots of the four plaintiffs who had not been reinstated. (Ex. 2). Although the NMB denied Virgin's requests, the ballot count was postponed for unrelated reasons from April 25 to April 27 at 2:00 p.m. (Exs. 4, 5).

At 11:20 a.m. on April 27, the federal district court announced its ruling that the individual plaintiffs were not wrongfully discharged.¹ Hodges v. Virgin Atlantic, No. 88 Civ. 1370 (LLS) (S.D.N.Y., June 10, 1988) available on WESTLAW, 1988 WL 36488. (Ex. E). Inexplicably, on that same day, having been apprised of the court's decision by Virgin's counsel before the ballots were counted, the NMB nevertheless included the ballots of the four plaintiffs in the certification election count. (Transcript of August 23, 1988 Hearing "TR" 14, Ex. 7). Those four votes swung the election. On the basis of this disputed tally, the NMB certified the Teamsters as the representative of Virgin's fleet service employees. Virgin Atlantic Airways, 15 NMB No. 55 (1988). (Ex. A). The NMB denied Virgin's request for reconsideration on May 20, 1988. (TR 18).

Believing that the NMB certification lacked any legal basis, Virgin refused to recognize it or the Teamsters, and refused absolutely to negotiate.² (TR 17). Its position continues to be that there is "no union" at Virgin Atlantic Airways (TR 16, 86-87), and it has acted in accordance with that position, not only in refusing to bargain but in unilaterally changing pay rates, shift hours and work rules.³

Unable to bring Virgin to the bargaining table, the Teamsters began a strike against Virgin on July 6, picketing at Virgin's Newark and Kennedy International Airport terminals. (TR 61).

The Teamsters subsequently applied to the NMB to furnish mediation services pursuant to 45 U.S.C. § 152 Ninth, and a mediation session was held on August 8, 1988,⁴ at which Virgin again refused to negotiate. (TR 15-16, 63). On or about that same day, the Teamsters notified United that it was contemplating expanding its activities to include secondary picketing at United's Kennedy and Newark job sites. (TR 64-65). The following day, Virgin fired the striking workers (Ex. C), and less than a week later, the Teamsters expanded the picketing to United's job sites.⁵ On August 23, 1988, this court granted a temporary restraining order enjoining this secondary picketing by the Teamsters against United.

2. Statutory Framework.

If the Teamsters have no right under the RLA to engage in a primary strike against Virgin, they have no right to engage in a secondary picket against United.⁶ Thus, the likelihood of plaintiff succeeding on the merits in this action turns on application of the RLA to the dispute between the Teamsters and Virgin.⁷ Background regarding the RLA therefore is a prerequisite to discussing the parties' conflicting theories of this case.

The "primary goal of the RLA is to settle strikes and avoid interruptions to commerce." Burlington Northern Railroad Company v. Brotherhood of Maintenance of Waye Employes, 481 U.S. 429, 107 S.Ct. 1841, 1854, 95 L.Ed.2d 381 (1987). "In adopting the Railway Labor Act, Congress endeavored to bring about stable relationships between labor and management in this most important national industry." Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Co., 353 U.S. 30, 40, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957).

The Act establishes different dispute-resolution mechanisms for different types of disagreements. See Air Line Pilots Association v. Texas International Airlines, Inc., 656 F.2d 16, 20 n. 6 (2d Cir.1981). "Representation disputes," which involve controversies surrounding the designation and authorization of representatives of employees covered by the RLA, are committed to the exclusive jurisdiction of the NMB. 45 U.S.C. § 152 Ninth. See Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). The NMB must, upon the request of either party, investigate the representation dispute and certify within 30 days the representative of the craft or class of employees in question. This certification procedure is "the sole and mandatory means for resolving disputes over representation." Summit Airlines, Inc. v. Teamsters Local Union No. 295, 628 F.2d 787 (2d Cir.1980); AMR Services Corp. v. International Brotherhood of Teamsters, 658 F.Supp. 259, 262 (E.D.N.Y.), aff'd per curiam, 821 F.2d 162 (2d Cir.1987). Once the certification is granted, the carrier is obliged by 45 U.S.C. § 152 Ninth to "treat with" the certified employee representative. The Supreme Court long ago held that this obligation is mandatory and that a union may enforce it by obtaining an injunction. Virginian Railway Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937). As discussed below, the availability of this simple judicial remedy lies at the heart of the controversy in this case.

"Major disputes" involve attempts to change rates of pay, rules, or working conditions, 45 U.S.C. § 155 First (a). Another formulation, employed by the Supreme Court, defines a major dispute as one concerning the "formation of collective agreements or efforts to secure them." Burlington Northern, 107 S.Ct. at 1844 quoting Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1945)).⁸ In such cases, the NMB is to use its best efforts to bring the parties to an agreement or, if these mediation efforts fail, to induce them to submit to arbitration. If this also fails, no change shall be made in rates of pay, rules, or working conditions or established practices for 30 days and, if within that period an emergency board is created, for 30 days after its report. 45 U.S.C. § 155, 156, 160. After this process is exhausted, the parties...