US Airways, Inc. v. USA Airline Pilots Ass'n, 3:11–cv–371–RJC–DCK.

• Decision Date: 28 September 2011
• Docket Number: No. 3:11–cv–371–RJC–DCK.,3:11–cv–371–RJC–DCK.
• Citation: 161 Lab.Cas. P 10410,191 L.R.R.M. (BNA) 2910,813 F.Supp.2d 710
• Court: U.S. District Court — Western District of North Carolina
• Parties: US AIRWAYS, INC., Plaintiff, v. US AIRLINE PILOTS ASSOCIATION and Michael J. Cleary, Defendants.

161 Lab.Cas. P 10,410

191 L.R.R.M. (BNA) 2910

813 F.Supp.2d 710

US AIRWAYS, INC., Plaintiff,

v.US AIRLINE PILOTS ASSOCIATION and Michael J. Cleary, Defendants.

No. 3:11–cv–371–RJC–DCK.

United States District Court, W.D. North Carolina,Charlotte division.

Sept. 28, 2011.

Fred M. Wood, Jr., Charles Bailey King, Jr., Jonathan P. Heyl, Robert Reed Marcus, Smith Moore Leatherwood LLP, Charlotte, NC, Mark Wayne Robertson, O'Melveny & Myers, New York, NY, Michael McGuinness, Robert Alan Siegel, O'Melveny & Myers, L.L.P., Los Angeles, CA, for Plaintiff.

Brian O'Dwyer, Zachary Richard Harkin, O'Dwyer & Bernstien LLP, New York, NY, John West Gresham, Tin, Fulton, Walker & Owens, Charlotte, NC, Patrick Joseph Szymanski, Patrick J. Szymanski, PLLC, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT J. CONRAD, JR., Chief Judge.I. BACKGROUND

On July 29, 2011, Plaintiff U.S. Airways, Inc. (U.S. Airways) filed a Complaint for Injunctive Relief (Doc. No. 1) and Motion for Preliminary Injunction (Doc. No. 10) against Defendants U.S. Airline Pilots Association (USAPA) and the president of USAPA, Michael Cleary (Cleary or Captain Cleary). Plaintiff alleges that the defendants have engaged in a campaign “to cause nationwide flight delays and cancellations in order to put pressure on U.S. Airways in its current collective bargaining negotiations” with USAPA in violation of the “status quo” provisions of the Railway Labor Act (RLA). See (Doc. No. 1 at ¶ 1, citing 45 U.S.C. § 152, First). On August 8, 2011, Plaintiff moved for a Temporary Restraining Order (TRO) (Doc. No. 29), and this Court held a TRO hearing on August 12, 2011. The day before the TRO hearing, the defendants filed a motion to dismiss, transfer, or stay the case (Doc. No. 34), which this Court denied on August 17, 2011 (Doc. No. 51). After hearing oral argument, this Court stayed a ruling on the TRO motion and set the matter for a preliminary injunction hearing (Doc. No. 42 at 38).

The parties presented evidence and testimony on the instant motion for preliminary injunction during an in-court hearing on August 19, 2011.¹ Having considered the evidence received and the arguments of the parties, this Court GRANTS the Plaintiff's Motion for Preliminary Injunction against USAPA. The Court enters the following findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

II. FINDINGS OF FACTA. Overview

US Airways claims that beginning on May 1, 2011, USAPA has instigated a work slowdown under the guise of a “safety campaign” in order to put pressure on U.S. Airways in the ongoing contract negotiations. The elements of this slowdown include encouraging pilots to delay flight departures, delay completing certain training requirements, decline to fly on the basis of fatigue, and increase maintenance write-ups. US Airways also alleges that USAPA has threatened to expose and retaliate against those pilots who do not participate in the slowdown. USAPA insists that its safety campaign is designed to address a flawed safety culture at U.S. Airways and not to gain leverage in the ongoing contract negotiations.

B. The Parties

US Airways is a commercial air carrier, with domestic and international operations, that is subject to the RLA. The airways is headquartered in Tempe, Arizona, while its largest operation is at the Charlotte hub. It employs approximately 32,000 people, 5,200 of whom are pilots. In May 2005, America West Holdings Corp. (America West) and U.S. Airways announced that they would merge into one entity, known as U.S. Airways, effective September 27, 2005. Under the Merger Agreement, U.S. Airways Group, Inc., which was then operating under Chapter 11 bankruptcy protection, would be reorganized, and the reorganized entity, known as “US Airways,” would own and control the former America West and U.S. Airways.

USAPA is the certified collective bargaining representative for pilots employed by U.S. Airways. The association represents the 5,200 pilots and has four national officers: a President, Vice–President, Executive Vice–President, and Secretary–Treasurer. USAPA also has an 11–person Board of Pilot Representatives and maintains approximately 20 standing committees, including the Safety Committee, Accident Investigation Committee, and the Strike Preparedness Committee. Captain Cleary became president of USAPA on April 18, 2009 in the association's first national election of officers.

USAPA communicates with its members in many ways, including via email, videos, meetings, and through its robust website. Many of the USAPA communications received in evidence during the preliminary injunction hearing were bulletins and “Updates” sent to pilots by email, which were also posted on USAPA's website. Additionally, USAPA communicates with its members through channels that are only available to union members, such as the “Members Only” area of its website.

C. Background to Current Labor Dispute

Both sides presented evidence regarding the history of the current labor dispute, which has involved a merger as well as legal actions in Arizona and New York.

1) Merger Between U.S. Airways and America West

When U.S. Airways and America West Holdings Corp. merged, the “East pilots,” employed by pre-merger U.S. Airways, the “West pilots,” employed by pre-merger America West, and the merging companies agreed to a collectively-bargained multilateral agreement. This agreement supplemented and amended the collective-bargaining agreement (CBA) that existed at the time of the merger.

An integrated seniority list had to be created, and a dispute arose between the East and West pilots as to their relative placement on this list. Pursuant to the Merger Policy of the union that preceded USAPA, the Air Line Pilots Association (ALPA), the dispute was submitted to “final and binding” arbitration. The arbitration panel, chaired by George Nicolau, issued its award (the Nicolau Award) in May 2007. A majority of East pilots opposed implementation of the Nicolau Award. The East pilots outnumbered the West pilots (about 5,100 to 1,900), so they successfully decertified ALPA and replaced it with USAPA. Unlike ALPA, which was committed to pursuing the Nicolau Award, USAPA was committed to maintaining the principles of seniority based on date-of-hire for which the East pilots had advocated. USAPA was successfully certified as the collective bargaining representative for both East and West pilots on April 18, 2008.

West pilots brought an action against USAPA in the Arizona district court, and a jury found that USAPA had violated its duty of fair representation by abandoning the Nicolau Award in favor of a date-of-hire list solely to benefit the East Pilots at the expense of the West pilots. After a bench trial on remedy, the district court ordered USAPA to, inter alia, make all reasonable efforts to negotiate and implement a CBA with U.S. Airways that implemented the Nicolau award. Addington v. U.S. Airline Pilots Ass'n, 2009 WL 2169164, 18 (D.Ariz. July 17, 2009). However, the Ninth Circuit Court of Appeals held, as a matter of first impression, that the action was not ripe and remanded the case. Addington v. U.S. Airline Pilots Ass'n, 606 F.3d 1174, 1179–80 (9th Cir.2010). The question of the seniority lists and the West pilots' duty of fair representation claim against USAPA is still pending.²

2) New York Action

On May 27, 2011, USAPA commenced an action in the Eastern District of New York seeking declaratory and injunctive relief against U.S. Airways. USAPA's Amended Complaint in that case alleges five causes of action against U.S. Airways, all arising from conduct that U.S. Airways has allegedly taken against USAPA in violation of the RLA. On August 17, 2011, this Court denied USAPA's motion to dismiss, stay, or transfer the instant matter based on the pending action in New York. (Doc. No. 51). The New York district court has since granted U.S. Airways's request for leave to file a motion to dismiss USAPA's Amended Complaint. US Airways's opening brief is due September 30, 2011.

3) Contract Negotiations

US Airways began negotiating with ALPA for a single CBA in November 2005. Those negotiations were not successful, in part because the East pilots halted negotiations by withdrawing their representatives on August 15, 2007 after issuance of the Nicolau Award. Soon after USAPA's certification, U.S. Airways and USAPA began meeting regarding a single CBA in June 2008. Since January 2010, these negotiations have been mediated by the National Mediation Board (NMB). The NMB has authority to determine the pace of negotiations, including where and how often negotiations occur. The NMB has the unfettered authority to release the parties from negotiations if and when it determines that agreement cannot be reached, and, only following such a release (and a 30–day “cooling off” period), would USAPA be permitted to engage in a work stoppage. In short, it has been almost six years since U.S. Airways and America West merged, and it seems the parties have never been further from reaching an agreement.

D. USAPA Links Safety to Contract Negotiations

USAPA has expressly tied the success of their “fight” for a new contract to actions by their member pilots that would slow down the airline but could be cloaked by the safety campaign. See, e.g., Pl's Ex. 3 at 5: Charlotte Domicile Update.³ The campaign became USAPA's primary focus in the fall of 2010, but USAPA laid the groundwork for a slowdown much earlier, through various communications.⁴ For example, USAPA's Charlotte Domicile issued an Update on April 12, 2009 that included information about the status of contract negotiations and stated that pilots must “demand an industry standard contract. That takes work from all of us; stay informed, and continue the campaign of remaining Good Union Pilots.” Pl's Ex. 2 at 3. The very next paragraph requested that pilots become better aware and informed...