Air Line Pilots Association v. United Air Lines, Inc.

Filing 11

Plaintiff's Request for a TEMPORARY RESTRAINING ORDER is DENIED for the reasons set forth in the attached memorandum and order.Ordered by Senior Judge Sterling Johnson, Jr on 9/29/2011. (Vincent, Dana)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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AIR LINE PILOTS ASSOC.,
Plaintiff,
11 CV 4661 (SJ)
-against-

MEMORANDUM &
ORDER

UNITED AIR LINES, INC.,
Defendants.
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APPEARANCES
COHEN, WEISS & SIMON LLP
330 West 42nd Street
25th Floor
New York, NY 10036
By:
Evan Randall Hudson-Plush
Michael Eckstein Abram
Thomas N. Ciantra
Attorneys for Plaintiff

O’MELVENY AND MYERS LLP
7 Times Square
New York, NY 10036
By:
Matthew F Damm
Robert A. Siegel
Attorneys for Defendant

JOHNSON, Senior District Judge:
Presently before the Court is the plaintiff Air Line Pilots Association’s
(“ALPA” or “the Union”) application for a temporary restraining order (“TRO”) to
enjoin the defendant United Airlines Inc. (“United” or “the Airline”) from

implementing its new revised flight operation procedures on Friday September 30,
2011 (the “Scheduled Date”), pursuant to United’s complete operational merger
with Continental Air Lines, Inc. (“Continental”), and known as the “Phase II
changes.”
ALPA alleges that the comprehensive nature of United’s Phase II changes
far outstrips the actual training United has provided to its pilots. Specifically,
ALPA charges that United has offered only computer-based training and maintains
that the pilots need actual classroom training and/or use of training devices to fully
absorb the regime change. ALPA further charges that the Airline’s plan of moving
forward on the Scheduled Date notwithstanding the Union’s expressed concerns
about the adequacy of the training amounts to a unilateral decision on the part of
United concerning the content of pilot training, in violation of the parties’ collective
bargaining agreement under the Railway Labor Act, 45 U.S.C.A. § 151 et seq. (the
“RLA”), the regulatory scheme that addresses, among other things, labormanagement issues in the railway and airline industries.
ALPA filed a contract grievance before an arbitrative panel known as the
United Pilots System Board of Adjustment (the “Board”) on September 22, 2011,
seeking expedited review and sought United’s consent to stay the implementation of
the Phase II changes until a decision from the Board. United refused, and, on
September 26, 2011, ALPA filed a motion for a preliminary injunction before this
Court seeking to enjoin the effective date of the Phase II changes pending a decision
from the Board. On September 27, 2011, the parties consented to convert the
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motion to one for a temporary restraining order (“TRO”). The Court held a hearing
on the application on September 28, 2011.

After considering the parties’

submissions and oral argument, and for the reasons set forth below, ALPA’s
application for a TRO is DENIED.
ANALYSIS
Injunctive relief “is an extraordinary and drastic remedy, one that should not
be granted unless the movant, by a clear showing, carries the burden of persuasion.”
Maruzek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis omitted). Under Rule
65 of the Federal Rules of Civil Procedure, a party seeking a TRO or a preliminary
injunction “must demonstrate (1) the likelihood of irreparable injury in the absence
of such an injunction, and (2) either (a) likelihood of success on the merits or (b)
sufficiently serious questions going to the merits to make them a fair ground for
litigation plus a balance of hardships tipping decidedly toward the party requesting
the preliminary relief.” Fed. Express Corp. v. Fed. Espresso, Inc., 201 F.3d 168,
173 (2d Cir. 2000) (citations omitted); see also Lynch v. City of New York, 589
F.3d 94, 98 (2d Cir. 2009) (“[w]here the moving party seeks to stay governmental
action taken in the public interest pursuant to a statutory or regulatory scheme, the
. . . court should not grant the injunction unless the moving party establishes, along
with irreparable injury, a likelihood that he will succeed on the merits of his claim”).
The Court further notes that the parties agree that the instant dispute is properly
characterized as “minor” pursuant to the RLA’s distinction between “major” and
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“minor” labor-management disputes. See generally Elgin, Joliet & E. Ry. v. Burley,
325 U.S. 711, 723 (1945). In the case of “minor” disputes, the general rule is that a
union is not entitled to an order preserving the status quo pending the resolution of
the dispute by an arbitrative panel, absent a finding that the union would suffer such
irreparable harm from denial of an injunction that a later arbitrative ruling in the
union’s favor would be meaningless. See e.g., Brotherhood of Locomotive Eng’rs
v. Missouri-K.-T. R.R. Co., 363 U.S. 528, 533-34 (1960); Local 553, TWU v.
Eastern Air Lines, Inc., 695 F.2d 668, 675 (2d Cir. 1982); Local Lodge 2144,
Brotherhood of Ry., Airline and S.S. Clerks v. Railway Express Agency, 409 F.2d
312, 316-17 (2d Cir. 1969).
Here, the Court finds that ALPA cannot bear its burden under the first prong
of the test for injunctive relief: ALPA cannot show it will suffer irreparable harm in
the absence of this Court enjoining United from proceeding with the Phase II
changes on the Scheduled Date.

ALPA’s failure to demonstrate such harm is

sufficient for the Court to deny ALPA’s application for a TRO, without the need to
address the second prong of the test or the balance of the parties’ arguments. See
Reuters Ltd. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (“a showing
of probable irreparable harm is the single most important prerequisite for the
issuance of a preliminary injunction.”).
ALPA’s case for irreparable harm in the absence of an injunction is twofold: (1) the purported erosion of the Board’s remedial authority; and (2) the alleged
risk of diminished flight safety. The Court finds that both lines of argument are too
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speculative—and thus insufficient in the Second Circuit where irreparable harm
justifying injunctive relief must be “actual and imminent.” Tucker Anthony Realty
Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989) (internal quotations omitted);
see also Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 759
(2d Cir. 1979).
First, concerning ALPA’s argument that absent an injunction the Board’s
jurisdiction would be irreparably harmed, the Court finds it specious. For this
assertion to survive scrutiny the following proposition also needs to be true: the
failure of a district court to preserve the status quo pending an arbitrator’s ruling on
a minor dispute, in and of itself, constitutes irreparable harm. There is, however, no
support for this broad proposition in the case-law. The three cases ALPA cites in
support of this branch of its irreparable harm argument—Brotherhood of
Locomotive Eng’rs, 363 U.S. 528, I.A.M. v. Eastern Air Lines, Inc., 847 F.2d 1014,
1019 (2d Cir. 1988) and Local Lodge 2144, 409 F.2d 312—all pivot upon a finding
of “actual and imminent” harm to the union employees in those cases, and not
merely on the harm to the jurisdiction of the arbitrative body per se.
In Brotherhood of Locomotive Eng’rs, the Supreme Court approved a
district court order requiring a rail carrier to maintain the status quo pending
arbitration of certain proposed changes that would have eliminated union jobs. Key
to that ruling was the lower court’s finding that the loss of union jobs was imminent,
and, as such, was an injury so irreparable that a later arbitrative ruling “in the
union’s favor would be but an empty victory.” Brotherhood of Locomotive Eng’rs,
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363 U.S. at 534. The Supreme Court went on to emphasized that “[f]rom the point
of view of these employees, the critical point in the dispute may be when the change
is made, for, by the time of the frequently long-delayed [arbitrator’s] decision, it
might well be impossible to make them whole in any realistic sense. . . .” Id.
Similarly, in I.A.M., the Second Circuit affirmed an order enjoining an airline from
decreasing the amount of time a shop steward could work on union-related duties,
which included assisting union employees with filing grievances, pending an
arbitrative ruling on the issue. Key to the decision was the district court’s finding
that the demand for the steward’s assistance in processing employee grievances had
significantly increased due to recent layoffs at the airline, and that without his
assistance employee grievances would have gone unheard—an actual and imminent
harm to those employees. 847 F.2d at 1019. Finally, in Local Lodge 2144, the
Second Circuit also affirmed an order restraining a railway carrier from moving its
operation pending an arbitrative ruling on whether union employees were entitled to
a job transfer.

Key to the ruling was the district court’s finding that union

employees would suffer irreparable injury in the immediate loss of jobs absent a
stay to permit the arbitrator time to decide the issue. 409 F.2d at 317–18. In short,
what ties all these cases together is the element missing here: namely a showing
that ALPA’s pilots would personally suffer “actual and imminent” injury from this
Court’s denial of an injunction, which would render any potential victory for ALPA
before the Board meaningless for its members.

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Second, concerning ALPA’s argument of irreparable injury in the form of an
increased risk to safety, the Court notes that ALPA concedes that the Federal
Aviation Administration (“FAA”), the federal agency charged with airline safety,
has already approved United’s computer-based training for the Phase II changes. At
oral argument, ALPA’s counsel nevertheless suggested that in seeking to enjoin the
implementation of the Phase II changes on the Scheduled Date, ALPA simply seeks
to hold United to a higher standard of safety than the FAA requires. That may very
well be and the Court does not, in theory, disagree with counsel’s statement that
when it comes to airline safety we shouldn’t “operate on hope.” However, there is
nothing in ALPA’s submissions to support a finding that the FAA has somehow
been negligent in carrying its regulatory mandate, or to suggest that the agency’s
oversight and/or conduct in the instant action places it outside the orbit of deference
it is entitled to under Chevron v. Natural Resources Defense Council, 467 U.S. 837
(1984). See e.g., Southeast Queens Concerned Neighbors Inc. v FAA, 229 F.3d
387, 394 (2d Cir. 2000) (recognized that the FAA is entitled to Chevron deference
in aviation matters); J. Andrew Lange. Inc. v. FAA, 208 F.3d 389, 391–92 (2d. Cir.
2000) (same). In light of the FAA’s regulatory authority and on-going oversight of
all phases of the United and Continental merger, the Court has no choice but to
deem the increase risk to safety ALPA alleges as being too “remote and
speculative” to lift the Union’s TRO application off the ground. The Court further
notes that ALPA’s inability to substitute the FAA’s determination concerning the

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adequacy of United’s computer-based training with its own assessment is not
irreparable harm.
Therefore, because ALPA has failed to demonstrate irreparable harm, its
request for a TRO as to the implementation of the Phase II changes on the
Scheduled Date must be DENIED. The Court has considered all of the additional
arguments advanced by both parties, and find them unnecessary to dispense with
this instant application, as ALPA’s failure to demonstrate irreparable harm is
dispositive.

CONCLUSION
For the foregoing reasons, ALPA’s motion for a TRO enjoining United from
implementing its revised flight operations policies and procedures on Friday
September 30, 2011, is DENIED.

SO ORDERED.
Dated: September 29, 2011
Brooklyn, NY

__________/s/____________________
STERLING JOHNSON, JR.
Senior United States District Judge

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