UAL v. Air Line Pilots Association, I ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4157
U NITED A IR L INES, INC.,
Plaintiff-Appellee,
v.
A IR L INE P ILOTS A SSOCIATION,
INTERNATIONAL, STEVEN M. T AMKIN ,
R OBERT J. D OMALESKI, JR., X AVIER F.
F ERNANDEZ, and A NTHONY R.
F REEMAN,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CV 4317—Joan Humphrey Lefkow, Judge.
A RGUED F EBRUARY 24, 2009—D ECIDED M ARCH 9, 2009 Œ
P UBLISHED M ARCH 23, 2009
Before R OVNER, W OOD and SYKES, Circuit Judges.
R OVNER, Circuit Judge. On July 30, 2008, United Air
Lines, Inc. (“United”) sued the Air Line Pilots Association,
Œ
This opinion was released initially in typescript.
2 No. 08-4157
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 defen-
dants from “calling, permitting, instigating, authorizing,
encouraging, participating in, approving or continuing
any interference with United’s airline operations, in-
cluding 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. § 151et 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,
No. 08-4157 3
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 deteri-
orated 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 negoti-
ations for a new contract in early April 2009. The parties
could agree to modify the contract sooner than the amend-
able date but neither side may unilaterally initiate negoti-
ations 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 replace-
ments 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
4 No. 08-4157
newly hired pilots or any pilots who crossed the picket
line during the strike. In spite of the Back-to-Work Agree-
ment, 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
No. 08-4157 5
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 cam-
paign 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 approxi-
mately 30,000 United customers.
United filed suit on July 30, 2008. Two days later, on
August 1, 2008, United and ALPA entered into a “Stand-
still 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 opera-
tions. 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
6 No. 08-4157
publish a statement to the pilots regarding their refusal to
accept junior/senior manning assignments. Those state-
ments were released in August 2008.
3.
ALPA had a very efficient system in place for com-
municating with the pilots. A Master Executive Council
(“MEC”), comprised of the top officers from local ALPA
councils, has the authority for and responsibility of negoti-
ating 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 imple-
No. 08-4157 7
ment 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 in-
structions 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 in-
dividual 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 fur-
loughed 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 admin-
istrators. The group deleted accounts of pilots who
signed up with United e-mail addresses, presumably to
prevent United from monitoring the group’s communica-
tions. The 2172 communicated through postings on the
group’s website and through mass e-mails. Freeman
8 No. 08-4157
discouraged members from posting communications that
were not “meant for paper or electronic communication.”
In June 2008, Freeman established a telephone tree for the
group, a form of communication that would leave no
readily traceable record of the content of the messages.
The district court noted that the deposition testimony
of the four individual defendants varied on whether
Freeman is or ever was a member of the IRC. The testi-
mony also varied on when the defendants were ap-
pointed to the IRC and by whom they were appointed.
These significant discrepancies in the testimony caught
the attention of the district court because the four individ-
ual defendants held a meeting on June 11, 2008, shortly
before a July sick-out staged by the junior pilots began,
and the subject of that meeting was much disputed. The
court found that the discrepancies were material and “cast
doubt on the candor” of the deposition testimony of these
defendants. Tamkin and Freeman testified that Freeman
was a member of the IRC; Domaleski and Fernandez
testified that Freeman was not a member of the IRC. The
court specifically noted that “[i]f Freeman was not a
member of the IRC, it would have been difficult for
defendants to provide an innocent explanation as to why
he met with the IRC members on June 11, 2008.”
The court found the discrepancies about the timing of
the defendants’ appointments to the IRC material be-
cause the IRC had been disbanded in 2000 and was reacti-
vated either during the current MEC chairman’s tenure
or during the tenure of his predecessor. The current MEC
chairman, Steven Wallach, was elected in October 2007
and formally took office in January 2008.
No. 08-4157 9
Former MEC chairman Mark Bathurst stepped down at
that time. Tamkin claimed to have been appointed by
Bathurst in April 2007, and testified that he appointed
Domaleski, Fernandez, and Freeman in April 2007.
Domaleski testified that he, Tamkin and Fernandez
were appointed in approximately November 2007 by the
newly elected MEC Chairman Wallach. Fernandez
claimed that he, Tamkin, and Domaleski were appointed
in May 2007. The court found that the inconsistencies in
these dates could reflect an effort by Tamkin, a friend of
Wallach, to place responsibility for reactivating the IRC
on Bathurst rather than on Wallach. United argued vigor-
ously in the district court that these discrepancies cast
serious doubt on the credibility of the four individual
defendants. Yet at the time of the hearing and in briefing,
ALPA and the individual defendants made no effort
to explain the discrepancies. The district court con-
cluded that Freeman was not a member of the IRC and
that those who attended the June 11, 2008 meeting were
“less than candid” about what occurred at that gathering.
4.
ALPA used the 2000 slowdown as an example to the
pilots during the current dispute. The pilots engaged in
a work slowdown during negotiations that year for a new
contract. When a new agreement was not reached before
the amendable date of the prior agreement, ALPA used
the IRC to implement a slowdown campaign. ALPA
directed the pilots, through the IRC, to decline voluntary
overtime assignments and to refuse to waive any provi-
10 No. 08-4157
sions of the contract. In the summer of 2000, United
experienced a dramatic increase in flight delays and
cancellations due to decisions by pilots to refuse to fly
aircraft with minor equipment issues and due to delays
in completing pre-flight checklists. During that time,
ALPA publications encouraged pilots to “fly the contract,”
a code phrase for strict adherence to the contract in
order to pressure United to make concessions in the new
CBA. ALPA also encouraged pilots to confront any col-
leagues who were not following ALPA’s directives.
During the summer of 2000, pilots who did not comply
with ALPA’s instructions had their names posted on
bulletin boards along with derogatory comments about
them, and they received harassing phone calls at home.
The day after United agreed to large wage increases in
the 2000 CBA, flight delays and cancellations returned
to near-normal levels.
ALPA used this history and the pilots’ knowledge
of this earlier dispute to encourage the 2007 practices. For
example, in April 2007, ALPA released a video message
telling the pilots that if they had any doubts about what
leverage is and what it could accomplish, they should
talk to pilots who remembered prior negotiations. In
September 2007, Wallach told the pilots that the 2000
CBA was obtained by pilots “forcing the company to
negotiate.” Wallach also said that the pilots had to make
it more expensive for the company not to negotiate than
to negotiate. As late as June 2008, a MEC member sent an
e-mail to other MEC members reminding them that
“[i]n 2000, we brought our CEO to his knees” because
United was delaying reaching a new contract, and that
he was prepared to increase his “level of risk.”
No. 08-4157 11
ALPA’s actions and communications to pilots in the
current job action were very similar to ALPA’s approach
during the 2000 work slowdown, and the harassment of
non-cooperating pilots also followed the same pattern.
Because 90% of the current pilots were employed by
United in 2000, the district court inferred that the
current pilots understood how the elements of a job
slowdown would be implemented, understood what
ALPA meant when it used coded phrases like “fly the
contract,” knew that they would likely be harassed by
their fellow pilots if they failed to comply with ALPA’s
directives, and believed that, based on their prior experi-
ence, a slowdown campaign would create the leverage
they wanted to give them an advantage at the bargaining
table.
5.
The job action that began in 2006 escalated in 2008. In
2008, United faced substantial increases in the price of
jet fuel, resulting in a $2.7 billion net loss in the first six
months of 2008. On June 4, 2008, United announced plans
to retire approximately 100 aircraft and to furlough 1450
pilots. The vast majority of the furloughed pilots were
expected to be the same pilots who had been furloughed
after September 11, 2001. In other words, most of the
furloughed pilots would be part of the 2172. A week
later, on June 11, 2008, the four individual defendants
met. Recall that three of the individual defendants
were indisputably members of the newly reformulated
IRC and the fourth was Freeman, a member of the 2172
12 No. 08-4157
who had launched the 2172 website. A month after that
meeting, the junior pilots who were expected to be fur-
loughed began a sick-out that resulted in several
hundred flight cancellations. United had expected that
this group of pilots would try to use some of their sick
leave before being furloughed, but the levels exceeded
expectations, and when combined with other actions,
such as refusals to take on junior/senior manning assign-
ments, caused substantial disruptions in service at United.
In 2006, the then-MEC Chairman Bathurst had an-
nounced the “Fix it Now” campaign, which became
more aggressive when the new MEC Chairman, Wallach,
was appointed. Both MEC chairmen tied the success of
ALPA’s efforts to reopen the 2003 CBA to actions by
pilots to create leverage. ALPA directed the pilots to
decline to fly aircraft that had deferrable maintenance
(the “Fix it Now” campaign), to “fly the contract” (that is,
to strictly adhere to the contract terms for the purpose
of causing a slowdown), and to “work-to-rule” (another
code for the pilots to strictly adhere to contract terms
for the purpose of creating delays and cancellations). In
January 2007, United agreed to meet ALPA to discuss
modifying certain work rules if the changes could
be effected on a cost-neutral basis. By the middle of
March 2007, the parties reached a tentative agreement on
some of these issues. Although the MEC approved the
tentative agreement, ALPA’s members did not, and the
deal fell through. Bathurst released a video in April 2007,
addressing the failed agreement, the “Fix it Now” cam-
paign and the group’s plans to pursue a more aggressive
posture in seeking to modify the 2003 CBA. United’s
No. 08-4157 13
management immediately noticed a slowdown following
the release of the video, and raised the issue with the
MEC chairmen in May 2007 and January 2008. Neither
MEC chairman would admit that a job action was under-
way and ALPA took no action in response to United’s
requests. United continued to offer to address specific
concerns, and also increased its pool of reserve pilots
so that the company would be less dependent on ju-
nior/senior manning during pilot absences.
On July 14, 2008, MEC Chairman Wallach directed ALPA
to terminate negotiations with United regarding certain
quality of life issues, and the sick-out began. On July 21,
2008, after United requested assistance in ending the sick-
out, Wallach sent a letter to the pilots regarding the
increase in sick leave. The district court found that, “[o]n
its face, the letter could not reasonably have been inter-
preted by United pilots as discouraging the sick-out.” UAL,
2008 WL 4936847, *34. The letter contained only two
sentences indicating that the MEC did not condone the
inappropriate use of sick leave, and that sick leave
should only be used for purposes approved in the con-
tract or as required by law. The court found that the
remainder of the letter assured pilots that they were
“absolutely entitled to use sick leave for appropriate
circumstances.” The next eight paragraphs included
“lengthy lists of the myriad situations in which a pilot
may or must take sick leave—including a wide variety of
medical reasons, as well as various non-medical situ-
ations, such as fatigue, stress, and emotionally upsetting
events.” Id. Not entirely unexpectedly, sick leave did not
substantially decrease following this letter. As we
14 No. 08-4157
noted above, United filed suit approximately one week
later, the parties entered into the Standstill Agreement,
and United sought injunctive relief.
6.
The district court concluded that ALPA had ordered a
number of job actions focused on exerting financial pres-
sure on United to force the company to reopen negotia-
tions on the 2003 CBA before the amendable date
required United to do so. In 2006, in addition to the Fix
it Now campaign, the MEC chairman reactivated the
MEC’s Strike Preparedness Committee (“SPC”), which
had been inactive for approximately five years. At the
time the SPC was reactivated, ALPA could not lawfully
strike for at least three more years under the CBA. ALPA
and the MEC chairmen issued statements and video-taped
messages to the pilots employing phrases like “fly the
contract” and “work-to-rule,” which the pilots under-
stood from prior job actions as directives to engage in a
slowdown. ALPA leadership also told the pilots it was not
in their interest to waive any contract provisions, and in
April 2007, the MEC chairman specifically discouraged
the pilots from taking junior/senior manning assign-
ments. Immediately after this statement, United noticed
a substantial drop in the number of pilots willing to
take these assignments. When United management ap-
proached ALPA to discuss this drop-off and also to
discuss the posting of “rat lists” naming pilots who took
junior/senior manning assignments, ALPA claimed it had
no involvement in any harassment and told the
No. 08-4157 15
company to take care of these issues through the normal
discipline process. ALPA did not address the complaint
about the drop-off in junior/senior manning. During the
remainder of 2007, United and the pilots reached agree-
ments on a number of smaller issues of concern to the
pilots.
Before Wallach began his formal term as chairman of
the MEC, he asked United’s management to start negotia-
tions before the April 2009 date contained in the 2003
CBA. United asked to meet with Wallach and told him
the company was contemplating a merger. United
asked Wallach if they could defer discussions about
reopening the contract until the merger discussions were
complete. Wallach agreed to do so if United would imple-
ment the failed tentative agreement from March 2007.
United, hoping to stop the slowdown, agreed to imple-
ment that agreement if Wallach would “take the customer
out of” the equation, that is, if ALPA would stop
engaging in actions that affected service to customers.
Wallach agreed to do so, and did stop certain picketing
at corporate and institutional customers, but did not halt
the slowdown campaign. Indeed, after Wallach became
the MEC chairman in January 2008, the district court
found that ALPA began a more aggressive campaign to
reopen the contract. During his campaign to be elected
MEC chairman, Wallach advocated attacking the labor
laws in Congress, and told the pilots that, although ALPA
could not tell pilots specifically what to do, it could tell
pilots to strictly abide by the flight operations manual and
the contract. Wallach also told the pilots he did not con-
sider the illegality of slowdowns under the RLA to be a
16 No. 08-4157
serious impediment, telling his audience, “You should
use lawyers to get you out of jail when you do what you
need to do.” On his first day in office, Wallach exhorted
the pilots to “take back our airline and reclaim what was
stolen from us” during the bankruptcy negotiations.
The MEC Updates issued under Wallach repeatedly
reminded the pilots that they were working under a
contract negotiated under the duress of the bankruptcy.
In February 2008, United met again with Wallach and
presented him with statistical evidence regarding opera-
tional delays. United asked for Wallach’s help in eliminat-
ing service disruptions. But operational problems did
not improve after this meeting. And once United
finished merger discussions in April 2008 (the merger
never happened), Wallach resumed the picketing he
had earlier halted. That same month, United and ALPA
agreed to jointly address fatigue issues for pilots. In
May 2008, the parties began to negotiate work rules related
to fatigue and “quality of work life” issues. Wallach
told United management that there would be con-
sequences if no agreement was reached on these issues
by the end of May. Although Wallach did not describe
the consequences, United understood this to be a threat
that ALPA would intensify its disruption of United’s
operations during the busy summer months. On June 4,
2008, United announced its intention to reduce the fleet
by 100 aircraft and to furlough 1450 pilots. As a result of
this announcement, the parties agreed to turn their atten-
tion to negotiating a furlough agreement. ALPA and
United reached a furlough agreement in late June, which
the MEC approved on July 11.
No. 08-4157 17
In the meantime, in late June, Wallach convened a closed-
door meeting of the MEC, the IRC, the SPC and the
Family Awareness Committee (a subcommittee of the
SPC). E-mail chatter preceding this meeting suggested that
some MEC members wanted to “ratchet up the heat” and
bring the United CEO “to his knees.” A few days after
the meeting, Wallach sent to United management a draft
letter that he intended to send to the pilots. He told
United to “stick it [presumably, the draft letter] in their
decision matrix” on the fatigue negotiations. The letter
attacked the competence and motives of United’s manage-
ment and suggested that United did not care about the
fatigue negotiations. Wallach delivered a revised version
of this letter to the pilots on July 15, 2008. In the
revised letter, Wallach told the pilots that ALPA was
terminating negotiations with United on the fatigue and
other “quality of work life” issues. Wallach painted
United’s management as “a focused, hostile and arrogant
management group” that did not care about the well-
being of the pilots or their families. The letter told the
pilots that they could not get out from under the 2003
CBA unless they started to work on it “now,” meaning
in July, a full eight and a half months before the 2003
CBA allowed for negotiations to begin. Wallach later
testified that he decided to terminate negotiations be-
cause they were “out of time” and “done talking.” The
district court questioned this explanation because there
was no apparent time constraint, and the only alternative
to continuing negotiations was to engage in a more wide-
spread (and unlawful) job action. In contrast to Wallach
and ALPA’s representations, the district court found that
18 No. 08-4157
United was making progress toward a fatigue agreement,
and that the company sent a revised proposal to ALPA
which United believed would resolve the only re-
maining open issue. ALPA never replied to this proposal.
Based on this and other evidence, the district court found
that the true reason for sending the July 15 letter to the
pilots was to foster indignation and animosity towards
United, and to encourage the pilots to engage in more
widespread job actions on the premise that United would
not agree to ALPA’s proposals. At Wallach’s direction,
ALPA also withdrew from an agreement the parties
reached in September 2007 regarding a web-based trip
trading program that the pilots wanted. Withdrawing
from that agreement created a burden on pilots who
wanted to trade trips and provided nothing to ALPA in
return. In other words, ALPA took a step against the
pilots’ interests, cancelling an agreement in favor of the
pilots, for no apparent reason. The district court found
this to be further evidence that Wallach and ALPA were
trying to create animosity among the pilots toward United.
7.
The district court found that ALPA’s current campaign
to force United to renegotiate the CBA mirrored the tactics
ALPA employed in the 2000 slowdown. The court found
that the current campaign included refusals to accept
voluntary flight assignments such as junior/senior man-
ning; refusals to waive contract provisions that pilots
normally would be willing to waive; creation of flight
delays with lengthy pre-flight cockpit checks; the unneces-
No. 08-4157 19
sary addition of extra fuel to flights; and the creation of
flight delays and cancellations by refusing to fly aircraft
with deferrable maintenance items. The court found that
ALPA and the IRC encouraged a sick-out among the
junior pilots which, combined with the refusal to accept
junior/senior manning assignments, caused several hun-
dred flight cancellations. Although ALPA claimed that
the letter to the pilots on July 21, 2008 was intended to
discourage the pilots from using sick leave inappropri-
ately, the court found that the vast majority of the letter
actually encouraged the use of sick leave, and that the
pilots receiving the letter would have understood it as an
invitation to ramp up sick leave. Indeed, after the pilots
received the letter, the use of sick leave increased. The
court found that there was also an extraordinary
increase in fatigue calls during the relevant time. Pilots
may call off work on any given day if they believe they are
too fatigued to fly. This is a safety-based, no-questions-
asked policy. During the time in question, there was a
multifaceted education program about fatigue-related
safety issues. The pilots received messages about fatigue
from United, the FAA, and the airline industry as well as
from ALPA and the IRC. The court found that it was
impossible to discern to what extent the increase in
fatigue calls was due to illegitimate efforts by ALPA and
the IRC. The court therefore rejected United’s argument
that the increase in fatigue calls was part of any unlawful
job action. The district court’s findings on all of these
issues are well-supported by the record and by the
court’s careful analysis, and we affirm those findings.
20 No. 08-4157
The court also found that ALPA exerted such extra-
ordinary control over the pilots that it could direct
whether the pilots were going to wear their hats on
certain days. MEC Updates included a graphic of a light
switch. When the switch was in the “on” position, pilots
were to wear their hats, and when the switch was in the
“off” position pilots were to keep their hats off. This
exercise in solidarity and control over the pilots was
enormously successful, and some pilots who wore their
hats during “off” periods were threatened with physical
violence by other pilots. The court found additional
evidence of ALPA’s ability to control the actions of the
pilots, including the immediate success of the Standstill
Agreement in dramatically reducing the use of sick leave.
Unlike the counterproductive July 21, 2008 letter, ALPA
was able to convey to the pilots that, this time, it really
meant it.
Moreover, pilots who did not comply with ALPA’s
directives on junior/senior manning found themselves the
subjects of harassment that included “rat lists”; derogatory
and threatening notes at work and at home; graphically
violent horror movies delivered to their homes; unautho-
rized loans taken out in their names; magazine subscrip-
tions taken out in their names; and harassing phone calls
to the pilots, their spouses and (most appallingly) their
children at home. Although ALPA denied that it sup-
ported the harassment, the court concluded from the
evidence that ALPA ratified and possibly authorized this
harassment, and that ALPA knew about the harassment
and failed to take any meaningful action to discourage
it. The harassment was the mechanism by which ALPA
No. 08-4157 21
was able to exert control over the pilots. These findings
are also well-supported by the record and we affirm them.
B.
We refer the reader again to the district court’s exhaus-
tive opinion for the court’s conclusions of law. UAL, 2008
WL 4936847, *35-*47. In a nutshell, the court found that
ALPA and the individual defendants violated Section 2,
First of the RLA by directing and encouraging the pilots
(1) to refuse junior/senior manning assignments; (2) to
refuse to waive contract provisions; (3) to “fly the contract”
and engage in conduct that would increase flight delays,
cancellations and costs to United; and (4) to engage in a
sick-out (especially among the junior pilots) beginning in
July 2008. The court also found that ALPA violated its
duty to exert every reasonable effort to stop the disrup-
tion of United’s operations and to stop the harassment
of pilots who did not cooperate with ALPA’s directives.
The court found that the defendants engaged in these
activities for the purpose of obtaining a new CBA. The
court concluded that this was not a “minor dispute” under
the RLA, and that the court had jurisdiction to enforce
Section 2, First of the RLA under these circumstances.
United’s claims were not barred by the six-month statute
of limitations contained in the RLA, the court deter-
mined, because the defendants were engaged in a multi-
faceted, ongoing slowdown campaign that constituted a
continuing violation of the RLA. The court also held that
United’s claims were not barred by laches.
The court held that the Norris-LaGuardia Act (“NLGA”),
29 U.S.C. § 101 et seq., does not prohibit the issuance of a
22 No. 08-4157
preliminary injunction in these circumstances. Although
the NLGA generally strips courts of jurisdiction to enter
injunctions against labor unions in labor disputes, the
court noted that, where a challenged action violates a
specific provision of the RLA, the RLA takes precedence
over the NLGA. Under Section 7(a) of the NLGA, the court
acknowledged it could not enter an injunction unless
the court found that unlawful acts have been threatened
and will be committed unless restrained or have been
committed and will be continued unless restrained. The
court rejected ALPA’s claim that United is no longer
suffering operational problems, and that the lawsuit and
ALPA’s subsequent actions have been adequate to
address the operational problems. The court found no
support in the record for those contentions. Nor was the
court persuaded that the Standstill Agreement or the
defendants’ voluntary cessation of certain activities
negated the need for an injunction. Based on the record
we described above, the court believed that the defend-
ants would continue to engage in unlawful conduct to
disrupt United’s operations unless an injunction was
entered. In balancing the four factors for a preliminary
injunction, the court found that United had demonstrated
a likelihood of success on the merits, that the company
had no adequate remedy at law, that the balance of hard-
ships weighed in United’s favor, and that the public
interest also weighed in favor of United. The court there-
fore granted the preliminary injunction, and the defen-
dants have appealed.
No. 08-4157 23
II.
The defendants raise four main issues in this expedited
appeal. First, they contend that the six-month statute of
limitations bars United’s claim that ALPA engaged in an
unlawful job action. Second, they argue that ALPA has
made reasonable efforts under Section 2, First of the
RLA in response to the alleged sick-out. Third, they
contend that United has not satisfied the requirements
of Section 6 of the NLGA Act because the company
failed to show that the defendants participated in or
ratified any unlawful acts. Finally, the defendants maintain
that the requirements of Section 7 of the NLGA were not
satisfied here, and that an injunction was not necessary
to prevent a violation of Section 2, First of the RLA. We
review the district court’s findings of fact for clear error,
its balancing of the factors for a preliminary injunction
under the abuse of discretion standard, and its legal
conclusions de novo. United Air Lines, Inc. v. Int’l Ass’n of
Machinist & Aerospace Workers, 243 F.3d 349, 360 (7th Cir.
2001) (“IAM”).
A.
Because the RLA has no statute of limitations for
actions under Section 2, First, we borrow the six-month
statute of limitations from section 10(b) of the National
Labor Relations Act (“NLRA”), 29 U.S.C. § 160(b). See
West v. Conrail, 481 U.S. 35, 37-38 (1987); Brotherhood of
Locomotive Eng’rs v. Atchison, Topeka & Sante Fe Ry. Co., 768
F.2d 914, 919 (7th Cir. 1985). The defendants contend that
United was aware of the job actions in dispute here as
24 No. 08-4157
much as eighteen months before the company filed this
suit on July 30, 2008. Specifically, the defendants posit
that United was aware of the problems with junior/senior
manning in 2006, and knew about ALPA’s other actions
(refusals to waive the contract, delays and cancellations
due to refusals to fly aircraft with deferrable maintenance,
the use of excessive amounts of fuel, for example) in
2006 and 2007. Because United did not file suit until more
than six months after those actions commenced, the
defendants maintain that the suit is untimely.
As the district court noted, the defendants’ actions
were not discrete acts that occurred outside the period of
limitations. Rather, the actions were a “multi-faceted and
ongoing slowdown campaign” that violated the RLA
outside of the limitations period and continued to occur
and continued to cause new harm during the limitations
period. The court found that the directives by ALPA to
the pilots, and the pilots’ actions to disrupt United’s
operations continued well into the six-month period prior
to the filing of the lawsuit. In fact, the court noted, the
continuing campaign against junior/senior manning
contributed to the large number of flight cancellations
at the height of the sick-out campaign in July 2008, weeks
before United filed suit. The court looked to cases inter-
preting Section 10(b) of the NLRA (from which we bor-
rowed the statute of limitations), and found that when a
violation begins outside the period of limitations but
continues into the limitations period, the claim is not time
barred. See Atlas Air, Inc. v. Air Line Pilots Ass’n, 232
F.3d 218, 226-27 (D.C. Cir. 2000) (under the RLA, as in
the NLRA, suits for unlawful actions which begin before
No. 08-4157 25
the limitations period but continue during the limita-
tions period and continue to cause injury during the
limitations period are not time barred). As the Ninth
Circuit explained:
A party may not rely solely on events occurring more
than six months before suit was filed to establish a
violation of the RLA. However, events occurring
outside the limitations period may be proven to shed
light on the true character of matters occurring within
the limitations period, if evidence exists that is rea-
sonably substantial in its own right that the violation
of the RLA upon which the plaintiff relies occurred
within the period. The evidence of events within the
limitations period, considered apart from earlier
evidence which may help to explain the events in
question, need not be conclusive; significant or con-
siderable evidence that a violation occurred within
the limitations period will suffice.
Association of Flight Attendants, AFL-CIO v. Horizon Air
Indus., Inc., 976 F.2d 541, 547-48 (9th Cir. 1992) (internal
citations and quotation marks omitted). See also Local
Lodge No. 1424 v. NLRB, 362 U.S. 411, 416 (1960) (interpret-
ing section 10(b) of the NLRA, and holding that, when
occurrences within the six-month limitations period in
and of themselves may constitute, as a substantive
matter, unfair labor practices, earlier events may be
utilized to shed light on the true character of matters
occurring within the limitations period).
Here the district court clearly found that, during the
limitations period, the defendants were engaged in unlaw-
26 No. 08-4157
ful job actions that caused harm to United’s operations. In
addition, the full effect of actions that began before the
limitations period was not felt until ALPA initiated
additional actions during the limitations period. For
example, the ongoing campaign to refuse junior/senior
manning assignments, which began in 2006, combined
with the junior pilot sick-out in July 2008 to force
hundreds of flight cancellations. Neither action alone
would have produced the same magnitude of harm as
those actions did together; it was the combination of
refusals to accept overtime assignments combined with a
large number of pilots calling in sick that caused the
cancellations. This fact alone distinguishes this case from
Limestone Dev. Corp. v. Village of Lemont, 520 F.3d 797(7th Cir. 2008), and Lewis v. City of Chicago, 528 F.3d 488(7th Cir. 2008), which the defendants characterize as
irreconcilable with Atlas Air. In each of those cases, the
wrongful acts and the injuries were completed outside
the limitations period, although “lingering effects” of the
wrongful actions were alleged. In the instant case, the
defendants engaged in unlawful actions before and
during the limitations period that caused injuries before
and during the limitations period. The earlier actions
shed light on the actions within the limitations period.
And the earlier actions that continued into the limitations
period combined with actions well within the period to
create new injuries. United’s action is not time barred.
B.
We can dispense quickly with the defendants’ second
argument; it has no merit. The defendants argue that
No. 08-4157 27
ALPA made reasonable efforts under Section 2, First to
halt the alleged sick-out. Citing our IAM opinion, they
contend that the court may not issue a preliminary injunc-
tion against a union that has promoted improper activity
if the union has taken sufficient steps to attempt to end
that activity. They cite ALPA’s July 21, 2008 letter to the
pilots as a reasonable attempt to end the sick-out. But the
district court found that this letter contained only a few
sentences addressed to ending the unlawful sick-out and
was mostly composed of coded encouragements to con-
tinue and even ramp up the sick-out. As the court noted,
the sick-out continued and even increased in intensity
following the letter. Yet after the lawsuit was filed and
the parties entered into the Standstill Agreement, ALPA
managed to find a way to communicate to the pilots
that they should back off of the sick-out. The July 21
letter was surprisingly ineffective even though ALPA
was able to control the pilots at such a level of minutiae
that it could direct when the pilots would wear their
hats. The court did not err when it concluded that ALPA
had not engaged in a good faith effort to end the sick-
out when it sent the July 21 letter. Rather, ALPA sent the
pilots a letter that the pilots would understand to be an
invitation to continue the sick-out. ALPA’s argument on
this point consists mostly of a request for this court to
reweigh the evidence and to consider again the district
court’s credibility findings. We accord substantial defer-
ence to the district court’s findings of fact, and the defen-
dants do not come close to demonstrating clear error
here. IAM, 243 F.3d at 360-61.
28 No. 08-4157
C.
The defendants acknowledge that a court may issue
an injunction to enforce the requirements of Section 2,
First of the RLA. But they contend that the requirements
of Section 6 of the NLGA must also be met before an
injunction may issue, and that those requirements were
not met here. Section 6 of the NLGA provides:
No officer or member of any association or organiza-
tion, and no association or organization participating
or interested in a labor dispute, shall be held responsi-
ble or liable in any court of the United States for the
unlawful acts of individual officers, members, or
agents, except upon clear proof of actual participation
in, or actual authorization of, such acts, or of ratifica-
tion of such acts after actual knowledge thereof.
29 U.S.C. § 106. The defendants assert that Section 6
requires United to provide clear proof that the defendants
participated in, authorized, or ratified the job actions
at issue here. United disputes whether the clear proof
standard applies in the context of injunctive relief, main-
taining that it applies only to claims for damages or
criminal liability. In IAM, we assumed without expressly
deciding that Section 6 applied to claims for injunctive
relief. IAM, 243 F.3d at 365-67. See also Air Line Pilots Ass’n
v. United Air Lines, Inc., 802 F.2d 886, 905 (7th Cir. 1986)
(hereafter “ALPA”) (in order to establish that Section 6
does not insulate a union against an injunction, the em-
ployer was required to show by “clear proof” the union’s
involvement with sick leave abuse). We need not revisit
the use of the clear proof standard in this case because
No. 08-4157 29
United still prevails under the higher clear proof
standard, which requires “clear and convincing evidence,
as opposed to a preponderance.” ALPA, 802 F.2d at 905.
The defendants argue that the district court clearly erred
in finding clear proof that (1) the pilots engaged in a
slowdown in 2008; (2) the pilots engaged in a sick-out in
June and July of 2008; (3) ALPA and the individual defen-
dants authorized or ratified messages posted on the
MEC Forum or the website for the 2172; (4) the indi-
vidual defendants who were members of the IRC insti-
gated a sick-out; and (5) ALPA’s July 15 letter from
Wallach was intended to foster indignation and animosity
among the pilots toward United, and thus encourage
them to engage in more widespread job actions. The
defendants counter these findings by explaining that
(1) any increase in delays and cancellations can be ex-
plained by “the most challenging operating environment
in aviation history” that occurred in 2008; (2) any increase
in sick leave usage was not the result of a concerted sick-
out but rather was the expected result of United’s an-
nouncement that it intended to retire 100 aircraft and
furlough 1450 pilots; (3) there was no evidence that ALPA
or the individual defendants authorized or ratified the
messages posted on the MEC Forum or the 2172 website;
(4) the individual defendants actually tried to prevent
the sick-out in the June 11 meeting; and (5) there was
nothing unlawful about the July 15 letter and no evidence
that any pilots called in sick as a result of that letter.
We note again that we owe great deference to the
district court’s findings of fact and will reverse them only
30 No. 08-4157
for clear error. IAM, 243 F.3d at 360-61. In ALPA, we
found that statistical evidence alone regarding a marked
increase in sick leave was not enough to constitute
clear proof that the union was implicated in a sick-out
scheme. 802 F.2d at 905-06. See also IAM, 243 F.3d at 366(reiterating that statistical evidence alone is not enough
to provide clear proof of a union’s involvement in a
work action). An employer may meet the clear proof
standard with statistical evidence in combination with
evidence of a union’s coded communications to its mem-
bers to engage in an unlawful job action. Phrases such
as “work safe,” “work by the book,” “adhere to strict
contractual requirements,” “not to neglect even the most
minor write ups,” “check every item on the checklists,”
were all recognized as coded signals to engage in a slow-
down. 243 F.3d at 366-67. In ALPA, we suggested that
statistical evidence plus a notice posted on a union’s
bulletin board could suffice as clear proof. 802 F.2d at 367.
In IAM, we found that the union’s directives to workers
to “work safe,” to clean their boxes and tools daily, and
to shut down and fix anything that is not safe, combined
with statistical evidence, were clear proof of a union’s
authorization of a slowdown. 243 F.3d at 367.
With those standards in mind, we turn to the evidence
on which the district court relied in finding that United
had clearly proved the defendants’ involvement in
various job actions. First, the court relied on statistical
evidence regarding increases in the use of sick leave, in
refusals to accept junior/senior manning assignments, and
in flight delays and cancellations. Second, and more
importantly, the court also relied on the many messages
No. 08-4157 31
that the defendants conveyed to the pilots during the
relevant time frame. Among those messages were
repeated directives to “fly the contract,” to not waive
any part of the contract, to decline junior/senior
manning assignments, to “fix it now,” and to “work-to-
rule.” Some of these directives appeared on websites and
in mass e-mails, the twenty-first-century equivalents of
a bulletin board. Some communications occurred through
channels that were decidedly less traceable such as
phone trees. The court based its conclusions that the
pilots understood these to be coded phrases to engage in
job actions on prior disputes between the company and
the pilots where similar phrases were employed, finding
those prior disputes relevant because so many of the
pilots involved in the earlier actions were still on the job.
Other evidence before the court included the July 15,
2008 letter that the court determined was designed to
increase indignation and animosity among the pilots
toward the company. We will not repeat the district court’s
complete findings. We affirm those findings because,
contrary to the defendants’ contentions, the court relied
on a wealth of evidence in rejecting the defendants’
alternative explanations for the increases in sick leave
usage, and flight delays and cancellations.
We addressed above the appropriateness of the district
court’s findings regarding the July 21, 2008 letter related
to sick leave usage. The defendants also complain that the
court erred by drawing a negative inference from the
failure of the individual defendants to testify at the
hearing regarding the June 11, 2008 meeting regarding the
sick-out. The defendants, however, have mischaracterized
32 No. 08-4157
the court’s analysis. The court found that there were
material inconsistencies in the deposition testimony of
the four individual defendants regarding the composi-
tion of the IRC, the timing of their appointments to the
IRC, and the content of the June 11 meeting. From those
inconsistencies alone the court concluded that the defen-
dants were not candid in their claims about the June 11
meeting or the composition of the IRC. The court was
merely noting that the defendants had an opportunity to
clarify the inconsistencies and did not. In the absence of
any explanation, the court adhered to its view that the
individual defendants lacked credibility in their deposi-
tion testimony. There was nothing inappropriate in
drawing that inference and adhering to it in the absence
of any evidence to the contrary.
As for the July 15 letter, the court was correct to con-
sider its content and tone in relation to all of the other
evidence about the job actions. The letter used inflam-
matory language and informed the pilots that it was
necessary to begin working on a new CBA “now,” more
than eight months before the 2003 CBA allowed for
negotiations to begin. In the context of everything else
that was going on at the time, the July 15 letter was one
more piece of evidence that the increased sick leave,
and flight delays and cancellations were not coincidental
and could not be explained by the challenging operating
conditions faced by the company. The district court did
not err in finding that United clearly proved that the
defendants authorized and/or ratified the unlawful job
actions.
No. 08-4157 33
D.
Finally, the defendants argue that the district court erred
in finding the requirements of Section 7 of the NLGA
satisfied, contending that the injunction was not neces-
sary to prevent a violation of Section 2, First of the RLA.
The RLA, the starting point of our analysis, was enacted,
in part, to avoid interruptions to commerce or to the
operation of carriers engaged in commerce. See 45 U.S.C.
§ 151a. The RLA seeks to encourage collective bargaining
and to avoid wasteful strikes and interruptions of inter-
state commerce. IAM, 243 F.3d at 361; ALPA, 802 F.2d at
895. In order to accomplish this goal, Section 2, First of the
RLA imposes on both management and labor a duty to
“exert every reasonable effort to make and maintain
agreements concerning rates of pay, rules, and working
conditions, and to settle all disputes . . . in order to avoid
any interruption to commerce or to the operation of any
carrier growing out of any dispute between the carrier
and the employees thereof.” 45 U.S.C. § 152. The
Supreme Court has characterized this duty as the heart of
the RLA. See Brotherhood of R.R. Trainmen v. Jacksonville
Terminal Co., 394 U.S. 369, 377-78 (1969). During all labor
negotiations, the parties are obliged under the RLA to
maintain the status quo with respect to pay, work rules
and working conditions. IAM, 243 F.3d at 361-62. If
either management or labor engages in conduct that
violates the RLA, a court may enjoin the unlawful activ-
ity. IAM, 243 F.3d at 362.
But when a carrier is seeking to enjoin the activities of a
union, “a court must look not only to the RLA but also to
34 No. 08-4157
the NLGA to determine whether the court has jurisdic-
tion.” IAM, 243 F.3d at 362 (quoting Delta Air Lines, Inc. v.
Air Line Pilots Ass’n, 238 F.3d 1300, 1305 (11th Cir. 2001)).
As a general rule, the NLGA strips courts of jurisdiction
to enter injunctions against labor unions in cases growing
out of labor disputes. Section 7 of the NLGA provides,
in relevant part:
No court of the United States shall have jurisdiction
to issue a temporary or permanent injunction in any
case involving or growing out of a labor dispute, as
defined in this chapter, except after hearing the testi-
mony of witnesses in open court (with opportunity
for cross-examination) in support of the allegations of
a complaint made under oath, and testimony in op-
position thereto, if offered, and except after findings
of fact by the court, to the effect--
(a) That unlawful acts have been threatened and will
be committed unless restrained or have been commit-
ted and will be continued unless restrained, but no
injunction or temporary restraining order shall be
issued on account of any threat or unlawful act ex-
cepting against the person or persons, association, or
organization making the threat or committing the
unlawful act or actually authorizing or ratifying the
same after actual knowledge thereof;
29 U.S.C. § 107. Reading the RLA and the NLGA together,
the Supreme Court has held that when a challenged action
violates a specific provision of the RLA (such as the
status quo provisions), the court may enter an injunction
against a union using the standards set forth in the NLGA.
No. 08-4157 35
Pittsburgh & Lake Erie R.R. Co. v. Ry. Labor Executives’ Ass’n,
491 U.S. 490, 513 (1989); IAM, 243 F.3d at 362.
As we stated in IAM, “the Court has carved out an
exception from the NLGA’s general prohibition on injunc-
tive relief against union activity for violations of specific
provisions of the RLA.” 243 F.3d at 362. However, “this
exception is a limited one which applies only if an in-
junction is the only, practical, effective means of enforcing
the duty to exert every reasonable effort to make and
maintain agreements, or if that remedy alone can effec-
tively guard the plaintiff’s right.” IAM, 243 F.3d at 362-63(internal citations and quotation marks omitted). See also
Burlington Northern & Santa Fe Ry. Co. v. Brotherhood of
Locomotive Eng’rs, 367 F.3d 675, 679 (7th Cir. 2004) (where
there are other effective means available to ensure com-
pliance with the provisions of the RLA, an injunction
should not issue).
The defendants contend that the district court erred in
finding that the NLGA did not bar the issuance of an
injunction here. According to the defendants, United did
not meet its burden of demonstrating that any unlawful
activity would continue in the absence of an injunction.
The defendants assert that the district court committed an
error of law when it reversed the burden and required
that the defendants demonstrate that their unlawful
conduct had ceased. The defendants maintain that United
presented no evidence that the company continued to
suffer operational difficulties after the parties entered
into the Standstill Agreement. With the Standstill Agree-
ment in place, the defendants argue, there was no need to
36 No. 08-4157
enter the injunction. At oral argument, we asked the
defendants whether it was ever appropriate to enter a
preliminary injunction once a union had signed a “stand-
still agreement.” The defendants said an injunction
would be appropriate at that point only if there was also
evidence that the union’s subsequent actions and state-
ments were not consistent with the standstill agreement.
In this case, the district court in fact found that the
defendants’ subsequent actions and statements were not
consistent with the Standstill Agreement. Although some
of the job actions declined following the Standstill Agree-
ment, some then increased again after the initial decline.
For example, although sick leave usage initially declined
following the signing of the Standstill Agreement, it
then increased, albeit not to prior levels. And the post-
Standstill sick leave usage, although lessened from the
peak of the sick-out, continued to greatly exceed expected
levels of usage. The pilots also continued to refuse ju-
nior/senior manning assignments at greatly reduced rates
following the Standstill Agreement. The district court
was also aware that the promises made in the Standstill
Agreement were not made in a vacuum. The court consid-
ered the history of ALPA’s actions in this dispute and in
prior labor disputes. During those disputes, as well as the
current one, ALPA exerted great control over the pilots.
The pilots were aware that they would face harassment
and ostracism if they failed to follow ALPA’s directives.
During the current dispute, when United asked for
ALPA’s assistance in curbing the sick-out, ALPA sent out
a letter that, with a wink and a nod, actually resulted in an
increase in sick leave. ALPA continues to insist that the
No. 08-4157 37
July 21 letter was a good faith effort to end the sick-out.
The district court was entitled to conclude that only an
injunction would put a halt to the unlawful actions in
light of that continued insistence. Only when faced with
the litigation did ALPA accede to the Standstill Agree-
ment and issue a directive that had any real effect on
lowering sick leave usage. Even then, it did not eliminate
the problem. The court considered the defendants’ action
in entering into the Standstill Agreement as one factor
among many in determining that “an injunction is neces-
sary to enforce the defendants’ status quo obligations
under the RLA.” UAL, 2008 WL 4936847, *43.
We agree that a voluntary cessation of wrongful conduct
is a factor for the court to consider in deciding whether
an injunction is necessary. See Milwaukee Police Ass’n v.
Jones, 192 F.3d 742, 747 (7th Cir. 1999) (voluntary cessation
of activity does not render a case moot unless the defen-
dant can demonstrate that there is no reasonable expecta-
tion that the wrong will be repeated).1 The defendants have
attempted to characterize the Standstill Agreement as a
“voluntary” cessation of any job actions. The district court,
however, was within its discretion to find that an agree-
ment signed only after a lawsuit has been filed is not
voluntary, and that even a voluntary cessation is not
1
We understand that the defendants are not arguing that the
case is moot because of the Standstill Agreement. Rather, the
defendants claim that because of the Standstill Agreement, no
injunction is necessary under the NLGA and the preliminary
injunction should be dissolved. We nonetheless find the
mootness cases relevant to the analysis of voluntary cessations.
38 No. 08-4157
determinative. The court may consider how easily former
practices might be resumed at any time in determining
the appropriateness of injunctive relief. Id. ALPA and the
defendants had employed means of communication,
such as the telephone trees, that left no trail of evidence.
Without the threat of contempt, the district court could
reason that ALPA would continue to say one thing in
public and to the court, and another thing to its members.
The SPC—the Strike Preparedness Committee—had been
reactivated. ALPA had demonstrated an ability to convey
messages secretly to pilots who feared retaliation based on
prior experience. The individual defendants had been “less
than candid” in their testimony. In combination with
the other facts we describe above, the court was within
its discretion in finding that an injunction was the only
means of assuring compliance with the status quo provi-
sions of the RLA. See Burlington Northern, 367 F.3d at 678(we review an order to grant or deny a preliminary injunc-
tion under a highly deferential abuse of discretion stan-
dard).
III.
For the reasons stated above, we affirm the judgment
of the district court.
A FFIRMED.
3-23-09