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LOCAL 553, TRANSP. WORKERS UNION v. EASTERN AIR LI

August 16, 1982

LOCAL 553, TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, Plaintiff,
v.
EASTERN AIR LINES, INC., Defendant



The opinion of the court was delivered by: SIFTON

MEMORANDUM DECISION AND ORDER

 SIFTON, District Judge.

 Plaintiff, Local 553, Transport Workers Union of America, AFL-CIO (the "Union" or "Local 553"), instituted this action on May 28, 1982, alleging that defendant, Eastern Air Lines, Inc. ("Eastern" or the "Company"), has violated certain provisions of the Railway Labor Act, 45 U.S.C. § 151 et seq. (the "RLA"). This dispute arises from Eastern's recent agreement with Braniff Airways, Inc. ("Braniff") to take over Braniff's routes to points in Argentina, Bolivia, Chile, Colombia, Ecuador, Panama, Paraguay, and Peru (the "Latin American Routes"), and to hire approximately 310 flight attendants employed by Braniff who reside in and are nationals of five of the eight countries serviced by these routes -- namely, Argentina, Chile, Colombia, Panama, and Peru -- for a four-year period.

 In its amended complaint the Union asserts that Eastern's employment of the Braniff flight attendants is a breach of section 2(A) (1) of the collective bargaining agreement entered into by Eastern and the Union on February 29, 1980 (the "1980 Collective Bargaining Agreement"). Section 2(A) (1) of that agreement states:

 
"It is agreed that any and all flying, performed in or for the service of Eastern Air Lines, Inc., will be performed by Flight Attendants whose names appear on the then current Eastern Airlines system seniority list."

 The Union further alleges that because the Braniff flight attendants now flying in the service of Eastern are not on the Eastern Air Lines system seniority list, the Company has unilaterally changed the rates of pay, rules, and working conditions of its flight attendants in violation of the status quo provisions of § 6 of the RLA, 45 U.S.C. § 156. Accordingly, says the Union, this is a "major" dispute under the RLA; and the Union is entitled to an injunction to preserve the status quo.

 On May 28, 1982, the Union applied to this Court for a preliminary injunction to restore the status quo pending the trial of this action. A hearing on the Union's application for preliminary relief was conducted in May and June 1982. On the basis of the evidence adduced at that hearing, I have determined that the Union is entitled to preliminary relief. The findings of fact and conclusions of law upon which this determination is based are set forth below, as required by Rule 65(a) of the Federal Rules of Civil Procedure.

 STANDARDS FOR ISSUANCE OF A PRELIMINARY INJUNCTION

 In general, in order to obtain preliminary injunctive relief in this Circuit, a party must make a showing of (a) irreparable harm 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 injunctive relief. See Jack Kahn Music v. Baldwin Piano & Organ, 604 F.2d 755, 758-59 (2d Cir. 1979).

 BACKGROUND

 On February 28, 1980, the Union and Eastern entered into the 1980 Collective Bargaining Agreement containing section 2(A) (1) quoted above. As the 1980 Collective Bargaining Agreement had an expiration date of March 31, 1982, in January of 1982 each party served upon the other a notice pursuant to § 6 of the RLA, 45 U.S.C. § 156, to change certain rates of pay, rules, and working conditions set forth in the 1980 Collective Bargaining Agreement.

 On February 10, 1982, the parties exchanged proposed amendments to the 1980 Collective Bargaining Agreement -- each party reserving the right to add, delete or amend the proposals during the course of the negotiations. Neither party proposed any changes to section 2(A) (1).

 On April 26, 1982, while the parties were still negotiating a new collective bargaining agreement pursuant to § 6 of the RLA, Eastern and Braniff entered into an Interim Operating and Joint Service Agreement (the "Eastern-Braniff Agreement") pursuant to which Eastern proposed to take over Braniff's Latin American Routes. The Eastern-Braniff Agreement provides that Eastern will assume all of Braniff's liabilities, obligations, rights, and responsibilities as employer of all ground and office personnel and flight attendants employed by Braniff in any of the eight Latin American countries referred to above for a period of four years.

 On April 27, 1982, the Civil Aeronautics Board ("CAB") approved the Eastern-Braniff Agreement on an interim basis for a 15-month period. The CAB did not condition its approval by requiring any labor protective provisions, but stated that it might decide to do so after further hearings on the matter. A week prior to approving the Eastern-Braniff Agreement, the CAB had refused to approve an agreement between Pan American World Airways, Inc. and Braniff (the "Pan Am-Braniff Agreement"), under which Pan Am would have taken over Braniff's Latin American Routes, because of possible antitrust problems. The Pan Am-Braniff Agreement, entered into on March 17, 1982, provided that Pan Am would not hire the Braniff flight attendants based in Latin America.

 The Union first learned that Eastern might take over Braniff's Latin American Routes and employ the Braniff flight attendants on April 22, 1982. Union representatives told Eastern officials that they were opposed to Eastern's plan to hire the Braniff flight attendants. The Union and the Company met several times between April 22 and May 27, at which time the parties attempted to negotiate a settlement of the dispute that had arisen due to Eastern's employment of the Braniff flight attendants. The meetings resulted in no agreement between the parties.

 Under the Eastern-Braniff Agreement, Eastern was not to commence flying the Latin American Routes until June 1, 1982. However, Braniff filed for bankruptcy under Chapter XI of the Bankruptcy Law on May 13, 1982. This resulted in Eastern's commencing actual flight operations over the former Braniff routes on May 14, 1982.

 On May 19, 1982, the Union submitted a grievance to the Company, pursuant to §§ 27 and 28 of the 1980 Collective Bargaining Agreement, asserting that Eastern had violated § 2(A) (1) of the agreement by using flight attendants whose names did not appear on the seniority list. The Union demanded that the Company cease using flight attendants not on the seniority list and remunerate flight attendants on the seniority list who would have flown those flights. The grievance was denied by the Company on June 18, 1982. Apparently, that the grievance has now been submitted to a system adjustment board provided for under the 1980 Collective Bargaining Agreement in an effort to secure a resolution.

 It appears that Eastern is now flying the Latin American Routes over the Union's continuing objections in accordance with an arrangement which involves Braniff flight attendants flying all the flights between points in Latin America, Union members flying all the new routes between points in the United States, and with Braniff flight attendants and Union members each flying about one-half of the flying between points in the United States and South America.

 "MAJOR" OR "MINOR" DISPUTE UNDER THE RLA

 Although defendant has raised a myriad of issues in opposition to the request for preliminary relief, the initial question to be resolved is whether there is a likelihood that the Union will succeed at a trial of the merits in establishing that this is a "major" dispute, as that term is used in the case law interpreting the RLA.

 The general purpose of the RLA, as passed by Congress in 1926, and as amended in 1934, is to "avoid interruptions to transportation resulting from disputes over rates of pay, rules, or working conditions, to provide peaceful and orderly procedures for the settlement of disputes, and to foster the organization of employees." Rutland Railway Corp. v. Brotherhood of Locomotive Engineers, 307 F.2d 21, 31 (2d Cir. 1962), cert. denied, 372 U.S. 954, 9 L. Ed. 2d 978, 83 S. Ct. 949 (1963). Congress hoped "to encourage the use of the nonjudicial processes of negotiation, mediation, and arbitration for the adjustment of labor disputes." Brotherhood of R. Trainmen v. Toledo, Peoria & Western Railroad, 321 U.S. 50, 58, 88 L. Ed. 534, 64 S. Ct. 413 (1944). In 1936, Congress amended the RLA to cover the small, but growing, air transportation industry. 49 Stat. 1189, 45 U.S.C. §§ 181-188. See Int'l Ass'n of Machinists v. Central Airlines, 372 U.S. 682, 685, 10 L. Ed. 2d 67, 83 S. Ct. 956 (1963).

 The RLA contemplates two types of labor disputes and provides different procedures for handling each. The courts have denominated these disputes "major" and "minor," although these terms -- first used in Elgin, Joilet & Eastern Railway Co. v. Burley, 325 U.S. 711, 723, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945) -- are not used by the RLA and in fact bear, at times, little relationship to the real dimensions of the matters at issue. See Rutland, supra at 42-43 (Marshall, J. dissenting). In essence, a "minor" dispute is one which involves "a dispute between a carrier or carriers and its or their employees, arising out of grievances or out of interpretation or application of agreements concerning rates of pay, rules, or working conditions." Section 2, Sixth, of the RLA, 45 U.S.C. § 152, Sixth. Major disputes, on the other hand, involve attempts by either a carrier or a union unilaterally to "change the rates of pay, rules, or working conditions of its employees, as a class, as embodied in" a collective bargaining agreement. Section 2, Seventh, of the RLA. 45 U.S.C. § 152, Seventh. In Elgin, supra, the Supreme Court set out the general standards for determining whether a dispute is "major" or "minor" as follows:

 
"The first [major disputes] relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.
 
"The second class [minor disputes], however, contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective agreement, e.g., claims on account of personal injuries. In either case the claim is to rights accrued, not merely to have new ones created for the future." Id. at 723.

 Whether the dispute is "major" or "minor" has significant consequences, since, as discussed below, the RLA provides distinctly different dispute resolution procedures for each. See Elgin, supra at 722-28. However, in both "major" and "minor" disputes, each party has an obligation to make every reasonable effort to settle the parties' differences in conference. Section 2, First and Second, of the RLA, 45 U.S.C. § 152, First and Second.

 If the parties are unable to resolve the dispute, the next steps to be taken under the RLA depend upon whether the dispute is "major" or "minor." If the dispute is major, § 2, Seventh, of the RLA, 45 U.S.C. § 152, Seventh, provides that "no carrier, its officers, or agents shall change the rates of pay, rules, or working conditions of its employees," as embodied in the collective bargaining agreement, except "in the manner prescribed in such agreements or in section 156 of this title." Section 156 of title 45, § 6 of the RLA, provides as follows:

 
"Carriers and representatives of the employees shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions, and the time and place for the beginning of conference between the representatives of the parties interested in such intended changes shall be agreed upon within ten days after the receipt of said notice, and said time shall be within the thirty days provided in the notice. In every case where such notice of intended change has been given, or conferences are being held with reference thereto, or the services of the Mediation Board have been requested by either party, or said Board has proffered its services, rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155 of this title, by the Mediation Board, unless a period of ten days has elapsed after termination of conferences without request for or proffer of the services of the Mediation Board."

 The dispute resolution procedures provided by the RLA for minor disputes are quite different. Under § 2, Sixth, of the Act, 45 U.S.C. § 152, Sixth,

 
"in case of a dispute between a carrier or carriers and its or their employees, arising out of grievances or out of interpretation or application of agreement concerning rates of pay, rules, or working conditions, it shall be the duty of the designated representative or representatives of such carrier or carriers and of such employees, within ten days after the receipt of notice of a desire on the part of either party to confer in respect to such dispute, to specify a time and place at which such conference shall be held: Provided, (1) That the place so specified shall be situated upon the line of the carrier involved or as otherwise mutually agreed upon; and (2) that the time so specified shall allow the designated conferees reasonable opportunity to reach such place of conference; but shall not exceed twenty days from the date of receipt of such notice: And provided further, That nothing in this chapter shall be construed to supersede the provisions of any agreement (as to conferences) then in effect between the parties."

 If the parties are unable to reach an agreement to resolve the dispute, either party may submit the dispute to compulsory arbitration before an adjustment board. Section 204 of the RLA, 45 U.S.C. § 184. See Central Airlines, supra at 685-89; Reed v. National Air Lines Inc., 524 F.2d 456, 459 (5th Cir. 1975). Where the dispute is minor, the matter is one within the exclusive jurisdiction of the adjustment board to resolve. See DeLaRosa Sanchez v. Eastern Airlines, 574 F.2d 29, 31-32 (1st Cir. 1978); Reed v. National Air Lines, supra at 460; Int'l Ass'n of Machinists and Aerospace Workers v. Compagnie Nationale Air France, 433 F. Supp. 1087, 1090 (S.D.N.Y.), aff'd, 573 F.2d 1291 (2d Cir. 1977), cert. denied, 439 U.S. 818, 58 L. Ed. 2d 108, 99 S. Ct. 79 (1978).

 The determination of whether a particular RLA dispute is minor or major is not an easy matter. "As in other areas of jurisprudence, the difference, on the one hand, between the interpretation and the application of an existing agreement, and, on the other hand, a change in an original intended basis of agreement is often a question of degree," Rutland, supra at 33; and in resolving this question, "[one] must not place undue emphasis on the contentions of the parties, [as m]anagement will assert that its position, whether right or wrong, is only an interpretation or application of the existing contract. Unions, on the other hand, in their assertions about the dispute at issue, will obviously talk in terms of change." Id.

 In order to determine whether a dispute is minor or major, the courts have adopted a number of tests. In Rutland, the Second Circuit held a dispute to be minor because the collective bargaining agreement could be "reasonably interpreted" to allow the company's actions. Id. at 36. Other courts have held disputes to be minor where a party's assertion that the contract authorized the challenged action was "arguable," see REA Express, Inc. v. Brotherhood of Railway Clerks, 459 F.2d 226, 231 (5th Cir.), cert. denied, 409 U.S. 892, 34 L. Ed. 2d 149, 93 S. Ct. 115 (1972), "not obviously insubstantial," see United Transportation Union v. Penn Central Transportation Co., 505 F.2d 542, 544 (3d Cir. 1974), or "not frivolous," see United Transportation Union v. Baker, 499 F.2d 727, 730 (7th Cir.), cert. denied, 419 U.S. 839, 95 S. Ct. 69, 42 L. Ed. 2d 66 (1974).

 In determining whether the 1980 Collective Bargaining Agreement can be "reasonably interpreted" to justify Eastern's actions, it is appropriate to consider the language of the agreement, the negotiating history of the agreement, prior conduct of the parties, and general practice in the airline industry. Rutland, supra at 36; Air Line Pilots Ass'n Int'l v. Northwest Airlines, 444 F. Supp. 838, 841 (D. Minn. 1977), aff'd, 570 F.2d 257 (8th Cir. 1978).

 For the reasons stated below, I conclude that, under any of the tests set forth above, this is a major dispute. Eastern's use of flight attendants not on the seniority list to fly the Latin American Routes acquired from Braniff is not "arguably" justified by the contract; Eastern's contract justifications for its actions are "insubstantial" and "frivolous"; and no "reasonable interpretation" of the contract justifies its position.

 As already noted, section 2(A) (1) of the 1980 Collective Bargaining Agreement provides as follows:

 
"It is agreed that any and all flying, performed in or for the service of Eastern Air Lines, Inc., will be performed by Flight Attendants whose names appear on the then current Eastern Airlines system seniority list."

 The language of the clause clearly prohibits the use of any flight attendant who is not on the current seniority list on an Eastern flight. The words "any and all" serve to emphasize the broad coverage of the clause. Eastern has not denied that its new Latin American Routes are being flown in and for the service of Eastern. Nor does it dispute that it is now using flight attendants on these Latin American Routes who are not on the seniority list. In the face of this clear and unambiguous language, it might seem beyond debate that Eastern is now violating § 2(A) (1) by using persons not on the seniority list to fly as flight attendants in the service of Eastern on the newly acquired routes. Eastern has, however, made a number of arguments in an attempt to show that its use of the Braniff flight attendants is not a violation of that section. Having considered the clear meaning of the language of § 2(A) (1), the negotiating history leading to the inclusion of that section in the 1980 Collective Bargaining Agreement, the past practice of the parties, and the industry practice, I find that defendant's attempt to show that it has not violated § 2(A) (1) -- although resourceful -- must be characterized as "insubstantial."

 First, the Company contends that § 2(A) (1) does not mean what it says because of other provisions of the 1980 Collective Bargaining Agreement. There can be no dispute with the general proposition of contract interpretation that one clause of a contract should not be viewed outside the context of the entire agreement in which it appears. However, the other provisions of the 1980 Collective Bargaining Agreement relied upon by defendant do not even arguably alter the clear meaning of § 2(A) (1).

 Eastern contends that, when § 2(A) (1) is read in conjunction with the preamble and § 1 of the agreement, it must be interpreted to apply only to the flight attendants based in the United States, not to foreign-based flight attendants. The preamble provides:

 
"This Agreement is made and entered into in accordance with the provisions of the Railway Labor Act, as amended, by and between [the Company and the Union], representing the ...

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