present agreement -- as evidence of custom. United claims that it faced immigration difficulties there which put the AFA on notice that creation of such foreign domiciles would implicate the host nation's immigration law. The Union disclaims knowledge of these immigration problems and argues that an implicit contract term cannot be inferred from custom and practice if it had not "occurred for a sufficient period of time with the knowledge and acquiescence of the employees." Shore Line, 396 U.S. at 154. However, it is hard to see how the union could have missed the fact that visas and work permits were required of a substantial number of employees in order for them to work in London.
Thus, neither the terms of the contract nor the past history of dealings between the parties points so clearly in one direction that United's justifications for what it says it has done can be rejected as frivolous or insubstantial. I conclude, nevertheless, that it is likely that plaintiff will succeed in persuading the finder of fact at a trial that what is at issue here is a major dispute. I reach this conclusion because I find at this stage of the proceedings that it is likely that plaintiff will succeed in persuading the finder of fact that what United is in fact engaged in is not, as it describes it, a straightforward attempt to apply the seniority clause of the CBA with the proviso relating to qualifications but that it is, instead, engaged in an effort to manipulate the process of obtaining visas and work permits in order to avoid compliance with the CBA's seniority provisions.
The facts of this case at this preliminary stage demonstrate that this dispute is "more properly framed as an attempt . . . to alter unilaterally" the normal requirement of seniority appointment on all flights by "the vehicle" of the visa requirement, Burlington, 862 F.2d at 1274, and that United's argument based on the term "qualifications" is, thus, in all likelihood, made in bad faith. See O'Donnell v. Wien Air, Alaska, 551 F.2d 1141, 1147 (9th Cir. 1977) ("The provisions of the Railway Labor Act may not be avoided merely through device of unilateral action which the actor purposefully intends shall not become a part of the agreement.") (quoting Switchmen's Union v. Southern Pacific Co., 398 F.2d 443, 447 (9th Cir. 1968)); International Bhd. of Elec. Workers v. Washington Terminal Co., 473 F.2d 1156 at 1172 (D.C. Cir. 1972), cert. denied, 411 U.S. 906, 36 L. Ed. 2d 195, 93 S. Ct. 1530 (1973) (same). I make this finding that United's purported contractual justification is "insincere," Conrail, 491 U.S. at 306, based on all the circumstantial evidence on the point including the evidence of the way United has dealt with the visa/work-permit issue in the past at the other domiciles it has sought to establish, the distinctly different way it had dealt with the issue here, the manner in which it dealt with this issue with the French authorities, the less-than-candid fashion in which it has handled the issue with its employees, its reticence in this Court, and United's distinct motivation to evade the seniority provisions of the CBA in order to hire more foreign language-qualified personnel.
As already noted in dealing with the issue of work permits and visas in the past, United has either worked together with the union in reaching a mutually satisfactory solution (as in Asia) or has accomplished a result unilaterally which satisfied its own and its flight attendants' objectives (as in London where it obtained more work permits than needed to satisfy all applicants for the job). In the case of Paris, it has followed its practice in London of proceeding unilaterally to negotiate with the local authorities on its own behalf and on behalf of its flight attendants. In Paris, however, it has come up substantially short of the number of visas necessary to accommodate all of the flight attendants bidding for the job in order of seniority. While United seeks to portray this as the result of French intransigence, it supplies little persuasive evidence to support this; the union disputes it; and the airline fails to deal with the obvious inferences to be drawn from the fact that the end result of its unilateral dealings serves its own interest in departing from the seniority list in order to hire more multi-lingual EEC natives and disserves the interests of its employees. See Armstrong v. Republic Realty Mtg. Corp., 631 F.2d 1344, 1348-49 (8th Cir. 1980); Hubbs v. United States, 20 Ct. Cl. 423, 427 (1990), aff'd, 925 F.2d 1480 (Fed. Cir. 1991).
Other evidence as well supports a finding that United is using the qualifications issue to mask its disregard for the seniority list, including the company's lack of disclosure to the union and its members of what it was about until it was too late for the union or its members to do much to change the result, the unclear if not misleading communications to union members concerning who was responsible for securing visas, and the apparent effort to create a paper record of assisting flight attendants to obtain work permits at a time and under such circumstances as to make the task impossible. Based on all of the circumstances, I conclude at this point that the company is unlikely to prevail on the merits of this issue.
United does not even argue that it was entitled under the CBA to interfere with the employees' ability to become qualified in order to avoid the impact of the seniority clause. If it made such an argument, it would plainly be frivolous.
See Burlington, 862 F.2d at 1273. Instead, it argues that that is not what it did. Because I find at this stage of the proceedings that plaintiff will likely succeed on the merits in persuading a finder of fact that this, indeed, is what it did, the first prong of the test for issuance of a preliminary injunction is met.
This leaves the issue of irreparable harm. Defendant argues that there will be no irreparable harm because it can identify all attendants who wanted to transfer but were not allowed to do so with reasonable certainty, and thus make them whole, and that only a few attendants have been shut out of this new domicile.
However, both sides recognize that bidding for schedules is itself a tightly interconnected system based on seniority, where a more senior attendant's preferred schedule has consequences that cascade down throughout the rest of the assignments. While it might be possible to determine the identities of attendants who wanted to transfer to Paris but have not been permitted to do so as a result of the company's conduct, that does not suffice. If those attendants were relocated to Paris, then the routes -- both domestic and international -- assigned to the domiciles that they left in favor of Paris would be opened up to less senior bidders. How these people would bid on those opportunities cannot be determined if those opportunities are not presented. While, as United points out, the Second Circuit in Local 553 rejected the argument that inconvenience constitutes irreparable harm, that Court also noted that as a practical matter such intangibles as convenience necessarily shape monthly schedules under the bidding system in a way that cannot be calculated.
There remains to be considered what form preliminary relief should take and upon what conditions it should be awarded. With respect to the form of relief, it seems apparent that simply directing United to afford senior flight attendants, otherwise entitled to an award of the position, a full and fair opportunity to obtain visas will in all likelihood not be adequate. By agreeing unilaterally with French authorities that 75 visas would serve its purposes, United has effectively compromised the ability of flight attendants proceeding on their own to obtain additional visas. Colloquially speaking, United has "poisoned the well." Accordingly, United must convey to the French authorities in no uncertain terms, as it did in analogous circumstances in Great Britain, that its collective bargaining agreement with its employees and U.S. law obligate it to seek visas for all employees on its seniority list who bid for vacancies at the Paris domicile and are entitled to the award because of their place on the company's seniority list. The only effective way of conveying this message to the French government at this juncture is to bar the airline from filling any vacancies unless work permits are obtained for all flight attendants seeking the position and otherwise entitled to it by reason of their seniority.
An early trial on the merits seems appropriate. If an early trial cannot be held and if United's good-faith efforts, taken together with the union, to secure visas for all, do not succeed over time in obtaining relief from the French authorities; the parties may well agree between themselves to fill the vacancies by hiring some number of citizens from EEC countries who do not require visas and who are not entitled to the award based on seniority. If such conditions as outlined above are met and the parties cannot agree on a modification of the preliminary injunction, United may return to Court to seek modification of the preliminary injunction.
With respect to the conditions on the grant of the preliminary injunction, defendant has informed the Court that it will incur costs of $ 100,000 per month if the domicile does not open on August 1 -- these costs representing the price of staffing these flights in the same method currently used by the airline. While it cannot be determined in advance how long the opening of the domicile will be delayed by the requirement that the parties return to the French authorities to obtain additional visas, there is no reason to think it will take all summer.
Since it may be inferred that both sides anticipate some cost savings from the establishment of the domicile, the Court will fix $ 50,000 as the amount of the bond which the union must post as condition for the effectiveness of the injunction to secure United against costs and damages incurred or suffered in the event that it is found to have been wrongfully enjoined.
For the foregoing reasons, United is preliminarily enjoined pending further order of this Court or the trial of this matter from filling flight attendant vacancies at its Paris, France domicile unless and until visas are obtained from the French government for all flight attendants requiring them and otherwise entitled to fill such vacancies by reason of their seniority.
The Clerk is directed to mail a copy of the within to all parties.
Dated: Brooklyn, New York
July 16, 1992
Charles P. Sifton
United States District Judge
PRELIMINARY INJUNCTION ORDER
For the reasons stated and upon the findings of fact and conclusions of law set forth in this Court's Memorandum Decision and Order dated July 16, 1992, it is hereby
ORDERED that defendant, United Airlines, Inc., its agents, servants, attorneys, employees, and all those in active concert and participation with them be, and they hereby are, enjoined pending further order of this Court or the trial of this matter from filling flight attendant vacancies at its Paris, France domicile unless and until visas are obtained for all flight attendants on United's seniority list seeking to fill such vacancies and who are otherwise entitled to fill them based on their position on the company's seniority list, but lack a visa required by the French authorities to take up the position; and it is hereby further
ORDERED that the effectiveness of this preliminary injunction be and hereby is conditioned upon the posting of a bond by the plaintiff in the amount of $ 50,000 to secure payment of such costs and damages as may be incurred or suffered by United in the event it is found to have been wrongfully enjoined.
The clerk is directed to mail a copy of the within to all parties.
Dated: Brooklyn, New York
July 16, 1992
Charles P. Sifton
United States District Judge