[00:00:00] Speaker 04:
Okay, so we're 17.

[00:00:31] Speaker 03:
But just wait a second until your friends are all settled.

[00:00:57] Speaker 01:
Good morning.

[00:00:58] Speaker 01:
Good morning, Your Honor, and may it please the Court.

[00:01:00] Speaker 01:
My name is Ed Gleason.

[00:01:01] Speaker 01:
I represent the appellants, in this case the union, and its pilots, of course.

[00:01:07] Speaker 01:
Your Honor, we're here on an appeal from the grant of an injunction.

[00:01:11] Speaker 01:
issued by Judge Moss last fall.

[00:01:16] Speaker 01:
We're here on appeal because we think that and our point that we'd like to discuss with you today is the trial court made I think several legal mistakes and misapplied very well settled law in determining that it

[00:01:31] Speaker 01:
It could indeed, it did indeed have even jurisdiction to grant such an injunction.

[00:01:37] Speaker 01:
And I'd like to discuss, both sides have very extensively filed papers and argued this, a lot of paper, a lot of trees.

[00:01:46] Speaker 01:
But the thing I'd like to really focus on this morning, Your Honors,

[00:01:50] Speaker 01:
is to go back to shoreline.

[00:01:53] Speaker 01:
Let's go back to the analysis that actually is required here to determine whether there was indeed a status quo violation in the first place.

[00:02:00] Speaker 01:
This is a case where although the carriers actually identified or purported to identify dozens of examples of actual

[00:02:11] Speaker 01:
conduct, behavior as they call, that violated what they call the status quo.

[00:02:18] Speaker 01:
They never really got around to defining in any discernible way what the status quo was.

[00:02:23] Speaker 01:
This isn't a case that the carriers conceded that there is no violation of the collective agreement.

[00:02:29] Speaker 01:
There was no, they didn't proceed on a basis that there was any violation at all of the collective agreement or even therefore best practices under that.

[00:02:38] Speaker 01:
They instead

[00:02:39] Speaker 01:
At trial, they claimed that this is only an RLA section two first, therefore implied status quo case.

[00:02:48] Speaker 01:
That does not negate or eliminate their obligation to point out to the court what precisely is the status quo that they're saying was changed.

[00:03:01] Speaker 01:
In this case, they hinge their status quo claims simply on claims of change in behavior.

[00:03:08] Speaker 01:
Behavior alone does not make

[00:03:11] Speaker 01:
a RLA practice or condition under the shoreline decision.

[00:03:16] Speaker 01:
The shoreline decision still requires that even in a case where you concede that there's no violation of a specific term in the collective agreement, you still have to find a practice or a working condition that's actual and it has to be actual and objective conditions such that they're deemed to be an implied term as if they're part of the collective agreement.

[00:03:38] Speaker 01:
To be a status, to therefore to be an RLA

[00:03:41] Speaker 01:
Section 6 status quo or practice, it has to be something that's clear.

[00:03:46] Speaker 01:
It has to be something that's determined based upon mutuality, acquiescence.

[00:03:53] Speaker 04:
What's your argument with respect to the block out?

[00:03:56] Speaker 04:
There are three things we're talking about.

[00:03:58] Speaker 04:
What is one of the contractual obligations?

[00:04:01] Speaker 04:
What are the legal obligations with respect to blocking out?

[00:04:05] Speaker 01:
The blocking outers that's been referred to as the boot program, the company, we think it's, quite bluntly, we think it was an absurd claim even that that could ever constitute a status quo.

[00:04:20] Speaker 01:
Contractually, we have a responsibility to show up and work and report for duty and to fly our airplanes and to do that percent of public policy.

[00:04:28] Speaker 04:
Is there some sort of obligation somewhere that a pilot has once ready must leave even if it's before the time?

[00:04:33] Speaker 01:
No, not at all.

[00:04:35] Speaker 01:
The company made a bold claim that there's such a metric as loaded and ready.

[00:04:39] Speaker 01:
There's not at all any metric like that anywhere.

[00:04:43] Speaker 01:
In fact, to the contrary, in the company's policy manuals, they actually have a requirement that you cannot depart earlier than the estimated time of departure, any earlier than 15 minutes from that.

[00:04:56] Speaker 01:
And so Judge Moss even determined that it was a violation, you know, determined that to the extent there was any behavioral activity presection six, it included even 25 minutes.

[00:05:07] Speaker 01:
It's not the appropriate analysis.

[00:05:08] Speaker 01:
There is no metric whatsoever, whether it be by these carriers or any other carrier that I'm aware of that has a loaded and ready

[00:05:15] Speaker 01:
policy or procedure and certainly in here there is never ever any metric certainly that could rise ever to the level of a status quo practice even that there's such behavior could actually be enjoined now that we're in a section six period it's just not there I'm not entirely sure what the injunction would do for example with respect to that what's being I'll ask the other side in your view what's being enjoined if there's no requirement anywhere contractual

[00:05:44] Speaker 04:
federal regs, as far as I know, the regs simply talk about leaving on time, as far as I recall, right?

[00:05:53] Speaker 04:
The federal regs don't say once you're ready, you can leave before on time.

[00:05:59] Speaker 01:
I'm not aware of any federal reg that says that, and the only metrics I am aware of

[00:06:04] Speaker 01:
And I think it's also just by the regulatory authorities at specific airports is, you know, when you get there, you have slot times, for instance, like that, when you can arrive and sync with that.

[00:06:12] Speaker 01:
But the real metric has always been one of arrival time, are you late or not.

[00:06:16] Speaker 01:
This is not a slowdown case simply because we left less early than what they claimed that we did previously to Section 6.

[00:06:22] Speaker 04:
What do you think the injunction requires the pilots to do with respect to blocking out?

[00:06:26] Speaker 01:
What does that mean?

[00:06:27] Speaker 01:
I'm sorry?

[00:06:28] Speaker 04:
What does that mean?

[00:06:29] Speaker 01:
I think ironically, I guess the converse would be true.

[00:06:31] Speaker 01:
We shouldn't block out on time.

[00:06:33] Speaker 01:
I mean, that's really how bizarre that I think that entire claim was.

[00:06:37] Speaker 01:
Our behavior was that the pilots, they have discretion.

[00:06:41] Speaker 01:
It's part of their job, obviously.

[00:06:43] Speaker 01:
As pilots license, the pilots have discretion to determine when it's safe, when it's appropriate.

[00:06:47] Speaker 01:
and when they are indeed ready to fly.

[00:06:49] Speaker 01:
But they're also subject to the restrictions of, you know, the 15-minute restriction, like I said before.

[00:06:54] Speaker 01:
But to say simply because they left, let's say, 20 minutes earlier than the second, sixth, and now they're required to do that in every instance or risk contempt now that there's an injunction issued, that's a worrisome prospect for my client and for my client's pilots.

[00:07:10] Speaker 04:
So... Well, you're accepting the overtime.

[00:07:12] Speaker 04:
You know, you put on some decent evidence to suggest.

[00:07:15] Speaker 04:
It's a clear explanation.

[00:07:18] Speaker 04:
as to why the pilots were unwilling because what the company was offering had changed.

[00:07:24] Speaker 04:
The company's burden, not your burden, the company's burden to get the injunction to show that in fact there had been a change in the status quo with respect to Overtown.

[00:07:35] Speaker 04:
Your claim is that what the company was offering was different.

[00:07:39] Speaker 04:
And therefore, it's perfectly reasonable that what you saw from the pilots changed.

[00:07:46] Speaker 04:
And indeed, it was inconsistent what you saw from the pilots.

[00:07:49] Speaker 04:
What do you think is their best case with respect to the overtime?

[00:07:53] Speaker 04:
I mean, it's clear to me what you put in, and I understand what you put in.

[00:07:56] Speaker 04:
What do you think is the best case that they're putting in with respect to change of status quo?

[00:08:02] Speaker 01:
I think the carrier's best case has always hinged upon the statistical analysis to simply determine what past behavior based upon circumstances that have indeed changed.

[00:08:13] Speaker 04:
But the statistical analysis, if I'm understanding you correctly, does not incorporate an understanding or an attempt to digest the change in what's being offered.

[00:08:23] Speaker 01:
That's correct.

[00:08:24] Speaker 01:
And I think that the use of statistical analysis there was a mistake by the court and it's up.

[00:08:28] Speaker 04:
It's the same thing.

[00:08:29] Speaker 04:
The raw numbers don't mean a thing if what the pilots are being offered is not the same as it was before.

[00:08:36] Speaker 04:
And indeed, am I right with respect to the overtime that what you saw was actually fluctuating?

[00:08:42] Speaker 04:
And indeed, there was one month

[00:08:44] Speaker 04:
which was during the holiday period, the overtime acceptance rate was not down.

[00:08:49] Speaker 01:
Yeah, it's correct, Your Honor.

[00:08:51] Speaker 01:
It was actually a, statistical gymnastics is perhaps a generous way to, you know, from our perspective as to what took place here.

[00:08:58] Speaker 01:
The statistics that were used in order, that certainly persuaded Judge Moss were not consistently even applied, and they frankly dealt with wholly new, made up first specifically for this case, metrics.

[00:09:12] Speaker 04:
All right.

[00:09:13] Speaker 04:
What they're trying to and what the trial judge was buying was the kind of ha-ha messages going between union leadership and members as if to suggest, you know, we've got some leverage here.

[00:09:30] Speaker 04:
And I'm really not sure what to do with it in my mind because I don't know that they're making out the case.

[00:09:35] Speaker 04:
But on the other hand, there are cases that say or seem to suggest when there are these ha-ha messages, you know, kind of give it to them,

[00:09:43] Speaker 04:
you know, then you're in a less good position than you would otherwise be.

[00:09:48] Speaker 01:
We can't run away from the communications that, you know, are in the record, your honor, and we don't.

[00:09:55] Speaker 01:
But we do think that those communications were taken clearly out of context and used for the wrong reason.

[00:10:02] Speaker 01:
Let me ask you that.

[00:10:03] Speaker 03:
I mean, you agree, don't you, that if there is evidence

[00:10:08] Speaker 03:
of a concerted effort, that the union orchestrated a concerted slowdown to create pressure on the ongoing negotiations, that that is a major dispute.

[00:10:23] Speaker 03:
If one can find it, that's what you're looking for, right?

[00:10:25] Speaker 01:
That's... Well, Your Honor, I would have to nuance that one extra step.

[00:10:28] Speaker 01:
There would also have to be discernible, demonstrable harm.

[00:10:31] Speaker 01:
Okay.

[00:10:32] Speaker 04:
Wait, wait, wait, wait.

[00:10:33] Speaker 04:
Let me make sure we're joining this carefully.

[00:10:35] Speaker 01:
Sorry?

[00:10:36] Speaker 04:
But Judge Griffith asks you, leaves out the inquiry about change in status quo.

[00:10:42] Speaker 01:
Yes.

[00:10:43] Speaker 01:
That's correct.

[00:10:43] Speaker 01:
Isn't that part of your answer?

[00:10:44] Speaker 01:
Yeah, I mean, and that's why it was good.

[00:10:46] Speaker 04:
You're saying you can be as concerted as you want it, but if there's no change in the status quo, there's no failure.

[00:10:52] Speaker 01:
Yeah, you still have to find, is there a status quo within the meaning of the RLA and the shoreline and its progeny?

[00:11:00] Speaker 01:
Was there a change in that status quo?

[00:11:02] Speaker 04:
So that's your answer to the ha-ha.

[00:11:05] Speaker 01:
Yeah, I mean, frankly, that's part of the answer.

[00:11:08] Speaker 04:
Whatever.

[00:11:08] Speaker 04:
There's no change in the status quo.

[00:11:10] Speaker 04:
The overtime is an easy explanation.

[00:11:16] Speaker 04:
I don't know the blocking out.

[00:11:17] Speaker 04:
I'll have to hear what the company is saying.

[00:11:18] Speaker 04:
That one is baffling to me.

[00:11:20] Speaker 04:
I don't know what that means.

[00:11:21] Speaker 04:
I don't know what the status quo is there.

[00:11:24] Speaker 04:
And on the sick leave, I don't know how you put it in the status quo if every single case that they're citing

[00:11:30] Speaker 04:
There's an explanation for the person's absence.

[00:11:33] Speaker 04:
Which we demonstrated each and every instance, not just to the sick leave, examples of what they called abuse, as well as the fatigue, which will... My understanding of your evidence is every absence or call-in was explained, and the company's not contesting that it was legitimate.

[00:11:50] Speaker 01:
That's correct, Your Honor, and the company conceded it.

[00:11:52] Speaker 04:
I'll have to ask them.

[00:11:54] Speaker 04:
Your answer to Judge Griffith is it's not just a notion of concerted activity.

[00:12:00] Speaker 04:
There's got to be a change in the status quo.

[00:12:02] Speaker 01:
Yes.

[00:12:02] Speaker 01:
And at the end, yes.

[00:12:03] Speaker 01:
And there also has to still be, even if you get to that next point, the last step, at the back end, if you will, there still has to be a discernible harm.

[00:12:12] Speaker 01:
This case deals with, it pulls down to, if we plow through more than 140 pages of very

[00:12:18] Speaker 01:
detailed statistical analysis from the carrier's expert, pulls down to what the carriers have described as an, on average, 6 minutes and 18 seconds worth of departure delay.

[00:12:30] Speaker 01:
That's why we're here.

[00:12:31] Speaker 02:
What is wrong with the following sequence?

[00:12:36] Speaker 02:
Tell me where you get off the point.

[00:12:41] Speaker 02:
One, the union

[00:12:45] Speaker 02:
mounted a slowdown campaign and persistently directed or instructed or advised pilots to block out on the scheduled time, right?

[00:13:00] Speaker 02:
You don't dispute that?

[00:13:01] Speaker 01:
I do.

[00:13:02] Speaker 01:
I dispute the characterization that what took place was actually a slowdown.

[00:13:06] Speaker 02:
Okay, well, there was a campaign and the union said that.

[00:13:12] Speaker 02:
The statistics that are cited say that before February 2016, nearly 80 percent of Atlas flights blocked out prior to their scheduled departure time.

[00:13:28] Speaker 02:
After February, only approximately 34% blocked out prior to their scheduled departure time.

[00:13:37] Speaker 02:
You see the connection.

[00:13:39] Speaker 02:
What is wrong?

[00:13:41] Speaker 02:
Where's the mistake in that?

[00:13:43] Speaker 01:
Well, the mistake is because I consider it to be on behalf of my client as well.

[00:13:48] Speaker 01:
It's either Orwellian or Kafka-esque to say that we departed early, you know, less early than we did previously.

[00:13:54] Speaker 01:
This is not a case where we left after even the estimated time of departure.

[00:13:57] Speaker 01:
This is a case where, and I apologize for the time, but this is a case where we left less early.

[00:14:03] Speaker 01:
It's the same as when they talk about in the communications

[00:14:05] Speaker 01:
of shop.

[00:14:06] Speaker 01:
It does remind me very much of Kafka or Orwell.

[00:14:10] Speaker 01:
How is it that I'm subject now to contempt with an injunction hanging over my client's head, just simply because of an educational program that says that we should do less, we should stop doing less for a company?

[00:14:23] Speaker 01:
That's not a status quo.

[00:14:25] Speaker 01:
I can't find a status quo within there.

[00:14:27] Speaker 02:
The injunction as to the union is simply stop

[00:14:32] Speaker 02:
advising the pilots to change the situation that existed before February 2016.

[00:14:40] Speaker 02:
Isn't that it?

[00:14:42] Speaker 01:
no i think that the the danger that if this decision stands the danger is that any creative any creative council and along with great creative statisticians can take our pre-section six behavior concerted behavior in enforcing and you know just doing our collective bargaining enforcement can be deemed to be obstructing in some way or another the carrier's operations the AHA as Judge Edwards called it here is important in the district court's reasoning i think it starts let me just read to you

[00:15:11] Speaker 03:
one of the ah-hahs, okay?

[00:15:14] Speaker 03:
Atlas executives believe that if they can delay a new CBA long enough, you will lose your interest and your resolve and start violating the CBA, cutting corners and resign yourself to the status quo and abandon the quest for an industry-leading CBA.

[00:15:28] Speaker 03:
Well, this cannot be allowed to be the case.

[00:15:30] Speaker 03:
You must shop, boot, and push back on all their tactics harder than ever, as we are struggling, we desire.

[00:15:39] Speaker 03:
That's a call to action, right?

[00:15:41] Speaker 03:
It was a call to action by the members.

[00:15:44] Speaker 03:
Now the question is, did they respond?

[00:15:47] Speaker 03:
And you're saying they didn't respond?

[00:15:49] Speaker 01:
They responded to a call to action to make sure to know your contract and enforce today's contract, not to influence tomorrow's contract, but today's.

[00:15:57] Speaker 03:
We are starting to get the movement out of this company we desire.

[00:16:03] Speaker 03:
So what's the district court judge, who's the back fighter, what's he supposed to do with language like that?

[00:16:10] Speaker 03:
Disregard it?

[00:16:10] Speaker 01:
No, what we had asked him to do was we didn't run away from those communications, if we even could, you know, we didn't anyway, is because he should have taken the consideration of the context in which all of that arose.

[00:16:22] Speaker 01:
Those programs, those communications dealt with something that had been agreed, that both parties knew as early as January of 2015, long before we filed a Section 6 notice, that dealt with

[00:16:34] Speaker 01:
what Captain Kirchner had called a bilateral policy of strict compliance on both sides, because it dealt with the carrier or the union's concerns that the carrier was frankly running roughshod, continuing to violate, and specifically with respect to that quote, making special deals with our individual pilots.

[00:16:56] Speaker 04:
lawfully permitted to do and contractually permitted to do, doesn't fit the legal prescription.

[00:17:02] Speaker 04:
In other words, there can be a call to action, you're saying, but on the blocking, it's a call to action to do what is perfectly permissible because there's no rule that requires you to leave before the starting time.

[00:17:15] Speaker 01:
That's your argument.

[00:17:16] Speaker 01:
Yes, Your Honor, that is correct.

[00:17:17] Speaker 01:
In a nutshell, that is correct.

[00:17:19] Speaker 02:
Is that also true with respect to last minute sick calls?

[00:17:24] Speaker 01:
Yeah, I mean, last minute sick call is something that was invented for this purpose of the litigation that they brought against this case.

[00:17:30] Speaker 01:
Again, there's no metric for last minute sick call, nor is there any communication even in this record or anywhere else that says that you must wait until the last second to call a sick.

[00:17:39] Speaker 01:
What was instead litigated at the beginning through its complaint was that the pilots had abused sick calls, period, and then they made up

[00:17:46] Speaker 01:
They called it abuse, and then they waited until the last second.

[00:17:49] Speaker 01:
Well, the examples of abuse, as we discussed with Judge Edwards, were each and every one were refuted, and the company recognized and conceded that.

[00:17:56] Speaker 01:
So it was a made-up metric because they couldn't determine that overall a true sick leave abuse, like we've seen in other cases,

[00:18:02] Speaker 01:
This doesn't exist statistically or otherwise, not even statistically in this case.

[00:18:08] Speaker 01:
So they had the jury, if you will, the jury, they had to kind of reverse engineer statistics to try to show a case that doesn't exist legally because there was no status quo.

[00:18:17] Speaker 03:
So we're reviewing the district court's injunction here, right?

[00:18:20] Speaker 03:
And the district court determined there was a link between the call to action and this conduct, right?

[00:18:28] Speaker 03:
And how were you to review that finding?

[00:18:32] Speaker 03:
It's for clear error, right?

[00:18:33] Speaker 01:
No, I don't, because I think it has to go back to the abuse of discretion because of the misapplication of the shoreline.

[00:18:41] Speaker 01:
The judge's findings were based upon an incorrect application of the RLA and the shoreline in its progeny with respect to what is a status quo.

[00:18:50] Speaker 01:
And I think everything that flowed from that was an abuse of discretion.

[00:18:55] Speaker 04:
So I- You're more or less acknowledging

[00:18:59] Speaker 04:
The judge's findings are saying, yeah, there may have been a link, but it's irrelevant because there's no change in the status quo.

[00:19:07] Speaker 04:
Yes, there may have been suggestions to the union.

[00:19:10] Speaker 04:
You know, under the law, federal regulations, and under the contracts, you don't have to leave before departure time.

[00:19:17] Speaker 04:
And there's no company rule that says you do.

[00:19:20] Speaker 04:
So you're saying the call to action?

[00:19:22] Speaker 04:
Yeah, district court was right.

[00:19:23] Speaker 04:
Maybe there was a call to action, but so what?

[00:19:25] Speaker 04:
Is what you're arguing.

[00:19:27] Speaker 04:
Is my understanding.

[00:19:27] Speaker 01:
Your Honor, that's correct, but I'm wrestling with trying to respond to Judge Griffith, and that has to do with the fact that the Blink Tourie, you know, to try to influence, you know, the Section 6 negotiation as well.

[00:19:39] Speaker 01:
There is no link there.

[00:19:40] Speaker 01:
The link, the reason, if you will, behind that dealt with trying to enforce today's collective agreement.

[00:19:45] Speaker 01:
There are so many repeated, the whole tapestry, a 19-month effort to put that case together before they dropped it on us in an emergency hearing, it was very cleverly done, but it also very cleverly concealed the fact that they didn't have a status code to start with.

[00:20:00] Speaker 01:
That was only one of many problems.

[00:20:01] Speaker 01:
There were several others, as we point out in our papers, but the one other one, again, is at the back end of that analysis again.

[00:20:08] Speaker 01:
Even if you made both those connections, at the end of the day, there was no discernible harm.

[00:20:12] Speaker 02:
The term status quo, does the status quo under the Railway Labor Act take into account what we used to call the law of the shop?

[00:20:23] Speaker 02:
In other words, you go to any plant, any manufacturing facility, any service facility or whatever, and there's certain practices that grow up over time and they're not spelled out in the collective bargaining agreement.

[00:20:36] Speaker 02:
There's tacit approval, sometimes there's explicit approval, and eventually,

[00:20:41] Speaker 02:
the law of the shop develops, almost like a common law.

[00:20:45] Speaker 02:
As a matter of fact, when I worked for General Motors, retired Justice Whitaker was the arbitrator or whatever, and it was all this common law in the factories and so on and so forth.

[00:20:58] Speaker 02:
Does the Railway Labor Act take that into account as a status quo?

[00:21:03] Speaker 01:
It does, but the operative term in your question was certain past practices, not all past practices.

[00:21:08] Speaker 01:
I think this Court itself and Eastern Airlines pointed out, and as I believe the Eighth Circuit in the UTU case also pointed out, not every past practice actually rises to the level of becoming a well-established past practice within the meaning

[00:21:21] Speaker 01:
both of, frankly, both statutes, whether you're under the NRA or whether you're under the RLA.

[00:21:26] Speaker 01:
And when we're here under the RLA and when we're dealing with section two first, we're, again, not dealing with a claim of a specific term in the collective agreement, and that is where you're going, I believe, Your Honor, towards a past practice.

[00:21:38] Speaker 01:
If the practice or condition about which we're discussing

[00:21:41] Speaker 01:
is a well-established past practice.

[00:21:43] Speaker 01:
In other words, is it an objective, actual working condition that's measurable, based upon mutual knowledge, consent, if you will, acquiescence, and of long duration?

[00:21:55] Speaker 01:
Yeah, that can rise to, you know, that could rise to the level of past practice.

[00:21:59] Speaker 04:
You're saying the district court made no such finding.

[00:22:02] Speaker 01:
That's correct.

[00:22:02] Speaker 04:
I think that the district court incorrectly adopted... Didn't explain what the past practice was, because certainly a past practice could give rise

[00:22:10] Speaker 04:
Your argument is the district court never defined what the past practice was in the first place.

[00:22:17] Speaker 01:
Yeah, that's correct.

[00:22:19] Speaker 01:
To the extent that the district court, if you will, purported to define one, it was based upon such vague – it didn't meet the standard under shoreline to determine whether it was a well-established practice, one that actually attaches to Section 2.1 into the status quo obligation under the statute.

[00:22:34] Speaker 04:
If the company had, during this period, introduced or announced

[00:22:40] Speaker 04:
From here on in, we have a policy that you have to block.

[00:22:44] Speaker 04:
You have to get out of the gates and gave a list of rules before the actual starting time.

[00:22:52] Speaker 04:
Here's when you should leave.

[00:22:55] Speaker 04:
You don't have discretion.

[00:22:56] Speaker 04:
You've got to do it.

[00:22:57] Speaker 04:
Is that a major or minor dispute?

[00:22:59] Speaker 04:
If they enacted a policy as to when the pilots had to leave the gate.

[00:23:05] Speaker 01:
I'd have to follow that policy in it, and if I didn't, I think they would... Is that a major of mine dispute?

[00:23:10] Speaker 04:
It's new.

[00:23:11] Speaker 04:
It's never been there before.

[00:23:13] Speaker 04:
That's part of what you're arguing.

[00:23:15] Speaker 04:
There was no policy.

[00:23:16] Speaker 04:
There was none, but... How the company puts a policy in place.

[00:23:19] Speaker 01:
After Section 6?

[00:23:20] Speaker 04:
Excuse me?

[00:23:21] Speaker 01:
I'm sorry to interrupt you, Your Honor, but after or before Section 6?

[00:23:25] Speaker 04:
in the same time period in which we're talking about now.

[00:23:27] Speaker 01:
Then, no, it wouldn't work because it's a new policy that it's changing, you know, frankly, our discretion.

[00:23:34] Speaker 01:
I don't think that would work either, right?

[00:23:36] Speaker 04:
So you're saying that would be a major dispute.

[00:23:37] Speaker 01:
Yeah, because there would have been no status quo from which to measure it from pre-section six.

[00:23:46] Speaker 01:
In this case, the behavior is really what I think confused the trial court.

[00:23:51] Speaker 01:
Behavior alone, again, does not a past practice make within the meaning of this statute or the NLRA.

[00:23:57] Speaker 01:
And so, Your Honor, we have, again, I know I've greatly exceeded in my, sorry for that, our time, which still, if it's possible, like to reserve two minutes, that's up to the court's discretion.

[00:24:07] Speaker 01:
One quick, one other point.

[00:24:10] Speaker 01:
Whatever, I know it's almost like stands out like a wholly different one, like a sore thumb,

[00:24:15] Speaker 01:
I also have to tell you, I believe very strongly that the court misapplied the Norris-Legorty Act, Section 7E, and it did so based upon, frankly, misreading of this court's decision in the Green case, the 1941 decision.

[00:24:29] Speaker 01:
It's a case of, I believe Judge Edwards was actually the judge on that one, in the Meade case, the Crest-Tankers case actually states with authority,

[00:24:36] Speaker 01:
And the misapplication of the misreading of that statute was that, you know, there was a belief that actually there was a violence case that would therefore have triggered section 70.

[00:24:45] Speaker 01:
If you read the case more carefully, the 41 decision from Green, and I think it's on page 53, you will find that the alleged violence that was being discussed there was violence that took place four years before the complaint even issued, you know, initiated that case.

[00:25:00] Speaker 01:
And the MEBA, the Chris Tanker's case, cites the Green case with authority.

[00:25:05] Speaker 03:
We're going to give you a couple minutes.

[00:25:07] Speaker 03:
I'm sorry.

[00:25:07] Speaker 03:
Thank you.

[00:25:08] Speaker 03:
I appreciate it.

[00:25:23] Speaker 05:
Good morning.

[00:25:25] Speaker 05:
Robert Siegel for Atlas Air.

[00:25:28] Speaker 05:
Let me, if I might, your honors, go right at this issue.

[00:25:32] Speaker 05:
First of all, the district court correctly determined that the union had issued a call to arms to slow down pilot behavior, to slow down and disrupt the operation in commerce for the purpose of imposing leverage

[00:25:51] Speaker 05:
during a major dispute over the negotiation of a collective bargaining agreement.

[00:25:58] Speaker 05:
The district court correctly determined that when a union issues a call to arms for pilots to change their behavior in a manner that slows down, disrupts commerce and operations for the purpose of impacting a major dispute,

[00:26:15] Speaker 05:
That is a violation of section two first of the Railway Labor Act.

[00:26:19] Speaker 04:
Council, let me stop you here, because it's not nuanced enough.

[00:26:22] Speaker 04:
I mean, I hear you, and it sounds impressive, but there's more to it.

[00:26:28] Speaker 04:
If there's a call to action to act within permissible, lawful limits, and the call to action is to do something that's not inconsistent with a known status quo, I don't know how you get to where you want to get.

[00:26:41] Speaker 04:
You're ignoring the status quo question.

[00:26:44] Speaker 04:
When I look at these quite apart from the overtime question where I can't comprehend your case at all because the circumstances, it's changed.

[00:26:53] Speaker 04:
Your case seems ridiculous to me, to be very honest with you on the overtime because the circumstances completely changed.

[00:26:59] Speaker 04:
You can't measure them by raw numbers.

[00:27:01] Speaker 04:
But in any event, I don't understand your argument to go as far as it has to go to deal with they acted within permissible limits.

[00:27:12] Speaker 04:
There was nothing that

[00:27:14] Speaker 04:
they did that was inconsistent with contractual or legal limits.

[00:27:18] Speaker 04:
And there's nothing to show that what they did was inconsistent with the status quo.

[00:27:23] Speaker 05:
Your Honor, I disagree, if I might please.

[00:27:25] Speaker 05:
First of all, the controlling authorities in this case are many over the last quarter century.

[00:27:31] Speaker 05:
These facts in this case are not unique.

[00:27:35] Speaker 05:
No, no, no.

[00:27:36] Speaker 04:
Tell me about the status quo.

[00:27:37] Speaker 05:
All right, I will, if I might, Your Honor.

[00:27:40] Speaker 05:
I want to reference the cases under Section 2 first, and then I'll discuss... Is the status quo relevant or not?

[00:27:46] Speaker 04:
Pardon me?

[00:27:46] Speaker 04:
Is the status quo relevant?

[00:27:48] Speaker 05:
What is relevant is the implied status quo under two-firsts of the Railway Labor Act, if I might.

[00:27:55] Speaker 05:
That is different from Section 6 status quo discussed in the Shoreline case that Mr. Gleason just cited to you.

[00:28:03] Speaker 05:
Shoreline did not involve a slowdown in disruption of operations in violation of two firsts.

[00:28:09] Speaker 05:
The question there was whether an employer may change work assignments consistent with the Section 6 status quo against employers changing terms and conditions of employment.

[00:28:21] Speaker 05:
without the Section 6 process.

[00:28:24] Speaker 05:
That's not our case.

[00:28:26] Speaker 05:
Our case is a different one.

[00:28:28] Speaker 05:
It does not involve Section 6 of the Railway Labor Act and the status quo there under.

[00:28:34] Speaker 05:
What it involves is Section 2 First of the Railway Labor Act.

[00:28:38] Speaker 05:
Section 2 First of the Railway Labor Act, according to the Supreme Court,

[00:28:42] Speaker 05:
has an implied status quo content to it, but it is not one of the status quo provisions in the railway labor act.

[00:28:53] Speaker 05:
The status quo, if I might, Your Honor, I agree that the status quo under section two first

[00:28:59] Speaker 05:
has been identified and has been described by the Seventh Circuit in two cases in the last few years.

[00:29:07] Speaker 05:
One is United versus IAM and one is United versus ALPA.

[00:29:12] Speaker 05:
It's been described in great detail by the Eleventh Circuit in Delta versus ALPA.

[00:29:18] Speaker 05:
It's been decided in recent years in the District Court in Charlotte and in Fort Lauderdale recently where there was a refusal

[00:29:27] Speaker 05:
at Spirit Airlines for pilots to accept open time, and it caused 20,000 passengers to be grounded.

[00:29:35] Speaker 05:
And the court had no problem in saying all these courts have said the same thing.

[00:29:40] Speaker 05:
consistently, that what you do is look at the point of whether or not there has been a change in pre-slowdown behavior, a change before the union issued its call to arms.

[00:29:55] Speaker 05:
That's what the status quo is.

[00:29:56] Speaker 05:
The courts have regularly looked to see if there has been a change in behavior that violates to first, which says you are to make and maintain agreements in a manner

[00:30:09] Speaker 05:
that avoids disruption to commerce and to operations arising out of any dispute.

[00:30:16] Speaker 05:
So the Seventh Circuit, the Eleventh Circuit, the most recently the District Court and Court- What was the status quo with respect to blocking?

[00:30:25] Speaker 04:
Okay, the status quo- And where did the district court make a finding with respect to that?

[00:30:30] Speaker 05:
The status quo in that situation was demonstrated vividly by a chart offered by Dr. Lee and Judge Moss actually adopted that chart in his decision.

[00:30:45] Speaker 05:
And what it showed is until the union issued a call to arms,

[00:30:51] Speaker 05:
to stop doing what they had been doing, which was to leave when ready, there was a, what Dr. Lee called a statistically significant change in pilot behavior that he had not observed at such an extreme level in 25 years of testifying in cases like this.

[00:31:14] Speaker 05:
They were obeying the union, and the union threatened them if they would not obey the union.

[00:31:19] Speaker 04:
So you're saying the district court found that, as a matter of regular routine, pilots understood they had to leave when ready?

[00:31:27] Speaker 05:
As a matter of regular?

[00:31:29] Speaker 05:
I can't tell you what pilots understand in their minds.

[00:31:32] Speaker 04:
I can tell you as a matter of- I'm asking you to explain what your argument is on status quo.

[00:31:35] Speaker 04:
What the argument was?

[00:31:37] Speaker 04:
I'm sorry, you're on.

[00:31:38] Speaker 04:
I'm sorry, Judge.

[00:31:38] Speaker 04:
I'm trying to understand what your argument is on status quo, that pilots knew

[00:31:43] Speaker 04:
that they had, you're saying, I'm asking, they had to leave when ready.

[00:31:47] Speaker 04:
And they had no discretion, is what you're saying.

[00:31:50] Speaker 05:
That's not what I'm saying.

[00:31:51] Speaker 05:
OK.

[00:31:51] Speaker 05:
What I'm saying, Your Honor, is that the pilots demonstrably, on a statistically verified basis, left prior to estimated departure time at a marked level, and a demonstrable level, and when the Union

[00:32:10] Speaker 05:
issued its call to arms, the pilot behavior changed by a dramatic percentage, where all of a sudden, instead of normal practice, pre-slowdown, pre-call of arms,

[00:32:26] Speaker 04:
This has nothing... You're skipping around.

[00:32:29] Speaker 04:
What is the normal practice?

[00:32:30] Speaker 04:
The normal practice... That you will always leave when ready.

[00:32:35] Speaker 04:
Is that the normal practice?

[00:32:36] Speaker 05:
No, I didn't say always, Your Honor.

[00:32:38] Speaker 05:
I said that the statistics show... What are the exceptions?

[00:32:41] Speaker 04:
What are the exceptions for always?

[00:32:43] Speaker 04:
It was not... Your Honor, it was not... See, the numbers don't make a... If you want to play the numbers game, they don't make a lot of sense.

[00:32:51] Speaker 04:
unless you know what the exceptions were under the existing practice, to know whether or not those exceptions came into play here.

[00:33:00] Speaker 04:
So I don't understand the numbers.

[00:33:02] Speaker 05:
Well, first of all, with all respect, Judge Edwards, I'm not, in my view, playing the numbers game.

[00:33:08] Speaker 05:
I'm citing to you the kind of evidence that several courts, including the Seventh Circuit and Eleventh Circuit, have relied upon for the last quarter century to determine a change in pilot behavior.

[00:33:19] Speaker 05:
It is not grounded on a requirement in the contract about whether you go early or not.

[00:33:26] Speaker 05:
It is grounded on our time.

[00:33:28] Speaker 04:
All right, so let me put it this way.

[00:33:30] Speaker 04:
In the evidence in the record, the other side introduced evidence that among the things that they took into account were folks sitting in the cockpit, what their time requirements were,

[00:33:45] Speaker 04:
and whether leaving at a certain time would adversely affect them.

[00:33:49] Speaker 04:
Was that taken into account in the figures?

[00:33:51] Speaker 05:
Judge Moss found that to not be credible.

[00:33:54] Speaker 04:
Which was not credible?

[00:33:56] Speaker 05:
That was not an accurate description?

[00:33:58] Speaker 05:
He found that the cause of the change in pilot behavior was exactly traced to the call in arms.

[00:34:05] Speaker 05:
The union didn't just ask, they directed pilots to stop shop, stop helping out purchase, stop your normal behavior.

[00:34:15] Speaker 05:
to to to boot which is to block out only on time these were changes in behavior your honor this is the change in status quo that the courts all courts have recognized under section two first of the railway labor act and it's in its demonstrable

[00:34:32] Speaker 05:
The explanations offered at trial were rejected by the trial judge as not being credible.

[00:34:38] Speaker 05:
That the cause of the change, first of all, it's pretty plain.

[00:34:43] Speaker 05:
It all started with the call of arms.

[00:34:46] Speaker 05:
So the union says, this is what you must do.

[00:34:49] Speaker 05:
And by the way, we're going to put notice out that you're scabbed if you don't do what we say.

[00:34:55] Speaker 05:
And then they do one other thing, Judge Edwards.

[00:34:58] Speaker 05:
They say, and we want you to do this because we want you to bring that company to its knees at the negotiating table.

[00:35:06] Speaker 04:
No question that you have a call to arms evidence.

[00:35:09] Speaker 04:
So I understand your argument on blocking.

[00:35:12] Speaker 04:
Let's go to the overtime, which I don't understand at all.

[00:35:15] Speaker 04:
All right, if I might.

[00:35:16] Speaker 05:
This is a subject addressed by the Seventh Circuit in United versus Alpha.

[00:35:22] Speaker 05:
It's addressed by the Eleventh Circuit and Delta versus Alpha.

[00:35:27] Speaker 05:
It's addressed just recently in the District Court in Fort Lauderdale and Spirit versus Alpha.

[00:35:34] Speaker 05:
Here's what they do.

[00:35:35] Speaker 05:
The airlines have a system whereby a certain percentage of their flights are covered.

[00:35:42] Speaker 05:
by what they call open-time flying.

[00:35:44] Speaker 05:
The unions like it.

[00:35:45] Speaker 05:
They bargain for it because they get premium pet.

[00:35:48] Speaker 05:
The airlines staff their operations accordingly.

[00:35:51] Speaker 05:
This is all discussed in the 11th Circuit opinion, and I recommend the decision to you.

[00:35:56] Speaker 05:
But what they say is you have a status quo that involves an arrangement whereby there's a normal pattern not required pilot by pilot.

[00:36:07] Speaker 05:
The courts have addressed this.

[00:36:09] Speaker 05:
But there is a pattern by which a certain percentage of the flights are picked up in overtime.

[00:36:14] Speaker 04:
You know in those cases that we have situations that were the same as the one here which was the companies changed what they were offering in terms of overtime.

[00:36:24] Speaker 04:
I mean the evidence is very strong here.

[00:36:26] Speaker 04:
You can't use the numbers

[00:36:29] Speaker 04:
to measure the – there are two different scenarios.

[00:36:31] Speaker 04:
The unions argument and evidence here is very compelling that the reason there was a drop – let me tell you the two pieces of evidence that were at least compelling to me when I looked at them.

[00:36:43] Speaker 04:
The reason you had a drop – and it wasn't consistently a drop because it went down, came back up again, and then it wavered.

[00:36:50] Speaker 04:
So there was no consistent drop.

[00:36:52] Speaker 04:
But the problem was, starting out, what the company was offering in terms of overtime changed, and it was not desirable.

[00:37:00] Speaker 04:
Now, they aren't required to take bad overtime, and they're not required to take any of it.

[00:37:05] Speaker 04:
So you can't say there's a change in the status quo when what these pilots were being offered changed.

[00:37:10] Speaker 05:
Your Honor, with all due respect, that's a factual argument, made at trial.

[00:37:14] Speaker 05:
Judge Moss found that the explanation offered by the Union was not credible.

[00:37:19] Speaker 04:
And it may be clearly erroneous, because the evidence that was offered by the Union... Let me make sure we're together on this, because this one left me cold.

[00:37:28] Speaker 04:
Judge Moss did not say, as I recall, that the Union was wrong in saying that the offerings of overtime had changed.

[00:37:38] Speaker 04:
He did not say that.

[00:37:40] Speaker 04:
The other thing he did not say was that, indeed, the overtime figures went up and down.

[00:37:46] Speaker 04:
And in one month, which was a high flying month, they did not go down.

[00:37:50] Speaker 04:
So I don't know what you end up with.

[00:37:51] Speaker 04:
Judge Moss did not side with you.

[00:37:54] Speaker 04:
He simply allotted the arguments that were made.

[00:37:57] Speaker 05:
Well, Your Honor, my perspective is on the issue of changing behavior on open time flying.

[00:38:05] Speaker 05:
Judge Moss, first of all, used the same analysis that the 11th Circuit and the 7th Circuit used.

[00:38:10] Speaker 04:
It's irrelevant.

[00:38:11] Speaker 04:
It's not the same circumstances.

[00:38:13] Speaker 05:
Your Honor, I, again, with all respect, the Union openly told the pilots to stop picking up open time in order to cause delay, disrupt operations, disrupt commerce, and to do so to bring the company to its knees and collect the bargaining.

[00:38:31] Speaker 04:
The problem is you have the numbers that are completely inconsistent with that.

[00:38:34] Speaker 05:
Well, the statistical report, again, with all respect, Your Honor, Dr. Lee's report showed that there was a statistically significant change.

[00:38:46] Speaker 05:
He uses a standard deviation analysis.

[00:38:49] Speaker 05:
All the courts have accepted that as evidence of concerted action to change behavior in order to impose leverage

[00:38:59] Speaker 05:
in collective bargaining during a major dispute.

[00:39:02] Speaker 05:
Your Honor, if I can just say this, from a practical matter, as I have my dialogue with Your Honor, this is a real world situation for the airlines.

[00:39:15] Speaker 05:
What we are talking about is whether or not an airline's operation and U.S.

[00:39:21] Speaker 05:
commerce can, under whatever arguments are being made here, be disrupted.

[00:39:27] Speaker 05:
purposefully and at the call of arms of a union so that the union can achieve what it thinks is leverage and collective bargaining.

[00:39:39] Speaker 05:
And the people who suffer, if the union is allowed to do that and to essentially ignore the restrictions to section two first of the Railway Labor Act, which requires it to make and maintain agreements without that kind of disruption,

[00:39:56] Speaker 05:
Who suffers is, first of all, as Your Honor would well know, the public suffers.

[00:40:02] Speaker 05:
That's the whole purpose of Section 2-1 of the Railway Labor Act.

[00:40:05] Speaker 04:
I'm not doubting your concerns.

[00:40:06] Speaker 04:
I'm trying to understand the case.

[00:40:09] Speaker 04:
And on the overtime, I don't get it at all, because the district court findings simply are not supported as far as I can see.

[00:40:16] Speaker 04:
The blocking, I hear what your argument is.

[00:40:18] Speaker 04:
Suppose this had happened and there was no call to arms.

[00:40:21] Speaker 04:
on the blocking.

[00:40:22] Speaker 04:
That is, in fact the numbers, as you say, went down.

[00:40:26] Speaker 04:
There was no call to arms.

[00:40:29] Speaker 04:
Union officials said nothing.

[00:40:31] Speaker 04:
Would the case be different?

[00:40:34] Speaker 05:
First of all, actually the case law says the union, even if it doesn't instigate the slowdown, has an absolute obligation to take effective steps to stop it.

[00:40:46] Speaker 05:
So if it were instigated by a lump group, this is directly in the seventh circuit opinion.

[00:40:53] Speaker 04:
So you're saying if the facts in this case were blocking, there are no rules with regard to when you have to leave other than on time.

[00:41:01] Speaker 04:
The union has made no call to arms.

[00:41:05] Speaker 04:
They've instigated nothing.

[00:41:07] Speaker 04:
They've said nothing.

[00:41:09] Speaker 04:
They've called no action, but the numbers start changing.

[00:41:13] Speaker 04:
You could get an injunction?

[00:41:15] Speaker 05:
First of all, Your Honor, obviously that's not this case.

[00:41:18] Speaker 05:
I understand it's not this case.

[00:41:22] Speaker 05:
It's a hypothetical.

[00:41:24] Speaker 05:
Tell me, could you get an injunction?

[00:41:26] Speaker 05:
The two circuits have said yes because it is their interpretation of two firsts.

[00:41:32] Speaker 05:
that the union has, as the certified representative, an obligation to take effective steps to stop an illegal slowdown disrupting operations.

[00:41:44] Speaker 05:
I don't know what you mean by illegal.

[00:41:46] Speaker 04:
That's the problem we keep going around.

[00:41:47] Speaker 04:
There's no requirement that you leave

[00:41:50] Speaker 04:
in a certain way.

[00:41:52] Speaker 04:
The company has no rules.

[00:41:53] Speaker 04:
The federal regs certainly don't require it.

[00:41:55] Speaker 04:
The pilots have discretion.

[00:41:57] Speaker 04:
That's where your case is.

[00:42:01] Speaker 05:
There are no requirements.

[00:42:04] Speaker 05:
With all due respect, Judge Edwards, I think that is not the interpretation, that is not the rule that has developed over the last quarter century in the cases.

[00:42:13] Speaker 05:
They do not require

[00:42:15] Speaker 05:
that the behavior that we're focused on be required by a rule.

[00:42:21] Speaker 05:
That's just something being made up right now in this case.

[00:42:23] Speaker 04:
You're missing my point, but I won't waste your time.

[00:42:25] Speaker 05:
But Your Honor, with all respect, I think it is important for the panel to understand that the issue here, including the open time issue, which has been addressed in all the other prior cases,

[00:42:42] Speaker 05:
does involve a situation where, in this case, the union was telling the pilots to change their pre-slowdown behavior and telling them exactly why, so that you will get it.

[00:42:55] Speaker 04:
Okay, you made that point.

[00:42:56] Speaker 04:
What about on the last category?

[00:42:59] Speaker 02:
When you get to that last category, can you clear something up for me with respect to the overtime?

[00:43:05] Speaker 02:
I guess the counter-argument is that

[00:43:10] Speaker 02:
that there was really no change.

[00:43:13] Speaker 02:
The Section 6 notice came in February of 2016, and there really was no change until September.

[00:43:21] Speaker 02:
But I don't know whether it's disputed that there was a change that occurred from September on, but the statistics indicate there was a dramatic change.

[00:43:32] Speaker 02:
So the only question was whether the union was responsible

[00:43:36] Speaker 02:
for that change, which is a factual question that Judge Moss resolved against the union and said, yes, they were responsible.

[00:43:45] Speaker 05:
Yes, that's correct, Your Honor.

[00:43:46] Speaker 05:
And when Judge Moss did that, he pointed out that when the Section 6 notice

[00:43:51] Speaker 05:
is served, it's not necessarily an automatic start button for all activity.

[00:43:57] Speaker 05:
The union intensified its communication plan when the Section 6 notice was served.

[00:44:05] Speaker 05:
And you watch the intensification of the communications, and then you watch the intensification of the impact on the operation and the change in pilot behavior, and he says there's no, he found as a matter of credibility of the witnesses and the evidence that

[00:44:20] Speaker 05:
Therefore, there can be an intensification of the problem sometime after the Section 6 notice.

[00:44:28] Speaker 05:
Okay, thank you.

[00:44:30] Speaker 04:
In further answer to that question, I will have to go back and look at the numbers again.

[00:44:33] Speaker 04:
My recollection is it's an exaggeration to say there was a dramatic change in the overtime post-September.

[00:44:41] Speaker 04:
It went up and down and went back down again in November.

[00:44:44] Speaker 04:
It wasn't consistent.

[00:44:45] Speaker 04:
There was no straight line the wrong way.

[00:44:47] Speaker 04:
You're not telling the truth about it.

[00:44:51] Speaker 04:
The figures, there was not a consistently dramatic change post September.

[00:44:57] Speaker 04:
That's not correct.

[00:44:59] Speaker 04:
They went up and down and in November they went the wrong way, inconsistent with your case.

[00:45:07] Speaker 05:
The changes were them.

[00:45:08] Speaker 05:
I can't argue back and forth on the subject other than saying it was there wasn't expert counsel.

[00:45:15] Speaker 04:
Wait, this is an important fact.

[00:45:16] Speaker 04:
You said the judge Randolph, right?

[00:45:18] Speaker 04:
There was a dramatic, consistent, dramatic change.

[00:45:21] Speaker 04:
That's not correct.

[00:45:23] Speaker 05:
That's what was demonstrated by Dr. Lee's expert report.

[00:45:26] Speaker 05:
What he does, he's a recognized expert on the airline industry and statistics, and he's a PhD in economics.

[00:45:33] Speaker 05:
And what he does is a study.

[00:45:35] Speaker 05:
He, first of all, does a regression analysis to rule out other factors.

[00:45:40] Speaker 05:
And then he concludes on a standard deviation basis that there is, in fact, what he calls a statistically significant change.

[00:45:50] Speaker 04:
And what did he say about the change in the off-grade?

[00:45:53] Speaker 04:
That is the overtime that was being offered.

[00:45:55] Speaker 04:
It went down dramatically and it was different, right?

[00:45:58] Speaker 05:
Your Honor, you'll see in the opinion, he did a regression analysis to control for that factor and every other factor.

[00:46:06] Speaker 05:
The judge found his testimony to be credible.

[00:46:10] Speaker 05:
And it was not rebutted at trial by anything offered by the union.

[00:46:18] Speaker 05:
Again, I'd like to stress that, if I could, just to conclude, while we quibble over some of this, the question that is in front of us is, again, when the two parties are undoubtedly involved in what the courts have called a major dispute over the negotiation of a collective bargaining agreement,

[00:46:43] Speaker 05:
May a union do what this union did, which is to issue a call to arms telling pilots to change their behavior in order to disrupt commerce and operations for the purpose of bringing the carrier to its knees and collect the bargain.

[00:47:01] Speaker 05:
And under two firsts, Congress has said it may not do so.

[00:47:06] Speaker 05:
It may not take action in the making or maintaining of agreements.

[00:47:11] Speaker 05:
designed to disrupt operation or commerce.

[00:47:15] Speaker 05:
Thank you very much.

[00:47:15] Speaker 04:
Let me ask you one thing, Counsel.

[00:47:17] Speaker 04:
If the company – I'm going to ask you the same thing I asked the other side.

[00:47:19] Speaker 04:
If the company during this period had said there's a new policy on blocking, here's what you have to do, is that major or minor dispute?

[00:47:28] Speaker 05:
Well, that's – Your Honor, that's Shoreline, that's Conrail.

[00:47:32] Speaker 05:
That's a different situation.

[00:47:33] Speaker 05:
When the carrier

[00:47:36] Speaker 05:
purports to change and into the status quo and issue you think it's major well your honor under under uh... under first of all is it's not it's not a black if i can please i know i i i know the answer when a carrier takes action to change a term of employment uh... it is either permitted by a implied or expressed term of the contract that's applicable major or minor

[00:48:05] Speaker 05:
Your honor, it depends.

[00:48:06] Speaker 05:
on what is in the collective bargaining agreement.

[00:48:09] Speaker 05:
Sometimes what employers do are permitted.

[00:48:13] Speaker 05:
Under the terms of a Conrail, under the terms of a collective bargaining agreement, Conrail announces it's going to start a drug test.

[00:48:20] Speaker 05:
And the Supreme Court eventually says Conrail has an arguably justified reason for doing so.

[00:48:27] Speaker 05:
Go to arbitration.

[00:48:28] Speaker 05:
It might be a minor dispute.

[00:48:30] Speaker 05:
On the other hand, if Conrail's explanation were being frivolous, then it would be a major dispute.

[00:48:35] Speaker 05:
That's the test.

[00:48:37] Speaker 05:
It was discussed in True Line.

[00:48:38] Speaker 02:
It was discussed in Conrail by the Supreme Court.

[00:48:45] Speaker 02:
First, whether it's major or minor?

[00:48:49] Speaker 05:
Well, that's an excellent question, Your Honor.

[00:48:51] Speaker 05:
In this case, it's been assumed that it should be that a two-first violation arises out of a major dispute.

[00:49:00] Speaker 05:
And in most cases, that's what happens because it occurs during collective bargaining.

[00:49:05] Speaker 05:
But there are persuasive cases that have said even if the slowdown arises out of a minor dispute,

[00:49:14] Speaker 05:
even if it would still be a violation of two firsts.

[00:49:18] Speaker 05:
There's an excellent discussion of that subject in the Seventh Circuit opinion, United versus ALPA.

[00:49:26] Speaker 05:
And if you look at the district court opinion, Judge Lefkow, her opinion was adopted by the Seventh Circuit.

[00:49:33] Speaker 05:
And she correctly said, actually, it doesn't matter.

[00:49:37] Speaker 05:
The union cannot do a call to arms and disrupt operations to try to pressure the carrier, whether it's a major dispute or a minor dispute.

[00:49:47] Speaker 05:
It's just that most cases come up in a major dispute, but to first says, make or maintain agreements.

[00:49:54] Speaker 05:
without disruption, not just make.

[00:49:56] Speaker 05:
I would also recommend, Your Honor, the cases we cited in the Second Circuit and the Third Circuit, who agree with Judge Lefkow, and the Seventh Circuit.

[00:50:05] Speaker 05:
That's Long Island Railroad and SEPTA.

[00:50:09] Speaker 05:
In both those cases, they approved section two first injunctions, even though there was an underlying minor dispute that was going to be sent to arbitration.

[00:50:18] Speaker 03:
Thank you.

[00:50:18] Speaker 03:
Thank you very much.

[00:50:19] Speaker 03:
We have your argument.

[00:50:20] Speaker 01:
Mr. Gleason, we'll give you back three minutes.

[00:50:24] Speaker 01:
Thank you, and I'll try not to use the entire three.

[00:50:27] Speaker 01:
I know I used the substantial amount before, but I really wanted to come back up to discuss with your honors or the cases that Mr. Siegel cited, sorry, the cases that Mr. Siegel cited really, they came up in a different context than this.

[00:50:41] Speaker 01:
In the cases when the,

[00:50:42] Speaker 01:
United Cases, for instance, that was a Section 8 North LaGuardia Act, Clean Hands case.

[00:50:48] Speaker 01:
It was Section 8, the second prong as well, that, you know, was it the least restrictive means in order to affect the result that the courts were seeking.

[00:50:57] Speaker 01:
That's not a situation where there was a dispute as to what the status quo was.

[00:51:03] Speaker 01:
That's markedly different than what we have here.

[00:51:05] Speaker 01:
We've disputed quite vigorously that the Judge Moss did not make findings of any section two first status quo practice that arises that could be deemed to be the status quo.

[00:51:24] Speaker 01:
And so I would commend and then ask that Your Honor make sure I'm right.

[00:51:29] Speaker 01:
I think I am.

[00:51:30] Speaker 01:
I don't think that those cases arose within the context in which we're here today.

[00:51:35] Speaker 01:
Mr. Siegel, I know it was going down a path about major and minor disputes as well in terms of calls to arms and slowdowns and all that.

[00:51:47] Speaker 01:
I would also ask, Your Honors, take a look at the six circuits, what I call, I guess the circuit does too, the ABEX I case.

[00:51:54] Speaker 01:
I would ask you to read that.

[00:51:58] Speaker 01:
That case arose

[00:51:59] Speaker 01:
not during the Section 6 period.

[00:52:02] Speaker 01:
There was a more recent decision, oh my goodness, it was, I think, decided Election Day a year, maybe two years ago, and also by Judge Black in Cincinnati, also within the Sixth Circuit, of course, dismissing claims of violations of Section 2 First status quo.

[00:52:22] Speaker 01:
Again, I just think that one of the things that comes out of this discussion, this dialogue with Your Honors today is just how impermissible and inappropriate it is to hinge findings, clear proof findings of union participation and calling to arms of a labor dispute.

[00:52:41] Speaker 01:
on statistics.

[00:52:42] Speaker 01:
Unlike the other cases, I don't say that statistics don't have any use.

[00:52:45] Speaker 01:
I don't think the court has done that yet in the analysis.

[00:52:49] Speaker 01:
But unlike the other cases that Mr. Siegel cites, the statistics were designed to substantiate real hard evidence

[00:52:58] Speaker 01:
of violations.

[00:52:59] Speaker 01:
Now, again, the unfortunate situation here is we are fighting and disputing the existence even of a status quo to which they could enjoin.

[00:53:07] Speaker 01:
Elsewhere, that was just conceded.

[00:53:09] Speaker 01:
But to use statistics to try to prove not just clear proof, you need participation to get past Section 6, Norris-LaGuardia Act is very troublesome.

[00:53:17] Speaker 01:
This was a case where the statistics drove the entire analysis, and that was a misapplication of the law.

[00:53:24] Speaker 01:
Your Honor, unless you have any further questions, I would like to thank you, and I think you have your case.

[00:53:28] Speaker 00:
Get it.