UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ATLAS AIR, INC., et al. , Plaintiffs ,

v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al. , Defendants

. Civil Action No. 17-1953 (RDM)

MEMORANDUM OPINION This matter is currently befor e the Court on Plaintiffs’ motionfor a preliminary injunction, Dkt. 5, and Defendant s’ motion to dismiss, Dkt. 51. The case grows out of a labor di spute between Plaintiffs Atlas Air, Inc. and Polar Air Cargo Worldwide, Inc. (collectiv ely “Atlas”) and Defendants Int ernational Brotherhood of Teamsters; International Brothe rhood of Teamsters, Airline Divi sion; and Airline Professionals Association of the Internationa l Brotherhood of Teamsters, Loca l Union No. 1224 (collectively “the Union”). Atlas is an air line that operates cargo and pass enger flights for commercial customers (such as Amazon, DHL , Qantas, Nippon Cargo Airlines, and Hong Kong Air Cargo Carrier) and the U.S. military. I t operates both long-haul, in ternational and domestic flights. The Union is the certified exclu sive bargaining representative of Atlas’s pilots. Atlas and the Union currently operate under a collective bargaining agreement (“CBA”) that took effect on September 8, 2011. That agreement became “amendable” on Septem ber 8, 2016, and the parties have been engaged in contract ne gotiations since earlier that y ear. All agree that those negotiations are governed by the R ailway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. , which2 applies to railroad and airline labor relations. The parties d isagree, however, about almost everything else in this case, inc luding the relevance of the No rris-LaGuardia Act (“NLGA”), 29 U.S.C. § 101 et seq. The RLA distinguishes between t wo types of disputes: “major di sputes,” which arise “out of efforts to form or change a collective bargaining agree ment,” and “minor disputes,” which relate “to the proper m eaning or application of an existi ng agreement.” Air Line Pilots Ass’n, Int’l v. Eastern Air Lines , 869 F.2d 1518, 1524 (D.C. Cir. 1989) (“ Eastern Air Lines II ”). This distinction has important ramifications. In the case of a “major dispute,” the RLA requires the parties to engage in “a le ngthy process of bargaining and m ediation,” and—most significantly for present purposes —it requires the parties “to maintain the status quo” while that lengthy process plays out. Consolidated Rail v. Railway Labor Execs.’ Ass’n , 491 U.S. 299, 302 (1989). The “use of economic force” is not permitted during th is period, and the f ederal district courts are empowered “to enjoi n a violation of the status quo.” Id. at 303. In contrast, in the case of a “minor dispute,” the RL A requires that the parties co nfer and, if necessary, submit to compulsory arbitration to resolve disputes involv ing the interp retation or applic ation of their collective bargaining agreement. Id . That process moves consider ably faster than the major dispute process and operates ag ainst a different background norm: unlike major disputes, the “general”—or categorical—“ statutory obligation . . . to maintai n the status quo” does not extend to minor disputes. Id. at 304. According to Atlas, it is in the m idst of a major dispute with the Union regarding amendment of the CBA, and the U nion has violated its statutory obligation to maintain the status quo during the ongoing contract nego tiations. Atlas argues, inparticular, that the Union has orchestrated a concerted slow down of flight operations in an ef fort to generate economic3 leverage in the ongoing contract negotiations. It contends, fo r example, that the Union has encouraged Atlas’s pilots to mor e frequently call in sick on sh ort notice, to more frequently decline to fly because of fatigue, to refuse to volunteer for o pen flight assignments, and to delay flight departures by “blocki ng out on time.” Although Atlas ar gues that the RLA does not require proof of irrepa rable injury to sust ain the issuance of a status quo injunction, it also maintains that it will suffer irreparable damage to its reputat ion and business if t he slowdown is allowed to continue during the peak shipping season between Tha nksgiving and the end of the
year. The Union, in contrast, contends that the present dispute is go verned by the existing CBA and thus constitutes a minor dispute, which does not demand pre servation of t he status quo. It also argues, however, that Atlas is wrong and that it has not e ncouraged Union members to engage in a slowdown. Rather, a ccording to the Union, Atlas’s woes are the result of the company’s rapid growth and poor management, an increased focus on preventing unsafe flying conditions, and the Union’s desire t o ensure that Atlas abides by its existing contractual obligations. Because the Union, a s a result, views the presentdispute as no more than a gardenvariety disagreement over what is allowed under the CBA, it ass erts that the status quo requirement of the RLA is inappl icable and that, for this and o ther reasons, the NLGA strips the Court of jurisdiction to issue an injunction. Finally, the Uni on argues that the injunction that Atlas seeks would run afoul of the First Amendment. As explained below, the Court conc ludes that it has jurisdictio n to consider Atlas’s motion for a preliminary injuncti on. The Court further conclud es, moreover, that Atlas has carried its burden of demonstrat ing that it is likely to succee d on the merits; that, to the extent required to do so, it has established that it will likely suffe r irreparable injury in the absence of a4 preliminary injunction; that th e Union will not suffer any coun tervailing injury if such an injunction is issued; and that t he public interest tips in favo r of issuing a preliminary injunction. The scope of the preliminary injunction, however, presents a mo re difficult question. All agree that airline pilots should not fly s ick or fatigued, thatnot every flight can or should block out before its scheduled departu re time, and that pilots cannotbe forced to volunteer for open flights. It is difficult, if no t impossible, moreover, for the Union, Atlas, or the C ourt to determine whether a particular pilot coul d have provided earlier notice b efore calling in sick, whether a particular pilot is too tired t o fly safely, or whether a pilot legitimately wanted to spend more time with her family and thus de cided not to volunteer for an o pen flight for reasons wholly unrelated to a slowdown. What must stop, however, are efforts by the Union to tie activity of this or any similar type to the c ollective bargaining process and to encourage pilots to change their behavior in light of the ongoing labor dispute.
I. STATUTORY BACKGROUND A. Railway Labor Act Congress has long sought to “minimi z[e] interrup tions in the Na tion’s transportation services by strikes a nd labor disputes.” Int’l Ass’n of Machinists v. Central Airlines , 372 U.S. 682, 687 (1963). These efforts have resulted in “successive at tempts to establish effective machinery to resolve disputes not only as to wages, hours, and working conditions, . . . but also as to the interpretation and app lication of existing contracts. ” Id . Congress’s first attempt was the Transportation Act of 1920, which soon drew the ire of bothlabor and management for being toothless and allowing the circumvention of rulings made by the administrative agency the act created. Id

. In response, Congress enacted t he Railway Labor Act of 1926, an d amended it in 1934.
Id . at 688. This framework was more successful. Id . Unlike agreements subj ect to the National5 Labor Relations Act, it made co llective bargaining agreements i n covered transpo rtation sectors perpetual; absent change through the prescribed statutory mecha nisms, a CBA subject to the RLA never expires. See Katherine Van Wezel Stone, Labor Relations on the Airlines: The Railway Labor Act in the Era of Deregulation , 42 Stan. L. Rev. 1485, 1495–96 (1990) [hereinafter Labor Relations on the Airlines ]; see also 45 U.S.C. § 152, Seventh; Bhd. of Ry. & S.S. Clerks v. Florida E. Coast Ry. , 384 U.S. 238, 243 (1966). The R LA, after the 1934 amendments, also created two m ethods for resolving conflicts be tween labor and management, and enlisted the courts in enforcing the statutory scheme. Air Lines Pilots Ass’n, Int’l v. Eastern
Air Lines , 863 F.2d 891, 895 (D.C. Cir. 1988) (“ Eastern Air Lines I ”). The procedure employed to resol ve a conflict depends on whether the dispute is “major” or “minor” in nature. For the f ormer, Section 6 of the RLA cre ates a process “described by the Supreme Court as ‘almost interminable.’” Id . (quoting Detroit & Toledo Shore Line R.R. v. United Transp. Union , 396 U.S. 142, 148 (1969) (“ Shore Line ”)); 45 U.S.C. §§ 181, 182 (applying Section 6 to the airline industry). First, the parti es must undertake a period of negotiation. See Eastern Air Lines I, 863 F.2d at 895. If that fails, the disagreement proceeds to the National Mediation Board (“N MB”), an administrative agency created by the RLA. Id . The NMB attempts mediation, or, if th e parties consent, conducts vo luntary arbitration. Id. In the event arbitration is declined a nd mediation fails, the dispute “then may be subjec t to presidential intervention to ensure adjustment.” Id . During this process of negotiation and mediation, Section 2, First and Section 6 of the RLA prevent either party from altering the “status quo,” and “either party is entitled to an injunction prohibiting any chan ges in ‘rates of pay, rules, or working conditions.’” Id . (quoting 45 U.S.C. § 156). Only aft er these steps are exhaus ted and a mandatory cooling-off period has elapsed may the parties resort to economic self-help, such as a6 strike or lockout. Id . This dictate to maintain pre sent conditions is commonly know n as the “status quo obligation,” and an inj unction to enforce it as a “ status quo injunction.” The procedures governing major disputes are “purposely long and drawn out, based on the hope that reason and practical considerations will provide in time an agreement that resolves the disputes.” Florida E. Coast Ry. , 384 U.S. at 246. Importantly, because a CBA governed by the RLA never expires, these pr ocedures apply any time a party seeks to negotiate a new CBA. The party seeking amendment m ust give notice under Section 6 of the RLA and then follow the procedures described above. See 45 U.S.C. § 156. In the airline i ndustry, most CBAs further include a temporal restricti on on when Section 6 notice can fir st be given. See, e.g. , Ass’n of Flight Attendants v. United Airlines , 71 F.3d 915, 917 (D.C. Cir. 1995); IBT/HERE Emp. Representatives’ Council v. Gate Gourmet Div. Ams. , 402 F. Supp. 2d 289, 290 (D.D.C. 2005) (“ Gate Gourmet ”). The date on which the parties are allowed to formally init iate renegotiation of the CBA is referred to as the “amendable date.” By contrast, when labor and manag ement cannot resolve a minor d ispute through negotiation, the RLA mandates that the parties submit the confl ict to a board for binding arbitration. See Eastern Air Lines I, 863 F.2d at 895; see also 45 U.S.C. § 184 (“The disputes between an employee or group of emp loyees and a carrier or carr iers by air growing out of grievances, or out of the inter pretation or application of agre ements concerning rates of pay, rules, or working conditions . . . m ay be referred by petition of the parties or by e ither party to an appropriate adjustment board.” ). When Congress extended the RL A to airlines in 1936, it tasked companies and unions with establi shing their own arbitration bo ards until such time as the NMB deemed the establishment of a pe rmanent national board for airl ines necessary. Central Airlines , 372 U.S. at 685–86; see also 45 U.S.C. § 184. The arbitration boards created by labor and7 management continue to be employed today, and are known as “sys tem boards,” Central
Airlines , 372 U.S. at 690, or, in the case of Atlas and the Union, a “S ystem Board of Adjustment,” Dkt. 51-1 at 6. Most relevant to the present case , “the arbitration board’s jurisdiction over minor disputes is exclusive; the courts do no t have jurisdiction to issue status quo injunctions.” Eastern Air Lines I, 863 F.2d at 895–96. As a result, eac h party “is free to act under its interpretation of the co llective bargaining agreement until the arbitrator rules otherwise.” 1 Eastern Air Lines II, 869 F.2d at 1520–21.
B. Norris-LaGuardia Act This case also involves a “labor dispute” as d efined by the Nor ris-LaGuardia Act, 29 U.S.C. § 101 et seq . Congress enacted the NLGA t o curtail “the growing tendency o f federal courts to enjoin strikes by narro wly construing the Clayton Act ’s labor exemption from the Sherman Act’s prohibition againstconspiracies to restrain trad e.” Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Ass’n , 457 U.S. 702, 708 (1982). Among other things, the NLGA states that in any “c ontroversy concerning terms or conditions of employment, or concerning the association or representati on of persons in negotiating, fixing , maintaining, changing, or seeking to arrange terms or conditions of employment,” 29 U.S.C. § 113, “[n]o court of the United States . . . shall have jurisdiction to i ssue any restraining order or temporary or perma nent injunction . . . except in a strict conformity w ith the provisions of this chapt er; nor shall any such restraining order or temporary or permanent injunction be issued contrary t o the public policy declared in

1 A “narrow exception to this rule” permits a district court to “exercise equitable power” to issue a minor dispute injunction when “ necessary to preserve the arbi trator’s ability to decide the dispute.” Eastern Air Lines II, 869 F.2d at 1520–21 n.2. Because unions may not “make a minor dispute the subject of a strike,” Eastern Air Lines I , 863 F.2d at 896, courts may also enjoin minor dispute strikes and, in doing so, may “condition t he granting of [the] strike injunction on a requirement that the employer maintain the stat us quo pending . . . resolution of” a minor dispute, Consolidated Rail , 491 U.S. at 304.8 this chapter,” 29 U.S.C. § 101. S ection 4 of the NLGA enumerat es the specific acts that courts lack jurisdiction to enjoin, whi ch include “[c]easing or refusi ng to perform any work.” 29 U.S.C. § 104. The NLGA also contains a number of additional jurisdictional re straints on the judiciary’s authority to issue labor injunctions. Most relevan t to the present case are those contained in Section 8, which states: No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which i s involved in the labor dispute in question, or who has failed to make every reas onable effort to settle such dispute either by negotiation or with the aid of any avail able governmental machinery of mediation or voluntary arbitration. 29 U.S.C. § 108. Section 8 accordingl y creates two obligations . First, the party seeking a labor injunction must “comply with a ny obligation imposed by law.” Id . Second, unless the moving party has “ma[d]e every reasonable effort to settle the dispute , he is forbidden relief.” Bhd. of R.R. Trainmen, Enter. Lodge, No. 27 v. Toledo, P. & W.R. Co. , 321 U.S. 50, 56–57 (1944)

. “The latter condition is broader thanthe former” and requires that the moving party “go beyond [his legal obligations] and make all reasonable effort” to settle th e dispute. Id . at 57. Although sweeping, this obligati on has limits because the NLGA “cannot be read alone in matters dealing with railway labor disputes.” Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R. , 353 U.S. 30, 40 (1957). Instead, “[t]here must be an accommoda tion of [the NLGA] and the Railway Labor Act so that the obv ious purpose in the enactment of each is preserved.” Id . That accommodation recognizes that the RLA provides “special process es intended to [achieve] compromise” between companies and unions in railway and airline cases, and that the NLGA also applies to the extent it is not inconsistent with the RLA. Id. at 41.9 II. FACTUAL BACKGROUND
A. The Parties Plaintiffs Atlas Air, Inc. and P olar Air Worldwide Cargo, Inc. are global airlines offering cargo and passenger service. D kt. 48 at 2. Both are owned by Atlas Air Worldwide Holdings, Inc., a holding company based in Purchase, New York. Id . at 2–3. Atlas conducts various types of operations. First, it conducts i nternational, long-haul car go and passenger flights using primarily B-747s that are typically scheduled on an ad hoc, poi nt-to-point basis. Dkt. 47 at 2–3. These flights took Atlas’s pilo ts and planes to more than 400 a irports in 100 different countries in the past year. Id. at 2. In addition to transporting time-sensitive products and equipment for customers like Qantas, Catha y Pacific, and Nippon Cargo Airline s, Atlas is the largest provider of commercial, wide-body cargo air lift services for the United States Military Air Mobility Command. Id. at 3. Pilots serving these routes often fly multiple legs over seas rather than returning to a base in the Un ited States between operations. Id. at 4. Because of the lack of centralized bases, staffing these flights requires coordinating crew schedules across multiple flights and continents. Dkt . 48 at 5. Traditionally, these op erations constitute d the lion’s share of Atlas’s business. Dkt. 47 at 3. In recent years, however, the gr owth of online shopping has dra matically increased domestic demand for air freight. Id . Atlas has responded by incr easing its fleet of B-767s, which it uses to operate shorter-h aul, domestic cargo flights f or customers like Amazon and
DHL. Id . Unlike Atlas’s long-haul opera tions, these flights are typic ally scheduled in advance or conducted on a regular schedul e, adding predictability to At las’s operations. Id. at 4. The parties agree that these developm ents have created two separate networks—one international and highly decentralized, the other domestic and more hub-oriented—that operate under a single corporate and union structure using the same pilots. Dkt. 47 at 3; Dkt. 48 at 4–5. In response to10 the increased demand for domes tic cargo operations, Atlas has h ired large numbers of new pilots in recent years. Dkt. 48 at 6. F rom September 2015 to Septemb er 2017, for example, the number of pilots employed by Atlas with less than three years o f experience increased from 36% of all pilots to 51% of all pilots. Dkt. 57-12 at 2. Defendants International Brothe rhood of Teamsters and its Airli ne Division represent the Atlas pilots. Dkt. 31-2 at 3. The Teamsters were certified as the exclusive bargaining representative of the pilots under the RLA on December 22, 2008

. Id. at 4. A local affiliate of the Teamsters—Local Union No. 1224, the third Defendant in this case—has responsibility for day-to-day represent ation of Atlas pilots. Id . at 3–4. Local 1224, in turn, manages the representation of Atlas pilots t hrough a five-person, elected b oard called the Atlas Pilots’ Executive Committee. Id

. B. The Existing Collective Bargaining Agreement After several years of negotiati ons, the current collective bar gaining agreement between Atlas and the Union too k effect on September 8, 2011. Dkt. 47 at 6. Although this opinion refers to the Plaintiffs colle ctively as “Atlas, ” as previouslynoted, they are in f act two separate airlines (Atlas Air and Pola r) owned by a holding company (Atla s Air Worldwide Holdings). In early 2009, the Union, Atlas Air, a nd Polar agreed to negotiate a merged contract that would cover both Atlas Air and Polar pi lots, despite the fact that th e two companies are separate legal entities. Dkt. 31-2 at 4–5. That agreement to negotiate provi ded that, in the event a contract could not be reached, the parties would submit to binding arbitration. Id. at 5. The negotiations over the CBA were fraught, and, by late 2010, the parties concl uded they could not reach an agreement and thus submitted the matter to arbitration. Id . The existing CBA was then fashioned by the arbitration board. Id

.11 That CBA contains several prov isions arguably bearing on the pr esent dispute. First, it prohibited both parties from seek ing to amend or otherwise to c hange the agreement for five years from its effective date. Dkt. 31-1 at 282. Under this p rovision, the agreement became amendable on September 8, 2016, although either party could ser ve notice on the other of intent to seek a change in the agreem ent up to 270 days beforehand. Id . Consistent with the RLA, if no party served such notice, the CBA was to remain in effect. Id

. Second, the CBA restricts the U nion’s ability to employ economi c self-help until authorized to do so under the RLA . Section 26.X states, in ful l: The Union, through its Atlas Air, Inc. Executive Council, agree s that during the term of the Agreement there will not be any complete or partial strikes, picketing, slowdowns, unfair labor practice strikes, refusals to cross pic ket lines, sympathy strikes, work stoppages, secondary boycotts, withholding of services in whole or in part, concerted refusal to work normal overtime, or other cessa tion of work of disturbances economic or otherw ise unless and until the parties ’ rights to self-help mature under the Railway Labor Act, provided, however, that not hing herein shall be construed to limit the Union’s right to engage in otherwise lawful informational picketing. This paragraph shall not alter or limit the Company ’s right, if any, to obtain a court order enjoining such conduct by the Union and[/] or the Crewmembers both collectively a nd individually. Nothing in thi s paragraph shall be construed, however, to limit the rights of the Union or the Atlas Crewmembers to refuse to cross lawful strike picket lines established by or on behalf of pilots represented by any union lawfully certified or recognized pursu ant to the Railway Labor Act. Id. at 204. Third, the CBA provides a mechanism for addressing asserted vio lations by the Union of Section 26.X. Section 20.D provides: In the case of a grievance initiated by the Company (a “Company grievance”), the Company shall submit the Grieva nce to the Union in writing or b y electronic mail. The Company grievance shall conform with the timeliness and for mal requirements set forth in subsection 20.B.1.a, above. The Company may file a grievance only over the interpretation or applic ation of the Agreement. Withi n thirty (30) days of submission of a Company grievanc e, a Union official designated by the Union will meet with the Company’s Vice President of Flight Operations and the Company’s senior official responsible for C rewmember labor relations, or their designees, to discuss the matter. If the grievance cannot be resolved as a re sult of this meeting12 then within thirty (30) days following such meeting, the grievance may be appealed by the Company to the Board by filing a notice of appeal to the Board on or before the thirty-first (31) day following the meeting. Such appeals s hall conform to the requirements set forth in 20.B.3.a., above, except the notice o f appeal shall be filed with a Union official designated by the Union. Id. at 126–27. Finally, the Board to which Secti on 20.D refers is the System B oard of Adjustment established in Sec tion 21 of the CBA. Id. at 130. That section describes in detail the process and timeline for proceeding with arbitration and limits the jurisdi ction of the Board. With respect to the Board’s jurisdiction, the CBA states that it “shall not ext end to any proposed changes in rates of pay, rules or working conditions ” and that “[t]he Board shal l not have any jurisdiction to add to, subtract from, modify or ame nd any of the terms of this Agr eement.” Id . The CBA envisions a process for resolving grievanc es that takes several months. Once the parties conclude they are unable to resolve the grievance among themselves, they may appe al to the Board. Id . at 130–31. At that point, ten days must el apse before the selection of an arbitrator may begin. Id. at 132. The arbitrator sits as the Board ’s third member, and is chosen after the Union and Atlas each select one Board member. Id . Upon selection, the arbitrator must propose dates for a hear ing, and those dates must be within sixty days. Id . After the hearing, the Board must issue its decision within sixty days. Id. at 133. C. Negotiations to Amend the Collective Bargaining Agreement In late 2014, Local 1224 held elect ions for its Atlas Pilots’ E xecutive Committee. Dkt. 48 at 8–9. Captain Robert Kirchner, an employee of Atlas or it s predecessor companies since January 2000, ran for chairman. Id. at 9; Dkt. 31-2 at 2. At some point during the fall of 2014, he had dinner with Captain Jeffre y Carlson, the Senior Vice Pre sident of Flight Operations at Atlas since October 2008. Dkt . 48 at 8; Dkt. 5-3 at 1. At the dinner, Captain Kirchner indicated that he was running on a platform of what he termed “strict con tract compliance.” Dkt. 31-2 at13 15. Captain Kirchner alleges thatCaptain Carlson agreed that such compliance was the proper way forward for the parties, id ., and Captain Carlson testified t hat “contract compliance was the message he sent me. And he asked me how the company felt aboutthat. And like I reflected before, we absolutely support honoring the contract.” Hearing Tr. Day 2 (57:15–17). Captain Kirchner was elected cha irman of the Atlas Pilots’ Exec utive Committee in November 2014. Dkt. 48 at 9. Before taking office, he prepare d a bullet point proposal for Atlas’s upper management to “mitigate the loss of experienced p ilots” in light of what he regarded to be a “large gap in com pensation and retirement” ben efits provided under the Atlas contract and “the trends in t he industry.” Hearing Tr. Day 3 ( 54:10–55:6); Dkt. 58-1 at 2. According to Captain Kirchner, a lthough Atlas’s management “too k” the proposal “as a contract opener,” he explained that he w as not seeking to open negotiati ons prior to the amendable date, which was still over a year a nd a half away. Hearing Tr. Day 3 (55:10–56:4). In any event, all agree that Atlas was not requi red to engage in contract negotiations at the time and that it declined to do so. Hearing Tr. Day 2 (60:15–21). On January 1, 2015, Captain Kirc hner took office as chairman of the Atlas Pilots’ Executive Committee. Dkt. 31-2 at 4. On January 19, 2016, the holding company that owns Atlas and Polar announced its agreement to acquire two addition al airlines, Southern and Florida
West. Id . at 6. The holding company soon a nnounced its intention to me rge Atlas and Southern, while keeping Florida West and P olar as separate entities. Id. at 7. The holding company has since “wound down” Florida West . Dkt. 5-3 at 6. The crewmembe rs of Southern are also represented by the Union and are parties to a collective bargai ning agreement that became amendable on November 6, 2016

. Id

.14 On February 16, 2016, the Union serve d written notice under Sec tion 6 of the RLA on Atlas that it would s eek to modify the collective bargaining ag reement that had been imposed by the arbitration board. Dkt. 31- 2 at 6. Although the amendable date was still months away, the notice was not premature under th e terms of the existing CBA, w hich allowed a party to serve notice of an intent to seek cha nges as early as 270 days before the amendable date. Id . Around the same time, the Union als o sent a Secti on 6 notice to Southe rn. Dkt. 5-3 at 6. According to the Union, at a March 15, 2016 negotiating session, Atlas annou nced that it would no longer engage in standalone negotiations with the Union to amend the A tlas CBA; instead, it would negotiate only a “merged” collect ive bargaining agreement that would cover both Atlas and Southern pilots. Dkt. 31-2 at 7. Atlas took the position thatsuch a merged agreement was required by the existing CBA, while the Union argued that the h olding company, rather than Atlas, had acquired Southern. Id . To the Union, that meant th at only the holding company could seek a merged agreement. Id. Because the holding company had refused to be made a party to the CBA during the negotiations tha t led to the ar bitration tha t created the existing CBA, the Union argued that it could not then invoke that agreement. Id . The Union instead offered to extend the existing CBA while S outhern and Atlas formally merge d, to integrate the Southern pilots into the existing CBA, a nd to sign a separate agreement that would address concerns the Union had regarding the applica tion of the present CBA to the c ompanies’ growing domestic cargo operation. Id . at 8. Atlas and Southern refus ed the Union’s offer. Dkt. 5- 3 at 7; Dkt 31-2
at 10. On April 13, 2016, the Union applied to the NMB for mediation. Dkt. 31-2 at 10. The next day, Atlas filed a grievan ce under the existing CBA allegi ng that the Union had failed to follow procedures for negotiating apost-merger CBA as required by the contract. Id. The Union15 declined to follow the arbitra tion procedure set out by the CBA , alleging that that the contract provisions could not properly be i nvoked given the structure of the acquisition of Southern and the fact that Atlas, rather th an the holding company, was a party to the existing CBA. Id .; Hearing Tr. Day 2 (133:18–134:21). NMB mediation began but was never completed. Dkt. 31- 2 at 10–11. After nearly a year of impasse, Atlas Air and Southern sued the Union in the Southern District of New York to compel arbitration under each company’s existing CBA, which set out a mechanism for cre ating a merged contract. Id. at 11. The Union contends that Atlas’s goal is to force the creation anew CBA through arbitration rather than the major dispute process set forth in the RLA. Id . The latter process would require NMB mediation, and, if such mediation failed, would eventuall y permit the parties to use ec onomic self-help. Id . at 11–12. D. The Alleged Slowdown The Union actions that Atlas alleges constitute an illegal slow down in violation of the RLA’s status quo requirement will be discussed in more detail b elow. A brief introduction to the Union communications and pilot ac tions at issue , however, is he lpful to set the stage. After taking office in Januar y 2015, Captain Kirchner launched an effort to revamp the Union’s program for communicatin g with its member pilots. He m ade it a top priority within the Atlas Pilots’ Executive Committ ee “to better educate the Atlas pilots.” Id. at 19. Among other steps, he instituted periodic Atla s Teamsters Action Messages ( “ATAMs”), which take the style of a radio talk show or podcast, a nd “Atlas Pilots Crew Calls,” which provide an unscripted forum for rank-and-file pilots t o call in to ask Captain Kirchn er and others questions

. Id . at 19–
21. A major theme of the ATAMs and Crew Calls has been to encourage pilots to “Stop Helping Out Purchase,” or “SHOP”—Purchase, New York, being the headquarters of Atlas. Id. at 20. Captain Kirchner and Capta in Mike Griffith, the Executi ve Committee Communications16 Chairman, have urged pilots to “honor the CBA every day and on every flight” and to “hold management accountable.” Dkt. 5-3 at 11 (quoting June 23, 2017 Chairman’s Update & August 31, 2017 ATAM). When a rank and file member of the Union noted during a February 2016 Crew Call, for example, that a ne w contract that treats pilots “fairly” would provide an incentive for them “to go above and beyond to get the job done,” Captain Kirchner responded, “that’s a great point,” and “[r]emember, everybody . . . [w]hen you’re th ere doing your j ob, you’re also at the negotiating table. And ever y time they out-n egotiate you b y getting you to violate the CBA and [by] getting you to do their job f or them, they win at the negotiating table.” Dkt. 28-3 at 11– 12. As the Union’s communication’ s director put it during an A TAM, “the leverage” the Union “needs to go up against” Atlas management will come from member s acting together—in “solidarity”—to strictly compl y with the CBA. Dkt. 5-53 at 20– 21. Or, in the words of yet another ATAM, “[f]ollow the CBA [, a]nd SHOP every chance you ge t when you’re at work, because[] it’s working.” Dkt. 5-18 at 7 (22:22–23:2). One specific aspect of the Union’s SHOP campaign has urged pilo ts to “block out on time,” or “BOOT.” “Blocking out” re fers to the process of rele asing the aircraft’s brake and pushing back to taxi. Dkt. 5-3 at 17. According to Atlas, the estimated departure time for a flight represents the latest time the “flight is expected to block out.” Id . But, if “an aircraft is loaded and otherwise ready to de part,” the pilot may—and hopefu lly will—block out before the estimated departure time in order to improve airline efficiency and to provide a “buffer that helps to ensure” timeliness. Id. at 17–18. Although a pilot needs to obtain authorization from Atlas to block out more than fifteen minutes before the estimated depart ure time, that is not required for the final fifteen-minute wi ndow. Dkt. 31-2 at 47. Under the B OOT campaign, however, the Union has encouraged Atlas pilots to exercise their “right” to wait until the last possible minute17 to block out. As explaine d by the Union in an April 12, 2016 C BA Chat: “BOOT stands for Block Out on Time. And we are not doing this. We are going ea rly, left right, and center. . . . So now, we’re asking everybody—your [Executive Committee] is as king you to not block out early, ever, period. Period, e ver.” Dkt. 5-17 at 6 (18:19–20: 21). According to Atlas, the Union’s SHOP campaign and other Union-l ed efforts have placed significant financial pressure on the company and have upset th e status quo required by the RLA. Using statistical analyses t o support many of its contentions, Atlas points to the following changes in pilot behavior, which it attributes to the Union’s e fforts to exert pressure on the company in the ongoing contract negotiations: First, Atlas argues that pilo ts are calling in sick on short no tice at a higher rate than they did prior to the Section 6 noti ce. Dkt. 5-3 at 7. According t o the company, the Union has instigated this change in pilot behavior in order to exert infl uence on the ongoing CBA negotiations. Second, Atlas alleges that pilots are now calling in fatigued m ore often. Id . at 11–15. Indeed, according to the comp any, since February 2016, when the Union notified Atlas of its intent to negotiate, the average r ate of fatigue calls has near ly tripled. Dkt. 5-103 at 28. Third, Atlas contends that pilo ts are now less likely to volunt eer for what is called “open time flying.” Dkt. 5-3 at 15–16. Open time flying is the prac tice of picking up flights that are scheduled without an assigned cre w, analogous in many ways to o vertime and common in the international, long-haul cargo s cheduling scheme long utilized by Atlas. Id . at 15–16. The CBA does not require pilots to volunt eer for open time, but Atlas s ays it has had more and more trouble filling the spots. Id . at 16. In support of this cont ention, the company points to statistical18 evidence that the proportion of unfilled open time trips each m onth has—at least on average— increased dramatically sin ce February 2016. Dkt. 5-103 at 32. Fourth, Atlas argues that the U nion’s BOOT campaign has resulte d in far fewer departures at the time aircraft are actually loaded and ready t o push back, with pilots instead waiting at the gate until the scheduled departure time. Dkt. 5 -3 at 16–20. Atlas argues that leaving closer to the schedule d departure time ha s reduced its margin for error with respect to later, unexpected delays, especi ally when done in concert with slower taxiing (something Atlas also alleges it has observed). Id . at 19–20. In support of its cont ention that the Union is to blame, Atlas points to statistica l evidence that the percentage of flights leaving before the estimated departure time fell dramatically after February 2016, while the number of flights departing at exactly the estimat ed departure time rose at a cor responding rate. Dkt. 5-103 at 38. Fifth, the company asserts that pi lots have increased the numbe r of maintenance writeups they are making, including de manding that minor issues be c orrected prior to departure rather than flying with open mai ntenance issues that do not aff ect the safety of the aircraft. Dkt.
5-3 at 20–21. Finally, Atlas contends that pi lots have begun refusing to fly because of noncompliance with the CBA’s crew meal provis ions, whereas they previously ac cepted vouchers or other compensation in exchange for waiving compliance. Id . at 21–22. To the extent the CBA arguably permits some of these behaviors, Atlas takes issue with changes in pilot behavior ove r the life of the CBA. See id. The Union, for its part, disputes virtually all of these allegations. Its more specific rejoinders are discussed below , but its counterarguments take t hree general tacks. First, it disputes the statist ical analysis offered by Atlas, and it offe rs its own expert who reaches19 different conclusions. See Dkt. 31-3. Second, it argues that any changes revealed by the data are the result of other causes unr elated to the ongoing CBA negotia tions. It argues, for example, that changing regulations, safety awa reness, and crew compositions h ave led to the increase in fatigue calls, and it offers decl arations from pilots contestin g Atlas’s account of their decisions to call in sick or fatigued. Id .; see also Dkt. 31-2. Similarly, it contends the BOOT campaign is intended to prevent pilots from violating various rules, includ ing Federal Aviation Administration (“FAA”) “regulat ory flight duty time limits and rest requirements.” Dkt. 31-2 at 28. Third, it suggests that any c hanges that can actually be t raced to the Union’s communications are affirmativ ely permitted by the CBA, and thus cannot constitute a violation of the status quo. That is, the U nion is merely requiring that Atlas abide by the existing contract; the SHOP campaign has not sought t o shift the playing field, bu t only to ensure that future negotiations take as their starting point the playing field that was agreed to in the 2011 CBA. E. Resumption of Negotiations and the Present Suit Despite disputes along the way, the parties concluded an agreem ent in June 2017 on a negotiating protocol called the “Negotiation Process to Facilit ate Completion of Collective Bargaining Negotiations,” which l ed to a resumption of formal n egotiations on July 6, 2017. Dkt. 5-3 at 6–7. The lawsuit in t he Southern District of New Y ork seeking to compel the Union to accept binding arbitration as to the contents of the new CBAremains pending, however. On September 25, 2017, Atlas filed the present suit, Dkt. 1, an d simultaneously moved for a preliminary injunction, D kt. 5. The Court held a schedul ing conference on September 29, 2017, and set an expedited schedule for discovery and briefing. Minute Entry (Sept. 29, 2017). The Court held an evidentiary hearing on October 31, November 1 , and November 2, 2017. Minute Entry (Oct. 31, 2017); Mi nute Entry (Nov. 1, 2017); Minu te Entry (Nov. 2, 2017). The parties agreed to offer their direct testimony in declarations, which the witnesses summarized20 and affirmed on the stand. See Dkt. 39 (Rough Tr. at 2:12–4:20). The opposing party was then allowed to cross-examine the w itnesses regard ing both their liv e testimony and their declarations. Where the opposi ng party waived cross-examinatio n, the witnesses were permitted to rest on the writte n declarations alone. Following the evidentiary hearing, the parties submitted post-h earing briefs, Dkt. 49; Dkt. 50, and proposed findings of f act, Dkt. 47; Dkt. 48. The Unionconcurrently filed a motion to dismiss for lack of subject matter jurisdiction. Dkt. 51. Atl as responded on November 14, 2017, Dkt. 52, and the Union filed i ts reply on November 17, 2017, Dkt. 56. All told, although the case remains at a preliminary stage, the record occupies over 5,000 pages. III. ANALYSIS A. Subject Matter Jurisdiction The Court begins, as it must, with the question whether it has subject matter jurisdiction to grant Atlas the re lief that it seeks—that is, an injunction barring the Union from encouraging its members to engage in a slowdown designed to influence the o ngoing contract negotiations. The answer to that question tur ns on the meaning and applicatio n of both the NLGA and the RLA. As noted above, the NLGA wa s enacted to curtail the juris diction of federal courts to issue injunctions aga inst labor unions. See Int’l Ass’n of Machinists v. Street , 367 U.S. 741, 772 (1961). Section 1 of the Act declar es that “[n]o court of the United States . . . shall have jurisdiction to issue any restra ining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in strict c onformity with the provisions of” the NLGA. 29 U.S.C. § 101. Sectio n 4, then, “enumerates speci fic acts that shall not be subject to any restraining order or injun ction,” includi ng “‘[c]easing or refusing to perform any work or to remain in any relation of e mployment’” and “‘[g]iving public ity to the existence of, or the facts involved in, any labor dispute . . . by any method not in volving fraud or violence.’”21 Burlington N. R.R. v. Bhd. of Maint. of Way Emps. , 481 U.S. 429, 437 (1987) (quoting 29 U.S.C. §§ 104(a), 104(e)). At the same time, however, the RLAauthorizes federal courts to enjoin unions and employers from engaging in practices that violate the RLA’s sta tus quo obligation. See
Consolidated Rail , 491 U.S. at 302–03. As the Supreme Court has explained, “[t] he obligation of both parties during a period [fo r which] the[] status quo pr ovision[] is properly invoked is to preserve and [to] maintain unc hanged those actual, objective wo rking conditions and practices, broadly conceived, which were in e ffect prior to the time the p ending dispute arose and which are involved in or relat ed to that dispute.” Shore Line , 396 U.S. at 153. This ob ligation lies at the “heart” of the RLA, Bhd. of R.R. Trainmen v. Jacksonville Terminal Co ., 394 U.S. 369, 377– 78 (1969), and it is “enforceable by whatever appropriate means might be developed on a caseby-case basis,” including injunctive relief, Chicago & N.W. Ry. v. United Transp. Union , 402 U.S. 570, 577 (1971). The evident tension between the sweeping anti-injunction provis ions of the NLGA and the need for injunctive relief as a means of enforcing the RLA has long since been resolved. Over sixty years ago, the Supreme Court declared that “the Norr is-LaGuardia Act cannot be read alone in matters dealing with ra ilway labor disputes” and that “[t]here must be an accommodation of that statute and t he Railway Labor Act so that the obvious purpose in the enactment of each is preserved.” Bhd. of R.R. Trainmen , 353 U.S. at 40. That accommodation, the Court observed, can be f ound in the distinct purposes of th e NLGA and the RLA: the NLGA was enacted to preserve the abi lity of unions to employ the typ e of “economic power” that “is vital to collective bargaining,” while the RLA established alte rnative processes for reaching compromises in the railr oad and airline industries. Id. at 40–41. As a result, w hen the provisions22 of the NLGA and the RLA conflict, “the specific provisions of t he Railway Labor Act take precedence over the more general provisions of the Norris-LaGua rdia Act,” and federal district courts have jurisdiction to issue those injunctive decrees thatare necessary to enforce the requirements of the RLA. Id. at 42; accord Pittsburgh & Lake Erie R.R. Co. v. Ry. Labor
Execs.’ Ass’n , 491 U.S. 490, 513 (1989); Delaware & H. Ry. v. United Transp. Union , 450 F.2d 603, 611 (D.C. Cir. 1971). The Union does not contest this settled law but, rather, argues that the Court is without jurisdiction for two r easons specific to the present conflict. First, it argues that the dispute is a minor one within the meaning of the RLA and that, as result, th e status quo obligation does not apply. Because self-help is genera lly permissible in minor dis putes, and Atlas, in any event, has not initiated an arbit ration regarding the parties’ dispute, th e Union contends that nothing in the RLA conflicts with—or displaces—t he NLGA’s restriction on the C ourt’s jurisdiction. Indeed, the Union continues, because the present dispute is a minor one , the RLA itself specifies that arbitration is Atlas’s exclusive remedy, thereby divesting the Court of jurisdiction. Second, the Union argues that Atlas has fa iled to comply with various proce dural requirements contained in the NLGA; that those procedur al requirements do not conflict wi th the RLA; and that the company’s lack of strict complia nce with those requirements div ests the Court of jurisdiction. The Court will consider each of these contentions in turn.
1. The Parties are Engaged in a Major Dispute The Union devotes much of its argument to the contention that the parties are not engaged in a major dispute and tha t, as a result, the status qu o obligation doe s not apply. A major dispute is one that “arises out of efforts to form or cha nge a collective bargaining agreement.” Eastern Air Lines II , 869 F.2d at 1524. It “concerns cha nges in ‘rates of pay, rul es, or working conditions,’ 45 U.S.C. § 151a(4), and relates to ‘th e formation of [a] collective23 bargaining agreement[] or e fforts to secure [one].’” Nat’l R.R. Passenger Corp. v. Transp. Workers Union of Am. , 373 F.3d 121, 123 (D.C. Cir. 2004) (“ Amtrak ”) (quoting Hawaiian Airlines v. Norris , 512 U.S. 246, 252 (1994)). A minor di spute, in contrast, turns on “the proper meaning or application of an exi sting [collective bargaining] a greement.” Eastern Air Lines II , 869 F.3d at 1524. It “contemplates the existence of a collecti ve bargaining agreement,” Elgin, J. & E. Ry. v. Burley , 325 U.S. 711, 723 (1945), and “may be conclusively resolved b y interpreting the existing agreement,” Consolidated Rail , 491 U.S. at 305. In short, “major disputes seek to create contractual ri ghts, minor disputes t o enforcement them.” Id. at 302. As the plaintiff in this action, A tlas is entitled to some leew ay in how it defines the dispute that it brings to the Court; the starti ng point is the wrong that Atlas contends it is suffering. That wrong, as Atlas desc ribes it, is the Union’s c oncerted effort to change pilot behavior—to SHOP, BOOT and the like—in order to bring economic pressure to bear on the company in the current CBA nego tiations. Because those ongoing contract negotiations indisputably constitute a major dispute, Atlas posits that the alleged slowdown grows out of a major dispute and is, therefore , subject to the RLA’s status qu o obligation. The company, moreover, builds on this star ting point by disavowing any dispu te with the Union—at least for purposes of this case—about the meaning or application of the e xisting CBA. Dkt. 49 at 21 (quoting Elgin , 325 U.S. at 723). It does not, for example, premise its clai m on an allegation that the Union is acting in violati on of the CBA or that the CBA aut horizes the relief that it seeks. Rather, according to Atlas, its c laim is based exclusively on t he status quo obligation contained in the RLA and the contention th at the Union seeks to alter the status quo for purposes of affecting an ongoing major dispute.24 As the Supreme Court has emphasized, there is, of course, “a danger in leaving the characterization of [a] dispute solely in the hands of one party.” Consolidated Rail , 491 U.S. at 306. If that party’s theory of the case is “insincere” or “fou nded upon . . . insubstantial grounds, . . . honoring [its] characterization” could “undercut” the “th e proper functioning of the [RLA].”
Id. (citation omitted). Here, howev er, Atlas backs up its charact erization of the dispute with substantial evidence that the U nion has encourag ed its pilots t o alter the status quo in order to exert economic leverage in the ongoing contract negotiations. Three examples are sufficient to make the point. First, during a call with m embers on February 2, 2016, days bef ore the Union served its Section 6 notice and after prel iminary negotiations had begun, Captain Kirchner and other members of the Atlas Pilots’ Ex ecutive Committee unambiguously tied the Union’s alleged slowdown to the CBA negotiations . In the words of one member o f the Executive Committee, “the only way we’re going to get t o the next contract is if we stop helping the Company and start helping the Negotiating Comm ittee.” Dkt. 29-1 at 3 (1:12–15). The same member of the Executive Committee also told the member pilots: “The most imp ortant [thing] we can advise everybody on the call today is st op helping the Company. You’r e not a travel agent. You’re not a hotel clerk. You’re not a trans portation service. The minut e we start doing our job and our job only, that will bring more pressure on the Company to stop thei r behavior, hold them accountable, and help our Negotiating Committee.” Id. at 4 (2:8–16). To this, he added: “Everything we are asking you to do moving forward is counterin tuitive to operating our business. But it’s the only wa y that our negotiators are going to have the leverage as we keep the pressure on, stopping . . . help ing the Company.” Id . at 10 (8:3–8). Captain Kirchner echoed this point, telling members: “When you’re out there doing your job, you’re also at the25 negotiating table. And every t ime they out-negotiate you by ge tting you to violate the CBA and getting you to do their job for the m, they win at the negotiati ng table.” Id. at 12 (10:15–20). Second, in late June 2016, a Union l eader began an ATAM by info rming members that the Union was approaching “the most critical time yet for our g roup. That time is the approach of the amendable date of our current Collective Bargaining Agre ement, or the CBA. And while the vast majority of you have s hown our particular giant how we can SHOP and BOOT and even buckle down and say, first you pay me, there are still some oth ers who just don’t seem to get it.” Dkt. 5-24 at 2 (1:20–2:6). During t hat same ATAM, he added: As of the recording of this ATAM, there are no future meetings scheduled with the management in Purchase for continued negotiation of our next CB A. Time will tell, but we are in for a long fight for a fair contract. But believe me, it will be worth it. Very worth it, ind eed. Your [Executive Committee] a lso wishes to remind you that your adherence to the [ex isting] CBA and all the thing s each and every one of you are doing daily are having atremendous affect and it’s working. Id . at 3 (7:3–13). Third, taking a more recent example, a June 23, 2017 Chairman’s Update once again tied the Union activity that Atlas seeks to enjoin to the ongoing co ntract negotiations. In that communication, Captain Kirchner wrote: Finally, let me talk about the company’s strategy of trying to wear you out. Atlas Executives believe that if they delay a new CBA long enough, yo u will lose your interest and your resolve and start violating the CBA, cutting corners and resign yourselves to the status quo and abandon our quest for an indus try-leading CBA. This cannot be the case! YOU must SHOP, BOOT and push back on their tactics harder than ever as we are starting to get the movement we desi re. We are getting into the busy season during the second half of the year and it is now more important than ever to stay strong with your SOLIDARITY. YOU must not onl y honor the CBA every day and on every flight, but also hold management acc ountable. Dkt. 5-66 at 4. Many other communications in the record sound the same theme: Union members should strictly apply the ex isting CBA, should not do anything more than is required, should stop26 helping the company, and shoul d not block out early—all for the purpose of providing Union negotiators with added leverag e in the ongoing contract negotiations. The Court, accordingly, finds that the Union and Atlas ar e involved in what is undeniab ly a major dispute—that is, negotiations over changing the CBA ; that Atlas is not seeking t o enforce any provision of the existing CBA in this case; and tha t the actions that Atlas does challenge are directed at the ongoing CBA negotiations. Although the mere fact that a collec tive bargaining agreement has expired and the parties are enga ged in contract negotiations do es not “automatically” render every dispute between the com pany and the union a major one, Eastern Air Lines I, 863 F.2d at 899, the status quo obligation does extend to strikes, slowdown s, and similar tactics employed to exert economic pressure on any suc h major-dispute negotiations, Amtrak , 373 F.3d at 126. Atlas, accordingly, is on firm gr ound in characterizing the pre sent dispute as a major one. The Union disagrees. In its vi ew, this case is controlled by the Supreme Court’s decision
in Consolidated Rail , and, in particular, by the Court’s admonition that “[t]he dis tinguishing feature of” a minor dispute “is that the dispute may be conclus ively resolved by interpreting the existing agreement.” 491 U.S. a t 305. Indeed, according to th e Union, all that is required to avoid characterization of a disput e as major is a “claim [that] is neither obviously insubstantial or frivolous, nor made in bad faith” that the activity at issue is “justified by the terms of the parties’ agreement.” Id . at 310. Here, according to the Union, that condition is sati sfied for two reasons: First, the CBA itself bars the Union from engaging in slowdowns and permits the company to file a grievance if confronte d with such Union action. Second, the CBA can be plausibly construed to authorize the conduc t that Atlas challenges. Eith er of these reasons, the Union argues, make the dispute a mi nor one, divesting the Court of su bject matter jurisdiction under Section 204 of the RLA. See Oakey v. Airways Pilots Disability Income Plan , 723 F.3d 227,27 234, 237 (D.C. Cir. 2013) (“Section 2 04 refers to arbitration o f . . . those ‘disputes . . . growing . . . out of the interpretation or application of [existing] a greements;’” and “[t]he statutory language ‘clearly states’ that th e arbitration requirement is j urisdictional.”). The Court is unconvinced. As an initial matter, the Court is unpersuaded by the Union’s reading of Consolidated
Rail . That case dealt with a very di fferent question from the one presented here. In
Consolidated Rail , Conrail announced a un ilateral change in its drug testing pra ctices; while it had previously included drug testing in some periodic and return-from-leave physical examinations, Conrail decide d to include the test in allperiodic and return-from-leave examinations. 491 U.S. at 300. In th at context, the Court gra ppled with the “close” question whether the change in practice constituted a minor dispute—that is, a dispute about the meaning and application the existing agree ment—or a major dispute—that is, a dispute over what was, in effect, an alteration or ame ndment to the agreement. Id . at 301–02. Neither party contested that the dispute was about the meaning of the CBA’s terms; the union ’s argument that the dispute was major relied instead on the pos ition that the company’s int erpretation was “simply not plausible.” Id . at 315–16. 2 Ultimately, the Court held that Conrail’s contention that its new practice was supported by the exi sting contract was not “frivol ous” or “obviously insubstantial” and that, as a result, the disput e was best characterized as a minor one over which the Court lacked jurisdiction. Id . at 320. This case, in contrast, is not about whether Union members may

— in the abstract

— SHOP, BOOT, or call in sick on sho rt notice; whether the CBA pe rmits such conduct; or whether

2 The union’s primary argument, which advocated for the creatio n of a third category of disputes, was rejected by the Court. Consolidated Rail , 491 U.S. at 310.28 the Union’s efforts might implic itly effect an amendment to the CBA. Rather, it is about whether the Union may engage i n a concerted campaign to alter t he status quo (by SHOP-ing, BOOT-ing and the like) in the mid st of what is unmistakably a m ajor dispute (the negotiation of a new CBA) in order to apply ec onomic pressure on the company i n those negotiations. Significantly, the Union has faile d to identify any case holdin g that concerted un ion activity that alters the status quo for the pur pose of exerting economic pres sure on a company engaged in collective bargaining negotiations constitutes a minor dispute. Those cases that have considere d the question, moreover, are un iform in holding that strikes, slowdowns, and similar conduct targeted at an ongoing, major dispute violates the status quo obligation contained in the R LA. In a discussion cited with approval by the D.C. Circuit, the Seventh Circuit explained that “[t]here is no question that the RLA’s status quo requirement is intended to prevent a strike dur ing the cooling-off period” andthat this princip le extends to other conduct that “has the consequences of a strike.” Air Line Pilots Ass’n, In t’l v. United Air Lines , 802 F.2d 886, 906 (7th Cir. 1986) (c ited with approval in Amtrak , 373 F.3d at 126). Thus, as the Seventh Circuit further explai ned, the RLA’s status quo obligat ion prevents “[t]he concerted refusal of overtime, slow[]downs, sit-ins, strikes and other ha rassments by [the union and its members].” Id. (citation omitted). Other courts have extended this same logi c to concerted refusals to fly overtime or t o volunteer for unscheduled open t ime, Delta Air Lines v. Air Line Pilots Ass’n, Int’l , 238 F.3d 1300, 1307–08 (11th Cir. 2001); safety campaigns, United Air Lines v. Int’l Ass’n of Machinists & Aerospace Workers , 243 F.3d 349, 362 (7th Cir. 2001); abusive use of sick leave, Air Line Pilots Ass’n, Int’l , 802 F.2d at 905; increases i n pilot fatigue calls, US Airways v. U.S. Airline Pilots Ass’n , 813 F. Supp. 2d 710, 731 (W.D.N.C. 2011); longer taxi times, id .; increased write-ups of maintenance problems, id. ; and programs “to follow the rules29 strictly,” Long Island R.R. Co. v. Sys. Fed. No. 156 , 368 F.2d 50, 52 (2d Cir. 1966); see also
United Air Lines , 243 F.3d at 366. Under this view of the RLA, the relevant qu estion is whether the Union is orchestrating a s lowdown or similar campaign that “grows out of the major dispute,” Amtrak , 373 F.3d at 126, and that “is designe d to put economic pressure on the carrier,” US Airways , 813 F. Supp. 2d at 730. If so, a court may enjoin the campai gn. The Union suggests that this case is distinguishable from this line of authority because Section 26.X of the Atlas pilots ’ current CBA contains an expre ss prohibition on strikes, slowdowns, and concerted refusal to work normal overtime, and S ection 20.D of the CBA allows the company to file a grievance ov er the interpretation or appl ication of the existing CBA. Dkt. 51-1 at 6–10. According to the Uni on, these provisions show th at “the parties cl early intended to arbitrate ‘slowdown’ disputes and disputes over alleged ‘concerted refusals to work normal overtime’” and, thus, the present dispute is at least arguably covered by the parties’ contract. Id

. at 7. Because the dispute can the refore be resolved by applyin g the existing CBA, the Union continues, the dispute is a minor one. That contention, however, is unconv incing. As an initial matte r, it once again ignores the substance of Atlas’s claim. Atla s’s claim is not that the Unio n is violating the CBA, but rather that it is violating the RLA by engaging in a concerted campaig n to alter the status quo— regardless of whether the CBA a llows or prohibits that conduct. Nor is this a case in which “the conduct giving rise to an alle ged status quo violation is argua bly permitted by the CBA” or which requires interpretation of the CBA. Delta Air Lines , 238 F.3d at 1307 n.17. To the contrary, neither Atlas nor the Union contends that the CBA permits slowdowns. What the Union does argue is that, even i f a slowdown is unlawful under the CBA and the RLA, Atlas can—and therefore must—bring its challenge under the CBA grieva nce procedure.30 That argument, however, conflate s the question whether the disp ute is a major or minor one within the meaning of the RLA with the question whether Atl as has made “every reasonable effort to settle [the] dispute” within the meaning of the NLGA. See 29 U.S.C. § 108. But, as explained in greater detail below , regardless of how the argume nt is framed, it cannot be reconciled with the considered b alance that Congress struck in the status quo provisions of the RLA. Those provisions were enac ted to “to avoi d any interrupti on[s] to commerce or to the operation of any carrier engaged therein,” 45 U.S.C. § 151a(1); “to promote stability in labormanagement relations by providing a comprehensive framework for resolving labor disputes,”
Hawaiian Airlines , 512 U.S. at 252; and “to compel dialogue and concessions” in major disputes, Van Wezel Stone, Labor Relations on the Airlines at 1497–98. Yet, taking the Union’s theory to its logical conclusion, as long as a union can make a plausible argument that, as alleged by the employer, its conduct violates the existing CBA, it can avoid the RLA’s status quo obligation and force the company to pursue it s claims of misconduct throug h the grievance and arbitration process. That would mean, for e xample, that if the Union were to respond to the company’s latest offer regarding wages and terms of employment with a str ike, the dispute would be a minor one given the no-strike clause in the CBA. Indeed, under the U nion’s theory, the same would be true of any slowdown or similar , concerted action. That, howev er, proves too much. Even if the RLA “allows parties to follow th eir own contractually negotiate d procedures for amending their collective bargaining agreements in lieu of the lengthy procedures set forth in the statute,” Air Line Pilots Ass’n v. Alaska Airlines, Inc ., No. C05-0897L, 2005 WL 2898140, at *1 (W.D. Wash. Oct. 28, 2005), it does not permit the parties to jettiso n the statute entirely and to engage in precisely the type of conduct that Congress intended to avoi d, see United Air Lines, 243 F.3d
at 364.31 Finally, in a variation of its m inor dispute argument, the Uni on makes glancing reference to provisions of the existing CBA that, in its view, permit or authorize the conduct that Atlas seeks to enjoin. It argues, for example, that the existing CBA bars pilots from refusing to work “‘normal’ overtime,” giving rise to an inference that pilots ma y refuse to work “unusual overtime.” Dkt. 56 at 10. But that position, once again, misunderstands the nature of Atlas’s claim. Atlas is not arguing that certain pilots were required to work overtime, or to volunteer for open time, under the existing CBA . Nor is it arguing that cert ain pilots violated the CBA by blocking out at the last minut e or by calling in sick or fatigu ed. Rather, it is claiming that the
Union is violating the RLA by encouraging its members to enga ge in a concerted effort to do less—to stop helping out Purchase —in order to obtain leverage i n the ongoing contract negotiations. That claim is not dependent on whether the under lying conduct is p rohibited by the existing CBA but, rather, turns on whether the Union has orches trated a concerted change in the status quo to influen ce the negotiations. See Delta Air Lines , 238 F.3d at 1307–08; cf. Elevator Mfrs.’ Ass’n of New York, Inc. v. Local 1, Int’l Union of Elevator Constructors , 689 F.2d 382, 386 (2d Cir. 1982) (“That the overtim e was designated as volunt ary in the contract does not . . . render the concerted refusal to p erform it any less a strike.”) (citation omitted). The line between major and minor di sputes is not always crystal clear. See Van Wezel Stone, Labor Relations on the Airlines at 1506. Ultimately, however, the Court must make a practical assessment of the nature of the dispute and must eval uate how it fits within the “integrated, harmonious scheme” that Congress enacted. Shore Line , 396 U.S. at 152. Applying that approach here, the answer is —in fact—clear. We know that major disputes arise “out of efforts to form or change . . . co llective bargaining agreement [s],” Eastern Air Lines II , 869 F.2d at 1524, while minor disputes “i nvolve[] a controversy over the interpretation or application of32 [an existing] agreement[],” Amtrak , 373 F.3d at 124 (internal quotation marks omitted). We know that Atlas and the Union are in the midst of negotiating a new CBA and that the Union’s STOP, BOOT, and other efforts ar e intended to improve the Union ’s position in those negotiations. We know that Atlas is not seeking to enforce anyright found in the existing CBA, but, rather, contends that the Union is acting in violation of the RLA. And, we know that that Union (quite obviously) does not c ontend that the CBA prohibits any of the conduct at issue but, rather, merely contends that it provides a mechanism that Atlas could invoke to seek redress. Under these circumstances, the C ourt must conclude that the all eged slowdown “grows out of the major dispute between” the parties, Amtrak , 373 F.3d at 126, and is, therefore, subject to the RLA’s status quo obligation.
2. Plaintiff Has Met the Requirement s of the Norris-LaGuardia Act Alternatively, the Union argues th at, even if the present dispute is a major one, the Court still lacks jurisdiction because A tlas has failed to comply with the procedural requirements contained in Sections 8 and 7(e) of the NLGA. The Court will address each provi sion in turn.

a. Section 8 Section 8 of the Norris-La Guardia Act provides: No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which i s involved in the labor dispute in question, or who has failed to make every reas onable effort to settle such dispute either by negotiation or with the aid of any avail able governmental machinery of mediation or voluntary arbitration. 29 U.S.C. § 108. Actions to enjoin v iolations of the RLA are “ subject to Section 8” of the NLGA because the requirements of that section “further the effe ctuation of” the RLA. Bhd. of
R.R. Trainmen v. Akron & Barberton Belt R.R. Co. , 385 F.2d 581, 613–14 (D.C. Cir. 1967). Section 8 promotes compliance w ith the RLA by ensuring that a p arty “cannot seek an injunction until and unless it has discharged the obligations imposed by the Railway Labor Act.” Id . at 614.33 Section 8 creates two distinct hur dles to seeking injunctive re lief. The first hurdle, known as the “clean hands” requirement, see id. at 613–14, divests the fede ral district courts of jurisdiction to grant injunctive relief “to any complainant who has failed to comply with any obligation imposed by law which i s involved in the labor disput e in question,” 29 U.S.C. § 108. The Union only gestures at the “cl ean hands” requirement in its presentation of the evidence, see,
e.g. , Dkt. 31-2 at 16–17, 19–21, 32–33 (descri bing alleged company violations of CBA), and it does not advance the point in i ts briefs. The Court, according ly, has no basis to f ind that Atlas has failed to “comply with all . . . legal obligations relevant to the dispute,” Rutland Ry. v. Bhd. of Locomotive Eng’rs , 307 F.2d 21, 39 (2d Cir. 1962), and thu s cannot conclude that the company’s “unclean hands” divestthe Court of jurisdiction to i ssue a status quo injunction. The argument that the Union act ually advances implicates Secti on 8’s second hurdle to granting injunctive relief—that , prior to seeki ng an injunction , the movant must make “every reasonable effort” to resolve the dispute by negotiation, media tion, or voluntary arbitration. 29 U.S.C. § 108. That requirement echoes the duty found in the RL A that “both parties . . . make every reasonable effort to settle a dispute, whether it be majo r or minor.” Rutland Ry. , 307 F.2d at 38. Atlas, for its part, does not dispute that it was requi red to make reasonable efforts to resolve the present dispute be fore applying for an injunction, and it contends that it has done all that is required. Dkt. 52 at 18–20. The Union disagrees, argu ing that Atlas has fallen short in a number of ways: it has failed t o take advantage of the CBA’s g rievance and arbitration procedures to raise its slowdow n and concerted refusal to work overtime claims; it has failed to seek to discipline any pilots fo r allegedly abusing the sick le ave and fatigue rules or ordered that the pilots block out early; it has “never shared any evidence s ubstantiating” its claims with the34 Union; and it has not sought the assistance of mediators provid ed by the NMB. Dkt. 51-1 at 15–
17. In applying the NLGA’s “every r easonable effort” requirement, t he Court must once again consider how the NLGA app lies to cases brought under the RLA. Here, however, the tension between the two statute s is less evident, and, indeed, both statutes—at least at times— share a common goal of “encour ag[ing] use of the nonjudicial pr ocesses of negotiation, mediation and arbitration for the a djustment of labor disputes. ” Bhd. of R.R. Trainmen , 321 U.S. at 58–59. The D.C. Circuit has recogn ized that, in most cases, strict enforcement of the NLGA’s “every reasonable effort” requi rement does “not trammel, but . . . rather further[s] the effectuation of the Railway La bor Act, for it ensures complianc e by complainant carrier[s] or union[s,] which cannot seek an injunction until and unless [the y have] discharged the obligations imposed by the Railway Labor Act.” Bhd. of R.R. Trainmen , 385 F.2d at 614. In some cases, however, “the imperatives of the R ailway Labor Act [might] override Section 8” and courts must balance competing interests , “particularly where . . . the publ ic interest [is] involved.” Id. Although “the precise requirements of” the Section 8 obligation “vary from case to case, there are ‘certain minimum ste ps’ that are usually required.” Aircraft Serv. Int’l v. Int’l Bhd. of
Teamsters , 779 F.3d 1069, 1077 (9th Cir. 2015) . In particular: Unfair surprise should be avoided whenever possible. The repre sentatives of management should meet with those of labor. Each side should l isten to the contentions of the other side and each side should explain its position clearly and honestly, but not for as long a time is customary in full-scale bargaining. In short, men of good faith must in good faith get together in a sincere effort to resolve their differences.
Id. (quoting Rutland Ry. , 307 F.2d at 41). This means that, before going to court, a p arty must do more than “discharge hi s legal obligations.” Bhd. of R.R. Trainmen , 321 U.S. at 57. “He must also go beyond [those legal obligat ions] and make all reasonabl e effort, at the least by the35 methods specified if they are available, though none may involv e complying with any legal duty.” Id. This includes “the normal” mode s “for settlement of labor dis putes by the efforts of the parties themselves and the a id of agencies adapted speciall y for the purpose,” including “the aid of governmental machinery” prov ided in the RLA for “mediati on and arbitration.” Id . at 57–
58. In pressing their respective arguments, Atlas and the Union characterize the relevant “dispute” for purposes of Sec tion 8 in very different terms. A ccording to the Atlas, the dispute that it was required to make reas onable efforts to settle befor e bringing this suitwas (and is) the dispute over whether and how t o amend the existing CBA. Dkt. 4 9 at 25–26. It then argues— persuasively—that it has made r easonable efforts to settle thatdispute. Most not ably, all agree that Atlas and the Union reached a “Protocol Agreement” in June of this year, setting forth a process for direct negotiations on a new CBA. Dkt. 5-3 at 6–7; Dkt. 48 at 4. The evidence also shows that those direct ne gotiations are ongoing, Dkt. 48 at 4, and that the Protocol Agreement was greeted by the Union as a st ep forward in the negotiations, Dkt. 28-13 at 4–5 (2:4–3:4). Rather than take on this showi ng of reasonable efforts, the Uni on contends that the relevant dispute can be found in Atla s’s claim that the Union h as orchestrated a slowdown, and it contends that the company could have done more to settle or to avoid that dispute. Dkt. 51-1 at 15–17. It could have filed a grieva nce under the existing CBA, possibly leading to arbitration of the dispute. Id. It could have taken disciplinary action against the pilots alle gedly involved in the slowdown. Id. It could have ordered pilots t o block out early, if possible. Id. And, it could have provided the Union with mor e detail to back up its claim that the Union is orchestrating a slowdown. Id. Although for different reasons, the Court is unpersuaded by eac h of these contentions.36 As an initial matter, the Court c oncludes that Atlas’s characte rization of the relevant dispute is more apt. A s imilar issue arose in United Air Lines, Inc. v. International Ass’n of Machinists and Aerospace Workers , 243 F.3d 349 (7th Cir. 2001). In that case, the parties were engaged in a major dispute invo lving the negotiation of a new c ollective bargaining agreement, and the airline accused the union of staging a slowdown to affe ct the ongoing negotiations. Id. at 353. Invoking Section 8, the union argue d that the district co urt lacked jurisdiction because the airline had “made no virtually no a ttempt to resolve the slowdo wn through negotiations . . . before it filed suit.” Id. at 364. The Seventh Circuit disagreed, explaining: Section 8 requires a party to a labor dispute to “exert every r easonable effort” to settle the labor dispute in question (through negotiation, mediation or arbitration) before seeking to enjoin an action by the other party which rel ates to the dispute. It does not require aparty who is already engaging in good-fai th effort to settle the labor dispute through negotiation, mediation, or arbitration to “exert every reasonable effort” to prevent or end an unlawful strike or work action before seeking judicial relief. Indeed, requiring a carrier to seek a negotiated solution before moving to enjoin an illegal work action would enable uni ons to use such actions to extort concessions fro m the carrier dur ing the negot iation process. Such a result would render the union’s duty under 45 U.S.C. § 152, F irst a nullity, and would run directly contrary to the policy rationales of the RLA ’s status quo provisions.
Id. at 364–65 (emphasis in original). The same holds true here. All concede that Atlas and the Union are engaged in contract ne gotiations that are protected b y the RLA’s status quo obligation. To the extent the Union is enga ged in a slowdown that is target ed at those nego tiations, it is acting in violation of the RLA, a nd requiring that Atlas negoti ate with the Union about that violation of federal law runs counter to the terms and purposes of the RLA. More generally, the Court is als o unconvinced that Atlas’s fail ure to file a grievance under Section 26.X of the existing C BA bars the company from se eking a status quo injunction. As noted above, the D.C. Circuithas recognized that Section 8’ s “every reasonable effort” requirement is not absolute and t hat, at times, “the imperative s of the” RLA and the public37 interest may counsel against s trict application of Section 8. Bhd. of R.R. Trainmen , 385 F.2d at 614. Other courts share that asse ssment. In the words of the Seventh Circuit, “[t]he NorrisLaGuardia Act has never been c onstrued to bar an injunctive rem edy when such relief is necessary to reach important obj ectives of federal labor law.” Air Line Pilots Ass’n , 802 F.2d at 901. Rather, the Court must “weig h the competing equities to d etermine whether applying [S]ection 8’s bar to injunctive relief would serve to further u nderlying purposes of both the RLA and the Norris-LaGuardia Act.” Id. Here, it is difficult to compreh end how the purposes of the fed eral labor laws would be served by precluding Atlas from seek ing judicial intervention until after it files a grievance and starts the process of arbitrati ng its contention that the Unionis engaged in an unlawful slowdown. Simply putting Atlas to that task—and the attendant delay and uncertainty—would add pressure on the company in the ongoing contract negotiation s in contravention of the purpose of the RLA’s status quo obligation. Moreover, one of t wo results would likely follow: either the Union would be permitted to continue to engage in a slowdown while that process unfolded, which would undermine an important protection contain ed in the RLA, or Atlas would be able to obtain an injunction in aid of a rbitration, which wo uld run counter to the NLGA’s aversion to judicial interven tion in ongoing labor disputes. 3 In short, requiring that Atlas jump through additional hoops before obt aining relief from a status quo violation would run counter to the purposes of the RLA and would, a t best, raise the same type of concern under the NLGA raised by the present dispute.

3 It is uncertain whether Atlas w ould be able t o obtain an inju nction in aid of arbitration under the governing D.C. Circuit precedent, which authorizes minor di spute injunctions “only when . . . necessary to preserve the arbit rator’s ability to decide the di spute.” Eastern Air Lines II , 869 F.2d at 1520 n.2.38 Finally, to the extent the Court is required to ba lance the pur poses of Section 8 and the status quo obligation contained i n the RLA, the Court concludes that Atlas has made efforts to resolve the slowdown short of l itigation. It contacted Union o fficers in December 2016 and May 2017 to request that the slowdow n be stopped, and counsel for A tlas made the same request of counsel for the Union in J une 2017. Dkt. 49 at 27. Requiring that Atlas take steps beyond this to discipline pilots for engaging i n the alleged slowdown would re nder the status quo obligation illusory, because “in virtually every case an employer presumab ly could take some such
measures.” United Air Lines, Inc ., 243 F.3d at 363–64. And, requiring tha t Atlas present the Union with its evidence that the U nion is engaged in a slowdownor order its pilots to block out early would do nothing to promote se ttlement. The Union is pre sumably aware of what it is and is not doing, and the BOOT campai gn is just one element of the alleged slowdown. Id. at 417. The Court, accordingly, conclude s that Section 8 of the NLGA do es not present a jurisdictional bar t o the present suit. b. Section 7(e) The Union also briefly argues th at Atlas has failed to comply w ith Section 7(e) of the NLGA because it has not demonstr ated “[t]hat the public officer s charged with the duty to protect complainant’s property are unable or unwilling to furni sh adequate protection.” 4 29 U.S.C. § 107(e). The plain langu age of that provision, however , makes clear that it applies only in cases involving a potential threat to the complainant’s pers on or property. Decisions

4 The Union also contends that A tlas has not complied with Sect ion 7(a) of the NLGA. That provision requires, prior to the i ssuance of a labor injunction , proof that “unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrain ed.” 29 U.S.C. § 107(a). It is uncle ar whether Section 7 (a) applies at all to the present dispute given the problems attendant with applyi ng 7(e), but even assuming it does, the Court’s ultimate conc lusion that a preliminary injunc tion is proper would decide the issue. See Dkt. 51-1 at 13.39 confronting the meaning and sc ope of Section 7(e) support this conclusion. See ABX Air, Inc. v. Int’l Bhd. of Teamsters , No. 16-CV-1096, 2016 WL 7117388, at *3 (S.D. Ohio Dec. 7, 201 6) (“Section 107(e) only ap plies to cases where there is a threat of physical violence.”); Illinois Cent. R.R. Co. v. Bhd. of Maint. of Way Emps. , 79 F. Supp. 3d 846, 854 (N.D. Ill. 2015) (finding Section 7(e) “inappli cable” in a case not presenting the threat of violence); cf. Green v. Obergfell , 121 F.2d 46, 53–54 (D.C. Cir. 1941) (hol ding that Section 7(e ) barred issuance of an injunction where plaintiff faile d to show officers were unable to furnish “adequate protection” against “violence and destructi on of property”). As a result, Section 7(e) does not pose an independent bar to injunctiv e relief in this case.
* * * The Court, accordingly, conclude s that it has jurisdiction to c onsider Atlas’s motion for a preliminary injunction, Dkt. 5, and will deny the Union’s motio n to dismiss for lack of jurisdiction, Dkt. 51. B. Atlas’s Motion for a Preliminary Injunction In the ordinary course, a party s eeking a preliminary injunctio n bears the burden of showing that it “is likely to su cceed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). Courts, moreover, have “freque ntly . . . observed that a prelim inary injunction is an extraordinary and drastic remedy, one that shou ld not be granted unless the m ovant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong , 520 U.S. 968, 972 (D.C. Cir. 1997) (emphasis omitted) (quoting 11A Charles A. W right & Arthur R. Miller, Fed eral Practice and Procedure: Civil § 2948 (2d ed. 1995)). The N LGA and RLA, however, introd uce two twists on the usual rules. First, Section 6 of the N LGA provides that “[n]o office r or member of any association or40 organization, and no association or o rganization participating or interested in a labor dispute, shall be held responsible or li able in any court of the United States for the unlawful acts of individual officers, membe rs, or agents, except upon clear proof of actual participation in, or actual authorization of, such act s, or of ratif ication of such acts after actual knowledge thereof.” 29 U.S.C. § 106 (emphasis added). This standard applies to the Court’s consider ation of whether the Union is responsible for the actions of its members. See Ramsey v. United Mine Workers of
Am. , 401 U.S. 302, 309 (1971). Section 6 “is not addressed to the quantum of evidence required to prove the occurrence of the a lleged ‘unlawful acts.’ It is concerned only with requiring ‘clear proof’ that the person or organiza tion charged actually partici pated in, authorized, or ratified ‘such acts.’” Id. ; see also United Air Lines , 243 F.3d at 366. Second, an injunction under the RLA does not require evidence o f irreparable injury. See
Consolidated Rail , 491 U.S. at 303 (“The district c ourts have subject-matter jur isdiction to enjoin a violation of the status quo pe nding completion of the require d procedures, without the customary showing of irreparable injury.”); see also S. Ry. Co. v. Bhd. of Locomotive Firemen & Enginemen , 337 F.2d 127, 133–34 (D.C. Cir. 1964) (hol ding irreparable in jury showing unnecessary for preliminary inj unction under RLA status quo pro vision); Gate Gourmet , 377 F. Supp. 2d at 59–60 (same). As other courts have done, however, the Court will nonetheless briefly address the irrepara ble injury prong out of an abundanc e of caution. See Davenport v. Int’l Bhd. of Teamsters , 166 F.3d 356, 367 (D.C. Cir. 1999) (ev aluating existence of i rreparable injury); Alton & S. Ry. Co. v. Bhd. of Maint. of Way Emps. , 883 F. Supp. 755, 765 (D.D.C. 1995) (same).
1. Likelihood of Success on the Merits As a first and indispensable ste p, Atlas must demonstrate that it is likely to succeed on the merits of its claim that the Union has violated the RLA’s s tatus quo requirement. See 4541 U.S.C. §§ 152, 156. In order to satisf y the further requiremen ts of the NLGA, moreover, Atlas must also demonstrate with “clear proof” that any likely status quo violations are traceable to the Union’s actions. 29 U.S.C. § 106. The Court addresses in turneach of the alleged violations that Atlas has proffered.

a. Short-Notice Sick Calls Atlas asserts that, since la te 2016, a pattern has emerged of U nion members calling in sick at the last mom ent with far greater frequency than during the preceding three years, Dkt. 5- 103 at 23, and it posits that they h ave done so at the instigat ion of the Union, Dkt. 5-2 at 25. Calling in sick on short notice—th at is, on the day the pilot i s scheduled to fly—is more likely to disrupt company operations than c alling in one or more days ahe ad of time, because a replacement crew member is ofte n not immediately available. Dkt. 5-3 at 7–8; Hearing Tr. Day 1 (121:6–8); Hearing Tr. Day 2 ( 64:19–65:6). According to Atla s, the resulting delays have led to missed shipping deadlines, have left passengers stranded, an d have prompted customer complaints, thus causing Atlas both economic and reputational h arm. Dkt. 5-3 at 8–10. The parties generally agree that s hort-notice sick calls are disrup tive. They disagree, however, about whether they have materially i ncreased since the CBA negotiatio ns commenced and, if so, whether the Union’s SHOP campa ign is to blame. Accordingly, to meet its burden on this aspect of its claim, Atlas must first demonstrate that it is likely to succeed at trial in showing by a preponderance of the evidence th at the rate of short-notice sic k calls has deviated from the historical rate—that is, that th ere has been a change in the st atus quo—and must then show by clear proof that the Union is responsible for that change. Atlas initially offered both anecd otal and statistical evidence to support its contention that short-notice sick ca lls have (1) disrupte d operations; (2) occurred more often; and (3) increased because of Union action in violation of the status quo. See, e.g. , id. (anecdotal evidence); Dkt. 5-42 103 at 22–26 (statistical evidenc e). The Union responded with evidence that legitimate explanations existed for most , if not all, of the calls offered as examples by Atlas. See Dkt. 31- 23 (declaration of crew member r eferenced in complaint describi ng incorrectly coded sick call); Dkt. 31-24 (declaration of crew member involved in scheduling r ebutting several of the claimed examples through reference to s cheduling data); Dkt. 31-25 (dec laration of crew member referenced in complaint descri bing sickness); Dkt. 31-26 (same) ; Dkt. 31-28 (same); Dkt. 31-29 (same); Dkt. 31-30 (same); Dkt . 31-31 (same). In light of the Union’s rebuttal of the specific examples offered by Atlas, the com pany conceded at the hearing that it has not, in fact, produced any specific examples of abus e. Hearing Tr. Day 1 (34:25–35:20 ). Atlas’s principal argument , however, does not turn on its anecd otal accounts of shortnotice sick calls, but rather focuses on statistical evidence o f a material deviation from the historical status quo start ing on October 1, 2016. That statis tical evidence shows that between October 1, 2015 and September 20, 2016, only 13.8% of sick call s occurred on the same day the crew member was scheduled t o fly. Dkt. 5-103 at 25. Notably, the highest monthly percentage of sick calls occurring on short notice during that time period was 18%. Id . at 24, Ex. 5. From October 1, 2016 to September 20, 2017, in contrast, the average percentage of sick calls occurring on the day of duty increased to 23.8%. Id . at 24–25 & Ex. 6. During that time span, moreover, the monthly percentage of sick calls occurring with s hort notice never dropped below 18%, and in all but one m onth was 20% or higher. Id . at 24, Ex. 5. Based on his analysis of this data, Atlas’s expert, Dr. Darin L ee, concluded that the increas ed percentage of same-day sick calls beginning on October 1, 2016, was “not the result of rand om statistical variation, but rather, a concerted change in behavior by A tlas’s pilots aimed at disru pting the Company’s operations.”
Id. at 26. The latter half of that st atement, which addresses the subjective motivation of the43 pilots, extends beyond the scope of what Dr. Lee’s analysis cou ld have revealed. The Court finds, however, that the data and D r. Lee’s conclusion regardin g the statistical sig nificance of the change show that Atlas is likel y to succeed in proving that Atl as pilots have c alled in sick on short notice more frequently s ince late 2016 than they did in the preceding three-and-a-half
years. The Union, for its part, does not challenge Atlas’s showing tha t short-notice sick calls have increased in frequency s ince late 2016 and, instead, argue s that the total number of sick calls has remained constant; thatthe increase in short-notice calls does not coincide with the timing of the Union’s Section 6 noti ce; and that the increase i n short-notice calls can be better explained as the result of an inc rease in the total number of A tlas flights. Dkt. 31-3 at 5–6, 33– 36. Much of the Union’s response, however, misses the point of Atlas’s evidence. Through its expert, Daniel Akins, the Union s uggests that “[p]erhaps it wou ld be more appropriate to measure total pilot sick calls per departure t o get a better se nse of changes in pilot behavior.” Dkt. 31-3 at 31. That, however, sim ply side steps Atlas’s clai m that there has been a marked increase in the percentage of short-notice sick calls—as oppose d to an increase in total sick
calls . Mr. Akins’s analysis does dem onstrate that the number of sic k calls per departure remained relatively constant , even though the proportion of sic k calls made at the last minute substantially increased. Compare Dkt. 31-3 at 31, Ex. 13, with id. at 32–34 & Ex. 15. But that point, if anything, raises reasona ble suspicions of abuse; that is, the Court is l eft to wonder why the rate of last-minute sick calls would increase while the overall rate of sick calls remained relatively constant.44 Mr. Akins also criticizes Dr. L ee’s use of October 2016 to mark the onset of the change in behavior instead of Februar y 2016, which is when the Union s erved its Section 6 notice. Dkt. 31-3 at 35. He explains: [T]his time-line does not corre spond with Dr. Lee’s narrative o f Union[-] orchestrated behavioral changes beginning in February 2016. As can be seen, the number of pilot short-notice sick calls drop[ped] during the fi rst seven months after February 2016 below the level experienced in the year prior, an d was generally increasing in the time prior to February 2016. Id. That contention, however, does not disprove Dr. Lee’s assertio n that the Atlas pilots have engaged in a statistically signi ficant change in the status quo —it just raises a question about whether the Union prompted the c hange in order to exert pressur e on the ongoing negotiations. And, as discussed below, there is substantial evidence that the Union intentionally implemented a don’t-fly-sick campaign t o correspond with the 2016 holiday s eason to maximize its disruption. Having found that Atlas has demons trated a statistically signif icant increase in the percentage of sick calls mad e on short notice, the next questio n is whether Atlas has met its burden of providing “clear proof” th at the change occurred at t he Union’s instigation. Although a close question, the Court concl udes that Atlas has also met t his burden. Atlas’s most direct evidence can be found in several statements by Union officials urging Atlas pilots not to fly sick. See Dkt. 27-4 at 33 (31:6–13); Dkt . 5-79 at 2; Dkt. 44-14 at 13 (12:1–14); Dkt. 5-10 at 2. Standi ng alone, those exhortations might not carry the day. But, when read carefully and in light of t he overall context—especially the SHOP campaign—it is evident that at least some of the Union’ s exhortations were tied to the ongoing labor dispute. One example of the Union discussing flying sick comes in a message sent to “Atlas Crew Members” from “The Stewards of Atlas, A PA Teamsters Local 1224” on Septe mber 7, 2017. That message told crew members: “As we find our selves in the midst of a per iod of increased friction and hostility, we remind everyone to mak e absolutely certain that y ou are fit for duty each and every45 time you report to work. Pleas e, do not fly sick or fatigued.” Dkt. 5-79 at 2. This is not a mere safety message. It is an attempt to link the decision whether to call in sick to the ongoing relationship between labor and management. Another example can be found in an August 17, 2017 “negotiation s update and leadership webinar,” in which both Captai n Kirchner and Chris Knox, the Un ion’s “negotiations chair” appeared. Dkt. 44-14 at 2 (1:6–14). The Union’s Communication s Chairman, Captain Griffith, started the conversation by noti ng that “[t]he hot topic, obvio usly, today is negotiations and the updates that we may have from those negotiations.” Id. at 3 (2:11–14). One pilot posed the following question: “[A]ny chance we could have a contract by the fourth quarter? I hear a rumor that the fourth quarter Flynn flu could be really bad,” referencing William Flynn, Atlas’s
CEO. Id. at 12–13 (11:20–12:2) (emphasis a dded). The remark is followe d by laughter, and Captain Kirchner then responds: Yeah, we would certainly think that’s what we all want. There’ s nothing better that this Company could do than have all of its pilots pulling in th e same direction during a critical fourth quarter. Amazon, DHL, all these other companies are taking notice, and it certainly would make good business sense to be able to perform at the top level for these customers inthe fourth quart er. But in or der to do that, they are going to have to do what they should have done by September 14 of 2016. Id . at 13 (12:3–14). Significantly, C aptain Kirchner does not ta ke issue with the pilot’s statement—made to all members who participated in the conversat ion—that “the fourth quarter Flynn flu could be really bad.” A final example of this kind of direct reference to not flying sick comes in a series of videos that began in February 2016. These videos occasionally referenced flying sick within discussions of fatigue, SHOP, a nd BOOT more generally. Dkt. 5- 3 at 25. The first of these began with the host saying that he called in sick last night fo r a flight from Huntsville to Luxembourg. Dkt. 5-10 at 2 (1:7–8) . He then pulls what appear s to be a thermometer from the46 corner of his mouth and says i n a spoofing tone: “Oh no. It’s 105. Is that bad?” Id. (1:10–11). Later in the same video, the hos t—again in a parodic tone—says that he is getting hot, and he pulls a large rubber hot wat er bottle out of his shirt. Id. (1:15–16). Although arguably merely intended to entertain, the messa ge concludes with the slogan co mmon in the Union’s communications discussing SHOP an d the creation of leverage: “ It’s your CBA. They signed it. You use it.” Id. (4:3–4). To be sure, the Union has not expr essly told its members that they should abuse their right to take sick leave. But , it is clear that the Union unde rstood the risks of delivering such an explicit message. See , e.g ., Dkt. 27-4 at 44 (42:3–19) (descri bing sick-out orchestrated by a different union against a differe nt airline, resulting in a $40 million fine). And, it is equally clear that more explicit language was unnecessary. “An employer may meet the clear proof standard with statistical evidence in com bination with evidence of the u nion’s coded [or less than explicit] communications to its members t o engage in an unlawful job acti on.” United Air Lines v. Air Pilots Ass’n, Int’l , 563 F.3d 257, 272 (7th Cir. 2009). Thus , phrases like “work safe,” “work by the book,” and “fly the contract” may be sufficient when combin ed with statistical evidence. Id

. The Court, moreover, must consid er the “content and tone” of th e communications “ in relation to all of the other evidence about the job actions.” Id. at 273. Here, the “content and tone” of the Union’s communications, the stati stics, and the overall context satisfy the clear proof standard. Finally, the references to not flying sick must be placed in th e context of prior Union actions and the SHOP campaign. To take a notable example, from December 16 to December 24, 2016, Atlas experienced a sharp i ncrease in the percentage of B-767 pilots calling in sick. Dkt. 5-3 at 10. During this period, the proportion of B-767 pi lots calling in sick averaged five percent, double the average proportion calling in sick for the remainder of 2016, and over fifty-47 percent higher than the rate i n the correspondi ng periods in 20 15 and 2014. Dkt. 5-103 at 71–72. The 2016 holiday sick-out, more over, took place at the same tim e that the Union was picketing Amazon and running an online advertising campaign questioning w hether Amazon could deliver on time because “there may not be enough pilots to deliver for Amazon around the holidays.” Dkt. 5-3 at 10. Atlas uses its B -767 fleet to fly for Amazon. Id. Leaving little doubt about the connection between the sick-out , the online advertising campaig n noted that Amazon “Prime Air will operate with 40 planes lease d from” Atlas an d another comp any, and it urged consumers to “[g]ive one star for Amazon Prime Air and tell Amazon executive s to make sure its contracted pilots have a fair contract to e nsure stability and that there are enough qualified pilots to get the job done.” Dkt. 5-70 at 2–3. Although the 2016 sick-out ended with the holiday season, the Union’s ongoing communications t elling pilots not to fly sick—a nd the evidence of a significant increase in short-notice sic k calls—must be understood in lightof this history. Those communications must also be placed in the context of the Union’s SHOP campaign, which is clearly tied to the ongoing contract negotiations. It does not require a giant leap to infer from the Union’s a ppeals that its m embers stop he lping the company in order to aid in the ongoing negotiati ons that its often contemporaneous plea s that members not fly sick are also been intended to apply pre ssure on the company in those ne gotiations. And, when the Union’s statements are consider ed in light of the otherwise-une xplained significant increase in the rate at which Atlas pilots have called in sick on short not ice, the Court is lef t with little doubt that the Union has encouraged the change in the status quo. b. Fatigue Calls Atlas also alleges that, at th e Union’s urging, pilots have cal led in fatigued—and thus unable to fly—with greater freque ncy since the Union served its Section 6 notice. See , e.g ., Dkt. 5-103 at 27. According to Dr. L ee, Atlas averaged only 5.7 fat igue calls per 1,000 active pilots48 on a monthly basis between July 2014 and January 2016. Id. That average, however, increased to 16.3 fatigue calls per 1,000 pilo ts between February 16, 201 6 (the date of the Section 6 notice) and August 2017. Id. Dr. Lee further attests that in e ight of the last eighteen months, the monthly rate has exceeded 17.8 fa tigue calls per 1,000 pilots and that “the probability of observing eight or more months sin ce the Union sent its Section6 notice with ‘out lier’ rates of pilot fatigue is less than one-in-600,000.” Id. And, finally, Dr. Lee posits that the increased rate of fatigue calls ca nnot be attributed to the company’s expansio n, to changes in the FAA rules governing fatigue, or to highe r rates of pilot utilization. Id . at 27–28. He notes, for example, that the FAA “began requiring commerc ial airlines to have FAA[-]appr oved Fatigue Risk Management Plans” more than five years before the Union served its Section 6 notice. Id. at 28
n.42. The Union does not dispute Dr. Lee’ s assertion that the rate at which Atlas pilots have declined to fly due to fatigue ha s increased since February 201 6, but it contends that the upward trend in fatigue calls began in e arly 2015—well before the Unio n served its Section 6 notice— and that the increase can be explained by reasons unrelated to the current labor dispute. Dkt. 31 at 61–62; Dkt. 31-3 at 36–41. In the U nion’s view, the factual backdrop is more complicated than Atlas suggests. The Union arg ues that the increase has be en far from steady—and, indeed, that there was a dramatic drop i n fatigue calls in May and June 2016, Dkt. 48 at 18; that a joint labor-management Fatigue Risk Management Committee “accepted” a ll of the fatigue calls at issue, id. at 15; that each of the fatigue calls that Atlas questioned inits opening brief were, in fact, legitimate, Dkt. 50 at 18; t hat the increased percentage of new pilots working for Atlas has contributed to the incr ease in fatigue calls, id. at 20; that scheduling problems and other management failings also contri buted to the increase, Dkt. 31-2 at 25–26; and, finally, that49 changes in the law governing pilot fatigue and implementation o f a complicated regulatory regime better explains the increase, id. ; 31-4 at 5–10. Because the Court concludes that the Union’s final point casts si gnificant doubt on Atlas’s fatigue argument, the Court will limit its discussion to that issue. As the Union notes, in the wake of a 2009 crash of a regional a ircraft that killed fifty people, Congress enacted the Air line Safety and Federal Aviatio n Administrative Extension Act of 2010, Pub. L. No. 111–216, 124 Stat . 2348 (codified in scatt ered sections of I.R.C. and 49 U.S.C.). Among other safety meas ures, that law required the FA A to issue enhanced regulations “to address problems relating t o pilot fatigue,” § 212(a)(1), and required air carriers to “submit to the [FAA] for review and acceptance a fatigue risk management p lan for the carrier’s pilots,” § 212(b). In response, the FAA issu ed a final rule on January 4, 2012, adding a new regulation relating to pilot fatigue o n commercial flights, see 77 Fed. Reg. 330-01 (Jan. 4, 2012), while leaving the old rule—14 C.F .R. § 121—in place for cargo flights . The new, more demanding regulation—14 C.F.R. § 117—require s that airlines adopt fatigue risk management plans and provide their pilots with fati gue training, and it imposes a ma ndatory duty on pilots to report when they are too fatigue d to fly. 77 Fed. Reg. at 349. Under the new “fitness for duty” regulation, “[e]ach flightcrew member” is required to “report for any flight duty peri od rested and prepared to perfo rm his or her dutie s,” and no airline “may assign and no flightcrew member may accept assignment to a flight duty period if the flightcrew member has reporte d for a flight duty period too fat igued to safely perform his or her assigned duties.” 14 C.F.R. § 117.5. The FAA, moreover, decli ned to limit the determination of “fitness for duty” to a series of objective standards, such as hours between flights, see , e.g ., 14 C.F.R. § 117.25, but instead require d that each p ilot “utilize the information provided during his50 or her statutorily-mandated fati gue training to self-assess whe ther he or she feels well-rested enough to safely complete his or her assigned” flight duty peri od. 77 Fed. Reg. at 349–50. Determination of “fitness for duty” is, accordingly, an inheren tly individual, subjective inquiry. The Union suggests that the incr ease in fatigue calls is most l ikely attributable to the new regulations for two reasons. F irst, Atlas is one of only two a irlines that regularly flies both cargo and passenger flights subject to the divergent fatigue rules. Dkt. 31-4 at 9. As a result, Atlas pilots face the difficult tas k of applying distinct fatigue-mit igation requirements depending on whether each particular flight is subject to the Part 121 rules governing cargo fli ghts or the Part 117 rules governing passenger flights. That task is complicate d, moreover, by the fact that— unlike any other airline—Atlas pi lots “are required to fly mixe d operations during [a single] monthly schedule[].” Dkt. 31-4 a t 9. “In other words, Atlas p ilots are required to operate ‘all cargo’ flights for one or more cons ecutive days of their monthl y trips, during which they are subject to the FAA’s old, more exhausting hours of service and rest rules, and then, operate passenger flights the next night or several night s, during whic h they are subject to the new . . . Part 117 rules.” Id. Second, the new rules did not take effect until January 2014, a nd, since then, Atlas pilots hav e become more aware of and comfortable wi th the new rules and Atlas’s Fatigue Risk Management Plan (“FRMP”). See , e.g ., Dkt. 31-5 at 6. Although it is possible that the i ncrease in fatigue calls over the past few years is attributable to a Union-sponsor ed slowdown, the Court finds tha t the Union has offered an alternative explanation that is both equally plausible and cons istent with the strong public interest in preventing pilots fr om flying while fatigued. As a n initial matter, it is clear from Dr. Lee’s own graph that the monthly r ate of fatigue calls has beenon an upward trend since early
2015.51 Dkt. 5-103 at 28, Ex. 7. Although the diagonal line, which the Court has added to Dr. Lee’s graph, is not based on a statisti cal analysis and does not repr esent the “best fit” for the data, it nonetheless captures the self-evident upward trend. And, Dr. L ee’s conclusion that the postFebruary 2016 rate exceeds the pre-February 2016 rate would be true for any upward trend, and would be true for a variety of o ther cutoff dates that Dr. Lee might have chosen. More importantly, a reasonable argument can be made that the up ward trend tracks the implementation and acceptance of the new FAA fatigue rules and Atlas’s FRMP. The FAA issued its final pilotfatigue rule in 2012 , see 77 Fed. Reg. 330-01 (Jan. 4, 2012); Atlas, then, developed and implemented its FRMP in 2013, see Dkt. 31-4 at 9; and the FAA rule took effect in 2014, see 14 C.F.R. § 117. As Captain Ca rlson acknowledged, however, eff orts to educate Atlas pilots about recognizing and mitigating pilot fatigue hav e continued from 2013 to 2017. Hearing Tr. Day 2 (79:21–80:12). In 2015, moreover, Atlas impl emented a requirement that when pilots “sign off on their flight plans,” they also “sign o ff and . . . initial that they are fit for52 duty.” Id . (196:20–197:7). In addition, according to Captain Christophe r Lang, one of Atlas’s FRMP instructors, the company a nd its pilots have “constantly d eveloped the program and increased the training on—the a wareness training on fatigue.” Hearing Tr. Day 3 (96:8–17). Captain Lang further testified that, “[p]articularly since Febr uary of this year, [they have] increased the [in-class] traini ng,” and that they added a “fati gue module” to the mandatory, quarterly computer training “this year” and “probably” for “part of last year as well.” Id. (96:8– 98:4). And, finally, Captain La ng testified that Atlas’s progr am director for the FRMP appeared at a check airmen’s meeting i n August of this year and, after a bout half of the pilots present conceded that they had flown f atigued, he “encouraged [those pr esent] to call in fatigued more often; to improve flight saf ety and not [to] fly when . . . fat igued.” Id . (98:7–99:12). Nor is it surprising that it has taken time and an ongoing effo rt to address the problem of pilot fatigue. As a number of w itnesses testified, the industry had a “mission-oriented” culture under which pilots, at times, flew fatigued. Dkt. 31-4 at 10; see also Hearing Tr. Day 2 (137:13– 138:12); Hearing Tr. Day 3 (87:7–88:7 ). The fact that the asse ssment of pilot fatigue under Part 117 is subjective and requires a de gree of self-awareness furth er supports the Union’s contention that change was not immediate, but , rather, required time and a shift in culture. The Union, moreover, also reasona bly attributes the increase infatigue calls on a change in the demographics of the Atlas pilot workforce. As Captain K evin McCabe testified, “approximately 50% of the [current] Atlas pilot workforce was h ired on or after January 1, 2015, and 30% of the workforce has less than two years seniority withAtlas.” Dkt. 31-4 at 11. “Many of these new pilots are young” a nd “were previously employed by domestic commuter airlines.”
Id. As a result, according to Capta in McCabe, “many of these new[ -]hire pilots did not work in the industry when calling out fa tigue was considered and treate d unfavorably,” and they “are53 more comfortable participating w ithin the industry’s new fatigu e and passenger hours of service rules.” Id. at 11–12. The Court recognizes that the in crease in fatigue calls—particu larly when considered in light of the SHOP campaign and sim ilar efforts—may be, at least in part, a product of the Union’s effort to apply pressu re on the company. On the curren t record, however, the Court cannot find that Atlas has met its burden.

c. Open Time Flying Atlas next alleges that the Un ion has violated the RLA by encou raging pilots to decline to volunteer for open time flying a ssignments. Open time flying i s a common feature of airline operations, see Delta Air Lines , 238 F.3d at 1302, and begins with a f light that lacks a crew. This can occur for a variety of reasons, such as sick calls, fa tigue calls, delays due to maintenance issues, last-minute customer requests, or lack of s ufficient staff. Dkt. 5-3 at 15–16. Regardless of the cause, Atlas attempts to fill open space in two ways. First, it has a supply of reserve crew members availa ble each day. Dkt. 5-3 at 15–16. T hese pilots are required to be available to fly, but will not necessarily be close enough to c over a particular flight. Dkt. 5-3 at 16. In addition, there are occasions when the reserve is alrea dy fully utilized. Id . That leads to the second method of staffing open time: volunteers. Atlas sen ds out requests for volunteers for a given flight, and available pilots, who are offered premium p ay to cover the open time, are then given the opportunity to bid on t he available flight. Dkt. 5-3 at 16. When multiple pilots bid on the same flight, the open time tr ip is given (or, at least, sho uld be given) to the pilot with greatest seniority. Id . It goes without saying that unf illed open time damages the c ompany, which cannot complete the f light as scheduled. Atlas has presented convincing evidence that, since the Union s erved its Section 6 notice, (1) the company has faced great er difficult in filling open tim e trips, and (2) it has been unable to54 fill a greater proportion of its open time trips. Dr. Lee meas ured the difficulty in filling open time trips by comparing the numbe r of calls needed to fill each open time trip over time. Dkt. 5- 103 at 30. As explained in his de claration, in 2015, Atlas’s s chedulers made an average of one and a half calls to fill each open time trip. Id . at 29. Over the course of t hat year, moreover, the number of calls needed to fill each trip was relatively constant from month to month, never dropping to one or rising to two. Id. at 29–30. Over the first eight months of 2016, however, that number increased to two, and over the following year, the number increased to three. Id. at 30. Dr. Lee also found an increase in the percentage of open time trips that have gone unfilled. According to this analysis, the percentage of unfill ed open time trips between January 2015 and February 2016, when the U nion served its Section 6 not ice, never rose above 5%. Id. at 31. In contrast, there have b een eleven months since Februa ry 2016 when the percentage of unfilled open time trips has exceeded 5%. Id. As reflected in the g raph reproduced below, moreover, the percentage of unfilled open time trips surged to 30% in October 2016, 42% in December 2016, and 23% in March 2017.55 Id. at 32, Ex. 9. Not only does this graph depict a significant i ncrease in unfilled flights, but, as Atlas stresses, this increase is all the more dramatic in light of the fact that the number of available open time trips dropped from an average of 132 per mo nth between January 2015 and February 2016 to an average of only 73 per month from March 201 6 to August 2017. Id. at 31. The Union contends that the data reflected in Exhibit 9 does n ot establish a status quo violation because the spike in unfilled trips did not occur unt il September 2016, seven months after the Union served its Sec tion 6 notice. As explained abov e, however, the type of precise temporal correspondence that the Union demands is neither requi red nor what one would reasonably expect to occur; the re is no reason to believe that a union would organize and apply all possible pressure on the day the Section 6 notice is served —it is not surprising to see tensions ebb and flow over time. To be s ure, Atlas bears the burden of demonstrating that the Union is56 responsible for the changes tha t have occurred, but that is a s eparate inquiry that is addressed below. The Union’s expert, Mr. Akins , suggests a number of alternativ e theories for the dramatic increase in the percentage of unfilled trips. He posits, for e xample, that the increase corresponds to a decrease in the number of open time trips. Dkt. 31-3 at 4 5–46. The theory that a drop in supply explains why the remaini ng available slots went unfilled is difficult to fathom. Dkt. 35 at 38. Mr. Akins, however, make an e ffort to do so, suggesting th at it is “possible” that “the number or proportion of desirable trips” decreased or that pilo t interest in open time trips diminished because Atlas adopted a policy of ferrying pilots to and from these flights on Atlas aircraft, rather than on more comf ortable commercial flights. Dkt. 31-3 at 47. But, both of these theories are more supposition than evidence; even beyond the qu alifiers that Mr. Akins himself includes (“it is possible ,” “[t]his change may make it more difficult,” id. ), the Union offers no evidence that either of these po ssibilities has had any effect on pilot behavior. Given the force of Dr. Lee’s testimony and the Union’ s failure to present evidence of alternative explanations for the increased difficulty in filling open time and the larger pe rcentage of open time flights that have gone unfilled, the Court finds that a change in the status quo has occurred. 5 That leaves the question whether Atlas has offered clear proof of the Union’s involvement in these changes. Once again, it is necessary to c onsider this issue in light of the Union’s more general SHOP campa ign, which has urged Atlas pilot s to turn down the “quick buck” and “to stop doing the Compan y favors” in order to give t he Executive Committee and Negotiation Committee “the lever age and power they need.” Dkt. 5-11 at 2 (1:17–21). Picking

5 In its post-hearing brief, the U nion acknowledges “increased . . . reluctance to pick up additional flying from open time.” Dkt. 50 at 19. It focuses its argument inst ead on the role of the Union in fomenting that reluctance, disc ussed below.57 up on this theme during an Octobe r 14, 2016 ATAM, Captain Griff ith provided pilots with “a short list of some of” the thi ngs that they are not required to do under the CBA. Dkt. 5-33 at 6 (19:4). First on this list was “bid[ding] or accept[ing] open time flying.” Id . (19:6–7). Captain Griffith then explained: We have learned we have choices [and that] following the CBA is a simple and extremely [e]ffective way to give our Union all the leverage itneeds to score points during talks and negotiations with Purchase. But perhaps we co uld agree, we have learned what you are not required to do as well and still compl y fully with our woeful and much maligned CBA. Understanding is but the first s tep in the successful execution of any plan. And our plan is to negotiate and bring home an industry leading CBA to our pilots and their families. Our exe cution and doing the very simple things our Union asks of us is the key. The very k ey to our solidarity and our eventual success. . . . Now is not the time to let up, ladies and gentlemen. Keep the pressure on them, and we will triumph. Id. at 6–7 (20:1–21:2). Other communications make the same point. During a May 11, 20 17 conference call, for example, a pilot asked about “so lidarity” and, in particular, w hether the Union calls pilots who pick up open time trips to tell th em “to get on the program.” Dkt. 28-13 at 10 (8:4–11). Captain Kirchner replied that the Uni on is not allowed to reprimand pil ots for accepting open time trips, but added, “I think there’s enough peer pressure going on here and enough people eating dinner by themselves and not having a nybody to talk to on long flights that I think that’s getting done in that manner.” Id . (8:12–17). He then added: “We do have great solidarity. An d like you point out, the vast majority of our cre wmembers are onboard, and they understand that sma ll sacrifices . . . here now will lead to large rewards down the line. The v ise is tightening here every day as we move towards the fourth quarter.” Id . at 10–11 (8:21–9:5). Captain G riffith echoes this point later in the same call. After explaining that the decision whe ther to bid for or to accept open time trips was “a personal choice,” Captain Griffith explained: However, when you look at it from the point of view of trying t o put pressure on the company—not to hurt the com pany, but put pressure on them t o get them back58 to the table—to deny them virtual extra crewmembers—because, re member, every time you outbase or every time you [volunteer], you are virtual ly becoming more than one crewmember for them in a bid cycle. You know, you got to think about that.
Id . at 17 (15:1–9). The following mon th, Captain Kirchner once a gain reinforced this point during a Crew Call. Dkt. 28-14 at 3–5. There, a panelist aske d whether “picking up open time flying harm[s] . . . our ability to ne gotiate,” and Captain Kir chner responded, “when you go the extra mile for them, that just solidifies and helps them in wha t they are trying to do to us. Okay?” Id. at 5–6 (3:13–4:3). A final example suffices to make the point. During a July 10, 2017 Crew Call, Captain Kirchner and the Chairman of the Union’s Negotiation Committee were asked what the pilots should do to help with the negot iations. Dkt. 28-15 at 5 (3:1) . They responded: You need to follow the CBA, and, you know, look at your job fro m a standpoint of do you enthusiastically show up for work and go above and beyon d what’s required to help Atlas out, or are you doing just the bare mini mum of what’s required for you at work every day and nothing more ? Those are the kind of things, if you ask yourself that with every little thing that you have a decision to make on that topic, it makes a huge difference on a large scale. A lot of people d on’t believe they make a difference, but they really do. Each and every one of you he lps us tremendously. (Captain Knox). And if you look at Atlas right now and the open time coming up and the service failures, it’s literally a house of cards ready to come crashin g in. They are putting this together with scotch ta pe and baling wire. (Captain Kirchner).
Id . at 5–6 (3:9–21, 3:22–4:5) (emphasis added). Later in the sam e call, Captain Kirchner further explained: “We’re watching some trips cancel, some trips delay ed;” “You are all watching a huge amount of open time;” and “unf ortunately some of our pilot s are falling over backwards to help [the company] out of a jam.” Id. at 8 (6:12–13). And, although on ce again noting that the decision whether to fly open time is a personal one, Captain Ki rchner told the pi lots that “[i]t certainly is helpful when you don’t,” id . at 9 (7:10–11), and that if you decide you want to spend59 time with family and “you don’t want to help . . . out, that’s a great personal decision,” id . at 13 (11:2–9). The Executive Committee’ s Communications Chairman fo llowed up Captain Kirchner’s comments with his own s tatement that he “personally [has chosen] not to fly overtime” and “not to help [the] company.” Id. at 16 (14:20–22). Reviewing these statements in the context of the overall recor d and in light of the Union’s recognition of the risk of making more explicit asserti ons, the Court is left with little doubt that the increased difficu lty that Atlas has had in filli ng open time trips is a product of the Union’s campaign to apply pressure on Atlas in the ongoing CBA negotiations. d. Blocking Out In the airline industry, “blocki ng out” refers to the time at w hich a pilot releases the parking brake and begins taxii ng. Dkt. 5-2 at 35. The issue b efore the Court revolves around when blocking out occurs relative to a flight’s estimated departure time (“ETD”). Atlas argues that the Union has encouraged pilo ts to “Block Out On Time” (or , to use the Union’s shorthand, to “BOOT”) and that this campai gn has altered the status quo inviolation of the RLA. The company states that the ETD represents “ the latest a flight is expected t o block out” and that, in the past, pilots frequently blocked out as soon as their aircra ft were “loaded and ready.” Dkt. 5-2 at 34 (emphasis added). The Uni on disagrees with this characte rization and argues that the ETD is the time a flight is expect ed to block out. Dkt. 31-2 at 27–28. Atlas must first demonstrate th at it is likel y to prevail on it s contention that, since the Union proffered its Section 6 noti ce, pilots have changed their blocking out practices and that they now more frequently wait until the ETD before blocking out

. 6 The Court finds that Atlas

6 Atlas suggests that the Union’ s pronouncements to its members that the BOOT campaign is working (that is, creating lever age in negotiations) constitute s prima facie evidence of a status quo violation. Dkt. 47 at 25. Because Atlas bears the burden of proof and because it is possible60 has carried this burden. The company has offered credible stat istical evidence showing a dramatic increase in the number of flights blocking out exactly at the ETD, and a corresponding decrease in flights blocking out early. As Dr. Lee testified, from January 1, 2012 to February 15, 2016 (that is, just prior to the Union’s Section 6 notice), the percentage of flights not delayed for other reasons that blocked outprior to the ETD hovered around 80%, with the number of flights blocking out exactly at the ETD fluctuating between roughly 10% and 20%. Dkt. 5-103 at 38 & Ex. 12. By contrast, after the U nion served its Section 6 noti ce, the average percentage of flights blocking out exactly at the ETD rose to 53%. Id . at 39. Dr. Lee captured the striking results of his statistical analysis in the exhibit reproduced below.

Id. at 38, Ex. 12.
that the Union has engaged in puffery, the Court will accord on ly minimal weight to those assertions in determining whether the pilots have, in fact, alt ered their behavior in response to the campaign.61 Dr. Lee also testified regarding a significant shift in the dis tribution of departure times relative to the ETD, again showing a dramatic increase in the p ercentage of flights blocking out closer to or at the ETD, and presented evidence of how the distribution of blocking out times has shifted. Id. at 40 & Ex. 13. These results a re presented in the exhibit be low.

Id. at 40, Ex. 13. Among other si gnificant variations, the percen tage of flights blocking out twenty-five or more minutes before the EDT dropped from 12.1% t o 3.3% after February 16,
2016. Id. Overall, flights unaffected by other delays have blocked out an average of six minutes less early since February 2016. Id. at 9–10. Much of the Union’s response focuses on the fact that Dr. Lee measured changes in
average departure times relative to the ETD rather than arrival times, which it asserts is a more typical measure of airline perf ormance. Mr. Akins suggests tha t Dr. Lee’s use of departure time62 raises a red flag and may signal that Dr. Lee chose this measur e because an analysis of arrival times did not produce results suppo rtive of Atlas’s claim. See Dkt. 31-3 at 59–61; Hearing Tr. Day 3 (105:3–11). The Court is unconvinced. There was a compe lling reason to use departure times relative to ETD: the Uni on’s BOOT campaign is focused on departure times. Dr. Lee measured whether the Union’s cam paign, which urged pilots to wa it until the EDT to block out, has had the effect of delaying the time when pilots block out. There is nothing suspect about that approach. The Union also contends that the measure of departure times re lative to ETD is meaningless because Atlas’s cu stomers do not care about when a flight departs, they care about when it arrives. Dkt. 31-3 at 59. T he premise of that content ion is itself suspect. As Captain Carlson testified, unlike commercia l passenger flights, “there is no need for a cargo flight . . . to wait once loaded and ready,” and “[p ]rompt departures reduce ai rport and hub congestion for Atlas’[s] customers.” Dkt. 5- 3 at 17–18. But, more importantl y, it is implausible to suggest, as the Union must, that the Atlas pilots have engaged in the BOOT campaign—significantly delaying average blocking out times—only to make up for lost ti me by taxiing or flying faster. Nor is it plausible to suggest that waiting ten, fifteen, or tw enty-five minutes longer to block out would not—at least on average—aff ect the time of arrival of tho se same flights. And, in any event, Atlas has credibly rebutted the Union’s suggestion that the BOOT campaign is inconsequential (or, to put it i n terms of the RLA, ineffective in exerting economic pressure on the ongoing CBA negotiations). As Captain Carlson has attested , “[t]he benefits from blocking out promptly, regardless of es timated departure time, and inste ad when the aircraft is loaded and ready, are significant.” Dkt. 5- 3 at 18. The benefits include additional time to address any maintenance issues that may arise, a buffer to ensure a timely arrival even in the face of63 unexpected delays due to weather , congestion, and ot her issues, and early arrivals that provide crew members additional time t o make connections and to prepare for their next assignment. Id. The Union raises the possibilitythat Atlas could avoid any dis ruption caused by the BOOT campaign by simply setting an ETD fifteen minutes earlier. Dkt. 31-2 at 29. In fact, Atlas has apparently done just t his to better serve Amazon. He aring Tr. Day 2 (87:22–24). But, as Captain Carlson explained, tha t crutch does not entirely dim inish the harm caused by the BOOT program. First, when a flightis scheduled fifteen minute s earlier, the company loses the benefits, discussed above, of a de parture prior to the ETD, rep lacing a buffer prior to the scheduled arrival with dead tim e at the departure gate. Second , Captain Carlson te stified that the staffing costs of such an arrangem ent would be greater than tho se incurred under the departure model common prior to the BOOT campaign. Id . (87:25–88:3). Third, A tlas’s customers set their own schedules, requiring the company to request any such changes—presumably explaining in the process the labor strife–related reasons for the request—rather than make them unilaterally. Id . (87:4–10). That means that requiring Atlas to combat the change in pilot behavior through such a maneuver would contribute to the very r eputational harms it seeks to avoid. Finally, even if it were possible entirely to obviate the effects of the BOOT campaign without additional costs of any kind, Atlas does not have an ob ligation to do so on its own, in lieu of seeking judicial relief. See United Air Lines , 243 F.3d at 363. “Whether [an employer] can diminish or even stop the w ork slowdown through its own act ions has nothing to do with the [union’s] enforceable duty to do everything reasonable to end i t,” and “[t]o hold otherwise would be to deny the union’s independent obligations under the RLA.” Id . The duty at issue here is that of the Union, not Atlas. The C ourt, accordingly, finds th at a change in the status quo in violation of the RLA has occurred.64 The Court also finds that Atla s has carried it burden of showin g by clear proof that the Union bears responsibility for t his change in the status quo. The Union does not dispute that it has enthusiastically encourage d pilots to block out exactly at the ETD—nor could it. See, e.g. , Dkt. 31-2 at 27–28; Hearing Tr. D ay 3 (76:1–15); Dkt. 29-3 at 2 5 (23:16–19) (March 22, 2016 Crew Call) (“Stop helping out P urchase. Do your job. Follow t he CBA, and don’t block out early. Block out on time. That’s what kind of airline we are. ”); Dkt 29-15 at 28–29 (26:10– 27:19) (August 30, 2017 Crew Call) ( “And this goes right up to the argument of follow the CBA. This is what gives our Negotiating Committee, our EXCOs, and ou r stewards the leverage that they need. And leverage is the only power that they have. . . . Blocking out on time is not only advantageous to us by giving lever age to our Nego tiating Commit tee and our EXCO and our stewards, it is also protective of your fellow crewmembers.”); Dkt. 5-17 at 7 (21:11–22:13) (April 12, 2016 CBA Chat) (discu ssing how BOOT-ing may impact A tlas’s performance bonuses on its contracts); Dkt. 5-22 at 2 (2:4–6) (June 20, 201 6 CBA Chat) (“By blocking out on time, you are a shopper.”). The Union’s continued and unequivo cal acknowledgment that it has encouraged BOOT-ing leaves clear proof of Union involvement. Rather than contest this premi se, the Union suggests (or at lea st seems to suggest) that the BOOT campaign was not designed t o exert economic pressure on th e company in the ongoing CBA negotiations, but was intende d to serve other ends. The U nion notes, for example, that a pilot might run afoul of the f light duty regulations by blockin g out early and that Atlas itself requires that pilots obtain authorization to block-out more tha n fifteen minutes before the ETD. Hearing Tr. Day 3 (76:1–79:1). When considered in light of the Union’s many statements encouraging pilots to BOOT in orde r to give its negotiators lev erage, however, that contention is not credible. And, finally, the U nion suggests that it has don e nothing wrong by encouraging its65 pilots to BOOT because nothing in the existing CBA requires tha t pilots block out before the ETD—the pilots may not be helping Atlas; they may be SHOP-ing; but they are not violating the CBA. That contention, however, mis understands the RLA’s status quo duty, which does not turn on whether Union members are acting in violation of the CBA, bu t whether they have altered the status quo in the midst of negotiating a new CBA and whether th ey have done so in manner that exerts economic pressure on the company. See Delta Air Lines , 238 F.3d at 1309. That is precisely what the BOOT campa ign does, and, accordingly, Atlas has demonstrated a likelihood of success on the merits with res pect to this aspect of its cla im.

e. Pilot Maintenance Write-Ups FAA regulations permit aircraft t o operate with open maintenanc e items that do not affect airworthiness. Dkt. 5- 3 at 20. These “Minimum Equipment List” or “MEL” items may include “minor items, such as worn seat cushions, missing linens, or in operable coffer makers.” Id. Although Atlas provides its captains with discretion to require that an MEL repair be made before a flight departs, Atlas “pilots ordinarily and historica lly exercise[d] their authority to defer the maintenance of MEL items until such time as the maintenance would not cause a delay.” Id

. at 21. According to Atlas, the rat e at which pilots write up m aintenance issues has increased since February 16, 2016. Dkt. 5- 103 at 50–51. It contends tha t this increase constitutes yet another example of the Union’s SHOP campaign. In response, the Union does not di spute that the rate of pilot- initiated write-ups has increased, but it submits that th e average number of mechanic-i nitiated write-ups has, at the same time, decreased. Dkt. 31-3 at 65. Thus, for example, mechanic -initiated write- ups fell from an average of 200 per month per airc raft for the two year period f rom January 2014 through December 2015 to an average of 159 per aircraft from January 20 16 through August 2017. Id. During this same period, moreover , the number of pilot-initiate d write-ups increased from 22 per66 month per aircraft to 34 per month per aircraft. Id. As a result, Mr. Akins posits that a “substitution” has occurred: “ Pilot write-ups increased perhap s as a result of either covering write-ups previously filed by m echanics, or mechanics write-ups decreased as a result of increased pilot write-ups.” Id . at 65–66. Either way, the total r ate of write-ups actually f ell after the Union served its Section 6 notice. Id . at 66. Dr. Lee, in turn, does not dispute that the total rate of write -ups has fallen, but merely asserts that Mr. Akins’s conten tion that a substitution has occ urred is speculative. Dkt. 35 at 40. The Court is not prepared to so qui ckly discount Mr. Akins’s fi ndings. It is true that Mr. Akins can only speculate that a substi tution has occurred, but it is Atlas, and not the U nion, that bears the burden of proof, and it has fa iled to offer evidence sugges ting that the increase in pilotinitiated write-ups has had any m aterial effect on the company. Absent evidence showing that it is more likely than not that a change has occurred and that the change is likely to exert pressure on the company in the ongoing contract negotiations, the Court cannot conclude that Atlas has shown a likelihood of success on thi s aspect of its claim that the Union has violated the RLA’s status quo obligation. f. Crew Meals Not surprisingly, Atlas must provide crew members with meals during flights. Dkt. 31- 34 at 3. The CBA sets out various r ules for the number and typ e of these meals based on the time of day and length of the relevant flight. Id . These rules, both partie s agree, are not always followed. Atlas argues that sin ce February 2017, however, “[t] he pilots’ response to catering issues has changed dramaticall y.” Dkt. 5-3 at 21. In the past , pilots would typically respond to meal deficiencies by filing a re port and requesting meal vouche rs to purchase t heir own food in the future. Id. Pilots would “very rarely—if ever—t[ake] a delay as a result of catering issues.”
Id. In February 2017, however, the Uni on “issued a ‘reminder’ to Atlas pilots that they have ‘the67 right to insist upon a contractual ly-compliant crew meal, inclu ding, if necessary, requesting that the company delay the departure of the flight until the crew me al arrives.” Id. Since then, according to Atlas, it “has seen a noticeable increase in the n umber of crew meal-related flight delays beyond normal pilot behavior.” Id. at 21–22. In response, the Union provides ev idence that the catering disp ute began months before contract negotiations commenced. T he Union’s witness, a member of the Executive Committee, explained that a pilot filed a gr ievance in March 2015 regardin g the company’s failure to provide hot meals on a long flight. D kt. 31-34 at 3–4. Although that grievance was allegedly resolved in the Union’s favor, the witness a ttests that Atlas’s Chief Pilot informed the Union that, “from that point on, if the aircraft moved ( blocked out) with improper cat ering, Atlas would not consider any complaints about the cater ing on that flight to be a grievance under the part ies’ collective bargaining agreement.” Id . at 4. It was this confrontati on, according to the witness, t hat has prompted pilots to decline to depart before the catering issue is resolved. Id . at 4–5. Atlas, in turn, does not offer th e same kind of statistical evi dence it has offered in support of other aspects of its claim . In light of the lack of objecti ve, statistical evidence or other evidence that the meal issue has caused material, economic disr uption, and in light of the parties’ conflicting accounts of the relevan t circumstances, the Court f inds that Atlas has not carried its burden of demonstrating a likeli hood of success on this aspect of its claim.
2. Irreparable Injury As noted above, a showing of irreparable injury is not required to obtain injunctive relief under the RLA. See Consolidated Rail , 491 U.S. at 303. Nonetheless, out of an abundance of caution, the Court will consider Atlas’s contention that, in th e absence of an injunction, it will suffer irreparable injury.68 Although Atlas identifies various i njuries that it says it will sustain, its most compelling contention is that a further slo wdown in the middle of the busi est portion of the year for express shipping would cause the company i rreparable reputational harm. Injury to reputation can, at least at times, rise to the level necessary to support the issu ance of an injunction. See Trudeau v.
FTC , 384 F. Supp. 2d 281, 297 (D.D.C. 2005), aff’d , 456 F.3d 178 (D.C. Cir. 2006) (citing Patriot, Inc. v. U.S. Dep’t of Hous. & Urban Dev. , 963 F. Supp. 1, 5 (D.D.C. 1997) (“Moreover, plaintiffs have demonstrated irre parable harm in damage to thei r business reputation.”)); Wright & Miller, Federal Practice a nd Procedure: Civil § 2948.1 (“Inju ry to reputation or goodwill is not easily measurable in monetary terms, and so often is viewed as irreparable.”). To satisfy this standard, however, the plaintiff must make a showing that is “c oncrete and corroborated, not merely speculative.” Trudeau , 384 F. Supp. 2d at 297 (citing Bristol-Myers Squibb Co. v.
Shalala , 923 F. Supp. 212, 215 (D.D.C. 1996)). Atlas has done so here. Both William Flynn, the President and CEO of Atlas, Dkt. 26, and Captain Carlson, Dkt. 5-3, tes tified regarding the damage t o client satisfaction posed by the slowdown, see, e.g. , Dkt. 5-3 at 71, and they substantia ted this testimony with ex amples of complaints from customers and family members of military person nel whose flights have been delayed, see, e.g. , Dkt. 5-87, Dkt. 5-95, Dkt. 5-96, Dkt. 5-97. The company’s cu stomers are aware of the delays create d by the Union’s campaign, and, indee d, the Union has made an effort to bring the delays to their attention. See, e.g. , Dkt. 5-3 at 10–11 (describing Union public relations campaign during winte r 2016 targeting Amazon, which i ncluded a website asking Amazon customers to email the company regarding Atlas’s CBA). Most significantly, the nature of Atlas’s and its customers’ bu sinesses—with their focus

on express cargo delivery—turns on both sp eed and dependability. Dkt. 5- 3 at 4. As Captain69 Carlson testified, Atlas’s customers—and its customers’ custome rs—pay extra for air delivery because they place a premium on speed. Dkt. 5-3 at 78. It is not difficult to imagine that companies like DHL and Amazon a re not inclined to tolerate evenoccasional lapses in promised delivery times. Guaranteed next da y delivery is not the same thing as almost always next day delivery. Atlas has also carried its bur den of showing that the damage to its reputation that will likely result from a slow down during the upcoming busy season i s irreparable. As the company’s witnesses explained, a large portion of Atlas’s busin ess is attributable to a few customers, including DHL, the U.S . Military, and Amazon. Heari ng Tr. Day 3 (5:23–6:16). If those customers conclude that they cannot rely on Atlas for on- time delivery, they are likely to switch contractors or at least to reduce the routes covered by Atlas. Id . (8:11–9:3). And, because of the high cost of the ini tial integration of a transp ortation provider into a customer’s supply chain, once a switch has been made, the customer is unli kely to return its business to Atlas, even if Atlas’s reliab ility problems are resolved. Id

. The Court, accordingly, finds that the testimony and exhibits o ffered into evidence demonstrate that Atlas will likely to suffer “harm to [its] rep utation as a resu lt of the” union’s actions, and “that such harm is certain to continue if the cour t does not impose an injunction.”
See Trudeau , 384 F. Supp. 2d at 297.
3. Balance of Equities The Court also concludes that Atl as has demonstrated that the b alance of equities tips in its favor. See Winter , 555 U.S. at 20. Atlas asserts th at, in the absence of an inj unction requiring maintenance of the status quo, it will continue to suffer econo mic and reputational losses during the busiest time of the year f or its industry. Dkt. 5-2 at 92– 94. The Union argues in response70 that an injunction will chill speech protected by the First Ame ndment, including safety and educational communications that it says are vita l to the operat ion of the airline. Dkt. 50 at 26. The courts have long recognized that “the dissemination of info rmation concerning the facts of a labor dispute must be regarded as within that area o f free discussion that is guaranteed by the Constitution,” Thornhill v. Alabama , 310 U.S. 88, 102 (1940), and the Union plausibly characterizes many of the challe nged actions in this case as in volving such facts, Dkt. 50 at 29. As the Union recognizes, however, “ the First Amendment does notprotect advocacy of unlawful conduct.” Id . Indeed, the Supreme Court has clearly held that injunctions are, at times, the “appropriate means” to enforce th e RLA’s status quo obligations , despite the First Amendment rights involved in the e njoined labor action. Chicago & N.W. Ry. , 402 U.S. at 577 (upholding the use of strike injunctions t o enforce Section 2, First of th e RLA); Street , 367 U.S. at 774–75 (upholding in face of First Amend ment objections injunction enf orcing Section 2, Eleventh of the RLA). Courts have taken a s imilar approach to violations o f other labor laws, enjoining communications and conduct with si gnificant expressive elements that nevertheless violated statutory mandates. See, e.g. , Int’l Longshoremen’s Ass’ n v. Allied Int’l, Inc. , 456 U.S. 212, 226 (1982) (upholding injun ction against secondary picketing by lab or unions that violated the National Labor Relations Act); Miller v. United Food & Commercial Workers Union , 708 F.2d 467, 471 (9th Cir. 1983) (“Because of the government's strong i nterest in regulating the economic relationship between l abor and management, Congress ma y constitutionally enact measures which impact on the spe ech element of picketing.”). T he Court, accordingly, concludes that the First Amend ment does not prohibit it from en joining communications and conduct that violates the statu s quo provisions of the RLA.71 On the other side of the balance, the likely harm to the compan y in the absence of an injunction would be severe. Atla s risks losing existing busine ss and future business opportunities, and, once gone, those opportunities would likelyprove exceedingly difficult to regain. Moreover, in the abse nce of an injunction, Atlas would lose the benefit that the RLA status quo obligation confers upon i t, and it would be required to negotiate with the Union under conditions that Congress deemed improper. See Chicago & N.W. Ry. , 402 U.S. at 582. Given these interests, the Court conc ludes that the balance of hardsh ips tips in Atlas’s favor. The Court agrees with the Union, however, that when unlawful co nduct that may properly be enjoined “occurs in the context of constitutionallyprotected activity,” such as ATAMs and Crew Calls, “precision of regulation is demanded.” D kt. 50 at 29 (quoting NAACP
v. Claiborne Hardware Co. , 458 U.S. 886, 916 (1982) (internal quotations omitted)). Interpreting another provision of the RLA that potentially restricted a union’s political activities, the Supreme Court cautioned distri ct courts that First Amendmen t interests provide “an additional reason for reluctance” to issue “blanket injunctive remed[ies]” under the RLA. Street , 367 U.S. at 773. The Court will the refore consider the chillin g effect on lawfulspeech in setting the scope of its injunction.
4. Public Interest Finally, the Court concludes th at Atlas has shown that the publ ic interest weighs in favor of granting a preliminary injunction. See Winter , 555 U.S. at 20. As explained above, the NLGA and the RLA embody distinct and, at times, competing publi c policies. The NLGA embodies a strong public policy agai nst the intervention of cou rts in labor disputes to avoid “upsetting the natural interplay of the competing economic forc es of labor and capital.” Bhd. of
R.R. Trainmen , 353 U.S. at 40. By contrast, the s tatus quo provisions of th e RLA represent the judgment of Congress that the rig hts of labor and management to freely alter their relations72 should be restricted so as to a void the interru ption of interst ate commerce. Id. ; Erie Lackawanna Ry. v. United Transp. Union, No. 817-71, 1971 WL 721, at *3 (D.D.C. May 21, 1971). Because, in cases involving major disputes , the general mandates of the NLGA must be accommodated to the specific requirements of the RLA, Bhd. of R.R. Trainmen , 353 U.S. at 40–41, these competing public policies must follow a similar path, and the p ublic policy against the issuance of labor injunctions must give w ay to the public interest in av oiding disruptions of the airline and railroad industries. Indeed, tha t interest is acute in the pre sent posture, where the Union’s activities, if allowed, would lik ely interfere with interstate commerce during the busiest season of the year. The public interes t, accordingly, weighs in favor of granting an injunction.
* * * For all of these reasons, the C ourt concludes that it has juri sdiction over this dispute and that Atlas has carried its burde n of demonstrating that it is e ntitled to a preliminary injunction preserving the status quo while t he parties engage in the proce ss mandated by the RLA for resolving major disputes.
C. Bond One final issue merits brief di scussion. Section 7 of the NLGA requires the posting of a bond: No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense tho se enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together w ith a reasonable attorney's fee) and expense of defense against the order or aga inst the granting of any injunctive relief sought in the same proceeding and subsequ ently denied by the court. 29 U.S.C. § 107. Setting an appropriate bond is necessary because “a party injured by an erroneous injunction has no action f or damages in the absence o f a bond and is limited to73 recovering the amount of a bond.” Alton & S. Ry. v. Bhd. of Maint. of Way Emps. , 899 F. Supp. 646, 650 (D.D.C. 1995) (citing Int’l Ass’n of Machinists & Aerospace Workers v. Eastern
Airlines , 925 F.2d 6, 10 (1st Cir. 1991)). In this district, the exact boundaries of when an action for attorney’s fees under the NLGA may be brought are unclear, but courts have imposed a bond sufficient to cover the costs of litigating the motion and any appeal. Id . at 651. Because the parties have not offered proof of the appropriate bond, the Cou rt will order that Atlas post a bond in the amount of $200,000, but the Court invites the parties to file further briefs and supporting evidence should either seek to modify this amount.
CONCLUSION For the reasons expressed above, the Court will GRANT Plaintiffs’ Motion for Preliminary Injunction, Dkt. 5, and DENY Defendants’ Motion to Dismiss, Dkt. 51. A separate order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: November 30, 2017