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 before the Court on Plaintiffs’ motion for a preliminary 

injunction, Dkt. 5, and Defendants’ motion to dismiss, Dkt. 51. 

The case grows out of a labor dispute between Plaintiffs Atlas Air, Inc. and Polar Air 

Cargo Worldwide, Inc. (collectively “Atlas”) and Defendants International Brotherhood of 

Teamsters; International Brotherhood of Teamsters, Airline Division; and Airline Professionals 

Association of the International Brotherhood of Teamsters, Local Union No. 1224 (collectively 

“the Union”). Atlas is an airline that operates cargo and passenger flights for commercial 

customers (such as Amazon, DHL, Qantas, Nippon Cargo Airlines, and Hong Kong Air Cargo 

Carrier) and the U.S. military. It operates both long-haul, international and domestic flights. 

The Union is the certified exclusive 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 September 8, 2016, and the parties 

have been engaged in contract negotiations since earlier that year. All agree that those 

negotiations are governed by the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq., which 
2 

applies to railroad and airline labor relations. The parties disagree, however, about almost 

everything else in this case, including the relevance of the Norris-LaGuardia Act (“NLGA”), 29 

U.S.C. § 101 et seq.

The RLA distinguishes between two types of disputes: “major disputes,” which arise 

“out of efforts to form or change a collective bargaining agreement,” and “minor disputes,” 

which relate “to the proper meaning or application of an existing 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 lengthy process of bargaining and mediation,” 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 this period, and the federal district 

courts are empowered “to enjoin a violation of the status quo.” Id. at 303. In contrast, in the 

case of a “minor dispute,” the RLA requires that the parties confer and, if necessary, submit to 

compulsory arbitration to resolve disputes involving the interpretation or application of their 

collective bargaining agreement. Id. That process moves considerably faster than the major 

dispute process and operates against a different background norm: unlike major disputes, the 

“general”—or categorical—“statutory obligation . . . to maintain the status quo” does not extend 

to minor disputes. Id. at 304. 

According to Atlas, it is in the midst of a major dispute with the Union regarding 

amendment of the CBA, and the Union has violated its statutory obligation to maintain the status 

quo during the ongoing contract negotiations. Atlas argues, in particular, that the Union has 

orchestrated a concerted slowdown of flight operations in an effort to generate economic 
3 

leverage in the ongoing contract negotiations. It contends, for example, that the Union has 

encouraged Atlas’s pilots to more frequently call in sick on short notice, to more frequently 

decline to fly because of fatigue, to refuse to volunteer for open flight assignments, and to delay 

flight departures by “blocking out on time.” Although Atlas argues that the RLA does not 

require proof of irreparable injury to sustain the issuance of a status quo injunction, it also 

maintains that it will suffer irreparable damage to its reputation and business if the slowdown is 

allowed to continue during the peak shipping season between Thanksgiving and the end of the 

year. 

The Union, in contrast, contends that the present dispute is governed by the existing CBA 

and thus constitutes a minor dispute, which does not demand preservation of the status quo. It 

also argues, however, that Atlas is wrong and that it has not encouraged Union members to 

engage in a slowdown. Rather, according 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 to ensure that Atlas abides by its existing contractual 

obligations. Because the Union, as a result, views the present dispute as no more than a gardenvariety disagreement over what is allowed under the CBA, it asserts that the status quo 

requirement of the RLA is inapplicable and that, for this and other reasons, the NLGA strips the 

Court of jurisdiction to issue an injunction. Finally, the Union argues that the injunction that 

Atlas seeks would run afoul of the First Amendment. 

As explained below, the Court concludes that it has jurisdiction to consider Atlas’s 

motion for a preliminary injunction. The Court further concludes, moreover, that Atlas has 

carried its burden of demonstrating that it is likely to succeed on the merits; that, to the extent 

required to do so, it has established that it will likely suffer irreparable injury in the absence of a 
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preliminary injunction; that the Union will not suffer any countervailing injury if such an 

injunction is issued; and that the public interest tips in favor of issuing a preliminary injunction. 

The scope of the preliminary injunction, however, presents a more difficult question. All 

agree that airline pilots should not fly sick or fatigued, that not every flight can or should block 

out before its scheduled departure time, and that pilots cannot be forced to volunteer for open 

flights. It is difficult, if not impossible, moreover, for the Union, Atlas, or the Court to determine 

whether a particular pilot could have provided earlier notice before calling in sick, whether a 

particular pilot is too tired to fly safely, or whether a pilot legitimately wanted to spend more 

time with her family and thus decided not to volunteer for an open 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 collective 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 “minimiz[e] interruptions in the Nation’s transportation 

services by strikes and labor disputes.” Int’l Ass’n of Machinists v. Central Airlines, 372 U.S. 

682, 687 (1963). These efforts have resulted in “successive attempts to establish effective 

machinery to resolve disputes not only as to wages, hours, and working conditions, . . . but also 

as to the interpretation and application of existing contracts.” Id. Congress’s first attempt was 

the Transportation Act of 1920, which soon drew the ire of both labor and management for being 

toothless and allowing the circumvention of rulings made by the administrative agency the act 

created. Id. 

In response, Congress enacted the Railway Labor Act of 1926, and amended it in 1934. 

Id. at 688. This framework was more successful. Id. Unlike agreements subject to the National 
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Labor Relations Act, it made collective bargaining agreements in covered transportation sectors 

perpetual; absent change through the prescribed statutory mechanisms, 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 RLA, after the 1934 

amendments, also created two methods for resolving conflicts between 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 resolve a conflict depends on whether the dispute is “major” 

or “minor” in nature. For the former, Section 6 of the RLA creates 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 parties 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 (“NMB”), an administrative agency created by the RLA. Id. The 

NMB attempts mediation, or, if the parties consent, conducts voluntary arbitration. Id. In the 

event arbitration is declined and mediation fails, the dispute “then may be subject 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 changes in ‘rates of pay, rules, or 

working conditions.’” Id. (quoting 45 U.S.C. § 156). Only after these steps are exhausted and a 

mandatory cooling-off period has elapsed may the parties resort to economic self-help, such as a 
6 

strike or lockout. Id. This dictate to maintain present conditions is commonly known as the 

“status quo obligation,” and an injunction 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 procedures apply any time a party seeks to negotiate a new CBA. 

The party seeking amendment must give notice under Section 6 of the RLA and then follow the 

procedures described above. See 45 U.S.C. § 156. In the airline industry, most CBAs further 

include a temporal restriction on when Section 6 notice can first 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 initiate renegotiation 

of the CBA is referred to as the “amendable date.” 

By contrast, when labor and management cannot resolve a minor dispute through 

negotiation, the RLA mandates that the parties submit the conflict 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 employees and a carrier or carriers by air growing out of 

grievances, or out of the interpretation or application of agreements concerning rates of pay, 

rules, or working conditions . . . may be referred by petition of the parties or by either party to an 

appropriate adjustment board.”). When Congress extended the RLA to airlines in 1936, it tasked 

companies and unions with establishing their own arbitration boards until such time as the NMB 

deemed the establishment of a permanent national board for airlines necessary. Central Airlines, 

372 U.S. at 685–86; see also 45 U.S.C. § 184. The arbitration boards created by labor and 
7 

management continue to be employed today, and are known as “system boards,” Central 

Airlines, 372 U.S. at 690, or, in the case of Atlas and the Union, a “System 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 not have jurisdiction to issue status 

quo injunctions.” Eastern Air Lines I, 863 F.2d at 895–96. As a result, each party “is free to act 

under its interpretation of the collective 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 defined by the Norris-LaGuardia Act, 29 

U.S.C. § 101 et seq. Congress enacted the NLGA to curtail “the growing tendency of federal 

courts to enjoin strikes by narrowly construing the Clayton Act’s labor exemption from the 

Sherman Act’s prohibition against conspiracies to restrain trade.” 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 “controversy concerning terms or conditions of employment, or concerning the 

association or representation 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 issue any restraining order or temporary or permanent injunction . . . 

except in a strict conformity with the provisions of this chapter; nor shall any such restraining 

order or temporary or permanent injunction be issued contrary to 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 arbitrator’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 the granting of [the] strike 

injunction on a requirement that the employer maintain the status quo pending . . . resolution of” 

a minor dispute, Consolidated Rail, 491 U.S. at 304. 
8 

this chapter,” 29 U.S.C. § 101. Section 4 of the NLGA enumerates the specific acts that courts 

lack jurisdiction to enjoin, which include “[c]easing or refusing to perform any work.” 29 U.S.C. 

§ 104. 

The NLGA also contains a number of additional jurisdictional restraints on the 

judiciary’s authority to issue labor injunctions. Most relevant 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 is involved in the 

labor dispute in question, or who has failed to make every reasonable effort to settle 

such dispute either by negotiation or with the aid of any available governmental 

machinery of mediation or voluntary arbitration. 

29 U.S.C. § 108. Section 8 accordingly creates two obligations. First, the party seeking a labor 

injunction must “comply with any 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 than the former” and requires that the moving party “go beyond [his 

legal obligations] and make all reasonable effort” to settle the dispute. Id. at 57. 

Although sweeping, this obligation 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 accommodation of [the NLGA] and the 

Railway Labor Act so that the obvious purpose in the enactment of each is preserved.” Id. That 

accommodation recognizes that the RLA provides “special processes 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. 
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II. FACTUAL BACKGROUND 

A. The Parties 

Plaintiffs Atlas Air, Inc. and Polar Air Worldwide Cargo, Inc. are global airlines offering 

cargo and passenger service. Dkt. 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 international, long-haul cargo and passenger flights using 

primarily B-747s that are typically scheduled on an ad hoc, point-to-point basis. Dkt. 47 at 2–3. 

These flights took Atlas’s pilots and planes to more than 400 airports in 100 different countries 

in the past year. Id. at 2. In addition to transporting time-sensitive products and equipment for 

customers like Qantas, Cathay Pacific, and Nippon Cargo Airlines, Atlas is the largest provider 

of commercial, wide-body cargo airlift services for the United States Military Air Mobility 

Command. Id. at 3. Pilots serving these routes often fly multiple legs overseas rather than 

returning to a base in the United 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 operations constituted the lion’s share 

of Atlas’s business. Dkt. 47 at 3. 

In recent years, however, the growth of online shopping has dramatically increased 

domestic demand for air freight. Id. Atlas has responded by increasing its fleet of B-767s, 

which it uses to operate shorter-haul, domestic cargo flights for customers like Amazon and 

DHL. Id. Unlike Atlas’s long-haul operations, these flights are typically scheduled in advance 

or conducted on a regular schedule, adding predictability to Atlas’s operations. Id. at 4. The 

parties agree that these developments 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 to 
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the increased demand for domestic cargo operations, Atlas has hired large numbers of new pilots 

in recent years. Dkt. 48 at 6. From September 2015 to September 2017, for example, the 

number of pilots employed by Atlas with less than three years of experience increased from 36% 

of all pilots to 51% of all pilots. Dkt. 57-12 at 2. 

Defendants International Brotherhood of Teamsters and its Airline 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 representation of Atlas pilots. Id. at 3–4. Local 1224, in turn, manages the 

representation of Atlas pilots through a five-person, elected board called the Atlas Pilots’ 

Executive Committee. Id. 

B. The Existing Collective Bargaining Agreement 

After several years of negotiations, the current collective bargaining agreement between 

Atlas and the Union took effect on September 8, 2011. Dkt. 47 at 6. Although this opinion 

refers to the Plaintiffs collectively as “Atlas,” as previously noted, they are in fact two separate 

airlines (Atlas Air and Polar) owned by a holding company (Atlas Air Worldwide Holdings). In 

early 2009, the Union, Atlas Air, and Polar agreed to negotiate a merged contract that would 

cover both Atlas Air and Polar pilots, despite the fact that the two companies are separate legal 

entities. Dkt. 31-2 at 4–5. That agreement to negotiate provided 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 concluded 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. 
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That CBA contains several provisions arguably bearing on the present dispute. First, it 

prohibited both parties from seeking to amend or otherwise to change the agreement for five 

years from its effective date. Dkt. 31-1 at 282. Under this provision, the agreement became 

amendable on September 8, 2016, although either party could serve notice on the other of intent 

to seek a change in the agreement 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 Union’s ability to employ economic self-help until 

authorized to do so under the RLA. Section 26.X states, in full: 

The Union, through its Atlas Air, Inc. Executive Council, agrees 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 picket lines, sympathy 

strikes, work stoppages, secondary boycotts, withholding of services in whole or in 

part, concerted refusal to work normal overtime, or other cessation of work of 

disturbances economic or otherwise unless and until the parties’ rights to self-help 

mature under the Railway Labor Act, provided, however, that nothing 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 and individually. Nothing in this 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 pursuant to the Railway 

Labor Act. 

Id. at 204. 

Third, the CBA provides a mechanism for addressing asserted violations 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 Grievance to the Union in writing or by electronic mail. 

The Company grievance shall conform with the timeliness and formal requirements 

set forth in subsection 20.B.1.a, above. The Company may file a grievance only 

over the interpretation or application of the Agreement. Within thirty (30) days of 

submission of a Company grievance, 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 Crewmember labor relations, or their designees, to 

discuss the matter. If the grievance cannot be resolved as a result of this meeting 
12 

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 shall conform to the 

requirements set forth in 20.B.3.a., above, except the notice of appeal shall be filed 

with a Union official designated by the Union. 

Id. at 126–27. 

Finally, the Board to which Section 20.D refers is the System Board of Adjustment 

established in Section 21 of the CBA. Id. at 130. That section describes in detail the process and 

timeline for proceeding with arbitration and limits the jurisdiction of the Board. With respect to 

the Board’s jurisdiction, the CBA states that it “shall not extend to any proposed changes in rates 

of pay, rules or working conditions” and that “[t]he Board shall not have any jurisdiction to add 

to, subtract from, modify or amend any of the terms of this Agreement.” Id. The CBA envisions 

a process for resolving grievances that takes several months. Once the parties conclude they are 

unable to resolve the grievance among themselves, they may appeal to the Board. Id. at 130–31. 

At that point, ten days must elapse 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 hearing, 

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 elections for its Atlas Pilots’ Executive Committee. Dkt. 

48 at 8–9. Captain Robert Kirchner, an employee of Atlas or its 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 Jeffrey Carlson, the Senior Vice President 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 contract compliance.” Dkt. 31-2 at 
13 

15. Captain Kirchner alleges that Captain Carlson agreed that such compliance was the proper 

way forward for the parties, id., and Captain Carlson testified that “contract compliance was the 

message he sent me. And he asked me how the company felt about that. And like I reflected 

before, we absolutely support honoring the contract.” Hearing Tr. Day 2 (57:15–17). 

Captain Kirchner was elected chairman of the Atlas Pilots’ Executive Committee in 

November 2014. Dkt. 48 at 9. Before taking office, he prepared a bullet point proposal for 

Atlas’s upper management to “mitigate the loss of experienced pilots” in light of what he 

regarded to be a “large gap in compensation and retirement” benefits provided under the Atlas 

contract and “the trends in the industry.” Hearing Tr. Day 3 (54:10–55:6); Dkt. 58-1 at 2. 

According to Captain Kirchner, although Atlas’s management “took” the proposal “as a contract 

opener,” he explained that he was not seeking to open negotiations prior to the amendable date, 

which was still over a year and a half away. Hearing Tr. Day 3 (55:10–56:4). In any event, all 

agree that Atlas was not required 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 Kirchner 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 additional airlines, Southern and Florida 

West. Id. at 6. The holding company soon announced its intention to merge Atlas and Southern, 

while keeping Florida West and Polar as separate entities. Id. at 7. The holding company has 

since “wound down” Florida West. Dkt. 5-3 at 6. The crewmembers of Southern are also 

represented by the Union and are parties to a collective bargaining agreement that became 

amendable on November 6, 2016. Id. 
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On February 16, 2016, the Union served written notice under Section 6 of the RLA on 

Atlas that it would seek to modify the collective bargaining agreement 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 the terms of the existing CBA, which allowed a party to serve 

notice of an intent to seek changes as early as 270 days before the amendable date. Id. Around 

the same time, the Union also sent a Section 6 notice to Southern. Dkt. 5-3 at 6. According to 

the Union, at a March 15, 2016 negotiating session, Atlas announced that it would no longer 

engage in standalone negotiations with the Union to amend the Atlas CBA; instead, it would 

negotiate only a “merged” collective bargaining agreement that would cover both Atlas and 

Southern pilots. Dkt. 31-2 at 7. Atlas took the position that such a merged agreement was 

required by the existing CBA, while the Union argued that the holding company, rather than 

Atlas, had acquired Southern. Id. To the Union, that meant that 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 that led to the arbitration that 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 Southern and Atlas formally merged, to integrate the Southern 

pilots into the existing CBA, and to sign a separate agreement that would address concerns the 

Union had regarding the application of the present CBA to the companies’ growing domestic 

cargo operation. Id. at 8. Atlas and Southern refused 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 grievance under the existing CBA alleging that the Union had failed to 

follow procedures for negotiating a post-merger CBA as required by the contract. Id. The Union 
15 

declined to follow the arbitration procedure set out by the CBA, alleging that that the contract 

provisions could not properly be invoked given the structure of the acquisition of Southern and 

the fact that Atlas, rather than 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 creating a merged contract. Id. at 11. The Union contends that Atlas’s 

goal is to force the creation a new 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 eventually permit the parties to use economic self-help. Id. at 11–12. 

D. The Alleged Slowdown 

The Union actions that Atlas alleges constitute an illegal slowdown in violation of the 

RLA’s status quo requirement will be discussed in more detail below. A brief introduction to the 

Union communications and pilot actions at issue, however, is helpful to set the stage. 

After taking office in January 2015, Captain Kirchner launched an effort to revamp the 

Union’s program for communicating with its member pilots. He made it a top priority within the 

Atlas Pilots’ Executive Committee “to better educate the Atlas pilots.” Id. at 19. Among other 

steps, he instituted periodic Atlas Teamsters Action Messages (“ATAMs”), which take the style 

of a radio talk show or podcast, and “Atlas Pilots Crew Calls,” which provide an unscripted 

forum for rank-and-file pilots to call in to ask Captain Kirchner 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 Captain Mike Griffith, the Executive Committee Communications 
16 

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 new 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 there doing your job, you’re also at 

the negotiating table. And every time they out-negotiate you by getting you to violate the CBA 

and [by] getting you to do their job for them, they win at the negotiating table.” Dkt. 28-3 at 11–

12. As the Union’s communication’s director put it during an ATAM, “the leverage” the Union 

“needs to go up against” Atlas management will come from members acting together—in 

“solidarity”—to strictly comply 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 get 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 pilots to “block out on 

time,” or “BOOT.” “Blocking out” refers to the process of releasing 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 depart,” the pilot may—and hopefully 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 departure time, that is not required for 

the final fifteen-minute window. Dkt. 31-2 at 47. Under the BOOT campaign, however, the 

Union has encouraged Atlas pilots to exercise their “right” to wait until the last possible minute 
17 

to block out. As explained by the Union in an April 12, 2016 CBA Chat: “BOOT stands for 

Block Out on Time. And we are not doing this. We are going early, left right, and center. . . . 

So now, we’re asking everybody—your [Executive Committee] is asking you to not block out 

early, ever, period. Period, ever.” Dkt. 5-17 at 6 (18:19–20:21). 

According to Atlas, the Union’s SHOP campaign and other Union-led efforts have placed 

significant financial pressure on the company and have upset the status quo required by the RLA. 

Using statistical analyses to support many of its contentions, Atlas points to the following 

changes in pilot behavior, which it attributes to the Union’s efforts to exert pressure on the 

company in the ongoing contract negotiations: 

First, Atlas argues that pilots are calling in sick on short notice at a higher rate than they 

did prior to the Section 6 notice. Dkt. 5-3 at 7. According to the company, the Union has 

instigated this change in pilot behavior in order to exert influence on the ongoing CBA 

negotiations. 

Second, Atlas alleges that pilots are now calling in fatigued more often. Id. at 11–15. 

Indeed, according to the company, since February 2016, when the Union notified Atlas of its 

intent to negotiate, the average rate of fatigue calls has nearly tripled. Dkt. 5-103 at 28. 

Third, Atlas contends that pilots are now less likely to volunteer for what is called “open 

time flying.” Dkt. 5-3 at 15–16. Open time flying is the practice of picking up flights that are 

scheduled without an assigned crew, analogous in many ways to overtime and common in the 

international, long-haul cargo scheduling scheme long utilized by Atlas. Id. at 15–16. The CBA 

does not require pilots to volunteer for open time, but Atlas says it has had more and more 

trouble filling the spots. Id. at 16. In support of this contention, the company points to statistical 
18 

evidence that the proportion of unfilled open time trips each month has—at least on average—

increased dramatically since February 2016. Dkt. 5-103 at 32. 

Fourth, Atlas argues that the Union’s BOOT campaign has resulted in far fewer 

departures at the time aircraft are actually loaded and ready to 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 scheduled departure time has reduced its margin for error with respect to 

later, unexpected delays, especially when done in concert with slower taxiing (something Atlas 

also alleges it has observed). Id. at 19–20. In support of its contention that the Union is to 

blame, Atlas points to statistical 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 estimated departure time rose at a corresponding rate. Dkt. 5-103 at 38. 

Fifth, the company asserts that pilots have increased the number of maintenance writeups they are making, including demanding that minor issues be corrected prior to departure 

rather than flying with open maintenance issues that do not affect the safety of the aircraft. Dkt. 

5-3 at 20–21. 

Finally, Atlas contends that pilots have begun refusing to fly because of noncompliance 

with the CBA’s crew meal provisions, whereas they previously accepted 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 over 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 three general tacks. First, it 

disputes the statistical analysis offered by Atlas, and it offers its own expert who reaches 
19 

different conclusions. See Dkt. 31-3. Second, it argues that any changes revealed by the data are 

the result of other causes unrelated to the ongoing CBA negotiations. It argues, for example, that 

changing regulations, safety awareness, and crew compositions have led to the increase in 

fatigue calls, and it offers declarations from pilots contesting 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, including Federal Aviation 

Administration (“FAA”) “regulatory flight duty time limits and rest requirements.” Dkt. 31-2 at 

28. Third, it suggests that any changes that can actually be traced to the Union’s 

communications are affirmatively permitted by the CBA, and thus cannot constitute a violation 

of the status quo. That is, the Union is merely requiring that Atlas abide by the existing contract; 

the SHOP campaign has not sought to shift the playing field, but 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 agreement in June 2017 on a 

negotiating protocol called the “Negotiation Process to Facilitate Completion of Collective 

Bargaining Negotiations,” which led to a resumption of formal negotiations on July 6, 2017. 

Dkt. 5-3 at 6–7. The lawsuit in the Southern District of New York seeking to compel the Union 

to accept binding arbitration as to the contents of the new CBA remains pending, however. 

On September 25, 2017, Atlas filed the present suit, Dkt. 1, and simultaneously moved 

for a preliminary injunction, Dkt. 5. The Court held a scheduling 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); Minute Entry (Nov. 1, 2017); Minute Entry (Nov. 2, 2017). The 

parties agreed to offer their direct testimony in declarations, which the witnesses summarized 
20 

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 witnesses regarding both their live testimony and their 

declarations. Where the opposing party waived cross-examination, the witnesses were permitted 

to rest on the written declarations alone. 

Following the evidentiary hearing, the parties submitted post-hearing briefs, Dkt. 49; Dkt. 

50, and proposed findings of fact, Dkt. 47; Dkt. 48. The Union concurrently filed a motion to 

dismiss for lack of subject matter jurisdiction. Dkt. 51. Atlas responded on November 14, 2017, 

Dkt. 52, and the Union filed its 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 relief that it seeks—that is, an injunction barring the Union from encouraging 

its members to engage in a slowdown designed to influence the ongoing contract negotiations. 

The answer to that question turns on the meaning and application of both the NLGA and the 

RLA. As noted above, the NLGA was enacted to curtail the jurisdiction of federal courts to 

issue injunctions against labor unions. See Int’l Ass’n of Machinists v. Street, 367 U.S. 741, 772 

(1961). Section 1 of the Act declares that “[n]o court of the United States . . . shall have 

jurisdiction to issue any restraining order or temporary or permanent injunction in a case 

involving or growing out of a labor dispute, except in strict conformity with the provisions of” 

the NLGA. 29 U.S.C. § 101. Section 4, then, “enumerates specific acts that shall not be subject 

to any restraining order or injunction,” including “‘[c]easing or refusing to perform any work or 

to remain in any relation of employment’” and “‘[g]iving publicity to the existence of, or the 

facts involved in, any labor dispute . . . by any method not involving 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 RLA authorizes federal courts to enjoin unions and 

employers from engaging in practices that violate the RLA’s status 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 [for which] the[] status quo provision[] is properly invoked is to 

preserve and [to] maintain unchanged those actual, objective working conditions and practices, 

broadly conceived, which were in effect prior to the time the pending dispute arose and which 

are involved in or related to that dispute.” Shore Line, 396 U.S. at 153. This obligation 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 provisions 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 Norris-LaGuardia Act cannot be read 

alone in matters dealing with railway labor disputes” and that “[t]here must be an 

accommodation of that statute and the 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 found in the distinct purposes of the NLGA and the RLA: the NLGA 

was enacted to preserve the ability of unions to employ the type of “economic power” that “is 

vital to collective bargaining,” while the RLA established alternative processes for reaching 

compromises in the railroad and airline industries. Id. at 40–41. As a result, when the provisions 
22 

of the NLGA and the RLA conflict, “the specific provisions of the Railway Labor Act take 

precedence over the more general provisions of the Norris-LaGuardia Act,” and federal district 

courts have jurisdiction to issue those injunctive decrees that are 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 reasons 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, the status quo obligation does not 

apply. Because self-help is generally permissible in minor disputes, and Atlas, in any event, has 

not initiated an arbitration regarding the parties’ dispute, the Union contends that nothing in the 

RLA conflicts with—or displaces—the NLGA’s restriction on the Court’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 failed to comply with various procedural requirements contained in 

the NLGA; that those procedural requirements do not conflict with the RLA; and that the 

company’s lack of strict compliance with those requirements divests 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 that, as a result, the status quo obligation does not apply. A 

major dispute is one that “arises out of efforts to form or change a collective bargaining 

agreement.” Eastern Air Lines II, 869 F.2d at 1524. It “concerns changes in ‘rates of pay, rules, 

or working conditions,’ 45 U.S.C. § 151a(4), and relates to ‘the formation of [a] collective 
23 

bargaining agreement[] or efforts 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 dispute, in contrast, turns on “the proper 

meaning or application of an existing [collective bargaining] agreement.” Eastern Air Lines II, 

869 F.3d at 1524. It “contemplates the existence of a collective bargaining agreement,” Elgin, J. 

& E. Ry. v. Burley, 325 U.S. 711, 723 (1945), and “may be conclusively resolved by interpreting 

the existing agreement,” Consolidated Rail, 491 U.S. at 305. In short, “major disputes seek to 

create contractual rights, minor disputes to enforcement them.” Id. at 302. 

As the plaintiff in this action, Atlas is entitled to some leeway in how it defines the 

dispute that it brings to the Court; the starting point is the wrong that Atlas contends it is 

suffering. That wrong, as Atlas describes it, is the Union’s concerted 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 negotiations. 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 quo obligation. The company, 

moreover, builds on this starting point by disavowing any dispute with the Union—at least for 

purposes of this case—about the meaning or application of the existing CBA. Dkt. 49 at 21 

(quoting Elgin, 325 U.S. at 723). It does not, for example, premise its claim on an allegation that 

the Union is acting in violation of the CBA or that the CBA authorizes the relief that it seeks. 

Rather, according to Atlas, its claim is based exclusively on the status quo obligation contained 

in the RLA and the contention that 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 “founded upon . . . insubstantial grounds, 

. . . honoring [its] characterization” could “undercut” the “the proper functioning of the [RLA].” 

Id. (citation omitted). Here, however, Atlas backs up its characterization of the dispute with 

substantial evidence that the Union has encouraged its pilots to 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 members on February 2, 2016, days before the Union served its 

Section 6 notice and after preliminary negotiations had begun, Captain Kirchner and other 

members of the Atlas Pilots’ Executive Committee unambiguously tied the Union’s alleged 

slowdown to the CBA negotiations. In the words of one member of the Executive Committee, 

“the only way we’re going to get to the next contract is if we stop helping the Company and start 

helping the Negotiating Committee.” Dkt. 29-1 at 3 (1:12–15). The same member of the 

Executive Committee also told the member pilots: “The most important [thing] we can advise 

everybody on the call today is stop helping the Company. You’re not a travel agent. You’re not 

a hotel clerk. You’re not a transportation service. The minute we start doing our job and our job 

only, that will bring more pressure on the Company to stop their 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 counterintuitive to operating our 

business. But it’s the only way that our negotiators are going to have the leverage as we keep the 

pressure on, stopping . . . helping 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 the 
25 

negotiating table. And every time they out-negotiate you by getting you to violate the CBA and 

getting you to do their job for them, they win at the negotiating table.” Id. at 12 (10:15–20). 

Second, in late June 2016, a Union leader began an ATAM by informing members that 

the Union was approaching “the most critical time yet for our group. That time is the approach 

of the amendable date of our current Collective Bargaining Agreement, or the CBA. And while 

the vast majority of you have shown our particular giant how we can SHOP and BOOT and even 

buckle down and say, first you pay me, there are still some others who just don’t seem to get it.” 

Dkt. 5-24 at 2 (1:20–2:6). During that 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 CBA. 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, indeed. Your [Executive Committee] also wishes to remind 

you that your adherence to the [existing] CBA and all the things each and every one 

of you are doing daily are having a tremendous 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 contract 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, you 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 industry-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 desire. 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 only honor the 

CBA every day and on every flight, but also hold management accountable. 

Dkt. 5-66 at 4. 

Many other communications in the record sound the same theme: Union members 

should strictly apply the existing CBA, should not do anything more than is required, should stop 
26 

helping the company, and should not block out early—all for the purpose of providing Union 

negotiators with added leverage in the ongoing contract negotiations. The Court, accordingly, 

finds that the Union and Atlas are involved in what is undeniably a major dispute—that is, 

negotiations over changing the CBA; that Atlas is not seeking to enforce any provision of the 

existing CBA in this case; and that the actions that Atlas does challenge are directed at the 

ongoing CBA negotiations. Although the mere fact that a collective bargaining agreement has 

expired and the parties are engaged in contract negotiations does not “automatically” render 

every dispute between the company and the union a major one, Eastern Air Lines I, 863 F.2d at 

899, the status quo obligation does extend to strikes, slowdowns, and similar tactics employed to 

exert economic pressure on any such major-dispute negotiations, Amtrak, 373 F.3d at 126. 

Atlas, accordingly, is on firm ground in characterizing the present dispute as a major one. 

 The Union disagrees. In its view, this case is controlled by the Supreme Court’s decision 

in Consolidated Rail, and, in particular, by the Court’s admonition that “[t]he distinguishing 

feature of” a minor dispute “is that the dispute may be conclusively resolved by interpreting the 

existing agreement.” 491 U.S. at 305. Indeed, according to the Union, all that is required to 

avoid characterization of a dispute 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 satisfied for two reasons: 

First, the CBA itself bars the Union from engaging in slowdowns and permits the company to 

file a grievance if confronted with such Union action. Second, the CBA can be plausibly 

construed to authorize the conduct that Atlas challenges. Either of these reasons, the Union 

argues, make the dispute a minor one, divesting the Court of subject 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 204 refers to arbitration of . . . those ‘disputes . . . growing 

 . . . out of the interpretation or application of [existing] agreements;’” and “[t]he statutory 

language ‘clearly states’ that the arbitration requirement is jurisdictional.”). 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 different question from the one presented here. In 

Consolidated Rail, Conrail announced a unilateral change in its drug testing practices; while it 

had previously included drug testing in some periodic and return-from-leave physical 

examinations, Conrail decided to include the test in all periodic and return-from-leave 

examinations. 491 U.S. at 300. In that context, the Court grappled with the “close” question 

whether the change in practice constituted a minor dispute—that is, a dispute about the meaning 

and application the existing agreement—or a major dispute—that is, a dispute over what was, in 

effect, an alteration or amendment 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 position that the company’s interpretation 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 existing contract was not “frivolous” or “obviously insubstantial” 

and that, as a result, the dispute 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 short notice; whether the CBA permits such conduct; or whether 

 

2

 The union’s primary argument, which advocated for the creation of a third category of 

disputes, was rejected by the Court. Consolidated Rail, 491 U.S. at 310. 
28 

the Union’s efforts might implicitly effect an amendment to the CBA. Rather, it is about 

whether the Union may engage in a concerted campaign to alter the status quo (by SHOP-ing, 

BOOT-ing and the like) in the midst of what is unmistakably a major dispute (the negotiation of 

a new CBA) in order to apply economic pressure on the company in those negotiations. 

Significantly, the Union has failed to identify any case holding that concerted union activity that 

alters the status quo for the purpose of exerting economic pressure on a company engaged in 

collective bargaining negotiations constitutes a minor dispute. 

Those cases that have considered the question, moreover, are uniform in holding that 

strikes, slowdowns, and similar conduct targeted at an ongoing, major dispute violates the status 

quo obligation contained in the RLA. 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 during the cooling-off period” and that this principle extends to other 

conduct that “has the consequences of a strike.” Air Line Pilots Ass’n, Int’l v. United Air Lines, 

802 F.2d 886, 906 (7th Cir. 1986) (cited with approval in Amtrak, 373 F.3d at 126). Thus, as the 

Seventh Circuit further explained, the RLA’s status quo obligation prevents “[t]he concerted 

refusal of overtime, slow[]downs, sit-ins, strikes and other harassments by [the union and its 

members].” Id. (citation omitted). Other courts have extended this same logic to concerted 

refusals to fly overtime or to volunteer for unscheduled open time, 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 in 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 rules 
29 

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 question is whether 

the Union is orchestrating a slowdown or similar campaign that “grows out of the major 

dispute,” Amtrak, 373 F.3d at 126, and that “is designed to put economic pressure on the carrier,” 

US Airways, 813 F. Supp. 2d at 730. If so, a court may enjoin the campaign. 

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 express prohibition on strikes, 

slowdowns, and concerted refusal to work normal overtime, and Section 20.D of the CBA allows 

the company to file a grievance over the interpretation or application of the existing CBA. Dkt. 

51-1 at 6–10. According to the Union, these provisions show that “the parties clearly 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 therefore be resolved by applying the existing CBA, the Union 

continues, the dispute is a minor one. 

That contention, however, is unconvincing. As an initial matter, it once again ignores the 

substance of Atlas’s claim. Atlas’s claim is not that the Union is violating the CBA, but rather 

that it is violating the RLA by engaging in a concerted campaign to alter the status quo—

regardless of whether the CBA allows or prohibits that conduct. Nor is this a case in which “the 

conduct giving rise to an alleged status quo violation is arguably 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 if a slowdown is unlawful under the CBA and the RLA, Atlas 

can—and therefore must—bring its challenge under the CBA grievance procedure. 
30 

That argument, however, conflates the question whether the dispute is a major or minor 

one within the meaning of the RLA with the question whether Atlas 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 argument is framed, it cannot be 

reconciled with the considered balance that Congress struck in the status quo provisions of the 

RLA. Those provisions were enacted to “to avoid any interruption[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 its claims of misconduct through the grievance and arbitration 

process. That would mean, for example, that if the Union were to respond to the company’s 

latest offer regarding wages and terms of employment with a strike, the dispute would be a minor 

one given the no-strike clause in the CBA. Indeed, under the Union’s theory, the same would be 

true of any slowdown or similar, concerted action. That, however, proves too much. Even if the 

RLA “allows parties to follow their own contractually negotiated 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 jettison the statute entirely and to engage 

in precisely the type of conduct that Congress intended to avoid, see United Air Lines, 243 F.3d 

at 364. 
31 

 Finally, in a variation of its minor dispute argument, the Union 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 may 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 certain pilots violated the CBA by 

blocking out at the last minute or by calling in sick or fatigued. Rather, it is claiming that the 

Union is violating the RLA by encouraging its members to engage in a concerted effort to do 

less—to stop helping out Purchase—in order to obtain leverage in the ongoing contract 

negotiations. That claim is not dependent on whether the underlying conduct is prohibited by the 

existing CBA but, rather, turns on whether the Union has orchestrated a concerted change in the 

status quo to influence 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 overtime was designated as voluntary in the contract does not . . . 

render the concerted refusal to perform it any less a strike.”) (citation omitted). 

The line between major and minor disputes 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 evaluate 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 . . . collective bargaining agreement[s],” Eastern Air Lines II, 869 F.2d 

at 1524, while minor disputes “involve[] a controversy over the interpretation or application of 
32 

[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 are intended to improve the Union’s position in those 

negotiations. We know that Atlas is not seeking to enforce any right 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 contend 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 Court must conclude that the alleged 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 Requirements of the Norris-LaGuardia Act 

Alternatively, the Union argues that, even if the present dispute is a major one, the Court 

still lacks jurisdiction because Atlas has failed to comply with the procedural requirements 

contained in Sections 8 and 7(e) of the NLGA. The Court will address each provision in turn. 

a. Section 8 

Section 8 of the Norris-LaGuardia 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 is involved in the 

labor dispute in question, or who has failed to make every reasonable effort to settle 

such dispute either by negotiation or with the aid of any available governmental 

machinery of mediation or voluntary arbitration. 

29 U.S.C. § 108. Actions to enjoin violations of the RLA are “subject to Section 8” of the 

NLGA because the requirements of that section “further the effectuation 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 with the RLA by ensuring that a party “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 hurdles to seeking injunctive relief. The first hurdle, 

known as the “clean hands” requirement, see id. at 613–14, divests the federal district courts of 

jurisdiction to grant injunctive relief “to any complainant who has failed to comply with any 

obligation imposed by law which is involved in the labor dispute in question,” 29 U.S.C. § 108. 

The Union only gestures at the “clean hands” requirement in its presentation of the evidence, see, 

e.g., Dkt. 31-2 at 16–17, 19–21, 32–33 (describing alleged company violations of CBA), and it 

does not advance the point in its briefs. The Court, accordingly, has no basis to find 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 thus cannot conclude that the 

company’s “unclean hands” divest the Court of jurisdiction to issue a status quo injunction. 

 The argument that the Union actually advances implicates Section 8’s second hurdle to 

granting injunctive relief—that, prior to seeking an injunction, the movant must make “every 

reasonable effort” to resolve the dispute by negotiation, mediation, or voluntary arbitration. 29 

U.S.C. § 108. That requirement echoes the duty found in the RLA that “both parties . . . make 

every reasonable effort to settle a dispute, whether it be major or minor.” Rutland Ry., 307 F.2d 

at 38. Atlas, for its part, does not dispute that it was required to make reasonable efforts to 

resolve the present dispute before applying for an injunction, and it contends that it has done all 

that is required. Dkt. 52 at 18–20. The Union disagrees, arguing that Atlas has fallen short in a 

number of ways: it has failed to take advantage of the CBA’s grievance and arbitration 

procedures to raise its slowdown and concerted refusal to work overtime claims; it has failed to 

seek to discipline any pilots for allegedly abusing the sick leave and fatigue rules or ordered that 

the pilots block out early; it has “never shared any evidence substantiating” its claims with the 
34 

Union; and it has not sought the assistance of mediators provided by the NMB. Dkt. 51-1 at 15–

17. 

In applying the NLGA’s “every reasonable effort” requirement, the Court must once 

again consider how the NLGA applies to cases brought under the RLA. Here, however, the 

tension between the two statutes is less evident, and, indeed, both statutes—at least at times—

share a common goal of “encourag[ing] use of the nonjudicial processes of negotiation, 

mediation and arbitration for the adjustment of labor disputes.” Bhd. of R.R. Trainmen, 321 U.S. 

at 58–59. The D.C. Circuit has recognized that, in most cases, strict enforcement of the NLGA’s 

“every reasonable effort” requirement does “not trammel, but . . . rather further[s] the 

effectuation of the Railway Labor Act, for it ensures compliance by complainant carrier[s] or 

union[s,] which cannot seek an injunction until and unless [they 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 Railway Labor Act [might] override Section 8” and courts must 

balance competing interests, “particularly where . . . the public interest [is] involved.” Id.

Although “the precise requirements of” the Section 8 obligation “vary from case to case, 

there are ‘certain minimum steps’ 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 representatives of 

management should meet with those of labor. Each side should listen 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 party must do 

more than “discharge his legal obligations.” Bhd. of R.R. Trainmen, 321 U.S. at 57. “He must 

also go beyond [those legal obligations] and make all reasonable effort, at the least by the 
35 

methods specified if they are available, though none may involve complying with any legal 

duty.” Id. This includes “the normal” modes “for settlement of labor disputes by the efforts of 

the parties themselves and the aid of agencies adapted specially for the purpose,” including “the 

aid of governmental machinery” provided in the RLA for “mediation and arbitration.” Id. at 57–

58. 

In pressing their respective arguments, Atlas and the Union characterize the relevant 

“dispute” for purposes of Section 8 in very different terms. According to the Atlas, the dispute 

that it was required to make reasonable efforts to settle before bringing this suit was (and is) the 

dispute over whether and how to amend the existing CBA. Dkt. 49 at 25–26. It then argues—

persuasively—that it has made reasonable efforts to settle that dispute. Most notably, 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 negotiations are ongoing, Dkt. 48 at 4, and that the Protocol Agreement 

was greeted by the Union as a step forward in the negotiations, Dkt. 28-13 at 4–5 (2:4–3:4). 

Rather than take on this showing of reasonable efforts, the Union contends that the 

relevant dispute can be found in Atlas’s claim that the Union has 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 grievance under the existing CBA, possibly leading to arbitration of 

the dispute. Id. It could have taken disciplinary action against the pilots allegedly involved in 

the slowdown. Id. It could have ordered pilots to block out early, if possible. Id. And, it could 

have provided the Union with more detail to back up its claim that the Union is orchestrating a 

slowdown. Id. Although for different reasons, the Court is unpersuaded by each of these 

contentions. 
36 

As an initial matter, the Court concludes that Atlas’s characterization of the relevant 

dispute is more apt. A similar 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 involving the negotiation of a new collective bargaining agreement, 

and the airline accused the union of staging a slowdown to affect the ongoing negotiations. Id. at 

353. Invoking Section 8, the union argued that the district court lacked jurisdiction because the 

airline had “made no virtually no attempt to resolve the slowdown 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 reasonable effort” to 

settle the labor dispute in question (through negotiation, mediation or arbitration) 

before seeking to enjoin an action by the other party which relates to the dispute. 

It does not require a party who is already engaging in good-faith 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 unions to use such 

actions to extort concessions from the carrier during the negotiation process. Such 

a result would render the union’s duty under 45 U.S.C. § 152, First 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 negotiations that are protected by the RLA’s status quo obligation. 

To the extent the Union is engaged in a slowdown that is targeted at those negotiations, it is 

acting in violation of the RLA, and requiring that Atlas negotiate with the Union about that 

violation of federal law runs counter to the terms and purposes of the RLA. 

More generally, the Court is also unconvinced that Atlas’s failure to file a grievance 

under Section 26.X of the existing CBA bars the company from seeking a status quo injunction. 

As noted above, the D.C. Circuit has recognized that Section 8’s “every reasonable effort” 

requirement is not absolute and that, at times, “the imperatives of the” RLA and the public 
37 

interest may counsel against strict application of Section 8. Bhd. of R.R. Trainmen, 385 F.2d at 

614. Other courts share that assessment. In the words of the Seventh Circuit, “[t]he NorrisLaGuardia Act has never been construed to bar an injunctive remedy when such relief is 

necessary to reach important objectives of federal labor law.” Air Line Pilots Ass’n, 802 F.2d at 

901. Rather, the Court must “weigh the competing equities to determine whether applying 

[S]ection 8’s bar to injunctive relief would serve to further underlying purposes of both the RLA 

and the Norris-LaGuardia Act.” Id.

Here, it is difficult to comprehend how the purposes of the federal labor laws would be 

served by precluding Atlas from seeking judicial intervention until after it files a grievance and 

starts the process of arbitrating its contention that the Union is 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 negotiations in contravention of the 

purpose of the RLA’s status quo obligation. Moreover, one of two 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 contained in the RLA, or Atlas would 

be able to obtain an injunction in aid of arbitration, which would run counter to the NLGA’s 

aversion to judicial intervention in ongoing labor disputes.3

 In short, requiring that Atlas jump 

through additional hoops before obtaining relief from a status quo violation would run counter to 

the purposes of the RLA and would, at best, raise the same type of concern under the NLGA 

raised by the present dispute. 

 

3

 It is uncertain whether Atlas would be able to obtain an injunction in aid of arbitration under 

the governing D.C. Circuit precedent, which authorizes minor dispute injunctions “only when . . . 

necessary to preserve the arbitrator’s ability to decide the dispute.” Eastern Air Lines II, 869 

F.2d at 1520 n.2. 
38 

Finally, to the extent the Court is required to balance the purposes of Section 8 and the 

status quo obligation contained in the RLA, the Court concludes that Atlas has made efforts to 

resolve the slowdown short of litigation. It contacted Union officers in December 2016 and May 

2017 to request that the slowdown be stopped, and counsel for Atlas made the same request of 

counsel for the Union in June 2017. Dkt. 49 at 27. Requiring that Atlas take steps beyond this to 

discipline pilots for engaging in the alleged slowdown would render the status quo obligation 

illusory, because “in virtually every case an employer presumably could take some such 

measures.” United Air Lines, Inc., 243 F.3d at 363–64. And, requiring that Atlas present the 

Union with its evidence that the Union is engaged in a slowdown or order its pilots to block out 

early would do nothing to promote settlement. The Union is presumably aware of what it is and 

is not doing, and the BOOT campaign is just one element of the alleged slowdown. Id. at 417. 

The Court, accordingly, concludes that Section 8 of the NLGA does not present a 

jurisdictional bar to the present suit. 

b. Section 7(e) 

The Union also briefly argues that Atlas has failed to comply with Section 7(e) of the 

NLGA because it has not demonstrated “[t]hat the public officers charged with the duty to 

protect complainant’s property are unable or unwilling to furnish adequate protection.”4

 29 

U.S.C. § 107(e). The plain language of that provision, however, makes clear that it applies only 

in cases involving a potential threat to the complainant’s person or property. Decisions 

 

4

 The Union also contends that Atlas has not complied with Section 7(a) of the NLGA. That 

provision requires, prior to the issuance 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 restrained.” 29 U.S.C. § 107(a). It is unclear whether Section 7(a) applies at all 

to the present dispute given the problems attendant with applying 7(e), but even assuming it 

does, the Court’s ultimate conclusion that a preliminary injunction is proper would decide the 

issue. See Dkt. 51-1 at 13. 
39 

confronting the meaning and scope 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, 2016) 

(“Section 107(e) only applies 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) “inapplicable” in a case not presenting the threat of violence); cf. Green v. 

Obergfell, 121 F.2d 46, 53–54 (D.C. Cir. 1941) (holding that Section 7(e) barred issuance of an 

injunction where plaintiff failed to show officers were unable to furnish “adequate protection” 

against “violence and destruction of property”). As a result, Section 7(e) does not pose an 

independent bar to injunctive relief in this case. 

* * * 

The Court, accordingly, concludes that it has jurisdiction to consider Atlas’s motion for a 

preliminary injunction, Dkt. 5, and will deny the Union’s motion to dismiss for lack of 

jurisdiction, Dkt. 51. 

B. Atlas’s Motion for a Preliminary Injunction 

In the ordinary course, a party seeking a preliminary injunction bears the burden of 

showing that it “is likely to succeed 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 “frequently . . . observed that a preliminary injunction is an extraordinary 

and drastic remedy, one that should not be granted unless the movant, 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. Wright & Arthur R. Miller, Federal Practice and Procedure: 

Civil § 2948 (2d ed. 1995)). The NLGA and RLA, however, introduce two twists on the usual 

rules. First, Section 6 of the NLGA provides that “[n]o officer or member of any association or 
40 

organization, and no association or organization participating or interested in a labor dispute, 

shall be held responsible or liable in any court of the United States for the unlawful acts of 

individual officers, members, or agents, except upon clear proof of actual participation in, or 

actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.” 

29 U.S.C. § 106 (emphasis added). This standard applies to the Court’s consideration 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 alleged ‘unlawful acts.’ It is concerned only with requiring ‘clear 

proof’ that the person or organization charged actually participated 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 of irreparable injury. See

Consolidated Rail, 491 U.S. at 303 (“The district courts have subject-matter jurisdiction to enjoin 

a violation of the status quo pending completion of the required 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) (holding irreparable injury showing 

unnecessary for preliminary injunction under RLA status quo provision); Gate Gourmet, 377 F. 

Supp. 2d at 59–60 (same). As other courts have done, however, the Court will nonetheless 

briefly address the irreparable injury prong out of an abundance of caution. See Davenport v. 

Int’l Bhd. of Teamsters, 166 F.3d 356, 367 (D.C. Cir. 1999) (evaluating existence of irreparable 

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 step, Atlas must demonstrate that it is likely to succeed on 

the merits of its claim that the Union has violated the RLA’s status quo requirement. See 45 
41 

U.S.C. §§ 152, 156. In order to satisfy the further requirements 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 turn each of the alleged violations 

that Atlas has proffered. 

a. Short-Notice Sick Calls 

Atlas asserts that, since late 2016, a pattern has emerged of Union members calling in 

sick at the last moment with far greater frequency than during the preceding three years, Dkt. 5-

103 at 23, and it posits that they have done so at the instigation of the Union, Dkt. 5-2 at 25. 

Calling in sick on short notice—that is, on the day the pilot is scheduled to fly—is more likely to 

disrupt company operations than calling in one or more days ahead of time, because a 

replacement crew member is often 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 Atlas, the resulting delays have led 

to missed shipping deadlines, have left passengers stranded, and have prompted customer 

complaints, thus causing Atlas both economic and reputational harm. Dkt. 5-3 at 8–10. The 

parties generally agree that short-notice sick calls are disruptive. They disagree, however, about 

whether they have materially increased since the CBA negotiations commenced and, if so, 

whether the Union’s SHOP campaign 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 that the rate of short-notice sick calls has deviated from the 

historical rate—that is, that there has been a change in the status quo—and must then show by 

clear proof that the Union is responsible for that change. 

Atlas initially offered both anecdotal and statistical evidence to support its contention that 

short-notice sick calls have (1) disrupted 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 evidence). 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 referenced in complaint describing incorrectly coded sick call); 

Dkt. 31-24 (declaration of crew member involved in scheduling rebutting several of the claimed 

examples through reference to scheduling data); Dkt. 31-25 (declaration of crew member 

referenced in complaint describing 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 company conceded at the hearing that it has not, in fact, produced 

any specific examples of abuse. Hearing Tr. Day 1 (34:25–35:20). 

Atlas’s principal argument, however, does not turn on its anecdotal accounts of shortnotice sick calls, but rather focuses on statistical evidence of a material deviation from the 

historical status quo starting on October 1, 2016. That statistical evidence shows that between 

October 1, 2015 and September 20, 2016, only 13.8% of sick calls occurred on the same day the 

crew member was scheduled to 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 short notice never dropped below 

18%, and in all but one month was 20% or higher. Id. at 24, Ex. 5. Based on his analysis of this 

data, Atlas’s expert, Dr. Darin Lee, concluded that the increased percentage of same-day sick 

calls beginning on October 1, 2016, was “not the result of random statistical variation, but rather, 

a concerted change in behavior by Atlas’s pilots aimed at disrupting the Company’s operations.” 

Id. at 26. The latter half of that statement, which addresses the subjective motivation of the 
43 

pilots, extends beyond the scope of what Dr. Lee’s analysis could have revealed. The Court 

finds, however, that the data and Dr. Lee’s conclusion regarding the statistical significance of the 

change show that Atlas is likely to succeed in proving that Atlas pilots have called in sick on 

short notice more frequently since late 2016 than they did in the preceding three-and-a-half 

years. 

The Union, for its part, does not challenge Atlas’s showing that short-notice sick calls 

have increased in frequency since late 2016 and, instead, argues that the total number of sick 

calls has remained constant; that the increase in short-notice calls does not coincide with the 

timing of the Union’s Section 6 notice; and that the increase in short-notice calls can be better 

explained as the result of an increase in the total number of Atlas 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 suggests that “[p]erhaps it would be more appropriate to 

measure total pilot sick calls per departure to get a better sense of changes in pilot behavior.” 

Dkt. 31-3 at 31. That, however, simply side steps Atlas’s claim that there has been a marked 

increase in the percentage of short-notice sick calls—as opposed to an increase in total sick 

calls. Mr. Akins’s analysis does demonstrate that the number of sick calls per departure 

remained relatively constant, even though the proportion of sick 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 reasonable suspicions of abuse; that is, the Court is left 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. Lee’s use of October 2016 to mark the onset of the change 

in behavior instead of February 2016, which is when the Union served its Section 6 notice. Dkt. 

31-3 at 35. He explains: 

[T]his time-line does not correspond with Dr. Lee’s narrative of Union[-] 

orchestrated behavioral changes beginning in February 2016. As can be seen, the 

number of pilot short-notice sick calls drop[ped] during the first seven months after 

February 2016 below the level experienced in the year prior, and was generally 

increasing in the time prior to February 2016. 

Id. That contention, however, does not disprove Dr. Lee’s assertion that the Atlas pilots have 

engaged in a statistically significant change in the status quo—it just raises a question about 

whether the Union prompted the change in order to exert pressure on the ongoing negotiations. 

And, as discussed below, there is substantial evidence that the Union intentionally implemented 

a don’t-fly-sick campaign to correspond with the 2016 holiday season to maximize its disruption. 

Having found that Atlas has demonstrated a statistically significant increase in the 

percentage of sick calls made on short notice, the next question is whether Atlas has met its 

burden of providing “clear proof” that the change occurred at the Union’s instigation. Although 

a close question, the Court concludes that Atlas has also met this 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. Standing alone, those exhortations might not carry the day. But, when 

read carefully and in light of the 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, APA Teamsters Local 1224” on September 7, 2017. That message 

told crew members: “As we find ourselves in the midst of a period of increased friction and 

hostility, we remind everyone to make absolutely certain that you are fit for duty each and every 
45 

time you report to work. Please, 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 “negotiations update and leadership 

webinar,” in which both Captain Kirchner and Chris Knox, the Union’s “negotiations chair” 

appeared. Dkt. 44-14 at 2 (1:6–14). The Union’s Communications Chairman, Captain Griffith, 

started the conversation by noting that “[t]he hot topic, obviously, 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 added). The remark is followed 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 the 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 in the fourth quarter. But in order 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, Captain Kirchner does not take issue with the pilot’s 

statement—made to all members who participated in the conversation—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, and BOOT more generally. Dkt. 5-3 at 25. The first of these 

began with the host saying that he called in sick last night for a flight from Huntsville to 

Luxembourg. Dkt. 5-10 at 2 (1:7–8). He then pulls what appears to be a thermometer from the 
46 

corner of his mouth and says in a spoofing tone: “Oh no. It’s 105. Is that bad?” Id. (1:10–11). 

Later in the same video, the host—again in a parodic tone—says that he is getting hot, and he 

pulls a large rubber hot water bottle out of his shirt. Id. (1:15–16). Although arguably merely 

intended to entertain, the message concludes with the slogan common in the Union’s 

communications discussing SHOP and 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 expressly told its members that they should abuse their 

right to take sick leave. But, it is clear that the Union understood the risks of delivering such an 

explicit message. See, e.g., Dkt. 27-4 at 44 (42:3–19) (describing sick-out orchestrated by a 

different union against a different 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 combination with evidence of the union’s coded [or less than explicit] 

communications to its members to engage in an unlawful job action.” 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 combined with statistical evidence. Id. 

The Court, moreover, must consider the “content and tone” of the 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 statistics, and the overall context satisfy the clear proof standard. 

Finally, the references to not flying sick must be placed in the 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 increase in the percentage of B-767 pilots calling in sick. 

Dkt. 5-3 at 10. During this period, the proportion of B-767 pilots 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 in the corresponding periods in 2015 and 2014. Dkt. 5-103 at 71–72. 

The 2016 holiday sick-out, moreover, took place at the same time that the Union was picketing 

Amazon and running an online advertising campaign questioning whether 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 campaign noted that Amazon “Prime Air 

will operate with 40 planes leased from” Atlas and another company, and it urged consumers to 

“[g]ive one star for Amazon Prime Air and tell Amazon executives to make sure its contracted 

pilots have a fair contract to ensure 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 telling pilots not to fly sick—and the evidence of a significant 

increase in short-notice sick calls—must be understood in light of 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 appeals that its members stop helping the company in order to aid 

in the ongoing negotiations that its often contemporaneous pleas that members not fly sick are 

also been intended to apply pressure on the company in those negotiations. And, when the 

Union’s statements are considered in light of the otherwise-unexplained significant increase in 

the rate at which Atlas pilots have called in sick on short notice, the Court is left with little doubt 

that the Union has encouraged the change in the status quo. 

b. Fatigue Calls 

Atlas also alleges that, at the Union’s urging, pilots have called in fatigued—and thus 

unable to fly—with greater frequency since the Union served its Section 6 notice. See, e.g., Dkt. 

5-103 at 27. According to Dr. Lee, Atlas averaged only 5.7 fatigue calls per 1,000 active pilots 
48 

on a monthly basis between July 2014 and January 2016. Id. That average, however, increased 

to 16.3 fatigue calls per 1,000 pilots between February 16, 2016 (the date of the Section 6 notice) 

and August 2017. Id. Dr. Lee further attests that in eight of the last eighteen months, the 

monthly rate has exceeded 17.8 fatigue calls per 1,000 pilots and that “the probability of 

observing eight or more months since the Union sent its Section 6 notice with ‘outlier’ rates of 

pilot fatigue is less than one-in-600,000.” Id. And, finally, Dr. Lee posits that the increased rate 

of fatigue calls cannot be attributed to the company’s expansion, to changes in the FAA rules 

governing fatigue, or to higher rates of pilot utilization. Id. at 27–28. He notes, for example, that 

the FAA “began requiring commercial airlines to have FAA[-]approved 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 has increased since February 2016, but it contends that the upward 

trend in fatigue calls began in early 2015—well before the Union 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 Union’s view, the factual backdrop is more complicated 

than Atlas suggests. The Union argues that the increase has been far from steady—and, indeed, 

that there was a dramatic drop in fatigue calls in May and June 2016, Dkt. 48 at 18; that a joint 

labor-management Fatigue Risk Management Committee “accepted” all of the fatigue calls at 

issue, id. at 15; that each of the fatigue calls that Atlas questioned in its opening brief were, in 

fact, legitimate, Dkt. 50 at 18; that the increased percentage of new pilots working for Atlas has 

contributed to the increase in fatigue calls, id. at 20; that scheduling problems and other 

management failings also contributed to the increase, Dkt. 31-2 at 25–26; and, finally, that 
49 

changes in the law governing pilot fatigue and implementation of 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 significant 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 aircraft that killed fifty 

people, Congress enacted the Airline Safety and Federal Aviation Administrative Extension Act 

of 2010, Pub. L. No. 111–216, 124 Stat. 2348 (codified in scattered sections of I.R.C. and 49 

U.S.C.). Among other safety measures, that law required the FAA to issue enhanced regulations 

“to address problems relating to pilot fatigue,” § 212(a)(1), and required air carriers to “submit to 

the [FAA] for review and acceptance a fatigue risk management plan for the carrier’s pilots,” 

§ 212(b). In response, the FAA issued a final rule on January 4, 2012, adding a new regulation 

relating to pilot fatigue on 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—requires that airlines adopt fatigue risk management plans and 

provide their pilots with fatigue training, and it imposes a mandatory duty on pilots to report 

when they are too fatigued 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 period rested and prepared to perform his or her duties,” and no airline 

“may assign and no flightcrew member may accept assignment to a flight duty period if the 

flightcrew member has reported for a flight duty period too fatigued to safely perform his or her 

assigned duties.” 14 C.F.R. § 117.5. The FAA, moreover, declined 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 required that each pilot “utilize the information provided during his 
50 

or her statutorily-mandated fatigue training to self-assess whether he or she feels well-rested 

enough to safely complete his or her assigned” flight duty period. 77 Fed. Reg. at 349–50. 

Determination of “fitness for duty” is, accordingly, an inherently individual, subjective inquiry. 

The Union suggests that the increase in fatigue calls is most likely attributable to the new 

regulations for two reasons. First, Atlas is one of only two airlines 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 task of applying distinct fatigue-mitigation requirements depending on 

whether each particular flight is subject to the Part 121 rules governing cargo flights or the Part 

117 rules governing passenger flights. That task is complicated, moreover, by the fact that—

unlike any other airline—Atlas pilots “are required to fly mixed operations during [a single] 

monthly schedule[].” Dkt. 31-4 at 9. “In other words, Atlas pilots are required to operate ‘all 

cargo’ flights for one or more consecutive days of their monthly 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 nights, during which they are subject to the new . . . 

Part 117 rules.” Id. Second, the new rules did not take effect until January 2014, and, since 

then, Atlas pilots have become more aware of and comfortable with 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 increase in fatigue calls over the past few years is 

attributable to a Union-sponsored slowdown, the Court finds that the Union has offered an 

alternative explanation that is both equally plausible and consistent with the strong public 

interest in preventing pilots from flying while fatigued. As an initial matter, it is clear from Dr. 

Lee’s own graph that the monthly rate of fatigue calls has been on 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 statistical analysis and does not represent the “best fit” for the data, it 

nonetheless captures the self-evident upward trend. And, Dr. Lee’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 other cutoff dates that Dr. Lee might have chosen. 

More importantly, a reasonable argument can be made that the upward trend tracks the 

implementation and acceptance of the new FAA fatigue rules and Atlas’s FRMP. The FAA 

issued its final pilot fatigue 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 Carlson acknowledged, however, efforts to educate 

Atlas pilots about recognizing and mitigating pilot fatigue have continued from 2013 to 2017. 

Hearing Tr. Day 2 (79:21–80:12). In 2015, moreover, Atlas implemented a requirement that 

when pilots “sign off on their flight plans,” they also “sign off and . . . initial that they are fit for 
52 

duty.” Id. (196:20–197:7). In addition, according to Captain Christopher Lang, one of Atlas’s 

FRMP instructors, the company and its pilots have “constantly developed the program and 

increased the training on—the awareness training on fatigue.” Hearing Tr. Day 3 (96:8–17). 

Captain Lang further testified that, “[p]articularly since February of this year, [they have] 

increased the [in-class] training,” and that they added a “fatigue 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 Lang testified that Atlas’s program director for the FRMP appeared 

at a check airmen’s meeting in August of this year and, after about half of the pilots present 

conceded that they had flown fatigued, he “encouraged [those present] to call in fatigued more 

often; to improve flight safety and not [to] fly when . . . fatigued.” Id. (98:7–99:12). 

Nor is it surprising that it has taken time and an ongoing effort to address the problem of 

pilot fatigue. As a number of witnesses 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 assessment of pilot fatigue under Part 

117 is subjective and requires a degree of self-awareness further supports the Union’s contention 

that change was not immediate, but, rather, required time and a shift in culture. 

The Union, moreover, also reasonably attributes the increase in fatigue calls on a change 

in the demographics of the Atlas pilot workforce. As Captain Kevin McCabe testified, 

“approximately 50% of the [current] Atlas pilot workforce was hired on or after January 1, 2015, 

and 30% of the workforce has less than two years seniority with Atlas.” Dkt. 31-4 at 11. “Many 

of these new pilots are young” and “were previously employed by domestic commuter airlines.” 

Id. As a result, according to Captain McCabe, “many of these new[-]hire pilots did not work in 

the industry when calling out fatigue was considered and treated unfavorably,” and they “are 
53 

more comfortable participating within the industry’s new fatigue and passenger hours of service 

rules.” Id. at 11–12. 

The Court recognizes that the increase in fatigue calls—particularly when considered in 

light of the SHOP campaign and similar efforts—may be, at least in part, a product of the 

Union’s effort to apply pressure on the company. On the current record, however, the Court 

cannot find that Atlas has met its burden. 

c. Open Time Flying 

Atlas next alleges that the Union has violated the RLA by encouraging pilots to decline to 

volunteer for open time flying assignments. Open time flying is a common feature of airline 

operations, see Delta Air Lines, 238 F.3d at 1302, and begins with a flight that lacks a crew. 

This can occur for a variety of reasons, such as sick calls, fatigue calls, delays due to 

maintenance issues, last-minute customer requests, or lack of sufficient 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 available each day. Dkt. 5-3 at 15–16. These pilots are required to be 

available to fly, but will not necessarily be close enough to cover a particular flight. Dkt. 5-3 at 

16. In addition, there are occasions when the reserve is already fully utilized. Id. That leads to 

the second method of staffing open time: volunteers. Atlas sends out requests for volunteers for 

a given flight, and available pilots, who are offered premium pay to cover the open time, are then 

given the opportunity to bid on the available flight. Dkt. 5-3 at 16. When multiple pilots bid on 

the same flight, the open time trip is given (or, at least, should be given) to the pilot with greatest 

seniority. Id. It goes without saying that unfilled open time damages the company, which 

cannot complete the flight as scheduled. 

Atlas has presented convincing evidence that, since the Union served its Section 6 notice, 

(1) the company has faced greater difficult in filling open time trips, and (2) it has been unable to 
54 

fill a greater proportion of its open time trips. Dr. Lee measured the difficulty in filling open 

time trips by comparing the number of calls needed to fill each open time trip over time. Dkt. 5-

103 at 30. As explained in his declaration, in 2015, Atlas’s schedulers made an average of one 

and a half calls to fill each open time trip. Id. at 29. Over the course of that 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 unfilled open time trips between January 

2015 and February 2016, when the Union served its Section 6 notice, never rose above 5%. Id.

at 31. In contrast, there have been eleven months since February 2016 when the percentage of 

unfilled open time trips has exceeded 5%. Id. As reflected in the graph 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 increase 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 month between January 2015 and 

February 2016 to an average of only 73 per month from March 2016 to August 2017. Id. at 31. 

 The Union contends that the data reflected in Exhibit 9 does not establish a status quo 

violation because the spike in unfilled trips did not occur until September 2016, seven months 

after the Union served its Section 6 notice. As explained above, however, the type of precise 

temporal correspondence that the Union demands is neither required nor what one would 

reasonably expect to occur; there 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 sure, Atlas bears the burden of demonstrating that the Union is 
56 

responsible for the changes that have occurred, but that is a separate inquiry that is addressed 

below. 

 The Union’s expert, Mr. Akins, suggests a number of alternative theories for the dramatic 

increase in the percentage of unfilled trips. He posits, for example, that the increase corresponds 

to a decrease in the number of open time trips. Dkt. 31-3 at 45–46. The theory that a drop in 

supply explains why the remaining available slots went unfilled is difficult to fathom. Dkt. 35 at 

38. Mr. Akins, however, make an effort to do so, suggesting that it is “possible” that “the 

number or proportion of desirable trips” decreased or that pilot 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 comfortable commercial flights. Dkt. 31-3 at 47. But, both of these 

theories are more supposition than evidence; even beyond the qualifiers 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 possibilities 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 percentage 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 consider this issue in light of the 

Union’s more general SHOP campaign, which has urged Atlas pilots to turn down the “quick 

buck” and “to stop doing the Company favors” in order to give the Executive Committee and 

Negotiation Committee “the leverage and power they need.” Dkt. 5-11 at 2 (1:17–21). Picking 

 

5

 In its post-hearing brief, the Union acknowledges “increased . . . reluctance to pick up 

additional flying from open time.” Dkt. 50 at 19. It focuses its argument instead on the role of 

the Union in fomenting that reluctance, discussed below. 
57 

up on this theme during an October 14, 2016 ATAM, Captain Griffith provided pilots with “a 

short list of some of” the things 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 it needs to score points 

during talks and negotiations with Purchase. But perhaps we could agree, we have 

learned what you are not required to do as well and still comply fully with our 

woeful and much maligned CBA. Understanding is but the first step 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 execution and doing the 

very simple things our Union asks of us is the key. The very key 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, 2017 conference call, for 

example, a pilot asked about “solidarity” and, in particular, whether the Union calls pilots who 

pick up open time trips to tell them “to get on the program.” Dkt. 28-13 at 10 (8:4–11). Captain 

Kirchner replied that the Union is not allowed to reprimand pilots 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 anybody 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. And like you point 

out, the vast majority of our crewmembers are onboard, and they understand that small sacrifices 

. . . here now will lead to large rewards down the line. The vise is tightening here every day as 

we move towards the fourth quarter.” Id. at 10–11 (8:21–9:5). Captain Griffith echoes this point 

later in the same call. After explaining that the decision whether 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 to put pressure on 

the company—not to hurt the company, but put pressure on them to get them back 
58 

to the table—to deny them virtual extra crewmembers—because, remember, every 

time you outbase or every time you [volunteer], you are virtually 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 month, Captain Kirchner once again reinforced this point 

during a Crew Call. Dkt. 28-14 at 3–5. There, a panelist asked whether “picking up open time 

flying harm[s] . . . our ability to negotiate,” and Captain Kirchner responded, “when you go the 

extra mile for them, that just solidifies and helps them in what 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 negotiations. Dkt. 28-15 at 5 (3:1). They responded: 

You need to follow the CBA, and, you know, look at your job from a standpoint of 

do you enthusiastically show up for work and go above and beyond what’s required 

to help Atlas out, or are you doing just the bare minimum 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 don’t believe they make 

a difference, but they really do. Each and every one of you helps 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 crashing in. They are putting 

this together with scotch tape and baling wire. (Captain Kirchner). 

Id. at 5–6 (3:9–21, 3:22–4:5) (emphasis added). Later in the same call, Captain Kirchner further 

explained: “We’re watching some trips cancel, some trips delayed;” “You are all watching a 

huge amount of open time;” and “unfortunately some of our pilots are falling over backwards to 

help [the company] out of a jam.” Id. at 8 (6:12–13). And, although once again noting that the 

decision whether to fly open time is a personal one, Captain Kirchner told the pilots that “[i]t 

certainly is helpful when you don’t,” id. at 9 (7:10–11), and that if you decide you want to spend 
59 

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 followed up Captain 

Kirchner’s comments with his own statement 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 record and in light of the 

Union’s recognition of the risk of making more explicit assertions, the Court is left with little 

doubt that the increased difficulty that Atlas has had in filling 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, “blocking out” refers to the time at which a pilot releases the 

parking brake and begins taxiing. Dkt. 5-2 at 35. The issue before the Court revolves around 

when blocking out occurs relative to a flight’s estimated departure time (“ETD”). Atlas argues 

that the Union has encouraged pilots to “Block Out On Time” (or, to use the Union’s shorthand, 

to “BOOT”) and that this campaign has altered the status quo in violation of the RLA. The 

company states that the ETD represents “the latest a flight is expected to block out” and that, in 

the past, pilots frequently blocked out as soon as their aircraft were “loaded and ready.” Dkt. 5-2 

at 34 (emphasis added). The Union disagrees with this characterization and argues that the ETD 

is the time a flight is expected to block out. Dkt. 31-2 at 27–28. 

Atlas must first demonstrate that it is likely to prevail on its contention that, since the 

Union proffered its Section 6 notice, 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 leverage in negotiations) constitutes prima facie evidence of a status 

quo violation. Dkt. 47 at 25. Because Atlas bears the burden of proof and because it is possible 
60 

has carried this burden. The company has offered credible statistical 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 out prior 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 Union served its Section 6 notice, 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 only minimal weight to those 

assertions in determining whether the pilots have, in fact, altered their behavior in response to the 

campaign. 
61 

Dr. Lee also testified regarding a significant shift in the distribution of departure times 

relative to the ETD, again showing a dramatic increase in the percentage 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 are presented in the exhibit below. 

Id. at 40, Ex. 13. Among other significant variations, the percentage of flights blocking out 

twenty-five or more minutes before the EDT dropped from 12.1% to 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 performance. Mr. Akins suggests that Dr. Lee’s use of departure time 
62 

raises a red flag and may signal that Dr. Lee chose this measure because an analysis of arrival 

times did not produce results supportive 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 compelling reason to use departure 

times relative to ETD: the Union’s BOOT campaign is focused on departure times. Dr. Lee 

measured whether the Union’s campaign, which urged pilots to wait 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 relative to ETD is 

meaningless because Atlas’s customers do not care about when a flight departs, they care about 

when it arrives. Dkt. 31-3 at 59. The premise of that contention is itself suspect. As Captain 

Carlson testified, unlike commercial passenger flights, “there is no need for a cargo flight . . . to 

wait once loaded and ready,” and “[p]rompt departures reduce airport and hub congestion for 

Atlas’[s] customers.” Dkt. 5-3 at 17–18. But, more importantly, 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 time by taxiing or flying faster. 

Nor is it plausible to suggest that waiting ten, fifteen, or twenty-five minutes longer to block out 

would not—at least on average—affect the time of arrival of those same flights. And, in any 

event, Atlas has credibly rebutted the Union’s suggestion that the BOOT campaign is 

inconsequential (or, to put it in 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 estimated departure time, and instead 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 of 
63 

unexpected delays due to weather, congestion, and other issues, and early arrivals that provide 

crew members additional time to make connections and to prepare for their next assignment. Id. 

The Union raises the possibility that Atlas could avoid any disruption 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 this to better serve Amazon. Hearing Tr. Day 2 (87:22–24). But, 

as Captain Carlson explained, that crutch does not entirely diminish the harm caused by the 

BOOT program. First, when a flight is scheduled fifteen minutes earlier, the company loses the 

benefits, discussed above, of a departure prior to the ETD, replacing a buffer prior to the 

scheduled arrival with dead time at the departure gate. Second, Captain Carlson testified that the 

staffing costs of such an arrangement would be greater than those incurred under the departure 

model common prior to the BOOT campaign. Id. (87:25–88:3). Third, Atlas’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 reputational 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 obligation 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 work slowdown through its own actions has nothing to do with the 

[union’s] enforceable duty to do everything reasonable to end it,” 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 Court, accordingly, finds that a change in the status quo in 

violation of the RLA has occurred. 
64 

The Court also finds that Atlas has carried it burden of showing by clear proof that the 

Union bears responsibility for this change in the status quo. The Union does not dispute that it 

has enthusiastically encouraged pilots to block out exactly at the ETD—nor could it. See, e.g., 

Dkt. 31-2 at 27–28; Hearing Tr. Day 3 (76:1–15); Dkt. 29-3 at 25 (23:16–19) (March 22, 2016 

Crew Call) (“Stop helping out Purchase. Do your job. Follow the 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 our 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 leverage to our Negotiating Committee 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) (discussing how BOOT-ing may impact Atlas’s performance 

bonuses on its contracts); Dkt. 5-22 at 2 (2:4–6) (June 20, 2016 CBA Chat) (“By blocking out on 

time, you are a shopper.”). The Union’s continued and unequivocal acknowledgment that it has 

encouraged BOOT-ing leaves clear proof of Union involvement. 

Rather than contest this premise, the Union suggests (or at least seems to suggest) that the 

BOOT campaign was not designed to exert economic pressure on the company in the ongoing 

CBA negotiations, but was intended to serve other ends. The Union notes, for example, that a 

pilot might run afoul of the flight duty regulations by blocking out early and that Atlas itself 

requires that pilots obtain authorization to block-out more than 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 order to give its negotiators leverage, however, that contention is 

not credible. And, finally, the Union suggests that it has done nothing wrong by encouraging its 
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pilots to BOOT because nothing in the existing CBA requires that 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, misunderstands the RLA’s status quo duty, which does not turn 

on whether Union members are acting in violation of the CBA, but whether they have altered the 

status quo in the midst of negotiating a new CBA and whether they 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 campaign does, and, accordingly, Atlas has demonstrated a likelihood 

of success on the merits with respect to this aspect of its claim. 

e. Pilot Maintenance Write-Ups 

FAA regulations permit aircraft to operate with open maintenance 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 inoperable 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 historically 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 rate at which pilots write up maintenance issues has increased 

since February 16, 2016. Dkt. 5-103 at 50–51. It contends that this increase constitutes yet 

another example of the Union’s SHOP campaign. 

In response, the Union does not dispute that the rate of pilot-initiated write-ups has 

increased, but it submits that the average number of mechanic-initiated 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 aircraft for the two year period from January 2014 through 

December 2015 to an average of 159 per aircraft from January 2016 through August 2017. Id. 

During this same period, moreover, the number of pilot-initiated write-ups increased from 22 per 
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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 perhaps as a result of either covering 

write-ups previously filed by mechanics, or mechanics write-ups decreased as a result of 

increased pilot write-ups.” Id. at 65–66. Either way, the total rate of write-ups actually fell 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 contention that a substitution has occurred is speculative. Dkt. 35 at 40. 

The Court is not prepared to so quickly discount Mr. Akins’s findings. It is true that Mr. Akins 

can only speculate that a substitution has occurred, but it is Atlas, and not the Union, that bears 

the burden of proof, and it has failed to offer evidence suggesting that the increase in pilotinitiated write-ups has had any material 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 this 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 rules for the number and type of these meals based on the 

time of day and length of the relevant flight. Id. These rules, both parties agree, are not always 

followed. Atlas argues that since February 2017, however, “[t]he pilots’ response to catering 

issues has changed dramatically.” Dkt. 5-3 at 21. In the past, pilots would typically respond to 

meal deficiencies by filing a report and requesting meal vouchers to purchase their 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 Union “issued a ‘reminder’ to Atlas pilots that they have ‘the 
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right to insist upon a contractually-compliant crew meal, including, if necessary, requesting that 

the company delay the departure of the flight until the crew meal arrives.” Id. Since then, 

according to Atlas, it “has seen a noticeable increase in the number of crew meal-related flight 

delays beyond normal pilot behavior.” Id. at 21–22. 

In response, the Union provides evidence that the catering dispute began months before 

contract negotiations commenced. The Union’s witness, a member of the Executive Committee, 

explained that a pilot filed a grievance in March 2015 regarding the company’s failure to provide 

hot meals on a long flight. Dkt. 31-34 at 3–4. Although that grievance was allegedly resolved in 

the Union’s favor, the witness attests that Atlas’s Chief Pilot informed the Union that, “from that 

point on, if the aircraft moved (blocked out) with improper catering, Atlas would not consider 

any complaints about the catering on that flight to be a grievance under the parties’ collective 

bargaining agreement.” Id. at 4. It was this confrontation, according to the witness, that has 

prompted pilots to decline to depart before the catering issue is resolved. Id. at 4–5. 

Atlas, in turn, does not offer the same kind of statistical evidence it has offered in support 

of other aspects of its claim. In light of the lack of objective, statistical evidence or other 

evidence that the meal issue has caused material, economic disruption, and in light of the parties’ 

conflicting accounts of the relevant circumstances, the Court finds that Atlas has not carried its 

burden of demonstrating a likelihood 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 the absence of an injunction, it will 

suffer irreparable injury. 
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Although Atlas identifies various injuries that it says it will sustain, its most compelling 

contention is that a further slowdown in the middle of the busiest portion of the year for express 

shipping would cause the company irreparable reputational harm. Injury to reputation can, at 

least at times, rise to the level necessary to support the issuance 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 irreparable harm in damage to their business reputation.”)); Wright 

& Miller, Federal Practice and Procedure: Civil § 2948.1 (“Injury 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 “concrete 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, testified regarding the damage to client satisfaction posed by the 

slowdown, see, e.g., Dkt. 5-3 at 71, and they substantiated this testimony with examples of 

complaints from customers and family members of military personnel whose flights have been 

delayed, see, e.g., Dkt. 5-87, Dkt. 5-95, Dkt. 5-96, Dkt. 5-97. The company’s customers are 

aware of the delays created by the Union’s campaign, and, indeed, 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 winter 2016 targeting Amazon, which included a website asking 

Amazon customers to email the company regarding Atlas’s CBA). 

Most significantly, the nature of Atlas’s and its customers’ businesses—with their focus 

on express cargo delivery—turns on both speed and dependability. Dkt. 5-3 at 4. As Captain 
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Carlson testified, Atlas’s customers—and its customers’ customers—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 are not inclined to tolerate even occasional lapses in promised 

delivery times. Guaranteed next day delivery is not the same thing as almost always next day 

delivery. 

Atlas has also carried its burden of showing that the damage to its reputation that will 

likely result from a slowdown during the upcoming busy season is irreparable. As the 

company’s witnesses explained, a large portion of Atlas’s business is attributable to a few 

customers, including DHL, the U.S. Military, and Amazon. Hearing 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 initial integration of a transportation provider into a customer’s 

supply chain, once a switch has been made, the customer is unlikely to return its business to 

Atlas, even if Atlas’s reliability problems are resolved. Id. 

The Court, accordingly, finds that the testimony and exhibits offered into evidence 

demonstrate that Atlas will likely to suffer “harm to [its] reputation as a result of the” union’s 

actions, and “that such harm is certain to continue if the court does not impose an injunction.” 

See Trudeau, 384 F. Supp. 2d at 297. 

3. Balance of Equities 

The Court also concludes that Atlas has demonstrated that the balance of equities tips in 

its favor. See Winter, 555 U.S. at 20. Atlas asserts that, in the absence of an injunction requiring 

maintenance of the status quo, it will continue to suffer economic and reputational losses during 

the busiest time of the year for its industry. Dkt. 5-2 at 92–94. The Union argues in response 
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that an injunction will chill speech protected by the First Amendment, including safety and 

educational communications that it says are vital to the operation of the airline. Dkt. 50 at 26. 

The courts have long recognized that “the dissemination of information concerning the 

facts of a labor dispute must be regarded as within that area of 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 challenged actions in this case as involving such facts, Dkt. 50 at 29. 

As the Union recognizes, however, “the First Amendment does not protect advocacy of unlawful 

conduct.” Id. Indeed, the Supreme Court has clearly held that injunctions are, at times, the 

“appropriate means” to enforce the RLA’s status quo obligations, despite the First Amendment 

rights involved in the enjoined labor action. Chicago & N.W. Ry., 402 U.S. at 577 (upholding 

the use of strike injunctions to enforce Section 2, First of the RLA); Street, 367 U.S. at 774–75 

(upholding in face of First Amendment objections injunction enforcing Section 2, Eleventh of 

the RLA). Courts have taken a similar approach to violations of other labor laws, enjoining 

communications and conduct with significant 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 injunction against secondary picketing by labor 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 interest in regulating the 

economic relationship between labor and management, Congress may constitutionally enact 

measures which impact on the speech element of picketing.”). The Court, accordingly, 

concludes that the First Amendment does not prohibit it from enjoining communications and 

conduct that violates the status quo provisions of the RLA. 
71 

On the other side of the balance, the likely harm to the company in the absence of an 

injunction would be severe. Atlas risks losing existing business and future business 

opportunities, and, once gone, those opportunities would likely prove exceedingly difficult to 

regain. Moreover, in the absence of an injunction, Atlas would lose the benefit that the RLA 

status quo obligation confers upon it, 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 concludes that the balance of hardships tips in Atlas’s favor. 

The Court agrees with the Union, however, that when unlawful conduct that may 

properly be enjoined “occurs in the context of constitutionally protected activity,” such as 

ATAMs and Crew Calls, “precision of regulation is demanded.” Dkt. 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 district courts that First Amendment 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 therefore consider the chilling effect on lawful speech in setting 

the scope of its injunction. 

4. Public Interest 

Finally, the Court concludes that Atlas has shown that the public 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 public policies. The NLGA 

embodies a strong public policy against the intervention of courts in labor disputes to avoid 

“upsetting the natural interplay of the competing economic forces of labor and capital.” Bhd. of 

R.R. Trainmen, 353 U.S. at 40. By contrast, the status quo provisions of the RLA represent the 

judgment of Congress that the rights of labor and management to freely alter their relations 
72 

should be restricted so as to avoid the interruption of interstate 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 public policy against the issuance 

of labor injunctions must give way to the public interest in avoiding disruptions of the airline and 

railroad industries. Indeed, that interest is acute in the present posture, where the Union’s 

activities, if allowed, would likely interfere with interstate commerce during the busiest season 

of the year. The public interest, accordingly, weighs in favor of granting an injunction. 

* * * 

 For all of these reasons, the Court concludes that it has jurisdiction over this dispute and 

that Atlas has carried its burden of demonstrating that it is entitled to a preliminary injunction 

preserving the status quo while the parties engage in the process mandated by the RLA for 

resolving major disputes. 

C. Bond 

One final issue merits brief discussion. 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 those enjoined for any 

loss, expense, or damage caused by the improvident or erroneous issuance of such 

order or injunction, including all reasonable costs (together with a reasonable 

attorney's fee) and expense of defense against the order or against the granting of 

any injunctive relief sought in the same proceeding and subsequently 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 for damages in the absence of a bond and is limited to 
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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 Court 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