United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 7, 2018 Decided July 5, 2019

No. 17-7172

ATLAS AIR, INC. AND POLAR AIR CARGO WORLDWIDE, INC.,

APPELLEES

v.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-01953)

Edward M. Gleason, Jr. argued the cause for appellants. 

With him on the briefs were James Petroff and Trent R. Taylor. 

Joshua D. McInerney entered an appearance. 

Robert A. Siegel argued the cause for appellees. With him 

on the brief were Rachel Janger, Michael G. McGuinness, and 

Sloane Ackerman.

Before: GRIFFITH, Circuit Judge, and EDWARDS and 

RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
2

GRIFFITH, Circuit Judge: The district court issued a 

preliminary injunction enjoining a union’s efforts to gain 

leverage over two commercial air carriers during negotiations 

over an amended collective bargaining agreement. Congress 

permits courts to issue such injunctions in rare circumstances. 

Because this is one of them, we affirm.

I

Atlas Air, Inc. and Polar Air Cargo Worldwide, Inc. 

(collectively, “Atlas”) are global commercial air carriers that 

operate domestic and intercontinental flights for the U.S. 

military, DHL, and Amazon, among others. Atlas’s pilots are 

represented by the International Brotherhood of Teamsters; the 

International Brotherhood of Teamsters, Airline Division; and 

the Airline Professionals Association of the International 

Brotherhood of Teamsters, Local Union No. 1224. We refer to 

them collectively as the “Union.” 

In 2011, after a protracted negotiation process, the Union 

and Atlas entered into a collective bargaining agreement 

(CBA). The CBA prohibits the Union from engaging in a work 

stoppage or slowdown and permits Atlas to seek an injunction 

if the Union does so. The CBA also creates a process to resolve 

any “grievance[s]” that Atlas has over the “interpretation or 

application” of its provisions. Defs.’ Ex. 1 at 126-27, No. 17-

cv-1953 (D.D.C. Nov. 30, 2017), Dkt. No. 31-1.

Since entering the CBA, Atlas’s business model and 

staffing demands have changed significantly because of the 

rapid expansion of e-commerce. In the past, most of Atlas’s 

business was international. Of late, the company’s focus has 

shifted to a growing domestic market. The Union tried to work 

“collaboratively with Atlas” to alleviate the growing pains

caused by this change rather than holding the company
3

“accountable” to the precise terms of the CBA. J.A. 172-73. 

But as domestic operations expanded, pilots’ frustrations

increased. In 2014, the pilots elected a new Chairman of the

Atlas Pilots’ Executive Committee, the body through which the 

Union manages day-to-day representation of the pilots. Captain 

Robert Kirchner ran on a platform calling for “strict contract 

compliance.” J.A. 173. As he explained, if Atlas is “allowed to 

bend and violate the terms of the [CBA] when it suits them,

[the company] will have no reason to negotiate changes to the 

[CBA]” when it becomes amendable. Id. When he assumed the

role of Chairman in January 2015, Captain Kirchner launched 

several communication tools to help educate pilots about their 

rights and responsibilities under the CBA: “Atlas Teamsters

Action Message” podcasts (ATAM), “Atlas Pilots Crew Call”

question and answer sessions, “Chairman’s Update” emails, 

and “CBA Chat” videos. 

On February 16, 2016, about one year after Captain 

Kirchner took office, the Union notified Atlas that it would 

seek to amend the existing CBA. Around that same time, the 

Executive Committee’s communications efforts picked up 

steam. The day before the Union issued that notice, the 

Communications Chairman, Captain Michael Griffith, asked 

rhetorically on an ATAM, “Are you going to continue[] to sell 

your talents for a quick buck, or are you going to stop doing the 

Company favors and follow the CBA to the letter and give your 

[Executive Committee] and Negotiation Committee the 

leverage and power they need today?” J.A. 638. Over the 

coming months, the Union repeatedly called on pilots to be “all 

in,” “fly the CBA,” and “fly the contract.” E.g., J.A. 631, 650; 

Pls.’ Ex. 51 at 3, No. 17-cv-1953 (D.D.C. Nov. 30, 2017), Dkt.

No. 5-54; Pls.’ Ex. 100 at 54, No. 17-cv-1953 (D.D.C. Nov. 30,

2017), Dkt. No. 27-4. It encouraged pilots to “SHOP,” or “stop 

helping out Purchase,” named for the location of Atlas’s 

headquarters in Purchase, New York. E.g., J.A. 640. According 
4

to Captain Kirchner, “SHOP” or “shopping” refers to the idea 

that pilots should not “help out” Atlas “by permitting [it] to get 

away with contract violations,” but should instead insist on 

“strict contract compliance.” J.A. 178. The Union asked pilots 

to “BOOT,” which stands for “block out on time.” E.g., J.A.

652. By contrast, Atlas encourages pilots to “block out”—i.e.,

push back from the gate—up to fifteen minutes early as a 

matter of course, or even earlier with Atlas’s approval. The 

Executive Committee also encouraged pilots to think more 

carefully about when to call in sick or accept overtime work.

Atlas was unhappy with these efforts and the changes it 

began to see in pilots’ behavior. Atlas viewed SHOP and 

BOOT as part of a Union attempt to orchestrate a work 

slowdown in an attempt to ratchet up pressure on Atlas during 

their negotiations over an amended CBA. When Atlas could 

not convince the Union to stop this behavior, the company

asked the district court for an injunction. The Union disputed 

Atlas’s allegations and moved to dismiss for lack of 

jurisdiction. After a three-day evidentiary hearing, the district 

court determined that it had jurisdiction and entered a 

preliminary injunction to prevent the Union from encouraging 

pilots to “block out on time,” call in sick on short notice, and 

refuse to volunteer for overtime shifts. Atlas Air, Inc. v. Int’l 

Bhd. of Teamsters, 280 F. Supp. 3d 59 (D.D.C. 2017). The 

Union appealed. We have jurisdiction pursuant to 28 U.S.C. 

§ 1292(a)(1) and 29 U.S.C. § 110. 

II

We begin by asking whether the district court had 

jurisdiction to issue this type of preliminary injunction. Our 

review is de novo. Foretich v. Am. Broad. Cos., 198 F.3d 270, 

273 (D.C. Cir. 1999). To answer that question, we look to the 

Railway Labor Act and the Norris-LaGuardia Act.
5

A

In the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., 

Congress established different procedures to resolve two types 

of labor disputes in the transportation industry, which we refer 

to as major and minor disputes. Consol. Rail Corp. v. Ry. Labor 

Execs.’ Ass’n (Conrail), 491 U.S. 299, 302 (1989). A major 

dispute concerns the formation or amendment of a collective 

bargaining agreement. Id. The process for resolving a major 

dispute is complex and typically takes a long time. Only once 

that process is complete may the company or the union alter the 

status quo by engaging in a work slowdown or stoppage. Bhd. 

of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 

378 (1969). Delaying the time at which labor or management 

may use economic self-help encourages compromise and 

prevents interruptions to commerce or carriers’ operations. Id.;

Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 

396 U.S. 142, 149-50 (1969); see 45 U.S.C. § 152, First. The 

status quo requirement is thus at the “heart” of the RLA, and 

may be enforced by injunction. Jacksonville Terminal, 378 

U.S. at 377-78; see 45 U.S.C. § 152, First; Conrail, 491 U.S. at

302-03.

By contrast, a minor dispute involves a question about how 

to interpret an existing collective bargaining agreement, like 

the meaning of a term or whether the agreement permits a 

certain action. Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 

723 (1945). As long as the contested “action is arguably 

justified by the terms of the parties’ collective-bargaining 

agreement,” we treat the dispute as minor. Conrail, 491 U.S. at 

307; Air Line Pilots Ass’n, Int’l v. E. Air Lines, Inc. (Eastern), 

869 F.2d 1518, 1521 (D.C. Cir. 1989). The resolution process 

for a minor dispute is less involved, and there is no “general 

statutory obligation . . . to maintain the status quo” while that 
6

process is ongoing. Conrail, 491 U.S. at 304. So although 

“[c]ourts may enjoin strikes arising out of minor disputes” in 

limited circumstances, they generally may not enjoin other 

violations of the status quo. Id. If in doubt, the dispute is minor. 

Eastern, 869 F.2d at 1521. 

Labor disputes are also subject to the Norris-LaGuardia 

Act (NLGA), 29 U.S.C. § 101 et seq., which Congress enacted 

in response to concerns that federal courts were using their 

injunctive power too often to the detriment of workers. Bhd. of 

R.R. Trainmen v. Chi. River & Ind. R.R. Co., 353 U.S. 30, 40 

(1957). To curtail such judicial interference, Congress stripped 

federal courts of “jurisdiction to issue any . . . temporary or 

permanent injunction in a case involving or growing out of a 

labor dispute, except in . . . strict conformity” with various

procedural requirements. 29 U.S.C. § 101. The NLGA also 

categorically eliminates jurisdiction to enjoin certain types of 

conduct in “any labor dispute,” including work stoppages and 

slowdowns. Id. § 104.

We cannot have jurisdiction to enjoin slowdowns or work 

stoppages in major labor disputes in the transportation industry, 

see 45 U.S.C. § 152, yet at the same time lack jurisdiction to 

enjoin such conduct in “any labor dispute,” 29 U.S.C. § 104. 

More than 50 years ago, the Supreme Court resolved this 

conflict by holding that “the specific provisions of the [RLA] 

take precedence.” Chi. River, 353 U.S. at 41-42, 41 n.23.

Courts therefore have jurisdiction to issue injunctions to 

preserve the status quo in major disputes in the transportation 

industry, Conrail, 491 U.S. at 302-03, but in keeping with the 

goals of the NLGA, they should only do so if “that remedy 

alone can effectively guard the plaintiff’s right[s],” Int’l Ass’n 

of Machinists v. Street, 367 U.S. 740, 773 (1961). In order to 

verify that such an RLA injunction is indeed essential, courts 

must generally comply with the procedures set forth in the 
7

NLGA before issuing RLA injunctions. See 29 U.S.C. §§ 101, 

105-109; United Air Lines, Inc. v. Int’l Ass’n of Machinist & 

Aerospace Workers (United), 243 F.3d 349, 362 n.9 (7th Cir. 

2001); Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 238 

F.3d 1300, 1307, 1310 (11th Cir. 2001).

B

The Union sees this as a minor dispute. In its view, the 

question of whether the Union’s conduct is permissible

concerns how best to interpret or apply the existing CBA, and 

such grievances about the CBA’s interpretation or application 

must be resolved using the specific procedures outlined in that 

agreement. So because the Union has demonstrated that the 

existing CBA “arguably resolves the dispute one way or 

another,” the dispute is minor. See Union Br. 23. Atlas, by 

contrast, claims this is a major dispute because the Union 

encouraged pilots to push back from the gate exactly on time, 

call in sick on short notice, and decline overtime in order to

pressure Atlas in negotiations for an amended CBA. 

The district court agreed with Atlas, and so do we. A 

dispute over the terms of a new or amended collective 

bargaining agreement is unequivocally major. E.g., Nat’l R.R. 

Passenger Corp. v. Transp. Workers Union of Am. (Amtrak), 

373 F.3d 121, 123 (D.C. Cir. 2004). So too is a dispute over 

conduct that “grows out of” the effort to negotiate that 

agreement. Id. at 125-26 (where a proposed strike over 

Amtrak’s funding “gr[ew] out of” a dispute over the terms of a 

new collective bargaining agreement, and both the strike and 

agreement would alter pay and working conditions, the strike 

“gr[ew] out of” the major dispute). This makes perfect sense: 

The purpose of the RLA’s status quo requirement is to maintain 

the parties’ respective positions while they negotiate future 

rights. See id. at 123. When one party alters the status quo in 
8

order to put “economic pressure[]” on the other to enhance its 

own bargaining position, that conduct is part of a major dispute 

and may be enjoined. United, 243 F.3d at 365 (finding that a 

general slowdown campaign, which was designed to pressure 

United during negotiations for a new collective bargaining

agreement, constituted a major dispute); accord Delta, 238 

F.3d at 1307-08 (same, with respect to concerted effort to 

decline overtime); see also Long Isl. R.R. Co. v. Sys. Fed’n No. 

156, 368 F.2d 50 (2d Cir. 1966) (affirming order enjoining

union exhortations to “follow the rules strictly”). That is 

precisely what Atlas alleges happened here.

This is not a case about whether the existing CBA arguably 

permits the Union or its members to act in this manner, or 

whether the CBA establishes a process to resolve disputes 

about its interpretation. In fact, Atlas has consistently 

maintained that this dispute cannot be resolved by the existing 

agreement, and has disclaimed any reliance on the provision in 

the CBA that prohibits slowdowns for purposes of this case. Cf. 

Conrail, 491 U.S. at 311-12 (finding the dispute to be minor 

where both parties’ arguments relied on the meaning of the 

existing agreement, and whether a certain practice was 

impliedly justified by that agreement); Eastern, 869 F.2d at 

1524 (same, where both parties invoked a specific provision in 

the existing agreement to justify their positions). Rather, as the 

district court explained, this is a dispute “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 [an 

amended] CBA) in order to apply economic pressure on the 

company in those negotiations.” Atlas Air, 280 F. Supp. 3d at

80-81. Because the existing CBA does not even arguably speak 

to whether this conduct is permissible when done in 

furtherance of that particular goal, this is a major dispute.
9

Atlas has presented compelling evidence in support of its 

assertion that this is a major dispute. The Union’s own 

statements demonstrate that it frequently encouraged pilots to 

take the very actions Atlas challenges as a means to gain 

leverage in the negotiations over amending the CBA. See 

Amtrak, 373 F.3d at 124-25 (looking to unions’ words and 

deeds to confirm Amtrak’s assertion that the dispute was 

major). In ATAMs, Captain Griffith encouraged pilots to

“follow the CBA to the letter and give [the Executive 

Committee] and Negotiation Committee the leverage and 

power they need,” J.A. 638, and explained that “[SHOP] goes 

hand-in-hand with following the CBA,” J.A. 640. The same 

month the Union and Atlas finalized a negotiation protocol for 

the amended CBA, Captain Kirchner told pilots to continue 

their efforts to “SHOP, BOOT and push back on [Atlas’s] 

tactics harder than ever as we are starting to get the movement 

we desire.” J.A. 728. Don’t “start violating the CBA,” “resign 

yourselves to the status quo,” or “abandon our quest for an 

industry-leading CBA,” he implored. Id. Combined with the 

additional examples in the record and district court opinion, see 

infra, Part III.A; Atlas Air, 280 F. Supp. 3d at 78-79, 90-92, 97-

98, 101, Atlas has presented sufficient evidence to 

demonstrate, for purposes of jurisdiction, that the challenged 

actions grew out of the major dispute, see Amtrak, 373 F.3d at 

124-25; United, 243 F.3d at 363; Delta, 238 F.3d at 1307-08.

The Union claims, however, that sections 8 and 7(e) of the 

NLGA stripped the district court of its jurisdiction to enter this 

injunction. Section 8 provides that a court may not enter an 

injunction in a case involving a “labor dispute” if the plaintiff

“has failed to make every reasonable effort to settle [that] 

dispute.” 29 U.S.C. § 108. Section 7(e) strips a court of 

“jurisdiction to issue a temporary or permanent injunction in 

any case involving or growing out of a labor dispute” unless 

the court specifically finds “[t]hat the public officers charged 
10

with the duty to protect complainant’s property are unable or 

unwilling to furnish adequate protection.” Id. § 107(e). The 

Union is correct that these provisions can strip a court of 

jurisdiction in a major dispute. See supra, Part II.A; Bhd. of 

R.R. Trainmen v. Akron & Barberton Belt R.R. Co., 385 F.2d 

581, 613-14 (D.C. Cir. 1967) (NLGA section 8); Green v. 

Obergfell, 121 F.2d 46 (D.C. Cir. 1941) (NLGA section 7(e)). 

But not here.

Atlas has shown that, as required by section 8 of the 

NLGA, it made “every reasonable effort to settle [this] 

dispute.” 29 U.S.C. § 108. Again, Atlas and the Union disagree 

about how to characterize this labor dispute: Atlas says that it 

needed to exert every reasonable effort to resolve the dispute 

over the terms of the amended CBA, and has done so. The 

Union disagrees and asserts that “[t]he NLGA ‘labor dispute’ 

between the parties . . . is indisputably over whether an 

improper slowdown occurred under the parties’ existing 

CBA.” Union Reply 14. To resolve that dispute, Atlas had to

use the “mandatory grievance and arbitration procedures” in 

the CBA and RLA, among other things. Union Br. 34-36. It did 

not, and the Union argues that the district court accordingly 

lacked jurisdiction because “[t]he RLA ‘clearly states’ that this 

arbitration requirement is jurisdictional” and that “[f]ederal 

courts have no jurisdiction over RLA ‘minor’ disputes such as 

this one.” Id. at 22 (first quoting Oakey v. U.S. Airways Pilots 

Disability Income Plan, 723 F.3d 227, 237 (D.C. Cir. 2013),

and citing Conrail, 491 U.S. at 304). The problem with the 

Union’s argument is that it is based on the assumption that this 

case involves a “minor dispute” requiring interpretation of the 

parties’ CBA which, as we have already explained, is incorrect. 

The Union also argues that, per the CBA, Atlas must file a 

grievance with the Union and submit to arbitration its claim 

that the Union is directing an unlawful slowdown before the 
11

company can seek an RLA injunction in federal court. See 45 

U.S.C. § 152, First. Because Atlas has not done so, it cannot 

satisfy NLGA section 8. We find no merit in the Union’s claim, 

which is based on a “frivolous or obviously insubstantial” 

reading of the CBA. Conrail, 491 U.S. at 307, 310. The

relevant section of that agreement provides: 

[T]he Union . . . agrees that during the term of the [CBA] 

there will not be any complete or partial strikes, picketing, 

[or] slowdowns . . . unless and until the parties’ rights to 

self-help mature under the Railway Labor Act . . . . This 

paragraph shall not alter or limit [Atlas’s] right, if any, to 

obtain a court order enjoining such conduct by the Union 

and or the [pilots] both collectively and individually.

J.A. 624 (emphasis added). As Atlas correctly notes, this 

provision “reflects an agreement that the contractual no-strike 

clause [would] be in addition to, and not in lieu of,” Atlas’s 

right to ask a federal court for a status quo injunction under the 

RLA. Atlas Br. 39 n.7. The Union offers no convincing 

response to these arguments. Thus, Atlas was not required to 

pursue the grievance/arbitration process set forth in the CBA 

before asking a court to enjoin the Union’s concerted actions.

We agree with the district court that Atlas has made every 

reasonable effort to resolve its disputes with the Union. Atlas 

Air, 280 F. Supp. 3d at 85-86. With respect to the terms of the 

amended CBA, the parties began negotiating in 2016; 

mediated, arbitrated, and litigated a dispute related to those 

negotiations; worked for eight months to create a framework to 

govern the negotiation process; then spent about two and a half

months in negotiations before Atlas filed this complaint. See 

id. at 72-73 (describing these efforts). Moreover, the district 

court found that Atlas “made efforts to resolve the slowdown 

short of litigation,” as demonstrated by communications with 
12

the Union and its counsel. Id. at 86. As the district court found, 

on the present record, that is sufficient. Id. at 85-86; see United, 

243 F.3d at 364-65; see also Grand Trunk W. R.R. Inc. v. Bhd. 

of Maint. of Way Emps. Div., 497 F.3d 568, 572-73 (6th Cir. 

2007) (finding section 8 satisfied where parties engaged in 

unsuccessful negotiations more than once); San Antonio Cmty. 

Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 

1238-39 (9th Cir. 1997) (same); cf. Aircraft Serv. Int’l, Inc. v. 

Int’l Bhd. of Teamsters, 779 F.3d 1069, 1078 (9th Cir. 2015)

(en banc) (section 8 not satisfied where one party sought an

injunction before attempting to settle or negotiate with the 

other).

Furthermore, even though section 7 of the NLGA applies

to all cases “involving or growing out of a labor dispute,” 

courts have consistently interpreted subsection (e) to apply 

only where one party has threatened violence against the

person or physical property of another. Donnelly Garment Co. 

v. Dubinsky, 154 F.2d 38, 43 (8th Cir. 1946); Carter v. Herrin 

Motor Freight Lines, 131 F.2d 557, 561 (5th Cir. 1942); Wilson 

& Co. v. Birl, 105 F.2d 948, 950 (3d Cir. 1939). As the Third 

Circuit explained, “it would be unreasonable to construe [this]

subsection to include losses which . . . the powers of the police 

are hardly calculated to prevent,” like the loss of one’s 

customers because of strikes or picketing. Wilson, 105 F.2d at 

949-50. The one case from our court that the Union cites in 

support of this argument fits with this rule. See Green, 121 F.2d 

at 53-54 (finding that the district court lacked jurisdiction 

because the record “show[ed] violence and destruction of 

property” but there was no evidence that the public officers 

were “unable or unwilling to furnish adequate protection”). As 

the present record does not contain any evidence of threatened 

or actual violence to Atlas’s persons or property, section 7(e) 

is no bar to the district court’s authority to enjoin the Union’s 

conduct. Accord Atlas Air, 280 F. Supp. 3d at 87.
13

III

In general, a plaintiff seeking a preliminary injunction 

must show (1) a likelihood of success on the merits; (2) a 

likelihood of irreparable harm absent such relief; (3) that the 

equities favor the plaintiff’s position; and (4) that the injunction 

is in the public’s interest. Winter v. Nat. Res. Def. Council, Inc., 

555 U.S. 7, 20 (2008). But see Conrail, 491 U.S. at 303 (courts 

may enjoin status quo violations in major RLA disputes 

without a showing of irreparable injury). We review the 

issuance of a preliminary injunction for abuse of discretion, 

although we review the court’s underlying legal conclusions de 

novo and factual findings for clear error. Davenport v. Int’l 

Bhd. of Teamsters, 166 F.3d 356, 361 (D.C. Cir. 1999). “A 

factual finding is clearly erroneous if it is ‘without substantial 

evidentiary support or if it was induced by an erroneous 

application of the law.’” Air Line Pilots Ass’n Int’l v. E. Air 

Lines, Inc., 863 F.2d 891, 894 (D.C. Cir. 1988) (quoting Cuddy

v. Carmen, 762 F.2d 119, 124 (D.C. Cir. 1985)).

Because the Union’s argument on appeal is confined to the 

question of whether Atlas has demonstrated a likelihood of 

success on the merits, our analysis is as well. See Abdullah v. 

Obama, 753 F.3d 193, 199 (D.C. Cir. 2014) (issues not raised 

in opening briefs are forfeited). 

A

To demonstrate a likelihood of success in this kind of case, 

Atlas must show that the status quo changed during a major 

dispute in violation of the RLA, see 45 U.S.C. § 152, First, and 

provide “clear proof” that the Union participated in, authorized, 

or encouraged that change, 29 U.S.C. § 106; see United, 243 

F.3d at 363-66; Delta, 238 F.3d at 1309 & n.21.
14

To determine whether the Union encouraged a change in 

the status quo during a major dispute, we must know when that

dispute began. The Union says it started in January 2015 when 

Captain Kirchner was elected head of the Executive Committee

and began “to educate the pilots about their contractual rights 

and regulatory responsibilities.” Union Br. 6; see id. at 43-45. 

It was in that context that he started calling for strict CBA 

compliance. In Atlas’s view, the relevant date is February 

2016, when the Union notified Atlas of its intent to negotiate 

an amended CBA, intensified its messaging campaign, and 

announced SHOP and BOOT. It is clear from the district 

court’s analysis that the court agreed with Atlas. See Atlas Air, 

280 F. Supp. 3d at 78-103. We do as well. As we have 

explained, this case is about a major dispute over the terms of 

an amended CBA. That dispute began in February 2016.

Of course, a union is allowed to educate its members about 

their contractual rights and safety obligations, and in that 

context, it may not be a problem to call for strict compliance

with the contract. A union may not, however, encourage strict 

compliance with the terms of an existing agreement in an effort 

to gain leverage in negotiations for a new or amended contract. 

When a union changes the status quo in aid of such an effort, 

the district court may enjoin the union’s conduct. That is just 

what happened here with respect to blocking out, short-notice 

sick calls, and overtime.

1. Blocking Out On Time

Atlas asserts that pilots were substantially more likely to 

block out (i.e., push back from the gate) precisely on time after 

the Union notified Atlas of its intent to negotiate an amended 

CBA. Departing exactly on time, as opposed to when the

aircraft is “loaded and ready,” removes any potential “buffer,”
15

meaning the flight is more likely to arrive late if it encounters 

other issues, like headwinds or congestion. Id. at 100-01. This

threatens to cause cascading delays across flights by forcing 

Atlas to shuffle runways, schedules, and gates, particularly at 

Atlas’s biggest hubs where flights depart every two-to-three 

minutes.

Atlas’s expert, Dr. Lee, presented statistically significant 

evidence showing that from January 1, 2012 to February 15, 

2016, nearly 80% of flights blocked out early and 13% blocked 

out precisely on time. J.A. 464-67 (Lee Decl.). This 

consistently low percentage of precisely on-time departures 

reasonably suggests that pilots were not waiting to depart until 

scheduled. But from February 16, 2016 to August 2017, about 

34% of flights blocked out early and 53% blocked out precisely 

on time. Id. In addition, since February 2016, “the percentage 

of flights blocking out twenty-five or more minutes before the 

[estimated departure time] dropped from 12.1% to 3.3%,” and

“flights unaffected by other delays have blocked out an average 

of six minutes less early.” Atlas Air, 280 F. Supp. 3d at 100

(citing Dr. Lee’s analysis). Notably, these statistics exclude 

flights delayed for reasons outside Atlas’s control, like weather 

or customer requests, and flights experiencing cascading 

delays. 

The Union’s responses to this compelling evidence lack 

merit.

1 First, the Union disputes the reliability of Dr. Lee’s

 1 The Union objects that the district court did not make separate, 

explicit findings about what constituted the pre-dispute status quo 

with respect to any of the challenged conduct. While true, we detect 

no error. Courts resolving these type of cases do not typically make 

such express findings; instead, they compare statistics about 

challenged behaviors from before and after the relevant dividing 

time. See generally United, 243 F.3d at 354-55, 363; Delta, 238 F.3d 

at 1310-11. This approach makes perfect sense to us. As the Union 
16

analytical models. He used departure delays, but in the Union’s 

view, arrival delays are a better metric because that is what 

customers care about. The Union’s expert, Daniel Akins, found 

that Atlas’s “poor on-time [arrival] performance predates” the 

Union’s February 16, 2016 notice, pursuant to section 6 of the 

RLA, that it wished to negotiate an amended CBA (“section 6 

notice”). Union Br. 12 (citing Mr. Akins’s analysis); see 45

U.S.C. § 156. The Union therefore reasons that Atlas cannot 

blame the Union for these changes. The Union also claims that

Dr. Lee made up the “loaded and ready” concept; that is not 

something airlines or pilots track, and Atlas does not have a 

rule requiring or allowing pilots to depart when the aircraft is 

“loaded and ready.” Union Br. 11-12.

As the district court found, there were good reasons for Dr. 

Lee to use departure time. Customers may be primarily 

concerned with arrival times, but the BOOT campaign

encouraged pilots to depart on time, and departure delays 

contribute to arrival delays. That is why blocking out as soon 

as the aircraft is able to depart (i.e., “loaded and ready”) is 

beneficial—it decreases the risk that an aircraft experiencing

other delays will arrive late. A pilot who is ready and able to 

depart early, but instead sits at the gate until the scheduled 

departure time (i.e., waits to block out on time) cuts down the

buffer. Because we agree that departure time is an appropriate 

metric, whether Atlas’s flights arrived chronically late before 

the section 6 notice is immaterial to whether the BOOT 

campaign had a statistically significant effect on departure 

times. As for the Union’s objections to the “loaded and ready” 

 

conceded at argument, the status quo includes practices that have 

developed over time, as reflected by the manner in which the 

employer or employee actually acts. So if the district court finds—as 

it did here—that statistical evidence demonstrates that the employer 

or employee consistently acted in one manner for a given period of 

time, that can establish a pre-dispute “status quo.”
17

metric, it matters not that Atlas’s expert coined this term to 

explain his analysis to the district court, and that Atlas did not 

have a formal policy requiring pilots to depart once the plane 

was “loaded and ready.” Since voluntary conduct can be part 

of the “status quo,” the pertinent question in this case is what 

the pilots normally did before the Union informed Atlas of its 

intent to negotiate an amended CBA. See, e.g., Delta Air Lines, 

238 F.3d at 1309-10 (encouraging pilots to decline optional 

overtime assignments violated the status quo). In other words, 

the question is what pilots normally did before the Union 

assertedly began trying to change the status quo. Atlas’s 

statistical evidence shows that, prior to February 2016, pilots 

frequently departed before the scheduled time and only rarely 

departed precisely on time, and after February 2016, the 

inverse was true.

Second, the Union argues that blocking out on time is not 

illegal, but instead ensures that pilots are “in compliance with 

[Federal Aviation Administration] rest, flight and duty time 

regulation[s].” Union Br. 51. That may be so, but the issue is

not whether pilots should block out on time; it is whether pilots 

altered their prior practice of blocking out before the scheduled 

time, when possible. And the answer to that question, the 

district court fairly concluded, was yes.

Finally, the Union offers various alternative explanations 

for these changes, including “the increasing complexity and 

size of [Atlas’s] operations,” the shift towards employing more 

junior-level pilots, an “improved emphasis on fatigue training 

and awareness, and the increasing age of the Atlas fleet.” Id. at

14. But these ideas would at best shed light on why fewer 

flights blocked out before the estimated departure time. The 

Union’s theories do not explain the significant increase in 

flights blocking out exactly on time—from 13% to 53%. On the 

present record, the most plausible explanation for this conduct 
18

is the one Atlas offered: even if they were ready earlier, pilots 

waited to depart until the scheduled time.

Atlas provided clear proof that the Union encouraged 

pilots to act in this manner. The record is replete with 

communications from the Union exhorting pilots to stop 

departing early. For example, on a June 2016 ATAM, Captain 

Griffith reminded listeners that “the amendable date of our 

current [CBA]” is approaching, and commended pilots on their 

efforts to “show[] our particular giant how we can [SHOP] and 

[BOOT] and even buckle down and say, first you pay me.” J.A. 

653. In his June 2017 Chairman’s Update email, Captain 

Kirchner told pilots that Atlas believes if it “delay[s] a new 

CBA long enough, you will . . . abandon our quest for an 

industry-leading CBA. This cannot be allowed to 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.” 

J.A. 728. Another Executive Committee member made the

point even more explicit in an August 2017 Crew Call: 

“Blocking out on time is . . . advantageous to us by giving 

leverage to our Negotiating Committee and our [Executive 

Committee] and our stewards.” J.A. 769. Given this evidence, 

the district court did not improperly conclude that Atlas is 

likely to succeed in demonstrating that by encouraging pilots 

to “block out on time,” the Union altered the status quo.

2. Short-Notice Sick Calls

A “short notice” sick call refers to a pilot’s decision not to 

fly, typically due to illness, made on the same day as the pilot’s 

next scheduled flight. Atlas argues that pilots began calling in 

sick on short notice at a higher rate after the Union served its 

section 6 notice. This made it more difficult to find substitute 

crew members, increasing the risk that flights would be 

cancelled or delayed. 
19

In support, Atlas provided statistical evidence that, from 

January 2013 to February 2016, only 14.4% of sick calls were 

made the same day the pilot was scheduled to fly. J.A. 451 (Lee 

Decl.). This suggests that pilots were not typically waiting until 

the day of the scheduled flight to notify Atlas of their 

unavailability. But from February 2016 to September 2017, 

that number was 20.4%. Id. Because the reason for this 

percentage change was a spike in short-notice sick calls 

beginning in October 2016, Atlas’s expert also compared 

statistics from October 1, 2015 to September 20, 2016, and 

from October 1, 2016 to September 20, 2017. Using those 

dates, short-notice sick calls increased from 13.8% to 23.8%, 

while sick calls made at least two days in advance decreased 

from 44.5% to 31.6%. Id. Moreover, during the October 2015

to September 2016 period, the highest percentage of shortnotice sick calls in a given month was 18%. Id. But from 

October 2016 to September 2017, the monthly percentage 

never dropped below 18%, and it exceeded 20% in every 

month but one. Id.

The Union does not challenge the assertion that shortnotice sick calls increased in frequency. Instead, the Union

argues that “overall sick leave usage at Atlas did not increase.” 

Union Br. 54 (emphasis added). But that misses the point. The 

increased percentage of sick calls made at the last minute

supports Atlas’s theory that pilots were waiting to call in sick 

in order to disrupt scheduled flights. The Union also questions 

the timing of these changes. Of course, a change in behavior in 

October 2016 does not provide perfect support for Atlas’s 

theory that pilots began acting in this manner in February 2016 

in response to this major dispute. But it is unrealistic to expect 

massive changes in behavior to occur right away, or all at once. 

See United Air Lines, Inc. v. Air Line Pilots Ass’n Int’l (ALPA), 

563 F.3d 257, 260, 264 (7th Cir. 2009) (affirming injunction 
20

for a “job action that began in 2006 [and] escalated in 2008”). 

The question, then, is whether Atlas has offered sufficient 

evidence connecting this statistically significant change to the 

Union’s conduct, or whether the record suggests this occurred 

for another reason. 

That brings us to whether the Union participated in or 

called for this change in behavior. Of course, there is nothing 

inherently suspect about a union encouraging its members not 

to work sick. What is suspect is a union reminding its members 

not to work sick while acknowledging the legal consequences 

of calling for a sick out and continually emphasizing that strict 

contract compliance will provide negotiation leverage.

Combined, this kind of evidence can fairly be interpreted as 

encouraging slowdown activities. See id. at 272-73 (affirming 

district court’s conclusion that statistical evidence, combined 

with coded directives “to engage in job actions,” like “fly the 

contract,” warranted a status quo injunction).

Atlas offered several examples to support its claim that the 

Union’s conduct went beyond merely reminding pilots not to 

work sick. The day the Union provided its section 6 notice, the 

host of a CBA Chat told viewers he had called in sick because 

of a high fever, then pulled a hot water bottle from under his 

shirt. The Chat closed with this reminder: “It’s your CBA. They 

signed it. You use it.” J.A. 637. The Union was aware that 

expressly calling for a “sick out” would be “unethical” and 

might expose the Union to a large fine. See J.A. 636 (describing 

$40 million fine levied against another airline union for 

encouraging a sick out). But it did encourage pilots to be “all 

in,” to SHOP, and to “fly the CBA.” E.g., J.A. 631, 650; Pls.’ 

Ex. 51 at 3, No. 17-cv-1953 (D.D.C. Nov. 30, 2017), Dkt. No. 

5-54. The Union directly connected the CBA, these coded 

terms, and the sick calls when it “commend[ed]” pilots for their 

“vigilance in holding up the provisions of our CBA” and 
21

reminded them that, “in the midst of [this] period of increased 

friction and hostility, . . . make absolutely certain that you are 

fit for duty each and every time you report to work. Please, do 

not fly sick or fatigued. All In, Every Day.” J.A. 774.

To be sure, Atlas’s argument is not ironclad. It could not 

identify any specific example of an individual pilot who had 

abused the sick leave policy. Atlas Air, 280 F. Supp. 3d at 89. 

The fit between the Union’s language and the pilots’ conduct 

is not exact, as these communications relate to calling in sick, 

not calling in sick at the last minute. And, as the district court 

acknowledged, “[s]tanding alone,” the claim that the Union 

encouraged pilots not to fly sick “might not carry the day.” Id.

at 90. But the district court found that specific examples and 

“more explicit language” were not necessary because, when 

viewed in context, “it is evident that at least some of the 

Union’s exhortations were tied to the ongoing labor dispute.” 

Id. at 90-91. That was not reversible error.

3. Open Time

Finally, we turn to overtime, known in this industry as

“open time.” Airlines use open time when both the primary and 

reserve crew are unable to fly as scheduled. Filling an open 

time slot involves calling individual pilots in order of seniority

until Atlas finds someone willing to work that flight. Unfilled 

open time creates cascading delays because the airline must 

move pilots from other flights to cover these shifts. At its worst, 

it may take days to get back to the normal schedule. As such, 

although each pilot may choose whether to accept an available 

open time shift, Atlas relies on the assumption that most open 

time positions will be filled.

The district court found that Atlas presented sufficient 

statistical evidence to support its claim that, since the Union 
22

served the section 6 notice, it has become more difficult to fill

open time. In 2015, Atlas made an average of one-and-a-half 

calls to fill each open time assignment. J.A. 456 (Lee Decl.). In

2016, that number increased to over two calls per assignment, 

and in 2017, to over three. Id. at 457. Still, more assignments 

remained unfilled. From January 2015 to February 2016, about 

2.5% of all open time assignments were not filled, and unfilled 

assignments never exceeded 5% in a given month. See id. at

459. Between March 2016 and August 2017, around 10% of 

total assignments were unfilled. See id. In eleven of those 

eighteen months, the unfilled rate exceeded 5%; in three 

months, it exceeded 20%. Id. As with sick leave, however, a

statistically significant shift in open time did not occur

immediately after the Union provided its section 6 notice in

February 2016. See id. Furthermore, although the overall trend 

demonstrates an increase in unfilled open time, the statistics are 

not consistent from one month to the next. Between November 

2016 and March 2017, for instance, the percentage of unfilled 

open time fluctuated from 11% to 42%, 5%, 0%, and 23%. Id.

The Union suggests that these changes resulted from a

decrease in total open time and a decline in the desirability of

those assignments. In support, the Union points to a purported 

2015 policy change that required more pilots to “deadhead” on 

company aircraft to get to the location of their next assignment. 

Deadhead flights tend to be less direct, less comfortable, and 

less reliable than commercial flights. The Union also suggests

that this change might have occurred because individual pilots 

chose to decline open time for personal reasons, such as a 

desire to spend more time with their families, or because they 

did not need the extra money. 

The district court rejected these alternative explanations as

“more supposition than evidence.” Atlas Air, 280 F. Supp. 3d 

at 97. That was not clearly erroneous. The Union’s expert, Mr. 
23

Akins, was unusually equivocal about these ideas, emphasizing 

that they were “possible” or “may” explain these changes in 

behavior. J.A. 252-53 (Akins Decl.). He acknowledged that it 

is “counterintuitive” to expect that “the share of open trips 

uncovered would increase as open trips decreased.” Id. at 253.

We agree. We would naturally expect that, if there are fewer 

opportunities to earn extra income, more pilots would be 

interested in them. Furthermore, the Union did not offer any 

evidence to support its claim that Atlas’s deadheading policy 

had changed. See id. at 252 (Akins Decl. stating he was

“informed” of the deadheading policy shift but not providing 

supporting evidence or affidavits). Given the questionable 

logic of the desirability theory and the dearth of evidence 

supporting the deadheading theory, the district court did not err

in accepting Dr. Lee’s reasoned analysis over Mr. Akins’s 

unsupported speculation.2 Although the district court did not 

reject each theory of why an individual pilot might decline

open time, the court adequately made clear that it credited Dr. 

Lee’s conclusion that this change did not merely stem from a 

series of individual decisions.

Finally, the Union points to the temporal disconnect 

between the section 6 notice and the alleged change in 

behavior. As we said in our discussion of sick calls, large-scale 

 2 On appeal, the Union gestures at two other arguments, both of 

which it forfeited. The idea that it is counterintuitive for pilots to 

decline premium pay to gain bargaining leverage was not adequately 

raised before the district court. Haselwander v. McHugh, 774 F.3d 

990, 997 (D.C. Cir. 2014). And the Union mentioned only in passing 

that Atlas has the authority to decide whether to add a trip to a pilot’s 

schedule or designate it as open time and did not explain why that 

might be important. Schneider v. Kissinger, 412 F.3d 190, 200 n.1 

(D.C. Cir. 2005) (“It is not enough merely to mention a possible 

argument in the most skeletal way, leaving the court to do counsel’s 

work . . . .”).
24

behavioral changes do not always happen overnight. Supra, 

Part III.A.2. That is especially true when it means forgoing an 

extra benefit, like overtime pay, so it was not erroneous for the 

district court to conclude that the “precise temporal 

correspondence that the Union demands is neither required nor 

what one would reasonably expect to occur.” Atlas Air, 280 F. 

Supp. 3d at 96. Moreover, although the amount of unfilled open 

time was not consistent from month-to-month, statisticians 

typically compare figures year-to-year or quarter-to-quarter. 

And the fact remains that, from 2015 to 2017, it took more 

phone calls to fill each open time slot, and more open time slots 

still went unfilled. Based on this, the district court did not 

improperly conclude that Atlas had carried its burden of proof. 

Atlas presented sufficient evidence demonstrating that the 

Union encouraged pilots to act in this manner. Although some 

of these communications concerned the practice of accepting 

open time out of seniority order in violation of the existing 

CBA, see Union Br. 18-19, the vast majority did not. For 

example, when a pilot asked during a Crew Call whether 

“picking up open time flying harm[s] . . . [the Union’s] ability 

to negotiate,” Captain Kirchner explained that “[e]verything 

you do when you cut a corner on the CBA, when you go the 

extra mile for [Atlas], that just solidifies and helps them in what 

they are trying to do to us . . . and it prolongs the negotiation 

process.” J.A. 721-22. He reminded pilots, “You are all 

watching a huge amount of open time. . . . [U]nfortunately 

some of our pilots are falling over backwards to help [Atlas]

out of a jam . . . . Think what you do before you do it because 

you might be prolonging the agony” of “service failures, 

scheduling failures, etc.” J.A. 735. The Executive Committee 

did explain that whether to fly open time is “a personal 

decision,” J.A. 736-38, and clarified that the Union could not 

“reprimand” pilots who accepted open time flights, see J.A. 

713, or “openly advocate [for] not picking up open time
25

flying,” Pls.’ Ex. 113 at 10, No. 17-cv-1953 (D.D.C. Nov. 30,

2017), Dkt. No. 28-15. But the Union’s preferences were clear: 

“[I]f you don’t fly open time, and that’s a personal decision 

because you want to be with your family, and you don’t want 

to help [Atlas] out, that’s a great personal decision. . . . [I]t’s 

just time for people to do what’s right for the group, but do it 

on a personal basis.” J.A. 737. In light of this anecdotal and 

statistical evidence, the district court did not err in enjoining 

the Union from encouraging pilots to decline open time.

B

Two final points warrant discussion. First, Atlas’s 

September 2017 lawsuit was timely. RLA claims are subject to 

a six-month statute of limitations. Atlas Air, Inc. v. Air Line 

Pilots Ass’n, 232 F.3d 218, 226 (D.C. Cir. 2000). If events in 

the six months leading up to the lawsuit are part of an ongoing 

slowdown campaign or would themselves constitute violations 

of the RLA’s status quo requirement, however, the action is not 

time-barred. ALPA, 563 F.3d at 269-70 (ongoing slowdown); 

see Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 416 (1960)

(standalone violation). The statistical and anecdotal evidence 

that we have described sufficiently demonstrates that the Union 

was continuously violating the RLA in the six months before 

Atlas filed suit.

Finally, the Union claims that the injunction is overbroad

in violation of the First Amendment and NLGA section 109. 

The district court enjoined the Union, its “officers, agents, 

employees, members employed by [Atlas], and all persons 

acting in concert with any of them . . . from authorizing, 

encouraging, permitting, calling [for], engaging in, or 

continuing any strike, work stoppage, sick-out, concerted 

refusal to volunteer for or to accept work assignments 

(including, without limitation, open time flights), slowdown 
26

(including, without limitation, the existing SHOP and BOOT 

campaigns), or other self-help against [Atlas] relating to the 

dispute or disputes arising from the Section 6 notice.” J.A. 156.

Such language is common in these types of injunctions, 

and presents no problem here. See, e.g., ALPA, 563 F.3d at 259-

60; Alton & S. Ry. Co. v. Bhd. of Maint. of Way Emps., 883 F. 

Supp. 755, 765-66 (D.D.C.), amended on reconsideration, 899 

F. Supp. 646 (D.D.C.), and aff’d, 72 F.3d 919 (D.C. Cir. 1995)

(per curiam) (unpublished table decision). The Union protests 

that the district court erroneously enjoined lawful, protected 

individual and group activity. But the district court was only 

permitted to enjoin those “specific act[s] . . . expressly 

complained of in the [complaint]” and about which it made 

explicit factual findings. 29 U.S.C. § 109. As the complaint, 

language of the injunction, and the court’s underlying findings 

reflect, this case is about whether the Union violated the RLA 

by encouraging pilots to jointly engage in actions designed to

obtain leverage in the negotiations for an amended CBA. See 

Atlas Air, 280 F. Supp. 3d at 67. The injunction does not restrict

the rights of individual pilots whose actions are independent of 

the Union, nor does it impermissibly prohibit lawful self-help

activities that would not run afoul of the RLA. For example, it 

does not prohibit a pilot’s personal decision to refuse an open 

time assignment. Rather, the injunction applies only to 

“persons acting in concert with” the Union and its officers in 

their efforts to obtain leverage in negotiations for an amended 

CBA. J.A. 156; id. (enjoining only the “concerted refusal to 

volunteer for or accept work assignments”); see Concerted,

NEW OXFORD AMERICAN DICTIONARY 352 (2d ed. 2002) 

(“jointly arranged, planned, or carried out; coordinated”); see 

also Concerted Action, BLACK’S LAW DICTIONARY (11th ed. 

2019) (“An action that has been planned, arranged, and agreed 

on by parties acting together to further some scheme or cause, 
27

so that all involved are liable for the actions of one another.”). 

That complies with the First Amendment and NLGA.

IV

In sum, the district court had jurisdiction to enter a status 

quo injunction in this major dispute, and did not abuse its 

discretion in enjoining this conduct. The judgment of the 

district court is affirmed.

So ordered.