PATRICK J. SCHILTZ, District Judge.
Delta Air Lines, Inc. ("Delta") and Northwest Airlines, Inc. ("Northwest") merged in 2008. Prior to the merger, Northwest flight attendants were unionized, and Delta flight attendants were not. Delta flight attendants were also paid better than Northwest flight attendants.
In 2010, all of Delta's flight attendants — including both those who had been employed by Delta and those who had been employed by Northwest — voted not to be represented by the Association of Flight Attendants-CWA, AFL-CIO ("AFA"), which had represented the former Northwest flight attendants. The AFA accused Delta of unlawfully interfering with the election and asked the National Mediation Board ("the Board") to investigate.
The central issue in this lawsuit is whether, while the Board is investigating the AFA's challenge to the election, the pay and benefits of the former Northwest flight attendants should be raised to match the pay and benefits of the former Delta flight attendants. The plaintiffs in this action — all of whom are former Northwest flight attendants — argue that, in the aftermath of the election, the law permits their compensation to be aligned with the compensation of former Delta flight attendants and that Delta has acted unlawfully in refusing to compensate the two groups equally. Delta argues that, while the AFA's challenge to the election remains pending, the law forbids the compensation of the two groups of flight attendants to be aligned.
Plaintiffs bring this action under the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151 et seq., alleging that, by refusing to align their compensation with the compensation of the former Delta flight attendants, Delta has violated their rights under § 2, Third and Fourth of the RLA. 45 U.S.C. § 152, Third and Fourth. This matter is before the Court on plaintiffs' motion for a preliminary injunction and on Delta's motion to dismiss or, in the alternative,
Delta merged with Northwest on October 31, 2008. Am. Compl. ¶ 17. At the time of the merger, Northwest flight attendants were represented by the AFA and were compensated under the terms of a collective-bargaining agreement ("CBA"). Am. Compl. ¶¶ 2-3. Northwest flight attendants earned less than their Delta counterparts, who were not unionized. Am. Compl. ¶ 3.
When the two airlines merged, Northwest flight attendants became employees of Delta.
On July 1, 2010, the AFA asked the Board to conduct an election to determine whether the newly combined group of Delta and Northwest flight attendants would be represented by a union. Am. Compl. ¶¶ 19-20. The Board granted the request and scheduled a voting period from September 29 to November 3, 2010. Am. Compl. ¶ 20. The AFA lost the election by a vote of 9,544 to 9,216. Am. Compl. ¶ 21. Based on those results, the Board extinguished the AFA's certification as the representative of the Northwest flight attendants — and, as a result, the Northwest CBA is no longer in effect. Am. Compl. ¶ 21. But Delta nevertheless continues to compensate the Northwest flight attendants under the terms of the CBA, thus maintaining the disparity between the compensation paid to Northwest flight attendants and the compensation paid to Delta flight attendants. Am. Compl. ¶ 23.
Several weeks after the election, the AFA asked the Board to investigate whether Delta had unlawfully interfered with the election. Am. Compl. ¶ 24. The Board had not acted on the AFA's interference claims as of the date that the plaintiffs filed their amended complaint in this action. But the parties have since informed the Court that the Board has decided to investigate the AFA's interference claims. See Bowman Decl. Ex. D. As far as the Court knows, the Board's investigation is ongoing.
In December 2010, the AFA asked Delta to align the wages of all flight attendants and offered to waive any election-interference claims related to such alignment. Am. Compl. ¶ 25. Delta replied that it would not align the flight attendants' wages unless the AFA withdrew its interference claims pending before the Board. Am. Compl. ¶ 26.
In January 2011, Delta announced a profit-sharing distribution for flight attendants. Am. Compl. ¶ 27. Delta said that the Delta flight attendants would receive approximately 6.5 percent of their eligible earnings, while the Northwest flight attendants would receive approximately 3.2 percent of their eligible earnings (an amount calculated according to the profit-sharing formula in the terminated CBA). Am. Compl. ¶ 27. The AFA asked Delta to pay Northwest flight attendants
On February 14, 2011, Delta issued the profit-sharing checks. Consistent with Delta's earlier announcement, the Northwest flight attendants received less than half of the amount paid to the Delta flight attendants. Am. Compl. ¶ 32. On that same day, the AFA once again told Delta that if Delta aligned the pay, benefits, and work rules of all flight attendants, the AFA would waive any potential interference claims related to that alignment. Am. Compl. ¶ 33. Delta again refused. Am. Compl. ¶ 34.
Delta continues to pay the Northwest flight attendants less than the Delta flight attendants, and Delta has made clear that it will maintain the disparity until the AFA withdraws its challenge to the election or the AFA's challenge is fully and finally resolved by the Board. Needless to say, the Northwest flight attendants are unhappy at being paid less than the Delta flight attendants, and at least some of the Northwest flight attendants appear to blame the AFA for their plight. According to the amended complaint, a number of the Northwest flight attendants have told the AFA that they will not support the AFA in any new representation election unless the AFA withdraws its interference claims against Delta. Am. Compl. ¶ 37.
Delta moves to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. In ruling on a motion to dismiss for lack of subject-matter jurisdiction, the court is free to weigh the evidence and decide whether that evidence establishes that it has jurisdiction. See Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990). In ruling on a motion to dismiss for failure to state a claim, a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Blankenship v. USA Truck, Inc., 601 F.3d 852, 853 (8th Cir. 2010).
Ordinarily, if the parties present, and the court considers, matters outside of the pleadings, a Rule 12(b)(6) motion must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d). But the court may consider exhibits attached to the complaint and documents that are necessarily embraced by the complaint without converting the motion into one for summary judgment. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n. 4 (8th Cir.2003). To survive a Rule 12(b)(6) motion, a plaintiff must do more than offer "labels and conclusions" or a "formulaic recitation of the elements of a cause of action...." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Instead, the "[f]actual allegations must be enough to raise a right to relief above the speculative level...." Id.
In this lawsuit, plaintiffs allege that Delta is interfering with its flight attendants' decision about whether to unionize by refusing to align compensation for the Northwest and Delta flight attendants, by blaming the AFA for the resulting disparity, and by conditioning alignment on the withdrawal of the AFA's interference claims. Delta moves to dismiss plaintiffs'
Under § 152, Ninth, the Board has exclusive jurisdiction to resolve representation disputes — that is, disputes over which union, if any, will represent employees for purposes of collective bargaining. See Switchmen's Union v. Nat'l Mediation Bd., 320 U.S. 297, 300, 64 S.Ct. 95, 88 L.Ed. 61 (1943); Indep. Fed'n of Flight Attendants v. Cooper, 141 F.3d 900, 902 (8th Cir.1998) ("The Mediation Board's power to resolve representation disputes under the RLA is exclusive.").
45 U.S.C. § 152, Ninth.
When presented with a representation dispute, then, the Board essentially has two functions: (1) selecting the method by which employees will decide whether to be represented by a union so as to ensure that the employees' choice will be free from interference, influence, or coercion by the employer; and (2) certifying the chosen representative, if any. See Switchmen's Union, 320 U.S. at 304, 64 S.Ct. 95 (noting that "[t]he Mediation Board makes no `order'" and "its only ultimate finding of fact is the certificate").
The Board has little ability to directly regulate employer conduct. See Aircraft Mech. Fraternal Ass'n v. United Airlines, Inc., 406 F.Supp. 492, 502-03 (N.D.Cal.1976). Rather, the Board regulates employer conduct indirectly by exercising its authority to set aside a tainted election and schedule a new election. In theory, the Board could continue to set aside tainted elections and schedule new elections forever. Id. at 503 ("The Board will continue to set aside elections tainted by improper influence until such time as the offending practice ceases."); Charles J. Morris, A Tale of Two Statutes: Discrimination for Union Activity under the NLRA and RLA, 2 Emp. Rts & Emp. Pol'y J. 317, 336 (1998) ("because of the
Plaintiffs bring their claims under 45 U.S.C. § 152, Third and Fourth. These subsections provide, in relevant part:
The RLA does not expressly state that these provisions are judicially enforceable, but the Supreme Court long ago held that there is an implied right of action under § 152, Third to enforce its prohibition against interference, influence, and coercion. See Tex. & New Orleans R.R. Co. v. Bhd. of Ry. & S.S. Clerks, 281 U.S. 548, 568-70, 50 S.Ct. 427, 74 L.Ed. 1034 (1930).
With these principles in mind, the Court now turns to Delta's argument that, because the Board is presently considering the AFA's election-interference claims, this Court should decline to exercise jurisdiction over the claims brought by plaintiffs in this lawsuit.
To begin with, it is important to note that the parties' dispute before this Court is not a representation dispute. Plaintiffs are not challenging a Board certification, seeking to have this Court certify a representative, or asking this Court to set aside the November 2010 election. Instead, plaintiffs are claiming that Delta is currently discriminating against them on the basis of their past union status. Plaintiffs' claims are thus similar to the garden-variety discrimination claims over which courts regularly exercise jurisdiction under § 152, Third and Fourth. See, e.g., Atlas Air, Inc. v. Air Line Pilots Ass'n, 232 F.3d 218, 226 (D.C.Cir.2000) (reversing summary judgment for employer where employer "selectively penalize[d] unionized employees so as to interfere with, coerce, or influence their decision to exercise their rights under the RLA").
The complication in this case is that, at the same time that plaintiffs are before this Court complaining of alleged discrimination by Delta on the basis of their past union status, the union that represented plaintiffs in the past is before the Board complaining of Delta's alleged interference in the November 2010 election. The relevant question, then, is whether this Court's exercise of jurisdiction over plaintiffs' discrimination claims would have the effect of resolving the representation dispute before the Board.
The Court finds that it would not. In the Board proceedings, the AFA is seeking to have the result of the November 2010 election set aside on the ground that the election was tainted by (among other things) Delta's pre-election grant of pay raises to the non-unionized Delta flight attendants and its refusal to grant comparable pay raises to the unionized Northwest flight attendants. Here, plaintiffs are challenging Delta's refusal, after the election, to align the compensation of the no-longer-unionized Northwest flight attendants with the compensation of the never-unionized Delta flight attendants.
Delta contends, however, that the Court should decline to exercise jurisdiction because Delta is asserting the same defense to both sets of interference claims. Specifically, Delta is arguing both before this Court and before the Board that it was required to maintain separate compensation systems by virtue of the Board's requirement that elections be conducted under "laboratory conditions."
"Laboratory conditions" is essentially a term of art that the Board uses to describe an election atmosphere that is free of interference, influence, or coercion. See Zantop Int'l Airlines, Inc., 6 N.M.B. 834, 835 (1979) ("The Board seeks to promote `laboratory conditions' in conducting representation elections."); Horizon Air Indus., Inc. v. Nat'l Mediation Bd., 232 F.3d 1126, 1133 (9th Cir.2000) ("The atmosphere required for [representation elections] is characterized by what the NMB calls `laboratory conditions.'"). Granting or withholding benefits in order to influence an election may interfere with laboratory conditions and therefore provide the basis for an interference charge. Mercy Air Serv., Inc., 29 N.M.B. 55, 73 (2001).
As a general matter, the Board requires that laboratory conditions be maintained from the date that the employer becomes aware of the organizing drive until the date that the election concludes. Delta Air Lines, Inc., 37 N.M.B. 281, 286 (2010). But if the election results are challenged, the Board requires that laboratory conditions continue to be maintained during the pendency of the challenge. Stillwater Cent. R.R., 33 N.M.B. 100, 106 (2006); Bowman Decl. Ex. B (letter from Board reminding the parties to maintain laboratory conditions during the pendency of interference charges and any new election). Thus, says Delta, even though plaintiffs are challenging conduct that occurred after the election, the Court will nevertheless be called on to interpret and apply the very same laboratory-conditions requirement that is at issue in the Board proceedings.
Delta is incorrect for two reasons:
First, unlike the Board, this Court does not, in fact, have to decide what laboratory conditions require. The Board must decide whether Delta's pre-election pay raises to the Delta flight attendants and its corresponding refusal to give the same pay raises to the Northwest flight attendants in fact violated laboratory conditions — i.e., actually interfered with or influenced the election. Cf. Pinnacle Airlines Corp., 30 N.M.B. 186, 214 (2003) ("The issue before the Board is whether laboratory conditions have been tainted, not whether the Carrier's discharge of Crutcher and Mattox was unlawful under the Act."). Delta's subjective motivation — although not irrelevant to the Board's analysis — is not conclusive.
In this case, however, the Court's focus will be on what was in Delta's head when, after the election, Delta decided to continue to pay the Northwest flight attendants differently from the Delta flight attendants. As the Court explains below, if Delta was motivated by anti-union animus, then it can be held liable. But if Delta was not motivated by anti-union animus — if instead it was motivated by a sincere belief that the need to maintain laboratory conditions required it to maintain separate compensation systems — then Delta cannot be held liable, even if Delta's good-faith belief was mistaken. In short, what this Court needs to decide is not what laboratory conditions required of Delta, but what Delta believed laboratory conditions required of Delta.
Second, even if the Court is wrong — and even if the Court does have to decide what laboratory conditions actually required of Delta — the question facing the Court would still differ from the question facing the Board. The Board has to decide what laboratory conditions required before the election, when the AFA was representing the Northwest flight attendants and a binding CBA was in effect. This Court, by contrast, would have to decide what laboratory conditions required after the election, when the AFA had been decertified and the CBA was no longer in effect. Those are very different questions. To convince the Board that Delta's refusal to give a pay raise to Northwest flight attendants tainted the election, the AFA will have to overcome the argument that Delta was bound by the CBA and that any deviation from the CBA would itself have tainted laboratory conditions. The plaintiffs in this action face no such obstacle. Indeed, central to plaintiffs' argument in this case is that, precisely because the CBA was no longer in effect after the election, Delta was free to do what (according to plaintiffs) it had long been claiming that it wanted to do: align the pay of Delta and Northwest flight attendants.
For these reasons, this Court's resolution of plaintiffs' claims will not affect the Board's consideration of the AFA's interference claims and will not have the effect of resolving the representation dispute. The Court therefore rejects Delta's argument that it should abstain from exercising jurisdiction over plaintiffs' claims under § 152, Third and Fourth.
Delta next argues that plaintiffs have failed to state a claim under § 152, Third and Fourth. According to Delta, plaintiffs' claims boil down to a contention that the RLA required Delta to align its flight attendants' compensation once the union was decertified and the CBA was no longer in effect. Because the RLA does not impose such a requirement, Delta argues, plaintiffs have failed to state a claim.
Delta mischaracterizes plaintiffs' claims. Plaintiffs do not claim that the RLA required Delta to align compensation. Instead, plaintiffs allege that Delta's refusal to align compensation was unlawful because it was motivated by anti-union animus. Such an allegation states a claim for interference, influence, and coercion under
In their complaint, plaintiffs seek an injunction requiring Delta to align not just their compensation, but the compensation of all Northwest flight attendants. And plaintiffs seek an award of backpay not just for themselves, but for all Northwest flight attendants. Because plaintiffs did not file this lawsuit as a class action, Delta argues, plaintiffs have no standing to seek relief on behalf of flight attendants who are not parties. Accordingly, Delta moves to strike plaintiffs' claims for relief on behalf of the non-party flight attendants.
Plaintiffs argue that they have standing to seek relief for non-party flight attendants because affording relief to those flight attendants is necessary to remedy violations of plaintiffs' own rights. According to plaintiffs, their rights were violated not only because Delta unlawfully paid them less than their Delta counterparts, but also because Delta paid the other Northwest flight attendants less than the Delta flight attendants, and thereby violated plaintiffs' right to organize their coworkers without interference, influence, or coercion from Delta. Plaintiffs argue that Delta's actions have chilled support among plaintiffs' coworkers for unions in general and for the AFA in particular.
The doctrine of standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To satisfy the constitutional requirement, a plaintiff must establish that he suffered an "injury in fact" (that is, the invasion of a legally protected interest); a causal connection between the injury and the conduct complained of; and a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Even if a plaintiff can establish the constitutional elements of standing, however, he may not be entitled to pursue his claim. As a rule, "the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth, 422 U.S. at 499, 95 S.Ct. 2197.
It has been over 80 years since the Supreme Court first recognized an implied cause of action under § 152, and yet, to the best of the Court's knowledge, no court has ever explicitly held that an employee may maintain a claim under § 152 based on a violation of another employee's rights. To be sure, it is possible to find cases — such as Adams v. Federal Express Corp., 470 F.Supp. 1356 (W.D.Tenn.1979) — in which courts have entered broad injunctions prohibiting retaliatory transfers and discharges of non-party employees. But although Adams briefly addressed the issue of standing, Adams did not explain its implicit holding that an employee may seek an injunction on behalf of non-parties. It may be that the employer in Adams did not contest the issue because the employer was not concerned about the scope of the negative injunction being sought in that case — an injunction that simply ordered the employer not to do something.
In contrast to Adams, plaintiffs here seek an affirmative injunction requiring Delta to pay millions of dollars to thousands of flight attendants who are not parties to this case. Plaintiffs have not
Therefore, even assuming (without deciding) that plaintiffs have met the constitutional prerequisites for standing, the Court concludes that plaintiffs cannot overcome the prudential bar against asserting claims based on wrongs to — and seeking relief on behalf of — third parties. If plaintiffs' rights under § 152 have been violated, then they can seek monetary relief for themselves. But they cannot seek a court order forcing Delta to pay money to flight attendants who are not parties to this action. Delta's motion to strike plaintiffs' claims for relief on behalf of third parties is granted.
Plaintiffs seek a preliminary injunction requiring Delta to: (1) align the compensation structure for its flight attendants; (2) award back pay to Northwest flight attendants from November 4, 2010 onward; and (3) compensate Northwest flight attendants for the difference between the profit-sharing distribution they received in February 2011 and the distribution received by Delta flight attendants. Plaintiffs further seek an injunction prohibiting Delta from conditioning payments to flight attendants on the AFA's withdrawal of the interference charges pending before the Board. As the Court has stricken plaintiffs' claims for relief on behalf of third parties, the Court will consider plaintiffs' motion only with respect to claims for relief on their own behalf.
A court must consider four factors in deciding whether to grant a preliminary injunction: (1) the movant's likelihood of success on the merits; (2) the threat of irreparable harm to the movant; (3) the balance between this harm and the injury that granting the injunction will inflict on the other litigants; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc).
To determine whether plaintiffs are likely to prevail on their claims that Delta's pay practices violate § 152, Third and Fourth, it is first necessary to determine the elements of such claims.
The relevant statutory language prohibits an employer from "interfer[ing] with, influenc[ing], or coerc[ing]" employees in their choice of representatives, § 152, Third; "deny[ing] or in any way question[ing] the right of its employees to join, organize, or assist in organizing the labor organization of their choice," § 152, Fourth; "interfer[ing] in any way with the organization of its employees," § 152, Fourth; or "influenc[ing] or coerc[ing] employees in an effort to induce them ... not to join or remain members of any labor organization," § 152, Fourth. Unlike many other employment and labor-law statutes, this language does not expressly address discrimination or retaliation and does not seem to require any discriminatory intent on the part of the employer. Further muddying the waters, the Eighth Circuit has suggested that anti-union animus is (at least sometimes) an element of § 152, Third and Fourth cases, but only in post-certification cases (that is, when a union has already been certified):
Bhd. of Locomotive Eng'rs v. Kan. City S. Ry., 26 F.3d 787, 795 (8th Cir.1994). This language seems to imply that, in a pre-certification case (such as this action), evidence of anti-union animus is not necessary. The Eighth Circuit does not say so explicitly, though, and any implication to that effect is dicta. Moreover, nothing in the language of § 152 suggests such a distinction. Reflecting that fact, a survey of relevant cases demonstrates that most courts require a showing of anti-union animus in pre-certification cases — and, indeed, the requirement is often crucial to the outcome of those cases.
Plaintiffs argue that Delta's actions amount to facial discrimination on the basis of past union membership and that, when such facial discrimination exists, evidence regarding the motive of the employer becomes irrelevant. But plaintiffs read too much into the decisions on which they rely. In National Labor Relations Board v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), the Supreme Court held that "[s]ome conduct... is so inherently destructive of employee interests that it may be deemed proscribed without need for proof of an underlying improper motive." Id. at 33, 87 S.Ct. 1792 (citation and quotations omitted).
In Atlas Air, Inc. v. Air Line Pilots Association, 232 F.3d 218 (D.C.Cir.2000), the D.C. Circuit declined to decide whether, under the RLA, there is similarly a class of "inherently destructive" acts. Id. at 225. Noting that most acts found to be "inherently destructive" have been those that discriminate solely on the basis of union membership, the court instead read Great Dane to illustrate "the concept that the very nature of actions against unionized labor by an employer can in and of itself provide evidence of the animus generating those acts." Atlas Air, 232 F.3d at 225-26.
The Court agrees with the D.C. Circuit's application of Great Dane in the RLA context. Great Dane chose to identify a facially discriminatory act as "inherently destructive" and therefore presumably unlawful. But Great Dane did not hold that an act taken without anti-union animus was unlawful; to the contrary, Great Dane clearly permits the employer to defend itself with evidence that it was not motivated by anti-union animus when it acted in a facially discriminatory manner. What Great Dane seemed to hold was that some acts are so "inherently destructive" that, in and of themselves, they provide sufficient evidence of anti-union animus. In short, in a case involving an "inherently destructive" act — just as in a case not involving an "inherently destructive" act — a lack of anti-union animus on the part of the employer is a defense to liability. The only difference between the two types of cases is that, when the employer commits an "inherently destructive" act, the employer bears the burden of proving that it did not act with anti-union animus.
At least for purposes of plaintiffs' motion for a preliminary injunction, then, the Court agrees that Delta should bear the burden of proof on the issue of intent. The Court will find that plaintiffs are likely to succeed on the merits of their claims under the RLA unless Delta can show that its actions were likely not motivated by anti-union animus.
As discussed earlier, Delta contends that it did not align the flight attendants' compensation because, under the law, it was forbidden to do so — specifically, that because the AFA's charges of election interference were pending before the Board, Delta had to maintain laboratory conditions, and aligning the compensation of flight attendants would have violated that requirement. The parties put a lot of effort into arguing whether Delta's position is legally correct — that is, into arguing whether the need to maintain laboratory conditions in fact required Delta to maintain separate compensation systems. Again, though, the issue in this case is not
The Board has said that "[c]hanges in working conditions during the laboratory period may taint laboratory conditions, except if the changes were planned before the laboratory conditions attached, or there is clear and convincing evidence of a compelling business justification." Mercy Air Serv., Inc., 29 N.M.B. 55, 73 (2001) (citation and quotations omitted). Delta argues that, under Board precedent, it would have tainted the laboratory conditions to grant new, unplanned benefits to a group of flight attendants shortly after those flight attendants voted against union representation. But plaintiffs disagree, arguing that because Delta planned to align the compensation of flight attendants before the laboratory-conditions requirement attached, Delta's following through on its plan would not have tainted laboratory conditions.
Plaintiffs seem to misunderstand or mischaracterize Delta's plan. Delta has indeed asserted on many occasions that it plans to align the compensation of flight attendants as soon as possible. But this is not the same as asserting that it plans to align the compensation of flight attendants the moment that the Northwest flight attendants are no longer covered by a CBA. To the contrary, Delta has consistently maintained that it will align the compensation of flight attendants as soon as possible after the issue of representation has been fully and finally resolved. See, e.g., McMahon Decl. Ex. 1 (memo from Delta to flight attendants stating that "[a]s we've consistently said since the merger, it is our desire to align all aspects of flight attendant pay, benefits, work rules and seniority as quickly as possible, but we cannot [do that] until representation is finally resolved, and we will not `cherry pick' — pay (including profit sharing), benefits and work rules all affect each other and must be aligned as a package — not individual items").
That this has always been Delta's plan is underscored by Delta's similar treatment of other groups of workers during the merger. See Kight Decl. ¶ 6 ("[Northwest] employees in other work groups received Delta's pay structure only when representation issues were finally resolved and Delta could commence the process of aligning the rest of their package of pay, benefits and work rules."). Notably, so far as it appears from the record, Delta has consistently waited until representation issues were finally resolved before aligning compensation — and has done so regardless of how the representation issues were resolved. See Kight Decl. ¶ 6 ("[Northwest] pilots and flight dispatchers, who continue to have union representation postmerger, did not receive stand-alone pay increases before Delta began the process of completely aligning their package of wages, benefits and work rules.... The same approach was applied for other work groups where [Northwest] union representation was terminated, ... but only after representation issues were finally resolved by the NMB.").
Delta has also been consistent in honoring the provisions of former CBAs — that is, in maintaining two separate compensation systems — before representation issues are finally resolved. Delta has honored
Based on the limited record before the Court, it appears that Delta has consistently represented that it would align the compensation of any particular group of workers only after representation issues regarding that group have been resolved, and that Delta has acted consistently with its representations. It thus seems eminently reasonable for Delta to be concerned that if it made an exception — if, contrary to its representations and contrary to its practice with respect to other groups of employees, it aligned the compensation of Northwest flight attendants before representation issues were resolved — Delta would open itself up to charges of interference. See Mercy Air Serv., Inc., 29 N.M.B. at 73 (the grant of unplanned benefits may constitute interference); cf. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964) ("The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove.").
The reasonableness of Delta's interpretation of the laboratory-conditions requirement is bolstered by the fact that the AFA itself initially took the position that Delta had to abide by the terms of the Northwest CBA while the AFA's interference charges were pending before the Board. In a letter to the Board sent immediately after the election, the AFA cited Delta's statement that it would not be able to align pay and benefits while interference claims were pending, and, far from disputing that statement (as plaintiffs do now), the AFA agreed "that the status quo working conditions must be maintained during the Board's investigation of carrier interference."
Plaintiffs nevertheless contend that Delta's professed concern about violating laboratory conditions is pretextual. First, plaintiffs argue, Delta's concern is spurious because the AFA has repeatedly offered to waive any potential claims of interference based on the alignment of pay and profit sharing between Northwest and Delta flight attendants. Citing § 17.0 of the Board's representation manual,
Plaintiffs next argue that Delta's public statements blaming the AFA for Delta's inability to align pay is evidence of Delta's anti-union motives. Plaintiffs cite several cases decided under the NLRA in which courts have found that statements blaming the union for the employer's inability to grant pay increases were evidence of anti-union animus. See Sara Lee Bakery Grp. v. N.L.R.B., 61 Fed.Appx. 1, 8 (4th Cir. 2003) (per curiam); Borman's, Inc., 296 N.L.R.B. 245, 1989 WL 224271, at *6 (1989).
Undoubtedly, Delta's statements evince hostility toward the AFA. But the fact that Delta does not like the AFA does not mean that everything Delta does is motivated by anti-union animus. The question before the Court is whether a particular decision of Delta — its decision not to align the compensation of flight attendants — was motivated by anti-union animus. Given what appears to be undisputed evidence that Delta's consistent practice has been to wait to align pay, benefits, and work rules for all groups of employees until after the representation issues have been resolved — regardless of the outcome of the issues, and regardless of whether Delta's practice resulted in more or less favorable treatment of unionized employees — the Court does not believe that Delta's anti-AFA statements establish that its decision to delay the alignment of flight-attendant compensation was motivated by anti-union animus. That is particularly true given that the AFA itself once expressed agreement with Delta's understanding of what the need to maintain laboratory conditions required.
Plaintiffs' final argument is that Delta's assertion that it must honor the former
Before the Court addresses the specifics of plaintiffs' arguments, it is important to note that the parties to a contract often dispute the meaning of particular terms. The fact that the parties to a contract disagree about what a provision of the contract requires does not mean that either of the parties is not committed to honoring the contract. It simply means that the parties have different understandings of some of the language in the contract.
As Delta points out, the flight attendants' interlocking system of compensation, benefits, seniority, and work rules is very complex, see Watson Decl. ¶¶ 4, 7 & Ex. C, and disputes over the meaning of particular terms are inevitable. Although plaintiffs have identified a handful of instances in which they believe Delta violated the CBA, Delta has submitted evidence that it has complied with over 80 different work rules required under the CBA, many of which differ in material respects from their non-CBA counterparts. Watson Decl. ¶ 4 & Ex. C. Even if Delta is found to be technically out of compliance with a couple of the provisions of the CBA, it does not necessarily follow that Delta is lying when it asserts its belief that, in order to maintain laboratory conditions, it must continue to compensate Northwest flight attendants under the terms of the CBA. With this context in mind, the Court turns to plaintiffs' allegations regarding Delta's failure to comply with the CBA.
Plaintiffs first argue that Delta has stopped processing grievances. As the RLA requires, the CBA provides for a comprehensive, multistage grievance process. See Watson Decl. Ex. A §§ 27-28 (CBA provisions governing grievance procedures and the parties' system board of adjustment); 45 U.S.C. § 184 (requiring the establishment of a system board of adjustment to determine grievances). Therefore, plaintiffs contend, if Delta sincerely believed that it was bound to honor the CBA, it would not have stopped following the CBA's grievance process.
The problem with plaintiffs' argument is that the CBA's grievance process assumes the existence and participation of a union. Following the decertification of the AFA, Northwest flight attendants have not been represented by a certified union. In the absence of a certified union, it is simply not possible for Delta to fully comply with the grievance procedures set forth in the CBA.
Plaintiffs contend that Delta could nevertheless follow the initial stages of the CBA's grievance procedure, in which the participation of the union is permitted but not required. Delta responds that the initial stages of its non-contract dispute-resolution process do not differ in any material respect from the initial stages of the CBA grievance process. Delta also points out that it has worked with the AFA since the union was decertified to address the grievance procedure (and other types of transition issues), and the AFA has not once complained about Delta's failure to follow the CBA's grievance process. Watson Decl. ¶ 3 & Ex. B. Given the state of the record, the Court is not in a position to resolve the factual dispute over the extent to which the initial stages of Delta's non-contract
Plaintiffs next argue that Delta no longer schedules flight attendants according to the CBA. Delta contends that plaintiffs are simply mistaken. Although the record is sparse, Delta appears to have the better of the argument. Plaintiffs rely on a single, conclusory assertion that Delta "is no longer scheduling flight attendants pursuant to the Northwest CBA." McMahon Decl. ¶ 6. Delta, in contrast, has submitted a declaration asserting that (1) the Northwest manager responsible for scheduling prior to the merger continues to support scheduling; (2) scheduling is primarily done by computer, and Delta has not made material changes to the computer program used to schedule Northwest flight attendants both before and after the merger; and (3) the number of "scheduling resolutions requests" (65) that arose in the four-month period from January 1, 2011 through April 30, 2011 is comparable to the number of "work rule grievances" (85) that arose in the four-month period leading up to the election.
Plaintiffs next contend that, under the terms of the Northwest CBA, they are entitled to share in the more lucrative profit-sharing distribution given to the Delta flight attendants. Plaintiffs rely on the following language from the CBA:
McMahon Second Decl. Ex. 1 § 3. 1. Under this provision, plaintiffs argue, flight attendants who are eligible for multiple profit-sharing plans are to be paid under the more generous plan. Delta's failure to follow this provision, plaintiffs contend, is evidence of pretext.
Plaintiffs are wrong on both counts. First, the plain language of the provision operates to make a participant eligible for the "Plan" — that is, the profit-sharing plan established under the CBA — in the event that (1) the participant is eligible for some other plan and (2) the CBA's plan is a better deal. This language does not purport to give an employee an entitlement to participate in some other plan. Second, even if plaintiffs' interpretation were correct, Delta's interpretation is at least reasonable; it is, after all, shared by this Court. Thus, Delta's failure to allow the former Northwest flight attendants to participate in the Delta profit-sharing plan is not evidence of pretext.
Finally, plaintiffs argue that, contrary to its position that it cannot grant new benefits until representation is resolved, Delta recently offered a temporary, voluntary severance program for which both Northwest and Delta flight attendants were eligible. See McMahon Second Decl. ¶ 4 & Ex. 3. Delta's grant of this benefit does
Moreover, even under Delta's strict interpretation of the laboratory-conditions requirement, an employer retains the ability to respond to business necessities. Cf. Delta Air Lines, Inc., 37 N.M.B. 281, 307 (2010) (where there is clear and convincing evidence of a compelling business justification, changes in pay do not taint laboratory conditions). The record contains little evidence about whether business necessities prompted the severance program. But it seems to the Court that a one-time, short-term offer of a voluntary severance package in order to entice some employees to retire is more likely to be found not to interfere with laboratory conditions than sweeping changes to the compensation, benefits, seniority, and work rules applicable to thousands of employees. At least at this early stage of the proceedings and without the benefit of more extensive briefing, the Court is not persuaded that Delta's offering of the severance program demonstrates that its longstanding position about its obligation to maintain laboratory conditions is pretextual.
In sum, the Court finds that plaintiffs are not likely to prevail on their claims. The evidence in the record indicates that the disparity in Delta's treatment of Northwest and Delta employees is likely motivated by a legitimate and reasonable understanding of the laboratory-conditions requirement. Although there is some evidence that Delta may have deviated from the Northwest CBA in a couple of respects — and there is certainly evidence demonstrating Delta's hostility toward the AFA — the Court does not believe that this evidence demonstrates that Delta's concern about laboratory conditions is likely pretextual.
In addition to plaintiffs' likelihood of success on the merits, the Court must also weigh the threat of irreparable harm to plaintiffs, the balance between that harm and the harm that granting the injunction would inflict on Delta, and the public interest.
Even though the Court does not believe that plaintiffs have standing to seek relief on behalf of third parties (for the reasons described above), the Court may nevertheless consider the impact of Delta's actions on those third parties in determining whether plaintiffs face a threat of irreparable harm. See Arcamuzi v. Cont'l Air Lines, Inc., 819 F.2d 935, 938-39 (9th Cir.1987). Plaintiffs have submitted e-mails from Northwest flight attendants chastising the AFA for pursuing interference claims and blaming the AFA for depriving the flight attendants of better compensation. See Gilmartin Second Decl. Ex. 1. Although few in number, these e-mails reflect resentment of the AFA, and some of the authors of these e-mails suggest that their feelings are widespread.
The Court does not doubt that plaintiffs are threatened with some degree of irreparable
The Court also finds that the balance of harms does not favor plaintiffs. If the Court were to order Delta to grant pay raises and a larger profit-sharing distribution to plaintiffs, and Delta were later to prevail in this litigation, Delta would be unlikely to be able to recoup its losses. Moreover, any attempt by Delta to recoup its losses would likely have a more destabilizing effect than would delaying any monetary recovery to which plaintiffs eventually prove themselves entitled.
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:
LET JUDGMENT BE ENTERED ACCORDINGLY.
