UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ALLIED PILOTS ASSOCIATION, ) ) Plaintiff, ) ) Civil Action No. 08-191 (EGS) v. ) ) AMERICAN AIRLINES, INC., ) ) Defendant. ) )

MEMORANDUM OPINION

This case involves a dispute between the Allied Pilots

Association (“APA” or “Plaintiff”) and American Airlines

(“American” or “Defendant”) regarding American’s unilateral

modification of its Airport Familiarization Requirements for its

pilots during contract negotiations under § 6 of the Railway

Labor Act,

et seq. (“RLA”). Pending before the

Court is Defendant’s Motion for Summary Judgment and Plaintiff’s

Motion for Preliminary and/or Permanent Injunction. Upon

consideration of the motions, the responses and replies thereto,

the applicable law, and the entire record, the Court GRANTS

Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s

Motion for Preliminary or Permanent Injunction for lack of

subject matter jurisdiction. I. BACKGROUND

A. The Parties and the “Green Book”

American is a “common carrier by air engaged in interstate

and foreign commerce” within the meaning of the RLA. Def.’s SMF

¶ 1 (citing

). The APA is the certified

collective bargaining representative of the airline pilots

employed by American. Def.’s SMF ¶ 2. Over the years, the APA

and American have entered into a series of collective bargaining

agreements, commonly referred to as the “Green Book.” Def.’s SMF

¶ 5.

The Green Book provides the controlling terms and conditions

of employment for American’s pilots, including provisions

addressing the compensation that pilots receive for time spent in

training. Def.’s SMF ¶ 5; Pl.’s SMF ¶¶ 5-8. Pilots at American

are required to undergo training when they are initially assigned

to a particular aircraft and for recurrent training every nine

months at American’s Flight Academy, in Fort Worth, Texas. Pl.’s

SMF ¶ 6. Pursuant to the Green Book, pilots are compensated for

time spent operating the aircraft; time spent in training at the

Flight Academy; time spent traveling to and from the Flight

Academy; time spent between flights during multiday flight

sequences, including time spent overnight at hotels between

flights; and one hour of preflight preparation time prior to a

flight’s scheduled departure. Pl.’s SMF ¶ 20. The Green Book

2 also requires pilots to complete six hours of “distance training”

every eighteen months.1 While pilots are not specifically

compensated for this six hour distance learning component, they

may complete the task in other compensated times such as during

breaks at the Flight Academy. See Def.’s Resp. to Pl.’s SMF ¶

18.

The most recent Green Book went into effect on May 1, 2003.

Def.’s SMF ¶ 6. While the amendable date of the most recent

Green Book was May 1, 2008, the contract contained an early

opener provision, which allowed either party to begin

negotiations for a successor agreement any time after May 1,

2006, upon 60 days notice. Def.’s SMF ¶ 7. On July 21, 2006,

American exercised its right to commence negotiations, and the

1 The Federal Aviation Administration defines distance training as “training without an instructor or classroom or a use of a flight training device or a simulator, or without being presented or proctored by an instructor.” Pl.’s SMF ¶ 10. American’s current distance training consists of computerized materials and examinations to be completed at a pilot’s discretion. American does not dispute that, other than the six hour distance learning component that American requires, the Green Book currently provides that all other training is to occur within the training day at the Flight Academy. Def.’s Resp. to Pl.’s SMF ¶ 13. American has made unsuccessful attempts in the past to negotiate increases in the distance training program with the APA. See Pl.’s SMF ¶¶ 14-15. The parties, however, are currently engaged in renewed discussions regarding the imposition of new distance learning requirements as part of ongoing § 6 negotiations for a Green Book. See Pl.’s SMF ¶ 56. The parties dispute whether the negotiations regarding distance learning encompass the Airport Familiarization Modules at issue in this case. See infra n. 5; see also Pl.’s SMF and Def.’s Resp. Thereto ¶¶ 62-64.

3 parties have been engaged in formal contract negotiations under

§ 6 of the RLA since that time. Def.’s SMF ¶ 59.

B. Events Leading Up to the Dispute at Issue

The Federal Aviation Administration (“FAA”) and American

have established certain requirements that pilots must satisfy in

order to be qualified to fly into or take off from certain

designated airports (“special qualification airports”). Def.’s

SMF ¶¶ 16, 20-21; see also Fed. Aviation Reg. § 121.455. These

requirements include American’s “Airport Familiarization

Requirements.” Def.’s SMF ¶ 16. The purpose of the Airport

Familiarization Requirements is to assist pilots in gaining

familiarity with the unique conditions of certain airports prior

to flight. Def.’s SMF ¶ 16. These requirements are set forth in

American’s Flight Manual, which contains the operating policies

and procedures governing American’s pilots. See Def.’s SMF ¶ 20.

American’s Airport Familiarization Requirements are

determined and set by American’s Managing Director of Flight

Operations and American’s Vice President of Flight, with advice

from American’s Flight Operations Council. Def.’s SMF ¶¶ 18-19.

Over the years, American has made numerous modifications to its

Airport Familiarization Requirements for pilots. See Def.’s SMF

¶¶ 27, 35. For instance, at different points in time, American

has required its pilots to review FAA approved “photo pages” of

special qualification airports, watch videos regarding the

4 airports, or serve as a “pilot flight crewmember” on a flight to

these airports. Def.’s SMF ¶¶ 29, 32. Pilots were never

specifically compensated for viewing the photo pages or watching

the videos, although review of these materials generally occurred

during the one hour of preflight preparation time for which

pilots are compensated. Def.’s SMF ¶¶ 30, 33.

In 2005, American began developing computer-based programs

to satisfy its Airport Familiarization Requirements (“Airport

Familiarization Modules”). The programs were developed using

“Flightscape” - a computer flight modeling system used by the

National Transportation Safety Board for incident and accident

investigations. See Def.’s SMF ¶ 13 (“Flightscape software

permitted American to create a computerized display, using

satellite imagery, terrain elevation data, and actual radio

transmissions to give its pilots a comprehensive view of what it

is like to fly into a particular airport.”) The Flightscape-

based Airport Familiarization Modules educate pilots on “where [a

particular] airport is, areas of concern for the airport,

approach and departure procedures,” as well as a “flight

animation tool that presents flight landing as a video.” Def.’s

SMF ¶ 14. American considers the Airport Familiarization Modules

to be an enhanced version of its airport familiarization videos

and “picture pages,” and the APA concedes that the modules

provide familiarization for certain airports. See Def.’s SMF

5 ¶ 34 and Pl.’s Resp. Thereto. American’s Airport Familiarization

Modules are available to its pilots online through American’s

website, AAPilots.com. Def.’s SMF ¶ 15.

On February 8, 2006, American briefed the APA on its initial

development of the Airport Familiarization Modules. Def.’s SMF

¶ 22. During this meeting, American informed the APA that it did

not intend to specifically compensate pilots for their review of

the modules, consistent with American’s past practice regarding

its Airport Familiarization Requirements.2 Def.’s SMF ¶ 23; see

also Def.’s SMF ¶ 24 (“The Green Book contains provisions

addressing compensation pilots receive for training. The Green

Book has never provided that pilots are to be compensated for

time spent fulfilling American’s Airport Familiarization

2 The parties dispute whether American told the APA that the Airport Familiarization Modules should be reviewed as part of preflight duties. See Def.’s Resp. to Pl.’s SMF ¶ 31 (“American disputes that it told APA representatives that it expected pilots to review the Flightscape-based Airport Familiarization modules during the hour of compensated pre-flight time.”). More generally, it is American’s position that “[n]either [the Flight Manual] nor the Green Book indicates that Airport Familiarization requirements are to be performed in the one-hour, pre-flight period. Pilots have completed the Flightscape Airport Familiarization requirements at homes, in hotels or at their bases.” Def.’s Resp. to Pl.’s SMF ¶ 77. The APA, however, focuses on the fact that prior to the November 2007 Revision “the Flight Manual consistently provided that any required review take place ‘prior’ to the pilot’s first flight into the airport in question, without any further specification of how much ‘prior’ the review was to take place.” Pl.’s SMF ¶ 42. This changed with the advent of the November 2007 Revision, however, as pilots were required to perform their review prior to assignment to a flight. See Pl.’s SMF ¶ 76.

6 Requirements and American has never specifically paid pilots for

completing Airport Familiarization Requirements.”). On March 31,

2006, American officially revised its Flight Manual to require

pilots to complete an Airport Familiarization Module for

Guatemala City, Guatemala, prior to a pilot’s first flight into

that airport. See Def.’s SMF ¶¶ 25-26; see also Def.’s SMF ¶ 35

(explaining that the Guatemala City airport was the first airport

for which an Airport Familiarization Module was developed).

Pilots were permitted to complete this Airport Familiarization

Module at home, in a hotel, at their bases, or after check-in if

they had sufficient time to view the module during the one hour

preflight period. Def.’s SMF ¶ 40.3

3 Pilots have numerous responsibilities during this one hour preflight period, including planning for the aircraft, looking at weather patterns, completing the checklist regarding the aircraft, and briefing the crew. See Def.’s Ex. B, Dep. of Peter Horan at 71 (explaining that sometimes it takes more than one hour to complete these responsibilities because of “difficult weather conditions or re-releases of flight, delayed inbound crews”). Indeed, the APA acknowledged that it would often be difficult for pilots to complete both their general preflight duties and the required Airport Familiarization Module during the hour immediately preceding departure. See Pl.’s Ex. 8, APA News Digest dated June 9, 2006 (“Trying to fit Flightscape in with your other required duties after signing in for your trip may make it difficult to complete ALL your preflight duties prior to leaving for the aircraft. Because we know that pilots will take whatever time is necessary to properly prepare, departure delays may result from pilots taking the extra time to review the required video.”). The APA advised its pilots, however, that “[t]here is NO requirement to accomplish this training at home, and there is no requirement to sign in early to view a video.” Pl.’s Ex. 8, APA News Digest dated June 9, 2006.

7 After informally expressing concern to American regarding

the requirement that pilots review Airport Familiarization

Requirements without additional compensation, on May 3, 2006, the

APA filed Presidential Grievance 06-021 (“Presidential

Grievance”) under the terms of the Green Book, protesting “the

Company’s failure to properly compensate pilots for training.”

See APA Resp. to Def.’s SMF ¶¶ 9-10 (“The grievance protested the

lack of separate compensation for review [of the Airport

Familiarization Modules] on the premise that review constituted a

training event.”); see also Def.’s Ex. 3, Presidential Grievance

06-021 (“Pursuant to the May 1, 2003, Agreement between

[American] and the airline pilots in its service, as represented

by the [APA], the undersigned, on behalf of all pilots, hereby

files this grievance protesting the Company’s failure to properly

compensate pilots for training per § 6.D, and all related

sections of the Agreement, and past practice.”). Despite the

pending grievance, American subsequently modified the Airport

Familiarization Requirements in its Flight Manual on numerous

occasions in 2006 and 2007, adding special qualification airports

and modifying those for which the review of an Airport

Familiarization Module would be required, strongly encouraged, or

simply available. Def.’s SMF ¶¶ 35-36; Pl.’s SMF ¶ 42. As of

November 12, 2007, American required pilots to review Airport

8 Familiarization Modules for 11 special qualification airports.

Def.’s SMF ¶ 17.

On June 20, 2006, the APA Negotiating Committee presented

American representatives with a proposal to resolve the

Presidential Grievance regarding compensation for review for the

Airport Familiarization Modules. Def.’s SMF ¶ 42; see also

Def.’s Ex. 19, Flightscape Pay Proposal dated June 20, 2006

(requesting that pilots be paid one hour of flight pay for each

Airport Familiarization Module required to be viewed). American

rejected the proposal and presented a counter-proposal, which was

subsequently rejected by the APA. Def.’s SMF ¶¶ 44-45. On July

7 and July 11, 2006, American presented two more formal counter-

proposals. See Def.’s SMF ¶¶ 50-52 (proposing that pilots be paid

one minute of flight pay for every three minutes of time spent

reviewing an Airport Familiarization Module).4

Amid negotiations on the Presidential Grievance, on July 21,

2006, American submitted notice to officially commence § 6

negotiations under the Green Book. Def.’s SMF ¶ 59. These § 6

Green Book negotiations are still ongoing.5

4 Under the terms of the Green Book in effect on October 24, 2007, one day of training pay was the equivalent of three hours of flight pay. Def.’s SMF ¶ 66; Pl.’s SMF ¶ 8. 5 The parties dispute whether the Green Book negotiations subsumed the negotiations related to the Presidential Grievance. Compare Pl.’s SMF ¶ 52 (“As was traditional, the APA Board of Directors and its Negotiating Committee decided that the specific Flightscape/Airport Familiarization negotiations would be folded into the broader Section 6 negotiations.”) with Def.’s Resp. to

9 Having received no response to its July 2006 counteroffer,

on May 3, 2007, American submitted a proposal to the APA in which

it renewed its efforts to settle the Presidential Grievance. See

Def.’s SMF ¶ 55-57; Pl.’s Ex. 39, Letter from American to APA

(explaining that “a negotiated resolution would be in the best

interest of both parties,” and offering to compensate pilots at a

1:3 ratio). On this same date, American also submitted a § 6

negotiation proposal on distance learning. See Pl.’s SMF ¶¶ 63-

64. Soon thereafter, the APA reconstituted its negotiation team,

and on October 24, 2007, the APA submitted a comprehensive

proposal for the contents of the new Green Book, including a

proposal on “Distance Learning/Web Based Training” as well as

“[l]earning related to operational issues (e.g. Airport

Familiarization — Flightscape).” Def.’s SMF ¶ 64; Pl.’s SMF

¶ 71; see also Def.’s SMF ¶¶ 65, 67 (proposing that “every six

Pl.’s SMF ¶ 52 (“American disputes that the opening of negotiations under Section 6 of the RLA necessitated any impact on the ongoing negotiations to settle the APA’s pending grievance concerning the Flightscape-based Airport Familiarization program. Although APA took the position that issues concerning American’s Flightscape-based Airport Familiarization program should be included in Section 6 negotiations, this was not American’s position and American sought to resolve Presidential Grievance 06-021 independently of topics addressed in the Section 6 negotiations. Additionally, American disputes APA’s contention that it was ‘traditional’ to include issues concerning Airport Familiarization or any other pending grievance in Section 6 negotiations.” (internal citations omitted)).

10 hours, or portion thereof, of Distance Learning/Web Based

training will equate to one day of training pay”).6

While negotiations were ongoing, American began experiencing

delayed departures for flights into special qualification

airports because pilots who had not previously reviewed the

Airport Familiarization Modules were reviewing the modules during

the paid, one hour period immediately preceding the flight.

Pl.’s SMF ¶ 72. To prevent these departure delays, on October 5,

2007, American announced that it was going to revise its Flight

Manual to require pilots to review the relevant Airport

Familiarization Modules “in advance of any assignment” to a

special qualification airport, rather than simply prior to the

pilot’s first flight to that airport. Def.’s SMF ¶ 37; Pl.’s SMF

¶ 76.7 This revision became effective on November 12, 2007 (the

“November 2007 Revision”). Def.’s SMF ¶ 37. As a result of this

6 Under the APA’s proposed pay scale, a pilot reviewing a one hour Airport Familiarization Module would receive three hours of flight pay. See Def.’s SMF ¶ 67 and Pl.’s Resp. Thereto. American accuses the APA of engaging in regressive bargaining, which the APA disputes. See Def.’s SMF ¶ 69 and Pl.’s Resp. Thereto. 7 Prior to instituting this change, however, on September 12, 2007, American issued a notice to pilots announcing that all pilots qualified to operate aircrafts used for “special qualification airports” would be required to review the Airport Familiarization Modules prior to November 1, 2007, rather than prior to the flight in question. Pl.’s SMF ¶ 73. American retracted the directive the following day, however, stating that “[t]he intent has always been for crewmembers to review the module before their initial trip into a city as part of their flight preparation.” Pl.’s SMF ¶ 74.

11 change, pilots were no longer able to review the Airport

Familiarization Module during the one hour of paid preflight

preparation time. See APA Resp. to Def.’s SMF ¶ 38 (“Although

American has not ‘specifically’ compensated pilots for time spent

completing American’s Airport Familiarization Requirements, prior

to the [November 2007 Revision to the Flight Manual], that time

has always been paid time (unless a pilot chose to do the review

on his/her own time). [The November 2007 Revision] changed that

practice by requiring that the review take place prior to

assignment to the flight rather than prior to the flight (e.g.,

during preflight preparation).” (internal citations omitted)).

APA President, Lloyd Hill, wrote to American to protest the

November 2007 Revision, contending that it was a unilateral

change in compensation and was a violation of the “status quo”

provisions of § 6 of the RLA,

. See Pl.’s SMF

¶ 78 and Def.’s Resp. Thereto. After American refused to rescind

the pre-assignment requirement, the APA filed a complaint in this

Court on February 1, 2008. Comp. ¶ 1. Currently pending before

the Court is American’s motion for summary judgment and the APA’s

motion for injunctive relief. These motions are ripe for

determination.

II. STANDARD OF REVIEW

Summary judgment should be granted only if the moving party

has shown that there are no genuine issues of material fact and

12 that the moving party is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,

(1986); Waterhouse v. Dist. of Columbia,

(D.C. Cir. 2002). A fact is genuine “‘if the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.’” Steele v. Schafer,

(D.C. Cir. 2008)

(quoting Anderson v. Liberty Lobby, Inc.,

(1986)). Facts are material if they “‘might affect the outcome

of the suit under the governing law.’”

(quoting Anderson,

). The party seeking summary judgment bears the

initial burden of demonstrating an absence of genuine issues of

material fact. Celotex,

. In determining whether

a genuine issue of material facts exists, the Court must view all

facts in the light most favorable to the non-moving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986); Keyes v. Dist. of Columbia,

(D.C.

Cir. 2004). “When a motion for summary judgment is properly made

and supported, an opposing party may not rely merely on

allegations or denials in its own pleading; rather, its response

must . . . set out specific facts showing a genuine issue for

trial.” Fed. R. Civ. P. 56(e)(2); see also Celotex,

.

13 III. THE RAILWAY LABOR ACT

The RLA was enacted in 1926, and extended to air carriers in

1936. See

. The purpose of the Act is to

promote stability in labor-management relations in the

transportation industry by providing a comprehensive framework

for resolving labor disputes in order to avoid strikes and

interruptions to interstate commerce. 45 U.S.C. § 151a; see

Hawaiian Airlines, Inc. v. Norris,

(1992).

Under the RLA, courts lack jurisdiction to rule on the

merits of a labor dispute between airline management and employee

representatives. Instead, the court may only decide which

statutorily-mandated dispute resolution procedure is appropriate,

and in certain circumstances, issue an injunction to preserve the

“status quo” pending an arbitral resolution. See Air Line Pilots

Ass’n, Int’l v. Eastern Air Lines, Inc. (“Eastern II”),

(D.C. Cir. 1989) (discussing the “dual framework” for

resolving disputes under the RLA). The Court’s involvement in a

disagreement under the RLA is generally dependant on whether the

dispute at issue is a “major dispute” or a “minor dispute.”

A major dispute “relates to disputes over the formation of

collective bargaining agreements or efforts to secure them.”

Elgin, Joliet & Eastern Ry. Co. v. Burley,

(1945); see also

(explaining that major disputes “look to the

acquisition of rights for the future, not to assertion of rights

14 claims to have vested in the past”). Major disputes generally

involve a carrier’s attempt to modify “rates of pay, rules, or

working conditions” in a fashion not even arguably covered by the

collective bargaining agreement. See Conrail v. Ry. Labor

Executives’ Ass’n,

(1989); Brotherhood of

Locomotive Eng’rs v. Springfield Terminal Ry.,

(1st

Cir. 2000). Major disputes are submitted to the National

Mediation Board for voluntary arbitration and may be subject to

intervention by the President.

; Air Line

Pilots Ass’n, Int’l v. Eastern Air Lines, Inc., (“Eastern I”),

, 895 (D.C. Cir. 1988). The lengthy bargaining and

mediation process associated with a major dispute must be

exhausted before an employer can implement the contested change

in rates of pay, rules, or working conditions. Conrail,

. Accordingly, if an employer attempts to implement the

contested change while this process is pending, the district

court may issue an injunction to maintain the “status quo.” See

(“The district courts have subject-matter jurisdiction to

enjoin a violation of the status quo pending completion of the

required procedures[.]”). If no agreement is reached in the

mediation process, the parties may resort to economic force,

including strikes.

; see also Air Line Pilots Ass’n,

Int’l v. UAL Corp.,

(explaining that the

term “major dispute” comes from the fact that if one party to a

15 labor agreement refuses to bargain with the other, “this is an

ominous sign that a strike is looming,” and emphasizing the

“major disruption” resulting from transportation strikes).

A minor dispute, by contrast, “contemplates the existence of

a collective bargaining agreement.” Elgin,

.

Consequently, minor disputes involve “the interpretation or

application of agreements concerning rates of pay, rules, or

working conditions.” Conrail,

. A dispute is

minor if it “‘arguably’ can be covered by the existing collective

bargaining agreement.” Eastern I, 863 F.2d at 896. In

determining whether an employer’s position is “arguably

justified” by the parties’ collective-bargaining agreement, the

Court may consider “implied contractual terms, as interpreted in

light of past practice.” Conrail,

; see also

Eastern I, 863 F.2d at 896 (“To gain a complete picture of the

relationship between the parties, and thus of the scope of the

dispute to be settled by the provisions of the RLA, courts must

consider the express terms of any agreements and well established

practices that have developed through the past course of

dealings.”). Minor disputes are subject to compulsory

arbitration.

; Eastern I, 863 F.2d at 895.

Because an arbitration board has exclusive jurisdiction over

minor disputes, “the courts do not have jurisdiction to issue

16 status quo injunctions.” Eastern I, 863 F.2d at 895-96.8

Moreover, unlike major disputes, an employer is not required to

maintain the status quo pending resolution of the dispute.

Conrail,

.

In sum, “[t]he court’s jurisdiction to issue a status quo

injunction thus depends on whether the dispute is major or minor,

which in turn depends on whether an existing agreement covers the

subject in controversy.” Eastern II,

. In

determining whether a dispute is major or minor under the RLA,

“‘the court does not consider the merits of the underlying

dispute; its role is limited to determining whether the dispute

can be characterized as involving the proper application or

meaning of a contract provision.’”

(quoting Ry. Labor Exec.

Ass’n v. Norfolk & W. Ry. Co.,

(7th Cir.

1987)); see also id. at 1524 (concluding that the district court

“overstepped its bounds by allowing its view of the merits to

influence its characterization of the dispute as major or minor,”

and emphasizing that it “[i]t is the role of the arbitrator, not

the court, to choose between the parties’ interpretation of the

Agreement.”). Indeed, the dispute is a minor one that must be

8 This Circuit has identified “one narrow exception to this rule.” Eastern II,

n.2. A Court may issue a minor dispute injunction “only when an injunction is necessary to preserve the arbitrator’s ability to decide the dispute.”

In the present case, however, the APA has not claimed that it is entitled to a minor dispute injunction.

17 submitted to arbitration, “even if the court believes that one

party’s interpretation of the contract lacks merit.”

(emphasis in original). “[I]n characterizing the dispute as

major or minor, the central question is whether the carrier’s

reliance on the alleged past practice is ‘totally implausible.’”

Bhd. of Locomotive Eng’rs v. Springfield Terminal Ry., No. 98-

284,

, at *8 (D. Me. Feb. 5, 1999)

(citing Maine Cent. R.R. v. United Transp. Union,

,

783 (1st Cir. 1986)).

Finally, the D.C. Circuit has directed that “[i]f there is

any doubt as to whether a dispute is major or minor a court will

construe the dispute to be minor.” Eastern II,

.

(internal quotation marks omitted). This minor dispute

presumption is “particularly strong” because a collective

bargaining agreement often includes “not only the terms of the

written contract but also ‘the common law of a particular

industry,’” which is “a question of contract interpretation

within the expertise and authority of an arbitrator, not the

court.”

(quoting United Steelworkers v. Warrior & Gulf

Navigation Co.,

(1960)). The Circuit has

counseled that as a result of industrial common law, there are

“few disputes that arise during the term of a collective

bargaining agreement [that] cannot be resolved by reference to

the agreement.”

18 IV. ANALYSIS

The parties’ central dispute is whether American’s

unilateral revision of its Flight Manual in November 2007 to

require its pilots to review Airport Familiarization Modules

prior to assignment to certain special qualification airports

while in § 6 negotiations is a major dispute or a minor dispute

under the RLA.

As a threshold issue, the fact that a dispute arises while

parties are in negotiations pursuant to § 6 of the RLA does not

convert a minor dispute into a major dispute. As this Circuit

has explained: “The fact that the parties’ legal obligations

arise from § 6’s statutory continuation of ‘working conditions’

does not automatically mean that any dispute which arises

necessarily revolves around the acquisition of new rights, rather

than the definition of vested ones.” Eastern I, 863 F.2d at 899.

Accordingly, a carrier does not violate the status quo if it

makes changes to the terms and conditions of employment if those

changes are arguably permitted under the terms of a pre-existing

collective bargaining agreement, even though the parties are in

§ 6 negotiations for a new agreement. See id. (rejecting the

proposition that the filing of § 6 notices automatically makes

the dispute a major one); IBT/HERE Employee Representatives’

Council v. Gate Gourmet Div. Am.,

, 61 n.8

(D.D.C. 2005) (same). Consequently, the fact that the instant

19 dispute arose during § 6 negotiations need not effect this

Court’s analysis regarding whether the dispute is properly

classified as a major or minor dispute.

American asserts that the instant dispute is a minor

dispute, arguing that its November 2007 revision is consistent

with its “past practices of both unilaterally modifying its

Airport Familiarization Requirements for its pilots and not

providing separate pay for completing Airport Familiarization

Requirements.” Def.’s Br. at 1-2; see also Def.’s Br. at 12-17.

American argues that because its November 2007 revision is

“arguably justified” by these past practices, the action presents

a minor dispute over which the Court lacks jurisdiction. The APA

counters that the dispute is major. While the APA does not

dispute that American has a longstanding practice of unilaterally

establishing and modifying its Airport Familiarization

Requirements and of not specifically compensating pilots to

complete these requirements, see Pl.’s Resp. to Def.’s SMF ¶¶ 24,

27, 33, 38; Pl.’s SMF ¶ 42, the APA argues that the November 2007

revision constitutes a unilateral change in the terms and

conditions of employment for the pilots because it impermissibly

“transform[ed] a compensated event into an uncompensated

event[.]” See Pl.’s Br. at 18. The APA asserts that American’s

contention that it was arguably justified by the Green Book

and/or past practice in making the unilateral change is both

20 “obviously insubstantial” and “frivolous,” and asks this Court to

enjoin American’s alleged unilateral change to the “pilot’s wages

and working conditions.” Pl.’s Br. at 17, 21.

Because the linchpin of American’s argument is the

relationship between the 2006 Presidential Grievance and the

November 2007 Revision, the Court will begin its analysis there.

As discussed above, beginning in March 2006, American began a

series of revisions to its Flight Manual to require pilots to

review Airport Familiarization Modules prior to departure to

certain special qualification airports without specific

compensation. The APA admits that this unilateral action by

American “undoubtedly triggered a minor dispute, over which the

APA duly filed a grievance.” Pl.’s Br. at 17. Indeed, the APA’s

Presidential Grievance claims that American’s introduction of the

Airport Familiarization Modules without compensation for training

violated both the Green Book and the parties’ past practice. See

Def.’s Ex. 3, Presidential Grievance 06-021 (“Pursuant to the May

1, 2003, Agreement between [American] and the Airline pilots in

its service, as represented by the [APA], the undersigned, on

behalf of all pilots, hereby files this grievance protesting the

Company’s failure to properly compensate pilots for training per

§ 6.D, and all related sections of the Agreement, and past

practice.”). Having conceded that the 2006 Presidential

Grievance is a minor dispute, the APA nonetheless argues that

21 American’s subsequent revision to its Flight Manual to require

pilots to review Airport Familiarization Modules without

compensation prior to assignment - rather than prior to flight -

is a major dispute. See Pl.’s Reply Br. at 14 (“When American

changed the requirement to mandate review prior to ‘assignment’

to a flight . . . it implemented a requirement that had no basis

either in the Green Book in the parties’ past practice.”).

In determining whether American’s claim that the November

2007 Revision is “arguably justified” by past practice, the Sixth

Circuit’s decision in Airline Professionals Association of the

International Brotherhood of Teamsters v. ABX Air, Inc., is

instructive. No. 00-4109,

(6th Cir.

Dec. 13, 2001). In that case, the union alleged that the

airline’s unilateral revision of its policy on the use of Cockpit

Voice Recorder tapes (“CVR tapes”) in its Flight Operation Manual

was a major dispute.

. Specifically, the pilots had

previously been able to erase CVR tapes at the conclusion of a

flight, as long as no accident or safety incidents had occurred

that would require investigation by the National Transportation

Safety Board.

. A dispute arose after the airline

unilaterally modified this policy to prevent crewmembers from

erasing the tapes after the conclusion of a flight, regardless of

whether a reportable event occurred.

. The union

argued that the airline’s action was a significant departure from

22 the implied terms of its agreement because it seriously impinged

on the privacy rights of the crewmembers and exposed the

crewmembers to potential disciplinary action on the basis of

tapes preserved under the new policy, and therefore constituted a

unilateral change to the pilot’s working conditions.

.

The district court rejected this argument, concluding that the

change triggered a minor dispute, and the Sixth Circuit affirmed,

explaining:

Here, the past practices of the parties indicate that the [Flight Operations Manual] was within the exclusive province of [the airline], and that [the airline] had the right to make unilateral changes to the [Flight Operations Manual] regarding a variety of topics, including policies that affect the working conditions of the crewmembers. On only one occasion was this right ever challenged, and in that case the Union, apparently recognizing that the dispute involved the interpretation of the agreement, followed the grievance procedures for a minor dispute. Considering these past practices, [the airlines]’s decision to unilaterally revise the [Flight Operations Manual] was ‘arguably justified’ by the implied terms of the collective bargaining agreement, making the present dispute a minor one under Conrail.

. The instant dispute shares much in common with ABX

Air. The past practices of American and the APA indicate that

the Flight Manual and Airport Familiarization Requirements are in

the exclusive province of American; it is undisputed that

American has made numerous unilateral changes to its Airport

Familiarization Requirements; and the only other time that a

23 related change was challenged (i.e., the 2006 Presidential

Grievance), it was challenged as a minor dispute.

The APA attempts to distinguish ABX Air by arguing that the

carrier in ABX Air did not change a “compensated event into an

uncompensated event or do so at the same time the parties were in

the process of negotiating compensation for a new training regime

that included the requirement at issue.” Pl.’s Br. at 20. The

Court will briefly address these contentions in turn.

First, the APA’s argument that American transformed a

compensated event into an uncompensated event is somewhat

misleading, as it is undisputed that American has never

specifically compensated its pilots for completion of Airport

Familiarization Requirements. See Def.’s SMF ¶ 24 (“The Green

Book has never provided that pilots are to be compensated for

time spent fulfilling American’s Airport Familiarization

Requirements and American has never specifically paid pilots for

completing Airport Familiarization Requirements.”); Pl.’s Resp.

to Def.’s SMF ¶ 38 (admitting that “American has not

‘specifically’ compensated pilots for time spent completing

American’s Airport Familiarization Requirements”). Indeed, the

APA filed its 2006 Presidential Grievance alleging that American

had failed to properly compensate its pilots for training. See

24 Def.’s Ex. 3, Presidential Grievance 06-021.9 While American’s

November 2007 Revision removed a pilot’s ability to review an

Airport Familiarization Module during the preflight preparation

period immediately preceding the flight, this Court is

unpersuaded that it constituted a “unilateral change to the

pilot’s wages.” Pl.’s Reply Br. at 21.10

Second, the Court will note that the APA’s assertion that

the parties were in the process of negotiating compensation for a

new “distance training” regime that included Airport

Familiarization Requirements is adamantly contested by American.

9 See also Def.’s Ex. E, Dep. Ted Christensen at 39-40 (“Q: And it was your understanding in February 2006 that when the company implemented Flightscape at the [special requirement] airports, that there was no provision for pay for the period of time that the pilots would review the Flightscape airport familiarization software? A: I asked . . . and they had no answer for that . . . [T]hey just basically said, no. . . . Captain Don Dillman made the statement, ‘If you’re a professional, you’ll review this or do this as part of your general duties. And I said, ‘That is absolutely not going to happen. If you want guys to do this, you need to negotiate something to get it done.’”). 10 Based on the evidence before this Court, it appears that there are other “compensated times” that a pilot could review the Airport Familiarization Modules - such as during breaks at the Flight Academy, or during time spent between multiday flight sequences or overnight at a hotel between flights. See, e.g., Def.’s Ex. G, Mark Stevens Dep. at 13-14 (explaining that he reviewed an Airport Familiarization Module while in training, and stating that “it may have been at the academy”); see generally Pl.’s SMF ¶ 20(discussing pilots’ compensation under the Green Book). But cf. Second Decl. of Thomas Westbrook (explaining that as a result of the November 2007 Revision pilots would have to spend “hours of uncompensated review time” completing the Airport Familiarization Modules in order to ensure they were qualified to take a last minute assignment into a special qualification airport).

25 See Def.’s Reply Br. at 6-8 (discussing how “[t]he APA falsely

alleges that the Airport Familiarization Modules were part of

American’s bargaining proposal on the issue of ‘distance

learning’”). Even assuming, however, that the parties were

discussing revisions to the Green Book that would have

encompassed Airport Familiarization Modules, for the reasons

discussed above, American did not violate the status quo by

implementing a revision that it was arguably permitted to make

under the terms of the current Green Book and past practice, even

though the parties were in § 6 negotiations for a new agreement.

See Pl.’s Br. at 13 n.1 (acknowledging that “a carrier can make

changes under the terms of [an] existing agreement even though

parties are in Section 6 negotiations for a new agreement[,]” so

long as such changes are “permitted under the existing agreement

or based on the established past practices of the parties in

order to comply with the status quo obligation”).

In support of its argument that the November 2007 Revision

is a major dispute, plaintiff relies heavily on International

Brotherhood of Teamsters v. Chautauqua Airlines,

(S.D. Ind. 2001). In Chautauqua Airlines, the defendant

airline engaged in a number of “cost-saving measures,” including

the unilateral reduction of its full-time workweek from 40 to 32

hours. See

(explaining that after the airline was

unable to get the union to agree to a reduction in the 40-hour

26 workweek, it unilaterally reduced the full-time workweek). The

Union argued that this was a major dispute because there was an

established 40-hour workweek and there was no past practice or

contractual term permitting the airline to unilaterally reduce

the workweek for full-time employees.

. The

employer countered that it was a minor dispute, arguing that

because the collective bargaining agreement permitted the

employer to unilaterally set employees’ work schedules, it

similarly permitted it to determine the number of hours employees

could work each week.

. The Court concluded that the

airline’s contractual defense “must be termed insubstantial”

because nothing in the parties’ collective bargaining agreement

permitted the company to unilaterally reduce the workweek of

full-time employees.

.

Having considered Chautauqua Airlines and the other cases

cited by the APA regarding major disputes,11 the Court is

unpersuaded that American’s claims of contractual justification

are “frivolous” or “obviously insubstantial.” See Eastern II,

(“‘Where the parties disagree over whether the

dispute can be resolved by reference to an agreement the dispute

11 See, e.g., Bhd. of Locomotive Eng’rs,

(major dispute where, after failing to obtain an agreement with the union regarding mill switching, the employer began using non-union labor to perform the switching; concluding “there [was] not even arguably any past practice” allowing the employer to have non-union labor perform work previously performed by union labor).

27 is minor unless the claims of contractual justification are

‘frivolous’ or ‘obviously insubstantial.’” (quoting Nat’l Ry.

Labor Conference v. Int’l Assoc. of Machinists & Aerospace

Workers,

(7th Cir. 1987))). In light of the

undisputed evidence regarding American’s past practice of

unilaterally modifying its Airport Familiarization Requirements,

the plaintiff’s agreement that the 2006 Presidential Grievance

presented a minor dispute, and given the strong presumption in

favor of minor disputes, Eastern II,

, the Court

concludes that the pending dispute is a minor dispute over which

this Court lacks jurisdiction.12

While the Court is sympathetic to the APA’s position that

the parties’ past practice does not permit American to require

pilots to perform an uncompensated review of its Airport

Familiarization Modules prior to being assigned to a flight to a

special qualification airport, see, e.g., Pl.’s Reply Br. at 14

(discussing how the November 2007 revision deviated from past

practice), this does not change the Court’s conclusion that

American’s November 2007 Revision was “arguably justified” by the

past practice of the parties. In other words, while the APA’s

arguments distinguishing the November 2007 Revision from other

12 Because the Court concludes that it lacks jurisdiction to issue a status quo injunction, the Court need not consider American’s alternative argument that the APA’s claim is barred by the doctrine of unclean hands.

28 past practices regarding Airport Familiarization Requirements may

very well “carry the day in arbitration,” this argument does not

convince the Court that American’s contractual argument is

“frivolous” or “obviously insubstantial.” See Conrail,

(concluding that the employer met its “relatively

light burden” of convincing the Court that is practice was

arguably justified by the implied terms of the collective

bargaining agreement, but emphasizing that in rendering such a

decision it did not “seek to minimize any force in the Union’s

arguments that the discretion afforded [the employer] by the

parties’ implied agreement, as interpreted in light of past

practice, cannot be understood to extend this far”); ABX Air,

Inc.,

, at *11-12 (explaining that the

union’s arguments distinguishing the airline’s new policy from

previous unilateral decisions could persuade the arbitrator, but

emphasizing that “it is not for [the] court to determine whether

the implied terms of the agreement would actually permit [the

airline] to impose the new policy”). Accordingly, the Court

GRANTS defendant’s motion for summary judgment, and DENIES

plaintiff’s motion for a preliminary or permanent injunction for

lack of jurisdiction.

V. CONCLUSION

For the foregoing reasons, defendant’s motion for summary

judgment is GRANTED, and plaintiff’s motion for preliminary

29 and/or permanent injunction is DENIED. An appropriate Order

accompanies this Memorandum Opinion.

Signed: EMMET G. SULLIVAN UNITES STATES DISTRICT JUDGE September 29, 2009

30