UNITED STATES COURT OF APPEALS
NORTHWEST AIRLINES, INC.,
TEAMSTERS LOCAL 2000, et al.,
KEVIN GRIFFIN AND TED REEVE,
In re KEVIN GRIFFIN AND TED REEVE,
On January 5, 2000, the district court temporarily enjoined appellants Kevin Griffin and Ted Reeve, along with several officials of Teamsters Local 2000 and the union itself, from participating in, permitting, or "approving of" an alleged "sickout" among Northwest Airlines flight attendants. Appellants are members, but not officers, of Local 2000, and they are employees of plaintiff-appellee Northwest Airlines.
Despite the notice requirements of Rule 65(b), the restraining order ("TRO") was granted with no notice to appellants, and with no explanation for the failure to give such notice (although plaintiff has appellants' addresses, telephone numbers, and e-mail addresses). Appellants were not represented at the hearing, and despite the Norris-LaGuardia Act, the injunction was entered without live testimony, and without any evidence showing that the appellants had personally supported the sickout. On January 7, the court held a hearing, still without notice to appellants, at which it extended the TRO to February 19 and set a preliminary injunction hearing to begin February 15. Appellants then retained counsel and moved the court to dissolve the TRO against them, pending the preliminary injunction hearing. Again despite Rule 65(b), the district court failed to hold a prompt hearing, but instead decided that the motion would not be considered until February 15, more than forty days after the TRO was entered.
Although denominated a TRO, the order has ripened into a preliminary injunction. The orders were entered, and the district court refused to consider lifting them, in flagrant violation of appellants' due process rights and Rule 65. In addition, the orders constitute a prior restraint of appellants' constitutionally protected expression and they were entered in disregard of the Norris-LaGuardia Act. Accordingly, appellants ask the Court to reverse the district court's orders summarily.
This case arose in the context of negotiations for a new collective bargaining agreement between plaintiff-appellee Northwest Airlines and defendant Teamsters Local 2000, which represents Northwest's 11,000 flight attendants. After three years of negotiations, in April, 1999, the union leadership and the company reached a tentative agreement ("TA"). The Constitution of the International Brotherhood of Teamsters ("IBT"), requires all proposed collective bargaining agreements to be ratified by the affected members, and it has been quite common, over the years, for ratification referenda in many IBT bargaining units to be hotly debated. See, e.g., Bauman v. Presser, 117 LRRM 2393 (D.D. C. 1984). Both the Landrum-Griffin Act and the Railway Labor Act ("RLA"), not to speak of the First Amendment, guarantee the right of union members to debate the merits of proposed contracts, and to discuss what actions the union should take with regard to bargaining. E.g., Brown v. IBEW Local 53, 936 F.2d 251 (6th Cir. 1991); Held v. American Airlines, 13 F. Supp.2d 20 (D.D.C. 1998)
There was a fervent campaign in favor of and against ratification, and a primary forum for communications by both proponents and opponents was the Internet.(1) In August, 1999, the membership rejected the TA by a vote of more than 2 to 1. For months following the referendum, the debate continued within the union about what position the union should take in collective bargaining, and how a better contract could be obtained. This debate heated up after the company and union met for the first time in early December, and the mediation broke off with angry accusations from the company; the union, in turn, held rallies at airports throughout the country to publicize its side of the dispute.
2. The Activity of Defendants Griffin and Reeve
Defendants Reeve and Griffin are high seniority flight attendants employed by plaintiff and rank-and-file members of Teamsters Local 2000. Neither holds any union position, either elected or appointed. Griffin aff. ¶ 1; Reeve aff. ¶ 1. Each independently responded to the unfolding drama of contract negotiations by creating web sites for the benefit of their fellow members. Griffin created the Northwest Airlines Flight Attendant Contract Negotiations Forum shortly after the union announced that a tentative agreement ("TA") had been reached and would be submitted to the membership for ratification, but without disseminating the full text of the TA. Griffin aff. ¶ 6. Reeve created his web site, called The Independent Local 2000 News, in September, 1999, after the TA was rejected on August 26th, "to provide a reliable source of news and information to my fellow flight attendants" and "to combat the divisive effects of 'gossip and rumor.'" Reeve aff. ¶¶ 4, 5.
Each of the web sites gives Local 2000 members an easily accessible source of information bearing on the ongoing contract negotiations. Reeve's site contains a history of Local 2000; its bylaws; a list of its officers and base representatives, with their e-mail addresses and telephone numbers; notices of membership meetings for the discussion of contract negotiations news and strategies; communications to all flight attendants by leading company officers regarding negotiations, and reports from a member of the union's Negotiations Committee; union "hotline" messages; an open letter to the company protesting its bargaining position, signed by hundreds of members; media reports on the contract negotiations; and a lengthy summary of the 1996 contract openers by both company and union. Reeve aff. ¶ 7. Griffin's web site presents comparative pay charts; the full text of the TA; contract "LowLights" ( referring to particularly unpopular provisions of the TA); a "TA Mark-up Forum" for comments by flight attendants on specific contract language in the TA; Local 2000's most recent LM-2 report; the Local 2000 bylaws; and the Alleghany-Mohawk Labor Protective Provisions ("LPPs"). Griffin aff. ¶ 7.
Unlike Reeve's site, Griffin's site hosts an open forum for Local 2000 members. Griffin aff. ¶ 7. Griffin opened the forum "to provide a place for Northwest flight attendants to communicate freely with each other about matters of concern to them as Local 2000 members and flight attendants employed by Northwest Airlines, without the sort of political censorship that I and many other Local 2000 members felt we encountered in attempting to gain access to Local 2000's official web site." Griffin aff. ¶ 8. Presumably fearing retaliation, the overwhelming majority of users do not identify themselves by name. Griffin aff. ¶ 8. A few users posted messages urging flight attendants to engage in a sickout; others engaged in name-calling. At one point, Griffin announced on his web site that the site had become a "monster," with imposters causing problems that warranted "killing" the forum. He promised to reopen it at a different location, accessible by password only. Griffin aff. ¶ 12. He did close the forum and reopen it later at a different location, but technical problems prevented him from limiting access to those with passwords. Id. ¶ 12.
On December 8, he posted a message that begged fellow forum participants to
"please refrain from calling for certain actions that may be illegal. I know we all want results and we all wanted them yesterday if not three plus years ago but there are certain guidelines we have to follow even if NWA does not always do so. We must continue to keep the pressure on the leadership of the Local and the Company too.
So stay determined and keep the focus on the contract and job issues....
Griffin aff. ¶ 12; exh. F.
Postings under assumed names and anonymous postings that called for a sickout reappeared on Griffin's web site during December 1999. There was no way for Griffin, as webmaster, to censor such postings beforehand. Griffin aff. ¶ 8. However, on December 23, 1999, Griffin posted another plea to fellow members to stay focused:
"This forum was not created to bash Northwest Airlines or fellow crew members. This forum was created by myself and Randy to discuss contract issues. Please stick to the topic of contract issues...."
Griffin aff. ¶ 10, exh. E (emphasis added).
During the period of the alleged sickout, neither appellant used any sick leave. Griffin aff. ¶ 3 and exh. A; Reeve aff. ¶ 3. Indeed, Reeve has never used sick leave at any time in his 10-year career as a Northwest flight attendant. Reeve aff. ¶ 2. Both have testified that they never at any time knowingly or intentionally advocated or encouraged a sickout, strike, or work slowdown or stoppage, Griffin aff. ¶¶ 13, 14; Reeve aff. ¶ 10, and there is no evidence that they did.
B. Proceedings Below.
On January 4, 2000, appellee filed a verified complaint and motion for a TRO against Local 2000, the IBT, and nineteen individuals. All of the individual defendants, except appellants Griffin and Reeve, were either officers of Local 2000 or held other official union positions. The complaint alleged, in general terms, that "defendants" had incited members of the union to engage in a sickout, that beginning on December 21 there had been a sharp increase in the number of flight attendants calling in sick, out of proportion to statistics from prior years, and that as a result Northwest had been forced to cancel many flights.(2) Accompanying the complaint was an affidavit from a senior Northwest management official, Stephen Simmons, making more specific allegations against many of the defendants, and attaching 37 exhibits that allegedly showed that all of the defendants were guilty of fomenting the alleged sickout. The only specific statements about Reeve and Griffin were that they had web sites; that calls for illegal job actions had been posted on Griffin's web site by other persons (allegedly including union officials); and that Griffin had allegedly posted a comment on the web site that implicitly called for a sickout.
Neither service, nor any kind of informal notice, was provided to either Griffin or Reeve before the court held a hearing on the motion for a TRO early in the morning on January 5; nor did the company file any written explanation for its decision not to notify them. As a result, only the IBT, Local 2000, and Local 2000's president were represented by counsel at the hearing. The hearing was conducted with no live testimony; the only evidence opposing the injunction was an affidavit from Local 2000's president, who was represented at the hearing.
Later that day, the court concluded that Northwest was likely to succeed in proving that each defendant (except the IBT, which had been served and was represented separately at the hearing) had violated the RLA by instigating a sickout. The court identified by name four individual union officers who likely shared responsibility for the sickout; but there were no findings with respect to either of the appellants. Nevertheless, the court below ordered all defendants except the IBT to stop the sickout, to refrain from "approving," "permitting," "encouraging," or otherwise furthering the sickout, to do their best to prevent further recurrences of the sickout, and to notify all Local 2000 members of the order and its meaning. The court's order does not bear its time of entry, as required by Rule 65(b), and does not require a bond. Despite the procedural and substantive defects in the order as applied to Griffin and Reeve, they promptly posted notices on their web sites describing the TRO and committing themselves to honor it, even while trying to set it aside, and imploring their readers to refrain from unlawful work actions before release from mediation. Griffin aff. ¶ 17; Reeve aff. ¶ 9. There is no evidence that the alleged sickout, if it did occur, or any advocacy of a sickout, continued after the TRO was issued.
On January 7, during a telephone conference before the Magistrate Judge over a discovery dispute, the represented parties verbally stipulated to extend the TRO to February 19, 2000. Based solely on that stipulation, the Magistrate Judge entered an order extending the TRO against all defendants until February 19, and setting a hearing on the requested preliminary injunction on February 15. Appellants Griffin and Reeve were not represented at this proceeding, and neither they nor their counsel had notice that it would be held. They were also not consulted on the question of whether the TRO should be extended. Thus, they never had the opportunity to argue that there was no basis to extend the TRO against them, and that it should never have been entered against them in the first place.
Upon receiving requests from Griffin and Reeve for representation, undersigned counsel repeatedly asked the company's counsel to supply them with any evidence that supported the claim that Griffin and Reeve had incited the sickout. See Letters from Paul Alan Levy to Timothy Thornton and to John Gallagher, attached. to Motion to Dissolve TRO. This request led Northwest to admit that Simmons Exhibit 30, the sole basis for its claim that Griffin had advocated the sickout, was not in fact a document written by Griffin. See Letter from Neal Mollen to Paul Alan Levy. (3)
On January 19, the day before the January 5 TRO would have expired against them, defendants Griffin and Reeve moved the district court to dissolve the TRO. They argued that there was no justification for the company's failure to comply with the notice requirements of Rule 65, especially because it could easily have contacted them through the means used in the usual course of their employment. They filed affidavits showing that they had no involvement either in the alleged sickout or inciting it, but, on the contrary, that they had urged members not to engage in any illegal action even though, in their view, Northwest had done so. And they showed the court that it had been misled by the Simmons affidavit, which quoted out of context from a statement by Griffin without attaching a copy of the actual statement. Their motion specifically cited Rule 65(b)'s requirement that a motion to dissolve a TRO be heard on two days notice.
On January 24, Northwest filed an opposition to lifting the TRO. It argued that the "technical deficiencies" with respect to the notice required by Rule 65(b) had been cured in that Griffin and Reeve were now represented by counsel, and the Court could decide whether they should be included in the TRO by holding a de novo hearing, as Rule 65(b) required. The thrust of its substantive argument was that, even if Griffin and Reeve had not incited or encouraged the alleged sickout, they had endorsed other forms of concerted action, and could properly be enjoined from doing that. Thus, it explained, the phantom exhibit was actually a proper basis for a TRO against Griffin. Northwest also introduced two new documents which, it said, showed that Griffin tried to stop others from opposing the calls for a sickout. Appellants submitted a reply brief that pointed out that Northwest had once again misrepresented the contents of the new documents, presumably because it knew it had no genuine basis for the TRO against appellants.
The district court has not held a hearing on the motion to dissolve the TRO. On January 28, the court's chambers informed appellants' counsel that the court would not hear their motion until February 15, when it would be considered along with the motion for a preliminary injunction. Thereupon, Griffin and Reeve filed their notice of appeal or, in the alternative, their petition for mandamus.
I. THE COURT HAS JURISDICTION TO CONSIDER THIS MOTION.
The Court has jurisdiction to award the relief that appellants seek either through consideration of their appeal from an interlocutory order under 28 U.S.C. § 1292(a)(1), or by treating their motion for summary reversal as a petition for a writ of mandamus.
The preferable course would be for the Court to consider this case as an appeal from the grant of a preliminary injunction or the refusal to dissolve a preliminary injunction. This Court has held that even if an order is denominated a TRO, once it is extended beyond the time allowed under Rule 65(b), it is properly treated as an appealable preliminary injunction. Telex Corporation v. IBM Corp., 464 F.2d 1025 (8th Cir. 1972). Accord, Sampson v. Murray, 415 U.S. 61, 86-88 (1974); National Mediation Bd. v. ALPA, 323 F.2d 305, 305-306 (D.C. Cir. 1963); Pan American World Airways v. Flight Engineers, 306 F.2d 840, 842-843 (2d. Cir. 1962). The TRO in this case was entered on January 5, and was extended to February 19 by the stipulation of lawyers who, at the time, represented only three of the defendants, and neither of the appellants. Rule 65(b) permits a TRO that was entered without notice to last for only ten days, subject to a renewal, only once, for another ten days. The Norris-LaGuardia Act is even more strict, allowing a TRO that is entered without notice to last for only five days; if this requirement were honored, the renewal allowed by Rule 65 could extend only fifteen days after the date of the initial order. The very latest date that the January 5 order could extend, if each "ten day" period were calculated excluding weekends and holidays, would be February 2, 2000. Yet the district court has advised counsel that it will not even take up the question of the continuation of the TRO as to Griffin and Reeve until February 15 at the earliest. In these circumstances, the Court should treat the outstanding orders as an appealable preliminary injunction, albeit one entered without notice or findings in violation of Rule 65.
If the Court concludes that it cannot treat the appeal as one from a preliminary injunction, then it should treat the motion as a petition for a writ of mandamus. This Court allows mandamus where "petitioner is able to establish a clear and indisputable right to the relief sought, the [respondent] has a nondiscretionary duty to honor that right, and the petitioner has no other adequate alternative administrative or judicial remedy." In re SDDS, 97 F.3d 1030, 1034 (8th Cir. 1996). Here, the district court granted a TRO against the appellants not only without any notice to them, as required in most circumstances by Rule 65 of the Federal Rules of Civil Procedure, but without any affidavits or other written explanation of why it was necessary to hold a hearing on the TRO without giving notice, which Rule 65(b) requires without exception. As discussed in Part II, infra, this requirement is rooted in constitutional due process, and so the violation is not only of Rule 65 but of the Fifth Amendment. The district court granted the TRO without hearing any "testimony of witnesses in open court (with opportunity for cross-examination)," as required by section 7 of the Norris LaGuardia Act, 29 U.S.C. § 107, and without requiring the company to post any bond, also expressly required by section 7 of Norris-LaGuardia.
Moreover, Rule 65(b) entitled appellants to move to dissolve the TRO on two days notice to Northwest. In those circumstances, the district court was required to give the issue of whether Griffin and Reeve could properly be enjoined precedence over all other judicial business. Northwest had to present evidence showing its entitlement to a preliminary injunction, and the court was supposed to decide the motion immediately. Even appellee recognized the district court's obligation to hold an immediate, de novo hearing, which, it argued, would cure its failure to give notice. The district court's failure to observe this procedure was another patent violation of appellants' rights, entitling them to immediate relief from this Court.
Moreover, the Norris LaGuardia Act forbids a TRO from being entered without notice for more than five days, a period that is even shorter than the ten days allowed by Rule 65. The district court's extension of the TRO until February 15, and its failure to act on the motion to dissolve the TRO, constitute further breaches of clear duty that may be remedied by mandamus.
The breach of duty is particularly clear because the injunction constitutes a prior restraint of appellants' speech. The Supreme Court has held that the First Amendment bars injunctions against speech without notice, especially where there is no showing that it was impossible to notify the defendants before asking for the injunction. Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 180 (1968).
The final basis for deciding this motion by mandamus is the line of cases from this Court holding that "mandamus review may be appropriate to provide guidelines for the resolution of novel and important questions . . . that are likely to recur." In re Societe Nationale Industrielle Aerospatiale, 782 F.2d 120, 123 (8th Cir. 1986), modified on other grounds, 482 U.S. 522 (1987) (Supreme Court actually ordered that protective order be granted in part, thus implying that review by mandamus was proper). Although most commonly presented in the context of discovery disputes, this line of authority extends to other clear abuses of judicial discretion or violations of the procedural requirements for the exercise of judicial power. E.g., LaBuy v. Howes Leather Co., 352 U.S. 249, 256-258 (1957).
That exception surely applies here. In the court below, appellee argued that sickouts and other forms of "wildcat" action are an increasing problem in the railway and airline industry, and that extraordinary measures are needed to combat them. Appellee further argued that the First Amendment doctrine of prior restraint has no application to labor cases. Therefore, this is not likely to be the only case in which a district court is likely to be presented with a request for an injunction without any pretense of notice to the defendants, especially if Northwest succeeds in setting the example for other employers. The temptation to disrupt the union and its members during a key stage of bargaining by obtaining an ex parte injunction will simply be too strong. Moreover, because TRO's normally expire within ten days of entry (or twenty days if renewed), and within five days if the requirements of the Norris-LaGuardia Act are honored, the question of the circumstances under which a TRO may be issued will normally evade appellate review.
In short, this is a case where a large corporation, obviously having resources sufficient to comply with all of the procedural and substantive requirements of Rule 65 and the Norris-LaGuardia Act had it chosen to do so, played fast and loose with those requirements. It was able to succeed because the district court apparently believed that every one of the requirements was expendable because Northwest's ex parte evidence (which defendants never had a chance to rebut) suggested that some people were doing illegal things. And when these procedural shortcomings were expressly raised, the district court postponed considering them until the preliminary injunction hearing, perhaps assuming that by then they would no longer be relevant. But if the procedural protections are to mean anything, they must apply regardless of whether the company comes in with a compelling-sounding case.
II. THE ISSUANCE AND CONTINUATION OF THE INJUNCTION AGAINST REEVE AND GRIFFIN VIOLATES RULE 65 AND THE DUE PROCESS CLAUSE.
Griffin and Reeve have both procedural and substantive objections to the injunctions that were entered against them. The procedural objections alone are sufficient to warrant summary reversal, and those procedural issues can be decided without any consideration of the facts at issue with respect to the sickout and the basis for the injunction. We do set forth the facts in some detail in the final section of this brief, both in support of our argument that the injunction against appellants was unsupported by the evidence, and because the lack of evidence shows why it is important for district courts to honor the procedures required by Rule 65 and the Norris-LaGuardia Act. We emphasize, however, that the Court need not weigh that evidence, or formulate any opinions about how the district court should rule once it focuses on that evidence, in order to rule in appellants' favor on this appeal.
A. The Original Entry of the TRO Against Appellants Was Improper.
The first reason why the orders below should be reversed summarily is that their application to appellants violates Rule 65 of the Federal Rules of Civil Procedure.
This case was filed on an emergency basis, based on a factual scenario which, the district court was persuaded, warranted emergency relief. But even in emergency situations, the Federal Rules and the Bill of Rights give individual defendants protections which were disregarded in this case, creating identifiable prejudice to appellants' rights.
Northwest filed its complaint and motion for a preliminary injunction on January 4, 2000. No effort was made to serve appellants Reeve and Griffin before the hearing was held, or even to notify them that a complaint had been filed against them and that a TRO hearing was going to be held. As their affidavits below reflect, both appellants received the papers after the hearing and after the court had issued the January 5 TRO. Griffin aff. ¶ 5; Reeve aff. ¶ 4.
Rule 65(b) specifically limits the power of courts to issue a TRO without prior notice to the opposing party. The rule has both a substantive and a procedural limitation. A TRO may be granted without notice only if it "clearly appears from specific facts shown by affidavit or by verified complaint that immediate and irreparable injury . . . will result . . . before the adverse party or that party's attorney can be heard in opposition." Rule 65(b)(1). It is important to note that irreparable injury is not alone enough the requirement is for irreparable injury before the opposing party can be given a chance to defend himself. Heyman v. Kline, 456 F.2d 123, 127 (2d Cir. 1972). See also Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 180 (1968). Moreover, before the court was empowered to issue a TRO in those circumstances, the rule required a written justification for the non-service "the applicant's attorney [must] certif[y] to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required." Rule 65(b)(2).
These requirements were added to Rule 65 in 1966 in response to the due process requirements of the Fifth Amendment, which forbid the taking of liberty or property without notice and an opportunity to be heard. 1966 Advisory Committee Notes to Rule 65(b); Wright, Miller & Kane, Federal Prac. & Proc.: Civil 2d § 2951, at 262-264 (1995). "The evidentiary quality of the affidavit must be sufficient to convince a court that there is immediate and great danger of irreparable injury that necessitates dispensing of some of the trappings of due process." Id. § 2952, at 276. The normal reason for allowing a TRO without any notice is where the defendant, once put on notice of the impending action, is likely to take an action, such as destroying crucial evidence, or disposing of contested property by putting it beyond the reach of the courts, or giving out privileged information, that would make an injunction useless if the court waited until the defendant had notice. E.g., First Technology Safety Sys. v. Depinet, 11 F.3d 641, 650-652 (6th Cir. 1993).
There is no reason why Northwest could not have provided notice to the appellants of its pending action against them. Both appellants work for Northwest, which has their home addresses and telephone numbers because, in the course of their employment, they receive various written and oral notices from the plaintiff. Plaintiff also maintains records showing the work schedules of each of the defendants. Reeve reported to work for a trip on January 2, when he could have been served at the workplace, and reported back from that same trip on January 4, when he could have been served at the workplace again. Reeve aff. ¶ 3.
Although there are obvious difficulties in shipping documents to defendants in various parts of the country, the papers are too voluminous to have been prepared in just a few hours' time for filing on January 4. Plaintiff must have known earlier in January that it was going to seek emergency relief, and it could have notified defendants of its plans at that time. Indeed, it could have called the defendants after filing the complaint and motion papers and offered to send the key papers electronically. Certainly, the company knew the web site addresses of both defendants Griffin and Reeve, inasmuch as the thrust of its complaint against these defendants involved the communications on their web sites; these sites, in turn, reveal the appellants' e-mail addresses. See http://www.cleardaze.com/ClearDaze2000/contact_us.htm; http://home.pacbell.net/treeve/. Instead, defendants learned of the lawsuit against them only from the press, and they did not get the papers until after the court entered its order against them. In these circumstances, the failure to contact the defendants directly must have been a deliberate litigation strategy to put them at a disadvantage. Indeed, in opposing appellants' motion to dissolve the TRO, Northwest made no attempt to excuse its failure to give notice; instead, it simply dismissed this as one of several "technical deficiencies" that would be cured when the court below held a de novo hearing on the motion.
Moreover, Griffin and Reeve were prejudiced by the failure to give them the proper notice, because they were unable to show that the verified complaint and attached evidence were devoid of any evidence showing any likelihood of success on the claims against them. The complaint made broad allegations about the "Defendants" as a group, with no allegations specific to Griffin and Reeve. The attached affidavit of Stephen Simmons made specific allegations about what several, but not all, individual defendants allegedly did in furtherance of the sickout. Simmons made no specific allegations against Reeve; indeed, to date, the only specific allegation is that he operated a web site where flight attendants could find information about the ongoing contract negotiations an activity plainly protected by the First Amendment. With respect to defendant Griffin, the affidavit states that he maintains a web site that hosts a forum that is used by the leadership of Local 2000 to communicate with Local 2000 flight attendants about unlawful job actions, ¶ 7(c), and that Griffin himself posted a message that implicitly called for a sickout over the holiday period. ¶ 16. Paragraph 16 averred, erroneously, that the entire message was attached as Exhibit 30, and purported to provide a summary of the message. Had Griffin been individually represented at the TRO hearing, he could have called the Court's attention to the fact that the document attached to the affidavit as Exhibit 30 was written, not by himself, but by another flight attendant, a fact that Northwest has since acknowledged. As discussed below at pages 27 to 28, the actual document written by Griffin urges flight attendants to contact the media and engage in other lawful forms of advocacy. Griffin aff. exh. B. This is just the sort of manipulation that is facilitated when a plaintiff is allowed to sidestep the procedural requirements for ex parte TRO's.
The one party that was represented separately at the January 5 TRO hearing, the IBT, was able to persuade the lower court that it was not involved in the unlawful sickout, and accordingly the court did not include it in the TRO that it entered against the remaining defendants. It seems likely that, had Reeve and Griffin been able to be represented, they too could have persuaded the court that there was no likelihood of success against them individually. As it was, the company's unsupported accusations and insinuations went unrebutted.
B. The Extension of the TRO Against Appellants Was Improper.
In addition to providing strict procedures before a TRO may be granted without notice, Rule 65(b) also allows a TRO to be effective for only ten days, and to be extended only once for another ten days. This additional due process protection is intended to impose severe limits on the restriction on individual liberty or deprivation of property that may be effected without the opportunity to be heard. The Norris-LaGuardia Act stiffens this requirement it allows an injunction without notice for no more than five days, and mentions no extensions. Even if Rule 65's authorization of a single, ten-day extension applies under Norris-LaGuardia, it has now been more than fifteen business days since Griffin and Reeve were first enjoined.
Rule 65(b) allows an extension of a TRO without consent of the party against whom the order is directed only "for good cause shown"; the rule further requires that '[t]he reasons for the extension shall be entered of record." In this case, however, the order extending the injunction states only that the three represented defendants had consented to the extension; there was no reason given for extending the order against the remaining defendants. This, too, was a violation of Rule 65 as well as of appellants' due process rights.
When a TRO is extended beyond the period allowed by Rule 65(b), it is to be treated as a preliminary injunction. Levine v. Comcoa Ltd., 70 F.3d 1191, 1193-1194 (11th Cir. 1995) (order must be obeyed, but target of injunction may appeal immediately); Telex Corp. v. IBM Corp., 464 F.2d 1025 (8th Cir. 1972). Treating the January 5 and 7 orders as preliminary injunctions, they fail for several reasons. In addition to being entered without notice to appellants, in violation of Rule 65(a)(1), they were issued without live testimony and without the opportunity for cross-examination, as required by section 7 of the Norris-LaGuardia Act; see also Carter-Wallace v. Davis-Edwards Pharm. Corp., 443 F.2d 867, 872 n.5 (2d Cir. 1971) ("we have stated in no uncertain terms that where there are disputed issues of fact . . ., a temporary injunction should not issue on the basis of affidavits save in instances of extreme urgency"). And they were issued without findings of fact and conclusions of law, despite the express requirement of Rule 52(a). See Granny Goose Foods v. Teamsters Local 70, 415 U.S. 423, 443-444 and n.17 (1974) ("Where a temporary restraining order has been continued beyond the time limits permitted under Rule 65(b), and where the required findings of fact and conclusions of law have not been set forth, the order is invalid."); National Mediation Bd. v. ALPA, 323 F.2d 305, 305-306 (D.C. Cir. 1963).
* * *
In sum, whether the order is treated as a TRO or a preliminary injunction, a grave injustice has been done to these two individuals. They have been found likely violators of the Railway Labor Act, and subjected to a serious prior restraint that not only forbids them from participating in any sickout, but controls what they may say about the sickout, through a proceeding that was held in violation of their constitutional due process rights, as well as Rule 65(b). Plaintiff has refused repeated requests for any evidence it may have of their personal involvement in the illegal sickout, and has supplied only a single document, the Exhibit 30 that was not attached to the papers originally served with the TRO motion. Had the lower court been able to examine the real document, would have been seen to have been completely misrepresented by the Simmons affidavit which served as the sole basis for the TRO. Adding insult to injury, no injunction bond was posted, in violation of the virtually mandatory character of the bond requirement of the Norris-LaGuardia Act and Rule 65(c). The orders below should be summarily reversed for those reasons alone.
II. CONTINUATION OF THE TRO AGAINST DEFENDANTS REEVE AND GRIFFIN IS NOT JUSTIFIED BY THE RAILWAY LABOR ACT, AND WOULD VIOLATE THEIR RIGHTS UNDER THE FIRST AMENDMENT, THE NORRIS-LaGUARDIA ACT, AND THE COMMUNICATIONS DECENCY ACT.
A. The Injunction Is a Forbidden Prior Restraint.
The first reason why the injunction is subject to summary reversal is that, absent a final determination that Griffin and Reeve did, in fact, violate the RLA through their statements, the TRO is a classic prior restraint that is forbidden in all but the most extreme circumstances by the First Amendment.
The Supreme Court has repeatedly held that injunctions which bar defendants from speaking, printing, or broadcasting statements about topics of public concern are prior restraints that require the most extraordinary justifications before they may be approved. New York Times v. United States, 403 U.S. 713(1971); Near v. Minnesota, 283 U.S. 697 (1931). When an injunction is entered based on a mere finding of likelihood of success in establishing illegal speech, instead of a final adjudication, it is a prior restraint subject to strict First Amendment scrutiny. Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993); Dataphase Systems v. CL Systems, 1980 U.S. App. LEXIS 14978, 6 Media L. Rep. 2163 (8th Cir. 1980). See also Carroll v. Commissioners of Princess Anne, 393 U.S. 175 (1968). The standard is particularly stringent when the injunction is entered without notice and any opportunity to be heard. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226-227 (6th Cir. 1996).
In the court below, Northwest argued that this case does not involve a prior restraint because "when expressive conduct violates labor laws, it may be enjoined" without regard to the First Amendment." P. Opp. 14 (emphasis added). The key word here is "conduct," because each of the cases it cited involved picketing, which the Supreme Court has consistently treated as a form of expression that is so substantially mixed with concerted conduct as to remove it from the First Amendment analysis applicable to pure speech activities. See Teamsters Local 695 v. Vogt, 354 U.S. 284, 289-295 (1957) (opinion for the Court by Justice Frankfurter). Griffin and Reeve were rank and file members engaged in pure speech activities. Neither Reeve nor Griffin was engaged in picketing.(4)
The district court appears to have applied a lesser standard because the TRO only forbids the defendants from engaging in an unlawful strike. See TRO order, at 9. However, the injunction is much broader than that. In addition to prohibiting each person enjoined from "calling," "participating in," "permitting," or "continuing" the sickout, the TRO extends to purely speech-related activities such as "approving of" or "encouraging" a sickout. It is understandable that a union that has called an unlawful strike could be ordered to counteract the effects of illegal activity that actually materialized, but not that individuals who were in no way responsible for the alleged sickout, having advocated only against it, should be forbidden to express any opinion about it. It is an elementary First Amendment principle that citizens are entitled to express their sympathy for illegal activities, so long as they are not guilty of inciting them. Bond v. Floyd, 385 U.S. 116, 132-134 (1966).
So long as the TRO is effective, defendants Reeve and Griffin must take the risk that anything they say on the subject of the sickout could put them in jail or subject them to prohibitive fines, if the court below later decides that the opinions they expressed amounted to "approval" or encouragement of the sickout activity, or indeed of any other activity later determined by the court to be a "concerted refusal to work." Given the fact that, even though neither defendant ever placed any messages on his web site encouraging or endorsing a sickout, both have been found guilty of inciting the sickout based solely on their protected speech, it is entirely reasonable for them to conclude that further protected speech might also be held to be a basis for contempt.
Even worse, persons subjected to the TRO are compelled affirmatively to engage in speech. The TRO directs them to "take all reasonable steps within their power to prevent the aforesaid actions," and to notify all Local 2000 members "of the content and meaning of this TRO." It could be argued that this language applies only to the union and its officers, inasmuch as Reeve and Griffin have no "power" over other members and no mailing list for all members of the union. Plaintiff's counsel, however, believe that this paragraph applies to all defendants, including Griffin and Reeve who hold no union office. Therefore, in an excess of caution, both Griffin and Reeve have posted notice of the TRO on their web sites. But the continued application of the TRO to them has a severe chilling effect on their exercise of their free speech rights.
Even more troubling is Northwest's original claim that, merely because other persons have placed communications supporting the sickout on the open forum that Griffin maintains on his web site, Griffin himself may be held liable. Although, in opposing the motion to dissolve the TRO, the company distanced itself from that assertion, it was part of the evidence on which the TRO was obtained. Therefore, Griffin must worry about whether he must engage in censorship of postings on his web site in order to protect himself from contempt liability. The large number of postings to date makes this a virtually impossible task; Griffin would have to quit his job and become a full-time censor of his web site if the injunction were construed to require this. Griffin aff. ¶ 8. This is precisely the quandary that Congress wanted to avoid creating for internet hosts, and why it enacted 47 U.S.C. § 230 (see discussion infra at 25-26. And yet the wording of the "prevent" language of paragraph 3 of the TRO is certainly susceptible to the construction that Griffin must actively monitor posts to his forum and erase any expression of sympathy for the sickout. This is an especially compelling reason to act immediately to relieve Griffin of his duty to obey the TRO.
B. The Equities Tip Sharply in Favor of Defendants Reeve and Griffin.
In contrast to the severe and irreparable injury that this prior restraint will continue to have on Reeve and Griffin, lifting the TRO as to these two defendants will have virtually no impact on plaintiff at all. The company will continue to enjoy the benefits of the application of the injunction to the local union and all of its officers, employees, and other representatives, who do have power over the membership of the union, not to speak of full control of the channels of communication within the union. We understand that the company credited the TRO with ending the sickout, and there is no reason to believe that releasing two individuals whose personal responsibility for the sickout has not been proved will have any effect on Northwest's continued ability to serve the flying public. Thus, not only does the injunction cause severe irreparable injury to Griffin and Reeve, but its continuation as to them is not necessary to avoid irreparable injury to the plaintiff.
C. Plaintiff Has No Likelihood of Success in Establishing Defendants' Personal Participation in the Alleged Sickout.
We take as a given that a sickout before release from mediation is an illegal form of economic action that may be enjoined under the Railway Labor Act. We need not address, for present purposes, the findings in the TRO that Northwest Airlines is likely to succeed in showing that there was a sickout in which some persons participated, and that the union participated in calling it. Those factual questions will be open for re-examination at the preliminary injunction hearing, at which point the question for the court will be whether each of the defendants was engaged in "mere advocacy [or] advocacy 'directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action." Healy v. James, 408 U.S. 169, 188 (1972), quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), and citing several other cases.
Our points of departure from the injunction against appellants are that:
(1) the injunction against appellants is based solely on alleged advocacy of a sickout;
(2) the injunction is not justified because there is no evidence that appellants personally engaged in the alleged advocacy; and
(3) plaintiff failed to prove its case against appellants by clear and convincing evidence, as required by the Norris-LaGuardia Act.
We take these three points in turn. First, the moving papers allege, and the Court found, that a large number of employees engaged in an organized campaign of false sick calls in order to reduce the number of workers available for duty, and that the local union bore responsibility for this campaign. Several cases cited by plaintiff make clear that injunctions can be issued against individual members who have been found to have engaged in illegal sickout or other concerted activity, National Airlines v. Machinists, 416 F.2d 998 (5th Cir. 1969); Louisville & Nashville RR Co. v. Bass, 78 LRRM 2393 (W.D. Ky. 1971), but the more common approach is to enjoin only the union that is encouraging the illegal strike, and to enjoin the union's officers and representatives as a way of forcing the union to obey the injunction. E.g., Railways Clerks Lodge 2029 v. Railway Express Agency, 391 F.2d 657 (8th Cir. 1968); American Airlines v. Allied Pilots Ass'n, 53 F. Supp.2d 909 (N.D. Tex. 1999).
The complaint, however, does not specifically allege that either Reeve or Griffin personally engaged in the conduct of calling in sick when he was not sick that is, personal participation in the sickout and in any event the affidavits of Reeve and Griffin make clear that they worked all of their scheduled days during the sickout.(5) Indeed, defendant Reeve has a perfect attendance record, and has not called in sick even once over the course of his ten-year employment by Northwest Airlines. Reeve aff. ¶ 2. Hence, there can be no question of these defendants being participants in the sickout. Nor, for that matter, does either Reeve or Griffin hold union office; thus neither can be enjoined as a means of reaching the union through its officers and employees. Accordingly, the only basis for enjoining them is the proposition that they personally induced others to engage in the unlawful sickout activity.
But the law is crystal clear that individual members may not be held liable for the acts or advocacy of others; it must be proved that each member sought to be held liable personally engaged in the unlawful advocacy. Three different sources of law entitle defendants to demand such specific proof. First, section 6 of the Norris-LaGuardia Act, 29 U.S.C. § 106, provides,
No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.
The courts have routinely held that, just as an association or union cannot be held liable for the acts of individuals without clear proof of authorization, so "[i]ndividuals . . . will not be guilty merely because they are members or officers of a guilty association. Nor are individuals guilty because of the acts of other individuals in which they did not participate, or which they did not authorize or ratify." Carpenters v. United States, 330 U.S. 395, 410-411 (1957).
Second, insofar as the liability of defendants Reeve and Griffin is predicated on their web sites, the Communications Decency Act ("CDA"), 47 U.S.C. § 230(c)(1), provides that "[n]o provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider." Every court to consider this issue has ruled that the CDA creates a federal immunity against liability under any law, federal or state, that might impose liability on an internet content provider for content supplied to a website or e-mail by a different person. Zeran v. America Online, 129 F.3d 327, 330-331 (4th Cir. 1997); Lockeed Martin Corp. v. NSI, 985 F. Supp. 949, 962 n.7 (C.D. Cal. 1997), aff'd, 194 F.3d 980 (9th cir. 1999); Blumenthal v. Drudge, 982 F. Supp. 44, 49-53 (D.D.C. 1998). Thus, the allegation in the Simmons affidavit, ¶ 7(c), that Local 2000 leaders "use" Griffin's web site to communicate with members about unlawful actions is insufficient as a matter of law to support relief against Griffin. Similarly, the general allegations in the complaint, ¶¶ 25, 26, and affidavit, ¶¶ 7(c), 7(d), that Reeve and Griffin maintain web sites cannot, without specific proof that either individual has placed unlawful messages on those web sites, provide any basis for finding likelihood of success against them on the merits of the claimed incitement of the sickout, again, as a matter of law. In responding to the motion to dissolve the TRO, Northwest acknowledged that evidence of what other persons said on Griffin's web site could not be a basis for an injunction against him. P. Opp. 14-15.
Last, but certainly not least, the First Amendment protects defendants against any finding of liability based on the conduct of others. This fundamental principle was explained in detail in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982). A key issue in that case was whether Charles Evers could be held personally responsible for violent conduct that had accompanied a boycott that he had advocated; the Supreme Court held that, for such legal responsibility to be imposed, it must be shown that Evers himself had authorized, directed or ratified the unlawful aspects of the activity. Otherwise, First Amendment principles would be violated because he would be guilty only by association. "Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims." 458 U.S. at 920. Evers' mere attendance at meetings of the group, id. 924-925, mere participation in activities associated with the group that were legal in themselves, id. at 925-926, and, specifically relevant to this case, emotionally charged rhetoric that called for unity, id. 928, do not make the speaker liable for unlawful conduct by his hearers:
An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the profound national commitment that debate on public issues should be uninhibited, robust and wide-open.
Id. (quotation marks and citation omitted).
Neither of the appellants was personally involved in appeals for the lawless action of a holiday sickout. Appellee made no specific allegations about Reeve's advocacy it simply alleged that he maintains a web site on the ongoing contract negotiations and, on this basis alone, asked the court to hold him accountable for the alleged sickout. Reeve's unrefuted affidavit specifically states that he made no appeal for or support of the idea of a sickout. Without any evidence directed to Reeve individually, the injunction against him must be reversed.
Plaintiff's entire case against Griffin came to rest on a single message that he posted on his forum which, upon examination, was shown to be grossly distorted. In the Simmons affidavit, ¶ 16, a brief reference at the end of this posting, which called on flight attendants to "use the holidays like we planned," was made to appear to be an ambiguous statement, arguably a call for a sickout. To effect the deception, plaintiff attached as Exhibit 30 the wrong document, making it impossible to verify Simmons' description of Griffin's statement.
According to Simmons, Griffin
posted a message urging flight attendants to "take some action." Exhibit 30. Mr. Griffin urged flight attendants to work to rule, to decline to fly high time when asked by Northwest schedulers, to pressure Northwest flight attendants who were on special assignment (especially those who train other flight attendants) to stop their special assignments, and to "use the Holiday season like we planned."
(emphasis added in original affidavit; not in original document).
Undersigned counsel pointed out to Northwest's counsel that the Exhibit 30 attached to Simmons' affidavit not did not contain any such language and, in fact, was not written by Griffin. Plaintiff then supplied defendants' counsel with a different document which, they said, had mistakenly been replaced by the document that was filed. We invite the Court to compare Simmons' sworn account of Griffin's posting with the actual document, which was attached to Griffin's affidavit as Exhibit B and which has an entirely different tone, even though each of the words quoted by Simmons does appear there.
The message is captioned "It is Time for actual involvement. We need to get some action going." It begins with a long paragraph lamenting that the union seemed unprepared for real bargaining, such as by failing to prepare any specific counter-proposals to management's position, and urging members to "get the word out" to management, the union, and the public, just as Northwest had been saturating the public with its position in the negotiations. Griffin followed this with twelve numbered paragraphs specifying what union members should consider doing.
Paragraph 13 is the one whose language is quoted and emphasized in the Simmons affidavit: "We need to do all this soon. Let us use the Holiday season like we planned." Plaintiff asked the lower court to infer that this was a covert call for a sickout; but, in context, it is quite apparent that it is a call for members to initiate the legal communications efforts discussed throughout the memorandum. Similarly, Griffin's later statement in the same paragraph, that members should "throw the union off guard and let them know 'we', the membership have taken union matters into our own hands like we did on 26th of August" refers only to the membership's voting "no" on the TA (the ballots were counted on August 26). Griffin Aff. ¶ 9(d). Griffin went on to urge members to "call today and volunteer," to work hard to hammer out language so that there would be a basis to ask the National Mediation Board to release the union for strike action, and generally to bombard the union-side negotiators to work harder. Finally, he concluded with a plea to union members to download proposed signs for demonstrations and rallies from his web site, and to discuss the situation through chat rooms.
It is quite apparent that this is not a message calling covertly for anything, but rather a message that overtly urges members to use their right of free speech under the First Amendment and under section 101(a)(2) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411(a)(2), to express their views within the union and to management and the public, through overt and not covert action. Although we can appreciate how the district court could have concluded otherwise in light of the misleading summary in Simmons' affidavit, the hypothesis that Griffin would have undertaken this lengthy list of overt legal actions in order to create the opportunity for a covert call for a sickout is simply too absurd to be credited. And because plaintiff's counsel have refused repeated requests to provide any other evidence they have of Griffin's alleged complicity in the sickout, it must be assumed that they filed this lawsuit against Reeve and Griffin without any other evidence against them, hoping to find something through discovery.
Northwest sought to excuse its misleading description of Exhibit 30 on the ground that, even if it did not advocate a sickout, it advocated that members be familiar with safety rules, that they not work high time, and that they not participate in a particular training program, all of which, Northwest argues, would have been illegal if they had happened. However, there is no need to decide whether such activities would have been unlawful because Northwest produced no evidence whatsoever that there has been any concerted refusal to do any of these things. And, more to the point, the TRO was not based on any finding that there was such concerted activity afoot. The sole basis for the TRO was the conclusion that Northwest was likely to be able to prove that there had been a concerted illegal sickout, and, as to these defendants, that they personally fomented it. Although, as Northwest has noted, the TRO extends to other forms of concerted activity, the violation that Northwest was found likely to prove on the merits was confined to the sickout. Moreover, in a subsequent opinion addressing a discovery dispute, the Court took a narrower view of the case than Northwest cares to admit, ruling that "discovery shall be limited to the issue alleged in the complaint, specifically, the concerted sick-out." Memorandum Opinion and Order at 2; see also id. at 4 (treating the issue in the case as being whether Northwest could prove "the continued existence of a sick-out or the threat of a sick-out").(6)
Thus, Northwest's reliance on Griffin's advocacy of these other forms of activity highlights the First Amendment problems with its position Griffin's e-mail is nothing more than abstract advocacy, which cannot meet the test of "likely and imminent harm" established by longstanding First Amendment doctrine. Indeed, the First Amendment issues raised by Northwest's position were highlighted in its opposition brief, which repeatedly sought to indict defendants Griffin and Reeve on the basis of the militant tone of their communications. Northwest went so far as to argue that the Court's TRO enjoined "any effort by the Defendants to exert economic pressure on the carrier while bargaining continued" -- an overly broad characterization of the TRO that would sweep within the Court's contempt powers an effective informational leafleting campaign causing economic consequences to Northwest, despite the clearly protected status of such activities under the First Amendment.
In its papers below, Northwest made one final effort to tie Griffin into the alleged sickout, by citing a new document, an Internet posting from Griffin that was identified as Attachment B, and quoted by plaintiff thusly: "Recently, we have heard from base representatives . . . who question why the holidays are so important to our fight for a contract." Opp. 5 (ellipsis in plaintiff's brief). The brief goes on to assert that this message was posted "shortly after a Local 2000 base representative had posted an explicit argument against the 'December sickout.' See attachment L." Opp. 6 n.7. The implication was that Attachment B was an attempt to disparage Attachment L's anti-sickout message.
This implication was entirely false. Attachment L is a message from Bob Krabbe, a base representative, and it was posted on the "old" Griffin forum on October 23, 1999. Attachment B is Griffin's introduction to his "new" web site (the court can take note of the difference in the web addresses that appear on the two documents), which was put on the Internet in December, 1999. Griffin Affidavit, ¶ 12. Not only was this not "shortly after" Attachment L, but the words omitted by plaintiff's ellipsis are "such as Eric Smetana." Thus, the complete documents do not support Northwest's inference that Griffin was trying to counteract Krabbe's urging not to conduct a sickout. To the contrary, the Court can infer from plaintiff's crude redaction of these documents that the company knows it has no basis for enjoining defendants Griffin and Reeve.
The final reason why Northwest is not likely to succeed in proving appellants' complicity in the incitement of the sickout is based on the unusually high standard of proof that applies to this case. The Norris-LaGuardia Act requires "clear proof" of direct participation or authorization before an individual may be held responsible or liable for illegal activity in a labor dispute. 29 U.S.C. § 106. The Supreme Court has held that this statutory language requires courts to apply the evidentiary standard of "clear, unequivocal and convincing proof." UMW v. Gibbs, 383 U.S. 715, 737 (1968). At best, under the company's construction, Griffin's December postings were ambiguous documents, which must be treated as favoring the defendant in determining whether there is clear and convincing evidence. United States v. Montague, 40 F.3d 1251, 1254-1255 (D.C. Cir. 1994). Thus, plaintiff has no likelihood of success in proving that either Reeve or Griffin incited members to participate in the sickout.
The temporary injunction against appellants Griffin and Reeve should be vacated pending the completion of a hearing on Northwest's motion for a preliminary injunction.
Paul Alan Levy