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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT HELD, MARK HUNNIBELL,
DANIEL CAREY, and JOHN K. CUTTER,
Plaintiffs,
and
ALLIED PILOTS ASSOCIATION,
Plaintiff-Intervenor,
v. No. 97-906 (RMU)
AMERICAN AIRLINES, INC.,
Defendant.
MEMORANDUM IN SUPPORT OF PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT ON LIABILITY
This is an action under the Railway Labor Act ("RLA") in which dissident members of the Allied Pilots Association ("APA") have sued employer, American Airlines ("AA"). The suit seeks to vindi cate their right to participate in union affairs by distributing intra-union materials to their fellow employees, and orally soli citing their support, on such matters as whether to vote against ratification of a proposed collective bargaining agreement ("CBA"), and whom to elect to union office.
After plaintiffs' campaign efforts succeeded in defeating rat ification of a proposed CBA negotiated in 1996 between AA and the outgoing leadership of their union, and after ballots were mailed to union members for a vote on a new proposal, AA clamped down on its employees engaging in protected speech by issuing an edict that no pilots could enter AA's premises for any purpose other than work, and that once on premises pilots could not participate in activities other than work. Because a flat ban on intra-union cam paigning during nonwork times in nonwork areas of AA's premises violates the RLA, and because AA is discriminatorily enforcing its new rule by proscribing only intra-union campaigning, this case is ripe for summary judgment on the liability question. However, rather than asking the Court to enter an injunction based on its finding of liability, we urge the Court to give the parties an opportunity to craft a mutually agreeable order in light of the Court's holding that the RLA was violated.
STATEMENT
A. The Nature of the Operations Area and the Communications Normally Allowed in Them.
AA operates at 162 different airports across the country and around the world, including nine crew bases across the country. Statement of Material Facts ¶ 9 ("SMF 9"). Although the AA workplace includes the entire airport, as well as the planes that the company operates, the controversy in this case is limited to a segment of this overall workplace, the portion of the "operations area" where pilots are not engaged in working duties. In the papers submitted to the Court concerning plaintiffs' motion for emergency relief, the parties sometimes used different terminology to refer to the same places in the workplace. In order to be sure that the legal issues are properly focused, we will use the following terminology to describe these areas.
At each airport where American operates, the company has an area, accessible only to company staff members in possession of a key or a special security code, which we refer to as its "opera tions area." SMF 10. The remaining part of the large building that includes operations, but that also includes areas accessible to the flying public and even to the general public, is referred to as the "terminal" or the "concourse." Although many AA employees work there, for pilots the terminal functions principally as an passageway that they traverse between aircraft, building entrance, and the operations area.
Each operations area has a number of specialized subareas; de pending on the size of the particular operations area, and whether the airport is a crew base, the number of specialized subareas may be greater or smaller. But within every operations area is the portion where pilots consult computers to obtain information that they will need for their next flights. We will refer to these specialized portions of operations as "flight planning." This is a particularly significant subarea because plaintiffs and AA are in complete agreement that it is essential that flight planning activ ity be safeguarded from any distractions, and that therefore no solicitation or distribution should be permitted in flight planning areas (although, as discussed below, there is ample evidence show ing that AA is not concerned about distractions in flight planning other than union activities).
Operations areas include offices for management; working areas where pilots plan their flights, check weather and other informa tion; mailboxes; storage areas for pilots' bags; and relaxation facilities such as television rooms, sleeping rooms, smoking rooms, vending machine areas and the like. The rooms are connected by corridors, which contain, among other things, union bulletin boards and counters where the company leaves communications for employees. SMF 15. In a number of airports, operations consists of more than ten rooms, but flight planning is confined to single rooms or areas, comprising less that 25% of the total operations area. SMF 11-14.
The nonwork areas of operations are so large in order to pro vide space for the presence of pilots whose departure on their flights is by no means imminent. Pilots may arrive on one flight and be scheduled to depart on another flight hours later. E.g., Gaylord Second Affidavit, ¶ 2; Westmoreland Affidavit, ¶¶ 3, 4. Or they may live in an area far removed from the airport where they are based, and thus come into work hours before, or even the day before, their scheduled departure from the base on the first of a series of flights. E.g., Boudreaux Affidavit, ¶ 2; Finnell Affi davit, ¶ 2; Gaylord Affidavit, ¶ 8. And pilots frequently come into the base on an off-day, for such disparate purposes as check ing their mail or e-mail, picking up paychecks, using company com puters for personal travel, bidding schedules, waiting, socializing during non-work travel, and holding or participating in parties. SMF 67.
Communications having no direct relationship to the perfor mance of working duties are constantly taking place in operations, involving both pilots who are in operations because they are about to leave on a trip and those who are there off-duty. Operations
areas have bulletin boards on which every variety of non-work flyer or other writing may be posted; there are tables and counters on which pilots may leave materials advertising their own side-busi nesses, and on which commercial or other entities may leave papers that they would like pilots to pick up. SMF 16-19. The photo graphs attached to some of the affidavits amply demonstrate that some counters are literally covered with piles or cases of such ad vertisements. E.g., Held Second Affidavit, Exhibit D(1); Hunnibell Second Affidavit, Exhibits C15; McNamara Affidavit, Photo 9. Pilots are allowed to discuss non-work matters with each other, including, if they so choose, written nonwork materials that have been left for their attention. SMF 30.
In addition, commercial companies and charitable groups are allowed to set up tables in operations to demonstrate and/or sell their wares, or to solicit contributions or participation in their programs. Sometimes these are located right next to the flight planning area, obstructing access to some of the planning compu ters. SMF 20-21. In addition, the companies allows retirement parties to be held for pilots just before or after their last flight; in some airports, these occur in areas away from flight planning, but in some airports they are adjacent to and even spill into the flight planning area. SMF 24-25. These affairs, to which non-employees are invited and which, in one documented case, a barking dog attended, are often so loud that they distract pilots engaged in work-related duties including flight planning, and make it difficult to reach the planning computers. SMF 26-27. Because these events are attended by AA management, this evidence drives home how open and notorious are these non-work communications in AA's operations areas. SMF 28.
Over the years, the areas around the union bulletin board, particularly where there is an adjacent informal bulletin board for the posting of miscellaneous materials, has tended to become a natural location for pilots to gather to talk about union affairs with all those who care to participate. SMF 57. Indeed, in past years American explicitly recognized that nonwork areas of opera tions represent an appropriate forum for the discussion of union controversies, by issuing a memorandum discussing the locations in which discussions about candidates for union office should be held. SMF 83.
2. The Intra-Union Campaigns and American's Response.
Pursuant to section 6 of the RLA, AA and APA began in 1994 to negotiated possible changes to the CBA that governs the terms and conditions of employment of AA's pilots. In September 1996, APA's leaders and AA reached an agreement in principle on a set of proposed changes. Under the APA Constitution and Policy Manual, before a proposed CBA becomes effective, it must be ratified by the membership. SMF 3.
The 1996 contract proposal aroused intense controversy among APA's membership, and a group of members argued against its adop tion. These opponents sent information directly to the membership by mail and telephone, and used other media including the internet; they also distributed literature at the workplace and conducting discussions there among interested members. Verified Complaint, ¶¶ 6-7.
Thus, throughout the fall of 1996, plaintiffs and other oppo nents of ratification sought to campaign at as many of AA's nine pilot domiciles and several hubs as possible, every day from the distribution of the ballots to the last day for returning ballots. SMF 6. Campaign activities included discussing the proposed CBA with fellow pilots in non-work areas of the operations area, such as near union bulletin boards and in break areas. SMF 7, 37. Other campaign activities in the workplace included posting infor mation on bulletin boards, distributing written information to pilots, leaving information on tables or counters, and showing a video presentation explaining why the proposed CBA should be defeated. SMF 8, 37.
This campaign intensified after ballots were mailed to the APA membership in mid-December, 1996. Indeed, at one point opponents of ratification obtained permission from AA management to campaign against ratification in nonworking areas in the operations area at Chicago's O'Hare Airport ("ORD"), including the right to discuss and distribute materials and show the videotape in a special "video room." SMF 39. Throughout the foregoing activities, which oc curred from December 17 through December 20, 1996, as in other airports where campaigning took place, the pilots who were trying to persuade their fellows to vote against ratification were careful to be calm and non-confrontational, not to force unwilling pilots into conversation, and not to disrupt the work activities in opera tions. SMF 40. On a few occasions, AA management asked the pilots engaged in this campaign activity to stop what they were doing, or to observe further limitations on their activity; the pilots con cerned quickly complied with these limitations. SMF 41-42.
However, on December 20, 1996, AA management forbade several opponents of ratification from continuing their activities in op erations -- distributing of written material in opposition to the contract, showing the anti-ratification video, and discussing the CBA. Its explanation for this action was that it was AA's property and thus its prerogative. SMF 43.
The campaign against ratification was successful, with the proposed CBA voted down by a large margin. SMF 5. After the outcome was announced, plaintiff Held went to ORD operations to disseminate information about the outcome of the vote. He stood near the union bulletin board, in a nonwork area of operations, for this purpose. AA supervisors not only forbade him both to post the information on the informal bulletin board, and to distribute the information in operations, but ejected him from operations and threatened to call the police if he tried to distribute information in the terminal. Indeed, throughout the ratification campaign, AA had removed any postings that urged pilots to vote against the con tract or to band together to oppose ratification. SMF 46-49.
Within hours of the APA's beginning a strike, President Clin ton convened an emergency board which both formulated recommenda tions for a resolution of the bargaining dispute, and mediated be tween the parties with the result that AA and the APA's leadership agreed on a new proposed CBA. On April 16, ballots were mailed to the membership, with the requirement that they be returned with a postmark no later than April 30; counting of these ballots was to be on May 5, 1997. VC ¶ 9. The new proposal contained a number of highly complex and highly controversial provisions. Plaintiffs, along with many other APA members, opposed the new proposal, and wished to persuade their fellow members that the changes should be voted down. VC ¶¶ 6, 9.
The dissidents were impeded in this task, however, by new com pany policies toward employee discussion of the contract at the workplace. Both AA and the APA continued to use the workplace to disseminate their views that the contract is a wonderful deal for which the pilots ought to be very grateful. SMF 69. John Cutter's first affidavit, ¶ 13, details the resources available to AA and APA to communicate their messages. But as soon as ballots were mailed to the membership, AA began to accelerate the process, begun in late 1996 and early 1997, of excluding critical communications from the workplace.
Thus, on April 16 and 17, and on the morning of April 18, sev eral pilots who were campaigning against ratification were either ejected from AA's operations area, or directed to refrain from giv ing out materials opposing ratification in operations. SMF 52.
Plaintiff Held secured a temporary reversal of this exclusionary policy when AA's Vice-President for Flight, Cecil Ewell, agreed that pilots would be allowed to engage in anti-ratification cam paign activities in operations areas near the union bulletin board, so long as they took the materials away with them, rather than leaving a pile for others to pick up. SMF 54-55.
Held then returned to the vicinity of the bulletin board, where, within a matter of minutes, a Chief Pilot named Bob Kudwa came up to him and ordered him to move across the corridor to a specific spot in front of the bulletin board. Held reasoned that Captain Ewell had granted permission for this distribution, and therefore he responded with disbelief. Chief Pilot Kudwa grabbed Held and attempted to shove him into the designated location. After Held declined to be pushed and asked Kudwa to stop touching him, Kudwa said that Held was on American's property and warned that he would return with a witness to give Held a direct order (implying that Held would then be disciplined for insubordination). SMF 56, 58.
For the next two days, over the weekend of April 19 and 20, leafleting and discussion took place without incident at a number of AA pilot bases throughout the country. Although it is clear that some pilots were unhappy to see the CBA opponents expressing their views at this location, the campaigners were careful not to force their views on unwilling listeners and not to disrupt the working activities in operations. SMF 59, 61. During this period, AA continued to remove bulletin board postings that opposed the
CBA. SMF 60.
On April 21, however, Ewell reversed his position without warning. Asserting that unspecified incidents "over the weekend" had involved "unacceptable and inappropriate behavior including confrontations," and that some pilots had "complained that these situations impacted the safety of our flight operations," Ewell purported to lay down a strict rule that nobody enter operations "for any purpose other than to go to work and [that] no one may conduct any business unrelated to the safe operation of our air craft." SMF 64. Pursuant to this rule, many pilots who wanted to express their views about the CBA or other intra-union matters in operations, including the plaintiffs, have been barred from doing so. SMF 65.
3. Evidence About American's Asserted Justifications for Shutting Down the Campaign in Operations.
AA has cited three "incidents", all occurring at ORD, as sup porting this decision: the April 18 encounter between Held and Kud wa; campaign activity on April 19 about which some pilots com plained, and during which the campaigners refused a request from a chief pilot for copies of what they were giving out; and the dis semination of one flyer containing strong language. SMF 75. It is not clear whether AA is contending that these incidents actually occurred, or only that it believed that they had occurred at the time it made its decision. AA has not provided any evidence, sworn on a first-hand basis, showing actual misconduct by the CBA oppo nents; instead, it has only provided copies of some pilot com plaints and Chief Pilot Ewell's stated belief that they had oc curred when he decided to cut off campaigning.
What is clear is that, although the alleged incidents involved a handful of individuals at a single airport, AA not only did not discipline those individuals for their alleged misconduct, but chose to respond by cutting off campaign activity by its entire pi lot workforce and at every airport throughout its system. SMF 76- 80. Moreover, AA barred CBA-related campaigning even before it had any reason to believe -- if it ever did -- that the campaigning had an adverse effect on the workplace generally, or on safety specif ically. SMF 44, 47, 53.
AA has also equivocated about just what it was that the Ewell edict forbade. Although the order recites that inappropriate cam paign activity had occurred, the rules contained in the memorandum make no express reference to campaigning. Instead, on its face the order purports only to forbid pilots from coming into operations while they are off-duty, and to forbid pilots who are inside opera tions from doing anything other than work-related activities.
However, it is undisputed that, notwithstanding this order, AA continued to allow pilots to enter operations when they were not on duty, and continued to allow pilots to engage in non-work activi ties while they were in operations (except for union-related commu nications). SMF 66-67. Moreover, the broad spectrum of non-work communications -- apart from talking or writing about union matters -- continued unabated in operations with the company's blessing. SMF 68, 74. In addition, undisputed evidence drawn both from the affidavits provided by the plaintiffs and from internal company documents shows that company officials consistently referred to the Ewell edict as one that forbade campaign activity, but not other conversations involving off-duty employees. SMF 72. And AA and its supervisors have variously referred to the rule against being in operations when not on duty as one that could be enforced "if we want," SMF 48, or as one that only forbids access to off-duty em ployees who "interfere with the orderly work of others who are on- duty." SMF 66. It is therefore clear that, whatever after-the- fact characterizations may be offered by AA counsel, the Ewell order was intended to stop union-related campaign activity and not more general off-duty activity or communications -- and plaintiffs' motion for summary judgment is based, in part, on the undisputed character of this fact.
There is also undisputed evidence that, even as a ban on cam paigning, Ewell's rule was not applied in an even-handed fashion. On a number of occasions, campaigning in favor of the proposed CBA's or against its opponents was allowed, while comparable communications against the CBA's (in person campaigning, posting of flyers, or dissemination of leaflets) was barred. SMF 69-71.
Finally, the undisputed evidence shows that AA has singled out union related communications for removal from the general purpose bulletin boards in operations. Over time, it has given shifting explanations for the removal of anti-ratification material. SMF 33. Some pilots were told point-blank that postings about the con tract, but not other materials, were barred from the general bulle tin boards. SMF 34. At the initial stages of the litigation, AA asserted that postings could not be put up without submission to and approval and authorization by local management, and that un authorized postings were removed. SMF 35. Finally, in its answers to plaintiffs' discovery requests (which asked American to identify all of these alleged approvals), AA acknowledged that there was no requirement of advance approval, but said that posting of "union- related materials" on general purpose bulletin boards, unlike materials on other subjects, was strictly prohibited. SMF 36. We argue below that this patent confession of discrimination against union-related communications is itself actionable under the RLA.
AA's ban on union-related communications in operations contin ued even after the balloting on the CBA ratification referendum was complete. The first ballots for the APA's union-wide officer elec tions were mailed to the membership on May 1, the day after ballots in the ratification referendum had to be postmarked. SMF 81. Andy Sizemore, a candidate who was seeking to campaign for union office in operations, and whose campaign activity had had no adverse effect on company operations, was twice barred from campaigning and ejected from operations. SMF 85. Not only had there been previous campaigning in the 1997 election that had no adverse impact on the workplace, but during the 1994 election AA had expressly authorized campaigning in operations, in locations away from flight planning, and AA acknowledges that it has no information suggesting that such campaigning had any adverse effect on safety. SMF 82, 84, 86, 89. Moreover, other candidates were permitted to campaign for office on the same day that Sizemore was barred. SMF 88.
4. Procedural History.
Plaintiffs filed this action on April 29, 1997, and sought a preliminary injunction and temporary restraining order against implementation of the proposed CBA pending a hearing on the lawful ness of AA's rule against campaigning. After the CBA was approved by a large margin, plaintiffs withdrew their request for emergency relief, and amended their complaint to prevent further enforcement of AA's unlawful policies which continue to prevent its pilot em ployees from engaging in workplace solicitation and distribution concerning union affairs. The parties have exchanged responses to written discovery, and have agreed to file motions for summary judgment while acknowledging that any party may urge, in opposition to summary judgment, that further discovery is required.
ARGUMENT
Plaintiffs' motion for summary judgment must be granted if there is no genuine issue regarding any of the facts which, if ac cepted, entitle the plaintiffs to relief. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
I. THE RLA ENTITLES PLAINTIFFS TO SUE TO PREVENT AMERICAN FROM FURTHER INTERFERING WITH THEIR RIGHT TO PARTICIPATE IN THEIR UNION'S ORGANIZATION BY COMMUNICATING WITH THEIR FELLOW EMPLOYEES ABOUT UNION AFFAIRS.
So far as we are aware, no reported case addresses the specif ic legal question presented here -- whether an RLA employer inter feres with the organizational rights of its employees when it in tervenes in an intra-union referendum by cutting off the ability of employees to communicate with each other about union affairs in nonwork areas of property owned by the employer. However, estab lished principles under the RLA and comparable labor statutes lead ineluctably to the conclusions that American violated its employ ees' rights, that this violation is actionable in this Court, and that the relief sought here -- interdiction of American's rule against communication lest it affect future elections -- is appro priate.
Plaintiffs' claims in this case are based on section 2 of the Railway Labor Act, 29 U.S.C. § 152. Section 2, Third guarantees to all employees the right to designate representatives without inter ference, influence or coercion. Section 2, Fourth guarantees em ployees "the right to organize and bargain collectively through representatives of their own choosing." (emphasis added). To pro tect that right, section 2, Fourth further forbids employers to "deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice," to "interfere in any way with the organization of its employees" or to "influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization."
The courts have uniformly recognized that, although there is no express cause of action for violations of subsections Third and Fourth, employees (or labor organizations) whose rights under those provisions have been violated may sue the employer in district court. Roscello v. Southwest Airlines, 726 F.2d 217, 220 n.2 (5th Cir. 1984); Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 924-925 (1st Cir. 1983); Adams v. Federal Express, 654 F.2d 452 (6th Cir. 1981), aff'g, 470 F. Supp. 1356 (W.D. Tenn. 1979). Employees may sue regardless of whether they are already represented in collective bargaining by a certified union, and even if the issue could be pursued through the grievance procedure. E.g., Texas & New Orleans R. Co. v. Brotherhood of Ry. & SS Clerks, 281 U.S. 548, 558, 567-568 (1930) (suit could be brought to enforce section 2, Third); Fennessy v. Southwest Airlines, 91 F.3d 1359 (9th Cir. 1996); Conrad v. Delta Airlines, 494 F.2d 914, 918 (7th Cir. 1974). The D.C. Circuit has cited Conrad favorably, Air Line Pilots Ass'n v. Northwest Airlines, 627 F.2d 272 (D.C. Cir. 1980), and has allowed organized employees to sue under §§ 2, Third and Fourth. ALPA v. Eastern Air Lines, 863 F.2d 891, 900 et seq. (D.C. Cir. 1988); see also Machinists v. Continental Airlines, 754 F. Supp. 892, 896 (D.D.C. 1990); ALPA v. Eastern Air Lines, 701 F. Supp. 865, 877-878 (D.D.C. 1988), aff'd mem. 889 F.2d 291 (D.C. Cir. 1989).
It is also well established that section 2, Third and Fourth protects more than the naked right to support certification of a particular union. The RLA protects the right to be an active union member who pursues issues even if they be antagonistic to manage ment, Conrad v. Delta Airlines, 494 F.2d 914, 917-918 (7th Cir. 1974), and to participate in union activity such as strikes. TWA v. IFFA, 489 U.S. 426, 432-436 (1989); Arcamuzi v. Continental Air Lines, 819 F.2d 935, 939 (9th Cir. 1987); see also Radio Officers Union v. NLRB, 347 U.S. 17, 40 (1954) (NLRA protects the right to be active or passive in union affairs, to be a leader, a follower, or neither). Similarly, the RLA has been held to protect members' right to run for union office and criticize employer practices. Clift v. United Parcel Service, 133 LRRM 2639, 2641 (W.D. Ky. 1990) (RLA case); Roadway Express v. NLRB, 831 F.2d 1285 (6th Cir. 1985) (right to urge union reform), Helton v. NLRB, 656 F.2d 883, 887 (D.C. Cir. 1980) (same). And the RLA similarly protects the right to choose not to support or participate in union activities, such as a strike. TWA v. IFFA, 489 U.S. 426, 436 (1989).
"[C]arefully drawn analogies from the federal common labor law developed under the NLRA may be helpful in deciding cases under the RLA." TWA v. IFFA, 489 U.S. 426, 439 (1989). Thus, for example, in TWA the Court relied heavily on its previous NLRA decisions in such cases as NLRB v. Mackay Radio, 304 U.S. 333 (1938), and NLRB v. Erie Resistor, 373 U.S. 221 (1963), in deciding the rights of returning strikers vis-a-vis replacement workers under the RLA, based on the rights to strike and not to strike. The D.C. Circuit similarly adopted the NLRB's rule in Wright Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1st Cir. 1981), as the standard for mixed motive claims of discrimination under the RLA. ALPA v. Eastern Air Lines, 863 F.2d 891, 902-903 (D.C. Cir. 1988); accord Lebow v. American Trans Air, 86 F.3d 661, 666 (7th Cir. 1996). See also In re Continental Airlines Corp., 901 F.2d 1259, 1264-1265 (5th Cir. 1990) (NLRA analogy used to decide back pay issues).
Closer to this case, courts have relied on NLRA precedents under such cases as Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), in deciding the rights that employees have to communicate their union sentiments at the workplace. Scott v. American Air lines, 488 F. Supp. 415, 419 (E.D.N.Y. 1980); Adams v. Federal Express, 470 F. Supp. 1356, 1363 (W.D. Tenn. 1979), aff'd on other grounds, 654 F.2d 453 (6th Cir. 1981). These courts have treated section 8(a)(1) as analogous to the section 2, Third and Fourth, because, like these RLA sections, section 8(a)(1) forbids employers to "interfere with, restrain or coerce employees in the rights guaranteed by section 7" of the NLRA, in holding that employers may not forbid the wearing of union insignia on the job. Such similar ity in the statutory language, along with the similarity in purpose between the two statutes, makes it particularly appropropriate to borrow from NLRA precedent to govern situations with respect to which the RLA has not yet been specifically interpreted.
Plaintiffs here invoke, by analogy under the RLA, another as pect of Republic Aviation. In Republic Aviation, the Supreme Court adopted a presumption that an employer rule forbidding solicitation by union employees outside of working time, although on company property, presumptively interferes with the right of self-organiza tion and therefore violates section 8(a)(1) of the NLRA, absent concrete evidence that special circumstances make the rule neces sary for production or discipline. 324 U.S. at 803-804 and n.10. Elaborating on this rule, the Board laid down the fundamental prin ciple, followed ever since, that the distribution of union litera ture may be forbidden only in working areas and on working time. Stoddard-Quirk Mfg. Co., 138 NLRB 615, 51 LRRM 1110 (1962). No- solicitation or no-distribution rules that fail to recognize the right to distribute intra-union literature in nonwork areas of the employer's premises, during nonwork times, are presumptively in valid. NLRB v. Transcon Lines, 599 F.2d 719, 721 (5th Cir. 1979). Even an otherwise valid rule will be invalid if it is promulgated or enforced in a discriminatory manner. Restaurant Corp. of America v. NLRB, 827 F.2d 799, 806 (D.C. Cir. 1987). Similarly, although an employer is entitled to restrict access to bulletin boards and other posting areas in its workplace, it must enforce such rules even-handedly; thus, if it allows posting of personal and commer cial notices, it must also allow the posting of union-related mat erials. J.C. Penney Co. v. NLRB, 123 F.3d 988, 996-998 (7th Cir. 1997). Moreover, if an otherwise valid rule limiting workplace communication is adopted for the discriminatory purpose of restric ting union speech of which the employer disapproves, that too con stitutes a violation of section 8(a)(1). Roadway Express v. NLRB, 831 F.2d 1285, 1289-1290 (6th Cir. 1985).
II. THE UNDISPUTED FACTS ESTABLISH AMERICAN'S LIABILITY FOR RLA VIOLATIONS.
The undisputed facts show that AA has violated each of these principles. We address in turn AA's violations with respect to posting and leaving written information in the workplace; oral sol icitation of other employees to support candidates of the plain tiffs' choice and to oppose ratification of the proposed CBA's; the distribution of literature relating to plaintiffs' union activ ities. We then show that the undisputed facts require rejection of each of AA's affirmative defenses on those violations.
A. Defendant's Restrictions on Each of Plaintiffs' Union-Related Communications Violated Established Rules Protecting Such Communications.
1. Posting Flyers on Bulletin Boards and Leaving Flyers for Employees to Pick Up.
As noted above, an employer need not provide places for em ployees to post information about union affairs for the edification of their fellow employees, or to leave copies of written materials for their fellow employees to pick up. If, however, the employer chooses to allow some persons to communicate on some subjects in this manner, it creates a limited purpose forum to which union- related communications must be given equal access. The undisputed facts establish that such a forum was created in this case. Thus, in most operations areas there are, in addition to the company and union bulletin boards, bulletin boards or wall spaces that by cus tom have become available for employees and even non-employees to post or leave written information for pilots to read and/or pick up. Nor is this just the occasional posting or piling of litera ture. To the contrary, the affidavits of several witnesses in ad dition to the plaintiffs, as well as numerous photographs submitted with the affidavits, establish beyond cavil that some parts of operations are almost flooded with such materials. SMF 16-19 and evidence cited there.
With respect to the bulletin boards (but not the tables and counters), AA concedes not only that postings are allowed, but that its rule is that it is only union-related postings that are barred from these bulletin boards. SMF 36. This is an admission of dis crimination against union organizational activity which is a per se unlawful interference. See J.C. Penney Co. v. NLRB, 123 F.3d 988, 997 (7th Cir. 1997).
The company's contention is apparently that persons desiring to post information can do so on the APA's bulletin boards, so long as they follow the APA's "procedures" for posting. AA Answers to Plaintiffs' Interrogatory Nos. 1 and 2; SMF 36. Because, under the CBA, access to APA bulletin boards requires the signed or initialed approval of the union officials at that base, id., this is small comfort for the union dissident who seeks to post information in opposition to the political position of the officials who must approve that request. Not surprisingly, the evidence shows that union officers have expressed hostility to the posting of dissident material on the bulletin boards under their own control. E.g., Dudley Affidavit, ¶ 4-5. And, in any event, it is simply not a defense to a charge of discriminatory limitations in access to a general purpose bulletin boards that there is already an official union (or indeed any other kind of) bulletin board. Roadway Express v. NLRB, 831 F.2d 1285, 1288, 1290 (6th Cir. 1985); Helton v. NLRB, 656 F.2d 883 (D.C. Cir. 1980). Moreover, Section 30(A) of the CBA (renumbered as 24(A) in the version that was ratified last year) only provides for union bulletin boards at the nine crew bases; at all of the other airports, this supposed alternative lo cation for the posting of union-related literature simply does not exist.
2. Oral Solicitation of Other Employees.
The core holding of Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), on which plaintiffs rely here, is that employees are presumptively permitted to engage in "solicitation" -- oral discus sions of union affairs -- during nonworking times. In addition, an employer that permits some kinds of discussions during working time must not discriminate against union-related discussions. NLRB v. Olympic Medical Corp., 608 F.2d 762, 763-764 (9th Cir. 1979). The undisputed evidence shows that AA violated plaintiffs' rights in both respects.
Thus, AA adopted a broad rule -- both the Cecil Ewell edict of April 21 and previous orders issued pursuant to similarly broad prohibitions -- that forbade pilots opposed to ratification from engaging in oral communications in which they urged their fellow employees to support their position. SMF 43, 46, 52, 64, 72. The undisputed evidence is that plaintiffs and the other campaigners recognized that they were not to attempt to deliver their campaign messages to pilots who were engaged in flight planning or other working activities in operations, but were limited to talking to those who were walking through the hallways, sitting in lounges, or otherwise apparently not engaged in working activities. The prohi bition of union-related discussions at nonwork times in operations with the latter categories of union members was a per se violation of the RLA.
But in addition to the per se violation, the undisputed evi dence is that AA's operations areas were saturated with non-union
related communications, both by employees with each other and by non-employees with employees. AA provides a large number of rooms for pilots while they wait between flights, or which were made available to pilots who might come in on their off-days for one purpose or another, with televisions, smoking and non-smoking lounges, chairs and couches for reading, and even sleeping areas, making such communications among employees inevitable, if not ac tually encouraged. Commercial enterprises, doing sales and product demonstrations, and charitable groups, urging pilots to give them money or participate in their worthy causes, were constantly in operations, available to employees who were both working and not working. And pilots were repeatedly invited to attend retirement parties in various parts of operations, apparently almost a weekly event at the larger bases, where they engaged in a variety of non work communications with each other. For AA to allow such commu nications, while forbidding conversations directed to union contro versies of immediate interest to all employees -- indeed, favored non-union communications were allowed in or near flight planning, while union-related communications, even when allowed, were directed away from flight planning -- was patently discriminatory, also in violation of the Act. NLRB v. Central Power & Light Co., 425 F.2d 1318, 1323 (5th Cir. 1970).
3. Distribution of Written Materials.
Because the distribution of written materials creates the pos sibility of greater distraction from work, as well as creating a possible problem of litter or the materials being caught in machi nery, the NLRB allows somewhat greater limits on distribution than on solicitation. Blanket bans on distribution are allowed so long as they permit union-related activity in nonworking areas and at nonworking times. Eastex v. NLRB, 437 U.S. 556, 571 and n.21 (1978); Restaurant Corp. of America v. NLRB, 827 F.2d 799, 806 (D.C. Cir. 1987); Stoddard-Quirk Mfg. Co., 138 NLRB 615, 51 LRRM 1110 (1962). But as in the case of no-solicitation rules, an otherwise proper rule will be invalidated if it is enforced in a discriminatory manner, such that non-union related distribution is permitted but union-related distribution forbidden. Clothing Wor kers Midwest Jt. Bd. v. NLRB, 564 F.2d 434, 446 (D.C. Cir. 1977). Again, the undisputed evidence is that AA violated its obligations in both respects.
Thus, plaintiffs sought to be able to distribute their written materials only in the passageways near the entrance to operations, beside the union bulletin board, or in non-working rooms away from the flight planning areas -- classic nonwork areas of the work place. The undisputed evidence also shows that the nonworking areas of operations are well-separated from the working portions by both walls and distance. There was, to be sure, some disagreement in AA's opposition to the motion for a preliminary injunction with the proposition that there were any nonworking areas in what AA called its "operations rooms." For the most part, however, this seemed to be primarily a difference in terminology (AA seemed to be using the term "operations room" to describe the areas that plain tiffs call "flight planning", and the undisputed evidence is that the latter are a small part of the overall operations areas as here defined). See also AA Answer to APA Interrogatory No. 4 (explain ing that AA denied having "relaxation facilities in operations" be cause that might have been understood to admit presence of relaxa tion facilities in "spaces used specifically for flight planning activities"). And, in any event, AA submitted no evidence that every part of its operations areas are working areas, presumably because it would be difficult to explain how such places as TV rooms, lounges, couches, sleeping areas, and entryways could fall into that category. The evidence in this regard thus remains undisputed.
Moreover, there is overwhelming and undisputed evidence that AA's operations areas are replete with distribution of materials by others to employees. The same sales and charitable operations that engage in oral communications with employees are generally engaged in giving or selling them goods and services, including, according to the evidence, cookbooks, brochures, business cards, various forms and other papers. Defendant's memoranda and interrogatory answers quibble about whether these sales and solicitations occur close enough to flight planning to distract pilots from the work that is conducted there -- even this evidence, sworn only on infor mation and belief, does not create a genuine issue in that respect -- but there is no serious dispute that they occur within the oper ations area. Accordingly, there is no genuine issue about whether plaintiffs have established a prima facie case that the prohibition against in-person distribution of materials, like the bans on post ing, leaving piles of literature, and oral solicitations, inter fered with union organization in violation of the RLA. See Lucille Salter Packard Children's Hosp. v. NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996) (discrimination against non-employee distribution of union literature).
B. There Is No Genuine Issue About the Facts Needed to Defeat American's Defenses.
AA has articulated three separate defenses to counter the ap plication of established law requiring employers to allow the communication in which the plaintiffs have attempted to engage. AA has argued (1) that, even if plaintiffs were prevented from commu nicating in the way they wished at the workplace, nevertheless they had alternate ways of communicating outside the workplace; (2) that it did not bar solicitation and distribution by on-duty employees, but only forbade employees from entering the workplace while they are off-duty; and (3) that it has a business justification for its restrictions. As we now show, however, the first defense fails because the availability of alternate means of communication cannot legally justify restrictions on workplace communications by an employer's own employees; the other two defenses fail because, although they are legally proper, the undisputed facts in the record defeat them here.
1. The Alternate Means Defense.
American apparently will argue that plaintiffs had other ways of communicating their message to employees. The D.C. Circuit has held, however, that the existence of alternate means of communica tion is irrelevant to whether the employer has interfered with its employees in violation of section 8(a)(1), Helton v. NLRB, 656 F.2d 883, 896 (D.C. Cir. 1980), and the same rule should be applied un der the RLA. See also Lechmere, Inc. v. NLRB, 502 U.S. 527, 537 (1992) (lack of alternate means of communication not needed when it is employer's own employees who seek to communicate in workplace); Metropolitan Dist. Coun. of Carpenters v. NLRB, 68 F.3d 71, 75 (3d Cir. 1995) (same). To be sure, the existence of adequate alternate means of communication might have borne on the propriety of injunc tive relief against implementation of the CBA based on AA's viola tions. But that relief is no longer requested.
Before turning to the undisputed facts with respect to the re maining two defenses, however, we stress that these latter two de fenses apply only to the rules against solicitation and distribu tion. AA has made no effort to justify either the "off-duty" de fense or the "business justification" defense as they apply to pos tings on bulletin boards or leaving batches of flyers for pickup. These restrictions, after all, apply equally to on-duty and off- duty employees, and even defendant's papers have not suggested that postings created any disruption of the workplace or any safety hazard. Accordingly, if the Court agrees with plaintiffs that the undisputed facts support their claims with respect to placing notices on bulletin boards and leaflets on tables or counters, and further accepts our contention that there is no alternate means defense for rules against communications by employees at their own workplace, then plaintiffs are entitled to summary judgment on those claims regardless of the facts regarding the other defenses.
2. The "Off-Duty Employee" Defense.
AA has indicated that it will defend its restrictions on plaintiffs' rights of communication on the theory that, rather than barring union-related communications, it only restricted appear ances at the workplace by off-duty employees. In this regard, the NLRB has recognized the right of an employer to exclude employees from the interior of its plant when they are not on-duty, so long as the rule applies without regard to the purpose of the employee in entering the premises. GTE Lenkurt, 204 NLRB 921, 83 LRRM 1684 (1973). However, the employer may not apply the rule only to employees entering the premises for purposes of union activity; if it allows employees to come into its premises for other nonwork purposes, it is held to have interfered with their organizational rights in violation of section 8(a)(1) if it excludes them based on their union organizational activity. Steelcase, 316 NLRB 1140, 149 LRRM 1047 (1995); Automotive Plastic Technologies, 313 NLRB 462, 145 LRRM 1049, 1050-1051 (1993); Tri-County Medical Center, 222 NLRB 1089, 91 LRRM 1323 (1976). See generally I The Developing Labor Law 100 (3d ed. 1992).
The undisputed evidence shows in several respects that AA's off-duty defense does not justify its actions. First, and most
important, AA admits that, notwithstanding the Ewell edict, it continued to allow off-duty pilots to enter operations throughout the campaign periods for the CBA ratification referenda and the APA officer elections, and indeed up to the present time, so long as they were not "disruptive." SMF 66, 72. See also Faas Affidavit, ¶ 8 (rule against off-duty employees who are not campaigning would only be enforced "if we want"). Under the Tri-County Medical doc trine, this alone is enough to entitle off-duty pilots who wanted to campaign in nonwork areas and nonwork times to enter operations for that purpose. Indeed, such uncontrolled discretion to allow or not allow communications by off-duty pilots, based on the whim of a supervisor, poses grave dangers of having censorship directed only to statements whose content the company does not like, and should not be countenanced. Staub v. Baxley, 355 U.S. 313, 322, 325 (1958).
Second, AA has identified six individuals as the only ones ejected from operations during the entire period between December 1996 and May 1997. Each of those individuals were either giving out intra-union literature, or discussing intra-union issues with their fellow employees (and each opposed the proposed CBA's). SMF 70. Third, the undisputed evidence is that the Ewell edict was applied with equal fervor to pilots who were reporting early for duty, or who were campaigning in between trips, as well as to pilots who were coming to operations on their off-days. SMF 65. Finally, the undisputed evidence is that, in ejecting pilots from operations, AA supervisors routinely denied that the Ewell edict generally forbade off-duty access, but rather characterized it as forbidding only campaigning. SMF 72.
3. The Business Justification Defense.
Under the NLRA, a blanket ban on solicitation and distribution is only presumptively unlawful -- an employer may justify a partic ular rule by citing unusual concerns relating to production and discipline. Minneapolis-Honeywell Regulator Co., 139 NLRB 849, 51 LRRM 1400 (1962). It appears that AA will be making such arguments in this case. However, the undisputed evidence shows that those arguments cannot be sustained as a matter of law.
First, AA's papers hint that it may be planning to make an ar gument that the rule against solicitation and distribution was jus tified because the campaigning was "disruptive" of the normal wor king activities in operations. But no actual evidence of disrup tion has been submitted -- to date, there is only an interrogatory answer, sworn on information and belief by Cecil Ewell, reciting actions that he was not personally present to observe. SMF 75. And the law makes this affirmative defense dependent on the intro duction of evidence showing that the "restriction is necessary." Minneapolis-Honeywell Regulator Co., 139 NLRB 849, 51 LRRM 1400, 1401 (1962), quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956). Plaintiffs' evidence shows that they and their fellow advocates took pains to ensure that their solicitation and distri bution was not disruptive (as much because they thought it would detract from their effectiveness as out of a sense of professional ism). SMF 40, 61. This alone warrants summary judgment on the disruption issue.
Moreover, there is very ample and wholly undisputed evidence that a great deal of communication is tolerated in operations de spite the fact that it can be extremely disruptive and distracting -- so long as the communication is on nonwork subjects that the company likes. SMF 22, 26 and cited evidence. And, finally, AA's own evidence reveals that the only persons ejected for "disruption" were persons who were campaigning on intra-union issues. SMF 70. Thus, the argument about "disruption" need not detain the Court long.
More troubling, at least on the surface, is AA's apparent argument that the safety of its operations may have been adversely affected by anti-ratification campaign activity in operations. But even in this respect, the evidence now in the record fails to cre ate a genuine issue barring summary judgment in plaintiffs' favor.
First, although an affirmative defense based on impact on safety is defendant's burden to prove, it has presented no admis sible evidence that any conduct by any campaigner created any safe ty problem. To date, it has provided plaintiffs with unsworn mes sages from some individual pilots, as well as an interrogatory an swer, sworn on information and belief, averring that Cecil Ewell, who was not present at any of the alleged incidents, thought at the time he issued his April 21 order that three discrete incidents had occurred and had affected safety. AA's answers to requests for ad missions further reveal that AA does not have information about any other allegations of threats to safety. But under section 8(a)(1) of the NLRA, and we believe under section 2 of the RLA as well, it is irrelevant whether the employer acted in good faith, because an objective test is applied. NLRB v. Darlington Mfg. Co., 380 U.S. 263, 269 (1965). Thus, in order to survive summary judgment against its safety argument, AA must come forward with evidence sufficient to create a genuine issue about whether such incidents occurred, as well as whether they created a safety problem.
The first incident allegedly occurred on the afternoon of April 18, when plaintiff Held went to the hallway near the union bulletin board to give out information about the 1997 CBA proposal. The undisputed evidence is that Chief Pilot Kudwa approached Held, directed him to stand closer to the union bulletin board, and, when Held did not react quickly enough, attempted to push Held into the spot to which Kudwa had directed him. Held refused to be pushed and directed Kudwa to remove his hands from Held's body. Kudwa threatened to return to give Held a direct order but ultimately did not. Although AA's papers indicate that the company disputes Held's sworn account (which is supported by another pilot who was present), AA has presented no contrary evidence.
The second incident occurred over the weekend of April 19 and 20, when a few pilots, in the course of their campaign activity, allegedly formed a gauntlet that pilots had to run in order to en ter operations; this allegedly upset some pilots who did not want to talk about the proposed CBA. But the undisputed testimony in the record is that the campaigners did not disturb pilots at work, did not confront any persons who did not wish to talk about the agreement, and certainly did not form a gauntlet. SMF 61 and evidence cited there. Although we may assume that some other pilots did not like the fact that other pilots were expressing ideas with which they strongly disagreed, the fact that discussion about union matters may provoke "discord and strife" among employ ees is not a sufficient business justification to overcome the pre sumptions allowing it. Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (5th Cir. 1976). AA should not be able to exercise a heckler's veto, see Gregory v. City of Chicago, 394 U.S. 111 (1969), by manu facturing safety justifications to exclude undesired communications from the workplace.
The third and final incident on which AA appears to rely is the distribution of a leaflet containing "profanity." We do not dispute that this leaflet was given out at ORD. But labor law re cognizes that, in the course of labor disputes, workers may on occasion use language that might not be appropriate at a tea party, without losing protection for their right to communicate. Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 726, 731 (5th Cir. 1970) (unspecified profanity directed at management); Calliope Designs, 297 NLRB 510, 133 LRRM 1238 (1989) (other employee called "whore"). This leaflet does not exceed those bounds, and in any event its dissemination by one person is scarcely a basis for cut ting off the expressive rights of the other 9,000 pilots at AA.
This leads us to our other ground for summary judgment with respect to the safety issue. Even if AA succeeded in showing that some of these alleged incidents occurred, it has acknowledged that they are the only such incidents of which it is aware; that they all occurred at one airport (ORD) over a 48 hour period in April; and that a discrete number of pilots were involved. And yet AA re lied on these alleged misdeeds of a few to deprive each and every other pilot in its employ of the right to communicate at every one of the other 161 operations areas in its system. Even if a few individuals may properly be punished for their misconduct during otherwise protected activity -- and they were not even charged -- that does not deprive the remaining employees of their legal pro tection. North Cambria Fuel Co. v. NLRB, 645 F.2d 177, 180 (3d Cir. 1981); ILGWU v. NLRB, 237 F.2d 545, 550 (D.C. Cir. 1950).
Moreover, AA's admission that it has no information about any other incidents apart from these three means that it had no safety justification for its repeated interference with solicitation and distribution before the first of the incidents occurred on the afternoon of April 18, 1997. Yet the undisputed evidence is that pilots were limited or barred from campaigning in operations in December, 1996, and on January 8, April 16 and 17, and the morning of April 18, 1997. Each time AA barred campaigning in operations without even a purported safety justification, it violated the RLA, and plaintiffs are entitled to summary judgment on the question of AA's liability for these incidents. Similarly, although election eering was expressly permitted in operations in connection with the 1994 APA officer elections, and occurred in connection with the 1997 officer election, all without a single incident even allegedly affecting safety, in May 1997 AA prohibited campaigning for union office as well. This, too, violated the RLA because such union activity was barred without any justification.
For all of these reasons, AA's purported justifications for its blanket ban on distribution and solicitation in operations do not withstand scrutiny, and so cannot stand as a barrier to summary judgment on the issue of liability for its interference with plain tiffs' union organizational activity.
III. THE COURT SHOULD GIVE THE PARTIES AN OPPORTUNITY TO AGREE ON THE APPROPRIATE RELIEF FOR AMERICAN'S VIOLATIONS OF THE RLA.
Assuming that the Court agrees with our arguments to this point, and grants summary judgment regarding American's violations of the Railway Labor Act, the Court should delay decision on the appropriate relief to to awarded for these violations in order to give the parties an opportunity to resolve this aspect of the case themselves.
We are not seeking such an order at this time, in part, be cause the discovery exchanged by the parties has not yet been sufficient to ascertain just what distribution and solicitation rules would be appropriate at many of the airports in the AA system. The parties agreed that, pending the filing of the motions for summary judgment, AA would not have to produce information about the layout of any airport other than DFW and ORD. The parties recognized that a fair amount of effort would be required to obtain diagrams and other information about all those airports, and that AA could properly be spared that burden until the Court decided whether it had jurisdiction of the case and whether it could properly bar all distribution and solicitation, and other forms of union activity in all of its operations areas. Although plaintiffs managed to obtain a diagram of one other airport (JFK), they still lack information about the other 159 airports.
Moreover, the parties may well be able to resolve the question of relief without imposing on the Court for an order. We firmly believe that all parties are mindful of the Court's admonition, in directi
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