in the united states district court for the ......chicago o’hare international airport...

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

________________________________________________ )

AIR SERV CORPORATION, ) ) )

Plaintiff, ) )

v. ) Civil Action No. __________ )

SERVICE EMPLOYEES INTERNATIONAL UNION ) LOCAL 1, ) )

Defendant. ) ________________________________________________)

VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Introduction

1. Plaintiff Air Serv Corporation (“Air Serv”) brings this suit seeking injunctive and

declaratory relief in connection with an illegal job action involving Air Serv employees at the

Chicago O’Hare International Airport (“ORD”). Defendant Service Employees International

Union Local 1 (“Local 1”), a labor union that represents some of Air Serv’s employees at ORD,

has threatened to include Air Serv employees in a strike Local 1 has called for Tuesday,

November 29, 2016, among employees of several employers at the airport. The threatened job

action would violate the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151 et seq., to which Air

Serv is subject. Local 1’s unlawful use of economic force threatens to cause substantial

disruption to airline operations at ORD, as well as other irreparable harm, and thus must be

enjoined.

2. One of the primary purposes of the RLA is to “avoid any interruption to

Case: 1:16-cv-10882 Document #: 1 Filed: 11/28/16 of 13 PageID #:1

2

commerce or to the operation of any carrier engaged therein.” 45 U.S.C. § 151a. This principle

is reflected in Section 2, First of the RLA, 45 U.S.C. § 152, First, which imposes a duty on “all

carriers, their officers, agents, and employees to exert every reasonable effort . . . to settle all

disputes . . . in order to avoid any interruption to commerce or to the operation of any carrier

growing out of any dispute between the carrier and the employees thereof.”

3. The avoidance of interrupting commerce in the airline industry also is reflected in

the RLA’s dispute resolution process for what are known as “major disputes,” which are those

involving the creation or modification of collective bargaining agreements. The major dispute

procedures are “virtually endless” and “purposely long and drawn out,” and a union cannot

engage in economic self-help unless and until those procedures have been completed.

Burlington N. R. Co. v. Maint. Of Way Emps., 481 U.S. 429, 444 (1987); Ry. Clerks v. Fla. E.

Coast R. Co., 384 U.S. 238, 246 (1966).

4. The RLA’s major dispute procedures have not been completed here. On the

contrary, Air Serv and Local 1 continue to engage in direct negotiations for a successor collective

bargaining agreement for those employees already represented by Local 1. And those procedures

certainly have not been completed with respect to Air Serv’s non-union employees at ORD, as

they have not even chosen to be represented for collective bargaining purposes in the first place.

5. The threatened job action would also violate Section 2, Ninth of the RLA, 45

U.S.C. § 152, Ninth, which provides the exclusive method by which an organization may

become certified as the collective bargaining representative for a group of employees in the

airline industry, and vests jurisdiction over such proceedings with the National Mediation Board

(“NMB”).

6. Local 1 has made it plain that it is seeking to represent the non-union Air Serv


3

employees at ORD. Rather than do so through Section 2, Ninth, however, Local 1 has instead

proposed, as part of its collective bargaining negotiations for the unionized employees, a

“Recognition Process Agreement” that would provide a path to Local 1 representation of the

unrepresented employees. As is its right, Air Serv has declined Local 1’s proposal.

7. A carrier has no statutory obligation to deal with an organization with respect to

the employees’ rates of pay, rules, and working conditions unless it has been certified to

represent those employees. Although Local 1 was free to request that Air Serv agree to a process

that could result in voluntary recognition of Local 1 as the representative of the non-union

employees, it is not permitted to strike to compel Air Serv to do so. Neither Local 1 nor the Air

Serv employees at ORD may engage in economic warfare in support of Local 1’s efforts to

obtain representation.

8. Thus, the threatened job action runs directly counter to the principle of avoiding

interruptions to commerce, and violates the RLA, regardless of whether its purpose is to force

changes in the rates of pay, rules, and working conditions of the Air Serv employees, to compel

union recognition of the unrepresented employees, or both.

9. Air Serv performs vital and necessary functions for several airlines at ORD, most

notably United Airlines (“United”), the largest carrier operating at that airport. Thus, not only

would the threatened job action put Air Serv’s own operations at risk, it would, if successful,

have the effect of significantly disrupting United’s operations at ORD and elsewhere.

10. Because the threatened job action would be directly at odds with specific

provisions of the RLA, and because substantial and irreparable harm would result to Air Serv,

United, and the flying public if such an action were permitted to occur, the Court should grant

the preliminary and permanent injunctive relief requested herein.


4

Jurisdiction and Venue

11. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, as this

case arises under the laws of the United States, specifically the RLA. Jurisdiction also is

appropriate under 28 U.S.C. § 1337, as the RLA is a law regulating commerce.

12. Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(b) as a

substantial part of the events giving rise to the suit occurred here.

Parties

13. Air Serv, a Georgia corporation with its headquarters in Atlanta, Georgia,

provides aviation-related services to commercial airlines at various airports throughout the

country, including ORD. Air Serv is a “carrier” as that term is defined by the RLA, and is

subject to that statute. 45 U.S.C. § 151, First.

14. Local 1 is an unincorporated labor organization whose headquarters are located at

111 E. Wacker, Suite 1700, Chicago, Illinois 60601. It represents certain employees of Air Serv

at ORD under the terms of a collective bargaining agreement between the parties.

Background

15. Air Serv supports the commercial aviation industry by offering its airline

customers a wide array of services that enable the airlines to serve their consumers in a more

efficient and cost effective manner. Those services, broadly speaking, fall into six categories:

cargo services, aircraft cleaning, passenger services, ramp handling, security, and ground

transportation. Many of the services that Air Serv provides were once conducted by the airlines

themselves. Air Serv has over 9,000 employees, and provides its services at approximately 50

airports throughout the country, including ORD. Air Serv employs roughly 500 employees at

ORD.


5

16. Air Serv has been providing services at ORD since 2006. Air Serv primarily

provides services to United and other carriers affiliated with United such as All Nippon Airways

(“ANA”) and Lufthansa. Air Serv also provides services to other airlines at ORD, including

Qatar Airlines (“Qatar”), and Austrian Airlines (“Austrian”).

17. The functions that Air Serv performs at ORD for United include assisting those

who require wheelchair, electric cart, or other escort assistance throughout the airport; servicing

the potable water on United, ANA and Lufthansa aircraft; assisting passengers in checking in for

their United flights and in checking their luggage; baggage handling assistance for passengers

upon check-in; inventory control for operational equipment used by United ramp workers;

assisting passengers through the security screening process; transmitting documents to and from

United flight crews that are necessary for flight operations; and a variety of security-related

functions, including escorting passengers and crews on international arrivals; verifying that

passengers are boarding the correct aircraft when a single jetbridge is servicing multiple flights;

driving certain passengers from their arrival gate to their connecting gate on the ramp; and

escorting passengers to and from the terminals to a bus located on the ramp.

18. Air Serv also provides aircraft, ramp, and catering security for Qatar and Austrian.

These employees are responsible for maintaining the security of departing international aircraft

prior to the arrival and acceptance of the aircraft by the flight crew; they monitor and maintain

logs of all personnel who gain access to the aircraft; and they scan personal belongings and

secure catering carts and trucks to ensure that no TSA-restricted items are brought on board.

19. The RLA covers the labor-management relations of the railroad and airline

industries. It extends not just to the railroads and airlines themselves, but also to certain

companies that provide services to those entities – what are known as “derivative” carriers.


6

20. Because of its role in the airline industry, Air Serv has been held to be a

derivative carrier subject to the RLA, rather than the National Labor Relations Act (“NLRA”), on

several occasions at various locations.

21. Approximately 200 of Air Serv’s employees at ORD are currently represented by

Local 1. Local 1 represents Air Serv’s wheelchair agents and electric cart drivers assigned to

work at Terminal 2 or Terminal 5 at ORD. The most recent collective bargaining agreement

(“CBA”) between Local 1 and Air Serv became effective in June 2013, and had a three-year

term.

22. The remaining Air Serv employees at ORD are not currently represented by Local

1 or by any other union, other than a group of approximately 30 skycaps represented by the

International Association of Machinists.

The November 2016 Strike Threat by Local 1

23. During the summer of 2016, Air Serv and Local 1 began negotiating a new CBA.

In addition to addressing the wages and working conditions of the employees it already

represented, Local 1’s demands during negotiations also related to the representation of the non-

union Air Serv employees at ORD.

24. Specifically, despite reaching agreement on all material terms relating to the

unionized employees, Local 1 has insisted on the inclusion in any new CBA of a side letter that

would include a process by which it could become the representative of the currently non-union

employees at ORD (the “Recognition Process Agreement”). Under the Recognition Process

Agreement proposed by Local 1, Air Serv would remain neutral in any effort by Local 1 to

organize the non-union employees, and would be required to recognize Local 1 as the

representative of those employees upon a showing of majority support through presentation of


7

authorization cards or petitions signed by the employees.

25. Although Air Serv indicated that it was willing to entertain the idea of a

Recognition Process Agreement, the parties were unable to reach agreement on its terms. In all

subsequent discussions with Local 1, the union’s position has been that the sole remaining issue

is the Recognition Process Agreement.

26. Local 1 has not initiated representation proceedings for the non-union employees,

either before the NMB pursuant to Section 2, Ninth of the RLA or under the NLRA.

27. On November 17, 2016, Local 1 announced a possible strike involving hundreds

of employees of three airline service providers at ORD, including Air Serv, and highlighted the

potential disruption to ORD during the busy holiday season that could be caused by the strike.

Subsequently, on November 21, 2016, Local 1 announced that the strike would take place on

November 29, 2016.

28. On November 23, 2016, Plaintiff’s Counsel Douglas W. Hall mailed and emailed

a letter to the President of Local 1, Tom Balanoff, informing Mr. Balanoff that a job action by

Air Serv employees at ORD would be unlawful, whether those employees were represented by

Local 1 or by those employees Local 1 seeks to represent, under either the RLA or the NLRA.

On November 25, 2016, Mr. Hall received a letter from Local 1’s counsel, Robert E. Bloch, in

which Mr. Bloch confirmed that the strike would take place as scheduled and would include Air

Serv’s employees, and thus Air Serv’s “request for an ‘unequivocal representation’ that no job

action will occur at O’Hare Airport is accordingly declined.” Mr. Hall responded to Mr. Bloch

with a second letter, dated November 27, 2016, again urging Local 1 not to engage in its

unlawful job action. Despite exerting every reasonable effort to resolve the dispute, Air Serv

continues to face an imminent risk of an illegal strike by its employees.


8

Claim for Relief – Violation of the RLA

29. Regardless of whether the threatened job action is motivated to pressure Air Serv

to change the pay or working conditions of its unionized employees at ORD or to compel Air

Serv to agree to a process by which Local 1 could obtain recognition as the representative of the

non-union Air Serv employees, it is unlawful under the RLA, which applies to Air Serv’s

operations and employees at ORD.

30. The RLA imposes mandatory procedures for resolving major disputes – that is,

those involving negotiation for a new CBA or changes in an existing CBA. Those must be

handled through a series of steps: direct negotiation, NMB-mediated negotiation, a determination

by the NMB that the parties are at impasse, the proffering of arbitration by the NMB, and

expiration of a 30-day “cooling off” period if either or both parties declines arbitration. 45

U.S.C. §§ 152, 156, 160.

31. The RLA prohibits strikes or other uses of economic force in a major dispute prior

to the full exhaustion of the Act’s mandatory negotiation, mediation, and arbitration procedures.

Those procedures have not been exhausted here, and thus there is no right for employees to strike

over changes in rates of pay, rules, or working conditions under these circumstances.

32. Likewise, there is no right under the RLA for a union or employees to strike in

support of a position in a representation dispute – i.e., a dispute over whether and by whom

employees are represented for collective bargaining. Such disputes fall within the exclusive

jurisdiction of the NMB, and economic self-help in support of a union’s position in a

representation dispute violates RLA Section 2, Ninth. Moreover, instituting a job action in the

context of a representation dispute contravenes the Section 2, First duty “to settle all disputes . . .

in order to avoid any interruption to commerce or to the operation of any carrier growing out of


9

any dispute between the carrier and the employees thereof.” 45 U.S.C. § 152, First.

33. The strike threatened by Local 1 implicates a representation dispute under Section

2, Ninth because it is attempting to use economic force to obtain Air Serv’s agreement to a

process by which Local 1 might obtain representation rights over the non-union employees.

34. Under the traditional test for injunctive relief, the moving party must show (a) that

it will suffer irreparable injury absent an injunction; (b) that granting injunctive relief will not

result in even greater harm to the nonmoving party; and (c) the public interest favors injunctive

relief. However, the Seventh Circuit has held that a party need not make the customary showing

of irreparable injury in order to obtain injunctive relief under the RLA. In the present case,

preliminary and permanent injunction against the threatened job action is warranted, whether or

not a showing of irreparable injury is mandated.

35. Air Serv will be irreparably harmed absent the issuance of the requested relief.

The job action would severely disrupt its operations, and thus those of its airline customers,

including United. That, in turn, could result in cancellations and delays of flights at ORD, thus

stranding or inconveniencing the flying public, and otherwise detrimentally affecting travel to

and from ORD. This would cause irreparable harm to Air Serv’s reputation and goodwill with its

customers.

36. As to each item of relief sought herein, greater injury will be inflicted upon Air

Serv, its airline customers, and the public if such relief is denied than will be inflicted upon

Local 1 by the granting thereof. Local 1 will suffer no injury if an injunction is issued, inasmuch

as it merely will be required to comply with the law.

37. The injunction also would foster the public interest, as it would prevent a

significant interruption to airline operations at ORD.


10

WHEREFORE, Plaintiff prays that this Court grant the following relief:

1. Issue a Declaratory Judgment that the Defendant’s actions complained of herein

are unlawful.

2. Issue a preliminary injunction to be made permanent on final judgment:

A. Restraining and enjoining the Defendant, its officers, agents, employees,

and members, and all persons acting in concert or participation with them, from in any manner or

by any means directing, calling, causing, authorizing, inducing, instigating, conducting,

continuing, encouraging, or engaging in any primary strike, sympathy strike, secondary strike,

work stoppage, picketing, sick-out, slow-down, work-to-rule campaign, or other concerted action

which is intended to disrupt or interfere with the normal operations of Air Serv or any of its

customers in violation of the RLA.

B. Requiring the Defendant to issue such notices and to take such steps as

shall be necessary and appropriate to carry into effect the substance and intent of the preceding

paragraph, including but not limited to the requirement that the Defendant (i) publicly withdraw

and rescind any orders, directions, requests, or suggestions to Air Serv’s employees to do any of

the acts specified in the preceding paragraph, and (ii) affirmatively direct and advise Air Serv’s

ORD-based employees, by written notice, to refrain from doing any such acts and to post such

notice on bulletin boards, computer forums and websites, and at such other places that are

reasonably likely to be viewed by Air Serv’s ORD-based employees.

3. Grant Plaintiff such other and further relief as is just and proper, including costs

and attorneys’ fees.


11

Dated: November 28, 2016 Respectfully submitted,

/s/ Lawrence C. DiNardo Lawrence C. DiNardo (IL Bar No. 6294291) [email protected] Brandon L. Dixon (IL Bar No. 6308887) [email protected] JONES DAY 77 West Wacker Dr. Chicago, IL 60601 Telephone: (312) 782-3939 Facsimile: (312) 782-8585

Douglas W. Hall (DC Bar No. 430406) (pro hac vice application pending) JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001 Telephone: (202) 879-3939 Facsimile: (202) 626-1700 [email protected]

ATTORNEYS FOR PLAINTIFF AIR SERV CORPORATION


13

CERTIFICATE OF SERVICE

I hereby certify that on November 28, 2016 I caused the foregoing Plaintiff’s Verified

Complaint for Injunctive and Declaratory Relief to be filed electronically, and that notice of this

filing was served by operation of the Court’s ECF filing system, email, and U.S. Mail on counsel

for Defendant as follows:

Robert E. Bloch Josiah Groff Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich 8 South Michigan Avenue, 19th Floor Chicago, IL 60503 [email protected] [email protected]

/s/ Brandon L. Dixon Brandon L. Dixon


in the united states district court for the ......chicago o’hare international airport...

Documents