In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2291
INTERNATIONAL B ROTHERHOOD OF
T EAMSTERS A IRLINE D IVISION,
Plaintiff-Appellee,
v.
F RONTIER A IRLINES, INC., and
R EPUBLIC A IRWAYS H OLDING, INC.,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-CV-203—Lynn Adelman, Judge.
A RGUED O CTOBER 29, 2010—D ECIDED D ECEMBER 13, 2010
Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.
P OSNER , Circuit Judge. This appeal by the defendant
airlines from the grant of a preliminary injunction to a
labor union presents a novel question under the Rail-
way Labor Act, 45 U.S.C. §§ 151 et seq., which despite its
name also governs labor relations in the airline industry.
2 No. 10-2291
On October 1 of last year, Republic Airways, a holding
company that already owned a number of airlines, added
Frontier Airlines to its collection. Soon afterward it an-
nounced that it was shifting maintenance work on Fron-
tier’s aircraft to Milwaukee—where maintenance is per-
formed by nonunion workers—from Denver, where
Frontier’s maintenance workers (whom we’ll call “me-
chanics,” although some are not) are represented by
the Teamsters Union. The lawfulness of Republic’s
shifting the maintenance work to Milwaukee is not ques-
tioned, but the union contends that its collective bar-
gaining agreement with Frontier determines the rights
of Frontier mechanics affected by the shift.
Republic denies this. It contends that the airlines that
it owns, although separately incorporated, constitute a
“single transportation system” or “single carrier,” within
the meaning of the Railway Labor Act. These are not
statutory terms, but rather glosses on the statute that
guide delineation of the bargaining unit (the unit of
worker representation—a “craft” or “class” in RLA-
speak). “Where a railroad system is composed of
a number of subsidiary corporations, employees have
been in dispute as to whether one vote should be taken
of a craft or class on the whole system or whether
the subsidiary corporations are carriers within the
meaning of the Act whose employees are entitled to
separate representation. The [National Mediation]
Board has ruled generally that where a subsidiary corpora-
tion . . . keeps its own payroll and seniority rosters, it
is a carrier as defined in the Act, and its employees
are entitled to representation separate from other
No. 10-2291 3
carriers who may be connected with the same railroad
system. [But] if the operations of a subsidiary are
jointly managed with operations of other carriers and
the employees have also been merged and are subject
to the direction of a single management, then the larger
unit of management is taken to be the carrier rather
than the individual subsidiary companies.” In re Repre-
sentation of Employees of Donora Southern R.R., 2 N.M.B.
80, 83-84 (1952); see National Mediation Board Representa-
tion Manual § 19.501 (updated through Sept. 17, 2010),
listing eight nonexclusive factors that are “indicia of
a single transportation system,” including combined
routes, centralized labor and personnel operations, and
even standardized uniforms.
Because a single transportation system is treated as a
single employer, with the result that all system
employees who do the same type of job are deemed
members of the same bargaining unit, if Republic’s as-
semblage of airlines constitutes a single transporta-
tion system then all the mechanics employed by
Frontier and represented by the Teamsters Union
are members of a unit composed of all the system’s me-
chanics. In that event the union, because it does not
represent a majority of them, is not authorized to
represent any of them. See 45 U.S.C. § 152 Fourth;
Summit Airlines, Inc. v. Teamsters Local Union No. 295,
628 F.2d 787, 795 (2d Cir. 1980). If on the other hand
Republic is not a single transportation system, Frontier’s
mechanics constitute a separate bargaining unit and the
union is its lawful representative. 45 U.S.C. § 152 Ninth;
see, e.g., In re Applications of International Brotherhood of
4 No. 10-2291
Teamsters & Association of Flight Attendants, 37 N.M.B. 148,
167-68 (2010).
The National Mediation Board, which the Act makes
responsible for resolving representation disputes, had
prior to Frontier’s acquisition by Republic certified the
Teamsters Union to represent Frontier’s mechanics.
Until that certification is rescinded, Republic is for-
bidden to alter their pay, work rules, or working condi-
tions unilaterally, as it did, without precipitating a pro-
tracted negotiation with the Teamsters Union. 45 U.S.C.
§§ 152 Seventh, 156. Republic doesn’t want to go
that route, which anyway may have been unavailable
because, as we’ll see, a representation dispute
is resolved by a different procedure. So the district
court has issued a preliminary injunction forbidding
any unilateral alteration in the pay, work rules, or
working conditions of the Frontier mechanics unless
and until the National Mediation Board, the implementer
of that different procedure, rules that the Teamsters
Union is not their lawful representative.
Disputes over the meaning of a collective bargaining
agreement governed by the Railway Labor Act—“minor
disputes” in RLA jargon—are subject to compulsory
arbitration. Union Pacific R.R. v. Brotherhood of Locomotive
Engineers, 130 S. Ct. 584, 591-93 (2009). All other disputes
(with one exception—critical to this case, as we’re about
to see) must be referred to a bargaining and mediation
process prescribed by the Act, as in section 6, 45 U.S.C.
§ 156 (just the kind of process that Republic doesn’t
want to and might not be allowed to invoke, as we
noted). A federal district court can issue an injunction
No. 10-2291 5
to preserve the status quo (that is, the conditions of
employment on the eve of the action that precipitated
the dispute) until the process is completed. Consolidated
Rail Corp. v. Railway Labor Executives’ Ass’n, 491 U.S. 299,
302-04 (1989); Detroit & Toledo Shore Line R.R. v. United
Transportation Union, 396 U.S. 142, 148-50 (1969); Bur-
lington Northern R.R. v. United Transportation Union, 862
F.2d 1266, 1272 (7th Cir. 1988); Association of Flight Atten-
dants v. Mesa Air Group, Inc., 567 F.3d 1043, 1047 (9th Cir.
2009). Notwithstanding the Norris-LaGuardia Act, 29
U.S.C. §§ 101 et seq., injunctions to compel compliance
with the Railway Labor Act are permissible even when
they enjoin collective action by workers that could not,
consistently with the Norris-LaGuardia Act, be enjoined
in industries not subject to the RLA. Burlington
Northern R.R. v. Brotherhood of Maintenance of Way Em-
ployees, 481 U.S. 429, 445 (1987), and cases cited there;
ABA Section of Labor & Employment Law, The Railway
Labor Act 362-73 (2d ed. 2005 & Supp. 2009). Anyway
the injunction issued by the district court is directed
against the employer, not the union.
The Teamsters Union doesn’t claim that its collective
bargaining agreement with Frontier contains any provi-
sion relating to the union’s right to represent Frontier’s
mechanics if Frontier becomes part of a single transporta-
tion system. Republic’s insistence that Frontier has
become part of such a system, thus enabling Republic
to alter the working conditions set forth in the agree-
ment, has therefore precipitated—one might think—a
major dispute. But it is a dispute over who (if anyone)
is the legitimate representative of a carrier’s workers. A
6 No. 10-2291
representation dispute turns on “whether or by what repre-
sentative employees are represented for purposes of
collective bargaining. In some contexts, representation
disputes also include issues concerning the identity of
a carrier (e.g., one or more companies functioning as
a single carrier) or the scope of a craft or class for bar-
gaining.” ABA Section of Labor & Employment Law,
supra, at 18. (We have italicized the passage that bears
directly on this case.) Section 2 Ninth of the Railway
Labor Act, 45 U.S.C. § 152 Ninth, has been interpreted
to give the National Mediation Board exclusive jurisdic-
tion to resolve such disputes. General Committee of Ad-
justment v. Missouri-Kansas-Texas R.R., 320 U.S. 323, 336
(1943); United Transportation Union v. Gateway Western
Ry., 78 F.3d 1208, 1213 (7th Cir. 1996). That is the same
body that mediates major disputes. Yet representation
disputes are conventionally said to be neither “major”
nor “minor.”
The district judge thought it important that he not
characterize the parties’ dispute as a representation
dispute—though it is one—because some cases say
that a court that grants a preliminary injunction in a
representation dispute resolves the dispute and by
doing so tramples on the National Mediation Board’s
turf. United Transportation Union v. Gateway Western
Ry., supra, 78 F.3d at 1213-14; International Brotherhood of
Teamsters v. Texas Int’l Airlines, Inc., 717 F.2d 157,
161 (5th Cir. 1983). That could be said in any case in
which a preliminary injunction is issued—the injunction
“resolves” the dispute, at least provisionally. The state-
ments in these cases cannot be considered authoritative.
No. 10-2291 7
The Supreme Court, consistent with its ruling that
district courts can issue injunctions to enforce the
Railway Labor Act—not, however, to resolve with
finality any actual labor disputes but merely to main-
tain the status quo ante until they are finally resolved
by the mechanisms ordained by the Act—has declared
that preliminary injunctions may be issued in minor
disputes despite the exclusive jurisdiction over such
disputes of the National Railroad Adjustment Board or
its counterpart in the airline industry—the system
boards of adjustment. Brotherhood of Locomotive Engineers
v. Missouri-Kansas-Texas R.R., 363 U.S. 528, 530-35
(1960); National Railway Labor Conference v. International
Ass’n of Machinists & Aerospace Workers, 830 F.2d 741, 749-
50 (7th Cir. 1987). The exclusive jurisdiction of
the National Mediation Board over representation dis-
putes is parallel. Since courts can grant preliminary
injunctions in minor disputes, they can grant preliminary
injunctions in representation disputes, which anyway as
in this case are sometimes a species of major dispute.
The confusion over injunctive remedies in Railway
Labor Act cases arises from failure to recognize that the
distinction among types of dispute relates solely to
the different nonjudicial mechanisms that the Act
creates for the different types: compulsory arbitration
for minor disputes, bargaining and mediation for most
major disputes, and resolution by the National Media-
tion Board for representation disputes, whether major
or minor in character, or neither—as in a dispute
between two unions, the employer being neutral and
the collective bargaining agreement silent, over which
8 No. 10-2291
union is authorized to represent a particular group of
employees. Compliance with any of the prescribed mecha-
nisms can be enforced by an injunction; nothing in the
Railway Labor Act or the Norris-LaGuardia Act stands
in the way. The parties agree that if this is a representa-
tion dispute, and we hold that it is, it should be resolved
as a representation dispute, which is to say resolved by
the National Mediation Board. But that has nothing to
do with the appropriateness of injunctive relief.
The injunction issued in this case does have a problem,
but not a problem having to do with the district court’s
authority—rather a problem with how that court has
exercised its equitable discretion. The injunction main-
tains, for the indefinite future (it has no expiration
date, and is “preliminary” in name only), what may well
be an illegal status quo—a union supported by only
a fourth of the bargaining unit yet acting as the
bargaining representative of that minority. We are
given no reason to think that a majority of Republic’s
mechanics want to be represented by the Teamsters
Union, and if not they may be placed at a disadvantage
if Republic is required to extend special privileges to
Frontier’s mechanics.
The parties, accepting the interpretation of 45 U.S.C.
§ 152 Ninth in Railway Labor Executives’ Ass’n v. National
Mediation Board, 29 F.3d 655, 665-69 (D.C. Cir. 1994)
(en banc), agree that only a union (or an employee
having authorization cards from at least thirty-five
percent of the employees in the craft or class, see National
Mediation Board Representation Manual, supra, § 19.602) can
No. 10-2291 9
ask the National Mediation Board to resolve a dispute
over who (if anyone, see Air Line Pilots Ass’n, Int’l v. Texas
Int’l Airlines, Inc., 656 F.2d 16, 24 (2d Cir. 1981)—Republic
says no one in this case) represents a unit of workers.
An employer cannot invoke the Board’s jurisdiction.
The Teamsters Union has of course no incentive to ask
the Board to act—it doesn’t want to lose its status as
the bargaining representative for Frontier’s mechanics.
The other Republic mechanics are not represented by
a union, and as far as anyone knows no other union,
or other employee group, or individual employee,
wants to represent them and therefore has an incentive
to ask the Board to determine whether the Teamsters
Union is an illegal representative of mechanics who are
employed by a subsidiary of Republic, as Frontier’s
mechanics now are if Republic’s subsidiaries constitute
a single transportation system.
The union is unable to justify the standoff produced
by the injunction in its present form. According to the
union there is no mechanism, operable in this case, for
placing the question whether it’s the legal representa-
tive of the Frontier mechanics before the agency that
has exclusive jurisdiction to answer it. The National
Mediation Board is that agency, but the injunction
prevents the Board from exercising jurisdiction because
the airline cannot refer the issue to it, the union can
but won’t, and no one else who could seems interested
in doing so.
Fortunately this perverse result can be avoided by the
application of age-old equitable principles. Let the injunc-
10 No. 10-2291
tion be modified to condition its continuance on the
union’s prompt application to the Board for a ruling on
the representation of Frontier’s mechanics: are they
represented by the union, or by no one? If the union
complies with the condition in good faith (no foot drag-
ging), as it can easily do, the injunction will preserve
the status quo, and thus the union’s representative
status, until the Board resolves the dispute.
Neither party disputes the district court’s authority to
enjoin an employer from effectively decertifying a
union, which is the nature of the injunction that the
district court issued in this case, and such an injunction,
like any other injunction, is governed by equitable princi-
ples. As has been said with specific reference to injunc-
tive relief under the Railway Labor Act, “it is the duty of
a court of equity granting injunctive relief to do so upon
conditions that will protect all . . . whose interests the
injunction may affect. Since the power to condition re-
lief is essential to ensure that extraordinary equitable
remedies will not become the engines of injustice, it
would require the clearest legislative direction to justify
the truncation of that power.” Brotherhood of Locomotive
Engineers v. Missouri-Kansas-Texas R.R., supra, 363 U.S.
at 532 (citation omitted). What could be less equitable
than to allow the union, having obtained an injunction
in its favor, to foreclose by deliberate inaction a deter-
mination of whether it remains the legally authorized
bargaining representative of the Frontier mechanics?
The judgment of the district court is vacated and the
court directed to reissue the injunction, as modified in
No. 10-2291 11
accordance with this opinion, promptly so that the
dispute can be placed on course to a rapid resolution.
V ACATED AND R EMANDED,
WITH D IRECTIONS.
12-13-10