Air Line Pilots v. NLRB ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AIR LINE PILOTS ASSOCIATION, 
Petitioner-Cross-Respondent,
Nos. 05-75333
v. 05-76566
NATIONAL LABOR RELATIONS
BOARD,
 N.L.R.B.
No. 9-CC-1660
Respondent-Cross-Petitioner,
OPINION
ABX AIR, INC.,
Intervenor.

On Petition for Review and Cross-Petition for Enforcement
of an Order of the National Labor Relations Board
Argued and Submitted
October 17, 2007—San Francisco, California
Filed May 8, 2008
Before: Jane R. Roth,* Sidney R. Thomas and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Roth
*The Honorable Jane R. Roth, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
5103
5106 AIR LINE PILOTS ASS’N v. NLRB
COUNSEL
Dmitri Iglitzin, Schwerin Campbell Barnard LLP, Seattle,
Washington, and Jerry D. Anker and R. Russell Bailey, Air
Line Pilots Association, International, Washington, D.C., for
the petitioner-cross-respondent.
David Habenstreit and Jason Walta, National Labor Relations
Board, Washington, D.C., for the respondent-cross-petitioner.
Norman A. Quandt, Ford & Harrison LLP, Atlanta, Georgia,
and Charles I. Cohen and Jonathan C. Fritts, Morgan, Lewis
& Bockius LLP, Washington, D.C., for the intervenor.
OPINION
ROTH, Circuit Judge:
The Air Line Pilots Association (ALPA) petitions this
Court to review a final Decision and Order of the National
Labor Relations Board (the Board or NLRB). The NLRB peti-
tions for enforcement of its Order. ABX Air, Inc., the charg-
ing party before the NLRB, intervenes in this appeal as a
matter of right.
The NLRB Complaint against ALPA alleged that, by
attempting to enforce certain provisions of a collective bar-
gaining agreement with DHL Airways, ALPA had committed
unfair labor practices. After a hearing, an Administrative Law
Judge (ALJ) ruled that ALPA had violated the National Labor
Relations Act (NLRA), 29 U.S.C. §§ 151 et seq., and ordered
ALPA to take remedial action. ALPA filed exceptions to the
ALJ’s decision. The NLRB issued a Decision and Order, like-
wise finding that ALPA’s conduct violated the National Labor
Relations Act and adopting the ALJ’s order.
AIR LINE PILOTS ASS’N v. NLRB 5107
We have jurisdiction pursuant to 29 U.S.C. §§ 160(e) and
160(f). For the reasons stated below, we will grant ALPA’s
petition for review and deny the Board’s cross-petition for
enforcement.
FACTUAL AND PROCEDURAL BACKGROUND
ALPA was certified by the National Mediation Board as
the representative of the DHL Airways pilots in 1990, pursu-
ant to the Railway Labor Act (RLA), 45 U.S.C. §§ 151 et seq.
At that time, DHL Airways was a wholly-owned subsidiary
of a holding company that we will refer to as DHL Holdings.
The principal business of the DHL Holdings network is the
rapid pickup, sorting, and carriage on a time-sensitive basis of
documents, small parcels, and other freight.
ALPA is the oldest and largest labor organization in the
United States, representing airline pilots covered by the Rail-
way Labor Act. ALPA’s national membership includes over
62,000 pilots. At the time of the present dispute, ALPA repre-
sented approximately seventeen pilots of Ross Aviation, Inc.
It is undisputed that because the Ross Aviation pilots are cov-
ered by the National Labor Relations Act, ALPA is consid-
ered a “labor organization” within the meaning of the Act.
ALPA and DHL Airways entered into a collective bargain-
ing agreement in 1998. The Scope Clause of that agreement
provides, in part, that “all present and future flying performed
on [DHL Airways’] behalf . . . shall be performed by [DHL
Airways’] pilots” and that “it is [DHL Airways’] intent to
handle permanent increases in volume through the acquisition
of additional airlift capacity rather than subcontracting, and to
use [DHL Airways pilots] to the maximum extent possible.”
DHL Holdings subsequently agreed in a Side Letter Agree-
ment that it and any of its successors would be bound by the
Scope Clause.
5108 AIR LINE PILOTS ASS’N v. NLRB
A. Restructuring of the DHL Entities
The DHL network restructured its U.S. operations in both
March 2001 and July 2003. The March 2001 restructuring
was necessary because a foreign entity (DHL International,
Ltd.) wanted to acquire majority ownership of the DHL Hold-
ings network. U.S. law requires that a minimum of seventy-
five percent of the voting power of a U.S. airline be held by
U.S. citizens, that the president and at least two-thirds of the
board of directors and other managing officers be U.S. citi-
zens, and that the airline be under the “actual control” of U.S.
citizens. 49 U.S.C. §§ 40102(a)(15), 41102. Thus, in March
2001, DHL Holdings transferred the ground operations of
DHL Airways to a new, wholly-owned DHL Holdings subsid-
iary called DHL Worldwide Express, Inc. (DHL Worldwide).
DHL Airways was left with only the assets related to the air
operations. In light of the U.S. ownership restrictions, a
majority of the voting and equity interest in DHL Airways
was sold to a U.S. citizen.
DHL Holdings, DHL Worldwide, and DHL Airways
entered into contractual arrangements with each other that
enabled the air and ground network to be operated just as it
had prior to the restructuring. The DHL Airways air opera-
tions personnel remained employees of DHL Airways and
continued to perform roughly the same work that they had
previously performed.
DHL Holdings sold its remaining shares of DHL Airways
on July 14, 2003. Following the sale, DHL Airways was
wholly-owned by a group of independent investors, one of
whom was its chief executive. The new owners changed DHL
Airways’ name to ASTAR Air Cargo, Inc. On July 14, 2003,
ASTAR and DHL Worldwide entered into a new Aircraft,
Maintenance and Insurance Agreement with respect to the
provision of freight services.
AIR LINE PILOTS ASS’N v. NLRB 5109
Meanwhile, in March 2003, the parent company of DHL
Holdings announced an agreement to merge with Airborne,
Inc. Airborne was similarly engaged in the business of time-
sensitive delivery of documents, small packages, and other
freight. Airborne had its own flying subsidiary, ABX. ABX
pilots are represented by the Teamsters and governed by the
Railway Labor Act. When the merger was completed on
August 15, 2003, ABX became an independent company1 and
Airborne, consisting only of ground operations, became a
wholly-owned subsidiary of DHL Holdings. ABX entered
into its own Aircraft, Maintenance and Insurance Agreement
with Airborne.
The ABX pilots serve more cities, serve different cities, fly
different machinery, and handle considerably more volume
than ASTAR pilots. ABX pilots use a hub system, with Wil-
mington, Ohio, as the primary hub. ASTAR pilots do not have
a regional hub system. The ABX pilots serve over 100 differ-
ent markets, while the ASTAR pilots serve only about thirty-
three. The ABX pilots fly different airplanes than the ASTAR
pilots because the ABX airplanes are specifically configured
for a different type of container (on which ABX holds a
patent) than that used by ASTAR and others in the freight
transportation industry. The loading of the ABX containers
requires a unique conveyer belt system (also covered by an
ABX patent). The ABX pilots typically fly two-man crews,
whereas the ASTAR aircraft require three-man crews. ABX
pilots transport about 8.5 million pounds of cargo a day, while
ASTAR handles only about 900,000 pounds. Finally, ASTAR
pilots have category I certifications, whereas ABX pilots have
category II and III certifications, which enable them to land
under weather conditions with more limited visibility.
1
ABX was separated from Airborne to comply with the U.S. ownership
limitations discussed above.
5110 AIR LINE PILOTS ASS’N v. NLRB
B. ALPA’s Efforts To Enforce the Collective Bargaining
Agreement
On June 16, 2003, prior to completion of the Airborne
merger, ALPA sent DHL Holdings a letter asserting that the
flying generated by the former Airborne operations would be
subject to the scope provisions of the DHL Airways (now
ASTAR) collective bargaining agreement. Representatives
from ALPA and the DHL Holdings network met to discuss
the matter on August 7, 2003. At the conclusion of the meet-
ing, ALPA submitted a grievance against DHL Holdings and
DHL Worldwide, alleging violations of the collective bargain-
ing agreement and requesting expedited arbitration as
required by the agreement.
DHL Holdings then filed an action against ALPA in the
District Court for the Southern District of New York. DHL
Holdings sought a declaratory judgment that the collective
bargaining agreement did not require that ASTAR perform
future flying on behalf of Airborne. In the alternative, DHL
Holdings sought an order that ALPA’s claim over the Air-
borne work was a representation dispute within the exclusive
jurisdiction of the National Mediation Board under the Rail-
way Labor Act. ALPA filed an answer and counterclaim, con-
testing the allegations and requesting that the District Court
compel DHL Holdings to submit the underlying dispute to
arbitration, declare that the collective bargaining agreement
was in full force and effect, and restrain DHL Holdings from
implementing any agreement with ABX pursuant to which
any flying on behalf of DHL Airways or its subsidiaries
would be performed by non-ASTAR pilots.
On September 10, 2003, ABX filed a Charge with the
NLRB against ALPA alleging that, by filing the grievance
and attempting to force DHL Holdings not to do business with
ABX, ALPA had violated the National Labor Relations Act.
The District Court action was stayed pending resolution of
ABX’s Charge.
AIR LINE PILOTS ASS’N v. NLRB 5111
The NLRB issued a formal Complaint against ALPA on
December 10, 2003. The Complaint alleged that ALPA’s fil-
ing of the counterclaim as well as the grievance violated the
secondary boycott provisions of the National Labor Relations
Act. ALPA countered that the NLRB did not have jurisdiction
over the dispute, arguing in part that the present dispute was
a Railway Labor Act dispute and that, under the Supreme
Court’s holding in Brotherhood of Railroad Trainmen v.
Jacksonville Terminal Co., 394 U.S. 369 (1969), the National
Labor Relations Act did not apply; the Railway Labor act did.2
ALPA also argued that it had not violated the secondary boy-
cott provisions of the National Labor Relations Act.
An Administrative Law Judge (ALJ) held a hearing on the
NLRB’s Complaint against ALPA on March 10 and 11, 2004.
In a July 2, 2004, decision, the ALJ found that ALPA had
committed the violations alleged in the Complaint and recom-
2
In Jacksonville Terminal, the Supreme Court considered whether a
state court could enjoin the picketing of a rail terminal facility by railroad
employees. The operator of the terminal, which sought the injunction in
state court, was a corporation jointly owned and controlled by four rail-
road companies. The picketers were employees of one of the railroads.
Jacksonville Terminal, 394 U.S. at 372-75. The unions representing the
employees argued that the state court’s jurisdiction was displaced by the
exclusive jurisdiction of the National Labor Relations Act. Id. at 375. The
Supreme Court disagreed on the ground that the National Labor Relations
Act exempts employees and employers subject to the Railway Labor Act.
Id. at 376. The unions contended that the dispute was covered by the
National Labor Relations Act by virtue of the fact that the unions’ national
membership included a small number of employees who were not subject
to the Railway Labor Act but might be subject to the National Labor Rela-
tions Act. The Court rejected this argument. Id. at 375. Instead, the Court
held, “when the traditional railway labor organizations act on behalf of
employees subject to the Railway Labor Act in a dispute with carriers sub-
ject to the Railway Labor Act, the organizations must be deemed, pro
tanto, exempt from the National Labor Relations Act.” Id. at 376-77. The
Supreme Court concluded that the dispute between the unions and the ter-
minal operator was “a railway labor dispute, pure and simple,” notwith-
standing the fact that the unions represented some non-Railway Labor Act
employees. Id. at 378.
5112 AIR LINE PILOTS ASS’N v. NLRB
mended a remedial order. ALPA filed exceptions to this deci-
sion.
C. The NLRB’s Decision and Order
On August 21, 2005, by a vote of two to one, the NLRB
issued a Decision affirming the rulings, findings, and conclu-
sions of the ALJ and adopting his recommended order. NLRB
Member Liebman dissented.
On review, the NLRB concluded that the ALJ had properly
found that the NLRB had jurisdiction over the dispute. The
NLRB found that, as ALPA conceded, ALPA was a “labor
organization” under the National Labor Relations Act and
therefore subject to its prohibitions, including the secondary
boycott provisions.3 This finding was based on ALPA’s repre-
sentation of the seventeen employees of Ross Aviation, who
were in no way involved in the present dispute but who were
covered by the National Labor Relations Act.
The NLRB found further that DHL Holdings, the object of
ALPA’s alleged coercion, was subject to the National Labor
3
The secondary boycott provisions of the National Labor Relations Act
make it unlawful for a “labor organization”:
“(ii) to threaten, coerce, or restrain any person engaged in com-
merce or in an industry affecting commerce, where in either case
an object thereof is —
(A) forcing or requiring any employer . . . to enter into any agree-
ment which is prohibited by section 8(e);
(B) forcing or requiring any person . . . to cease doing business
with any other person.”
29 U.S.C. § 158(b)(4)(ii). Section 8(e) of the National Labor Relations Act
generally prohibits any agreement between an employer and a labor orga-
nization whereby the employer “ceases or refrains or agrees to cease or
refrain from handling, using, selling, transporting or otherwise dealing in
any of the products of any other employer, or to cease doing business with
any other person.” 29 U.S.C. § 158(e).
AIR LINE PILOTS ASS’N v. NLRB 5113
Relations Act. The NLRB reasoned that “ALPA (an NLRA-
covered labor organization) chose to enmesh DHL (an
NLRA-covered employer) in its dispute with ABX (an RLA
employer).” The NLRB concluded that ALPA’s “extension of
this dispute to an NLRA-covered employer distinguishes this
case from Jacksonville Terminal.” The NLRB found that,
unlike Jacksonville Terminal, the present dispute was not a
“pure” Railway Labor Act dispute.
Responding to dissenting NLRB Member Liebman’s char-
acterization of the case as requiring accommodation of two
statutory regimes — the Railway Labor Act and the National
Labor Relations Act — the NLRB determined that the plain
language of the National Labor Relations Act, which permit-
ted jurisdiction in this case, was the best means of determin-
ing whether the NLRB should exercise jurisdiction. The
NLRB reiterated that ALPA subjected itself to NLRB juris-
diction by representing employees covered by the National
Labor Relations Act. The NLRB found further that enforcing
the National Labor Relations Act’s secondary boycott provi-
sions would not subvert the Railway Labor Act.
The NLRB also concluded that ALPA’s pursuit of its griev-
ance and counterclaim constituted unlawful secondary con-
duct. The NLRB found that the object of ALPA’s conduct
was to require DHL Holdings and its Airborne subsidiary to
cease doing business with ABX. The NLRB considered
whether ALPA’s activity had a lawful work preservation
object but determined that ALPA’s conduct instead had an
impermissible work acquisition object.
Having affirmed the Administrative Law Judge’s holdings
that the NLRB had jurisdiction over the dispute and that
ALPA had violated the National Labor Relations Act, the
Board adopted the ALJ’s recommended remedy. In part, the
Board’s Order requires ALPA to cease and desist from violat-
ing the National Labor Relations Act, withdraw its grievance
and counterclaim, reimburse DHL Holdings for reasonable
5114 AIR LINE PILOTS ASS’N v. NLRB
expenses and legal fees in defending against the grievance
and counterclaim, and post a notice to its members regarding
its remedial actions.
NLRB Member Liebman dissented from the Board’s Deci-
sion and Order on the ground that the dispute should properly
be adjudicated under the Railway Labor Act, not the National
Labor Relations Act. The dissent concluded that the majority
cited no persuasive reason or authority for asserting jurisdic-
tion over the case and that, “at a minimum,” Jacksonville Ter-
minal “strongly counsel[ed] that the Board refrain from
asserting jurisdiction.” The dissent reasoned that the “es-
sence” of the dispute was “between an RLA-covered
employer [ABX] and an RLA-covered union [ALPA], repre-
senting RLA-covered, union-represented employees [the
ASTAR pilots].”
STANDARD OF REVIEW
We uphold an NLRB decision “when substantial evidence
supports its findings of fact and when the agency applies the
law correctly.” Sever v. NLRB, 231 F.3d 1156, 1164 (9th Cir.
2000). Although the Board’s construction of the National
Labor Relations Act is subject to deference, we review its
decision to determine whether the Board erred as a matter of
law or proceeded from an erroneous premise. NLRB v. Int’l
Longshoremen’s Ass’n, 473 U.S. 61, 68, 78 (1985).4
4
Normally, the “Board’s construction of terms in the (the NLRA) that
establish its statutory jurisdiction must be upheld if that construction is
‘reasonably defensible.’ ” Micronesian Telecomm. Corp. v. NLRB, 820
F.2d 1097, 1099-1100 (9th Cir. 1987) (quoting Sure-Tan, Inc. v. NLRB,
467 U.S. 883, 891 (1984)). However, such deference does not apply to the
Board’s interpretation of Jacksonville Terminal. Jacksonville Terminal
accommodates two distinct statutory schemes of labor relations by creat-
ing an exemption from NLRB jurisdiction for primarily RLA disputes.
The applicability of that exemption — unlike interpretations of the NLRA
terms that establish the NLRB’s jurisdiction — is not a subject that Con-
gress has committed to the Board. See Sure-Tan, 467 U.S. at 891.
AIR LINE PILOTS ASS’N v. NLRB 5115
ANALYSIS
[1] “There are two quite different bodies of federal labor
law, the law of the Railway Labor Act for railroad and airline
employees, and the law of the National Labor Relations Act
and the Fair Labor Standards Act for most other employees.”
Pan Am. World Airways, Inc. v. United Bhd. of Carpenters
and Joiners of America, 324 F.2d 217, 220 (9th Cir. 1963).
The threshold issue in this appeal is whether the NLRB had
jurisdiction to hear this dispute under the National Labor
Relations Act.
[2] We conclude that, in determining that it had jurisdiction
over this dispute, the Board misapplied the law of Jackson-
ville Terminal Co., 394 U.S. 369. In Jacksonville Terminal,
the Supreme Court rejected the argument that the National
Labor Relations Board had exclusive jurisdiction over an
action to enjoin a union of railroad employees from picketing
a railway terminal, holding, “[W]hen the traditional railway
labor organizations act on behalf of employees subject to the
Railway Labor Act in a dispute with carriers subject to the
Railway Labor Act, the organizations must be deemed, pro
tanto, exempt from the National Labor Relations Act.” Id. at
376-77. As this Court explained in Pacific Maritime Associa-
tion v. Local 63, International Longshoremen’s and Ware-
housemen’s Union, 198 F.3d 1079, 1082 (9th Cir. 1999), the
fact that the Railway Labor Act already existed when the
National Labor Relations Act was enacted and the plain lan-
guage of the National Labor Relations Act itself “led the
[Supreme] Court to conclude that disputes covered by the
Railway Labor Act remained exempt from the NLRA . . . .”
[3] Jacksonville Terminal therefore requires us to consider
the substance of the dispute in determining whether the
NLRB may exercise jurisdiction. Bhd. of Teamsters and Auto
Truck Drivers Local No. 70 v. Western Pac. R.R. Co., 809
F.2d 607, 610 (9th Cir. 1987). In the decision leading to this
appeal, ABX brought a charge against ALPA, based on
5116 AIR LINE PILOTS ASS’N v. NLRB
ALPA’s underlying dispute with DHL Holdings. ABX’s
charge challenged ALPA’s efforts to promote the interests of
its members, particularly to ensure that the ASTAR pilots
would be able to transport the cargo currently flown by ABX,
in keeping with ALPA’s understanding of the collective bar-
gaining agreement with DHL Airways and the Side Letter
Agreement with DHL Holdings. In other words, the charge
before the NLRB reflected a dispute between a traditional
railway labor organization (ALPA), acting on behalf of
employees subject to the Railway Labor Act (ASTAR pilots),
and a carrier subject to the Railway Labor Act (ABX). See
NLRB v. Denver Bldg. Trades Council, 341 U.S. 675, 688-89
(1951).
[4] The dispute between ABX and ALPA is the primary
dispute in this case, the subject of both the NLRB’s decision
below and the present appeal. However, examining the under-
lying dispute between ALPA and DHL Holdings is instructive
in considering the substance of the primary dispute. The
underlying dispute that gave rise to ABX’s charge reflected
an effort by a traditional railway labor organization (ALPA),
acting on behalf of employees subject to the Railway Labor
Act (ASTAR pilots), to enforce a collective bargaining agree-
ment entered into under the Railway Labor Act. The question
of whether DHL Holdings was still bound by the collective
bargaining agreement and the Side Letter Agreement was one
that the litigation in federal district court was intended to
resolve. DHL Holdings itself filed that lawsuit, invoking juris-
diction under the Railway Labor Act.
In its decision and on appeal, the NLRB has reasoned that
the essence of this dispute is not between entities which are
covered only by the Railway Labor Act and that therefore
Jacksonville Terminal does not foreclose jurisdiction. The
Board distinguished this case on the ground that, whereas
Jacksonville Terminal involved entities that were all subject
to the Railway Labor Act, ALPA chose to embroil DHL
Holdings, a National Labor Relations Act employer, in this
AIR LINE PILOTS ASS’N v. NLRB 5117
case. As such, the Board concludes, this is not a “pure” Rail-
way Labor Act dispute.
[5] Viewing the substance of this dispute, however, the
involvement of DHL Holdings is not sufficient to distinguish
Jacksonville Terminal. It is less the case that ALPA enmeshed
DHL Holdings in this dispute than that ABX interfered in an
existing dispute between ALPA and DHL Holdings — which
ALPA and DHL Holdings were already working to resolve
pursuant to the Railway Labor Act, and which involved Rail-
way Labor Act employees.5 Substantively, both the dispute
between DHL Holdings and ALPA, and the present dispute
between ABX and ALPA in which ALPA “enmeshed” DHL
Holdings, are “pure” Railway Labor Act disputes.
The NLRB justified its exercise of jurisdiction on the
ground that the secondary boycott provisions of the National
Labor Relations Act plainly apply to ALPA. Those provisions
apply to any “labor organization,” defined to include “any
organization of any kind . . . in which employees participate
and which exists for the purpose, in whole or in part, of deal-
ing with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of
work.” 29 U.S.C. § 152(5).6 ALPA stipulated that, at the time
the case was heard, it represented seventeen employees of
Ross Aviation, a National Labor Relations Act employer.
[6] Looking at the nature of this dispute, however, ALPA’s
representation of the Ross Aviation pilots should not prevent
this case from being considered a Railway Labor Act case. In
5
The Railway Labor Act provides its own system of dispute resolution.
45 U.S.C. §§ 151 et seq. The Supreme Court discussed the comprehensive
nature of this system at length in Jacksonville Terminal. 394 U.S. at 377-
78.
6
The National Labor Relations Act exempts from its respective defini-
tions of “employer” and “employee” employers who are subject to the
Railway Labor Act and their employees. 29 U.S.C. §§ 152(2), (3).
5118 AIR LINE PILOTS ASS’N v. NLRB
Jacksonville Terminal, the unions’ membership similarly
included a “small percentage of employees who are not sub-
ject to the Railway Labor Act, and who may be subject to the
National Labor Relations Act.” 394 U.S. at 375.7 None of
ALPA’s National Labor Relations Act employee members are
in any way involved in the present case. This case concerns
ALPA’s efforts to enforce a scope clause regarding only air
transportation work on behalf of Railway Labor Act pilots. As
noted above, ALPA and DHL Holdings were already working
to resolve this dispute, invoking the Railway Labor Act, when
those efforts were cut short by the present NLRB action.
[7] In reasoning that Jacksonville Terminal did not fore-
close its jurisdiction in this case, the Board failed to apply the
law correctly. This is fundamentally a Railway Labor Act dis-
pute and, as such, is “pro tanto, exempt from the National
Labor Relations Act.”
CONCLUSION
[8] Because we conclude that, under the analysis of Jack-
sonville Terminal, the Board did not have jurisdiction over
this Railway Labor Act dispute, we grant ALPA’s petition for
7
In justifying its exercise of jurisdiction in this case, the NLRB cited its
decision finding jurisdiction in Electrical Workers (B.B. McCormick &
Sons), 150 N.L.R.B. 363 (1964). This case preceded Jacksonville Termi-
nal. Furthermore, the issue in B.B. McCormick was whether unions that
represented some Railway Labor Act but primarily National Labor Rela-
tions Act employees, and unions that acted as agents of such unions, were
“labor organizations” within the meaning of the National Labor Relations
Act. The Supreme Court did not consider in Jacksonville Terminal
whether the National Labor Relations Act might apply “where railway
organizations act as agents for, or as joint venturers with, unions subject
to the NLRA; or where railway unions are engaged in a dispute on behalf
of their nonrail employees; or where a rail carrier seeks a remedy against
the conduct of nonrailway employees.” Jacksonville Terminal, 394 U.S. at
377. The Supreme Court made clear, however, that the National Labor
Relations Act does not apply to a “pure and simple” Railway Labor Act
dispute. Id.AIR LINE PILOTS ASS’N v. NLRB 5119
review and set aside the Board’s Order. We deny the Board’s
petition for enforcement. In light of our holding, ALPA’s
motion for leave to file proof of changed circumstances will
be denied as moot.
Petition for review granted. Petition for enforcement
denied. Motion for leave to file proof of changed circum-
stances denied.