Atlas Air, Inc. v. Air Line Pilots Ass'n ( 2000 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 2, 2000 Decided November 21, 2000
No. 99-7223
Atlas Air, Inc.,
Appellee/Cross-Appellant
v.
Air Line Pilots Association,
Appellant/Cross-Appellee
Consolidated with
99-7243
Appeals from the United States District Court
for the District of Columbia
(No. 99cv01100)
Marcus C. Migliore argued the cause for appellant/cross-
appellee. With him on the briefs were Jerry D. Anker and
Jonathan A. Cohen. Marta Wagner entered an appearance.
Ronald B. Natalie argued the cause for appellee/cross-
appellant. With him on the briefs was Douglas W. Hall.
Before: Ginsburg, Sentelle and Henderson, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: The cockpit crewmembers em-
ployed by Appellee Atlas Air, Inc. elected to unionize, where-
upon Atlas Air immediately terminated their participation in
its profit-sharing plan. Atlas sought a declaratory judgment
that its action was a legal modification of status quo employ-
ment conditions under the Railway Labor Act (RLA), 45
U.S.C. s 151 et seq., and that Atlas was free to make further
status quo changes pending the onset of collective bargaining.
The Air Line Pilots Association, International (ALPA) filed a
cross-claim charging that Atlas Air's maintenance and execu-
tion of a discriminatory anti-union policy violates RLA Sec-
tion 2, Third and Fourth. The district court granted sum-
mary judgment for Atlas Air on the grounds that the RLA
does not require carriers to maintain status quo wages, work
rules, or conditions of employment. See Atlas Air, Inc. v.
ALPA, 69 F. Supp. 2d 155, 159 (D.D.C. 1999). The court
further held that it lacked jurisdiction to hear Atlas's second
claim because it was insufficiently concrete. See id. at 164.
ALPA and Atlas each appeal. Because the RLA prohibits
carriers from interfering with, coercing, or influencing em-
ployee decisions whether to unionize, we reverse and remand
to the district court for further proceedings.
I. Background
A.
Atlas Air, Inc. (Atlas) is a cargo airline. Of Atlas's approxi-
mately 1,100 employees, about half are cockpit crewmembers
(pilots and flight engineers). In June 1994, Atlas announced
a new compensation package which included profit-sharing.
Under this plan, "eligible employees" would receive semi-
annual payments based upon the company's profits. To
ensure that employees would receive additional income under
the plan, Atlas set a minimum guaranteed payment of seven
percent of annual pay. Under the plan, the definition of
"eligible employee" excludes "those who are subject to a
collective bargaining agreement or who have been certified by
the National Mediation Board or any such other regulatory
agency for representation." This provision was publicized to
Atlas employees along with information about the rest of the
plan's terms.
ALPA began efforts to organize cockpit crewmembers at
Atlas Air perhaps as early as 1994. See Atlas, 69 F. Supp. 2d
at 159. These efforts intensified in 1996. On September 30,
1996, Atlas sent a letter to all of its employees providing a
"straightforward explanation of the profit-sharing plan." A
document enclosed with the letter outlined the eligibility rules
and provided sample calculations of likely benefits from the
plan. The document also provided an explanation for the
eligibility rules, noting that the exclusion of unionized employ-
ees is "very common in unionized organizations where the
compensation plans for unrepresented employees are kept
separate from those of unionized employees."
On April 21, 1997, Atlas announced that it was revising the
profit-sharing plan. In particular, for the next three years
Atlas would guarantee eligible employees a minimum profit-
sharing payment of 10 percent of annual pay, irrespective of
profits (20 percent for captains). Atlas's announcement of
the new plan, mailed to all crewmembers, noted that profit
sharing would end "upon certification of a union" and that all
employment rules and compensation provisions, including "ex-
isting and future wages and benefits" would "become subject
to the collective bargaining process," if a union were certified.
ALPA filed its first application for a representation election
for Atlas crewmembers in November 1997. Shortly thereaf-
ter, Atlas distributed a draft Flight Crew Policy Manual that
outlined the profit-sharing eligibility rules. According to the
manual, "profit sharing, including the guaranteed portion,
ceases upon certification of a union." Draft Flight Crew
Policy Manual at 21. The draft manual also included a chart
illustrating the guaranteed minimum payments that employ-
ees could expect so long as they remained eligible for the
profit-sharing plan. At the time, ALPA did not question the
legality of the eligibility provision of Atlas's profit-sharing
plan. ALPA lost the 1997 representation election. It did
not, however, file any objections to the election related to the
profit-sharing plan eligibility requirements or otherwise.
ALPA and the International Brotherhood of Teamsters
each filed for a second election in February 1999. On Febru-
ary 17, Atlas sent a letter to all crewmembers explaining the
potential consequences of unionization. While noting that
employees have the right to choose union representation, it
also stated that Atlas unilaterally could change the conditions
of employment if a union were to be certified. In bold face
type, the letter declared:
One area that will change if a union is certified is profit
sharing. Our Profit Sharing Plan says clearly that em-
ployees who have been certified by the National Media-
tion Board for representation are not eligible for profit-
sharing.... Of course, a union could choose to bargain
for profit sharing in subsequent negotiations, but it could
be years before any resolution is reached.
If a union is certified, you instantly lose your profit
sharing. If anyone promises you that you can keep your
profit-sharing should a union be certified--they're either
seriously mistaken, or they're intentionally misleading
you.
(Emphasis in original.) The letter further noted that "[t]he
loss of profit sharing could have a significant financial impact
on you and your family" and included a chart detailing the
likely impact of the plan's termination on the salaries earned
by employees of varying levels of seniority.
In March, Atlas executives sent additional letters to crew-
members reiterating the consequences of union certification.
According to one of the letters, Atlas wanted to ensure that
crewmembers made "an informed decision about representa-
tion, based on the financial impact that choosing representa-
tion would have on you and your family." "So there is no
misunderstanding," one of the letters explained, "a portion of
your current paycheck will stop being paid if the NMB
[National Mediation Board] certifies a union." The letter
noted that all cockpit crewmembers stood to lose at least 10
percent of their annual pay should they lose eligibility. Given
Atlas Air's substantial profits in recent years, the document
noted the cost of unionization could be much higher.
Despite Atlas's letters, ALPA won the representation elec-
tion held on April 26. Two days later, the NMB certified
ALPA as the collective bargaining representative. Upon the
announcement of the election results, but before the NMB
certification, Atlas terminated the profit-sharing plan for
cockpit crewmembers. The plan's termination reduced cock-
pit crewmembers' annual compensation by over 25 percent.
The profit-sharing plan remained in place for Atlas employees
without union representation. At the time this suit was
instituted, Atlas and ALPA had yet to enter into any contract
negotiations.
B.
On May 5, 1999, Atlas Air filed suit seeking a declaratory
judgment that its enforcement of the profit-sharing plan's
eligibility requirements was lawful under the Railway Labor
Act (RLA), 45 U.S.C. s 151 et seq., and that under the RLA
Atlas "retains the right to make unilateral changes in the
rates of pay, rules and working conditions of its flight deck
crewmembers while it negotiates the terms of an initial
collective bargaining agreement with ALPA." Complaint at
1. ALPA filed a counterclaim asserting that the exclusionary
provisions of the profit-sharing plan constituted unlawful
interference with the right to organize under Section 2, Third
and Fourth of the RLA. See 45 U.S.C. s 152, Third and
Fourth. ALPA also contended that Atlas's request for a
declaratory judgment that Atlas could make additional unilat-
eral changes in working commitments was not ripe for adjudi-
cation or, in the alternative, that ALPA has the right under
the RLA to respond to any such changes with a strike or
other self-help actions. ALPA also moved for a preliminary
injunction alleging that Atlas's "discriminatory conduct" was
per se unlawful under federal labor law. Atlas responded
with a motion to dismiss and ALPA filed a motion for
summary judgment on the counterclaim.
On October 25, 1999, the district court entered summary
judgment on behalf of Atlas, holding that the company did not
violate the RLA by enforcing the eligibility provisions of the
profit-sharing plan after ALPA was certified and before the
start of negotiations. Although Atlas had not itself moved for
summary judgment, the trial court entered summary judg-
ment sua sponte because both parties' submissions made
clear that there were no genuine issues of material fact in the
case. Atlas, 69 F. Supp. 2d at 158. The court held that the
RLA "imposes no duty to maintain the status quo in a case
such as this where a union has been certified, but collective
bargaining negotiations have not commenced and there is no
prior agreement between the parties." See id. at 164.
The court dismissed Atlas's second claim for lack of subject
matter jurisdiction. The court agreed with ALPA that a
declaratory judgment on the lawfulness of future, unspecified
status quo changes under the RLA did not present a justicia-
ble case or controversy. Finally, the court dismissed ALPA's
counterclaim, motion for summary judgment, and motion for
a preliminary injunction as moot in light of its other decisions.
ALPA appealed the court's ruling in favor of Atlas and
Atlas filed a cross-appeal challenging the court's holding that
it lacked subject matter jurisdiction over Atlas's broader
claims.
II. Discussion
This case comes to us on an appeal and cross-appeal from a
motion for summary judgment. Therefore, our review of all
issues raised by either party is de novo. See, e.g., Cone v.
Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (court reviews
cross-motions for summary judgment de novo); Frizelle v.
Slater, 111 F.3d 172, 176 (D.C. Cir. 1997) (grant of summary
judgment reviewed de novo); Shields v. Eli Lilly and Co.,
895 F.2d 1463, 1466 (D.C. Cir. 1990) (same).
A. The Profit-Sharing Plan Exclusion
1. Status Quo Obligations under the RLA
Atlas Air's claim and the district court's judgment are
based on the proposition that the Railway Labor Act imposes
no obligation upon carriers to maintain status quo wages,
rules or working conditions after the certification of a union
but before the onset of collective bargaining. RLA Section 2,
Seventh, for instance, provides:
No carrier, its officers or agents shall change the rates of
pay, rules, or working conditions of its employees, as a
class as embodied in agreements except in the manner
prescribed in such agreements or in section 156 of this
title.
45 U.S.C. s 152, Seventh. RLA Section 6 requires that
employers and employee representatives "shall give at least
thirty days' written notice of an intended change in agree-
ments affecting rates of pay, rules, or working condi-
tions...." Id. s 156.
By their express terms, these so-called "status quo" provi-
sions of the Act only prohibit unilateral changes in wages or
working conditions where there is a preexisting collective
bargaining agreement. See Williams v. Jacksonville Termi-
nal Co., 315 U.S. 386, 402-03 (1942) ("The prohibitions of s 6
against change of wages or conditions pending bargaining and
those of s 2, Seventh, are aimed at preventing changes in
conditions previously fixed by collective bargaining agree-
ments."); Detroit & Toledo Shore Line R.R. Co. v. United
Transp. Union, 396 U.S. 142, 158 (1969) (status quo changes
in working conditions prior to collective bargaining are per-
missible where there is "absolutely no prior history of any
collective bargaining or agreement between the parties on
any matter"). As this Court recognized in International
Ass'n of Machinists & Aerospace Workers, AFL-CIO v.
Trans World Airlines, "no power to enjoin unilateral changes
in working conditions by management flows from Section 6 of
the Act in the absence of pre-existing, in place, collective
bargaining agreements." 839 F.2d 809, 814 (D.C. Cir. 1988).1
Other circuits have reached the same conclusion. See Air-
craft Mechanics Fraternal Ass'n v. Atlantic Coast Airlines,
Inc., 55 F.3d 90, 93 (2d Cir. 1995) (The RLA "simply do[es]
not impose an obligation on the carrier to maintain the status
quo in the absence of an agreement."); Regional Airline
Pilots Ass'n v. Wings West Airlines, Inc., 915 F.2d 1399, 1402
(9th Cir. 1990). Cf. International Ass'n of Machinists and
Aerospace Workers v. Transportes Aereos Mercantiles Pan
Americandos, S.A., 924 F.2d 1005, 1007 (11th Cir. 1991) (RLA
precludes status quo changes once collective bargaining has
begun). But cf. Aircraft Mechanics Fraternal Ass'n v. At-
lantic Coast Airlines, Inc., 55 F.3d 90, 92 (2nd Cir. 1995) ("The
question presented in this lawsuit is whether [certain unilat-
eral changes in conditions of employment] are allowed after
bargaining has commenced ... but before an agreement is
reached. We answer the question in the affirmative.").
On the basis of these decisions the district court below
ruled that the Railway Labor Act "imposes no duty to main-
tain the status quo in a case such as this where a union has
been certified, but collective bargaining negotiations have not
commenced and there is no prior agreement between the
parties." Atlas, 69 F. Supp. 2d at 164. This is no doubt true.
Section 2, Seventh and Section 6 do not require carriers to
maintain status quo working conditions. But, the lack of a
status quo obligation under the RLA does not mean that any
change in the status quo is per se legal. A carrier's action
may violate other rights or obligations fixed by the RLA.
2. RLA Section 2, Third and Fourth
The lack of an enumerated obligation to maintain the status
quo pending the negotiation of a collective bargaining agree-
ment does not absolve an employer from its obligation to
refrain from activities which undermine employees' rights.
__________
1 Other courts have evidenced much less willingness to review
claims under ss 152, Third and Fourth in the post-certification
context. See, e.g., Wightman v. Springfield Terminal Railway Co.,
100 F.3d 228, 235 (1st Cir. 1996).
The RLA bars employers from engaging in discriminatory
actions designed to impede or inhibit employees' exercise of
their right to organize for collective bargaining purposes.
For this reason, "the real question" in this case "is whether
... the carrier has discriminated against its employees be-
cause they have engaged in activities protected by the
RLA...." Railway Labor Executives' Ass'n v. Boston &
Maine Corp., 808 F.2d 150, 157 (1st Cir. 1986).
Section 1a(2) of the Act "forbid[s] any limitation upon
freedom of association among employees or any denial, as a
condition of employment or otherwise, of the rights of em-
ployees to join a labor organization." 45 U.S.C. s 151a(2).
Section 2 of the RLA fleshes out this protection. Section 2,
Third provides that employees may select their representa-
tives "without interference, influence, or coercion" of "any"
kind. Id. s 152, Third. Section 2, Fourth further provides
that:
No carrier, its officers or agents, shall deny or in any
way question the right of its employees to join, organize,
or assist in organizing the labor organization of their
choice, and it shall be unlawful for any carrier to inter-
fere 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....
Id. s 152, Fourth. "These provisions prohibit employers
from interfering with, coercing or influencing the representa-
tional choices of workers and from interfering with the right
of employees to organize in labor unions." ALPA v. Eastern
Air Lines, Inc., 863 F.2d 891, 893 (D.C. Cir. 1988).
In Eastern, the carrier sought to modify its flight schedule
and furlough over 3,000 employees, the majority of whom
were represented by ALPA or other unions. Eastern Air
Lines was in substantial financial difficulty at the time, and
the changes would reduce its monthly payroll expenses by
nearly $7 million. See id. at 893. The unions challenged this
plan alleging, among other things, that it violated Section 2,
Third and Fourth of the RLA. We rejected ALPA's claims
because the carrier had legitimate business motivations inde-
pendent of any effort to discourage employees from exercis-
ing their rights under the RLA, stating that "[w]orkers'
Railway Labor Act rights to unionize are adequately protect-
ed so long as management is limited to taking only measures
that it would have taken in the absence of any anti-union
animus." Id. at 902.
ALPA argues that Eastern is distinguishable from the
present case because the challenged policy did not "impose a
differential impact on union members." Id. at 903. Atlas can
make no such claim about the profit-sharing plan eligibility
requirements or its decision to terminate plan participation
for flight crewmembers. In addition, ALPA contends, East-
ern reaffirms precedent from other circuits that employers
cannot make changes in status quo working conditions that
are anti-union in motivation or effect.
ALPA argues there is a "class of anti-union acts that are
'inherently destructive' of important employee interests, so
that 'no proof of anti-union motivation is needed.' " Eastern,
863 F.3d at 902 (quoting NLRB v. Great Dane Trailers, Inc.,
388 U.S. 26, 34 (1967)). Following the Supreme Court's
teaching in Great Dane, the Sixth Circuit found an exclusion-
ary eligibility requirement for a voluntary retirement savings
and profit-sharing plan to be "inherently destructive" of
employee rights and per se unlawful under the National
Labor Relations Act (NLRA). Kroger Co. v. NLRB, 401 F.2d
682, 686-89 (6th Cir. 1968). The Sixth Circuit held that the
policy "would naturally have some deterring effect on union
membership." Id. at 686. As a result, the policy was deemed
facially invalid; the court required no showing of anti-union
animus. Other courts have reached similar conclusions under
the NLRA. See, e.g., AMF Bowling Co. v. NLRB, 977 F.2d
141, 145 (4th Cir. 1992) (termination of a severance-pay plan
upon an employee becoming a "member of a bargaining unit"
violates the NLRA); Melville Confections, Inc. v. NLRB, 327
F.2d 689, 691-92 (7th Cir. 1964) (exclusion of union-
represented employees from profit-sharing plan is per se
violation of the NLRA). The National Labor Relations Board
also follows this interpretation. See, e.g., E & L Plastics
Corp., 305 N.L.R.B. 1119, 1119-20 (1992); AMF Bowling Co.,
303 N.L.R.B. 167, 170 (1991), enforced in relevant part, 977
F.2d 141, 145 (4th Cir. 1992); Niagara Wires, Inc., 240
N.L.R.B. 1326, 1327-28 (1979).
In Eastern we did not hold the carrier's actions to be
"inherently destructive" because there was no claim that the
policy "impose[d] a differential impact on union members."
Eastern, 863 F.2d at 903. "The vast majority of acts found
'inherently destructive' " have been those, like the actions of
Atlas Air, that "discriminate solely on the basis of union
membership." Id. at 902; see, e.g., NLRB v. Fleetwood
Trailer Co., 389 U.S. 375 (1967) (unjustified failure to rein-
state ex-strikers held unlawful without reference to employ-
er's intent); NLRB v. Erie Resistor Corp., 373 U.S. 221(1963) (grant of superseniority to strike replacements and
workers coming off the strike held inherently destructive); C.
H. Heist Corp. v. NLRB, 657 F.2d 178 (7th Cir. 1981)
(disparate treatment of union officials held to be inherently
destructive); Kroger, 401 F.2d at 602 (action denying union
members access to profit-sharing plan held unlawful without
showing of anti-union animus).
As we noted above, the "inherently destructive" precedents
all arose under the NLRA, not the RLA. While the two laws
are not equivalent, we have interpreted the respective provi-
sions barring undue employer influence of employees as
meaning "pretty much the same thing." US Airways, Inc. v.
NMB, 177 F.3d 985, 991 (D.C. Cir. 1999). Despite the
statutory differences, "carefully drawn analogies from the
federal common labor law developed under the NLRA may be
helpful in deciding cases under the RLA." Trans World
Airlines, Inc. v. Independent Fed'n of Flight Attendants, 489
U.S. 426, 432 (1989); see id. at 432-34 (applying NLRA
precedents to interpret RLA Section 2, Fourth). "While of
course NLRA precedents may not be casually transferred to
the RLA context" given the severe impact of Atlas Air's
actions on its newly unionized employees we see "no reason
why the latter requires us to cast a more jaundiced eye on
efforts to exert economic pressure than the former." East-
ern, 863 F.2d at 909.
Atlas Air adopted a facially discriminatory policy that
penalized employees by terminating their participation in
profit sharing for no other reason than their decision to
unionize. Prior to the election of ALPA as the crewmembers'
bargaining representative, Atlas repeatedly threatened its
employees with a substantial decrease in compensation that
would have a real and material impact on the conditions of
employment. In case there was any confusion about the
magnitude of the loss that would result upon certification of a
union, Atlas distributed documents detailing the amount of
income at stake. Then, upon learning of ALPA's election,
Atlas immediately fulfilled its threat and terminated the
profit-sharing plan before the results had even been certified.
It is difficult to view these actions as anything other than the
sort of "interference, influence, or coercion" explicitly barred
by the RLA.
In reaching this conclusion we need not decide whether
there is a broad class of inherently destructive acts that are
per se illegal under the RLA. That is, even without import-
ing NLRA precedent with full force into the RLA context, we
find instructive the concept that the very nature of actions
against unionized labor by an employer can in and of itself
provide evidence of the animus generating those acts. While
we continue to recognize that the employer may alter status
quo working conditions, so long as no collective bargaining
agreement exists between the parties, where the challenged
modification to the status quo is far from merely formal, and
is in fact the equivalent of a substantial decrease in compen-
sation having a real and material impact on the conditions of
employment, and is justified on no other grounds than union
certification, we may presume that the carrier's actions were
motivated by anti-union animus and are in violation of RLA
Section 2, Third and Fourth. To hold otherwise would allow
a carrier, without legal consequence, to slash to subsistence
levels the wages of those employees who elect to unionize.
Were we to allow such a result, the RLA provisions "prohib-
it[ing] employers from interfering with, coercing or influenc-
ing the representational choices of workers and from interfer-
ing with the right of employees to organize in labor unions"
would no longer be effective. Eastern, 863 F.2d at 893.
While carriers retain the right to make unilateral changes in
status quo working conditions, so long as there is no collective
bargaining agreement, they may not make such changes
which selectively penalize unionized employees so as to inter-
fere with, coerce, or influence their decision to exercise their
rights under the RLA.
3. Statute of Limitations
Atlas posits that ALPA's claim under the RLA is time-
barred and that this provides an alternative ground upon
which to uphold the district court's grant of summary judg-
ment. The statute of limitations for the RLA, borrowed from
section 10(b) of the National Labor Relations Act, 29 U.S.C.
s 160(b), is six months. See West v. Conrail, 481 U.S. 35(1987). According to Atlas, ALPA's claim accrued either
upon the initial imposition of the profit-sharing plan, or no
later than January 1998 when ALPA lost its initial represen-
tative election. In either case, ALPA's claim would be time-
barred.
"A claim normally accrues when the factual and legal
prerequisites for filing a suit are in place." 3M Co. v.
Browner, 17 F.3d 1453, 1460 (D.C. Cir. 1994). Were ALPA's
claim solely based upon the actions taken by Atlas prior to
the 1999 certification election, it would be time-barred. How-
ever, under the NLRA, from which the RLA borrows its
statute of limitations, the maintenance of exclusionary claus-
es in employee benefit plans has been held to constitute a
violation. See, e.g., Kroger Co., 164 N.L.R.B. 362, 363, 376
(1967), enforced in relevant part, 401 F.2d 682 (6th Cir. 1968);
Melville Confections, Inc., 142 N.L.R.B. 1334, 1339 (1963),
enforced, 327 F.2d 689, 690 (7th Cir. 1964) ("The Board found
that the company violated Section 8(a)(1) of the Act by
maintaining and continuing to maintain a profit-sharing
plan ... which required as a condition precedent to partic-
ipation ... that the employee not be represented by a labor
organization for the purposes of collective bargaining." (em-
phasis added and footnote omitted)); id. at 692 ("Nor does
the fact that the company's violation antedated the Section
10(b) period applicable to the instant charge preclude a
finding of a violation which occurred through a continuation of
the proscribed conduct during and within the six-month peri-
od prior to the filing of the charge."). Thus, Atlas Air's
continued reliance upon its exclusionary eligibility policy, and
repeated threats to enforce this policy should the crewmem-
bers exercise their right to unionize, constitutes a continuing
violation under the applicable case law.
Therefore, ALPA's claims are still clearly alive. As the
Supreme Court noted interpreting section 10(b) of the
NLRA:
[W]here occurrences within the six-month limitations pe-
riod in and of themselves may constitute, as a substantive
matter, unfair labor practices.... earlier events may be
utilized to shed light on the true character of matters
occurring within the limitations period....
Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 416 (1960); see
also id. at 416-17 (distinguishing the above from cases in
which "conduct occurring within the limitations period can be
charged to be an unfair labor practice only through reliance
on an earlier unfair labor practice"); International Union,
United Auto., Aerospace and Agric. Implement Workers of
Am. v. NLRB, 363 F.2d 702, 706-07 (D.C. Cir. 1966) (claim
not time-barred where unfair labor practice "started more
than six months prior to the charge" was "carried forward by
more recent actions"). In the case at bar, Atlas committed
violations within the limitations period by, among other
things, repeatedly threatening to terminate profit sharing for
employees that elect to unionize and its immediate severance
of represented unit members from the profit-sharing plan
upon learning that ALPA won the election. Under Local
Lodge No. 1424, this is sufficient to prevent ALPA's claims
from being time-barred.
B. Atlas Air's Cross-Appeal
Atlas cross-appeals the district court's dismissal of its
additional claim for a declaratory judgment that it retained
the right to make additional unilateral changes to salary and
working conditions prior to the ratification of a collective
bargaining agreement. There is no subject matter jurisdic-
tion for this claim.
Under the Declaratory Judgment Act, a dispute "must not
be nebulous or contingent but must have taken on fixed and
final shape." Danville Tobacco Ass'n v. Freeman, 351 F.2d
832, 833-34 (D.C. Cir. 1965) (quoting Public Service Comm'n
v. Wycoff Co., 344 U.S. 237, 244 (1952)); see also Federal
Express Corp. v. ALPA, 67 F.3d 961 (D.C. Cir. 1995) (finding
no concrete legal dispute in airline's suit for declaratory
judgment that unopposed changes in status quo working
conditions were protected under the RLA). That a union
may posture in labor negotiations or otherwise threaten to
respond to future changes is insufficient to create the reason-
able apprehension of litigation necessary for the claim to be
justiciable. See id. at 964-65. Thus the district court cor-
rectly dismissed Atlas's additional claims for lack of subject
matter jurisdiction on the grounds that it "must not speculate
as to future unilateral changes Atlas may wish to make and
whether those changes would be lawful under the RLA."
Atlas, 69 F. Supp. 2d at 164.
III. Conclusion
Atlas Air violated the RLA by dramatically cutting the
take-home pay of its cockpit crewmembers for the sole reason
that they exercised their statutory right to unionize. Such an
action is not protected by the status quo provisions of the
RLA. Consequently, the district court's grant of summary
judgment for Atlas Air is reversed and this case is remanded
for further proceedings consistent with this opinion.
It is so ordered.