Int'l Bro of Teamsters v. Allegiant Air, LLC , 788 F.3d 1080 ( 2015 )


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  •                        FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    INTERNATIONAL BROTHERHOOD OF                          No. 14-16465
    TEAMSTERS, AIRLINES DIVISION;
    AIRLINE PROFESSIONALS                                   D.C. No.
    ASSOCIATION OF THE IBT, LOCAL                        2:14-cv-00043-
    UNION NO. 1224,                                        APG-GWF
    Plaintiffs-Appellees,
    v.                                OPINION
    ALLEGIANT AIR, LLC; ALLEGIANT
    TRAVEL COMPANY,
    Defendants-Appellants.
    Appeal from the United States District Court
    for the District of Nevada
    Andrew P. Gordon, District Judge, Presiding
    Argued and Submitted
    February 2, 2015—San Francisco, California
    Filed June 8, 2015
    Before: Richard C. Tallman and Johnnie B. Rawlinson,
    Circuit Judges, and Stephen Joseph Murphy, III, District
    Judge.*
    Opinion by Judge Murphy
    *
    The Honorable Stephen Joseph Murphy, III, District Judge for the U.S.
    District Court for the Eastern District of Michigan, sitting by designation.
    2       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    SUMMARY**
    Labor Law
    The panel vacated the district court’s preliminary
    injunction in a union’s action against an airline under the
    Railway Labor Act.
    The district court preliminarily enjoined the airline from
    making policy changes to pilot work rules during the
    negotiation of a new contract between the union and the
    airline following the National Mediation Board’s certification
    of the union as the pilots’ representative.
    The panel held that the district court had jurisdiction
    because the case did not raise a representation dispute, and
    there was no jurisdictional bar preventing the court, rather
    than the Board, from determining whether a previous
    advocacy group was a representative within the meaning of
    the RLA. The panel concluded that it was not reviewing the
    Board’s finding that the pilots were previously unrepresented.
    In addition, the airline had waived the argument that the
    Board’s finding was entitled to preclusive effect.
    The panel concluded that the Allegiant Air Pilots
    Advocacy Group, which had negotiated and agreed to the
    work rules prior to the union’s certification as the pilots’
    representative, was not an RLA representative because it
    sought neither Board certification nor voluntary recognition.
    Accordingly, the pilot work rules were not a collective
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR             3
    bargaining agreement under the RLA. The panel held that the
    district court erred in entering an injunction because the RLA
    does not require an airline to maintain the status quo during
    negotiations of an initial labor agreement.
    COUNSEL
    Douglas W. Hall, Ford Harrison LLP, Washington D.C., for
    Defendants-Appellants.
    Edward M. Gleason Jr., Law Office of Edward Gleason,
    PLLC, Washington, D.C.; Michael A. Urban and Nathan R.
    Ring (argued), The Urban Law Firm, Las Vegas, Nevada;
    James Petroff, Barkan Meizlish LLP, Columbus, Ohio, for
    Plaintiffs-Appellees.
    OPINION
    MURPHY, District Judge:
    I. INTRODUCTION
    Allegiant Air is an airline operating from Las Vegas,
    Nevada. In 2004, Allegiant’s employees organized a pilot
    advocacy group (the Allegiant Air Pilots Advocacy Group, or
    “AAPAG”) and elected representatives to bargain with the
    airline on their behalf. Over the next few years, AAPAG and
    Allegiant negotiated and agreed to several different Pilot
    Work Rules, detailed documents that outlined Allegiant’s
    policies and work conditions. In 2012, some pilots decided
    they wanted to unionize. The Teamsters expressed interest in
    representing the pilots and petitioned the National Mediation
    4      INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    Board (the Board) to certify them as the pilots’ bargaining
    representative under the Railway Labor Act (RLA). The
    Board conducted a secret ballot of the pilots and then certified
    the Teamsters as the pilots’ RLA representative. Shortly
    thereafter, Allegiant changed several policies contained in the
    Work Rules without consulting the Teamsters.
    The Teamsters brought suit. They sought a preliminary
    injunction that would prevent Allegiant from making any
    policy changes to the Pilot Work Rules while they negotiated
    a new contract. The Teamsters contend the AAPAG, its
    predecessor negotiating on behalf of the pilots, was a
    representative under the RLA. They argue that the Pilot Work
    Rules were a collective bargaining agreement. And they
    assert here that the district court properly enjoined Allegiant
    from altering the agreement until the parties complete the
    RLA mandated mediation process.
    Allegiant disagrees. It contends the district court did not
    have jurisdiction to determine whether AAPAG was an RLA
    representative when it executed the Work Rules. It argues that
    even if the district court did have jurisdiction, AAPAG was
    not an RLA representative, but merely an informal employee
    advocacy group. It contends that the Work Rules are not a
    collective bargaining agreement, the policy modifications are
    at most differing interpretations of those Work Rules, and an
    injunction is inappropriate because the Teamsters have not
    demonstrated irreparable harm.
    The district court found that it had jurisdiction over the
    dispute. It determined the AAPAG was an RLA
    representative, reasoning that the employees had elected
    AAPAG for the purpose of negotiating terms of employment
    with the carrier. It therefore enjoined Allegiant from making
    INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR             5
    several policy changes until the parties had completed RLA
    mandated mediation. And it ordered the parties to create a
    Board of Adjustment to arbitrate the remaining issues.
    We have jurisdiction under 
    28 U.S.C. § 1292
    (a)(1). We
    conclude that AAPAG was not an RLA representative. We
    therefore vacate the injunction and remand the case.
    II. BACKGROUND
    In 2004, Allegiant grew tired of having “50-odd pilots
    constantly trumping through the office” with individual
    complaints. To solve the problem, management approached
    several senior pilots and asked them to form an organization
    that could channel employee grievances and provide pilot
    input. The senior pilots talked with their colleagues and a
    short while later thirty-five pilots met at PT’s Pub in Las
    Vegas to create AAPAG.
    Over the next few years, Allegiant grew rapidly, doubling
    the number of pilots and expanding its flights to new
    destinations. AAPAG grew with the company. The pilots
    annually elected officers who helped interview applicants,
    advocated for employees during grievance disputes, and
    discussed pay and work conditions with Allegiant’s
    management.
    AAPAG’s stated mission was to communicate pilot
    concerns to management, and it described itself as a
    “consulting agency on issues relating to the pilot group.” For
    several years, pilots and management enjoyed a good
    relationship. Allegiant allowed AAPAG to give Power Point
    presentations to new hires. When pilots had pay or leave
    problems, AAPAG officers advocated on the pilots’ behalf,
    6       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    and Allegiant always resolved the issue in a way that “was
    satisfactory for all involved.”
    AAPAG and Allegiant also negotiated Pilot Work Rules,
    documents articulating company policies on leave, pay,
    scheduling, and other issues that mattered to the parties. For
    example, AAPAG negotiators and management agreed that
    the pilots would get an additional five dollars per hour in
    exchange for        less guaranteed flight time. Before
    implementing the policy change, AAPAG conducted a secret
    ballot of the pilots, who “overwhelmingly approved” the
    change. During that period, Allegiant adhered to the Work
    Rules; when a question arose about the meaning or
    application of the Work Rules, Allegiant and AAPAG worked
    together to find a solution, and Allegiant typically made the
    aggrieved party whole.
    The parties negotiated the most recent Work Rules in
    2010.1 The forty-nine page document was signed by both
    AAPAG’s President and Allegiant’s Vice President of Flight
    Operations. In the introduction, it states that “[t]he Flight
    Operations Department of Allegiant Air will develop, refine,
    and clarify changes to the Pilot Work Rules, Benefits and
    Compensation in coordination with the Allegiant Air Pilot’s
    Advocacy Group (AAPAG), the elected and representative
    body of the pilot group of Allegiant Air.” It also states
    Allegiant would “meet with AAPAG to consider revisions
    and updates to the Work Rules” and that they would
    “coordinate with AAPAG” to resolve questions about the
    Work Rules application. Bold lettering at the bottom of the
    page reads: “Nothing contained in these Work Rules should
    1
    One witness testified that the final Work Rules were actually
    implemented in 2011, and that the 2010 date on the document is an error.
    INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR                 7
    be interpreted as giving rise to a contract or a promise of
    employment for any period of time.”
    In 2012, many pilots wanted to unionize with the
    Teamsters. AAPAG’s officers agreed and campaigned on the
    Teamsters’ behalf. Some AAPAG officers joined the
    Teamsters’ Organizing Committee. AAPAG’s president
    provided the pilots with a brochure stating they were
    operating “without a current contract,” that the pilots needed
    more than “a legal version of our 40 page work rules,” and
    outlined the benefits of Teamsters representation. During the
    unionization campaign, AAPAG took the position that the
    pilots did not have a legally binding contract with the
    company. And when the Teamsters petitioned the Board to
    certify it as the pilots’ RLA representative, it listed the pilots
    as presently unrepresented. None of AAPAG’s officers
    serving on the Teamsters’ Organizing Committee contested
    that categorization.
    The Board held an election among the pilots, who voted
    to unionize with the Teamsters. The Board then certified the
    Teamsters as the pilots’ RLA bargaining representative. Two
    weeks after the certification, the Teamsters notified Allegiant
    that it intended to negotiate a new collective bargaining
    agreement. The notice stated that the Teamsters expected
    Allegiant not to unilaterally change any of the conditions in
    the Work Rules while they negotiated a new contract. Shortly
    thereafter, Allegiant changed its policies regarding pilots who
    lose their medical certificate due to being sick or hurt,
    eliminated pay protection for employees engaged in
    collective bargaining, altered how many days new parents
    could take off to spend with their children, and created a new
    scheduling system. The Teamsters then filed suit, seeking to
    8      INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    enjoin the changes while the parties negotiated a collective
    bargaining agreement.
    III. OVERVIEW OF RAILWAY LABOR ACT
    Congress passed the RLA to expediently help railroads
    and their employees resolve conflicts, before disagreements
    turned into strikes that would paralyze interstate commerce.
    See Int’l Bhd. of Teamsters v. N. Am. Airlines, 
    518 F.3d 1052
    ,
    1055–56 (9th Cir. 2008). In 1936, Congress amended the
    RLA to include coverage of air carriers, 
    45 U.S.C. § 181
    , but
    otherwise, the same structure of the Act remained.
    Under the Act, employees may designate a representative
    to negotiate agreements concerning rates of pay, rules, and
    working conditions. When a conflict arises “among a carrier’s
    employees as to who are the representatives of such
    employees,” the Board has the sole power to determine when
    a group or person is a valid representative. 
    Id.
     § 152, Ninth.
    The Board is authorized “to take a secret ballot of the
    employees,” and may take steps to “insure the choice of
    representatives by the employees without interference,
    influence, or coercion exercised by the carrier.” Id. After the
    Board determines the employees’ preferred representative,
    the Board certifies the representative, and “the carrier shall
    treat with the representative so certified.” Id.
    Judicial review of representation disputes is extremely
    circumscribed. Federal courts may not review the Board’s
    certification decision or independently determine whether a
    group represents employees. Switchmen’s Union of N. Am. v.
    Nat’l Mediation Bd., 
    320 U.S. 297
    , 300 (1943). Furthermore,
    the Board’s “decisions regarding its methods of investigation,
    balloting procedures, and findings regarding employer
    INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR              9
    interference, influence, or coercion, have been largely
    unreviewable.” Horizon Air Indus. Inc. v. Nat’l Mediation
    Bd., 
    232 F.3d 1126
    , 1132 (9th Cir. 2000). Courts have limited
    jurisdiction to ensure the Board acts constitutionally and
    within the scope of its statutory authority. 
    Id.
     Board factual
    findings have preclusive effect under traditional principles of
    estoppel. Astoria Fed. Sav. & Loan Ass’n v. Solimino,
    
    501 U.S. 104
    , 107 (1991).
    Once a representative and a carrier have reached an
    agreement concerning rates of pay, rules, and working
    conditions, the Act prescribes specific steps parties must take
    to change the agreement. A party that wants to change an
    agreement must give advance written notice. 
    45 U.S.C. § 156
    .
    Parties are required to meet in a good faith attempt to
    voluntarily settle any disagreement. 
    Id.
     § 152, Second. If
    conferring fails, either party may request the services of the
    Board to mediate a dispute. Id. § 155, First. And, if the
    mediation fails, the parties may consent to binding
    arbitration. Id. § 157. Finally, if mediation fails and the
    parties reject arbitration, the RLA imposes a thirty-day
    cooling off period. Id. § 155, First. Only then can a carrier
    change an agreement and a labor organization lead its
    employees out on strike. During the period of negotiation,
    neither party may unilaterally change employee working
    conditions. Id. § 156; see generally Int’l Bhd. of Teamsters,
    518 F.3d at 1056 (citing Detroit & Toledo Shore Line R.R.
    Co. v. United Transp. Union, 
    396 U.S. 142
    , 149 n.14 (1969)).
    A different process exists when parties contest the
    meaning or proper application of a particular provision of an
    agreement. In that case, the RLA requires employees and
    carriers first to exhaust the grievance procedure specified in
    a collective bargaining agreement. 
    45 U.S.C. § 184
    . Next, a
    10     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    representative for an employee and a carrier must meet in
    conference to try to settle the dispute. 
    Id.
     § 152, Second. If
    parties are unable to resolve a disagreement, the dispute is
    subject to binding arbitration before a board of adjustment
    established by the involved airline and labor representative.
    Id. § 184; see Consol. Rail Corp. v. Ry. Labor Exec. Ass’n,
    
    491 U.S. 299
    , 304 n.4 (1989).
    IV. JURISDICTION OF DISTRICT COURT
    We review de novo whether the district court had
    jurisdiction. Horizon Air, 
    232 F.3d at 1128, 1131
    . District
    courts have the power to enjoin a carrier from changing a
    bargaining agreement while the parties complete the process
    mandated by the RLA. Consol. Rail, 
    491 U.S. at 303
    .
    Allegiant argues the district court lacked jurisdiction because
    the case turns in part on whether AAPAG was an RLA
    representative when it agreed to the Work Rules. According
    to Allegiant, only the Board has the power to determine
    whether a group is (or was) a representative under the Act.
    We hold that while the Board has sole power to determine
    labor’s current bargaining agent, there is no jurisdictional bar
    preventing a district court from finding that a previous
    advocacy group was a representative within the meaning of
    the RLA.
    Allegiant also argues that during the Board’s
    investigation, it found the pilots were previously
    unrepresented. Because the Board made that finding during
    the course of its investigation, Allegiant contends the Board’s
    factual conclusion is unreviewable. We hold that when a
    party is challenging an action taken by the Board—like its
    certification of a labor representative or its efforts to prevent
    employer interference with an election—district court review
    INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR            11
    is limited to ensuring that the Board acted constitutionally
    and within the scope of its statutory authority. But when a
    party brings a claim that does not challenge an action taken
    by the Board, the district court has jurisdiction, even if the
    claim denies the Board’s legal or factual conclusion. And the
    district court should then review the Board’s findings under
    principles of estoppel.
    A. Representation Dispute
    The most important purpose of the RLA was “the
    avoidance of industrial strife, by conference between the
    authorized representatives of employer and employee.” Bhd.
    of Ry. & S.S. Clerks v. Nat’l Mediation Bd., 
    380 U.S. 650
    ,
    658 (1965). An “explosive problem” in its application is how
    to determine what labor organization represented employees.
    Switchmen’s Union, 
    320 U.S. at 303
    . “[W]hether one
    organization or another was the proper representative of a
    particular group of employees was one of the most
    controversial questions in connection with labor organization
    matters.” 
    Id. at 302
     (internal quotation marks omitted).
    Section 152, Ninth, establishes “the machinery for the
    selection of the representatives of employees.” Bhd. of Ry. &
    S.S. Clerks, 
    380 U.S. at 658
    . It provides for a “neutral
    tribunal” that can expediently determine employees’
    bargaining representative and “get the matter settled.”
    Switchmen’s Union, 
    320 U.S. at 303
    . That section provides in
    relevant part:
    If any dispute shall arise among a carrier’s
    employees as to who are the representatives of
    such employees . . . it shall be the duty of the
    Mediation Board, upon request of either party
    12     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    to the dispute, to investigate such dispute and
    to certify to both parties . . . the name or
    names of the individuals or organizations that
    have been designated and authorized to
    represent the employees involved in the
    dispute, and certify the same to the carrier. . . .
    In such an investigation, the Mediation Board
    shall be authorized to take a secret ballot of
    the employees involved, or to utilize any other
    appropriate method of ascertaining the names
    of their duly designated and authorized
    representatives in such manner as shall insure
    the choice of representatives by the employees
    without interference, influence, or coercion
    exercised by the carrier.
    
    45 U.S.C. § 152
    , Ninth. It further states that once the Board
    has investigated the dispute and certified a representative,
    “the carrier shall treat with the representative so certified.” 
    Id.
    The Supreme Court has held that the Board has the sole
    power to certify a group or person as an employee
    representative. Switchmen’s Union, 
    320 U.S. at 300
     (holding
    federal courts do not have jurisdiction to review the Board’s
    certification decision). Courts also lack jurisdiction to provide
    relief that is the functional equivalent of an RLA certification
    like, for instance, entering a declaratory judgment
    determining what group can bargain on the employees’
    behalf. Gen. Comm. of Adjustment v. Mo.-Kan.-Tex. R. Co.,
    
    320 U.S. 323
    , 327 (1943) (holding that the district court
    lacked jurisdiction to find “that the Engineers should be
    declared to be the sole representative of the locomotive
    engineers with the exclusive right to bargain for them”).
    INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR              13
    Furthermore, courts decline to exercise jurisdiction when
    parties bring an otherwise justiciable claim that requires the
    court to examine whether a class of employees are
    represented, and if so, by whom. See United Transp. Union
    v. Gateway W. Ry. Co., 
    78 F.3d 1208
    , 1216 (7th Cir. 1996)
    (holding court lacked jurisdiction to determine if parent
    company’s union also represented subsidiary’s employees).
    Cases on which Allegiant relies similarly either require a
    court to determine the employees’ current representative or to
    compel a carrier to bargain in the face of competing
    representation claims. See Int’l Bhd. of Teamsters v. Tex. Int’l
    Airlines, 
    717 F.2d 157
    , 161 (5th Cir. 1983) (declining
    jurisdiction to enforce a bargaining agreement that would
    “inescapably entail[] the continuance of the Union’s role as
    employee representative”); United Transp. Union v. United
    States, 
    987 F.2d 784
    , 790 (D.C. Cir. 1993) (declining to
    determine which of two unions was the employees’
    bargaining representative).
    Neither party cites any case in which the court determined
    the status of a past advocate rather than adjudicated a present
    dispute about what party represents labor. Our research has
    not revealed any such case. Resolving the issue as one of first
    impression, we find the district court correctly exercised
    jurisdiction. At the outset, we reiterate that federal courts
    have jurisdiction to enjoin changes to the status quo while
    parties complete mediation. The only issue is whether Section
    152, Ninth, precludes that determination here.
    For several reasons, we do not think Section 152, Ninth,
    is applicable. That section gives the Board jurisdiction when
    “any dispute shall arise among a carrier’s employees as to
    who are the representatives of such employees.” 45 U.S.C.
    14     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    § 152, Ninth. Simply put, there is no dispute among the
    employees that the Teamsters are the pilots’ current
    bargaining representative. Indeed, the Board has already
    certified the Teamsters as the bargaining representative and
    no party challenges that certification. AAPAG’s position at
    the time it negotiated the Work Rules has no bearing on the
    Teamsters’ current status.
    Furthermore, Section 152, Ninth, provides that once the
    Board determines the bargaining representative, it must issue
    a certification, and the carrier must “treat with the
    representative so certified.” We are not issuing AAPAG a
    certificate or its equivalent. And there is no reason for the
    Board to issue a certificate to AAPAG on the basis of its past
    advocacy. Our resolution of AAPAG’s status when it
    negotiated the Work Rules will not require the carrier to treat
    with AAPAG now, or ever. In short, no competing unions vie
    for the right to bargain, and no employees seek to remain or
    become unaffiliated. All agree the Teamsters are the
    employees’ RLA representative, entitled to bargain with
    Allegiant. Accordingly, this case does not raise a
    representation dispute, and federal courts have jurisdiction to
    resolve it.
    B. The Board’s Factual Finding
    In 2012, the Teamsters petitioned the Board, seeking a
    certification that it was the pilots’ bargaining representative.
    During the Board’s investigation, it determined that no party
    represented the pilots. The effect of the finding was that when
    the pilots voted, they had the option of voting for the
    Teamsters, of writing in other candidates, or to remain
    unrepresented. See National Mediation Board, Representation
    INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR                   15
    Manual § 13.201.2 If the Board had found that AAPAG
    represented the pilots, the ballot also would have included the
    option of voting for AAPAG, but that was not the case.
    Allegiant contends we do not have jurisdiction to review the
    Board’s finding that the pilots were unrepresented.
    Different rules apply when we directly review a Board
    action and when an independent claim raises issues the Board
    has already addressed. In the former situation, judicial review
    is limited to ensuring the Board acted constitutionally and
    within the scope of its statutory authority. Horizon Air Indus.,
    
    232 F.3d at 1132
    . For example, if AAPAG had challenged the
    Board’s certification of the Teamsters on the grounds that the
    Board had wrongfully kept AAPAG off the ballot, then our
    review would be limited to taking a “peek at the merits” to
    ensure that AAPAG’s exclusion was constitutional and the
    Board did not exceed its statutory authority. 
    Id.
    But in the latter case, when a party brings a claim that
    does not challenge a Board action but nonetheless raises an
    issue the Board has already addressed, courts apply principles
    of estoppel. Courts “have long favored application of the
    common-law doctrines of collateral estoppel (as to issues)
    and res judicata (as to claims) to those determinations of
    administrative bodies that have attained finality.” Astoria
    Fed. Sav. & Loan Ass’n v. Solimino, 
    501 U.S. 104
    , 107
    (1991). “When an administrative agency is acting in a judicial
    capacity and resolves disputed issues of fact properly before
    it which the parties have had an adequate opportunity to
    litigate, the courts have not hesitated to apply res judicata to
    enforce repose.” 
    Id.
     (quoting United States v. Utah Constr. &
    2
    The representation manual is available on the Board’s website,
    http://www.nmb.gov/documents/representation/representation-manual.pdf.
    16     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    Mining Co., 
    384 U.S. 394
    , 422 (1966)). We have previously
    found that Board determinations have preclusive effect when
    made in proceedings that satisfy due process and when the
    findings were supported by substantial evidence. Bldg.
    Material & Constr. Teamsters Local No. 216 v. Granite Rock
    Co., 
    851 F.2d 1190
    , 1195 (9th Cir. 1988).
    In the present case, we are not reviewing any
    administrative action. No party has asked us to invalidate the
    Board’s certification of the Teamsters as the pilots’
    representative. Rather, the case presents claims independent
    of the Board’s certification and involve the legality of
    Allegiant’s changes to the Work Rules. And resolving
    whether Allegiant’s policy changes were legal turns in part on
    whether AAPAG was the pilots’ previous RLA
    representative—a factual determination the Board has already
    answered in the negative. The question, then, is whether the
    Board’s finding is entitled to preclusive effect.
    Allegiant did not argue in its opening brief that the
    Board’s determination should have preclusive effect. Rather,
    Allegiant framed its argument as being solely about
    jurisdiction. In its answering brief, the Teamsters asserted
    that principles of collateral estoppel should not prevent the
    Court from revisiting AAPAG’s representation status. And,
    in its Reply, Allegiant acknowledges that it did not raise the
    argument of collateral estoppel, but states “IBT’s contention
    that collateral estoppel would not apply . . . has no merit.”
    Allegiant cites no authority applying preclusion principles in
    any analogous situation and, other than the quoted conclusory
    statement, it does not address the issue of estoppel. We have
    discretion to consider an issue raised in a reply brief where,
    as here, an appellee raised an issue in its brief. United States
    v. Bohn, 
    956 F.2d 208
    , 209 (9th Cir. 1992) (per curiam). But
    INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR                       17
    because Allegiant’s Reply does not cite relevant authority or
    otherwise press the point, we find the argument waived.3
    For these reasons, we hold that the district court properly
    asserted jurisdiction over the parties’ dispute.
    V. AAPAG’S REPRESENTATIVE STATUS
    The district court enjoined Allegiant from changing the
    Work Rules. And the injunction turned in part on whether
    AAPAG was an RLA representative. We review a district
    court’s injunction for abuse of discretion. Flexible Lifeline
    Sys., Inc. v. Precision Lift, Inc., 
    654 F.3d 989
    , 994 (9th Cir.
    2011). The threshold question of whether AAPAG was an
    RLA representative is a question of law that we review de
    novo. Microsoft Corp. v. Motorola, Inc., 
    696 F.3d 872
    , 881
    (9th Cir. 2012). “When a district court makes an error of law,
    it is an abuse of discretion.” 
    Id.
    The RLA defines “representative” as “any person or
    persons, labor union, organization, or corporation designated
    either by a carrier or group of carriers or by its or their
    employees, to act for it or them.” 
    45 U.S.C. § 151
    , Sixth. We
    3
    The Board required the Teamsters to identify whether there was an
    incumbent representative at the time it requested that the Board investigate
    the representation dispute. See National Mediation Board, Representation
    Manual, § 1.02(3). At that time, the Teamsters took the position that
    AAPAG was not an RLA representative. The position was to their
    advantage because it kept AAPAG off the election ballot. In a footnote in
    its Reply, Allegiant argues for the first time that the doctrine of judicial
    estoppel prevents the Teamsters from taking inconsistent positions. Reply
    Brief n.4, (citing Rissetto v. Plumbers & Steamfitters Local 343, 
    94 F.3d 597
    , 600 (9th Cir. 1996)). Because Allegiant raises that argument for the
    first time in its Reply, we find the argument also waived.
    18     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    hold that employees can “designate” an RLA representative
    in two ways. Employees may petition the Board to certify a
    labor representative. 
    Id.
     § 152, Ninth. Or, a labor organization
    can seek voluntary recognition, which requires a) it to
    unequivocally demand RLA recognition from the carrier,
    b) for the carrier to unequivocally grant recognition, and
    c) for the labor organization to make a contemporaneous
    showing that it enjoys majority support amongst the relevant
    workforce. See N.L.R.B. v. Triple C Maint., Inc., 
    219 F.3d 1147
    , 1153 (10th Cir. 2000) (describing voluntary recognition
    under the National Labor Relations Act). Because AAPAG
    sought neither Board certification nor voluntary recognition,
    we find it was not an RLA representative.
    A. The Need For Certainty
    Employees, employers, and federal courts need
    certainty—prior to the advent of litigation—on whether an
    advocacy group is an RLA representative. For example, a
    court’s ability to enjoin a labor strike could turn on whether
    employees have designated a representative. Hypothetically,
    if AAPAG was not an RLA representative then the Norris-
    LaGuardia Act might prevent a court from enjoining an
    AAPAG-led strike. See Aircraft Serv. Int’l, Inc. v. Int’l Bhd.
    of Teamsters, 
    779 F.3d 1069
    , 1080S81 (9th Cir. 2015) (en
    banc) (Berzon, J., concurring). If, however, AAPAG was a
    representative, then the pilots would need to use the RLA
    dispute resolution mechanisms prior to engaging in economic
    coercion. See Bhd. of R.R. Trainmen v. Chi. River & Ind.
    R.R., 
    353 U.S. 30
    , 42 (1957) (finding courts can enjoin union
    strike while parties undergo mandatory arbitration).
    Resolution of the dispute would turn on whether AAPAG was
    the current bargaining representative, and that question is
    INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR                19
    within the sole jurisdiction of the Board. See supra Section IV.A.
    In a similar hypothetical, if an employee had filed suit
    disputing Allegiant’s application of the Work Rules, the law
    and forum would turn on whether AAPAG was an RLA
    representative. If AAPAG was not a representative, and the
    Work Rules were therefore not a collective bargaining
    agreement, the employee’s remedy, if any, would be under
    state contract law. See Sw. Gas Corp. v. Vargas, 
    111 Nev. 1064
    , 1072 (1995) (explaining that employee handbooks can
    create an employment contract, even if the handbook includes
    a disclaimer). But if AAPAG was an RLA representative, the
    employee would have to use the Act’s arbitration procedures.
    
    45 U.S.C. § 184
    . The forum, the law, and the remedy all turn
    on the status of the labor advocate, a status courts typically do
    not have jurisdiction to determine.
    Furthermore, many airlines establish employee advocacy
    groups as a way to facilitate employee input. The Board has
    repeatedly stated that employee committees are lawful under
    the RLA, unless the carrier uses the group to interfere with a
    Board election. Delta Airlines, 
    30 N.M.B. 102
    , 122 (2002);
    Am. Airlines, 
    26 N.M.B. 412
    , 453 (1999). Carriers often pay
    the advocacy group leaders for time spent advocating, as well
    as help set up elections, fund group programs, and provide
    management classes for group officers. See, e.g., Delta
    Airlines, 30 N.M.B. at 122–26. While carriers are free to
    organize channels of communication between pilots and
    management, those actions become illegal if the advocacy
    group unwittingly changes into an RLA representative.
    
    45 U.S.C. § 152
    , Fourth. Those potentially negative legal
    consequences require employees to put the carrier on notice
    of a group’s representative status.
    20     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    Being an RLA representative also imposes legal
    obligations on the labor organization. Aside from the explicit
    obligations the Act lays out in Section 152, RLA
    representatives also have a duty of fair representation,
    Landers v. Nat’l R.R. Passengers Corp., 
    485 U.S. 652
    , 658
    (1988) (citing Steele v. Louisville & Nashville R.R. Co.,
    
    323 U.S. 192
    , 204 (1944)). And representatives have a
    statutory duty to file reports with the Department of Labor,
    
    29 U.S.C. §§ 402
    (j)(2), 431.
    It is important that employees act purposefully when
    choosing an RLA representative. When employees designate
    a representative, it affects the applicability of the RLA and
    the authority of federal courts to interfere on behalf of both
    employees and employers. The choice also imposes duties on
    both parties. This need for clarity compels us to hold that an
    entity becomes an RLA representative only when certified by
    the Board or voluntarily recognized by the employer.
    B. Designating A Representative
    The simplest way for employees to designate an RLA
    representative is to petition the Board to certify a labor
    representative. The carrier then “shall treat with the
    representative so certified.” 
    45 U.S.C. § 152
    , Ninth. Unless a
    labor representative “formally seeks and obtains certification
    as the employees’ chosen representative, the employer’s duty
    to ‘treat’ with, i.e. recognize, the representative, is not
    triggered.” Aircraft Serv. Int’l, 779 F.3d at 1083 (en banc)
    (Berzon, J., concurring) (citing Summit Airlines, Inc. v.
    Teamsters Local Union No. 295, 
    628 F.2d 787
    , 793–95 (2d
    Cir. 1980)). When employees vote on a representative, but the
    carrier refuses to negotiate, the representative labor group
    must seek Board certification. See Summit Airlines, 628 F.2d
    INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR            21
    at 795. And, finally, employees may appoint a representative
    and a carrier may voluntarily choose to negotiate with them.
    “Voluntary recognition” is the standard practice under
    federal labor laws. The Board’s handbook provides that a
    group which has petitioned the Board for a certification may
    withdraw an application if the group wishes to seek voluntary
    recognition. See National Mediation Board, Representation
    Manual § 6.0. Similarly, various courts have found that
    carriers may voluntarily recognize an RLA representative.
    See Summit Airlines, 628 F.3d at 795; Burlington N., Inc. v.
    Am. Ry. Supervisors Ass’n, 
    503 F.2d 58
    , 63 (7th Cir. 1974).
    Moreover, courts interpreting a comparable section of the
    National Labor Relations Act (NLRA) have found that
    employees can “designate” a labor representative under
    
    29 U.S.C. § 159
    (a) by either acquiring a National Labor
    Relations Board certification or through voluntary
    recognition. Triple C Maint., Inc., 
    219 F.3d at 1153
    ; Sheet
    Metal Workers’ Int’l Ass’n Local 19 v. Herre Bros. Inc.,
    
    201 F.3d 231
    , 241 (3d Cir. 1999); Am. Automatic Sprinkler
    Sys. Inc. v. N.L.R.B., 
    163 F.3d 209
    , 219 (4th Cir. 1998);
    N.L.R.B. v. Goodless Elec. Co. Inc., 
    124 F.3d 322
    , 324 (1st
    Cir. 1997). While courts hesitate to import NLRA standards
    into the RLA due to differences in the statutory schemes, see
    Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 
    394 U.S. 369
    , 383 (1969), a clear voluntary recognition rule serves the
    same salutary purposes under both statutes. It ensures that
    both parties are on notice of the legal import of their
    agreements, and thereby promotes stable labor relations. It
    prevents the need for courts to engage in post hoc
    determinations of a labor organization’s legal status. And, by
    requiring contemporaneous evidence that an organization
    enjoys majority support among the relevant workforce, it
    22     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    protects the right of a majority of employees to choose their
    labor representative.
    C. Application
    In the present case, AAPAG was not an RLA
    representative. The parties agree the Board never certified
    AAPAG under Section 152, Ninth. There is no evidence that
    AAPAG demanded Allegiant recognize it as the pilots’ RLA
    bargaining agent. To the contrary, evidence showed that
    AAPAG’s status did not come up in pilots’ discussions
    among themselves or with Allegiant. AAPAG did not
    mention the Railway Labor Act in presentations to new pilots.
    AAPAG’s Constitution and by-laws are silent about its status
    under the Act. AAPAG’s officers testified that they were
    unfamiliar with the RLA and that they never sought outside
    legal advice about the status of the group or the enforceability
    of the Work Rules. The officers never discussed whether they
    could appeal grievances beyond upper management, or
    whether they could lead the pilots out on strike. The officers
    never satisfied statutory filing requirements with the
    Department of Labor. Materials written by AAPAG’s
    president state that the group was operating “without a
    current contract” and that the pilots needed more than “a legal
    version of our 40 page work rules.” And the Teamsters, who
    worked in concert with a pilot organizing committee that
    included AAPAG officers, took the position during the Board
    election process that AAPAG was not an RLA representative.
    AAPAG’s officers, who were working with the Teamsters,
    did not contest their categorization.
    There is no evidence below (much less an unequivocal
    demand for recognition) that AAPAG officers ever told
    Allegiant they were bargaining as an RLA representative
    INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR               23
    instead of as a non-RLA employee committee. Both
    AAPAG’s officers and Allegiant’s management agreed that
    AAPAG never presented itself as an RLA bargaining agent.
    Allegiant’s filings with the SEC describe AAPAG as an “in-
    house association” and the Work Rules as a “mutually
    acceptable arrangement.” That description is in stark contrast
    to Allegiant’s statements that the flight attendants had “voted
    for representation” and were negotiating “a labor agreement.”
    Finally, while the Work Rules state that Allegiant would
    change the Work Rules “in coordination with the Allegiant
    Air Pilot’s Advocacy Group (AAPAG), the elected and
    representative body of the pilot group of Allegiant Air,”
    nothing in the Work Rules mentioned the RLA or constitutes
    Allegiant’s unequivocal recognition of AAPAG’s RLA
    status.
    If a labor organization wants to be an RLA representative,
    it must demand recognition from a carrier; if the carrier will
    not give it, the group must seek Board certification. Because
    AAPAG did neither, it was not an RLA representative.
    Because AAPAG was not an RLA representative, the
    Work Rules were not a collective bargaining agreement
    within the meaning of the RLA.4 Thus, when the Teamsters
    and Allegiant met to draft a collective bargaining agreement,
    there was no agreement in place. We have previously found
    the RLA does not require a carrier to maintain the status quo
    during negotiations of an initial labor agreement. Int’l Bhd. of
    Teamsters v. N. Am. Airlines, 
    518 F.3d 1052
    , 1057–58 (9th
    Cir. 2008). The RLA therefore did not prevent Allegiant from
    4
    The Work Rules may have created an employment contract under
    Nevada state law, but that question is not subject to our review.
    24      INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR
    changing the Work Rules, and the district court erred in
    entering an injunction.
    VI. CONCLUSION
    Accordingly, the district court’s injunction is VACATED
    and the case is REMANDED to permit the Teamsters and
    Allegiant to continue negotiating a collective bargaining
    agreement in conformity with the RLA and under the Board’s
    guidance.
    Each party shall bear its own costs on appeal.
    

Document Info

Docket Number: 14-16465

Citation Numbers: 788 F.3d 1080

Filed Date: 6/8/2015

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (25)

National Labor Relations Board v. Goodless Electric Co., ... , 124 F.3d 322 ( 1997 )

No. 99-9500 , 219 F.3d 1147 ( 2000 )

Sheet Metal Workers' International Association Local 19 v. ... , 201 F.3d 231 ( 1999 )

american-automatic-sprinkler-systems-incorporated-v-national-labor , 163 F.3d 209 ( 1998 )

international-brotherhood-of-teamsters-chauffeurs-warehousemen-helpers , 717 F.2d 157 ( 1983 )

summit-airlines-inc-v-teamsters-local-union-no-295-and-teamsters-local , 628 F.2d 787 ( 1980 )

Flexible Lifeline Systems., Inc. v. Precision Lift, Inc. , 654 F.3d 989 ( 2011 )

United Transportation Union v. United States of America ... , 987 F.2d 784 ( 1993 )

Building Materials and Construction Teamsters Local No. 216,... , 851 F.2d 1190 ( 1988 )

horizon-air-industries-inc-a-washington-corporation-v-national , 232 F.3d 1126 ( 2000 )

burlington-northern-inc-plaintiff-counterdefendant-appellee-v-the , 503 F.2d 58 ( 1974 )

United Transportation Union v. Gateway Western Railway ... , 78 F.3d 1208 ( 1996 )

United States v. James A. Bohn , 956 F.2d 208 ( 1992 )

Harriet Rissetto v. Plumbers and Steamfitters Local 343, a ... , 94 F.3d 597 ( 1996 )

Astoria Federal Savings & Loan Ass'n v. Solimino , 111 S. Ct. 2166 ( 1991 )

Steele v. Louisville & Nashville Railroad , 65 S. Ct. 226 ( 1944 )

Switchmen's Union v. National Mediation Board , 64 S. Ct. 95 ( 1943 )

General Committee v. M.-K.-TR CO. , 64 S. Ct. 146 ( 1943 )

Brotherhood of Railroad Trainmen v. Chicago River & Indiana ... , 77 S. Ct. 635 ( 1957 )

Brotherhood of Railway & Steamship Clerks, Freight Handlers,... , 85 S. Ct. 1192 ( 1965 )

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