International Brotherhood of Teamsters, Airlines Division v. Allegiant Air, LLC

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.