The Seventh Circuit recently answered in a novel way a question under the Railway Labor Act (RLA). The question was presented to it when a federal trial court issued an injunction prohibiting Frontier Airlines from altering unilaterally its mechanics' pay, work rules or working conditions unless and until the National Mediation Board (NMB) rules, as part of a single carrier case, that the International Brotherhood of Teamsters (IBT) is not the mechanics' lawful representative as a consequence of the operational integration of Frontier and Republic Airways Holdings' (RAH) other air carrier subsidiaries. Recognizing the RLA does not permit an employer to seek such a determination from the NMB, and that IBT had no incentive to do so, the Seventh Circuit noted that the trial court's injunction essentially maintained the representation status of what may well be an illegal minority union. Accordingly, the Seventh Circuit ordered the trial court to modify the injunction to condition its continuance "on the union's prompt application to the Board for a ruling on the representation of Frontier's mechanics: are they represented by the union, or by no one?" See International Brotherhood of Teamsters Airline Division v. Frontier Airlines, Inc. and Republic Airways Holding, Inc. (7th Cir. Dec. 13. 2010).
The NMB has exclusive jurisdiction to determine representation disputes. Representation disputes include (a) whether, and if so by what representative, employees are represented for purposes of collective bargaining, and (b) the identity of the carrier to which a union's certification would apply (e.g., a single corporate airline entity, or a combination of airline entities that together comprise a "single carrier"). Representation disputes can arise under a broad variety of circumstances, which include situations in which previously separate air carriers are merged following an acquisition. When that happens, doubt can arise regarding whether a pre-existing union certification reaching the employees of one of those carriers continues in force at the new, larger, single carrier. In such cases, unions often seek judicial intervention to compel continued recognition and/or extend their representation status to cover employees of the smaller acquired airline. Under existing precedent, when confronted with representation disputes, courts almost uniformly have dismissed the complaint for lack of subject matter jurisdiction because the NMB has exclusive jurisdiction; thus, to issue an injunction enforcing the status quo would, even if temporarily, improperly decide the representation dispute.
This case arose after Republic Airways (whose mechanics are non-union) acquired Frontier Airlines and took steps to integrate the operations of Frontier with those of RAH's other subsidiaries Republic Airlines, Chautauqua Airlines, and Shuttle America. IBT, which had been certified to represent Frontier's mechanics, claimed that certain of those measures violated that status quo. RAH, on the other hand, argued that all of its airline subsidiaries constituted a single carrier within the meaning of the RLA. Thus, according to RAH, because the Frontier mechanics were not a majority of the craft or class of mechanics within the single carrier, IBT did not represent a majority of the mechanics and, therefore, did not represent any of them. When the IBT filed for an injunction to maintain the status quo, RAH argued the court was presented with a representation dispute over which it lacked jurisdiction. The district court disagreed, holding that the fact that the IBT had not actually filed with the NMB an application to obtain resolution of the representation dispute meant that there was no representation dispute to resolve.
The Seventh Circuit disagreed and held that there was, indeed, a representation dispute. It did not, however, merely remand to the district court with an order that it dismiss the complaint. Rather, it ordered the continuation of the injunction, contingent upon IBT "promptly" seeking resolution of its representational status. According to the Seventh Circuit, the injunction "maintains for the indefinite future (it has no expiration date, and is 'preliminary' in name only), what may well be an illegal status quo – a union supported by only a fourth of the bargaining unit yet acting as the bargaining representative of that minority." The court noted that it has no reason to think that the majority of Republic's mechanics want to be represented by IBT and if not, they may be placed at a disadvantage if Republic were required to extend special privileges to Frontier's mechanics. At the same time, the carrier legally was barred from seeking an NMB investigation into IBT's representational status, and IBT had no incentive to do so because it did not want to lose its status as the bargaining representative for Frontier's mechanics.
The Seventh Circuit found that the union could not justify the standoff produced by the injunction issued by the trial court. The court held that it would be inequitable to permit the union, after obtaining an injunction in its favor, to foreclose by deliberate inaction a determination of whether it remains the legally authorized bargaining representative of the Frontier mechanics. Accordingly, the Seventh Circuit ordered the trial court to modify the injunction to condition it on the union's expeditious application to the Board for a ruling on the representation of Frontier mechanics.
The IBT's Petition for Rehearing en banc was denied by the Seventh Circuit on February 13, 2011. RAH is anxiously awaiting the district court modifying the injunction in accordance with the Seventh Circuit's mandate so the issue of IBT's representation status can finally be addressed and resolved by the Board.