Air Line Pilots Association v. National Labor Relations Board
United States Court of Appeals for the Ninth Circuit
Cite as 05-75333

USCA: Airline Pilots Association’s case covered by Railway Labor Act

The pertinent facts of the case are as follows:

Air Line Pilots Association is the oldest and largest labor organization in the United States, representing airline pilots covered by the Railway Labor Act.

On the other hand, at that time, DHL Airways was a wholly owned subsidiary of a holding company, referred to as DHL Holdings. The principal business of the DHL Holdings network is the rapid pickup, sorting, and carriage on a time-sensitive basis of documents, small parcels, and other freight.

In the meantime, Air Line Pilots Association was certified by the National Mediation Board as the representative of the DHL Airways pilots in 1990, pursuant to the Railway Labor Act. At the time of the present dispute, Air Line Pilots Association represented approximately seventeen pilots of Ross Aviation, Inc.

It is undisputed that because the Ross Aviation pilots are covered by the National Labor Relations Act, Air Line Pilots Association is considered a “labor organization” within the meaning of the Act. Thus, Air Line Pilots Association and DHL Airways entered into a collective bargaining agreement in 1998.

The Scope Clause of the agreement between Air Line Pilots Association and DHL Airways provides, in part, that all present and future flying performed on DHL Airways’ behalf . . . shall be performed by DHL Airways’ pilots. It continued that it is the DHL Airways’ intent to handle permanent increases in volume through the acquisition of additional airlift capacity rather than subcontracting, and to use DHL Airways pilots to the maximum extent possible.

DHL Holdings subsequently agreed in a Side Letter Agreement that it and any of its successors would be bound by the Scope Clause.

In the succeeding events, the DHL network restructured its U.S. operations in both March 2001 and July 2003.

The restructuring results in the transfer of DHL Holdings of the ground operations of DHL Airways to a new, wholly owned DHL Holdings subsidiary called DHL Worldwide Express, Inc. (DHL Worldwide). This was in March 2001. DHL Airways was left with only the assets related to the air operations.

In light of the U.S. ownership restrictions, a majority of the voting and equity interest in DHL Airways was sold to a U.S. citizen.

Consequently, DHL Holdings, DHL Worldwide, and DHL Airways entered into contractual arrangements with each other that enabled the air and ground network to be operated just as it had prior to the restructuring.

DHL Holdings sold its remaining shares of DHL Airways on July 14, 2003. Following the sale, DHL Airways was wholly owned by a group of independent investors, one of whom was its chief executive.

The new owners changed DHL Airways’ name to ASTAR Air Cargo, Inc.

Meanwhile, in March 2003, the parent company of DHL Holdings announced an agreement to merge with Airborne, Inc. who was similarly engaged in the business of time sensitive delivery of documents, small packages, and other freight. Airborne had its own flying subsidiary, ABX.

ABX pilots are represented by the Teamsters and governed by the Railway Labor Act.

When the merger was completed on August 15, 2003, ABX became an independent company and Airborne, consisting only of ground operations, became a wholly owned subsidiary of DHL Holdings.

Considerably, the merger results in the disproportionate engagement between the ABX pilots and the ASTAR pilots. The ABX pilots have more privileges in different areas of concern than the ASTAR pilots.

The merger has brought this dispute, relating to the application of two laws, namely, Railway Labor Act and National Labor Relations Act.

Thus, on June 16, 2003, prior to completion of the Airborne merger, Air Line Pilots Association sent DHL Holdings a letter asserting that the flying generated by the former Airborne operations would be subject to the scope provisions of the DHL Airways (now ASTAR) collective bargaining agreement.

Representatives from Air Line Pilots Association and the DHL Holdings network met to discuss the matter on August 7, 2003. However, no concrete solutions was entered which led to the Air Line Pilots Association’ submission of grievance against DHL Holdings and DHL Worldwide, alleging violations of the collective bargaining agreement and requesting expedited arbitration as required by the agreement.

Later on, DHL Holdings then filed an action against Air Line Pilots Association in the District Court for the Southern District of New York.

In the action, DHL Holdings sought a declaratory judgment contending that the collective bargaining agreement did not require that ASTAR perform future flying on behalf of Airborne. In the alternative, DHL Holdings sought an order that Air Line Pilots Association’s claim over the Airborne work was a representation dispute within the exclusive jurisdiction of the National Mediation Board under the Railway Labor Act.

Air Line Pilots Association filed an answer and counterclaim, contesting the allegations. In the answer, Air Line Pilots Association requests the District Court the following:

1. To compel DHL Holdings to submit the underlying dispute to arbitration


2. To declare that the collective bargaining agreement was in full force and effect, and


3. To restrain DHL Holdings from implementing any agreement with ABX pursuant

On September 10, 2003, ABX filed a charge with the NLRB against Air Line Pilots Association alleging that, by filing the grievance and attempting to force DHL Holdings not to do business with ABX, Air Line Pilots Association had violated the National Labor Relations Act.

The District Court action was stayed pending resolution of ABX’s Charge.

The NLRB issued a formal Complaint against Air Line Pilots Association on December 10, 2003. The Complaint alleged that Air Line Pilots Association’s filing of the counterclaim as well as the grievance violated the secondary boycott provisions of the National Labor Relations Act.

Air Line Pilots Association countered that the NLRB did not have jurisdiction over the dispute, arguing in part that the present dispute was a Railway Labor Act dispute invoking the Supreme Court’s holding in Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369 (1969). Air Line Pilots Association also argued that it had not violated the secondary boycott provisions of the National Labor Relations Act.

An Administrative Law Judge (ALJ) held a hearing on the NLRB’s Complaint against Air Line Pilots Association on March 10 and 11, 2004.

In a July 2, 2004, decision, the ALJ found that Air Line Pilots Association had committed the violations alleged in the Complaint and recommended a remedial order. Air Line Pilots Association filed exceptions to this decision.

On August 21, 2005, by a vote of two to one, the NLRB issued a decision affirming the rulings, findings, and conclusions of the ALJ and adopting his recommended order.

On review, the NLRB concluded in these respects:

• That the ALJ had properly found that the NLRB had jurisdiction over the dispute


• That, as Air Line Pilots Association conceded that it was a “labor organization” under the National Labor Relations Act and therefore subject to its prohibitions, including the secondary boycott provisions.


• That DHL Holdings was subject to the National Labor Relations Act.


• That Air Line Pilots Association’s extension of this dispute to an NLRA-covered employer distinguishes this case from Jacksonville Terminal. The NLRB found that, unlike Jacksonville Terminal, the present dispute was not a “pure” Railway Labor Act dispute.


• That Air Line Pilots Association subjected itself to NLRB jurisdiction by representing employees covered by the National Labor Relations Act.


• That enforcing the National Labor Relations Act’s secondary boycott provisions would not subvert the Railway Labor Act.


• That Air Line Pilots Association’s pursuit of its grievance and counterclaim constituted unlawful secondary conduct.


• That the object of Air Line Pilots Association’s conduct was to require DHL Holdings and its Airborne subsidiary to cease doing business with ABX.


• That Air Line Pilots Association’s conduct had impermissible work acquisition objectives.

Having affirmed the Administrative Law Judge’s holdings that the NLRB had jurisdiction over the dispute and that ALPA had violated the National Labor Relations Act, the Board adopted the ALJ’s recommended remedy.

Thus, in part, the Board’s Order the following:

• Requires Air Line Pilots Association to cease and desist from violating the National Labor Relations Act


• To withdraw its grievance and counterclaim


• To reimburse DHL Holdings for reasonable expenses and legal fees in defending against the grievance and counterclaim, and


• To post a notice to its members regarding its remedial actions

Air Line Pilots Association filed a petition for review before the United States Court of Appeals for the Ninth Circuit.

The appeals court grants Air Line Pilots Association’s petition for review and set aside the Board’s order.

Thus, it held:

Where the complaint was filed before National Labor Relations Board against airplane pilots association, which alleges that it committed unfair labor practices(by attempting to enforce certain provisions of a collective bargaining agreement with carrier after carrier merged with another entity), the board erred in adopting administrative law judge’s ruling that association’s conduct had violated National Labor Relations Act. The reason was that, the matter was actually a Railway Labor Act dispute under analysis in Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co. (1969) 394 U.S. 369, and that the board lacked jurisdiction.