UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


DAVENPORT, BILLIE

v.

INTL BRHD TMSTR


97-7190a

D.C. Cir. 1999


*	*	*


Garland, Circuit Judge: The plaintiffs in this case are  individual
members of the International Brotherhood of  Teamsters, AFL-CIO
("IBT"), and of IBT Local 2000 ("Local  2000") which represents all
flight attendants employed by  Northwest Airlines ("Northwest"). The
dispute concerns a  temporary labor agreement known as the "Bridge
Agree- ment." Plaintiffs sued the IBT, Local 2000 and Northwest, 
contending that the president of Local 2000 lacked authority  to enter
into the Bridge Agreement because he failed to  submit it for
ratification by the union's membership. The  district court denied
plaintiffs' request for a preliminary  injunction against
implementation of the Agreement. We  affirm.


I


The employment relationship between Northwest and its  flight
attendants is governed by a collective bargaining agree- ment entered
into on August 1, 1993.1 Section 5.A of the  agreement regulates the
number of hours a flight attendant  can be required to fly within a
given period of time ("flight  time"), the number of hours a flight
attendant can be re- quired to work in a shift ("duty time"), and rest
periods. See  Appendix ("App.") 78-80. Specifically, s 5.A.3.b
prescribes  what is known as the "8-in-24" rule, which states that a
flight  attendant cannot be scheduled for more than 8 hours of flight 
time within any 24-hour period unless certain interim rest  conditions
are met. Section 5.A.3.d states that attendants 




__________

n 1 By its terms, the 1993 agreement became amendable 60 days  prior to
August 2, 1996, and the parties currently are engaged in  negotiations
for a new collective bargaining agreement. Complaint  p 18.


generally cannot be scheduled for more than 30 hours of  flight time in
any 7-day period. Section 5.A.4 provides the  additional restriction
that duty time may last no more than 12  to 14 hours.


In March 1993, while the collective bargaining agreement  was under
negotiation, the Federal Aviation Administration  announced that for
the first time it was considering including  flight attendant duty
time in its Federal Aviation Regulations  ("FARs"). See 58 Fed. Reg.
17,024 (1993). Northwest and  the IBT responded by including the
following language in the  final version of section 5.A.3:


Current Federal Air Regulations as described in para- graphs 3.a.
through e. below, shall apply to all Flight  Attendants for daily and
weekly limitations. Any  changes or modifications in the Federal Air
Regulations  shall also be applied to Flight Attendants.


App. 78. The new FARs were published on August 19, 1994  and became
effective in early 1996. They regulate duty time  and rest periods for
flight attendants by permitting airlines to  assign duty time of 14 to
20 hours, rather than the 12 to 14  hours prescribed by the collective
bargaining agreement.  The FARs do not limit flight time, whereas the
collective  bargaining agreement limits it to 8 hours in 24 and 30
hours  in 7 days. See 59 Fed. Reg. 42,974 (1994); 14 C.F.R.  s


Northwest took the position that in light of the new FARs,  section
5.A.3 of the collective bargaining agreement permitted  it to
implement changes in the flight time limits, as well as to  override
other limits previously set forth in section 5.A. At a  meeting on
October 31, 1994, the then-president of Local  2000, Mary Don Erskine,
disagreed. Erskine's successor as  president of Local 2000, Bruce
Retrum, took office two  months later, on January 1, 1995. Northwest
continued to  press its position and negotiations ensued.


In June 1996, Northwest sent Retrum a proposed letter of  agreement and
stated that if the dispute were not resolved  shortly, Northwest would
seek arbitration. App. 194. 


Northwest's proposal was known as the "Bridge Agreement,"  so-called
because it was intended to remain effective only for  a "bridge"
period until a permanent agreement was reached  under a new collective
bargaining agreement. See supra note  1. Under the Bridge Agreement,
Northwest would be al- lowed to override the 8-in-24 rule when
scheduling "higher  value turnarounds" ("HVTs"), flight sequences that
begin and  end at a flight attendant's home base and generally do not 
involve more than three separate flight segments. In return, 
Northwest would pay flight attendants higher, international  flight
rates in certain instances involving longer flight and  duty time, and
would refrain from implementing other modifi- cations in flight and
duty time it believed authorized by the  new FARs.


On July 17, 1996, Retrum responded that he would prefer  to continue
negotiations rather than begin arbitration.  Northwest agreed to
postpone arbitration, and negotiations  continued for the next several
months without resolution. An  arbitration date was set for January
29, 1997.


In late January 1997, just before the arbitration was sched- uled to
begin, Retrum held two conference calls to discuss the  situation with
base representatives and executive board mem- bers of Local 2000.
Retrum said that he had reviewed the  Bridge Agreement with the
lawyers for Local 2000, who had  advised him that the Local "could not
hope to win an arbitra- tion" on the matter. Id. at 39. Retrum took a
vote of the  base representatives and executive board to determine
wheth- er to arbitrate the issue, accept the Bridge Agreement, or do 
nothing. The majority voted to accept the proposal. Id. at  40.


Some Local 2000 representatives, however, objected to  adopting the
Agreement without ratification by the member- ship. During one of the
conference calls, Retrum explained  that since the Agreement "was a
grievance settlement and  not an amendment to the contract,"
ratification was unneces- sary. Id. at 476. Thereafter, Retrum
consulted with the IBT  Legal Department regarding membership
ratification, and  was specifically advised that ratification was


Id. at 477. Retrum signed the Bridge Agreement on Febru- ary 11,
1997.


On March 11, 1997, five union members, two of whom are  plaintiffs in
this case, wrote to the then-General President of  the IBT, Ron Carey,
expressing their view that Retrum had  no authority to enter into the
Bridge Agreement without  membership ratification. They asked Carey to
review the  matter and determine whether ratification was required.
Id.  at 363-64. On March 21, 1997, Carey wrote to Retrum.  Carey
stated that he had "completed [his] review of the flight  duty time
issue and the terms of the settlement signed by  Local 2000." He
recommended that the Local "immediately  communicate the terms of the
settlement to the membership,"  "encourage membership input regarding
aspects of the settle- ment which they believe adversely impacts
them," and then  "use this member information to determine its
bargaining  proposal or position" in ongoing negotiations with
Northwest  for a new collective bargaining agreement. He did not, 
however, suggest that ratification was required. Id. at 62-63.


On August 8, 1997, the IBT wrote to Northwest. "Without  taking a
position as to whether the bridge agreement is  subject to [the
ratification] requirement," the IBT wrote,  "there is a colorable
issue as to the agreement's validity  absent ratification." Id. at 10.
The IBT advised Northwest  that it would submit the matter to the
membership for an  advisory vote, and specifically reserved the right
to arbitrate  the issue. Id. at 10-11. Northwest responded on August
12,  1997 that, pursuant to the Bridge Agreement, it would imple- ment
HVTs in September and October 1997. Id. at 189.


On August 26, 1997, the plaintiffs sued to prevent imple- mentation of
the Agreement and moved for a temporary  restraining order and
preliminary injunction. The complaint,  which named the IBT, Local
2000, and Northwest as defen- dants, alleged three causes of action.
Plaintiffs contended  that by going ahead with the Bridge Agreement
without  membership ratification, Local 2000 and the IBT had: (1) 
violated plaintiffs' equal voting rights under section 101(a)(1)  of
the Labor-Management Reporting and Disclosure Act 


("LMRDA"), 29 U.S.C. s 411(a)(1);2 (2) breached plaintiffs' 
ratification rights under the IBT constitution in violation of 
section 301 of the Labor Management Relations Act  ("LMRA"), 29 U.S.C.
s 185;3 and (3) breached their duty of  fair representation. App. 1-9.
The complaint did not assert  a cause of action against Northwest,
although it did allege  that Northwest "knew and understood that a
supplemental  agreement or agreement to modify or amend a collective 
bargaining agreement was required to be ratified by the  affected
membership before it may be implemented," and that  Northwest could
not "lawfully implement the Bridge Agree- ment with knowledge that it
was not ratified in accordance  with the IBT constitution." Id. at 5,


On October 3, 1997, the district court denied the motion for  a
preliminary injunction, holding that plaintiffs could not  establish a
likelihood of success on the merits. Treating the  counts leveled
against the union defendants as if they also  had been leveled against
Northwest, the court held that the  two statutory causes of action
could not lie against North- west. See Davenport v. International Bhd.
of Teamsters, 981  F. Supp. 6, 8-9 (D.D.C. 1997). LMRDA s 101, the
court  held, governs only the rights of union members against  unions.
LMRA s 301, it said, does not apply to employers  


__________

n 2 LMRDA s 101(a)(1) provides:


Every member of a labor organization shall have equal rights  and
privileges within such organization to nominate candi- dates, to vote
in elections or referendums of the labor  organization, to attend
membership meetings, and to partici- pate in the deliberations and
voting upon the business of  such meetings, subject to reasonable
rules and regulations in  such organization's constitution and


3 LMRA s 301(a) provides:


Suits for violation of contracts between an employer and a  labor
organization representing employees in an industry  affecting commerce
as defined in this chapter, or between  any such labor organizations,
may be brought in any district  court of the United States having
jurisdiction of the parties,  without respect to the amount in
controversy or without  regard to the citizenship of the parties.


like Northwest, who are subject to the Railway Labor Act  ("RLA"), 45
U.S.C. ss 151-188. The district court further  held that because
Northwest had not bargained in bad faith,  and had not knowingly
implemented an unratified agreement  that was an obvious alteration of
the terms of the collective  bargaining agreement, the duty of fair
representation could  not give rise to a valid cause of action against
Northwest.  Davenport, 981 F. Supp. at 8-9 & n.2.


Subsequently, the members of Local 2000 elected plaintiffs  Billie
Davenport and Danny Campbell as the two principal  officers of Local
2000, with Davenport replacing Retrum as  president. On December 18,
1997, the Local held a referen- dum on the Bridge Agreement and the
members rejected it  decisively. Thereafter, the IBT demanded that
Northwest  rescind the Agreement. When Northwest refused, the IBT 
filed a cross-claim against Northwest pursuant to the RLA,  seeking an
injunction requiring Northwest to cease applying  the Bridge Agreement
and to restore and maintain the status  quo.


II


Plaintiffs appeal the district court's denial of their motion  for a
preliminary injunction. Although the IBT and Local  2000 remain
nominal defendants-appellees, they now support  the position of the
plaintiffs.


A court considering a plaintiff's request for a preliminary  injunction
must examine whether: (1) there is a substantial  likelihood plaintiff
will succeed on the merits; (2) plaintiff will  be irreparably injured
if an injunction is not granted; (3) an  injunction will substantially
injure the other party; and (4)  the public interest will be furthered
by an injunction. See  Serono Lab. v. Shalala, 158 F.3d 1313, 1317-18
(D.C. Cir.  1998). These factors interrelate on a sliding scale and
must  be balanced against each other. Id. at 1318. We review the 
district court's weighing of the preliminary injunction factors  for
abuse of discretion, while reviewing its underlying legal  conclusions
de novo and its underlying factual findings for  clear error. Id.


III


The district court held that the plaintiffs were not likely to  succeed
on the merits because they could not establish a  cause of action
against Northwest. Plaintiffs do not appeal  the court's rejection of
their claim under LMRDA s 101, see  Pl. Br. at 14 n.6, but do dispute
the court's conclusions with  respect to the duty of fair
representation and LMRA s 301.  They also raise a number of
additional, miscellaneous argu- ments.


A


The Railway Labor Act, 45 U.S.C. ss 151-188, governs  labor relations
in the railroad and airline industries. Section  2 of the RLA grants
to employees the right to organize and  bargain collectively through
representatives of their own  choosing, and requires employers under
the Act to bargain  exclusively with the representatives so chosen. 45
U.S.C.  s 152. Based on that section and other considerations, the 
Supreme Court has inferred a duty of fair representation  owed by
unions to their members. See Air Line Pilots Ass'n,  Int'l v. O'Neill,
499 U.S. 65, 74-76 (1991); Steele v. Louisville  & Nashville R.R. Co.,
323 U.S. 192, 199-203 (1944).4


A union "breaches its duty of fair representation if its  actions are
either 'arbitrary, discriminatory, or in bad faith.' "  Air Line
Pilots, 499 U.S. at 67 (quoting Vaca v. Sipes, 386  U.S. 171, 190
(1967)). A union's actions are arbitrary, the  Supreme Court has held,
"only if, in light of the factual and 




__________

n 4 The duty of fair representation also applies to unions certified 
under the National Labor Relations Act ("NLRA"), based on  NLRA
provisions comparable to section 2 of the RLA. See Vaca v.  Sipes, 386
U.S. 171, 177 (1967); Ford Motor Co. v. Huffman, 345  U.S. 330, 336-37
(1953). Cases describing the scope of the duty  freely cite precedents
under both statutes. See, e.g., Marquez v.  Screen Actors Guild, 119
S. Ct. 292, 300 (1998) (citing Air Line  Pilots, 499 U.S. at 67); Air
Line Pilots, 499 U.S. at 67 (citing Vaca,  386 U.S. at 190); Ford
Motor Co., 345 U.S. at 337 (citing Steele, 323  U.S. at 198-99).


legal landscape at the time of the union's actions, the union's 
behavior is so far outside a wide range of reasonableness as  to be
irrational." Id. at 67 (internal quotation and citation  omitted); see
Marquez v. Screen Actors Guild, 119 S. Ct. 292,  300 (1998). "The duty
of fair representation does not itself  require ratification votes,"
although "the discriminatory deni- al of the right to ratify [an
agreement with the employer]  may be inconsistent with a union's
obligation." American  Postal Workers Union, Local 6885 v. American
Postal Work- ers Union ("Postal Workers"), 665 F.2d 1096, 1105 n.20


Under certain circumstances, where a union has breached  its duty of
fair representation an employer may also be  implicated in the union's
breach. See Czosek v. O'Mara, 397  U.S. 25, 29 (1970); Postal Workers,
665 F.2d at 1109-10;  Steffens v. Brotherhood of Ry., Airline & S.S.
Clerks, 797  F.2d 442, 445 & n.2 (7th Cir. 1986). In Postal Workers,
we  recognized that "an employer may sometimes be joined in a  suit
involving duty of fair representation claims against a  union." 665
F.2d at 1109. We noted that "[i]n all such cases,  however, the
employer somehow acted improperly and in- fringed the rights of the
individual aggrieved employees."  Id. We further observed that in such
cases, "the court[s]  required that the employer have actual notice
of, or might  reasonably be charged with notice of, the union's breach
of  duty to its members." Id.


The parties dispute the proper standard for determining  whether an
employer can be implicated in a union's breach of  duty. Northwest
focuses on the language in Postal Workers  which requires that "the
employer somehow acted improper- ly." Id. Citing cases from several
circuits, Northwest con- tends that a plaintiff must "prove employer
misconduct which  amounts to collusion in the union's breach,"
Northwest Br. at  20, and not simply "knowledge" of the breach. See,
e.g.,  Dement v. Richmond, Fredericksburg & Potomac R.R., 845  F.2d
451, 464 n.21 (4th Cir. 1988); United Indep. Flight  Officers v.
United Airlines, 756 F.2d 1274, 1283 (7th Cir. 


1985); Raus v. Brotherhood Ry. Carmen, 663 F.2d 791, 797- 98 (8th Cir.
1981).


Plaintiffs, by contrast, fasten on the "actual notice" lan- guage of
Postal Workers, and argue that an employer's  "knowledge" of a union's
breach is a sufficient predicate.  They contend that the union
breached its duty of fair repre- sentation when it signed the Bridge
Agreement without ratifi- cation by the membership, knowing that
ratification was  required. And they further assert that Northwest
implicated  itself in the union's breach by signing the Agreement with
 knowledge both that ratification was required and that the  union had
knowingly dispensed with it. In support, they cite,  inter alia,
Goclowski v. Penn Central Transportation Co., in  which the Third
Circuit indicated that a cause of action could  be made out against
both a union and an employer if plaintiffs  "establish that the Union
had no authority to enter into [an]  agreement and that the employer
was aware of this contrac- tual disability." 571 F.2d 747, 760 (3d
Cir. 1978). But see id.  at 761 n.18 ("On the facts of the instant
case, the Railroad's  collusion with the Union, if proved, would
amount to an  undermining of the basic collective bargaining
agreements.")  (emphasis added). See also Merk v. Jewel Food Stores,
945  F.2d 889, 896 (7th Cir. 1991) (stating that "[f]ailure to ratify 
under circumstances where an employer is aware both of the 
ratification requirement and of the failure to comply with it  may
invalidate an employer's claims under the unratified  agreement," but
noting that "crucial to our analysis" is that  "non-ratification was


We need not resolve this legal dispute in order to decide  this case,
because the plaintiffs cannot show a likelihood of  success on the
merits even under the standard they propose.5  Plaintiffs do not
contend that an employer's (or union's) mere  mistake about whether
ratification was required is enough to 




__________

n 5 For the same reason, we need not decide whether the union  itself
breached its duty, a necessary prerequisite for concluding that  the
employer was implicated in such a breach. See Postal Workers,  665
F.2d at 1108.


create liability. See Postal Workers, 665 F.2d at 1101 (noting  that
interpretations of union constitutions by unions, "if rea- sonable and
in good faith, are not to be disturbed by the  courts"). They concede
that the requirement of ratification  must at least be "objectively
clear" at the time. See Oral  Arg. Tr. at 60-62. Indeed, plaintiffs do
not disagree with the  district court's characterization of their own
leading case,  Goclowski, as one in which " 'the employer ...
knowingly  implemented an unratified agreement that was an obvious 
alteration of the terms of the collective bargaining agree- ment.' "
Pl. Br. at 37 (quoting Davenport, 981 F. Supp. at 9  n.2 ). They
simply disagree with the court's determination  that this case does
not share those facts. But we review such  a factual finding only to
determine whether it is clearly  erroneous, and we cannot so
characterize the district court's  finding here.


Plaintiffs accurately note that the IBT constitution provides  that
"amendments" to collective bargaining agreements must  be ratified by
the membership. Article XII, section 2(b).  And plaintiffs' contention
that the Bridge Agreement consti- tuted such an amendment is not an
unreasonable one. But  the contrary view, that the Bridge Agreement
did not alter  the terms of the collective bargaining agreement but
merely  settled a dispute over their interpretation, is also not
unrea- sonable, let alone irrational. See Air Line Pilots, 499 U.S. at
 67 (holding that a union breaches its duty of fair representa- tion
only where its behavior is "so far outside a wide range of 
reasonableness as to be irrational") (internal quotation and  citation


The collective bargaining agreement provided that "[a]ny  changes or
modifications in the Federal Air Regulations shall  also be applied to
Flight Attendants." Section 5.A.3. Based  on this provision, Northwest
contended that the new FARs  superseded the duty time and rest period
limitations found  elsewhere in the collective bargaining agreement.
Retrum,  the Local's president, was advised by the Local's legal
counsel  that the union "could not hope to win an arbitration" if it


disputed Northwest on this issue. App. 39. He was also  advised by IBT
counsel that:


Letters of understanding that either interpret and/or  assist in the
application of existing contract language or  provide language which
memorializes the parties' under- standing of a subject by filling in
gaps in the contract  generally do not require ratification. These
types of  letters do not change the terms of the contract but  merely
interpret and apply the contract that was ratified  by the


Id. at 26. And the week before Retrum signed the Bridge  Agreement, he
was "specifically advised" by IBT counsel that  ratification of the
Agreement was unnecessary. Id. at 479.  Based on this advice, Retrum
concluded that the union consti- tution "did not have to be ratified
because [it] did not create  new contract terms but only resolved a
dispute over interpre- tation of the existing contract." Id. at 312;
see id. at 477-78.6


While the IBT now contends that ratification was required,  that is a
position it arrived at quite late.7 Even after the  signing of the
Agreement, the IBT's Legal Department twice  reaffirmed that "no
ratification vote was necessary in the  opinion of the IBT because the
Bridge Agreement was a  grievance settlement and not an amendment to
the collective  bargaining agreement." Id. at 479; see id. at 481.
When the  plaintiffs put the question directly to the IBT's


__________

n 6 Although the Bridge Agreement used the words "amend" and  "modify"
in its text, Retrum explained that the Agreement used  "this
terminology not because it is an amendment or supplemental  agreement,
but because the underlying language" of the existing  collective
bargaining agreement itself used it. App. 477. As Ret- rum pointed
out, s 5.A.3.b provided that "[a]ny changes or modifi- cations" in the
FARs "shall also be applied to Flight Attendants."  See id.; see also
id. at 78. Retrum also pointed out that side-letters  typically used
by the union and Northwest to resolve disputes over  interpretation of
the collective bargaining agreement (discussed in  the text below)
were sometimes labeled "contract amendments."  Id. at 306-07.


7 The IBT took this position in its answer to the plaintiffs'  amended
complaint, filed on September 24, 1997. App. 513, p 14.


President, Ron Carey, he did not suggest that ratification was 
required. Instead, he merely noted in a letter that


[w]hen the [new] FARs became effective Northwest ad- vised Local 2000
that it believed the terms of the collec- tive bargaining agreement
permitted it to implement  changes to the daily and weekly
limitations.... The  Company argued that it could apply the new FARs
to  Teamster members and ignore the better contract lan- guage because
of language ... which provides that "any  changes or modifications in
the Federal Air Regulations  shall also be applied to flight


Id. at 62. Even after individual union members threatened to  sue over
the failure to ratify, the IBT's Associate General  Counsel told
Northwest only that "there is a colorable issue  as to the agreement's
validity absent ratification"--while  expressly declining to
"conced[e] the correctness of the com- plaining members' legal
position." Id. at 10. Indeed, in their  amended complaint, plaintiffs
charged that "[t]he IBT has not  repudiated the Bridge Agreement and
by its actions it has  ratified the Agreement." Id. at 464-65, p


Of course, none of this establishes as a matter of law that 
Northwest's bargaining position was correct or that ratifica- tion was
unnecessary to settle the dispute. But it does  support the district
court's conclusion that, unlike Goclowski,  this was not a case where
"the employer ... knowingly  implemented an unratified agreement that
was an obvious  alteration of the terms of the collective bargaining
agree- ment." Davenport, 981 F. Supp. at 9 n.2; cf. Goclowski, 571 




__________

n 8 Even on appeal, the IBT concedes that "[t]he IBT constitution  does
not require that settlements of grievances arising under a  CBA
[collective bargaining agreement] be submitted for member- ship
ratification." IBT Br. at 7 (emphasis omitted). It also con- cedes
that the Bridge Agreement "grew out of ... a dispute  between
[Northwest] and Local 2000 over the proper interpretation  of the
underlying" collective bargaining agreement. Id. It con- tends,
however, that the Agreement "did not resolve" that dispute  and
instead "effected a series of amendments to the underlying  CBA."


F.2d at 760 ("Plaintiffs have set forth far more than a mere 
disagreement with Union officials over the meaning of the  Union's
constitution."). The fact that the IBT itself described  plaintiffs'
position as no more than "colorable" seriously un- dermines its
current contention that the employer should  have assessed that
position as "obviously" correct. Indeed,  given the conclusion of the
Local's president that ratification  was unnecessary, it would have
been problematic for North- west to have refused to implement the
agreement without  ratification. See Moreau v. James River-Otis, Inc.,
767 F.2d  6, 10 (1st Cir. 1985) ("Management should neither be allowed
 nor required to scrutinize internal union policies and practices  too
closely, and, indeed, it may commit an unfair labor  practice if it
delves too deeply into the union's affairs.");  Central States
Southeast & Southwest Areas Pension Fund  v. Kraftco, Inc., 799 F.2d
1098, 1113 & n.19 (6th Cir. 1986); cf.  Teamsters Local Union No. 251
and McLaughlin & Moran,  Inc., 299 N.L.R.B. 30, 32 (1990) ("[A]n
employer may not  lawfully refuse to sign a contract on the basis that
the union's  ratification procedures were not in accordance with the
re- quirements of its constitution and bylaws.").


The conclusion that a ratification requirement was not  "obvious" is
further supported by a history in which North- west and Local 2000 had
settled numerous contract interpre- tation disputes via side-letter
agreements signed by the Local  2000 president without ratification by
the membership. As  Retrum explained, these letters "typically
resolve[d] some  dispute between Local 2000 or its predecessors and
North- west Airlines concerning the proper interpretation or applica-
tion of the Collective Bargaining Agreement," and had never  been
challenged as not binding because they had not been  ratified. App.
306-07. While these letter agreements were  not as far-reaching as the
Bridge Agreement, many did  interpret substantive collective
bargaining agreement provi- sions. This established practice of
settling disputes without  ratification undermines plaintiffs'
contention that Northwest  should have known Retrum lacked authority
to enter into a  binding agreement without ratification. See Central
States,  799 F.2d at 1114 ("[T]he union's entry into and compliance 


with [two] prior letter agreements constituted representations  by the
union to the employer that union officials were autho- rized to enter
into side letter agreements ... without ratifica- tion."); cf. NLRB v.
International Union of Elevator Con- structors, Local No. 8, 465 F.2d
974, 975 n.1 (9th Cir. 1972)  ("When a union representative indicates
that he has authority  to enter into a binding agreement without
membership ratifi- cation, and there is an established history of
entering into  bargaining agreements without such ratification, the
[u]nion  cannot later contend that ratification is necessary.").


Finally, plaintiffs argue that Northwest knew or should  have known
that ratification of the Bridge Agreement was  required because the
union had insisted on a ratification vote  when Northwest made an
earlier attempt to implement high- er value turnarounds in 1992. The
circumstances in 1992,  however, were considerably different. Like the
1993 collec- tive bargaining agreement, the agreement in effect in
1992  set flight and duty time restrictions. But unlike the 1993 
agreement, the earlier collective bargaining agreement did  not
provide that "[a]ny changes or modifications in the FARs  shall be
applied to Flight Attendants." Accordingly, in 1992  it was clear that
Northwest could implement HVTs only by  amending the collective
bargaining agreement. Under the  1993 agreement, by contrast,
Northwest could reasonably  argue that under the new FARs it had
authority to imple- ment HVTs without amending the agreement.


In sum, even assuming that an employer can be implicated  in a union's
breach of the duty of fair representation merely  by implementing an
agreement with knowledge of that  breach, we cannot find clearly
erroneous the district court's  conclusion that Northwest had no such
knowledge. Accord- ingly, we agree with the district court that
plaintiffs are not  likely to succeed on the merits of this claim
against the  airline.


B


Plaintiffs also appeal the district court's rejection of their  claim
under LMRA s 301, 29 U.S.C. s 185(a). See supra 


note 3. That section provides both jurisdiction and a cause of  action
for suits alleging a violation of a contract between an  employer and
a labor organization, or between labor organiza- tions. See Textile
Workers Union v. Lincoln Mills, 353 U.S.  448, 456 (1957); see also
Local 14 Nursing Home Pension  Fund v. Demisay, 508 U.S. 581, 590
(1993); Franchise Tax  Bd. v. Construction Laborers Vacation Trust,
463 U.S. 1, 23  (1983). Plaintiffs contend that s 301 subjects
Northwest to  "accountability for knowingly benefitting from [the]
union's  violation of members' ratification rights." Pl. Br. at 41.


As the district court pointed out, however, LMRA s 301  does not apply
to this case. The LMRA applies only to  "contracts between an employer
and a labor organization  representing employees in an industry
affecting commerce as  defined in this chapter, or between any such
labor organiza- tions." 29 U.S.C. s 185 (emphasis added). "Employer"
is  defined in the chapter to exclude "any person subject to the 
Railway Labor Act," id. s 152(2), and "employee" is defined  to
exclude "any individual employed by an employer subject  to the
Railway Labor Act," id. s 152(3).9 As a "common  carrier by air,"
Northwest is subject to the RLA. 45 U.S.C.  s 181. Accordingly, as the
district court held, a cause of  action does not lie against Northwest
under section 301. See  Brotherhood of Teamsters Local No. 70 v.
Western Pac. R.R.,  809 F.2d 607, 609 (9th Cir. 1987); Steffens, 797
F.2d at 445  n.2; United Indep. Flight Officers, Inc., 756 F.2d at
1283;  Fechtelkotter v. Air Line Pilots Ass'n, Int'l, 693 F.2d 899, 
902-03 (9th Cir. 1982); Raus, 663 F.2d at 794; Brotherhood  of
Locomotive Firemen v. United Transp. Union, 471 F.2d 8,  9 (6th Cir.




__________

n 9 29 U.S.C. s 152 itself provides definitions only for use in 
subchapter II of Chapter 7, Title 29 of the United States Code.  LMRA
s 301, 29 U.S.C. s 185, is in subchapter IV. 29 U.S.C.  s 142(3),
however, provides that "employer," "employee" and "labor 
organization" "shall have the same meaning" when used throughout 
Chapter 7 "as when used in subchapter II."


10 Nor are we persuaded by plaintiffs' contention that Wooddell  v.
International Brotherhood of Electrical Workers, Local 71, 502 


C


Neither plaintiffs' original complaint, nor their amended  complaint,
expressly stated any cause of action against North- west. Nonetheless,
the district court liberally construed the  complaint to assert the
same causes of action against North- west as it asserted against the
Local and the IBT. We have  accepted that characterization for
purposes of this appeal, and  have reached the same conclusions as the
district court  regarding the validity of those claims.


Plaintiffs' appellate briefs offer three additional lines of  argument.
But not only do those arguments fail to state a  cause of action
against Northwest, they fail to articulate a  cause of action against
any party.


First, plaintiffs point to 28 U.S.C. s 1337 as a statute that  subjects
Northwest to accountability for benefitting from the  union's asserted
violation of its members' ratification rights.  Pl. Br. at 41. Section
1337, however, merely grants district  courts "jurisdiction of any
civil action or proceeding arising  under any Act of Congress
regulating commerce or protect- ing trade and commerce against
restraints and monopolies."  28 U.S.C. s 1337(a) (emphasis added).
Plaintiffs have identi- fied no Act of Congress--other than those
discussed above-- under which such a cause of action might arise.




__________

n U.S. 93 (1991), overrules this line of authority. Wooddell did not 
address the application of section 301 to actions involving employers 
and employees subject to the RLA. Rather, Wooddell merely held,  in a
case in which all of the parties were subject to the LMRA, that  a
union constitution is a "contract between labor organizations" and 
hence covered by section 301. See id. at 98-100. Here, although 
plaintiffs' claim does involve such a contract, one of the parties--
Local 2000--is not a "labor organization" within the meaning of 
section 301 because its members are employed by an employer  subject
to the RLA. See 29 U.S.C. ss 152(2), (3), (5); Brotherhood  of R.R.
Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 376- 77 (1969);
Fechtelkotter, 693 F.2d at 902-03; Brotherhood of Loco- motive
Firemen, 471 F.2d at 9; Bell v. Chesapeake & Ohio Ry., 58  F.R.D. 566,


Second, plaintiffs contend that Northwest may be joined in  their
action against the Local and the IBT under Rule 19 of  the Federal
Rules of Civil Procedure, which provides for the  "joinder of persons
needed for just adjudication." Northwest  is a necessary party,
plaintiffs contend, because its presence  is necessary for the court
to set aside the Bridge Agreement.  But while Rule 19 provides for
joinder of necessary parties, it  does not create a cause of action
against them. See Vieux  Carre Property Owners, Residents & Assocs.,
Inc. v. Brown,  875 F.2d 453, 457 (5th Cir. 1989) ("[I]t is implicit
in Rule 19(a)  itself that before a party will be joined ... as a
defendant the  plaintiff must have a cause of action against it.");
cf. 4 James  W. Moore, Moore's Federal Practice s 19.04[1][a] (3d ed. 
1998) ("[Rule 19] governs only the procedural propriety of  joinder
and, as a rule of procedure, cannot affect the jurisdic- tion or venue
of the federal court."). It is not enough that  plaintiffs "need" an
injunction against Northwest in order to  obtain full relief. They
must also have a right to such an  injunction, and Rule 19 cannot
provide such a right. See 28  U.S.C. s 2072(b) ("[The Federal Rules of
Civil Procedure]  shall not abridge, enlarge or modify any substantive
right.");  Postal Workers, 665 F.2d at 1110 (holding that plaintiffs
may  not use Rule 19 to join employer in action against union  unless
plaintiffs show employer "to have been implicated in  the union's


Finally, the plaintiffs' briefs discuss at length the conten- tion that
President Retrum lacked both actual and apparent  authority to sign
the Bridge Agreement without membership  ratification. That
discussion, however, floats free of a tether 




__________

n 11 Plaintiffs rely primarily on Evans v. Sheraton Park Hotel,  503
F.2d 177 (D.C. Cir. 1974), which they contend permitted a  plaintiff
to join an international union in her civil rights action  against
sex-segregated locals, even though the international had "no  part in
the wrongdoing." Pl. Br. at 31. Far from having "no part  in the
wrongdoing," however, we held that the international had  "maintained"
the sex-segregated locals. Id. at 184. Moreover, the  plaintiff in
Evans, unlike the plaintiffs in the present case, had a  cause of
action (under 42 U.S.C. s 2000e-2(c)) against the party she  sought to
join under Rule 19. See id. at 184-86.


to any specified cause of action against Northwest. It may be  that
plaintiffs intend that discussion to bolster their breach of  duty
argument. As noted above, however, even on plaintiffs'  own theory
they must establish not merely that Retrum  lacked authority (actual
or apparent) to sign the Agreement,  but that it was "objectively
clear" or "obvious" to Northwest  that he did. It may also be that
plaintiffs intend their  actual/apparent authority discussion to
support their LMRA  s 301 claim. But even if Retrum lacked authority
to sign the  Bridge Agreement, that would not alter the fact that
section  301 is inapplicable to employers and labor organizations sub-


The plaintiffs may also intend their argument that Retrum  lacked
actual or apparent authority to itself constitute some  kind of cause
of action against Northwest. If that is what  they intend, however,
they have failed to allege anything  remotely resembling such a claim
in either their initial or  amended complaints. See App. 1-9, 461-69.
It is far too late  in the day to do so now. See Hoai v. Vo, 935 F.2d
308, 315  (D.C. Cir. 1991). Accordingly we find nothing in plaintiffs'
 discussion of Retrum's authority to upset the district court's 
conclusion that plaintiffs are unlikely to prevail on the merits 
against Northwest.


IV


In light of our affirmance of the district court's conclusion  that the
plaintiffs are not likely to succeed on the merits, it  would take a
very strong showing with respect to the other  preliminary injunction
factors to turn the tide in plaintiffs'  favor. See Murrow Furniture
Galleries v. Thomasville Fur- niture Indus., 899 F.2d 524, 527 (4th
Cir. 1989). Plaintiffs  have not made such a showing.


Although they do not press a public interest argument on  appeal,12
plaintiffs do contend that they will suffer irreparable 




__________

n 12 Plaintiffs initially contended before the district court that 
there were "health and safety reasons" for granting a temporary 


injury in the absence of an injunction. Their principal con- tention
is that the HVTs increase the flight time required of  flight
attendants in a given duty period, while at the same  time eliminating
attendants' per diem pay and hotel allow- ances because overnight
stays are no longer required on such  trips. Northwest replies that
the attendants serving on such  flights are those who affirmatively
seek them because the  turnarounds permit completion of a month's work
in fewer  work days. This dispute is not important, however, because 
the injury plaintiffs urge is in any event not irreparable. If 
plaintiffs ultimately succeed on the merits, this kind of injury  can
be remedied with money damages. See Sampson v.  Murray, 415 U.S. 61,
90 (1974) ("[T]he temporary loss of  income, ultimately to be
recovered, does not usually consti- tute irreparable injury.").


Plaintiffs also contend that implementation of the Bridge  Agreement
has caused the union irreparable injury by depriv- ing it of a
valuable bargaining chip in its current negotiations  for a new
collective bargaining agreement. See supra note 1.  Any such injury,
however, is mitigated by the Bridge Agree- ment's express provision
that the Agreement remains in  effect only "for the duration of the
current negotiations," and  "that the terms of this Agreement shall
operate without  prejudice to either parties' [sic] position in any
subsequent  negotiation or arbitration." App. 67. Indeed, in reviewing
 the issue, the IBT General President found this to be the  "most
significant element of the settlement." Id. at 63.  Moreover, if there
were any such injury, it would have  reciprocal application to
Northwest: whatever bargaining  advantage the union would lose to
Northwest in the absence  of an injunction, Northwest would lose to
the union in the  presence of one. See Serono Lab., 158 F.3d at




__________

n restraining order. They ultimately conceded, however, that this 
contention was "not supported on this record." App. 452-53.


13 Plaintiffs also contend that the deprivation of their right of 
ratification itself constitutes irreparable injury, even apart from
the  collateral consequences discussed above. But this contention is 
inextricably linked to the merits: plaintiffs suffer such an injury 


In sum, because plaintiffs have demonstrated neither likeli- hood of
success on the merits nor irreparable injury, the  district court did
not abuse its discretion in denying the  motion for a preliminary
injunction.


V


Finally, the IBT suggests as an alternative disposition that  we vacate
the district court's order and remand the case for  consideration of
its cross-claim for an injunction restoring the  status quo prior to
the Bridge Agreement.


Under the Railway Labor Act, an adjustment board es- tablished by the
employer and the unions representing its  employees has exclusive
jurisdiction over "minor disputes,"  defined as those arising "out of
grievances or out of the in- terpretation or application" of existing
collective bargaining  agreements.14 Consolidated Rail Corp. v.
Railway Labor  Executives' Ass'n, 491 U.S. 299, 303 (1989) (quoting 45
 U.S.C. s 153 First (i)); see also id. at 304 n.4 (noting airline 
industry provision of 45 U.S.C. s 184); International Ass'n  of
Machinists v. Central Airlines, 372 U.S. 682, 687-89  (1963). In the
case of so-called "major disputes," however,  the district courts have
jurisdiction to enjoin violations of  the status quo pending the
completion of required bargain- ing and mediation procedures.
Consolidated Rail Corp., 491  U.S. at 302-03; see 45 U.S.C. ss 152
Seventh, 155, 156.  "Major disputes" are defined as those relating to
"the for- mation of collective agreements or efforts to secure them. 
They arise where there is no such agreement or where it is  sought to
change the terms of one, and therefore the issue  is not whether an
existing agreement controls the controver- sy." Consolidated Rail
Corp., 491 U.S. at 302 (quoting  Elgin, Joliet & E. Ry. v. Burley, 325




__________

n only if they in fact have such a right, a proposition they have not 
established.


14 Suits for breach of the duty of fair representation are an 
exception. See Glover v. St. Louis-San Francisco Ry., 393 U.S.  324,
328-29 (1969); Raus, 663 F.2d at 794.


The IBT contends that the present case concerns a "major  dispute," and
that it is entitled to an injunction requiring  Northwest to cease
applying the Bridge Agreement pending  completion of the required
procedures. To establish that  contention, the IBT must show that the
dispute is not "argu- ably justified by the terms of the parties'
collective- bargaining agreement." Id. at 307; see Air Line Pilots
Ass'n  v. Eastern Air Lines, 869 F.2d 1518 (D.C. Cir. 1989). What-
ever the merits of the IBT's position, it does not provide  grounds
for vacating the district court order currently before  this court.
The claim advanced by the IBT is different from  those raised by
plaintiffs. Because it was not filed until after  the district court
issued its order and after the plaintiffs filed  their notice of
appeal, the court did not--and did not have an  opportunity to--rule
on the merits of the IBT's claim. On  remand, the parties will have a
chance to present their  arguments concerning this issue, and the
court will have an  opportunity to render a decision.


VI


The denial of plaintiffs' motion for a preliminary injunction  is
affirmed and the case is remanded to the district court.