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


AIR LINE PILOTS ASSN

v.

NW AIRLN INC


98-7196a

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: For more than 30 years North- west Airlines
has required newly hired pilot trainees to sign  individual employment
contracts called "Conditions of Em- ployment." In 1995 Northwest added
several new provisions  to the Conditions, including a clause under
which each trainee  agreed to binding arbitration of any claim he
might have  against Northwest for discrimination in employment.


The Air Line Pilots Association (ALPA), which is the union  that
represents Northwest pilots once they have completed  their training,
filed suit claiming that the carrier violated the  Railway Labor Act,
45 U.S.C. s 151 et seq., by requiring  individual trainees to agree to
the Conditions without first  having bargained with ALPA over them.
The district court  granted partial summary judgment for each party;
the court  enjoined Northwest, pending completion of the bargaining 
and mediation process, from applying the Arbitration Clause  to pilots
who have completed their training and are repre- sented by ALPA, but
refused to enjoin the use of any other of  the Conditions.


Northwest appeals, claiming that under Alexander v.  Gardner-Denver
Co., 415 U.S. 36 (1974), the arbitration of  individual statutory
claims is not a mandatory subject of  collective bargaining and that
Northwest is therefore free to  bargain individually with its
employees over the Arbitration  Clause. We agree and accordingly
reverse the judgment of  the district court on this issue.


ALPA cross-appeals, claiming the district court should have  enjoined
the use of other provisions that Northwest added to  the Conditions in
1995. Because, in light of subsequent  events, the cross-appeal does
not present a live controversy,  we dismiss ALPA's claim without
prejudice to its raising the  same claim in the future.


I. Background


The relationship between Northwest and ALPA is gov- erned by the
Railway Labor Act (RLA), 45 U.S.C. s 151 et  seq. Under RLA s 2 First,
45 U.S.C. s 152 First, the carrier  is required to "exert every
reasonable effort to make and  maintain agreements concerning rates of
pay, rules, and  working conditions." This statutory obligation to
bargain  with the union in good faith is backed up by RLA s 2 
Seventh, 45 U.S.C. s 152 Seventh, which provides that "[n]o  carrier
... shall change the rates of pay, rules, or working  conditions of
its employees, as a class as embodied in agree- ments except in the
manner prescribed in such agreements or  in [s 6 of the RLA]." In
other words, if the carrier is unable  to reach agreement with the
union on changing a rate of pay,  rule, or working condition, then it
must maintain the status  quo until it has satisfied the multi-step
process of negotiation,  mediation, arbitration, and cooling-off
required under RLA  s 6, 45 U.S.C. s 156. See Detroit & Toledo Shore
Line R.R.  Co. v. United Transportation Union, 396 U.S. 142, 149
(1969)  (describing negotiation process under s 6 as "almost intermi-
nable"). If at the end of that process the parties have not  reached
an agreement, then the employer may unilaterally  implement its
proposal and the union may resort to economic  self-help to resist the


Matters that are "directly related to 'rates of pay, rules,  and
working conditions'," and may therefore trigger the  obligations of
RLA s 2 First and Seventh, are denominated  "mandatory subject[s] of
collective bargaining," a phrase  courts have borrowed from case law
arising under the Nation- al Labor Relations Act. Japan Air Lines Co.
v. Internation- al Ass'n of Machinists, 538 F.2d 46, 52 (2d Cir.
1976). If a  carrier and a union have a dispute over a proposed change
to  a mandatory subject of bargaining, then the union can get an 
injunction prohibiting the carrier from unilaterally imple- menting
the change before completing the lengthy negotiation  process set out
in s 6. On the other hand, if the dispute is  over a non-mandatory
subject, then the carrier may unilater- ally implement the change
unless limited by an existing  collective bargaining agreement


A. Northwest's Practice, 1966-97


ALPA has represented the pilots of Northwest Airlines in  collective
bargaining for nearly 60 years. When a pilot first  begins his
training with Northwest, he is not represented by  ALPA or by any
other union. When the pilot completes his  training and enters into
"revenue service" as a probationary  employee, however, he immediately
becomes a member of the  bargaining unit represented by ALPA.


As early as 1966 Northwest unilaterally began to require  that each
trainee pilot agree to the Conditions as part of his  contract of
employment. The earliest known Conditions in- cluded provisions
covering such matters as the trainee's pay,  permission to use his
likeness in promotions, and the assign- ment of rights to anything he
might invent. Although train- ees are not represented by ALPA when
they agree to the  Conditions, some of the Conditions either expressly
or implic- itly continue to apply for as long as the signatory remains
 employed as a pilot with Northwest, that is, even after the  pilot
becomes a member of the bargaining unit represented  by ALPA.


Over the course of three decades Northwest made numer- ous changes to
the Conditions without consulting ALPA. In  1995 the airline added an
Arbitration Clause requiring em- ployees to submit to binding
arbitration all claims against it  arising from the employment
relationship. Of particular  relevance to this appeal, the Arbitration
Clause specifically  requires binding arbitration of statutory
employment discrim- ination claims brought under "the Minnesota Human
Rights  Acts, Title VII of the Civil Rights Act, the Age
Discrimination  in Employment Act, the Americans with Disabilities
Act, or  any other state or federal law prohibiting employment dis-
crimination" (citations omitted). Also in 1995, Northwest 
unilaterally introduced other new Conditions: (1) setting the  pilot's
monthly salary during the probationary period, when  he has completed
his training and is represented by ALPA;  (2) requiring the pilot to
submit to a medical examination if  Northwest has reason to believe he
is no longer able to  perform his essential job functions; (3)


Northwest may change various working conditions at its  option; and (4)
acknowledging that failure to comply with  company rules is a ground
for termination.


B. ALPA's Objection, 1997-Present


In 1997 Northwest notified ALPA that it was terminating a  probationary
pilot and attached to the notice a copy of the  Conditions he had
signed. ALPA, which claims that this was  the first it had learned of
the Conditions, demanded that  Northwest cease requiring trainee
pilots to agree to them and  that it inform each pilot who had signed
Conditions that they  were null and void. When Northwest refused to do
so, ALPA  filed suit in district court seeking injunctive and
declaratory  relief on the ground that Northwest had violated the RLA
by  unilaterally implementing the Conditions, which ALPA al- leged are
individual contracts concerning mandatory subjects  of bargaining,
without first negotiating with the Union as  required by the RLA.


While the suit was pending before the district court, North- west, in
an attempt to respond to some of ALPA's concerns  regarding the 1995
Conditions, deleted three and revised one  of the provisions to which
the Union objected. In presenting  the new version (the 1997
Conditions) to ALPA, Robert  Brodin, Northwest's vice president for
labor relations, wrote:


Northwest has never interpreted or applied the Condi- tions of
Employment to operate in derogation of the  collective bargaining
agreement between Northwest and  ALPA. Northwest and ALPA both agree
that in the  event of overlap or inconsistency, the collective
bargain- ing agreement controls.


As to the Arbitration Clause in particular, however, Brodin  wrote that
"Northwest continues to believe that it has the  right to insist on
arbitration of non-contract claims as a  condition of employment for
new hires." The only significant  change Northwest made to the
Arbitration Clause was to  clarify that it does not apply to claims
arising out of the CBA  between Northwest and ALPA.


Both ALPA and Northwest moved for summary judgment  on the validity of
the Conditions. The district court first  considered whether
Northwest's use of Conditions originating  before 1995 violated the
RLA. The court held that ALPA, by  its failure to object to the
Conditions for some 30 years, had  arguably consented to them, which
if true would make use of  the Conditions an implied term of the CBA
between North- west and ALPA. Because that dispute related solely to
the  meaning of the CBA, the court held it could be resolved only  by
binding arbitration pursuant to RLA ss 2 Sixth and 3  First, 45 U.S.C.
ss 152 Sixth and 153 First.


The court concluded that ALPA had objected in a timely  fashion,
however, to the Arbitration Clause introduced in  1995, and therefore
had not acquiesced in Northwest's use of  that term. The district
court then held that the Arbitration  Clause deals with a mandatory
subject of bargaining. Be- cause the Arbitration Clause would have
worked a change  with respect to a mandatory subject and ALPA had
neither  agreed to nor acquiesced in that change, the court enjoined 
Northwest from applying the Arbitration Clause to any pilot 


The district court did not address the question whether  other clauses
ALPA claimed were newly included in the 1995  Conditions also violated
the RLA. ALPA therefore moved to  amend the court's order so as to
enjoin Northwest from  implementing those clauses but the district
court denied the  motion because of ALPA's failure to comply with
local court  rules.


II. Analysis


ALPA does not challenge the district court's determination  that
Northwest's use of Conditions originating before 1995  must be
resolved through binding arbitration. Therefore,  both Northwest's
appeal and ALPA's cross-appeal concern  only the Union's request for
an injunction against North- west's use of particular provisions that
ALPA maintains first  appeared in the 1995 Conditions.


A. Northwest's Appeal: The Arbitration Clause


Is the arbitration of statutory discrimination claims a man- datory
subject of bargaining? Northwest says not and claims  the district
court erred in enjoining its use of the Arbitration  Clause, reasoning
as follows. Under Alexander v. Gardner- Denver Co., 415 U.S. 36
(1974), a union cannot waive the right  of the employees it represents
to bring a statutory discrimi- nation claim in a judicial forum.
Because ALPA cannot agree  to such a provision, it cannot be a
mandatory subject of  bargaining. Therefore, Northwest is free to deal
directly  with its employees over the arbitration of such claims.


For its part, ALPA urges that the arbitration of statutory  claims is a
mandatory subject, and that we should therefore  affirm the district
court's judgment, for three independent  but related reasons. First,
Gilmer v. Interstate/Johnson  Lane Corp., 500 U.S. 20 (1991)
"effectively supersedes"  Gardner-Denver. If, as ALPA reads Gilmer, a
union may in  collective bargaining waive the employees' right to a
judicial  forum for a statutory discrimination claim, then there is no
 reason to doubt that the arbitration of statutory claims is a 
mandatory subject of bargaining. Second, even if Gardner- Denver is
still good law, it has no effect upon whether  arbitration of
statutory claims is a mandatory subject of  bargaining. In other
words, as the district court held, North- west must bargain with ALPA
over the Arbitration Clause  regardless whether ALPA could lawfully
agree to it because  it is directly related to "rates of pay, rules,
or working  conditions." Third, even if waiver of the right to a
judicial  forum is not a mandatory subject of bargaining because  ALPA
cannot agree to such a waiver under Gardner-Denver,  the procedural
rules for arbitration, as specified in the Arbi- tration Clause, are


In Gardner-Denver, the Supreme Court considered wheth- er an employee
who had pursued arbitration of a racial  discrimination claim under a
CBA was thereby precluded  from later asserting a Title VII claim
based upon the same  facts. 415 U.S. at 46-55. The Supreme Court held
that  "there can be no prospective waiver of an employee's rights 


under Title VII." Id. at 51. Because Title VII provides each 
individual with the right to be free of invidious discrimination, 
"the rights conferred can form no part of the collective- bargaining
process since waiver of these rights would defeat  the paramount
congressional purpose behind Title VII." Id.  Therefore, although the
union could and did prospectively  waive the employee's right to sue
upon (rather than arbitrate)  his claim of discrimination in violation
of the CBA, the  employee's resort to arbitration of this claim did
not preclude  him from suing upon his statutory claim of
discrimination.  See id. at 51-52.


The Supreme Court also rejected the suggestion that a  court should
dismiss a Title VII claim if the facts underlying  it had already been
the subject of arbitration under a CBA  that prohibited, and provided
a remedy for, the discrimina- tion. According to the Court, arbitral
processes were inferior  to judicial processes for protecting
statutory rights, and the  Congress intended the federal courts to
exercise final respon- sibility over Title VII claims. See id. at
56-59. The Court  was particularly concerned that a union, which
ordinarily  controls the arbitration of an employee's claim, might, if
 allowed, compromise the would-be Title VII plaintiff's statuto- ry
rights: "In arbitration, as in the collective-bargaining  process, the
interests of the individual employee may be  subordinated to the
collective interests of all employees in the  bargaining unit." Id. at


In the early 1980s the Supreme Court twice applied the  reasoning of
Gardner-Denver beyond the context of Title  VII. In Barrentine v.
Arkansas-Best Freight System, Inc.,  450 U.S. 728 (1981), employees
had filed suit under the Fair  Labor Standards Act after having lost
in arbitration on a  contractual claim arising from the same facts.
The employer  argued that the employees' union had waived their right
to  bring the FLSA claim in court, noting that the CBA required 
employees to arbitrate "any controversy" and that the em- ployees had
in fact pursued this matter to arbitration. Id. at  736. The Court
rejected this argument:


[T]he FLSA rights petitioners seek to assert in this  action are
independent of the collective bargaining pro- cess. They devolve on
petitioners as individual workers,  not as members of a collective
organization. They are  not waivable. Because Congress intended to
give indi- vidual employees the right to bring their minimum-wage 
claims under the FLSA in court, and because these  congressionally
granted FLSA rights are best protected  in a judicial rather than in
an arbitral forum, we hold  that petitioners' claim is not barred by
the prior submis- sion of their grievances to the contractual dispute-
resolution procedures.


Id. at 745. In McDonald v. City of West Branch, 466 U.S.  284 (1984),
the Supreme Court rejected the employer's argu- ment that an
employee's s 1983 claim should be dismissed  because he had already
pursued to arbitration under the CBA  a claim based upon the same
facts. The Court premised its  holding upon two factors: the
inadequacy of arbitration for  the enforcement of individual statutory
rights, and the inten- tion of the Congress that s 1983 be judicially
enforced. See  id. at 289-90.


In light of the Court's broad pronouncement in Gardner- Denver that
"there can be no prospective waiver of an  employee's rights under
Title VII," and the application of this  principle to other federal
statutes in Barrentine and Mc- Donald, many courts concluded that the
reasoning of  Gardner-Denver applied to still other federal employment
 statutes, see Brisentine v. Stone & Webster Engineering  Corp., 117
F.3d 519, 526 (11th Cir. 1997) (Americans with  Disabilities Act);
Cooper v. Asplundh Tree Expert Co., 836  F.2d 1544, 1553 (10th Cir.
1988) (Age Discrimination in  Employment Act (ADEA)), and held that
Gardner-Denver  precluded prospective waiver of the right to sue even
by the  individual employee, see Alford v. Dean Witter Reynolds, 
Inc., 905 F.2d 104, 107 (5th Cir. 1990) (Title VII), vacated for 
reconsideration, 500 U.S. 930 (1991), in light of Gilmer;  Utley v.
Goldman Sachs & Co., 883 F.2d 184, 187 (1st Cir.  1989) (Title VII);
Nicholson v. CPC Int'l Inc., 877 F.2d 221,  229 (3d Cir. 1989) (ADEA),
disapproved in Gilmer, 500 U.S. 


20, 24 n.1 (1991); Swenson v. Management Recruiters Int'l,  Inc., 858
F.2d 1304, 1306 (8th Cir. 1988) (Title VII).


In 1991, however, the Court staked out a limit to the  principle
announced in Gardner-Denver. In Gilmer v. Inter- state/Johnson Lane
Corp., 500 U.S. 20 (1991), the Court held  that a claim arising under
the ADEA was validly made  subject to binding arbitration by an
agreement between the  employer and the individual (non-union)
employee--a result  in some tension with the broad pronouncement in
Gardner- Denver that "there can be no prospective waiver of an 
employee's rights under Title VII." 415 U.S. at 51. The  Court began
by noting that under the Federal Arbitration  Act (FAA) an agreement
to arbitrate individual statutory  rights is enforceable unless the
Congress intended to pre- clude waiver of access to a judicial forum
for vindication of  that right. See id. at 26. The text and
legislative history of  the ADEA reflect no such intent, and the Court
rejected the  argument that waiver should be precluded because
arbitra- tion is an inferior mechanism for resolving individual
statuto- ry claims--an argument to which the Court had given some 
weight in Gardner-Denver, Barrentine, and McDonald, see  id. at 34
n.5. The Court expressly distinguished those cases  as follows:


First, [they] did not involve the issue of the enforceabili- ty of an
agreement to arbitrate statutory claims. Rath- er, they involved the
quite different issue whether arbi- tration of contract-based claims
precluded subsequent  judicial resolution of statutory claims. Since
the employ- ees there had not agreed to arbitrate their statutory 
claims, and the labor arbitrators were not authorized to  resolve such
claims, the arbitration in those cases under- standably was held not
to preclude subsequent statutory  actions. Second, because the
arbitration in those cases  occurred in the context of a
collective-bargaining agree- ment, the claimants there were
represented by their  unions in the arbitration proceedings. An
important  concern therefore was the tension between collective 
representation and individual statutory rights, a concern  not
applicable to the present case. Finally, those cases  were not decided


cases provide no basis for refusing to enforce Gilmer's  agreement to
arbitrate his ADEA claim.


Id. at 35.


Thus, Gilmer establishes that an individual employee may  himself
validly agree in advance to binding arbitration of a  statutory claim
he may later have against his employer. See  Cole v. Burns Int'l
Security Servs., 105 F.3d 1465, 1478 (D.C.  Cir. 1997) (citing Gilmer
for the "general rule [that] statutory  claims are fully subject to
binding arbitration, at least outside  of the context of collective
bargaining"). The Court in Gil- mer did not, however, address the
continuing vitality of the  statement in Gardner-Denver that "the
rights conferred [by  Title VII] can form no part of the collective
bargaining  process." 415 U.S. at 51; see also Wright v. Universal 
Maritime Serv. Corp., 525 U.S. 70, 119 S. Ct. 391, 396 (1998) 
(raising but not resolving the question "whether or not Gard-
ner-Denver's seemingly absolute prohibition of union waiver  of
employees' federal forum rights survives Gilmer").


ALPA suggests that Gilmer "effectively supersedes"  Gardner-Denver and
permits a union to waive the employees'  right to a judicial forum for
statutory claims. The Fourth  Circuit and some district courts agree,
see Austin v. Owens- Brockway Glass Container, Inc., 78 F.3d 875, 885
(4th Cir.  1996); see, e.g., Almonte v. Coca-Cola Bottling Co., 959 
F. Supp. 569, 573-74 (D. Conn. 1997), prematurely we think.


Whatever the Supreme Court said--or, more precisely,  refrained from
saying--in Wright, we do not understand the  Court in Gilmer to have
overruled Gardner-Denver. Rather,  the Court expressly distinguished
that case, which strongly  implies that it remains the law within its
field of application.  We therefore leave to the Court itself the
prerogative of  overruling its own precedent (if it will); we apply
the law as it  stands. See Rodriguez de Quijas v. Shearson/American
Ex- press Inc., 490 U.S. 477, 484 (1989).


We see a clear rule of law emerging from Gardner-Denver  and Gilmer:
Unless the Congress has precluded his doing so,  an individual may
prospectively waive his own statutory right  to a judicial forum, but
his union may not prospectively waive  that right for him. All of the
circuits to have considered the 


meaning of Gardner-Denver after Gilmer, other than the  Fourth, are in
accord with this view. See Albertson's, Inc. v.  United Food & Com.
Workers Union, 157 F.3d 758, 761-62  (9th Cir. 1998); Penny v. United
Parcel Service, 128 F.3d  408, 413-14 (6th Cir. 1997); Brisentine v.
Stone & Webster  Engineering Corp., 117 F.3d 519, 526 (11th Cir.
1997); Pryn- er v. Tractor Supply Co., 109 F.3d 354, 365 (7th Cir.
1997); cf.  Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1453 (10th
Cir.  1997) (individual represented by union need not exhaust 
remedies under CBA before filing statutory claim in court);  Varner v.
National Super Market, Inc., 94 F.3d 1209, 1213  (8th Cir. 1996)
(same); Tran v. Tran, 54 F.3d 115, 117-18 (2d  Cir. 1995) (same); see
also Cole v. Burns Int'l Security  Servs., 105 F.3d 1465, 1478-79
(D.C. Cir. 1997) ("It is plain  that the Supreme Court saw a critical
distinction in the  situations raised by Gardner-Denver and Gilmer:
Gardner- Denver involved arbitration in the context of collective bar-
gaining .... Gilmer, on the other hand, raised an individual  employee
claim outside the collective bargaining context").


Thus, even after Gilmer, Gardner-Denver stands as a  firewall between
individual statutory rights the Congress  intended can be bargained
away by the union, see, e.g.,  Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 706-07 &  n.11 (1983) (union may waive officers' statutory
right to be  free of discrimination, such as enhanced discipline,
based  upon union activity), and those that remain exclusively within 
the individual's control. Absent congressional intent to the 
contrary, a union may not use the employees' individual  statutory
right to a judicial forum as a bargaining chip to be  exchanged for
some benefit to the group; the statutory right  "can form no part of
the collective bargaining process."  Gardner-Denver, 415 U.S. at 51.
Applying this rule to the  facts of the present case, ALPA could not
lawfully agree to  the Arbitration Clause because it would effect a
waiver of the  employees' right to a judicial forum for the
vindication of  their statutory claims of discrimination in


ALPA argues, however, that even if Gardner-Denver pre- cludes it from
waiving employees' right of access to a judicial  forum for a
statutory claim, the arbitration of an  employment-related
claim--whatever the legal basis for the  claim--remains a mandatory
subject of bargaining. The 


district court agreed, holding that the Arbitration Clause is a 
mandatory subject of bargaining "regardless of whether  [ALPA] can
itself enter into arbitration agreements on behalf  of its members"
because the Clause "governs rules or condi- tions of the pilots'
employment with Northwest." In effect,  the district court held that
an employer has to bargain over a  proposal concerning rates of pay,
rules, or working conditions  that the union is not authorized to
accept and the employer  could not enforce.


We cannot agree. The "essence of collective bargaining is  a notion of
mutuality, that if a subject is brought up each side  has at least the
authority both to offer and to concede."  Brotherhood of Railroad
Trainmen v. Akron & Barberton  Belt R.R. Co., 385 F.2d 581, 603 (D.C.
Cir. 1967). It follows  that a proposal to trade that which is not
one's to give cannot  be a mandatory subject of bargaining. See
Brotherhood of  R.R. Trainmen, 385 F.2d at 603-04 (proposal to bargain
over  effects of job terminations, normally a mandatory subject,  held
non-mandatory because union "could not bargain away  any part of the
rights that accrued to employees under the  [arbitral] Award");
Southern Pacific Co. v. Switchmen's Un- ion, 356 F.2d 332, 334-35 (9th
Cir. 1966) (proposal to redefine  certain work as within particular
craft held non-mandatory  because railroad could not lawfully agree to
it: "These then  are not such disputes as can be resolved by
capitulation of the  railroad and thus are not the proper subject [for
bargaining  under RLA] section 6"). Because Gardner-Denver precludes 
ALPA from agreeing to binding arbitration of individual  statutory
claims, we conclude that the Arbitration Clause is  not a mandatory


ALPA argues next that the district court properly enjoined  Northwest's
implementation of the Arbitration Clause even if  the waiver of
employees' right to a judicial forum for statuto-




__________

n * Although Gardner-Denver suggests that the arbitration of indi-
vidual statutory claims is an impermissible subject of bargaining,  we
need not decide today whether it is an impermissible or a  permissible
subject; the only issue presented is whether it is a  mandatory
subject. See Brotherhood of Railroad Trainmen, 385  F.2d at 604


ry claims is not a mandatory subject, because ALPA can still  lawfully
bargain over the procedures to be used in arbitration.  The Union
claims these procedures are a mandatory subject  of bargaining because
the remedy awarded to a successful  complainant in the arbitration of
a discrimination claim could  affect the "rates of pay, rules, or
working conditions" of all  employees, for example by restructuring
their seniority  rights.


We fail to see how a remedy imposed by an arbitrator in a  proceeding
involving only the employer and an individual  employee could have any
adverse effect upon the working  conditions of the employees in the
bargaining unit. Although  an arbitral award could indeed subject the
employer to an  obligation inconsistent with the CBA, that is not the
Union's  problem but the employer's: the employer simply cannot  make
any unilateral change respecting a mandatory subject  of bargaining
without first negotiating with the Union as  required under the RLA,
and a private arbitration between  the employer and an individual
employee does not alter this  rule of law.


In any event, as we read Gardner-Denver and Gilmer,  ALPA can have no
role in negotiating obligatory procedural  rules for arbitration of
individual statutory claims. Read  together, those cases establish
that only the individual can  determine in what forum he will
vindicate his statutory rights,  and this choice should not be
burdened by the majoritarian  concerns that motivate a union. If a
union has a mandatory  role in negotiating the terms that will apply
to arbitration,  then it could also contrive to discourage the
exercise of the  employee's right to choose a forum.


We conclude that the Arbitration Clause is not a mandatory  subject of
bargaining under the RLA. Therefore, Northwest  is not required by RLA
s 2, 45 U.S.C. Sec. 152, to negotiate with  ALPA over it. Instead,
Northwest may, as it did, propose  the Arbitration Clause directly to
each individual employee.  While it has long been clear that "members
[of a bargaining  unit] cannot bargain individually on behalf of
themselves as to  matters which are properly the subject of collective
bargain- ing," Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192


(1944), it is just as well-established that an employee repre- sented
by a union may bargain directly with his employer  over a
non-mandatory subject of collective bargaining as long  as the
proposed individual contract "is not inconsistent with a  collective
agreement" or somehow implicated in an unfair  labor practice, J.I.
Case Co. v. NLRB, 321 U.S. 332, 339  (1944).


Here, the Arbitration Clause applies only to the statutory  rights of
individuals and is not inconsistent with the CBA;  nor is Northwest
using its direct dealings with the employees  either to change
anyone's obligations under the CBA or to  avoid dealing with the union
on a mandatory subject of  bargaining. Under these circumstances, the
RLA is no bar  to Northwest's contracting individually with its


B. ALPA's Cross-Appeal: Other Clauses New in 1995


ALPA claims the district court erred in failing to enjoin  Northwest
from unilaterally implementing provisions other  than the Arbitration
Clause that the carrier added to the 1995  Conditions and that concern
mandatory subjects of bargain- ing. Northwest counters that ALPA's
cross-appeal does not  present a ripe controversy in light of the
airline's adoption of  the scaled-down 1997 Conditions and its
subsequent represen- tations concerning their application. For the
reasons stated  below, we agree with Northwest and dismiss ALPA's
cross- appeal for want of a ripe controversy.


In 1997 Northwest dropped three of the clauses in the 1995  Conditions
about which ALPA now complains. ALPA asserts  that its challenge to
these three clauses remains ripe because  "Northwest has done nothing
... to alter or revoke the 1995  [Conditions] that have been signed by
1050 Northwest pilots,  and that still remain in effect." At oral
argument before this  court, however, Northwest deliberately and
unequivocally  represented that the 1997 Conditions supersede any
previous  Conditions, and that the three clauses deleted in 1997 will
not  be enforced against persons who signed the 1995 (or prior) 


Although we are aware that "voluntary cessation of alleged- ly illegal
conduct does not ... make the case moot," a claim  for injunctive
relief still requires "some cognizable danger of 


recurrent violation, something more than the mere possibility  which
serves to keep the case alive." United States v. W.T.  Grant Co., 345
U.S. 629, 632-33 (1953); see also Community  for Creative Non-Violence
v. Hess, 745 F.2d 697, 700-01  (D.C. Cir. 1984). ALPA's only response
to this requirement  is to say that at some time in the future
Northwest might not  honor its representation to the court. That is
insufficient to  render ALPA's requests for injunctive relief ripe at
this time.  If in the future Northwest were to enforce one of the
clauses  against a signatory employee, or were to indicate its "firm 
intention" to do so, Andrade v. Lauer, 729 F.2d 1475, 1481  (D.C. Cir.
1984), then the Union would have a ripe claim for  injunctive relief;
at present, however, "the parties have no  live dispute ... and
whether one will arise in the future is  conjectural," Anderson v.
Green, 513 U.S. 557, 559 (1995).


ALPA's only other concern is with the amended version of  the Rules of
Conduct clause in the 1997 Conditions. ALPA  objected to the Rules of
Conduct clause in the 1995 Condi- tions because it stated that failure
to comply with the compa- ny's rules and regulations "shall be grounds
for [ ] termi- nation," but termination is governed by the CBA. In
1997,  therefore, Northwest amended the Rules of Conduct provi- sion
to provide that Northwest's authority to discipline an  employee
represented by the Union is "subject to the griev- ance and
arbitration provisions of the applicable [CBA]."  This revision,
coupled with Northwest's firm representation  that it will enforce the
Rules of Conduct provision only to the  extent allowed by the 1997
Conditions, would seem to render  ALPA's claim for injunctive relief


At oral argument, however, ALPA suggested that the  revised Rules of
Conduct clause still presents a ripe contro- versy insofar as it
provides that "the Company, in its sole  discretion, may amend [its]
rules, regulations, or policies from  time to time." If Northwest ever
"in its sole discretion"  changed a rule, regulation, or policy
concerning a mandatory  subject of bargaining, then it would violate
its obligation  under the RLA to negotiate such changes with the
Union. In  response to concern over this part of the Rules of Conduct 
clause, Northwest represented to the court that, "as to man-


datory subjects of bargaining, [Northwest] cannot and will  not make
unilateral changes. Because the union has a legiti- mate interest." By
this representation Northwest acknowl- edges that the phrase "in its
sole discretion" is implicitly  qualified by the laws of the United
States, just as if the  Condition said "provided, however, that
Northwest may not  make a change concerning a mandatory subject of
bargaining  without first negotiating with ALPA as required by the 


In light of Northwest's representation, we fail to discern  any present
controversy over the Rules of Conduct clause.  The parties agree that
the clause does not affect Northwest's  obligations under the RLA to
negotiate with ALPA. North- west has not invoked the clause to make
any unilateral  change concerning a mandatory subject of bargaining,
and it  unequivocally states that it will not do so in the future. 
ALPA's claim reduces to the fear that sometime in the future 
Northwest may renege upon this representation to the court.  That
possibility is speculative at best, and in our view utterly 
implausible. But should it ever come to pass, then the doors  of the
courthouse will be open wide to ALPA.


III. Conclusion


Northwest did not violate the RLA by implementing the  Arbitration
Clause without first negotiating with ALPA. In  No. 98-7196,
therefore, we vacate the injunction the district  court entered
against Northwest. In No. 98-7202, ALPA's  cross-appeal, we do not
find a ripe case or controversy at this  time; accordingly, we dismiss
that case without prejudice to  ALPA's raising the same claim in the


It is so ordered.