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


ATLAS AIR INC

v.

AIR LINE PILOTS ASSN


99-7223a

D.C. Cir. 2000


*	*	*


Sentelle, Circuit Judge: The cockpit crewmembers em- ployed by Appellee
Atlas Air, Inc. elected to unionize, where- upon Atlas Air immediately
terminated their participation in  its profit-sharing plan. Atlas
sought a declaratory judgment  that its action was a legal
modification of status quo employ- ment conditions under the Railway
Labor Act (RLA), 45  U.S.C. s 151 et seq., and that Atlas was free to
make further  status quo changes pending the onset of collective
bargaining.  The Air Line Pilots Association, International (ALPA)
filed a  cross-claim charging that Atlas Air's maintenance and execu-
tion of a discriminatory anti-union policy violates RLA Sec- tion 2,
Third and Fourth. The district court granted sum- mary judgment for
Atlas Air on the grounds that the RLA  does not require carriers to
maintain status quo wages, work  rules, or conditions of employment.
See Atlas Air, Inc. v.  ALPA, 69 F. Supp. 2d 155, 159 (D.D.C. 1999).
The court  further held that it lacked jurisdiction to hear Atlas's
second  claim because it was insufficiently concrete. See id. at 164. 
ALPA and Atlas each appeal. Because the RLA prohibits  carriers from
interfering with, coercing, or influencing em- ployee decisions
whether to unionize, we reverse and remand  to the district court for


I. Background


A.


Atlas Air, Inc. (Atlas) is a cargo airline. Of Atlas's approxi- mately
1,100 employees, about half are cockpit crewmembers  (pilots and
flight engineers). In June 1994, Atlas announced  a new compensation
package which included profit-sharing.  Under this plan, "eligible
employees" would receive semi- annual payments based upon the
company's profits. To  ensure that employees would receive additional


the plan, Atlas set a minimum guaranteed payment of seven  percent of
annual pay. Under the plan, the definition of  "eligible employee"
excludes "those who are subject to a  collective bargaining agreement
or who have been certified by  the National Mediation Board or any
such other regulatory  agency for representation." This provision was
publicized to  Atlas employees along with information about the rest
of the  plan's terms.


ALPA began efforts to organize cockpit crewmembers at  Atlas Air
perhaps as early as 1994. See Atlas, 69 F. Supp. 2d  at 159. These
efforts intensified in 1996. On September 30,  1996, Atlas sent a
letter to all of its employees providing a  "straightforward
explanation of the profit-sharing plan." A  document enclosed with the
letter outlined the eligibility rules  and provided sample
calculations of likely benefits from the  plan. The document also
provided an explanation for the  eligibility rules, noting that the
exclusion of unionized employ- ees is "very common in unionized
organizations where the  compensation plans for unrepresented
employees are kept  separate from those of unionized employees."


On April 21, 1997, Atlas announced that it was revising the 
profit-sharing plan. In particular, for the next three years  Atlas
would guarantee eligible employees a minimum profit- sharing payment
of 10 percent of annual pay, irrespective of  profits (20 percent for
captains). Atlas's announcement of  the new plan, mailed to all
crewmembers, noted that profit  sharing would end "upon certification
of a union" and that all  employment rules and compensation
provisions, including "ex- isting and future wages and benefits" would
"become subject  to the collective bargaining process," if a union


ALPA filed its first application for a representation election  for
Atlas crewmembers in November 1997. Shortly thereaf- ter, Atlas
distributed a draft Flight Crew Policy Manual that  outlined the
profit-sharing eligibility rules. According to the  manual, "profit
sharing, including the guaranteed portion,  ceases upon certification
of a union." Draft Flight Crew  Policy Manual at 21. The draft manual
also included a chart  illustrating the guaranteed minimum payments


ees could expect so long as they remained eligible for the 
profit-sharing plan. At the time, ALPA did not question the  legality
of the eligibility provision of Atlas's profit-sharing  plan. ALPA
lost the 1997 representation election. It did  not, however, file any
objections to the election related to the  profit-sharing plan
eligibility requirements or otherwise.


ALPA and the International Brotherhood of Teamsters  each filed for a
second election in February 1999. On Febru- ary 17, Atlas sent a
letter to all crewmembers explaining the  potential consequences of
unionization. While noting that  employees have the right to choose
union representation, it  also stated that Atlas unilaterally could
change the conditions  of employment if a union were to be certified.
In bold face  type, the letter declared:


One area that will change if a union is certified is profit  sharing.
Our Profit Sharing Plan says clearly that em- ployees who have been
certified by the National Media- tion Board for representation are not
eligible for profit- sharing.... Of course, a union could choose to
bargain  for profit sharing in subsequent negotiations, but it could 
be years before any resolution is reached.


If a union is certified, you instantly lose your profit  sharing. If
anyone promises you that you can keep your  profit-sharing should a
union be certified--they're either  seriously mistaken, or they're
intentionally misleading  you.


(Emphasis in original.) The letter further noted that "[t]he  loss of
profit sharing could have a significant financial impact  on you and
your family" and included a chart detailing the  likely impact of the
plan's termination on the salaries earned  by employees of varying
levels of seniority.


In March, Atlas executives sent additional letters to crew- members
reiterating the consequences of union certification.  According to one
of the letters, Atlas wanted to ensure that  crewmembers made "an
informed decision about representa- tion, based on the financial
impact that choosing representa-


tion would have on you and your family." "So there is no 
misunderstanding," one of the letters explained, "a portion of  your
current paycheck will stop being paid if the NMB  [National Mediation
Board] certifies a union." The letter  noted that all cockpit
crewmembers stood to lose at least 10  percent of their annual pay
should they lose eligibility. Given  Atlas Air's substantial profits
in recent years, the document  noted the cost of unionization could be


Despite Atlas's letters, ALPA won the representation elec- tion held on
April 26. Two days later, the NMB certified  ALPA as the collective
bargaining representative. Upon the  announcement of the election
results, but before the NMB  certification, Atlas terminated the
profit-sharing plan for  cockpit crewmembers. The plan's termination
reduced cock- pit crewmembers' annual compensation by over 25 percent.
 The profit-sharing plan remained in place for Atlas employees 
without union representation. At the time this suit was  instituted,
Atlas and ALPA had yet to enter into any contract  negotiations.


B.


On May 5, 1999, Atlas Air filed suit seeking a declaratory  judgment
that its enforcement of the profit-sharing plan's  eligibility
requirements was lawful under the Railway Labor  Act (RLA), 45 U.S.C.
s 151 et seq., and that under the RLA  Atlas "retains the right to
make unilateral changes in the  rates of pay, rules and working
conditions of its flight deck  crewmembers while it negotiates the
terms of an initial  collective bargaining agreement with ALPA."
Complaint at  1. ALPA filed a counterclaim asserting that the
exclusionary  provisions of the profit-sharing plan constituted
unlawful  interference with the right to organize under Section 2,
Third  and Fourth of the RLA. See 45 U.S.C. s 152, Third and  Fourth.
ALPA also contended that Atlas's request for a  declaratory judgment
that Atlas could make additional unilat- eral changes in working
commitments was not ripe for adjudi- cation or, in the alternative,
that ALPA has the right under  the RLA to respond to any such changes
with a strike or  other self-help actions. ALPA also moved for a


injunction alleging that Atlas's "discriminatory conduct" was  per se
unlawful under federal labor law. Atlas responded  with a motion to
dismiss and ALPA filed a motion for  summary judgment on the
counterclaim.


On October 25, 1999, the district court entered summary  judgment on
behalf of Atlas, holding that the company did not  violate the RLA by
enforcing the eligibility provisions of the  profit-sharing plan after
ALPA was certified and before the  start of negotiations. Although
Atlas had not itself moved for  summary judgment, the trial court
entered summary judg- ment sua sponte because both parties'
submissions made  clear that there were no genuine issues of material
fact in the  case. Atlas, 69 F. Supp. 2d at 158. The court held that
the  RLA "imposes no duty to maintain the status quo in a case  such
as this where a union has been certified, but collective  bargaining
negotiations have not commenced and there is no  prior agreement
between the parties." See id. at 164.


The court dismissed Atlas's second claim for lack of subject  matter
jurisdiction. The court agreed with ALPA that a  declaratory judgment
on the lawfulness of future, unspecified  status quo changes under the
RLA did not present a justicia- ble case or controversy. Finally, the
court dismissed ALPA's  counterclaim, motion for summary judgment, and
motion for  a preliminary injunction as moot in light of its other
decisions.


ALPA appealed the court's ruling in favor of Atlas and  Atlas filed a
cross-appeal challenging the court's holding that  it lacked subject
matter jurisdiction over Atlas's broader  claims.


II. Discussion


This case comes to us on an appeal and cross-appeal from a  motion for
summary judgment. Therefore, our review of all  issues raised by
either party is de novo. See, e.g., Cone v.  Caldera, 223 F.3d 789,
793 (D.C. Cir. 2000) (court reviews  cross-motions for summary
judgment de novo); Frizelle v.  Slater, 111 F.3d 172, 176 (D.C. Cir.
1997) (grant of summary  judgment reviewed de novo); Shields v. Eli
Lilly and Co.,  895 F.2d 1463, 1466 (D.C. Cir. 1990) (same).


A. The Profit-Sharing Plan Exclusion


1. Status Quo Obligations under the RLA


Atlas Air's claim and the district court's judgment are  based on the
proposition that the Railway Labor Act imposes  no obligation upon
carriers to maintain status quo wages,  rules or working conditions
after the certification of a union  but before the onset of collective
bargaining. RLA Section 2,  Seventh, for instance, provides:


No carrier, its officers or agents shall change the rates of  pay,
rules, or working conditions of its employees, as a  class as embodied
in agreements except in the manner  prescribed in such agreements or
in section 156 of this  title.


45 U.S.C. s 152, Seventh. RLA Section 6 requires that  employers and
employee representatives "shall give at least  thirty days' written
notice of an intended change in agree- ments affecting rates of pay,
rules, or working condi- tions...." Id. s 156.


By their express terms, these so-called "status quo" provi- sions of
the Act only prohibit unilateral changes in wages or  working
conditions where there is a preexisting collective  bargaining
agreement. See Williams v. Jacksonville Termi- nal Co., 315 U.S. 386,
402-03 (1942) ("The prohibitions of s 6  against change of wages or
conditions pending bargaining and  those of s 2, Seventh, are aimed at
preventing changes in  conditions previously fixed by collective
bargaining agree- ments."); Detroit & Toledo Shore Line R.R. Co. v.
United  Transp. Union, 396 U.S. 142, 158 (1969) (status quo changes 
in working conditions prior to collective bargaining are per- missible
where there is "absolutely no prior history of any  collective
bargaining or agreement between the parties on  any matter"). As this
Court recognized in International  Ass'n of Machinists & Aerospace
Workers, AFL-CIO v.  Trans World Airlines, "no power to enjoin
unilateral changes  in working conditions by management flows from
Section 6 of  the Act in the absence of pre-existing, in place,


bargaining agreements." 839 F.2d 809, 814 (D.C. Cir. 1988).1  Other
circuits have reached the same conclusion. See Air- craft Mechanics
Fraternal Ass'n v. Atlantic Coast Airlines,  Inc., 55 F.3d 90, 93 (2d
Cir. 1995) (The RLA "simply do[es]  not impose an obligation on the
carrier to maintain the status  quo in the absence of an agreement.");
Regional Airline  Pilots Ass'n v. Wings West Airlines, Inc., 915 F.2d
1399, 1402  (9th Cir. 1990). Cf. International Ass'n of Machinists and
 Aerospace Workers v. Transportes Aereos Mercantiles Pan  Americandos,
S.A., 924 F.2d 1005, 1007 (11th Cir. 1991) (RLA  precludes status quo
changes once collective bargaining has  begun). But cf. Aircraft
Mechanics Fraternal Ass'n v. At- lantic Coast Airlines, Inc., 55 F.3d
90, 92 (2nd Cir. 1995) ("The  question presented in this lawsuit is
whether [certain unilat- eral changes in conditions of employment] are
allowed after  bargaining has commenced ... but before an agreement is
 reached. We answer the question in the affirmative.").


On the basis of these decisions the district court below  ruled that
the Railway Labor Act "imposes no duty to main- tain the status quo in
a case such as this where a union has  been certified, but collective
bargaining negotiations have not  commenced and there is no prior
agreement between the  parties." Atlas, 69 F. Supp. 2d at 164. This is
no doubt true.  Section 2, Seventh and Section 6 do not require
carriers to  maintain status quo working conditions. But, the lack of
a  status quo obligation under the RLA does not mean that any  change
in the status quo is per se legal. A carrier's action  may violate
other rights or obligations fixed by the RLA.


2. RLA Section 2, Third and Fourth


The lack of an enumerated obligation to maintain the status  quo
pending the negotiation of a collective bargaining agree- ment does
not absolve an employer from its obligation to  refrain from
activities which undermine employees' rights. 




__________

n 1 Other courts have evidenced much less willingness to review  claims
under ss 152, Third and Fourth in the post-certification  context.
See, e.g., Wightman v. Springfield Terminal Railway Co.,  100 F.3d
228, 235 (1st Cir. 1996).


The RLA bars employers from engaging in discriminatory  actions
designed to impede or inhibit employees' exercise of  their right to
organize for collective bargaining purposes.  For this reason, "the
real question" in this case "is whether  ... the carrier has
discriminated against its employees be- cause they have engaged in
activities protected by the  RLA...." Railway Labor Executives' Ass'n
v. Boston &  Maine Corp., 808 F.2d 150, 157 (1st Cir. 1986).


Section 1a(2) of the Act "forbid[s] any limitation upon  freedom of
association among employees or any denial, as a  condition of
employment or otherwise, of the rights of em- ployees to join a labor
organization." 45 U.S.C. s 151a(2).  Section 2 of the RLA fleshes out
this protection. Section 2,  Third provides that employees may select
their representa- tives "without interference, influence, or coercion"
of "any"  kind. Id. s 152, Third. Section 2, Fourth further provides 


No carrier, its officers or agents, shall deny or in any  way question
the right of its employees to join, organize,  or assist in organizing
the labor organization of their  choice, and it shall be unlawful for
any carrier to inter- fere in any way with the organization of its
employees  ... or to influence or coerce employees in an effort to 
induce them to join or remain or not to join or remain  members of any
labor organization....


Id. s 152, Fourth. "These provisions prohibit employers  from
interfering with, coercing or influencing the representa- tional
choices of workers and from interfering with the right  of employees
to organize in labor unions." ALPA v. Eastern  Air Lines, Inc., 863
F.2d 891, 893 (D.C. Cir. 1988).


In Eastern, the carrier sought to modify its flight schedule  and
furlough over 3,000 employees, the majority of whom  were represented
by ALPA or other unions. Eastern Air  Lines was in substantial
financial difficulty at the time, and  the changes would reduce its
monthly payroll expenses by  nearly $7 million. See id. at 893. The
unions challenged this  plan alleging, among other things, that it
violated Section 2,  Third and Fourth of the RLA. We rejected ALPA's


because the carrier had legitimate business motivations inde- pendent
of any effort to discourage employees from exercis- ing their rights
under the RLA, stating that "[w]orkers'  Railway Labor Act rights to
unionize are adequately protect- ed so long as management is limited
to taking only measures  that it would have taken in the absence of
any anti-union  animus." Id. at 902.


ALPA argues that Eastern is distinguishable from the  present case
because the challenged policy did not "impose a  differential impact
on union members." Id. at 903. Atlas can  make no such claim about the
profit-sharing plan eligibility  requirements or its decision to
terminate plan participation  for flight crewmembers. In addition,
ALPA contends, East- ern reaffirms precedent from other circuits that
employers  cannot make changes in status quo working conditions that 
are anti-union in motivation or effect.


ALPA argues there is a "class of anti-union acts that are  'inherently
destructive' of important employee interests, so  that 'no proof of
anti-union motivation is needed.' " Eastern,  863 F.3d at 902 (quoting
NLRB v. Great Dane Trailers, Inc.,  388 U.S. 26, 34 (1967)). Following
the Supreme Court's  teaching in Great Dane, the Sixth Circuit found
an exclusion- ary eligibility requirement for a voluntary retirement
savings  and profit-sharing plan to be "inherently destructive" of 
employee rights and per se unlawful under the National  Labor
Relations Act (NLRA). Kroger Co. v. NLRB, 401 F.2d  682, 686-89 (6th
Cir. 1968). The Sixth Circuit held that the  policy "would naturally
have some deterring effect on union  membership." Id. at 686. As a
result, the policy was deemed  facially invalid; the court required no
showing of anti-union  animus. Other courts have reached similar
conclusions under  the NLRA. See, e.g., AMF Bowling Co. v. NLRB, 977
F.2d  141, 145 (4th Cir. 1992) (termination of a severance-pay plan 
upon an employee becoming a "member of a bargaining unit"  violates
the NLRA); Melville Confections, Inc. v. NLRB, 327  F.2d 689, 691-92
(7th Cir. 1964) (exclusion of union- represented employees from
profit-sharing plan is per se  violation of the NLRA). The National
Labor Relations Board  also follows this interpretation. See, e.g., E


Corp., 305 N.L.R.B. 1119, 1119-20 (1992); AMF Bowling Co.,  303
N.L.R.B. 167, 170 (1991), enforced in relevant part, 977  F.2d 141,
145 (4th Cir. 1992); Niagara Wires, Inc., 240  N.L.R.B. 1326, 1327-28


In Eastern we did not hold the carrier's actions to be  "inherently
destructive" because there was no claim that the  policy "impose[d] a
differential impact on union members."  Eastern, 863 F.2d at 903. "The
vast majority of acts found  'inherently destructive' " have been
those, like the actions of  Atlas Air, that "discriminate solely on
the basis of union  membership." Id. at 902; see, e.g., NLRB v.
Fleetwood  Trailer Co., 389 U.S. 375 (1967) (unjustified failure to
rein- state ex-strikers held unlawful without reference to employ-
er's intent); NLRB v. Erie Resistor Corp., 373 U.S. 221  (1963) (grant
of superseniority to strike replacements and  workers coming off the
strike held inherently destructive); C.  H. Heist Corp. v. NLRB, 657
F.2d 178 (7th Cir. 1981)  (disparate treatment of union officials held
to be inherently  destructive); Kroger, 401 F.2d at 602 (action
denying union  members access to profit-sharing plan held unlawful
without  showing of anti-union animus).


As we noted above, the "inherently destructive" precedents  all arose
under the NLRA, not the RLA. While the two laws  are not equivalent,
we have interpreted the respective provi- sions barring undue employer
influence of employees as  meaning "pretty much the same thing." US
Airways, Inc. v.  NMB, 177 F.3d 985, 991 (D.C. Cir. 1999). Despite the
 statutory differences, "carefully drawn analogies from the  federal
common labor law developed under the NLRA may be  helpful in deciding
cases under the RLA." Trans World  Airlines, Inc. v. Independent Fed'n
of Flight Attendants, 489  U.S. 426, 432 (1989); see id. at 432-34
(applying NLRA  precedents to interpret RLA Section 2, Fourth). "While
of  course NLRA precedents may not be casually transferred to  the RLA
context" given the severe impact of Atlas Air's  actions on its newly
unionized employees we see "no reason  why the latter requires us to
cast a more jaundiced eye on  efforts to exert economic pressure than
the former." East- ern, 863 F.2d at 909.


Atlas Air adopted a facially discriminatory policy that  penalized
employees by terminating their participation in  profit sharing for no
other reason than their decision to  unionize. Prior to the election
of ALPA as the crewmembers'  bargaining representative, Atlas
repeatedly threatened its  employees with a substantial decrease in
compensation that  would have a real and material impact on the
conditions of  employment. In case there was any confusion about the 
magnitude of the loss that would result upon certification of a 
union, Atlas distributed documents detailing the amount of  income at
stake. Then, upon learning of ALPA's election,  Atlas immediately
fulfilled its threat and terminated the  profit-sharing plan before
the results had even been certified.  It is difficult to view these
actions as anything other than the  sort of "interference, influence,
or coercion" explicitly barred  by the RLA.


In reaching this conclusion we need not decide whether  there is a
broad class of inherently destructive acts that are  per se illegal
under the RLA. That is, even without import- ing NLRA precedent with
full force into the RLA context, we  find instructive the concept that
the very nature of actions  against unionized labor by an employer can
in and of itself  provide evidence of the animus generating those
acts. While  we continue to recognize that the employer may alter
status  quo working conditions, so long as no collective bargaining 
agreement exists between the parties, where the challenged 
modification to the status quo is far from merely formal, and  is in
fact the equivalent of a substantial decrease in compen- sation having
a real and material impact on the conditions of  employment, and is
justified on no other grounds than union  certification, we may
presume that the carrier's actions were  motivated by anti-union
animus and are in violation of RLA  Section 2, Third and Fourth. To
hold otherwise would allow  a carrier, without legal consequence, to
slash to subsistence  levels the wages of those employees who elect to
unionize.  Were we to allow such a result, the RLA provisions "prohib-
it[ing] employers from interfering with, coercing or influenc- ing the
representational choices of workers and from interfer- ing with the
right of employees to organize in labor unions" 


would no longer be effective. Eastern, 863 F.2d at 893.  While carriers
retain the right to make unilateral changes in  status quo working
conditions, so long as there is no collective  bargaining agreement,
they may not make such changes  which selectively penalize unionized
employees so as to inter- fere with, coerce, or influence their
decision to exercise their  rights under the RLA.


3. Statute of Limitations


Atlas posits that ALPA's claim under the RLA is time- barred and that
this provides an alternative ground upon  which to uphold the district
court's grant of summary judg- ment. The statute of limitations for
the RLA, borrowed from  section 10(b) of the National Labor Relations
Act, 29 U.S.C.  s 160(b), is six months. See West v. Conrail, 481 U.S.
35  (1987). According to Atlas, ALPA's claim accrued either  upon the
initial imposition of the profit-sharing plan, or no  later than
January 1998 when ALPA lost its initial represen- tative election. In
either case, ALPA's claim would be time- barred.


"A claim normally accrues when the factual and legal  prerequisites for
filing a suit are in place." 3M Co. v.  Browner, 17 F.3d 1453, 1460
(D.C. Cir. 1994). Were ALPA's  claim solely based upon the actions
taken by Atlas prior to  the 1999 certification election, it would be
time-barred. How- ever, under the NLRA, from which the RLA borrows its
 statute of limitations, the maintenance of exclusionary claus- es in
employee benefit plans has been held to constitute a  violation. See,
e.g., Kroger Co., 164 N.L.R.B. 362, 363, 376  (1967), enforced in
relevant part, 401 F.2d 682 (6th Cir. 1968);  Melville Confections,
Inc., 142 N.L.R.B. 1334, 1339 (1963),  enforced, 327 F.2d 689, 690
(7th Cir. 1964) ("The Board found  that the company violated Section
8(a)(1) of the Act by  maintaining and continuing to maintain a
profit-sharing  plan ... which required as a condition precedent to
partic- ipation ... that the employee not be represented by a labor 
organization for the purposes of collective bargaining." (em- phasis
added and footnote omitted)); id. at 692 ("Nor does  the fact that the
company's violation antedated the Section 


10(b) period applicable to the instant charge preclude a  finding of a
violation which occurred through a continuation of  the proscribed
conduct during and within the six-month peri- od prior to the filing
of the charge."). Thus, Atlas Air's  continued reliance upon its
exclusionary eligibility policy, and  repeated threats to enforce this
policy should the crewmem- bers exercise their right to unionize,
constitutes a continuing  violation under the applicable case law.


Therefore, ALPA's claims are still clearly alive. As the  Supreme Court
noted interpreting section 10(b) of the  NLRA:


[W]here occurrences within the six-month limitations pe- riod in and of
themselves may constitute, as a substantive  matter, unfair labor
practices.... earlier events may be  utilized to shed light on the
true character of matters  occurring within the limitations


Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 416 (1960); see  also id.
at 416-17 (distinguishing the above from cases in  which "conduct
occurring within the limitations period can be  charged to be an
unfair labor practice only through reliance  on an earlier unfair
labor practice"); International Union,  United Auto., Aerospace and
Agric. Implement Workers of  Am. v. NLRB, 363 F.2d 702, 706-07 (D.C.
Cir. 1966) (claim  not time-barred where unfair labor practice
"started more  than six months prior to the charge" was "carried
forward by  more recent actions"). In the case at bar, Atlas committed
 violations within the limitations period by, among other  things,
repeatedly threatening to terminate profit sharing for  employees that
elect to unionize and its immediate severance  of represented unit
members from the profit-sharing plan  upon learning that ALPA won the
election. Under Local  Lodge No. 1424, this is sufficient to prevent
ALPA's claims  from being time-barred.


B. Atlas Air's Cross-Appeal


Atlas cross-appeals the district court's dismissal of its  additional
claim for a declaratory judgment that it retained  the right to make
additional unilateral changes to salary and 


working conditions prior to the ratification of a collective 
bargaining agreement. There is no subject matter jurisdic- tion for
this claim.


Under the Declaratory Judgment Act, a dispute "must not  be nebulous or
contingent but must have taken on fixed and  final shape." Danville
Tobacco Ass'n v. Freeman, 351 F.2d  832, 833-34 (D.C. Cir. 1965)
(quoting Public Service Comm'n  v. Wycoff Co., 344 U.S. 237, 244
(1952)); see also Federal  Express Corp. v. ALPA, 67 F.3d 961 (D.C.
Cir. 1995) (finding  no concrete legal dispute in airline's suit for
declaratory  judgment that unopposed changes in status quo working 
conditions were protected under the RLA). That a union  may posture in
labor negotiations or otherwise threaten to  respond to future changes
is insufficient to create the reason- able apprehension of litigation
necessary for the claim to be  justiciable. See id. at 964-65. Thus
the district court cor- rectly dismissed Atlas's additional claims for
lack of subject  matter jurisdiction on the grounds that it "must not
speculate  as to future unilateral changes Atlas may wish to make and 
whether those changes would be lawful under the RLA."  Atlas, 69 F.
Supp. 2d at 164.


III. Conclusion


Atlas Air violated the RLA by dramatically cutting the  take-home pay
of its cockpit crewmembers for the sole reason  that they exercised
their statutory right to unionize. Such an  action is not protected by
the status quo provisions of the  RLA. Consequently, the district
court's grant of summary  judgment for Atlas Air is reversed and this
case is remanded  for further proceedings consistent with this


It is so ordered.