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Committee of Concerned v. International Brotherhood of Teamsters Airline Division and Teamsters Local 135

November 30, 2011


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 10-C-379--Rudolph T. Randa, Judge.

The opinion of the court was delivered by: Easterbrook, Chief Judge.


Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

The McCaskill-Bond Amend- ment to the Federal Aviation Act, 49 U.S.C. §42112 note, provides that a transaction "for the combination of multiple air carriers into a single air carrier" requires the combined business to merge the seniority lists of the two carriers' employees. Republic Airways Holding acquired Midwest Airlines in July 2009 by purchasing its parent, Midwest Air Group. The seniority lists for mechanics, baggage handlers, and administrative per- sonnel have been integrated under the Amendment. But Republic furloughed the flight attendants, requiring them to apply for "new" jobs; if they are rehired, the Teamsters Union, which represents the flight atten- dants at Republic's older carriers (Republic Airlines, Chautauqua Airlines, and Shuttle America), places them at the bottom of its seniority roster. (Pilots, too, were furloughed, but their status is not at issue here.) The Teamsters Union has refused to budge from this posi- tion, which it has maintained even after the National Mediation Board concluded that the flight attendants who worked for Midwest became part of a single bar- gaining unit at an integrated air transportation business that comprised Republic, Chautauqua, Shuttle America, and Midwest. In re Chautauqua Airlines / Shuttle America / Republic Airlines / Midwest Airlines / Frontier Airlines / Lynx Aviation, 37 N.M.B. 148 (2010). Three of Midwest's flight attendants, and a committee purporting to speak for all of them, filed this suit.

When Republic Airways Holding acquired it, Midwest was losing money and needed to surrender most of its planes, which had been leased. Midwest had only nine planes on the date of the merger. Within a few months, Republic returned them to Boeing and abandoned the certificate from federal regulators that entitled Midwest to engage in the air transportation business. Republic retained and used Midwest's gates, takeoff and landing slots, trademarks, code (YX), and other assets. Republic (operating with Midwest's name and marks) provided service to most of the city pairs that Midwest had flown; only the type of aircraft changed. (Midwest used Boeing 717 planes; Republic uses Embraer 190s.) Frontier Airlines, another subsidiary of Republic Airways Holding, has taken over the routes that Republic Airlines operated in Midwest's name from mid- 2009 through mid-2011, and Midwest's trademarks have been retired; no one contends that these developments affect how seniority issues should have been handled earlier. (Eventually we may need to consider questions about what rights Midwest's former employees have in Frontier's seniority system, which is separate from Republic's. See Teamsters Union, Airline Division v. Frontier Airlines, Inc., 708 F. Supp. 2d 750 (E.D. Wis. 2010); In re Chautauqua Airlines, 37 N.M.B. at 167.)

The district court held that Republic's abandonment of Midwest's certificate, and the return of its planes, meant that Republic had acquired some assets related to air transportation but not an "air carrier" for the purpose of the McCaskill-Bond Amendment. Although the court initially denied the Teamsters' motion for summary judgment, 742 F. Supp. 2d 1035 (E.D. Wis. 2010), it granted a motion for reconsideration and ruled in the Union's favor. 2011 U.S. Dist. LEXIS 2718 (E.D. Wis. Jan. 10, 2011). The court stated that "McCaskill-Bond was never meant to protect the employees of an air carrier that simply goes out of business." Id. at *9.

Legislatures do not mean things in the abstract; as Justice Holmes once put it, the right question is what they meant by what they said. "[A statute] does not disclose one meaning conclusively according to the laws of language. Thereupon we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circum- stances in which they were used . . . . But the normal speaker of English is merely a special variety, a literary form, so to speak, of our old friend the prudent man. He is external to the particular writer, and a reference to him as a criterion is simply another instance of the externality of the law. . . . We do not inquire what the legislature meant; we ask only what the statute means." Oliver Wendell Holmes, Jr., The Theory of Legal Interpreta- tion, 12 Harv. L. Rev. 417, 417-19 (1899), reprinted in his Collected Legal Papers 204, 207 (1920). What the McCaskill-Bond Amendment means is not hard to discern.

Here is all of the statutory text that matters:

(a) With respect to any covered transaction in- volving two or more covered air carriers that results in the combination of crafts or classes that are subject to the Railway Labor Act (45 U.S.C. 151 et seq.), sections 3 and 13 of the labor protec-

tive provisions imposed by the Civil Aeronautics Board in the Allegheny-Mohawk merger (as pub- lished at 59 C.A.B. 45) shall apply to the integra- tion of covered employees of the covered air carriers; [two exceptions are omitted as irrelevant]

(b) In this section, the following definitions apply:

(1) The term "air carrier" means an air carrier that holds a certificate issued under chapter 411 of title 49, United States Code.

(2) The term "covered air carrier" means an air carrier that is involved in a ...

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