Air Line Pilots Assn.

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 820 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 51
820
Air Line Pilots Association and ABX Air, Inc. Case
9–CC–1660
August 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On July 2, 2004, Administrative Law Judge Joseph
Gontram issued the attached decision. The Respondent
filed exceptions and a supporting brief. The Charging
Party filed an answering brief.1 The Respondent filed a
reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order.
As discussed in greater detail in the judge’s decision,
this case involves three parties: the Respondent—Air
Line Pilots Association, the Charging Party—ABX Air,
Inc., and DHL.2 The parties’ dispute centers on whose
pilots should fly the cargo handled by Airborne, Inc. af-
ter its merger with DHL. Prior to the merger, ASTAR
(formerly DHL Airways) pilots flew DHL cargo and
ABX (formerly Airborne) pilots flew Airborne cargo.
After the merger, the Respondent sought to extend its
contractual status as the exclusive source of pilots for
DHL to cover both DHL and Airborne.
This dispute requires us to determine whether Respon-
dent’s attempted extension runs afoul of the Act’s prohi-
bition on secondary activity. The Respondent claims that
it was simply attempting to obtain the benefit of its bar-
gain with DHL that it would be the corporation’s exclu-
sive source of pilots. According to the Respondent, once
Airborne became a part of DHL’s corporate structure,
DHL’s contractual obligation to use the Respondent’s
pilots extended to Airborne. The judge disagreed and
found that the Respondent’s objective to force DHL to
use the Respondent’s pilots for flying both DHL and
Airborne freight necessarily required DHL to cease doing
business with ABX. The judge concluded that this cessa-
tion of business had no work preservation objective, and
therefore Respondent’s conduct violated the Act. For the
reasons expressed below, we agree with the judge.

1 The General Counsel’s answering brief was not accepted by the
Board because it was not timely filed.
2 DHL’s corporate structure underwent a number of changes during
the relevant time period, with accompanying name changes. Those
changes are addressed herein as necessary. The judge describes the
evolution of the Company in greater detail in his decision. We refer to
it herein simply as DHL.
Facts
DHL provides overnight package delivery services to
its customers. DHL Airways, a wholly-owned subsidiary
of DHL, provided both ground and air operations for
DHL. The ground operations included the pickup, sort-
ing, loading, and delivery of freight. The air operations
included flying freight between the 33 cities serviced by
DHL, which freight was then delivered to customers by
the ground operation. DHL Airways’ base of operations
was the Cincinnati/Northern Kentucky International Air-
port.
The Respondent primarily represents airline pilots in
collective-bargaining relationships with airlines. In
1990, the National Mediation Board certified the Re-
spondent to represent pilots employed by DHL Airways.
In 1998, the Respondent entered into a collective-
bargaining agreement with DHL Airways. The agree-
ment, and other implementing agreements, provided that
all flying performed on behalf of DHL Airways, DHL, or
their successors would be performed by pilots whose
names appeared on DHL Airways’ pilot seniority list.
Respondent represented those pilots.
In 2001, DHL was acquired by a foreign entity. Be-
cause of prohibitions on foreign ownership of U.S. air-
lines, DHL spun off the air operations of DHL Airways
as a separate, U.S.-owned entity. DHL Airways’ ground
operations remained a wholly-owned subsidiary of DHL.
Thus, the employees who provided the pickup, sorting,
loading, and delivery services remained employees of
DHL. The employees involved in the air operations,
including the pilots, however, became employees of a
separate company, DHL Airways. DHL Airways, which
later changed its name to ASTAR, entered into a contrac-
tual relationship with DHL to provide the same air opera-
tions that it had provided when it was a subsidiary of
DHL.
In 2003, DHL entered into a merger agreement with its
competitor Airborne, Inc. Airborne’s operations in-
cluded both ground and air services. Airborne utilized a
hub system for moving freight around the country, main-
taining a principal hub in Wilmington, Ohio, and 11 re-
gional hubs. Airborne flew planes in and out of ap-
proximately 105 cities, through the hub airports. Air-
borne’s pilots were represented by the International
Brotherhood of Teamsters, Local 1224.
Because of DHL’s foreign ownership, DHL’s acquisi-
tion of Airborne required that Airborne spin off its air
operations. The air operations became a separate entity,
ABX Air, Inc.—the Charging Party. Airborne’s ground
operations became a subsidiary of DHL, called Airborne.
Thus, after the merger, the pilots who had previously
worked for Airborne became ABX employees and Air-
AIR LINE PILOTS ASSN. 821
borne’s ground operations employees became employees
of the DHL subsidiary, Airborne. ABX entered into a
contractual relationship with Airborne to provide the
same air operations that it had provided prior to the
merger.
Although the merger altered their corporate structures,
DHL and Airborne continued to operate their businesses
in the same fashion as before the merger. The ASTAR
pilots represented by Respondent continued to fly to the
same airports, using the same airplanes, and carrying the
same DHL-handled freight as before the merger. Like-
wise, ABX pilots continued to be represented by the
Teamsters, and continued to fly freight handled by the
same Airborne employees, in and out of the same air-
ports, using the same airplanes as before the merger.
On August 7, 2003, the Respondent filed a grievance
against DHL, alleging that the implementation of the
ABX-Airborne contract for air operations violated its
collective-bargaining agreement with ASTAR, to which
DHL was bound. On August 11, DHL filed a declaratory
judgment action in Federal district court, seeking a judg-
ment that the ABX-Airborne contract did not violate any
of the parties’ agreements. The Respondent filed a coun-
terclaim seeking expedited arbitration of its grievance
and an injunction restraining DHL and its subsidiaries,
including Airborne, from contracting with ABX for air
operations services.3
Analysis
1. The threshold issue before us is whether the judge
properly found that the Board has jurisdiction over this
dispute. The Respondent and our dissenting colleague
concede that the Respondent meets the definition of a
labor organization.4 Because Section 8(b)’s prohibition

3 In deference to the Board’s proceedings, the district court has
stayed further proceedings until the issuance of this decision.
4 Although the overwhelming majority of the Respondent’s members
are not employees under the Act because they are employed by air
carriers covered by the Railway Labor Act, the Respondent acknowl-
edges that it represents a unit of pilots who are employees under the
Act because they are employed by Ross Aviation, an employer under
the Act. Therefore, the Respondent meets the Act’s definition of a
labor organization. See Master, Mates & Pilots Local 47 (Chicago
Calumet Stevedoring Co.), 125 NLRB 113, 132 (1959) (workers in-
volved in dispute need not be employees under the Act, as long as
putative labor organization represents some employees under the Act);
see also Douglas Aircraft Co., 221 NLRB 1180 (1975), remanded on
other grounds sub nom. Mourning v. NLRB, 559 F.2d 768 (D.C. Cir.
1977) (ALPA is a labor organization).
At one point, our colleague “assumes” that ALPA is a labor organi-
zation under Sec. 2(5) of the Act. At another point, our colleague says
that ALPA itself concedes that it is a labor organization “for some
purposes.” We are not aware of any case which holds that an entity can
be a labor organization for some purposes under the Act and not for
other purposes under that same Act. The language of the Act is plain.
on secondary activity expressly extends to Section 2(5)
labor organizations, it follows that the Respondent is
covered by Section 8(b)’s dictates. The Respondent and
our dissenting colleague contend, nevertheless, that the
Board does not have jurisdiction because this dispute is
in essence a Railway Labor Act dispute. We agree with
the judge, to the contrary, that the Board has jurisdiction.
The status of the relevant parties is uncontested. The
Respondent concedes that it meets the Act’s definition of
a labor organization and does not dispute that DHL and
Airborne are employers subject to the Act’s jurisdiction.
Similarly, the General Counsel does not dispute that
ASTAR and ABX are not employers under the Act and
that their pilots are not statutory employees under the
Act. Rather, they are subject to the Railway Labor Act
(RLA), which covers air carriers and their employees. 45
U.S.C. § 181. At issue, therefore, is whether the Board
has jurisdiction where the dispute involves some parties
who are subject to the Act’s jurisdiction and some who
are not.
The Respondent and our dissenting colleague argue
that because this dispute centers on the question of which
of two groups of RLA-covered employees is entitled to
provide air operation services to DHL, the Board does
not have jurisdiction.5 In support of their contention that
the Board lacks jurisdiction, they rely primarily on the
Supreme Court’s decision in Railroad Trainmen v. Jack-
sonville Terminal Co., 394 U.S. 369 (1969). We agree
with the judge that Jacksonville Terminal is inapposite.
In Jacksonville Terminal, as in this case, the union rep-
resented employees covered by both the RLA and the
NLRA. The employees at issue were, like the employees
here, the union’s RLA-covered members. The two em-
ployers involved in Jacksonville Terminal also were
RLA-covered entities. Thus, the dispute’s nexus with the
NLRA was limited to the union’s representation of em-
ployees not implicated in the dispute in question. In
those circumstances, the Supreme Court held that even
though the union met the NLRA’s definition of a labor
organization, the Board lacked jurisdiction because the
dispute at issue was “a railway labor dispute, pure and
simple.”
In contrast to the dissent, we do not read Jacksonville
Terminal as counseling against an assertion of jurisdic-
tion because the dispute here is not a “pure” RLA dis-
pute. Although both sets of employees involved—the
ASTAR and ABX pilots—are covered by the RLA, only

Once an entity is found to be a labor organization, it is subject to all of
the prohibitions of Sec. 8(b) of the Act.
5 There is no dispute that the Respondent’s members who are cov-
ered by the Act—the Ross Aviation pilots—have no connection to this
dispute.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD822
one of the two employers—ABX—is. Whereas in Jack-
sonville Terminal, all the participants in the dispute were
covered by the RLA, including both employers, here one
of the employers—DHL—is covered by the NLRA and
DHL is the object of the Respondent’s allegedly unlaw-
ful coercion. The judge, therefore, correctly concluded
that Jacksonville Terminal does not compel a finding that
the Board lacks jurisdiction. See also Electrical Workers
(B. B. McCormick & Sons), 150 NLRB 363 (1964), enfd.
350 F.2d 791 (D.C. Cir. 1965), cert. denied 383 U.S. 943
(1966) (Board has jurisdiction where the primary em-
ployer was covered by the RLA, the neutral employer
was covered by the NLRA, and the employees at issue
were covered by the RLA and represented by a union
that represented both RLA and NLRA employees).
In order to fit this case into the Jacksonville Terminal
holding and her characterization of the case as essentially
alien to the Act, our dissenting colleague restricts her
view to the primary dispute between the Respondent and
ABX. If, in fact, the dispute was so limited, her charac-
terization would have much greater credibility. The Re-
spondent, however, chose to enmesh DHL, an NLRA-
covered employer, in its dispute. The essence of the dis-
pute, which we have been asked to resolve, therefore, is
not between only RLA-covered entities. Rather, ALPA
(an NLRA-covered labor organization) chose to enmesh
DHL (an NLRA-covered employer) in its dispute with
ABX (an RLA employer).6 The Respondent’s extension
of the dispute to an NLRA-covered employer distin-
guishes this case from Jacksonville Terminal and under-
mines the dissent’s unduly narrow characterization of the
dispute.
Our dissenting colleague characterizes the issue here
as a conflict between two statutory regimes. The dissent
fails to explain, however, why the Board should decline
its role in enforcing the Act and defer to the RLA. The
fact remains that the Respondent brought itself within the
Board’s jurisdiction by choosing to represent employees
covered by the Act. Moreover, we do not see how en-
forcing the Act’s secondary boycott prohibition subverts
the RLA. Although the RLA does not proscribe secon-
dary activity, neither was it enacted to promote it.7 Ac-
cordingly, the plain meaning of the NLRA is our best
guide in determining whether or not to assert jurisdiction.

6 Under the language of the 1959 amendment, Sec. 8(b)(4)(B) is vio-
lated even if the primary employer and the neutral employer are non-
NLRA employers.
7 The Supreme Court has admonished the Board for failing to defer
to other statutory schemes where enforcement of the Act “trenches
upon” the critical aspects of the conflicting statutory purpose. See
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 151
(2002). Assertion of jurisdiction here does not trench upon the critical
purpose of the RLA.
Because the plain meaning of the applicable statutory
provisions undisputedly pertain to the Respondent and
because the Respondent and our dissenting colleague
have failed to provide any persuasive authority other-
wise, we assert the Board’s jurisdiction to adjudicate the
question of whether the Respondent engaged in unlawful
secondary activity by pursuing its grievance and counter-
claim against DHL in order to block Airborne’s contract
with ABX.
2. We also adopt the judge’s finding that the Respon-
dent’s pursuit of its grievance and counterclaim consti-
tuted unlawful secondary conduct. We find that the ob-
ject of the Respondent’s conduct was to require DHL and
its subsidiary Airborne to cease doing business with
ABX, in violation of Section 8(b)(4)(ii)(A) and (B) and
8(e).
Section 8(b)(4)(ii)(A) and (B) makes it unlawful for a
union to “threaten, coerce, or restrain any person en-
gaged in commerce or in an industry affecting com-
merce” in furtherance of certain unlawful objects,
which include “(A) forcing or requiring any employer
. . . to enter into any agreement which is prohibited by
Section 8(e) [and] (B) forcing or requiring any person
to cease using, selling, handling, transporting, or oth-
erwise dealing in the products of any other producer,
processor, or manufacturer, or to cease doing business
with any other person. . . .”
Section 8(e) makes it unlawful for an employer and a union
to “enter into” an agreement expressly or implicitly requir-
ing the employer “to cease or refrain from handling, using,
selling, transporting or otherwise dealing in any of the prod-
ucts of any other employer, or cease doing business with
any other person.”
The Respondent’s grievance and counterclaim have
the clear object of forcing DHL/Airborne to cease doing
business with ABX. On its face, therefore, the Respon-
dent’s conduct is unlawful.
Our analysis, however, must go deeper. As the Su-
preme Court has held, even if a contractual provision has
a cease-doing-business object, it is lawful if it or its en-
forcement “is addressed to the labor relations of the con-
tracting employer vis-à-vis his own employees.” Na-
tional Woodwork Manufacturers Assn. v. NLRB, 386
U.S. 612, 645 (1967). Thus, where a union’s conduct
has a work preservation object, it is primary, lawful ac-
tivity. For example, in National Woodwork Manufactur-
ers, the literal object of the union’s agreement with the
employer, which prohibited the use of premachined
doors at the worksite, was to force the employer to cease
doing business with the manufacturers of premachined
doors. Nevertheless, the Supreme Court found that the
AIR LINE PILOTS ASSN. 823
agreement did not violate the Act because the object of
the agreement was to preserve manual door-hanging car-
pentry work for the union’s members.
In assessing whether conduct has a work preservation
object, the Board looks to whether the work at issue is
“fairly claimable” by the union. See, e.g., Sheet Metal
Workers Local 26 (Reno Employers Council), 168 NLRB
893, 897 (1967); Retail Clerks Local 1288 (Nickel’s Pay-
Less), 163 NLRB 817, 818–819 (1967), enfd. 390 F.2d
858 (D.C. Cir. 1968). As the Board has found, work is
“fairly claimable” where it is “identical to or very similar
to that already performed by the bargaining unit and that
bargaining unit members have the necessary skill and are
otherwise able to perform.” Newspaper & Mail Deliver-
ers (Hudson News), 298 NLRB 564, 566 (1990).
Where the union’s object is work acquisition, rather
than work preservation, an unlawful secondary object
will be found. See, for example, Service Employees Lo-
cal 32B-32J (Nevins Realty), 313 NLRB 392, 399–400
(1993), enfd. in relevant part 68 F.3d 490 (D.C. Cir.
1995). As the Board has repeatedly held, contract
clauses which have a purpose “to acquire for bargaining
unit employees work which has traditionally been per-
formed by employees of other employers” are not “de-
signed to protect the wages and job opportunities of unit
employees” and, as such, “are considered as having an
unlawful secondary effect.” Teamsters (California
Dump Truck Owners), 227 NLRB 269 (1976). The Su-
preme Court in National Woodwork specifically distin-
guished the circumstances there from cases where the
union’s object is “to reach out to monopolize jobs or ac-
quire new job tasks when their own jobs are not threat-
ened.” 386 U.S. at 630–631.
Here, we find that the Respondent’s grievance and
counterclaim are unlawful because they have a work-
acquisition, as opposed to a work-preservation, object.
Respondent, through its grievance and court counter-
claim, is seeking work for its members that is different
from the work that they have historically performed. For
example, the ASTAR pilots service airports in approxi-
mately 33 cities, whereas the ABX pilots service more
than 100 cities. In addition, the ABX pilots use a hub
system, with Wilmington, Ohio as its central hub. The
ASTAR pilots never fly to Wilmington. The ASTAR
and ABX pilots fly different models of aircraft. The
ASTAR pilots fly in 3-person crews, as required by the
aircraft they use, whereas the ABX pilots primarily use
2-person crews. Finally, the volume of freight handled
by the two sets of pilots is very different. ASTAR pilots
transport approximately 900,000 pounds of freight per
day. ABX pilots transport 8.5 million pounds per day.
Moreover, the Respondent’s ASTAR members have
never performed air operations for Airborne. If the
Board permitted the Respondent’s grievance and coun-
terclaim to proceed and they were successful, the Re-
spondent’s members would perform this work for the
first time. Accordingly, the Respondent’s conduct can-
not be understood to be preserving the Respondent’s
members’ work and is not fairly claimable.
A comparison of this case with the hallmark cases in
this area makes clear the difference between the Respon-
dent’s object and true work preservation provisions. As
discussed above, in National Woodworkers Assn., the
Supreme Court found lawful a contract provision prohib-
iting the employer from contracting with premachined
door manufacturers. There, the employees historically
had hand-hung new doors. The purpose of the contract
provision at issue was to prohibit the employer from tak-
ing advantage of new technology that enabled manufac-
turers to offer prehung doors that obviated the need for
carpenters at the site to install doors by hand.
Similarly, the impact on the bargaining unit of a tech-
nological innovation was at issue in the Supreme Court’s
Longshoremen cases. See NLRB v. Longshoremens ILA,
473 U.S. 61 (1985); NLRB v. Longshoremens ILA, 447
U.S. 490 (1980). There, the union contracted with the
employers to preclude employers from fully utilizing a
new container freight system. The containerization of
freight threatened to directly replace the union’s mem-
bers’ services. The Supreme Court held that, despite the
obvious cease-doing-business object of the contract pro-
visions, the union was entitled to preserve its members’
historical purview.
The Respondent has no such historical claim to per-
forming Airborne’s air services. As discussed above, the
Respondent’s members have historically provided air
services to DHL, not Airborne. Moreover, the ASTAR
pilots do not risk losing their jobs, as the employees at
issue in National Woodwork and the Longshoremen
cases did, if the Respondent is not permitted to enforce
the disputed contract provision. Indeed, the result of the
Respondent’s success would be to create a large number
of new jobs for ASTAR. The record demonstrates that
the ASTAR pilots would have difficulty fulfilling Air-
borne’s needs because acquisition of the Airborne con-
tract would represent an overwhelming influx of work.
The Respondent’s attempt to obscure the fact that the
outcome of the Respondent’s grievance and counterclaim
would be an expansion of work for the Respondent’s
members is unavailing. By expansively defining the
historical scope of its members’ work, the Respondent
argues that its actions do not effectuate a change in that
scope. Thus, the Respondent defines the scope of its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD824
historical claim to work as air services for all of DHL.
Because Airborne is now part of DHL, the Respondent
argues that its air services are a part of the Respondent’s
historical scope of work. The Respondent ignores, how-
ever, that at the time it filed its grievance and counter-
claim, Airborne, although a wholly-owned subsidiary,
was a separate employer for whom the Respondent’s
members had never performed work. Indeed, the Re-
spondent never has alleged that Airborne and DHL were
a single employer or alter egos. See Masland Industries,
311 NLRB 184, 186 (1993) (noting that single employer
finding does not necessarily follow from parent/wholly-
owned subsidiary relationship).
Concededly, where a union represents employees who
perform work for an employer, it can lawfully claim the
same kind of work when it is performed by additional
employees of the same employer. By contrast, in the
instant case, the Respondent represents employees who
perform work for ASTAR and it is claiming different
work historically and currently performed by a different
employer (ABX). Accordingly, the consequence of the
Respondent’s grievance and counterclaim, if successful,
would be the acquisition of work, not preservation. See
Teamsters Local 282 (D. Fortunato, Inc.), 197 NLRB
673, 678 (1972) (work historically performed by em-
ployees in other work units is not fairly claimable).
3. Finally, we find, contrary to the Respondent’s ex-
ception, that the judge’s recommended remedy is within
the Board’s discretion. The judge recommended that the
Board order the Respondent to reimburse DHL for “all
reasonable expenses and legal fees, with interest, in-
curred in defending against the grievance and counter-
claim.” Reimbursement is the appropriate remedy where
the Respondent has engaged in actual coercion. See
Food & Commercial Workers Local 367 (Quality
Foods), 333 NLRB 771 (2001); Service Employees Local
32B-32J (Nevins Realty), supra, 313 NLRB at 403. We
clarify, however, that the Respondent is not liable for
legal expenses related to DHL’s initiation of the district
court litigation. The Respondent is liable only for ex-
penses related to defending against its grievance and
counterclaim.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Air Line Pilots Association,
Washington, D.C., its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
MEMBER LIEBMAN, dissenting in part.
This case involves a dispute between ABX, an air car-
rier, and ALPA, a pilots’ union, concerning the rights of
ALPA-represented pilots. Nevertheless, because 17 of
the more than 62,000 pilots that ALPA represents are
employed by an employer covered by the National Labor
Relations Act—an employer in no way involved in this
dispute—the majority claims that the dispute is properly
adjudicated under the NLRA, and not the Railway Labor
Act. I dissent.
In Railroad Trainmen v. Jacksonville Terminal Co.,
394 U.S. 369 (1969), a group of railroad unions picketed
a railroad terminal in support of a labor dispute between
the unions and one of the railroads using the terminal.
There was no dispute that the railroad, the terminal, and
the affected employees were all covered by the RLA.
However, a “small percentage” (id. at 375) of the railroad
unions’ membership consisted of employees covered by
the NLRA, not the RLA, and, on that basis, the terminal
asserted that the dispute should be adjudicated under the
NLRA. The Supreme Court rejected that argument:
The NLRA came into being against the background of
pre-existing comprehensive [F]ederal legislation regu-
lating railway labor disputes. Section 2(2) and (3) of
the NLRA, 29 U.S.C. § 152(2), (3), expressly exempt
from the Act’s coverage employees and employers sub-
ject to the Railway Labor Act. And when the tradi-
tional railway labor organizations act on behalf of em-
ployees subject to the Railway Labor Act in a dispute
with carriers subject to the Railway Labor Act, the or-
ganizations must be deemed, pro tanto, exempt from
the National Labor Relations Act.
Id. at 376–377 (footnote omitted).1
The same principle applies here. I am willing to as-
sume, for purposes of discussion, that ALPA is a “labor
organization” within the meaning of the NLRA. After
all, .027 percent of the pilots it represents are Section

1 The Court was unmoved by the fact that the unions were engaged
in what, if the case were adjudicated under the NLRA, would arguably
have been a secondary boycott. Id. at 377 fn. 10, 386–393. The Court
observed:
No cosmic principles announce the existence of secondary conduct,
condemn it as an evil, or delimit its boundaries. These tasks were first
undertaken by judges, intermixing metaphysics with their notions of
social and economic policy. And the common law of labor relations
has . . . drawn no lines more arbitrary, tenuous, and shifting than those
separating “primary” from “secondary” activities.
Id. at 387–388. Quoting that language approvingly in Burlington
Northern Railroad v. Bhd. of Maintenance of Way Employees, 481 U.S.
429 (1987), the Court squarely held that the RLA does not outlaw sec-
ondary activity.
AIR LINE PILOTS ASSN. 825
2(3) “employees.”2 And there is no disputing that DHL,
the alleged secondary in this case, is a Section 2(2) “em-
ployer.” But the primary controversy here is between
ALPA and ABX, which is not an NLRA employer, and it
concerns the rights of pilots who are not NLRA employ-
ees. That controversy quintessentially arises under the
RLA, which does not forbid secondary activity in fur-
therance of a labor dispute. The controversy is not one
that the Board should decide.
According to the majority, this case is distinguishable
from Jacksonville Terminal, because that was a “railway
labor dispute, pure and simple.” Jacksonville Terminal,
supra at 377. But that language, used by the Court in its
summation of the discussion, does not represent the hold-
ing of the Court. The Court was dealing with a contro-
versy that did not fall neatly within the jurisdiction of the
NLRA or the RLA. What the Court held was that a dis-
pute between an RLA carrier and RLA union over the
rights of RLA employees was “pro tanto,” i.e., “to that
extent,” an RLA dispute. At a minimum, that holding
strongly counsels that the Board refrain from asserting
jurisdiction over this case.3
The majority nevertheless asserts that the NLRA, by
its “plain meaning,” governs this case because we alleg-
edly have present a labor organization, a secondary em-
ployer, and a primary “person” (ABX), who need not be
a statutory employer. But one could equally well say
that the dispute arises under the RLA, by its plain mean-

2 ALPA takes the position that it is not, for purposes of this proceed-
ing, a statutory labor organization. Although the majority asserts that
“it is not aware of any case” standing for the proposition that an entity
can be a labor organization for some purposes under the NLRA but not
others, that appears to be the majority’s way of saying that the Board
has never ruled one way or the other on the issue.
In any event, the majority’s argument that ALPA should be deemed
a labor organization here is only tenuously supported by the cases it
cites. Prior to the decision in Masters, Mates & Pilots Local 47 (Chi-
cago Calumet Stevedoring Co.), 125 NLRB 113 (1959), the union
involved in that case had, unlike ALPA, often sought bargaining rights
under the auspices of the NLRB. Id. at 132. In addition, unlike
ALPA’s claim here, the union’s claim in that case was not that the
controversy was subject to the exclusive jurisdiction of another statu-
tory regime, but the qualitatively different claim that the employees
involved in the labor action were supervisors, not 2(3) employees. Ibid.
The majority cites Douglas Aircraft Co., 221 NLRB 1180 (1992), enfd.
35 F.3d 1148 (7th Cir. 1994), for the proposition that the Board has
previously found ALPA to be a labor organization. ALPA was not a
party in that case, however, and there is no indication in the decision
that the question was litigated.
3 In reciting the facts, the majority states that DHL responded to
ALPA’s grievance against it by “fil[ing] a declaratory judgment action
in Federal district court.” The majority fails to state that DHL pro-
ceeded under the authority of the RLA: DHL asserted that the dispute
between the parties was a representation dispute within the jurisdiction
of the National Mediation Board. Although not determinative, DHL’s
decision to proceed under the RLA instead of the NLRA is certainly
noteworthy.
ing, because we have present an RLA “carrier” and “rep-
resentative.”4 The real question here is one of accom-
modating two statutory regimes, the NLRA and the RLA,
both of which at least arguably govern the dispute. That
question cannot be decided solely by reference to the
statutory terms.5
Ultimately, the sole authority the majority cites in sup-
port of their determination to assert jurisdiction is Elec-
trical Workers (B. B. McCormick & Sons), 150 NLRB
363 (1964), enfd 350 F.2d 791 (D.C. Cir. 1965). That
case bears no relation to the present dispute. Electrical
Workers concerned a labor action undertaken jointly by
the Machinists, the IBEW, the Boilermakers, the Sheet
Metal Workers, the Railroad Telegraphers, and the
Brotherhood of Maintenance of Way. Id. at 372. The
Board observed that the membership of the first four of
those unions “is comprised overwhelmingly of nonrail-
road employees.” Id. at 371. The Board asserted juris-
diction over the two railway unions, which it found were
not statutory “labor organizations,” only because they
acted as “agents” for the other four in a “joint venture.”
Id. at 372–374. In any event, the case predates the Su-
preme Court’s decision in Jacksonville Terminal, and is
therefore of dubious precedential value for the proposi-
tion for which it is asserted.
In sum, the essence of the dispute in this case is be-
tween an RLA-covered employer and an RLA-covered
union, concerning RLA-covered, union-represented em-
ployees. A Federal court lawsuit to adjudicate the pri-
vate parties’ respective rights under the RLA is pending.
The majority advances no persuasive reason or authority
for asserting jurisdiction over the dispute, and Supreme
Court precedent counsels against it. We should decline
to decide this case.

4 Sec. 1 First, Sixth (45 U.S.C. Sec. 151 First, Sixth). Because the
RLA does not proscribe secondary activity, the status of DHL under the
RLA is not important.
5 This case is the obverse of those cases that led to the 1959 amend-
ment of Sec. 8(b)(4)(B), closing the “loophole” to cover “persons” and
not just “employers.” See Steelworkers v. NLRB, 376 U.S. 492, 500–
501 (1964), citing, e.g., Great Northern Railway Co. v. NLRB, 272 F.2d
741 (9th Cir. 1959). In those cases, a primary NLRA dispute (between
a labor organization and an NLRA employer) was expanded to a sec-
ondary RLA rail carrier, with appeals to its employees. There, NLRB
assertion of jurisdiction made sense because the NLRA proscribes
secondary boycotts in aid of a primary dispute. But where the primary
labor dispute is between RLA covered parties, as here, asserting juris-
diction would both serve no purpose under the NLRA and undermine
Congress’ determination to leave secondary conduct unregulated under
the RLA.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD826
Eric A. Taylor, Esq., for the General Counsel.
Jerry D. Anker, Esq. and R. Russell Bailey, Esq. (Air Line Pi-
lots Association, Int’l), of Washington, D.C., and David M.
Cook, Esq. (David M. Cook, LLC), of Cincinnati, Ohio, for
the Respondent.
Norman A. Quandt, Esq. (Ford & Harrison LLP), of Atlanta,
Georgia, Charles I. Cohen, Esq. and Jonathan C. Fritts,
Esq. (Morgan, Lewis & Bockius LLP), of Washington,
D.C., and Scott A. Carroll, Esq. (Vorys, Sater, Seymour &
Pease LLP), of Cincinnati, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOSEPH GONTRAM, Administrative Law Judge. This case was
tried in Cincinnati, Ohio, on March 10 and 11, 2004. The
charge was filed September 10, 2003, and the complaint was
issued December 10, 2003.1 The complaint charges that the Air
Line Pilots Association (ALPA or the Respondent) has violated
Section 8(b)(4)(ii)(A) and (B) of the National Labor Relations
Act (the Act) by attempting to force DHL Holdings (USA),
Inc., including DHL Worldwide Express, Inc., a wholly-owned
subsidiary, to condition its operation of the package delivery
business of its newly acquired subsidiary, Airborne Express,
Inc., on the subsidiary’s insistence that the air transportation
aspects of the business be handled by ALPA pilots. ABX Air,
Inc. (ABX) handles the air transportation aspects of Airborne
Express’ package delivery business. ALPA maintains that the
Railway Labor Act (RLA) governs its conduct, not the National
Labor Relations Act. ALPA further denies that it violated the
Act, and maintains that its actions properly sought to enforce
the scope clause of its collective-bargaining agreement with
DHL Airways, Inc. ALPA maintains that the scope clause is a
valid work preservation provision, it applies to ABX’s air
transportation services for Airborne Express, and it requires
that ALPA members operate such air transportation services.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that DHL Worldwide Ex-
press, Inc. (referred to as DHL Holdings) is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. The Respondent also admits that it is a labor
organization within the meaning of Section 2(5) of the Act.
The Respondent disputes jurisdiction on the ground that its
conduct is not governed by the Act. This contention is ad-
dressed below.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulation
The parties have stipulated to the following facts.2

1 All dates are in 2003, unless otherwise indicated.
2 References to attached exhibits have been omitted. The exhibits
and the unabridged stipulation are contained in Jt. Exh. 1.
1. In 1990, Respondent Air Line Pilots Association (ALPA)
was certified by the National Mediation Board, pursuant to the
Railway Labor Act, as the collective-bargaining representative
of the pilots employed by DHL Airways, Inc. (DHL Airways).
2. At the time ALPA was certified, DHL Airways was a
wholly-owned subsidiary of a holding company then known as
DHL Worldwide Express, Inc. and now known as DHL Hold-
ings (USA), Inc. (To avoid confusion with another entity, de-
scribed below, also named DHL Worldwide Express, Inc., this
stipulation will refer to the holding company throughout as
(DHL Holdings).)
3. DHL Holdings operates an integrated freight handling
business under the brand name DHL Express.
4. The principal business of the DHL Holdings’ network is
the rapid pickup, sorting, and carriage on a time definite basis
of documents, small parcels, and other freight by air, ground,
and other means.
5. Prior to March 2001, both the ground operations (i.e.,
pickup, sorting, loading, and delivery of freight) and the air
operations associated with DHL Holdings’ business in the
United States were performed by DHL Airways.
6. In December 1998, ALPA entered into a collective-
bargaining agreement with DHL Airways covering its pilots.
7. Contemporaneous with entering into the ALPA/DHL
Airways collective-bargaining agreement, DHL Holdings (then
known as DHL Worldwide Express, Inc.) executed a letter of
agreement.
8. In March 2001, DHL Holdings’ business in the U.S. was
restructured.
9. The March restructuring was necessary because DHL In-
ternational, Ltd., a foreign entity, desired to acquire majority
ownership of the DHL Holdings’ network. Under U.S. law, a
minimum of 75 percent of the voting power and 55 percent of
the equity in a U.S. airline must be in the hands of U.S. citi-
zens.
10. In the March 2001 restructuring, DHL Holdings sold 75
percent of the voting interest and 55 percent of the equity inter-
est of DHL Airways to a U.S. citizen, William Robinson. At the
same time, DHL Holdings transferred DHL Airways’ assets
related to its ground operations to a newly created wholly-
owned subsidiary to which it gave the name DHL Worldwide
Express, Inc. (DHL Worldwide), leaving DHL Airways with
only the assets related to its air operations.
11. As a result of the March 2001 restructuring, the ap-
proximately 9000 employees of DHL Airways who had per-
formed its ground operations (such as pickup, sorting, loading,
and delivery) became employees of DHL Worldwide, but con-
tinued to perform roughly the same work they had previously
performed. The approximately 1000 employees of DHL Air-
ways who had performed air operations remained employees of
DHL Airways performing roughly the same work they had
previously performed.
12. Contemporaneously with the March 2001 restructuring,
DHL Holding, DHL Worldwide, and DHL Airways entered
into contractual arrangements with each other that enabled
them jointly to continue to operate the DHL Holdings’ air and
ground transportation network in the U.S. in the same seamless
AIR LINE PILOTS ASSN. 827
manner that it had previously been operated by DHL Airways
alone.
13. In March 2003, DHL Worldwide Express B.V., a Neth-
erlands corporation that is the 100 percent owner of DHL Hold-
ings, announced publicly that it had entered into an Agreement
and Plan of Merger (Merger Agreement) with Airborne, Inc.
(Airborne).
14. At the time of the Merger Agreement, Airborne was an
independent, publicly owned company engaged in the business
of providing time-sensitive delivery of documents, letters, small
packages, and freight to virtually every U.S. ZIP code and more
than 200 countries worldwide.
15. Under the Merger Agreement, and in order to comply
with the same citizenship requirements set forth in paragraph 9,
Airborne agreed to separate its airline subsidiary, known as
ABX Air, Inc. (ABX), after which Airborne—now consisting
only of ground operations—was to become a new subsidiary of
DHL Holdings.
16. The detailed terms of the Merger Agreement and related
documents were set forth in a proxy statement sent to Airborne
shareholders in July 2003.
17. In a transaction independent of the DHL-Airborne
merger, DHL Holdings sold its remaining shares of DHL Air-
ways, Inc. on July 14, 2003. Following that transaction, 100
percent of the ownership and control of DHL Airways, Inc. was
held by a group of independent investors headed by its Chief
Executive John Dasburg.
18. The new owners of DHL Airways changed the name of
the company to ASTAR Air Cargo, Inc. (ASTAR).
19. ASTAR entered into a new Aircraft, Maintenance and
Insurance (ACMI) Agreement setting forth the terms of its
freight hauling services with DHL Worldwide, effective as of
July 14, 2003.
20. ABX was separated from Airborne and became an inde-
pendent publicly-owned company effective August 15, 2003.
21. The acquisition of Airborne by DHL Worldwide Ex-
press, B.V., pursuant to the Merger Agreement, was consum-
mated on August 15, 2003.
22. ABX, upon its separation from Airborne, entered into its
own ACMI Agreement with DHL Holdings’ new wholly-
owned subsidiary Airborne, Inc. effective August 15, 2002.
This ACMI Agreement sets forth the terms of ABX’s freight
hauling services on behalf of DHL Holdings.
23. In addition to the ACMI agreement referred to in para-
graph 22, ABX entered into a Hub and Line Service Agreement
with DHL Holdings’ new wholly-owned subsidiary, Airborne,
Inc., effective August 15, 2003.
24. On June 16, 2003, ALPA sent a letter to John Fellows,
CEO of DHL Holdings and DHL Worldwide.
25. Fellows responded to ALPA in an undated letter sent on
or about June 27, 2003.
26. Pursuant to the correspondence referred to in paragraphs
24 and 25, a meeting was held on August 7 between representa-
tives of DHL Holdings, DHL Worldwide, and ALPA.
27. At the conclusion of the meeting of August 7, 2003, the
ALPA representatives handed the DHL representatives a letter
and grievance dated August 7.
28. On August 11, 2003, DHL Holdings and DHL World-
wide filed a complaint against ALPA in the United States Dis-
trict Court for the Southern District of New York.
29. On August 18, 2003, ALPA filed an Answer and Coun-
ter Claims for Immediate Injunctive Relief. ALPA also filed a
motion for a temporary restraining order and a preliminary
injunction. That entire action is now stayed pending resolution
of the instant charge.
30. On August 18, 2003, Judge Loretta A. Preska of the
United States District Court for the Southern District of New
York denied ALPA’s Motion for a Temporary Restraining
Order and scheduled and entered an Order to Show Cause
scheduling a hearing on August 28, 2003, on whether a pre-
liminary injunction should be entered as requested by ALPA.
31. At the conclusion of the hearing on August 28, 2003,
Judge Preska orally requested further briefs and ordered a fur-
ther hearing to be held on September 4, 2003.
32. On September 3, 2003, ABX filed an unfair labor prac-
tice charge against ALPA in Case 9–CE–65.
33. At the conclusion of the court hearing on September 4,
Judge Preska orally stayed all further proceedings pending the
decision of the NLRB on the unfair labor practice charge.
34. ABX withdrew the 8(e) charge in Case 9–CE–65 and
filed a charge in Case 9–CC–1660 upon which a complaint
issued and which is the subject of the instant proceedings.
35. DHL Holdings has begun the process of combining the
ground operations of Airborne with the ground operations of
DHL Worldwide into one integrated rapid freight system under
the brand name DHL Express.
36. ABX and ASTAR are independent companies that since
August 15, 2003 compete for the air freight services required
by DHL Holdings and its various subsidiaries.
37. ALPA is the oldest and largest labor organization repre-
senting airline pilots covered by the Railway Labor Act (RLA)
in the United States. Presently, ALPA represents over 62,000
airline pilots under the RLA. ALPA also represents approxi-
mately 17 airline pilots at a company in Albuquerque, New
Mexico, called Ross Aviation, Inc. (Ross), which performs
contract flying for the U.S. Department of Energy. Ross is not a
carrier under the RLA, 45 U.S.C. § 181. It is governed by the
National Labor Relations Act (NLRA).
38. ALPA also represents in excess of 1000 non-RLA cov-
ered employees based in Canada who work for various Cana-
dian airlines some of which regularly fly between points in
Canada and points in the United States.
39. On September 4, 1996, ALPA filed an unfair labor prac-
tice charge against Ross alleging that Ross engaged in certain
conduct violative of Section 8(a)(5) and 8(d) of the NLRA.
Subsequently the Regional Director for Region 28 of the Na-
tional Labor Relations Board issued a “Complaint and Notice
of Hearing” based on the allegations of the charge filed by
ALPA.
40. On December 19, 2003, Administrative Law Judge Bur-
ton S. Kolko of the United States Department of Transportation
issued a “Recommended Decision” finding that ASTAR Air
Cargo, Inc. is a citizen of the United States and is not controlled
by DHL Holdings or any affiliated entity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD828
41. At all times on and after August 7, 2003, DHL Holdings,
DHL Worldwide, and Airborne (as it existed both before and
after the August 15 merger) have been employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the NLRA.
B. Additional Facts
1. Background
In 1998, DHL Holdings, the parent holding company of
DHL Airways, had a small share of the time sensitive freight
hauling business in the United States. Also in 1998, DHL Air-
ways and ALPA entered into a collective-bargaining agreement
that covered DHL Airways flight crew employees—pilots, co-
pilots, and flight engineers. After the execution of that agree-
ment, DHL Holdings agreed, on behalf of itself and its succes-
sors, to be bound by the agreement’s “scope” language. The
scope language of the collective-bargaining agreement (sec.
1.B) provides in pertinent part as follows:
1. Except as provided in paragraph B.4, all present
and future flying performed on behalf of the Company or
any affiliate . . . shall be performed by pilots whose names
appear on the Pilots’ System Seniority List in accordance
with the terms and conditions set forth in this Agreement.
2. It is the Company’s intent to handle permanent in-
creases in volume through the acquisition of additional air-
lift capacity rather than subcontracting, and to use pilots
on the Pilots’ System Seniority List to the maximum ex-
tent possible.3
With respect to successorship, the agreement provides as fol-
lows (sec. 1.D):
This Agreement shall be binding upon any successor, includ-
ing without limitation, any merged company or companies,
assignee, purchaser, transferee, administrator, receiver, execu-
tor, and/or trustee of the Company or DHL Worldwide Ex-
press, Inc. (such entity to be deemed a “successor”). The
Company and DHL Worldwide Express, Inc. shall require a
successor to assume and be bound by all the terms of this
Agreement as a condition of any transaction that results in a
successor.
The letter agreement signed by DHL Holdings is dated De-
cember 21, 1998 and provides in pertinent part as follows:

3 ALPA maintains that the following paragraph in the scope provi-
sion of the collective-bargaining agreement is relevant to this case.
4.e. If the Company commits to acquire an aircraft that will
result in a net addition to the number of aircraft being operated by
the pilots on the Pilots’ System Seniority List, the Company may
charter an aircraft of comparable or smaller size, range and cargo-
carrying capacity for a reasonable period of time, not to exceed
one (1) year, required to lease or purchase the additional aircraft
and train the necessary crews. . . . ALPA agrees to meet and con-
fer with the Company in the event that the Company wishes to ex-
tend a charter pursuant to this exception beyond one (1) year.
However, there is no evidence that DHL Holdings or DHL World-
wide has committed to acquire aircraft. Other than showing how the
parties agreed to resolve the impact on ALPA members of the acquisi-
tion by DHL Airways of additional aircraft, this paragraph is not rele-
vant to the issues in this case.
Worldwide [herein called DHL Holdings—see para-
graph 2 of the stipulation], which owns and/or controls
Airways, agrees that it and any of its successors (as de-
fined in Section 1 of the Agreement) hereby adopt and
agree to be bound by all terms and conditions provided in
Section 1 of the Agreement.
It is further expressly agreed that any disputes which
arise out of grievances or out of interpretation or applica-
tion of this Letter or Section 1 of the Agreement between
ALPA and Worldwide and/or Airways will be subject to
determination in accordance with Section 1.F of the
Agreement.
Section 1.F of the Agreement provides that grievances filed
by ALPA alleging violations of section 1 shall be submitted to
binding arbitration.
After the restructuring and the merger in August 2003, DHL
Worldwide Express and Airborne were wholly-owned ground
transportation subsidiaries of DHL Holdings. Both ground
transportation entities utilize the same brand (DHL Express) in
conducting their activities. On the other hand, ASTAR and
ABX are airline companies that are separate and independent
from each other and from DHL Holdings. Each airline has a
separate long-term ACMI agreement with one of DHL Hold-
ings’ ground transportation subsidiaries; ASTAR’s ACMI
agreement is with DHL Worldwide Express, Inc. and ABX’s
ACMI agreement is with Airborne, Inc.
2. Different operations of ASTAR and ABX
ASTAR, formerly a subsidiary of DHL Holdings, is an inde-
pendent air carrier engaged in the air freight transportation
business.4 ASTAR operates approximately 38 aircraft from its
base at the Cincinnati/Northern Kentucky International Airport
(CVG), and employs 450–500 flight crew personnel who are
represented by ALPA.5 ASTAR serves approximately 33 cities
and flies an average of about 900,000 pounds of freight per
night. ASTAR has never flown into ABX’s hub in Wilmington,
Ohio to pick up or deliver freight, and it does not fly into or out
of the regional hubs that ABX serves to pick up or deliver
freight. Indeed, ASTAR does not have a system of regional
hubs. Contrary to ABX, ASTAR does not supply its own
ground transportation system and does not load its aircraft.
Instead, DHL Worldwide handles all ground operations for
ASTAR.
ABX, formerly a subsidiary of Airborne, is an independent
air carrier engaged in the air freight transportation business.
ABX’s fleet consists of 115 aircraft, with an additional two
aircraft undergoing modification. Of these 115 aircraft, 99 of
them fly in and out of ABX’s Wilmington, Ohio hub on a
nightly basis. Another 9 or 10 aircraft fly in and out of the
Wilmington hub on a daily basis as part of ABX’s daytime

4 On May 13, 2004, the Department of Labor affirmed the adminis-
trative law judge’s conclusion that ASTAR is not controlled by DHL
Holdings or any entity affiliated with DHL Holdings. DHL Airways,
Inc. n/k/a ASTAR Air Cargo, Inc., Docket OST–2002–13089. In any
event, ALPA does not contend otherwise. (See Stipulation 36.)
5 All of the data relating to the operations of ASTAR and ABX are
effective the date of the merger with Airborne, August 15, 2003.
AIR LINE PILOTS ASSN. 829
operation. ABX serves approximately 105 cities and flies an
average of 2.7 million pounds of freight per night from and into
its Wilmington hub. ABX employs about 7200 employees, with
about 6000 being employed at the Wilmington hub. About 750
of these employees are flight crew personnel. In addition to the
Wilmington hub, ABX operates a regional hub network in
which it flies freight into and out of 11 regional hubs spread
throughout the United States. On a daily basis, ABX transports
about 1.8 million pieces of freight weighing about 8.5 million
pounds for Airborne.
ABX transports its freight in proprietary unit load devices
(ULDs) known as “C” containers. ABX holds a patent on the
“C” container. The type of ULD used most widely in the freight
hauling industry is the “A” container. “C” containers are ap-
proximately one sixth the size of an “A” container. ABX’s
principal competitors, including ASTAR, Federal Express, and
United Parcel Service, use “A” containers in the transportation
of freight. ABX and ASTAR specially configure their aircraft
to handle “C” containers and “A” containers respectively. The
different containers necessitate different types of structural
reinforcement and restraint systems for the purpose of support-
ing the weight of the containers and securing the containers in
the aircraft. Also, “C” containers are designed to fit through
conventional passenger doors on aircraft whereas “A” contain-
ers require the installation of larger cargo doors. Because of the
different restraint systems and weight capacities for the “A”
and the “C” containers, aircraft designed to handle “A” con-
tainers cannot handle “C” containers, and vice versa.6 Simi-
larly, “A” containers and “C” containers cannot be intermixed
on the same aircraft. Retrofitting aircraft to handle one type of
container as opposed to another is both expensive and time
consuming, if it could be done at all.
The sort of facilities at Wilmington are not designed to han-
dle the containers flown by the ASTAR aircraft just as the sort
facilities at CVG are not designed to handle the containers
flown by the ABX aircraft. Moreover, the sort capacity in Wil-
mington is approximately four times the capacity of the sort
facilities at CVG. In addition, the process of loading an aircraft
is different when using “C” as opposed to “A” containers. ABX
has developed a unique conveyor belt system for loading its
aircraft with “C” containers. ABX also holds a patent on this
“C” container loading system. By contrast, “A” containers are
loaded by a device called a “K” loader, which is an elevator
that lifts the container up to the level of the aircraft. These dif-
ferences in, and incompatibility between, the sort facilities and
the retrofitted aircraft handling the different containers used by
ASTAR and ABX applies throughout the various airports to
which ASTAR’s and ABX’s aircraft are flown.
ABX supplies its own ground transportation system through
the use of independent contractors and trucking companies.
These companies, numbering approximately 150 to 200, pro-

6 It is possible, through the use of pallets, to adapt aircraft carrying
“A” containers to be able to carry “C” containers. However, the evi-
dence fails to demonstrate whether such adaptations are economically
feasible or cost effective. Moreover, regulatory constraints apply to and
limit modifications to aircraft.
vide personnel and about 1500 trucks to transport freight by
ground within the areas covered by ABX’s regional hubs.
All of the aircraft flown by ASTAR require three-person
flight crews. On the other hand, all of the aircraft flown by
ABX, except for 17 DC-8s, require two-person crews. ABX’s
aircraft and pilots have a higher category rating than ASTAR’s
pilots and aircraft. All of ABX’s aircraft and pilots are certified
as category II, and some as category III, which allows them to
land when there is less visibility. ASTAR’s pilots and aircraft
are rated as category I, which limits the pilots’ ability to fly in
bad weather because category I pilots require enhanced visibil-
ity in order to land their aircraft.
ALPA has long represented the flight crew personnel of
ASTAR and its predecessor, DHL Airways. ALPA has never
been certified or recognized as the collective-bargaining repre-
sentative of any of ABX’s employees. Since approximately
1983, the International Brotherhood of Teamsters, Local 1224,
has represented the ABX flight crews for purposes of collective
bargaining. There is no relationship between Teamsters Local
1224 and ALPA.
The work that ABX performs for DHL Holdings, through its
Airborne subsidiary, accounts for 99 percent of ABX’s reve-
nue. ABX has total annual revenue of about $1 billion, so the
work it performs for DHL Holdings is worth about $990 mil-
lion. If ALPA’s position were to prevail, and if ABX were to
lose its business with Airborne, ABX would face dire and pos-
sibly fatal consequences, especially with the market for its air-
craft being, at best, limited. The impact on DHL Holdings
would also be severe. The substantial deficit in the number of
necessary aircraft, a deficit that could not be rectified before the
passage of considerable time, is simply the most prominent of
the many reasons why ASTAR would be unable and incapable
of handling ABX’s freight hauling business. ASTAR would be
unable to carry about 2 million pounds of DHL Holdings’ cus-
tomer freight (out of a total of 3.6 million pounds) that is sup-
posed to move by air every night. Should this occur, it is not
unreasonable to infer further, and perhaps fatal, consequences
to DHL’s freight hauling business in the United States from the
resulting loss of customer confidence.
3. Procedural status and issues
On June 16, 2003, ALPA sent a letter to DHL Holdings set-
ting forth its claim that the proposed merger between DHL and
Airborne would require Airborne to use ASTAR’s ALPA pilots
for all Airborne’s flying. ALPA based its claim on (1) ALPA’s
collective-bargaining agreement with DHL Airways and (2)
DHL Holdings’ agreement to be bound by the scope clause in
that collective-bargaining agreement. DHL Holdings did not
agree with ALPA’s claim, and on August 7 ALPA presented a
formal grievance to DHL Holdings. This grievance claimed that
implementation of the ACMI agreement between ABX and
Airborne, Inc. would be a direct violation of the scope clause of
the collective-bargaining agreement between ALPA and DHL
Airways, to which DHL Worldwide is bound as the successor
to DHL Airways, and to which DHL Holdings is bound by
virtue of its December 21, 1998 letter agreement. The grievance
further claimed that ALPA pilots employed by ASTAR should
perform all flying for Airborne.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD830
On August 11, DHL Holdings filed a declaratory judgment
action in the United States District Court for the Southern Dis-
trict of New York, Case No. 03-CV-6082 (LAP), seeking a
determination that the collective-bargaining agreement does not
prohibit ABX from providing air transportation services for
DHL Holdings’ postmerger Airborne subsidiary. On August 18,
ALPA filed an answer and counterclaim seeking (1) an order to
compel expedited arbitration of its grievance with DHL Hold-
ings and DHL Worldwide, and (2) an injunction to restrain
DHL Holdings and its subsidiaries from contracting air trans-
portation services to ABX until the arbitration has been con-
cluded.
On August 28, a hearing was held before District Judge
Loretta A. Preska. During the course of that hearing, ALPA
reiterated and made clear its position that only ALPA members
employed by ASTAR could fly the freight for Airborne that
had previously and was presently being flown by the Teamsters
Union flight crews of ABX. ALPA takes this position unde-
terred by the fact that the many differences in the size, opera-
tions, pilot qualifications, and capabilities of ASTAR, ABX,
and their respective pilots render ALPA incapable of handling
much of the ABX flying that ALPA claims for itself.
ABX filed an unfair labor charge with the Board prior to the
resumption of the hearing before Judge Preska. District Judge
Preska then stayed further proceedings pending the resolution
of the present charge. The issues are (1) whether the Board has
jurisdiction over this dispute and, if so, (2) whether ALPA’s
August 7 grievance and August 18 counterclaim are unfair
labor practices under Section 8(b)(4)(ii)(A) and (B) of the Act.
III. ANALYSIS
A. Jurisdiction
Section 8(b) of the Act prohibits unfair labor practices by
“labor organizations” or their agents. Accordingly, the initial
question is whether ALPA is a “labor organization,” and the
resolution of this question is straightforward, if only decep-
tively so.
Section 2(5) of the Act defines a labor organization as fol-
lows:
The term “labor organization” means any organization of any
kind . . . in which employees participate and which exists for
the purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.
The definition of labor organization is to be interpreted and
applied broadly. Electromation, Inc., 309 NLRB 990, 992
(1992), enfd. 35 F.3d 1148 (7th Cir. 1994). ALPA has admitted
in this proceeding that it is a labor organization.7 Moreover, the
Board has found, in cases unrelated to the present proceeding,
that ALPA is a labor organization under Section 2(5). Douglas
Aircraft Co., 221 NLRB 1180 (1975); see Sis-Q Flying Service,

7 Tr. 50. (References to the transcript of the hearing are designated
as Tr.) ALPA qualified this admission by stating, “at least for some
purposes we’re a labor organization.” However, ALPA’s qualification
only concerned the effect of the admission, not ALPA’s status as a
labor organization under the Act.
197 NLRB 195 (1972). Accordingly, these factors support a
finding that ALPA is a labor organization under the Act. See
Masters, Mates & Pilots Local 47 (Chicago Calumet Stevedor-
ing Co.), 125 NLRB 113, 132 fn. 19 (1959); Pacific Far East
Line, 174 NLRB 1168 (1969).
ALPA represents approximately 17 employees of Ross Avia-
tion, Inc. Ross Aviation is not covered by the RLA and its pi-
lots are employees within the meaning of Section 2(3) of the
Act. In 1996, ALPA filed an unfair labor practice charge with
the Board on behalf of these employees. ALPA filed the unfair
labor practice charge against Ross Aviation, at least in part, to
protect its status as the labor organization that was the exclu-
sive bargaining representative pursuant to the Act of the Ross
employees. This factor also supports a finding that ALPA is a
labor organization under the Act. See Masters, Mates & Pilots
Local 47 (Chicago Calumet Stevedoring Co.), supra at 132.
ALPA argues that neither Ross nor its employees have any
connection with the facts or circumstances of the present case.
However, this happenstance does not change ALPA’s status in
this case as a labor organization. “[T]he status of the individu-
als involved in an organization’s dispute is not one of the re-
quirements set forth in the statutory definition of a labor or-
ganization. The requirement is merely that it be an organization
in which ‘employees’ participate.” (Emphasis in original.)
Masters, Mates & Pilots Local 47 (Chicago Calumet Stevedor-
ing Co.), supra at 132; National Marine Engineers Beneficial
Assn. v. NLRB, 274 F.2d 167 (2d Cir. 1960), enfg. 121 NLRB
208 (1958); see also Production Workers Local 707 (Checker
Taxi), 283 NLRB 340 (1987).
The statute’s prerequisite that employees participate does not
set forth any minimum number of such employees that are nec-
essary to meet the statutory definition. Similarly, the Board has
not established any minimum number of employees that are
necessary to meet the definition. See Masters, Mates & Pilots
Local 47 (Chicago Calumet Stevedoring Co.), 146 NLRB 116,
118 (1964); Masters, Mates & Pilots Local 47 (Chicago Calu-
met Stevedoring Co.), 144 NLRB 1172 (1963). Nor has the
Board attempted to impose other types of numerical prerequi-
sites, such as “substantial number,” on the number or percent-
age of employees necessary to constitute a “labor organiza-
tion.” Id.; Pacific Far East Line, supra; see Teamsters Local 87
(DiGiorgio Wine Co.), 87 NLRB 720, 721 (1949) (“Although
Teamsters 87 admits to membership, and claims to represent,
DiGiorgio’s agricultural laborers, it also numbers among its
members employees of other employers in Southern California.
It clearly, therefore, falls within the Act’s definition of a labor
organization.”)
In short, with respect to the statutory definition that employ-
ees participate, the Ross Aviation pilots are “employees,” and
they “participate” as evidenced by their designation of ALPA
as their exclusive bargaining representative. With respect to the
Act’s requirement that the organization deal with employers
concerning conditions of employment, the allegations of the
unfair labor practice charge filed by ALPA against Ross Avia-
tion demonstrate that ALPA fulfills this requirement. More-
over, ALPA does not dispute that its Ross Aviation members
participate in ALPA nor does ALPA dispute that it deals with
Ross Aviation concerning conditions of employment. See also
AIR LINE PILOTS ASSN. 831
Production Workers, Local 707 (Checker Taxi), 273 NLRB
1178, 1179 (1984), remanded on other grounds 793 F.2d 323
(DC Cir. 1986) (in admitting that they were labor organizations,
the Respondents “avow[ed] that they exist at least in part for
the purposes set forth in Section 2(5) of the Act”). Accordingly,
ALPA falls within the statutory definition of labor organization.
ALPA, while acknowledging that it is a labor organization
under the Act, argues that under Railroad Trainmen v. Jackson-
ville Terminal Co., 394 U.S. 369 (1969), the Board does not
have jurisdiction of this dispute. In Jacksonville Terminal, the
terminal company sought a State court injunction to prevent the
unions, which were involved in a labor dispute with a railroad
company, from picketing the terminal used by the railroad
company. All three of these entities—the unions, the railroad
company, and the terminal company—were subject to the
Railway Labor Act (RLA). The State court issued the injunc-
tion. The Supreme Court reversed on the ground that the RLA,
which governed the picketing, protected the picketing from
State proscription.
Before addressing the application of the RLA, the court held
that the jurisdiction of the State court was not ousted by the
primary and exclusive jurisdiction of the Board. The Unions’
national membership included a small percentage of employees
who were not subject to the RLA, and who were possibly sub-
ject to the NLRA. The unions argued that this was sufficient to
“bring the present dispute arguably within the NLRA, and they
assert that until the National Labor Relations Board decides
otherwise, no court may assume jurisdiction over the contro-
versy.” Id. at 375–376. The Supreme Court rejected this con-
tention and stated, “And when the traditional railway labor
organizations act on behalf of employees subject to the Railway
Labor Act in a dispute with carriers subject to the Railway La-
bor Act, the organizations must be deemed, pro tanto, exempt
from the National Labor Relations Act.” Id. at 376–377. The
court continued, “This is a railway labor dispute, pure and sim-
ple [and] . . . the NLRA has no direct application to the present
case.” Id. at 377.
Jacksonville Terminal is inapposite and does not direct a
conclusion that the Board lacks jurisdiction over the present
dispute. In the present case, ALPA is allegedly threatening
DHL Holdings and its subsidiaries, employers within the mean-
ing of Section 2(2), (6), and (7) of the NLRA, with the object of
forcing these employers to stop doing business with ABX, at
least insofar as ABX’s work force is presently represented for
purposes of collective bargaining. Accordingly, all the parties
to this proceeding are not subject to the RLA as they were in
Jacksonville Terminal, and this is not a “railway labor dispute,
pure and simple.” Moreover, in Jacksonville Terminal, the Su-
preme Court was presented with a case that was initiated by the
terminal company, where the Board had not intervened or as-
serted jurisdiction, and where the application of the NLRA to
the dispute was, at best, arguable. On the other hand, the Board
initiated the present proceeding, and the application of the
NLRA to this proceeding is more certain, especially in light of
ALPA’s status as a labor organization under the Act and DHL
Holdings’ status as an employer under the Act.
The assertion of jurisdiction is also consistent with Board
precedent. Electrical Workers (B. B. McCormick & Sons), 150
NLRB 363 (1964), involved a charge against unions whose
membership was composed of statutory and nonstatutory em-
ployees. The Board held that the unions violated Section
8(b)(4)(B) of the Act when they engaged in a secondary boy-
cott against an employer covered by the Act, even though the
primary employer was subject to the RLA. The Board also held
that the unions’ actions were subject to the Act even though
their “primary dispute was with an employer subject to the
Railway Labor Act and whose employees are not ‘employees’
under the National Labor Relations Act.” Id. at 372. The facts
of the present case are like the facts in B. B. McCormick in that
ALPA represents both statutory and nonstatutory employees,
ALPA is (allegedly) engaged in secondary activity against a
neutral employer (DHL Holdings) that is subject to the Act, and
it’s primary dispute is with ABX, an employer subject to the
RLA, whose employees are not employees under the Act. See
also Masters, Mates & Pilots Local 47 (Chicago Calumet Ste-
vedoring Co.), 125 NLRB 113 (1959).
As the General Counsel accurately states in his posthearing
brief, the present case “involves a Section 2(5) labor organiza-
tion’s [alleged] coercion of Section 2(2) employers to enter into
an 8(e) agreement and to cease doing business in violation of
the NLRA.” Thus, Jacksonville Terminal is not controlling, and
Board precedent as well as the plain language of the statute,
which, in any event, is to be broadly applied, support the asser-
tion of jurisdiction over the present dispute. Under these cir-
cumstances, and for all the foregoing reasons, I conclude that
the Board has jurisdiction to hear and determine the present
alleged violation of Section 8(b)(4)(ii)(A) and (B).
B. Unfair Labor Practices
The complaint charges that ALPA’s grievance and federal
court counterclaim violated Section 8(b)(4)(ii)(A) and (B) of
the Act. These provisions, along with Section 8(e), constitute
the secondary boycott prohibitions of the Act. Section
8(b)(4)(ii)(A) and (B) makes it unlawful for a labor organiza-
tion
(ii) to threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where in ei-
ther case an object thereof is—
(A) forcing or requiring any employer or self-
employed person to join any labor or employer organi-
zation or to enter into any agreement which is prohib-
ited by section 8(e);
(B) forcing or requiring any person to cease using,
selling, handling, transporting, or otherwise dealing in
the products of any other producer, processor, or
manufacturer, or to cease doing business with any
other person, or forcing or requiring any other em-
ployer to recognize or bargain with a labor organiza-
tion as the representative of his employees unless such
labor organization has been certified as the representa-
tive of such employees under the provisions of section
9. . . .
Section 8(e) makes it unlawful for a labor organization and
an employer to enter into any contract or agreement, express or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD832
implied, whereby such employer ceases or agrees to cease do-
ing business with any other person.
ALPA has sought, in its grievance and in its federal court
counterclaim, to enforce an interpretation and application of the
scope clause in its collective-bargaining agreement with DHL
Worldwide and DHL Holdings in the following manner: to
require DHL Holdings and DHL Worldwide to terminate its
subsidiary’s contract with ABX, pursuant to which ABX pro-
vides flying services for Airborne, flying that has traditionally
and is presently being done by Teamsters members, and to
assign this flying to ALPA members. The filing of a grievance
and resorting to arbitration are actions within the meaning of
Section 8(b)(4)(ii)’s prohibition against threatening, coercing,
or restraining any person engaged in commerce. Newspaper &
Mail Deliverers (New York Post), 337 NLRB 608, 608 (2002);
Service Employees Local 32B-32J (Nevins Realty), 313 NLRB
392, 392 (1993); Elevator Constructors (Long Elevator), 289
NLRB 1095, 1095 (1988), enfd. 902 F.2d 1297 (8th Cir. 1990);
see Teamsters Local 705 v. NLRB (Emery Air Freight), 820
F.2d 448 (D.C. Cir. 1987) (distinguishing between having an
unlawful motive in filing a grievance and seeking to enforce an
unlawful contract provision). The remaining question is
whether ALPA’s actions in filing its grievance and seeking to
compel arbitration had an object of unlawfully forcing ABX to
cease doing business with Airborne, a subsidiary of DHL.
Section 8(b)(4)(ii) expresses “the dual congressional objec-
tives of preserving the right of labor organizations to bring
pressure to bear on offending employers in primary labor dis-
putes and of shielding unoffending employers and others from
pressures in controversies not their own.” NLRB v. Denver
Building Trades Council, 341 U.S. 675, 692 (1951) (addressing
Sec. 8(b)(4)(A), the predecessor to Sec. 8(b)(4)(ii)(B)). Simi-
larly, Section 8(e) only bars agreements with a secondary pur-
pose, which are distinguished by actions “directed against a
neutral employer, including the immediate employer when in
fact the activity directed against him was carried on for its ef-
fect elsewhere.” National Woodwork Mfrs. Assn. v. NLRB, 386
U.S. 612, 632 (1967). Nevertheless, the statute does not pro-
hibit primary disputes, such as disputes over the preservation of
bargaining unit work for bargaining unit employees. Id. at 635.
In determining whether the scope clause in ALPA’s collective-
bargaining agreement is a lawful work preservation agreement
or is tactically calculated to satisfy union objectives elsewhere,
the status of the parties should first be explained.
ABX is the primary employer in ALPA’s grievance and
counterclaim because ALPA seeks the ABX flying positions
for its members. See also Teamsters Local 705 (Emery Air
Freight), 278 NLRB 1303, 1304 fn. 7 (1986), remanded in part
on other grounds, Truck Drivers Local 705 v. NLRB, 820 F.2d
448 (D.C. Cir. 1987) (the Board noted that the union, which
was disputing the subcontracting of work to a nonunionized
company, did not represent the employees of the nonunionized
company, and found that the union’s primary dispute was with
that nonunionized company). It is not necessary that ALPA be
engaged in an actual dispute with ABX in order for ABX to be
the primary employer in this secondary boycott analysis, “so
long as the tactical object of the agreement and its maintenance
is that employer.” National Woodwork Mfrs. Assn. v. NLRB,
supra at 645. In the present case, the tactical object of ALPA’s
grievance and counterclaim is the air transportation service
performed by the Teamsters pilots who work for ABX.
On the other hand, ALPA does not have a dispute with DHL
concerning the terms and conditions of employment of ALPA
members employed by DHL. Nor is ALPA seeking to preserve
jobs that have been lost because no jobs have been lost. ALPA
claims that it is seeking to “preserve” for itself the jobs of an
airline that does business with DHL, and therefore, the scope
clause is a valid work preservation clause. However, ALPA’s
claim does not apply to a real loss of jobs, but rather, and at
best, to a loss of the opportunity for additional jobs from an
independent company. This type of “loss” is not within the
meaning of a lawful work preservation agreement. See National
Woodwork Mfrs. Assn. v. NLRB, supra at 630–631 (“We there-
fore have no occasion today to decide the questions which
might arise where the workers carry on a boycott to reach out to
monopolize jobs or acquire new job tasks when their own jobs
are not threatened by the boycotted product.”); Teamsters Local
25 (Emery Worldwide), 289 NLRB 1395, 1397 (1988) (“[W]e
do not find that Local 25’s object was to preserve work for its
members employed by Emery because, as of August 12, the
date Local 25 began pressuring Emery, Emery employees had
not lost any work.”) Indeed, ALPA’s claim (that the scope
clause in its collective-bargaining agreement requires that
ALPA members must handle the flying for airline companies
with whom DHL does business) uses the scope clause “as a
sword, to reach out and monopolize all the [flying] job tasks for
[ALPA] members.” National Woodwork Mfrs. Assn. v. NLRB,
supra at 630, citing Allen Bradley Co. v. Electrical Workers
Local 3, 325 U.S. 797 (1945).
A lawful work preservation agreement must pass two tests.
“First, it must have as its objective the preservation of work
traditionally performed by employees represented by the union.
Second, the contracting employer must have the power to give
the employees the work in question—the so–called ‘right of
control’ test.” NLRB v. Longshoremen, 447 U.S. 490, 504
(1980). ALPA’s actions satisfy neither of these tests. With re-
spect to the right of control test, DHL, the neutral party who
ALPA is attempting to coerce and restrain, does not have con-
trol over the labor relations of ABX and its employees. ABX is
an independent airline company and has negotiated its own
collective-bargaining agreement with the Teamsters Union.
Thus, DHL does not have the power to assign the flying per-
formed for ABX to ALPA members.
With respect to the first test, ALPA members have not tradi-
tionally performed flying duties for ABX. Indeed, there is no
evidence that ALPA members have ever performed flying du-
ties for ABX. Moreover, in determining the lawfulness of an
alleged work preservation agreement, “[t]he touchstone is
whether the agreement or its maintenance is addressed to the
labor relations of the contracting employer vis–a–vis his own
employees.” National Woodwork Mfrs. Assn. v. NLRB, supra at
644–645. As noted above, ALPA’s dispute does not concern
the terms and conditions of bargaining unit members, but rather
the union affiliation of ABX’s employees, who are presently
members of the Teamsters Union.
AIR LINE PILOTS ASSN. 833
The lawfulness of work preservation agreements most often
arises when employees’ traditional work is displaced or threat-
ened by technological innovation. See NLRB v. Longshoremen,
supra at 505. The present case does not involve a technological
innovation, nor have there been any displaced workers, unless,
of course, ALPA were allowed the opportunity to, and did,
prevail in the claim asserted in its grievance and counterclaim.
Nevertheless, in determining whether the scope clause has as its
objective the preservation of work traditionally performed by
employees represented by ALPA, it is proper to consider
whether the work is “fairly claimable” by ALPA. E.g., Food &
Commercial Workers Local 367 (Quality Food), 333 NLRB
771 (2001). “Fairly claimable work is work that is identical to
or very similar to that already performed by the bargaining unit
and that bargaining unit members have the necessary skill and
are otherwise able to perform.” Newspaper & Mail Deliverers
(Hudson County News), 298 NLRB 564, 566 (1990).
Work that is traditionally performed by bargaining unit em-
ployees, for the employer, and at the employer’s facility, has
been found to be fairly claimable. Retail Employees Local 876
(Allied Supermarkets), 174 NLRB 424, 425 (1969) (in-store
shelving and servicing work within the employer’s supermar-
kets); Hudson County News, supra (distribution of additional
publications within the same geographic area). Conversely, the
Board has found that work is not fairly claimable where it has
historically been performed by other employees, requires addi-
tional skills, is performed on different equipment, or is per-
formed outside the bargaining unit’s traditional worksites. E.g.,
Nevins Realty, supra (work was not historically performed by
bargaining unit members); Sheet Metal Workers Local 27
(Aerosonics, Inc.), 321 NLRB 540 (1996) (prefabricated metal
work that had not been performed by members of the bargain-
ing unit); Teamsters Local 705 (Emery Air Freight), supra at
1304–1305 (delivery work that had previously been subcon-
tracted, but which was essentially the same as the work per-
formed by bargaining unit members); New York Post, supra
(work that was the same as the work performed by bargaining
unit members, but in a different locality).
The ALPA bargaining unit members do not perform the fly-
ing for ABX, and as far as the record in this case discloses,
have never performed flying for ABX. ALPA members have
different skills and certifications than ABX’s Teamsters pilots,
and these would affect their ability to perform the flying ser-
vices in the same manner as the Teamsters pilots do. ALPA
members perform their jobs on different equipment than the
ABX pilots, including different airplanes, different reconfigura-
tions to airplanes, different loading mechanisms, and different
containers that hold the freight. Finally, the ABX pilots perform
their jobs at different worksites since they fly to many more and
many different destinations and utilize different hubs than
ALPA pilots. For all these reasons, the work sought by ALPA
in its grievance and counterclaim is not fairly claimable, and
the mere fact that the work is similar does not affect this con-
clusion. See also Teamsters Local 282 (D. Fortunato, Inc.), 197
NLRB 673, 678 (1972) (“[T]he fact that the driving of one
truck may well be similar to, and require like skills as, the driv-
ing of any other truck does not persuade us that all driving
work is therefore ‘fairly claimable’ by a unit of drivers.”)
ALPA argues that the core issue in this case is whether
ALPA’s conduct is primary or secondary in character, and that
its primary dispute is with DHL over a valid contractual provi-
sion that requires DHL to utilize ALPA members for all flying
performed by DHL or its successors. This argument ignores
ALPA’s contention in its grievance and counterclaim that all
flying services by ABX, or presumably any other independent
airline that would enter into an ACMI agreement with Air-
borne, must be performed by ALPA members. ALPA’s posi-
tion in its grievance and counterclaim expands the reach of the
scope clause to include not only flying done by DHL, but also
flying done by independent airline companies with whom DHL
or its subsidiaries have flying agreements. Accordingly, the
validity or lawfulness of the scope clause is not the issue, but
rather, ALPA’s conduct in seeking enforcement according to its
present interpretation of the clause. NLRB v. Enterprise Assn. of
Steam Pipefitters Local 638, 429 U.S. 507, 519 (1977) (recog-
nizing the continuing validity of the proposition that a valid
contract does not immunize conduct otherwise violative of the
statutory prohibition against secondary conduct). The secon-
dary and unlawful aspect of ALPA’s action in filing a griev-
ance against DHL is its intention to require DHL to cease doing
business with ABX, at least insofar as the pilots of ABX are not
represented for collective-bargaining purposes by ALPA.
ALPA’s primary dispute is with ABX because that airline
company has an agreement to provide flying services for a
subsidiary of DHL, and it does not employ ALPA members.
DHL is the neutral party through whom ALPA seeks to pres-
sure ABX at the risk of ceasing business with DHL. DHL is not
the party with whom ALPA has its primary dispute despite the
fact that ALPA’s collective-bargaining agreement with DHL is
the means through which ALPA seeks to apply its pressure.
ALPA, by seeking to apply its collective-bargaining agreement
in a way that would violate Section 8(e) of the Act, cannot es-
cape liability for its actions by cloaking the primary object and
opponent of its dispute in the mantle of that agreement.
ALPA acknowledges that a union violates Section
8(b)(4)(ii)(A) and (B) of the Act if the object of its actions is to
force a secondary or neutral employer to stop doing business
with a primary employer with whom the union is engaged in a
labor dispute. Yet, this is the conduct in which ALPA has en-
gaged by filing its grievance and its counterclaim. Indeed,
ALPA does not argue to the contrary. Rather, ALPA argues
that despite its object in filing the grievance and counterclaim,
the scope clause in the collective-bargaining agreement it seeks
to enforce is a valid attempt to preserve work for its members,
thus taking it out of the secondary boycott prohibitions of the
statute. However, as I have found above, ALPA’s interpretation
of the scope clause, including its subsequent attempts to en-
force that interpretation, does not have work preservation as its
object, either legally or factually. ALPA’s actions “were an
unambiguous attempt to force [DHL], a neutral employer, to
cease doing business with [ABX] or any other [airline] com-
pany that did not have a contract with the Respondent.” Team-
sters Local 705 (Emery Air Freight), 278 NLRB at 1304.8 Or,

8 As noted above, the Court of Appeals for the District of Columbia
Circuit remanded the case, in part, to the Board to explain and distin-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD834
to paraphrase the Supreme Court, ALPA’s grievance and coun-
terclaim were directed against a neutral employer, which in this
case was its immediate employer, DHL, when in fact the activ-
ity directed against DHL was carried on for its effect elsewhere,
viz., the representation of pilots employed by ABX. National
Woodwork Mfrs. Assn. v. NLRB, supra at 632.
Accordingly, ALPA has violated Section 8(b)(4)(ii)(A) and
(B) of the Act by filing a grievance in which it seeks to prohibit
DHL Holdings and DHL Worldwide, and its subsidiary, Air-
borne, Inc., from entering into and complying with an agree-
ment for ABX to provide flying services to Airborne, Inc. be-
cause ABX does not employ ALPA members, and by filing a
counterclaim in federal district court in which ALPA seeks to
compel arbitration of its grievance.
CONCLUSIONS OF LAW
1. At all times during the commission of the unfair labor
practices set forth, DHL Holdings, DHL Worldwide, and Air-
borne (as it existed both before and after the August 15 merger)
have been employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the NLRA, and have been per-
sons and employers within the meaning of Section
8(b)(4)(ii)(A) and (B).
2. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By filing a grievance and a counterclaim against DHL
Holdings and DHL Worldwide with an object to force or re-
quire DHL Holdings and DHL Worldwide to enter into and
comply with an agreement prohibited by Section 8(e) of the
Act, the Respondent has threatened, coerced, and restrained
DHL Holdings and DHL Worldwide, and has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(b)(4)(ii)(A) and Section 2(6) and (7) of the Act.
4. By filing a grievance and a counterclaim against DHL
Holdings and DHL Worldwide with an object to force or re-
quire DHL Holdings and DHL Worldwide to cease doing busi-
ness with ABX, Inc., or alternatively, to force or require ABX,
Inc. to recognize or bargain with the Respondent as the repre-
sentative of its employees, the Respondent has threatened, co-
erced, and restrained DHL Holdings and DHL Worldwide, and
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(4)(ii)(B) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. I shall recommend that the Respon-
dent withdraw its August 7, 2003 grievance and its August 18,
2003 counterclaim filed in the United States District Court for
the Southern District of New York. I shall also recommend that
the Respondent reimburse DHL Holdings and DHL Worldwide

guish between the union having an unlawful motive in filing a griev-
ance and the union seeking to enforce an unlawful contract provision.
This remand did not affect the Board’s analysis regarding work preser-
vation nor its holding that the union’s actions in attempting to restrain
Emery, viz., a strike, violated Sec. 8(b)(4)(ii)(B) of the Act.
for all reasonable expenses and legal fees, with interest, in-
curred in defending against the grievance and counterclaim.
Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 10
(1991).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, Air Line Pilots Association, AFL–CIO, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Seeking to enforce or apply, through grievance or arbitra-
tion, any collective-bargaining agreement with DHL World-
wide Express, Inc. or DHL Holdings (USA), Inc., where an
object thereof is to force or require DHL Worldwide Express,
Inc. or DHL Holdings (USA), Inc. or their subsidiaries to cease
doing business with ABX Air, Inc. or any other person.
(b) In any like or related manner violating Section
8(b)(4)(ii)(A) or (B) of the Act
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Withdraw the August 7, 2003 grievance against DHL
Holdings (USA), Inc. and DHL Worldwide Express, Inc.
(b) Withdraw the August 18, 2003 counterclaim filed in the
United States District Court for the Southern District of New
York in Case No. 03-CV-6082 (LAP).
(c) Reimburse DHL Holdings and DHL Worldwide for all
reasonable expenses and legal fees, with interest, incurred in
defending against the August 7 grievance and August 18 coun-
terclaim.
(d) Within 14 days after service by the Region, post at its un-
ion office copies of the attached notice marked “Appendix.”10
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 9, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Sign and return to the Regional Director sufficient copies
of the notice for posting by ASTAR, if it is willing, at all places
where notices to members are customarily posted.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
AIR LINE PILOTS ASSN. 835
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT attempt to enforce or apply our collective-
bargaining agreement with DHL Holdings (USA), Inc. or DHL
Worldwide Express, Inc. or any other employer if an object is
to force DHL Holdings (USA), Inc. or DHL Worldwide Ex-
press, Inc. or any other person to cease doing business with any
other person.
WE WILL NOT in any like or related manner violate Section
8(b)(4)(ii)(A) or (B) of the Act.
WE WILL withdraw the August 7, 2003 grievance against
DHL Holdings (USA), Inc. and DHL Worldwide Express, Inc.
WE WILL withdraw the August 18, 2003 counterclaim filed in
the United States District Court for the Southern District of
New York in Case No. 03–CV–6082 (LAP).
WE WILL reimburse DHL Holdings and DHL Worldwide for
all reasonable expenses and legal fees, with interest, incurred in
defending against the August 7 grievance and August 18 coun-
terclaim.
AIR LINE PILOTS ASSOCIATION