                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

       Argued October 2, 2000    Decided November 21, 2000 

                           No. 99-7223

                        Atlas Air, Inc., 
                     Appellee/Cross-Appellant

                                v.

                  Air Line Pilots Association, 
                     Appellant/Cross-Appellee

                        Consolidated with 
                             99-7243

          Appeals from the United States District Court 
                  for the District of Columbia 
                         (No. 99cv01100)

     Marcus C. Migliore argued the cause for appellant/cross-
appellee.  With him on the briefs were Jerry D. Anker and 
Jonathan A. Cohen.  Marta Wagner entered an appearance.

     Ronald B. Natalie argued the cause for appellee/cross-
appellant.  With him on the briefs was Douglas W. Hall.

     Before:  Ginsburg, Sentelle and Henderson, Circuit 
Judges.

     Opinion for the Court filed by Circuit Judge Sentelle.

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

                          I. Background

                                A.

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

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

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

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

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

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

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

     One area that will change if a union is certified is profit 
     sharing.  Our Profit Sharing Plan says clearly that em-
     ployees who have been certified by the National Media-
     tion Board for representation are not eligible for profit-
     sharing....  Of course, a union could choose to bargain 
     for profit sharing in subsequent negotiations, but it could 
     be years before any resolution is reached.
     
     If a union is certified, you instantly lose your profit 
     sharing.  If anyone promises you that you can keep your 
     profit-sharing should a union be certified--they're either 
     seriously mistaken, or they're intentionally misleading 
     you.
     
(Emphasis in original.)  The letter further noted that "[t]he 
loss of profit sharing could have a significant financial impact 
on you and your family" and included a chart detailing the 
likely impact of the plan's termination on the salaries earned 
by employees of varying levels of seniority.

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

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

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

                                B.

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

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

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

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

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

                          II. Discussion

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

               A. The Profit-Sharing Plan Exclusion

1.   Status Quo Obligations under the RLA

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

     No carrier, its officers or agents shall change the rates of 
     pay, rules, or working conditions of its employees, as a 
     class as embodied in agreements except in the manner 
     prescribed in such agreements or in section 156 of this 
     title.
     
45 U.S.C. s 152, Seventh.  RLA Section 6 requires that 
employers and employee representatives "shall give at least 
thirty days' written notice of an intended change in agree-
ments affecting rates of pay, rules, or working condi-
tions...."  Id. s 156.

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

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

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

2.   RLA Section 2, Third and Fourth

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

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

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

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

     No carrier, its officers or agents, shall deny or in any 
     way question the right of its employees to join, organize, 
     or assist in organizing the labor organization of their 
     choice, and it shall be unlawful for any carrier to inter-
     fere in any way with the organization of its employees 
     ... or to influence or coerce employees in an effort to 
     induce them to join or remain or not to join or remain 
     members of any labor organization....
     
Id. s 152, Fourth.  "These provisions prohibit employers 
from interfering with, coercing or influencing the representa-
tional choices of workers and from interfering with the right 
of employees to organize in labor unions."  ALPA v. Eastern 
Air Lines, Inc., 863 F.2d 891, 893 (D.C. Cir. 1988).

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

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

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

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

Corp., 305 N.L.R.B. 1119, 1119-20 (1992);  AMF Bowling Co., 
303 N.L.R.B. 167, 170 (1991), enforced in relevant part, 977 
F.2d 141, 145 (4th Cir. 1992);  Niagara Wires, Inc., 240 
N.L.R.B. 1326, 1327-28 (1979).

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

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

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

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

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

3.   Statute of Limitations

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

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

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

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

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

                   B. Atlas Air's Cross-Appeal

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

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

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

                         III. Conclusion

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

                                                             It is so ordered.

                                                                          