199 F.3d 477 (D.C. Cir. 1999)
Air Line Pilots  Association, International, Appellee/Cross-Appellantv.Northwest Airlines, Inc.,Appellant/Cross-Appellee
No. 98-7196 Consolidated with 98-7202
United States  Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1999Decided December 28, 1999Order Granted Rehearing En Banc March 9, 2000

Appeals  from the United States  District Court for the District of Columbia(No. 97cv01917)
John J. Gallagher argued the cause for appellant/cross  appellee.  With him on the briefs  were Cathy Wassberg, Neal  D. Mollen, and Intra L. Germanis.
Jerry Anker argued the cause for appellee/cross-appellant. With him on the briefs  were Elizabeth Ginsburg and James   K. Lobsenz.
Before:  Ginsburg, Sentelle, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge:


1
For more than 30 years  Northwest Airlines  has  required newly hired pilot trainees  to sign  individual employment contracts  called "Conditions  of Employment."  In 1995 Northwest added several new provisions   to the Conditions, including a clause under which each trainee  agreed to binding arbitration of any claim he might have  against Northwest for discrimination in employment.


2
The Air Line Pilots  Association (ALPA), which is  the union  that represents  Northwest pilots  once they have completed  their training, filed suit claiming that the carrier violated the  Railway Labor Act, 45 U.S.C.  151 et seq., by requiring  individual trainees  to agree to the Conditions  without first  having bargained with ALPA over them.  The district court  granted partial summary judgment for each party;  the court  enjoined Northwest, pending completion of the bargaining  and mediation process, from applying the Arbitration Clause  to pilots  who have completed their training and are represented by ALPA, but refused to enjoin the use of any other of  the Conditions.


3
Northwest appeals, claiming that under Alexander v.  Gardner-Denver Co., 415 U.S. 36 (1974), the arbitration of  individual statutory claims  is  not a mandatory subject of  collective bargaining and that Northwest is  therefore free to  bargain individually with its  employees  over the Arbitration  Clause.  We agree and accordingly reverse the judgment of  the district court on this  issue.


4
ALPA cross-appeals, claiming the district court should have  enjoined the use of other provisions  that Northwest added to  the Conditions  in 1995.  Because, in light of subsequent  events, the cross-appeal does  not present a live controversy,  we dismiss  ALPA's  claim without prejudice to its  raising the  same claim in the future.

I.  Background

5
The relationship between Northwest and ALPA is  governed by the Railway Labor Act (RLA), 45 U.S.C.  151 et  seq. Under RLA  2 First, 45 U.S.C.  152 First, the carrier  is  required to "exert every reasonable effort to make and  maintain agreements  concerning rates  of pay, rules, and  working conditions."  This  statutory obligation to bargain  with the union in good faith is  backed up by RLA  2  Seventh, 45 U.S.C.  152 Seventh, which provides  that "[n]o  carrier ... shall change the rates  of pay, rules, or working  conditions  of its  employees, as  a class  as  embodied in agreements  except in the manner prescribed in such agreements  or  in [ 6 of the RLA]."  In other words, if the carrier is  unable  to reach agreement with the union on changing a rate of pay,  rule, or working condition, then it must maintain the status   quo until it has  satisfied the multi-step process  of negotiation,  mediation, arbitration, and cooling-off required under RLA   6, 45 U.S.C.  156.  See Detroit & Toledo Shore Line R.R.  Co. v. United Transportation Union, 396 U.S. 142, 149 (1969)  (describing negotiation process  under  6 as  "almost interminable").  If at the end of that process  the parties  have not  reached an agreement, then the employer may unilaterally  implement its  proposal and the union may resort to economic  self-help to resist the change.


6
Matters  that are "directly related to 'rates  of pay, rules,  and working conditions'," and may therefore trigger the  obligations  of RLA  2 First and Seventh, are denominated  "mandatory subject[s] of collective bargaining," a phrase  courts  have borrowed from case law arising under the National Labor Relations  Act.  Japan Air Lines  Co. v. International Ass'n of Machinists, 538 F.2d 46, 52 (2d Cir. 1976).  If a  carrier and a union have a dispute over a proposed change to  a mandatory subject of bargaining, then the union can get an  injunction prohibiting the carrier from unilaterally implementing the change before completing the lengthy negotiation  process  set out in6.  On the other hand, if the dispute is   over a non-mandatory subject, then the carrier may unilaterally implement the change unless  limited by an existing  collective bargaining agreement (CBA).

A. Northwest's  Practice, 1966-97

7
ALPA has  represented the pilots  of Northwest Airlines  in  collective bargaining for nearly 60 years.  When a pilot first  begins  his  training with Northwest, he is  not represented by  ALPA or by any other union.  When the pilot completes  his   training and enters  into "revenue service" as  a probationary  employee, however, he immediately becomes  a member of the  bargaining unit represented by ALPA.


8
As  early as  1966 Northwest unilaterally began to require  that each trainee pilot agree to the Conditions  as  part of his   contract of employment.  The earliest known Conditions  included provisions  covering such matters  as  the trainee's  pay,  permission to use his  likeness  in promotions, and the assignment of rights  to anything he might invent.  Although trainees  are not represented by ALPA when they agree to the  Conditions, some of the Conditions  either expressly or implicitly continue to apply for as  long as  the signatory remains   employed as  a pilot with Northwest, that is, even after the  pilot becomes  a member of the bargaining unit represented  by ALPA.


9
Over the course of three decades  Northwest made numerous  changes  to the Conditions  without consulting ALPA.  In  1995 the airline added an Arbitration Clause requiring employees  to submit to binding arbitration all claims  against it  arising from the employment relationship.  Of particular  relevance to this  appeal, the Arbitration Clause specifically  requires  binding arbitration of statutory employment discrimination claims  brought under "the Minnesota Human Rights   Acts, Title VII of the Civil Rights  Act, the Age Discrimination  in Employment Act, the Americans  with Disabilities  Act, or  any other state or federal law prohibiting employment discrimination" (citations  omitted).  Also in 1995, Northwest  unilaterally introduced other new Conditions:  (1) setting the  pilot's  monthly salary during the probationary period, when  he has  completed his  training and is  represented by ALPA;(2) requiring the pilot to submit to a medical examination if  Northwest has  reason to believe he is  no longer able to  perform his  essential job functions;  (3) acknowledging that


10
Northwest may change various  working conditions  at its   option;  and (4) acknowledging that failure to comply with  company rules  is  a ground for termination.

B.ALPA's  Objection, 1997-Present

11
In 1997 Northwest notified ALPA that it was  terminating a  probationary pilot and attached to the notice a copy of the  Conditions  he had signed.  ALPA, which claims  that this  was   the first it had learned of the Conditions, demanded that  Northwest cease requiring trainee pilots  to agree to them and  that it inform each pilot who had signed Conditions  that they  were null and void.  When Northwest refused to do so, ALPA  filed suit in district court seeking injunctive and declaratory  relief on the ground that Northwest had violated the RLA by  unilaterally implementing the Conditions, which ALPA alleged are individual contracts  concerning mandatory subjects   of bargaining, without first negotiating with the Union as   required by the RLA.


12
While the suit was  pending before the district court, Northwest, in an attempt to respond to some of ALPA's  concerns   regarding the 1995 Conditions, deleted three and revised one  of the provisions  to which the Union objected.  In presenting  the new version (the 1997 Conditions) to ALPA, Robert  Brodin, Northwest's  vice president for labor relations, wrote:Northwest has  never interpreted or applied the Conditions  of Employment to operate in derogation of thecollective bargaining agreement between Northwest and ALPA.  Northwest and ALPA both agree that in theevent of overlap or inconsistency, the collective bargain-ing agreement controls.


13
As  to the Arbitration Clause in particular, however, Brodin  wrote that "Northwest continues  to believe that it has  the  right to insist on arbitration of non-contract claims  as  a  condition of employment for new hires."  The only significant  change Northwest made to the Arbitration Clause was  to  clarify that it does  not apply to claims  arising out of the CBA  between Northwest and ALPA.


14
Both ALPA and Northwest moved for summary judgment  on the validity of the Conditions.  The district court first  considered whether Northwest's  use of Conditions  originating  before 1995 violated the RLA.  The court held that ALPA, by  its  failure to object to the Conditions  for some 30 years, had  arguably consented to them, which if true would make use of  the Conditions  an implied term of the CBA between Northwest and ALPA.  Because that dispute related solely to the  meaning of the CBA, the court held it could be resolved only  by binding arbitration pursuant to RLA  2 Sixth and 3  First, 45 U.S.C.   152 Sixth and 153 First.


15
The court concluded that ALPA had objected in a timely  fashion, however, to the Arbitration Clause introduced in  1995, and therefore had not acquiesced in Northwest's  use of  that term.  The district court then held that the Arbitration  Clause deals  with a mandatory subject of bargaining.  Because the Arbitration Clause would have worked a change  with respect to a mandatory subject and ALPA had neither  agreed to nor acquiesced in that change, the court enjoined  Northwest from applying the Arbitration Clause to any pilot  represented by ALPA.


16
The district court did not address  the question whether  other clauses  ALPA claimed were newly included in the 1995  Conditions  also violated the RLA.  ALPA therefore moved to  amend the court's  order so as  to enjoin Northwest from  implementing those clauses  but the district court denied the  motion because of ALPA's  failure to comply with local court  rules.

II.  Analysis

17
ALPA does  not challenge the district court's  determination  that Northwest's  use of Conditions  originating before 1995  must be resolved through binding arbitration.  Therefore,  both Northwest's  appeal and ALPA's  cross-appeal concern  only the Union's  request for an injunction against Northwest's  use of particular provisions  that ALPA maintains  first  appeared in the 1995 Conditions.


18
A. Northwest's  Appeal:  The Arbitration Clause


19
Is  the arbitration of statutory discrimination claims  a mandatory subject of bargaining?  Northwest says  not and claims   the district court erred in enjoining its  use of the Arbitration  Clause, reasoning as  follows.  Under Alexander v. Gardner Denver Co., 415 U.S. 36 (1974), a union cannot waive the right  of the employees  it represents  to bring a statutory discrimination claim in a judicial forum.  Because ALPA cannot agree  to such a provision, it cannot be a mandatory subject of  bargaining.  Therefore, Northwest is  free to deal directly  with its  employees  over the arbitration of such claims.


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


21
In Gardner-Denver, the Supreme Court considered whether an employee who had pursued arbitration of a racial  discrimination claim under a CBA was  thereby precluded  from later asserting a Title VII claim based upon the same  facts.  415 U.S. at 46-55.  The Supreme Court held that  "there can be no prospective waiver of an employee's  rights  under Title VII."  Id. at 51.  Because Title VII provides  each  individual with the right to be free of invidious  discrimination,  "the rights  conferred can form no part of the collective bargaining process  since waiver of these rights  would defeat  the paramount congressional purpose behind Title VII."  Id.  Therefore, although the union could and did prospectively  waive the employee's right to sue upon (rather than arbitrate)  his claim of discrimination in violation of the CBA, the  employee's resort to arbitration of this claim did not preclude  him from suing upon his statutory claim of discrimination. See id. at 51-52.


22
The Supreme Court also rejected the suggestion that a  court should dismiss a Title VII claim if the facts underlying  it had already been the subject of arbitration under a CBA  that prohibited, and provided a remedy for, the discrimination.  According to the Court, arbitral processes were inferior  to judicial processes for protecting statutory rights, and the  Congress intended the federal courts to exercise final responsibility over Title VII claims.  See id. at 56-59.  The Court  was particularly concerned that a union, which ordinarily  controls the arbitration of an employee's claim, might, if  allowed, compromise the would-be Title VII plaintiff's statutory rights:  "In arbitration, as in the collective-bargaining  process, the interests of the individual employee may be  subordinated to the collective interests of all employees in the  bargaining unit."  Id. at 58 n.19.


23
In the early 1980s the Supreme Court twice applied the  reasoning of Gardner-Denver beyond the context of Title  VII.  In Barrentine v. Arkansas-Best Freight System, Inc.,  450 U.S. 728 (1981), employees had filed suit under the Fair  Labor Standards Act after having lost in arbitration on a  contractual claim arising from the same facts.  The employer  argued that the employees' union had waived their right to  bring the FLSA claim in court, noting that the CBA required  employees to arbitrate "any controversy" and that the employees had in fact pursued this matter to arbitration.  Id. at  736.  The Court rejected this argument:


24
[T]he FLSA rights petitioners seek to assert in this action are independent of the collective bargaining pro-cess.  They devolve on petitioners as individual workers, not as members of a collective organization.  They are not waivable.  Because Congress intended to give individual employees the right to bring their minimum-wage claims under the FLSA in court, and because these congressionally granted FLSA rights are best protected in a judicial rather than in an arbitral forum, we hold that petitioners' claim is not barred by the prior submission of their grievances to the contractual dispute-resolution procedures.


25
Id. at 745.  In McDonald v. City of West Branch, 466 U.S.  284 (1984), the Supreme Court rejected the employer's argument that an employee's  1983 claim should be dismissed  because he had already pursued to arbitration under the CBA  a claim based upon the same facts.  The Court premised its  holding upon two factors:  the inadequacy of arbitration for  the enforcement of individual statutory rights, and the intention of the Congress that1983 be judicially enforced.  See  id. at 289-90.


26
In light of the Court's broad pronouncement in GardnerDenver that "there can be no prospective waiver of an  employee's rights under Title VII," and the application of this  principle to other federal statutes in Barrentine and McDonald, many courts concluded that the reasoning of  Gardner-Denver applied to still other federal employment  statutes, see Brisentine v. Stone & Webster Engineering  Corp., 117 F.3d 519, 526 (11th Cir. 1997) (Americans with  Disabilities Act);  Cooper v. Asplundh Tree Expert Co., 836  F.2d 1544, 1553 (10th Cir. 1988) (Age Discrimination in  Employment Act (ADEA)), and held that Gardner-Denver  precluded prospective waiver of the right to sue even by the  individual employee, see Alford v. Dean Witter Reynolds,  Inc., 905 F.2d 104, 107 (5th Cir. 1990) (Title VII), vacated for  reconsideration, 500 U.S. 930 (1991), in light of Gilmer;Utley v. Goldman Sachs & Co., 883 F.2d 184, 187 (1st Cir.  1989) (Title VII);  Nicholson v. CPC Int'l Inc., 877 F.2d 221,  229 (3d Cir. 1989) (ADEA), disapproved in Gilmer, 500 U.S. 20, 24 n.1 (1991);  Swenson v. Management Recruiters Int'l,  Inc., 858 F.2d 1304, 1306 (8th Cir. 1988) (Title VII).


27
In 1991, however, the Court staked out a limit to the  principle announced in Gardner-Denver.  In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), the Court held  that a claim arising under the ADEA was validly made  subject to binding arbitration by an agreement between the  employer and the individual (non-union) employee--a result  in some tension with the broad pronouncement in GardnerDenver that "there can be no prospective waiver of an  employee's rights under Title VII."  415 U.S. at 51.  The  Court began by noting that under the Federal Arbitration  Act (FAA) an agreement to arbitrate individual statutory  rights is enforceable unless the Congress intended to preclude waiver of access to a judicial forum for vindication of  that right.  See id. at 26.  The text and legislative history of  the ADEA reflect no such intent, and the Court rejected the  argument that waiver should be precluded because arbitration is an inferior mechanism for resolving individual statutory claims--an argument to which the Court had given some  weight in Gardner-Denver, Barrentine, and McDonald, see  id. at 34 n.5.  The Court expressly distinguished those cases  as follows:


28
First, [they] did not involve the issue of the enforceability of an agreement to arbitrate statutory claims.  Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims.  Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized tore solve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions.  Second, because the arbitration in those cases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings.  An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. Finally, those cases were not decided under the FAA....  Therefore, those cases provide no basis for refusing to enforce Gilmer's agreement to arbitrate his ADEA claim.


29
Id. at 35.


30
Thus, Gilmer establishes that an individual employee may  himself validly agree in advance to binding arbitration of a  statutory claim he may later have against his employer.  See  Cole v. Burns Int'l Security Servs., 105 F.3d 1465, 1478 (D.C.  Cir. 1997) (citing Gilmer for the "general rule [that] statutory  claims are fully subject to binding arbitration, at least outside  of the context of collective bargaining").  The Court in Gilmer did not, however, address the continuing vitality of the  statement in Gardner-Denver that "the rights conferred [by  Title VII] can form no part of the collective bargaining  process."  415 U.S. at 51;  see also Wright v. Universal  Maritime Serv. Corp., 525 U.S. 70, 119 S. Ct. 391, 396 (1998)  (raising but not resolving the question "whether or not Gardner-Denver's seemingly absolute prohibition of union waiver  of employees' federal forum rights survives Gilmer").


31
ALPA suggests that Gilmer "effectively supersedes"  Gardner-Denver and permits a union to waive the employees'  right to a judicial forum for statutory claims.  The Fourth  Circuit and some district courts agree, see Austin v. OwensBrockway Glass Container, Inc., 78 F.3d 875, 885 (4th Cir.  1996);  see, e.g., Almonte v. Coca-Cola Bottling Co., 959  F. Supp. 569, 573-74 (D. Conn. 1997), prematurely we think.


32
Whatever the Supreme Court said--or, more precisely,  refrained from saying--in Wright, we do not understand the  Court in Gilmer to have overruled Gardner-Denver.  Rather,  the Court expressly distinguished that case, which strongly  implies that it remains the law within its field of application.We therefore leave to the Court itself the prerogative of  overruling its own precedent (if it will);  we apply the law as it  stands.  See Rodriguez de Quijas v. Shearson/American Express Inc., 490 U.S. 477, 484 (1989).


33
We see a clear rule of law emerging from Gardner-Denver  and Gilmer:  Unless the Congress has precluded his doing so,  an individual may prospectively waive his own statutory right  to a judicial forum, but his union may not prospectively waive  that right for him.  All of the circuits to have considered the meaning of Gardner-Denver after Gilmer, other than the  Fourth, are in accord with this view.  See Albertson's, Inc. v.  United Food & Com. Workers Union, 157 F.3d 758, 761-62  (9th Cir. 1998);  Penny v. United Parcel Service, 128 F.3d  408, 413-14 (6th Cir. 1997);  Brisentine v. Stone & Webster  Engineering Corp., 117 F.3d 519, 526 (11th Cir. 1997);  Pryner v. Tractor Supply Co., 109 F.3d 354, 365 (7th Cir. 1997);  cf.  Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1453 (10th Cir.  1997) (individual represented by union need not exhaust  remedies under CBA before filing statutory claim in court);Varner v. National Super Market, Inc., 94 F.3d 1209, 1213  (8th Cir. 1996) (same);  Tran v. Tran, 54 F.3d 115, 117-18 (2d  Cir. 1995) (same);  see also Cole v. Burns Int'l Security  Servs., 105 F.3d 1465, 1478-79 (D.C. Cir. 1997) ("It is plain  that the Supreme Court saw a critical distinction in the  situations raised by Gardner-Denver and Gilmer:  GardnerDenver involved arbitration in the context of collective bargaining ....  Gilmer, on the other hand, raised an individual  employee claim outside the collective bargaining context").


34
Thus, even after Gilmer, Gardner-Denver stands as a  firewall between individual statutory rights the Congress  intended can be bargained away by the union, see, e.g.,  Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 706-07 &  n.11 (1983) (union may waive officers' statutory right to be  free of discrimination, such as enhanced discipline, based  upon union activity), and those that remain exclusively within  the individual's control.  Absent congressional intent to the  contrary, a union may not use the employees' individual  statutory right to a judicial forum as a bargaining chip to be  exchanged for some benefit to the group;  the statutory right  "can form no part of the collective bargaining process."Gardner-Denver, 415 U.S. at 51.  Applying this rule to the  facts of the present case, ALPA could not lawfully agree to  the Arbitration Clause because it would effect a waiver of the  employees' right to a judicial forum for the vindication of  their statutory claims of discrimination in employment.


35
ALPA argues, however, that even if Gardner-Denver precludes it from waiving employees' right of access to a judicial  forum for a statutory claim, the arbitration of an  employment-related claim--whatever the legal basis for the  claim--remains a mandatory subject of bargaining.  The


36
district court agreed, holding that the Arbitration Clause is a  mandatory subject of bargaining "regardless of whether  [ALPA] can itself enter into arbitration agreements on behalf  of its members" because the Clause "governs rules or conditions of the pilots' employment with Northwest."  In effect,  the district court held that an employer has to bargain over a  proposal concerning rates of pay, rules, or working conditions  that the union is not authorized to accept and the employer  could not enforce.


37
We cannot agree.  The "essence of collective bargaining is  a notion of mutuality, that if a subject is brought up each side  has at least the authority both to offer and to concede."Brotherhood of Railroad Trainmen v. Akron & Barberton  Belt R.R. Co., 385 F.2d 581, 603 (D.C. Cir. 1967).  It follows  that a proposal to trade that which is not one's to give cannot  be a mandatory subject of bargaining.  See Brotherhood of  R.R. Trainmen, 385 F.2d at 603-04 (proposal to bargain over  effects of job terminations, normally a mandatory subject,  held non-mandatory because union "could not bargain away  any part of the rights that accrued to employees under the  [arbitral] Award");  Southern Pacific Co. v. Switchmen's Union, 356 F.2d 332, 334-35 (9th Cir. 1966) (proposal to redefine  certain work as within particular craft held non-mandatory  because railroad could not lawfully agree to it:  "These then  are not such disputes as can be resolved by capitulation of the  railroad and thus are not the proper subject [for bargaining  under RLA] section 6").  Because Gardner-Denver precludes  ALPA from agreeing to binding arbitration of individual  statutory claims, we conclude that the Arbitration Clause is  not a mandatory subject of bargaining.*


38
ALPA argues next that the district court properly enjoined  Northwest's implementation of the Arbitration Clause even if  the waiver of employees' right to a judicial forum for statutory claims is not a mandatory subject, because ALPA can still  lawfully bargain over the procedures to be used in arbitration. The Union claims these procedures are a mandatory subject  of bargaining because the remedy awarded to a successful  complainant in the arbitration of a discrimination claim could  affect the "rates of pay, rules, or working conditions" of all  employees, for example by restructuring their seniority  rights.


39
We fail to see how a remedy imposed by an arbitrator in a  proceeding involving only the employer and an individual  employee could have any adverse effect upon the working  conditions of the employees in the bargaining unit.  Although  an arbitral award could indeed subject the employer to an  obligation inconsistent with the CBA, that is not the Union's  problem but the employer's:  the employer simply cannot  make any unilateral change respecting a mandatory subject  of bargaining without first negotiating with the Union as  required under the RLA, and a private arbitration between  the employer and an individual employee does not alter this  rule of law.


40
In any event, as we read Gardner-Denver and Gilmer,  ALPA can have no role in negotiating obligatory procedural  rules for arbitration of individual statutory claims.  Read  together, those cases establish that only the individual can  determine in what forum he will vindicate his statutory rights,  and this choice should not be burdened by the majoritarian  concerns that motivate a union.  If a union has a mandatory  role in negotiating the terms that will apply to arbitration,  then it could also contrive to discourage the exercise of the  employee's right to choose a forum.


41
We conclude that the Arbitration Clause is not a mandatory  subject of bargaining under the RLA.  Therefore, Northwest  is not required by RLA  2, 45 U.S.C. 152, to negotiate with  ALPA over it.  Instead, Northwest may, as it did, propose  the Arbitration Clause directly to each individual employee.While it has long been clear that "members [of a bargaining  unit] cannot bargain individually on behalf of themselves as to  matters which are properly the subject of collective bargaining," Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192 (1944), it is just as well-established that an employee represented by a union may bargain directly with his employer  over a non-mandatory subject of collective bargaining as long  as the proposed individual contract "is not inconsistent with a  collective agreement" or somehow implicated in an unfair  labor practice, J.I. Case Co. v. NLRB, 321 U.S. 332, 339  (1944).


42
Here, the Arbitration Clause applies only to the statutory  rights of individuals and is not inconsistent with the CBA; nor is Northwest using its direct dealings with the employees  either to change anyone's obligations under the CBA or to  avoid dealing with the union on a mandatory subject of  bargaining.  Under these circumstances, the RLA is no bar  to Northwest's contracting individually with its employees.


43
B. ALPA's Cross-Appeal:  Other Clauses New in 1995


44
ALPA claims the district court erred in failing to enjoin  Northwest from unilaterally implementing provisions other  than the Arbitration Clause that the carrier added to the 1995  Conditions and that concern mandatory subjects of bargaining.  Northwest counters that ALPA's cross-appeal does not  present a ripe controversy in light of the airline's adoption of  the scaled-down 1997 Conditions and its subsequent representations concerning their application.  For the reasons stated  below, we agree with Northwest and dismiss ALPA's cross appeal for want of a ripe controversy.


45
In 1997 Northwest dropped three of the clauses in the 1995  Conditions about which ALPA now complains.  ALPA asserts  that its challenge to these three clauses remains ripe because  "Northwest has done nothing ... to alter or revoke the 1995  [Conditions] that have been signed by 1050 Northwest pilots,  and that still remain in effect."  At oral argument before this  court, however, Northwest deliberately and unequivocally  represented that the 1997 Conditions supersede any previous  Conditions, and that the three clauses deleted in 1997 will not  be enforced against persons who signed the 1995 (or prior)  Conditions.


46
Although we are aware that "voluntary cessation of allegedly illegal conduct does not ... make the case moot," a claim  for injunctive relief still requires "some cognizable danger of recurrent violation, something more than the mere possibility  which serves to keep the case alive." United States v. W.T.  Grant Co., 345 U.S. 629, 632-33 (1953);  see also Community  for Creative Non-Violence v. Hess, 745 F.2d 697, 700-01  (D.C. Cir. 1984).  ALPA's only response to this requirement  is to say that at some time in the future Northwest might not  honor its representation to the court.  That is insufficient to  render ALPA's requests for injunctive relief ripe at this time.If in the future Northwest were to enforce one of the clauses  against a signatory employee, or were to indicate its "firm  intention" to do so, Andrade v. Lauer, 729 F.2d 1475, 1481  (D.C. Cir. 1984), then the Union would have a ripe claim for  injunctive relief;  at present, however, "the parties have no  live dispute ... and whether one will arise in the future is  conjectural," Anderson v. Green, 513 U.S. 557, 559 (1995).


47
ALPA's only other concern is with the amended version of  the Rules of Conduct clause in the 1997 Conditions.  ALPA  objected to the Rules of Conduct clause in the 1995 Conditions because it stated that failure to comply with the company's rules and regulations "shall be grounds for [ ] termination," but termination is governed by the CBA.  In 1997,  therefore, Northwest amended the Rules of Conduct provision to provide that Northwest's authority to discipline an  employee represented by the Union is "subject to the grievance and arbitration provisions of the applicable [CBA]."This revision, coupled with Northwest's firm representation  that it will enforce the Rules of Conduct provision only to the  extent allowed by the 1997 Conditions, would seem to render  ALPA's claim for injunctive relief unripe.


48
At oral argument, however, ALPA suggested that the  revised Rules of Conduct clause still presents a ripe controversy insofar as it provides that "the Company, in its sole  discretion, may amend [its] rules, regulations, or policies from  time to time."  If Northwest ever "in its sole discretion"  changed a rule, regulation, or policy concerning a mandatory  subject of bargaining, then it would violate its obligation  under the RLA to negotiate such changes with the Union.  In  response to concern over this part of the Rules of Conduct  clause, Northwest represented to the court that, "as to mandatory subjects of bargaining, [Northwest] cannot and will  not make unilateral changes.  Because the union has a legitimate interest."  By this representation Northwest acknowledges that the phrase "in its sole discretion" is implicitly  qualified by the laws of the United States, just as if the  Condition said "provided, however, that Northwest may not  make a change concerning a mandatory subject of bargaining  without first negotiating with ALPA as required by the  RLA."


49
In light of Northwest's representation, we fail to discern  any present controversy over the Rules of Conduct clause. The parties agree that the clause does not affect Northwest's  obligations under the RLA to negotiate with ALPA.  Northwest has not invoked the clause to make any unilateral  change concerning a mandatory subject of bargaining, and it  unequivocally states that it will not do so in the future. ALPA's claim reduces to the fear that sometime in the future  Northwest may renege upon this representation to the court. That possibility is speculative at best, and in our view utterly  implausible.  But should it ever come to pass, then the doors  of the courthouse will be open wide to ALPA.

III.  Conclusion

50
Northwest did not violate the RLA by implementing the  Arbitration Clause without first negotiating with ALPA.  In  No. 98-7196, therefore, we vacate the injunction the district  court entered against Northwest.  In No. 98-7202, ALPA's  cross-appeal, we do not find a ripe case or controversy at this  time;  accordingly, we dismiss that case without prejudice to  ALPA's raising the same claim in the future.


51
It is so ordered.


52
BEFORE: Edwards, Chief Judge; Silberman, Williams, Ginsburg , Sentelle, Henderson, Randolph, Rogers, Tatel and Garland, Circuit Judges



Notes:


*
 Although Gardner-Denver suggests that the arbitration of individual statutory claims is an impermissible subject of bargaining,  we need not decide today whether it is an impermissible or a  permissible subject;  the only issue presented is whether it is a  mandatory subject.  See Brotherhood of Railroad Trainmen, 385  F.2d at 604 n.52.


ORDER
March 9, 2000
Per Curiam

53
Upon consideration of the petition for rehearing en banc of appellee/cross- appellant, the response thereto, and the vote by a majority of the judges of the court in regular active service in favor of the petition, it is


54
ORDERED that the petition be granted.  These cases will be reheard by the court sitting en banc on Wednesday, May 10, 2000 at 10 A.M.  The judgment filed herein on December 28, 1999 is hereby  vacated.  It is


55
FURTHER ORDERED that an order governing further proceedings shall issue separately.

