                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 INTERNATIONAL BROTHERHOOD OF                          No. 14-16465
 TEAMSTERS, AIRLINES DIVISION;
 AIRLINE PROFESSIONALS                                   D.C. No.
 ASSOCIATION OF THE IBT, LOCAL                        2:14-cv-00043-
 UNION NO. 1224,                                        APG-GWF
                Plaintiffs-Appellees,

                       v.                                OPINION

 ALLEGIANT AIR, LLC; ALLEGIANT
 TRAVEL COMPANY,
            Defendants-Appellants.

         Appeal from the United States District Court
                  for the District of Nevada
         Andrew P. Gordon, District Judge, Presiding

                    Argued and Submitted
         February 2, 2015—San Francisco, California

                            Filed June 8, 2015

  Before: Richard C. Tallman and Johnnie B. Rawlinson,
  Circuit Judges, and Stephen Joseph Murphy, III, District
                          Judge.*

                     Opinion by Judge Murphy

 *
   The Honorable Stephen Joseph Murphy, III, District Judge for the U.S.
District Court for the Eastern District of Michigan, sitting by designation.
2       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

                           SUMMARY**


                             Labor Law

    The panel vacated the district court’s preliminary
injunction in a union’s action against an airline under the
Railway Labor Act.

     The district court preliminarily enjoined the airline from
making policy changes to pilot work rules during the
negotiation of a new contract between the union and the
airline following the National Mediation Board’s certification
of the union as the pilots’ representative.

    The panel held that the district court had jurisdiction
because the case did not raise a representation dispute, and
there was no jurisdictional bar preventing the court, rather
than the Board, from determining whether a previous
advocacy group was a representative within the meaning of
the RLA. The panel concluded that it was not reviewing the
Board’s finding that the pilots were previously unrepresented.
In addition, the airline had waived the argument that the
Board’s finding was entitled to preclusive effect.

    The panel concluded that the Allegiant Air Pilots
Advocacy Group, which had negotiated and agreed to the
work rules prior to the union’s certification as the pilots’
representative, was not an RLA representative because it
sought neither Board certification nor voluntary recognition.
Accordingly, the pilot work rules were not a collective

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR             3

bargaining agreement under the RLA. The panel held that the
district court erred in entering an injunction because the RLA
does not require an airline to maintain the status quo during
negotiations of an initial labor agreement.


                        COUNSEL

Douglas W. Hall, Ford Harrison LLP, Washington D.C., for
Defendants-Appellants.

Edward M. Gleason Jr., Law Office of Edward Gleason,
PLLC, Washington, D.C.; Michael A. Urban and Nathan R.
Ring (argued), The Urban Law Firm, Las Vegas, Nevada;
James Petroff, Barkan Meizlish LLP, Columbus, Ohio, for
Plaintiffs-Appellees.


                         OPINION

MURPHY, District Judge:

                    I. INTRODUCTION

     Allegiant Air is an airline operating from Las Vegas,
Nevada. In 2004, Allegiant’s employees organized a pilot
advocacy group (the Allegiant Air Pilots Advocacy Group, or
“AAPAG”) and elected representatives to bargain with the
airline on their behalf. Over the next few years, AAPAG and
Allegiant negotiated and agreed to several different Pilot
Work Rules, detailed documents that outlined Allegiant’s
policies and work conditions. In 2012, some pilots decided
they wanted to unionize. The Teamsters expressed interest in
representing the pilots and petitioned the National Mediation
4      INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

Board (the Board) to certify them as the pilots’ bargaining
representative under the Railway Labor Act (RLA). The
Board conducted a secret ballot of the pilots and then certified
the Teamsters as the pilots’ RLA representative. Shortly
thereafter, Allegiant changed several policies contained in the
Work Rules without consulting the Teamsters.

    The Teamsters brought suit. They sought a preliminary
injunction that would prevent Allegiant from making any
policy changes to the Pilot Work Rules while they negotiated
a new contract. The Teamsters contend the AAPAG, its
predecessor negotiating on behalf of the pilots, was a
representative under the RLA. They argue that the Pilot Work
Rules were a collective bargaining agreement. And they
assert here that the district court properly enjoined Allegiant
from altering the agreement until the parties complete the
RLA mandated mediation process.

    Allegiant disagrees. It contends the district court did not
have jurisdiction to determine whether AAPAG was an RLA
representative when it executed the Work Rules. It argues that
even if the district court did have jurisdiction, AAPAG was
not an RLA representative, but merely an informal employee
advocacy group. It contends that the Work Rules are not a
collective bargaining agreement, the policy modifications are
at most differing interpretations of those Work Rules, and an
injunction is inappropriate because the Teamsters have not
demonstrated irreparable harm.

    The district court found that it had jurisdiction over the
dispute. It determined the AAPAG was an RLA
representative, reasoning that the employees had elected
AAPAG for the purpose of negotiating terms of employment
with the carrier. It therefore enjoined Allegiant from making
       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR             5

several policy changes until the parties had completed RLA
mandated mediation. And it ordered the parties to create a
Board of Adjustment to arbitrate the remaining issues.

    We have jurisdiction under 28 U.S.C. § 1292(a)(1). We
conclude that AAPAG was not an RLA representative. We
therefore vacate the injunction and remand the case.

                    II. BACKGROUND

    In 2004, Allegiant grew tired of having “50-odd pilots
constantly trumping through the office” with individual
complaints. To solve the problem, management approached
several senior pilots and asked them to form an organization
that could channel employee grievances and provide pilot
input. The senior pilots talked with their colleagues and a
short while later thirty-five pilots met at PT’s Pub in Las
Vegas to create AAPAG.

    Over the next few years, Allegiant grew rapidly, doubling
the number of pilots and expanding its flights to new
destinations. AAPAG grew with the company. The pilots
annually elected officers who helped interview applicants,
advocated for employees during grievance disputes, and
discussed pay and work conditions with Allegiant’s
management.

    AAPAG’s stated mission was to communicate pilot
concerns to management, and it described itself as a
“consulting agency on issues relating to the pilot group.” For
several years, pilots and management enjoyed a good
relationship. Allegiant allowed AAPAG to give Power Point
presentations to new hires. When pilots had pay or leave
problems, AAPAG officers advocated on the pilots’ behalf,
6       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

and Allegiant always resolved the issue in a way that “was
satisfactory for all involved.”

    AAPAG and Allegiant also negotiated Pilot Work Rules,
documents articulating company policies on leave, pay,
scheduling, and other issues that mattered to the parties. For
example, AAPAG negotiators and management agreed that
the pilots would get an additional five dollars per hour in
exchange for        less guaranteed flight time. Before
implementing the policy change, AAPAG conducted a secret
ballot of the pilots, who “overwhelmingly approved” the
change. During that period, Allegiant adhered to the Work
Rules; when a question arose about the meaning or
application of the Work Rules, Allegiant and AAPAG worked
together to find a solution, and Allegiant typically made the
aggrieved party whole.

    The parties negotiated the most recent Work Rules in
2010.1 The forty-nine page document was signed by both
AAPAG’s President and Allegiant’s Vice President of Flight
Operations. In the introduction, it states that “[t]he Flight
Operations Department of Allegiant Air will develop, refine,
and clarify changes to the Pilot Work Rules, Benefits and
Compensation in coordination with the Allegiant Air Pilot’s
Advocacy Group (AAPAG), the elected and representative
body of the pilot group of Allegiant Air.” It also states
Allegiant would “meet with AAPAG to consider revisions
and updates to the Work Rules” and that they would
“coordinate with AAPAG” to resolve questions about the
Work Rules application. Bold lettering at the bottom of the
page reads: “Nothing contained in these Work Rules should

   1
     One witness testified that the final Work Rules were actually
implemented in 2011, and that the 2010 date on the document is an error.
       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR                 7

be interpreted as giving rise to a contract or a promise of
employment for any period of time.”

    In 2012, many pilots wanted to unionize with the
Teamsters. AAPAG’s officers agreed and campaigned on the
Teamsters’ behalf. Some AAPAG officers joined the
Teamsters’ Organizing Committee. AAPAG’s president
provided the pilots with a brochure stating they were
operating “without a current contract,” that the pilots needed
more than “a legal version of our 40 page work rules,” and
outlined the benefits of Teamsters representation. During the
unionization campaign, AAPAG took the position that the
pilots did not have a legally binding contract with the
company. And when the Teamsters petitioned the Board to
certify it as the pilots’ RLA representative, it listed the pilots
as presently unrepresented. None of AAPAG’s officers
serving on the Teamsters’ Organizing Committee contested
that categorization.

    The Board held an election among the pilots, who voted
to unionize with the Teamsters. The Board then certified the
Teamsters as the pilots’ RLA bargaining representative. Two
weeks after the certification, the Teamsters notified Allegiant
that it intended to negotiate a new collective bargaining
agreement. The notice stated that the Teamsters expected
Allegiant not to unilaterally change any of the conditions in
the Work Rules while they negotiated a new contract. Shortly
thereafter, Allegiant changed its policies regarding pilots who
lose their medical certificate due to being sick or hurt,
eliminated pay protection for employees engaged in
collective bargaining, altered how many days new parents
could take off to spend with their children, and created a new
scheduling system. The Teamsters then filed suit, seeking to
8      INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

enjoin the changes while the parties negotiated a collective
bargaining agreement.

      III. OVERVIEW OF RAILWAY LABOR ACT

    Congress passed the RLA to expediently help railroads
and their employees resolve conflicts, before disagreements
turned into strikes that would paralyze interstate commerce.
See Int’l Bhd. of Teamsters v. N. Am. Airlines, 518 F.3d 1052,
1055–56 (9th Cir. 2008). In 1936, Congress amended the
RLA to include coverage of air carriers, 45 U.S.C. § 181, but
otherwise, the same structure of the Act remained.

    Under the Act, employees may designate a representative
to negotiate agreements concerning rates of pay, rules, and
working conditions. When a conflict arises “among a carrier’s
employees as to who are the representatives of such
employees,” the Board has the sole power to determine when
a group or person is a valid representative. Id. § 152, Ninth.
The Board is authorized “to take a secret ballot of the
employees,” and may take steps to “insure the choice of
representatives by the employees without interference,
influence, or coercion exercised by the carrier.” Id. After the
Board determines the employees’ preferred representative,
the Board certifies the representative, and “the carrier shall
treat with the representative so certified.” Id.

    Judicial review of representation disputes is extremely
circumscribed. Federal courts may not review the Board’s
certification decision or independently determine whether a
group represents employees. Switchmen’s Union of N. Am. v.
Nat’l Mediation Bd., 320 U.S. 297, 300 (1943). Furthermore,
the Board’s “decisions regarding its methods of investigation,
balloting procedures, and findings regarding employer
       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR              9

interference, influence, or coercion, have been largely
unreviewable.” Horizon Air Indus. Inc. v. Nat’l Mediation
Bd., 232 F.3d 1126, 1132 (9th Cir. 2000). Courts have limited
jurisdiction to ensure the Board acts constitutionally and
within the scope of its statutory authority. Id. Board factual
findings have preclusive effect under traditional principles of
estoppel. Astoria Fed. Sav. & Loan Ass’n v. Solimino,
501 U.S. 104, 107 (1991).

    Once a representative and a carrier have reached an
agreement concerning rates of pay, rules, and working
conditions, the Act prescribes specific steps parties must take
to change the agreement. A party that wants to change an
agreement must give advance written notice. 45 U.S.C. § 156.
Parties are required to meet in a good faith attempt to
voluntarily settle any disagreement. Id. § 152, Second. If
conferring fails, either party may request the services of the
Board to mediate a dispute. Id. § 155, First. And, if the
mediation fails, the parties may consent to binding
arbitration. Id. § 157. Finally, if mediation fails and the
parties reject arbitration, the RLA imposes a thirty-day
cooling off period. Id. § 155, First. Only then can a carrier
change an agreement and a labor organization lead its
employees out on strike. During the period of negotiation,
neither party may unilaterally change employee working
conditions. Id. § 156; see generally Int’l Bhd. of Teamsters,
518 F.3d at 1056 (citing Detroit & Toledo Shore Line R.R.
Co. v. United Transp. Union, 396 U.S. 142, 149 n.14 (1969)).

    A different process exists when parties contest the
meaning or proper application of a particular provision of an
agreement. In that case, the RLA requires employees and
carriers first to exhaust the grievance procedure specified in
a collective bargaining agreement. 45 U.S.C. § 184. Next, a
10     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

representative for an employee and a carrier must meet in
conference to try to settle the dispute. Id. § 152, Second. If
parties are unable to resolve a disagreement, the dispute is
subject to binding arbitration before a board of adjustment
established by the involved airline and labor representative.
Id. § 184; see Consol. Rail Corp. v. Ry. Labor Exec. Ass’n,
491 U.S. 299, 304 n.4 (1989).

       IV. JURISDICTION OF DISTRICT COURT

    We review de novo whether the district court had
jurisdiction. Horizon Air, 232 F.3d at 1128, 1131. District
courts have the power to enjoin a carrier from changing a
bargaining agreement while the parties complete the process
mandated by the RLA. Consol. Rail, 491 U.S. at 303.
Allegiant argues the district court lacked jurisdiction because
the case turns in part on whether AAPAG was an RLA
representative when it agreed to the Work Rules. According
to Allegiant, only the Board has the power to determine
whether a group is (or was) a representative under the Act.
We hold that while the Board has sole power to determine
labor’s current bargaining agent, there is no jurisdictional bar
preventing a district court from finding that a previous
advocacy group was a representative within the meaning of
the RLA.

    Allegiant also argues that during the Board’s
investigation, it found the pilots were previously
unrepresented. Because the Board made that finding during
the course of its investigation, Allegiant contends the Board’s
factual conclusion is unreviewable. We hold that when a
party is challenging an action taken by the Board—like its
certification of a labor representative or its efforts to prevent
employer interference with an election—district court review
       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR            11

is limited to ensuring that the Board acted constitutionally
and within the scope of its statutory authority. But when a
party brings a claim that does not challenge an action taken
by the Board, the district court has jurisdiction, even if the
claim denies the Board’s legal or factual conclusion. And the
district court should then review the Board’s findings under
principles of estoppel.

A. Representation Dispute

    The most important purpose of the RLA was “the
avoidance of industrial strife, by conference between the
authorized representatives of employer and employee.” Bhd.
of Ry. & S.S. Clerks v. Nat’l Mediation Bd., 380 U.S. 650,
658 (1965). An “explosive problem” in its application is how
to determine what labor organization represented employees.
Switchmen’s Union, 320 U.S. at 303. “[W]hether one
organization or another was the proper representative of a
particular group of employees was one of the most
controversial questions in connection with labor organization
matters.” Id. at 302 (internal quotation marks omitted).

    Section 152, Ninth, establishes “the machinery for the
selection of the representatives of employees.” Bhd. of Ry. &
S.S. Clerks, 380 U.S. at 658. It provides for a “neutral
tribunal” that can expediently determine employees’
bargaining representative and “get the matter settled.”
Switchmen’s Union, 320 U.S. at 303. That section provides in
relevant part:

       If any dispute shall arise among a carrier’s
       employees as to who are the representatives of
       such employees . . . it shall be the duty of the
       Mediation Board, upon request of either party
12     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

        to the dispute, to investigate such dispute and
        to certify to both parties . . . the name or
        names of the individuals or organizations that
        have been designated and authorized to
        represent the employees involved in the
        dispute, and certify the same to the carrier. . . .
        In such an investigation, the Mediation Board
        shall be authorized to take a secret ballot of
        the employees involved, or to utilize any other
        appropriate method of ascertaining the names
        of their duly designated and authorized
        representatives in such manner as shall insure
        the choice of representatives by the employees
        without interference, influence, or coercion
        exercised by the carrier.

45 U.S.C. § 152, Ninth. It further states that once the Board
has investigated the dispute and certified a representative,
“the carrier shall treat with the representative so certified.” Id.

    The Supreme Court has held that the Board has the sole
power to certify a group or person as an employee
representative. Switchmen’s Union, 320 U.S. at 300 (holding
federal courts do not have jurisdiction to review the Board’s
certification decision). Courts also lack jurisdiction to provide
relief that is the functional equivalent of an RLA certification
like, for instance, entering a declaratory judgment
determining what group can bargain on the employees’
behalf. Gen. Comm. of Adjustment v. Mo.-Kan.-Tex. R. Co.,
320 U.S. 323, 327 (1943) (holding that the district court
lacked jurisdiction to find “that the Engineers should be
declared to be the sole representative of the locomotive
engineers with the exclusive right to bargain for them”).
       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR              13

    Furthermore, courts decline to exercise jurisdiction when
parties bring an otherwise justiciable claim that requires the
court to examine whether a class of employees are
represented, and if so, by whom. See United Transp. Union
v. Gateway W. Ry. Co., 78 F.3d 1208, 1216 (7th Cir. 1996)
(holding court lacked jurisdiction to determine if parent
company’s union also represented subsidiary’s employees).

    Cases on which Allegiant relies similarly either require a
court to determine the employees’ current representative or to
compel a carrier to bargain in the face of competing
representation claims. See Int’l Bhd. of Teamsters v. Tex. Int’l
Airlines, 717 F.2d 157, 161 (5th Cir. 1983) (declining
jurisdiction to enforce a bargaining agreement that would
“inescapably entail[] the continuance of the Union’s role as
employee representative”); United Transp. Union v. United
States, 987 F.2d 784, 790 (D.C. Cir. 1993) (declining to
determine which of two unions was the employees’
bargaining representative).

    Neither party cites any case in which the court determined
the status of a past advocate rather than adjudicated a present
dispute about what party represents labor. Our research has
not revealed any such case. Resolving the issue as one of first
impression, we find the district court correctly exercised
jurisdiction. At the outset, we reiterate that federal courts
have jurisdiction to enjoin changes to the status quo while
parties complete mediation. The only issue is whether Section
152, Ninth, precludes that determination here.

    For several reasons, we do not think Section 152, Ninth,
is applicable. That section gives the Board jurisdiction when
“any dispute shall arise among a carrier’s employees as to
who are the representatives of such employees.” 45 U.S.C.
14     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

§ 152, Ninth. Simply put, there is no dispute among the
employees that the Teamsters are the pilots’ current
bargaining representative. Indeed, the Board has already
certified the Teamsters as the bargaining representative and
no party challenges that certification. AAPAG’s position at
the time it negotiated the Work Rules has no bearing on the
Teamsters’ current status.

    Furthermore, Section 152, Ninth, provides that once the
Board determines the bargaining representative, it must issue
a certification, and the carrier must “treat with the
representative so certified.” We are not issuing AAPAG a
certificate or its equivalent. And there is no reason for the
Board to issue a certificate to AAPAG on the basis of its past
advocacy. Our resolution of AAPAG’s status when it
negotiated the Work Rules will not require the carrier to treat
with AAPAG now, or ever. In short, no competing unions vie
for the right to bargain, and no employees seek to remain or
become unaffiliated. All agree the Teamsters are the
employees’ RLA representative, entitled to bargain with
Allegiant. Accordingly, this case does not raise a
representation dispute, and federal courts have jurisdiction to
resolve it.

B. The Board’s Factual Finding

    In 2012, the Teamsters petitioned the Board, seeking a
certification that it was the pilots’ bargaining representative.
During the Board’s investigation, it determined that no party
represented the pilots. The effect of the finding was that when
the pilots voted, they had the option of voting for the
Teamsters, of writing in other candidates, or to remain
unrepresented. See National Mediation Board, Representation
        INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR                   15

Manual § 13.201.2 If the Board had found that AAPAG
represented the pilots, the ballot also would have included the
option of voting for AAPAG, but that was not the case.
Allegiant contends we do not have jurisdiction to review the
Board’s finding that the pilots were unrepresented.

     Different rules apply when we directly review a Board
action and when an independent claim raises issues the Board
has already addressed. In the former situation, judicial review
is limited to ensuring the Board acted constitutionally and
within the scope of its statutory authority. Horizon Air Indus.,
232 F.3d at 1132. For example, if AAPAG had challenged the
Board’s certification of the Teamsters on the grounds that the
Board had wrongfully kept AAPAG off the ballot, then our
review would be limited to taking a “peek at the merits” to
ensure that AAPAG’s exclusion was constitutional and the
Board did not exceed its statutory authority. Id.

     But in the latter case, when a party brings a claim that
does not challenge a Board action but nonetheless raises an
issue the Board has already addressed, courts apply principles
of estoppel. Courts “have long favored application of the
common-law doctrines of collateral estoppel (as to issues)
and res judicata (as to claims) to those determinations of
administrative bodies that have attained finality.” Astoria
Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107
(1991). “When an administrative agency is acting in a judicial
capacity and resolves disputed issues of fact properly before
it which the parties have had an adequate opportunity to
litigate, the courts have not hesitated to apply res judicata to
enforce repose.” Id. (quoting United States v. Utah Constr. &

    2
      The representation manual is available on the Board’s website,
http://www.nmb.gov/documents/representation/representation-manual.pdf.
16     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

Mining Co., 384 U.S. 394, 422 (1966)). We have previously
found that Board determinations have preclusive effect when
made in proceedings that satisfy due process and when the
findings were supported by substantial evidence. Bldg.
Material & Constr. Teamsters Local No. 216 v. Granite Rock
Co., 851 F.2d 1190, 1195 (9th Cir. 1988).

    In the present case, we are not reviewing any
administrative action. No party has asked us to invalidate the
Board’s certification of the Teamsters as the pilots’
representative. Rather, the case presents claims independent
of the Board’s certification and involve the legality of
Allegiant’s changes to the Work Rules. And resolving
whether Allegiant’s policy changes were legal turns in part on
whether AAPAG was the pilots’ previous RLA
representative—a factual determination the Board has already
answered in the negative. The question, then, is whether the
Board’s finding is entitled to preclusive effect.

     Allegiant did not argue in its opening brief that the
Board’s determination should have preclusive effect. Rather,
Allegiant framed its argument as being solely about
jurisdiction. In its answering brief, the Teamsters asserted
that principles of collateral estoppel should not prevent the
Court from revisiting AAPAG’s representation status. And,
in its Reply, Allegiant acknowledges that it did not raise the
argument of collateral estoppel, but states “IBT’s contention
that collateral estoppel would not apply . . . has no merit.”
Allegiant cites no authority applying preclusion principles in
any analogous situation and, other than the quoted conclusory
statement, it does not address the issue of estoppel. We have
discretion to consider an issue raised in a reply brief where,
as here, an appellee raised an issue in its brief. United States
v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (per curiam). But
         INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR                       17

because Allegiant’s Reply does not cite relevant authority or
otherwise press the point, we find the argument waived.3

    For these reasons, we hold that the district court properly
asserted jurisdiction over the parties’ dispute.

        V. AAPAG’S REPRESENTATIVE STATUS

     The district court enjoined Allegiant from changing the
Work Rules. And the injunction turned in part on whether
AAPAG was an RLA representative. We review a district
court’s injunction for abuse of discretion. Flexible Lifeline
Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 994 (9th Cir.
2011). The threshold question of whether AAPAG was an
RLA representative is a question of law that we review de
novo. Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 881
(9th Cir. 2012). “When a district court makes an error of law,
it is an abuse of discretion.” Id.

    The RLA defines “representative” as “any person or
persons, labor union, organization, or corporation designated
either by a carrier or group of carriers or by its or their
employees, to act for it or them.” 45 U.S.C. § 151, Sixth. We


  3
     The Board required the Teamsters to identify whether there was an
incumbent representative at the time it requested that the Board investigate
the representation dispute. See National Mediation Board, Representation
Manual, § 1.02(3). At that time, the Teamsters took the position that
AAPAG was not an RLA representative. The position was to their
advantage because it kept AAPAG off the election ballot. In a footnote in
its Reply, Allegiant argues for the first time that the doctrine of judicial
estoppel prevents the Teamsters from taking inconsistent positions. Reply
Brief n.4, (citing Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d
597, 600 (9th Cir. 1996)). Because Allegiant raises that argument for the
first time in its Reply, we find the argument also waived.
18     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

hold that employees can “designate” an RLA representative
in two ways. Employees may petition the Board to certify a
labor representative. Id. § 152, Ninth. Or, a labor organization
can seek voluntary recognition, which requires a) it to
unequivocally demand RLA recognition from the carrier,
b) for the carrier to unequivocally grant recognition, and
c) for the labor organization to make a contemporaneous
showing that it enjoys majority support amongst the relevant
workforce. See N.L.R.B. v. Triple C Maint., Inc., 219 F.3d
1147, 1153 (10th Cir. 2000) (describing voluntary recognition
under the National Labor Relations Act). Because AAPAG
sought neither Board certification nor voluntary recognition,
we find it was not an RLA representative.

A. The Need For Certainty

    Employees, employers, and federal courts need
certainty—prior to the advent of litigation—on whether an
advocacy group is an RLA representative. For example, a
court’s ability to enjoin a labor strike could turn on whether
employees have designated a representative. Hypothetically,
if AAPAG was not an RLA representative then the Norris-
LaGuardia Act might prevent a court from enjoining an
AAPAG-led strike. See Aircraft Serv. Int’l, Inc. v. Int’l Bhd.
of Teamsters, 779 F.3d 1069, 1080S81 (9th Cir. 2015) (en
banc) (Berzon, J., concurring). If, however, AAPAG was a
representative, then the pilots would need to use the RLA
dispute resolution mechanisms prior to engaging in economic
coercion. See Bhd. of R.R. Trainmen v. Chi. River & Ind.
R.R., 353 U.S. 30, 42 (1957) (finding courts can enjoin union
strike while parties undergo mandatory arbitration).
Resolution of the dispute would turn on whether AAPAG was
the current bargaining representative, and that question is
       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR                19

within the sole jurisdiction of the Board. See supra Section IV.A.

    In a similar hypothetical, if an employee had filed suit
disputing Allegiant’s application of the Work Rules, the law
and forum would turn on whether AAPAG was an RLA
representative. If AAPAG was not a representative, and the
Work Rules were therefore not a collective bargaining
agreement, the employee’s remedy, if any, would be under
state contract law. See Sw. Gas Corp. v. Vargas, 111 Nev.
1064, 1072 (1995) (explaining that employee handbooks can
create an employment contract, even if the handbook includes
a disclaimer). But if AAPAG was an RLA representative, the
employee would have to use the Act’s arbitration procedures.
45 U.S.C. § 184. The forum, the law, and the remedy all turn
on the status of the labor advocate, a status courts typically do
not have jurisdiction to determine.

    Furthermore, many airlines establish employee advocacy
groups as a way to facilitate employee input. The Board has
repeatedly stated that employee committees are lawful under
the RLA, unless the carrier uses the group to interfere with a
Board election. Delta Airlines, 30 N.M.B. 102, 122 (2002);
Am. Airlines, 26 N.M.B. 412, 453 (1999). Carriers often pay
the advocacy group leaders for time spent advocating, as well
as help set up elections, fund group programs, and provide
management classes for group officers. See, e.g., Delta
Airlines, 30 N.M.B. at 122–26. While carriers are free to
organize channels of communication between pilots and
management, those actions become illegal if the advocacy
group unwittingly changes into an RLA representative.
45 U.S.C. § 152, Fourth. Those potentially negative legal
consequences require employees to put the carrier on notice
of a group’s representative status.
20     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

    Being an RLA representative also imposes legal
obligations on the labor organization. Aside from the explicit
obligations the Act lays out in Section 152, RLA
representatives also have a duty of fair representation,
Landers v. Nat’l R.R. Passengers Corp., 485 U.S. 652, 658
(1988) (citing Steele v. Louisville & Nashville R.R. Co.,
323 U.S. 192, 204 (1944)). And representatives have a
statutory duty to file reports with the Department of Labor,
29 U.S.C. §§ 402(j)(2), 431.

    It is important that employees act purposefully when
choosing an RLA representative. When employees designate
a representative, it affects the applicability of the RLA and
the authority of federal courts to interfere on behalf of both
employees and employers. The choice also imposes duties on
both parties. This need for clarity compels us to hold that an
entity becomes an RLA representative only when certified by
the Board or voluntarily recognized by the employer.

B. Designating A Representative

    The simplest way for employees to designate an RLA
representative is to petition the Board to certify a labor
representative. The carrier then “shall treat with the
representative so certified.” 45 U.S.C. § 152, Ninth. Unless a
labor representative “formally seeks and obtains certification
as the employees’ chosen representative, the employer’s duty
to ‘treat’ with, i.e. recognize, the representative, is not
triggered.” Aircraft Serv. Int’l, 779 F.3d at 1083 (en banc)
(Berzon, J., concurring) (citing Summit Airlines, Inc. v.
Teamsters Local Union No. 295, 628 F.2d 787, 793–95 (2d
Cir. 1980)). When employees vote on a representative, but the
carrier refuses to negotiate, the representative labor group
must seek Board certification. See Summit Airlines, 628 F.2d
       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR            21

at 795. And, finally, employees may appoint a representative
and a carrier may voluntarily choose to negotiate with them.

    “Voluntary recognition” is the standard practice under
federal labor laws. The Board’s handbook provides that a
group which has petitioned the Board for a certification may
withdraw an application if the group wishes to seek voluntary
recognition. See National Mediation Board, Representation
Manual § 6.0. Similarly, various courts have found that
carriers may voluntarily recognize an RLA representative.
See Summit Airlines, 628 F.3d at 795; Burlington N., Inc. v.
Am. Ry. Supervisors Ass’n, 503 F.2d 58, 63 (7th Cir. 1974).

    Moreover, courts interpreting a comparable section of the
National Labor Relations Act (NLRA) have found that
employees can “designate” a labor representative under
29 U.S.C. § 159(a) by either acquiring a National Labor
Relations Board certification or through voluntary
recognition. Triple C Maint., Inc., 219 F.3d at 1153; Sheet
Metal Workers’ Int’l Ass’n Local 19 v. Herre Bros. Inc.,
201 F.3d 231, 241 (3d Cir. 1999); Am. Automatic Sprinkler
Sys. Inc. v. N.L.R.B., 163 F.3d 209, 219 (4th Cir. 1998);
N.L.R.B. v. Goodless Elec. Co. Inc., 124 F.3d 322, 324 (1st
Cir. 1997). While courts hesitate to import NLRA standards
into the RLA due to differences in the statutory schemes, see
Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S.
369, 383 (1969), a clear voluntary recognition rule serves the
same salutary purposes under both statutes. It ensures that
both parties are on notice of the legal import of their
agreements, and thereby promotes stable labor relations. It
prevents the need for courts to engage in post hoc
determinations of a labor organization’s legal status. And, by
requiring contemporaneous evidence that an organization
enjoys majority support among the relevant workforce, it
22     INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

protects the right of a majority of employees to choose their
labor representative.

C. Application

    In the present case, AAPAG was not an RLA
representative. The parties agree the Board never certified
AAPAG under Section 152, Ninth. There is no evidence that
AAPAG demanded Allegiant recognize it as the pilots’ RLA
bargaining agent. To the contrary, evidence showed that
AAPAG’s status did not come up in pilots’ discussions
among themselves or with Allegiant. AAPAG did not
mention the Railway Labor Act in presentations to new pilots.
AAPAG’s Constitution and by-laws are silent about its status
under the Act. AAPAG’s officers testified that they were
unfamiliar with the RLA and that they never sought outside
legal advice about the status of the group or the enforceability
of the Work Rules. The officers never discussed whether they
could appeal grievances beyond upper management, or
whether they could lead the pilots out on strike. The officers
never satisfied statutory filing requirements with the
Department of Labor. Materials written by AAPAG’s
president state that the group was operating “without a
current contract” and that the pilots needed more than “a legal
version of our 40 page work rules.” And the Teamsters, who
worked in concert with a pilot organizing committee that
included AAPAG officers, took the position during the Board
election process that AAPAG was not an RLA representative.
AAPAG’s officers, who were working with the Teamsters,
did not contest their categorization.

    There is no evidence below (much less an unequivocal
demand for recognition) that AAPAG officers ever told
Allegiant they were bargaining as an RLA representative
       INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR               23

instead of as a non-RLA employee committee. Both
AAPAG’s officers and Allegiant’s management agreed that
AAPAG never presented itself as an RLA bargaining agent.
Allegiant’s filings with the SEC describe AAPAG as an “in-
house association” and the Work Rules as a “mutually
acceptable arrangement.” That description is in stark contrast
to Allegiant’s statements that the flight attendants had “voted
for representation” and were negotiating “a labor agreement.”
Finally, while the Work Rules state that Allegiant would
change the Work Rules “in coordination with the Allegiant
Air Pilot’s Advocacy Group (AAPAG), the elected and
representative body of the pilot group of Allegiant Air,”
nothing in the Work Rules mentioned the RLA or constitutes
Allegiant’s unequivocal recognition of AAPAG’s RLA
status.

    If a labor organization wants to be an RLA representative,
it must demand recognition from a carrier; if the carrier will
not give it, the group must seek Board certification. Because
AAPAG did neither, it was not an RLA representative.

    Because AAPAG was not an RLA representative, the
Work Rules were not a collective bargaining agreement
within the meaning of the RLA.4 Thus, when the Teamsters
and Allegiant met to draft a collective bargaining agreement,
there was no agreement in place. We have previously found
the RLA does not require a carrier to maintain the status quo
during negotiations of an initial labor agreement. Int’l Bhd. of
Teamsters v. N. Am. Airlines, 518 F.3d 1052, 1057–58 (9th
Cir. 2008). The RLA therefore did not prevent Allegiant from



  4
    The Work Rules may have created an employment contract under
Nevada state law, but that question is not subject to our review.
24      INT’L BHD. OF TEAMSTERS V. ALLEGIANT AIR

changing the Work Rules, and the district court erred in
entering an injunction.

                     VI. CONCLUSION

    Accordingly, the district court’s injunction is VACATED
and the case is REMANDED to permit the Teamsters and
Allegiant to continue negotiating a collective bargaining
agreement in conformity with the RLA and under the Board’s
guidance.

     Each party shall bear its own costs on appeal.
