UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Air Line Pilots Association,

International

v. Civil No. 04-cv-331-JD

Opinion No. 2005 DNH 106

Guilford Transportation

Industries, Inc. et al.

O R D E R

On October 13, 2004, this court adopted the magistrate’s

report and recommendation for the entry of a Railway Labor Act 

injunction against the defendants, Guilford Transportation

Industries, Inc., Pan American Airways Corp., and, Boston-Maine

Airways Corp. Following an evidentiary hearing on September 9

and 10, 2004, the magistrate concluded that the defendants had

created a “major dispute” within the meaning of the Act and also

violated section 152, Third and Fourth, through what the

magistrate had characterized as the “transfer” of 727 operations

from their unionized airline, Pan Am, to its non-unionized

affiliate, Boston-Maine. 360 F. Supp. 2d 248 (D.N.H. 2004).

On appeal, however, the circuit determined that this court

“did not apply the correct legal standards” in reaching these

conclusions. 399 F.3d 89, 92 (1st Cir. 2005). The right

standard, the circuit held, was “whether the employer itself went

out of business so that its union work could be transferred to

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its ununionized [sic] affiliate.” Id. at 102. The circuit

therefore remanded the case here “for further proceedings

consistent with [its] opinion.” Id. at 92. Before taking up the

case on remand, the court asked the parties for their views on

what the “further proceedings” should encompass. Accordingly,

following the circuit’s issuance of its mandate on the judgment

on April 18, 2005, and the lapse of ten days without any

suggestion from the parties as to what should happen next, this

court issued an order directing the plaintiff to “show cause by

May 10, 2005, why this case should not be closed.”

The plaintiff, Air Line Pilots Association, International

(“ALPA”), responded by announcing its intention “to avail itself

of the opportunity to demonstrate that Defendants chose to shut

down Pan Am ‘so that its union work could be transferred to its

ununionized affiliate.’” Resp. to Show Cause Order ¶ 3 (quoting

399 F.3d at 102)). ALPA wishes to pursue discovery, not only on

“the disputed issues to be determined on remand” but also “on all

issues in light of the First Circuit’s remand ruling.” Id. ¶¶ 6-

7. Together with its response, ALPA has moved for a conference

with the court to structure this discovery.

The defendants, however, argue that the circuit’s decision

limits the inquiry on remand to events that have occurred

subsequent to the evidentiary hearing before the magistrate and

that discovery on any other subject is therefore inappropriate. 

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Indeed, the defendants contend that because “ALPA has not

identified any facts, circumstances, or issues related to its

claim that have arisen since the [hearing] . . . there is nothing

left for the Court to do following remand except to issue a

revised judgment and a new closing order.” Mem. Close Case at 1.

As an initial matter, the court notes that the defendants

appear to have misconstrued its order requiring ALPA to show

cause why the case should not be closed. The purpose of the

order was to determine (1) whether ALPA wished to resume its

prosecution of the case on remand at all and (2) if so, how the

parties envisioned the case would proceed based on the decision

of the court of appeals. The order was not intended to require

ALPA to make any evidentiary showing, as the defendants suggest,

nor would such a requirement be appropriate at this point.

The court also disagrees with the defendants’ interpretation

of the circuit opinion to cabin the inquiry on remand to events

that have transpired since the hearing. The defendants arrive at

this reading by dismembering the passage that closes the

circuit’s analysis of ALPA’s claim for relief under the RLA, Mem.

Close Case at 2-3, which states in full that:

The upshot is that district court erred by misconceiving the proper inquiry and thus erred in its

determination that ALPA was likely to succeed on the

merits of its claims . . . . [T]his error requires

that we vacate the district court’s decree. We do so,

however, without prejudice to further proceedings in

that court. Although it seems doubtful that the union

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1In addition, such an assessment could not be said to be

“without prejudice” to further proceedings in this court.

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can succeed on the record as it now stands, further

developments have occurred (e.g., Pan Am’s actual

closing) and we think it just that the union be given

the opportunity, should it choose, to adduce additional

evidence and attempt to make out a winning case.

399 F.3d at 105. Had the circuit concluded that events which

preceded the evidentiary hearing could not support ALPA’s claim

as a matter of law, it would likely have used language to that

effect. But the circuit did not go nearly that far. Instead, it

expressed “doubt” that the existing record of those events, i.e.,

the facts adduced at the evidentiary hearing, could satisfy the

standard for relief under the RLA as illuminated in the opinion. 

The court of appeals did not purport to assess events that

occurred before the hearing but were not, for whatever reason,

the subject of the evidence received there; indeed, any such

assessment would necessarily have been highly speculative.1

Thus, although events that have occurred since the hearing

(of which “Pan Am’s actual closing” constitutes but one example)

may also inform the inquiry on remand, this court does not read

the circuit opinion as limiting the inquiry to such events. As

the court of appeals expressly stated elsewhere in the opinion,

ALPA “should be entitled to attempt to demonstrate, on remand,

that Pan Am was shut down only because it was possible to

transfer its union-flown routes to a non-union affiliate–-and, if

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2The court dismissed ALPA’s non-RLA claims in its order of

October 20, 2004, and denied ALPA’s motion for reconsideration of

that order on December 6, 2004. ALPA did not appeal either of

these decisions.

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so, that a major dispute was thereby created.” 399 F.3d at 103. 

While the circuit has given ALPA “long shot” odds in such a

contest, id., it has stopped short of declaring the defendants

the outright winners. This court must therefore resume

proceedings in this matter, “properly focused . . . on whether

[Pan Am] itself went out of business so that its union work could

be transferred to [Boston-Maine].” Id. at 102.

Given this focus, ALPA will not be entitled to engage in

discovery “on all issues,” as it proposes in its response to the

court’s show cause order. Indeed, ALPA’s submissions offer no

clue as to what other “issues” there are.2 Discovery and all

further proceedings in this case shall be directed toward ALPA’s

claim that “Pan Am was shut down only because it was possible to

transfer its union-flown routes to a non-union affiliate–-and, if

so, that a major dispute was thereby created.” 399 F.3d at 103. 

But discovery and further proceedings shall not be limited to

events that have occurred since the evidentiary hearing in the

manner the defendants suggest.

The defendants’ arguments that ALPA has foregone its rights

to any discovery by objecting to the defendants’ request for a

continuance of the evidentiary hearing for that purpose, or by

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failing to object to the court’s order transforming the

injunction into a final judgment, are also without merit. ALPA

believed, and both the magistrate and this court agreed, that it

had demonstrated its entitlement to an RLA injunction based on

the facts adduced at the evidentiary hearing in September. As

the court concluded in entering final judgment, there was no

reason for further proceedings at that point. Indeed, the

defendants themselves apparently agreed with that conclusion, as

they declined the court’s invitation to show cause why final

judgment should not enter. Now that the circuit has clarified

the standard for injunctive relief under the RLA, the court

believes that discovery is an appropriate means for the parties

to marshal facts going to whether that standard has been met. 

Accordingly, the parties shall confer in the manner provided by

Fed. R. Civ. P. 26(f) as soon as possible to formulate a proposed

scheduling order in this matter. The order shall be submitted to

the court by July 18, 2005.

Finally, following the parties’ submissions in response to

the order to show cause why the case should not be closed, the

court ordered ALPA to submit a reply brief describing any relief

still available to it under the RLA and gave the defendants the

opportunity to file a sur-reply. Having reviewed the parties’

submissions on this point, the court believes that any decision

on the continued availability of RLA relief would be premature at

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this time. However, the court expects the parties to address

this issue comprehensively in further submissions and at any

future evidentiary hearing otherwise dealing with the merits of

ALPA’s claim for relief in this matter.

Conclusion

 For the foregoing reasons, the defendants’ request to

close the case is denied. ALPA’s motion for a structuring

conference (contained in document no. 111) is also denied. 

Discovery and all further proceedings in this matter shall be

directed toward ALPA’s claim that Pan Am was shut down only

because it was possible to transfer its union-flown routes to a

non-union affiliate–-and, if so, that a major dispute was thereby

created within the meaning of the RLA. The parties shall confer

to formulate a proposed scheduling order as soon as possible and

shall submit the proposed order to the court by July 18, 2005.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

July 8, 2005

cc: R. Matthew Cairns, Esquire

Julie P. Glass, Esquire

Eric L. Hirschhorn, Esquire

Marie M. McPartlin, Esquire

Marcus C. Migliore, Esquire

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William G. Miossi, Esquire

Joseph E. Schuler, Esquire

Andrew W. Serell, Esquire

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