One of the challenging legal questions generated by the post-9/11 airline bankruptcies is whether airline workers may strike immediately upon a carrier's rejection of its collective bargaining agreement. On March 29, 2007, the Second Circuit Court of Appeals issued the first appellate decision on this issue, concluding that the Railway Labor Act prohibits a union from striking immediately when a carrier, with bankruptcy court approval, rejects its collective bargaining agreement and implements revised terms and conditions of employment. The court also ruled that the Norris-LaGuardia Act does not prohibit the issuance of an injunction where the carrier remained willing to continue negotiations toward a new agreement, under the auspices of the National Mediation Board. Northwest Airlines Corp. v. Ass'n of Flight Attendants, Nos. 06-4371 and 06-4468 (2d Cir. Mar. 29, 2007). 

The majority opinion concluded that the RLA prohibited self-help because the Section 2 (First) duty to make and maintain agreements remains intact, despite the carrier's rejection of the collective bargaining agreement. The majority concluded that the carrier's rejection of its collective bargaining agreement, with court approval, represented an abrogation of the agreement, but not a breach of the agreement. The majority further concluded that, when the carrier abrogated the agreement, that action terminated the "status quo," which ordinarily would have prohibited the carrier from making unilateral changes to agreements concerning rates of pay, rules and working conditions. Finally, the majority concluded that an immediate strike would violate the duty to exert every reasonable effort to make an agreement and thus may be enjoined. The majority also rejected the union's "clean hands" argument, emphasizing that the carrier imposed new terms and conditions with court approval. Underscoring the difficulty of this issue, the Second Circuit affirmed the issuance of an injunction on grounds somewhat different from those relied upon by the district court, and the chief judge of the circuit wrote a concurring opinion that disagreed with the majority's conclusion that the status quo obligation terminated upon abrogation of the agreement. 

This area of the law continues to evolve. However, the Second Circuit's unanimous conclusion that the strike was properly enjoined demonstrates the important public interest in continuous transportation service and the enforcement of the RLA's peaceful dispute resolution procedures.