Committee of Concerned Midwest Flight Attendants for Fair v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS AIRLINE DIVISION and TEAMSTERS LOCAL 135

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1921
COMMITTEE OF CONCERNED
MIDWEST FLIGHT ATTENDANTS
FOR FAIR AND EQUITABLE
SENIORITY INTEGRATION, et al.,
Plaintiffs-Appellants,
v.
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS AIRLINE DIVISION and
TEAMSTERS LOCAL 135,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-C-379—Rudolph T. Randa, Judge.
ARGUED SEPTEMBER 30, 2011—DECIDED NOVEMBER 30, 2011
Before EASTERBROOK, Chief Judge, and POSNER and
WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge. The McCaskill–Bond Amend-
ment to the Federal Aviation Act, 49 U.S.C. §42112 note,

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2 No. 11-1921
provides that a transaction “for the combination of
multiple air carriers into a single air carrier” requires
the combined business to merge the seniority lists of
the two carriers’ employees. Republic Airways Holding
acquired Midwest Airlines in July 2009 by purchasing
its parent, Midwest Air Group. The seniority lists for
mechanics, baggage handlers, and administrative per-
sonnel have been integrated under the Amendment. But
Republic furloughed the flight attendants, requiring
them to apply for “new” jobs; if they are rehired, the
Teamsters Union, which represents the flight atten-
dants at Republic’s older carriers (Republic Airlines,
Chautauqua Airlines, and Shuttle America), places them
at the bottom of its seniority roster. (Pilots, too, were
furloughed, but their status is not at issue here.) The
Teamsters Union has refused to budge from this posi-
tion, which it has maintained even after the National
Mediation Board concluded that the flight attendants
who worked for Midwest became part of a single bar-
gaining unit at an integrated air transportation business
that comprised Republic, Chautauqua, Shuttle America,
and Midwest. In re Chautauqua Airlines / Shuttle America /
Republic Airlines / Midwest Airlines / Frontier Airlines / Lynx
Aviation, 37 N.M.B. 148 (2010). Three of Midwest’s
flight attendants, and a committee purporting to speak
for all of them, filed this suit.
When Republic Airways Holding acquired it, Midwest
was losing money and needed to surrender most of its
planes, which had been leased. Midwest had only nine
planes on the date of the merger. Within a few months,
Republic returned them to Boeing and abandoned the

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No. 11-1921 3
certificate from federal regulators that entitled Midwest
to engage in the air transportation business. Republic
retained and used Midwest’s gates, takeoff and landing
slots, trademarks, code (YX), and other assets. Republic
(operating with Midwest’s name and marks) provided
service to most of the city pairs that Midwest had
flown; only the type of aircraft changed. (Midwest
used Boeing 717 planes; Republic uses Embraer
190s.) Frontier Airlines, another subsidiary of Republic
Airways Holding, has taken over the routes that
Republic Airlines operated in Midwest’s name from mid-
2009 through mid-2011, and Midwest’s trademarks have
been retired; no one contends that these developments
affect how seniority issues should have been handled
earlier. (Eventually we may need to consider questions
about what rights Midwest’s former employees have
in Frontier’s seniority system, which is separate from
Republic’s. See Teamsters Union, Airline Division v.
Frontier Airlines, Inc., 708 F. Supp. 2d 750 (E.D. Wis. 2010);
In re Chautauqua Airlines, 37 N.M.B. at 167.)
The district court held that Republic’s abandonment of
Midwest’s certificate, and the return of its planes, meant
that Republic had acquired some assets related to air
transportation but not an “air carrier” for the purpose
of the McCaskill–Bond Amendment. Although the court
initially denied the Teamsters’ motion for summary
judgment, 742 F. Supp. 2d 1035 (E.D. Wis. 2010), it granted
a motion for reconsideration and ruled in the Union’s
favor. 2011 U.S. Dist. LEXIS 2718 (E.D. Wis. Jan. 10, 2011).
The court stated that “McCaskill–Bond was never meant
to protect the employees of an air carrier that simply
goes out of business.” Id. at *9.

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4 No. 11-1921
Legislatures do not mean things in the abstract; as
Justice Holmes once put it, the right question is what
they meant by what they said. “[A statute] does not
disclose one meaning conclusively according to the laws
of language. Thereupon we ask, not what this man
meant, but what those words would mean in the mouth
of a normal speaker of English, using them in the circum-
stances in which they were used . . . . But the normal
speaker of English is merely a special variety, a literary
form, so to speak, of our old friend the prudent man. He
is external to the particular writer, and a reference to
him as a criterion is simply another instance of the
externality of the law. . . . We do not inquire what the
legislature meant; we ask only what the statute means.”
Oliver Wendell Holmes, Jr., The Theory of Legal Interpreta-
tion, 12 Harv. L. Rev. 417, 417–19 (1899), reprinted in
his Collected Legal Papers 204, 207 (1920). What
the McCaskill–Bond Amendment means is not hard to
discern.
Here is all of the statutory text that matters:
(a) With respect to any covered transaction in-
volving two or more covered air carriers that
results in the combination of crafts or classes that
are subject to the Railway Labor Act (45 U.S.C. 151
et seq.), sections 3 and 13 of the labor protec-
tive provisions imposed by the Civil Aeronautics
Board in the Allegheny-Mohawk merger (as pub-
lished at 59 C.A.B. 45) shall apply to the integra-
tion of covered employees of the covered air
carriers; [two exceptions are omitted as irrelevant]
(b) In this section, the following definitions apply:

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No. 11-1921 5
(1) The term “air carrier” means an air carrier
that holds a certificate issued under chapter
411 of title 49, United States Code.
(2) The term “covered air carrier” means an air
carrier that is involved in a covered transac-
tion. . . .
(4) The term “covered transaction” means—
(A) a transaction for the combination of
multiple air carriers into a single air car-
rier; and which
(B) involves the transfer of ownership or
control of—
(i) 50 percent or more of the equity
securities (as defined in section 101 of
title 11, United States Code) of an air
carrier; or
(ii) 50 percent or more (by value) of the
assets of the air carrier.
Subsection (a) provides the basic rule: merging the sen-
iority lists, rather than putting employees of the ac-
quired carrier at the bottom of the acquiring carrier’s
list, was a condition of the Allegheny–Mohawk merger
and therefore is required in every covered transaction
“involving” covered air carriers. An “air carrier” is any
firm that holds a certificate issued under 49 U.S.C. §411.
Midwest held such a certificate on the date the merger
closed and therefore was an “air carrier.” It also was
“involved in” a transaction. True, Midwest Airlines was

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6 No. 11-1921
a subsidiary in a holding company structure. Republic
Airlines’ parent company acquired Midwest’s parent. Yet
subsidiaries are “involved in” such a transaction; the
McCaskill–Bond Amendment does not require that
the operating company be acquired, only that it be “in-
volved.” (Otherwise the statute could be evaded with
ease, because it is easy to create a parent for any corpora-
tion.)
Thus the question becomes whether Midwest and
Republic engaged in a “covered transaction.” The con-
ditions of subparagraph (B) are satisfied because
Republic acquired 100% of Midwest. (It is therefore
unnecessary to consider whether the gates and landing
slots were worth more than Midwest’s meager equity
in the leased planes.) And subparagraph (A) is satisfied
if Midwest became part of a “single air carrier” with
Republic. That it did. Operations and schedules were
integrated; Republic answered the phones, took reserva-
tions, and began to fly Midwest’s routes with planes
and employees that came from its other subsidiary car-
riers. That’s why the National Mediation Board con-
cluded that all flight attendants are part of a single
pool, represented by a single union; that’s why the sen-
iority lists of the reservations clerks and mechanics
already have been integrated. When Republic abandoned
Midwest’s certificate and returned the leased planes,
this meant even more complete consolidation. Only
Republic remained, as a “single air carrier.”
Nothing in the text of the statute asks whether one of
the merging carriers is bankrupt and about to vanish when

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No. 11-1921 7
the transaction closes. There’s a good reason for the
omission: this statute grew out of American Airlines’
acquisition of Trans World Airlines, which was bankrupt
and would have closed its doors had it not been ac-
quired. TWA had its main hub in St. Louis; the two
Senators whose names are on the legislation repre-
sented the State of Missouri. (The original sponsors
were Senators Bond and Talent; Sen. McCaskill replaced
Sen. Talent as a sponsor when she succeeded him.) What
seniority TWA’s former employees would retain was a
contentious issue that threatened to frustrate the transac-
tion or precipitate a strike; the statute provides how
these transactions must be handled in the future. One
cannot remove bankrupt and soon-to-disappear carriers
from the statute’s coverage, as the Teamsters propose,
without simultaneously circumventing the statutory
text and frustrating the design behind it. “[W]hat those
words would mean in the mouth of a normal speaker
of English, using them in the circumstances in which
they were used” is that they govern all transactions
in which an acquisition is followed by joint operations,
whether or not one carrier was on the brink of collapse.
Republic acquired Midwest—what little of it remained—
lock, stock, and barrel, via a merger, which turns
two corporations into one, while the statute would
have been satisfied with the acquisition of only 50% of
Midwest’s assets.
The statutory requirement that the (formerly) separate
carriers operate as a single carrier matters when the
carriers maintain separate businesses. Although United
Airlines and Continental Airlines have merged (rather,

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8 No. 11-1921
their holding companies have merged), they have con-
tinued to operate as separate businesses, integrating
their operations only slowly. Until the joint operations
have reached the point that they have become a “single
air carrier,” they need not merge their seniority
lists. Midwest, by contrast, integrated operations with
Republic, Chautauqua, and Shuttle America expedit-
iously; that’s why it was able to give up its certif-
icate and planes, while transferring gates and landing
slots for use by the other jointly operated carriers.
Midwest and Republic engaged in a “covered transac-
tion.” The later wasting away of Midwest illustrates
the completeness of the integration; it does not negate
the statute’s coverage.
The judgment is reversed, and the case is remanded
for proceedings consistent with this opinion.
11-30-11

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