decisions of Eastern. Employment opportunities have been changed in the past; working conditions have frequently changed, arising from hub closures or discontinuance of service. Bumping and bidding rights have been frequently exercised by Eastern's employees, schedules have varied and the airlines' employees have adjusted and adapted. The unions have failed to identify any legal cognizable difference between the Shuttle sale and Eastern's repeated closures of principal hubs, elimination of discrete operating units, and sales of assets.
This Circuit has stated that "if the shuttle sale is analogous to the closing of a hub, the abandonment of a route or the sale of assets, then a question may be raised whether, under the parties' established bargaining tradition, the proposed action is subject to bargaining." IAM v. Eastern Air Lines, 270 U.S. App. D.C. 352, 849 F.2d 1481, 1487 (D.C. Cir. 1988). After carefully examining Eastern's past practices, the Court holds that the proposed Shuttle sale is similar to prior actions in which the unions acquiesced; therefore, it falls within their bargaining agreements.
Since Eastern has no obligation to bargain with the plaintiff unions over its decision to sell the Shuttle, the proposed action does not create a major dispute. The collective bargaining provisions of the RLA do not prevent consummation of the Shuttle transaction. See, Japan Air Lines Co. v. IAM, 538 F.2d 46, 51-52 (2d Cir. 1976) (no duty to bargain over decision to continue practice of subcontracting); IAM v. Northeast Airlines, Inc., 473 F.2d 549, 556-57 (1st Cir.), cert. denied, 409 U.S. 845, 34 L. Ed. 2d 85, 93 S. Ct. 48 (1972) (no duty to bargain over decision to merge) (cited with approval by the Supreme Court in First Nat'l Maintenance Corp. v. NLRB, 452 U.S. 666, 683 n.20, 69 L. Ed. 2d 318, 101 S. Ct. 2573 (1981)) ("First National"); ALPA v. Transamerica Airlines, Inc., 123 L.R.R.M. 2682 (E.D.N.Y. 1986) (no obligation to bargain over decision to shut down airline and lease 12 aircraft to another carrier).
The Supreme Court has consistently held that fundamental management decisions concerning the scope and direction of an employer's business fall outside the area of mandatory bargaining subjects. Justice Stewart explained in his concurring opinion in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 223, 13 L. Ed. 2d 233, 85 S. Ct. 398 (1964), that "nothing the Court holds today should be understood as imposing a duty to bargain collectively regarding such managerial decisions, which lie at the core of entrepreneurial control." Seventeen years later, the Court held in First National, 452 U.S. at 686, that an employer has no obligation to bargain with the union over its decision to terminate a portion of its business. From Fibreboard to First Nat'l Maintenance, the Supreme Court has recognized that management retains a prerogative to make certain fundamental business decisions without an obligation to bargain with its unions. This concept has also been applied by courts confronted with analogous issues under the RLA.
ALPA v. Eastern, at 905, 908-909; Empresa Ecuatoriana de Aviacion v. District Lodge No. 100, 690 F.2d 838 (11th Cir. 1982) cert. dismissed, 463 U.S. 1250, 77 L. Ed. 2d 1457, 104 S. Ct. 40 (1983); Japan Air Lines Co., 538 F.2d 46; Northeast Airlines, 473 F.2d 549; Railway Express v. Brotherhood of Ry. Airline & S.S. Clerks, 437 F.2d 388 (5th Cir.) cert. denied, 403 U.S. 919, 29 L. Ed. 2d 696, 91 S. Ct. 2230 (1971); Brotherhood of Locomotive Engineers v. Baltimore & Ohio R.R., 310 F.2d 503 (7th Cir.), aff'd, 372 U.S. 284, 9 L. Ed. 2d 759, 83 S. Ct. 691 (1963).
The unions argue that Eastern must bargain over the effects of the proposed Shuttle sale before the airline can close the deal. The Court disagrees. First, Eastern's actions are "arguably comprehended" on the terms of its agreements with the plaintiffs; therefore, any dispute with respect to the impacts of the Shuttle sale upon employees must be considered minor. When this Court in its August 30, 1988 ruling instructed Eastern to "comply with the intricate RLA bargaining process" before it could furlough 4,000 employees in September 1988, this Circuit reversed, finding that the pre-existing provisions of Eastern's collective bargaining agreements contemplated work reductions even though they did not specify what forces might cause such reductions. ALPA v. Eastern, at 898, 900, 912; International Bhd. of Elec. Workers v. Washington Terminal Co., 154 U.S. App. D.C. 119, 473 F.2d 1156, 1172-73 (D.C. Cir. 1972), cert. denied, 411 U.S. 906, 36 L. Ed. 2d 195, 93 S. Ct. 1530 (1973).
Secondly, while the Third Circuit in Railway Labor Executives' Association v. Pittsburgh & Lake Erie R.R., 845 F.2d 420 (3d Cir. 1988), cert. granted, 488 U.S. 965, 102 L. Ed. 2d 526, 109 S. Ct. 489, 57 U.S.L.W. 3376 (1988) (" Pittsburgh & Lake Erie R.R."), held that a carrier must bargain over the effects of its business decisions before implementing any changes, this Circuit and others have disagreed. As our Circuit recently held, the agreements and the course of dealing contemplated the effects of such proposals. ALPA v. Eastern, at 897, 899-900. In ALPA v. Transamerica Airlines, Inc., 817 F.2d 510 (9th Cir. 1987), cert. denied, 484 U.S. 963, 98 L. Ed. 2d 391, 108 S. Ct. 451 (1987), where the issue of effects bargaining was not even litigated, the Ninth Circuit recognized as a general principle that effects bargaining could continue after the carrier ceased operations. Id. at 512 n.1. In Northeast Airlines, 473 F.2d at 558-59, the First Circuit stated that "where it is clear, as in the case of a merger, that bargaining about some effects of the decision would be ineffective unless the company could be required to renegotiate the merger, we believe that the duty to bargain about those effects does not arise at all."
In Pittsburgh and Lake Erie R.R., the Third Circuit affirmed the district court's status quo injunction, enjoining the sale of the entire business only "to the extent that such sale does not include provisions for the maintenance of the status quo. . . ." Railway Labor Executives Ass'n v. Pittsburgh & Lake Erie R.R., 677 F. Supp. 830 (W.D. Pa. 1987). In contrast to the present case, that court enjoined the sale because there was no past practice and the preexisting labor agreement did not provide for the effects of the transaction.
Finally, in First National Maintenance, 452 U.S. 666, 69 L. Ed. 2d 318, 101 S. Ct. 2573, the Supreme Court made it absolutely clear that a company need not secure the agreement of its unions or exhaust bargaining before it carries out a decision to close its business. The company's only obligation is to offer "meaningful bargaining at a meaningful time" over the effects of the decision. Id. at 682. From the outset, Eastern has offered to bargain over its decision to sell the Shuttle to Donald Trump. Matthews Declaration at paras. 5-10 (Dec. 8, 1988). When it announced the Trump deal, an Eastern executive wrote that the airline was "prepared to bargain about the effects of such decisions, as it has in the past, and to entertain any proposals the IAM might present on this subject." Matthews Declaration at Ex. G (Oct 12, 1988 letter from Matthews to Bryan). Eastern has never bargained over possible effects to its unions prior to closing a sale of assets or terminating flights. However, it has engaged in effects bargaining after the transactions and new schedules have been completed. These post-transaction negotiations have been "meaningful" as required by the Supreme Court. For example, Eastern initiated bargaining about the effects of the September 1988 schedule change, offering union members a new early-out option with pass privileges. Eastern reached agreement with the TWU on September 1, 1988, and the IAM on October 3, 1988, on extended leave programs to limit the employee impact of the Fall downsizing. Matthews Declaration at para. 4.
3. The Shuttle Sale is a Minor Dispute
Eastern has met its "relatively light" burden of demonstrating that the Shuttle sale is a minor dispute. Chicago & N.W. Transp Co. v. Railway Labor Executives' Ass'n, 855 F.2d 1277, 1283 (7th Cir. 1988), cert. denied, 488 U.S. 966, 57 U.S.L.W. 3376, 102 L. Ed. 2d 529, 109 S. Ct. 493 (1988) (quoting Brotherhood of Maintenance of Way Employees, Lodge 16, 802 F.2d at 1022). Eastern's position cannot be said to constitute the type of clear departure from its past practices necessary to trigger a finding of a major dispute under the RLA format. Id. at 1285; see also, Railway Labor Executives' Ass'n v. Boston & Maine Corp., 808 F.2d 150, 159 (1st Cir. 1986), cert. denied 484 U.S. 830, 98 L. Ed. 2d 62, 108 S. Ct. 102 (1987).
Our Circuit's recent ruling holds true in this case:
Given the express contractual terms and the similarity between the proposed [action by Eastern] and previous ones, the record compels a finding that Eastern's proposal [is] covered by the collective bargaining agreement and the course of dealing between the company and [its unions]. This [proposed action] is a minor dispute for purposes of resolution through the RLA, and the district court lack[s] jurisdiction to enjoin Eastern's [proposed action].
ALPA v. Eastern, at 898. The precedent clearly dictates that in a circumstance such as the present, this Court must deem the matter a minor dispute.
C. THE SHUTTLE SALE DOES NOT UNLAWFULLY INTERFERE WITH THE UNIONS
Plaintiffs contend that the sale of the Shuttle violates Sections 2 Third and Fourth of the RLA because it undermines the representative status of ALPA, IAM and Local 553 of TWU. They also claim that the sale is unlawful because its purpose is to discourage union activity at Eastern's remaining operations. Eastern counters that the unions have not shown that the airline's decision to sell the Shuttle was motivated by a desire to interfere with the unions. Eastern also contends that under the "mixed motive" Wright Line standard, 251 N.L.R.B. 1083 (1980), enf. granted, NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989, 71 L. Ed. 2d 848, 102 S. Ct. 1612 (1982), there is no labor law violation because Eastern has shown a compelling business need for selling the Shuttle.
Under the Wright Line test, plaintiff must make a prima facie showing sufficient to support the inference that the employer's anti-union bias was a "motivating factor." Once this is established, the burden shifts to the employer to demonstrate that it would have taken the same action even in the absence of union animus.
This Circuit recently held in ALPA v. Eastern, at 902=913, that attacks on Eastern's flight reductions and employee furloughs as manifesting animus, are subject to analysis under Wright Line.
We are persuaded that the Wright Line principle is applicable here. . . . Application of the Wright Line principle will provide  full protection for the union activity protected by § 2 Third and Fourth . . . and will avoid creating perverse incentives in either management or labor.