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July 2, 1984


The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge.

 The International Association of Machinists and Aerospace Workers, AFL-CIO ("IAM") has been certified by the National Mediation Board ("NMB") as the bargaining representative of certain employees of defendant Alitalia Airlines ("Alitalia"). For reasons clarified below, Alitalia refuses to recognize and bargain with IAM as the representative of some of these employees. IAM and its Local bring this action for equitable relief enforcing Alitalia's duty under § 2, Ninth of the Railway Labor Act (the "Act"), 45 U.S.C. § 152, Ninth, to bargain with the representative duly certified by the NMB. *fn1" The complaint also seeks a "status quo" injunction which would reverse certain actions Alitalia has allegedly taken in violation of its duty under § 6 of the Act, 45 U.S.C. § 156, not to change unilaterally its employees' conditions of employment prior to bargaining. A request for damages on behalf of those employees harmed by the alleged changes accompanies this request for injunctive relief. Before the Court now are the applications for preliminary equitable relief.


 The facts surrounding the NMB certification, although complex, are not in dispute. IAM has actively represented some Alitalia employees since 1952. In August of that year, the NMB, pursuant to its mandate under 45 U.S.C. § 152, Ninth, certified IAM as the representative of what was then a single class *fn2" of Alitalia employees denoted as "Clerical, Office, Stores, Fleet and Passenger Service Employees." NMB Case No. R-2597 (August 8, 1952). The class by its terms included most of Alitalia's non-executive employees. Prior to certifying IAM, NMB conducted an election and found that nine of the eleven employees eligible to vote supported the union's representation.

 It is not clear which employees IAM undertook to represent in the years immediately following the 1952 certification order, since there is no evidence indicating what steps IAM took in the first few years after the certification to implement it. However, the record is clear that, for whatever reasons, by 1961 IAM was actively representing - that is, bargaining on behalf of - only the fleet service personnel. In that year it sought to extend its representation to include certain passenger service employees, but Alitalia objected. At that time, according to Alitalia's uncontroverted records, the parties jointly requested that the NMB appoint a mediator to conduct an election among the relevant employees to settle the issue of representation. Although the issue of representation would appear to have been settled by NMB's prior 1952 certification of IAM as these employees' representative, NMB complied with the request and sent a mediator. Despite the absence of any provision in the Act permitting a representation dispute to be settled by an election on consent of employer and union, the parties agreed to abide by the results of the election. IAM won.

 A similar dispute between the parties arose in 1970.Again IAM sought to represent certain employees who were otherwise within the terms of the 1952 certification, and when Alitalia objected IAM agreed to settle the representation dispute through an election. The same mediator was asked to return and conduct a similar consent election. This time IAM lost among all but one subclass of employees.Thus by 1970 IAM actively represented only a portion of the employees for whom it was the certified representative. *fn3"

 In 1976, the International Brotherhood of Teamsters ("Teamsters") sought from NMB certification to represent the Alitalia class of Clerical, Office, Stores, Fleet and Passenger Service employees - in other words, the whole class of employees for whom IAM had been certified in 1952. The Teamsters application precipitated a NMB investigation into the dealings between IAM and Alitalia. In reviewing these relations, NMB scolded the IAM and Alitalia for failing to conform their bargaining activity to the outlines of the 1952 certification. It noted:

 that it is [NMB] which determines the craft or class by the exercise of its powers pursuant to Section 2, Ninth of the Act, and that both the representatative of the craft or class and the carrier must bargain collectively in such manner as not to exclude from the craft or class employees or employee groupings which [NMB] has determined are properly included.

 NMB Case No. R-4608 (July 2, 1976), at 2. The report recognized that IAM and Alitalia had failed in carrying out their responsibilities under the Act in part because of their reliance on the actions of the mediator, but it called such reliance "unwarrantd". Id. The Act prescribes elections only if the employees - not the carrier - dispute the propriety of their representation. Because no "representation dispute pursuant to Section 2, Ninth of the Act existed among the employees' at the time of the prior mediations, elections were improper. Id. at 2-3. Because it found interest in Teamster representation among Alitalia employees insufficient to create a Section 2, Ninth "dispute," NMB concluded by reaffirming the validity of the 1952 certification of IAM and dismissing the Teamster application.

 The record is barren of evidence indicating what steps, if any, the parties took to include the remainder of Alitalia's employees in IAM bargaining immediately after this 1976 decision. It is not disputed, however, that the limited scope of IAM's representation was not increased after the 1976 order. Instead, it continued to bargain on behalf of only Fleet Service personnel and a minority of Passenger Service employees. The evidentiary trail begins again in 1980, when the Office & Professional Employees International Union ("OPEIU") petitioned NMB to permit it to represent "Office Clerical Employees" at Alitalia. Such employees were within the 1952 order and thus ostensibly represented by IAM. They were, however, only a subclass of the certified bargaining unit. Therefore, NMB decided that resolving the question of whether OPEIU should be permitted to represent only the Officer Clerical workers required it to decide whether Office Clerical workers should be split off as a separate bargaining unit from the remainder of the employees in the broad 1952 class. NMB again conducted an investigation. Rather than restricting its decision to officeworkers, NMB reviewed the whole of the Alitalia workforce, finding that it had grown from the eleven members of 1952 to over 450. NMB Case No. R-5134 (February 16, 1982), at 223. Such growth, NMB concluded, made division of the workforce into several bargaining units appropriate, and it split the employees into the classes of Fleet Service, Passenger Service, and Office Clerical Employees.It reaffirmed but amended the 1952 certification order to include these three classes of employees. In a later decision, NMB found interest among Office Clerical workers in union representation so low that it effectively decertified IAM.NMB Case No. R-5134 (May 13, 1982); Quinn Letter of May 18, 1983.

 IAM finally attempted to assume its responsibilities under the 1952 certification order on July 7, 1982, by demanding that Alitalia bargain with the IAM concerning the terms and conditions of employment of all the Fleet Service and Passenger Service employees. *fn4" Alitalia refused, claiming that "under the circumstances . . . Alitalia does not believe that it is appropriate to force these employees into a union without affording them the democratic right to determine such a matter for themselves." Wilsker Affidavit of January 6, 1984, at P26. As a result of subsequent dealings between carrier and union, NMB has reaffirmed its position that IAM is the certified bargaining representative of the Fleet and Passenger Service employees. Quinn Letter of August 10, 1983. Since NMB is powerless under the Act to enforce the duties created by its certification orders, IAM brings this action to force Alitalia to bargain in conformance with the 1952 order.


 Alitalia has an affirmative, mandatory duty to bargain with a union properly certified by NMB as the representative of its employees. Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 547-549, 81 L. Ed. 789, 57 S. Ct. 592 (1937). The duty may be enforced in equity. Id., at 553. Alitalia's challenge is not to the original 1952 certification, which it concedes to have been the result of a proper exercise of NMB's power. Instead, Alitalia claims that NMB "grossly exceeded its statutory authority when it applied the original 1952 certification . . . to both the new Passenger Unit and Fleet Unit without conducting an investigation of employee support." Alitalia argues that in light of the 1970 election results, which indicated that at that time the majority of the ...

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