Air Wisconsin Pilots Protection Committee v. Sanderson

• Decision Date: 30 July 1990
• Docket Number: No. 89-3350,89-3350
• Citation: 909 F.2d 213
• Parties: 134 L.R.R.M. (BNA) 3039, 116 Lab.Cas. P 10,258 AIR WISCONSIN PILOTS PROTECTION COMMITTEE, James M. Fenske, Gary M. Pelach, Richard J. Magiera, and Thomas K. Bly, Plaintiffs-Appellants, v. Clifford R. SANDERSON, Trustee and Acting Chairman of Air Wisconsin Master Executive Council, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 213

909 F.2d 213

134 L.R.R.M. (BNA) 3039, 116 Lab.Cas. P 10,258

AIR WISCONSIN PILOTS PROTECTION COMMITTEE, James M. Fenske Gary M. Pelach, Richard J. Magiera, and Thomas K Bly, Plaintiffs-Appellants, v. Clifford R. SANDERSON, Trustee and Acting Chairman of Air Wisconsin Master Executive Council, et al Defendants-Appellees.

No. 89-3350.

United States Court of Appeals Seventh Circuit.

Argued June 14, 1990.

Decided July 30, 1990.

Harvey M. Silets, Susan W. Brenner, Silets & Martin, Chicago, Ill., Arthur M. Wisehart, Steven Lim, Wisehart & Koch, New York City, for plaintiffs-appellants.

Irving M. Friedman, Michael B. Erp, Katz, Friedman, Schur & Eagle, Chicago, Ill., Robert S. Savelson, Peter Herman, Cohen, Weiss & Simon, New York City, Thomas J. Kassin, Michael H. Campbell, Ford & Harrison, Atlanta, Ga., for defendants-appellees.

Before POSNER, FLAUM and KANNE, Circuit Judges.

POSNER, Circuit Judge.

Two officers of the Air Wisconsin Master Executive Council, a subordinate body of the Air Line Pilots Association, International ("ALPA"), together with two other Air Wisconsin pilots and an association that these four men have formed called the Air Wisconsin Pilots Protection Committee, have sued ALPA, and several individuals who are agents of ALPA, charging violations of the Railway Labor and Landrum-Griffin Acts. The individual defendants are trustees whom ALPA appointed to wrest control of the Air Wisconsin Master Executive Council from the plaintiffs. The district judge granted the defendants' motion for summary judgment and dismissed the suit.

The facts are not in dispute. In 1985 Air Wisconsin acquired by merger Mississippi Valley Airlines, a slightly smaller but basically similar airline. ALPA represented the pilots of both airlines in collective bargaining under the Railway Labor Act (which applies to airlines as well as to railroads), and each group of pilots had seniority rights based on the length of their service with their respective airline. The merger of the airlines required merger of the seniority lists. ALPA had previously issued a policy statement to govern the merger of seniority lists of pilots whom it represents. The statement directs each group of pilots to choose two representatives to negotiate the merger of the lists and if the negotiations break down, as they did here, the dispute is to be submitted to a board of arbitrators whose award "shall be final and binding on all parties to the arbitration and shall be defended by ALPA."

Air Wisconsin's pilots wanted the seniority lists merged on the basis purely of length of service: the pilot hired earliest by either airline would have the greatest seniority in the post-merger Air Wisconsin, the next pilot to be hired by either airline would have the second greatest seniority, and so on down the line. Mississippi Valley's pilots wanted credit for the fact that, before the merger, their airline had been growing more rapidly than Air Wisconsin. The arbitrators split the difference. Their award, set forth in a lengthy document rich in a jargon unfamiliar to us, gave Mississippi Valley's pilots greater seniority than they would have obtained if only length of service had been considered, but less than they had asked for. Some, and probably a majority, of the pilots of the pre-merger Air Wisconsin were unhappy with the award, but none attempted to challenge it in court. Instead, some of them tried to replace ALPA as the collective bargaining representative of Air Wisconsin's pilots with a newly created union, since ALPA was committed by its policy statement to defending the arbitration award. In 1986 the National Mediation Board conducted an election pursuant to the Railway Labor Act to determine whether ALPA or the new union would represent Air Wisconsin's pilots for collective bargaining purposes. A majority of the pilots, presumably composed of a small minority of the pre-merger Air Wisconsin pilots plus an overwhelming majority of the former Mississippi Valley Airlines pilots, voted to retain ALPA.

Undaunted by this defeat, the disgruntled Air Wisconsin pilots decided to change the locus of their struggle to the Air Wisconsin Master Executive Council. ALPA does not have locals, but at each airline that it represents there is a committee, called the Master Executive Council, elected by the pilots of that airline. These committees are subordinate bodies of ALPA. Their powers are defined in ALPA's constitution and by-laws, and are various; for example, a proposal to call a strike may not be submitted to an airline's pilots unless first approved by the Master Executive Council for the airline. But their powers do not include the power to act as collective bargaining representative--ALPA itself is the bargaining representative of the pilots employed by ALPA-organized airlines. And the councils are forbidden to "initiate any action that is inconsistent with the Constitution and By-Laws or with the best interests of the Association or the general membership."

Unheeding of this prohibition the Air Wisconsin Master Executive Council, dominated by pilots of the pre-merger Air Wisconsin, sent a letter to all Air Wisconsin pilots enclosing a proposal to replace the merged seniority list created by the arbitration award with a list based on length of service--just as the representatives of the Air Wisconsin's pilots before the merger had proposed to the arbitrators--plus a secret ballot to be used to vote for or against the proposal. The cover letter stated that the proposal would "pass" if a majority of the ballots "ratified" it. Upon learning of this and related acts of defiance, ALPA placed the Master Executive Council in trusteeship. The suit claims that by thus squelching the Council's attempt to reopen the issue of seniority, ALPA violated its duty (imposed on collective bargaining representatives by interpretation of the Railway Labor Act) to represent Air Wisconsin's original pilots fairly; violated ALPA's constitution, by-laws, and policy statements; and violated the provisions of the Landrum-Griffin Act that govern trusteeships and that guarantee union members the right to vote and the right of free speech.

The suit was brought in 1987, and in 1989 the plaintiffs again failed in their effort to decertify ALPA as the collective bargaining representative of Air Wisconsin's pilots. They thus have struck out not only before the arbitrators but twice in the electoral marketplace. They have refused to call it quits and instead, in the characteristic style of modern Americans, have turned to the courts.

A union empowered by federal law to be the exclusive representative of a group of workers for purposes of bargaining with their employer over wages and over terms and conditions of employment has a correlative duty, fiduciary in character, to represent all members of the group fairly, that is, without favoritism, prejudice, or other discrimination. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967). ALPA satisfied that duty in this case, however, by establishing, long before the case arose, a fair process for determining seniority in an airline resulting from a merger. Representatives of the affected workers negotiate, and if they are unable to come to terms the matter is referred to arbitration. The plaintiffs disagree violently with the result of the arbitration in this case but have not pointed to any features of the process--whether the method of selecting the arbitrators, or their background, or the procedures they employed--as being unfair. More important, ALPA's belief that such arbitrations should be final and binding and its corollary that ALPA shall be obligated to defend them would not have prevented the pilots from challenging the arbitration award in court, if the award were infected by fraud or by a serious conflict of interest or were inconsistent with the terms of reference to arbitration. Brotherhood of Locomotive Engineers v. Atchison, Topeka & Santa Fe Ry., 768 F.2d 914, 921 (7th Cir.1985); Dreis & Krump Mfg. Co. v. International Ass'n of Machinists & Aerospace Workers, 802 F.2d 247, 253 (7th Cir.1986). (But they mounted no challenge.) ALPA's policy signifies only that if the award is valid, it is definitive so far as ALPA is concerned. The reason for the policy is not hard to see. If ALPA were free to ignore the merged seniority list, the employees of the post-merger airline would have very little job security; as a concomitant, disputes over seniority would fester--as they have done in this case, in which the plaintiffs are indirectly challenging the finality of the merged seniority list.

The system that ALPA has created for determining seniority in a merged work force is not biased in favor of one group of workers or prejudiced against another. It was as likely to yield an award in favor of Air Wisconsin's pilots as in favor of Mississippi Valley's. It is fair, and nothing more is required to comply with the duty of fair representation, since "so long as the union does not intentionally harm a member or class of members, it will be deemed to have represented its members fairly." Olsen v. United Parcel Service, 892 F.2d 1290, 1294 (7th Cir.1990). That the system ALPA has created places a good deal of power in the hand of arbitrators is not a sign of "unfairness" in the limited sense relevant to evaluating claims of breach of the duty of fair representation, especially since the alternative would be to encourage continuing and acrimonious disputes among workers by opening seniority to continual revision. It is not in the interest of organized labor to incite workers to fight among themselves over job rights. Nor is it in the workers' own interest, behind the veil of ignorance, that is, before they know whether they have been the winner or loser of the arbitration. Here as elsewhere finality serves important social purposes and we certainly cannot pronounce ALPA unfair for giving the...