Air Line Pilots Ass'n, Intern. v. Trans World Airlines, Inc.

Decision Date23 August 1983
Docket NumberD,Nos. 1013,1014 and 1166,s. 1013
Citation713 F.2d 940
Parties114 L.R.R.M. (BNA) 2241, 32 Fair Empl.Prac.Cas. (BNA) 1185, 32 Empl. Prac. Dec. P 33,757, 98 Lab.Cas. P 10,386 AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Plaintiff-Appellant, v. TRANS WORLD AIRLINES, INC., Defendant-Appellee, Harold H. Thurston, et al. and Nicholas Vasilaros, et al., Defendants- Intervenors Appellees. Harold H. Thurston, Christopher J. Clark and C. A. Parkhill, Plaintiffs- Appellants, Equal Employment Opportunity Commission, Plaintiff-Intervenor Appellant, v. Trans World Airlines, Inc. and Air Line Pilots Association, International, Defendants-Appellees. ockets 82-6266, 82-6306 and 82-6280.
CourtU.S. Court of Appeals — Second Circuit

Jay P. Levy-Warren, New York City (Michael E. Abram, Cohen, Weiss & Simon, New York City, of counsel), for plaintiff-appellant Air Line Pilots Ass'n, Intern.

Susan Buckingham Reilly, Atty., E.E.O.C., Washington, D.C. (David L. Slate, Gen. Counsel, Philip B. Sklover, Associate Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, E.E.O.C., Washington, D.C., of counsel), for plaintiff-intervenor appellant E.E.O.C.

Henry J. Oechler, Jr., New York City (Donald I Strauber, Chadbourne, Parke, Whiteside & Wolff, New York City, of counsel), for defendant-appellee Trans World Airlines, Inc.

Raymond C. Fay, Chicago, Ill. (Alan M. Serwer, Susan D. Goland, Haley, Bader & Potts, Chicago, Ill., of counsel), for plaintiffs-appellants Harold H. Thurston, et al.

Asher W. Schwartz, New York City (O'Donnell & Schwartz, New York City, of counsel), for defendants-intervenors appellees Nicholas Vasilaros, et al.


MANSFIELD, Circuit Judge:

These consolidated appeals from judgments in two separate lawsuits against Trans World Airlines, Inc. ("TWA") in the Southern District of New York, Kevin T. Duffy, Judge, grow out of actions taken by TWA on August 10, 1978, permitting flight deck crew members in the status of "flight engineer" to work until the age of 70 instead of requiring them, as had been TWA's policy with respect to all such crew members (including captains and first officers), to retire at age 60. TWA made the change in response to Congress' amendment on April 6, 1978, of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1976 and Supp. V 1981) to prohibit mandatory retirement prior to age 70.

In one action the Air Line Pilots Association ("ALPA"), bargaining representative of the flight deck crew members, challenged TWA's policy, seeking a declaratory judgment that age under 60 is a bona fide occupational qualification ("BFOQ") for flight engineers within the meaning of § 623(f)(1) of the ADEA 1 and that TWA's action represented a unilateral change in working conditions in violation of the Railway Labor Act ("RLA"), 45 U.S.C. § 156-188 (1976 & Supp. V 1981). 2 ALPA appeals from a summary judgment in favor of TWA. In a second action (Thurston, et al. v. TWA and ALPA ) a group of crew members (captains and first officers) formerly employed by TWA, who had been unsuccessful in securing flight engineer status before their 60th birthdays, claim that TWA's policy, instigated and encouraged by ALPA, discriminates against them in violation of the ADEA by refusing to permit them to downbid to the position of flight engineer after they reached 60 years. 3 The crew member-plaintiffs appeal from a summary judgment dismissing their action. 4 We affirm the dismissal of ALPA's action and reverse the dismissal of the Thurston action.

The material facts are not in dispute. 5 TWA, a commercial aircraft carrier, employs approximately 3,000 "pilots" 6 on its wide-bodied planes in three (and sometimes four) cockpit positions. The "captain" commands the aircraft and is responsible for all phases of its operation. The "first officer" assists or relieves the captain as co-pilot. The "flight engineer" sits at a side-facing instrument panel and is primarily responsible for pre-flight inspection and in-flight monitoring of the mechanical, electrical, and electronic functioning of the aircraft.

A flight engineer does not operate the flight controls. Unlike the captain and first officer, who are required by the Federal Aviation Administration ("FAA") to have first class medical certification, the flight engineer needs only a second class medical certificate. The flight engineer does have crucial duties in emergencies, such as an all-engine flame-out but, should the flight engineer become incapacitated, the "fail-safe" principle of crew redundancy means that the first officer would perform the engineer's duties until the aircraft is brought to an emergency landing. In the event of incapacitation of the captain or first officer, the flight engineer may perform first officer duties except for take-off and landing. On certain long-distance flights there is a fourth crew member, an "International Relief Officer" ("IRO"), who acts as third in command and who performs, inter alia, first officer duties (excluding take-off and landing) and flight engineer duties.

Under an FAA regulation, 14 C.F.R. § 121.383(c) (1982), persons are prohibited from serving as "pilots" on a commercial aircraft carrier beyond age 60 ("Age 60 Rule"). Captains, first officers, and IRO's are considered "pilots" for purposes of the Age 60 Rule. The Age 60 Rule, however, does not apply to the third seat position of flight engineer.

The ADEA as amended prohibits an employer from discriminating against an employee between the ages of 40 and 70 "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age ..." and from limiting, segregating, or classifying its employees "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. §§ 623(a)(1), (a)(2). The Act further forbids the involuntary retirement of an employee within the protected age group "because of the age of such individual." Id. § 623(f)(2). It is also unlawful under the ADEA for a labor organization "to cause or attempt to cause an employer to discriminate against an individual in violation of [the Act] ...." Id. § 623(c)(3).

The ADEA, however, permits an employer or labor organization to take actions otherwise prohibited under the Act "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age," id. § 623(f)(1), or "to observe the terms of a bona fide seniority system ... which is not a subterfuge to evade the purposes of [the Act] ...." Id. § 623(f)(2).

The parties agree for purposes of this litigation that the FAA Age 60 Rule may establish a "bona fide occupational qualification" ("BFOQ") for captains and first officers within the meaning of 29 U.S.C. § 623(f)(1) of the ADEA. Cf. e.g., Starr v. FAA, 589 F.2d 307, 313 (7th Cir.1978); Rombough v. FAA, 594 F.2d 893, 899 (2d Cir.1979) (upholding FAA's denial of exemption from Age 60 Rule as within agency's discretion); but cf. Tuohy v. Ford Motor Co., 675 F.2d 842, 846 (6th Cir.1982). 7

The "Retirement Plan for Pilots of Trans World Airlines, Inc.," ("Retirement Plan") negotiated as part of the 1977 Working Agreement between TWA and ALPA and incorporated in it by reference, provided that the "normal retirement date is the [pilot's] 8 60th birthday" and that "[pilots] must retire by their normal retirement date unless written approval of the company is granted for continuance in employment." Articles 4.1, 4.2. Article 4.3 of the agreement provides for the disbursement of retirement benefits in the event of employment past age 60. The agreement was re-negotiated in 1979 (with a non-renegotiation provision stating that the agreement could not be reopened until September 30, 1981) and again in April 1982. The retirement provisions remained unchanged. They had governed the relationship for many years prior to these agreements, and, historically, TWA had employed no flight crew member over the age of 60 on its airplanes until 1978.

Following Congress' April 6, 1978, amendment of the ADEA to prohibit, inter alia, the involuntary retirement of persons before the age of 70 solely on the basis of age even if in accordance with a bona fide seniority plan, 29 U.S.C. § 623(f)(2), TWA failed to agree with ALPA on a revision of TWA's retirement program so that it would comply with the 1978 amendments. On August 10, 1978, TWA unilaterally issued a bulletin authorizing the continued or reactivated employment of "any cockpit crew member who is in a flight engineer status at age 60," retroactive to April 6, 1978. The term "flight engineer status" was not defined and the procedure whereby captains and first officers approaching 60 might acquire that status was not described. The bulletin simply provided that those flight deck officers who wanted to work past 60 would "be governed by the provisions of the current Working Agreement" and the FAA's Age 60 Rule for captains and first officers.

To implement its new policy TWA immediately reinstated those who had been in flight engineer status on their 60th birthdays and had been retired after April 6, 1978. Flight engineers reaching their 60th birthday after August 10, 1978 continued in that status. However, captains and first officers who might seek to downbid themselves to the position of flight engineer and then work as such beyond age 60 were required to change their status to flight engineer in accordance with the seniority and bidding procedures of the Working Agreement.

Under those procedures a captain or first officer approaching 60 years of age was required successfully to complete his downbid with an effective date as a flight engineer before ...

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