Alaska Airlines, Inc. v. Brock, Civ. A. No. 84-0485.

• Decision Date: 22 January 1986
• Docket Number: Civ. A. No. 84-0485.
• Citation: 632 F. Supp. 178
• Parties: ALASKA AIRLINES, INC., et al., Plaintiffs, v. William E. BROCK, et al., Defendants, Air Line Pilots Association International, et al., Intervening Defendants.
• Court: U.S. District Court — District of Columbia

632 F. Supp. 178

ALASKA AIRLINES, INC., et al., Plaintiffs, v. William E. BROCK, et al., Defendants, Air Line Pilots Association International, et al., Intervening Defendants.

Civ. A. No. 84-0485.

United States District Court, District of Columbia.

January 22, 1986.

William T. Coleman, Jr., Richard C. Warmer, Donald T. Bliss and John Beisner, Washington, D.C., for plaintiffs.

Robert C. Seldon, Asst. U.S. Atty., Washington, D.C., for defendants.

James W. Johnson, James W. Tello, Air Line Pilots Assn., Phillip R. Kete, Stephen Crable, Ass'n of Flight Attendants, William G. Mahoney, Clinton J. Miller, John J. Sullivan and Marvin S. Cohen, Washington, D.C., for intervening defendants.

MEMORANDUM

GESELL, District Judge.

This case involves a multitude of challenges to the Department of Labor's regulations under the employee protection provisions of the Airline Deregulation Act. 49 U.S.C. § 1552. The case is before the Court after remand on motions for summary judgment or affirmance of the Secretary's regulations, there being no material facts in dispute. After reviewing the original and supplementary briefs of the parties and hearing two oral arguments on these issues, the Court makes the following rulings.

Background

When Congress passed the Airline Deregulation Act of 1978 it included an employee protection program to protect employees who had relied on employment with regulated carriers and might be displaced in the transition to a deregulated, competitive market. Airline Deregulation Act, § 43, Pub.L. No. 95-504, 92 Stat. 1705, 1750 (1978) codified at 49 U.S.C. § 1552. Although this program, § 43 of the Act, has been in effect for over seven years, its turbulent history has prevented airline employees from receiving any substantial benefits from its provisions.

Section 43 contains two prongs. The first directed the Secretary of Labor to establish a program for providing displaced workers with monetary assistance funded from the United States Treasury. 49 U.S.C. § 1552(a)-(c). Congress has never appropriated funds for this program so no implementing regulations have been promulgated and no assistance has ever been provided by the government.

In addition to this monetary assistance, the statute establishes a second program, § 43(d), which obligates the airlines to give certain "protected employees" a first-right-of-hire when filling job vacancies. The Secretary of Labor's original proposed regulations were noticed for comment in 1979 but never resulted in a final rule. 44 Fed.Reg. 19146 (1979). A revised set of proposed regulations was issued in 1982 and published as a final rule in 1983. 47 Fed.Reg. 41304 (1982); 48 Fed.Reg. 53854 (1983). On the date these regulations became effective, this Court concluded that the unconstitutional legislative veto provision of the statute was not severable from its other provisions and therefore the regulations were invalid. Alaska Airlines v. Donovan, 594 F.Supp. 92 (D.D.C.1984). The Court of Appeals disagreed and remanded the case to resolve plaintiffs' remaining challenges to the regulations. Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550 (D.C. Cir.1985), petition for cert. filed, No. 85-920 (November 27, 1985).

Due to this combination of Congressional inaction, administrative delay and litigation, protection for airline employees has remained an unfulfilled promise. Many airlines have resisted recognizing any duty to hire or taken the position that there is no duty until the Department of Labor regulations become effective. The courts are just now beginning to address the issue of whether a private right of action exists to enforce the duty to hire. See McDonald v. Piedmont Aviation, Inc., 625 F.Supp. 762 (S.D.N.Y.1986) (holding that private cause of action exists).

The Secretary has now reissued his regulations defining the airlines' duty to hire and requiring airlines to maintain a list of vacancies to assist protected employees in finding jobs. 50 Fed.Reg. 53094 (December 27, 1985). The plaintiffs, representing fifteen airlines that were certificated by the Civil Aeronautics Board prior to deregulation, argue that the Secretary's regulations are based on an erroneous and unconstitutional interpretation of the Act and that the Secretary arbitrarily and capriciously ignored the conflicts between his regulations and other legal obligations of the airlines.

Discussion

I. The Scope of the Duty to Hire.

The Airlines' primary argument is that the Secretary of Labor's interpretation of the statutory duty to hire is too broad. According to the Airlines, Congress only intended to protect the victims of deregulation —not employees who are terminated due to other reasons, such as poor business practices or general business conditions. But under the Secretary's regulations there is no requirement that employees show that their termination or furlough was related to deregulation. An employee is eligible for the hiring preference if he had four years of service with a single regulated airline at the time of deregulation and is involuntarily terminated or furloughed within ten years after the date of deregulation. The only exceptions from this broad definition of eligibility are airline employees who are retired, terminated for cause, on strike, or who voluntarily resign or quit. 29 C.F.R. § 220.10. The Secretary maintains that the broad scope of these regulations is compelled by the language and legislative history of the Act.

Resolving this dispute requires a careful examination of the language of the Act. Congress defined the phrase "protected employee" as a person who at the date of deregulation had been employed for at least four years by a certificated air carrier. 49 U.S.C. § 1552(h)(1). The Airline's argument that not all "protected employees" are protected by the hiring preference is not based on the language of the duty to hire, but on the language used to define those eligible for monetary assistance:

The Secretary of Labor shall, subject to such amounts as are provided in appropriation Acts, make monthly assistance payments ... to each individual who the Secretary finds, upon application, to be an eligible protected employee. An eligible protected employee shall be a protected employee who on account of a qualifying dislocation (A) has been deprived of employment, or (B) has been adversely affected with respect to compensation.

49 U.S.C. § 1552(a) (emphasis added). Congress defined a "qualifying dislocation" as a bankruptcy or major contraction of an air carrier occurring during the first ten calendar years after deregulation "the major cause of which is the change in regulatory structure provided by the Airline Deregulation Act of 1978, as determined by the Civil Aeronautics Board." 49 U.S.C. § 1552(h)(2).¹ Thus, displaced employees were required to trace their unemployment to a CAB determination that they were victims of deregulation in order to qualify for monetary assistance as a "eligible protected employee."

In defining the beneficiaries of the duty to hire program, however, Congress did not use the term "eligible protected employee," but provided that

Each person who is a protected employee of an air carrier ... who is furloughed or otherwise terminated by such an air carrier (other than for cause) prior to the last day of the 10-year period beginning on October 24, 1978, shall have first right of hire, regardless of age, in his occupational specialty, by any other air carrier hiring additional employees ...

49 U.S.C. § 1552(d)(1) (emphasis added).

The Court cannot ignore this difference in terminology or dismiss it as accident or mistake. Congress used different terms, separately and carefully defined to describe the employees eligible for these two programs.² Only those who are seeking monetary assistance from the government are required to make the rigorous showing that deregulation was the cause of their termination. "Protected employees" who cannot make this showing are still "protected" by the duty to hire provision.

This interpretation is consistent with the legislative history of § 43(d). The original version of the Senate Bill limited the duty to hire to protected employees who were "furloughed or otherwise terminated ... on account of a qualifying dislocation...." S. 2493, 95th Cong., 2d Sess., § 22(d)(2) (1978). The House Bill was more generous, requiring that before carriers could exercise authority under the new act, the Secretary of Labor had to certify that the interests of airline employees who may be affected have been "adequately protected by fair and equitable arrangements providing levels of protection no less beneficial and protective of such interests than those established pursuant" to the employee protection provisions of the Interstate Commerce and Rail Passenger Service Act.³ H.R. 12611, 95th Cong., 2d Sess., § 32 (1978). As is often the case, the Conference Committee produced a compromise. The Committee adopted almost all of the Senate Bill but deleted the "on account of a qualifying termination" requirement from the duty to hire provision. H.R.Rep. No. 95-1779, 95th Cong., 2d Sess. 105 (1978), U.S.Code Cong. & Admin.News 1978, p. 3737. Congress enacted this version, retaining the causation requirement for monthly assistance payments but extending the duty to hire to all protected employees terminated or furloughed within the ten year period after deregulation.

Nevertheless, the Airlines argue that even if a "qualifying dislocation" is not required, the Secretary should have considered whether some showing that the employees were terminated due to deregulation should still be required before they can invoke the duty to hire. There is no support in the statute or its legislative history for this position. The duty to hire in § 43(d) is without qualification and there is no indication that Congress delegated any authority to the Department of Labor to limit eligibility or create a system to determine which...