Gullickson v. Southwest Airlines Pilots' Ass'n, 95-4155

• Decision Date: 02 July 1996
• Docket Number: No. 95-4155,95-4155
• Citation: 87 F.3d 1176
• Parties: 156 L.R.R.M. (BNA) 2480 Jeff GULLICKSON, Thomas A. Mosher, Charles M. Motz, Jr., Michael Pratt, Gerald Puckett, Gary Joseph Sallee, Gary Winn, Individually, and as representatives of a class of all Morris Air Pilots; Corey Holberg and Robert R. May, II., Plaintiffs-Appellants, v. SOUTHWEST AIRLINES PILOTS' ASSOCIATION, Southwest Airlines Company and Morris Air Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1176

87 F.3d 1176

156 L.R.R.M. (BNA) 2480

Jeff GULLICKSON, Thomas A. Mosher, Charles M. Motz, Jr. Michael Pratt, Gerald Puckett, Gary Joseph Sallee, Gary Winn, Individually, and as representatives of a class of all Morris Air Pilots; Corey Holberg and Robert R. May, II Plaintiffs-Appellants, v. SOUTHWEST AIRLINES PILOTS' ASSOCIATION, Southwest Airlines Company and Morris Air Corporation, Defendants-Appellees.

No. 95-4155.

United States Court of Appeals Tenth Circuit.

July 2, 1996.

Rehearing Denied Sept. 6, 1996.

Appeal from the United States District Court for the District of Utah (D.C. No. 94-CV-660); David K. Winder, Judge.

Daniel M. Katz (Louise P. Zanar with him, on the brief), Katz & Ranzman, P.C., Washington, D.C., for Plaintiffs-Appellants.

J. Joe Harris, Matthews & Branscomb, San Antonio, TX, and Marvin Menaker, Dallas, TX, for Defendants-Appellees.

Before HENRY, MURPHY, and LIVELY ^*, Circuit Judges.

MURPHY, Circuit Judge.

After careful review of the record, we adopt the analysis of the district court's Memorandum Decision and Order Denying Plaintiffs' Motion for Partial Summary Judgment, Granting in Part Defendants' Motions for Summary Judgment, and Denying Plaintiffs' Motion for Class Certification. We therefore AFFIRM for substantially the reasons given by the district court and ORDER the district court's memorandum decision and order to be published.

ATTACHMENT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

Jeff Gullickson, et al., Plaintiffs,

v.

Southwest Airlines Pilots' Association, Southwest Airlines

Company, and Morris Air Corporation, Defendants.

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS' MOTION FOR

PARTIAL SUMMARY JUDGMENT, GRANTING IN PART

DEFENDANTS' MOTIONS FOR SUMMARY

JUDGMENT, AND DENYING

PLAINTIFFS' MOTION

FOR CLASS

CERTIFICATION

Civil No. 94-C-660W

WINDER, Chief Judge.

I. INTRODUCTION

This matter is before the court on three separate motions for summary judgment: (1) plaintiffs Jeff Gullickson, Thomas A. Mosher, Charles M. Motz, Jr., Michael Pratt, Gerald Puckett, Gary Joseph Sallee, Gary Winn, Robert R. May II, and Corey Holberg's ("Plaintiffs") motion for partial summary judgment ¹ as to liability on claims one, two, and three of the second amended complaint ("Complaint"); ² (2) defendant Southwest Airlines Pilots' Association's ("SWAPA") motion for summary judgment on claims one, two, and three of the Complaint, and (3) defendants Southwest Airlines Company's ("Southwest") and Morris Air Corporation's ("Morris") motion for summary judgment on claims one and four ³ of the Complaint. A hearing on these motions was held July 19, 1995. Daniel M. Katz represented Plaintiffs. J. Joe Harris and David A. Anderson represented Southwest and Morris. SWAPA was represented by Marvin Menaker and Arthur F. Sandack. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to the various motions. Now being fully advised, the court enters the following memorandum decision and order.

II. BACKGROUND

In December of 1992, defendant Morris Air Corporation began operations after obtaining a Part 121 operating certificate. ⁴ See Memorandum From SWAPA to SWAPA Members at p. 1 (Dec. 22, 1993) [hereinafter December 22 Memo.] (attached as Exhibit 1 to Plaintiffs' Memorandum in Support of Their Motion for Partial Summary Judgment, Case No. 94-C-660W (Mar. 13, 1995) [hereinafter Plaintiffs' Summary Judgment Memo.]). One year later, Morris decided to sell its operations. The result of that decision was that on December 31, 1993, defendant Southwest acquired all Morris stock in exchange for 3.6 million newly issued shares of Southwest's common stock. At the time of the sale Morris employed 202 pilots and Southwest employed 1487 pilots. It is undisputed that Morris was sold without labor protective agreements, that Morris pilots were not under contract, and that Morris pilots had no agreements with Morris to protect their seniority.

On about December 10, 1993, SWAPA learned of the pending takeover of Morris by Southwest. See Declaration of Gary Kerans at p 3 [hereinafter Kerans Dec.] (attached as Exhibit 2 to Southwest Airlines Pilots' Association's Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment, Case No. 94-C-660W (May 4, 1995) [hereinafter SWAPA's Response]). At that time, Southwest requested "prompt negotiations for an amendment to the collective bargaining agreement" with SWAPA ("SWAPA-Southwest CBA"). Id. In particular, Southwest sought a waiver of the scope agreement provisions in the SWAPA-Southwest CBA. ⁵

Morris pilots were not members of SWAPA in December of 1993 and January of 1994. See Oral Deposition of Thomas Mosher at p. 54 (Jan. 31, 1995) [hereinafter Mosher Depo.] (attached as Exhibit B to Appendix of Summary Judgment Evidence of Southwest's and Morris' Motion for Summary Judgment, Case No. 94-C-660W (May 8, 1995)). Nevertheless, prior to engaging in the requested negotiations with Southwest, SWAPA wished to meet with a representative group of Morris pilots. See Kerans Dec. at p 4. Consequently, in mid-December of 1993, a group comprised of several Morris pilots--Ray Plummer, David Wabel, Chip Beedle, Tim Murphy, and plaintiff Thomas A. Mosher ("Mosher") (collectively "Morris Committee")--was formed ⁶ to represent the interests of Morris pilots as they related to the acquisition. Shortly thereafter, on December 16, 1993, the Morris Committee met with representatives from SWAPA ⁷ ("SWAPA Committee") for more than eight hours in Salt Lake City to discuss issues related to the Morris pilots and the acquisition. ⁸ At the meeting, the SWAPA Committee informed the Morris Committee that they wanted to know their concerns and priorities, and stated that they would address those as best they could. See Mosher Depo. at p. 42. Pursuant to this request, the Morris Committee presented the SWAPA Committee with a previously-prepared, prioritized list entitled "Job Security Issues" ⁹ which enumerated seven issues which they wished to see addressed. ¹⁰

It is undisputed that the Morris Committee's number one goal was guaranteed employment at Southwest for all Morris pilots. ¹¹ Id. at p. 34. Regarding the December 16 meeting and the Morris Committee, the SWAPA Committee stated that its members "were professional, knowledgeable, and were consistent in putting the needs of their pilot group ahead of their own concerns. While discussions occasionally became heated, the maturity and experience of this group made it possible to transact business under an almost impossible set of time constraints." See December 22 Memo. at p. 4.

After the December 16 meeting, SWAPA representatives met with Southwest. ¹² The result of those meetings was the Letter of Agreement, which contains a scope waiver clause ¹³ as well as the seniority provisions about which Plaintiffs now complain.

SWAPA sent all of its members a copy of the December 22 Memorandum and an unexecuted copy of the Letter of Agreement. See Plaintiffs' Summary Judgment Memo. at p. 8. This memorandum provided "questions and answers concerning the acquisition of Morris Air and the Letter of Agreement." Id. Included among the numerous questions posed and answered in the December 22 Memorandum were: (1) "Who did SWAPA deal with from the Morris Air pilots?" (2) "What were the major concerns of the Morris pilots?" ¹⁴ (3) "How did the Company propose to '... offer employment to a great majority of [Morris'] permanent employees?' " ¹⁵ (4) "Why are the Morris pilots not moved into the Southwest Airlines pilots seniority list ahead of some existing Southwest pilots based on past service/seniority at Morris?" and (5) "Where will the Morris Air pilots fit in on the Southwest Airlines pilots seniority list?" This last question was answered:

All 202 Morris pilots will go on the Southwest Airline pilot seniority list as of January 1, 1994, as though they were one large class of new hires. They will go on the list in order of seniority on the Morris list, and all pilots hired later at Southwest or Morris will go on the list by date of hire.

See December 22 Memo. at p. 5. This explanation correctly states the terms of the Letter of Agreement.

On December 22, 1993, the SWAPA Committee also briefed the Morris Committee in person as to the provisions of the tentative Letter of Agreement. In addition, on both December 22, 1993 and December 23, 1993, the SWAPA Committee held informational meetings in Salt Lake City. These meetings were advertised by bulletin, all Morris pilots were invited to attend, and the meetings were not restricted in any way. See Mosher Depo. at p. 49. Plaintiffs do not dispute that, at those meetings, the SWAPA Committee went over the entire tentative Letter of Agreement item by item and answered all questions from the floor. As plaintiff Mosher explained, "[i]t was a road show to explain the tenets of the agreement between Southwest and SWAPA." Id. at p. 50. In fact, Mosher attended one of the meetings primarily to answer questions about the Letter of Agreement, whose terms he was already familiar with. Id. at p. 74. Mosher also agrees that by the conclusion of the meetings, the Morris pilots would have known that they were not getting seat protection, and that they were not going to be captains. ¹⁶ See id. at p. 52. Regarding the general tenor of the meetings, Morris Committee member Chip Beedle stated:

[ ] When SWAPA presented the tentative Letter of Agreement at the meetings, they were well received. In one meeting of approximately 50 Morris Air pilots, it resulted in a standing ovation for the SWAPA committee. There were no harsh questions from the floor. There were no questions about seniority directed at the SWAPA committee.

[ ] The SWAPA committee then explained the process whereby this tentative agreement would be...