O'Neill v. Air Line Pilots Ass'n, Intern.

• Decision Date: 31 October 1989
• Docket Number: No. 88-2848,88-2848
• Citation: 886 F.2d 1438
• Parties: 132 L.R.R.M. (BNA) 2876, 58 USLW 2328, 113 Lab.Cas. P 11,638 Joseph E. O'NEILL, et al., Plaintiffs-Appellants, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1438

886 F.2d 1438

132 L.R.R.M. (BNA) 2876, 58 USLW 2328,

113 Lab.Cas. P 11,638

Joseph E. O'NEILL, et al., Plaintiffs-Appellants, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, et al.,

Defendants-Appellees.

No. 88-2848.

United States Court of Appeals, Fifth Circuit.

Oct. 31, 1989.

Marty Harper, Allen R. Clarke, Lewis & Roca, Phoenix, Ariz., William E. Schweinle, Jr., Reginald H. Wood, Stubberman, McRae, Sealy, Laughlin & Browder, Houston, Tex., for plaintiffs-appellants.

Harold G. Levison, Mudge, Rose, Guthrie, Alexander & Ferdon, New York City, John A. Irvine, Thelen, Marrin, Johnson & Bridges, Houston, Tex., for defendants-appellees.

Appeals from the United States District Court for the Southern District of Texas.

Before POLITZ, DAVIS and DUHE, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Joseph O'Neill, et al., (the O'Neill Group or the pilots) appeal from the district court's grant of summary judgment dismissing their action against the Air Line Pilots Association (ALPA). We vacate the district court's dismissal of the pilots' unfair representation claim, and remand the case to the district court for further proceedings on this count. We affirm the district court's dismissal of the pilots' claim for relief under section 101(a)(1) of the Labor-Management Reporting and Disclosure Act (LMRDA).

I.

This dispute arises out of the settlement of a two-year strike by ALPA against Continental Air Lines (CAL). The O'Neill Group were ALPA members employed as pilots by CAL, and participated in the strike against the airline.

ALPA has been the authorized and exclusive bargaining representative for the airline pilots employed by Continental Air Lines and its corporate predecessors since the 1940s. CAL and ALPA adopted their most recent collective bargaining agreement in 1982. In 1983, CAL waged a campaign to win substantial financial concessions from its employee groups, including CAL pilots. CAL and the pilots' union ultimately failed to reach a concession agreement and in September 1983, CAL filed a petition for reorganization under Chapter 11 of the Bankruptcy Code, 11 U.S.C. Sec. 1101, et seq. CAL then repudiated its existing collective bargaining agreements with ALPA and its other unions, and unilaterally implemented its previously requested concessions as "emergency work rules," including cuts of more than fifty percent in pilots' salaries and benefits.

In October 1983, ALPA initiated a lawful pilot strike in response to CAL's rejection of its labor contract, and filed suit under the Railway Labor Act, 45 U.S.C. Sec. 151, et seq. (RLA), to enforce the collective bargaining provisions. The strike lasted for more than two years, during which time CAL continued to operate by employing cross-overs and hiring large numbers of permanent replacement pilots. The number of working pilots grew; by August 1985, working pilots at CAL exceeded the number of strikers 1,600 to 1,000.

In June 1984, after extended litigation, the bankruptcy court approved CAL's rejection of the ALPA-CAL collective bargaining agreement, and ordered ALPA and CAL to engage in collective bargaining over the formation of a new labor contract. CAL and ALPA met on and off until late August 1985, when CAL notified ALPA that it was withdrawing recognition of ALPA as the authorized collective bargaining representative of the CAL pilots. ALPA filed suit in the Southern District of Texas in September 1985, challenging CAL's unilateral withdrawal of recognition and its refusal to engage in further negotiations.

As part of its continuing process of filling pilot vacancies, on September 9, 1985, CAL posted "Supplementary Base Vacancy Bid 1985-5." CAL historically provided for future pilot training and staffing needs through its "System Bid" process. Under CAL's System Bid procedure, any pilot interested in a posted vacancy could submit a bid specifying the pilot's preferred positions based on status (i.e., Captain, First Officer, Second Officer), base (city), and equipment type. Once pilots submitted their bids to CAL, vacant positions were allocated solely according to seniority, determined by the date a pilot first flew for Continental. Promotions to vacancies on new or different equipment from which a pilot had been trained required additional training of pilots before the vacancies were actually filled. CAL's bids were posted well in advance of these vacancies in order to schedule this training while maintaining current service. The 85-5 bid announced vacancies to be filled in 1986 for 441 future Captain and First Officer positions and an undetermined number of Second Officer vacancies. All participating pilots were required to submit their bids by September 18, 1985.

Apparently concerned by the number of future vacancies to be awarded under the 85-5 bid, ALPA's Master Executive Council for the CAL pilots (CAL MEC or the MEC), ¹ authorized striking pilots to submit bids while also continuing the strike effort. Confusion over the bids tendered by several hundred strikers and questions concerning the legitimacy of their offers to return to work led CAL to challenge the strikers' bids. In late September 1985, the CAL MEC voted to continue the strike.

During October 1985, CAL and a pilots' committee, drawn from ALPA leadership and the CAL MEC, conducted negotiations under the supervision of the bankruptcy court that resulted in an October 31, 1985 consent agreement termed the "Order and Award." This order and award entered by the bankruptcy court established terms for settling both the ALPA strike and the outstanding litigation between the parties. ALPA consented to entry of the order and award without notice to or ratification by the CAL pilots or the CAL MEC.

The October 31, 1985 order and award altered CAL's standard bidding system for the 85-5 bid and the recall of striking pilots. The agreement established three options for strikers. Striking pilots who wished to return to work were required to choose either option 1 or option 3. Option 1 required strikers to waive all claims against CAL (including claims in bankruptcy for unpaid wages, and damages against CAL for abrogation of the collective bargaining agreement). In return CAL agreed to call them back to work according to "modified" seniority provisions. The relevant "transitional" modifications to seniority order and bid procedures included: (1) current working pilots (nonstrikers) were awarded the first 100 Captain positions in the 85-5 bid. These working pilots were generally ineligible for these positions under an integrated seniority list that included strikers and nonstrikers and standard bidding procedures; (2) the next seventy Captain positions were to be awarded to the seventy most senior returning strikers who waived their claims against CAL, all of whom had been Captains before the strike. In filling these seventy vacancies, CAL had the right to assign these returning strikers to the base and equipment of CAL's choice. Additionally, these returning strikers were required to fly as First Officers for four months before assuming the Captain vacancies; (3) thereafter returning strikers would assume Captain positions on a 1:1 ratio with working pilots, essentially "dovetailing" a striker seniority list with a seniority list for replacement pilots.

The working pilots, following usual bid procedures, were awarded particular vacancies under the 85-5 bid on seniority according to their registered preferences for rank, base and equipment; although CAL recalled former strikers by seniority among strikers, CAL assigned each returning striker to CAL's choice of rank, base or equipment regardless of the pilots' preferences. These provisions had the effect of advancing many nonstriking pilots over more senior striking pilots, and awarding to nonstrikers the majority of the 85-5 Captain vacancies, the most desirable positions. Returning strikers, although recalled in seniority order, were required to accept the position offered by CAL, which could be a rank well below what the pilot was entitled to under seniority bidding procedures. Where a former striker upon recall was assigned initially to a First or Second Officer position, CAL had the right to assign the pilot to the base and equipment of his first Captain position as well. ²

The Agreement provided for filling Captain vacancies on a 1:1 ratio between strikers and nonstrikers until at least October 1, 1988. The practical effect of these "transitional" provisions was foreseeably much longer. For example, equipment freezes restricted the ability of pilots to change types of aircraft for varying periods of time after being trained on them (typically two years).

Option 3 permitted pilots to keep their claims against CAL, but provided that they could not return to work nor become Captains until after the Option 1 pilots. Option 3 pilots were to be recalled in the order in which they tendered their unconditional offers to return to work rather than in seniority order. CAL retained the same right to assign the Option 3 pilots to vacancies as described above for Option 1 pilots.

Option 2 covered strikers who elected not to return to work for CAL. CAL agreed to pay these pilots severance pay of $4,000 for each year of service, up to a total dollar amount of $2.6 million. In return the strikers relinquished their right to recall, and released all other claims against CAL.

II.

The O'Neill Group is a certified class comprised of approximately 1,400 past and present CAL pilots who went on strike on October 1, 1983 and remained on strike through October 31, 1985, the date the strike ended. The O'Neill Group brought suit against ALPA, the CAL MEC, and certain individual negotiators in April 1986 for their roles in the strike settlement. In its complaint as amended, the O'Neill Group sought recovery on four counts. Count 1 alleged a breach of the duty of fair representation which ALPA and various ALPA officers owed plaintiffs under the...