Oling v. Air Line Pilots Association

• Decision Date: 04 June 1965
• Docket Number: No. 14914.,14914.
• Citation: 346 F.2d 270
• Parties: John J. OLING, David J. Landry, on behalf of themselves and all other "second officers" in the employ of the United Air Lines, Inc. similarly situated, Plaintiffs-Appellants, v. AIR LINE PILOTS ASSOCIATION, and United Air Lines, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

346 F.2d 270 (1965)

John J. OLING, David J. Landry, on behalf of themselves and all other "second officers" in the employ of the United Air Lines, Inc. similarly situated, Plaintiffs-Appellants, v. AIR LINE PILOTS ASSOCIATION, and United Air Lines, Inc., Defendants-Appellees.

No. 14914.

United States Court of Appeals Seventh Circuit.

June 4, 1965.

O. David Zimring, I. J. Gromfine, H. Sternstein, William B. Peer, Chicago, Ill., for plaintiffs-appellants. Zimring, Gromfine & Sternstein, Washington, D. C., of counsel.

Stuart Bernstein, Chicago, Ill., Herbert A. Levy, New York City, Robert Plotkin, Arthur J. Kowitt, Chicago, Ill., for defendant, United Air Lines, Inc. Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Chicago, Ill., of counsel.

Before DUFFY, CASTLE and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

This action was brought for injunctive relief, alleging conduct by defendants in violation of the Railway Labor Act (45 U.S.C.A. § 151 et seq.), and for damages suffered by plaintiffs as a consequence thereof. On September 29, 1964, United Air Lines, Inc. (United) filed a motion, supported by affidavit and brief, to dismiss the complaint "for lack of jurisdiction and for failure of plaintiffs to state a claim upon which relief could be granted." Plaintiffs filed a brief and affidavits in opposition thereto. The District Court, by order dated November 16, 1964, granted defendants' motion to dismiss. From this order plaintiffs appeal.

Defendant United is a common carrier by air, engaged in interstate and foreign commerce, and is subject to the provisions of the Railway Labor Act (the Railway Act) and the Federal Aviation Act (49 U.S.C.A. § 1301 et seq.) (the Aviation Act). Defendant Air Line Pilots Association (ALPA) has at all times since May 31, 1961 been the certified bargaining representative at United for a single craft or class of employees, consisting of all members of the flight deck crew, including pilots, co-pilots and flight engineers. Prior to May 31, 1961, ALPA represented only the pilots and co-pilots at United, the flight engineers being separately represented by the UNA Chapter, Flight Engineers International Association, AFL-CIO (FEIA). On January 17, 1961, the National Mediation Board (NMB) decided that United's entire flight deck crew constituted a single craft or class for purposes of collective bargaining under the Railway Act.¹ Thereupon, ALPA was elected and later certified as the representative of that craft or class.

Plaintiffs Oling and Landry, on behalf of themselves and others similarly situated, allegedly represent a group of about 233 employees of United who are classed as "second officers," which classification refers to those flight deck crew members who perform the work of a "flight engineer." They comprise only a portion of such officers in the employ of United. Prior to 1961, the second officers had been represented for collective bargaining with United by FEIA in a bargaining unit confined to flight engineers. Plaintiffs had been members and officers of that union. ALPA had been the bargaining representative of the pilots (or "captains") and co-pilots (or "first officers"). A controversy had long existed between plaintiffs and ALPA as to the proper representation of the former, which culminated in the decision of NMB above noted. Thus, while as a result of that decision ALPA became the exclusive bargaining representative of all pilots, co-pilots and flight engineers in the employ of United, including plaintiffs, the latter refused to become members.

Capital Air Lines, Inc. (Capital) was also an air carrier subject to the provisions of the Railway Act and the Aviation Act. All of Capital's pilots, co-pilots and flight engineers were represented by ALPA for purposes of collective bargaining.

On August 11, 1960, United and Capital entered into an agreement by the terms of which Capital was to be merged into United. The agreement was subject to approval by the Civil Aeronautics Board (CAB or the Board), and upon execution of the agreement proceedings were commenced by United to obtain CAB approval. CAB, after hearing and pursuant to Sec. 408 of the Aviation Act (49 U.S.C.A. § 1378), entered an order dated April 3, 1961, approving the merger. This order was later affirmed by the Court of Appeals for the District of Columbia, Northwest Air Lines, Inc. et al. v. CAB et al., 112 U.S.App.D.C. 384, 303 F.2d 395.

Included in the terms of the merger order were a number of labor protective provisions ordinarily imposed by CAB upon a surviving carrier to protect employees against possible adverse effects resulting from the merger. Sec. 3 of such provisions (pertaining to seniority integration) provided:

"Insofar as the merger affects the seniority rights of the carriers\' employees, provisions shall be made for the integration of seniority lists in a fair and equitable manner, including, where applicable, agreement through collective bargaining between the carriers and the representatives of the employees affected. In the event of failure to agree, the dispute may be submitted by either party for adjustment in accordance with Section 13."

Section 13 provides that in the event of the failure of the parties to agree, the controversy "may be referred by either party, to an arbitration committee for consideration and determination." CAB reserved jurisdiction "to make such amendments, modifications and additions to the labor protective conditions imposed by paragraph 2(c) above as circumstances may require."

On June 1, 1961, the effective date of the merger, the employees of Capital became those of United, with ALPA as the duly certified bargaining unit. Following approval of the merger, ALPA began to implement its own established procedures for formulating an integrated seniority list for all flight deck personnel on the merged carrier. Pursuant to these procedures, representatives were chosen by ALPA from among the employees at each of the affected airlines for the purpose of compiling a single seniority list. Such representatives were unable to resolve their differences concerning seniority integration through negotiation and mediation, and the matters in question were submitted to arbitration in accordance with the procedure set forth in ALPA's Policy Manual.

Two arbitration proceedings were held, the first before an arbitration board headed by Harry Abrahams (the Abrahams arbitration) and the second before an arbitration board headed by David L. Cole (the Cole arbitration). United was not a party to either of these proceedings. The Abrahams award established a seniority integration list for the employees of United, including those employed by Capital previous to the merger, but the matter of integrating United flight engineers into the seniority list was left for determination by the Cole arbitration as ALPA had not been certified as their representative until subsequent to the commencement of the seniority integration procedures.

The award of the Cole arbitration, issued on August 24, 1962, resolved the seniority status of United's flight engineers, respecting their bidding rights to the pilot and co-pilot seats on United aircraft. The award stated:

"There are really three points of view presented at our hearings — (1) those of the Capital group, (2) the United pilots and second officers, and (3) that of a group of older flight engineers who have opposed affiliation with ALPA over the years, and who have opposed * * * all moves designed to blend the flight engineer and pilot functions into one category. These are referred to as the career flight engineers, some 244 in number."

The third group, referred to as the "career flight engineers," are those allegedly represented by plaintiffs in this proceeding. They presented their views to the Cole board through their representatives, who made opening and closing arguments and submitted written statements as evidence. In essence, their position was that they were entitled to full seniority credit as pilots for time spent as flight engineers when they had no seniority rights to piloting positions. The Cole board rejected their contentions and stated its reasons therefor, concluding as follows:

"For these reasons I shall fully protect the rights of the professional flight engineers to the third seat assignments, but I see no equitable basis for placing them on the pilot seniority list ahead of others already on the list or clearly entitled to be on list."

In the period following the arbitration proceedings plaintiffs protested to United that the awards as they related to seniority were unfair and should not be agreed to. However, in June 1963, United and ALPA executed an agreement embodying the awards. The complaint alleged that United accepted without challenge the resolution of the seniority issue.

On November 27, 1963, plaintiffs petitioned CAB to set aside and vacate the integrated seniority list and for other relief, in an effort to obtain their claimed additional seniority rights. They alleged that the Board's jurisdiction to grant such relief was predicated on Sec. 408 of the Aviation Act, upon the Board's own reservation of jurisdiction in the merger order to amend, modify or add to the labor protective provisions "as circumstances may require," and upon its labor protective provision directing the "integration of seniority lists in a fair and equitable manner * * *."

The petition prayed that CAB open the United-Capital merger case for a hearing respecting petitioners' claim that United and ALPA had failed to integrate seniority "in a fair and equitable manner"; vacate the integrated seniority list agreed to between United and ALPA on June 11, 1963; order United and ALPA to refrain from giving effect to that list, and require that petitioners be given the same credit toward pilot and co-pilot seats as all other members of the flight deck crew.

CAB, on April 24, 1964, gave consideration to the contentions of ...