Tice v. American Airlines, Inc.

• Decision Date: 30 April 2002
• Docket Number: No. 01-3513.,01-3513.
• Citation: 288 F.3d 313
• Parties: Robert H. TICE, et al., Plaintiffs-Appellants, v. AMERICAN AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

288 F.3d 313

Robert H. TICE, et al., Plaintiffs-Appellants, v. AMERICAN AIRLINES, INC., Defendant-Appellee.

No. 01-3513.

United States Court of Appeals, Seventh Circuit.

Argued February 22, 2002.

Decided April 30, 2002.

Alan M. Serwer (argued), Bell, Boyd & LLoyd, Chicago, IL, for Plaintiffs-Appellants.

R. Gangemi, Jr. (argued), Winston & Strawn, Chicago, IL, for Defendant-Appellee.

Dori K. Bernstein (argued), EEOC, Office of the Gen. Counsel, Washington, DC, for Amicus Curiae EEOC.

Gary S. Kaplan, Seyfarth Shaw, Chicago, IL, for Amici Curiae Airline Industrial Relations Conference, Inc., and Air Transport Ass'n of America, Inc.

Before POSNER, KANNE, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

Arbitral boards established pursuant to the Railway Labor Act have exclusive jurisdiction to resolve disputes over the application of collective bargaining agreements in the railroad and airline industries. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252-53, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). The plaintiffs in this suit under the Age Discrimination in Employment Act deny that their dispute with American Airlines is over the meaning of the collective bargaining agreement between their union and the airline, but the district judge disagreed and dismissed the suit for want of subject-matter jurisdiction.

A valid regulation of the Federal Aviation Administration forbids a person to pilot a commercial aircraft after he reaches his sixtieth birthday. The plaintiffs are 14 American Airlines pilots who, having reached age 60 and thus become disqualified to pilot the airline's planes, claim the right to downgrade to the position of flight officer. Some of the airline's aircraft (rapidly being phased out) have three pilots in the cockpit — the captain, the first officer (copilot), and the flight officer. The flight officer must (with immaterial exceptions) be a pilot, but his duties do not involve flying the airplane, but rather monitoring the fuel, electrical, and other systems of the plane. Apparently unique among U.S. airlines, American refuses to permit a captain — all the plaintiffs were captains before becoming disqualified to serve as captains or first officers — who has been disqualified as a pilot to downgrade to flight officer; instead he must retire. It is this refusal that the plaintiffs challenge as age discrimination.

The airline claims that it treats all disqualified captains alike. A captain disqualified from serving as a captain or first officer because he has reached the age of 60 is treated the same as a younger captain disqualified because of ill health or because he failed the airline's proficiency test for pilots. If so, still this would not be a defense if the airline had unjustifiably decreed disqualification based on age, but that is not what it has done; it has merely complied with a valid government regulation. If it allowed captains disqualified by reason of age to become flight officers, but not captains disqualified for other reasons, it would be discriminating in favor of captains disqualified by reason of age, and the age discrimination law does not require employers to discriminate against the young. Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1217 (7th Cir.1985); EEOC v. Sperry Corp., 852 F.2d 503, 509 (10th Cir.1988); Parcinski v. Outlet Co., 673 F.2d 34, 37 (2d Cir.1982); Williams v. General Motors Corp., 656 F.2d 120, 129 and n. 13 (5th Cir.1981).

But the question for us is not whether there may be a violation of the age discrimination law lurking somewhere here; the airline's claim to treat all disqualified captains alike regardless of age is contested, and if it discriminates against captains disqualified by virtue of their age it is violating the law. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 120-21, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). Rather, the question is whether the plaintiffs' suit is dependent on their preferred interpretation of the agreement, in which event they should be in arbitration; and the answer to that question is yes. The only basis on which the plaintiffs could be entitled to bump existing holders of the flight-officer positions is if the collective bargaining agreement between the airline and its pilots' union entitles more senior pilots to bump less senior ones from those positions. In the absence of such a contractual provision, an employer would have no duty to give another job to an employee validly disqualified from holding his present job.

Not only the existence but also the scope of the entitlement depends on the collective bargaining agreement. One provision states that "all pilots are required to qualify in turn for the next higher pilot category." The airline contends that this provision establishes an "up or out" policy: a flight officer who cannot qualify for a higher position cannot remain in the cockpit. The plaintiffs qualify rather than reject this position, pointing to a provision which states that "a pilot will only be required to upgrade to captain one (1) time." They interpret this to mean that the fact that their age precludes them from ever upgrading from the flight officer's position which they seek to captain — that is, the fact that they are disqualified from ever again serving as a captain — cannot be used to disqualify them from the flight officer's job, because they complied with the "up or out" provision once and for all when they qualified as captains. Having climbed the ladder once, they can return to the lowest rung even though they can never reclimb. The airline argues, to the contrary, that the qualify-once provision is inapplicable to a case in which the pilot can never again serve as captain. It is one thing, the airline argues, for an eligible captain to bump a flight officer or first officer; when a captain's position opens up for him, he'll be entitled to it without having to requalify as a captain. It is another thing to let him bump the junior employee when he can never again become a captain.

This is a disagreement over the meaning of the collective bargaining agreement. The plaintiffs claim certain rights under it and the airline denies they have those rights. It is true as the plaintiffs point out that the agreement nowhere states in so many words that a permanently disqualified captain cannot bump a flight officer. But contracts, including collective bargaining agreements, frequently contain implied terms. Consolidated Rail Corp. v. Railway Labor Executives' Ass'n, 491 U.S. 299, 311, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989); Howard v. Weathers, 139 F.3d 553, 555 (7th Cir.1998); Chicago & North Western Transportation Co. v. Railway Labor Executives' Ass'n, 908 F.2d 144, 154 (7th Cir.1990) ("the practice had, in other words, ripened into a commitment, and thus had become a part of the collective bargaining agreement between the union and the railroad. Practices accompanied by assurances of continuation, express or implied but in either event likely to induce reliance, can create an implied obligation"); Brotherhood of Locomotive Engineers v. Springfield Terminal Ry., 210 F.3d 18, 33 (1st Cir.2000); Bonnell/Tredegar Industries, Inc. v. NLRB, 46 F.3d 339, 344 (4th Cir.1995). Whether a collective bargaining agreement contains such terms is a question of interpretation to be decided by arbitrators when arbitration is the designated method of resolving issues arising under the agreement. "Contracts have implied as well as express terms, and the authority of an arbitrator to interpret a collective bargaining contract includes the power to discover such terms." Ethyl Corp. v. United Steelworkers of America, AFL-CIO-CLC, 768 F.2d 180, 186 (7th Cir.1985); see Northern Indiana Public Service Co. v. United Steelworkers of America AFL-CIO-CLC, 243 F.3d 345, 348 (7th Cir.2001); International Brotherhood of Teamsters, Local Union No. 371 v. Logistics Support Group, 999 F.2d 227, 229-30 (7th Cir.1993); Dreis & Krump Mfg. Co. v. International Ass'n of Machinists & Aerospace Workers, District No. 8, 802 F.2d 247, 253 (7th Cir.1986).

The applicability of this principle to the present case is confirmed by reflecting on the character of the considerations that are relevant to determining these plaintiffs' rights under the collective bargaining agreement. The interpretation of a contract does not take place in a vacuum; it is not a purely semantic exercise; it has regard for the consequences of alternative interpretations, the parties being assumed to have intended something sensible by their contract. E.g., Rhode Island Charities Trust v. Engelhard Corp., 267 F.3d 3, 7 (1st Cir.2001). That is why we have said that "to interpret a contract or other document, it is not enough to have a command of the grammar, syntax, and vocabulary of the language in which the document is written. One must know something about the practical as well as the purely verbal context of the language to be interpreted." Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 860 (7th Cir.2002). American argues that the flight officer's job is a kind of apprenticeship for actually flying the airplane, so it wants the job filled by pilots eligible to progress to the flying positions. True, an eligible captain who downgrades is not an apprentice. Still, since his eligibility makes it likely that he will someday again be flying the...