NEWSLETTER

A federal court in New York recently ruled in favor of American Airlines on claims by a group of flight attendants that it violated the Railway Labor Act (RLA) when it obtained concessions from them in an effort to avoid bankruptcy following the September 11, 2001 terrorist attacks. See Marcoux v. American Airlines (July 22, 2008). The flight attendants filed a class action lawsuit claiming the airline violated Sections 152 Seventh, 152 Fourth and 152 First of the RLA. The lawsuit also alleged breach of the duty of fair representation (DFR) against the Association of Professional Flight Attendants (APFA) and against American. The court granted summary judgment on all the claims.

Background

After the September 11 attacks, American’s financial condition declined and it sought concessions from the APFA, as well as its other unions, in an effort to avoid bankruptcy. American and APFA ultimately reached a tentative restructuring agreement (RPA), which APFA presented to the flight attendants for ratification. To meet American’s deadline for ratification to avoid filing for bankruptcy, the voting was conducted over a 15-day period by telephone instead of over a 30-day period by mail as required by the union’s constitution.

Although the RPA was not ratified by the deadline, American agreed to a one-day extension of the voting period and the RPA was ratified. During the voting period, the airline’s CEO made speeches to the union members to explain American’s financial situation and encourage them to vote for the RPA.

RLA Claims

Section 152 Seventh: The flight attendants claimed the RPA was formed in a manner inconsistent with the requirements of Section 152 Seventh of the RLA and that American violated Section 152 Seventh by complying with the RPA. Section 152 Seventh requires the parties to a collective bargaining agreement (CBA) to maintain, during the pendency of any dispute arising under their CBA, the working conditions in place prior to inception of the dispute.

The court held that individual employees do not have a right to sue under Section 152 Seventh. According to the court, this provision is designed to foster agreement between the employer and the employees’ certified representative. Permitting individual employees to invalidate settlements previously negotiated by their certified representative and designed to prevent bankruptcy would undermine the purposes of Section 152 Seventh.

Section 152 First: The flight attendants also claimed that the airline violated Section 152 First when it did not revert back to their 2001 CBA. Section 152 First requires all carriers, their officers and agents to “exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes” to avoid any interruption in commerce. The court held that this provision is directed to the relationship between the employer and the employees’ authorized representative. Accordingly, the flight attendants had no right to bring a suit under this provision in an effort to invalidate the agreements negotiated by their union.

Section 152 Fourth: The flight attendants also claimed that American violated Section 152 Fourth by interfering with the RPA ratification process. This Section makes it “unlawful for any carrier to interfere in any way with the organization of its employees, or to use the funds of the carrier in maintaining or assisting or contributing to any labor organization…”

The court ruled in favor of American on this clam as well, finding that the flight attendants failed to show that the airline was motivated by antiunion animus in exerting economic pressure on the APFA to obtain the RPA and a subsequent letter of agreement (LOA). The court held that the economic pressures imposed by the airline resulted from its “dire economic predicament” to which APFA responded with independence of judgment. The court also held that the fact that American did not disclose information relating to retirement provisions for certain high-ranking company officials prior to the RPA ratification process was not evidence of the airline’s attempt to undermine APFA’s ability to represent the flight attendants. The court held that the flight attendants “failed to show that the integrity of the Union and its ability to bargain on the employees’ behalf were compromised by Company conduct.”

DFR Claims

The court also ruled in favor of APFA and American on the flight attendants’ DFR claims. Utilizing a “highly deferential” standard of review, the court held that APFA’s conduct during the negotiation and ratification of the RPA and LOA were rational and not arbitrary. Since employer liability on a DFR theory is derivative of union liability, the court dismissed the DFR claims against American as well

The Fifth Circuit recently held that a flight attendant’s sex discrimination claims under Title VII and disability discrimination claims under the Americans with Disabilities Act (ADA) are not minor disputes subject to the mandatory arbitration provisions of the Railway Labor Act (RLA). See Carmona v. Southwest Airlines Co. (5th Cir. July 16, 2008). In Carmona, the flight attendant was discharged for excessive absences in accordance with the attendance policy set forth in the collective bargaining agreement (CBA) covering his employment at Southwest. The flight attendant appealed his discharge in accordance with the CBA’s grievance procedure; however, the Board of the Adjustment upheld his discharge.

Subsequently, the flight attendant sued Southwest in federal court, claiming discrimination in violation of Title VII and the ADA. The trial court dismissed the flight attendant’s claims, finding that they were precluded by the RLA. The Fifth Circuit reversed this decision, finding that the discrimination claims do not require an interpretation of the collective bargaining agreement and, therefore, are not minor disputes under the RLA.

In determining that the flight attendant’s claims are not minor disputes, the Fifth Circuit noted that “the ‘distinguishing feature’ of a minor dispute under the RLA is that ‘the dispute may be conclusively resolved by interpreting’ the CBA.” The court held that where, as in this case, provisions of the CBA are relevant to, but not dispositive of, the resolution of an employee’s claims, the claims do not constitute a minor dispute.

The court noted that the flight attendant alleged the CBA procedures were applied in a discriminatory manner, not that CBA procedures were fundamentally discriminatory. “Thus, consideration of the CBA as applied to Title VII and the ADA – not interpretation of the CBA itself – is what is required to resolve Carmona’s claims.”

Calling it a “close case,” the Tenth Circuit recently held that a former employee of Alaska Airlines, who was discharged shortly after being asked about his plans for retirement, should be permitted to proceed with his age discrimination lawsuit. See Maughan v. Alaska Airlines, Inc. (June 12, 2008).

Maughan was employed in Alaska’s Quality Control (QC) department and sought, but didn’t receive, a transfer to the Quality Assurance (QA) department. Maughan claims that his supervisor, Robinson, told him that “word on the street” was he did not get the position because he told the interview panel he planned to be retired in five years. Maughan claims that Robinson later asked him if he really planned to retire in a year and that Maughen confirmed that was his plan. The next day, Robinson gave Maughan a performance evaluation indicating that Maughan failed to meet expectations in certain areas. Maughan was discharged a few weeks later.

When Maughan was told of his discharge, he complained to Alaska’s human resources manager that he had been discriminated against and harassed because of his age; however, the airline did not investigate these allegations. Subsequently, Maughan sued Alaska, claiming he was discharged because of his age in violation of the Age Discrimination in Employment Act (ADEA). The trial court ruled in favor of Alaska, finding that Maughan failed to show that Alaska’s legitimate, nondiscriminatory reason for his discharge – poor performance – was pretext for discrimination.

Acknowledging that this is a “close case,” the Tenth Circuit reversed the trial court’s decision, noting there are “several pieces of evidence favorable to Maughan” that could lead to a finding of pretext. In addition to Robinson’s comments about Maughan’s retirement plans and his alleged change in attitude toward Maughan, there were disputes over evidence supporting the reason for Maughan’s discharge.

The court also noted that Maughan did not merely claim that Robinson’s criticism of his performance was unreasonable or based on mistakes; instead he challenged the objective facts upon which Robinson claimed to have relied in discharging him. Further, the court found evidence that Alaska acted contrary to its written antiharassment and discrimination policy by failing to investigate Maughan’s discrimination and harassment complaint.

The court acknowledged that the evidence undermining Alaska’s proffered reason for the termination is not greatly persuasive. However, “even if Maughan has created ‘only a weak issue of fact as to whether the employer’s reason was untrue,’ Alaska has not presented the corollary ‘abundant and uncontroverted independent evidence that no discrimination had occurred,’” that would entitle it to judgment as a matter of law.

The National Mediation Board (NMB) has issued a notice stating that it intends to revise certain sections of its manual used in representation cases. According to the notice, which is published on the Board’s web site at http://www.nmb.gov, airlines and railroads, labor organizations and other interested parties have until September 3, 2008 to submit comments on the proposed revisions.

Specifically, the NMB proposes revising and/or clarifying the following sections of its representation manual: 2.4, 3.3, 8.2, 9.2, 9.205, 13.304-2 and 19.7. Following are highlights of the proposed revisions:

• Section 2.4 would be amended to state that a carrier’s failure to provide a substantially accurate list of potential eligible voters may be considered interference with the NMB’s election process and therefore grounds for setting aside the election;
• Section 3.3 would be amended to add language clearly stating that the NMB will not accept applications or additional authorization cards from intervenors after 4:00 pm on the day an applicable list of potential eligible voters and signature samples are delivered.
• Section 8.2 would be amended to provide examples of substantive evidence that will be considered in resolving challenges and objections to voter eligibility.
• Section 9.2 would be amended to clarify that employees must work regularly and continuously in the craft or class on and after the cut-off date to be eligible to vote. The NMB also proposes adding language clarifying when a trainee will be considered eligible.
• Section 9.205 would be amended to clarify that employees on authorized leaves of absence are eligible if they retain an employer-employee relationship and have a reasonable expectation of returning to work.
• Section 13.304-2 would be amended to include a provision stating that a vote for a political candidate or other widely-known individual where it is evident that the voter does not intend for that individual to represent the craft or class for the purposes of bargaining under the RLA will be considered a void vote.
• A new Section 19.701 would be added, which will state that “where there is a certified representative of one of the affected carriers but no certified representative on the other(s), the Board will exercise its jurisdiction and extend the certification only where there is more than a substantial majority, as determined by the Board. Authorization cards may be used to supplement the showing of interest necessary to trigger an election; they may not be used towards getting a certification extended. Nothing, however, in this Section precludes certification by check of authorizations as governed by Manual Section 7.0 or the opportunity for voluntary recognition.”

The federal Department of Transportation (DOT) has announced final regulations requiring transportation employees in safety sensitive positions (including the aviation industry) who previously tested positive for a prohibited drug to give their urine specimens under observation. See 73 Fed. Reg. No. 123. The regulation was published June 25, 2008 and takes effect August 25, 2008

Currently, only transportation employees in safety sensitive positions who are suspected of tampering with their specimens are required to provide specimens under observation; however, the final regulation extends this requirement to those who previously tested positive for a prohibited drug.

The direct observation rule requires the observer to check for devices designed to defeat the drug test. According to the DOT, “[c]hecking for devices prior to observed collections is the most effective way to ensure the integrity of the testing process while providing individual privacy as much as practicable.”

Thus, the regulation requires that the observer request the employee raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to mid-thigh to show the observer, by turning around, that they do not have a prosthetic device. After the observer has determined that the employee does not have such a device, the observer may permit the employee to return clothing to its proper position for observed collection.

Follow-up and return-to-duty tests must be conducted using direct observation procedures.

Great Lakes Airlines
Application of an individual to represent Aircraft Mechanics, Aircraft Inspectors, Maintenance Control, Utility, and Aircraft Repairman dismissed. Dismissal July 10, 2008.

Air Serv Corporation
RLA jurisdiction confirmed July 9, 2008.

Liat (1974) Ltd.
Petition of USWA to represent Customer Service Agents withdrawn. Dismissal July 8, 2008.

Business Representation International Inc.
Petition of TWU to represent Passenger Service Employees dismissed for insufficient showing of interest. Dismissal July 8, 2008.

Swissport USA Inc.
RLA jurisdiction confirmed July 2, 2008.

Delta Air Lines
AFA lost an election to represent Flight Attendants. Out of 13,380 eligible employees, there were 5,253 votes for AFA, 53 votes for other and 16 void votes. Dismissal May 29, 2008.