Petition for Writ of Certiorari — Eastern Air Lines, Inc. v. Air Line Pilots Ass'n, International
Supreme Court brief1991
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JUN 12 399
a LFFICE OF TL Glen
IN THE ai
Supreme Court of the GAnited States
OCTOBER TERM, 1990
EASTERN AIR LINES, INC.,
Petitioner,
v.
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL
and EASTERN AIR LINES MASTER EXECUTIVE COUNCIL,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
RONALD B. NATALIE
JOSEPH L. MAnson, III*
DEAN R. BRENNER
VERNER, LIIPFERT, BERNHARD,
McPHERSON AND HAND, CHARTERED
901 15th Street, N.W.
Suite 700
Washington, D.C. 20005
(202) 371-6000
Attorneys for Petitioner
*Counsel of Record
QUESTION PRESENTED
Whether the Railway Labor Act limits a carrier’s
right to use self-help in the face of a crippling strike
by prohibiting the carrier from treating newly hired
replacements in training as permanent replacements
for strikers, where the offers of permanent employ-
ment accepted by the replacements were uncondi-
tional, and where the carrier could not have recruited
sufficient replacements to restore its operations with-
out making such unconditional offers of permanent
employment?
il
STATEMENT OF INTERESTED PERSONS
All parties to this case are named in the caption.
Pursuant to Rule 29.1 of the Rules of this Court,
petitioner Eastern Air Lines, Inc. (‘‘Eastern’’) hereby
states that its nominal parent company is Continental
Airlines Holdings, Inc. (‘“‘CAH’’). On April 19, 1990,
a Chapter 11 Bankruptcy Trustee, Martin R. Shugrue,
Jr., was appointed by the United States Bankruptcy
Court for the Southern District of New York to man-
age and control Eastern, replacing CAH (then known
as Texas Air Corporation) and its management. See
In re Ionosphere Clubs, Inc., 113 Bankr. 164 (Bankr.
S.D.N.Y. 1990).
Eastern’s only non-wholly owned subsidiary is Bar
Harbor Airways, Inc. (““BHA’’). Eastern owns 99.5%
of BHA’s outstanding stock.
ill
TABLE OF CONTENTS
Sg |)
STATEMENT OF INTERESTED PERSONS .............
IIE. shidsacnscslocbenseuvseisrtinevecscoccsveneescsees
STATEMENT OF THE CASE. ..........ccccccrcccccccccsscsceee
SS EE
i I IUD occ cvcceccnccescoscnccscscess
REASONS FOR GRANTING THE WRIT ..................
A. The Circuits Are Split On The Important
Issue Of Federal Labor Law Raised In
a ssautuinauduacseives
1. National II And United Support East-
aaa. ccnoneteuneinbuenusseons
2. The Eighth Circuit’s Trans World De-
cision Is Distinguishable And
I Sati bicandilichaakshdesnsiienitereusxebecseveees
. The Eleventh Circuit’s Decision Violates
The Precepts Set Forth By This Court In
Its Trans World Decision .................0.006-
1. Contrary To This Court’s Decision In
Trans World, The Eleventh Circuit
Makes Self-Help More Limited Under
The RLA Than The NLRA ...............
2. Contrary To This Court’s Decision In
Trans World, The Eleventh Circuit
Implies A New Limitation On The
RLA Right Of Self-Help ....................
18
iv
Table of Contents Continued
C The Eleventh Circuit’s Decision Destroys
An Airline’s Right Under Mackay To Con-
tinue rating During A Pilot Strike By
Hiring Permanent Replacements ............
D. The Eleventh Circuit’s Decision Ignores
The Hiring Needs Of Airlines Attempting
To Fulfill Their Statutory Obligation To
Operate During Pilot Strikes ..................
CONCLUSION .ncccccccoccsscsesccssccccscsssccesesensssncessceessosnces
APPENDICES
Appendix A, Opinion of the Court of Appeals
CERPOUUIE BD, LID) ccsecicrsscscceicctscccassnnssscesess
Appendix B, Order of the District Court
CIE Ba IUD eceitcnsiscnndtnsenidenenesessrcdonicores
Appendix C, Order of the Court of Appeals
on Petition(s) for Rehearing and Sugges-
tion(s) of Rehearing En Banc
GE SEG IEEE ddencesetcincenssscciecenncesévonceciosons
Appendix D, Judgment of the Court of
Appeals
(Issued as Mandate, March 26, 1991) ..........
Appendix E, Declaration of Alan C. Gibson
(attachments omitted) .............:cccceceeeeeeeeeeeeees
Appendix F, Declaration of Karen Averill
(QEUREREROIED GUIUOG) on cccccsesccscsctevccsescsceccceees
Appendix G, Railway Labor Act
NRE EIEE SE SEG SN eT eT ae
21
22
23
la
20a
3la
TABLE OF AUTHORITIES
Cases
Air Line Pilots Ass’n, Int’l v. Eastern Air Lines,
Inc., 863 F.2d 891 (D.C. Cir. 1988), reh’g en
banc denied, 863 F.2d 913 (D.C. Cir. 1989) ... 21
Atr Line Pilots Ass’n, Int’l v. United Air Lines,
Inc., 802 F.2d 886 (7th Cir. 1986), cert. denied,
SP Rie I I sactnictendndactendbaitisccciecsens, 12,13
Air Line Pilots Ass’n Int’l v. United Air Lines,
Inc., 616 F. Supp. 849 (N.D. Ill.), amending,
614 F. Supp. 1020 (N.D. Ill. 1985), rev’d in
part on other grounds, 802 F.2d 886 (7th Cir.
1986), cert. denied, 480 U.S. 946 (1987) .... 3,9,12,20
Anderson, Clayton & Co., 120 N.L.R.B. 1208
SITE shisdeiicietineivilasieahesdnnblasiiteshiiasdailesichiitiiiisnisensianoients 16,20
Belknap, Inc. v. Hale, 463 U.S. 491 (1983) ... 11,14,17,22
Brotherhood of R.R. Trainmen v. Jacksonville Ter-
minal, 394 U.S. 369 (1969) .....................0.s0000 15
Brotherhood of Ry. & S.S. Clerks v. Florida East
Coast Ry., 384 U.S. 238 (1966) ...................... 23
Burlington Northern R. Co. v. Maintenance of Way
Employees, 481 U.S. 429 (1987) ........cseeeeee 15
Eastern Air Lines, Inc. v. Air Line Pilots Ass’n,
Int'l, 710 F. Supp 1342 (S.D. Fla.), aff'd, No.
89-5229 (11th Cir. June 7, 1989) ...... 18,19
Home Insulation Services, 255 N.L.R.B. 311 (1981),
enforced, 665 F.2d 352 (11th Cir. 1982) ......... 20
Hot Shoppes, Inc., 146 N.L.R.B. 802 (1964) .......... 15
In re Ionosphere Clubs, Inc., 113 Bankr. 164 (Bankr.
ata? TT OWE sseetnasuabioidditite cucacetat ees ds. ii
In re Ionosphere Clubs, Inc., 922 F.2d 984 (2d Cir.
BNNUEEP ‘Weciecisohendsenitdciiediiessmnbcnieadimuetdiat Ate 22
Table of Authorities Continued
Page
International Ass’n of Machinists, Lodge 1652 v.
International Aircraft Services, Inc., 302 F.2d
BOB GE CR RI nensctasticeneticsiseeicascaibabibecdanes 10
Kurz-Kasch, Inc., 286 N.L.R.B. 1343 (1987), re-
manded on other grounds, 865 F.2d 757 (6th
EE BIE sactoencecescaicsansvinnampenbamebinstaainaieliiliadiais 20
Missouri v. Jenkins, __ U.S. __. , 110 S. Ct. 1651
CRIED sixcinnnnevsnhannentiinseshinndaniiccenentamsaltaamameinall 2
National Airlines, Inc. v. International Ass’n of Ma-
chinists & Aerospace Workers, 430 F.2d 957
(5th Cir. 1970), cert. denied, 400 U.S. 992
CRIP ad -vantesetnciccccevessicetinbls eigeaidinalinaiieiiiaibheknte passim
Newberry Energy Corp., 227 N.L.R.B. 436
ERIE. sacetsivercaiunienniuniautvcieieaksaieadinaniaeeinainraimes 15
NLRB v. Cutting, Inc., 701 F.2d 659 (7th Cir.
DD. sxnsecctesreresentceinvaignnaasiddaidaaiamambeinns 8
NLRB v. Erie Resistor, 373 U.S. 221 (1968) ........ 8,9,22
NLRB v. Fleetwood Trailer Co., 389 U.S. 375
IUD incnicinsuihonevetunieeunsnstaminnaneaigmcanibtaeedbadiain passim
NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333
ENED ccutesicihvnnnsnnasuptcensniesibaniadiiaammnbmigauunaladshins passim
Solar Turbines, Inc., 302 N.L.R.B. No. 3, slip op.
a , Reese em 16,17,18,20
Southwest Engraving Co., 198 N.L.R.B. 694
SI IETE Anuinnnichnnnconeientasaueidaiisamanaaiidnbibinmemipiainae 20
Trans World Airlines v. Independent Fed’n of Flight
Attendants, 489 U.S. 426 (1989) .................... passim
Trans World Airlines v. Independent Fed’n of Flight
Attendants, 818 F.2d 839 (8th Cir. 1987), rev'd
in part on other grounds, 489 U.S. 426
CD cctenucncvacsonncinetnistirsaititeisinimnaimbanilahaiedials 13,14
vii
Table of Authorities Continued
Page
Statutes
Judiciary and Judicial Procedure,
62 Stat 928, 28 U.S.C. § 1254(1) ................0... 2
— Jurisdictional Amendments Act of
94 Stat. 2369, 28 U.S.C. § 1881 oes. ~
District and Circuit Judges - Appointments,
92 Stat. 1629, 28 U.S.C. § 1837(a) ................. 8
National Labor Relations Act,
49 Stat. 449, 29 U.S.C. § 151 et seq. ............. 15,18
Railway Labor Act, 44 Stat. 577, 49 Stat. 1189
(as amended),
OI © icecccsvesircsobcestadoncmscentan passim
i I Pini. csrnanccencestanesinoneincns 7
i heetiindccsrnniatianiicndilintinnsieannecannss 19
i I hii irik cutcttstcckenmaccesestetconsnacatnses 7
Regulations and Rules
i sn weisnnhinetnnababnincbaimadaeedniehenne 12
aon conc ctouhacascacsnnabedaudunssueensensioons 12
en nin spn ndicinsaichanietiilianenenbaamnnn 12
Eleventh Circuit Rule 35-6 0...............ccceeeeeeeeeees 2
SOND COURS TREO BOLT nn... ccccccceccsccnssscccccceceseves ii
Other
Westfall, Striker Replacements and Employee Free-
dom of Choice, 7 Lab. Lawyer 137 (1991) ..... 14
1 4 a ® 7 - ,
. ahs be ws yy. Oe Beka Ai, i yee
| bs
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i
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2 wh
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1999
No. 90-
EASTERN AIR LINES, INC.,
Petitioner,
Vv.
Arr LINE PILOTS ASSOCIATION, INTERNATIONAL
AND EASTERN AIR LINES MASTER EXECUTIVE COUNCIL,
Respondents.
PETITION FOR WRIT OF
CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Eastern Air Lines, Inc. (‘‘Eastern’’) respectfully
seeks review of the decision of a split panel of the
Eleventh Circuit holding that Eastern could not treat
new hire pilots as permanent replacements for strik-
ers before the new hires completed Eastern’s train-
ing. The decision ignores uncontradicted evidence that
Eastern was only able to recruit a sufficient number
of replacement pilots to continue flying duri.g the
strike by offering them permanent employment from
their first day of training. Unless this Court reviews
the decision, Eastern’s bankrupt estate will face tens
of millions of dollars in claims for back-pay from strik-
ers, and airlines will effectively lose their right to
hire permanent replacements for striking pilots.
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the Eleventh Circuit is reported at 920 F.2d 722
and is reprinted at pages la to 19a of the Appendix
(‘‘App.’’). The order of the United States Court of
Appeals for the Eleventh Circuit denying rehearing
and rehearing in banc is not yet reported, but is
reprinted at App. 3la to 32a. The Eleventh Circuit’s
mandate is reprinted at App. 33a to 34a. The order
of the United States District Court for the Southern
District of Florida, which Eastern appealed, is re-
ported at 744 F. Supp. 1140 and is reprinted at App.
20a to 30a.
JURISDICTION
The opinion and judgment of the Eleventh Circuit
were entered on December 20, 1990. App. la, 34a.
Eastern’s Petition for Rehearing and Suggestion of
Rehearing In Banc was denied on March 15, 1991.
App. 3la-32a. This Court’s jurisdiction is invoked un-
der 28 U.S.C. § 1254(1).
STATUTE INVOLVED
This case involves the Railway Labor Act (““RLA’’),
45 U.S.C. § 151 et seg. The provisions of the RLA
1 Pursuant to Eleventh Circuit Rule 35-6, Eastern’s pleading,
which was entitled “Suggestion of Rehearing In Banc,”’ was also
treated as a Petition for Rehearing. See Eleventh Cir. R. 35-6
(“A suggestion of rehearing en banc will also be treated as a
petition for rehearing before the original panel.”); App. 32a (“The
Petition(s) for Rehearing are DENIED...the Suggestion(s) of
Rehearing En Banc are DENIED.”’). Thus, this Petition for Writ
of Certiorari is timely filed within 90 days of the Eleventh
Circuit’s order denying rehearing and rehearing in banc. See
Missouri v. Jenkins, ___ U.S. ___ , 110 S. Ct. 1651, 1662 (1990)
(noting Eleventh Cir. R. 35-6).
relied upon by the Eleventh Circuit are reprinted at
App. 60a to 61a.
STATEMENT OF THE CASE
The Eleventh Circuit’s decision will imperil airlines
during future strikes. As the record here shows, pilots
will not leave their jobs to join a carrier as replace-
ments for strikers contingent on completing several
weeks of federally-required training before the strike
ends, whenever that may be. The decision eviscerates
the airlines’ right under NLRB v. Mackay Radio &
Tel. Vo., 304 U.S. 333 (1938) (““Mackay’’) to operate
during strikes with permanent replacements, conflicts
with decisions in other circuits,? and implies a new
limitation on self-help under the RLA contrary to this
Court’s decision in Trans World Airlines v. Inde-
pendent Fed’n of Flight Attendants, 489 U.S. 426, 442
(1989) (“Trans World’).
A. Statement of Facts
On March 4, 1989, the Air Line Pilots Association,
International (““ALPA’’) launched what it termed a
sympathy strike against Eastern, and only 6% of
Eastern’s pilots reported for work. App. 37a. As a
result, Eastern canceled all but a small portion of its
flights and filed for bankruptcy five days later. App.
37a-38a. After Eastern attempted to persuade the
strikers to return to work and sought an injunction
2 National Airlines, Inc. v. International Ass’n of Machinists
& Aerospace Workers, 430 F.2d 957 (5th Cir. 1970), cert. denied,
400 U.S. 992 (1971) (“National IT’); Air Line Pilots Ass’n Int'l
v. United Air Lines, Inc., 616 F. Supp. 849 (N.D. Ill.), amending,
614 F. Supp. 1020 (N.D. Ill. 1985), rev’d in part on other grounds,
802 F.2d 886 (7th Cir. 1986), cert. denied, 480 U.S. 946 (1987)
(‘United’).
against the strike, Eastern began, as a last resort,
recruiting experienced replacement pilots on March
21, 1989. App. 38a, 46a.
For the first several days, Eastern departed from
its longstanding practice of treating new hire pilots
immediately as permanent employees and told recruits
that they would not be permanent employees until
they completed training. App. 47a n.31, 57a. Because
it soon became clear that Eastern could not attract
enough recruits on those terms, Eastern stated on
March 27, 1989 and thereafter in recruiting materials
and employment offers that Eastern would employ
new hire pilots as permanent replacements and that
they would be guaranteed permanent pilot positions
if they accepted Eastern’s offer of employment. See
App. 49a, 57a-58a.
Eastern hired 1,223 replacement pilots during the
strike; the replacements held airline transport or com-
mercial pilot 'icenses and averaged 5,700 hours of
flight experience with smaller carriers. App. 37a, 40a
n.20, 52a. The uncontradicted evidence is that East-
ern would have been unable to attract sufficient qual-
ified replacement pilots to operate without promising
them permanent employment from their first day of
training.* App. 49a-50a, 52a-53a, 58a.
Eastern treated the replacements at issue identi-
cally to all other Eastern pilots hired during the 25
years preceding ALPA’s strike. See 43a-46a. As of
* Eastern submitted to the District Court over 70 declarations
from replacement pilots stating specifically that they would not
have left their prior jobs to join Eastern unless they were treated
as permanent replacements from the first day of training. ALPA
did not submit any evidence contradicting these declarations.
their first day of training, the replacements came on
Eastern’s payroll, received Eastern seniority numbers
and Eastern dates of hire, had all applicable employ-
ment taxes paid, and began active ‘‘service’’ under
the Eastern-ALPA collective bargaining agreement
used to calculate vacation, sick leave, pension and
other benefits. Jd.
A small number of Eastern pilots initially crossed
ALPA’s picket line. App. 36a, 37a. Thereafter, East-
ern’s pilot positions were also filled by returning
strikers and replacements. Jd. Both the returning
strikers and replacements had to complete training
or retraining required by the Federal Aviation Admin-
istration (‘““FAA’’), under Eastern’s supervision and
control. App. 39a, 40a-42a, 53a-54a. Eastern assigned
replacements to specific positions and aircraft, and
trained them in a program that lasted for at least
eight weeks—a longer period than normal because
Eastern’s limited training facilities were fully taxed
due to the need to train such a large number of pilots.
App. 40a-4la.
As Eastern’s efforts to recruit and train replace-
ments became more successful in the summer of 1989,
and as Eastern was beginning to restore its scheduled
service, the solidarity of the striking pilots began to
wane. See App. 38a-39a. In early August 1989, several
hundred strikers offered to return to work. App. 39a.
Eastern immediately brought these pilots back to
work and retrained them ahead of replacements who
were awaiting training. App. 39a-40a. On August 11,
1989, Eastern determined that it had enough pilots
(replacements and returning strikers) to restore its
full operations. See App. 3a, 39a. Thus, on that day,
Eastern immediately stopped hiring replacements and
announced that no positions were available to any
additional strikers seeking to return to work, but that
they would be recalled as positions became available
in the order in which they offered to return to work.
Id.
ALPA’s strike continued for three more months,
finally ending on November 22, 1989, when ALPA
offered, on behalf of the remaining strikers, to return
to work. Jd. Because Eastern had accelerated the re-
training of returning strikers, approximately 227 re-
placement pilots were still in training when ALPA’s
strike ended. App. 3a, 39a. The Eleventh Circuit’s
decision holds Eastern liable for not laying off the
227 replacements to create vacancies for the strikers
to fill, although Eastern previously guaranteed per-
manent employment to the replacements.‘ App. 3a,
18a.
If Eastern had laid off the 227 replacements, each
returning striker would have had to complete up to
30 days of retraining, including full upgrade and tran-
sition training for new positions, because the replace-
ments did not hold the same positions that the senior
strikers vacated. App. 53a-54a. This retraining would
have taken several months, and Eastern would have
‘ The Eleventh Circuit’s decision goes even further. Aside from
the 227 replacements, other replacements had not completed
their initial operating experience (‘‘IOE’’), which consists of 10-
25 hours of flying on regular revenue flights after a pilot finishes
all ground and flight training. See App. 42a n.25. The Eleventh
Circuit also found that IOE was part of Eastern’s training pro-
gram and effectively holds Eastern liable for declining to lay
off the replacements who had not completed IOE by the strike’s
end. See App. 12a n.5.
had to cancel hundreds of flights in the meantime for
two reasons. App. 54a. First, the strikers could not
have completed their required retraining in time to
staff Eastern’s scheduled flights. Jd. Second, replace-
ments would have quit because of their impending
furlough. Jd.
B. The Decision Below
The Eleventh Circuit’s two-to-one decision estab-
lishes a new per se rule: new hire pilots who do not
complete training before a strike ends are not per-
manent replacements, even if, as here, they accepted
permanent employment, specific job assignments and
pay. App. la-2a, 12a-15a. The decision does not ad-
dress Eastern’s legitimate and substantial business
justification that Eastern was only able to continue
operating during the strike by offering recruits per-
manent employment from the outset of training.
Rather, the decision finds that a new hire pilot does
not meet the RLA’s definition of “‘employee’’ before
completing training® and, therefore, a new hire pilot
is not a permanent replacement until after he or she
5 The RLA defines “‘employee’’ as:
“{E}very person in the service of a carrier (subject to
its continuing authority to supervise and direct the
manner of rendition of his service) who performs any
work defined as that of an employee or subordinate
official in the orders of the Interstate Commerce Com-
mission now in effect... .”
45 U.S.C. § 151, Fifth. The RLA specifically covers ‘every air
pilot or other person who performs any work as an employee
or subordinate official of [a] carrier or carriers, subject to its
or their continuing authority to supervise and direct the manner
of rendition of his service.” 45 U.S.C. § 181.
completes training. App. 9a-10a, 14a. The Eleventh
Circuit avoids the offer and acceptance test used by
the Fifth Circuit in National II for determining
whether an airline may treat a new hire as a per-
manent replacement. App. 15a-17a. The decision holds
that because Eastern’s replacements in training were
not ‘‘employees” under the RLA, Eastern should have
laid them off when the strike ended to create vacan-
cies for strikers. App. 14a, 17a.
Accordingly, the Eleventh Circuit affirmed the Dis-
trict Court, which pursuant to its jurisdiction under
28 U.S.C. §§ 1331, 13837(a), and the RLA granted
ALPA’s motions for summary judgment on its claims
on behalf of the strikers for damages and for a pre-
liminary injunction. App. 19a, 29a. The Eleventh Cir-
cuit remanded to the District Court the subsidiary
question of the precise number of strikers that East-
ern should have reinstated. App. 18-19a.
The Eleventh Circuit reached this result even
though an airline’s right to hire permanent replace-
ments does not stem from the RLA’s provisions gov-
erning employment in general, but rather comes from
an employer’s inherent right to continue its business
during a strike. See Mackay, 304 U.S. at 345. See
also NLRB v. Cutting, Inc., 701 F.2d 659, 662 (7th
Cir. 1983). The decision considers only whether the
replacements in training were “‘employees’’ within the
meaning of the RLA to decide if they actually oc-
cupied the strikers’ jobs before the strike ended, un-
der NLRB v. Fleetwood Trailer Co., 389 U.S. 375,
379 (1967).° App. 6a-7a, 12a-15a.
6 The Eleventh Circuit’s decision also relies on dicta in NLRB
v. Erie Resistor, 373 U.S. 221, 232 (1963). See App. 7a. Erie
The Eleventh Circuit’s decision ignores Fleetwood
Trailer’s statement that the occupying of strikers’
jobs by replacements is merely one legitimate and
substantial business justification that supports an em-
ployer’s refusal to reinstate strikers.’ Thus, the de-
cision does not consider the sufficiency of Eastern’s
justification that Eastern had to offer replacements
permanent employment from the first day of training
to attract enough replacements to avoid shutting down
during the strike.
REASONS FOR GRANTING THE WRIT
A. The Circuits Are Split On The Important Issue Of
Federal Labor Law Raised In This Case
The Eleventh Circuit’s decision conflicts with Na-
tional II (Fifth Circuit) and United (the Northern Dis-
trict of Illinois). This Court should resolve this conflict
so that employers and unions can negotiate and op-
erate in full knowledge of the law concerning striker
replacements.
Resistor involved an employer’s grant of super-seniority to cross-
overs and replacements. By contrast, Eastern did not disturb
its seniority list. Returning strikers maintained their seniority
and did not lose accrued seniority during the strike. The em-
ployer in Erie Resistor was found to have acted in a manner
that was inherently destructive of union membership based upon
detailed factual findings not made here.
7 Fleetwood Trailer states:
“In some situations, ‘legitimate and substantial busi-
ness justifications’ for refusing to reinstate striking
employees who engaged in an economic strike, have
been recognized. One is when jobs claimed by the
strikers are occupied by workers hired as permanent
replacements during the strike in order to continue
operations.”
389 U.S. at 379.
10
1. National II And United Support Eastern’s Position
In National II, the Fifth Circuit established a two-
step test to determine whether 67 replacements were
permanent replacements by the strike’s end. 430 F.2d
at 961. First, in deciding when a replacement is hired:
“(T]he critical time is when the arrangements
with the replacement worker have become
fixed and irrevocable. Thus, if the employer
has the intention to bind itself to a firm con-
tract of employment, and the employee has
accepted a specific job assignment, the re-
placement is ‘hired’ even though subse-
quently he may be divested of his job for
failure to pass medical or security clearance.”
Id. (citation omitted). Second, the replacement must
thereafter “‘actually com{e] on the payroll.’ Jd.
Eastern’s replacements met this test. Before the
strike ended, they accepted offers of permanent em-
ployment and specific job assignments, and they had
come on Eastern’s payroll.
The Eleventh Circuit majority dismisses these facts
by declaring that replacements in training did not
have “fixed and irrevocable” employment.® App. 16a.
8 In adopting the “fixed and irrevocable” language, the Fifth
Circuit in National II was following the Fourth Circuit in In-
ternational Ass’n of Machinists, Lodge 1652 v. International Air-
craft Services, Inc., 302 F.2d 808, 812 (4th Cir. 1962) (“‘JAM’’).
See National II, 480 F.2d at 961. In ZAM, the Fourth Circuit
held that if the employer “‘bound itself irrevocably by contracts
of employment made with replacement employees some time
before they went to work,” the replacements were hired before
the strike ended. 302 F.2d at 812. The Fourth Circuit directed
the district court to “ascertain when the new employees had
1}
Their employment was, however, “fixed and irrev-
ocable”’ as defined in National II (acceptance of per-
manent employment and a specific job assignment)
and under state contract law. See Belknap, Inc. v.
Hale, 463 U.S. 491 (1983) (‘“Belknap’’).
The decision also attempts to distinguish National
IT on two other grounds, each of which is unavailing.
First, the decision notes that National II did not in-
volve replacements who had to pass a training pro-
gram. App. 16a. But, National IJ did involve 63
replacements who had not even reported to the air-
line, a far cry from Eastern’s replacements who had
all begun training on Eastern’s payroll before ALPA’s
strike ended.® Just because this case involved pilots
(for whom training is required) while Nationai IT in-
volved mechanics is no reason to reject National II's
binding offer and acceptance test.
payroll status and what, if any, enforceable legal obligations the
company incurred in its arrangements with them.” Jd. at 813.
Eastern’s replacements in training clearly met the Fourth Cir-
cuit’s test, having accepted firm offers of permanent employment —
and acquired payroll status before ALPA’s strike ended.
* Accordingly, even though National’s replacements were ‘‘not
actually performing the work ordinarily discharged by the former
strikers” (App. 13a), National IT held that they were- permanent
replacements if they had accepted permanent employment and
specific job assignments, and came on National’s payroll. Thus,
a factor critical to the Eleventh Circuit majority (App. 13a) is
irrelevant under National IT. The Eleventh Circuit’s decision also
overemphasizes pilot training in singling out the replacements
as ‘‘unqualified.’’ Neither the replacements nor the strikers were
immediately ‘‘qualified to perform the work Eastern’s pilots or-
dinarily discharged.”’ App. 12a. Eastern’s operations would have
been curtailed and disrupted while strikers completed retraining.
See App. 54a.
12
Second, the decision labels medical and security
clearance as mere ‘“‘technicalities’’ as compared to
training. App. 16a. There is no basis in law or the
record for this “distinction” as Circuit Judge Ander-
son pointed out in his dissent; all three are require-
ments that pilots must fulfill after they accept
permanent employment.’° App. 19a. Eastern’s new
hires were permanent replacements when they met
National IIs standard, without regard to whether
they had satisfied training, medical, or security clear-
ance requirements.
United also supports Eastern here. In United, Judge
Bua of the Northern District of Illinois held that 539
United new hire pilots who accepted offers of per-
manent employment, including 114 new hires who did
not even begin training during the strike, were per-
manent replacements. 616 F. Supp. at 851 (“‘Per-
manent replacements hired from outside the company,
unlike striking pilots who cross over, need not ac-
tually begin working in order to retain their jobs fol-
lowing the conclusion of a strike.”). A fortion,
Eastern’s new hires, who all began training during
the strike, were permanent replacements. The Elev-
enth Circuit’s decision does not even address the sig-
nificant United district court decision."
‘For instance, the FAA regulates pilot training, medical
clearance, and airline security. 14 C.F.R. Parts 121, 67, 108.
1 The Seventh Circuit reversed a prior decision in the same
case on a different issue. See Air Line Pilots Ass’n, Int'l v.
United Air Lines, Inc., 802 F.2d 886 (7th Cir. 1986), cert. denied,
480 U.S. 946 (1987). The Seventh Circuit held that a different
group of 500 new hires (the “Group of 500’) who did not accept
offers of permanent employment and, with a few exceptions,
never came to work were not “employees” within the RLA’s
iii.
13
2. The Eighth Circuit’s Trans World Decision Is Distin-
guishable And Wrong
The Eleventh Circuit followed the Eighth Circuit’s
Trans World decision, 819 F.2d 839 (8th Cir. 1987)
rev'd in part on other grounds, 489 U.S. 426 (1989).
App. 10a-lla, 12a.!2 That decision, which involved
TWA’s hiring of replacement flight attendants during
a strike, is inapposite. TWA never offered employ-
ment to flight attendants before they completed train-
ing (for which they paid tuition) except after the strike
began. 819 F.2d at 841 n.2. By contrast, Eastern
treated the replacements at issue exactly as it treated
all new hire pilots for the 25 years before ALPA’s
strike began.
The Eighth Circuit’s decision is wrong because it
confuses whether an airline may refuse to lay off new
hires because the airline, out of necessity, offered
them permanent employment, with the separate and
distinct question of whether new hires qualify as RLA
“employees” to assert claims under the RLA against
their employer. An airline seeking to operate during
definition, and ALPA could not succeed on a claim on-behalf of
the Group of 500 against United for violating the RLA. 802
F.2d at 892-93. The Group of 500 would not have been per-
manent replacements under National II or under Judge Bua’s
subsequent decision in any event; they received only expense
reimbursements rather than salary and signed agreements pro-
viding that they would not be employees during training. The
Group of 500 were very different from Eastern’s replacements
and United’s 539 other new hires.
2 The Eleventh Circuit also relied on the Seventh Circuit’s
United decision (App. lla, 12a), which held that ALPA could
not assert RLA claims on behalf of the Group of 500, who had
expressly agreed that they were not permanent employees dur-
ing training. That decision is plainly inapposite. See n. 11, supra.
14
a strike, as it is entitled to do under Mackay, must
recruit and hire replacements without knowing when
the strike will end. See Westfall, Striker Replacements
and Employee Freedom of Choice, 7 Lab. Lawyer 137,
146 (1991) (““The Mackay doctrine allows each side to
a bargaining dispute, in effect, to ‘test the market’
by seeking and using alternative sources of labor and
employment, respectively.’’). Eastern’s offers of per-
manent employment to potential new hires were
wholly necessary in that context.
RLA “employee” status is very different. It does
not depend upon or arise ipso facto from a strike.
Because Eastern voluntarily extended the terms of
its collective bargaining agreement to the new hires
(creating obligations under state contract law as es-
tablished in Belknap), it was academic whether the
new hires could someday assert claims as RLA “‘em
ployees.’’* Indeed, under National II, permanent re-
placements acquire that status when hired, before they
are “employees” under any definition, statutory or
otherwise. This Court should grant this Petition and
reject the Eighth Circuit’s analysis in Trans World,
which focuses on an irrelevant and esoteric question.
18 In fact, the Eleventh Circuit’s answer to this irrelevant ques-
tion was itself wrong because Eastern’s replacements in training
were subject to Eastern’s supervision and control, and required
attendance in training does constitute work. See App. 41a. In-
deed, during IOE (which is training according to the Eleventh
Circuit), new hires piloted Eastern revenue flights. See App. 42a,
12a-13a.
15
B. The Eleventh Circuit’s Decision Violates The Pre-
cepts Set Forth By This Court In Its Trans World
Decision
The Eleventh Circuit’s decision conflicts with this
Court’s decision in Trans World both by substantially
narrowing the RLA right of self-help and in doing so
by implying a new limitation on that right.
1. Contrary To This Court’s Decision In Trans World, The
Eleventh Circuit Makes Self-Help More Limited Under
The RLA Than The NLRA
This Court reiterated in Trans World the funda-
mental principle that the RLA “provide{s] greater av-
enues of self-help’ than the National Labor Relations
Act (““NLRA’’), 29 U.S.C. § 151 et seg. Trans World,
489 U.S. at 438 (citing Burlington Northern R. Co.
v. Maintenance of Way Employees, 481 U.S. 429, 444
(1987); Brotherhood of R.R. Trainmen v. Jacksonville
Terminal, 394 U.S. 369, 391-92 (1969)). The Eleventh
Circuit’s decision vitiates this Supreme Court doc-
trine. The decision makes the right of RLA employers
to hire permanent replacements during a strike much
narrower than the corresponding NLRA right. Nu-
merous cases decided under the NLRA hold, contrary
to the Eleventh Circuit’s decision here, that new hires
become permanent replacements when hired, without
regard to their need for training or their beginning
work after the strike ended."
4 B.g., Newberry Energy Corp., 227 N.L.R.B. 436, 437 (1976)
(“The Board has uniformly held that where an employer makes
a commitment to an applicant for a striker’s job it will normally
regard that commitment as a legitimate replacement even though
the striker requests reinstatement before the replacement ac-
tually begins to work.”’) (footnote omitted); Hot Shoppes, Inc.,
146 N.L.R.B. 802, 804 (1964) (“And under established Board
16
Recently, the National Labor Relations Board
(‘“‘NLRB”’) reaffirmed this holding and rejected the
Eleventh Circuit’s view in Solar Turbines, Inc., 302
N.L.R.B. No. 3, slip op. (March 11, 1991) (‘‘Solar
Turbines’’). The NLRB ruled that 39 new hires who
had not taken (much less, passed) a preemployment
drug and alcohol test or begun work before the strike
ended were permanent replacements for strikers be-
cause of the employer’s ‘‘clear commitment to hire
them as permanent replacements.” Jd. at 5. Solar
Turbines holds that replacements fill strikers’ jobs ‘‘as
of the time the putative replacements accept an em-
ployer’s offers of permanent employment in the strik-
ers’ jobs,” even if the replacements actually began
work after the strike ended. Jd. at 3. By contrast,
the Eleventh Circuit disregarded Eastern’s clear com-
mitment to the new hires that Eastern would hire
them as permanent replacements and held that East-
precedent the fact that replacements lacked experience and re-
quired some training, and that some did not remain permanently
in Respondent’s employ, does not detract from Respondent’s
intent at the time of hiring that the replacement become the
permanent replacements of the strikers. Accordingly, we find
that Respondent intended to, and did in fact, hire permanent
replacements for the strikers.”) (footnote omitted); Anderson,
Clayton & Co., 120 N.L.R.B. 1208, 1214 (1958) (“The replace-
ments admittedly were totally inexperienced and without known
aptitudes or fitness for the jobs to which they had been assigned,
jobs which require training estimated at 1 to 4 months or so
.... Despite all these matters, ... and the fact that six of the
so-called permanent replacements had only received their as-
signment to these positions prior to the conclusion of the strike
and entered upon their duties only after the conclusion of the
strike ... the employer had the right during the pendency of
the strike to assign anyone it cared to work permanently on
these jobs and that such assignments must be considered as
permanent replacements.”’).
17
ern’s new hires did not fill the strikers’ jobs as of
the time the new hires accepted Eastern’s offers of
permanent employment. App. 14a-15a.
In addition, Solar Turbines rejects the Eleventh
Circuit’s focus on whether new hires met the statu-
tory definition of ‘“‘employee” to decide whether an
employer hired permanent replacements before the
strike ended.'* The NLRB finds that irrespective of
whether the new hires were statutory “‘employees’’
before the strike ended for purposes of collective bar-
gaining, the employer could treat the new hires as
permanent replacements for strikers if the employer
hired them on that basis:
“The question before us here is not whether
the Respondent was required to bargain with
the Union before administering the drug and
alcohol tests to the putative replacements.
Rather, the question is whether the hiring
commitment made to prospective employees
was sufficient to effect the permanent re-
placement of strikers.”
Id. at 4 n.38 (emphasis added).
‘6 The NLRB relied on this Court’s decision in Belknap, which
states as follows:
“That the offer and promise of permanent employ-
ment are conditional does not render the hiring any
less permanent if the conditions do not come to pass.
All hirings are to some extent conditional.”
463 U.S. at 504 n.8, (quoted in Solar Turbines, slip op. at 6).
Thus, even though Eastern’s new hires had to complete training
to fly for Eastern, they were still permanent replacements both
under Belknap and Solar Turbines, contrary to the Eleventh
Circuit’s view.
18
Eastern’s new hire pilots at issue here were per-
manent replacements under Solar Turbines’ analysis,
even though that decision was issued in an NLRA
case. Thus, the Eleventh Circuit’s decision violates
the fuiidamental principle reiterated by this Court in
Trans World. The Eleventh Circuit substantially nar-
rowed the RLA right to hire permanent replacements
as compared to the right as construed in NLRA cases
such as Solar Turbines, and the hiring of permanent
replacements is a critical component of an employer’s
right under either statute to use self-help. The Elev-
enth Circuit’s result is backwards; this Court held in
Trans World that the RLA permits greater, not
lesser, avenues of self-help as compared to the NLRA.
2. Contrary To This Court’s Decision In Trans World, The
Eleventh Circuit Implies A New Limitation On The RLA
Right Of Self-Help
The Eleventh Circuit’s decision also conflicts with
Trans World’s admonition not to imply new limita-
tions on the RLA right of self-help. In Trans World,
this Court stated:
“(W]e should hesitate to imply limitations on
all but those forms of [RLA] self-help that
strike a fundamental blow to union or em-
ployer activity and the collective bargaining
process itself.’’
489 U.S. at 442.1
\
‘6 Unlike the more typical situation involving the use of RLA
self- -help, Eastern and ALPA had not exhausted the RLA’s bar-
gaining processes when ALPA began its strike. ALPA claimed
that it went on strike in sympathy with the International As-
sociation of Machinists’ strike against Eastern, which also began
on March 4, 1989. See Eastern Air Lines, Inc. v. Air Line Pilots
19
The Eleventh Circuit’s decision implies a new lim-
itation on RLA carriers’ use of self-help by severely
constraining airlines’ ability to recruit replacement
pilots, even though the RLA does not impose any
such constraint. The Eleventh Circuit’s decision jus-
tifies this result by finding conclusorily that ‘‘East-
ern’s treatment of the returning pilots strikes a
fundamental blow to the union and collective bar-
gaining process.’’ App. 18a. The decision goes so far
as to find that Eastern did not promote a purpose
of the RLA set forth in 45 U.S.C. §15la by not
“avoid{ing] any interruption to commerce or to the
operation of any carrier engaged therein.’’ App. 17a.
The facts are to the contrary. Eastern treated the
returning strikers and the replacements precisely the
same. Eastern deemed them all permanent employees
from their first day of training. This treatment did
not strike a fundamental blow to ALPA in the 25
years preceding the strike. Moreover, Eastern did not
abuse its Mackay right during ALPA’s strike. Eastern
stopped hiring replacements as soon as Eastern sat-
isfied its need for additional pilots, three months be-
fore the strike ended. App. 3a, 39a. Cf. Fleetwood
Trailer, 389 U.S. at 379 (alleged replacements hired
two months after strike ended). Indeed, were it not
for Eastern’s promise to recruits that Eastern would
treat them as permanent employees from the first
day of training, Eastern would not have had sufficient
Ass’n, Int'l, 710 F. Supp. 1342 (S.D. Fla.), affd, No. 89-5229
(11th Cir. June 7, 1989). From a carrier’s standpoint, the need
for self-help is the same whether it faces a primary strike or a
sympathy strike: ‘‘to carry on the business.’”’ Mackay, 304 U.S.
at 345.
20
replacement pilots to fly its full schedule. App. 49a-
50a, 52a, 58a.
The law is also to the contrary. Other employers,
including United Air Lines and National Airlines, law-
fully declined to reinstate strikers because their po-
sitions were filled by replacements who had not
completed training or otherwise not begun work when
the strike ended, provided that the replacements had
accepted offers of permanent employment by then.
National II, 480 F.2d at 961 (63 replacements not
even on National’s premises at strike’s end); United,
616 F. Supp. at 851 (114 replacements had not begun
training by strike’s end). See also Solar Turbines, slip
op. at 5-7 (replacements had merely been assigned job
classifications, work departments and employee badge
numbers before strike ended); Kurz-Kasch, Inc., 286
N.L.R.B. 1348, 13860 (1987), remanded on other
grounds, 865 F.2d 757 (6th Cir. 1989) (replacements
started work one month after strike ended because
employer could not train them earlier); Home Insu-
lation Services, 255 N.L.R.B. 311, 312 n.9 (1981),
enforced, 665 F.2d 352 (11th Cir. 1982) (rejecting ar-
gument that replacements who accepted permanent
employment, but did not report to work before strike
ended were not permanent replacements); Southwest
Engraving Co., 198 N.L.R.B. 694, 695 (1972) (replace-
ment began work two months after strike ended);
Anderson, Clayton & Co., 120 N.L.R.B. at 1214 (re-
placements merely received assignments before strike
ended, needed one to four months of training, and
began work after strike ended).
This Court should review the Eleventh Circuit’s de-
cision because it is at odds with this Court’s decision
in Trans World.
21
C. The Eleventh Circuit’s Decision Destroys An Air-
line’s Right Under Mackay To Continue Operating
During A Pilot Strike By Hiring Permanent Replace-
ments
If the Eleventh Circuit’s decision remains intact,
airlines will be unable to use their Mackay right dur-
ing future pilot strikes for at least two reasons. First,
the record here shows that pilot recruits will not leave
their existing jobs to become replacements subject to
layoff if they do not complete several weeks of train-
ing before the strike ends. See App. 49a-50a, 52a,
58a. Because potential replacements do not know
when a strike might end, the decision creates an un-
tenable risk in the eyes of recruits that airlines may
have to layoff replacements.
Under the Eleventh Circuit’s decision, an airline
can only hire replacements who are temporary, not
permanent, at least until they complete training. This
radical change will make it much harder for airlines
to recruit replacements, as Eastern’s experience
proves. Airlines will not have enough replacements to
operate during strikes, and the travelling public will
suffer as a result.’
‘7 ALPA speculated below that Eastern could have emulated
United with the Group of 500 and pre-trained an entire work
force of replacements before the strike began. Eastern, a carrier
in financial extremis, certainly could not have afforded to main-
tain two pilot work forces. See Air Line Pilots Ass’n, Int'l v.
Eastern Air Lines, Inc., 863 F.2d 891 (D.C. Cir. 1988), reh’g
en bane denied, 863 F.2d 913 (D.C. Cir. 1989) (Eastern lost $1
billion from 1980 to 1988). The pre-training of an entire body
of replacements is also much more draconian than Eastern’s
conduct, which enabled hundreds of strikers to return to work.
ALPA also suggested disingenuously that Eastern could have
22
Second, even if an airline could recruit new hires
on contingent terms, the union could easily oust them.
The union need only dribble strikers back to work
equal in number to each class of new hires as it
completes training and prepares to embark on IOE.
The airline could not operate while the cross-overs
completed retraining, and the bulk of the strikers
could stay out indefinitely without any risk of being
permanently replaced.
This Court has repeatedly reaffirmed Mackay.
Trans World, 489 U.S. at 483; Belknap, 463 U.S. at
504 n.8; Fleetwood Trailer, 389 U.S. at 379; Hrie
Resistor, 373 U.S. at 221. This Court should review
the Eleventh Circuit’s decision to prevent Mackay
from becoming a nullity during future airline strikes.
D. The Eleventh Circuit’s Decision Ignores The Hiring
Needs Of Airlines Attempting To Fulfill Their Sta-
tutory Obligation To Operate During Pilot Strikes
The uncontradicted evidence before the Eleventh
Circuit was that Eastern could not recruit enough
replacement pilots to operate during ALPA’s strike
by offering them employment contingent on their
completion of training. See App. 49a-50a, 58a. Never-
theless, the Eleventh Circuit held that the very em-
ployment terms that Eastern tried and found
inadequate to attract replacements are the only terms
that Eastern could have lawfully used.
As even the Eleventh Circuit concedes in conclusory
fashion, the law is that strikers need not be reinstated
if an employer has a legitimate and substantial busi-
entered into additional subcontracts with Continental Airlines,
a practice for which ALPA sued Eastern in another case. See
In re Ionosphere Clubs, Inc., 922 F.2d 984 (2d Cir. 1990).
23
ness justification. Fleetwood Trailer, 389 U.S. at 379.
The Eleventh Circuit did not, however, recognize that
Eastern, as a carrier subject to the RLA, had a “‘duty
to make all reasonable efforts to continue its opera-
tions during a strike ... ” Brotherhood of Ry. & S.S.
Clerks v. Florida East Coast Ry., 384 U.S. 238, 247
(1966). Eastern tried to recruit a sufficient number
of replacements based upon the terms ultimately man-
dated by the Eleventh Circuit, but could not do so.
It was certainly reasonable for Eastern to fulfill its
duty to continue flying by reverting to its 25 year
practice of offering permanent employment from the
first day of training.
The Eleventh Circuit did not even consider whether
this justification was sufficient. In light of the sub-
stantial risk that other airlines will have to shut down
during future strikes given Eastern’s proven inability
to recruit sufficient replacements on the Eleventh Cir-
cuit’s terms, this Court should set this matter for
plenary consideration.
CONCLUSION
This case is critical to the airline and railroad in-
dustries. The Eleventh Circuit’s decision itself states
that the issue at stake has never been decided by
vais Court. App. 9a. The decision threatens the well-
established rights of an employer to hire permanent
replacements for strikers and to operate during a
strike. Eastern’s estate faces tens of millions of dol-
lars in claims, and the decision endangers airlines in
future strikes. This Court should review such a far-
reaching and ill-advised decision.
24
For the foregoing reasons, Eastern Air Lines, Inc.
respectfully requests that the Court grant this
Petition.
Respectfully submitted,
RONALD B. NATALIE
JOSEPH L. MANSON, III*
DEAN R. BRENNER
VERNER, LIIPFERT, BERNHARD,
MCPHERSON AND HAND, CHARTERED
901 15th Street, N.W.
Suite 700
Washington, D.C. 20005
(202) 371-6000
Attorneys for Petitioner
Dated: June 12, 1991
*Counsel of Record
APPENDIX
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APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 90-5658
D.C. Docket No. 89-1630-Civ-EBD
EASTERN AIR LINES, INC.,
Plaintiff-Counterclaim
Defendant-Appellant,
versus
AIR LINE PILOTS ASSOCIATION
INTERNATIONAL, EASTERN AIR
LINES MASTER EXECUTIVE COUNCIL,
Defendants-Counterclaim
Plaintiffs- Appellees.
Appeal from the United States District Court
for the Southern District of Florida
(December 20, 1990)
Before HATCHETT, and ANDERSON, Circuit Judges, and
ESCHBACH”", Senior Circuit Judge.
HATCHETT, Circuit Judge:
In this expedited case, we affirm the district court’s
ruling that Eastern Air Lines, Inc. (Eastern) is obligated
* Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the
Seventh Circuit, sitting by designation.
2a
under the Railway Labor Act to reinstate returning pilot-
strikers prior to awarding pilot positions to new hire pilots
who, at the time the pilot-strikers unconditionally offered
to return to work, had not successfully completed East-
ern’s training program and had not started flying regular
revenue flights.
FACTS
On March 4, 1989, the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO (IAM), which
is the collective bargaining representative for mechanics
and ground service employees at Eastern, initiated a strike
against Eastern. On the same day, the Air Line Pilots
Association, International (ALPA), which is the collective
bargaining representative for Eastern’s pilots, and the
Eastern pilot group decided to honor the IAM’s picket
lines by engaging in a sympathy strike.
Shortly after the strike commenced, Eastern began hir-
ing and training new pilots to fill vacant positions caused
by the strike. For at least the first ten days of this hiring
process, Eastern told prospective new hire pilots that they
would become Eastern employees and assume permanent
status upon completion of their training. Subsequently,
Eastern informed new hire pilots that they would be con-
sidered permanent replacements for Eastern’s striking pi-
lots on the first day of training.
Eastern periodically entered the new recruits into the
pilot training program which it administered under Federal
Aviation Administration (FAA) guidelines. The training
program lasted at least eight weeks (but in some cases
took as long as four months), and included ground school
instruction, oral and written examinations, and extensive
use of sophisticated cockpit and flight simulators. See gen-
erally 14 C.F.R. §§ 121.403-09, 121.424, 121.433 (1990).
New hire pilots were also required to complete between
ten to twenty-five hours of operating experience on the
——w
3a
type of aircraft for which they had been trained. This
operating experience, called Initial Operating Experience
(IOE), must be performed on Eastern aircraft under the
supervision of a “check pilot.’”’ See 14 C.F.R. § 121.434
(1990). Under FAA requirements, Eastern’s pilot trainees
must pass: (1)an FAA-administered examination after
completing ground school; (2) an FAA-administered simu-
lator test; and (3) an FAA-administered check ride at the
conclusion of IOE. If the trainee successfully completes
each of these requirements, the FAA issues a certificate
which permits the trainee to fly regular revenue flights
under Eastern’s supervision and authority.
By early August of 1989, many of Eastern’s striking
pilots had made unconditional offers to return to work.
On August 11, 1989, Eastern publicly stated that no pilot
positions were available to former strikers. Instead, East-
ern announced that strikers wishing to return to work
would be placed on inactive status on a preferential recall
list for future pilot positions as they became available. As
of August 11, 1989, a significant number of new hire re-
placement pilots were still in training.
On November 22, 1989, the ALPA terminated the pilot
strike and notified Eastern that all former strikers were
immediately and unconditionally available to return to
work. As of that date, at least 227 new hire replacement
pilots remained in training.' From at least early August,
1989, until August 2, 1990, when the district court granted
ALPA’s motion for a preliminary injunction, Eastern filled
vacant pilot positions by giving preference to its new hire
pilots, rather than Eastern’s striking pilots who had un-
conditionally offered to return to service.
' Eastern maintains that 227 new-hire pilots remained in training as
of November 22, 1989, while ALPA contends that at least 250 re-
placement pilots remained in training as of that date.
4a
PROCEDURAL HISTORY
On August 11, 1989, Eastern filed this action against
ALPA seeking a declaratory judgment under the Railway
Labor Act (RLA), 45 U.S.C. §§ 151-188, declaring that its
“new hire pilots in training are permanent replacements
who may not be deprived of active employment by strikers
who have offered to return to work but have not yet been
reinstated.”” ALPA counterclaimed requesting injunctive,
declaratory, and monetary relief under the RLA. By its
counterclaim, ALPA sought to vindicate its rights and the
rights of former strikers against ‘‘Eastern’s refusal to rein-
state former strikers to Eastern pilot positions by treating
non-employee ‘trainees’ as permanent replacements.”’ Both
Eastern and ALPA filed motions for summary judgment.
ALPA also moved for preliminary injunctive relief under
Count I of its counterclaims.
The district court entered summary judgment for ALPA
and denied Eastern’s request for summary judgment. Fur-
ther, the district court granted ALPA’s motion for pre-
liminary injunctive relief under Count I of its
counterclaims, (1) enjoining Eastern from treating its train-
ees as permanent replacements, or awarding trainees pilot
positions ahead of former striking pilots who uncondition-
ally returned to work, (2) ordering reinstatement for each
former striking pilot prior to awarding pilot positions to
new hire pilots who remained trainees as of November 22,
1989, and (3) enjoining displacement of striking pilots by
new hire pilots who remained trainees as of November 22,
1989. ALPA’s motion for preliminary injunctive relief de-
fined trainees as “new hire pilot recruits who have not
completed new hire pilot training—including Initial Oper-
ating Experience training flights and the receipt of a final
Federal Aviation Administration... release to perform
Eastern pilot services—and have not flown their initial,
FAA-authorized Eastern revenue flight.”
eee ee Cee Senet ee
5a
CONTENTIONS
Eastern contends that the district court erroneously
ruled that the RLA requires it to displace its newly hired
trainee pilots and reinstate former striking pilots to avail-
able Eastern pilot positions. According to Eastern, its new
hire pilots who were still in training when the strike ended,
were permanent employees. Consequently, Eastern argues
that under striker replacement law, the returning strikers
are not entitled to displace these permanent replacement
pilots. Further, Eastern contends that the district court’s
preliminary injunction is impermissibly vague. Fed. R. Civ.
P. 65(d).
ALPA contends that the district court properly granted
summary judgment because Eastern violated the RLA by
refusing to reinstate returning strikers prior to awarding
pilot positions to pilot trainees. Pilot trainees are not ‘‘per-
manent replacements” under the RLA, ALPA argues, un-
til they fully complete training and operate their post-IOE
initial revenue flight. Moreover, ALPA contends that the
district court’s preliminary injunction satisfies the require-
ments of Fed. R. Civ. P. 65(d).
ISSUE
The sole issue in this case is whether the district court
correctly determined that the RLA requires Eastern to
reinstate former striking pilots prior to awarding pilot po-
sitions to new hire pilots in training.”
2 In its brief, Eastern contends that the issue is: ‘Whether a bankrupt
airline such as Eastern may treat new hire pilots as permanent re-
placements for striking pilots from their first day of training....”
Eastern’s status as a bankrupt airline is of little legal significance in
determining whether it is obligated under the RLA to reinstate re-
turning pilots.
6a
DISCUSSION
A. Standard of Review
Our review of the district court’s grant of summary
judgment ‘“‘is plenary, and we must apply the same legal
standards used by the district court.” Fernandes v. Bank-
ers National Life Ins. Co., 906 F.2d 559, 564 (11th Cir.
1990). “‘We will affirm the district court if, after constru-
ing the evidence in the light most favorable to the non-
moving party, we find that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law.” William Penn Life Ins.
Co. of New York v. Sands, 912 F.2d 1359, 1361 (11th Cir.
1990). Further, we review the district court’s grant of a
preliminary injunction only for an abuse of discretion. Zar-
dui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.
1985).
B. The Railway Labor Act and Reinstatement Rights
Under the RLA, airline employees remain statutory em-
ployees of the carrier during a strike unless they secure
other work. See Independent Fed’n of Flight Attendants v.
Trans World Airlines, Inc., 819 F.2d 839, 842 (8th Cir.
1987) (Trans World), rev’d on other grounds, 103 L. Ed.
2d 456 (1989); cf. NLRB v. Fleetwood Trailer Co., 389
U.S. 375, 378-79 (1967) (Fleetwood Trailer). Consequently,
an employer’s refusal to reinstate former strikers after an
economic strike constitutes an unfair labor practice unless
the employer can prove that the failure to reinstate is
based upon “‘legitimate and substantial business justifica-
tions.” See Fleetwood Trailer, 389 U.S. at 378-79 (quoting
NLRB v. Great Dane Trailers, 388 U.S. 26, 34 (1967)).
Where, for instance, an employer hires permanent re-
placement employees during an economic strike to continue
operations, and refuses to discharge the permanent re-
placements in order to make room for returning strikers,
the Supreme Court has found the employer’s decision to
Bic ciceemneemaenenteneieninniatnataeaiiiaiatiaa titans
Ta
be supported by a legitimate and substantial business jus-
tification. See NLRB v. Mackay Radio & Telegraph Co.,
304 U.S. 333, 345-46 (1938) (Mackay); Fleetwood Trailer,
389 U.S. at 379 (an employer has ‘“‘legitimate and sub-
stantial business justifications’’ for refusal to reinstate
when “‘the jobs claimed by the strikers are occupied by
workers hired as permanent replacements during the strike
in order to continue operations’); NLRB v. Erie Resistor
Corp., 373 U.S. 221, 232 (1963) (Erie Resistor) (under
Mackay, “‘an employer may operate his plant during a
strike and at its conclusion need not discharge those who
worked during the strike in order to make way for re-
turning strikers.’’). Under these circumstances, the em-
ployer’s legitimate interest in continuing operations is
“deemed to outweigh the damage to concerted activities
caused by permanently replacing strikers.”’ Erie Resistor,
373 U.S. at 232. Although this exception, referred to as
the Mackay exception, is firmly rooted in striker replace-
ment doctrine, “[c]ourts have been reluctant to extend”’
it. Trans World, 219 F.2d at 846 (citing Erie Resistor,
373 U.S. at 232; International Ass’n of Machinists and
Aerospace Workers v. J.L. Clark Co., 471 F.2d 694, 698
(7th Cir. 1972)).?
C. District Court’s Ruling
The district court began its analysis by noting that ‘‘[n]Jo
authority binding on this court has directly addressed the
* Though the courts have developed much of this striker-replacement
doctrine in the context of the National Labor Relations Act (NLRA),
the Supreme Court in Trans World Airlines, Inc. v. Independent Fed’n
of Flight Attendants, 103 L. Ed. 2d 456, 465 (1989), observed “that
carefully drawn analogies from the federal common labor law developed
under the NLRA may be helpful in deciding cases under the RLA.”’
The Supreme Court cautioned, however, that “the NLRA ‘cannot be
imported wholesale into the railway labor arena. Eve> rough analogies
must be drawn circumspectly with due regard for the many differences
between the statutory schemes.’’’ Trans World, 103 L. Ed. 2d at 469
(quoting Trainmen v. Jacksonville Terminal, 394 U.S. 369, 383 (1969)).
8a
issue of whether replacements still in training at the time
a strike is called off may be accorded permanent replace-
ment status.” The district court defined trainees as “‘new
hire pilots who were still in training, and who had not yet
begun flying regular revenue flights... when the ALPA
pilots made unconditional offers to return to work.”
In the absence of binding authority, the district court
followed Trans World, 819 F.2d at 845-47, cert. denied in
rel. part, 485 U.S. 958 (1988), and Air Line Pilots Ass’n.
Intern. v. United Air Lines, Inc., 302 F.2d 886 (7th Cir.
1986) (United Air Lines), cert. denied, 480 U.S. 946 (1987),
and held that “[t]o the extent that the pilot trainees in
the instant case had not performed the work ordinarily
discharged by the striking pilots, the trainees were not
employees protected by the RLA.” Further, the district
court found that although Eastern ‘“‘had a legitimate and
substantial business justification to replace striking pilots
with replacement pilots who could promptly assume the
requisite duties and responsibilities of striking pilots, the
same does not hold true with regard to trainees.’”’ Based
upon these findings, the district court concluded that ‘‘the
Mackay balance weighs in favor of reinstating the striking
pilots in place of the trainees.”’
In this court, Eastern argues that, contrary to the dis-
trict court’s conclusion, its trainee pilots are permanent
replacement employees, and that it is not, therefore, ob-
ligated to reinstate returning strikers. According to East-
ern, this case is controlled by National Airlines, Inc. v.
International Ass’n of Machinists and Aerospace Workers,
416 F.2d 998 (5th Cir. 1969) (National I), appeal after
remand, 430 F.2d 957 (5th Cir. 1970) (National ID), cert.
denied, 400 U.S. 992 (1971). In response, ALPA argues
(1) that returning pilots are entitled to displace pilot train-
ees because the trainees are not yet “permanent employ-
ees” under the RLA, (2) that National I and National II
are consistent with the district court’s holding, and (3) that
this court should follow the Eighth Circuit’s holding in
9a
Trans World, and the Seventh Circuit’s decision in United
Air Lines.
D. Analysis
In this case, it is undisputed that replacement pilots who
had begun flying regular revenue flights before Eastern’s
striking pilots made their unconditional offers to return to
work, may be accorded permanent replacement status un-
der the Mackay exception, and are not to be displaced to
create positions for returning strikers. At issue is whether
Eastern is obligated, under the RLA, to reinstate return-
ing pilots prior to awarding pilot positions to new hire
pilots in training who had not (1) completed Eastern’s
training program and IOE, (2) obtained an FAA certificate,
and (3) begun flying regular revenue flights under East-
ern’s supervision and authority.
We note at the outset that neither the Supreme Court
nor this court has specifically addressed whether the RLA
requires an employer to reinstate returning strikers before
awarding permanent positions to new hire trainees, such
as the trainee pilots involved in this case. The answer to
this question turns on whether Eastern’s trainees were
“permanent replacements.’’
1. Trainees, Trans World, and United Air Lines
The narrow Mackay exception does not apply in this
case because Eastern’s trainee pilots did not attain the
status of permanent replacement employees. The RLA de-
fines an ‘“employee”’ as:
every person in the service of a carrier (subject
to its continuing authority to supervise and direct
* Because the Supreme Court in Mackay and Fleetwood Trailer struck
the balance when it held that a legitimate and substantial business
justification supports an employer’s decision to displace strikers with
permanent replacements in order to continue operations, we do not
consider the balance anew.
10a
the manner of rendition of his service) who per-
forms any work defined as that of an employee
or subordinate official in the orders of the In-
terstate Commerce Commission now in ef-
ey
45 U.S.C. §151, Fifth. Further, 45 U.S.C. § 181 limits
“employee” status and the scope of RLA protection to
“every air pilot or other person who performs any work
as an employee or subordinate official of [a] carrier or
carriers, subject to its or their continuing authority to su-
pervise and direct the manner of rendition of his service.”
(Emphasis added.) .
In Trans World, the Eighth Circuit applied 45 U.S.C.
§ 181 and held that, under the RLA, a carrier’s new hire
trainees who had not completed their training prior to the
end of a strike were not permanent employees, and were
subject to displacement by returning strikers. See Trans
World, 819 F.2d at 845-46. The facts of Trans World are
indistinguishable from those in this case. In Trans World,
the carrier hired and trained large numbers of would-be
permanent replacement employees to continue operations
during a flight attendant strike. At the conclusion of the
strike, approximately 463 of the new hires had not com-
pleted flight attendant training.
After the strike, the carrier gave the trainees permanent
replacement status and job placement preference over re-
turning strikers. As in this case, Trans World argued that
its trainees constituted permanent replacements under the
RLA because the carrier had told the trainees that they
were permanent employees, and paid them a salary. The
Eighth Circuit rejected the carrier’s argument finding that
“those flight attendants holding a trainee status at the
end of the strike may not be retained over striking em-
ployees.” Trans World, 819 F.2d at 842. As the court
explained:
—s
lla
The trainees in question, although hired by TWA,
never performed any services for TWA under its
supervision prior to the Union’s offer to return
to work. Thus, they cannot be considered em-
ployees within the meaning of the RLA.
Trans World, 819 F.2d at 845-46. The Trans World court
thus held that carriers cannot refuse to reinstate strikers
by treating trainees as permanent replacements, and that
carriers cannot reserve job positions for trainees once stri-
kers unconditionally offer to return to work. Trans World,
819 F.2d at 845-47; see also Railway Labor Executives’
Ass’n v. Wheeling Acquisition Corp., 736 F. Supp. 1397,
1403 (E.D. Va. 1990) (“RLA rights are conferred only on
‘employees’ of a ‘carrier’ who currently perform work for
that carrier.’’)
Similarly, in United Air Lines, the Seventh Circuit held
that “unless a person has performed services for the em-
ployer under that employer’s supervision he is not an em-
ployee for purposes of the RLA.”’ United Air Lines, 802
F.2d at 913. In United Air Lines, the carrier recruited
and began training some 500 pilots (the Group of 500)
prior to the commencement of a pilot strike. United Air
Lines offered 375 of these recruits, who had successfully
completed their training, employment beginning on
May 17, 1985, the day ALPA went on strike. All but a
few of the Group of 500 honored ALPA’s picket lines. In
response, United Air Lines stated that it would not hire
any member of the Group of 500 who had failed to report
to work, except for cases involving personal hardship or
other extenuating circumstances.
ALPA filed suit alleging that United Air Lines’s actions
with respect to the Group of 500 violated the RLA. The
district court found for the Group of 500 concluding that
they had become employees on May 17, 1985, the day the
strike began, and that United Air Lines’s treatment of
these pilots after that date violated the RLA, 45 U.S.C.
12a
§ 152, Fourth. The Seventh Circuit reversed holding that
the Group of 500 were not “employees” under the RLA
entitled to the protections of 45 U.S.C. § 152, Fourth.
United Air Lines, 802 F.2d at 911 n.17. The Seventh
Circuit opined:
These pilots never performed any work for United
nor did they ever submit to United’s supervision
of them in their work. By its own terms, the
definition of employee under the RLA would ex-
clude our giving the Group of 500 employee stat-
us.
United Air Lines, 802 F.2d at 911. The court went on to
state that ‘‘trainees ... simply do not fall within the RLA’s
definition of employee.”’ United Air Lines, 802 F.2d at
913.
2. Eastern’s Trainees
Based upon the persuasive reasoning in Trans World
and United Air Lines, we hold that Eastern’s new hire
trainee pilots did not obtain the status of “permanent em-
ployees.”’ First, the trainees were not qualified to perform
the work Eastern’s pilots ordinarily discharged. As pre-
viously stated, under FAA guidelines, Eastern’s trainee
pilots are required to complete a series of FAA exami-
nations and obtain an FAA pilot certificate before oper-
ating on Eastern’s regular revenue flights. To satisfy these
requirements, Eastern enrolled its new-hire pilots in a
training program which, in some cases, lasted as long as
four months. Eastern’s training program included ground
school instruction, examinations, flight simulator training,
and IOE.® Consequently, a trainee would only become qual-
’ We reject Eastern’s contention that IOE is not part of the training/
qualification process. See, ¢.g., Trans World, 819 F.2d at 841 n.2 (ex-
plaining that flight attendants are not qualified to perform revenue
service until they complete IOE); Rosenbalm Aviation, 15 N.M.B. 313,
314-15 (1988) (holding that IOE is part of training mandated by the
13a
ified to fly regular revenue flights for Eastern when the
trainee successfully completes the training program, passes
the FAA examinations, obtains an FAA pilot certificate
and secures a release from the FAA.
Second, Eastern’s trainees were not actually performing
the work ordinarily discharged by the former strikers. As
the district court correctly reasoned:
Trainees, to be sure, are not qualified to perform
in the stead of striking pilots. In fact, they may
never be. Optimistically, they may ultimately fill
the shoes of the striking employees. It would be
presumptuous and premature, therefore, to af-
ford trainees permanent replacement status which
would otherwise permit Eastern to keep them in
its employ notwithstanding the termination of the
strike.
Eastern suggests that the distinction between trainees
and returning strikers is an artificial one because the for-
mer strikers, like the trainees, must submit to training
prior to again flying regular revenue flights. According to
ALPA, “striking pilots can be requalified within a matter
of days.”” Eastern maintains, however, that “having now
been out of the cockpit for over 10 months, it would take
a minimum of 10 days of training, to requalify a returning
striker, provided that the pilot were returning to his or
her prestrike category position,’ and assuming the pilot
did not return to his or her prestrike category position,
the process could take “‘up to 30 days.” Our review of
the record convinces us that the distinction between train-
ees and Eastern’s returning pilots is real. First, the former
strikers, unlike the trainees, have actually flown regular
revenue flights for Eastern. Second, the returning pilots
FAA, and that “{aJn individual may not serve as part of the cockpit
crew in revenue service until he has successfully completed the training
program.’’). As Eastern acknowledges, IOE is necessary to obtain FAA
certification.
l4a
are only required to complete requalification training.
Whether the duration of the requalification training is a
“matter of days,’’ ten days, or even thirty days, that per-
iod is substantially less than the time required to train
and qualify the new hire pilots.
Despite the fact that Eastern’s trainee pilots may never
be qualified to fly regular revenue flights, Eastern argues
that they are permanent employees because Eastern im-
mediately placed the pilot trainees on its payroll, and gave
them seniority numbers. We do not consider these unilat-
eral actions to be dispositive of whether EF:astern’s trainees
are permanent employees. As the Eighth Circuit concluded
in Trans World:
The RLA does not extend its coverage based upon
the employer’s labelling of persons as employees
or the payment of salary. Rather, RLA coverage
is determined by the work the person performs
under supervision of the employer. This perform-
ance factor is determinative in trainee situations
because it is the only requirement that the stat-
ute explicitly includes. Thus, clear statutory lan-
guage supports the conclusion that the trainees
are not employees protected by the RLA because
these trainees were not “performing any work’’
of the carrier by any stretch of the imagination.
Trans World, 819 F.2d at 846 (emphasis in original).
Further, Eastern urges this court to disregard the
Eighth Circuit’s decision in Trans World and the Seventh
Circuit’s holding in United Air Lines because, according
to Eastern, a new hire recruit need not attain “employee”
status under the RLA to be deemed a permanent replace-
ment. We reject Eastern’s urgings. Acceptance of East-
ern’s analysis would result in the creation of two classes
of common carrier employees; “permanent employees’’ en-
titled to the benefits and privileges of the RLA and bound
15a
by its duties and penalties, and a second class of ‘‘perm-
anent employees” (the trainees) whose employer/employee
relationship is not governed by the regulatory framework
established by the RLA, and who are not extended the
same benefits and obligations available to the other class
of “‘permanent employees.”’ No authority leads us to create
such an anomalous situation.
3. National I and National II
Eastern argues that National IJ is controlling and re-
quires that we hold that its trainees are permanent re-
placements. In National I, the Fifth Circuit held that the
carrier had exceeded the permissible bounds of self-help
by discharging employees who had engaged in an unlawful
wildcat strike; the carrier “‘was entitled only to hire re-
placements for the strikers in order to operate its airline.”
416 F.2d at 1007. In reversing the district court, the Fifth
Circuit held that, under the RLA, the carrier could only
refuse to reinstate former strikers if the strikers’ jobs had
been “‘filled’’? by permanent replacements “either at the
time of the discharge or before the time the strike would
have run its course.’”’ National I, 416 F.2d at 1007. The
Fifth Circuit remanded the case to the district court to
determine the number of positions “‘filled’’ by replace-
ments. On remand, the district court held that the carrier
had “‘hired’’ sixty-seven replacements as of the date that
the strikers would have returned to work. National Air-
lines, Inc. v. International Ass’n of Machinists, 308 F.
Supp. 179, 182 (S.D. Fla.), rev’d, 480 F.2d 957 (5th Cir.
1970), cert. denied, 400 U.S. 992 (1971).
The Fifth Circuit again reversed the district court, and
remanded the case for a determination of the number of
striking employees who had been “‘replaced’’ by new hire
employees as of the date the strike would have ended. ‘In
cases of replacement of a striker,”’ the court concluded:
the critical time is when the arrangements with
the replacement worker become fixed and irrev-
16a
ocable. Thus, if an employer has the intention to
bind itself to a firm contract of employment, and
the employee has accepted a specific job assign-
ment, the replacement is “hired’’ even though
subsequently he may be divested of the job for
failure to pass medical or security clearance.
430 F.2d at 961 (citations omitted).
Although National I and National II are instructive, we
do not agree with Eastern that these cases compel a re-.
versal of the district court. First, in National II, the Fifth
Circuit carefully noted that the critical time for determin-
ing when an employee is replaced is when the arrange-
ments with the worker become “fixed and irrevocable.”
430 F.2d at 961. In this case, although the new hires were
on the payroll, as trainees their employment status could
hardly be classified as ‘‘fixed and irrevocable” given that
they could only fly regular revenue flights for Eastern if
they successfully completed the training program and sat-
isfied FAA requirements.
Second, National II did not, as does the present case,
involve the employment status of trainees who could only
work for the employer when they satisfactorily completed
a lengthy training program and secured the requisite gov-
ernmental releases and certificates. Nothing in National
II permits carriers to refuse to reinstate former strikers
by reserving available job positions for a significant period
of time while a pool of unqualified trainees completes this
process.
Third, we read the Fifth Circuit’s dictum that a “re-
placement is ‘hired’ even though subsequently he may be
divested of the job for failure to pass medical or security
clearance” to mean that an employer can treat a new hire
as a permanent replacement where, but for the failure to
subsequently satisfy a technical qualification, the new hire
would otherwise be considered a permanent employee. The
prerequisites at issue in this case (i.e. satisfactory com-
17a
pletion of Eastern’s training program and compliance with
the FAA’s requirements) do not amount to technicalities
which would allow Eastern, under National II's reasoning,
to treat a trainee as a permanent replacement prior to
the trainee satisfying these job requirements. Conse-
quently, we hold that the Mackay exception does not apply
in this case because Eastern’s trainees were not permanent
replacements.
4. RLA Policy
Our conclusion, that Eastern is required to reinstate
returning pilots prior to awarding pilot positions to new
hire pilots, is consistent with RLA policy. Eastern’s de-
cision to refuse to reinstate returning pilots while reserv-
ing available pilot positions for unqualified trainee pilots,
did not promote one of the declared purposes of the RLA
which is to “avoid any interruption to commerce or to the
operation of any carrier.” 45 U.S.C. § 151a. As the district
court reasoned:
Hiring trained, qualified pilots is congruous with
the undisputed purpose of the RLA: providing
for uninterrupted transportation service, thereby
maintaining the status quo. Enlisting a fleet of
unqualified trainees for potential future hiring
needs, however, satisfies a concern significantly
more remote. To be sure, trainees cannot fly rev-
enue raising flights until they have completed the
training program. Their utility to the airline is
contingent upon becoming qualified for the po-
sition. Thus, contracting with unqualified persons
for future employment as pilots did not serve to
fill the void left by the striking pilots, at least
not until some later date.
Further, we agree with the Eighth Circuit’s observation
in Trans World that:
to amass a trainee pool capable of replacing the
entire striking workforce at some future date
18a
after the strike has ended .. . is inconsistent with
the RLA’s grant of protections to those persons
who actually perform services for the employer.
819 F.2d at 846.
Moreover, Eastern’s treatment of the returning pilots
strikes a fundamental blow to the union and the collective
bargaining process. See Trans World, 103 L. Ed. 2d at
471 (“‘we should hesitate to imply limitations on all but
those forms of self-help that strike a fundamental blow to
union or employer activity and the collective bargaining
process itself.’’). Not only does Eastern’s decision to give
preference to trainees over returning strikers discourage
employees from exercising their rights to organize and to
strike, it undermines one of the RLA’s central goals: the
preservation of the employer-employee relationship both
during and after a strike. See Fleetwood Trailer, 389 U.S.
at 378; Empresa Ecuatoriana de Aviacion, S.A. v. District
| Lodge No. 100, 690 F.2d 838, 845 (11th Cir. 1982), cert.
| dismissed, 463 U.S. 1250 (1983).
5. Preliminary Injunction
Finally, we find that the district court’s preliminary in-
junction is not impermissibly vague. Rule 65(d) of the Fed-
| eral Rules of Civil Procedure simply requires “that an
| ordinary person reading the court’s order should be able
to ascertain from the document itself exactly what conduct
is prescribed.”’ See C. Wright and A. Miller, 11 Federal
Practice and Procedure § 2955 at 536-37 (1973 & Supp.
i990}, see also Williams v. City of Dothan, Ala., 818 F.2d
755, 76i (ith Cir. 1987) (‘As this court has noted, Rule
65(d) sheuld not be applied strictly; rather the inquiry
should be whether the parties subject to the injunctive
order understood their obligations under the order.”’). Here,
the district court’s order clearly requires Eastern to rein-
; state the number of former strikers necessary to fill those
pilot positions unlawfully reserved for trainees at the end
! of the strike. Because the district court has yet to deter-
a
19a
mine the specific number of Eastern pilot positions covered
by the preliminary injunction and other issues, we remand
the case to the district court.
CONCLUSION
For the foregoing reasons, we hold that the district
court properly concluded that the RLA requires Eastern
to reinstate returning strikers prior to awarding pilot po-
sitions to new hire pilots in training. We remand this case
to the district court for further proceedings.
AFFIRMED and REMANDED FOR FURTHER
PROCEEDINGS.
ANDERSON, Circuit Judge, dissenting:
Respectfully, I dissent. In my judgment, binding prec-
edent in this circuit requires reversal. In a very similar
context, the Former Fifth Circuit held that a newly-hired
permanent employee is not displaced by a returning striker
“even though subsequently he may be divested of the job
for failure to pass medical or security clearance.” National
Airlines, Inc. v. International Ass’n of Machinists and Aer-
ospace Workers, 430 F.2d 957, 961 (5th Cir. 1970). I do
not agree with the majority that the conditions of em-
ployment in National Airlines—i.e., medical or security
clearance—can be dismissed as merely technical. In the
airline industry, the medical condition and security clear-
ance of workers is not technical.
20a
APPENDIX B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 89-1630-CIV-DAVIS
EASTERN AIR LINES, INC.,
Plaintiff,
Vv.
AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL, and EASTERN
MASTER EXECUTIVE COUNCIL,
Defendants.
FILED
U.S. Dist. Ct.
S. D. Of Fla. Miami
August 2, 1990
ROBERT M. MARCH
ORDER
THIS MATTER is before the court on the following Motions:
(1) AIR LINE PILOTS ASSOCIATION, INTERNA-
TIONAL’s (‘““ALPA’’) Motion for Preliminary Injunctive
Relief under Count I of ALPA’s Counterclaims;
(2) ALPA’s Motion for Summary Judgment; and
(3) EASTERN AIR LINES, INC.’s Motion for Summary
Judgment.
I. BACKGROUND
The facts material to the issue presently before the court
are largely undisputed. On March 4, 1989, after fully ex-
hausting the dispute resolution mechanisms of the Railway
/
2la
Labor Act! (““RLA’’) the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO (“IAM’’) com-
menced a strike against Eastern Air Lines, Inc.
(“EASTERN’’). On that same day, the AIR LINE PILOTS
ASSOCIATION, INTERNATIONAL (“ALPA’’), by vote of its
Master Executive Council, honored the I[AM’s picket lines.
In an action before this court, ALPA’s strike was held to
be a lawful sympathy strike. Eastern Air Lines, Inc. v.
Air Line Pilots Ass’n, Intern., 710 F. Supp. 1342 (S.D.
Fla.), affd, No. 89-5229 (11th Cir. June 7, 1989).
During the ALPA strike, EASTERN hired new pilot
recruits to fill pilot positions left vacant because of the
strike. Under Federal Aviation Administration (‘“FAA’’)
guidelines, trainee pilots must complete a series of FAA
examinations, obtain an FAA pilot certificate, and secure
a release from the FAA before operating EASTERN air-
craft on regular revenue flights. Each new hire pilot, ir-
respective of level of experience, is required under these
guidelines to complete training successfully before flying
regular revenue flights. Under EASTERN’s own regula-
tions, pilot trainees and current pilot employees must
undergo periodic training to familiarize themselves with
specific EASTERN procedures and aircraft type. In order
to meet the above requirements, EASTERN’s new hire pil-
ots were placed in a six to eight-week EASTERN training
program. The program generally includes ground school
instruction, flight simulator training, and the completion
of training flights under the direction of EASTERN and/
or FAA flight instructors.
By the middle of August 1989, several striking ALPA
pilots had made individual unconditional offers to return
to work for EASTERN. On or about August 11, 1989,
EASTERN announced that EASTERN pilot positions were
no longer available to former strikers and that former
‘45 U.S.C. §§ 151-188 (1982).
22a
strikers wishing to return to work would be placed on
inactive status on a preferential recall list for future pilot
positions that might become available. At this point, ap-
proximately 800 new hire replacement pilots were still in
training. On November 22, 1989, ALPA informed EAST-
ERN of its unconditional termination of the pilot strike
and that all former strikers were immediately and uncon-
ditionally available to return to work. By this date, ap-
proximately 250 new hire replacement pilots remained in
training. From at least early August to the present date,
EASTERN has filled vacant pilot positions from the ranks
of its new hire pilots rather than from the ALPA pilots
who had unconditionally offered to return to service.
On August 11, 1989, EASTERN filed this declaratory
judgment action. ALPA has counterclaimed for injunctive
and declaratory relief. It is undisputed in this lawsuit that
replacement pilots who had actually begun flying regular
revenue flights before ALPA pilots made their uncondi-
tional offers to return to work may be accorded permanent
replacement status, and need not be displaced to create
positions for returning strikers. Thus, both parties agree
that the only issue to be determined at this juncture is
the reinstatement rights of the returning strikers vis-a-vis
those new hire pilots who were still in training, and who
had not yet begun flying regular revenue flights (‘‘train-
ees”) when the ALPA pilots made unconditional offers to
return to work.
II. DISCUSSION
ALPA now moves for summary judgment as to EAST-
ERN’s claims and for a Preliminary Injuncticn under Count
I of its Counterclaim. EASTERN has filed a Cross Motion
for Summary Judgment on its Complaint for Declaratory
Relief.
A. SUMMARY JUDGMENT STANDARD
A party seeking summary judgment bears the burden
of demonstrating that there exists no genuine dispute as
23a
to any material fact. Fed. R. Civ. P. 56(c) and (e); An-
derson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
All reasonable doubts as to the facts are to be resolved
in favor of the party opposing summary judgment. Mer-
cantile Bank & Trust v. Fidelity Deposit Co., 750 F.2d
838, 841 (11th Cir. 1985). While the burden on a party
seeking summary judgment is great, the opposing party
has a duty to present affirmative evidence in order to
defeat a properly supported motion for summary judg-
ment. Anderson, 477 U.S. at 250. As stated at the outset,
the facts in the instant dispute are largely undisputed, and
both parties have filed Motions for Summary Judgment.
B. THE RAILWAY LABOR ACT
Within the jurisprudence of reinstatement rights under
the National Labor Relations Act (““NLRA’’), an employ-
er’s refusal to reinstate former strikers constitutes an un-
fair labor practice, unless the employer can show that his
action is supported by a legitimate and substantial business
justification. NLRB v. Fleetwood Trailer Co., 389 U.S. 375,
378 (1967); NLRB v. Great Dane Trailers, Inc., 388 U.S.
26, 34 (1967). As first illustrated by the Supreme Court
in NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333
(1938), one such justification arises when, in an economic
strike, returning strikers’ jobs have been filled by workers
hired as permanent replacements during the strike in order
for the employer to continue operations. Fleetwood Tratler,
389 U.S. at 379. In such cases, it is routinely held that
an employer is not bound to discharge the permanent re-
placements in order to make room for returning strikers.
See, e.g., Belknap, Inc. v. Hale, 463 U.S. 491, 500 (1983);
Fleetwood Trailer, 389 U.S. at 378; NLRB v. Erie Resistor
Corp., 373 U.S. 221, 232 (1963); Mackay, 304 U.S. at 345-
47. In short, the employer’s interest in continuing oper-
ations is ‘deemed to outweigh the damage to concerted
activities caused by permanently replacing strikers.’ Erie
Resistor, 373 U.S. at 232. While the burden of proving
that the replacements were hired as permanent employees
24a
falls squarely on the shoulders of the employer, Fleetwood
Trailer, 389 U.S. at 378, the law allows for a considerable
degree of contingency in the replacements’ employment
contract. See Belknap, 463 U.S. at 502-04.
Moreover, the issue of reinstatement rights has focused
on the rights of the returning strikers, not on the rights
or degree of protection afforded to the replacement work-
ers.2 Under Belknap, the rights of the replacement em-
ployees are enforceable even if antithetical to the rights
of the returning strikers. A corollary follows: the rights
of the replacement employees do not determine whether
the employer has an obligation to reinstate past strikers.*
Although the principles discussed above arose under the
National Labor Relations Act, courts have uniformly held
that the general rule of Mackay applies with equal force
in cases arising under the Railway Labor Act* (‘““RLA’’).
See Trans World Airlines v. Independent Fed’n of Flight
Attendants, 489 U.S. 426 (1989); National Airlines, Inc.
v. International Ass’n of Machinists & Aerospace Workers,
416 F.2d 998 (5th Cir. 1969), appeal after remand, 430
F.2d 957 (5th Cir. 1970). In Trans World Airlines, supra,
the Supreme Court recently approved the borrowing of
precedent developed under the NLRA in order to aid the
analysis of reinstatement rights under the RLA. The Court
borrowed extensively from common law developed under
the NLRA, but cautioned that because of the differing
2 As will be more fully developed in Part II.C., post, the inquiry as
to whether the replacements are permanent is relevant not to determine
the replacements’ entitlement, but to determine the existence of a le-
gitimate and substantial business justification.
* Again, the status of the replacements is relevant for the purpose
of determining whether an employers’ decision not to reinstate return-
ing strikers is justified. See supra note 2. Here, as ALPA admits,
EASTERN might be liable in contract to the replacements, irrespective
of whether they are covered by the RLA.
*45 U.S.C. §§ 151-188 (1982).
TT
25a
policies inherent in the two Acts, NLRA principles ‘‘cannot
be imported wholesale into the railway labor arena.” Id.
at 1233 (quoting Brotherhood of R.R. Trainmen v. Jack-
sonville Terminal Co., 394 U.S. 369, 383 (1969)).
In the context of the RLA, the former Fifth Circuit,®
after recognizing the common carrier’s duty to- make all
reasonable efforts to continue its operations during a strike,
held the hiring of permanent replacements to be consistent
with the attempt to restore service. National Airlines, Inc.
v. International Ass’n for Machinists and Aerospace Work-
ers, 416 F.2d 998, 1006 (5th Cir. 1969) (“‘National I’). In
its opinion after remand, the Fifth Circuit provided guid-
ance in identifying replacement workers, noting as critical
the time when arrangements with the replacement workers
become fixed and irrevocable:
Thus, if an employer has the intention to bind
itself to a firm contract of employment, and the
employee has accepted a specific job assignment,
the replacement is ‘hired’ even though subse-
quently he may be divested of the job for failure
to pass medical or security clearance.
National Airlines, Inc. v. International Ass’n of Machinists
and Aerospace Workers, 430 F.2d 957, 961 (5th Cir. 1970)
(‘National IT’), cert. denied, 400 U.S. 992 (1971). The
court went on to stress, however, that a mere offer and
acceptance is not always enough. The court also found
important ‘‘the necessity of actually coming on the payroll’’
and the commencement of actual employment. In remand-
ing the issue to the district court for further factual de-
terminations as to whether the strikers had been replaced,
the court concluded that “[iJn the present case, the for-
mation of an employment contract with a replacement,
’ The Eleventh Circuit adopted as binding all decisions of the former
Fifth Circuit handed down by October 1, 1981. Bonner v. City of Pri-
chard, Ala., 661 F.2d 1206 (11th Cir. 1981).
26a
which never ripens into actual employment, may not dis-
place the statutory right of the discharged employee to
return to the status quo.” Jd. Thus, National II teaches
that something more than an employment contract be-
tween the employer and replacement employee must exist
before the striking employee’s status is supplanted.
Whether participating in a training program constitutes
that ‘‘something more” is the question now before this
court.
C. STRIKERS OR TRAINEES?
No authority binding on this court has directly addressed
the issue of whether replacements still in training at the
time a strike is called off may be accorded permanent
replacement status. The United States Court of Appeals
for the Eighth Circuit, however, has answered that ques-
tion in the negative. Independent Fed’n of Flight Attend-
ants v. Trans World Airlines, 819 F.2d 839 (8th Cir. 1987),
rev'd on other grounds, 489 U.S. 426 (1989) (“Flight At-
tendants’’). In Flight Attendants, the Eighth Circuit held
that replacement personnel (flight attendants) who had not
completed training prior to the end of an IFFA strike
could not be accorded permanent replacement status under
the RLA.’ Jd. In arriving at this conclusion, the court
observed that ““RLA coverage is determined by the work
the person performs under supervision of the employer.”
Id. at 846; accord Air Line Pilots Ass’n v. United Airlines,
802 F.2d 886, 913 (7th Cir. 1986) (“unless a person has
‘The Supreme Court granted certiorari on an issue regarding the
status of cross-over employees, but did not address the issue of re-
placement trainees. Trans World Airlines v. Independent Federation of
Flight Attendants, 489 U.S. 426 (1989).
7 The RLA provides coverage to “every air pilot or other person who
performs any work as an employee or subordinate official of such car-
rier or carriers, subject to its or their continuing authority to supervise
and direct the manner of rendition of his service.”’ 45 U.S.C. § 181.
« I ae A NY i RE ar teh nll Ad
27a
performed services for the employer under that employer’s
supervision he is not an employee for purposes of the
RLA”’), cert. denied, 480 U.S. 946 (1987).
To the extent that the pilot trainees in the instant case
had not performed the work ordinarily discharged by the
striking pilots, the trainees were not employees protected
by the RLA. Trainees, to be sure, are not qualified to
perform in the stead of the striking pilots. In fact, they
may never be. Optimistically, they may ultimately fill the
shoes of the striking employees. It would be presumptuous
and premature, therefore, to afford trainees permanent
replacement status which would otherwise permit EAST-
ERN to keep them in its employ notwithstanding the ter-
mination of the strike. As the Eighth Circuit has remarked:
[T]o amass a trainee pool capable of replacing
the entire striking workforce at some future date
after the strike has ended . . . is inconsistent with
the RLA’s grant of protections to those persons
who actually perform services for the employer.
Flight Attendants, 819 F.2d at 846.
That EASTERN trainees do not enjoy permanent re-
placement status under RLA is consistent with the bal-
ancing analysis germane to NLRA disputes. See Mackay,
304 U.S. 333 (1938). The inquiry that has continuously
controlled the issue of reinstatement rights under the
Mackay rule is whether the failure to reinstate returning
strikers is necessary for the continued operation of the
business. If so, the action is deemed to be a legitimate
and substantial business justification. Fleetwood Trailer,
389 U.S. at 378. The need to continue employer’s oper-
ations is particularly salient here, in light of the RLA’s
concern for the continued operation of this country’s vital
network of transportation industries.
While this court agrees that EASTERN had a legitimate
and substantial business justification to replace striking
28a
pilots with replacement pilots who could promptly assume
the requisite duties and responsibilities of striking pilots,
the same does not hold true with regard to trainees. Hiring
trained, qualified pilots is congruous with the undisputed
purpose of the RLA: providing for uninterrupted trans-
portation service, thereby maintaining the status quo. En-
listing a fleet of unqualified trainees for potential future
hiring needs, however, satisfies a concern significantly
more remote. To be sure, trainees cannot fly revenue rais-
ing flights until they have completed the training program.
Their utility to the airline is contingent upon becoming
qualified for the position.* Thus, contracting with unqual-
ified persons for future employment as pilots did not serve
to fill the void left by the striking pilots, at least not until
some later date.
And, the inquiry now is whether Eastern has a legiti-
mate and substantial business justification for preferring
unprepared trainees over striking pilots who have returned
to work. In this vein, the Supreme Court has held that:
In some situations, “legitimate and substantial
business justifications” for refusing to reinstate
striking employees who engaged in an economic
strike, have been recognized. One is when the
jobs claimed by the strikers are occupied by work-
ers hired as permanent replacements during the
strike in order to continue operations.
* Although the former Fifth Circuit stated in Nationc: IJ, 430 F.2d
at 961, that included among those “hired” as permanent replacements,
are persons ‘“‘subsequently ... divested of the job for failure to pass
medical or security clearance,”’ ante at 7, this court does not read that
passage to mean that a trainee, unqualified for the position ne is seek-
ing, must be accorded permanent replacement status. Even if the court
would accord such status to an otherwise qualified person when not
able to meet medical or security clearance, that does not compel the
same conclusion for a person inherently incapable of performing the
job in question because of lack of skill and training.
eet SD le th lL at, a tO AO Mar
.
:
y
4
3
:
a
a
7
29a
Fleetwood Trailer, 389 U.S. at 379 (emphasis added). Thus,
EASTERN has no legitimate business justification in choos-
ing to employ trainees who have not yet occupied pilot
positions, over unconditionally available, striking pilots,
even if it has enforceable contractual obligations to the
trainees. Id.; cf. Belknap, 463 U.S. at 512 (employer may
be liable in contract to ousted replacement pilots, even
though forced to reinstate strikers in an unfair labor prac-
tices dispute).
III. CONCLUSION
That the striking pilots are entitled to displace trainees
does not necessarily imply that Eastern acted unreasonably
in cultivating a sizable training pool of potential pilots to
assuage a future crisis. But this court must balance com-
peting interests: the rights of striking pilots to return to
their jobs against management’s efforts to maintain the
status quo throughout the strike. After careful consider-
ation, this court concludes that the Mfackay balance weighs
in favor of reinstating the striking pilots in place of the
trainees. Accordingly, it is hereby
ORDERED AND ADJUDGED as follows:
[1] that ALPA’s Motion for Preliminary Injunctive Re-
lief under Count I of ALPA’s Counterclaims be
GRANTED;
[2] that ALPA’s Motion for Summary Judgment be
GRANTED;
[3] that EASTERN AIR LINES, INC.’s Motion for Sum-
mary Judgment be DENIED.
30a
DONE AND ORDERED in Chambers at Miami, Florida,
this 3lst day of July, 1990.
/s/ Edward B. Davis
EDWARD B. DAVIS
UNITED STATES DISTRICT JUDGE
ec: Counsel of record
rap/hms 073190
3la
APPENDIX C
THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 90-5658
EASTERN AIR LINES, INC.,
Plaintiff-Counterclaim
Defendant-Appellant,
versus
AIR LINE PILOTS ASSOCIATION
INTERNATIONAL, EASTERN AIR
LINES MASTER EXECUTIVE COUNCIL,
Defendants-Counterclaim
Plaintiffs-Appellees.
On Appeal from the United States District Court
for the Southern District of Florida
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCIUT
MARCH 15, 1991
MIGUEL J. CORTEZ
CLERK
ON PETITION(S) FOR REHEARING AND
SUGGESTION(S) OF REHEARING EN BANC
(Opinion December 20, 1990 , 11th Cir., 19 , __ F.2d
me
32a
Before: HATCHETT and ANDERSON, Circuit Judges, and
ESCHBACH", Senior Circuit Judge.
PER CURIAM:
( X ) The Petition(s) for Rehearing are DENIED and no
member of this panel nor other Judge in regular active
service on the Court having requested that the Court be
polled on rehearing en banc (Rule 35, Federal Rules of
Appellate Procedure; Eleventh Circuit Rule 35-5), the Sug-
gestion(s) of Rehearing En Banc are DENIED.
( ) The Petition(s) for Rehearing are DENIED and the
Court having been polled at the request of one of the
members of the Court and a majority of the Circuit Judges
who are in regular active service not having voted in favor
of it (Rule 35, Federal Rules of Appellate Procedure; Elev-
enth Circuit Rule 35-5), the Suggestion(s) of Rehearing En
Banc are also DENIED.
( ) A member of the Court in active service having
requested a poll on the reconsideration of this cause en
banc, and a majority of the judges in active service not
having voted in favor of it, Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:
/s/ Joseph W. Hatchett
UNITED STATES CIRCUIT JUDGE
* Honorable Jesse E. Eschbach, Senior U.S. Circuit ORD-42
Judge for the Seventh Circuit, sitting by designation. (9/90)
ae
33a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 90-5658
D.C. Docket No. 89-1630-Civ-EBD
EASTERN AIR LINES, INC.,
Plaintiff-Counterclaim
Defendant-Appellant,
SA eh NN
versus
AIR LINE PILOTS ASSOCIATION
INTERNATIONAL, EASTERN AIR
LINES MASTER EXECUTIVE COUNCIL,
Defendants-Counterclaim
Plaintiffs-Appellees.
Sr ew a ee Sm
. Appeal from the United States District Court
a: or the Southern District of Florida
Before HATCHETT and ANDERSON, Circuit Judges, and
ESCHBACH"’, Senior Circuit Judge.
JUDGMENT
This cause came to be heard on the transcript of the
record from the United States District Court for the
Southern District of Florida, and was argued by counsel;
ANDERSON, Circuit Judge, dissented and filed an opinion.
* Honorable Jessee E. Eschbach, Senior U.S. Circuit Judge for the
Seventh Circuit, sitting by designation.
34a
ON CONSIDERATION WHEREOF, it is now hereby
ordered and adjudged by this Court that the judgment of
the said District Court in this cause be and the same is
hereby AFFIRMED; and that this cause be and the same
is hereby REMANDED to said District Court in accord-
ance with the opinion of this Court;
IT IS FURTHER ORDERED that plaintiff-counterclaim
defendant-appellant pay defendants-counterclaim plaintiffs-
appellees the costs on appeal to be taxed by the Clerk of
this Court.
Entered: December 20, 1991
For the Court: Miguel J. Cortez, Clerk
By: /s/ Karleen McNabb
Deputy Clerk
ISSUED AS MANDATE: March 26, 1991
- es
35a
APPENDIX E
(ATTACHMENTS OMITTED)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 89-1630-CIV-DAVIS
EASTERN AIR LINES, INC.,
Plaintiff,
v.
AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL, and EASTERN AIR
LINES MASTER EXECUTIVE COUNCIL
Defendants.
DECLARATION OF ALAN C. GIBSON
I, Alan C. Gibson, do hereby swear and affirm as fol-
lows:
1. I am Staff Vice President, Labor Relations at Eastern
Air Lines, Inc. (“Eastern’’), a position I assumed on Au-
gust 11, 1987. In this position, I have day-to-day respon-
sibility for the development, implementation and
administration of all labor relations policies and collective
bargaining agreements of Eastern, including those gov-
erning the employment of Eastern pilots represented by
the Air Line Pilots Association, International (‘‘ALPA’’).
With the exception of a five month period in 1966, I have
been continuously employed by Eastern since 1964 in var-
ious positions concerning either the administration of labor
relations policies governing the employment of Eastern
pilots represented by ALPA, pilot crew scheduling or pilot
36a
bidding and utilization. I offer this Declaration to provide
factual information supporting Eastern’s position that its
new hire pilots in training are properly treated by Eastern
as permanent replacements for the formerly striking pilots
and, like all other Eastern pilots, properly hold a seniority
date as of their first day of training at Eastern. I also
offer this Declaration to clarify certain misrepresentations
reflected in the Declaration of J. Randolph Babbitt (“Bab-
bitt Dec.’’) submitted by ALPA in support of its motion
for summary judgment and for preliminary injunctive re-
lief.
I. BACKGROUND
| 2. ALPA’s Offer To Return To Work. At 5:30 p.m.
; EST on Wednesday, November 22, 1989, I received a tele-
phone call from Charles Copeland, Master Executive Chair-
man for ALPA at Eastern. Mr. Copeland read aloud to
me a letter which he stated was then being faxed to me.
The letter stated that ALPA was terminating its strike
against Eastern which had begun on March 4, 1989 and
was making an unconditional offer to return to work on
behalf of pilots still on strike.’
3. Pilot Employment As Of ALPA’s Offer. Of the ap-
proximately 3500 active pilots at Eastern as of March 3,
1989, 214 never honored ALPA’s strike, and 754 had par-
ticipated in the strike for some time but had individually
offered to return to work prior to ALPA’s offer on No-
vember 22 (“crossover pilots’). Of the crossover pilots,
844 had been recalled to active service, with their full
seniority, prior to ALPA’s November 22 offer to return;
30 had been recalled but had not yet begun retraining as
of that date; and 94 had not been recalled but remained
on the preferential recall list as of that date. In addition
‘Mr. Copeland subsequently advised Eastern that individual striking
pilots might want to continue to honor the picket line of the IAM,
which continues on strike to this date.
2 J ee ie | a
alates
lt tah te sme eave
37a
to the 968 crossover pilots, during the ALPA strike East-
ern hired 1223 new hire pilots, of whom 936 remain in
Eastern’s employment today. Of the new hires still at
Eastern, 709 had completed their training and were in line
service as pilots as of 5:30 p.m. on November 22, 1989;
227 new hires remained in training. Of those 227 new hire
pilots in training on November 22, 19 remained in training
as of January 12, 1990. Of the remaining, 183 completed
training and are now at work in revenue service; 25 have
left Eastern’s employ.
4. Eastern Delayed New Hire Training To Accom-
modate Returning Strikers. Following ALPA’s strike on
March 4, 1989, only 6% of Eastern’s pilots elected to
report for work, and Eastern was therefore forced to can-
cel all but a small portion of its schedule.? On March 6,
1989 Eastern’s President, Phil Bakes, publicly pleaded with
Eastern’s pilots to return to work in order ‘‘to save East-
ern and to save your jobs,” and the jobs of thousands of
other Eastern employees who were promptly furloughed
due to the strike.? On March 6-8, 1989, Eastern unsuc-
cessfully sought an injunction to compel ALPA to termi-
nate pilot participation in the strike. Subsequently, on
From March 4 through June 8, Eastern was able to operate only
its Eastern Shuttle, its South American routes, and a few other do-
mestic routes, in total approximately 10% of its pre-strike schedule.
On March 6, 1989 Eastern promulgated Return-To-Work procedures
to govern the reinstatement of striking pilots to available positions.
Attachment A. The Procedures clearly indicated that strikers were
welcome to return to available positions, but that a returning striker
could not displace a working pilot. The Procedures provided that stri-
kers would be reinstated in the order in which they made offers to
return to work, subject to qualifications. These Procedures have been
consistently utilized to date. Since the start of the strike 874 returning
strikers have been reinstated to active service in accord with these
Procedures. Eastern has not considered positions to be available where
it has made a commitment to a new hire pilot to fill the position,
whether or not that new hire pilot has completed the training necessary
for the position.
28a
March 9, 1989, the economic consequences of the strike
by its pilots forced Eastern to file for reorganization under
Chapter 11 of the Bankruptcy Code.‘ Eastern quickly con-
cluded that a successful reorganization would depend on
the speed with which it would be able to return to the
marketplace and attempt to recapture market share. That
speed, however, was restricted by the number of pilots
immediately available, complexities of pilot training and
staffing, and the limitations of Eastern’s pilot training
facilities.° Accordingly, Eastern announced its intention to
gradually rebuild its flight schedule and on March 21, 1989
began recruiting and advertising for new pilots to staff
its operations as permanent replacements for the striking
pilots. I was placed in charge of the initial phases of the
new pilot hiring program.
5. Although in the early months of the ALPA strike
there were few crossovers,® by June 1989, after it became
‘ALPA was fully aware that its actions might force Eastern into
bankruptcy. In an ALPA videotape distributed to Eastern pilots three
weeks prior to the strike, ALPA’s financial advisor, Farrell Kupersmith,
acknowledged that Eastern might go into bankruptcy if the pilots went
on strike. Attachment B at 13. In a videotape distributed to employees
three days prior to the strike, Eastern Chairman Frank Lorenzo stated
that “Eastern does not have the financial resources to be able to
withstand a strike.’’ Attachment C at 2. On March 7, 1989, at a federal
court hearing on Eastern’s motion for a temporary restraining order
preventing ALPA from striking, ALPA’s counsel further confirmed that
ALPA was aware of the consequences of its actions, asking rhetorically
“Don’t you think the Eastern pilots are aware that what they are doing
might result in a Chapter 11 proceeding?” Attachment D at 100.
* Pilot training requires the extensive use of very sophisticated cockpit
and flight simulators, and the availability of simulator time is a dom-
inant factor in determining a carrier’s maximum pilot training capa-
bility. Eastern maintains 9 simulators and can, if operating at its
maximum capability, train approximately 130 pilots per month. East-
ern’s pilot training department has operated at its maximum capability
since March 27, 1989 and continues to do so today. In an effort to
increase its training capability during the strike Eastern unsuccessfully
attempted to contract for simulator time with other carriers, a common
industry practice.
* Between March 27 and July 30, 168 formerly striking pilots became
39a
apparent that Eastern was continuing to operate, was suc-
cessfully finding a more than adequate supply of qualified
new hire applicants, and was proceeding to reorganize, the
number of crossovers began to increase. By late July and
early August 1989, ALPA’s leadership and general mem-
bership were publicly debating the possibility of an offer
to return to work. While the leadership and a majority of
those who voted in a general membership vote ultimately
rejected that option at that time, 307 striking pilots, ap-
parently spurred by the debate, made offers to return to
work between August 1 and August 11, 1989. In light of
the sudden availability of so many crossovers, Eastern an-
nounced on that date that it was terminating its pilot
hiring program and that it would not commence any ad-
ditional new hire training classes (although a large number
of qualified candidates had already been interviewed for
such classes). An additional 279 striking pilots made in-
dividual offers to return to work after August 11 and prior
to ALPA’s offer on November 22. As of November 22
(and continuing as of the date of this Declaration), 874
crossover pilots had been recalled to work in accordance
with Eastern’s Recall-To-Work Procedures: 94 crossover
pilots remain on the preferential recall list in the order in
which they made their offers to return.
6. As a result of the availability of the additional 307
crossover pilots, Eastern “stretched out’’ the training of
those new hire pilots already in class to make possible the
more rapid recall and requalification training of the re-
turning strikers, thus permitting a more rapid expansion
of its flight schedule in the Fall months. If Eastern had
not adjusted its pilot training schedule to accommodate
and facilitate the return of the striking pilots, substantially
all of the 227 new hire pilots at issue would have concluded
crossovers. In accordance with Eastern’s Return-To-Work Procedures,
all were promptly recalled with full seniority, went through requalifi-
cation training and returned to work.
40a
their training prior to ALPA’s offer to return on Novem-
ber 22, 1989. Thus, contrary to Mr. Babbitt’s suggestion
of hostile discrimination by Eastern against returning stri-
kers, see Babbitt Dec. at ¢ 7, Eastern’s voluntary decision
to advance the requalification training of the crossovers
actually made it possible for them to return to work faster
than was otherwise required.
II. THE NATURE OF PILOT TRAINING AT EASTERN.
7. Every pilot hired by Eastern during the strike was
already licensed by the Federal Aviation Administration
as an airline transport pilot or commercial pilot with multi-
engine rating and instrument rating. In addition, each ap-
plicant had to possess the following minimum qualifications
in order to receive further consideration for employment
at Eastern: (i) 1,200 hours of fixed wing flight time, and
(ii) 200 hours of pilot in command of multiengine aircraft
(or military equivalent) flight time.” Thus, every pilot ap-
plicant offered employment by Eastern is already an FAA
licensed and qualified pilot. Despite such qualifications,
every pilot hired at Eastern has always been required to
complete further training under Eastern’s FAA-required
and approved Pilot Training Program. This program pro-
vides Eastern-specific training to each new hire pilot,
training them in Eastern’s flight operations and flight crew
management procedures and Eastern’s specific cockpit
equipment configurations for the type of aircraft to which
they were assigned.® The FAA-approved training program
7 Since the commencement of ALPA’s strike against Eastern on March
4, 1989, most of Eastern’s new hire pilots have substantially exceeded
these qualifications, frequently including years of experience as pilot in
command for charter, supplemental and commuter carriers. Pilots hired
since the beginning of ALPA’s strike have possessed an average of
approximately 5,700 hours of pilot flight time experience.
* While the aircraft and operating procedures of most major carriers
are similar, each carrier has unique features in its equipment and pro-
cedure.
- on ot tae cir O
4la
includes an Eastern-specific syllabus for pilot training for
each pilot position (Captain, First Officer, Second Officer)
on each type of aircraft in Eastern’s fleet. New hire pilots
are trained in basic Eastern operating procedures and then
in the specific position and equipment to which they will
be assigned. During training each pilot is subject to the
supervision and control of Eastern Flight Operations man-
agement personnel.’ Neither the basic structure nor the
requirements of its Pilot Training Program were changed
during the ALPA strike (due to facility constraints, how-
ever, pilot training was requiring at least eight weeks to
complete, longer than prior to the strike).'°
8. The Eastern-specific training which a new hire East-
ern pilot receives would be of limited use to that pilot if
he resigned from Eastern to join another major carrier
with similar aircraft equipment, because the pilot would
have to complete that carrier’s training program.!! Again,
the training at issue here is not training to learn how to
be a pilot; all of Eastern’s new hire pilots are fully qual-
ified and licensed FAA pilots with thousands of hours of
flight experience. The training they are required to com-
* Following his or her acceptance of an offer of employment as a
pilot with Eastern, each new hire pilot is assigned by Eastern to report
to a scheduled initial pilot training program. At the outset of the
program, all pilots in training are advised of Eastern’s rules and reg-
ulations regarding their conduct as Eastern employees generally and
their attendance and performance in the training program. All such
pilots in training have their entire training schedules set by Eastern,
including the starting and ending time of classes, duration of breaks
and location of accommodation during training.
© As stated, as a result of the August influx of a large number of
crossover pilots, the training for new hire pilots was stretched out to
accommodate the training of returning strikers, and in some cases has
taken up to 4 months.
"| Tllustrative of this point is Eastern’s experience in its 1973 merger
with Caribair. Caribair pilots who were qualified as DC-9 Captains were
nonetheless required to undergo full re-training as DC-9 Captains under
the Eastern training syllabus.
42a
plete is to familiarize them with Eastern procedures and
equipment and is no different from the training required
by veteran Eastern pilots when they change position or
aircraft type. In fact, Eastern has an “up or out’’ policy,
whereby veteran Eastern pilots must, to continue their
employment at Eastern, eventually successfully complete
the same training for a Captain position as required by
Eastern’s new hire pilots who have been trained for such
positions.
9. Pursuant to FAA regulations, see 14 C.F.R. § 121.433
(‘Training Required’’), Eastern’s Pilot Training Program
includes ground school (technical classroom training com-
plete with written examinations) and extensive use of so-
phisticated cockpit and flight simulators. Pursuant to a
separate FAA regulation, see 14 C.F.R. § 121.4385 (‘‘Op-
erating Experience’), following the completion of the East-
ern Pilot Training Program, each pilot is required to fulfill
anywhere from 10-25 hours of operating experience on the
aircraft for which he has been trained. Such experience,
referred to as Initial Operating Experience (““IOE’’), is
obtained by the new hire pilot or veteran Eastern pilot
on assuming a crew member position on a revenue flight,
under the supervision of a “check pilot,” who observes
the new hire’s performance. A pilot’s IOE does not take
place until the pilot has completed all appropriate ground
and flight training as prescribed by 14 C.F.R. § 121.433,
and have been assigned as a regular pilot to a pilot dom-
icile. Indeed, the only reference to a pilot’s “‘initial on-line
qualification” in the Eastern-ALPA agreement is found in
Section 27(T) (“Assignment Of Flying At A Domicile’)
(Attachment E), not in Section 26 (“Training’’).”
2 Mr. Babbitt’s statement that pilot training at Eastern includes IOE
is a gross mischaracterization. Babbitt Dec. at q 5. Initial operating
experience is only necessary to obtain FAA certification, and is clearly
not part of his Eastern provided training and is not included on any
pilot training syllabus. Thus, at Eastern, a new hire pilot’s IOE occurs
ee ti
43a
III. PILOTS IN TRAINING AT EASTERN HAVE ALWAYS
BEEN RECOGNIZED IN ALL RESPECTS AS EM-
PLOYEES IN THE SERVICE OF EASTERN
10. Mr. Babbitt’s Declaration acknowledges that new
hire pilots in initial training have always been awarded
pilot seniority numbers and accrued seniority from their
first day of training. Babbitt Dec. ¢ 9. Incredibly, Mr. Bab-
bitt nonetheless erroneously asserts that such pilots are
not treated as Eastern employees under the Eastern-ALPA
contract or past practice. This assertion is belied not only
by the award of a seniority number but also by the fact
that new hire pilots have always been treated as in the
“service” of Eastern and have received pay, and accrued
seniority, vacation, sick leave and service credit for pen-
sion purposes under the Eastern-ALPA contract from their
first day of training, which is considered to be their ‘‘date
of hire.’’®
after the pilot completes training and reports to his or her assigne*
domicile and is accomplished while the pilot is flying in revenue service.
‘8 Mr. Babbitt’s assertions are also belied by positions taken by ALPA
in grievance proceedings conducted pursuant to the Eastern-ALPA
agreement. For example, in the grievances of Robert S. Braunstein
and Kenneth Nease, which were heard together on June 25, 1987,
ALPA’s representative, Mr. John Loomos, took the position that the
Eastern-ALPA agreement governed new hire pilots while in training.
“Section 26 of the Agreement ... protects the pilot from having to
pay for any training that he receives while he is in the employ of
Eastern; that would be training which is necessary for him to obtain
or maintain his qualifications to function as an Eastern pilot.” Attach-
ment G at 7-8. During that same hearing, Mr. Loomos stated that “‘[a
pilot’s] name goes on the seniority roster at the date you are hired.
We all know the rates of pay and working conditions of these pilots
or any pilot hired by Eastern is governed by the Agreement (between
Eastern and ALPA).” Jd. at 26. Likewise, in a grievance filed on June
7, 1989, ALPA represented one of the pilot’s hired as a permanent
replacement during the strike who had been terminated by Eastern
prior to the completion of his initial training. Attachment H. Thus, Mr.
Babbitt’s assertions that new hire pilots in training are not represented
by ALPA and are not covered by the Eastern-ALPA agreement are
contradictory to positions previously adopted by ALPA.
44a
11. New Hire Pilots In Training At Eastern Have
Always Been Placed On The Payroll On Their First Day
In Training. Section 3-B of the Eastern-ALPA Agree-
ment, “Longevity Pay Rates’’ (attached hereto as Attach-
ment F, as amended February 23, 1986) provides as
follows:
Pilots in their first year of
accredited service with Eastern as
a pilot shall be paid only a
monthly salary calculated in
accordance with the following table:
lst six months $1,450.00
2nd six months $1,600.00"
During my entire 25 years of service at Eastern, new hire
pilots arriving at Eastern have been placed on the payroll
pursuant to this provision, or its predecessors, on their
first day of training at Eastern,* which is usually six to
eight weeks prior to their first flight as a pilot in revenue
service for Eastern. Thus, initial training has consistently
been recognized and treated by both Eastern and ALPA
as in the “service” of Eastern. All pilots hired by Eastern
since March 4, 1989 have been placed on the payroll on
their first day of training in accordance with this prac-
tice.* To illustrate the past application of this provision,
I enclose as Attachment I copies of training and personnel
records for four pilots which show that historically a new
“In an effort to attract qualified new hire pilots during the strike,
Eastern has such pilots salaries somewhat higher than those specified
in the agreement.
“On their first of training new hire pilots are issued an employee
identification number and an identification card which is identical to
those of all Eastern employees.
“ Eastern begins deducting all applicable taxes (i.e., federal and state
withholding and social security taxes) and begins paying unemployment
insurance commencing with a new hire pilot’s first day of training.
New hire pilots also become eligible for employee passes on their first
day of training.
45a
hire pilot’s date of employment for the purpose of semi-
annual pay increases required by the Eastern-ALPA agree-
ment, 1.e., “pay progression date,” is also the first day
the pilot reports to training.
12. New Hire Pilots In Training At Eastern Have
Always Been Placed On The Seniority List And Have
Accrued Seniority From Their First Day of Training.
Section 18-B of the Eastern-ALPA Agreement, attached
hereto as Attachment J, provides:
Except as provided in Section 19 of this Agree-
ment, seniority shall begin to accrue from the
date a pilot is first placed on the payroll on reg-
ular pilot status, at which time he will be given
a concurrent seniority number and from which
date seniority shall continue to accrue during his
period of service.
Pursuant to this provision, during my entire tenure at
Eastern, new hire pilots always have been placed on the
Eastern pilot seniority list as of their first day of train-
ing.'? This practice has continued unchanged as to all pilots
hired by Eastern since March 4, 1989. To illustrate the
past application of this provision, I enclose as Attachment
K, two separate intercompany memoranda which record
the assignment of seniority dates and numbers to new hire
pilots in training, always as of their first day of training.
The ALPA MEC Chairman at that time (L.D. Schulte or
J.J. Bavis) is shown as a recipient of each memorandum.
13. Under the Eastern-ALPA Agreement, A Pilot’s
“‘Service’’ At Eastern Commences From The First Day
Of Training. In my twenty-five year experience at East-
ern, the “date of hire” of a pilot has always been consid-
ered by both Eastern and ALPA to be the date he reports
‘7 In fact, a new hire pilot’s relative seniority within his training class
will be used to award him or her initial domicile assignment, subject
only to the positions available at the time.
46a
for training; “service” as a pilot has always been calcu-
lated to run from that date of hire for all purposes. For
example, pursuant to Documents 90 (‘A Plan’) and 91
(“B Plan’’) (see Attachments L and M) a pilot’s date of
hire controls accrual of service credits under both of East-
ern’s pilot pension plans. To illustrate, Attachment N,
Eastern pension information reports and training records
on three individual pilots, demonstrates that the original
employment date and active service date for pension cal-
culation purposes are calculated from the first day of train-
ing. Pursuant to Section 16(A\1) of the Agreement
(‘Vacations’) (Attachment 0), a “newly employed pilot”
accrues vacation days commencing with his or her first
day of training. Pursuant to Section 38 (“Sick Leave’’)
(Attachment P), pilots also accrue sick leave ‘for each
month of service’’ which commences with the first day of
training. Similarly, under Document 12, Paragraph 13 of
the Eastern-ALPA Agreement (Attachment Q), a pilot be-
comes eligible for participation in Eastern’s medical in-
surance plan after Laving “attained sixty (60) days of
company active service,” which service commences on the
first day of training. For at least the past 25 years, with
the knowledge and approval of ALPA, Eastern has treated
all new hire pilots in initial training as in the service of
Eastern for purposes of vacation accrual, sick leave ac-
crual, pension service credit and eligibility for medical in-
surance. Thus, Mr. Babbitt’s assertion that a new hire pilot
in training is not covered by the Eastern-ALPA agreement
is belied by the overwhelming practice of the parties. The
fact that trainees do not pay union dues is not relevant
because pilots are not required to pay union dues during
the period they are probationary pilots.
IV. EASTERN HAS PROMISED ITS NEW HIRE PILOTS
THAT THEY WOULD BE PERMANENT REPLACE-
MENTS AS OF THEIR FIRST DAY OF TRAINING.
14. Eastern began advertising and recruiting for new
pilots on March 21, 1989, planning to start its first new
47a
hire training class on March 27, 1989. All recruiting ma-
terials noted the existence of a labor dispute and stated
that new pilots, once hired, would be permanent replace-
ments for striking pilots; 7.e.,that they would not be subject
to displacement if favor of returning strikers.”
15. ALPA Proclaimed That Eastern Would Not Be
Able To Recruit Sufficient Qualified Pilots. One of AL-
PA’s propaganda themes to convince its members to re-
main on strike was that, unlike the circumstances during
the ALPA strike against Continental Airlines in 1983, there
were no longer sufficient qualified pilots available for East-
ern to be able to replace them. See Attachment S. Indeed,
during a conversation I had with Mr. Babbitt, in July 1989,
he stated that ALPA had not expected that Eastern would
be able to recruit sufficient qualified pilots to replace those
on strike.
16. ALPA’s Campaign To Discourage New Hire Pilots
From Accepting Employment With Eastern. ALPA’s re-
sponse to Eastern’s bankruptcy and announced intent to
hire new pilots was prompt and hostile. ALPA publicly
supported the sale of Eastern to third parties and publicly
stated that it would not negotiate with, or return to work
for, current Eastern management. See Attachment T.
While ALPA proclaimed that Eastern could not hire suf-
ficient pilots to operate, it nonetheless promptly launched
a campaign to discourage potential applicants from even
considering employment at Eastern. ALPA created and
* Eastern was 2ware that commitments of permanent replacement
status to new hire pilots could become an obstacle to an early settlement
of the strike. Accordingly, still hopeful that striking pilots would return
in large numbers before their replacements finished training, Eastern
initially elected to make a change from its past practice described in
4{ 10-13, supra, and advised its initial recruits that they would become
Eastern employees and attain permanent replacement status as pilots
upon completion of their training, rather than upon its commencement,
as in the past. A copy of Eastern’s initial March 1989 ‘Fact Sheet”
for pilot recruits is Attachment R.
48a
distributed at least three special information packages for
prospective pilot applicants which are enclosed as Attach-
ments U, V, and W. These packages reflect the hostile
comments and themes which ALPA had already begun to
utilize by word of mouth among pilots to discourage ap-
) plications at Eastern. Among the statements circulated by
| ALPA were the following:
Eastern is attempting to hire SCABS .... Un-
) derstand this: the day you sign your name in any
| way to a document at Eastern Air Lines you
have committed suicide in your airline career. . .
All new hires will be furloughed before they ever
get started and will be in every airline’s computer
| as a SCAB and forever unhireable.
Att. U, at p. 2 (emphasis added)
Why are you not an Eastern employee until suc-
| cessful completion of training? .. . Is the training
|
| program a numbers game to show the bankruptcy
) judge?
Att. U, at p. 20
According to ALPA, new pilots will be consid-
ered strike-breaking pilots whenever they report
for any flight operations function—including re-
current or initial training if a strike is in prog-
ress.
*>_ * *&
Traditionally, flying a revenue trip has been the
confirmation of strike-breaking status. However,
ALPA now says that once a strike has begun,
presence on the property for training of any kind
will place pilots in a strike-breaking status.
Att. V, Part 2 at page 6.
49a
ALPA—[you will be considered] a strike-breaker
by all airline pilots the day you start training.
A SCAB, like a tattoo, is forever.
Att. W, at p. 12 (emphasis added)
17. The Results Of ALPA’s Cempaign. As of March
24 it was clear to Eastern’s pilot recruiters that many
qualified pilot candidates were available and interested but
hesitant—largely because of ALPA’s hostile rhetoric and
threats by ALPA representatives that new hire pilots
would be displaced promptly at the conclusion of the strike
since they would not be considered employees until suc-
cessfully completing training. While many highly experi-
enced pilots who formerly flew for charter or freight or
commuter carriers expressed interest, they also expressed
a reluctance to terminate their current employment with-
out firmer assurances from Eastern. Accordingly, Eastern
decided to advise all applicants that it was offering em-
ployment and permanent replacement status, effective from
the first day of pilot training, thus returning to Eastern’s
longstanding policy and practice. On March 27, 1989, I
caused the recruiting literature to be revised accordingly.
A copy of the revised ‘‘Fact Sheet’’ for pilot recruits is
enclosed as Attachment X.
18. Eastern’s Promises To The New Hire Pilots. All
of Eastern’s new hire pilot trainee classes have been re-
peatedly assured by senior management officials, including
Mr. Bakes (President of Eastern), Mr. Matthews (Senior
Vice President Human Resources), and Captain Frank Cau-
sey (Eastern’s Vice President for Flight Operations during
the period when all of the new hire training classes com-
menced) that they would be given seniority numbers and
treated as permanent replacement employees from their
first day of training. I firmly believe that such assurances
have been absolutely essential to Eastern’s recruiting and
have helped to avoid any massive attrition from the train-
50a
ing program in response to ALPA’s threats and efforts
at intimidation.”
V. ALPA’s Threats Against Working Pilots.
19. Mr. Babbitt’s suggestion that ALPA seeks to vin-
dicate the rights of crossover pilots in this litigation is
disingenuous. Babbitt Dec. ¢ 6. ALPA has made no secret
of its contempt for pilots who crossed the picket line and
returned to work, and has leveled a barrage of unflattering
remarks at such pilots, calling them such names as “‘scabs,”’
“crawl backs,” and ‘“‘scum.”’ Attachment Y. In fact, ALPA
has actively sought to discipline members who abandoned
the strike, relying on reports from the then striking pilots
in the field to compile a list of suspected strikebreakers
for review by ALPA’s Article § Committee, the group
responsible for coordinating the punishment of strikebreak-
ers for violation of ALPA’s Constitution and Bylaws.
ALPA also urged its members to draft and sign sworn
statements that they had witnessed those pilots who dish-
onored the strike:
[T]he Article 8 proceedings against scabs are on-
going in the Atlanta Base. We need signed state-
ments from pilots who have made contact with
scabs, talked to the scabs and seen the scabs at
work. This is your chance to push people who
have jeopardized your career in their own jeop-
ardy. Please return any statements to us early
| next week.
/ Attachment Z; see also Attachments AA and BB. Thus,
; ALPA made it clear that pilots who returned to work for
. '* During the course of their training program, Eastern’s new hire
pilots have been housed at various hotels in Miami. From the date our
first trainee class arrived, striking ALPA pilots have been stationed
at these hotels almost continuously. The striking pilots’ apparent mis-
sion was to talk the trainees out of their interest in Eastern, whether
by cajolery or coercion.
|
5la
Eastern by signing the preferential recall list immediately
became ‘‘scabs” subject to union discipline:
[P}ilots who have called or gone in to have their
names put on a recall list will be removed from
the list of those eligible to draw strike benefit
checks ... [and] are considered to be scabs... .
[T]he act of signing up for recall subjects every
pilot doing so to the filing of Article 8 charges
and the implementation of a minimum $10,000.00
fine, even if the individual has resigned from
ALPA.
Attachment CC; see also Attachment DD. Indeed, as al-
ready found by the United States Bankruptcy Court for
the Southern District of New York, ALPA repeatedly man-
ifested its hostility to the veteran Eastern pilots who
elected to work during the strike:
ALPA’s assertion that it has commenced the law-
suit [seeking to enjoin Eastern’s lease of aircraft
with crews from anether company for the pur-
pose of performing Eastern flying during the
strike] on behalf of and to benefit its employees
who desire to return to work with Eastern is
disingenuous and in contradiction to ALPA’s
avowed strike policies which are calculated to dis-
courage any of its members from returning to
work for Eastern. Returnees are treated by
ALPA with the utmost contempt and subject to
disincentive sanctions.
Findings of Fact and Conclusions 01 Law, Eastern Air
Lines, Inc. v. Air Line Pilots Association International (In
re Ionosphere Clubs, Inc.), Adversary Proc. No. 89-6143A
(Bankr. S-D.N.Y. entered October 4, 1989) at 8 4 27 (At-
tachment EE hereto).
ee ag OS
i Sette ieee
ht eee | ROS Ene ea _ ge tee teem eres ay et > tee
52a
VI. EASTERN’S STATUTORY RIGHT TO SELF HELP
WOULD BE MEANINGLESS IF IT CANNOT TREAT
NEW HIRE PILOTS AS PERMANENT REPLACE-
MENTS FROM THEIR FIRST DAY OF TRAINING
20. As discussed in ¢ 16, ALPA’s campaign to under-
mine Eastern’s pilot recruiting program focused heavily
on the lack of job security at Eastern and the fact that
trainees would be ‘“‘at risk.’”’ In my view, and as attested
by the Declarations of 49 new hire pilots, Eastern would
have been unable to attract the number of qualified pilots
who have applied and been hired to fill pilot positions
without a promise of permanent replacement status from
the first day of training. This is particularly true in light
of the high experience level of those pilots. A number of
these pilots had established themselves with substantial
seniority at smaller air carriers (charters, freight and com-
muter carriers) or as corporate pilots, but were frequently
regarded as “too old’”’ to be hired in junior position at
major carriers, where they would have to spend many
years to gain sufficient seniority to fly as Captain. Not
knowing when the ALPA strike might end, many such
pilots inquired extensively to assure themselves that they
would be guaranteed permanent replacement status from
their first day of training and would not be ‘“‘at risk’’ at
any time at Eastern once they had sold their businesses
or resigned their prior position, given up years of seniority,
and in some cases relocated themselves and their families.
Thus, in the absence of a promise of permanent replace-
ment status from the first day of training, Eastern’s sta-
tutory right to use permanent replacements to continue
operation would be rendered meaningless.
21. The reliability of Eastern’s promise of permanent
replacement status to all of its new hire pilots is also
crucial to Eastern’s ability to conduct future negotiations
with ALPA. At some point two or three or five years
from now, Eastern will again face negotiations with ALPA
on the next contract. During those negotiations, ALPA
53a
will surely threaten a strike if its demands are not met;
Eastern will be at a severe disadvantage if it is not equally
able to assert an intent to operate and to hire replacement
pilots if necessary. I believe that if Eastern dishonors its
promises to its new hire pilots in this dispute, it will be
unable to recruit and hire replacement pilots during any
future strike. ALPA would surely make all potential ap-
plicants aware of the unreliability of Eastern’s promises.
Eastern’s theoretical right to operate would be an empty
threat and Eastern would then be at ALPA’s mercy to
either capitulate at the bargaining table or to cease op-
erations for the duration of any strike. Thus, failure to
honor its commitments this time would totally emasculate
Eastern in future collective bargaining with any of its
labor unions. Eastern’s ability to conduct future negotia-
tions effectively thus compels it to honor its present com-
mitments of permanent replacement status to new hire
pilots from their first day of training.
VII. IRREPARABLE INJURY
22. Mr. Babbitt’s Declaration wrongly asserts that
“striking pilots can be requalified within a matter of days.”
Babbitt Dec. at ¢ 11. In fact, having now been out of the
cockpit for over 10 months, it would take a minimum of
10 days of training, to requalify a returning striker, pro-
vided that the pilot were returning to his or her prestrike
category position. However, the pilot vacancies for which
the pilots in training, as of November 22, were being
trained were among the most junior pilot positions avail-
able, including 105 B-727 second officers and 40 DC-9 first
officers. These were not the prestrike category positions
of either the 227 most senior strikers nor the 94 unrecalled
crossover pilots whose names remained on the preferential
recall list as of ALPA’s November 22 offer. Accordingly,
upon recall such senior returning strikers would require
full retraining, a process requiring up to 30 days and cost-
ing Eastern (depending upon whether the pilot requires
requalification, transition or upgrade training) any where
| 54a
from $9000-$35,000 per pilot,” and, due to the ongoing
training of working pilots, it would take months to com-
plete the retraining of over 220 returning pilots. Most
importantly, if this Court orders Eastern to displace the
227 pilots who were still in training on November 22,
Eastern will be forced to cancel hundreds of flights, thus
causing great inconvenience to the travelling public, and
costing Eastern millions of dollars in lost revenue, which
it desperately needs, and significant amounts of goodwill
at a time when it is struggling to recapture marketshare
and to reorganize. Eastern will be forced to cancel flights
because, as stated above, most of the returning strikers
affected by such an order will require up to 30 days of
training before they can resume line flying. However, it
is my firm conviction that a significant number of the
affected new hire pilots, knowing that they will be fur-
loughed by Eastern, will resign their employment with
Eastern before the returning strikers can be trained.
I declare, under penalty of perjury, that the foregoing
is true and correct to the best of my knowledge, infor-
mation and belief.
Executed this 16th day of January 1990.
/s/ Alan C. Gibson
Alan C. Gibson
20 Moreover, at the time of the next annual bid, which the Eastern-
ALPA agreement provides must be effective between June 1 and Au-
gust 1 of each year, these senior returning pilots will be able to assert
their seniority to obtain a higher permanent category positions, neces-
sitating additional training for them and, due to the “ripple effect’ of
such pilot staffing changes, the retraining of hundreds of other pilots
as well.
' =
55a
APPENDIX F
(ATTACHMENTS OMITTED)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 89-1630-CIV-DAVIS
EASTERN AIR LINES, INC.,
Plaintiff,
v.
AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL and EASTERN AIR
LINES MASTER EXECUTIVE COUNCIL
Defendants.
DECLARATION OF KAREN AVERILL
I, Karen Averill, do hereby swear and affirm as follows:
1. I served as the coordinator of pilot recruiting at East-
ern Air Lines, Inc. (‘‘Eastern’’) from March 14, 1989 until
August 11, 1989, when Eastern announced that it was
terminating its pilot hiring program in light of the large
influx of crossover pilots during the previous few weeks.
While the pilot hiring program was ongoing, I was re-
sponsible for the overall administration of the process by
which Eastern recruited, screened, and interviewed appli-
cants for pilot positions at Eastern. Prior to March 14,
1989, I was employed by Eastern for approximately three
years as a professional recruiter for prospective employees
in all job categories.
2. On March 21, 1989, two and a half weeks after ALPA
commenced its strike against Eastern, Eastern began to
EE ELD OTT ILO ae
ae Be
56a
advertise that it was hiring pilots to replace its striking
pilots. The advertisements clearly stated that Eastern was
offering full-time, permanent positions to new hire pilots.
A copy of Eastern’s standard pilot recruiting advertise-
ment is enclosed as Attachment A; a list of the newspapers
and dates on which this ad was run is enclosed as At-
tachment B.
3. Between March 21 and August 11, Eastern received
more than two thousand employment applications from
persons who fully satisfied, and indeed, in most instances,
far exceeded Eastern’s minimum qualifications for hire as
a line pilot.' However, aware of the close scrutiny that
the new hire pilots would receive, Eastern developed pro-
cedures to ensure that the pilots it hired would meet the
highest standards. In general, once a person’s employment
application was received, a pilot recruiter would contact
the applicant and conduct a telephone screening interview
to determine whether the pilot satisfied Eastern’s mini-
mum qualifications. If the pilot recruiter determined that
the pilot applicant satisfied Eastern’s minimum qualifica-
tions, Eastern sent the applicant an information package,
which contained an employment application, a fact sheet,
and other information about Eastern, and scheduled a pre-
hire interview with the applicant at the earliest available
date (generally within a few days after the applicant re-
ceived the information package).
4. The pre-hire interviewing process was rigorous, con-
sisting first of a group briefing conducted by a pilot re-
‘ Every pilot hired by Eastern during the strike was already licensed
by the Federal Aviation Administration as an airline transport pilot or
a commercial pilot with multiengine rating and instrument rating. In
addition, each applicant had to possess the following minimum quali-
fications in order to receive further consideration for employment at
Eastern: (i) 1,200 hours of fixed wing flight time, and (ii) 200 hours
of pilot in command of multiengine aircraft (or military equivalent) flight
time.
57a
cruiter, followed, for the remainder of a full day, by a
series of individual interviews to ascertain whether the
applicant possesed the qualifications and proficiencies nec-
essary to be hired as a pilot by Eastern. If the applicant
was determined to be fully qualified, he was offered a
permanent pilot position at the end of the interview proc-
ess and, if the offer was accepted, a mutually agreeable
date was established for the beginning of his initial train-
ing, which was, however, contingent upon the applicant’s
successful completion of a background check and a physical
examination.
5. In the three years I have been employed by Eastern,
a new hire pilot was always placed on the payroll and the
Eastern pilot seniority list as a permanent Eastern em-
ployee beginning wi*h his or her first day. co: ..aining.
However, for approximately 10 days following ti * com-
mencement of ALPA’s strike, Eastern initially t-.d pro-
spective new hire pilots that they would become Eastern
employees and assume permanent replacement status as
pilots only upon completion of their training.
6. Shortly after Eastern began to advertise for new
pilots, ALPA initiated an aggressive effort to discourage
potential applicants from applying for pilot positions at
Eastern and to encourage those who had accepted pilot
positions not to report for training or to leave Eastern.
Among other things, ALP4 ‘mphasized that new hire pil-
ots would not be considered permanent Eastern employees
until they had completed training and threatened that,
until such time, they could and would be displaced if ALPA
elected to end its strike.
7. ALPA’s efforts to discourage persons from applying
for pilot positions at Eastern and from completing training
once they had been hired (which are described more fully
in the accompanying Declaration of Alan C. Gibson), cre-
ated widespread concern and confusion on the part of ac-
tual and potential applicants as to the security of new hire
58a
pilot positions at Eastern. Many qualified pilot applicants
told me, and other pilot recruiters that, because of ALPA’s
intimidation, including threats by ALPA that new hire
pilots in training were not permanent employees and would
be displaced if ALPA elected to end its strike, they did
not desire to pursue further their interest in a pilot po-
sition at Eastern. During those initial weeks of the pilot
hiring program, approximately 100 pilot applicants, who
had been sufficiently interested in Eastern (despite AL-
PA’s strike) to apply for a pilot position, appear for a pre-
hire interview and accept an offer of employment, sub-
sequently failed to appear for their scheduled class date.
9. Consequently, to insure that it would continue to
attract qualified pilot applicants, on March 27, 1989, East-
ern revised its fact sheet and returned to its long estab-
lished practice of offering permanent employee status to
pilots effective their first day of training. Eastern then
recontacted pilot applicants who had earlier decided not
to pursue further their interest in a pilot position at East-
ern (including those pilots who had failed to report for a
scheduled class date), and informed them that new hire
pilots would be considered permanent employees as of their
first day of training. Many of these persons then decided
to reschedule their training class dates.
10. It is my firm belief that Eastern’s decision to return
to its established practice effectively defused concern on
the part of pilot applicants and trainees as to the per-
manent nature of their positions, and, in my view, made
it possible for Eastern to attract qualified pilot applicants
who, without a guarantee of a permanent employee status
as of their first day of training, would not otherwise have
decided to apply for and to accept employment at Eastern.
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I declare under penalty of perjury that the foregoing is
true and correct to the best of my knowledge, information,
and belief.
Executed this 16th day of January, 1990.
/s/ Karen Averill
Karen Averill
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APPENDIX G
Railway Labor Act Provisions
45 U.S.C. § 151, Fifth provides as follows:
Fifth. The term “‘employee’”’ as used herein includes every
person in the service of a carrier (subject to its continuing
authority to supervise and direct the manner of rendition
of his service) who performs any work defined as that of
an employee or subordinate official in the orders of the
Interstate Commerce Commission now in effect, and as
the same may be amended or interpreted by orders here-
after entered by the Commission pursuant to the authority
which is conferred upon it to enter orders amending or
interpreting such existing orders: Provided, however, That
no occupational classification made by order of the Inter-
state Commerce Commission shall be construed to define
the crafts according to which railway employees may be
organized by their voluntary action, nor shall the jurisdic-
tion or powers of such employee organizations be regarded
as in any way limited or defined by the provisions of this
chapter or by the orders of the Commission.
The term ‘‘employee’”’ shall not include any individual while
such individual is engaged in the physical operations con-
sisting of the mining of coal, the preparation of coal, the
handling (other than movement by rail with standard rail-
road locomotives) of coal not beyond the mine tipple, or
the loading of coal at the tipple.
45 U.S.C. § 181 provides as follows:
§ 181. Application of subchapter I to carriers by air
Ali of the provisions of subchapter I of this chapter except
section 153 of this title are extended to and shall cover
every common carrier by air engaged in interstate or for-
eign commerce, and every carrier by air transporting mail
for or under contract with the United States Government,
6la
and every air pilot or other person who performs any work
as an employee or subordinate official of such carrier or
carriers, subject to its or their continuing authority to
supervise and direct the manner of rendition of his service.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.