# Petition for Writ of Certiorari — Eastern Air Lines, Inc. v. Air Line Pilots Ass'n, International > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2221%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 901 ## Text O 60-1902 | rissp 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 To i beens 3 ns. 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 . : 8 - ye eS A SS er ee ee eo ee ae se SO f : 3 ve ’ é se 4S y ¢ I rg te ee PO RE te Pe oN NC RES ee OE Gee Ee Sa Eee Cree tee” eT are seers a ae la 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 ha [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2221%3A1. Public record. Not legal advice.