Appendix — McDonald v. United Air Lines, Inc.

88-1780 "FILED

JAN 18 1984

ALEXANDER L. SIEVAS,

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1983

LIANE BuIx MCDONALD,

on her own behalf and on behalf

of all others similarly situated,

Petitioner,

v.

UNITED AIR LINES, INC.

and

ASSOCIATION OF FLIGHT ATTENDANTS

and

JOYCE BARR,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ISAAC N. GRONER

Counsel of Record

WALTER H. FLEISCHER

JAMES A. BENSFIELD

COLE AND GRONER, P.C.

1780 K Street, N.W.

Washington, D.C. 20006

(202) 881-8888

THOMAS R. MEITES

LYNN SARA FRACKMAN

MICHAEL M. MULDER

MEITEs & FRACKMAN

185 South LaSalle Street

Chicago, Illinois 60608

Counsel for Petitioner

WILson - Eras Printing Co., Inc. - 789-0096 - WasHineTon, D.C. 20001

o> ~

TABLE OF CONTENTS

OPINION, Court of Appeals for the Seventh Circuit

(September 21, 1983)

MEMORANDUM AND ORDER, District Court for the

Northern District of Illinois (January 12, 1982)

ORDER, District Court for the Northern District of

Illinois (July 14, 1982)

JUDGMENT, Court of Appeals for the Seventh Circuit,

affirming Judgment of the District Court (Septem-

ber 21, 1983)

ORDER, Court of Appeals for the Seventh Circuit,

denying Petition for Rehearing (October 20, 1988)

Page

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40a

94a

99a

102a

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APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 82-2647, 82-2660, 82-2661

CAROLE ANDERSON ROMASANTA, et al., and

LIANE Burx MCDONALD, on her own behalf and

and behalf of all others,

Plaintiffs-A ppellants-

Cross-A ppellees,

v.

UNITED AIR LINES, INC., a corporation,

: Defendant-A ppellee-

Cross-A ppellant,

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois

No. 70 C 1157—James B. Moran, Judge

ARGUED MAY 9, 1983—DECIDED SEPTEMBER 21, 1983

Before PELL and CUDAHY, Circuit Judges, and

GIBSON, Senior Circuit Judge.“

* Floyd R. Gibson, Senior Circuit Judge for the Eighth Circuit,

sitting by designation.

PELL, Circuit Judge.

These interlocutory appeals concern the district court’s

determinations, following a hearing, as to the seniority

relief to which former flight attendants of United Air

Lines, Inc. (United), who left United because of that

airline’s no-marriage“ rule, are entitled upon reinstate-

ment with the airline.

The principal issue raised on appeal is whether the

district court properly applied the rule in Franks v. Bow-

man Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47

L.Ed.2d 444 (1976), in granting seniority for competitive

purposes equal only to the number of days the claimants

had previously been employed as flight attendants by

United. On cross-appeal, United challenges the grant of

seniority retroactive to date of original hire for purposes

of compensation and other non-competitive benefits. Con-

solidated with this appeal and cross-appeal is the class’

appeal from the district court’s denial of injunctive relief

upon United’s recall in October, 1982, of 175 furloughed

flight attendants.

I. BACKGROUND

A. Prior Proceedings

Prior to November, 1968, United prohibited the con-

tinued employment as a flight attendant of any female

employee who married. United also employed a small

number of male flight attendants who were permitted to

retain their positions after marriage. On November 7,

1968, United and the flight attendants’ union agreed to

revoke this no-marriage rule. Reinstatement was offered

to those flight attendants terminated because of the rule

only if they had filed a grievance with the union or a

complaint with the Equal Employment Opportunity Com-

mission (EEOC).

On November 27, 1968, Mary Burke Sprogis brought

suit in the Northern District of Illinois alleging that the

8

8a

no-marriage rule was violative of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17 (Title

VII). The district court granted summary judgment in

favor of Sprogis. Sprogis v. United Air Lines, Inc., 308

F.Supp. 959 (N.D III. 1970). That result was affirmed by

a majority of this court in June, 1971. Sprogis v. United

Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971).

During pendency of the Sprogis appeal, Carole Ander-

son Romasanta filed a class action in the Northern Dis-

trict of Illinois on behalf of herself and other. United

flight attendants terminated because of the no-marriage

rule. The district court ruled that the Romasanta case

should not proceed as a class action but by individual in-

tervention of those discharged flight attendants who had

either filed a union grievance or an EEOC complaint. A

settlement was reached by the parties providing for re-

instatement and backpay awards to the plaintiffs and

a final order was entered by the district court approving

the settlement.

One of the discharged flight attendants who had been

excluded from the Romasanta case because of the adverse

class ruling, Liane Buix McDonald (McDonald), sought

to intervene to challenge the class determination. The dis-

trict court denied intervention and an appeal was taken

to this court. A majority of this court reversed, remand-

ing the case with instructions to permit McDonald to

intervene, to treat the case as a class action, and to

fashion relief for the class. Romasanta v. United Air

Lines, Inc., 587 F.2d 915, 920 (7th Cir. 1976), aff'd sub

nom. United Airlines, Inc. v. McDonald, 482 U.S. 385, 97

S.Ct. 2464, 53 L.Ed.2d 423 (1977).

On remand, the district court limited the class to per-

sons actually discharged by United. Those who had

resigned because of the rule were excluded. This court

again reversed, holding that resigners were entitled to be

class members and noting that the class might include all

persons who left United because of the rule within the

4a

period from ninety days before the filing of EEOC

charges to the date on which the no-marriage rule was

abolished. McDonald v. United Air Lines, Inc., 587 F.2d

357 (7th Cir. 1978), cert. denied, 442 U.S. 934, 99 S.Ct.

2869, 61 L.Ed.2d 303 (1979).

On remand, the Association of Flight Attendants

(AFA), the union representing incumbent flight attend-

ants at United, was permitted to intervene. After notice

was given, approximately 1,750 potential class members

were identified. Before the commencement of individual

hearings to determine actual class membership, United

and the AFA successfully urged that the district court

hold an evidentiary hearing to determine whether rein-

statement with retroactive seniority to the date of original

hire would result in an “unusual adverse impact” on

incumbent flight attendants, see, Franks v. Bowman

Transportation Co., 424 U.S. 776, 779 n.41, 96 S.Ct. at

1270, 1271 n.41 (1976). In the course of the ensuing

hearing, the class plaintiffs clarified that they sought re-

instatement only as openings among the ranks of flight

attendants occurred (openings proposal) rather than im-

mediate reinstatement of the entire class.

In a memorandum and order issued January 8, 1982,

the district judge found the openings proposal, as condi-

tioned by the class, to be unworkable. He also found that

“unusual adverse impact” would surely result if the class

members were reinstated immediately with full retro-

active seniority for competitive purposes. The relief

granted credited the class members with seniority based

on the number of days they had actually worked at United

as flight attendants for those benefits requiring competi-

tion among flight attendants. The district judge granted

the claimants seniority from date of original hire for

those benefits representing a cost to the airline but not

impacting directly on incumbent flight attendants. The

class immediately filed a motion to reconsider, urging that

they at least be accorded “relative seniority” for competi-

5a

tive purposes (relative seniority proposal). Under this

proposal, a class member whose seniority for competitive

purposes placed her at the ninetieth percentile when she

left United would be inserted into the current seniority

list at that same percentile. This motion was denied with-

out opinion. On July 12, 1982, the district judge issued

an order implementing his earlier memorandum and order.

He certified for immediate appeal the question whether

less than full retroactive senicrity could be granted class

members for competitive purposes. See 28 U.S.C. § 1292

(b). The class’ appeal on that issue, No. 82-2660, and

United’s cross-appeal pertaining to the award of full

retroactive seniority for purposes of compensation and

other company benefits, No. 82-2661, followed.

In August, 1982, United indicated that it would recall

175 flight attendants from furlough on October 1. The

plaintiff class sought to enjoin this recall, believing that

it prejudiced the seniority rights awarded claimants pur-

suant to the order of July 12, 1982. The district court

denied the requested stay, refused to require the recall of

claimants rather than furloughees, and declined to rule on

the claimant class’ alternative request that they be per-

mitted to accrue seniority during the period of the recall.

The plaintiffs’ appeal from this ruling, No. 82-2647, has

been consolidated with Nos. 82-2660 and 82-2661 for

purposes of argument and decision.

B. Factual Background Relevant to Reinstatement Issues

1. Competitive and Company Seniority.

Seniority is extremely relevant to the flight attendant

position. The term “seniority” is used in several different

contexts. The first, company seniority, determines a flight

attendant’s number of vacation days and number of

passes to which he or she is entitled, as well as other

similar benefits provided by the airline. Company senior-

ity reflects the employee’s total service with the airline.

Because all of the matters determined by company senior-

6a

ity represent a cost to the airline, but are not otherwise

limited in their availability, the amount of company sen-

iority awarded the class members is extremely important

to United but has little direct impact on incumbent flight

attendants.

Classification seniority, on the other hand, reflects the

amount of time an employee has worked as a flight at-

tendant. Classification seniority is utilized in an absolute

sense to determine the flight attendant’s salary. Like

company seniority, the classification seniority awarded

class members for purposes of salary calculation is of

primary concern to United and of minimal concern to

incumbent flight attendants.

Classification seniority also is utilized in a relative sense

and is pertinent to those aspects of the flight attendant

job that require United to distinguish among the flight

attendants. For instance, the airline maintains eleven

separate “domiciles” to which flight attendants are as-

signed. Some, like Seattle and Miami, are considered far

more attractive by flight attendants than others, such as

Chicago. Because flight attendants bid for domiciles based

on their classification seniority, the flight attendant with

the greatest classification seniority relative to other flight

attendants, has the best chance of being stationed where

she chooses. The impact of relative classification senior-

ity, therefore, is directly felt by other flight attendants.

Because of this effect, we will hereafter in this opinion

refer to such seniority as “competitive seniority.” '

Besides determining the attendant’s domicile, competi-

tive seniority is utilized in furloughing, or laying off,

flight attendants if such action is required, with the least

senior employee being the one most vulnerable to fur-

lough. Within each domicile, competitive seniority deter-

mines whether the flight attendant is a “lineholder,” who

1“Competitive seniority” is therefore synonymous to “relative

classification seniority.”

7a

flies a predetermined fixed monthly schedule, or one who

must serve on “reserve,” in which case the flight attend-

ant’s lines of flying are determined by the airline, at its

option, and according to its needs. Competitive seniority

also determines whether the individual will work only

during weekdays or also during the weekend and whether

he or she will work a flight that offers premium pay.

Finally, and of extreme importance to the flight attend-

ants, whether one is subject to involuntary transfer to a

different domicile is determined by competitive seniority

within the domicile from which the flight attendants are

to be transferred.

Although much of the evidence presented in the trial

below on reinstatement issues will be developed later in

this opinion, it is important to note that assignment of a

domicile is considered extremely important by flight at-

tendants. The evidence indicated, for instance, that some

flight attendants would be more willing to fly “reserve” at

a more desirable domicile than to be a lineholder at a less

desirable domicile. Accordingly, the possibility of involun-

tary transfers is regarded with great concern. Such a

transfer presents the flight attendant with a choice of

relocating or “commuting” from one’s home to one’s

domicile. The cost of commuting—both in terms of time

and money—are significant. Similarly, the costs of re-

location can be exceedingly high in personal terms, par-

ticularly if the flight attendant has been assigned to one

domicile for a lengthy period of time and/or has a spouse

and children with work and community ties in that locale.

Not surprisingly, the other part of the flight attendant

experience affected by competitive seniority that is of

overriding concern to flight attendants is the possibility

of furloughs. A furloughed flight attendant does not

receive regular compensation during the furlough, does

not continue to accrue seniority, and all recall rights are

extinguished after the lapse of five years.

8a

2. Economic Factors.

Particularly relevant to disposition of this case are eco-

nomic factors affecting United in the past several years.

In the years 1979, 1980, and 1981, United experienced

operating losses, after taking into account the tax ad-

vantages of these losses, of $99,583,000, $15,043,000, and

$104,368,000, respectively. Undoubtedly reflecting this

economic picture, United has not hired a single flight at-

tendant since 1979 and has furloughed 1,530 employees

during that period. Although 547 of these employees were

furloughed because of cutbacks necessitated by the air

traffic controllers’ strike in 1981, and one would therefore

assume their lay-off to be temporary, the AFA brief

submitted in this case indicates that there are currently

1,255 furloughed flight attendants.

The district court also found that reinstatement of

1,480 claimants? would create an immediate non-recur-

ring cost to United in excess of $10,000,000. The annual

recurring cost to the airline of reinstating the claimants

would be approximately $21,000,000.

8. Factors Not Yet Determined by the District Court.

Although this court has accepted this interlocutory ap-

peal on the reinstatement issues, there are several facts

not yet determined that are relevant to the seniority issues

we address herein. First, the size of the class is not yet

certain. Subsequent to oral argument in this case, hear-

ings before special masters have commenced. The purpose

2 As discussed in Section II, infra, the district judge determined

that the figure 1,400 represented a reasonable estimate of class

members likely to seek reinstatement by United. Accordingly, he

utilized that figure throughout his memorandum opinion. The only

exception is in the findings regarding costs to United resulting

from reinstatement of the class. Only United presented evidence

on that point and, in so doing, United assumed that 1,480, rather

than 1,400, class members would seek reinstatement. The district

judge similarly utilized the 1,480 figure for purposes of this one

issue and, in footnote, explained his reasons for doing so.

9a

of these hearings is to determine whether a claimant left

United because of the no-marriage rule or for other rea-

sons. Only upon completion of these hearings will there

be certainty as to the size of the class. Whether all class

members, once they are determined, will actually seek

reinstatement is similarly unknown.“

Second, the district court held hearings in November

and December, 1982, relating to the issues of back pay

and front pay for class members in this action. Front

pay is the amount that United would be required to pay

class members whole they await actual reinstatement by

the airline. Although the district judge did not consider

the impact of front pay in his order, that potential cost

is relevant to this appeal. Because of the financial im-

pact it would have on United, the airline has indicated

that it both could, consistent with the collective bargain-

ing agreement, and would furlough incumbent flight at-

tendants in order to permit a more rapid reinstatement

of claimants.

II. ISSUES RAISED BY INTERVENOR BARR

The initial issue we must consider is whether the dis-

trict court’s use of the number 1,400 as an estimate of

class members likely to seek reinstatement misrepresents

the size of the class and prejudices the results of analyz-

ing the impact on incumbents of the proposed seniority

remedies. Joyce Barr, a member of the class represented

by McDonald, urges that a substantially smaller number

should be utilized and that the class should be subdivided

between those former flight attendants who want to re-

turn to work and those who primarily seek a financial

remedy.

Barr’s argument is that the number 1,400 is unrealistic

because many of the persons who responded to the class

In portions of this opinion, the term “class members” is used

in speaking of all those persons who potentially will be found

entitled to relief and who will seek reinstatement.

10a

notice will be unable to prove that they left United

because of the no-marriage rule and, of those who survive

that threshold determination, many will not want to

return to a position they left fifteen or more years ago.

Barr asserts that McDonald is using this inflated number

in order to force financial concessions from the airline.

The result is that those class members who actively want

to return to United are being sacrificed to a litigation

strategy that favors those seeking financial benefits,

rather than work, from this suit.

Contrary to Barr’s contentions, the 1,400 figure is not

simply McDonald’s estimate. It is the number upon which

the AFA, United, and McDonald agreed at pretrial con-

ferences in September, 1980, and February, 1981, because

all the parties recognized that some figure had to be used

for purposes of resolving the reinstatement issues in this

case. By the time the hearing below was held, all three

parties were urging different numbers, of which Mc-

Donald’s 1,069, was the lowest.

The district court utilized the figure 1,400 after care-

fully analyzing the methodology used by McDonald in

arriving at the 1,069 figure. The district judge’s conclu-

sion was that any one mistaken assumption in McDonald’s

calculations would raise the figure by three to five hun-

dred class members and therefore the 1,400 figure was

more realistic.

The real difficulty here, as recognized by the judge be-

low, is that the relevant assumptions are untestable. Only

after the conclusion of the class membership hearings now

in progress, and scheduled over the next two to three

years, will it be clear who is in the class. Even that fig-

ure may not reflect the number of claimants who finally

seek reinstatement. That variable is virtually impossible

to assess at this time, especially because the attractiveness

of reinstatement may depend, in the view of some claim-

ants, on the resolution of this appeal.

lla

In International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 376, 97 S.Ct. 1843, 1875, 52 L.Ed.2d

396 (1977), the Court observed that until “both the

number of identifiable victims and the consequent extent

of necessary relief have been determined, it is not possible

to evaluate the abstract claims concerning the equitable

balance that should be struck between the statutory rights

of victims and the contractual rights of nonvictim em-

ployees.” This passage suggests that the reinstatement

issues now before this court would be better addressed by

the district court only after the number of persons at

least entitled to reinstatement is determined. Delaying

resolution of the seniority questions to that time would be

the only practical way of responding to intervenor Barr’s

concerns.

The district court decided to proceed, however, and

this court has accepted the resulting interlocutory ap-

peal, because a case that has already been unresolved too

long threatens to extend indefinitely if resolution of the

seniority questions are delayed until completion of the

class eligibility hearings. Because the district court

found it imperative to proceed before the precise num-

ber of class members was determined, we can demand

no more than that the estimate of class members reflect

the varying positions of the parties and that the basis

for choosing the figure 1,400 be demonstrated in the

record. Both conditions are satisfied here.

Not only do we find the number 1,400 a reasonable

estimate of persons who will seek reinstatement, but, like

the district court, we are persuaded that McDonald is

not undermining the interests of some members of the

class. She has presented alternative proposals regarding

seniority relief, briefed each at length, and actively sought

full, retroactive seniority for class members. We find

no error in the district court’s refusal to subdivide the

class. Not only is subclassing unnecessary in view of

McDonald’s vigorous representation, but it would be im-

12a

possible to determine at this point which potential class

members “really” want to return to their positions at

United and which “really” seek only a financial remedy.

In light of our decision that the district court did not

err in utilizing the figure 1,400 and in refusing to sub-

divide the claimant class, we hereby deny the various mo-

tions pending before this court that pertain to materials

bearing on a reevaluation of the number of claimants

likely to seek reinstatement.‘

III. COMPETITIVE SENIORITY

The primary issue raised by the plaintiffs on this

appeal is whether the district judge abused his discre-

tion, particularly in view of Franks v. Bowman Trans-

portation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d

444 (1976) (Franks), in declining to grant the class

members full, retroactive competitive seniority upon their

being rehired by United. The class members are entitled,

under the court’s ruling, to only the competitive seniority

they had actually accrued at the time they left United

because of the no-marriage rule.

A. Franks and Its Progeny

In Franks, the Supreme Court, reversing the Fifth

Circuit, held that nonemployees who had applied for and

been refused employment as over-the-road truck drivers

by Bowman Transportation Co. (Bowman) solely because

of their race were entitled, pursuant to Title VII, to sen-

iority status retroactive to the dates of their employment

* The following motions are accordingly denied: (1) Intervenor

Barr’s motion to supplement record on appeal (filed 5/18/88); (2)

AFA’s motion for leave to comment on intervenor Barr’s Circuit

Rule 11 submissions (filed 5/18/83) ; (3) class’ motion for leave to

file response to post-argument submissions (filed 4/20/88); (4)

response of intervenor Barr to AFA’s motion for leave to file com-

ment (filed 5/20/88); and (5) responses of AFA to class’ motion

to file response to post-argument submissions (filed 5/27/88).

13a

applications. The Supreme Court reasoned that one of

the central purposes of Title VII is “ to make persons

whole for injuries suffered on account of unlawful em-

ployment discrimination.“ 424 U.S. at 763, 96 S.Ct.

at 1263 (quoting Albemarle Paper Co. v. Moody, 422

U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280

(1975) ), and that ordinarily a grant of seniority reflect-

ing the discrimination victim’s date of application is nec-

essary to achieve that “make-whole” purpose, 424 U.S. at

766-67, 96 S.Ct. at 1265.

One of the arguments advanced by Bowman in support

of the lower courts’ refusal to grant the seniority relief

was that the district court had correctly exercised its

discretion in denying retroactive seniority because of the

competing interests of incumbent employees. The Su-

preme Court rejected this argument for two reasons:

first, because the district court had not mentioned these

considerations in denying the relief,“ and, second, because

if relief under Title VII can be denied merely be-

cause the majority group of employees, who have not

suffered discrimination, will be unhappy about it, there

will be little hope of correcting the wrongs to which the

Act is directed.’” Id. at 775, 96 S.Ct. at 1269 (quoting

United States v. Bethlehem Steel Corp., 446 F.2d 652,

663 (2nd Cir. 1971)). Although the Court recognized

that the burden of granting competitive seniority falls

primarily on innocent incumbent employees, see 424 U.S.

at 773 n. 33, 776-78, 96 S.Ct. at 1268 n. 33, 1270-71, it

held that a “sharing of the burden of past discrimina-

tion” is “presumptively necessary,” id. at 777, 96 S.Ct.

at 1270.

The Court recognized, however, that an award of full,

retroactive seniority may not be appropriate in every

case. In footnote, the Court clarified that it did not

5 There is no indication in the Franks opinion that the question

of impect on incumbents had even been presented to the district

court.

14a

intend to abrogate the equity powers of the distriet

courts:

Rather our holding is that in exercising their eq-

uitable powers, district courts should take as their

starting point the presumption in favor of rightful-

place seniority relief, and proceed with further legal

analysis from that point; and that such relief may

not he denied on the abstract basis of adverse impact

upon interests of other employees but rather only on

the basis of unusual adverse impact arising from

facts and circumstances that would not be generally

found in Title VII cases.

Id, at 779 n. 41, 96 S.Ct. at 1271 n. 41.

The appellants interpret Franks as holding that a di-

minution of incumbents’ job expectations can never con-

stitute unusual adverse impact. Although they are less

explicit as to what would, in their view, constitute the

degree of impact envisioned by the Franks Court as suf-

ficient to preclude the granting of full, retroactive sen-

iority, two possibilities are suggested. First, circum-

stances unrelated to the impact on incumbents might sup-

port a finding of unusual adverse impact. Second, im-

plementing a seniority remedy so as to cause the dis-

charge of incumbent employees might result in “unusual

adverse impact.”

We find little support in Franks, the appellate decisions

of this and other courts that have applied Franks, or the

Supreme Court disposition in International Brotherhood

of Teamsters v. United States, 431 U.S. 324, 97 S.Ct.

1843, 52 L.Ed.2d 396 (1977) (Teamsters), for such a

limited interpretation of the “unusual adverse impact”

standard. Because the Franks Court was well aware that

the burden of granting retroactive seniority to discrimi-

nation victims falls primarily on innocent incumbents,

see 424 U.S. at 773 n. 33, 776-78, 96 S.Ct. at 1268 n.

33, 1270-71, there is no basis in either law or logic for

concluding that “unusual adverse impact” must reflect

15a

factors unrelated to the impact of the remedy upon in-

—— employees. Similarly, the Franks opinion no-

where states that only the resulting discharge of in-

cumbents will constitute unusual adverse impact. What

Franks does clarify is that full retroactive seniority

should not be routinely denied discrimination victims

merely because such relief will have some impact, as it

always will, on incumbents. Because neither the district

nor appellate courts in Franks had relied on the compet-

ing rights of incumbents as a ground for denying sen-

iority relief, the impact in that case was indeed “ab-

stract,” id. at 779 n. 41, 96 S.Ct. at 1271 n. 41, and was

not demonstrated by “facts and circumstances that would

not generally be found in Title VII cases,” id.

Our conclusion that Franks did not limit the “unusual

adverse impact” inquiry to the extent urged by the class

is supported by the Supreme Court disposition in Team-

sters. Again emphasizing that it is within the equitable

discretion of the district court, in the first instance, to

fashion a seniority remedy, the Court referred to the

“equitable balance that should be struck between the

statutory rights of victims and the contractual rights of

nonvictim employees,” 431 U.S. at 376, 97 S.Ct. at 1875,

and suggested in footnote that the number of victims, the

number of non-victim employees affected, the alternatives

available to incumbents, and the economic circumstances

of the industry would be relevant to the district court’s

exercise of discretion, id. at 376 n. 62, 97 S.Ct. at 1875,

n. 62. Focusing on the timing of the equitable remedy,

the Court observed that:

Especially when immediate implementation of an

equitable remedy threatens to impinge upon the ex-

pectations of innocent parties, the courts must “look

to the practical realities and necessities inescapably

involved in reconciling competing interests,” in order

16a

to determine the “special blend of what is neces-

sary, what is fair, and what is workable.“

Id. at 375, 97 S. Ct. at 1874 (citation omitted).

The courts of appeals similarly have not read Franks

as mandating so limited an inquiry as that urged by the

class. For instance, in Moore v. City of San Jose, 615

F.2d 1265, 1272 (9th Cir. 1980), the Ninth Circuit noted

the district court’s findings that, not only would no in-

cumbent lose his job, but that the seniority relief granted

the twelve class members would have minimal“ impact

on the incumbent workforce of 590 people. In Air Line

Stewards and Stewardesses Association, Local 550 v.

Trans World Airlines, Inc., 680 F.2d 1164, 1169 (7th

Cir. 1980), aff'd sub nom. Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234

(1982), this court relied in part on the likelihood that the

claimants, who constituted three percent of the incum-

bent workforce, could be reinstated in less than one-half

year through normal attrition. In Air Line Stewards and

Stewardesses Association, Local 550 v. American Airlines,

Inc., 573 F.2d 960 (7th Cir. 1978), cert. denied, 439

U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190, this court relied

in part on the representation made to the district court

that the class members, who again constituted approxi-

mately three percent of the incumbent workforce, would

return only to domiciles where openings occurred. Id.

This court also noted that the district court had made

“an admirable effort to sort out the likely impact of and

the ‘balance of equities’ surrounding the provision of ret-

roactive occupational seniority,” id. at 965, and had as-

sured itself that no present employees would lose their

jobs and “also that the number of returning employees

was not so large as to create undue pr tems,“ id. Fi-

nally, in Association Against Discrimination in T

r (2nd

Cir. 1981), cert. denied, 455 U.S. 988, 102 8. Ct. 1611, 71

L.Ed.2d 847 (1982), the Second Cireuit, in affirming the

17a

district court’s order of a freeze on incumbent promo-

tions in order to equalize promotional seniority among

current employees and victims of discrimination, noted

that it was possible the City could act to minimize the

burden on incumbents. /d. at 287.

The appellate cases discussed above compel the conclu-

sion that courts have considered numerous factors, not

just whether current employees would lose their jobs, in

granting or reviewing a grant of seniority relief.“ We

therefore reject the appellants’ argument that the court

below abused its discretion in considering the many differ-

ent kinds of impact a grant of full, retroactive seniority

would have on those persons currently employed by United

as flight attendants.

The only court of appeals case that arguably could be construed

to hold that it is an abuse of discretion, under Franks, not to grant

full, retroactive competitive seniority is Association Against Dis-

crimination in Employment, Inc. v. City of Bridgeport, 647 F.2d

256 (2nd Cir. 1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71

L.Ed.2d 847 (1982). In a portion of that opinion not discussed

supra, the Second Circuit held that the district court had erred in

granting less than all the benefits of seniority to discrimination

victims. The court noted that the plaintiffs had not specified what

benefits they had been denied, id. at 288, but suggested that the

plaintiffs should be provided with vacation and sickpay appropriate

to their “rightful place” in the seniority system and should have

the benefits of seniority for purposes of avoiding lay-off if the City

maintained a last-hired-first-fired seniority system.

Initially, we note that benefits such as vacation days and sick

18a

B. Application of Franks and Teamsters to this Case

Franks mandates that a finding of “unusual adverse

impact” be based on factors not generally found in a

Title VII case. 424 U.S. at 779 n.41, 96 S.Ct. at 1271

n.41. Teamsters suggests that the relevant considerations

would include the number of victims, the number of non-

victim employees affected, the alternatives available to

incumbents, and the economic circumstances of the in-

dustry. 431 U.S. at 376 n. 62, 97 S.Ct. at 1875 n. 62.

Relying on the first two factors enunciated in Team-

ters, the appellants argue that the ratio of class members

to incumbents in this case, sixteen percent, is less than

that in Franks, Teamsters and Association Against Dis-

crimination in Employment, Inc. v. City of Bridgeport,

647 F.2d 256 (2nd Cir. 1981), cert. denied, 455 U.S. 988,

102 S.Ct. 1611, 71 L.Ed.2d 847 (1982). Because none

of those cases precluded an award of full, retroactive com-

petitive seniority, and particularly because the Second

Circuit in the Bridgeport case held that the district court

had abused its discretion in ordering less than full sen-

iority, the appellants claim that the judge below should

have ordered the full measure of competitive seniority.

The difficulty with the class’ argument is that it focuses

on only two of the factors enunciated by the Teamsters

Court. The current economic conditions affecting the air-

line industry are extremely relevant to the present case

and, under Teamsters, were properly considered by the

district court. By contrast, economic considerations have

not been deemed pertinent to other courts of appeals de-

cisions regarding competitive seniority. We conclude,

*The appellants assert that the class members in Bridgeport

constituted twenty percent of the incumbent workforce. This repre-

ratio of the 102 persons ordered entitled to priority in

the district court to the workforce of 512. Because the

19a

therefore, that the prior case law has limited relevance to

evaluation of the district court’s application of Franks

and Teamsters to this case and reject the appellants’

suggestion that an award of retroactive competitive sen-

iority is required in this case because of the ratio of

class members to incumbents.

Having determined that the district court neither ig-

nored nor misapplied the controlling principles of law, our

task on review is to determine whether evidence in the

record supports its conclusions that an award of full,

retroactive competitive seniority would result in an “un-

usual adverse impact” on incumbents. Before undertak-

ing that review, however, we address the appellants’

contention that the district court mischaracterized the

relief they sought.

During the course of the trial below on reinstatement

issues, the class clarified that it sought reinstatement at

United only as openings permitted. This proposal was

conditioned in several ways, which are developed in detail,

infra. In his memorandum opinion, the district judge did

consider this openings proposal. He found it unworkable

because of the conditions upon which the class insisted.

The district court then also considered the impact of

Having determined that Franks and Teamsters require the dis-

trict court to evaluate carefully the many facets of impact that an

award of competitive seniority will have on innocent, incumbent

employees, the fact that we herein review the district court’s

denial, as a matter of discretion, of full competitive seniority relief

further distinguishes this case from previous decisions in which

this and other courts of appeals have reviewed a grant of full

seniority. See, e. g., Air Lines Stewards and Stewardesses Associa-

tion, Local 550 v. Trans World Airlines, Inc., 680 F.2d 1164 (7th

Cir. 1980), aff'd sub nom. Zipes v. Trans World Airlines, Inc., 445

U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 284 (1982); Moore v. City of

San Jose, 615 F.2d 1265, 1271-72 (9th Cir. 1980) ; Air Lines Stewards

and Stewardesses Association, Local 550 v. American Airlines, Inc.,

578 F.2d 960 (7th Cir. 1978), cert. denied, 489 U.S. 876, 99 S.Ct.

214, 68 L.Ed.2d 190.

20a

immediate reinstatement of all the class members and

concluded that “unusual adverse impact” would result.

He similarly considered the impact that would result if

the openings proposal were workable and were imple-

mented and, as to some of the categories of consequences

reviewed, found it to be somewhat less than the impact

of immediate reinstatement.

We find no error in the district court’s consideration of

the impact that would result from immediate reinstate-

ment of the class. Such analysis was wholly appropriate

in light of the mandate in Franks and Albermarle Paper

Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2872, 45

L.Ed.2d 280 (1975), that the district court should fashion

a remedy that would “make [the class] whole” for the

injuries suffered as a result of discrimination. Further,

the district court did not ignore the openings proposal but,

rather, found it both unworkable and the cause of signifi-

cant, adverse impact on incumbents if it were workable.

We are not persuaded, therefore, that the district court’s

“error” lay in its mischaracterization of the relief sought

by the class.

C. Review of the District Court’s Findings

A total of three proposals regarding seniority relief

were presented by the class. We first review the findings

regarding immediate reinstatement of the class. Second,

we review the determinations regarding the openings

proposals and, finally, we consider the class’ request for

relative seniority.

Throughout his opinion, the district judge grouped the

consequences. of granting the requested relief as follows:

(1) the possibility of furloughs and firings; (2) the po-

tential for involuntary transfers; (3) demotions to re-

serves; (4) impact on lineholder schedules; (5) the eco-

nomic impact on United; and (6) the impact on minority

hiring. The findings of “unusual adverse impact” relate

primarily to the considerations relevant to groups (1)

21a

and (2). In reviewing the lower court's findings, there-

fore, we shall address primarily the possibility of fur-

loughs and firings and the potential for involuntary

transfers.

1. Immediate Reinstatement.

The district judge found that if the 1,400 class mem-

bers were immediately reinstated by United, all incum-

bent attendants hired by United since March 7, 1977,

would be furloughed. Those incumbents who were fur-

loughed would suffer immediate financial consequences

from loss of income. Further, it is possible that many of

those furloughed as a result of reinstating the class, as

well as those flight attendants already on furlough, would

not be recalled before the five-year limit and would there-

fore effectively be “fired.”

As discussed in Section III (A), supra, the appellants

themselves seem to suggest that a discharge of incumbents

because of relief granted to discrimination victims might

constitute “unusual adverse impact.” The combination of

a very large class and an economically depressed airline

industry might well result in a significant number of

current United flight attendants losing their jobs. We

find ample support in the record for this finding and for

the district judge’s conclusion that such an impact would

be “unusually adverse.”

Immediate reinstatement would also result in a large

number of involuntary transfers. As indicated supra,

United maintains eleven separate domiciles for which

flight attendants “bid” based on their seniority. Working

from the assumption that returning class members would

seek assignment to the domicile nearest their current

residence, the district judge found that 147 claimants

would choose to go to Seattle, one of the most popular

domiciles. If they did, thirty-five percent of the flight

attendants currently domiciled in Seattle would be sub-

ject to involuntary transfer to another domicile. Those

22a

subject to transfer would be all Seattle-based flight at-

tendants hired after September 30, 1969.

Because the popular Miami domicile is considerably

smaller than the Seattle one, the impact there would be

even more striking. If the 143 claimants who live nearest

the Miami domicile all returned, seventy-six percent of

the current Miami domiciliaries would be subject to

transfer. This would include all flight attendants cur-

rently stationed in Miami who were hired after February

28, 1966.

The effect of an involuntary transfer is to force a flight

attendant either to disrupt his or her family and com-

munity life or to commute to the new domicile. There is

evidence in the record of this case that many of these

displaced incumbent flight attendants would resign their

positions with United rather than suffer the disruption

associated with transfer or incur the costs, in both time

and money, involved in commuting.

Choosing to resign in the face of two equally unsatis-

factory alternatives—relocating or commuting—may be

marginally preferable to being furloughed for an extended

time or effectively discharged upon the expiration of recall

rights. The difference, however, is merely a matter of

degree. There is ample evidence in the record to support

the district judge’s findings regarding the impact of in-

voluntary transfers on incumbents and the likelihood that

such transfers would result from the immediate reinstate-

ment of the class members. We cannot say that the dis-

trict judge abused his discretion in characterizing this

impact as unusually adverse.

Of the other consequences of immediate reinstatement

discussed by the district court, the most significant is the

impact on minority flight attendants currently employed

by United. Pursuant to a consent decree entered in 1976,

EEOC v. United Airlines, Inc., No. 78 C 973 (N. D. IIl.

1976), aff'd, 560 F. 2d 224 (7th Cir. 1977), cert. denied,

23a

434 U.S. 1063, 98 S.Ct. 1237, 55 L.Ed.2d 764 (1978),

United has hired an increasing number of flight attend-

ants who are members of minority groups in recent years.

Accordingly, these persons have relatively low seniority.

They would, therefore, be more affected as a group by the

immediate reinstatement of the class than the other in-

cumbent flight attendants. Evidence in the record sug-

gests that immediate rehiring of all class members would

decrease the percentage of minority flight attendants

from fifteen to ten percent. Further, because of the many

furloughs that would result from implementation of this

remedy, there would be less or no hiring by United in the

next several years and the number of minority members

working as United flight attendants would not be in-

creased by new hires.

The judge below did not find that the consequences to

minority flight attendants would, by themselves, consti-

tute “unusual adverse impact.” Nonetheless, we believe

the district judge correctly considered this impact to be

significant. When it is considered along with the possi-

bility of furloughs, possible firings, and involuntary trans-

fers, the impact on minorities buttresses the district

court’s conclusion that “unusual adverse impact” would

result if the class members were immediately reinstated.

2. Openings Proposal.

The claimants do not suggest that they will wait pas-

sively for openings to occur among the rank of flight

attendants without regard to how long the delay in re-

instatement might be. The class conditioned their open-

ings proposal on all claimants being fully reinstated

within two and one-half to three years. McDonald indi-

cated that if that timetable were not met, she would

“undoubtedly . . . petition the court to modify the decree.”

Second, all openings were to be filled by class members

before any furloughed incumbent flight attendant was

recalled to work. Third, class members were to receive

:

54

a

24a

“front pay” consisting of full pay and benefits until all

class members were reinstated.°

The proposal also required United to “take appropriate

steps to encourage the creation of openings.” Two spe-

cific suggestions were made by the class: initiation of an

early retirement program and the creation of a continuing

“shared work” program.

The district court found that it lacked power to impose

either the early retirement or shared work program. Ab-

sent any allegation that the United-AFA collective bar-

gaining agreement violates the Civil Rights Act or wrong-

fully perpetuates the effects of past discrimination, the

court below lacked the power to rewrite the terms of that

agreement to provide for either of the programs sug-

gested by plaintiff class. See Myers v. Gilman Paper

Corp., 544 F.2d 837, 857 (5th Cir. 1977), amended and

modified on other grounds, 556 F.2d 758, cert. dismissed,

434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59.

Absent affirmative action to encourage openings, the

district court found that the openings proposal was un-

workable, primarily because of the two and one-half to

three year time limit. The feasibility of meeting the time

limit turns primarily on two factors: the anticipated at-

trition from the ranks of flight attendants and the antici-

pated growth in the total number of flight attendants

required by United.

Experts for both the plaintiffs and United testified as

to attrition rates. The plaintiffs’ expert, Dr. Carl Hoff-

man, predicted an attrition of between 670 and 833 flight

attendants by year-end 1983. These figures represent an

attrition rate of approximately three and one-half percent.

United’s expert, however predicted that the attrition rate

would be something under one percent over the next five

years, resulting in 367 available places for flight attend- .

As indicated in Section I(B) (8), the district court has not yet

resolved the issue of front pay.

25a

ants. Judge Moran did not credit one expert over an-

other. He noted that both were subject to challenge on

methodological grounds, and “most importantly, both are

subject to certain imponderables beyond the control of

the airline or the flight attendants that will greatly affect

the rates of attrition.”

The failure to resolve definitively how much attrition

will occur among United flight attendants is not critical,

however, because it is clear that 1,400 class members

could not be reinstated within the time frame set by Mc-

Donald without some growth in the total number of active

flight attendants required by the airline.

United had originally projected an annual growth rate

of four to five percent. This would have resulted in the

recall of 102 furloughees in 1981. Instead, 125 flight at-

tendants were furloughed in July, 1981. Another 350

flight attendants were furloughed in September, 1981,

and because of the strike by the professional air traffic

controllers and the resulting reduction in the number of

United flights, another 547 were furloughed in October,

1981. United’s “growth projections” for 1981 were ac-

cordingly off by 1,124 individuals.

United now projects no growth for the next few years.

According to the brief submitted by the AFA, there are

still 1,255 United flight attendants on furlough. It is

apparent that, absent a dramatic change in the economies

affecting the airline industry, it will be impossible for

United both to recall those flight attendants currently on

furlough and to provide places for the 1,400 class mem-

bers within the two and one-half to three year limit set

by the class. Even if the class members could all be re-

instated within that period, which appears unlikely, the

result is that some current furloughees would be effec-

tively discharged at the expiration of their recall rights.

This is the same effect that the district judge found, when

considering immediate reinstatement of the class, to con-

stitute “unusual adverse impact.”

26a

Even if the openings proposal were “workable,” there-

fore it is likely that some furloughees would eventually lose

their job with United. This effect would be exacerbated

if the district court awards front pay to the class and

United creates artificial vacancies by furloughing incum-

bent flight attendants. United has indicated that it would

take such action in order to avoid paying full salaries to

those waiting for reinstatement. Although no award of

front pay has yet been made, this possibility is relevant

because it suggests that the impact of the openings pro-

posal would be virtually indistinguishable from that of

immediate reinstatement insofar as furloughs and pos-

sible firings are concerned.

Further, even if the openings proposal were workable

within the conditions set by the class, there is no indica-

tion that the impact, in terms of involuntary transfers,

would be appreciably less than if the class members were

reinstated immediately. The greatest attrition occurs

among the more junior flight attendants. As a result,

the majority of openings will occur at the less popular

domiciles. Because of the significant competitive seniority

that returning class members would have, they would gen-

erally be able to utilize that seniority to be stationed at

the domicile of their choice. There is simply no guarantee

that openings would occur at the domiciles that class

members would request. If they did not, incumbents now

stationed at those domiciles would have to be involuntarily

transferred to the less popular domiciles where the open-

ings had occurred.

The only other alternative would be for class members

to wait until an opening occurred at the domicile of his

or her choice or to accept employment wherever a vacancy

occurred, regardless of domicile. The class members have

not indicated a willingness to do either. The time limit

set by the class precludes the first option which might, as

the district court recognized, involve an inordinately long

wait. Further, even if the class members indicated a will-

27a

ingness to suffer such a long delay in reinstatement,

United might be expected, if front pay were awarded, to

create false vacancies to put the class members back to

work at domiciles of their choice. The result in this case

would be virtually the same as if the class members were

immediately reinstated.

Both in terms of furloughs or firings and the potential

for involuntary transfers, there is ample support in the

record for the district court’s conclusion that the impact

on incumbents resulting from implementation of the open-

ings proposal would be only slightly less than if the entire

class were immediately reinstated. More importantly,

there is support for the judge’s conclusion that the condi:

tions insisted upon by the class as part of the openings

proposal simply cannot be met. Bearing in mind that, in

Teamsters, the Supreme Court indicated that in “devising

and implementing remedies under Title VII. . a court

must. . determine the ‘special blend of what is neces-

sary, what is fair, and what is workable,’” 481 U.S. at

375, 97 S.Ct. at 1874 (citation omitted), we find no abuse

of discretion in the district court’s rejection of the class’

openings proposal.

8. Relative Seniority.

Pursuant to the class’ motion to reconsider, the district

judge considered and rejected an alternative proposal

which would have given class members the same “rela-

tive” seniority they had when they left United. Under

this relative seniority proposal, a class member who was

in the sixty-seventh percentile for seniority purposes when

she left United because of the no-marriage rule would,

upon reinstatement, be placed at that same percentile.”

1% The district court denied the motion to reconsider without

opinion. We reject the plaintiffs’ contention that the court’s failure

to issue an opinion constitutes “clear error” under Franks. The

court had advised the parties, prior to the trial on reinstatement

issues, that he would consider the full “gamut” of possible seniority

28a

At the time of the plaintiffs’ terminations, sixteen percent

were in the top quarter of the seniority rankings, twenty-

seven percent were in the second quarter, thirty-five per-

cent were in the third quarter, and twenty-two percent

were in the bottom quarter.

Under the remedy devised by the district court, approxi-

mately ninety-three percent of the claimants will be in

the bottom quarter of the seniority list. The plaintiffs

argue that stagnation at the top of the seniority list

means that they will remain at the bottom of the list for

the rest of their careers. They therefore suggest that the

relative seniority proposal at least achieves the district

court’s apparent goal of placing them where they were

when they left United, whereas the relief granted by the

court below actually gives them far less.

The difficulty with the relative seniority proposa] stems

largely from the change in how flight attendants view

their flying experience in the 1980’s as compared to the

1960’s. What was once viewed as a temporary, glamorous

job is now considered a career position. As a result, a

flight attendant who began working for United in 1966

had accrued as much relative seniority by late 1968 as a

flight attendant who began in 1970 had by 1982. The rela-

tive seniority proposal effectively equates twenty months

of experience fifteen years ago to twelve years of more

recent experience. Such a result places a great burden on

incumbents who were in no way responsible for United’s

no-marriage rule.

Whether that burden would, in a different economic

setting, be consistent with the shared-burden rationale

remedies. The detailed opinion issued by the district judge demon-

strates that he fulfilled this promise. As our review of the relative

seniority proposal indicates, see infra, its impact is different in only

a matter of degree from the proposals discussed at length by the

district court. We find no error in the district judge’s failure to

write yet another lengthy opinion concerning the same issues that

had already been treated in depth in the memorandum opinion.

29a

articulated in Franks, 424 U.S. at 777, 96 S.Ct. at 1270,

need not be resolved because implementation of the rela-

tive seniority proposal would, in the context of this case,

result in “unusual adverse impact” on incumbents. In

light of the small attrition rate at United and, more im-

portantly, the lack of anticipated growth in the total num-

ber of flight attendants required, the effect of granting

the plaintiffs relative seniority would be to require the

existence of 951 openings in the ranks of flight attendants

before the most senior of the current furloughees would

be recalled. Because there are currently 1,255 flight at-

tendants on furlough, there would have to be over 2,000

openings for flight attendants within the five-year limit,

at the conclusion of which furloughees lose their recall

rights, in order for the class members to return to United

without some percentage of incumbent furloughees losing

their job as a result.

The relative seniority proposal, if implemented on an

“openings” basis, as apparently the class intends, does

not resolve the impossibility of reinstating the class mem-

bers within the time limit set by the class. The district

court found it unlikely that sufficient openings would oc-

cur to accommodate the class members if they were hired

before any furloughees were recalled. Utilizing the rela-

tive seniority approach, some furloughees would be re-

called before some of the least senior class members. As

a result, more than 1,400 openings would be required to

reinstate both the class and the more senior of the current

furloughees within the time limit. The relative seniority

proposal, implemented on an openings basis within the

time limit set by the class, is even less workable than the

openings approach presented by the class during the trial

below.

To reintegrate immediately the 1,400 class members

into the active work force, even with relative seniority,

would differ from immediate recall with full seniority

only in a matter of degree. The furlough of flight attend-

80a

ants now in active service would be necessary. The possi-

bility is strong that many of the furloughees, quite likely

those laid-off as a result of the reinstatement of the plain-

tiffs and almost certainly some of the present furloughees,

would not be recalled within the five years and would,

therefore, lose their jobs.

Similarly, because many of the class members would

enter the ranks of flight attendants with substantial sen-

iority, the likelihood of involuntary transfers of incum-

bents remains extremely high. This is true whether

reinstatement were implemented immediately or on an

openings basis.

In summary, we conclude that those factors compelling

a conclusion of unusual adverse impact under the immedi-

ate reinstatement or openings proposals are mitigated to

only a slight extent if the class members are granted rela-

tive seniority. The remaining “unusual adverse impact”

on the incumbents makes this remedy, under Franks,

inappropriate and the district judge did not abuse his

discretion in declining to adopt it.

IV. ISSUES RAISED ON CROSS-APPEAL

On cross-appeal, United urges that the district court

erred in awarding the plaintiff class seniority from the

date of original hire for purposes of compensation and

various benefits such as the number of vacation days and

number of passes a flight attendant receives.“ Unlike

competitive seniority, see Section I(B)(1) supra, the

burden associated with this award of non-competitive sen-

iority falls primarily on United rather than on incum-

bent flight attendants.

11 Referring to the terminology developed in Section I(B) (1),

supra, seniority from date of original hire was awarded the class

for purposes of company seniority and classification seniority

utilized in the absolute sense. Apparently, compensation is the

only variable determined by this absolute use of classification

seniority.

31a

United asserts that Franks requires a district court to

“balance the equities” in awarding seniority relief and

offers two arguments in support of its conclusion that the

equities favoring the plaintiffs are few. As discussed in

Section III(A) supra, Franks created a presumption in

favor of full retroactive seniority relief, implemented on

an openings basis, in Title VII cases. Franks, 424 U.S.

at 779 n. 41, 96 S.Ct. at 1271 n. 41. Arguably, the ap-

proach taken by the Teamsters Court could be charac-

terized as a balancing of equities. 431 U.S. at 374-76, 97

S.Ct. at 1874-75. The court below reconciled the language

in Franks and Teamsters by applying the Franks pre-

sumption, requiring United and the AFA to carry the

burden of demonstrating unusual adverse impact,” and

relying on the factors enumerated in Teamsters as rele-

vant to that showing. Absent any explicit statement in

Teamsters that the standard enunciated in Franks was

no longer viable, we believe the approach taken by the

district court is correct and have followed the same mode

of analysis on appeal. We are not persuaded, therefore,

that United’s characterization of this case as one involv-

ing a mere balancing of equities is correct.

Our reluctance to resolve this case by a balancing of

equities is quite relevant to evaluation of one of the argu-

ments posed by United. United stresses the equities in

its favor: that the airline promptly abrogated the no-

marriage rule once it became clear that the rule violated

Title VII, and that, although other airlines had similar

rules during the period that United’s was in effect, only

United is subject to.a potential liability that includes an

increase in annual operating expenses of approximately

$21,000,000. United also stresses the change in how flight

attendants view their position—what was once a job of

limited duration is now a career position—and concludes

that there is only a one-in-three chance that a flight at-

tendant who married between 1965 and 1968 would still

be flying for the airline, even if the no-marriage rule had

never existed. In this regard, United finds it significant

82a

that less than ten percent of the potential class members

reapplied to United as preferred hires after abrogation

of the rule.

Finally, United asserts that the incumbent flight attend-

ants are extremely hostile to the class members and that

such hostility, together with service reductions United

will be forced to make as a result of the relief granted

the class, will have a negative impact on the public served

by the airline.

Although the judge below did not address all of these

factors in the portion of his opinion discussing company

seniority, the district court opinion, read as a whole, does

recognize the “equities” favoring United. The conclusion

drawn by Judge Moran regarding these issues differs

from that of United primarily because the district court

read Franks as mandating the fullest possible relief for

the class. Because we concur with the district judge’s

reliance on, and interpretation of, Franks, we are not

persuaded by United’s argument that the district court

failed to weigh properly the equities in this case.

The second argument raised by United in support of its

contention that the award of non-competitive seniority was

an abuse of the district court’s discretion relies on United

Air Lines, Inc. v. Evans, 431 U.S. 558, 97 S.Ct. 1885, 52

L.Ed.2d 571 (1977), Zipes v. Trans World Airlines, Inc.,

455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), and

Ford Motor Co. v. EEOC, —— U.S. ——, 102 S.Ct. 3057,

78 L.Ed.2d 721 (1982). United asserts that because many

members of the plaintiff class did not individually file

timely charges with the EEOC and did not subsequently

return to United as “preferred” hires after abolition of

the no-marrige rule, they have failed to meet the prerequi-

sites necessary to an award of retroactive seniority for

non-competitive purposes.

12 United also relies on this argument as an alternative ground

in support of the district court’s judgment regarding competitive

88a

In United Air Lines, Inc. v. Evans, 431 U.S. 553, 97

S.Ct. 1885, 52 L.Ed.2d 571 (1977), the plaintiff, who had

left United because of the no-marriage rule,“ did not

file a charge with the EEOC within ninety days. Approxi-

mately four years later, in 1972, she returned to United

but was not granted retroactive seniority upon her return.

The following year, Evans filed charges with the EEOC

alleging that United had discriminated against her and

continued to do so. The Supreme Court held that, because

of Evans’ failure to filed a timely charge before the

EEOC in 1968, the airline’s discriminatory action in dis-

charging her was of no legal consequence. Id. at 558, 97

S.Ct. at 1889. Further, the Supreme Court held that

Evans demonstrated no continuing violation of Title VII

because she introduced no evidence that she was being

treated differently, pursuant to United’s seniority system,

from other flight attendants—male or female—who had

been discharged for non-discriminatory reasons and sub-

sequently rehired. Id.

Evans is distinguishable from the present case in that

Evans was not a class action whereas the present case is.

It is well established that, in a Title VII class action,

unnamed plaintiffs are not precluded from class member-

ship merely because they did not individually file timely

EEOC charges. Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 396, 102 S.Ct. 1127, 1134, 71 L.Ed.2d 234

(1982) ; United Airlines, Inc. v. McDonald, 482 U.S. 385,

389 n. 6, 97 S.Ct. 2464, 2467 n. 6, 58 L.Ed.2d 428 (1977) ;

Franks v. Bowman T'ransportation Co., 424 U.S. 747, 771,

96 S.Ct. 1251, 1267, 47 L.Ed.2d 444 (1976); Albermarle

Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362,

2370 n. 8, 45 L.Ed.2d 280 (1975). United recognizes this

distinction yet urges that the failure of individual class

seniority. Because we have resolved that issue on the grounds set

forth in the district court opinion, we will not consider United's

alternative ground in that context.

18 Evans is a member of the claimant class in this case.

34a

members to file timely EEOC charges is nonetheless rele-

vant to the “balancing of equities” required in this case.

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102

S.Ct. 1127, 71 L.Ed.2d 234 (1982), is relevant to this

prong of United’s argument.

The plaintiff class in Zipes involved a large percentage

of persons who had neither themselves filed charges with

the EEOC nor been discharged, pursuant to Trans World

Airlines’ rule prohibiting mothers from employment as

flight attendants, within ninety days preceding the filing

of charges by other class members. This court had held

that this subgroup of the plaintiff class was jurisdiction-

ally barred from relying on Title VII. In re Consolidated

Pretrial Proceedings, 582 F.2d 1142 (7th Cir. 1978),

rev'd sub nom. Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).

While petitions for certiorari were pending on the jur-

isdictional issue, the plaintiff class and the airline reached

a settlement agreement that was approved by the district

court and by the Seventh Circuit. That agreement pro-

vided for retroactive seniority relief for the entire class,

including those members whom the Seventh Circuit had

held jurisdictionally barred from Title VII relief.

Although the Supreme Court reversed the Seventh Cir-

cuit’s decision regarding jurisdiction, it affirmed this

court’s approval of the settlement agreement. Zipes, 455

U.S. at 401, 102 S.Ct. at 1186. Concurring in the result

as to the award of retroactive seniority, Justice Powell

wrote:

[W]hen the victims of discrimination have slept on

85a

ing whether to award competitive-status seniority,

and the presence of a settlement between the em-

ployer and the plaintiffs should not affect the balanc-

ing of these equities.

Id. at 401 n. 1, 102 S.Ct. at 1137 n. 1 (opinion of Powell,

J., concurring in the judgment in No. 80-951).

The above-quoted language from Justice Powell’s opin-

ion forms the primary basis for United’s argument that it

is inequitable to award retroactive seniority for non-

competitive purposes to the plaintiff class in this action.

The argument is inapposite for two reasons. First,

Justice Powell’s remarks are directed to competitive rather

than non-competitive seniority. Second, United overlooks

the fact that the class members in this case are not in

the same position of having “slept on their rights” as the

subclass of plaintiffs in Zipes. The class membership in

this case was carefully limited to include only flight at-

tendants who had left United pursuant to the no-marriage

rule within the period from ninety days before the filing

of EEOC charges until United’s abolition of the rule.

Unlike the relevant subclass of plaintiffs in Zipes, all

members of the class in the instant case have a timely

EEOC charge upon which to rely. To penalize them for

not having individually filed EEOC charges would be con-

trary to the well established rule that individual, timely

filings are not essential to a class action. We therefore

reject United’s argument insofar as it rests on the prem-

The third prong of United’s argument is based

Motor Co. v. EEOC, —— U.S. ——, 102 S.Ct.

L.Ed.2d 721 (1982). In that case, several women

58

FRG si

af

Fourth

86a

Circuit, the Supreme Court held that, absent unusual cir-

cumstances, an employer’s unconditional offer of the job

previously withheld ends the accrual of potential back pay

liability.

United relies on Ford, by broad analogy, for the propo-

sition that the failure of the plaintiffs to seek available

rehire by United weighs the equitable balance in favor of

the airline. We are not persuaded that Ford has relevance

to the present case. Not only does this appeal not involve

issues of back pay, but more importantly, it is not a case

in which United unconditionally offered employment to

any of the flight attendants who had left during the era

of the no-marriage rule. United’s “offer” was no more

than a statement, in its publicity aimed at potential flight

attendants, to the effect that priority would be given to

applicants who had previously worked in positions involv-

ing “customer service.” This is obviously something short

of an unconditional offer of employment made directly to

the victim of discrimination. Further, although the

former flight attendants may have known that United had

abandoned its no-marriage policy and may have known

that they would be given hiring preference if they re-

applied, neither of these facts is established in the record.

We therefore conclude that Ford has little relevance to

this case.

We conclude that the district judge did not abuse his

discretion in construing Franks to require an award of

seniority for non-competitive purposes from date of orig-

inal hire. The judge below evaluated the increased costs

to United occasioned by the relief ordered and found that,

in light of United’s recent assumption of increased com-

pensation costs pursuant to collective bargaining,“ the

The district judge found that the relief ordered would result

in less than a ten percent rise in gross flight compensation costs

to United. In comparison to this figure, United’s recent contract

negotiations resulted in assumption of a twenty-three percent in-

crease in 1980 and an additional ten percent increase in 1981.

12 ee

87a

economic impact on the airline could not be considered

“unusually adverse.” Although a greater measure of non-

competitive than competitive seniority was awarded, the

district judge sought to insure that each type of seniority

relief was the maximum measure that would not result

in “unusual adverse impact.” We find no abuse of dis-

cretion, under Franks, in this approach.

V. DENIAL OF INJUNCTIVE RELIEF

In August, 1982, United indicated that on October 1,

1982, it would recall 175 furloughees. The class petitioned

for a stay of the recall. The class proposed that plaintiffs

with greater days-of-service seniority (the measure of

competitive seniority awarded by the district court)

should be recalled instead of the incumbent furloughees or,

alternatively, that action such as denying the recalled

furloughees the accrual of competitive seniority should

be ordered to prevent deterioration of the class’ competi-

tive position. The district judge did not grant the sought

relief and, according to the class, abused his discretion in

so doing.

We find no abuse of discretion in the district judge’s

refusal to require that claimants be recalled in place of

incumbent furloughees because, absent the results of any

class membership hearings at that time, it would have

been impossible to know if the claimants recalled would

ultimately be found to be members of the class.

We similarly find that the district judge did not abuse

his discretion in refusing to order that recalled fur-

loughees be denied the accrual of competitive seniority.

Such a denial would be contrary to the terms of the col-

lective bargaining agreement between United and the

AFA, and, absent any assertion of illegality in that agree-

ment or an assent to the denial of competitive seniority,

the district court lacked power to alter the terms of the

agreement. See Myers v. Gilman Paper Corp., 544 F.2d

837 (7th Cir. 1977), amended and modified on other

88a

grounds, 556 F.2d 758, cert. dismissed, 434 U.S. 801, 98

S.Ct. 28, 54 L.Ed.2d 59.

Two other forms of relief suggested by the class per-

tained to the granting of extra competitive seniority to

claimants in light of the recall. The district judge de-

clined to rule on these requests.

The first of the alternative suggestions was to permit

claimants with greater seniority than the recalled fur-

loughees to accrue competitive seniority from the date of

the recall. The primary difficulty that would arise if such

relief were granted is that if the 300 to 350 claimants

with greater competitive seniority than the most senior

furloughees were awarded this “extra” seniority, the re-

lief bears a limited relationship to the recall which

involved only 175 furloughees. If, on the other hand, the

extra seniority were awarded only the 175 most senior of

the claimants, the possibility exists that the beneficiaries

of this seniority grant would subsequently be determined

not to be members of the plaintiff class.

The second of the alternatives suggested by the class

was to permit all claimants to begin accruing competitive

seniority from the date of the recall or from the date of

the district court’s opinion on reinstatement questions

issued. While this approach eliminates the difficulties

associated with awarding extra seniority to just some of

the class members, it substantially alters the reinstate-

ment relief ordered by this district judge in his memo-

randum opinion. Because the district court’s resolution

of this extremely complicated case sought to grant class

members the fullest possible seniority remedy without

creating an “unusual adverse impact” on incumbents, it

necessarily involved a careful balancing of rights and

consequences. We cannot say that the district court

abused its discretion in declining to alter that balance

merely because 175 furloughees were recalled.

Although we find no abuse of discretion in the district

court’s failure to alter at this time the seniority remedy

89a

granted, we are cognizant that many variables remain in

this case. If the economic conditions affecting United,

conditions that are largely responsible for the finding of

“unusual adverse impact,” take a drastic turn for the

better and numerous furloughees are recalled, or if the

class determination hearings stretch on for longer than

anticipated, it is possible that the district judge will need

to make adjustments as to when class members begin

accruing competitive seniority. Nothing in this opinion,

of course, precludes the district judge from ordering such

additional relief upon a showing that modification of the

original order is required.

CONCLUSION

Having considered all the arguments urged by the

parties and intervenors on this appeal, for the reasons

stated in the foregoing opinion, the judgments of the

district court regarding the appropriate measure of senior-

ity relief and the denial of injunctive relief are

AFFIRMED.

40a

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 70 C 1157

CAROLE ANDERSON ROMASANTA, et al.,

and

LIANE BuIx MCDONALD, on her own

behalf and on behalf of others,

Plaintiffs,

vB.

UNITED AIR LINES, INC., a corporation,

Defendant.

ASSOCIATION OF FLIGHT ATTENDANTS,

Intervenor.

[Filed January 12, 1982]

MEMORANDUM AND ORDER

The original plaintiffs filed this action in 1970 chal-

lenging defendant United Air Line’s rule requiring

stewardesses to step down from their positions upon mar-

riage. That same year the rule was held to violate the

provisions of Title VII of the Civil Rights Act prohibit-

ing discrimination in employment on the basis of gender.

But only now, almost twelve years from the date of filing,

has the question of remedies begun to be addressed. In

May 1981 this court held a three-week evidentiary hear-

ing concerning reinstatement of those former women em-

ployees forced to resign during the late 1960s upon their

41

marriages. The focus of that hearing was whether the

granting of such relief would have an “unusual adverse

impact” upon United and its current work force of flight

attendants. Franks v. Bowman Transportation Co., 424

U.S. 747 (1976). What follows herein, in opinion form,

are the court’s findings of fact (pp. 11-44) and con-

clusions regarding reinstatement in this instance (pp.

44-53).

I. INTRODUCTION

This case is as old as Title VII of the Civil Rights Act

itself; its origins date back to the mid-1960s. The dis-

pute is over a rule which now can only be viewed as an

historical anomaly. Until November 7, 1968 United Air

Lines, Inc. (“United”), like most other airlines, required

its women flight attendants to resign their positions upon

their marriages.

From a contemporary perspective, it is almost a matter

of faith that work rules such as the no-marriage policy

are flatly inconsistent with the precepts of Title VII.

These days the presence of married flight attendants

aboard United’s aircraft seems almost the rule and not

the exception. No one disputes that these women have

been easily integrated into the work force without dimin-

ishing the quality of services provided by the airline or

causing a drop in demand for air travel. Even United

must wonder why it adopted a work rule which forced it

to bear the additional cost of training 8,500 new hires

between 1945 and 1967. Binder, Sex Discrimination in

the Airline Industry: Title VII Flying High. 59 Cal.

L. Rev. 1091, 1101 n. 59 (1971).

But while the unlawfulness and inefficacy of the no-

marriage rule is apparent today, the issue was not always

considered so clear-cut. Legal challenges to the airline’s

policies were initiated as early as 1965 in arbitration

proceedings. In this case certain of the class members

filed grievances with the Equal Employment Opportunity

Commission (“EEOC”) as early as January 25, 1966.

42a

McDonald v. United Air Lines, Inc., 587 F.2d 357, 361

(7th Cir. 1978), cert. denied, 442 U.S. 934 (1979). The

Commission, however, struggled for years with the issue

before concluding, only after extensive industry-wide hear-

ings in 1968, that the no-marriage rule violated the Civil

Rights Act. Neal v. American Airlines, Inc., CCH Emp.

Prac. Guide J 6002 (1968) ; Colvin v. Piedmont Aviation,

Inc., CCH Emp. Prac. Guide J 6003 (1968). At least two

early court decisions upheld the practice. See Cooper v.

Delta Air Lines, Inc., 274 F. Supp. 781 (E.D. La. 1967) ;

Lansdale v. United Air Lines, Inc., 2 FEP Cases 462

(S.D. Fla. 1969), rev’d per curiam, 487 F.2d 454 (5th

Cir. 1971).

In a case related to this one, Sprogis v. United Air

Lines, Inc., 308 F. Supp. 959 (N. D. III. 1970), aff'd. 444

F.2d 1194 (7th Cir. 1971), cert. denied, 404 U.S. 991

(1971), the courts first held the no-marriage rule illegal.

With liability established in this action as early as 1970,

this case should have long since been closed. But subse-

quent proceedings failed to proceed smoothly and the case

has ripened to an age and to a dimension unparalleled by

virtually any other Title VII lawsuit.

Not until 1978 was the present scope of the action

finally defined. The case originally was filed by Carole

Anderson Romasanta on behalf of herself and other

former United flight attendants. In its early stage the

litigation largely was sponsored by the flight attendants’

union, then the Air Line Pilots’ Association (“ALPA”)

and now known as the Association of Flight Attendants

(“AFA”). The court initially refused to certify the

Romasanta class, instead permitting twelve other former

flight attendants to proceed “by way of joinder” as addi-

tional parties. When Romasanta refused to challenge that

order, the decision was appealed by Liane Buix Mc-

Donald (“McDonald”), an excluded member of the puta-

tive Romasanta class, as an intervenor. In 1976 the

Court of Appeals for the Seventh Circuit reversed the

43a

district court’s denial of class certification and remanded

the case for further proceedings. Romasanta v. United

Air Lines, Inc., 587 F.2d 915 (7th Cir. 1975), aff'd. sub

nom. United Air Lines v. McDonald, 432 U.S. 385 (1977).

McDonald has remained the current class representative

to this date and AFA has now intervened to represent the

interests of the current work force.

Upon remand the composition of the class was subject

to still further dispute. At one point the district court in-

cluded in the McDonald class only those former employees

who were discharged by the airline. The exclusion of those

former flight attendants who resigned from their posi-

tions because of the rule, rather than waiting to be fired,

was also reversed by the Court of Appeals. In McDonald

v. United Air Lines, Inc., 587 F.2d 357 (7th Cir. 1978),

cert, denied, 442 U.S. 934 (1979), the court held that both

discharged and resigned flight attendants should be in-

cluded in the McDonald class. Accordingly, the case was

once again remanded to the district court, the class now

being composed of all those individuals terminated on

account of marriage between October 27, 1965 and No-

vember 7, 1968.

In 1979 the case was transferred to this court for pur-

poses of awarding class-wide relief. To contend, as plain-

tiffs do, that United has wrongfully drawn out these pro-

cedings as a delaying action solely to frustrate meaning-

ful relief to the class, overstates the matter. In a real

sense, United had successfully litigated this action prior

to 1976, confining it to finite and limited dimensions, and,

until 1978, restricted the scope of the class. Only after

that time did the gargantuan proportions of this case

become established. What cannot be overstated, however,

is the uniqueness of this action as it now stands. The

class is enormous—comprising as many as 1800 former

women flight attendants. An unprecedented number of

those employees now seek reinstatement with full senior-

ity. Based on a random sampling of class members during

44a

discovery in the past two years, approximately 1400 class

members are still interested in returning to their old jobs

after some 18 to 16 years of litigation.

Finally, this case is unique in the ironies it now pre-

sents. The Civil Rights Act’s prohibitions against sex-

based discrimination and this case grew out of the

“women’s movement” of the late 1960s and the past

decade. That movement was the motivating cause of un-

paralleled changes in women’s roles in American society,

including the role of the airline flight attendant. In this

case, however, because of the passage of time and the

pressures of economics, the result has an unfortunate

twist. One class of women, the claimants, are pitted

against another class of women, the current flight attend-

ants, for a limited number of job positions at the airline.

The “sisterhood” that might otherwise exist between these

two groups has now been frustrated by competition for

existing positions, perhaps the last casualty of the no-

marriage rule.

II. LEGAL PRINCIPLES

The legal parameters of permissible relief are defined

by the purposes of Title VII: “to make persons whole for

injuries suffered on account of unlawful employment dis-

crimination.” Albermarle Paper Co. v. Moody, 422 U.S.

405, 418 (1975). As the Supreme Court noted in Franks

v. Bowman Transportation Co., 424 U.S. 747 (1976)

(“Franks”), the attainment of this “make whole“ ob-

jective requires “that persons aggrieved by the conse-

quences and effects of the unlawful employment practices

be, so far as possible, restored to a position where they

would have been were it not for the unlawful discrimina-

tion.” Franks, supra at 764. To this end, the Franks

court concluded that an award of retroactive seniority is

presumptively warranted. Franks, supra at 766 (“It can

hardly be questioned that ordinarily such relief will be

necessary to achieve the ‘make whole’ purposes of the

45a

Act.”). However, the inquiry here is just not that simple.

The Supreme Court also recognized that the interests of

incumbent employees must be considered in determining

an appropriate remedy. While retroactive seniority can-

not be withheld merely because incumbents may be af-

fected adversely, the court clearly stated that an award

of seniority status is not required in all circumstances.

Franks, supra at 770, 779. Rather, the fashioning of

appropriate Title VII remedies has been left to “the

sound equitable discretion of the district courts.” Franks,

supra at 770.

In Franks, and later in International Brotherhood of

Teamsters v. United States, 431 U.S. 324 (1977) (Team-

sters“), the Court attempted to give some substance to its

general equitable charge. In a now famous footnote, the

Franks Court stated:

[I]n exercising their equitable powers, district courts

should take as their starting point the presumption

in favor of rightful-place seniority relief, and proceed

with further legal analysis from that point; and that

such relief may not be denied on the abstract basis

of adverse impact upon interests of other employees

but rather only on the basis of unusual adverse im-

pact arising from facts and circumstances that would

not be generally found in Title VII cases.

Franks, supra at 779, n. 41. In Teamsters the court

added further content by citing prior language from

Lemon v. Kurtzman, 411 U.S. 192, 200-201 (1974), com-

manding courts to “look to practical realities” such as the

“number of victims, the number of non-victim employees

affected and the alternatives available to them” to deter-

mine the “special blend of what is necessary, what is fair

and what is workable.” Teamsters, supra at 875 and 376,

n. 62.

All of the parties have sought to add further content to

the holdings of Franks and Teamsters; plaintiff, by con-

46a

tending that the issue is “when” and not “whether” re-

instatement will occur, and United and the union claiming

that after Teamsters victims of employment discrimina-

tion cannot be reinstated if that will cause the displace-

ment of existing employees. Neither argument is deter-

minative. Plaintiff’s suggestion that reinstatement is auto-

matic was specifically rejected in Franks. The union’s

suggestion of a “no-bumping” rule has been adopted by at

least one federal court of appeals. In Sledge v. J. P.

Stevens & Co., Inc., 585 F.2d 625 (4th Cir. 1978), cert.

denied, 440 U.S. 981 (1979), the Fourth Circuit rejected

a district court decree that modified an employer’s layoff

policy by providing that present black employees, who on

the basis of their plant seniority would otherwise be laid

off, could bump non-minority employees with greater

seniority. The Sledge court cited an earlier Fourth Cir-

cuit decision which had announced a “no-bumping” rule,

stating:

“(B]umping” is an unsettling process. Its domino

effect adversely affects employees who have done no

wrong and who, indeed, may have been victims of

discrimination.

Sledge, supra at 652, citing Patterson v. American To-

bacco Co., 535 F.2d 257, 268 (4th Cir. 1976), modified on

other grounds, 586 F.2d 300 (4th Cir. 1978). The Pat-

terson case is, in turn, premised upon a decision of the

Fifth Circuit, Local 189, United Papermakers & Paper-

workers v. United States, 416 F.2d 980 (5th Cir. 1969),

1 See also, Page v. Bolger, —— F.24 ——, 21 FEP Cases 780,

786 (4th Cir. 1979) af d. rehearing en banc, 645 F.2d 227 (4th

Cir.), cert. denied, 50 U.S.L.W. 8278 (1981); Shortt v. County of

Arlington, Va., 589 F.2d 779, 782 (4th Cir. 1978). Accord, Reed v.

Arlington Hotel Co., 476 F.2d 721, 726 (8th Cir.), cert. denied,

414 U.S. 854 (1978). In Reed, however, the Eighth Circuit merely

reversed a “super-seniority” award causing displacement of in-

cumbent workers in that instance. The Reed court did not purport

to establish an absolute “no-bumping” rule.

11 r R

47a

cert, denied, 397 U.S. 919 (1970), decided prior to Franks

and Teamsters, in which the court held:

White incumbent workers should not be bumped out

of their present positions by Negroes with greater

plant seniority; plant seniority should be used only

with respect to new job openings. This solution ac-

cords with the purpose and history of the legislation.

Papermakers, supra at 988.

The Fourth Circuit’s “no-bumping” rule has been re-

jected by other courts, see, ¢.g., Criswell v. Western Air-

lines, Inc., 514 F. Supp. 384, 394 (C.D. Cal. 1981),? and,

of course, is not controlling herein.* The application of an

2In Criswell, supra, two pilots brought claims for reinstatement

under the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 621, et seg. The district court, citing Franks v. Bowman

Transportation, granted such relief with the express recognition

that other employees would be displaced. The court stated:

[The Court has considered Western’s claim that. . reinstate-

ment will cause displacement of less senior pilots and the ulti-

mate furlough of two active pilots at the bottom of the pilot

seniority list. Although such a result is unfortunate and may

be inevitable in a shrinking economy, the Court must assume

that such a possibility was within the contemplation of Con-

gress in enacting the ADEA. Such displacement is not a suffi-

cient reason not to fully effectuate the ADEA.

Criswell, supra, at 394.

But see, Moseley v. Goodyear Tire & Rubber Co., 612 F.2d 187,

191 (5th Cir. 1980), where the Fifth Circuit appears to have

followed the Fourth in fashioning a rigid “no-bumping” rule.

5 Alternatively, plaintiff's suggestion that the Seventh Circuit's

approval of settlement decrees calling for reinstatement with

seniority in recent cases involving American Airlines and Trans

World Airlines, see Airline Stewards and Stewardesses Ass n.,

Local 550 v. American Airlines, Inc., 578 F.2d 960 (7th Cir.),

cert. denied, Ass’n. of Professional Flight Attendants v. Airline

Stewards and Stewardesses Assoc., 489 U.S. 876 (1978) (“Ameri-

can”); Airline Stewords & Stewardesses Ass’n., Local 560 v. Trans

World Airlines, Inc., 680 F.2d 1164 (7th Cir. 1980) (“TWA”),

mandates reinstatement here must be rejected. In neither American

480

absolute no-bumping“ rule is hardly consistent with the

Supreme Court’s mandate in Franks and Teamsters that

district courts are to exercise their own discretion, based

on equitable principles, in fashioning relief under Title

VII. A hallmark of equity is its flexibility—the ability

to examine the “practical realities” to determine “what

is necessary” and “what is fair.” Lemon v. Kurtzman,

supra. This court recognizes that a decree which causes

the displacement of incumbent employees impacts on in-

terests of those workers differently than an order which

merely affects certain terms and conditions of continuing

employment. That recognition, and the conclusion that

flows from it—that such decrees should be used sparingly

—is consistent with equitable principles. The existence of

a hard and fast rule precluding “bumping” in all cir-

cumstances is not, [sic] and this court declines to follow

the lead of the Fourth Circuit.

Accordingly, it is within the legal context of pre-

sumptive necessity for reinstatement with seniority ab-

sent “unusual adverse impact” that plaintiff McDonald’s

proposal for relief and the evidence presented at the

hearing have been considered.

III. PLAINTIFF’S PROPOSAL FOR

REINSTATEMENT

In light of the extraordinary circumstances of this case,

plaintiff has not proposed to the court that her class

members be reinstated immediately upon a determination

of their entitlement regardless of the availability of open-

ings at United. Instead, to cushion the potential impact

of reinstatement, McDonald’s proposal is slightly more

limited. What follows is a brief review of the specifics

of that proposal and a review of some of the over-arching

nor TWA did incumbent flight attendants face the loss of their

jobs by virtue of reinstatement with retroactive seniority. More-

over, both American and TWA were decided on principles govern-

ing the review of settlement agreements and not Title VII generally.

49a

difficulties in implementing that plan in light of the evi-

dence adduced at trial.

A. Plaintiff's Suggestions Regarding Reinstatement

Plaintiff’s basic premise is that all claimants whose em-

ployment as United flight attendants during the late

1960s terminated because of United’s ne-marriage rule are

entitled to an offer of reinstatement with restoration of

their original flight attendant and company-wide senior-

ity dates. As individual claimants are identified as vic-

tims of the rule in individual entitlement hearings (or by

a later settlement agreement), McDonald requests that

these women be offered retraining at United’s training

center. Plaintiff asks that United be compelled to operate

that training center at full capacity until all of the

“entitlees” are reintegrated into the work force.

The most significant element of the proposal is its

“openings” feature. Specifically, McDonald proposes that,

as an alternative to immediate reinstatement, reintegra-

tion of retrained class members should occur as there are

openings in United’s flight attendant work force. All of

these openings would be filled from the pool of retrained

claimants instead of by new hires. And although Me-

Donald does not expressly so state in her proposal, all

available openings would also go to the claimants before

being filled by current United flight attendants returning

from furlough status. As a condition for this “openings”

compromise, McDonald requests that, until an entitlee is

reinstated, she shall accrue “front pay” as well as other

benefits (including seniority, sick pay, pension, vacation

time, and passes), as does a flight attendant of comparable

company and flight attendant seniority.

Finally, to assure that reinstatements occur as expedi-

tiously as possible, McDonald incorporates into her plan

the requirement that United be compelled to take appro-

priate steps to encourage the creation of openings. Two

specific suggestions raised by McDonald are the “initia-

50a

tion of an early retirement program” and the “creation

of a continuing ‘shared-work’ program” akin to the

Partnership Time-Off (“PTO”) plan now in use at the

airline. Plaintiff also requests additional safeguards such

as the imposition of periodic reporting requirements on

United, access to flight attendant requirements projections

and a decree forbidding both United and AFA from dis-

criminating or retaliating in any way against a returning

class member.

B. Feasibility of the McDonald Proposal Not Considering

Any Impact on the Current Work Force

The evidentiary hearing conducted in May featured the

presentation of two distinct cases. The union and the air-

line presented their cases based on two assumptions: (1)

the immediate reinstatement of (2) approximately 1400

class members. McDonald’s case, however, rested on dif-

ferent premises: reinstatement only as openings occur in

the present work force (subject to a reasonable time

limit) and the existence of only 1069 claimants seeking

reinstatement. During trial plaintiff’s counsel charac-

terized AFA’s and United’s demonstration of the impact

of immediate reinstatement of 1400 plaintiffs as a “co-

lossal waste of time.” Tr. at 1278. This court does not

agree. Given the significant problems in implementing the

McDonald proposal as presently structured, the presenta-

tion of evidence concerning the impact of immediate re-

instatement was both helpful and necessary.

Two major difficulties with plaintiff’s proposed rein-

statement scheme exist independent of any impact it

might have on United and its current work force. The

plan’s reliance on shared work and early retirement is

misplaced. More importantly, the timetable for reinstate-

ment is unrealistic.

* The resolution of the parties’ dispute over the conflicting esti-

mates of the number of claimants who are likely to accept rein-

statement, if offered, is discussed below, infra, at n.16.

51a

1. The Reliance on Shared Work and Early Retire-

ment N

Plaintiff's suggestion of a continuing shared work pro-

gram at United is modeled on the current Partnership

Time-Off Program instituted at the airline in 1980. The

program’s origin was a union’s response to United’s Feb-

ruary 1980 notice that due to higher operating costs and

less than optimistic business projections it would be forced

to furlough approximately 200 flight attendants. Tr. 690-

692. In response to what was perceived to be a short term

furlough situation and United’s demand for a certain

dollar amount in payroll savings, AFA suggested the

initiation of the program. Tr. 691-692. According to

Susan Rohde, the Master Executive Council Chairperson

of the AFA, PTO was proposed as a “job-sharing concept

offered to flight attendants on a voluntary basis for the

sole purpose of avoiding what we thought at the time was

going to be a temporary furlough.” Tr. 6

In operation PTO is a shared-work program in which

two flight attendants, a junior and a senior, voluntarily

agree to form a pair to split the senior flight attendant’s

monthly flying schedule. As two flight attendants now

cover one line of flying, the removal of the junior flight

attendant from the bidding roster requires an additional

flight attendant to cover the second attendant’s line of

flying (assuming, of course, a constant number of lines).

In the program full seniority is accrued and full insur-

ance and pension benefits are retained by each member of

the partnership pair. Sick leave and vacation time are

divided between the attendants equally. Pay for the lines

of flying is awarded on the basis of the senior partner’s

pay rate and allocated between the partners as they agree.

The partnership pair itself is also responsible for deter-

mining which flights are flown by each partner. Me-

Donald Ex. 17.

If the PTO program is considered as a device to pre-

vent the furloughing of current flight attendants, the

52a

program must be characterized as a considerable success.

The program eliminated the need for 125 of the planned

200 furloughs in April 1980, when it was implemented.

Successive renewals of the PTO program were also help-

ful in forestalling furloughs. In August 1980, 130 posi-

tions were saved out of a planned furlough of 275 attend-

ants. In September 1980, 110 furloughs were avoided

using the PTO program, and in May 1981 the need for a

still further furlough of 200 flight attendants was totally

eliminated.“ AFA Ex. 11.

Certainly the track record of PTO lends a basis for

plaintiff’s suggestion that additional manpower demands

theoretically can be created (or additional cutbacks

avoided) by the incorporation of a like program in any

reinstatement decree. As a practical matter, however,

linking any hopes of prompt reinstatement to a shared-

work program seems unwise.

An on-going part-time or shared-work arrangement

modifies the basic contractual understanding existing be-

tween United’s flight attendants (as represented by AFA)

and the airline.“ The union correctly notes that the find-

5 Stating that PTO eliminated the need for a substantia) number

of furloughs may, in some respects, overstate the case. Lagging

consumer demand in the airline industry has caused a continuing

series of furloughs at United. In a real sense, therefore, the PTO

program has only postponed the date of furlough for some flight

attendants.

The PTO program has also been used to faciliate the early

recall of furloughed attendants from January to April 1981. Tr.

at 64.

vacations and sick leave (§§ 18-19), and most directly those terms

covering flight assignments and scheduling (§9). AFA Ex. 1.

Indeed, plaintiff's assertion that PTO does not change the agree-

ment, (Pi. Post-Trial Br. at 765 n. 84), is contrary to the under-

standing of both parties to that instrument. Tr. 63, 696.

58a

ing that United engaged in an unlawful employment pra

tice by enforeing its no-marriage rule does not endow

the court with carte blanche remedial authority to rewrite

the terms of the United-AFA collective bargaining agree-

ment or to rearrange existing terms and conditions of

employment. As the court noted in Meyers v. Gilman

Paper Corp., 544 F.2d 887, 857 (5th Cir. 1977), amended

and modified on other grounds, 556 F.2d 758 (1977):

A court in considering prospective relief is not auto-

matically empowered to make wholesale changes in

agreements negotiated by the employees’ exclusive

bargaining agents . Allowing such changes

without findings of inadequacy in the revised agree-

ments would conflict with the policies reflected in the

National Labor Relations Act, 29 U.S.C. § 151 et seq.

We are reminded that while Title VII expresses an

important national policy, it does not exist in a

vacuum. Important national policies also emanate

from the NLRA, among them the principle that terms

and conditions of employment are to be shaped by the

employer and the exclusive bargaining representative

of its employees.

Meyers, 544 F.2d at 8657.

Plaintiff has not suggested that the current terms of

the United-AFA collective bargaining agreement violate

the Civil Rights Act, or in any way wrongfully perpetu-

ate any lingering discriminatory effects of United’s no-

marriage rule. Accordingly, it is not the province of the

court to superimpose modified terms and conditions of

employment, in the form of a mandatory shared-work

program, to ameliorate the equitable dilemma posed by

reinstatement.

A continuing shared-work arrangement in any rein-

statement decree is dependent on the voluntary coopera-

54a

tion of at least the union and the incumbent employees.’

Neither’s cooperation is likely. At the hearing Chair-

person Rohde repeatedly reiterated the union’s opposition

to any long-term PTO-type program. Tr. 699, 2325. She

noted that AFA had previously been approached by United

in hopes of initiating a part-time work arrangement, and

not until it became necessary to participate in such a

program as a condition for saving the positions of in-

cumbents was AFA amenable to such a solution.

More importantly, the success of PTO, or any similar

voluntary program, is completely dependent on current

flight attendants volunteering for the program. Although

the program has achieved a good deal of success, it has

generally not been so fully subscribed as to eliminate the

need for furloughs. Flight attendants participation in

the PTO program is largely determined by the preferences

of the present work force for a part-time arrangement

along the lines of PTO. For those who can afford to

forego a full-time salary for a limited duration PTO

offers several benefits. Flight attendants in the program

may accrue full seniority and other benefits while working

part-time. The junior partners in the pairing benefit

from the ability to fly the schedule of their more senior

partner. The benefits of this program, however, diminish

when it is viewed as a long-term proposition. At least

one flight attendant testified at the hearing that while

PTO was an initially desirable option she did not con-

tinue in the program because she couldn’t afford to be

paid only partial wages. As the program increases in

duration her experience likely will become more prevalent.

7 Assuming AF A's acquiescence to a continued form of shared

work could be obtained, notwithstanding the provisions of its col-

lective bargaining agreement, compelling United's participation

might be leas troublesome in light of the fact that it is the alleged

wrongdoer in this action, and the rights of the “innocent” incum-

bent employees would not be as directly impinged.

55a

Also, while the current level of participation in the

program is attributable to the economic advantages of the

program, it does appear to the court that willingness to

join that program is influenced by a desire among the

current flight attendants to save the active positions of

their colleagues. Insofar as this motivation may have con-

tributed to the success of the program, it is likely to

diminish once the effect of shared work is to promote

openings for the claimants rather than reduce the number

of furloughees. Several witnesses at trial testified to the

resentment of the current work force toward the claim-

ants, in their efforts to secure reinstatement. At the

least, the collegiality that exists between flight attendants

does not blunt the inevitable competition between incum-

bent and claimant. The court believes that if voluntary

shared-work arrangements were to be employed as part

of a reinstatement effort for the class members, the

subscription to that program, and thus its effectiveness in

creating openings, would be diminished.

For these reasons the court has not looked to either a

voluntary or involuntary program of shared work as a

means to facilitate the implementation of reinstatement.

Involuntary shared work is beyond the power of the court

to compel. Voluntary shared work just is not a realistic

alternative in the current circumstances.

For a much simpler reason the court has not looked to

an early retirement program as a significant source of

aid in reinstating class members. Currently, the AFA-

On several occasions testimony was offered which purported to

illustrate the hostility of the incumbent work force to the class

members. Such hostility is not, of course, a cognizable ground,

either in law or equity, to bar reinstatement. Accordingly, evi-

dence of employee animus has not been considered for the purpose

of demonstrating “unusual adverse impact.” Such evidence is,

however, relevant in evaluating whether current employees would

participate in a voluntary program ostensibly established for the

benefit of the claimants.

56a

United collective bargaining agreement contains provi-

sions for early retirement at age 50. AFA Ex. 1 at 209.

Susan Rohde testified that the early retirement incentives

have, to this point, been unsuccessful in inducing senior

flight attendants to leave their positions. Tr. 801. Fur-

ther increases in the early retirement incentives are a

matter for collective bargaining, not for judicial decree.

2. Me Donald's Proposed Timetable for Reinstatement

A central condition to McDonald’s “openings” proposal

is that reinstatement of all entitlees be accomplished

within two and one-half to three years after the issuance

of a decree. Based on current projections of future

‘growth at United and current rates of attrition from

the present work force, McDonald believes that enough

openings will be created to accomplish that result. How-

ever, she notes, If, however, these projections are off . . .

plaintiff undoubtedly will petition the court to modify the

decree.” (McDonald Post-Trial Brief at 72.) Not sur-

prisingly, the union and United both claim that the pro-

jected time span is wholly unrealistic.

Plaintiff’s reliance on future growth at the airline to

supply many of the needed openings is based on the testi-

mony of Edward Beamish, senior vice-president in charge

of corporate planning at United. Beamish, who was the

only witness to testify as to long-term flight attendant

needs at United, was “cautiously optimistic” about

United’s growth prospects. Tr. 17. He saw the stabiliza-

tion of fuel costs, the country’s long-term economic pros-

pects and the effects of the airline deregulation as all

indicating a growth for United on a projected basis of 4

to 5 per cent per year in terms of available seat miles

(“ASM”). Tr. 21, 34-86. Beamish further testified that

the growth in ASMs would translate fairly well into

increases in the airline's demand for flight attendants.’

* McDonald also hinges her expectation of growth at United on

certain statements of Richard Ferris, President of UAL, Inc. in

57a

United’s next witness, Robert Wertheimer, comptroller

for in-flight services, confirmed this correlation and pro-

vided specific figures for projected flight attendant re-

quirements. Based on the 4 to 5 per cent assumption of

growth provided to him by Beamish, and an assumed

attrition rate of 1.3 per cent from the current work force,

Wertheimer estimated a need for 333 additional flight

attendants in 1982, 466 in 1988, 594 in 1984 and another

594 flight attendants in 1985. United Ex. 8.

Certainly, if Beamish’s prediction of growth and Wert-

heimer’s forecast of additional flight attendant needs

proved correct, there would exist a favorable environment

for promptly reinstating the class members within the

time frame of McDonald’s proposal. Unfortunately, cur-

rent trends at the airline and in the national economy in

general suggest that these projections are unreliable.

United’s prediction of current and continued growth has

been proven wrong by events. Instead of recalls of 102

flight attendants as planned in 1981, an additional 125

flight attendants were furloughed in July 1981, 350 in

September 1981, and another 547 in October 1981. More

flight attendants would have been laid off but for the con-

siderable success of the PTO program in reducing sur-

Friendly Times, United’s company newsletter. Those predictions of

growth, which are more in the nature of an inspirational charge

to United’s employees, have not come to pass, nor have they been

given great weight here.

% The October 1, 1981 furlough of 547 flight attendants was

caused by the strike of the professional air traffic controllers

(“PATCO”) and the commensurate reduction in the number of

United’s flights ordered by the Federal Aviation Administration

(“FAA”). Wertheimer Aff. of 9/15/81. This latest furlough has

been regarded here as a temporary phenomenon. The court can

only assume that United was flying a maximum schedule before the

strike, that the carrier would return to an approximately equiv-

alent level of flying upon elimination of the flight restrictions

resulting from the strike, and concommitantly, recall these 547

employees.

58a

pluses in the work force. The fact is that United has had

no new openings for flight attendants since October 1979,

when the last of the current workers were hired. Since

then over 1500 furloughs have occurred. For the year

1981 Beamish’s and Wertheimer’s projections of flight at-

tendant needs were off by 1124 individuals. Obviously,

given the current volatility in the air travel industry, as

well as the national economy in general, United has been

no more able to accurately predict its future manpower

needs than other concerns. While this court certainly is

no better seer of future trends than United’s forecasters,

the facts are that the airline’s business has shrunk instead

of grown and that it has much catching up to do in the

immediate future to reattain its former size before it

realizes any growth. Although plaintiff has characterized

United’s projections of growth as “conservative,” at this

point these projections have been unduly optimistic.

If, however, United has overestimated its future man-

power needs in terms of anticipated growth, it has per-

haps understated those needs in terms of projected attri-

tion from the projected work force. Much trial time was

devoted to the different projections of attrition by plain-

tiff’s expert, Dr. Carl Hoffman, and United’s expert, Dr.

George Neumann. Dr. Hoffman’s testimony was based on

information provided to him by United in the form of

the airline’s “out-of-service” listing. Using the termina-

tion rates for flight attendants in 1978 and 1979, Hoffman

predicted an attrition of between 670 to 833 flight attend-

ants by year-end 1983. Hoffman arrived at these

by computing termination rates for flight attendants,

years of seniority, from United’s experience in 1978

}

59a

predictions, based his study on flight attendant attrition

rates for the entire period between 1972 and 1980 and his

own projected rate of attrition for the period proposed in

McDonald’s timetable for reinstatement was significantly

lower than that suggested by Dr. Hoffman. Observing

that annual attrition rates had fallen dramatically over

this period, from a high of 11.40 per cent in 1972 to a

low of 1.31 per cent in 1980, Neumann then projected at-

trition rates of 1.16 per cent in 1982, 0.93 per cent in

1983, 0.75 per cent in 1984 and 0.60 per cent in 19865.

United Ex. 37. On these estimates, and the assumption of

no growth at the carrier, Neumann predicted that 367

spots would become available in the next five years. Tr.

2202. At that rate, assuming 1480 class members would

be reinstated, it would take almost 20 years to reintegrate

them into the work force under McDonald’s proposal. On

cross examination Dr. Neumann admitted that had the

termination rates for 1972 (an apparently unusually high

rate of terminations) and 1980 (an apparently unusually

low rate) been disregarded, the attrition rate at United

had remained relatively stable at approximately 4 per

cent per year, a percentage substantially similar to the

rate adopted by Dr. Hoffman. United Ex. 37. On the

other hand, Dr. Neumann also noted that his own meth-

odology had been more accurate in predicting the current

termination rate for 1981. Tr. 2204.

The court does not review this testimony as a prelude

to conclusively determining which of the competing fore-

casted attrition rates is correct. Both Dr. Hoffman’s and

Dr. Neumann’s testimony have strong appeal. Both are,

however, subject to challenge on methodological grounds,

and, most importantly, both are subject to

60a

than the conservative 3.5 per cent projection suggested by

Dr. Hoffman. The important point to be drawn from this

evidence is that the impact of reinstatement in this case

could be cushioned by plaintiff’s “openings” proposal only

in the most favorable of circumstances—both sustained

growth at United and a high attrition rate. The realiza-

tion of either is highly improbable at this point. Accord-

ingly, the impact of reinstatement must be considered

under the “best” and “worst” cases scenarios.

IV. THE IMPACT OF REINSTATEMENT

A. The Position of Flight Attendant Generally

In some respects the content of the flight attendant

position is quite familiar to the general public. Airline

passengers see a flight attendant serving an in-flight meal

or cautioning a passenger to “fasten your seatbelt and

return the seatback to the upright position.” Although

not many have viewed flight attendants fulfilling their re-

sponsibilities in emergency situations aboard aircraft, al-

most all travelers are cognizant that these individuals

have been trained extensively for these situations should

they arise. In contrast, the current hearing has focused

on those aspects of the position of a flight attendant gen-

erally unknown to the flying public, but of great im-

portance to those holding flight attendant positions.

In the context of this, an equitable hearing, it is of

more than passing interest to note that the position has

changed dramatically over the term of this lawsuit. In

this case the claimants are seeking to return to a much

improved position, very different from the one they left.

6la

change in the flight attendant scale. At United Air Lines

the pay in 1968 was 8345 a month for 70 hours of actual

flying time, Tr. 714, and actually was declining in real

terms during the latter part of the 1960s. Tr. at 1214.

While compensation levels increased only gradually dur-

ing the immediate period thereafter, they rose dramati-

cally in the mid-1970s and since then have kept ahead of

inflation. AFA Ex. 18; Tr. 715, 1214-15. The increases

in pay have taken the form not only of direct improve-

ments in the monthly pay rates, but also of indirect

compensation such as the increased availability of pre-

mium pay positions, compensation for boarding time spent

on the ground before takeoff, holiday pay and compensa-

tion for understaffed flights. Additional steps were added

to the pay scales to provide a further reward for length

of service at the airline. AFA Ex. 18.

Significant changes also have occurred in the area of

pension and retirement benefits. Prior to 1972 United

offered only a minimum retirement plan funded solely by

employee contributions, with a return on those cuntribu-

tions of only 3 per cent. AFA Ex. 19. Thereafter, United

funded the pension plan, but at very modest rates, pro-

viding relatively few benefits. A significant break-

through was made in 1976, during the negotiations be-

tween the union and United which concluded in that year’s

collective bargaining agreement. At that time United

agreed to past fund for prior years of service, AFA Ex.

19, and benefits improved almost threefold. Tr. 719. Sub-

sequent collective bargaining agreements have brought

additional improvements to the flight attendants’ retire-

ment package.

These improvements coincide with, and probably were

caused by, a significant change in the way the flight at-

12 Some other change in the jobs over the course of the 1970s

62a

tendants themselves viewed their positions. As Susan

Rohde stated, the job, which was regarded as one “that

you came and you flew for a year or two. Then you quit

and you went off and did something else,” became viewed

as a long-term career. Tr. 714.“ As the perspective of

flight attendants changed to a more career-oriented out-

look, there came greater impetus for the changes in the

terms and conditions of employment described above.

In determining the “equities” of reinstatement with full

seniority, the court has recognized that the claimants are

seeking to return to a job which is more lucrative, more

permanent and generally more desirable than the one they

were forced to leave. That the claimants might to some

extent reap a “windfall” through reinstatement is not

troubling in the abstract given the unfairness of United’s

past employment practice. But considerations of fairness

demand the court to be cognizant of the fact that this

windfall would come at the expense of the current work-

ers, particularly the more senior attendants, who played

a large role in securing these job-related improvements.

An analysis of the specific content of the position of

flight attendant must begin with a description of its sys-

in many instances, where they may live. Within the flight

63a

attendant job classification there is only one level, without

merit advancements or bonuses. The only way to “move

up” is to accrue seniority. As described by Susan Rohde,

seniority is “the entire job. The entire job is hinged on

seniority. It is the most important thing that is involved

with the work and the job. It is what the collective bar-

gaining agreement is built on.” Tr. 685.

At United, several different seniority systems exist con-

temporaneously to define the job. Certain aspects of the

flight attendant’s position are determined by “company”

seniority, that is, seniority based on all service with the

airline, and not necessarily in the capacity as a flight

attendant. Company seniority determines the number of

free flight passes a flight attendant is eligible for, as well

as the number of vacation days. AFA Ex. 3. Other con-

ditions of employment are defined by “classification” sen-

iority, i.e., the seniority credited to an employee for time

worked as a flight attendant. Classification seniority op-

erates both in an absolute and relative context. For ex-

ample, rates of pay are directly determined by absolute

classification seniority. A flight attendant receives com-

pensation increases on each seniority anniversary date up

to a current maximum seniority bracket of 14 years of

service.

Most flight attendant working conditions are deter-

mined by relative seniority, either on a system-wide basis

or within the flight attendant’s “domicile.” Relative

system-wide seniority governs two fundamental aspects of

64a

the job—furloughs (and furlough recalls) and voluntary

transfers between domiciles. When furloughs are neces-

sary, eligibility is determined by inverse seniority order,

the most junior attendants being furloughed first and

recalled last. AFA Ex. 1; 21A; Tr. 686. In addition,

after the first nine months of employment as a flight at-

tendant United permits its attendants to transfer between

domiciles on a space-available basis. These inter-domicile

transfers are determined by relative system seniority.”

The most significant day-to-day aspects of the job turn

on relative domicile seniority. Most importantly, the de-

termination of which flight attendants are “lineholders”

and which serve “reserve” is made on this basis. While

the substance and difficulties of reserve are discussed more

fully later, it suffices here to note that this distinction is

the most fundamental that can be drawn among the flight

attendant work force.

Individual schedules are similarly determined by rela-

tive domicile seniority. On a monthly basis the airline, in

conjunction with the union, determines a finite number of

lines of flying for each domicile. Those lines, which in-

cludes fixed regular schedules as well as reserve schedules,

are awarded through a bidding structure, with relative

domicile seniority the sole determining factor. Finally,

the order of “involuntary transfers,” i.e., those transfers

occasioned by a surplus of flight attendants in a domicile

in relation to the lines of flying manned by that base, are

also determined by relative seniority within the domicile,

again in inverse order with the least senior attendants

being transferred first.

65a

As the significance of seniority has been described, the

impact of reinstatement as a remedy can be appreciated.

Whether the claimants were to be reinstated immediately

or as openings are available, the impact of that remedy

on the seniority status of the current work force remains

the same. The claimant class potentially is equal in size

from 13 per cent to 20 per cent of the current work

force.“ If reinstated with their original seniority dates,

1% Considerable controversy has been generated by the parties’

attempt to predict the actual number of class members who would

actually return to the work force if offered reinstatement with

full seniority. From the outset all of the participants have realized

the necessity of adopting some figure as a “benchmark” in order

to lend content to the reinstatement hearing. All of the parties

also acknowledged that any precise prediction was impossible under

the circumstances. Accordingly, at a pretrial conference on Sep-

tember 8, 1980. AFA, United and McDonald agreed to employ

an estimate of 1400 potential returnees for purposes of trial. See

Tr. 9/8/80 PTC at 88-89. That agreement was confirmed at a sub-

sequent pretrial conference on February 18, 1981. See Tr. 2/18/81

PTC at 51. As the hearing approached, however, the consensus

seemed to dissipate and by trial all three parties had different

estimates. United presented its case assuming 1480 claimants re-

turning to the work force. The union’s case assumed both 1400

and 1700 returnees and McDonald's evidence was premised on a

figure of 1069.

Plaintiff's estimate, first raised on the eve of trial, is based

on a number of untested assumptions. McDonald started with a

class of 1700 to 1716 members. During discovery a random

sample of 150 class members was selected for more detailed sur-

66a

the median seniority of the claimants, July 1965, would

exceed that of 88 per cent of the current flight attend-

ants. More than two-thirds of the current flight attend-

ants would have less seniority than the least-senior

entitlee. Thus, taking a general view, the reinstatement

of the McDonald class will substantially alter the absolute

and relative seniority composition of United’s current

flight attendant complement. Indeed, the size and senior-

ity of the claimant group relative to the incumbent work

force is without precedent in any reported Title VII

litigation.

B. The Specific Impact of Reinstatement

All that has been stated to this point is merely a pre-

lude to the task facing this court—to identify the specific

impact of reinstatement and to determine if it is “un-

usually adverse.” The structure of the flight attendant

position and the operation of the seniority system dictate

that the impact of reinstatement takes many shapes and

forms. The potential consequences range in severity from

outright furloughs and firings to virtually de minimus

reductions in the range of scheduling preferences for the

most-senior United flight attendants. The court’s findings

and AF A's attempt to employ a potential returning estimate 1700

67a

of fact as to the specific consequences of reinstatement

are set forth below.

1. The Possibility of Furloughs and Firings

At present United Air Lines has a surplus of flight

attendants. Since 1979 it has not hired a single additional

flight attendant, but rather has been forced to furlough

1530 employees.“ If 1400 claimants are immediately

added to United’s current complement of attendants there

would not be a position for all. Additional furloughs

would be inevitable, and given the projected seniority of

the class members, 1400 current jobholders would face

layoffs. In terms of seniority, all flight attendants with

seniority dates back through March 7, 1977, would be

furloughed. AFA Ex 12-A.

If the numerical impact of immediate reinstatement is

readily apparent, the consequences in “human” terms are

no less so to the court. The immediacy of that impact was

driven home by the testimony of individual flight attend-

ants at the hearing. For instance, Barbara Vauls, a flight

attendant based at the Cleveland domicile, originally was

hired by the airline to work in its food services division at

the Cleveland airport in 1975. When the Cleveland domi-

cile was opened in 1977 she immediately transferred to a

flight attendant position on March 21 of that year. Vauls

now has accrued over four years’ seniority as a flight at-

tendant, making her the 257th most senior flight attend-

ant at the domicile. That ranking is high enough to have

the

68a

system-wide seniority, Barbara Vauls would be fur-

loughed or, as she put it, “after six years of service,

dedicated service, I go to the street.” Tr. 490.“

The consequences faced by Vauls, as well as those other

current employees subject to furlough, are not benign.

Besides the obvious loss of income occasioned by furlough,

the furloughees will be forced to search for new employ-

ment in an unpromising job market. Moreover, if and

when these flight attendants are recalled,” they will have

lost even more. Under the current collective bargaining

agreement, while the furloughees’ relative seniority re-

mains undiminished, their absolute seniority ceases to

accrue. Accordingly, upon recall, it will take these attend-

ants longer to rise in United’s compensation categories as

a result of their layoff.

McDonald has attempted to cushion the impact of re-

instatement, particularly as it results in furloughing,

through her proposal for reinstatement only as openings

arise. Of course, by its very design, the openings pro-

posal would completely short-circuit the necessity of fur-

18 Obviously, given her attributes and circumstances, the case of

Barbara Vauls is extraordinarily sympathetic, so much so that it is

almost as if she was ordered up from “central casting” for the

hearing. While the court is not unmindful of the fact that United

and AFA have, through careful selection of witnesses, placed their

best foot forward, the distinctions between Vauls and a flight

attendant of less seniority, skill or dedication, who face furlough,

are differences only in degree, not in substance.

1 In addition to the potential furloughs, certain least-senior

flight attendants face the real prospect of a total loss of their

69a

loughs were it feasible. However, as discussed above, the

chances of timely reinstating 1400 claimants through the

creation of available spaces in the work force are quite

slim. Realistically, therefore, McDonald’s proposal would

diminish the sheer number of layoffs, but not completely

eliminate them. Assuming an openings plan were adopted

by the court, the results would only be different in degree,

not in kind, from those described above.

2. The Potential for Involuntary Transfers

For many of the flight attendants not subject to fur-

lough upon the immediate reinstatement of 1400 claimants,

the potential impact of that remedy would be nearly as

drastic. Under United’s domicile system the claimants

could not simply be reintegrated into a single unit of the

work force, but instead must be reinstated into eleven

discrete systems throughout the country. Because each

domicile is of a finite size, determined on the basis of

United’s route structure and the lines of flying manned

by the base’s attendants, the return of 1400 claimants

would create surpluses of flight attendants at many of

the domiciles. These surpluses (referred to as “trapped

surpluses” at the hearing) could be alleviated by the in-

voluntary transfer of incumbent workers to “less senior”

domiciles.

As each of the domiciles vary in seniority (te., some

domiciles are composed of flight attendants with greater

average seniority than others, presumably because flight

attendants find those cities more attractive places to

reside), the extent of involuntary transfers caused by re-

70a

return to the Seattle (domestic) domicile. As that base is

manned by relatively senior flight attendants, the return

of the claimants would cause only one flight attendant to

be furloughed. However, a surplus of 147 people, or 35

per cent of the current domicile population, would result,

all of whom would be subject to transfer by United to less

senior domiciles such as Chicago or Cleveland, where

vacancies would exist due to the furloughing of the least

senior employees in the system. AFA Ex. 13-A Appendix

A. In terms of seniority, the result is even more striking:

all flight attendants with dates of hire subsequent to

September 30, 1969 would face the possibility of forced

transfer. AFA Ex. 13-A.

If the Miami domicile is used as the example in lieu of

Seattle, the results reach absurd proportions. Miami is

now a senior but relatively small domicile in the United

system. It is also, based on the results of the random

sample, the closest domicile to the residence of 143 claim-

ants. Again, given the seniority of the current Miami

complement, reinstatement would not result in any fur-

loughs but in the involuntary transfer of 143 attendants

—76 per cent of the domicile—including all those hires

after February 28, 1966. AFA Ex. 13-A. Not even some

of the claimants, who if reinstated with their original

seniority dates, would have accrued enough seniority to

avoid being transferred out of the domicile. AFA Ex.

13-A.

A flight attendant’s domicile is of vital to his

or her daily work life. The vast majority of the incum-

bents live (and in many cases with their families) in

their domiciles. Virtually all have established ties to these

communities, and some have even built second careers

there. Tr. 1106. Forced transfer would subject many

attendants to the unenviable choice of commuting from

their homes to a distant domicile™ or moving to the new

The practical consequences of commuting can be quite harsh.

Although United permits its sitendants to commute it makes no

Tla

base. For those attendants unwilling or unable because

of familial obligations to make that choice, the alternative

special allowances for those who choose to do so. Several flight

attendants testified that commuting involves a substantial sacrifice

of free time. All attendants are required to report to work as

scheduled. “No-shows” or tardiness subject all flight attendants

to discipline, and ultimately, to discharge. Ensuring that these

time commitments are met often requires commuters to arrive at

their domiciles well before their scheduled flights. Depending

upon the timing of their flights, certain attendants may be forced

to spend additional time away from home at both ends of their

trips. Those extended returns either require a second residence,

or the expense of hotel accommodations in a second city.

Terry Patrick, a Denver-based flight attendant who formerly

commuted from his home in Colorado to the Chicago domicile, re-

called at trial:

I usually went in the night before I was to fly out, whether

it would be a reserve month or a line month. I had to stay in

a hotel sometimes. Sometimes I stayed in the “stew” lounge.

I would get into Chicago at 1 o’clock in the morning, I believe,

and I would have trips leaving at 5 o’clock .. . that same

morning. So I would just stay there for four hours. . . I would

sometimes not get back into Chicago in time to take a flight

back to Denver. So I would have to stay an extra night in

Chicago. . I would sometimes spend five days to fill [a]

three-day trip.

Tr. 1118-19. Also Tr. 706.

Travel between cities also may involve considerable expense. If

available, flight attendants may use “jumpseats” on United aircraft

at no cost to the attendant. These spots, however, are limited and

72a

is to quit and find another job. Tr. 436, 705, 1079-80.

Again, were Me Donald's “openings” proposal a realistic

alternative to immediate reinstatement, the impact of re-

instatement in terms of involuntary transfers would be

vitiated. But the doubts about the feasibility of promptly

reinstating the claimants as openings occur are heightened

rather than reduced when the consequences of transfers

are considered. To the extent that attrition rates vary

with length of service, attrition being greater among the

less senior workers, some class members desiring to re-

enter the more senior domiciles may face inordinately

long waits to have this preference fulfilled. Of course,

there exists the possibility of reinstating the claimants in

those domiciles where vacancies exist only due to fur-

loughing. That alternative, however, merely shifts the

“Hobson’s choice” of relocating or refusing to accept re-

instatement to the claimants. The court doubts whether

the class members would even accept reinstatement on

reserved in advance and are awarded on a space-available basis.

penses incurred) each time an attendant is scheduled for duty.

u For some flight attendants resignation is a very real possibility.

For example, Julie Kaseguma, a Seattle-based attendant hired in

January 1972 would be forced to transfer to another less senior

domicile. Ms. Kaseguma transferred to Seattle in 1975 because

her husband, an attorney, practiced law in that city. Ms. Kaseguma

indicated that she could neither move to another city, nor could

substantial hardships. Lucille Solana, a Miami flight attend-

734

those terms, and McDonald has not expressed a willing-

ness to adopt this alternative.

Rather, plaintiff’s position seems to be that transfers

are a fact of life at United, a prospect not beyond the

expectations of the current work force. That claim, how-

ever, simply is contrary to the facts. In the entire time

since the claimants were forced to leave the airline,

United never has involuntarily transferred its flight at-

tendants on more than a short-term basis until this sum-

mer when United was forced to transfer 25 flight at-

tendants involuntarily from the Miami domicile to Chi-

cago, due to a reduction in flights to and from that city.

Tr. 705, 718.

8. “Demotions” to Reserves

The possibilities of large scale furloughs and involun-

tary transfers are the most far-reaching consequences of

reinstatement with seniority. Were the court convinced

that these outcomes could be avoided by the adoption of

planned reinstatements as available spaces occur, deter-

mining that the impact of that remedy would be “un-

usually adverse” would be somewhat more difficult. The

other effects of reinstatement concern changes in the con-

tent of the current flight attendants’ jobs less extreme

i

senior flight attendants now serving as lineholders

be forced to return to reserve status.

The distinction between lineholders and reserve is

damental. Whereas the former fly predetermined

monthly schedules, the latter can only bid f

On those days which they work, their lines

determined by the airline, at its option and

its needs. The practical effect of the system, in

scheduling, is that a reserve flight attendant

know ahead of time there she will be on

is scheduled for duty, or whether she

1115

25

i

41

Fes

„

74a

evening.“ Moreover, those on ready reserve must be

available for immediate call-ups to flights on their days

off. Much of the individual’s time is spent simply waiting

for United to telephone them with their assignment.

There are important economic distinctions between

lineholders and reserves. A lineholder can earn a rela-

tively consistent income. More importantly, by bidding

certain fixed schedules a lineholder can maximize her

earnings by bidding schedules where she earns premium

pay for extra flight hours or by holding a “first position”

on board an aircraft. Still further, lineholders have in-

creased opportunities to increase their income by picking

up trips during their days off. The ability to bid and

hold premium line positions might enable an individual

to increase her income by as much as $2,500 per year.

Tr. 713-717.

22 Almost every flight attendant who testified at the hearing re-

marked on the difficulty and undesirability of serving reserve.

Illustrative of this testimony is the colloquy between Martha Petrie,

a class member who again is working as a United flight attendant,

and plaintiff's counsel.

Q [Plaintiff's counsel] I take it that you are content to

remain on reserve?

A IMS. Petrie] Am I content?

If you were a flight attendant, you would know.

Well, I am not a flight attendant, so why don't you ex-

plain [it] to me.

A Well, on reserve I have no choice of my trips or my

hours or days. I may have a check-in at 4 o'clock in the morn-

ing; get in at 8 o’clock in the morning. I do know my days off.

I have no control or I can’t pick up trips if I want to make

extra money. I can’t bid a trip, because meal

expense. I can’t do that. I can’t predict my life as such. I

can’t really make plans.

Tr. 1741-18.

Orororo

*

5

75a

Given the undesirability of reserve duty, it is not sur-

prising that flight attendants seldom opt for this status,”

and concommitantly have as their goal the ability to get

off reserve. According to the union the main demand of

junior flight attendants over the years has been to be

relieved of this condition. Tr. 752. And, although efforts

have been made to improve their lot, more than one flight

attendant witness likened reserved duty to “serving

time.” Tr. 1109.

Reinstatement of 1400 flight attendants with full se-

niority will occasion a wholesale displacement of thou-

sands of current lineholders to reserve status. United’s

current reserve systems provides for “straight” reserves,

who serve reserve every month, and “rotating” reserves,

who serve alternating months. All flight attendants hired

after October 1, 1977 must remain on straight reserve

status until they have enough relative seniority in their

domicile to become a lineholder. The most senior 25 per

cent of each domicile are exempt from reserve duty. As-

suming immediate reinstatement, since the impact of that

remedy would cause the furlough of the post-1977 hires,

for every junior flight attendant serving on reserve who

is laid off, two more senior attendants would move to

reserve, albeit on a rotating basis. According to the

union’s calculations, a total of 2802 flight attendants—

or 32 per cent of the current work force—who are not

now serving reserve would be called on to so serve on a

relatively constant basis. AFA Ex. 15-B. (Appendix B).

As with transfers, the specific extent of any demotion

to reserve status will vary according to domicile. Obvi-

ously, the more senior the domicile the longer a flight

attendant must wait to get off reserve. Thus, in Seattle

(domestic) the most senior flight attendant now subject

% A witness, Rachel Woodings, a very senior flight attendant

based in Washington, D.C. testified that the most senior third

flight attendants never bid reserve, and the mid-senior third do so

only infrequently, primarily to extend their vacation periods.

76a

to reserve has a date of hire of February 17, 1970. In

Chicago, a relatively junior domicile, reserve duty ex-

tends to those incumbents hired after February 20, 1978.“

With the introduction of 1400 claimants into the system,

according to their present closest domiciles, reserve duty

at Seattle would include 134 additional flight attendants,

or all those hired subsequent to November 1, 1967. At

Chicago an additional 934 flight attendants with seniority

as great as May 22, 1978 would be forced to fly reserve.

AFA Ex. 15-A (Appendix C).

The adoption of McDonald’s timetable for reinstate-

ment cushions the impact in terms of reserve slightly,

but does not come close to eliminating it. To the extent

spaces are created by attrition of lineholders, reinstate-

ment would not create a demand for additional reserves.

More likely, that attrition will come from the current re-

serves.

McDonald’s response to all this is twofold. First, she

argues, citing the frequent transfers of flight attendants

from junior to senior domiciles and thus, for example,

from lineholder in Cleveland to reserve in San Francisco,

that reserve duty is not so undesirable. However, the con-

clusion to be drawn from the transfer activity is more

limited. Flight attendants regard the choice of domicile

as more important than the distinction between lineholder

and reserve. That evidence does not diminish the unde-

sirability of the position.“

* Chicago is so “junior” a domicile in the United system that

even those junior flight attendants who would be forced to fly

77a

Plaintiff's second point is somewhat more convineing.

She argues that the current work force has a continued

expectation of reserve well into their careers.“ McDonald

Ex. 20. In addition, McDonald points out that the in-

cumbents have no vested interest in getting off reserve

since they now can be “bumped” back into reserve duty

by a transfer into a domicile of a more senior flight at-

tendant currently with the airline. McDonald thus con-

cludes that the displacement created by reinstatement is

no different from the current experiences of the incum-

bent work force.

At most, however, McDonald has succeeded in demon-

strating that the consequences of extended reserve duty

caused by reinstatement differ only in degree from the

current experience. But even that is a substantial

change. That from time to time relatively senior flight

attendants may be reduced to reserve is not nearly the

same as the reduction created by the addition of 1400

hires either at once or over time, all in the top one-third

of the seniority list. While current flight attendants must

expect to fly reserve well into their careers in some in-

stances, their experience has been that if they stay on

long enough they will continue to move up in seniority

and move off reserve. Reinstatement would not only re-

verse that trend, it would do so to an unprecedented ex-

tent.

This is but one result of the stagnation of the seniority

list, but it is a significant result. Whether the claimants

are reinstated at once or over time they will slot into an

The fact that many flight attendants in certain senior domiciles

78a

existing seniority list. All of those below them, a great

majority of the work force, must anticipate a decreased

relative seniority extending over a significant period of

their working lives. That is the antithesis of the seniority

premise basic to the collective agreement, a premise that

increased service will progressively result in inereased

benefits and increased rights. The diminution of expec-

tations occasioned by seniority stagnation cannot be dis-

missed nor should it be underestimated.

Defendants have sought to make much of the impact of

reinstatement on the attitude of the incumbent work

force and on subsequent collective bargaining relation-

ships. This court does not consider those matters ger-

mane to the issue before the court. Were it otherwise,

any prejudices of those presently employed would be

relevant to the remedy to be accorded to the victims of

discrimination, and that obviously is not so. The intensity

of feeling respecting long continued reserve status is ger-

mane, however, as it is some indication of the adverse

impact of a stagnant seniority list. Clearly, junior flight

attendants regard the prospect of long continued reserve

status as a sentence to peonage massively affecting their

lives and careers.

4. The Impact on Lineholder Schedules

The gravest consequences of reinstatement would be

experienced by those flight attendants subject to 22

lough, transfer or reserve. Even among those most seni

flight attendants, however, some impact will be —

enced, primarily in terms of the diminished attractive-

ness of their schedules. Much of the hearing was devoted

to the presentation of competing analyses of the impact

of reinstatement on flight attendant scheduling. The most

drawn from that analysis, however, ee ee

by the AFA.

79a

Hoffman initially divided each of the domiciles in

thirds, based on seniority (i.e., most senior, mid-senior

and least senior). On the basis of his analysis of the

first bids submitted by the attendants in four domiciles

(on the assumption that this was their top preference)

and on the basis of a study of the bids actually awarded,

Dr. Hoffman discovered a considerable heterogeneity

among flight attendant preferences.” Tr. 1494. His anal-

ysis drew a distinction among the types of “trips” or

sub-markets available to the flight attendants. Hoffman

divided the range of options into “bulk lines,” * one-day

trips or “turnarounds,” * three-day trips, two two-day

trips and one one-day and one two-day trips. His anal-

ysis of the bids uncovered what he described as a “stack-

ing” effect—the most senior and mid-senior attendants

apportioned their bids among the different sub-markets.

On the basis of the actual bid awards Dr. Hoffman deter-

mined that a substantial percentage of both the mid-

senior and most senior groups were awarded a line within

their desired sub-market. In short, his conclusion was

that, by and large, the sub-markets are large enough, or

have a sufficient “cushion,” so that a flight attendant who

bids a market has a substantial chance of obtaining a

27 Dr. Hoffman's finding of heterogeneity in line awards and

bidding casts considerable doubt on United’s analysis of the effect

of reinstatement on line awards. United, in its presentation,

attempted to “rebid” its Seattle domicile assuming reinstatement.

United Ex. 20. The premise of that analysis was that bidding is

a “lock-step” or “domino” process, in which if someone is added,

she will take the bid of the person immediately below. However,

if United’s lock-step assumption were correct, one would expect a

homogeneity of crew compositions. This was not the case. See e. g.,

McDonald Ex. 33, Tbl. 21A-29A, 22B-29B.

28 A “bulk line” is a favorable schedule in which a flight attend-

ant does all her flying in two weeks (two three-day trips each week)

and is off for the remaining 16-17 days in that month. Tr. 898-94.

A “turnaround” is a one-day round trip ranging from five to

eight hours. “High-time” turnarounds (i.e., 8 hours) are regarded

generally as very desirable trips. Tr. 894.

80a

line in that market. Hoffman estimated that this cushion

was large enough (50 per cent, Tr. 1533) so that upon

reinstatement only a few flight attendants at the margin

would be displaced from their preferred sub-market. The

rest could still hold an acceptable bid through considera-

ble diminution in seniority. (McDonald Ex. 33, Tables

21-46).

Dr. Hoffman’s analysis is compelling until it is consid-

ered that there also is considerable heterogeneity among

- the trips in each sub-market. Quite simply, there are

“good” three-day trips and “bad” three-day trips, and

the same holds for each sub-market. Further analysis of

bid awards reveals that virtually all of the preferable

trips in any sub-market are dominated by the most senior

flight attendants. For example, an analysis of line

awards in among the most senior and mid-senior groups

in Chicago reveals that 100 per cent of three-day trips,

with weekends off, were flown by the most senior group.

That group also flew 96 per cent of the most desirable

(i. e., “high time”) turnaround trips, 100 per cent of the

bulk lines, 95 per cent of the two two-day trips with non-

stop flights, and 71 per cent of the two two-day trips

other than non-stops, but with weekends off. In short, the

evidence showed that the mid-senior group dominated

only those sub-markets that the most senior groups did

not want to fly. The least-senior group was awarded

those lines left after the others expressed their prefer-

ences. AFA Ex. 29-34.

The impact of reinstatement on scheduling becomes ap-

parent when it is considered that upon the return of 1400

claimants, 44 per cent of those attendants now in the

“most senior” classification would drop to “mid-senior” ;

thirty-three per cent of those now in the “mid-senior”

group would become among those “least senior” and sub-

ject to those lines rejected not only by the top third but

by the mid-senior bidders as well. Accordingly, this court

finds that the present schedules of the flight attendants,

81a

although not subject to the “domino” effect suggested by

United, would still be adversely affected. The insertion

of 1400 class members at the top of the list would force

many, if not all, lineholders below them in seniority to

fly lines of diminished desirability.

In contrast, however, to the consequences of furlough,

transfer and reserve, displacement in schedules is not the

type of impact that can be considered “unusually ad-

verse.” Were this the only impact of reinstatement, that

remedy could not be equitably denied. The diminished

desirability of lines of flying appears to be the type of

sharing of the remedial burden in Title VII cases that

was demanded by the Supreme Court in Franks.

5. The Economic Impact of Reinstatement on United

Like any other employer who has engaged in unlawful

employment discrimination, United may expect to suffer

certain economic consequences, In the usual Title VII ac-

tion those consequences only derivatively affect the em-

ployer’s work force, and as such these economic conse-

quences are not normally a matter of deep concern to the

incumbents. There comes a point, however, where the

economic impact is so vast that as a matter of business

realities the economic burden placed on the employer does

immediately impact on its employees as well. Such is the

case here. Although the court might otherwise be more

sanguine about this prospect were the consequences suf-

fered only by the adjudicated wrongdoer, the impact in

terms of dollars and cents is of such great magnitude in

this instance that it must also figure into a finding of

unusual adverse impact.

Assuming the reinstatement of 1480 claimants, the

costs to United run into the millions of dollars. Susan

0 Because the only witnesses testifying to the economic impact

on United were the airline’s own employees, and because United

used 1480 instead of 1400 returnees as its estimate, that number

is, of necessity, employed here.

82a

Schaffer, Vice-President of In-flight Services at United,

testified that the immediate, non-recurring cost to United

would exceed $10,000,000. The non-recurring costs in-

clude furlough pay for the 1480 who would be furloughed,

Tr. 516-17, transfer costs associated with those flight at-

tendants forced to transfer involuntarily, Tr. 517-19, and

uniform costs for outfitting the returning claimants. Tr.

517. The dollar amounts for these costs, which are re-

quired to be borne by United under the current collective

bargaining agreement, are $1,942,382, $4,960,000 and

$1,092,595, respectively. United Ex. 21. In addition, pur-

suant to FAA regulations all incoming claimants would

necessarily need to be retrained. That one-time cost

would exceed $2,500,000. United Ex. 21.

The annual recurring costs of reinstatement to United

are primarily those associated with the salaries of the

returning class members. Assuming immediate rein-

statement, the difference between the salaries of the 1480

claimants to be returned to the work force and those 1480

flight attendants who would be furloughed, is $11,402,388.

While this cost differential would decrease over time as

more junior attendants move up in compensation levels,

the differential is based on the current union contract

and does not consider what might be predictable salary

increases in the wage ceilings which now exists at the

airline. Tr. 523, 551. Other recurring costs associated

with compensation include those for vacation pay in the

amount of $4,735,248, pension costs of $4,102,900, and

Social Security payments of $758,259. The total annual

recurring cost to the airline would therefore be approxi-

mately $21,000,000. United Ex. 22.

The potential increase in United’s costs, however, must

be viewed in perspective. Many of the immediate non-

recurring costs estimated by United can be wholly elimi-

nated or substantially reduced if McDonald’s timetable

for reinstatement is adopted. To the extent that fur-

loughs and involuntary transfers are avoided by timing

83a

reinstatements as openings occur, the need for furlough

pay and transfer compensation obviously is avoided. Also,

United’s costs of retraining and uniforms, while sub-

stantial in the first year, may ultimately be saved since

the airline would no longer need to outfit and train 1400

other new hires sometime in the future.

On cross examination Ms. Schaffer acknowledged that

the current budget of In-flight Services is approximately

$300,000,000 annually, of which 90 per cent or $270,000,000

is for flight attendant wages. Tr. 605. Thus accepting

United’s estimate of 1480 returnees, the increased costs

associated with reinstutement means less than a 10 per

cent rise in gross flight attendant compensation. This

must be contrasted with increases United voluntarily as-

sumed in its two most recent round of contract negotia-

tions. In April 1980 United agreed to a compensation

increase of 23 per cent, with another 10 per cent increase

in March 1981. AFA Ex. 18. The airline proposes to in-

crease wages by another 10 per cent in 1982. Wertheimer

Aff. of 10/1/81 at 7. Moreover, United agreed to these

salary increases when it acknowledgingly faced the pros-

pect of large scale reinstatements.

In review, the potential economic impact of reinstate-

ment on United is of such magnitude so as to give cause

for some concern both on the employer’s and employees’

behalf. In an increasingly competitive deregulated indus-

try, there exists a real possibility that some fallout from

the increased economic pressures may be felt by the in-

cumbent employees. But, while the economic impact is

large it is not unprecedented in the experience of the

airline. As such, the increased costs associated with rein-

statement do not constitute “unusual adverse impact.”

6. The Impact on Minority Hiring

Canvassed above are those ares where reinstatement

with seniority would have its primary impact. But it is

not a definitive catalog of all those consequences, One of

.

x 4 -

D w

84a

the unfortunate ironies of this lawsuit is that those who

might potentially suffer from any remedy awarded to the

claimants are among the same classes toward which Title

VII’s remedial goals are targeted. Pursuant to a consent

decree entered into by United in the case of EEOC v.

United Air Lines, Inc., No. 73 C 973 (N.D. III. 1976),

affd. 560 F.2d 224 (7th Cir. 1977), cert. denied, 434

U.S. 1063 (1978), the airline has increased its hiring of

minority flight attendants over the past five years. Since

these hires have little seniority, the reinstatement con-

templated here would have a disproportionate impact on

that group. Specifically, if 1400 claimants were returned,

the percentage of minorities among the current work

force would drop from approximately 15 per cent to 10

per cent. United Ex. 25; Tr. 612-13. In addition, rein-

statement would decrease United’s ability to meet its fu-

ture minority hiring goals as the need to hire new flight

attendants would be substantially diminished.

V. THE APPROPRIATE REMEDY

This is a case which has been overtaken by events.

Plaintiff, with some justification, objected to defendant’s

evidence of change in the employment patterns and ex-

pectations of women over thé past fifteen years. Even

without that evidence, however, the historical setting of

this lawsuit cannot be ignored.

This case is, in a real sense, a reflection of massive

social changes in the 1960s, and the difficulties in fashion-

ing a remedy arise in large part from the subsequent

impact of those changes. Title VII is both a result of and

a contributor to those changes, much as the “no-marriage”

rule flowed from pre-existing socie

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