# Petition for Writ of Certiorari — United Airlines, Inc. v. Hart > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0873%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 831 ## Text 4 ~ FILED 1-2069 Now 92- JUN 25 1992 CLERK IN THE Siugrenw Cut of thy Wuited States OCTOBER TERM, 1991 UNITED AIRLINES, INC., Petitioner, V. PAUL HART, DANE VANNICE, and MILTON HOWARD, Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit PETITION FOR A WRIT OF CERTIORARI ROBERT A. SIEGEL (Counsel of Record) O’MELVENY & MYERS 400 South Hope Street Los Angeles, CA 90071 (213) 669-6000 JEFFREY |. KOHN O’MELVENY & MYERS 153 East 53rd Street New York, N.Y. 10022 (212) 326-2000 KRIS J. KOSTOLANSKY ROTHGERBER, APPEL, POWERS & JOHNSON Suite 3000 One Tabor Center 1200 Seventeenth Street Denver, CO 80202 (303) 623-9000 Attorneys for Petitioner WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 QUESTIONS PRESENTED The United States Court of Appeals for the Tenth Cir- cuit has misapplied the standards of this Court for de- termining the most appropriate statute of limitations for a claim under Section 43 of the Airline Deregulation Act, 49 U.S.C. app. § 1552 (1988), thereby causing con- fusion in the circuits not only over the most appropriate statute of limitations for Section 43 claims but also over this Court’s state-law and federal-law borrowing prin- ciples generally. The questions thus presented are: 1. Whether under this Court’s borrowing standards fed- eral courts should borrow a statute of limitations else- where in the federal law for claims under Section 43 of the Airline Deregulation Act—a unique federal statute with no precise complement in state law? 2. If state law is the borrowing source, whether under propriate to borrow a state residual statute of limi- tations for “all actions upon liability created by a federal statute” for Section 43 claims, when such a limitations rule is available in only four states, and its application would significantly interfere with the fed- eral policies at stake in Section 43? (i) ii PARTIES TO THE PROCEEDINGS Petitioner is United Airlines, Inc. Respondents are Paul Hart, Dane Vannice, and Milton Howard.“ * As required by Rule 29.1 of this Court, petitioner states that its parent companies, subsidiaries (except wholi, owned subsidi- aries) and affiliates consist of UAL Corporation, Mileage Plus, Inc., U-C Corp., Air Wis Services, Inc., Covia Corporation, Cypher Cor- poration, E & T Trading Corporation, United Airlimes Credit Cor- poration, United Airlines Galileo Holding Company, United Aviation Fuels Corporation, United Cogen, Inc., United Worldwide Corpora- tion, and United Vacations, Inc. Covia Corporation owns 50% equity interest in Covia Partnership, a Delaware general partner- ship. Covia Corporation also owns 25.6% interest in The Galileo Company Limited, a United Kingdom company. QUESTIONS PRESENTED PARTIES TO THE PROCEEDINGS TABLE OF AUTHORITIES OPINIONS BELOW JURISDICTION STATUTES AND REGULATIONS INVOLVED STATEMENT OF THE CASE A. Factual Background B. Statutory Background C. Proceedings Below REASONS FOR GRANTING THE WRIT I. II. CONCLUSION ............. Aten aaah aienaicetuthasniiss TABLE OF CONTENTS THIS COURT’S INTERVENTION IS NEC- ESSARY TO RESOLVE A SPLIT IN THE CIRCUITS CONCERNING AN ISSUE WHICH HAS A SIGNIFICANT IMPACT ON THE FED- ERAL POLICIES EMBODIED IN SECTION 43 OF THE DEREGULATION ACT AND HAS EXEN THE SUBJECT OF MUCH RECENT ede ah aa hash Sen ostitanpahcbsasncwnsiecs A. The Decision Below Conflicts With Decisions Of Other Circuit Courts of Appeals ............. B. The Decision Below Conflicts With Decisions Of This Court And Presents Important Issues Of Federal Law .........................0.......... THE TEST FOR BORROWING A STATE LIMITATIONS RULE ADOPTED BY THE COURT OF APPEALS IS CONTRARY TO SUPREME COURT PRECEDENT (iil) 11 11] 15 iv TABLE OF CONTENTS—Continued APPENDIX Opinion of the United States Court of Appeals for the Tenth Circuit in Charles Bowdry et al. v. United Airlines, Inc. 956 F.2d 999 (10th Cir. INT Ssh Sen pe, he sn ok a aoe edad Memorandum Opinion and Order of the United States District Court For the District of Colorado in Charles Bowdry, et al., v. United Airlines, Inc., No. 88-S-1997 (D. Colo. 1991) ..............------------------ Statutes, Regulations, and Legislative Material__ Page 17 30 ee ¥ TABLE OF AUTHORITIES Cases Page Air Line Pilot Assoc., Int'l v. Department of Transp., 791 F.2d 172 (D.C. Cir. 1986)... 25 Agency Holding Corp. v. Malley-Duff Assoc., Inc., 483 U.S. 143 (1987) .|......00000000o... 13, 16, 17, 18, 20, 24 Alaska Airlines, Inc. v. Brock, 480 U.S. 678 Recension scadeanecnacacmanmeerinters: aeteee coma _.8, 9, 25 Bigelow v. Hawaiian Airlines, Inc., 696 F. Supp. jane (oh ewes ieee... 11 Bowdry v. United Airlines, Inc., 956 F.2d 999 fo Gh ee OR ema MEN 6 ST 3, 21 Bowdry v. United Airlines, Inc., Case No. 88-5- 1977 (D. Colo. 1991), rev’d, 956 F.2d 999 (10th GIN ED Scere ale ce ee ee ee me Campbell v. Haverhill, 155 U.S. 610 (1895) ............. 15, 26 Crocker v. Piedmont Aviation, Inc., 696 F. Supp. 685 (D.D.C. 1988), rev’d on other séunid: 933 Pan neme Sa, Ca Bees... ee 12 DelCostello v. International Bhd. of Teamsters, 462 U.S. 151 (1983) _... ealtebeie nae _...15, 16, 17, 18, 20 Gonzalez v. Aloha Airlines, Inc., 669 F. Supp. 1023 (D. Hawaii 1987), rev’d, 940 F.2d 1312 (9th Cir. 1991) ...... ee EME Prk Cee at Mts ES ee 3, 12, 14, 23, 25, 27 Goodman v. Lukens ‘Steel Co., 482 U.S. 656 ff SERNAME Meredtce ne Ny sun ed Ml he Bal mao 27 Haggerty v. USAIR, Inc., 952 F.2d 781 (3d Cir. ER We Mowe 3, 12, 18, 14, 19, 24, 25 Haggerty v. USAIR, Inc., No. 90-474 (W.D. Pa. 1991), aff'd, 952 F.2d 781 (3d Cir. 1992) .._.. 11,12 In re Data Access Sys. Sec. Litig., 843 F.2d 1537 (3d Cir.) (en banc), cert. denied, 488 U.S. 849 G RUUD povseienissnsaacdncsceszlabannsassoonemen tae 13 Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 111 S. Ct. 2773 (1991) passim Long v. Trans World Airlines, Inc., 913 F.2d 1262 hi Be Se | baal n R E 3 McDonald v. Piedmont Aviation, Inc., 695 F. Supp. 133 (S.D.N.Y. 1988), aff’d, 930 F.2d 220 (2d Cir.), cert. denied, 112 S. Ct. 441 (1991) __ 3, 12, 14, 23 vi TABLE OF AUTHORITIES—Continued Page Savoy Faucet Co., 241 NLRB 51 (1979), enforced without op., NLRB v. Savoy Faucet Co., 628 F.2d 1345 (2d Cir.), cert. denied, 449 U.S. 872 CRI cas ivernncensancstsarsncccerccinen ae eneteeneeanees 24 Occidental Life Ins. Co. v. EEOC, 432 US. 355 CEG saccosicscsvcnsexcoevkestnnsnsbonncuncacenesnnesseenenieeeieenaneeee 16 Punahele v. United Air Lines, Inc., 743 F. Supp. PER CB. Cate. BORG D asciecicccses ccm 12, 20, 29 Reed v. United Transp. Union, 488 U.S. 319 II oaicccca so ackisreneica cas rcnceinerensies ene aaa 17, 18, 27 Robinson v. American Airlines, Inc., 908 F.2d. 1020 CUE. Chie. HD: nck sncn cai crcccciheesceepeetoeenccnecctannrants 3 Robinson v. Pan American World Airways, T77 F.2d 84 (2d Cir. 1985) -_........ BERN Nine. e's ecaateel 21 Wilson v. Garcia, 471 U.S. 261 (1987) pe he phn Sits passim Statutes Federal Airline Deregulation Act of 1978, Pub. L. No. 95- bs: OR MK: Fe ei eke eee 2 Judicial Improvements Act of 1990, Pub. L. No. 101-650, § 318(2), 104 Stat. 6114 ........................ 11 28 U.S.C. § 1254(1) ...... Bekele PRES tat AltA 2 SO ULB A... © Eo wicks nisitvicmconcnnnnnuneas 2, 24, 29 Be ID cesicaxnadscnecussecreaves oie ....2, 9, 9, 18, 24 Oe OOO i iciescasienntinaetn ees 26 I P osscaseccastisnipchenaeeteetarereee 26 BD TF Ae. 0 IR sivsinssexastksnckavsercrssansipnccasexemmoanienen 19 49 U.S.C. App. I ic icesiascacatdconcsnanedassswbnideasiatadieatieaae 3 § 1552(a) ....... dssaripellac chic dues eka eevee eee 8 BD II TED cvssiccstaninnnnsanstintéccigsniiacacictaubeanepeaetan 3,8 2) lt eee shh ale eae ana er fi | neers A 5 8 1562 (e) ................... vesinsea eepoamasaanneiane 3 § 1552 (h) (1) ............... ocRLCy aude apueateee ae 6 § 1552 (j) -........ ss chichipeinn bane cpabeneunbenneoe eames 3 vii TABLE OF AUTHORITIES—Continued State Page Aris. Rev. Stat. Amm. & 1E-GEl ... ....00.. sce scccc cc ecccac. ee 21 Colo, Rev. Stat. § 13-80-102 (1) (g) aceceseseennescfBOtn § 24-34-402 (1) (a) . oo Oi, Seer 2, 29 NII os ttc os 220.27 Notice of rights. . 220.28 Air Carrier actions to be reported to the Secre- tary. 220.29 Equal employment opportunity. i 42a Subpart D—Designated Employees’ Responsibilities 220.30 Designated employees’ responsibilities. Subpart E—Department of Labor’s Responsibilities 220.40 Comprehensive job list. 220.41 List of protected employees. Subpart F—Administration 220.50 Effective period of the program. 220.51 Disclosure of information. Appendix I—-U.S. Carriers certificated as of October 23, 1978 under Section 401 of the Federal Aviation Act of 1958, as amended. _Authority: Section 43(f) of the Airline Deregulation Act of 1978, Pub. L. No. 95-504, 92 Stat. 1750-1753 (49 U.S.C. 1552). (Seeretary’s Order No. 1-79, 44 FR 13093) Subpart A—Purpose and Scope of the Airline Employee Protection Program § 220.01 Definitions. As used in this Part, unless the content otherwise indi- cates: (a) “Act” means the Airline Deregulation Act of 1978, Public Law 95-594, 92 Stat. 1705. (b) “Air Carrier’ means an air carrier certificated under Section 401 of the Federal Aviation Act of 1958 (49 U.S.C. 1371). (c) “Center” means the entity or location which from time to time may be designated by the Secretary to re- ceive, maintain and distribute the job listing information required by this Part. " J 43a (d) “Corporate officer” means an individual who holds any officer’s position established pursuant to the Articles of Incorporation or bylaws of any air carrier, or who is otherwise identified as an officer by any air carrier, in filings with the Federal Aviation Administration, Civil Aeronautics Board or Securities and Exchange Commis- sion or in any reports to stockholders or any pubic com- munications of an air carrier. (e) “Covered air carrier” means an air carrier which was certificated prior to October 24, 1978 (A listing of such carriers appears as an-appendix to these regula- tions). (f) “Designated employee” means a protected em- ployee who meets the eligibility requirements set forth in Section 220.10. (g) “Effective period” means the period commencing on the effective date of these regulations and ending on the later of: (1) October 28, 1988, or (2) the last day of the final month in which the Secretary is required to make a payment under Section 48 of the Act; except that nothing in these regulations shall preclude the exer- cise of statutory rights and duties between October 24, 1978, and the effective date of these regulations. (h) “Eligibility period” means the ten-year period be- ginning on October 24, 1978. (i) “Employment relationship” means an attachment to a covered air carrier which irludes, brit is not limited to, compensated service, furlough, leave, or strike. - (j) “Equal employment opportunity requirement” means a specific equal employment requirement, pursu- ant to a federal court or administrative order, consent decree, or conciliation agreement, requiring that named individuals or specific members of a class are entitled to relief by virtue of the carrier’s unlawful employment discrimination. 44a (k) “Occupational specialty” means the class, craft, or field of endeavor in which an individual was em- ployed at the time of separation from a covered air car- rier or in which the employee was employed during the 12 months immediately preceding the date of separation. (i) “Protected employee” means a person other than a member of the Board of Directors or corporate officer of a covered air carrier: (1) Who had an employment relationship with a cov- ered air carrier on October 24, i978, and (2) Who on October 24, 1978, had four years of em- ployment or four years accrued seniority with a single covered air carrier. The term employee shall include any full or part-time employee other than an employee in sea- sonal or temporary employment as defined herein. As used herein four years of employment shall mean not less than 48 months (whether or not consecutive) in which the employee actually completed the minimum number of hours of regular employment required for such employee’s craft, class or position under the then applicable requirements of the employing carrier. (m) “Seasonal employment” means employment dur- ing limited periods of the year due to peak market con- ditions or Other factors which are periodic in nature, and in positions which do not confer seniority or recall rights. (n) “Secretary” means the Seeretary of Labor of the United States, (o) “Temporary employment” means employment of limited duration which does not confer seniority or re- call rights. (p) “Terminated,” means, unless expressly provided to the contrary, termination of employment, other than for cause. (q) “Terminated for cause” means the separation of an individual from employment initiated by an air car- 45a rier for violation of such carrier’s rules, policies, proce- dures, or practices pertaining to employee standards of conduct, job performance, or dependability. (r) “Vacancy” means an employment opportunity other than seasonal or temporary employment, which an air carrier seeks to fill from outside its existing or fur- loughed work force. § 220.02 Purpose. Section 43(d) of the Act provides a first-right-of-hire for designated employees of covered air carriers. The regulations in this Part are issued to effectuate, section 43(d)(1) and (2) of the Act (hereinafter referred. to as the Rehire Program). § 220.03 Scope. (a) The Rehire Program is applicable only to desig- nated employees, as more fully set forth herein, and only those employees who are expressly granted a hiring pref- erence under the Act and these regulations have any rights under the Rehire Program. The Secretary of Labor will-also publish a comprehensive list of jobs avail- able with air carriers. § 220.04 Responsibilities of the Secretrry of Labor. The Secretary of Labor is responsible for administer- ing the Rehire Program, and the Assistant Secretary for Labor-Management Relations, Labor-Management Serv- ices Administration (LMSA), has been delegated respon- sibility for the following: (a) The development and promulgation of policies, regulations and procedures covering the first-right-of- hire provisions of Section 43(d) (1) of the Act; (b) The development and promulgation of policies, regulations, and procedures covering the comprehensive job list required under Section 43(d) (2) of the Act; and (ce) The establishment and implementation of report- ing requirements for air carriers to obtain pertinent in- 46a formation necessary for fulfilling the Secretary’s respon- sibilities under Section 43 (d) (2) of the Act. Subpart B—Designated Employees’ Eligibility and Rights § 220.10 Eligibility requirements. (a) To qualify as a designated employee eligible for rights under this Part 220, an applicant must be a pro- tected employee who is involuntarily placed on furlough or is terminated by a covered air carrier during the eligibility period. (b) A protected employee shall not be deemed to be furloughed or terminated if such employee: (1) Retired voluntarily ; (2) Was required to retire by virtue of reaching the mandatory retirement age, if any, established by a cov- ered air carrier or as prescribed by any government agency with regulatory authority over a covered air car- rier; (3) Retired due to a disability ; (4) Is on strike or is withholding services in support of other Employees who have struck the covered air car- rier; (5) Is terminated for cause as defined in § 220.01; (6) Resigned or voluntarily quit for any reason. (c) A designated employee who is recalled by his for- mer carrier is no longer eligible under this section to exercise the first-right-of-hire. Such a person may be- come a designated employee in the future due to a sub- sequent termination or furlough which occurs on or prior to the expiration of the eligibility period. § 220.11 Designated employees’ rights. (a) A designated employee shall have a first-right-of- hire in such employee’s occupational specialty, regardless ; $ A 4 47a of age, with any covered air carrier hiring additional employees; Provided, however, That each designated em- ployee must satisfy all qualifications or other require- ments established by the hiring carrier ( subject to the limitations contained in Section 220.21) and must make a timely application in accordance with normal carrier procedures for any particular job vacancy. (b) A designated employee hired by any covered air carrier pursuant to the provisions of the Act shall not be required, as a condition of employment, or in any other manner, to relinquish, waive, or forfeit any seniority or recall rights which such person may possess with any other air carrier; Provided, however, That the provisions of this part shall not be deemed to create or prolong any such seniority or recall rights. Subpart C—Carriers’ Responsibilities § 220.21 Duty to hire. (a) Subject to § 220.24, a covered air carrier shall have the duty to hire a designated employee, regardless of age, who otherwise meets the qualification require- ments established by such carrier before it hires any other applicant when such carrier is seeking to fill a vacancy in the designated employee’s occupational spe- cialty from outside its work force. As used herein “work force” shall include all present employees and any fur- loughed or terminated employees who, at the time of fur- lough or termination, possessed recall or seniority rights. (b) Subject to the provisions of § 220.24, a covered air carrier shall not fill a vacancy, which would otherwise be available to a designated employee, by promoting or reassigning a seasonal or temporary employee, unless such seasonal or temporary employee is a designated employee. (c) When considering applications from more than one designated employee for a particular vacancy, a covered 48a air carrier shall be entitled to offer employment to any such designated employee in its absolute discretion. § 220.21 Criteria for Employment. (a) A covered air carrier shall be entitled to apply any prerequisites or qualifications determined by it for any vacancy, except that, solely with respect to the duty to hire created by the Act, a covered air carrier shall not be entitled to limit employment opportunities for desig- nated employees on the basis of: (1) Initial hiring age (provided that such prohibition shall not be applicable to retirement ages applicable to all of any class or craft of such air carrier’s employees) ; or (2) The existence of any seniority, recall rights or pre- vious experience with any other air carrier; Provided. however, That covered air carriers shall be entitled to require prospective employees to disclose the existence of any such seniority or recall rights in making application for employment and to take the existence or nonexistence of such rights into account in selecting from among those qualified designated employees who have applied for a particular job vacancy. (b) In filling job vacancies during the effective period, covered air carriers shall be entitled to require appli- cants to furnish evidence that they are designated em- ployees. § 220.22 Listing a vacancy. (a) During the effective period all air carriers shall be required to list each vacancy with the Center at the earliest practicable time, and to include with such list- ing a statement as to whether the carrier is subject to an equal employment opportunity requirement, as defined in these regulations, in filing the vacancy. In addition, any air carrier shall be entitled to list anticipated vacancies with the Center at any time. 49a § 220.23 Content of vacancy listing. Air carriers shall provide the Center with a descrip- tion for each job listing, which shall include, but need not be limited to, the following— (a) Job title; (b) Type of position (full or part-time) ; (c) Salary; (d) Basie qualifications and ‘or training requirements: (e) Brief description of duties: (f) Loeation of vacancy (if known) : (g) Special requirements such as type rating, licens- ing, skill requirements, etc. ; (h) Whether the vacancy is subject to the duty to hire; (1) Information on how to apply, such as contact per- son, mailing address, and any special application proce- dures; and (j) Whether the carrier is subject to an equal employ- ment. opportunity requirement, as defined in these regu- lations, in filling the vacancy . « $220.24 Filling a vacancy. (a) A covered air carrier may fill a vacaney with a designated employee at any time after a vacancy has been listed with the Center. (b) A covered air carrier may fill a vacancy with someone who is not a designated employee after the va- cancy has been listed with the Center for at least 30 calendar days; if (1) No designated employee with the requisite occupa- tional specialty has applied for the vacancy in accordance with § 220.30 within that time; . 50a (2) No designated employee who did apply within that time period meets the carriers’ criteria for employment as set forth in § 220.21; or (3) The vacancy is subject to an equal employment opportunity requirement and the carrier cannot satisfy such equal employment opportunity requirement by hir- ing a designated employee. (c) A covered air carrier may fill a vacancy on a tem- porary basis with someaze who is not a designated em- ployee while the carrier is considering applications for the vacancy which were received from designated em- ployees during the listing period. (d) The date of the listing shall be the date on which the listing is received by the Center. § 220.25 List of protected employees. (a) Within 60 calendar days of the effective date of these regulations, each covered air carrier shall provide the Secretary with a list of all protected employees who were employed by it on October 24, 1978. (b) The list shall contain the following information: (1) Protected employee’s name; (2) Social Security number (if available) ; and (3) Current occupational specialty for present employ- ees or occupational specialty at the time of separation from employment for former employees. (c) Not later than 90 calendar days after the effective date of these regulations, each covered air currier shal] provide a onetime notice to each employee with an em- ployment relationship with the carrier on October 24, 1978, stating whether or not the carrier has determined that employee to be a protected employee within the mean- ing of these regulations, and if so that the carrier has reported his or her name to the Secretary. Employees 5la who are determined to be not protected shall be advised of their rights to appeal. (2) Employees who dispute the carrier’s determina- tion of protected status may submit evidence of their status to the covered air carrier within 60 calendar days of receiving the notice required by paragraph (ce) (1). (3) The covered air carrier shal] consider the evidence submitted by the employee and shall inform the em- ployee of its final determination within 15 calendar days of the submission of evidence. In the event the car- rier determines that the employee qualifies as a protected employee, it shall forward the information required by paragraph (b) of this settion to the Secretary. § 220.26 Appeals to the Secretary. (a) If the employee disagrees with the carrier’s final determination under § 220.25 that he or she is not a protected employee within the meaning of this part, the employee (or his or her designated representative with express authorization) may appeal such determination to the Secretary within 60 calendar days of the carriey’s final decision under $ 220.25(c) (3) or the date when such decision was required. (b) An appeal must be written, dated, and signed by the employee. It must set forth: (1) The full name, address, and telephone number of the employee; (2) The full name and address of the carrier making the determination: the ful] name of the individual(s) who made the determination for the carrier and the date of that determination; (3) A summary of the pertinent events and circum- stances concerning the employee’s status and the basis of the disagreement, including the original date of hire, 52a date of all periods of furlough, leave or termination, and copies of relevant documents; and (4) Such other information as may be required by the Labor-Management Services Administration (LMSA). (c) Any appeal hereunder may be filed with any office of the LMSA, (LMSA Area offices are listed as an ap- pendix to these regulations). Upon receipt, an appeal will be forwarded to an LMSA Regional Office where the Regional Administrator will make a preliminary review of the appeal, and if warranted, request information from the parties or conduct such other investigation as may be required. If the matter cannot be resolved in- formally, the Regional Administrator will forward the file to the Secretary for review. (d) If upon review of an appeal hereunder the Secre- tary determines that further action is not appropriate, he will so advise the parties. If upon review of the entire record the Secretary determines that the employee quali- fies for protected status, the Secretary will take appro- priate steps to add the employee’s name to the list of protected employees and will so notify the parties. § 220.27 Notice of Rights. (a) Not later than the date of separation from employ- ment, a covered air carrier which furloughs or terminates a protected employee during the eligibility period, unless such furlough is limited to a specific period of less than 90 calendar days, shall furnish such protected employee with a notice of rights in the form of a letter or other written documentation that such employee is a designated employee and thereby is entitled to exercise a first-right- of-hire. Such notice of rights shall include, but not be limited to the following information: (1) Name: (2) Social Security number (if available) ; iia ii ia 53a (3) Occupational specialty ; (4) Date of furlough or termination; (5) An official of the covered air carrier who can verify the individual’s status as a designated employee; and (6) Signature, name, and location of the certifying official. (b) As soon as practicable, but not later than 60 calen- dar days following the effective date of these regulations, each covered air carrier shall make a reasonable effort to provide the notice of rights required in paragraph (a) of this section to any designated employee who was fur- loughed or terminated by such carrier on or after Octo- ber 24, 1978, and prior to the effective date of these regu- lations and who has not been recalled to employment by such covered air carrier. (c) A covered air carrier shall provide a verified true copy of the notice of rights to a designated employee who has lost his or her original copy. $ 220.28 Air carrier actions to be reported to the Secre- tary. (a) A covered air carrier shall report to the Secretary: (1) The names and Social Security numbers (if avail- able) of all designated employees hired by it, and (2) The filling of any vacancy with other than a des- ignated employee. With respect to any occurrences re- ported under paragraph (a) (2) of this section, the report of the covered air carrier shall contain the job num- ber assigned to that vacancy by the Center, the date of hire, and a certification by a corporate officer that the carrier complied with the provisions of this part and that no qualified designated employee with the requisite occu- pational specialty applied in a timely manner. ill 54a (b) Two copies of the reports required by this section shall be filed with the Secretary covering the six-month periods ending June 30 and December 31 of each calen- dar year in which these regulations are in effect and shall be submitted within 60 calendar days of the end of the reporting period. §$ 220.29 Equal Employment Opportunity. (a) Where a covered air carrier is under an equal employment opportunity requirement, the covered air car- rier shall, to the extent possible, satisfy this equal em- ployment obligation by hiring qualified designated em- ployees. (b) Where a covered air carrier is under an equal employment opportunity requirement and cannot satisfy such requirement by hiring from the pool of qualified designated employees, the carrier may meet its equal em- ployment requirement by hiring non-designated employees. Provided, however, That this provision shall not change or reduce the responsibilities of carriers in regard to the hiring procedures required by §§ 220.21, 220.22, 220.23, and 220.24. Subpart D—Designated Employees’ Responsibilities § 220.30 Designated employees’ responsibilities. It is the responsibility of each designated employee to: (a) Make application to any covered air carrier for whom the designated employee desires to work in the time and manner required by such carrier. (b) To insure that an application previously submitted to a covered air carrier which currently lists a vacancy is in an active status se as to be considered for such vacancy ; (c) To provide a copy, if requested, of the notice of rights to a potential employing air carrier, and EE 55a (d) To retain the original notice of rights for future use. Subpart E—Department of Labor’s Responsibilities § 220.40 Comprehensive job list. (a) The Secretary shall establish a Center to maintain a comprehensive listing of all vacancies listed by air car- riers in accordance with §§ 220.22 and 220.23. (b) The Center will be accessible by telephone through- out the United States to facilitate the listing or modifying of vacancy information by air carriers. (c) The Center shall provide an air carrier with an identifying number for each vacancy listed on the com- prehensive listing. (d) The comprehensive listing shall be compiled, pub- lished and distributed to each local office of the State Em- ployment Security Agencies on a periodic basis as deter- mined necessary by the Secretary, and it shall be distrib- uted to such other individuals or organizations as may desire to receive copies thereof in accordance with criteria established by the Secretary from time to time. $ 220.41 List of protected employees. The Secretary shall establish and publish a list of pro- tected employees as reported by covered air carriers under $ 220.25. A copy of this list shall be sent to all covered air carriers as soon as available. Subpart F—Administration $220.50 Effective period of the program. (a) Beginning date. (1) The requirements set forth in this part shall be effective 60 legislative days from publi- cation of these regulations (A legislative day is defined 56a by the Act as a calendar day when both Houses of Con- gress are in session). (2) The Department shall publish a notice in the Fed- eral Register announcing the actual effective date. (b) Ending date. This program and these regulations terminate on the last day of the effective period. (ec) Nothing in this Part shall affect the rights and duties of protected employees and covered air carriers under the Act prior to the effective date of this Part. $ 220.51 Disclosure of information. The Department of Labor shall make available to cov- ered air carriers and to designated employees or their authorized representatives, all reports, certifications, or lists collected under this Part, to the extent permitted by the Privacy Act (5 U.S.C. 552a) and the Department’s regulations issued pursuant to that Act (29 CFR Par‘ 70a). Appendix I—U.S. Carriers Certificated as of October 23, 1978, Under Section 401 of the Federal Aviation Act of 1958, as amended (Annotations Reflect Operating Status as of October 25, 1985). 1. Airlift International, Inc. 2. Air Micronesia, Inc. 3. Air Midwest 4. Air New England, Ine. (7) 5. Air Wisconsin, Ine. 6. Alaska Airlines, Inc. 7. Allegheny Airlines, Inc. (2) Aloha Airlines, Inc. 8 9. American Airlines, Inc. 12 57a Aspen Airways, Ine. Braniff Airways, Ine. (1) Capitol Internationa] Airways, Ine. (3) Chicago Helicopter Airways, Inc.* Colonial Airlines, Inc. (7) Continental Air Lines, Ine. Delta Air Lines, Inc. Eastern Airlines, Ine. Evergreen Internationa] Airlines, Ine. The Flying Tiger Line, Inc. Frontier Airlines, Inc. Hawaiian Airlines, Inc. Hughes Air Corp.* (4) Kodiak Western Alaska Airlines, Ine. Mackey Internationa] Airlines, Ine.* McCulloch Internationa] Airlines, Ine. Midway Airlines, Ine. Midway (Southwest ) Airways Co. Modern Airways, Ine. (1) Munz Northern Airlines, Ine. National Airlines, Inc.* (5) New York Airways. Inc.* North Central Airlines, Ine.* (4) Northwest Airlines, Ine. Overseas National Airways, Ine. (6) Ozark Air Lines, Ine, 58a 36. Pan American World Airways, Inc. 37. Piedmont Aviation, Inc. 38. Reeve Aleutian Airways, Inc. 39. Rich International Airlines, Inc. 40. Seaboard World Airways, Ine.* (7) 41. Southern Air Transport, Inc. 42. Southern Airways, Inc.* (4) 43. Texas International Airlines, Inc. 44. Trans International Airlines, Inc. (8) 45. Trans Wor!d Airlines, Inc. 46. United Airlines, Inc. 47. Western Air Lines, Inc. 48. Wein Air Alaska, Inc. 49. World Airways, Inc. 50. Wright Air Lines, Inc. 51. Zantop International Airlines, Inc. * No longer holds certificate. (1) Holds certificate, but not operating. (2) Renamed U.S. Air, Ine. (3) Renamed Capitol Air, Inc. (4) Merged in to Republic Airlines, Inc. (5) Merged into Pan American World Airways, Inc. ‘6) Ceased operations in September 1978. (7) Merged into Flying Tiger Line, Inc. (8) Renamed Transamerica Airlines, Inc, 59a LEGISLATIVE MATERTAL Senate Report No. 631, 95th Cong., 2d Sess., 113-17 (1978) [Senate Report at 113] The Committee believes that enactment of this regula- tory reform bill will increase the total number of jobs in the airline industry. The purpose of the bill is to create a more competitive environment through an easing of entry restrictions and increase in pricing flexibility. Because the elasticity of demand for airline service is relatively high in many markets, the lower fares inherent in a more competitive industry should lead to an increase in the number of airline Passengers. This increase, as well as the greater number of competitors that would result from less restricted market entry, should lead to additional airline flights. More passengers and flights would necessarily entail expanded overall employment opportunities. ferent levels of growth. There is certainly a possibility, however, that one or more airlines will encounter such difficulties in adjusting that they will lose enough traffic to cause a major reduction in their total labor force. The theoretica] possibility that a major reduction might occur in the labor force of one or more airlines is the pri- mary source for the serious concern expressed about this bill by many airline employees and their labor representa- tives, The Committee felt that this concern should not be ignored and that careful] consideration of the question of employee protection programs was warranted. The 60a Committee concluded that the kind of employee disloca- tions that might occur as a result of the new regulatory structure should be dealt with by a Statutory employee protection program, as has been done in certain cases in the past. The fundamental reason why this regulatory reform bill should include an employee protection program is that for 40 years the U.S. airline industry has been regu- lated in all of its most economically significant aspects, including entry, exit, and pricing. This regulation has protected from competition the fares and routes of cer- tificated airlines, thus protecting their traffic and revenue as well. An airline’s traffic and revenue is of course the key to its economic well-being—and its need for and abil- ity to pay employees. Regulation has, therefore, had the effect of reducing the potential for major employment reductions in individual airlines (at the Same time, how- ever, reducing potential increases not only in each air- line but in the industry as a whole). An additional aspect of the regulatory system which has had protectionist value to employees has been that certificates have become extremely valuable as a result of entry restrictions. Because of the value of their certifi- cates, airlines in serious financial difficulty have without exception been able to merge with stronger airlines, thereby avoiding bankruptcy or substantial system con- traction. A statutory condition for merger has been CAB approved. Such approval has been forthcoming only if the merger agreement contained a satisfactory program for employee protection. [Senate Report at 114] Airline employees have relied on the present regulatory system through their reliance on the conditions which have resulted from that system. They have relied directly in their decision to enter the industry and indirectly through their acceptance of compensation and work rules which have been negotiated within the context of the regulatory system and the job security it was thought to offer. 6la them time for adjustment before the full force of the new regulatory system is felt. However, an individual employee will be able to do little to adjust to the new Structure, Many airline employees have given most of their working lives to the air transportation industry and have too much invested to leave it now. In many cases, their employers can, the Committee believes that a rea- Sonable program of transition assistance Should be pro- vided. Critics of the employee protection program argue that airline employees are no more deserving of protection OC aa lishment of pollution or occupational safety standards) that have adverse effects on their employers. The Com- mittee disagrees. The air transportation industry is one of the few industries in the United States which is so comprehensively regulated, and thus immune from nor- mal market forces. It is because of the past decisions of Congress to require such regulation that the present air transportation system has developed as it has. In order to conduct their operations, the airline companies had no choice but to comply with these regulations. This forced compliance led to a justifiable reliance on the stability of the regulatory structure. The Committee believes that Congress, having acted to prevent the normal free market evolution of the industry, now has a duty to the industry and its employees which would not exist if such action had not been taken. In order for Congress responsibly to change its policy now and require the industry to move toward a much more competitive market oriented environ- ment, Congress should attempt to minimize the disloca- tions caused by the change. The change in policy and the temporary dislocations it may cause would not be [Sen- ate Report at 115]|*necessary if Congress had not left in place so long a regulatory framework designed for the conditions that existed in the 1930's. These considerations do not apply when a Government contract is cancelled or when Congress changes the gen- eral legal background of competitive industries, such as by enacting new pollution standards. No company can reasonably rely on the renewal of a Government con- tract any more than it could rely on the renewal of a contract with a private buyer. Cancellation of a con- tract by Government or any other economic entity im- poses no special responsibilities or duties outside the dic- tates of applicable contract law. A company is not re- quired to enter into Government contracts. Similarly, @ company cannot reasonably assume that the general gal environment within which it must do business will not change, and certainly not that all the physically dam- 63a aging effects of a business on the persons and property of others will not eventually be restricted by statute. Another concern expressed to the Committee is the fear that its employee protection program would set an unfavorable precedent for future legislation. The Com- mittee believes that an employee protection program is justified only in very special circumstances. As indicated, the Committee concluded that the particular features of the airline industry and the regulated environment in which it has existed since 1938 make a temporary tran- sitional assistance program appropriate. The appropri- ateness of such programs for future regulatory reform legislation must be examined on a case by case basis. The Committee believes that the increased vitality of the airline industry, with the accompanying increased employment opportunities, that will result from enact- ment of this bill will alleviate a good deal of anxiety and opposition to similar regulatory reform efforts in the future. The alternatives are clear: continued regulation and thus a continuing economic loss to the public, versus de- creased regulation and, therefore, decreased loss to the public, potentially paid for by a temporary assistance program. Features of the employee protection program The employee protection program fashioned by the com- mittee limits as much as possible the potential expéndi- ture of Government funds, while providing a comprehen- sive program of protection for dislocated employees. In order to be eligible for assistance an employee must have at least 4 years full-time experience with a certif- icated airline as of the date of enactment. These pro- tected employees would then be eligible for monetary compensation in the event of job loss, relocation, or re- duction’ in wages suffered in connection with a_bank- 64a ruptey or “major contraction” of their employer which occurred within the first 10 years of enactment and which Was In major part caused by the change in the regula- tory structure brought about by the act as determined by the Board. The requirement for 4 years experience is included be- cause the committee believes that employees with 3 years or less seniority have not relied to a substantial enough degree on the present system to warrant protection. They have made less of a commitment to a particular airline and would suffer fewer difficulties and hardships in shift- ing to new employment. Senate Report at 116! The 10-year period was selected because it is during such period that the airlines will be making most of their adjustments to the new system. Carriers will be ration- alizing their route structures and establishing fares for the first time in an environment relatively unfettered by regulatory constraints. Because of the particular transi- tional provisions in the bill (‘for example, some auto- matic entry protection phases out in 3 years, the re- mainder in 5 years, and section 406 subsidy will phase out in 7 years), by the end of the 10-year period the carriers’ competitive capabilities will have been tested and the successes or failures of adjustments to the new climate demonstrated. A “major contraction” is defined as a reduction by at least 15 percent of the total number of full-time employ- ees of the employing carrier occurring within a 12-month periot, Strike-related reductions will not be counted for this purpose. The 15-percent figure was chosen as the lowest figure consistent with the desire to avoid CAB determinations of causality with respect to dislocations caused by normat economic fluctuations. In the last 20 years, there have been only a few non-strike-related in- stances when the 15-percent level has been exceeded. The 15-percent test was chosen not only in order to reduce the number of CAB investigations, but also because the com- 65a mittee felt that assistance should only be made available if the employing carrier were in major financial diffi- culty. Otherwise, the protection offered in the collective bargaining agreement should be relied upon. Any par- ticular reduction of less than 15 percent would, neverthe- less, constittue a major contraction if the Board deter- mined that other reductions were likely to occur such that the test would be satisfied. This provision is intended to give displaced workers in clear cases the ability to re- ceive assistance without their having to wait a full year before becoming eligible. Under the program, each regulated air carrier is re- quired to give priority hiring to displaced employees who satisfy the eligibility requirement as described above. Thus, few such employees would be without work for a long period of time. In addition if compensation pay- ments began, the Secretary of Labor would be required to periodcially publish a list of available jobs in aero- nautics and related industries. Employees receiving com- pensation payments would be required to accept “reason- ably comparable” employment or else lose a portion of their benefits, except that if the new job required reloca- tion, the employee could elect not to relocate but would receive benefits for a shorter period. The provisions are intended to place on the employees the reasonable require- ment of seeking and accepting available employment while still providing assistance where necessary. The interac- tion of these provisions will decrease the cash payments required under the program. Eligible employees who list their jobs would be entitled to monthly assistance payments for a maximum of 3 years or until they were reemployed, whichever occurred first. The amount of such payment would be equal to a percentage of former wages, as determined by regula- tions promulgated by the Department of Labor. These regulations will be subject to congressional review. The committee considered setting statutory percentage figures boa and maximum dollar amounts, but concluded that the Secretary of Labor, after consultation with the Secretary of Transportation, will be in a better position to deter- Inine {Senate Report at 117| the appropriate amounts. The committee intends that the percentages chosen will result in compensation payments that are less than the employees’ after-tax income in order to preserve maxi- mum incentives for empiovees to secure comparable WOrk. An eligible employee sullering a reduction in wages, would be entitled Lt rece] e a py rcentage of the decrease In Wages, as set forth in regulations of the Department of Labor, determined pursuant to the preceding para- graph. Again, the maximum payment period is 3 years, ’ ; ' . — ; . rant tha ; » tat — . : 4 . +L], ‘ +s ve" 1 except ina ne ‘ ai n iImMbde) Wl montnliy SsIstance pa\y- ments—the payments for unemployment together with the ; + : it ‘are salct 4 . ] yi . payments Tor reduce dw ves COUiIG Nor. exceed sb An lig tT m nina ) + - ‘ —o oe er } eligible emplovee required enocace Would be entitied tO reasonable moving and 1|i\ ing expenses aS Well as com- pensation for any loss incurred on the sale of a residence, Cancellation OT a contr: | purcnase mM y} nel Fa > +h — . . not I e 3 aine and address oO ne Carrier against rhon ne mplal! S alrected: 9, TT, fe, — —ae f +h ~~ rth ks ine Tull MAiNi© alid aQQaress OF the carrie) Wi1tn ; ' . ‘ . . . ‘ . an ry at . Woon ne 3 I vas idst emplioved and tne date on + + > . + . > "a? yhich the complainant was furloughed or terminated by ‘ } r ’ y , 4‘ aa { i] ) 4 ~ YY) , > +? , eae "+ >t + 9 scl Sh wabeha. , 4 4 pt t t vents and Clr¢ ul ag 1g . . } of , ~ y*) , , - ‘ “y ‘ >} ) "OT1} + . . j ce i ‘ 2 ne a CLOCU ia lire OQ) retusa! LU nire y ? ? ? +} )* : ? ron ? ™ >. il \ lid) es Apja Ulla Spt + } h+ + + y . > +} mMNaAWwWIAGAH } y — a ) 7 it? t iu L1iie Ul t i Uivyidudad > +} 14 } } +} } t ? ’ *h > ve" » re esente ne rrer, and € date on whic ne ; ; Mpialnant was denied employment: and 4 TH} ‘ y ry aAricjreac neo Ta ryr Y) nNimm|! ) ? i [le i f a ir ss ali cic} ILE AIT1 DC + ) + +) y) ? y Yr) *¢ ) t ‘ t j tAa LNeSE Ce uUld } 2 , ? » ‘ ‘ nN? 7 > ? > ‘ y , aé , = 4 ‘ ‘ | , sam, } , ‘ ? Tere? Are 68a Offices of the LMSA, the cases shall be consolidated and investigated by the Area Administrator in whose area the alleged violation occurred. (3) A complaint must be filed within 90 calendar days of the alleged denial of the first right of hire. (4) The Area Administrator will serve the named car- rier with a copy of the complaint. (d) Investigation of complaint. (1) After a complaint has been filed with an Area Office, the Area Administra- tor will make a preliminary review of the complaint, and if warranted, will conduct an independent investigation. (2) The Area Administrator will prepare and submit to the LMSA Regional Administrator a report of inves- tigation, with recommendations. (3) If the LMSA Regional Administrator determines that a reasonable basis in Support of the complaint has been established, the parties will be encouraged to enter into a voluntary settlement of the dispute and will be assisted in such effort by the LMSA. (4) If the parties agree upon and implement a volun- tary settlement, the case will be closed. (5) If the parties fail to reach a voluntary settlement Within a reasonable time, and the LMSA Regional Ad- ministrator determines that a voluntary settlement is un- likely, the LMSA Regional Administrator wil] prepare a report of his findings in the case and submit this report of findings to the Assistant Secretary for LMSA for ap- propriate action. ‘e) Dismissal or withdrawal of complaint. (1) The LMSA Regional Administrator, upon review of the report of investigation, may authorize the Area Administrator to request the complainant to withdraw the complaint if it is determined that: (1) The complaint has not been timely filed; 69a (ii) A reasonable basis for the complaint has not been established by the investigation: or (iii) Other appropriate reasons warrant such action. (2) A complainant may file a written request to with- draw the complaint previously filed. Such withdrawal re- quest, whether initiated by the complainant or submitted in response to a request by the Area Administrator, shall be approved by the LMSA Regional Administrator. Upon approval, the case shall be closed and the complainant shall have no right to file an appeal to the Assistant Sec- retary for LMSA. (3) If the complainant does not withdraw the com- plaint, as requested, with a reasonable time. the LMSA Regional Administrator may dismiss the complaint. The letter of dismissal shall set forth a summary of the facts revealed by the investigation and the reasons for the dis- missal. (f) Rights of Appeal, (1) If the complaint is dis- missed by the LMSA Regional Administrator. the com- plainant may file a written appeal with the Assistant Secretary for LMSA. The appeal must be filed within 15 days of the date of receipt of the LMSA Regional Admin- istrator’s letter of dismissal and shal]