Appendices — American Airlines, Inc. v. Davies

TABLE OF CONTENTS

APPENDIX A

Decision of United States Court of Appeals for

the Tenth Circuit, Davies v. American Airlines.

Inc., July 18, 1992

APPENDIX B

Judgment Notwithstanding the Verdict and Order

Granting Defendant’s Motion for Judgment Not-

withstanding the Verdict, United States District

Court for the Northern District of Oklahoma,

Davies v. American Airlines, Inc., September 28,

1990

APPENDIX C

Decision of Tulsa Area Board of Adjustment,

American Airlines, Ine., and Transport Workers

Union, Local 514, Scott Davies: Termination, Janu-

ary 24, 1990

APPENDIX D

Order of United States Court of Appeals for the

Tenth Circuit Denying Appellee’s Petition for Re-

hearing and Suggestion for Rehearing En Banc,

Davies v. American Airlines, Inc.. September 8,

|: ae ee ee oe,

APPENDIX E

Order of United States Court of Appeals for the

Tenth Circuit Staying Mandate, Davies v. Ameri-

can Airlines, Inc., October 1, 1992

APPENDIX F

Relevant Provisions of TWU/American Airlines

Collective Bargaining Agreement

APPENDIX G

Relevant Provisions of American Airlines Em-

ployee Handbook

APPENDIX H

Relevant Statutory Provisions ................................

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40a

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APPENDIX A

U.S. COURT OF APPEALS

TENTH CIRCUIT

(DENVER)

No. 90-5231

DAVIES

V.

AMERICAN AIRLINES, INC.

July 13, 1992

Appeal from the U.S. District Court for the Northern

District of Oklahoma. Reversed and remanded.

Gary G. Grisso (Joe L. White, with him on brief)

Collinsville, Okla., for appellant.

’

Reuben Davis (Frederic N. Schneider III, Kimberly

A. Lambert, and Boone, Smith, Davis, Hurst & Dick-

man, with him on brief), Tulsa, Okla. for appellee.

Before ANDERSON and EBEL, Circuit Judges, and

ANDERSON, Senior District Judge.*

Full Text of Opinion

EBEL, Circuit Judge:—This appeal arises out of a

claim, based upon Oklahoma law, for wrongful termina-

tion of employment in violation of public policy. See

*The Honorable Aldon J. Anderson, Senior District Judge of

the United States District Court for the District of Utah, sitting

by designation.

2a

Burk v. K-Mart Corp., 770 P.2d 24, 28-29 (Okla. 1989).

Three issues are raised: First, is this state law action

a “minor” dispute within the exclusive jurisdiction of an

arbitral board under the Railway Labor Act (“RLA”)?

Second, does Oklahoma law provide a remedy for wrong-

ful termination in violation of public policy where other

remedies are available? Third, does Oklahoma law pro-

vide a remedy for wrongful termination in violation of

publie policy for employees who can only be terminated

for “just cause’?

We conclude that this cause of action is not a “minor”

dispute under the RLA and, hence, the district court had

jurisdiction to decide the case. Qn the merits, we con-

clude that Oklahoma would recognize the tort of wrong-

ful termination in violation of public policy even if other

remedies are available to the employee and even if he can

be terminated only for “just cause.” Accordingly, we

reverse the district court’s grant of the Defendant’s mo-

tion for judgment notwithstanding the verdict (“JNOV”)

and we remand to reinstate the jury verdict.

FACTS

The Plaintiff, Scott Davies, was employed as a me-

chanic by the Defendant, American Airlines (‘“Ameri-

can’), in Tulsa, Oklahoma. His employment was gov-

erned by the terms of a collective bargaining agreement

(“CBA”) between American and the Transport Workers

Union (“TWU”’), the exclusive bargaining agent for

American’s mechanics. Under the CBA, Davies could be

discharged only for “just cause.”

Davies sought to change the mechanics’ representa-

tion to the Aircraft Mechanics Fraternal Association

(“AMF A”), a rival of the TWU. To this end, he placed

an advertisement in a local newspaper announcing a de-

bate between representatives of the two unions. Ameri-

can approached Davies after the publication of the ad-

vertisement and reprimanded him for using the words

ee i om

8a

“American Airlines” in the advertisement without per-

mission from American. According to American, the

use of its name in the advertisement erroneously made

American appear to be a sponsor of the debate. Ameri-

can’s position was that the advertisement was false, in

violation of its Employment Rule 21, and harmful to the

welfare of the company, in violation of its Employment

Rule 24. When Davies refused to acknowledge his al-

leged wrongdoing and refused to promise that he would

not repeat it, American terminated his employment. In

arbitration, it was found that Davies had violated Amer-

ican’s rules and that, therefore, American had “just

cause” to discharge him. However, the arbitrator did not

address the issue of whether the discharge violated

clearly established public policy and therefore was ac-

tionable under Burk.

Prior to the disposition of the arbitration, Davies sued

American based upon Burk, which provides a right of

action to employees who are discharged in violation of

public policy. Davies argues that even if he did violate

American’s rules, thereby giving American “just cause”

to discharge him, American’s actual motivation for the

discharge was not to stop his violations of its rules, but

rather to stop his unionizing activity. Because public

policy supports the right to select union representation,

Davies argues, his discharge violated public policy and

entitled him to recover under Burk. The jury agreed that

American was motivated by anti-union animus and re-

turned a verdict in favor of Davies.

American moved for JNOV on three bases. First,

American argued, Davies’ Burk action is a “minor” dis-

pute under the RLA. Because the RLA vests mandatory

and exclusive jurisdiction over “minor” disputes in an

arbitral board, American argued, the courts are pre-

empted from hearing such disputes. Second, American

argued, Burk does not provide a cause of action for

violation of a public policy which already has a remedy

available for enforcement. Third, American argued,

4a

Burk is limited to “at will’ employees and does not pro-

vide a cause of action for employees like Davies who can

only be discharged for “just cause.” The district court

granted JNOV for American based on its last two ar-

guments. Davies appeals that decision.

I. RLA Preemption '

Although the district court’s grant of JNOV was not

based upon RLA preemption, American continues to urge

this argument as a ground for affirmance. RLA preemp-

tion is jurisdictional. See Zimmerman v. Atchison, T. &

S.F. Ry., 888 F.2d 660, 661 (10th Cir. 1989) (per

curiam). Accordingly, we address this argument first.

The RLA provides an arbitral forum for the resolution

of “disputes between an employee... and a carrier .

growing out of grievances, or out of the interpretation

or application of agreements concerning rates of pay,

rules, or working conditions.” 45 U.S.C. §$ 153 First

(i) & 184.° Such disputes have been characterized as

1 By “preemption” we refer to forum preemption. As explained

below, the RLA vests exclusive and mandatory jurisdiction over

certain claims in an arbitral forum and gives the courts only ex-

tremely limited powers of review over decisions of the arbitral

board. This doctrine is not the same as the doctrine of field pre-

emption, which addresses whether Congress has explicitly or im-

plicitly (by pervasive and comprehensive regulation) precluded

states from regulating a particular area of conduct.

*The RLA was extended to cover the airlines by 45 U.S.C.

$§ 181 to 188. The mediation and arbitration procedures differ

somewhat in the air carrier context as opposed to the railroad

context. Howewer, we have regularly looked to §$ 153 railway pre-

emption cases in determining the scope of preemption in the air

carrier context under § 184. See, e.g., Barnett v. United Ai Lines,

738 F.2d 358, 361-62 (10th Cir.), cert. denied, 469 U.S. 1087. 105

S.Ct. 594, 83 L.Ed.2d 703 (1984). Accordingly, we do not distin-

guish between the two contexts for purposes of preemption.

Although § 153 does not contain a comma after the word “vriev-

ances,’”’ we include the comma because it does appear in § 184, the

alr carrier statute.

5a

“minor” disputes. See Andrews v. Louisville & N. R.R.,

406 U.S. 320, 321-22, 92 S.Ct. 1562, 1563-64, 32 L.Ed.

2d 95 (1972).

In Andrews, the Supreme Court held that the arbitral

remedy provided under section 153 of the RLA is man-

datory and exclusive for “minor” disputes. Jd. at 322,

325, 92 S.Ct. at 1564, 1565. Thus, if Davies’ Burk action

can be characterized as a “minor” dispute, then the courts

generally lack jurisdiction to hear it. Barnett v. United

Air Lines, 738 F.2d 358, 361 (10th Cir.) cert. denied,

69 U.S. 1087, 105 S.Ct. 594, 83 L.Ed.2d 703 (1984).

The distinction between “major” and “minor” disputes

was elaborated upon in Consolidated Rail Corp. v. Rail-

way Labor Executives’ Association, 491 U.S. 299, 109

S.Ct. 2477, 105 L.Ed.2d 250 (1989) (“Conrail”). “The

distinguishing feature of [a ‘minor’ dispute] is that the

dispute may be conclusively resolved by interpreting the

existing [collective bargaining] agreement.” Jd. at 305,

109 S.Ct. at 2481.

A. The Need for CBA Interpretation

American argues that Davies’ Burk suit is a “minor”

dispute because it requires interpretation of an existing

CBA. Specifically, American argues that its defense to

the suit—i.e., that Davies was fired for ‘‘just cause’—

requires interpretation of the “just cause” provision of

the CBA. Thus, American argues, this suit is preempted.

See Andrews, 406 U.S. at 324, 92 S.Ct. at 1565; Zim-

merman, 888 F.2d at 662; Barnett, 738 F.2d at 361.

3 Federal courts can, under some circumstances, review the find-

ings and order of the arbitrator. See 46 U.S.C. § 153 First (q)

(court can set aside order where the arbitrator fails to comply

with requirements of RLA, lacks jurisdiction, or engages in fraud

or corruption); Barnett, 738 F.2d at 362 (plaintiff can challenge

propriety of arbitral decision if union’s breach of duty of fair

representation “seriously undermined the integrity of the arbitral

process”). However, none of these grounds for federal court re-

view in a “minor” dispute are at issue in the case at bar.

6a

However, the Supreme Court rejected such an argu-

ment in Lingle v. Norge Division of Magic Chef, Inc., 486

U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Lingle

involved a defense of preemption under section 301 of

the Labor Management Relations Act (“LMRA”), 29

U.S.C. § 185. Under the LMRA, like the RLA, preemp-

tion occurs “if the resolution of a state-law claim de-

pends upon the meaning of a collective-bargaining agree-

ment.” Lingle, 486 U.S. at 405-06, 108 S.Ct. at 1881.

Lingle involved a plaintiff who alleged she was illegally

discharged in retaliation for filing a workers compen-

sation claim. The employer disagreed with that char-

acterization and claimed that the plaintiff was fired

for “just cause” under the CBA. Lingle held that the

plaintiff’s retaliatory discharge claim under the state

workers compensation laws could be tried without in-

terpreting the CBA. Accordingly, the Court held that

the claim was not preempted notwithstanding the fact

that “the state-law analysis might well involve attention

to the same factual considerations as the contractual de-

termination of whether |the employee] was fired for just

cause.” Jd. at 408, 108 S.Ct. at 1883.

In Marshall v. TRW, Inc., Reda Pump Division, 900

F.2d 1517 (10th Cir. 1990), we faced a similar situa-

tion where the plaintiff asserted he had been terminated

for filing a workers compensation claim. The employer

responded that the plaintiff was terminated for “just

cause’ under the CBA. The plaintiff responded that

the “just cause” reason was pretextual. Applying Lingle,

we held that a court could determine whether the plain-

tiff was terminated in retaliation for a workers com-

pensation filing without interpreting the ‘just cause”

provision of the CBA. /d. at 1521. Even if the employee

violated the employer’s rules, giving the employer “just

cause” to discharge him, the question is whether the em-

ployer’s motivation for the discharge was the rule viola-

tion or retaliation for an activity protected by the retalia-

tory discharge law. Accordingly, we held that the claim

was not preempted by the LMRA. Id. Hence, interpreta-

7a

tion of the “just cause” provision of a CBA is not neces-

sary to resolve a retaliatory discharge suit.

Davies’ Burk suit is essentially a retaliatory discharge

suit. The gravamen of his action is that American’s ac-

tual or primary motivation in firing him, irrespective of

any “just cause” it may have had under the CBA, was to

stop his unionizing activity. Thus, we hold, pursuani to

Lingle and Marshall, that Davies’ Burk action does not

require interpretation of the CBA and is therefore not

preempted by the RLA on that ground.*

American urges that Lingle, which dealt with the

LMRA, is inapposite in the RLA context. However, we

believe that the test articulated by Lingle for determin-

ing whether a dispute requires CBA interpretation is

just as valid under the RLA as it is under the LMRA.

At least four circuits have looked to LMRA cases such as

Lingle to determine whether a claim involved CBA inter-

pretation for purposes of RLA preemption. See Deford

v. Soo Line R.R., 867 F.2d 1080, 1087 (8th Cir.) (dis-

tinguishing Lingle), cert. denied, 492 U.S. 927, 109 S.Ct.

3265, 106 L.Ed.2d 610 (1989); Beard v. Carrollton

R.R., 893 F.2d 117, 122 (6th Cir. 1989) (same) ; McCall

v. Chesapeake & Ohio Ry., 844 F.2d 294, 304 (6th Cir.)

4 Appellee has cited to us the recent Eighth Circuit case of

Calvert v. Trans World Airlines, Inc., 959 F.2d 698 (8th Cir.

1992). However, we find that case inapposite. That case, unlike

the one before us, involved a claim for intentional infliction of

emotional distress and the Eighth Circuit concluded that claim

could not be resolved without interpreting the CBA to determine

if it justified or authorized the conduct at issue. If so, the tort

claim would fail. Thus, the court concluded that the plaintiff’s

claims there “arise from the interpretation and application of

the [CBA], and the RLA preempts [such claims] as a minor

dispute... .” Jd. at 700. The Tenth Circuit has drawn this same

distinction, concluding that a claim for intentional infliction of

emotional distress was preempted by § 301 of the Labor-Manage-

ment Relations Act while recognizing that a retaliatory discharge

claim would not be so preempted because it rests on a basis inde-

pendent of the CBA. Johnson v. Beatrice Foods Co., 921 F.2d 1015

(10th Cir. 1990).

8a

(Order on Rehearing) (same), cert. denied, 488 U.S. 879,

109 S.Ct. 196, 102 L.Ed.2d 166 (1988) ; Leu v. Norfolk &

W.Ry., 820 F.2d 825, 830 (7th Cir. 1987) (The “reason-

ing [of a pre-Lingle LMRA case] is equally applicable to

the determination of whether a claim couched in terms of

a state tort law actually arises under an RLA collective

bargaining agreement.” ).

It is true, as the Supreme Court noted in Andrews,

that RLA preemption is statutory whereas LMRA pre-

emption is contractual. 406 U.S. at 323, 92 S.Ct. at 1564.

However, we do not believe that affects the inquiry into

whether a claim requires interpretation of a CBA.®

B. “Minor” Disputes not Requiring CBA Interpretation:

The “Omitted Case”

American next argues that a dispute may be “minor”

even where a claim does not require CBA interpretation.°

In Elgin, Joliet & Eastern Railway v. Buriey, 325 U.S.

711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945), the Supreme

Court defined a “minor” dispute as one that

relates either to the meaning or proper application of

a particular provision [of the CBA] with reference

to a specific situation or to an omitted case. In the

latter event the claim is founded upon some incident

of the employment relation, or asserted one, inde-

pendent of those covered by the collective agreement,

e.g., claims on account of personal injuries.

Id. at 723, 65 S.Ct. at 1290 (emphasis added). American

argues that under Burley we must consider an “omitted

5 Although the Ninth Circuit held that the statutory, as opposed

to contractual, origin of the RLA affects the inquiry into whether

a claim requires CBA interpretation. Grote v. TransWorld Airlines,

905 F.2d 1307, 1309-10 (9th Cir.), cert. denied, —— US.

111 S.Ct. 886, 112 L.Ed.2d 397 (1990), we respectfully disagree

with the reasoning of that case.

6 Although American does not appear to urge this argument

on appeal, it was urged below. See R. Doc. 76 at 5-10. We address

this argument because it goes to our jurisdiction to hear this action.

9a

case’’—i.e., any claim “founded upon some incident of the

employment relation ... independent of . . . the collective

agreement’’—a “minor” dispute, preempted by the RLA.'

We disagree with American’s “omitted case” argu-

ment for three reasons. First, Burley, to the extent that

it can be read as holding that disputes not requiring CBA

interpretation can be “minor” for preemption purposes,*

appears to have been overruled by Conrail. The test

developed by Conrail for whether a dispute is “minor”

is limited to whether the dispute requires CBA interpre-

tation. Conrail, 491 U.S. at 303, 109 S.Ct. at 2480.

Second, it would not make sense to extend RLA pre-

emption to disputes that do not require CBA interpreta-

tion. As noted by Judge Posner of the Seventh Circuit,

arbitrators have no particular expertise in cases that do

not require CBA interpretation; thus “arbitration would

have no advantage over adjudication in [such a] case.”

Lancaster v. Norfolk & W. Ry., 773 F.2d 807, 816 (7th

7 The contention that “minor” disputes include those that do not

require CBA interpretation arguably finds support in the RLA’s

grant of jurisdiction to the arbitral board for “disputes .. . grow-

ing out of grievances, or out of the interpretation or application

of [CBAs].” 45 U.S.C.- §184 (emphasis added). However, we

believe that the “grievance” language is redundant. “Grievances”

have been defined as “‘controversies over the meaning of an existing

[CBA] in a particular fact situation, generally involving only one

employee.” Brotherhood of R.R. Trainmen v. Chicago River & Ind.

H.&., so0 U.S. 30, 33, 77 S.Ct. 635, 637, 1 L.Ed.2d 622 (1967);

see also Lancaster v. Norfolk & W. Ry., 773 F.2d 807, 814 (7th

Cir. 1985) (“A ‘grievance’ is a claim of violation of the [CBA]”’),

cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987).

Thus, we do not believe that the RLA itself contemplates two dis-

tinct types of ‘“‘minor” dispute.

8 Burley, which dealt with the powers of a collective bargaining

agent, did not purport to define “minor” disputes for purposes of

preemption. Conrail, which was decided forty-four vears after

Burley, noted that “[t]his Court has not articulated an explicit

standard for differentiating between major and minor disputes.”

491 U.S. at 302, 109 S.Ct. at 2479.

10a

Cir. 1985), cert. denied, 480 U.S. 945, 107 S.Ct. 1602,

94 L.Ed.2d 788 (1987).

Third, to hold that every case “founded upon some in-

cident of the employment relation” was a “minor” dis-

pute would undermine the ‘“major’/“minor” distinction.

Virtually every dispute between an employer and its em-

ployees, including many disputes that are clearly “major,”

can be said to be “founded upon some incident of the em-

ployment relation.” For example, it is clear that a dis-

pute arising out of an attempt to secure or change a

CBA is a “major” dispute. Conrail, 491 U.S. at 302,

109 S.Ct. at 2479; Burley, 325 U.S. at 723, 65 S.Ct. at

1289. However, such a dispute could also be characterized

as “founded upon some incident of the employment rela-

tion.” Thus, if such cases were considered “minor,” the

“major”’/“minor” distinction would collapse.

For these reasons, we hold that “minor” disputes, for

purposes of RLA preemption, are limited to those that

require CBA interpretation.” Because Davies’ Burk ac-

tien does not require CBA interpretation, it is not a

“minor” dispute, and accordingly it is nc* preempted from

judicial resolution.

At least three other circuits have held that a dispute

over an employer’s disciplinary action that is alleged to

result from the employer’s wish to interfere with union

activity would, if proven, not be “minor.” See Independ-

ent Union of Flight Attendants v. Pan American World

Airways, Inc., 789 F.2d 189, 142 (2d Cir. 1986) (per

curiam) (“federal judicial intervention [would be] war-

ranted... where it is clear that the employer’s conduct

has ‘been motivated by anti-union animus or... an at-

tempt to interfere with its employees’ choice of their col-

9We are aware of only one district court that has explicitly

held that a dispute can be preempted as an “incident of the em-

ployment relation” where it does not involve CBA interpretation.

See Majors v. U.S. Air, Inc., 525 F.Supp. 853, 857 (D. Md. 1981).

We respectfully disagree with Majors.

lla

lective bargaining representative.’”) (citation omitted) ;

Tello v. Soo Line R.R., 772 F.2d 458, 462 (8th Cir. 1985)

(same); Brotherhood of R.R. Trainmen v. Central of Ga.

Ry., 305 F.2d 605, 609 (5th Cir. 1962) (same).

In summary, we hold that Davies’ action is not “minor”

and therefore does not fall within the exclusive jurisdic-

tion of the arbitration board. Thus we have jurisdic-

tion to hear Davies’ action.

II. The Availability of Burk

The district court granted JNOV on two grounds

which American continues to urge on appeal. First, the

district court held that Oklahoma would not provide a

Burk remedy where alternative remedies are available.

Alternatively, the district court held that Oklahoma would

not provide a Burk remedy for employees who could be

discharged only for “just cause.” We reject both of these

conclusions.

A. The Availability of Alternative Remedies

The district court held that Oklahoma law does not

provide a remedy for discharge in violation of public

policy under Burk where the discharged employee has

another remedy available. Because Davies has a remedy

available under the RIA, the district court held that he

cannot maintain a suit under Burk.

Recently, the Oklahoma Supreme Court laid to rest

this question, which had divided federal courts in Okla-

homa. In Tate v. Browning-Ferris, 883 P.2d 1218 (1992),

the Court clearly held that a Burk action is available

notwithstanding the availability of other remedies. Jd.

at 1223.'° We therefore hold under Tate that Davies can

10 Tate acknowledged that a remedy under Burk might be pre-

cluded by other remedial legislation where the other remedies are

intended to be exclusive. Jd. at 1220, 1223. This is essentially

the doctrine of field preemption. Because neither of the parties

12a

maintain a Burk suit notwithstanding the availability of

other remedies.

B. Burk and “For Cause” Employees

Burk granted a tort remedy as a “public policy excep-

tion to the at-will termination rule.” 770 P.2d at 28. The

district court held that an employee who can be fired

only for “just cause” is not terminable “at will,” and

therefore cannot avail himself of Burk’s remedy. Be-

cause Davies could be terminated only for “just cause,”’

the district court held, he could not sue under Burk.

The argument to limit Burk to “at will” employees is

essentially a variant of the argument, addressed above,

that Burk is unavailable where a discharged employee has

an alternate remedy. Because Davies has a contractual

remedy under the “just cause” provision of the CBA,

American argues, Oklahoma would not grant him another

remedy in the form of a Burk suit. Rather, American

argues, Oklahoma intended Purk as a remedy only for

those who would otherwise have no protection against

discharge. This argument is belied by Tate, in which the

Oklahoma Supreme Court sanctioned a Burk remedy for

an employee who had federal and state statutory reme-

dies. 883 P.2d at 1223.

Burk’s concern was not with providing a remedy for

employees who otherwise would have none. Had this been

Burk’s concern, the Court presumably would have granted

a remedy to any “at will” employee who was terminated

in bad faith. However, the court refused to imply such

a restriction on discharge. See 770 P.2d at 27 (refusing

to read implied covenant of good faith into “at will” con-

tract). Rather, Burk was concerned that the contractual

relation between an employer and employee might not

raised a field preemption argument, and because such an argument

does not affect our jurisdiction over the subject matter of this

case, we do not address this exception to Tate.

13a

adequately protect “ ‘society’s interest in seeing its public

policies carried out.’”’ 770 P.2d at 28 (quoting Palmateer

v. International Harvester Co., 85 Ill. 2d 124, 52 Ill. Dec.

13, 15, 421 N.E.2d 876, 878 (1981)). This is why the

Court limited the remedy to employees discharged in

violation of “an established and _ well-defined public

policy.” See 770 P.2d at 29.

When an employer discharges an employee in violation

of such a public policy, society is equally aggrieved

whether the employee is “at will” or can be discharged

only for “just cause.” As explained by Palmateer, “par-

ties to a contract may not incorporate in it rights and

obligations which are clearly injurious to the public.”

52 [il. Dee. at 15, 421 N.E.2d at 878. Thus, whether the

contract purported to provide grounds for the discharge or

not, the contract could not provide a ground for discharge

which is contrary to clear public policy and it is those dis-

charges that trigger a Burk cause of action. Accordingly,

we believe that Oklahoma would permit a Burk action by

an employee who could be fired only for “just cause”

under his employment contract."

Our holding is supported by Vannerson v. Board of

Regents of the University of Oklahoma, 784 P.2d 1053

(Okla. 1989). In Vannerson, the Oklahoma Supreme

Court applied Burk without inquiry into whether the

plaintiff was an “at will’ employee. The plaintiff in

Vanerson appears to have had the benefit of a formal

grievance procedure which limited the defendant’s ability

to terminate him. Jd. at 1054. This is essentially the

same type of limitation as that in the contract between

11 Admittedly, the Oklahoma Supreme Court has characterized

Burk as an exception to the employment “at will” rule. See, e.g.,

Tate, 833 P.2d at 1223; Burk, 770 P.2d at 28. However, at other

places in those opinions, the Oklahoma Supreme Court states the

Burk rule more broadly. See, e.g., Tate, 833 P.2d at 1223; Burk,

770 P.2d at 29. Thus, we cannot say that the “at will’ language

in the opinions of the Oklahoma Supreme Court is dispositive.

l4a

Davies and American.'? Notwithstanding this limitation

on termination, Vannerson permitted the plaintiff’s Burk

suit. See id. at 1056 ‘(remanding for retrial of one

Burk claim where general’ verdict was based upon two

Burk claims, one of which did not state adequate public

policy ground).

In summary, given Tate’s rejection of the proposition

that Burk is intended to provide a remedy only for em-

ployees who otherwise would have none, the fact that

Burk’s reasoning applies with equal force to “at will”

and “for cause” employees, and Vannerson’s application

of Burk in a situation similar to that at bar, we believe

that Oklahoma would not limit Burk to “at will” employ-

ees. Thus, we hold that the district court erred in con-

cluding that Oklahoma would so limit Burk.

Because we hold that both of the grounds supporting

the district court’s grant of American’s motion for JNOV

are erroneous, we REVERSE that judgment and RE-

MAND for reinstatement of the jury verdict.

12 The contract between Davies and American set out both a

standard for discharge, “just cause,” and a procedure for ensuring

that the standard was satisfied in the event of a discharge. In

Vannerson, we know only that there was a grievance procedure

available in the event of a discharge. Although we do not know

what standard the employer in Vannerson had to satisfy, the exist-

ence of a grievance procedure suggests the existence of some stand-

ard that precluded the employer from firing the plaintiff arbitrarily:

We use the phrase “at will” to designate an employment relation

with no contractual restrictions on the grounds for termination—

i.e., a relation in which the employer can arbitrarily fire the em-

plovee. Davies would define “at will” more narrowly. According

to Davies, an employment relation is “at will” whenever there is

no contractual term specifying a temporal duration of employment

(e.g., one year). Under Davies’ definition, he might be “at will”

notwithstanding the “just cause” limitation in his contract. Because

we conclude that the Oklahoma Supreme Court would apply Burk

to relationships that are “at will” in the sense that we use it, we

do not address Davies’ suggested definition of “at will.”

Re ee are

15a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

Case No. 89-C-881-P

ScoTT DAVIES,

Plainti

VS. aint,

AMERICAN AIRLINES, INC., a Delaware corporation,

Defendant.

JUDGMENT NOTWITHSTANDING THE VERDICT

Upon Motion of the Defendant, American Airlines,

Inc., for Judgment Notwithstanding the Verdict, pur-

suant to Rule 50(b), Federal Rules of Civil Procedure,

this Court hereby grants the Defendant’s Motion. IT

IS HEREBY ORDERED that judgment be entered for

the Defendant, American Airlines, Inc.

IT IS SO ORDERED.

DATED this 28 day of September, 1990.

/s/ Layn R. Phillips

LAYN R. PHILLIPS,

United States District Judge

APPROVED AS TO FORM:

/s/ Joe White

JOE WHITE

Attorney for Plaintiff,

Seott Davies

/s/ Reuben Davis

REUBEN DAVIS

KIMBERLY A. LAMBERT

Attorney for Defendant,

American Airlines, Inc.

16a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

No. CIV-89-C-881-P

SCOTT DAVIES,

Plaintiff,

VS.

AMERICAN AIRLINES, INC.,

Defendant.

ORDER GRANTING DEFENDANT’S MOTION

FOR JUDGMENT NOTWITHSTANDING

THE VERDICT

[Filed Sep. 28, 1990]

At issue is American Airlines, Ine.’s (‘“American’’)

motion for judgment notwithstanding the verdict. For

the reasons set forth below, the Court GRANTS defend-

ant’s motion.

The Court may grant a judgment notwithstanding the

verdict when “the evidence points but one way and is

susceptible to no reasonable inferences supporting the

party for whom the jury found.” Royal College Shop,

inc., vs. Northern Ins. Co. of N.Y., 895 F.2d 670, 677

(10th Cir. 1990). The evidence and inferences must be

construed most favorably to the nonmoving party. 7d.

The Supreme Court has essentially equated this standard

with the “genuine issue” requirement in the summary

judgment context, including the principle that the Court’s

inquiry must be guided by the subsidiary evidentiary

standards that apply to the case. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52, 254-55 (1986).

font ©

17a

In this action plaintiff alleged he was wrongfully dis-

charged by defendant because of his union organizing

activities. Initially he asserted two claims, one under the

Railway Labor Act (“RLA”), 45 U.S.C. § 151 ef seq.,

and one under Burk ». K-Mart Corp., 770 P.2d 24 (Okla.

1989) (recognizing a new tort cause of action for wrong-

ful discharge in violation of public policy). On Apri! 2,

1990, the judge to whom this case was originally assigned

denied American’s motion to dismiss and alternative mo-

tion for summary judgment. In that Order the Court,

indulging all reasonable inferences in favor of plaintiff,

concluded plaintiff had successfully stated a claim for

violation of plaintiff's substantial rights and also for

violation of public policy (citing Burk), and further

concluded that plaintiff’s allegations, if proven, would

constitute more than a “minor dispute” under the RLA.

At the time this motion was ruled upon by the Court, it

was known that plaintiff was a union employee operat-

ing under the collective bargaining agreement in question.

The case was then transferred to the undersigned on

April 20, 1990.

On the eve of trial plaintiff amended his complaint

to withdraw his RLA claim, and proceeded to trial solely

on the Burk-type tort claim. The trial was held Sep-

tember 24 and 25, 1990, with the jury returning a ver-

dict in favor of plaintiff. Presently pending are (1) de-

fendant’s motion to dismiss the amended complaint, which

the Court took under advisement, (2) defendant's motion

for directed verdict at the close of all the evidence, which

the Court also took under advisement, and (3) defend-

ant’s motion for judgment notwithstanding the verdict.

The Court is now convinced it must grant defendant's

motion for judgment notwithstanding the verdict for two

reasons.

First, the evidence was undisputed that plaintiff was

an employee of defendant American, classified as an Air-

eraft Mechanic, a classification within the skilled labor

18a

craft at American. It was further undisputed that plain-

tiff was a member of the Transport Workers’ Union of

America, AFL-CIO, and his employment was governed

by the terms of a collective bargaining agreement.

Under the collective bargaining agreement employees

could only be discharged when reasons for the discharge

were provided in writing (Article 30) and upon just

cause (Article 28), with an elaborate grievance proce-

dure available for any employee who believed he or she

was treated unjustly (Article 31). Under such circum-

stances the Court finds plaintiff was not an “at-will em-

ployee.” An at-will employee is one whose employment is

of indefinite duration and who may be discharged “for

good cause, for no cause or even for cause morally wrong.”

Burk, 770 P.2d at 25. Since plaintiff could only be dis-

charged for “just cause,” he was not an at-will em-

ployee. Since he was not an at-will employee, he does not

fall within the provisions of Burk. Burk created a new

tort cause of action for the discharge of an at-will em-

ployee in violation of public policy. Specifically, Burk

“adoptied] ... the public policy exception to the at-will

termination rule” and created a new tort cause of action

for the “termination of an at-will employee in contraven-

tion of a clear mandate of public policy.” Jd. at 28 (em-

phasis added}. Since plaintiff was not an at-will em-

ployee, he is not entitled to bring a Burk-type tort cause

of action.

Second, the Court concludes that even if plaintiff did

fall within the provisions of Burk, his public policy-based

tort cause of action would be preempted by the existence

of a remedy under the Railway Labor Act, 45 U.S.C.

§ 151 et. seq. The Court is aware of a split of authority

on this issue among the federal judges sitting in Okla-

homa. Compare Paynter v. American Legion Children’s

Home Corp., Nos. CIV-88-166-W and CIV-88-2053-W

(W.D. Okla. Oct. 11, 1989) and Webster v. Avis Rent-A-

Car Systems, Inc., No. 87-C-718-B (N.D. Okla. May 4,

19a

1989) (holding no preemption exists) with Zimmer v.

Rockwell Int'l Corp., No. 89-C-476-C (N.D. Okla. Apr. 2,

1990); Vogle v. Dillard Department Stores, Inc., CIV-

89-1262-R (W.D. Okla. June 1, 1990); Weiss v. Diversey

Wyandotte Corp., No. CIV-89-1991-A (W.D. Okla. Dee.

21, 1989); Wilson v. O.J. Brockway Glass, Inc., No. 89-

91-C (E.D. Okla. Nov. 9, 1989) ; and Patterson v. Hudcon

Farms, Inc., No. 88-C-273-E (N.D. Okla. Mar. 1, 1989)

(holding preemption exists). This issue has also been cer-

tified to the Oklahoma Supreme Court for determination.

Tate v. Browning Ferris, Inc., No. CIV-89-806-T (W.D.

Okla. Jan. 24, 1990).

The decisions cited above contain a thorough analysis

of the preemption issue and this Court finds it unneces-

sary to repeat the discussion here. The Court, however,

joins in those decisions in now finding that any public

policy-based tort cause of action which plaintiff may have

been entitled to raise under Burk is preempted by the

existence of a remedy-under the RLA.

Accordingly, defendant American’s motion for judg-

ment notwithstanding the verdict is GRANTED, and

JUDGMENT is hereby entered in favor of defendant

American Airlines, Inc. for the reasons set forth in this

Order and for the reasons announced on the record on

September 28, 1990, which reasons are incorporated by

reference..

IT IS SO ORDERED this 28th day of September,

1990.

/s/ Layn R. Phillips

LAYN R. PHILLIPS

United States District Judge

20a

APPENDIX C

TULSA AREA BOARD OF ADJUSTMENT

Case No. M-427-89 TULE

AMERICAN AIRLINES, INC.

and

TRANSPORT WORKERS UNION, LOCAL 514

Scott DAVIES: TERMINATION

WILLIAM EATON

Neutral Referee

KENNETH WILLIS

Company Member

JIM Cook

Union Member

APPEARANCES:

For the Union

MARION FINLEY

Vice President

Transport Workers Union, Local 514

Air Transport Division, AFL-CIO

11929 East Pine Street

Tulsa, Oklahoma 74116

= —r—=CS~S*:‘i‘i‘“OSOSCOCOCOCOCO

2la

For the Company

MICHAEL F’, COSTELLO

Manager, Employee Relations

American Airlines, Inc.

Maintenance & Engineering Center

Tulsa, Oklahoma 74151

ISSUE AND EVIDENCE

The question before the Board of Adjustment is whether

Grievant Scott Davies was discharged for just cause un-

der the Agreement between the parties, and if not what

the remedy shall be. Hearing was held in Tulsa Okla-

homa on January 16 1990. At that time the Grievant

was fully and fairly represented by the Union, was pres-

ent throughout the hearing, and testified in his own be-

half. Following presentation of evidence by both parties,

the matter was submitted to the Board of Adjustment for

final and binding determination upon oral argument at

the close of the hearing, and was decided by the Board

meeting in Executive Session directly thereafter, pending

preparation of the Referee’s Opinion.

The Grievant, an Aircraft Maintenance Mechanic as-

signed to the Tulsa Maintenance and Engineering Base,

is a member of the Organizing Committee of the Airline

Mechanics Fraternal Association (AMFA), which during

the period in question was seeking to obtain a representa-

tion election for Mechanics and other crafts now repre-

sented by TWU at the Tulsa base. In this capacity he

placed an ad in the Tulsa World newspaper which ulti-

mately led to the Company’s issuing him a Career De-

cision Day Advisory, followed by a Final Advisory. The

Career Decision Day Advisory, the accompanying Letter

of Commitment, the ad in question, and the Final Ad-

visory reads as follows.

22a

October 19, 1989

TO: Scott Davies 88900 Mechanic

Name Emp # Classification

RE: “Career Decision Day” Advisory

On Friday, October 13, 1989, the attached advertisement

was published in the Tulsa World newspaper. An in-

vestigation of this incident revealed that you placed this

notice on October 9, 1989. Moreover, you admitted that

you were solely responsible for the format of this notice,

and that you did not request permission from anyone at

AMR Corporation to use the name “American Airlines”

as the heading for this notice.

Your actions as stated above fall far short of those

which can reasonably be expected of an American Air-

lines employee, and are also in violation of American

Airlines Rules and Regulations #21 and #24, which

state:

Rule #21—“‘Do not make false or slanderous state-

ments about the Company, its employees or

patrons.”

Rule #24—“Consider the welfare of the Company and

your fellow employees. Perform no act

which is detrimental to either.”

In view of the extremely serious nature of the above in-

fraction, you will be given a “Career Decision Day Off”,

with pay, to review and select one of the following

options:

Option 1: Sign a “Letter of Commitment” agreeing

to comply with all Company Rules and Reg-

ulations, inclusive of both satisfactory work

performance and personal conduct.

Option2: Sign an agreement not to exercise your

grievance rights and in turn, the Company

23a

will accept your resignation with the fol-

lowing transition benefits:

(A) Health Insurance benefits will remain

in effect for 90 days after date of

resignation with premium paid by the

Company.

(B) One-way return home pass will be

available for you and eligible family

members.

(C) Outplacement counseling by appropri-

ate Personnel Office.

(D) Payment of $500. by the Company of

documented employment agency fee

for other employment.

Option 3: Termination of employment with the option

to grieve.

I urge you to carefully consider each option and be pre-

pared to advise me of your selection upon your return

back from your “Career Decision Day Off”. Additionally,

if you choose Option 1, you must sign and date the at-

tached “Letter of Commitment”.

/s/ |Mllegible]

Supervisor

200/7885

Station/Branch

ec: Personnel File

Employee Relations

“ Personally handed to employee

— Mailed to employee

10-19-89

Date /s/ [Illegible]

By:

advisory /28

24a

October 20, 1989

TO: Scott Davies 88900 Mechanic

Name Emp # ' Classification

RE: Final Advisory

On October 20, 1989, you returned from a “Career De-

cision Day” granted to you under the procedures of the

Peak Performance Through Commitment Program.

You have failed to select any option indicated on your

“Career Decision Day” Advisory, and by default have

therefore selected Option #3.

You are hereby terminated from employment with Amer-

ican Airlines effective October 20, 1989.

All Company property, including (but not limited to) AA

identification cards/badges of any kind and keys assigned

to you are to be returned to me and are not to be used

for any purpose after the date of this letter. Any pay due

you will be paid upon surrender of all Company property.

Please contact me about any questions or other matters

regarding benefits, credit union, etc., which you may have.

/s/ [Illegible]

Supervisor

“ Personally handed to employee

— Mailed to employee

10-20-83 /s/ (Illegible]

Date By:

ee: Personnel File

Employee Relations

advisory /33

, nee 1

25a

LETTER OF COMMITMENT

In consideration for my continued employment with

American Airlines, I agree that I will immediately correct

my performance problem by complying with all Company

Rules and Regulations, as well as maintaining a satis-

factory work performance record in all respects. More-

over, I understand that if I do not correct my performance

problem, I will be discharged without further warning.

I agree that this Letter of Commitment shall be final and

binding and that my decision is irrevocable and shall not

be the basis of any grievance or claim of any kind against

the Company.

I HAVE CAREFULLY READ AND UNDERSTAND

ALL OF THE ABOVE.

Employee’s Signature Date

TULSA WORLD ADVERTISEMENT

AMERICAN AIRLINES

Attention All Skilled Labor: Mechanics, Machinists, Fuel-

ers, A/C Cleaners (Exterior & Parts), Blast Operator,

Auto Mechanics, Carpenter & Building Maintenance.

A FORMAL DEBATE BETWEEN

—Mr. Ed Wilson, Local 514 of T.W.U.

Mr. O.V. Delle Femine of A.M.F.A.

MEDIATOR:—Oaland Jeffers of Channel 23 KOKL

PLACE:—Mingo Elementary School Gymnasium

TIME: Saturday, October 14th at 12:00 P.M.

Spouses are formally invited to attend

26a

Company Neutrality Policy

Company Labor Relations Representative Dennis Quish

testified that the ad as run in the Tulsa World violated

the Company’s policy of strict neutrality in regard to

inter-union or intra-union disputes. The ad, in the opinion

of the Company. given the bold face AMERICAN AIR-

LINES heading, implied that the debate referred to

between AMFA and TWU was being sponsored by the

Company. Thus, to the Company, the ad was false, in

violation of Rule 21, in leaving the impression that the

Company was involved, when it was not. The welfare

of the Company was damaged by this impression, in vio-

lation of Rule 24, in the view of the Company.

The Company agreed that there was no evidence that

any particular passenger had elected not to fly American

Airlines because of the ad, stating that it had made

no effort to search out or iocate any such person for the

reason that it chose not to take any action to publicize

such a matter as this.

American Airline Regulation 15-3 B provides that pub-

lic statements by officers or employees “identified with

AA must have advance clearance from the Corporate

Communications Department,” that all such statements

must be in “good taste,” and that “negative statements or

implications that might reflect unfavorably on our cus-

tomers, our employees, our competitors, the community we

serve, or the government officials with which we deal”

must be avoided.

27a

In regard to AMFA efforts to obtain a representation

election, the Company posted a bulletin dated July 25

1989 pointing out that American Airlines had “consist-

ently prohibited union politicking, electioneering, etc. on

Company premises,” and that such a policy “is necessary

because the Company wishes to remain neutral regarding

any inter/intra union activities.” The bulletin pointed out

that the “current activity concerning AMFA is no excep-

tion” adding, “it is extremely important that everyone in

management maintain a neutral position.”

The Grievant testified that it was he who placed the

Tulsa World ad and that he paid for it with a check from

the Organizing Committee. The intent, he stated, was to

announce the debate, to arouse interest, and to obtain

signatures for the yellow representation cards required

in order to obtain an election. He insisted, however, that

the phrase “AMERICAN AIRLINES” was meant to refer

to all airlines in America, not simply to American Air-

lines, Inc., or to the Tulsa base. He insisted that he had

no intent to harm the Company in placing the ad.

A notice advertising the same debate was placed in the

Owasso Reporter on October 12 1989. That ad was headed

“DEBATE,” was attributed to the AMFA-TUL Organiz-

ing Committee, and in the text of the ad invited all

“American Airlines Skilled Labor” to the debate. In the

opinion of Labor Relations representative Quish, the

Owasso ad was not objectionable for the reason that it

was attributed to the AMFA Organizing Committee, and

was simply addressed to American Airlines employees in

the text of the material, thus creating no impression that

it was a Company-sponsored event. A similar ad had been

placed in the Owasso Reporter in July.

When the Grievant was asked whether the placement of

ads in the Owasso Reporter did not indicate that the ma-

terial was aimed specifically at American Airlines em-

ployees, not at employees of all airlines in America, his

reply was, “It could mean either.”

a

28a

Mechanic Alan Jackson, who identified himself as an-

other member of the AMFA Organizing Committee, testi-

fied that no one had advised the Committee that the use

of the American Airlines heading was contrary to Com-

pany policy, admitting on cross-examination that no per-

mission had been given .either. He testified that the

Committee had discussed using the AMERICAN AIR-

LINES heading in order to notify American Airlines

people “in our class and craft,” and that there had been

no intent to harm American Airlines. He reiterated the

view of the Grievant that the heading was intended to be

addressed to employees of all airlines in America.

29(f) Hearings

Following the appearance of the contested ad, a 29(f)

hearing was held by Labor Relations Manager, Mike

Costello on October 16 1989, including Company repre-

sentatives, the Grievant, and a Union representative. At

that meeting, according to Labor Relations representative

Quish, who attended, Manager Costello explained at some

length to the Grievant the way the Company perceives the

ad, and its belief that such an ad detracts from the image

which the Compnany wishes to present to the public, and

upon which it spends many millions of dollars a year in

public relations and publicity. Quish stated that the

Grievant was entirely cooperative at this meeting, that

he took full responsibility for placing the ad, but that he

did refuse to identify others who might have also been

responsible, explaining that he refused to identify others

for the reason that he did not want “to drag anyone else”

into the 29(f) meeting.

The Grievant agreed that the AMERICAN AIRLINES

heading had been used “to draw attention” to the ad,

and that even if one passenger were induced not to fly

American as a result that would be an adverse effect on

the Company. He admitted that no permission had been

sought to use the heading as placed in the ad, saying that

29a

he knew the Company’s Rules and Regulations, including

the Company’s position on neutrality in inter-union dis-

putes. He said that he had no intent to involve the Com-

pany, stating that if he had known the Company would

be so upset at the ad he would have done it differently.

Nevertheless, he asserted that he had done nothing wrong.

Testifying before the Board of Adjustment, the Grievant

maintained that he had not been aware of the Company’s

policy concerning inter-union disputes prior to the 29(f)

meeting.

At the close of the 29(f) meeting the Grievant was held

out of service with pay for two days pending further

Company investigation. In the interim, according to Quish,

it was determined that if the Grievant conceded that he

had been in error in placing the ad, and if he was willing

to correct his behavior in the future, a Second Step Ad-

visory would be the extent of the penalty assessed. The

29(f) hearing was reconvened on October 18, this time

conducted by Labor Relations Representative Quish. Ac-

cording to Quish, the demeanor of the Grievant was

entirely changed from that of the preceding hearing, he

Was “not the same individual,” and he appeared to have

been “coached” in his answers.

It was at this hearing that the Grievant first contended

that the AMERICAN AIRLINES heading was not meant

to indicate American Airlines, Inc., but all the airlines in

America. Asked whether he would agree not to use

American Airlines’ name again in a smilar manner, the

Grievant would only state that he would not use the same

“format” again. At the arbitration hearing, when asked

whether he had agreed not to the use the American Air-

lines name in such a manner again, the Grievant replied

“In not so few words.” He explained that the reference

to American Airlines emplovees in the Owasso ad had not

been objectionable, and that this is what he had in mind

in saying that he would not use the same “format” again.

30a

Quish testified that he repeatedly attempted to get the

Grievant simply to agree not to use American Airlines in

future ads, that the Grievant would again reply with the

“format” answer, that he appeared to be “playing word

games,” and that the meeting was adjourned on that basis.

The Grievant was suspended for an additional day with

pay so that the Company could consider the matter

further.

The 29(f) hearing was convened for a third time on

the following day, October 19, again conducted by Man-

ager Costello. Costello explained in great detail what the

Company’s position was in regard to the apparent attribu-

tion of the ad to the Company, and described the Com-

pany’s Peak Performance Through Commitment (PPC)

policy as well. The Grievant continued to insist that he

had done nothing wrong, and would say nothing more than

that he would not use the same “format” again. In addi-

tion, he cited the Railway Labor Act, and for the first

time contended that the Company was interfering with

AMFA organizing activities.

The Grievant agrees that the PPC program was ex-

plained to him, at least in a general way, and that the

Career Decision Day options were also outlined. including

the fact that if he failed to elect one of the three options

he would be terminated.

The Company at this point elected not to issue a Second

Step Advisory, but to move directly to the Career Decision

Day Advisory for the reason that the Grievant would not

concede that he had been wrong in placing the ad as he

did, and that he would not commit himself to desist from

similar action in the future.

Following his Career Decision Day the final session of

the 29(f) hearing was convened on October 20 1989. At

that time the Grievant refused to elect any of the three

options, the meeting was adjourned briefly, the Final

3la

Advisory terminating him was prepared, and it was then

presented to him.

The Grievant maintained before the Board of Adjust-

ment that he refused to sign any of the options on the

Career Decision Day letter for the reason that that would

constitute an admission of guilt, and he was not guilty of

any wrongdoing. He also stated his fear that signing an

option would sign away his contractual right to grieve,

that after that “anyone could say anything,” and that he

would be discharged with no rights left. He agreed, how-

ever, that no one had ever told him that if he signed his

Career Decision Day commitment he could be fired without

the right to grieve.

Company Policy

The Company’s PPC policy, as explained to the Griev-

ant, is a flexible policy designed to resolve employee

violations or work deficiencies rather than necessarily to

assess discipline upon such occurrences. Some infractions,

such as theft, justify termination upon a first offense,

despite an employee’s prior record.

The first application of the PPC policy is normally by

the First Line Supervisor. This may result in nothing

more than a discussion, without the involvement of Labor

Relations, and often, according to Company testimony, in

a resolution of the problem at that level. Even if a more

formal meeting is required, and that meeting appears to

have achieved the object of correcting the deficiency, the

matter may be dropped at that point. As Labor Relations

tepresentative Quish pointed out, terminating an employee

is a Joss to the Company, particularly as in the ease of the

Grievant, where the employee is a licensed Mechanic,

which is a skill not easy to locate on the job market.

The Company entered into evidence two examples of

what it considers would be typical applications of the

PPC policy, even though these particular examples oc-

32a

curred either before the PPC policy was formally adopted

or at approximately the same time. These incidents con-

cerned the “Atlanta Ten” and the “Dallas Twenty.”

In the Atlanta cases arising in 1983, the President and

other members of TWU Local 513 had appeared with

“sandwich type” signs at Heartsfield International Air-

port in Atlanta stating that American Airlines had “no

licensed, qualified Mechanics making pre-departure in-

spections.”” The ten had been discharged as a result, but

were reinstated without back pay in a general settlement

of the dispute between the Union and the Company. As a

part of the settlement, the local 513 President stated: “I

have come to realize that our actions were unwarranted

and regret the problems they have caused.”

The Dallas case involved twenty Fight Attendants pass-

ing out handbills at DFW which also questioned the com-

mitment of the Company to safety, and to its fairness in

dealing with employees. These employees were also re-

instated after lengthy negotiations, and upon certain con-

ditions not relevant to the present dispute.

In presenting these cases, it was the Company’s stated

intention to indicate its flexibility in handling employee

disputes, as incorporated into the Peak Performance

Through Commitment Policy, which it contends was ap-

plied in the case of the present Grievant.

ARGUMENTS

Company

After hearing the Grievant’s testimony, the Board of

Adjustment may share the frustration of the Company in

its inability to get information on the event. Neither

Union witness was cooperative, but appeared to be coached

and had chosen their words very carefully in testifying

before the Board. This is contrary to the Grievant’s open

and cooperative attitude at the first 29(f) hearing.

5 nian aetna

33a

The Grievant offers the ridiculous notion that, in using

the AMERICAN AIRLINES heading, he did not mean

his company, but meant to address the ad to all airlines

in America. It is obvious that he meant to address the

ad to American Airlines employees in Tulsa, and to no

one else.

He admits that he knew the Company wanted nothing

to do with the intra-union dispute between AMFA and

| TWU. He knew that before he placed the ad, and he

| placed it anyway. In contrast to the Owasso Reporter

ad, which simply addressed American Airlines employees

in the text, and which was clearly attributed to the AMFA

Organizing Committee, the ad in dispute, while giving

the appearance of being sponsored by American Airlines,

contained no attribution indicating that it had been placed

by AMFA.

The Company spends millions of dollars to maintain its

number one status in size, quality, and innovation, and to

set it apart from other airlines in the industry. In the

Tulsa area the ad as placed by the Grievant suggests labor

strife, and may well cause some potential patrons to use

alternate carriers. The Company did not go out of its

way to find out if this was so, because it chooses not to air

its “dirty laundry” in that fashion. Prior Boards of Ad-

justment have recognized that the Company does not have

any obligation to seek out members of the public in such

circumstances.

There are several layers of potential harm in what the

Grievant did. First, passengers may not choose to fly

American Airlines. Secondly, members of other unions,

particularly TWU members, may believe that the Com-

pany is sponsoring the ad, and thereby soliciting a rival

union on the property. Finally, employees on the floor,

seeing the ad in a newspaper of some 200,000 circulation

in the Tulsa area, may be led to believe that the Company

is attempting to incite union rivalries.

34a

The Company was unable to locate any prior System

Board cases directly on point. The “Atlanta Ten” and the

“Dallas Twenty” are the closest approximations, and those

cases indicate that, when employees who have violated

Company rules recognize that they have done so, and

commit themselves to correct their behavior, the Com-

pany’s policy is flexible, and the Company is willing to

recognize when the problem has been resolved.

No admission of guilt, and no resolution, was reached

in the present dispute, even though the PPC program

was explained to the Grievant, and he was presented with

the clear Career Decision Day Advisory, which was care-

fully explained to him.

Where such actions have been taken against the Com-

pany’s interest, and contrary to known Company policy,

a stringent penalty must apply. To allow Company em-

plovees to go out and use the Company name as they see

fit would lead to disastrous consequences.

The Grievant having failed to recognize his wrongdoing,

or to commit to correct his behavior, discharge is the only

alternative open to the Company. For these reasons it is

respectfully requested that the Company’s action be sus-

tained and the grievance denied in its entirety.

Union

The Atlanta and Dallas cases cited by the Company are

different from today’s case for the reason that in those

cases the employees involved had an intent to damage the

Company. The present Grievant had no such intent, and

there is no evidence that the Company was damaged in

any way.

The Grievant is an employee of some five and one-half

years seniority with an excellent record, and is a good

worker. He was simply working with a group trying to

organize the mechanics of American Airlines, and had no

35a

intent to harm the Company in placing the contested ad in

the Tulsa World. That was not the first such ad to appear

in a local newspaper, and the Company has not objected

to other ads of a similar nature.

The Company admits that at the time of contract nego-

tiations both Union representatives and Union members

give statements to the media, and that this is a common

practice. The case here is unique, and there are no prior

System Board decisions pro or con regarding such incident.

The ad in the Tulsa World does not say that American

Airlines supports AMFA, while the Union witnesses main-

tain that they were simply addressing the ad to all

mechanics in the area, no matter who they worked for.

Elkouri and Elkouri, How Arbitration Works, in their

4th Edition (p 657), point out that discipline for conduct

away from the plant may not normally be assessed unless

that conduct is such as to harm the Company, its reputa-

tion, or its product. No such harm has been demonstrated

in the present dispute. Moreover, the Employer has the

burden of proving just cause in a discharge case, a burden

which has not been met in this dispute.

The message here is that once a Career Decision Day

letter has been issued, the employee has no choice but to

find other employment for the reason that if he signs the

letter he can thereafter be fired without any chance in

arbitration. -

Unlike the case of the “Atlanta Ten” or the “Dallas

Twenty” where leaflets or other information alleged Com-

pany safety problems, and where the attempt clearly was

to harm the Company, there is no such evidence in the

present dispute.

For these reasons the Union asks that the Grievant be

put back to work with no loss of benefits, and be made

whole in all respects.

36a

ANALYSIS

The first consideration is to examine the nature of the

ad itself. Two words, the bold faced captioned words

“AMERICAN AIRLINES,” clearly dominate the message

of the ad. The debate announced is between the President

of TWU local 514 and a representative of AMFA. Local

514 represents Mechanics and other employees at the

American Airlines Maintenance and Engineering base in

Tulsa, employees AMFA is attempting to organize. Re-

lated ads appeared in the Owasso Reporter specifically

directed, in their text, to “All American Airlines Skilled

Labor.”’ Owasso is a locality adjacent to Tulsa in which

a great many of the thousands of employees at American

Airlines reside.

The Grievant contends that he meant no harm to the

Company in using the AMERICAN AIRLINES heading

on his ad. Perhaps not initially. However, after the

Company patiently and repeatedly explained to him its

view that great harm can result through such unauthorized

identification of the Company with intra-union disputes,

the Grievant reverted to the explanation that the words

AMERICAN AIRLINES did not refer to the present

Company, but to all airlines in America. The absurdity

of this explanation in the present context is such as to

require no further comment.

The Grievant maintained throughout four sessions of

the 29(f) meeting, and in his testimony before the Board

of Adjustment, that he has done no wrong. Presented with

the Career Decision Day letter, he refused to elect any of

the options, or to commit himself to desist from unauthor-

ized use of the Company name, as he had refused to do in

the 29(f) sessions. While there is a patina of legitimacy

of the Grievant’s stated concern that signing the Letter

of Commitment as written might deprive him of con-

tractual grievance rights, in the entirety of this dispute

the Board agrees with the Company’s conclusion that the

Grievant is “playing word games,” and not making a

37a

good faith attempt to meet the Company’s objections, or

to correct his behavior.

The parties have presented a number of prior arbitra-

tion decisions, both from American Airlines Boards of

Adjustment and from industry generally, to assist in

evaluating this dispute. Some of these cases simpiy state

truisms about which there is no dispute, such as the

requirement that the Company bear the burden of prov-

ing just cause in discharge cases by a preponderance of

the evidence, or that a well reasoned decision by manage-

ment, taken in good faith, as to what the penalty for an

infraction should be ought not, in most circumstances, to

be disturbed.

The Union offers Case No. M-577-75 TULE to illustrate

a circumstance in which the-Company had failed to show

that the grievant had been definitely put on notice that

the infraction cited (consumption of a meal from a termi-

nated flight) would be considered theft and a ground for

discharge. That case might serve the present Grievant’s

cause had he been initially presented with the Final Ad-

visory without further investigation or clarification of the

Company’s policy herein. However, even after the Com-

pany’s policy was carefully and repeatedly explained to

him, this Grievant still maintained that he had done noth-

ing wrong, and refused to commit himself to any correc-

tion of his behavior.

The Union also cites Case No. M-301-77 PHX by the

present Chairman, indicating that where there is no show-

ing of wrongful intent a penalty of discharge may be

reversed. But again, in the present dispute it is not the

Grievant’s original intent, whatever that may have been,

which is controlling. Rather, it is his persistent refusal

to recognize an infraction, -or to correct his behavior, even

- after his erro: had been patiently explained to him.

The Company offers Case No. SS-201-75 BOS, in which

a Flight Attendant’s discharge for selling t-shirts aboard

38a

an aircraft bearing inscriptions damaging to the Com-

pany’s image was upheld. Similarly, in Case No. M-542-76

TULE, a ten day suspension against a Building Cleaner

for having made adverse comments against the Company

while traveling as a non-revenue from DFW to TULE

was upheld.

Case No. 167-87 ORD dealt with the application of the

PPC program. In that case Referee Mark L. Kahn

endorsed the Company’s option to skip the first two

Advisories, and to move directly to a Career Decision

Advisory, when circumstances warrant. He pointed out,

at the same time, that employees are entitled to grieve the

merits of any application of the PPC, “including a dis-

charge subsequent to the signing of a Letter of Commit-

ment.” In that case the grievant had elected termination

with the option to grieve.

The case offering an opinion which is most relevant to

the facts of the present dispute is No. SS-36-66 DAL, in

which a Flight Attendant had allegedly offered passengers

on an aircraft in flight “dinner or Alka Seltzer,” explained

that “it was the crew’s first trip,” and that as a result

“they were practicing.” Referee Peter M. Kelliher found

that the Grievant did not correctly state the facts when

asked to do so after being advised of these charges, add-

ing that, “It may well be that the Company would not

have instituted discharge proceedings if she had made a

full and honest statement.” He found that the statements

made “did reflect upon the Company’s service,” and that

in the circumstances discharge was warranted. Similar

considerations govern the present dispute.

The Company herein considered the actions of the Griev-

ant over a period of an entire week, including four 29(f)

sessions with him. He was clearly apprised of the severe

consequences which can result from unauthorized use of

the Company name, particularly in regard to intra-union

disputes, and yet he remained recalcitrant in admitting

39a

error or in committing to desist from such action in the

future, and in offering a patently absurd excuse for what

he had done.

In such circumstances there is no basis upon which the

Board of Adjustment could justify reversal of the Com-

pany’s decision to discharge.

/s/ William Eaton

WILLIAM EATON

Neutral Referee

January 24, 1990

DECISION

Grievant Scott Davies was discharged for just cause,

s Kenneth Willis s/ Jim Cook Dissent

KENNETH WILLIS JIM Cook

Company Member Union Member

s/ William Eaton

WILLIAM EATON

Neutral Referee

January 24, 1990

40a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 90-5231

(Dist. Ct. No. 89-C-881-P )

ScoTT DAVIES,

Plaintiff-A ppellant,

V.

AMERICAN AIRLINES, INC., a Delaware corporation,

Defendant-A ppellee.

ORDER

Entered September 8, 1992

Before McKAY, LOGAN, SEYMOUR, MOORE, AN-

DERSON, TACHA, BALDOCK, BRORBY, EBEL and

KELLY, Circuit Judges, and ANDERSON %*, District

Judge.

This matter comes on for consideration of appellee’s

petition for rehearing and suggestion for rehearing en

bance.

Upon consideration whereof, the petition for rehearing

is denied by the panel that rendered the decision.

In accordance with Rule 35(b), Federal Rules of Ap-

pellate Procedure, the suggestion for rehearing en bane

was transmitted to all of the judges of the court who

* The Honorable Aldon J. Anderson, Senior District Judge of the

United States District Court for the District of Utah, sitting by

designation.

4ia

are in regular active service. No member of the panel

and no judge in regular active service on the court hav-

ing requested that the court be polled on rehearing en

bane, Rule 35, Federal Rules of Appellate Procedure,

the suggestion for rehearing en banc is denied.

Entered for the Court

ROBERT L. HOECKER

Clerk

By: /s/ Patrick Fisher

PATRICK FISHER

Chief Deputy Clerk

42a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 90-5231

(Dist. Ct. No. 89-C-881-P)

Scott DAVIEs,

-laintiff-A ppellant,

Vv.

AMERICAN AIRLINES, INC., a Delaware corporation,

Defendant-A ppellee.

ORDER

Filed October_1, 1992

Before ANDERSON and EBEL, Circuit Judges and

ANDERSON *, District Judge.

This matter comes on for consideration of appellee’s

motion for stay of mandate.

Upon consideration whereof, the motion is granted.

The mandate is stayed pending final disposition by the

Supreme Court of the United States.

Entered for the Court

s Robert L. Hoecker

ROBERT L. HOECKER

Clerk

The Honorable Aldon J. Anderson, Senior District Judge of

the United States District Court for the District of Utah, sitting by

designation,

\

43a

APPENDIX F

RELEVANT PROVISIONS OF AGREEMENT BE-

TWEEN AMERICAN AIRLINES AND TRANSPORT

WORKERS UNION OF AMERICA, AFL-CIO COVER-

ING AIRLINES MECHANIC, PLANT MAINTENANCE

AND GROUND SERVICE EMPLOYEES OF AMERI-

CAN AIRLINES, INC., EFFECTIVE MAY 5, 1989

ARTICLE 28—NO DISCRIMINATION, AND

RECOGNITION OF RIGHTS AND COMPLIANCE

(a) The Company and the Union agree to make it a

matter of record in this Agreement that in accordance

with the established policy of the Company and the

Union, the provisions of this Agreement will apply

equally to all employees hereunder regardless of sex,

color, race, creed or national origin.

(b) The Union recognizes that the Company shail have

sole jurisdiction of the management and operation of its

business, the direction of its working force, the right to

maintain discipline and efficiency in its hangars, stations,

shops or other places of employment, and the right of

the Company to hire, discipline and discharge employees

for just cause, subject to the provisions of this Agree-

ment. It is agreed that the rights enumerated above shall

not be deemed to exclude other preexisting rights of man-

agement not enumerated which do not conflict with other

provisions of this Agreement.

(c) Any decisions or agreements relating to the inter-

pretation or application of this Agreement made jointly

by the Company and the Union shall be binding on every

individual employee claiming or entitled to the benefits

of this Agreement.

(d) All letters of discipline (warning or suspension)

will be removed after a period of two (2) years from

date of issuance.

44a

ARTICLE 31—GRIEVANCE PROCEDURE

(a) An employee who believes that he has been un-

justly dealt with or that any provision of this Agree-

ment has not been properly applied or interpreted, or

against whom the Company has preferred charges, in

writing, may present his grievance in person or through

his representatives, within seven (7) calendar days to his

immediate supervisor, who shall evaluate the grievance

or complaint and render his decision as soon as possible,

but not later than seven (7) calendar days following

receipt of said grievance.

(b) If the decision of the immediate supervisor is not

satisfactory to the employee whose grievance is being

considered, it may be appealed within ten (10) calendar

days to the Chief Operating Officer, designated by the

Company, who shall fully investigate all of the facts

upon which said grievance is based and shall render a

decision thereon as soon as possible, but not later than

ten (10) calendar days following his receipt of the

appeal.

(c) If the decision of the designated Chief Operating

Officer is not satisfactory to the employee, the grievance

and the decision thereon may be appealed to the System

General Board of Adjustment, as provided for in Article

32 of this Agreement, provided, however, said appeal

must be submitted within twenty (20) calendar days of

receipt of the decision rendered by the designated Chief

Operating Officer.

-(d) All grievances handled under the procedure pro-

vided above shall be in writing and shall be signed by

the employee whose grievance is being handled, and all

decisions off Said grievance shall be in writing. In cases

in which ‘the aggrieved employee authorizes his repre-

sentative to handle his grievance for him, the submission

of the grievance or appeal shall be accompanied by a

statement signed by the employee fully authorizing his

45a

representative to act for him in the disposition of said

grievance. Two (2) copies of all grievance answers will

be submitted to the Local Union.

(e) An employee who has a grievance may present

said grievance to his immediate supervisor during regu-

lar work hours and an Accredited Representative of the

Union may investigate, discuss and present a grievance

of an employee or employees during regular work hours

without suffering loss of pay for time so spent.

(f) If any decision made by the Company under the

provisions of this Article is not appealed by the em-

ployee affected within the time limit prescribed herein

for such appeals, the decision of the Company shall be-

come final and binding.

.(g) If, as a result of a decision in any of the steps

of the grievance procedure as provided herein, an em-

ployee is exonerated, he shall, if he has been held out of

service, be reinstated without loss of seniority and shall

be paid at regular rates for time lost.

(h) When it is mutually agreed that a stenographic

report is to be taken of any hearing, in whole or in part,

the cost will be borne equally by both parties to the dis-

pute. When it is not mutually agreed that a_steno-

graphic report of the proceedings is to be taken, any

written record available of such hearing made by either

of the parties to the dispute shall be furnished to the

other party to the dispute upon request, provided that the

cost of such written record so requested shall be borne

equally by both parties to the dispute.

(i) Upon the request of an Accredited Union Repre-

sentative, the Company will inform the Union of its de-

cision on any grievance regarding which a formal hear-

ing or investigation has been held at which the aggrieved

employee was not represented by his Accredited Union

Representative.

16a

ARTICLE 32—BOARDS OF ADJUSTMENT

I. Boards of Adjustment

(a) Pursuant to the provisions of the Railway Labor

Act, as amended, there are hereby established (i) a Sys-

tem General Board of Adjustment, (ii) two System

Divisional Boards of Adjustment, and (ili) six Area

Boards of Adjustment.

(b) The Boards shall have jurisdiction only over dis-

putes between the Company and the Union or any em-

ployee or employees governed by this Agreement growing

out of grievances involving interpretation or application

of this Agreement. The Boards shall have no jurisdiction,

whatsoever, over proposals or disputes relating to general

changes in hours of work, rates of pay, rules or working

conditions. Proposals relating to general changes in hours

of work, rates of pay, rules or working conditions shall

be handled in the manner provided for in Article 46 of

this Agreement.

Il. System General Board of Adjustment

(a) The System General Board of Adjustment shall be

composed of a Company member, a Union member and a

neutral referee, the latter to serve for an indefinite term;

however, either party may cause the services of the

neutral referee to be terminated by giving written notice

to the other party and to the neutral referee.

(b) If a neutral vacancy occurs and the Company and

the Union cannot agree on a successor within fifteen (15)

days, the American Arbitration Association will be re-

quested to select a neutral in the manner described in Rule

12 of its Voluntary Labor Arbitration Rules, as in effect

on February 1, 1965.

(c) The Company member and the Union memberx of the

General Board shall serve as Chairman and Vice-Chair-

man, respectively, and shall exchange offices at the end of

each calendar year.

ee a ee

47a

(d) The General Board shall hear and determine all

disputes properly before it which are not within the juris-

diction of the Divisional or Area Boards pursuant to

paragraphs III. and IV. of this Article.

III. «System Divisional Boards of Adjustment

a) Each Divisional Board shall be composed of a Com-

pany member, a Union member and a neutral referee.

If the position of neutral referee of a Divisional Board

becomes vacant and the Company and the Union cannot

agree on a successor within fifteen (15) days, one shall

be selected in the same manner as the filling of a vacancy

under paragraph II.(b) of this Article.

(b) The jurisdiction of the Divisional Boards shall be

as follows:

(1) Divisional Board I shall have jurisdiction over

overtime and other rate-of-pay grievance cases.

(2) Divisional Board II shall have jurisdiction over

scope, work assignment and seniority grievance cases.

IV. Area Boards of Adjustment, Discipline and Dismissal

Cases

(a) Area Boards of Adjustment shall be maintained in

New York, Chicago, Los Angeles, Tulsa, San Francisco

and Dallas/Ft. Worth. The jurisdiction of each such

Board shall be limited to discipline and dismissal cases

arising in the area in question.

(b) Each Area Board shall be composed of one member

appointed by the Company, one member appointed by the

Union, and a neutral referee as Chairman. However, by

mutual agreement of the parties, an additional neutral

referee may be selected to hear Area Board cases scheduled

in cities other than those designated in the above para-

graph. Members of the Area Boards appointed by the

parties shall serve at the pleasure of the party making the

48a

appointment, except that a Board member shall continue

to serve until his successor has been appointed. Each

neutral referee shall serve for an indefinite term; either

party may cause the services of the neutral referee to be

terminated (except as to cases already submitted to him)

by giving written notice to the other party and to the

neutral referee.

(ec) If the position of neutral referee of an Area Board

becomes vacant and the Company and Union cannot agree

on a successor within fifteen (15) days, one shall be

selected in the same manner as the filling of a vacancy

under paragraph II.(b) of this Article.

(d) Each Area Board shall hold hearings at a location

in its city, off Company premises, to be determined by the

Area Board, except that another city may be designated

hy mutual agreement of the Union Local President and

the Employee Relations representative designated by the

Company.

V. Procedures Generally Applicable to the Boards

(a) The System General Board and the two System

Divisional Boards shall meet in the city where the general

offices of the Company are maintained (unless a different

place of meeting is agreed upon by the parties to the

dispute).

4

(b) The Company and Union shall at all times have

their respective Board members available at the conveni-

ence of the various neutral referees, and alternate mem-

bers shall be provided by the Company or Union, as the

case may be, whenever its regular Board member is not

available. If an alternative member is not provided within

a reasonable period of time, the neutral referee shall pro-

ceed with the hearing and decision of the matters before

the Board without participation by the absent member,

and the decision of the neutral referee shall constitute

the decision of the Board.

49a

(c) The Company or the Union may terminate the

services of a neutral referee at any time, except as to

cases already submitted to him, by giving written notice

to the other party and to the neutral referee.

(d) All disputes referable to the Boards shall be sent

to the Genera. Board and, based on the primary issue in

dispute, the Chairman and Vice Chairman shall jointly

refer the matter to the appropriate Board (General, Divi-

sional or Area Board) for hearing and decision. Any

disagreement as to which Board is the appropriate Board

shall be determined by the General Board.

(e) As to disputes before the General Board and Divi-

sional Boards, the Chairman and Vice Chairman of the

General Board shall set the hearing dates (providing

notice thereof to the parties). Each party will designate

a representative for each Area Board who jointly shall be

responsible for the scheduling of cases referred to the

Area Board they represent. Each party will supply to the

other, and keep current, a list of its designated representa-

tives for the Area Boards. The designated Company and

Union representatives of each Area Board shall set the

hearing dates for such Board (providing notice thereof to

the parties and to the Administrator—Boards of Adjust-

ment). All cases shall be set for hearing promptly in

order to keep the number of cases docketed to a minimum.

Unless the parties agree otherwise, the case with the low-

est docket number pending before a Board will be sched-

uled first; other cases pending before that Board arising

from the same station as the case with the lowest docket

number will be scheduled for hearing on that meeting of

the Board. In the event there are no such other cases, the

case with the next lowest docket number will be scheduled,

and the aforementioned scheduling procedure will be fol-

lowed until there are a sufficient number of cases sched-

uled to insure full days of hearing. Cases so scheduled but

not heard for lack of time will be rescheduled in accordance

with the above scheduling procedure.

50a

The parties recognize that as the scheduling of cases

takes place well in advance of dates of hearing, those cases

rescheduled due to lack of hearing time will be out of

numerical sequence with those already scheduled.

If the designated Company representative and the desig-

nated Union representative for any Board jointly consider

a case of sufficient urgency and importance to warrant an

expedited hearing, a hearing shall be scheduled within

fifteen (15) days of their request.

(f) A submission to a Board shall be in the form of a

petition stating:

(1) the name of the employee involved;

(2) a statement that the remedies provided by

Articles 29, 30 or Article 31, as the case may be, have

been exhausted;

(3) a statement of the nature of the dispute (in-

cluding question or questions at issue) and the basis

for the jurisdiction of the Board;

(4) the position or contention of the party filing

the petition.

(g) A petition shall be served upon the other party,

who shall have the right, within fifteen (15) days after

receipt to file a written answer.

(h) Five (5) copies of each petition and answer shall

be delivered to the office of the General Board, which shall

file the original and transmit one (1) copy thereof to each

member of the appropriate Board.

(i) Employees and the Company may be represented at

Board hearings by such person or persons as they may

choose and designate. Evidence may be presented either

orally or in writing or both.

(j) Upon the request of either party to the dispute, or

of two (2) Board members, a Board shall summon wit-

5la

nesses to testify at Board hearings. The number of wit-

nesses who are employed by the Company shall not be

greater than the number which can be spared without

interference with the service of the Company.

(k) Except as provided by paragraph V.(b) of this

Article, a majority vote of all members of a Board shall

be competent to make a finding or a decision with respect

to any dispute properly before it, and such finding or

decision shall be final and binding upon the parties to

such dispute.

(1) The failure of a Board to decide a dispute under the

procedure established herein shall not serve to foreclose

any subsequent rights or procedures which the Railway

Labor Act, as amended, may provide with respect to the

settlement of such disputes, and nothing herein shall be

construed to limit, restrict or abridge the rights or privi-

leges accorded to either the employees or to the employer,

or to their duly Accredited Representatives, by said Act.

(m) Board findings and decisions shall be stated in

writing and shall be rendered within thirty (30) days

from the close of hearing, unless such period is extended

by agreement of the parties to the dispute. In each case

a copy of the finding or decision shall be furnished the

Company, the Union and such employee or employees as

are parties to the dispute. Tf a dispute arises as to the

interpretation of the finding or decision, then, upon re-

quest of the Company, the Union or such employee or

employees as are parties to the dispute, the Board shall

interpret the iinding or decision.

(n) The System General Board and each Area Board

shall keep complete and accurate records of all matters

submitted to it and of all findings and decisions made. A

_Sstenographic record at all Boards will be taken if requested

by either party to the dispute. In such case, the -cost of

such record shall he borne by the requesting party. The

other party, upon request, will be furnished a copy of the

52a

record, in which case the cost of such record shall be

borne equally by both parties to the dispute.

(0) Each party will assume the compensation, travel

expenses and other expenses of the Board members selected

by it and of the witnesses called or summoned by it.

(p) So far as space is available, witnesses who are

employees of the Company shall receive free transporta-

tion over the lines of the Company from the point of duty

or assignment to the point at which they must appear as

witnesses and return, to the extent permitted by law.

(q) Each Board, upon agreement of a majority of its

members, shal] have the authority to incur expenses neces-

sary for the proper conduct of the business of the Board.

Such expenses, as well as the expense of each neutral

referee, shall be shared equally by the parties hereto.

Union Board members who are employees of the Com-

pany shall be granted necessary leaves of absence for the

performance of their duties as Board members. So far as

space is available, the Board members shall be furnished

free transportation over the lines of the Company for the

purpose of attending Board meetings to the extent per-

mitted by law.

(r) Every Board member shall be free to discharge his

duty in an independent manner. without fear that his

individual relations with the Company or with the em-

ployees hereunder may be affected in any manner by any

action taken by him in good faith in his capacity as a

Board member. Each party shall specifically instruct each

Board member selected that he shall at all times, while

serving in that capacity, act not as a partisan or advocate

of a partisan group or cause but shall act and serve solely

to render impartial findings and just decisions.

53a

APPENDIX B

CLASSIFICATION DESCRIPTION

TITLE I--AIRLINE MECHANIC

MECHANIC

SUMMARY

The work of the Mechanic classification, depending

upon assignment, in addition to the work specified for

the Junior Mechanic classification, includes any or all of

the following: Performing skilled work in those opera-

_tions such as trouble shooting, individually or with Crew

Chief, management or professional direction, disassembly,

checking and cleaning, repairing, replacing, testing, ad-

justing, assembling, installing, servicing, fabricating,

taxiing or towing airplanes and/or run-up engines, de-

icing aircraft, required to maintain the airworthiness of

aireraft and all their components while in service or

while undergoing overhaul and/or modification. Certifies

for quality of own workmanship, including signing

mechanical flight releases, except signs mechanical flight

release for all work done on field work. In those work

positions where stock chasers are not maintained and/or

available at the time may chase own parts. May have

other Mechanic personnel assigned to assist him in com-

pleting an assignment. Works according to FAA and

Company regulations and procedures and _ instructions

from Crew Chief or supervisor. Completes forms con-

nected with work assignments according to established

procedures and will communicate with other Company

personnel as required in a manner designated by the

Company.

In addition to the above duties, performs the following

duties as assigned: cleaning of aircraft windshields; con-

necting /removing ground power and ground start units;

pushing out towing of aircraft and related guideman

functions.

54a

APPENDIX G

RELEVANT PROVISIONS OF

AMERICAN AIRLINES

EMPLOYEE HANDBOOK

Section 3. Employee Policies

Peak Performance Through Commitment

Peak Performance Through Commitment (PPC), a

process designed to correct problems rather than

punish an individual for poor performance, demon-

strates American’s commitment to create a work-

place where each employee is treated with dignity

and respect. It is an action-oriented system intended

to recognize, reinforce and reward an employee’s

best efforts. PPC encourages employees and their

supervisors to work together as a team. However,

employees remain responsible for their work per-

formance and maintaining high standards.

PPC is a process of exchanging ideas and sharing

information—keeping the lines of communication

open. The dialogue between employees and super-

visors may be corrective or motivational. This posi-

tive system recognizes and rewards employees with

high performance and coaches and counsels em-

ployees with poor performance. When employees

with poor performance or inappropriate personal

conduct do not improve after coaching and counsél-

ing, the supervisor may initiate a series of advisory

sessions: -

° A first advisory session—when the employee

fails to respond to coaching and counseling.

* A second advisory session—when the employee

fails to respond to additional coaching and

counseling.

55a

° A “Career Decision Day’”—a day off with pay

when the employee is given a final opportun-

ity to commit to change. A letter of com-

mitment is given to the employee for review

at this time.

° A final advisory session—when the employee

fails to live up to the letter of commitment.

PPC is a proactive system intended to recognize,

reinforce, reward and improve all job performances.

Its success depends on our collective efforts.

Performance Appraisals

Appraisals are valuable opportunities for employees

to gain insight into how job performance is viewed

by the supervisors, how it can be improved and

how it can be used to prepare for future responsi-

bilities.

Performance evaluation and feedback systems exist

in various formats depending on the work group. In

all cases the purpose is t6 provide meaningful infor-

mation to allow employees to correct performance

deficiencies. The systems also encourage supervisors

to reinforce excellent job performance.

For additional information see AA REGS 130-1,

130-4, and 130-5.

September, 1990

56a

APPENDIX H

RELEVANT STATUTORY PROVISIONS

Section 301 of the Labor-Management Relations Act,

29 U.S.C. § 185

$185. Suits by and against labor organizations

(a) Venue, amount, and citizenship

Suits for violation of contracts between an employer

and a labor organization representing employees in an

industry affecting commerce as defined in this chapter,

or between any such labor organizations, may be brought

in any district court of the United States having juris-

diction of the parties, without respect to the amount in

controversy or without regard to the citizenship of the

parties.

(b) Responsibility for acts of agent; entity for purposes

of suit; enforcement of money judgments

Any labor organization which represents employees in

an industry affecting commerce as defined in this chap-

ter and any employer whose activities affect commerce

as defined in this chapter shall be bound by the acts of

its agents. Any such labor organization may sue or be

sued as an entity and in behalf of the employees whom

it represents in the courts of the United States. Any

money judgment against a labor organization in a dis-

trict court of the United States shall be enforceable only

against the organization as an entity and against its

assets, and shall not be enforceable against any indi-

vidual member or his assets.

(c) Jurisdiction

For the purposes of actions and proceedings by or

against labor organizations in the district courts of the

United States, district courts shall be deemed to have

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jurisdiction of a labor organization (1) in the district

in which such organization maintains its principal office,

or (2) in any district in which its duly authorized officers

or agents are engaged in representing or acting for em-

ployee members.

(d) Service of process

The service of summons, subpena, or other legal process

of any court of the United States upon an officer or

agent of a labor organization, in his capacity as such,

shall constitute service upon the labor organization.

(e) Determination of question of agency

For the purposes of this section, in determining

whether any person is acting as an “agent” of another

person so as to make such other person responsible for

his acts, the question of whether the specific acts per-

formed were actually authorized or subsequently ratified

shall not be controlling.

RAILWAY LABOR ACT

Section 2, 45 U.S.C. §$ 15la

$ 15la. General purposes

The purposes of the chapter are: (1) To avoid any

interruption to commerce or to the operation of any

carrier engaged therein; (2) to forbid any limitation

upon freedom of association among employees or any

denial, as a condition of employment or otherwise. of the

right of employees to join a labor organization: (3) to

provide for the complete independence of carriers and of

employees in the matter of self-organization to carry out

the purposes of this chapter; (4) to provide for the

prompt and orderly settlement of all disputes concerning

rates of pay, rules, or working conditions; (5) to provide

for the prompt and orderly settlement of all disputes

58a

growing out of grievances or out of the interpretation or

application of agreements covering rates of pay, rules, or

working conditions,

Section 2, 45 U.S.C. § 152

© 4°2. General duties

we

* * * *

Third. Designation of representatives

Representatives, for the purposes of this chapter, shall

be designated by the respective parties without interfer-

ence, influence, or coercion by either party over the cesig-

nation of representatives by the other; and neither party

shall in any way interfere with, influence, or coerce the

other in iis choice of representatives. Representatives of

employees for the purposes of this chapter need not be

persons in the employ of the carrier, and no carrier shall,

by interference, influence, or coercion seek in any man-

ner to-prevent the designation by its employes as their

representatives of those who or which are not employees

of the carrier.

Fourth. Organization and collective bargaining; free-

dom from interference by carrier; assistance

in organizing or maintaining organization by

earrier forbidden; deduction of dues from

wages forbidden

IXmployees shall have the right to organize and bar-

gain collectively through representatives of their own

choosing. The majority of any craft or class of employees

shall have the right to determine who shall be the repre-

sentative of the craft or class for the purposes of this

chapter. No carrier, its officers, or agents shall deny or

in any way question the right of its employecs to join,

organize, or assist in organizing the labor organization

of their choice, and it shal! be unlawful for any carrier

to interfere in any Way with the organization of its em-

ployees, or to use the funds of the carrier in maintaining

or assisting or contributing to any labor organization,

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labor representative, or other agency of collective bar-

gaining, or in performing any work therefor, or to influ-

ence or coerce employees in an effort to induce them to

join or remain or not to join or remain members of any

labor organization, or to deduct from the wages of em-

ployees any dues, fees, assessments, or other contribu-

tions payable to labor organzations, or to collect or io

assist in the collection of any such dues, fees, assess-

ments, or other contributions: Provided, That nothing

in this chapter shall be construed to prohibit a carrier

from permitting an employee, individually, or local rep-

resentatives of employees from conferring with manage-

ment during working hours without loss of time, or to

prohibit a carrier from furnishing free transportation to

its employees while engaged in the business of a labor

organization.

Ninth. Disputes as to identity of representatives: des-

ignation by Mediation Board; secret elections

If any dispute shall arise among a carrier’s employees

as to who are the representatives of such employees

designated and authorized in accordance with the require-

ments of this chapter, it shall be the duty of the Media-

tion Board, upon request of either party to the dispute,

to investigate such dispute and to certify to both parties,

in writing, within thirty days after the receipt of the

invocation of its services, the name or names of the in-

dividuals or organizations that have been designated

and authorized to represent the employees involved in

the dispute, and certify the same to the carrier. Upon

receipt of such certification the carrier shall treat with

the representative so certified as the representative of

the craft or class for the purposes of this chapter. In

such an investigation, the Mediation Board shall be

authorized to take a secret ballot of the employees in-

volved, or to utilize any other appropriate method of

ascertaining the names of their duly designated and

60a

authorized representatives in such manner as shall insure

the choice of representatives by the employees without

interference, influence, or coercion exercised by the car-

rier. In the conduct of any election for the purposes

herein indicated the Board shall designate who may par-

ticipate in the election and establish the rules to govern

the election, or may appoint a committee of three neutral

persons who after hearing shall within ten days designate

the employees who may participate in the election.

The Board shall have access to and have power to make

copies of the books and records of the carriers to obtain

and utilize such information as may be deemed necessary

by it to carry out the purposes and provisions of this

paragraph.

* * * *

Section 3, 45 U.S.C. § 153

$153. National Railroad Adjustment Board

First. Establishment; composition; powers and duties;

divisions; hearings and awards; judicial review

There is established a Board, to be known as the “Na-

tional Railroad Adjustment Board’, the members of which

shall be selected within thirty days after June 21, 1934,

and it is provided—

* * * *

(i) The disputes between an employee or group of em-

plovees and a carrier or carriers growing out of grievances

or out of the interpretation or application of agreements

concerning rates of pay, rules, or working conditions,

including cases pending and unadjusted on June 21, 1934,

shall be handled in the usual manner up to and including

the chief operating officer of the carrier designated to

handle such disputes; but, failing to reach an adjustment

in this manner, the disputes may be referred by petition

of the parties or by either party to the appropriate division

of the Adiustment Board with a full statement of the

facts and all supporting data bearing upon the disputes.

(m) The awards of the several divisions of the Ad-

justment Board shall be stated in writing. A copy of the

awards shall be furnished to the respective parties to the

controversy, and the awards shall be final and binding

upon both parties to the dispute. In case a dispute arises

involving an interpretation of the award, the division of

the Board upon request of either party shall interpret

the award in the light of the dispute.

* * * *

(p) If a carrier does not comply with an order of a

division of the Adjustment Board within the time limit

in such order, the petitioner, or any person for whose

benefit such order was made, may file in the District

Court of the United States for the district in which he

resides or in which is located the principal operating

office of the carrier, or through which the carrier oper-

ates, a petition setting forth briefly the causes for which

he claims relief, and the order of the division of the

Adjustment Board in the premises. Such suit in the

District Court of the United States shall proceed in all

respects as other civil suits, except that on the trial of

such suit the findings and order of the division of the

Adjustment Board shall be conclusive on the parties,

and except that the petitioner shall not be liable for costs

in the district court nor for costs at any subsequent stage

of the proceedings, unless they accrue upon his appeal,

and such costs shall be paid out of the appropriation for

the expenses of the courts of the United States. If the

petitioner shall finally prevail he shall be allowed a

reasonable attorney’s fee, to be taxed and collected as a

part of the costs of the suit. The district courts are

empowered, under the rules of the court governing actions

at law, to make such order and enter such judgment, by

writ of mandamus or otherwise, as may be appropriate

to enforce or set aside the order of the division of the

Adjustment Board: Provided, however, That such order

62a

may not be set aside except for failure of the division to

comply with the requirements of this chapter, for failure

of the order to conform, or confine itself, to matters

within the scope of the division’s jurisdiction, or for

fraud or corruption by a member of the division making

the order.

* 7 * *

Section 5, 45 U.S.C. § 155

$155. Functions of Mediation Board

First. Disputes within jurisdiction of Mediation Board

The parties, or either party, to a dispute between an

employee or group of employees and a carrier may invoke

the services of the Mediation Board in any of the follow-

ing cases:

(a) A dispute concerning changes in rates of pay,

rules, or working conditions not adjusted by the parties

in conference.

(b) Any other dispute not referable to the National

Railroad Adjustment Board and not adjusted in confer-

ence between the parties or where conferences are refused.

The Mediation Board may proffer its services in case

any labor emergency is found by it to exist at any time.

In either event the said Board shall promptly put itself

in communication with the parties to such controversy,

and shall use its best efforts, by mediation, to bring them

to agreement. If such efforts to bring about an amicable

settlement through mediation shall be unsuccessful, the

said Board shall at once endeavor as its final required

action (except as provided in paragraph third of this

section and in section 160 of this title) to induce the

parties to submit their controversy to arbitration, in

accordance with the provisions of this chapter.

If arbitration at the request of the Board shall be

refused by one or both parties, the Board shall at once

63a

notify both parties in writing that its mediatory efforts

have failed and for thirty days thereafter, unless in the

intervening period the parties agree to arbitration, or

an emergency board shall be created under section 160

of this title, no change shall be made in the rates of pay,

rules, or working conditions or established practices in

effect prior to the time the dispute arose.

* * * *

Section 204, 45 U.S.C, § 184

§ 184. System, group, or regional boards of adjustment

The disputes between an employee or group of employees

and a carrier or carriers by air growing out of grievances,

or out of the interpretation or application of agreements

concerning rates of pay, rules, or working conditions, in-

cluding cases pending and unadjusted on April 10, 1936

before the National Labor Relations Board, shall be

handled in the usual manner up to and including the chief

operating officer of the carrier designated to handle such

disputes; but, failing to reach an adjustment in this man-

ner, the disputes may be referred by petition of the

parties or by either party to an appropriate adjustment

board, as hereinafter provided, with a full statement of

the facts and supporting data bearing upon the disputes.

It shall be the duty of every carrier and of its employees,

acting through their representatives, selected in accordance

with the provisions of this subchapter, to establish a board

of adjustment of jurisdiction not exceeding the jurisdic-

tion which may be lawfully exercised by system, group, or

regional boards of adjustment, under the authority of

section 153 of this title.

Such boards of adjustment may be established by agree-

ment between employees and carriers either on any indi-

vidual carrier, or svstem, or group of carriers by air and

any class or classes of its or their employees: or pending

the establishment of a permanent National Board of Ad-

64a

justment as hereinafter provided. Nothing in this chap-

ter shall prevent said carriers by air, or any class or

classes of their employees, both acting through their

representatives selected in accordance with provisions of

this subchapter, from mutually agreeing to the establish-

ment of a National Board of Adjustment of temporary

duration and of similarly limited jurisdiction.