- Nov 4, 2003
- 7,550
- 3,767
TEAM TWU Under Fire from TWA Employees
This is our standing with the attorney .....
Our position is this; American Airlines and TWU are in violation of the collective bargaining agreement.
This case involves a claim for breach of the duty of fair representation made under the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq. Appellants, former Fleet Service workers of Trans World Airlines ("TWA"), argue that the union representing American Airlines ("American") fleet service workers had the duty to fairly represent the them.
In early 2001, American purchased TWA and announced it would merge the operations of the two airlines. The International Association Machinist (“IAMâ€) represented the former TWA employees and the Transport Workers Union of America (“TWUâ€) represented the fleet service workers at American Airlines. Soon after the purchase, TWU and the IAM agreed to arbitration for the integration of Seniority Lists Of the Mechanics and Related Employees, Fleet Service Employees, Stock Clerks and Flight Simulator Technicians.
The arbitrators ruling on APRIL 29, 2002 gave seniority based on the location of the employee at the time of integration; they would receive either 04/10/01, 25% or 100% of their seniority. It was also decided that any difference arising as to the meaning or application of the provisions of an Award made by the Arbitrator shall be referred back for a ruling to the same Arbitrator, and any such ruling shall be part of and shall have the same force and effect as the original Award. No question other than, or in addition to, the questions relating to the meaning or application of the Award shall be considered by the Arbitrator.
The plaintiffs were given assignments based on the seniority granted to them at integration.
On the 30th day of August, 2002 the Arbitrator stated in DRC Decision No. 15: The Seniority Integration Opinion and Award only speaks to the narrow issue of the occupational seniority to be granted to incoming TWA LLC employees integrated into the American workforce represented by the TWU. However, once their occupational seniority is set, such former TWA LLC employees are entitled to whatever rights such occupational seniority provides for them under the terms of the TWU/AA collective bargaining agreement.
When a dispute arose concerning bumping rights granted to laid-off employees the Arbitrator in DRC Decision NO 19: dated the 25th day of February, 2003 stated the DRC cannot change the agreement, and the alternative, that is, determining system-bumping rights based on entrance seniority, appears to contradict the collective bargaining agreement. Accordingly, it is the DRC's finding in the instant case that the two former TWA LLC employees laid off in St. Louis have the right to bump using their "exit" seniority.
On March 19, 2002, the NMB (29 NMB No. 43) determined that American and TWA-LLC operate as a single transportation system. The former TWA employees became subject to the TWU/AA collective bargaining agreement at this time and began paying union dues to TWU. The employees at this time were given assignments based on the seniority granted during integration and continued to receive assignments and all benefits based on that seniority.
On April 15, 2003 a new Collective Bargaining Agreement (CBA) was ratified in which
Article 10(d) If an employee is transferred from one station to another, his seniority will not be broken.
Article 10(e) Occupational Group Title seniority will govern all employees in the case of promotion, demotion, transfer, retention in case of reduction in force, and reemployment after release due to reduction in force, provided that the employee’s qualifications are sufficient for the conduct of the work in the classification to which he is to be assigned.
Article 14(a) An employee once having established seniority will not lose said seniority except as provided in this Agreement.
Article 15(a) All demotions and reductions in force of full time and part time employees for lack of work will be handled separately in accordance with seniority, as provided for in Article 10(e).
Article 28(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 Union, the provisions of this agreement will apply equally to all employees.
Article 28© Any decisions or agreements relating to the interpretation or application of this Agreement made jointly by the company and union will be binding on every individual employee claiming or entitled to the benefits of this agreement.
When American Airlines decided to decrease its St. Louis operations only those American Airline employees that were once former TWA employees were not allowed to exercise their seniority even though this is a violation of the CBA dated April 15, 2003.
The duty of fair representation arises from a union's statutory role as the exclusive bargaining representative for a unit of employees. Vaca v. Sipes, 386 U.S. 171, 177 (1967). Under the RLA, employees subordinate their interests to the collective interest of all employees in the bargaining unit, so that the union representing that unit may achieve a better collective bargain with the employer than each employee could obtain alone. See id. at 182. In ceding their interests to the union, the employees forego some individual rights against the employer. See id. The duty of fair representation was created as a check on the union "to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law." Id. "Under this doctrine, the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Id. at 177.
The scope of the duty of fair representation is generally coextensive with the scope of the union's statutory authority as the exclusive bargaining agent. "A union's duty of fair representation . . . does not extend to persons who are not employees in the bargaining unit." Karo v. San Diego Symphony Orchestra Ass'n, 762 F.2d 819, 821 (9th Cir. 1985).
Conversely, "[a] labor organization that is not the exclusive representative of a bargaining unit . . . owes no duty of fair representation to the members of the unit." Dycus v. NLRB,
615 F.2d 820, 827 (9th Cir. 1980). TWU was the exclusive bargaining agent for all employees at this time.
In Bernard v. Air Line Pilots Ass'n, 873 F.2d 213, 218 (9th Cir. 1989) (holding that duty of fair representation attaches when workforces merge). American and TWA did become a "single carrier" for representational purposes on March 19, 2002. Despite the fact that TWU were the statutory bargaining unit for all employees at the time the CBA was ratified on April 15, 2003 TWU has failed to allow former TWA employees the full rights under this agreement and did have a duty to fairly represent them at that time.
The National Mediation Board ("NMB") has exclusive jurisdiction to determine union representation disputes under the RLA; an NMB representation determination is essentially unreviewable in federal court. Switchmen's Union v. NMB, 320 U.S. 297, 303-07 (1943) (holding that Congress intended for NMB determinations of union representation to be final and not subject to judicial review, and declining to review an NMB determination); see also Air Line Pilots Ass'n, Int'l v. Texas Int'l Airlines, Inc., 656 F.2d 16, 22 (2d Cir. 1981) ("[T]he NMB is empowered to . . . decide representation disputes arising out of corporate restructurings.").
The former TWA employees argue that "by undertaking the responsibility to represent" them TWU obligated itself to represent them fairly. Other circuits have held that where a union holds itself out to persons as their exclusive bargaining agent with the intent and effect of inducing reliance, the union must represent those persons fairly in any negotiations it undertakes on their behalf. See BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers, 132 F.3d 824, 833 (1st Cir. 1997); Chavez v. United Food & Commercial Workers Int'l Union, 779 F.2d 1353, 1357 (8th Cir. 1985).
To succeed on the theory in other circuits, plaintiffs must show that the union held itself out to the plaintiffs to be their exclusive bargaining agent and that the plaintiffs relied upon that purported representation. Chavez, 779 F.2d at 1357.
When the American and TWA workforces merged the former TWA employees became part of
the American bargaining unit. At that point, the TWU had the duty to fairly represent the former TWA employees. See Bernard, 873 F.2d at 218 (holding that duty of fair representation
attaches when workforces merge). The TWA employees contend that the TWU breached its duty to fairly represent them by not implementing the terms of the CBA equally.
TWU was the exclusive bargaining representative when the CBA agreement was negotiated. It did have the statutory authority to represent the former TWA employees. The former TWA employees did cede their bargaining rights to the TWU, so the duty of fair representation does protect them from arbitrary conduct by the TWU. The RLA requires the TWU to protect the interests of the employees within its bargaining unit.
If American Airlines and TWU want to go by the Arbitrators ruling (which was pre ratification of the new (CBA)) then they must abide by the whole ruling which states in DRC decision 5 that,
“Discriminating against former TWA LLC employees by denying them (and only them) application of occupational seniority in layoff situations would allow AA employees to benefit at the expense of former TWA LLC employees. Former TWA LLC employees would be among the first to be bumped out of a station, in lieu of more junior AA employees notwithstanding that, in the absence of the additional jobs brought by the integration, such employees may well have suffered layoff in the contraction. This result is clearly inequitable and not required by the contract. For this reason, the occupational seniority awarded former TWA LLC employees by virtue of the seniority integration Award does apply in layoff situations.â€
And in the original integration award dated April 29, 2002 states that, the pay scale of former TWA employees will increase, (for mechanics the pay will go to $28.85/hour and for ramp servicemen $22.05/hour.) These wage rate increases do not include subsequent increases that took effect on March 1, 2002.
The Arbitrator also states that the protective date is 03/01/01 not 09/24/1998.
Either the Arbitrators ruling applies and the pay of former TWA employees should not have been cut during the last CBA and the protection date must be 03/01/2001. If his ruling applies then American Airlines must restore the pay of these employees effective 04/15/2003 and restore the protection date to 03/01/2001 since the former TWA employees are not covered by the agreement.
If as TWU states, that the arbitrator's award does not modify the AA/TWU labor agreement then TWU and American Airlines is in violation of the Collective Bargaining Agreement dated April 15, 2003 for the following Articles.
Article 10(d) If an employee is transferred from one station to another, his seniority will not be broken.
Article 10(e) Occupational Group Title seniority will govern all employees in the case of promotion,
demotion, transfer, retention in case of reduction in force, and reemployment after release due to
reduction in force, provided that the employee’s qualifications are sufficient for the conduct of the work in
the classification to which he is to be assigned.
Article 14(a) An employee once having established seniority will not lose said seniority except as
provided in this Agreement.
Article 15(a) All demotions and reductions in force of full time and part time employees for lack of work
will be handled separately in accordance with seniority, as provided for in Article 10(e).
Article 28(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 Union, the provisions of this agreement will apply equally to all employees.
Article 28© Any decisions or agreements relating to the interpretation or application of this Agreement made jointly by the company and union will be binding on every individual employee claiming or entitled to the benefits of this agreement.
Either the Arbitrators ruling does apply and pay and protection date is restored or the CBA applies and therefore the former TWA employees will not lose their seniority if transferred from one station to another.
TWU and American Airlines can not pick and choose, it's either one or the other.
This is our standing with the attorney .....
Our position is this; American Airlines and TWU are in violation of the collective bargaining agreement.
This case involves a claim for breach of the duty of fair representation made under the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq. Appellants, former Fleet Service workers of Trans World Airlines ("TWA"), argue that the union representing American Airlines ("American") fleet service workers had the duty to fairly represent the them.
In early 2001, American purchased TWA and announced it would merge the operations of the two airlines. The International Association Machinist (“IAMâ€) represented the former TWA employees and the Transport Workers Union of America (“TWUâ€) represented the fleet service workers at American Airlines. Soon after the purchase, TWU and the IAM agreed to arbitration for the integration of Seniority Lists Of the Mechanics and Related Employees, Fleet Service Employees, Stock Clerks and Flight Simulator Technicians.
The arbitrators ruling on APRIL 29, 2002 gave seniority based on the location of the employee at the time of integration; they would receive either 04/10/01, 25% or 100% of their seniority. It was also decided that any difference arising as to the meaning or application of the provisions of an Award made by the Arbitrator shall be referred back for a ruling to the same Arbitrator, and any such ruling shall be part of and shall have the same force and effect as the original Award. No question other than, or in addition to, the questions relating to the meaning or application of the Award shall be considered by the Arbitrator.
The plaintiffs were given assignments based on the seniority granted to them at integration.
On the 30th day of August, 2002 the Arbitrator stated in DRC Decision No. 15: The Seniority Integration Opinion and Award only speaks to the narrow issue of the occupational seniority to be granted to incoming TWA LLC employees integrated into the American workforce represented by the TWU. However, once their occupational seniority is set, such former TWA LLC employees are entitled to whatever rights such occupational seniority provides for them under the terms of the TWU/AA collective bargaining agreement.
When a dispute arose concerning bumping rights granted to laid-off employees the Arbitrator in DRC Decision NO 19: dated the 25th day of February, 2003 stated the DRC cannot change the agreement, and the alternative, that is, determining system-bumping rights based on entrance seniority, appears to contradict the collective bargaining agreement. Accordingly, it is the DRC's finding in the instant case that the two former TWA LLC employees laid off in St. Louis have the right to bump using their "exit" seniority.
On March 19, 2002, the NMB (29 NMB No. 43) determined that American and TWA-LLC operate as a single transportation system. The former TWA employees became subject to the TWU/AA collective bargaining agreement at this time and began paying union dues to TWU. The employees at this time were given assignments based on the seniority granted during integration and continued to receive assignments and all benefits based on that seniority.
On April 15, 2003 a new Collective Bargaining Agreement (CBA) was ratified in which
Article 10(d) If an employee is transferred from one station to another, his seniority will not be broken.
Article 10(e) Occupational Group Title seniority will govern all employees in the case of promotion, demotion, transfer, retention in case of reduction in force, and reemployment after release due to reduction in force, provided that the employee’s qualifications are sufficient for the conduct of the work in the classification to which he is to be assigned.
Article 14(a) An employee once having established seniority will not lose said seniority except as provided in this Agreement.
Article 15(a) All demotions and reductions in force of full time and part time employees for lack of work will be handled separately in accordance with seniority, as provided for in Article 10(e).
Article 28(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 Union, the provisions of this agreement will apply equally to all employees.
Article 28© Any decisions or agreements relating to the interpretation or application of this Agreement made jointly by the company and union will be binding on every individual employee claiming or entitled to the benefits of this agreement.
When American Airlines decided to decrease its St. Louis operations only those American Airline employees that were once former TWA employees were not allowed to exercise their seniority even though this is a violation of the CBA dated April 15, 2003.
The duty of fair representation arises from a union's statutory role as the exclusive bargaining representative for a unit of employees. Vaca v. Sipes, 386 U.S. 171, 177 (1967). Under the RLA, employees subordinate their interests to the collective interest of all employees in the bargaining unit, so that the union representing that unit may achieve a better collective bargain with the employer than each employee could obtain alone. See id. at 182. In ceding their interests to the union, the employees forego some individual rights against the employer. See id. The duty of fair representation was created as a check on the union "to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law." Id. "Under this doctrine, the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Id. at 177.
The scope of the duty of fair representation is generally coextensive with the scope of the union's statutory authority as the exclusive bargaining agent. "A union's duty of fair representation . . . does not extend to persons who are not employees in the bargaining unit." Karo v. San Diego Symphony Orchestra Ass'n, 762 F.2d 819, 821 (9th Cir. 1985).
Conversely, "[a] labor organization that is not the exclusive representative of a bargaining unit . . . owes no duty of fair representation to the members of the unit." Dycus v. NLRB,
615 F.2d 820, 827 (9th Cir. 1980). TWU was the exclusive bargaining agent for all employees at this time.
In Bernard v. Air Line Pilots Ass'n, 873 F.2d 213, 218 (9th Cir. 1989) (holding that duty of fair representation attaches when workforces merge). American and TWA did become a "single carrier" for representational purposes on March 19, 2002. Despite the fact that TWU were the statutory bargaining unit for all employees at the time the CBA was ratified on April 15, 2003 TWU has failed to allow former TWA employees the full rights under this agreement and did have a duty to fairly represent them at that time.
The National Mediation Board ("NMB") has exclusive jurisdiction to determine union representation disputes under the RLA; an NMB representation determination is essentially unreviewable in federal court. Switchmen's Union v. NMB, 320 U.S. 297, 303-07 (1943) (holding that Congress intended for NMB determinations of union representation to be final and not subject to judicial review, and declining to review an NMB determination); see also Air Line Pilots Ass'n, Int'l v. Texas Int'l Airlines, Inc., 656 F.2d 16, 22 (2d Cir. 1981) ("[T]he NMB is empowered to . . . decide representation disputes arising out of corporate restructurings.").
The former TWA employees argue that "by undertaking the responsibility to represent" them TWU obligated itself to represent them fairly. Other circuits have held that where a union holds itself out to persons as their exclusive bargaining agent with the intent and effect of inducing reliance, the union must represent those persons fairly in any negotiations it undertakes on their behalf. See BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers, 132 F.3d 824, 833 (1st Cir. 1997); Chavez v. United Food & Commercial Workers Int'l Union, 779 F.2d 1353, 1357 (8th Cir. 1985).
To succeed on the theory in other circuits, plaintiffs must show that the union held itself out to the plaintiffs to be their exclusive bargaining agent and that the plaintiffs relied upon that purported representation. Chavez, 779 F.2d at 1357.
When the American and TWA workforces merged the former TWA employees became part of
the American bargaining unit. At that point, the TWU had the duty to fairly represent the former TWA employees. See Bernard, 873 F.2d at 218 (holding that duty of fair representation
attaches when workforces merge). The TWA employees contend that the TWU breached its duty to fairly represent them by not implementing the terms of the CBA equally.
TWU was the exclusive bargaining representative when the CBA agreement was negotiated. It did have the statutory authority to represent the former TWA employees. The former TWA employees did cede their bargaining rights to the TWU, so the duty of fair representation does protect them from arbitrary conduct by the TWU. The RLA requires the TWU to protect the interests of the employees within its bargaining unit.
If American Airlines and TWU want to go by the Arbitrators ruling (which was pre ratification of the new (CBA)) then they must abide by the whole ruling which states in DRC decision 5 that,
“Discriminating against former TWA LLC employees by denying them (and only them) application of occupational seniority in layoff situations would allow AA employees to benefit at the expense of former TWA LLC employees. Former TWA LLC employees would be among the first to be bumped out of a station, in lieu of more junior AA employees notwithstanding that, in the absence of the additional jobs brought by the integration, such employees may well have suffered layoff in the contraction. This result is clearly inequitable and not required by the contract. For this reason, the occupational seniority awarded former TWA LLC employees by virtue of the seniority integration Award does apply in layoff situations.â€
And in the original integration award dated April 29, 2002 states that, the pay scale of former TWA employees will increase, (for mechanics the pay will go to $28.85/hour and for ramp servicemen $22.05/hour.) These wage rate increases do not include subsequent increases that took effect on March 1, 2002.
The Arbitrator also states that the protective date is 03/01/01 not 09/24/1998.
Either the Arbitrators ruling applies and the pay of former TWA employees should not have been cut during the last CBA and the protection date must be 03/01/2001. If his ruling applies then American Airlines must restore the pay of these employees effective 04/15/2003 and restore the protection date to 03/01/2001 since the former TWA employees are not covered by the agreement.
If as TWU states, that the arbitrator's award does not modify the AA/TWU labor agreement then TWU and American Airlines is in violation of the Collective Bargaining Agreement dated April 15, 2003 for the following Articles.
Article 10(d) If an employee is transferred from one station to another, his seniority will not be broken.
Article 10(e) Occupational Group Title seniority will govern all employees in the case of promotion,
demotion, transfer, retention in case of reduction in force, and reemployment after release due to
reduction in force, provided that the employee’s qualifications are sufficient for the conduct of the work in
the classification to which he is to be assigned.
Article 14(a) An employee once having established seniority will not lose said seniority except as
provided in this Agreement.
Article 15(a) All demotions and reductions in force of full time and part time employees for lack of work
will be handled separately in accordance with seniority, as provided for in Article 10(e).
Article 28(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 Union, the provisions of this agreement will apply equally to all employees.
Article 28© Any decisions or agreements relating to the interpretation or application of this Agreement made jointly by the company and union will be binding on every individual employee claiming or entitled to the benefits of this agreement.
Either the Arbitrators ruling does apply and pay and protection date is restored or the CBA applies and therefore the former TWA employees will not lose their seniority if transferred from one station to another.
TWU and American Airlines can not pick and choose, it's either one or the other.
