Twa Lawsuit Black And White

Hopeful

Veteran
Dec 21, 2002
5,998
347
January 8, 2004

Arthur J. Martin
Attorney at Law
the Shell Building, 2nd Floor
1221 Locust Street
St. Louis, MO 63103-2364

Re: Transportation Workers Union Local 529
Mark Clover and Similarly Situated Employees Seniority Grievance

Dear Art:

This grievance attempts to resolve the rights of represented employees to transfer to other stations/cities following their furloughs in St. Louis. Specifically, the grievance raises the question: Does Mr. Clover, and other similarly situated represented employees in St. Louis, have the right to transfer to vacant positions or bump less senior unprotected American employees at other locations, without loss of 100% seniority.

I. The Grievance:

In September 2003, Mr. Clover and other American employees assigned to the St. Louis station were notified that they would be furloughed effective October 31, 2003. Each furloughed employee was provided a transfer sheet which severely limited their options. Further, they were advised that if they were to transfer, each would lose his or her 100% seniority; being given either a 25% or 4/10/01 seniority date depending upon the station selected.

On September 29, 2003, Mr. Clover (together with many other co-employees signatories) filed grievance #1471 which reads as follows:

The company and the union violated my rights under the contract and the arbitrators decision of the 25th of February, 2003. It was decided that former TWA employees laid off in St. Louis have the right to bump using their “exiting seniorityâ€. My exiting seniority is 100%. On the option sheet provided to me, the choices indicated 100%, 25% and 4/10/01. All should have been 100% per the arbitrators decision. I am requesting to have my choices redone with all options reading 100%.


On October 2, 2003, Mr. Clover’s immediate supervisor denied the grievance, stating:

DCR #5 answers your questions regarding how former TWA LLC employees are affected by reductions in force and how they are to be recalled. Based on this, I do not find a violation of the collective bargaining agreement between American Airlines and the Transportation Workers Union. Therefore, your grievance is respectfully denied.

On October 4, 2003, Mr. Clover filed an appeal to the Executive Chief Operating Officer and the Human Resource Office. In support of the grievance, he wrote:

The company and union violated my rights under the collective bargaining agreement. My occupational seniority is 4/14/78. (Dispute no. 15) on the 30th day of August , 2002, it was stated that ‘However, once their occupational seniority is set, such former TWA LLC employees are entitled to whatever such occupational seniority provides for them under the terms of the TWA/AA collective bargaining agreement.’ Article 10 (d) of the collective bargaining agreement states ‘If an employee is transferred from one station to another, his seniority will not be broken.’ Article 14(a) states ‘An employee, once having established seniority, will not lose said seniority except as provided in this agreement.’ My seniority was set at 100% during the integration. Therefore, not allowing me to use my full occupational seniority is a violation of the collective bargaining agreement signed on April 15, 2003. Article 15(a) [provides] 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). I would like to have the bid redone and be allowed to exercise my rights under the collective bargaining agreement dated April 15, 2003. Included, is a copy of the original grievance number 1471 and Dispute decisions 15 & 19. The arbitrator explains [in] dispute number 5 [and] in his answer to dispute number 19... Article 10, 14, and 15 of the collective bargaining agreement. TWU has stated that the arbitrator’s award does not modify the TWA/AA labor agreement.

When Mr. Clover did not receive a timely response to his second level appeal, he requested a hearing before the Board of Adjustment.


Pending the final resolution of the grievance, Mr. Clover transferred to a vacant position at JFK as a Fleet Service Clerk. Under the 4/29/02 Seniority Integration Opinion and Award, former TWA LLC employees were awarded 25% of their seniority at JFK. By transferring, Mr. Clover’s seniority was reduced from 100% to 25% and he was given the seniority date of 7/21/95. Mr. Clover was also denied the opportunity to bid for a vacant Crew Chief position and his rights to transfer in the event of a future layoff are further limited.

II. Analysis of the Grievance:

The Clover grievance implicates employee rights under the 4/15/03 collective bargaining agreement and the arbitration award entered on April 29, 2002 and supplemental awards issued by the Dispute Resolution Committee. Mr. Clover’s rights, and the rights of other similarly situated employees were violated under both agreements.

A. The Seniority Integration Opinion and Award and Supplemental Awards:

During the first quarter of 2001, TWU became aware of American’s proposal to acquire the majority of assets of TWA and to offer employment at American to TWA’s employees who were represented by the International Association of Machinists and Aerospace Workers (IAM).

During this period, TWU and American were engaged in contract negotiations. As part of those negotiations and in consideration of the TWA asset purchase on April 10, 2001, TWU proposed, and American agreed, to modify the scope in their basic working agreement. The new language was ratified in September 2001, retroactive to March 2001. In pertinent part, the language provided that in the event of a merger, purchase or acquisition of another company by American, the integration of employees will be governed by the agreement and will be subject to the provisions of Sections 3 and 13 of Allegheny/Mohawk, 59 CAB 22 (1972). The Agreement provided that no employee on the master seniority list would be adversely impacted in rates of pay, hours or working conditions by the integration (“no adverse impact†clause).

Following the ratification of the American-TWU agreement, the parties reached an impasse on the integration process and agreed to submit the dispute to arbitration in accordance with Sections 3 and 13 of Allegheny/Mohawk. The arbitrator was charged with deciding the following question:

How the system seniority lists of each of the respective employee groups shall be integrated for purposes of occupational seniority in light of the applicable provisions of the AA/TWU collective bargaining agreements?

Following an evidentiary hearing, the arbitrator (Richard R. Kasher) entered his opinion and award.


The arbitrator found the collective bargaining agreements required, at the very least, that upon integration, TWU represented American employees cannot be displaced from positions they then held by TWA employees. On the other hand, the arbitrator found that “equity requires that IAM represented employees also have rights to retain the positions they held unless displacement is necessary to comply with the no ‘adverse impact clause’â€.

The arbitrator also observed that “[t]he enabling language of the American-TWU collective bargaining agreements requires that the seniority integration award provide protection against harm, but does not guarantee increased seniority benefits as a result of the integration process. Nor does the ‘hold harmless’ provision protect employees from the adverse consequences of down turns in the economy or catastrophic events such as the terrorist attacks of September 11, 2001.†Accordingly, the arbitrator found “no contractual justification for permitting American employees displaced as a result of the ramifications of September 11, 2001, to displace TWA employees from the positions that they now hold performing the work that they brought with them. To permit such displacement by American employees would be particularly unfair and inequitable, in view of the fact that TWA employees were laid off in significant greater portions since September 11, 2001 then were their American counterparts.â€

In addition, the arbitrator found that “beyond the initial integration, American and TWU, in their collective bargaining agreements, intended to protect the legitimate expectations of American’s TWU-represented employees in terms of bidding and advancement, and to ensure that the acquisition and seniority integration process did not deprive American’s TWU-represented employees of work opportunities they could legitimately expect.â€

However, the arbitrator found that “the contractual language and the bargaining history does not disclose that there was any guarantee for American’s TWU-represented employees that there would be additional work opportunities created for them by the acquisition and integration and nor does the language dictate that American’s TWU-represented employees benefit at the expense of the IAM-represented workforce.â€

While respecting the “no adverse impact†language of the TWU-American collective bargaining agreements, the arbitrator tried to fashion a fair and equitable award so far as incoming TWA employees were concerned. To that end, the arbitrator awarded TWA employees, at its St. Louis Hub and Kansas City Maintenance Facility, their right to exercise full (100%) TWA seniority. With respect to the other stations, the arbitrator issued the following award:


1. At city/stations where TWA’s available seat miles (ASM) contribution was ten percent (10%) or more when compared to the combined ASM of TWA and American had at that station as of April 9, 2001, TWA employees will be awarded twenty-five percent (25%) of their acquired seniority for purposes of bidding and advancement;

2. At city/stations where TWA’s ASM contribution was less than ten percent (10%) when compared to the combined ASMs TWA and American had at the station as of April 9, 2001, TWA employees will be awarded a April 10, 2001 seniority date for purposes of bidding and advancement.

Further, as a result of the initial implementation of the award, the arbitrator held that there would be no “system flush,†that is, displacement of presently working employees in the crafts or classes under consideration.

The arbitrator established a dispute resolution committee for the purposes of hearing and resolving any disputes regarding the proper interpretation and implementation of the award. Subsequently, the arbitrator serving as the DRC issued numerous decisions purportedly to clarify and interpret the initial award.

For example, in Dispute no. 3, the questions was: In what order are American employees with recall to STL and former TWA employees with recall to STL recalled to vacancy? The arbitrator ruled that recall should be handled in accordance with the TWU-AA collective bargaining agreement with all employees exercising their full occupational seniority as calculated in accordance with the principles of the collective bargaining agreement. Accordingly, American-TWU represented employees and former TWA employees were to be blended in occupational seniority order for purposes of recall to St. Louis.

Dispute no. 5 involved the question: For what purpose may a TWA employee exercise his occupational seniority whether it be 25% or 100%? The arbitrator acknowledged that the award did not specifically deal with the issue of whether 25% occupational seniority provided to some former TWA employees applied in cases of layoff. The arbitrator clarified his earlier ruling, holding that “the occupational seniority awarded to former TWA LLC employees by virtue of the seniority integration award will apply in layoff situations.†The arbitrator also explained how the occupational seniority would apply in the furlough process under the TWU/AA agreement which was ratified in September 2001.



With respect to system displacement, the arbitrator ruled “once a junior employee at a location if given a furlough notice, he has the opportunity to displace junior employees on a system-wide basis using a juniority list.â€

The arbitrator was unwilling to create new restrictions on the use of occupational seniority applicable to only former TWA employees. On the other hand, the arbitrator noted that the contract placed a significant restriction on application of occupational seniority by providing that a system protected employee may not be bumped in a system displacement. For this reason, the arbitrator held that the occupational seniority provided former TWA employees by virtue of the Seniority Integration Opinion and Award was of limited use to such employees when competing with system protected employees in a system displacement. Accordingly, he created the juniority list consisting of all unprotected employees, i.e. all American employees hired after 3/1/01(now 09/24/98 per 4/15/2003 CBA) and all former TWA employees, to be used when transferring or bumping. The juniority list was intended to identify those junior employees system-wide who can be displaced by the furloughed employee through normal operation of occupational seniority.

Dispute no. 15 raised the question: As future vacancies become available, who should be awarded the positions? The arbitrator held that “once occupational seniority is set, 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. “ The contract provides priority to positions for those exercising recall rights over those seeking transfers. The arbitrator found that the issue raised did not involve the Seniority Integration Opinion and Award, but rather an application of the TWU/AA collective bargaining agreement which the arbitrator found he had no authority or jurisdiction to change or modify.

DRC decision no. 19 addressed the following question: Whether a former TWA LLC employee at MCI/STL or other stations where seniority 25% has been recognized are considered to have the two years occupational seniority necessary to displace other “unprotected employees†on the system juniority list? The arbitrator affirmed the carrier’s decision to allow two former TWA mechanics who were laid off in St. Louis to exercise bumping rights into Chicago displacing employees whose seniority began after April 10, 2001.


Under the then existing collective bargaining agreement, Article 15(B)(4) permitted mechanics with two years of seniority to exercise his seniority to displace an employee in his own classification or any lower classification. To determine whether the former St. Louis TWA employees have the seniority to bump, the arbitrator held that their occupational seniority is calculated based upon the city they are being laid off from (“exit seniorityâ€). Moreover, the arbitrator found that to use the seniority for the city that an employee is attempting to bump into (“entrance seniorityâ€) would be inconsistent with the collective bargaining agreement which provides the right to displace the employee with the least system seniority.

If the Clover grievance were presented to the DRC, I believe that it is reasonably likely that it would be resolved in favor of the employees. First, DCR decision 19 comes close to resolving the question here presented, thereby permitting Mr. Clover and other similarly situated employees to use and maintain their full TWA seniority (“exit seniorityâ€) when bumping into a 25% or 4/10/01 seniority station. Second, I believe that DRC would find that because the St. Louis furloughs were not a result of the initial integration process, that permitting each to maintain their 100% seniority would not adversely effect protected employees as contemplated under the TWU/AA collective bargaining agreement. Finally, I believe that it is likely that the arbitrator would find that this interpretation is consistent with the April 2003 collective bargaining agreement, which protects only American employees who were on its payroll before September 24, 1998 [Article 42].

B. April 15, 2003 Collective Bargaining Agreement:

As of August 30, 2003, the parties recognized and the DRC found that the initial implementation of the Seniority Integration Opinion and Award had been completed (DRC decision no. 7). Based upon Mr. Clover’s TWA seniority, he was given an occupational seniority date of April 14, 1978. Further, he became a member of TWU stationed in St. Louis and classified as a Crew Chief Fleet Service Clerk. Thereafter, on April 15, 2003, American Airlines and TWU entered into a collective bargaining agreement covering Fleet and Ground service employees, which superceded prior agreements [Article 46].

Article 10 of the collective bargaining agreement provides for occupational group title seniority (A.K.A) occupational seniority [Article 10(B)]. Occupational seniority governs all employees in the case of promotion, demotion, transfer, retention in case of reduction of force and re-employment after release due to reduction in force provided that the employees qualifications are sufficient for the conduct of the work and the classification to which he is to be assigned [Article 10(e)]. If an employee is transferred from one station to another, his seniority will not be broken [Article 10(d)]. Article 14(a) provides that an employee once having established seniority will not lose said seniority subject to certain exemptions not applicable here.


Article 15 titled “Reduction in Force†provides that 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 15(a)]. Under subsection (B), an employee who has completed his probationary period and is directly effected by a curtailment of work requiring a reduction in force, may, at his option...(3)... to exercise his seniority to displace the employee or employees with the least system seniority in his own or lower classification in either a full time or part time position...In application of the above, the employee are to be advised of the order of his occupational seniority, offered his choice of stations where appropriate vacancies exist in a location or locations of the least senior employees in his classification in the system, provided he has sufficient seniority. The number of least senior employees in the appropriate classification (both full time and part time) selected for displacement will correspond to the number of laid off employees who elect to exercise their seniority to a job in their own classification.

Under Article 42, subsection (a), persons employed by American on September 24, 1998 are afforded protections from layoff and involuntary reduction in classification. Likewise, under subsection (B), employees who, on February 11, 1983, were American’s active payroll, and on September 1, 1985, were actively employed/based at certain stations are given additional protections against layoff.

Based upon the language of the collective bargaining agreement, I believe that it is reasonably likely that the Board of Adjustment would also find in favor of the employees, including Mr. Clover. First, once his occupational seniority date is established, it cannot be taken away except for conditions not applicable here [Article 14(a)]. Second, except as provided in Article 42, Mr. Clover and similarly situated employees had a right to fill a vacancy at another station in his classification and may exercise his seniority to displace an employee or employees with the least system seniority in his own or lower classification in either a full time or part time position [Article 15(B)(2)(3)]. Finally, I believe that it is reasonably likely that the Board of Adjustment would find that with the completion of the seniority integration and ratification of a new collective bargaining agreement, based upon occupational seniority Mr. Clover, and other similarly situated employees, had the right to bump less senior employees, except those falling within the protections of Article 42.

IV. Strategy for Prosecuting Grievances:

As mentioned above, The Clover and other similarly situated employees grievance turns an interpretation of the current Collective Bargaining Agreement and the Seniority Integration Opinion and Award. Accordingly, the grievance can be presented to the Dispute Resolution Committee as a supplemental dispute and/or under Articles 31 and 32 of the collective bargaining agreement. Because of the overlapping jurisdiction and/or the possibility that either the DRC or the Board of Adjustment might abdicate or refuse to exercise its jurisdiction, Mr. Clover and other similarly situated employees suggests that the grievance be prosecuted in both forums.



After you have had an opportunity to review this matter, please give me a call.


Sincerely yours,


Charles W. Bobinette

CWB/jp




TWA
 
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