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May 26, 1966


The opinion of the court was delivered by: Decker, District Judge.

This suit for injunction, declaratory judgment and damages is still another chapter in an eleven-year odyssey pursued by a group of United Air Lines ("United") pilots and co-pilots in search of improved seniority positions. Other chapters have been written before neutral arbitrators, United States District Courts, United States Courts of Appeals and the Civil Aeronautics Board ("CAB"). Plaintiffs have lost every attempt; a careful review of the extensive briefs, pleadings and exhibits before me conclusively shows that plaintiffs must lose again.

The flight deck crew of a commercial airliner consists of three men: a pilot or captain, a co-pilot or "first officer," and a flight enginer or "second officer." The flight engineer was a post-war innovation, not required by federal government regulation until December 1, 1948. When this requirement for a specially trained second officer was imposed, United met it by adding a third person to the flight deck crew: a co-pilot who also qualified as a flight engineer. Shortly afterward, in April, 1949, in response to pressure from the Flight Engineers International Association ("FEIA") and for financial reasons, United dropped the requirement that its flight engineers be qualified pilots. For a period of five years, until February, 1954, United hired and used flight engineers upon whom the requirement of pilot training was not imposed. United reinstated this requirement in 1954 and has maintained it ever since.

Plaintiffs were hired by United as pilots and co-pilots between 1946 and 1948. In 1948, they were furloughed from these jobs and hired as flight engineers. Although they were qualified as pilots, for the greater part of the time they served United as flight engineers until 1954, they held positions for which pilot training was not required. Their collective bargaining representative while they were flight engineers was the FEIA.

In 1954, plaintiffs accepted employment with United as co-pilots, and they have been serving as pilots or co-pilots ever since, with the Air Line Pilots Association ("ALPA") as their collective bargaining representative. Plaintiffs were placed at the bottom of the 1955 pilot seniority list; they had not been given seniority credit for the time they had spent as flight engineers between 1949 and 1954. Thirty-three of the forty-one plaintiffs here (together with others), known as the "Vanlehn Group," filed grievances, which were denied by United. Subsequent challenges in District Courts, before a System Board and the Tenth Circuit Court of Appeals failed to overturn the 1955 list.

Plaintiffs' relative position remained unchanged on the 1957 pilot seniority list, and, after it was posted, thirty-two of them again filed grievances and unsuccessfully pursued their claim through the United States District Court in this District and the Seventh Circuit Court of Appeals. The 1957 list stood unchanged.

In 1961, two events occurred which gave members of the Vanlehn group a new peg upon which to hang their claim that their service as flight engineers should have been counted in drawing up the seniority lists. First, pursuant to a determination by the National Mediation Board ("NMB") that all three members of the flight deck crew constituted a single collective bargaining craft, the ALPA was certified as the bargaining agent for the entire crew on May 31, 1961. Second, pursuant to agreement on August 11, 1960, and the CAB approval on April 3, 1961, United Air Lines and Capital Airlines merged on June 1, 1961.

Following the merger, the ALPA contained two groups of men who had served as flight engineers at some time in the past under similar circumstances: the Vanlehn group and the similarly situated group among Capital Airlines employees. One critical difference distinguished the two groups: Capital flight engineers had always been required to be qualified as pilots, whereas the Vanlehn group was not subject to this requirement from 1949 to 1954. Among the many other problems of seniority integration facing the ALPA following the merger was the evaluation of the relative claims of the Vanlehn group and the Capital group.

Post-merger seniority lists were ultimately drawn by internal arbitration boards headed by outside neutrals. In effect, each seniority list was the product of the best judgment of a neutral arbitrator. Two separate proceedings were pursued. The first arbitration board, headed by neutral Harry Abrahams integrated the seniority lists of the two airlines except for the career flight engineers, a group of flight deck men who were flight engineers at the time of the merger. Plaintiffs were placed on the list by the Abrahams award. The second award, by the panel headed by neutral David L. Cole, resolved the seniority status of the career flight engineers and did not directly affect plaintiffs' rights.

The integrated seniority list created by the Abrahams and Cole arbitration was adopted by United and the ALPA in a collective bargaining agreement ("Agreement") on June 11, 1963. The Agreement also contained a new definition of the word pilot which included within its scope the position of flight engineer in accordance with the NMB ruling. The new seniority provision of the Agreement, in addition to adopting the Abrahams-Cole list, provided that "pilot seniority shall accrue from the first date of first assignment to the airline as a pilot * * *." With adoption of this Agreement, the stage was set for two separate but related challenges to the seniority list.

In the order approving the merger, United-Capital Merger Case, 33 CAB 307, 342 (1961), the CAB imposed labor protective provisions, which in relevant part provided as follows:

  "Insofar as the merger affects the seniority
  rights of the carriers' employees, provisions
  shall be made for the integration of seniority
  lists in a fair and equitable manner, including,
  where applicable, agreement through collective
  bargaining between the carriers and the
  representatives of the employees affected. In the
  event of failure to agree, the dispute may be
  submitted by either party for adjustment in
  accordance with Section 13."

Four pages of small print accompanying the order contained detailed labor provisions, and the CAB further provided as follows:

  "That jurisdiction is hereby reserved to make
  such amendments, modifications,

  and additions to the protective labor conditions
  imposed by paragraph 2(c) above as circumstances
  may require."

Invoking the CAB's reservation of jurisdiction, the career flight engineers whose positions had been established by the Cole arbitration, petitioned the CAB to avoid the integrated seniority list on the ground that it violated the terms of the merger order in that it was not "fair and equitable." They also alleged that the ALPA had wilfully discriminated against them and violated its duty of fair representation. The CAB dismissed the petition, finding both asserted grounds without merit. The career flight engineers then filed suit in District Court in this District, charging the ALPA with violating its duty of fair representation. The suit was dismissed and the Seventh Circuit Court of Appeals affirmed. Oling v. Air Lines Pilot Ass'n, et al., 346 F.2d 270 (7th Cir. 1965), cert. denied 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965).

Having observed the fate of the flight engineers before the CAB, plaintiffs chose a different route of challenge. Although they warned the CAB by letter that they, too, might some day invoke the reservation of jurisdiction in the same manner as the career flight engineers, plaintiffs proceeded to employ the internal grievance arbitration machinery of the union through a System Board of Adjustment headed by neutral member Dr. Mark L. Kahn. Upon losing there, they filed this suit to enjoin use of the integrated seniority list, to declare it null and void and to obtain damages to make them whole for their incorrect seniority position since the merger. Other related relief is also sought.

Plaintiffs seek relief on two grounds. First, in Count I of the complaint, the ALPA is charged with violating its duty as a collective bargaining agent under the Railway Labor Act by discriminating against plaintiffs. The alleged discrimination is to be found in the execution of an agreement in which plaintiffs were deprived of seniority rights "on the basis of considerations that are irrelevant and unfair." United, which is alleged to have surrendered its power over seniority to the ALPA, is charged with the ALPA with acting "in bad faith and in a deliberate effort to subvert national labor policy which requires integration of seniority in a fair and equitable manner."

Count II charges the System Adjustment Board, the grievance arbitrator which heard that part of plaintiffs' claim based on construction of the Agreement, with exceeding its authority by amending and altering the meaning of the Agreement. The core of Count II is also that the seniority list is wrong, but the Count II claim is based on the very language of the Agreement, rather than the acts of the ALPA or United.

Defendants' motion to dismiss initially argues that the CAB has exclusive jurisdiction of the controversy. Defendants further argue that plaintiffs have not stated a claim upon which relief can ...

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