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BURMAN v. TRANS WORLD AIRLINES

September 13, 1983

JAY BURMAN, ET AL., PLAINTIFFS,
v.
TRANS WORLD AIRLINES, INC., ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

This is an action brought by thirteen flight officers employed by Trans World Airlines ("TWA") seeking injunctive relief against TWA and against the Air Line Pilots Association International ("ALPA"), the labor organization representing the pilot-employees, pursuant to the Railway Labor Act, 45 U.S.C. § 151, et seq. and 28 U.S.C. § 1337. Plaintiffs seek to enjoin the enforcement by TWA and ALPA of a provision contained in a collective bargaining agreement of April 7, 1982, that prohibits pilots from wearing beards.*fn1 Plaintiffs contend that ALPA violated its duty of fair representation. TWA and ALPA have moved for summary judgment. For the reasons hereinafter stated and after a careful consideration of the extensive record, including all pleadings, affidavits, exhibits, depositions, and answers to interrogatories, we find that there are no genuine issues of material fact in dispute and that both defendants are entitled to summary judgment as a matter of law.

I.

On March 31, 1982, eight TWA pilots sought a temporary and permanent injunction and/or temporary restraining order to enjoin TWA and ALPA from carrying out any enforcement of the collective bargaining agreement's provision for the removal of facial hair other than well-trimmed mustaches. (R. 1) On March 31, 1982, we granted a temporary restraining order which was once extended with the defendants' consent and which was dissolved on June 26, 1982. (R. 26) On April 26, 1982, TWA filed a motion to dismiss the action pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (R. 8) On June 10, 1982, we denied the defendants' motions to dismiss the complaint and we denied plaintiffs' motion for a preliminary injunction (R. 26) so that the parties could proceed with discovery, find out what happened during the negotiations, and determine whether there was adequate representation of the TWA pilots in the negotiations.

Subsequently, on December 6, 1982, TWA and ALPA moved for summary judgment on the grounds that there is no evidence on which plaintiffs can establish a breach of the duty of fair representation by ALPA regarding its conduct during the negotiation of the no-beard clause.

II.

The following facts are not in dispute. Prior to March 1978, TWA had in effect regulations governing the appearance of flight officers which, among other things, prohibited them from wearing beards of any description. In March 1978, in a grievance proceeding instituted by ALPA on behalf of a Captain H.E. Richards, the TWA-ALPA Pilots System Board of Adjustment issued an award in which it was determined by a 3-2 vote that TWA's rule prohibiting beards was unreasonable. ("Richards Decision") The Richards Decision stated that TWA had introduced insufficient evidence to show that the rule was necessitated by factors of either safety or customer acceptance. Thus, TWA was barred from enforcing any rule absolutely prohibiting facial hair from being worn by flight officers, but could only require that it be "neatly trimmed and maintained." On April 21, 1978, TWA issued a Policy Bulletin regarding Grooming Policy — Beards.*fn2

Negotiations between ALPA and TWA began on July 1, 1981 for the purpose of negotiating an extension of the Collective Bargaining Agreement due to expire on September 30, 1981. The parties exchanged opening proposals. At the initial session, TWA proposed a "no beard clause":

    The wearing of beards or other facial hair, with the
  exception of neatly trimmed and maintained sideburns or
  mustaches as described in FOP is prohibited.

The no beard clause was discussed at the bargaining sessions on July 28, October 5, October 15, and October 21. The clause was agreed to by ALPA and TWA on October 21, 1981, and signed off on October 22, 1981. Agreement on this no beard clause nullified the Richards Decision of March 1, 1978.

The parties continued negotiations on other matters in at least fifteen additional bargaining sessions, culminating in full agreement on all issues on February 4, 1982. Following "road show" meetings of the ALPA membership of TWA pilots held by ALPA at the various pilot bases to explain the provisions of the new agreement, ALPA's TWA Master Executive Council ratified it.*fn3 It was then executed by both parties.

III.

The following "facts" appear to be disputed. Whether they relate to genuine and material legal issues, Hall v. Printing and Graphic Arts Union, Local # 3, 696 F.2d 494 (7th Cir. 1982), we will consider later in this opinion.

Plaintiffs contend that on either October 15 or October 21, 1981, the Chairman of the Union Negotiating Committee, Wayne Haggard, went with Bill Hoar of the Company's Negotiating Committee outside of the bargaining room and when they returned to the room they announced "we just finalized the beard issue." Plaintiffs' Memorandum in Answer to Defendants' Motion for Summary Judgment at 2, # 5. ("Plaintiffs' Memo") TWA notes that this allegation appears only in ALPA negotiator Marchione's deposition at 27-28 and, even if true, creates no genuine issue since there is no legal requirement that all discussions must take place across a table with all the negotiating members present. Reply Memorandum of Points and Authorities in Support of Motion of Defendant Trans World Airlines, Inc. for Summary Judgment at 5, ¶ 5 ("TWA Reply Memo"). Further, TWA states that Marchione testified that the full committee agreed to accept the no beard clause (Dep. at 71) and that this was confirmed by ALPA chief negotiator Haggard (Dep. at 38).

Plaintiffs claim that the discussions regarding the no beard clause were no longer than 3-5 minutes in length in any one day. Plaintiffs' Memo at 4, ¶ 6. TWA states that this is not confirmed in any of the depositions and, even if true, it is not probative of misconduct, considering the relative simplicity of the no beards proposal and the length and complexity of the overall negotiating agenda. TWA Reply Memo at 5, ¶ 6.

Plaintiffs say that no TWA bearded cockpit personnel was disciplined for a violation of the personnel regulations which were in existence after the Richards Decision, nor were there any reported flight safety incidents due to facial hair from March 1978 to April 1, 1982. Plaintiffs' Memo at 4, ¶ 8. In reply, TWA states that the allegations are not material, that the safety implications of beards upon the effective functioning of flight crew masks is established by Kenneth C. Ensslin's affidavit and attached exhibits*fn4 and that ...


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