safety, nor was safety advanced by the Company as a rationale
for the no beards clause. Plaintiffs Memo at 4, ¶ 7. TWA
replies that TWA Chief Negotiator Kamm stated that, from TWA's
standpoint, safety was the rationale, and that although she may
not have used that very word during negotiations, she believed
everyone who was a party to the negotiations understood safety
to be TWA's reason for seeking the clause. TWA Reply Memo at 5,
¶ 7 (Kamm Dep. at 26, 37, 76, 81-83). Further, ALPA Negotiator
Marchione understood that the Company's objective was one of
safety. Id. (Marchione Dep. at 15) TWA claims, however, that
even if ALPA believed that TWA's desire to prohibit beards was
based on grooming or image considerations, its agreement to the
clause would not amount to intentional misconduct. Id. at
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 air
carriers are not required to defer action regarding potential
safety threats until after occurrence of an incident. TWA Reply
Memo at 6, ¶ 8.
Plaintiffs contend that members of ALPA's negotiating committee
opined that the Company wanted the no beard proposal accepted
because the Vice President of Flight Operations and other
senior management personnel wanted TWA pilots to be clean
shaven for image purposes. Plaintiffs' Memo at 4, ¶ 9. But TWA
notes that neither of the two ALPA negotiators who offered this
opinion did so on the basis of first-hand knowledge. TWA Reply
Memo at 6, ¶ 9 (Murphey Dep. at 80-81; Haggard Dep. at 11,
Plaintiffs' allegation that there was no specific quid pro
quo or trade-off on the no beard clause, Plaintiffs' Memo at
4, ¶ 11, is not considered a material fact by TWA since TWA
contends that there is no such requirement. TWA Reply Memo at
6, ¶ 11. Similarly, since there is no such requirement for
particular trade-offs, TWA considers it a nonmaterial fact that
no member of the union negotiating committee solicited any
active flight status TWA bargaining unit bearded cockpit
personnel as to advice or suggestions regarding the clause
after the company proposed it in July 1981.
TWA Reply Memo at 6, ¶ 13; Plaintiffs' Memo at 4, ¶ 13. TWA
also points out that plaintiffs Dolge and Liston were aware as
early as July 1981 that the no beard clause had been proposed
by TWA. (Answers to TWA Interrogatory No. 3)
The parties further differ as to whether some members of the
Union Negotiating Committee had serious reservations concerning
the validity or legality of the clause; plaintiffs asserting
that some members had serious reservations, Plaintiffs' Memo at
5, ¶ 14, and TWA asserting that no members had serious
reservations and that while each ALPA negotiator anticipated
that lawsuits might be brought by dissatisfied ALPA members, he
believed that such suits would be regarded as meritless. TWA
Reply Memo at 6, ¶ 14, citing Haggard Dep. at 34-35, 52-53;
Marchione Dep. at 43-45; Murphey Dep. at 57-58.
There is additional disagreement as to whether the Chairman of
the Negotiating Committee informed members at various LEC and
MEC meetings that there was a mediator present on the date the
clause was agreed to and he had stated, "The meter is running,
agree to the clause or you will be under a strike situation."
TWA notes that in both Marchione's and Haggard's depositions,
they denied making any such statements, TWA Reply Memo at 6, ¶
15, citing Marchione Deposition at 38-40; Haggard Deposition at
47-49, and that, in the event the statements were made it is
not a material fact since not related to the substance of the
agreement or ALPA's reasons therefor. Id.
The parties also differ regarding Chairman of the Negotiating
Committee Haggard's statements to plaintiff Burman at a meeting
held to explain the provisions of the new contract. Plaintiffs
allege that Haggard informed the members of MEC # 2 that he was
not going to give any reason why the clause was agreed to as he
was not going to try Burman's lawsuit at the meeting.
Plaintiffs' Memo at 5, ¶ 16. However, TWA explains that, faced
with the threat of a lawsuit, Haggard cannot be faulted for
refusing to engage in a public dialogue with Burman in which
his statements might be taken out of context. TWA Reply Memo at
7, ¶ 16, citing Haggard Dep. at 53-54.
Paragraph 17 of Plaintiffs' Memo quotes MEC member Tom Liston,
a plaintiff in this suit, at the February 18, 1982 ratification
meeting in San Francisco:
As unenthusiastic as I am with many of its provisions, I am
prepared to accept this contract as possibly the best that
could be had under the circumstances. It has many flaws, but,
with one ludicrous exception, it confines itself to essential
collective bargaining matters.
It is that one exception that I feel compelled to comment on.
I'm referring, of course, to the senseless prohibition against
the wearing of beards, which the negotiating parties have seen
fit to include in this working agreement. It emanates from a
prejudiced state of mind and has nothing whatever to do with
any legitimate consideration of productivity, efficiency or
compensation. It is an insult to my sense of personal freedom
and dignity, and I cannot over-emphasize the degree of
resentment I feel at having to give it credence by supporting
this contract package. I can assure you that, were we to ratify
on an item by item basis, I would, without hesitation, reject
this provision as an affront to my intelligence and as an
assault on the freedom of every TWA pilot. As it stands, I find
myself in the unhappy position of having to make a virtue of
Plaintiffs claim that this was an accurate portrayal of the
situation, that no members of the Negotiating Committee who
were present made any correction to Liston's statement, and
that the statement was overwhelmingly approved by the union
membership in attendance. Plaintiffs' Memo at 5-6, ¶¶ 17-18. TWA
answers that none of this is material; Liston's statement was
only his personal opinion and notwithstanding that he held it,
he stated he was prepared to "accept the contract." TWA Reply
Memo at 7, ¶¶ 17, 18. Further, TWA points out that the contract,
no beard clause, was approved overwhelmingly by the ALPA
membership in a nonbinding straw vote and ratified by the
ALPA-TWA Master Executive Council by a substantial majority.
Id., citing ALPA Memorandum in Support of Motion for Summary
Judgment at 5; Murphey Dep. at 95, 102.
The only legal issue in this case is whether ALPA breached its
duty of fair representation.*fn5 Thus, TWA and ALPA would be
entitled to summary judgment only if the above disputed facts
are not material and do not relate to the breach of this duty.
To determine whether this is so, we turn now to a discussion of
the duty of fair representation.
IV. DUTY OF FAIR REPRESENTATION
The duty of fair representation is a judicially created
doctrine enunciated by the Supreme Court in cases arising under
the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. § 151,
et seq., Steele v. Louisville and Nashville RR.,
323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), and then extended
to unions certified under the National Labor Relations Act.
Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97
L.Ed. 1048 (1953). The purpose of section 151a of the Railway
Labor Act, protection and promotion of collective bargaining,
is to encourage bargaining by railroads and their employees in
order to prevent, if possible, wasteful strikes and
interruption of interstate commerce. Detroit & Toledo Shore
Line RR. v. United Transport Union, 396 U.S. 142, 149, 90
S.Ct. 294, 298, 24 L.Ed.2d 325 (1969).
When Congress empowered unions to bargain exclusively for all
employees, it subordinated individual interests to those of the
unit as a whole, thereby imposing upon the unions the
correlative duty of fair representation. International Board
of Electrical Workers v. Foust, 442 U.S. 42, 46, 99 S.Ct.
2121, 2124, 60 L.Ed.2d 698 (1979). This duty obligates a union
to represent fairly the interests of all the members of the
bargaining unit. It is breached only when the conduct of the
union is "arbitrary, discriminatory, or in bad faith." Id. at
47, 99 S.Ct. at 2125; Vaca v. Sipes, 386 U.S. 171, 190, 87
S.Ct. 903, 916, 17 L.Ed.2d 842 (1967).
The Seventh Circuit standard of the duty of fair representation
has been clearly defined in several recent cases. See, e.g.,
Dober v. Roadway Express, 707 F.2d 292, 295 (7th Cir. 1983)
("[W]e reaffirm that the standard is intentional misconduct.");
Superczynski v. P.T.O.-Services, Inc., 706 F.2d 200, 202 (7th
Cir. 1983) (A union breaches its duty to fairly represent if it
acts deliberately and unjustly.); Graf v. Elgin and Eastern
Ry., 697 F.2d 771, 778 (7th Cir. 1983):*fn6
The union has a duty to represent every worker in the
bargaining unit fairly but it breaches that duty only if it
deliberately and unjustifiably refuses to represent the
worker. Negligence, even gross negligence . . . is not
enough; and, obviously, intentional misconduct may not be
inferred from negligence whether simple or gross.
In Dober, Superczynski, and Graf, the Seventh Circuit
reaffirmed the narrow standard to determine liability for
breach of the duty of fair representation defined earlier in
Hoffman v. Lonza, Inc., 658 F.2d 519, 520 (7th Cir. 1981)
("[T]he courts may enforce the duty of a union to fairly
represent an employee only when union conduct breaching that
duty is intentional, invidious, and directed at the
Motor Coach Employees v. Lockridge, 403 U.S. 274, 301, 91
S.Ct. 1909, 1925, 29 L.Ed.2d 473 (1971). These cases addressed
the union's duty of fair representation in the context of
administering the collective bargaining agreement by processing
a grievance. Here we are confronted by a case predicated upon
claims that the union breached its duty in negotiating a
collective bargaining agreement. The Supreme Court has
recognized this dichotomy by defining a different standard in
each of these two situations.
In Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97
L.Ed. 1048 (1953), plaintiffs claimed that their union breached
its duty of fair representation by agreeing to a contract
clause granting seniority credit to employees for time spent in
prior military service. A unanimous Court rejected this claim,
but recognized that the union is obligated "to represent all
members . . . and requires them to make an honest effort to
serve the interests of all those members without hostility to
any." Id. at 337, 73 S.Ct. at 685. The Court noted that in
contract negotiations negotiators have "discretion to make such
concessions and accept such advantages as, in the light of all
relevant considerations, they believe will best serve the
interests of the parties they represent." Id. at 338, 73
S.Ct. at 686.
The Court also observed that in contract negotiations "[t]he
complete satisfaction of all who are represented is hardly to
be expected" and warned that "[a] wide range of
reasonableness must be allowed a statutory bargaining
representative in serving the unit it represents, subject
always to complete good faith and honesty of purpose in the
exercise of discretion." Id. at 339, 73 S.Ct. at 686.
[Emphasis added.] The Court stressed that "[c]ompromises on a
temporary basis, with a view to long-range advantages, are
natural incidents of negotiations." Id.
Collective bargaining and union representation maximizes the
group interest and necessarily subordinates individual
interests and concerns. See Leffler, Piercing the Duty of
Fair Representation: the Dichotomy Between Negotiations and
Grievance Handling, 1979 U.Ill.L.F. 35, 36. Leffler notes that
the reasonableness standard (the Huffman "wide range of
reasonableness") is so easily met in the negotiations context
that a union may satisfy its duty of fair representation by
showing only that its motives were not improper, and that it
acted in good faith and with honesty of purpose. Id. at 40.
This is entirely proper because during contract negotiations
the employees' interest is based upon a generalized expectation
of better treatment from the acquisition of new rights, whereas
the employees' interest in the administration of an agreement
(e.g. grievance pursuance) is rooted in the contract. Thus,
unions should be and are held to a less exacting duty of fair
representation in contract negotiations than when administering
an agreement. See, e.g., Ford Motor Co. v. Huffman, supra,
345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048; Hendricks v.
Airline Pilots Association, International, 696 F.2d 673, 677
(9th Cir. 1983); Schultz v. Owens-Illinois, Inc.,
696 F.2d 505, 515 (7th Cir. 1982); Johnson v. Air Line Pilots in the
Service of Northwest Airlines, 650 F.2d 133, 137 (8th Cir.),
cert. denied, 454 U.S. 1063, 102 S.Ct. 614, 70 L.Ed.2d 601
(1981); Jones v. Trans World Airlines, 495 F.2d 790, 798 (2d
In Schultz v. Owens-Illinois, Inc., 696 F.2d 505 (7th Cir.
1982), the Seventh Circuit reiterated the Supreme Court's
standard of the duty of fair representation. The Schultz
facts are relevant to the instant case. There, prior to a 1971
collective bargaining session, both Owens and the Union
interpreted a clause in their previous agreement establishing
an Apprenticeship Program as requiring Owens to maintain a
ratio of one apprentice for every eight journeymen machinists
employed at Owens' plant in Godfrey, Illinois. During 1971,
Owens became concerned about the number of journeymen
machinists at the Godfrey plant and the high cost of
maintaining such a large number of employees in that
classification. To remedy this, Owens proposed to the Union
during contract negotiations in 1971 that the language of the
contract be changed so that the contract could not be
interpreted to require Owens to maintain this ratio. Based
upon the Union's chief bargaining representative's
understanding that the one-to-eight apprenticeship ratio was
discretionary and not mandatory, the Union negotiators and
Owens agreed to let the contract language remain unchanged. As
a result of these 1971 negotiations, Owens continued
essentially the same language in the Apprenticeship Article,
however with a new understanding that Owens was no longer
obligated to maintain any particular ratio. The Company decided
not to add any new apprentices to the program and to allow
apprentices already on the program to finish the program.
Subsequently, Schultz brought suit, alleging that the Union had
breached its duty of fair representation in agreeing to the new
interpretation of the Apprenticeship Article. The district
court granted the motions of the Union and Owens for a directed
verdict, relying in part on the lack of evidence of a breach of
the duty of fair representation by the Union. Schultz, 696
F.2d at 507. The Seventh Circuit affirmed. The court reiterated
that "when assessing the conduct of the union in the course of
negotiating with the employer, `a wide range of reasonableness
must be allowed'." Id. at 524-25, citing Ford Motor Co. v.
Huffman, supra, 345 U.S. at 338, 73 S.Ct. at 686. The court
further observed that:
The major goal of the duty of fair representation is to
identify and protect individual expectations as far as possible
without undermining collective interests. Where the individual
and collective group interests clash, the former must yield to
the latter. When collective bargaining agreements are executed,
there may be many provisions which lead individual employees to
believe they are entitled to specified benefits but, in the
final analysis, the collective group interests must remain
paramount. The nature of any labor policy requires an election
between preserving group interests through democratic processes
and adopting external restraint to protect the minority.
Alvey v. General Elec. Co., 622 F.2d 1279,1289 (7th Cir.
1980) (quoting Tedford v. Peabody Coal Co., 533 F.2d 952,
956-57 (5th Cir. 1976); accord Williams v. Western Elec. Co.,
530 F. Supp. 481, 486 (N.D.Ill. 1981).
Schultz, 696 F.2d 505, 516 n. 14.
Recently, in two other circuits, pilots have sued ALPA for an
alleged breach of the duty of fair representation in
negotiating a collective bargaining agreement. See Hendricks
v. Airline Pilots Association, International, 696 F.2d 673
(9th Cir. 1983); Johnson v. Air Line Pilots in the Service of
Northwest Airlines, Inc., 650 F.2d 133 (8th Cir.), cert.
denied, 454 U.S. 1063, 102 S.Ct. 614, 70 L.Ed.2d 601 (1981).
In Hendricks, the pilots complained that the union breached
its statutory duty of fair representation in negotiating an
agreement that released United Air Lines from a "contract"
whereby pilots agreed to work during their vacation periods in
return for additional compensation. In Johnson, the pilots
claimed that ALPA breached its duty of fair representation in
negotiations with Northwest Airlines and by its acceptance of a
collective bargaining agreement which did not extend the
seniority rights or rights of recall of certain employees.
In both cases, the district courts had granted summary judgment
to ALPA and the airline. These judgments were later affirmed by
the Eighth and Ninth Circuits. Both circuits noted the delicate
balance between the interests of the majority of the Union and
those of the minority. Hendricks, supra, 696 F.2d at 677;
Johnson, supra, 650 F.2d at 137. A union has wide discretion
in its representation of the bargaining unit and, if acting in
good faith, will not be held in breach of its duty simply
because some parties are disadvantaged by its actions; because
of the majoritarian bias inherent in collective bargaining,
there must be some sacrifice of individual freedom. Id.
These decisions, of course, are not binding on this court.
However, because of the great factual similarities and both
courts' well-reasoned approach, we find Hendricks and
Johnson most persuasive. In the context
of collective bargaining, especially, the concept of the
greatest good for the greatest number,*fn7 see J.S. Mill, ON
LIBERTY, is particularly apt.
Applying the Supreme Court's, the Seventh Circuit's and other
circuit's analyses of the duty of fair representation in the
context of collective bargaining negotiations, we now address
the allegedly "disputed facts" in paragraphs 5, 6, 7, 8, 9, 11,
13, 14, 15, 16, 17, and 18 of Plaintiffs' Memo. We bear in mind
that the plaintiffs, as the nonmoving party, are entitled to
all reasonable inferences in their favor, but they must
demonstrate that there are issues that must be decided at trial
in order to defeat a motion for summary judgment. See BA
Mortgage and International Realty Corp. v. LaSalle National
Bank, 535 F. Supp. 435 (N.D.Ill. 1982). While the burden is on
the party moving for summary judgment to show that there is no
issue of material fact in dispute, Dreher v. Sielaff,
636 F.2d 1141 (7th Cir. 1980), an issue of fact is not material
unless it has legal probative force as to the controlling
issue. Western Transportation Co. v. Wilson & Co.,
682 F.2d 1227 (7th Cir. 1982).
Paragraph 5. Even if the beard issue was allegedly "finalized"
outside of the bargaining room, this is not a material fact.
This allegation does not give rise to an inference of a breach
of the duty of fair representation. It is undisputed that the
clause was discussed at four other bargaining sessions and
ratified by the full negotiating committee. Moreover, since
collective bargaining negotiations are, by their very nature, a
give and take process, restrictive formalities are not
conducive to efficient bargaining. Thus, there is no
requirement that "finalization" take place within the actual
Paragraph 6. The length of the discussions regarding the beard
proposal is immaterial and not probative, especially
considering the length (July 1, 1981 until February 1982) and
complexity of the overall agenda (including the hours and
locations of company layovers, the furnishing of hotel rooms,
standby rules, rules for upgrading from copilot to captain and
the time required for flying with one type of check pilot, and
Paragraph 7. There is some disagreement among the parties
concerning whether TWA's desire to prohibit beards was based on
safety or grooming and image considerations. However, we do not
find this dispute material to the legal issue. Given the "wide
range of reasonableness," Ford Motor Co. v. Huffman, supra,
345 U.S. at 339, 73 S.Ct. at 686, that must be afforded the
bargaining representative, ALPA's accession to TWA's proposal
does not violate the duty of fair representation; it does not
indicate bad faith or rise to the level of intentional
misconduct. There is undisputed evidence that the negotiations
took place in an atmosphere different than previous years. The
impact of the downturn of the nation's economy and the
deregulation of the airline industry*fn8 was acutely felt by
all the airlines. The negotiators believed that in this round
of negotiations it was the era of the "give-back," Haggard Dep.
at 24, and that in giving up beards they would be able to make
inroads in other areas. Marchione Dep. at 70.
Where there is no evidence of hostility, discrimination,
intentional misconduct, or bad faith, a court should be very
reluctant to second guess the parties to good faith, arms
length bargaining negotiations. Here, the evidence indicates
that ALPA's decision to agree to the no beards proposal
"reflected a proper resolution of conflicting but legitimate
interests," see Alvey v. General Electric Co., 622 F.2d 1279,
1289 (7th Cir. 1980), and that ALPA exercised "complete good
faith and honesty of purpose in the exercise of its
discretion." See Schultz v. Owens-Illinois, Inc., supra, 696
F.2d at 515, citing Ford Motor Co. v. Huffman, 345 U.S. 330,
338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953).
Plaintiffs' allegations of hostility and discrimination*fn9
are insufficient to preclude summary judgment for defendants.
Accepting plaintiffs' version of the facts, there is no factual
support for these allegations. Indeed, in paragraph 8 of
Plaintiffs' Memo, plaintiffs observe that no bearded TWA
cockpit personnel was disciplined for violation of the
personnel regulations in existence after the Richards Decision.
Nor have plaintiffs shown any motive to "do them in." A
conclusory allegation is not sufficient to raise genuine issues
of material fact. Hall v. Printing and Graphic Arts Union,
Local # 3, 696 F.2d 494, 500 (7th Cir. 1982). The mere
possibility of discrediting one's opponents' denials at trial
does not present an issue of fact that will defeat summary
judgment. Weit v. Continental National Bank & Trust Co. of
Chicago, 467 F. Supp. 197, 208-09 (N.D.Ill. 1978), aff'd,
641 F.2d 457 (7th Cir. 1981), cert. denied, 455 U.S. 988, 102
S.Ct. 1610, 71 L.Ed.2d 847, reh'g denied, 456 U.S. 938, 102
S.Ct. 2001, 72 L.Ed.2d 461 (1982).
The so-called disputed facts in paragraphs 9, 11, 13, 14, 15,
16, 17 and 18 are not enough to defeat defendants' motion for
summary judgment since they are not material to the legal issue
in this case. See Terket v. Lund, 623 F.2d 29 (7th Cir.
1980). Accordingly, as there is no material factual issue in
dispute and there is no evidence of the requisite intentional
misconduct or bad faith, the "wide range of reasonableness"
standard authorizes the grant of summary judgment to ALPA and
The duty of fair representation does not create freewheeling
jurisdiction for us to reevaluate union decisions, James v.
United Air Lines, Inc. and Air Line Pilots Association,
567 F. Supp. 1467 (D.Colo. 1983), or for us to engage in splitting
hairs. And we are hesitant to second-guess the merits of a
union's decision, especially in a situation where the union
felt pressured to maintain current salary levels and working
conditions and feared that "give-backs" might be necessary.
Mindful that a trial court must exercise extreme caution in
summary judgment proceedings where intent and motive are at
issue, nevertheless, we have thoroughly examined the many
affidavits and exhibits of both parties and can find no factual
support for plaintiffs' assertions of discrimination,
hostility, bad faith, and intentional misconduct which might
constitute a breach of the duty of fair representation.
All of this is not to suggest that we agree with the "no
beards" policy. Given the widespread sporting of beards by
males in every walk of life, it probably is an unnecessary
intrusion in what should be a personal decision. On a previous
occasion, we noted the erratic history of the exercise of power
by the possessors thereof with respect to beards.*fn10 We
pointed out that during
the Civil War, all Union officers were required to wear full
beards. We did this in the course of granting a preliminary
injunction to an Army reservist who was being ordered to active
duty because he refused to remove his beard.
While the policy may be ludicrous and stupid, as pilot Liston
characterized it, even though a number of airlines have it and
ALPA has agreed to its inclusion in other contracts, it does
not violate any statutory or constitutional prohibition against
discrimination. Nor, as we have found, did ALPA breach its duty
of fair representation. Employers and representatives of
employees are free to negotiate conditions of employment which
may seem unwise or even ludicrous to some employees. But unless
the contract provisions violate some statutory or
constitutional prohibition or the union representatives in
negotiating them are guilty of deliberate misrepresentation or
misconduct, they are enforceable. The employees' remedy rests
in changing their leadership and representatives and
renegotiating the objectionable contract provision at the next
collective bargaining opportunity.
For the reasons stated, summary judgment is granted to TWA and
ALPA. An order to that effect will be entered.