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October 6, 1983


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


Plaintiffs, United Independent Flight Officers, Inc., and certain of its members, William J. Plank, L. Frank Murphey, Thomas C. Cook, N. Wayne Hughes, Jack W. Parshall, H. Harvey Hunter, Harry J. Langosh, George Norwood, Robert M. Schisler and LeRoy A. Shaver, have filed this action against United Air Lines ("United") and the Air Line Pilots Association, International ("ALPA") pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA") and the Railway Labor Act, 45 U.S.C. § 151 et seq., as applied to air carriers under 45 U.S.C. § 181. Presently pending before the Court are plaintiffs' motion for class certification and ALPA's and United's motions for summary judgment. For reasons set forth below, plaintiffs' motion for class certification is denied. United's and ALPA's motions for summary judgment are granted.


The named plaintiffs are members of UIFO, an organization comprised of current and former United employees who were or have been pilots. All of the named plaintiffs except Murphey are retired from United. The subject matter of the present litigation is a pension plan known as the United Air Lines, Inc. Pilots' Fixed Benefit Retirement Income Plan, effective January 1, 1976 ("the plan"), which is incorporated into the collective bargaining agreement between United and ALPA. The present plan was preceded by a voluntary fixed benefit plan which was in effect from January 1, 1941, through December 31, 1964 ("the pre-1965 plan"). In this employee-contributory plan, participation was voluntary; participation credit was not given for periods during which a pilot chose not to contribute.

On January 1, 1965, United undertook to fund the plan completely. Prior employee contributions, however, were not refunded. For employees who began working for United after January 1, 1965, the number of years of participation in the plan is the same as the number of years of service minus one, since participation in the post January 1, 1965, fixed plan became automatically effective after a year of continuous employment. Participation credit of years before 1965 remained dependent upon whether the pilot was eligible to participate and had chosen to make voluntary contributions.

In early 1972, United and ALPA agreed to change the benefit accrual formula used to calculate annual retirement income under the post January 1, 1965, plan. The number of years of participation in United fixed benefit plans was multiplied by 1.2% (later 1.25% and presently 1.3%) times "final average earnings." (Final average earnings are one-fifth of the earnings on the sixty consecutive months of a participant's last 120 months of employment with United which produce the highest sum). For pilots hired since January 1, 1965, their years of service minus one equals years of participation, but for many pilots employed by United from 1941 through 1964, years of service minus one are not the same as years of participation for purposes of the benefit accrual formula under the present plan. Thus, with regard to pilots hired between 1941 and 1965, the amount of retirement benefits would vary according to the extent of a pilot's voluntary participation in the Original Fixed Plan.

Plaintiffs seek to credit all plan participants with all of their years of service with United minus one, claiming that pilots hired prior to 1965 were never given notice that failure to participate continuously in the pre-1965 plan would adversely affect their retirement benefits. Plaintiffs also want a refund of all voluntary contributions made under the pre-1965 plan. They have moved to certify claims under Counts I, II and IV as a class action pursuant to Fed.R.Civ.P. 23. Class certification is not available for Count III, which is brought pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.*fn1 Additionally, plaintiffs seek certification with respect to two subclasses

    (1) All pilots hired by United Air Lines, Inc.
  before January 1, 1965 and who did not participate in
  the original fixed pension benefit plan on a
  continuous basis and who either retired after January
  1, 1976 or are still working for United.
    (2) All pilots who ever made contributions into the
  original fixed plan and who retired after January 1,

I. The Motion for Class Certification

A plaintiff has the burden of proving that a case is appropriately a class action and fulfills all of the requirements in Fed.R.Civ.P. 23. Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976). A trial court has broad discretion in determining whether a class action may be maintained and whether subclasses should be created as well. In re General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1129 n. 38 (7th Cir. 1979), cert. denied, 444 U.S. 870, 100 S.Ct. 146, 62 L.Ed.2d 95 (1979). A decision of a district court as to class representative satisfaction of Rule 23 prerequisites will only be set aside for abuse of discretion. Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir. 1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981). In resolving the instant motion, class certification is a procedural matter, and we are not to consider the merits of the case. Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923-24, 66 L.Ed.2d 842 (1981). See also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974). It is with these standards in mind that we turn to the question of whether plaintiffs have met the requirements of Fed.R.Civ.P. 23.

Rule 23(a) contains four prerequisites to bringing a suit as a class action:

  (1) the class is so numerous that joinder of all
  members is impracticable, (2) there are questions of
  law or fact common to the class, (3) the claims or
  defenses of the representative parties are typical of
  the claims or defenses of the class, and (4) the
  representative parties will fairly and adequately
  protect the interests of the class.

1. Numerosity

Plaintiffs assert that over two thousand current and retired United pilots are members of the proposed class, and that joinder is therefore impracticable. Defendants argue, inter alia, that since only approximately two hundred persons have chosen to "opt in" to the ADEA count, joinder is indeed practicable. They add that the crucial inquiry under Rule 23(a)(1) is the practicality of joinder, which requires consideration of the size of the class, ease of identifying its members and their addresses, ease of service and geographic dispersion. These factors are indeed relevant. Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923-24, 66 L.Ed.2d 842 (1981); 3 B Moore's Federal Practice ¶ 23.05 (2d ed. 1979). We believe, however, that plaintiffs have satisfied the numerosity requirement of Rule 23(a)(1). It is undisputed that 1,500 to 1,800 pilots contributed to the benefit plan prior to 1965. Moreover, the class members are widely dispersed geographically. Finally, the individual claims of certain class members may be too small to warrant individual actions, since participation in the benefit plan prior to 1965 varied widely among plaintiffs. This is a factor to be considered when examining the practicability of joinder. Swanson v. American Consumer Industries, Inc., 415 F.2d 1326, 1333 n. 9 (7th Cir. 1969).

2. Commonality

This factor requires us to consider whether there are questions of law or fact common to the class. The Seventh Circuit has observed that such an inquiry is ordinarily not a difficult matter. Eggleston v. Chicago Journeymen Plumbers, Local Union No. 130, 657 F.2d 890, 895-96 (7th Cir. 1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982). We agree with plaintiffs that there are several common issues in the present matter, both factual and legal. All members of the proposed class are or were pilots and members of the pilot fixed benefit plan. While damages may vary among class members, the benefit accrual formulas involved in this matter may have adversely affected all class members. Differences in the amount of damages suffered by members of a class are not a reason to deny class certification. Evans v. City of Chicago, 522 F. Supp. 789, 806 (N.D.Ill. 1980), aff'd in part, vacated in part, 689 F.2d 1286 (7th Cir. 1982). Plaintiffs raise common issues of law under § 204(b)(1) and § 404(a) of ERISA, as well as the question of whether ALPA breached its duty of fair representation under the Railway Labor Act, 45 U.S.C. § 181 et seq. We thus conclude that there are issues of fact and law common to the members of the class.

3. Typicality

The third prerequisite for class certification is that the claim of the representative parties be typical of the claims of the class. We must therefore decide whether the named representatives' claims have the same essential characteristics as the claims of the class at large; this requirement may be satisfied notwithstanding factual distinctions between the claims of the named plaintiffs and those of other class members. DeLaFuente v. Stokely-Van Camp, Inc., 713 F.2d 225 at 232 (7th Cir. 1983). A named plaintiff's claim is typical if it arises from the same event or course of conduct giving rise to the claims of other class members and his or her claims are based on the same legal theory. Resnick v. American Dental Assn., 90 F.R.D. 530, 539 (N.D.Ill. 1981).

Defendants make several arguments challenging the typicality of the named plaintiffs vis-a-vis the class. But the fact that each pilot's case may require individual examination to determine the extent of his injury reflects a mere factual distinction and does not mean that the plaintiffs' claims lack the necessary typicality. The same result is true despite the differing degrees of voluntary participation among pilots ...

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