The opinion of the court was delivered by: Bua, District Judge.
The above-captioned matter came before the Court for trial on
the merits of plaintiff's complaint. The Court, having heard
testimony June 17 through June 28, 1985, and having reviewed
deposition designations, exhibits and memoranda submitted by the
parties, does hereby enter the following findings of fact and
conclusions of law pursuant to Rule 52(a) of the Federal Rules of
2. On May 17, ALPA filed motions for preliminary injunction and
for expedited discovery. The Court granted ALPA's discovery
motion, also requiring that ALPA submit to expedited discovery by
United. The Court scheduled a hearing on ALPA's motion for
preliminary injunction for June 10, 1985. Subsequently, the
hearing was rescheduled to June 17, 1985.
3. On May 28, 1985, United filed a motion to strike ALPA's
claim for injunctive relief. United asserted that ALPA was not
entitled to injunctive relief under section 8 of the
Norris-LaGuardia Act, 29 U.S.C. § 108, because ALPA had failed to
accept the proffer of arbitration by the National Mediation Board
("NMB") on April 16, 1985, after United had rejected the proffer.
On June 7, 1985, the Court denied United's motion. See Memorandum
Order, June 7, 1985, 610 F. Supp. 243.
4. On June 14, 1985, the United Air Lines Master Executive
Council ("UAL-MEC") for the United pilots ratified a tentative
agreement that had been reached between the negotiating
committees for United and ALPA, thus ending the strike. The
back-to-work agreement, which was ratified together with the
basic economic agreement, provided in part:
The Association and the Company agree that neither
will engage in or condone any activities which might
constitute reprisals or recriminations as a result of
the ALPA strike. The Company will withdraw all
Letters of Charge and all disciplinary actions taken
against pilots for strike-related activities and will
not take any further action against ALPA or pilots
for strike-related activities. ALPA agrees not to
level fines or take other disciplinary action against
nonstriking pilots. ALPA's claims regarding the "500"
pilots, system rebid and salaries for pilots hired as
"fleet qualified" will continue to be pursued by ALPA
in Federal Court. The parties agree to a plenary
trial commencing June 13, 1985. Should there be any
appeals both parties will agree to an expedited
appeal. The parties will drop all other strike
related litigation or arbitration.
Pl.Ex. 43 at ¶ 14 (emphasis added).
5. ALPA is an unincorporated labor organization and is the duly
certified exclusive collective bargaining representative under
the RLA, for the air line pilots employed by United. Stipulation
of Uncontested Facts ("Stipulation") at ¶ 1. Henry A. Duffy is
the President of ALPA.
6. Representation of United pilots is controlled by the UAL-MEC
which consists of three elected members from each of the nine
pilot domiciles. Tr. 1253. Roger Hall is the Chief Executive
Officer of UAL-MEC. UAL-MEC's chief negotiator is William C.
Brashear, and the Chairman of ALPA's United Pilots Strike
Committee is Frederick C. Dubinsky.
7. United is a corporation duly organized and existing under
the laws of the State of Delaware, having an office and place of
business in the Township of Elk Grove, Cook County, Illinois.
United is an air carrier as defined in the Federal Aviation Act
of 1958, as amended (49 U.S.C. § 1301-1542), holding
certificates of public convenience and necessity issued pursuant
to that Act, under which certificates it operates an airline
system for the carriage by air of passengers, property and mail
in domestic, overseas and foreign commerce. As such, United is a
"carrier" as defined by
45 U.S.C. § 181, and is subject to the provisions thereof.
Stipulation at ¶ 2.
8. United's Chairman and Chief Executive Officer is Richard J.
Ferris and its President is James J. Hartigan. United's chief
negotiator is David Pringle, and James Guyette is Chairman of
United's Operations Adjustment Task Force. Lloyd W. Barry is
Senior Vice President of Flight Operations.
9. United's airline system is the largest domestic carrier in
the United States. United serves more than 150 cities in the
United States, including Chicago, and approximately 10 cities in
5 foreign countries and territories, and has operating routes
extending over approximately 500,000 route miles. United has a
fleet of over 300 aircraft owned and leased. Stipulation at ¶ s
10. In its air transport operation, United employs over 48,000
persons. Among these are some 9,000 persons employed in the craft
or class of flight attendants represented for the purpose of
collective bargaining under the RLA by the Association of Flight
Attendants ("AFA") and approximately 15,000 persons employed in
various crafts and classes represented by District 141,
International Association of Machinists and Aerospace Workers
("IAM"). United, AFA and IAM are currently parties to existing
collective bargaining agreements. Stipulation at ¶ 4.
B. Events Preceding the Strike
11. For many years ALPA and United have been parties to
successive collective bargaining agreements. The agreement in
effect prior to the strike had been in effect since October 1981
and contained the following duration clause:
This Agreement shall continue in full force and
effect until October 1, 1983 and shall renew itself
without change each succeeding October 1 thereafter,
unless written notice of intended change is served in
accordance with Section 6, Title I, of the Railway
Labor Act, as amended, by either party at least sixty
(60) days prior to October 1, 1983 or any year
thereafter upon written notice of either party
Pl.Ex. 1, Section 22 at ¶ C. The parties later extended the
October 1, 1983 date to April 1, 1984 by agreement.
12. On January 30, 1984, United served an opening letter under
Section 6 of the RLA upon ALPA. Tr. 948; Def.Ex. 146. In turn,
ALPA served its own Section 6 Notice upon United stating its
various proposals for modifications to the 1981 Agreement. Tr.
955; Def.Ex. 145. Issues signaled for negotiation included, inter
alia, compensation for incumbents, new-hire rates and the method
for assigning cockpit seats to pilots. Def.Exs. 145 and 146.
These proposals are known as "Section 6 Openers" in that they
commenced the process for amendment of the 1981 Agreement
provided in Section 6 of the RLA, 45 U.S.C. § 156.
13. Prior to the Airline Deregulation Act, P.L. 95-504, 92
Stat. 1705, the commercial airline industry was regulated as to
its route structure, rates it could charge passengers, and the
like. During the regulated era, United (and other trunk carriers)
had little economic incentive to seek to contain pilot labor
14. As negotiations progressed during 1984, it became clear to
the parties that the most difficult issue before them was
United's request that ALPA agree to a new, reduced pay scale to
apply to pilots hired during the term of the potential new
agreement. This pay scale issue has been referred to as the
"new-hire pay scale." United's objective in its negotiations with
ALPA was to secure what was, in United's judgment, a "cost
competitive" agreement with ALPA. Tr. 442-43. United was
concerned that its competitors, especially American Air Lines,
benefitted from lower pilot costs. Tr. 946; 1012. Although United
made an operating profit of more than $500 million in 1984 (Tr.
508), it had incurred operating losses for the previous five
years. Tr. 1015; Def.Ex. 146.
15. In August 1984, mediators from the NMB entered the
collective bargaining negotiations. Tr. 962.
16. In the fall of 1984, United began to plan for the
possibility of a strike by the pilots. United created a task
force to develop a plan to operate in the event of a pilots'
strike. The flight operations aspect of the planning was
committed to the direction of Captain Lloyd Barry, who had become
Senior Vice President of Flight Operations in March 1984. Tr.
234, 299, 380. Barry was assisted by Rakesh Gangwald, a systems
analyst who was brought in to aid Barry in developing
administrative business processes for flight operations. Tr. 376.
17. United's flight operations strike plan was called the
"operations adjustment plan." Pl.Ex. 22; Tr. 301. United was
aware that its operations adjustment plan might not create enough
pressure to force ALPA to settle on United's terms prior to May
17. United believed that, if a strike took place, the plan would
break the strike, and thereby force ALPA to settle on terms
preferred by United. Tr. 302-4. The breaking of the strike and
forcing of a settlement was the objective of United's flight
operations adjustment plan. Id.; Tr. 343. The elements of this
plan were regarded by United as so "stern or unusual" (Tr. 534)
that, if a strike occurred, there would be a "stampede" of pilots
to the United side. Tr. 464. United believed that it could break
the strike in two to four days. Tr. 302-3; Pl.Ex. 22. Ferris
believed that United would secure its objective:
You know what's going to happen, if we have this
withdrawal of service, what's going to happen is
eventually the membership is going to be fed up
enough — it's the old story, throw the rascals out,
put a new one in; we negotiate to come back on the
Tr. 470, Videotape of O'Hare Domicile Meeting, May 2, 1985.
18. Also in the fall of 1984, United began to experience a
shortage of pilots for its desired flight schedule. Tr. 41, 1011.
19. Prior to the fall of 1984, United last hired new pilots
during the period between 1977-79. Stipulation at ¶ 33; Tr. 102.
Approximately 800 pilots were hired in that time. Tr. 34. Those
individuals were brought into United in order to serve in the
entry-level position of second officers. Stipulation at ¶ 33; Tr.
34, 38, 41.
20. Prior to the fall of 1984, United's practice was to employ
student pilots from the first day of training. Stipulation at ¶
33; Tr. 40, 337-38. Training of student pilots was conducted in
accordance with rules in the 1981 Agreement, whether or not the
student pilots were being trained with incumbent pilots. Tr. 104,
143. Student pilots were paid at rates established in the 1981
Agreement. Tr. 339. Pursuant to the 1981 Agreement, the student
pilots accrued pilot seniority from their first date of hire as
student pilots. Pl.Ex. 1, Sec. 6(A)(1), p. 35.
21. During United's hiring of student pilots in the period 1977
to 1979, when Initial Operating Experience ("IOE") was a domicile
activity, student flight officers were: (1) provided tentative
pilot seniority numbers on their first or second day of training
at Denver, conditioned upon the successful completion of training
and receipt of an assignment to the line for second officer duty;
(2) assigned to the line for second officer duty upon completion
of the Denver training program; (3) provided final seniority
numbers at the time of their completion of training and
assignment to the line for second officer duty; and (4) had their
IOE at their assigned domicile subsequent to the above stated
events. Tr. 731. In 1978-79, individuals hired for student pilot
positions became line pilots with final seniority numbers on the
United pilot system seniority list upon the completion of
training and prior to beginning IOE. Tr. 630-631, 646, 731;
Pl.Ex. 47. Less than 1% of pilots who completed their training in
1977-79 failed to complete their IOE. Court Ex. 1 at ¶ 45.
22. During the fall of 1984, while United was negotiating with
ALPA as to the new-hire pay scale, United did not want the
new hires "on the property" while the negotiations were in
progress because, in its view, that would make it more difficult
for ALPA to agree to a reduced new-hire scale. Tr. 340-41. In
addition, United did not wish to pay new hires at the incumbent
rates provided in the 1981 Agreement. Tr. 42, 339. Accordingly,
United decided that it would "pretrain" several hundred
"applicants," who would be offered "formal employment" once
United had secured a cost competitive agreement with ALPA. Tr.
45, 112, 231, 340, 484, 1122-23. During this time, United was
unable to expand and lost market share. Tr. 484-85.
23. Beginning in November of 1984, United interviewed and
selected approximately 600 candidates for its training program.
Tr. 45 ("the Group of 500" or "student pilots"). Approximately 8
applicants were screened for each of the student pilots selected.
Tr. 113. A "considerable amount of money" was spent to conduct
the selection, which included interviews, psychological testing,
and evaluation at the controls of United's aircraft cockpit
simulators in Denver. Tr. 43-44.
24. As the student pilots were selected for United training,
they were required to execute a form described as a "Flight
Officer Training Agreement." E.g. Def.Ex. 140. In the forms, the
student pilot agreed that he or she would receive United flight
officer training "without charge for tuition" and would receive
"$30 per day for expenses for the duration of my training
period." The student pilot further was required to agree that
"[d]uring this training, I understand that I will not be an
employee of United Airlines and will receive no compensation from
United other than expense money." The agreement further provided:
I understand that graduates of Flight Officer
Training will constitute a pool of trained candidates
for Flight Officer employment, which United Airlines
may employ, if needed, within twelve months of
graduation. I understand that in order to be offered
such employment, that I must continue to meet the
requirements and qualifications for the flight
It was also agreed that United could terminate the training or
employment without notice or liability. Def.Ex. 140. The student
pilots were expected to provide their own lodging and meals out
of their expense money. Pl.Ex. 5 at p. 4. United informed the
Group of 500 that they would be offered employment by class date
(the date their initial training commenced). Tr. 155, 199.
25. The training consisted of initial training and four to five
days of refresher training. Court Ex. 1 at ¶ 44. As they were
selected, the student pilots entered a three-week second officer
training program at United's Denver Training Center. They were
trained on a schedule determined by United which resulted in a
more condensed training period than was customary at United in
the past. Tr. 136. During their initial training, the student
pilots were measured for their uniforms, which were later ordered
for them approximately a month before May 17, 1985. Tr. 109.
United generated a list of tentative seniority numbers for the
student pilots, ranked in order of their class dates, and, within
the classes, their Social Security numbers. Court Ex. 1 at ¶
43.2; Pl.Ex. 90. It was United's intent that the student pilots
"accepting employment when offered will receive a short refresher
course and IOE [initial operating experience]." Pl.Ex. 5 at p. 3.
Training, however, would be complete upon conclusion of the
refresher course, prior to IOE. Court Ex. 1 at ¶ 44. This break
in training, resulting in use of a short refresher course, and
the fact that the training course took less time than in the
past, were additional differences from United's previous training
program for new hires. Tr. 135, 137.
26. Only 2% of the total number of student pilots failed to
complete initial training. Tr. 120. Upon completion of their
initial training, the Group of 500 was provisionally qualified to
serve as United second officers, lacking only their IOE to become
fully qualified to engage in line flying. Pl.Ex. 42; Tr. 159.
27. On about April 20, 1985, United offered second officer
employment to approximately 375 members of the Group of 500 who
had successfully completed initial training. Tr. 48, 49; Pl.Ex.
8. The offers were effective May 17, 1985, whether or not there
was a strike, at $1,800 per month for 81 hours, and stated that
the four-day refresher course would start as early as May 3,
1985. Stipulation at ¶ 38; Tr. 48, 49; Pl.Ex. 8. In order to
accept United's offer, the recipient was required to respond by
telephone no later than April 24, 1985. Pl.Ex. 8. Approximately
325 of the recipients accepted and were scheduled for their
refresher courses to commence at various dates commencing May 3,
1985. Tr. 50, 149; Pl.Ex. 9 (as modified by Def.Ex. 79A). The
student pilots then received a mailing from United's Director of
Flight Standards and Training, William Traub, stating that "I am
sure you are looking forward to beginning your career as a United
Airlines Second Officer as much as we are." Pl.Ex. 6. Traub
enclosed with the letter a package of home study material to be
completed prior to refresher training and several written tests.
The letter advised the recipient that his change to "permanent
status will occur on May 17, 1985 or on the day you enter
training whichever is later." Id. at p. 2.
28. In addition to the Traub letter, the student pilots who
accepted United's April 20 offer were sent a further confirming
letter by the Manager of Flight Employment, Raymond Boyle. E.g.,
Pl.Ex. 12; Tr. 51-52. The letter confirmed that employment would
be effective May 17, 1985, specified a date for resumption of
training prior to May 17, and requested that the recipient report
on the date training would resume. Pl.Ex. 12; Tr. 50-52. The
recipient was also requested to complete a package of employment
forms which were enclosed with the letter. Pl.Ex. 12; Tr. 52.
29. Most of the Group of 500 were given employment dates of May
17, 1985. Tr. 47. Some of the Group of 500 who were offered jobs
in United's mailgrams (Pl.Ex. 8) were initially scheduled for
refresher training to begin after May 17, 1985. Believing that
the later starting dates might create seniority conflicts, United
sent another mailgram on May 4 to the small group of student
pilots whose refresher and training had been scheduled after May
17. Def.Ex. 76, This mailgram, unlike Pl.Ex. 8, specifically
required that "[t]o accept our offer, you must be able to report
to work in Denver on May 17." Def.Ex. 76.
30. As the strike deadline of May 17 approached, United
addressed a letter to the Group of 500 specifically requesting
that they report "at 0800 hours" to the Denver Flight Training
Center on May 17. Def.Ex. 77. The letter, however, was mailed
after prior offers had been accepted. Pl.Ex. 6, 12, 9. The letter
was to "make it absolutely clear everybody got the same message
and would be reporting at the same place." Tr. 92.
31. When United first offered employment to the Group of 500,
it did not hire them to serve as "crossovers" in a pilot strike.
Tr. 50. For example, Brent Barrett, one of the Group of 500, was
told by United, when offered employment on April 20, that "it is
up to you" whether he honored a picket line in the event of a
strike. Tr. 204. Barrett was previously told that United did not
want to put the new-hire pool on the line until it "had a
contract" with ALPA. Tr. 231. Daniel Petrovich, another member of
the Group, had been told by United that he would not be asked to
"cross the picket line." Tr. 158.
32. As the May 17 strike deadline approached, however, United
began to view the Group of 500 as a pool of trained replacements
for striking pilots. Thus, United told the Group that if they did
not work on May 17, they would not work for United in the future.
Tr. 342, 170. United officials also told members of the Group
that Ferris had already decided that they would "never work for
United Air Lines if we didn't show up on the 17th" of May. Tr.
210. They were told that "if they don't
cross the picket line and go to work on the 17th, you will never
work for United Air Lines." Tr. 171. Some of the Group of 500
were told that if they did "take the job," complete their
training and then join the strike, they "would not make it
through their probation year" as pilots. Tr. 168-69. Prior to the
strike, Ferris personally told United's TCAs in Denver,
We have got 500 pre-hires, right? Those pre-hires are
all going, they've been given notice, and come 0001
May 17, they're employed, boom. If they don't show up
to work, they will never, ever, work for this air
line, ever, because they're not on the property, they
won't have a number, they don't have anything.
33. As of May 17, 1985, under this training program,
approximately 600 individuals were selected for training by
United. Tr. 35, 135-36, 365. United issued seniority numbers,
however, only to those of the Group of 500 who reported to work
on May 17, 1985 and who were put on the company payroll at that
time. Such seniority numbers did not become final until the
student pilot received an assignment to a line position. Court
Ex. 1, at ¶ 43(2).
34. Also as of May 17, 1985, approximately 150 of the Group of
500 had completed their refresher training and 10 to 12 had
completed their IOE. Id. at ¶ 44. United did not assign any
member of the Group of 500 to the line, or provide them with
final seniority numbers prior to May 17, 1985, whether or not
they completed their initial training, whether or not they
completed their refresher training, or whether or not they
completed their IOE. Id. at ¶ 43(3).
35. On May 17, with the strike in progress, few of the Group of
500 crossed the ALPA picket lines. The striking Group members
testified that they physically approached the training facility
on the morning of May 17, encountered the ALPA picket line,
declined to cross, and signed a report form provided by ALPA
which was subsequently supplied to United. Pl.Ex. 38; Tr. 175-76,
36. At 0001 EDT May 17, 1985, some of the Group of 500 were
undergoing United training in the Avia training facility in Long
Beach, California. When these pilots learned from management that
the strike had occurred and a picket line had been established,
they departed the training facility. Tr. 174. Daniel Petrovich
was told at that time by his Training Check Airman, John Jacobs,
that United President James Hartigan had just told him that the
strike was in progress and that if the trainees left the Avia
facility "they would all be terminated." Tr. 173.
37. Paula Wenz, another member of the Group of 500 who refused
to cross the picket line, testified that TCA Brown told her and
others on May 6 that
if on May 17th we didn't cross the picket line, that
we would never work for United Air Lines again, and
he said if by some reason we were included into a
back-to-work agreement or whatever, he would
personally see to it that we would never make it
through our probationary year.
Tr. 1472. Wenz had never previously been told that she would have
to cross a picket line in order to become a United pilot. Id.
38. Under the ALPA Constitution and By-Laws, a member may be
expelled for "[p]erforming work for or assisting an airline
during a period when the members of this Association are on
strike against such airline." Def.Ex. 170, Art. VIII, Sec.
1(A)(5). Applicants who have been "involved in alleged
strikebreaking shall not be accepted for membership" except in
accordance with rigorous procedures. Id., Art. II, Sec. 10(B).
Barry, as a former ALPA representative (Tr. 235), knew or should
have known that requiring the Group of 500 to serve as crossovers
could materially jeopardize their opportunity to become members
of ALPA at United or elsewhere.
39. United's policy continues to be that the Group of 500 who
did not report to work on May 17, 1985 will not become employees
of United. Tr. 451, 1165-66.
3. The Parties' Prestrike Communications to Pilots and Student
40. By April 16, 1985, United's planning for the flight
operations aspect of a strike had been thoroughly developed, and
United decided to engage in an extensive program to communicate
certain aspects of the plan to the pilot group. The
communications program was briefly summarized in a slide
presentation that Barry gave to an assembly of United's corporate
officers on April 23, 1985. Pl.Ex. 22. It included:
"informational letters/bulletins as needed," "selective
canvassing of influential pilots" and "road shows" conducted by
Ferris and Barry. The road shows were meetings of pilots at the
various domiciles, where Ferris and Barry would discuss United's
position in the negotiations and United's plans for actions which
would affect pilots in a strike. Barry testified that one purpose
of these road shows was as follows:
We hoped that might result in individual pilots that
were informed and aware of the situation, would
influence a settlement, if you will, to try to go
back to the ALPA negotiating committee and the MEC
and influence them to come to some sort of an
agreement with the company.
Tr. 533. Barry further testified that another purpose of the road
There was another purpose that we knew that if the
pilots struck the company, we were going to have to
do some things that were — I will say — rather stern
or unusual, and we wanted to make absolutely sure
that the pilots understood this and could perceive
our resolve in going ahead and accomplishing what we
had to do.
41. During the 30-day period immediately preceding the strike,
United communicated its plans for the pilots through letters and
road shows. Although the road shows were sparsely attended,
United mailed to all pilots a videotape cassette of excerpts of
the May 2, 1985 road show for pilots domiciled at O'Hare. United
communicated the following points to the pilots as part of its
effort to bring pressure to bear on the ALPA negotiators:
a. On April 24, Barry sent a letter to all pilots. Pl.Ex. 15.
He stated, "if a pilot strike occurs, United will continue to
operate. Flight operations will change and opportunities for
bidding may open up dramatically." The letter offered pilots a
chance to take training so that they could qualify to bid for
captains' jobs in the event of a strike.
b. Barry's April 24 letter also stated that United would hire
"permanent replacements for striking pilots." If already
qualified to serve as captains or first officers, they would be
paid $75,000 or $50,000 per year, respectively, and would be "pay
protected" at those rates "even though they may be later
reassigned to lower positions."
c. Barry's letter added, "THIS COMPANY INTENDS TO REWARD THE
LOYALTY OF THOSE PILOTS WHO HELP US KEEP THIS AIRLINE RUNNING."
d. On May 3, Barry sent another letter to the pilots. Pl.Ex.
16. He stated that striking pilots who reach their retirement
date would be ineligible to receive, during their retirement,
nonpension retirement benefits such as passes and insurance; that
striking pilots who wished to be covered by insurance would have
to convert to an "expensive" policy which is "not nearly as
comprehensive;" that "striking pilots do not accrue seniority
during the period of the strike;" and that "[s]trikers will be
ineligible to receive or continue to receive sick leave pay."
Finally, Barry stated the following:
Pl.Ex. 16, pp. 4-5 (emphasis in original).
e. On May 9, 1985, Barry again wrote the pilots to discuss
United's plan to "rebid" the airline if a strike occurs. Pl.Ex.
17. He stated in part:
Only those pilots who accept and perform their first
and subsequent duty assignments will be eligible to
bid. The first round of bids will be closed as soon
as each pilot who maintains continuous service has
had an opportunity to bid. Any pilot who has been
awarded a bid under this process who subsequently
strikes will forfeit his bid.
You will be eligible to be awarded any vacancy,
notwithstanding any current freezes which may have
been applicable under the 1981 Agreement. However, in
order to be awarded a Captain bid you must have
completed the written portion of the ATP.
We will utilize you in your current assignment,
unless you can be more productive to the recovery of
the airline by being trained into another position.
In some cases this may mean a PC in your old
equipment. In others it may mean a rating or
upgrading in the aircraft you now fly. Ultimately,
unless the assignment (domicile, equipment and
status) has ceased to exist, you will be trained and
activated into your newly awarded assignment. In the
meantime, you will be paid the greater of the
following: (1) your current assignment, (2) any other
position we have assigned you to, or (3) your newly
awarded bid, if, on a one-for-one basis, a more