The opinion of the court was delivered by: Bua, District Judge.
Before the Court are motions filed by both ALPA and United
to amend the Court's August 1, 1985 Order, 614 F. Supp. 1020.
Also pending is a joint stipulation to amend submitted by the
parties. For the reasons stated below, plaintiff's motion to
amend is denied and defendant's motion is granted.
ALPA seeks to amend the Court's Order to include an award of
back pay for the Group of 500 student pilots ordered
reinstated by the Court on August 1, 1985. United seeks to
amend the Court's Order, which required "immediate"
reinstatement of the Group of 500, to allow United to place
the Group of 500 on a preferential hiring list and reinstate
Group members as positions become available in the future.
United argues that the Group of 500 were permanently replaced
during the strike and therefore should not be immediately
reinstated to their former positions. United estimates that if
Group members are placed on a preferential hiring list, all of
the Group of 500 will be hired by August of 1986.
ALPA's arguments in support of its motion and in opposition
to United's motion are without merit. First, the pilots'
strike was neither "caused" nor "prolonged" by an unfair labor
practice by United. Although the Court has found that United
violated the RLA by its treatment of the Group of 500 and its
attempt to rebid the airline, those violations were not
sufficient to constitute an unfair labor practice strike.
Although United's positions on these two issues undoubtedly
"aggravated" the strike, they did not "prolong" it, as that
term is defined. See Allied Industrial Workers Local No. 289 v.
N.L.R.B., 476 F.2d 868, 882 (D.C. Cir. 1973). See also Road
Sprinkler Fitters Local No. 669 v. N.L.R.B., 681 F.2d 11, 20
(D.C. Cir. 1982); N.L.R.B. v. Moore Business Forms,
574 F.2d 835, 840 (5th Cir. 1978); N.L.R.B. v. Jackson Press, Inc.,
201 F.2d 541, 546 (7th Cir. 1953). Three other issues, in addition
to the Group of 500 and the rebid, separated the parties
following the tentative agreement on the economic package. See
August 1, 1985 Order, Finding of Fact ¶ 71.
Furthermore, United has not waived its right to raise the
permanent replacement defense. First, the Smith affidavit,
which is uncontradicted, is not new evidence but merely
updates and clarifies testimony given at trial. Second, United
argued before, during and after trial that it had the right to
hire and retain permanent replacements in response to the
strike. United's failure to advance the permanent replacement
issue with reference to the Group of 500 is understandable
given that it was not until the Court issued its August 1
Order that the Group of 500 were first considered employees of
United. Since there was sufficient evidence at trial to
support United's permanent replacement defense even without
the later-filed Smith Affidavit, ALPA was not unfairly
prejudiced by United's post-trial permanent replacement
argument. ALPA does not contest the accuracy of the evidence,
but rather argues that the Group of 500 should be reinstated
their permanent replacement because of an unfair labor strike.
The unfair labor strike issue, however, was raised at trial
and is now rejected by the Court. Since the Group of 500 were
properly replaced during the strike, they are not entitled to
back pay, but rather back-dated seniority and preferential
hiring in the future.
Accordingly, the Court's August 1, 1985 Order is amended.
Finding of Fact 82 is amended as follows (bracketed text is
deleted and underscored text is added):
82. United expects to expand and will need
additional pilots. Tr. 121, 551. [United has
already offered second officer jobs to nearly 700
additional pilots, of whom only about 300-350
entered training during the strike. Tr. 246-47.]
Beginning on or about May 17, 1985 and continuing
thereafter during the strike, United made offers of
permanent employment to replacement pilots, 539 of
which offers were accepted prior to the end of the
strike. Tr. 246-48; Smith Affidavit, ¶ 2. Out of
the 539 offers, 267 permanent replacements entered
training during the strike. Smith Affidavit, ¶ 3.
Although 114 of the permanent replacements have yet
to begin their training, the delay in commencement
of their training is due to the fact that United's
training facilities have been utilized to their
maximum capacities. The remaining pilots would
enter training after the strike was settled.
Nonetheless, United's position as expressed to the
Court is that it will not employ any of the Group
of 500 who refused to cross the picket lines during
the strike. Tr. 56. United's policy is that "this
Group of 500 will not be employed by United." Tr.
121. The only possible exception to this policy is
that if the individual did not report on May 17 due
to "personal hardship" or "extenuating
circumstances," he or she would be "offered
employment." Tr. 251. United, however, will not
consider those who failed to report on May 17 "if
their reason for failing to show up for work was a
refusal to cross the picket line." Tr. 366.
The following Conclusions of Law are added immediately
following Conclusion of Law 24:
24a. Although the "Group of 500" were employees
of United on May 17, 1985, beginning on that date
and continuing through the strike United lawfully
hired 539 permanent replacements for the striking
members of the Group of 500. See Brotherhood of Ry.
and Steamship Clerks v. Florida East Coast Ry. Co.,
384 U.S. 238, 244 [86 S.Ct. 1420, 1423, 16 L.Ed.2d
501] (1966); NLRB v. Mackay Radio & Telegraph Co.,
304 U.S. 333, 345-46 [58 S.Ct. 904, 910-11, 82
L.Ed. 1381] (1938); Flight Engineers Int'l. Ass'n.
v. Eastern Airlines, Inc., 359 F.2d 303, 310-11 (2d
Cir. 1966); Air Line Pilots v. Southern Airways, 49
L.R.R.M. 3145, 3152 (S.D.Tenn. 1962). Permanent
replacements hired from outside the company, unlike
striking pilots who cross over, need not actually
begin working in order to retain their jobs
following the conclusion of a strike. Cf. N.L.R.B.
v. Cutting, Inc., 701 F.2d 659 (7th Cir. 1983) with
International Assoc. of Machinists v. J.L. Clarke
Co., 471 F.2d 694 (7th Cir. 1972). See also H. & F.
Binch Co. v. N.L.R.B., 456 F.2d 357, 362 (2d Cir.
1972). 24b. An employer may refuse to reinstate
strikers if the employer establishes that
replacements for the strikers were hired on a
permanent basis before the employer received the
strikers' offer to return to work. Cutting, supra,
701 F.2d at 662. Although the replacement worker
must have accepted the company's offer of permanent
employment, "actual arrival on the job should not
be required if an understanding has been reached
that this will occur at a reasonably early date."
H. & F. Binch Co., supra, 456 F.2d at 362.
Conclusion 5(a) is amended as follows (bracketed text is
deleted and underscored text is added):
5(a) directed and enjoined to restore the "Group
of 500" pilots and members of the Class of '79 who
elected to respect ALPA picket lines to the status
of employees on inactive status, [and to assign
them immediately to line pilot service if they
completed their training, and otherwise permit
them] and to accord preferential rehire rights to
them whereby they shall be entitled, upon the
opening of positions for which they are qualified
and upon the completion of their training, to be
assigned to line pilot service. Such individuals
shall be permitted to complete their training
without discrimination, and then enter line
service, with seniority in all cases accrued from
May 17, 1985. Seniority for members of the Class of
`79 shall be determined by the adjusted seniority
date established by their recall prior to May 17,
Plaintiff's motion to amend the Court's August 1, 1985 Order
is denied. Defendant's motion to amend the Court's ...