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January 26, 1989

KAPHY LONG, LISA SHARRING, BARBARA SMITH, and VELMA METOYER, individually and on behalf of a class of persons similarly situated, Plaintiffs,

Ilana Diamond Rovner, United States District Judge.

The opinion of the court was delivered by: ROVNER



 This action was brought by several flight attendants against their employer, Trans World Airlines, Inc. ("TWA"), challenging TWA's failure to provide them with "designated rights" letters after they went on strike and were replaced as employees. The case was certified as a class action on August 18, 1988. The Court subsequently adopted the following definition of the plaintiff class, pursuant to the parties' agreement:

All persons who (1) on October 24, 1978, were employed by TWA as cabin attendants, pursers, or service managers and had four years of employment of four years of accrued seniority with TWA and (2) were replaced by permanent employees during the flight attendant strike between March 17, 1986 and May 17, 1986 and thus did not return at the strike's end on the later date.

 Class members were then notified of the lawsuit and were afforded until January 17, 1989 to opt out of the class. Presently before the Court are cross motions for summary judgment by the plaintiff class and TWA solely on the issue of liability. For the reasons described below, plaintiffs' motion is granted and TWA's motion is denied.


 This case concerns the implementation of the Airline Deregulation Act of 1978 ("the Act"), which dramatically altered federal regulation of the airline industry. In order to minimize the effect of this change on airline employees, Congress enacted an "Employee Protection Program" as Section 43 of the Act, 49 U.S.C. § 1552. See generally Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 107 S. Ct. 1476, 94 L. Ed. 2d 661 (1987) (" Alaska Air I "). Section 43 provides certain benefits to "protected employees," defined as employees who, on October 24, 1978, had been employed by a certified air carrier for at least four years. 49 U.S.C. § 1552(h)(1). Section 43 includes two major components: a monthly compensation program, which never became operative, and the imposition on airlines of a first-hire duty for protected employees who are "furloughed or otherwise terminated" by an air carrier. *fn1"

 49 U.S.C. § 1552(f)(1) authorizes the Department of Labor ("DOL") to "issue, amend, and repeal such rules and regulations as may be necessary for the administration" of the Employee Protection Program. DOL accordingly promulgated regulations which established a framework for implementing the first-hire rights. The regulations provide that the "Rehire Program" applies only to "designated employees," defined as "protected employee[s] who [are] involuntarily placed on furlough or [are] terminated *fn2" by a covered air carrier during the eligibility period." 29 C.F.R. § 220.10(a). The regulations then set forth specific exclusions: "A protected employee shall not be deemed to be furloughed or terminated if such employee: . . . (4) is on strike or is withholding services in support of other employees who have struck the covered air-carrier; (5) Is terminated for cause as defined in Section 220.01; [or] (6) Resigned or voluntarily quit for any reason." *fn3"

 The regulations also provide a means for identifying those protected employees who are eligible for first-hire rights. The mechanism created for this purpose is the designated rights letter. 29 C.F.R. § 220.27(a) provides in part: "Not later than the date of separation from employment, a covered air carrier which furloughs or terminates a protected employee during the eligibility period . . . shall furnish such protected employee with a notice of rights in the form of a letter or other written documentation that such employee is a designated employee and thereby is entitled to exercise a first-right-of-hire." The regulations also set forth specific information which such a notice must contain. *fn4"

 TWA and other airlines have resorted to a number of means in an effort to prevent the implementation of the Rehire Program. First, they participated in the rulemaking process itself. In January, 1979, the DOL held public meetings with interested parties to obtain opinions regarding the Rehire Program. DOL published proposed regulations in March, 1979, and received public comments. On September 17, 1982, DOL published a revised proposal, followed by a 30-day review and comment period. The final regulations were published November 22, 1983, and they first took effect on May 17, 1984.

 The next challenges by the airlines were judicial. On May 17, 1984, the same day that the regulations took effect, the Employee Protection Program was invalidated by the district court in Alaska Airlines I because of a legislative veto provision in the Act. Alaska Airlines, Inc. v. Donovan, 594 F. Supp. 92, 96 (D.D.C. 1984). That decision was reversed by the court of appeals on July 16, 1985. Alaska Airlines, Inc. v. Donovan, 247 U.S. App. D.C. 132, 766 F.2d 1550 (D.C. Cir. 1985), aff'd, 480 U.S. 678, 107 S. Ct. 1476, 94 L. Ed. 2d 661 (1987). In December, 1985, the DOL re-issued the regulations.

 On January 22, 1986, a challenge by TWA and fourteen other airlines to the validity of the regulations themselves was rejected in Alaska Airlines, Inc. v. Brock, 632 F. Supp. 178 (D.D.C. 1986), modified, 258 U.S. App. D.C. 89, 809 F.2d 930 (D.C. Cir. 1987), cert. denied, 484 U.S. 847, 108 S. Ct. 145, 98 L. Ed. 2d 100 (1987) (" Alaska Air II "). The primary argument advanced by the unsuccessful plaintiffs was that only employees who are victims of deregulation should be protected by the duty to hire. The court also commented on the delays which had impeded final implementation of the Rehire Program:

Although this program, § 43 of the Act, has been in effect for over seven years, its turbulent history has prevented airline employees from receiving any substantial benefits from its provisions. . . .
Due to [the] combination of Congressional inaction, administrative delay and litigation, protection for airline employees has remained an unfulfilled promise. Many airlines have resisted recognizing any duty to hire or taken the position that there is no duty until the Department of Labor regulations become effective.

 632 F. Supp. at 180. The DOL regulations finally took effect on May 9, 1986.


 The parties agree on the essential facts. The history of the plaintiffs' strike against TWA and the resulting legal issues has been well documented elsewhere, *fn5" and the Court will set forth only those facts relevant to the issues at hand.

 Plaintiffs are former employees of TWA and are members of the Independent Federation of Flight Attendants ("IFFA" or "the union"). They are also protected employees as defined in Section 43 of the Act.

 The first collective bargaining agreement between IFFA and TWA was signed in 1978. It was replaced in 1983 by a contract which was subject to amendment beginning July 31, 1984. In the spring of 1984, TWA and IFFA served on each other notices of intended change pursuant to 45 U.S.C. § 156. During 1985 and 1986, they engaged in collective bargaining negotiations and in mediation under the auspices of the National Mediation board. TWA demanded substantial concessions from plaintiffs in the form of lower wages and work rule changes. The union agreed to make some concessions but would not meet TWA's demands. The specific details of the negotiations need not be described here. As the March 6, 1986, strike deadline approached, it was apparent that there was a substantial possibility that no agreement would be reached.

 On February 13, 1986, TWA sent a letter to plaintiffs warning that in the event of a strike the airline would continue to operate and would, if necessary, hire permanent replacements. The letter also warned plaintiffs that returning strikers would not necessarily have jobs.

 On March 7, 1986, plaintiffs went on strike. TWA intensified replacement efforts which were already underway and instituted the work rule changes. The airline operated by using the services of 1280 TWA flight attendants who crossed picket lines and 2800 new flight attendants.

 On May 17, 1986, the union made an unconditional offer to return to work. Because their positions had been filled by replacement workers, however, only a small number of strikers -- about 197 -- were reinstated. Over 5,000 returning strikers who sought reinstatement were refused, approximately 3,000 of whom (the plaintiffs here) had sufficient seniority to qualify as protected employees pursuant to Section 43.

 On June 27, 1986, the President of IFFA wrote to TWA's Vice President of Labor Relations inquiring when TWA would send a notice of their status to those employees who were entitled to first hire rights. On August 1, 1986, TWA replied that "the company is in the process of determining which employees are entitled to a first right of hire and all employees will be notified as to their status under the Act by ...

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