Judge Hubert L. Will
MEMORANDUM OPINION AND ORDER
The plaintiffs have moved for partial summary judgment on a question of interpretation of the consent decree between the EEOC and United, entered in case 73 C 972. The plaintiffs interpret the consent decree to require United to give a preference to United employees requesting transfers over off-street hires, so long as the in-house employees meet the basic qualifications established by the consent decree. While the consent decree does establish what the basic qualifications will be, and allows employees who are found not to meet the basic qualifications to grieve that determination, so that they can be considered for a transfer, the plain language of the consent decree does not require that United always give a preference to in-house transferees over off-street hires.
The relevant language of the consent decree states that:
3. The present procedure for advertising openings (Newsline) shall, subject to Section IX, P 2, be continued throughout the period of this Decree; whenever reasonable, specific openings shall be posted 15 days in advance of them being filled. As long as United can meet the goals established in this Decree, it may adhere to the following priorities in filling non-management vacancies:
(1) in-classification transfer or bid at the point;
(2) in-classification transfer or bid on a system-wide basis;
(3) out-of-classification transfer;
(4) off-street hiring.
4. The achievement of the goals set forth in this Decree, however, takes precedence over any and all of these priorities. The present in-classification transfer or bid policy shall not form a basis for any failure to meet a goal established herein. The goals established are not intended to affect employee's rights to recall from furlough.
5. If a minority or female is determined by United not to meet the job qualifications established in Section IV of this Decree at the time an out-of-classification transfer request is filed, the applicant may grieve such adverse determination through existing non-contract procedures. In the selection of minority and female candidates from among those who have filed transfer requests and have been found qualified, United will, whenever reasonably possible, give priority to employees senior in Company service over newer employees. The Implementation Committee or its representative will monitor the filling of jobs pursuant to transfer requests and may assist and monitor the processing of grievances filed pursuant to this paragraph, an the Committee shall review the final determination of such a grievance if requested by any of the parties to this Decree.
6. When a hiring goal is keyed to minority and/or female applicant flow (i.e. for jobs of Mechanic, Ramp Service, Air Freight Agent and pilot), out-of-classification transfer requests shall be pooled with off-street applicants for the purpose of computing the rate of applicant flow. Priority in hiring, however, shall continue to go to qualified minority and female employees with transfer requests on file over outside hires. United shall develop a program for monitoring applicant flow and shall submit such program to the Commission for its approval within 30 days of the entry of this Decree.
Plaintiffs argue that the language in bold type creates an absolute preference for transfer requests over off-street hires. Clause 3 could not, however, be more explicit. "United may" follow such priorities, as long as it does not interfere with the achievement of the hiring goals. Even if following such a policy does not hinder meeting the goal, United is not compelled by this language to give such priority.
Clause 6 deals with how to determine the rate of applicant flow, and the reference to continuing priority for transfers makes clear that Clause 6 is not intended to nullify Clause 3. Given the context, including Clause 3 and the rule that meeting the goals overrides any United policy choice, the plaintiffs' absolute interpretation of that portion of Clause 6 is simply not plausible. On the other hand, while United is not bound by the decree always to give priority to in-house transfers, it is clear that, if it can be done consistent with the over-all objectives of the decree, in-house transfers are preferred.
In addition to the plain language of the consent decree, United also relies upon its version of the negotiation history to support its interpretation of the Decree. Plaintiffs dispute the exact course of negotiations. To bolster their interpretation, the plaintiffs rely on testimony by United personnel officers, given at the time of the consent decree, which demonstrates the very strong preference that was given at that time to in-house transfers over off-street hires, even if the off-street hires had more experience. United disputes the plaintiffs' description of the negotiations and its policy.
The language of the decree in toto is inconsistent with the plaintiffs' interpretation. Accordingly, the plaintiffs' motion for summary judgment is denied.
Hubert L. Will
United States District Judge
DATED: May 28, 1992
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