Pilots May not Sway 7th Circuit on United Deal

     CHICAGO (CN) – United pilots who claim they are being cheated out of millions of dollars of seniority-based pay found little sympathy Monday from the 7th Circuit.
     The federal appeals court heard oral arguments today in a class action brought by 470 United Airlines pilots against the 51,000-member Air Line Pilots Association union and United.
     At issue is an agreement the union negotiated after United’s $3 billion merger with Continental, which gave premerger United pilots less than five years of time-worked credit no matter how long they had actually flown. The complaint says that pilots have been paid at least $12 per hour too little since December 2012, indicating that millions of dollars are at stake.
     Judge James Holderman threw out the claims in March, calling them “minor disputes” subject to arbitration as opposed to grounds for a class action.
     Today the 7th Circuit appeared ready to do the same, with Judge Diane Wood beginning the salvo: “Are you saying we have the wrong collective bargaining agreement or non-compliance with it?”
     “Both,” class counsel Alan Press replied.
     “You can’t be saying both,” Wood interrupted, pointing out that noncompliance claims should be sent to an arbitrator.
     Judge Frank Easterbrook added: “I thought it was just hornbook law that, without being able to win the contract claim against the employer, you can’t bring a representation claim against the union.”
     Press explained that “a union’s breach of its duty of fair representation is never a minor dispute.”
     “The union insisted upon this discriminatory treatment,” he added.
     Wood then asked whether the issue is if the union “intentionally got a bad deal.”
     “In any negotiation some employees might end up worse off,” Wood said. “I don’t see why if your employees come up on the short end of the stick this was any more than typical negotiation.”
     Wood interrupted as Press answered that “there was no countervailing benefit to any other group of pilots-“
     “We don’t know that!” she said.
     “Why would anybody do such a thing?” Easterbrook said. “You don’t have any ‘because’ clause.”
     Both judges noticed that the plaintiffs had failed to explain why they had been targeted.
     “I don’t see how one could address the claim without digging all the way into the collective-bargaining process and renegotiating,” Wood said. “This happens in airline mergers, this complicated process of integrating seniority lists.”
     As Press emphasized that his clients do not seek “to unwind the negotiations,” Easterbrook just shrugged and spent the next several minutes with an almost pitying smile on his face.
     Press also had trouble explaining whether his clients wanted an injunction requiring United to pay them more, one requiring new negotiations or actual damages.
     “So you want the union to pay the difference every week?” an incredulous Judge Diane Sykes asked.
     “Yes,” Press said. Easterbrook laughed heartily and looked ready for it all to end.
     Defense attorney Michael Abram took the podium with the poise and confidence of a 40-year labor-law veteran.
     He insisted that things panned out in a way typical of union bargaining: in which some employees inevitably end up better off than others. “Plaintiffs can’t say the association took away longevity,” Abram said. “It negotiated an improvement. ‘Well, you didn’t negotiate as much as you could have,’ they say. Why? They allege the reason was to prevent premerger United pilots from benefiting. That is not bad faith.”
     Asked about whether it is cognizable to challenge how hard a union bargained, Abram said, “only if for a bad reason,” such as “they’re our opponents, let them suffer.”
     By some measures, many of the alleged plaintiffs had lost nothing, the attorney added.
     Abram returned time and again to the notion that this dispute should go to arbitration, although the plaintiffs had previously argued that an arbitration panel including arbitrators selected by United and the union “would be a basically ‘rigged’ arbitration,” considering the conspiracy to discriminate against them.

%d bloggers like this: