The opinion of the court was delivered by: PIERCE
This case came on to be heard upon on order to show cause filed by the thirteen petitioners who are former Slick flight engineers and so-called "grandfathers" (hereinafter "grandfathers") for a preliminary injunction to prevent respondents Air Line Pilots Association International (hereinafter "ALPA") and Airlift International, Inc. (hereinafter "Airlift") from processing certain grievances which would allegedly affect certain rights of the grandfathers presently at issue before the Court. Jurisdiction is based on 45 U.S.C. § 151 et seq., and § 181; 28 U.S.C. § 1337.
A hearing was held on March 16 and 23, April 2, 3, 4, and 5, 1973 on the issues raised by the petition for a preliminary injunction. All parties were afforded full opportunity to be heard, to examine and cross-examine, to present evidence bearing on the issues, and to argue on the evidence and the law. The Court has fully considered the petition, evidence, arguments and briefs of counsel.
The petitioners are former Slick flight engineers, now employed by Airlift as pilots who fly third seat positions. Respondent ALPA is a labor organization and is the exclusive bargaining representative of all flight deck operating crew members employed by Airlift. This means they are the exclusive representatives of the former Slick flight engineers (petitioners), the former Slick pilots,
and the former Airlift pilots. Respondent Airlift is an air carrier engaged in the business of providing air transportation service pursuant to certificates of convenience issued by the Civil Aeronautics Board (hereinafter "CAB"), under the Federal Aviation Act of 1958.
On or about September 5, 1961 the pilots in the employ of Slick Airways, Inc. (hereinafter "Slick"), as represented by ALPA, and the flight engineers of Slick (petitioners), as represented by the Flight Engineers International Association, entered into an agreement. On or about September 5, 1961, the same parties and Slick entered into an agreement. By virtue of these agreements (together termed the 1961 Tripartite Agreement), ALPA was designated as the exclusive collective bargaining agent for the Slick flight engineers. These flight engineers were given certain seniority rights ("grandfather" rights) which provided preferences to the third seat on aircraft over all other pilots on the Slick pilots' system seniority list. The tripartite agreement also provided for a Joint Grievance Board to resolve disputes which arose under the agreement.
The Joint Grievance Board would consist of one representative from the grandfathers, one from ALPA, and one from Slick. Any member could demand binding arbitration in the event of disagreement. Under this board, the petitioners had the right of separate representation and could compel arbitration in any dispute not resolved by agreement.
The terms of the 1961 Tripartite Agreement were binding on the successors of Slick Airways, if any, as long as any of the petitioners remained on the Slick pilots' system seniority list. In June, 1966, Slick merged with Airlift, Airlift being the surviving company. Thus the terms of the tripartite agreement were binding on Airlift International, Inc. However, the Airlift flight crew personnel had not been a party to the tripartite agreement and therefore were not bound by it.
In order to obtain CAB approval of the merger the companies had to comply with certain requirements promulgated by the CAB. Among other things, the CAB ordered the then separate pilot seniority lists of the two airlines to be integrated in a "fair and equitable" manner. Under the general authority of the CAB orders, a series of arbitration proceedings were held before an arbitration board chaired by David L. Cole. The first set of proceedings was between the Airlift pilot group and the Slick pilot group (including the petitioners), and determined the relative rights of the pilots in each group. The second set of proceedings determined the manner in which the integrated seniority lists arrived at in the first set were to be implemented into the company's operations. The third set of proceedings dealt with the integration of the separate pilot collective bargaining agreements into a single document. The System Board of Adjustment was one of the features of this single collective bargaining agreement. Under this current system, which supersedes the Joint Grievance Board of the tripartite agreement, the petitioners alone cannot compel binding arbitration, although they do have a seat on the grievance board.
During the CAB proceedings and the arbitration hearings which followed, the Slick pilots (including the petitioners), by its Master Executive Council (hereinafter "MEC") engaged and paid an attorney, Richard Watt, to represent them. The tripartite agreement gave the grandfathers the right to be represented on the Slick MEC and other bodies, and one member of the MEC, Harold Hedlund, is a grandfather, and a petitioner herein.
In all three sets of proceedings the Cole Board dealt specifically with questions concerning the tripartite agreement. Harold Hedlund, grandfather representative to the Slick MEC, was present at the arbitration hearings. The February 13, 1968 Award of the Board provided for a single, integrated seniority list. It also found Airlift bound by the 1961 Tripartite Agreement; it made provision for preferential rights to be accorded the grandfathers under the 1961 Tripartite Agreement; and it made provision for "make-whole" pay
to compensate any grandfather who could not exercise his preferential rights because of an intervening Airlift pilot who was not bound by the 1961 agreement. On February 22, 1968, the Slick MEC through its attorney, Richard Watt, filed an application for reconsideration of the February 13, 1968 Award. Specifically they challenged the Board's handling of the 1961 Agreement. Subsequent awards in March, May, and June 1968 further protected the rights of the grandfathers under the tripartite agreement in light of the merger.
On June 11, 1968, Mr. Watt agreed to binding arbitration on behalf of the Slick MEC (including petitioners) as to how the tripartite agreement should be applied. This resulted in the August 28, 1968 Award: Supplement re Tripartite Agreement of September 5, 1961. A detailed set of rules was formulated for the treatment, under the tripartite agreement, of flight deck personnel, in light of circumstances occasioned by the merger of Slick and Airlift. These rulings were made binding on Airlift by a Cole Award on October 28, 1969.
As stated above, Harold Hedlund was present throughout these arbitration hearings. No limitations on his status, restricting his role on behalf of the grandfathers to that of a mere observer, were ever communicated by the grandfathers, including Mr. Hedlund, to the arbitrators or to anyone else participating in the hearings. In addition, nothing in the record reveals any communication to the arbitrators that Richard Watt, the counsel retained by the Slick MEC, was not authorized to speak on behalf of the grandfathers at the hearings, as petitioners now assert.
The record reveals that none of the petitioners ever petitioned the CAB to redress alleged wrongs resulting from the CAB-sponsored arbitration hearings, nor did they assert in any formal way that the arbitrators had not integrated the lists in a "fair and equitable" manner. Further, it appears that none of the petitioners ever filed a grievance through the System Board of Adjustment established by the 1970 single collective bargaining agreement, or through other established grievance machinery, nor have they brought any action to overturn any of the arbitration awards. Although the petitioners were aware of the alleged damage to their seniority and other rights in early 1968, they took no action until February 12, 1970 when they sought to convene the Joint Grievance Board under the tripartite agreement.
Despite the adoption by ALPA and Airlift of a single collective bargaining agreement on February 24, 1970, which provided for a System Board of Adjustment as the grievance machinery for all Airlift flight crew personnel (which includes the petitioners), the petitioners' claim on the merits is based on the Tripartite Agreement of 1961. Respondent ALPA contends that the Joint Grievance Board created by the tripartite agreement ceased to exist after the Slick-Airlift merger, subsequent arbitrations, and the 1970 single collective bargaining agreement which established the System Board of Adjustment. Petitioners claim the tripartite agreement is still controlling. Respondent Airlift claims either one or the other is applicable, but not both.
The preliminary injunction sought herein is predicated on the fact that respondent ALPA has twice postponed the processing of certain grievances pursuant to its grievance machinery, and it intended to go forward with that processing on April 23, 1973.
Petitioners are seeking to enjoin any such proceedings which involve grievances concerning alleged "furloughing out of seniority"
by respondent Airlift and alleged failure of Airlift to pay make-whole pay, since these are issues which the petitioners have brought before the Court for determination.
Before the Court can issue an injunction it must be satisfied that there is the probability of petitioners' success on the merits, that irreparable harm will ensue to petitioners if the injunction does not issue, and that on balance, they will be more harmed if the injunction is not granted than the respondent ALPA will be if it is granted. Sanders v. ALPA & Airlift International, 473 F.2d 244 (2d Cir. 1972); Stark v. New York Stock Exchange, 466 F.2d 743 (2d Cir. 1972); Dino DeLaurentiis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373 (2d Cir. 1966).
Petitioners allege that a precedent will be set once the particular grievances go to arbitration or are resolved internally. And further, should this Court make a ruling which is adverse to the administrative or arbitration procedure under which ALPA is about to proceed, the confusion resulting would be insurmountable. Respondent ALPA contends that damages to petitioners, if any, should they succeed on the merits herein, are recompensable in the form of monetary damages. Respondent Airlift claims that it will be irreparably harmed if the grievance process is not enjoined pending the Court's determination on the merits, since it may be threatened with multiple lawsuits by the various parties, and thus it joins petitioners in seeking this preliminary injunction.
The Court agrees that any harm caused to the petitioners by the denial of the injunctive relief requested could be monetarily recompensed. It further appears that any actual harm to respondent ALPA which would result if the injunction were granted is not so much actual irreparable damage as it is an inconvenience to ALPA due to the further delay it would experience in the orderly processing of its grievances. Thus upon consideration of two of the three elements necessary to enjoin, the equities might support the granting of the injunction.
However, in considering the third element, probability of success on the merits, much closer examination is required.
In substance, the petitioners' claim is based on their asserted rights under the 1961 Tripartite Agreement. While denying that they seek to overturn the 1968 and subsequent Cole arbitration awards, petitioners in actuality are seeking a judicial determination of their rights to make-whole pay, furloughing out of seniority, base bids, bumping rights, etc., either in spite of or in addition to the arbitration awards which culminated in the 1970 ALPA-Airlift collective bargaining agreement and the integrated seniority list. Petitioners contend that their rights under the tripartite agreement were not and could not have been affected by any determinations made by a board foreign to that agreement. They refuse to recognize the results of the Cole arbitrations, their classification as "pilots" instead of "flight engineers",
their positions on the integrated seniority list, and the fact that Cole dealt with the 1961 Tripartite Agreement. Yet while petitioners refuse to recognize any authority in the Cole Boards to affect their rights under the 1961 Tripartite Agreement they include as part of their cause of action before this Court the right to make-whole pay-a compensation created solely by the February 13, 1968 and subsequent Cole Awards. This inconsistency demonstrates a tendency on the part of petitioners to "pick and choose" only those aspects of a situation which are favorable to ...