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September 13, 1982

TRANS WORLD AIRLINES, INC., Defendant.; HAROLD H. THURSTON, et al., Plaintiffs, v. TRANS WORLD AIRLINES, INC., et al., Defendants

The opinion of the court was delivered by: DUFFY


 Airline Pilots Association, International ("ALPA"), the bargaining representative of airline pilots and flight engineers, sued Trans World Airlines, Inc. ("TWA") alleging that amendments to the Age Discrimination and Employment Act ("ADEA") did not require TWA's implementation of a policy permitting flight engineers to serve past the age of sixty. TWA has also been sued by a group of pilots and the Equal Employment Opportunity Commission ("EEOC") who claim that TWA's policy that allows flight engineers past the age of sixty to continue in TWA's employ discriminates against pilots. Both cases have been consolidated and are before me now on motions by TWA for summary judgment. For the reasons that follow, TWA's motions are granted.


 In 1978, Congress amended the ADEA to prohibit, inter alia, an employee's involuntary retirement before the age of seventy solely by reason of his age even if in accordance with a bona fide employee benefit plan. *fn1" Prior to this amendment, the ADEA allowed employers to compel retirement before the age of sixty-five if this was part of a bona fide employee benefit plan and was not a subterfuge to evade the purposes of the ADEA. See United Air Lines, Inc. v. McMann, 434 U.S. 192, 54 L. Ed. 2d 402, 98 S. Ct. 444 (1977). The amended ADEA permits involuntary retirement before age seventy only where:

 1. "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business",

 2. "the differentiation is based on reasonable factors other than age," or

 3. the forced retirement is in accordance with "a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension or insurance plan, which is not a subterfuge to evade the purposes of [the ADEA] . . .," and was not as a result "of the age of the individual." 29 U.S.C. § 623(f) (1978).

 In response to this change in the law, TWA commenced a review of its July, 1977 collective bargaining agreement ("the 1977 Working Agreement") with ALPA. *fn2" The 1977 Working Agreement included a Retirement Plan which provided for retirement at age sixty "unless written approval of the Company is granted for continuance in employment." Sections 4.1, 4.2 of the Retirement Plan. TWA Exhibit 3. This retirement date had been in effect for many years and, in fact, for the past two decades prior to 1978 no one over the age of sixty had served in the cockpit of a TWA aircraft. Crombie Affidavit para. 7. This is consistent with the policy of the Federal Aviation Administration ("FAA") which since 1960 has mandated retirement at age sixty for Captains and First Officers. 14 C.F.R. § 121.383(c). Several courts have viewed this age limitation as a bona fide occupational qualification for pilots within the meaning of the ADEA, 28 U.S.C. § 623(f) (1). See, e.g., Starr v. FAA, 589 F.2d 307, 313 (7th Cir. 1978); Criswell v. Western Air Lines, Inc., 514 F. Supp. 384, 389 (C.D. Cal. 1981).

 The FAA has not imposed any age limitation on Flight Engineers, who are responsible for monitoring the mechanical, electrical and electronic functioning of the aircraft while it is in flight.

 The 1978 ADEA amendments prompted TWA to determine whether or not members of the cockpit crew, which include on most commercial jets a Captain, a First Officer (co-pilot) and a First Engineer, fall within one of the exceptions to the new general rule that a company could not retire employees prior to age seventy. TWA met with representatives from ALPA to discuss the impact of the amendments but no consensus could be reached. On August 10, 1978, TWA went ahead and announced a new corporate policy in a bulletin to all TWA flight personnel. TWA Exhibit 5. The bulletin proclaimed "any cockpit crew member who is in a Flight Engineer status at age sixty may not be compelled to retire. The terms and conditions of employment for Flight Engineers who elect to work beyond age sixty will be governed by the provisions of the current Working Agreement." The bulletin further explained that "Flight Engineers will be subject to the provisions of the Federal Air Regulations applicable to TWA's operations and as such may not under any circumstances serve as a pilot after attaining age 60."

 It is necessary to set forth TWA's implementation of this policy at some length. Flight Engineers who retired at age sixty after April 6, 1978, the effective date of the ADEA amendments, were notified by letter that they would be given the opportunity to be reinstated as a Flight Engineer. Flight Engineers reaching their 60th birthday after August 10, 1978 continued in that status. Apparently, although no new "retirement date" for Flight Engineers was specifically established under TWA's new policy, it is presumed to be age seventy.

 Captains seeking to become Flight Engineers in order to continue working past age sixty had to change their status to Flight Engineer pursuant to bidding procedures set forth in the Working Agreement. The Working Agreement outlines these procedures that provide a mechanism for the possible deployment of TWA's entire pilot workforce. The procedures apply to any TWA pilot, under age sixty, who seeks to change status or location. The affidavit of Joseph Bryner, the director of Flight Crew Resources for TWA, describes these procedures. A pilot wishing to change his status or his domicile files a "Standing Bid" which shows his present status and domicile and lists his preferences for a new status. See TWA Exhibit 19. TWA is then obligated to publish bulletins listing the available vacancies on which pilots can bid. The number of vacancies, of course, changes with TWA's staffing and contractual needs. Available TWA pilot domiciles may include New York, Chicago, St. Louis, Kansas City, San Francisco and Los Angeles. As might be expected, in any bidding situation for a vacancy, the bidders frequently outnumber the vacancies and not all bids can be accommodated. In an effort to be fair, the Working Agreement provides that in each instance the selection process is based upon a pilot's seniority at TWA. This seniority system and the bidding procedures have existed at TWA since before 1967. Of course, with the advent of the opening of Flight Engineer jobs to pilots over age sixty, the procedures have received new found attention. A TWA Captain who chooses to downbid to Flight Engineer files a bid for such a vacancy prior to his 60th birthday. "If there is such a vacancy at the domicile where a downbidding Captain has requested to be assigned and that Captain has the highest seniority, then he is granted the bid in accordance with the provisions of the Working Agreement." Bryner Affidavit para. 11.

 After the April 6th effective date of the 1978 ADEA amendments, there was an approximate four month period during which TWA did not post any Flight Engineer vacancies. On August 18, 1978, TWA listed twelve Flight Engineer vacancies that were to become effective on or about September 1, 1978. Two captains bid for these positions and were later awarded them. After being trained for the Flight Engineer position these captains switched jobs before they reached age sixty and consequently they were not forced to retire.

 According to Bryner, as of February, 1982, approximately sixty former Captains have successfully downbid to Flight Engineer and thus have served in the cockpit after age sixty. Bryner Affidavit para. 18. Several TWA Captains, like Harold H. Thurston, who reached age sixty between April 6, 1978 and August 18, 1978 were unable to bid successfully for a Flight Engineer position. These Captains had to retire from pilot status, as required by FAA regulations, and from the company since no alternative positions became available before their 60th birthdays.

 TWA's change in policy which allows Flight Engineers to continue in their jobs after age sixty, resulted in a number of lawsuits. Two of these suits are now consolidated before me. In the first case, ALPA v. TWA, 78 Civ. 3707, ALPA charges first that TWA's policy of allowing anyone to serve in the cockpit beyond age sixty constitutes a unilateral change in working conditions in violation of Section 6 of the Railway Labor Act ("RLA"), 45 U.S.C. § 156, and second, that ALPA is entitled to a declaratory judgment as to whether TWA's policy was required by the ADEA amendments. Certain "career" Flight Engineers *fn3" have intervened on the side of TWA in an effort to maintain the status quo.

 In the second case, Thurston v. TWA, 79 Civ. 4915, several TWA Captains, including Thurston, have sued TWA alleging, inter alia, that TWA's mandatory retirement at age sixty is in violation of the ADEA and that ALPA and TWA have "conspired" to deprive the plaintiffs of their rights under the ADEA. In August, 1980 I permitted the EEOC to intervene in this second case to represent the interests of the many ...

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