Judge Van Graafeiland concurs and dissents in a separation opinion. Consolidated appeals from judgments of the Southern District of New York, Kevin T. Duffy, Judge, in two lawsuits growing out of TWA's action in response to Congress' 1978 amendment of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976 and Supp. V 1981) ("ADEA"). TWA permits flight engineers to work until age 70 instead of being required to retire at 60 and allows captains and first officers, who must retire as such at 60 years, to downbid their status to that of flight engineer on certain conditions. The district court granted TWA's motions for summary judgment dismissing (1) an action against it by the bargaining representative for flight deck crew members, Air Line Pilots Association ("ALPA"), claiming that age under 60 is a bona fide occupational qualification for flight engineer status and therefore exempt from the 1978 amendment, and (2) an action by certain captains and first officers (Thurston, et al.) claiming that TWA discriminated against them in violation of ADEA by refusing to permit them to downbid to the position of flight engineer after they reached 60 years of age.
Waterman, Mansfield and Van Graafeiland, Circuit Judges. Van Graafeiland, Circuit Judge, concurring in part and dissenting in part.
MANSFIELD, Circuit Judge:
These consolidated appeals from judgments in two separate lawsuits against Trans World Airlines, Inc. ("TWA") in the Southern District of New York, Kevin T. Duffy, Judge, grow out of actions taken by TWA on August 10, 1978, permitting flight deck crew members in the status of "flight engineer" to work until the age of 70 instead of requiring them, as had been TWA's policy with respect to all such crew members (including captains and first officers), to retire at age 60. TWA made the change in response to Congress' amendment on April 6, 1978, of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1976 and Supp. V 1981) to prohibit mandatory retirement prior to age 70.
In one action the Air Line Pilots Association ("ALPA"), bargaining representative of the flight deck crew members, challenged TWA's policy, seeking a declaratory judgment that age under 60 is a bona fide occupational qualification ("BFOQ") for flight engineers within the meaning of § 623(f)(1) of the ADEA*fn1 and that TWA's action represented a unilateral change in working conditions in violation of the Railway Labor Act ("RLA"), 45 U.S.C. § 156-188 (1976 & Supp. V 1981).*fn2 ALPA appeals from a summary judgment in favor of TWA. In a second action (Thurston, et al. v. TWA and ALPA) a group of crew members (captains and first officers) formerly employed by TWA, who had been unsuccessful in securing flight engineer status before their 60th birthdays, claim that TWA's policy, instigated and encouraged by ALPA, discriminates against them in violation of the ADEA by refusing to permit them to downbid to the position of flight engineer after they reached 60 years.*fn3 The crew member-plaintiffs appeal from a summary judgment dismissing their action.*fn4 We affirm the dismissal of ALPA's action and reverse the dismissal of the Thurston action.
The material facts are not in dispute.*fn5 TWA, a commercial aircraft carrier, employs approximately 3,000 "pilots"*fn6 on its wide-bodied planes in three (and sometimes four) cockpit positions. The "captain" commands the aircraft and is responsible for all phases of its operation. The "first officer" assists or relieves the captain as co-pilot. The "flight engineer" sits at a side-facing instrument panel and is primarily responsible for pre-flight inspection and in-flight monitoring of the mechanical, electrical, and electronic functioning of the aircraft.
A flight engineer does not operate the flight controls. Unlike the captain and first officer, who are required by the Federal Aviation Administration ("FAA") to have first class medical certification, the flight engineer needs only a second class medical certificate. The flight engineer does have crucial duties in emergencies, such as an all-engine flame-out but, should the flight engineer become incapacitated, the "fail-safe" principle of crew redundancy means that the first officer would perform the engineer's duties until the aircraft is brought to an emergency landing. In the event of incapacitation of the captain or first officer, the flight engineer may perform first officer duties except for take-off and landing. On certain long-distance flights there is a fourth crew member, an "International Relief Officer" ("IRO"), who acts as third in command and who performs, inter alia, first officer duties (excluding take-off and landing) and flight engineer duties.
Under an FAA regulation, 14 C.F.R. § 121.383(c) (1982), persons are prohibited from serving as "pilots" on a commercial aircraft carrier beyond age 60 ("Age 60 Rule"). Captains, first officers, and IRO's are considered "pilots" for purposes of the Age 60 Rule. The Age 60 Rule, however, does not apply to the third seat position of flight engineer.
The ADEA as amended prohibits an employer from discriminating against an employee between the ages of 40 and 70 "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age . . ." and from limiting, segregating, or classifying its employees "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. §§ 623(a)(1), (a)(2). The Act further forbids the involuntary retirement of an employee within the protected age group "because of the age of such individual." Id. § 623(f)(2). It is also unlawful under the ADEA for a labor organization "to cause or attempt to cause an employer to discriminate against an individual in violation of [the Act] . . . ." Id. § 623(c)(3).
The ADEA, however, permits an employer or labor organization to take actions otherwise prohibited under the Act "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age," id. § 623(f)(1), or "to observe the terms of a bona fide seniority system . . . which is not a subterfuge to evade the purposes of [the Act] . . . ." Id. § 623(f)(2).
The parties agree for purposes of this litigation that the FAA Age 60 Rule may establish a "bona fide occupational qualification" ("BFOQ") for captains and first officers within the meaning of 29 U.S.C. § 623(f)(1) of the ADEA. Cf. e.g., Starr v. FAA, 589 F.2d 307, 313 (7th Cir. 1978); Rombough v. FAA, 594 F.2d 893, 899 (2d Cir. 1979) (upholding FAA's denial of exemption from Age 60 Rule as within agency's discretion); but cf. Tuohy v. Ford Motor Co., 675 F.2d 842, 846 (6th Cir. 1982).*fn7
The "Retirement Plan for Pilots of Trans World Airlines, Inc.," ("Retirement Plan") negotiated as part of the 1977 Working Agreement between TWA and ALPA and incorporated in it by reference, provided that the "normal retirement date is the [pilot's]*fn8 60th birthday" and that "[pilots] must retire by their normal retirement date unless written approval of the company is granted for continuance in employment." Articles 4.1, 4.2. Article 4.3 of the agreement provides for the disbursement of retirement benefits in the event of employment past age 60. The agreement was re-negotiated in 1979 (with a non-renegotiation provision stating that the agreement could not be reopened until September 30, 1981) and again in April 1982. The retirement provisions remained unchanged. They had governed the relationship for many years prior to these agreements, and, historically, TWA had employed no flight crew member over the age of 60 on its airplanes until 1978.
Following Congress' April 6, 1978, amendment of the ADEA to prohibit, inter alia, the involuntary retirement of persons before the age of 70 solely on the basis of age even if in accordance with a bona fide seniority plan, 29 U.S.C. § 623(f)(2), TWA failed to agree with ALPA on a revision of TWA's retirement program so that it would comply with the 1978 amendments. On August 10, 1978, TWA unilaterally issued a bulletin authorizing the continued or reactivated employment of "any cockpit crew member who is in a flight engineer status at age 60," retroactive to April 6, 1978. The term "flight engineer status" was not defined and the procedure whereby captains and first officers approaching 60 might acquire that status was not described. The bulletin simply provided that those flight deck officers who wanted to work past 60 would "be governed by the provisions of the current Working Agreement" and the FAA's Age 60 Rule for captains and first officers.
To implement its new policy TWA immediately reinstated those who had been in flight engineer status on their 60th birthdays and had been retired after April 6, 1978. Flight engineers reaching their 60th birthday after August 10, 1978 continued in that status. However, captains and first officers who might seek to downbid themselves to the position of flight engineer and then work as such beyond age 60 were required to change their status to flight engineer in accordance with the seniority and bidding procedures of the Working Agreement.
Under those procedures a captain or first officer approaching 60 years of age was required successfully to complete his downbid with an effective date as a flight engineer before he reached 60 years or else face mandatory retirement and removal of his name from the seniority list upon his reaching 60 years. Since the downbidding captain or first officer first had to pass the FAA written examination for flight engineer and then wait until a flight engineer vacancy opened up before his bid would become effective,*fn9 the procedure forced captains and first officers desiring to continue as flight engineers after 60 to downbid well before they reached 60 or lose out altogether.
Most of the 70 captains and first officers who have downbid for flight engineer positions successfully obtained that status before reaching 60. However, several, including plaintiff-appellant Harold Thurston, turned 60 between April 6 and September 1, 1978, when there were no flight engineer vacancies. Hence they could not secure a flight engineer bid before their 60th birthdays. Accordingly, they were mandatorily retired and their names were removed from the seniority list.*fn10
Under TWA's 1977 Working Agreement with ALPA, captains or first officers who downbid to the position of flight engineer for reasons other than age were not similarly stripped of their seniority or severed from TWA. For example, those who are unable to maintain a first class medical certificate but are still medically qualified to become flight engineers may automatically displace or "bump" a less senior flight engineer without being required to bid for the downgraded position. If the captain or first officer lacks sufficient seniority to displace, he is not discharged; rather, he is entitled to go on unpaid medical leave for up to five years.
Similarly, the Working Agreement provides that a pilot whose position is eliminated at a domicile due to reductions in force may use his seniority to displace a less senior pilot in any status at his current or last former domicile, or in his current status anywhere in TWA's system. Like his medically disabled counterpart, the jobless pilot who lacks sufficient seniority to displace is not discharged. Rather, he is placed on furlough status which may extend for up to 10 years during which time he continues to accrue seniority for purposes of a recall.
In addition, TWA, as a disciplinary measure in response to demonstrated incompetence, has not discharged incompetent pilots but has permanently transferred them to lower positions (such as that of flight engineer) for which they are qualified, without requiring the pilot to bid for a vacancy. This practice apparently routinely occurs without contractual provision.
Following TWA's August 10, 1978, bulletin, ALPA prevailed upon TWA to impose additional restrictions on downbidding captains and first officers approaching age 60, which were designed to make it more difficult for downbidders approaching 60 to acquire status as flight engineers. The first restriction put forth by ALPA and adopted by TWA in January 1980 requires successful captain downbidders to "fulfill their bids in a timely manner." Prior to this rule downbidding captains who had successfully bid for positions as flight engineers were permitted to function as captains until age 60 and then begin training as flight engineers. Under the new rule the downbidding captains are required to complete their training and assume their positions as flight engineers before reaching 60, thereby losing the difference in pay and responsibility they would have enjoyed if they had been allowed to complete their careers as captains up to 60 years of age. This rule resulted in the cancellation of bids awarded three downbidding EEOC plaintiffs and in their involuntary retirement.
The second restriction, also imposed in January 1980, relates to the time by which the downbidder must complete his written examination for the position of flight engineer. Previously the downbidder was placed at age 60 on an off-duty-without-pay status until he had passed the examination. Under the new rule the captain's downbid is cancelled unless he has passed the examination when reporting for training. This rule, operating with the "effective date" requirement, forced the retirement of two EEOC plaintiffs.
The district court ruled that TWA's elimination of its age 60 retirement policy for flight engineers was not a "major" dispute under the RLA and that age 60 for flight engineers was not a BFOQ within the meaning of the ADEA precluding TWA from continuing those over 60 in that status. The court accordingly awarded summary judgment to TWA in the ALPA action. 547 F. Supp. at 1226-28; 506 F. Supp. at 238; 506 F. Supp. at 234-36.
With respect to the Thurston, et al. and EEOC claim the district court determined that TWA was also entitled to summary judgment, concluding that since none of the Thurston plaintiffs or EEOC claimants could show that a flight engineer vacancy existed at the time he applied and was eligible for the job "TWA was legally obligated to remove these pilots at age sixty under the FAA regulations. . . . TWA was not obligated, however, to offer these ex-pilots jobs which did not exist. To the extent jobs existed, TWA was justified in relying upon a seniority bidding system." 547 F. Supp. at 1229.
The parties agree that on these appeals there are no material issues of fact relating to liability and that the disputed liability issues may appropriately be disposed of by summary judgment. See Zweig v. Hearst Corp., 521 F.2d 1129, 1136 (9th Cir.), cert. denied, 423 U.S. 1025, 46 L. Ed. 2d 399, 96 S. Ct. 469 ...