The opinion of the court was delivered by: CHARLES P. SIFTON
This is an action brought by plaintiff, the Association of Flight Attendants ("AFA"), pursuant to the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151 et seq., seeking an injunction to prevent defendant, United Airlines ("United"), from violating the seniority provisions of the collective bargaining agreement ("CBA") between the parties in staffing United's new base of operations in Paris, France.
Having considered the affidavits and exhibits as well as the legal and factual arguments presented in the papers in support of and in opposition to the motion at a hearing held on July 7, 1992,
I determine that a preliminary injunction in the form filed contemporaneously with this opinion is appropriate. What follows sets forth the findings of fact and conclusions of law on which this determination is based as required by Rule 65(a) of the Federal Rules of Civil procedure.
AFA is a labor union that serves as the certified and exclusive collective bargaining agent for United's more than 17,000 flight attendants. United is a major airline servicing many domestic cities as well as South America, Europe, and Asia.
The union and the company have entered into a CBA that regulates, among other terms and conditions of employment, the method of assignment of various scheduled routes and locations of employment. The current CBA was entered into on December 3, 1991.
The locations where flight attendants are based are known as "domiciles." United currently has thirteen domiciles, all of which are in the United States with the exception of one in London, England. Flights that do not leave from one of those domiciles are nevertheless staffed by attendants based at one of them.
Under the collective bargaining agreement currently in effect, flight attendants wishing to change domiciles "bid" for their desired location. These bids are to be granted on the basis of seniority. See Agreement §§ 12(B)(2)(B); 17(A)(3)(a); 22(a)(2). The Agreement provides in this regard:
Seniority shall govern all flight attendants in connection with their retention in case of furlough due to reduction in force, re-employment after furlough, preference in assignment of domicile as vacancies occur, and preference of assignment to monthly schedules provided that the flight attendant is sufficiently qualified for the conduct of the operation involved.
Special rules apply to bidding for international routes. In general, these routes, called "international operations," Agreement § 12(A)(1), are also "available for system bid." Agreement § 12(B)(2)(a). The CBA provides:
As indicated in the provision just quoted, the CBA treats "language qualified" flight attendants differently from all other attendants. Agreement § 12(C)(7)(a). Thus, language-qualified positions must be filled in seniority order from among the ranks of language-qualified flight attendants. Id. The agreement, however, strictly limits the number of foreign language-positions the company may designate on each flight, permitting two such spots on wide-bodied aircraft and one such spot on narrow-bodied aircraft. Agreement § 12(C)(7)(f).
United has expressed its dissatisfaction with these numerical limits on the number of language-qualified flight attendants and has attempted in collective bargaining to increase the number of language-qualified attendants serving on international routes.
According to both custom and the CBA, if United cannot meet its staffing demands for a particular vacancy because of a shortage of bids for the position from flight attendants on its seniority list, then it can hire off the street to fill the vacancy.
The CBA contains two other contract provisions referred to by the parties. CBA § 12(U)(6)(b) states:
Prior to announcing the opening of an International domicile outside the United States, the Company will meet with the [union] president or designee to review the terms and conditions for establishing the domicile. The recommendations of the Union shall be considered by the Company prior to establishing the domicile.
The CBA also contains a traditional savings clause which states in relevant part:
Should any part or provision of this Agreement be rendered invalid by reason of any existing or subsequently enacted legislation, such invalidation of any part or provision of this Agreement shall not invalidate the remaining portions thereof, and they shall remain in full force and effect.
United has a relatively short history in international service. It first went abroad in 1983 when it began flying to Asia. In 1986 it purchased Pan Am's Pacific routes; in 1990 it began flying to Europe; and in 1992 it acquired Pan Am's South American routes.
At some time not specified in the papers within the last two years, United began flying to and from Paris, France. Because it does not have a domicile in Paris, it has used flight crews from other domiciles to staff those flights. This apparently costs the airline more money than it would to locate a domicile there, because United must pay to transport attendants to staff Paris flights and must pay for accommodations and other incidental expenses incurred by attendants flying the Paris route. Accordingly, at some unspecified time in early 1992 United decided to add a Parisian domicile to its operations. The relocation of the domicile will not in itself create an increase in business; rather, it represents a diversion of it. United is not adding new international routes but simply reassigning routes it currently flies to the Paris domicile.
United first informed the union of its intention to open a Paris domicile on February 14, 1992, by sending a brief letter to Diane Tucker, the AFA's Master Executive Council President. The CBA obligates United to provide such notice. Agreement § 22(D)(1). That notice stated, inter alia, that opening of the domicile was "contingent on obtaining all necessary governmental approvals" and that the company was "currently evaluating . . . staffing levels." While the union president responded to the airline's invitation, mandated by the CBA, that she meet with the company to discuss the matter, the airline put off any such meeting for two months, until April 13, 1992. Thereafter, United determined that it would need some 275 attendants to fill all vacant positions, 50 of whom were to be language qualified.
During the period of time from February until April, United, without advising the union or flight attendants of what it was doing, entered into negotiations with unnamed French government officials on the subject of obtaining work permits or visas for the flight attendants who it anticipated would bid for the vacancies. Both sides present only sparse, second-hand accounts of what occurred during these negotiations -- a fact that is more understandable from the standpoint of the union, which did not even know they were going on, than it is from the standpoint of the airline whose representatives were in direct contact with the relevant government officials. Unidentified French counsel for United is quoted by United as saying that the French were reluctant to grant any visas and agreed to seventy-five for United States citizens only after "extended discussions" not otherwise described. No information is provided by United as to who first proposed the figure of seventy-five, what arguments were employed on both sides, how much time was devoted to the exercise, or who participated in it.
The union president for her part states that, in direct conversations with a French government official whom she identifies by name, she was told that United, not the French government, was the source of the seventy-five visa figure. Not only were the union and the flight attendants not advised of the conduct of these negotiations, but United has, since that time, refused to disclose information concerning the negotiations to the union.
The sizeable gap between the projected 275 proposed vacancies and the 75 visas was first disclosed by United to the union at a meeting between Union President Tucker and United on April 13, 1992. Here again, a dispute exists over what representations, if any, the airline made regarding whether it or the individual attendants would assume responsibility for arranging additional visas. Given all of the circumstances, I find at this stage that it is probable that United led the union to believe that it would, as it had earlier in London, undertake the responsibility of obtaining additional visas.
Three days later, on April 16, United notified the entire union membership of the new domicile by posting a notice, which the parties call the "April notice," on company bulletin boards at all thirteen domiciles in the United States and London. The CBA requires such notification. Agreement § 12(B). According to the notice, bids were due at the earliest date permissible under the CBA -- that is, within thirty days, by 8:00 a.m. CDT on May 18th, with awards to be announced the following day. The notice indicated the opening of "225 flight attendant vacancies, and 50 flight attendant French language vacancies."
The notice did not alert union members that many of them would have to seek visas on their own if they wanted to relocate to Paris. In fact, no such alert was given until the very eve of the award. To the contrary, a section of the April 16 notice entitled "Immigration" informed attendants that the French government had provided United with "documents which must be submitted by U.S. and Canadian citizen flight attendants . . . . These documents will be forwarded to you once your transfer has been awarded." Nowhere did the notice inform attendants that the French government had agreed to issue only seventy-five visas, and those only to United States citizens. In addition, the April notice included a section on "qualifications and training," which itemized certain types of equipment and safety procedures but nowhere mentioned immigration matters.
On April 28, some twenty days before bids were due, the company began mailing an information booklet to bidders.
That document contained a section ...