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Giulio Musto, Aurea Avila, Donna v. Transport Workers Union of America

August 25, 2011

GIULIO MUSTO, AUREA AVILA, DONNA BATES, ANA GARCIA, JOSEPH E. DUNCAN, HERBERT CARRILLO, AGNES DALLAS, DAVE DENNY, ALFONSO FERGUSON, ANGELA TAYLOR HEADLEY, CAMERON KING, COLIN MAYERS, FEDERICO PAUL, IRWIN ROBERTS, JOSE RODRIGUEZ, RENFORD SCOTT AND CLAUDINE SMITH,
PLAINTIFFS,
v.
TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, LOCAL 501 TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO AND AMERICAN AIRLINES, INC., DEFENDANTS.



The opinion of the court was delivered by: Dearie, United States District Judge:

MEMORANDUM AND ORDER

Plaintiffs, a group of former employees of American Airlines who were laid off in 2002, bring this hybrid suit against defendants Transport Workers Union of America AFL-CIO ("TWU"), Local 501 Transport Workers Union of America ("Local 501") and American Airlines, Inc. ("American"). Plaintiffs allege violation of the Railway Labor Act, 45 U.S.C. § 151 et seq., against TWU and Local 501 for breach of their duty of fair representation, and against American for breach of the Collective Bargaining Agreement ("CBA"). The parties filed cross-motions for summary judgment. For the reasons stated below, plaintiffs' motion for summary judgment is denied and defendants' motion for summary judgment is granted.

I. Background.

A. The Parties.

Plaintiffs are former employees of American who worked at either John F. Kennedy International Airport ("JFK") or LaGuardia Airport ("LaGuardia") between 1995 and 2002. In 1995, plaintiffs were all classified as Title II Utility Men. Title II refers to the Collective Bargaining Agreement ("CBA") which covered plaintiffs.*fn1 Utility Men refers to plaintiffs' job function, which included cleaning buildings.

The Title II CBA was one of several CBAs that covered American employees, with each CBA covering a different subset of employees based on their Title Group. Another CBA (and the only other CBA relevant to this matter) was the Title III CBA, which covered American employees who were classified as Fleet Service Clerks or Junior Fleet Service Clerks. (R.7 at 22 (1995 Title III CBA); R.10 at 37 (2001 Title III CBA).) The Title III CBA was identical in all material respects to the Title II CBA. However, whether an employee was classified as a Title II employee or a Title III employee had significant implications relating to seniority. Seniority was determined by the employee's Occupational Group Title, and seniority accrued from the date of first assignment within the particular Title Group, regardless of the particular classification within that Group. (R.8 at 548 (1995 Title II CBA); R.9 at 44 (2001 Title II CBA).)

Defendant TWU serves as the collective bargaining representative of employees of American at numerous airports and in several classifications. Defendant Local 501 is TWU's local union representative at six airports (including JFK and LaGuardia) for three Title Groups (including Title II and Title III).

B. Elimination of Plaintiffs' Classification.

During the negotiations for the Title II CBA that was finalized in August of 1995, American and TWU agreed to contract out the work of cleaning buildings. (R.8 at 667 (8/15/95 Letter Agreement).) Up to that point the work had been performed by Utility Men, so American and TWU also agreed to eliminate the Utility Man position. (Id.) The agreement included protections for the Utility Men. The 1995 Letter Agreement memorializing the plan ("1995 LOA") stated that the Utility Men would be moved to either the Title II Plant Maintenance Man classification or the Title III Fleet Service Clerk ("FSC") classification, and that they would be "protected" in whichever classification they were moved to. (Id.) A subsequent letter from Mark Burdette, the Managing Director of Employment Relations at American, noted that former Utility Men would be "protected in the first classification in which they go." (R.18 (emphasis added).) The 1995 LOA also stated that "no employee [would] be forced to relocate to another station." (R.8 at 667.) Burdette later clarified this provision, stating that the commitment not to force Building Cleaners to relocate "does not extend to relocation as a result of displacement by a more senior employee, nor to schedule related reductions which may be required." (R.9 at AA0580 (1/19/96 Letter).) For various reasons discussed below, the plans to move plaintiffs into both the Plant Maintenance Man classification and the FSC classification proved to be problematic.

The plan to move Utility Men into the Plant Maintenance Man classification was problematic for a simple reason -- it was not possible to accommodate most of the Utility Men in the Plant Maintenance Man classification. The Plant Maintenance Man classification involved, inter alia, "work of a semi-skilled to skilled nature as a helper or assistant to an Automotive Mechanic or Facility Maintenance Mechanic," and "assist[ing] in storage, removal, and clean-up of hazardous waste." (R.8 at 608). This work required additional training that many of the Utility Men (including plaintiffs) did not have. Plaintiffs are all former Utility Men who admittedly did not qualify to be placed in the Title II Plant Maintenance Man classification.

The plan to move Utility Men to the FSC classification faced a different problem caused by the duel-track seniority system at American: it would have required transitioning Title II workers to a Title III classification. As stated above, employee seniority was determined from the date of first assignment within a particular Title Group. Because Utility Men had accumulated seniority as Title II employees, a transition to the Title III FSC classification would have caused them to lose all of the seniority that they had accumulated as employees of American Airlines.*fn2 Recognizing the seniority problem, American and TWU agreed that no former Utility Men would be forced to transfer into the FSC classification. (R.14; R.18.)

Not surprisingly, the seniority problem did not go away. Issues concerning seniority are frequently the most important issues that arise in CBA negotiations. Franks v. Bowman Transportation Co., 424 U.S. 747, 766 (1976) ("More than any other provision of the collective-bargaining agreement seniority affects the economic security of the individual employee covered by its terms."); In re Royal Composing Room, Inc., 848 F.2d 345, 356 (2d Cir. 1988) (Feinberg, C.J., dissenting) ("[Seniority] has become one of the cornerstones of American unionism. Seniority is the most important, and often the only, equity workers have in their company. It is one of the chief protections a worker has from management's vagaries, and it preserves the self-esteem and financial security of workers who have devoted their lives to building a company."). The failure of American and TWU to fix the seniority problem doomed the agreement from its inception.

At oral argument, counsel for TWU attempted to explain how the parties, who were all sophisticated actors with experience in labor negotiations, could have ever thought that this agreement would be a viable solution. He stated:

In the summer of 1995, the TWU and American Airlines were not just simply focusing on what are we going to do with the building cleaners at JFK and LaGuardia and can American outsource that work to non-employees and what are we going to do with the people who used to clean the buildings.

They are dealing with an entire contract, dealing with lots of employees in different classifications, in different titles . . . .

I think as a practical matter the answer to your question is, the parties have so much on their plate, they were trying to reach so many big issues, that on this one they said well, we think this would work as the solution. They threw it down as the August 15th letter of agreement and then quickly realized after they went home, took a shower and had a night's sleep, that it wasn't going to work as cleanly as they cobbled together at the negotiating table and then embarked on the process that eventually led us here. (7/14/11 Tr. at 11.) Plaintiffs do not contest this description of the events that led to the 1995 LOA. In short, both sides agree that the parties reached an agreement in 1995 that was doomed to fail because it did not resolve the key issue of seniority.

When American and TWU recognized that the plan to move former Utility Men to Title III Fleet Service was unworkable, they devised an alternative plan; they agreed to move the former Utility Men into the recently-created Title II classification of "Cabin Cleaner."*fn3 The 1995 Title II CBA described the scope of work for the Cabin Cleaner classification as "those functions required for the provisioning and cleaning associated with dedicated overnight (e.g. -Level 1 and fleet work) and International cabin cleaning (e.g.- BXT bill of work)."*fn4 (R.8 at 609.) Thus, by definition, Cabin Cleaner work overlapped considerably with Fleet Service work.

C. 1996 Arbitration Award.

Although the plan to move the former Utility Men to the Cabin Cleaner classification was intended to avoid the problems discussed above, it was not without its own problems. The first issue that arose following the reassignment dealt with the pay scale for former Utility Workers who were now classified as Cabin Cleaners. Because the base pay for Utility Men exceeded the top rate of pay for Cabin Cleaners, American took the position that the former Utility Workers were entitled to maintain their current hourly pay rate, but that they were not entitled to continue at their old pay progression. The Union responded by arguing that, because American had assured the Union that every employee would be protected in status and classification during the CBA negotiations, the Utility Men who were subsequently transferred to the Cabin Cleaner classification were entitled to continue on their former pay scale.

The parties submitted the compensation dispute to the General Board of Adjustment ("Board").*fn5 The Board summarized the issue before it as "whether the Company has failed to pay the former Utility Man pay progression rates to former Utility Men who were transferred to the Cabin Cleaner classification, and if so what the remedy shall be." (R.22 at 1.) On October 16, 1996, the Board issued an Award stating that the former Utility Men who had been reassigned to Cabin Cleaning would be assigned back to the Utility Man classification, and that they would be cross-utilized to any other classification where qualified. However, the Award stated that "where there is a recall list for a classification, cross-utilization of Utility Men will not be used to avoid a recall." (R.25 at 11.) None of the affected parties -- namely, the Company, the Union or the affected employee -- sought clarification from the Board, as they were entitled to do under the 1995 Title II CBA (R.8 at 575), or sought judicial review of the Award pursuant to section 3 of the RLA, 45 U.S.C. § 153. According to the CBA, other than the rights or privileges afforded the parties by the RLA, a decision made by a majority vote of a Board is "final and binding upon the parties to [the] dispute." (R.8 at 575.)

Shortly after the Board issued its decision, American circulated a letter to its various station managers informing them that the Award required American to "[r]eturn[] all former Utility Men who are currently Cabin Cleaners to the Utility Man classification," and allowed Utility Men to be "cross utilized daily into either Cabin or Fleet Service." (R.26.) The letter stated that "[n]othing in the award modifies the original contractual agreement between the parties eliminating the Utility Man classification. The classification of these employees to Utility Man does not reinstate the former Utility Man work as being included in the scope of the Maintenance agreement, nor does it necessitate the resumption of former Utility Man work which has been contracted out." (Id.) It also addressed some of the logistics of allowing Utility Men to be cross-utilized to perform FSC or Cabin Cleaning work. The letter stated: "Utility Men will have their own shift bid," and "Management may determine the appropriate allocation of Utility Men shifts as it does for any other classification." (Id.) Finally, the letter stated that "Utility Men may be cross utilized to a shift where a preponderance of their work is Cabin Cleaning, but will not be subject to the work restrictions of the Cabin Cleaning classification, i.e., they may do work such as Lav and water servicing, and exterior cockpit window cleaning which are not part of the Cabin Cleaning classification." (Id.)

In 2001, the Utility Man position was added back into the Title II CBA. (R.9 at AA0453, AA0464.)

D. Implementation of the 1996 Board Award.

In order to implement the 1996 Award, American assigned most of the Utility Men to the night shift cleaning aircraft cabins. (Chiofalo Dep. at 55; Gil Dep. at 36.) As a result, the Fleet Service Clerks who formerly worked that shift were required to bid other shifts, which the Fleet Service Clerks viewed as a violation of the 1996 Award.

On December 4, 1997, American and the TWU entered into a Letter of Understanding stating that the Company would cease hiring new employees into the (Title II) Cabin Cleaner classification. (R.29.) The parties agreed that, as Cabin Cleaner positions became available through attrition, their work would be assumed by (Title III) Fleet Service Clerks. (Id.) The purpose of the December 4, 1997 Letter of Understanding was to begin a process of transitioning all work performed by Cabin Cleaners back to Fleet Service Clerks. (Id.; Weel Dep. at 114-15.)

E. 1998 Arbitration Award.

In 1998, the Fleet Service Clerks filed a grievance with the Board arguing that cross utilization of Utility Men violated the 1996 Award or the 1997 Letter of Understanding. On June 17, 1998, the Board issued an Award denying the Fleet Service Clerks' grievance. The Award specifically held that regular use of Utility Men to perform Fleet Service or Cabin Cleaning work constitutes cross utilization, even though it differs from "the typical cross-utilization under the provisions of the agreement." (R.31.) It then held that such cross utilization of Utility Men did not violate either the 1996 Award or the 1997 Letter of Understanding. (Id.)

F. 2002 Elections for the Local 501 Executive Board.

In late 2001 and 2002, as a result of a severe downturn in the airline industry following September 11, 2001, American was forced to furlough a significant number of workers, including approximately six hundred Fleet Service Clerks. (R.76.) Not surprisingly, this furloughing of Title III Fleet Service Clerks, in conjunction with the continued cross-utilization of Title II Utility Men in the Fleet Service Clerk and Cabin Cleaning classifications, became an important issue in the 2002 election for the Executive Board of Local 501 ("Executive Board").

One of the objectives of the slate of candidates that included Michael Chiofalo for President and Albert Gil for Treasurer of Local 501 was the elimination of the Title II former Utility Men from cabin service. During the 2002 campaign, the Chiofalo/Gil slate of candidates ran in part on the platform that Title II workers should not be in cabin service. (Gil Dep. at 70.) Once the Chiofalo/Gil slate was elected to the Executive Board, that position became the official position of the Executive Board, which was made up entirely of Title III employees.*fn6 (Id. at 69; Chiofalo Dep. at 146-47 (As president, it was Chiofalo's position that "all of the work Title II people were doing in Cabin Service was Title III work.").)

The position of the Executive Board was not simply that it was improper to cross utilize Utility Men for Fleet work while Fleet Service Clerks were on layoff. At least some members of the Executive Board, including Chiofalo and Gil, believed that Title II employees should not have been cleaning cabins, regardless of whether they were classified as Utility Men or Cabin Cleaners. (Chiofalo Dep. at 454-55 ("[E]ven though there was a provision in the collective bargaining agreement [providing that there is a classification of Cabin Cleaner], the Local's position remained that notwithstanding that provision, the Cabin Cleaner work was Title III work."); Id. at 164-65 ("Between March of 1996 and December of 2002, that work belonged to Title III, and that if Title II personnel were performing it, they were performing it on the basis of being cross-utilized."); Gil Dep. 68-69, 71-72.) In their view, cabin service work belonged to Title III workers because it had "always [been] Title III before 1995. Going back to the 1940s." (Gil Dep. at 36-37.)

In addition, Chiofalo's resentment of Title II workers pre-dated 9/11 and the furloughing of Fleet Service Clerks. Kenneth Donahue, American's Customer Service Manager at LaGuardia, testified at his deposition about numerous conversations he had had with Chiofalo prior to 9/11 in which Chiofalo had said that he couldn't stand the Title II workers and that they were "nothing but an f-in headache." (Donahue Dep. at 106-10.) According to Donahue, Chiofalo believed that Title II workers should have been gone when they did away with their job as building cleaners, and that he had stated that he would "do [his] best to get these people out of here." (Id. at 74-75, 106-07.) And when Local ...


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