If u think ALPA dosnt remember. Read on, mind u this situation happened 20 yrs ago.
Foot notes are at the bottom.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
A. J. BERTULLI, JOE GRINDER, §
LARRY DOURIS, JOAN SANDSTROM, §
and MARC BLACKMORE, on behalf of §
themselves and all others similarly situated, §
Class Plaintiffs, §
vs. § CIVIL ACTION NO. H97-1841
INDEPENDENT ASSOCIATION OF §
CONTINENTAL PILOTS and §
CONTINENTAL AIRLINES, INC., §
CLASS PLAINTIFFS’ EMERGENCY MOTION FOR
PRELIMINARY INJUNCTION AND EXPEDITED RULING
Class Plaintiffs file this Emergency Motion for Preliminary Injunction and Expedited Hearing pursuant to Fed. R. Civ. P. 65 asking the Court to issue a preliminary injunction requiring Defendants Continental Airlines, Inc. (“Continental”
and Independent Association of Continental Pilots (“IACP”
 to re-order the Continental Pilots’ Seniority List (“Seniority List”
to reflect the status quo that existed before the Defendants unlawfully changed the Seniority List in early 1997. Because evidence has recently surfaced in this case that the Class Plaintiffs will be irreparably harmed in the near future, particularly in light of Continental’s recent announcements this week regarding furloughs, retirement of aircraft, and possible bankruptcy, it is imperative that this motion be resolved expeditiously to avoid further irreparable harm to the Plaintiffs in this case.
In support of their Motion, Plaintiffs would respectfully show to the Court the following:
NATURE OF THE CASE AND PROCEDURAL POSTURE
Plaintiffs filed this class action lawsuit in May 1997 alleging that their union, the Independent Association of Continental Pilots ("IACP"), breached its duty of fair representation ("DFR") in violation of the Railway Labor Act, 45 U.S.C. § 151, et seq., as amended ("RLA"), and violated rights of union democracy afforded to Plaintiffs under the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411(a), et seq. ("LMRDA"). Plaintiffs' claims arise out of unlawful agreements between the IACP and Continental Airlines, Inc. ("Continental"), Plaintiffs' employer at all relevant times. Pursuant to these agreements, the IACP (1) directed Continental to advance eleven pilots known as the Neale and Quigley groups ahead of approximately 1800 other pilots on the Continental pilot seniority list (the "Neale/Quigley changes"), (2) agreed to indemnify Continental for the litigation anticipated to result from the Neale/Quigley changes, and (3) agreed to deprive the 1800 harmed pilots of their individual rights to complain of these changes through the grievance procedures provided by § 11 of the IACP constitution.
Plaintiffs allege that the IACP violated § 101(a)(1) of the LMRDA by directing Continental to make the Neale/Quigley changes without first submitting the proposed seniority changes to a vote of the membership as required by the IACP's constitution and bylaws. See Plaintiffs' Compl. at ¶39. Plaintiffs allege that the denial of the 1800 pilots' grievance rights violated their due process rights under § 101(a)(5) of the LMRDA.
Plaintiffs also allege that the IACP breached its duty of fair representation under the RLA by engaging in conduct that was arbitrary, discriminatory, and in bad faith. See Plaintiffs' Compl. at ¶39. Specifically, the IACP's actions were arbitrary, discriminatory, and in bad faith because they did not further the interests of the bargaining unit as a whole, did not fulfill any meaningful policy, were not taken in furtherance of an existing and established process of adjusting seniority rights, furthered only the political and selfish interests of certain members, and discriminated against pilots who had not supported ALPA, the IACP's predecessor, which the IACP defeated in a certification election in 1996.
As the Court is aware, the procedural road this case has traveled has been long and winding, involving motions to dismiss, reinstatement of claims, interlocutory appeals, and still unresolved discovery disputes. Plaintiffs filed their Motion for Class Certification on January 21, 1999. On July 14, 1999, Plaintiffs filed a Motion to Compel and for Discovery Sanctions against Defendant IACP. The Court held an evidentiary hearing on Plaintiffs’ Motion for Class Certification on July 29, 1999. The IACP filed its Motion for Summary Judgment and a Motion in Limine on July 31, 1999. On September 30, 1999, the Court issued its Order certifying the Plaintiff Class as requested by Plaintiffs. The Court subsequently denied a Motion for Reconsideration of that Order on January 21, 2000, and the IACP and Continental appealed the certification order to the Fifth Circuit Court of Appeals which upheld the class certification on February 13, 2001. On July 12, 2001, the Court issued the Notice of Class Action Certification (“Class Notice”
, which was subsequently served on members of the Class consistent with the Court’s July 12 Order. Discovery resumed subsequent to the Court’s issuance of the Class Notice. Members of the Class had until September 12 to opt-out of the Class. Approximately 250 of the 1800–plus Class members did so.
STANDARD FOR ISSUANCE OF PRELIMINARY
INJUNCTIVE RELIEF IN THIS CASE
The decision to issue a preliminary injunction pursuant to Fed. R. Civ. P. 65 is within the sound discretion of the Court based on the unique facts and circumstances of each case. See, e.g. Enrique Bernat F.S.A. v. Guadalajara, 210 F.3d (5th Cir. 2000). Although a preliminary injunction is an extraordinary remedy, it should be granted when the moving party, “by a clear showing, carries the burden of persuasion.” Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908, 917 (5th Cir. 2001) (quoting White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989). To meet this burden the movant must demonstrate the following:
First, the movant must establish a substantial likelihood of success on the merits. Second, there must be a substantial threat of irreparable injury if the injunction is not granted. Third, the threatened injury to the plaintiff must outweigh the threatened injury to the defendant. Fourth, the granting of the preliminary injunction must not disserve the public interest.
Id. At 918. As set forth below, Class Plaintiffs easily satisfy these requirements in this case.
EQUITY REQUIRES THAT THE COURT QUICKLY ISSUE A PRELIMINARY INJUNCTION UNDER THE UNIQUE FACTS OF THIS CASE
A. Class Plaintiffs will Suffer Imminent Irreparable Injury if the Court does not Issue a Preliminary Injunction.
The evidence in this case demonstrates that Class Plaintiffs have been materially harmed by the unlawful seniority changes made by the IACP and Continental. This harm has materialized in a number of ways. Some pilots have been assigned to fly smaller, less profitable equipment than they would have been assigned had the changes never been made. Others have been forced to fly as a first officer instead of a captain. Still others were forced to fly inferior or less profitable monthly lines of time, or to fly as a reserve pilot because of the seniority changes. Because of the way the Seniority List is used to staff Continental’s aircraft, and ultimately to compensate its pilots, the Class Members will face two very serious types of imminent, irreparable harm if the Court does not issue a preliminary injunction restoring the Seniority List to its proper order while this case proceeds.
1. The Changes the IACP and Continental Made to the Seniority List will Irreparably Alter the Results of all Future System and Monthly Staffing Bids Conducted by Continental.
As named Plaintiff Marc Blackmore testified at his deposition and at the class certification hearing, “seniority in the airline business dictates every facet of a pilot’s life. Everything [they] do as an employee of Continental Airlines is determined by [their] . . . seniority position.” (Transcript Ex. at 40.)  The collective bargaining agreements between the IACP and Continental confirm this:
seniority . . . shall govern all pilots in case of promotion or demotion to Captain, International Relief Officer, First Officer, or Second Officer, retention in case of reduction in force, assignment or reassignment due to expansion or reduction in flying time, recall after release due to reduction in force, and choice of vacancies.
(PSJ Ex. 41, 43) The IACP’s sole witness at the class certification hearing, Michael Hynes, testified that “seniority has an effect on every aspect of . . . employment at Continental.” (Transcript Ex. at p. 153.) Even the IACP’s expert admitted as much.
A pilot’s seniority position directly affects the type of aircraft a pilot will fly at Continental and the rate of pay the pilot will receive while flying. (Transcript Ex. at pp. 42-50.) Seniority dictates what flight schedule the pilot can fly each month and the pilot’s ability to schedule vacation. (Transcript Ex. at pp. 42-50.) Pilots at Continental receive their work assignments at Continental by bidding their seniority against other pilots in two basic bid processes: they bid their seniority for placement as a captain or first officer in a particular class of aircraft out of a specific geographic base through periodic “System” Bids, and they bid their relative seniority for monthly flight schedules within their aircraft class and base (which determines their actual flight hours, their hours away from their base, the hotels they will stay in, and their destinations) through “Monthly” Bids. (Transcript Ex. at pp. 42-50) In both types of bids, a pilot’s relative seniority dictates his or her ability to maximize pay, benefits, and, most important, quality of life. (Transcript Ex. at pp. 42-50.)
Shortly after the Court issued the Class Notice, Continental supplemented its responses to discovery Plaintiffs originally propounded in December 1998. In so doing, Continental produced evidence that conclusively demonstrates that the unlawful seniority changes have affected, and will continue to affect, the outcome of the System and Monthly Bids in a way that can never be fully remedied. At Plaintiffs’ request, Continental re-ran all of the System Bids conducted by Continental since January 1997 using the Seniority List as it would have been had the unlawful seniority changes not been made. Continental then created a chart listing all Continental pilots whose System Bid results came out different because of the changes. (A true and correct copy of the chart is attached hereto as Exhibit “A.”
The chart reflects the following:
System Bid No. No. of Pilots with Different Award
See Ex. A. While a few of these pilots received higher-paying equipment, most received lower-paying equipment. Many of the pilots were assigned to a different base (i.e. Cleveland (CLE) instead of Newark (EWR)) or were assigned to fly as a first officer instead of as a captain (F vs. C). Each of these differences were the direct result of the changes made to the pilots’ relative seniority when the IACP and Continental unlawfully changed the Seniority List. This is precisely the type of harm Plaintiffs’ expert, Alan C. Gibson, described in his written opinion and in his deposition in this case. See PSJ Ex.8, 44.
Because only pilots assigned to a particular sub-base (i.e. Cleveland 737) participate in Monthly Bids for that sub-base, the results of the Monthly Bids conducted since the seniority changes took effect are necessarily different. The misplaced pilots listed on Continental’s chart only submitted Monthly Bid preferences for the sub-base they were actually awarded, not the one they would have been awarded had the Seniority List not been altered. As such, counsel for the IACP and Continental have taken the position, and continue to take the position, that it is impossible to re-run any of the Monthly Bids conducted to date or to determine what would have happened within those sub-bases had the Seniority List been unadulterated. Under Defendants’ theory, it would not be possible to determine after-the-fact whether a pilot was forced to work more or whether the quality of any particular pilot’s life was diminished as a result of his or her lowered seniority.
The only way to prevent the pilots from receiving incorrect System and Monthly Bid awards in the future is to re-order the list going forward. Without changing the list now, we may never be able to prevent the full harm the seniority changes will further cause the individual pilots in the Class. Moreover, because the seniority changes have had a ripple effect beyond the class, as evidenced by Continental’s chart, the harm from the seniority changes will even be felt by pilots who are not Plaintiffs in this case. It is therefore imperative that a preliminary injunction be issued immediately to prevent the pilots from suffering additional irreparable harm in the near future.
2. It is Imperative that a Preliminary Injunction Quickly Issue Because Class Plaintiffs Face a Greater Risk of Furlough and Because Continental may Declare Bankruptcy in the Next Several Weeks.
In addition to the irreparable harm that will continue to occur in the Monthly and System Bids, the Plaintiffs face a greater risk of furlough because of their diminished relative seniority at Continental. On Saturday, September 15, 2001, Continental Airlines announced that it will be reducing its flight schedule, retiring its planes early, and furloughing approximately twenty percent of its workforce, including at least 1,000 pilots. (A true and correct copy of the transcript of Continental’s September 15 press conference is attached hereto as Exhibit “B.”
It is expected that additional pilots will be furloughed in the coming months. The IACP itself sent two e-mails to its members, one stating “[i]t is expected that a significant number of Continental and Continental Express pilots will be furloughed effective October 1, 2001, with additional furloughs over the following five (5) months.” (A true and correct copy of the IACP’s September 18 and 20, 2001 e-mails to its membership are attached hereto as Exhibit “C.”
While there may presently be uncertainty regarding the total number of pilots who will be furloughed in the weeks and months to come, there is no doubt concerning how those pilots will be selected for furlough as part of Continental’s announced reduction-in-force: they will be furloughed in reverse seniority order. As set forth in the current IACP/Continental collective bargaining agreement, “retention in case of reduction in force, assignment or reassignment due to expansion or reduction in flying time, [and] recall after release due to reduction in force” are all based on relative seniority. PSJ Ex. 43. This means that all of the Class Plaintiffs will unquestionably be at greater risk of furlough than they would otherwise be had the IACP and Continental not unlawfully changed the Seniority List. See PSJ Ex. 8, 44. It goes without saying that pilots who are furloughed will suffer significant personal harm above and beyond any loss of income they may suffer. The change in lifestyle and emotional distress associated with being furloughed, even if only for a short time, will be substantial. The only way to prevent the Class Plaintiffs from being unfairly and unlawfully subjected to furlough is to quickly re-order the Seniority List to put the pilots back where they belong relative to their peers.
In addition to announcing mass layoffs, Continental’s Chief Executive Officer, Gordon Bethune, has repeatedly stated publicly over the last week that Continental will likely declare bankruptcy if the economy does not quickly recover and the airline does not secure relief from the federal government. During Continental’s September 15 press conference on this issue, the following dialogue occurred:
[Reporter]: [W]hat’s the likelihood, if this continues, that Continental could face bankruptcy?
Mr. Bethune: We are taking all immediate steps to conserve the available cash we had going into the debacle and we anticipate , if you wanted to try to financially reorganize the company, you would need some remaining cash. . . . That’s why we need to do something today. We can no longer afford to wait for the Congress or someone else to act. We are doing this in a survival mode.
. . .
Mr. Walker: The question is if we don’t get some aid from Congress, will we file for bankruptcy as early as within the next month.
Mr. Bethune: Let me be real clear that given the current loss projection and the forecasted 50 percent level of revenue that is forecasted, it says that we would be prudent, if that happens, to reorganize this company sometime in late October, before it actually stops and grinds to a halt.
See Ex. B at pp. 6, 9-10. Mr. Bethune made similar statements during an appearance on the ABC network’s “This Week” television program on Sunday, September 16. Continental’s stock dropped more than 50% in the three days following Mr. Bethune’s statements, lending strong credence to his warnings.
Should Continental file for bankruptcy, the company would move to stay this case and all others while the bankruptcy proceeded. This means that if the Court elects not to issue a preliminary injunction at this time, it will be more difficult, much more time will pass, and much more harm will occur before Class Plaintiffs may be able to obtain injunctive relief at a later date. The only way to protect the Plaintiffs’ is for the Court to issue a preliminary injunction directing Continental and the IACP to immediately restore the Seniority List to its proper order now.
B. The Potential Injury to the Class Plaintiffs Seriously Outweighs any Conceivable Injury to the IACP or Continental, and Granting Injunctive Relief Does Not Disserve the Public Interest.
There can be little doubt that ordering Continental and the IACP to re-order the Seniority List will not harm either entity at all The relative order of the pilots on the Seniority List is not a matter of concern to Continental. The company made this clear to the IACP in the course of their communications leading up to the seniority changes at issue here. Fixing the list will not interfere with Continental’s operations in the short-term or the long-term and will have no effect on the general public. The IACP (now ALPA) will not suffer any financial harm either if the Seniority List is re-ordered. The union will collect the same amount of dues, have the same expenses, and continue to conduct its business in the same way if injunctive relief is granted. Although the eleven pilots whose seniority will be lowered by such an action would suffer some harm, that harm is outweighed by the harm the approximately 1600 Class Plaintiffs (and other pilots) will suffer if preliminary injunctive relief is denied. Those eleven pilots have already unlawfully benefited from their seniority windfall the last four-plus years. Because the imminent harm to the Class Plaintiffs is substantial, and the potential harm to the Defendants is negligible, at best, issuance of the preliminary injunctive relief requested by the Class Plaintiffs would be consistent with the requirements of Fed. R. Civ. P. 65 and would serve the public interest because it would result in substantial justice.
C. Plaintiffs Have Demonstrated a Strong Likelihood of Success on the Merits.
The evidence establishes that the IACP violated the RLA and the LMRDA when it passed board resolutions and entered into agreements with Continental by which the relative seniority of eleven pilots who allegedly suffered harm because of their loyalty to the Air Line Pilots Association ("ALPA") was enhanced at the expense of approximately 1800 Continental pilots who either crossed ALPA picket lines to work for Continental or who joined Continental through mergers with other non-union airlines. In making the seniority changes at issue in this case, the IACP discriminated in favor of pilots who showed loyalty to the IACP's predecessor union, ALPA, at the expense of replacement pilots and merged pilots with no demonstrated history of loyalty to ALPA. The evidence demonstrates that the IACP leadership effected the seniority changes to further their own personal aspirations and to curry favor with ALPA to facilitate an affiliation between the two unions that was contrary to the will of the IACP membership. (As the Court is aware from another case filed before it by a different group of Continental pilots challenging a proposed “merger” between the IACP and ALPA, ALPA successfully returned to Continental earlier this year, consistent with Plaintiffs’ allegations in this case.) Knowing that the IACP membership would not support the IACP's decision to favor ALPA loyalists over others, the IACP leadership ignored the union's constitutional procedures and deprived the IACP membership of their right to vote on the seniority changes at issue. The evidence demonstrates that the IACP's actions were made in bad faith, for discriminatory purposes, and were arbitrary and unreasonable.
1. Summary of the Material Facts in this Case
Continental has been a carrier covered by the RLA for many years. Following the acquisition of Continental by Texas International in the early 1980's, the Continental and Texas International pilot seniority lists were merged after an arbitration conducted by Marcia Greenbaum. See PSJ Ex. 7. The award issued after this arbitration, on August 18, 1982, is called the "Greenbaum Award," and was formally titled the "Seniority Integration and Fence Agreement." A final seniority list that accomplished the merger and integration called for by the Greenbaum Award was promulgated on July 31, 1983. See PSJ Ex. 7.
On September 24, 1983, Continental terminated operations and sought protection from the Bankruptcy Court by the filing of a Chapter 11 bankruptcy petition. See PSJ Ex. 7 at p. 17. Approximately three days later, Continental resumed operations under emergency work rules, having set aside and cancelled all labor contracts with various employee groups at Continental, including all pilots and first-officers. See PSJ Ex. 7 at p. 18. As of September 24, 1983, a large number of Continental pilots were on furlough status. See PSJ Ex. 7 at p. 17. All of these furloughed pilots were recalled by Continental shortly after it resumed operations; some furloughed pilots accepted the recall and returned to work and others did not. Id.
On October 1, 1983, ALPA, the voluntarily recognized bargaining representative of Continental's pilots, began a strike against Continental that continued for two years. See PSJ Ex. 7 at pp. 17-18. During the two years of the ALPA strike, Continental lawfully hired many pilots to replace those furloughed pilots who did not return to work when Continental resumed operations in September 1983. See id. Also during this time, Continental and ALPA were negotiating to settle the ALPA strike. See PSJ Ex. 7 at p. 19. By the fall of 1985, Continental and ALPA had resolved most of the issues between them and were engaged in intense, extended, and contentious negotiations to settle the remaining issues. Id.
Beginning on October 18, 1985, Continental and ALPA voluntarily submitted the issues they could not agree upon to Bankruptcy Judge T. Glover Roberts. See PSJ Ex. 7; 36. By the express agreement of the parties, Judge Roberts functioned both as the judge of the Bankruptcy Court and as an interest arbitrator with the power to make a final and binding determination of the unresolved issues between Continental and ALPA. See PSJ Ex. 7;36. Judge Roberts issued his Order and Award disposing of all issues, both agreed and arbitrated, on October 31, 1985. After proposal of certain "technical corrections" and resolution of several logistical matters left open at the time the Order and Award was entered, Judge Roberts entered his "Order Amending Order and Award dated October 31, 1985" on November 19, 1985 (the "Amended Order"). See PSJ Ex. 15.
Pursuant to the Amended Order, the seniority and recall rights of all then present and former pilots of Continental were determined. See id. Subparagraph I.B.3(a) of the Amended Order, entitled "Seniority List," provided as follows:
(a) The Continental/TXI integrated pilot seniority list effective July 31, 1983 [the Greenbaum Award list], will be revised by deleting all pilots who have resigned, retired, elected severance, not responded to the Notice in paragraph 5(a) below, or been terminated for . . . Pilots on furlough status as of September 24, 1983 who are not currently active or on authorized leave may have their seniority adjusted to reflect credit only for periods of active service in accord with subparagraph (c) below.
(Emphasis added.) Id. Subparagraph I.B.3(c) provided as follows:
(c) Pilots on the integrated pilot seniority list effective July 31, 1983 who are on furlough status as of September 24, 1983 and who are not currently active or on authorized leave shall remain on the seniority list in accord with the provisions of this paragraph. The seniority and seniority number of such striking pilots holding seniority numbers up to and including number 1897 shall remain intact and unaffected. The seniority and seniority number of such striking pilots holding numbers 1898 through 2025 will be subject to a seniority integration process with pilots hired since September 24, 1983 whereby each such returning furloughee will be assigned a revised seniority number upon the earlier of (1) his returntopay status or (2) January 1, 1987; the revised seniority number will be based on that pilot's length of active service as of the date of such assignment in relationship to the length of active service of pilots hired since September 24, 1983, i.e. the returning furloughees' new seniority number will be in rank order behind a pilot with more time in active service and ahead of a pilot with less time in active service. Time on leave, on furlough, on strike or awaiting recall does not constitute active service for purposes of this Section. This Order and Award modifies the Seniority Integration and Fence Agreement executed August 18, 1982 and the integrated seniority list [of July 31, 1983] issued pursuant thereto.
(Emphasis added.) Id. As indicated by the emphasized text, Judge Roberts, in his role as interest arbitrator, integrated the seniority of those pilots who were furloughed at the time the strike began and who did not return to work with the seniority of those pilots who had been hired since September 24, 1983. Id. The seniority list established by the Amended Order (the Seniority List) built upon and then ultimately supplanted the Greenbaum Award seniority list. Id. The Amended Order provided that the Bankruptcy Court would retain continuing jurisdiction to enforce the terms of the Amended Order. Id. The provisions of the Amended Order were to expire when the "last returning striker assumes a captain position at Continental Airlines." Id.
Pursuant to the terms of the Amended Order, those pilots who had not returned to Continental prior to its entry were given three options by which they could thereafter return to active service. See PSJ Ex. 7 at p. 30, ln. 6 - p. 31, ln. 6; PSJ Ex. 10 at p. 22, ln. 12 - p. 23, ln. 3; PSJ Ex. 15. Option 1 pilots waived all claims against Continental and tendered an immediate, unconditional offer to return to work. Id. Option 2 pilots waived all claims against Continental and resigned, in return for payment of a onetime severance based upon their length of service with Continental equivalent to approximately $4,000 per year of service. Id. Under Option 3, pilots who had not returned could tender an unconditional offer to return to active service without waiving their right to assert labor claims against Continental. Id. Option 1 pilots were returned to active service first under the Amended Order. Id. These pilots were reintegrated into the Seniority List relative to other Option 1 pilots. Id. After all Option 1 pilots had returned to active service, the recall of Option 3 pilots who tendered unconditional offers to return to work began; Option 3 pilots were recalled in the order Continental had received their offers to return to work. Id. Under paragraph I.B.4 of the Amended Order, the recall rights of all pilots expired on December 31, 1988, and any pilot who had not returned to service with Continental by that date was considered terminated. Id.
The Amended Order was both appealed and collaterally attacked in duty of fair representation litigation brought against ALPA and Continental by pilots who felt that the Amended Order was prejudicial to the most junior strikers and had been improperly "agreed to" by ALPA. See O'Neill v. Air Line Pilots Ass'n, Int'l, 499 U.S. 65 (1991); In re Continental Airlines, 981 F.2d 1450 (5th Cir. 1993). All challenges to the seniority integration and return-to-work provisions of the Amended Order were ultimately rejected, and the seniority terms of the Amended Order were upheld as final and binding. Id. Between November 1985, when the Amended Order was entered, and November 1996, when Continental agreed to the actions of the IACP complained of herein, Continental and all of the approximately 5,000 pilots employed by Continental relied upon the Seniority List for all purposes. The Seniority List became the unchallenged predicate for three subsequent, successive seniority integrations that were arbitrated when Continental acquired New York Air, Frontier Airlines, and People Express Airlines. See PSJ Ex. 7 at pp. 30-31; PSJ Ex. 16; PSJ Ex. 17.
After the entry of the Amended Order, the 128 furloughed pilots whose relative position on the Seniority List was affected by the Amended Order (those holding seniority numbers 1898 through 2025) made their own decisions concerning the three options provided by the Amended Order. Forty-four of these furloughed pilots accepted the recall request in 1983 and returned to work immediately; their seniority numbers were governed by the Greenbaum Award seniority list and were unaffected by the Amended Order. See PSJ Ex. 36 at p. 2. Thirtyone pilots elected Option 2 and resigned upon receipt of their severance payments. Id. Thirtyfour pilots did not return to work at Continental and were removed from the recall list after expiration of their reinstatement rights on December 31, 1988. Id.
Subsequent to the issuance of the Amended Order, ALPA was decertified as the collective bargaining agent for the Continental pilots. Between 1985 and 1993, the Continental pilots were not represented by any union, instead dealing with Continental through an Operations Group ("Ops Group") composed of Continental pilots. See PSJ Ex. 1 at pp. 23-24. Continental provided its pilots with a grievance process through which pilots could complain of mistakes or unfair treatment by the airline; the process contemplated that pilots could have their claims heard by a panel of pilots selected equally by management and the pilot group, and ultimately by an arbitrator if the pilot panel deadlocked. Id. Prior to the formation and formal recognition of the IACP as the Continental pilots' union in 1993, several Continental pilots whose relative seniority had been adjusted under the Amended Order utilized Continental's grievance procedures and the courts to attempt to force Continental to change their relative seniority positions on the Seniority List as if the Amended Order had never applied to them. Id. at pp. 31-32. This was attempted by
a number of pilots, including Terry Neale ("Neale"), Cam Dooley ("Dooley"), and others. Id.
Neale's and Dooley's grievances concerning their relative seniority positions on the Continental seniority list were rejected, and their seniority positions on the Seniority List were found to be correct. See PSJ Ex. 1 at p. 21, ln. 16 - p. 22, ln. 6; p. 31, ln. 10 - p. 32 ln. 7; PSJ Ex. 7. Neale and Dooley were also involved in class action litigation against Continental concerning the Seniority List, and in each instance the Seniority List was upheld. See PSJ Ex. 1 at p. 30, ln. 4-8. Continental pilots Bob Hornack ("Hornack") and Jim De Maria ("De Maria") also unsuccessfully challenged their seniority positions at Continental through litigation. See PSJ Ex. 7 at p. 51, ln. 7 to p. 53, ln. 4.
In 1993, numerous Continental pilots worked together and created an association they called the Independent Association of Continental Pilots, the IACP. See PSJ Ex. 11 at p. 16, ln. 3-5. At that time, ALPA campaigned to once again become the Continental pilots' union. Id. Following a certification election that revealed that the IACP was overwhelmingly supported, the IACP was certified as the bargaining agent for Continental's pilots by the National Mediation Board. Id. The certification of IACP was the culmination of organizing activity that had begun in 1991, and it represented a clear rejection of ALPA.
Shortly after the IACP was certified, either in 1993 or 1994, Neale, Hornack, De Maria, Bruce Wimberly ("Wimberly"), and Bill Stinger ("Stinger") (collectively referred to as the "Neale Group") began intense lobbying of IACP's board to "restore" their seniority to the relative positions they would have occupied on the Seniority List had the ALPA strike never occurred and the Amended Order never existed. See PSJ Ex. 11 at pp. 145-49. Although these pilots had returned under the Amended Order and had been employed for almost ten years under its terms, the Neale Group contended that "restoration" of their prestrike seniority was warranted because Continental management had allegedly punished them for honoring the ALPA strike. Id. The IACP's President, Bob Wilson ("Wilson"), contacted Continental's Director of Flight Operations, Fred Abbott ("Abbott"), in 1994 about changing the relative seniority of the Neale Group members. He was told that the company would consider making the changes if the IACP requested them. See PSJ Ex. 1 at p. 34, ln. 22 to p. 36, ln. 17. Wilson made no such request at that time.
After Neale made a formal presentation to the IACP board of directors in 1994, the IACP requested that its attorney, Daniel Katz ("Katz"), provide the union with advice regarding whether the union could lawfully adjust the seniority of the Neale Group pilots above the seniority of pilots who had not honored the ALPA strike conducted nearly 10 years earlier. See PSJ Ex. 19. Katz provided the union leadership with a lengthy memorandum on October 13, 1994 ("1994 Katz Memo") in which he advised against making the seniority changes requested by the Neale Group and reminded the IACP leadership of its obligation to fairly represent the interests of all members of the IACP. Id. Katz also cautioned the IACP leadership that because the Seniority List resulting from the Amended Order had served as the predicate for binding seniority arbitrations integrating the seniority of the New York Air, Frontier Air, and People Express pilots with Continental pilots after those airlines merged, moving the Neale Group pilots up on the list relative to their peers would circumvent the results of those binding arbitrations and potentially cause the seniority integrations to be re-arbitrated. Id. Katz warned the IACP that the proposed Neale Group seniority changes "would dismantle not only an element of the Order and Award [the Amended Order], but also of each of the subsequent seniority integrations as well." Id. at p. 17. In fact, the seniority adjustments called for by the Amended Order were specifically contemplated and accounted for during the seniority arbitrations governing Continental's mergers with New York Air, Frontier Air, and People Express. See PSJ Ex. 16; PSJ Ex. 17. After receiving the 1994 Katz Memo, the IACP took no further official action in 1994 or 1995 on behalf of the Neale Group or any other pilot whose seniority was allegedly adjusted under the seniority provisions of the Amended Order.
In the fall of 1995, IACP President Wilson told IACP Secretary/Treasurer Mark Benton that he wanted to become the president of ALPA. See PSJ Ex. 2 at p. 108, ln. 6-7. Wilson had supported ALPA during the 1983-85 strike, he supported ALPA during its organizational efforts in 1993, and he was an inactive member of ALPA while serving as the IACP's president. See PSJ Ex. 14 at p. 26, ln. 16-22. Wilson knew the president of ALPA, Randy Babbitt ("Babbitt"), personally from the days when ALPA represented the Continental pilots. See id at p. 27, ln. 3-21. There had been rumors in the airline industry that Continental might acquire or be acquired by another airline. During this time period, IACP President Wilson and IACP Vice President Bill Borrelli ("Borrelli") claimed that Continental CEO, Gordon Bethune ("Bethune"), came to the IACP offices to suggest that IACP pilots would be better protected in a merger if the Continental pilots were subject to ALPA merger provisions. See PSJ Ex. 14 at pp. 22-23. Although Bethune denied that any such meeting occurred, Wilson used his alleged meeting with Bethune to convince the IACP board to approve an affiliation between the IACP and ALPA. See PSJ Ex. 21.
Wilson did not deny that when Wilson and others met with ALPA President Babbitt in November and December of 1995 regarding the possibility of an ALPA/IACP merger, Babbitt communicated to the IACP's leaders that the ALPA leadership was concerned about the fact that Continental was a "scab" airline by virtue of the pilots at Continental who crossed ALPA picket lines during ALPA's 1983-85 strike against the airline. See PSJ Ex. 14 at p. 52, ln. 20 - p. 53, ln. 1. Calling someone a “scab” is intended to be an insulting and demeaning name. Although Wilson claimed at his deposition that he stood by the Continental replacement pilots during his meetings with ALPA representatives, he apparently provided ALPA with information about the "scabs." As reported by United Airlines ALPA Council 57 in February 1996, "[a]ccording to Captain Bob Wilson, Continental MEC Chairman, there are 1,186 scabs on the [Continental] property out of a pilot group of 4,618." PSJ Ex. 29. That number roughly correlates with a copy of a "scab list" provided by Wilson to IACP Secretary/Treasurer Mark Benton. See PSJ Ex. 30.
In January 1996, after ALPA had expressed concerns about the scabs at Continental, the IACP board of directors reversed course and responded favorably to the lobbying of the Neale Group pilots. In the course of "analyzing" the Neale Group's position, the IACP board identified an additional group of five pilots that the board concluded had received improper seniority numbers because of the Amended Order. These pilots, hereafter called the "Quigley Group," were primarily People Express pilots who were stricken from the Amended Order recall list on January 1, 1989, because they chose, of their own volition, not to return to work at Continental. See PSJ Ex. 36. Because they remained at People Express instead of returning to Continental, they only subsequently entered the Continental Pilot Seniority list at all when Continental acquired People Express and the seniority lists of the two airlines were merged and integrated. See PSJ Ex. 36. In other words, most of the Quigley Group pilots had been offered recall and chose to remain at People Express, voluntarily relinquishing their rights to Continental seniority because they believed it was in their best personal interest to do so. See PSJ Ex. 36.
In January 1996, the IACP passed a resolution "consenting" to the "restoration" of the Neale and Quigley Group pilots' relative seniority positions as part of an alleged settlement being contemplated by Continental and a class of pilots suing Continental over seniority issues. See PSJ Ex. 23. The IACP's leadership did not formally investigate the claims of any of the Neale or Quigley Group pilots. See PSJ Ex. 11 at p. 169, ln. 25 - p. 170, ln. 2. The board's resolution was subject to Continental's agreement to the restoration. Id. In responding to the IACP's resolution by letter on January 30, 1996, Continental informed the IACP's leadership and its counsel that there was no such settlement in the works, but that Continental was willing to make the seniority changes. See PSJ Ex. 28. Continental's Managing Attorney, Daniel P. Casey ("Casey") emphasized that "both the IACP and the Disenfranchised Pilots have repeatedly been told by the Company . . . that if the IACP is willing to accept the responsibility for the effects of the decision, the Company will agree to alter the seniority" as requested by the union. Id.
Between January and May of 1996, leaders of the IACP and ALPA negotiated the terms of a possible merger or affiliation between the unions. See PSJ Ex. 11 at p. 25. Although the IACP leaders claimed that they would ensure that all IACP members would be eligible for membership in ALPA if a merger occurred, there was no guarantee that every IACP member would be admitted into ALPA. See PSJ Ex. 11 at p. 74, ln. 6-8. On March 29, 1996, the IACP sent ALPA a letter indicating that the IACP leadership would approve the merger agreement with three revisions. See PSJ Ex. 31. One of these revisions provided that all IACP members, including replacement pilots, would be eligible for membership in ALPA. Id. ALPA did not immediately respond to the IACP's March 29 letter in writing, although there were regular telephone communications regarding the substance of the merger agreement. See PSJ Ex. 11 at p. 75, ln. 25 - p. 76, ln. 9. On May 1, 1996, the IACP board of directors passed a resolution withdrawing the IACP's proposed changes to the ALPA/IACP merger agreement and resolving to move forward with the merger effort. See PSJ Ex. 11.
The very next day, May 2, 1996, the IACP board of directors passed a resolution directing the restoration of the seniority of the Neale and Quigley Groups as though the Amended Order never existed. See PSJ Ex. 25. At this point, the IACP leadership had made no formal effort to study or investigate the claims or seniority rights of any of the Neale or Quigley Group pilots. See PSJ Ex. 11 at p. 176, ln. 6-10. Pursuant to the May 2, 1996 resolution, IACP President Wilson sent a letter to Continental directing the airline to implement the Neale and Quigley Group seniority changes. See PSJ Ex. 14. The IACP did not, however, notify the full IACP membership of its actions in writing at that time. The IACP received notice from ALPA on May 21, 1996 that ALPA had decided not to proceed with a merger of the unions because of the IACP's proposed changes to the merger agreement and because of opposition within ALPA to representing the replacement pilots at Continental. See PSJ Ex. 11 at p. 83, ln. 19 - p. 84, ln. 18. Notwithstanding ALPA's notice of this fact to the IACP, the ALPA merger ballots were sent to the IACP membership on May 22, 1996, and merger discussions between the unions continued. Id. at p. 83, ln. 10-18. The ALPA merger ballots were subsequently destroyed and were never counted. See id.
On May 28, 1996, Continental responded to the IACP's earlier letter directing Continental to restore the prior seniority numbers of the Neale and Quigley Groups. See PSJ Ex. 33. Although Continental's Casey noted that it was a "complete mystery" how it could be argued that the Neale and Quigley pilots had ever been disenfranchised or punished, and that it was even a greater mystery why the IACP would attempt to make such an invasive change after eleven years of peaceful status quo, Continental advised IACP that "with appropriate assurances from the Union, the Company will generally honor its requests in these matters." Id. Casey further pointed out to the IACP that not all of the pilots referenced in the IACP's resolution had actually ever had their seniority adjusted under the Amended Order. Id. As to one member of the list, Mr. Charles Dooley, Casey correctly advised the IACP that Mr. Dooley had a Greenbaum seniority number higher than the group dealt with by the Amended Order, and therefore had not been affected by any application of the Amended Order. Id. See also PSJ Ex. 13; PSJ Ex. 36. He also observed in his letter that many of the pilots covered by the IACP's resolution had either agreed to seniority adjustments in exchange for special treatment by Continental or had seniority numbers at Continental by virtue of their employment with People Express ("PEX") when the PEX seniority list was integrated with Continental's as part of the airlines' merger. Id. Continental's counsel closed by stating that, "notwithstanding these anomalies," if the IACP nevertheless desired to have the seniority of the Neale and Quigley Groups adjusted, "it should be clearly understood that such adjustments are made solely as a result of the IACP board's direction." Id. Continental required an agreement that the IACP hold Continental harmless "from any actions resulting from the adjustment . . .." Id.
Although the May 2, 1996 resolution directing the Neale/Quigley changes was passed by the IACP board weeks before the IACP membership was to vote on whether to affiliate with ALPA, the union did not send the IACP membership written information regarding its actions on behalf of the Neale and Quigley Groups until late June 1996, after the ALPA merger effort had already failed. See PSJ Ex. 24. By withholding information from the pilots about the seniority changes, the IACP leadership tried to prevent the proposed seniority changes from becoming an issue in the ALPA merger effort. The IACP board rescinded its May 1996 resolution and voted to form the "Disenfranchised Pilots Committee" (the "DPC") to study the facts behind the proposed seniority changes and to identify the union's potential liability if it made the seniority changes it had twice attempted to accomplish. See Def. PSJ Ex. 23.
The DPC was formed in September 1996. See PSJ Ex. 26. The members were hand-picked by IACP President Wilson and were approved by the other IACP officers. See PSJ Ex. 35. Of the three pilots selected to serve on the DPC, at least two had been loyal ALPA supporters and were card-carrying ALPA members. See PSJ Ex. 10 at pp. 9 and 11; PSJ Ex. 13 at pp. 11-12. Captain Anthony Westcott, who was appointed to serve as chairman of the committee, testified at his deposition that he owed his career to ALPA because the union helped him become re-certified to fly after he lost the use of one of his eyes in an accident. See PSJ Ex. 13 at p. 127, ln. 14 - p. 128, ln. 13. Although the IACP's witnesses testified that the pilots who served on the DPC were selected from a pool of pilots who volunteered for the committee, DPC member Dane Heule ("Heule") testified that the first time he learned of the Neale and Quigley seniority issues was when IACP President Wilson asked him to serve on the committee. See PSJ Ex. 10 at p. 14, ln. 5-17. Wilson and Heule were friends, and Heule had actively supported ALPA in 1993. See id., p. 9, ln. 22-23; p. 33, ln. 20 - p. 35, ln. 3. Heule and Westcott both supported the seniority changes proposed by the IACP leadership.
The DPC gathered information and prepared a draft report, reviewed and approved by IACP President Wilson, IACP Secretary/Treasurer Michael Hynes ("Hynes"), the IACP's legal counsel, and others. See PSJ Ex. 13 at p. 63, ln. 19 - p. 64, ln. 15; PSJ Ex. 14 at p. 92, ln. 17 - p. 93, ln. 18. Thereafter, the DPC members finalized the DPC report and presented it to the IACP board of directors at its October 1996 meeting. See PSJ Ex. 36. The DPC report confirmed what Continental's Casey had already indicated, that not all of the Neale and Quigley Group pilots had their relative seniority at Continental adjusted pursuant to the Amended Order. Id. As reported by the DPC, one of the pilots, Charles Dooley ("Dooley"), had not been subject to seniority reduction under the provisions of the Amended Order quoted above because his seniority number was outside of the 1898 to 2025 range on the Greenbaum List. See id.; PSJ Ex. 13 at p. 52; ln. 21 - p. 53; ln. 9; p. 76, ln. 11 - p. 79, ln. 20. Another pilot whose name was thrown in with the other Neale and Quigley Group pilots late in the process, Clark Heath, had negotiated a deal with Continental which allowed him to take a military leave of absence from 1983 to 1994 in exchange for his seniority being adjusted under the Amended Order. See PSJ Ex. 36; PSJ Ex. 13 at p. 99, ln. 17 - p. 101, ln. 20. A third pilot, Bill Stinger ("Stinger"), had selected Option 2 under the Amended Order, received severance pay, and subsequently requested to change to Option 3; in so doing, he agreed that his relative seniority would be lowered pursuant to the Amended Order. See PSJ Ex. 7 at p. 46, ln. 24-25; PSJ Ex. 13 at p. 95, ln. 4 - p. 96, ln. 10. Four other pilots, Joe Quigley ("Quigley"), Dan Beard ("Beard"), Don Bolliger ("Bolliger"), and Gaylon Crumley ("Crumley"), had gone to work at People Express instead of returning to Continental and occupied positions on the Continental Seniority List resulting from binding seniority arbitration. See PSJ Ex. 36; PSJ Ex. 13 at p. 90, ln. 3-20. Their relative positions on the Seniority List had not been adjusted pursuant to the Amended Order. Id.
Notwithstanding any of these facts, during its October 1996 meeting the IACP board of directors passed Resolution 9662, directing Continental to make the proposed seniority changes for the Neale Group and giving the IACP leadership the authority to enter into an agreement with Continental assuming liability for the seniority changes. See PSJ Ex. 26. The resolution called for the Neale Group pilots to be placed on the Seniority List "immediately senior to the most senior person who was junior to them on the Continental Airlines Pilot Seniority List in effect on September 25, 1983," the Greenbaum List. Id. The resolution also mandated that the proposed seniority changes for the Quigley Group pilots be the first matter taken up by the board of directors at its first meeting in 1997. Id. The board's resolution stated that although the "highly charged atmosphere" surrounding the seniority issue dictated that the pilots should have the "benefit" of a briefing by the Disenfranchised Pilot Committee, "[d]ue to the difficulty for an affected individual to render an unbiased decision, seniority is not a matter for referendum and as such, the issue should not be subject to a vote by the membership." Id. (emphasis in original.) The board obviously knew that the pilots would never vote in favor of the seniority adjustments sought by the Neale or Quigley Groups. The IACP leadership never formally polled the IACP membership before it passed its October 1996 resolution, and no vote of the full IACP membership was ever conducted regarding the seniority changes.
The IACP membership was not provided the information contained in the DPC report until well after the Neale Group's seniority changes were implemented. See PSJ Ex. 6 at p. 128, ln. 14 - p. 129, ln. 12. Several of the named Plaintiffs, Mr. Bertulli and Mr. Blackmore, and others tried to obtain information about the Neale and Quigley Groups and the proposed changes before the IACP board passed its October 1996 resolution, but the IACP leadership would not accommodate them. See PSJ Ex. 5 at p. 52, ln. 2-6. Prior to the October 1996 board of director's meeting (in which the board resolved to direct the Neale changes), one of the IACP board members, Kirby Van Horn ("Van Horn"), told Mr. Blackmore that the seniority changes were "a done deal and I [Blackmore] had nothing to say about it." PSJ Ex. 6 at p. 101, ln. 2 - p. 104, ln. 20. Van Horn had sponsored the January and May resolutions. See PSJ Ex. 23 and PSJ Ex. 25. Other IACP officers and directors attempted to intimidate individual pilots who opposed the seniority changes. See PSJ Ex. 5 at pp. 77-86. Mr. Blackmore recounted at his deposition that either Richard Smith ("Smith") or Jim Brucia ("Brucia") stated that "we needed to fix our seniority list prior to any merger with an ALPA carrier." PSJ Ex. 6 at p. 169, ln. 10 - p. 170, ln 7. Richard Smith, who had served as the Chairman of the ALPA Task Force Committee sponsored the IACP's October 1996 resolution, see Def. PSJ Ex. 30, and Brucia served as the chairman of the Merger Committee. See PSJ Ex. 13 at p. 36, ln. 12 - p. 37, ln. 23. Brucia was given access to the 1994 Katz Memo and other legal correspondence pertaining to the Neale and Quigley seniority proposals, which he provided to the DPC. Id. Although the IACP has since claimed otherwise, most of the IACP members who were present at the October 1996 board meeting were against the proposed seniority changes. See PSJ Ex. 6 at p. 79, ln. 10-12.
In reliance upon its selfserving board resolution, the IACP sent its November 21, 1996 letter to Continental (a) requesting that the seniority of the Neale Group pilots be "restored" to the position they would have held on September 25, 1983; (b) agreeing to hold Continental harmless from any legal action resulting from the adjustments and acknowledging that Continental had agreed to make the adjustments "solely as a result of the IACP board's direction"; and (c) to circumvent the pilots' rights under their collective bargaining agreement, proposing as follows: "The IACP and Continental agree to exempt the seniority adjustments described herein from any provisions of Section 11 of the current collective bargaining agreement that might otherwise apply to such adjustments." PSJ Ex. 38. Section 11 provides that once a pilot had achieved "a seniority date and relative position on the seniority list under this [collective bargaining] Agreement, a pilot shall not lose that date and relative position, except as provided in this Agreement" and guarantees pilots a right to grieve improper changes to the Seniority List. PSJ Ex. 41 at p. 11-1; PSJ Ex. 43 at p. 11-1. The letter concluded by advising Continental that it might very soon be making a similar demand on behalf of the Quigley Group "pending additional research." PSJ Ex. 38. The IACP did not perform any additional "research" after the October 1996 board meeting. See PSJ Ex. 13 at p. 108, ln. 10-23.
By his response to the IACP's letter on November 27, 1996, Continental's Casey reasserted that the Neale Group pilots did not lose seniority as a result of management action, but rather pursuant to the terms of a "comprehensive strike settlement agreement entered into by the Company and the Union which represented them at the time [ALPA]." Def. PSJ Ex. 33. Mr. Casey concluded that if he had not heard otherwise from the IACP within seven days of the IACP's receipt of his November 27 statement, Continental would assume that "we are agreed" that the seniority changes would be implemented in due course, which would result in each of the members of the Neale Group being moved up "approximately 1,600 numbers on the [seniority] list." Id. The Neale Group changes were implemented shortly thereafter.
At the end of 1996 the IACP conducted elections for many positions, including IACP President, and the Neale and Quigley seniority changes were an issue in those elections. See PSJ Ex. 6 at p. 91, ln 4 - p. 92, ln 11. At the first meeting of the board of directors in February of 1997, the IACP board took up the Quigley Group seniority changes, as required by the October 1996 resolution. Announcements for the February 1997 meeting were received by the IACP membership too late for pilots to attend the meeting. See PSJ Ex. 6. The board did not immediately resolve the Quigley Group issue, and the DPC members were subsequently sent to meetings at the various Continental bases to present the findings set forth in the DPC report. See PSJ Ex. 13. Neither the DPC members nor the IACP leadership polled the IACP membership regarding their opposition or support for the Quigley Group seniority changes. See PSJ Ex. 13 at pp. 109-11.
The IACP's new President, Len Nikolai ("Nikolai"), told at least one pilot that he believed the Neale Group seniority changes had been illegal, but that the IACP's lawyers had advised the new board of directors that they had to approve seniority changes for the Quigley Group pilots or else the union would face litigation from those pilots. See PSJ Ex. 6 at p. 135, ln. 9 - p. 136, ln 14. Nikolai warned Mr. Blackmore that Blackmore could face certain negative "consequences" for opposing the Neale and Quigley Group seniority changes if ALPA became their union again. Id. at p. 140, ln. 1 - p. 141, ln. 2.
In March 1997, without holding any open debate or discussion on the issue, the IACP board voted by mail and passed IACP Resolution 97-03, approving seniority changes for the Quigley Group pilots similar to those approved by the board for the Neale Group pilots in October 1996. See DSJ Ex. 37 and 38. On March 21, 1997, IACP President Nikolai sent Continental a letter requesting that the Quigley Group seniority changes be made. See DSJ Ex. 39. On April 18, 1997 Continental's Casey confirmed that the seniority changes requested by the IACP had been implemented. See DSJ Ex. 40.
IACP board of directors meetings are conducted in two forms: "general session" and "executive session." See PSJ Ex. 11 at p. 121, ln. 7 - p. 122, ln. 8. General session is open to all IACP members, whereas executive session is typically open only to IACP officers and directors "to discuss items that might be of a sensitive nature." Id. Minutes are kept for general sessions, but no records are kept of the discussions held during executive session. Id. at p. 122, ln. 9 - p. 125, ln. 24. Speaker's Corner is a time during general session when IACP members can address the IACP board about issues of concern to them; the board can permit a speaker on one side of an issue to speak longer than others. Id. at pp. 126-128. During the discussions of the Neale and Quigley Group seniority issues in the May and October 1996 board of directors meetings, the IACP leadership frequently went into executive session and discussed the issues outside of the presence of the IACP membership. See PSJ Ex. 6 at p. 75, ln. 17-24; p. 83, ln. 16-18.
2. The Evidence Demonstrates There Is a Strong Probability Plaintiffs Will Succeed on the Merits of Plaintiffs’ LMRDA Clams at Trial.
a. The LMRDA Prohibits the IACP from Depriving Its Membership of a Right of Referenda Provided by Its Constitution.
Congress enacted the LMRDA in response to a "number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct" on the part of labor organizations. 29 U.S.C. § 401 (1999) (congressional declaration of purpose). To counter this state of affairs, section 101(a)(1) of the LMRDA enforces any voting rights provided by a unions' constitution or bylaws against union officials who would usurp them. Section 101(a)(1) provides:
Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws.
29 U.S.C. § 411 (a)(1) (1999) (emphasis supplied).
Plaintiffs allege in their Complaint that the IACP denied the IACP membership the right to vote on the seniority changes at issue in this case. See Plaintiffs' Compl. at ¶ 39. The IACP admitted it never allowed the IACP membership to vote. However, in moving for summary judgment, the IACP contended that Plaintiffs did not state a claim under the LMRDA because the IACP denied the vote to all members equally. That contention was and is simply incorrect. Controlling Fifth Circuit precedent holds that any denial of voting rights granted by a union's constitution or bylaws violates the LMRDA, even if all members were equally disenfranchised. See Christopher v. Safeway Stores, Inc., 644 F.2d 467 (5th Cir. Unit A, 1981); accord O'Neill v. Air Line Pilots Ass'n, Int'l, 886 F.2d 1438, 1447 (5th Cir. 1989) ("Section 101(A)(1) . . . serves to protect the fair exercise of any rights that are provided by the union's constitution and bylaws."), reversed on other grounds, 499 U.S. 65 (1991).
The IACP mistakenly relied on Alexander v. International Union of Operating Engineers, 624 F.2d 1235, 1240 (5th Cir. 1980) for the proposition that "a cause of action under Section 101(a)(1) of the LMRDA is not stated unless plaintiffs have alleged that they were denied rights of referenda accorded to other members." (Defendant IACP's Memorandum of Law at p. 34, emphasis added). If, as Defendant previously argued, Alexander did stand for the proposition that § 101(a)(1) only prohibits discrimination between union members, then it was overruled sub silentio the very next year in Christopher. In Christopher, the Fifth Circuit held that a union's failure to present to the membership a mandatory matter of union business as constitutionally required was a violation of § 101(a)(1) even though all union members were equally disfranchised. Christopher, 644 F.2d at 470. In so holding, the court "declined the Union's invitation to read [§ 101(a)(1)] to mean that a right created or protected by the statute may be abridged with abandon provided there is an even-handed denial to all" and found "neither logic nor the rudiments of justice in such an interpretation." 644 F.2d at 470. Accordingly, when a union denies voting rights provided by its constitution or bylaws, it violates §101(a)(1) of the LMRDA even if it is an "even-handed denial to all." Therefore, the IACP's denial of a membership vote on the Neale and Quigley Group seniority changes violated the LMRDA.
b. The IACP's Constitution Conferred upon the IACP's Members a Right to Vote on the Neale/Quigley Seniority Changes.
The first inquiry in a §101(a)(1) claim is whether voting rights were conferred upon the rank-and-file by the union's constitution or bylaws. See O'Neill, 886 F.2d at 1447. In this case, the answer is yes. The IACP's constitution conferred upon the IACP membership a right to vote on all changes to the collective bargaining agreement ("CBA") directly affecting the pilots' rates of pay and employee benefits, which necessarily includes the Neale/Quigley seniority changes at issue here. The relevant provision of the IACP Constitution, Article VIII.B., provides:
Collective bargaining agreements, side agreements, or amendments thereto shall become effective in the following