Airline Management Newsletter -- August 8, 2012

Executive Summary:  A federal trial court in Texas has held that the National Mediation Board (NMB) should have required a 50% showing of interest before holding an election to determine the representative of American Airlines' passenger-service employees.  American Airlines, Inc. v. Nat'l Mediation Bd., 2012 U.S. Dist. LEXIS 86775 (N.D. Tex. June 22, 2012).  The court also issued a permanent injunction prohibiting the direction of an election without a 50% showing of interest from these employees.

On February 14, 2012, Congress enacted the Federal Aviation Administration Modernization and Reform Act (FAA Act), which revised the RLA to change the showing of interest requirement for conducting an election from 35% to 50% of the employees in the applicable craft or class. 

In December 2011 the Communication Workers of American (CWA) filed an application with the NMB for certification as the representative of American's passenger-service employees and the NMB issued an order in April 2012 directing an election.  Subsequently, American filed a motion with the NMB asking the Board to reconsider its decision on the ground that the Board improperly applied the 35% showing-of-interest standard instead of the FAA Act's 50% standard.  Ultimately, the Board declined to reconsider its decision and entered an order allowing the election process to proceed. 

American then filed a motion with the federal court in Texas seeking a declaratory judgment that the NMB is prohibited by the RLA from directing an election among the passenger-service employees without a 50% showing of interest.  The court granted American's motion. 

The court held that the NMB should have applied the 50% standard when it considered the CWA's application.  According to the court, the fact that the CWA filed its application before the effective date of the FAA Act was irrelevant because the Act was effective when the NMB ruled on the application.  Thus, because the NMB's order directing an election was based on the 35% standard, the court set aside that order. 

The court further held that it had jurisdiction to hear this dispute because the NMB misapplied the plain text of the FAA Act and thereby acted in excess of its delegated authority by ordering the election.

Additionally, the court issued a permanent injunction prohibiting the NMB from directing an election or conducting any of the pre-election activities necessary to hold an election to determine who should represent the passenger-service employees without a 50% showing of interest from these employees.  The court noted that the permanent injunction is not as broad as the temporary restraining order the court issued on June 13 and "is not intended to affect any employee or organization's rights to organize and seek signed showings of interest from American's passenger-service employees or to prevent the Board from taking any steps consistent with its statutory and regulatory authority to allow additional time for an organization to gather sufficient showings of interest to achieve the fifty-percent requirement."

Executive Summary:  The National Mediation Board (NMB) has published a revision to its previously issued Notice of Proposed Rulemaking (NPRM) clarifying that it will authorize a run-off election only in elections where three or more options receive a valid vote.

On May 15, the NMB issued a NPRM to revise the Board's election rules to comply with the amendments to the RLA in the Federal Aviation Administration Modernization and Reform Act of 2012 (the FAA Act), which went into effect on February 14, 2012.  The proposed rule addressed the NMB's rulemaking authority, the procedure for run-off elections, and the showing of interest required for an unrepresented craft or class.  In the May 15 NPRM, the NMB appeared to be proposing a change in its procedures in the event that there is a tie between those voting for and those voting against representation.  Under current practice, in such a situation the union's application would be dismissed. 

The initial proposed rule stated, "[i]f in an election among any craft or class no option receives a majority of the legal votes cast, or in the event of a tie vote, the Board shall authorize a run-off election."  This led us to question whether the NMB intended to hold a run-off election between the two highest vote-getters if the tie was between a union and "no representation."  For example, if out of 100 votes cast, 50 voted for the union on the ballot, 0 wrote-in another representative, and 50 voted for no representation, the union's application would be dismissed under the NMB's past practice, but would seemingly lead to a run-off election between the union and "no representation" under the proposed rule.

On June 7, the NMB published a revision to its NPRM correcting the language of the May 15 proposed rule with regard to this issue.  The NMB's publication states that "Rule 1206.1 only applies in elections where 3 or more options receive valid votes."  The revised language states:  "In an election among any craft or class where three or more options (including the option for no representation) receive valid votes, if no option receives a majority of the legal votes cast, or in the event of a tie vote, the Board shall authorize a run-off election."  Based on this clarification, if out of 100 votes cast, 50 voted for the union on the ballot, 0 wrote-in another representative, and 50 voted for no representation, the union's application would be dismissed.  But if, out of 100 votes cast, 45 voted for the union on the ballot, 10 wrote-in another representative, and 45 voted for no representation, the NMB would authorize a run-off election between the two highest vote-getters – the union and the carrier ("no representation").

If you have any questions regarding this article, please contact the author, Blake Martin, bmartin@fordharrison.com, or the FordHarrison attorney with whom you usually work.

Executive Summary:  The Eighth Circuit recently upheld the arbitrability of a pilot's Family and Medical Leave Act (FMLA) and state law disability discrimination claims against his former employer, Air Transport International (ATI).  See Thompson v. Air Transport Int'l, LLC, 664 F.3d 723 (8th Cir. 2011).  The court's decision affirms that of a federal trial court, which rejected the pilot's argument that the arbitration provision contained in the collective bargaining agreement (CBA) between his union and ATI was invalid because it was joined with an illegal and non-severable waiver of his FMLA claims.

The pilot's employment with ATI was governed by the CBA between IBT (the union that represented the pilots) and ATI.  The pilot claimed ATI discharged him in retaliation for taking FMLA-protected leave and also claimed a violation of the state disability discrimination law.  The trial court dismissed his complaint, finding it was subject to the mandatory arbitration agreement contained in the CBA between IBT and ATI.  The pilot admitted the arbitration clause subjected his complaint to mandatory arbitration; however, he claimed that the arbitration clause was part of an unconscionable and non-severable waiver of his FMLA claims.   

The Eighth Circuit rejected this argument, holding that the CBA did not purport to waive the pilot's FMLA remedies.  The arbitration agreement stated, in part:

"[C]laims of discrimination arising within the employment relationship between the Company and the Crewmembers, whether such claims are made under the collective bargaining agreement or in state or federal court and alleged to be violations of state or federal law. . . . are to be addressed, resolved and finalized solely under Section V – Grievance and/or [Section] VI – Arbitration of the Agreement as by the terms of the Collective Bargaining [Agreement] each Crewmember waives each and every cause of action and remedies provided under these statutes and common law frameworks."

The pilot argued that the last portion of the agreement, stating "each Crewmember waives each and every cause of action and remedies provided under these statutes and common law frameworks" was an unlawful waiver of his FMLA claims.  The court held, however, that when read in conjunction with the CBA, which expressly retained the FMLA rights of crewmembers, it was clear that the agreement was a "waiver of a judicial forum," not a waiver of the pilot's FMLA claims.  The court noted that a waiver of a judicial forum is not a waiver of claims, but is instead a waiver of the right to seek relief from a court. 

Relying on the U.S. Supreme Court's decision in 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009), the court held that "[p]arties can waive the judicial forum as an avenue for bringing federal statutory claims and state anti-discrimination claims as part of a mandatory arbitration agreement."   The court further noted that an arbitration agreement subjecting certain statutory claims to arbitration "must be honored" unless the statute reflects an intent to take the claims out of the realm of claims that may be subjected to mandatory arbitration.  The court held that the pilot's FMLA and state disability discrimination law claims "can be subject to a mandatory arbitration provision."  Accordingly, the Eighth Circuit affirmed the lower court's order dismissing the pilot's claims.

ATI was represented by Sarah Pierce Wimberly, swimberly@fordharrison.com, a partner in FordHarrison's Atlanta office and member of our Airline Industry practice group.

Executive Summary:  A federal trial court in Minnesota recently granted summary judgment in favor of Northwest Airlines on an employee's discrimination claim under the Americans with Disabilities Act (ADA), holding that the airline did not regard the employee as disabled.  See Sanchez v. Northwest Airlines (May 1, 2012).  The court held that the fact that Northwest required the employee to undergo an accommodation assessment when he switched bases did not establish that the airline regarded him as disabled.

Background

Sanchez was employed by Northwest as an equipment service employee (ESE).  During his employment, Sanchez injured his knee and ultimately had a knee replacement.  Subsequently, Sanchez submitted a statement from his physician identifying his physical restrictions, which included being unable to squat, crawl, climb ladders, run, lift more than 75 pounds or perform "fine hand" work.  Sanchez was able to continue to work in the ESE position because Northwest accommodated him by excusing him from certain duties such as loading and unloading baggage inside the bins of narrow-body aircraft. 

In 2007, Sanchez was awarded the Lead ESE position in the Honolulu Airport; however, Northwest later removed him from this position because he could not perform one of the essential functions of the position – loading and unloading baggage from narrow-body aircraft.  Sanchez then obtained a revised letter from his doctor stating that his only work restrictions were running and lifting over 75 pounds.  This revised letter was significantly different from the letter he previously submitted.  Although Northwest did not reinstate Sanchez to the Lead ESE position, it informed him that he could bid on the next open position and that it would consider the new restrictions at that time.  Sanchez filed a grievance over the airline's refusal to reinstate him to the Lead ESE position and subsequently filed suit in federal court, claiming the denial violated the ADA.  While his lawsuit was pending, Sanchez bid on and received the Lead ESE position in Honolulu.

ADA Claim

The ADA prohibits employers from taking an adverse employment action against an employee because of disability^[1].  To establish a claim under the ADA, a plaintiff is required to show that (1) he has a disability within the meaning of the ADA; (2) he is qualified to perform the essential functions of the position sought, with or without reasonable accommodation, and (3) he was denied this position because of his or her disability.  If the plaintiff makes this showing, the employer is required to articulate a legitimate, nondiscriminatory reason for its action.  If the employer does so, the plaintiff must show that the employer's proffered reason for the employment action was pretextual.

Sanchez was not Disabled

The court held that Northwest was entitled to summary judgment because Sanchez could not show he was disabled within the meaning of the ADA.  The court rejected Sanchez' argument that Northwest regarded him as disabled, which is one of the ways a plaintiff can establish he or she is entitled to protection under the ADA^[2]. 

An individual is regarded as disabled if the employer mistakenly believes that he has an impairment that substantially limits one or more major life activities, or mistakenly believes that an actual, non-limiting impairment substantially limits the employee's ability to perform one or more major life activities.  Sanchez claimed Northwest mistakenly believed that his knee injury substantially limited him in the major life activities of performing manual tasks and working.

Sanchez argued that a reasonable jury could find that Northwest believed his earlier restrictions were permanent.  However, Sanchez presented no evidence that those perceived restrictions would have severely restricted his ability to perform tasks of central importance to daily life.  The court noted that Sanchez testified that he was not impaired in his daily life.  Further the court held that there was no evidence that Northwest regarded Sanchez's restrictions as limiting his ability to care for himself or others, do household chores, or perform other types of manual tasks that are centrally important to daily life. 

Additionally, Sanchez presented no evidence that a person with the restrictions he claimed he was regarded as having would be unable to perform a broad class of jobs.  The court noted that Sanchez did not identify a single job, other than the Lead ESE position, that these restrictions precluded him from holding or that Northwest believed he was precluded from holding.

The court also held that the fact that Northwest required Sanchez to undergo an accommodation assessment when he switched bases between Honolulu and Minneapolis and granted him various accommodations did not establish that Northwest regarded him as unable to perform a broad class of jobs.  "There is simply no evidence that Northwest regarded Sanchez as being unable to perform a broad class of jobs – or, for that matter, any job other than Lead ESE."

Accordingly, because no reasonable jury could find that Sanchez was disabled within the meaning of the ADA, the court granted Northwest's motion for summary judgment.

Pinnacle System - AFA-CWA won an election to represent Flight Attendants.  Out of 1470 eligible employees, 1168 valid votes were cast.  There were 643 votes for AFA-CWA, 520 votes for USW, 4 no votes, and 1 vote for TWU.  Certification July 17, 2012.

United Air Lines - IAM won an election to represent Maintenance Instructors.  Out of 45 eligible employees, 42 valid votes were cast.  There were 40 votes for IAM and 2 no votes.  Certification June 15, 2012.

Horizon Air - IBT won an election to represent Mechanics and Related Employees.   Out of 319 eligible employees, 258 valid votes were cast.  There were 151 votes for IBT, 103 votes for AMFA, 3 no votes and 1 vote for other.  Certification March 16, 2012.

United Airlines - IAM won an election to represent Passenger Service Employees.  Out of 16,720 eligible employees, 14,170 valid votes were cast.  There were 8,240 votes for IAM, 5,865 no votes, 65 votes for other and 13 void votes.   Certification March 8, 2012.

Aer Lingus - AFA-CWA lost an election to represent Flight Attendants.  Out of 54 eligible employees, 42 valid votes were cast.  There were 24 no votes and 18 votes for AFA-CWA.  Dismissal March 7, 2012.

Calstar - OPEIU lost an election to represent Pilots.  Out of 47 eligible employees, 46 valid votes were cast.  There were 30 no votes and 16 votes for OPEIU.  Dismissal December 29, 2011.