A dismissed suit by United Airlines pilot instructors, which alleged their union unfairly divided retroactive pay among different pilot categories, is flying again, courtesy of a Chicago federal appeals panel that ruled a lower court should not have grounded the suit, because the instructors plausibly argued the union gave them the short end of the stick.
The Aug. 13 ruling was authored by Senior Judge Kenneth Ripple, with backing from Judge Diane Sykes and qualified backing from Judge David Hamilton, of the U.S. Court of Appeals for the Seventh Circuit.
The ruling favored pilot instructors David Bishop and Eric Lish in their action against the Air Line Pilots Association International, although Judge Hamilton noted the suit may yet nosedive, because of feeble evidence.
Jacie Zolna
| Myron M. Cherry & Associates
Bishop and Lish were part of a class action lodged in August 2013 in U.S. District Court for the Northern District of Illinois. ALPA is based in Washington, D.C.
Bishop and Lish said the association used a formula to apportion $225 million in retroactive pay from a collective bargaining agreement, that did not distinguish between line pilots and two smaller groups of pilots, including instructor pilots and management pilots. Use of the same formula for all pilots discriminated in favor of line pilots, Bishop and Lish alleged.
Line pilots exclusively fly customers from one place to another, plaintiffs explained.
Bishop and Lish further alleged that because line pilots make up the bulk of the association, the association preferred those pilots, leaving the others with a “fraction of their deserved retro pay.”
ALPA argued the suit should be tossed, with U.S. District Judge Gary Feinerman agreeing, finding it was not “irrational or arbitrary” to use the same disbursal formula for the three categories of pilots. Feinerman added it was “irrelevant” whether the association was favoring line pilots, because the formula was “rational.”
Bishop and Lish appealed on behalf of instructor pilots, not management pilots, with Judge Ripple shooting down Feinerman’s reasoning.
“By plausibly pleading that ALPA acted with the improper motive of appeasing the majority-membership line pilots at the expense of the minority pilot instructors, the plaintiffs have met their burden of pleading not only that they ‘were treated differently than other employees’ but ‘why they were treated differently - the crucial question for a duty of fair representation discrimination claim,’” Ripple said, partly quoting a 2001 ruling from the U.S. 10th Circuit Court of Appeals.
Ripple went on to say Feinerman, by dismissing the case, “deprived the plaintiffs of the opportunity to conduct discovery and develop a factual record to support their claims.”
Judge Hamilton agreed with Ripple that dismissal of the suit was premature, but believes the action will nonetheless ultimately fail, because it will be seen “just how small a target plaintiffs must hit.”
Hamilton drew attention to what he saw as plaintiffs’ weak evidence.
“They will have a difficult time proving what they need to prove on the merits. The evidence of bad faith proffered so far - different accounts of the role of the instructor pilots’ representative in the allocation negotiations - looks a lot less like bad faith and more like differences in ‘spin’ about a difficult decision bound to disappoint everyone in varying degrees,” Hamilton observed.
Hamilton pointed out the key issue in the case is majority rule.
“Majority rule is at the core of American labor law. We should not be surprised if union leaders opt for the greatest good for the greatest number, and we should not step in to protect union minorities from majority rule except in narrow classes of cases,” Hamilton said.
Attorneys Myron M. Cherry and Jacie C. Zolna of Myron M. Cherry & Associates, of Chicago, represent Bishop and Lish.
Air Line Pilots Association International is represented by the following: in-house counsel Marcus Migliore; Michael Abram and Joshua Ellison, of Cohen, Weiss & Simon, of New York City; Michael Winston, of Gladstein, Reif & MeGinniss, of New York City; and Rami Fakhouri, of Goldman, Ismael, Tomaselli, Brennan & Baum, of Chicago.