Pilot gripes over scope put ALPA on defensive

 - May 6, 2008, 5:49 AM

A festering animosity between regional airline pilot groups and the Air Line Pilots Association showed no sign of subsiding last month, as nearly 300 Comair pilots asked to join a pending lawsuit against the union while pilots from US Airways subsidiary Allegheny Airlines picketed outside ALPA’s Washington headquarters. Both disputes stem from what the pilots call ALPA’s “predatory bargaining practices,” under which the interests of the union’s largest and most influential constituencies–namely the mainline pilots–supersede those of the regional pilot membership.

The lawsuit, filed last May by Comair Capt. Daniel Ford in the U.S. District Court for the Eastern District of New York, seeks $1 million in damages and an end to the union’s alleged practice of allowing Delta Air Lines pilot leaders “to unilaterally and arbitrarily impose restrictions on the size and routes of Delta’s subsidiaries.” Organized by the Regional Jet Defense Coalition (RJDC), the lawsuit claims that ALPA’s interest in negotiating and enforcing a scope clause on behalf of Delta pilots conflicts with its obligation to its Delta Connection members.

The judge in the case has directed ALPA to refile a motion for a summary judgment due to a dispute between the union and the RJDC over discovery obligations. Filed as part of a motion to dismiss the case, the motion for summary judgment proved too broad for a fair rebuttal under the usual discovery limits placed on plaintiffs in such a process. The judge decided that, in lieu of discovery, ALPA would have to limit the issues they cite in their motion. Meanwhile, the RJDC prepared to file a motion this month to include some 300 Comair pilots in the suit. The coalition also expects plaintiffs soon to file a suit on behalf of the pilots of wholly owned Delta subsidiary Atlantic Southeast Airlines.

While the legal wrangling in the Ford case entered its 15th month, the Allegheny pilots tried unsuccessfully to thwart the ratification of a new contract at US Airways that awards all future regional jet flying at its new wholly owned subsidiary, MidAtlantic Airways, to furloughed US Airways pilots. The deal also guarantees US Airways pilots half of all RJ positions at Allegheny, PSA and Piedmont Airlines. Under the new agreement, the mainline pilots would earn captain’s wages regardless of seat occupied, potentially resulting in a two-tier wage structure for first officers, while senior regional pilots risk displacement from their jobs by more junior mainline pilots.

Yet another brewing legal battle involving a US Airways Express affiliate–Charlotte, N.C.-based CCAir– has pitted regional pilots against ALPA’s national division in a dispute arising under somewhat different circumstances, but tainted with similar political overtones. On April 29, CCAir’s pilots voted to accept a hugely concessionary contract from Mesa Air Group in an effort to avoid a complete shutdown of the airline on July 1. Although Mesa pledged to place at least half of any more jets awarded under its US Airways Express contract–up to 35 total–with CCAir, ALPA president Duane Woerth refused to sign the deal. The ALPA president cited as one of his reasons Mesa’s use of “extreme duress” in its efforts to extract the concessions from the pilots. CCAir pilot Steven Kalik filed an injunction against Woerth and ALPA in an attempt to force a signature or to strip ALPA national of its authority to veto the vote. At press time, the U.S. District Court for the Western District of North Carolina had scheduled the next hearing in that case for August 28.

In a connected case, ALPA sued Mesa Air Group and its CEO, Jonathan Ornstein, in an attempt to derail the establishment of Freedom Airlines, a new company division originally scheduled to begin flying 70-seat jets with non-union employees this summer. ALPA contends that Mesa has used so-called “whipsaw tactics” to divert work from Mesa pilots to subsidiaries such as CCAir and Freedom Airlines. Citing a July 2 National Mediation Board ruling that all of the company’s subsidiaries constitute a single transportation system, ALPA national and the Mesa MEC believe all pilots flying for Mesa Air Group subsidiaries should bargain for the same union contract.

Although the details of the disputes vary, Ford believes ALPA’s actions in all the cases belie an agenda to protect the interests of its largest constituencies at the expense of less influential groups. “The CCAir pilots contend that representatives from the national association participated in the negotiations and gave commitments,” said Ford. “It was only after the fact [ALPA national] said this is too concessionary and that it will harm the pilots. According to court documents filed by the union, what they found particularly egregious was the existence of a 90-seat pay rate in the CCAir contract, and they felt that would obviously hurt the ability of other bargaining units to negotiate rates on that airplane.

“If you are fortunate enough to fly an aircraft with more than 70 seats your employment rights are to be protected; if not, they are to be restricted,” said Ford.

Pilots from Comair and Atlanta-based Atlantic Southeast Airlines formed the RJDC early last year specifically to organize and fund litigation against ALPA–the collective-bargaining representative for Delta, Comair and ASA pilots. At the time, Delta and its mainline pilots were nearing an agreement on a scope clause amendment that called for a flight-hour limit on Delta Connection partners to 34 percent of the company total for this year, 36 percent next year and 37 percent each year thereafter. Ratified last June, the new contract also limits the Delta Connection fleet to 57 seventy-seat jets unless mainline flying exceeds certain block-hour levels. Beyond the 57-unit limit, it allows for the addition of one 70-seat jet–up to a total of 75–for every 10,000 mainline block hours flown over Delta’s guaranteed annual minimum of 10,000 hr per three mainline jets.

Fortunately for its regional affiliates, Delta Air Lines convinced an arbitrator to grant force majeure relief following September 11, allowing it to accelerate the transfer of mainline routes to ASA, Comair and SkyWest and add new RJ capacity despite exceeding the 34-percent block-hour ratio limit. Although the recent US Airways bankruptcy and subsequent American Airlines restructuring announcement appears likely to hurt its argument, Delta’s ALPA MEC plans to ask the arbitrator to declare an end to force majeure, thereby compelling a furlough recall. Such a ruling would also reactivate the scope clause, theoretically requiring Delta to remove regional aircraft from its network or strip the DL code from affiliated flights.

The contract’s block-hour ratio, said Ford, could result in the most severe involuntary reduction in regional flying the industry has seen to date. “If mainline flying were to contract, management would be required to reduce [Delta Connection] flying by an equal amount, which we believe is nothing short of a mandatory furlough provision,” said Ford. “The only thing that’s preventing catastrophic effects upon us is the force majeure exemption.”

Although he said ALPA has not met its obligation to represent all pilot groups fairly and equally, Ford stressed that the RJDC does not oppose scope clauses per se, and that the union could overcome its conflict of interests without dropping its representation of regional pilot groups. The issue, he said, remains the union’s disregard for duty of fair representation, a legal standard that protects minority interests within labor unions.

“The landmark case involving the railroad union 50 years ago was largely a scope dispute,” said Ford, referring to a racial dispute in which the white majority tried to use labor-protection provisions and their bargaining authority to create preferred classes of employees. “Although that case was racist, and obviously we’re not claiming racism here, it shows how the majority of the union used their collective-bargaining position to disenfranchise a minority group of the same union.”