Court battle widens divide between United, pilots

They call themselves the 2,172.

That's the number of pilots laid off by United Airlines in the turbulence that followed the Sept. 11, 2001, attacks, who then waited five years or so to resume their old jobs, even taking pay cuts to do so.

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United Airlines and its powerful pilots union square off in federal court over who was behind the widespread sickout that disrupted the carrier

By Julie Johnsson

Chicago Tribune reporter

August 27, 2008

They are the junior-most of United's 6,500 pilots, and they were furious this June to learn that nearly 950 from their ranks again would be headed for the unemployment line at summer's end, when the Chicago-based carrier would begin grounding 100 planes.

So the pilots called in sick in numbers that escalated during July, forcing United to cancel hundreds of flights while summer travel was at its peak.

Why and how they came to do so is central to the legal drama that is scheduled to play out in a federal courtroom in Chicago beginning Wednesday, as United asks a judge to block its pilots union from fostering what it describes as illegal labor activity. The union counters, in court documents, that it had no hand in the sickout by junior pilots and, indeed, tried to squelch it.

The litigation is a very public salvo in the labor battles that are likely to escalate over the next year as the nation's second-largest airline heads into contract negotiations with every one of its unions.

"There's certainly a lot of strategy and tactics in this legal and collective-bargaining game they're playing," said Joshua Javits, former chairman of the National Mediation Board. "It's very risky for both sides."

The litigation marks the first time in recent memory that United has sought a retraining order against its most powerful union, an act that signifies United Chief Executive Glenn Tilton's resolve to take a tough stance with labor. Reacting to the July 30 lawsuit, the pilots retaliated with a campaign to oust Tilton from United, citing the carrier's poor financial and operational performance on his watch.

In court, United will press its case for a preliminary injunction against the Air Line Pilots Association and four pilots "to stop an ALPA-sponsored work slowdown against United designed to force the company to renegotiate a collective bargaining agreement" that is in force until the end of 2009, according to a court filing. United claims the sickout is the latest event in a 2-year-old dispute over voluntary staffing, the practice of calling on reserve pilots to fill gaps in its schedule.

Neither side would comment for this story, citing the pending trial.

American's pilots fined

If it succeeds, United will handcuff the union and its leaders by bringing them under close watch of the court heading into contract talks that are likely to be contentious, analysts said. A federal court fined American Airlines' pilots more than $45 million for violating a similar temporary restraining order that the airline had won against the union in 1999.

The case will likely hinge on a critical issue: "Whether United can prove that the union either orchestrated or ratified a concerted refusal to work," said Martin Malin, a professor and director of the Institute for Law and the Workplace at Chicago-Kent College of Law.

Concerted job actions that damage an airline financially are illegal under the Railway Labor Act, which governs the industry, unless the two parties have gone through a lengthy bargaining and mediation process that can involve an appeal to the president of the United States, legal experts said.

Pilots contend United's accusations are "reckless," because the airline is asking a court to stop a sickout that has ended and was never linked conclusively to the union.

"Despite the blaring of its trumpets as it entered this court last month, United has simply pieced together a series of surmises and suspicions, and has utterly failed to make a case in support of injunctive relief," the union said in a court filing.

The litigation provides an unusual glimpse into one of the most powerful airline unions in the U.S., a group that struck United in 1985 and has a reputation for aggressiveness. United's suit also shines a spotlight on a little-known arm of the union, its Industrial Relations Committee, that was formed in the aftermath of the 1985 strike and acts as ALPA's "eyes and ears," the union said.

According to depositions, members of the secretive group, which was instrumental in the work slowdown in the summer of 2000, communicate by telephone, never via text or e-mail. When union leaders want to get the word out on a sensitive issue, the group's leaders activate their phone tree, individually calling pilots in their area.

The junior pilots, who were rehired by United during 2006 and 2007, organized themselves into a voting bloc last year in order to gain a better say during ALPA's elections last fall, according to court documents. Anthony Freeman, a junior pilot based in Denver, created a password-protected Web site, www.ual2172.com, where the younger pilots traded thoughts on union and work issues and sometimes vented frustrations.

After United announced that it would be making deep cuts this fall in response to crushing fuel costs, talk on the Web site's message board and among junior pilots turned to retaliation, court documents indicate. If large numbers of pilots called in sick during the July 4 holiday period, when planes are typically jammed, United would be embarrassed.

Piecing together flight documents, United claims that the three leaders of the Industrial Relations Committee met with Freeman in Los Angeles on June 11 and 12 to organize the July sickout.

Union denies role

All four men, as well as the union, said in depositions this month that just the opposite occurred: That they tried to quell an unauthorized pilot uprising over the July 4 weekend, which in fact never materialized.

The meeting was called by committee Chairman Steven Tamkin, who reports directly to pilot union chief Steve Wallach. The men were among the hundreds of United employees who gathered in Los Angeles to protest at the airline's annual shareholder meeting, June 12.

Over cocktails on the patio of his Los Angeles-area home, Tamkin lowered the boom on Freeman and the sickout.

"In so many words he told me it was a terrible idea, which I already knew, but he hammered that point home," Freeman said in a deposition. "He knew that I had contact with a large part of the pilot group, and so he wanted me to use my streams of communication to not allow that to happen."

Using the channels of the Industrial Relations Committee, of which Freeman was a member, the union said it tried to spread the word that a sickout was a bad idea that could invite legal action by management. Still, the level of sick calls continued to rise steadily during July, a phenomenon ALPA attributed to "spontaneous combustion."

"In short, there was no sudden, dramatic, unexpected usage of sick leave on any single day or during any single weekend as one might expect would result from a concerted job action; rather, United experienced an expected and fluctuating increase in the usage of sick leave over the course of two months among the pilots who were about to lose their employment again .," ALPA noted.

United questioned how, if its earlier efforts were fruitless, the committee could swiftly and successfully end the sickout after the airline filed its lawsuit? If ALPA had truly wanted to prevent the sickout, why didn't it publish a single directive that "clearly and explicitly" discouraged such conduct?

If recent case law in other federal circuits comes into play, ALPA may be forced to prove that it took sufficient measures to try to stop the sickout, Javits said.

For aviation consultant Darryl Jenkins, the barbs traded by both sides are creating a depressing sense of deja vu. "I remember the summer of 2000 very well," he said. "I hate the fact that these guys always fight."
AB

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