ALPA Sued Again - By TWA Pilots -

[surplus1]

www.TWAPilots.com <http://www.twapilots.com> ™2002 09/03/2002
Editorial: TWA Pilots, Inc. is, as a courtesy and service to the former TWA pilots, reprinting a Federal lawsuit filed today in Federal Court in New Jersey on behalf of the former TWA pilots. The suit speaks for itself. We remind the reader that the plaintiffs cannot and will not be able to comment upon the content herein. TWA Pilots, Inc. recommends a thorough reading and patient reflection of the following complaint.
___________________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Jerald R. Cureton (JRC4144) H. Thomas Hunt (HTH9745)
Anthony Valenti (AV4918)
CURETON CAPLAN, P.C.
950B Chester Ave. Delran, New Jersey 08075 (856) 824-1001

Attorneys for

LeRoy Bensel, James Arthur, Patrick Brady, Theodore A. Case, Matthew J. Comlish, Darshanprit S. Dhillon, Lemuel A. Dougherty, Michael V. Finucan, John S. Hefley, Howard B. Hollander, Robert A. Pastore, and Sally Young LEROY “BUD” BENSEL, James Arthur Patrick Brady Theodore A. Case Matthew J. Comlish Darshanprit S. Dhillon Lemuel A. Dougherty Michael V. Finucan John S. Hefley Howard B. Hollander Robert A. Pastore Sally Young

Individually and as representative of a class consisting of former Trans World Airlines pilots employed by TWA Airlines LLC as of April 2001,

vs.

AIR LINE PILOTS ASSOCIATION
1625 Massachusetts Avenue NW
Washington, D.C. 20036 Defendant,

CIVIL ACTION NO.

COMPLAINT
JURY TRIAL DEMANDED

Plaintiffs,
LeRoy Bensel, James Arthur, Patrick Brady, Theodore A. Case, Matthew J. Comlish, Darshanprit S. Dhillon, Lemuel A. Dougherty, Michael V. Finucan, John S. Hefley, Howard B. Hollander, Robert A. Pastore, and Sally Young,
by way of Complaint say:

INTRODUCTION

1. In this class action suit, Plaintiffs are pilots formerly employed by Trans World Airlines (“TWA”) and represented by their union, Defendant Air Line Pilots Association International (“ALPA”), until TWA’s assets and employees were acquired by American Airlines (“American”). ALPA breached its duty of fair representation to the Plaintiff class when it arbitrarily, discriminatorily and in bad faith caused them to lose their seniority integration rights and concealed from the plaintiffs material facts and its unlawful activities. As a result, Plaintiff class ultimately became employees of American with virtually no seniority; many have been laid off and have suffered reduced rank and responsibility, and will continue to be so damaged for the remainder of their careers.
JURISDICTION AND VENUE

2. This action arises under the provisions of the Railway Labor Act (“RLA”), 45 U.S.C.A. §§ 151-188, a federal statute regulating interstate commerce, and accordingly, this Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1337. Venue is proper in this district under 28 U.S.C. § 1391(b), because the Plaintiff, LeRoy Bensel, resides in this District.
PARTIES

3. Plaintiff, LeRoy Bensel, is a natural person residing at New Jersey.
4. Plaintiff, James Arthur, is a natural person residing at Indiana.
5. Plaintiff, Patrick Brady, is a natural person residing at California.
6. Plaintiff, Theodore A. Case, is a natural person residing at Georgia.
7. Plaintiff, Matthew J. Comlish, is a natural person residing at Maryland.
8. Plaintiff, Darshanprit S. Dhillon, is a natural person residing at Illinois.
9. Plaintiff, Lemuel A. Dougherty, is a natural person residing at Missouri.
10. Plaintiff, Michael V. Finucan, is a natural person residing at Maine.
11. Plaintiff, John S. Hefley, is a natural person residing at Vermont.
12. Plaintiff, Howard B. Hollander, is a natural person residing New York.
13. Plaintiff, Sally Young, is a natural person residing at Missouri.
14. Plaintiff, Robert A. Pastore , is a natural person residing at California.
15. At all relevant times, the above named plaintiffs were pilots employed by TWA and its successor, TWA-LLC.

16. As a result and condition of the acquisition of TWA’s assets by American Airlines, the plaintiffs and the class members became employed by TWA LLC (a wholly owned subsidiary of American Airlines). At all relevant times before April 3, 2001, the Class Representatives and the class members were represented for collective bargaining purposes by Defendant ALPA. Since April 3, 2002, the Class Representatives and the class members have been represented by Allied Pilots Association (APA), who administers a collective bargaining contract that governs the employment of all American Airlines pilots.

17. Defendant, Air Line Pilots Association (“ALPA”), is an unincorporated association and labor organization maintaining its headquarters at 1625 Massachusetts Avenue NW, Washington, D.C., 20036. At all relevant times until April 3, 2001, ALPA was the collective bargaining agent for the Class Representatives and class members. CLASS ALLEGATIONS 1

18. Plaintiffs sue individually and as representatives of a class as defined by Fed. R. Civ. P. 23(b)(1) or (b)(2). The class is defined as all persons formerly employed by TWA as pilots, who became employees of TWA-LLC as of April 10, 2001 and were still employed on April 3, 2002 (the “Class”).

19. The Class is so numerous that joinder of all members is impracticable. In excess of 2300 former TWA pilots were represented by ALPA, were employed by TWA and became employees of TWA-LLC as of the establishment of TWA-LLC in April 2001, and those pilots are dispersed geographically throughout the United States.

20. The actions of ALPA affected each and every member of the Class, and there are questions of law and fact that affect and are common to all members of the class. For example, ALPA’s breach of its duty of fair representation and the legitimacy of the negotiations which led to the loss of all Class members’ seniority rights are common to all members of the Class.

21. The individually named Plaintiffs possess the same interests and have and will continue to suffer the same injuries shared by all members of the Class. The claims of the individually named Plaintiffs are typical of, and do not conflict with, the claims of other Class members.

22. The Class Representatives have the same interest in pursuing this action as the members of the Class and will fairly and adequately protect the interests of the Class.

23. The claims arise from ALPA’s breach of its duty of fair representation in causing the class to lose its seniority integration rights, and thereafter concealing its activities so as to hide its breach from the plaintiffs and the Class.

24. Plaintiffs have retained qualified counsel, experienced in class action practice, to represent them in this matter

25. The prosecution of the Class’s claims in separate actions in various jurisdictions — or the prosecution by individual Class members of claims in separate actions in various jurisdictions — would create a risk of inconsistent or varying adjudications with respect to individual members of the Class which would establish incompatible standards of conduct for ALPA.

26. ALPA has acted or refused to act on grounds generally applicable to all members of the Class, thereby making relief with respect to the Class as a whole appropriate.

GENERAL ALLEGATIONS

27. For approximately 75 years, TWA provided air transportation services for airline passengers around the world. TWA employed approximately 2300 pilots at the time that it ceased to exist and its assets were acquired by American Airlines in or about April of 2001.

28. For over 70 years of TWA’s history, the TWA pilots were represented by ALPA. The TWA pilots were founding members of ALPA, helping set the standards for safety and working conditions for the entire airline pilot profession. This union relationship ended in April of 2002 when the Allied Pilots Association, as required by American’s collective bargaining agreement and the asset purchase, became the union bargaining agent of the TWA pilots. While the union collective bargaining agent for the TWA pilots, ALPA owed a duty of fair representation to the TWA pilots pursuant to the provisions of the RLA and a fiduciary obligation to represent the TWA pilots in good faith.

29. ALPA is the world’s largest airline pilot union, representing over 55,000 pilots employed by numerous airlines.

 

[surplus1]

ALPA v TWA Pilots - Part 2

30. ALPA operates separate divisions for each airline that it represents. Thus, the TWA pilots had their own “local” division of ALPA, and its executive body was known as the TWA Master Executive Council, or TWA-MEC. At the time of the TWA asset purchase by American, the TWA-MEC was composed of three non-voting officers and six voting representatives. The six voting representatives were elected by the TWA pilots and consisted of two from each of TWA’s three domicile locations. (A) TWA’S BANKRUPTCY AND THE AMERICAN’S ACQUISITION OF TWA

31. On or about January 9, 2001, TWA and American executed an agreement pursuant to which American agreed to purchase substantially all of TWA’s assets (the “Purchase Agreement”).

32. The Purchase Agreement provided, among other things, that, with certain limited specified exceptions, American would offer employment to all of TWA’s unionized employees, including Plaintiffs.

33. American did not immediately incorporate all of the acquired TWA assets and associated airline operations into the American transportation system, and former TWA pilots did not immediately become employees of American. Rather, during a transitional period following the April 10, 2001 acquisition, certain operations formerly conducted by TWA were carried on by TWA-LLC, American’s wholly owned subsidiary. During that transitional period until April 3, 2002, TWA-LLC recognized and dealt with ALPA as the exclusive collective bargaining representative of former TWA pilots who took employment with TWA-LLC. That recognition of ALPA remained in effect until April 3, 2003, when the National Mediation Board issued a determination establishing that, for RLA purposes, APA was the certified bargaining representative for pilots in the combined American and TWA- LLC transportation system.

34. The scope language of the CBAs required TWA to implement the provisions of Sections 3 and 13 of the Allegheny-Mohawk Labor Protective Provisions. These provisions required the fair and equitable seniority integration of employees in the event of a merger or acquisition of TWA.

35. American’s pilots were at all times represented for collective bargaining purposes by Allied Pilots Association (APA). American employed over 11,000 pilots, compared to the approximately 2300 pilots at TWA.

36. APA and the American pilots represented by APA had, at all relevant times, opposed any integration of seniority with the TWA pilots. APA made this position clear at the time of the TWA bankruptcy to American and all other parties.

37. On January 10, 2001, as contemplated by the Purchase Agreement, TWA filed a Chapter 11 bankruptcy petition in Wilmington, Delaware, and sought Court approval of the Purchase Agreement.

38.Bankruptcy Court and thereafter, TWA-MEC directly represented the TWA pilots, although ALPA controlled the finances, attorneys and consultants to TWA-MEC.

39. Also during the pendency of the bankruptcy proceedings, TWA pilots, through their local representatives on the TWA-MEC, expressed to American their deep concern regarding the integration of ALPA-represented employees into the workforce of American, especially in light of APA’s opposition to any seniority integration.

40. On March 12, 2001, the Bankruptcy Court approved the purchase of TWA by American. (B) TWA Seeks to Abrogate the Pilots’ CBAs

41. Throughout the bankruptcy proceedings, American urged the TWA pilots to give up their “scope”, or seniority integration procedures and protections (the “Allegheny-Mohawk Labor Protective Provisions”) as contained in the TWA pilots’ CBA. TWA-MEC refused to do so. In response, TWA, and upon information and belief, at the direction of American, filed a Section 1113 Motion in the Bankruptcy Court seeking permission to abrogate all provisions of the CBAs, including the Allegheny-Mohawk Labor Protective Provisions.

42. The TWA pilots were at all times virulently opposed to giving up their Allegheny-Mohawk Labor Protective Provisions as set forth in their collective bargaining agreement. The TWA-MEC, representing the TWA pilots, sought and desired to allow the Bankruptcy Court to determine a fair and equitable resolution to their seniority rights pursuant to Section 1113 of the Bankruptcy Code.

43. In response, ALPA sent a team of representatives to coerce and force the TWA-MEC to concede their Allegheny Mohawk rights and to concede their Section 1113 rights. These attorneys and consultants reported directly to ALPA, and not the TWA-MEC and utilized threats, misrepresentations and omissions of material fact and other pressures to achieve this objective.

44. Faced with withering pressure from ALPA and in reliance upon material misrepresentations and omissions of material information from ALPA and its representatives in March, 2001, the TWA-MEC was forced into conceding their contractual seniority integration rights and to accept in their stead a vague promise from American to use its “reasonable best efforts” to assist the two unions to arrive at a fair and equitable resolution of the seniority issue.

45. About the same time, ALPA and American negotiated to preserve the seniority integration process for hundreds of US Air pilots who were in the process of being acquired by American as result of a proposed merger between US Air and United Air Lines.

46. At the time the pilots succumbed to this pressure, they did not know that ALPA, as set forth in paragraphs 57 through 72, and APA, were engaged in an organizing campaign to bring the American pilots into ALPA.

47. Upon the TWA pilots’ relinquishing of their seniority integration rights, TWA-LLC entered into a Transition Agreement with the TWA pilots, the terms of which would govern the transition of TWA unionized employees to TWA-LLC (the “Transition Agreement”).

48. The TWA pilots, through TWA-MEC, and the American pilots through APA, entered into discussions regarding the seniority issue with a facilitator paid for by American. Paying for the facilitator is the only action taken by American in connection with its promise to use its “reasonable best efforts” to bring about a fair and equitable conclusion to the dispute. Upon information and belief, and unknown to the TWA pilots at the time, however, these facilitated discussions occurred after American and APA had already negotiated and agreed upon a final seniority integration agreement which, was known by ALPA. Thus, the facilitated discussions were a sham designed to appease the TWA pilots and to conceal the agreements reached and agenda of APA, ALPA and American.

49. APA refused to agree to any of the TWA pilots’ proposals, and instead terminated the discussions.

50. Unbeknownst to the TWA pilots, and upon information and belief, with the knowledge of ALPA, American and APA had negotiated and agreed upon a modification of the collective bargaining agreement before and during the discussions between TWA-MEC and APA. This supplemental agreement was known as “Supplement CC” or “Seniority Integration Agreement” and governs the allocation of seniority standing between incumbent American pilots and the TWA pilots.

51. Supplement CC forced the majority of TWA pilots to the end of the combined seniority list resulting in, with few exceptions, the seniority of TWA pilots being junior to that of the American pilots. Thus, for example, on April 10, 2001, many TWA captains with over 10 years of seniority instantly became less senior than American pilots hired for the first time on April 9, 2001.

52. Supplement CC did provide a very limited “dove-tailing” of seniority for some senior TWA pilots. But this dove-tailing was pure window dressing, as the only pilots allowed to dovetail were pilots who were close to the mandatory retirement age of 60 and who would never be a threat to the American pilots.

53. Supplement CC took effect on April 3, 2002, and became binding upon the former TWA pilots when the NMB declared that APA was the certified bargaining representative for the pilots in the single transportation system

54. TWA-MEC ordered its purportedly “independent” attorney assigned to it from ALPA to seek injunctive relief. Despite the fact that the attorney prepared for such an injunction, ALPA barred the attorney from seeking any injunction.

55. TWA-MEC also sought to arbitrate the fact that American did not use its “reasonable best efforts” to help the TWA pilots. However, ALPA controlled the grievance arbitration and, upon information and belief, acted in a manner and engaged in acts to assure an adverse decision. (C) ALPA’s Breach of Its Duty of Fair Representation

56. Before 1963, ALPA represented the pilots employed by American. However, at about that time, a schism occurred in ALPA, and the pilots employed by American split off from ALPA and formed their own union, APA. APA is a union that only represents airline pilots employed by American. Since about 1963, APA has been the collective bargaining agent for the pilots employed by American. American and APA are now and at all relevant times have been parties to a collective bargaining contract covering the bargaining unit of approximately 11,300 pilots employed by American. The American pilots represented by APA are the largest bargaining unit of pilots not represented by ALPA.

57. In April, 1999, APA as well as APA’s President and Vice-President were fined $45,000,000 by a U.S. District Court for engaging in an illegal “sick out” in connection with American’s acquisition of Reno Air. Specifically, the APA pilots had engaged in a work stoppage to protest the seniority rights obtained by the pilots employed by Reno Air in conjunction with the acquisition by American.

 

[surplus1]

ALPA v TWA Pilots - Part 3

58. Upon information and belief, APA did not have $45,000,000 to pay the judgment, and remains substantially in debt as a result of the judgment.

59. One of ALPA’s overriding objectives has been to unify all pilots under one union, namely ALPA and an important goal of ALPA has been to obtain representation rights for the American pilots. The American pilots, represented by APA, numbered over 11,000, and paid annual union dues of approximately $30,000,000.

60. In October 2000, the Executive Board of ALPA resolved to organize all pilots not then represented by ALPA. This included Federal Express, Continental, and American.

61. APA also held an executive board meeting in or about October of 2000. APA resolved at this meeting to explore a merger with ALPA. To this end, it created an “ALPA Exploratory Committee.” This committee was charged with preparing a report on ALPA and the ramifications of a merger. At all relevant times, the APA resolution and ALPA’s resolve to obtain the representation rights for American pilots was unknown to the TWA pilots and concealed from the TWA pilots by ALPA and its representatives.

62. APA stood to benefit from ALPA’s representation of American pilots because the American Pilots could escape paying back the monies owed in connection with the Reno Air judgment if the American pilots joined ALPA, rendering APA judgment proof. The American Pilots would then be advantaged by ALPA’s powerful national influence in subsequent collective bargaining.

63. In or about November or December of 2000, ALPA Duane Woerth and an entourage of ALPA officials met with APA in the Fort Worth/Dallas area, which is where APA is headquartered, upon information and belief, for the purpose of advancing ALPA’s goal of representing the American pilots. At all relevant times, this meeting was not disclosed to and was concealed from the TWA pilots.

64. In the last quarter of 2000, ALPA spent over $54,000 in expenses relating to its effort to organize the American pilots. This, too, was not disclosed and was concealed from the TWA pilots. Upon information and belief, ALPA spent considerable sums in 2001 and 2002 to organize the APA members.

65. At APA’s mid-winter board meeting in January/February, 2001, APA’s “ALPA Exploratory Committee” issued a report describing the advantages of the potential of a merger with ALPA. This report was compiled by APA officials with, upon information and belief, the direct input and support of ALPA. Again, the TWA pilots had no knowledge of the involvement of ALPA in this report which, at all relevant times, was concealed from the TWA pilots.

66. Throughout 2001, APA campaigned to organize the American pilots on behalf of ALPA. APA officials and pilots distributed ALPA membership cards and encouraged American pilots to sign them in order to join ALPA. The APA campaign to organize the American pilots for ALPA, and ALPA’s role in this campaign, was secret and knowledge of this campaign was specifically withheld and concealed form the TWA pilots.

67. Upon information and belief, APA and ALPA wanted the American pilots to join ALPA by way of a representation election because ALPA would then obtain representation rights without incurring the debt from the Reno Air judgment. If ALPA and APA merged, then ALPA would have been responsible for the Reno Air judgment.

68. A critical obstacle to ALPA’s attempt to organize American pilots was that those pilots did not want the TWA pilots to have any seniority at American, and were afraid that if they merged into ALPA, the TWA pilots would regain their seniority. It was of paramount important to American pilots that the seniority scheme that APA created in Supplement CC, which stripped the TWA pilots of their seniority, be binding on the TWA pilots.

69. At all times after October 2000, ALPA had a conflict of interest in representing the TWA pilots while ALPA’s overriding goal was to organize the American pilots. Upon information and belief, ALPA knew that the American pilots would not join ALPA if the TWA pilots did not have their seniority “end-tailed” at American. ALPA also knew that protecting their seniority rights was of paramount concern to the TWA pilots.

70. ALPA failed to disclose its efforts to organize the American pilots to the TWA pilots at any time during the period when TWA pilots were fighting to retain their seniority integration rights. ALPA further failed to disclose the secret arrangements that, upon information and belief, had already been made as heretofore described which would ensure the TWA pilots seniority rights being subordinated.

71. On February 19, 2002, the former TWA-MEC chairman Robert Pastore wrote ALPA president Duane Woerth, demanding information concerning ALPA’s activities in connection with APA and with ALPA’s actions in forcing the TWA pilots to concede and ultimately lose their seniority integration rights. On February 28, 2002, Woerth faxed to the TWA-MEC office his response, denying any wrongdoing, and refusing to supply any of the information that Pastore had required.

72. On March 5, 2002, the National Mediation Board determined that the American pilots represented by APA and the pilots employed by TWA-LLC were a single bargaining unit. On April 3, 2002, the NMB extended APA’s certification to the TWA-LLC pilots.

73. Supplement CC had no effect on pilots in the separate bargaining unit represented by ALPA at TWA-LLC until April 3, 2002, when the NMB certified APA as the collective bargaining representative of pilots within the combined system. At that time, the collective bargaining agreement between ALPA and the TWA-LLC, by its express terms, terminated.

74. Upon information and belief, ALPA intentionally sabotaged the efforts of the TWA pilots to protect and preserve their seniority integration rights in order for ALPA to obtain representations rights to American’s over 11,000 pilots and the $30,000,000 in dues they represented.

75. Throughout the entire time that TWA pilots’ seniority was imperiled, they complained to ALPA about its actions or lack thereof. ALPA routinely denied any association with APA, any involvement in organizing the APA represented American pilots, and any wrongful conduct.

76. As recently as August 31, 2002, the TWA pilots, through Robert Pastore, filed a final demand and appeal with ALPA to redress the conduct complained of in this suit. Even though ALPA has not yet responded to this final appeal, the appeal is futile, as ALPA has at all relevant times denied any wrongdoing, has concealed its conduct and misled the TWA pilots. The Plaintiffs have therefore exhausted their administrative remedies against ALPA.

77. As a direct result and consequence of ALPA’s actions and breach of its duty, hundreds of TWA pilots who were placed at he bottom of American’s seniority list have been furloughed, and hundreds more are likely to be laid off in upcoming weeks and months. Hundreds of TWA pilots have been downgraded from captain to first officer, with concomitant loss of pay an the likelihood that they will never regain their captaincy.

78. While the TWA pilots have been and continue to be furloughed en masse, American pilots who were hired one day before the assigned date of TWA pilot seniority were not furloughed, while TWA pilots with as much as 12 years of TWA seniority were laid off.

79. In or about May of 2002, TWA pilots obtained facts that, for the first time, demonstrated that ALPA had in fact been involved in organizing the American pilots at the very same time that ALPA was representing the TWA pilots in the critical issue of protecting their seniority integration rights. ALPA has successfully concealed its activities until that time.

80. As the collective bargaining agent of the Class, ALPA owed a duty of fair representation to the Class pursuant to the obligations imposed upon it by the RLA and otherwise and the fiduciary duty to represent the Class in good faith.

81. In engaging in the acts hereto described, ALPA breached its duty to the Class.

82. By reason of ALPA’s breaches of its duty, the Class has and will continue to suffer damages, including but not limited to, the loss of seniority rights, wages and other benefits.

WHEREFORE,

Plaintiffs, LeRoy Bensel, James Arthur, Patrick Brady, Theodore A. Case, Matthew J. Comlish, Darshanprit S. Dhillon, Lemuel A. Dougherty, Michael V. Finucan, John S. Hefley, Howard B. Hollander, Robert A. Pastore, and Sally Young , on behalf of themselves and all others similarly situated, demand judgment against ALPA:
1. for compensatory damages, costs, counsel fees, and pre- and post-judgment interest;
2. directing ALPA to take such action as is necessary to restore the seniority rights of the Class; and
3. such further relief as the Court deems just and equitable.
Dated: September 3, 2002
By: JERALD R. CURETON
H. THOMAS HUNT, III
ANTHONY VALENTI CURETON CAPLAN, P.C.
950B Chester Ave. Delran, New Jersey 08075 (856) 824-1001
JURY DEMAND Plaintiffs demand a jury trial on all issues so triable.
_____________________________________
JERALD R. CURETON
H. THOMAS HUNT, III
ANTHONY VALENTI
DATED: September 3, 2002 F:\Matters\AV\BENSL-ALPA\Pleadings\Complaint_V7.doc

 

[TWA Dude]

Re: ALPA v TWA Pilots - Part 3

I was wondering how long it would take for this news to appear here. I wish the complaints were worded a little better and there are some mostly insubstantial factual errors. The "inside word" is that they have plenty of proof of ALPA's duplicity in their dealings with TWA. Regardless I think we'll be lucky to see one dime come out of this lawsuit.

The irony is that if I'm lucky enough to get hired by a regional airline I'll likely become an ALPA member yet again! What a world.