- The Washington Times - Monday, December 11, 2000

A D.C. federal appeals court recently ruled that transportation industry employers may not interfere with their workers' organizing efforts.

The ruling resolved a dispute between Atlas Air Inc., a freight airline, and the Air Line Pilots Association, a labor union that claimed Atlas Air was penalizing cockpit crew members who were attempting to arrange for union representation.

Until the U.S. Circuit Court of Appeals for the District of Columbia handed down its decision on Nov. 21, transportation industry employers had assumed that constraints against interfering with union activities applied only after workers had organized.

Labor policies for passenger and freight carriers are governed by the Railway Labor Act. But although the act has prohibited employers in other industries from interfering with union organizing, until now it was not clear the provisions applied to transportation carriers, said Jim Meath, a D.C. labor lawyer.

"It's a great decision for the carriers' unions," Mr. Meath said.

The ruling resulted from lawsuits between Atlas Air and its cockpit crews, which were considering union representation by the Herndon-based Air Line Pilots Association. Atlas Air leases a fleet of Boeing 747s to air freight haulers and also provides them with air crews, maintenance and insurance.

Shortly before the union arranged for a representative election, Atlas Air sent a letter to its workers listing minimum requirements for participating in its profit-sharing plan. Membership in a union was listed as a factor that would bar participation.

Later, the company notified employees that the profit-sharing plan would end if any union were certified to represent Atlas Air workers. The union subsequently filed for a representation election, and lost.

Last year, the Air Line Pilots Association filed for a second representation election, and won. The union now represents 850 Atlas Air crew members.

Shortly before last year's election, however, Atlas Air sent letters to its employees telling them it might change the conditions of employment if the union were certified. And after the election, Atlas Air terminated the profit-sharing plan for cockpit crew members. The crews then lost 25 percent of their annual compensation.

In May 1999, Atlas Air petitioned the court to declare that its eligibility requirements for the profit-sharing plan were legal under the Railway Labor Act. The company also asked the court to declare it could change the pay, work rules and employment conditions of the cockpit crew members while it negotiated a collective bargaining agreement with them.

The Air Line Pilots Association filed a counterclaim, saying Atlas Air was engaging in unlawful interference with its right to organize workers.

The District Court agreed with Atlas Air. The Air Line Pilots Association appealed to the D.C. Circuit Court of Appeals, which reversed the District Court's decision.

The appeals court acknowledged that the Railway Labor Act allowed employers to change work conditions when no labor contract governs their behavior. But it stated that employers could not legally interfere with employees' union-organizing rights. The timing of Atlas Air's decision to eliminate cockpit crews' profit-sharing eligibility indicated it was trying to penalize employees, the court said.

Atlas Air's retaliatory action was the kind of "interference, influence or coercion" explicitly barred by the Railway Labor Act, the court said. It further declared that union workers must be allowed to participate in any company profit-sharing plans that other employees can participate in.

"To hold otherwise would allow a carrier, without legal consequence, to slash to subsistence levels the wages of those employees who elect to unionize," the court stated.

"While carriers retain the right to make unilateral changes in status quo working conditions, so long as there is no collective bargaining agreement, they may not make such changes which selectively penalize unionized employees so as to interfere with, coerce or influence their decision to exercise their rights under the [Railway Labor Act]," the court continued.

Greg Amussen, Air Line Pilots Association chairman for the Atlas Air unit, said the "court decision shows that these tactics and retaliatory measures will not be tolerated and that management does not have a free hand in its efforts to intimidate workers."

Atlas Air officials said they "will exhaust all legal remedies" in further court proceedings to determine whether the union members should receive compensation.

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