9th Cir.: Advocacy Group Is Not a Union

By Jeffrey L. Rhodes Jul 7, 2015
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An airline pilot advocacy committee is not a collective bargaining representative under the Railway Labor Act (RLA), and its agreement with the airline did not bar the airline from changing terms of employment prior to negotiation with the new union, the 9th U.S. Circuit Court of Appeals ruled.

Allegiant Airlines was founded in 1997 with its headquarters in Las Vegas, Nevada. As it grew in the 2000s and started providing more flights, its pilots began to have more complaints and employment issues. In response, in 2004, Allegiant encouraged several pilots to create the Allegiant Air Pilots Advocacy Group (AAPAG), by which the pilots could raise issues and participate with management in determining questions of compensation and flight assignments, and resolution of grievances. Allegiant allowed AAPAG representatives to make a presentation to new hires and advocate on employees’ behalf with regard to grievances and terms of employment.

The AAPAG and management reached agreement on pilot work rules that, among other things, gave pilots a $5 per hour pay raise in exchange for less guaranteed flight time. The agreement was presented to the pilots for a vote and was overwhelmingly accepted by them.

In 2012, the International Brotherhood of Teamsters began an organizing campaign with the pilots that ultimately succeeded in its certification as the pilots’ collective bargaining representative by the National Mediation Board. In the course of certification proceedings, the Teamsters represented to the board that there was no prior collective bargaining representative of the employees. A certification election was held with the Teamsters as the only union listed on the ballot. After the board certified the Teamsters as the bargaining representative, Allegiant began changing the work rules to remove some of its generous provisions concerning terms of employment. The Teamsters claimed that this conduct violated the RLA, the labor relations statute governing airlines and railways. The RLA requires that, when a new union is certified, the company must continue following the existing collective bargaining agreement until it consults with the employees’ new union and seeks agreement to any proposed changes to employment terms.

The Teamsters filed a complaint seeking an injunction against Allegiant in federal district court. Allegiant argued to the district court that it did not have jurisdiction to address the issue; rather, only the National Mediation Board could determine whether the AAPAG was the prior collective bargaining representative. The district court disagreed with Allegiant and found that the AAPAG was in fact the prior bargaining representative, and issued an injunction barring Allegiant from changing the work rules until it had completed RLA-mandated mediation.

On appeal to the 9th Circuit, however, Allegiant again argued that the courts lack jurisdiction to deem the AAPAG a collective bargaining representative. Allegiant also argued that the Teamsters could not assert that the work rules were a prior collective bargaining agreement because the Teamsters had represented to the board that the AAPAG was not the employees’ current bargaining representative. Rather, the Teamsters stated in certification documents that no union was in place when it sought an election.

The 9th Circuit determined that the district court did have jurisdiction under the RLA to consider the issue of the AAPAG’s status. The court further decided that it could consider the Teamsters’ argument that the AAPAG was the prior bargaining representative, even though the Teamsters had made representations to the contrary in filings before the board. Ultimately, though, the 9th Circuit found that the AAPAG was not a bargaining representative based on its independent consideration of the facts of AAPAG’s relationship with Allegiant.

The RLA allows airlines and railways to form and foster employee committees to work with the companies to determine employment benefits and terms. Thus, Allegiant’s actions with the AAPAG fell neatly within this context, and the AAPAG never sought to comply with any of the obligations imposed upon unions, including annual Department of Labor reporting requirements.

The 9th Circuit noted that under Nevada employment law, the individual pilots may have a contract claim against Allegiant for changing the work rules, as Nevada law deems an employee handbook to be a contract enforceable in court. Such a contract, however, is not a collective bargaining agreement under federal labor law because it was not agreed to by an employer and a union certified as the exclusive bargaining representative of employees.

Teamsters Local 1224 v. Allegiant Air, LLC, 9th Cir., No. 14-16465 (June 8, 2015).

Professional Pointer: The RLA allows airlines and railways to encourage employee advocacy committees to facilitate communication of grievances and negotiate terms between them and their employees. However, employee advocacy groups outside of these industries carry added risks. An employer in the private sector can easily find itself committing an unfair labor practice by fostering such an advocacy committee that supersedes the typical function of a union in addressing employee terms and conditions of employment.

Jeffrey L. Rhodes is managing partner of the civil division of Albo & Oblon LLP, a business and employment law firm in Arlington, Va.

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