Labor Unions Ask Supreme Court to Reverse Ruling on Delta

Two labor unions Thursday asked the full Supreme Court to overturn Justice Sandra Day O’Connor’s decision Wednesday that permitted Western Airlines and Delta Air Lines to complete their merger and temporarily ended the unions’ right to represent 7,600 former Western employees now employed by Delta.

Delta became the nation’s fourth-largest air carrier Wednesday, absorbing Western in a deal worth nearly $900 million, after O’Connor issued a middle-of-the-night stay of an injunction issued by a federal appellate court.

That injunction had barred completion of the merger until an arbitrator had the opportunity to rule on whether Delta is obliged to honor Western’s contracts with the Air Transport Employees and the Teamsters Union.

“If permitted to stand, without modification, the stay order will result in irreparable harm of the greatest extent,” said the unions’ petition to the full court, filed by Los Angeles attorney Robert A. Bush.

According to an affidavit filed with the petition by Jim Shields, president of the Air Transport Employees, former Western employees would lose their contractual guarantees to a number of rights and benefits if their old collective bargaining agreement ceases to exist.

He said these include all seniority-related rights, such as job selection and transfers, protection against unjust discharges, formal grievance procedures and family travel benefits, among others.

“The (O’Connor) stay is particularly inappropriate because Delta would have suffered virtually no harm if the stay had not been granted,” the petition for the unions added.

The petition stressed that Tuesday’s order by the U.S. Circuit Court of Appeals for the 9th Circuit stated that completion of the merger would not be blocked if Delta agreed to be bound by an arbitrator’s decision on the validity of successor clauses in the unions’ contracts with Western.

Delta has consistently taken the position since the agreement last September on the agreement on the merger with Western was announced that it would not be bound by the clauses, which give the unions the right to represent Western workers after a merger. The clauses were negotiated in return for wage and work-rule concessions several years ago when Western was beset by financial difficulties.

On Thursday, O’Connor issued a nine-page opinion explaining why she granted the stay at about 2:40 a.m. EST on Wednesday. She said the potential cost of enjoining the merger was “staggering in its magnitude” because of the need to change flight schedules and supply contracts, move personnel and a host of other issues.

“Because of the operational adjustments that are already in place, the FAA (Federal Aviation Administration) has expressed doubt whether Western will be permitted to continue operations should the merger not take place, potentially stranding thousands of travelers,” O’Connor said.

In her opinion, she referred to several decisions, including one issued Tuesday by the federal Court of Appeals for the District of Columbia in a similar case involving Western’s flight attendants.

In that case, the court denied the motion of the Assn. of Flight Attendants, which had represented Western’s attendants, to compel arbitration on whether the union should continue to represent the attendants until an election had been held among all Delta attendants on whether they wanted a union.

“The reasoning of every other Court of Appeals that has ruled on the issue raised before the 9th Circuit casts grave doubt on the validity of the 9th Circuit’s action in this case,” O’Connor’s opinion stated.

The issue she referred to is the effect of a merger on a collective bargaining agreement’s provision dealing with union representation at an airline.

“We don’t think the union’s legal position has any merit,” Jim Ewing, a Delta spokesman, said Thursday. “Justice O’Connor has made herself clear.”

The Supreme Court could take up the unions’ appeal at its conference this morning in Washington. The full court could sustain O’Connor, reverse her or wait until a later date before taking action.