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October 29, 1980


The opinion of the court was delivered by: OBERDORFER



 1. Pan Am is a carrier by air within the meaning of Section 201 of the Railway Labor Act ("RLA"), 45 U.S.C. ยงยง 151 et seq., and is subject to the provisions of the RLA.

 2. IUFA is the successor collective bargaining representative of Pan Am's approximately 6,500 employees in the craft or class of flight attendants for purposes of collective bargaining under the RLA, pursuant to a certification issued by the National Mediation Board ("NMB") on October 17, 1977 (Mueller Aff. PP 1 and 5B). *fn1"

 3. Pam Am and IUFA are the parties to a complete collective bargaining agreement ("Pan Am-IUFA working agreement"), signed April 7, 1979 (Mueller Aff., Ex. B, p. 209). The date stated in the current Pan Am-IUFA working agreement for reopening is May 1, 1981 (Sec. 39, p. 208).

 4. Pan Am employs flight attendants at nine different base stations (Kriendler Aff. P 1). Approximately 6,500 flight attendants are assigned to those nine stations. Prior to the merger of National Airlines ("National") into Pan Am on January 19, 1980, National had its single base station at Miami which, since the merger, has operated separately from the Pan Am Miami base station (Kriendler Aff. P 1). This case involves the furloughing of flight attendants formerly employed by Pan Am; it does not involve the furloughing of any former National flight attendants.

 5. All of the flight attendants involved in this case were covered by the Pan Am-IUFA working agreement prior to the merger and have been covered by that agreement since the merger. That agreement remains in full force and effect.

 6. The Pan Am-IUFA working agreement contains various provisions arguably giving Pan Am the right to furlough flight attendants and close flight attendant base stations. Examples include:


a. Section 9A.1 providing that:


... the Company retain(s) the right to determine the geographic location of Flight Attendant base stations, the assignment of flying to base stations, and the grouping of flights into patterns for the purpose of scheduling Flight Attendants.


b. Section 9A.6.a. governing "Allocation of Flight Time" and providing that:


It is specifically understood that the Company shall, after consultation with the Flight Service System Scheduling Committee have the right to:


a. Allocate and reallocate Flight Service flight time among the various Flight Service bases as they are now or may hereafter exist.


c. Section 21A.2 providing that:


In the event of a reduction in force, or a deactivation of a Flight Service Base, or a consolidation of Flight Attendant base stations, ... (t)he Company shall pay the reasonable transfer expenses in connection with any transfer resulting from such displacement.


d. Appendix C providing that:


Nothing in the above paragraph shall be construed to require the Company to maintain any existing Flight Attendant base stations or to maintain any specific number of Flight Attendants or Pursers at a particular base station.

 Most important, Section 26, the "reopener" provision of the agreement, provides, upon the request of either the Company or the Union for conferences, mediation and arbitration in the event of specified contingencies, including a merger (Sect. 26.D, E and F, pp. 166-168). Section 26 provides that in the event of invocation and utilization of the Section 26 procedures, "the provisions of the then existing agreement shall continue in effect" pending award of a Board of Arbitration under Section 26 (Sect. 26.F.5, p. 168).

 7. On July 29, 1980, IUFA initiated the Section 26 procedures in relation to the merger, by a written request for conferences under Section 26.D of the working agreement (Mueller Aff. Ex. G). On September 9, 1980, the parties held their initial conference pursuant to that request (Mueller Aff. Ex. U). It is uncontradicted, except in the most general, non-specific terms, that, as of October 20, 1980, they had held 10 conferences pursuant to that request (Mueller Aff. P 5U).

 8. On August 4, 1980, Pan Am, IUFA, and IUFA's "Blue" (former Pan Am) and "Orange" (former National) Divisions signed a stipulation for arbitration before Richard R. Kasher of a dispute concerning the integration of the Pan Am and National seniority lists in a fair and equitable manner, pursuant to Sections 3 and 13 of the Labor Protective Provisions ("LPPs") imposed by the Civil Aeronautics Board as a condition to its approval of the merger of National into Pan Am (Mueller Ex. H). The Stipulation specified that a final award providing for integration of the Pan Am and National seniority lists should be filed no later than December 31, 1980. Paragraph 5(g) of the Stipulation further provided that "in the event it appears that a furlough may be required before an integrated seniority list has been established by a final Award hereunder", Pan Am would give notice of the furlough, and there would then be hearings before the Arbitrator with respect to the method to be followed in effecting any interim furloughs, and an interim award would be issued establishing the procedures to be followed in making the furlough. (Mueller Aff. Ex. H. p. 6). In the event of interim proceedings and an interim award, the final award could be delayed for thirty days beyond the time specified. (Id.) Paragraph 5(g) was included in the Stipulation on the insistence of Pan Am. The purpose of the Stipulation for an interim award was to provide procedures for implementing a furlough if Pan Am deemed a furlough to be necessary before a final award.

 9. IUFA did not participate in this stipulation or the ensuing arbitration as an entity, apparently because the Blue (Pan Am) and Orange (National) employees who did participate were its own members and the entity could not take a position in favor of one element without possible dereliction of its representation duty to the other.

 10. On August 15, 1980, pursuant to paragraph 5(g) of the Stipulation of August 4, 1980, Pan Am gave IUFA formal written notice of the furloughing of 1,097 Pan Am flight attendants, including the closing of the Seattle and Washington, D.C. bases, effective November 1, 1980 (Mueller Aff. Ex. I). Hearings pursuant to the notice and Stipulation resulted in an interim award issued September 2, 1980, approving Pan Am's proposal, in the notice and at the hearings, to accomplish the furloughs of the former Pan Am flight attendants pursuant to the separate Pan Am seniority roster and in accordance with the furlough provisions of the Pan Am-IUFA working agreement (Mueller Aff. Ex. M: Mueller Supp. Aff. P 11). 11. Defendant's affidavit avers that it has furloughed Pan Am flight attendants on four previous occasions: Dec., 1973 1,035 flight attendants Oct.-Dec., 1974 393 flight attendants April, 1975 309 flight attendants Nov.-Dec., 1975 120 flight attendants


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