The opinion of the court was delivered by: James Robertson United States District Judge
Plaintiffs, all Continental Airlines employees over sixty years old, ask this court to order their union, defendant Air Line Pilots Association International, to withdraw a grievance challenging Continental's interpretation of the Fair Treatment for Experienced Pilots Act, 49 U.S.C. § 44729. Plaintiffs allege that ALPA filed the grievance with the age-discriminatory intent of benefitting its younger members at the expense of older ones. Defendant moves to dismiss. Because plaintiffs have not yet been and may never be injured by ALPA's grievance, their claims are not ripe for adjudication. Defendant's motion will accordingly be granted.
When enacted in December 2007, the Fair Treatment for Experienced Pilots Act, 49 U.S.C. § 44729, increased the maximum age for pilots who fly commercial airliners from 60 to 65. This increase came with a "non-retroactivity" clause stating that:
No person who has attained 60 years of age before the date of enactment of this section may serve as a pilot for an air carrier . . . unless - (A) such person is in the employment of that air carrier in such operation on such date of enactment as a required flight deck member; or (B) such person is newly hired by an air carrier as a pilot on or after such date of enactment without credit for prior seniority or prior longevity . . . .
Translated, this provision means that individuals who were over 60 when FTEPA was passed can work as pilots, but -- unless they are "required flight deck members" -- without their accrued seniority. The cancellation of seniority is significant, because pilots are allocated work through a competitive bidding system that gives senior pilots priority in choosing the types of aircraft they will fly, their positions in the cockpit, the locations they fly from, and the trips they will work. Tr. 4:4-7.
Plaintiffs are all pilots who work for Continental as flight instructors and/or check airmen, and they were all over 60 years old when FTEPA was passed. Compl. at 2. Continental --and apparently only Continental -- interprets the language of the statute to allow flight instructors and check airmen to be treated as "required flight deck members." Plaintiffs therefore continue to work, and their seniority is intact. Id.; Tr. 26:4-20.
On September 29, 2008 ALPA filed a grievance alleging that Continental's interpretation of the statute is erroneous and that treating flight instructors and check airmen as "required flight deck member" violates its collective bargaining agreement. Id. In ALPA's submission, only a flight engineer (a third flight deck crew member necessary on certain older aircraft) is a "required flight deck member." MTD. at 2.
Plaintiffs assert that ALPA, by filing the grievance, acted illegally in four different ways.*fn1 First, they claim that ALPA violated the Age Discrimination in Employment Act, 29 U.S.C. § 623(c), which states that it is unlawful for a labor organization-- (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age; (2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's age; (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.
29 U.S.C. § 623(c); Compl. at 7-8.
Second, plaintiffs allege breach of contract, asserting violation of the union's obligation under its constitution to "represent . . . all members of the airline piloting profession; promote the interests of that profession; and safeguard the rights, individually and collectively, of its members." Compl. at 8-9. Third, plaintiffs argue that ALPA violated the union's duty of fair representation under the Railway Labor Act, a duty that prohibits a union from making "irrelevant and invidious distinctions" between its members, Conley v. Gibson, 355 U.S. 41 (1957), that are "arbitrary, discriminatory, or in bad faith." Air Line Pilots Ass'n, Intern. v. O'Neill, 499 U.S. 65, 67 (1991). Compl. at 9-10; Opp. at 9-11. Last, plaintiffs contend that ALPA somehow tortiously interfered with its own collective bargaining agreement with Continental. Compl. at 10.
Conspicuously absent from the complaint is a request for this court to resolve the meaning of the term "required flight deck member" in 41 U.S.C. § 44729. Defendant asserts, and plaintiffs apparently concede, that this question is initially subject to the grievance process, MTD at 8-9, the result of which can ...