STRENGTH IN UNITY  
Airline Pilots Securing Their Future through ALPA

Management Gets WARN-ed

ALPA, Pan Am pilots win furlough case-justice delayed is not always justice denied.

Peter Janhunen, Manager, ALPA Communications
Air Line Pilot
, April 2005, p.34 

After a long legal struggle by ALPA, a group of former Pan Am pilots has received back pay due them because they were furloughed without proper notice in 2002. The case, and the work that went into it, is a good example of the difficulties--and rewards--of holding management accountable for its misdeeds. 

The court entered an order directing Pan Am to pay the affected pilots and flight engineers 60 days' back pay, plus benefits, interest, and a reasonable attorneys' fee.

ALPA brought the action against Pan Am Airways Corporation for its failure to give a 60-day written notice of a "mass layoff," as required by the Worker Adjustment and Retraining Notification (WARN) Act. 

The Act requires that managements give at least a 60-day notice before they launch a mass layoff, which is defined as at least 33 percent of the full-time employees who work at a single site of employment. ALPA contended that Pan Am management had to comply with the law--and management said the law did not apply. Some 2 years later, the decision is in: ALPA was right. 

"This case was about as clear cut as it gets--Pan Am did not follow the law," says Jerry Anker, the ALPA managing attorney who handled the case. "But for two years, Pan Am refused to admit its failures, fighting us every step of the way." 

As to the facts: Between Sept. 5 and Oct. 4, 2002, Pan Am laid off a substantial number of employees from its Portsmouth, N.H., operations, including pilots and flight engineers. Pan Am did not provide a 60-day advance written notice of this layoff either to ALPA or to the employees individually. In fact, ALPA received no written notice at all. Some of the affected pilots and flight engineers received a few days' written notice, while others only learned of the layoff through telephone calls placed to them by Pan Am Director of Flight Operations Russell Jester and Pan Am Chief Pilot Skip Monk. 

ALPA, after filing its lawsuit, required Pan Am management to produce the records needed to prove that this layoff affected more than 33 percent of the Portsmouth employees. These records seemed to establish beyond dispute that this was a "mass layoff" under the law, so ALPA asked the court to issue an immediate judgment in its favor. Predictably, management asserted that none of the facts were as they seemed: it wasn't a mass layoff, the pilots and flight engineers didn't share a place of employment, and management had no need to give the employees any advance notice. While the judge did not accept these arguments, he did rule that ALPA would have to gather still more information from Pan Am to prove the facts that management was disputing. 

After another round of fact-gathering, Pan Am was forced to concede that a mass layoff had occurred. However, it still claimed that it did not have to give a 60-day notice because the layoff was caused by "unforeseen business circumstances." The judge ultimately rejected this argument, agreeing with ALPA that it was raised too late to even be considered. 

"I think that, in situations like this, management is betting we won't go to the trouble of continuing legal action," explains Julie Glass, an ALPA attorney who worked on the case. "We see it time and again; management puts up obstacles every step of the way in an attempt to avoid ultimate judgment." 

In the case of 48 furloughed ALPA members, that ultimate judgment did come at last. Relief under the WARN Act provides that any employer who fails to give the requisite 60-day notice of a mass layoff shall be liable to all affected employees for 

o back pay for each day of violation; 
o benefits under an employee benefit plan, including the cost of medical expenses, incurred during the employment loss, which would have been covered under an employee benefit plan if the employment loss had not occurred. 

The court in fact entered an order directing Pan Am to pay the affected pilots and flight engineers 60 days' back pay, plus benefits, interest, and a reasonable attorneys' fee as described above. Even in defeat, management planned to keep resisting paying the employees and started to make plans to appeal the decision, but faced with growing legal costs and a losing set of arguments, settled the case out of court with ALPA. One of the conditions of the agreement is that ALPA will not publicize the amount of the settlement. 

A former Pan Am furloughee, who now flies for another ALPA carrier, remains so bitter about how Pan Am treated him that he could not bring himself to discuss his experiences.