I am Joshua M. Javits and I have been asked by the IAM and ExpressJet to oversee the seniority
integration review process for the combination of seniority lists resulting from the merger of
Atlantic Southeast Airlines (“ASA”) and ExpressJet. By way of brief background, I am a
full-time professional mediator and arbitrator. I am a member of the National Academy of
Arbitrators, a roster arbitrator for the American Arbitration Association and Federal
Mediation and Conciliation Service, and a former Chairman and Member of the National Mediation
Board. By agreement between the IAM and the Company, I was appointed as a Neutral to
assist in the protest review process arising from the initial seniority list integration. A copy
of this initial integrated list is attached to this letter, which is available online and will be
included in the ratification materials for the recently negotiated tentative joint collective
bargaining agreement.
At the end of 2010, ExpressJet Holding, Inc., the parent company of ExpressJet became a
wholly-owned subsidiary of ASA and announced that the two carriers would merge. Pre-merger
ExpressJet Flight Attendants were presented by the IAM, while pre- merger ASA Flight Attendants
were represented by another union. In October 2011, the National Mediation Board found that
ASA and ExpressJet were operating as a single carrier. 39 NMB 5 (2011). A representation
election was conducted in accordance with the procedures of the Railway Labor Act and the
IAM was certified as the bargaining representative for Flight Attendants at the combined
carrier. 39 NMB 259 (2011).
According to federal law, known as the McCaskill-Bond Amendment, in airline mergers the
integration of seniority must be fair and equitable. The law further provides that when the same
union represents the employees of the crafts and classes of the two merging carriers, the merger
policy of that union, in this case the IAM, shall be applied. The IAM’s longstanding policy in
mergers is to integrate seniority lists by date of hire into the classification, as the IAM has
done here in creating the initial Flight Attendant seniority list. This method of seniority
integration by date of entry into classification, commonly referred to as “dovetailing,” is widely
recognized as a fair and equitable method of seniority integration. As the Supreme Court found
in Humphrey v. Moore, dovetailing is “. . . neither unique nor arbitrary. On the contrary, it is a familiar
and frequently equitable solution to the
inevitably conflicting interests which arise in the wake of a merger.” 375 U.S. 335, 347 (1964);
see also In re ABF Freight System, Inc., Labor Contract Litig., 988 F. Supp. 556, 566 (D. Md. 1997)
(“Case law has recognized that dovetailing is an appropriate and fair way to resolve the
problem presented when seniority rights are affected by the combining of the operations
of two or more companies . . .”); Wheeler v. Bhd. of Locomotive Firemen & Enginemen, 324
F. Supp. 818, 827 (D.S.C. 1971) (recognizing dovetailing as method “to distribute the work
opportunities on an equal basis throughout the merged system”); Nat’l Airlines Acquisition,
94 C.A.B. 433 (1982) (dovetailing seniority lists satisfies fair and equitable standard).
I understand that seniority for both pre-merger groups was generally comparable and, therefore,
the integration to create the initial list appears to have been relatively
straightforward. Integration was done based on the Flight Attendants’ existing seniority dates
with their pre-merger carriers, which are the dates they were assigned when they started in the
classification, and any new ties on the list resulting from the integration process were
broken by date of birth, with the older employee listed first. My initial review of the list
revealed that pre-merger seniority order of the pre-merger work groups was maintained
during this process, which is consistent with a basic tenet of seniority integration
that the relative seniority order of each pre-merger group should generally not be disturbed.
I also understand that there were some differences between the pre-merger groups in seniority
accrual and retention for employees who, for example, went to work for management,
transferred outside the department, or were furloughed. Additionally, some employees were credited
with training time and others were not. As part of this process, however, the IAM did not go back
and retroactively adjust any existing seniority dates. This is also a well-accepted practice of
seniority integration. It is generally viewed as inappropriate to retroactively alter the
product of past seniority practices during an integration because this too may disturb the
relative order of pre-merger lists. Likewise, it is improper and potentially chaotic to delve into
prior seniority integrations in a manner that would undo or alter the seniority determinations made
during past airline mergers and consolidations. Additionally, it is often impractical, if not
impossible, to re-write years of history based on records that may not be accurate or may not exist
for all employees. See Arbitration among Delta and Comm. of Former Western Flight Attendants and
Original Delta Flight Attendants, (Thomas T. Roberts, 1990) (rejecting proposal that training date
should be used instead of date of hire because it involved too much “guesswork and
estimates” which “render[ed] too many of the dates unreliable to serve as a valid
benchmark of seniority integration”).
The initial seniority list is being published and distributed in conjunction with the ratification
materials for the recently reached tentative joint collective bargaining
agreement. By agreement of the parties, the initial list will go into effect on the date of
ratification, subject to corrections made through a protest review process overseen by
myself. The ratification vote is scheduled to conclude on April 5, 2019, with results
announced by the end of the following week. Accordingly, the 30-day protest window will commence
on Monday, April 15, 2019, and conclude on Wednesday, May 15, 2019. As agreed between the IAM
and the Company, affected employees may submit for my determination individual protests
regarding their placement on the integrated seniority list by no later than May 15, 2019. All
protests should be sent by mail or email addressed as follows:
Attn: Neutral Joshua M. Javits
c/o Guerrieri, Bartos & Roma, P.C.
1900 M Street, N.W., Suite 700
Washington, DC 20036
Each protestor must include the following information: full name, employee number, job
title, station, and a clear statement of the basis for the protest. The failure to include this
information may prevent me from conducting a complete investigation of the protest. Employees
should also include any documents which they believe are relevant to their seniority protests. I
will consider all timely and complete protests received by the deadline and issue a final and
binding determination with respect to each. At the conclusion of the protest process, I will
issue a final integrated seniority list, incorporating any necessary changes resulting from
my protest determinations.
I look forward to continuing to work with the IAM and the Company to successfully
finalize this seniority integration process.
