Glowing accolades from politicos of every stripe have poured in for former Supreme Court Justice Sandra Day O’Connor, who died on December 1. But for workers once employed at now-defunct Western Airlines, such praises may ring hollow. O’Connor, you see, busted their union and made sure it stayed that way.
I was an officer of Air Transport Employees (ATE), an independent union of about 6,000 ground service workers at Western’s facilities throughout the United States and Canada. I used to describe our membership as everyone who moved on the ground except maintenance and food service workers. We had dozens of job classifications: reservations agents, ticket counter and customer service agents, air freight and baggage handlers, skycaps, computer programmers and operators, payroll and administrative personnel, secretaries and clerks, ground hostesses—you name it.
We also had a collective bargaining agreement with the best package of wages, rules, and working conditions in the industry. Among our many protections was a guarantee that, in the event of a merger, our members’ contract rights would be recognized—at least until workers in the merged company could vote on union representation.
It was fairly straightforward, one would think. But there’s an old saying in the labor movement: “A contract is a contract unless it’s a union contract.”
In late 1986, Delta Airlines announced a planned takeover of Western effective April 1, 1987. We, the union, immediately put Western on notice that we expected them to honor our merger protections. The company refused and wouldn’t even arbitrate the issue. We filed a lawsuit claiming a “major dispute” under related labor law to obtain: 1.) an injunction against the merger; and 2.) arbitration to decide whether we’d have rights and a union election.
The Teamsters had the same beef we did, and our lawsuits against Western were combined. As the cases worked their way through the courts, Western and Delta continued on their merry way as if the unions didn’t matter. We were, in their eyes, a minor irritation, rather like a gnat to be swatted by the tail of a water buffalo.
As weeks and months passed, the airlines were busy dealing with government agencies, ordering uniforms, sending out layoff notices, amending vendor contracts, and taking out ads celebrating the merger. Heavily-unionized Western was to be gobbled up like a sardine in the jaws of the mighty, nonunion Delta.
Sandra Day O’Connor received and ruled on it while the rest of the court was asleep.
Secretly, some Delta ground service workers were looking forward to their first-ever chance to vote for a union. ATE officers and members traveled to key Delta cities to speak with them about the benefits of our excellent contract. Many were interested, but most were too afraid to talk. Meanwhile, our members were worried about their contract rights, especially seniority and whether it would be integrated or just disappear.
Fast forward to March 31, 1987: At 8 p.m. the Ninth Circuit Court of Appeals acted on our lawsuit, stayed the merger, and ordered an expedited arbitration. We were jubilant, but we knew the real war would be winning over the hearts and minds of the much larger group of workers at Delta. For now, we thought, we were able to survive for the fight ahead.
The airlines immediately filed an appeal to the U.S. Supreme Court. Sandra Day O’Connor received and ruled on it while the rest of the court was asleep. We hadn’t even seen the appeal or had a chance to respond to it when, at 2:15 a.m., she vacated the Ninth Circuit’s stay and allowed the merger to proceed.
Bob Bush, one of our attorneys at the time, recalls what happened: “Those were some crazy days. I still remember vividly getting that phone call from the Supreme Court in the middle of the night. I said to the clerk, ‘Doesn’t she realize that ends the case?’ He said, ‘Yes,’ and that was it.”
Delta was poised to pounce. At the opening of business a few hours later, their lawyers filed a certificate of merger in the state of Delaware, where Delta was incorporated. Their spokesman declared, “That ends the existence of Western Airlines. The company is now totally merged into Delta.”
ATE was toast. With Western gone, there was no more contract and no one to sue.
Only later that day did we learn about an undisclosed connection between O’Connor and Gibson, Dunn & Crutcher, the airlines’ law firm, which had offices all over the country, including Washington, D.C., the home of the Supreme Court. She had sought work with the firm in California after completing law school back at a time when women were pretty much barred from the bar. They only offered to hire her as a secretary.
Questions roiled about how it all went down, but in the end it didn’t matter. Two days later, the full court’s affirmation was a foregone conclusion. There was no turning back for them nor moving forward for us.
In the days that followed, I must have read O’Connor’s ruling a hundred times, poring over her concern for corporate hardship and potential loss of profits, her disregard for workers losing thirty-plus years of bargaining gains and her focus on the airlines’ exhaustive merger activities and how they all could be upended by any other resolution but this.
Baloney. Arbitration had been a simple solution to settle the dispute months before, but Western and Delta were having none of it. Delta was never going to allow their workers to vote for a union. They aggressively pursued their merger plans despite ongoing litigation and then used their manufactured crisis to prevail.
O’Connor bought it hook, line, and sinker, ludicrously lamenting the airlines’ self-inflicted “Hobson’s choice” while relegating our members to an uncertain future and our union to oblivion. We had no doubt that was the plan all along.
The merger worked well for Delta, but it was a long, hard slog for our members who had to adjust, transfer or quit. For months afterward I'd get phone calls, some tearful, about homes put on short sale, new shifts disrupting personal life, and company rules without recourse. All I could do is commiserate.
Even though it’s mostly true that “a contract is a contract unless it’s a union contract,” as our members learned the hard way, no contract at all is far worse.