APFA Constitution Committee Memo

Circumventing the Memberships' Rights by Reinterpreting the APFA Constitution

APFA Constitution Committee Memo


TO: APFA Executive Committee and APFA Board of Directors

FROM: APFA Constitution Committee

DATE: March 17, 2003

RE: Ratification of Potential Agreement with American Airlines, Inc.

As we understand it, negotiations between APFA and American Airlines may soon result in a modified collective bargaining agreement that hopefully would help avert the Company’s filing for bankruptcy. The Company has informed APFA that any amended agreement would have to be ratified no later than April 15, 2003. The Constitution Committee was asked for its opinion as to whether the Constitution would permit ratification within that time frame. Assuming legal research by APFA’s counsel confirms that this approach is viable, the Committee urges APFA to immediately seek a declaratory judgment that the Executive Committee has the authority to shorten the ratification period in the current, unforeseen emergency situation.

Article XI.E (2) of the Constitution provides that: “The time limit for the return of ratification ballots (the Balloting Date) shall not be less than thirty (30) days after the mailing of the ballots to the respective membership.” There is consensus within the Constitution Committee, however, that in drafting the Constitution, the Committee never contemplated the potentially urgent need for ratification that can arise – as it apparently has now – in the context of concessionary bargaining. We are confident that had we considered that issue, the Committee would have drafted and recommended an expedited ratification process. Tellingly, in the one situation the Committee did anticipate in which there is an urgency to ratify – reaching an agreement to end a strike – the Constitution does provide for a very quick ratification procedure. (See Article XI.2.) Moreover, the Constitution grants the Executive Committee and the Board of Directors broad powers to take necessary actions to protect and promote the interests of APFA members.

In light of these provisions, we believe that inherent in the Constitution is Executive Committee and Board of Directors power to deal with a bona fide emergency. Even though the explicit time frame in Article XI.E(2) is 30 days, it would be inconsistent with the spirit of the Constitution to sacrifice the interests of the membership in the name of compliance with a provision that was never intended to govern the exigent situation now confronting us.

Therefore, the Constitution Committee strongly urges APFA to file a lawsuit in Texas state court in Tarrant County seeking a declaratory judgment that the Executive Committee has the constitutional authority to shorten the ratification period if APFA and the Company reach agreement on modifications to the contract. Although the Constitution Committee does not know the precise procedural steps that would have to be followed, we believe that most – if not all – judges would be extremely sympathetic with what APFA is trying to accomplish. (APFA legal counsel would be able to advise the Executive Committee and the Board of the impact such a declaratory judgment would have on potential member challenges to a shortened ratification period. An additional option would be to ask the Company to indemnify APFA for any legal costs and liability that arise if APFA members sue the Union about the ratification issue.)

The full Constitution Committee strongly supports this approach, and every Committee member is committed to working with legal counsel to provide necessary affidavits, testimony, or other assistance.

Please let us know if you wish to discuss this further.

Tim Burns, Randy Edwards, Kip Fry, Patt A. Gibbs, Michael Kelliher, Rebecca Kroll, Debra Murphy