IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

DAVID SAMBRANO, individually, and 

on behalf of all others similarly situated,

Plaintiffs, 

v.

UNITED AIRLINES, INC.,

Defendant.

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Civil Action No. 

4:21-CV-01074-P

DEFENDANT UNITED AIRLINE INC.’S POST-HEARING BRIEF 

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TABLE OF CONTENTS

Page

-iINTRODUCTION ......................................................................................................................... 1

BACKGROUND FACTS.............................................................................................................. 1

ARGUMENT................................................................................................................................. 2

I. Applicable Legal Principles............................................................................................... 2

II. Application to Plaintiffs’ Proposed Accommodations ...................................................... 3

A. Testing at Home..................................................................................................... 4

B. Expansion of Pre-Departure Testing...................................................................... 7

C. Symptom Checks & Expanded Sick Leave ......................................................... 10

D. Reliance on Natural Immunity............................................................................. 11

III. Plaintiffs Cannot Waive Contractual or Regulatory Burdens on United......................... 12

A. Rights of the Putative Class Members Cannot Be Waived.................................. 12

B. Collective Bargaining Agreements Cannot Be Waived....................................... 12

C. Federal and State Laws Cannot Be Waived................................................................ 14

IV. The Collective Bargaining Agreements Are Also Germane to United’s 

Accommodations and the Issue of Irreparable Harm ...................................................... 14

A. Alternate CSR Positions ...................................................................................... 14

B. Loss of Seniority as Alleged Irreparable Harm ................................................... 15

CONCLUSION............................................................................................................................ 15

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-iTABLE OF AUTHORITIES

Page

CASES

Anderson v. United Airlines,

No 21-1050, Dkt. 1 (M.D. Fla. Oct. 18, 2021) ..........................................................................7

Baker v. F.A.A.,

917 F.2d 318 (7th Cir. 1990) ...................................................................................................14

Barrington v. United Airlines, Inc.,

No. 1:21-cv-02602-RMR-STV, ECF No. 23 (D. Colo. Oct. 14, 2021) (App. 

Ex. E) .......................................................................................................................................10

Bodle v. TXL Mortg. Corp.,

788 F.3d 159 (5th Cir. 2015) ...................................................................................................14

Brener v. Diagnostic Ctr. Hosp.,

671 F.2d 141 (5th Cir. 1982) ...............................................................................................2, 11

Bruff v. N. Miss. Health Servs., Inc.,

244 F.3d 495 (5th Cir. 2001) .....................................................................................................2

Claiborne v. Ill. Cent. R.R.,

583 F.2d 143 (5th Cir. 1978) ...................................................................................................15

Creusere v. Bd. of Educ. of City Sch. Dist. of City of Cincinnati,

88 F. App’x 813 (6th Cir. 2003) ................................................................................................3

Forby v. One Techs., LP,

No. 3:16-CV-856-L, 2020 WL 4201604 (N.D. Tex. July 22, 2020).......................................12

Holmes v. Helms,

705 F.2d 343 (9th Cir. 1983) ...................................................................................................14

Moseley v. Goodyear,

612 F.2d 187 (5th Cir. 1980) ...................................................................................................15

Mungin v. Fl. E. Coast Ry. Co.,

416 F.2d 1169 (5th Cir. 1969) .................................................................................................13

Case 4:21-cv-01074-P Document 77 Filed 10/19/21 Page 3 of 21 PageID 1604
-iiSims v. City of Dallas,

No. CIV.A.3:95-CV-177-X, 1996 WL 722052 (N.D. Tex. Dec. 5, 1996)..............................15

Smith v. Bayer Corp.,

564 U.S. 299 (2011).................................................................................................................12

Tagore v. United States,

735 F.3d 324 (5th Cir. 2013) .............................................................................................2, 3, 7

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977).................................................................................................................2, 3

Turpen v. Missouri-Kansas-Texas R.R. Co.,

573 F. Supp. 820 (N.D. Tex. 1983), aff’d 736 F.2d 1022 (5th Cir. 1984).................................3

Virginian Ry. Co. v. Sys. Fed’n No. 40,

300 U.S. 515 (1937).................................................................................................................12

Weber v. Roadway Exp., Inc.,

199 F.3d 270 (5th Cir. 2000) .....................................................................................................2

Zipes v. Trans World Airline, Inc.,

455 U.S. 385 (1982).................................................................................................................15

STATUTES

42 U.S.C. § 12111............................................................................................................................2

45 U.S.C. § 152........................................................................................................................12. 13

49 U.S.C. § 44701..........................................................................................................................14

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INTRODUCTION

One of the central issues in this case is whether and how plaintiffs’ proposed alternative 

accommodations would impose an “undue hardship” on United Airlines (“United”). As 

demonstrated below, the various collective bargaining agreements (“CBAs”) and regulatory 

regimes that bind United – especially with respect to flight crew – are one of many factors that 

support the conclusion that implementing any of plaintiffs’ preferred accommodations would be a 

logistical and operational nightmare, as well as a significant financial burden. And while plaintiffs 

have suggested that they could just “waive” those requirements, the unions that represent the 

employees at issue have confirmed in writing that they will not agree to do so. See infra at 13. 

Hence, United cannot reconcile its collectively-bargained and regulatory obligations with 

plaintiffs’ demands for alternative accommodations.

BACKGROUND FACTS

The airline industry is one of the most heavily regulated and heavily unionized industries 

in the United States. See https://www.airlines.org/our-priorities/. As a result, when implementing 

any change in operations, United must – in addition to accounting for its own internal business 

needs and limitations – navigate a complex web of externally-imposed obligations, including both 

collective bargaining agreements and federal regulations. 

The vast majority of United’s customer-facing employees are unionized, including 

(1) pilots, (2) flight attendants, and (3) customer service representatives (“CSRs”), which include 

gate agents and other airport operations personnel.1 App. 1 ¶ 3, 445 ¶ 3, 1035 ¶ 5. Pilots are 

represented by the Air Line Pilots Association International (“ALPA”); flight attendants are 

 1 This brief focuses on customer-facing employees because, as discussed both in prior briefing and during the 

hearing, United is in the process of implementing new accommodations for non-customer facing employees, and 

plaintiffs appear to agree that those new accommodations are reasonable. 

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2

represented by the Association of Flight Attendants (“AFA”); and CSRs are represented by the 

International Association of Machinists (“IAM”). Id. United has a separate CBA with each union: 

the United Pilot Agreement (“UPA”), the Flight Attendant Agreement (“JCBA”), and the 

Passenger Service Agreement (“PSA”), respectively. See id. Ex. A-1, B-1, C-1. 

United is also subject to Federal Aviation Regulations (“FARs”) governing both the airline 

and its pilots. See 14 C.F.R. Parts 1-199. The FARs cover a wide range of topics, including 

preflight duties, duty periods and rest requirements, and flight operations. App. 1171 ¶ 2. In 

addition, various state wage and hour laws purport to require employers, including airlines, to pay 

for any form of required testing. Id. 2 ¶ 6, 446 ¶ 8.

ARGUMENT

I. Applicable Legal Principles.

As discussed at the evidentiary hearing, United can prevail on the merits by showing that 

its accommodation is reasonable or that the alternatives proposed by plaintiffs would impose an 

undue hardship. See, e.g., 29 C.F.R. § 1605.2(b)(2). Moreover, it is quite clear that, under Trans 

World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977), and its progeny, an employer may 

establish undue hardship by demonstrating that an alternative proposed accommodation implicates 

a “more than de minimis” burden by pointing to any one of several different factors, including 

increased operational costs, burdens on co-workers, impracticality, or decreased effectiveness. E.g. 

Tagore v. United States, 735 F.3d 324, 329-30 (5th Cir. 2013); Weber v. Roadway Exp., Inc., 199 

F.3d 270, 272-73 (5th Cir. 2000).2 Similar rules apply under the Americans with Disabilities Act 

(“ADA”). See 42 U.S.C. § 12111(10). 

 2 See also, e.g., Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 146 (5th Cir. 1982) (more than de minimis cost 

can be “imposition upon co-workers.”); Bruff v. N. Miss. Health Servs., Inc., 244 F.3d 495, 501 (5th Cir. 2001) 

(additional workload and travel for co-workers was more than de minimis burden on employer). 

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In addition, as in Hardison itself, an employer can show “more than de minimis” burdens 

from the proposed accommodation by pointing to external constraints, including legal or collective 

bargaining obligations. 432 U.S. at 79-81; accord 29 C.F.R. App. 1630.15(d) (under ADA, “[t]he 

terms of a collective bargaining agreement may be relevant to [the undue-hardship] 

determination”). Such obligations can be relevant in one of two different ways. First, if the 

proposed accommodation would require the employer to violate a CBA or legal obligation, that is 

necessarily an undue hardship. Hardison, 432 U.S. at 77, 80-81; Tagore, 735 F.3d at 329-330.

Second, even if the proposed accommodation would not violate a CBA or the law, it can 

still be an undue hardship if, as a result of complying with such obligations, the employer would 

incur more than de minimis burdens. See, e.g., Turpen v. Missouri-Kansas-Texas R.R. Co., 573 F. 

Supp. 820, 826 (N.D. Tex. 1983) (finding undue hardship where proposed accommodation would 

require employer to keep extensive records and complex billing procedures to ensure compliance 

with the CBA), aff’d 736 F.2d 1022 (5th Cir. 1984).3

II. Application to Plaintiffs’ Proposed Accommodations

As this case has progressed, plaintiffs have proposed an evolving set of various 

accommodations that, they claim, can be implemented at “little to no cost” to United.4 In the 

sections below, we review each of the plaintiffs’ current proposals and show how they (1) are 

either inconsistent with or would impose additional cost as a result of United’s CBAs and 

regulatory obligations, and (2) implicate other practical or operational concerns. 

 3 Creusere v. Bd. of Educ. of City Sch. Dist. of City of Cincinnati, 88 F. App’x 813, 819 (6th Cir. 2003) (where 

CBA would require payment of “premium overtime wage,” proposed accommodation of Sunday work constitutes 

undue hardship).

4 As an example of how plaintiffs’ proposals have changed, in their Complaint, they discuss mask-wearing as 

one of the alternatives. Compl. (ECF No. 1) at ¶ 119 and p. 30. At the evidentiary hearing, however, plaintiffs’ counsel 

expressly stated that masking is not one of the alternative accommodations that plaintiffs are demanding. Likewise, 

while they emphasized “symptom checks” at the hearing, there is no mention of that in the Complaint. 

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A. Testing at Home 

During the hearing, plaintiffs argued that, in lieu of vaccination, flight crew could conduct 

COVID screening tests on their “own time” and at their own expense (using test kits that they buy 

themselves). Notably, this proposal is absent from plaintiffs’ complaint and any of their briefing. 

Plaintiffs also proposed that – for individuals who have had COVID – they could submit their own 

antibody tests. There are multiple problems with any version of self-regulated, at-home testing.

1. As a threshold matter, plaintiffs’ proposal cannot be reconciled with CBA and FAR 

provisions regarding duty time and rest.5 Both pilots and flight attendants are required to have 

uninterrupted periods of rest between any periods when they perform work-related functions. See

App. Ex. A-1 §§ 6(V), (W); id. Ex. B-1 §§ 5-E-3, 5-F-3; 14 C.F.R. § 117.25(e). The required 

duration of these rest periods vary greatly depending on where an individual is flying from, what 

time the flight was, and various other factors. Id. Work-related duties, including even relatively 

minor interruptions, are often considered an interruption of rest. App. 3 ¶ 9, 447 ¶¶ 10, 11. Hence, 

any form of medical testing – even if supposedly on the employee’s “own” time – would, under 

the CBAs and FARs, count as duty time. See id.

As a result, if an off-duty testing program were put in place for these employees, United 

would be in the impossible position of either violating rest/duty rules or re-starting each 

employee’s rest period after each test. If United violated the rest/duty time provisions it would be 

subject to grievances by ALPA and AFA, as well as sanctions or fines from the FAA. See id. 3-4 

¶ 12, 446 ¶ 6, 1174 ¶ 13. And if United re-started the clock related to rest periods, it would cause 

serious operational problems. For example, if a flight attendant finished a trip at midnight, and 

 5 Many of these issues regarding the CBA rules and regulatory or state law obligations are hotly contested in 

other contexts, and United’s description of those obligations herein are without prejudice to any interpretation of such 

provisions or other defenses that United may assert in separate proceedings. 

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needed to report back at 10 AM for the next leg of the trip, it would be impossible to add testing 

to that schedule without running the risk of infringing on the minimum rest required under the 

JCBA. Id. 3 ¶ 9. In this same scenario, if United were to re-start the clock, the flight attendant 

would be unable to fly his or her 10 AM trip and would need to be replaced. The same is true for 

pilots. Id. 447 ¶ 10; 14 C.F.R. § 117.25(e).

Nor is it an answer to say that flight crew can test outside their rest period. That would 

require adding time onto existing duty periods. See App. Ex. A-1 § 6(R); id. Ex. B-1 § 5-E-2-a-

(4). This additional duty time will limit the amount of time that flight crews can fly planes because 

duty time is subject to various hourly limitations. See id. Ex. A-1 §§ 6(S), (T), (U); id. Ex. B-1 §§ 

5-B, 5-F. These time restrictions are particularly problematic on long-haul flights where the flight 

crew is often running up on its duty limits even under the best conditions. Id. 5 ¶ 17, 449 ¶ 21. 

Moreover, flight crew are not assigned traditional daily schedules, but rather work “trip 

pairings” that span multiple days and cities. Id. 6 ¶ 21, 447-48 ¶ 14. For example, a three-day trip 

pairing could consist of the following segments: Day 1: SFO to DEN, DEN to ORD; Day 2: ORD 

to DCA, DCA to ORD; Day 3: ORD to LAX, LAX to SFO. Id. 447-48 ¶ 14. Pilots and flight 

attendants would inevitably need to be tested in the middle of these multiday trips, which means 

testing could not be limited to plaintiffs’ “own time” in light of these multiday trips.

2. Under the CBAs, pilots and flight attendants are also entitled to receive a certain 

number of off-duty days. See id. Ex. A-1 § 6(Q); id. Ex. B-1 §§ 5-E-4, 5-E-5, 5-F-4, 5-F-5, 20-D5. Similar to the rest time problem, if a pilot or flight attendant had to test for COVID-19 on these 

days, that would constitute a job function, and so the day would not count as “off.” Id. 6 ¶ 22, 450 

¶ 28. This problem would be especially acute if, as plaintiffs suggested, they test every day. United 

would either have to provide alternative days off or it risks violating the CBAs. 

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3. Beyond the duty/rest problems, the CBAs would also require United to pay for time 

spent doing any form of at-home testing. In order to implement the limited pre-departure testing 

scheme that is currently in place, United had to negotiate new agreements that require pay for 

testing time. App. 4 ¶ 13. Per those agreements, flight attendants receive $15 for each additional 5 

minutes, up to a maximum of $135 for 45 minutes. Id. Likewise, United extended pilots’ duty days 

by thirty minutes for the testing. Id. 448 ¶ 16. Pilots are compensated at their usual rate for this 

additional duty time. Id. United would either need to apply these rules or negotiate new agreements 

with ALPA and AFA. Id. 4 ¶ 13, 450 ¶ 27.

4. Additionally, many state laws – including some laws specifically enacted to address 

the issue of COVID-19 testing – purport to require employers to pay for time spent testing or 

otherwise prohibit employers from passing along the cost of employer-required medical 

examinations, including COVID-19 testing. See id. 2 ¶ 6 (“In eight states where United has flight 

attendants based, those states have laws that could be interpreted as requiring the employer to pay 

for COVID-19 testing.”). Thus, in at least some jurisdictions, United would risk incurring 

substantial costs for COVID-19 testing.

5. In addition, United would, at least in some circumstances, be threatened with 

paying for the cost of the COVID-19 tests themselves, even if the employees initially acquired the 

tests on their own without United’s involvement. As Sasha Johnson discussed during her 

testimony, if a United employee uses his or her insurance to obtain a COVID-19 test, United 

ultimately pays a fee. In recent months, United has paid an average of $97 for each COVID-19 

test that an employee obtains using their health insurance benefits. See ECF No. 76-1, Exhibit 6 

(detailing United’s expenditures associated with COVID-19 testing; in August 2021 United paid 

$6,167,138 in insurance costs for COVID-19 tests). 

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6. Aside from all of the issues that arise from the application of the CBAs and the 

FAR, there are also various practical or logistical problems associated with at-home testing:

• Employees who are left to perform their own tests (without any medical professional 

assistance or oversight) may experience testing error, and United has no way to validate that 

a test was properly conducted. App. 451 ¶ 30.

• As a lawsuit filed yesterday shows, a number of employees in the putative class are opposed 

to testing. See Anderson v. United Airlines, No 21-1050, Dkt. 1, at 158 (M.D. Fla. Oct. 18, 

2021) (App. Ex. G). United cannot be expected to simply trust that employees will perform 

their own testing when they have stated that they see no value in such precautions.

• As with the current pre-departure testing regime, a manager would have to review each test 

result to ensure that it is at least facially accurate and does not reflect a positive test. That is 

not a function that can be performed by using the automated “fit to fly” protocol. App. 451

¶ 31. That sort of increased obligation on other employees is, standing alone, an undue 

hardship. Tagore, 735 F.3d at 329-330.

• As United’s expert indicated, there is substantial variation in the type and quality of test 

kits. ECF No. 76-1, Ex. 16 ¶ 36-37. There is no existing mechanism by which United can 

confirm that employees are using the proper type of test. And in light of supply chain issues, 

there is no guarantee that sufficient quantities of high quality tests will be available. See 

ECF No. 25, App. 117-118, ¶ 6.

B. Expansion of Pre-Departure Testing

Plaintiffs also raised the prospect of testing at the airport, pointing to the fact that United 

is already doing so for a limited number of flights. However, expanding airport programs would 

also implicate numerous CBA provisions and FARs. 

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First, pilots and flight crew would need to arrive at the airport at least 30 minutes early to 

undergo testing. Pilots’ time is already filled with numerous pre-flight duties with significant 

safety implications that are required by FAA regulations.6 The arrival time for the flight crew is 

set precisely so that they have enough time to complete all of these required pre-flight checks and 

other related duties. App. 5 ¶ 18, 448-49 ¶ 20. Those pre-flight arrival times do not have room to 

accommodate a COVID-19 testing program, even one that takes 15-20 minutes. Id. 

Second, early arrival for testing would have further complications for flight attendants. 

Pursuant to JCBA § 6(R)(4), United cannot change the home base or layover scheduled check-in 

times for flights on certain aircraft. Although the CBA allows for an extension of report times for 

certain aircraft, that is done at the pairing level, which means that everyone on the pairing must be 

given the same extension. Id. 4-5 ¶ 16. Thus, under the JCBA, United would not have the ability 

to extend report flight times for an individual flight attendant. Id.

Third, just as with at-home testing, United would be required under the CBAs to pay for 

the time spent for flight crews to be tested, under either existing contract language or under new 

terms demanded by ALPA and AFA. Id. 4 ¶ 13, 448 ¶ 17. As United’s witness Sasha Johnson 

testified, expanding the program to cover all accommodated flight crew would cost tens of 

thousands of dollars per month.

 6 See, e.g., 14 C.F.R. § 91.7 (pilot is “responsible for determining whether that aircraft is in condition for safe 

flight”); 14 C.F.R. § 91.103 (pilot shall “become familiar with all available information concerning that flight” 

including information relating to “weather reports and forecasts, fuel requirements, alternatives available if the 

planned flight cannot be completed, and any known traffic delays” and “runway lengths at airports of intended use” 

as well as takeoff and landing distance information); 14 C.F.R. § 121.315 (flight crew must follow FAA-approved 

cockpit check procedures that “include each item necessary for flight crewmembers to check for safety before starting 

engines [and] taking off . . . and in engine and systems emergencies”); 14 C.F.R. § 121.533(b) (the pilot in command 

is “jointly responsible” with the aircraft dispatcher for “preflight planning, delay, and dispatch release of a flight in 

compliance with” the regulations); 14 C.F.R. § 121.663 (the airline must prepare a dispatch release for each flight 

between specified points. The pilots, along with the dispatcher, “shall sign the release only if they both believe that 

the flight can be made with safety”); and 14 C.F.R. § 117.5 (As part of the dispatch or flight release, “each flight crew 

member must affirmatively state he or she is fit for duty prior to commencing flight”).

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Fourth, scheduling arrangements under both the UPA and the JCBA present further 

operational difficulties with testing requirements for certain unvaccinated employees. The JCBA 

and UPA allow pilots and flight attendants virtually unlimited flexibility in arranging their 

schedules: both sets of employees may trade trips however they so choose (with the small 

exception that pilots must trade for flights on the same type of aircraft they fly). Id. 5-6 ¶ 19, 449 

¶ 23. Because of this, there is a high amount of unpredictability as to where a given flight attendant 

or pilot will travel at any given date or time. Id. For example, a flight attendant scheduled to travel 

to Newark on a given day could end up, on little to no notice, traveling to Guam instead. Id. This 

makes expanding proctored testing (which is currently in place for those limited destinations that 

require testing) for those unvaccinated flight attendants and pilots nearly impossible from a 

logistical standpoint. Id. In order to implement such a testing program, United would need to 

implement a program that is available at every airport to which it flies. Id. 

Fifth, if a flight attendant or pilot tested positive at a remote location where United does 

not have additional flight attendants or pilots, United would likely have to cancel the flight that 

the flight attendant or pilot was scheduled to work. Id. 6 ¶ 20, 449 ¶ 24; see also id. 449-50 ¶ 25 

(“When pilots call out sick, especially on short notice or in high volumes, delays and cancellations 

inevitably increase because United must take the time to rearrange flight crew to adequately staff 

flights, or, if insufficient crew members are available, it must cancel flights.”). Moreover, 

“[b]ecause trip pairings span multiple days and cities across the nation, the impact of a delayed or 

cancelled flight is rarely limited to that one flight. Rather, a single delay or cancellation often 

causes multiple cascading delays and cancellations throughout United’s system.” Id. 450 ¶ 26. 

The only reason United’s current testing scheme works is because it covers a limited number of 

locations where a reserve crew is always available should someone test positive.

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C. Symptom Checks & Expanded Sick Leave

Plaintiffs have also proposed self-regulated “symptom checks,” whereby flight crew and 

other employees would determine, on their own and with no management oversight, whether they 

feel well enough to come to work (even if they are symptomatic). This would be tantamount to 

allowing employees to simply choose to work whenever they wish, leading to unexpected absences 

and, at least potentially, disruptions to operations. See id. 451-52 ¶¶ 34-35.

More importantly, plaintiffs’ proposal of a self-administered COVID-19 symptom check 

is not a reasonable accommodation because it cannot prevent the pre-symptomatic spread of 

COVID-19, which often occurs prior to a positive COVID-19 test. See ECF No. 76-1, Exhibit 16

¶ 24; Ex. 3 ¶¶ 30-32. As Dr. Crotty explained, “Testing identifies infections that have occurred 

and help limit the spread—limit the damage—after infection happens,” but does not prevent 

infection. Id. ¶ 23. Likewise, a symptom check only works once a person is feeling sick. However, 

prior to that, a flight crew member could have spread COVID-19 to coworkers or the public. By 

contrast, COVID-19 vaccines have been proven to reduce transmission of the disease regardless 

of when symptoms occur. See id. Ex. 3 ¶¶ 35-36. 

Accordingly, forcing United to adopt this alternative would require it to knowingly put its 

workforce at greater risk of COVID-19 infection, hospitalization and death by enabling infected 

individuals to work for days before they ever developed symptoms. See, e.g., Barrington v. United 

Airlines, Inc., No. 1:21-cv-02602-RMR-STV, ECF No. 23, at 9 (D. Colo. Oct. 14, 2021) (App. Ex. 

E) (explaining that United had presented “facts suggesting that its other employees may be placed 

at greater risk of contracting COVID-19 if they are required to come in contact with unvaccinated 

coworkers. This, alone, would appear to constitute an undue burden . . . .”).7

 7 This also implicates the burden on plaintiffs’ co-workers who need to shoulder added health and safety risks, 

as well as an additional emotional and psychological toll. See S. Lukasik Hr’g Testimony; B. Quigley Hr’g Testimony. 

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D. Reliance on Natural Immunity

Finally, plaintiffs have argued that United should accept evidence of past COVID-19 

infection, arguing that it should constitute proof of “immunity” equivalent to vaccination. Compl. 

¶ 27. This option depends on antibody testing, which implicates all of the CBA and FAR duty/rest 

time concerns outlined above, as well as the potential that United would have to pay for testing 

time and the tests themselves. Moreover, as Dr. Crotty explained, there is no commercially 

available test that can “quantify antibodies at a defined level that demonstrates protection in people 

with previous infection.” ECF No. 76-1, Exhibit 16 ¶¶ 36-37.8

Moreover, as Dr. Del Rio explained, not all individuals with prior COVID-19 generate 

antibodies. ECF No. 76-1, Exhibit 16, Ex. 3 ¶ 36. In other words, at least some people with a prior 

COVID-19 infection have little or no protection against reinfection (or hospitalization and death). 

In other words, forcing United to adopt this alternative requires it to rely on the hope that a 

previously-infected person has developed immunity, whereas vaccination presents a far more 

reliable approach to protecting United’s workforce and its business operations. See, e.g., Brener, 

671 F.2d at 146 (affirming the denial of Title VII religious accommodation claim where the 

proposed alternative “resulted in decreased efficiency, economic loss, and increased [safety] risk,” 

as well as “a detrimental impact on the [business’] function”). 

 It also could impose an operational toll on United’s business, including the likelihood of flight schedule disruptions 

and delays, substantial out-of-pocket costs, and the harder-to-quantify, but equally important, business losses from not 

having the levels of safety that United deems appropriate to appeal to its customers and promote employee satisfaction. 

See S. Johnson Hr’g Testimony.

8 Evidence also established that those plaintiffs who have a religious objection to the COVID-19 vaccine would 

also be unable to submit to antibody testing, since the unrebutted and uncontested evidence submitted by Dr. Crotty 

in this case is that both were developed and tested using stem cell lines procured from abortions. ECF No. 76-1, 

Exhibit 16 ¶ 38. Setting aside any implications for “sincerity,” this shows that even plaintiffs’ proposed alternative 

will be untenable for many (if not most) class members with Title VII religious accommodation claims. 

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III. Plaintiffs Cannot Waive Contractual or Regulatory Burdens on United.

At the evidentiary hearing, plaintiffs tacitly acknowledged that federal regulations, 

collectively-bargained limitations, and other constraints would apply to any sort of testing regime 

or other potential accommodation (such as expanded sick leave). Their proposed solution is that 

they could just “waive” those requirements, both with respect to the individual named plaintiffs as 

well as the entire putative class.

A. Rights of the Putative Class Members Cannot Be Waived

As a threshold matter, neither the named plaintiffs nor their counsel have any authority to 

“waive” collectively-bargained rights of the absent class members. As the Supreme Court has held, 

“[n]either a proposed class action nor a rejected class action may bind nonparties.” Smith v. Bayer 

Corp., 564 U.S. 299, 315 (2011). Binding non-parties requires “a class action approved under Rule 

23.” Id.; cf. Forby v. One Techs., LP, No. 3:16-CV-856-L, 2020 WL 4201604 (N.D. Tex. July 22, 

2020) (declining to make finding of waiver against absent class members “prior to class 

certification, as the class members are not yet parties to the litigation.”). And depending on the 

type of class certified, absent class members would have opt-out rights, which would further 

undermine any notion that the named plaintiffs can “waive” away their CBA rights. See 3 Newberg 

on Class Actions § 7:12 (5th ed.).

B. Collective Bargaining Agreements Cannot Be Waived

Neither the named plaintiffs nor their counsel can “waive” collective bargaining 

agreements. The Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq., provides that a carrier must 

“treat with” the certified representative of a craft or class of employees. 45 U.S.C. § 152 Ninth. 

This means that only the authorized union representative can agree to alter or waive provisions in 

existing agreements. Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 548 (1937) (holding 

that the RLA “imposes the affirmative duty to treat only with the true representative, and hence 

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13

the negative duty to treat with no other.”).9 Hence, when there is a certified union, “no member of 

the craft has any right or power to alter the specified working conditions. Neither the employee 

nor a group of employees may alter or waive prescribed provisions until the agreement is changed 

by processes under the Act.” Mungin v. Fl. E. Coast Ry. Co., 416 F.2d 1169, 1178 (5th Cir. 1969) 

(emphasis added). That is so even if an individual employee would prefer different terms than 

those provided in the CBA. In Order of R.R. Telegraphers v. Ry. Express Agency, the Supreme 

Court held that a carrier may not enter into agreements with individual employees that supersede 

a CBA unless the CBA specifically authorizes such individual agreements. 321 U.S. 342, 347 

(1944). 

In this case, as noted above, the authorized representatives of the employees at issue are 

the various unions that represent different groups of customer-facing employees. See App. 1 ¶ 3,

445 ¶ 3. None of those unions have indicated a willingness to “waive” any of the CBA provisions 

discussed above. Id. 7 ¶ 25, 446 ¶ 7. Indeed, ALPA has expressly stated that it will not “agree to 

waive [CBA] provisions as to accommodations that would adversely [] affect the contractual rights 

of other United pilots.” Id. 446 ¶ 7; id. Ex. B-2 (Letter from ALPA to D. Munro and R. Wiegand). 

AFA has said the same. Id. 7 ¶ 25; id. Ex. A-2 (Letter from AFA to D. Munro and R. Wiegand). 

Nor is there any provision in any of the extant CBAs that allows United, “either completely or 

within prescribed limits,” to reach agreements with individual employees. Telegraphers, 321 U.S. 

at 347; App. 7 ¶ 25, 446 ¶ 4. Accordingly, neither United nor the named plaintiffs can just “waive” 

the CBAs, either with respect to the six individual plaintiffs or with respect to the putative class as 

a whole. 

 9 The RLA also provides that a carrier may not change agreements “except in the manner prescribed in such 

agreements or in [the RLA].” 45 U.S.C. § 152 Seventh. There are criminal penalties for willful violations of this 

provision. 45 U.S.C. § 152 Tenth. 

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C. Federal and State Laws Cannot Be Waived

Plaintiffs and their counsel also cannot waive the application of the FARs and other 

relevant state and federal laws. Only the Administrator of the FAA may grant an exemption to 

FARs promoting safety and prescribing minimum safety standards, such as the minimum rest 

requirements implicated here. 49 U.S.C. § 44701(f).10 Along the same lines, “[e]mployees’ rights 

under state wage and hour laws are generally not subject to waiver.” 51B. C.J.S. Labor Relations 

§ 1353 (Oct. 2021 update). Similarly, even “[c]ontracts cannot waive employee rights under the 

FLSA” consistent with public policy.” Id.; see also Bodle v. TXL Mortg. Corp., 788 F.3d 159, 164 

(5th Cir. 2015).

IV. The Collective Bargaining Agreements Are Also Germane to United’s 

Accommodations and the Issue of Irreparable Harm.

In addition to the question of undue hardship, there are at least two other respects in which 

the CBAs are germane to the Court’s analysis.

A. Alternate CSR Positions 

As discussed at the hearing, United has offered a number of CSRs – including named 

Plaintiff D.J. Jonas – the option of moving to a non-customer facing position called “Agent on 

Demand.” See ECF 41 at 18. Plaintiffs claim that this accommodation is unreasonable because an 

individual can remain in the position for only 59 days. However, that limitation is imposed by the 

PSA (the CBA that governs CSRs), which creates an exception to seniority rules for temporary 

vacancies, allowing United to “create and fill vacancies of less than 60 days for any position within 

a classification with active employees for any reason.” See App. Ex. C-1 §§ 1(C)(3), 1(E).

 10 Cf. Baker v. F.A.A., 917 F.2d 318 (7th Cir. 1990) (upholding FAA denial of exemption to pilots who failed 

to satisfy certain required medical standards); Holmes v. Helms, 705 F.2d 343, 347 (9th Cir. 1983) (affirming FAA 

denial of exemption to pilots seeking exception to regulation prohibiting pilots over sixty from flying certain flights).

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15

In any event, the “Agent on Demand” program is not the only alternative available to the 

accommodated CSRs. Under the PSA, any CSR may transfer to another position represented by 

IAM “on a competitive basis,” meaning that they are eligible to apply and be selected for any of

those positions. Id. § 1(C)(3). Positions represented by IAM include ramp services employees and 

storekeepers, both of which are non-customer facing and have been offered the testing and masking 

accommodation announced on October 12, 2021. App. 1035-36 ¶ 9.11

B. Loss of Seniority as Alleged Irreparable Harm

The CBAs also contain terms that govern seniority, including how long employees 

continue to accrue seniority while on leave. App. 6-7 ¶ 23, 451 ¶ 32. At the hearing, plaintiffs tied 

their irreparable harm argument to the notion that employees would cease to accrue seniority while 

on personal leave. However, “class-based seniority relief for identifiable victims of illegal 

discrimination is a form of relief generally appropriate under [42 US.C. § 2000e-5(g)].” Zipes v. 

Trans World Airline, Inc., 455 U.S. 385, 386 (1982).12 Nothing in the CBAs would preclude 

restoration of seniority for any individual who was deemed to have lost such seniority as a result 

of a violation of law or contract. To the contrary, if an employee is terminated and then later 

returned to work by an arbitrator, the relief often includes restoration of seniority. App. Ex. F.

CONCLUSION

For the foregoing reasons, as well as those stated in previous briefing, plaintiffs’ motion 

for a preliminary injunction should be denied.

 11 United has openings in many of these positions. App. 1036 ¶ 10. In addition, if a CSR transferred to another 

position, the PSA would entitle the CSR to “retain and continue to accrue seniority in their former classification, 

location, and work status for 2 years” and the CSR could “return to their former basic classification within 2 years 

without a vacancy.” App. Ex. C-1 § 7(F). Thus, while “Agent on Demand” accommodations lasting longer than 59 

days may run afoul of the PSA, the PSA allows for other accommodations that the CSRs could pursue. 

12 See also, e.g., Moseley v. Goodyear, 612 F.2d 187, 192 (5th Cir. 1980); Claiborne v. Ill. Cent. R.R., 583 F.2d 

143, 149 (5th Cir. 1978); Sims v. City of Dallas, No. CIV.A.3:95-CV-177-X, 1996 WL 722052 at *2 (N.D. Tex. Dec. 

5, 1996).

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Dated: October 19, 2021 Respectfully submitted,

/s/ Jordan M. Matthews

Jordan M. Matthews

IL Bar No. 6300503

JONES DAY

77 W. Wacker Drive, Suite 3500

Chicago, Illinois 60601

Telephone: (312) 782-3939

Facsimile: (312) 782-8585

Email: jmatthews@jonesday.com

Donald J. Munro

D.C. Bar No. 453600

JONES DAY

51 Louisiana Avenue, NW

Washington, DC 20001

Telephone: (202) 879-3939

Facsimile: (202) 626-1700

Email: dmunro@jonesday.com

Alexander V. Maugeri

NY Bar No. 5062666

JONES DAY

250 Vesey Street

New York, NY 10281-1047

Telephone: (212) 326-3880

Facsimile: (212) 755-7306

Email: amaugeri@jonesday.com

Russell D. Cawyer

State Bar No. 00793482

KELLY HART & HALLMAN LLP

201 Main St., Ste. 2500

Fort Worth, Texas 76102

(817) 878-3562 (telephone)

(817) 335-2820 (facsimile)

Email: russell.cawyer@kellyhart.com

ATTORNEYS FOR DEFENDANT

UNITED AIRLINES, INC.

Case 4:21-cv-01074-P Document 77 Filed 10/19/21 Page 20 of 21 PageID 1621
CERTIFICATE OF SERVICE

On October 19, 2021, I electronically submitted the foregoing document with the clerk of 

court for the U.S. District Court, Northern District of Texas, using the electronic case filing system 

of the court. I hereby certify that I have served all counsel and/or pro se parties of record 

electronically or by another manner authorized by Federal Rule of Civil Procedure 5(b)(2).

/s/ Jordan M. Matthews

Jordan M. Matthews

Case 4:21-cv-01074-P Document 77 Filed 10/19/21 Page 21 of 21 PageID 1622