What it comes down to is whether the Nicolau crap is an intra-ALPA exercise within the purview of the Executive Council, or a legally binding contract on its own.
If it was a legally binding contract, I would think that a court of law would be able to step right in and enforce that contract. Since it appears that the only "enforcer" in sight is ALPA itself, then it would seem that ALPA has the discretion to not enforce it. That decision would have ramifications of its own, such as DFR lawsuits, but that is an entirely separate case which actually WILL be heard in a court of law.
Too bad we don't have any real contract lawyers or labor lawyers here to answer the question of just what LEGAL status the Nicolau crap has. Not ALPA bylaws...LEGAL status. I'm just curious.
And if you don't have a law degree and passed a bar exam, I'm not interested in your answer because you don't know anything more about it than I do. And that's damn little.
Not only contract law, but claims sounding in agency and tort law as well.
There are two ways out of a contract: (i) a recognized defense to formation or enforcement; and (ii) what's called an efficient breach. Any contract is breachable. If the consequences of a breach are less threatening than the benefits of breaching, then that's an efficient breach. Contract defenses are typcially limited to fraud, duress, mistake, unconscionability...none of which apply to National. So for them it comes down to efficient breach.
The ALPA bylaws represent the terms of the agreement between AAA, AWA and National. There is no question an enforcable contract has been formed between AWA, AAA and National (offer, acceptance, consideration), so a formation defense is out of the question. That leaves an enforcement defense and the big three there are fraud, duress and unconscionability. All three are more or less self explanatory and it's not even worth debating whether any are available because they're not.
So, with an enforceable contract, the next question is whether all conditions have been satisified such that ALPA's duty to perform is triggered. The term at center stage today is where National promised to support and defend whatever award comes from Nicolau. AWA and AAA have performed their ends of the bargain by particpating in an arbitration. Therefore, ALPA's duty to perform has been triggered and a failure to perform puts them in breach (there are no defenses available as discussed above).
The second cause of action is as you mentioned a DFR which is really a hybrid claim that lies in both agency and tort law. ALPA is acting as an agent to two principals: AAA andd AWA. It therefore owes a duty to be impartial to both principals and to avoid conflicts of interest which might arise while performing for both parties. That is precisely why they outsource the substantive decision of a seniority integration to an arbitrator; it's without a doubt the best way they can presesrve and defend their impartiality. Tinkering with the substantive award is cleary a breach of their obligation and duty of impartiality. They'd be better off sending the award back to a whole new arbitrator than ever touching an arbitration. If they could plausibly claim there was a procedural defect which necessitated a do-over, then they could conceivably defend their decision to send the matter back to another arbitrator for a do-over. But the problem then is that the weight of the evidence suggests that there were no procedural defects. As I mentioned earlier, two ALPA neturals were on the panel. They said nothing. Furthermore, AAA tendered no objections ot the process and did not object at any time when Nic was in deliberations. Finally, national never said a darned thing either: not during the process, not during deliberations, and not even after the award was published. It was only after they marched on by a 400+ person angry mob did they raise a question about the process. Hmmm....that's suspect.
Finally, we can talk about a tortious interference with a contract. This in reality would mirror a plain vanilla contract claim but the difference would be the availability of punitive and parasitic damages. On the other hand, the meat and potatoes for the AWA pilots would really be the lost benefit of the contract. The major difficulty in a contract claim is proving damages such that a court can determine what dollar amount would give the plaintiff the benefit of the bargain. In this case, however, that would not be all that hard to calculate. Plus, contract claims allow for the award of attorney's fees whereas the tort claims do not. If AWA pilots would essentially be made whole by a receiving the full contract benefit thanks to a successful contract claim, then a DFR isn't really necessary. File the claim, but the claim for AWA pilots to hang their hat on would be a contract claim IMO - the damages are sufficient and the breach is so incredibly apparent.
There's one more defense to a contract that I just thought about: failure of a condition. But as we can see from above, the arbitration is complete thus triggering ALPA's duty to perform. So put an "X" on another defense.
