I believe this was generated in response to Praeters letter
August 20, 2007
Interim President
US Airline Pilots Association
McMurray, PA 15317
Re: Seniority Integration Issues
Dear :
You have asked us to provide our legal opinion concerning whether Arbitrator Nicolau’s seniority integration arbitration award could be overturned or otherwise modified via litigation or subsequent negotiation. Federal case law supports the conclusion that any effort to overturn the Nicolau award via litigation would be fruitless. By contrast, we believe that a successor union would be free to negotiate with US Airways concerning the terms of any seniority integration.
Litigation
With respect to the litigation strategy, your inquiry is prompted by AWA MEC Vice Chairman Ray Burkett’s published assertion that: “The federal courts are extremely reluctant to even hear arbitrated cases much less interfere [sic] or overturn them.†We agree with Mr. Burkett’s assessment.
The Supreme Court has held that the grounds are very narrow for vacating an arbitration award under federal labor law. United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987). Although the Nicolau award was rendered pursuant to ALPA’s internal merger policy, we believe that any reviewing court will be mindful of the standard of review applied to Railway Labor Act arbitration cases, which has been characterized as “among the narrowest known to the law.†Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 91 (1978).
We have reviewed a copy of the complaint filed on behalf of the US Airways MEC in the Superior Court of the District of Columbia. This litigation has virtually no chance of success.
Negotiations
The general rule is that seniority is a creature of contract, much like any other term or condition of employment:
Once a seniority position is in place, many employees come to think of their position in the pecking order as a form of property. … Yet seniority does not “belong†to an employee, any more than he “owns†the prospect of receiving a given wage next year or flying the St. Louis – Paris route rather than the leg from Minneapolis to Duluth. … Like wages and fringe benefits, seniority is a legitimate subject of discussion and compromise in collective bargaining. … “Forever†in labor relations means “until the next collective bargaining agreement.â€
Rakestraw v. United Airlines, Inc., 981 F.2d 1524, 1535 (7th Cir. 1992)(citations omitted).
Federal courts evaluate a union’s seniority-related bargaining objectives under the duty of fair representation (DFR) standard. It is notoriously difficult for plaintiffs to prevail in DFR litigation. The Supreme Court has held that the DFR standard requires the courts to be “highly deferential†to a labor union’s determinations. The final product of a bargaining process may constitute evidence of a DFR violation “only if it can be fairly characterized as so far outside a ‘wide range of reasonableness’ that it is wholly ‘irrational’ or ‘arbitrary.’†ALPA v. O’Neill, 499 U.S. 65, 78 (1991). In the O’Neill case, for example, the Supreme Court held that ALPA committed no DFR violation even if, in retrospect, the reinstatement agreement negotiated on behalf of striking Continental pilots left them in a worse position than if ALPA had simply surrendered and voluntarily terminated the strike. Id. at 79.
The Rakestraw decision referenced above is particularly instructive with respect to the application of DFR principles to seniority because it addresses both the impermanency of determinations related to contractual seniority as well as the right of a democratic majority to insist on dovetailing.
The Rakestraw decision actually consolidated disputes at two different carriers: the first involving the TWA/Ozark merger and the second the modification of a “permanent†seniority agreement between UAL and ALPA in the aftermath of the disastrous strike of 1985.
In the TWA case, Ozark pilots alleged that ALPA had caved in to the TWA pilots’ threat to secede from ALPA by collaborating in the implementation of a date of hire seniority integration instead of giving greater consideration to Ozark’s pre-merger status as the more dynamic, growing carrier. The court, however, found nothing wrong with ALPA’s acquiescence to the majority’s preference for a date of hire integration:
A rational person could conclude that dovetailing seniority lists in a merger … serves the interests of labor as a whole. … The propriety of dovetailing, treating the two groups identically, follows directly. If the union’s leaders took account of the fact that workers at the larger firm preferred this outcome, so what? Majority rule is the norm. Equal treatment does not become forbidden because the majority prefers equality, even if formal equality bears more harshly on the minority.
981 F.2d at 1533.
The UAL case concerned ALPA’s efforts to reverse its post-strike agreement that allocated a higher relative seniority to a group of scabs (the Group of 539) than to pilot trainees (the Group of 570) who had honored the picket line. The agreement was intended to be permanent, with ALPA expressly promising:
it will never seek to challenge [United’s] action … in court or before an arbitrator, nor will it seek to raise the issue of the “Group of 570†relative seniority position as part of any future negotiations … regarding any subject whatsoever.
Id. at 1528-29. When ALPA subsequently succeeded in negotiating a reversal of the two groups’ relative seniority positions, the district court found that ALPA had committed a DFR violation. The Seventh Circuit summed up the district court’s rationale in the following terms:
In other words, once union and management settle a dispute about seniority, the union’s duty of fair representation prevents reopening the issue – for the only outcome is to prefer one group of employees over another in a zero-sum game.
Id. at 1529. Nevertheless, the Seventh Circuit Court of Appeals reversed the district court’s decision.
The Seventh Circuit acknowledged that ALPA “detested†the scab pilots and “wanted revenge.†This hostility, however, did not invalidate the rational objective of addressing the harm suffered by the trainees who had been loyal to ALPA; much like the TWA pilots’ wielding of its majoritarian power did not detract from the legitimate goal of dovetailing as a means of serving “the interests of labor as a whole.â€
As to ALPA’s commitment to the permanency of the pre-existing seniority arrangement, the Seventh Circuit stated:
“Forever†in labor relations means “until the next collective bargaining agreement.†Excepting vested rights, a promise lasts only until renegotiation or the expiration of the agreement. Litton Financial Printing Division v. NLRB, 115 L. Ed. 2d 177, 111 S. Ct. 2215, 2226 (1991).
Id. at 1536.
Individual employees are represented in negotiations through their collective bargaining representative and are, therefore, not party to the collective bargaining agreement. By contrast, union members are considered to have a contractual relationship with their union pursuant to the union’s governing documents.
ALPA’s Merger and Fragmentation Policy provides that a seniority integration award “shall be defended by ALPA†and that “ALPA will use all reasonable means at its disposal to compel the company to accept and implement the merged seniority list.†ALPA Administrative Manual, § 45, Part I, §§ H.5.b and I.1. Consequently, ALPA may have a contractual obligation to its members to implement the Nicolau award. See Olsonoski v. ALPA, 1994 U.S. Dist. LEXIS 8239 (N.D. Cal. 1994)(“ALPA must comply with its merger as a matter of law and as a matter of contract between ALPA and its members.â€).
A successor union, which codified in its own constitution a commitment to the rational goal of date of hire seniority integration, would not be constrained by the dictates of ALPA’s Merger and Fragmentation Policy.
Please advise us if you have any question concerning the issues discussed above.
Sincerely,
