usabusdriver
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- Aug 12, 2007
- 205
- 113
e-o-a
I do not believe they can legally. In a SLI arbitration with AMR it would NOT be a negotiation as was the case when negotiating with the company for a JCBA. The company is the keeper of the seniority list, not the union, and the company would be a party to a SLI arbitration under M/B. See below for the argument that the system seniority list for LCC is Nicolau until changed.
If the argument for a two list SLI with AMR is proposed, since no new integrated list was implemented via a ratified CBA, the arbitrated list (Nicolau), in my opinion would hold more weight than the union's because of process and the fear of liability of a DFR lawsuit from the west.
I do not think that a "3 way" will occur. It is my belief that a SLI arbitration would produce a list via slotting and ratios as DAL/NWA and perhaps UAL/CAL. The problem then with a "3 way" is that the effects of the merger have not been equally proportioned to east / west seniority positions when compared to the pre / post merger. Because of this discrepancy, the existence of the Nicolau, as well as the company's claim in court that it has always been the Nicolau since they formally accepted it, I believe there is very little chance of a "3 way" AMR/east/west arbitration.
Yes, before the gang jumps in, the Nicolau was never implemented via a JCBA per the TA. But that does not in any way mean that it simply goes away. It is the current system SLI unless the union negotiates something different with the company.
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You must clarify the arguments in this fight. They seem to get blurred in all of the back and forth. They are separate and have been clearly defined even though USAPA has been hard at work obfuscating.
The first is whether or not the TA, and by default the product of the process defined in the TA for determining an integrated seniority list- the Nicolau award- as accepted by the company, is binding on USAPA.
Both judge Wake and Silver have unquestionably stated that the TA and Nicolau award are, as a matter of law, binding on USAPA as the successor to ALPA. The USAPA arguments about the Nic only binding the merger committees or that the Nic is not valid because of lack of implementation are nothing but misdirection.
The second question, now that we have determined that the Nicolau is intact as the accepted integrated system seniority list for LCC, is whether USAPA can negotiate for something other than the Nicolau. Yes they can. They can negotiate all aspects of the collective bargaining agreement. This is where a legitimate union purpose must be demonstrated as defined by Rakestraw. But it does not negate that the Nicolau award is binding on the union. If it were not binding then there would be no requirement to demonstrate a Legitimate Union Objective in bargaining for a SLI other than the Nicolau. And the Nicolau award would not be used as a measuring tool to evaluate an alternative proposal.
From judge Wake, "As explained by the Ninth Circuit, 'seniority rights are creations of the collective bargaining agreement, and so may be revised or abrogated by later negotiated changes in this agreement.' ... And a union 'may renegotiate seniority provisions of a collective bargaining agreement, even though the
resulting changes are essentially retroactive or affect different employees unequally.'"
From judge Wake, "The legal question is whether USAPA-or any union-violates its duty of fair representation by adopting and promoting a certain integrated seniority list for no reason other than to favor one group of employees at the expense of another. An established genre of fair representation decisions says yes."
From judge Silver, "Of course, in negotiating for a particular seniority regime, USAPA must not breach its duty of fair representation. Accordingly, if USAPA wishes to abandon the Nicolau Award and accept the consequences of this course of action, it is free to do so. By discarding the result of a valid arbitration and negotiating for a different seniority regime, USAPA is running the risk that it will be sued by the disadvantaged pilots when the new collective bargaining agreement is finalized. An impartial arbitrator’s decision regarding an appropriate method of seniority integration is powerful evidence of a fair result. Discarding the Nicolau Award places USAPA on dangerous ground."
