The following are all direct quotes from Judge Wake contained in Findings of Fact and Conclusions of Law and Order. The only added text are the citations.
---
There is no persuasive evidence that any East or West Pilot doubted the finality of the arbitration before it took place. Page 5, Lines 19-20.
-----
D. USAPA’s Objectives
USAPA’s sole objective in adopting and presenting its seniority proposal to the Airline was to benefit East Pilots at the expense of West Pilots, rather than to benefit the bargaining unit as a whole. Its constitution includes a commitment “to maintain uniform principles of seniority based on date of hire and perpetuation thereof, with reasonable conditions and restrictions to preserve each pilot’s un-merged career expectations.†USAPA officers have promised to “overturn†the Nicolau Award, and USAPA considers itself constitutionally bound never to implement it. Counsel for USAPA concedes that the union will never do so." Page 9, Lines 7-15
-----
"While neither side has refrained from taking dubious legal positions, USAPA has at various stages misstated law, facts, and procedural history, with frequent recourse to the “contradiction or confusion . . . produced by a medley of judicial phrases severed from their environment.†Guaranty Tr. Co. of N.Y. v. York, 326 U.S. 99, 106 (1945) (Frankfurter, J.). It is therefore necessary to cut a path through much labor law bramble on the way to granting relief." Pages 11 - 12, Lines 19 - 3
-----
A. Duty of Fair Representation
A jury has already found that USAPA breached its duty of fair representation with respect to the West Pilots. In short, USAPA violated the duty because it cast aside the result of an internal seniority arbitration solely to benefit East Pilots at the expense of West Pilots. USAPA failed to prove that any legitimate union objective motivated its acts. Page 12, Lines 7 - 12
-----
USAPA does not dispute that it succeeded to ALPA’s rights and obligations under the Transition Agreement. Nonetheless, USAPA contends that the Nicolau Award does not limit USAPA in any sense. USAPA relies heavily on the following stipulation: “The parties to the Nicolau Arbitration were stated to be ‘the US Airways Pilot Merger Representatives and the America West Pilot Merger Representatives.’†USAPA suggests that the Nicolau Award bound only the merger representatives, with the sole effect of precluding those representatives from asserting the existence of any disagreement between them regarding the Nicolau Award. The award, according to USAPA, was imposed on the East Pilots without their consent; ALPA, and by extension USAPA, remained free to order its affairs as though the award had never happened.
This argument offends common sense, the evidence, and fundamental principles of law. In the context of labor rights, it is both discordant and irrelevant. Generally, properly appointed representatives acting within the scope of their authority do bind those they represent. ALPA Merger Policy provides that the Merger Representatives “shall have complete and full authority to act for and on behalf of the flight deck crew members of their respective airlines for the purpose of concluding a single flight deck crew member seniority list, which shall not be subject to ratification.†[MP § 1.D.3.] This is not a dispute about the personal contractual obligations of East Pilots. The East Pilots took on the benefits and burdens of ALPA’s representative actions when they elected to be represented by that union. They gave their political consent to the actions of the merger representatives when they elected the East MEC that appointed them. Cf. Ackley v. W.
Conference of Teamsters, 958 F.2d 1463, 1478 (9th Cir. 1992) (explaining that unions exist and take action subject to union members’ voting rights); 45 U.S.C. § 152 Fourth (protecting a bargaining unit’s right to choose a union by majority vote). The East Pilots and ALPA were therefore bound, in the legislative sense of collective bargaining, by ALPA’s Transition Agreement commitment “by and through†the East MEC to follow ALPA Merger Policy in merging the seniority lists. See Humphrey v. Moore, 375 U.S. 335, 337-38, 347-48 (1964) (holding that union discharged its duty of fair representation by resolving a seniority dispute in accordance with negotiation and arbitration procedures of a CBA negotiated by a multi-local union and executed by each appropriate local union). Pages 14 - 15, Lines 3 - 8
-----
4. USAPA’s Seniority Objective
There is no merit to USAPA’s argument that the pursuit of date-of-hire seniority principles automatically legitimates USAPA’s actions because date-of-hire seniority is “the gold standard†of integration methods. [Doc. # 482, at 1902.] The jury was instructed that “n this case, a general preference for any particular seniority system other than the Nicolau Award, standing alone, is not a legitimate union objective.†USAPA’s argument is little more than a circular rationalization for its departure from the Nicolau Award to favor the majority. The Nicolau Arbitration occurred on the premise that insisting in advance on one seniority system or another could not reconcile the interests of the two pilot groups. The decision to follow a given seniority philosophy in this case could always be viewed as politically motivated by the interests of one pilot group or the other. Fairness could be found only in an agreed procedure, not in an agreed outcome. The Transition Agreement and the Nicolau Arbitration provided USAPA with a “final and binding†internal compromise. The union no longer lacked an appropriate resolution of these irreconcilable interests.
There is no authority for a magic rule that date-of-hire stops all inquiry on the duty of fair representation, in disregard of circumstances. The significance of date-of-hire seniority varies from one labor negotiation to the next. The bankrupt position of US Airways at the time of the merger, with almost as many furloughed pilots as America West had working, and with a significant furlough history, lent date-of-hire integration some hues of inequity it might not have had in another merger. The question before the arbitrator was not whether date-of-hire seniority, in the abstract, was a desirable thing, but whether it would provide a fair and equitable answer to the career expectations of the unmerged pilot groups. Page 24, Lines 1 - 24
-----
USAPA’s date-of-hire agenda is just a means of changing the arbitrated outcome for no purpose other than to favor the majority. Page 25, Lines 7 - 8.
-----
Practical problems also dog USAPA’s argument. Even if date-of-hire seniority were a per se legitimate union objective, what about qualified date-of-hire seniority?
USAPA’s own proposal includes conditions and restrictions professed to mitigate its date-of-hire aspect. At what point would such conditions and restrictions forfeit the date-of-hire immunity? The fact is, USAPA’s very decision to include conditions and restrictions is an acknowledgment that the date-of-hire method is sometimes a Procrustean fit. Page 25 - 26, Lines 18 - 3
-----
Mr. Bradford, who is beyond the subpoena power of this Court, missed an opportunity for persuasion when he declined to testify and be cross-examined at trial concerning motives and pretext in defense of the union he founded and governed. Page 27, Lines 7 - 10
-----
Before and after its election, USAPA has misled the majority about its power to improve their seniority prospects at the expense of the West Pilots. The will of the East Pilots springs from a mistaken understanding of the law and mismanaged expectations. If this is an impasse, it is one USAPA goaded on. Page 29, Lines 6 - 9
-----
Whether considered as a matter of fact or law, the asserted impasse does not absolve USAPA from liability. Page 29, Lines 23 - 24
-----
Similarly, USAPA will be forbidden from negotiating separate CBAs for the two pilot groups, as it argues the Transition Agreement and the Railway Labor Act would
have permitted it to do.19 Separate negotiations would invite highly probable wrongdoing, which would evade effective judicial remedy and burden the Plaintiffs with more ruinous litigation expense. The evidence shows not only USAPA’s wrongful motives but also willingness to conceal those motives and to bring about its seniority objectives by subterfuge. Prior to trial, USAPA negotiated only toward a single CBA for both pilot groups. It was only when the verdict was returned that USAPA announced to the Court its intent to seek separate agreements. [Doc. # 485, at 58, 78-81.] When asked at oral argument several weeks later who held the right to ratify any separate CBA, USAPA could provide no answer. USAPA should not have the opportunity to strike disparate contract terms for the two pilot groups, making up by indirection for the failure to meet East Pilot seniority ambitions. Page 47, Lines 1 - 13
