Either some angry AOL'er or your lawyers are not explaining the ramifications of the 9th Circuits ruling to you or the fact they had this opinion published and the meaning of that. Not once does the 9th Circuit reference the Nicalou award as a seniority list but always a "seniority proposal". An argument made by both, USAPA's legal team in Wake's court, and America West pilot group's own merger counsel Jeff Freund in the ALPA vs ALPA lawsuit. Numerous times and clearly with intent the 9th Circuit refers to the Nicalou Award as an "internal union process", which again is the very argument Seham made all along. The court made it clear, they leave USAPA free to bargain in "good faith" pursuant to its Duty of Fair Representation and they make it clear by including East pilots in the statement that is a collective interest. Courts are very precise with the language they use and it is interesting and both clear, the intent of the 9th Circuit in reading the transcripts from Wake's court, to arguments of Seham, to the language used in the 9th Circuit ruling. In their opinion, they cited the very argument that Seham made in district court that ALPA's own agreements and "seniority proposal" created the potential for an indefinite veto and impasse. It isn't coincidence when Jurists are precise in that way, and it was a very gentle but not to subtle redressing of what happened in Wake's court.
As discussed numerous times, the legal standard if a DFR claim is made toward USAPA in the future will have nothing to do with the Nicalou Award, it will be the standard of "Good Faith" pursuant to a unions DFR responsibilities. USAPA will only have to show that its seniority integration methods fall within a wide range of reasonable behavior and the litmus will be the comparison to the vast body of evidence, mountains and mountains of it, showing that unions historically integrate similarly skilled individuals in the same craft by DOH. They could produce 1000s of examples if necessary including the other labor unions on the property, its own history in the Allegheny-Lake Central, Allegheny-Mohawk, USAir-PSA, and USAir-Piedmont mergers. They could show ALPA merger policy is vague and ever changing according to political whims of its most powerful members. I.e., UAL backing the language of preference toward Date of Hire in 1986 because they had 18 year DC8, 747, 727, and DC10 Flight Engineers coming into the 80's, to being behind the change in 1992 removing the language because of changed demographics, to being behind the change in 2010 adding longevity and category and status which now advantages its position in merging with CAL. There is such a body of longevity based integrations as the standard for 99.9% of labor unions, the history of the political shifts that has created a vague and changing ALPA policy, to the case precedent of DOH in DFR lawsuits.
The part referring to a "unquestionably Ripe DFR case" when a contract is ratified, is simply a statement of fact. By rendering this decision and ordering it published the 9th Circuit has just issued precedent that a claim can only be considered Ripe with a ratified agreement, that is all. In no way does it infer that any claim made by the Addington plaintiffs,or any others in the future would be legitimate, have merit, or offer success in any way. The standard though now with this issuance of their ruling and dismissing Wake's ruling is that a case must be made for a breach of "Good Faith" pursuant to a USAPA's DFR obligations, not that they didn't use the "internal ALPA generated seniority proposal". Again precise language, well defined in labor law and responsibilities of a union in its DFR obligations. There is a reason, Wake would not allow a true defense in defending against the plaintiffs claim of a breach in "good faith" or properly instructing the jury in its legal definition as it relates to DFR and likewise, a reason the 9th Circuit, though not obligated in reversing on ripeness, took the opportunity to clarify the legal standard under which USAPA's legal responsibilities lay.
