hp_fa,
I believe that you transposed the argument in the above quote.
If the Nicolau award had been memorialized in a CBA then the plaintiffs would have had a much easier or guaranteed DFR action, or conversely that USAPA would have a much harder or impossible task in defending a DFR action.
The argument in the Addington case was that since there had not been a ratified CBA containing the Nicolau award it was just a proposal and could be modified to comply with the new representatives C&BLs.
I'm trying to wrap my brain around what you are saying and I may need more morning coffee to do so.
🙂
What I was, and still am, trying to say is that had a single CBA been allowed to proceed to an actual vote by East & West and been voted down that the plaintiffs would have had a much harder time even getting past the initial pleading stage of any DFR action. However, the failure of either the East MEC or the BPR to negotiate any CBA with the Company containing Nicolau and to present a vote to membership of any CBA containing Nicolau was (in my view) instrumental in not only getting past the initial pleading stage of the Addington lawsuit, but also instrumental in it getting through the trial stage with a plaintiffs' verdict.
I also continue to fail to accept any premise that the Nicolau award was merely a "proposal". Once any award was made under ALPA merger policy, and not overturned by ALPA as being inconsistent with its merger policy, than that award became binding and not merely a "proposal".
The jury never heard actual evidence of the costs incurred by the two sides to arrive at Nicolau. I have unofficially heard that the Nicolau expenditures were approximately $2.5 million. Whether or not that number is correct it cannot be disputed that the monetary cost of simply arriving at the award was significant. So the question arises why would the parties expend anything like that amount of money to arrive at simply a "proposal"?
I will admit that the one thing that did cause me concern about the award was the USAPA's argument that the parties bound by the TA were solely the merger committee representatives. From a broader and wider overview that did not seem to make sense, specifically that the pilots of the respective airlines were not bound to the decision reached by their respective merger committee representatives, the fact remained that the documentation seemed to indicate that the parties bound by the award were the merger committee representatives. The Court dealt with that issue as a matter-of-law, but the chance that the Nicolau award could be found fatally flawed due to that language did concern me. (I wonder if that language will be changed in the future to prevent that issue from even arising.)
One thing I did think I heard in court and did concern me going forward is that USAPA, via their constitution and by-laws, does not allow their merger committee to agree or bind their association to anything, only the BPR can do that. As such, if true, it causes me to wonder if there is any reason why the Company may choose to negotiate with any committee that doesn't have the power to agree to anything. If only the BPR has that power couldn't and shouldn't the Company insist on only negotiating with the BPR since any other negotiations would be wasting their time since the party they would be negotiating with cannot agree to anything?
Anyway, I am going to drink some more coffee
🙂 and I may revisit your full question later.
