Judge Wake's order
As a general proposition, the seniority scheme under the Nicolau Award is not the only permissible way to resolve post-merger seniority issues within unions. For instance, there is nothing per se unacceptable about a seniority agreement based on the date of hire. Laturner, 501 F.2d at 599; Rakestraw v. United Airlines, Inc., 981 F.2d 1524, 1533 (7th Cir. 1992). USAPA refers repeatedly to these principles at their highest level of generality. The problem is, though the benefit of the Nicolau Award is surely what motivates the West Pilots, their legal objection to USAPA’s date-of-hire seniority policy is not directly substantive, but rather procedural. The alleged breach of the duty stems from the bad faith manner of USAPA’s determined
attempts to evade the Award. Irrespective of whether seniority rights “vest†in a proprietary sense, a union may not arbitrarily abridge those rights after a merger solely for the sake of political expediency. Barton Brands, Ltd. v. NLRB, 529 F.2d 793, 800 (7th Cir. 1976); see also Rakestraw, 981 F.2d at 1531.
The Ninth Circuit has not dealt directly with this fact situation, but the union’s position flies against the headwind of cases from other circuits. The D.C. Circuit has held that a union breaches its duty of fair representation when it “arbitrarily adopt and announce a bargaining policy on seniority merger motivated only by a desire to win the votes of a majority of the employees.†Truck Drivers & Helpers, Local Union 568 v. NLRB, 379 F.2d 137, 145 (D.C. Cir. 1967).
