So much good material here!
As far as my background, I am a union activist who has created and participates in a number of Yahoogroups. My writings reach literally thousands of pilots per day and many informed people believe I was the single most important line employee factor in US Airways surviving. Why? I lead the grass roots effort to overcome the actions of the PIT/PHL Reps. during bankruptcy.
Speaks for itself.
USAPA has retained the law firm of Scham, Scham, Meltz, and Petersen, which is located in White Plains, NY.
The Sham & Sham law firm?
Actually, it's S
eham S
eham Meltz & Petersen.
This firm’s sole expertise is NMB representational elections . . . .
Actually, a look at the firm's
website shows that their NMB / labor law practice area is a rather small portion of what they do.
It is my understanding that in 1954 the Teamsters sued the NLRB over control of a seniority list because the Teamsters desired to re-write a seniority list outside contract negotiations. The NLRB disapproved this action, which resulted in the Teamsters complaint filed in court. The case was filed with the Second District Federal Court who ruled in favor of the union; however, the lower court’s decision was appealed and over turned by the Supreme Court. The Supreme Court ruled in favor of the NLRB when it issued Citation # 107 NLRB 837; NLRB v Teamsters, 225 F. 2d. 343. On page 19 the Supreme Court said, “In 1954, the NLRB ruled that seniority status in mergers must be resolved by agreement between the employer and the union, not by the union unilaterally."
As usual with legal issues, your understanding is completely wrong, as aquagreen explained. First, the Supreme Court had nothing to do with this case. It was an NLRB decision which was appealed to the Second Circuit Court of Appeals, and ended there. The Board (what you referred to as the "lower court") did find against the union, but the seniority provision portion of Board's decision was not overturned by the appeals court.
Your ignorance about basic civil procedure aside, your reading is also way off base concerning what the
Teamsters case stands for substantively. It does not, as you imply, stand for the proposition that a union cannot resolve seniority disputes and that the employer must somehow be involved in the process. Rather, the key to understanding the case is to realize that the issue there was that
the seniority list the union came up with was illegal under the NLRA in the first place. The case states that a CBA provision permitting a union to resolve senoirity disputes is not enforceable when it might result in a seniority list that violates the NLRA. Correct me if I am wrong, but I do not believe that is the issue right now with the LCC pilots -- there is no CBA provision in either the East or West contracts which says, "In the event of a seniority dispute, ALPA will determine the outcome." (Additionally,
Teamsters did not have to do with a merger of two companies' lists -- another distinction from the present matter.)
Even if there is such language, don't forget the key to undertanding the
Teamsters case: the list itself violated the NLRA. In
Teamsters, the seniority list was illegal under the NLRA because it discriminated on the basis of union membership. In that case, some employees were not union members when they began working for the employer, but joined the union later. The union based seniority for those people on when they joined the union, rather than on the beginning of their employment,. The Board, later affirmed the Second Circuit, found that violated the NLRA because it illegally encouraged union membership in violation of the NLRA and discriminated on the basis of union membership.
Now, where the
Teamsters case may be able to help East (and which USA320pilot seems to have missed) is that it does vaguely stand for the proposition that when a union is going to merge seniority lists, it should do so based on DOH. However, the case is really only on point when the union's choice is to merge lists on the basis of date of hire OR on some basis that violates the NLRA (or, by logical extension, the RLA, unless there is some RLA case out there stating something different). The case does NOT say that when the choice is date of hire OR some other method that does NOT violate the NLRA, date of hire should still be used. The NLRB and the courts got involved not because the union did not use DOH to determine seniority, but rather because it used an illegal method. In other words,
Teamsters appears to leave a union free to determine other, non-DOH bases for determining seniority, as long as the NLRA (or RLA) is not violated. Therefore, if East is going to hang its hat on this case, it would have to argue that the Nicolau award violated the RLA. I don't see how they will do that.
What is germane to our pilot group dispute and important to note is that the Nicolau Award is a private agreement among the parties, ALPA is a party to the Award, and ALPA is pledged to defend it. However, what is very important to understand is that if ALPA is no longer present than it cannot defend the Award!
That is what the courts are for. Even if ALPA disappears, the West pilots will still be an indentifiable group with standing to sue to enforce a valid and binding arbitration award.
And, seniority rights live in a CBA and not necessarily in an outside agreement. As you know, Section 22 of our current contracts is not closed and paragraph 22.B.1 of the East contract says, “Seniority of a pilot shall be based upon the length of service of an airline pilot in the employ of the Company or its predecessor airline companies whose operations have been taken by the Company.â€
Then why oh why did East agree to arbitrate the issue, if as you imply their seniority was already guaranteed to be DOH in a CBA?
Once USAPA takes control over the combined pilot group there will be a new seniority integration negotiation.
I wouldn't hold my breath. But a lawyer has apparently found a big group of relatively well-paid people being guided by anger and emotion, ready to believe anything they are told, and sees a way to keep the legal fees rolling in. You are truly a lawyer's dream client.
BTW, whatever happened to that DC law firm you told us East had retained to resolve this issue?