Stand by, Easties. Your Powerball ticket is about to be cancelled.
And trust me on this. There will be a damages trial!
<<<This will be tested in court - I doubt the LAA pilots will have much luck testing....but the west has a 9th circuit DFR that was completely overlooked by the process....and federal judges have peculiar notions about having their legal interpretations ignored.
QUESTION: If the 9th ruling was followed to the "T" and the process not perverted, and all 3 parties worked from the Nic, would the arbs still have produced a final product that did not include the NIC?
That's a question I think the 9th has to answer and maybe even the USSC.>>>
Let's take a look at this and see what might have to be done to overcome the award, as it is currently written...
[SIZE=14pt]There are at least two major hurdles to overcome in a challenge to the Arbitration Panel’s award in the US Airways / American Seniority list integration[/SIZE].
[SIZE=18pt]First:[/SIZE] The result of the pilot Seniority List Integration process was codified in the Memorandum of Understanding dated January 13, 2013, which later turned into the Merger Transition Agreement, MTA, and there after an RLA contract. This contract stated that all parties agreed to the seniority integration result and that there would be no ratification requirement. A dispute over the meaning of that active contract is a minor dispute and subject to the arbitration board, not the courts. So the first hurdle with be a major / minor dispute in the courts. The seniority integration process from the America West / US Airways merger was an ALPA internal procedure and the result of that process, the NIcolau award, were never implemented in a formed RLA contract. The 9th Circuit did not impose or direct the lower court to impose the NIcolau Award.
The June 2015 decision of the Ninth Circuit Court of Appeals did not do so, as the court of appeals acknowledged,
“ecause a good faith attempt to implement the Nicolau Award would have ultimately required a ratification vote by all the pilots, and we cannot know what the results of such a vote would have been, we can never be certain whether efforts to implement the Nicolau Award through a collective bargaining agreement with US Airways would have succeeded.” 791 F.3d at 991.18/ The court of appeals had earlier noted that ALPA failed in its efforts to resolve the dispute over the Nicolau Award and so “it is, at best, speculative that a single CBA incorporating the Nicolau Award would be ratified if presented to the union’s membership.” 606 F.3d at 1180.19/
The Railway Labor Act states that an arbitration award may be set aside for only three reasons:
[SIZE=10pt]439 U.S. 89 (1978)[/SIZE]
[SIZE=10pt]UNION PACIFIC RAILROAD CO.[/SIZE]
[SIZE=10pt]v.[/SIZE]
[SIZE=10pt]SHEEHAN.[/SIZE]
[SIZE=10pt]No. 78-344.[/SIZE]
[SIZE=10pt]Supreme Court of United States.[/SIZE]
[SIZE=10pt]Decided December 4, 1978.[/SIZE]
[SIZE=10pt]ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT[/SIZE]
…..Judicial review of Adjustment Board orders is limited to three specific grounds: (1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to conform, or confine, itself to matters within the scope of its jurisdiction; and (3) fraud or corruption. 45 U. S. C. § 153 First (q). Only upon one or more of these bases may a court set aside an order of the Adjustment Board. See Andrews v. Louisville & Nashville R. Co., 406 U. S., at 325; Locomotive Engineers v. Louisville & Nashville R. Co., 373 U. S. 33, 38 (1963)
[SIZE=10pt]….[/SIZE] The court then canvassed prior decisions concerning the Railway Labor Act, and recognized that these cases had established that the scope of judicial review of Adjustment Board decisions is "among the narrowest known to the law."
The Railway Labor Act. Section 153 First (q) unequivocally states that the "findings and order of the [Adjustment Board] shall be conclusive on the parties" and may be set aside only for the three reasons specified therein. We have time and again emphasized that this statutory language means just what it says. See, e. g., Gunther v. San Diego & A. E. R. Co., 382 U. S. 257, 263 (1965);
And
------------------------MOU language Section 10-------------------------------
10. a. A seniority integration process consistent with McCaskill-Bond shall begin as soon as possible after the Effective Date. If, on the date ninety (90) days following the Effective Date, direct negotiations have failed to result in a merged seniority list acceptable to the pilots at both airlines, a panel of three neutral arbitrators will be designated within fifteen (15) days to resolve the dispute, pursuant to the authority and requirements of McCaskill-Bond. That arbitration proceeding will commence no later than 60 days after the designation of the arbitrators, or as soon thereafter as practicable given the availability of the designated arbitrators, provided that it is understood that, in no event, shall the seniority integration arbitration proceeding commence prior to final approval of the JCBA pursuant to the deadlines and procedures in Paragraph 27 below.
c. The integrated seniority list resulting from the McCaskill-Bond process shall be final and binding on APA and USAPA (and/or the certified bargaining representative of the combined pilot group), the company(ies) and its(their) successors (if any), and all of the pilots of American/New American Airlines and US Airways.
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[SIZE=16pt]Second[/SIZE]: There is the intent and language of the McCaskill Bond amendment itself.
[SIZE=12pt]CONSOLIDATED APPROPRIATIONS ACT, 2008[/SIZE]
[SIZE=12pt]HR 2764[/SIZE]
[SIZE=10pt]S[/SIZE][SIZE=7pt]EC[/SIZE][SIZE=10pt]. 117. L[/SIZE][SIZE=7pt]ABOR [/SIZE][SIZE=10pt]I[/SIZE][SIZE=7pt]NTEGRATION[/SIZE][SIZE=10pt].[/SIZE]
[SIZE=10pt](a) L[/SIZE][SIZE=7pt]ABOR [/SIZE][SIZE=10pt]I[/SIZE][SIZE=7pt]NTEGRATION[/SIZE][SIZE=10pt].—With respect to any covered transaction involving two or more covered air carriers that results in the combination of crafts or classes that are subject to the Railway Labor Act(45 U.S.C. 151 et seq.), sections 3 and 13 of the labor protective provisions imposed by the Civil[/SIZE][SIZE=10pt] Aeronautics Board in the Allegheny-Mohawk merger (as published at 59 C.A.B. 45) shall apply to the integration of covered employees of the covered air carriers;[/SIZE]
[SIZE=10pt]CIVIL AERONAUTICS BOARD[/SIZE]
[SIZE=10pt]ALLEGHENY-MOHAWK LABOR PROTECTIVE PROVISIONS, MAY 1971[/SIZE]
[SIZE=10pt]59 C.A.B.45[/SIZE]
[SIZE=10pt]SECTIONS 3 AND 13[/SIZE]
[SIZE=10pt]SECTION 3.[/SIZE]
[SIZE=10pt]Insofar as the merger affects the seniority rights of the carriers employees, provisions shall be made for the integration of seniority lists in a fair and equitable manner, including, where applicable, agreement through collective bargaining between the carriers and the representatives of the employees affected. In the event of failure to agree, the dispute may be submitted by either party for adjustment in accordance with section 13.[/SIZE]
[SIZE=10pt]SECTION 13.[/SIZE]
[SIZE=10pt](a) In the event that any dispute or controversy (except as to matters arising under section 9) arises with respect to the protections provided herein which cannot be settle by the parties within 20 days after the controversy arises, it may be referred by any party to an arbitrator selected from a panel of seven names furnished by the National Mediation Board for consideration and determination…. The decision of the arbitrator shall be final and binding on the parties.[/SIZE]
[SIZE=10pt]Congress says that the arbitrators award is final and binding.. Courts interpret the laws made by Congress, they are not supposed to make their own.[/SIZE]
[SIZE=10pt](b.) The above condition shall not apply if the parties by mutual agreement determine that an alternative method for dispute settlement or an alternative procedure for selection of an arbitrator is appropriate in their particular dispute. No party shall be excused from complying with the above condition by reason of having suggested an alternative method or procedure unless and until that alternative method or procedure shall have been agreed to by all parties.[/SIZE]
[SIZE=10pt](Note: the US / AA process was an Allegheny Mohawk 13b process with a merger protocol agreement and a board of arbitration, rather than a single arbitrator[/SIZE][SIZE=10pt].) [/SIZE]
[SIZE=12pt]In Conclusion: Congress gave arbitrators, via the McCaskill Bond amendment, the authority to determine a seniority list in an airline merger[/SIZE][SIZE=10pt]. [/SIZE][SIZE=12pt]The 9th circuit had the opportunity to require the use of the Nicolau award and they specifically declined to do so. [/SIZE]
[SIZE=12pt]The court specifically acknowledged this:[/SIZE]
ecause a good faith attempt to implement the Nicolau Award would have ultimately required a ratification vote by all the pilots, and we cannot know what the results of such a vote would have been, we can never be certain whether efforts to implement the Nicolau Award through a collective bargaining agreement with US Airways would have succeeded.
And:
We thus remand this case with instructions to the district court to enter an order enjoining USAPA from participating in the McCaskill- Bond seniority integration proceedings, including any seniority-related discussions leading up to those proceedings, except to the extent that USAPA advocates the Nicolau Award.12 See Bernard, 873 F.2d at 217–18 (affirming preliminary injunction compelling a union to negotiate a new integrated seniority agreement in accordance with its own internal procedures). This remedy adequately accounts for our uncertainty over whether the Nicolau Award would have been implemented because it allows for the possibility that the SLI arbitration panel might not ultimately use the Nicolau Award in its final integration of the US Airways and American Airlines Pilots[SIZE=12pt].[/SIZE]
[SIZE=12pt]I do not think that any party will be able to overcome this award. East / West or APA, this award, even with an additional DFR trial, will stand. All parties were free to advocate for their respective positions and the result was not what any party particularly advocated for. The Arbitrators did what most arbitrators do…split the baby.[/SIZE]
[SIZE=12pt]Of course this doesn’t mean someone won’t try[/SIZE]
