U-Turn Nation, by popular demand, WE’RE BAAACK! From the responses we received to our last two articles, it looks like we stirred up a hornet’s nest. One East subscriber took issue with AOL’s article. He wanted to respond, but didn’t want to use his name. His logic was that since the writer of the AOL article didn’t identify himself, why should he? Fair enough. We’ll accept that. We do know this is a real USAPA member and we have exchanged emails to verify that. We do not edit, but his response was long and some of the references made it hard to tell who was speaking. We reached a compromise with him. His reply will be split into two separate emails. There is no editing of his words, but by agreement, we added some itals, bolds and “quotes” so our readers can tell who is saying what. As with all U-Turns, any subscriber receiving this has our permission to reprint it.
Without comment, Part 1:
The recent declaration by AOL requires a response. I don’t want to get into a paragraph by paragraph debate on AOL’s declared victory. We will appeal this and I’ll give you some reasons why. This is what the Jury did and did not hear:
Judge Wake –Court Transcript May 12, 2009- “In this case, the union violated its duty if it adopted and submitted its seniority proposal for a reason or reasons that are not union objectives.”
What the Jury didn’t hear.
U.S. Supreme Court Humphrey v. Moore, 375 U.S. 335 (1964)
The power of the Joint Conference Committee over seniority gave it power over jobs. It was entitled under § 5 to integrate the seniority lists upon some rational basis, and its decision to integrate lists upon the basis of length of service at either company was neither unique nor arbitrary. On the contrary, it is a familiar and frequently equitable solution to the inevitably conflicting interests which arise in the wake of a merger or an absorption such as occurred here.
Judge Wake: “Even if the union's conduct could be rationally related to a legitimate union objective, the union could still be liable for violating its duty of fair representation if its actions are shown to be solely motivated by objectives that are not legitimate union objectives…However, a union may not make seniority decisions solely to benefit a stronger, more politically favored group over a minority group. In other words, the union may not pursue seniority-related bargaining objectives solely on the basis of political expediency. Preferential representation of the numerically larger number of voters is not in and of itself a legitimate union objective.”
What the Jury didn’t hear:
United States Court of Appeals, Seventh Circuit. - 981 F.2d 1524
Lee Rakestraw, et al., v. Air Line Pilots Association …..a ‘bad’ motive does not spoil a collective bargaining agreement that rationally serves the interests of workers as a whole, ALPA's "merger policy" could not compel TWA to agree to anything, and it did not seem likely, under the circumstances, to produce agreement within the union either. So ALPA experimented, emphasizing negotiations between representatives of the two groups rather than what Duffy feared would be premature intra-union litigation. Perhaps Duffy was wrong, but a mistake in judgment does not violate the duty of fair representation. Beyond these limits, workers generally may decide by majority vote where their interests lie.
A rational person could conclude that dovetailing seniority lists in a merger, treating service at either firm as of equal weight, without quotas or other preferences for either group of employees, serves the interests of labor as a whole.
The propriety of dovetailing, treating the two groups identically, follows directly. If the union's leaders took account of the fact that the workers at the larger firm preferred this outcome, so what? Majority rule is the norm. Equal treatment does not become forbidden because the majority prefers equality, even if formal equality bears more harshly on the minority. Cf. Employment Division v. Smith, 494U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).
Judge Wake: “However, in general, it is not a legitimate union objective merely to change the outcome of a conflict that was already resolved by a procedure agreed upon by the pilot representatives.”
What the Jury didn’t hear:
The 7th Circuit court in Rakestraw:…Yet seniority does not "belong" to an employee, any more than he "owns" the prospect of receiving a given wage next year or flying the St. Louis-Paris route rather than the leg from Minneapolis to Duluth. Seniority is a creation of collective bargaining agreements and equivalent contracts between unions and employers. When these expire, employers are free to use other criteria, such as merit, to assign jobs and decide who will be let go in hard times. Like wages and fringe benefits, seniority is a legitimate subject of discussion and compromise in collective bargaining. Schick v. NLRB, 409 F.2d 39, 398 (7th Cir.1969); Food Workers Local 7 v. Gold Star Sausage Co.,897F.2d 1002, 1026 (10th Cir.1990).
Judge Wake: “In this case, a general preference for any particular seniority system other than the Nicolau Award is not, standing alone, a legitimate union objective.”
Please re-read all the above citations from the various courts and see if that fits.
END, Part I