Here's what the Panel has to say:
Determination of the Merits
Based on the entire record and arguments of the parties, the Board finds that APA has the discretion to designate a West Pilots Merger Committee to participate in the seniority Integration List (SLI) process, and that it should do so.
Of course, USAPA wishes the issue to center on the West Pilots “right” to be part of the SLI process because it believes that the West Pilots do not have such an independent right. This is exactly what the court said in Addington III; that only the certified and exclusive bargaining representative has the right to appoint Merger Committees to participate in the SLI process.
Based on the court’s decision in Addington III, one could argue that the West Pilots do not have an independent right to take part in the SLI process. The Preliminary Arbitration Board takes no position with respect to this particular matter, as it is currently being appealed to the 9th Circuit Court of Appeals.
What is clear from Addington III, however, is that the certified representative of all bargaining unit employees is vested with the authority to control the SLI process and to designate the participants in the SLI process.
At the time of the Addington III decision, USAPA was the designated representative of all Company (US Airways) bargaining unit members, it should be noted. In this role, USAPA did not wish to appoint a West Pilots Merger Committee to participate in the SLI process, insisting that control over who is involved in SLI negotiations is reserved exclusively for the certified bargaining unit representative.
Since APA became certified by the NMB as bargaining unit representative for the single carrier, it now has the inherent discretion to determine whom it wishes to participate in the SLI process. Following USAPA’s decertification, it is no longer the bargaining unit representative of any Company employees.
While the Board makes no finding as to the legal status of USAPA and its right to independently participate in the SLI process as the pre-merger representative of US Airways Pilots, the Board notes that USAPA owes no duty of fair representation to any employee group.
The Board dismisses USAPA’s argument that it - as the pre-merger representative of all US Airways pilots – has the full authority to represent all former US Airways pilots and has the sole discretion to allow or not a West Pilots Merger Committee to participate in the SLI process. This argument is unconvincing and runs contrary to the NMB’s determination that APA is the representative of all Company pilots (both US Airways and American Airlines).
As the sole and exclusive bargaining representative of all Company pilots, only APA has the authority to choose which merger committees may participate in the SLI process. This comports with the exclusive representation concept; that is, multiple unions cannot represent the same bargaining unit members. It is simply not possible for USAPA to represent all US Airways Pilots when those same employees are currently represented by APA.
USAPA, the Board finds, has neither obligations nor responsibilities to any bargaining unit members, including even the East Pilot seniority list grouping. What is clear, though, is that USAPA does not represent the West Pilot seniority list grouping and does not have a duty of fair representation to that group of employees.
Moreover, USAPA does not have the authority to prevent the West Pilots from participating in the SLI process at the invitation of APA, the sole and exclusive bargaining unit representative.
The Board is satisfied that APA is permitted to designate a West Pilots Merger Committee to take part in the SLI process. As the sole representative of all Company pilots, APA has the authority to appoint merger committees to represent the interests of pilots in the SLI process. Not only does APA have the authority to appoint a West Pilots Merger Committee, the Board believes that doing so is appropriate and warranted in the instant case.
The Board finds that APA’s designation of a separate West Pilots Merger Committee is consistent with its duty of fair representation to all pilot employees and is “fair and equitable” as required under McCaskill Bond. APA’s duty of fair representation obligation makes it accountable to its entire membership, including minority interests such as the West Pilots.
In this case, APA has determined that the interests of all pilot seniority list groups should be represented in the SLI negotiations. The Board notes that there are three such groups of pilots within the newly merged Company - East Pilots, West Pilots, and legacy American Pilots. Each pilot group is on a separate seniority list and, therefore, has a distinct interest regarding the integration of those seniority lists.
By including an American Airlines PSIC Merger Committee, a USAPA Merger Committee and a West Pilots Merger Committee, APA is trying to establish a full and fair process whereby all three pilot groups have their say in the SLI process.
The Board believes that APA’s comprehensive efforts to include all pilot groups in the SLI process meet its duty of fair representation obligations. Appointing a West Pilots Merger Committee will ensure that the interests of all pilots will be properly represented during the SLI negotiations. There is no evidence that such a process is biased in favor of one single pilot group over any other.
Given the history of intransigence and hostility between USAPA and the West Pilots, it is far from clear that USAPA could or would adequately represent the interests of the West pilots. The fact that USAPA's very constitution contains a provision stating that only date of hire principles is acceptable in any SLI process is simply one of several considerations supporting this conclusion.
Designating separate merger committees for USAPA (East Pilots) and the West Pilots is not only reasonable, but is also desirable to ensure that both pilot groups have their interests properly represented in the SLI negotiations. The Board sees no convincing basis on which to conclude that the designation of a West Pilots Merger Committee would prejudice or discriminate against the East Pilots, as USAPA claims.
To the contrary, designating a West Pilots Merger Committee merely means that West Pilots would have the same opportunity to promote their case as the East Pilots. Allowing a West Pilots Merger Committee to participate in the seniority integration process would ensure that the distinct minority interests of the West Pilots will be properly represented.
For all the foregoing reasons, the Board concludes that APA’s designation of a West Pilots Merger Committee is consistent with the Protocol and MOU; is consistent with the MacKaskill-Bond requirement that the SLI process be “fair and equitable;” is a proper and reasonable exercise of its discretion; and is fully consistent with APA’s duty of fair representation to all Company pilots. Indeed, in this particular case, the Board concludes that “fairness and equity” demand the appointment of a West Pilot Merger Committee to participate in the SLI process.
The Board notes that pursuant to Paragraph 8( b ) of the Protocol Agreement, “[T]he Preliminary Arbitration Board shall issue an order granting or denying any such requests that APA designate the requested Committee…The order shall be final and binding on APA and USAPA, American and US Airways…and all of the pilots of American and US Airways.”
ORDER
The Board orders APA to designate the West Pilots Merger Committee as
a full participant in the seniority integration process.
___________________________________ 1/9/15______________ Date
Joshua M. Javits, Chair
