Here comes the Wrench in usapa's perfect plan. Bear care to comment
Captain John H. Prater
President
Air Line Pilots Association
1625 Massachusetts Avenue, N.W.
Washington, DC 20036
Captain John McIlvenna
Chairman
America West Master Executive Council
Air Line Pilots Association
432 N. 44th Street
Two Gateway, Suite 340
Phoenix, Arizona 85008
Captain Jack Stephan
Chairman
US Airways Master Executive Council
Air Line Pilots Association
One Thorn Run Center, Suite 400
1187 Thorn Run Extension
Coraopolis, Pennsylvania 15108
Re: Renegotiation of Seniority List
Gentlemen:
I write at the Association's request to comment on a letter ofthe law firm
advising USAPA, a group that seeks to displace ALPA as representative ofthe US
Airways pilots.
USAPA has announced that, if certified, it will seek to set aside the Nicolau
award in order to negotiate with US Airways a seniority list based on "date-of-hire with
reasonable conditions and restrictions to preserve each pilot's un-merged career
expectations." The USAPA law firm has asserted that "it would be very difficult for
USAPA opponents to undermine" such a new list as proposed by USAPA, basing their
conclusion on two cases involving ALPA. These cases are Air Line Pilots Association,
Int'l v. 0 'Neill, 499 U.S. 65 (1991) and Rakestraw v. United Airlines, Inc., 981 F.2d 1524
(7th Cir. 1992).
The USAPA law firm's opinion is based on an incorrect reading of these
cases, and a correct reading ofthe cases shows that there is no basis for them to express
such confidence in their opinion. First, their opinion stresses that in 0 'Neill, the Supreme
Court upheld the negotiated terms of a strike settlement as "reasonable." The USAPA
law firm does not mention, however, that the Court in 0 'Neill specifically drew a
distinction between the situation in that case and the situation where a union seeks to
overturn an agreed seniority system. In fact, the 0 'Neill decision stressed that the
agreement in question "provided the order and mechanism for the reintegration ofthe
returning strikers but did not permanently alter the seniority system." 0 'Neill, 499 U.S.
at 81 (emphasis added).
In the present situation, in contrast to 0 'Neill, the parties are already governed
by a collectively-bargained agreement that requires US Airways to accept the seniority
list that resulted from the ALPA seniority integration procedure, and, as USAPA has long
admitted, ifit becomes the representative it will inherit that agreement. IfUSAPA seeks
to "permanently alter the seniority system," it will obviously raise the very issue that the
Supreme Court distinguished in 0 'Neill.
The other case relied on by the USAPA law firm is the Seventh Circuit U.S.
Court ofAppeals decision in Rakestraw v. United Airlines. In that case, ALPA
successfully defended DFR claims brought by United replacement pilots after ALPA
secured United's agreement to restore the seniority ofthe Group of 570 striking pilots to
the seniority they would have had but for the strike. Rakestraw recognized that seniority
is an element of an agreement rather than a fixed right or commodity, but it did not
simply grant a free hand to unions to renegotiate seniority terms. Rather, the court held
that "a union may not juggle the seniority roster for no reason other than to advance one
group of employees over another," and the union may seek to negotiate an adjustment in
a seniority list only if the adjustment "rationally promote the aggregate welfare of
employees in the bargaining unit." 981 F.2d at 1535.
Rakestraw illustrates why the USAPA law firm incorrectly expresses
confidence in its views that "it would be very difficult" to defeat a renegotiated seniority
list. As the Rakestraw court observed, ALPA's objectives in that case were "to reduce
the advantages enjoyed by the replacements, and thus to strengthen the hand oforganized
labor in future conflicts with management" and "to restore the seniority system that
United had long used," thus recognizing that "stability is itself a legitimate objective."
981 F.2d at 1535. These objectives, noted the court, promoted the aggregate welfare of
the pilot group.
In the case of US Airways, however, USAPA seeks to trade one group of very
dissatisfied pilots for another. The pre-existing system is the one already provided by the
Transition Agreement and longstanding pre-existing collective bargaining agreements the
agreement by US Airways to implement the seniority list that resulted from ALPA
merger policy. USAPA does not seek to restore this system but to overturn it, and
thereby to "advance one group of employees over another." These objectives, in contrast
to those ofALPA in Rakestraw, cannot be described as "promoting the aggregate
welfare."
The Seventh Circuit has decided another case that also illustrates the difficulty
with the USAPA law firm's analysis and that the law firm did not mention. The case was
Air Wisconsin Pilots Protection Committee v. Sanderson, 909 F.2d 213 (7th Cir. 1990).
In that case, some Air Wisconsin pilots, who opposed a seniority award under ALPA
merger policy, sought to replace ALPA in order to attempt to commence negotiations
with the company to achieve a different result. The Seventh Circuit stated that
an attempt by a majority ofthe employees in a collective
bargaining unit to gang up against a minority of employees in
the fashion apparently envisaged by the plaintiffs could itself
be thought a violation ofthe duty of fair representation by the
union that the majority used as its tool.
909 F.2d at 217. This statement, too, demonstrates that there is no basis for the USAPA
law firm's confidence in its views.
There are two other aspects ofthe USAPA law firm's opinion that should be
addressed. First is their view that there would be no basis for judicial reliefbefore a new
list is actually implemented and that during the litigation the "status quo" would be the
new list. This view, too, ignores essential facts. Given the near-impossibility of figuring
out in hindsight who would have earned what under the original list versus a new list, a
court would have grounds to grant a preliminary injunction before a new list is
implemented. In this context, the court could look on the Nicolau list as the status quo to
remain in place until completion ofthe litigation.
The second remaining aspect ofthe law firm's letter is their opinion that
"employers are very open to re-adjusting seniority in a cost-neutral manner where it is
conducive to labor peace." This view, too, is not supported by Rakestraw. In that case,
as the court observed, restoring the seniority ofthe Group of570 did in fact promote
labor peace, but, even so, according to the court, management agreed to this restoration
only on the condition of obtaining from the pilot group $200 million in value. 981 F.2d
at 1529. In the US Airways situation, however, an effort to change the seniority list is
unlikely to be "conducive to labor peace," and both USAPA and company would be
probable targets oflitigation, so it is even less likely in this case than in Rakestraw that
such a change could be pursued in a manner that is "cost-neutral" to either the pilots or
the company.
Yours truly,
~a~.... Michael E. Abram
cc: Jonathan Cohen
Bruce York
Roland Wilder
Jeffrey Freund
