I’ve read (twice) the Order issued by Silver yesterday and I must say I am very impressed by her thorough grasp of the finer details of this case. We all know she has an overloaded docket and yet she still managed to be fully acquainted with the legal filings in Wake’s courtroom, the appeal to the 9[sup]th[/sup], along with all of the documents filed for the DJ. And having reviewed the legal questions at hand she has these opinions regarding the tapestry of viewpoints that were setting before her:
This is a hard case. (pg 1)
In the end, the Court cannot provide as much guidance as it had hoped it could.
Pursuant to the Ninth Circuit’s decision, any claim for breach of the duty of fair
representation will not be ripe until a collective bargaining agreement is finalized.
Message to the Company:
As for US Airways, it must negotiate with USAPA and it need not insist on any particular seniority regime. But US Airways must evaluate any proposal by USAPA with some care to ensure that it is reasonable and supported by a legitimate union purpose. (pg 1-2)
the “decertification of ALPA and the certification of USAPA did not change the binding
nature of the Transition Agreement.” (pg 6)
But being “bound” by the Transition Agreement has very little meaning in the context
of the present case. It is undisputed that the Transition Agreement can be modified at any
time “by written agreement of [USAPA] and the [US Airways].” (pg 7)
And a union “may renegotiate seniority provisions of a collective bargaining agreement, even though the resulting changes are essentially retroactive or affect different employees unequally.” (Pg 7)
This conclusion places US Airways in a difficult position. (Pg 8)
Thus, the Court cannot grant US Airways prospective immunity from any legal action by the West Pilots. But based on the representation at oral argument that the seniority list is unlike other matters addressed in collective bargaining, it is unlikely the West Pilots could successfully allege claims against US Airways merely for not insisting that USAPA continue to advocate for the Nicolau Award. (Pg 8)
Message to USAPA:
the Court … (“USAPA&rdquo😉 is free to pursue any seniority position it wishes during the collective bargaining negotiations. But with that freedom comes risk because the West Pilot Defendants1 may have viable legal claims in the future should the collective bargaining agreement contain a seniority provision harmful to a subsection of the union. (pg 1)
When USAPA became the pilots’ new collective bargaining representative, it
succeeded “to the status of the former representative without alteration in the contract terms.” (Pg 6)
Thus, just as ALPA would have been bound by the Transition Agreement had it remained the pilots’ representative, USAPA is bound by the Transition Agreement. (Pg 6)
Of course, in negotiating for a particular seniority regime, USAPA must not breach
its duty of fair representation. Accordingly, if USAPA wishes to abandon the Nicolau Award and accept the consequences of this course of action, it is free to do so. By discarding the result of a valid arbitration and negotiating for a different seniority regime, USAPA is running the risk that it will be sued by the disadvantaged pilots when the new collective bargaining agreement is finalized. An impartial arbitrator’s decision regarding an appropriate method of seniority integration is powerful evidence of a fair result. Discarding the Nicolau Award places USAPA on dangerous ground.
and in favor of US Airline Pilots Association on Count II of the complaint stating US Airline Pilots Association’s seniority proposal does not breach its duty of fair representation provided it is supported by a legitimate union purpose. (Pg 9)
Message to West Pilots
it is not possible to determine the viability of any claim for breach of the duty of fair representation until a particular seniority regime is ratified. (Pg 8)
Thus, the best “declaratory judgment” the Court can offer is that USAPA’s seniority proposal does not automatically breach its duty of fair representation. (Pg 8)
CG’s summary of the Order:
Silver wishes she could have done more to provide an actual resolution to the seniority dispute, but she was compelled to abide by the ruling of the 9[sup]th[/sup] which defined unquestionable ripeness as a ratified CBA. Absent such a CBA the court is without jurisdiction to determine if a Non-NIC seniority regime would violate USAPA’s DFR.
USAPA is free to bargain for any seniority regime during CBA negotiations it may choose. However, they do so at the substantial risk should a future west DFR challenge be made and if it can be proven that a legitimate union objective was not pursued in abrogating an arbitrated list. Without any further guidance from the court, USAPA is left on its own if to determine a course of action that will not expose them or their constituents to the risks already identified to them by the courts.
US Airways was not granted immunity and they are not assured that in pursuing a CBA with USAPA that collusion charges cannot be brought against them should they accept a Non-NIC seniority regime for S22. It seems the court, while stating that a collusion charge may be an unlikely win for the West pilots, was unable to provide a legal course of action that would prevent them from being harmed by engaging USAPA in CBA negotiations. The court (really the 9[sup]th[/sup]) sets the Company up in the role as the sole pre-ratification judge of whether USAPA’s actions are based upon a legitimate union objective. This is clearly the last place Management wants to be as they have maintained strict neutrality towards seniority integration.
So, while the court may have done all she could, the result of this order places the Company at even greater risk because they would have to abandon their neutrality position and thus would actually be put in the position of “negotiating” with USAPA for a list that they believe would pass the federal test of being a legitimate union objective. So, USAPA might put forth a straight DOH list and then the Company would have to say, “we don’t believe that would pass a DFR challenge so no we cannot accept that. Then USAPA comes back with fences for PHX and the Company has to again determine if those fences on a DOH list are a legitimate union objective or not. And so it would go.
Conclusion – this isn’t over. The Company will likely appeal based on the above scenario I just described but even if they don’t and feel they can potentially avoid collusion charges, there’s simply no telling if/when USAPA would put forth a list that the Company might deem to be free of collusion risk. Even if AOL wrote a letter to the Company stating that they did not intend to pursue collusion charges based on Silver’s Order, the threat of a hybrid-DFR does not go away because a different contingent of west pilots (or east if the so chose) could bring the same charges as AOL only represents the west pilots when a federal court creates a class for them to be represented by. As of now there is no single voice of representation that can speak or legally bind the west pilots to any course of action. So it’s up to USAPA and the Company to work through this pursuant to their own legal responsibilities under the RLA. Best guess – it will be appealed to the 9[sup]th[/sup] by the Company.
