I think that thses are the core of the issues being debated.
The interpretation that the union can negotiate anything it desires without regard to the west pilot’s interests as long as a CBA gets membership ratification is, in my opinion, misguided.
Please recall that the District Court stated the union has a right to negotiate away from the Nic as long as it was for “a legitimate union objective”. I believe that is the same logic behind the phrase that “that USAPA is at least as free to abandon the Nicolau Award as was its predecessor, ALPA.” This follows from the Rakestraw decision, (UAL seniority dispute), that implicitly defined a union’s fundamental right to freely negotiate seniority, even if it is discriminatory, (by definition seniority is a zero sum issue – someone’s gain is another’s loss) as long as the action benefits the bargaining group as a whole.
The whole ALPA v USAPA policy or procedures argument is, I think, misplaced because the TA, (read amended CBA) describes the process.
I believe that the most important part of this decision comes from paragraph 5 of the majority's opinion:
At this point, neither the West Pilots
nor USAPA can be certain what seniority proposal ultimately
will be acceptable to both USAPA and the airline as part of
a final CBA.
Meaning, what will the company accept? Will the company defer to the union for the current proposal they have submitted, or because of fear of legal liability insist on the Nic? Remember uncle Al testified by deposition at the trial that the company has never entertained anything other than the Nic for Section 22. The company has not been eager for a contract, (they have been very miserly, and opposed the NMB mediator), and unless another transaction or event occurs to change their outlook, I believe they will continue to delay. The above snippet gives the company the opportunity to frustrate the negotiation process under cover of the 9th Circuit’s opinion by insisting on the Nic.
Just trying to provoke thought and not rhetoric.
