That's the most absurd analogy I've heard yet...
You don’t like analogies? Okay how about some undisputed facts:
1. Following the merger, US Airways, America West, their respective corporate parents, ALPA, the US Airways Master Executive Council (“MEC”), and the America West MEC entered into a Transition Agreement which governed, among other things, the integration of the East Pilots and West Pilots seniority lists.
2. The Transition Agreement mandated that “[t]he seniority lists of America West pilots and US Airways pilots will be integrated in accordance with ALPA Merger Policy and submitted to the Airline Parties for acceptance,” and further required that “[t]he Airline Parties will accept such integrated seniority list, including conditions and restrictions, if such list and the conditions and restrictions comply with” the following criteria: (i) no “system flush” (through which “an active pilot may displace any other active pilot from the latter’s Position”); (ii) furloughed pilots could not displace active pilots; (iii) no differential pay where a pilot is paid for a position not actually flown; (iv) ability of pilots who are in the process of being trained for a new position to be assigned to that position “regardless of their relative standing on the integrated seniority list;” and (v) no conditions and restrictions that “materially increase costs associated with training or company paid moves.”
3. Pursuant to ALPA’s Merger Policy, if two pilot groups could not agree on an integrated seniority list through direct negotiations or mediation, the next step was to integrate the pre-merger seniority lists on a “fair and equitable” basis through arbitration award that “shall be final and binding on all parties to the arbitration.”
4. Mr. Nicolau is a full-time arbitrator, mediator and attorney, with extensive experience in the airline industry; he is also a past President of the National Academy of Arbitrators, and has received the Distinguished Service Award of the American Arbitration Association.
5. The Nicolau Award placed approximately 500 East Pilots at the top of the seniority list, 1,700 furloughed East Pilots at the bottom of the list, and blended the remainder of the East Pilots with the West Pilots generally according to their relative positions on their pre-merger seniority lists.
6. The integrated seniority list generated through the Nicolau Award satisfied the specified criteria set out in the Transition Agreement.
7. As required by the Transition Agreement, US Airways accepted the integrated seniority list on December 20, 2007.
8. At trial, the jury found that USAPA had violated its DFR to the West Pilot class because it “cast aside the result of an internal seniority arbitration solely to benefit East Pilots at the expense of West Pilots,” and “failed to prove that any legitimate union objective motivated its acts.”
9. On appeal, the Ninth Circuit did not reach the merits of the West Pilots’ DFR claim against SAPA, but instead held that their claim was not ripe.
10. The fact that there was a change in the pilots’ representative—from the Air Line Pilots Association (“ALPA”) to USAPA—does not affect the validity of any pre-existing CBA, including the Transition Agreement. That Agreement remains in full force and effect, and USAPA—as the successor to ALPA as the pilots’ representative—has rights and obligations thereunder (as does US Airways). Indeed, since replacing ALPA, USAPA has consistently invoked various provisions of the Transition Agreement, and has in no way acted as if that Agreement is anything but a binding contract.
11. The decertification of ALPA and the certification of USAPA did not change the binding nature of the Transition Agreement.
12. The parties to a CBA under the RLA include the carrier and its employees – not only the carrier and the union.
13. Like any other provision of a binding agreement, the “process elements” of the Transition Agreement are binding on US Airways’ pilots and their union.
14. The Supreme Court has affirmed that a union must comply with its DFR in negotiating CBAs, and has held that a union breaches its duty in that context if its actions are arbitrary, discriminatory, or in bad faith.
15. There have been numerous cases in which courts have addressed allegations that a union’s negotiation of particular seniority provisions – precisely what USAPA seeks to negotiate here in lieu of the seniority list required by the Nicolau Award – constitutes a breach of its DFR.
