The legal question in any DFR is *why* the union has undertaken a particular action. The courts will permit a union to do all sorts of things, but will NOT permit a union to take an action for the mere purposes of political expediency. That question makes no distinction between "ratified" or "un-ratified" seniority lists; such a distinction could only come into play if it carried some weight into the justification for the union's conduct. It certainly doesn't make a difference here because there is a mountain of evidence that USAPA was formed to avoid the outcome of a mutually agreed-to seniority integration arbitration that the employer already accepted. This creates two major problems for USAPA.
First, there really aren't any reasons to reshuffle a seniority list other than political expediency. Rakestraw is the only case that permitted it, but the facts of that case are rare and exceptional. The fact that there WAS a seniority arbitration and that the company accepted it means that USAPA is, in fact, attempting to reshuffle a seniority list. The fact that is was not "implemented" yet makes no difference; but even so, there are the facts of the East MEC unilaterally withdrawing from JNC talks and USAPA encouraging its pre-certification supporters to remain in good standing with ALPA so that they could "vote NO" on any compromise reached between the MECs.
Second, it's not so much THAT a union is afforded a tremendous amount of judicial deference, but it is WHY a union is afforded that deference. The reason is because courts recognize that unions can only fulfill their roles of RESOLVING employer / union disputes when they are given the latitude to make deals. Here, USAPA is in fact CREATING an employer / union dispute by attempting to undermine a previous agreement. Moreover, ARBITRATION is the preferred (and nearly exclusive) method of resolving disputes in the labor world. Lastly, courts NEVER involve themselves in the merits of a seniority integration. So long as the procedure & process are sound, the court could care less what the outcome is. In short, no court is ever going to afford USAPA the deference to undo a previously-settled employer / union agreement regarding seniority for the very same reason that courts normally afford unions such deference in the first place.
Oh - and one more thing - our situation here is not unique. It happened in 1985:
Air Wisconsin's pilots wanted the seniority lists merged on the basis purely of length of service: the pilot hired earliest by either airline would have the greatest seniority in the post-merger Air Wisconsin, the next pilot to be hired by either airline would have the second greatest seniority, and so on down the line. Mississippi Valley's pilots wanted credit for the fact that, before the merger, their airline had been growing more rapidly than Air Wisconsin. The arbitrators split the difference. Their award, set forth in a lengthy document rich in a jargon unfamiliar to us, gave Mississippi Valley's pilots greater seniority than they would have obtained if only length of service had been considered, but less than they had asked for. Some, and probably a majority, of the pilots of the pre-merger Air Wisconsin were unhappy with the award, but none attempted to challenge it in court. Instead, some of them tried to replace ALPA as the collective bargaining representative of Air Wisconsin's pilots with a newly created union, since ALPA was committed by its policy statement to defending the arbitration award.
Air Wisconsin Pilots Prot. Comm. v. Sanderson, 909 F.2d 213, 215 (7th Cir. 1990).
It is worth noting that this took place at a time when DOH *was* a part of ALPA Merger Policy. Those who blame the Nicolau Award on ALPA's removal of DOH from its policy do so with an unbelievable amount of ignorance. The "gold standard" - as established in the United-Capitol merger of 1961 and later adopted in the Allegheny-Mohawk merger is "fair and equitable." Hire date certainly carries some weight into what is "fair and equitable," but is not (and never has been) the ONLY consideration.
Of course, the ONLY difference between the Air Wisconsin / Mississippi Valley merger and ours is that we succeeded ousting ALPA and Air Wisconsin didn't. But that is also an irrelevant factual distinction because, as I mentioned before, the judicial focus was on the MOTIVE of the Air Wisconsin pilots. Here's what Judge Posner had to say about that:
We need not decide whether, if the plaintiffs and their allies ever succeed in ousting ALPA in favor of a union not pledged to defend the arbitrators' award, the matter of seniority can be reopened in collective bargaining negotiations with the airline, or otherwise revisited. The plaintiffs say the award became a provision of the collective bargaining agreement and expired when that agreement expired. We leave aside the merit of this contention beyond noting that an attempt by a majority of the 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 of the duty of fair representation by the union that the majority used as its tool.
Air Wisconsin Pilots Prot. Comm. v. Sanderson, 909 F.2d 213, 217 (7th Cir. 1990)
Lee Seham bilked this pilot group for over $7 million in attorneys fees in pursuit of a seniority concoction that will never come to fruition.