CHARLOTTE (TheStreet) -- A federal judge in Phoenix didn't
much care for the courtroom tactics utilized by the union representing US
Airways pilots, but she nevertheless ruled in its favor in a potentially
conclusive court ruling in the eight-year-old seniority battle resulting from a
2005 merger with America West.
U.S. District Court Judge Roslyn Silver, in a ruling issued
late Friday, said the US Airline Pilots Association has not breached its duty
of fair representation, as former America West Pilots had claimed. Silver also
ruled that the former America West pilots need not be separately represented in
seniority list discussions with the Allied Pilots Association.
Seniority negotiations will take place under the
McCaskill-Bond labor protection protocol approved by Congress in 2007. US
Airways became a subsidiary of American Airlines in a merger that took effect
on Dec. 9.
The ruling appeared to mean that arbitrator George Nicolau's
controversial 2007 seniority ruling, which followed the 2005 merger of America
West and US Airways, need not be specifically considered in compiling the
seniority list that will apply in the 2013 merger between US Airways and
American.
At the least, adherence to the ruling is not part of the
language that will guide APA and USAPA as they enter seniority negotiations.
However, Silver wrote in her 22-page ruling, that USAPA
"has never been free -- and never will be free -- to extract the maximum
benefits for the east pilots, regardless of the cost to the west pilots."
The ruling bristled with negative references to USAPA and declared near its
conclusion that "USAPA has succeeded here but it is a Pyrrhic
victory" because the union will disappear as a result of the merger, given
that APA is far larger.
USAPA represents pilots from both America West and the
former US Airways, known as "the east." Pilots from the east account
for about two-thirds of its members. They view the Nicolau ruling as overly
favorable to west pilots. After Silver's ruling, some proclaimed the Nicolau
ruling to be "dead."
But a west pilot, who asked not to be named, said,
"This fight is far from over, and the west pilots are united as ever in
our resolve to force all parties involved to live up to their previous
commitments."
The Nicolau award resulted from binding arbitration, agreed
to by both sides and conducted under the seniority guidelines of the Air Line
Pilots Association, which included US Airways at the time of the America West
merger. Leonidas LLC, which represents west pilots, said on its Web site that
"the seniority dispute is far from over."
In an e-mail to pilots, the USAPA merger committee wrote
that the ruling "clears the way for your USAPA merger committee to fully
engage with APA in the required process for the seniority list integration.
"The USAPA merger committee is now, and always has
been, committed to representing all US Airways pilots fairly," the e-mail
said. "We are not interested in any proposal that elevates or provides a
windfall to only a segment of the pilot population at the expense of
another."
In the section of her ruling on the duty of fair
representation claim, Judge Silver said it is impossible to say that duty has
been breached, even though "USAPA's actions are sufficiently disturbing to
make this a very close call."
A key paragraph in the merger agreement, which is a
memorandum of understanding between the two unions and American, appears to
impede enactment of the Nicolau ruling. But that paragraph may have been part
of the effort to negotiate the merger agreement, which also provides significantly
increased compensation for both east and west pilots, Silver said. As a result,
she said, inclusion of the paragraph in the merger agreement cannot be said to
represent a breach of USAPA's duty of fair representation.
Moreover, when APA and USAPA devise a new seniority list
under McCaskill-Bond, the list "will include the thousands of pilots from
American Airlines," Silver wrote. "It will be difficult to compare
that regime to the Nicolau award. Thus the only question the court can answer
at this time is whether USAPA had a legitimate union purpose for entering into
the MOU. It did.
"The present record does not establish the facially
neutral provision was completely divorced from legitimate union
objectives," Silver wrote. "Therefore the west pilots have not proven
their DFR claim."
In determining whether west pilots should be separately
represented in seniority negotiations, Silver wrote that the precedent is
unclear regarding whether a "certified representative," meaning
USAPA, is exclusively entitled to represent the parties.
But, referring to the west pilots, she concluded that
"allowing the involvement of any employee or group of employees with
sufficiently distinct interests would be an invitation to chaos; the seniority
integration process cannot accommodate the participation of whoever might be
affected by the final result."
In the next paragraph of her ruling, Silver declares USAPA's
victory to be "Pyrrhic" and declares that USAPA will quickly be
replaced and "will no longer be entitled to participate in the seniority
integration proceedings." She said, "The court has no doubt that - as
is USAPA's consistent practice - USAPA will change its position when it needs
to do so to fit its hard and unyielding views on seniority" and will argue
that it ought to participate even if it is not certified.
"The court's patience with USAPA has run out," she
wrote. "USAPA avoided liability on the DFR claim by the slimmest of
margins and the court has serious doubts that USAPA will fairly and adequately
represent all of its members while it remains a certified representative."
In contrast to Silver's view, USAPA's merger committee
asserted that "the McCaskill-Bond process provides that all US Airways
pilots will be represented by the USAPA merger committee until the seniority
list integration process is complete. The memorandum of understanding and the
McCaskill-Bond legislation are very clear and concise on that point."
Source: Philly.com
/ The Street
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