MK82Man
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JUST THE FACTS
Issue 2, 17 September 2007
A Publication of the Airline Pilots Association INTL
The self-appointed leaders of the movement to establish an independent union for US Airways pilots want East pilots to think that support for their outfit is a one-way ticket to getting the seniority arrangement that they claim that pre-merger US Airways pilots deserve. These pilots say that, because seniority is part of a contract between labor and management, they can bargain away the results of the Nicolau award, make an agreement with management to change seniority, and put West pilots in their “rightful” place. They even promise to make “date of hire” seniority a part of the new union’s constitution and bylaws.
Do all East pilots believe that? If you think it’s so simple, unwelcome developments await. Why, if it’s that easy, have ALPA pilots just like you repeatedly discussed and decided to retain merger policy and make its results final and binding? Why didn’t they just leave seniority to be bargained like duty rigs, pay rates, benefits?
Here's why:
First, can a new union just bargain away the results of the seniority award?
Virtually everyone agrees that a new union will be bound to honor the existing agreements between ALPA and US Airways/America West—including the Transition Agreement (which requires the parties to implement the results of ALPA Merger Policy in a new, single agreement). So a new union (if it wants to get out of the seniority award) would have to negotiate with management and get management to agree to reject the award.
This means that management would have to be willing to accept years of litigation, legal costs, and substantial risk, knowing full well that there will be instant lawsuits by West pilots. Is it realistic? What if management, instead, refuses to bargain changes to the Transition Agreement? What if management, based on legal grounds and risk, won’t agree to throw out or modify the seniority list and the Nicolau award? And what are the financial and legal risks to an independent union and those who pay dues to it? There will be years of paying lawyers before the legal dust settles (if it ever does). Will the independent union win in court after spending all that money? Without financial support from West pilots, how much will it cost East pilots to pursue this course?
The supporters of a new union assume that management will agree to a new seniority list and that this agreement will be upheld by the courts. They refer to lawsuits where ALPA successfully defended changes in seniority—for example, the agreement with United that restored the seniority of the Group of 570 (new-hires who honored the United strike in 1985) over the seniority of pilots hired during or immediately after the strike. (Have they told you that United pilots gave up $200 million in contract improvements, according to the court, to get United to put the striking 570 ahead of replacements and others?) The case the new union leaders point to is Rakestraw v. United Airlines and ALPA, 981 F.2d 1524 (7th Cir. 1992). The Seventh Circuit judges said things in that case that you haven’t been told about:
Other judges considered ALPA Merger Policy when some Air Wisconsin pilots tried to get out of a seniority award in a merger with Mississippi Valley by (unsuccessfully) trying to change unions (Air Wisconsin Pilots Protection Committee v. Sanderson, 909 F.2d 213, 7th Cir. 1990). These judges said:
Second, what would happen in the unlikely event that a new union succeeded in changing the seniority list and successfully defended the lawsuits?
This is a classic case of “be careful what you wish for.” The new-union promoters argue that seniority can be changed at will. If the courts somehow agree that the independent union can stick it to the pre-merger America West pilots, then the same union can stick it right back to the remaining pre-merger US Airways pilots—with interest—when West pilots and new-hires outnumber East pilots. Back and forth it will go while management looks on and exacts its payment for every seniority U-turn. What do your job security and contract look like in that world? Does it still look so easy?
This is why ALPA pilots like you developed merger policy in the first place. The judges in the Air Wisconsin case had it right when they talked about ALPA Merger Policy. They concluded that
Third, if you think ALPA policy is a problem now, see what it looks like when you’re outside the union.
The leaders who want a new union know something they’re not telling you. They’ve told you that ALPA Merger Policy doesn’t apply to an independent union. Then what happens when Mr. Parker decides to sell US Airways to another airline—most likely a larger ALPA carrier. Who will protect your seniority then? If East pilots trash the Nicolau award, what will happen in the next seniority integration with another arbitrator? What will stop another ALPA pilot group from trying to impose on you, one way or another, the same outcome that American pilots imposed on TWA pilots? Does the course still seem straightforward?
The questions are difficult but the message is simple: If you think that seniority problems are solved or helped by changing to a different union, you should look very carefully before you leap.
Issue 2, 17 September 2007
A Publication of the Airline Pilots Association INTL
Changing Unions to Change Seniority?
Look Before You Leap
The self-appointed leaders of the movement to establish an independent union for US Airways pilots want East pilots to think that support for their outfit is a one-way ticket to getting the seniority arrangement that they claim that pre-merger US Airways pilots deserve. These pilots say that, because seniority is part of a contract between labor and management, they can bargain away the results of the Nicolau award, make an agreement with management to change seniority, and put West pilots in their “rightful” place. They even promise to make “date of hire” seniority a part of the new union’s constitution and bylaws.
Do all East pilots believe that? If you think it’s so simple, unwelcome developments await. Why, if it’s that easy, have ALPA pilots just like you repeatedly discussed and decided to retain merger policy and make its results final and binding? Why didn’t they just leave seniority to be bargained like duty rigs, pay rates, benefits?
Here's why:
First, can a new union just bargain away the results of the seniority award?
Virtually everyone agrees that a new union will be bound to honor the existing agreements between ALPA and US Airways/America West—including the Transition Agreement (which requires the parties to implement the results of ALPA Merger Policy in a new, single agreement). So a new union (if it wants to get out of the seniority award) would have to negotiate with management and get management to agree to reject the award.
This means that management would have to be willing to accept years of litigation, legal costs, and substantial risk, knowing full well that there will be instant lawsuits by West pilots. Is it realistic? What if management, instead, refuses to bargain changes to the Transition Agreement? What if management, based on legal grounds and risk, won’t agree to throw out or modify the seniority list and the Nicolau award? And what are the financial and legal risks to an independent union and those who pay dues to it? There will be years of paying lawyers before the legal dust settles (if it ever does). Will the independent union win in court after spending all that money? Without financial support from West pilots, how much will it cost East pilots to pursue this course?
The supporters of a new union assume that management will agree to a new seniority list and that this agreement will be upheld by the courts. They refer to lawsuits where ALPA successfully defended changes in seniority—for example, the agreement with United that restored the seniority of the Group of 570 (new-hires who honored the United strike in 1985) over the seniority of pilots hired during or immediately after the strike. (Have they told you that United pilots gave up $200 million in contract improvements, according to the court, to get United to put the striking 570 ahead of replacements and others?) The case the new union leaders point to is Rakestraw v. United Airlines and ALPA, 981 F.2d 1524 (7th Cir. 1992). The Seventh Circuit judges said things in that case that you haven’t been told about:
- “[A] union may not take away the seniority of some employees for no reason other than that the losers have too few votes to affect the outcome of an intra-union election. . . .”
- “[A] union may not juggle the seniority roster for no reason other than to advance one group of employees over another. The change must rationally promote the aggregate welfare of employees in the bargaining unit.”
Other judges considered ALPA Merger Policy when some Air Wisconsin pilots tried to get out of a seniority award in a merger with Mississippi Valley by (unsuccessfully) trying to change unions (Air Wisconsin Pilots Protection Committee v. Sanderson, 909 F.2d 213, 7th Cir. 1990). These judges said:
- “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 [italics added].”
Second, what would happen in the unlikely event that a new union succeeded in changing the seniority list and successfully defended the lawsuits?
This is a classic case of “be careful what you wish for.” The new-union promoters argue that seniority can be changed at will. If the courts somehow agree that the independent union can stick it to the pre-merger America West pilots, then the same union can stick it right back to the remaining pre-merger US Airways pilots—with interest—when West pilots and new-hires outnumber East pilots. Back and forth it will go while management looks on and exacts its payment for every seniority U-turn. What do your job security and contract look like in that world? Does it still look so easy?
This is why ALPA pilots like you developed merger policy in the first place. The judges in the Air Wisconsin case had it right when they talked about ALPA Merger Policy. They concluded that
- “The alternative to placing so much power in the hands of an arbitrator would be to encourage continuing and acrimonious disputes among workers by opening seniority to continual revision.”
- “The reason for the policy [of finality] is not hard to see. If ALPA were free to ignore the merged seniority list, the employees of the post-merger airline would have very little job security; as a concomitant, disputes over seniority would fester—as they have done in this case, in which plaintiffs are indirectly challenging the finality of the merged seniority list.”
- “The system that ALPA has created for determining seniority in a merged workforce is not biased in favor of one group of workers or prejudiced against another. It was as likely to yield an award in favor of Air Wisconsin’s pilots as in favor of Mississippi Valley’s. It is fair, and nothing more is required to comply with the duty of fair representation.”
Third, if you think ALPA policy is a problem now, see what it looks like when you’re outside the union.
The leaders who want a new union know something they’re not telling you. They’ve told you that ALPA Merger Policy doesn’t apply to an independent union. Then what happens when Mr. Parker decides to sell US Airways to another airline—most likely a larger ALPA carrier. Who will protect your seniority then? If East pilots trash the Nicolau award, what will happen in the next seniority integration with another arbitrator? What will stop another ALPA pilot group from trying to impose on you, one way or another, the same outcome that American pilots imposed on TWA pilots? Does the course still seem straightforward?
The questions are difficult but the message is simple: If you think that seniority problems are solved or helped by changing to a different union, you should look very carefully before you leap.
