USAir East West NIC Award Resolution? Very soon!

[TWA Dude]

Judge Silver's final order is out.
In a nutshell, we're back to where we were in 2010. She decided to make no real ruling in the case. USAPA is free to negotiate a new seniority list but unless there's a "legitimate union purpose" all parties are liable to a DFR case.

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This is a hard case. As set forth in the parties’ summary judgment filings, the

underlying facts are undisputed but the appropriate conclusions to be drawn from those facts

differ greatly. Having reviewed all of the filings and considered the arguments made by

counsel at the oral argument, the Court concludes Defendant US Airline Pilots Association

(“USAPA”) is free to pursue any seniority position it wishes during the collective bargaining

negotiations. But with that freedom comes risk because the West Pilot Defendants1 may

have viable legal claims in the future should the collective bargaining agreement contain a

seniority provision harmful to a subsection of the union. As for US Airways, it must

negotiate with USAPA and it need not insist on any particular seniority regime. But US

1 The West Pilot Defendants are Don Addington, John Bostic, Mark Burman, Afshin
Iranpour, Roger Velez, and Steve Wargocki, on behalf of themselves and the certified West
Pilot Class.


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Airways must evaluate any proposal by USAPA with some care to ensure that it is reasonable
and supported by a legitimate union purpose.

I. Background
In 2005, US Airways merged with America West Airlines, Inc. (“America West”) to
form a single airline. (Doc. 151, ¶ 1). At that time, US Airways had recently emerged from
bankruptcy. (Id., ¶ 2). Pilots employed by both airlines were represented by the Air Line
Pilots Association (“ALPA”) as their bargaining representative and each group had existing
collective bargaining agreements. (Doc. 151, ¶ 6; Doc. 153, ¶¶ 5, 6 & 10). The America
West pilots at the time of the merger were generally referred to as the West Pilots. The US
Airways pilots at the time of the merger were generally referred to as the East Pilots. (Doc.
151, ¶¶ 4-5). As a result of the merger, America West, US Airways Group, US Airways,
ALPA and others entered into a Transition Agreement that contained employment terms and
conditions related to the merger. (Doc. 151, Transition Agreement, App. 087; Doc. 153, ¶
14, Ex. 3). All pilots “in the service of America West and US Airways” were parties to the
Transition Agreement. (Doc. 156-3 at 25).

The Transition Agreement provided “[t]he seniority lists of America West pilots and
US Airways pilots will be integrated in accordance with ALPA Merger Policy and submitted
to [US Airways] for acceptance.” (Doc. 156-3 at 30). The Transition Agreement also
provided a detailed procedure for any disputes involving “the interpretation or application
of” the Transition Agreement. (Doc. 156-3 at 36). Finally, the Transition Agreement
provided that it could “be modified by written agreement of [ALPA] and [US Airways]
collectively.” (Doc. 156-3 at 38).

Under ALPA’s policies, the West Pilots and the East Pilots were each represented by
a Master Executive Council (“MEC”). (Doc. 151, ¶¶ 6-8). Under the “ALPA Merger
Policy” referenced in the Transition Agreement, Merger Committees, appointed by each
MEC and representing each pilot group, were responsible for creating a single integrated

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seniority list. If the Merger Committees could not agree, the matter would proceed to
arbitration. (Doc. 151, ¶ 16; Doc. 153, ¶ 16).

Because no agreement could be reached, the seniority issue proceeded to arbitration
before the Board of Arbitration consisting of neutral arbitrator George Nicolau and pilot
neutrals Stephen Gillen and James Brucia. The arbitration decision, referred to as the
Nicolau Award, issued on May 1, 2007. The Nicolau Award created an integrated seniority
list that placed approximately 500 of the most senior East Pilots at the top of the list because
they flew wide-body aircraft and no West Pilot flew such aircraft. It placed all East Pilots
who were on furlough at the time of the merger at the bottom of the list. It then blended the
two pilot lists. (Doc. 151, ¶¶ 21-24, 28, 30-33; Doc. 153, ¶¶ 16-19). The East Pilots
disagreed with the arbitration award and took immediate steps to frustrate it.

The East MEC appealed to ALPA’s Executive Committee to overturn the Nicolau
Award (Doc. 151, ¶ 35; Doc. 153, ¶ 21), but it was determined there was no ground under
the ALPA Merger Policy to set the award aside. (Doc. 151, ¶¶ 36-37). On June 26, 2007, the
East MEC filed suit in the District of Columbia against the West MEC to set aside the
Nicolau Award. (Doc. 151, ¶ 39; Doc. 153, ¶ 23). The East MEC also notified ALPA it was
demanding that ALPA refrain from sending the Nicolau seniority list to US Airways for
acceptance. (Doc. 153, ¶ 24). Dissatisfied with ALPA’s actions, a group of pilots formed
a new labor organization known as USAPA. (Doc. 151, ¶¶ 41-45, 49-53; Doc.153, ¶¶ 25,
27). USAPA’s Constitution and Bylaws provide that its objectives include maintaining
“uniform principles of seniority based on date of hire and the perpetuation thereof, with
reasonable conditions and restrictions to preserve each pilot’s un-merged career
expectations.” (Doc. 153, ¶ 28, Ex. 2 at 8). In other words, one of the main purposes of
USAPA is to reject the Nicolau Award. On November 13, 2007, USAPA filed an application
with the National Mediation Board (“NMB”) seeking to replace ALPA as the representative
of the combined bargaining unit consisting of the US Airways pilots and the America West
pilots. (Doc. 153, ¶ 30).

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Despite USAPA’s attempts to gain recognition, on December 19, 2007, ALPA
presented the Nicolau Award to US Airways for acceptance. (Doc. 162, ¶ 28, Response). On
December 20, 2007, US Airways accepted the integrated seniority list as determined in the
Nicolau Award. (Doc. 151, ¶ 34; Doc. 153, ¶ 32). A short while later, a representation
election was held between ALPA and USAPA which USAPA won. (Doc. 151, ¶¶ 62-63;
Doc. 153, ¶ 33). On April 18, 2008, the NMB certified USAPA as the new bargaining
representative of the combined pilot group. (Doc. 151, ¶ 64; Doc. 153, ¶ 33). The East
MEC’s litigation seeking to vacate the Nicolau Award was dismissed. (Doc. 151, ¶ 40).

USAPA took over direct negotiations with US Airways for a single integrated
collective bargaining agreement. On September 30, 2008, USAPA submitted a new seniority
proposal to US Airways. (Doc. 151, ¶ 65; Doc. 153, ¶ 38). This proposal combined the East
and West Pilots on the merged seniority list according to their dates of hire without regard
to whether a pilot was on furlough at the time of the merger. The East Pilots allege that the
proposal contains extensive conditions and restrictions that protect the West Pilots. But the
West Pilots contend the proposal puts a majority of them at or near the bottom of the list and
would put the West Pilots at risk of furlough before the East Pilots who were on furlough at
the time of the merger. (Doc. 151, ¶¶ 66-70; Doc. 153, ¶ 38).

In 2008, a group of West Pilots sued USAPA claiming USAPA had breached its duty
of fair representation by refusing to adopt the Nicolau Award during negotiations with US
Airways. The case was certified as a class action and proceeded to trial where the West
Pilots prevailed. On appeal, however, the case was dismissed as not presenting a ripe
controversy. Shortly after that dismissal, US Airways filed the present declaratory judgment
action against the class of West Pilots and USAPA. US Airways’ complaint sought one of
the following three determinations:

(1)
USAPA’s seniority proposal (i.e., strict “date of hire”) breaches
its duty under the Railway Labor Act and its duty of fair
representation and US Airways cannot adopt it (Doc. 1, Count
I);
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(2)
USAPA’s seniority proposal does not breach its duty under the
Railway Labor Act and its duty of fair representation and US
Airways must adopt it (Doc. 1, Count II); or
(3)
US Airways will not be liable to the West Pilots regardless ofwhich seniority proposal it adopts. (Doc. 1, Count III).
US Airways contends it needs this guidance in order to determine the range of
permissible proposals in the collective bargaining agreement negotiations. According to US
Airways, if it accepts USAPA’s seniority proposal, the West Pilots have said they will sue
US Airways for facilitating or assisting USAPA’s breach of the duty of fair representation.
And, if US Airways insists on adopting the new collective bargaining agreement
incorporating the Nicolau Award, USAPA has promised a work stoppage.
USAPA now seeks summary judgment that its seniority proposal does not breach its
duty of fair representation while the West Pilots seek summary judgment that USAPA’s
proposal does breach its duty of fair representation. US Airways has filed briefs stating it
is neutral on these issues but offering some guidance on the applicable legal framework.


(continued)

 

[TWA Dude]

II.
Summary Judgment Standard
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). When determining whether a genuine dispute exists, the evidence of the
non-moving party is to be believed, and all reasonable inferences drawn in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986). “[A] party seeking summary
judgment always bears the initial responsibility of informing the district court of the basis for
its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986) (internal citations omitted). In considering cross-motions for summary
judgment, the court considers each party’s evidence in evaluating whether summary
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judgment is appropriate. Johnson v. Poway Unified School District, 658 F.3d 954, 960 (9th
Cir. 2011).

III. Discussion
The primary focus of the parties’ summary judgment filings is whether the Transition
Agreement is “binding” on USAPA. According to USAPA, it is “not ‘contractually’ bound
by any of ALPA’s agreements,” including the Transition Agreement. (Doc. 160 at 10). But
the West Pilots, as well as US Airways, cite a variety of authority supporting the position that
the “decertification of ALPA and the certification of USAPA did not change the binding
nature of the Transition Agreement.” (Doc. 164 at 7). The West Pilots and US Airways are
correct.

When USAPA became the pilots’ new collective bargaining representative, it
succeeded “to the status of the former representative without alteration in the contract terms.”
Int’l Bhd. of Teamsters v. Texas Int’l Airlines, Inc., 717 F.2d 157, 163 (5th Cir. 1983). As
there does not appear to be any dispute that the Transition Agreement was part of the contract
between the pilots and US Airways, the Transition Agreement applies to USAPA. Even the
case which USAPA relies upon states there is a “general principle that collective bargaining
agreements survive a change in representative.” Ass’n of Flight Attendants, AFL-CIO v.
USAir, Inc., 24 F.3d 1432, 1439 (D.C. Cir. 1994). Thus, just as ALPA would have been
bound by the Transition Agreement had it remained the pilots’ representative, USAPA is
bound by the Transition Agreement.2

2 USAPA believes the Transition Agreement is not binding and it “cannot in any way
limit the authority of USAPA . . . with respect to negotiating a new agreement.” (Doc. 152
at 16). It is unclear why USAPA is so adamant on this point as there is no claim that the
Transition Agreement itself is limiting USAPA’s authority during the negotiation of a new
collective bargaining agreement. Regardless of the binding nature of the Transition
Agreement, USAPA’s duty in negotiating a collective bargaining agreement remains the
same: to act in conformity with its duty of fair representation. See 14 Penn Plaza LLC v.
Pyett, 556 U.S. 247, 270-72 (2009) (“Labor unions certainly balance the economic interests
of some employees against the needs of the larger work force as they negotiate collective


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But being “bound” by the Transition Agreement has very little meaning in the context
of the present case. It is undisputed that the Transition Agreement can be modified at any
time “by written agreement of [USAPA] and the [US Airways].” (Doc. 156-3 at 38).
Moreover, USAPA and US Airways are now engaged in negotiations for an entirely new
collective bargaining agreement and there is no obvious impediment to USAPA and US
Airways negotiating and agreeing upon any seniority regime they wish. As explained by the
Ninth Circuit, “seniority rights are creations of the collective bargaining agreement, and so
may be revised or abrogated by later negotiated changes in this agreement.” Hass v.
Darigold Dairy Products Co., 751 F.2d 1096, 1099 (9th Cir. 1985). And a union “may
renegotiate seniority provisions of a collective bargaining agreement, even though the
resulting changes are essentially retroactive or affect different employees unequally.” Id.

Of course, in negotiating for a particular seniority regime, USAPA must not breach
its duty of fair representation. Accordingly, if USAPA wishes to abandon the Nicolau Award
and accept the consequences of this course of action, it is free to do so. By discarding the
result of a valid arbitration and negotiating for a different seniority regime, USAPA is
running the risk that it will be sued by the disadvantaged pilots when the new collective
bargaining agreement is finalized. An impartial arbitrator’s decision regarding an
appropriate method of seniority integration is powerful evidence of a fair result. Discarding
the Nicolau Award places USAPA on dangerous ground.

In the end, the Court cannot provide as much guidance as it had hoped it could.
Pursuant to the Ninth Circuit’s decision, any claim for breach of the duty of fair
representation will not be ripe until a collective bargaining agreement is finalized. Addington

v. U.S. Airline Pilots Ass’n, 606 F.3d 1174, 1181-82 (9th Cir. 2010). In this case, that means
even though an integrated seniority regime is an incredibly important issue, and USAPA
bargaining agreements” and that balance must reflect compliance with the unions’ “duty of
fair representation.”).

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appears totally committed to a particular seniority regime, it is not possible to determine the
viability of any claim for breach of the duty of fair representation until a particular seniority
regime is ratified. When the collective bargaining agreement is finalized, individuals will
be able to determine whether USAPA’s abandonment of the Nicolau Award was permissible,

i.e. supported by a legitimate union purpose. Thus, the best “declaratory judgment” the
Court can offer is that USAPA’s seniority proposal does not automatically breach its duty
of fair representation.3
This conclusion places US Airways in a difficult position. At the present time, it is
not possible to predict what will result from the collective bargaining negotiations. Thus, the
Court cannot grant US Airways prospective immunity from any legal action by the West
Pilots. But based on the representation at oral argument that the seniority list is unlike other
matters addressed in collective bargaining, it is unlikely the West Pilots could successfully
allege claims against US Airways merely for not insisting that USAPA continue to advocate
for the Nicolau Award. See Davenport v. Int’l Broth. of Teamsters, AFL-CIO, 166 F.3d 356,
361-62 (D.C. Cir. 1999) (addressing, without deciding, “the proper standard for determining
whether an employer can be implicated in a union’s breach of duty”).

Accordingly,

IT IS ORDERED USAPA’s Motion for Summary Judgment (Doc. 152) is
GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED the Motion for Discovery (Doc. 163) is DENIED.

IT IS FURTHER ORDERED the West Pilots’ Motion for Summary Judgment (Doc.

150) is DENIED.
IT IS FURTHER ORDERED the Motion to Add Language (Doc. 190) is DENIED.

3 Based on this conclusion, there is no need to address USAPA’s request to conduct
discovery. (Doc. 163).

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Case 2:10-cv-01570-ROS Document 193 Filed 10/11/12 Page 9 of 9

IT IS FURTHER ORDERED the Clerk of Court shall enter judgment dismissing
Counts I and III of the complaint and in favor of US Airline Pilots Association on Count II
of the complaint stating US Airline Pilots Association’s seniority proposal does not breach
its duty of fair representation provided it is supported by a legitimate union purpose.

DATED this 11th day of October, 2012.

 

[Carl S.]

I like USAPA updates, they are quick, to the point and usually dead wrong...They state that they won on count II today and no DFR is coming. Too bad the case was about the company's liability to a non-nic list and not about USAPA or a DFR...don't let facts get in your way when trying to reinvent the wheel....

 

[B-atch]

You know you west boys are amazing. Someone just turned on the lights for ya, and your still in the DARK!! If you take the blinders off, you might see the obvious...
Keep this HS up and you will find yourselves spun-off...

 

[Superbird]

You know you west boys are amazing. Someone just turned on the lights for ya, and your still in the DARK!! If you take the blinders off, you might see the obvious...
Keep this HS up and you will find yourselves spun-off...

Tall hat, no cattle. Ain't happening B-atch, sorta like date of hire isnt going to happening. Read the message in Silvers decision as it may just become clear that you're out of options. More substandard pay for you, but its what you want right?

 

[Carl S.]

The ruling from Silver is chock-full of good stuff, please read...USAPA just read the first page...pages 2 to 9 lay out how the company is held responsibile if they wonder off the NIC. Does LCC appeal? 30 days and counting.....

 

[Bringupthebird]

Keep this HS up and you will find yourselves spun-off...

You should really find out who is selling the "spin-off" theory and ask him how specifically he thinks it will be done. Don't be surprised at his mumbling and changing the subject. He probably thinks Superman is non-fiction too.

 

[General Lee]

The ruling from Silver is chock-full of good stuff, please read...USAPA just read the first page...pages 2 to 9 lay out how the company is held responsibile if they wonder off the NIC. Does LCC appeal? 30 days and counting.....

Ohhhhhh SNAP! I think I just heard Turtle and ALGflyer bump heads. Oh well.


Bye Bye---General Lee

 

[Bringupthebird]

Question one at the DFR hearing (while the contract languishes under an injunction)
"USAPA, If DOH is a legitimate union objective, why didn't you leave ALPA when you were told you wouldn't get it, rather than waiting for the Nicolau Award? And why is DOH not the Legitimate Union Objective of the largest pilot union, ALPA? Hmmm?"

Thorny, very thorny!

 

[Turtle21]

Wide range of reasonableness.