Here is what the 9th said about "free to bargain"....:
"We do not address the thorny question of the extent to which the Nicolau Award is binding on USAPA. We note, as the district court recognized, that USAPA is at least as free to abandon the Nicolau Award as was its predecessor, ALPA. The dissent appears implicitly to assume that the Nicolau Award, the product of the internal rules and processes of ALPA, is binding on USAPA."
Here is the "abundantly clear" statement from the 9th in the
entire CONCLUSION:
"For the foregoing reasons, we hold that Plaintiffs’ DFR claim is not ripe; therefore, the case is REMANDED to the district court with directions that the action be DISMISSED. No costs to either side."
I'm not an attorney, but if you read the ENTIRE decision from the 9th you should walk away with the following:
- Was ALPA "free to abandon" the Nicolau seniority list? ALPA already looked at the process and found no wrong doing. They delivered the completed list to US Airways. As such, I think the answer to that question is "NO".
- The 9th said it was simply not ripe (2-1 Bybee dissenting) with out a joint collective bargaining agreement that did not include the Nicolau list (paraphrasing). It seems then that IF a collective bargaining agreement is struck between the company and USAPA (or who ever the agent is) that has something OTHER than the Nicolau seniority list....you have just crossed the RIPE line (IMHO).
Here is the document if you wish to read it yourself:
http://leonidas.cactuspilots.us/9th.../Doc046-1_AddingtonDecision_Ninth_Circuit.pdf
CB
I assure you I am very familiar with it and have read it numerous times, from the 9th's own library of published opinions
Here, and not from USAPA's or Leonidas' site (in the off chance they aren't exact copies).
Using the 9th's opinion to speculate on the outcome of this dispute is not very reliable, because after all, the 9th court's opinion was merely a direction to remove the inunction, and provided for the pilots to know what to expect from the courts in the future, after they finish their negotiations with the company.
The relevant information for us is what we 1)
cannot do now, what we 2)
can do now, and what conditions must be met for us to 3) do something different in the
future. Making predictions about the outcome of this dispute are only speculative (and denying the dispute is stupid), but the 9th did provide clear direction for what we cannot do, what we can do, and provided the conditions for the next DFR suit, in the event someone wants one. The 9th even cited a SCOTUS standard or threshold to be surmounted to prove that a DFR occurred, should anyone that is thinking of a future DFR wish to have a heads up before spending another $2Mil.
The 9th told us what we cannot have or do--No injunction during internal disputes:
there is no disputing that this case would be the first time we [the 9th] allowed a DFR suit to proceed in a collective bargaining/ contract negotiating context before the CBA at issue was ratified. Such a departure from the norm would invite parties to bring suit long before internal disputes have had a chance to work themselves out.
To be sure, the parties’ interest would be served by prompt resolution of the seniority dispute , but that is not the same as prompt resolution of the DFR claim.
The 9th told us what we can do, ie. continue to bargain with the company, with the knowledge of when a DFR may be brought:
..it is uncertain that the West Pilots’ preferred seniority system ever would be effectuated.
Not until the airline responds to the proposal, the parties complete negotiations, and the membership ratifies the CBA will the West Pilots actually be affected by USAPA’s seniority proposal — whatever USAPA’s final proposal ultimately is.
Additionally, USAPA’s final proposal may yet be one that does not work the disadvantages Plaintiffs fear, even if that proposal is not the Nicolau Award.
“in light of the well-established federal policy of avoiding unnecessary interference in the internal affairs of unions and according considerable deference to the interpretation and application of a union’s rules and regulations”.[think about that for a bit]. By deferring judicial intervention, we leave USAPA to bargain in good faith [with the company] pursuant to its DFR, with the interests of all members— both East and West — in mind, under pain of an unquestionably ripe DFR suit, once a contract is ratified.
“a claim can be brought only after negotiations are complete and a “final product” has been reached.”
In the grievance context, too, we have required that a final outcome be reached before allowing a suit based on a union’s allegedly violative conduct that led to the decision.
And the 9th cited the SCOTUS standard of DFR that must be met:
“[T]he final product of the bargaining process may constitute evidence of a breach of duty only if it can be fairly characterized as so far outside a ‘wide range of reasonableness,’that it is wholly ‘irrational’ or ‘arbitrary.’
Silver may well think that she can establish an injunction that the 9th saw fit to dismiss. Silver may think that there is no internal union dispute, contrary to the findings of the 9th. Silver may think that a looming merger is really not a contingency that the 9th could have had in mind as a reason not to judicially intervene before a contract is ratified.
Who knows how the internal union dispute will work itself out, or if courts will feel the need to intervene in spite of the 9th's clear choice not to.
Who knows how it will work out, but if I were a judge I would not make a decision that contradicts the 9th, unless I were on the SCOTUS
.
No really, it is.
