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."
Written by Ted Reed in Charlotte, N.C.
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