It has occurred, not at an airline that I know of, but at other unions. The cases are cited by USAPA in the original Addington trial, it is just too much work to find those exact cases, the transcripts are literally thousands of pages. One read was enough.

The case that is quoted most often in the USAPA case is Rakestraw vs. ALPA. It wasn't an arbitrated list, but that doesn't matter. The issue is can you take a seniority list that exists, no matter what the origin of that list, and change it. That is the situation we have at both Delta and at US Air. The origin of the list does not matter, arbitration, negotiation, mediation, coin flipping, random number generator. United had a list, everyone had a number just like us and then the list was changed.

Rakestraw et. al. sued ALPA over the duty of fair representation, just like you say they would. In the jury trial, Rakestraw won, citing that ALPA had not provided fair representation to the scabs.

The appeal was where the case changed. The appeals court ruled that ALPA had indeed treated the scabs unfairly, but that punishing scabs made the entire union stronger, more capable of bargaining for new contracts, by increasing the penalty for scabbing. In short, while a group was harmed, the union as a whole was improved and thus they provided fair representation to the group as a whole.

In the Addington vs. USAPA case, the DPA lawyer has argued that Rakestraw applies in the following context. Since Rakestraw has shown that a current seniority list, no matter how it was formed, can be renegotiated,, USAPA merely has to show a greater union good that increases the benefits to the whole in order to avoid a DFR loss. In this case, the DPA lawyer says that Date of Hire is the "gold standard" in integrating seniority lists, therefore the entire group will benefit from using the "gold standard". That is the legal basis of the DPA lawyer.

You ask the question of DFR, which is the critical question of the entire case. Changing a seniority list is a zero sum game and so it is quite easy to prove who wins and who loses in a renegotiation. That is why the lists are rarely changed and why I have repeatedly said it is quite difficult to do.

However, the DPA lawyer insists that it is easy, he has collected massive amounts of dues over the last few years pushing that very prospect. I would love to hear the DPA lawyer say, publicly, that it is not possible to change an arbitrated award, as that would completely contradict his position to date. Carl can try to create some legal distinction between a group that is operationally integrated and a group that is not operationally integrated, but the courts have repeatedly ruled that there is no difference. Once the list is accepted by management then it is the list. No do-overs allowed, just renegotiation.

To throw one other monkey wrench in the equation, USAPA was warned by a lawyer (not the DPA lawyer but another) that they needed to conceal the purpose of changing the seniority list. This fact was exposed at the federal trial as the founder of USAPA had violated the lawyer client privilege by posting the email from the lawyer on a public website. So the DPA lawyer knows that DPA would have to conceal any plan to change the seniority list and that he needs to leave no physical evidence of that concealment.

That said, I have no idea what DPA's goals are. They change with every update of their website. Thus SOME pilots can think that DPA is the vehicle to change the seniority list. Carl has admitted that this is true. We don't really know USAPA's goals because they are written in electronic ink and change frequently.

That is USAPA's goal regarding contract negotiations (at least until they change it). Anyone that thinks that they are going to magically restore C2K hasn't read their material. SOME think DPA will get them a 50% pay raise but even DPA realizes that you have to analyze the company's finances and determine what is possible to achieve. Just makes me laugh when people say "ALPA better ask for the moon or I'm sending in my card." To whom? The guys that say they have to consider the company's ability to pay?