Originally Posted by
crzipilot
So with all your research I would assume you agree that the seniority list lives within the CBA. I would imagine too that you are aware that for the NIC to be given life there had to be a JCBA which was voted on separately by both sides and passed by both sides. This never happened. I would assume you knew that there was a Judge that made a ruling that the NIC did NOT have to be used within the MOU. I would assume you know why the DAL and NWA merger was structured how it was along with UAL and CAL? The way our was, either side had the ability to infinitely block the completion of the merger between the pilots. It was thought of the back stop (surprising the West wanted it this way) And their lawyer explained to them they were carrying all the risk not sitting down and negotiating a settlement to our "little" problem.
Please show me where the CBA is that codified the NIC award?
Seniority rights are not vested; they are created through the collective bargaining process and derive their scope and significance from union contracts.
United Food & Commercial Workers Int'l Union v. Gold Star, 897 F.2d 1022, 1026 (10th Cir.1990);
Schick v. N.L.R.B., 409 F.2d 395, 398 (7th Cir.1969);
Ferrara v. Pacific Intermountain Exp. Co., 301 F.Supp. 1240, 1243 (N.D.Ill.1969). Thus, a union is free to renegotiate the method of allocating employee seniority rights, so long as the union's position does not offend the duty of fair representation owed to all employees.
Barton Brands, Ltd. v. N.L. R.B., 529 F.2d 793, 798-99 (7th Cir.1976);
Papcin v. Dichello Distrib., Inc., 697 F.Supp. 73, 80-81 (D.Conn.)
aff'd, 862 F.2d 304 (2d Cir.1988).
When a new collective bargaining agreement abridges established seniority rights of a minority of employees, "the [u]nion must show some objective justification for its conduct beyond that of placating the desires of the majority of the unit employees at the expense of the minority." Barton Brands, 529 F.2d at 798-99.
I believe the latest Silver case answered this question....
I bolded the part above because it makes my point exactly. Judge Silver had no new seniority regime to measure against when she ruled. If you look at an extreme example, the new list at AMR could have all the West pilots stapled to the TOP of the list. If that occurs, then what would the West pilots have to complain about, what would their damages be?
The new list does not have to be the exact Nicolau. That is why I say "as good or better" for the West pilots. There was an agreement to merge the AAA/AWA lists through ALPA merger policy. That was done and the list was accepted by the company per the negotiated agreement. Now a new agreement is negotiated where the West pilots are in the minority. The company and the APA must have an "objective justification for its conduct". That is what the courts say.
So you are right, seniority lives in the contract. Contracts have to be fair to the minority as well as the majority. At some point there will be a list to measure that fairness. If that is not the Nicolau list then people are going to have some 'splainin to do. Maybe the courts will buy whatever story they come up with. Maybe this will drag out for another decade of court actions. Or, everyone can just use the Nicolau award, "strong evidence of a fair result" (as said by Judge Silver) and avoid this mess.
My guess is that "strong evidence of a fair result" will win.