Wednesday, March 24, 2010

Law Firm Loses; Workers Pay the Price

Seham Hands Management the Club

In this installment - which explores DPA's law firm choice for legal advice and counsel - we will introduce you to the two court cases that Seham lost for its client, the AMFA membership at Atlantic Coast Airlines, and consequently lost for all newly represented airline labor unions.

The law firm that has assured USAPA supporters that overturning the Nicolau Award and negotiating a new seniority list will be a "slam-dunk" is the same firm whose loss of two important cases established a precedent that hamstrings every airline union attempting to organize an unrepresented craft or negotiate a first agreement with an airline.

Should pilots be confident that the attorneys counseling USAPA can adequately advise and defend them during negotiations, as a divided group faces an experienced management on their first USAPA contract? And how meaningful is their assurance that they will successfully defend USAPA and its members against the inevitable duty-of-fair-representation lawsuit that will be brought if USAPA imposes a new seniority list over the West pilots' objections?

Here's what happened when this firm represented the Aircraft Mechanics Fraternal Association (AMFA), an independent union of airline technicians and related employees, after it organized the mechanics at Atlantic Coast Airlines (ACA) in 1994.

AMFA was certified as exclusive representative for ACA mechanics on March 11, 1994, and within weeks, the union, represented by USAPA's counsel, began contract negotiations with management. In August, AMFA declared an impasse and asked the National Mediation Board to appoint a mediator.

By October, a collective bargaining agreement had still not been reached, and no mediation sessions had been held. At that point, the airline announced unilateral changes in the mechanics' rates of pay, rules, and working conditions. Sick leave would no longer be factored into overtime pay, and the lead mechanic's position was replaced by a managerial position.

AMFA filed suit against ACA in U.S. District Court, asking for a preliminary injunction against making the changes. Several other airline unions previously had won cases preventing management from making unilateral changes in pay, rules, and working conditions during the negotiating period.

AMFA's complaint was dismissed. The court found that management had no status quo obligations untilit reached an agreement with AMFA, and it was free to impose concessions. The union then appealed the decision to the Second Circuit Court of Appeals, which upheld the District Court's decision. This ruling established a terrible legal precedent that has allowed carriers free rein to impose unilateral changes on their employees prior to a first contract.

But that's not all. After losing the above argument, AMFA sued ACA again, this time seeking a declaratory judgment that, if the carrier was not obligated to honor the status quo before a first agreement, the union was free to engage in self-help-in other words, to call a strike. USAPA's counsel also lost that case-and the appeal. The Appeals Court ruled that the employees, in contrast to the employer, had a status quo obligation, and the court declared that

the right to strike does not arise in the absence of employer bad faith. Here, the Airline did what the law permitted it to do. . . . As we noted in AMFA I ..., the Union has not alleged that the Airline bargained in bad faith, and the Union has continued to refrain from making such allegations. Obviously there has been no court finding of bad faith. Accordingly, the Union cannot legally strike.

The upshot is that DPA's firm managed to create a "heads, I win; tails, you lose" situation for management when dealing with a newly organized union. This set of precedents has been used as a club by every carrier against union drives by allowing them to say they are free to impose concessions until the union achieves a first contract, and that the union cannot strike in response.

These precedents help the firm in the management portion of its practice: But there is now a string of AMFA decisions that has undermined every union in the industry.
In previous installments of this series, we have noted that SSM&P flip-flops between union and management in choosing its clients. In light of its history with AMFA, the question remains: Who does the Seham firm really work for - management or you? The answer is clear.