Dear Members,
Recently a letter was circulated on company email wherein a member asked attorney Lee Seham, AMFA's outside council, to look into the decision made by the IBT and its’ rank and file Seniority Integration Committee, to follow the Consent Decree and integrate the post-merger seniority list using Date of Hire (Company Service) for the purpose of furlough/recall. The February 3, 2014 opinion letter of AMFA’s outside council attempts to answer the question “Should the 1975 Final Consent Decree allow junior Continental Airlines (“CAL”) Mechanics to leapfrog over CAL Mechanics with greater classification seniority on the existing CAL seniority lists by crediting junior Mechanics with company seniority accrued in non-Mechanic positions”. Mr. Seham says “The answer is no”.
Mr. Seham’s opinion states that,
“It would be disruptive and unprecedented to engage in any exercise that would re-order the relative position of employees within either of the pre-existing lists. Even assuming the continued applicability of the Final Consent Decree to the pre-merger UAL mechanic group, Allegheny-Mohawk principles would only require company seniority be applied to determine relative position of CAL mechanics vis-à-vis their UAL counterparts. Company seniority should not be used, however, to re-order the relative position of CAL mechanics within the existing CAL seniority list.”
He further states,
“The consideration of changes to the seniority order within pre-existing lists can lead to a multitude of evils, including: the loss of finality of prior seniority decisions and agreements, the perpetuation of contentious litigation, and the disruptive churn that comes with unforeseen shifts in personnel.”
There are several flaws and misleading comments detected in Mr. Seham’s letter. First, CAL employees already have a Company Service date reflecting time accrued in non-Mechanic positions. Further he only addresses whether or not the pre-existing CAL and/or Air Micronesia (CMI) seniority lists should be altered prior to full integration of the UAL, CAL and CMI seniority lists using Company Service (i.e.: Consent Decree) seniority. He never addresses how he would eliminate, in its entirety, the provisions of the 1975 Consent Decree requiring that Company Service be used for furlough and recall purposes. He also fails to address what the time, cost and likelihood of success would be to this membership to pursue such action in court. Perhaps Mr. Seham chose to ignore these matters because even he knows that the time and cost of initiating such a court proceeding are a great burden and are far outweighed by the fact that changing or revoking the Consent Decree likely would require the agreement of all of the parties involved, including the IAM, which has now ratified amalgamated agreements that preserve the terms of the Consent Decree.
Mr. Seham’s framed question is misleading and downright deceptive. It ignores the fact that the CAL and CMI members themselves are the ones who requested that they be credited with Company Service lost under previous Agreements (which would obviously result in the reordering of the pre-existing CAL and CMI Company Service seniority lists); specifically for time on furlough and/or unpaid medical leave. These requests are similar to the ones that the CAL IAM employees made. As discussed below, the CAL IAM employees also asked to have their seniority re-credited. CAL and CMI employees believe crediting such Company service time made for an “even playing field” with the UAL employees because the employees at UAL never lost any Company Service for time on furlough, and were protected while on an unpaid medical as opposed to the 90 days of protection for their CAL and CMI counterparts. Further strengthening the IBT’s position was the fact that these favorable adjustments were obtained in a negotiating forum rather than a long drawn out court and/or arbitration process as Mr. Seham implies this group should enter into.
Only once in his letter does Mr. Seham suggest an alternative seniority integration method from the one proposed by the IBT and its’ Seniority Integration Committee. He does so, as he does several times in his letter, by stating:
“Even assuming, arguendo, that the UAL side must keep in place a forty-year old consent decree, even a modicum of creativity could devise integration approaches that prevent and unfair advantage to the UAL side without diluting the classifications seniority of CAL Mechanics.”
Let’s examine his opinion a bit deeper for a second. First, he assumes “in arguendo,” that the Consent Decree applies. Beware of lawyers prattling Latin phrases. His “assumption” is nothing more than a slick lawyer’s way of building a straw man so that he can knock it down. It is nothing more than a legal short cut allowing Mr. Seham to attack the IBT’s logic as it applies to the Consent Decree without admitting that this premise could be true. Mr. Seham is so busy quoting Latin and trying to impress his readers with his use of strange phrases that he hopes that the reader will not notice that he never even once explains how he would have the Consent Decree changed or removed. He instead ignores that crucial legal component and jumps right to his one and only “substantive” alternative integration method. Mr. Seham offers that
“One approach would be to create a primary list consisting of UAL and CAL mechanics integrated on a company seniority basis, which list would be referenced to make an initial determination of furloughees on the basis of inverse company seniority”.
This approach offered by Mr. Seham his is not an “alternative suggestion” at all. Please note this is exactly what the Consent Decree requires! But Mr. Seham does not stop there. He continues,
“When, however, inverse company seniority would indicate that a CAL Mechanic would be the next furloughee, the parties would reference the pre-merger CAL seniority list to determine the next pre-merger CAL furloughee based on relative classification seniority. Furloughs would proceed through the pre-merger CAL classification seniority list until reaching a pre-merger CAL Mechanic with higher company seniority than the next pre-merger UAL mechanic on the integrated list”.
While Mr. Seham’s alternative suggestion might look appealing on its surface, it does nothing to address the inequity established by the different past practices that resulted in a reduction of company seniority to many CAL and CMI mechanic and related. The number of CAL and CMI mechanic and related affected by varying past practice far exceeds the number of mechanics whose company service time is actually greater than their classification/craft seniority. That is to say, there are many more CAL and CMI mechanic and related employees whose highest seniority is class/craft than those who have higher company seniority dates.
Furthermore, Mr. Seham’s suggestion to furlough employees outside of company seniority (Consent Decree) prospectively could certainly lead to the same, “multitude of evil” and “perpetuation of contentious litigation”, he fears on page three of his opinion letter. If the IBT and the Seniority Integration Committee adopted Mr. Seham’s suggestion, the CAL employees who were furloughed would invoke the Consent Decree; argue that the Consent Decree applies to the amalgamated bargaining unit and that the furlough violates his new rights under the Consent Decree. And the litigation would never end. Maybe this is why Mr. Seham does not discuss the time, cost and likelihood of success in petitioning the federal court to remove or change the Consent Decree. Mr. Seham’s suggestion is better suited for a lawyer’s dream world, not the real world. In the absence of the Consent Decree, it would be hard to disagree with the notion that dovetailing seniority lists based on classification/craft seniority is a fair and equitable – if not the most fair and equitable -- way to integrate seniority lists. However, to pretend, even “in arguendo,” that the Consent Decree doesn’t exist would be a disservice to its membership.
Even more misleading are Mr. Seham’s comments about the IAM. He writes that,
“Classification seniority has historically been the basis for integrating the Mechanics of two respective carriers in the context of an airline merger. Labor unions such as the IAM and the Aircraft Mechanics Fraternal Association (AMFA) have made classification-based seniority systems a core element of their collective bargaining objectives.”
Contrary to Mr. Seham’s attempt to tout the IAM true-believing, card-carrying classification seniority integrators, this is simply not the case as it relates to UAL and the Consent Decree. On January 25, 2013 the IAM and UAL entered into a Letter of Agreement (LOA) regarding a seniority integration process for IAM represented employees in the Fleet Service, Passenger Service and Stores craft and classifications. In the LOA the parties acknowledge that pursuant to the McCaskill-Bond statue the IAM’s policy applies to seniority integration. The LOA also provides in part that:
1. Any integrated seniority list must comply with the Final Amended Consent Decreeissued March 2, 1995.
2. The parties agreed “to appoint Joshua Javits as a neutral to mediate and to make recommendations to the IAM to resolve all issues consistent with IAM integration policy”.
IAM District Lodge 141 also formed two Seniority Integration Committees (similar to those elected by IBT members). The first to identify seniority integration issues of significance to pre-merger UAL and Mileage Plus employees. The second committee was tasked to do the same for the CAL and CMI employees. In addition to meeting with the two committees neutral Committee member Josh Javits also posted on the District Lodge 141 website an invitation to all interested employees to submit written comments or concerns regarding seniority integration (same concept as the IBT surveys). Over 1,000 members submitted comments. Many requested personal adjustments to restore seniority that was lost, in some cases decades ago, under agreements or policies applicable to that time. Most of these comments, requesting re-crediting, were from CAL IAM employees who had their seniority adjusted in a manner similar to the way the CAL and CMI mechanic and related’ seniority was adjusted.
Neutral Javits states, in his recommendation paper that the IAM has consistently applied its internal policy in mergers where it was or became the certified representative of the same crafts at two merging carriers. He goes on to cite several mergers where the IAM has integrated seniority by date of hire (company service) and/or entry date (classification/craft seniority). He states “the IAM has consistently advocated and applied its seniority integration based on date of hire and/or entry date whenever it has been in a position to legally require it”.
In Neutral Javits “Discussion” portion of his paper he states/recommends many things to the IAM, including but not limited to the following:
1. It must be acknowledged that seniority integration is a “zero sum” endeavor, with one employee’s seniority gain, being another employee’s loss.
2. For all the above reasons, going forward under the Joint Collective Bargaining Agreement (JCBA) each employee will need two seniority dates (1) a “Bid Seniority Date” to be used for all bidding purposes except vacation and (2) a “Company Seniority Date” to be used for furlough/recall purposes and vacation bidding.
3. Seniority accrual and retention were handled differently in the past for the different work groups at the pre-merger carriers. Numerous requests were made to adjust the past seniority accruals to mitigate the differences in seniority dates among the groups resulting from differences in past seniority practices. Unsurprisingly, commenter’s only requested retroactive adjustments that would increase their seniority, no one advocated for negative adjustments to their own seniority in order to equalize the past practices at the pre-merger carriers. Although I understand why employees would advocate for such adjustments to seniority, the seniority integration process should not be a vehicle to re-write history.
This is exactly what the IBT and its’ rank and file committees proposed. Only, the IBT and its’ committees honored the requests of the CAL/CMI mechanic and related to re-credit lost Company Service time for time on furlough and unpaid medical leaves of absence. Your committee found these adjustments necessary to create a level playing field, or “equalize the past practice” as Mr. Javits puts it, prior to integrating the lists by Company Service for the purpose of furlough and recall.
As you know, prior to and during their work, opinions from IBT council and two separate unbiased non- IBT affiliated law firms (see attached) were gathered for the seniority integration committee to review. The committee was also assisted in its’ work by mediator Ralph Berger (see attached opinion letter) in the same way as the IAM utilized neutral Javits to mediate their sessions. The conclusion of the deliberations was twofold. First, it would have been a lengthy process to argue in Federal Court that the decree no longer applies. And second, in the opinion of those three attorneys and the mediator, there was little hope of the court overturning the original decree. It was concluded that to pursue such action would have been a waste of time and the member’s money. There were also additional discussions around how a neutral may rule. The decision was that, absent a ruling from the court, an arbitrator would be bound by the decree. Faced with this knowledge the IBT and the Local's determined there was no benefit to be had for the membership by attempting to amend the decree in court, and neither was it advantageous to arbitrate the matter.
In conclusion it is easy to argue, as Mr. Seham does, in his letter, that the IBT’s position is "hogwash" when he is sitting on the outside with no skin in the game. Mr. Seham is quick to point out what he believes to be flaws in the IBT’s opinion, but he engages in an exercise of intellectual dishonesty to tout his agenda by ignoring the Consent Decree and the difficulties and pitfalls associated with trying to get a federal court to remove it or change it. You are all, of course, entitled to research every possible avenue as it relates to things as important as seniority integration and the like. In fact we appreciate that you do. However, in doing so we would respectfully request and suggest you get all the facts before jumping on the band wagon of a group and it’s Pied Piper that may be moving to solidify their own agenda.
Thank you for your time concerning this matter if you have any questions please call your Local Union representatives.
