Missouri Senators Clare McCaskill and Christopher Bond, concerned about the seniority integration treatment of employees at Trans World Airlines ('TWA') following its purchase by American Airlines and integration of the two airlines' operations and workforce, introduced legislation to guarantee labor protective provisions to airline employees with respect to seniority integration for certain covered transactions. The legislation, known as the McCaskill-Bond statute, was signed into law in December 2007 and is codified at 49 U.S.C. The statute applies when two or more air carriers are involved in a 'covered transaction,' described as: • A transaction for the combination of multiple air carriers into a single air carrier; and which • Involves the transfer of ownership or control of— • • 50 percent or more of the equity securities (as defined in section 101 of title 11, United States Code) of an air carrier; or • 50 percent or more (by value) of the assets of the air carrier. § 42112 (b)(4). When such a covered transaction 'results in the combination of crafts or classes that are subject to the Railway Labor Act,' 'sections 3 and 13 of the labor protective provisions imposed by the Civil Aeronautics Board ('CAB' or the 'Board') in the Allegheny-Mohawk merger (as published at 59 C.A.B. 45) shall apply to the integration of covered employees of the covered air carriers.' 1 In short, these Allegheny-Mohawk Labor Protective Provisions ('LPPs') require that the carrier make provisions 'for the integration of seniority lists in a fair and equitable manner,' including negotiation with union representatives and binding arbitration in covered transactions.

The participants in this negotiation/arbitration process are the affected employee groups, and the carrier or carriers involved. The interests of unionized employee groups are represented by their union, while interests of nonunionized employee groups may be represented by employee committees or by the carrier. By incorporating Sections 3 and 13 of the Allegheny-Mohawk LPPs, McCaskill-Bond establishes that it is the duty of the surviving or combined carrier to provide the fair and equitable seniority list integration process. The carrier can satisfy this duty by accepting a voluntarily negotiated or arbitrated list from the employee group parties.

To the extent that the employee group parties do not voluntarily present such a list to the carrier, however, it is the carrier's duty to engage in arbitration with those groups as provided for in Section 13. If the covered transaction involves employee groups represented by the same union, the statute provides that the union's internal merger policies apply exclusively, with no carrier involvement, except as to whether it will accept and implement the result of the integration process ( i.e., the combined seniority list). Likewise, any additional LPP or other merger-related requirements in a CBA that are consistent with the 'protections afforded by' Sections 3 and 13 are not directly affected by the statute. Background of Seniority List Integration in Airline Mergers Labor Protective Provisions Issued by the Civil Aeronautics Board. As part of its economic regulation of air carriers, the CAB had jurisdiction over proposed mergers from its creation in 1940 through deregulation in 1984. Following the practice of the Interstate Commerce Commission ('ICC'), the CAB would often condition approval of route transfers and mergers on the implementation of certain LPPs.

The goal of these provisions was to 'ward off labor strife that could impede or delay a route transfer or merger, or detrimentally affect a carrier's stability or efficiency.' Braniff Master Exec. Council of the APA v.

ALPA Administrative Manual Section 41 Part 4 B reads in part:!6. ALA Policy Manual Section 10. AIR LINE PILOTS ASSOCIATION. All changes to this manual will be posted as an “Update” on the Provider Portal under “Guides and Resources” for that given year. Member's Essence ID OR Medicare Health Insurance Claim Number (HICN), (typically 9 digits and an alpha). Integrated Denial Notice is included in this manual in the “Forms” section.

C.A.B., 693 F.2d 220, 223 (D.C. 1982) ('Braniff MEC') (summarizing history of LPP use by the CAB). In 1972, the CAB established a set of LPPs in the Allegheny-Mohawk case.

Allegheny-Mohawk, 59 C.A.B. 19, 45 (1972), App. Between 1972 and the passage of the Airline Deregulation Act of 1978, the CAB used the Allegheny-Mohawk LPPs as the standard set of provisions in airline mergers. When deregulation became imminent, the CAB began deferring labor protection issues to collective bargaining, unless there were 'special circumstances' or the CAB determined that LPPs were 'necessary to prevent labor strife that would disrupt the nation's air transportation systems.'

The Department of Transportation assumed jurisdiction over airline mergers in 1984 and maintained the CAB's policy of deferring labor protection issues to collective bargaining based on the theory that LPPs were inconsistent with deregulation. Sections 3 and 13 of the Allegheny-Mohawk LPPs. Section 3 of the Allegheny-Mohawk LPPs established the fair and equitable standard for seniority integration, stating. Insofar as the merger affects the seniority rights of the carriers' employees, provisions shall be made for the integration of seniority lists in a fair and equitable manner, including, where applicable, agreement through collective bargaining between the carriers and the representatives of the employees affected. In the event of failure to agree, the dispute may be submitted by either part for adjustment in accordance with section 13.

Allegheny-Mohawk, 59 C.A.B. Section 13 mandated arbitration of disputes with employees that arose in this process or under any of the other provisions of the Allegheny-Mohawk LPPs. 2 Section 13 provides: • In the event that any dispute or controversy (except as to matters arising under section 9) arises with respect to the protections provided herein which cannot be settled by the parties within 20 days after the controversy arises, it may be referred by any party to an arbitrator selected from a panel of seven names furnished by the National Mediation Board for consideration and determination. The parties shall select the arbitrator from such panel by alternatively striking names until only one remains, and he shall serve as arbitrator. Expedited hearings and decisions will be expected, and a decision shall be rendered within 90 days after the controversy arises, unless an extension of time is mutually agreeable to all parties.

The salary and expenses of the arbitrator shall be borne equally by the carrier and (i) the organization or organizations representing employee or employees or (ii) if unrepresented, the employee or employees or group or groups of employees. The decision of the arbitrator shall be final and binding on the parties. • The above condition shall not apply if the parties by mutual agreement determine that an alternative method for dispute settlement or an alternative procedure for selection of an arbitrator is appropriate in their particular dispute.

No party shall be excused from complying with the above condition by reason of having suggested an alternative method or procedure unless and until that alternative method or procedure shall have been agreed to by all parties. Neither the LPPs nor the CAB's interpretation of them provided any specific criteria for what constituted a 'fair and equitable' integration process.

Where applicable, 'fair and equitable' included 'agreement through collective bargaining' between the carriers and the representatives of the employees affected. Authorize Code Autocad 2004 Error. Allegheny-Mohawk, 59 C.A.B. The CAB acknowledged that 'no single way could be devised that would meet all situations. Whatever the method used. Some employees will be disadvantaged and some will gain.' Nat'l Airlines Acquisition, Arbitration Bd., 97 C.A.B.

570, 572 (1982) ('NAA II'). The cases under Sections 3 and 13 make clear that the obligation to provide the fair and equitable seniority list integration process was the obligation of the carrier. The employee groups had no obligation to negotiate or arbitrate with each other over any disagreement of seniority list integration. As the CAB explained in Great Northern Pilots Association: Sections 3 and 13 impose upon the carrier a duty to integrate seniority listings fairly and equitably and a duty to submit certain disputes between it and its employees to arbitration. They impose no comparable duties on the consolidating employee groups. 795, 799-800 (1981) (denying order to arbitrate on the basis that the Board's 'responsibility to order arbitration under section 13. Does not arise until an integrated list has been presented to the carrier and the carrier has proceeded to act in a manner arguably inconsistent with its duty to integrate seniority lists fairly and equitably and submit to arbitration if it and the employees fail to agree.'

) (emphasis in original). Thus, employee groups, whether represented or not, had no obligation to arbitrate among themselves.

CAB and Judicial Interpretations of Section 3. Under the Allegheny-Mohawk LPPs, the unions (or other representatives) of the merging employees often agreed among themselves on the method of seniority list integration and presented that proposal to the carrier for approval. See, e.g., Nat'l Airlines Acquisition, Arbitration Bd., 95 C.A.B. 584, 594 (1982) ('NAA I') (noting the board's 'long-held and judicially approved view' on such arrangements); Northeast Master Exec.

CAB, 506 F.2d 97, 100-01 (D.C. 1974) (noting that the board's reliance on intra-employee negotiations 'is recognition of a practical means to reach a result meeting the statutory standard'). When the Air Line Pilots Association International ('ALPA') represented pilots at both carriers before the merger, ALPA applied its internal policies to produce an integrated seniority list.

See, e.g., Allegheny-Mohawk Merger Case (Petition of Kingston), Order 79-11-53 (Nov. The Board consistently held that a carrier's acceptance of a seniority integration agreement negotiated in this manner satisfied the obligations created by Section 3, even without active involvement by the carrier in the process. See, NAA I, 95 C.A.B. Although Section 3 gave the CAB jurisdiction over the seniority integration process, the CAB limited this oversight to negotiations between the merging carriers and employees, not to those between the merging employee groups (or their pre-merger collective bargaining representatives). See, e.g., Great Northern Pilots Ass'n, 91 C.A.B. 795, 799 (1981) (noting that disputes between employee groups 'do not come within the long-established purview of section 13(a)').

Further, under Section 3, the carrier had to negotiate seniority integration with both merging unions. Where a carrier negotiated with and entered into a seniority integration agreement with only one of the unions, the CAB and courts routinely held that the LPPs took precedence over the negotiated seniority rights of one union, even if they were vested in existing contracts.

See, e.g., NAA I, 95 C.A.B. CAB, 445 F.2d 891 (2d Cir. CAB and Judicial Interpretations of Section 13.

Section 13 was consistently interpreted by the CAB to require arbitration between the carrier and the employee groups or their representatives, not between the employee groups or union representatives themselves. See, e.g., Allegheny-Mohawk Merger Case (Petition of Kingston), Order 79-11-53 (the Section 13 'arbitral duty is imposed on the carrier to provide for peaceful settlement of merger-related disputes between the carrier and employees to avoid, for example, service disruptive strikes.'

) When seniority integration was negotiated between the unions, the CAB had no authority to order arbitration until the carrier was presented with the relevant agreement. Great Northern Pilots Ass'n, 91 C.A.B.

However, when an order for arbitration was proper, CAB policy was to do so for any dispute 'at least arguably' covered by the LPPs. World Airways, Inc.

CAB, 683 F.2d 554 (D.C. 1982) (approving this board practice). Although unions and management were typically the parties in Section 13 arbitrations, other employee groups and individual employees could be granted party status or allowed to otherwise participate. See, e. Native Instruments Komplete 5 Crack Serial Numbers. g., Southern Emps.

Republic/ALEA, 102 C.A.B. 616 (1983) (describing how seniority integration was negotiated by an 'employee committee' established for that purpose without union involvement); Pan Am-TWA Route Exchange, Arbitration Award, 85 C.A.B. 2537 (1980) (noting that three individual engineers were parties to arbitration); NAA I, 95 C.A.B. At 584 (denying dissenting group 'full party status' but noting that they'd been given the opportunity to participate in the LPP arbitration).

Thus, as indicated by the language of the LPPs, unrepresented employees still had rights to fair and equitable seniority integration and binding arbitration to resolve integration disputes under the Allegheny-Mohawk LPPs. The CAB's review of a validly negotiated or arbitrated seniority integration was extremely limited. The Board would review arbitrated awards only to determine whether the award 'dr[ew] its essence' from the LPPs, 'in other words, whether it rest[ed] on grounds consistent with the letter and purpose of the provisions.'

NAA II, 97 C.A.B. At 573 (internal quotation marks omitted). Even this narrow review was limited to challenges made by parties to the arbitration, which included carriers, employees, and employee representatives who took advantage of their opportunity to participate in the arbitration (as opposed to challenging the results of it after the fact). Where individual employees challenged negotiated agreements or arbitrated agreements under the Allegheny-Mohawk LPPs, the CAB consistently deferred to the results of seniority integration negotiations either between unions or between unions and management.

See, e.g., Nat'l Airlines Acquisition, 84 C.A.B. 408 (1979), Great Northern Pilots, 91 C.A.B. At 800 ('when employees challenge a freely negotiated seniority list that has been accepted by the carrier, we refuse to examine the negotiation process 'absent a showing of bad faith or claim that the procedures were otherwise improperly conducted.' ') Challenges by dissatisfied members to their union's seniority integration determination could be maintained only by demonstrating bad faith or unfair representation. See Nat'l Airlines Acquisition, 84 C.A.B. 408 (citing Delta Air Lines, Inc.

CAB, 574 F.2d 546, 550 (D.C. Internal Union Merger Policy. Where one union represented both employee groups affected by a transaction prior to a merger, the CAB held that a carrier's acceptance of an integrated seniority list produced pursuant to that union's internal merger policy satisfied the obligations under Section 3. The McCaskill-Bond statute explicitly provides that the union's internal policy applies in this circumstance. While several unions have internal merger policies, most of the litigation has involved ALPA Merger Policy.

Under that policy, each Master Executive Council ('MEC') at its respective merging carriers typically chooses two or three merger representatives who are given total authority to negotiate seniority integration on behalf of their MEC, with the overall process subject to the supervision of ALPA's President and Executive Council. ALPA Administrative Manual § 45 (2009). Seniority integration agreements do not require ratification, but the integrated seniority list is generally part of a combined CBA, which does. To avoid having seniority list concerns artificially distort combined CBA negotiation and ratification, ALPA promotes in the application of its most recently revised Merger Policy the resolution of a combined CBA prior to the completion of the seniority list integration process (as was the case in the recent Delta-Northwest and Pinnacle-Mesaba and Colgan mergers and as ALPA is attempting to do with regard to the United-Continental merger). The MEC merger representatives must attempt to negotiate an agreement, but should they fail to do so, the ALPA merger provisions provide for mediation and for binding arbitration.

The ALPA Merger Policy in particular differs from the Allegheny-Mohawk LPPs primarily in three ways. First, in an effort to more comprehensively protect pilot career interests in various forms of transactions, the ALPA guidelines define mergers subject to the policy more broadly, to include both actual combinations and situations in which there is a 'reasonable probability' of integration of operations between multiple ALPA carriers. The definition also focuses on the effect of the integration on employees by defining a merger as when 'there is or will be a need for an integrated seniority list' and joint representation on other labor issues. In contrast, the Allegheny-Mohawk definitions limited the term 'merger' to actual combinations and focused on the operations of the carriers, specifically whether their joint actions served to 'unify, consolidate, merge or pool in whole or in part their separate airline facilities or any of the operations or services previously performed by them through such separate facilities.' Second, the ALPA Merger Policy differs from the LPPs in the role it envisions management will play in negotiations.

The Allegheny-Mohawk LPPs specifically create an obligation for management to provide for integration of seniority lists in a fair and equitable manner, and acceptance of a list produced under internal union policies was construed to satisfy this obligation. ALPA policy, on the other hand, is governed exclusively by the involved ALPA MEC merger committees, under the supervision of ALPA's President and Executive Council, and forbids management participation in the process except insofar as the merger committees are required to seek management acceptance of the list produced under ALPA's procedures. Finally, while the LPPs do not provide any criteria for determining how lists should be integrated, ALPA Merger Policy provides specific factors that must be considered in determining what qualifies as a 'fair and equitable' process of seniority integration, which include: career expectations, longevity, status, and category. 3 The guidelines state, however, that these factors are not exhaustive, and that they are to be considered 'in no particular order and with no particular weight.'

Seniority Integration in the Absence of McCaskill-Bond While seniority integration in airline mergers often engenders some controversy, the experiences of US Airways and America West and American Airlines and TWA highlight the potential difficulties associated with seniority list integration. US Airways and America West. In May 2005, America West and US Airways merged as US Airways exited bankruptcy protection.

At that time, the legacy America West pilots ('West Pilots') were fewer (about 1,900) than the legacy US Airways pilots ('East Pilots') (about 5,100). America West was also the younger of the two airlines, and the West Pilots had generally been hired more recently than the East Pilots. Both groups were represented by ALPA. The two ALPA MECs and the two air carriers entered into a Transition Agreement, which created three conditions that had to be met before operational integration of the airlines: (1) creation of an integrated seniority list; (2) a single CBA; and (3) a single FAA operating certificate.

The Transition Agreement provided that the ALPA internal merger policy would be used for integration, and that the integrated list would be subject to ratification as part of the new CBA. After the East and West Merger Representatives could not reach a negotiated agreement, 4 the parties selected George Nicolau as a mediator. When mediation failed, a final and binding arbitration was held before Mr. In May 2007, Mr. Nicolau issued an award (1) placing about 500 senior East Pilots at the top of the seniority list because of their specialized experience with wide-body aircraft that America West had not flown prior to the merger, (2) placing about 1,700 furloughed East Pilots at the bottom of the list and (3) then blending the rest of the pilots generally according to relative positions on their original seniority lists (the 'Nicolau Award').

The East Pilots were dissatisfied with the award. They petitioned ALPA to revisit it, and ALPA attempted to reach a compromise. In the end, however, the East MEC withdrew its representatives from the Joint Negotiating Committee, freezing negotiations for a single CBA.

ALPA nonetheless submitted the Nicolau Award to the merged carrier, and the seniority list was accepted. As a result of this seniority integration process, the US Airline Pilots Association ('USAPA') was created by certain East Pilots, for the express purpose of blocking implementation of the Nicolau Award as required under ALPA Merger Policy.

In November 2007, the National Mediation Board ('NMB') certified a representation election. In April 2008, the NMB certified USAPA as the pilot representative for East and West Pilots and extinguished ALPA's certification. USAPA presented a different seniority proposal to the carrier based on date of hire, with West Pilots generally at the bottom. The proposal also included a number of conditions detrimental to West Pilots. On September 8, 2008, six individual West Pilots sued USAPA and the carrier in federal court on a breach of duty of fair representation and breach of contract claim.

5 Addington v. US Airline Pilots Ass'n, 588 F. The district court dismissed the case against the carrier for failure to exhaust administrative remedies. After class certification in the case against USAPA, a jury found that USAPA had breached its duty of fair representation to the West Pilots.

The district court then held a bench trial on the remaining equitable issues, ultimately granting injunctive relief to the West Pilots. US Airline Pilots Ass'n, No. CV 08-1633-PHX-NVW, 2009 WL 2169164, at *30 (D. July 17, 2009). USAPA appealed to the Ninth Circuit, which overturned the decision on ripeness grounds in June 2010. US Airline Pilots Ass'n, 606 F.3d 1174, 1189 (9th Cir. The Ninth Circuit reasoned that 'neither the West Pilots nor USAPA can be certain what seniority proposal ultimately will be acceptable to both USAPA and the airline as part of a final CBA' and that '[n]ot until the airline responds to the proposal, the parties complete negotiations, and the membership ratifies the CBA will the West Pilots actually be affected by USAPA's seniority proposal—whatever USAPA's final proposal ultimately is.'