AOL update
02-28-2013, 04:42 AM
#212
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Joined APC: Apr 2008
Posts: 3,240
That said, I don't expect the APA to propose a DOH list. I expect them to propose a slotted list that uses all methods throughout the list to place their pilots in the best position, then that we will go to arbitration. If they do, I won't take it personally. We'll see.
02-28-2013, 01:34 PM
#213
Gets Weekends Off
Joined APC: Nov 2011
Position: A320 Capt
Posts: 5,299
I don't make too many predictions because I don't like to be wrong, but I will be very, very surprised if Nicolau ends up on our arbitration board.
BTW, have you actually put pencil to paper and figured what a Nicolau type award with AA would look like for you?
02-28-2013, 01:37 PM
#214
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Joined APC: Nov 2011
Position: A320 Capt
Posts: 5,299
That is not at all what the Nicolau award looked like. It was kind of the path we took to get there(where you guys already had your panties in a wad), but the Nicolau gave the top slots to the east, then pretty much slotted one for one until he got to the "furloughed" of May 2005 and stapled them.
You junior over there sure gloss over the screwing your senior guys got from Nicolau. Oh well, I guess it's a case of "Yeah, but what have you done for me lately?"
You junior over there sure gloss over the screwing your senior guys got from Nicolau. Oh well, I guess it's a case of "Yeah, but what have you done for me lately?"
02-28-2013, 02:14 PM
#215
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BTW, have you actually put pencil to paper and figured what a Nicolau type award with AA would look like for you?
02-28-2013, 02:30 PM
#216
Gets Weekends Off
Joined APC: Nov 2011
Position: A320 Capt
Posts: 5,299
If you welcome a Nicolau type of award you definitely have not put pencil to paper.
Why would AOL be a part of arbitration in any manner other than the west pilots that are a part of it? They are nothing but a LLC. Can I start Army of Xerxes and get a seat at the table? It doesn't cost much to form a LLC here in NC, might be a good investment.
Based on your previous track record of predictions, I discount these.
02-28-2013, 02:57 PM
#218
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Position: 747-400 Captain
Posts: 12,487
Carl
02-28-2013, 04:09 PM
#219
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Thread Starter
Joined APC: Apr 2008
Posts: 3,240
Leonidas 2/28
Three months ago, US Airways VP of Legal, Mr. Paul Jones, wrote a four-page letter to the National Mediation Board explaining US Airways’ neutrality with regard to East/West seniority. His letter captures the essence of the seniority dispute, and most importantly, it correctly frames the dispute in the context of the law. If you haven’t done so already, we think it is imperative for all pilots to read this letter. You can download a pdf copy here.
As you read the letter, keep in mind that the one event subsequent to this letter is the ratification of the MOU.
Mr. Jones’ letter succinctly explains the reality of the East/West dispute:
“In pursuing its seniority initiative generally and as a basis for its protocol proposal, USAPA continues to ignore or misinterpret what the courts have clearly stated concerning its (and, by extension, the Company’s) risk of DFR breach. For example, in his November 21 letter, Mr. Wilder included a quoted phrase surgically extracted from Judge Silver’s recent opinion to support the union’s view that US Airways and USAPA are now free to agree upon ‘any seniority regime they wish.’ What Mr. Wilder neglects to mention, however, is that just a few lines later in that same opinion, Judge Silver declared that, ‘by discarding the result of a valid arbitration and negotiating for a different seniority regime, USAPA is running the risk that it will be sued by disadvantaged pilots when the new collective bargaining agreement is finalized. An impartial arbitrator’s decision regarding an appropriate method of seniority is powerful evidence of a fair result. Discarding the Nicolau award places USAPA on dangerous ground.”
The concluding paragraph in Mr. Jones’s letter provides a clear synopsis of the Company’s concern over liability in facilitating, aiding or abetting USAPA in its non-Nicolau quest:
“At all times throughout this ordeal, the Company has steadfastly remained neutral on the seniority issue, insisted that it will not take sides, and required that seniority be settled in a manner that does not expose a tentative agreement to the risk of being declared illegal or US Airways to potential liability.”
The Company is clear that they desire either a judicially sanctioned seniority list, OR a process to resolve East/West seniority in a manner which insulates them from liability. What the Company is saying is that the Nicolau is the list unless a court says otherwise, OR the West pilots voluntarily relinquish their rights to the Nicolau.
This seniority dispute has dragged on for more than five years. While the East was locked into LOA93, it is understandable why the Company was happy to consign our dispute to the procedural labyrinth in the courts. All of that has changed with the prospect of merging with American – now the Company would surely like to have a resolution, but keep in mind their overriding concern is liability. Ask yourself, “How does the Company achieve a speedy resolution to East/ West seniority without exposing themselves to liability?”
The answer lies in the quoted sentence above: “...the Company... required that seniority be settled in a manner that does not expose a tentative agreement to the risk of being declared illegal or US Airways to potential liability.” In other words, the Company is explaining that another way out for them is to get the West pilots to accept an alternative to the Nicolau. Despite their claim of neutrality the company continues to advocate positions favorable to East interests, “a seat at the table,” a “3-way,” and even a “do-over.” As infuriating as this may sound to the West pilots, it stems from a legal concept captured by Judge Wake:
“The West Pilots remain entitled to a union that will not abrogate the Nicolau Award without a legitimate purpose. Any waiver of that right must be ‘consensual.” [Judge Wake, Doc 593, pg. 49. (Emphasis added.)]
It is no surprise, then, that lately there has been some discussion about West pilots being afforded a “seat at the table” for a “three-way.” We have also heard that it is “imperative” that the West retain “merger counsel” now, with the rumor that some senior managers at US Airways are even suggesting a particular attorney. Leonidas will not comment on that hearsay, because we have a straightforward message to US Airways, USAPA (and the APA when they become the bargaining agent):
Seniority between America West and US Airways pilots is settled. There will be no do-over. We will not concede or waive that right. We will oppose any process that can be viewed as waiving our rights. Our rights will not be extinguished for the company’s convenience. History shows what happens when pilots waive their rights; just ask the TWA pilots. There is no other option. We will insist that only two lists be presented in the McCaskill-Bond process: the Nicolau and APA’s. Any other path will be challenged in federal court.
The arbitrated Nicolau Award is a fair award based on the facts and equities of our 2005 merger. The former America West pilots won the DFR case against USAPA based on the merits. USAPA’s Legitimate Union Purpose (LUP) arguments were presented to George Nicolau, two Federal District Court judges, and one jury. None found their arguments persuasive. Our breach of DFR case remains as formidable as ever.
West pilots have been united in the defense of the Nicolau Award for nearly five years. The West pilots are a twice-certified class represented by Marty Harper of Polsinelli Shughart as our legal counsel. It has been a long and expensive campaign caused only by the East pilots’ refusal to abide by their own agreement to accept a Final and Binding Arbitrated Seniority Award. The recently ratified MOU did nothing to alter our seniority rights. Given the fact the West has shouldered an incredible financial burden over the last five years to fund its own litigation (actually being forced to pay for both sides of the dispute through USAPA dues), and the fact that the West has reaped ZERO benefits from the AWA/US Airways merger, it seems improbable to believe there would be a single West pilot interested in any path other than direct enforcement of the Nicolau. We have paid dearly while waiting for our case to ripen to the satisfaction of the Ninth Circuit. Judge Bybee explained it quite well in his dissenting opinion:
“No one disputes that the West Pilots are now suffering, and will continue to suffer, 'continuing uncertainty and expense'...” [Addington v. USAPA, 9th Cir., pg. 8023]
The Ninth Circuit told us we must wait for a ratified contract before we can sue to implement the Nicolau. That time has now come, so we are preparing to go back to court one last time. As part of the preparations for a possible return to federal court, West counsel recently sent “Litigation Hold” letters to USAPA (click here), US Airways, (click here) and the APA (click here). While the three letters differ somewhat, an excerpt from the letter written to USAPA helps to indicate where potential litigation is headed:
“Please hold, maintain, preserve and be prepared to disclose all materials now existing, or that will be created in the future, that are related to pilot seniority integration, dating back to the issuance of the Nicolau Award on May 1, 2007. This notice applies to (but is not limited to) all materials related to: (1) discussions and/or negotiations of those aspects of the February 2013 Memorandum of Understanding Regarding Contingent Collective Bargaining Agreement (“MOU”) that relate to seniority integration (including draft language that was not adopted); (2) designating participants in all MOU seniority integration processes, including participants in the process of negotiating the Seniority Integration Protocol referenced in the MOU; (3) actual discussions and/or negotiations of, and implementation of, that Seniority Integration Protocol; (4) communications with US Airways pilots and American Airlines pilots on all issues related to seniority integration whether in their capacity as union representatives or otherwise; and (5) communications related to protecting all aforementioned materials.”
As has been discussed, even if US Airways, USAPA, or perhaps even the APA should seek another path around our monolithic West group, those efforts to subvert our certified class counsel or the litigation class representatives will fail. It is because of the vast support from the West pilot group that we have been successful in defending the Nicolau.
Where might you be today without this fight to protect your seniority? Even more downgrades, line-holders turned reserve, and furloughs were all part of USAPA’s master plan for West pilots. There is no better return on your 2012 profit sharing dollar than protecting your career. The list of highest contributors will be published April 11, 2013 we hope to see your name on it.
We are preparing for the end game. Stay informed, stay focused, and keep the goal in sight.
Sincerely,
Leonidas, LLC
Click here to Contribute
As you read the letter, keep in mind that the one event subsequent to this letter is the ratification of the MOU.
Mr. Jones’ letter succinctly explains the reality of the East/West dispute:
“In pursuing its seniority initiative generally and as a basis for its protocol proposal, USAPA continues to ignore or misinterpret what the courts have clearly stated concerning its (and, by extension, the Company’s) risk of DFR breach. For example, in his November 21 letter, Mr. Wilder included a quoted phrase surgically extracted from Judge Silver’s recent opinion to support the union’s view that US Airways and USAPA are now free to agree upon ‘any seniority regime they wish.’ What Mr. Wilder neglects to mention, however, is that just a few lines later in that same opinion, Judge Silver declared that, ‘by discarding the result of a valid arbitration and negotiating for a different seniority regime, USAPA is running the risk that it will be sued by disadvantaged pilots when the new collective bargaining agreement is finalized. An impartial arbitrator’s decision regarding an appropriate method of seniority is powerful evidence of a fair result. Discarding the Nicolau award places USAPA on dangerous ground.”
The concluding paragraph in Mr. Jones’s letter provides a clear synopsis of the Company’s concern over liability in facilitating, aiding or abetting USAPA in its non-Nicolau quest:
“At all times throughout this ordeal, the Company has steadfastly remained neutral on the seniority issue, insisted that it will not take sides, and required that seniority be settled in a manner that does not expose a tentative agreement to the risk of being declared illegal or US Airways to potential liability.”
The Company is clear that they desire either a judicially sanctioned seniority list, OR a process to resolve East/West seniority in a manner which insulates them from liability. What the Company is saying is that the Nicolau is the list unless a court says otherwise, OR the West pilots voluntarily relinquish their rights to the Nicolau.
This seniority dispute has dragged on for more than five years. While the East was locked into LOA93, it is understandable why the Company was happy to consign our dispute to the procedural labyrinth in the courts. All of that has changed with the prospect of merging with American – now the Company would surely like to have a resolution, but keep in mind their overriding concern is liability. Ask yourself, “How does the Company achieve a speedy resolution to East/ West seniority without exposing themselves to liability?”
The answer lies in the quoted sentence above: “...the Company... required that seniority be settled in a manner that does not expose a tentative agreement to the risk of being declared illegal or US Airways to potential liability.” In other words, the Company is explaining that another way out for them is to get the West pilots to accept an alternative to the Nicolau. Despite their claim of neutrality the company continues to advocate positions favorable to East interests, “a seat at the table,” a “3-way,” and even a “do-over.” As infuriating as this may sound to the West pilots, it stems from a legal concept captured by Judge Wake:
“The West Pilots remain entitled to a union that will not abrogate the Nicolau Award without a legitimate purpose. Any waiver of that right must be ‘consensual.” [Judge Wake, Doc 593, pg. 49. (Emphasis added.)]
It is no surprise, then, that lately there has been some discussion about West pilots being afforded a “seat at the table” for a “three-way.” We have also heard that it is “imperative” that the West retain “merger counsel” now, with the rumor that some senior managers at US Airways are even suggesting a particular attorney. Leonidas will not comment on that hearsay, because we have a straightforward message to US Airways, USAPA (and the APA when they become the bargaining agent):
Seniority between America West and US Airways pilots is settled. There will be no do-over. We will not concede or waive that right. We will oppose any process that can be viewed as waiving our rights. Our rights will not be extinguished for the company’s convenience. History shows what happens when pilots waive their rights; just ask the TWA pilots. There is no other option. We will insist that only two lists be presented in the McCaskill-Bond process: the Nicolau and APA’s. Any other path will be challenged in federal court.
The arbitrated Nicolau Award is a fair award based on the facts and equities of our 2005 merger. The former America West pilots won the DFR case against USAPA based on the merits. USAPA’s Legitimate Union Purpose (LUP) arguments were presented to George Nicolau, two Federal District Court judges, and one jury. None found their arguments persuasive. Our breach of DFR case remains as formidable as ever.
West pilots have been united in the defense of the Nicolau Award for nearly five years. The West pilots are a twice-certified class represented by Marty Harper of Polsinelli Shughart as our legal counsel. It has been a long and expensive campaign caused only by the East pilots’ refusal to abide by their own agreement to accept a Final and Binding Arbitrated Seniority Award. The recently ratified MOU did nothing to alter our seniority rights. Given the fact the West has shouldered an incredible financial burden over the last five years to fund its own litigation (actually being forced to pay for both sides of the dispute through USAPA dues), and the fact that the West has reaped ZERO benefits from the AWA/US Airways merger, it seems improbable to believe there would be a single West pilot interested in any path other than direct enforcement of the Nicolau. We have paid dearly while waiting for our case to ripen to the satisfaction of the Ninth Circuit. Judge Bybee explained it quite well in his dissenting opinion:
“No one disputes that the West Pilots are now suffering, and will continue to suffer, 'continuing uncertainty and expense'...” [Addington v. USAPA, 9th Cir., pg. 8023]
The Ninth Circuit told us we must wait for a ratified contract before we can sue to implement the Nicolau. That time has now come, so we are preparing to go back to court one last time. As part of the preparations for a possible return to federal court, West counsel recently sent “Litigation Hold” letters to USAPA (click here), US Airways, (click here) and the APA (click here). While the three letters differ somewhat, an excerpt from the letter written to USAPA helps to indicate where potential litigation is headed:
“Please hold, maintain, preserve and be prepared to disclose all materials now existing, or that will be created in the future, that are related to pilot seniority integration, dating back to the issuance of the Nicolau Award on May 1, 2007. This notice applies to (but is not limited to) all materials related to: (1) discussions and/or negotiations of those aspects of the February 2013 Memorandum of Understanding Regarding Contingent Collective Bargaining Agreement (“MOU”) that relate to seniority integration (including draft language that was not adopted); (2) designating participants in all MOU seniority integration processes, including participants in the process of negotiating the Seniority Integration Protocol referenced in the MOU; (3) actual discussions and/or negotiations of, and implementation of, that Seniority Integration Protocol; (4) communications with US Airways pilots and American Airlines pilots on all issues related to seniority integration whether in their capacity as union representatives or otherwise; and (5) communications related to protecting all aforementioned materials.”
As has been discussed, even if US Airways, USAPA, or perhaps even the APA should seek another path around our monolithic West group, those efforts to subvert our certified class counsel or the litigation class representatives will fail. It is because of the vast support from the West pilot group that we have been successful in defending the Nicolau.
Where might you be today without this fight to protect your seniority? Even more downgrades, line-holders turned reserve, and furloughs were all part of USAPA’s master plan for West pilots. There is no better return on your 2012 profit sharing dollar than protecting your career. The list of highest contributors will be published April 11, 2013 we hope to see your name on it.
We are preparing for the end game. Stay informed, stay focused, and keep the goal in sight.
Sincerely,
Leonidas, LLC
Click here to Contribute
02-28-2013, 04:18 PM
#220
Banned
Thread Starter
Joined APC: Apr 2008
Posts: 3,240
Why would AOL be a part of arbitration in any manner other than the west pilots that are a part of it? They are nothing but a LLC. Can I start Army of Xerxes and get a seat at the table? It doesn't cost much to form a LLC here in NC, might be a good investment.
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