March 5, 2013
Leonidas Update


Dear


On February 27, 2013, APA President Keith Wilson published a message to the APA membership addressing concerns regarding seniority integration with US Airways pilots (you can read the message here)

In this message, President Wilson clearly does not echo USAPA’s sentiment that Date-of-Hire (DOH) integration is the “Gold Standard.” Indeed, he more closely aligns with Arbitrator George Nicolau’s statement that, “each case turns on its own facts,”, reminding the membership that, although date-of-hire might be a valid integration method in certain circumstances, it has not been used for pilots since 1986- over a quarter century ago:

“Bear in mind that date of hire is not the only way to integrate seniority lists, and in recent years has not even been a common method. The last arbitrated date of hire integrated seniority list arose out of the 1986 Northwest/Republic merger. In that case, the arbitrator found that the date of hire list could be fair and equitable only with 20-year fences between the two pilot groups. The result was 20 years of arbitrated disputes over what the award meant and how it applied. It was, therefore, generally considered to have been an operational disaster. Since the Northwest/Republic arbitration, the paradigm has shifted in favor of integrated lists based on ratios reflecting the number of jobs and other equities “brought to the merger” by each group, with fences applied for as long as necessary to keep the operation fair until the integrated list can operate fairly by itself. Career expectations at each carrier along with fleet disposition and future delivery schedules are among the important factors in constructing such a list. While each merger and subsequent seniority integration is unique in its own way, the recent integrations at Delta/Northwest and soon-to-be United/Continental illustrate this decision-making methodology.”

The American pilots’ concern regarding even the possibility, (no matter how remote) of a date-of-hire integration is well founded. USAPA recently restated its commitment to a date-of-hire seniority integration by claiming that it will only pursue a date-of-hire method of integration pursuant to its “constitutional mandate.”

A quick look at date of hire lists for the time period from 1973-1985 shows the following:
Year AA US
1973 2 1
1974 0 2
1975 1 0
1976 2 1
1977 9 15
1978 65 140
1979 77 89
1980 10 77
1981 6 199
1982 0 122
1983 0 113
1984 270 254
1985 582 571
Totals 1024 1584


Date-of-Hire would give the US Airways pilots 1584 out of the first 2608 slots, or 61%, despite the fact that American has twice the number of pilots than US Airways. The vast majority of the top 2600 slots (57%) would go to the US Airways pilots and place many US Airways First Officers ahead of American wide-body Captains. Also, these positions are AA wide-body positions while most of the US Airways pilots fly narrow-body equipment.

It is easy to understand why President Wilson and most American Airlines pilots probably don’t see eye-to-eye with USAPA relating to its fictitious “gold standard” proclamations regarding date-of-hire as the only fair and equitable means of pilot integration:

“...while the APA leadership looks forward to negotiations, we are planning on the assumption that the seniority lists may ultimately be integrated through arbitration under the McCaskill-Bond guidelines.”

The American pilots’ concern with respect to the inequity of date-of-hire is something with which the former America West pilots are painfully familiar. The date-of-hire list which many East pilots have been pursuing for the last seven years would place 85% of the West pilots on the bottom 25% of the combined list, while East pilots, long-furloughed at the time of the merger, would be placed ahead of active and continuously employed America West Captains.

However, we would like to remind President Wilson and the APA membership that arbitration proceedings are only effective if all parties involved have the integrity to honor their commitment to the process. The fact that a mutually agreed upon seniority integration arbitration was conducted, and the resulting seniority list presented to, and accepted by, the Company has been of no concern for USAPA. To add insult to injury, US Airways management has used USAPA’s actions as a convenient excuse to keep both pilot groups on bankruptcy-era contracts.

President Wilson’s statement is clear that a date-of-hire style integration would likely be deemed unfair to the American pilots and therefore the seniority integration process will most likely be decided through an arbitration with the final result published two years from now.

Considering the APA’s apparent position, as well as the fact that USAPA’s proposed US Airways DOH list disadvantages the West pilots in a way similar to how a DOH integration would disadvantage the American pilots, it only stands to reason that the APA and the management of the “New American Airlines” would be wise to reject any list other than the Nicolau for the US Airways pilots. The Nicolau Award was itself the product of an arbitration process identical to that now called for by federal law and was based on the merits of the 2005 America West-US Airways merger. East pilots should not expect the AA pilots to honor their likely agreement to arbitrate a seniority list and honor the result while concurrently turning a blind eye toward USAPA's concerted effort to avoid the result of a prior arbitration the East pilots previously agreed would be binding. That would be the height of hypocrisy. While that may be lost on USAPA, it probably won't be lost on the pilots of the “New American Airlines.”

USAPA's very own “Professional Negotiator” (and former TWA Merger Counsel), Roland Wilder, once testified under oath while being deposed on November 6th, 2006 when his firm sued the former TWA MEC Chairman to obtain payment for his legal services. In response to question about the TWA/AA integration therein asking, “[a]nd, in your opinion, did this integration fall outside the range of fairness and equity[?],” Mr. Wilder stated:

“Let me give you just a little background of those two terms and I'll see if this helps if I may. The term fair and equitable has never been defined anywhere. What happens is that each of the pilot groups, first of all, try to explore a satisfactory solution to seniority integration first without counsel, then with the aid of counsel, and typically, under the so-called Allegheny-Mohawk format if they cannot reach agreement, the matter goes to an impartial arbitrator for a determination, and the arbitrator's determination is fair and equitable, but fairness and equity turn on the circumstances of each case, so what might be fair and equitable in one situation is not fair and equitable in another situation. All I can say in answer to your question is, that I was searching for a seniority integration that was considerably more equitable to the TWA pilots than the one that was finally implemented by the Allied Pilots Association and American Airlines. And -- But the ultimate determination of what's fair and equitable would have been the arbitral decision which never occurred.” Page 63

We think that was very well stated, Mr. Wilder. It is exactly why ALPA was eventually found guilty of violating the TWA Pilots' Duty-of-Fair-Representation (DFR) by coercing the TWA pilots to surrender their rights to an arbitrated process. Certainly USAPA, and the APA when it becomes the bargaining agent, would likewise be guilty of violating the DFR should they choose to abandon an arbitration which already occurred; they are opposite sides of the same coin. As Mr. Wilder stated, “And – But the ultimate determination of what's fair and equitable would have been the arbitral decision which never occurred.” In our case it did occur and, as defined by both Mr. Nicolau and Mr. Wilder, resulted in the “...ultimate determination of what's fair and equitable...” Even Judge Silver comports with the arbitral sentiments of Mr. Wilder when she stated in her October 11, 2012 Order, “An impartial arbitrator’s decision regarding an appropriate method of seniority integration is powerful evidence of a fair result.” Many clearly see the warning signs plastered mile after mile along the integration highway, and all parties need to understand that ANY attempt to abandon or modify the Nicolau Opinion and Award places all parties on dangerous ground. It will not be tolerated.

Lastly, this afternoon, attorneys for the West Class filed our “Opposition to Motion of US Airline Pilots Association to Expedite Briefing Schedule and for Priority Hearing Date.” (click here). We particularly enjoyed this sentence from our filing:

“USAPA is a rogue, lame-duck union that was effectively voted out of existence by its members on February 8, 2013, when they voted to ratify the MOU."

When reading this document and contemplating USAPA's motion (click here), ask yourself, “why would USAPA, which claimed a great victory in Judge Silver's ruling back in October 2012, be so eager to expedite the appeal and why would the West oppose expediting the appeal of a ruling USAPA believes we lost?” We'll save you the trouble: Judge Silver's ruling is highly problematic for USAPA and mostly positive for the West pilots for many reasons we have discussed before. Most of what Judge Silver wrote clearly confirms the legal position of the West and undermines USAPA's ultimate goal. In fact, it was US Airways, (and not the West pilots) that filed the “Notice of Appeal” regarding Judge Silver's ruling in the first place as the outcome did nothing to solve the company’s claimed “Hobson's Choice.”

In any case, minutes after the Ninth Circuit received our “Opposition” to USAPA's Motion to Expedite the appeal proceedings, the court expedited its Order (click here) nearly as quickly as the jury found USAPA guilty of DFR in the Addington trial. The Ninth denied USAPA's request outright and restated its original schedule. That's fine by us

We are preparing for the end game. Stay informed, stay focused, and keep the goal in sight.

Sincerely,

Leonidas, LLC
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President's Message
March 6, 2013
President's Message



Fellow Pilots,

Last month the pilots of US Airways voted overwhelmingly to ratify the Memorandum of Understanding for a merger with American Airlines. This historic decision will lead to better wages, benefits, and working conditions for us all. While a final JCBA will be negotiated with the New American Airlines that can bring even more improvements, the MOU itself provides $1.6 billion in economic improvements for you over the next six years.

The vote on the MOU was impressive. Some 95% of US Airways pilots turned out, with 76% voting in favor of it. Every domicile overwhelmingly supported the MOU, including Phoenix where 98% of Phoenix-based pilots voted in favor of it. Despite this overwhelming support for the MOU, a few represented by Leonidas LLC are threatening the American Airlines/US Airways merger that was endorsed so strongly by the Phoenix-based pilots.

Eleven days after the MOU was ratified by the pilots of US Airways and five days after the boards of American Airlines and US Airways unanimously approved and announced the merger, the attorney for Leonidas LLC threatened “to file a third round of litigation and seek an injunction of the merger process until we can get a court order directing that the only [seniority] list that can be used is the Nicolau.” The next day, the same attorney wrote a second letter, stating that Leonidas LLC “anticipates litigation and hereby requests that the US Airline Pilots Association... place a litigation hold on certain materials that will be discoverable in such litigation.” Similar letters were sent to APA and US Airways.

Unfortunately these are not idle threats. In the past five years, Leonidas LLC has spent a significant amount of time and money suing USAPA, only to have their cases dismissed.

While Leonidas LLC claims to represent all West pilots; I do not think that is the case. Why? Because 98% of Phoenix-based pilots voted in favor of the MOU and the process outlined for JCBA negotiations and seniority integration. Just 11 days after their near unanimous vote, the attorney for Leonidas LLC threatened to derail the deal. No other domicile showed greater support for the MOU. In fact, only 24 out of 1041 PHX pilots voting said no to the MOU.

We cannot stand idly by while a handful of individuals seek to derail an MOU that US Airways pilots overwhelmingly support. That’s why your BPR today approved the filing of a lawsuit in the American Airlines bankruptcy court to prevent Leonidas LLC from interfering with the bankruptcy. This is not an action against the Phoenix-based pilots, nor is it a course of action that anyone desires. Rather, we have been forced to file this action to protect the rights of all pilots – West and East – who overwhelmingly voted in favor of the MOU and the process to move us all collectively forward.

Despite our filing in the bankruptcy court today, we will continue to represent all pilots – East and West alike. Pilots from all domiciles are on our BPR and important committees such as NAC and Grievance. They continue to find common ground and have learned how to work together in a process that benefits us all.

On my first day in office, I appointed a West pilot, Ken Stravers, to the Merger Committee, based on the recommendation of Phoenix-based pilots. Unfortunately, before the BPR could approve Ken’s appointment, the same West pilots changed their mind and withdrew their recommendation. Despite this, I am still committed to appointing Phoenix-based pilots to important committees. We are stronger when we work together.

It’s no secret that the Company has exploited our divisions for far too long. Over the past 10 months we were able to turn down the volume, unite the parts into the whole, and work as one union toward our mutual goal of industry standard wages, benefits and working conditions. That is my pledge to you. Despite the noise being generated by a few, USAPA will continue to represent all pilots and ensure that this union moves in a direction that benefits us all.


Regards,


Gary Hummel