From MARTY HARPER PLLC
12817 North 14th Drive
Phoenix, Arizona 85029
46787816.6
January 21, 2014 Marty Harper
(602) 738-8007
mharperpllc@gmail.com
Via Electronic Mail
TO Brian O’Dwyer
General Counsel, USAPA
O’Dwyer & Bernstien, LLP
Paul O’Dwyer Way
52 Duane Street
New York, New York 1007
bodwyer@odblaw.com
Re: Seniority Integration Process
Brian,
Judge Silver’s order unequivocally finds that the certified bargaining representative for
the West Pilots, whether it be USAPA or APA, must “‘make every effort to see that [the West
Pilots’] are given extensive consideration, and that their interests are fully and fairly represented’
during seniority integration.” Order at 21:9 to 21:10 (Doc. 298). Although she narrowly found
that USAPA did not breach the duty of fair representation owed to the West Pilots in agreeing to
the MOU, she cautioned that USAPA’s current position on its ability to represent East and West
Pilots in the upcoming seniority integration process with American is “unwise” and that she has
“serious doubts that USAPA will fairly and adequately represent” the West Pilots. Id. at 20-21.
Once again, we urge USAPA to act as a responsible union and acknowledge the inherent conflict
it has with the West Pilots on the issue of seniority. As Judge Silver clearly understood,
USAPA’s appointment of two West Pilots to its Merger Committee does not satisfy its
obligations to the West Pilots or somehow negate the inherent conflict between USAPA and the
West Pilots on the issue of seniority.
The West Pilots maintain, as they have since the MOU was ratified, that the only way
they can be “fully and fairly represented” in any seniority integration process is by an
independent committee of their own choosing. Judge Silver’s order establishes that this is the
only clear path forward for USAPA to avoid breaching its duty of fair representation to the West
Pilots. Indeed, any attempt to negotiate a seniority list that ignores the Nicolau Award or the
West Pilots interests thereunder would violate the extensive consideration that the West Pilots’
interests are to be afforded under McCaskill-Bond and Judge Silver’s order. As Judge Silver
cautioned USAPA back in October 2012, “[a]n impartial arbitrator’s decision regarding an
appropriate method of seniority integration is powerful evidence of a fair result.” Case 2:10-cv-
01570-ROS, Doc. 193.
As detailed in our initial memorandum to the Court regarding McCaskill-Bond, filed last
May, the West Pilots propose that USAPA establish separate East and West merger committees
to arbitrate the seniority of former US Airways pilots. A decision by a neutral arbitrator, with
each side represented by a committee and counsel of their own choosing, is the only way for
USAPA’s to satisfy its DFR obligations to the West Pilots.
Accordingly, the West Pilots propose the following specifics for this arbitration:
1. The parties to this arbitration shall be a committee of 3 to 5 East Pilots
appointed by USAPA or the East BPR members to represent East Pilot
interests (the “East Committee”) and a committee of 3-5 pilots appointed by
the three Phoenix BPR Members – John Scherff, David Simmons and
Roger Velez to represent the West Pilot interest (the “West Committee”).
2. USAPA shall bear all expenses of both sides in this arbitration process
equally, including payment of the arbitrator’s fees and expenses, reasonable
attorneys’ fees, pilot flight-pay loss, and other expenses reasonably
incurred. The West Pilots have already been paying a merger surcharge on
their dues membership that would more than cover this expense.
3. The outcome of this arbitration shall be final and binding on all parties, and
any successors to such parties that come about through merger, change of
bargaining representative, or union election. In addition, pursuant to the
MOU, the outcome of this arbitration shall be final and binding without
being put to a ratification vote by USAPA’s membership or USAPA’s
Board of Pilot Representatives.
4. The arbitration ground rules shall be as follows:
a. Issue: “In connection with the 2005 Transition Agreement and the
McCaskill-Bond process for integration of the US Airways and
American pilots described in Paragraph 10 of the Memorandum Of
Understanding Regarding Contingent Collective Bargaining
Agreement (“MOU”), shall the single integrated pilot seniority list for
the US Airways pilots (East and West) be the seniority list attached to
the Nicolau Award (as advocated by the West Committee), or shall it
be the Date-of-Hire seniority list (as advocated by the East
Committee)?”
b. Arbitrator’s Jurisdiction: The arbitrator’s jurisdiction shall be limited
to selecting one of the two options described in the above statement of
the issue.
c. Arbitration Procedures: Except as provided otherwise below, the
arbitration procedures shall be consistent, to the greatest extent
possible, with the procedures set forth in MOU Paragraph 20.
i. Parties/Participants: The parties shall be the West Committee,
as represented by counsel of their choice, the East Committee
as represented by counsel of their choice, and New American
to the extent that it needs to protect its rights under the TA or
the MOU. The Allied Pilots Association shall have observer
status.
ii. Arbitrator: As described in MOU Paragraph 20, the arbitrator
shall be Richard Bloch or Ira Jaffe, depending on who has the
earliest availability. In the event that Mr. Bloch and Mr. Jaffe
are both unable to complete such arbitration within 30 days of
agreement to this proposal, the arbitrator shall be Dana
Edward Eischen if he is available sooner than Mr. Bloch and
Mr. Jaffe.
iii. Arbitration Schedule: Subject to the arbitrator’s availability,
the arbitration hearing shall commence no sooner than ten (10)
days after agreement to this proposal, but as soon as possible
thereafter. The arbitrator’s decision shall be issued no later
than 30 days after the first day of hearing, unless the West
Committee, East Committee, and New American agree
otherwise.
iv. Final and Binding Nature of Arbitration Decision: The
arbitration decision shall be final and binding on USAPA, its
members and officers, and any successor(s) thereto, and on the
West Pilot Class, and on its and their agents. The arbitration
decision shall be final and binding on New American and any
successor(s) thereto.
5. The pilot seniority order decided in this arbitration shall be the seniority list
used to integrate the US Airways pilots with the American Airlines pilots
throughout the MOU seniority integration process, including drafting the
Integration Protocol, integration negotiation, and arbitration if needed, as
described in Paragraph 10 of the MOU and that, in all stages of such
negotiation and arbitration, the West Pilots shall have separate representation
of their own choosing.
We believe that this can happen soon after such committees are established and funded.
Given APA’s filing for single carrier status, it is in the interest of all US Airways pilots to
resolve the East/West seniority integration issue prior to APA taking over.
Finally, USAPA must not ignore that Judge Silver also ruled that “when USAPA is no
longer the certified representative, it must immediately stop participating in the seniority
integration.” Id. at 21:11-to 21:12. We are confident that neither APA nor New American will
assist USAPA in violating a court order or otherwise breaching its duty of fair representation to
the West Pilots.
In sum, USAPA must accept that the time has finally come to resolve the East/West
dispute. We believe it is in the interest of all US Airways pilots, both East and West, that it
happen before APA takes over, when it will then be up to APA to resolve this issue in a fair and
equitable manner. The West Pilots, therefore, urge USAPA to proceed in the manner proposed
herein. Nothing contained in this letter is a waiver of the West Pilots’ rights to appeal Judge
Silver’s ruling.
We look forward to an early, positive response.
Very Truly Yours,
Marty Harper
