USAPA - Pilots First
US Airline Pilots Association
P.O. Box 57
Essington, PA 19029
September 22, 2007
Dear Fellow East and West US Airways Pilots:
This week, pilots received an unsigned letter from ALPA National titled “Just the facts 2.†This document referenced comments and legal statements made by the law firm retained by USAPA. These statements made by our USAPA attorney were carefully made and give credit to each legal source, the court decisions, and why in fact he believes that these statements have merit and why we are likely to prevail.
Most of all, at USAPA we are angry at the contention of this anonymous author of this ALPA publication that attempting to realign a seniority list on a date of hire (DOH) basis is in fact, a basis for a Duty of Fair Representation lawsuit. DOH is a basic labor tenet, recognized by the Supreme Court as being in the interest of labor in general, and having a long history of status in labor issues. It is a self defining term; it has a recognized and easily defendable basis.
Consider this quote “The final product of a bargaining process may constitute evidence of a DFR violation “only if it can be fairly characterized as so far outside a ‘wide range of reasonableness’ that it is wholly ‘irrational’ or ‘arbitrary.†’†ALPA v. O’Neill, 499 U.S. 65, 78 (1991). In the O’Neill case, for example, the Supreme Court held that ALPA committed no DFR violation even if, in retrospect, the reinstatement agreement negotiated on behalf of striking Continental pilots left them in a worse position than if ALPA had simply surrendered and voluntarily terminated the strike. Id. at 79.
USAPA is not attempting some bizarre punishment of the West pilots; we are upholding a long labor standard of Date of Hire as the basis for seniority integrations. As shown above in O’Neill, it is recognized by the Supreme Court as having a valid basis. If we were attempting to punish the west or arrange a seniority list by some other bizarre method we would be in a DFR violation. No, Date of hire meets the “reasonableness†standard, thus DFR would be difficult to prove.
The ALPA letter quotes the judges in the Rakestraw case as saying;
“[A] union may not take away the seniority of some employees for no reason other than that the losers have too few votes to affect the outcome of an intra-union election . . . “
“[A] union may not juggle the seniority roster for no reason other than to advance one group of employees over another. The change must rationally promote the aggregate welfare of employees in the bargaining unit.â€
This unsigned ALPA publication fails to point out that the courts recognized Date of Hire as a normal seniority situation and by upholding DOH the courts contend that a union is not attempting to juggle the seniority of one group over another. The Federal Judges in the Rakestraw case upheld the re-ordering of the seniority list. They put the strike breakers on the bottom and re-instated the strikers on the basis of Date of Hire. The courts recognize Date of Hire as a legitimate goal and one supported by most labor organizations. Date of Hire has such a long history of legal standing in labor law, that the legal issue is with the current ALPA policy. ALPA itself has deviated from this historical practice of Date of Hire preferences for seniority integrations. Today, it is ALPA that must prove its current methodology is reasonable.
The unsigned ALPA national letter continues:
“Third, if you think ALPA policy is a problem now; see what it looks like when you’re outside the union.â€
The unknown author contends that we should be careful of what happened to the TWA pilots.
TWA was on the verge of shutting down and they agreed to the proposed seniority integration by the non-ALPA American Airlines pilots. They gave up their seniority integration rights. They were not treated fairly. The US Airways pilots did not give up their rights, our contract is still in place and we are a profitable company. And by the way, it was the TWA ALPA pilots who lost out in that case. They were defended by Roland Wilder, who our ALPA MEC has hired in our case. Will he do the same type of job for us as he did for the TWA pilots?
“What would it be like if we were outside of ALPA?â€
What does our current contract say?
The US Airways pilots have very strong merger protection language and it states:
C) Successor ship and Labor Protection
1. The Agreement shall be binding upon any successor, including, without limitation, any merged company or companies, assignee, purchaser, transferee, administrator, receiver, executor and/or trustee of US Airways Group or the Company. The Company and US Airways Group shall require a Successor to assume and be bound by all terms of the Agreement as a condition of any transaction that results in a Successor.
2. If the Successor is an air carrier (or a corporate parent or subsidiary of an air carrier), US Airways Group and the Company shall require the Successor to provide the Company's pilots with seniority integration governed by the Association Merger Policy, if applicable, and otherwise by Sections 2, 3 and 13 of the Allegheny-Mohawk Labor Protective Provisions. The airline operations of the Company and Successor shall be merged no later than twenty-four months following the integration of the pilot seniority lists and negotiation of an integrated collective bargaining agreement applicable to the merged operation Agreement.
3. In the event that the Company is merged with another airline, the Company’s pilots shall, upon such merger, be provided labor protective provisions no less favorable than those specified by the CAB in the Allegheny-Mohawk merger.
Interesting reading, isn’t it? Remember, this is language in our current collective bargaining agreement.
Section 13 of Allegheny Mohawk states that we get to go to arbitration with an NMB selected arbitrator not an ALPA selected arbitrator. The NMB is biased towards DOH integrations.
It appears that ALPA President Prater is not familiar with the strength of our merger protections.
Where else has Captain Prater failed to do his homework?
Let’s take a look at Section 13 of Allegheny Mohawk LPP’s:
Section 13 Allegheny Mohawk
Section 13. (a) 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 settle 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 it 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.
(b.) 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.
We would remind everyone that the language above does not constrain an NMB arbitrator to use ALPA merger policy. He would be free to use a much broader and open definition of seniority, one that has a recognized basis in law and in the courts, one like Date of Hire.
In fact it could be argued that any other side in this situation would be hard pressed to negotiate from some other position without substantial evidence that their position is more in keeping with the overall interest of labor in general.
The officers and volunteers of USAPA will not hide behind a logo. We are not attempting to deprive anyone of anything and we are upholding a long tenet of labor law and past practice. Our policy will use appropriate conditions and restrictions to protect both the East and West pilots from loss of bidding power and we will not remove any pilot from their rightfully earned positions. We will explore various methods to achieve this objective such as fences and other methods to achieve fair and equitable seniority integration. We will attempt to use ALPA’s past practice in mergers which states:
"The merger representatives shall carefully weigh all the equities inherent in their merger situation. In joint session, the merger representatives should attempt to match equities to various methods of integration until a fair and equitable agreement is reached. Merger representatives should, when possible, use Conditions and Restrictions so as to accomplish seniority list integration based on date of hire, keeping in mind the following primary goals:
a. Preserve jobs.
b. Avoid windfalls to either group at the expense of the other.
c. Maintain or improve pro-merger pay and standard of living.
d. Maintain or improve pre-merger pilot status
e. Minimize detrimental changes to career expectations.
Let us be perfectly clear. If USAPA is selected as the bargaining agent for all US Airways pilots, we have an obligation to fairly represent all US Airways pilots. The West pilots, as well as the East pilots will have a voice in the process. A fair and equitable integration for all pilots ensures the future success of this company and this pilot group. USAPA will strive for that goal. We believe that it can be attained.
Sincerely,
Stephen H. Bradford
Interim President USAPA
Mark Thorpe
Interim Vice President
Mark King
Interim Secretary and Treasurer
Jed Thomas
Chairman/Volunteers
Scott Theuer
Chairman/Communications
What are we gonna eat!
