MICHAEL S. HABER
ATTORNEY AT LAW
225 Broadway, Suite 3010
New York, New York 10007
___________
TO : Captain xxxxx xxxxxx
FROM : Michael S. Haber
RE : Status of “MidAtlantic Airwaysâ€
DATE : December 17, 2007
The pilot committee has requested a memo be prepared and delivered to you that will help to outline that "MidAtlantic Airways" and US Airways were one and the same. This should not be a complicated task, inasmuch as both ALPA and US Airways have already acknowledged that this is so. It is the intent of this memo to provide sufficient detail to meet your request without compromising sensitive data. To that end, this memo is not confidential.
BACKGROUND
Before addressing the substance, we briefly deal with the arbitration award, which is replete with mistakes, poor assumptions, and absurd standards and priorities. First, arbitrator George Nicolau found that the 1,691 furloughees on US Airways’ seniority list included the MDA pilots. Building one mistake upon another, he next determined that “merging active pilots with furloughees†would be unfair. Thus, the arbitration award does not credit “MDA†pilots with the time during which they flew MidAtlantic equipment for US Airways.
Nicolau characterized MDA “a regional carrier,†but, oddly, then acknowledged that it did not have a separate operating certificate. This is important, because if there is no operating certificate, then there is no “carrier†(regional or otherwise). The Award notes at page 5 that US Airways’ 5,098 pilots were hired between April 20, 1966 and June 19, 2000, and that 1691 pilots were on furlough at the time of the merger. The list of furloughees included, according to the Award, 105 Combined Eligibility List [“CELâ€] pilots along with “212 other Mid-Atlantic Division†pilots.
“Though listed as active in a US Airways summary sheet,†the Award states, “they are carried as furloughed on the US Airways Certified 5/1/05 List.†The Award treats the flying performed by “MDA†pilots as though they were working for a separate carrier during that time.
The America West representatives had urged that the CEL pilots (who accounted for 105 of the “MidAtlantic†slots) be left off of the list. Although Nicolau disagreed with that assertion, the standard he invoked to determine placement of these pilots was whether it would “adversely affect America West pilots.†Such a standard is incompatible with ALPA’s Merger Policy, which is designed to assure a “fair and equitable resolution.â€
I have previously cited your own circumstances as illustrative of the effect that the Nicolau Award has on “MDA†pilots. You were initially hired by US Airways in 1998 (less than five years after America West’s most senior pilot), were furloughed in 2003, and, less than six months later, were hired to fly the EMB 170 aircraft at US Airways’ MidAtlantic division. During the almost four years since your furlough, your seniority improved from number xxx to number xxxx. The Nicolau Award would place an America West pilot who was hired and in training during the arbitration to be more senior than you. In other words, more than 18 years of active service is washed away with a single strike of the pen.
In February 2005, ALPA listed the total number of furloughees as 1879, but reduced that number to 1574 as of July 2005, the difference between those two numbers being almost the exact number of “MidAtlantic†pilots (both APL and CEL combined). There were 203 APL pilots flying at “the MidAtlantic division,†emanating from all seniority levels among the APL. Presumably recognizing that APL pilots who did not accept a “MidAtlantic†position would likely have decided otherwise if they had been aware that MidAtlantic was in fact a US Airways position, ALPA did not know how to treat those pilots.
Nicolau also determined that America West pilots had “career expectations [that] were far superior to those of the US Airways pilots.†In creating the Integrated List, Nicolau first “temporarily extract[ed]†from the January 1, 2007 lists non-flying pilots and those on leaves of absence. From there, the arbitrator concluded that while “history is cloudy at best,†that there is “insufficient evidence†to justify removing MDA pilots from the list altogether. Nonetheless, he stated that placing the MDA pilots at “the bottom of the integrated list, a position they know [sic] occupy on the US Airways list, will not adversely affect America West pilots.â€
In other words, the criterion he set for the seniority integration was that it not harm America West pilots. Such a standard makes it sound as though the only pilots to whom Nicolau owed a duty was to the America West pilots. That is not the standard. Contrary to ALPA merger policy, the America West pilots were given a windfall at the expense of “MDA†pilots’ career expectations.
The May 21, 2007 Meeting
A May 21, 2007 meeting, attended by hundreds of pilots, shed new light on the arbitration. My understanding is that counsel for the US Airways pilots during the arbitration stated that there were both official and unofficial versions of the seniority list used as exhibits during the arbitration and that the key difference between the two lists was the inclusion of the MDA pilots -- the official list included MDA pilots; the unofficial list had them listed as furloughed.
The unofficial list, I am told, was initially objected to by counsel for the US Airways pilots but ultimately was accepted by counsel with the recognition that the document was erroneous.
A crucial issue is whether ALPA knowingly acquiesced to a circumstance in which the MDA pilots would, for purposes of the seniority integration arbitration, be mistakenly understood to have been furloughed at the time of the merger.
It is hard to believe that an arbitration that involved 18 days of hearings, testimony of 20 witnesses, numerous exhibits, and a transcript of more than 3,000 pages would utilize a seniority list that was just plain wrong. It is also hard to understand how a flawed seniority list could result in an unflawed seniority integration.
ALPA did little, if anything, to correct the misimpressions and misapprehensions of the arbitrator. Because of those misimpressions, the 35-page arbitration award creates a seniority list that places “MDA†pilots under America West’s new-hires: A probationary America West pilot has greater seniority, rights, and protections than an “MDA†pilot with some 17 years of seniority with US Airways.
POSITIONS ALPA HAS TAKEN DURING THE NAUGLER LITIGATION
July 2006
On July 21, 2006, during a court conference in Naugler v. Air Line Pilots Association, International, the Judge heard argument concerning ALPA's motion to dismiss the complaint. I told the Court that ALPA sought to camouflage that the union misled its members and stripped them of their recall rights. The key fact, I maintained, was that there really was no MidAtlantic and that ALPA pulled the wool over the eyes of its members, violating its duty of fair representation.
I emphasized repeatedly that MidAtlantic never existed and that if the pilots knew that it did not in fact exist, they would have been entitled to greater pay and benefits.
ALPA’s attorney maintained, in opposition to my remarks, that the pilots all knew MidAtlantic did not exist. I countered by pointing out that if this was known to the pilots, there would have been no reason for the MEC to continue the charade into June of 2005. ALPA’s counsel admitted, for the first time, in response to a question from the Judge, that MidAtlantic never existed (emphasis added).
In permitting ALPA to make a motion to dismiss, the Judge said,
“I can’t stop someone from filing a motion,†but added, “It strikes me that it is not going to be a powerful motion to dismiss.â€
Less than three months ago, ALPA filed a Memorandum of Law with the court opposing plaintiffs' motion to amend the complaint to assert new claims dealing with the seniority integration arbitration [the "Nicolau Award"]. That memo, dated September 26, 2007, stated, in part, "Plaintiffs are ALPA-represented pilots who were furloughed from US Airways and subsequently accepted employment at the MDA division of US Airways." ALPA maintained, in that same memo, that "the corporate structure of MDA was, in any event, completely irrelevant."
ALPA has argued that the US Airways Restructuring Agreement provided that "[a]ll MDA positions will be filled first by US Airways pilots," and that LOA 84 provided that MDA "could be operated 'as a separate division within mainline -- US Airways, Inc.' and that point was later confirmed in Letter of Agreement 91."
THE POSITION OF US AIRWAYS
The company issued a myriad of press releases concerning “MDA†during the period from 2002 through 2004. Initially, on May 30, 2002, a press release said “MidAtlantic Airways . . . will operate as a wholly-owned subsidiary of US Airways Group, Inc., and as part of the US Airways Express network,†a position that was reiterated on June 27, 2002, when US Airways wrote, “In addition to Piedmont Airlines, US Airways' other wholly-owned US Airways Express carriers are Allegheny Airlines, PSA Airlines and MidAtlantic Airways.â€
By December 11, 2002, the situation became somewhat murky, with a press release stating that “the company will make MidAtlantic Airways, its new regional jet subsidiary, a division of US Airways . . . . US Airways mainline employees on furlough will be assigned to work the regional jets that will be flown by MidAtlantic at competitive regional airline rates and benefits, but allowing them to keep their seniority number and providing for coordination of staffing.â€
By February 3, 2003, the company referred vaguely to the “new MidAtlantic Airways operation,†but subsequently referred to MDA as its “new regional airline division†(March 31, 2003), a characterization more or less replicated on April 7, 2003 and again on May 12, 2003. Strangely, on July 9, 2003, a US Airways press release referred to a “new wholly owned MidAtlantic Airways division,†but then reverted on July 28, 2003 to calling MDA “US Airways’ MidAtlantic Airways division.†By April 2, 2004, a US Airways press release referred to MDA as “US Airways’ new regional jet division.â€
CONCLUSION
These various characterizations by the company and the union render it easily understandable why pilots were confused as to whether “MidAtlantic Airways†was a separate carrier or a division of US Airways, and, moreover, demonstrate conclusively that, in fact, MidAtlantic Airways was nothing other than a part of US Airways. The existing collective bargaining agreement contains rights for furloughed pilots. Those rights were violated when these pilots were brought back to fly for the identical airline that had them listed as furloughed but without the benefit of recall. An internal division does not create a separate carrier. US Airways provided documentation to the court that states they “did what they did because the bankruptcy laws allowed it and because ALPA allowed it†(Emphasis added). This admission highlights that extraordinary measures were taken outside of the collective bargaining agreement.
