Judge Silver will dismiss. The case is not ripe. Nothing is different in front of her. Nothing has ACTUALLY changed. There is a new MOU, but it is conditional on the merger happening.
As to the MOU, the case law supports USAPA. Since the West Class ratified it, there is legal precedent that prevents them from suing with a DFR.
And besides all that....they make ZERO case in their DFR claim. They do not even address the standards required to frame a DFR.
It’s over. Judge Silver will dismiss. The POR will come and go. And in their filing to the Ninth, the Company agrees....we all move on to a new process.
Read the USAPA motion to dismiss. It’s all there, and it has real case law in it, not nebulous Harper mumbo jumbo recycled Wake arguments (which WILL be thrown out by Silver....the law says that even never happened. Even Judge Wake said it never happened.)
Greeter
I did.
West Pilots’ overwhelming support for the MOU precludes a DFR claim.
The complaint alleges that “The MOU was ratified by 75% of USAPA’s membership
on February 8, 2013.” (Complaint, ¶ 79) In fact, 97.69% of the Phoenix pilots voted for
the MOU.9 Plaintiffs admit they understood that the MOU did not address the Nicolau
9 See Official Election Results issued by USAPA’s Ballot Certification Committee,
Exhibit A to the Declaration of Patrick J. Szymanski attached hereto. Because the vote
count is alleged in the complaint and there can be no question as to the authenticity of the
document, the Court may consider it. See Twombly, 550 U.S. at 568 n.13, 127 S.Ct. at
1973 n.13 (district court was entitled to take notice of full contents of article referenced in
complaint); Parrino v. FHP, Inc. 146 F.3d 699, 705-06 (9th Cir. 1998), superseded by issue (Complaint, ¶82) and that USAPA entered into the MOU with the “firm intention”of using date of hire list instead of the Nicolau list. (Id. at ¶99) Under these circumstances
and in light of their overwhelming ratification of the MOU, Plaintiffs fail to state a claim
for breach of the duty of fair representation. Gullickson v. Southwest Airlines Pilots’
Ass’n, 87 F.3d 1176, 1183-84 (10th Cir. 1996); see also Papcin v. Dichello Distributors,
Inc., 697 F.Supp. 73, 80 (D. Conn. 1988) (In dismissing plaintiffs’ hybrid DFR claim,
finding that the 1980 agreement modified seniority provisions, and “plaintiffs knew this
to be the case when they voted to ratify the 1980 agreement.), judgment aff’d in
unpublished decision 862 F.2d 304 (2d Cir. 1988). Under these cases, the overwhelming
approval of the MOU amounts to ratification of USAPA’s decision not to include the
Nicolau list in the MOU and “a knowing and voluntary waiver” of any DFR claim
against USAPA based on the MOU. The DFR claim should be dismissed on this
independent ground.
Gullickson, 87 F.3d at 1185.
I was at the Phoenix roadshow along with a room full of witnesses. Pat avoided and danced around any seniority related question, even so far as saying he's not going to re-argue statement's he made in Silver's court. He had a much easier time answering these questions in Charlotte.
Wouldn't you think, if he was speaking for USAPA, to fairly represent the interests of the pilots of the Phoenix domicile as well?
98% of us did not wake up one morning and vote DOH over the Nic.
Judge Silver is smarter than that.
