SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
US AIRWAYS MASTER EXECUTIVE COUNCIL, AIR LINE PILOTS ASSOCIATION, INT’L, One Thorn Run Center, Suite 400
Coraopolis, PA 15108
AND
JOHN A. STEPHAN, in his capacity as MEC Chairman
One Thorn Run Center, Suite 400
Coraopolis, PA 15108
Plaintiffs,
v. )
AMERICA WEST MASTER EXECUTIVE COUNCIL, AIR LINE PILOTS ASSOCIATION, INT’L,
Two Gateway
432 North 44th Street, Suite 340
Phoenix, AZ 85008
AND
JOHN MCILVENNA, in his capacity as MEC Chairman,
Two Gateway
432 North 44th Street, Suite 340
Phoenix, AZ 85008
Defendants.
APPLICATION TO
VACATE ARBITRATION AWARD
Plaintiffs US Airways Master Executive Council, Air Line Pilots Association, International (“AAA MECâ€) and its Chairman, John A. Stephan, file this application under D.C. Code § 16-4315 to set aside an arbitration award issued in a pilot seniority list integration arbitration proceeding between the AAA MEC and the America West Master Executive Council, Air Line Pilots Association, International, (“AWAâ€) arising from the merger of US Airways and America West Airlines in 2005 and occurring under the “Merger and Fragmentation Policy†of the Air Line Pilots Association, International (“ALPA Merger Policyâ€).
INTRODUCTION
1. AAA MEC files this application asking the Court to vacate an arbitration award issued on May 1, 2007 by a Board of Arbitration established under ALPA Merger Policy and chaired by Arbitrator George Nicolau in the pilot seniority list integration arbitration proceeding between the parties (“Nicolau Awardâ€). The parties’ agreement to arbitrate is governed by the law of the District of Columbia, where the arbitration proceeding occurred, not federal labor law.
2. “In the area of labor relations, ‘seniority’ is a term that connotes length of employment.†California Brewers Ass’n v. Bryant, 444 U.S. 598, 605 (1980). “[T]he principal feature of any and every “seniority system†is that
preferential treatment is dispensed on the basis of some measure of time served in employment.†Id. at 606. Seniority is a system of employment preference based on length of service; employees with the longest service are given the greatest job security and the best opportunities for advancement.†Id. at 613-14. “It is hardly surprising that seniority has uniformly been defined in terms of cumulative length of service. No other definition could accord with the policies underlying the recognition of seniority rights.†Id. at 614.
3. The seniority at issue in the parties’ arbitration is “competitive status†seniority, which is used “to allocate entitlements to scarce benefits among competing employees†at a company. Franks v. Bowman Transportation Co., 424 U.S. 747, 766 (1976). “More than any other provision of the collective-[bargaining] agreement . . . seniority affects the economic security of the individual employee covered by its terms.†Id. at 766.
4. “Integration of seniority lists should ordinarily be accomplished on the basis of each employee's length of service with his original employer . . . .†Humphrey v. Moore, 375 U.S. 335, 347 (1964).
5. At US Airways and America West, like other ALPA-represented carriers, pilots are carried in descending order of their hire dates on system seniority lists. Placement on the seniority list determines the pilot’s “status†(Captain or First Officer), “equipment†(type of aircraft flown), “domicile†(location of the start of trips), flying schedule (e.g., schedule as a lineholder or
assignment as a reserve), job security (layoff and recall), and a host of other benefits and working conditions prescribed by the collective bargaining agreement. In a profession in which al pilots’ qualifications and physical capacity are assured by testing and training, an individual pilot’s seniority number is the most important determinant of career success.
6. The Nicolau Award should be set aside because it violates ALPA Merger Policy (which constituted the parties’ agreement to arbitrate), and therefore it exceeded the Board of Arbitration’s powers and did not draw its essence from ALPA Merger Policy.
7. The Nicolau Award violates ALPA Merger Policy by providing windfalls (unwarranted and unexpected benefits) to the pilots of America West at the expense of US Airways pilots, thereby permanently depriving US Airways pilots of their career expectations, while affording gains in career promotion to America West pilots which they could not have achieved absent the Award.
8. America West pilots number approximately 1,900, while US Airways pilots number approximately 5,100, including some 3,600 pilots actively flying for US Airways at the time of the announcement of the 2005 merger.
9. The Nicolau Award transfers the promotional benefit of attrition within the US Airways pilot group (that is, pilot promotions enabled by US Airways pilots retiring or otherwise leaving the airline) to America West pilots, although the Award found the America West pilots had no reasonable expectation
of those promotions prior to the merger. The Award thereby deprived certain US Airways pilots of reasonably anticipated promotions to their injury.
10. By granting windfalls in promotions to America West pilots at the expense of US Airways pilots, the Nicolau Award has the effect of reversing the current distribution of Captain positions (nearly 60 percent of which are now held by US Airways pilots) by the year 2015. The Captain positions taken away from the US Airways pilots and given to the America West pilots includes hundreds of Captain positions in wide body aircraft, aircraft which the arbitrator found the America West pilots had never flown and had no expectation of ever flying.
11. The Nicolau Award further violates ALPA Merger Policy by depriving many US Airways pilots in active service at the time of the award of the seniority credit due them as active pilots, contrary to the evidence found by the Board of Arbitration. Accordingly, the Award is internally contradictory by reaching conclusions in conflict with its factual findings, in violation of ALPA Merger Policy.
12. The Nicolau Award deprives long-serving, senior US Airways pilots of their career expectations by putting them below America West pilots who have far less service at America West. Among other anomalies, the Award places America West pilots who were probationary new hires at America West and stil in their initial training at the time of the 2005 merger on the integrated seniority
list ahead of active service US Airways pilots with nearly seventeen years of uninterrupted service with US Airways at the time of the 2005 merger.
13. Because the Nicolau Award grants windfalls to America West pilots (some only new hires) at the expense of senior US Airways pilots, deprives US Airways pilots of their career expectations, abandons the seniority principle and contradicts its own factual findings, the Award must be vacated.
PARTIES
14. Plaintiff AAA MEC is a subordinate body of the Air Line Pilots Association, International (“ALPAâ€) providing representation for the US Airways pilots. It is an unincorporated, nonprofit labor organization headquartered in Coraopolis, Pennsylvania. AAA MEC is not a “labor organization†as defined under the National Labor Relations Act.
15. The AAA MEC has standing to pursue this action for its affected members as a nonprofit association under D.C. Code § 29-971.07.
16. Plaintiff John A. Stephan is a US Airways Captain and Chairman of the AAA MEC; he has standing as principal officer of the AAA MEC to pursue this action on behalf of the membership of the unincorporated association he represents.
17. Defendant AWA MEC is a subordinate body of the ALPA providing representation for the America West Airlines pilots. It is an unincorporated,
nonprofit labor organization headquartered in Phoenix, Arizona. AWA MEC is not a “labor organization†as defined under the National Labor Relations Act.
18. The AWA MEC is properly a defendant in this action as a nonprofit association under D.C. Code § 29-971.07.
19. Defendant John McIlvenna is sued in his official capacity as Chairman of the AWA MEC; as the principal officer of the AWA MEC and an America West Captain, he is a proper defendant in this action for the purpose of representing the membership of the AWA MEC.
JURISDICTION AND VENUE
20. This Court has jurisdiction over this action under D.C. Code § 11-921 as it involves an application under D.C. Code §§ 16-4311 and 16-4315 to vacate an arbitration award arising under an agreement to arbitrate between two unincorporated nonprofit associations.
21. The parties’ agreement to arbitrate under ALPA Merger Policy is not subject either to the Labor Management Relations Act, 29 U.S.C. §§ 185, et seq., (because it is not an agreement between labor organizations subject to the LMRA) or the Railway Labor Act, 45 U.S.C. §§ 151, et seq. (because it is not an agreement between an air carrier and its employees subject to the RLA).
22. This Court has personal jurisdiction over defendants AWA MEC and McIlvenna as the defendants participated in the arbitration and preliminary proceedings giving rise to the award in the District of Columbia. This Court,
therefore, has personal jurisdiction over AWA MEC under § 13-423 of the D.C. Code since this action arises out of the defendants’ conduct in the District of Columbia.
23. Venue is proper in this Court since the arbitration proceeding occurred in the District of Columbia.
FACTUAL BACKGROUND
24. The allegations of paragraphs 1 through 23 are incorporated herein under Super. Ct. R. Civ. P. 10©.
25. The Air Line Pilots Association, International represents airline pilots at many airlines in the United States. ALPA maintains subordinate bodies, known as Master Executive Councils, which consist of Local Council representatives from each pilot domicile on ALPA-represented airlines, who are elected by the pilots of the domiciles to represent them. The Local Council representatives, in turn, elect the Chairman, Vice-Chairman and Secretary/Treasurer of the Master Executive Council. The MEC provides representation of the pilots under the collective bargaining agreement with their airline.
26. ALPA maintains a policy to deal with instances where a merger transaction occurs between two airlines. That policy is known as the ALPA Merger Policy. A true and correct copy of the ALPA Merger Policy is attached as Plaintiff’s Exhibit 1.
27. An operational merger of airlines triggers a combination of the two pilot groups of the airlines.
28. Pilots at al ALPA-represented airlines maintain system seniority lists, which list pilots in order of their date of hire for purposes of competitive bidding for promotions and work (flight) schedules among other aspects of employment.
29. Following an airline merger, the seniority lists of the two pilot groups of the airlines involved in the merger are combined (or integrated) into a single, combined seniority list.
30. ALPA Merger Policy establishes both the substantive terms on which a combination of seniority lists occurs and procedures for combining the lists.
31. Under ALPA Merger Policy, the MECs representing the two pilot groups agree to follow the policy for combining seniority lists and appoint special committees, known as “Merger Committeesâ€, for the purpose of pursuing the procedures established in ALPA Merger Policy.
32. ALPA Merger Policy provides that the Merger Committees of the respective MECs meet directly in an effort to negotiate an agreed combination of seniority lists.
33. If direct negotiations between the Merger Committees are unsuccessful, the parties then select by alternate strike from a list provided by ALPA National a neutral to serve as a mediator/arbitrator.
34. The Merger Committees are to pursue a negotiated combination of the seniority lists in mediation with the assistance of the selected neutral.
35. If mediation between the parties is unsuccessful, the parties then proceed to arbitration under ALPA Merger Policy, with the neutral serving as chairman of a Board of Arbitration that consists of three persons: the neutral arbitrator previously selected by the parties and two pilot neutrals (who are ALPA members at other airlines not involved in the merger, with one pilot neutral selected by each merger committee) who will serve with the arbitrator in hearing the presentation of evidence and argument by the parties in arbitration. The pilot neutrals serve as independent decision makers and do not act as representatives of the respective merger committees.
36. The Board of Arbitration conducts hearings at which each merger committee presents a proposal for the basis on which the two seniority lists should be combined, supported by argument, testimony and exhibits.
37. The parties are permitted to submit post-hearing briefs arguing in favor of their respective proposals following the conclusion of the hearing.
38. ALPA Merger Policy establishes in its Section 45.G.5 that the basis for the combination of the seniority lists is a “fair and equitable agreement†and further establishes the following goals, “in no particular orderâ€:
a. Preserve jobs.
b. Avoid windfalls to either group at the expense of the other.
c. Maintain or improve pre-merger pay and standard of living.
d. Maintain or improve pre-merger pilot status.
e. Minimize detrimental changes to career expectations. Plaintiff’s Exhibit 1 at p. 6. The fairness and equitableness of an ALPA seniority integration are measured by the degree to which it satisfies those goals.
39. In establishing that the combination of seniority lists “avoid windfalls to either group at the expense of the otherâ€, ALPA Merger Policy prohibits an arbitration award from affording windfalls to one pilot group at the expense of the other.
40. The AAA MEC Merger Committee and the AWA MEC Merger Committee pursued the procedures of ALPA Merger Policy through arbitration before a Board of Arbitration consisting of neutral arbitrator George Nicolau, and pilot neutrals Stephen Gilen (selected by the AWA MEC Merger Committee) and James Brucia (selected by the AAA MEC Merger Committee).
41. The Board of Arbitration conducted hearings in Washington, D.C. in December 2006, January 2007 and February 2007, during which both Merger Committees presented evidence and argument.
42. The parties filed post-hearing briefs in March 2007.
43. The Board of Arbitration issued its opinion and award to the parties on May 1, 2007. A true and accurate copy of the Nicolau Award is attached as Plaintiff’s Exhibit 2.
CLAIM FOR RELIEF
44. The allegations of paragraphs 1 through 43 are incorporated by reference under Super. Ct. Civ. P. 10©.
45. AAA MEC and AWA MEC pursued ALPA Merger Policy, including arbitration, to resolve their dispute over combination of the pilot seniority lists of the two airlines.
46. ALPA Merger Policy constitutes the parties’ agreement to resolve their dispute by arbitration.
47. The Merger Committees representing the respective MECs established the Board of Arbitration under ALPA Merger Policy.
48. The arbitration proceedings conducted by the Board of Arbitration chaired by Arbitrator Nicolau, including hearings and issuance of the Nicolau Award, occurred under ALPA Merger Policy.
49. The arbitration proceeding between the parties and the Nicolau Award were subject the standards for the combination of seniority lists established in Section 45.G.5 of ALPA Merger Policy.
50. The Nicolau Award violates ALPA Merger Policy and exceeds the powers of the Board of Arbitration under ALPA Merger Policy.
51. Pilot job growth at America West was stagnant before and after the 2005 merger between US Airways and America West.
52. America West pilots had no pre-merger expectation of flying wide body aircraft. Before and after the 2005 merger, wide body aircraft were flown exclusively by US Airways pilots. Wide body flying is among the most lucrative and prestigious assignments, which normally become available to pilots after many years of experience with an airline.
53. The Nicolau Award affords unwarranted windfalls to America West pilots at the expense of US Airways pilots by transferring to the America West pilot group 740 wide body international Captain positions brought to the merger by US Airways pilots, thereby enabling 40 percent of the pilots on the America West seniority list to obtain wide body international Captain positions in aircraft they had no expectation of ever flying prior to the merger.
54. The Nicolau Award harms US Airways pilots by depriving them of at least 788 international, wide body aircraft captain positions, thereby reducing their ability to promote to those positions and permanently depriving certain US Airways pilots of ever achieving such promotions. Age differences between the two pilot groups will result in the loss of more wide body international Captain positions by the US Airways pilot group than the America West pilot group will gain under the Award.
55. The Nicolau Award affords unwarranted windfalls to America West pilots at the expense of US Airways pilots by giving America West pilots promotional opportunities to Captain positions created by attrition among US
Airways pilots, which promotions the America West pilots had no legitimate expectation of receiving.
56. The improper windfalls for America West pilots granted by the Nicolau Award will have the effect of reversing by the year 2015 the respective share of captaincies currently held by the two groups, thereby allowing the much smaller America West pilot group to hold the vast majority of Captain positions.
57. The Nicolau Award violates ALPA Merger Policy by treating approximately 300 US Airways pilots as furloughees and denying them seniority credit despite their being in active service with the Company, in conflict with the Award’s reliance upon the January 1, 2007 seniority lists of the parties that show those 300 pilots to be in active service with US Airways. The Award places these recalled pilots (with an average length of service with US Airways of seventeen years) lower on the combined seniority list than America West pilots who were probationary new hire pilots at the time of the 2005 merger. By issuing an award in contradiction with the Board’s factual findings, the Award violates ALPA Merger Policy.
58. The Nicolau Award grants impermissible windfalls to America West pilots at the expense of US Airways pilots by placing junior America West pilots (some still on probation and in training with America West at the time of the 2005 merger) ahead of far more senior US Airways pilots (with an average length of service of seventeen years). This windfall will have the effect of unexpectedly
accelerating the career advancement of junior America West pilots, while retarding the career advancement (in some cases, permanently) of US Airways pilots with far longer service with the Company.
59. The Nicolau Award fails to “minimize detrimental changes to career expectations†of US Airways pilots, as required by ALPA Merger Policy, in that it significantly reduces the career expectations of US Airways pilots, including permanently depriving certain US Airways pilots of advancement to captaincies for which they had a legitimate expectation.
60. The Nicolau Award fails to “maintain or improve pre-merger pilot status†of US Airways pilots, as required by ALPA Merger Policy, by significantly reducing the career expectations of US Airways pilots, including permanently depriving certain US Airways pilots of promotions to captaincies for which they had a legitimate expectation.
61. The Nicolau Award contradicts its own factual findings, including those regarding the pre-merger status of the pilot groups and the active status of pilots at the time of the Award.
62. For the foregoing reasons, the Nicolau Award violates ALPA Merger Policy, fails to draw its essence from ALPA Merger Policy, and exceeds the Arbitration Board’s powers under ALPA Merger Policy. Therefore, this application satisfies the standard prescribed in D.C. Code § 16-4311 for vacation of the Nicolau Award.
REMEDY SOUGHT
WHEREFORE, the Plaintiffs US Airways Master Executive Council and John A. Stephan, its Chairman, request the following relief:
A. That the Nicolau Award be vacated in its entirety;
B. That the plaintiffs be granted such other and further relief as the Court deems necessary and proper.
Dated: June 26, 2007. Respectfully submitted,
/s/ Roland P. Wilder, Jr.
Roland P. Wilder, Jr. (D.C. Bar No. 69609) William R. Wilder (D.C. Bar No. 450086) BAPTISTE & WILDER, P.C.
1150 Connecticut Ave., N.W.
Suite 500
Washington, D.C. 20036
(202) 223-0723
(202) 223-9677
Counsel for Plaintiff US Airways Master Executive Council, Air Line Pilots Association, International
US AIRWAYS MASTER EXECUTIVE COUNCIL, AIR LINE PILOTS ASSOCIATION, INT’L, One Thorn Run Center, Suite 400
Coraopolis, PA 15108
AND
JOHN A. STEPHAN, in his capacity as MEC Chairman
One Thorn Run Center, Suite 400
Coraopolis, PA 15108
Plaintiffs,
v. )
AMERICA WEST MASTER EXECUTIVE COUNCIL, AIR LINE PILOTS ASSOCIATION, INT’L,
Two Gateway
432 North 44th Street, Suite 340
Phoenix, AZ 85008
AND
JOHN MCILVENNA, in his capacity as MEC Chairman,
Two Gateway
432 North 44th Street, Suite 340
Phoenix, AZ 85008
Defendants.
APPLICATION TO
VACATE ARBITRATION AWARD
Plaintiffs US Airways Master Executive Council, Air Line Pilots Association, International (“AAA MECâ€) and its Chairman, John A. Stephan, file this application under D.C. Code § 16-4315 to set aside an arbitration award issued in a pilot seniority list integration arbitration proceeding between the AAA MEC and the America West Master Executive Council, Air Line Pilots Association, International, (“AWAâ€) arising from the merger of US Airways and America West Airlines in 2005 and occurring under the “Merger and Fragmentation Policy†of the Air Line Pilots Association, International (“ALPA Merger Policyâ€).
INTRODUCTION
1. AAA MEC files this application asking the Court to vacate an arbitration award issued on May 1, 2007 by a Board of Arbitration established under ALPA Merger Policy and chaired by Arbitrator George Nicolau in the pilot seniority list integration arbitration proceeding between the parties (“Nicolau Awardâ€). The parties’ agreement to arbitrate is governed by the law of the District of Columbia, where the arbitration proceeding occurred, not federal labor law.
2. “In the area of labor relations, ‘seniority’ is a term that connotes length of employment.†California Brewers Ass’n v. Bryant, 444 U.S. 598, 605 (1980). “[T]he principal feature of any and every “seniority system†is that
preferential treatment is dispensed on the basis of some measure of time served in employment.†Id. at 606. Seniority is a system of employment preference based on length of service; employees with the longest service are given the greatest job security and the best opportunities for advancement.†Id. at 613-14. “It is hardly surprising that seniority has uniformly been defined in terms of cumulative length of service. No other definition could accord with the policies underlying the recognition of seniority rights.†Id. at 614.
3. The seniority at issue in the parties’ arbitration is “competitive status†seniority, which is used “to allocate entitlements to scarce benefits among competing employees†at a company. Franks v. Bowman Transportation Co., 424 U.S. 747, 766 (1976). “More than any other provision of the collective-[bargaining] agreement . . . seniority affects the economic security of the individual employee covered by its terms.†Id. at 766.
4. “Integration of seniority lists should ordinarily be accomplished on the basis of each employee's length of service with his original employer . . . .†Humphrey v. Moore, 375 U.S. 335, 347 (1964).
5. At US Airways and America West, like other ALPA-represented carriers, pilots are carried in descending order of their hire dates on system seniority lists. Placement on the seniority list determines the pilot’s “status†(Captain or First Officer), “equipment†(type of aircraft flown), “domicile†(location of the start of trips), flying schedule (e.g., schedule as a lineholder or
assignment as a reserve), job security (layoff and recall), and a host of other benefits and working conditions prescribed by the collective bargaining agreement. In a profession in which al pilots’ qualifications and physical capacity are assured by testing and training, an individual pilot’s seniority number is the most important determinant of career success.
6. The Nicolau Award should be set aside because it violates ALPA Merger Policy (which constituted the parties’ agreement to arbitrate), and therefore it exceeded the Board of Arbitration’s powers and did not draw its essence from ALPA Merger Policy.
7. The Nicolau Award violates ALPA Merger Policy by providing windfalls (unwarranted and unexpected benefits) to the pilots of America West at the expense of US Airways pilots, thereby permanently depriving US Airways pilots of their career expectations, while affording gains in career promotion to America West pilots which they could not have achieved absent the Award.
8. America West pilots number approximately 1,900, while US Airways pilots number approximately 5,100, including some 3,600 pilots actively flying for US Airways at the time of the announcement of the 2005 merger.
9. The Nicolau Award transfers the promotional benefit of attrition within the US Airways pilot group (that is, pilot promotions enabled by US Airways pilots retiring or otherwise leaving the airline) to America West pilots, although the Award found the America West pilots had no reasonable expectation
of those promotions prior to the merger. The Award thereby deprived certain US Airways pilots of reasonably anticipated promotions to their injury.
10. By granting windfalls in promotions to America West pilots at the expense of US Airways pilots, the Nicolau Award has the effect of reversing the current distribution of Captain positions (nearly 60 percent of which are now held by US Airways pilots) by the year 2015. The Captain positions taken away from the US Airways pilots and given to the America West pilots includes hundreds of Captain positions in wide body aircraft, aircraft which the arbitrator found the America West pilots had never flown and had no expectation of ever flying.
11. The Nicolau Award further violates ALPA Merger Policy by depriving many US Airways pilots in active service at the time of the award of the seniority credit due them as active pilots, contrary to the evidence found by the Board of Arbitration. Accordingly, the Award is internally contradictory by reaching conclusions in conflict with its factual findings, in violation of ALPA Merger Policy.
12. The Nicolau Award deprives long-serving, senior US Airways pilots of their career expectations by putting them below America West pilots who have far less service at America West. Among other anomalies, the Award places America West pilots who were probationary new hires at America West and stil in their initial training at the time of the 2005 merger on the integrated seniority
list ahead of active service US Airways pilots with nearly seventeen years of uninterrupted service with US Airways at the time of the 2005 merger.
13. Because the Nicolau Award grants windfalls to America West pilots (some only new hires) at the expense of senior US Airways pilots, deprives US Airways pilots of their career expectations, abandons the seniority principle and contradicts its own factual findings, the Award must be vacated.
PARTIES
14. Plaintiff AAA MEC is a subordinate body of the Air Line Pilots Association, International (“ALPAâ€) providing representation for the US Airways pilots. It is an unincorporated, nonprofit labor organization headquartered in Coraopolis, Pennsylvania. AAA MEC is not a “labor organization†as defined under the National Labor Relations Act.
15. The AAA MEC has standing to pursue this action for its affected members as a nonprofit association under D.C. Code § 29-971.07.
16. Plaintiff John A. Stephan is a US Airways Captain and Chairman of the AAA MEC; he has standing as principal officer of the AAA MEC to pursue this action on behalf of the membership of the unincorporated association he represents.
17. Defendant AWA MEC is a subordinate body of the ALPA providing representation for the America West Airlines pilots. It is an unincorporated,
nonprofit labor organization headquartered in Phoenix, Arizona. AWA MEC is not a “labor organization†as defined under the National Labor Relations Act.
18. The AWA MEC is properly a defendant in this action as a nonprofit association under D.C. Code § 29-971.07.
19. Defendant John McIlvenna is sued in his official capacity as Chairman of the AWA MEC; as the principal officer of the AWA MEC and an America West Captain, he is a proper defendant in this action for the purpose of representing the membership of the AWA MEC.
JURISDICTION AND VENUE
20. This Court has jurisdiction over this action under D.C. Code § 11-921 as it involves an application under D.C. Code §§ 16-4311 and 16-4315 to vacate an arbitration award arising under an agreement to arbitrate between two unincorporated nonprofit associations.
21. The parties’ agreement to arbitrate under ALPA Merger Policy is not subject either to the Labor Management Relations Act, 29 U.S.C. §§ 185, et seq., (because it is not an agreement between labor organizations subject to the LMRA) or the Railway Labor Act, 45 U.S.C. §§ 151, et seq. (because it is not an agreement between an air carrier and its employees subject to the RLA).
22. This Court has personal jurisdiction over defendants AWA MEC and McIlvenna as the defendants participated in the arbitration and preliminary proceedings giving rise to the award in the District of Columbia. This Court,
therefore, has personal jurisdiction over AWA MEC under § 13-423 of the D.C. Code since this action arises out of the defendants’ conduct in the District of Columbia.
23. Venue is proper in this Court since the arbitration proceeding occurred in the District of Columbia.
FACTUAL BACKGROUND
24. The allegations of paragraphs 1 through 23 are incorporated herein under Super. Ct. R. Civ. P. 10©.
25. The Air Line Pilots Association, International represents airline pilots at many airlines in the United States. ALPA maintains subordinate bodies, known as Master Executive Councils, which consist of Local Council representatives from each pilot domicile on ALPA-represented airlines, who are elected by the pilots of the domiciles to represent them. The Local Council representatives, in turn, elect the Chairman, Vice-Chairman and Secretary/Treasurer of the Master Executive Council. The MEC provides representation of the pilots under the collective bargaining agreement with their airline.
26. ALPA maintains a policy to deal with instances where a merger transaction occurs between two airlines. That policy is known as the ALPA Merger Policy. A true and correct copy of the ALPA Merger Policy is attached as Plaintiff’s Exhibit 1.
27. An operational merger of airlines triggers a combination of the two pilot groups of the airlines.
28. Pilots at al ALPA-represented airlines maintain system seniority lists, which list pilots in order of their date of hire for purposes of competitive bidding for promotions and work (flight) schedules among other aspects of employment.
29. Following an airline merger, the seniority lists of the two pilot groups of the airlines involved in the merger are combined (or integrated) into a single, combined seniority list.
30. ALPA Merger Policy establishes both the substantive terms on which a combination of seniority lists occurs and procedures for combining the lists.
31. Under ALPA Merger Policy, the MECs representing the two pilot groups agree to follow the policy for combining seniority lists and appoint special committees, known as “Merger Committeesâ€, for the purpose of pursuing the procedures established in ALPA Merger Policy.
32. ALPA Merger Policy provides that the Merger Committees of the respective MECs meet directly in an effort to negotiate an agreed combination of seniority lists.
33. If direct negotiations between the Merger Committees are unsuccessful, the parties then select by alternate strike from a list provided by ALPA National a neutral to serve as a mediator/arbitrator.
34. The Merger Committees are to pursue a negotiated combination of the seniority lists in mediation with the assistance of the selected neutral.
35. If mediation between the parties is unsuccessful, the parties then proceed to arbitration under ALPA Merger Policy, with the neutral serving as chairman of a Board of Arbitration that consists of three persons: the neutral arbitrator previously selected by the parties and two pilot neutrals (who are ALPA members at other airlines not involved in the merger, with one pilot neutral selected by each merger committee) who will serve with the arbitrator in hearing the presentation of evidence and argument by the parties in arbitration. The pilot neutrals serve as independent decision makers and do not act as representatives of the respective merger committees.
36. The Board of Arbitration conducts hearings at which each merger committee presents a proposal for the basis on which the two seniority lists should be combined, supported by argument, testimony and exhibits.
37. The parties are permitted to submit post-hearing briefs arguing in favor of their respective proposals following the conclusion of the hearing.
38. ALPA Merger Policy establishes in its Section 45.G.5 that the basis for the combination of the seniority lists is a “fair and equitable agreement†and further establishes the following goals, “in no particular orderâ€:
a. Preserve jobs.
b. Avoid windfalls to either group at the expense of the other.
c. Maintain or improve pre-merger pay and standard of living.
d. Maintain or improve pre-merger pilot status.
e. Minimize detrimental changes to career expectations. Plaintiff’s Exhibit 1 at p. 6. The fairness and equitableness of an ALPA seniority integration are measured by the degree to which it satisfies those goals.
39. In establishing that the combination of seniority lists “avoid windfalls to either group at the expense of the otherâ€, ALPA Merger Policy prohibits an arbitration award from affording windfalls to one pilot group at the expense of the other.
40. The AAA MEC Merger Committee and the AWA MEC Merger Committee pursued the procedures of ALPA Merger Policy through arbitration before a Board of Arbitration consisting of neutral arbitrator George Nicolau, and pilot neutrals Stephen Gilen (selected by the AWA MEC Merger Committee) and James Brucia (selected by the AAA MEC Merger Committee).
41. The Board of Arbitration conducted hearings in Washington, D.C. in December 2006, January 2007 and February 2007, during which both Merger Committees presented evidence and argument.
42. The parties filed post-hearing briefs in March 2007.
43. The Board of Arbitration issued its opinion and award to the parties on May 1, 2007. A true and accurate copy of the Nicolau Award is attached as Plaintiff’s Exhibit 2.
CLAIM FOR RELIEF
44. The allegations of paragraphs 1 through 43 are incorporated by reference under Super. Ct. Civ. P. 10©.
45. AAA MEC and AWA MEC pursued ALPA Merger Policy, including arbitration, to resolve their dispute over combination of the pilot seniority lists of the two airlines.
46. ALPA Merger Policy constitutes the parties’ agreement to resolve their dispute by arbitration.
47. The Merger Committees representing the respective MECs established the Board of Arbitration under ALPA Merger Policy.
48. The arbitration proceedings conducted by the Board of Arbitration chaired by Arbitrator Nicolau, including hearings and issuance of the Nicolau Award, occurred under ALPA Merger Policy.
49. The arbitration proceeding between the parties and the Nicolau Award were subject the standards for the combination of seniority lists established in Section 45.G.5 of ALPA Merger Policy.
50. The Nicolau Award violates ALPA Merger Policy and exceeds the powers of the Board of Arbitration under ALPA Merger Policy.
51. Pilot job growth at America West was stagnant before and after the 2005 merger between US Airways and America West.
52. America West pilots had no pre-merger expectation of flying wide body aircraft. Before and after the 2005 merger, wide body aircraft were flown exclusively by US Airways pilots. Wide body flying is among the most lucrative and prestigious assignments, which normally become available to pilots after many years of experience with an airline.
53. The Nicolau Award affords unwarranted windfalls to America West pilots at the expense of US Airways pilots by transferring to the America West pilot group 740 wide body international Captain positions brought to the merger by US Airways pilots, thereby enabling 40 percent of the pilots on the America West seniority list to obtain wide body international Captain positions in aircraft they had no expectation of ever flying prior to the merger.
54. The Nicolau Award harms US Airways pilots by depriving them of at least 788 international, wide body aircraft captain positions, thereby reducing their ability to promote to those positions and permanently depriving certain US Airways pilots of ever achieving such promotions. Age differences between the two pilot groups will result in the loss of more wide body international Captain positions by the US Airways pilot group than the America West pilot group will gain under the Award.
55. The Nicolau Award affords unwarranted windfalls to America West pilots at the expense of US Airways pilots by giving America West pilots promotional opportunities to Captain positions created by attrition among US
Airways pilots, which promotions the America West pilots had no legitimate expectation of receiving.
56. The improper windfalls for America West pilots granted by the Nicolau Award will have the effect of reversing by the year 2015 the respective share of captaincies currently held by the two groups, thereby allowing the much smaller America West pilot group to hold the vast majority of Captain positions.
57. The Nicolau Award violates ALPA Merger Policy by treating approximately 300 US Airways pilots as furloughees and denying them seniority credit despite their being in active service with the Company, in conflict with the Award’s reliance upon the January 1, 2007 seniority lists of the parties that show those 300 pilots to be in active service with US Airways. The Award places these recalled pilots (with an average length of service with US Airways of seventeen years) lower on the combined seniority list than America West pilots who were probationary new hire pilots at the time of the 2005 merger. By issuing an award in contradiction with the Board’s factual findings, the Award violates ALPA Merger Policy.
58. The Nicolau Award grants impermissible windfalls to America West pilots at the expense of US Airways pilots by placing junior America West pilots (some still on probation and in training with America West at the time of the 2005 merger) ahead of far more senior US Airways pilots (with an average length of service of seventeen years). This windfall will have the effect of unexpectedly
accelerating the career advancement of junior America West pilots, while retarding the career advancement (in some cases, permanently) of US Airways pilots with far longer service with the Company.
59. The Nicolau Award fails to “minimize detrimental changes to career expectations†of US Airways pilots, as required by ALPA Merger Policy, in that it significantly reduces the career expectations of US Airways pilots, including permanently depriving certain US Airways pilots of advancement to captaincies for which they had a legitimate expectation.
60. The Nicolau Award fails to “maintain or improve pre-merger pilot status†of US Airways pilots, as required by ALPA Merger Policy, by significantly reducing the career expectations of US Airways pilots, including permanently depriving certain US Airways pilots of promotions to captaincies for which they had a legitimate expectation.
61. The Nicolau Award contradicts its own factual findings, including those regarding the pre-merger status of the pilot groups and the active status of pilots at the time of the Award.
62. For the foregoing reasons, the Nicolau Award violates ALPA Merger Policy, fails to draw its essence from ALPA Merger Policy, and exceeds the Arbitration Board’s powers under ALPA Merger Policy. Therefore, this application satisfies the standard prescribed in D.C. Code § 16-4311 for vacation of the Nicolau Award.
REMEDY SOUGHT
WHEREFORE, the Plaintiffs US Airways Master Executive Council and John A. Stephan, its Chairman, request the following relief:
A. That the Nicolau Award be vacated in its entirety;
B. That the plaintiffs be granted such other and further relief as the Court deems necessary and proper.
Dated: June 26, 2007. Respectfully submitted,
/s/ Roland P. Wilder, Jr.
Roland P. Wilder, Jr. (D.C. Bar No. 69609) William R. Wilder (D.C. Bar No. 450086) BAPTISTE & WILDER, P.C.
1150 Connecticut Ave., N.W.
Suite 500
Washington, D.C. 20036
(202) 223-0723
(202) 223-9677
Counsel for Plaintiff US Airways Master Executive Council, Air Line Pilots Association, International
