From Leonidas Update for November 30th, 2008
Dear former AWA Pilots,
We will keep this week's update fairly short as we have been quite busy preparing our case against USAPA. Judge Wake has set a rather compressed timeline and we are moving toward a trial at what can be thought of as light speed for a legal matter. Our first deadline is this coming Friday and we are putting the final touches on meeting that deadline. What is particularly invigorating is how this is really coming together for us; the attorneys, the six plaintiffs, and the Leonidas members are attuning nicely and we are very thankful that the opportunity to get this matter litigated is close at hand. Remember that it was within one day of our filing that the adversary was confidently crowing that we would be stopped dead in our tracks. As a matter of fact, their attorney even accused our attorneys of having no idea of what they (STK) were doing. Well, somebody sure has no idea what they are doing, but it is certainly not STK. Rather, it probably is the same person that wrote this on September 4th:
[Again, USAPA and/or Seham quotes are in red, are italicized and one point font smaller, while Leonidas quotes are in blue.]
“Our law firm has completed a preliminary review of the Verified Complaint and determined that it has no legal merit whatsoever. Moreover, it is the law firm’s opinion that the Verified Complaint betrays substantial ignorance of the Railway Labor Act, as reflected by the absence of appropriate statutory citation, the use of terminology not recognized under the RLA, and the use of terms inappropriately borrowed from non-RLA labor law.â€
Rrriiight. I guess we are not all that “ignorant†after all! Sarcasm aside, what is really troubling is that Seham sold the self-appointed USAPA leadership on his flawed legal belief that a simple majority can do whatever they wish to the minority regardless of previous obligations and notwithstanding long held jurisprudence which rebukes the exact type of "tyranny of the majority" which Seham evidently believes the law will allow. Somehow, that seemed too good to be true. Perhaps Seham should have recalled a letter he wrote to another former client of his - the AMFA [Aircraft Mechanics Fraternal Association], Local 9:
“Most adults understand that they cannot evade their contractual commitments, (e.g., home mortgages, car loans, sales agreements) merely by changing attorneys. A childly suggestion to the contrary would be instinctively rejected as falling into the category of if it's too good to be true, it isn't.â€
Well, we agree with him there, but the real question is how that statement reconciles with what he sold to the self-appointed USAPA leadership, and subsequently to a vast majority of the East pilots. At the time there was already a binding arbitration which had its legal underpinnings in a contract between the company, ALPA, the East MEC and the West MEC. This contract functioned as a modification to both East and West Collective Bargaining Agreements. Duties and obligations flowed from this agreement to all four parties. Just like changing attorneys doesn't eliminate an existing obligation, the law sure seems to suggest that a collective bargaining agent inherits the duties and obligations of the previous union; especially in the situation where the sole intention of changing unions was to repudiate those existing obligations for the benefit of the majority and to the complete detriment of the minority. Again, if it is too good to be true, perhaps it isn't.
Although it is improbable that the die-hard USAPA supporters are questioning where their ship is headed at this point, we are hearing there are plenty of tremors running throughout the rest of the East ranks over the disconnect between what the self-appointed USAPA leadership has said and continues to say, and what is in fact occurring. Already there are nearly two hundred Shuttle and Empire pilots wondering where the USAPA promise of strict DOH went. For the others, there is an unavoidable realization that what has been promised as legal fact is anything but that. ALPA was quite clear that Rakestraw could not support the position of what the USAPAians were claiming. Then, we heard that same legal conclusion again from the federal judge who will be presiding over our trial. They sounded so confident in their pre-USAPA rallies, and their confidence continued through their mechanical numbers vote. They rolled along in their happy belief until reality hit them square between the eyes in Judge Wake's courtroom last month. This begs the question, "What has all of this cost?" As a public service to all US Airways pilots, we will once again publish a running total of just how much (minimum) this experiment has cost all of us - and saved management. Nice job Seham, you have now saved (as of November 30th) Doug Parker over $72,000,000 (that's million, as in six zeros) on the backs of all US Airways pilots. That sure is one interesting way to advocate for labor. Anyway, on November 26th, USAPA published a lengthy update in which they stated:
“In terms of immediate impact, the Court’s recent decision in the Addington case was precisely what USAPA had predicted to its members: the dismissal of the Plaintiffs’ two furlough-related causes of action and a determination that the duty of fair representation (DFR) count should proceed to an expedited trial. As USAPA had also anticipated, the denial of USAPA’s motion to dismiss the DFR claim was due, in part, to the Court’s obligation at this procedural stage to accept all of the Plaintiffs’ factual allegations as true. This is what makes a motion to dismiss difficult."
That being said, USAPA acknowledges that Judge Wake’s decision contains preliminary legal and factual findings that are cause for concern as the litigation moves forward:
"Because these findings are not based on full consideration of case precedent and/or the factual record, USAPA remains confident that its position will prevail either before Judge Wake or, if necessary, on appeal to the Ninth Circuit.â€
What a game plan! We will win on appeal (maybe) if the three appellate judges are completely blind and illiterate (which they aren't). Here is what Judge Wake really said:
“The economic consequences of a lapse in employment—loss of pay, status, and other benefits—can be remedied for the most part with damages and a permanent injunction in the near future. * * * If preliminary relief were denied and permanent relief granted later, the West Pilots could be largely compensated for their loss by the union, the airline, or both. Of particular importance in alternatively denying a preliminary injunction on balance of hardships is this court’s ability and resolve to conclude this case on an accelerated basis, within three months or less.â€
Judge Wake declined to grant our request because he plainly felt (based upon testimony from the company that we would not be further harmed within three months) that it was unnecessary due to expedited time line that he had in mind to resolve this dispute. The company would be insane to act contrary to their sworn testimony by further harming the West while this matter is before Judge Wake. If they continue to act without regard to our “class,†we are certain the judge will take note. We will see, as the company has given scant consideration to the West since the day management first induced the West to support this combination with US Airways.
An objective reading of the Transition Agreement clearly shows that the document was designed for short-term us, and that during this period of separate operations, all parties would equally share in the success or failure of the “New US Airways.†Well, guess what? It hasn't worked out that way at all. The East has enjoyed all of the benefit (offer and acceptance of recall to all who were on furlough when the merger was announced, plus the assimilation of all CEL pilots [who never flew mainline before] and the addition of 115 new-hires, all of the EMB-190s, and three ex-ATA B-757s), while the West was reduced almost 10% through natural attrition, and is now being reduced a further 10% by way of furloughs and downgrades. Remember when we were enticed to vote for the TA and its pitiful EMB-190 rate because of all the "benefits" included in the Transition Agreement as well? Well, as of today, we have received no benefit from that agreement. Furthermore, the company apparently feels that they alone have sole discretion to dish out pain to either pilot group as they see fit. If they decide that the West take all the pain, then they evidently believe the law supports that position. We strongly disagree and we will vigorously contest the company's apparent belief as the discovery process unfolds.
The reality is that the law in no way supports what USAPA has promised. All East pilots would do well to now accept the fact that the West will not quietly acquiesce to your “Date of Hire,†wish. We will not go away…ever. We do, however, offer the following: once the gavel falls and justice is served, you can bet that nearly every West pilot will conduct themself as though this whole tragedy never took place. Unlike the rampant gloating after the USAPA election, you will see no gloating on the West. Why? Because - we told you so - and we knew that the day would come when USAPA's lies and deceit would run straight into the brick wall of reality.
There is one final item of importance that we would like to discuss and that is the "Cactus 18." While Leonidas has been busy advocating for the West against a union whose sole purpose is to take from us that which belongs to us, namely our seniority, there has been an ongoing and important legal battle taking place between USAPA and a handful of West pilots known as the “Cactus 18.†[The RICO suit was also filed against the AWAPPA Board of Directiors which included Jeff Koontz and Eric Ferguson who at the time were on the AWAPPA Board in addition to being the co-founders and current directors of Leonidas. AWAPPA attorney Jeffrey Freund has ably handled the the RICO suit for the AWAPPA Board only, including Koontz and Ferguson. There is no connection between Leonidas and the Cactus 18 nor is there a connection between the AWAPPA Board and the Cactus 18, other than the fact that all of us are West pilots.] It is because of this - the fact that we are all West pilots - that we at Leonidas are broaching the subject of the Cactus 18 this evening. Every West pilot knows that this litigation was designed to bankrupt the West pilots and intimidate us to surrender our rights to a union elected for the sole benefit of shelving Nicolau. Well, so far there has not been any surrendering and with our trial date imminent, there will not be any surrendering either. What has happened is that Seham managed to get his frivolous RICO complaint dismissed WITH PREJUDICE (which in legal parlance means, ". . . and don't come back, either"). The issue with the Cactus 18 is not over and we at Leonidas would encourage every West pilot to support their legal fight as well. Seham reserved a number of "John Doe" defendants and it is critical for each West pilot to understand that that suit could just as easily been aimed against any West pilot. For our common defense and for the defense of each West pilot individually, it is critical that the Cactus 18 be supported through donations. Therefore, we at Leonidas strongly recommend that all West pilots give (in addition to your ongoing Leonidas support) to the “Cactus 18 Defense Fund:â€
AWA Pilots Legal Expense Trust
3626 West Glass Lane
Phoenix, AZ. 85041
Checks may also be dropped in Ron Gabaldon's mailbox, as he is the trustee of the fund.
Lastly, we feel that AWA pilots, flight attendants and their families could use a little good ole fashioned R&R. Therefore, we are planning a “Family Awareness†event for next Sunday, December 7th. All AWA Pilots and their families, in addition to all former AWA Flight Attendants and their families, are invited to a day of fun at the “Tempe Town Lake.†We will be meeting under the “blue tent†from 1030 to 1630. The day promises to be great fun for you and your family. Reserve the date, and please click here for a flyer that you may print and distribute to your friends with additional information about the event.
Thanks again for you ongoing support and commitment to our just cause.
Leonidas LLC
