Today, Judge Silver denied USAPA’s Motion to Dismiss the US Airways' declaratory action. You can read the order here. Within the order, Judge Silver denied USAPA’s Motion to Drop the West pilots as a party to the company’s suit, and denied the West pilots’ “cross-claim” against USAPA.
Contrary to USAPA's repeated assertions that the seniority issue is settled, the company’s declaratory action- which is based solely on the seniority dispute- is alive and well. No matter how many times USAPA has claimed victory; today's ruling proves that it has not prevailed, as another trial looms just over the horizon.
(1) This action necessarily raises issues nearly identical to the issues in Addington. As a review, the company raised three questions. Because of today’s ruling, all three questions will proceed to be litigated:
(I) Whether agreement to a non-Nicolau seniority list violates the Railway Labor Act.
(II) Whether agreement to a non-Nicolau seniority list does not violate the RLA.
(III) Regardless whether use or non-use of Nicolau violates the RLA, that US Airways be immune from liability caused by agreeing to a non-Nicolau list.
It is straightforward to see why claims I and II invoke the same legal issues over which theAddington jury deliberated. Mr. Bob Siegel represents US Airways, and it was clear in his oral arguments before Judge Silver on February 9th that the effect of the Ninth Circuit’s dismissal of Addington only on the grounds of “ripeness” created an intractable position for the company:
“On the seniority issue, the company has to tell the union whether or not it will or will not amend the transition agreement and acquiesce to a non-Nicolau seniority list. We have to answer that question and we don't know -- Your Honor, the only thought I want to emphasize is the reason we filed is because we don't know whether that proposal is legal or not. We're concerned because we are aware of a jury verdict that found it to be illegal. We have a ripeness ruling from the Ninth Circuit, and we have a demand from the union that we accept it, the non-Nicolau list.” [Feb. 9th Transcripts, Page 22]
Pay particular attention to Mr. Siegel’s use of the word “amend.” It is USAPA’s competence to amend the Transition Agreement which is really in question in the company’s declaratory action. As an agent, USAPA owes a duty to all pilots which it represents. Hybrid DFR law makes it clear that liability for failing to meet the “Duty of Fair Representation” does not stop with the union. A company can be held liable if the company knew (or should have known) that the union was not meeting its duty to fairly represent its members when bargaining. The failure to represent here is with regards to the seniority list. Thanks to USAPA, there is no separate West entity. Now, nobody knows if the West is being fairly represented when a seniority list is proffered that is not the Nicolau. The company is faced with the prospect of negotiating with USAPA to ignore a binding arbitration and instead, agree to a DOH seniority list in a joint collective bargaining agreement in lieu of threatened work stoppages. Mind you, the same DOH list has already been found by one jury to be illegal in this circumstance. Again, we will refer to Mr. Siegel’s oral arguments of February 9th:
“Your Honor, I'm quite aware of the law in this area. There's a lead case that discusses this, a District Court decision by Judge Conlon in Chicago in 1991 involving United Airlines. I represented United in that case. I actually was able to prevail on the issue of whether the carrier was or was not a colluder. But there are cases which I don't, as a carrier lawyer, don't favor but there are cases which hold that a carrier can be, in certain factual circumstances, held liable as facilitating, aiding, abetting, or colluding with the union in the adoption and agreeing to an illegal contract term. *** Unlike the Rakestraw case, as we get this threat, we're fully aware that the DFR argument that Mr. Harper's clients want to make was presented in a nine-day trial to a jury and to Judge Wake. We're fully aware that the facts that were presented caused a jury to find that the proposal made by the union breaches its duty of fair representation.” [Feb 9th Hearing Transcripts, pages 12-13]
(2) Just as the company’s declaratory action is alive and well, so too is the Nicolau Award. The Nicolau was the second exhibit admitted into evidence during Addington, and it is likely going to be among the first exhibits admitted in the company’s declaratory action. Rather than “collecting dust” (or whatever idiom USAPA used to allege that the Nicolau Award was impotent under USAPA) the Nicolau remains very much attached to both the East and the West. The Nicolau did not “go away,” as Lee Seham so confidently pronounced during USAPA’s campaign to replace ALPA. Nicolau is the standard against which USAPA’s duty to represent all pilots will be measured.
(3) We are three and half years into USAPA’s effort to pretend that the binding arbitration does not exist. Lee Seham exuded confidence in his response to an East A330 captain that the company would gladly deal on seniority in exchange for a “cost neutral contract.” Notwithstanding the obvious message from Seham that his clients are more than willing to sell their seniority, Seham and the USAPA founders mistakenly assumed that the company could actually be in a position to negotiate seniority. Again, we look to Mr. Siegel's statement in court:
“As to negotiations, this is not a subject that we bargained about, Your Honor. To give the reality of the labor negotiations, the carrier in a post-merger situation, waits for the union to give it an integrated seniority list. And so long as certain conditions are met, which are actually laid out in the transition agreement so that we're not required to do something called flush the system or otherwise incur a lot of extra training costs, we accept their list. * * * Your Honor, with all respect, on this, subject, it's yes or no. We're not sitting here bargaining a pay rate or a pension plan.” [Feb 9th Hearing Transcripts, page 19]
Ergo, the company cannot be thought of as a party capable of negotiating seniority. This is a principal assumption made by the founders of USAPA, which has FAILED the test of reality.
(4) The Addington trial does not go away. Mr. Siegel:
“I have not had a chance to talk to the parties but, obviously, one possibility that seems logical to us is that there would be some type of ability to transfer the record from Judge Wake's courtroom to this courtroom so that if there needs to be any resolution or material issues of fact or supplemental evidence, that can be done very quickly. But rather than reinvent the wheel, assuming that that is something that the two pilot groups would want, we would certainly support moving on that as quickly as possible without delay.” [Feb. 9th Hearing Transcripts, page 23]
(5) Our final point is to ask rhetorically how a federal mediator can possibly continue negotiations in light of the fact that the company’s declaratory action is ongoing in federal court. Despite the snail’s pace of negotiations brought on by a puppet NAC, the issues being litigated in federal court are intertwined with many sections in the contract. Seniority affects all of the major (and contentious) provisions of a contract: pay, scheduling, retirement, medical, and many others. Congratulations USAPA! Instead of securing a contract in 90 days, it seems more plausible that you will not secure a contract for 90 months.
Now that litigation has resumed, you can expect more updates from Leonidas. We are entering a new chapter in the defense of our careers. We appreciate your robust financial support, which has made our ongoing legal defense possible. With your continued support, we will be able to finish this dispute and move ahead for the benefit of all US Airways pilots.
Sincerely,
Leonidas LLC
www.cactuspilot.com
