To quote from the latest PHL Update:
“A question about the Declaratory Judgment case resulted in the point being made [sic: by Mike Cleary] that the Company is siding with the West on this specifically because the West represents a bargaining position that can’t be ratified. The result? Delay, and more delay.”
Really Mike? So according to you, we’re supposed to believe that the company has no case but somehow bulldozed a federal judge into believing that there was an actual controversy sufficient to meet the standards of Article III of the U.S. Constitution? Is that it, Mike?
Wrong.
The disconnect is not that there was a failure on the federal bench to not catch a “frivolous” lawsuit by the company. The only disconnect here is the failure for any of the leaders in USAPA to correctly articulate the irreconcilable conflict wrought by USAPA’s non-Nicolau objective.
We can dissemble our situation into easily recognizable components:
(1) Arbitration as called for under the Transition Agreement;
(2) Completion of the seniority arbitration with the result accepted by the company;
(3) Formation of USAPA to avoid the arbitration result;
(4) Changing unions does not relieve USAPA of its Duty to Fairly Represent or insulate USAPA from liability for failing in its DFR obligation.
(5) The law clearly holds that the company can be held liable for agreeing to contract terms which turn out to be a violation of the union’s DFR.
Point (5) is the reason we have the Declaratory Judgment. Contrary to what Cleary and Co. say, there is an actual, live and legitimate fear of harm for the company should they enter into a joint contract that doesn’t include the Nicolau. The legal theory is known as a “Hyrbid DFR”. Conveniently, USAPA’s founders neglected to disclose to the East pilots the existence of such a claim. I will expound upon this point further in another blog post, but for now recall Lee Seham’s offer of a cost neutral contract to the company in exchange for “labor peace.” A cost neutral contract would have saved the company vast amounts of money; over a hundred million under the Kirby alone. There was a reason he was doing this – he had to attempt to make it worth while for the company to buy off on the risk of being sued by the West pilots under a Hybrid DFR. The company expained it this way in their opposition to USAPA’s Motion to Dismiss:
“On the one hand, US Airways has a “real and reasonable” apprehension of harm if it accepts USAPA’s seniority demands because, as described supra (5:3-12), the West Pilots will then sue US Airways for, inter alia, facilitating or assisting USAPA’s breach of its DFR. The risk of such a lawsuit is not idle speculation. The West Pilots have confirmed in filings with this Court that they will bring such a suit. Indeed, they previously sued USAPA for refusing to negotiate for the Nicolau Award, and a jury found that USAPA had breached its DFR. Addington, 606 F.3d at 1178. While the Ninth Circuit reversed on ripeness grounds, it noted that the West Pilots’ DFR claim would be “unquestionably ripe” once a CBA was ratified. Id. at 1180 n.1.3 The Nicolau Award resulted from an arbitration that the West Pilots consider to be “final and binding,” and, as required by the Transition Agreement, US Airways accepted the Nicolau Award after it was presented by ALPA. The West Pilots consider that to be the end of the matter, and they will accept nothing less than implementation of the Nicolau Award. Thus, US Airways has a “real and reasonable” apprehension that if accepts any seniority proposal other than the Nicolau Award, the West Pilots will sue. Doc 61, pg 12.
The East rank and file pilots were deliberately misled by the founders of USAPA. Seniority is not like negotiating crew meals – far from it! We now have a live and justiciable controversy simply because USAPA aims to replace the arbitrated seniority list with something different. The Declaratory Judgment is just the first step to resolving USAPA’s aims to avoid the Nicolau, and there is no guarantee that Judge Silver will completely resolve it.
The choice is yours to make: we can continue to litigate this for another few years with the overwhelming likely result being a court order to use the Nicolau, or we just accept the arbitrated list today and remove the only obstacle standing in the way of a better contract and a better life for all. If you like your current situation and wages, then by all means for any of the other candidates as their platforms are guaranteed to keep all of us locked at our current pay and benefits. If however you are looking to finally get off a bankruptcy contract on the East and Contract 2004 on the West, than there is only one vote for you: Ferguson, Koontz and Holmes.
