There Can Be No “Mitigation”
Dear US Airways Pilots,
It has come to light that certain candidates running for office may be promoting a “whisper campaign” regarding yet another alternate plan should USAPA be unsuccessful in Judge Silver’s courtroom. It appears they might be “floating” these ideas in effort to garner support in this election from those who are still hoping to find a way to subvert the effects of the Nicolau Award. This plan includes any number of means to “mitigate” the arbitrated seniority list through the alteration of other sections in the combined contract.
One idea involves a scheme whereby pay is based solely on longevity with no differentiation for seat or equipment flown. This plan includes an extremely protracted and non-linear pay scale, with the top pay found around the thirty-year mark. This would be heavily weighted to benefit the East pilots almost exclusively. Other components of this “Plan C” would attempt to further delay combined operations, or place fences around the various bases, or preserve East Coast upgrades for East pilots only, or add a “reinstatement rights” component to the new contract so that any East pilot who, however long ago held captain, would be granted a “first right of refusal” for a new captain vacancy ahead of any former AWA pilot.
While these ideas may sound enticing, the people behind such schemes (probably the same people behind the creation of USAPA in the first place) should recognize that these efforts will only lead to continued and prolonged DFR litigation. Any such attempts will only lead to further delay in achieving the contractual improvements our pilots so badly need. Unless our goal is to remain separate and stuck under the current contracts for another nine years, then US Airways pilots should not even contemplate these plans.
The architects of this “whisper campaign” fail to mention that certain actions already taken by the current USAPA leadership have ensured these efforts will also fail if attempted. In its fervor to give the illusion of progress at the negotiating table, USAPA’s Negotiating Advisory Committee (with BPR approval) recently presented its “Comprehensive Contract Proposal” to the company. This proposal did not include any of the above provisions, but it did unconditionally include USAPA’s Date-of-Hire seniority list. Therefore, when the courts do mandate the inclusion of the Nicolau Award in a contract, it will be obvious that the addition of these new provisions in the joint contract are nothing more than another attempt to “mitigate” the Nicolau Award.
US Airways’ Declaratory Judgment lawsuit specifically ask in its first “Prayer for Relief,” for a declaration that:
“…entry into a collective bargaining agreement between US Airways and USAPA which does not incorporate the Nicolau Award would constitute a breach of USAPA’s duty of fair representation to the West Pilots in violation of the Railway Labor Act, and therefore US Airways is prohibited from accepting or implementing a non-Nicolau seniority list…”
It is clear that a “Date-of-Hire” list is a “non-Nicolau seniority list.” The other side of the non-Nicolau coin is a contract that embodies the Nicolau in Section 22, but then indirectly modifies the Award through the implementation of the ideas promoted by the whisper campaign. These efforts would clearly amount to an indirect pathway to a non-Nicolau list and could be seen as a clear violation of the 9th Circuit’s admonition from Addington:
“By deferring judicial intervention, we leave USAPA to bargain in good faith pursuant to its DFR, with the interests of all members — both East and West — in mind, under pain of an unquestionably ripe DFR suit, once a contract is ratified.”
It is my belief that, just like today, the company would be unwilling to negotiate provisions like these in the first place because of the legal exposure it would face under the “Hybrid DFR” doctrine. This, in addition to the increased costs of administering such provisions. The company has already proven its recalcitrance to negotiate sections of the contract which are not clearly in compliance with USAPA’s DFR obligation to all US Airways pilots. Proof of this can be seen in the lack of progress at the table and in the very existence of the Declaratory Judgment lawsuit. Therefore, attempts to negotiate these provisions envisioned by other candidates is likely to be met with the same reluctance on the part of the company as have other efforts to subvert the arbitration. This plan will not yield a worthwhile Tentative Agreement in a timely fashion.
The US Airways pilots must begin to work together in utmost good faith to negotiate a legal contract that benefits the bargaining unit as a whole- that is, ALL US Airways pilots. We cannot continue to look to one another for recompense of past wrongs. This can only be done by ending the litigation, accepting the arbitration, and moving forward together. As a unified group, we can properly negotiate the higher wages, contractual improvements, and other protections required to achieve an industry-leading and ratifiable Nicolau-based labor contract. The mandates of the Transition Agreement and the Nicolau Award, combined with recent industry developments, now give the US Airways pilot group more leverage than it has ever enjoyed before.
Because of their very platforms, all other candidates will fail to take advantage of the opportunities before us as they continue in the same direction which has led us all nowhere over the last five years.
Only by electing Ferguson, Koontz and Holmes will USAPA enjoy a new direction by which you and your family will realize concrete gains in the near future.
Sincerely,
Eric Ferguson
