Eric Ferguson (Candidate for President): March 7, 2012
When “Change USAPA” Means “No Change at All”
Dear US Airways Pilots,
I am honored to participate in the ongoing runoff election for the position of the President of the US Airline Pilots Association. When the votes are counted, the US Airways pilots will have made an important choice. That choice will determine the course of our union into the future. Our pilots will be choosing more than just a new set of leaders, as the differences between the remaining candidates go far beyond personalities. This election amounts to nothing short of a referendum on the fundamental premise of USAPA and the primary purpose for which it was designed. Throughout the course of this election, I will provide regular updates which will challenge the conventional wisdom and arouse the interest of the thinking man and woman. In the end, I believe the rational and analytical among us will choose me and my team based on our platform and the facts. Please visit www.fergusonforpresident.com for more information.
* * * * *
“There is no Plan B.” Stephen Bradford and Lee Seham made this idea clear to all of us during USAPA's campaign to become the new Collective Bargaining Agent for all US Airways pilots just prior to the NMB election in 2008. After four years, it has become obvious that they were serious when making that assertion. Every US Airways pilot continues to pay a dear price for this unprecedented lack of foresight.
Just two days before USAPA prevailed in the representational contest over ALPA and became the exclusive bargaining agent for the combined pilot group, they stated the following:
USAPA Update, April 16, 2008.
How can USAPA negotiate a much needed improved contract sooner than ALPA?
Simply stated USAPA removes the seniority integration impediment to the process of negotiating the much needed pay raise and contractual quality of life improvements, and USAPA does it on two important related fronts.
First – By replacing the two deadlocked MECs with one BPR (Board of Pilot Reps), the leadership impediment is dissolved.
* Second – By replacing an East/West dual pilot ratification process, doomed to failure on one side or the other, with a single combined East/West pilot group ratification process.
After the NMB election, when USAPA inherits the current contracts and the right to negotiate with the company on behalf of the US Airways pilots, USAPA will have a team of professional negotiators in place who will have a pilot negotiating advisory committee available to assist them.
We only ask that you look at what ALPA does, not what they say. ALPA has had 31 months to achieve contract improvements, yet has not even managed pay parity.
The foregoing represents one of the most distinct examples of empty promises in the history of organized labor. It was brought to you by USAPA founder and current Vice-President Candidate, Stephen Bradford. Bradford and his supporters, along with their successors, have all failed to deliver on any of those promises. Now, he and Gary Hummel ask for at least three more years to accomplish these goals. Now, over 55 months since Bradford's deeply flawed idea rooted itself in the minds of many pilots, there is no contract in sight, still no pay parity, and the deliberate removal of the separate MECs and the dual ratification process have all but guaranteed that the Nicolau will be included in any future contract. These are the facts.
So what have Bradford, Seham, and the rest of our “East Only” leadership accomplished so far? Together, they have manipulated the emotions of the East pilots in order to cling to power. First, they promised you a new contract with a Date-of-Hire seniority list. Then, as soon as USAPA was found guilty of violating its Duty of Fair Representation and was forced to honor the Nicolau Award, it immediately “discovered” the “snapback” provision of LOA 93 and began to promise the return of pre-bankruptcy wages. “Don't worry, we will never need a joint contract because we will win LOA 93 and you will shoot right to top-of-the-industry wages without having to worry about the Nicolau or a joint contract,” was surely what the “East Only” Pilot-4-Pilot Committee was telling all who would listen. Empty promises for certain, and the list appears to be growing longer as even more promises are being made by my East counterparts during this campaign, while not one of the first promises Bradford made has been kept.
Based on his first campaign message of the run-off, Hummel appears poised to continue the practice of making promises which have been proven to be unachievable over the last four years. Three more years will not solve our problem. In the first round of this election, Stephen Bradford and Gary Hummel promised that they would “let the courts decide” and bring you a joint contract soon. Perhaps this moderate-sounding message was an attempt to appease those who would like to see an end to the fighting and a new contract before they retire, but were not yet ready to vote for a “West” candidate. In Hummel's first campaign message of the runoff he has clearly abandoned this middling mantra, now giving the appearance of “doubling down” on the Date-of-Hire effort. This is likely an attempt to garner support from the extremist who voted for another East candidate in the first round.
Hummel's attempt to play on the emotions of the seniority dispute does not differ from the rhetoric which brought you USAPA in the first place. The tone is identical to that which barely sustained USAPA during the Cleary administration. Irrelevant facts as to how other lower-paid and non-pilot work groups were integrated have no bearing on the fact that the pilots were integrated as they always have been and now, by law, will be in the future; by arbitration. All the while ignoring that not even USAPA's “Date-of-Hire Proposal” itself is based on this criteria, Hummel tries to remind junior East pilots how much he cares about their plight.
Whether going “all in for DOH,” or taking the slightly softer angle of “letting the courts decide,” a full analysis of a realistic timeline is in order. By our calculations, “letting the courts decide” will take another 3- 4 years at the minimum, and the “all in” approach will take even longer. Unless your goal is to remain a burden to the industry average for many more years (thus harming the salaries of all airline pilots), you must choose Eric Ferguson and Jeff Koontz over Gary Hummel and Stephan Bradford.
Since the Company (as well as the Mediator) have already stated that no serious negotiating can take place until the seniority issue is resolved in the courts, or until the Nicolau is used in Section 22 of a joint contract, we will remain stagnate. According to US Airways Complaint for Declaratory Relief:
US Airways remains neutral regarding the merits of the underlying seniority dispute between the two pilot groups, but respectfully asks the Court to resolve this matter so that it and its pilots can move forward in completing negotiations for a new combined post-merger CBA. Doc. 156
It is true that the existence of the seniority dispute remains the primary impediment to an improved contract for all US Airways pilots.
On Feb 21, 2012, all parties filed their “Response Briefs” to the “Motions for Summary Judgment.” In its filing, USAPA asserted a right to file an additional “Reply Brief” by March 12th. USAPA's filings seek extensive additional discovery (without regard to the fact that Judge Silver already denied this during the December 1st, 2011 “Scheduling Conference”). It is clear that USAPA's only remaining strategy is to again delay the proceedings and drive up the costs for all parties. Depending on whether or not Judge Silver decides to schedule oral arguments, or grant USAPA's request for additional discovery, her decision is likely several months away. The timeline only grows if she does grant USAPA's requests. If she chooses to allow the additional discovery, then the record will not be complete enough to allow her to rule until many months from today. On December 1st, Judge Silver also mentioned the possibility that she could deny both Motions (USAPA's and the West Pilots'), which would require going to trial on Count III. This would likely take at least another year to conduct.
However, based upon the record so far, it is expected she will rule in favor of one of the Motions currently before her. If she does decide to grant one of the two motions, the losing party can then appeal to the Ninth Circuit. The Circuit Court is obligated to take the appeal, but is not required to hold oral arguments as it did in the Addington appeal. According to its own website, the median time from filing an appeal to disposition for the Ninth Circuit is 17.4 months. In Addington, which was handled on an expedited basis, the appeal process took about 12 months.
The best-case scenario, therefore, would result in the appeal process being complete by early 2014 (not including a likely appeal the Supreme Court). If USAPA is granted its request for additional discovery, or if the judge is unable to rule on either Count I or Count II, then this process will grow longer by six-to-twelve months. In any case, US Airways management will not be able to negotiate until after it has found legal clarity regarding the seniority dispute through the justice system. At that time, even with equally motivated parties, it could take nine or more months to negotiate a contract.
It is critical to note that, even if the courts allow the union and the company to negotiate a “non-Nicolau list” USAPA will still be subject to the usual DFR restrictions. This means a possible injunction and another DFR lawsuit which will undoubtedly be filed as soon as a contract with a non-Nicolau seniority list is finalized. Adding nine months for a contract to be negotiated and ratified, then another two years (or more) for another lawsuit to run its course, and it will then be late 2015 to early 2016 (at the earliest), before we see any benefit from a joint contract. That is almost four years from now, eight years after USAPA became the union, nine years after the Nicolau Award was issued, eleven years after the merger was announced, twelve years after LOA93 went into effect, and 19 years since US Airways pilots last ratified a new labor contract. No doubt this will result in a new and dubious record all courtesy of the continuation of Bradford's idea with Hummel at the helm should the US Airways pilots choose this path.
During the first round of the election, it briefly appeared that even Hummel and Bradford acknowledged that Date-of-Hire was never going to happen. Now that we are into the runoff phase of our election, it seems that their “let the courts decide” mantra was merely a temporary political tool designed to win votes through obfuscation. It is once again clear they believe USAPA has an absolute obligation to follow the “Date-of-Hire Objective” contained in its Constitution (an invention of Bradford himself) and logic would say they must also believe that USAPA will be required to go all the way to the Supreme Court to defend its constitution if necessary. In light of Hummel's latest campaign message, it seems that “letting the courts decide” cannot mean that they will end the seniority fight if the ruling from Judge Silver goes against USAPA. Doing otherwise would mean that they too would have to “ignore the Date-of-Hire objective” as I propose. Doing anything less will undoubtedly subject the association to litigation from a group of dissatisfied East pilots. But those pilots cannot prevail when suing to enforce an illegal objective which the majority will have chosen to ignore through the ratification of an industry-leading contract which does not harm them. At least all US Airways pilots will be able to enjoy the benefits of a new contract during their short-lived attempt to enforce the impossible.
In addition, Bradford and Hummel are already telling their supporters that, should the West prevail in court, they plan to insert language in other sections of the contract that will mitigate the Nicolau and favor the East at the expense of the West, just like USAPA's DOH proposal. This plan ignores the fact that ALL of these “loopholes” would result in another violation of USAPA’s Duty of Fair Representation which will only lead to additional litigation. This plan likewise ignores the fact that the company will be just as unlikely to agree to any of these ideas during negotiations as they have been to agree to USAPA's DOH proposal. Indeed, even the mere suggestion of intentionally pursuing continued “Separate Operations” is a DFR violation in itself. USAPA, per its duty under the RLA as the exclusive bargaining agent for ALL US Airways pilots, and even by the plain language of the Transition Agreement, is obligated to pursue an improved and combined agreement for all of the pilots it represents. Our opponents should understand this also includes the West pilots no matter how much they would have you believe otherwise. It cannot be done, and this plan amounts to nothing more than another impossible fantasy aimed at prolonging the first nightmare. Do not believe it.
By way of contrast, an idea which would not violate USAPA’s Duty of Fair Representation and would thus avoid litigation was championed during the “Wye River” negotiations in February of 2008 by me, USAPA Presidential Candidate Eric Ferguson. I mentioned this in my May 12th, 2010 campaign email during the EVP elections:
I haven't yet mentioned the fact that I was on the AWA Merger Committee and was present at the fabled “Wye River” event hosted by ALPA during the first week of February 2008. Something I proposed and championed then and now,is extended FO pay scales. I strongly believe that our pay scales should extend to 85% of captain pay at 20 years, as opposed to capping them at 68.3% (East) or 66% (West). This would apply only to those who could not otherwise hold a captain seat after twelve years. I went so far as to create a spreadsheet and argue for the inclusion of this component.
This proposal illustrates one of the major differences between myself and Gary Hummel. One continues to offer a solution that will benefit ALL US Airways pilots in the near future, while the other has just recommitted to years of continued litigation with no benefits for any pilot. Now, Gary Hummel has thrown in his lot with the very man who created the most under-performing independent union in airline history.
* * * * *
A vote for Ferguson, Koontz and Holmes means you are ready to move beyond the seniority dispute and honor the arbitration in the manner in which it was always intended. A vote for Ferguson, Koontz and Holmes means you are ready to properly employ the leverage granted to our pilot group by way of the Transition Agreement and the Nicolau Award to achieve an industry-leading contract now. Our opponents cannot offer this while continuing their efforts to vanquish a large minority of the pilots which they are supposed to represent in an ongoing and futile quest for an illegal Date-of-Hire contract. After four years, the truth could not be more obvious. Remember, even with 100% voter turnout, we need only one-in-four East pilots to vote for Ferguson, Koontz and Holmes to prevail in this election. Your vote matters!
Please visit www.fergusonforpresident.com
Thank you for your time and support,
Eric Ferguson
