- Joined
- Feb 10, 2011
- Messages
- 1,647
- Reaction score
- 5,392
June 7, 2011
Leonidas Update
It was one year ago Friday, June 4th, that the Ninth Circuit published their ruling that the Addington case was not ripe for adjudication. In a split decision, Judges Tashima and Graber left “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.” [Addington, FN1 pg. 8008] We made bold the last part of that sentence since USAPA and Mike Cleary regularly leave it off of their updates. The meaning of that holding could not be more clear. It was the judicial equivalent of saying, “we have no comment at this time, but bring the case again when there is a completed contract if you are not satisfied with the seniority section.” The West will be happy to present the case again because we have a high degree of certainty that nothing is going to change at USAPA. It is USAPA that made the case against itself in Addington, and looking back over the past year, USAPA continues to make the case for the West pilots.
It is hard to comprehend how anyone could misunderstand the plain meaning of the Ninth’s holding, yet USAPA has managed to take what was precise and morph it into an unrecognizable form. If USAPA had “won” as they insist, then why are we writing this evening – a full year after the Ninth – with a date-of-hire contract being as distant and elusive as ever? If USAPA is free to negotiate seniority, then why didn’t the company’s declaratory action get dismissed as the union requested? The answer to both of these questions is that USAPA has been dead wrong about everything they say regarding Addington. None of the West claims died when the Ninth ruled. In fact, West claims have only grown stronger due to USAPA’s unrelenting and blatant discrimination. They do it so much that they do not even realize when they are doing it. Over time, the West has learned to live with the reality that we will never be fairly represented by USAPA in its present form. The West has only strengthened in solidarity, and this is what we want to say this evening: Leonidas is very proud of this pilot group! We have stood shoulder to shoulder and have successfully defended our careers. We see USAPA’s antics for what they really are, what they manifest, and what they can do for us in DFR II. In summary, only an impotent bargaining agent would act the way USAPA has acted, and USAPA’s failure to achieve anything meaningful over the past three years only proves we are correct.
We know many of you are looking for specific answers to how the declaratory action will play out, and we will answer your questions as best we can. Since the declaratory action is still in its infancy, we cannot do any better than to speak in broad terms at this time. We will narrow our analysis as the case develops, but for now we offer this synopsis:
(1) In previous updates we have expressed that it seemed that a principal concern of the Ninth was to avoid judicial intervention which might change the dynamics of the Section 6 process. That is why the Ninth’s conclusion (which we quoted in the first paragraph) restates the union’s legal duty to represent all pilots, and warns that the union’s execution of their duty to fairly represent will be judged once there is a complete contract. While we believe the Ninth ignored the mountain of evidence which made our case ripe already, we must point out that the Ninth did not relieve USAPA of its duty to fairly represent the West pilots and that a jury found that DOH would fail to meet that standard.
(2) Judge Silver appears to be concerned about adhering to the intent of the Ninth’s ruling in Addington. She carefully crafted her recent ruling to address concerns expressed by the Ninth's dicta in Addington. Application of the non-intervention principle from Addington to the company’s declaratory action would have the effect of limiting what Judge Silver will declare (rule) with regards to future events. In other words, unless something is a known fact today and cannot change during the Section 6 process, then we are inclined to think that Judge Silver will not rule on something that is contingent or speculative. Doing so would be altering the dynamics of negotiations between the company and USAPA. That is something that the Ninth was unwilling to do between USAPA and the West pilots and we believe the same non-interference policy will be applied in the declaratory action. What that means is this: we feel that the district court will not reach a clear ruling on the company’s Claim II, which asks whether a non-Nicolau list violates the Railway Labor Act. Nobody knows what a non-Nicolau list will look like until we actually see it in the form of a ratified contract. Without a clear resolution for Claim II, USAPA is stuck because the company has already made it clear in both oral and written arguments to the court that the company is not inclined to negotiate seniority; the company sees its role as simply the recipient of a seniority list only. That seniority list must be a legal seniority list (i.e. one that is not the product of a union breaching its DFR) because the company’s liability under a Hybrid DFR action turns on the union’s execution of its duty to fairly represent in concert with the company. The Ninth Circuit ruled that the district court is not to examine USAPA’s DFR with regards to seniority until there is a completed contract, so the company understandably wants to know now whether USAPA’s non-Nicolau list will be a breach of the union’s DFR.
(3) We expect that relevant facts from Addington will be imported into the company’s declaratory action, against USAPA’s vehement objections. The Nicolau Award is a known fact not subject to change. The rights and obligations embodied within the Transition Agreement at the time the T/A was signed are clear and unambiguous. Regardless of how those two documents get into the declaratory action, both are relevant and instructive and both will be admitted into the company’s declaratory action. Both are known facts not subject to change during the Section 6 process.
(4) We have no way of knowing how fast Judge Silver will process the company’s declaratory action, but we believe that one year should be enough to get through the District Court, and another year to get through the Ninth Circuit is realistic. We cannot, however, forget that almost one year has already passed since the lawsuit was filed, so the total time required to decide this lawsuit could stretch well beyond three years.
That is all for this evening. Thank you for you support and trust. Together, we will see this seniority dispute through to the end.
Sincerely,
Leonidas LLC
www.cactuspilot.com
Leonidas Update
It was one year ago Friday, June 4th, that the Ninth Circuit published their ruling that the Addington case was not ripe for adjudication. In a split decision, Judges Tashima and Graber left “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.” [Addington, FN1 pg. 8008] We made bold the last part of that sentence since USAPA and Mike Cleary regularly leave it off of their updates. The meaning of that holding could not be more clear. It was the judicial equivalent of saying, “we have no comment at this time, but bring the case again when there is a completed contract if you are not satisfied with the seniority section.” The West will be happy to present the case again because we have a high degree of certainty that nothing is going to change at USAPA. It is USAPA that made the case against itself in Addington, and looking back over the past year, USAPA continues to make the case for the West pilots.
It is hard to comprehend how anyone could misunderstand the plain meaning of the Ninth’s holding, yet USAPA has managed to take what was precise and morph it into an unrecognizable form. If USAPA had “won” as they insist, then why are we writing this evening – a full year after the Ninth – with a date-of-hire contract being as distant and elusive as ever? If USAPA is free to negotiate seniority, then why didn’t the company’s declaratory action get dismissed as the union requested? The answer to both of these questions is that USAPA has been dead wrong about everything they say regarding Addington. None of the West claims died when the Ninth ruled. In fact, West claims have only grown stronger due to USAPA’s unrelenting and blatant discrimination. They do it so much that they do not even realize when they are doing it. Over time, the West has learned to live with the reality that we will never be fairly represented by USAPA in its present form. The West has only strengthened in solidarity, and this is what we want to say this evening: Leonidas is very proud of this pilot group! We have stood shoulder to shoulder and have successfully defended our careers. We see USAPA’s antics for what they really are, what they manifest, and what they can do for us in DFR II. In summary, only an impotent bargaining agent would act the way USAPA has acted, and USAPA’s failure to achieve anything meaningful over the past three years only proves we are correct.
We know many of you are looking for specific answers to how the declaratory action will play out, and we will answer your questions as best we can. Since the declaratory action is still in its infancy, we cannot do any better than to speak in broad terms at this time. We will narrow our analysis as the case develops, but for now we offer this synopsis:
(1) In previous updates we have expressed that it seemed that a principal concern of the Ninth was to avoid judicial intervention which might change the dynamics of the Section 6 process. That is why the Ninth’s conclusion (which we quoted in the first paragraph) restates the union’s legal duty to represent all pilots, and warns that the union’s execution of their duty to fairly represent will be judged once there is a complete contract. While we believe the Ninth ignored the mountain of evidence which made our case ripe already, we must point out that the Ninth did not relieve USAPA of its duty to fairly represent the West pilots and that a jury found that DOH would fail to meet that standard.
(2) Judge Silver appears to be concerned about adhering to the intent of the Ninth’s ruling in Addington. She carefully crafted her recent ruling to address concerns expressed by the Ninth's dicta in Addington. Application of the non-intervention principle from Addington to the company’s declaratory action would have the effect of limiting what Judge Silver will declare (rule) with regards to future events. In other words, unless something is a known fact today and cannot change during the Section 6 process, then we are inclined to think that Judge Silver will not rule on something that is contingent or speculative. Doing so would be altering the dynamics of negotiations between the company and USAPA. That is something that the Ninth was unwilling to do between USAPA and the West pilots and we believe the same non-interference policy will be applied in the declaratory action. What that means is this: we feel that the district court will not reach a clear ruling on the company’s Claim II, which asks whether a non-Nicolau list violates the Railway Labor Act. Nobody knows what a non-Nicolau list will look like until we actually see it in the form of a ratified contract. Without a clear resolution for Claim II, USAPA is stuck because the company has already made it clear in both oral and written arguments to the court that the company is not inclined to negotiate seniority; the company sees its role as simply the recipient of a seniority list only. That seniority list must be a legal seniority list (i.e. one that is not the product of a union breaching its DFR) because the company’s liability under a Hybrid DFR action turns on the union’s execution of its duty to fairly represent in concert with the company. The Ninth Circuit ruled that the district court is not to examine USAPA’s DFR with regards to seniority until there is a completed contract, so the company understandably wants to know now whether USAPA’s non-Nicolau list will be a breach of the union’s DFR.
(3) We expect that relevant facts from Addington will be imported into the company’s declaratory action, against USAPA’s vehement objections. The Nicolau Award is a known fact not subject to change. The rights and obligations embodied within the Transition Agreement at the time the T/A was signed are clear and unambiguous. Regardless of how those two documents get into the declaratory action, both are relevant and instructive and both will be admitted into the company’s declaratory action. Both are known facts not subject to change during the Section 6 process.
(4) We have no way of knowing how fast Judge Silver will process the company’s declaratory action, but we believe that one year should be enough to get through the District Court, and another year to get through the Ninth Circuit is realistic. We cannot, however, forget that almost one year has already passed since the lawsuit was filed, so the total time required to decide this lawsuit could stretch well beyond three years.
That is all for this evening. Thank you for you support and trust. Together, we will see this seniority dispute through to the end.
Sincerely,
Leonidas LLC
www.cactuspilot.com
