Black Swan
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Leonidas Update July 3, 2011
Since our last update there have been three filings before Judge Silver. First, West attorneys filed a motion to have the West pilots certified as a class (Docs 86 and 91). Second, USAPA responded to our motion for class certification (Doc 92). Finally, USAPA filed their response to US Airways’ Declaratory Action (Doc 88).
The reason for Class Certification of the West pilot group is identical to the reason for class certification in Addington: efficiency and certainty in the result. Rather than have numerous individual suits by West pilots, all claims will once again be bundled together. It is easy to see why all of the legal matters relating to this seniority dispute fit nicely within the framework of a class action – whether we’re talking about a union’s duty to fairly represent its constituents, or US Airways’ claim for declaratory relief. Dr. Jacob explained it this way in our Motion for Class Certification:
“Consider, for example, what would happen if two West pilots sued separately and obtained different outcomes—one outcome that US Airways is liable if it implements a Nicolau CBA and the other outcome that it is liable if it implements a Non-Nicolau CBA. With both such outcomes, US Airways cannot avoid liability. If it implements a Non-Nicolau CBA, the prevailing West pilot could hold it liable for doing so. If it refuses to do so, USAPA could hold it liable for refusing to bargain in good faith. Class certification solves this dilemma by binding all West Pilots to one outcome. In short, because there can only be one scheme of seniority integration, there can only be one outcome on the class members’ claims. To limit the class members’ claims to one outcome, there must be class action treatment pursuant to Rule 23B(1)(A).” (Doc. 91, pg 9).
The reasoning is very straight forward.
Doc. 92 is USAPA’s opposition to our Motion for Class Certification. Before we go any further, we are compelled to ask rhetorically why USAPA is opposing class certification for the West. Don’t they want this seniority dispute settled already? As Dr. Jacob argues in the above excerpt, without class certification this dispute cannot be cleanly resolved. Twice so far during the company’s Declaratory Action lawsuit, USAPA has filed motions which only delay the final resolution to the company’s action; the first was their motion to dismiss the company’s complaint and now they want to waste time and resources arguing over whether the named plaintiffs adequately represent the West pilots. It sounds like a déjà vu all over again from the Addington trial. USAPA failed to stop the West from being certified as a class in Addington, and we estimate USAPA’s odds of winning in their opposition to West class certification this time is around zero.
We encourage all pilots to read both motions and to compare. On a side note, Doc. 91 is the West Pilot's “Amended” Motion for Class Certification, and Doc. 86 was the original motion. One reason for the amendment is that, at the time of the original filing, we could not get a hold of Steve Wargocki. As soon as we did get a hold of Steve, his response was a resounding “yes” to be included in another class action. The amended motion also incorporated the recent Supreme Court ruling Wal-Mart Stores v. Dukes. In Dukes, the Court rejected class certification of a large number of female employees. Wal-Mart did not have a “uniform practice” among stores in promoting employees, and therefore the individual proofs within the proposed class would differ from store to store. Hence, class certification could not generate a common answer for all of the proposed class. Dr. Jacob contrasts the Dukes’ plaintiffs with our situation:
“Dukes does not impact certification here. The West Pilots challenge what would be a uniform practice—USAPA and US Airways negotiating and implementing a Non-Nicolau CBA (in the future). Whether this would be a breach of duties owed to West Pilots is susceptible to a single answer applicable to all West Pilots. The answer and proof for the class representatives would be the same as that for the class as a whole. The West Pilot Class, therefore, readily satisfies commonality.” Doc. 91, page 5.
The last thing we’ll say in this update regarding class certification of the West pilots is to call Seham out on his argument found on page 6, line 10 of Doc. 92:
“Furthermore, reliance on the former Addington trial litigation, including its class certification, is woefully misplaced.”
First off, Seham is not identifying where in Docs. 86 or 91 that Addington v. USAPA is being relied upon. The only mentioning of Addington we see is where the West attorneys are establishing their qualifications to serve as class counsel. Addington is but one of many class actions that West attorneys have handled, so naturally it is relevant for the purpose of establishing the adequacy of class counsel and it is cited only for that reason.
Second, Seham is either confused about the “typicality” prong of class certifications, or he is just outright trying to obfuscate the issue before the court. He argues that by virtue of the positions of the six West class representatives on the West seniority list, that these six do not adequately represent all West pilots sufficiently to establish that the representatives’ claims are typical for the entire class. He is essentially arguing that a prospective DFR claim arising from the uniform application of DOH is different for a line holding AWA F/O which is different from a line-holding AWA Capt which is different from a reserve captain who is different from a reserve F/O. His logic appears to be that since the six representatives do not cover the entire seniority list, class certification must fail. That is not the legal standard. The legal standard for class certification focuses on the class representatives having individual claims that mirror the claims throughout the class. In this seniority dispute every West pilot loses under DOH. The claims will be the same for all the members of the class. Hence, class certification is appropriate and necessary to adjudicate the company’s declaratory action.
Most perplexing is Seham’s statement on page 7 of Doc. 92:
“In truth, both pilot groups, combined or separate, are a complex mosaic of mixed interests and shifting factions, all with corresponding potential for political compromise, expedient or otherwise, just as any typical bargaining unit is.”
“Complex mosaic of mixed interests and shifting factions . . .”? Is he talking about The Real Housewives of New Jersey? He surely can’t be talking about East and West pilots as there is nothing complex about the effect of DOH: every West pilot loses with DOH and every East pilot gains with DOH. Hence, from top to bottom of the West seniority list, every pilot’s claim is legally the same as every other West pilot. USAPA gets it, but just flat out refuses to acknowledge this reality as it would doom their case outright. What we really take from USAPA’s response is that they are clueless when it comes to recognizing unintended consequences of their DOH pursuit. By now one would have thought that USAPA would have figured out that using a majority status to elect a new bargaining agent is not a license to run roughshod over the minority. It is mainly because of Mike and Randy’s discriminatory leadership that Leonidas has been able to meet the massive funding requirements to fuel the West legal effort - the Addington trial, the appeal, the defense against frivolous charges of identity theft – none of this would have been possible if it weren’t for the blind greed to take everything from the West; from the most senior captain all the way down to Dave O’Dell.
If USAPA is so sure of its position and so supremely confident of victory, then invariably it must be asked why USAPA repeatedly files motions which delay the efficient adjudication of this seniority dispute. After all, USAPA was founded on confident pronouncements that the Nicolau could be ignored with impunity, that the company would eagerly exchange DOH for a cost-neutral (read: concessionary) contract, and that USAPA would not need a “Plan B.” If all of that is true, then why is USAPA doing its utmost to sabotage the timely resolution of this seniority dispute? To listen to the USAPA founders, DOH was a done deal. After the Ninth Circuit found the Addington litigation to be not ripe, USAPA claimed total victory and promised (again) that a DOH contract would be realized in the near future. So, USAPA, why are you running? Admittedly, we know the answer . . . as do a growing number of pilots on the East: “it’s not what they say, it’s what they do.”
The final topic in today’s update is USAPA’s counterclaim against the company, embedded within their response to the company complaint (Doc 88). What USAPA is essentially doing is asking Judge Silver to grant the company’s third claim by shifting all future liability for negotiating a non-Nicolau list to USAPA. The company will have to respond to the counterclaim and we will link their response on Cactuspilot.com as soon as we see it. Although the West is not named, we of course will have to be involved in the counterclaim and therefore we will have an opportunity to intervene under the federal rules of procedure. It would have made a lot more sense for Seham to go ahead and name us as a party, but after three years of litigating against our own union, we are not surprised. We in the West are used to Cleary and Seham wishing as hard as they can that the West did not exist. Unfortunately for them, the West just will not go away. We keep making our presence known, and it is YOU bronze, silver, gold and titanium badge backers who are responsible.
Please enjoy this special holiday weekend as Americans everywhere celebrate our repudiation of tyranny. Enjoy the time with your family and friends (or coworkers if you are flying) and the special connection we West pilots have developed as a result of the last four years. While it is natural to lament not having a situation like DAL, ALK or SWA, it must be recognized that we do not have it all that bad either. We have experienced the worst, we have stuck together, and we are stronger because of it. The wheels of justice, albeit slow and sometimes frustrating, in the end will grind our way. All we have to do is to keep doing what we have been doing and we will ultimately realize the Nicolau as part of a long overdue contract.
Sincerely,
Leonidas LLC
Amazing! Jacobs and Leonidas have still not figured out what the 9th said. This is classic. They are continuing to re hash Addington. The Wake debacle, the Jacobs destruction, the Leonidas miscalculation. This is the BEST thing the east pilots could ever have coming. A massive GIFT. Thank you, thank you! Full speed ahead Leonidas. After all, the water is only an inch deep where you sail............
