Victory
The verdict is in and President Cleary has declared total victory over the west
pilots.
Unfortunately, Mr. Cleary has neglected to pass along the real story. We have won
nothing more than the right to beg the company to move off the Nicolau Award.
And when we do, the 9th has stated that this action will render a
DFR unquestionably ripe. Two years and
millions in legal fees and we have beaten back one lawsuit on a technicality. Even
the judges who agreed on the ripeness issue with USAPA still put the union on
notice. TheEye has read the decision and heard the competing interpretations
from the west pundits, east pundits, and outside analysts as to what it really
means. TheEye’s first impression is that it appears to be nothing more than a
"reset" to Act One, Scene One of this whole drama.
While the panel ruled 2-1 to dismiss this case, the dismissal was only based on
the "ripeness doctrine" which indicates to us that the judges believed
what USAPA may have done thus far could be a DFR, or might not be a DFR, they
just couldn’t rule on that yet. Due to a lack of similar case precedent there
was bound to be some wrinkles, and many observers outside our ranks apparently
expected this 'it's not quite ripe yet to decide' outcome. However, in reading
the decision, it is clear that even the judges who decided to dismiss were not
casually throwing the DFR issues to the wind and what they wrote is a long way
from green lighting Mr. Cleary to do whatever he pleases. Of course, the west
will likely appeal to the whole of the 9th circuit and possibly the Supreme
Court, just as the east would have likely done as well or will do if the tables
were turned or get turned.
Of particular concern to us is the notion that Mr. Cleary thinks he has completely
won. Within hours of the decision he issued a statement claiming victory along
with a call for peace. We believe this is particularly troubling considering
the years of legal struggles ahead combined with a likely merger with one of
the new big three. Not only have we won absolutely nothing, but the 9th
even insinuated that the negotiation of seniority away from the Nicolau Award
by the Association is a sure fire DFR. Mr. Cleary’s unfitness to lead this
union has never been more evident.
Mr. Cleary and Mr. Mowrey have also neglected to relate to us the true reaction
of US Airways management when the passed their quasi DOH list almost two years
ago. We have all heard the story that management was quite direct with USAPA
and refused the new list. It’s entirely possible that USAPA's next legal battle
will be with US Airways management to try and force them to accept the quasi
DOH list. It is guaranteed that the west pilots will hit USAPA with a follow-up
lawsuit should Mr. Cleary be successful in goading/suing the company to accept
their dream list with punitive conditions and restrictions for the west pilots.
.
Some things are certain; we will pay more legal fees, there will be more
expenses, and we will all experience further delay. During this time our
company will return to profitability with record load factors. We will remain
eons from a contract and our furloughed pilot brothers and sisters will still
be on the street.
In the meantime, things HAVE been developing on the contract front....for other
carriers anyway.
UAL and Continental seem well on their way to a Delta + joint contract as a
premium for their assent to the merger. Wall Street analysts and Mr. Kirby
himself have recently stated that a merger is key to unlocking a ratifiable
agreement and bringing finality to the seniority dispute. With this in mind, we
must ask what Mr.Cleary been doing to prepare and protect the US Airways pilots
should a merger with one of the big three come to fruition.
Has Mr. Cleary hired competent and experienced outside merger counsel?
Nope.
Has Mr. Cleary appointed competent and experienced pilots to the Merger Committee?
Pilots whom have participated in a complete seniority integration from
arbitration to implementation?
Nope.
Does Mr. Cleary have a clue as to what he will need to budget for legal bills in
light of a potential Allegheny-Mohawk arbitration with the Allied Pilots
Association ("APA") or up against the ALPA MCF?
Nope.
Or does Mr. Cleary plan to force us into another assessment with significant
impact to the family budget all while his inner circle lives high of flight pay
loss, steak dinners, and Marriott points?
Most likely!
The bottom line is that even though this decision might cause east pilots to
rejoice and west pilots to cringe, those emotions should be short-lived. Both
sides need to take a longer view of our predicament and think carefully about
what we are likely to face as our industry undergoes transformation from six
major legacy carriers to three. As it may take years for merger scenarios to
sort themselves out, we need to acknowledge that the stalemate of separate
operations will be the norm for the foreseeable future. While we all hold out
hope for our snapback, it may not happen, and most of us know in the back of
our minds that our next realistic opportunity to cash in on a new contract will
likely be as part of a merger. We should be figuring out ways to come together
and how to peaceably prepare for the next transaction. Unfortunately, Mr.
Cleary and his cadre of union busters are too busy trying to stay in power. And
of course there’s Mr. Seham with virtually no pilot seniority arbitration
experience gearing up for his next cash cow with his unrelenting determination
to milk us for every dime we have even if the ultimate outcome is less than
perfect for any pilot - east or west. The last thing ANY pilot should want is a
brash Lee Seham angering a seniority arbitrator during Allegheny-Mohawk talks
with the APA. Of course we will be the ones paying for this show of arrogance.
We’re sure he’ll show his appreciation by naming his next yacht after our so
called union.
We leave you with something to ponder should a merger with American become
reality:
What will USAPA do if the Allied Pilots Association, in an effort to avoid
liability and backed up by both management teams, asks for both separate east
and west seniority lists and demands a three-way arbitration as no single
seniority list will likely be put into place at LCC prior to the next
transaction?
***Is it possible that both the Nicolau Award that the west desires and
the quasi DOH list that USAPA desires NEVER see the light of day?***
A good question indeed!
What happened to the AOL site?
Editors note: We are not sure. You would need to contact Leonidas LLC. We did hear that there was a possible tampering with their server which is a federal crime.
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The ALPO lovers will just never give up. The Westies better get used to a fair seniority solution. DOH is the only way. Parker will accept our list and we will all move on. You guys lost we won. Get used to it. As a 99 hire, I'm never going to be junior to a 2005 probationary newbie from Mesa.
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Then maybe you should get another job. The pilot industry is not here to please you. It is a job. If you were a corporate guy I am sure you wouldn't be speaking to your boss that way. You think you are owed something? You are lucky to have a job and a way to provide for your family. Keep tying this up and you Easties are going to ruin it for everyone and make a these lawyers fatter and happier than ever. A list was put out and it should be honored. Just because you don't like it doesn't make it wrong. It is relative and that is what matters, not your ego. REALLY???? Why can't you see what is happening?
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That list will never be ratified by the East pilot group - if the last 3 years haven't convinced you of this, then it's you who can't see what is happening.
We collectively threw away a chance at Wye River.
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What fair solution??? Didn't an arbitrator decide that 3 years ago?? Since when did usapa become the holder of fairness doctrine? You really think your seniority is nothing more than a crew meal? Your Comm chairman sure thinks so. Explain to your significant other why you want to work for significantly lower wages indefinitely. Isn't more now better???
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ALPO? What is this 3rd grade school yard? The company has already said under oath that they have a list it is the Nic. Read some transcripts you might learn something.
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For those of you who do not take the time to read the entire court document, nobody has won anything. Is your DOH list in place yet? Here are some words to ponder for the next court battle from Judge Bybee's dissention:
“I agree with the majority that this case would be ripe if USAPA and U.S. Air had entered into a CBA. That is not the question that this case presents. We are asked whether our Article III jurisdiction extends to a DFR claim based on a union “constitutionally committed,” to avoiding a binding arbitration award and adopting a “date of hire” seniority principle that plainly favors one side of a merger. When the question is posed in this way, I believe the ripeness of the West Pilots’ claims becomes clear...The issues raised by the West Pilots’ DFR claim are straightforward, and the uncontested facts of this case make clear that the issues involved are fit for decision on this record.
The West Pilots’ DFR theory does not depend on any contingent future events such as the memorialization of a finalized CBA or seniority integration agreement. The district court explained why the issues were fit for decision and the parties will suffer hardship if we decline to consider the issues. The issues fit for decision are these: Whether USAPA adopted and presented its seniority proposal without any legitimate union objective, solely to benefit East Pilots at the expense of West Pilots, and if so whether the West Pilots are entitled to damages and an injunction therefor . . . . USAPA concedes it will never bargain for implementation of the Nicolau Award. It is constitutionally hostile to doing so. The Airline has accepted the Nicolau Award, expressing no opposition to it, and the union has failed to show any legitimate reason (or plausible future reason) for abandoning it. Liability flows from the process and aims of USAPA’s seniority position. The outcome of negotiations is irrelevant. Without an injunction, USAPA’s seniority position inevitably impairs the collective bargaining process. For this same reason, denying judicial review would work a substantial hardship upon the parties, include-The majority argues that this case will not be ripe until “the airline responds to [USAPA’s seniority] proposal, the parties complete negotiations, and the membership ratifies the CBA,” but I respectfully disagree. Certainly this case might be “riper” were plaintiffs to wait for these future events, but when USAPA took the reins as the West Pilots’ union and refused to pursue the Nicolau Award, USAPA’s promise moved from abstract disagreement to adjudicable legal controversy. The future events cited by the majority are not likely to occur anytime soon, and plaintiffs will be harmed all the while..."
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"Get used to it. "
Perhaps, you should read the entire brief, as well as the above blog again.
Nothing has changed. Well, nothing except the pay raises coming at the other carriers.
I do not believe the AA merger will ever come to pass. It's one area where APA and AA management would work together. But for all of the critique I might have of the APA guys and their attitude towards others, even they don't lack the integrity of USAPA.
I'll be long retired by the time this settles. My fondest memories of the career will not include the acts I've witnessed by fellow (?) airmen over the last 5 years.
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Nowhere does USAPA spell out the difference between its right to "negotiate" a proposal, as opposed to what happens if that same proposal is actually "ratified."
In the case of ratification of an altered Nic. Award, USAPA would place itself at extreme risk – in the words of the Ninth “…under pain of an unquestionably ripe DFR suit, once a contract is ratified" (Tashima and Graber). USAPA implies there is no difference between the words, "negotiate" and "ratify." USAPA is deliberately misleading the membership, again. Let's see how the rest of the world (the court) will interpret the words negotiate and ratify should USAPA be foolish enough to trigger another DFR.
East pilots: Ask your BPR reps. to explain the significance of the words negotiate and ratify. Make note of what they tell you.
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"As a 99 hire, I'm never going to be junior to a 2005 probationary newbie from Mesa".
Let's see...in 2007, when the Nic came out our 2005 hire was flying the line, had 2 years of service and a job while you were on furlough selling cars at Honest Eddie after getting furloughed in 2001 with 18 months of service.
Gee, wonder why you want DOH at the expense of the West pilots
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I truly wish that every pilot (and USAPA leadership) would take the time to thoroughly read the legal documents abd findings prior to commenting - most of you sound like idiots! This case is not over - as a matter of fact, if you read Judge Wake's findings and then compare them to the 9th majority's comments - there are striking misstatements on the part of the majority - something Wake must deal with. The majority's remarks are sloppy, ill thought out and I'm sure will be subject to serious review - either by the full circuit court or the Supreme Court. The issue of "fitness" and "harm" with regards to ripeness and "final and binding" regarding the Nic award have serious enough ramifications for the entire labor and legal communities. As a wife of a pilot, I wish you all would ask your families how they would vote on staying where you are for the next 15 years - no increase in compensation/benefits, etc., or a nice jump in compensation and better standard of living (the hours can't get much worse)...And by the way, have you told them how much income you've left on the table since the Kirby offer? I know what my family says - enough of this garbage - get a contract, even with the Nic award, and move on. Those of you who keep fighting this Nic award are only costing every fellow pilot hundreds of thousands of dollars for your selfish egos (and Cleary and company aren't financially impacted at all as they keep voting themselves higher income and nice, cushy perks at your expense, not to mention the legal fees they keep spending our money on) - it's not worth it! The harm you are doing to your fellow pilots is significantly greater than the harm inflicted by the Nic award.
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Why do America West pilots and their families want East pilots and their families to accept the obviously, West-favored Nic award so you can have more money? The one thing I do not want my husband to sacrifice is his pride. Many of the pilots on the West side seem so eager for the East pilots to make sacrifices, while they salivate like dogs to gain seniority they do not deserve. The West pilots constantly brag about what they brought to the table and how little the East side brought. This is ridiculous!! The pilots from either side brought nothing but their ability to fly. Neither side had anything to do with the financial situations of either company. So if all you really brought to the table was your flying experience, then the guys with the most experience should be the most senior.
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Wow! Couldn't have said it better! Throwing money away for a bunch of egos..The labor dispute is costing not only money but possible mergers. US Airways will be left standing alone next to all the airlines that have merged and who knows if they will survive. Grow up and be responsible, you are hurting each other and all the families. Just vote on a contract and move on!!!
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I found it funny when Bradford and Cleary stated that they did not have to honor the Nicolou Award because it was completed under ALPA reign and they are now USAPA. If you take sound reasoning you can apply this mindset to other issues as well. The company could respond to all your desires and arbitrations...ie. (30 million lump sum payout, desired snapback provision,and change of control provision, etc. etc. ) with your same argument. These agreements were made with ALPA. Since you are now USAPA we are no longer bound.
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