BOSTON DOMICILE UPDATE
May 20, 2009
CONFERENCE CALL
The BPR participated in a conference call on the 18th for 3 hours. The main topic discussed was a legal update from our attorneys, Lee Seham and Jim Brengle. Attorney Seham spoke at great length as to the background of the trial, the reasons for the outcome and our options going forward. We have all read the instructions to the jury. We all see how the scope of what they were allowed to “see” and consider was tightly controlled by the judge.
Our attorneys have a vast amount of experience and all stated they have never seen such a hostile venue as this. We believe the outcome was never in doubt from the first day. Suffice it to say USAPA was excluded right out of the building.
But (as the Dylan tune goes) Things Have Changed.
There will be a guaranteed appeal (sorry to the web board knights and their 5% rule) to the 9th Circuit. On the 18th the BPR voted 11-3 on a resolution to continue our quest to ensure the rights of all US Airways pilots. The 3-judge panel will look at
all the evidence, rulings, exclusions, etc., etc.
They will be looking at things the jury never got a chance to see. They will be looking at the judge’s extraordinary behavior during the trial. And they will be looking at the one thing that we believe was ignored: the law!
The Plaintiffs did an excellent job of turning a DFR lawsuit into a commercial contract lawsuit. They did an excellent job of confusing a judge with limited experience in both the Railway Labor Act and labor law in general.
The costs of litigation will be dropping substantially as the appeal process is reasonably low cost: no depositions etc.
Please check out the CLT update for further information. There will be a lot of info coming out.
The web boards are getting rather comical and should be treated as nothing but a form of entertainment.
CHARLOTTE DOMICILE MEETING NOTICE
May 20, 2009
As the dust settles from the decision rendered on May 12 in a Phoenix courtroom, we all need to put into prospective what this means to all US Airways pilots. Under the “guise” of a Duty of Fair Representation (DFR) claim, we traveled into an unfriendly courtroom in the Plaintiffs’ hometown. From all we have read, seen and heard, this case was litigated by what appears to be a hostile and biased judge. As the case played out in Federal District Court, the Judge appeared to interject constant moving targets for the USAPA attorneys right up to the final jury instructions, which we believe directed a guilty verdict.
DFR is plainly defined by the Supreme Court as needing any one of the following three definitions:
- Arbitrary (e.g., a union refuses to pursue your grievance without reason); Discriminatory (e.g., a union refuses to pursue the grievances of all of its non-white workers);
- Bad faith (e.g., a union official fails to respond to your complaint just because he/she doesn’t like you).
Generally the courts have taken a deferential approach to reviewing unions' decisions challenged as a breach of their duty of fair representation. Recognizing that the collective bargaining process typically requires compromises, which may favor some workers at the expense of others, the courts have held that a union only breaches its duty if it acts arbitrarily, in bad faith or discriminatorily. Practical considerations have also led the courts to refuse to second-guess unions' decisions: if a court or jury could substitute its judgment as to whether a particular grievance had merit, then unions could not function, since their decisions would rarely be final in any practical sense. Accordingly, the courts have refused to overturn union decisions as arbitrary so long as they were based on a reasoned decision by the union, even if the court might believe that this decision was wrong.
We encourage you to read for yourselves the transcripts of the trial to fully understand the events and the obstacles that we faced. It is our opinion that the Court directed the jury to the third leg of the stool, “bad faith,” but refused to define the terms under labor law. This left a vague contract law interpretation and definition that we believe directed the jury to the guilty verdict. We use the word “guise” of a DFR case, as it is our opinion that under labor law none of the three terms listed above were in fact proven. We believe that confusion between the labor law and the contract law definition of the term “bad faith” became the focus to the jury. The argument of “final and binding”, taken from the ALPA Constitution and merger procedures, was interjected into this trial by the plaintiffs, and the final argument of “a deal is a deal” was the ultimate focus of this court. We were not allowed to address nor defend these issues due to the orders by the judge that in our opinion ultimately led the jury to the guilty verdict.
What Next?
The question now becomes where we go from here; what path do we take? The appeal process will take us to San Francisco, where there will be a thorough review of the case procedures, rulings and labor law as it was applied in the Arizona Court.
This Appeal is automatic!!! There is no 5% rule on whether this case will be heard at the Appellate Level; it is 100% guaranteed by the law. It is our opinion that previous DFR and labor cases provide grounds to overturn the lower court. This opinion is shared by our legal team, and they assure us that in Appeals Court cases, the law will be the standard, and the law will prevail. Previous case histories and court rulings weigh heavily in our favor regarding past practices and decisions of the Supreme, as well as the Federal Appeals, Court system. The question that we need to ask is how do we escape the tentacles of ALPA merger policy in our efforts to correct a flawed arbitrator’s decision? The “final and binding” argument that prevailed in the lower court was, in our opinion, removed from the context of contract law and improperly interjected into Railway Labor Law. The Supreme Court rulings support our case and our rights as a collective bargaining agent to negotiate in good faith for all our pilots for the greater good of the group. Those rights are guaranteed under the law, and our objective of fair and reasonableness have never been compromised by your union leaders or BPR.
We all need to ask ourselves, after reviewing the integrated positions of our pilots on the Nicolau list, how much is it worth to this pilot group to allow the insertion of pilots that were born in the 1980s amongst our never-been-furloughed 1988-hired pilots who were born in the 1950s? As pilots for US Airways, we have
all suffered through the perils of this industry and lived through the raised and lowered expectations of our airline. There is a group of our Charlotte-based pilots, now averaging age 55, that will forever be banished from becoming a Captain at US Airways while a 26-year-old hired in 2004 moves in to that seat. That, in short, is the Nicolau.
The righteous cause and path we are on has no price tag in our opinion. There is no way that your Charlotte Reps will compromise your seniority, not at any price nor dollar value. As long as we are in office, we will pursue every legal process available to protect your career, all the way to the United States Supreme Court, if necessary.
We will never forget that “Seniority Matters,” and the calls for compromising a Nicolau solution will not be an option as long as we are your representatives.
To clearly state our position, pursuing a remedy that compromises your seniority is not an option, not for any price. Simply put, if this group chooses an alternate path other than a fair integration of seniority for a few bucks in their pockets, you will have to elect new representatives to do this. In our minds, this self-serving thinking equates to nothing less than selling out our 6 to 25-year experienced pilots. These pilots have been our stick buddies for our entire career; to sell them out to the bottom of a seniority list for life is unconscionable. You only have to look as far as Minneapolis and Detroit to see the ramifications of selling out your seniority for a paycheck, as the Northwest Pilots’ current plight is being recognized with announced cutbacks and fleet reductions. This battle is not about the money; this battle is about what is fair and equitable and is truly a righteous cause. We must focus on our goals, and they are achievable. Labor and case law are on our side! Nobody said this was going to be easy, and yes, we all knew there would be setbacks along the way. Fortitude and resolve are required in any successful campaign, and we are on this train to the end of the process. These challenges are not for the faint of heart, and our committed goals as a union remain unraveled as we progress through the process of retaining the returns of our sacrifices that saved this company. Not one of us should ever consider trading those sacrifices at the expense of others for any dollar amount.
“Our Seniority is not for sale.”
I guess everybody got it wrong, USAPA is always the victim. Short on facts but entertaining anyway. Paranoid of the web boards are we?
How about naming West pilots born in the 1980's. Can't seem to find any.
I'm still waiting for my Phoenix update. 
