As we reported last night, attorneys for the West Class filed a motion yesterday afternoon before Judge Silver recommending two additions be made to the Court’s proposed order. The basis for this request is the long and consistent history of USAPA to misconstrue legal principles. Mind you, we are not talking about vigorous advocacy before a court, we are talking about gross mischaracterization of law and facts which are routinely argued by USAPA.
Today, USAPA sent a communication which notified the membership that USAPA is filing a response to the West Class attorneys’ Motion to Add Language. In this communication, USAPA quotes directly from Judge Silver’s proposed order. Aside from the impropriety of directly quoting from the proposal, we will examine the quoted finding of law and then offer the complete legal analysis which the communication fails to provide.
USAPA counsel quotes Judge Silver stating that USAPA is free to negotiate. Not coincidentally, that is exactly what the Ninth Circuit said in the Addington opinion. Again, just as we discussed in last night’s update, Judge Silver made it very clear during Tuesday’s oral arguments that although she disagreed with the Ninth’s ruling in Addington, she is bound by it unless she ultimately decides that the Addington ruling does not apply to the Company’s case. In legal-speak, the issue is whether the ripeness in Addington is distinguishable from the Company’s Declaratory Action. That is the crux of what Mr. Siegel argued for the Company, and also what Mr. Harper argued on behalf of the West pilots.
If Judge Silver ultimately decides that Addington applies to the Company’s Declaratory Action, then the legal effect will be the same for the Company as it is for the West pilots: there can be no ripe claim until there is a ratified contract. It’s there in which the danger lies for the Company because they are required to negotiate with USAPA per the RLA, and it’s precisely those negotiations which build the “aiding and abetting” claim that the West will inevitably make against the Company if they agree to a non-Nicolau. This is the reality of our situation: (i) the Company knows they have to negotiate; (ii) they know USAPA will insist on a non-Nicolau; (iii) they know that a previous federal judge and jury already found USAPA’s non-Nicolau to constitute a DFR; (iv) without a declaration from Judge Silver on any of the claims in their Declaratory Action, they will be walking through a proverbial minefield towards an outcome that will surely saddle them with liability to the West pilots for agreeing to a non-Nicolau seniority integration.
Today’s communication by USAPA appears to intentionally omit the all-important and ever-present restriction to bargaining freedom; namely, the duty to fairly represent. To date, no judge has identified any purpose offered by USAPA as legitimate. In essence, counsel is letting USAPA walk off a cliff in the mistaken belief that pilots can fly without airplanes if they hire lawyers who say they can.
USAPA’s non-Nicolau seniority scheme has already been found to be in breach of their DFR by a Federal judge and jury. This is precisely what is controlling the situation between USAPA, the West and the Company. All US Airways pilots have an absolute right to be properly informed by their bargaining agent. We are entitled to a competent analysis of the legal issues, which means we are entitled to a complete analysis of the law as applied to our situation. Quoting only one sentence and then neglecting to explain the legal meaning is not a complete analysis. This has been a problem with USAPA since the day it was birthed. It is not a fully informed decision by the union members which USAPA seeks. Rather, for USAPA it is all about mischaracterization and obfuscation to bend and shape collective thought to the benefit of a few; a truly Machiavellian approach.
USAPA’s founders and follow-on leadership have never sought an honest, neutral risk assessment of their quest for a non-Nicolau seniority list. If they had done a true, neutral evaluation and presented it to all parties involved, maybe we would be far removed from this go-for-broke, win-at-all-cost adventure. Instead, USAPA has relied repeatedly on advice tailored to emotional desire versus an effective, beneficial outcome for all, even when staring down numerous Federal Court opinions telling them they are standing on quicksand.
Tuesday was not a win for USAPA. What we learned, again, was that USAPA is perhaps free to work on a different seniority solution during negotiations, but it is not free to ignore the legal consequences of repudiating the Nicolau Award, and neither is US Airways. What more do they need know?
