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US Airways pilots' seniority fight in court
US Airways merger led to 2 years of infighting
6 commentsby Dawn Gilbertson - Apr. 26, 2009 12:00 AM
The Arizona Republic
When a group of America West pilots decided to take on their counterparts at merger partner [COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif][COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif]US [/FONT][/FONT][FONT=Helvetica, Arial, sans-serif][COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif]Airways[/FONT][/color][/FONT][/color][/color] over seniority in 2007, they named themselves the Army of Leonidas.
The name choice underscored the battle they saw ahead and the sanctity of seniority in the cockpit: Leonidas was a Greek war hero who died helping his underdog troops hold off the advancing Persians in ancient Greece.
This week, after two years of head-spinning union politics, legal wrangling and almost-daily rhetoric, the feuding pilots of the "new" US Airways will face off on the ultimate battlefield: federal court. OAS_AD('ArticleFlex_1')
The airline's 5,000 pilots hope it decides the sticky issue of seniority - key to a pilot's schedule, promotions, pay and job security - once and for all.
US Airways CEO Doug Parker, who has kept a public poker face throughout the saga, is looking for closure.
A merged seniority list is key to reaching a new joint contract with the pilots, which would allow the airline to finally combine its flight operations four years after the America West-US Airways merger.
"It's been a highly emotional issue for our former US Airways and our former America West pilots that they have not been able to resolve among themselves," Parker said. "We need to get it resolved."
The jury trial before Judge Neil Wake in U.S. District Court in Phoenix will pit six former America West pilots, the men behind Leonidas, against their new union, the US Airline Pilots Association (USAPA). The lawsuit was filed last fall.
Wake has narrowed a case that once had multiple claims and included the airline as a co-defendant to a central issue: whether the union is fairly representing all the pilots under the US Airways umbrella. The legal term is duty of fair representation.
The America West pilots say the union has breached that duty.
Exhibit No. 1, they say: The union was formed by pilots of the old US Airways solely to overturn a seniority list issued in spring 2007 by a federal arbitrator after lengthy presentations from both sides.
The US Airways pilots wanted the merged seniority list - the new pilot pecking order - to be based on date of hire. That would have strongly favored US Airways pilots, given that airline's substantially older age compared with America West, which began flying in 1983. They suffered pay cuts, lost pensions and more in two bankruptcies and say they don't want to give up anything else.
Arbitrator George Nicolau instead blended the lists, putting senior US Airways pilots at the top of the list, US Airways pilots on furlough at the time of the merger at the bottom, and a proportionate blend of US Airways and America West pilots in the middle based on their seniority, captain or co-captain status and type of aircraft. The list was accepted by the Air Line Pilots Association, the union for both airlines at the time, and submitted to the company.
The pilots from the old US Airways, who outnumber their counterparts by a ratio of nearly 2-1, succeeded in ousting ALPA and were voted in a year ago.
They have since continued to push for date-of-hire seniority, with a few extra protections for America West pilots, and have said any contract they agree to will have that as its centerpiece.
The America West pilots have called it the organized theft of their seniority and say date-of-hire would put 80 percent of the America West pilot group below the most junior US Airways pilot on furlough when the merger was announced. US Airways was in a cost-cutting mode in bankruptcy when America West announced plans to acquire it in May 2005.
They say the delay in adopting the merged list has already had consequences, with America West pilots being furloughed ahead of their US Airways counterparts during the airline's recent flight cutbacks. Three of the six pilots who filed the lawsuit on behalf of their co-workers were furloughed. The union says the layoffs were linked to the hubs with the biggest flight cuts, and they were America West cities.
USAPA officials, who, like those on the America West side, declined to comment in advance of the trial, have maintained from the start that the arbitrator's decision was never final or binding and was just a proposal.
They have also argued that no union that has pushed for date-of-hire has ever been found guilty of not fairly representing its members.
USAPA also claims the court has no jurisdiction in what it considers union matters and that it can't compel the union to adopt the arbitrated seniority list.
And technically speaking, the union says, it can't be found in violation of breach of duty over seniority because its date-of-hire seniority policy was adopted before it was the pilots' official union.
Wake has made it more than clear that seniority systems will not be on trial next week nor will either side be able to reargue the case they put before the arbitration panel. He tossed out several exhibits USAPA proposed on that front.
"I'm not here to decide to choose between competing notions of wise labor policy and different views of seniority policy," he said last fall.
Neil Bernstein, a professor emeritus of law at Washington University in St. Louis whose specialties include labor law, said it will come down to the union's actions.
"The pilots who are suing their union have to show skullduggery, show that the union did something underhanded," he said.
Both sides have been talking tough as the trial nears.
In an update last week providing rules for America West pilots interested in attending the trial, Leonidas suggested they sit in a less formal overflow room because it might be tough to suppress their reactions to USAPA's testimony in the court room.
"This is probably the endgame for a regime that has no conscience, a never-ending supply of hubris and no limits when it comes to the deception," the group said in an email last week. "They have no substantive defense to their actions so you can anticipate that the crux of their defense will be to argue mistruths."
It also chided the union for potentially trotting out Chesley Sullenberger and Jeffrey Skiles, the captain and co-captain of Flight 1549, the US Airways plane that splash-landed in the Hudson River in January and brought both international acclaim.
They are on the witness list for the defense. Both are from the old US Airways but had not been active, at least publicly, in the new union. Sullenberger fared particularly well on the arbitrated seniority list, coming in at No. 370.
The America West pilots' memo painted the move as desperate, saying the union is "making a mad dash to hide behind the Klieg lights of an event which they had nothing to do with - NOTHING."
In a recent Web posting to members, USAPA said it remains confident it will prevail, whether in [COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif][COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif]district [/FONT][/FONT][FONT=Helvetica, Arial, sans-serif][COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif]court[/FONT][/color][/FONT][/color][/color] or on appeal.
"Anything less than a victory by USAPA would severely constrain a union's ability to bargain, and we do not believe that such constraint was intended by the courts, as evidenced by previous case law," it said.
With the airline's pilots so bitterly divided for so long, few expect the matter to end when the trial does in a couple weeks. Appeals are almost certain.
"I'm not convinced that this can end in a U.S. District Court in Phoenix, Arizona," said Bill Swelbar, an industry analyst with the International Center for Air Transportation at the Massachusetts Institute of Technology.
US Airways merger led to 2 years of infighting
6 commentsby Dawn Gilbertson - Apr. 26, 2009 12:00 AM
The Arizona Republic
When a group of America West pilots decided to take on their counterparts at merger partner [COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif][COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif]US [/FONT][/FONT][FONT=Helvetica, Arial, sans-serif][COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif]Airways[/FONT][/color][/FONT][/color][/color] over seniority in 2007, they named themselves the Army of Leonidas.
The name choice underscored the battle they saw ahead and the sanctity of seniority in the cockpit: Leonidas was a Greek war hero who died helping his underdog troops hold off the advancing Persians in ancient Greece.
This week, after two years of head-spinning union politics, legal wrangling and almost-daily rhetoric, the feuding pilots of the "new" US Airways will face off on the ultimate battlefield: federal court. OAS_AD('ArticleFlex_1')
The airline's 5,000 pilots hope it decides the sticky issue of seniority - key to a pilot's schedule, promotions, pay and job security - once and for all.
US Airways CEO Doug Parker, who has kept a public poker face throughout the saga, is looking for closure.
A merged seniority list is key to reaching a new joint contract with the pilots, which would allow the airline to finally combine its flight operations four years after the America West-US Airways merger.
"It's been a highly emotional issue for our former US Airways and our former America West pilots that they have not been able to resolve among themselves," Parker said. "We need to get it resolved."
The jury trial before Judge Neil Wake in U.S. District Court in Phoenix will pit six former America West pilots, the men behind Leonidas, against their new union, the US Airline Pilots Association (USAPA). The lawsuit was filed last fall.
Wake has narrowed a case that once had multiple claims and included the airline as a co-defendant to a central issue: whether the union is fairly representing all the pilots under the US Airways umbrella. The legal term is duty of fair representation.
The America West pilots say the union has breached that duty.
Exhibit No. 1, they say: The union was formed by pilots of the old US Airways solely to overturn a seniority list issued in spring 2007 by a federal arbitrator after lengthy presentations from both sides.
The US Airways pilots wanted the merged seniority list - the new pilot pecking order - to be based on date of hire. That would have strongly favored US Airways pilots, given that airline's substantially older age compared with America West, which began flying in 1983. They suffered pay cuts, lost pensions and more in two bankruptcies and say they don't want to give up anything else.
Arbitrator George Nicolau instead blended the lists, putting senior US Airways pilots at the top of the list, US Airways pilots on furlough at the time of the merger at the bottom, and a proportionate blend of US Airways and America West pilots in the middle based on their seniority, captain or co-captain status and type of aircraft. The list was accepted by the Air Line Pilots Association, the union for both airlines at the time, and submitted to the company.
The pilots from the old US Airways, who outnumber their counterparts by a ratio of nearly 2-1, succeeded in ousting ALPA and were voted in a year ago.
They have since continued to push for date-of-hire seniority, with a few extra protections for America West pilots, and have said any contract they agree to will have that as its centerpiece.
The America West pilots have called it the organized theft of their seniority and say date-of-hire would put 80 percent of the America West pilot group below the most junior US Airways pilot on furlough when the merger was announced. US Airways was in a cost-cutting mode in bankruptcy when America West announced plans to acquire it in May 2005.
They say the delay in adopting the merged list has already had consequences, with America West pilots being furloughed ahead of their US Airways counterparts during the airline's recent flight cutbacks. Three of the six pilots who filed the lawsuit on behalf of their co-workers were furloughed. The union says the layoffs were linked to the hubs with the biggest flight cuts, and they were America West cities.
USAPA officials, who, like those on the America West side, declined to comment in advance of the trial, have maintained from the start that the arbitrator's decision was never final or binding and was just a proposal.
They have also argued that no union that has pushed for date-of-hire has ever been found guilty of not fairly representing its members.
USAPA also claims the court has no jurisdiction in what it considers union matters and that it can't compel the union to adopt the arbitrated seniority list.
And technically speaking, the union says, it can't be found in violation of breach of duty over seniority because its date-of-hire seniority policy was adopted before it was the pilots' official union.
Wake has made it more than clear that seniority systems will not be on trial next week nor will either side be able to reargue the case they put before the arbitration panel. He tossed out several exhibits USAPA proposed on that front.
"I'm not here to decide to choose between competing notions of wise labor policy and different views of seniority policy," he said last fall.
Neil Bernstein, a professor emeritus of law at Washington University in St. Louis whose specialties include labor law, said it will come down to the union's actions.
"The pilots who are suing their union have to show skullduggery, show that the union did something underhanded," he said.
Both sides have been talking tough as the trial nears.
In an update last week providing rules for America West pilots interested in attending the trial, Leonidas suggested they sit in a less formal overflow room because it might be tough to suppress their reactions to USAPA's testimony in the court room.
"This is probably the endgame for a regime that has no conscience, a never-ending supply of hubris and no limits when it comes to the deception," the group said in an email last week. "They have no substantive defense to their actions so you can anticipate that the crux of their defense will be to argue mistruths."
It also chided the union for potentially trotting out Chesley Sullenberger and Jeffrey Skiles, the captain and co-captain of Flight 1549, the US Airways plane that splash-landed in the Hudson River in January and brought both international acclaim.
They are on the witness list for the defense. Both are from the old US Airways but had not been active, at least publicly, in the new union. Sullenberger fared particularly well on the arbitrated seniority list, coming in at No. 370.
The America West pilots' memo painted the move as desperate, saying the union is "making a mad dash to hide behind the Klieg lights of an event which they had nothing to do with - NOTHING."
In a recent Web posting to members, USAPA said it remains confident it will prevail, whether in [COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif][COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif]district [/FONT][/FONT][FONT=Helvetica, Arial, sans-serif][COLOR=#2573c2! important][FONT=Helvetica, Arial, sans-serif]court[/FONT][/color][/FONT][/color][/color] or on appeal.
"Anything less than a victory by USAPA would severely constrain a union's ability to bargain, and we do not believe that such constraint was intended by the courts, as evidenced by previous case law," it said.
With the airline's pilots so bitterly divided for so long, few expect the matter to end when the trial does in a couple weeks. Appeals are almost certain.
"I'm not convinced that this can end in a U.S. District Court in Phoenix, Arizona," said Bill Swelbar, an industry analyst with the International Center for Air Transportation at the Massachusetts Institute of Technology.
