Mr. Cleary’s message today was so misguided, we’ve taken the unusual step of reprinting his entire message with our comments in red (the color of good union pilots).  

Fellow pilots,  (Fellow east pilots,)

As I’m sure you are aware, the Company recently filed a lawsuit requesting a Declaratory Judgment from the Arizona District Court; the purported reasoning behind this filing was to simply bring the seniority issue to a head, thereby allowing contract negotiations to move forward, and to indemnify the Company from any liability stemming from its acceptance of any particular bargaining proposal.

Remove the word ‘purported’ and Mr. Cleary has it exactly right. 

 All sounds reasonable enough, right? Well, not exactly. In USAPA’s judgment, the Company’s action is not reasonable. In fact it is hypocritical and frivolous, and represents a direct attack on all US Airways pilots, West and East, and our attempt to gain an industry-standard contract.

There is absolutely nothing hypocritical in the Company’s filing. In fact, USAPA should welcome the filing as they have told us from day one that the Company would welcome the opportunity to negotiate away from the Nicolau Award. Since its inception, USAPA has told us the Company is free to do so. Through this lawsuit, the Company is simply asking the Court to confirm what USAPA already believes. 

The hypocrisy of the Company’s purported justification for suing is revealed by its own published statements. The frivolous nature of the lawsuit is confirmed by the Company’s own briefs previously submitted to a federal court. In essence, Management has just thrown gasoline on the dying embers of the Addington litigation.

The 9th Circuit was crystal clear in their admonishment that USAPA’s pursuit of a new seniority proposal would render an ‘unquestionably ripe’ DFR lawsuit.  

Let’s look at some of the glaring inconsistencies between what the Company now says its motivations are and compare that to what both it and the courts have already said. From there, we may be able to figure out what is really left for the Company to gain and thereby identify Management’s actual motivations.

Whether one sides with the Union or the Company, it is obvious that this lawsuit was filed to finally end the seniority dispute and merge the airline. Mr. Cleary’s assertions that there exists an ulterior motive is pure conjecture and has no basis in reality. 

What the Ninth Circuit Has Said

One of the Company’s claims is that it is simply asking for direction as to whether it is obligated to accept the former union’s seniority bargaining proposal.

Precisely! 

All parties – the judges, two courts and the Addington plaintiffs themselves – agree that the Nicolau Award was nothing more than ALPA’s bargaining proposal for seniority. 

Not exactly. USAPA was found guilty of failing to fairly represent the west pilots due to their deviation from the agreed upon Transition Agreement process to merge seniority. The TA obligated the Company to accept the submitted list as the final and binding proposal from the east and west pilots. At no time did the judges, two courts, and the Addington plaintiffs ever agree that USAPA could substitute a new seniority proposal without subjecting the Union and the Company to liability. Hence the reason the Company is now seeking a liability release.    

Let’s look at a few key elements of the Ninth Circuit’s decision in favor of USAPA to see if the Company’s action makes any sense in this context:

• “Forced to bargain for the Nicolau Award, any contract USAPA could negotiate would undoubtedly be rejected by its membership.” Given the shared legal obligation of the Company and USAPA to make “every reasonable effort” to reach a final agreement, how can that objective be accomplished by deliberately negotiating toward what all the parties acknowledge would be an unratifiable contract?

There is no way the 9th Circuit, or any court for that matter can determine what the membership will or will not approve. Our sources have confirmed that prior to USAPA’s election, there was a sizeable contingent of east pilots ready to vote on a contract inclusive of the Nic should it have included favorable economics. 

• “By deferring judicial intervention, we leave USAPA to bargain in good faith ...” In other words, the Court is stepping back and allowing USAPA to bargain without court interference or even direction, constrained only by those laws applicable to such bargaining. We welcome that opportunity.

Mr. Cleary deliberately left out the entire sentence. Specifically the part that reads ‘...under pain of an unquestionably ripe DFR suit, once a contract is ratified.’ Mr Cleary may welcome that opportunity, but the Company does not unless they can be assured that only USAPA will be liable once a contract is ratified. 

• “We note, as the district court recognized, that USAPA is at least as free to abandon the Nicolau Award as was its predecessor, ALPA.” Given that ALPA applied what the former AWA MEC Chairman characterized as “extreme pressure” on the West pilots to moderate their position from the Nicolau proposal, how can USAPA be faulted for seeking a ratifiable compromise?

ALPA’s freedom to abandon the Nic rested with the two independent MECs. A new or modified list needed approval by the sovereign MECs followed by separate pilot ratification. The election of USAPA removed the west pilots ability to find a solution with the east. Our former MEC Chairman, Captain Stephan, warned of this when he campaigned against USAPA. ALPA national could provide “extreme pressure” but they had no legal means to abandon the final and binding award. USAPA can abandon the Nic but they first need the Company to be a willing partner. They also need to be willing to accept the consequences of their actions. US Airways management has indicated they are not willing to accept the consequences without prior immunity. 

The Company’s Complaint

Of much hypocrisy in the Company’s complaint is the framing of its “untenable” choices regarding seniority integration as between the previous bargaining agent’s proposal (the Nicolau proposal) and USAPA’s Date of Hire (DOH) proposal. First, the Ninth Circuit has stated that any single collective bargaining agreement incorporating the Nicolau proposal “would undoubtedly be rejected by its membership.” 

Again, Mr. Cleary has no evidence to assert that an agreement incorporating the Nicolau Award would be rejected by the membership nor does the 9th. 

Second, USAPA has never proposed a pure DOH integration, but rather one so weighted with C&Rs so as to effectively create a 10-year fence around the jobs that the West pilots brought to the merger. 

Mr. Nicolau crafted his decision to protect the jobs of all US Airways pilots. Locking the west pilots in Phoenix for 10 years was not part of his Award. 

This gross mischaracterization of the choices available and of USAPA’s earlier proposal either represents a tremendous inattention to detail or deliberate mischaracterization for alternative purposes – i.e., delay. In the height of irony, had USAPA’s C&Rs had been in place now, all of the pre-merger West pilots would be recalled prior to the post-merger East pilots. The shame of it is that but for the Addington litigation most of the West furloughees would be getting their jobs back by now.

This is probably the most shameful and disgusting paragraph in his entire message. Here he blames the west pilots for their predicament. The west pilots never wavered from their obligations under the Transition Agreement. The USAPA founders and the current leadership are the only ones to blame. The real irony Mr. Cleary, is that had the east pilots lived up to their obligations the west pilots currently on the street would never have been furloughed in the first place. 

On August 16, 2007, US Airways CEO Doug Parker expressed his conviction that, “if we could get everyone together at the negotiating table, we could work something out that meets everyone’s needs – though both sides would need to move some from their increasingly hardening positions.”

The problem with this Mr. Cleary is that there are no longer two entities that can independently negotiate for each side. The election of USAPA ended that possibility. 

US Airways now laments that the Addington lawsuit did not resolve the seniority issue to the Company’s satisfaction. But remember this:  US Airways fought vigorously and successfully to remove itself as a party from the Addington litigation. US Airways asserted that the Addington claims were “not ripe” for decision because they “only allege what the defendants ‘intend’ to do, and not what they have actually done.” US Airways argued that the district court had no jurisdiction over the claim that the Nicolau Award should be implemented since such a claim required an interpretation of the Transition Agreement, which was within the exclusive jurisdiction of the System Board of Adjustment.

The 9th Circuit did not release the Company from their obligation to negotiate per the terms of the Transition Agreement. The Company is not willing to negotiate away from the Nic if the possibility exists that they will be sued once a new agreement is ratified. Why this is so difficult for Mr. Cleary to comprehend is a mystery to us.

And US Airways prevailed. Judge Wake ruled that the plaintiffs’ Nicolau-based claims against the Company must be dismissed since the claims were “minor” disputes that were within the exclusive jurisdiction of the System Board. USAPA dutifully set a date for the claims to be heard by an arbitrator, but the Addington plaintiffs declined to proceed. In any other context, we presume the Company would assert that the Addington plaintiffs had affirmatively waived their claims.

More misleading by Mr. Cleary. There is nothing to indicate that the Addington plaintiffs waived any claims against the Company. In fact, in the Company’s lawsuit it specifically states that the Addington plaintiffs sent warning letters after the 9th’s ruling indicating a willingness to sue the Company for breach of contract should the Nic be abandoned. 

With the Company having received the full economic benefit of the delay caused by the Addington lawsuit, USAPA expected that, with the lawsuit’s dismissal by the Ninth Circuit, negotiations would proceed apace – the negotiations that Mr. Parker envisioned as the means of resolving the seniority dispute.

The Company and ALPA were close to a final contract close out before USAPA’s election. Blaming the west pilots for the delay is disingenuous at best. 

Instead, US Airways has initiated yet another delay-inducing lawsuit in barefaced disregard of its previously-stated positions. Whereas the Company argued before Judge Wake that the case was not ripe due to the absence of a final agreement, the Company now argues in favor of ripeness without any negotiations having taking place. Whereas the Company previously succeeded in obtaining a dismissal based on the ironclad rule that contract disputes are within the exclusive jurisdiction of the System Board, it now asserts claims that it concedes are premised on the contractual provision of the Transition Agreement.

Again, if it is a’barefaced disregard’ as suggested by Mr. Cleary, what is the fear? The Company obviously has concerns that it will be exposed to significant liability should it negotiate away from the Nicolau Award. Mr. Parker is charged with protecting the shareholders and this new lawsuit does exactly that. If the law is on USAPA’s side, there should be nothing to fear. 

The Company’s 180-degree maneuver constitutes rank hypocrisy, and its submission of legal claims contrary to the argumentation made to (and accepted by) the same federal court, all verify our conviction that USAPA will continue to and ultimately prevail. But for a Company whose focus appears to reach only to the next fiscal quarter, the delay may be an end in itself. With the conclusion to the Addington case imminent, a management motivated by delay was forced to act now to perpetuate the logjam.

There is absolutely no indication that USAPA will ‘ultimately prevail.’ In fact, the myriad of possible outcomes from this new lawsuit do not bode well for the Association. It is hardly likely management is motivated by delay. Rather, this filing seems like an end game move to finally merge the airline. 

Our Relationship with Management

On June 4th, as the Ninth Circuit ruled, my first call after informing your BPR was to Mr. Parker. I offered to him that day the assistance of our legal team to evaluate and understand what the court had done in an attempt to reach out to him and to build on a relationship with our pilots that has been rocky at best. Although he and I have had subsequent conversations, none were relative to the Company’s supposed problems that this complaint pretends to resolve. Management’s stated motivation for this claim is flatly not supported by the facts of their earlier positions or by their absolute failure to seek solutions with USAPA.

On the contrary Mr. Cleary, the Company’s lawsuit is unquestionably supported by the facts. No judge or jury has given the Company immunity from prosecution should they negotiate away from the Nic. As a publicly traded corporation Mr.Parker has a fiduciary responsibility to protect the shareholders. 

Whatever neutrality that existed with the Company relative to the seniority integration has now evaporated with the stroke of this unconcealed scheme to delay the extrication of all US Airways pilots from bankruptcy/ATSB-era wages nearly five years from emergence. Because of this, in our view US Airways management has become the determined adversary of every single pilot on the property.

Most reasonable pilots, east and west, view this move by the Company as a good faith effort to end the stalemate.There is no question that management has shown poor leadership in the integration process, but this is not the case in this instance. 

In the end, this misguided maneuver by Management will cause them to be hoisted on their own petard. This effort at delay by fostering divisiveness will fail to accomplish their goals because we will use this as an opportunity to yet again confirm that all USAPA pilots have a right to collectively bargain, that seniority is a mandatory subject of collective bargaining and that DOH is a legitimate union objective (particularly when accompanied by USAPA’s C&R protection of the pre-merger career expectations of former-West pilots).

Petard =  a small bomb made of metal or wooden box filled with powder, used to blast down a door or to make a hole in the wall. Can also be used as a phrase such as hoisted with (or by) one’s own petard; have one’s plans to cause trouble for others backfire on one. (Either Mr. Cleary lifted this phrase directly from the dictionary like we did or he’s a student of Shakespeare. You be the judge.)

In the context of backfire and copying phrases from the dictionary one could just as easily substitute USAPA and have it read ‘USAPA will cause them to be hoisted on their own petard.’ In fact, we believe this to be a more accurate statement.  

All US Airways pilots deserve a new contract, and we will continue to put ourselves in a position to accomplish that milestone and to build on our successes. Mr. Parker has underestimated the determined resolve of the USAPA pilots and of the Board of Pilot Representatives. It is imperative that you communicate to Management your extreme displeasure with this poorly disguised attempt to delay your rightful contractual improvements. They can only realize this goal if the line pilots are willing to allow Doug Parker’s management team to continue their indifference to their employees’ legitimate right to share in the rewards of our company’s success.

We wholeheartedly agree that the US Airways pilots deserve a new contract. It is highly doubtful Mr. Parker has underestimated the determined resolve of the USAPA pilots. He fully understands that USAPA is a weak organization supported by less than 50% of the pilots and can only accomplish its goals through the threat of guerrilla like tactics.   

Don’t be part of the SCAM:

Seham, Cleary, and Mowrey = NO Contract – NO Money