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America West Merger Committee Update July 6, 2015

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Yesterday, July 5, the SLI Board of Arbitration (BOA) issued an award answering the 3 procedural questions it was presented for consideration last week. A copy of the BOAs procedural award is posted at www.west-merger-committee.com . A summary of the procedural award is as follows:

 

1. The APA should engage in best efforts to establish a new merger committee to represent legacy U.S. Airways East pilots ("East Merger Committee").

 

2. The BOA declines to answer whether a new East Merger Committee should be deemed bound by the Ninth Circuit's decision in Addington, as that question seeks a legal opinion outside of jurisdiction of the BOA. The Board declines to impose any restrictions on advocacy not imposed by a court of competent jurisdiction. (Meaning: the injunction does not apply to the arbitrators, and the arbitrators cannot give the parties legal advice as to the injunction).

 

3. Arbitration hearings are scheduled for the following periods: September 29, 30, October 1, 2, 12, 13, 14, 15 and 16, 2015; January 4, 5, 6, 7, 8, 11, 12, 13, 14,15, 2016, in Washington, D.C.

 

We are obviously disappointed that USAPA's latest antics appears to have had no consequences for it and the only ones who have had to pay the price are the parties who have adhered to their agreements and participated in good faith. Moreover, we find it monumentally disturbing that East leadership is again attempting to change its skin like a chameleon to avoid the Nicolau Award - immediately after a federal court found it liable for this exact behavior. Given that USAPA's antics seem never to have any effect on the East pilots' conduct, it has become increasingly difficult for many of us to clearly see the benefits of continuing to engage in good faith.

 

Having said the above, it is the charge of our committee to participate in a fair and equitable seniority integration process on behalf of the America West pilots for the purpose of achieving a fair and equitable seniority list at the New American Airlines. That is where our focus WILL remain, and where it MUST remain in the coming months. Succeeding in this charge necessarily means maintaining the proper perspective throughout the process. We have successfully trudged this process before, and we will successfully trudge it again. Consider the three important points that follow.

 

First, it is clear by reading the award that the primary issue driving the BOA is ensuring a legally durable seniority integration process. A seniority arbitration process that is susceptible to being later "undone" by a court decision is of no value to any of the parties, and therefore the primary goal of the BOA is to ensure that the end result of this process is indeed "final and binding." Achieving this goal necessarily means taking away any remotely plausible arguments that a party might have as to the fairness of the process itself. One incredibly important fact that favored our fight over the past several years was that the East never had any objections to the 2007 SLI process itself until the award was issued. That fact did not come our way easily however, as Arbitrator Nicolau did decide many, if not most, of the procedural disputes in the East's favor during the arbitration process. However, none of those procedural decisions unduly prejudiced our ability to present our case, and ultimately it had no effect on the arbitrator's ability to give our evidence its due consideration. In other words, we do NOT find ourselves in unfamiliar ground as a result of this procedural award. As we did nearly a decade ago, we will accept the procedural decisions as necessary to provide a legally-robust process, and dutifully press forward with our case unhindered by adverse procedural decisions.

 

Second, although we disagree with certain aspects of yesterdays procedural award, it ultimately should have little effect on the timeline. The original SLI timeline would have had the award likely issue in January - February 2016, several months in advance of the companys anticipated integration timeline. The modified SLI timeline now projects an award in March - April 2016, only two months behind the original schedule, and still well in advance of the companys anticipated integration timeline. Additionally, the award gives quite a bit of weight to our legitimate timing concerns, and goes even further to put APA and the new East Committee on notice regarding potential future delays by stating 'the Board is prepared to proceed in the event that a new Merger Committee to represent the East pilots is not created in sufficient time to participate in the arbitration process pursuant to the revised schedule ...." The award explains its rationale as follows:

 

The Board is not persuaded that the relatively minor schedule adjustments that may follow from ensuring presentation of the legitimate interests of East pilots outweigh the benefits of more meaningful representation for those pilots. That having been said, it is the Board's admonition that APA's best efforts be promptly undertaken and that the designation of a merger committee to represent the interest of East pilots and their participation in the process be accomplished without disruption of the schedule established in our answer to Question No. 3. To the extent that USAPA and its Merger Committee have exited the process and have decided not to return, that is not the responsibility of the Board or the remaining Parties and should not materially prejudice their legitimate rights and expectations with respect to the timing of the seniority list integration arbitration proceeding in this case.

 

Finally, no one should forget that we were completely prepared to present and defend the Nicolau Award as the basis of our seniority proposal prior to the Ninth Circuit's decision, and that decision only strengthens our ability to do so, irrespective of what the SLI process may look like and what some newly appointed East pilots' committee may argue.

 

Pursuant to the BOA's award, in the coming weeks the parties will "meet and confer to make all other changes to the Ground Rules Agreement necessary to incorporate the change in schedule directed by the Board and to submit all agreed upon changes to the Board for review and adoption."

As always, we will promptly notify you of any new developments.

 

Thank you for your continued support.

 

Sincerely,

 

The West Merger Committee

David Braid          Mark Burman        Johan de Vicq

Eric Ferguson       Jeff O'Connell       Russ Payne

Jim Van Sickle      Mitch Vasin          Roger Velez

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America West Merger Committee Update June 30, 2015

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Following a morning of closed, off-the-record discussions between the SLI arbitration panel and the remaining parties to the process, the arbitration panel convened oral arguments this afternoon to decide the following questions:

 

1. Whether APA should engage in best efforts to establish a new merger committee to represent legacy U.S. Airways East pilots ("East Merger Committee")?

 

2. Whether a new East Merger Committee, if any, should be deemed bound by the Ninth Circuit's decision in Addington?

 

3. What shall be the revised schedule for the ISL hearing (including, without limitation, the schedule for establishing a new East Merger Committee, if any).

 

Our position is that the arbitration panel has no authority to answer question one and two. However, should the panel decide to answer those questions, our position is quite simple and unremarkable: we believe that the process should continue to move forward per the written agreement of the parties, and there is well settled law providing that arbitration proceedings continue unabated in the event one of the parties voluntarily withdraws. We encourage you to read the transcripts and briefs requested by the panel (which will be submitted by midnight tomorrow night, July 1, and will be posted on this site) to become fully informed of our position, as well as the positions of the other parties (American Airlines, Allied Pilots Association, and AAPSIC). The panel will render a written decision on these questions no later than midnight Monday, July 6.

 

At this time, the remaining July hearing dates, commencing Monday July 13, as well as the September and October hearing dates remain intact. The arbitration panel has also reserved the first two weeks in January on their schedules in the event additional hearing dates are needed.

 

We will continue to keep you updated as events continue to transpire.

 

Thank you for your continued support.

 

Sincerely,

 

The West Merger Committee

David Braid          Mark Burman        Johan de Vicq

Eric Ferguson       Jeff O'Connell       Russ Payne

Jim Van Sickle      Mitch Vasin          Roger Velez

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America West Merger Committee Update June 28, 2015

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As you're aware, on Friday June 26, the Ninth Circuit issued a published decision in the latest Addington lawsuit against USAPA, holding USAPA liable for breaching its duty of fair representation to the West pilots. As a primary remedy, the court ordered as follows:

 

"We thus remand this case with instructions to the district court to enter an order enjoining USAPA from participating in the McCaskill-Bond seniority integration proceedings, including any seniority-related discussions leading up to those proceedings, except to the extent that USAPA advocates the Nicolau Award. This remedy adequately accounts for our uncertainty over whether the Nicolau Award would have been implemented because it allows for the possibility that the SLI arbitration panel might not ultimately use the Nicolau Award in its final integration of the US Airways and American Airlines Pilots. It also limits USAPA's participation in the seniority integration proceedings, but does not prohibit USAPA from advocating the seniority position of the East and West Pilots, collectively, as against the American Airlines pilots. Nor is USAPA barred from participating, to the extent it is otherwise permitted, in negotiations regarding other labor matters. At the same time, our injunction has the benefit of alleviating the West Pilots' hardship of fighting on two fronts and ensuring that the East Pilots cannot exploit the benefits of USAPA's breach any longer”

 

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America West Merger Committee Update June 29, 2015

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As you're aware, earlier today the arbitration panel met with the attorneys and chairman from each committee, in closed session, in lieu of holding opening arguments as originally scheduled. The panel put all the parties under a strict confidentiality order, such that we cannot discuss the details of the meeting. However, portions of today's meeting did take place on record, and we will publish those transcripts just as soon as they come available. The meeting will reconvene tomorrow morning, Tuesday, June 30, in closed session, and predominantly off the record.

 

We reiterate our view that we are committed to minimizing disruptions to the SLI process while also ensuring that the Ninth Circuit mandate is honored. We will promptly notify you of any new developments.

 

Thank you for your continued support.

 

Sincerely,

 

The West Merger Committee

David Braid          Mark Burman        Johan de Vicq

Eric Ferguson       Jeff O'Connell       Russ Payne

 

Jim Van Sickle      Mitch Vasin          Roger Velez

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America West Merger Committee Update June 26, 2015

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In this final update before the commencement of the seniority arbitration proceedings, we have three items to discuss with you.

 

PRE-HEARING BRIEFS AND SENIORITY INTEGRATION PROPOSALS

 

As you are aware, on Friday June 19, all three merger committees exchanged and submitted to the arbitration panel pre-hearing briefs, exhibits, and proposed seniority lists. The pre-hearing briefs, proposed seniority lists, and witness lists are posted at the following locations:

 

http://www.west-merger-committee.com

https://public.alliedpilots.org/apa/

Home/SeniorityIntegration.aspx

 

While we know that it is difficult to refrain from reacting to some of these proposals, it is important that we all be reminded that we are very much on familiar ground here. Each proposal will be vetted by a 3-member arbitration panel after 12-16 days of witness testimony and exhibits, and history has consistently shown that unreasonable positions rarely, if ever, survive that degree of objective scrutiny. We therefore encourage all pilots to remain engaged in the process, and refrain from allowing it to become a matter of fruitless, and potentially divisive debate with folks with whom we will be sharing cockpits in the near future. History has also shown the extraordinarily detrimental effects of allowing seniority integration to spill outside the confines of the agreed-to process.

 

OBJECTIVE OVERVIEW OF THE POSITIONS

 

We thought it might be helpful to provide you an objective summary of each committees proposal. The purpose of this summary is to provide you with a general overview of the main arguments presented by each committee, so that you have a bit more focus on the issues as you follow along the arbitration proceedings. It is not our purpose here to mischaracterize any positions, or otherwise promote or diminish any of the positions; simply to explain them as we understand them.