The attorneys for the West Class and Leonidas LLC have spent the last two weeks reviewing Judge Silver’s decision. While we do not agree with her decision for the reasons stated in our numerous briefings and during trial, we are left to work with her decision while any appeal winds its way through the system.
What does Judge Silver’s ruling on McCaskill-Bond mean for the West Pilots, East Pilots and USAPA?
It is important to note that McCaskill-Bond is a new federal statute that has not been reviewed by any courts (other than now Judge Silver). As we have been for much of our struggle against USAPA, we are once again on the legal vanguard. We must stress that although we did not obtain the relief we requested on McCaskill-Bond, we do not believe that Judge Silver’s ruling forecloses the West Pilots participation in the McCaskill-Bond seniority integration process. Although Judge Silver ruled that the West pilots don’t have the right to participate in the McCaskill-Bond process, she did not rule that West Pilots could not participate; rather she determined that it is up to the collective bargaining agent to determine what groups of employees must participate in the process in order to make it fair and equitable. Conversely, Judge Silver unequivocally held that USAPA cannot participate once it is no longer the certified bargaining agent.
Judge Silver called USAPA’s victory on McCakill-Bond “Pyrrhic” because USAPA, once again driven by its single-minded need to oppress West Pilots, has been the mastermind of its own march towards irrelevance. USAPA took the position that only the certified bargaining agent can determine who can participate in McCaskill-Bond in an effort to prevent West participation. Once again, USAPA did not think through its legal strategy because Judge Silver’s acceptance of that argument means that once USAPA ceases to be a collective bargaining agent it cannot participate in McCakill-Bond or seniority integration. Judge Silver was unequivocal on this point: “when USAPA is no longer the certified representative, it must immediately stop participating in the seniority integration.” Doc. 298 at pg. 21:11-12. We will enforce the Court’s ruling that USAPA cannot be involved in seniority integration at the earliest practicable date.
As you all know, APA filed with the NMB to become the certified bargaining agent for New American pilots on January 14th. From the recent APA updates, “the leadership at APA anticipates that APA will become the representative organization for the combined pilot group and that the NMB will likely render its decision within the next six months.” (Note: When USAPA filed for single carrier status, it took the NMB 72 days rule.) According to APA, “the completion of an integrated seniority list is not a mandatory pre-condition for a single-carrier finding by the NMB. In fact, in the vast majority of significant airline mergers, the NMB has found a single carrier before the completion of seniority integration.” (In 2007, ALPA opposed USAPA for similar reasons to no avail.) It is increasingly obvious that USAPA’s plan to stay relevant is to oppose APA’s Application to the NMB and urge no decision until the integration process is done.
Under our interpretation of Judge Silver’s ruling, when APA becomes the certified bargaining agent for all New American pilots, APA will be responsible for determining which groups of employees are required to have separate representation for purposes of McCaskill-Bond. We believe that in line with their DFR obligations, APA will make the determination that the West Pilots should be afforded their own representation.
What is the status of the Nicolau Award?
Judge Silver did not rule against the Nicolau Award or that USAPA is free to proceed with date of hire. Rather, her narrow ruling found that USAPA had a legitimate union purpose for entering into the MOU. We believe this ruling was incorrect on both procedural and substantive grounds, but if the West Pilots are granted, as we believe they will be, their own representation in McCaskill-Bond, we still have the right to ask the Panel that the relative order of the US Airways pilots in any integration with American should be that found in the Arbitrated Nicolau Award.
What happens now?
In her ruling, Judge Silver stated that USAPA’s current position of denying the West Pilots their own representation in McCaskill-Bond was “unwise” and that USAPA still has an obligation under McCaskill-Bond, as long as it is the certified bargaining representative for West Pilots, to give “extensive consideration” to the interests of the West Pilots and to make every effort to see that the West Pilots interest “are fully and fairly represented” during seniority integration. Order at pg. 21:8-11.
Earlier this week, the attorneys’ for the West Pilots sent a letter to Brian O’Dwyer, general counsel of USAPA, urging them to set up separate East and West committees, as chosen by the East and West BPR representatives for purposes of seniority integration. We also proposed that the issue of East and West seniority be finally decided by a single arbitrator. We have not heard back from Mr. O’Dwyer and given USAPA’s past conduct are not exceedingly hopeful for a positive response; however, our proposal is undoubtedly the solution to the issue of East/West seniority that has plagued us for so long. It is also the only option to solve this issue before APA is forced to inherit it. You can read this letter in its entirety (here).
What can you do?
Our fight is not over. It is critical in the next few months that we continue to have representation and funding.