Tomorrow, December 15, marks an important day for all America West pilots: the beginning of the Preliminary Arbitration hearings to determine whether or not the America West pilots will be granted the right to autonomously represent ourselves in the upcoming McCaskill-Bond seniority integration process. Or, more importantly, whether or not USAPA will finally be relieved of the ability to unilaterally dictate the US Airways seniority list that will be used for the integration of the American Airlines and US Airways pilots.
As we previously reported to you, all parties to the process, American Airlines, APA, the APA merger committee, USAPA, and the East, West, and American Airlines merger committees, have submitted pre-hearing briefs to the arbitration panel. The purpose of the briefs is to explain in advance the dispute and the positions of the parties. We have posted the briefs on our website: www.west-merger-committee.com
We understand that reading through 30-page legal briefs is a bit onerous for many, so we will attempt here to summarize what these briefs say.
As an initial matter, there is disagreement as to what the question at issue is before the arbitration panel. In many arbitrations, the parties agree ahead of time what the question is, and merely disagree about what the answer to that question should be. In other arbitrations, the parties generally agree about the substance of the dispute, but have disagreement as to how that dispute should be framed.
In this case, there is not unanimous agreement as to what the question at issue should be. American Airlines, APA, and the West Committee all essentially agree that the question before the arbitrators is a simple one: whether APA has discretion, as the exclusive bargaining agent for all pilots, to provide for a West Committee. The proposed questions at issue are as follows:
American Airlines: The issue(s) presented for determination by this Preliminary Arbitration Board are whether APA has the authority to designate a West Pilots Merger Committee and whether it should do so.
Allied Pilots Association: Should the West Pilots request that APA designate a separate merger committee to represent the interests of pilots on the US Airways (West) Seniority List be granted as a valid exercise of APA's discretion as the exclusive certified bargaining representative for all Company pilots?
America West Merger Committee: Does APA, as the certified exclusive bargaining agent for all American Airlines pilots legacy American Pilots, East Pilots and West Pilots have discretion to appoint a merger committee to represent the interests of the West Pilots in the SLI process?
USAPA and the East merger committee have quite a different view of the matter, and have thus proposed that the question at issue reflect the language in the Protocol Agreement:
The Preliminary Arbitration Board shall issue an order granting or denying any such requests that APA designate the requested Committee.
Despite this acknowledgment that the Protocol Agreement empowers the arbitration panel to decide this issue, USAPA frames that question so as to suggest that the matter has already been decided in court and the arbitration panel must be bound by that decision. The difference between USAPA's position and the position of the other parties can be fairly summarized as whether APA has discretion to appoint committees as it deems appropriate to fulfill its legal duty or is APA bound to exclude parties from the process that do not otherwise have an independent right to participate.
The briefs from American Airlines, APA, and the West merger committee all essentially raise the same general points: (i) APA is the sole legal bargaining agent for all American Airlines and US Airways pilots, (ii) APA, together with the Company, has a legal duty to administer the McCaskill-Bond process, (iii) APA must administer that duty in a manner that is equally fair to all of the pre-merger groups, (iv) APA necessarily then must be provided the discretion to adequately discharge those duties, (v) appointment of a West committee is well within that discretion, (vi) appointment of a West committee is particularly warranted in light of the well-documented history of animosity of West pilots by USAPA, and (vii) appointment of a West committee does not prejudice either pre-merger party, whereas exclusion of a West committee arguably does.
The brief from USAPA and the East merger committee raises three main points: (i) that Judge Silver's decision bars West participation, even over and above the discretion of the bargaining agent, (ii) even if the West pilots were not barred from participating, the West pilots should not be afforded another opportunity to advocate for the Nicolau Award because they have been unable to get a court to impose it, and (iii) allowing for a West merger committee pits US Airways pilots against one another and therefore prejudices USAPAs ability to represent all US Airways pilots against the American pilots.
The West committee, correctly anticipating that USAPA would make these arguments, argues in its brief that even if the question at issue is whether the West committee has a right to participate (e.g. whether the present state of court cases pre-dictates the arbitrators' decision on that question), none of the past court decisions serve to prevent participation of a West committee at the discretion of the legal bargaining agent. That is, the position of American Airlines, APA, and the West committee does not in any way contravene any of the court decisions.
All of the arguments, exhibits, and testimony in the coming days are designed to resolve the issues explained above. As we previously promised, we will post hearing transcripts on our website no later than the day after each hearing day. We will also attempt to keep you updated during the hearings, as time and workload allow us to.
Monday's hearing will begin with discussion of several preliminary matters, followed by opening statements. APA will go first, followed by American Airlines, APA's merger committee (American Pilots Seniority Integration Committee or APSIC), then the West committee, and finally USAPA. Following opening arguments, each party will have an opportunity to present witnesses. APA, American Airlines, and APSIC have all expressed that they have no plans to call witnesses, whereas both the West committee and the East committee do plan to call witnesses. Following direct and cross-examination of all witnesses, each of the parties will have the opportunity to present a brief rebuttal case, and then present closing arguments. The Protocol Agreement asks that the arbitrators issue a decision within 30 days of the end of closing arguments. It is our hope to conclude the hearing by close of business Wednesday. If not, we will continue the hearing January 22-23.
As you imagine, this is quite an expensive week for the committee, and we absolutely could not have come this far without your unwavering support. We will continue to need your support in the coming weeks. Please visit www.cactuspilotcontributors.com/contribute.html to assist with our ongoing efforts.
The America West Merger Committee
David Braid Mark Burman Johan de Vicq
Eric Ferguson Jeff O'Connell Russ Payne
Jim Van Sickle Mitch Vasin Roger Velez