Arbitration on NMB Filing/M-B Status to be held on June 17-19, 2014?
APA SIC Chairman Mark Stephens’ Declaration (Doc 26 Key Pieces of Information) & US Airways/American Airlines Motion to Compel (Doc 27): May 2, 2014
Submitted under penalty of perjury that the foregoing is true and correct.
From Document 26 APA SIC Chairman Mark Stephens’ Declaration
Paragraph 14 - USAPA’s December 19, 2013 draft did not refer to merger committees representing the pre-merger pilot groups in the seniority integration process. Instead, the draft provided for negotiation and arbitration of the seniority integration between “USAPA” and “APA.” The effect of this proposal was to give USAPA continued control of the participation of both the East and West pilots in the seniority integration process, even after it ceased to be a certified bargaining representative; and to prevent APA, after certification as the single bargaining representative of the integrated craft or class, from exercising its representational authority by providing for separate participation for the “West” pilots in the seniority integration process, if APA so chooses.
Paragraph 20 - Paragraph 2 of the January 29, 2014 USAPA proposal provided The effect of this proposal was to restrict APA from providing, after certification as the single bargaining representative of the integrated craft or class, for separate participation for the “West” pilots in the seniority integration process if APA so chooses.
Paragraph 24 - Like the January 17, 2014 APA proposal, this proposal (APA’s February 5, 2014 proposal) would have confirmed that, once APA was certified as the single bargaining representative of the combined pilot group, it would assume responsibility for the structure of the pre-merger groups’ merger committees consistent with its legal obligations, including the discretion to provide for the separate participation of the West Pilots in the seniority integration process if APA so chooses.
Paragraph 33 - Following the February 16, 2014 APA proposal, an email exchange ensued between Szymanski and Kennedy, a copy of which is Exhibit 10. The only principal significant remaining substantive issue was USAPA’s insistence on the right to assert continued party status following the certification of APA as the single bargaining representative. According to Szymanski:
¶19. Revert to APA’s original proposal with the understanding that the purpose and intent of doing so is to allow the parties to reserve their positions regarding a West merger Committee and any changes to the Protocol Agreement. USAPA will not waive its position on these issues, but we would agree to leave any dispute until when/if APA is certified.
Paragraph 34 - APA and the SIC were unwilling to agree to such a reservation of rights, for the precise reason that USAPA had argued to the court in Addington v. US Airline Pilots ***’n, No. 13-cv-00471, Doc. 298 (D. Ariz. Jan. 10, 2014), that only the certified bargaining representative is a proper party to the seniority list arbitration, albeit with separate committees representing the pre-merger seniority list pilots, and that APA would be that representative when the arbitration would occur under the MOU. The court held that it “has no doubt that—as is USAPA’s consistent practice—USAPA will change its position when it needs to do so to fit its hard and unyielding view on seniority. . . . The Court’s patience with USAPA has run out. . . . And when USAPA is no longer the certified representative, it must immediately stop participating in the seniority integration.” A copy of the decision is Exhibit 11, quoting language at 20-21.
Paragraph 35 - Thus, although there was agreement on virtually all issues – including a procedure for the selection of arbitrators – the parties were unable to finalize a Protocol Agreement by the February 18, 2014 deadline.
USAPA Attempts to Repudiate the Seniority Provisions of The MOU and Refuses to Arbitrate the MOU Disputes.
Paragrpah 41 - USAPA has never responded to the Company’s or to APA’s proposal.
Paragraph 42 - USAPA filed a request with the NMB on February 20, 2014, in an attempt to avoid the process and time lines set forth in the MOU by invoking Section 13(a) of the Allegheny-Mohawk LPPs, seeking a panel of seven potential arbitrators from which USAPA claimed the parties would select one to resolve their seniority-integration dispute. A copy of this request is attached as Exhibit 12.
Questions At Issue
(a) Whether USAPA violated MOU Paragraph 10 (and related provisions of the MOU) by unilaterally requesting, on February 20, 2014, that the National Mediation Board “NMB”) provide a list of seven potential arbitrators for a seniority-integration arbitration involving the pilots employed by US Airways and American (collectively “Carriers”) in order to pick one arbitrator to resolve disputes over the integration of three seniority lists.
( B) Whether USAPA violated MOU Paragraph 10 (and relatedprovisions of the MOU) by repudiating the seniority integration process and timelines, as evidenced by USAPA’s February 27, 2014 filing of a complaint in federal district court to compel APA and the Carriers to arbitrate the seniority integration of US Airways and American pilots pursuant to the timelines and procedures set forth in Section 13(a) of the Allegheny-Mohawk LPPs, as opposed to the process and timelines set forth in the MOU.
(c) Whether, as a contractual matter, the parties’ failure to execute a Seniority Integration Protocol Agreement, referenced in MOU Paragraph 10(f), renders ineffective any of the other provisions of MOU Paragraph 10, specifically including the arbitrator-selection and hearing-schedule provisions in MOU Paragraph 10(a).
(d) Whether, as a contractual matter, the parties’ failure to select arbitrators, pursuant to either the arbitrator-selection provision in MOU Paragraph 10(a) or through a Seniority Integration Protocol Agreement under MOU Paragraph 10(f), renders ineffective any of the other provisions of MOU Paragraph 10, specifically including the hearing-schedule provisions in MOU Paragraph 10(a).
If so, with respect to Issues (a)-( B), what shall be the remedy?
As a remedy for the above violations of the MOU, APA requests the Board of adjustment to enter an order directing USAPA to:
(a)cease and desist from taking any action that is contrary to, or inconsistent with, any of the arbitrator-selection or other seniority-integration provisions in the MOU;
( B) attempt to mutually agree to an arbitrator-selection procedure in accordance with the provisions of MOU Paragraph 10. In this regard, MOU Paragraph 10(e) states: “The obligations contained in this Paragraph [10] shall be specifically enforceable on an expedited basis before a System Board of Adjustment in accordance with Paragraph 20 . . .;;” and
(c) refrain from insisting that APA submit the seniority integration dispute to a single arbitrator (as opposed to a panel of three arbitrators), and from insisting that they select that one arbitrator from the panel provided by the NMB in response to USAPA’s unilateral February 20, 2014 request.
APA requests, further, that the Board of Adjustment issue the following rulings as to disputed issues of MOU interpretation and application:
(d) USAPA breached the MOU in the manners set forth above and in the Carriers’ Statement of Facts;
(e) The arbitrator-selection provision in MOU Paragraph 10(a) remained operative and in effect, as a contractual matter, even though there was no agreement to a Paragraph 10(f) Seniority Integration Protocol Agreement by the applicable deadline; and
(f) The seniority-integration provisions in MOU Paragraph 10 and related paragraphs, including without limitation the hearing schedule provisions in Paragraph 10(a), remain operative and in effect, as a contractual matter, even though there was no agreement to a Seniority Integration Protocol Agreement by the applicable deadline and even though no arbitrators have been selected.
From Doc 27 Airways and American Motion to Compel
"Although USAPA refused to even discuss potential hearing dates, the Company reserved the earliest block of dates Mr. Bloch had available (June 17-19, 2014), so that an arbitration can be conducted promptly if the Court grants the Company’s motion to compel. Dkt. 26-22 (Stephens Decl. Ex. 20), at 6, 7.4"
Comment: The requested arbitration by APA and AAG through its Motion to Compel could be court ordered to be held on June 17-19, 2014, which is about 5 weeks away.
