Declaration of APA Outside General Counsel Wesley Kennedy
Has USAPA embedded Judicial Estoppel, Created a Stronger Case for Judge Silver’s Pyrrhic Victory, and Mislead the Pilots All Along?
Did USAPA in fact authorize a MOU that Waives the US Airways Pilots Rights to have USAPA negotiate seniority at the M-B ISL Arbitration, if held?
This discussion is a little long, but APA outside counsel Wesley Kennedy’s declaration is absolutely stunning and I believe could be devastating to USAPA. In addition, I believe his sworn testimony further embeds USAPA’s failing arguments and unsupportable positions; as well as further erodes any confidence that USAPA is a creditable organization. Once again, what bothers most is USAPA’s lack of transparency and honesty with the pilots under the guise of strategy. Baloney.
On May 29, 2014, Kennedy filed his Declaration with the DCA District Court. Kennedy has been “a shareholder in the Chicago, Illinois law firm of Allison, Slutsky & Kennedy, P.C. since its founding on or about January 1, 1995. I hold a Bachelor of Arts degree, with Honors, from Grinnell College, awarded in 1981; and a J.D. degree from the Yale Law School, awarded in 1984. From 1984 until the founding of Allison, Slutsky & Kennedy, P.C., I practiced law as an associate and then partner in the Chicago, Illinois firm of Cotton, Watt, Jones & King.”
Kennedy’s sworn testimony declaration is stunning. Kennedy clearly places an exclamation point on APA’s charge that ““The Court 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. That is, having prevailed in convincing the Court that only the certified representatives should participate in seniority discussions, once USAPA is no longer a certified representative, it will change its position and argue entities other than certified representatives should be allowed to participate. The Court’s patience with USAPA has run out. . . .[W]hen USAPA is no longer the certified representative, it must immediately stop participating in the seniority integration,” which makes Judge Silver look like a prophet with her prediction.
Here’s why. During MOU negotiations in December 2012, over 18 months ago, USAPA argued that following SCC USAPA would be the appropriate party to negotiate in any seniority integration arbitration and that a subset of a union could negotiate seniority after SCC. This position was not acceptable to AMR, LCC, and APA almost two years ago! Then why were US Airways’ pilots not told this information by USAPA before they ratified on the MOU?
Then USAPA flipped its position and argued that only USAPA can negotiate seniority for the pre-merger US Airways & America West pilots during the Addington II trial in January 2014, which became hypocritical.
Clearly, USAPA violated Judical Estoppel during the Addington II DFR trial with Kennedy’s new evidence and declaration and then again in its M-B lawsuit.
Again, USAPA once again flipped its position, again violating established labor law/practice, when the union attempted to convince AAG and APA during PA discussions that USAPA must be allowed to represent all US Airways’ pilots during the M-B ISL arbitration, if held.
Let’s be honest here. Since the beginning of MOU discussions USAPA’s sole strategy has been focused on virtually stapling the West pilots to the bottom of the ISL. I believe USAPA’s position is more unsupportable than ever and the BPR is being advised by attorneys who are more concerned about billable hours than providing sound legal advice. And, I believe it’s wrong for the pilots to support positions that might lead to malpractice and Judicial Estoppel, which is something the former bargaining agents legal staff never did!
Furthermore, USAPA negotiated a MOU knowing full well that Doug Parker, Tom Horton, and Keith Wilson all supported a 3-way M-B ISL arbitration and that USAPA would be given a seat at the table; along with the West pilots, following SCC. But, USAPA hid this information from the pilots and let the pilots ratify the MOU thinking Section 10h would prevent a West MC, but this strategy is failing.
What bothers me the most is USAPA’s lack of transparency and honesty again!
For example, why were the pilots not told that by ratifying the MOU USAPA knew full well that AAG and APA would require USAPA to cease all M-B ISL work even before Judge Silver’s ruling that USAPA would unequivocally cease to represent the US Airways pilots post SCC. USAPA knew this point while they were negotiating the MOU creating the problem!!
USAPA’s actions are solely intended delay the proceedings while it tries to figure out how to prevent the West pilots from having a voice at the M-B table. Furthermore, USAPA will not represent the West pilots fairly and attempt to force an 8.5:1 SLI on the West pilots before a M-B ISL arbitration. However, AAG and APA have formed an alliance to prevent multiple lawsuits to be filed for DFR and liability if the partners permit USAPA to implement its strategy.
According to Kennedy, “In fact, during the negotiations leading to Section 10 of the MOU, there was a disagreement as to who the appropriate parties would be in any seniority integration arbitration. USAPA’s (MOU) negotiators contended that USAPA should remain the only party to the seniority integration arbitration representing the US Airways Pilots (including both the East and West Pilots) until the conclusion of an integrated seniority list, even if that occurred after APA or another organization was certified by the National Mediation Board (“NMB”) as the bargaining representative of the combined craft or class of American and US Airways Pilots, and USAPA thereby lost its status as a bargaining representative of any affected pilots. The negotiators for American, US Airways, and APA took the position that, once a single bargaining representative was designated for the combined craft or class, that single bargaining representative would as a matter of law assume responsibility for assuring the representation of the constituent pilot groups, consistent with the MOU, the organization’s duty of fair representation, and the organization's other legal obligations.”
Kenney continued, “APA was unwilling to agree to the USAPA formulation, which made USAPA the representative of the US Airways Pilots even after certification of a single bargaining representative for the combined craft or class.”
Now it appears USAPA’s SLI strategy is to file a lot of legal petitions (NMB petition, M-B lawsuit, Addington II DFR appeal for a case the union won) in hopes the NMB will not rule on SCC. This would allow USAPA to remain as the collective bargaining agent and relevant as long as possible and prevent an operational integration of pilot groups.
In addition, APA said, “Accordingly, APA was unwilling to agree to a Protocol that would permit USAPA to block changes that APA may deem necessary to fulfill its duty of fair representation – particularly in light of the fraught history between USAPA and the America West pilots."
Once again, why did USAPA not inform the pilots of this important point? Where’s USAPA’s transparency, again?
Why hasn't USAPA told us this? Seems there's our answer to the question as to what APA thought of USAPA's proposals.
Make no mistake about it, USAPA’s actions are harming every New American Airlines stakeholders and threatens the long-term profitability of the combined business entity because the new corporation would not be able to obtain the cost and revenue synergies of a fully integrated company as described in American Airlines’ Disclosure Statement if the integration is delayed.
In conclusion, USAPA’s arguments are inconsistent and unsupportable. According to Kennedy as early 2 years ago USAPA attempted to negotiate MOU language that would permit USAPA’s MC to have its own seat at the M-B ISL arbitration table post SCC, if held, but LCC, AMR, and APA said “no.” The parties then negotiated a MOU that provides SCC that would likely permit APA to be designated the combined pilot group’s agent before the M-B arbitration would be held. It is likely USAPA took this action at the risk of Judicial Estoppel so the union could prevent the West pilots from having a seat at the M-B arbitration table, if held, per US Airways’ Summary Judgment, Reply and Counterclaim, and AAG/APA’s PA discussions.
Make no mistake about it USAPA duped the rank-and-file. The union negotiated and ratified a MOU that permitted SCC knowing full well the new contract prevented USAPA from being antonymous at the M-B arbitration table, if held, before Judge Silver ever ruled on the Addington II DFR complaint!
Moreover, the timing of AAG and APA’s Replies and Kennedy’s declaration shortly before the NMB rules on SCC is likely no coincidence. It will be interesting to see how this unfolds, but it appears to me USAPA’s actions are moving us closer and closer to Judge Silver’s prediction of a Pyrrhic Victory.
And, not only has USAPA committed Judicial Estoppel multiple times, the union has mislead the pilot group with communications that misrepresent the situation. Where’s the transparency from this rogue organization that clearly commits DFR?
