NoYellowNeck
Senior
- Aug 6, 2011
- 275
- 245
Tonight we will update you on two filings in the Declaratory Action case and provide some commentary on Mike Cleary’s sudden reversal of his exhortations to continue wearing USAPA's “Safety First” yellow lanyards in defiance of company policy. Lastly, we will comment on the company’s injunction lawsuit against USAPA.
When we last spoke of the company’s Declaratory Action, one of the filings we discussed was the company’s motion to dismiss USAPA’s counterclaim (Doc. 98). After Judge Silver denied USAPA’s motion to have the company’s entire Declaratory Action dismissed (see Judge Silver’s order, Doc. 85), USAPA was forced to file their response to the company’s complaint (Doc. 1). Rolled into USAPA’s response (Doc. 88), was a counterclaim against the company which essentially asked Judge Silver to grant the company’s third claim for relief – that irrespective of whether a Nicolau or non-Nicolau seniority list is used, that no liability will attach to the company. The company then asked Judge Silver to dismiss USAPA’s counterclaim because USAPA failed to join the West pilots as a necessary party (citing Rule 19 of the Federal Rules of Civil Procedure). USAPA responds (see Doc 99 ) by arguing that the company is wrong because the West is already a party to the lawsuit, and therefore the West need not be joined under Rule 19. So, the issue between USAPA and the company centered on the distinction between whether Rule 19 required an existing party to a suit must be joined on an individual claim. USAPA, says no, which is consistent with their history of trying to believe that the West does not exist and therefore has no individual legal standing to assert their rights in a court of law. The company explains why (Doc 102 ) USAPA is wrong:
“EEOC v.Peabody Western Coal, 400 F.3d 774 (9th Cir. 2005), on which USAPA places primary reliance, addressed a necessary party (the Navajo Nation) against whom the plaintiff could not assert a direct cause of action. There is no such problem here: USAPA’s Counter- Claim for declaratory judgment can be asserted directly against the West Pilots. Moreover, the eventual outcome of the EEOC v. Peabody Western Coal litigation was that the Navajo Nation had to be (and in fact was) named as a defendant on the claim at issue rather than merely being present in the lawsuit in some other capacity—the exact opposite of the result sought by USAPA with respect to the West Pilots.” [Doc. 102, Pg. 2]
Pay particular attention to Footnote 2 on the same page (our emphasis is added):
“In EEOC v. Peabody Western Coal, 400 F.3d at 780, the Ninth Circuit held generally that the Navajo Nation was a necessary party under Rule 19, but did not specify precisely how the Navajo Nation should be joined in the litigation given that the EEOC could not assert a direct claim against it. A subsequent appeal in the same case, which USAPA fails to cite, clarifies the matter. See EEOC v. Peabody Western Coal, 610 F.3d 1070 (9th Cir. 2010). On remand from the original appeal, the EEOC named the Navajo Nation as a defendant on its Title VII claim. The district court dismissed the Nation from the lawsuit on the ground that it could not be sued under Title VII. Id. at 1078. The Ninth Circuit reversed, and held that the Navajo Nation was a proper defendant. Id. at 1080.” [Doc. 102, Pg. 2, FN2]
Peabody is a complex case with a long history in the District Court and the Ninth Circuit, but if you care to read the latest opinion which the company cites (and USAPA conveniently fails to cite), you can download it here: http://caselaw.findlaw.com/us-9th-circuit/1529059.html
Finally, the company rounds out their argument by noting that USAPA’s counterclaim fails on its face:
“USAPA’s Counter- Claim is for a declaratory judgment to the effect that “US Airways would not be liable” to any pilot employed by US Airways (which includes the West Pilots) if it were to agree to a collective bargaining agreement with USAPA that does not implement the Nicolau Award. (Doc. No. 88 at 20 ¶ 67 (emphasis added). To state a claim under the Declaratory Judgment Act, however, USAPA must establish that “there is a substantial controversy between parties having adverse legal interests, and the controversy is of sufficient immediacy and reality to warrant declaratory relief.” Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir. 1990) (emphasis added). US Airways is not adverse to USAPA with respect to a declaration of US Airways’ nonliability. The West Pilots are. Thus, the West Pilots are not merely necessary parties to this action; they are necessary parties to USAPA’s Counter-Claim.” (Doc. 102, Pg. 3)
Notwithstanding the obvious defect in USAPA’s counterclaim as stated immediately above, our point is this: There is absolutely no excuse to improperly cite holdings from case authority, either by not citing the latest authority, or by flagrantly arguing that a holding means something wholly contrary to what the plain text says. USAPA manages to commit both infractions in Doc. 99. USAPA does not cite to the latest Peabody authority, nor does USAPA disclose to the tribunal the adverse holding of Peabody to USAPA’s argument. We call your attention to this now for several reasons. One, there is a long history of USAPA doing this, which was first demonstrated throughout its campaign to replace ALPA. USAPA repeatedly and grossly embellished the legal efficacy of its DOH pursuit. We saw it again throughout the Addington proceedings when the clear holdings of case law were routinely perverted and argued well out of proper context. Judge Wake routinely admonished USAPA for this, and it appears that this practice will continue throughout these proceedings.
Secondly, the principal-agent relationship is a special relationship which demands and deserves the highest level of honesty as to what the truly law is, and how that translates into the client achieving their goals. If any East pilots are reading this (and we know many do), we ask you to reflect on the last three-and-a-half years of USAPA representation, and measure what you have been told all along against where we are today as a pilot group. Read the latest filing in Judge Silver’s court by the company and ask yourself how your legal bargaining agent can be telling you the truth if they can’t even cite the holdings of case law correctly. Think about the duty you are owed by your legal representatives to be honest with you, and ask yourself how that duty is being fulfilled when your bargaining agent fails to be candid with tribunals.
There is a reason why East pilots remain at the absolute bottom of the industry and why negotiations are stalled. It is the same reason why pilot unity is nonexistent, and it is the same reason why Cleary exhorts blatant defiance of the new lanyard policy but then promptly reverses course. It is the same reason why USAPA now stares down the business end of a legal shotgun in the company’s injunction action. All one needs to do is read the deceptive arguments contained within Doc. 99 to understand why life for the average line pilot is fraught with frustration, anger and despair.
The path to achieving a new contract is clearly defined in Section 6 of the RLA. While the current USAPA leadership accuses the company for creating obstacles to an improved contract, it is obvious to everyone else that USAPA's insistence that Section 22 be renegotiated is the primary roadblock. USAPA's position on the seniority matter is unprecedented in the history of the Railway Labor Act, as the combined seniority list at issue was the product of a mutually agreed-to binding arbitration! For three-and- a- half years now, this approach has proven entirely fruitless. The angst felt by the East rank-and-file is understandable, but taking it out on the company in the form of an illegal job action is not the answer. The blatant effort of Cleary, Kubic and much of USAPA's leadership to harvest this rage and channel it into an illegal job action that jeopardizes the union's existence, harms the company, and puts individual pilots at risk of termination is reprehensible.
As always, we encourage every pilot to download and read all of the filings in all of the ongoing litigation, with extra emphasis on the company's injunction casethis week. We are not rooting for the company here, but pay particular attention to the sixty-nine page report of the company’s expert witness, Dr. Darin Lee, who received his doctorate in economics from Brown University. Consider the scope and detail of the company data presented in Dr. Lee’s report, and consider the time, money and effort that management has invested in building the mountain of evidence which is soon to be argued before Judge Conrad in North Carolina. While the PHX based pilots have been operating in a “business as usual” fashion, if the company's data is to be believed, it is clear that the pilots from the other bases have not. What is most revealing, however, is that if all East pilots were really “On Board,” the numbers would be far more disparate as between East and West. Even with the very best efforts of Cleary's “true believers,” it is obvious that his real support has dwindled to a relative handful of malcontents. Those malcontents probably take pride in Cleary's recent statement calling superficial union symbols “Spent Cartridges of the Battlefield.” Spent cartridges . . . give us all a break, Mike.
We are now to the point where the collision between reality and USAPA’s spin can no longer be masked by the USAPA Minister of Propaganda, Scott Theuer. There is only one way out for this pilot group: HONESTY - honesty about the facts leading up to our present situation, honesty about the legal obligations of the bargaining agent to fairly represent all of its members, and honesty about how to achieve the goals set for Section 6 negotiations within the letter of the law. We as a pilot group must admit that seniority was never just an intra-union dispute. Under the radical leadership of Cleary, it was only a matter of time before the seniority dispute grew into an issue which the company could no longer afford to ignore, making it quite predictable that the company would have to step in and do something about.
To our fellow pilots on the East: Think long and hard about what is really transpiring and what the outcomes might be (and how long it has taken and has yet to take). Your livelihood, your family’s fortunes, and your own career depends on it.
Sincerely,
Leonidas, LLC
www.cactuspilot.com
When we last spoke of the company’s Declaratory Action, one of the filings we discussed was the company’s motion to dismiss USAPA’s counterclaim (Doc. 98). After Judge Silver denied USAPA’s motion to have the company’s entire Declaratory Action dismissed (see Judge Silver’s order, Doc. 85), USAPA was forced to file their response to the company’s complaint (Doc. 1). Rolled into USAPA’s response (Doc. 88), was a counterclaim against the company which essentially asked Judge Silver to grant the company’s third claim for relief – that irrespective of whether a Nicolau or non-Nicolau seniority list is used, that no liability will attach to the company. The company then asked Judge Silver to dismiss USAPA’s counterclaim because USAPA failed to join the West pilots as a necessary party (citing Rule 19 of the Federal Rules of Civil Procedure). USAPA responds (see Doc 99 ) by arguing that the company is wrong because the West is already a party to the lawsuit, and therefore the West need not be joined under Rule 19. So, the issue between USAPA and the company centered on the distinction between whether Rule 19 required an existing party to a suit must be joined on an individual claim. USAPA, says no, which is consistent with their history of trying to believe that the West does not exist and therefore has no individual legal standing to assert their rights in a court of law. The company explains why (Doc 102 ) USAPA is wrong:
“EEOC v.Peabody Western Coal, 400 F.3d 774 (9th Cir. 2005), on which USAPA places primary reliance, addressed a necessary party (the Navajo Nation) against whom the plaintiff could not assert a direct cause of action. There is no such problem here: USAPA’s Counter- Claim for declaratory judgment can be asserted directly against the West Pilots. Moreover, the eventual outcome of the EEOC v. Peabody Western Coal litigation was that the Navajo Nation had to be (and in fact was) named as a defendant on the claim at issue rather than merely being present in the lawsuit in some other capacity—the exact opposite of the result sought by USAPA with respect to the West Pilots.” [Doc. 102, Pg. 2]
Pay particular attention to Footnote 2 on the same page (our emphasis is added):
“In EEOC v. Peabody Western Coal, 400 F.3d at 780, the Ninth Circuit held generally that the Navajo Nation was a necessary party under Rule 19, but did not specify precisely how the Navajo Nation should be joined in the litigation given that the EEOC could not assert a direct claim against it. A subsequent appeal in the same case, which USAPA fails to cite, clarifies the matter. See EEOC v. Peabody Western Coal, 610 F.3d 1070 (9th Cir. 2010). On remand from the original appeal, the EEOC named the Navajo Nation as a defendant on its Title VII claim. The district court dismissed the Nation from the lawsuit on the ground that it could not be sued under Title VII. Id. at 1078. The Ninth Circuit reversed, and held that the Navajo Nation was a proper defendant. Id. at 1080.” [Doc. 102, Pg. 2, FN2]
Peabody is a complex case with a long history in the District Court and the Ninth Circuit, but if you care to read the latest opinion which the company cites (and USAPA conveniently fails to cite), you can download it here: http://caselaw.findlaw.com/us-9th-circuit/1529059.html
Finally, the company rounds out their argument by noting that USAPA’s counterclaim fails on its face:
“USAPA’s Counter- Claim is for a declaratory judgment to the effect that “US Airways would not be liable” to any pilot employed by US Airways (which includes the West Pilots) if it were to agree to a collective bargaining agreement with USAPA that does not implement the Nicolau Award. (Doc. No. 88 at 20 ¶ 67 (emphasis added). To state a claim under the Declaratory Judgment Act, however, USAPA must establish that “there is a substantial controversy between parties having adverse legal interests, and the controversy is of sufficient immediacy and reality to warrant declaratory relief.” Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir. 1990) (emphasis added). US Airways is not adverse to USAPA with respect to a declaration of US Airways’ nonliability. The West Pilots are. Thus, the West Pilots are not merely necessary parties to this action; they are necessary parties to USAPA’s Counter-Claim.” (Doc. 102, Pg. 3)
Notwithstanding the obvious defect in USAPA’s counterclaim as stated immediately above, our point is this: There is absolutely no excuse to improperly cite holdings from case authority, either by not citing the latest authority, or by flagrantly arguing that a holding means something wholly contrary to what the plain text says. USAPA manages to commit both infractions in Doc. 99. USAPA does not cite to the latest Peabody authority, nor does USAPA disclose to the tribunal the adverse holding of Peabody to USAPA’s argument. We call your attention to this now for several reasons. One, there is a long history of USAPA doing this, which was first demonstrated throughout its campaign to replace ALPA. USAPA repeatedly and grossly embellished the legal efficacy of its DOH pursuit. We saw it again throughout the Addington proceedings when the clear holdings of case law were routinely perverted and argued well out of proper context. Judge Wake routinely admonished USAPA for this, and it appears that this practice will continue throughout these proceedings.
Secondly, the principal-agent relationship is a special relationship which demands and deserves the highest level of honesty as to what the truly law is, and how that translates into the client achieving their goals. If any East pilots are reading this (and we know many do), we ask you to reflect on the last three-and-a-half years of USAPA representation, and measure what you have been told all along against where we are today as a pilot group. Read the latest filing in Judge Silver’s court by the company and ask yourself how your legal bargaining agent can be telling you the truth if they can’t even cite the holdings of case law correctly. Think about the duty you are owed by your legal representatives to be honest with you, and ask yourself how that duty is being fulfilled when your bargaining agent fails to be candid with tribunals.
There is a reason why East pilots remain at the absolute bottom of the industry and why negotiations are stalled. It is the same reason why pilot unity is nonexistent, and it is the same reason why Cleary exhorts blatant defiance of the new lanyard policy but then promptly reverses course. It is the same reason why USAPA now stares down the business end of a legal shotgun in the company’s injunction action. All one needs to do is read the deceptive arguments contained within Doc. 99 to understand why life for the average line pilot is fraught with frustration, anger and despair.
The path to achieving a new contract is clearly defined in Section 6 of the RLA. While the current USAPA leadership accuses the company for creating obstacles to an improved contract, it is obvious to everyone else that USAPA's insistence that Section 22 be renegotiated is the primary roadblock. USAPA's position on the seniority matter is unprecedented in the history of the Railway Labor Act, as the combined seniority list at issue was the product of a mutually agreed-to binding arbitration! For three-and- a- half years now, this approach has proven entirely fruitless. The angst felt by the East rank-and-file is understandable, but taking it out on the company in the form of an illegal job action is not the answer. The blatant effort of Cleary, Kubic and much of USAPA's leadership to harvest this rage and channel it into an illegal job action that jeopardizes the union's existence, harms the company, and puts individual pilots at risk of termination is reprehensible.
As always, we encourage every pilot to download and read all of the filings in all of the ongoing litigation, with extra emphasis on the company's injunction casethis week. We are not rooting for the company here, but pay particular attention to the sixty-nine page report of the company’s expert witness, Dr. Darin Lee, who received his doctorate in economics from Brown University. Consider the scope and detail of the company data presented in Dr. Lee’s report, and consider the time, money and effort that management has invested in building the mountain of evidence which is soon to be argued before Judge Conrad in North Carolina. While the PHX based pilots have been operating in a “business as usual” fashion, if the company's data is to be believed, it is clear that the pilots from the other bases have not. What is most revealing, however, is that if all East pilots were really “On Board,” the numbers would be far more disparate as between East and West. Even with the very best efforts of Cleary's “true believers,” it is obvious that his real support has dwindled to a relative handful of malcontents. Those malcontents probably take pride in Cleary's recent statement calling superficial union symbols “Spent Cartridges of the Battlefield.” Spent cartridges . . . give us all a break, Mike.
We are now to the point where the collision between reality and USAPA’s spin can no longer be masked by the USAPA Minister of Propaganda, Scott Theuer. There is only one way out for this pilot group: HONESTY - honesty about the facts leading up to our present situation, honesty about the legal obligations of the bargaining agent to fairly represent all of its members, and honesty about how to achieve the goals set for Section 6 negotiations within the letter of the law. We as a pilot group must admit that seniority was never just an intra-union dispute. Under the radical leadership of Cleary, it was only a matter of time before the seniority dispute grew into an issue which the company could no longer afford to ignore, making it quite predictable that the company would have to step in and do something about.
To our fellow pilots on the East: Think long and hard about what is really transpiring and what the outcomes might be (and how long it has taken and has yet to take). Your livelihood, your family’s fortunes, and your own career depends on it.
Sincerely,
Leonidas, LLC
www.cactuspilot.com
