What a bunch of hooey. Has a contract been signed, ratified, huh?
There is and always has been big east money behind this company. From banking to investing to credit card companies, as well as aircraft and equipment leasing. Although not 'too big to fail', can you imagine the financial ramifications of this company ceasing operations and shutting down? Why do you think it has existed, sometimes on a wish and a prayer with little money in the bank, so long?
The contract at issue is the transition agreement. The company spells that out clearly in its filing.
Ripeness considers hardship to parties as well as to the public. US Airways is asking for a decision in its declaratory action because it fears harm if it does the wrong thing. The company also makes the argument that the public interest is involved in getting a decision on whether using a non-Nicolau list for Section 22 constitutes an Unfair Labor Practice. Finally, USAPA needs to know that determination as well, although I suspect they aren't anxious to hear the result, especially if its Judge Wake making the call. USAPA's plan all along was not to win, but to get a contract and run out the clock against the West pilots. The last thing you/USAPA wants is to have a ripe determination of whether the Nicolau is binding. USAPA might be free to negotiate on behalf of its members (under the pain of a ripe DFR if it does the wrong thing and DOH was determined to be wrong by a unanimous jury, but I digress). The uncomfortable reality for you/USAPA is that they entered into a contract with the company via the transition agreement. That TA called for Section 22 to be determined by an arbitrator. Said arbitrator rendered his decision, was offered by your union and accepted by the company. Signed, sealed and delivered. Contract performance is complete.
Rule 60 b. USAPA isn't going to like this one. The company has fixed the "ripeness" issue for AOL
And for AWA it would have been "Project Zanzibar" how soon they forget!!
You're just starting to figure out that there is a lot more at play here than just a DFR against a union. That was Addington. You also have the company involved via the transition agreement and a future hybrid DFR claim. The reason the company wants to know what it can do is because an Unfair Labor Practice mimics a DFR in practice. So if something is a ULP, it's going to be a DFR and vice versa. Of course, the company cannot commit a DFR breach but a union sure can. As a contracting party, the union can also commit an Unfair Labor Practice. What the company's declaratory action should be telling everyone on the East that you just can't proffer a change in Section 22 as if you were negotiating crew meals. It took a jury a matter of minutes to decide that DOH is a DFR. Ergo, DOH can also be considered an Unfair Labor Practice which is exactly what the company wants a judge to determine. Phoenix has it all wrong - the signatories to a contract can agree to change, but there can exist third party beneficiaries which limit or eliminate the freedom to negotiate. That is exactly what is at play here. The West attorneys outlined this legal claim in the response to the company's motion to dismiss. Go ahead and pull it up and read it, because Dr. Jacob's explanation of the hybrid DFR claim is exactly what's driving the company's declaratory action now. You're free to keep your head buried in the sand, but sooner or later enough on the East will wonder why they are still on LOA 93. The Nic is not going to go away - ever. It can't. All we had to do on the West was assert out claim. We did, and now it's playing out as we thought. It's unfortunate Tashima and Graber got it so wrong, but even still there's the company's self-interest which we knew would rear it's head at some point. Even beyond the company, DFR II lurks out there. SCOTUS is minimal investment and worth the effort to get the bad law created by Tashima and Graber reversed. Think of the SCOTUS appeal as a public service AOL is doing for future DFR litigants.
The geographical location of the investors is irrelevant All of that money was sitting on the sidelines, not going into US Airways until Parker came along. The fact that people with money had to come in and bail your ass out again shows that any expectations you had just prior to the merger were misguided, at best.
