PHX Domicile Update
The DJ keeps spinnin'
By now you should have either heard about or seen the May Crew News video from PHX. After six years of this miserably failed merger resulting from a total lack of leadership, it should be painfully obvious to even the most apathetic among us that the current situation is unsustainable. While management pretends that all is well and acts like US Airways could continue in its present state indefinitely (or be at the center of yet another merger), we will say again, that after six years and counting, THE CURRENT CONDITIONS AT US AIRWAYS ARE UNSUSTAINABLE!
Pilots are a unique breed of people that are task and goal oriented men and women of action who possess an innate need to accomplish their objectives in a timely manner. Pilots do not do well with uncertainty and are not comfortable enduring multi-year legal battles. The only certainty that we seem to have with the seniority battle is uncertainty. Ironically, the arbitration was supposed to avoid interminable uncertainty by utilizing a third party to settle this dispute between the two pilot groups in the first place.
Watch the latest PHX Crews News carefully and notice how Doug Parker, with the wave of his hand, tries to deflect any responsibility for this mess and instead attempts to blame the "warring" pilots. He earnestly sought to sell himself as the "innocent victim" in our seniority soap opera. Poor Parker, the unfortunate soul playing the injured party said that he was "forced" to file a Declaratory Judgment (DJ). This will allow the court to answer the question that he has been too afraid to answer himself. We did not count how many times he referenced the DJ, but it was almost as many times as he tried to denied collusion.
After hearing all of this, we figured it would be a good idea to examine the three paths the company DJ could take so you can decide if the DJ is a viable option. This will help to answer the question: Is Mr. Parker being sincere, or just hiding behind his lawyers?
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The company filed its Declaratory Judgment (or "diversion," depending or your perspective) in July 2010. The stated reason was to expedite the contract process by getting a useful and tangible answer from the court regarding the company's obligation to use the arbitrated list. Clearly, the Ninth Circuit's ruling in Addington did not give the company the answer it needed. In what can now be called the ultimate understatement, Parker stated that it might take "up to a year" to get an answer in the DJ while speaking at a Crew News held in CLT shortly after the announcement of US Airways' new litigation strategy. That statement did not go over too well then, as one of the pilots in attendance angrily asked if Parker thought this pilot group would sit around for a year while this went to court. As it turns out, we have almost waited a year so far and it seems we will all be forced to wait it out together for much longer still. Over ten months have already passed now, yet USAPA's "Motion to Dismiss" has not even been ruled on.
That's right, so far Judge Silver hasn't even ruled on any pre-trial motions. It is not as if the wheels of justice have ever turned quickly, but the Arizona Federal District Court is more backed up than usual for a couple reasons. The tragic shooting in Tucson not only wounded Congresswoman Gabrielle Giffords, but killed many others; among which was Judge Roll- the Chief Justice of the Arizona District Court. Judge Roll was then replaced as the Chief Justice by Judge Silver. In addition to already being short of judges, this further exacerbated the problem of case backlogs. Criminal cases are heard first, so questions such as DJ's go to the bottom of the pile. More than ten months after filing and three months after the initial hearing, we still do not know if Judge Silver is going to dismiss the action (as requested by USAPA) or hear the case as advocated by the company and the PHX pilots.
Here is where we can make it interesting and maybe get some company skin in the game.
Mr. Parker: It is our opinion that Judge Silver will not rule on the motion to dismiss until sometime in 2012 (or at least very near the end of 2011). If you have a different opinion and still believe your one-year prediction, then we will wager two months of our "on time" bonus money against two months of your "on time" bonus.
Do we have a bet?
On a more serious note, we would like to provide a limited analysis of the possible directions the company DJ could take from here:
Path One:
Judge Silver decides to dismiss the DJ sometime in 2012. The company has already announced that it will appeal to the Ninth Circuit if it doesn't get a solid answer. A dismissal would not meet the company's stated requirements, so it is likely that it would be appealed. From experience, we know that process could take at least one year, if it doesn't go to the bottom of the pile like at the District Court. If USAPA's dismissal is granted AND the Ninth upholds the dismissal, we would be one and half years (AT LEAST) from the exact situation we are in now- without a court answer. This would leave Doug Parker to make a decision that he could actually make today. The difference is only that he will have no excuse and nowhere to hide at that time.
Total delay from the beginning of the merger: 7.5-8 years.
That is just for the seniority issue, as we will still have the rest of the contract to negotiate because we clearly can't negotiate a contract without seniority! The big wheel keeps on spinnin'
Path Two:
Sometime in 2012, Judge Silver rules against USAPA's Motion to Dismiss, and agrees to hear the case. We can reasonably estimate that it will take AT LEAST a year for Judge Silver to put this case on her docket. This doesn't account for any delay motions or discovery.
Time needed since the beginning of the merger just to get to trial: 7.5-8 years
Path Two, Option A:
Judge Silver hears the case in 2013. She rules that the company must use the Nicolau award. USAPA will most certainly appeal that ruling to the Ninth Circuit. Again, we estimate that it will take AT LEAST another year to hear the appeal. If the Ninth upholds the ruling we will expect USAPA to appeal to the Supreme Court. This too can take considerable time. Another possibility would be that the Ninth Circuit kicks the case back to the District Court for "further work." How long could that take?
Total delay from the beginning of the merger to decide seniority: 8-10 years
Path 2, Option B:
This would be Doug's worse imaginable outcome. Judge Silver hears the case and decides the company is not required to use the Nicolau arbitrated award. It is unlikely that the company would appeal, but they could. The company has stated in court that they do not have a negotiating position on seniority, so it stands to reason that they would have to develop one. How long would that take? We do not know, but it certainly means more delay. This puts the company in the position of deciding fairness, yet through this entire failed merger Doug has been claiming neutrality. What happens next? Do the east managers sit down at the table with east pilots only, east and west pilots, or west pilots only? Since there are no west pilots on the NAC or Merger Committees, it is more than likely that only east pilots will determine what the seniority list would be. We know USAPA is constitutionally obligated to present DOH, but what will the company present? Will it be the Nicolau since that is the list the company has accepted? Will they finally accept DOH? Will the company present its own creation, perhaps a hybrid list of the two? Will the company propose its own set of fences, restrictions and conditions? We do know that whatever the company comes up with, it is going to be financially beneficial to them, and certainly not to the pilots. How long will it take to work out a negotiated list and acceptable conditions and restrictions (if that is even possible)?
Total delay from the beginning of the merger to decide seniority: 9-? Years.
At the end of option B, the West pilots would be presented with a seniority list that we likely had no input in the creation of, and in any case would probably not be the Nicolau Award. So, standing at the end of the company DJ and a negotiated seniority list will be the West pilots with an "unquestionably ripe" DFR lawsuit. This starts the legal process all over again raising uncertainty about the newly negotiated seniority list, with the possibility of an injunction that might prevent the contract from being implemented. That could mean no pay raise or any of the other needed contractual improvements for anyone while the DFR process runs its course again.
Total delay from the time of the merger to decide seniority: 10-20 years.
That big old wheel keeps spinnin'
These figures represent realistic estimates of the time required only to settle what should have been settled in 2007- an integrated seniority list. How long will it take to get a contract after we have a seniority list?
Does management really think that these two separate "warring" pilots groups will maintain this operation as it is indefinitely and without disintegrating in the next 1.5 -10 years? Does anyone in management think that a delay like that will improve the attitude and motivation of these two "warring" pilot groups? Does anyone, pilot or management, believe that it is reasonable to ask (or even think about asking) this pilot group to wait 8-15 years after the merger announcement to gain any contractual benefit? Does anyone think that US Airways will continue to operate for the next 1.5-10 years in this UNSUSTAINABLE condition? Does management really believe this is good management?
That big old wheel keeps on spinning. Unfortunately, Parker is hiding behind his DJ (whether or not it is merely a "delay tactic," or a legitimate legal concern) and it may ultimately crush the airline if he does not remove the uncertainty of the seniority issue and find an answer in 2011. Otherwise, he and all of us are going to be looking for a new job because this place will not be worth working for or saving.
This all could have been settled two years ago when the company was enjoined with the Addington case, but the company begged Judge Wake to release them instead. During the appeal to the Ninth, if US Airways was so concerned about getting an answer, then management could easily have filed an "Amicus Brief" and told the Court of Appeals that they needed clarity in order to move forward. Instead they walked away from their leadership roles and now two-years later they want the court to run their business for them. The same court that called the company a "Johnny come lately" when bringing this DJ into judge Silver's court. The same judge that told Mr. Siegel:
"But you know how you could avoid being sued by the West Pilots."
Spin the wheel and place your bets. What year do you think we will finally get a new contract?
2012
2013
2014
2015**
2016**
2017**
2018**
2019**
2020**
We know it is not going to be 2011.
** There is a high probability that this airline will collapses without a new contract in these years, so your wager will pay double if you win.
Sincerely,
David Braid
Eric Ferguson
Roger Velez
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Late Breaking News:
This update had been in the works for several days when this latest development occurred. On Friday, May 27th, USAPA filed yet another lawsuit. This time, USAPA filed a "Complaint for Declaratory and Injunctive Relief" in the Federal District Court of Eastern New York. A conference call was scheduled for Saturday morning, May 28th, but that call was canceled and postponed to a later date due to "technical difficulties." It appears that the primary topic of the canceled call was to be the President's briefing relating to his filing of this new lawsuit against US Airways.
Your PHX representatives, and to our knowledge, no other BPR members were aware of this lawsuit. The BPR was advised of this major undertaking just minutes prior to the rest of the pilot group. We have not even had much of an opportunity to analyze the lawsuit or contemplate the ramifications thereof. We do believe that having the President alone (as far as we know) take unilateral action of this magnitude is not the way this Union was designed to operate. At this point, your reps have many more questions than answers. As we learn more we will let you know what we can.
Make no mistake; this is a huge event that could change the game again. Since the Board was not involved in the decision making, we have been unable to ask questions of the lawyers or the President who made this decision until after the fact. We have not yet explored the ramifications and consequences of this filing which could result in millions of dollars in legal fees and was made without prior board approval. We do not know if this will delay a contract and the company DJ further, or whether it might get Judge Silver's attention and cause her to move faster on the company DJ. Will this new USAPA lawsuit be consolidated with the company DJ and moved to Arizona? It would seem that anything is possible, and we can only hope that Mike Cleary carefully considered all factors before committing union resources to this new path without the BPR's, (and ultimately the line pilots') debate, vote or approval.
The timing is very much an unknown, but we still believe that our timeline is valid. It will take anywhere between 7.5 and 15 years from the beginning of our merger until we settle the seniority dispute and obtain a contract. However long it takes, it will undoubtedly result in a new world record! Congratulations US Airways management and pilots!