Speaking of USAPA's spin machine, here's Cleary version:
June 26, 2009
Fellow pilots:
On Thursday, June 25, 2009, Judge Wake issued a draft injunctive order in the Addington matter and requested that the parties submit their comments no later than Tuesday, June 30, 2009.
Notably, the draft injunctive order does not provide the immediate relief that the plaintiffs sought in terms the shifting of flying from East to West operations. Similarly, it does not incorporate the plaintiffs' request that East pilots be restrained from filing grievances in the event that the Company were to violate Transition Agreements operational restrictions during the period of Separate Operations.
As currently drafted, the injunctive order would compel USAPA to negotiate toward a single collective bargaining agreement incorporating the Nicolau Award and would expressly forbid USAPA from negotiating separate contracts for the two pilot groups.
USAPA will submit its comments to the court by the June 30 deadline. These comments will be posted on the USAPA website for your review. Regardless of the final form of the injunctive language, USAPA will expeditiously proceed with its appeal to the Ninth Circuit. We will comment more specifically when the injunctive order is not in a proposed condition.
In the interim, we ask all pilots to act professionally and with restraint as we move carefully through the process to protect all US Airways pilots' rights.
Safety first.
Mike Cleary
President
And now for a bit of reality:
Special Update - Judge Wake Issues Proposed Injunction
Judge Wake just published an order which contains the proposed language for an injunction against USAPA. This draft language appears to be a comprehensive injunction which will enjoin USAPA from any action not consistent with the terms of the Nicolau Arbitration. Again, this is a proposed order which means the final order can deviate from what is contained in this order. Nevertheless, we feel it is safe to use this proposed order as good approximation of what the final order will look like. Today's order reads:
The Court has composed the following draft language for the injunction order against USAPA in this case. This language is published to the parties for any comments or objections they wish to make before the order is entered.
In accord with the foregoing, and the entire record in this action, it is hereby ordered that Defendant USAPA and its officers, committees, representatives, and agents shall immediately, and in good faith, make all reasonable efforts to negotiate and implement a single collective bargaining agreement with US Airways that will implement the Nicolau Award seniority proposal unmodified, according to its terms. Defendant USAPA and its officers, committees, representatives, and agents shall immediately, and in good faith, make all reasonable efforts to support and defend the seniority rights provided by or arising from the Nicolau Award in negotiations with US Airways. Defendant USAPA shall not negotiate for separate collective bargaining agreements for the separate pilot groups, but shall rather negotiate for a single collective bargaining agreement that incorporates the Nicolau Award.
The Court retains jurisdiction to modify or dissolve this order upon motion of any party.
IT IS THEREFORE ORDERED that counsel for both parties may submit any comments and objections relating to the Court’s proposed injunction language on or before June 30, 2009.
DATED this 25th day of June, 2009.
Clearly this language would be very restrictive upon USAPA as they would risk being held in contempt of court should they deviate from the spirit and intent of the Nicolau Arbitration. That translates into a prohibition against diluting the Nicolau Arbitration via contract sections other than 22. It also means Section 6 negotiations will not be permitted. What's more, it appears that the Court is not inclined to allow some sort of "negotiation" of the Nicolau Arbitration as the Court states in very plain language that USAPA must negotiate towards one end: a joint contract that includes the Nicolau Award. In other words, no Wye River II, no more stalling, and no more excuses backed by flim-flam legal theories.
Also of note, the USAPA spin machine just can't help itself from taking the truth and twisting into unrecognizable form. This time USAPA is trying to spin the voluntary withdrawal of both of the plaintiff arbitrations as something of a victory for USAPA. First off, we (the plaintiff class) have just finished a very important part of our litigation against USAPA and as can be seen from the above order, that litigation was quite successful. The unfortunate part is that the cost of this litigation was increased by nearly 100% due to the over-litigation coming from USAPA. Although we are relishing our victory in the federal district court, the financing of our effort is not enough to pay for all of this litigation. Secondly, one of the arbitrations was very similar to USAPA's TA9 grievance; recall that TA9 involved the furloughing out of seniority. The difference between our grievance and that of USAPA was that USAPA only argued that the 98 or so new hires (post merger) constituted the "third list." The problem for us was that if USAPA lost their TA9 grievance, then we would be handicapped going into our grievance as we would be arguing before the very same arbitrator. How could Arbitrator Bloch find that the 98 newhires need not be furloughed prior to West pilots (ie USAPA's grievance), but that the CEL pilots and the East pilots below Dave O'Dell should be furloughed? Once USAPA lost their TA9 grievance, that is exactly what we would have to argue again before we got to our grievance. So when they lost, our chance of success diminished as our attorneys would have to undo the poor performance by USAPA legal, get Arbitrator Bloch to reverse his earlier decision on TA9, and then convince him to take the remedy several steps further. Our attorneys are nothing short of all star caliber and although we have the greatest of confidence in their skills, this situation was sizing up to be not worth the cost, even if we could afford to litigate these grievances. Hence, we withdrew both arbitrations.
USAPA's claim that we had no chance of succeeding is not telling the full story. What really occurred with the arbitrations is that USAPA legal has once again let down all US Airways pilots as TA9 should have been an easy win against the company. But to Cleary and his gang running USAPA, the only adversary is apparently the West pilots - their loss in TA9 and our forfeiture of an arbitration against the company is evidently a victory for that gang. What Cleary wants all US Airways pilots to ignore is that the only entity which USAPA benefits is the company as they are making out like bandits. If this crack legal team can't win at TA9, then how on Earth will they win the snapback grievance? What is now painfully obvious to anyone following the AAA-AWA saga is that the Cleary regime is the worst thing that could ever happen to any pilot group. With today's proposed order, we are witnessing the unfolding of another loss for the Cleary-run USAPA.
What this means for all US Airways pilots is that this seniority saga is quickly coming to a resolution. When the final order is published we will be able to speak without condition, but for now we will just say that the light is at the end of the tunnel for all of us, East and West. Once this seniority dispute is over, we need to work together to secure the industry standard pay and benefits which our colleagues at every other major airline enjoy. This can only be done by getting as many rational minded pilots to become members in good standing and then throw out the cadre of fools who are responsible for wreaking great havoc in all of our lives. The last two years have been a tragic waste of time, money and resources.
We want to remind readers that the above quoted order is not a final order. Rather, Judge Wake is asking for input as to what he thinks the final injunctive order should look like. You might recall that he followed the same practice with the jury instructions: published the proposed instructions, asked for attorney input, and then ruled. The final product then looked very similar to the proposed jury instructions, and we would wager that the final injunction language will be very close to what was proposed today.
Overall we are quite pleased with the proposed language of the injunction against USAPA.The essential purpose for starting this litigation was to prevent the dilution of the Nicolau Arbitration, let alone the wholesale destruction of West pilots' careers, which is exactly what USAPA's DOH scheme would have accomplished. A comprehensive remedy similar to what Judge Wake is proposing is exactly what we seek to stop the Cleary-run USAPA. Keep in mind that we are only finished with the first half of this litigation. The fight is far from over as we must defend the Addington verdict on appeal, plus we are set to go to a second trial in August to recover monetary damages. We have received a welcomed bump in donations following the Addington verdict, but we want to remind all pilots that this litigation will require the continued support from this pilot group. The percentage of pilots who have not donated at least $500 is dwindling fast and we anticipate having more than 70% of the pilots at the Bronze level or above in the near future. Your contributions are what keep our legal team fighting. We as a pilot group have made amazing gains against the attempted theft of our careers by Bradford and Cleary, but our battle if far from over. How far we go and how much we succeed as a group depends upon how many West pilots commit financially to securing our legal rights.
