Originally Posted by 70Espada (Post 1556840)

Well, that's your opinion and in fairness I did ask you to comment. Let me rephrase by asking for an answer. The question was posed in the quote.

Originally Posted by cactiboss (Post 1556867)

Our legal team is who interpreted it for us and AOL update is accurate on what the attorneys said. Now this doesn't mean that east pilots may not participate, only that usapa as a legal entity may not.

Originally Posted by R57 relay (Post 1556872)

Again, keep on following what your legal team has said. They have done a bang up job for you so far! A friend of mine summarized it nicely elsewhere, let me share his work.

Plaintiffs Amended Complaint Doc 134:


I. Claim One: Breach of the Duty of Fair Representation
96. Plaintiffs re-allege each and every allegation set forth above as
if fully set forth herein.
97. Pursuant to the duty of fair representation, USAPA must have a
legitimate union purpose to use anything other than the Nicolau Award
list to integrate East Pilots and West Pilots.



98. USAPA does not have a legitimate union purpose to use
anything other than the Nicolau Award list to integrate East Pilots and
West Pilots.
99. USAPA, therefore, breached the duty of fair representation by
entering into the MOU because the MOU abandons a duty to treat the
Nicolau Award as final and binding.
100. Plaintiffs are entitled to a declaratory judgment to that effect
and to other remedy sought below.

Judge said: "IT IS FURTHER ORDERED the Clerk of Court is directed to enter judgment in
favor of Defendant US Airline Pilots Association on Count I"


II. Claim Two: Breach of Transition Agreement by US Airways
101. Plaintiffs re-allege each and every allegation set forth above as
if fully set forth herein and reallege this Claim, which was dismissed by
the Court [Doc. 122], solely to preserve their rights to appeal that ruling.
102. The Transition Agreement had an implied covenant of good
faith and fair dealing.
103. The Transition Agreement envisioned a “Single Agreement” that
would be made by US Airways and USAPA that would replace material
terms in the separate contracts governing the employment of the West
Pilots (the West CBA) and the East Pilots (the east CBA).
104. That implied covenant constrained the terms of the Single
Agreement such that it could not provide materially improved wages for
US Airways pilots (East and West) without also providing terms needed to
integrate pilot operations consistent with the Transition Agreement.
105. The MOU is a single agreement that provides materially
improved wages for US Airways pilots (East and West).
106. The MOU fails to provide terms needed to integrate pilot
operations.
107. The Transition Agreement requires that pilot seniority will be
implemented using to the integrated seniority list created according to
ALPA Merger Policy and accepted by US Airways – the Nicolau Award list.
108. The MOU fails to provide that pilot seniority will be
implemented using the Nicolau Award list.
109. Based on the forgoing, adopting the MOU is a breach of the
Transition Agreement implied covenant.
110. Despite vigorous protests by the West Pilots, USAPA refuses to
assert breach of the Transition Agreement implied covenant.
111. This Court, consequently, has hybrid jurisdiction to hear this
implied covenant claim that would otherwise be a minor dispute subject
to system board arbitration.
112. Plaintiffs are entitled to a declaratory judgment that the MOU is
a breach of the Transition Agreement implied covenant by US Airways.

Judge said: "IT IS FURTHER ORDERED the Clerk of Court is directed to enter judgment in
favor of US Airways, Inc. on Count II"



III. Claim Three: Attorneys’ Fees
113. Plaintiffs re-allege each and every allegation set forth above as
if fully set forth herein.
114. USAPA has several million dollars in reserve collected as dues
and agency fees from all US Airways Pilots.
115. Plaintiffs brought this action and the 2008 action and appeared
as defendants in the 2010 action to vindicate the right of all US Airways
pilots to fair representation by USAPA.
116. By obtaining the rulings in the 2008 and 2010 actions and by
prevailing in this action, Plaintiffs conferred a substantial benefit on all
US Airways Pilots.
117. Under common benefit doctrine, the expenses of achieving
those benefits should, in all fairness, be spread among all those who so
benefitted.
118. The expenses of achieving those benefits would be fairly spread
among all US Airways Pilots if paid by USAPA
119.The Court should, therefore, make an award in favor of
Plaintiffs and against USAPA for all reasonable litigation expenses,
including attorneys’ fees incurred bringing this action, incurred by
Plaintiffs in the actions noted above.

Judge said: "IT IS FURTHER ORDERED the Clerk of Court is directed to enter a judgment of dismissal without prejudice on
Count III"


IV. Claim Four: Declaratory Claim
120. Plaintiffs re-allege each and every allegation set forth above as
if fully set forth herein.
121. McCaskill-Bond provides that employees affected by an airline
merger have the right to a fair and equitable seniority integration.
122. The West Pilots are employees affected by the US Airways-
American Airlines merger.
123. In the process of obtaining a fair and equitable seniority
integration of the US Airways and American Airlines pilots that will
commence soon after AMR’s Petition of Reorganization is approved and
final (hereinafter the “MOU Seniority Integration”), which is expected to
occur within approximately the next two months, USAPA and its
representatives and counsel are bound by USAPA’s constitution to
advance a date-of-hire seniority order for US Airways pilots.
124. The West Pilots have an interest to see proper implementation
of the Nicolau Award seniority list in the course of the MOU Seniority
Integration.
125. USAPA and its representatives and counsel have an unwaivable
conflict of interest with the West Pilots in regard to seniority integration.
126. USAPA and its representatives and counsel, therefore, cannot
fairly represent the West Pilot’s interests in the course of the MOU
Seniority Integration.
127. The West Pilots contend that they have the right to fully
participate in each phase of the MOU Seniority Integration process. (Doc.
97 at 5:23 to 5:25.)
128. US Airways also contends that the West Pilots have the right to
participate fully (with counsel of their own choice) in the MOU Seniority
Integration process and that such participation will promote a more
effective process. (Doc. 98 at 1:6 to 1:10.)
129. USAPA contends that the West Pilots have no legitimate right to
participate in any phase of the Airways-American McCaskill-Bond
process. (Doc. 95 at 10:17 to 11:6.)
130. There is a substantial controversy, therefore, between the West
Pilots and USAPA as to whether the West Pilots have a right to
participate in the MOU Seniority Integration process.
131. Consequently, there is a substantial controversy, between
parties having adverse legal interests, of sufficient immediacy and reality
to warrant the issuance of a declaratory judgment.
132. The West Pilots are entitled, pursuant to 28 U.S.C. § 2201, to
an order declaring that they have party status and the right (but not the
obligation) to participate fully (with counsel of their own choice) in the
MOU Seniority Integration process.

Judge said: "IT IS FURTHER ORDERED the Clerk of Court is directed to enter judgment in
favor of Defendant US Airline Pilots Association on Count IV"

Originally Posted by cactiboss (Post 1556879)

You might be right in the end but believe me this just put the company and apa in a very bad spot, much more so than the west.....

Originally Posted by PurpleTurtle (Post 1556869)

Let's cut through all the BS and emotion. The West pilots have been donating large sums of money in hopes of getting the Nic list implemented. Name one document that affirms the Nic must be used by anyone.... I'll name you three.

1. The 2005 TA (which is by the way the only negotiated agreement to agree to ALPA merger policy for SLI), and it was itself negotiable.

2. The judgement of Judge Wake that enjoined USAPA to use the Nic.

3. The Plaintiff's most recent request for remedy asking Judge Silver to enjoin USAPA to use the Nic, based on the premise that USAPA is guilty of DFR for not using it... and in the alternative asking to be granted representational rights (but not the obligation) during the SLI process so the West themselves could advocate for the Nic.


Long ago the 9th made it clear that the courts were unable to provide judicial intervention during negotiations, and had no place or role until a new seniority list was ratified. Despite this Judge Silver allowed the company to go on an excursion with the DJ, and now several years later, without a new ratified seniority list, Jude Silver exclaims how hard her job is in this DFR trial, on the merits... because there is no new ratified seniority list. Shazam. Whoda thunk it.

Name one relevant document that requires anyone to use the Nic... Both Judge Wake and Judge Silver assumed that USAPA had to use the Nic. There will never be a successful DFR lawsuit (or even a scary threat) based on such assumption, but there will be lots of blustering and donations based on that assumption.

I have said before, when the dust settles there will be a UAL/CAL type list, the easy way or the hard way, and some will declare victory because they didn't get hosed as bad as they could have been, and others will keep donating.

Originally Posted by PurpleTurtle (Post 1556881)

No need to shed a tear for them. .

Originally Posted by 70Espada (Post 1556883)

There are no documents because you haven't yet not used the Nic. The courts though have repeatedly warned you about the dangerous ground you'll be on if you choose not to use it. They've basically told you you're free to jump off a cliff, but doing so is probably going to hurt. :) I stayed off the board last night and most of this morning because I'd never seen all you east guys so jovial, but eventually you're going to find out, well maybe not accept it though. The Nic isn't dead. You can't change the fact that it happened and it set a precedent for what a fair list between AWA and US looks like. Now I know you don't think it's fair and maybe I don't either, but from a legal stand point it was fair. USAPA has never been able to come up with an acceptable reason for not accepting it.

As for your response, that was a lot of typing and you didn't answer my question.

Originally Posted by cactiboss (Post 1556886)

what is the company/apa to do now?

Originally Posted by R57 relay (Post 1556890)

Then why the DFR? If it wasn't gone, why sue because it wasn't there?

Originally Posted by 70Espada (Post 1556896)

You're asking the wrong person. I thought after the ninth ruled we were going to have to wait until an actual combined list came out and then see what it looked like.