Merger Committee Arbitration
 

It must be fantastic to be a union attorney! These briefs (and the $ billing) just go on and on and on.

For the west, a much better showing I thought in terms of the brief itself. It felt more square to the issues.

USAPA seriously has lawyers lawyers, procedural wizards. The merits take a back seat a bit to procedure and law - I thought well done there. They really do string things together nicely, and in law the procedure can win, so that's no knock on them.

My gut - this goes very much west's way (for once).

But seriously, who has time / interest to write these briefs on these issues, I'd go nuts! I felt like they all could be summarized in 3-5 pages.

And I don't know if the composition of the west legal team changed, but this set of arguments on the west side really flowed much more smoothly.

The first in a long set of steps to get the list settled down. I'm sure more to come. Just wishing the whole thing would move along faster..

The protocol agreement has already set the course. The participants won't be be able to steer outside of that but the lawyers will make folks feel good and get paid well to do so.

USAPA's cash defending West law suits will eat up the $13M bank account that USAPA is holding. I do not expect a refund from USAPA. Just like ALPA in that respect, all the money gets spent.

I got a refund two years ago and expect another one for this year from ALPA (they almost lowered dues again but it didn't quite have the votes, too many people thought services would be cut too much)

....but yeah, I bet you will burn through all of the $13mil pretty quickly with all the lawyers. good luck.

Well that's not entirely true. There can be a valid argument made that the protocol agreement was drafted in such a way the it harms one group or rather a class of participants thus should be nullified. Now I am in no way saying that will be the approach but I would not at all be surprised if it were.

WD at AWA

I think you've hit the nail on the head.

The west's dues disgorgement claims are a stretch, USAPA former board likely has discretion. And USAPA's actual lawsuit against individual pilots feels like another total stretch... I don't see either of those really going anywhere.

I do think inside the protocol, particularly the SLI arb, the lawyers may really earn their fees. I'm not so sure with any potential JCBA arb, that seems more constrained if it gets there.

Either way, two years and it should be done.

I thought I read somewhere that per the MOU timeline, the latest that the final list can be issued is December of next year.

That's simply the deadline stipulated by the MOU. It IS possible for unforeseen circumstances to result in that deadline passing without an ISL. The way it's set up now, the arbitrators will complete the final arbitration with perhaps 6 months to orchestrate their integration award and if delayed by the present JCBA situation by a few months could still expedite their efforts at a ruling.

Should outside legal action by whomever occur, that could force delay beyond the MOU deadline date. I think APA will wave a JCBA TA over their heads by the end of next week at the latest resulting in minimal delay to the MOU process.

That's the hope.

But SLI arb can't begin until JCBA is done. JCBA was supposed to go to arb shortly after NMB certification if there was no agreement. The JCBA deadline I believe has already been voluntarily waived by company and apa.

Before that the NMB certification for single carrier and bargaining rep took a bit longer than initially expected, and USAPA was working to slow parts of that down.

So you can get a feel for how the delays may creep up.

That said, Airways was caught up with this issue before with USAPA and getting to JCBA, so there is a LOT more in the MOU to force things along. Ultimately, nothing has to go through negotiation and no agreement has to be reached, everything can be arbitrated. That let's them force timeline.

Ok.

Consider this.. The PA is presently a governing document. AOL has acknowledged as much in that they have submitted to it and made application for a west merger committee pursuant to the PA... In that they submit to the PA, they (all of us) will be required to follow all of it.

If AOL intends to repudiate the PA, when are they going to do so? And if they should ever be successful in invalidating the PA (by who's authority?) then what governing document will replace the PA (and again by whose authority will a new PA be established?). And how soon is AOL going to make all this happen, seeing that they haven't even started to do so?

I can't remember how long you have been on this board, but you need to remember that WD has never met a looney theory that he didn't adore and adopt.

You bring up a good point and one that I've wondered about. We all agreed to the PA, so does agreeing to allow the arbitration panel to decide this let them ignore the Judge Silver's legal ruling? It seems that the APA's question is framed on fairness and USAPA's on legality. What will the board have to consider?

Well, we have to remember what's good for the goose is good for the gander. Previously it was USAPA that questioned the validity and fairness of the MOU after they agreed to its provisions and then filed suit seeking BOTH declaratory and injunctive relief from its clearly stated provisions and intentions. The provisions and intentions spelled out the potential (actually intention) for the dissolution of USAPA not only at some point prior to the completion of the SLI process, but even as early as some point in the JCBA process.

USAPA filed suit that would very likely delay the MOU timeline until well after its termination, but agreement was made by the parties to avoid that. The NEW provisions require a preliminary arbitration to decide if the West is entitled to a merger committee. Considering USAPA used as a primary foundation the belief that to truly achieve a fair and equitable SLI, the provisions of McCaskill-Bond (as they interpreted) prevent anyone from dissolving their right to self-representation in the SLI process even using the TWA integration situation as their example. USAPA essentially attempted to nullify the MOU (or at least the clearly spelled out provisions that provided for their likely elimination) and so I suppose Leonidas could then too use the very same argument and interpretation of McCaskill-Bond.

As it stands now though, it would appear the West class of pilots has agreed to the arbitral process to decide if they are entitled to separate representation and if they were considering throwing their own wrench in the process just as USAPA did, they'd have to do it prior to that process. Once arbitration rules and should it go against the West, I find it difficult to see how a valid suit could be won declaring the MOU (and thus the arbitration they accepted) to be invalid and perhaps a foundation for their own claim of violation of McCaskill-Bond. Now, that's not to say Leonidas couldn't file a suit after that in the hope creating delay will force others to capitulate to their desires (at least until a judge ruled to dismiss their suit) since it worked for USAPA. In that case, all that I think would happen though would be delay until any such suit was dismissed, but it certainly wouldn't surprise me if they did that should the preliminary arbitration go against them.

When USAPA signed the MOU, it also was then a "governing document" (with CLEARLY spelled out provisions). USAPA acknowledged as much when they too signed it, but that didn't stop them from then disputing it after that when it suited their interests to do so. As such, the West could simply do the same thing, although by acceptance of a neutral process to decide any McCaskill-Bond related fairness claims, it would seem to make it MUCH more difficult to gain anything except the satisfaction of throwing their own wrench into the process to at least get delay. Considering the growth slated for AA legacy and US Airways East ops as opposed to PHX ops, that would seem to hurt them more then help them and would simply make them guilty of the same flawed logic that USAPA used to when financially shooting their toes of one at a time once a year simply to maintain control of the seniority list ankle bracelet they had during the years of dispute at US Airways prior to the AA merge.

As I've stated before, IMO the West WILL get separate representation as a result of the preliminary arbitration, but ultimately the Nic will not be used. In fact, I wouldn't be surprised to see in APA's briefs to the preliminary arbitration to include additional integration delay as a possible byproduct of denying the West representation, but without taking a stance on that.

Yes USAPA sued regarding the MOU, and in case you missed it the APA and USAPA agreed to drop the lawsuit with stipulated prejudice in favor of the PA.

If the west thinks they can invalidate the PA and replace it with something else they better quit relying on it, and get busy replacing it.:D

P.S. The west legal team is always at least two steps behind..

There is plenty of legal precedent that court orders are binding on arbitrations.

Agreed....well, kinda. The Nicolau arbitration proved an award can occur, but there are options to in effect nullify such awards using the tool of delay. But in this case, once that has occurred their options are extremely limited and all that would result is delay in the time it would take to remove their legal wrench (months, even years ?). If they were to do something prior to arbitration, they may be actually placing their best odds of relevance in jeopardy, so it's a risky move to shoot craps now on rejecting arbitration. I suppose if they were inclined to throw their own wrench, the best time would be sometime DURING the arbitration if they concluded for some reason they were losing the argument and elected to throw the delay dice and they were willing to suffer the consequences of potentially being isolated from any growth or expansion for an extended period.

I don't think I was clear. The arbitration that is now in full swing must not presume to overturn or contradict court orders (that already exist).

In addition arbitrators may not presume to formulate their own question to arbitrate... The question before the arb panel is contained in the PA, and is very precise, notwithstanding anyone's attempt to obscure it.

The west legal team has never been good at reading details, or perhaps they just like the money. To be sure, west pilots as a whole make implicit assumptions and don't care for details. The PA has set a course that they still do not understand, and when they eventually do many will simply be in denial. Think of donations and ties as consolation prizes!

A1: The arbitration panel is not at liberty to contradict courts that have ruled on identical issues.

A2: From the PA... "The Preliminary Arbitration Board shall issue an order granting or denying any such requests..." (i.e. "requests that a Merger Committee be designated to represent the interests of such pilots for purposes of this Seniority Integration Protocol."... That is the west request for a committee.)

So a straightforward reading of the PA will show that the question or issue before the arb panel is NOT whether or not APA has the authority to designate a separate committee for the West, rather the issue before the panel (as a matter of contract and law pursuant to the PA and MB) is shall the west request for a separate committee be granted or denied by the panel.

Arguments based upon other premises will be irrelevant.

Just so we're clear, are you saying your belief is that the preliminary arbitration panel has no legal right to answer any "request" by APA that THEY have the right to grant the West separate representation status and that since the ONLY question they can legally answer is whether the Arbitration panel ITSELF has that right and also since that question has (supposedly) already been answered in legal court ruling that they can't overrule (a catch-22), the West cannot legally obtain separate representational status in the preliminary arbitration ?

If so, I can see where that will go. :cool: In effect, that would mean USAPA agreed to a new process that (in their belief) is an inherent legal catch-22 that essentially invalidates the preliminary arbitration itself and I suspect that should the panel answer the "request" of the APA's ability to grant the West separate representational status in the affirmative, they will file another lawsuit (a delay wrench) claiming it violates the East's rights to McCaskill-Bond or that should the arbitration panel itself grant the West separate representational status directly, they'll file a lawsuit claiming the arbitrators illegally overstepped the scope of their abilities in doing so.

Am I reading you correctly ?

The PA is a contract.

You are asking hypothetical questions. On what do you base your premises?

On what basis ?

Well, it was just as much a contract as the MOU and that was deemed to be invalid by USAPA. It would seem there really is no such thing as "reality" in contracts and arbitrations even when reinforced by the printed word, simply different perceptions of what reality is. My original question still stands though.

Is my interpretation of your position on the West's representational abilities and the validity of the preliminary arbitration panel correct and if not, why not ?

Your hypotheticals are all over the place. If you think I said something contrary to facts or contracts or law then feel free to comment on any of that.

I don't pretend to know what the panel will do and I am not making any predictions.

Again, what is the basis for your hypotheticals?

It's a simple question and the "basis" for asking it is irrelevant just as answering a question with a question isn't an answer. OK, I'll break it down;

1. Do you believe that "the law" or the "facts" of any contracts prevents the preliminary arbitration panel from affirming APA's right to appoint a West merger committee and if so, specifically why ?

2. Do you believe that "the law" or the "facts" of any contracts prevents the preliminary arbitration panel from appointing a West merger committee unilaterally and if so, specifically why ?

These are NOT "hypothetical" questions, they are specifically relevant based to any such argument to the contrary and one that you appear to be making. In essence, if you believe the answers to one or both SPECIFIC non-hypothetical questions is "yes", then defend that assertion with specifics.

An arbitration award is effective to the extent provided for in the contract that established the arbitration. Some people may overestimate or underestimate the provisions of the PA (both the lattitude of arbitrators during the process as well as the effectiveness of the award afterward).

I won't bother to address the legal lattitude of the arb panel (If you want to assert how much they have then provide a basis for it, in the PA)..

But I will address the assumption people seem to have regarding the adequacy of the question "Does APA have the authority to establish a separate west committee for MB SLI arbitration?" That question will not resolve the west's application. It simply won't. An answer to that question does not provide an answer to the west's application for a separate committee, unless one is willing to assume the APA would follow through on its expressed intent to establish a west committee. Making assumptions about the APA might not be a good strategy (ask the TWA pilots.)

The west request must be granted or denied. None of the participants to the arb will do that.

Well, the arbitrators are there for exactly that. The question before them is whether APA has the right to appoint a West merger committee. Not coincidentally, three parties (Leonidas, AAG and APA) also believe that APA SHOULD appoint a west committee with USAPA as the minority 1 against 3.

I think the arbitrators WILL make a decision and again, that the positions of the majority in this arbitration will prevail.

Are you joking? Majority has nothing to do with it. Where have you been the last ten years? Don't you know the whole industry hates USAPA, but not as much as Judge Silver does? :D.

The PA does not establish the question before them to be about APA's authority, and even if it did, an answer to that question would not establish or prevent a west committee. The question is meaningless.

The panel will grant or deny the west's request, as the PA requires, and we will all live happily ever after with the decision.

Well, in reading the 4 parties briefs submitted earlier this week and objectively looking at their arguments and positions, the "majority" collectively makes a convincing argument (legal and otherwise) why the West should have separate representation. All I've said is that I think they will.

I'm not so sure about that part....at least not in the near-term. I suspect that in the likely event the West DOES prevail in this stage of the SLI, USAPA will respond in their usual predictable manner, by NOT "living happily ever after". I'd be surprised if they did.

The company brief has the fatal premise that the APA may grant or deny a west committee (irrespective of the MB statute). Not only false but also irrelevant. By contract the APA relinquished the decision to grant or deny the west request for a merger committee solely to the arbitration panel (and the company and USAPA joined the APA in binding themselves to that). The APA is contractually barred from granting or denying the west's request for a committee. This contractual stipulation is exactly why the PA was written and it allowed us to move past the litigation between APA and USAPA.

The APA brief inadequately suggests that the panel must assume a west committee is statutorily permissible, even required, based solely upon unproven APA discretion. Not only is the alleged APA discretion unproven and inadequate, it is also irrelevant by contractual stipulation, regardless of what discretion may have existed prior to the PA.

The West lawyers make fatal errors in both their opening and their conclusion. To start, they request the arbitration panel to assume authority to arbitrate an irrelevant question that is unsupported by the PA. And in conclusion they ask the panel to authorize the APA to appoint a west committee (rather than ask the panel to grant or deny their request for a committee, as the PA stipulates).

This is the thing lawyers live for. Being paid to engage in sophistry!

The panel is contractually authorized to grant or deny the west request for a committee for the MB SLI Arbitration, and the panel will be well aware of the basis to their decision by the time they have to make it.

Personally I think it would be really nice for the west to have their own committee.

I will not predict what decision the panel will make, but I assure you we will live happily ever after, for better or for worse. Its in the contract. ;)

We obviously interpret the briefs differently and apparently USAPA disagrees with you as well. If USAPA also believed that it would be "nice" for the West to have their own committee, there would neither be this arbitration, nor their request to have that consideration rejected by this arbitration panel as stated in their brief.

It's good to see at least one in USAPA's orbit not agree with their assertions and demands on this issue. ;)

Although I still think it won't lead to a pure Nic inclusion, I think for all concerned, it's the proper course.

Yes I agree it would be really nice for the west to have their own committee, but I didn't get paid to write as much in a bunch of thinly veiled legal mumbo jumbo, while deceiving people, hocking ties, and stacking the deck to subvert any future lawsuits by AOL.

Niceness won't rule the day.

No it won't and no you didn't get paid to do that. But, if the arbitrators rule in favor of the West, it would kinda lend at least a little credence that their argument in that respect wasn't just "thinly veiled mumbo jumbo".

Of course, I suppose in that case they could all be declared just as senile as Nicolau apparently was. :D

If.. If.. If.. Always the hypothetical. You would make a good Westie!

By now you should realize Nic was not senile (but it was a clever attempt on your part at a straw man). His award was effective to the extent of the 2005TA, no more no less.

Contracts have driven and will continue to drive the SLI participants, to the chagrin of the west, and the elation of Marty.

And you guys were getting along so well there...

Keep it up and you will have EF calling you an evil Usapian and not speaking to you.

Never met the man. My statement of Nic's supposed senility was based on USAPA's inferred or possibly even stated position that his age had something to do with his ruling, so if any straw was involved, I obtained it from USAPA's barn near Charlotte. :rolleyes: I HAVE come to understand that when it comes to any interpretations NOT consistent with USAPA's version and view of reality, it's usually considered a "hypothetical". For example, some of the provisions of the MOU were undoubtedly considered hypothetical as was Nicolau's ruling itself. ;)

It's good we can agree to disagree with civility though. I have no intention of leveling personal insults against YOU and assume unlike "others" here, you'll not respond in like kind. I expect plenty more to discuss in the future and it would be unfortunate to run out of worthy opponents to disagree with. :)

Funny, I have received multiple dues refunds from ALPA over the years.

Hypotheticals begin with "if", which you used numerous times. Please forgive me for saying you "if-ing" would make you a good west pilot... That was just way over the top and unkind. :D

The board "shall grant or deny", is not an interpretation. It's an imperative.

No hypotheticals here, only straight questions with no answers. :confused: The "if" part involves only the explanation of a "yes" answer. Bill Clinton would be proud, by the way. ;) IMO, the board will grant the APA the right to appoint a West committee and the APA will do just that. See ? taking a position isn't so hard. :)

I don't remember a single one. Maybe I've forgotten or our MEC wasn't a frugal? I certainly don't remember one after we left.

We'll see!