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But the fundamental truth that the Nicolau Award is the only fair and equitable starting point for this integration becomes an unassailable one when it is understood that it was through unjustified and unlawful acts that the East pilots (acting through USAPA) succeeded in preventing implementation of the Nicolau Award before now. Specifically, even though US Airways formally accepted the Nicolau list, Attachment 11 (12/19/07 Letter), USAPA – acting for the East pilots – nonetheless prevented the list from being implemented by refusing to reach a new US Airways JCBA prior to the US Airways-American merger – thereby exploiting the terms of the Transition Agreement that required the execution of a JCBA before the Company- accepted Nicolau list could be implemented. 6
In this respect, the Ninth Circuit Court of Appeal’s June 26, 2015 decision in Addington is significant because it removes any pretense that the dispute between East and West pilots since the Nicolau Award is simply a messy conflict between two groups regarding an issue about which reasonable minds could disagree. Rather, the truth, as the Court of Appeals conclusively found, is that the anti-Nicolau Award position espoused by the East pilots is and has always been baseless, and that the West pilots have been the victims of an eight-year campaign of illegal tyranny by the numerically-superior East pilots, carried out for most of that time under the auspices of USAPA. The Ninth Circuit did not mince words: “[T]he East Pilots repudiated their promise to be bound by the outcome of the agreed-upon process” that culminated in the Nicolau Award, Attachment 20 (Addington Opinion) at 41, and “[w]hen the East Pilots did not get the outcome they wanted, they simply dumped the rules and found a new rulemaker – USAPA – that they could control.” The Court elaborated: “USAPA’s aim to benefit the East Pilots at the expense of the West Pilots is no longer in any doubt.” Id. at 43. As the Court so graphically put it, USAPA’s “genetic commitment to a date-of-hire principle violate[d] its duty of fair representation.” Id. at 44.
USAPA’s unlawful course of conduct has had significant consequences for the shape of this proceeding as well. At a time when the West pilots were beholden to USAPA as their certified representative, USAPA negotiated the Memorandum of Understanding (“MOU”) (Attachment 21) and the Protocol Agreement (Attachment 1) that provide the framework for this proceeding. That framework included two false assumptions specifically bargained for by USAPA to advance the interests of the East pilots at the expense of the West pilots: first, that the MOU was not itself a JCBA that would trigger the implementation of the Nicolau Award under the Transition Agreement (a provision bargained for by USAPA in breach of its duty of fair representation, the Ninth Circuit specifically found, Attachment 20 (Addington Opinion) 49), and, second, the assumption that there were “three seniority lists in effect” at the two merging airlines as of December 9, 2013, and that those three lists are due to be merged in this proceeding. See Attachment 1 (Protocol Agreement) at ¶ 2.b.7 As a result, the West pilots have been placed in a position where they “must endure the direct and immediate hardship of fighting on two fronts,” that is, they “not only must . . . advocate for the seniority interests of US Airways pilots generally in the SLI proceedings, but they must also advocate the Nicolau Award vis-à-vis the date-of-hire seniority scheme that the East Pilots will present.” Attachment 20 (Addington Opinion) at 29-30.
The West Committee wants the SLI proceedings to be concluded as expeditiously as possible, and, to that end, we are prepared to begin our analysis, formally, with the fiction established under the MOU and Protocol Agreement that there are three lists to be integrated – an East list, a West list and a legacy American list. But in the wake of the Addington decision it is now manifest that any method of merging the East and West lists other than that contained in the Nicolau Award would extend and permanently codify the East pilot’s eight-year illegal campaign to deny the West pilots their right to work under the ISL created by Arbitrator Nicolau

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