An interesting thought to the pilot

[nycbusdriver]

What it comes down to is whether the Nicolau crap is an intra-ALPA exercise within the purview of the Executive Council, or a legally binding contract on its own.

If it was a legally binding contract, I would think that a court of law would be able to step right in and enforce that contract. Since it appears that the only "enforcer" in sight is ALPA itself, then it would seem that ALPA has the discretion to not enforce it. That decision would have ramifications of its own, such as DFR lawsuits, but that is an entirely separate case which actually WILL be heard in a court of law.

Too bad we don't have any real contract lawyers or labor lawyers here to answer the question of just what LEGAL status the Nicolau crap has. Not ALPA bylaws...LEGAL status. I'm just curious.

And if you don't have a law degree and passed a bar exam, I'm not interested in your answer because you don't know anything more about it than I do. And that's damn little.

 

[ua767fo]

The large majority of the East pilots are ready to let the union and company implosion begin because if nothing else the US Airways pilots will likely decertify ALPA, attempt to decertify AWA ALPA, file a lawsuit, and never agree to a joint contract.

Speaking as a former AAA pilot, I would not blame the AAA East pilots at all if they burned down the fort. I'd rather burn it down then be an '88/'89 hiree junior to a probationary AWA pilot. This career is all about seniority, and to find one's self being spat on so many times in one's career can push one to the point where they just dont care. Besides, after an implosion, and some other carrier goes through hiring, those now senior AWA pilots would most likely end up junior.

Secondly, I would right now vote to decertify ALPA.....force an election,and as a group, vote in a union with a DOH merger policy....then when there is an election for collective representation, the AAA pilots would have their DOH.

I have no sympathy for junior pilots getting their ill gotten gains stripped from them..........at all.

Good luck to the EAST pilots.

Denver, CO

 

[aquagreen73s]

Speaking as a former AAA pilot, I would not blame the AAA East pilots at all if they burned down the fort. I'd rather burn it down then be an '88/'89 hiree junior to a probationary AWA pilot. This career is all about seniority, and to find one's self being spat on so many times in one's career can push one to the point where they just dont care. Besides, after an implosion, and some other carrier goes through hiring, those now senior AWA pilots would most likely end up junior.

Secondly, I would right now vote to decertify ALPA.....force an election,and as a group, vote in a union with a DOH merger policy....then when there is an election for collective representation, the AAA pilots would have their DOH.

I have no sympathy for junior pilots getting their ill gotten gains stripped from them..........at all.

Good luck to the EAST pilots.

Denver, CO

You're a UAL pilot? Yeah, sure. Well I guess then we'll go DOH on the next go-around and then you'll have all your former AAA co-workers and a lot of AWA pilots senior to you. Justice will be served then, right? I think not. Troll alert.

 

[aquagreen73s]

What it comes down to is whether the Nicolau crap is an intra-ALPA exercise within the purview of the Executive Council, or a legally binding contract on its own.

If it was a legally binding contract, I would think that a court of law would be able to step right in and enforce that contract. Since it appears that the only "enforcer" in sight is ALPA itself, then it would seem that ALPA has the discretion to not enforce it. That decision would have ramifications of its own, such as DFR lawsuits, but that is an entirely separate case which actually WILL be heard in a court of law.

Too bad we don't have any real contract lawyers or labor lawyers here to answer the question of just what LEGAL status the Nicolau crap has. Not ALPA bylaws...LEGAL status. I'm just curious.

And if you don't have a law degree and passed a bar exam, I'm not interested in your answer because you don't know anything more about it than I do. And that's damn little.

Not only contract law, but claims sounding in agency and tort law as well.

There are two ways out of a contract: (i) a recognized defense to formation or enforcement; and (ii) what's called an efficient breach. Any contract is breachable. If the consequences of a breach are less threatening than the benefits of breaching, then that's an efficient breach. Contract defenses are typcially limited to fraud, duress, mistake, unconscionability...none of which apply to National. So for them it comes down to efficient breach.

The ALPA bylaws represent the terms of the agreement between AAA, AWA and National. There is no question an enforcable contract has been formed between AWA, AAA and National (offer, acceptance, consideration), so a formation defense is out of the question. That leaves an enforcement defense and the big three there are fraud, duress and unconscionability. All three are more or less self explanatory and it's not even worth debating whether any are available because they're not.

So, with an enforceable contract, the next question is whether all conditions have been satisified such that ALPA's duty to perform is triggered. The term at center stage today is where National promised to support and defend whatever award comes from Nicolau. AWA and AAA have performed their ends of the bargain by particpating in an arbitration. Therefore, ALPA's duty to perform has been triggered and a failure to perform puts them in breach (there are no defenses available as discussed above).

The second cause of action is as you mentioned a DFR which is really a hybrid claim that lies in both agency and tort law. ALPA is acting as an agent to two principals: AAA andd AWA. It therefore owes a duty to be impartial to both principals and to avoid conflicts of interest which might arise while performing for both parties. That is precisely why they outsource the substantive decision of a seniority integration to an arbitrator; it's without a doubt the best way they can presesrve and defend their impartiality. Tinkering with the substantive award is cleary a breach of their obligation and duty of impartiality. They'd be better off sending the award back to a whole new arbitrator than ever touching an arbitration. If they could plausibly claim there was a procedural defect which necessitated a do-over, then they could conceivably defend their decision to send the matter back to another arbitrator for a do-over. But the problem then is that the weight of the evidence suggests that there were no procedural defects. As I mentioned earlier, two ALPA neturals were on the panel. They said nothing. Furthermore, AAA tendered no objections ot the process and did not object at any time when Nic was in deliberations. Finally, national never said a darned thing either: not during the process, not during deliberations, and not even after the award was published. It was only after they marched on by a 400+ person angry mob did they raise a question about the process. Hmmm....that's suspect.

Finally, we can talk about a tortious interference with a contract. This in reality would mirror a plain vanilla contract claim but the difference would be the availability of punitive and parasitic damages. On the other hand, the meat and potatoes for the AWA pilots would really be the lost benefit of the contract. The major difficulty in a contract claim is proving damages such that a court can determine what dollar amount would give the plaintiff the benefit of the bargain. In this case, however, that would not be all that hard to calculate. Plus, contract claims allow for the award of attorney's fees whereas the tort claims do not. If AWA pilots would essentially be made whole by a receiving the full contract benefit thanks to a successful contract claim, then a DFR isn't really necessary. File the claim, but the claim for AWA pilots to hang their hat on would be a contract claim IMO - the damages are sufficient and the breach is so incredibly apparent.

There's one more defense to a contract that I just thought about: failure of a condition. But as we can see from above, the arbitration is complete thus triggering ALPA's duty to perform. So put an "X" on another defense.

 

[pilot]

As I mentioned before, the EC will decide. Then either side will have recourse one way or another.

And, aquaman, if you do indeed have a law degree as your post infers, why on earth would you be wasting your time in a profession that has become so selfish and the antithesis of what Behncke and the proud men who built it up to be? These men are rolling in their graves over what ALPA has become. What fellow aviators are willing to do to each other. To the profession. To the seniority based system they fought to implement and cement into being. Read the history of ALPA.

My generation has failed these proud men. And yours cannot fathom what ALPA once was. All your legal mumbo jumbo is precisely that. It's what started our unions downfall years ago.

I don't blame you for what is going on. You guys don't even know what a strong, unified national union is. Hell, AWA's first pilots were scabs. And most of the AWA pilots either don't know or don't care. I imagine some are still there. And lawyers don't know right from wrong. Only what's legal. And there is a huge difference.

I saw a strong, unified ALPA once. Long ago. When each pilot group had respect and looked out for each other knowing their turn in the left seat would someday come.

Those days are long gone. Now it's what's best for ME and the hell with a proud profession.

Oh wait, you infer you have a law degree. That actually answers my original question.

pilot

 

[700UW]

Clue,
the East pilots could decertify ALPA, the East pilots could obtain a new union, the East pilots could file a lawsuit against ALPA, the East pilots could attempt to force a new union on the AWA pilots, and other options.
Regards,

USA320Pilot

How many times are you going to post your incorrect information to try and threaten the West pilots?

First of all the East cant decertify ALPA, under the RLA you don't decertify union representation.

Second, The west pilots would be included by the NMB in any card signing and/or election, due to the Single Carrier Status under the NMB Rules and Regulations.

Third, changing unions does not void a cba nor an arbitration award, just look at the IAM, they are enforcing the IBT AMT CBA with HP until a joint contract can be negotiated, just like the IAM is enforcing the TWU Ramp Contract till a joint contract can be negotiated.

So why must you post false rhetoric every time when you have been told over and over and over your information is false?

Once again, Don't Let the Facts get in your way!

 

[Bear96]

Too bad we don't have any real contract lawyers or labor lawyers here to answer the question of just what LEGAL status the Nicolau crap has. Not ALPA bylaws...LEGAL status. I'm just curious.

This has been dicsussed before, although with people starting new threads on the issue every five minutes those discussions would be very difficult to find.

I think aquagreen is making it more complicated than it needs to be, if you just want to consider the legal status of the Nicolau award itself.

It is an arbitration decision. (I disagree the decision it is an actual contract in its own right, as aquagreen seems to be saying -- although the agreement to go to arbitration and abide by the results would be a contract.) The bottom line is that courts give great deference to arbitrators where, as here, two parties have agreed to submit their dispute to arbitration under a specific set of rules (the merger policy) and have agreed to regard the arbitrator's decision as binding.

There are only very narrow grounds for a court to not enforce an arbitration decision, and they are mostly procedurally-based, not substantively-based. That is, East would have to show some sort of fraud or partiality by the arbitrator (or arbitrators in this case, as I understand it was a panel). Simply disagreeing with the arbitrator's interpretation of the merger policy or not liking the outcome would not be enough. Arguments for "unfairness" because DOH was not being honored should have been (and presumably were) made during the hearings, and rejeced because the merger policy on its very face does not consider DOH. Similarly, arguments that the ALPA merger policy is inherently unfair should have been made, and the policy changed if necessary, before the parties agreed to arbitration.

 

[kubotapilot]

There is one very simple reason they will void this "award" and it is / was called MidAtlantic Airways. The Embrear Divison of USAirways.

The pilots that were "recalled" to US Airways beginning in 2003 were listed erroneously as furloughed by grandpa Nicholau.

This was precipitated by Nicholau's use of an unofficial seniority list during the arbitration.

Mark my words, as they will play a very decisive role in what ALPA International does in the coming weeks.

There is absolutely no basis for what you say. Why on Earth would they TRY to throw out an award where there were two pilot neutrals assisting one of the most respected and experienced arbitrators?

 

[N924PS]

700UW,

Time will tell, but my information comes from members of the ALPA EC and US Airways MEC.

I'm not sure what the EC will do, but I know exactly what the majority of the US Airways pilots will do, if nothing else, which includes all of the options previously presented. This award will likely not be implemented for many, many years to come, if ever, because all the US Airways pilots have to do is negotiate per the Transition Agreement, live under LOA 93, let the AWA pilots enter Section VI negotiations (if they can), enter Section VI negotiations in 2010, and then wait 4 or 5 years to cut a deal.

By then the majority of US Airways pilots will be retired.

Regards,

USA320Pilot

Or forced to work until Age 65 under LOA 93 Pay and Work Rules.

I would be surprised if ALPA supports the Award as is, that a voting majority of East Pilots would vote for that course of action.

 

[Busdrvr]

There is one very simple reason they will void this "award" and it is / was called MidAtlantic Airways. The Embrear Divison of USAirways.

The pilots that were "recalled" to US Airways beginning in 2003 were listed erroneously as furloughed by grandpa Nicholau.

This was precipitated by Nicholau's use of an unofficial seniority list during the arbitration.

Mark my words, as they will play a very decisive role in what ALPA International does in the coming weeks.

Hmmm, let's think about this. The U guys seem to all insist that they get DOH PLUS ALL the 330 flying. So it seems they feel the award of the top 500 slots for the 10 widebodies is "fair". As a matter of fact, some have argued that the award didn't reward enough windfall to the widebody FO's. Now you're telling me Nic was errant in no counting the 190s.... I'll play!

If your widebodies get slotted above the most senior AWA guy since they didn't fly anything that big, then why shouldn't ALL the 190 guys get slotted below the AWA guys because they didn't fly anything that SMALL? :unsure:

 

[88 B.T.D.]

""If your widebodies get slotted above the most senior AWA guy since they didn't fly anything that big, then why shouldn't ALL the 190 guys get slotted below the AWA guys because they didn't fly anything that SMALL?""

The Captain slots of 170 would be ahead of Narrowbody FO under his hierarchy of division in the award

 

[oldiebutgoody]

Hmmm, let's think about this. The U guys seem to all insist that they get DOH PLUS ALL the 330 flying. So it seems they feel the award of the top 500 slots for the 10 widebodies is "fair". As a matter of fact, some have argued that the award didn't reward enough windfall to the widebody FO's. Now you're telling me Nic was errant in no counting the 190s.... I'll play!

If your widebodies get slotted above the most senior AWA guy since they didn't fly anything that big, then why shouldn't ALL the 190 guys get slotted below the AWA guys because they didn't fly anything that SMALL? :unsure:

Because the east side has all the types the west has. Therefore, even the 190 guys would one day be able to fly an airbus 319/320. The west side did not own or even have on order any large widebody aircraft.

That's why. And I'm not even an employee. This will all be for naught when the age 60 rule goes away anyway.

 

[aquagreen73s]

I think aquagreen is making it more complicated than it needs to be, if you just want to consider the legal status of the Nicolau award itself.

It is an arbitration decision. (I disagree the decision it is an actual contract in its own right, as aquagreen seems to be saying -- although the agreement to go to arbitration and abide by the results would be a contract.) The bottom line is that courts give great deference to arbitrators where, as here, two parties have agreed to submit their dispute to arbitration under a specific set of rules (the merger policy) and have agreed to regard the arbitrator's decision as binding.

There are only very narrow grounds for a court to not enforce an arbitration decision, and they are mostly procedurally-based, not substantively-based.

Sorry if I didn't make the distinction clear: the merger process is a contract. The arbitration only enters into the contract picture because that is what the AAA-AWA-National contract called for. Nic was an independent third party. Once that third party returned the award, National's duty to support and defend arose per the contract.

You also make a great point about arbitration and the legal presumptions an arbitration carries with it. Courts do give great weight to an arbitrated decision and will presume fairness unless there is some sort of readily apparent defect, either procedural or substantive. What the East wants is a substantive change and for that they are butting up against a presumption that the award is fair. Same goes for National. That's why the only real option is to send it back for an entirely new arbitration but then that opens up a bunch of other cans of worms. There's also the question of whether the NMB would even allow ALPA to "overrule" them by asking for a complete do-over. Additionally, National would be setting a dangerous precedent for future arbitrations - if they opened up the Nic award, then why not a future one? Not only would AWA pilots walk away with a beautiful contract/DFR/tort settlement, but National would be haunted by their actions when every other arbitration award came out. It's a slippery slope that I, and apparently the AWA merger committee as well, believe with a certainty that National doesn't want to even get close this quagmire.

 

[pilot]

They are in the quagmire Perry Mason.

They created it with a vague and obtuse merger policy that is wide open to every Tom, Dick and Harry's interpretation and not based on the Allegheny/Mohawk LPP's that served each and every other merger just fine.

Had they just turned the East MEC away it would have been over. As it stands it is just starting. And it's not a slippery slope. It's a double black diamond with moguls the size of Lincoln Town Cars.

And both MEC's find ourselves peering over the edge. What happens next will be talked about and debated for a long time.

And what happens next will be determined by the East and West MEC's or the ALPA Executive Council. Not by anyone opining on this board.

pilot

 

[Barberpole]

They are in the quagmire Perry Mason.

They created it with a vague and obtuse merger policy that is wide open to every Tom, Dick and Harry's interpretation and not based on the Allegheny/Mohawk LPP's that served each and every other merger just fine.

Had they just turned the East MEC away it would have been over. As it stands it is just starting. And it's not a slippery slope. It's a double black diamond with moguls the size of Lincoln Town Cars.

And both MEC's find ourselves peering over the edge. What happens next will be talked about and debated for a long time.

And what happens next will be determined by the East and West MEC's or the ALPA Executive Council. Not by anyone opining on this board.

pilot

Well don't expect anything from the West MEC. No matter how many east guys show up for the next picket. We have passed a resolution that absolutely no negotiating will take place with regards to the Nic award. Your best bet is to negotiate a good contract which has top of scale fo's making more than loa 93 captains......