April/May 2013 Pilot Discussion

[traderjake]

I am embarrassed for you, but understanding that you may have debilitating personal problems.

You're an embarrassment for all us of who aren't thieves.

 

[EastUS1]

You're an embarrassment for all us of who aren't thieves.

Goody for you, Lt Hardy! Consider yourself hereby awarded the Cross-Threaded-Cross of "Valor" and "Virtue", of course with Strange Particle Cluster, and Incomprehensibly Twisted Swords....in the umm.. "Army" of leonidas, of course.

Sally forth, good Sir Knight, and make of this world a far better place! Per your noble Quest? Ensure you, goodly knight, that you shout loudly to every passing village that any newhired apprentice should now and forever more, be "righteously" placed above any existing tradesman with 17 years worked experience.

Umm...DO let us all know how well you're received in any/all passing lands..OK? We all wish you luck in your noble quest....Really...We do. After all...You'll need it, just to survive.

PS: A suggested distraction, for keeping the existing and established tradesmen from killing you immediately, would be to take munn along as a jester. Who knows? They might just have him for dinner instead...or better yet; some societies have historically considered the obviously and incurably insane to be "blessed", and might not kill either of you...so definately take him along. In any case: DO let us all know how it all works out for you.

 

[Zone5]

Yeah. And sometimes two out of three can be wrong, even if they are the majority.

Bybee was spot on.

That whole majority rule thing really seems to be a problem for you. You must deal with a lot of frustration in your life, as a result.


seajay

 

[Claxon]

Are you that stupid or just clueless? Talk about denial.

That letter was entered into federal court under federal rules of evidence. usapa opposed it but lost because it was proven true and accurate.

Two years from Mesa Airlines pilot to america west and then saving an airline.

http://www.pwc.com/us/en/alumni/keyword/vol6/re-routed.jhtml

 

[Claxon]

Claxon has some stange fascination with Australia. If you send him into exile in the Outback maybe we can return to a normal diologue.

You posted a quote stating that awa pilots did not fly in Australia, I asked you to clarify this twice. Your creditability is questionable regarding most of your posts.

snapthis, on 28 April 2013 - 10:57 PM, said:" Evertime I see you post this, I'll post a rebuttal which has be posted on another forum:"

"evertime"? "has be"?

http://www.airlinefo...040#entry996339

 

[end_of_alpa]

A Conversation with an Attorney​

KEEP THIS INFORMATION CONFIDENTIAL​

On Saturday, June 9th in San Francisco I had a conversation regarding our case with Chris Katzenbach of Katzenbach and Khitikan, a labor law firm.

Katzenbach and Khitikan have done some NMB work primarily with the American Eagle pilots group and they helpd them set up a 501C3 non-profit format to hold the Eagle Pilots independent union which is involved in an organizing campaign to oust ALPA from that property.

In commenting on our case he said that as an outsider he really had to hand it to the opposing counsel in the final brief for the America West Pilots. He understands, in some respects, the issues involving airline seniority. He said however that to an outsider the America West brief was very convincing and easy to follow. This doesn't make it right or more fair, it's just an easier to follow and better presentation to follow than the Katz presentation. The America West brief, appears a least on the surface, to be more in line with the stated new ALPA merger policy. It ignores past president but if you only have the current policy as a point of reference then their argument seems more in tune with it.

Chris Katzenbach feels that a direct assault on this award in the courts is a looser. The courts don't want to be educated on the minutia of this case or any other complicated private matter. The courts only concern is if there is fraud or bribery or some other gross misconduct in the conduct of this arbitration. If pressed they would take a case like that but he feels it to be a looser. It would also probably require a substantial down payment up front to pursue. By the way their fees are very reasonable, $275.00 per billable hour.

I next specifically asked him about the formation of a new bargaining agent as an avenue of advance to get around this award. He says that it is entirely possible. The key the courts look for is not the private squabbles, procedures and methodologies between unions and their nationals, the facts of the collective bargaining agreement. The CBA is the defining argument in a case to the courts. The Railway Labor Act /National Mediation Board procedure and policy above all governs.

"Could the America West pilots sue us" I asked, "if we pursue this course of action." "Yes", he said however Duty of Fair representation suits are losers, Katzenbach and Khitikan sued ALPA for the American Eagle Pilots over their current contract which among other things had a 20 year no strike clause. The contract was a negotiating committee cram down to keep from having the Eagle flying farmed out and allowing for the American equivalent version of "jets for jobs" and "flow through." Does this sound familiar?? As a result of this contract the Eagle pilots are trying to get out of ALPA.

Chris said the contract was truly piece of "####" but because it was negotiated by the duly elected negotiating committee it would stand in court. They lost big-time and that's that. So to answer the question, yes you can be sued but they must prove fraud or other really gross violations of law to have the suit stand up. However, he cautioned, the language you use in setting up your new union and how you go about talking and writing about your solutions to this award can be used against you. You need to stress he positives of the new union and not dwell on the award. Don't give the other side a large body of evidence that the sole reason for the new union is to abrogate an arbitration, the Nicolau award, that in the opinions of most judges, should be allowed to stand due to no gross negligence or fraud.

In a ruling by the NLRB, not the NMB, in 1954, stated: Seniority status in mergers must be resolved between the the employer and the union not by the union unilaterally. 107 NLRB 837;225F.2nd.343. That is to say seniority lives in the collective bargaining agreement not inside the unions. It will cost some more money to find if there is an equivalent ruling in a case by the NMB, but Chris feels there most certainly is.

A study and roadmap of the case law based on the premise that a new bargaining agent can get around the award and make the Nicolau award moot will cost 5 to 7 billable hours, so about $1925 with this firm.

When I stated that our Chairman Doug Parker had expressed an interest in industry consolidation he replied "well you know this process can work in reverse". That is, if we had a merger with United then even before there was an arbitration process the United pilots would petition the NMB for "single carrier status" and we could find ourselves back in the same position as we are now, inside ALPA. The Nicolau award won't die until ALPA dies. If there are mergers down the road then the award can come back if ALPA does. Seniority lives in the CBA so you need a new contract to go with the new union to solidify your claims. Can something be put in the contact to protect these claims, I asked. "That question will require a lot of research". Katzenbach and Khitikan seem to be competent in this area although they are not experts in Railway Labor Act /
NMB law. Chris stated that there are very few firms who specialize in RLA/NMB law, it's a very small portion of labor law pie.

This consultation is not free, they don't do that with this kind of case, but they have low rates ie, $275/hr. My name is the one given so I will pony up on this meeting and the firm will supply a resume of their qualifications to do this kind of law and a recap and their opinions on what was discussed and I will forward that information when I get it so that all can see what type of law firm this is and if we want to do business with them in the future.

Respectfully Submitted,

an aaapilots4fairness committee member


USAPA, A Legitimate Union With a Purpose ?

So what. We didn't even go with that lawfirm. Attorneys are like a holes....you know the rest.

 

[end_of_alpa]

I am asking questions tonight. Look forward to some dialog.

As to our current dispute on seniority, what difference does it make (now) as to “who saved who.” Will any answer to that question have any bearing on a legal ruling as to USAPA using the NIC or not?

Does anyone believe the pre certification actions, intent, emails from the founders, even hate mail from the founders..have any effect on the outcome of a DFR lawsuit based on USAPA NOT using the NIC?

Does the current West Class Addington II filing present ANY case law or complaints that actually meet the standards of a true DFR?

Does an MOU, that indeed sets forward a binding process for a contract and seniority integration, have any relevance in a DFR filing BEFORE the POR, to say another way, before the merger is official and a sure thing?

Will Judge Silver ruling “ripe” bring the NIC to US Airways, and would that ruling make the NIC the list USAPA presents to M/B as a starting point for seniority negations?

Did the East pilots vote on the MOU and ratify a combined East/West seniority list, without knowing so?

Does the Company’s stated belief on ripeness have any bearing on actual ripeness?

Does the UCC’s stated belief on ripeness have any bearing on actual ripeness?

Does AMR’s stated belief on ripeness have any bearing on actual ripeness?

Did the West Class agree (with USAPA) to amend the process for seniority integration, by doing away with LOA 96? Secondly, cannot both USAPA and US Airways (in lieu of East ALPA, US Airways, and West ALPA) change the rules with a member ratified agreement..a “new” transition agreement?

Would USAPA’s unilateral agreement to use the NIC as their new list relieve them of any DFR’s from the East pilots? Does the West Class have a greater weight in the DFR arena, than an “East” class suing because the CBL was not followed?

I have about 20 more questions, I will keep them coming.

Greeter

Give it up. West pilots don't answer questions because they don't have answers. Just the same ole tired arguments. Isn't that right, Dave.....err Cactusboy?

 

[end_of_alpa]

I've decided just to post the legal quotes and precepts just so I can bust the West pilots balls for not sticking to the issues. Lets begin.

"Finally, the Court notes that Plaintiffs have already accused USAPA of operating in bad faith. (Doc. 19). Having handled the previous litigation, the Court is well-aware of the importance of the issues in this case and the unfortunate level of antagonism between the parties. That antagonism, however, will not be permitted to spillover into this litigation. Going forward, the parties must make sincere efforts to reach agreement where possible and to accommodate reasonable requests by the opposing party."

 

[end_of_alpa]

"Pursuant to the Court’s resolution of the motions for summary judgment,
IT IS ORDERED Counts I and III of the complaint are dismissed and judgment is entered in favor of US Airline Pilots Association on Count II of the complaint. US Airline Pilots Association’s seniority proposal does not breach its duty of fair representation provided it is supported by a legitimate union purpose.
DATED this 11th day of October, 2012. Roslyn O. Silver CHIEF United States District Judge"

 

[end_of_alpa]

"To prevail on a DFR claim, Plaintiffs must prove that USAPA’s having “enter[ed] into the MOU with the firm intention of using a date-of-hire seniority list rather than the Nicolau Award list” was arbitrary, discriminatory or in bad faith. See Complaint, ¶99 (emphasis in original); O’Neill, 499 U.S. at 67 (“[A] union breaches its duty of fair representation if its actions are either ‘arbitrary, discriminatory, or in bad faith.”). Despite this controlling Supreme Court law, Plaintiffs fail to even allege that USAPA’s actions are arbitrary, discriminatory, or in bad faith. Indeed those words are entirely absent from the complaint and Plaintiffs’ motion papers.
The Supreme Court in O’Neill held that a union’s actions are arbitrary “only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness,’ . . . as to be irrational.” Id. (quoting Huffman, 345 U.S. at 338). Because “Congress did not intend judicial review of a union’s performance to permit the court to substitute its own view of the proper bargain for that reached by the union . . . Any substantive examination of a union’s performance, therefore, must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities.” Id., at 78. To that end, “the final product of the bargaining process may constitute evidence of a breach of duty only if it can be fairly characterized as so far outside a ‘wide range of reasonableness,’ . . . that it is wholly ‘irrational’ or ‘arbitrary.’” Id. at 78 (quoting Huffman, 345 U.S. at 338).
In defining what constitutes arbitrary conduct, the Supreme Court in O’Neillrejected the Fifth Circuit’s application of a three part test to determine whether a union’s actions are arbitrary, because, inter alia, it failed to take into account “the importance of evaluating the rationality of a union’s decision in light of both the facts and the legal climate that confronted the negotiators at the time the decision was made.” Id.
Plaintiffs have not shown any arbitrary conduct on the part of USAPA."

Harper can't even PLEAD correctly.

 

[end_of_alpa]

"Thus, the plain language of the MOU put Plaintiffs on notice that ratifying the MOU would act as assent to the seniority arrangements in paragraph 10 therein. Gullickson, 87 F.3d at 1185 (finding that plaintiffs knew “ratifying the [new collective bargaining agreement] signified assent to the seniority arrangements contained in the [Letter of Agreement].&rdquo. The ratification vote clearly shows that after five years of protracted litigation surrounding the Nicolau Award, the West Pilots moved on. See Rakestraw v. United Airlines, Inc., 981 F.2d 1524, 1534 (7th Cir. 1992) (affirming dismissal of the DFR claim and noting that plaintiffs there ““eventually stopped sulking, voted, and approved the . . . [MOU]&rdquo, cert. denied sub nom., Hammond v. Air Line Pilots Ass’n Int’l, 510 U.S. 861 (1993). As the Seventh Circuit in Rakestraw noted:
A voluntary choice may not be withdrawn because the choice was an effort to make the best of a bad situation. Adult pilots, of sound mind and well aware of the consequences of their acts, must expect to keep their contracts, even when they wish they could have made better deals.
981 F.2d at 1534.
By voting in overwhelming numbers to ratify the MOU, Plaintiffs and the
putative class of West Pilots are now barred from alleging a DFR claim arising out of the negotiation and contents of the MOU, and the complaint should be dismissed."

 

[end_of_alpa]

I've decided just to post the legal quotes and precepts just so I can bust the West pilots balls for not sticking to the issues. Lets begin.

"Finally, the Court notes that Plaintiffs have already accused USAPA of operating in bad faith. (Doc. 19). Having handled the previous litigation, the Court is well-aware of the importance of the issues in this case and the unfortunate level of antagonism between the parties. That antagonism, however, will not be permitted to spillover into this litigation. Going forward, the parties must make sincere efforts to reach agreement where possible and to accommodate reasonable requests by the opposing party."

"Note to self, be civil.....NOT! /s/ Marty Harper "

 

[end_of_alpa]

"Plaintiffs have alleged nothing but conclusory allegations in support of their DFR claim against USAPA. “[L]egal conclusions . . . cast in the form of factual allegations” are insufficient to defeat a motion to dismiss. Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011), cert. denied 132 S.Ct. 850 (2011). Aside from reciting the events leading up to the Nicolau Award, the findings of Judge Wake in Addington I (which were vacated and dismissed and thus carry no weight), and the Declaratory Judgment Action, Plaintiffs fail to allege any facts supporting their claim that “USAPA does not have a legitimate union purpose to use anything other than the Nicolau Award list to integrate East Pilots and West Pilots.” (Complaint, ¶98)

Absent from the complaint are any allegations that USAPA’s conduct in entering into the MOU was “arbitrary, discriminatory, or in bad faith”, the sine qua non of a DFR claim. See Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903 (1967). Instead, the DFR claim is reduced to mere tautologic repetition of a legal principle but no actual facts as to the alleged DFR."

 

[end_of_alpa]

“[T]he substantive rulings in Addington have been vacated pursuant to mandate, and both cases would now write on clean slates if there were anything to write in Addington, which there is not.” Addington v. US Airline Pilots Ass’n, 2010 WL 4117216, at *3 (D. Ariz. Oct. 19, 2010)."

 

[end_of_alpa]

"Thus, the plain language of the MOU put Plaintiffs on notice that ratifying the MOU would act as assent to the seniority arrangements in paragraph 10 therein. Gullickson, 87 F.3d at 1185 (finding that plaintiffs knew “ratifying the [new collective bargaining agreement] signified assent to the seniority arrangements contained in the [Letter of Agreement].&rdquo. The ratification vote clearly shows that after five years of protracted litigation surrounding the Nicolau Award, the West Pilots moved on. See Rakestraw v. United Airlines, Inc., 981 F.2d 1524, 1534 (7th Cir. 1992) (affirming dismissal of the DFR claim and noting that plaintiffs there ““eventually stopped sulking, voted, and approved the . . . [MOU]&rdquo, cert. denied sub nom., Hammond v. Air Line Pilots Ass’n Int’l, 510 U.S. 861 (1993). As the Seventh Circuit in Rakestraw noted:
A voluntary choice may not be withdrawn because the choice was an effort to make the best of a bad situation. Adult pilots, of sound mind and well aware of the consequences of their acts, must expect to keep their contracts, even when they wish they could have made better deals.
981 F.2d at 1534.
By voting in overwhelming numbers to ratify the MOU, Plaintiffs and the
putative class of West Pilots are now barred from alleging a DFR claim arising out of the negotiation and contents of the MOU, and the complaint should be dismissed."

Two of the (four) NAC’s members, Ken Holmes and Rocky Calveri are West pilots.