April/May 2013 Pilot Discussion

[Phoenix]

Easier solution.

Nicolau Award with C & Rs used throught out the system.

The cheapest and easiest solution for the court is to tell everyone to shut up and get lost until it is ripe.

However waiting until it is ripe leaves the West at a significant risk of finding themselves harmed to some degree or another, but probably not harmed to an extent that it would ever really be feasible for them to recover damages and be made whole.

Perhaps Judge Silver is giving them an opportunity, sorta like the Nicalau approach... "Marty, I told you it doesn't have to be the Nic, and the 9th told you that you can't sue until there is a JCBA. You want to wait until then... Because I am about to dismiss this POS harassment suit, and you will get to sue after DOH with APA, or you can take this opportunity to go tell your clients to think long and hard about what their position is costing them. And in a week you can come back and make an offer that your clients can live with..... Court adjourned."

 

[Beancounter]

Sounds like she muddied the water again.

So what, we're back to: USAPA can come up with a list other than the Nic, but it will place them on dangerous ground and any list will be held up the Nic? That's great, we know USAPA won't hesitate to put themselves into a position to get sued, they love making lawyers rich. Boy did the ninth ever drop the ball. If they hadn't thrown that ripeness deal in there we'd be done with this already and we'd either have or not have the Nic or DOH.

Bean

 

[GuntherA320]

I agree it is difficult to draw much without reading the full context of the transcript. She did say last time that it didn't have to be the Nicolau so long as USAPA's actions were supported by a legitimate union purpose. The number one question since she made that statement is, "What legitimate union purpose can be advanced which would abrogate the NIC without violating the terms of the TA?" Is it not that conundrum Silver created in the DJ that led to an appeal to the Ninth for a more actionable ruling for the parties so that they could move forward?

You need to talk to your Leonidas brethren. However, she basically said that USAPA had a legitimate union purpose because they have to represent the East pilots as well as the West pilots. The last thing I overheard as i was leaving was a west pilot talking to Jeff Koontz. The west pilot said,"what I heard her say was that we need to negotiate a new list with the East". There were concerned faces all around.

 

[CallawayGolf]

You need to talk to your Leonidas brethren. However, she basically said that USAPA had a legitimate union purpose because the have to represent the East pilots as well as the West pilots. The last thing I overheard as i was leaving was a west pilot talking to Jeff Koontz. the west pilot said,"what I heard her say was that we need to negotiate a new list with the East". There were concerned faces all around.

That takes me back to asking how that is supposed to work? Is USAPA going to pay for separate west representation? Will the west have a separate ratification vote on the outcome of negotiations? Is Silver just going to lock a dozen people in a room and tell them they will be free to come out when a mutually acceptable agreement has been reached? How does she expect this new round of SLI negotiations to work?

 

[USA320Pilot]

[background=rgb(250, 250, 250)]Because of career disappointment and emotion many East pilots are confused regarding the SLI. Prior to USAPA's certification the East pilots could have used the emotional argument in their suit filed in D.C Superior Court and in mitigation discussions at DEN, Wye River, and further discussions if USAPA had not been elected.[/background]

[background=rgb(250, 250, 250)]Once USAPA was elected the discussion on "what is fair" became a moot point and shifted to a single legal argument: DFR.[/background]

[background=rgb(250, 250, 250)]Why? USAPA must represent both the East and West pilots fairly, which includes executing every point of each contract and LOA. Every court has affirmed that LOA 96, the Transition Agreement (TA), requires USAPA to implement the Nicolau Award per the TA.[/background]

[background=rgb(250, 250, 250)]Here's the salient point: In the DJ lawsuit Judge Silver wrote, "According to USAPA it is not 'contractually bound' by any of ALPA's agreements, including the Transition Agreement (Doc 160). But the West pilots, as well as US Airways, cite a variety of authority supporting the positions that the decertification of ALPA and the certification of USAPA did not change the binding nature of the Transition Agreement (Doc 164). The West pilots and US Airways are correct."[/background]

[background=rgb(250, 250, 250)]Judge Silver understands the SLI dispute is no longer about the "what is fair" opinion. It's about DFR. And, I might add if USAPA had not been elected the Addington group had no grounds to file their DFR lawsuit(s). But, the majority of East pilots refused to read the letter written by Mike Abram sent to each pilot's home and subsequently those who voted for USAPA created the DFR problem, which I believe will ultimately be the action that will force the pre-merger US Airways and America West pilots to integrate SLs per the Nicolau Award.[/background]

Separately, for those who believe USAPA is free to negotiate a list different SL other than the Nicolau Award, they can per the RLA. But, with that requirement is the LUP criteria, US AIrways' unwillingness to negotiate list other than the Nicolau Award because of the company's huge liability risk, and the Ninth Circuit's view that there would be some sort of S22 negotiation with US Airways. There was no S22 negotiation and USAPA has not budged from its C&R DOH mandate. I'm not sure, but I believe the Ninth Circuit would look dimly on USAPA if a SLI argument reaches their court and USAPA snubbed it's nose at the Ninth Circuit's S22 negotiation belief. And, Judge Silver made it clearly known that if USAPA negotiated a change to the Nicolau Award it could do so, but she gave the union a stern warning when she talked about the union being on "dangerous ground" and "Accordingly, if USAPA wishes to abandon the Nicolau Ward and accept the consequences of this course of action, it is free to do so."

USA320Pilot

 

[Pi brat]

. Boy did the ninth ever drop the ball. If they hadn't thrown that ripeness deal in there we'd be done with this already and we'd either have or not have the Nic or DOH.

Bean

I could see the west POV that USAPA's stated intentions should be enough to make it ripe. But, after I read the 9ths opinion it was clear why you couldn't. You have to know what the final product is and when you have two parties negotiating on something you don't know until it's done. Look at how it turned out. We never got to completion of the TA and USAPA never was successful in the implementation of a DOH hire list at US Airways, so that seems to prove the 9th was right. You can't run to court every time something is PROPOSED in a contract. If you could we would never get a contract, with competing interests fighting in court.

We should have settled this some other way a long time ago.

 

[Phoenix]

That takes me back to asking how that is supposed to work? Is USAPA going to pay for separate west representation? Will the west have a separate ratification vote on the outcome of negotiations? Is Silver just going to lock a dozen people in a room and tell them they will be free to come out when a mutually acceptable agreement has been reached? How does she expect this new round of SLI negotiations to work?

Marty has a week to figure it out. Talk to him about what you want him to say.

 

[Boeing Driver]

It may or may not be ripe; has yet to be determined. But one thing is for sure, it wont be the Nicolau...

Boeing Driver

 

[Phoenix]

...

[background=rgb(250, 250, 250)]Judge Silver understands the SLI dispute is no longer about the "what is fair" opinion. It's about DFR. ...[/background]

You waited all this time to post that?

What do you think the "F" stands for in "DFR"?

Marty has a week to come up with something "F" that he thinks USAPA can do now or risk having to defend a DOH un"fair"ness after the APA and USAPA finish agreeing about the SLI according to the MOU.

Winning a DFR once this is all over is much more costly and unlikely than taking this opportunity to come to some agreement with their opponent now. Silver probably doesn't technically have the necessity to let both sides offer a brief on a compromise, but Nicolau didn't have to give anyone a chance to come off their position either...

 

[Walmartgreeter]

LEO has to be doing a Robbie the Robot "conflict of routine" right now, sparks going everywhere. Their only purpose as an organization is the NIC, and they have just been told (once again, with sugar on top) that it’s not going to be that list.

One thing I know, Silver cannot "make" us do any list.

If what I hear so far is true, this is heading for "ripe AND dismissed."

Film at eleven, still getting updates. I reserve the right to change my opinion, this really was quite a day.

Greeter

 

[Phoenix]

I agree it is difficult to draw much without reading the full context of the transcript. She did say last time that it didn't have to be the Nicolau so long as USAPA's actions were supported by a legitimate union purpose. The number one question since she made that statement is, "What legitimate union purpose can be advanced which would abrogate the NIC without violating the terms of the TA?" ... forward?

There is much focus on the LUP question, but Silver didn't leave it up to the West to answer that...

No one wants to point out who must answer the LUP question. That is, who did Silver say has the responsibility to consider that question? She made it clear.


[font=times new roman']"As for US Airways, it must negotiate with USAPA and it need not insist on any particular seniority regime. [/font]
[font=times new roman']But US Airways must evaluate any proposal by USAPA with some care to ensure that it is reasonable and[/font]
[font=times new roman']supported by a legitimate union purpose."[/font]


[font=times new roman']"..being “bound” by the Transition Agreement has very little meaning in the context[/font]
[font=times new roman']of the present case. It is undisputed that the Transition Agreement can be modified at any[/font]
[font=times new roman']time “by written agreement of [USAPA] and the [US Airways].” USAPA and US Airways are [/font]
[font=times new roman']now engaged in negotiations for an entirely new collective bargaining agreement and [/font]
[font=times new roman']there is no obvious impediment to USAPA and US Airways negotiating and agreeing [/font]
[font=times new roman']upon any seniority regime they wish."[/font]


An MOU that replaces the seniority prescriptive TA with a seniority neutral process must have satisfied the company, WRT the LUP question.

 

[CallawayGolf]

There is much focus on the LUP question, but Silver didn't leave it up to the West to answer that...

No one wants to point out who must answer the LUP question. That is, who did Silver say has the responsibility to consider that question? She made it clear.


[font=times new roman']"As for US Airways, it must negotiate with USAPA and it need not insist on any particular seniority regime. [/font]
[font=times new roman']But US Airways must evaluate any proposal by USAPA with some care to ensure that it is reasonable and[/font]
[font=times new roman']supported by a legitimate union purpose."[/font]


[font=times new roman']"..being “bound” by the Transition Agreement has very little meaning in the context[/font]
[font=times new roman']of the present case. It is undisputed that the Transition Agreement can be modified at any[/font]
[font=times new roman']time “by written agreement of [USAPA] and the [US Airways].” USAPA and US Airways are [/font]
[font=times new roman']now engaged in negotiations for an entirely new collective bargaining agreement and [/font]
[font=times new roman']there is no obvious impediment to USAPA and US Airways negotiating and agreeing [/font]
[font=times new roman']upon any seniority regime they wish."[/font]

Precisely why the Company appealed her first ruling. Where in the RLA does it state that the Company is responsible for ensuring the legitimate and lawful actions of the CBA? If the Company gets it wrong and USAPA ends up having no LUP, they are liable for the harm caused by the CBA via a collusion claim against them. Silver didn't grant Management immunity in the DJ because no court can take away the rights of a party to recover damages simply because a court said it was okay to violate federal law before the harm took place. So, she left the parties without the very judicial relief they were seeking. Sounds like she may have done it again today, but I haven't seen the transcripts or an order from her to fill in the gaps of what was and was not said in court today.

 

[Bill Brasky]

Precisely why the Company appealed her first ruling. Where in the RLA does it state that the Company is responsible for ensuring the legitimate and lawful actions of the CBA? If the Company gets it wrong and USAPA ends up having no LUP, they are liable for the harm caused by the CBA via a collusion claim against them. Silver didn't grant Management immunity in the DJ because no court can take away the rights of a party to recover damages simply because a court said it was okay to violate federal law before the harm took place. So, she left the parties without the very judicial relief they were seeking. Sounds like she may have done it again today, but I haven't seen the transcripts or an order from her to fill in the gaps of what was and was not said in court today.

Here's the issue: you can sue until you're blue in the face (if you aren't already), but since there is no legal definition of just what constitutes an LUP you'll never win. PERIOD. I don't care what that idiot Chip says.

The reason the Nic is dead is because there is NO WAY for the west to prevail. NO WAY. As far as damages go, the westies will have to sue themselves. It's their fault, no one else's, that they didn't work something out with ALPA at Wye River instead of just firing the lawyer that warned them and going home. They could be partaking in the upgrade cycle no going on in the East, but now they are locked into a dowsizing PHX market. The westies have no one to blame but themselves.

I predict that Marty sues AOL for his fees before this thing is all wrapped up. Maybe you guys should go to goodwill and pick up some duds before your meet-and-greet later this week, so you can look poor. Maybe he'll have mercy on you. Naw, he's a lawyer.

 

[Phoenix]

Precisely why the Company appealed her first ruling. Where in the RLA does it state that the Company is responsible for ensuring the legitimate and lawful actions of the CBA? If the Company gets it wrong and USAPA ends up having no LUP, they are liable for the harm caused by the CBA via a collusion claim against them. Silver didn't grant Management immunity in the DJ because no court can take away the rights of a party to recover damages simply because a court said it was okay to violate federal law before the harm took place. So, she left the parties without the very judicial relief they were seeking. Sounds like she may have done it again today, but I haven't seen the transcripts or an order from her to fill in the gaps of what was and was not said in court today.

Sure. They wanted more assurance than her statement..

[font=times new roman']"it is unlikely the West Pilots could successfully allege claims against US Airways merely for not insisting that USAPA continue to advocate for the Nicolau Award."[/font]

But now that they have a ratified MOU they really don't care about the LUP question anymore because it puts the seniority issue into MB. They want their appeal to be held in abeyance.

It still remains, the West keeps asking the LUP question rhetorically as if there is no LUP that will allow anything other than the Nic, but obviously it isn't a rhetorical question and the company has answered it to their own satisfaction in getting to the MOU.

LUP isn't a means of resurrecting or preserving the Nic. The company is way down the road past the LUP question.

The only question left to the West is how much longer will Marty be on retainer if the possibility of damages evaporates?

 

[Pi brat]

Where in the RLA does it state that the Company is responsible for ensuring the legitimate and lawful actions of the CBA?

I always wondered about that. I thought it was like the fox guarding the hen house. Thing is, AOL kept bringing the company into it.