August 2013 Pilot Discussion

[Phoenix]

In a three-way negotiation process would the requirement be a unanimous agreement or would 2/3 be sufficient? Seems like the west would do just fine with a fresh slotting by equipment/status integration as APA has already indicated they are in support of. Likewise, I'm not sure what the AMR pilots would gain by siding with the east against the NIC and opening themselves up to DFR liabilities alng with inviting a protracted and costly battle with little to no benefit for going that way. So if 2/3 in the process would work, then either the NIC or ratioed slotting seems like it would have a strong chance of clearing the hurdles to achieve a final product without arbitrators and courts. On the other hand, regardless if it's just APA and USAPA or + west with a unanimous requirement, a USAPA adherence to a DOH scheme would mean arbitration is inevitable regardless of what the west does or does not do.

Well all this speculation about all the possible contingencies is fun. Really, it is. We could follow the MOU, as ratified by all legal parties to it (assuming the DOJ lawsuit is resolved in favor of the merger proceeding)... or Judge Silver can do all the thinking for everyone and just insert herself and impose her will on all parties by commanding the MOU be altered with conditions, restrictions, or an injunction that none of the parties factored into their negotiated positions, and none of the members of any of those parties ratified.

The contingency of Judge Silver magnifies the impact of all the other contingencies!! Wake was a mere amateur!

 

[Pi brat]

If Silver orders that the West is entitled to receive a seat at the MB table (in accordance with an MOU that is not even effective ) then by definition such an order is a "remedy" awarded to the plaintiff for an injury caused by the defendant, namely that USAPA failed its DFR by not including the Nic in the MOU.

If she doesn't find USAPA guilty of a DFR for not using the Nic in the MOU, then by what rationale would she award a remedy? thus, if she finds that USAPA breached its duty of DFR by not including the Nic, then why would she have any remedy other than an injunction including the Nic?

If Silver only gives the West a seat at the table (but not Nic), then certainly they must appeal to the 9th. Needles to say, Wake and Silver are in a league all their own with regard to screwing the pooch by the numbers.

You mean the union has to be found guilty in order to have a remedy? Huh, who would have guessed?

 

[Pi brat]

In a three-way negotiation process would the requirement be a unanimous agreement or would 2/3 be sufficient? Seems like the west would do just fine with a fresh slotting by equipment/status integration as APA has already indicated they are in support of. Likewise, I'm not sure what the AMR pilots would gain by siding with the east against the NIC and opening themselves up to DFR liabilities alng with inviting a protracted and costly battle with little to no benefit for going that way. So if 2/3 in the process would work, then either the NIC or ratioed slotting seems like it would have a strong chance of clearing the hurdles to achieve a final product without arbitrators and courts. On the other hand, regardless if it's just APA and USAPA or + west with a unanimous requirement, a USAPA adherence to a DOH scheme would mean arbitration is inevitable regardless of what the west does or does not do.

I don't make many predictions, but I predict that IF Judge Silver gives the west separate status, and IF that stands after all the appeals, then there will be no settlement on a SLI and it will go to a panel of arbitrators. You will have to then convince them that they should ignore the MOU and the fact that a federal judge couldn't award force the use of the Nic, but they can.

 

[CallawayGolf]

I don't make many predictions, but I predict that IF Judge Silver gives the west separate status, and IF that stands after all the appeals, then there will be no settlement on a SLI and it will go to a panel of arbitrators. You will have to then convince them that they should ignore the MOU and the fact that a federal judge couldn't award force the use of the Nic, but they can.

Well that would be a long, long way down the process. That naturally takes me back to what I said last week (or earlier) that the DJ appeal has a far better chance of resolving the issues than anything that is ordered by Silver in the DFR-II trial. If the Ninth removes the constraints that Silver felt that would have allowed her to actually provide relief on Counts 1 or 2, then the answer is attained with no more delays over ripeness. If she rules on Count 1 then USAPA will be compelled to negotiate FOR the NIC in either stand-alone LCC negotiations or in the new SLI negotiations with the APA. If she rules without equivocation on Count 2, then the NIC falls on the scrapheap of history serving only as a warning beacon for those who, like me, think that binding arbitration is actually binding.

If the Ninth again kicks the can down the road and provides no relief, well it will be a long, long time before all pilots are brought under a single seniority scheme, just as you suggest.

 

[Phoenix]

You mean the union has to be found guilty in order to have a remedy? Huh, who would have guessed?

Yes, if USAPA is found guilty of not using the Nic, who would have thought Silver would consider a remedy that doesn't require USAPA to use the Nic they were supposed to use?

 

[Pi brat]

Well that would be a long, long way down the process. That naturally takes me back to what I said last week (or earlier) that the DJ appeal has a far better chance of resolving the issues than anything that is ordered by Silver in the DFR-II trial. If the Ninth removes the constraints that Silver felt that would have allowed her to actually provide relief on Counts 1 or 2, then the answer is attained with no more delays over ripeness. If she rules on Count 1 then USAPA will be compelled to negotiate FOR the NIC in either stand-alone LCC negotiations or in the new SLI negotiations with the APA. If she rules without equivocation on Count 2, then the NIC falls on the scrapheap of history serving only as a warning beacon for those who, like me, think that binding arbitration is actually binding.

If the Ninth again kicks the can down the road and provides no relief, well it will be a long, long time before all pilots are brought under a single seniority scheme, just as you suggest.

I saw your post about that last week, but didn't reply. I'm not sure what the company's DJ appeal would have to do with this case. It's about a different set of circumstance, pre-MOU. Seems to me that the MOU changed everything, so an answer there wouldn't necessarily apply here. But, who knows with the courts?

 

[Pi brat]

Yes, if USAPA is found guilty of not using the Nic, who would have thought Silver would consider a remedy that doesn't require USAPA to use the Nic they were supposed to use?

Which she had already said she cannot force them to use. Who's on first? No wonder she couldn't get Hummel's name right in court last week.

 

[Phoenix]

Well that would be a long, long way down the process. That naturally takes me back to what I said last week (or earlier) that the DJ appeal has a far better chance of resolving the issues than anything that is ordered by Silver in the DFR-II trial. If the Ninth removes the constraints that Silver felt that would have allowed her to actually provide relief on Counts 1 or 2, then the answer is attained with no more delays over ripeness. If she rules on Count 1 then USAPA will be compelled to negotiate FOR the NIC in either stand-alone LCC negotiations or in the new SLI negotiations with the APA. If she rules without equivocation on Count 2, then the NIC falls on the scrapheap of history serving only as a warning beacon for those who, like me, think that binding arbitration is actually binding.

If the Ninth again kicks the can down the road and provides no relief, well it will be a long, long time before all pilots are brought under a single seniority scheme, just as you suggest.

The 9th was careful to keep the judicial system from interfering with the bargaining agents (both the company and USAPA) during negotiations. Yeah the company is pretending the 9th left them confused... but the idea that the Company suddenly "can't negotiate" because the 9th didn't clarify is BS... The company uses every excuse to negotiate all the time.. hasn't anyone notice the contract is dated from the last millennium? )

The 9th left USAPA and the company free to bargain to a final product. They didn't kick any can down the road. The only kicking they did was kicking Wake out of the middle of bargaining, where he didn't belong.

I agree the 9th could clarify what they already said (that courts do not interfere while bargaining is ongoing), but I can't see why they would change their mind to intervene now in the middle of all these contingencies which could likely result in so many new things to bargain about among who knows who.

 

[Phoenix]

Which she had already said she cannot force them to use. Who's on first? No wonder she couldn't get Hummel's name right in court last week.

Not to worry. The trial will be postponed because Silver has been summoned to participate in fixing the Obamacare website.

 

[CallawayGolf]

I saw your post about that last week, but didn't reply. I'm not sure what the company's DJ appeal would have to do with this case. It's about a different set of circumstance, pre-MOU. Seems to me that the MOU changed everything, so an answer there wouldn't necessarily apply here. But, who knows with the courts?

How would it be different? If USAPA was not contractually required by the TA to use the NIC for a stand-alone JCBA, then would they not also logically be unconstrained from the NIC for the MOU. On the contrary, if USAPA was contractually to use the NIC for a LCC JCBA, then the would also logically be constrained to use the NIC for the MOU, even if the MOU made no reference to the NIC or if the MOU used the terms lists instead of list? The DJ was filed to have the court determine which course of action would release the Company from a legal liability regarding the NIC and a JBCA. If the Ninth an Silver answer that question, then it follows that the MOU and any CBA that occurs after the POR with AMR would have the same freedoms or limitations as the case may be.

 

[CallawayGolf]

The 9th was careful to keep the judicial system from interfering with the bargaining agents (both the company and USAPA) during negotiations. Yeah the company is pretending the 9th left them confused... but the idea that the Company suddenly "can't negotiate" because the 9th didn't clarify if BS... The company uses every excuse to negotiate all the time.. hasn't anyone notice the contract is dated from the last millennium? )

The 9th left USAPA and the company free to bargain to a final product. They didn't kick any can down the road. The only kicking they did was kicking Wake out of the middle of bargaining, where he didn't belong.

I agree the 9th could clarify what they already said (that courts do not interfere while bargaining is ongoing), but I can't see why they would change their mind to intervene now in the middle of all these contingencies which could likely result in so many new things to bargain about among who knows who.

You do realize that the ripeness doctrine is different with a DJ than it is with traditional civil case, right? The Ninth said that USAPA is free to negotiate - pursuant to their DFR - but they didn't say that whatever USAPA negotiates will not produce a DFR, hence the warning. The Declaratory Judgment provision allows the court to forgo traditional ripeness standards and look at the stated intentions of an organization and rule as if they had actually violated the law BEFORE they actually do so. That's why the DJ can and does look into the merits rather than just turning a blind eye until a case becomes unquestionably ripe.

 

[Phoenix]

You do realize that the ripeness doctrine is different with a DJ than it is with traditional civil case, right? The Ninth said that USAPA is free to negotiate - pursuant to their DFR - but they didn't say that whatever USAPA negotiates will not produce a DFR, hence the warning. The Declaratory Judgment provision allows the court to forgo traditional ripeness standards and look at the stated intentions of an organization and rule as if they had actually violated the law BEFORE they actually do so. That's why the DJ can and does look into the merits rather than just turning a blind eye until a case becomes unquestionably ripe.

Ripeness doctrine? I am not arguing the DJ lacks ripeness. Of course it is ripe, but so what? There is no reason to assume the 9th will say anything different in a DJ than they already said in Addington 1.

You are implicitly assuming USAPA intends to violate its DFR. The 9th rejected implicit assumptions devoid of injuries in fact... and especially so in the midst of bargaining with outstanding contingencies.

The 9th knows what the SCOTUS standard of DFR is, but there is absolutely no way the 9th can know what the final product of bargaining will be. The 9th cannot even be sure who the legal negotiating parties will be. The AMR proposed merger proves the 9ths prescience about contingencies!

The 9th doesn't know anymore than they knew before, except that contingencies happen! Did Tashima get a new crystal ball?

They know the SCOTUS standard of DFR and they can repeat it in a declaratory way. Don't exceed a wide range of reasonableness so much so that your product can be judged as arbitrary.

 

[Pi brat]

How would it be different? If USAPA was not contractually required by the TA to use the NIC for a stand-alone JCBA, then would they not also logically be unconstrained from the NIC for the MOU. On the contrary, if USAPA was contractually to use the NIC for a LCC JCBA, then the would also logically be constrained to use the NIC for the MOU, even if the MOU made no reference to the NIC or if the MOU used the terms lists instead of list? The DJ was filed to have the court determine which course of action would release the Company from a legal liability regarding the NIC and a JBCA. If the Ninth an Silver answer that question, then it follows that the MOU and any CBA that occurs after the POR with AMR would have the same freedoms or limitations as the case may be.

I guess it's the ever changing question. Judge Silver distilled the case down to (I thought) did USAPA fail it's DFR by not mandating the Nic in the MOU. The standing ruling at the time of the MOU was that they didn't have to, so how could they then be guilty. You're saying subsequent events would make them guilty. Convoluted, but I get what you're saying.

 

[CallawayGolf]

Ripeness doctrine? I am not arguing the DJ lacks ripeness. Of course it is ripe, but so what? There is no reason to assume the 9th will say anything different in a DJ than they already said in Addington 1.

You are implicitly assuming USAPA intends to violate its DFR. The 9th rejected implicit assumptions devoid of injuries in fact... and especially so in the midst of bargaining with outstanding contingencies.

The 9th knows what the SCOTUS standard of DFR is, but there is absolutely no way the 9th can know what the final product of bargaining will be. The 9th cannot even be sure who the legal negotiating parties will be. The AMR proposed merger proves the 9ths prescience about contingencies!

The 9th doesn't know anymore than they knew before, except that contingencies happen! Did Tashima get a new crystal ball?

They know the SCOTUS standard of DFR and they can repeat it in a declaratory way. Don't exceed a wide range of reasonableness so much so that your product can be judged as arbitrary.

The Ninth and Silver don't need a crystal ball, they just need to rule on either Count 1 or Count 2 which are simple, concise and definitive statements concerning the use of a non-NIC list as it relates to USAPA's DFR. The Ninth previously speculated that the final result may not bring the harm the west fears so perhaps no future lawsuit would be filed in that case. The DJ didn't ask if the west pilots would sue or not sue based on a final result, it asked if any non-NIC list could be a violation of USAPA's DFR. See the difference? No need to speculate or prognosticate on what the full range of possibilities may be in a final result. Rather just provide relief concerning the use of any non-NIC list whatever it may be.

 

[Freighterguynow]

How did LOA93 rates drag out the SLI or attaining a JCBA? The only thing dragging out the pilot seniority integration is a continued refusal to accept the NIC and move on.

The East pilots are better off under LOA 93 than any conceivable contract (Kirby style) that includes the Nic.

Membership ratification, 3500 to 1700, 2 to 1, 8 - 3, separate ops... you still don't get it - we know.

Give us the MOU rates and bu - bye West

You will not even need a countdown clock by the seat sniffer ..... Until the end of time.