Federal Court Grants US Airways' Request For an Expedited Hearing On A Preliminary Injunction Agains

[Res Judicata]

USAPILOT320,

What were these reps not made aware of? I thought they were part of the decision process?

My guess is they found out the Hard Way that it was a very stupid idea to allow one deranged man, Mike Cleary, unfettered access and power to initiate legal proceedings. He has a bit of a hard time telling the truth to everybody. In fact, it seems even Cleary is finding out the hard way as evidenced by his latest "president's message" which was OBVIOUSLY not written by Mike Cleary but someone else....a very scared someone else.

BTW, the Company heard from Kasher last Friday. He didn't render a decision but it's forthcoming. Geez can you say "perfect storm" with the LOA 93, Permanent Injunction, and a Sea Change vote in CLT all happening inside of a week?

Buh Bye USAPA!!

 

[Move2CLT]

I've heard that as well and I'm inclined to believe that it will come out shortly after the injunction hearing on Friday.

 

[Move2CLT]

I found this part very telling, IMHO, as to how Friday may go. Sparrow, since it sounds like you have a legal background, I was wonder what you thought.




Here, the balancing of hardships and the public interest weigh in favor of at least considering an injunction in this case, despite the possibility that US Airways may have unclean hands. This conclusion is especially true in light of the fact that there is no evidence before this Court that US Airways has violated the status quo or failed to make every effort to resolve this dispute. Moreover, if USAPA does submit such evidence, this Court would be evaluating it only to determine the limited issue of whether the unclean hands provision of the NLGA precludes an RLA injunction.

 

[cleardirect]

PHX Domicile Update
Wednesday, June 08, 2011

One Man, One Vote!

This was the main thrust, and one of the stated reasons for the formation of USAPA. That under ALPA, too many decisions were made without the line pilots being allowed to express their point of view or affect the outcome. USAPA was ostensibly created as a bottom up, line-pilot directed organization which was to be more transparent and democratic than its predecessor. At USAPA, it was the line pilots that were going to be the ones in charge. We have heard many times about the anger and frustration caused by the lack of a vote related to the loss of the Pension fund and many other important decisions which were made without pilot input under ALPA. One man (or Woman), one vote! After three short years, that noble sounding objective has been achieved, only it has been twisted into exactly one man, one vote which is all that is needed to commit this union to any course of action. The distinction is that the line-pilots have been left out of the process again. Instead of the pilots having a vote, either directly or through their representatives, it is now one man (The President), one vote, (the President) which is all that is required by USAPA.

The Preamble of the USAPA Constitution states:

The pilots of US Airways, desiring a union that will advance their professional and economic well-being, hereby establish through this Constitution and Bylaws, the US Airline Pilots Association (USAPA).

This Association, founded on the principles of democracy and accountability, aspires to provide through this Constitution and Bylaws (C&BLs,) equally to each member, the benefits and controls of a truly participative organization, which ensures freedom of speech while promoting integrity, honor and trust. The Association will be attentive and respectful of each member's opinions and concerns and will always encourage full voluntary participation.

Recognizing our careers are linked to the success of our airline, we dedicate ourselves to use all legal and honorable means to attain the goals of our membership. This Constitution and Bylaws is the mechanism through which all members are represented individually and collectively. It establishes procedures for responsible leadership while assuring the membership's ultimate control of their Association.

The US Airline Pilots Association (USAPA) will comply with the Labor-Management Reporting and Disclosure Act of 1959, as amended.

The preamble of the USAPA Constitution quoted above establishes the direction that this association was supposed to take. But instead, just three short years later, a compliant "rubber stamp" of a board has allowed one man, The President, to become the one vote that sets the direction for all US Airways pilots. We don't think it was the intent of those that voted for USAPA to give up their voice and give it to one man- the President. You would expect there to be an outrage among the pilots, unless the real goal of the US Airways pilots was just to change the name of their union for some other purpose.

On Friday afternoon, May 27, 2011, just at the start of a long Holiday weekend, the president announced to the Pilot Board of Representatives (The Governing Body of USAPA) that the President, on his own authority had decided to file a lawsuit (with his name on it) against the company for allegedly violating Status Quo. This was done without the knowledge, debate, approval or direction of the BPR. As a matter of fact, we have come to discover that two of the other elected officers were not informed that this lawsuit was even being contemplated. The Executive Vice President and the Secretary/Treasurer had no idea that the president had been meeting with a law firm in New York (not Lee Seham, general counsel for USAPA) for several weeks. We believe this is a clear violation of the USAPA Constitution which states that the President, IN CONCERT with the BPR, will take action:

SECTION 8. DUTIES OF NATIONAL OFFICERS

A. President

The President is the chief executive officer of the Association, charged with establishing, in concert with the Membership and the Board of Pilot Representatives, the goals and objectives of the Association and with taking the actions necessary to attain those goals and objectives, and carry out any other duties USAPA may request.

Our objection is not so much to the actual lawsuit. For the purpose of this update, we are not concerned with the merits of the lawsuit, and are not debating whether or not it was a good idea to file it. That is all secondary to what we see as a major violation of the constitution and the underlying intent which supposedly lead to the creation of USAPA.

From what little we have been told, the only advisors to this potentially multi-million dollar commitment of pilot dues were the Vice President Randy Mowery, appointed committee member Paul DiOrio, and appointed committee member Tracy Parrella. The directly elected governing body was deliberately omitted from the process under the veil of confidentiality. One man, One vote! During the conference call in which the BPR received a briefing from the president about this new lawsuit, David Braid raised strenuous objections to the way the lawsuit was filed without board approval and stated that he believed the President had taken unilateral action for which he lacks the authority and was also contrary to the USAPA Constitution. Two other board members (from another domicile) made a couple of weak comments expressing the same sentiment as David, but NO objections from ANY OTHER representatives were heard about allowing the President (one man) to neuter the governing body and set the precedent that one man (so long as it is the president) is no longer required to seek approval (or now, even forgiveness) for committing the union to any imaginable course of action. This time, there was not even a retroactive resolution giving the President the authority to file this lawsuit and imperil the association for what could be millions of dollars. The Board is not even on record as having a voice whether we objected to, or agreed with the one man who filed this lawsuit with an unknown law firm. The same law firm, by the way, that the BPR had formerly agreed to hire under the ruse that it was going to be used for the Pension Investigation Committee only. The Board was never told that another lawsuit to be brought by this firm was even a possibility. The Board never had a chance to interview O'Dwyer and Bernstien, or ask any questions at all before the fact. Your PHX representatives feel mislead (at the least), and flat-out lied to (at the most) about the reason for hiring this new NY law firm.

The governing body of USAPA (the BPR) was not allowed to ask questions or debate the pros and cons of this drastic action. Consider the possible ramifications of filing this type of lawsuit which claims "status quo" violations in the midst of ongoing NMB mediation. What is the NMB going to do? Will they suspend negotiations while this works its way through the court system? Accusing a party of negotiating in "bad faith" is a serious charge and the NMB could very well decide to wait and let the court decide before proceeding. Why would the NMB waste their time and resources if it can be proven that one side is operating in bad faith? Would the NMB release us for self help? With about 20 open sections, we think this is not likely. It would be impossible to close a contract in 30 days with that much bramble to cut through. After all, the RLA is designed to sustain air and rail commerce, not to shut down airlines. How long will this case take to settle? Does it improve the pace of contract talks, or retard their progress? Will it remain in NY, or might it be consolidated in Arizona with the company's case? Can the company counter-sue? Could it harm accomplishing the constitution's date-of-hire mandate? How much money did the President, one man, bind this association for? How are we, the pilots, going to pay for yet another multi-million dollar lawsuit? Do the important committees take a budget cut in order to pay for one man's decision to file a law suit? What committees would the pilots (or the way things work right now, the president) like to give up or cut to pay for this action? Strike prep, Grievance, Training, Security, Aero-Medical, or even cancel the contract hotline again? Does the association spend what little reserve cash we have instead of saving it for a possible strike action? No money, no strike! We don't know because the opportunity to debate was taken from the board by the decisions of one man.

The most discouraging aspect of this entire episode was the complete acquiescence and obvious lack of outrage from the rest of the Board over neutering themselves. It was done with virtually no objection. The (optimistically hoped for) ends clearly justifies the means for everyone else within USAPA, but not for your PHX representatives. To us, a deal is a deal, and agreements among men are supposed to have meaning. The PHL, CLT and DCA reps discreetly handed one man the reins to this union and quietly bowed before the only vote that really counts for anything at all at USAPA- the President. Through the Board's lack of action, it has tacitly allowed the President to make any and all decisions on behalf of all US Airways pilots- all he has to say is that it was "for our own good," or that he had to "keep it confidential." Do not think for a minute that this "one man" will not claim this instance as iron-clad precedent justifying any future actions he may choose to take. We certainly hope that a merger deal does not come about anytime soon, or one man can made the deal for all of us. Maybe a merger with the Teamsters seems a good idea to that one man: line up and get your new union card! Maybe one man does not like his office and decides on his own that he will break the current contract and sign another one in a new location, a location more to one man's liking while disregarding the will of the Board and the wishes of the line pilots. One man could just sign a new CBA with the company on our behalf. Who knows what could happen now, but USAPA has certainly achieved its goal of, "one man, one vote!" We really didn't believe that's what the early promoters of USAPA meant, but given the lack of outrage, it appears so.

It has been said that people get the government, representation, union, or contract they deserve. In this case it is absolutely true. The pilots of US Airways (at least the supporters of one man, one vote) have gotten what they want and what they deserve. The President that has taken all power and control of the union (and your vote) for himself. If you are not outraged and you allow your representatives to continue to allow one man, with one vote to continue to dictate all policies to you and your representatives, then you will get the union you deserve. Your PHX reps objected to this taking of authority and setting of precedent, but we are a minority among the docile and silent voices of the Pilot Board of Representatives (8-3).

Allow the PHX representatives to be crystal clear so that there is no misunderstanding: The PHX reps are not advocating or suggesting a change of bargaining agents. We are merely telling the pilots, the supposed "stockholders" (and those responsible for ultimately paying the bills of this association) that change is needed immediately to bring USAPA back to the union that it was (notwithstanding the seniority dispute) envisioned and designed to be. If you, the so-called "directors of USAPA," want a change and if you want your one man, one vote (your vote) back, then you must tell your reps and the officers that you want your vote and control back for YOU to exercise. This "one man" rule cannot continue within an organization that purports to be any form of democracy.

Stand up for yourselves, or forever live under the boot of what someone else decides. This union should not be a cult of personality. Is this the President's union, or is it the pilot's union? The current President will not always be the President. Imagine if someone that you disagree with becomes President but still retains the authority that the "rubber stamp" Board has given to the current President. How will the line pilots stop a President's actions that you disagree with if you allow this "One man, One vote" to continue like it is? Do you want the USAPA that you voted for three-years ago, or do you want a union that is (by all accounts) far worse than the union you voted out?

 

[SparrowHawk]

Interesting. What percentage would you say are denied when you say "most?". I assume you mean Federal courts? And with your legal expertise, why do you think the courts mostly dismiss them?

Not even close to an expert, just well read as the law intrigues me. It started when I made a huge sale to the Law School Admission Service, the company that writes and administers the LSAT.

No most any court actually.

As to why? If the Plaintiff's case has even a shred of evidence or overall merit, then as a Judge I want to hear it. I certainly don't want to have the plaintiff appeal and have my ruling overturned! I've seen some real clinkers lawsuit wise get to Discovery, document production, pre trial motions and opening arguments before somebody wises up, pays a nominal settlement and the case disappears into the vapor.

IMO, no competent judge would dismiss a case like this one. USAP attorneys still have to file the dismissal motion on the long shot that the judge might buy the arguement

 

[cleardirect]

Not even close to an expert, just well read as the law intrigues me. It started when I made a huge sale to the Law School Admission Service, the company that writes and administers the LSAT.

No most any court actually.

As to why? If the Plaintiff's case has even a shred of evidence or overall merit, then as a Judge I want to hear it. I certainly don't want to have the plaintiff appeal and have my ruling overturned! I've seen some real clinkers lawsuit wise get to Discovery, document production, pre trial motions and opening arguments before somebody wises up, pays a nominal settlement and the case disappears into the vapor.

IMO, no competent judge would dismiss a case like this one. USAP attorneys still have to file the dismissal motion on the long shot that the judge might buy the arguement

Been filed and denied.

IV. CONCLUSION
IT IS, THEREFORE, ORDERED that the defendant’s motion to dismiss the complaint
filed by the plaintiff, or in the alternative to transfer this action to the Eastern District of New
York, or stay this action pending resolution of the action currently pending in the Eastern
District of New York (Doc. No. 37) is DENIED.

 

[Move2CLT]

Not even close to an expert, just well read as the law intrigues me. It started when I made a huge sale to the Law School Admission Service, the company that writes and administers the LSAT.

No most any court actually.

As to why? If the Plaintiff's case has even a shred of evidence or overall merit, then as a Judge I want to hear it. I certainly don't want to have the plaintiff appeal and have my ruling overturned! I've seen some real clinkers lawsuit wise get to Discovery, document production, pre trial motions and opening arguments before somebody wises up, pays a nominal settlement and the case disappears into the vapor.

IMO, no competent judge would dismiss a case like this one. USAP attorneys still have to file the dismissal motion on the long shot that the judge might buy the arguement

So what did you cite for your " most" opinion. You have to have some numbers.
And their motion was already denied. Friday is going to happen. It's an interesting coincidence that the DCA reps are now in a hurry to call a BPR meeting over info that was kept from them.

 

[BoeingBoy]

Been filed and denied.

I think SH meant that even in the face of the dismissal statistics, the union had to have it's legal team file for dismissal.

Jim

 

[BoeingBoy]

It's an interesting coincidence that the DCA reps are now in a hurry to call a BPR meeting over info that was kept from them.

From my perspective, I think the BPR and USAPA are running scared. I haven't seen any communications to the members by the DCA reps, but otherwise there was a lot of chest pounding and bluster until the judge expedited the hearing - "show management we're fed up and serious" and all that - but now everyone is in a hurry to put out messages effectively saying "forget what we said, don't do anything to show management how fed up and serious you are."

There's even been talk on a private east pilot's board that USAPA should pay protect anyone harmed by following USAPA's previous urgings. That could, repeat could, get to be a huge cost very quickly.

It'll be interesting to see what, if anything, comes out of this special BPR meeting...

Jim

 

[SparrowHawk]

I think SH meant that even in the face of the dismissal statistics, the union had to have it's legal team file for dismissal.

Jim

Exactly Jim! Sorry for the miscommunication.

 

[Move2CLT]

And the stand down order finally comes down from Cleary. Too little to late.

 

[Jester]

Time series analysis uncovers a time dependent bias to account for differences in output. Lee's analysis zero's out any time dependence by accounting for differences in taxi times on account for when the taxi data was collected, namely weather. What's more, a time series analysis, standing alone, would make the company's case look better, not worse. THink of it this way: taxi times are going to be longer in Winter rather than anytime else in the year. By including Winter as well as Spring Summer and Fall, and comparing that aggregate to the SUmmer of '11, they are actually reducing the significance of the East Summer '11 stats.

This is completely the wrong way to view the problem for the simple reason is that you assume that addition of variables will somehow automatically "fix" a problem, that may or may not even exist. We can only discover a problem, if and when, the DW deviates significantly from the expected value of 2.0. Let's recall that DW looks for potential excluded variables, the simple inclusion of additional variables may or may be correct the problem of but it will probably violate the guiding principle of Occam's Razor. Adding variables because you THINK might eliminate a problem real or imagined, may actually make the statistical model less reliable and more complicated, when a simple DW test would be better starting point.

"When" the taxi times, standing alone, are collected can make a difference. All time series analysis does is identify to the statistician that "hey, there's a time dependence here." So the statistician then needs to account for that time dependence, which Dr. Lee does with his weather factors. As a professional pilot, I can't think of any other factors other than rain, snow and wind to account for whatever time dependence exists in taxi times.

I think you are confusing bad data collection technique with the concept of "time" in Time Series data. For example, of course, the first flights of the day should have a greater chance of an on-time departure versus flights later in the day. Of course, certain times of the day are more likely to experience longer taxi times than during other times of the day, as in PHX the mid-afternoon flights have shorter taxi times due to a fewer number of aircraft movement (something that you didn't give consideration). Any researcher collecting data needs to be aware the potential factors which may skew the data and either obtain a representive sample, address the matter in the analysis with dummy variables, or remove that data entirely from the analysis. When Dr. Lee's study covers something of around 18 months of data, and even with all the dummy variables for rain, snow, wind, etc., that does not change that the data is still in a time series format, and the potential of serial corelation still exist.

One final note,time series analysis has no relevance in the comparisons between East vs West and East vs Express as the time of data collections are the same for all three subpopulaitons. The only possibility is when comparing before and after but as I've pointed out above, Lee identified the variables that might indicate a time dependence as between May June July taxi times versus aggregate yearly taxi times.

I will give you examples of where there is the possibility of differences which may explain the longer taxi times (although I do not pretend to know if they would be statistically significant):
Age of Aircraft? Maybe the East aircraft are older and "hitting the wall" in terms of being more reliable, especially during the summertime?
Number of Aircraft Movement during West Arrivals in CLT? The West planes maybe arriving at a less busier time than the average or typical East flights?
Weather issues away from CLT? Generally speaking, the East side appears to me to suffer from more difficult weather in the northeast part of the US, and aircraft are away from the gates, but stalled from departure? (I assume that is part of the taxi time?)

One of the biggest problems with Dr. Lee's analysis is that he fails to explain approximately 50% of the identified causes for delays with the East pilots based upon the R-Squared, and he does not mention the DW test score. Clearly there are other explanations for the cause for the delays on both East and West sides, but they may be different reasons entirely. If Dr. Lee's analysis had a Degrees of Freedom = 900, Z-Score = 17, T-Scores = 12, R-Square = .95, and a Durbin-Watson test = 2, then there will be little wiggle room to argue the points outside of some possible multi-collinearity, but his analysis in its current form is a good start and incomplete.

We need to remember that errors are our friends in terms of statistical analysis as they provide clues to what maybe missing, and help us avoid the mistake of committing Type I errors. Point of fact, other techniques, in particular, ANOVA and ARIMA, rely heavily upon errors in their predictive capabilities and hypothesis testing, so we could not be so quick to accept the Dr. Lee's hypothesis until additional information has been presented.

So Deems Jester.

 

[BoeingBoy]

You're both way over my head but let's also remember that Lee wrote his report for the Judge, not a peer in his field. Specific details (this DW thing?) may have been omitted for simplification. The proof of the pudding will be any examination/cross that Lee undergoes. If USAPA's legal representation is any good, they should pay someone to question the same things Jester is questioning or more.

 

[SparrowHawk]

That's way way way above my pay grade Jester and i agree with Jim.

There is one thing I haven't seen anyone express an opinion on and I'm curious as to the answer to this question. Everyone assumes (including me) that US will prevail and the injunction will be granted with possible damages.


Suppose the judge rules in USAPA's favor, what happens next?

 

[BoeingBoy]

I'm certainly no legal eagle, but I assume USAPA might be awarded attorney's fees but that's about it I think. Otherwise, life continues on with the DJ hearings in PHX and USAPA's suit against the company in NYC.

Jim