Tiger 1050
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- Aug 4, 2007
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See. There is some common ground after all!
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US Airways Pilots' Labor Thread 5/19-5/26 READ THE FIRST POST
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cleardirect
Veteran
- May 24, 2008
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- #182
Was that section done by arbitration or negotiation?
And now we are going to have a federal injunction to settle what that section is going to be.
Again you had better be careful throwing around unique solutions. One of the “selling†points of the wonderful usapa DOH plan is that the C&R “protect†the west. As you are now, with the delicacy of a jackhammer trying to make. Those C&R are an illusion. That they can be negotiated away at anytime the majority feels they no longer serve a purpose.
So you admit that anything can be changed and the track record so far of usapa is what it is. Where is the integrity or trust that usapa will not simple negotiate away the west protect at the first chance?
ChuckBewFarley
Advanced
- Jul 31, 2007
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Presented without editorial comment- :blink:
USAPA Communications – May 21, 2009
WHY WE APPEAL
I. OUR CONSTITUTION DEMANDS IT
Article I, Section 8.D of the USAPA Constitution establishes that it is an Association objective to “maintain uniform principles of seniority based on date of hire and the perpetuation thereof, with reasonable conditions and restrictions to preserve each pilot’s unmerged career expectations.†A majority of US Airways pilots voted for USAPA and its Constitution. A two-thirds majority of USAPA members subsequently ratified the Constitution as amended. As a matter of law, the USAPA Constitution constitutes a contractual commitment between the Association and its members. While USAPA will comply with any applicable court order, USAPA considers itself under a constitutional obligation to make every reasonable effort to overturn any court order that is in conflict with the USAPA Constitution.
II. FAIRNESS DEMANDS IT
The facts have not changed. The Nicolau Award eliminated up to sixteen years of seniority for both “furloughees†and non-furloughees, a concept which is an anathema to the labor movement and was rejected by every other unionized employee group on US Airways property.
We place the term “furloughees†in quotes for two reasons. First, most of the East “furloughees†were back at work by the time of Arbitrator Nicolau’s decision, thanks to East attrition. Arbitrator Nicolau was aware of this fact, but concluded that ALPA Merger Policy forbade him from taking this truth into consideration.
Second – there are now over 140 West furloughees. Though they currently “bring no jobs to the table,†these West furloughees claim the right to exercise their seniority to be recalled to future vacancies within East Operations prior to new-hire East pilots. USAPA supports their position. Fair is fair. There is a reason why seniority is a core value of the labor movement – it reflects our determination to honor a man’s or woman’s life investment. And ultimately, our respect for this concept benefits everyone.
III. WE EXPECT TO WIN
Our republic is based on the rule of law. Even federal judges must conform their actions to existing statutes and prior case law or precedent.
Before the trial had even commenced, USAPA was subject to a series of court rulings that prevented the Association from presenting its case to the jury. The following is merely a sampling of what USAPA considers to be appealable error. To the extent possible, we rely on verbatim quotes from the relevant sources so that you are free to draw your own conclusions.
Inability to Challenge The Nicolau Award
Throughout the litigation, USAPA presented case law that supports a labor union’s right to re-visit seniority determinations, which had been “instituted through a disputed arbitration proceeding.†Barton Brands, Ltd. v. NLRB, 529 F.2d 793, 799-800 (7th Cir. 1976) citing Associated Transport, Inc., 185 N.L.R.B. 631 (1970). Neither the court nor the Plaintiffs ever distinguished this case law.
Nevertheless, the court issued the following prohibition:
No evidence will be admitted to challenge the process, procedure, or decision of the Nicolau Award.
Docket 362 at 2.
Actions of Every Other Union on the Property
In view of the DFR standard that a union need only operate within a “wide range of reasonableness,†USAPA sought to present evidence that every other unionized employee group at US Airways has committed to seniority integration on a date-of-hire basis without any conditions and restrictions designed to protect their West counterparts.
Nevertheless, the court issued the following prohibition:
Generally, however, it would be burdensome, confusing, and a waste of time to introduce evidence of other integrations resulting in a date-of-hire system, and such evidence will be excluded under Fed. R. Evid. 403.
Docket 362 at 2.
Date of Hire as the Gold Standard
The Ninth Circuit Court of Appeals, to which the Arizona district court is subordinate, has held that “the implementation of a date of hire consolidation is well within the ‘wide range of reasonableness [which] must be allowed a statutory bargaining representative in serving the unit it represents….’†Laturner v. Burlington, Inc., 501 F.2d 593, 599 (9th Cir. 1974). Indeed, the Ninth Circuit quoted with approval the following statement found in a decision of the United States Supreme Court: “Integration of seniority lists should ordinarily be accomplished on the basis of each employee’s length of service with this original employer….†Humphrey v. Moore, 375 U.S. 335, 348 n. 10 (1964) quoting from Kahn, Seniority Problems in Business Mergers, 8 Ind. & Lab. Rel. Rev. 361, 378 (1955).
In the by now familiar Rakestraw decision, the Seventh Circuit held: “A rational person could conclude that dovetailing seniority lists in a merger … serves the interests of labor as a whole.†Rakestraw v. United Airlines, Inc., 981 F.2d 1524, 1533 (7th Cir. 1992).
Nevertheless, the court instructed the jury:
In this case, a general preference for any particular seniority system other than the Nicolau Award is not, standing alone, a legitimate union objective.
Docket 459 at 7.
ALPA Merger Policy
USAPA had documentary evidence and witnesses available to testify that ALPA Merger Policy did not, in fact, allow an ALPA-approved arbitrator to follow his conscience. Rather, as argued in the West Merger Representatives’ own brief (which USAPA was not permitted to enter into evidence), ALPA Merger Policy had undergone a political process whereby consideration of DOH seniority – the industry gold standard – was deliberately excised from ALPA Merger Policy criteria. Moreover, USAPA had witnesses prepared to testify that these modifications to ALPA Merger Policy were implemented for the specific purpose of subordinating the interests of US Airways pilots to other pilot groups.
Nevertheless, USAPA was not permitted to present this evidence pursuant to the court’s order that “the Court (including the jury) is not charged with deciding the independent merits of ALPA Merger Policy.†Docket 362 at 2. Instead, the jury was instructed that the Transition Agreement “required†USAPA to “adopt the Nicolau Award as its bargaining position and use all reasonable means at its disposal to compel the employer to accept and implement the Nicolau Award.†Docket 459 at 7.
In sum, despite USAPA’s legal right to revisit the proposal of a de-certified predecessor on a good faith basis, it was not permitted to present evidence that ALPA Merger Policy constituted a politicized process that was deliberately designed to produce a result that deviated from core values of the labor movement.
No Jurisdiction – The Breeger Case
On October 28, 2009, certain former Empire and Trump Shuttle pilots initiated a DFR lawsuit against USAPA in a North Carolina federal district court on the grounds that USAPA’s seniority integration proposal should have provided for retroactive application of DOH principles to previously-implemented integrated seniority lists. This litigation is commonly referred to as the Breeger litigation.
On April 23, 2009, United States Magistrate Judge David S. Cayer issued an order recommending dismissal of the action in its entirety due to a lack of subject matter jurisdiction. The order was based on existing case law holding that a federal court has no jurisdiction to consider whether a labor union’s proposal violates DFR standards until such time as that proposal has been implemented. Magistrate Cayer went so far as to state: “The parties have not cited, and the undersigned is unaware of, any published federal authority addressing whether a union’s conduct may give rise to a ripe DFR claim prior to the conclusion of negotiations with the employer.
The Breeger decision directly referenced the Addington litigation and acknowledged that, while the Arizona federal court had previously declined to dismiss that case due to plaintiffs’ allegations that USAPA had deliberately delayed the negotiation process, the plaintiffs had since that time “disavowed†their allegations of delay. As the Breeger court further observed, USAPA was awaiting leave from the Addington court to file a summary judgment motion. Unfortunately, such leave was never granted.
Same facts, different court, different result.
Magistrate Cayer’s order has since been adopted by the United States District Court for the Western District of North Carolina.
Lack of Bad Faith Instruction
The Plaintiffs’ case was founded on the allegation that USAPA has acted in “bad faith.†Both the Ninth Circuit and the United States Supreme Court have held that, in order to establish bad faith, plaintiffs must show “substantial evidence of fraud, deceitful action or dishonest conduct.†See, e.g., Beck v. UCFW, Local 99, 506 F.3d 874 (9th Cir. 2007) quoting Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 299 (1971).
Nevertheless, the court provided no such instruction to the jury despite USAPA’s specific request.
We fervently believe that the industry standard of date-of-hire seniority – particularly when combined with conditions and restrictions of 10 years duration, which were specifically designed to protect the interests of junior West pilots – cannot possibly be characterized as evidence of “fraud, deceitful action or dishonest conduct.â€
Those of you who have supported USAPA’s efforts may ask yourselves whether this is a fair characterization of your own motives.
USAPA appeals in defense of its Constitution, its members, and in defense of the labor movement as a whole.
USAPA Communications – May 21, 2009
WHY WE APPEAL
I. OUR CONSTITUTION DEMANDS IT
Article I, Section 8.D of the USAPA Constitution establishes that it is an Association objective to “maintain uniform principles of seniority based on date of hire and the perpetuation thereof, with reasonable conditions and restrictions to preserve each pilot’s unmerged career expectations.†A majority of US Airways pilots voted for USAPA and its Constitution. A two-thirds majority of USAPA members subsequently ratified the Constitution as amended. As a matter of law, the USAPA Constitution constitutes a contractual commitment between the Association and its members. While USAPA will comply with any applicable court order, USAPA considers itself under a constitutional obligation to make every reasonable effort to overturn any court order that is in conflict with the USAPA Constitution.
II. FAIRNESS DEMANDS IT
The facts have not changed. The Nicolau Award eliminated up to sixteen years of seniority for both “furloughees†and non-furloughees, a concept which is an anathema to the labor movement and was rejected by every other unionized employee group on US Airways property.
We place the term “furloughees†in quotes for two reasons. First, most of the East “furloughees†were back at work by the time of Arbitrator Nicolau’s decision, thanks to East attrition. Arbitrator Nicolau was aware of this fact, but concluded that ALPA Merger Policy forbade him from taking this truth into consideration.
Second – there are now over 140 West furloughees. Though they currently “bring no jobs to the table,†these West furloughees claim the right to exercise their seniority to be recalled to future vacancies within East Operations prior to new-hire East pilots. USAPA supports their position. Fair is fair. There is a reason why seniority is a core value of the labor movement – it reflects our determination to honor a man’s or woman’s life investment. And ultimately, our respect for this concept benefits everyone.
III. WE EXPECT TO WIN
Our republic is based on the rule of law. Even federal judges must conform their actions to existing statutes and prior case law or precedent.
Before the trial had even commenced, USAPA was subject to a series of court rulings that prevented the Association from presenting its case to the jury. The following is merely a sampling of what USAPA considers to be appealable error. To the extent possible, we rely on verbatim quotes from the relevant sources so that you are free to draw your own conclusions.
Inability to Challenge The Nicolau Award
Throughout the litigation, USAPA presented case law that supports a labor union’s right to re-visit seniority determinations, which had been “instituted through a disputed arbitration proceeding.†Barton Brands, Ltd. v. NLRB, 529 F.2d 793, 799-800 (7th Cir. 1976) citing Associated Transport, Inc., 185 N.L.R.B. 631 (1970). Neither the court nor the Plaintiffs ever distinguished this case law.
Nevertheless, the court issued the following prohibition:
No evidence will be admitted to challenge the process, procedure, or decision of the Nicolau Award.
Docket 362 at 2.
Actions of Every Other Union on the Property
In view of the DFR standard that a union need only operate within a “wide range of reasonableness,†USAPA sought to present evidence that every other unionized employee group at US Airways has committed to seniority integration on a date-of-hire basis without any conditions and restrictions designed to protect their West counterparts.
Nevertheless, the court issued the following prohibition:
Generally, however, it would be burdensome, confusing, and a waste of time to introduce evidence of other integrations resulting in a date-of-hire system, and such evidence will be excluded under Fed. R. Evid. 403.
Docket 362 at 2.
Date of Hire as the Gold Standard
The Ninth Circuit Court of Appeals, to which the Arizona district court is subordinate, has held that “the implementation of a date of hire consolidation is well within the ‘wide range of reasonableness [which] must be allowed a statutory bargaining representative in serving the unit it represents….’†Laturner v. Burlington, Inc., 501 F.2d 593, 599 (9th Cir. 1974). Indeed, the Ninth Circuit quoted with approval the following statement found in a decision of the United States Supreme Court: “Integration of seniority lists should ordinarily be accomplished on the basis of each employee’s length of service with this original employer….†Humphrey v. Moore, 375 U.S. 335, 348 n. 10 (1964) quoting from Kahn, Seniority Problems in Business Mergers, 8 Ind. & Lab. Rel. Rev. 361, 378 (1955).
In the by now familiar Rakestraw decision, the Seventh Circuit held: “A rational person could conclude that dovetailing seniority lists in a merger … serves the interests of labor as a whole.†Rakestraw v. United Airlines, Inc., 981 F.2d 1524, 1533 (7th Cir. 1992).
Nevertheless, the court instructed the jury:
In this case, a general preference for any particular seniority system other than the Nicolau Award is not, standing alone, a legitimate union objective.
Docket 459 at 7.
ALPA Merger Policy
USAPA had documentary evidence and witnesses available to testify that ALPA Merger Policy did not, in fact, allow an ALPA-approved arbitrator to follow his conscience. Rather, as argued in the West Merger Representatives’ own brief (which USAPA was not permitted to enter into evidence), ALPA Merger Policy had undergone a political process whereby consideration of DOH seniority – the industry gold standard – was deliberately excised from ALPA Merger Policy criteria. Moreover, USAPA had witnesses prepared to testify that these modifications to ALPA Merger Policy were implemented for the specific purpose of subordinating the interests of US Airways pilots to other pilot groups.
Nevertheless, USAPA was not permitted to present this evidence pursuant to the court’s order that “the Court (including the jury) is not charged with deciding the independent merits of ALPA Merger Policy.†Docket 362 at 2. Instead, the jury was instructed that the Transition Agreement “required†USAPA to “adopt the Nicolau Award as its bargaining position and use all reasonable means at its disposal to compel the employer to accept and implement the Nicolau Award.†Docket 459 at 7.
In sum, despite USAPA’s legal right to revisit the proposal of a de-certified predecessor on a good faith basis, it was not permitted to present evidence that ALPA Merger Policy constituted a politicized process that was deliberately designed to produce a result that deviated from core values of the labor movement.
No Jurisdiction – The Breeger Case
On October 28, 2009, certain former Empire and Trump Shuttle pilots initiated a DFR lawsuit against USAPA in a North Carolina federal district court on the grounds that USAPA’s seniority integration proposal should have provided for retroactive application of DOH principles to previously-implemented integrated seniority lists. This litigation is commonly referred to as the Breeger litigation.
On April 23, 2009, United States Magistrate Judge David S. Cayer issued an order recommending dismissal of the action in its entirety due to a lack of subject matter jurisdiction. The order was based on existing case law holding that a federal court has no jurisdiction to consider whether a labor union’s proposal violates DFR standards until such time as that proposal has been implemented. Magistrate Cayer went so far as to state: “The parties have not cited, and the undersigned is unaware of, any published federal authority addressing whether a union’s conduct may give rise to a ripe DFR claim prior to the conclusion of negotiations with the employer.
The Breeger decision directly referenced the Addington litigation and acknowledged that, while the Arizona federal court had previously declined to dismiss that case due to plaintiffs’ allegations that USAPA had deliberately delayed the negotiation process, the plaintiffs had since that time “disavowed†their allegations of delay. As the Breeger court further observed, USAPA was awaiting leave from the Addington court to file a summary judgment motion. Unfortunately, such leave was never granted.
Same facts, different court, different result.
Magistrate Cayer’s order has since been adopted by the United States District Court for the Western District of North Carolina.
Lack of Bad Faith Instruction
The Plaintiffs’ case was founded on the allegation that USAPA has acted in “bad faith.†Both the Ninth Circuit and the United States Supreme Court have held that, in order to establish bad faith, plaintiffs must show “substantial evidence of fraud, deceitful action or dishonest conduct.†See, e.g., Beck v. UCFW, Local 99, 506 F.3d 874 (9th Cir. 2007) quoting Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 299 (1971).
Nevertheless, the court provided no such instruction to the jury despite USAPA’s specific request.
We fervently believe that the industry standard of date-of-hire seniority – particularly when combined with conditions and restrictions of 10 years duration, which were specifically designed to protect the interests of junior West pilots – cannot possibly be characterized as evidence of “fraud, deceitful action or dishonest conduct.â€
Those of you who have supported USAPA’s efforts may ask yourselves whether this is a fair characterization of your own motives.
USAPA appeals in defense of its Constitution, its members, and in defense of the labor movement as a whole.
aquagreen73s
Veteran
- Aug 22, 2005
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- 1,877
Go gettem boys! Charge that hill!
hp_fa
Veteran
- Feb 19, 2004
- 3,290
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Due to this wonderful browser feature called "tabs" I can stay on all day long and just update the screen from time-to-time. It isn't like I am actually lurking for hours.
As for your question the truth is that I am factually unaware of any modification(s) recently in any "binding" AWA contract, so I can't answer the question. If someone cares to inform me then I might be able to answer the question but I try not to give answers to questions that I know nothing about.
See, I am not ignoring you....
cleardirect
Veteran
- May 24, 2008
- 6,234
- 9,749
- Banned
- #186
Gee Chuck which rep are you? Maybe the author or a national officer. This has not been released yet. How did you get a copy you insider?
OK! If that is the basis for the usapa appeal I feel much better now. I went from 95% confident to 99% confident that the verdict will be upheld.
Irrelevant. That is the word that the ninth circuit is going to come back with.
Anyone else notice a consistent theme running through the appeal whine? It has to do with HOW the Nicolau was done. Once again this case was about what usapa did not what Nicolau did. It usapa thinks that Nicolau was wrong, file a suit against Nicolau.
The judge quite clearly and on many occasions stated that this case is not about the award itself.
Pilots of the east. Prepared to be disappointed by your lawyer and your leadership again.
OK! If that is the basis for the usapa appeal I feel much better now. I went from 95% confident to 99% confident that the verdict will be upheld.
Irrelevant. That is the word that the ninth circuit is going to come back with.
Anyone else notice a consistent theme running through the appeal whine? It has to do with HOW the Nicolau was done. Once again this case was about what usapa did not what Nicolau did. It usapa thinks that Nicolau was wrong, file a suit against Nicolau.
The judge quite clearly and on many occasions stated that this case is not about the award itself.
Pilots of the east. Prepared to be disappointed by your lawyer and your leadership again.
E
EastUS
Guest
"The AWA guys were all captains.." Wow!...So...ummm..there are no FO's out there at all?
The irony's truly stunning here, in that virtually all of the east folks have previously held that position....You know? = The ones you would have your 20 Something's Wunderkinder become "senior" to under nic? "it was a lot better to work for less but enjoy the position." Hmm...One might think some similar notions to be held by many out east. Factor that in whenever excessively thrashing west pom poms for nic about..and why the east people are supposedly such fools for not instantly signing on for nic, in the futile fantasy of instantly obtaining some magically wonderful contract.
hp_fa
Veteran
- Feb 19, 2004
- 3,290
- 178
Poor analogy sir. I suspect that you know it.
aquagreen73s
Veteran
- Aug 22, 2005
- 1,979
- 1,877
I see your confusion, so let me explain. All of those years where AWA was paying "gutter" wages were in the 80s and 90s. All of the pilots hired before '98 are all captains. The timeframe NYC mentioned covers those pilots at AWA and all of them are captains, less 80 or so downgrades thanks to USAPA. Go back to 2005 and contrast the career of an 88 hire at AWA as compared to one at US Air. There's no comparison. Even the money adds up in the AWA pilot's favor as they haven't spent any time on the street. Plus, they've been captains for 75% of the time or more! Try to put a price tag on that. It's a hell of a lot better than yanking the gear for two decades out of PHL, all for the temporary benefit of being top paid. I'll take consistent gutter pay plus the left seat versus a US Air career any day. Lots of your fellow Easties agree with this sentiment as they went off to find greener pastuers post 9/11. And don't forget that two dozen went to AWA after 9/11.
In the meantime, only pilots hired in '86 or before are in the left seat on the East and even still, those captains are now working for $50 an hour less than ALK, $40 less than AMR, $30 less than DAL/NWA and CAL, and even UAL with their draconian cuts are making $12 an hour more. Then we haven't even started talking about work rules as compared between AWA and East. How about 25 days vacation for 99 hires? How about 86 hour lines with 14 days off a month for a middle line holder?
I. Exactly why you were sued and lost.
II. See roman numeral I
III. Again, see roman numeral I.
I fervantly believe that the industry standard is to honor contractual obligations. Further, the characterization of deceitful and dishonest action is appearant in your own propaganda. News flash, the West pilots are not "junior" they are equall all throughout the ranks of the seniority list. That you consider them "junior" is very telling of your position toward them and the motivation for your illegal actions.
nycbusdriver
Veteran
All captains? No one flew in the right seat?
Besides, you're rhetoric is falling on deaf ears here. I was a 737 captain at Piedmont in 1984. I'm not at all impressed with your argument.
aquagreen73s
Veteran
- Aug 22, 2005
- 1,979
- 1,877
I'll explain again.
Every pilot hired during the "gutter" years has spent 75% or more of their tenure in the left seat. Compare any aspect of an 88 hire at the East to that of an 88 hire on the West. Even with the top pay on the East, the AWA guy was much better off as the dollar difference was vastly reduced, and if not eliminated entirely, when the East guy hit the street for several years and then came back for several more as a bottom F/O under LOA 93. All East guys hired after 88 have been really in the tank as they spent a heck of a lot of time on furlough, only a small time making the big dollars, and then came back from a deep furlough list only to yank gear out of garden spots such as PHL.
You shouldn't brag about the "top pay" bit without telling the full story, just as I'll tell my story: in 1984 I was a freshman in high school.
E
EastUS
Guest
Sounds like you guys have got it truly great then, and all of us that have seen W2's of over $200K could really learn a lot from you west folks. Additionally; I can now see no possible, logical reason for the west to ever complain again about seperate operations at all.
nostradamus
Veteran
- Dec 7, 2004
- 2,038
- 0
I believe the contract for America West pilots was ratified at the very end of 2003. I have a link below that refers to this.
Contract, end of year 2003 for AWA pilots
E
EastUS
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