US Airways Pilots' Labor Thread 7/14-7/21 NO PERSONAL REMARKS

[Bear96]

Bad attempt at humor.

However I do think this is a fascinating case being watched by many with considerable interest.

I agree it is a fascinating case in many respects. But not because the issue of whether a successor is bound by a predecessor's agreements is some cutting-edge area of law.

Or to put it differently - what other way could we have fought this?

Fought what - the Nic award?

The Nic award should not have been fought at all. If one side is not prepared to live with the results of arbitration, whatever those results are (and the worst possible outcome should be considered), it should avoid arbitration by hammering out an agreement with the other side well before an arbitrator becomes involved. A party should never go into binding arbitration thinking that if it does not like the results, it can just "fight" it. That approach shows a profound misunderstanding of the law.

 

[Hate2fly]

Yup.

It boils down to one simple issue: A group that agreed to binding arbitration but did not like the outcome is now trying ignore it to the detriment of the other side.

Courts do not like that.

We know your boy the Judge doesn't like us in the east! He seems to be having trouble telling us what we can and cannot do! That darn RLA and NMB keep getting in his way! Poor guy, you boys out west have really put him in a bad spot.
The order reads as follows:

IT IS ORDERED THAT counsel for Plaintiffs, USAPA, and US Airways appear on July 16, 2009, at 10:00 a.m. for further argument regarding injunctive relief. In particular, the discussion will address the following issues: 1) The mediation process outlined in Section 6 of the Railway Labor Act; 2) The applicability of that process to CBA negotiations in light of section V.G of the Transition Agreement; 3) USAPA's ability to justify separate CBA negotiations; 4) USAPA's ability to call a strike of some or all pilots with respect to single or separate CBA negotiations; 5) Plaintiffs' potential entitlement to damages if it is proven that USAPA negotiates separate CBA's in bad faith to evade an injunction remedy for breach of duty of fair representation.

Counsel may appear by telephone or in person.


DATED this 14th day of July, 2009.

Neil V. Wake
United States District Judge

 

[Piedmont1984]

Fought what - the Nic award?

The Nic award should not have been fought at all. If one side is not prepared to live with the results of arbitration, whatever those results are (and the worst possible outcome should be considered), it should avoid arbitration by hammering out an agreement with the other side well before an arbitrator becomes involved. A party should never go into binding arbitration thinking that if it does not like the results, it can just "fight" it. That approach shows a profound misunderstanding of the law.

I agree, the east should not have entered into binding arbitration. But I don't see how we could have avoided it.

Also, if it is a law, where is it codified? Is it not more accurate to describe it - binding arbitration - as being custom, usage and precedent. A widely accepted mechanism upon which labor law is based, but which itself does not constitute codified law - and therefore, can very well be challenged?

At the risk of getting a tsunami of disparaging comments - I know of at least one attorney who agrees.

 

[Bear96]

I agree, the east should not have entered into binding arbitration. But I don't see how we could have avoided it.

By compromising during negotiations.

Also, if it is a law, where is it codified? Is it not more accurate to describe it - binding arbitration - as being custom, usage and precedent. A widely accepted mechanism upon which labor law is based, but which itself does not constitute codified law - and therefore, can very well be challenged?

The Federal Arbitration Act ("FAA") is one example of where the binding nature of certain arbitration decisions is codified. For arbitration agreements and decisions not covered by the FAA, there is a long (and growing) list of U.S. Supreme Court decisions establishing that courts look favorably on arbitration decisions and look unfavorably on bogus attempts to ignore or overturn them, outside of certain very specific grounds which do not apply in this case. With a common law system as the U.S. has, a principle that is well-established in case law precedent is effectively the same as being "codified" in a statute. (which can also be challenged in the courts, by the way.)

At the risk of getting a tsunami of disparaging comments - I know of at least one attorney who agrees.

Sorry, not sure if I am following that last bit. Agrees with what, exactly?

 

[hp_fa]

I am off to court. Be back later.

 

[Piedmont1984]

By compromising during negotiations.


The Federal Arbitration Act ("FAA") is one example of where the binding nature of certain arbitration decisions is codified. For arbitration agreements and decisions not covered by the FAA, there is a long (and growing) list of U.S. Supreme Court decisions establishing that courts look favorably on arbitration decisions and look unfavorably on bogus attempts to ignore or overturn them, outside of certain very specific grounds which do not apply in this case. With a common law system as the U.S. has, a principle that is well-established in case law precedent is effectively the same as being "codified" in a statute. (which can also be challenged in the courts, by the way.)


Sorry, not sure if I am following that last bit. Agrees with what, exactly?

Refresh my memory. What was the west's compromise position again, during negotiations or at Wye River?

Agrees that a binding arbitration decision can be successfully challenged in this case.

 

[Bear96]

Refresh my memory. What was the west's compromise position again, during negotiations or at Wye River?

I have not been nearly as involved as others in following the minutiae of this case so it would be best to ask someone else that question. Additionally, I have no interest in rehashing every detail of what let up to where things are now. There are thousands upon thousands of posts over the past couple years here that have been doing that and it serves no useful purpose to revisit those events yet again. The time to make those arguments was during the arbitration proceedings.

In any cease, it has nothing to do with my point, which is that from what I can see, the main reason this issue went to arbitration was because the East refused to budge off of its DOH position and refused to follow the seniority intergation guidelines. (And remember, I only said this in response to a question you posed to me.)

Agrees that a binding arbitration decision can be successfully challenged in this case.

On what grounds?

 

[Hate2fly]

Refresh my memory. What was the west's compromise position again, during negotiations or at Wye River?

Agrees that a binding arbitration decision can be successfully challenged in this case.

Freund tried to tell the west mec late August 2005

I think the pressures and risks are all on your side of the transaction, not the US Airways side.

The judge who has been sheparding US Airways along for the last three years and two bankruptcies will not let it collapse.

If flying tips to AAA during the transition period, even if we get a “goodâ€￾ integration, AAA pilots will be in seats and a “no bump/no flushâ€￾ provision will keep them there until a system bid allows seniority to operate unrestricted. That is not a good result for AWA pilots.

You should want AAA pilots furloughed…

And so much more!!!!!!

Remember to keep your "eye on the prize"

 

[cleardirect]

Freund tried to tell the west mec late August 2005

I think the pressures and risks are all on your side of the transaction, not the US Airways side.

The judge who has been sheparding US Airways along for the last three years and two bankruptcies will not let it collapse.

If flying tips to AAA during the transition period, even if we get a “goodâ€￾ integration, AAA pilots will be in seats and a “no bump/no flushâ€￾ provision will keep them there until a system bid allows seniority to operate unrestricted. That is not a good result for AWA pilots.

You should want AAA pilots furloughed…

And so much more!!!!!!

Remember to keep your "eye on the prize"

And this has what to do with an injunction about to be filed in July 2009?

 

[nycbusdriver]

I am off to court. Be back later.

Hope the judge is lenient. Ignorance of the law is no excuse. Maybe it'll just be a fine and community service.

(When did this forum become Twitter, BTW?)

 

[ableoneable]

QUOTE (hp_fa @ Jul 16 2009, 11:51 AM)
I am off to court. Be back later.

QUOTE (nycbusdriver)
Hope the judge is lenient. Ignorance of the law is no excuse. Maybe it'll just be a fine and community service.

(When did this forum become Twitter, BTW?)

I think he is saying he is going to Judge Wake's courtroom.

There is a hearing today on the final form of the injunction.

Update: The hearing is over. It appears as though USAPPA will be enjoined from separate section six negotiations.

 

[cleardirect]

Hope the judge is lenient. Ignorance of the law is no excuse. Maybe it'll just be a fine and community service.

(When did this forum become Twitter, BTW?)

Agreed, I hope that Seham does not have to spend to much time in the PHX heat. Being an east coaster Seham might be a bit soft. Sheriff Joe likes to put people in tents with no AC and give them pink uniforms.

 

[hp_fa]

I am back from the court hearing.

First, the injunction will be issued by the close of business tomorrow. It was not stated but I also expect that the formal entry of judgment will be made at the same time. If so, USAPA's appeal clock will begin its 30-day countdown.

Now to my notes. As a preface I would expect that one side or the other will have a transcript available at some point, probably mid-week of next week. So, if you don't believe what I post you are free to fact-check me against the transcript when it becomes available.

The plaintiffs were represented, in person, by Marty Harper, Don Stevens, Katie Brown and Andy Jacob. Defendant USAPA was represented by Nick Grannath and Lucas Middlebrook, both telephonically. US Airways was represented, in person, by Robert Siegel.

The Court opened the discussion with the comment that it was seriously considering granting the plaintiffs relief and started the discussion with a discussion of Section 5(G) of the Transition Agreement. Before this ever really got going Grannath interrupted to lodge a standing objection to this becoming an evidentiary hearing and took a swipe at plaintiffs' counsel and Marty Harper stood and addressed the Court and was clearly upset by Grannath's assertions regarding the plaintiffs' counsel and a document filed earlier in the day. (Harper tends not to get upset but he was clearly irked at Grannath’s comments.)

The discussion again began and Grannath again interrupted the Court. Once that was done the Court asked Siegel about paragraph 5 (G) of the TA and Siegel stated that the paragraph had been added to the TA at the request of ALPA.

The discussion with Siegel continued with a discussion of the Bishop case (Bishop v. Air Line Pilots Association) that USAPA had contended provided a right to separate contracts for the represented group. Siegel, who argued that case to the 9th Circuit, stated that the Bishop holding does not provide a right to separate contracts, but does allow that to occur. Upon further questioning by the Court, Siegel stated that he had read the transcript of the July 7th hearing and that he did not agree with USAPA's counsel Lucas Middlebrook's position taken in connection with Bishop and separate contracts.

Siegel went on to say that when the East contract becomes amenable on 1/1/10, they may petition the NMB to intervene into the proceedings, but that NMB intervention was discretionary and not certain to occur. He also stated that the Company was aware of the draft injunction and had been properly noticed of it and had not objected to the proposed injunction. (This means that the company made a decision to not interject itself into the proposed injunction proceedings and could accept the terms of the proposed injunction.)

Siegel went on to state that the Company's position was that it wanted a single CBA and that it wanted to avoid labor unrest. Also, he stated that the Company accepts the Nicolau seniority list as being the seniority list for any negotiations.

The Court then began a long series of hypothetical questions. Grannath continued to be objectionable through this period. (If you don't believe me, read the transcript when it becomes available.)

Grannath, as USAPA's counsel, was then allowed to present USAPA's position. He stated that he had three areas of concern. Specifically:
1. Court infringement on the jurisdiction of the System Board;
2. Court infringement on the jurisdiction of the National Mediation Board; and,
3. Court infringement upon USAPA by way of the Railway-Labor Act.

Grannath believes that USAPA is at a labor stalemate and that the proposed injunction limits USAPA's potential means to coerce concessions from the Company. Grannath stated that the union wants interim benefit increases from the Company. The Court asked Siegel what the Company's position was regarding that and Siegel stated that the Company is uninterested in interim agreements and wants a sole and single Collective Bargaining Agreement.

(Sometime during this period of time, while Grannath was speaking, Judge Wake shook his head no at what he was hearing from Grannath. Also, the Court seemed to me to be becoming increasingly upset with the arguments put forth by Grannath.)

Grannath then yielded to Lucas Middlebrook who attacked Siegel's view of the Bishop case. (This was laughable considering that Siegel was on the winning side of that case and had argued that case to the 9th Circuit.)

Middlebrook also argued to the Court that the jury verdict and the subsequent Court's view of the actions of USAPA do not allow the Court to infer that broader and/or future misconduct can be inferred by the Court moving forward.

The Court then asked Middlebrook that if a separate agreement was to be hypothetically be reached, who would vote on it, the side it was negotiated for or the entire union. Middlebrook had not ready answer to that question and fumbled trying to come up with an answer, even at one point pointing to the BPR for guidance. Andy Jacob, with the Court's permission, interjected that any such agreement would be required to be voted on by the entire membership.

The Court closed the Hearing and indicated that an Order would be lodged by the end of the day tomorrow.

 

[nic4us]

Refresh my memory. What was the west's compromise position again, during negotiations or at Wye River?

Piedmont,

It is my personal opinion that Wye river should have never happened. Having said that, if the West would have made any capitulation toward the east at Wye, the West members harmed by any change from the Nic would have had a DFR against ALPA for nearly the same reason the West won against USAPA. I believe Prater, Freund and others knew this when they talked of "mutual" solutions. They wanted the West to come up with some compromise, but the West reps were in absolutely no position to give anything up, less they be ostricized and/or sued.

I really do not recall, what did the east offer at Wye? What could they offer? If the east position was give us DOH or we vote ALPA out, then there is the connection between east ALPA and USAPA that Snoop says Harper is looking for.

 

[hp_fa]

OK, now a few impressions and observations.

One, at three different times during the Hearing widespread, but muted, laughter broke out in the Court. The Court never admonished quiet, probably because it is hard to not laugh at some of the things that were said today. I doubt that the transcript will note the laughter in the record, but it did happen.

Next, I continue to be amazed at USAPA's counsel and I don't mean this in a good way. Forget for a moment that I have stated that I believe the Addington class and the West as a whole have been victimized and are entitled to equitable relief in conjunction with their DFR case. Forget that I was an employee of AWA. Remember that I once worked in litigation. Seham and the members of his firm are, in my opinion, an embarrassment. They clearly are way outside the mainstream in their views and they are all objectionable in the way they practice law in front of at least this court. I don't know if this is how they practice in New York or Minnesota and I sure hope it isn't. They don't know when to shut up and have, in my opinion, made matters even worse.

I honestly believe that Judge Wake was trying to find any reason for diminishing the injunction that I expect to be issued tomorrow. I doubt that he was simply doing this to make a strong record in the case, but rather to be really, really fair to the defense, perhaps even to the partial detriment of the plaintiffs. However the folks at SSM&P never seemed to grasp that and continued to dig themselves in deeper and deeper. In fact they have now dug themselves in so deep that I honestly don't think that they have any chance to prevail on appeal. The last two Hearings have taken away any and all doubt concerning that and the 9th Circuit will see all the relevant portions of these last two transcripts.

OK, you can now remember that I was an employee of AWA and that I believe the Addington class were victimized in this whole mess.

I strongly suggest that all of the pilots, MIGS or not, get a hold of the transcripts of 7/7/09 and the one from today and read them, as well as the Order that the Court will issue by the end of the day tomorrow. Once you read all of this ask yourself whether or not this is really how union business should be transacted and what do you do going forward.