US Pilots Labor Discussion 10/13-- STAY ON TOPIC AND OBSERVE THE RULES

[cleardirect]

HP-FA.. you sound like the legal expert here, when in reality I think you have no clue.

Silver will dismiss this in a NY minute.

Then what?????

Then the company has to make a decision. Do they live up to their T/A agreement or do they break that agreement? What if they decide they have to use the Nicolau because the court did not tell them that they could use something else?

If they decide to use something other than Nicolau who is to say that they use DOH? What if the company says it is the Nicolau with some minor changes no more? What does usapa do? What do you east pilots do? Do you vote for a contract with seniority negotiated but not DOH. There is nothing that requires the company to go along with anything that usapa proposes.

So if it gets dismissed so what. We are no closer to a contract than the day before. usapa still does not have the skill or unity to get a contract. So you guys can start retiring under LOA 93 and a dismissed company suit.

 

[Al Legheny]

How does USAPA's benefit by getting the Declaratory Relief action dismissed or stalled? The mediator will certainly be impressed if USAPA were somehow to get this dismissed. She would ask why you want my help when you dismiss a company lawsuit that could have cleared the way for your internal union dispute that is currently an unripe DFR action.

I seriously doubt that Silver will dismiss a Declaratory Relief action by the company under this factual scenario. Remember, in any Motion to Dismiss all inferences of fact are, by law, decided in favor of the plaintiff and/or cross claimant.

I seriously doubt that Silver will retain jurisdiction when Wake already dismissed the compnay FOR LACK OF SUBJECT MATTER JURISDICTION.

Jurisdiction does not depend on any statement or interpretation of facts. Here is what judge Wake said in his order in Dkt.#84 20, Nov. 2008.

B. Subject Matter Jurisdiction: Claims Against US Airways (Counts One and Two)

Of course, no relief can be granted by this court in the absence of subject matter jurisdiction. Defendants argue that jurisdiction is lacking because the Plaintiff West Pilots failed to exhaust their administrative remedies. The Railway Labor Act provides that disputes between employees and their employers concerning the interpretation of labor agreements may be referred by petition of either party to the Board of Adjustment. 45 U.S.C. § 184 (airline industry); 45 U.S.C. § 153 First (i) (railroad counterpart). Both of the claims against the airline arise under the operative terms of the Transition Agreement: the first alleges a violation of its substantive terms, and the second alleges a violation of the obligation imposed by that agreement to exert every reasonable effort in negotiations. These disputes are deemed “minor” in the Railway Labor Act parlance because they involve the “interpretation or application of collective bargaining agreements.” Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Aloha Airlines, Inc., 776 F.2d 812, 815 (9th Cir. 1985). In minor disputes, the Board of Adjustment provides the exclusive remedy. Consol. Rail Corp. v. Ry. Labor Execs. Ass’n, 491 U.S. 299, 310 (1989). However, where a union acts “in concert” with the carrier–employer, setting up “schemes and contrivances” to stymie aggrieved employees, no administrative remedy need be pursued. Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 324, 331 (1969); Croston v. Burlington N. R.R., 999 F.2d 381, 387 (9th Cir. 1993).
Rather, “[j]oinder of the employer is permissible” in the court proceedings against the union. Raus v. Bhd. Ry. Carmen of the U.S. and Can., 663 F.2d 791, 797-98 (8th Cir. 1981).

The Plaintiff West Pilots have neither alleged nor presented any specific facts suggesting collusion. “[A]ccusations of ‘bad faith’ do not excuse an attempt to use the grievance–arbitration machinery.” Bailey v. Bicknell Minerals, Inc, 819 F.2d 690, 693 (7th Cir. 1987); see also Anderson v. Babbitt, 230 F.3d 1158, 1164 (9th Cir. 2000) (requiring objective evidence to substantiate allegations of administrative bias). While no exhaustion is required where the plaintiff makes specific allegations that the employer colluded in the union’s breach of the duty to represent fairly, the conclusory allegations in this case are insufficient to establish collusion. Crusos v. United Transp. Union, Local 1201, 786 F.2d 970, 973 (9th Cir. 1986); Masy v. N.J. Transit Rail Operations, Inc., 790 F.2d 322, 327 (3d Cir. 1986). The Plaintiff West Pilots point to no specific instance where US Airways acted in concert with USAPA to thwart operational integration. There is no indication that US Airways intends to stall negotiations in order to avoid implementing the Nicolau Award.

Before dismissal of the airline is ordered, however, it must be considered whether Fed. R. Civ. P. 19 requires the employer to be joined as a party because its presence may be necessary for complete relief in the claim against the union. As the Third Circuit has noted, “the presence of the employer should not be a means of circumventing the [Board of Adjustment’s] exclusive jurisdiction over minor contractual disputes.” Masy, 790 F.2d at 327. Nor is it “appropriate to join an employer to a breach of duty of fair representation claim so that binding arbitration or some similar remedy may be ordered” because the Plaintiff West Pilots have not sought an order compelling their union to arbitrate. Id. Because no facts have been alleged or shown connecting union malfeasance with the company’s actions, no remedy lies against the company in this court, and complete relief may be granted against USAPA in its absence. See Czosek v. O’Mara, 397 U.S. 25, 28-29 (1970) (holding that a union may be held independently liable for damages that flowed from its own conduct). US Airways need not remain a party and will be dismissed.5

IT IS FURTHER ORDERED that Defendant US Airways’ Motion to Dismiss for lack of jurisdiction (docs. # 30) is granted.


Prior to this ruling USAPA offered the System Board of Adjustment to the plaintiffs without any Union involvement. That means the plaintiffs would have been able to go to the Arbitrator alone without any USAPA interference to state their claims. The declined to pursue this avenue.

Judge Silver will dismiss because subject matter jurisdiction is not dependent on any outside facts. The plaintifffs were offered relief via the system board and they didn't take it. Judge Wake stated the issue was subject to the purvue of the system board. He reaffirmed it in Docket # 666 on October 18, 2010

Dismissing US Airways for lack of jurisdiction, which has collateral benefits for USAPA.

If one Federal judge has dismissed based on subject matter jurisdiction anonther is not likely to take the case. This is a stalling and delay tactic
by management and they are setting the statge for DFRII by claiming exhaustion of legal remedies.

 

[crazystnic]

We have kept the squatters out of our house and off our land.


NIC.. What part of this don't you understand? We don't want your house or your land.. Remember if you would of gone for the fence this would be done.!
You are the ones wanting the NIC and all of our upgrade spots for your 2000-2005 hires.

 

[Crzipilot]

For those who love to use words like "dismissed" and "reversed" and "mis-trial," or misuse words like "remanded" notice here that the word used is "CONCLUDED."

It had a starting point. It had an ending point. It still exists as a concluded matter, preserving any evidence for future reference. It did not simply evaporate as if it never happened.

The fact that Addington is concluded may not evaporate it....but uhmmm...did you read this quote?

"the substantive rulings in Addington have been vacated pursuant to mandate, and both cases would now write on clean slates if there were anything to write in Addington, which there is not."

I kinda take it from that, that with the conclusion of the addington take, and it's subsequent vacate instructions from the 9th, Wake is stating that anything new starts from a CLEAN slate........hmmmm...what's that mean?

 

[luvthe9]

But wait. I thought Nic was already dead?? Has been for years, right?

Apparently not. Thankfully we all know that binding actually does mean binding. Time will tell.

Thankfully most of us understand the difference between internal union affairs, and contractual obligations between the company and an agency shop. There is a difference. You will see shortly, thanks to the company. Jacobs is continuing to do the good work for USAPA. When are you guys going to get him off this case? He is not helping the west by baiting the 9th into slapping Wake around, which in turn got Wake to come to his senses and beg off the case so as to prevent more embarrassment. Now Jacobs makes the poor move to try and get Wake involved AGAIN, and then you get another lecture on the fact Addington means nothing. How can you even begin to hammer Seham when Jacobs is pretty much carrying USAPA s case on his back?

 

[cynic]

The fact that Addington is concluded may not evaporate it....but uhmmm...did you read this quote?

"the substantive rulings in Addington have been vacated pursuant to mandate, and both cases would now write on clean slates if there were anything to write in Addington, which there is not."

I kinda take it from that, that with the conclusion of the addington take, and it's subsequent vacate instructions from the 9th, Wake is stating that anything new starts from a CLEAN slate........hmmmm...what's that mean?

It means Seeham will make a lot more money next time around.

 

[767jetz]

Wake is stating that anything new starts from a CLEAN slate.....

Of course it starts with a clean slate. But when findings of fact and depositions occur in DFR II, they better be identical to those of DFR I, or the west only needs to reference those previous facts to prove a change in story.

So the evidence will be substantially the same, except for anything new that has transpired since the first DFR case, and perhaps a different judge allowing or disallowing certain pieces of evidence. And my guess is that Seham will be kept on a shorter leash by the court the next time. The Nic will not be on trial (same as before). The biggest difference will be that in DFR II it will certainly be ripe. With the rest of the strategy being substantially the same, and with the haste at which USAPA was found guilty last time, it sure looks like USAPA's chances in DFR II are not good.

I'm not saying it's a sure thing. Nothing has been a sure thing since day one. But it's an option I'm sure USAPA, even in all the bravado and chest pounding, is afraid of and wants to avoid.

But all this talk of DFR II is very premature, because if the company is told in the Declaratory Judgment that they must use Nic, it's GAME OVER. If not, it only means that they are not legally on the hook if they go down a different path. They still may dig in their heals and stick with Nic. As long as they are bargaining in good faith, the NMB will not release anyone to self help. And USAPA has no leverage to work with. And DFR II still looms in the future as the West's big hammer. No matter what happens in court, USAPA has a Duty of Fair Representation to the West.

Everyone is reading so much into the Declaratory Judgment. It seems to be lost on the East that even before the company filed this case, there was still a clear path set for the west, leading to Nic or DFR II. Nothing has changed there. The DJ is only a possible end game for the West to expedite the inevitable implementation of Nic. There is little down side for them, and a lot of down side for USAPA's stall/delay/separate ops forever game plan. Which is why they are fighting it so hard. The only real victory for USAPA would be if Judge Silver orders the company to use DOH instead of Nic. That will never happen.

So if the DJ is dismissed, the west goes back to plan A. If the DJ says the company is free to negotiate whatever they can with USAPA and will be held harmless, the west goes back to plan A. But if the DJ says the only way for the company to be held harmless is to use the Nic, and anything else they do at their own peril, then again... it's Game Over.

 

[Captain Underpants]

Prior to this ruling USAPA offered the System Board of Adjustment to the plaintiffs without any Union involvement. That means the plaintiffs would have been able to go to the Arbitrator alone without any USAPA interference to state their claims. The declined to pursue this avenue.

Al,
They did more than decline to pursue a system board ruling. USAPA actually filed two grievances for the West pilots regarding a contractual right to the Nic award and allowed them to be represented by their own counsel.

The first grievance was for the allegation of the company furloughing out of seniority by not furloughing using the Nic award. The first case was heard by arbitrator Bloch and he ruled the company had no contractual obligation to furlough using the Nic award and the furloughs were done in proper seniority order according to the contract.

The second case was to determine if the company had a contractual obligation to negotiate only for the Nic award. The second case was also scheduled to be heard by arbitrator Bloch. After reviewing the results of the first arbitration the West pilots counsel wrote a letter to arbitrator Bloch stating they felt he was wrong in his first ruling and realizing they had no chance for winning the second grievance they canceled the scheduled second arbitration. Obviously the system board doesn't have the authority to tell the company how to negotiate the next contract and can only interpret the current contract. The system board avenue regarding a contractual right to Nic is now closed to the West pilots.

The company lawsuit is now asking the court if it has a Railway Labor Act contractual obligation to negotiate only for the Nic award and if USAPA and the company will be automatically guilty and liable of a future potential DFR if they negotiate for something other than the Nic award. These questions have already been answered by the system board and the Addington case.

The courts will continue to provide the exact same answers:

No court jurisdiction over RLA minor contract interpretation disputes and
No court jurisdiction to determine DFR because of lack of ripeness due to unknown future contingencies
Yes in America USAPA and the company can continue to be sued by any party for any reason no matter how frivolous the complaint

underpants

 

[hp_fa]

I seriously doubt that Silver will retain jurisdiction when Wake already dismissed the compnay FOR LACK OF SUBJECT MATTER JURISDICTION.

-----------------------------

If one Federal judge has dismissed based on subject matter jurisdiction anonther is not likely to take the case. This is a stalling and delay tactic
by management and they are setting the statge for DFRII by claiming exhaustion of legal remedies.

One, you are removing the context of the decision. US Airways was a defendant in that case and filed a Motion to Dismiss because it wasn't a party to the injunctive relief claims and had committed no torts against the Addington plaintiffs, so dismissal was proper because the court did lack subject matter jurisdiction over the company in those claims.

Two, as others have said, all the rulings made by Judge Wake in Addington v. USAPA are gone. Poof. Gone. This is a new case and the company is the plaintiff seeking declaratory relief.

 

[nic4us]

NIC.. What part of this don't you understand? We don't want your house or your land.. Remember if you would of gone for the fence this would be done.!
You are the ones wanting the NIC and all of our upgrade spots for your 2000-2005 hires.

What is it that you want?

It is my understanding usapa wants DOH with C&Rs, that are unilaterally imposed, which greatly favor the east pilots at the West pilots expense.

Had we gone for what fences? Some after the fact offer from the east that if we did not cave to their demands they would throw ALPA off the property fences? Here is the little known fact your dual unionist reps failed to see. That was no threat. Go ahead and kick ALPA off the property, they were actively violating the West pilots rights. Glad to see Prater and the Rice committe get the boot. Those scumbags were only a marginally better choice than the impotent angry F/O team. But they have way deeper pockets and much better lawyers to fight the DFR we would have to file. Getting the picture yet?

What part of this do you not understand? You are not getting DOH. How many CEOs, Arbitrators, and Judges, have to tell you that fact before it sinks in?

 

[88 B.T.D.]

.........east that if we did not cave to their demands they would throw ALPA off the property
fences? Here is the little known fact your dual unionist reps failed to see. That was no threat. Go ahead and kick ALPA off the property, they were actively violating the West pilots rights. Glad to see Prater and the Rice committe get the boot......

This is the new threat. If the DJ says only NIC. We elect ALPA back on property and go back to dual ratification.

 

[Captain Underpants]

So if the DJ is dismissed, the west goes back to plan A. If the DJ says the company is free to negotiate whatever they can with USAPA and will be held harmless, the west goes back to plan A. But if the DJ says the only way for the company to be held harmless is to use the Nic, and anything else they do at their own peril, then again... it's Game Over.

Jetz,
Obviously DOH and separate operations is the status quo. The company and the West pilots have no leverage to ever get Nic implemented. It would require USAPA to agree to ignore both its constitutional mandate and membership mandate to use a DOH list with C&R's opening USAPA up to a DFR suit by East pilots. Even if USAPA tried to agree to Nic any contract with Nic in it would undoubtedly be rejected by the membership. USAPA and the voting union pilots can simply say no to any change other than a DOH integration or change to the DOH status quo.

East pilots are completely neutral on separate ops with DOH or pilot integration with USAPA's DOH with C&R proposal. There is no advantage to East pilots to implement USAPA's DOH integration proposal or as an alternative maintain the DOH status quo on seniority which is an extremely strong indication if not proof that USAPA's DOH proposal is fair and equitable.

Absent a impossible to get court order trying to somehow force Nic into a contract the next contract will contain a DOH seniority list. Yes USAPA can be sued for DFR by the West pilots. Federal court cases can take up to 15 years with appeals. DFRII will likely take more than 10 years for final resolution at which point 90% of East pilots will have retired and the seniority dispute will be meaningless.

underpants

 

[N924PS]

Wake is stating that anything new starts from a CLEAN slate........hmmmm...what's that mean?

Steve Bradford on the witness stand?

 

[nic4us]

This is the new threat. If the DJ says only NIC. We elect ALPA back on property and go back to dual ratification.

Go for it, you have the majority.

Actually, there will probably be a card drive as soon as you lose the LOA93 arbitration.

However, dual ratification would be a big question mark.

Besides, I thought you east pilots wanted to be teamsters.

 

[CallawayGolf]

Jetz,
Obviously DOH and separate operations is the status quo.

Untrue - The east list is not purely DOH today

The company and the West pilots have no leverage to ever get Nic implemented.

Untrue - The company has all the leverage because USAPA yielded it to them. Also, how many east pilots would have to join in with the west pilots to ratify a new JCBA using NIC?

It would require USAPA to agree to ignore both its constitutional mandate and membership mandate to use a DOH list with C&R's opening USAPA up to a DFR suit by East pilots.

Untrue - USAPA is bound by the agreements made by the pilots prior to the formation of USAPA. How big is the membership mandate? What was the last vote count that determined a DOH mandate? Finally, no DFR would be valid for ussing the NIC - it was the result of binding arbitration, a East DFR would get tossed.

Even if USAPA tried to agree to Nic any contract with Nic in it would undoubtedly be rejected by the membership.

Unfounded - there is no proof that it would undoutedly get rejected.

USAPA and the voting union pilots can simply say no to any change other than a DOH integration or change to the DOH status quo.

Untrue- the NMB can resolve this and force the NIC without the east pilots' ratification.

East pilots are completely neutral on separate ops with DOH or pilot integration with USAPA's DOH with C&R proposal. There is no advantage to East pilots to implement USAPA's DOH integration proposal or as an alternative maintain the DOH status quo on seniority which is an extremely strong indication if not proof that USAPA's DOH proposal is fair and equitable.

Untrue - the east pilots haven't been completely neutral yet. Also, if the choice is LOA93 with no possibility of DOH or NIC plus a non-banruptcy contract pay rate, you can expect many east pilots to vote for a pay raise with the NIC.

Absent a impossible to get court order trying to somehow force Nic into a contract the next contract will contain a DOH seniority list. Yes USAPA can be sued for DFR by the West pilots. Federal court cases can take up to 15 years with appeals. DFRII will likely take more than 10 years for final resolution at which point 90% of East pilots will have retired and the seniority dispute will be meaningless.

Unfounded - how long did the last DFR take? What data do you have to support your claim of a 15-year DFR process?