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

[767intl]

I don't have a copy of the TA to review. However, assuming the truth of what you say it says and in the context of which you refer, it would ** appear ** to me that such a move by the company would bring about a lawsuit by the West pilots. That is just another possible reason why the company made a smart move if filing for declaratory relief.

However, there is a second thought that basically smacked me in the face when I re-read your question before submitting the above paragraph as my answer. DUH. The TA was signed by three parties. While it can be argued that the West no longer exists the company is not betting on a court seeing it that way. The Addington class is the closest thing to a group that represents west at this point yet I suspect that there are at least a few West USAPA MIGS who will claim that the Addington class does not represent them.

First off, HP, "May be modified by written agreement of the Association and the Airline Parties collectively" is actually a direct quote out of the TA, XII,B. Why question everything others post?

Yes, the TA was signed by three parties (actually five parties, but that's quibbling). According to the language in the TA, those three (5) parties were:"AWHC (America West)," "US Airways Group (US Airways)," "and the AIR LINE PILOTS in the service of AMERICA WEST and US AIRWAYS, respectively, as represented the AIR LINE PILOTS ASSOCIATION." So, two (or four) company participants, but only one union participant. The only union "signatory" to the TA was Duane Woerth. All the others union types there were merely witnesses.Those facts, HP.

The TA is very specific regards modification. USAPA superceded the "Association" as CBA, so USAPA can modify it, as it desires (granted, under penalty of an in novo DFR). The problem you have with arguing that the Addington "class" can sue the company is the fact that the TA (as-is or as modified) was "made and entered into in accordance with the provisions of the Railway Labor Act." As we found out with the early court losses by McIlveny two years ago, disputes belong under the jurisdiction of the system board, not the courts. Even the desert judge sent those to the SBA. Or have you forgotten those West losses?

If USAPA was really smart they would do something to undo their assimilation of the West as a group because there may be a need for USAPA to negotiate with the West, if anyone can now figure out who the West is.

To paraphrase Al Gore, where's the controlling legal authority that allows USAPA to negotiate with a group that exists outside the RLA?

HP, I got to hand it to you. You're like the Energizer Bunny. You prognosticated a USAPA 9th loss, lost that one big-time and went out to recharge your batteries. Now you're back. I'm reading much speculation and winging it in your posts. JMHO.

 

[MyJ4JjobSucks]

I don't have a copy of the TA to review. However, assuming the truth of what you say it says and in the context of which you refer, it would ** appear ** to me that such a move by the company would bring about a lawsuit by the West pilots. That is just another possible reason why the company made a smart move if filing for declaratory relief.

However, there is a second thought that basically smacked me in the face when I re-read your question before submitting the above paragraph as my answer. DUH. The TA was signed by three parties. While it can be argued that the West no longer exists the company is not betting on a court seeing it that way. The Addington class is the closest thing to a group that represents west at this point yet I suspect that there are at least a few West USAPA MIGS who will claim that the Addington class does not represent them. If USAPA was really smart they would do something to undo their assimilation of the West as a group because there may be a need for USAPA to negotiate with the West, if anyone can now figure out who the West is.

I'm definitely no legal expert, but is seems to me that lawsuit would be pretty weak. The TA also contains sections on min fleet count, 190 pay rates, etc. Do you think if the association and company were to amend the TA on those sections that the west or east would also have a viable DFR claim. I don't quite see the distinction between one section vs the other.

 

[hp_fa]

I'm definitely no legal expert, but is seems to me that lawsuit would be pretty weak. The TA also contains sections on min fleet count, 190 pay rates, etc. Do you think if the association and company were to amend the TA on those sections that the west or east would also have a viable DFR claim. I don't quite see the distinction between one section vs the other.

A lawsuit by West against the company if the company unilaterally broke the TA and rescinded their subsequent acceptance of the Nicolau list? Weak? I don't think so.

The company won't be amending the TA without prior court approval. Count on it.

Finally, a DFR claim cannot be filed against the company. DFR's are strictly actions by union members against their union for failing to fairly represent them. Any claim against the company by West pilots would sound in tort or contract law, or a combination of both.

 

[MyJ4JjobSucks]

A lawsuit by West against the company if the company unilaterally broke the TA and rescinded their subsequent acceptance of the Nicolau list? Weak? I don't think so.

The company won't be amending the TA without prior court approval. Count on it.

Finally, a DFR claim cannot be filed against the company. DFR's are strictly actions by union members against their union for failing to fairly represent them. Any claim against the company by West pilots would sound in tort or contract law, or a combination of both.

I never said anything about unilaterally breaking the TA. I said amend the TA as per the language in the TA. Are you saying the min fleet count or 190 pay rates need court approval to be changed. Would that not fall under RLA rules.

I also do understand that the company cannot be sued for DFR. I believe the one and only reason for filing for declaratory relief is to extend contract negotiations and keep us on LOA 93 as long as possible.

 

[hp_fa]

I never said anything about unilaterally breaking the TA. I said amend the TA as per the language in the TA. Are you saying the min fleet count or 190 pay rates need court approval to be changed. Would that not fall under RLA rules.

If the West pilots are a party to the contract, otherwise known as the TA, then it would probably be unwise for the company to attempt to amend any part of the TA without West pilots or the courts approval. Since the West pilots cannot agree, because USAPA de-formed them, it would take court approval, either in the form of a Order after a Motion fight or in the form of a final judgment to OK any proposed amendment to the TA. If the company were to proceed with only their signature and USAPA's it would, to some degree, hurt its declaratory relief action since it could be then argued that the company can move forward without West if it chooses to do so, it simply doesn't choose to do so.

I also do understand that the company cannot be sued for DFR. I believe the one and only reason for filing for declaratory relief is to extend contract negotiations and keep us on LOA 93 as long as possible.

I disagree for three reasons.

One, the company could still continue to sit back until or unless the federal mediator essentially told the company to do whatever it had to to resolve the seniority dispute. Of course the mediator would say the same thing to USAPA at the same time since it is in USAPA's ability to solve the dispute within a day or two at a meeting of the BPR to vote to accept Nicolau as the list since that list pre-dated the USAPA Constitution and By-Laws.

The second reason I disagree is the timing of the company's action. They filed it very shortly after the Addington case was ordered dismissed by the 9th. The company was hoping that the issues would be resolved either by the pilots or the courts without the company becoming involved. They filed their action as soon a it was apparent that the Addington case was done for now.

The third reason is that I am convinced there is a merger or acquisition waiting for resolution of the issues. The company wants to move forward with that and cannot until the pilot labor issue from the last merger/acquisition is resolved.

 

[BoeingBoy]

The only union "signatory" to the TA was Duane Woerth. All the others union types there were merely witnesses.Those facts, HP.

Perhaps you should look at the signature page of the TA again. There are 7 signatures - 4 representing "the airline companies" (now reduced to two and effectively 1) and 3 by "the Association representatives (ALPA president representing the CBA, AWA MEC chairman representating AWA pilots and US MEC chairman representating US pilots). There are 6 witnesses on the association side - ALPA VP, both MEC vice chairmen and the 5 members of both negotiating committees.

I think hp fa, myself, and several others have made it clear that there is no entity to represent the West pilots in any negotiations between the two sides, whether it's to find some middle position or whatever. USAPA is the only legally recognized entity that represents all US pilots, which is why it has the duty to fairly represent the West pilots as well as the East pilots.

The TA also contains sections on min fleet count, 190 pay rates, etc. Do you think if the association and company were to amend the TA on those sections that the west or east would also have a viable DFR claim. I don't quite see the distinction between one section vs the other.

It's not so much one section vs another but the reason/result of the negotiated change. What if USAPA and the company negotiated a change that reduced the West fleet count by 60 airplanes but increased the East min by 50 airplanes? Would that not present a possible DFR violation? How about if USAPA negotiated a $40/hour increase in E190 rates offset by a $10/hour decrease in West pay rates? Would that be a possible DFR suit?

While USAPA has the authority to negotiate on behalf of the pilots, it has to treat both sides fairly. It can't just negotiate taking something from one side just so it can give something to the other.

Jim

 

[MyJ4JjobSucks]

Perhaps you should look at the signature page of the TA again. There are 7 signatures - 4 representing "the airline companies" (now reduced to two and effectively 1) and 3 by "the Association representatives (ALPA president representing the CBA, AWA MEC chairman representating AWA pilots and US MEC chairman representating US pilots). There are 6 witnesses on the association side - ALPA VP, both MEC vice chairmen and the 5 members of both negotiating committees.

I think hp fa, myself, and several others have made it clear that there is no entity to represent the West pilots in any negotiations between the two sides, whether it's to find some middle position or whatever. USAPA is the only legally recognized entity that represents all US pilots, which is why it has the duty to fairly represent the West pilots as well as the East pilots.



It's not so much one section vs another but the reason/result of the negotiated change. What if USAPA and the company negotiated a change that reduced the West fleet count by 60 airplanes but increased the East min by 50 airplanes? Would that not present a possible DFR violation? How about if USAPA negotiated a $40/hour increase in E190 rates offset by a $10/hour decrease in West pay rates? Would that be a possible DFR suit?

While USAPA has the authority to negotiate on behalf of the pilots, it has to treat both sides fairly. It can't just negotiate taking something from one side just so it can give something to the other.

Jim

It sounds to me like your saying USAPA is free to negotiate with the company for all pilots and to amend the TA if need be. What you believe to be fair for the west and east pilots is simply your own opinion. We all have different opinions on the seniority issue. That does not mean any action USAPA takes will constitute a DFR. If it did, any east pilot would have just as much right to claim such DFR if USAPA chose to use the NIC award.

How can you treat both sides fairly when both sides don't share the same opinion. Even further, not each side, west or east, is in complete agreement with their own side. We have east pilots who want the Nic and east pilots who want DOH, just as the west has pilots who also want nic and some who supposedly do not.

This is why DFR suits are almost never successful. It is impossible to fairly represent 5000 individuals. That is where the wide range of reason comes in. I think Judge Wake just got a bit carried away during DFRI.

 

[Metroyet]

It sounds to me like your saying USAPA is free to negotiate with the company for all pilots and to amend the TA if need be. What you believe to be fair for the west and east pilots is simply your own opinion. We all have different opinions on the seniority issue. That does not mean any action USAPA takes will constitute a DFR. If it did, any east pilot would have just as much right to claim such DFR if USAPA chose to use the NIC award.

How can you treat both sides fairly when both sides don't share the same opinion. Even further, not each side, west or east, is in complete agreement with their own side. We have east pilots who want the Nic and east pilots who want DOH, just as the west has pilots who also want nic and some who supposedly do not.

This is why DFR suits are almost never successful. It is impossible to fairly represent 5000 individuals. That is where the wide range of reason comes in. I think Judge Wake just got a bit carried away during DFRI.

Unions aren't Mob rule. They must act for legitimate purposes...not arbitrarily. It is not a legitimate purpose to ...after the delivery of an arbitrated award...to decide that the majority will simply change their names, and decide that what they want, is to staple 85% of America West pilots below ALL East pilots.

Honestly, do you REALLY believe USAPA is acting inside the law? Do you ACTUALLY BELIEVE, that the B.S. trumped up, hind sighted, C&BL trump the rights of ALL West pilots? You guys are the only ones...the ONLY ONES that ever attempt to justify what is obviously behavior that is not only morally reprehensible, but flatly illegal. Wake bent over backwards to accommodate your crew of incessant whiners. I hope this trial stays with Silver. If for no other reason than to hear whatever new derogatory names she'll be called when SHE rules against this absurd "union".

 

[BoeingBoy]

It sounds to me like your saying USAPA is free to negotiate with the company for all pilots and to amend the TA if need be.

They can but they they are required to negotiate within the limits of the DFR responsibilities or face a possible DFR suit.

How can you treat both sides fairly when both sides don't share the same opinion.

I didn't say it would be easy but it is the responsibility USAPA sought when it applied to be the CBA. Ultimately a neutral party determines what's fair if the represented can't agree.

This is why DFR suits are almost never successful. It is impossible to fairly represent 5000 individuals.[/quote[ That is where the wide range of reason comes in. I think Judge Wake just got a bit carried away during DFRI.

While it is impossible to meet everyone's opinion of fair, especially in a case like this where opinions are so divergent, it isn't impossible to meet the standard. The standard isn't that everyone has to think it's fair but that it be fair ("fair" being shorthand for he DFR standard, which is more than merely "within a wide range...").

Ultimately, if necessary, a neutral party decides. While you think Wake got it wrong, that's only one opinion. Eventually whether USAPA meets it's DFR responsibilities will be decided one way are the other and so far no one neutral has said that the Nic award is fair and no neutral party has said abandoning the Nic meets that standard.
Time will tell what the ultimate outcome will be, but it certainly won't be decided by various opinions here.

Jim

 

[Al Legheny]

Deleted

 

[Al Legheny]

Unions aren't Mob rule. They must act for legitimate purposes...not arbitrarily. It is not a legitimate purpose to ...after the delivery of an arbitrated award...to decide that the majority will simply change their names, and decide that what they want, is to staple 85% of America West pilots below ALL East pilots.

Honestly, do you REALLY believe USAPA is acting inside the law? Do you ACTUALLY BELIEVE, that the B.S. trumped up, hind sighted, C&BL trump the rights of ALL West pilots? You guys are the only ones...the ONLY ONES that ever attempt to justify what is obviously behavior that is not only morally reprehensible, but flatly illegal. Wake bent over backwards to accommodate your crew of incessant whiners. I hope this trial stays with Silver. If for no other reason than to hear whatever new derogatory names she'll be called when SHE rules against this absurd "union".

Yes, there are many who REALLY BELIEVE that USAPA is well within the law. To give an idea of just how messed up this trial was please review docket #590. It is the request for a new trial. It was filed after the May 2009 Addington decision. It is on file with the appeal to the 9th circuit. They didn't get to it because they couldn't get past ripeness. It will play a major part in any decision to re-open the action which is highly unlikely.

If the 9th circuit couldn't tell USAPA what to bargain for why would judge Silver tell the company what to bargain for?

 

[BoeingBoy]

If the 9th circuit couldn't tell USAPA what to bargain for why would judge Silver tell the company what to bargain for?

You've got two issues the way I see it. 1st is whether what the union negotiates meets the DFR standards and will be decided after the conclusion of negotiations. The 2nd is the issue of whether a party can agree to binding arbitration to resolve a disagreement and then ignore the result of that binding arbitration if it doesn't like the result. While the DFR issue is obviously of great importance to everyone in this situation, I see the arbitration issue as having greater legal significance since it's used so widely as a method of settling disputes.

It is really the 2nd question that the company has asked the court to answer in my opinion. If the union is free to ignore the result of binding arbitration, the company can negotiate any seniority list without being exposed to legal liability. The union may still be subject to a DFR charge, but the company is off the hook. On the other hand, if the union is bound by the results of binding arbitration, the company can't negotiate any other seniority list without being exposed to a charge of violating the contract (the TA) and aiding/abetting the union to avoid the arbitration results.

Jim

 

[aquagreen73s]

It is really the 2nd question that the company has asked the court to answer in my opinion. If the union is free to ignore the result of binding arbitration, the company can negotiate any seniority list without being exposed to legal liability.

And if the court can't answer that, then claim 3 is the catchall - can we the company just get a blanket get-out-of-jail free card regardless of claims 1 and 2? Good luck with that one, company.

I personally don't think claim 2 is answerable given the 9th ruling, but claim 1 is answerable now.

There is only one safe harbor for the company and it's to stand on the results of the arbitration. Anything other than that, the court will tell them that they are on their own.

 

[Phoenix]

Yes, there are many who REALLY BELIEVE that USAPA is well within the law. To give an idea of just how messed up this trial was please review docket #590. It is the request for a new trial. It was filed after the May 2009 Addington decision. It is on file with the appeal to the 9th circuit. They didn't get to it because they couldn't get past ripeness. It will play a major part in any decision to re-open the action which is highly unlikely.

If the 9th circuit couldn't tell USAPA what to bargain for why would judge Silver tell the company what to bargain for?

"the Court [Wake] committed prejudicial errors of law in instructing the Jury and these errors were individually and cumulatively prejudicial, tainted the deliberation process, and are sufficiently serious to warrant a new trial."

Yes, good point.. exactly why Wake should not transfer the present case to himself. His question "Don't you trust me to be fair?" and his umbrage at the thought he might be accused is plainly a matter that is still an open question. His question to USAPA of whether or not he will be impartial is sorta offensive seeing he has already been accused by USAPA of being partial, but they have not been allowed to have their accusation addressed... yet he is still asking them.. are you still accusing me!?

Well, duh.

 

[aquagreen73s]

His question to USAPA of whether or not he will be impartial is sorta offensive seeing he has already been accused by USAPA of being partial, but they have not been allowed to have their accusation addressed... yet he is still asking them.. are you still accusing me!?

Well, duh.

??? Judge Wake gave Granath all the time Granath needed to explain the accusation which USAPA lodged against the good judge. At one point when Granath was trying to just get away from questioning and offered to the court that it wasn't worth the time to discuss any further, Judge Wake told him that the court had all day.