US Pilots Labor Discussion 3/1- STAY ON TOPIC AND OBSERVE THE RULES

[Al Legheny]

Which, among a whole mountain of other unequivocal statements and actions by USAPA and the East pilot group, effectively removed ripeness as an issue in this case. Seham must know it, otherwise he wouldn't have conjured up a rule of law that does not exist: the "ripeness cannot begin until ratification" argument. If a claim wasn't ripe until a ratification vote, then a whole host of claims (not DFR related) would not be ripe when any principal (even those outside of the union-member relationship) sues their agent. It's a preposterous argument that cannot be found anywhere in the law, which is exactly why Seham couldn't find a single case which supported his position.

The following is taken from the Federal Distric Court in North Carolina in Breeger v. USAPA.

II. DISCUSSION
Under Fed. R. Civ. P. 12(B)(1), the existence of subject matter jurisdiction is a threshold
issue. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 96 (1998). Accord Jones v. American
Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999); and Evans v. B.F. Perkins Co., 166 F.3d642, 647 (4th Cir. 1999). The party seeking federal jurisdiction in this case, the Plaintiffs, have the burden of proving that subject matter jurisdiction exists. Richmond, Fredericksburg & Potomac R.Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

In considering a motion to dismiss pursuant to Rule 12(B)(1), a court should “regard the
pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.†Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (internal citation omitted). The moving party’s motion to dismiss should be granted when “the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.†Id. (internal citation omitted).
Federal courts may adjudicate “only actual ongoing cases or controversies.†Lewis v.
Continental Bank Corp., 494 U.S. 472, 477 (1990). As a result, federal courts may not entertain
actions that are not yet ripe. Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967).
The Supreme Court has established a two part test for determining ripeness, by deciding:
(1) whether the issues are fit for judicial decision, and (2) whether hardship will fall to the
petitioning party on withholding court consideration.†Static Control Components, Inc. v. DarkprintImaging, Inc., 135 F. Supp. 2d 722, 732 (M.D.N.C. 2001) , citing Abbott Laboratories, 387 U.S. at148-49. “An issue is not fit for review if it rests upon contingent future events that may not occuras anticipated, or indeed may not occur at all.†Retail Indus. Leaders Ass’n v. Fielder, 475 F.3d 180,188 (4th Cir. 2007), citing Texas v. United States, 523 U.S. 296, 300 (1998).

Concerning the ripeness of a DFR claim, the Supreme Court has recognized that the “final
product of the bargaining process may constitute evidence of a breach of duty [of fair
representation].†Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991) (emphasis added). 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.2

That's the North Carolina court quoting the Supreme Court. That's where the ripeness issue came from.

 

[OTTER574]

The following is taken from the Federal Distric Court in North Carolina in Breeger v. USAPA.

II. DISCUSSION
Under Fed. R. Civ. P. 12(B)(1), the existence of subject matter jurisdiction is a threshold
issue. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 96 (1998). Accord Jones v. American
Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999); and Evans v. B.F. Perkins Co., 166 F.3d642, 647 (4th Cir. 1999). The party seeking federal jurisdiction in this case, the Plaintiffs, have the burden of proving that subject matter jurisdiction exists. Richmond, Fredericksburg & Potomac R.Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

In considering a motion to dismiss pursuant to Rule 12(B)(1), a court should “regard the
pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.â€￾ Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (internal citation omitted). The moving party’s motion to dismiss should be granted when “the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.â€￾ Id. (internal citation omitted).
Federal courts may adjudicate “only actual ongoing cases or controversies.â€￾ Lewis v.
Continental Bank Corp., 494 U.S. 472, 477 (1990). As a result, federal courts may not entertain
actions that are not yet ripe. Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967).
The Supreme Court has established a two part test for determining ripeness, by deciding:
(1) whether the issues are fit for judicial decision, and (2) whether hardship will fall to the
petitioning party on withholding court consideration.â€￾ Static Control Components, Inc. v. DarkprintImaging, Inc., 135 F. Supp. 2d 722, 732 (M.D.N.C. 2001) , citing Abbott Laboratories, 387 U.S. at148-49. “An issue is not fit for review if it rests upon contingent future events that may not occuras anticipated, or indeed may not occur at all.â€￾ Retail Indus. Leaders Ass’n v. Fielder, 475 F.3d 180,188 (4th Cir. 2007), citing Texas v. United States, 523 U.S. 296, 300 (1998).

Concerning the ripeness of a DFR claim, the Supreme Court has recognized that the “final
product of the bargaining process may constitute evidence of a breach of duty [of fair
representation].â€￾ Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991) (emphasis added). 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.2

That's the North Carolina court quoting the Supreme Court. That's where the ripeness issue came from.

______________________________________________________________________
___________

Ripeness doctrine from another Federal District court of which usapa was Tried and Convicted of DFR. Better known as Judge Neil. V Wake's court room.


1. Ripeness Doctrine
Two factors govern the inquiry into whether a case is ripe: “the fitness of the
issues for judicial decision,â€￾ and “the hardship to the parties of withholding court
consideration.â€￾ Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433
F.3d 1199, 1211-12 (9th Cir. 2006). Both factors favor jurisdiction here.
The issues fit for decision are these: Whether USAPA adopted and presented its
seniority proposal without any legitimate union objective, solely to benefit East Pilots at
the expense of West Pilots, and if so whether the West Pilots are entitled to damages and
an injunction therefor. See id. at 1212 (noting that ripeness hinges on “the precise legal
question to be answeredâ€￾). The jury answered the first question in the affirmative. A
ruling on relief need not wait for further facts to eventuate themselves. Plaintiffs’ case
Case 2:08-cv-01633-NVW Document 593 Filed 07/17/2009 Page 39 of 53
does not rest upon “contingent future events that may not occur as anticipated, or indeed
may not occur at all.â€￾ Cardenas v. Anzai, 311 F.3d 929, 934 (9th Cir. 2002) (quoting
Texas v. United States, 523 U.S. 296, 300 (1998)). USAPA concedes that it will never
bargain for implementation of the Nicolau Award. [Doc. # 574 at 1047.] It is
constitutionally hostile to doing so. The Airline has accepted the Nicolau Award,
expressing no opposition to it, and the union has failed to show any legitimate reason (or
plausible future reason) for abandoning it. Liability flows from the process and aims of
USAPA’s seniority position. The outcome of negotiations is irrelevant. Without an
injunction, USAPA’s seniority position inevitably impairs the collective bargaining
process.
For this same reason, denying judicial review would work a substantial hardship
upon the parties, including the Airline. The prospect of a single new CBA holds
significant economic consequences for all US Airways pilots, whose wages, working
conditions, furloughs, and demotions are on the line. In addition to depriving West Pilots
of legitimate representation, USAPA’s bargaining position leaves the Airline to decide
between a lack of a single CBA and an unlawful single CBA.
2. Remedial Concerns
The practicalities of the remedy also support ripeness. As discussed further on,
effective relief is available in the form of an injunction requiring USAPA to negotiate for
the implementation of the Nicolau Award, which the Airline has already accepted. Even
if a CBA were in place, relief could only set aside that agreement and restore the union’s
proper negotiating position—it could not impose a permanent new CBA term. H. K.
Porter Co., Inc. v. NLRB, 397 U.S. 99, 107-09 (1970) (forbidding NLRB from
prescribing terms of CBA); Hyatt Mgmt. Corp. of N.Y. v. NLRB, 817 F.2d 140, 143 (D.C.
Cir. 1987) (noting that the rule also applies to the courts); see also Bernard v. Air Line
Pilots Ass’n, Int’l, 873 F.2d 213, 215, 217-18 (9th Cir. 1989) (affirming injunction that
set aside “taintedâ€￾ agreement, established a temporary seniority system, and required
union adherence to ALPA merger policy as a new seniority bargaining position). To

withhold relief until the conclusion of corrupted negotiations would accomplish nothing
but delay—a hardship to all parties.
3. Limitations Cases
Cases from the limitations context confirm that the claim is ripe. Claims are ripe,
at the latest, when the statute of limitations begins to run. See, e.g., Norco Const., Inc. v.
King County, 801 F.2d 1143, 1146 (9th Cir. 1986); Hensley v. City of Columbus, 557 F.3d
693, 696 (6th Cir. 2009). The statute of limitations runs on fair representation claims
from the time that the asserted injury becomes “fixed and reasonably certain.â€￾ Archer v.
Airline Pilots Ass’n Int’l, 609 F.2d 934, 937 (9th Cir. 1979). The West Pilots’ asserted
injury was “fixed and reasonably certainâ€￾ as of the time that USAPA presented its
seniority proposal to the Airline for improper purposes, abdicating its responsibility to
negotiate on behalf of both groups impartially and in good faith.
Ramey undergirds this conclusion. Ramey held that a union’s unequivocal
announcement of an intent to breach its duty would only give rise to a ripe claim in
limited circumstances. 378 F.3d 269, 278-79 & n.4 (2d Cir. 2004). However, a claim
does accrue when the union acts on that intention by presenting its seniority proposal to
the company, before the conclusion of a CBA. Id. at 279-80. Though the facts of Ramey
and this case are not identical, the analytical framework is apt.
The duty of fair representation owed by a union to its
members is similar to a contractual duty, and the union’s
announcement of its intent to advocate against its members’ interests
may be compared to a party’s anticipatory repudiation of a
contractual duty. In some anticipatory repudiation cases the
aggrieved party may sue immediately after the repudiation is
announced. However, the statute of limitations ordinarily does not
begin to run, and the cause of action does not accrue, until the date of
the actual breach; that is, until the date on which performance is due.
. . . Applying this principle to the case at bar, the cause of action
accrued on the date on which performance was due, namely the date
on which [the union] advocated a position on the seniority issue to
USAir.
Id. USAPA points out that at the time that the Ramey plaintiffs happened to sue, the
union had already reached agreement with the airline on seniority integration. This
contention misses the point. The above language makes clear that the Ramey plaintiffs’
claim accrued prior to the execution of the agreement. The same circumstances are
present here. USAPA has made plain its intent never to bargain for the Nicolau Award,
and it has advocated its date-of-hire seniority proposal to the company.
4. Other Authority
USAPA has cited no precedential authority for dismissing a fair representation
claim on ripeness grounds. Indeed, USAPA has cited no federal appellate authority
discussing ripeness in the labor context. Perhaps such cases are scarce because the
typical inquiry in a fair representation suit is whether a union’s past action violated its
duty of fair representation—a question ripe by definition. Such was the inquiry in this
case, and so it does not raise paradigmatic ripeness concerns of record development or
temporal standing. Plaintiffs sought and obtained an adjudication of past and present
union action.
USAPA has repeatedly suggested that only the “final product of the bargaining
processâ€￾ is subject to fair representation claims, citing Air Line Pilots Association v.
O’Neill, 499 U.S. 65, 78 (1991). [E.g., doc. # 36 at 13.] This phrase, carefully plucked
from its context, is too slender a reed to support such an elephantine proposition.
O’Neill’s statement that “the final product of the bargaining process may constitute
evidence of a breach of dutyâ€￾ was not directed at ripeness, but rather at the “arbitrarinessâ€￾
standard of reviewing union actions. Reuniting the phrase with the rest of the quoted
sentence makes its meaning clear: “[T]he final product of the bargaining process may
constitute evidence of a breach of duty only if it can be fairly characterized as so far
outside a ‘wide range of reasonableness,’ that it is wholly ‘irrational’ or ‘arbitrary.’â€￾ Id.
(citation omitted).
O’Neill did not concern the accrual of fair representation claims. It simply held
that the union’s duty of fair representation, including the arbitrary–discriminatory–bad
faith framework, “applies to all union activity, including contract negotiation.â€￾ Id. at 67;
see also Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 324, 329 (1969). Nothing in O’Neill
prevents the imposition of liability for negotiating activities prior to the conclusion of a
CBA. Rather, the case suggests that the liability may arise sooner because the agreement
is only considered as “evidenceâ€￾ of a breach rather than the breach itself. O’Neill’s
application of the duty of fair representation to “contract negotiationâ€￾ underscores this
conclusion. 499 U.S. at 67.
It may be the rare case where a redressable fair representation claim accrues in the
midst of labor negotiations, which are usually dynamic and uncertain, but it happened
here. In USAPA’s hands, the Nicolau Award’s time of death has passed; only the time of
the funeral is uncertain. The Transition Agreement resolved the union’s internal seniority
conflict by way of the Nicolau Award, which USAPA wholly abandons solely to benefit
one group of pilots over another. Indeed, this particular breach of the duty implicates
both negotiation and administration of collective bargaining agreements. See id. at 77
(doubting that “that a bright line could be drawn between contract administration and
contract negotiationâ€￾ in every case).
Another district court, considering a suit by a different set of pilots against
USAPA, has accepted USAPA’s ripeness argument. See Breeger v. USAPA, No. 08-CV-
490, 2009 WL 1328902, 2009 U.S. Dist. LEXIS 40489 (W.D.N.C. May 12, 2009). In
Breeger, certain East Pilots brought a fair representation suit against USAPA, alleging
that USAPA failed to meet a constitutional obligation to reshuffle East Pilot seniority
positions established by prior mergers. The district court adopted a Magistrate Judge’s
Report and Recommendation, dismissing the case in reliance on O’Neill as well as a
selection of unpublished federal decisions and state cases. The Report states, “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 [fair representation] claim
prior to the conclusion of negotiations with the employer.â€￾ It does not address the context
of O’Neill’s “final product of the bargaining processâ€￾ language. It makes no mention of
Ramey, which was not presented to the court in any brief. The holding of United
Independent Flight Officers, Inc. v. United Air Lines, Inc.

 

[luvn737s]

Lord in Heaven....the profession has truly deteriorated to a level I'd never even dreamed possible in youth. What's the extent of airline companies employment screening these days?...having a certificate and a pulse? There's just no possible way I'd ever suggest that any intelligent and talented youth enter into commercial aviation in these sorry times.

Ask the emminently qualified 18-yr old that USAirways hired in the past. I guess nepotism used to help folks get on in PIT. AWA used to ask their interviewees how they would define integrity.

Sully's answer probably wouldn't be acceptable though, even if he believed it himself.

 

[Metroyet]

......

 

[Metroyet]

...over nothing more than not getting a shiny new toy 757 in the timeline his petulant imagination demanded.

Lord in Heaven....the profession has truly deteriorated to a level I'd never even dreamed possible in youth. What's the extent of airline companies employment screening these days?...having a certificate and a pulse? There's just no possible way I'd ever suggest that any intelligent and talented youth enter into commercial aviation in these sorry times.

Oh yes brave Warrior. That's all that meeting was about, toys. Funny how you brave, (self proclaimed Warriors had to pay for armed guards and metal detectors for the first few meetings...being such brave tough guys and all. I've never attended a union meeting with armed escorts. Kinda suggests that meeting was about a little bit more than toys doesn't it. It was an all out declaration of civil war. Any right minded victim-to-be would have such a visceral reaction to those Rat cowards. Frankly those guys have gotten off far easier than I imagined they would have a few years ago.

I agree with you on the state of the profession. I never thought I'd see the day that ones own Union would demand payment, threaten your career, sue innocent members under Organized Crimes laws, abrogate every agreement they've made and show such a vulgar display of power abuse, void of even the smallest measurement of integrity. If USAPA is what a pilot union is going to look like in Future, the whole profession deserves to be thrown in a cess pool.

 

[EastUS]

AWA used to ask their interviewees how they would define integrity.

Sully's answer probably wouldn't be acceptable though, even if he believed it himself.

Perhaps they were pre-screening for deployment to Australia?

Indeed. Sully's the perfect person to smear on "integrity".....words just fail me.

 

[EastUS]

Oh yes brave Warrior. That's all that meeting was about, toys. Funny how you brave, (self proclaimed Warriors ....

Sorry. I wasn't there, nor would have tolerated the middle-school antics. I'd have walked out in disgust. That's moot in any case, as I'm not an officer of the union and speak only for myself.

 

[veritasaequitas]

I agree with you on the state of the profession. I never thought I'd see the day that ones own Union would demand payment, threaten your career, sue innocent members under Organized Crimes laws, abrogate every agreement they've made and show such a vulgar display of power abuse, void of even the smallest measurement of integrity. If USAPA is what a pilot union is going to look like in Future, the whole profession deserves to be thrown in a cess pool.

Demanding dues payments from you by USAPA, was brought about because you did not send them in.

Your career was threatened only because you decided to not pay your union dues.

The members that are being sued are not innocent, they sent feces, rocks and threats via the US Mail system. They threatened their own pilots who wanted to become USAPA reps out West. Now the West pilots are advocating their members to become dues current so they have a say, long overdue.

You are a victim of your own emotional decisions you made in the past.

 

[Metroyet]

The members that are being sued are not innocent, they sent feces, rocks and threats via the US Mail system. They threatened their own pilots who wanted to become USAPA reps out West. Now the West pilots are advocating their members to become dues current so they have a say, long overdue.

PROVE IT.

 

[veritasaequitas]

AWA used to ask their interviewees how they would define integrity.

Sully's answer probably wouldn't be acceptable though, even if he believed it himself.

Exactly what are you referring to. Are you, a West pilot, questioning East pilot Captain Sullenberger's integrity? Am I misinterpreting your quote above? If so what were you trying to say. Thank you for your reply.

 

[lynyrdskynyrd]

Demanding dues payments from you by USAPA, was brought about because you did not send them in.

Your career was threatened only because you decided to not pay your union dues.

The members that are being sued are not innocent, they sent feces, rocks and threats via the US Mail system. They threatened their own pilots who wanted to become USAPA reps out West. Now the West pilots are advocating their members to become dues current so they have a say, long overdue.

You are a victim of your own emotional decisions you made in the past.

People were put in that suit for posting less offensive things than you just did. Yes, they are innocent.

 

[hp_fa]

Exactly what are you referring to. Are you, a West pilot, questioning East pilot Captain Sullenberger's integrity?

Wow, what a loaded question!

First a correction to address "East pilot Captain Sullenberger's" status. He is an ex-US Airways (and PSA) pilot who is no longer a pilot at US Airways.

Ex-Captain Sullenberger damaged his own credibility in front of a full courtroom with his ridiculous definition of what integrity means. Go find it in the trial transcripts. I can tell you that the jury had strange expressions on their faces as they heard him define integrity. Most of the rest of us could not believe he said what he said, but Seham was sure pleased with his (well rehearsed) response.

Now if I ever need a pilot to land a large twin engine plane that loses both of those engines at around 3200" AGL near a river I will look up (ex) Captain Sullenberger. If I want someone to define integrity I would probably not consider him for that role after what I saw in that courtroom.

 

[cleardirect]

Demanding dues payments from you by USAPA, was brought about because you did not send them in.

Your career was threatened only because you decided to not pay your union dues.

The members that are being sued are not innocent, they sent feces, rocks and threats via the US Mail system. They threatened their own pilots who wanted to become USAPA reps out West. Now the West pilots are advocating their members to become dues current so they have a say, long overdue.

You are a victim of your own emotional decisions you made in the past.

According to a federal judge in North Carolina. You have made a false accusation. Charges dismissed with prejudice. You can read right?

I suggest that you stop making false claims since you know them to be untrue.

 

[veritasaequitas]

Ex-Captain Sullenberger damaged his own credibility in front of a full courtroom with his ridiculous definition of what integrity means. Go find it in the trial transcripts. I can tell you that the jury had strange expressions on their faces as they heard him define integrity. Most of the rest of us could not believe he said what he said, but Seham was sure pleased with his (well rehearsed) response.

Damaged credibility is only your humble opinion. Perhaps you can include quotes that would substantiate your personal recollection of the proceedings that day. Your attempt to damage Captain Sullenberger's reputation to further your gain is unconscionable.

 

[Pi brat]

So what you want is to ignore the PID date and reset it to some other more favorable time to the east.

Try reading the posts before you reply. Show me where I said that.