US Pilots Labor Discussion 3/11- STAY ON TOPIC AND OBSERVE THE RULES

[CallawayGolf]

Thanks for a perfect example why the DFR is not ripe.

That's not how a federal judge and a 9 member jury saw it. You're best hope would be that the judges on the 9th make their decisions based on emotion rather than the rule of law. Given the court's track record - there is an ever so slim possibility they will ignore the law.

 

[veritasaequitas]

That's not how a federal judge and a 9 member jury saw it. You're best hope would be that the judges on the 9th make their decisions based on emotion rather than the rule of law. Given the court's track record - there is an ever so slim possibility they will ignore the law.

What law would that be that you are referring to.

 

[aquagreen73s]

Thanks for a perfect example why the DFR is not ripe.

You must have completely missed Judge Graber's hypothetical.

As to the law: http://ftp.resource.org/courts.gov/c/F3/37...69.03-7798.html


As we stated, it now is well settled that the determination of the date of accrual turns on whether "plaintiffs knew or reasonably should have known that ... a breach had occurred." Santos, 619 F.2d at 969 (emphasis added). We have never held that a breach occurs when a union announces an intention, even if it does so unequivocally, to advocate against the interests of its members in the future. Rather, we have held that the breach occurs when the union acts against the interests of its members. To hold otherwise would invite plaintiffs to sue whenever a union official announces a position with which they disagree. This runs counter to our general policy favoring internal resolution of labor disputes (as long as the disputes in question remain internal), Ghartey, 869 F.2d at 164 (citing policy favoring "non-judicial resolution of labor disputes"), and would needlessly clog our court system with litigation over whether a union's position is "final enough" to establish a cause of action. Further, requiring union members to sue whenever a union representative announces plans with which they disagree would put the members in the difficult position of being in an adversarial position against their union — the very same union that simultaneously must represent their interests.3 Childs v. Pennsylvania Federation Bhd. of Maintenance Way Employees, 831 F.2d 429, 435 (3d Cir.1987) (noting the danger associated with filing a lawsuit of antagonizing a union that must continue to represent a plaintiff's interests). For these reasons, we do not require, or even permit, union members to bring a suit against their union simply because the union has announced its future intention to breach its duty.4

28
We find further support for our conclusion in well settled principles of contract law. 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. See Franconia Assoc. v. United States, 536 U.S. 129, 144, 122 S.Ct. 1993, 153 L.Ed.2d 132 (2002) ("[T]he time of accrual ... depends on whether the injured party chooses to treat the ... [anticipatory] repudiation as a present breach.... f the injured party instead opts to await performance, the cause of action accrues, and the statute of limitations commences to run, from the time fixed for performance rather than from the earlier date of repudiation.") (internal quotations marks and citations omitted); Kinsey v. United States, 852 F.2d 556, 558 (Fed.Cir.1988) ("[T]he normal rule is that the statute of limitations begins to run from the date of performance... unless the obligee elects to sue earlier for anticipatory breach."); Cary Oil Co. v. MG Refining and Marketing, 90 F.Supp.2d 401, 412 (S.D.N.Y.2000) ("[T]he statute of limitations for failure to perform [does] not begin to run [even in the case of an anticipatory breach] until the time fixed for performance. The UCC appears to have adopted this approach.").

29
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 IAM advocated a position on the seniority issue to USAir. The December 1998 memorandum did not inform plaintiffs that a breach already had occurred. At best, it informed plaintiffs that IAM intended to breach on some unspecified future date. As such, it alone could not have triggered the statute of limitations. Indeed, we cannot determine from the record precisely when negotiations between IAM and USAir on the seniority issue began, let alone when plaintiffs first learned that such negotiations had begun and that IAM had taken an adversarial position. In sum, there is nothing to suggest that plaintiffs should have known prior to January 28, 1999 that negotiations had begun and a breach occurred. This action was instituted within six months of that date. Therefore, it was timely.5

 

[CallawayGolf]

What law would that be that you are referring to.

The Duty to Fair Representation. Since you are a member/supporter of USAPA you may not be familiar with this law. You might want to ask Lee Seham to explain it to you. No wait, listening to Seham got USAPA found liable already. Perhaps you should seek legal advise from someone a bit more reputable.

 

[N924PS]

I can't speak for USAPA. But I am ready to stop sending my money to lawyers.

That does not mean I will vote for another version of a bankruptcy era contract, which has simply been adjusted a few percentage points for inflation.

IOW, if I ever vote for the NIC, it will be because the rest of the contract is so good - it doesn't matter.

Thanks for the response.

I have been taking a straw poll of my co-workers, Captains and F/O's, and that seems to be the consensus.

They will vote yes for a decent contract that includes the Nic.

 

[veritasaequitas]

You must have completely missed Judge Graber's hypothetical.

What was Judge Graber's hypothetical again? Why don't we review it.

The performance of the West attorney at the 9th Circuit was a less than desirable effort expected from legal counsel, hence their 28j's and 28j type post you are providing.

 

[aquagreen73s]

What was Judge Graber's hypothetical again? Why don't we review it.

Justice delayed is an injustice.

Once again, from Ramey:

29
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 IAM advocated a position on the seniority issue to USAir. The December 1998 memorandum did not inform plaintiffs that a breach already had occurred. At best, it informed plaintiffs that IAM intended to breach on some unspecified future date. As such, it alone could not have triggered the statute of limitations. Indeed, we cannot determine from the record precisely when negotiations between IAM and USAir on the seniority issue began, let alone when plaintiffs first learned that such negotiations had begun and that IAM had taken an adversarial position. In sum, there is nothing to suggest that plaintiffs should have known prior to January 28, 1999 that negotiations had begun and a breach occurred. This action was instituted within six months of that date. Therefore, it was timely.5



Interesting, but I saw nothing in there about ratification being the trigger for ripeness. Even more interesting, Seham couldn't proffer a single case which stood for the proposition that ripenss begins at ratification, and not before.

 

[veritasaequitas]

You must have completely missed Judge Graber's hypothetical.

I am sorry, maybe I did not make my request for clarification clear enough. What was Judge Graber's hypothetical?

 

[aquagreen73s]

I am sorry, maybe I did not make my request for clarification clear enough. What was Judge Graber's hypothetical?

My apologies. I took your question in the wrong light.

Judge Graber asked Andy Jacob a hypothetical towards the end of his time. The hypo was a situation where a union took the position that women should be at the bottom of a seniority list, and to disregard Title VII claims (title VII of the Civil Rights Act of 1964: http://en.wikipedia.org/wiki/Title_VII#Title_VII which would clearly forbid such an act). If that were to happen, she asked Mr. Jacob when the women would have a ripe claim. His response was in line with the Ramey case: as soon as the union advocated such a position in negotiations. Jacob then finished and sat down, Seham got up and had about two minutes remaining. It's here that Seham flat out told her that no, the women would have no claim until there was a ratification vote, even if that were many years away and took several years after that to achieve a judicial remedy.

That's something I wouldn't want to be saying to a female circuit judge, classmate of Bill and Hillary, and staunch feminist. She could have chosen a number of protected classes in the CRA of 1964, but she chose women. Kind of like a black judge choosing skin color or an Islamic judge choosing Muslim employees in the hypothetical.

 

[BoeingBoy]

The audio is available on the 9th Circuit web site.

Jim

 

[jetjok1]

You know, if any incident like this had occurred with someone from the East involved and a person from the West made fun of it in order to try and make points regarding a wholly unrelated pilot arbitration and union dispute I would publicly have posted that I thought the post was low class and irrelevant.

You may infer from that what you chose to.


Hp_fa,

I have to agree. there is no room or reason to even bring that topic up. Kinda tells you something about someone who post that stuff on here. I mean, talk about the weather if you're bored. At least, it's something we can all relate to in our profession. GEEZ!!

 

[EastUS]

Thanks for the response.

I have been taking a straw poll of my co-workers, Captains and F/O's, and that seems to be the consensus.

They will vote yes for a decent contract that includes the Nic.

"I have been taking a straw poll of my co-workers,.." Ummm...just how extensive is this supposed "poll"?..as in: How many will give you the time of day?..1?...Perhaps as many as even 3!!???

 

[veritasaequitas]

My apologies. I took your question in the wrong light.

Judge Graber asked Andy Jacob a hypothetical towards the end of his time. The hypo was a situation where a union took the position that women should be at the bottom of a seniority list, and to disregard Title VII claims (title VII of the Civil Rights Act of 1964: http://en.wikipedia.org/wiki/Title_VII#Title_VII which would clearly forbid such an act). If that were to happen, she asked Mr. Jacob when the women would have a ripe claim. His response was in line with the Ramey case: as soon as the union advocated such a position in negotiations. Jacob then finished and sat down, Seham got up and had about two minutes remaining. It's here that Seham flat out told her that no, the women would have no claim until there was a ratification vote, even if that were many years away and took several years after that to achieve a judicial remedy.

That's something I wouldn't want to be saying to a female circuit judge, classmate of Bill and Hillary, and staunch feminist. She could have chosen a number of protected classes in the CRA of 1964, but she chose women. Kind of like a black judge choosing skin color or an Islamic judge choosing Islamic employees in the hypothetical.

What did Judge Tashima ask your attorney about the Ramey case that caused such a pause in the tape? Remember that? It was not a hypothetical, it was case history. It answers Judge Graber's Question.

 

[veritasaequitas]

That's something I wouldn't want to be saying to a female circuit judge, classmate of Bill and Hillary, and staunch feminist. She could have chosen a number of protected classes in the CRA of 1964, but she chose women. Kind of like a black judge choosing skin color or an Islamic judge choosing Muslim employees in the hypothetical.

Is a Judge not required to be impartial?

 

[CallawayGolf]

Is a Judge not required to be impartial?

Have you paid any attention to the topic of judicial activism over the last 50 years?