US Pilots Labor Discussion 6/10- STAY ON TOPIC AND OBSERVE THE RULES

[Barrister]

I am really starting to get suspicious.

You have stated you are in the top 300. Yet you seem to have a dog in the MDA fight. Oldie makes post implying he is probably around 48 years old, but talks like he has assumed the persona of a much more senior pilot. Some of the other ardent east posters keep throwing out misleading claims as to what their status was pre-merger, yet are overly knowledgeable of the status within the ranks of the east furloughs.

More level headed east posters like, nyc, underpants, gracho, pi-brat, piedmont, cubfan(hope he is doing well) et al, seem to have a philisophical difference of opinion, but really do not get overly distraught at the prospects of not being able to steal West jobs. They know they do not like the Nic, but really do not get overly emotional when confronted with its implementation.

So I will simply ask a straight forward question of the east posters.

I am still, and was at the time of the merger, and was for many years prior to that, a 320 captain. I was never furloughed, hold a decent line and get weekends off now and again. usapa would like to put over 1500 F/Os ahead of me, along with a couple hundred furloughees.

My question for the east posters is, was your east seniority below Colello's?

Lets just do something simple....put your YOH below your posts

NICDOA
NPJB
1979

 

[Barrister]

I am really starting to get suspicious.

You have stated you are in the top 300. Yet you seem to have a dog in the MDA fight. Oldie makes post implying he is probably around 48 years old, but talks like he has assumed the persona of a much more senior pilot. Some of the other ardent east posters keep throwing out misleading claims as to what their status was pre-merger, yet are overly knowledgeable of the status within the ranks of the east furloughs.

More level headed east posters like, nyc, underpants, gracho, pi-brat, piedmont, cubfan(hope he is doing well) et al, seem to have a philisophical difference of opinion, but really do not get overly distraught at the prospects of not being able to steal West jobs. They know they do not like the Nic, but really do not get overly emotional when confronted with its implementation.

So I will simply ask a straight forward question of the east posters.

I am still, and was at the time of the merger, and was for many years prior to that, a 320 captain. I was never furloughed, hold a decent line and get weekends off now and again. usapa would like to put over 1500 F/Os ahead of me, along with a couple hundred furloughees.

My question for the east posters is, was your east seniority below Colello's?

And the reason we know so much about these guys is because we have been flying with them for 25 years.....GOT IT YET

NICDOA
NPJB
1979

 

[ROACLT]

ROACLT,

One has to read without confirmation bias to get a comprehensive view. While what you state as your opinion is as valid as any other's, it is not exclusive. I have a relative whom is a circuit judge who has advised me that legal writing, as well as reading, is a fine art and those who practice it at the highest level craft their language carefully.

With that in mind let us review the language you have been discussing. See the footnote in its entirety below:

3We do not address the thorny question of the extent to which the Nicolau Award is binding on USAPA. We note, as the district court recog-nized, that USAPA is at least as free to abandon the Nicolau Award as was its predecessor, ALPA. The dissent appears implicitly to assume that the Nicolau Award, the product of the internal rules and processes of ALPA, is binding on USAPA. See Diss op. at 8021-22.

The judge with whom I spoke actually saw this as very powerful argument to USAPA's legal position. It is an indication the 9th Circuit views the Nicalou award as a seniority proposal and that ALPA, recognizing it as such was attempting to modify as to be accepted by the "majority". Acceptable by the "majority" and the cases cited during this trial and appeal despite Wake's intervention has been upheld as within the standard of "good faith", or a wide range of reasonable behavior. This footnote in context with the others actually points out that seniority and subsequent integration until it is codified and cemented in a collective bargaining agreement exists only as a proposal that must be arrived at in "good faith" and accepted by the majority. You are taking the footnote out of context and ignoring everything else the majority said.

We must not fall into the trap of viewing “judicial phrases severed from their environment”. “USAPA is at least as free to abandon the Nicolau as was it’s predecessor, ALPA.” is the phrase that has drawn much attention.

I was not doing so and when speaking with the judge I am acquainted with, was impressed at the comprehensive look that he took and the things pointed out that I missed or had not tied together.

Let us examine the footnote starting from the beginning. They describe the question of binding as “thorny”, why is that? It may be because the contractual process delineated in the Transition Agreement and case law, suggests that it is, but not definitively. Next, they note about freedom to abandon the Nic with the modifier “as the district court recognized”. The district court opined about the Nic as well as “good faith” in regards to the union’s obligations of the DFR. See excerpts below (taken out of context of the whole of course)


The award, according to USAPA, was imposed on the East Pilots without their consent; ALPA, and by extension USAPA, remained free to order its affairs as though the award had never happened. This argument offends common sense, the evidence, and fundamental principles of law. In the context of labor rights, it is both discordant and irrelevant.

This was a finding of Wake's that is wholly irrelevant now and has no bearing on the law. Legal precedent as it now exists in the 9th Circuit resides in the published opinion of the majority. If anything this was a reminder to Wake, he didn't even follow the law as he clearly understood it. The 9th Circuit cited ALPA v O'Niel and Ford Motor v Huffman to ensure there was no confusion as to the definition of the legal matters at issue.

=====================

Even when an internal union arbitration resolves a seniority dispute, it is not necessarily improper for a union to pursue an alternative outcome. Associated Transport, Inc., 185 NLRB 631, 635 (1970) (unfair labor practice case). USAPA clings to these generalities, but they give no protection here. The question is not whether USAPA made a seniority proposal that is acceptable in the abstract, or whether USAPA deprived certain employees of their property rights, or what position it could have taken before agreement to a different final and binding process. The question is not whether USAPA has the right to adjust its bargaining position, even after playing out an agreed final and binding process, for some good reason. The legal question is whether USAPA—or any union—violates its duty of fair representation by adopting and promoting a certain integrated seniority list for no reason other than to favor one group of employees at the expense of another. An established genre of fair representation decisions says yes.

As you must be aware, if you did indeed speak to a judge, anything that occurred in a legal proceeding that lacked jurisdiction or the opinion of a dissenting judge has no bearing on the case or precedent or the legal standard going forward. To use any finding of Wake's or the dissenting judge is a useless exercise as they or any other judge will be bound by the findings of the majority decision.

======================

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.

Finally they reference that the dissenting opinion implicitly assumes the Nic is binding on the union.

The conclusion is that the freedom to negotiate, as expressed, may not be as free as you state. You conclude the Nic is not binding, that good faith goes hand in hand with “a wide range of reasonableness” that is not wholly “irrational” or “arbitrary” and that abandoning the Nic and adopting DOH meets those criteria.

I believe that the ninth circuit’s opinion was mainly limited to ripeness, and that several issues that the district court proceedings brought forth, which were not addressed in the ninth’s opinion, will be important as this process moves forward. Good faith is equal to “honesty of purpose”, “USAPA’s sole objective in adopting and presenting its seniority proposal to the Airline was to benefit East Pilots at the expense of West Pilots, rather than to benefit the bargaining union as a whole.”, and “legitimate union objective”. These issues were not addressed by the ninth circuit and are instrumental in determining the union’s ability to freely negotiate an integrated seniority list without liability of DFR. Please reread the dissenting opinion again. It reinforces the notion that this whole seniority food fight involves complex arguments that have yet to be settled.

Again, just my opinion.

You cut and past well but mixing the findings of Wake or the opinion of the dissenting judge is clearly an example of taking things out of context to support and an opinion. As to the legal understanding of the decision published by the majority your relative need to take a legal refresher.

 

[oldiebutgoody]

The judge with whom I spoke actually saw this as very powerful argument to USAPA's legal position. It is an indication the 9th Circuit views the Nicalou award as a seniority proposal and that ALPA, recognizing it as such was attempting to modify as to be accepted by the "majority". Acceptable by the "majority" and the cases cited during this trial and appeal despite Wake's intervention has been upheld as within the standard of "good faith", or a wide range of reasonable behavior. This footnote in context with the others actually points out that seniority and subsequent integration until it is codified and cemented in a collective bargaining agreement exists only as a proposal that must be arrived at in "good faith" and accepted by the majority. You are taking the footnote out of context and ignoring everything else the majority said.



I was not doing so and when speaking with the judge I am acquainted with, was impressed at the comprehensive look that he took and the things pointed out that I missed or had not tied together.



This was a finding of Wake's that is wholly irrelevant now and has no bearing on the law. Legal precedent as it now exists in the 9th Circuit resides in the published opinion of the majority. If anything this was a reminder to Wake, he didn't even follow the law as he clearly understood it. The 9th Circuit cited ALPA v O'Niel and Ford Motor v Huffman to ensure there was no confusion as to the definition of the legal matters at issue.

=====================



As you must be aware, if you did indeed speak to a judge, anything that occurred in a legal proceeding that lacked jurisdiction or the opinion of a dissenting judge has no bearing on the case or precedent or the legal standard going forward. To use any finding of Wake's or the dissenting judge is a useless exercise as they or any other judge will be bound by the findings of the majority decision.

======================



You cut and past well but mixing the findings of Wake or the opinion of the dissenting judge is clearly an example of taking things out of context to support and an opinion. As to the legal understanding of the decision published by the majority your relative need to take a legal refresher.

Actually, the fact that those points were included in the Wake decision and the dissenting opinion makes their argument WEAKER, not stronger as the Westies would have you believe. It means that it was considered by the court and rejected. In fact, the decision of the ninth actually addresses the problems with the dissenting opinion.

 

[BoeingBoy]

taking things out of context to support and an opinion.

As you seem to be. Ask your judge sources if the 8th and overrule previous SCOTUS decisions. You take the 9th's ruling and forget the entire legal landscape that surround the issues, then effectively say "see, this is now the law", including some footnote that take a few words from SCOTUS rulings.

I've given you the full quotes from the SCOTUS rulings but apparently you like to ignore that which doesn't agree with your opinion so ask your judges to review Huffman and O'Neill and then ask them if "within a wide range..." is the only standard USAPA must meet.

Jim

 

[nic4us]

And the reason we know so much about these guys is because we have been flying with them for 25 years.....GOT IT YET

NICDOA
NPJB
1979

Barrister,

I believe you when you say you were hired in 1979. I do have trouble understanding how you could have flown with someone for 25 years, who was hired 21 years ago and spent 9 years furloughed. I guess listening to their crying since the Nic came out 3 years ago makes it feel like 25 years.

 

[N903AW]

And the reason we know so much about these guys is because we have been flying with them for 25 years.....GOT IT YET

NICDOA
NPJB
1979

Flying with them along I-279 in Pittsburgh delivering Pizzas for Dominos while on years of furlough from USAir does not count.

 

[Barrister]

Barrister,

I believe you when you say you were hired in 1979. I do have trouble understanding how you could have flown with someone for 25 years, who was hired 21 years ago and spent 9 years furloughed. I guess listening to their crying since the Nic came out 3 years ago makes it feel like 25 years.

That my friend.....is your BIG mistake. You assume that only the furloughed guys were hammered by
NIC...BIG MISTAKE anyone hired here in 82 or later got hurt ...only some get the ultimate hurt under NIC.......
retire at 65 never having left seat pay. Why do you think all of this has gone down??? because of a 9 year furloughee
Like I sad BIG MISTAKE on the West part. Remember you didn't even exist until 83.....

NICDOA
NPJB

 

[Barrister]

Yeah thats good YOH. How about pant size while we are at it?

I don't know is your pants size somehow relative to this ...if so make your case!!

NICDOA
NPJB

 

[usabusdriver]

The judge with whom I spoke actually saw this as very powerful argument to USAPA's legal position. It is an indication the 9th Circuit views the Nicalou award as a seniority proposal and that ALPA, recognizing it as such was attempting to modify as to be accepted by the "majority". Acceptable by the "majority" and the cases cited during this trial and appeal despite Wake's intervention has been upheld as within the standard of "good faith", or a wide range of reasonable behavior. This footnote in context with the others actually points out that seniority and subsequent integration until it is codified and cemented in a collective bargaining agreement exists only as a proposal that must be arrived at in "good faith" and accepted by the majority. You are taking the footnote out of context and ignoring everything else the majority said.

The rest of what the majority said was in the context of ripeness not on the merits of whether or not the Nic is binding.

This was a finding of Wake's that is wholly irrelevant now and has no bearing on the law. Legal precedent as it now exists in the 9th Circuit resides in the published opinion of the majority.
…
As you must be aware, if you did indeed speak to a judge, anything that occurred in a legal proceeding that lacked jurisdiction or the opinion of a dissenting judge has no bearing on the case or precedent or the legal standard going forward. To use any finding of Wake's or the dissenting judge is a useless exercise as they or any other judge will be bound by the findings of the majority decision.

The dissenting opinion arguments can and will be cited in the future, but they do not carry the same weight as the majority opinion, obviously. Interestingly the dissent opined on more than just ripeness concerning the facts in the record, in quite a straight forward manner, where the majority opined in a rather circumspect way. While the rulings the district court made may not be legal precedent when dismissed for ripeness, the same facts evidence and legal question(s) can and will be used in any future litigation concerning DFR. How you define the question is the most relevant part of any litigation. This was the way that the district judge was helpful to the plaintiffs, he helped shape the question.

You cut and past well but mixing the findings of Wake or the opinion of the dissenting judge is clearly an example of taking things out of context to support and an opinion. As to the legal understanding of the decision published by the majority your relative need to take a legal refresher.

Thanks. Of course, that is what we all do. The decision published by the majority unfortunately only pertains to ripeness.

 

[GuntherA320]

How you define the question is the most relevant part of any litigation. This was the way that the district judge was helpful to the plaintiffs, he helped shape the question.

So you're saying Judge Wake helped the plaintiffs out of 1.8 million dollars to "shape a question"?

 

[Barrister]

My case is that all of my fellow east pilots are a bunch of head in the sand, self entitled, lie, cheat, and start a new union with some Micky Mouse constitution that stacks it in the east favor so they get there way. YOH means nothing, and yes alpa SUCKS. So grow up and be a man of your word.

Yea, whatever Dude!!!

Proposed Spirit pay rates from the Company 15 yr Capt 90 Hr.

Now On Signing End of Contract
148.9yr 163.8 200.1 that's thousands
F/O 77 84.7 103

Lets get ready to rumble!!!!

NICDOA
NPJB

 

[233KILLS]

Yea, whatever Dude!!!

Proposed Spirit pay rates from the Company 15 yr Capt 90 Hr.

Now On Signing End of Contract
148.9yr 163.8 200.1 that's thousands
F/O 77 84.7 103

Lets get ready to rumble!!!!

NICDOA
NPJB

Good for the boys at Spirit.
No need to rumble we all have Loa93 on the way.....NOT!!!!!!!

 

[Captain Underpants]

Dear Judges,

We understand you have ordered Judge Wake to dismiss our case but can't you pretend we won and still make USAPA pay us our damages?.......... AOL dba. LOL


From the West pilot group - Leonidas update 6/12:


Yesterday, our attorneys filed a motion to clarify the opinion that was published by the appellate panel hearing our case. Please click to read the PETITION FOR CLARIFICATION FRAP RULE 40.

From the motion:

“The Opinion finds that “Plaintiffs’ DFR claim is not ripe” and orders the case remanded with directions “that the action be dismissed.” Slip Op. at 8014. The Opinion notes that the district court “granted the West Pilot Plaintiffs an injunction against USAPA.” Id. at 8001. It makes only passing reference, however, to the named plaintiffs’ pending personal claims for money damages. 1 The named plaintiffs file this Petition, pursuant to FRAP 40, for clarification as to whether the Court intended to dismiss those claims as well.”

----------------------------------------------------------------------------- 1 The district court explained the procedural posture of the case as follows: [T]rial in the fair representation case was accelerated and bifurcated into two stages to expedite resolution of this urgent case. The first stage would address the liability of the union and the propriety of injunctive relief. In the event of a verdict finding USAPA liable, the second stage would address the causation and quantification of any damages owed to Plaintiffs. Doc. # 593 at 10:19 to 10:23.

When the three judge panel from the 9th circuit rendered its opinion on the Addington case, USAPA President Mike Cleary triumphantly announced that the union was now free from bondage and could pursue the “Gold Standard of DOH” for the pilots of US Airways. On the heels of that announcement were the wildly euphoric pronouncements from the CLT domicile representatives. They explained to us all how the opinion from the 9th completely vindicated USAPA, the founding fathers, and everything USAPA has done in pursuit of the “Gold Standard”. We say hogwash to them both. The truth is very far from their misguided reality.

The Motion for Clarification is separate from the petition for rehearing en banc that was filed on Thursday. The en banc petition went to the entire 9th Circuit and that seeks to have the entire case reviewed by an 11 judge panel. This Motion for Clarification goes to the three judge panel only. A party may seek to have the three judge panel clarify something which is not evident in the opinion. We know that the opinion clearly speaks to the injunction, but the opinion is not clear as to the damages portion of our case. The majority opinion is clear that the injunctive part of our case was not ripe, but damages do not coexist with equitable remedies. That’s why, for example, the damages case was not finished after the trial last year whereas the injunction issued following the trial. We are asking in our petition for the three judge panel to clarify what was dismissed and what was not dismissed.

The principal question we are asking the three judge panel is: If we have already suffered damages and if the liability for damages was concurrent with the liability for the injunction, then how can our case not be ripe for damages when we clearly have suffered by USAPA’s bad faith?

“The named plaintiffs respectfully request that the Court give further consideration to the status of their damages claims – claims that seek remedy for furloughs and demotions that began nearly two years ago. Because the merits of these claims are neither on appeal nor relevant to ripeness, the Court must be careful not to allow merits to factor into its analysis. The named plaintiffs respectfully ask the Court to amend its Opinion to clarify that their individual claims for damages are not dismissed, that the jury’s verdict is not vacated in the context of those claims, and that those claims are remanded for further consideration by the district court.”

Each and every US Airways pilot should begin to question what is coming out of the mouths of USAPA leadership regarding this issue. So far they are not being honest with this pilot group. Rather than take our word as gospel we suggest the following:

1. Contact USAPA President Mike Cleary and ask him to clearly articulate how he believes USAPA is free to negotiate the “DOH Gold Standard” for US Airways Pilots when clearly this is not the case.
2. Contact the Charlotte BPR representatives and ask them to PROVE to you what they put out in their recent update isn’t a total misrepresentation of the facts. The majority opinion does not support what they are saying.
3. Ask USAPA leadership why we are no closer to a single CBA now then we were three years ago? Since April 18, 2008 USAPA has been free to negotiate a single CBA for all of the US Airways pilots. So why don’t we have one?

“The district court found that USAPA “misled the majority about its power to improve their seniority prospects at the expense of the West Pilots.” Id. at 29:6 to 29:7. USAPA misled the majority to have “a mistaken understanding of the law and mismanaged [their] expectations.” Id. at 29:8 to 29:9.”

Cleary and gang continue to try to mislead all US Airways Pilots. Tell USAPA leadership enough already!

The fact of the matter is that although two of the panel judges decided our case was not ripe for an injunction to issue, they were quite clear in the last sentence of Footnote 1 that the majority was giving USAPA a second chance to bargain for all US Airways pilots using an objective standard of what is fair, not a one-size fits-all integration based on one metric – DOH. There are many instances in civil litigation where an agent’s discrimination is attempted to be disguised by what on the surface may seem to be fair, but discrimination is revealed after just a cursory examination. In effect, USAPA’s “DOH is the gold standard because it is applied uniformly across the board” was just one thinly veiled and simplistic attempt to do what is neither fair nor right. Even the 9th Circuit saw this:

“By deferring judicial intervention, we leave USAPA to bargain in good faith pursuant to its DFR, with the interests of all members — both East and West — in mind, under pain of an unquestionably ripe DFR suit, once a contract is ratified.”

What we know from this case is that fairness is to be judged objectively, whether in the initial phase (i.e., an arbitrator who has no interest in decided the integration) or a jury (in a DFR case).

Mike Cleary and gang continue to mislead US Airways pilots. DOH is dead as it can never be reconciled with what is objectively fair. All the 9th has done is to give USAPA a second chance to produce a contract that benefits all US Airways pilots. Mind you, whatever we get will be measured against the expectancies of the last objective evaluation of our seniority integration – the Nicolau Award. That award is not going away folks. Unlike what Seham promised during the NMB decertification drive, the Nicolau is hardly a nullity. If it were then the 9th would not be hitching USAPA’s obligations and duties to that of ALPA: “USAPA is at least as free to abandon the Nicolau Award as its predecessor, ALPA.” Arguably, ALPA could have ignored the Nicolau Award, but they did so at the risk of a DFR suit. Likewise, USAPA is “at least as free to abandon the Nicolau,” but it does so at its own risk.

Practically speaking, there is no way for USAPA to deviate from the Nicolau Award yet at the same time account for the balance of expectancies contained therein. That is essentially why Judge Wake and Judge Bybee believe our case is ripe; to them the outcome of negotiations is irrelevant as any result that is different from the Nicolau cannot possibly pass an objective test of what is fair. Judge Graber and Tashima, however, felt it was best to give the union one more chance to bargain fairly. We are disappointed in that the second chance to USAPA means more litigation and expenses for the West. What it means for the East is many more months (if not years) at bankruptcy wages and work rules. In the end, however, the West merely needs to keep funding this litigation to protect what is ours. As long as the dollars keep coming in, then the West merely needs to wait for the case to be “unquestionably ripe,” as Judges Graber and Tashima said. We will not give up – EVER

 

[VAflyGal]

Are you guys ever gonna stop the name calling, excuse making, flame throwing, low blows and WORK IT OUT?!

You're worse than children in daycare, I swear to the Sandcastle.

Stop your madness and fix it please. I miss the fun, professional, adult pilots I used to know.

Seriously, it's beyond out of control. For the love.