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

[Poug Darker]

After reading the majority opinion of the 9th, it is my opinion that winning a DFR claim against USAPA after a ratified contract is in place will be extrememly difficult because of the 'wide range of reasonableness' that a court must consider. Also, definite and quantifiable damages must have occurred. A new contract may ameliorate those perceived damages to the point where they are inconsequential.
Also, the voting record of the 'west' will be scrutinized for if the majority of 'west' eligible voters approve, the dissenters have no case.
So, a fair contract that enhances everyone's compensation that passes by a majority vote should stand up in court. Once ratified, all other agreements prior become null and void. So, reintroducing the Nic at some future date seems like a far-fetched dream to me.
Cheers.

 

[luvthe9]

Pay attention to what I wrote.


Why was your lawyer set against you leaving ALPA? His opinion was that if you leave ALPA.

Why would his opinion change now. No the ninth did not say the Nicolau is dead. So the fact remains. usapa can not get rid of the Nicolau award.

Glad to see you guys have figured out the the injunction is still in place. It will remain in place until the en banc decides. So what has changed in the last two years of usapa trying to get a contract? usapa is free to work on the other 29 sections. How many have the agreed to? 5-6 at this rate your guys might get a new contract after you retire.

Please use the list that was already submitted. It will make the DFR case so much easier. The ninth has already said that that would be an unquestionably ripe DFR case.

Clear, you are fast losing credibility along with Nic4us with regard to the Nic being a requirement. And USAPA being bound by the Nicolau Award. Truth be known, you were probably on track up to a week Friday. There were some doubts in my mind regarding the Nic, and how far reaching it was going forward. Always a concern. And the Wilder address of same raised some issues also. You have to give his concerns merit . I still thought, but not beyond a doubt, that the Nic could be negotiated out. Yet it is was my opinion only. Another judge, and not Wake- may have held that view also. Not that it was a strong fear, but it was there. As a result, we were really prepared to wait you and the West out on a contract. The Nic is that onerous. The LOA 84 grievance, and its' success would dictate that as a path. One way or another. Now, I see the LOA 84 possible win as an ace in the hole. And if it comes by early fall as a win? Then that much better and that much more leverage. But how is the game played going forward? Very carefully. Very carefully. We are going to have to give the West some small but mildly painful ground. Pain is in the eye of the beholder. I would imagine some will be very upset. Me? I think you have to be given some ground, or it will be a DFR going forward. But it will not be the Nic. The Nic and its demise is why we have to give you some running room. So you will get some. And it will kill your chances for DFR going forward. You are going to be damage free, so when the time comes, this mess can be merged. And if you sue? Well, lets' say there will not be much to be called damage after we smooth over the cracks. You will have the appearance of going after the unobtainable. And then it will be the reality of the unachievable. Paid for by fewer and fewer. It will be painful in the pocket near the end of this. As a side, loved the reference of the trial being a "hobby" for the honorable Neil V Wake. That, was priceless......

 

[cleardirect]

Clear, you are fast losing credibility along with Nic4us with regard to the Nic being a requirement. And USAPA being bound by the Nicolau Award. Truth be known, you were probably on track up to a week Friday. There were some doubts in my mind regarding the Nic, and how far reaching it was going forward. Always a concern. And the Wilder address of same raised some issues also. You have to give his concerns merit . I still thought, but not beyond a doubt, that the Nic could be negotiated out. Yet it is was my opinion only. Another judge, and not Wake- may have held that view also. Not that it was a strong fear, but it was there. As a result, we were really prepared to wait you and the West out on a contract. The Nic is that onerous. The LOA 84 grievance, and its' success would dictate that as a path. One way or another. Now, I see the LOA 84 possible win as an ace in the hole. And if it comes by early fall as a win? Then that much better and that much more leverage. But how is the game played going forward? Very carefully. Very carefully. We are going to have to give the West some small but mildly painful ground. Pain is in the eye of the beholder. I would imagine some will be very upset. Me? I think you have to be given some ground, or it will be a DFR going forward. But it will not be the Nic. The Nic and its demise is why we have to give you some running room. So you will get some. And it will kill your chances for DFR going forward. You are going to be damage free, so when the time comes, this mess can be merged. And if you sue? Well, lets' say there will not be much to be called damage after we smooth over the cracks. You will have the appearance of going after the unobtainable. And then it will be the reality of the unachievable. Paid for by fewer and fewer. It will be painful in the pocket near the end of this. As a side, loved the reference of the trial being a "hobby" for the honorable Neil V Wake. That, was priceless......

Losing credibility as defined by you is not going to bother me in the least. Winning or losing the LOA 93 grievence is that what you guys are leaning on now? If as you say you are free to do what ever you want why wait for a contract? It will have everything that you want right? The NAC will demand and receive the moon.

Read the ninth again. If usapa brings the same offer it is unquestionably a ripe DFR. Anything with DOH is a DFR.

But now you are admitting that you have to give us something, interesting. Where is that DFR line? Is it closer to the Nicolau or is it closer to the unquestionable DFR that you already tried? I would say the only safe and sure place is the Nicolau.

"Smooth over the cracks" Would that be by taking 90% of the economics for the east? Is that what you consider smooth?

All it takes is one west pilots to be harmed to file the DFR. Stay safe stick with the Nic.

 

[luvthe9]

Losing credibility as defined by you is not going to bother me in the least. Winning or losing the LOA 93 grievence is that what you guys are leaning on now? If as you say you are free to do what ever you want why wait for a contract? It will have everything that you want right? The NAC will demand and receive the moon.

Read the ninth again. If usapa brings the same offer it is unquestionably a ripe DFR. Anything with DOH is a DFR.

But now you are admitting that you have to give us something, interesting. Where is that DFR line? Is it closer to the Nicolau or is it closer to the unquestionable DFR that you already tried? I would say the only safe and sure place is the Nicolau.

"Smooth over the cracks" Would that be by taking 90% of the economics for the east? Is that what you consider smooth?

All it takes is one west pilots to be harmed to file the DFR. Stay safe stick with the Nic.

"Stay safe stick with the Nic?" Now this is a dangerous pathway also. Painfully flies in the face of the USAPA Constitution. Cannot go that way. Explain how the economics are not going to be disadvantageous to the West? The deck is already stacked in the wests' favor, you saw to that. Just a little trimming to take care of the rest of us. After all, you designed that play.Every other merge candidate saw the folly of a divided house. You know, the house divided falling? Absolutely we will give you something. After all, let's be fair. What that something is, we will only have to wait to see. Any suggestions?, and please. Leave the Nic out of this. As far as one and one pilot only being harmed? That better be a pretty specific harm you have in mind. If it is a general contract situation, you are probably better forgetting it. But if it makes you happy? Then file away. It is that easy to file.But even more difficult to pay. Just remember, they are going to ask, again, "Where was the damage???"And if the damage is you being unable to take say 13-18 yrs. of service uninterrupted from another pilot, you are really going to be getting some serious scrutiny. Try telling that to a judge or jury, Good luck. You have to know you will be needing it.

 

[Phoenix]

Losing credibility as defined by you is not going to bother me in the least. Winning or losing the LOA 93 grievence is that what you guys are leaning on now? If as you say you are free to do what ever you want why wait for a contract? It will have everything that you want right? The NAC will demand and receive the moon.

Read the ninth again. If usapa brings the same offer it is unquestionably a ripe DFR. Anything with DOH is a DFR.

But now you are admitting that you have to give us something, interesting. Where is that DFR line? Is it closer to the Nicolau or is it closer to the unquestionable DFR that you already tried? I would say the only safe and sure place is the Nicolau.

"Smooth over the cracks" Would that be by taking 90% of the economics for the east? Is that what you consider smooth?

All it takes is one west pilots to be harmed to file the DFR. Stay safe stick with the Nic.

Do you know WTF "ripe" means? News flash, "ripeness" has NOTHING to do with the terms of what USAPA negotiates with the company. "Ripe" is not a determination of what is right or wrong, legal or illegal. It is only the time at which such a question is properly admitted in suit before a court. Proof: if USAPA puts out the Nic for a vote, the East doesn't have a ripe DFR case until the Nic is ratified in a new contract.

Take your advice and read the 9th, now that you know what ripe is and isn't.

 

[nic4us]

Clear, you are fast losing credibility along with Nic4us with regard to the Nic being a requirement. And USAPA being bound by the Nicolau Award.

Luv,

Did you read the majority opinion?

I do not have it in front of me so I will paraphrase. When discussing the "thorny question" of if usapa is bound to the arbitrated award, they said "plaintiffs may find that usapa's future proposal is not as damaging as they feared". i.e. usapa can try and avoid future litigation by not putting out a proposal that invokes the West'wrath, and usapa is "at least as free as the predecessor union to abandon the Nic", well the only way ALPA could abandon the Nic is if the West were willing to give it up.

Since usapa has caused us all much harm, and cost us hundreds of millions in lost pay and benefits, not to mention another couple million in direct legal fees, the West is going to shove the Nic so far up usapa's rear they will have Ns in their eyeballs.

So relax, it takes 4 to 8 weeks to see if we get en banc, meanwhile usapa is still under Wake's injunction.

Then if our request for en banc is denied, you can pass something to the company and see if they are willing to risk a suit.

Then if the company accepts your proposal, we wait for a completed TA to be put out for a vote, at which time we sue with the "certainty of an unquestionably ripe DFR".

That is if the company is willing to negotiate while there is a request pending at the SCOTUS.

So go ahead and pat each other on the back, usapa has won 2 very big benefits for itself, it does not have to pay the West's legal fees, and it has secured months if not years of further delay. But it has moved very little toward the goal of stealing West jobs by getting rid of the Nic.


P.S. I could care less about my credibility on this board. I am only here for the entertainment, and usapa squirming is entertainment at its finest.

 

[nic4us]

Proof: if USAPA puts out the Nic for a vote, the East doesn't have a ripe DFR case until the Nic is ratified in a new contract.

Yeah, and then all the east has is a losing DFR suit. But go ahead and sue yourself.

I can just see that now, judge asks east pilots, where are your damages? east pilots respond, we were not allowed to unilaterally decide to be senior to the West pilots and steal their jobs, after entering into a binding arbitration in which a result we did not like was awarded. It is just not fair judge, "binding" don't mean "binding" when it is "internal", our short little lawyer says so. Arbitrations can be negotiated like crew meals, as long as we take a vote. Nicolau was senile. Parker and Lakefield don't know anything about running companies. Wake was just a desert judge who does not know the law. The jury was biased. The 9th did not say that. You can't tell us what to do the RLA says so. It is all soooo unfair, whaaaa.

 

[cleardirect]

"Stay safe stick with the Nic?" Now this is a dangerous pathway also. Painfully flies in the face of the USAPA Constitution. Cannot go that way. Explain how the economics are not going to be disadvantageous to the West? The deck is already stacked in the wests' favor, you saw to that. Just a little trimming to take care of the rest of us. After all, you designed that play.Every other merge candidate saw the folly of a divided house. You know, the house divided falling? Absolutely we will give you something. After all, let's be fair. What that something is, we will only have to wait to see. Any suggestions?, and please. Leave the Nic out of this. As far as one and one pilot only being harmed? That better be a pretty specific harm you have in mind. If it is a general contract situation, you are probably better forgetting it. But if it makes you happy? Then file away. It is that easy to file.But even more difficult to pay. Just remember, they are going to ask, again, "Where was the damage???"And if the damage is you being unable to take say 13-18 yrs. of service uninterrupted from another pilot, you are really going to be getting some serious scrutiny. Try telling that to a judge or jury, Good luck. You have to know you will be needing it.

May I suggest something. Go back and listen to the oral arguments in front of the ninth. Listen to Seham explain that unions can and do ignore provision of the C&BL. It was after judge Graber asked about placing women junior to men.

A C&BL is not binding ( there is that word) on the company. So if a union had in their C&BL that they will be the highest paid pilots in the industry would that mean they get the pay? Would it mean that someone could sue for DFr because the union was unable to deliver that promise?

You all might want to read the C&BL a little closer. The key word being objective not guarantee. How does DOH maintain a furloughed pilots career expectation of returning to the bottom of the list un-merged but DOH merged returns him from furlough to line holding captain? How does a west FO about to upgrade unmerged now go behind 1000 east F/O's merged by DOH. Neither of those maintain un-merged expectations.

SECTION 8. OBJECTIVES OF USAPA

D. To maintain uniform principles of seniority based on date of hire and the perpetuation thereof, with reasonable conditions and restrictions to preserve each pilot’s un-merged career expectations.


Nope usapa better stick with the Nic and stay safe from DFR. The damage will be measured against the Nicolau. Anything less than that will be harm and costly to usapa.

 

[Phoenix]

...

Nope usapa better stick with the Nic and stay safe from DFR. The damage will be measured against the Nicolau. Anything less than that will be harm and costly to usapa.

You do realize that Lance and the other ALPA FUDleaders were tossed out, in part due to their continual attempt to save pilots from themselves by citing half-truths and outright errors?

 

[ROACLT]

Either some angry AOL'er or your lawyers are not explaining the ramifications of the 9th Circuits ruling to you or the fact they had this opinion published and the meaning of that. Not once does the 9th Circuit reference the Nicalou award as a seniority list but always a "seniority proposal". An argument made by both, USAPA's legal team in Wake's court, and America West pilot group's own merger counsel Jeff Freund in the ALPA vs ALPA lawsuit. Numerous times and clearly with intent the 9th Circuit refers to the Nicalou Award as an "internal union process", which again is the very argument Seham made all along. The court made it clear, they leave USAPA free to bargain in "good faith" pursuant to its Duty of Fair Representation and they make it clear by including East pilots in the statement that is a collective interest. Courts are very precise with the language they use and it is interesting and both clear, the intent of the 9th Circuit in reading the transcripts from Wake's court, to arguments of Seham, to the language used in the 9th Circuit ruling. In their opinion, they cited the very argument that Seham made in district court that ALPA's own agreements and "seniority proposal" created the potential for an indefinite veto and impasse. It isn't coincidence when Jurists are precise in that way, and it was a very gentle but not to subtle redressing of what happened in Wake's court.

As discussed numerous times, the legal standard if a DFR claim is made toward USAPA in the future will have nothing to do with the Nicalou Award, it will be the standard of "Good Faith" pursuant to a unions DFR responsibilities. USAPA will only have to show that its seniority integration methods fall within a wide range of reasonable behavior and the litmus will be the comparison to the vast body of evidence, mountains and mountains of it, showing that unions historically integrate similarly skilled individuals in the same craft by DOH. They could produce 1000s of examples if necessary including the other labor unions on the property, its own history in the Allegheny-Lake Central, Allegheny-Mohawk, USAir-PSA, and USAir-Piedmont mergers. They could show ALPA merger policy is vague and ever changing according to political whims of its most powerful members. I.e., UAL backing the language of preference toward Date of Hire in 1986 because they had 18 year DC8, 747, 727, and DC10 Flight Engineers coming into the 80's, to being behind the change in 1992 removing the language because of changed demographics, to being behind the change in 2010 adding longevity and category and status which now advantages its position in merging with CAL. There is such a body of longevity based integrations as the standard for 99.9% of labor unions, the history of the political shifts that has created a vague and changing ALPA policy, to the case precedent of DOH in DFR lawsuits.

The part referring to a "unquestionably Ripe DFR case" when a contract is ratified, is simply a statement of fact. By rendering this decision and ordering it published the 9th Circuit has just issued precedent that a claim can only be considered Ripe with a ratified agreement, that is all. In no way does it infer that any claim made by the Addington plaintiffs,or any others in the future would be legitimate, have merit, or offer success in any way. The standard though now with this issuance of their ruling and dismissing Wake's ruling is that a case must be made for a breach of "Good Faith" pursuant to a USAPA's DFR obligations, not that they didn't use the "internal ALPA generated seniority proposal". Again precise language, well defined in labor law and responsibilities of a union in its DFR obligations. There is a reason, Wake would not allow a true defense in defending against the plaintiffs claim of a breach in "good faith" or properly instructing the jury in its legal definition as it relates to DFR and likewise, a reason the 9th Circuit, though not obligated in reversing on ripeness, took the opportunity to clarify the legal standard under which USAPA's legal responsibilities lay.

 

[oldiebutgoody]

Man, that was a great post!

 

[luvthe9]

Man, that was a great post!

I absolutely second this. ROACLT, you absolutely know what is going on. There is a fundamental denial of fact taking place, especially Clear and Nic4US. It is so profoundly inaccurate, it gets tiresome responding. All I can say, is wait. If they are any indication of the majority of the West, and I think they are NOT, but if they are, the process will go on for a long time. And it will be very expensive, and the outcome, will be just like the 9th. This time, we should go for damages and fees.

 

[boeingplt]

Did you read the majority opinion?

I do not have it in front of me so I will paraphrase. When discussing the "thorny question" of if usapa is bound to the arbitrated award, they said "plaintiffs may find that usapa's future proposal is not as damaging as they feared"

Hey Nic4, how they hangin big guy? I think you may be doing a tad bit more than paraphrasing... allow me to provide the entire the sentence noting the half which you conveniently left out ...

"Additionally, USAPA’s final proposal may yet be one that does not work the disadvantages Plaintiffs fear, even if that proposal is not the Nicolau Award."

Have a nice day

 

[luvthe9]

Contrary to what the West says, SEHAM absolutely did the best job ever.

 

[233KILLS]

Either some angry AOL'er or your lawyers are not explaining the ramifications of the 9th Circuits ruling to you or the fact they had this opinion published and the meaning of that. Not once does the 9th Circuit reference the Nicalou award as a seniority list but always a "seniority proposal". An argument made by both, USAPA's legal team in Wake's court, and America West pilot group's own merger counsel Jeff Freund in the ALPA vs ALPA lawsuit. Numerous times and clearly with intent the 9th Circuit refers to the Nicalou Award as an "internal union process", which again is the very argument Seham made all along. The court made it clear, they leave USAPA free to bargain in "good faith" pursuant to its Duty of Fair Representation and they make it clear by including East pilots in the statement that is a collective interest. Courts are very precise with the language they use and it is interesting and both clear, the intent of the 9th Circuit in reading the transcripts from Wake's court, to arguments of Seham, to the language used in the 9th Circuit ruling. In their opinion, they cited the very argument that Seham made in district court that ALPA's own agreements and "seniority proposal" created the potential for an indefinite veto and impasse. It isn't coincidence when Jurists are precise in that way, and it was a very gentle but not to subtle redressing of what happened in Wake's court.

As discussed numerous times, the legal standard if a DFR claim is made toward USAPA in the future will have nothing to do with the Nicalou Award, it will be the standard of "Good Faith" pursuant to a unions DFR responsibilities. USAPA will only have to show that its seniority integration methods fall within a wide range of reasonable behavior and the litmus will be the comparison to the vast body of evidence, mountains and mountains of it, showing that unions historically integrate similarly skilled individuals in the same craft by DOH. They could produce 1000s of examples if necessary including the other labor unions on the property, its own history in the Allegheny-Lake Central, Allegheny-Mohawk, USAir-PSA, and USAir-Piedmont mergers. They could show ALPA merger policy is vague and ever changing according to political whims of its most powerful members. I.e., UAL backing the language of preference toward Date of Hire in 1986 because they had 18 year DC8, 747, 727, and DC10 Flight Engineers coming into the 80's, to being behind the change in 1992 removing the language because of changed demographics, to being behind the change in 2010 adding longevity and category and status which now advantages its position in merging with CAL. There is such a body of longevity based integrations as the standard for 99.9% of labor unions, the history of the political shifts that has created a vague and changing ALPA policy, to the case precedent of DOH in DFR lawsuits.

The part referring to a "unquestionably Ripe DFR case" when a contract is ratified, is simply a statement of fact. By rendering this decision and ordering it published the 9th Circuit has just issued precedent that a claim can only be considered Ripe with a ratified agreement, that is all. In no way does it infer that any claim made by the Addington plaintiffs,or any others in the future would be legitimate, have merit, or offer success in any way. The standard though now with this issuance of their ruling and dismissing Wake's ruling is that a case must be made for a breach of "Good Faith" pursuant to a USAPA's DFR obligations, not that they didn't use the "internal ALPA generated seniority proposal". Again precise language, well defined in labor law and responsibilities of a union in its DFR obligations. There is a reason, Wake would not allow a true defense in defending against the plaintiffs claim of a breach in "good faith" or properly instructing the jury in its legal definition as it relates to DFR and likewise, a reason the 9th Circuit, though not obligated in reversing on ripeness, took the opportunity to clarify the legal standard under which USAPA's legal responsibilities lay.

The only reason that the court and lawyers refer to the Nic. as a "proposal" is because the two sides can change it together mutually. But since the east pilot group has eliminated the west union leadership, the change can not be done mutually. There for like it or not both sides are stuck with the Nic and if usapa comes off the Nic you have yourself a DFR.