US Pilots Labor Discussion 8/11- STAY ON TOPIC AND OBSERVE THE RULES

[luvthe9]

Moral tirade? All I did was point out that people of moral character don't need a court to tell them to honor their agreements. In fact, even if a court tells someone that a breach of agreement is permissible by law that still doesn’t answer the question as to whether it is morally correct to breach the agreement. This is a concept that should be easily affirmed by any rational human being.

When you helped found J Leonidas K you did not represent the actual situation in a factual form. A lot of people spent a lot of money for nothing on the Addington.

 

[Hate2fly]

When you helped found J Leonidas K you did not represent the actual situation in a factual form. A lot of people spent a lot of money for nothing on the Addington.

luvthe9,

We are going to offer Callaway a job with USAPA legal. The only thing we require is a polygraph.

Hate

 

[Al Legheny]

That was the post of the day! MM!

ROA CLT said:

“Better go back and look at the non-trial in Phoenix. Your attorneys conceded that USAPA had not breached, its DFR responsibilities as it relates to arbitrary or discriminatory behavior. The whole case was predicated on USAPA's good faith responsibilities and even then the judge refused to instruct the jury as to the standard as defined by SCOTUS. It's no wonder the 9th Circuit dealt with the appeal the way they chose, citing the very definition and SCOTUS precedent where it was established.”


The duty of fair representation stands on a three legged stool. A union breaches its duty of fair representation if it acts in a manner that is discriminatory, arbitrary or in bad faith. The Bad Faith leg of that stool has a very specific three part definition. The Addington jury found bad faith, however there is a very specific type of bad faith required in the DFR context. The traditional, non DFR, definition of bad faith is as follows:

bad faith 1) n. intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others. Most states recognize what is called "implied covenant of good faith and fair dealing" which is breached by acts of bad faith, for which a lawsuit may be brought (filed) for the breach (just as one might sue for breach of contract). The question of bad faith may be raised as a defense to a suit on a contract. 2) adj. when there is bad faith then a transaction is called a "bad faith" contract or "bad faith" offer.

In the context of the DFR standard the Supreme Court of the United States has defined bad faith in a much more narrow context.

HUMPHREY v. MOORE, 375 U.S. 335 (1964)
375 U.S. 335
HUMPHREY ET AL. v. MOORE ET AL.
CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY.
No. 17.
Argued October 16, 1963.
Decided January 6, 1964.​

Neither do we find adequate support in this record for the complaint's attack upon the integrity of the union and of the procedures which led to the decision. Although the union at first advised the Dealers drivers that they had nothing to worry about but later supported the E & L employees before the Joint Conference Committee, there is no substantial evidence of fraud, deceitful action or dishonest conduct. Priddy's early assurances to Dealers employees were not well founded, it is true; but Priddy was acting upon information then available to him, information received from the company which led him to think there was no trade or exchange involved, no "absorption" which might bring 5 into play.

The Ninth Circuit has upheld this definition, which was not used in the jury instructions Addington Litigation.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL ANN BECK, ü
Plaintiff-Appellee, No. 05-16414
v. ý D.C. No. UNITED FOOD AND COMMERCIAL CV-02-00495-EHC
WORKERS UNION, Local 99, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
May 14, 2007—San Francisco, California
Filed November 1, 2007
Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain,
and Sandra S. Ikuta, Circuit Judges.


Opinion by Judge Ikut​

Although we cannot deem a union’s exercises of judgment to be wholly irrational and thus arbitrary, a union can still breach the duty of fair representation if it exercised its judgment in bad faith or in a discriminatory manner. Moore v. Bechtel Power Corp., 840 F.2d 634, 636 (9th Cir. 1988). To establish that the union’s exercise of judgment was discriminatory, a plaintiff must produce “substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives.” Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Employees of Am. v.Lockridge, 403 U.S.274, 301 (1971) (internal quotations omitted); see also Vaca, 386 U.S. at 177. To establish that the union’s exercise of judgment was in bad faith, the plaintiff must show “substantial evidence of fraud, deceitful action or dishonest conduct.”

One of USAPA’s principle objections and arguments in the appeal that Wake “got it wrong” was because he didn’t use this definition which is from SCOTUS in Humphrey V. Moore and further upheld by the 9th in Beck v. UFCW. Higher courts will not make that same mistake.

 

[Phoenix]

Wow, has someone taken over for Jimmy Lee Swaggart? MM!

Dear MM, Please forgive me for this observation... he is the Mufti of Morals! That's MoM, or MM for short .

 

[nic4us]

In the context of the DFR standard the Supreme Court of the United States has defined bad faith in a much more narrow context.



the plaintiff must show “substantial evidence of fraud, deceitful action or dishonest conduct.”

One of USAPA’s principle objections and arguments in the appeal that Wake “got it wrong” was because he didn’t use this definition which is from SCOTUS in Humphrey V. Moore and further upheld by the 9th in Beck v. UFCW. Higher courts will not make that same mistake.

Al,

What would you call, dual unionism, lawyer shopping, witholding information from those you seek to elect you, intentional breach of contract, and all around lowlife behavior?

I would call it, as the Supreme Court narrowly descibes "bad faith" as "dishonest conduct".

Simple really, pass anything other than the Nic, get sued, waste money, lose "unquestionably ripe DFR". Not that we have to concern ourselves with it, because that would require usapa to actually get a DOH contract passed, which would require usapa to get a DOH tentative agreement to vote on, which would require usapa to get the company to join you in their "dishonest conduct".

 

[hp_fa]

Here’s a personal example from my own life. I signed a purchase contract on a new house just before the housing market began to fall apart. I put down $20k in earnest money and waited the eleven months for the house to be completed per the terms of the contract. During that eleven month timeframe, numerous new and pre-owned houses came on the market for far less than I had agreed to pay for my new home. The contract was clear – I could default on the contract and forfeit my $20k earnest money. The $20k was irrelevant because I could essentially buy an identical house for about $60k less than my contracted amount. Or for the same money I could have gotten a much larger house and felt like I was making shrewd business decision for doing so. I mildly considered those options but in the end I paid the agreed upon, contracted price for my new house knowing that I might never get my $60k loss back. Why did I do this? Because I signed a contract and agreed to pay a certain price for my home that was built from the ground up according to my word/signature. I didn’t consider walking away from the contract to be within the moral character and standards I hold myself to. The home builder went bankrupt about a year after my purchase because so many people walked away from their contracts and left them with too many empty houses to sell in a bad market. I'm so glad I wasn't one of those people.

I'm not going to disagree with the message that you are trying to send with the analogy, but I would contend that the analogy doesn't quite work.

When you contracted for your house you paid the $20k, and if you were to default on your obligation to finalize the actual purchase of the house that deposit of $20k would have been the builders sole recourse against you. It is similar to the ethical wars going on with both the residential and commercial real estate industries. Some folks feel that defaulting on an obligation is a moral issue and other contend that there are contractual terms contained within the deeds of trust or other instruments that detail what happens in the case of a default. Each parties rights and remedies are spelled out and if a party decides to default the other party's recourse is spelled out in contract, not morals. Consequently we now have a new form of default now going on, it is referred to as a strategic default. The defaulting party can get other property for less rent or lower payments elsewhere and they are willing to allow the default to occur and simply move on, presumably saving a lot of money by doing so.

The East/West debate is different.

 

[nic4us]

Of course the 9th did not find Seham to be an idiot. ROACLT- you are up against a group that has a half understanding of the entire issue. And when they run out of "knowledge" then Seham is the devil. Calloway and the other lawyers, commendable to commit to study and discipline to get the degree, but not commendable when others lacking true knowledge of what is really at hand are convinced to join in a legal crusade that goes off half cocked and spends millions of others money. The founders of Lenidas have convinced hundreds of partial truths, and led them down a path of defeat. Unfortunately, unless there is some move of compromise, this thing is going to drive on for years.

Wow. Have you read the latest CLT and PHL updates? Seriously? You accuse Leonidas of only half an understanding of the issues and partial truths?

I am really starting to get concerned about the repercussions that are going to come from the east setting themselves up once again for the huge letdown heading their way.

Seriously, what is usapa going to say when they find out that they can negotiate away from the Nic,(and be accoutable for the DFR) but the other side of the table says not on your life weasel!

 

[luvthe9]

Al,

What would you call, dual unionism, lawyer shopping, witholding information from those you seek to elect you, intentional breach of contract, and all around lowlife behavior?

I would call it, as the Supreme Court narrowly descibes "bad faith" as "dishonest conduct".

Simple really, pass anything other than the Nic, get sued, waste money, lose "unquestionably ripe DFR". Not that we have to concern ourselves with it, because that would require usapa to actually get a DOH contract passed, which would require usapa to get a DOH tentative agreement to vote on, which would require usapa to get the company to join you in their "dishonest conduct".

And I thought you were referring to Congress.........

 

[nic4us]

And I thought you were referring to Congress.........

snare roll, top hat, crash cymbal.........

That was funny, +1 for you.

 

[767jetz]

You are simply in denial of the fact that the East kept its commitments

???????????????????????
:blink:

 

[Al Legheny]

Al,

What would you call, dual unionism, lawyer shopping, witholding information from those you seek to elect you, intentional breach of contract, and all around lowlife behavior?

I would call it, as the Supreme Court narrowly descibes "bad faith" as "dishonest conduct".

Simple really, pass anything other than the Nic, get sued, waste money, lose "unquestionably ripe DFR". Not that we have to concern ourselves with it, because that would require usapa to actually get a DOH contract passed, which would require usapa to get a DOH tentative agreement to vote on, which would require usapa to get the company to join you in their "dishonest conduct".

Nic4us says:

“What would you call, dual unionism, lawyer shopping, witholding information from those you seek to elect you, intentional breach of contract, and all around lowlife behavior?”

Nic4us,You will have to clarify this a little.

· Dual Unionism? I am not aware that plaintiffs pled this. What count is that in the complaint? Define Dual Unionism, where is the proof and where is the evidence. I have been following this case as closely as the next guy and dual unionism, whatever that is, is not in the complaint.

· Lawyer Shopping? Yes, it’s like car shopping, house shopping or any other shopping for a major purchase. Did your law-firm get pulled out of a hat or the yellow pages? Do they do drunk driving and divorce adds on Phoenix television? Or did your team search, i.e. “shop” for a competent law firm?

· Intentional breach of contract… See the last line of Humphrey v. Moore

· Lowlife behavior? Blocking phone lines, sending feces in the US mail, hanging dolls on flight-decks… You mean that type of stuff?


See what the 7th circuit says about so called “bad motives”



Lee Rakestraw, et al., Plaintiffs-appellees, Cross-appellants, v. United Airlines, Inc., Defendant-appellee, v. Air Line Pilots Association, International,defendant-appellant

United States Court of Appeals, Seventh Circuit. - 981 F.2d 1524

1

Two cases present a common question: does a union's duty of fair representation under the Railway Labor Act block the union from adjusting seniority in a way known to favor some employees over others?

Slapping the label "bad faith" or "discrimination" on a classification that is rationally related to a legitimate objective does not alter the analysis. A discriminatory motive without a discriminatory rule does not condemn a statute. Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971); cf. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) (rule rationally related to legitimate objective not spoiled by religious motivation of some sponsors). Knowledge that some groups gain or lose as a result of a rule does not even amount to a discriminatory motive. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979).

For the reasons developed in Part II of this opinion, however, a "bad" motive does not spoil a collective bargaining agreement that rationally serves the interests of workers as a whole, and that treats employees who are pariahs in the union's eyes no worse than it treats similarly situated supporters of the union.

U.S. Supreme Court

Humphrey v. Moore, 375 U.S. 335 (1964)

…..The power of the Joint Conference Committee over seniority gave it power over jobs. It was entitled under § 5 to integrate the seniority lists upon some rational basis, and its decision to integrate lists upon the basis of length of service at either company was neither unique nor arbitrary. On the contrary, it is a familiar and frequently equitable solution to the inevitably conflicting interests which arise in the wake of a merger or an absorption such as occurred here. The Joint Conference Committee's decision to dovetail seniority lists was a decision which § 5 empowered the committee to make.

…..Despite the change in rights under the prior agreement, this Court held that the existing labor agreement did not limit the power of the parties jointly, in the process of bargaining collectively, to make new and

Page 375 U. S. 355

different contractual arrangements affecting seniority rights. It necessarily follows from Huffman that a settlement of a seniority dispute, deemed by the parties to be an interpretation of their agreement, not requiring an amendment, is plainly within their joint authority.

Just as, under the Huffman decision, an amendment is not to be tested by whether it is within the existing contract, so a grievance settlement should not be tested by whether a court could agree with the parties' interpretation. If collective bargaining is to remain a flexible process, the power to amend by agreement and the power to interpret by agreement must be coequal.



As Mr. Gumby says on Monty Python...."My Brain hurts...." I'm going back to lurking.

 

[Piedmont1984]

The posts are getting too long - my lips are getting tired.

 

[MUTATIS MUTANDIS]

Dear MM, Please forgive me for this observation... he is the Mufti of Morals! That's MoM, or MM for short .

No problem your observation is correct just as Al L's observation of the mailings of "items" to USAPA but that is above the moral line. MM!

 

[Phoenix]

???????????????????????
:blink:

Outsiders need not fret themselves to understand an internal union dispute.

 

[luvthe9]

Of course the prominent point of the majority opinion’s ruling was that the question of seniority is currently an internal union matter. To say otherwise would be to affirm that the matter was ripe and required judicial intervention. All of these citations reflect their opinion that until a CBA is ratified, the question of seniority will remain an internal matter. They certainly did not say that this matter will always and forever be an internal matter and that it would never be subject to a DFR. You seem to be reading into their ruling what you want it to say rather than accepting that by definition a claim that isn't ripe can't be adjudicated by the courts because it hasn't gone beyond an internal dispute by their definition.

IMO if Tashima and Graber had given this particular matter its proper attention they would have understood that all internal union processes had been exhausted and that the dispute could no longer qualify as an internal matter. In fact, since the company was also a party to the TA and had accepted the arbitrated award which means that the issue at hand was no longer a purely internal matter and judicial resolution is/was the only hope for resolution. Wake understood this; Bybee understood this; Tashima and Graber were only concerned about ruling against a labor union in an election year.

Did you ever consider the possibility of numerous posts made earlier, here and other places asserting certain west pilots knew people, clerked or socially knew members of the Phoenix legal structure, including Wake and the 9th- might have possibly been noted by the 9th?There were many insinuations by certain west pilots that they knew Wake, and the 9th appeal would go their way due to this association. And maybe as a result it was looked into, found to be true and Tashima and Graber were selected as a result?