US Pilots Labor Discussion-8/12 to 8/19--NO PERSONAL REMARKS
- Thread starter Richard
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cleardirect
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- May 24, 2008
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Yep. This is after usapa argued that there was an impasse and that usapa was trying to break it with DOH.
So a majority of pilots could vote for a contract with the Nicolau in it. But then want a do over ""IF"" the appeals court argees with them.
Did Seham lie to the court and make up an impasse? Could the board posters here be missreading the east pilots? Is it possible that a majority of us airways pilots would vote for a contract with the Nicolau?
usapa thinks so.
exB717Flyer
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- Aug 20, 2002
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So you're telling me that a an airline experiencing two trips through Chapter 11 within three years could've emerged with pensions intact? The future doesn't need to demonstrate anything since the past has already proven the case. I have no idea if there was any impropriety involved in your union leaders' actions but I'm quite certain your pension was a goner regardless.
88 B.T.D.
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Other options were available... perhaps a freeze which would have resulted in an almost fully funded account within 2 years... we will never know. Also, there were members of the MEC that were covered by other pensions from a previous employer program; besides the 2 members who were working on/pooled for jobs at Airtran and Jetblu at the time.
Megasnoop
Veteran
To all you westies, looks like the legal community is beginning to weigh in on the Addington case. One law firm that does a lot of ALPA work (even did some for us) has weighed in already. But what do they know? Open air BLOG discussion. Comments are already recorded.
http://bapwild.com/blog/?p=454
Judge issues injunction against US Airways pilots union
July 27, 2009 on 5:25 pm | In Airlines, Arbitration, Collective bargaining, RLA case law, US Airways, pilot seniority |
A United States District Judge in Phoenix, AZ last week issued an injunction against the union for the pilots of US Airways, the United State Airline Pilots Association (â€USAPAâ€), in the duty of fair representation lawsuit by a group of former America West pilots arising from a USAPA bargaining proposal on seniority integration of the America West and US Airways pilots in its contract negotiations with US Airways. The judge found that USAPA breached its duty of fair representation to West pilots in presenting its proposal, which abandoned the seniority integration arbitration award issued by Arbitrator George Nicolau under the internal merger procedures of the Air Line Pilots Association, the former union of US Airways’ pilots, in favor of a “date of hire†integrated list that favored East pilots much more than did the Nicolau Award.
The court held that USAPA was a successor to ALPA’s “transition agreement†with US Airways, an agreement that established certain procedures for resolving the contract and seniority integration issues arising from US Airways merger with America West. It further held that USAPA was bound to the Nicolau Award because US Airways “East†pilots had selected ALPA and the US Airways Master Executive Council of ALPA as their representative. Since the East MEC agreed to submit the dispute to ALPA Merger Policy (a purely internal union policy), USAPA was therefore bound to the result of ALPA Merger Policy as successor to ALPA.
The judge rejected USAPA’s claim that it was entitled to use a different seniority integration method than the Nicolau Award for integrating the two pilot groups. He held that USAPA had to come up with another legitimate union objective to depart from the Nicolau Award. The judge then rejected all of the other reasons put forward by USAPA.
The judge held that USAPA’s date of hire method so disfavored the West pilots, including greatly increasing their chance of furlough than would occur under the Nicolau Award, that it was a breach of its duty to represent them. It held that USAPA was motivated by bad faith against West pilots, relying on heated campaign rhetoric against the Nicolau Award by certain USAPA supporters during the election against ALPA.
The judge ordered that USAPA must negotiate to implement the Nicolau Award unchanged into a combined collective bargaining agreement. It also ordered that USAPA could not negotiate separate agreements for the pilot groups. A later hearing on monetary damages, if any, will be held.
This decision is wrong, contradicts established law and is dangerous to the state of the law under the Railway Labor Act.
While the judge correctly concluded that USAPA is the successor to ALPA’s collective bargaining agreement, that in no way restricts USAPA from negotiating any and all terms of that agreement, including the Nicolau Award. The judge nowhere considers precedent, such as Association of Flight Attendants v. United Airlines and Association of Flight Attendants v. US Airways, which hold that a predecessor union’s collective bargaining agreement provides only the beginning point for a successor union’s negotiations and the successor is free to negotiate changes to the agreement. To do otherwise would perpetuate the rejected union as representative.
The court also wrongly held that USAPA is bound by the Nicolau Award as the product of ALPA Merger Policy. ALPA Merger Policy is only an internal union procedure. It is not part of the collective bargaining agreement with US Airways (even if it was, USAPA could still negotiate changes to it.) USAPA cannot be bound to ALPA Merger Policy since it is not ALPA, and only ALPA’s subordinate bodies, the Master Executive Councils (which, admittedly, are not real labor organizations) are bound to follow the Merger Policy. The Merger Policy has no standing under the Railway Labor Act and since USAPA’s successor obligations only exist under the RLA, they cannot include ALPA Merger Policy.
Unfortunately, it appears USAPA nowhere argued to the court the fact that, even prior to ALPA being ousted as the union for US Airways’ pilots, the East MEC filed a lawsuit against the West MEC to set aside the Nicolau Award, arguing that it violated their arbitration agreement under ALPA Merger Policy. The court’s conclusion that the East pilots had consented to be bound by the Nicolau Award is simply false because even under ALPA, their representatives took the position that the Nicolau Award was not final and binding, and that it violated ALPA Merger Policy. That lawsuit was only dismissed after ALPA lost the union election to USAPA; so the East MEC never took the position that the Nicolau Award was final and binding.
USAPA did not put forward this fact about the East MEC’s litigation against the Nicolau Award probably because USAPA’s lawyers, who also handled this DFR case, had wrongly asserted during the election with ALPA that the lawsuit was frivolous and doomed to fail.
The court was also wrong about whether the case was ripe to be heard since the only action taken by USAPA was to make a proposal in bargaining. No actual agreement was reached with US Airways to change the Nicolau Award. In fact, the court admitted that US Airways has not responded to the USAPA proposal. So the proposal cannot have caused any injury to the plaintiffs.
The district court held that the case could properly be heard because the statute of limitations might run before the plaintiffs’ could bring suit if they waited for a complete agreement. This is dubious, to say the least, since no one knows what the final agreement might be on seniority and other terms. Since the proposal has no present legal effect you can’t argue that the plaintiffs must file their claim now.
The judge also held that the case should be heard now because of the furloughs ongoing among West pilots. But those furloughs have nothing to do with the USAPA proposal. They are a result of US Airways drawing down its West operation.
Of course, the fact that US Airways is drawing down more on its West operation undermines the entire premise of the Nicolau Award–that West pilots had far greater career expectations and a more viable carrier. Nicolau came to this erroneous conclusion only because of the shallow record before him on America West’s prospects, including his (now obviously wrong) dismissal of a statement by America West President Scott Kirby that AWA had financial distress that required the merger.
Thanks to the court, however, an erroneous arbitration award, based on an erroneous record on the subject of America West’s future, is set in stone.
Finally, the court’s remedy, that USAPA must implement the Nicolau Award unchanged, shows how wrong the court’s decision is. At most, the plaintiffs in this case have proven only that the specific seniority proposal USAPA put forward violates its DFR. That doesn’t mean a different proposal to change the Nicolau Award couldn’t be put forward consistent with the DFR. In fact, the East MEC pilots proposed a settlement to the West pilots prior to ALPA losing its election using a proposal that essentially adopted the Nicolau Award, but mitigated some its effects on the East pilots. That proposal has not been analyzed under DFR, for example, but now under the judge’s order it cannot be put forward.
This decision ignores precedent governing successor unions under the RLA. It defies logic concerning collective bargaining. That one proposal violates the DFR doesn’t mean that all conceivable proposals do. And seniority rights can be structured in a manner to mitigate adverse effects for one employee group while retaining gains for another. Seniority isn’t a zero sum game and not all seniority proposals are created equal.
Yet, this judge holds that just because the extreme proposal initially put forward by USAPA is unsupported by a legitimate union objective that there is no proposal to modify the Nicolau Award that does support a legitimate union objective (such as mitigating disproportionate ill effects on East pilots without depriving West pilots of gains under the award.)
This decision presents a restraint on the ability of union’s to negotiate. And the judge’s holding that plaintiffs may sue over bargaining proposals, not actual agreements, presents the danger that collective bargaining, particularly during unpopular events such as concessionary negotiations, will be bogged down in lawsuits ginned up by plaintiff’s lawyers who, as the court described the plaintiffs’ lawyers here, misstate law and facts.
The decision reads like this case became a hobby for the judge. An explanation for this seemingly inexplicable award comes from the judge’s harsh criticism of USAPA’s attorneys, the law firm of Seham, Seham, Meltz & Peterson:
USAPA has at various stages misstated law, facts,
and procedural history, with frequent recourse to the
“contradiction or confusion . . . produced by a medley
of judicial phrases severed from their environment.â€
As Brendan Sullivan once said, a lawyer is “not a potted plant.†Skillful advocacy is essential to successful litigation. Poor lawyering, much less lawyering that misstates “law, facts and procedural history†(what’s left to misstate?), hurts clients. That certainly seems to be the case here.
I went to this lawyer. He said I didn't have a case, so I went to another lawyer. George W Bush
http://bapwild.com/blog/?p=454
Judge issues injunction against US Airways pilots union
July 27, 2009 on 5:25 pm | In Airlines, Arbitration, Collective bargaining, RLA case law, US Airways, pilot seniority |
A United States District Judge in Phoenix, AZ last week issued an injunction against the union for the pilots of US Airways, the United State Airline Pilots Association (â€USAPAâ€), in the duty of fair representation lawsuit by a group of former America West pilots arising from a USAPA bargaining proposal on seniority integration of the America West and US Airways pilots in its contract negotiations with US Airways. The judge found that USAPA breached its duty of fair representation to West pilots in presenting its proposal, which abandoned the seniority integration arbitration award issued by Arbitrator George Nicolau under the internal merger procedures of the Air Line Pilots Association, the former union of US Airways’ pilots, in favor of a “date of hire†integrated list that favored East pilots much more than did the Nicolau Award.
The court held that USAPA was a successor to ALPA’s “transition agreement†with US Airways, an agreement that established certain procedures for resolving the contract and seniority integration issues arising from US Airways merger with America West. It further held that USAPA was bound to the Nicolau Award because US Airways “East†pilots had selected ALPA and the US Airways Master Executive Council of ALPA as their representative. Since the East MEC agreed to submit the dispute to ALPA Merger Policy (a purely internal union policy), USAPA was therefore bound to the result of ALPA Merger Policy as successor to ALPA.
The judge rejected USAPA’s claim that it was entitled to use a different seniority integration method than the Nicolau Award for integrating the two pilot groups. He held that USAPA had to come up with another legitimate union objective to depart from the Nicolau Award. The judge then rejected all of the other reasons put forward by USAPA.
The judge held that USAPA’s date of hire method so disfavored the West pilots, including greatly increasing their chance of furlough than would occur under the Nicolau Award, that it was a breach of its duty to represent them. It held that USAPA was motivated by bad faith against West pilots, relying on heated campaign rhetoric against the Nicolau Award by certain USAPA supporters during the election against ALPA.
The judge ordered that USAPA must negotiate to implement the Nicolau Award unchanged into a combined collective bargaining agreement. It also ordered that USAPA could not negotiate separate agreements for the pilot groups. A later hearing on monetary damages, if any, will be held.
This decision is wrong, contradicts established law and is dangerous to the state of the law under the Railway Labor Act.
While the judge correctly concluded that USAPA is the successor to ALPA’s collective bargaining agreement, that in no way restricts USAPA from negotiating any and all terms of that agreement, including the Nicolau Award. The judge nowhere considers precedent, such as Association of Flight Attendants v. United Airlines and Association of Flight Attendants v. US Airways, which hold that a predecessor union’s collective bargaining agreement provides only the beginning point for a successor union’s negotiations and the successor is free to negotiate changes to the agreement. To do otherwise would perpetuate the rejected union as representative.
The court also wrongly held that USAPA is bound by the Nicolau Award as the product of ALPA Merger Policy. ALPA Merger Policy is only an internal union procedure. It is not part of the collective bargaining agreement with US Airways (even if it was, USAPA could still negotiate changes to it.) USAPA cannot be bound to ALPA Merger Policy since it is not ALPA, and only ALPA’s subordinate bodies, the Master Executive Councils (which, admittedly, are not real labor organizations) are bound to follow the Merger Policy. The Merger Policy has no standing under the Railway Labor Act and since USAPA’s successor obligations only exist under the RLA, they cannot include ALPA Merger Policy.
Unfortunately, it appears USAPA nowhere argued to the court the fact that, even prior to ALPA being ousted as the union for US Airways’ pilots, the East MEC filed a lawsuit against the West MEC to set aside the Nicolau Award, arguing that it violated their arbitration agreement under ALPA Merger Policy. The court’s conclusion that the East pilots had consented to be bound by the Nicolau Award is simply false because even under ALPA, their representatives took the position that the Nicolau Award was not final and binding, and that it violated ALPA Merger Policy. That lawsuit was only dismissed after ALPA lost the union election to USAPA; so the East MEC never took the position that the Nicolau Award was final and binding.
USAPA did not put forward this fact about the East MEC’s litigation against the Nicolau Award probably because USAPA’s lawyers, who also handled this DFR case, had wrongly asserted during the election with ALPA that the lawsuit was frivolous and doomed to fail.
The court was also wrong about whether the case was ripe to be heard since the only action taken by USAPA was to make a proposal in bargaining. No actual agreement was reached with US Airways to change the Nicolau Award. In fact, the court admitted that US Airways has not responded to the USAPA proposal. So the proposal cannot have caused any injury to the plaintiffs.
The district court held that the case could properly be heard because the statute of limitations might run before the plaintiffs’ could bring suit if they waited for a complete agreement. This is dubious, to say the least, since no one knows what the final agreement might be on seniority and other terms. Since the proposal has no present legal effect you can’t argue that the plaintiffs must file their claim now.
The judge also held that the case should be heard now because of the furloughs ongoing among West pilots. But those furloughs have nothing to do with the USAPA proposal. They are a result of US Airways drawing down its West operation.
Of course, the fact that US Airways is drawing down more on its West operation undermines the entire premise of the Nicolau Award–that West pilots had far greater career expectations and a more viable carrier. Nicolau came to this erroneous conclusion only because of the shallow record before him on America West’s prospects, including his (now obviously wrong) dismissal of a statement by America West President Scott Kirby that AWA had financial distress that required the merger.
Thanks to the court, however, an erroneous arbitration award, based on an erroneous record on the subject of America West’s future, is set in stone.
Finally, the court’s remedy, that USAPA must implement the Nicolau Award unchanged, shows how wrong the court’s decision is. At most, the plaintiffs in this case have proven only that the specific seniority proposal USAPA put forward violates its DFR. That doesn’t mean a different proposal to change the Nicolau Award couldn’t be put forward consistent with the DFR. In fact, the East MEC pilots proposed a settlement to the West pilots prior to ALPA losing its election using a proposal that essentially adopted the Nicolau Award, but mitigated some its effects on the East pilots. That proposal has not been analyzed under DFR, for example, but now under the judge’s order it cannot be put forward.
This decision ignores precedent governing successor unions under the RLA. It defies logic concerning collective bargaining. That one proposal violates the DFR doesn’t mean that all conceivable proposals do. And seniority rights can be structured in a manner to mitigate adverse effects for one employee group while retaining gains for another. Seniority isn’t a zero sum game and not all seniority proposals are created equal.
Yet, this judge holds that just because the extreme proposal initially put forward by USAPA is unsupported by a legitimate union objective that there is no proposal to modify the Nicolau Award that does support a legitimate union objective (such as mitigating disproportionate ill effects on East pilots without depriving West pilots of gains under the award.)
This decision presents a restraint on the ability of union’s to negotiate. And the judge’s holding that plaintiffs may sue over bargaining proposals, not actual agreements, presents the danger that collective bargaining, particularly during unpopular events such as concessionary negotiations, will be bogged down in lawsuits ginned up by plaintiff’s lawyers who, as the court described the plaintiffs’ lawyers here, misstate law and facts.
The decision reads like this case became a hobby for the judge. An explanation for this seemingly inexplicable award comes from the judge’s harsh criticism of USAPA’s attorneys, the law firm of Seham, Seham, Meltz & Peterson:
USAPA has at various stages misstated law, facts,
and procedural history, with frequent recourse to the
“contradiction or confusion . . . produced by a medley
of judicial phrases severed from their environment.â€
As Brendan Sullivan once said, a lawyer is “not a potted plant.†Skillful advocacy is essential to successful litigation. Poor lawyering, much less lawyering that misstates “law, facts and procedural history†(what’s left to misstate?), hurts clients. That certainly seems to be the case here.
I went to this lawyer. He said I didn't have a case, so I went to another lawyer. George W Bush
Jim,
Chapter 11 is all about breaking contracts. Most people negotiate changes to contracts to avoid cram downs, but the judge has the right to break virtually every contract in bankruptcy. ERISA law specifically limits a distress pension termination to a federal judge. In fact, the pension termination is about the only thing in a pilot contract that IS NOT subject to negotiation. The union is specifically prohibited from negotiating the termination of the pension. They CAN negotiate what happens if the pension is terminated but they can't negotiate it away. In fact, they can't negotiate a change to the pension that would cut back any earned benefit at all.
At Delta, the lump sum option turned out to be our biggest hurdle. Once the lump sum option was negotiated into the pension, it could not be negotiated away, even if BOTH PARTIES agree. Everyone saw the train wreck that was coming, but we could not stop it. ERISA law governs everything to do with an defined benefit plan. There is no way a union could "dump the pension", it is against the law.
Megasnoop
Veteran
If your referring to the Baptiste&Wilder argument I posted, I agree. But since the West is committed to a campaign of FUD aided by their nati-ALPA East friends, I thought the comments worth to post. This is by a law firm that does a lot of RLA/NLRB work. They've done a lot of ALPA work over the years, too.
Good point, but I doubt if the West can raise the cash to file an appeal to the supremes. They said the Ninth would never hear the case. Wrong. They said it would take 3-4 years. Wrong. The Ninth wants this badly. They even moved to expedite it. We'll see how the other rulings go prior to December, but with the Ninth quick interest in this, I think the momentum has shifted East way.
hp_fa
Veteran
- Feb 19, 2004
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Had the Addington appellees opposed the expediting of the case I might have agreed with your theory. However they didn't and therefore I don't see any evidence that momentum has changed or even exists. It is what it is and we will see what happens in December and when a decision is released.
So Snoop, were is the by line.
This reads like someone who knows very little about the case, as there are huge errors in their arguement. Was this written by someone at SSM$P?
First, this paragraph about ALPA merger policy leaves a gaping whole as it fails to mention that the TA specifically states that seniority integrtation will be by ALPA merger policy. USAPA inherits the TA, as stated in other paragraphs , yet they do not inherit contrractual obligation to the TA,( for example-seniority integration will be by ALPA merger policy) what gives?
Then again the author misses the mark when they say USAPA is the successor to ALPA's collective bargaining agreement, and can negotiate any and all terms of that agreement. Does the author understand that USAPA is free to negotiate any and all terms of the agreement, just not in an illegal manner as to cause discriminitory harm to a minority group for illigitimate reasons? Less they will lose a DFR case, and yes that has already happened.
exB717Flyer
Veteran
- Aug 20, 2002
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Ah, yes, Babtiste and Wilder. Our old friend Roland Wilder is well known to the TWA folk. He was the counsel to the TWA MEC during our merger proceedings with AA. We thought he worked for us but apparently he worked for Duane Woerth and we found this out at the worst possible time. He is indeed an experienced labor attorney but like Mr. Seeham he'll say what gets him the most business. Remember when the AAA MEC had him sue the AWA MEC? How'd that ill-advised suit work out?
Megasnoop
Veteran
Wow, looks like this really hit a nerve. As I clearly IDed, it was written by Baptiste and Wilder. Not friends to SSM&P, but long-time RLA/NLRA attorneys. They have dont a lot of ALPA legal work in the past, even for East.
Since no lawyer paid by ALPA ever works for a specific MEC, your right, he did work for ALPA and Woerth. And NO, he was not the attorney for the TWA MEC. He was ALPA's counsel, hired with ALPA's approval and paid for by ALPA. Sorry, former TWA-guy, but that's the way it works.
It ended as moot after ALPA lost the property, a mere 9 months after it was filed. No telling how it would have ended if ALPA won the election. Don't go bringing that up unless your prepared to hear about how your own merger attorney viewed the NIC Award in that suit:
Thus, the “arbitration award†Plaintiffs purportedly seek to “vacate†is in actuality the proposed pilot seniority list developed through ALPA’s Merger policy that ALPA will adopt as its bargaining position to be presented to the Company, but which (like a union bargaining position in any matter) the Company is not required to accept. Plaintiff’s Application to “vacate†an “arbitration award†that does not establish any enforceable seniority rights in a collective bargaining agreement with the Company, but which merely sets out ALPA’s bargaining position to be presented to the company.
There are some people who, if they don't already know, you can't tell 'em. Yogi Berra
This was authored by Roland Wilder of Babtiste and Wilder, P.C.
About Baptiste & Wilder, P.C.
Baptiste & Wilder, P.C. counsels labor organizations representing more employees covered by the Railway Labor Act than any other law firm in the country. It represents rail labor organizations in national collective bargaining and before Presidential Emergency Boards in disputes with the major rail freight carriers, AMTRAK, and various local commuter railroads. It has represented nearly all crafts and classes of airline employees covered by the Act in negotiations, arbitration, litigation, and in merger transactions and bankruptcy proceedings.
William Wilder devotes a considerable portion of his practice to the representation of labor organizations and employees under the RLA. The views expressed here are his alone.
Learn more about Baptiste & Wilder, P.C. at www.bapwild.com
So it was not Seeham. Well then there is an excuse for the lack of knowledge in the case.
Ever consider that perhaps the 9th expedited this for the same reasons Judge Wake did?
I would think that if the 9th had issues with the injunction, they will grant the stay. However, maybe they feel, same as Judge Wake, that a stay is uncalled for, but the decision should be expedited to mitigate further harm.
I did not catch the blog address as the ID. Please excuse me for this most egregious error!
Baptiste & Wilder!?!? Are you kidding? Is this the same firm that wrote a memo to the AAA MEC regarding USAPA's ability to "remedy to effects of the award?"
Let's see, according to the memo:
"He [Wilder] concludes in this memo that “the only sure way for the US Airways
pilots to undo the harm of the Nicolau award and preserve their seniority in
the next merger (not just now) is to obtain a negotiated or litigated resolution
with the West pilots.†"
or
"USAPA cannot undo the one thing that must be done to safeguard the AAA pilots' interests in the future - amend the Nicolau award."
or
"Also, the USAPA attorney's claim the a DFR lawsuit would be an easy win is unsupportable. He cannot know at this point the facts on which such a claim would be based since they have not yet occurred. How can he now reasonably say USAPA would win such a hypothetical lawsuit?"
or
"In short, USAPA makes promises without showing it can actually fulfill those promises. But the fact remains that the only sure way for the US Airways pilots to undo the harm of the Nicolau award and preserve their current seniority in the next merger (not just now) is to obtain a negotiated or litigated resolution with the West pilots."
So, it sounds to me that B&W is looking for a little side work and a bit of sucking-up is being used to grease the wheel.
And I'll bet on Wake over any lawyer's blog entry.
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