US Pilots Labor Thread 12/30-1/5

[RowUnderDCA]

Does the duty of fair representation require a CBA to engage in an inescapably self-defeating or impossible task? Or is it presumed that there is ALWAYS an ability to fairly represent irrconcilable parties? If presented with an impossible situation, is a vote ever a solution?

I'd suppose not, since a vote would clearly simply victimize the minority to the majority.

But how else to resolve impossibly opposed positions, under the duty of fair representation?

I suppose no party has ever negotiated a contract with Nic and presented it to a vote to the combined membership, as I believe is required. But, seriously, isn't it at least a reasonable argument that the cert vote for USAPA could be a stand-in for such a vote. Should any CBA for all US Pilots negotiate away certain benefits for some, and gain some for others, while incorporating Nic and expect it to pass?

What would a negotiated agreement look like with Nic that would pass a vote?

 

[nycbusdriver]

Assuming that Nic reworked the list after a victory by the MDA folks (he retains jurisdiction, after all), ~175 jobs would be added to the list. They would be the 170 captain jobs, slotted in either ahead of all the F/O jobs or ahead of the Group II (737 and A320) jobs depending on whether Nic used pay rate or seat to slot those 170 jobs on the list. The 170 F/O jobs would come behind all the west pilots just as the widebody jobs went ahead of all west pilots - West didn't fly anything as small as the 170 just like they didn't fly widebodies.

Since Nic slotted jobs then put names in those jobs, the result for pilots would be the top ~175 that were shown as furloughed being mixed in toward the bottom of the 737 and A320 F/O's part of the list and another ~175 being listed as active but behind everyone shown as active on the current Nic list (just changing status from furloughed to active).

Jim

Thank you. COMMENT REMOVED BY MODERATOR

Case closed.

 

[hp_fa]

Let me toss this hypothetical question out to the group. Just a hypothetical for discussion.....so no bashing, flaming, ranting etc... that most of the children have been exchanging lately ok? Just an adult, civilized debate on this one question :

What would happen if for some crazy, remote reason a Federal court declares the Nic award INVALID ??? As in technically flawed and thus unusable by any CBA ???

I'm not sure what my answer would be to you and I'll try to explain why.

The action currently filed in the federal court in Phoenix is about USAPA allegedly failing in various duties owed to West pilots when USAPA became the bargaining agent. West alleges, in part, that as part of the proof of the actions of USAPA giving rise to their Complaint is the way USAPA has dealt with the Nicolau award. That award, in one way or another, will be evidence that the Court will be aware of when it considers the case.

As a practical matter courts do not usually overturn arbitration awards. The public policy behind arbitration is to provide a less costly and less formal means for dealing with issues that the parties agree to be arbitrated. However because an arbitration may be intended to be a complete and final determination of the issue(s) presented for determination, taking an arbitration award to a judicial review is frowned upon because then the arbitration would not be a final determination, but rather simply a procedural hurdle before going to court. Additionally, taking the process through arbitration and then litigation has the net effect of raising the costs associated with the matter(s) to be arbitrated rather than reduce the costs of that process.

It is never safe to say with any degree of certainty what will happen when a dispute is put before a judge. However I believe it unlikely that the Nicolau award will be overturned in this case and I have serious doubts that the Nicolau award will ever be judicially overturned.

All that said I still have not answered your question, so let me do so. ** IF ** a court were to overturn or abolish the Nicolau Award it would likely revert back to the parties to reach an agreement regarding the issues with which the arbitration had (supposedly) resolved. If that scenario were to occur in this case that might allow USAPA to force a DOH or DOS seniority list. However West has also apparently alleged that the structure of USAPA has provided West with no input into decisions of USAPA and that scenario is part of the argument to the Court that USAPA fails West pilots in its duty to represent them fairly and not harm issues that were resolved prior to USAPA becoming the bargaining agent.

I'm not sure if that helps, but there you go.

 

[nycbusdriver]

As a practical matter courts do not usually overturn arbitration awards. The public policy behind arbitration is to provide a less costly and less formal means for dealing with issues that the parties agree to be arbitrated. However because an arbitration may be intended to be a complete and final determination of the issue(s) presented for determination, taking an arbitration award to a judicial review is frowned upon because then the arbitration would not be a final determination, but rather simply a procedural hurdle before going to court. Additionally, taking the process through arbitration and then litigation has the net effect of raising the costs associated with the matter(s) to be arbitrated rather than reduce the costs of that process.

I think you're incorrectly using as an example cases where the parties of cases, which would normally end up in court, agreeing to the less costly and quicker arbitration process. In the case of labor group integration, this would normally never be something seen in a courtroom. In this case arbitration was an internal corporate process. Maybe the results will be the same, but I think your explanation is a bit off base.

However West has also apparently alleged that the structure of USAPA has provided West with no input into decisions of USAPA and that scenario is part of the argument to the Court that USAPA fails West pilots in its duty to represent them fairly and not harm issues that were resolved prior to USAPA becoming the bargaining agent.

I'm not sure if that helps, but there you go.

Your statement about USAPA being structured to keep the west out of the decision process is totally false. The structure does now and always has provided the means for west input. The C&BL has always expected west representation. The fact that the west has refused the offer is not going to go unnoticed in the federal court. Once this fact became obvious, the west groups (AOL and AWAPPA) quietly began advising their groups to join and pay dues. That will also not go unnoticed by the court. If no one from the west wants to step up to represent their pilots, it's not something USAPA can control. You can't refuse to be represented then expect the court to rule in your favor on the issue of lack of representation.

 

[Metroyet]

Does the duty of fair representation require a CBA to engage in an inescapably self-defeating or impossible task? Or is it presumed that there is ALWAYS an ability to fairly represent irrconcilable parties? If presented with an impossible situation, is a vote ever a solution?

I'd suppose not, since a vote would clearly simply victimize the minority to the majority.

But how else to resolve impossibly opposed positions, under the duty of fair representation?

I suppose no party has ever negotiated a contract with Nic and presented it to a vote to the combined membership, as I believe is required. But, seriously, isn't it at least a reasonable argument that the cert vote for USAPA could be a stand-in for such a vote. Should any CBA for all US Pilots negotiate away certain benefits for some, and gain some for others, while incorporating Nic and expect it to pass?

What would a negotiated agreement look like with Nic that would pass a vote?

The Judge will answer all of those questions at the conclusion of the upcoming trial. I believe he's the only one that can do anything definitive at this point.

 

[EyeInTheSky]

There wouldn't be a reworking of the Nic list. An MDA win would throw fraud into the equation and invalidate the list and the ALPA process as it would be shown intentional perjurious evidence and testimony was provided in an attempt by ALPA to protect its interest in the DFR case it was defending against the MDA pilots.

Bingo! The West merger committee through Fruend submitted the uncertified fake list to Nicolau which
changed the MDA pilots from working E170 Captains to furloughed along with other changes to the certified East list. There is no dispute that the West submitted the uncertified fake list. The West also claimed AWA was a viable growing airline when the truth was it was near bankruptcy based in markets about to crash. The West pilots cheated and Nicolau used the fraudulent data to build his list. USAPA will of course comply with any court orders but has multiple options as the CBA to reach a fair and equitable seniority integration. Using the fraudulent Nicolau list or any kind of scheme based on historic relative positions never has been nor ever will be acceptable to East pilots.

The seniority solution will respect longevity and attrition and be fair and equitable to both East and West pilots.

Later,

Eye

 

[hp_fa]

Your statement about USAPA being structured to keep the west out of the decision process is totally false. The structure does now and always has provided the means for west input. The C&BL has always expected west representation.

I may be incorrect, but I think the issue has to do with the meaningfulness of USAPA membership to the West folks. I seem to recall some discussion regarding the original application form to members having written provisos as part of the application and, again from what I have read on this site, that those provisos were unacceptable to West members. Since I am not, not ever have been, an applicant to USAPA I cannot provide here the exact language in question. Others may be able to do so.

 

[N924PS]

Bingo! The West merger committee through Fruend submitted the uncertified fake list to Nicolau which
changed the MDA pilots from working E170 Captains to furloughed along with other changes to the certified East list. There is no dispute that the West submitted the uncertified fake list. The West also claimed AWA was a viable growing airline when the truth was it was near bankruptcy based in markets about to crash. The West pilots cheated and Nicolau used the fraudulent data to build his list. USAPA will of course comply with any court orders but has multiple options as the CBA to reach a fair and equitable seniority integration. Using the fraudulent Nicolau list or any kind of scheme based on historic relative positions never has been nor ever will be acceptable to East pilots.

The seniority solution will respect longevity and attrition and be fair and equitable to both East and West pilots.

Later,

Eye

The lists used in the Nicolau process were accepted by both sides. How can you say the West cheated if the East merger committee never refuted the submitted list? The data may have been inaccurate (still to be determined in the MDA lawsuit) but was never fraudulent.

One can only hope that USAPA will comply with any court orders, but if binding arbitration was not acceptable, who knows?

 

[Tiger 1050]

Your statement about USAPA being structured to keep the west out of the decision process is totally false. The structure does now and always has provided the means for west input. The C&BL has always expected west representation. The fact that the west has refused the offer is not going to go unnoticed in the federal court. Once this fact became obvious, the west groups (AOL and AWAPPA) quietly began advising their groups to join and pay dues. That will also not go unnoticed by the court. If no one from the west wants to step up to represent their pilots, it's not something USAPA can control. You can't refuse to be represented then expect the court to rule in your favor on the issue of lack of representation.

The question I'd imagine from the court would be something akin to why would we not join. It is a fair question and the answer will be easily illustrated with all the evidence found in discovery regarding USAPA's main motivation to remove ALPA. The east out numbers us 2-1. When an entity campaigns with promises (whether real or insinuated) with no regard to a minority group it is against RLA law. So while Nic brought us to this point the litigation lies in the fact that USAPA, from the start, refused to acknowledge the desires of the west pilots it would eventually represent all while playing to the majority. One does not have to go far to find examples of USAPA's desire. YouTube will provide you with a video example of Seham himself stating that the Nic "goes away" when USAPA is voted in. So no surprise you guys voted the way you did. In my mind you got duped and I do not hold a personal grudge. We all want to what's best for our respective pilot groups... But if one looks at the facts it's pretty easy to understand why we did not join with hopes of changing the heading to a more favorable direction for the west. However we may take some heat for it. We'll have to see I guess.

Here is some case law to consider...

The D.C. Circuit has held that a union breaches its duty of fair representation when it “arbitrarily adopt and announce a bargaining policy on seniority merger motivated only by a desire to win the votes of a majority of the employees.†Truck Drivers & Helpers, Local Union 568 v. NLRB, 379 F.2d 137, 145 (D.C. Cir. 1967). This is so because to adopt such a policy under the circumstances “would . . . constitute a default by [the union] in its obligation to represent fairly all the employees in the unit for which it becomes the exclusive bargaining representative.†Id. Along the same lines, a union may not delegate its decision-making function to a referendum of employees “with the understanding that their actions will be motivated solely by their own personal considerations†because such a referendum violates the union’s duty to consider the views of all those it represents. Branch 6000, Nat’l Ass’n of Letter Carriers v. NLRB, 595 F.2d 808, 812 (D.C. Cir. 1979).

Hey Snoop! Are you gonna note my anger?

 

[nic4us]

Bingo! The West merger committee through Fruend submitted the uncertified fake list to Nicolau which
changed the MDA pilots from working E170 Captains to furloughed along with other changes to the certified East list. There is no dispute that the West submitted the uncertified fake list. The West also claimed AWA was a viable growing airline when the truth was it was near bankruptcy based in markets about to crash. The West pilots cheated and Nicolau used the fraudulent data to build his list. USAPA will of course comply with any court orders but has multiple options as the CBA to reach a fair and equitable seniority integration. Using the fraudulent Nicolau list or any kind of scheme based on historic relative positions never has been nor ever will be acceptable to East pilots.

The seniority solution will respect longevity and attrition and be fair and equitable to both East and West pilots.

Later,

Eye

Okay, I'll bite,

In reality the West merger comitee put forth a better arguement of what was fair, and had the decision more closely resemble their ideas than the East desire for a windfall at the West expense.

The MDA pilots were furloughed and will loose their lawsuit. Unfortunately they just lost their longevity pay at USAirways payroll because they were furloughed. They were accounted for in the Nicolau decision, placed accordingly, and are simply on the list of east pilots out of touch with reality and trying to better themselves on the backs of their fellow pilots.

Further the West merger comittee was able to claim America West was a viable growing airline because that also was fact. Fact evidenced by America West ability to Buy, purchase, aquire, the bankrupt, failing, about to leave airline existance USAirways.

I have no doubt USAPA will comply with court orders, and I care not what is acceptable to those trying to steal from me. The seniority solution has already been determined. It respects longevity and attrition and is fair and equitable to both east and West pilots. Just because you do not like it, does not change the truth. Just because there are 2800 of you, does not change the truth. Truth is USAPA is trying to steal from the West, Was formed to overturn the Nic decision, and steal from the West. USAPA announced its intentions and followed through, it has harmed me and every West pilot and will now see the consequences the West warned it (and its little lawyer with a Napoleon complex) of if they steal from the West.

Later,

Nic4us

 

[Hawkhunter]

Fraud in supplying an "incorrect" East list, I presume. Corrected by redoing the combined list using a "correct" East list with the MDA folks shown as active. The ALPA merger process itself has already been tested by lawsuits and found satisfactory, so I don't think the process contained in the ALPA C&BL's would be found fraudulent.

So we're back to what I described.

Jim

So what you say is fact? You must be really really bored?

 

[BoeingBoy]

So what you say is fact?

Nope, only opinion - worth no more or less than any other except the judge (and quite possibly HP-FA's).

You must be really really bored?

No more so than all the others that post repeatedly on this same topic. Glad you're concerned about my well being, though.

Jim

 

[Piedmont1984]

Okay, I'll bite,

In reality the West merger comitee put forth a better arguement of what was fair, and had the decision more closely resemble their ideas than the East desire for a windfall at the West expense.



I have no doubt USAPA will comply with court orders, and I care not what is acceptable to those trying to steal from me. The seniority solution has already been determined. It respects longevity and attrition and is fair and equitable to both east and West pilots. Just because you do not like it, does not change the truth. Just because there are 2800 of you, does not change the truth. Truth is USAPA is trying to steal from the West, Was formed to overturn the Nic decision, and steal from the West. USAPA announced its intentions and followed through, it has harmed me and every West pilot and will now see the consequences the West warned it (and its little lawyer with a Napoleon complex) of if they steal from the West.

Later,

Nic4us

If what is being taken from you is also something which you brought to the table from the beginning, then I would agree that theft has taken place. But a DOH list with a ten year fence, which will end up being a fifteen year fence when all is said and done; where you keep exactly what you brought with you to the merger - that is not stealing.

OTOH, if one of you with two years with the company can jump ahead of someone with two decades with the company, and you pretend it's o.k. because Nicolau said so - then that is stealing.

Unless of course, what is being stolen is your windfall. In which case, lock me up judge.

And that's the truth.

 

[nic4us]

If what is being taken from you is also something which you brought to the table from the beginning, then I would agree that theft has taken place. But a DOH list with a ten year fence, which will end up being a fifteen year fence when all is said and done; where you keep exactly what you brought with you to the merger - that is not stealing.

OTOH, if one of you with two years with the company can jump ahead of someone with two decades with the company, and you pretend it's o.k. because Nicolau said so - then that is stealing.

Unless of course, what is being stolen is your windfall. In which case, lock me up judge.

And that's the truth.

I suppose that Dave Odell and 95 others have stolen the furlough that the currently employed east pilots brought to the table. Six of which were allowed to transfer West to east and avoid furlough at others expense, at USAPA's request, in violation of the TA.

If I am not mistaken USAPA's proposed DOH list is still furlough in seniority order, regardless of fences.

What I brought to the table is gone as a result of the merger, no fence can protect what is no longer available.

 

[Metroyet]

Bingo! The West merger committee through Fruend submitted the uncertified fake list to Nicolau which
changed the MDA pilots from working E170 Captains to furloughed along with other changes to the certified East list. There is no dispute that the West submitted the uncertified fake list. The West also claimed AWA was a viable growing airline when the truth was it was near bankruptcy based in markets about to crash. The West pilots cheated and Nicolau used the fraudulent data to build his list.

Eye

Geez!!! What a conspiracy!! Sure, it had ABSOLUTELY NOTHING TO DO WITH THE EAST. SOMEONE ELSE IS ALWAYS TO BLAME!!!!! Why didn't I see this?

I bet there was even a second List Delivery method on the grassy knoll!!!