US Pilots Labor Thread 3/4-3/11-READ THE FIRST POST

[nycbusdriver]

And I'm not convinced that ALPA would be gone if Doug Parker had simply given the east pilots parity from day one.

That may be true. But if ALPA has simply let the PHL reps alone, told the CLT reps to face the music of a recall attempt, and refrained from the heavy-handed, hard-sell tactics during the balloting period, they would still be the CBA at USAirways.

The entire process was bungled by ALPA, and they effectively removed themselves by alienating all the fence-sitters (and there were a lot!)

 

[nic4us]

A little more time goes by and possible wins in arbitration on issues directly benefiting the West pilots further erodes the West case that they are not being fairly represented.

Who knows?

A320 Driver B)

A win in the out of seniority furlough arbitratition bolsters the West case that the TA specifically defines seniority and how existing seniority will be merged, and the process for that integration.

USAPA, while persuing the arbitration, also asked the company to transfer 6 recalled east pilots furloughed from the West to the east, while allowing pilots cleary senior to them to be furloughed.

Had not thought of this before, but the East argument that the NIC was never used may not be that true. The TA's methodology has been used, when furloughed east pilots were recalled to the West, and placed below active West pilots, regardless of their DOH, as prescribed by the TA. In essence they were placed where their NIC seniority would have entitled them.

 

[Freighterguynow]

If the west prevails it will be the Nicolau. The latitude will come in HOW the list is implemented. If the judge sets a time line for implementation.

ALPA merger policy specifically states you cannot sue to force implementation of the award. It can only come after membership ratification - no time limits either.

Again, Atlas and Polar. Merger announced 2001. Joint contracted ( hoped for ) by early 2010.

 

[700UW]

Here is a case of the former AFMA represented mechanics at Trump Shuttle suing the IAM over their intergration into US Air

Case

more info

Dont know if it is similar but could be good reading.

 

[Tiger 1050]

ALPA merger policy specifically states you cannot sue to force implementation of the award.

Can you post a quote from ALPA merger policy on that point here?

 

[Tiger 1050]

Tailspin

The news of Judge Wake’s Order scheduling an April 28th trial date combined with the granting of the plantiff’s class certification request sent the law offices of Seham Seham Meltz & Petersen into a tailspin Tuesday night. Having proceeded on the assumption that the trial was not going to start until late summer, Mr. Seham was completely unprepared for this schedule acceleration. He quickly launched into crises management mode and determined that there was only one course of action for his guilty client.

DELAY! DELAY! DELAY!

We learned that Mr. Seham is going to file an appeal with the Ninth Circuit challenging Judge Wake’s class certification ruling. He also plans to file a motion seeking a delay until the System Board of Adjustment rules on pending Transition Agreement violations.

Apparently Mr. Seham doesn’t understand the meaning of the verb bifurcate. We know he can cite case law faster than the processing power of the Lexis Nexis search engine, but apparently cracking a dictionary is too great a burden.

Judge Wake separated the questions before the court as they are not intertwined. The fact that management violated the Transition Agreement and furloughed out of seniority order is completely irrelevant to USAPA’s DFR regarding the Nicolau Award.

Further, USAPA’s update on this matter hastily issued Wednesday night contained a Freudian slip that cannot go without comment.

“USAPA currently intends to make a motion to requesting that any jury trial be postponed until the plaintiff’s grievance against the Company…â€

Last time we checked, USAPA is the legal bargaining agent for all US Airways pilots and has the fiduciary responsibility to employ the System Board to resolve contract disputes with management. Mr. Seham even argued this point before Judge Wake last October. Individual pilots cannot file Transition Agreement disputes, only the Association. The grievance before the system board disputing the methodology of furlough by US Airways management is a DEFENSE grievance.

Referring to the dispute as a “plaintiff’s grievance†succinctly illustrates USAPA’s disingenuous approach to representing west pilot issues. The Transition Agreement dispute was filed as a result of court intervention, not USAPA’s aspiration of fair representation.

The question before the jury next month will be very simple: Did USAPA breach its duty of fair representation by disregarding the inherited Nicolau Award and using the tyranny of the majority to disadvantage the minority? This will not be a trial about the fairness of the Award or the refusal of the west pilots to embrace the constitution of the new union calling for the destruction of their careers.

The name of the union may have changed, the obligations have not.

 

[souperfly]

Just a recap from my conversations yesterday. We are all aware that one can choose to not be a member of a union. I think we all can agree that germaine fees are the responsibility of every covered employee, member or not. Where some of the wests more "upity" pilots went into the ditch was by openly attacking with malice and intent, the day to day operation of the union, and they are in court for that activity. Now, yes, a union is obligated to 'represent" all covered employees, "members" or not. USAPA does that, every day. Some of you guys are arguing semantics now. "Fairly" represent?..yes, every day. The case you make, as I understand it, is that the CBL's regarding DOH with CR's of the union isn't fair to the west...and further, that no west pilots were consulted in the formation of those CBL's. To the latter, I'd say that since the entire "America West " pilots side went into self-imposed "lockdown" over the entire USAPA issue, they were unavailable for consultation, they didn't join as members to avail their "super-sized domicile numbers to cause a referendum and seek change to the CBL's that concerned them. While the jury will render their decision in the matter, it cannot be overstated that west has made this entirely about the Nic...so indeed, the Nic is at the core of your lawsuit, cleverly disguised in a cloak of DFR issues.

The land-grab continues. Carry on.

Thanks for finally saying it Tiger:

The question before the jury next month will be very simple: Did USAPA breach its duty of fair representation by disregarding the inherited Nicolau Award ...

This, of course, is contrary to what so many west pilots have been saying for the last 3 months....that the Nic was not on trial here...

At the heart of this matter, it also illuminates the bigger question: does USAPA have the authority to negotiate changes/modifications to any of it's 3 contracts it oversees with the company... West, East, and TA. And, of course, negotiate a new joint contract which will end the first 3. I'd argue that USAPA is dealing with the company over the two contracts and the TA every day, as the company wiggles around language nuances in their draconian ways, and stall tactics at the table. The section regarding seniority is just another piece of the larger pie that USAPA can and will "negotiate" into the new joint contract. I'm sure they'll give the Nic all the consideration it deserves going forward, regardless of the outcome.

 

[cleardirect]

Perhaps, instead of relying on a web site, you should confront your representative about what is going on. It seems the election has been over for some 36 hours when the issue in question was published, plenty of time for even the laziest of reps to set up. I had access. He had access. He chose not to publish. Your beef is with him, or the person maintaining his web site - his wife?

There is a chain of command, now that you have a rep. You may wish to use it, first.

Also, joining USAPA would allow you to satisfy your cravings on a personal level and certainly would lend some credibility to your postings.

Well that might be a valid statement under normal circumstances. But as you know my rep has been censored. He is still waiting for one of his updates from three weeks ago to be published. My reps update may be sitting on someone’s desk right now. Waiting for the political police and politburo to review and sanitize his message.

Where were the other domicile updates? Are they also lazy? Did all of the east reps head underground to avoid the backlash from your own pilots.

It seems that the mother ship has returned and is limiting information. I and the rest of the west had this information on the 3rd. If you notice I posted the document. usapa did not even bother to do that. So that does not worry me. The fact that it took usapa so long to get it to the east pilots. That is what concerns me.

I see a repeating of the arbitration. The west has the information in it’s raw form. Directly from the court. You east guys get some sanitized spun version of what the central committee wants you to read.

What happen to this open and honest union that usapa sold to the east? I ask the question again. If usapa thinks that they are on the right side of this case. That what they are doing is a core union value and righteous. Why all of the delays? Prove us wrong and move towards a contract.

 

[hp_fa]

ps HP-FA care to interpret?

First let me clarify what a minute entry is and what it isn't. A minute entry can be thought of as a quick outline of what the court and various parties discussed in conference. The minute entry that was provided shows that the conference that was the subject of this minute entry took one hour and thirteen minutes, so there obviously was a lot of discussion that took place regarding items discussed within the minute entry.

OK, from what I see the issue of the class certification has been decided and Judge Wake will be putting that decision into a formal written order. Once that is done I believe that USAPA has ten (judicial) days to appeal that Order. However, per the provisions of Rule 23 (f), Fed.R.Civ.P., that appeal does not stay the trial court proceedings unless the trial judge chooses to stay the proceedings. What I don't see mentioned at all in this Minute Entry is anything regarding the scope of the Class, as alluded to in Megasnoop's post #51 in this thread. I'm not saying Mega or USAPA is incorrect in what they say regarding the Class being solely for liability or injunctive relief, but simply that I don't see it in the Minute Entry or anything that I have access to see at present. I will say that what I seem to be reading is that the first phase of the bifurcated trial will be solely on the issues concerning liability and that ** if ** liability is found to be present than the damages issues will be subject to future proceedings after liability is determined.

It certainly appears to me that the Judge fully intends for there to be a trial on April 28th and it does not appear that he is willing to delay this phase of the trial. I suspect that what is driving the Judge to push this matter forward in a speedy manner is that the case was first brought as injunctive relief and even though the Court refused to issue a Temporary Restraining Order at the beginning the Court wants to resolve the issue of whether or not an injunction should be issued.

 

[jetjok1]

Oldie, I totally agree with working within the system in order to change it. However, I am not personally aware of any union contract language quite like what I was seeing be described. Additionally I am not personally aware of another fact pattern quite like this one where after a binding arbitration was decided that the losing side basically decided to ignore the arbitration and cramdown seniority provisions via a new union.

Hp,

yeah, binding arbitration!. Both sides agreed to it. No problem with that. But one minor fact that continually seems to be overlooked/avoided by the West, is that, although it's binding and final, IT CAN'T BE A WINDFALL TO EITHER SIDE. And that's where the crux of the problem lies. It was a windfall to the west. Having said that, there needs to be some common ground on the DOH/LOS argument with restrictions (fences, what-have-you). I just know that it can't be straight NIC nor can it be straight DOH. IMHO it's somewhere in between.

 

[BoeingBoy]

But one minor fact that continually seems to be overlooked/avoided by the West, is that, although it's binding and final, IT CAN'T BE A WINDFALL TO EITHER SIDE.

I think you'll find that nothing in the ALPA merger policy prohibits a windfall (although windfall, like fair, is in the eyes of the beholder). Avoiding windfalls is a goal of the process, but not a required outcome.

There is only one requirement governing the outcome - the order of pilots on the two separate lists can't be changed on the combined list. Everything else, including the stated goals, is left to the arbitrator to balance.

Jim

 

[nic4us]

The case you make, as I understand it, is that the CBL's regarding DOH with CR's of the union isn't fair to the west...and further, that no west pilots were consulted in the formation of those CBL's.

That is not the case the West brings before the court.

The case we are making, as I believe it to be, that USAPA has violated its DFR by unilaterally rearranging the system seniority, in direct opposition to its contractual obligations, and favoring East over West.

 

[hp_fa]

yeah, binding arbitration!. Both sides agreed to it. No problem with that. But one minor fact that continually seems to be overlooked/avoided by the West, is that, although it's binding and final, IT CAN'T BE A WINDFALL TO EITHER SIDE. And that's where the crux of the problem lies. It was a windfall to the west. Having said that, there needs to be some common ground on the DOH/LOS argument with restrictions (fences, what-have-you). I just know that it can't be straight NIC nor can it be straight DOH. IMHO it's somewhere in between.

Actually, I will differ with you on where I believe the crux of the problem resides. Any time any party to any contested matter submits to any form of adjudication (including binding arbitration) they are no longer in control of what may result from that adjudication. That is precisely why parties to any action are highly encouraged to attempt to resolve their issues prior to any form of binding resolution, specifically because they still retain some control over the result.

I was involved in many various settlement issues over the years, some fairly trivial and some far more important. The general axiom holds true, that a really good negotiated resolution leaves no party really happy but also does not leave them really unhappy. In this case that is why it was, in my opinion, a fundamental error on the part of East to enter into a negotiated settlement with West back before the Nicolau arbitration took place. Had they been willing to discuss anything other than full DOH/LOS than it is, in my opinion, likely that a negotiated result including fences, A-330 Transatlantic flying and slotting could have been reached. Instead they chose not to do so and accepted full and binding arbitration of all outstanding issues and then suffered a significant setback concerning what they had hoped to accomplish. I will note that even the Nicolau "win" for the West did keep them away from (if memory serves me correctly) the first 517 seniority slots and Transatlantic widebody flying.

Again, my point is whenever anyone anywhere submits a dispute to any third party for any full and final determination of facts and resolution that once the contested matters are submitted to the person or persons deciding the matter, control over their disputed issues is now gone.

 

[nic4us]

Hp,

yeah, binding arbitration!. Both sides agreed to it. No problem with that. But one minor fact that continually seems to be overlooked/avoided by the West, is that, although it's binding and final, IT CAN'T BE A WINDFALL TO EITHER SIDE. And that's where the crux of the problem lies. It was a windfall to the west. Having said that, there needs to be some common ground on the DOH/LOS argument with restrictions (fences, what-have-you). I just know that it can't be straight NIC nor can it be straight DOH. IMHO it's somewhere in between.

You do understand that your claim that the NIC is a windfall to the West is merely opinion. An opinion not shared by the West or the arbitration panel.

That is why the West overlooks your claim of windfall, we all, everyone of us West pilots, lost seniority. We do not see how moving backwards equates to a windfall.

Here is a West opinion, you do not have to agree. The NIC favored the east far too greatly and did not grant furlough protection for the bottom of our list. Now we have 103 soon to be 175 furloughs.

Has the east exhausted its new hire list yet? How about the recalls?

 

[Tiger 1050]

Just a recap from my conversations yesterday. We are all aware that one can choose to not be a member of a union. I think we all can agree that germaine fees are the responsibility of every covered employee, member or not. Where some of the wests more "upity" pilots went into the ditch was by openly attacking with malice and intent, the day to day operation of the union, and they are in court for that activity. Now, yes, a union is obligated to 'represent" all covered employees, "members" or not. USAPA does that, every day. Some of you guys are arguing semantics now. "Fairly" represent?..yes, every day. The case you make, as I understand it, is that the CBL's regarding DOH with CR's of the union isn't fair to the west...and further, that no west pilots were consulted in the formation of those CBL's. To the latter, I'd say that since the entire "America West " pilots side went into self-imposed "lockdown" over the entire USAPA issue, they were unavailable for consultation, they didn't join as members to avail their "super-sized domicile numbers to cause a referendum and seek change to the CBL's that concerned them. While the jury will render their decision in the matter, it cannot be overstated that west has made this entirely about the Nic...so indeed, the Nic is at the core of your lawsuit, cleverly disguised in a cloak of DFR issues.

The land-grab continues. Carry on.

Thanks for finally saying it Tiger:

The question before the jury next month will be very simple: Did USAPA breach its duty of fair representation by disregarding the inherited Nicolau Award ...

This, of course, is contrary to what so many west pilots have been saying for the last 3 months....that the Nic was not on trial here...

At the heart of this matter, it also illuminates the bigger question: does USAPA have the authority to negotiate changes/modifications to any of it's 3 contracts it oversees with the company... West, East, and TA. And, of course, negotiate a new joint contract which will end the first 3. I'd argue that USAPA is dealing with the company over the two contracts and the TA every day, as the company wiggles around language nuances in their draconian ways, and stall tactics at the table. The section regarding seniority is just another piece of the larger pie that USAPA can and will "negotiate" into the new joint contract. I'm sure they'll give the Nic all the consideration it deserves going forward, regardless of the outcome.

Souper,

Maybe this will clarify things a little. This is a quote taken from Judge Wake regarding the point you bring to light here.


"USAPA vehemently argues that it had every right to renounce its express obligation to the ALPA Merger Policy and the arbitrated seniority award, to which it is bound by the 2004 CBA and the Transition Agreement. It says it may recant a prior bargaining position and adopt a seniority policy based upon date of hire. Seniority rights “are creations of the collective bargaining agreement, and so may be revised or abrogated by later negotiated changes in this agreement.â€￾ Hass v. Darigold Dairy Prods. Co., 751 F.2d 1096, 1099 (9th Cir.1985). As a general proposition, the seniority scheme under the Nicolau Award is not the only permissible way to resolve post-merger seniority issues within unions. For instance, there is nothing per se unacceptable about a seniority agreement based on the date of hire. Laturner, 501 F.2d at 599; Rakestraw v. United Airlines, Inc., 981 F.2d 1524, 1533 (7th Cir.1992). USAPA refers repeatedly to these principles at their highest level of generality. The problem is, though the benefit of the Nicolau Award is surely what motivates the West Pilots, their legal objection to USAPA's date-of-hire seniority policy is not directly substantive, but rather procedural. The alleged breach of the duty stems from the bad faith manner of USAPA's determined attempts to evade the Award. Irrespective of whether seniority rights “vestâ€￾ in a proprietary sense, a union may not arbitrarily abridge those rights after a merger solely for the sake of political expediency. Barton Brands, Ltd. v. NLRB, 529 F.2d 793, 800 (7th Cir.1976); see also Rakestraw, 981 F.2d at 1531."