US Pilots Labor Thread 6/2-6/9 STAY ON TOPIC

[cleardirect]

The agents just want the final binding arbitration award
http://caselaw.lp.findlaw.com/data2/circs/4th/031378p.pdf
Here is a DFR seniority case that some Customer services agents at USAirways had against there union

The CWA found itself in a difficult position. However the union
read Article 12, Section C, it was bound to ignore the wishes of some
set of workers, be it senior employees in the ten closed locations or
more junior employees in numerous other locations. But the fact that
its decision disappointed some of its workers does not mean in itself
that the CWA failed to fairly represent any of its members. The duty
of fair representation prohibits only "invidious" discrimination, such
as discrimination based on constitutionally protected categories like
race or gender, or discrimination that arises from animus or prejudice.
O’Neill, 499 U.S. at 81; see also Considine v. Newspaper Agency
Corp., 43 F.3d 1349, 1359-60 (10th Cir. 1994).

I can not open the file. So was the CWA found liable of DFR or not?

 

[john john]

I guess the one with the DFR CONVICTION ATTACHED TO IT is an apple, and all the others,

(the ones where the Bargaining Agent wasn't convicted of violating it's duty to fairly represent

said members) are oranges.

Hope that helps you differentiate reality from fantasy.

Is THE DFR case and the arbitration award one in the same
IS THE CONTRACT AND A ARBITRATION AWARD ONE IN THE SAME

 

[john john]

I can not open the file. So was the CWA found liable of DFR ?

NOPE

 

[cleardirect]

NOPE

Irrelevant then.

 

[700UW]

The differance is the airbus arbitration was not new language in the CBA. The arbitration enforced exsisting scope langauge in the CBA.

When Judge Mitchell abrogated the IAM M&R CBA, there was no CBA anymore.

The company had us vote on a final offer which said they may outsource heavy mtc.

You keep confusing the issue, one is a union vs company under the auspices of the CBA and the RLA, the pilot issue is internal union matters, not the company violating the CBA and have it fall under the RLA.

 

[john john]

Irrelevant then.

Why

 

[john john]

the pilot issue is internal union matters, not the company violating the CBA and have it fall under the RLA.

Bingo lets have a membership union contract vote

 

[hp_fa]

John John,

Jeffreys is a wholly differing fact pattern that does not arise out of a merger nor is it alleged anywhere that the union failed in any way to attempt to reconcile the issues between the members. Additionally, Jefferys did not survive summary judgment whereas Addington survived all pretrial phases and has had a jury finding that a DFR violation occurred.

There is nothing to stop USAPA from arguing to the Ninth Circuit that the trial court erred in not granting the Motion to Dismiss early in the case or for them to have been precluded from filing a motion for summary judgment. However, their page count in any appeal is strictly limited so they need to pick their best few arguments and base their appeal accordingly.

The published Opinion in Jeffreys could conceivably be used for any potential Writ of Certiorari (the way a case is petitioned to the Supreme Court for review) claiming that there is a dispute between the various Circuits concerning what factors must be present for a successful claim concerning a breach of the Duty of Fair Representation. However, that is far in the offing. The Ninth Circuit will be holding any proceedings they may hold using as primary authority constitutional law, statutory law, Supreme Court holdings and Ninth Circuit holdings. They may look to other Circuits for guidance, but holdings in other Circuits are not binding on any other Circuit.

 

[700UW]

Its not a CBA item, it was/is internal union matters, the seniority was negotiated between US/ALPA and HP/ALPA, not the company.

It utilized exsisting union policy that at one time or another the members agreed too.

 

[john john]

John John,

Jeffreys that the union failed in any way to attempt to reconcile the issues between the members.

Are you sure about that

 

[john john]

It utilized exsisting union policy that at one time or another the members agreed too.

You hit the nail on the head again

Past practice of all mergers of both airlines regarding seniority
DOH

 

[Megasnoop]

Snoop, If a dispute under the RLA is found to be a major dispute it goes to the federal courts, and the major vs minor dispute is for CBA violations and changing of the status quo.

Seems to me your mixing up a contractual dispute and inner union politics, the RLA doesnt cover union politics.

When US outsourced the airbus overhaul, the IAM sued in Federal Court, Judge Robert Cindrich ruled it a major dispute and issued a TRO to stop the work.

On appeal the company got it remanded to arbitration and Arbiter Bloch ruled in the IAM's favor.

Seems to me your grasping at straws to prove your right and a jury of your peers all ready found usapa in violation of DFR.

The furloughs are a minor dispute to be arbitrated under the TA arb process. Not east, west or the company quesiotned that. The problem the West has now is that this grievance will come back to bite them. Harpers damage control is too late.

Obviously the court agreed the IAM thing was a minor dispute, so Im not following your point. Thats exactly what Wake did when he gave jurisdiction over Counts 1 (Breach of CBA: furlough out of order) and 2 (Breach of CBA: Failure to negotiate in good faith) to Bloch for arbitration. No appeals court is going to buy the concept that Bad Faith means not negotiating for Nicolau. Thats not the question. Bad faith exists only between the bargaining agent and the company. Thats what Rakestraw was all about.

AOL has back-peddled on #2 complaint because LCC is no longer a defendant and there are numerous statements of fact, testimony by AOL counsel and by written stipulated facts that USAPA was negotiating in good faith, just not for the Nicolau award.

Regarding grasping at straws, what I write wont ever make it to the court. There just my thoughts on the problems AOL has with appeal. The jury ruled based on their instructions and the evidence that was allowed in. The 9th Circuit isnt going to retry the facts. Theyll only look at whether Wake erred with his instructions and with what he would let into evidence.

Lets face it, 700, we all know this will be decided at the 9th Circuit, not on this chat. All this endless bickering and gotchas is each sides attempt to hurt the morale of the other. Until the posturing abates on both sides, we keep this jail-house lawyer debate going and the company keeps screwing us.

"Their attorneys" refer to the Addington attorneys. The liability would be a cancellation fee.

This is what snoop said.
(Plaintiffs will pay for the cancellation, not the Co. or USAPA) No doubt they were ordered to by Harper. But a no-show may be as bad as a loss.

That quote was from the presidents message. Cleary stated that both the plaintiffs and the company was liable for the cancellation fee. Snoop stated that only the plaintiffs were liable. One of them is incorrect.

Not following you, Clear. But what difference does it make? Company paying? Great. Whether the update or me is correct is immaterial. Point is, USAPAs not on the hook for this. Is that all you got? Snoop

 

[hp_fa]

Until the posturing abates on both sides, we keep this jail-house lawyer debate going and the company keeps screwing us.

So is USAPA going to stop posturing, accept Nicolau, and then focus its attention on the Company?

 

[hp_fa]

Are you sure about that

From Jeffreys:

"In endorsing the Grievance, the union imposed regrettable hardships on the plaintiffs, especially since USAir insisted that bids be processed without the opportunity for rebidding. But whether or not the CWA’s decision to adopt the Grievance’s interpretation was the wisest or fairest one, it was clearly not arbitrary. Rather, the CWA made an "informed, reasoned judgment regarding the merits of the [Grievance] in light of the language contained in the collective bargaining agreement." Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d 120, 127 (2nd Cir. 1998). Seniority is important to the lives and wellbeing of workers and to the entire fabric of labor-management relations. Yet stability is likewise meaningful to employees and their families. In the face of these competing concerns, the CWA construed Article 12, Section C to permit only one-for-one rather than sequential bumping, in an attempt to respect employees’ seniority while also lessening the furloughs’ overall disruptiveness.

In short, the CWA, which bears the primary responsibility for construing the collective bargaining agreement, weighed the values of seniority and stability, and reached a considered judgment to which we must be "highly deferential." O’Neill, 499 U.S. at 78; see also Marquez, 525 U.S. at 45-46; Garrison v. Cassens Transport Co., 334 F.3d 528, 538-39 (6th Cir. 2003); Ooley v. Schwitzer Div., Household Mfg. Inc., 961 F.2d 1293, 1302 (7th Cir. 1992). The CWA was elected by USAir’s passenger service employees to represent their interests, and when the employees’ interests conflicted, the CWA was permitted "a wide range of reasonableness" within which to strike a balance. O’Neill, 499 U.S. at 78. We cannot say that it struck an arbitrary or irrational one."

Also,

"The CWA found itself in a difficult position. However the union read Article 12, Section C, it was bound to ignore the wishes of some set of workers, be it senior employees in the ten closed locations or more junior employees in numerous other locations. But the fact that its decision disappointed some of its workers does not mean in itself that the CWA failed to fairly represent any of its members." (Emphasis Added.)

 

[Megasnoop]

Good luck. They do what they want.

Our ALPA merger lawyer Dan Katz warned the MEC about their position on seniority integration. He told them point blank that the position they had taken had no middle ground...they would either win big or lose big. Well, here we are and the scary part to me is that the same players are running USAPA.

Then Katz should have told them they were only going to lose big, not that they would have listened. The old MEC hatched this mess, USAPAs just trying to clean it up. But why keep up the “big lie,â€￾ that we got the same players in there as with ALPA? Its not true and you know it. Bradford never held any ALPA position, except once on the training committee. Mark King was once a PIT FO rep before the merger. Theuer campaigned against ALPA along with me and others since LOA 93. Cleary was doing SBA, appointed by the MEC, but no decision-making position. Mowery got booted off the merger committee back in 2000. Only 1 of 14 east reps recent ALPA elected positions. Only Ciabatonni is a “same players.â€￾ A bunch of old committee members are doing the same jobs at USAPA, and my hat off to them.

Now, you can get all righteous if you like but frankly I think CLT reps were by and large the voices of reason. Pollock was chairman but he didn't even get to vote...same with Stephan. We got some pretty good advise from ALPA legal staff. Problem was, we rarely listened. And by the time we did, it was too late.

I was ALPA objector at the time, but I do know that the DOH vote was unanimous, including CLT Reps, even Stephan and Snider, although they didnt have votes. Pollock was gone before the award. The Stephan/Snider MEC had adequate chance and a lot of prodding from Nicolau to change their minds and find a middle ground, but they didnt. Dont pawn that off on anyone in USAPA leadership. What was ALPA doing giving us legal advice on seniority arbitration? What advice could ALPA legal given us that would have changed where we are right now?

I hate this position we're in, but we did it to ourselves. ALPAs biggest sin IMO was a lack of leadership in the beginning of the seniority process. Too political. But was it any worse than the mess we are in now? I pay dues but I don't feel represented. I feel lied to. I'm along for the ride and obviously out of step with a large part of the pilot group.
But, who cares, right? A320 Driver B)

I think we all care, Driver. How could ALPA have both a lack of leadership and be too political at the same time? Cant have both. Actually, ALPA had to be entirely hands off “in the beginning of the seniority list.â€￾ Apparently you are out of step. Almost every pilot I talk to says weve got to ride this out through appeal.

So is USAPA going to stop posturing, accept Nicolau, and then focus its attention on the Company?

The bickering and posturing I was refering to was Web Board warriors on both sides attempt at morale busting. The vast majority of USAPA (most all East and 0 West) demand that the USAPA play this out in the Appeal, which will determine whether we negotiate with the NIC or DOH. Here's a puzzler, if we win the appeal on the narrow issue of "ripeness," well, you can figure out the mess that creates.
Meanwhile, we have a negotiating schedule with an NMB mediator. We tried to get more dates, but the company (and maybe the mediators) schedule only allowed the dates we got. Ill try to get more info about the not too many negotiating dates.