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

[Megasnoop]

USAPA or any union has the authority to charge cost of fair representation litigation to the bagaining unit. They can also charge the bargaining unit with the damages they lose in a DFR lawsuit.

You DO get it! Almost.

A litigant who wins damages has the right to claim them.

These are two completely seperate issues.

I would love to watch Seham explain why it does not matter that he lost a lawsuit because the damages will be paid for by the class that was awarded those very same damages.

Again, Ellis affirms that USAPA can charge cost of fair representation litigation to the bargaining unit. You, me, every USAirways pilot is on the hook for these cost. The difference between an East pilot and a West pilot is that the West pilot is in the class that won the lawsuit, ( an identity seperate from USAPA) and will be able to claim any damages that are awarded.

You really do understand Ellis. FINALLY! Pass it on to TAZZ when he comes back from "vacation." Of course there 2 separate issues.

You still got to prove a financial loss to get damages, Nic4. They just arent there. With what unfolded on May 13 and what will unfold in the next 2 weeks, even more proof damages arent there. Thats why your lawyers are cooking up this comic conspiracy between ALPA and USAPA to get damages. Did the "class" sign a 33% contingency fee? It dosnt even pass the laugh test. You think your going to find documents proving USAPA was working with ALPA and Wilson Poll (the non-parties). Do they really think theyre going to get anything out of ALPA that could bring in a deep pocket? Heres AOLs latest fantasy,

Case 2:08-cv-01633-NVW Document 471 Filed 05/19/2009
"Indeed, in the interests of continuing to expedite the next phase of these proceedings, Plaintiffs seek leave to propound limited, focused subpoenas for documents on non-parties. Plaintiffs have a good faith basis to believe that evidence exists that will support their claims in the next phase, and that such evidence will be used to oppose USAPA’s impending motion for summary judgment. Plaintiffs did not learn about the evidence until late in the trial, notwithstanding the fact that USAPA was aware of relevant information and failed to disclose it.

Specifically, but not exclusively, Plaintiffs have learned of documents that likely directly contradict the testimony of one of USAPA’s key witnesses, Jack Stephen. Plaintiffs intend to direct subpoenas to ALPA and one of its vendors to produce documents that Plaintiffs believe will directly contradict the testimony of Mr. Stephen and other USAPA witnesses concerning what USAPA has referred to as an “impasse of indefinite duration.

Plaintiffs respectfully request that this Court allow them to propound their limited, focused discovery as soon as possible to allow them to continue to pursue their claims expeditiously."

You and Wake are now out on a limb with no damages. AOLs trying to manufacture a case that ALPA and USAPA were in a conspiracy to deny the West the benefits of the Nicolau award. They are grasping at straws and will try to tie Jack Stephan and other former ALPA officers to this fantasy. Just cant wait to see ALPA going to court to stop that witch hunt. The classic “the enemy of my enemy is my friend.â€￾ Weve got no idea what ALPA was doing or thinking, but one thing we know, ALPA wasnt talking to us about anything. In the 1/1000th of 1% chance that a conspiracy existed, USAPA wont be the only union in BK. The ultimate insult on ALPA, having to pay damages on top of losing dues money.

In the Ciabattoni deposition, AOL lawyers were obsessed with questions about his removal as PHL Rep. They wanted to tie bodies to their USAPA/ALPA conspiracy fantasy. They didnt get the answers they wanted because there was no conspiracy. They wanted to make the case that the PHL reps were just the tip of the iceberg and all the ALPA reps were closet USAPA supporters. The West is attempting to reach into the history of East MEC and find a conspiracy where none existed. Do you really believe that ALPA national spent millions trying to save the property, yet had no idea of a "super double secret" conspiracy going on in their midst or worse yet, participated in one??

Nic4, I get all my info off public sources, based on what all attorneys have already filed. You can research to your hearts content. It doesnt add up and wont fly.

On Ellis, my point exactly.

On Wake's discussion of damages, he is saying you may not get damages for lost wages etc...because there will be no way to prove that a CBA with improved wages etc would have been reached or when it could have been reached.

So your team has created this last minute cock-and-bull conspiracy theory. The Hail Mary revelation, from the secret ALPA sources. Laughable. George

 

[aquagreen73s]

You still got to prove a financial loss to get damages, Nic4. They just arent there.

Talking yourself into another disappointment, are we Snoop?

 

[hp_fa]

OK Megasnoop, here comes my analysis of Eliis. A complete copy may be found here.

Before we actually start, for all of you that don't have a legal background let's go over a few principles. First, the reader must be careful to not accept as the Court's holding all of the material that is cited and discussed in the Opinion before the Court actually begins to comment on the merits of the case and the precedents that have preceded the case on various points of law. Second, you must read the full potion of the Opinion that you cite so that you get the complete flavor of what the Court is trying to establish. Since the Court is only actually deciding one case based on the facts and factors before it differing fact patterns may well lead to differing results despite the past precedents.

So, let's make a go of it, shall we?

USAPA legal fees will be paid by the bargaining unit. The bargaining unit, not just members. U.S. Supreme Court case Ellis V The Railway Labor Clerks. Once upon a time in a galaxy far far away…, actually the Ninth Circuit; a RLA case emerged called Ellis v. Railway Labor Clerks (actually a Western Airlines case). The plaintiffs, (Ellis), didn’t want to have their dues pay for certain union activities and so they went to court and the case ended up before the Supreme Court.

The Supreme Court stated in its preamble,

Section 2, Eleventh of the Railway Labor Act permits a union and an employer to require all employees in the relevant bargaining unit to join the union as a condition of continued employment. Petitioners, present or former clerical employees who objected to the use of their compelled dues or fees for specified union activities, filed separate suits (later consolidated) in Federal District Court against the respondents.
The parties disagreed about the adequacy of the rebate scheme, and about the legality of charging objecting employees with union expenses for (1) the national union's quadrennial Grand Lodge convention, (2) litigation not involving the negotiation of agreements or settlement of grievances, (3) union publications, (4) social activities, (5) death benefits for employees, and (6) general organizing.
(Boys and girls, pay attention to (2) litigation….)

All of what you quoted there was the syllabus, and not even complete. The syllabus is someone's opinion of what the case says, not actually what the case says. This is important because the syllabus writer is likely not writing the syllabus in the same context that one is reading it, especially if they are looking at the case but have a totally different fact pattern in mind as they look for guidance.

The actual opinion of the Courts starts immediately after this phrase.

"JUSTICE WHITE delivered the opinion of the Court."

We remain convinced that Congress' essential justification for authorizing the union shop was the desire to eliminate free riders - employees in the bargaining unit on whose behalf the union was obliged to perform its statutory functions, but who refused to contribute to the cost thereof. Only a [466 U.S. 435, 448] union that is certified as the exclusive bargaining agent is authorized to negotiate a contract requiring all employees to become members of or to make contributions to the union.

Hence, when employees such as petitioners object to being burdened with particular union expenditures, the test must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Under this standard, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and administering a collective-bargaining contract and of settling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit.
With these considerations in mind, we turn to the particular expenditures for which petitioners insist they may not be charged.
…..5. Litigation. The expenses of litigation incident to negotiating and administering the contract or to settling grievances and disputes arising in the bargaining unit are clearly chargeable to petitioners as a normal incident of the duties of the exclusive representative. The same is true of fair representation litigation arising within the unit, of jurisdictional disputes with other unions, and of any other litigation before agencies or in the courts that concerns bargaining unit employees and is normally conducted by the exclusive representative.

You have actually mashed up a few separate portions here so lets break them out a bit just for clarity.

We remain convinced that Congress' essential justification for authorizing the union shop was the desire to eliminate free riders employees in the bargaining unit on whose behalf the union was obliged to perform its statutory functions, but who refused to contribute to the cost thereof. Only a union that is certified as the exclusive bargaining agent is authorized to negotiate a contract requiring all employees to become members of or to make contributions to the union. Until such a contract is executed, no dues or fees may be collected from objecting employees who are not members of the union; and by the same token, any obligatory payments required by a contract authorized by § 2, Eleventh, terminate if the union ceases to be the exclusive bargaining agent. Hence, when employees such as petitioners object to being burdened with particular union expenditures, the test must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Under this standard, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and administering a collective bargaining contract and of settling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit.

That is the entire paragraph. Under the fact pattern of Ellis the third sentence is not material to this discussion and you can effectively skip it as you apply Ellis to Addington. The following sentence, contained above, gets to the the crux of the issue.

Hence, when employees such as petitioners object to being burdened with particular union expenditures, the test must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.

(Emphasis Added)

From the entire West perspective the Addington litigation expenses incurred by USAPA are NOT for "the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues." You can't make this intra-union squabble arising from a successful DFR litigation to be contained within the context of the quoted text from Ellis.

The next part is actually a sub-part that arises further in the opinion under what is and isn't a reasonable expense. I will quote your phrase and then the actual phrase from the opinion.

5. Litigation. The expenses of litigation incident to negotiating and administering the contract or to settling grievances and disputes arising in the bargaining unit are clearly chargeable to petitioners as a normal incident of the duties of the exclusive representative. The same is true of fair representation litigation arising within the unit, of jurisdictional disputes with other unions, and of any other litigation before agencies or in the courts that concerns bargaining unit employees and is normally conducted by the exclusive representative. [/i]

5. Litigation. The expenses of litigation incident to negotiating and administering the contract or to settling grievances and disputes arising in the bargaining unit are clearly chargeable to petitioners as a normal incident of the duties of the exclusive representative. The same is true of fair representation litigation arising within the unit, of jurisdictional disputes with other unions, and of any other litigation before agencies or in the courts that concerns bargaining unit employees and is normally conducted by the exclusive representative. The expenses of litigation not having such a connection with the bargaining unit are not to be charged to objecting employees. Contrary to the view of the Court of Appeals, therefore, unless the Western Airlines bargaining unit is directly concerned, objecting employees need not share the costs of the union's challenge to the legality of the airline industry mutual aid pact; of litigation seeking to protect the rights of airline employees generally during bankruptcy proceedings; or of defending suits alleging violation of the nondiscrimination requirements of Title VII of the Civil Rights Act of 1964.

I agree that the sentence that you bolded and underlined addresses the issue in dispute. However, under the totality of the circumstances, I would argue that a distinction exists and must be made for "fair representation litigation arising within the unit" where the union loses the fair representation litigation and is found to have violated the Duty of Fair Representation. To rule otherwise would turn well-settled contract law upon it's head in making the winner pay a portion of the losers costs and fees, especially when the loser is required to pay the winners costs and fees.

BTW, I had no nightmares last evening.

 

[nic4us]

You really do understand Ellis. FINALLY! Pass it on to TAZZ when he comes back from "vacation." Of course there 2 separate issues.

You still got to prove a financial loss to get damages, Nic4. They just arent there.


Specifically, but not exclusively, Plaintiffs have learned of documents that likely directly contradict the testimony of one of USAPA’s key witnesses, Jack Stephen. Plaintiffs intend to direct subpoenas to ALPA and one of its vendors to produce documents that Plaintiffs believe will directly contradict the testimony of Mr. Stephen and other USAPA witnesses concerning what USAPA has referred to as an “impasse of indefinite duration.

So your team has created this last minute cock-and-bull conspiracy theory. The Hail Mary revelation, from the secret ALPA sources. Laughable. George

I do not know what is going on with the ALPA subpoenas, but I would not want to be Jack, if it looks like perjury may have occured.

Damages are easy. If I sign a contract with the telephone company for a years worth of service, and they never connect my line, do I owe them $39.95 an month for that year of service? I am not saying they owe me for all the calls I could not place, just that I do not owe them for the lack of service they are trying to charge me for.

 

[hp_fa]

BTW, I was well into the research and writing process when most of the responses to Snoop's post were made. So in case anyone was wondering, no I wasn't reading other's posts and doing a "me too" response.

 

[Hawkhunter]

Wrong again, I'm an East pilot.

Only a USAPA supporter calls not having your job stolen a winning lottery ticket.

When was I wrong before? You are a East pilot who has his and now wants more. I am sure DOH worked well for you in the past and now you just want more money and possibly a PHX base. How close am I? Where do you come up with this stolen crap? I bet you are a riot to fly with. Do you talk so tough with your F/Os? I bet not.

 

[Megasnoop]

OK Megasnoop, here comes my analysis of Eliis.

So, let's make a go of it, shall we?

The professor speaks. Sorry you cant handle my brevity, but the longer the quotes, the quicker you lose readers. The Court spoke: DFRs are germane expenses.

I agree that the sentence that you bolded and underlined addresses the issue in dispute. However, under the totality of the circumstances, I would argue that a distinction exists and must be made for "fair representation litigation arising within the unit" where the union loses the fair representation litigation and is found to have violated the Duty of Fair Representation.

Make all the totalities you want, youd still be wrong, hp. The court ruled 8-1 otherwise. There was no distinction in the ruling. You cant change that simple fact with lengthy posts. Ellis lost. He had to pay as a non-member for DFR costs. Your comments are starting to resemble the first two syllables of your “analysis.â€￾

To rule otherwise would turn well-settled contract law upon it's head in making the winner pay a portion of the losers costs and fees, especially when the loser is required to pay the winners costs and fees.

Wow, I cant believe the Supreme Court missed that.

We remain convinced that Congress' essential justification for authorizing the union shop was the desire to eliminate free riders employees in the bargaining unit on whose behalf the union was obliged to perform its statutory functions, but who refused to contribute to the cost thereof.

The petitioners didnt have to pay for the organizing, but they did have to pay germane DFR litigating expenses and the court didn’t seem to care which side they were on. No matter how you parse and deflect, counselor, you cant change how the Supremes ruled The expenses of litigation incident to negotiating and administering the contract or to settling grievances and disputes arising in the bargaining unit are clearly chargeable to petitioners as a normal incident of the duties of the exclusive representative. The same is true of fair representation litigation arising within the unit, of jurisdictional disputes with other unions, and of any other litigation before agencies or in the courts that concerns bargaining unit employees and is normally conduct ed by the exclusive representative.

hp, weve both had our say on this. We wont agree and its worn out. Give this one a rest.

 

[electricjet98]

hp, weve both had our say on this. We wont agree and its worn out. Give this one a rest.

In other words hp fa, quit confusing him with the facts!

 

[Metroyet]

Who Cares about Ellis? The main thing is usapa LOST, (again). Besides, USAPA is finding it more than a little difficult to collect dues from the vast majority of West pilots after 15 MONTHS of threats and bravado. The West will just keep stiffing them until they go BK or are voted off the island...problem solved. USAPA is nothing more than an irritating gnat buzzing in your ear.

 

[hp_fa]

Snoop, Ellis was not a DFR suit. It was a case where non-members paying agency fees objected to various expenses for which they were charged and the method of payment of the monies that were paid or assessed to those non-members. My reading of Ellis does not find that any cause of action alleged a violation of the Duty of Fair Representation. Accordingly the phrase "fair representation" as used in that decision should, in my opinion, not be conclusively viewed as saying what you contend it does in a DFR context. My reading of the phrase "fair representation" as used in Ellis would be litigation arising in conjunction with the rights and obligations of the entire bargaining unit in conjunction with its dealings with outside parties, not a DFR case that the bargaining unit lost to some of it's own represented parties.

You also seem to like to gravitate toward the term "free riders". I don't think that is applicable to the discussion we are having, specifically whether individuals that were employed by AWA should, as part of their rightful membership dues or agency fees, be partially paying for the DFR litigation in which they were the prevailing party against their own union. Just so we are clear it is not my contention or opinion that West folks are not subject to dues or fees to USAPA for things that are rightfully within the scope of items for which they should pay as being germane to the duties of the sole bargaining unit. My contention is that the legal costs and fees in the Addington case should not be assessed to West members since USAPA was acting solely in the interests of East pilots in those litigations.

I do agree that we will need to wait to see whether this issue is resolved by Judge Wake at the remedy stage or by the plaintiffs in the damages stage, but my opinion is that there is no valid legal reason for the plaintiffs to be responsible for any of USAPA's legal costs and fees attributable to Addington.

 

[cleardirect]

Snoop,

Are you as sure of Ellis as Seham was about Rakestraw saving usapa from DFR?

We know how that turned out.

 

[700UW]

A couple of cases that set up the dues objectors status is Beck vs CWA and Whirpool vs Machinists, those two cases my enlighten the topic of germane and non-germane expenses.

 

[luvn737s]

Germane expenses are limited to those directly related to representation, contract administration and grievance processing. USAPA's decision to knowingly make DOH a bedrock of their constitution after Nicolau was rendered, placed them in direct opposition to an arbitrated award their were compelled to support after inheriting it from ALPA. The Addington trial was not a defense of their ability to represent the pilots, but an indictment on their decision to trample the rights of the west pilots by circumventing the Nicolau award.

That ought to be short enough to keep from boring those readers.

Is there a Neilsen rating for posters?

 

[Phoenix]

When was I wrong before? You are a East pilot who has his and now wants more. I am sure DOH worked well for you in the past and now you just want more money and possibly a PHX base. How close am I? Where do you come up with this stolen crap? I bet you are a riot to fly with. Do you talk so tough with your F/Os? I bet not.

Talk tough to F/Os? Are you kidding. Who can see well enough to do the night landings?

 

[luvn737s]

Who flys nights?