US Pilots' Labor Thread 6/30-7/7 KEEP ON TOPIC-NO PERSONAL COMMENTS

[Blow]

Long-time lurker in a crash pad. Just wondering how todays ruling affects the appeal in SFO.
Seems like it has some bearing.

 

[hp_fa]

How would that have any bearing in a federal DFR action?

 

[Blow]

How would that have any bearing in a federal DFR action?

Dunno...I guess you're the lawyer here. When the larger picture is allowed to be painted in SFO (as opposed to the very narrow road Mr. Wake traveled) I'm just wondering about the "helpless" nature that the west has projected and how it bears going forward....since the System Board just kicked them in the teeth...I guess thats my question.

 

[hp_fa]

First, I am not a lawyer.

Next, the appeal is even narrower than the trial court case. The appeal can only deal with alleged errors of law, not errors of fact. So that means that the appeal must concern itself with alleged errors of law committed by Judge Wake. Next, the page length of the appeal is highly restricted, so the appellants cannot write a book and hope something sticks. They need to target a few points and address them and hope the 9th Circuit agrees with them.

A normal DFR case never makes it to trial and this one did and then received a plaintiff's verdict.. A normal appeal does not result in an actual reversal. What those two sentences mean is that, from an odds perspective, this case went from nominally being highly favoring to the defendant to now being less than a one-in-five shot. (Probably somewhere between one-in-ten and one-in-twenty.)

Welcome to the forum.

 

[Metroyet]

Dunno...I guess you're the lawyer here. When the larger picture is allowed to be painted in SFO (as opposed to the very narrow road Mr. Wake traveled) I'm just wondering about the "helpless" nature that the west has projected and how it bears going forward....since the System Board just kicked them in the teeth...I guess thats my question.

You're exactly right. Notify Seham and the billing machine! You've uncovered the secret formula!! The East has been waiting for a saviour with such unimpeachable sage advice for a few years now...thank Christ you've arrived. There's no stopping USAPA and their "final soulution" now.

 

[aquagreen73s]

I'm just wondering about the "helpless" nature that the west has projected and how it bears going forward....since the System Board just kicked them in the teeth...I guess thats my question.

The arbitration has nothing to do with the DFR. Judge Wake will issue the final order, probably next week, and that will conclude the class action. The injunction which will issue is called an equitable remedy and only that remedy affects the West class as a whole. The plaintiffs in a successful DFR are entitled to attorneys fees and that application will be made right after the injunction is entered into the record. The other thing that will happen once final is that USAPA will be able to appeal to the Ninth Circuit and at that moment in time, Judge Wake loses the case and the appellate court then has jurisdiction. USAPA will ask for a stay of the injunction until the 9th hears the appeal, but for that to occur there must be a showing of irreparable harm. In other words, the petitioner for a stay must show that the immediate application of the trial court's remedy would result in a harm to the petitioner that could not be undone. The easiest way to illustrate stays is in death penalty cases. By law, a defendant sentenced to die receives an automatic stay of execution pending appeal, and the reason for this should be obvious. That is cleary irreparable harm should the sentence be carried out. USAPA can make the argument that the injunction also is an irreparable harm, but how? Being told they have to use Nicolau is not an irreparable injury as it could be undone later on. Furthermore, the strong presumption is that the remedy is fair - and that's a legal presumption as it issues from a trial judge and is against a defendant who has been found guilty.

The chances for a successful appeal are about as close to zero as one can get. 95% of the cases are not disturbed, but for those who followed this case it is difficult to find anywhere that the judge made a mistake. Note, the appeals court does not look at the arguments made before the jury. Rather, the three appellate judges look at the record and see if the trial judge errored in such a way that the appellant was prejudiced. But, there needs to be more than a mistake. The appellant must show that it was more likely than not that the jury would have reached a different result, but for the judge's mistake. Before he took the bench in 2003, Judge Wake was an appellate attorney and he had a tremendous amount of experience in picking apart trial courts. Anyone who has followed this trial from the beginning, it is very apparent that he is quite good at giving each side the room they need to litigate. Most claims on appeal attack this very part of the process: that they were precluded by the judge to argue X or that the admission of evidence Y prejudiced them, etc. The judge let a lot of evidence in and he let the attorneys on both sides run with their cases. The only other possibility for an appeal is that the appellant argues that the judge got the law wrong. Now, in my opinion (this is totally subjective, and I'm a West pilot), the judge got the law right on this. Why? Because binding means binding, and his interpretation harmonizes perfectly with the McCaskill-Bond legislation which codifies that legal principle. Why would a federal district court or a circuit court of appeal adopt a rule of law in this case when the Congress has just legislated in this exact scenario that the binding arbitration is the seniority list? Answer: they wouldn't. Not in a million years.

So, that's why there's a lot of relief out on the left coast. This thing is done.

Edit: One more thing that HP"s post just reminded me of...this is problem for USAPA in having the verdict come from a jury. Jury verdicts are sacrosanct and there's no way an appellate court is going to overturn a verdict from the jury. The only target for USAPA is going to be the judge. Whenever he was presented with an issue that was appealable, he always took the conservative path by letting the evidence in and then letting the lawyers argue about it. Anything that was remotely close to being privileged or prejudicial was excluded. Peruse the evidence that was admitted and see for yourself. The West wanted to get in all kinds of communications that Bradford had with Seham and there was a good argument that Bradford waived attorney client privilege when he cut and pasted some of the communications into letters for public distribution, and when Seham proclaimed that he represented all US Airways pilots. Hmmm. If he represented all US Airways pilots, then the plaintiffs are clients too and they wanted to see the communicaitons. No dice said the judge.

USAPA got a very fair trial.


One final edit: a union's right to collect dues under the RLA is absolute. The plaintiffs asked for a vacation from dues payment during the DFR period and that was rejected by the judge. He's a fair judge and the law was more on the side of USAPA than the plaintiffs on that one. The arbitration was pretty much a foregone conclusion IMO, and I was quite frank with West pilots about that opinion recently. In the end it doesn't matter as the West pilots should join, pay dues and vote. Where this union is headed is that the West is getting a permanent injunction which means the Nic will be list come hell or high water. The East F/Os had nothing to lose, so they're back to where they started. Now the focus is on the East captains as they had everything to lose by supporting their F/Os. They did, and I admire their committment to the lower half of the East senioity list. But now that DOH or Nic mitigation is futile, I wonder if the East F/Os will reciprocate and help their captains get a pay raise. Already the captains have given up $60K plus over the last two years; $75K if we use Stephan's testimony of Kirby + 8%. Going forward there will be more of LOA 93 and if you think the snapback is actally a viable consideration, then ask yourself why your own union is negotiating for pay rates that are less than LOA 84. Why? Answer: because LOA 84 snapback is a recent invention by Cleary and gang to keep the focus on the original gameplane of attacking the West. That my friends on the East, is a pointless endeavour now. We have the Nic. What none of us have is a respectable contract. Ours is bad, but holy smokes it's a lot better than what the East has. $124 an hour for AB left seat is . . . quite low. The only way out of this is through a joint contract and that means working together and honoring the court's order.

 

[Blow]

And so if I read you right...the west now owes USAPA back dues to April '08. About $2 million or so?
Now, the 9th hears the case, Wakes control over the testimony of fact, his manipulation of evidence...and his quick package-job for appeal.
Is that close?

Judge Wake loses the case and the appellate court then has jurisdiction.


I see that as his goal all along.

 

[hp_fa]

Now, the 9th hears the case, Wakes control over the testimony of fact, his manipulation of evidence...and his quick package-job for appeal.
Is that close?

Judge Wake loses the case and the appellate court then has jurisdiction.

I think you are mis-stating it probably due to not fully understanding it.

A trial court determines the facts in any case. The appellate court only potentially revists matters of law. Now, if the appellate court were to determine that, as a matter of law, that Judge Wake made a fundamental error in applying the law, including evidenciary rulings, jury instructions or else mis-applied the law as it exists in the 9th Circuit (either Supreme Court cases or other 9th Circuit cases) it could remand the case back to Judge Wake for a new trial. The odds against that, at this point, are no longer what most folks would deem betting odds. (10% or less) The odds for USAPA were much better going into this whole thing because favorable results for a plaintiff are exceedingly rare. As I said in my previous post, most DFR cases never make it to the trial stage. (The actual percentage is probably less than 5%.) This case got past that and resulted in a plaintiffs verdict. The odds for USAPA succeeding at this point are slim at best.

I sat through all but the first day of trial as an observer. I don't think that the decision will be overruled, but of course it is possible that I am wrong.

Does that help at all?

 

[Blow]

Not really.

Can you explain why or how things like west openly defying participation in the union had no bearing in the representation case, but were underscored in the dues case?
I read the system board read right through the west story in the dues case....and saw the posturing for what it was...whereas Wake ignored and over-ruled such testimony in his court?

curious

 

[hp_fa]

Not really.

Can you explain why or how things like west openly defying participation in the union had no bearing in the representation case, but were underscored in the dues case?
I read the system board read right through the west story in the dues case....and saw the posturing for what it was...whereas Wake ignored and over-ruled such testimony in his court?

curious

I am not a pilot and generally stay out of the system board stuff. Judge Wake determined that he had jurisdiction of the DFR injunction case and repeatedly overruled Seham's claims that the system board was the correct place for adjudication of the plaintiff's claims. Therefore Judge Wake accepted jurisdiction of the DFR case and proceeded with that. Someone else will need to discuss the system board issues and the Susie arbitration with you because I have too little knowledge of them to express a meaningful opinion.

 

[Metroyet]

I think you are mis-stating it probably due to not fully understanding it.

C'mon HP.

He understands it perfectly well. This is flame bait from the East corn field. You don't see that?

In a nutshell, USAPA gets to attempt collection on 1700 or so individual West pilots. The average FO is now out 400 more dollars than they would have been if the Arb. had gone the other way. That's it. That is what USAPA has won...The first big win from the nations largest, most fake and fraudlulent Labor union.

They are still Guilty of DFR. That won't go away. Still Liable. Still Disfunctional. and again, has over 40% of their "membership" unwaveringly dedicated to their destruction.

Some Union. Get those certified letter stamp lickers organized, you have a lot of work to do.

 

[Blow]

Judge Wake determined that he had jurisdiction of the DFR injunction case and repeatedly overruled Seham's claims that the system board was the correct place for adjudication of the plaintiff's claims.

And that is where the next chapter begins...as I see it.

 

[Metroyet]

And that is where the next chapter begins...as I see it.

Such interest in such a short amount of time...Holiday Weekend even. Welcome.

"Newbie"

 

[aquagreen73s]

Can you explain why or how things like west openly defying participation in the union had no bearing in the representation case, but were underscored in the dues case?

Apples and oranges. Those are good questions, but they're also rather elementary and you need to study what a federal court has jurisdiciton over, versus that of an administrative agency. Congress determines the cases which a federal court can hear. THey also create administrative agencies such as the NMB as they see fit and the idea is to have that agency conduct matters within the juridicition that Congress creates for it. THink NTSB hearings ("FAA court") when there's an FAA enforcement action against a pilot. Think Immigration Court. The EPA has their own litigation court (don't know what it's called). The arbitration today was under the RLA and it involved an appeal from the system board of adjustment. A federal court will never get involved in that, save for something weird like the board was composed of KKK members and they decided the issue based on race. Now you've invoked federal court jurisdiction because the 13th and 14th Amendments prohibit discrimination based on race.

The DFR is a case about discrimination and Congress has deliberately made it difficult for plaintiffs to get into federal court against a union. I know USAPA minimized the finding of jurisdiction last November, but in reality it was huge and that order alone made the rounds in two labor law publications that I know of. Then we went to trial and we all know the result from that. The point is that a DFR belongs in a federal trial court and not before some administrative agency. Again, Congress decided that to be the case.

In short, what goes on in an administrative agency almost never involves an interference by a federal court and vice versa. Most appeals from an administrative agency can ultimately go to a circuit court of appeals, but that's where it stops. So for a pilot who gets nailed by the FAA and loses at the FAA hearing, he can appeal to the NTSB judge (there's five of them). Lose there, and the pilot goes to the circuit court of appeals in that area. Notice how the federal district court is nowhere in that sequence. The arbitration falls under the same sort of process. From here Susie could technically appeal to the circuit court of appeals, but why?

Your question is just too broad to answer in one post. One entire year of law school is devoted to civil procedure as it's a very complex system.

 

[Snowskier]

Really?...Who? If you would so kind as to pm me, if not actually post this supposed contact by at least title, I'd appreciate it. I ask that honestly, as I'd like to hear the same thing from him for the betterment of my own education. "I heard it from someone" always leaves me just a little bit uncertain.....

And I'm sure others are skeptical as well. But I'm not going to PM you his name because I don't know who you are and I'm not going to give out titles because it'll be quite obvious as to who I'm talking to. This individual has done a great job answering my questions and I don't want to see him get cut-off from the flow of information. He laughed at me and call me "nuts" when I told him I started posting here and I'm already four posts beyond the one post I said I was going to make. But its been civil so far.

I was also asked today why I wasn't wearing any USAPA gear which started a 30 minute discussion. Much frustration and we parted with an agreement to disagree.

Most of the discussion centered around the appeal and the contract. I asked him how far he was willing to take it and he answered with "all the way." He was aware of the time it was going to take to get an appeal heard and I asked him about the money we were missing out while we waited the year and a half and he came back with snapback.

This was definitely an area we had different views on as I don't believe we'll say anything but our current rates until we get a new contract. I asked him if his position would change if we didn't see his snapback and he responded with a "no."

To sum it up, it was his position to stand firm and stay the course. I found this to be very shortsighted and naive. Working under LOA 93 for at least another year waiting on a appeal that more than likely will go nowhere just doesn't make sense. And during that entire time, Wake's remedy will be hanging over us.

I just don't see a winning strategy with USAPA's current plan.