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

[Blow]

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.

Thanks..and while new here, I hope to contribute and help find the bottom line on this east /west thing and help move forward.

I still find problems with Wake and his jurisdictional decisions.

Your explanations don't alleviate them.

 

[aquagreen73s]

Thanks..and while new here, I hope to contribute and help find the bottom line on this east /west thing and help move forward.

I still find problems with Wake and his jurisdictional decisions.

Your explanations don't alleviate them.

I understand why you say this. I'm just one voice as is HP F/A as is everyone else typing on here. I also understand and accept that East and West will never see eye to eye on this. But given the economy and the damages that's been done by the Wall Street grifters, this discussion might be moot even before the Ninth gets to it. Happy 4th to all. I've always loved this holiday. Beats Christmas hands down IMO.

 

[Elevation]

Hmm. I'm surprised. I thought you understood sarcasm and ascerbic irony. Guess not.

Somewhere in your post is a good look at hypocrisy. USAPA cheerleader style.

Shocking how easily you can see the other side when suits your needs.

He walk right into that Funny how he doesn't see the connection.

 

[Blow]

The DFR is a case about discrimination and Congress has deliberately made it difficult for plaintiffs to get into federal court against a union.
And to be discriminated against, one must have desired participation in some event.
This is where I see these two issues intersect. Wake wouldn't hear it. The 9th will...in my opinion.

 

[aquagreen73s]

The DFR is a case about discrimination and Congress has deliberately made it difficult for plaintiffs to get into federal court against a union.
And to be discriminated against, one must have desired participation in some event.
This is where I see these two issues intersect. Wake wouldn't hear it. The 9th will...in my opinion.

Unions are accorded a lot of deference in how they act. The problem with USAPA is that they're acting in such a way that takes a decision made by an arbitrator, repudiates it and comes up with their own list that benefits every east pilot at the expense of every west pilot, forms a new seniority list without any way for the West to have an imput other than phone calls and emails. All of this was hashed out in court. The judge made the call that as a matter of law, USAPA inherited the arbitration. He didn't say they couldn't mess with it, but that as a matter of law they inherited it. Absent a showing that east and west mutually agreed to change the arbitration, then USAPA violated its duty to fairly represent. That, in a nutshell, was the case that was tried. Dues are mandatory but membership is not.

I'll paraphrase the applicable rule of law: It's the union that has the duty to fairly represent, not the member that has the duty to participate. Therefore, there is no connection between participation and a union's DFR.

 

[Blow]

Unions are accorded a lot of deference in how they act. The problem with USAPA is that they're acting in such a way that takes a decision made by an arbitrator, repudiates it and comes up with their own list that benefits every east pilot at the expense of every west pilot, forms a new seniority list without any way for the West to have an imput other than phone calls and emails. All of this was hashed out in court. The judge made the call that as a matter of law, USAPA inherited the arbitration. He didn't say they couldn't mess with it, but that as a matter of law they inherited it. Absent a showing that east and west mutually agreed to change the arbitration, then USAPA violated its duty to fairly represent. That, in a nutshell, was the case that was tried. Dues are mandatory but membership is not.

I'll paraphrase the applicable rule of law: It's the union that has the duty to fairly represent, not the member that has the duty to participate. Therefore, there is no connection between participation and a union's DFR.

Salient points are highlighted.

Compare with todays verdict...and the 'defense" put forward by Suzie.

No, I'm sorry, but this decision WILL have bearing on Wakes' decision in the appeal.

No question.

 

[Waketurbulence]

Blow aka Nicstolemyjob aka whoever he was before he got kicked off that time....

 

[Blow]

Is there a question for me in that?

 

[Elevation]

The DFR is a case about discrimination and Congress has deliberately made it difficult for plaintiffs to get into federal court against a union.
And to be discriminated against, one must have desired participation in some event.
This is where I see these two issues intersect. Wake wouldn't hear it. The 9th will...in my opinion.

I think you got this idea stuck in your craw that "west" must be members in good standing to receive "fair" treatment from the union. This is false. The union owes all members regardless of standing fairness, this is the law. Why is it so rare that a union loses a DFR case? Because a union has to go so far out of it's way to harm members which is rarely the case by normal unions. USAPA is abnormal, they have exceeded the normal leeway a union is given in representing there members, they are now liable in the Duty of Fair Representation.

 

[Blow]

I think you got this idea stuck in your craw that "west" must be members in good standing to receive "fair" treatment from the union. This is false. The union owes all members fairness, this is the law. Why is it so rare that a union loses a DFR case? Because a union has to go so far out of it's way to harm members which is rarely the case by normal unions. USAPA is abnormal, they have exceeded the normal leeway a union is given in representing there members, they are now liable in the Duty of Fair Representation.

Yes..."so far as a DOH" list?....Surely no other union has done that. Not even AFA who clearly favored the East in this deal...didja see a lawsuit filed?

No matter, the ruling today sets a tone regarding the west and their "treatment" in this merger.
More factual data will be heard....(which Wake shut down)

Good luck.

 

[aquagreen73s]

The issue in the Susie arbitration was whether she was excused from paying dues. The DFR trial was about the union - whether it breached its duty to fairly represent all pilots when it repudiated the arbitration - an arbitration that as a matter of law USAPA inherited. Start with the union. The question becomes what did they do. ALPA had a mechanism for both sides to take a second look at the arbitration. It was risky for them to do this, but probably safe because of the wide deference unions have in how they deal with their members. USAPA did what they did and those acts were heard by the jury through testimony and through admitted evidence. When the judge asked the jury to measure those acts against what the law is on a union's duty to fairly represent, the jury came back with a unanimous decision. ALPA was venturing away from the safest position by creating the Rice Committee and Wye River, but still there was a mechanism for there to be a meeting of the minds by parties with equal stature. Not so under USAPA, so when they began monkeying with an arbitration, they had to be mindful of their duty to fairly represent all pilots. Seham took the position that the arbitration had no binding effect on USAPA. He maintained that it was as if USAPA appeared out of thin air and could start the whole merger process anew. If you start from that premise, then yes USAPA's acts look fair and impartial as it treats all members the same-according to date of hire (minus trump shuttle and empire, of course). But, the law says that Seham and USAPA had to start with the inheritance of the Nicolau arbitration. The jury measured USAPA's acts against that starting point and voila - DFR.

Participation is not required under the law but the payment of dues is. Susie's case dealt with the payment of dues and that issue does not belong in federal court. Rather, it goes through the administrative process of a system board, then an arbitrator, and then to.... circuit court of appeal? I don't know, nor does it matter. Now it's conceivable that something might be used in both proceedings, but that is coincidental and not indicative of a relationship or connection between the two proceedings. I think her argument was something about the WEst not being able to join and participate and that absolved her of paying dues until there was a PHX domicile rep to vote her in according to the USAPA CBLs. Weak, as USAPA clearly allowed the West pilots who sought membership to join all the way back to April 18, 2008. The only issue was that those pilots were accepted into membership in a way that was not in accordance with their own CBLs. Howver, USAPA was never accused of denying those early members any of the rights accorded to other members. Now, membership has nothing to do with USAPA's duty to fairly represent all pilots. We're talking about two completely different things. Seham tried to make the same argument about participation and the jury even heard it. Time and again USAPA witnesses testified about trying to reach out to the West, etc. What is not being accepted by the supporters of the argument is that participation does not matter in a DFR. Period. Bascially what the law is saying is that lack of participation does not give the union an excuse to not represent all pilots fairly. They inherited the arbitration from ALPA. To monkey with that arbitration they could not do it in the way they attempted as there is no way the West could stop the rest of the East. Those were the facts as testified to and admitted into evidence. Think for a moment how 100% West participation stacks up under USAPA versus under ALPA.

And that my friends was the original design of USAPA. Now instead of the west being disenfranchised, it looks like the F/Os are going to try to keep the USAPA leadership entrenched and avoid recalls to stop anything from moving forward. In essence, a monster has been created.

EDIT: One more thing. New evidence will not be heard absent a showing that it couldn't have been brought at trial. An arbitrator's opinion has no controlling effect on a federal court. If there was some smoking gun that came up at the arbitration, then it was up to Seham to get it into evidence before Judge Wake.

 

[Elevation]

Yes..."so far as a DOH" list?....Surely no other union has done that. Not even AFA who clearly favored the East in this deal...didja see a lawsuit filed?

No matter, the ruling today sets a tone regarding the west and their "treatment" in this merger.
More factual data will be heard....(which Wake shut down)

Good luck.

AFA east and west have DOH in the their respective contracts, it is binding (heard that word before haven't we)

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

You come on here asking a question, now you have all the answers and the future locked up.

 

[Blow]

I'm exhausted. Bravo.

Cliff note version:

Susie lost. Every non-payer better grab their checkbook.

Wake controlled the case to such an extent that it will warrant further review in an appeal.

This appeal wil expand the "narrow flyvision" Wake put on it. Thats bad for the west.

Getting the case out of Arizona is a good start.

(long-time lurker affords great perspective)

 

[Elevation]

I'm exhausted. Bravo.

Cliff note version:

Susie lost. Every non-payer better grab their checkbook.

Wake controlled the case to such an extent that it will warrant further review in an appeal.

This appeal wil expand the "narrow flyvision" Wake put on it. Thats bad for the west.

Getting the case out of Arizona is a good start.

11 posts on your first day!!! You must be tired. You should be rested up with your last stint in cornfield. Welcome back.

 

[aquagreen73s]

Susie lost. Every non-payer better grab their checkbook.

Yes, but plaintiff's attorney's fees are coming. The money is going to make a circular loop.

As HP F/A explained, the appellate court looks at the record. Nothing new comes in. Appellants don't get a second bite at the apple. Any east pilot who doubts this needs to go ask a very simple question to the neighbor attorney: "can an appellant get in new evidence to get the appellate court to overturn a jury verdict in a trial court?"

The answer is going to be no (and if it isn't, then don't ever use them as an attorney). The trial judge is on trial in an appeal. You don't get to rehash the same case. Appellate work is really quite boring. Think about the fellas looking at the Florida votes in 2000. That is basically what the appellate court is going to do. They're going to look at the record involving each claim Seham makes, hold it up to the light, and see if there is something irregular because of what their judge did or allowed to happen in court. Then they'll put it down and go onto the next one. I'm sure there'll be a challenge as to Judge Wake's interpretation of the law; whether as a matter of law the arbitration was binding on a new union. For my money, that's a really really easy one to answer but we'll wait to hear it from the three judges I suppose.