USAPA Loses DFR Case!/US pilot thread

[BoeingBoy]

If it is Public Law 110-161, I have seen some internet materials that said that if both parties are represented by the same bargaining unit than that bargaining unit's policies trump Public Law 110-161, but I am neither sure that is the applicable law nor did I do much research except to try and frame my question above as to what new law we are discussing.

I've never known what the number of the law was - it passed Congress as an attachment to one of those huge omnibus funding bills. But that sounds like the one, which calls for negotiation/arbitration (specificly section 3 & 13 of the Allegheny/Mohawk LPPs) when different unions represent the two sides or one/both sides are non-union.

Of course, ALPA represents the pilots at more U.S. carriers than any other union and has the arbitration provision in it's merger policy, so just because a union's merger policy would be controlling doesn't mean that arbitration wouldn't be a factor and therefore this case could have an effect.

Jim

 

[boeingplt]

I am discussing West and East, for the purpose of an internet discussion group, as the past ALPA represented individuals that worked for America West Airlines ("West") and those that worked for US Airways ("East') at all times relevant to this case. The Judge will make whatever distinctions he wishes to make in defining those terms, but I am simply using them in the context most of the posters here are also using those terms.

I wasn't trying to be cute, just to point out that the premise of an east/west independent vote would run into problems under the RLA due to there being only one group by their definition.

 

[BoeingBoy]

Odd that a separate vote wasn't a problem under the RLA when ALPA was the CBA. The internal union structure during this transition period is a creation of USAPA, not the RLA.

Jim

 

[usabusdriver]

I believe that the Judge believes he can't force implementation of Nicolau. He may think that he can compel it to be contained in any CBA presented to the pilots until a CBA is ratified, but I tend to doubt that he would do that. It is my view that perhaps Seham's suggestion of returning West and East to status quo ante as far as having an effective veto right as a group to any CBA presented to the pilots until one is finally agreed to may be his remedy. In other words both groups would have to each agree to a CBA by a 50% +1 majority.

HP_FA,
Here is the appropriate portions of the transcript from that day.

THE COURT: Absolutely.
To assist you in thinking about what's on my mind, I haven't even looked back at the pretrial statement for the bench portion of the trial since we began the trial. So I am not having in mind everything. I basically folded into that both sides' statements of issues without having the ability to decide whether I thought they were right or not. But as I think about this at times, Mr. Stevens, it seemed to me that if the plaintiff prevails, the remedy is an injunction that orders the union to negotiate for the Nicolau Award. And I can't think of any other remedy. You had mentioned something about ordering -- something about foregoing a ratification vote. And I'm not sure what you are saying. If all you meant to say is that the Court should order that there be no specific individual ratification vote on the Seniority List, no one is contenting that there is any right to that. So I don't think the Court needs to say that. If you are contending that the Court should fashion some kind of injunction that allows the -- a final proposed CBA to be voted on somehow without addressing the Seniority List, I have two concerns that you will want to address. One, is I'm just -- I can't visualize how that could be done, and second, it seems to me that the members of the collective bargaining unit have an absolute right to vote up or down on a CBA and that no court can control that. Now, whether that doesn't --and I'm not sure if there are any other remedy issues that you had in mind. Let me look -- I had the clerk print this for me, so let's see what you all listed.
MR. SEHAM: When it's appropriate, defendant counsel has a suggestion to make.
THE COURT: I want to hear from the plaintiffs first. Now, all this is without prejudice. I just wanted to help -- tell you what my thoughts are. But these aren't conclusions.
MR. HARPER: My recollection is that we addressed this on the Monday before the trial started, or at least shortly before the trial started. And your position at that point in time was that if we took you any further than just the injunction with respect to bargaining with the Nicolau Award it was premature and that you wanted to wait to see how future events worked out before you addressed that, even though we were trying to direct you to it. So that's my recollection. You didn't reject it you just didn't want to be drug there.
THE COURT: That was all just TA'd at best.
MR. HARPER: Right. Can we vote?
THE COURT: No. I have the only vote.
MR. HARPER: But that's my recollection.
THE COURT: To be direct, Mr. Harper, is there any other remedy that you would be asking the Court for if there's a judgment for the plaintiff?
MR. HARPER: Without prejudice, no. But that's why we're going back. We have people working on the materials today. So we need to go back and check with them and to kick it around a little bit.
THE COURT: Mr. Seham.
MR. SEHAM: As you have learned through this proceeding, the labor unions are political animals. So it's with a very high level of temerity I suggest an alternative remedy. I don't want any of my back benchers on either side to suggest I would be happy with this alternative remedy.
THE COURT: This entire discussion is without prejudice to your position on the merits.
MR. SEHAM: Could still mean my lynching. But in any case, what we would suggest is in terms of remedy, if -- assuming we lose on terms of liability is, as more appropriate, would be a return to what we consider -- and I think the facts establish -- as a status quo ante, which is that both sides, East Pilots and West Pilots, have leverage over the other. Now, one might conclude that --
THE COURT: How would that be done?
MR. SEHAM: It's actually plead by the plaintiffs' complaint. And if, for example, it's the finding of the Court that USAPA in its formation and its proceeding in bad faith circumvented a process under which West Pilots have their own veto, that the appropriate remedy, both in terms of returning to the status quo ante, and not giving the plaintiffs something they were not entitled to even under ALPA Merger Policy, would be not to obviate ratification but rather command that there be ratification by majority vote by both East USAPA members in good standing and West USAPA members in good standing. That would return the status quo ante, and also, I think this is a very strong consideration in terms of public policy, that it is that it would remove the Court from the obligation to engage in ongoing supervision. In other words, there wouldn't be a court hovering over the parties determining whether week to week there's going to be a contempt action and whether we're bargaining in good faith or deliberately dragging our heels to perpetuate certain obligations. But rather now the Court can delegate it to a political process which could engender a compromise because everyone wants higher wages.
THE COURT: And you all need to caucus and let me know if there's any other evidence you want to present on that, and if you do, we'll hear it tomorrow.
MR. SEHAM: This suggestion is in our papers.
THE COURT: I don't remember that.
MR. SEHAM: Most of our papers are basically saying, to quote counsel Stevens, neener-neener, we don't agree with the Court in any of its conclusions. But at the end, we actually do something constructive which is, Judge, if we're going to lose, this is a way that we, instead of giving them something they never had under ALPA, restore to them what they argue they had under ALPA. And also --THE COURT: What brief is that in? I honestly don't remember it.
MR. MIDDLEBROOK: Your Honor, it's in the findings of fact and conclusions of law that we filed roughly two weeks ago.
MR. SEHAM: You can skip to the very end.
THE COURT: Fine. I had not thought about that. But let me just throw out two non-final and non-binding thoughts. Wouldn't that risk undercutting USAPA's legitimate position as the union, as the single collective bargaining agent? No one is challenging the validity of that.
MR. SEHAM: A lot less than ordering us what to bargain for. Because at least in that fashion we have the ability to go to our members, both East USAPA members and West USAPA members, and say if our constitution, in your view, or our proposal in your view does not sufficiently obtain the compromise that the Rice Committee and Blue Ribbon Committee and Wye River lockdown were seeking, then we'll return to that process which was arguably interrupted under the same political circumstances, and again, each -- both sides, to the extent anyone concludes that there is a monolithic East and a monolithic West, both sides have to be satisfied in their autonomous majority. I re-emphasize we would not be happy about it. But in terms of forcing us to a particular result, that would be far less intrusive and far less burdensome on the Court itself.
THE COURT: There is truth in your observation with avoiding intrusive judicial management. That's a fundamental principle of the courts of equity to not take on injunctive remedies that they lack the practical ability to monitor, to police and enforce. But on the other hand, if, in fact, the remedy were an injunction that says you have to negotiate for this Seniority List, I wonder whether that remedy might have the advantage of minimally intruding -- well, if that's -- if that's the legal right, it's not intruding at all. But minimally disrupting collateral aspects of the collective bargaining process because in the end, what it would mean is USAPA goes back to the table. There are all the other issues to negotiate. They do the best they can. They submit it to the members, and the members, as I see it, if the majority in the end are sufficiently distressed that they don't want have to a new single Collective Bargaining Agreement with the Court ordered list, then they can vote it down.
MR. SEHAM: How many votes do we have to take? If they vote it down once, is the injunction dissolved?
THE COURT: The power of the members to vote their self-interest does not empower them, in my view, to validate a DFR that is previously determined to be a DFR. So what it means is the members have to choose between what their representative has come up with the best deal but it's not going to come up with a different Seniority List. And if they reject it, the union can go back and negotiate for different and better terms, but it will not have a different Seniority List. So it would not disrupt and take advantage of the normal entitlement of the members to consider all of their self interest and make an up or down vote on the agreement. But they will be knowing that if they act out of an unregulatable disregard of the Court's determination of the union's obligation, the result is they are still at the lowest pay scale in the industry, they are foregoing what could have been obtained and they will know that whatever betterment could come from a new CBA is still not going to change that.
MR. SEHAM: The plaintiffs have already, I think, very strongly, if not explicitly, suggested that there would be some kind of contempt action because of dragging heels toward negotiations or because they have actually stated there are publications out there from one particular domicile that says we're all going to vote this down.
THE COURT: And, of course, it's premature for the Court to think what it would do if a contempt action were brought. But --
MR. SEHAM: Or whether a contempt action could be brought against members for voting.
THE COURT: I will repeat myself. One of the virtues of this approach is there wouldn't be any contempt action. The remedy would take advantage of the legitimate normal self interest, self interested perceptions of each member of the bargaining unit to decide, I will take this deal or no deal. And it really doesn't manipulate in any way the analysis of any voting member -- I guess only the union members get to vote, right?
MR. SEHAM: Correct.
THE COURT: It doesn't manipulate any perception of any other self interest. It simply carves out and neutralizes what, by hypothesis of this discussion, is determined to be a DFR. And it would free the Court from having to consider contempt if the collective bargaining representative makes the best judgment that they don't want to present a new proposal. And even though the TA permits it and the separate agreements are -- I guess one of them is amendable now. The other one will be soon. If they decide they remain with the status quo, isn't that the prerogative of the collective bargaining representative to do that?
MR. SEHAM: Yes. I agree. And the one caveat I would have is, if the Court -- maybe I'm halfway persuaded.
THE COURT: Don't be persuaded. I'm very self-consciously thinking out loud.

 

[hp_fa]

HP_FA,
Here is the appropriate portions of the transcript from that day.

Thanks. That is what I was referring to over the past few days. I can't take notes as fast as things are said, but that was indeed what I was basing my observations from when I posted them and then discussed them.

Thanks again.

 

[hp_fa]

I found the transcript. If you add just a bit more to what you already provided you can see even more of the Court's tentative thinking on this. This picks up right where your quoted text stopped.

MR. SEHAM: That's why I only said halfway.
But the concern we would have is -- perhaps the Court
has already addressed this -- that we not be in a situation of
if the union were either to choose or be perceived as choosing
a negotiating bath whereby separate operations would continue.
And when I say perceived, if it's alleged that now negotiations
are going more slowly, that there are only two meetings a month
or we have asked for too much money or too many benefits, are
there going to be requests from the plaintiffs for a contempt
hearing because we are not bargaining towards a single contract
fast enough.
THE COURT: Well, that's a good point everybody should
address, I suppose. Isn't the normal course, though, that the
airline, if it feels that the union is not -- what's the phrase
from the Railway Labor Act?
MR. SEHAM: Making every reasonable effort, Section 2
First.
THE COURT: They can go to the National Mediation Board to
seek assistance or coercion there, correct?
MR. SEHAM: That is correct. That's correct. And in
terms of evaluating good faith under Section 2 First, there are
two parties. You will see that in the Third Circuit Bensel
case, there are two parties, the company and the union. And
either one, and only either one, has standing under Section 2
First.
THE COURT: And the beauty of that is I would not be
involved. (Emphasis added by me.)
MR. SEHAM: And that would gratify us as well just
because we wouldn't want to put you out.

 

[fodase]

HP you forget that our side hasn't talked to the judge yet, if we win my mney is on an injunction making Nic the list.

 

[Megasnoop]

1) Agree completely. I believe that's pretty much the majority thought out east.

Flying with the “ageds,â€￾ I get a new sense of their commitment to the cause. At age 58 and faced with retirement at 60, yeah, their support wasnt so solid. But now that they can go to 65, its amazing how their attitudes have changed and their support increased. Theyre with us for the long haul.

A proposal from the company with a 25% raise for the East (plus work rules) would dredge up 600 easties with a brain to vote in a new contract with the West. There are plenty of captains who would vote for a raise because they want to make some money before retirement. Are you now promoting the fictitious LOA93 "unfreeze" as an actual plan for getting a raise? Unbelievable is right, lol. This plan is DOA if it goes to arbitration. Another year of LOA93 for those poor saps. I just don't really feel that you've thought this out at all. lol

Sorry, Elev, the “agedsâ€￾ can make another $1,000,000 (pay and bennies) that they werent counting on going 2 years ago. I fly with them. Theyre a solid 600 votes. Take the Jan 2010 pay raise and the $70M (which even the judge is admitting he cant touch) and you got better than the Kirby 25%. But even without the pay unfreeze, a $Mil is still a $Mil. Reread what EastUS wrote, hes spot on:

Unbelievable. Even if assuming that 25% would suffice, and that everyone who would then never see a left again would sign off on such fantasy as you offer here; What possible reason would any east person have to vote in a nic inclusive contract, before seeing how the LOA93 business works out? Add to that the permanent pay differential for seats...and...well...I just don't really feel that you've much thought this out at all.

Snoop

 

[cleardirect]

Sorry, Elev, the “agedsâ€￾ can make another $1,000,000 (pay and bennies) that they werent counting on going 2 years ago. I fly with them. Theyre a solid 600 votes. Take the Jan 2010 pay raise and the $70M (which even the judge is admitting he cant touch) and you got better than the Kirby 25%. But even without the pay unfreeze, a $Mil is still a $Mil. Reread what EastUS wrote, hes spot on:
Snoop

I guess I missed where the judge said he can't touch the 70M. Could you point that out?

The pay raise in 2010? Are you sure? The top guys might be a little upset if they wait for that raise but end up giving that away for nothing. They can't get that back. At what point does their family become more important then the guy sitting next to him?

 

[hp_fa]

HP you forget that our side hasn't talked to the judge yet, if we win my mney is on an injunction making Nic the list.

I haven't forgotten, however, as I said on Thurday, Seham had a point and the Court was paying attention.

 

[EastUS]

Flying with the “ageds,â€￾ I get a new sense of their commitment to the cause.

Indeed. I don't want to hit this bit too hard, but; it's also worth noting that a goodly number of very senior people have become pretty much polarized from the antics of the west (jumpseat abuse/"cute" stickers/epithets/etc) and have since acquired a bit of a gut response towards the west and the nic issue from those factors alone, that they may not have had nearly so much of earlier on. Over time...any people can eventually get fed up. I truly believe that ANY nic-inclusive contract would prove a very, very "tough sell" indeed.....

 

[Megasnoop]

Thanks. That is what I was referring to over the past few days. I can't take notes as fast as things are said, but that was indeed what I was basing my observations from when I posted them and then discussed them.

Thanks again.

hp_fa_, dont know or care who you are or what your legal background is, but missed the entire gist of the entire argument between both sides and the judge.

If the judge wants the trial to have been worth it's time, why would he not modify the TA to force the implementation of the Nic list immediately and unbundle it from the ratification of a joint contract? The merits of a joint contract can stand on their own and the arbitration award can be implemented in it's intended spirit.

The judge is smart enough to see the logjam ahead if he doesn't do this.

The judge is smart enough to know he cant touch the TA. It was between ALPA and the company. The company isnt a party to this suit and wont give up its rights under the RLA. But be careful for what you wish for. Nothing to stop the company from renegotiating with USAPA. That right is in the TA language itself. If you read the transcript for meaning, with an unbiased mind, its looking like the judge knows the limits of any injunctive relief he can apply, IF he rules for plaintiff and IF Appeals court doesnt overturn:

THE COURT: Mr. Stevens, it seemed to me that if the plaintiff prevails, the remedy is an injunction that orders the union to negotiate for the Nicolau Award. And I can't think of any other remedy. You had mentioned something about ordering -- something about foregoing a ratification vote. And I'm not sure what you are saying. If all you meant to say is that the Court should order that there be no specific individual ratification vote on the Seniority List, no one is contenting that there is any right to that. So I don't think the Court needs to say that. If you are contending that the Court should fashion some kind of injunction that allows the -- a final proposed CBA to be voted on somehow without addressing the Seniority List, I have two concerns that you will want to address.

No matter how many times I read that conversation between Seham, Harper, Middlebrook and the judge, I dont get a hint of Half Billion fines, taking away East $70M bonuses. What I get from the exchange is this entire trial might be an AOL bust. Worst case for East if AOL wins? West get to veto a TA if they dont like the wording. Id suggest every AOLer reread, over and over again, that exchange posted by usabusdriver. It says it all. Imagine the maneuvering going on this weekend, right now, even as I write this. Im hearing a big sigh of relief from USAPA, not that I ever thought thye had a big worry about fines or a union death sentence. The judge has outlined the worst-case scenario for US. Snoop

 

[EastUS]

I guess I missed where the judge said he can't touch the 70M. Could you point that out?

The pay raise in 2010? Are you sure? The top guys might be a little upset if they wait for that raise but end up giving that away for nothing. They can't get that back. At what point does their family become more important then the guy sitting next to him?

1) Not to worry Clear, since by now, most all out east fully understand that the west seeks to take everything possible from the east "fellow pilots", and that you'll try your very best to extend your arms as deeply as possible into the east's cookie jar at every level.

2) Am I getting the implications here correctly? = Vote for Nic now and hose the guy sitting next to you.... or you don't care about your family?

 

[hp_fa]

hp_fa_, dont know or care who you are or what your legal background is, but missed the entire gist of the entire argument between both sides and the judge.

Mind telling me anything specific that I missed and/or mischaracterized here?

 

[Megasnoop]

I guess I missed where the judge said he can't touch the 70M. Could you point that out?

This pretty much sums up any case for damages short of contempt violation of what may be an out-of-court settlement:

THE COURT: Mr. Stevens, it seemed to me that if the plaintiff prevails, the remedy is an injunction that orders the union to negotiate for the Nicolau Award. And I can't think of any other remedy.

The pay raise in 2010? Are you sure? The top guys might be a little upset if they wait for that raise but end up giving that away for nothing. They can't get that back. At what point does their family become more important then the guy sitting next to him?

Pay raise in 2010? Who knows? Or who cares? With a potential additional 5 years to work ($1M+/- a little), they dont need to get it back. I fly with these guys. They dont want a smart-mouthed 28-year-old know-it-all FO/IRO displacing a 21-year seniority, never been furloughed 50-year-old. Family is important. We have a family here back East. But if your talking about immediate family, that extra $1M (+/-) takes out the sting even if we lose the LOA-93 automatic pay raise and stay single for the next 5 or 10 years.

Your here-and-now mentatlists dont get it. Cant wait to hear the results of the ongoing negotiations. But take heart, if this ends in a settlement and you dont like the results, you can always opt out and start all over. Meanwhile, anyone correct me if my numbers are wrong, I believe we get additional 5 A330s and next year the count is 7 more.

Mind telling me anything specific that I missed and/or mischaracterized here?

TP, that comment was before you posted:

I haven't forgotten, however, as I said on Thurday, Seham had a point and the Court was paying attention

Dont be so touchy! Das Snooper