USAPA Loses DFR Case!/US pilot thread

[Pi brat]

I believe that you are getting close to what I understand. As for the question I believe the tipping point may well have been when the West lost its right to having a West ratification that had been in the ALPA CBL and USAPA provided for one large vote. ALPA had provided the East and West groups to vote as groups and now that is gone.

Sorry, missed this post. Might be. Maybe the remedy could be to force USAPA to allow both groups to vote on a contract and both sides have to ratify. Then we could stay in this limbo forever.

 

[Freighterguynow]

The jury now understands the Easties were in full attack mode against the West and USAPA merely continued in that vein.

MR. SEHAM ......
what we're concerned about, and this
dovetails what we have seen as plaintiffs'
strategy, is this attempt to collectivize guilt and to blame
and find culpable the East Pilots for exercising their
political rights under the ALPA Merger Policy.
THE COURT: That's not what I had in mind.
MR. SEHAM: I'm sure it wasn't.
THE COURT: And as with everything, the way you articulated it now did sound pretty good

 

[N924PS]

I think that THAT is the gist of the USAPA case. Since the East and West didn't exist anymore, they were obligated to represent the ENTIRE group, and the DOH principle is a central theme in union matters.

Not in every case.

The Delta/NW arrbitration was not based on DOH, and they didn't throw ALPA off the property, even if many were unhappy with the result.

I have attempted to wade through the mind numbing transcripts available on the USAPA web site.
Based on what I have read, it seems either side has about the same chance of prevailing at the end.

The only winner will be the attorneys on both sides, with every word of transcript you can hear the money-meter go "ka-ching..."

 

[boeingplt]

ex717 wrote:

"Audacity of Hope.
He got my vote. (And yes, I know him personally.)"

Please tell me you voted for him only because you knew he couldn't win and wanted to make a statement. Did you actually watch his goat video? I don't see how anyone that saw the video could vote for that man, and I use that term loosely.

Anyone with a link to that video may want to consider posting it here in the interest of full disclosure. Differences aside, people should know what they are voting for.

 

[BoeingBoy]

Maybe the remedy could be to force USAPA to allow both groups to vote on a contract and both sides have to ratify.

It goes a little deeper than that, at least to my layman's reading. Although the jury instructions haven't been finalized yet, the case seems to have multiple prongs in the judge's mind.

1 - Was USAPA formed and elected as a way around the Nic award for the numerically superior East group?

2 - Was the USAPA structure set up to deny the West pilots a meaningful say in ratification of an integrated contract without the Nic award.

3 - Is the presence of an assumed impasse sufficient to allow USAPA to negotiate an integrated contract without the Nic award.

#1 & 2 go to the DFR in the formation/election of USAPA. When seeking to become the CBA USAPA tacitly agrees to take on certain responsibilities if elected, especially the DFR in this case.

#3 goes to whether USAPA can discard the Nic award in integrated contract negotiations without a vote. Case law and the judge say that individual pilots are entitled to vote their self-interest. However, is it a failure of the union's DFR to remove the pilot's right to vote on the integrated contract because an impasse may exist since the only way that an assumed impasse can cross the boundary into fact is for the pilots to vote. In other words, did USAPA breach it DFR by not putting out for a vote a tentative agreement containing the Nic Award which it inherited from ALPA.

If USAPA had been formed with West participation, was structured so that the West would have a meaningful voice (at least temporarily until an integrated contract was achieved), and had put the Kirby proposal including the Nic award out for a vote (assuming that it was complete enough to form a tentative agreement), there probably wouldn't be a case being heard in Phoenix.

At least to outside appearances, however, it seems that USAPA was formed and structured to allow the East to retain it's veto power on a combined contract via East's superior numbers while eliminating the West's veto power, and use the possibility of an East veto as justification for not attempting to negotiate a combined agreement containing the inherited Nic Award.

Jim

 

[nycbusdriver]

I think this thread has finally gotten me to understand USAPA's defense. I never got it and didn't think it would work(it may not).

Here’s what I’m thinking: It’s the west argument that it is the legal and/or moral duty for USAPA to use the Nic award going forward, as it was the result of an agreed up process and should be carried forward as any other part of the contract. Right? So, at what point does the failure to carry old parts of the contract forward constitute DFR? If we don’t carry forward the west’s sick leave provisions does that mean that we are guilty of failure to represent? Why is this so much more important than other changes that would be subject to a majority vote? In the early ‘90s the AAA gave away our duty rights in a new contract without membership ratification. That decision has affected every east pilot, from the most senior to the ones that were furloughed because of it. The MEC made the decision that it was in the best interest of the group as a whole, that it was worth it for the other contract changes. How is this different? Did I have a DFR suit? If the union doesn’t have the right to change the contract how come I have such a lousy one now. Is every change subject to a lawsuit?

USAPA says that it is only DFR when it done solely to disadvantage the other side. Is this correct? What is the tipping point? If it disadvantaged one west pilot is it the same.? The Nic award disadvantages many west pilots, just not the majority. Many think the top of the AWA list would be better of with DOH with fences, I had a senior west captain tell me he would. What's the difference?

Bingo! Well said!

It all boils down to whether a union can actually negotiate changers in a contract, or not. Judge Wake is treading on very thin ice if he takes that ability away from a labor union by "legislating from the bench" new parts for the RLA.

If the west wins this DFR, it will open the floodgates for every RLA-represented labor group to sue SUCCESSFULLY as a DFR for any perceived detrimental change to an existing contract. On what basis? Federal court precedent: Addington vs. USAPA.

It will certainly be interesting to see if Judge Wake is willing to rewrite the RLA, and then take the consequences EVEN if USAPA declines to appeal. The ramifications will be tremendous, and the NMB may very well take the matter to trial.

 

[nycbusdriver]

Seham was overruled frequently and I don't percieve this plays well to the jury, especially since it has been happening a lot. The more that the defense allows the Court to overrule them the more chance the jury rightfully gets to judge the credibility of both defense witnesses and their counsel.

My own thought is that you may be 100% incorrect in your assumption. Some of the jury may resent the fact that the judge is stifling information that they want to hear, and wonder about the judge's motives for doing so.

No matter what instructions the judge gives the jury, once they go in to deliberate they are in control of the facets of the trial that they are to decide. They can totally disregard anything the judge said. Our founding fathers were wise to give us trials by a "jury of our peers," rather than some political-appointee judge. (I'm not targeting Wake in that comment, but judges and trials in general.)

The unfortunate part of the process is that juries are generally not informed as to the power that they actually hold. They think they have to do as they are told, and the deck is stacked in favor of them never knowing the reverse is true.

A jury of one's peers is the last bastion of justice against an oppressive government. Would that more citizen jurors be aware of that sacred responsibility.

 

[BoeingBoy]

It all boils down to whether a union can actually negotiate changers in a contract, or not.

Not quite, as is pretty clear from the discussions during the meeting to discuss jury instructions. One of the questions isn't whether USAPA can negotiate a contract or not, but whether USAPA can use the assumption of an impasse to drop the inherited Nic award from the contract negotiations without having a vote on a contract proposal including Nic.

Jim

 

[Tiger 1050]

Bingo! Well said!

It all boils down to whether a union can actually negotiate changers in a contract, or not. Judge Wake is treading on very thin ice if he takes that ability away from a labor union by "legislating from the bench" new parts for the RLA.

Well let's say you are correct here. How does this line of thinking jive with say the NWA/DAL case where they had a contract BEFORE they knew what the list would look like. That effectively eliminates the rights of the pilots to vote regarding Section 22. If what you say is correct.

I believe the seniority list has already been decided as we both agreed to have a neutral third party decide for us since we couldn't do it ourselves. It is binding. I think should USAPA perform in it's DFR then there is in fact NO impasse.

I know some disagree with my assessment but this question Judge Wake is asking Seham sums up my point...

But what's -- how is it that if there is a duty of fair
representation to honor that agreement, then how could there
ever be an impasse?
I mean, an impasse would simply mean -- and -- and,
the documents clearly explicitly provide that the two
interested pilot groups do not have the right to ratify or
reject the arbitration award. That is as clear as day. And if
that's the premise, if that's the background, how could it be
in good faith for a majority to use their backup power to
ratify an entire CBA as a way to indirectly defeat their duty
to the minority to honor the agreed resolution of the Seniority
List?

 

[Pi brat]

Not quite, as is pretty clear from the discussions during the meeting to discuss jury instructions. One of the questions isn't whether USAPA can negotiate a contract or not, but whether USAPA can use the assumption of an impasse to drop the inherited Nic award from the contract negotiations without having a vote on a contract proposal including Nic.

Jim

Is it that or as you previously said, a separate vote? There will be a vote on the entire contract, when(if) we get a T/A.

I need to reread the day 1 transcript and I guess it will all be brought together in the closing arguments. I've been surprised at the amount of Nic and ALPA info. that has been presented.

I'm really surprised that this is a jury trial. It seems like a lot of this will be hard for a jury of folks off the street to take in over just a few weeks.

 

[john john]

Where in the transcripts did you read this..... a page number please....

This is what the West has been saying all along, at the roadshow, in correspondence etc. I would like to read where the Judge informs Seham.

So is the nic in your/there CAB

 

[john john]

ALPA was guilty of failing the West pilots.

Slap a DFR on them

 

[Barberpole]

.

I'm really surprised that this is a jury trial. It seems like a lot of this will be hard for a jury of folks off the street to take in over just a few weeks.

USAPA pushed really hard to make it a jury trial. Trial by jury is a constitutional right. They probably realized 99.99% of all judges would find them liable whereas there is always the chance that a jury will screw up the verdict.

 

[nic4us]

They are also arguing that, even though the Nic may be a short term gain for some, that over all it is a detriment, since it allows virtually ANY sort of seniority list occur for future mergers.

False arguement.

It would allow ANY sort of seniority list to occur that was reached through a mutually agreed upon, third party intervention. Which is by the way, now federal law.

Also, the Nic is a gain for the East. Plain and simple. It is a looooong term push for me personally.

DOH with C&R's as envisioned by USAPA is a short term, mid term, long term win for the East, throughtout the remainder of my career and for the next 20+ years. It is a plain rearranging of the list to benefit East at the West expense, so save the union principals arguement for fools stupid enough to believe in USAPA's false rightiouness.

 

[UtterlyUdder]

Slap a DFR on them

What I have a difficult time understanding is why seniority has anything to do with a DFR. How did the Nic award become the centerpiece of this trial?

As for DFR, below comes from an Eastern Airlines DFR.........and that was when the CAB still existed. The quote was the law on DFR at that time.

"To succeed [in a suit for violation of the duty of fair representation] under Sec. 301 [of the Labor Management Relations Act, 29 U.S.C. Sec. 185], an employee must show 'substantial evidence of fraud, deceitful action or dishonest conduct,' ... 'hostile discrimination,' ... arbitrariness or irrationality, ..., or conduct in bad faith...."

To those of you who know the current DFR law, is it different now than it was then? By the way, those suing lost that one.