USAPA Loses DFR Case!/US pilot thread

[oldiebutgoody]

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.

What is a "false argument"?

You obviously didn't read the transcript or you'd see what the argument is.

 

[nic4us]

The union feels that DOH serves the majority of pilots better than the Nic award. The question is "Is the seniority part of the contract more holy than any other so that it can't be changed?"

Yes and No.

The answere is no.

It is no more holy than others, just in this case it is how the union is failing the West in favor of the east.

The union feels DOH better serves the majority? Who gave the union the right to discriminate? The union might feel it better serves the majority to pay men more than women, well too bad. The union may feel it serves the majority to give more vacation to protestants over catholics, well too bad.

The union negotiates for the collective. They can negotiate changes to the CBA. However, they cannot fail to represent, or discriminate against a minority, just because doing so favors that same majority who benefits at the expense of the minority.

The answere is Yes.

"My seniority is not for sale"! really why not ? It seems vacation days and time off are. As are other work rules and crew meal etc. Why is it that seniority is so important. Perhaps it is because it is understood that it will not change and last thru a number of CBAs. It is understood to be permanent, carried forward with you, unless there is a major change, like a merger.

USAPA says, oh no seniority is negotiable any time, just like crew meals, you do not know what seniority you will have from CBA to CBA. It is all dependant on what the majority wants. There is no stability in your seniority, what is best for the majority ( in this case the east) is best for you. The majority will decide what is in your interest. The majority will decide what you deserve. The majority will decide your expectations.

I really do not care for John Prater but I have to paraphrase him. "What kind of union is formed on the basis of harming fellow members?" Well it would seem to be the kind of union now in control.

 

[nic4us]

What is a "false argument"?

You obviously didn't read the transcript or you'd see what the argument is.

The false arguement is that it would allow ANY sort of seniority integration in future mergers.

I have read most of the transcripts. I did think it was classy of Sully to ask Harper to thank his nephews for their service in war time, and that is where my support of Sully abruptly ends, along with any doubt as to how full of it USAPA is in this case.

 

[oldiebutgoody]

I guess I'd rather have a so called "false argument" than a stupid argument.

 

[Megasnoop]

I am not sure if the bench trial, at this point, is regarding damages or issues that the Judge decides as a matter of law. I am not making assumptions that he has pre-decided the case, but I do think he is leaning towards the plaintiffs based on the evidence that has been presented to him to this point.

You mean based on the evidence that he has ALLOWED to be presented. Yeah, little doubt how hes steering this. Regarding a "bench trial," Wake already gave away where hes going on that:

THE COURT: Actually let me restate what my
understanding's always been.
We're having the jury answer all questions that are
necessary for the legal relief, the damage relief, except one
that we're going to have to have a second jury for if it gets
that far.
The other issues that only go to the form or
appropriateness of equitable relief, that's not a jury trial
issue and I will try that to the bench. We'll pick up as soon
as the jury starts to deliberate. That's the way I laid it out
at the outset. I don't have any objection to advisory juries.
We don't have time to burden them with anything more than what
they have to say.

I hope he waits for a jury verdict before trying "that to the bench." (that was sarcasm)

Im sure the honorable judge already knows theres a lot of grounds for appeal. Thats what objections are all about. Wake is finally getting it as well, addressing Seham:

THE COURT: I want to have a trial that gives you a
chance to do what you want to do and I will figure out
what matters, and as I said, I want to have the jury
make the determinations that are most helpful not just
to me but to the Court of Appeals when they sort this
out afterwards.

Notice its not if the Court of Appeals gets to sort this out but when . Anyone think this will be over next week?

 

[oldiebutgoody]

Purely speculation on my part, but I believe when he says "equitable damages" he is referring to the injunction requested by the plaintiffs, and how it would be worded if they prevail. That is what the bench trial would be about.

 

[EastUS]

I've been on jury duty enough to know that you don't have a stinking clue what they are getting or not. I've never seen 9 people of the same opinion coming out of the courtroom. Takes time to form a consensus. Many times one person can persuade the whole bunch.

None of us will know until the verdict is read.

Agreed in full. I will find no verdict from any trial to ever be truly surprising again, having also had the duty of serving as a juror on several occasions. Either side may triumph in this and/or any other case. As an attorney acquaintance so well put it = "I've seen MAGIC come out of jury deliberations!" Any/all nonsensical claims of soothsaying abilities via statements of what any jury is "getting".."understanding"/etc..are just that = "innocent" nonsense. None can or will know until the verdict is delivered in any trial proceeding. I certainly wouldn't place heavy wagers on either side at this point.

To Hp-Fa: Thanks for all the well thought out postings per your observations in court.

 

[hp_fa]

I'd like your opinion on my other points about why seniority is different and at what point the majority does or does not matter. If one west pilot was better off with the Nic award and all the others were not, would USAPA have the duty to make sure it was never changed?

My opinion on this would it is a problem if it is a concerted effort to remove what, in this case, is an entire groups protections under what was agreed to as a final and binding arbitration award. There was plenty of evidence admitted before the jury regarding the actions of the East members and their East MEC and subsequently USAPA.

The East MEC eventually instructed its merger reps and negotiating reps to either negotiate Nicolau away and eventually to stop attending joint negotiating committee meeting. All of this was arguably contrary to the Transition Agreement.

USAPA ran against ALPA, in large part, because of the Nicolau Award. Although the Defendant provided testimony that there were other issues besides Nicolau, Defendant's own witnesses testified that Nicolau "was the straw that broke the camel's back." Prior to Nicolau there had been no effort to certify a replacement union to ALPA since the early 1990's, which stemmed from ALPA opposing the BA investment deal with US Air. Therefore, for over ten years there was no evidence of significant and tangible unhappiness with ALPA but for the Nicolau Award.

USAPA failed, going forward, to provide any protection to the West pilots in the form of one or more votes where West would be able to vote for a CBA and have, at least until the first successful CBA negotiated by USAPA, the ability to decline any contract(s) as a West group. In essence, West's veto power, which it held under ALPA, was gone due to the relative sizes of East and West.

That would be my personal opinion in response to your question.

 

[hp_fa]

My own thought is that you may be 100% incorrect in your assumption.

I have been 100% wrong more than once in my life, but my opinion stays the same. We'll see if I am right or wrong sometime after the jury starts deliberating.

 

[BoeingBoy]

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.

It's not an either/or. I mentioned what I understood to be a 3 pronged test for DFR in this case - was USAPA's formation merely a way around the Nic by virtue of East's voting power, was USAPA's structure a way around the Nic by depriving the West of it's "veto power", and can USAPA negotiate a contract without the Nic only on the basis of an assumed impasse (especially in the context of the 1st two prongs). It seems to me that USAPA has to pass all three of those tests and failure to pass any one is a DFR failure, although the final jury instructions haven't been agreed upon yet.

The later post, which you quoted part of, was only addressing that 3rd prong since that's what nycbusdriver mentioned in the post I was responding to - "It all boils down to whether a union can actually negotiate changers in a contract, or not."

As for the vote on a tentative agreement, that's the 2nd and 3rd prong I mentioned earlier - can USAPA refuse to negotiate a tentative agreement containing the Nic on the basis of an assumption that an impasse had been reached and that it was impossible for a contract to be ratified if it contained the Nic (test #3) and can USAPA deprive West of it's "veto power" while leaving the East "veto power" intact due to East's superior numbers when voting on a tentative agreement (test #2).

I'll fully admit that this is only my interpretation of the judges sentiments at this point and that the jury instructions may be completely different. It is obvious that Seeham would like the jury instructions to be different, even to the point of not comparing the Nic list with USAPA's DOH list.

Jim

 

[Pi brat]

It's not an either/or. I mentioned what I understood to be a 3 pronged test for DFR in this case - was USAPA's formation merely a way around the Nic by virtue of East's voting power, was USAPA's structure a way around the Nic by depriving the West of it's "veto power", and can USAPA negotiate a contract without the Nic only on the basis of an assumed impasse (especially in the context of the 1st two prongs). It seems to me that USAPA has to pass all three of those tests and failure to pass any one is a DFR failure, although the final jury instructions haven't been agreed upon yet.

The later post, which you quoted part of, was only addressing that 3rd prong since that's what nycbusdriver mentioned in the post I was responding to - "It all boils down to whether a union can actually negotiate changers in a contract, or not."

As for the vote on a tentative agreement, that's the 2nd and 3rd prong I mentioned earlier - can USAPA refuse to negotiate a tentative agreement containing the Nic on the basis of an assumption that an impasse had been reached and that it was impossible for a contract to be ratified if it contained the Nic (test #3) and can USAPA deprive West of it's "veto power" while leaving the East "veto power" intact due to East's superior numbers when voting on a tentative agreement (test #2).

I'll fully admit that this is only my interpretation of the judges sentiments at this point and that the jury instructions may be completely different. It is obvious that Seeham would like the jury instructions to be different, even to the point of not comparing the Nic list with USAPA's DOH list.

Jim

Thanks for you views. It will be interesting, never has been dull.

 

[hp_fa]

Trial - Day 7

Direct Examination of Randy Mowrey (Mr. Seham)

US Airways A-320 pilot based in PHL

25 years with US Airways

The East pilot group is older & more experienced

VP of USAPA

He explains the duties of VP

Was the Merger Committee chair, where he represented USAPA on seniority issues

Previously on the ALPA safety and merger committees

As the Merger Committee chair he is bound by the USAPA Constitution and By-Laws ("C&BL")

Sect. 8 of the Constitution deals with merger policy

That policy not modified since inception

He must consider the career expectations of West pilots

Discusses integrity and honor

Consideration on unmerged West expectations

As a rep he is ultimately responsible to the pilots

Failure to approve a contract = impasse

He has heard from all pilots, junior/senior, East/West

One can find fault with one part or another of the C&BL, but taken as a whole they are fair

West pilots complain it isn't Nicolau and East that the Conditions & Restrictions ("C&R") abandon DOH

Discussed e-mail from Gordon Davis where he complained of 10 year fences rather than 5 year fences

Ten year fence equals a distortion free list

Arbitration benefits would eventually flow to West

Job security is one aspect of his Merger Committee position

TA says the Company must use a minimum number aircraft and also contains a utilization requirement

Force majeure = a calamitous event, if it happened 5 East pilots would go below West (I think I heard that last part correctly)

Discussion of Dale Hawes (sp?) e-mail concerning gripe that West opposed pay parity, wide-body expectations and senioity issues

Pay parity issue arose in the Summer of '07

COURT asks in the East CBA is currently amenable

Hawes criticism was fairly accurate

Response to Hawes justified the 10-year fence

"West is at a huge disadvantage" contained in the response

East pilots threatened a DFR under the proposed C&R's

(Sidebar)

BPR = the supreme body of USAPA

Proposal submitted to the Company 9/30/08

Discussion of the presentation and attendees at the proposal submission

That meeting had questions of the C&R's

The proposal to the Company is subject to revision

Except for parts 1-2 of the seniority proposal the rest is designed to protect the West

Description of the PSA merger and the high seniority of the PSA pilots now

Discussion of the "Seniority Integration" proposal to the Company

The seniority list was certified as of January '07

C&R's to be effective on CBA signing

No plans to reduce the 10 year fence

West positions preserved as of 6/08 with a few exceptions

If a West pilot bids out of base he loses his protection and one protected position is removed from the base

COURT inquires about the term "bid in"

Discussion of fences, including one-way fences and porous fences and ability of East to bid West

West pilots can bid out of base

EMB 190 can be protected flying if operated from PHX or LAS

737's being phased-out

Protected positions of the 737 would flow to EMB 190

If West positions increase above the amount of protected flying East would share upgrades on a 1:1 basis

Discusses reduced flying, it's pain and how it would be shared

West captain attrition flows to West F/O's

Has a duty to protect the Weest pilots pre-merger expectations

C&R's structured to survive another merger

(Sidebar)

Discussion of how USAPA educates its members via the web and video

There was apathy in folks educating themselves

Doiscussion of the failure of ALPA re: pensions and LOA 93

Break

Cross-examination (Mr. Stevens)

Career expectations at the time of the merger

East had 1700 pilots on furlough

West had no furloughs

East not hiring, furloughing

Discusses "Career Expectations"

Furloughees expected to fly soon

Is familiar with the TA

Nicolau occurred under the TA & ALPA merger policy

Is not aware that the merger reps can bind members of the "flight deck crew" to agreements or arbitration

(He was given an exhibit to read that provided that merger reps can bind "flight deck crew")

Final & binding on merger reps

5/3/07 Nicolau award announced

12/20/07 Company accepts Nicolau

4/18/08 USAPA in as bargaining agent

5/08 He becomes a merger rep

6/10/08 Made a progress report to BPR on seniority issues

(Sidebar)

Rikk Salamant (sp?) brought recommendations from ALPA

Salamant testified in Nicolau arbitration

Did not refer to Nicolau in his position

Did not see where Nicolau had discussed East/West expectations

He was not instructed to ignore Nicolau

Nicolau put furloughed pilots on the bottom of the list

Before USAPA East and West both had a right to vote

Did not speak to organized West groups before the seniority proposal

He heard from individuals on jumpseats, etc.

The presentation meeting with the Company took less than an hour

Scott Peterson from Seham firm was there, Seham may have been

Approx 1/3 of East pilots on furlough at the time of the merger announcement

12/20/07 Parker acceptance of list

Mowrey said "That was the list to be used with that bargaining agent" (ALPA)

Approx 700-800 pilots moved up the list above AWA pilots at the time USAPA took control and some furloughed East pilots are now working and West pilots now furloughed

Describes Nicolau's - "static view of the airline is incorrect"

Lunch

Goal of USAPA was not to recover lost things

Pure DOH would offer no protections to the West

Discussion of 4/29/08 letter to Bradford

Discussion of using 6/1/08 vs. 5/25/05 snapshots re: protected positions

Discussion of catastrophic reductions

Ultimately his work will be judged by the pilots

Re-Direct (Mr. Seham)

Catastrophic event = force majeure

6/08 date for protection on seniority date

Discussion of furloughees

Discussion of DOH vs. LOH

6/08 furloughs, 300, 175 West 125 East

West furloughees can only be called back to West at present

Parties to Nicolau were the merger committee reps

Does not have the authority to deny member votes

No West member of USAPA in good standing ever volunteered to help the merger committee

No line-item ratification

Defense Rests

Plaintiffs Rest (No rebuttal stage)

Jury released until Tuesday

Discussion of jury instructions

Discussion of bench trial and injunctive relief re: Nicolau & status quo ante

Court recess until Friday at 9:00am

 

[Pi brat]

My opinion on this would it is a problem if it is a concerted effort to remove what, in this case, is an entire groups protections under what was agreed to as a final and binding arbitration award. There was plenty of evidence admitted before the jury regarding the actions of the East members and their East MEC and subsequently USAPA.

The East MEC eventually instructed its merger reps and negotiating reps to either negotiate Nicolau away and eventually to stop attending joint negotiating committee meeting. All of this was arguably contrary to the Transition Agreement.

USAPA ran against ALPA, in large part, because of the Nicolau Award. Although the Defendant provided testimony that there were other issues besides Nicolau, Defendant's own witnesses testified that Nicolau "was the straw that broke the camel's back." Prior to Nicolau there had been no effort to certify a replacement union to ALPA since the early 1990's, which stemmed from ALPA opposing the BA investment deal with US Air. Therefore, for over ten years there was no evidence of significant and tangible unhappiness with ALPA but for the Nicolau Award.

USAPA failed, going forward, to provide any protection to the West pilots in the form of one or more votes where West would be able to vote for a CBA and have, at least until the first successful CBA negotiated by USAPA, the ability to decline any contract(s) as a West group. In essence, West's veto power, which it held under ALPA, was gone due to the relative sizes of East and West.

That would be my personal opinion in response to your question.

Thanks for taking the time to answer and all the info you have passed along.

 

[BoeingBoy]

It will be interesting, never has been dull.

That's a factual statement if there ever has been one.

While I'm at it, megasnoop said "Notice its not if the Court of Appeals gets to sort this out but when . Anyone think this will be over next week?".

While it almost certainly true that it won't be over next week - filing the appeal and getting a response will probably take longer than that - one of the ways the Court of Appeals could "sort this out" is to deny an appeal. Not saying that they will, or even guessing as much, but it could be over quicker than some appear to be counting on.

Jim

 

[nic4us]

:wacko:
A little early to be drinking, isn't it?

As I normally respect your post, I will not counter with a long winded rant on why Nic is more than the east deserved, although I have heard every whining reason under the sun as why it is unfair that every single east pilot has moved up, just not enough to their liking, I will just say...

It is 5:00 somewhere!