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US Pilots labor Discussion 12/4-
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BoeingBoy
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- Nov 9, 2003
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RR - "You did it to the Empire pilots, and benefited from it for 20 years. Good run for you personally Jim."
Amazing - You claim innocence for the US pilots in the Shuttle merger - ALPA did it, not us - but blame the PI pilots personally. Another situational standard takes root, as seems to the the norm east of the Mississippi...
Also, I thought USAPA's stance (as well as it's followers) was that seniority is subject to contract negotiation - the "like crew meals" thing. Yet the Empire and Shuttle guys seniority can't be changed??? Situational standard #3...
Jim
Amazing - You claim innocence for the US pilots in the Shuttle merger - ALPA did it, not us - but blame the PI pilots personally. Another situational standard takes root, as seems to the the norm east of the Mississippi...
Also, I thought USAPA's stance (as well as it's followers) was that seniority is subject to contract negotiation - the "like crew meals" thing. Yet the Empire and Shuttle guys seniority can't be changed??? Situational standard #3...
Jim
Sorry Reed, but the Nic prevailed the day it was accepted by the company. You had a three party agreement (East, West, Company) on how to integrate the list. That agreement was followed to conclusion. I understand you don't like the outcome, but the agreement was followed.
In order to amend that agreement, you have to get the original three parties together to all agree to change it. That can't be done now, USAPA has wiped out the separate East and West parties. That is why USAPA has a duty to represent the West pilots just the same as the old West MEC would have. Just because the East has majority votes, it doesn't mean you can ignore their rights. If you try to break the agreement, then you will be in violation of that Duty of Fair Representation Wait, you already have.
If the company would agree to your DOH list, then they would be in breach of that agreement also. That would then make them liable for any damages in the form of lost wages, etc. that the West pilots suffer because the company breached their agreement.
Probably the only chance you have of prevailing in the appeals court is on ripeness of the case. Even if you win that one, then you face a difficult problem. If you try to continue to negotiate a date of hire list, the company will never agree. Even if by some crazy circumstance they agreed, then you have breached your duty of fair representation, the case is ripe, and you will lose again.
I know you have a lawyer that tells you that this will all work out, but there is a reason that you had to shop around for a lawyer that will tell you what you want. His theory is loony and virtually no one else believes what he says.
No matter how many times you say "Gold Standard" that doesn't make it true. Go back into the history of airline mergers way back to the thirties and you will find many many cases that were not done by date of hire. Look at the recent history of airline mergers and most have not been date of hire. It is not recognized as the Gold Standard by anyone except your lawyers. Even if someone agrees it's the Gold Standard, it doesn't change the fact that you had a three party agreement on how to merge the list and USAPA has to represent the West pilots in that agreement the same as the West MEC would have.
The only hope there was to change the Nicolau award was to keep ALPA and continue to negotiate as three parties. Probably wouldn't have worked, but as soon as USAPA wiped out the old East and West, they had no choice but to accept the Nicolau award. Fairly ironic. You can delay, but never win.
Crzipilot said:
DCA (bigger fish in smaller pond, rather than CLT.) He wouldn't dare show up in PHL.
cleardirect
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- May 24, 2008
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Ooooo. More scary threats from east pilots.
Just why would someone NOT DARE show up in PHL? Because they would be physically assaulted. Verbally assaulted? Sounds like a hostile work environment to me. Perhaps someone would be charged with RICO by the trigger happy union just protecting the members. Maybe the company would take a dim view of less than professional behavior by so called professionals.
Maybe they would be intimidated by ignoring said pilot in the crew room. The shame of not having to talk to angry “good union pilotsâ€. I think most adults could handle that since this is not third grade anymore.
Don’t dare showing up in PHL give me a break.
Got me there Jazz. Help me out, I don't see any West pilots, much less the PHX or LAS bases on the results of the bid that closed here yesterday. Is that what you mean by "prevailed?"
RR
BoeingBoy
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I'm not positive, but I think they're referring to everyone's "favorite" East pilot...
Jim
cleardirect
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For all of you that are hanging your hat on ripeness. Document 593 Finding of facts and conclusion of law. This is what the judge had to say about ripeness. He spent several pages addressing ripeness take the time to read this document. It is on the usapa web site.
Case 2:08-cv-01633-NVW Document 593 Filed 07/17/2009 Page 43 of 53
4. Other Authority
USAPA has cited no precedential authority for dismissing a fair representation
claim on ripeness grounds. Indeed, USAPA has cited no federal appellate authority
discussing ripeness in the labor context. Perhaps such cases are scarce because the
typical inquiry in a fair representation suit is whether a union’s past action violated its
duty of fair representation—a question ripe by definition. Such was the inquiry in this
case, and so it does not raise paradigmatic ripeness concerns of record development or
temporal standing. Plaintiffs sought and obtained an adjudication of past and present
union action.
USAPA has repeatedly suggested that only the “final product of the bargaining
process†is subject to fair representation claims, citing Air Line Pilots Association v.
O’Neill, 499 U.S. 65, 78 (1991). [E.g., doc. # 36 at 13.] This phrase, carefully plucked
from its context, is too slender a reed to support such an elephantine proposition.
O’Neill’s statement that “the final product of the bargaining process may constitute
evidence of a breach of duty†was not directed at ripeness, but rather at the “arbitrarinessâ€
standard of reviewing union actions. Reuniting the phrase with the rest of the quoted
sentence makes its meaning clear: “[T]he final product of the bargaining process may
constitute evidence of a breach of duty only if it can be fairly characterized as so far
outside a ‘wide range of reasonableness,’ that it is wholly ‘irrational’ or ‘arbitrary.’†Id.
(citation omitted).
O’Neill did not concern the accrual of fair representation claims. It simply held
that the union’s duty of fair representation, including the arbitrary–discriminatory–bad
faith framework, “applies to all union activity, including contract negotiation.†Id. at 67;
see also Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 324, 329 (1969). Nothing in O’Neill
prevents the imposition of liability for negotiating activities prior to the conclusion of a
CBA. Rather, the case suggests that the liability may arise sooner because the agreement
is only considered as “evidence†of a breach rather than the breach itself. O’Neill’s
application of the duty of fair representation to “contract negotiation†underscores this
conclusion. 499 U.S. at 67.
It may be the rare case where a redressable fair representation claim accrues in the
midst of labor negotiations, which are usually dynamic and uncertain, but it happened
here. In USAPA’s hands, the Nicolau Award’s time of death has passed; only the time of
the funeral is uncertain. The Transition Agreement resolved the union’s internal seniority
conflict by way of the Nicolau Award, which USAPA wholly abandons solely to benefit
one group of pilots over another. Indeed, this particular breach of the duty implicates
both negotiation and administration of collective bargaining agreements. See id. at 77
(doubting that “that a bright line could be drawn between contract administration and
contract negotiation†in every case).
Another district court, considering a suit by a different set of pilots against
USAPA, has accepted USAPA’s ripeness argument. See Breeger v. USAPA, No. 08-CV-
490, 2009 WL 1328902, 2009 U.S. Dist. LEXIS 40489 (W.D.N.C. May 12, 2009). In
Breeger, certain East Pilots brought a fair representation suit against USAPA, alleging
that USAPA failed to meet a constitutional obligation to reshuffle East Pilot seniority
positions established by prior mergers. The district court adopted a Magistrate Judge’s
Report and Recommendation, dismissing the case in reliance on O’Neill as well as a
selection of unpublished federal decisions and state cases. The Report states, “The parties
have not cited, and the undersigned is unaware of, any published federal authority
addressing whether a union’s conduct may give rise to a ripe [fair representation] claim
prior to the conclusion of negotiations with the employer.†It does not address the context
of O’Neill’s “final product of the bargaining process†language. It makes no mention of
Ramey, which was not presented to the court in any brief. The holding of United
Independent Flight Officers, Inc. v. United Air Lines, Inc., cited in the Report, does not
preclude suit before a CBA was in place; that case recognized a fair representation claim
arising out of a union’s failure to reach agreement with the employer, noting that fair
representation suits may challenge both CBAs and “the negotiations leading to them.â€
756 F.2d 1262, 1273 (7th Cir. 1985). Nor is Federal Express Corp. v.Air Line Pilots
Association applicable here; that case denied declaratory judgment standing in the midst
of labor negotiations because there was no “reasonable apprehension of litigation.†67
F.3d 961, 964 (D.C. Cir. 1995). Although the Report does not specifically discuss
hardships or the fitness of the issues for judicial decision, the dismissal for lack of
ripeness may have reflected the shapelessness of the plaintiffs’ theory. The Breeger
plaintiffs sued to challenge the union’s working date-of-hire seniority proposal under a
broadly worded constitutional commitment to date-of-hire-seniority, with little more than
conclusory allegations of bad faith and discrimination. See Air Wisconsin, 909 F.2d at
215-19 (rejecting a similar challenge on the merits).
Nor does the reasoning of Brooks v. Air Line Pilots Association, International
compel dismissal. __ F. Supp. 2d __, 2009 WL 1883108, 2009 U.S. Dist. LEXIS 55210
(D.D.C. June 30, 2009). In that case, a fair representation claim was dismissed on
ripeness grounds because it challenged the position a union took in an administrative
grievance proceeding. The outcome of the grievance proceeding, and therefore the harm
to the pilots, was entirely contingent and discrete. Conversely, the West Pilots’ harm here
is not “fear that [USAPA] may succeed with its advocacy,†Brooks, 2009 WL 1883108, at
*3, 2009 U.S. Dist. LEXIS 55210, at *9. It is the present, concrete loss of fair
representation, a loss that is certain to continue, which will invalidate or preclude any
single collective bargaining agreement with the Airline.
Case 2:08-cv-01633-NVW Document 593 Filed 07/17/2009 Page 43 of 53
4. Other Authority
USAPA has cited no precedential authority for dismissing a fair representation
claim on ripeness grounds. Indeed, USAPA has cited no federal appellate authority
discussing ripeness in the labor context. Perhaps such cases are scarce because the
typical inquiry in a fair representation suit is whether a union’s past action violated its
duty of fair representation—a question ripe by definition. Such was the inquiry in this
case, and so it does not raise paradigmatic ripeness concerns of record development or
temporal standing. Plaintiffs sought and obtained an adjudication of past and present
union action.
USAPA has repeatedly suggested that only the “final product of the bargaining
process†is subject to fair representation claims, citing Air Line Pilots Association v.
O’Neill, 499 U.S. 65, 78 (1991). [E.g., doc. # 36 at 13.] This phrase, carefully plucked
from its context, is too slender a reed to support such an elephantine proposition.
O’Neill’s statement that “the final product of the bargaining process may constitute
evidence of a breach of duty†was not directed at ripeness, but rather at the “arbitrarinessâ€
standard of reviewing union actions. Reuniting the phrase with the rest of the quoted
sentence makes its meaning clear: “[T]he final product of the bargaining process may
constitute evidence of a breach of duty only if it can be fairly characterized as so far
outside a ‘wide range of reasonableness,’ that it is wholly ‘irrational’ or ‘arbitrary.’†Id.
(citation omitted).
O’Neill did not concern the accrual of fair representation claims. It simply held
that the union’s duty of fair representation, including the arbitrary–discriminatory–bad
faith framework, “applies to all union activity, including contract negotiation.†Id. at 67;
see also Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 324, 329 (1969). Nothing in O’Neill
prevents the imposition of liability for negotiating activities prior to the conclusion of a
CBA. Rather, the case suggests that the liability may arise sooner because the agreement
is only considered as “evidence†of a breach rather than the breach itself. O’Neill’s
application of the duty of fair representation to “contract negotiation†underscores this
conclusion. 499 U.S. at 67.
It may be the rare case where a redressable fair representation claim accrues in the
midst of labor negotiations, which are usually dynamic and uncertain, but it happened
here. In USAPA’s hands, the Nicolau Award’s time of death has passed; only the time of
the funeral is uncertain. The Transition Agreement resolved the union’s internal seniority
conflict by way of the Nicolau Award, which USAPA wholly abandons solely to benefit
one group of pilots over another. Indeed, this particular breach of the duty implicates
both negotiation and administration of collective bargaining agreements. See id. at 77
(doubting that “that a bright line could be drawn between contract administration and
contract negotiation†in every case).
Another district court, considering a suit by a different set of pilots against
USAPA, has accepted USAPA’s ripeness argument. See Breeger v. USAPA, No. 08-CV-
490, 2009 WL 1328902, 2009 U.S. Dist. LEXIS 40489 (W.D.N.C. May 12, 2009). In
Breeger, certain East Pilots brought a fair representation suit against USAPA, alleging
that USAPA failed to meet a constitutional obligation to reshuffle East Pilot seniority
positions established by prior mergers. The district court adopted a Magistrate Judge’s
Report and Recommendation, dismissing the case in reliance on O’Neill as well as a
selection of unpublished federal decisions and state cases. The Report states, “The parties
have not cited, and the undersigned is unaware of, any published federal authority
addressing whether a union’s conduct may give rise to a ripe [fair representation] claim
prior to the conclusion of negotiations with the employer.†It does not address the context
of O’Neill’s “final product of the bargaining process†language. It makes no mention of
Ramey, which was not presented to the court in any brief. The holding of United
Independent Flight Officers, Inc. v. United Air Lines, Inc., cited in the Report, does not
preclude suit before a CBA was in place; that case recognized a fair representation claim
arising out of a union’s failure to reach agreement with the employer, noting that fair
representation suits may challenge both CBAs and “the negotiations leading to them.â€
756 F.2d 1262, 1273 (7th Cir. 1985). Nor is Federal Express Corp. v.Air Line Pilots
Association applicable here; that case denied declaratory judgment standing in the midst
of labor negotiations because there was no “reasonable apprehension of litigation.†67
F.3d 961, 964 (D.C. Cir. 1995). Although the Report does not specifically discuss
hardships or the fitness of the issues for judicial decision, the dismissal for lack of
ripeness may have reflected the shapelessness of the plaintiffs’ theory. The Breeger
plaintiffs sued to challenge the union’s working date-of-hire seniority proposal under a
broadly worded constitutional commitment to date-of-hire-seniority, with little more than
conclusory allegations of bad faith and discrimination. See Air Wisconsin, 909 F.2d at
215-19 (rejecting a similar challenge on the merits).
Nor does the reasoning of Brooks v. Air Line Pilots Association, International
compel dismissal. __ F. Supp. 2d __, 2009 WL 1883108, 2009 U.S. Dist. LEXIS 55210
(D.D.C. June 30, 2009). In that case, a fair representation claim was dismissed on
ripeness grounds because it challenged the position a union took in an administrative
grievance proceeding. The outcome of the grievance proceeding, and therefore the harm
to the pilots, was entirely contingent and discrete. Conversely, the West Pilots’ harm here
is not “fear that [USAPA] may succeed with its advocacy,†Brooks, 2009 WL 1883108, at
*3, 2009 U.S. Dist. LEXIS 55210, at *9. It is the present, concrete loss of fair
representation, a loss that is certain to continue, which will invalidate or preclude any
single collective bargaining agreement with the Airline.
cleardirect
Veteran
- May 24, 2008
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I think you are right. I was not thinking of any specific pilot, mine was a general comment of threats to anyone going to PHL.
Oh THAT. From Judge Wake. What were we ever thinking? I will call my rep immediately and tell him to drop the appeal right now.
I am just not on my game today, I keep missing the fact everything is already decided by Judge Wake.
RR
cleardirect
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Well it looks like you got it now. Yes Judge Wake and a jury did decide. The ninth will simply review those decisions. Evidence that it has been decided. The injunction is in force. Usapa cannot even talk to the company about anything other than the Nicolau list.
My point of posting that was that is what a third party neutral federal judge said about ripeness. That usapa had sited no case. Compare that to a paid mercenary that has a bias to tell his client what they want to hear. What do you think is going to carry more weight with the court?
Don’t bother calling your rep they will not listen plus I am eagerly waiting for the ninth to finally put this case to an end.
Just a little math. Seham filed 5 issues with the court why Judge Wake made mistakes. 15 minutes to make your point. Three minutes per issue plus questions. Not a lot of time to make your points, I am afraid that the oral arguments are not going to move the court much. My bet Seham gets to about two maybe three issues
You really have no idea what/whom we are talking about. And the pilot in question isn't a member of USAPA, but I'll bet he paid up his germane fees with the first letter. And the reason he wouldn't show up in PHL has nothing to do with anything physical. The pilots in PHL just wouldn't put up with his incessant BS and would likely rub his written/verbal crap in his face. Fear of psychological humiliation at his own hand will keep him from PHL.
cleardirect
Veteran
- May 24, 2008
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I understand now pilots at US Airways can only expect to be protected from harassment after paying protection money to usapa. That non members are free game.
So this pilot that happens to hold an opposing view is not allowed to have that view and the pilots of PHL will not allow or welcome a fellow pilot to a base that he has the seniority or right to occupy. That maybe the other bases have a more welcoming attitude to pilots. Says a lot about some of the PHL pilots and the freedom of opinion on the east side. Explains the rumor of intimidation during the usapa card drive. That only the vocal opinion is allowed otherwise keep your mouth shut or fear the wrath of humiliation and intimidation.
CallawayGolf
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- Nov 13, 2009
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Ah but that has been the east strategy all along. Every day of delay is a "win" for the east as they define it. Fear of accepting the NIC will keep pilots at their current rate of pay until retirement. Oh wait, the east snap backs are right around the corner and all will be well again - LOL.
ClueByFour
Veteran
You do realize how loud the thunderous "I told you so" is going to be once the 9th affirms him, yeah?
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