US Pilots Labor Discussion 7/28- STAY ON TOPIC AND OBSERVE THE RULES

[A320 Driver]

Actually, we will not have to prove that it is "unfair". usapa will have to prove that it is "fair", done in "good faith", and is not "discriminatory". All three of which they failed in the Addington case. My point is that it does not only matter if it is "fair" or not. The reason usapa unilaterally decided to change the arbitrated award is the evidence of their breach of DFR.

BTW, the 9th did not say it does not have to be the Nic to be fair representation. The 9th said in effect, if usapa comes up with something other than the Nic, and the West is willing to go along with it, then usapa would not get sued again.

I'm no lawyer, but your statement doesn't sound correct to me. Seems to me you would have to prove your case to win it. That being said, I don't think it matters how USAPA stuctures the seniority award...somebodies gonna file a suit. Like someone else said, it only takes ONE.

As far as the 9th goes, they said it wasn't ripe. They didn't get into the merits or even Judge Wakes procedures, which I personally think were suspect, but, it is what it is.

Driver B)

 

[Metroyet]

I am not concerned about another DFR lawsuit. Anyone, all the way down to one, can file a DFR. What I am concerned about is the merits of any such lawsuit.

It is very much within the realm of possibility that the final list will not be the Nic - but it will be fair, equitable and non-discrimminatory, using a wide variety of accepted metrics, past practice and precedent. USAPA was not permitted to argue this in Judge Wake's courtroom. He decided that the Nic was not on trial.

The 9th Circuit - in their discussion, not their ruling - opened the possibility that in the next DFR, the Nic will be permitted to undergo considerably more scrutiny. Or - USAPA's alternative to the Nic will be allowed a full and thorough defense.

Okay. What's the defense then? How do you explain how only EAST pilots have decided what will be fair to WEST pilots? The fact that you're explaining this to a Judge, with a certified class opposing you, should be proof enough that it IS NOT FAIR right? Who is the Judge to determine the "fairness" of a seniority integration? That's what ARBITRATORS are for. It took Nic. Months to make his final and binding determination. There is only one source to refer to that was a product of mutually agreed upon processes. The Nic. That is a fact. "Majority" does not rule in this case. That should be more than Obvious by now. There is NO ONE to negotiate with anymore. Another fact. USAPA is fully painted into the corner. Now the company is throwing wrenches...which should have happened 3 years ago but why not bilk the East for several more years if that's what they want right?

Of course the Nic. wasn't on trial! It was a DFR case remember?! Nic CAN'T be on trial unless you can prove some kind of fraud...I think we can agree that it would be more than difficult for Seham to prove that...although I'm sure he's be happy to spend millions of union dollars in that pursuit as well.

 

[CallawayGolf]

IMHO, Mr. Nicolau has caused the delay in a contract.

Isn't this like saying that my congressman caused me to not pay my taxes (hypothetically) because I didn't like his vote? Nicolau didn’t cause a delay and he didn’t cause USAPA to pursue discriminatory practices against the West, he was simply asked to make a legally-binding arbitration between two groups who couldn’t find a mutually-agreeable compromise position on their own. What the East pilots have collectively done with the ruling is entirely on them. – shameful as those actions may be.

 

[hp_fa]

As far as the 9th goes, they said it wasn't ripe. They didn't get into the merits or even Judge Wakes procedures, which I personally think were suspect, but, it is what it is.

You got a +1 for that whole post.

 

[CallawayGolf]

I'm no lawyer, but your statement doesn't sound correct to me. Seems to me you would have to prove your case to win it. That being said, I don't think it matters how USAPA stuctures the seniority award...somebodies gonna file a suit. Like someone else said, it only takes ONE.

Driver B)

Hypothetically, there would be an enormous difference between an East pilot trying to bring a DFR claim against USAPA FOR implementing the NIC in comparison to a West pilot bringing a DFR claim against the same for NOT using the NIC. How far in the process do you suppose an East pilot would get with their pursuit? I would guess not very far at all since the union would be using the exact seniority system that all three parties agreed to abide by via the arbitration process. Sure anyone can bring a DFR claim, but very few of those cases have merit. The West claim has merit; an East pilot claim against using the NIC would not.

 

[88 B.T.D.]

Okay. What's the defense then? How do you explain how only EAST pilots have decided what will be fair to WEST pilots? ..................................There is NO ONE to negotiate with anymore. Another fact.

Ask your BPR to nominate you for the Merger comittee. There was an open invitation for West input on the comittee (in writing) prior to the conditions being formed the first time. This was brought up in the Wake trial.

 

[nic4us]

I'm no lawyer, but your statement doesn't sound correct to me. Seems to me you would have to prove your case to win it. That being said, I don't think it matters how USAPA stuctures the seniority award...somebodies gonna file a suit. Like someone else said, it only takes ONE.

As far as the 9th goes, they said it wasn't ripe. They didn't get into the merits or even Judge Wakes procedures, which I personally think were suspect, but, it is what it is.

Driver B)

Yes, the West would have the burden of proof.

What I was trying to say, and what usapa would have to defend against, is not the West proving that a DOH contract was "unfair". Only that usapa bargained in bad faith, and discriminated against the West by changing an already "fair" arbitrated award to something that favored east pilots at the West pilots expense. We already done it once, and still have all the smoking guns.

 

[Piedmont1984]

Okay. What's the defense then? How do you explain how only EAST pilots have decided what will be fair to WEST pilots? The fact that you're explaining this to a Judge, with a certified class opposing you, should be proof enough that it IS NOT FAIR right? Who is the Judge to determine the "fairness" of a seniority integration? That's what ARBITRATORS are for. It took Nic. Months to make his final and binding determination. There is only one source to refer to that was a product of mutually agreed upon processes. The Nic. That is a fact. "Majority" does not rule in this case. That should be more than Obvious by now. There is NO ONE to negotiate with anymore. Another fact. USAPA is fully painted into the corner. Now the company is throwing wrenches...which should have happened 3 years ago but why not bilk the East for several more years if that's what they want right?

Of course the Nic. wasn't on trial! It was a DFR case remember?! Nic CAN'T be on trial unless you can prove some kind of fraud...I think we can agree that it would be more than difficult for Seham to prove that...although I'm sure he's be happy to spend millions of union dollars in that pursuit as well.

The process which was agreed to by the parties ....was.....never.....completed.

When USAPA submits a list which is not the Nic, the west will file a lawsuit claiming it is not fair - rather than it is not the Nic. Because of the 9th Circuit language, the door has been opened for USAPA to submit a non-Nicolau list. The Nic list, specifically, has been rendered irrelevant. This will be reinforced if the company is granted immunity in their request for declaratory judgement.

The west will argue that the new list is unfair and discriminatory. The east will argue otherwise. In order to for each side to make a full and thorough argument, the fairness question, fairness of the Nic as compared to other acceptable forms of integration - will also...finally ...become "ripe".

 

[nic4us]

There was an open invitation for West input on the comittee (in writing) prior to the conditions being formed the first time. This was brought up in the Wake trial.

Yes, and if I recall correctly, all the West pilots who volunteered to that committee were dismissed and none were accepted.

I believe we have that in writing.

 

[Piedmont1984]

Hypothetically, there would be an enormous difference between an East pilot trying to bring a DFR claim against USAPA FOR implementing the NIC in comparison to a West pilot bringing a DFR claim against the same for NOT using the NIC. How far in the process do you suppose an East pilot would get with their pursuit? I would guess not very far at all since the union would be using the exact seniority system that all three parties agreed to abide by via the arbitration process. Sure anyone can bring a DFR claim, but very few of those cases have merit. The West claim has merit; an East pilot claim against using the NIC would not.

What about the pilots who were not in good standing under ALPA? What about those who were still on furlough and did not have a say or were not party to the process? I would think they have a valid DFR claim if USAPA violates it's own C&BL's.

 

[nic4us]

The process which was agreed to by the parties ....was.....never.....completed.

When USAPA submits a list which is not the Nic, the west will file a lawsuit claiming it is not fair - rather than it is not the Nic. Because of the 9th Circuit language, the door has been opened for USAPA to submit a non-Nicolau list. The Nic list, specifically, has been rendered irrelevant. This will be reinforced if the company is granted immunity in their request for declaratory judgement.

The west will argue that the new list is unfair and discriminatory. The east will argue otherwise. In order to for each side to make a full and thorough argument, the fairness question, fairness of the Nic as compared to other acceptable forms of integration - will also...finally ...become "ripe".

The process detailed for seniority integration most certainly was completed. Punctuated by the company's "acceptance" of the Nic. Section 22 was done, finished, completed, signed, sealed, delivered, and the company paid each MEC $300,000 as stipulated in the TA.

There will be no future arguing in court over whether the Nic is "fair" or DOH is "unfair".

We are argueing over a moot point, because usapa is never going to submit a seniority list other than the Nicolau award. They will never get that far with the company or the courts.

So the majority can either toss usapa to the curb or keep them, your choice. But if you decide to ditch usapa, remember that the contractual obligations usapa inherited will be inherited by any successor union.

 

[luvn737s]

Ask your BPR to nominate you for the Merger comittee. There was an open invitation for West input on the comittee (in writing) prior to the conditions being formed the first time. This was brought up in the Wake trial.

Yes, I believe R. Mowery was asked how many west pilos he spoke to during the crafting of the Conditions and Restrictions.

His answer?

ONE.

 

[CallawayGolf]

What about the pilots who were not in good standing under ALPA? What about those who were still on furlough and did not have a say or were not party to the process? I would think they have a valid DFR claim if USAPA violates it's own C&BL's.

An individual, MIG or otherwise, does not have a valid DFR claim simply because he wasn’t a part of (or in agreement with) the process that was used to develop the seniority rules. Agreement from all who are or may be represented by the CBA isn’t germane to the DFR question; what is germane is the question of whether or not the CBA is meeting its statutory obligation to represent all classes according to a fair and non-discriminatory process. The NIC certainly falls within the “wide range of reasonableness” that governs the process so USAPA would be free t implement the list without fear of a DFR claim.

The West claim of a DFR for USAPA abandoning the NIC is valid because the integrated seniority list was developed by an arbitration panel as was agreed to in the TA. The subsequent abandonment is intended to overtly advantage the east pilot group by taking seniority positions not granted to them by the arbitrated list from the West pilot group. That course of action has DFR written all over it. An East pilot can make no such claim against the NIC should USAPA capitulate and accept the unmodified NIC in their final CBA negotiations.

 

[nic4us]

I still can't believe there are those on the east who can't clearly understand this. They still don't see that the 9th only said that if USAPA comes up with something the west doesn't sue over, then there is no harm. That certainly doesn't give a green light to DOH since the measure of whether or not to sue and if the west will win (as they did before) is still the Nic, since Nic was never on trial. I believe they didn't want to address that thorny issue, right? And again, USAPA is able to step away from Nic just as ALPA could, which is to say only with west concurrence.

In the mean time they all continue to suffer under LOA 93 indefinitely. There must be alot of dissension in the ranks at the years this has dragged on with no improvement. My guess is that if the pay restoration thing doesn't bear fruit by the end of the year, USAPA is done for good and something very close to Nic with a decent contract will be in shortly thereafter.

There are those on the east that do not understand it, because they rely on Seham's misinterpretation, Cleary's false understanding, and Theur's complete bs communications of the mistruths.

What I cannot believe is that there are still east pilots who do not question the three blind mice.

You are probably right, when the loa93 grievance tanks, the company tell usapa to pound sand with their DOH pipe dream, and even better yet, Wake is upheld by the SCOTUS, or vacates the 9ths mandate, if these same pilots do not show Seham the door, then they deserve to have to pay the damages heading their way.

 

[A320 Driver]

The process which was agreed to by the parties ....was.....never.....completed.

When USAPA submits a list which is not the Nic, the west will file a lawsuit claiming it is not fair - rather than it is not the Nic. Because of the 9th Circuit language, the door has been opened for USAPA to submit a non-Nicolau list. The Nic list, specifically, has been rendered irrelevant. This will be reinforced if the company is granted immunity in their request for declaratory judgment.

The west will argue that the new list is unfair and discriminatory. The east will argue otherwise. In order to for each side to make a full and thorough argument, the fairness question, fairness of the Nic as compared to other acceptable forms of integration - will also...finally ...become "ripe".

Judge Wake would not allow the fairness argument into the proceedings. I can't help but wonder what impact the 9th ruling will have on that issue. Also, since the 9th did crack open the door on other methods of seniority integration (and the probable consequences), won't a ratified contract be required to show harm? Two judges said NO, but they both got overruled.


Driver B)