US Pilots Labor Thread 3/4-3/11-READ THE FIRST POST

[Richard]

Having closed last week's thread, I find it necessary to remind you all that making comments/insults/attacks on other posters will not be tolerated on these boards.

You may discuss the posts all you want, however, you may not comment on the posters themselves.

While we understand that this is a polarizing issue with passionate feelings on both sides, the rules of the board are specific: NO PERSONAL ATTACKS/COMMENTS/INSULTS.

There will be no further warnings. Offending posts will be deleted in their entirety and the corresponding action will be taken--which may include suspension, indefinite moderator preview, and termination of accounts.

With all due respect, some of your comments do a disservice to your profession and your respective causes....so PLEASE think before you post.

Thank you.

 

[cleardirect]

Curious.

USAPA has known about this trial date since about 16:00 PHX local. AOL got an update out. The west pilots know about this case. On a joint web site the information was posted.

Where is USAPA? Where is their update informing all of the members. This is the organization with all of the talent, resources, and money. They can’t put out a simple update and post the document in a timely fashion?

 

[sharktooth]

USAPA has known about this trial date since about 16:00 PHX local. AOL got an update out. The west pilots know about this case. On a joint web site the information was posted.

Usually, things of this nature are relayed from an outpost to civilization by elected representatives stationed in such remote areas.

Perhaps, following a chain of command, you should talk to your "representative(s)", should you not? Then, if (s)he can present evidence that, within reason, (s)he passed such information onto CLT, then, and only then, might you have a wisp of a complaint, a complaint against the apparent incompetence of your own, constitutionally, elected representative(s).

You DO have at least one, legally elected, rep., don't you? If so, has she/he not had at least 36 hours to establish communications with USAPA central and her/his associated peers? I presume (s)he has not posted information to her/his highly inaccurate website, yet? Perhaps the PHX pilots should reconsider who they voted for, who seems a little slow on the draw, apparently.

 

[Piedmont1984]

Does Judge Wake have the legal latitude to impose a solution or instruct the parties to engage in a process of his own liking which is neither DOH or the NIC?

Or is he compelled to limit his judgement to the strict confines of documents already filed?

I guess what I am asking is, will the decision rendered be limited to a yes/no USAPA did/did not violate it's duty of fair representation to the west? Or does he have the latitude to be more creative?

I expect and fear that a more limited judgement will only lead to appeals, while a more creative one may nip a long and expensive appeal process in the bud.

 

[cleardirect]

Does Judge Wake have the legal latitude to impose a solution or instruct the parties to engage in a process of his own liking which is neither DOH or the NIC?

Or is he compelled to limit his judgement to the strict confines of documents already filed?

I guess what I am asking is, will the decision rendered be limited to a yes/no USAPA did/did not violate it's duty of fair representation to the west? Or does he have the latitude to be more creative?

I expect and fear that a more limited judgement will only lead to appeals, while a more creative one may nip a long and expensive appeal process in the bud.

The jury will be ruling on the liability issue. If USAPA failed in it’s duty to represent the west fairly.

Yes the judge/jury has latitude on some of the remedies. Changing or forcing negotiations of the Nicolau I don’t believe is one of them. What the Nicolau says or how it was arrived at is not the issue. What USAPA did after they were certified is.

If USAPA is found responsible, that is when it can get creative. How does the jury or the judge require USAPA to implement the Nicolau list as is.

If USAPA is not found responsible there is still the part about dues and damages. Then usapa has to convince the company to accept their list and drop binding arbitration.

Expect an appeal no matter what. But just because one side does not like the outcome is not grounds for appeal. There must be a legal reason. Even with the appeal the remedy goes forward.

If anyone is looking for a convoluted, split the baby, make everyone a little happy, a little unhappy. No that is not going to happen. Either USAPA failed or not. If they failed and tried to avoid their duty to implement the Nicolau. Then that is the list. We will not be redoing the arbitration again.

 

[hp_fa]

I guess what I am asking is, will the decision rendered be limited to a yes/no USAPA did/did not violate it's duty of fair representation to the west? Or does he have the latitude to be more creative?

I don't have the tools at hand to give you a comprehensive answer. However the judge has discretion regarding remedies and since part of the lawsuit sounds in equity, the judge appears to have wide latitude in fashioning a remedy. I once asked a somewhat similar question and the answer was a question back to me. "What can an 800 pound gorilla do?" The answer is "[a]nything it wants."

In addition to having discretion concerning a remedy, the judge has the ability to direct a verdict or enter a judgment regardless of the verdict. Generally what a directed verdict means is that at the close of each sides case the oppossing side will make a motion for a directed verdict on the grounds that there is no possible dispute in the interpretation of the facts presented in support of a party's case-in-chief. That means that after a plaintiff has rested their direct phase of testimony a defendant will move for a directed verdict. It is usually either denied or deferred. After the defendants case the plaintiff will often make the same motion. The motion can be made at any time before submission to a jury.

If a matter is submitted to a jury and the verdict returned is in some way unconscionable to the judge, the judge may enter a judgment notwithstanding the verdict. A motion for such a judgment is made within ten (judicial) days of the entry of judgment. Often a motion for a new trial will also be filed if there were irregularities during trial. A large part of all of this involves making a record for appeal so that the issues are contested in the trial court because appellate courts will not entertain issues that were not brought before the trial court.

Your question was actually quite good. Since I don't readily have the tools available to do significant legal research based on current applicable federal case law I need to stay to a general answer for now. If you want a quick look at the actual rules I was referring to you may see the rule here. (I assume the text of the rule is current but make no representation that it actually is. The case law regarding the rule is always changing as case law constantly evolves.)

 

[Piedmont1984]

Thanks HP. Seems to me the judge is confronted with somewhat of a dilemma.

Assuming that the ALPA arbitration process and the Nic award is final and binding; a year later another event takes place, the USAPA election. This event also followed a legal process and is itself "final and binding". With a new union comes the inherent right to craft a constitution and bylaws, which yet again is in certain ways "final and binding".

So you have a series of events, all legal in their own right, separated chronologically, but which are incompatible with each other.

Very interesting legal dilemma. Could be that splitting the baby, which Clear dismisses, may in fact be the only realistic remedy to this stalemate.

 

[Tiger 1050]

Thanks HP. Seems to me the judge is confronted with somewhat of a dilemma.

Assuming that the ALPA arbitration process and the Nic award is final and binding; a year later another event takes place, the USAPA election. This event also followed a legal process and is itself "final and binding". With a new union comes the inherent right to craft a constitution and bylaws, which yet again is in certain ways "final and binding".

Obviously HP or Clear could better articulate the details of this situation. However, in my ignorant opinion, I would assume that USAPA cannot escape it's responsibility simply by writing a C&BL's that subvert past binding agreements. Especially after the fact... Isn't this the very argument before the court?

 

[cleardirect]

Thanks HP. Seems to me the judge is confronted with somewhat of a dilemma.

Assuming that the ALPA arbitration process and the Nic award is final and binding; a year later another event takes place, the USAPA election. This event also followed a legal process and is itself "final and binding". With a new union comes the inherent right to craft a constitution and bylaws, which yet again is in certain ways "final and binding".

So you have a series of events, all legal in their own right, separated chronologically, but which are incompatible with each other.

Very interesting legal dilemma. Could be that splitting the baby, which Clear dismisses, may in fact be the only realistic remedy to this stalemate.

This judge is not a mediator or arbitrator. This judge and jury are there is determine right/wrong, responsible/not responsible. So no I do not believe that he is there to determine “fairnessâ€￾ or to “split the babyâ€￾. If USAPA is found to be responsible then the Nicolau is confirmed. Any changes or “splittingâ€￾ is changing and negating binding arbitration. The stalemate will be broken when the jury gives it’s verdict.

USAPA was certified as the bargaining agent. With that came all of the prior commitments. Including the T/A and contracts. USAPA’s C&BL really have very little effect on prior contracts or this case. Do you think that just because USAPA put in their C&BL that the pay rates would be $250. per hour means anything? Just because USAPA put DOH in their C&BL does not over ride or negate prior commitments inherited.
.
If the west prevails it will be the Nicolau. The latitude will come in HOW the list is implemented. If the judge sets a time line for implementation. Maybe impose fines for any delay. Maybe he removes the joint contract provision from the T/A and the list becomes active immediately. That is going to be the resolution. Not some mid point between DOH and the Nicolau.

 

[Piedmont1984]

This judge is not a mediator or arbitrator. This judge and jury are there is determine right/wrong, responsible/not responsible. So no I do not believe that he is there to determine “fairnessâ€￾ or to “split the babyâ€￾. If USAPA is found to be responsible then the Nicolau is confirmed. Any changes or “splittingâ€￾ is changing and negating binding arbitration. The stalemate will be broken when the jury gives it’s verdict.

USAPA was certified as the bargaining agent. With that came all of the prior commitments. Including the T/A and contracts. USAPA’s C&BL really have very little effect on prior contracts or this case. Do you think that just because USAPA put in their C&BL that the pay rates would be $250. per hour means anything? Just because USAPA put DOH in their C&BL does not over ride or negate prior commitments inherited.
.
If the west prevails it will be the Nicolau. The latitude will come in HOW the list is implemented. If the judge sets a time line for implementation. Maybe impose fines for any delay. Maybe he removes the joint contract provision from the T/A and the list becomes active immediately. That is going to be the resolution. Not some mid point between DOH and the Nicolau.

If that is the case then sadly, April 28th will only be the end of the beginning.

Your comment "with that came all the prior commitments", seems to me the central question. I would argue that this particular "committment" was deemd so unacceptable by the rank and file that they removed the previous CBA before the committment was fully implemented. The process was interrupted. The committment was not fully consumated. IOW, there was no committment in the legal context.

It was also a process which we, east and west, had no control over. So the assumption that we entered into it voluntarily is also being scrutinized.

I hold out some little hope that the judge has the wisdom of Solomon.

 

[Tiger 1050]

deleted

I misread 1984's post. My apologies...

 

[hp_fa]

Your comment "with that came all the prior commitments", seems to me the central question. I would argue that this particular "committment" was deemd so unacceptable by the rank and file that they removed the previous CBA before the committment was fully implemented. The process was interrupted. The committment was not fully consumated. IOW, there was no committment.

Here is where I differ. Based on what I know as an outsider, it appears to me that the process was not really interrupted. It continued through binding arbitration and an award was made. Has the process not gotten to an award being made in a binding arbitration I would agree with what you wrote, specifically that the process was interrupted. Here is an analogy that describes how I view what seems to have happened. Someone makes an offer on a house that is accepted. That person meets all their contractual obligations and goes to closing to sign all the documents and does so. After the closing the lender has cold feet and stops payment on the closing checks. The party buying the house signed the papers but the party selling never got their funds. Who is the owner of the house? Who has the rights to the house? (This is just an illustration and not a fact pattern likely to happen. It is a fast illustration only.)

 

[souperfly]

Round and round we go...every day, all day....same posturing from both sides. It should be painfully obvious by now that neither side will persuade the other. I would say that USAPA inherited the "active" documents...East contract, West contract, and TA...ALL of which can be (re)negotiated and/or modified by the TWO...(read 2) parties to the agreements: the company/ the union. There is video of a west crew news wherein AH responded to a pilot that , yes, USAPA could negotiate/renegotiate terms of the TA or any document at any time. This was is response to a fleet question by said pilot. I would refer all back to Jeff Freunds comment about the Nic being a "bargaining position" which the company was not compelled to accept, just like any other "bargaining position".(paraphrasing)
That said, since the Nic was never an "active" document via a properly executed single contract, it remains exactly as it was: an ALPA derived/arbitrated "position" suggesting seniority. I'd again argue that it is well within USAPA's authority to (re) negotiate that document with the company as inclusion in any joint contract...just like they can modify the TA right now.

And for Cleared, based on your supposition about USAPA's "guilt"...the Nic is in stone?...I thought you all claimed the Nic was not on trial here...you certainly are segwaying the two rather closely now...no?
(Wipe the drool off your chin, you ain't there yet.)

And before you guys start the violin which only plays the tune "final and binding" about the Nic...do you suggest that the west contract was not "final and binding"?..or the East one?...if the company suggests that these agreements are subject to being negotiated even today, then tell me how the "final and binding" song by St. Nic differs from the 'final and binding song by St. West ALPA MEC in their contract.

 

[Piedmont1984]

Here is where I differ. Based on what I know as an outsider, it appears to me that the process was not really interrupted. It continued through binding arbitration and an award was made. Has the process not gotten to an award being made in a binding arbitration I would agree with what you wrote, specifically that the process was interrupted. Here is an analogy that describes how I view what seems to have happened. Someone makes an offer on a house that is accepted. That person meets all their contractual obligations and goes to closing to sign all the documents and does so. After the closing the lender has cold feet and stops payment on the closing checks. The party buying the house signed the papers but the party selling never got their funds. Who is the owner of the house? Who has the rights to the house? (This is just an illustration and not a fact pattern likely to happen. It is a fast illustration only.)

But in our case a "signing at closing" requires more than just an award. There is also contract ratification with said award incorporated into the contract. Two pillars required to complete the process.

Put another way, the process is complete only when a contract has been inked, ratified and implemented with the Nic award intact.

Now this may strike legal scholars and purists as nothing more than a loophole. But we have a long tradition of acknowledging legal loopholes in this country.

Souperfly

That is why we need an adult to break up this logjam in the legal venue. Someone to short circuit what threatens to be another 3 or 4 years of appeals, counter appeals and mucho dinero.

 

[BoeingBoy]

Put another way, the process is complete only when a contract has been inked, ratified and implemented with the Nic award intact.

The transition process is complete when the single contract is ratified. There were three separate and independent steps that had to be accomplished before integrated operations could be conducted.

1 - Single ops certificate
2 - Single seniority list
3 - Single contract

It mattered not which was completed first or the order of completion, as long as all were completed. It could have been seniority first, ops cert second, contract third, or any other order. As of today, two of the three steps have been completed - SOC and seniority list.

The question before the court is whether or not the majority can circumvent the completed seniority integration by changing CBA's without that CBA being in violation of it's DFR responsibilities.

Jim