ALPA DCA Reps. Update on Today's MEC Meeting
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aquagreen73s
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- Aug 22, 2005
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Pilot,
Yes, they can be appealed but only under extremely narrow and defined circumstances. There are two avenues for your appeal. The federal courts will only hear matter which are ripe. That means you have to exhaust all administrative appeals before you can go to the federal court house. Therefore, you start first in the administrative process, and then try your luck on the steps of the federal courthouse.
When a party submits to arbitration, they are knowingly and voluntarily subjecting themselves to an administrative process enacted by Congress and enforced by the Executive Branch. Parties rights and obligations are plainly spelled out in the U.S. code provisions. I don't have the benefit of the relevant code sections in front of me, but I do remember enough about it to know that the grounds for appeal are extremely narrow. I recall that most actions are procedurally related. The appellate board can then look at the record and see if the petitioner's argument has merit.
The type of appeal you're looking for is completely different. What you're trying to do is get an appellate body to reexamine the judgment of the arbitrator. You're trying to argue that the arbitrator's decision is substantively unfair. That is an exceedingly difficult task because the whole purpose of arbitration is to create a venue whereby parties submit to the jurisdiction of an administrative agency which can then impose a binding award upon both parties. The idea is to create a simple, straight forward process which allows parties an opportunity to be heard and to relieve the federal courts from getting involved in labor matters. And the problem for the AAA pilots is that they now have the enviable argument of saying that the process they volunatarily submitted to because they thought it was fair, is actually unfair because we AAA pilots don't like the result. I can tell you already what the administrative appeal board is going to say.
Next, you go to federal court and the only way you're going to get into federal court is to allege some sort of action or fact about this award which offends the Constitution. You're welcome to pay a team of attorneys to write the brief, but like the Pan Am pilots, it'll get kicked right back out. The PanAM pilots tried to appeal the Gil award and the 7th Cir. kicked it right back out the door. You can probably get online and find the case at the 7th Cir.'s website. Otherwise, you can easily go to the local law library and one of the librarians can help you find it. When she/he does, be sure to ask her/him to Shepardize that case. That will tell you all the subsequent courts who have cited the Pan Am dismissal. It's been cited frequently and approvingly by other circuits to dismiss the exact type of action you propose. That is the rule of law and I'm sure it's the law in the D.C. Circuit or 3rd Cir. (I think that's the circuit for VA). If not yet, it will be once you try your appeal. And here's the kicker, unlike the arbitrator who doesn't have to follow previous rulings, once you're in federal court then the rules change. Judges do have to follow prior rulings. That's why the PanAm/Gil case is so significant.
If AAA pilots want to waste their money going trying to undo what by law can't be undone, then go right ahead. So yes, this award will stand. The West MEC has it perfectly correct in their email blast last night when they said: "At present, our common goal of a joint agreementis far more important than any personal disagreements we might have about a binding, irreversible third-party decision."
Benz M-100
Advanced
The severe implications of this decision have kicked me out of lurk mode.
As I see it, there are, to quote Mr Spock, "always alternatives". I don't expect that any form af legal challenge will be easy. OTOH, to unilaterally say that this decision will withstand any and all forms of legal challenge? I'm not buying that. If merely citing precedent is the basis of that prediction, look no further than the decision itself. DOH/Years of service are a VEEERRRY big precedent that seems to have been tossed out entirely in this decision. Precedents CAN be changed, or determined to be non applicable. Never say never!
Likewise, I don't buy that it is a given that the decision will not stand, but there may be significant consequences if it does. Will the company have to be run as 2 divisions for 15-20 years? What are the implications of having over half of the pilot workforce permanently disgruntled beyond words. This would have a sigificant cost.
There are a number of ways that this could turn as I see it. I make no actual predictions (especially be-all, end-all unilatersl ones) as my crystal ball has been on the fritz for decades. I choose to "wind the clock", see what comes from ALPA national and our own MEC in the next few weeks. For now it seems certain that a joint contract will likely be a long way off, at least until this plays out a bit more.
As I see it, there are, to quote Mr Spock, "always alternatives". I don't expect that any form af legal challenge will be easy. OTOH, to unilaterally say that this decision will withstand any and all forms of legal challenge? I'm not buying that. If merely citing precedent is the basis of that prediction, look no further than the decision itself. DOH/Years of service are a VEEERRRY big precedent that seems to have been tossed out entirely in this decision. Precedents CAN be changed, or determined to be non applicable. Never say never!
Likewise, I don't buy that it is a given that the decision will not stand, but there may be significant consequences if it does. Will the company have to be run as 2 divisions for 15-20 years? What are the implications of having over half of the pilot workforce permanently disgruntled beyond words. This would have a sigificant cost.
There are a number of ways that this could turn as I see it. I make no actual predictions (especially be-all, end-all unilatersl ones) as my crystal ball has been on the fritz for decades. I choose to "wind the clock", see what comes from ALPA national and our own MEC in the next few weeks. For now it seems certain that a joint contract will likely be a long way off, at least until this plays out a bit more.
aquagreen73s
Veteran
- Aug 22, 2005
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But, unfortunately, no understanding of the law. I spelled it out above. I don't expect all to understand it.
You seem to be having a tough time grasping the Law yourself sport.
The speed limit might be 35mph where you are standing, but if I choose not to drive down that particular stretch of road and stick to the interstate instead, that speed limit does not apply to me.
Benz M-100
Advanced
Okey-Dokey.
Actually, I fully understand what you wrote above and elsewhere on these boards. I simply don't believe you to be the infallable source of all wisdom in this matter. You may end up being correct about all of this, but for now I'm not buying in to any absolute predictions, especially from someone with a vested interest in the final outcome. Your apparent knowledge of the law is commendable, but I still don't consider your take on this to be the final word. I've been around too long to go for absolutes other than the usual: Death and taxes!
One of the unique aspects of ALPA merger policy is that it gives MEC merger committees complete and full authority to arrive at the merged list. An agreement on the merged list reached by the merger representatives is final and binding on both the MEC and the pilot group at large and is not subject to ratification.
aquagreen73s
Veteran
- Aug 22, 2005
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To use your highway metaphore, AAA chose to drive on the highway of arbitration. Therefore, it has to obey the rules and the rules severely limit appeals. Done.
Voluntary Binding Arbitration Agreements?
Think Before You Act.
by Michael R. McCurdy
During the past 20 years, dissatisfaction with traditional courtroom litigation caused many businesses to include binding arbitration provisions in their contracts. Recently, however, many businesses have become dissatisfied with the arbitration process, and many attempt to avoid arbitration as a dispute resolution procedure when possible. Indeed, businesses are turning to the courts for declarations that their disputes are not subject to binding arbitration.
In considering whether to include a binding arbitration provision in your contract, you should consider the pros and cons of resolving commercial disputes through arbitration as opposed to traditional litigation. Generally, the benefits of one are not afforded by the other, and which is best for your business depends on the nature of your commercial transactions.
In contrast to traditional litigation, binding arbitration as an alternative dispute resolution procedure offers:
Privacy - arbitration proceedings are generally conducted "behind closed doors," without the need to create a public file or record;
Informality - most discovery and rules of evidence are inapplicable in arbitration proceedings, unless the arbitration agreement specifically requires their application;
Expediency - the informality of arbitration and the elimination of most or all discovery allow for disputes to be resolved more quickly in arbitration as opposed to traditional litigation;
Cost savings - because of the informality and expediency, most arbitrations are concluded much more quickly, and therefore much less expensively, than traditional litigation;
Specialization - arbitration may allow the parties to choose an arbitrator experienced or trained in the subject of the dispute;
Unpredictability - because arbitrators generally are not required to follow legal precedent or procedural or evidentiary rules, and because many arbitrators are not licensed attorneys, the outcome of arbitration may be much less predictable than the outcome of traditional litigation;
Finality - most arbitration decisions cannot be reviewed on appeal; thus the arbitrator's decision is final;
Preservation of business relationships - arbitrating disputes may allow them to be resolved without the antagonism that can develop in traditional litigation, thus allowing a continuation of a profitable on-going business relationship.
If your business prefers resolving its disputes through binding arbitration, issues to consider when including an arbitration provision in your contracts include:
Whether all disputes arising out of the contract are to be submitted to binding arbitration. If not, the arbitration provision should specifically state which disputes are excluded from the scope of the agreement;
What substantive and procedural laws should govern the arbitration, if any. If the contract is silent on this issue, the resolution of your dispute is more likely to be governed by equitable considerations [in other words, the arbitrator may reach an outcome that he believes is fair under the circumstances, rather than an outcome required by law or the terms of the contract];
Where the arbitration hearing will be held, the procedure and time within which to initiate arbitration, the procedure for selecting an arbitrator, and the procedure that will govern the arbitration;
Whether damages to be awarded are limited by type or amount.
If your agreement fails to address these essential points, you may spend as much time arguing in the arbitration proceeding over whether the particular dispute is subject to arbitration, and the rules governing that proceeding, as you will spend in actually resolving your dispute.
Binding arbitration provisions in commercial contracts offer both advantages and disadvantages. While often allowing for relatively quick and less expensive adjudication of disputes when compared to traditional litigation, arbitration may not allow for a thorough investigation of the facts underlying the dispute or the opportunity to appeal an unfavorable decision.
Voluntary Binding Arbitration
Think Before You Act.
by Michael R. McCurdy
During the past 20 years, dissatisfaction with traditional courtroom litigation caused many businesses to include binding arbitration provisions in their contracts. Recently, however, many businesses have become dissatisfied with the arbitration process, and many attempt to avoid arbitration as a dispute resolution procedure when possible. Indeed, businesses are turning to the courts for declarations that their disputes are not subject to binding arbitration.
In considering whether to include a binding arbitration provision in your contract, you should consider the pros and cons of resolving commercial disputes through arbitration as opposed to traditional litigation. Generally, the benefits of one are not afforded by the other, and which is best for your business depends on the nature of your commercial transactions.
In contrast to traditional litigation, binding arbitration as an alternative dispute resolution procedure offers:
Privacy - arbitration proceedings are generally conducted "behind closed doors," without the need to create a public file or record;
Informality - most discovery and rules of evidence are inapplicable in arbitration proceedings, unless the arbitration agreement specifically requires their application;
Expediency - the informality of arbitration and the elimination of most or all discovery allow for disputes to be resolved more quickly in arbitration as opposed to traditional litigation;
Cost savings - because of the informality and expediency, most arbitrations are concluded much more quickly, and therefore much less expensively, than traditional litigation;
Specialization - arbitration may allow the parties to choose an arbitrator experienced or trained in the subject of the dispute;
Unpredictability - because arbitrators generally are not required to follow legal precedent or procedural or evidentiary rules, and because many arbitrators are not licensed attorneys, the outcome of arbitration may be much less predictable than the outcome of traditional litigation;
Finality - most arbitration decisions cannot be reviewed on appeal; thus the arbitrator's decision is final;
Preservation of business relationships - arbitrating disputes may allow them to be resolved without the antagonism that can develop in traditional litigation, thus allowing a continuation of a profitable on-going business relationship.
If your business prefers resolving its disputes through binding arbitration, issues to consider when including an arbitration provision in your contracts include:
Whether all disputes arising out of the contract are to be submitted to binding arbitration. If not, the arbitration provision should specifically state which disputes are excluded from the scope of the agreement;
What substantive and procedural laws should govern the arbitration, if any. If the contract is silent on this issue, the resolution of your dispute is more likely to be governed by equitable considerations [in other words, the arbitrator may reach an outcome that he believes is fair under the circumstances, rather than an outcome required by law or the terms of the contract];
Where the arbitration hearing will be held, the procedure and time within which to initiate arbitration, the procedure for selecting an arbitrator, and the procedure that will govern the arbitration;
Whether damages to be awarded are limited by type or amount.
If your agreement fails to address these essential points, you may spend as much time arguing in the arbitration proceeding over whether the particular dispute is subject to arbitration, and the rules governing that proceeding, as you will spend in actually resolving your dispute.
Binding arbitration provisions in commercial contracts offer both advantages and disadvantages. While often allowing for relatively quick and less expensive adjudication of disputes when compared to traditional litigation, arbitration may not allow for a thorough investigation of the facts underlying the dispute or the opportunity to appeal an unfavorable decision.
Voluntary Binding Arbitration
Once again, until we merge, the award exists, but does not matter.
You know as well as I do, that the East pilots can bring the merger negotiation process to a screeching halt. And you can threaten all you want about "Federal Court", but in reality there are dozens of legal ways to put the brakes on completing the process.
In the meantime, more US pilots upgrade, more US pilots take positions in widebodies, as we "negotiate" with the "full intention" of adhereing to the Arbitrator's award as soon as the negotiation process is completed.
Could take years pal... Could take so long it never happens...
Just my humble little opinion.
Walmartgreeter
Veteran
Could take years pal... Could take so long it never happens...
The East pilots have been taught well by current management about how to act like they are negotiating.
Just a question...can anyone remember when, other than in an industry downturn...management has tried to force a contract on a pilot group that did not want a new contract? There are many situations unique to the current industry that could come of all this. One thing is for sure......nothing is for sure.
Greeter.
The East pilots have been taught well by current management about how to act like they are negotiating.
Just a question...can anyone remember when, other than in an industry downturn...management has tried to force a contract on a pilot group that did not want a new contract? There are many situations unique to the current industry that could come of all this. One thing is for sure......nothing is for sure.
Greeter.
And since our costs are cheaper, guess where bottom-line-protect-the-investors Doogie will put new flying and new airplanes?
