An interesting thought to the pilot

[USA320Pilot]

During the past weekend US Airways and America West pilots had an opportunity to digest the ALPA Executive Council (EC) Seniority Integration Resolution, which has two main points:

1. The resolution states that the Executive Council is acutely aware of the negative consequences that may result if the MECs fail to come together to explore consensual approaches that promote career protection and mutual success.

2. The resolution directs ALPA President John Prater to continue to employ all of the resources of the Association to assist the MECs in achieving these goals.

In a letter to both MEC Chairman Prater said, “After both presentations and Q & A periods were concluded, and during the next several days, the Executive Council deliberated over the very difficult issues. It became clear to all Executive Council members that the issues raised from both MECs are of critical importance to the AWA and AAA pilots, as well as all ALPA pilots and the piloting profession. Therefore, as stated in the attached resolution, the Executive Council will require additional time and information to complete their deliberations.â€

On May 19 Doug Parker said, “The Agreement states that the integrated seniority list will be determined in accordance with ALPA Merger Policy and then submitted to the Company by national ALPA for acceptance. The Company is then to evaluate the list to determine compliance with five criteria set forth in the Transition Agreement.â€

In an email I received from ALPA EVP Kevin Friel, he indicated that prior to the May 21 US Airways and America West Merger Committee presentation the EC received legal briefings from their attorney’s.

Interestingly, a US Airways pilot said today, “I think the (ALPA International) EVP’s/Officers have been told that they face varied legal risks, whichever course they choose ultimately to take. They are in a mode of risk management for the entire union. Our job is to negotiate a list so they don't have to make that choice in the form of rejecting the list. So far, I believe all they have done publicly is reset the clock--if they can help us to reach an agreement with the west, they will be able to immunize the union from lawsuits from either group.â€

The Executive Council risk is that if they forward the Nicolau Award to the company then ALPA could have a lawsuit filed against them by the US Airways pilots and found liable for not following ALPA Merger Policy. In addition, ALPA could have a Duty of Fair Representation (DFR) lawsuit filed against them by the AWA pilots for presenting the Nicolau Award to the company.

Thus, what could be ALPA Internationals way out of this mess? To not forward the seniority list to the company, which could avoid a legal battle - not to mention a host if other problems such as decertification of ALPA on either the US Airways and/or America West property.

Is ALPA International required by the Constitution and By-laws of Merger Policy to forward the Nicolau Award to the company? No, of course not, which is why they voted 14-1 to not forward the arbitrated seniority list last week.

Interestingly, ALPA International may havw the option of never forwarding the list, which would create a permanent fence between the two pilot groups and could prevent litigation from proceeding. Why? ALPA International has the right to do so.

It is clear to me that ALPA International desires a consensual agreement between the two pilot groups on a seniority integration post Nicolau Award, which would make a messy situation go away. However, by doing nothing the EC could insulate itself from legal problems from either pilot group and give the US Airways pilots a potential permanent fence by not forwarding the list because per Doug Parker’s comments above, the company cannot implement the seniority award until it is forwarded by ALPA.

Regards,

USA320Pilot

 

[BoeingBoy]

Although almost anybody can bring suit for almost anything, East probably doesn't have a case if ALPA passes the list to the company. Setting up a fair process and not interfering in it after the fact has already been adjudicated and found to satisfy ALPA's DFR responsibilities.

Effectively interfering in the process by "sitting" on the award could open ALPA up to a successful DFR suit, however.

But hey, don't let that stand in the way of a good theory....

Jim

 

[aquagreen73s]

The Executive Council risk is that if they forward the Nicolau Award to the company then ALPA could have a lawsuit filed against them by the US Airways pilots and found liable for not following ALPA Merger Policy.
Regards,

USA320Pilot

Absolutely not true unless there is some procedural issue that ALPA didn't follow, which there wasn't. ALPA outsources the actual integration to the NMB for the very reason that they don't have to touch any substantive issue. This is not unusual in the world of business and law and it's exactly why arbitration has grown by leaps and bounds over the past decades. Arbitration is an efficient and antiseptic way of outsourcing sensitive issues for a third party to decide which then prevents unwarranted lawsuits. Its design is to prevent the exact type of frivolous lawsuits which you propose. You're certainly welcome to file a lawsuit accusing ALPA of not following the merger policy, but it'll be dismissed in a NY minute. The substantive issues were decided and those are done. The East never raised any objections or filed any complaints during the arbitration that ALPA, the West, or Nicolau weren't following the merger policy. Therefore, not only do you have no substantive grounds to attack ALPA, but you also don't have any grounds to attack ALPA based on a procedural defect.

 

[700UW]

The NMB has nothing to do with Seniority Intergration.

It handles union elections, contract negotiations and disputes.

 

[USA320Pilot]

It is my understanding the EC is not required by the Constitution and By-laws or Policy Manual to forward the Nicolau Award to the company.

Thus, the EC apparently has the power to create a "defacto" permanent fence.

Finally, I understand from ALPA sources that the list of EVP's in favor of throwing out the Nicolau Award and starting over is growing and the EC may take this action.

Regards,

USA320Pilot

 

[700UW]

Once again, your union does not have the power throw out a binding arbitration award.

Just like they have not done that and urged both parties to negotiate a settlement.

You really need to stop listening to Garland of the GAG.

The EC does not have the power put up a fence, it has to be agreed to by the West, East and the company.

No wonder why you could never get elected cause you don't even know how labor issues work.

 

[aquagreen73s]

The NMB has nothing to do with Seniority Intergration.

It handles union elections, contract negotiations and disputes.

You're speaking about jurisdiction and to those issues, you are correct - the NMB has exclusive jurisdiction. Nobody can touch those issues, even a Federal Court doesn't have jurisdiction other than reviewing a NMB decision if certain criteria are met. The NMB can also handle other matters as well, namely seniority integration. ALPA voluntarily used their process to arbitrate seniority issue. It's a part of the ALPA national merger policy.

This is from the NMB website:

"The NMB ADR Program is focused on assisting the parties with bargaining at earlier stages than mediation, and in addressing issues that may not be directly related to negotiating collective bargaining agreements."


http://www.nmb.gov/adrservices/adr.html

 

[exB717Flyer]

MERGER COMMITTEE UPDATE – MAY 29, 2007

On Thursday, May 24, the Merger Committee received the ALPA Executive Council’s Resolution postponing its decision on the US Airways MEC’s request that the Nicolau Panel’s Award be overturned. It is no overstatement to say that we are quite disturbed that the tactics employed by the US Airways pilots have prompted ALPA to hesitate for a moment – much less a month – in taking the only action it may take in connection with this Award; namely to “defend†it as “final and binding on all parties to the arbitration†(Merger Policy, Part 1, Section H.5 (B)) and to “present[] [it] to management and … use all reasonable means at its disposal to compel the company to accept and implement the merged seniority list.†Merger Policy, Part 1, Section I.1.

The time has come to bring the East’s unwarranted actions to a close. We understand that the Executive Council will resolve this matter once and for all sometime in June. Our Merger Counsel, on whom we have relied throughout this process and whose advice has served us so well over the past two years, has assured us that there is only one way it can be resolved – rejecting the East’s request to set aside the Award. Thus, while we are troubled by the delay, we remain certain that ALPA will not set aside the Award.

In the interim, the Resolution calls on ALPA President Prater to “employ all the resources of the Association to assist the MECs†in coming to a consensual agreement that puts this dispute behind us. We will wait to see what Captain Prater’s views are on how the dispute can be put behind us.

More than his views, however, we will be interested in the East MECs views on that subject. Throughout the entire Seniority Integration process, the East has shown a complete unwillingness to come to grips with the reality of their situation. Even when Mr. Nicolau made clear to them on the record that they simply would not be awarded a date-based list, they made no effort to modify their position. So you do not have any doubts about this history, we have pasted some relevant pages of the transcript to the end of this Update. The East leadership’s capitulation during the arbitration to demands of the extreme fringe of their pilot group who insisted that their Merger Committee pursue a date-based strategy that was entirely unsupportable (a capitulation that, we believe, actually undermined their case before the Panel) gives us little comfort that there is even now the political will on their part to make the hard decisions that these circumstances call for. Indeed, the East’s Hot line message to its pilots describing the Executive Council’s Resolution once again demonstrates that they are seriously misjudging the situation.

In contrast, as you know, the West Merger Committee from the outset took measured actions designed to accommodate the West’s position to the facts as they developed during the hearings and to Panel’s observations that we, like the East, were not going to be awarded the list and conditions we were arguing for. Unlike the East, however, we accommodated to that reality and ultimately gave the panel a roadmap that moved the process in the right direction.

In light of that history, both ALPA and the East MEC must understand that, at least from the West Merger Committee’s point of view, any willingness we might have to engage with the East during this short time period should not be interpreted to reflect any intention on our part to make any changes in the four corners of the Award.

As always, we will keep you advised as the process unfolds.


Transcript January 26, 2007 – Pages 2977-2979:

CHAIRMAN NICOLAU: Not only does the Board want to see that exhibit but, you know, I think that my colleagues have indicated that it would be wise for both sides to sit down and consider their positions once again, and if they want to tell us anything about that, the next meeting would be the time to do that.

MR. FREUND: I understood what you said about that.

CHAIRMAN NICOLAU: Okay. So there may be some specific things, and I don't know whether all of that was communicated in terms of what, some specific things that we want to see, but you know, I think it was clear from the beginning that the Board had some difficulty with both proposals. And, you know, the Board is ready to make a decision at some point in time after everything is in, including the briefs, but I have got to tell you it is always better if the parties do it, and I want you to give one more opportunity to come closer together if that is at all possible. If it isn't, we will take the data that we need, some of it we don't have yet, and craft a decision that will, you know, reach that level of mutual dissatisfaction that everybody tries to attain.

Transcript February 21, 2007 – Pages 3039-3041:

CHAIRMAN NICOLAU: Yes. The last time we met, in a somewhat smaller room, where even if it was smaller we were trying to figure out a way how to negotiate a treaty in this room, and this room I guess is perfect for it. The board asked both sides to reflect and to consider what we have said and to come back to discuss any revised positions that they had, that they intended to make, and to present. We already have a document from the America West pilots. We would like to hear first, this morning, from the US Air pilots as to what their response is and then anything that America West wants to add, and then we are going to take it from there. So Dan, how do you want to proceed in that regard?

MR. KATZ: Well, I guess the first thing I would like to do is respond to the submission that we received electronically last night from the America West pilots, and just say a word or two about that. Number one –

CHAIRMAN NICOLAU: That is a little backward, but I mean if you want to proceed that way.

MR. KATZ: I would prefer, unless there is a problem with that. I can start out by saying that we don't have a modification of our proposal in any respect that we are prepared to make at this time. And if it makes more sense logically to start from that I am happy to do that. We have considered fully the observations of the panel with regard to both side's proposals. We have given careful study to the issue. We have consulted with MEC and the advisors and done quite a bit of analysis, and we are comfortable with our proposal as it is. So I think that is probably a good place to start.

 

[USA320Pilot]

700UW,

Time will tell, but my information comes from members of the ALPA EC and US Airways MEC.

I'm not sure what the EC will do, but I know exactly what the majority of the US Airways pilots will do, if nothing else, which includes all of the options previously presented. This award will likely not be implemented for many, many years to come, if ever, because all the US Airways pilots have to do is negotiate per the Transition Agreement, live under LOA 93, let the AWA pilots enter Section VI negotiations (if they can), enter Section VI negotiations in 2010, and then wait 4 or 5 years to cut a deal.

By then the majority of US Airways pilots will be retired.

Regards,

USA320Pilot

 

[aquagreen73s]

It is my understanding the EC is not required by the Constitution and By-laws or Policy Manual to forward the Nicolau Award to the company.

Thus, the EC apparently has the power to create a "defacto" permanent fence.

Finally, I understand from ALPA sources that the list of EVP's in favor of throwing out the Nicolau Award and starting over is growing and the EC may take this action.

Regards,

USA320Pilot

There is absolutely no basis for what you say. Why on Earth would they TRY to throw out an award where there were two pilot neutrals assisting one of the most respected and experienced arbitrators? Why would ALPA so easily buy themselves a DFR lawsuit that would be an open and shut case for the AWA pilots? Why? Under what basis was this award defective that necessitates a do-over? The only basis is the result, which you happen to not like. Well I've got news for you, half the parties walking out of any courthouse are right there with you and would also like a do-over. Fortunately we have procedures to keep a lid on this victim mentality.

700UW,

Time will tell, but my information comes from members of the ALPA EC and US Airways MEC.

Regards,

USA320Pilot

So now you're alleging that members of the executive committee are breaching their duty of confidentiality by talking about confidential matters? You do know that EC members are bound by both criminal and civil laws to comply with their confidentiality agreements. . .

 

[BoeingBoy]

This award will likely not be implemented for many, many years to come, if ever, because all the US Airways pilots have to do is negotiate per the Transition Agreement, live under LOA 93, let the AWA pilots enter Section VI negotiations (if they can), enter Section VI negotiations in 2010, and then wait 4 or 5 years to cut a deal.

Well, you bet on a best case outcome from the arbitration. Nothing like betting on a best case outcome again.....

Jim

 

[USA320Pilot]

Aqua,

I'm not alleging anything. I know for fact that last week a number of EVP's believe the EC has the power to throw out the award and wanted the EC to take that action. Furthermore, the list has grown over the weekend for those who support this approach to solve the problem.

Then the parties would be ordered to re-enter negotiations and possibly mediation/arbitration.

Will the EC do it? I do not know, but apparently the potential has grown over the weekend.

Personally, I prefer a permanent fence with shared growth and shared scope protection. Why? Each pilot group keeps its pre-merger career expecatation and there is no windfall for either pilot group. I believe this concept is fair. Would you agree with that?

Regards,

USA320Pilot

 

[aquagreen73s]

Aqua,

I'm not alleging anything. I know for fact that last week a number of EVP's believe the EC has the power to throw out the award and wanted the EC to take that action. Furthermore, the list has grown over the weekend for those who support this approach to solve the problem.

Then the parties would be ordered to re-enter negotiations and possibly mediation/arbitration.

Will the EC do it? I do not know, but apparently the potential has grown over the weekend.

Personally, I prefer a permanent fence with shared growth and shared scope protection. Why? Each pilot group keeps its pre-merger career expecatation and there is no windfall for either pilot group. I believe this concept is fair. Would you agree with that?

Regards,

USA320Pilot

Then you should have argued it because it would have been persuasive. But you didn't. You went for straight DOH and got blown away. The law allows for one bite and one bite only at the apple. It's called "Res Judicata."

 

[luv2fly]

Then the parties would be ordered to re-enter negotiations and possibly mediation/arbitration.


Regards,

USA320Pilot

How does that saying go again? If at first you don't succeed try try again. Problem is it doesn't work that way in this case. That's why they call it binding arbitration.
I suppose you could continue to stall your negotiations in an attempt to circumvent the award. Then you suffer the consequence of living under the worst pilot working agreement in the industry for a prolonged period. Pick your poison. It is a lose lose for the East.

 

[Bob Loblaw]

'USA320Pilot' posts:
I prefer a permanent fence with shared growth and shared scope protection. Why? Each pilot group keeps its pre-merger career expecatation and there is no windfall for either pilot group. I believe this concept is fair. Would you agree with that?
------------------------------------------------------------------------------------------

I think that would have been a perfectly fine position for the east to take to modify their proposal when asked to by the arbitrator. Transcripts from that meeting have been posted in other threads detailing exactly what the arbitrator said, the west said and the east said. The arbitrator specifically told the east that their position would not be awarded and asked for an alternate scenario. He told both sides their positions would not be awarded and to come back with alternate proposals.

If I were on the EC not affiliated with either airline I might take the same personal view that you have stated some on the EC have. However, I could not in good conscience take such an official view because I am bound not by the prevailing argument of either side but by the procedures to which both sides agreed to be bound by. My responsibility is to the process and to the rules as set out by ALPA policy which both sides entered into willingly. Sure it may be viewed as a rotten deal for the east side but they had every opportunity within the process to mitigate what became the ultimate result.

If I were a member of the EC I would have to resign myself to upholding the "rule of law" - policies and procedures in our case -because that is how this union operates. Otherwise any MEC or unified pilot group could and would have the ammunition to ignore any or all ALPA policies. That adherence to our "law" is what keeps us from devolving into chaos. My next step might be to get busy redrafting the merger policy.

As to this next month in which ALPA wishes the two MECs to meet and try to come up with a modification to the award it is not going to happen. Just as the east is unified like never before to get this thing to go away so is the west unified as never before and the membership is not about to let our union, our company and our leaders put us into a position of "bending over" once again.

Bob