US Pilots labor Discussion 12/4-

[usabusdriver]

I am going to jump in on the language fray on LOA 94 and the quest for a snapback interpretation that unfortunately seems to favor the company position. Everyone reads the first sentence (1. Freeze current rates effective 5/01/04 through 12/31/09.) to essentially mean freeze the current rates of pay until Dec 31, 2009 because that is what is most advantageous to the pilot group. What is important to see are the dates listed and the dates of associated with LOA 84 and the contract.

The contract date was Jan 1, 1998, with a pay rate anniversary of 8/31. The restructuring agreement reset the pay rate anniversary to 5/1. LOA 93 was concluded in October of 2004 with an amendable date of Dec 31, 2009.

Now the next sentence (2. Reduce rates as frozen by 18%.) everyone interprets to mean, as Jim has stated, cut the rates by 18% while they are frozen. So when the freeze ends the reduction ends.

But you can see the language in a different context by examining the modifier “effective 5/01/04 through 12/31/09â€￾ in the first sentence. With the refreshed date knowledge, the modifier can now be seen not as a time line, but rather a contractual term meaning the rates of pay tables in force from the contract dated Jan 1, 1998 as modified by the restructuring agreement with the pay anniversary of 5/1 and the amendable date of 12/31/2009. With this interpretation the second sentence is clear and does not lend the ambiguity of a freeze ending and the subsequent question, is the reduction supposed to end as well? I just found the LOA pay table out to 5/2011 that shows pay frozen.

I guess that is why we have lawyers, to argue the minutia while charging $300 an hour.

Just my .02

 

[Metroyet]

Hey Metroyet,

When is the army going to put out a new update?

Hate

I don't know when they'll put out an update. Perhaps they're doing something crazy....like actually putting some thought into their update. This, of course, is in stark contrast to the "shoot from the hip, straight into your foot" emotion-driven style that you're union has grown accustom to. What is this fascination with Dr. Jacobs, (he's a cardiologist too) pause? Given USAPA'S habit of putting zero thought into their knee jerk diatribes, I guess it isn't surprising that you all hang your hat on the 10 seconds an endlessly intelligent man takes to answer a key question...which he did by the way.

USAPA want's the Judges to accept the fact that in reality, there was never an appropriate time to object to their actions. Does that make any sense? Does it make sense that there are laws that can be violated, disenfranchising minority groups, that can never be adjudicated because the complaint is caught in between ripeness and statute of limitations? The law doesn't work that way.

Also, for arguments sake, let's say the court says the case wasn't ripe? Then what? All that means is that AOL holds a gun to USAPA and the Company's head during negotiations just lying in wait for them to be dumb enough to accept a DOH list. The guilt has already been established and now AOL just waits for the triggering event.

Seham has painted USAPA into a corner. There's no way out either way.

 

[usabusdriver]

I listened to the Ninth Circuit audio and found that both sides were prepared and presented a forthright and commendable manner. You know they had spent a lot of time preparing and with so much work at stake, heart rates must have been high and mouths dry, 15 minutes is pretty short. Lee presented more of an emotional argument and considerable oratory skills that contrasted with Andrew’s plodding but forceful logic quite discernibly. Interesting to say the least. It will be quite intriguing to read the panel’s decision.


Whatever the outcome, I hope we can all move forward, all long journeys must begin with the first step.

 

[BoeingBoy]

I am going to jump in on the language fray on LOA 94 and the quest for a snapback interpretation...

<snip>

as Jim has stated...

<snip>

I wrap my most definitely not legal scholar brain around the wording in LOA 93 with a simple analogy:

- I have a container (representing the contract and LOA's) that has 100 ounces of water in it (LOA 84 pay rate when LOA 93 became effective).

- I put the container in the freezer to freeze the water, keeping the water frozen till 1/1/2010 (#1 in LOA 93 - freeze rates).

- When the water is frozen, I chip away 18% of the ice and throw it away (#2 in LOA 93 - reduce rate as frozen by 18% with no end date specified).

- On 1/1/2010 I take the container out of the freezer and thaw the frozen water it contains (#1 in LOA 93 - freeze rates through 12/31/2009).

- How much water is in the container? The original 100 ounces or only 82 ounces?

As I've said, the actual wording is only one part of the puzzle. The other part is the intent that the negotiators for both sides agreed to. It's that 2nd part that makes all the difference, as far as I'm concerned, aince the actual language is pretty cut and dry to me. I have no idea what that intent was on either side.

Jim

 

[cleardirect]

I'll help you.. on topic.. I fully support your right to advocate and vote in any duly constituted election. If you want ALPA back because you think they will have less than five FPLers then you are far too intelligent for me to tangle with. I fold.

Cheers. 🙂

Let go of the hate. I never said I wanted ALPA back. My point again, why is USAPA not ALPA spending my dues money to send 5 PFL pilots to SFO for a vacation?

Why are you or no one else seem concerned with the out of control spending USAPA not ALPA is engaged in?

Just because usapa is less than ALPA still does not make what they do right. If usapa only paid the staff $99,000 instead of $100,000 would that make it right?

When are you guys going to start looking at what usapa is doing as a union and stop comparing it to what the other union did?

 

[Phoenix]

..

4. I'm not sure that I fully understand the female judge's question of what would happen if they chose to affect female pilots by some action. I thought it was a poor analogy for what I thought she was trying to get answered.
..

It appeared to me to be a hypothetical to focus on the question of ripeness, but it turned out to reveal more than just ripeness. It is important to note her question that immediately preceded her hypothetical. Graber (female judge) asked ""Obviously you think this case is ripe..uh Why is that true, in the absence of the end of the negotiations as distinct from during the negotiations?" She then asked plaintiff the hypothetical in a slightly different context to help clarify. It focused the question of whether or not a anticipatory breach causes ripeness (doing so she sets aside any consideration of whether or not a legitimate union objective is being pursued in the barraging. In other words, in the hypothetical, the union cannot possibly have a legitimate union objective for the bargaining position of arbitrarily placing all men above women.. even so, can ripeness still be excluded since negotiations have not yet concluded, based on the fact that a breach is anticipated but has not yet occurred. After Graber presented her hypothetical to plaintiff, and heard his responses, she repeatedly asked the plaintiff "what was the act as distinct from stated intention?". She was asking for something more concrete than "anticipatory".

Graber also pressed the defendant to answer the hypothetical during rebuttal. When defendant answered he injected the hortatory established by constitutional objective, and attempted to continue the theme, but Graber said, "Let's leave aside the constitutional question.." thus she returned to the narrow hypothetical that excluded consideration of whether or not the union was pursuing a legitimate union objective. Having returned to the narrow hypothetical, where the union obviously could have no legitimate union objective in bargaining to place all men over women, defendant then still held that there is no DFR claim until the negotiations are completed, the ratification process finished, and that the political process has run its course without interference from the court (as he argued earlier, citing previous cases, of which the court had zero questions).

Regardless of how one decides to answer Graber's hypothetical of ripeness, the answer does not seem favorable to the plaintiff. If the hypothetical is not ripe even when the union clearly cannot have a legitimate union objective then the current actual defendant doesn't have any burden to show they have a legitimate union objective in their bargaining position.. at least not until and unless a contract is implemented and a suit follows, far in the future. On the other hand, if one says that there is indeed ripeness in Graber's hypothetical then it must be acknowledged that ripeness, at least in part, results because of an illegitimate union objective or arbitrary bargaining position. But since Graber carefully excluded the question of legitimate union objective (by inserting an illegitimate union objective) then the question still remains: Notwithstanding a hypothetical ripeness, did the actual defendant have a legitimate union objective that absolves them from a breach of DFR, and were they allowed to present their case?


Graber's hypothetical was revealing. If the "Raemey" case cited by plaintiff is inadequate to establish precedent that there is indeed ripeness, then the result favors defendant (Its applicability seemed uncertain). On the other hand if ripeness is acknowledged, then Graber's hypothetical demonstrates that the union must be able to present a case that their actions were in fact legitimate union objectives, which obviously was not allowed, neither were the jurors allowed to consider any such evidence.

 

[aquagreen73s]

You missed the hypothetical completely: the point was to draw it out that according to Seham, a DFR complainant would not have a ripe claim until there was a CBA. In her hypothetical, the discrimination was based on gender. Unbelievably, Seham told her that those hypothetical victims would have to wait until there was a CBA before filing a DFR because in his world, a DFR claim isn't ripe until there is a CBA. That means justice delayed for perhaps years. I don't think that went over too well with her. Have you seen her bio? http://en.wikipedia.org/wiki/Susan_Graber

 

[Phoenix]

You missed the hypothetical completely: the point was to draw it out that according to Seham, a DFR complainant would not have a ripe claim until there was a CBA. In her hypothetical, the discrimination was based on gender. Unbelievably, Seham told her that those hypothetical victims would have to wait until there was a CBA before filing a DFR because in his world, a DFR claim isn't ripe until there is a CBA. That means justice delayed for perhaps years. I don't think that went over too well with her. Have you seen her bio? http://en.wikipedia.org/wiki/Susan_Graber

If it was to smoke out the defendant why did she bother to spill her beans by asking it to the plaintiff first? 🙄

 

[BoeingBoy]

I intend to agree with aqua, although for a somewhat different reason than aqua states. The judge excluded only the legal/constitutional issue from her hypothetical - not the issue of "legitimate union interest" as Phoenix contends. With the modifications the hypothetical question focused on when an aggrieved group can file a DFR suit (ripeness) - not whether they can file suit (legitimate union interest). In other words, does the aggrieved group have to wait until actual harm is inflicted or is the union's attempt to cause harm enough. That could imply that the judge believed that a union can never have a "legitmate union interest" in discriminating against members only because they belong to a certain group. Or not. Either way, the issue raised by the hypothetical was only ripeness and nothing else. If the judge had wanted to get into the question of "legitimate union interest" she could have easily used her hypothetical to ask whether discriminating against members only because they belong to a certain group could be a "legitimate union interest" or not.

Jim

 

[Phoenix]

I intend to agree with aqua, although for a somewhat different than aqua states. The judge excluded only the legal/constitutional issue from her hypothetical - not the issue of "legitimate union interest" as Phoenix contends. With the modifications the hypothetical question focused on when an aggrieved group can file a DFR suit - not whether they can file suit. That could imply that the judge believed that a union can never have a "legitmate union interest" in discriminating against members only because they belong to a certain group.

Jim

I agree that at first the hypothetical appears favorable to the plaintiff, because it seems to lower the difficulty to find ripeness. Her hypothetical inserted an illegitimate union objective by inserting an arbitrary and prejudicial bargaining position. I find it hard to believe that it would be her intent to provide blatant prejudice.

The judge did not exclude anything in her first presentation of the hypothetical bargaining position that arbitrarily placed all men above women. She actually inserted an illegitimate intention within the hypothetical position. The defendant identified this error in the hypothetical and his answer argued the union had a basis for their bargaining position, unlike the hypothetical. She then asked to set aside his point, and return to the hypothetical. In the context of the hypothetical, he returned to the previous case law he had cited and repeated the same conclusions, which they had not questioned earlier.

 

[BoeingBoy]

I find it hard to believe that it would be her intent to provide blatant prejudice.

I didn't intend to imply that that her intent was to provide blatant prejudice. My point was that the hypothetical, as modified to exclude legal/constitutional issues, provided the perfect opening to have both lawyers answer the question of whether "legitimate union interests" could be claimed in such a situation and whether that should have been considered by the jury or not. But that opening went unused, with the questions only on the ripeness issue. So it's hard for me to accept that the questions gave insight into anything involving the "legitimate union interest" argument. That could indicate that the "legitimate union interest" issue was settled as far as that one Judge was concerned. Or not.

To me, the whole question of "legitimate union interest" isn't cut and dried in the DFR context - it's possible that "legitimate union interests" can also be discrimination inconsistent with the union's DFR responsibilities. Using the Judge's modified hypothetical - negotiating seniority based on age - suppose the union could demonstrate a "legitimate union interest" - older members have less time left until retirement so less time to make up for previous concessions, for instance. If the end result of that "legitimate union interest" is lack of fair representation for a group of members only because they belong to a certain group - all women would be lower on the seniority list than all men - is the "legitimate union interest" argument a valid defense against a DFR claim? I don't know the answer but one thing is clear - the Judges didn't ask that question. Hence my opinion that the line of questioning concerning the modified hypothetical says nothing about the "legitimate union interest" argument.

Jim

 

[traderjake]

Whatever the outcome, I hope we can all move forward, all long journeys must begin with the first step.[/size]

Typing everything in bold letters doesn't make it true, it makes you a loudmouth.

 

[cleardirect]

The entire ninth circuit appeal appears to be about ripeness. USAPA’s position is that as Seham said the knife thrust, when does the harm occur. USAPA says not until a CBA, plaintiffs position is once the intent is stated.

So for all of you arm chair lawyers please justify and explain why the DFR case is not ripe but the snap back grievance is. Everyone knows that the “harmâ€￾ does not occur until Jan 1, 2010. Yet USAPA went ahead and filed the grievance in July. Why was that not denied as not ripe back in July? How could that arbitration be scheduled prior to the date of harm?

 

[nic4us]

I just found the LOA pay table out to 5/2011 that shows pay frozen

I posted this months ago during the same discussion with Megasnoop. Never heard a reply, but my question both then and now is why do you build a pay table out to 2011 if there is a snapback at the end of 2009?
View attachment 8617

 

[nic4us]

So for all of you arm chair lawyers please justify and explain why the DFR case is not ripe but the snap back grievance is.

Oh, that is an easy one. The answere is, because the all knowing, omnipotent, beyond reproach, perveyor of the fairness and truth, usapa says so. They took a vote and the majority has changed reality. The real question is how dare anyone have a contrary view to that of the schizophrenic organization that knows what is best for you?