US Pilots labor Discussion 12/4-

[john john]

would greatly undermine that fundamental principle and invite mischief in any future arbitration in any other issue by any other parties to those arbitrations. Not just pilots, labor unions or others such as them. It would open the door for any loser in an arbitration to seek judicial relief to deny or delay the implementation of the arbitration result. Full and final would not have the same meaning that we currently believe that it does.

Arbitration awards have been voted out of labor contracts in the past and I suspect will in the future. Companies and unions always bargain with arbitration awards in union negotiations

 

[cactusboy53]

Arbitration awards have been voted out of labor contracts in the past and I suspect will in the future. Companies and unions always bargain with arbitration awards in union negotiations

Name ONE specific time that it has EVER happened in the airline industry. If so, which airline, work group, which union, and basic details of how the final and binding arbitration was voted out of the labor contract. Just curious.

 

[Crzipilot]

As to the question, What about the thought process (why she made a hypothetical position of Male vs Female for seniority) as such that even if that was in the constitution of the union, could a suite be filed immediately??? No harm has been done, but the possibility of harm is there. Now, as things unravel and such, I.E. to get an actual CBA on the table it still has to be voted in. Which by the by, has to be agreed upon by the company also, which has to abide by a myriad of federal laws too. So from a single statement, to final product, there are many hurdles that must be crossed before a final product is on the table and voted on. During that time many twists and turns can happen etc etc, and such a lawsuit at this point may be pointless as there technically wasn't any harm done.

Not saying the west is going to lose, just that she may have been trying to go in that direction in the thought process, to pull the view point away from the myopia of looking directly at the actual situation....

dunno....we'll find out soon I guess

 

[luvn737s]

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.
Jim

What is the barrier to implementation of a discriminating policy? A vote where the party that benefits, at the expense of the other, has an overwhelming majority. How can the judge ignore that the combination of Bylaw, "bargaining position" (DOH list) and stated intent (to circumvent the Nicolau award) does not logically lead to the inevitable disenfranchisement of a portion of the union and/or represented pilots (non-members)?

Is not "conspiracy to commit ___________(your favorite felony)" still a crime, even if the crime itself is thwarted? Why doesn't the same rationale apply here?

 

[BoeingBoy]

Arbitration awards have been voted out of labor contracts in the past and I suspect will in the future. Companies and unions always bargain with arbitration awards in union negotiations

While I agree with the basics of what you say it doesn't refute what you quoted from HP_FA's post. The union and company currently accept that an arbitrator's decision is final and binding when there's a contract dispute. If that same issue is the subject of future negotiations makes no difference until those future negotiations are complete and a new contract is in place. That's your point.

What this case says, if USAPA is correct, is that "final and binding" has no meaning and can be ignored - not negotiated away but just ignored. If an arbitrator rules for the union, the company doesn't have to comply with that ruling unless they wish to. Using the upcoming East pay issue - if an arbitrator rules that pay goes back to what it would have been on 1/1/2010 per LOA 84, the company can just say "So what, we're not paying those rates" if "final and binding" is meaningless. No negotiations required. Basically, if USAPA is correct about "final and binding", the company (and all companies with unionized employees) can ignore the contract at will because the grievance process will have no enforcement power.

Jim

 

[cleardirect]

As to the question, What about the thought process (why she made a hypothetical position of

Not saying the west is going to lose, just that she may have been trying to go in that direction in the thought process, to pull the view point away from the myopia of looking directly at the actual situation....

dunno....we'll find out soon I guess

I think that you are correct. Judge Graber wanted to change the situation and see if the logic and ethics held up. I find it funny that some are questioning the questions asked by experienced judges and wondering why this or that was not asked.

Personally I think the court was looking for an answer from Seham when this would end. He failed in that. Saying only when a CBA is complete but then telling the court it could be interminal. Not what they were looking for.

 

[Captain Underpants]

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

Jim,

I like your analogy and I think you are on the right track although you may need a bigger container. In labor contracts a concessionary pay freeze is put in place to temporarily prevent pay from rising. It prevents scheduled raises from taking effect until the freeze ends. The raises are normally triggered as in our contract by calendar dates. The only way to permanently stop the increases would be to negotiate language stating the increases are "eliminated" or "canceled".

So using your analogy you have to add the following increases to your container when the water is unfrozen. That must be done unless either the triggering dates have not yet occurred or the contract says specifically that the scheduled increases were eliminated.

• Hourly pay rates will be increased by a compounded 1% effective on May 1, 2003; May 1, 2004; May 1, 2005; and May 1, 2006; and further increased by a compounded 2% effective on May 1, 2007 and May 1, 2008; and 3% on May 1 of the succeeding status quo period (i.e., the period past the Agreement amendable date).

The company was originally trying to argue that no pay increases could occur after 12/31/09 due to entering the RLA status quo period. They have wisely dropped that argument since it is absolutely false as previously negotiated pay increases taking effect during the status quo period have always been upheld by the courts.

The 18% reduction as you correctly showed in your analogy is a different animal than the pay freeze. It is a pay cut that would normally need snapback language unless it has a contingency that ends it. The question is if the language "as frozen" is conditional on the pay freeze still being in effect. More clear language would be "while frozen" instead of "as frozen". The line #2 language may be subject to a legal interpretation and arguments.

The company using "intent" as a defense has almost no chance of success since the company wrote the language regarding the pay freeze. Legally the party that actually writes the language in question into the agreement can't use "intent" to change the meaning of the agreement. As a general rule the default interpretation is what the language says not what the writer says he wanted it to say or intended it to say. If the writer had a different intent then he had the control and the responsibility as the author to write language that reflected his intent. The author trying to argue intent is simply trying to change the agreement after the fact.

It is possible the company made a mistake and assumed they only needed to freeze the pay until the status quo period believing the status quo provision would leave it frozen which is false. Ignorance of the law can't be used as an excuse or defense by the company. The other possibility is the company knowing the vote would be close was trying to trick the pilots and into thinking the pay freeze would only last 5 years to get more votes and at the same time was telling the investors that the freeze was indefinite. LOA 93 was sold to the pilots and voted on as a 5 year deal. I recall my union rep saying the company needs 5 years fixed pilot costs because that what the investors needed to secure the financing. The language the pilots approved by a 57% vote clearly says the pay freeze ends on 12/31/09.

underpants

 

[Crzipilot]

I think that you are correct. Judge Graber wanted to change the situation and see if the logic and ethics held up. I find it funny that some are questioning the questions asked by experienced judges and wondering why this or that was not asked.

Personally I think the court was looking for an answer from Seham when this would end. He failed in that. Saying only when a CBA is complete but then telling the court it could be interminal. Not what they were looking for.

I'm not sure if they were looking for a way for it to end, as that is not their job, but what the process is for it to end. With the way the previous union set it up, it's in a perputual machine to where it may never end, nor does it have to. It's the choice of each side as to when and how it will end, with their votes. A waiting game as some have said, that there is no harm, until such that each side votes what they want or are willing to live with. Now of course part of that has changed to it's a single vote, not a dual vote. So if in the hypothetical question the majority of the members were men, and they voted for the new process, the women could do something. But I think the point Seham was making, was that there are numerous points inside union constitutions which are illegal via federal law, and such are ignored, not sued upon to have removed. And such in the case of the men vs women, even though it's in the constitution, it couldn't be enacted as it's illegal by federal law, discrimination. In a round a bout way, the DOH principle, isn't illegal. Hasn't caused harm (ripeness), and an agreeable outcome could still be reached as there isn't a CBA to be voted on yet. If I read things correctly, it is the nature of the courts to attempt to stay out of the internal politics and such of unions, until such time as it's definitely needed.

As to the arbritation for the pay, it's a different animal, as the arbitration would be regarding the definition of that section of the contract, which both parties are bound by. The underlying thought of the seniority integration is the fact that it was an internal ALPA policy, to determine the merging of the lists, and such, ALPA is no longer in control, USAPA isn't bound by it, and ALPA did the disservice by attempt to negotiate around their own process.

 

[nic4us]

It is possible the company made a mistake and assumed they only needed to freeze the pay until the status quo period believing the status quo provision would leave it frozen which is false. ........................ LOA 93 was sold to the pilots and voted on as a 5 year deal. I recall my union rep saying the company needs 5 years fixed pilot costs because that what the investors needed to secure the financing. The language the pilots approved by a 57% vote clearly says the pay freeze ends on 12/31/09.

underpants

Underpants,

I believe you when you say LOA 93 was sold to the pilots as a 5 year deal. But maybe you can help me out here. Was the paytable I linked in a prior post part of that sale, and if not where did this paytable come from? It clearly has columns denoting the payscales in the years 2010 and 2011, a full 2 years of frozen rates past 1-31-09.

 

[Captain Underpants]

Underpants,

I believe you when you say LOA 93 was sold to the pilots as a 5 year deal. But maybe you can help me out here. Was the paytable I linked in a prior post part of that sale, and if not where did this paytable come from? It clearly has columns denoting the payscales in the years 2010 and 2011, a full 2 years of frozen rates past 1-31-09.

Nic,

Don't know where the pay table came from but it is not in any agreement nor ever presented as being in any agreement and is incorrect. These would be the rates if pay was cut 18% first and then frozen forever at those new rates as if there was no freeze expiration date in LOA 93. No one is suggesting that is what the language of LOA 93 says. The language is exactly the opposite....freeze pay until 12/31/09 and reduce rates as frozen by 18%.

The official USAPA position is as follows:
"It is our opinion that the language in LOA 93 regarding pay rates and pay freezes expires on December 31, 2009. We believe that when the pay freeze expires on 12/31/09, we dont just return back to the 18% reduction, but rather we return to the compensation section of LOA 84. The salient point here is that LOA 84 established pay rates twice each year, with the last rate adjustment coming on May 1, 2009. It’s that May 2009 rate that would be in effect on Dec. 31, 2009, when the LOA 93œfreeze/18% reduced rates end. Doing the math on these numbers produces the following estimated pay schedules for January 2010 as per the restructuring agreement:

January 1, 2010 pay rates per Restructuring Agreement:
12th year Captain Rate 12th year F/O rate
A330€”€“$222.26 A330€”€”$152.22
Group 1€”-$201.35 Group 1€”$137.52
Group 2 ” -$174.85 Group 2€”$119.42 "

Also these rates would increase by 3% on May 1 of every year while in the status quo period which means until a new agreement is reached.

underpants

 

[BoeingBoy]

I like your analogy and I think you are on the right track although you may need a bigger container. In labor contracts a concessionary pay freeze is put in place to temporarily prevent pay from rising. It prevents scheduled raises from taking effect until the freeze ends. The raises are normally triggered as in our contract by calendar dates. The only way to permanently stop the increases would be to negotiate language stating the increases are "eliminated" or "canceled".

I agree that the freeze applied to LOA 84 pay rates has an end date.

• Hourly pay rates will be increased by a compounded 1% effective on May 1, 2003; May 1, 2004; May 1, 2005; and May 1, 2006; and further increased by a compounded 2% effective on May 1, 2007 and May 1, 2008; and 3% on May 1 of the succeeding status quo period (i.e., the period past the Agreement amendable date).

I basically agree although I think the retroactive increases are open to debate. I do believe that applying the LOA 84 raises going forward is a possible outcome of the arbitration. I didn't include any discussion of that because I was only talking about what the 1/1/2010 rate would be could be and the retroactive increases are unlikely in my opinion.

The company using "intent" as a defense has almost no chance of success since the company wrote the language regarding the pay freeze.

Then the clear language governs, I guess. That means that the 18% reduction remains in place unless the union can prove that the intent was different since the 18% reduction has no stated end date. How the union could prove the company's intent seems hard enough - especially if the company's intent is not relevant if they wrote the language.

As I have said in the past, but didn't include in the post you responded to, is that I see 3 possible outcomes. In order of most to least favorable for the East pilots they are:

- The 1/1/2010 rates go to what they would have been if LOA 93 had never existed.
- The 1/1/2010 rates return to LOA 84 rates at the time they were frozen and the LOA 84 increases resume going forward.
- The 1/1/2010 rates remain unchanged.

As I said above, I personally see no chance that LOA 84 increases will be applied retroactively to arrive at the 1/1/2010 rate. I just can't get that from any part of the LOA 93 language - it would require that the LOA 84 rates at the time LOA 93 was adapted not be frozen (suggesting unchanged) until 1/1/2010 but rather that the payment of those rates and increases be postponed until 1/1/2010. That is completely different wording, not just using "as" frozen instead of "while" frozen.

Jim

 

[usabusdriver]

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

Trader,

While I hold no illusions about Truth and what anyone on this webboard writes, your statement confuses me. I though using all caps was yelling and being a loudmouth. I did not use all bold. Yes, I do use a larger font size, presbyopia has been working its magic on me and I like to use the preview and check what I write, my bad, loudmouth I guess it is. :blink:


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

One question, what exactly in the quote above offends you, since you took the time to single it out?

 

[nic4us]

I'm not sure if they were looking for a way for it to end, as that is not their job, but what the process is for it to end. With the way the previous union set it up, it's in a perputual machine to where it may never end, nor does it have to. It's the choice of each side as to when and how it will end, with their votes. A waiting game as some have said, that there is no harm, until such that each side votes what they want or are willing to live with. Now of course part of that has changed to it's a single vote, not a dual vote. So if in the hypothetical question the majority of the members were men, and they voted for the new process, the women could do something. But I think the point Seham was making, was that there are numerous points inside union constitutions which are illegal via federal law, and such are ignored, not sued upon to have removed. And such in the case of the men vs women, even though it's in the constitution, it couldn't be enacted as it's illegal by federal law, discrimination. In a round a bout way, the DOH principle, isn't illegal. Hasn't caused harm (ripeness), and an agreeable outcome could still be reached as there isn't a CBA to be voted on yet. If I read things correctly, it is the nature of the courts to attempt to stay out of the internal politics and such of unions, until such time as it's definitely needed.

Crzipilot,

You have hit the nail on the head. The West does not need to wait until usapa gets a DOH list implemented to be harmed. The West was harmed when their rights to dual ratification were stripped, their rights to the end product of the arbitration were stripped, their rights to fair representation were stripped, all so the majority east, in a very obvious display of "Bad faith", could reneg on their obligations, and try to render "final and binding" as meaningless.

Seham is making the arguement that it is not ripe until there is harm. Jacob argues, that harm has already occured, by the bad faith negotiating the east has displayed.

We entered into an agreement in "good faith", to abide by the results of a binding arbitration. Everyone involved had a full expectation to use the results of that process. The east walked away from their obligations under those agreements, harming the west in the process, not merely threatening to harm in the future if your "bad faith" tactics are sucessful.

Lets say we made a deal to share a cake. We decided to be fair about it and have a third party cut the cake and hand out the portions. The cake is cut in half with an equal portion for each of us. You now decide that since you are bigger , you deserve more than half, grab the cake and run off.

The question is, when am I harmed, when you actually eat the cake, or when you stole it in the first place?

 

[nic4us]

Nic,

Don't know where the pay table came from but it is not in any agreement nor ever presented as being in any agreement and is incorrect.

Thanks for the reply, I really do not know where the table originated from either. Just thought it strange, for many reasons. One, that it had columns out til 2011, and two, that it would even bother listing the same pay in each column over and over again. It looked somewhat suspect to me.

 

[Megasnoop]

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.

PHX, I sat out the first reaction round out, wait until the "we cleaned your clock" settled down on both sides to reply. I hope readers can see this post for trying to be balanced. First, I don't see an AOL defeat based on their attorney's 10 seconds of silence on the ripeness question. Anyone who does is off-base. As one West observer said, he needed to think through his response. Graber's hypothetical was just that, a hypothetical. It caught Seham off guard, not expecting it. But his comments about Title 7 were all really needed to put that to rest. It wasn't until long after the EEOA/1964Civil Rights Act was passed that unions got rid of all their discrimination language about membership, including ALPA. But they didn't violate federal law with their language. Some did with their deeds and lost suits over it. I don't think Clear's "logic and ethics" doesn't come into play, either. He wants to take this case and the appeal to some higher moral plain. Appelate panels don't go there. Their looking at errors, not retrying the case.

What became obvious in the court tapes to me is this appeal boils down to ripeness. That's what the judges were interested in. All along from my first posts on it about a year ago, I thought ripeness was the main, if not the only issue. But on the AOL side of the ledger, I get the point, if they hadn't filed when they did (6 months), we'd be screaming timelyness during trial or in the appeal. I think AOL had no choice but to file when they did to protect their interests on timelyness. Which brings up Wake. By letting the case go forward, he decided the case was timely and ripe. I really think that if USAPA wins (anyone who lays a guarantee on either side winning is a fool), it will be on issue of ripeness. I don't think a reversal will include the other issues. Courts are supposed to rule on the limited law, not write new law, unless their prone to be activist courts. Don't confuse activist with being the same as liberal. Their been lots of conservative court cases that rewrote federal and state law.

Rakestraw, good-faith, bad-faith, jury instructions, what's allowed in, ligitimate union objective-that's all a bunch of hooey. I think the whole thing is ripeness. Now Clear made a very good counter to ripeness,

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 “harm†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?

Again, good point. I'd say while the pay issue wont be ripe until January, it also won't be arbitrated until after it is ripe. The grievance was denied back in July, but the company denial said USAPA was wrong on contract language, didn't mention ripeness. Ineresting point you bring up, but arbitration has a different set of rules than court cases. In the pay thing, we knew exactly when the damages would start and what they will be. Addington didn't get to make that case as counts 1 and 2 were thrown out.

So back to the one issue that I think will control the case, ripeness. One judge quoted right out of Ramey (the infamous pp 278-279),

"For these reasons we do not require nor even permit union members to bring suit against their union simply because the union has announced their future intentions to breach its duty."
Just in my opinion, for AOL to win, the 9th needs to either find a way around Ramey or outright reverse their previous Ramey decision. If AOL wins, then we got damages and court costs trials to go. If AOL loses on the narrow issue of ripeness, where are we? Injunctions gone for sure along with damage and court cost trials. $1.8 M down the tubes. Odds of finding another Don Stevens to start a new case when it does become ripe? Who knows. Actually, from the notoriety of this case, you might get someone to jump on the case. This is right down the alley of NRTW, but only if the plaintiffs are objectors. The issue of DOH being a "legitimate union objective" regarding vetoing a final and binding arbitration would still in the air. That is a battle to be fought long down the road, if there ever is a DOH contract. But remember, time is on your side. After retirements ramp up in 2012, you'll inherit the union 3 years later. A retrial maybe again will be in Wake's court, but maybe not. I don't know if you have to start it all over again, back to depos, etc, but it's still an expensive thing even if you don't. Second round, I'm sure you'll snag Bradford's testimony.

If AOAL loses on ripeness alone, they've got to look at the overreach of Wake in not just ruling initially that the case was timely, but not ripe. I'd like to hear a reason why Wake couldn't have gone that way. We can all do the what-ifs, but with a AOL loss, the biggest is what if Wake had accepted the case then put it on hold until ripe. If you lose on ripeness alone, it was Wake that wasted your money.

One more issue, arbitration results. I keep reading west posters saying the results have been poor. That's the "big lie" theory, tell a lie often enough and hope people will believe it. So far, we're 1 for 2 on TA disputes. Don't forget, ALPA wrote the TA, not USAPA. You can't count the furlough out of seniority arbitration as a USAPA loss, since that was defaulted on by West side refusal to participate. We're 1 for 2 on discipline/termination cases. The loss was a west termination before USAPA existed. There are 5 filed, awaiting. Results will speak for itself. The biggie, of course, is LOA84/93 pay, wear we rely heavy on ALPA language/intent. We'll see. Meanwhile, you get a lot more credibility sticking with truth on results, not making them up.