US Pilots Labor Discussion 6/2- STAY ON TOPIC AND OBSERVE THE RULES

[oldiebutgoody]

Heard a west guy (belive it was an F/O) got his clocked cleaned in a fight in the Sim building (east) after mouthing off to an east guy for a while, supposedly security and the cops were called, anyone else hear of this incident?

I heard a lot of west guys got their clocks cleaned on Friday. It happened in the circuit court building in SFO. They're still in tears over it.

 

[Black Swan]

For those that are claiming a CBA without the NIC is the starting point of DFR.....

What does this mean to you???

Indeed, the Supreme Court case that clarified that the DFR
was applicable during contract negotiations articulated its
holding in terms that imply a claim can be brought only after
negotiations are complete and a “final product” has been
reached. See Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S.
65, 78 (1991) (“[T]he final product of the bargaining process
may constitute evidence of a breach of duty only if it can be
fairly characterized as so far outside a ‘wide range of reasonableness,’
that it is wholly ‘irrational’ or ‘arbitrary.’ ” (quoting
Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953))).

Page 13 of 26 of the decision....

Kinda implies that, once a CBA is voted in, as long as what is contained within it, Including Section 22, is within a wide range of reasonableness (not the narrow band width of West pilots Ideas) that is wholly not irrational or arbitrary, the union will be determined to have upheld it's DFR.

And DOH with fences is going to meet this criteria of fair and reasonable. You can easily make the case the ENTIRE airline, with the exception of the pilots did it this way. The Nic is not required now. This is absolutely clear. Wait until the West proposes what they want to do in light of how past mergers here went, and the rest of the airline. You will easily be able to turn the damages argument right around on them when they wheel their plan out. Especially without the Desert Judge in their back pocket.

 

[Black Swan]

Only if you fly the airplane empty - the Flight Attendants have a TA too.

No new crew bases in each others domiciles
No TDY either
All known flying as of Sept 22, 2005 to remain with the respective employees

Maybe he wants us to fly freight...........

 

[Black Swan]

I thank USAPA for 5 years of making $85 hour under the worst contract in the industry.

It was ALPA and the pilots who voted for LOA 93.USAPA had nothing to do with this.

 

[Crzipilot]

Just a quick recap for those that claim to have read the decision, but keep coming from Left Field with some ideas......

Not sure how much clearer some of the words in the decision could be.....

[8] Plaintiffs seek to escape this conclusion by framing
their harm as the lost opportunity to have a CBA implementing
the Nicolau Award put to a ratification vote. Because
merely putting a CBA effectuating the Nicolau Award to a
ratification vote will not itself alleviate the West Pilots furloughs,
Plaintiffs have not identified a sufficiently concrete
injury.2 Additionally, USAPA’s final proposal may yet be one
that does not work the disadvantages Plaintiffs fear, even if
that proposal is not the Nicolau Award.3


Indeed, the Supreme Court case that clarified that the DFR
was applicable during contract negotiations articulated its
holding in terms that imply a claim can be brought only after
negotiations are complete and a “final product” has been
reached. See Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S.
65, 78 (1991) (“[T]he final product of the bargaining process
may constitute evidence of a breach of duty only if it can be
fairly characterized as so far outside a ‘wide range of reasonableness,’
that it is wholly ‘irrational’ or ‘arbitrary.’ ” (quoting
Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953))).

Page 13 of 26 of the decision....

8. (cont) The dissent asserts that “nothing would be gained by postponing a
decision, and the parties’ interest would be well served by a prompt resolution of the West Pilots’ claim.” Diss. op. at 8017 (internal alterations,quotation marks, and citation omitted). To be sure, the parties’ interest
would be served by prompt resolution of the seniority dispute, but that is
not the same as prompt resolution of the DFR claim. The present impasse,
in fact, could well be prolonged by prematurely resolving the West Pilots’
claim judicially at this point. Forced to bargain for the Nicolau Award, any
contract USAPA could negotiate would undoubtedly be rejected by its
membership. By deferring judicial intervention, we leave USAPA to bargain
in good faith pursuant to its DFR, with the interests of all members
— both East and West — in mind, under pain of an unquestionably ripe
DFR suit, once a contract is ratified.

3We do not address the thorny question of the extent to which the
Nicolau Award is binding on USAPA. We note, as the district court recog-
nized, that USAPA is at least as free to abandon the Nicolau Award as was
its predecessor, ALPA. The dissent appears implicitly to assume that the
Nicolau Award, the product of the internal rules and processes of ALPA,
is binding on USAPA. See Diss op. at 8021-22.


It seems as though discussion point 8, takes care of the West's assumed threat of DFR liability talked about in foonote 1.

Seems as though the court recognizes the fact, that negotiating for a contract including the NIC is useless. They task USAPA with negotiating within their DFR for a contract, with the fact in mind that ripeness will be reached WHEN A CONTRACT IS RATIFIED.

In Addition once a CBA is voted in, as long as what is contained within it, Including Section 22, is within a wide range of reasonableness (not the narrow band width of West pilots Ideas) that is wholly not irrational or arbitrary, the union will be determined to have upheld it's DFR.

 

[cleardirect]

For those that are claiming a CBA without the NIC is the starting point of DFR.....

What does this mean to you???

Indeed, the Supreme Court case that clarified that the DFR
was applicable during contract negotiations articulated its
holding in terms that imply a claim can be brought only after
negotiations are complete and a “final product” has been
reached. See Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S.
65, 78 (1991) (“[T]he final product of the bargaining process
may constitute evidence of a breach of duty only if it can be
fairly characterized as so far outside a ‘wide range of reasonableness,’
that it is wholly ‘irrational’ or ‘arbitrary.’ ” (quoting
Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953))).

Page 13 of 26 of the decision....

Kinda implies that, once a CBA is voted in, as long as what is contained within it, Including Section 22, is within a wide range of reasonableness (not the narrow band width of West pilots Ideas) that is wholly not irrational or arbitrary, the union will be determined to have upheld it's DFR.

Boys, boys, boys. You got this one right. DFR is not just about seniority. Our DFR case will be about the entire contract as you like to point out the final product. What did judge Wake say during the trial the east pilots are going to need to look at the contract as a whole and decide if the gains made in other areas is enough to off set your distaste the Nicolau.

Guess what it works the same way with us. The ninth said that;

By deferring judicial intervention, we leave USAPA to bargain in good faith pursuant to its DFR, with the interests of all members — both East and West — in mind, under pain of an unquestionably ripe DFR suit, once a contract is ratified.

You do understand that sentence says that if usapa were to use the same methodology as the first offer the court will find usapa unquestionably guilty of DFR. By definition arbitrations are fair. So anything other than the Nicolau will be considered less than fair.

Now we balance that with the rest of the contract. The east does not want the comparison made in court. Take a look at the dispatchers arbitration that you are all so found of using. The reason it was DOH was because the west dispatchers were going to get a big raise so it balanced DOH seniority.

In the case of the pilots. 90% of the benefit of this next contract is going to go to the east. So even if we get Nicolau 90% of the pay and benefits goes to the east to bring you up to parity and a small raise for the west. 10 more days of vacation for the east nothing for the west. Work rules improved on the east not so much on the west. Short term sick, if we go to east way it is a decrease for the west. If we use the west way the east will get paid for your sick bank the west gets nothing but what we have now. The latest scam to transfer money is the parity demand. 95% of any parity payment would go to the east.

If we go down the list of advantages and disadvantages in front of a jury the benefits add up pretty quickly for the east and the unfairness adds up pretty quick for the west. Now throw in a seniority list that was built by the very people that are also getting 90% of the benefit of the entire contract. Instant DFR. We use the dispatchers arbitration and explain why they got paid but not seniority. While the east pilots want to get paid and have the seniority.

What exactly are the west pilots getting out of this contract? How is this contract that usapa is negotiating fair to the west. It will not be the east pilots that get to decide what is fair it will be a jury that will look at pure numbers and decide how does 90% and seniority vs. only 10% seem fair. Is it within a wide range of reasonableness for the majority to take 90% plus seniority leaving 10% of the money and none of the upgrades or opportunities? The jury is not going to care about what happened in 1980 or 1990 or 2000 and that you want to make up for a poor career at the expense of the west. They are going to look at what happened in 2005 -2010 and if the west has been treated fairly and gotten a balanced benefit from this merger. So fair I would say it has been an unfair and lope sided deal.

But go ahead and turn over the DOH list and add to the harm and secure the DFR.

 

[Black Swan]

Just a quick recap for those that claim to have read the decision, but keep coming from Left Field with some ideas......

Not sure how much clearer some of the words in the decision could be.....

[8] Plaintiffs seek to escape this conclusion by framing
their harm as the lost opportunity to have a CBA implementing
the Nicolau Award put to a ratification vote. Because
merely putting a CBA effectuating the Nicolau Award to a
ratification vote will not itself alleviate the West Pilots furloughs,
Plaintiffs have not identified a sufficiently concrete
injury.2 Additionally, USAPA’s final proposal may yet be one
that does not work the disadvantages Plaintiffs fear, even if
that proposal is not the Nicolau Award.3


Indeed, the Supreme Court case that clarified that the DFR
was applicable during contract negotiations articulated its
holding in terms that imply a claim can be brought only after
negotiations are complete and a “final product” has been
reached. See Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S.
65, 78 (1991) (“[T]he final product of the bargaining process
may constitute evidence of a breach of duty only if it can be
fairly characterized as so far outside a ‘wide range of reasonableness,’
that it is wholly ‘irrational’ or ‘arbitrary.’ ” (quoting
Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953))).

Page 13 of 26 of the decision....

8. (cont) The dissent asserts that “nothing would be gained by postponing a
decision, and the parties’ interest would be well served by a prompt resolution of the West Pilots’ claim.” Diss. op. at 8017 (internal alterations,quotation marks, and citation omitted). To be sure, the parties’ interest
would be served by prompt resolution of the seniority dispute, but that is
not the same as prompt resolution of the DFR claim. The present impasse,
in fact, could well be prolonged by prematurely resolving the West Pilots’
claim judicially at this point. Forced to bargain for the Nicolau Award, any
contract USAPA could negotiate would undoubtedly be rejected by its
membership. By deferring judicial intervention, we leave USAPA to bargain
in good faith pursuant to its DFR, with the interests of all members
— both East and West — in mind, under pain of an unquestionably ripe
DFR suit, once a contract is ratified.

3We do not address the thorny question of the extent to which the
Nicolau Award is binding on USAPA. We note, as the district court recog-
nized, that USAPA is at least as free to abandon the Nicolau Award as was
its predecessor, ALPA. The dissent appears implicitly to assume that the
Nicolau Award, the product of the internal rules and processes of ALPA,
is binding on USAPA. See Diss op. at 8021-22.


It seems as though discussion point 8, takes care of the West's assumed threat of DFR liability talked about in foonote 1.

Seems as though the court recognizes the fact, that negotiating for a contract including the NIC is useless. They task USAPA with negotiating within their DFR for a contract, with the fact in mind that ripeness will be reached WHEN A CONTRACT IS RATIFIED.

In Addition once a CBA is voted in, as long as what is contained within it, Including Section 22, is within a wide range of reasonableness (not the narrow band width of West pilots Ideas) that is wholly not irrational or arbitrary, the union will be determined to have upheld it's DFR.

Beautiful posting Crziplt. This entire issue became so clear, and we can thank Leonidas and Wake for the heavy lifting.Had they not prematurely adjudicated, this entire matter would have taken a lot longer. What more could you ask for with the 9th being abundantly clear? Especially the Nicolau discussion. A GEM! The west is entirely focused on their winnings in the Wake Kangaroo Court. They don't get the fact the ENTIRE pilot group has to be dealt with. This is where they lose the big prize, they are going to again, go after the Nic like it is some set in stone mandate. They are standing knee deep in quicksand, and sinking deeply. This whole deal with the Nic is OVER.

 

[Crzipilot]

See, though, even with DOH with CandR's, you'll have all your upgrades you were expecting. That's the great thing. You'll also have the furloughs that you were expecting.

Fair and resonableness, I bet is measured from what the common man would consider as such, and not a starting point of NIC.

I guess the stability of being merged into a larger airline, with a large East coast presence doesn't gain any advantage do the west pilots, Whom as we look back, would probably have been downsized even more so, except for the min fleet / block hour protection they are currently enjoying.

I see you seem to be on the negotiating com. Can you tell us what other details of this contract we are going to see are going to have in it???

It would seems you keep looking at fairness, in the sense of what is fair for me. I believe if you look back at history, fairness for DFR, has a wider catch range than that. How many true DFR cases have been won in the past? Some, not many I'm sure....


So your instant DFR, if the west doesn't go 50% above what they have, instant DFR..... Maybe in front of a jury, the kirby proposal can be shown, with the West guys comments and history saying we should have voted on that because it was fair, and compare that proposal with what we eventually get to vote on??? I bet if there's anything higher than the kirby a normal man would consider all of that would be fair to the west. USAPA gets more than what they were willing to vote on in the first place....Hmmmmm......

Seems the tables can go either way.......guess ya gotta wait until the NMB process runs it's course and we see if a contract is actually voted in.... Until then, enjoy the heat in PHX.....

 

[Black Swan]

Boys, boys, boys. You got this one right. DFR is not just about seniority. Our DFR case will be about the entire contract as you like to point out the final product. What did judge Wake say during the trial the east pilots are going to need to look at the contract as a whole and decide if the gains made in other areas is enough to off set your distaste the Nicolau.

Guess what it works the same way with us. The ninth said that;



You do understand that sentence says that if usapa were to use the same methodology as the first offer the court will find usapa unquestionably guilty of DFR. By definition arbitrations are fair. So anything other than the Nicolau will be considered less than fair.

Now we balance that with the rest of the contract. The east does not want the comparison made in court. Take a look at the dispatchers arbitration that you are all so found of using. The reason it was DOH was because the west dispatchers were going to get a big raise so it balanced DOH seniority.

In the case of the pilots. 90% of the benefit of this next contract is going to go to the east. So even if we get Nicolau 90% of the pay and benefits goes to the east to bring you up to parity and a small raise for the west. 10 more days of vacation for the east nothing for the west. Work rules improved on the east not so much on the west. Short term sick, if we go to east way it is a decrease for the west. If we use the west way the east will get paid for your sick bank the west gets nothing but what we have now. The latest scam to transfer money is the parity demand. 95% of any parity payment would go to the east.

If we go down the list of advantages and disadvantages in front of a jury the benefits add up pretty quickly for the east and the unfairness adds up pretty quick for the west. Now throw in a seniority list that was built by the very people that are also getting 90% of the benefit of the entire contract. Instant DFR. We use the dispatchers arbitration and explain why they got paid but not seniority. While the east pilots want to get paid and have the seniority.

What exactly are the west pilots getting out of this contract? How is this contract that usapa is negotiating fair to the west. It will not be the east pilots that get to decide what is fair it will be a jury that will look at pure numbers and decide how does 90% and seniority vs. only 10% seem fair. Is it within a wide range of reasonableness for the majority to take 90% plus seniority leaving 10% of the money and none of the upgrades or opportunities? The jury is not going to care about what happened in 1980 or 1990 or 2000 and that you want to make up for a poor career at the expense of the west. They are going to look at what happened in 2005 -2010 and if the west has been treated fairly and gotten a balanced benefit from this merger. So fair I would say it has been an unfair and lope sided deal.

But go ahead and turn over the DOH list and add to the harm and secure the DFR.

You just made the East argument as to why it was so foolhardy to keep the East on LOA 93 and not insist on parity. We told you it would come back to bite, and it surely has. You reap what you sow.........How are you going to say you were damaged when you guys are right out in the open advocating this? Incredible.

 

[Black Swan]

Between the MDA issue coming to a head, and the possibility of LOA 84 pay coming, and the 9th- the West better get some good advice and fast. Things are changing by the minute, and not in a good way if you are West. If you go en banc with the damages issue, we will know for sure you are finished. That is some really bad advice you are getting about ripeness.

 

[Crzipilot]

From some press releases........ I guess even reporters can read....Sometimes..

But on Friday, a three-judge panel of the 9th U.S. Circuit Court of Appeals said it's too soon to say that the union has harmed the America West pilots, and it ordered the case dismissed.

For them to make a claim, a new contract ignoring the arbitrator's award would have to be ratified, two of the judges ruled. Until that happens it's just speculation to say the America West pilots will be harmed by the union's plans, the majority opinion said. Even if the union doesn't follow the arbitrator's decision, the contract it negotiates with the company might not be as bad as the America West pilots fear, the judges wrote.

Significantly, the appeals court appeared to suggest that the Nicolau award might never be implemented, if USAPA can design a contract with alternative protections for west pilots.

"Even under the district court's injunction mandating USAPA to pursue the Nicolau Award, it is uncertain that the west pilots' preferred seniority system ever would be effectuated,"("Clearednotice how the NIC is called the West pilots PREFERRED system, and NOT the ONLY FAIR one??? )the ruling said. It is possible that USAPA will eventually implement a contract "that does not work the disadvantages plaintiffs fear, even if that proposal is not the Nicolau Award," the appeals court said.

The ruling said that so far, west pilots have not been harmed -- even though some west pilots have been furloughed -- and would not have been had the arbitrator's ruling been implemented. It is "speculative" to say that a contract that includes the ruling would have been ratified, the appeals court stated.

 

[cleardirect]

From some press releases........ I guess even reporters can read....Sometimes..

But on Friday, a three-judge panel of the 9th U.S. Circuit Court of Appeals said it's too soon to say that the union has harmed the America West pilots, and it ordered the case dismissed.

For them to make a claim, a new contract ignoring the arbitrator's award would have to be ratified, two of the judges ruled. Until that happens it's just speculation to say the America West pilots will be harmed by the union's plans, the majority opinion said. Even if the union doesn't follow the arbitrator's decision, the contract it negotiates with the company might not be as bad as the America West pilots fear, the judges wrote.

Significantly, the appeals court appeared to suggest that the Nicolau award might never be implemented, if USAPA can design a contract with alternative protections for west pilots.

"Even under the district court's injunction mandating USAPA to pursue the Nicolau Award, it is uncertain that the west pilots' preferred seniority system ever would be effectuated,"("Clearednotice how the NIC is called the West pilots PREFERRED system, and NOT the ONLY FAIR one??? )the ruling said. It is possible that USAPA will eventually implement a contract "that does not work the disadvantages plaintiffs fear, even if that proposal is not the Nicolau Award," the appeals court said.

The ruling said that so far, west pilots have not been harmed -- even though some west pilots have been furloughed -- and would not have been had the arbitrator's ruling been implemented. It is "speculative" to say that a contract that includes the ruling would have been ratified, the appeals court stated.

As I said the entire contract has to be fair. The last set of C&R were already found to be unfair. usapa is incapable of knowing what fair is. Add to that 90% of the economics go to the east. Not in the wide range of reasonableness. The west pilots WILL be disadvantaged. The court was fooled into thinking that this is your normal union with all best interests in mind. They did not understand it was designed to disadvantage the west.

DFR!

 

[HPearlyretiree]

What a time to take a long weekend. I don't agree with the court, but that's life.

Still trying to sort this out, busy week though, running some investigations and trying to get 250 angry people signed up with benefits.

But, if I were Parker, I'd be smiling, because there isn't gonna be a contract for a while

Flame on

 

[Crzipilot]

As I said the entire contract has to be fair. The last set of C&R were already found to be unfair. usapa is incapable of knowing what fair is. Add to that 90% of the economics go to the east. Not in the wide range of reasonableness. The west pilots WILL be disadvantaged.

DFR!

Go back and look at some case law regarding DFR.....Briefly looked at O'neil vs ALPA, had some interesting statements regarding a decision that was unfair to some strike breakers. Court found in defense of ALPA even though those strike breakers thought they were treated unfairly....

Small excerpt here.....

Respondents are a group of pilots who are dissatisfied with petitioner's settlement of the unsuccessful strike against Continental.

Contending that petitioner's settlement of the strike resulted in less favorable terms for striking pilots and the Union could have achieved by a unilateral decision simply to return to work.

Respondents sued petitioner for, among other things, breach of the Union's duty of fair representation.

Respondents argued that petitioner had breached that duty by arbitrarily settling the strike in an incompetent manner.

The District Court granted summary judgment to petitioner; the court ruled that there was no evidence that petitioner had acted in bad faith or had discriminated against any of its constituents.

The court held that the duty of fair representation does not protect Union members against inadequate representation so long as the Union has acted in good faith and not discriminated.

The Court of Appeals reversed.

It held that the duty of fair representation has three distinct components.

The Union breaches the duty if its conduct is either discriminatory, taken in bad faith, or arbitrary.

The court held that a jury could find that petitioner's conduct was arbitrary because it could find that the petitioner had settled the strikes on terms that were less favorable than could have achieved by simply terminating the strike.

We now reverse the Court of Appeals.

We hold that the court was correct in ruling that the Union breaches its duty if its actions whether made in the course of processing grievances or negotiating agreements are either arbitrary, discriminatory, or in bad faith.

We conclude, however, that the court committed error in its elaboration and application of the arbitrariness component of the fair representation duty.

The Union's actions are arbitrary only if in light of the factual and legal landscape at the time of the actions, the Union's behavior is so far outside a wide range of reasonableness that it can fairly be called irrational.

The mere fact that, in retrospect, petitioner's settlement of the strike proved less advantageous, and abandonment of the strike does not mean that the Union acted irrationally in securing the settlement.

The legal consequences of the unilateral return to work were not clearly established at the time of the settlement and the agreement avoided potentially lengthy and conceivably unsuccessful litigation.

Our opinion is unanimous.


"NO DFR!!!!!!"

 

[Black Swan]

As I said the entire contract has to be fair. The last set of C&R were already found to be unfair. usapa is incapable of knowing what fair is. Add to that 90% of the economics go to the east. Not in the wide range of reasonableness. The west pilots WILL be disadvantaged. The court was fooled into thinking that this is your normal union with all best interests in mind. They did not understand it was designed to disadvantage the west.

DFR!

USAPA, designed to disadvantage the West. Your opinion. And your opinions , especially about Wake and Nic were proven to be false. I will add this to the long list, Try and use the Nic on the East, remember- it goes against the USAPA constitution. Please let us know when you en banc. I really want to hear how you try and explain ripeness after the 9th pretty much cleared your smoke.