US Pilots Labor Discussion

[eastcoast]

When this first came out and I saw the charts that showed my progression I came to the conclusion that I would be better off accepting the Nic and getting a contract instead of fighting this out for years. I also realized that was not the case for some of those that were junior to me, and I understood their frustration and that coupled with viewing the Kirby proposal, there wasn't going to be much to offset that hit. They decided it was better to fight it, so here we are.

So you made the analysis at the time. The thing is, no one expected this to drag out so long. We all thought we'd be off LOA93 by now. So every day that goes by on this bankruptcy contract, the results of that equation changes and more and more pilots reach the tipping point where a decent contract with Nic and the 2/3 attrition would have been better than holding out for DOH and waiting for a trickle of upgrades as attrition kicks back in.

 

[traderjake]

I agreed with you too so you would just shut your mouth and do your job!

I think you are lying about lying to me : )

You wouldn't be so confused if you just told the truth.

 

[Res Judicata]

I think you are lying about lying to me : )

You wouldn't be so confused if you just told the truth.

He's confused because he's an illiterate ADD sufferer still waiting for Lee $e$ham to deliver on his 10 million dollar promise.

You can't fix stupid...but Judge Silver can.

 

[CallawayGolf]

I think that's a fair assessment except for one twist; this is a contract case where the company asks the court to determine their liability if they use or do not use the Nicolau. Liability turns on USAPA's DFR and as you say, the DFR is the West pilots' complaint that can't be made until there is a ratified contract. However, I *think* she could answer Claim I in the reverse: the company would not be liable if they insist upon the contractually agreed to method to integrate seniority which is the Nicolau. THere's ample case law that says either the union or the company can stand on the contract and not violate the RLA. That's not exactly what the company is after, but it's probably the most Judge Silver can do given the 9th's ruling in Addington.

The DJ doesn't ask the court to find USAPA guilty of a DFR in the present tense, it asks the court to evaluate the SLI requirements contained in the TA and determine if a non-NIC would constitute a DFR for the bargaining agent. This is an apples and oranges question compared to Addington I that the Ninth ruled on. The Ninth said they couldn't evaluate the merits because legal harm had not yet occurred. Had they accepted the ripeness claim of Addington, then they would likely have found the DFR had been violated by USAPA. The Company's suit asks the court to go past the ripeness question and determine if a future acceptance of a non-NIC list is a clear violation of the DFR which places them in legal harm. So Silver has the duty and authority to go where the Ninth could not and look at the merits of the Addington DFR claim. Because of this, I believe she will very likely agree with option 1 and declare that any non-NIC list to be a clear DFR. The company has a legal right to relieved of the harm USAPA has placed them in and option 1 is the only one that accomplishes that outcome. We'll see I guess.

 

[USA320Pilot]

Compass Correction Update: November 16, 2011

A Compass Correction

Discovery

From: Gary Hummel 
Sent: Tuesday, November 15, 2011 11:38 AM
To: Board of Pilot Representatives; Officers; Communications
Subject: EVP Report #2

Colleagues,
This email is the second of six emails to the BPR which will serve as the officer report by the USAPA EVP for the BPR telephonic meeting on November 15, 2011. Attached is the court order granting SSMP permission to commence discovery in their lawsuit against Jane and John Doe.
The purpose of this discovery is to identify who was fraudulently sending emails impersonating Nick Granath. The emails implied that SSMP was overbilling USAPA and that Lee Seham had violated his obligation to the union. The emails also contained statements and innuendo asserting that Lee Seham had “buried himself in the bottom of a whiskey bottle,” that SSMP was engaged in “fraudulent billing practices” and had “extorted millions” to the detriment of USAPA.
The court grants discovery to SSMP
Captain Gary Hummel | Executive Vice President |
USAPAUS Airline Pilots Association,
200 East Woodlawn Road, Suite 250, Charlotte, NC 28217877-332-3342 office | 704-804-2724 cell | USAirlinePilots.org
__________________________________________________ _________________
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
SEHAM, SEHAM, MELTZ & PETERSEN LLP, a New York Limited Liability Partnership,
and NICHOLAS PAUL GRANATH, an individual,
Plaintiffs,
v.
JANE DOE and JOHN DOE, as individuals or corporations, Defendants.
__________________________________________________ _________________
USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC #:.__~__
DATE FILED: 10-4-11
MEMORANDUM DECISION
11 CV 6720

Briccetti, J.:
Plaintiffs have commenced this action asserting claims relating to emails sent by defendants Jane Doe and John Doe regarding plaintiffs' law practice. Plaintiffs have moved for leave to take immediate discovery to enable them to identify the Doe defendants. Pending before the Court is plaintiffs' motion for leave to take immediate discovery (Doc. #2), which, for the following reasons, is granted.

BACKGROUND
For purposes of ruling on the motion, the Court accepts all factual allegations of the complaint as true.
Plaintiff Seham, Seham, Meltz Petersen LLP ("SSMP") is a law firm in White Plains, New York. Plaintiff Nicholas Paul Granath is one of SSMP's attorneys based in Minneapolis, Minnesota. Plaintiffs specialize in labor law, representing labor unions composed ofemployees of airline carriers. One oftheir clients is the US Airlines Pilots Association ("USAPA"), which is a union of pilots of US Airways, Inc. USAPA has been a client of SSMP since 2008.
On September 4,2011, at 1 :58 p.m., SSMP managing attorney Louis Meltz received an email from··NickGranathwhec715@hotmail.com ... It contained a photograph of SSMP partner Lee Seham. The text of the email implied that SSMP was overbilling USAP A and that attorney Seham had violated his "obligation to the union." The email was sent without the consent or knowledge of Granath.
On September 19, 2011, at 10:49 a.m., Meltz, as well as several other SSMP attorneys, received another email from "Nick Granath whec715@hotmail.com." This email contained statements and innuendo asserting that Lee Seham had "buried himself in the bottom of a whiskey bottle;" that SSMP, through its managing partner Lee Seham, was engaged in "fraudulent billing practices" and had "extorted millions" to the detriment of USAP A; and that such acts were "plac[ing] all ofhis firms['] loyal and capable lawyers and staff at risk." Plaintiffs were able to determine that the September 19 email originated from IP address
68.207.236.9.
Plaintiffs assert a claim under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and state law claims for fraudulent representation/civil fraud and tortious interference with contractual or business relations.


DISCUSSION
Plaintiffs seek permission pursuant to Federal Rule of Civil Procedure 26(d)(I) to commence discovery prior to the parties conferring pursuant to Rule 26( f). Such relief is appropriate when good cause warrants it. See Ayyash v. Bank AI-Madina, 233 F.R.D. 325,326
(S.D.N.Y. 2005); Directory Assistants, Inc. v. Doe, 2010 U.S. Dist. LEXIS 41881, at *1 (D. Conn. Apr. 28, 2010).1
As Judge Lynch noted in Ayvash, courts previously utilized a four-part test set forth in Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y 1982), akin to the standard for a preliminary injunction, to determine whether discovery should proceed prior to the parties' conference. Over the last ten years or so, however, courts have used a "good cause" standard. See Ayyash v. Bank AI-Madina, 233 F.R.D. at 326 (citing cases); Directory Assistants, Inc. v.
The Court finds good cause to permit plaintiffs to commence discovery at this stage to discover defendants' identities. Plaintiffs assert they have diligently attempted to uncover defendants' identities by contacting various internet service providers ("ISP"). Plaintiffs represent that defendants' ISP -the one that holds defendants' identities -has informed plaintiffs that it will not reveal defendants' identities without a court order. Furthermore, according to plaintiffs, the ISP has informed them that it does not keep the information plaintiffs seek for long. Therefore, the need for discovery on an expedited basis is particularly acute given that plaintiffs must secure defendants' identities before such information is overwritten by the ISP and lost. Finally, the Court accepts plaintiffs' representations that they have no other mechanism for discovering defendants' identities.
Although plaintiffs have not yet served defendants with the summons and complaint, plaintiffs' narrow discovery should, ifsuccessful, give them sufficient information to serve defendants and permit this action to proceed.


CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiffs' motion for leave to take immediate discovery (Doc. #2).

The Clerk is instructed to terminate this motion.
Dated: October ~,2011 White Plains, New York
Vincent L. Briccetti United States District Judge
Doe, 2010 U.S. Dist. LEXIS 41881, at *1 n.1 (citing cases).

 

[SparrowHawk]

I'm sorry but why post a Motion for Discovery?

The Discovery phase in litigation is about the same as brushing your teeth when you get dressed in the morning in that it happens all the time and is no big deal.

 

[aquagreen73s]

The DJ doesn't ask the court to find USAPA guilty of a DFR in the present tense, it asks the court to evaluate the SLI requirements contained in the TA and determine if a non-NIC would constitute a DFR for the bargaining agent. This is an apples and oranges question compared to Addington I that the Ninth ruled on. The Ninth said they couldn't evaluate the merits because legal harm had not yet occurred. Had they accepted the ripeness claim of Addington, then they would likely have found the DFR had been violated by USAPA. The Company's suit asks the court to go past the ripeness question and determine if a future acceptance of a non-NIC list is a clear violation of the DFR which places them in legal harm. So Silver has the duty and authority to go where the Ninth could not and look at the merits of the Addington DFR claim. Because of this, I believe she will very likely agree with option 1 and declare that any non-NIC list to be a clear DFR. The company has a legal right to relieved of the harm USAPA has placed them in and option 1 is the only one that accomplishes that outcome. We'll see I guess.

You're misquoting me. The company's liability turns on USAPA's DFR. She said so on page 2 of Doc 125:

1) USAPA’s seniority proposal (i.e., strict “date of hire”) breaches its duty under the
Railway Labor Act and its duty of fair representation and US Airways cannot adopt
it;
2) USAPA’s seniority proposal does not breach its duty under the Railway Labor Act
and its duty of fair representation and US Airways may adopt it; or
3) US Airways will not be liable to the West Pilots regardless of which seniority
proposal it adopts.

What you outline is a possibility, but I think it's unlikely for the same reasons Jim outlined. The DFR claim is something that can only be asserted by union members. The company's liability is connected to that claim should they deal with the union and effect an outcome which is a DFR. But that doesn't change the fact that the claim can only come from the membership which, as applied to the West, cannot occur until there is a ratified contract. The only safe way for Silver to answer this is the negative, and tell the company what isn't a breach of the RLA which is for the company to stand on their right to insist on the contract (T/A). The position you're taking is really what Wake and Bybee took (and one I agree iwith), but that's clearly not the result from Addington.

 

[BoeingBoy]

The only potentially big deal I see is that both the documents posted so far have potentially been kept from the pilots and BPR for over a month. Or not, as neither says when the EVP became aware of or received them. Maybe one of the remaining 4 messages from the EVP will clarify the timeline.

Jim

 

[cactusboy53]

Would it help to go back into arbitration and redo the list?

So you want to "help" this along by arbitrating a FINAL & BINDING arbitration and "redo the list" as it is percieved to be unfair by one particular group. Sorry fly, but PASS. There are no do-overs in Final & Binding Arbitration. The unaltered Nicolau Award is the compromise.

 

[Pi brat]

The thing is, no one expected this to drag out so long.

Yeah, I pretty much did.

You know something interesting? I was on a certain 320 pilot's board for a while, and one of the guys that was screaming the loudest about not getting a contract was a pilot from BOS that voted for USAPA! That wouldn't be you, would it?

 

[Pi brat]

Compass Correction Update: November 16, 2011

A Compass Correction

Hey, welcome back! Care to answer my posts or did you just drop in share your little packages, as usual?

 

[Pi brat]

Hey, welcome back! Care to answer my posts or did you just drop in share your little packages, as usual?

Huh, must have had to land...........

 

[Beancounter]

Here you go scab clowns, you eastholes starting to get a clue at what the new lawyers are saying?


"Fellow Pilots,

We all recognize that our pilot group has so far been unable to bridge our internal differences regarding the best way to address our collective seniority concerns. Seniority is perhaps the most important issue facing our Union. Not a day goes by that we have not been focused on seeking a just resolution of that issue. I have spoken with many of you about this problem looking for collaborative solutions and believe that it is time for us to think outside the box to resolve the crisis that prevents us as a union from working together to achieve our primary goal -- an industry standard contract. We must find a way for us all to come to an agreement on a single integrated seniority list. I recognize that this is the "electric third rail" at USAPA, but I am prepared to embrace it because I know that tackling this festering, longstanding, and seemingly impossible problem head-on is the only way for us -- all of us -- to move forward.

Every pilot knows that it is our collective failure to find a resolution to this issue that prevents us from moving forward. (While, as we have stated many times, the Company is absolutely free to sign a joint contract at any time, the Company uses the lack of an agreed-upon seniority system as a convenient excuse to delay negotiations.) We cannot be effective unless we are able to work together. No one can realistically believe that we can either reach agreement with the Company on a new contract or persuade the NMB to give us a release unless we find a solution to the seniority issue that has the general support of all our pilots.

There is no magic solution. We cannot sit waiting for some prophet to appear and hand us the answer. Six years have passed since the merger was announced and there has been no resolution.

Likewise, litigation is not the answer. Collectively we have spent too much on legal battles that have taken years without finding any answer. The Declaratory Judgment action may or may not decide either that USAPA has the authority to negotiate something other than the Nicolau Award or not. But even if there is a decision, and even if it comes sooner rather than later, neither alternative will solve the problem. If USAPA prevails, the West pilots will not magically drop their opposition to a DOH-based list. If the West pilots prevail, the East pilots will not magically embrace an award that puts probationary West pilots ahead of East pilots with 16 years of service. We will still need a contract and that contract will still need to be ratified. And no one can realistically believe that ratification is possible unless we agree -- together -- on an integrated seniority list with appropriate restrictions and conditions.

For these reasons, I have proposed to the Board of Pilot Representatives, and the BPR (with the Phoenix Representatives recusing themselves) has agreed, to direct our legal representatives in the Phoenix Declaratory Judgment to ask the Court to urge the parties -- the West Pilots and USAPA -- to enter into a process of mediation aimed at producing a mutually agreeable integrated seniority list. This process would not impose a solution. It would be a voluntary process where parties would mutually agree upon a nationally recognized mediator and any result of the mediation would require the independent approval of both parties. In other words, the mediation could only conclude successfully if both the West pilots and USAPA (representing those pilots not in the "class", i.e., the East pilots) agreed to the mediator's suggested solution. In the event the process did not create a mutually agreed solution, both sides could still avail themselves of the available legal process.

This is a serious proposal. It is not window dressing. Nor should it be taken as a sign that USAPA has any less conviction that the Court will decide that seniority is a mandatory subject of negotiations. Quite the contrary, we are confident of the eventual legal outcome, however we also understand just how long that process may take, and I don't believe any of us can afford to wait for a legal decision that, even if it comes, will not solve our problem.

I believe this process provides the best vehicle for finding an answer. We must find a solution that will permit the majority of all of our pilots, East and West alike, to move forward with a mutually satisfactory seniority solution behind us. Once that has been achieved, we will be able to work together to deal with the true impediment to all of our career expectations: US Airways management that has for so long been indifferent to the needs of our pilot group and would no longer be able to capitalize on the internal issue that has handicapped us all for far too long. The people of Northern Ireland managed to put years of bitter fighting aside and find a solution to a long and violent dispute. I believe that if they can do it, there is something in each of us and all of us that allows us to put aside these years of differences and work together for the good of all. Let's check the intransigent rhetoric at the door; let's go secure our collective future. I urge all pilots - East and West - to support this process and indicate to their Representatives that they do so as well.

Sincerely,


Captain Mike Cleary
President "

Oh, cmon' this is the most transparent, stupid thing. It's like Obama saying he's going to tax the rich, It makes him look good for elections, but he knows darn well the Republicans can and will stop it.

Cleary knows that after attacking and alienating the west for so long he's either going to get dropped trousers or an 1800 finger salute. Then he can blame it on the west and say it's all our fault for not wanting to negotiate. WE DID WANT TO NEGOTIATE! The east stuck to DOH and we went to arbitration. Arbitration? Isn't that kinda like mediation? Hmmmmmmm.

 

[SparrowHawk]

Oh, cmon' this is the most transparent, stupid thing. It's like Obama saying he's going to tax the rich, It makes him look good for elections, but he knows darn well the Republicans can and will stop it.

Cleary knows that after attacking and alienating the west for so long he's either going to get dropped trousers or an 1800 finger salute. Then he can blame it on the west and say it's all our fault for not wanting to negotiate. WE DID WANT TO NEGOTIATE! The east stuck to DOH and we went to arbitration. Arbitration? Isn't that kinda like mediation? Hmmmmmmm.

I'm not so sure I agree.

Sounds an awful lot like backpedaling to me as frankly you give Cleary to much credit

 

[Move2CLT]

aqua,

IMHO I don't think the East pilots will have a problem with a Wye River II type mediated negotiation as long as the objectives are to end the seniority dispute, accelerate contract negotiations, and end costly litigation which all would benefit the pilot group as a whole. I don't think the company or the court would have any objections to compromise/settlement talks either.

And yes you can be sure USAPA will follow their constitutional mandate and bylaws:

To maintain uniform principles of seniority based on date of hire and the perpetuation thereof, with reasonable conditions and restrictions to preserve each pilot’s un-merged career expectations.

I agree with Jim that the negotiations will focus on what "reasonable" C&R's would it take to get 51% of the West pilots to accept by vote a DOH list. Rational West pilots will vote for riding East attrition to accelerated upgrades and higher paying Captain and widebody positions instead of the indefinite stagnation and uncertain litigation of chasing Nic. Integration only benefits West pilots so it makes no difference to East pilots whether the West agrees to any particular seniority list or not.

You can say it has to be Nic but until Congress appoints you King Decider of Seniority Lists your path to Nic is a dead end.

underpants

USAPA IS NO LONGER PURSUING A WYE II.