US Pilots Labor Discussion

[Bear96]

Nope. You still don't get it. USAPA inherited all of the ratified agreements from ALPA. Since the seniority provision lives in the Pilot Contract, a previously unratified document, USAPA can negotiate, in good faith, that provision, just as any other provision of the contract.

I sorta agree with you on this. However, I will emphasize the "in good faith" wording you used, and add subject to the DFR and any court orders.

Anyway. Let me ask you this. Suppose Mr. A sues Mr. B for something-or-other. They settle. B agrees to pay A $X to make the lawsuit go away. They and their lawyers sign off on the settlement agreement.

Later, when it is time for B to pay A the settlement amount, B decides he does not like the terms of the agreement. He does not want to pay so much. So he has a brilliant idea: He fires the lawyer who represented him, and tells A that since he fired that lawyer, any agreement that lawyer signed on his behalf is now worth nothing. Poof, the settlement agreement goes away as if it never really happened. It lives only in the private settlement agreement between them instead of in a statute or court decision or whatever. B can therefore renegotiate anything he wants to since he now has a different representative and the previous agreement was never really "official."

Is this a winning position?

 

[700UW]

Absolutely WRONG. If you are in one of the industries covered by the RLA, it does not matter whether you are unionized or not. You STILL are regulated under the RLA. Ask the Delta FAs:

SUBCHAPTER II-CARRIERS BY AIR

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in title 26 section 410; title 29 section 213; title 49 App. section 1371.

§ 181. Application of subchapter I to carriers by air

All of the provisions of subchapter I of this chapter except section 153 of this title are extended to and shall cover every common carrier by air engaged in interstate or foreign commerce, and every carrier by air transporting mail for or under contract with the United States Government, and every air pilot or other person who performs any work as an employee or subordinate official of such carrier or carriers, subject to its or their continuing authority to supervise and direct the manner of rendition of his service.

(May 20, 1926, ch. 347, §201, as added Apr. 10, 1936, ch. 166, 49 Stat. 1189.)



You need to do your homework.

Things imposed under bankruptcy operations are something entirely different. Once the company emerges, it is governed by an agreement under the RLA. It may be the imposed rules until a new agreement can be negotiated, but it is an agreement.

You have no idea of what your talking about, non-union workers are not covered under the RLA, call the NMB and they will tell you.

Agreement means two parties reach an understanding, imposing which NWA did, is not an agreement it is self-help.

You really make a fool of yourself, if the RLA covers only unionized employees in the industry.

 

[Pi brat]

Therefore, one can't ignore the fact (yes, fact) that the HP pilots' expectations were more likely to be fulfilled than "old" US pilots' expectations.

That is not a fact. No one can say what WOULD have happened, because it didn't HAPPEN. You can lay odds, but I don't see anybody in Vegas taking bets on things that will never happen. Absent the merger a lot of people think AWA would have disappeared, including one guy that has more info. than any of us, Doug Parker. Did you catch the blurb in the last crew news that AWA's model did not work any more?

Everything changed on May 19 2005. What was or was not before that really doesn't matter and what MIGHT have happened is conjecture. The fact is, both airlines were operating at the time of the merger, and both brought things to the table.

What happened at PI the day before the US merger didn't matter after the merger, did it?

 

[MUTATIS MUTANDIS]

BEAR96, UA just called and said you can come back with your number as an F/a if you can take time off from giving legal advice, heck you and HPfa could get together! MM!

 

[Pi brat]

At the time AWA was showing profits.

About a month ago I provided you links that showed that was not really true. In the quarters just before the merger only a net profit on special items, but you refuse to acknowledge it then or now and keep the same old line of B.S. You guys live in a fantasy world.

 

[BoeingBoy]

Everything changed on May 19 2005. What was or was not before that really doesn't matter and what MIGHT have happened is conjecture. The fact is, both airlines were operating at the time of the merger, and both brought things to the table.

I agree completely. It's the East that keeps bringing up the "expectations" thing, based on events that happened because of the merger like recalling the furloughees to fly airplanes added to East flying that weren't scheduled for delivery to US on May 19, 2005.

Jim

 

[Pi brat]

I agree completely. It's the East that keeps bringing up the "expectations" thing, based on events that happened because of the merger like recalling the furloughees to fly airplanes added to East flying that weren't scheduled for delivery to US on May 19, 2005.

Jim

Well, let this east pilot say it: Absent this merger I don't think we would have been around to argue about it. What I have a problem with is the thinking that because of that, some west pilots feel that they deserve more of the pie going forward and they want it NOW. I think AWA was not sustainable in it's 2005 form, so what would have been should not have been an issue.

 

[700UW]

Hey Oldie, read this and learn:

The Railway Labor Act consists of four separate purposes: "First, the avoidance of interruptions to commerce and operations, second the protection of employees rights to join a union, in 1951 the amendment was added to the act that permitted union security, third the independence of carriers and employees in matters of self organization and fourth the settlement of grievances and disputes growing out of the Railway Labor Act contracts" (Railway Labor Act, www.dalpa.com). During contract negotiations under the act both management and union or employees must bargain in good faith. Meaning that both parties have to avoid from using behavior that shows a "desire to not reach agreement." The act also states that while contract negotiations being held that both management and union must keep a "status quo." Management is not allowed to change working conditions or wage rates, and the union is not permitted to strike or effect business operations in any negative economic occurrence. Many times the National Mediation Board provides incentives to the parties so that they settle the disputes peacefully.

The major disputes are defined as the "collective bargaining" disputes and involve the creation of revision of rates of pay, rules of the business, or working conditions. "Unlike other industries, collective bargaining agreements under the Railway Labor Act do not expire on certain dates, but remain in full force and effect until changed in accordance with the procedures of the Railway Labor Act" (Highlights of the RLA, www.fra.gov). The acts procedure of steps for the major disputes or the collective bargaining disputes are as listed.

First, the party that is requesting a change of rate in pay, working conditions, or work rules must submit a written notice in advance with their intent to begin negotiations. Both parties then must meet and if they fail to come up with an agreement then either party may ask for ask for the services of the National Mediation Board. The N.M.B. can keep the parties in mediation indefinitely as long as they feel that there is a good chance of settlement. If mediation fails then the N.M.B. must lure both parties into arbitration. If arbitration is denied, the parties must keep "status quo" for 30 days, this is also called the "cooling off" period in which negotiations may continue. If the N.M.B. agrees that the dispute may be threatening, "to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service," (Highlights of the RLA, p.2, www.fra.com) Then the board can notify the President, who can create the Presidential Emergency Board to determine and provide recommendations for resolution of the dispute with in a 30 day period. "The P.E.B. temporarily prevents a work stoppage or a lock out for up to 60 days" (Responsibilities and Activities, www.nmb.gov). Thus during this process parties must maintain a status quo and have no options of self-help until after the 30 day period expires and there is still no agreement between the parties. Congress can interfere following the Presidential Emergency Board in which they may legislate a resolution. However, at any time during the negotiation process that an agreement is reached, a contract is then signed and a new amendable date is set.

Self-help is really an issue that remains quiet in the range of acceptable self-help when both parties have gone through the entire collective bargaining dispute procedure. "However, court decisions have made clear that the scope of permissible self-help is broad," (Highlights of RLA, p.3, www.fra.gov) extending far beyond the permissible self-help that the National Relations Act would permit. "Courts have ruled, for example, that primary dispute, engage in intermittent work stoppages (e.g. "selective" or "rolling strikes") and secondarily picket other neutral RLA employers (a practice prohibited under the NLRA)" (Highlights of RLA, p.3, www.fra.gov). As far as carriers are concerned, their self-help contains the implementation of their proposal contract changes, creating a nation wide response to protect against a selective strike that may threaten national bargaining, that includes locking out striking workers and if the contract allows for with non-striking workers, other workers; and replacing striking workers.

The disputes that are of less importance are called the grievance disputes or minor disputes. They are disputes that come from the interpretation of pre-existing contract rights. "Courts have ruled that a dispute is minor if the employer's action complained of by a contract employee is "arguably justified" by the collective bargaining agreement" (Highlights of the RLA, p.3, www.fra.gov). The minor disputes usually first handled through the carrier's interior resolution policy or procedure. If the minor dispute is not agreed upon in the beginning negotiations, then it may be directed for binding arbitration by union or management to a grievance adjustment board that is made up of union and management representatives, which was an added amendment in 1966- in the case of airline industries it would be a system of adjustment boards and in the case of the railway industry it would be the National Railroad Adjustment Board or other specific boards of adjustment. In accordance to the minor disputes strikes are prohibited and can be forbidden.

The Railway Labor Act brought forth not only union security and the settlements of the industries grievances, but also the ability to keep our nation's economy running strong. The key player in all of this is the National Mediator Board who settles 97 percent of all mediation cases without the interruptions to the nation's public service. With the addition of the airline industry in 1936 our nation will never have to worry about economic interruptions within the railway and airline industries. The Railway Labor Act works for the betterment of our entire nation in keeping our business in one stable peace.

 

[BoeingBoy]

Well, let this east pilot say it:....

Well, you either look at the expectations based on the picture of 2005 or you disregard expectations completely. Neither ALPA nor USAPA disregard expectations so let's call that a given. That leaves pre-merger expectations or expectations at some other post-merger time pulled out of the air. Needless to say that USAPA picked the latter - expectations at a post-merger point where West was nearing it's minimum block hours while East was benefiting from post-merger aircraft additions. Then USAPA fashions it's C&R's to trap West pilots in PHX while allowing East pilots to bid into PHX, further enhancing East expectations.

Jim

 

[Bear96]

You have no idea of what your talking about, non-union workers are not covered under the RLA[.]

Sure they are.

Take a look at Section 1(Fifth): "The term 'employee' as used herein includes every person in the service of a carrier . . . who performs any work as defined as that of an employe . . . "

Or Section 2(Fourth): "Employees have the right to organize . . . . The majority of any craft of class of employee shall have the right to determine who shall be the representative of the craft or class . . . . No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . . [N]othing in this chapter shall be construed to prohibit a carrier from permitting an employee, individually, . . . from conferring with management during working hours without loss of time[.]"

All that applies to non-union workers who want to form or join a union. It does not make sense to say that it only applies to already-organized employees. The non-union employees of, say, jetBlue (or Delta for that matter) could legally be fired for trying to get a union on the property if the RLA did not apply to them.

Of course, being covered by the RLA is not the same as being covered by a CBA or being represented by a union as an airline employee. But the RLA covers all airline employees to at least some degree.

 

[BoeingBoy]

Of course we know that ALPA itself didn't consider itself bound by the Nic, or why bother with things like the Rice commission or Wye River? Even the Ninth made note of that detail.

Incorrect - ALPA was bound by the NIC. What the Rice commission and Wye River sought to accomplish was to find some middle ground that the two sides - East and West - could agree to. No matter what Nic ruled, the two sides (while they existed) could agree to an alternative.

Like I've said before, USAPA eliminated the two sides necessary to reach any agreement to modify the Nic. Once the company accepted Nic and said it met the requirements of the TA, it was no longer a "bargaining position" and by eliminating the separate West representation USAPA made it impossible to alter the Nic as it was the accepted seniority list (no longer a "bargaining position") per the TA.

Now, if the ALPA seniority integration process hadn't been completed and the result accepted before USAPA was elected CBA, all the talk about crossing out ALPA and inserting USAPA in the TA language concerning seniority integration might have some merit. Since that wasn't the case, such rationalizations to justify re-doing the seniority integration are moot because now you're not talking about only negotiations but contract law.

Jim

 

[oldiebutgoody]

Sure they are.

Take a look at Section 1(Fifth): "The term 'employee' as used herein includes every person in the service of a carrier . . . who performs any work as defined as that of an employe . . . "

Or Section 2(Fourth): "Employees have the right to organize . . . . The majority of any craft of class of employee shall have the right to determine who shall be the representative of the craft or class . . . . No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . . [N]othing in this chapter shall be construed to prohibit a carrier from permitting an employee, individually, . . . from conferring with management during working hours without loss of time[.]"

All that applies to non-union workers who want to form or join a union. It does not make sense to say that it only applies to already-organized employees. The non-union employees of, say, jetBlue (or Delta for that matter) could legally be fired for trying to get a union on the property if the RLA did not apply to them.

Of course, being covered by the RLA is not the same as being covered by a CBA or being represented by a union as an airline employee. But the RLA covers all airline employees to at least some degree.

Exactly correct! That's the way I interpret it, as well.

 

[oldiebutgoody]

Incorrect - ALPA was bound by the NIC. What the Rice commission and Wye River sought to accomplish was to find some middle ground that the two sides - East and West - could agree to. No matter what Nic ruled, the two sides (while they existed) could agree to an alternative.

Like I've said before, USAPA eliminated the two sides necessary to reach any agreement to modify the Nic. Once the company accepted Nic and said it met the requirements of the TA, it was no longer a "bargaining position" and by eliminating the separate West representation USAPA made it impossible to alter the Nic as it was the accepted seniority list (no longer a "bargaining position") per the TA.

Now, if the ALPA seniority integration process hadn't been completed and the result accepted before USAPA was elected CBA, all the talk about crossing out ALPA and inserting USAPA in the TA language concerning seniority integration might have some merit. Since that wasn't the case, such rationalizations to justify re-doing the seniority integration are moot because now you're not talking about only negotiations but contract law.

Jim

That's a HUGE stretch there, Jim. Once ALPA was replaced, the new CBA had the choice of keeping the already closed portions of the contract or discarding them and starting over, which is what they did with the seniority issue. All the company meant by "accepting" the Nic list was that it met certain company requirements for an acceptable list. Doug Parker explained it in the PHX Crew News video, which you may not have access to, since you aren't a current employee (lucky you).

There's no contract without an agreement, that's basic contract law. EVERYTHING is a bargaining position until there is a signed, ratified contract (of course we're not discussing imposed contracts or other bankruptcy court actions). For example, USAPA could agree with the company on language dealing with vacations, but then when the company wants more out of employees on duty rigs, they may change their position on vacations. It can change right up to being sent out for ratification.
That has NEVER changed. ALPA plainly was open to modifying the Nic in some form, and it was even noted in the opinion of the Ninth Circuit.

BY the way, the West's own lawyer at the time, Mr. Freund, said that the Nic was only a bargaining position. I didn't make that up.
One other point. ALPA's integration procedures were NEVER complete, since they were not included in a ratified contract. The process has now been replaced by USAPA and it's merger process. USAPA isn't dealing with an east or west pilot group, but ALL pilots of LCC. It has to find something that works in the interest of ALL, or face a DFR action by one oir both sides.

 

[sumadarson]

Where can one find the dispatcher seniroity award?

Usairways East West Seniority arbitration award

 

[Hate2fly]

According to AWA management, the infusion of capital from third parties that AWA needed to survive and that helped make the merger possible was simply not available to AWA as a standalone carrier.


Subject: According to AWA management, the infusion of capital from third parties that AWA needed to survive and that helped make the merger possible was simply not available to AWA as a standalone carrier..


U.S. Air’s operating revenues were almost three times those of AWA ($7.1 billion - $2.25 billion), it served almost twice as many destinations (179-96) and carried approximately twice the number of passengers (41.3 million-21 million). Id. As of the end of the second quarter of 2005, approximately one month after the merger agreement was executed, U.S. Air had almost four times the amount of cash on hand as did AWA ($557 million - $116 million), had an $11 million advantage in net operating income for the quarter ($41 million - $30 million), had over twice the number of available seat miles ("ASMs") (16.4 billion - 7.7 billion) and enjoyed significant advantages over AWA in Revenue/ASM (10.72¢ - 9.07¢) and Yield/Revenue Passenger Mile (14.11¢ - 10.25¢).

Although AWA did not seek bankruptcy protection in the same time period, it was in tenuous financial condition. AWA had suffered net operating losses during four of the five years preceding the merger. Tr. at 262-64; Local 542 Ex. G (America West Holdings Corp. 2004 Annual Report) at 20. During the calendar quarter culminating with the merger, those net operating losses climbed to $125,000,000.

II. THE RELATIVE FINANCIAL CONDITIONS OF THE TWO CARRIERS PRIOR TO MERGER

While U.S. Air was certainly experiencing financial problems in 2004 and filed for relief under Chapter 11 of the United States Bankruptcy Code on September 12, 2004, Joint Ex. 7 at No. 1, during its period in bankruptcy U.S. Air took significant steps to improve its financial condition. For instance, it won from its unionized employees a series of concessions designed to achieve cost savings amounting to $1 billion per year. Tr. at 79. The Dispatchers as a group gave up 23% in payroll concessions alone. Tr. at 80. In addition, the Company terminated several of its retirement plans, delivering additional savings. Tr. at 79-80; Local 545 Ex. 1 at 10/43. All told, by the end of the fiscal quarter ending June 30, 2005, the Company had managed to decrease its labor costs by approximately 35.9%. Tr. at 80-81; Local 545 Ex. 1 at 24/43. As a result of these and other cost saving measures, U.S. Air achieved positive net operating income of $41,000,000 during the second quarter of 2005, Local 545 Ex. 1 at 5/43, and raised that figure to a positive $280,000,000 for the portion of the third quarter ending at the

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5 Although Local 542 counsel objected to the introduction of these official company pronouncements on hearsay grounds, Arbitrator Harris overruled that objection. Tr. at 64-67. That decision was indisputably correct because the pronouncements are contained in business records, a specific exception to the hearsay rule. See, F.R. Evid. 803(6).

September 27, 2005, approval of the merger agreement. Tr. at 260-62; Local 542 Ex. E (Report of Independent Registered Public Accounting Firm) at 208.

Although AWA did not seek bankruptcy protection in the same time period, it was in tenuous financial condition. AWA had suffered net operating losses during four of the five years preceding the merger. Tr. at 262-64; Local 542 Ex. G (America West Holdings Corp. 2004 Annual Report) at 20. During the calendar quarter culminating with the merger, those net operating losses climbed to $125,000,000. Local 542 Ex. E (U.S. Airways Group, Inc. 2005 Annual Report) at 54.

AWA repeatedly made clear in official pronouncements to its employees, shareholders and the Securities and Exchange Commission that, without a major transaction such as the U.S. Air merger, it, too, was heading to bankruptcy. Tr. 82-85, 88-89; Local 545 Ex. 5 (Nov. 25, 2005, "About US," A U.S. Airways Employee Publication) at 5 ("Assuming fuel costs continued to rise, capacity didn’t come out of the system and thus unit revenues remained depressed, and assuming we couldn’t go out and restructure or raise cash, it is possible that AWA would have been facing its own Chapter 11 at some point"); Local 545 Ex. 6 (U.S. Airways, thehub.usairways.com, "About the Company") at 3 ("2004: America West Airlines mulls restructuring, either through merger/consolidation opportunities or a possible Chapter 11 filing"); see also, Tr. 64-65, 67-69; Local 545 Ex. 3 (June 10, 2005, "Plane Deal," An America West Employee Publication) at 3.5 As AWA’s CEO Douglas Parker declared to AWA shareholders, AWA had lost the cost structure advantage it once had had over its legacy competitors,

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6 Local 542’s effort to paint a much darker picture of U.S. Air’s financial condition at the time of the merger and a brighter picture of AWA’s ignores entirely these statements by AWA’s own CEO and management and, in a number of respects, is directly contradicted by them. See Tr. at 218-19; Local 542 Ex. K (Financial Condition Comparison, AWA and U.S. Air, on basis of SEC 10Q filing as of June 30, 2005). Moreover, the "analysis" of financial data presented by Local 542 in its Ex. K was based solely on the non-expert opinion of Local 542’s President; consequently, Arbitrator Harris ordered the opinion portion of Local 542’s Exhibit K stricken from the record. Tr. at 219-22.

particularly U.S. Air, which had used its period in bankruptcy to "achieve a competitive cost structure," an achievement made possible by "significantly reduced labor cost savings, decreased overhead, increased aircraft efficiency and a rationalized fleet." Tr. 90-92; Local 545 Ex. 7 (2005 Chairman’s Message to Shareholders). Mr. Parker also drew attention to the fact that AWA employees had always lacked a sense of "long-term job security," even during periods when AWA had been "doing better relative to our competitors" -- a condition which, according to Mr. Parker, "simply means we are losing less money than other airlines." Tr. 95-96; Local 545 Ex. 8 ("Merger News," Doug Parker Merger letters, May 19, 2005, thehub.usairways.com). According to AWA management, the infusion of capital from third parties that AWA needed to survive and that helped make the merger possible was simply not available to AWA as a standalone carrier. Tr. 69-70; Local 545 Ex. 3 at 3.6

III. WHAT THE TWO CARRIERS BROUGHT TO THE MERGER

According to the merged carrier’s own website, U.S. Air brought to the merger approximately twice the number of jet aircraft (280 - 139) as AWA and had more firm orders for additional aircraft than AWA (29 - 26). Tr. 101-03; Joint Ex. 1 (Merger News, "HP-US Comparison," thehub.usairways.com). U.S. Air’s operating revenues were almost three times those of AWA ($7.1 billion - $2.25 billion), it served almost twice as many destinations (179-96) and carried approximately twice the number of passengers (41.3 million-21 million). Id. As of the end of the second quarter of 2005, approximately

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one month after the merger agreement was executed, U.S. Air had almost four times the amount of cash on hand as did AWA ($557 million - $116 million), had an $11 million advantage in net operating income for the quarter ($41 million - $30 million), had over twice the number of available seat miles ("ASMs") (16.4 billion - 7.7 billion) and enjoyed significant advantages over AWA in Revenue/ASM (10.72¢ - 9.07¢) and Yield/Revenue Passenger Mile (14.11¢ - 10.25¢). Tr. 97-101; Local 545 Ex. 9 (Financial Condition Comparison, AWA and U.S. Air, June 30, 2005); see also Local 545 Exs. 1 and 10 (AWA’s SEC Form 10Q Report for Quarter Ending June 30, 2005).

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