R57 relay

Why don't you answer my questions? Waiting on answers from your handlers?

PurpleTurtle

The "LUP" was an invented standard of DFR concocted by Silver and it would never fly in an appeal, as it assumed the defendant would have to prove themselves innocent, but as is obvious (from SCOTUS) the plaintiff must prove a union breached their DFR by doing something outside a wide range of reasonableness. LUP pretended to put the burden of proof on the defendant. Sadly Silver's political double talk has deluded many pilots to keep funding the ILoveMarty Foundation.

R57 relay

QUOTE=Wiskey Driver;1560837]Ok what is so different?? Prior you had an arbitrator and two pilot neutrals now you just pay 3 times the rate for 3 arbitrators which is basically the same make up. The difference being that there was this feeling of obligation by the neutral to side with the pilot group that picked them regardless of if the position was right or wrong.

I know that you know the ALPA merger policy was in part due to usair and part UAL. In fact your Kim Snider was directly involved in memory serves me correctly. There is rich history of us east doing that which benefits them the most and be damned everyone else. The east screams DOH but when one group WITHIN usair east claims they are due DOH if this is your new policy the original easties say no way its slotting. The east talks out of both sides of their necks depending on which benefits them the most at the time and expense of others.

WD at AWA[/QUOTE]

The neutrals had no vote, that's the difference and you know it. Let me remind you of what Brucia told Nicolau:

The one aspect of the Award where I differ with my fellow members of the Board is in the area of credit that should be given to a pilot based on date of hire and the pilot's resulting length of service. As noted in "The Background" section of the Award, US Airways had a significant number of pilots on furlough at the time the merger was announced while America West had none. The most senior furloughed US Airways pilot (Colello) was
hired in 1988 and had accrued 16.4 years of service as of the date of announcement of the merger. He was furloughed in 2003. Below Colello, there were over 440 pilots on furlough with at least 15 years of tenure and well over 12 years of credited length of service. The remaining furloughees (not including the CEL pilots) had at between 5 years and 15 years of tenure and from 1 to 6 years of service.

The junior 305 pilots on the America West seniority list all had less than 2 years of service when the merger was announced on May 19,2005. In fact, the bottom 150 pilots on the America West list were hired less than 1 year before the announcement. I do not agree with the Board's decision, in the particular circumstances of this case, to integrate only working pilots as of the date announcement, leaving all those on furlough at that date on the bottom of the combined seniority list. As a consequence of the Boards
decision, America West pilot Odell, who was hired less than 2 months before merger was announced, has been placed immediately senior to US Airways pilot Colello who was hired more than 16 years earlier and who had over 16 years of credited length of service. I disagree with this placement, which disregards Colello's substantial service time.

There is no dispute in this case that the US Airways pilots as a group are
considerably older than the pilots on the America West list. The record is replete with discussion by both committees relating to age-related attrition, with both groups claiming entitlement to advance in seniority as a result of age-based attrition. TThe Board did not adequately take into account the realities of the "new" airline, the return of furloughees
that has already taken place and the much greater rate of age-based attrition at USAirways as compared to the rate at America West. The vast amount of age-related attrition that has occurred within the US Airways pilot group caused the recall of over 300 US Airways pilots between March 2006 and the first week of January ofthis year.

The pace of recalls is brisk and has continued. During the hearings we learned that additional recalls were taking place and there was testimony that stated at the current pace it was possible that all US Airways pilots would receive recall notices before the end of 2007.

At a minimum, it is my opinion that the US Airways pilots, who had already
received notice of their opportunity to return to work from furlough, should have received some consideration for the substantial time they have already invested in their airline. In the event that the "new" company again decided to furlough pilots in the near future, conditions and restrictions could have been used to insure a measure of protection for the
junior America West pilots to protect them from furlough for some period of time. In fact such a restriction was part of the US Airways Pilot's integration proposal in this case.

I believe that this approach would have better balanced the equities that each pilot group brought to this merger."

If Brucia had been one of the arbitrators on a panel, he might have been able to force this. If he had, I don't think we would be where we are today.

wiggy

From what R-57 posted above, it appears if anything but the Nic is presented to APA, there will be ripeness for a DFR....She had no USAPA generated list to compare the Nic to...other than the MOU was seniority neutral...That leads to the next question....of what significance is the APA "sole bargaining agent"? Surely...that does not mean "APA gets to decide the SLI". Surely the MB arbitrators will decide based on presentations and proposals by the premerger groups...regardless of whether they're "technically" under the APA roof....So, in the eventuality...if the Nic is discarded and if an east AND a west list is presented separately...the west must have their own representation in that process...It would be rather ludicrous to think USAPA would fairly represent the west in a 3-way integration.

R57 relay

Even with that, in the end you couldn't carry the ball in.

R57 relay

You missed the point. The MOU abandoned the Nic. I posted that for you, those are the judges words. If the MOU abandoned the Nic and the APA presented it, then where is the DFR risk? The east has twice the number of guys to financially support a DFR suit than the west does and they showed us how to do it.

R57 relay

Wiggy,

Read this again:

I. Claim One: Breach of the Duty of Fair Representation
96. Plaintiffs re-allege each and every allegation set forth above as
if fully set forth herein.
97. Pursuant to the duty of fair representation, USAPA must have a
legitimate union purpose to use anything other than the Nicolau Award
list to integrate East Pilots and West Pilots.



98. USAPA does not have a legitimate union purpose to use
anything other than the Nicolau Award list to integrate East Pilots and
West Pilots.
99. USAPA, therefore, breached the duty of fair representation by
entering into the MOU because the MOU abandons a duty to treat the
Nicolau Award as final and binding.
100. Plaintiffs are entitled to a declaratory judgment to that effect
and to other remedy sought below.

Judge said: "IT IS FURTHER ORDERED the Clerk of Court is directed to enter judgment in
favor of Defendant US Airline Pilots Association on Count I"


II. Claim Two: Breach of Transition Agreement by US Airways
101. Plaintiffs re-allege each and every allegation set forth above as
if fully set forth herein and reallege this Claim, which was dismissed by
the Court [Doc. 122], solely to preserve their rights to appeal that ruling.
102. The Transition Agreement had an implied covenant of good
faith and fair dealing.
103. The Transition Agreement envisioned a “Single Agreement” that
would be made by US Airways and USAPA that would replace material
terms in the separate contracts governing the employment of the West
Pilots (the West CBA) and the East Pilots (the east CBA).
104. That implied covenant constrained the terms of the Single
Agreement such that it could not provide materially improved wages for
US Airways pilots (East and West) without also providing terms needed to
integrate pilot operations consistent with the Transition Agreement.
105. The MOU is a single agreement that provides materially
improved wages for US Airways pilots (East and West).
106. The MOU fails to provide terms needed to integrate pilot
operations.
107. The Transition Agreement requires that pilot seniority will be
implemented using to the integrated seniority list created according to
ALPA Merger Policy and accepted by US Airways – the Nicolau Award list.
108. The MOU fails to provide that pilot seniority will be
implemented using the Nicolau Award list.
109. Based on the forgoing, adopting the MOU is a breach of the
Transition Agreement implied covenant.
110. Despite vigorous protests by the West Pilots, USAPA refuses to
assert breach of the Transition Agreement implied covenant.
111. This Court, consequently, has hybrid jurisdiction to hear this
implied covenant claim that would otherwise be a minor dispute subject
to system board arbitration.
112. Plaintiffs are entitled to a declaratory judgment that the MOU is
a breach of the Transition Agreement implied covenant by US Airways.

Judge said: "IT IS FURTHER ORDERED the Clerk of Court is directed to enter judgment in
favor of US Airways, Inc. on Count II"



III. Claim Three: Attorneys’ Fees
113. Plaintiffs re-allege each and every allegation set forth above as
if fully set forth herein.
114. USAPA has several million dollars in reserve collected as dues
and agency fees from all US Airways Pilots.
115. Plaintiffs brought this action and the 2008 action and appeared
as defendants in the 2010 action to vindicate the right of all US Airways
pilots to fair representation by USAPA.
116. By obtaining the rulings in the 2008 and 2010 actions and by
prevailing in this action, Plaintiffs conferred a substantial benefit on all
US Airways Pilots.
117. Under common benefit doctrine, the expenses of achieving
those benefits should, in all fairness, be spread among all those who so
benefitted.
118. The expenses of achieving those benefits would be fairly spread
among all US Airways Pilots if paid by USAPA
119.The Court should, therefore, make an award in favor of
Plaintiffs and against USAPA for all reasonable litigation expenses,
including attorneys’ fees incurred bringing this action, incurred by
Plaintiffs in the actions noted above.

Judge said: "IT IS FURTHER ORDERED the Clerk of Court is directed to enter a judgment of dismissal without prejudice on
Count III"


IV. Claim Four: Declaratory Claim
120. Plaintiffs re-allege each and every allegation set forth above as
if fully set forth herein.
121. McCaskill-Bond provides that employees affected by an airline
merger have the right to a fair and equitable seniority integration.
122. The West Pilots are employees affected by the US Airways-
American Airlines merger.
123. In the process of obtaining a fair and equitable seniority
integration of the US Airways and American Airlines pilots that will
commence soon after AMR’s Petition of Reorganization is approved and
final (hereinafter the “MOU Seniority Integration”), which is expected to
occur within approximately the next two months, USAPA and its
representatives and counsel are bound by USAPA’s constitution to
advance a date-of-hire seniority order for US Airways pilots.
124. The West Pilots have an interest to see proper implementation
of the Nicolau Award seniority list in the course of the MOU Seniority
Integration.
125. USAPA and its representatives and counsel have an unwaivable
conflict of interest with the West Pilots in regard to seniority integration.
126. USAPA and its representatives and counsel, therefore, cannot
fairly represent the West Pilot’s interests in the course of the MOU
Seniority Integration.
127. The West Pilots contend that they have the right to fully
participate in each phase of the MOU Seniority Integration process. (Doc.
97 at 5:23 to 5:25.)
128. US Airways also contends that the West Pilots have the right to
participate fully (with counsel of their own choice) in the MOU Seniority
Integration process and that such participation will promote a more
effective process. (Doc. 98 at 1:6 to 1:10.)
129. USAPA contends that the West Pilots have no legitimate right to
participate in any phase of the Airways-American McCaskill-Bond
process. (Doc. 95 at 10:17 to 11:6.)
130. There is a substantial controversy, therefore, between the West
Pilots and USAPA as to whether the West Pilots have a right to
participate in the MOU Seniority Integration process.
131. Consequently, there is a substantial controversy, between
parties having adverse legal interests, of sufficient immediacy and reality
to warrant the issuance of a declaratory judgment.
132. The West Pilots are entitled, pursuant to 28 U.S.C. § 2201, to
an order declaring that they have party status and the right (but not the
obligation) to participate fully (with counsel of their own choice) in the
MOU Seniority Integration process.

Judge said: "IT IS FURTHER ORDERED the Clerk of Court is directed to enter judgment in
favor of Defendant US Airline Pilots Association on Count IV"

wiggy

I'm not seeing "abandonment of the Nic" in that language, I'm seeing the Nic couldn't be compared to anything presented in the MOU...therefore the DFR involving the Nic fails with respect to the MOU....This says nothing about the legitimacy of the Nic with respect to the seniority regime that will be presented with MB...

I do see the gamble the west was making by endorsing the MOU...or rather those leaders of the west DFR group who endorsed the MOU...

But..."seniority neutral" does not mean "abandonment of the Nic" either...

Exactly how, R-57, do you foresee a 3-way working out...who will/should represent the interests of that 3rd seniority list (AWA)? You've stated you're not a USAPA apologist...do you really think, if the Nic is abandoned in the MB process, as has been the sole purpose of USAPA all along, that they could fairly represent the west?

R57 relay

As I read, and voted yes for, the MOU calls for the abandonment of both the Nicolau award and USAPA's east/west DOH SL. I think the APA and USAPA should go into the room with 3 lists-the AA list, the east list and the west list. Then propose methods for combining all 3.

I don't have a problem with west representation and they have it with west members on the USAPA merger committee. I doubt that the USAPA merger committee will propose the method I would. Should I get separate representation? Why is the west different?

Why should a LLC be able to form a merger committee?

R57 relay

This was the claim in court:

"108. The MOU fails to provide that pilot seniority will be
implemented using the Nicolau Award list."

What would you call that?