Neutral opinion needed on east/west
 

So fellas the latest judgement is in and I am curious to see how you neutral guys intrepet what the judge said(usapa reads it as a huge victory and so does the west) So if you have a second, read this order and let us know what you think it means.

AWAPPA Members Forum

PS If you don't care to read it, don't and save your bandwith.

In the spirit of true neutrality, I couldn't log on to the website to read the verdict. Should I pull a "congress" and give you an opinion prior to knowing what it says? Two things you should know about bipartisan me; I invented the internet and I can see Russia from my back porch.

I read it as the ball is the judgement, the ice cream is the NIC and the guy is the west pilot group.

http://i.imgur.com/cvAkg.gif

I thought she would overturn the 9th to be honest. You guys will probably get the NIC in the AMR merger anyways. If you guys don't merge, I can see you giving up a little of the windfall to the east.

Sorry I thought that was not locked, let me see if I can find a good link

I'm sure cactuspilot.com will have it up soon. I have had some issues with the pieces they write, but have to hand it to them for keeping everyone informed.

You asked for neutral opinions so I won't respond except to ask....why? We have a neutral answer, and really the only one that counts.

Here's the short version, but the long version has some interesting wording when you can read it:

Pursuant to the Court’s resolution of the motions for summary judgment,
IT IS ORDERED Counts I and III of the complaint are dismissed and judgment is
entered in favor of US Airline Pilots Association on Count II of the complaint. US Airline
Pilots Association’s seniority proposal does not breach its duty of fair representation
provided it is supported by a legitimate union purpose.
DATED this 11th day of October, 2012.

Actually usapa won because the judge reversed herself and dismissed the case, a case she said she would rule on.
However she did include some things in the dismissal that are very interesting.

Agreed. Now would be a really good time for both sides to put away preconceived notions and LISTEN.

So did she just rule that USAPA is free to do a DOH list?

Here are some of the crucial points she made:

When USAPA became the pilots’ new collective bargaining representative, it
succeeded “to the status of the former representative without alteration in the contract terms.”
Int’l Bhd. of Teamsters v. Texas Int’l Airlines, Inc., 717 F.2d 157, 163 (5th Cir. 1983). As
there does not appear to be any dispute that the Transition Agreement was part of the contract
between the pilots and US Airways, the Transition Agreement applies to USAPA. Even the
case which USAPA relies upon states there is a “general principle that collective bargaining
agreements survive a change in representative.” Ass’n of Flight Attendants, AFL-CIO v.
USAir, Inc., 24 F.3d 1432, 1439 (D.C. Cir. 1994). Thus, just as ALPA would have been
bound by the Transition Agreement had it remained the pilots’ representative, USAPA is
bound by the Transition Agreement.2

More:

Of course, in negotiating for a particular seniority regime, USAPA must not breach
its duty of fair representation. Accordingly, if USAPA wishes to abandon the Nicolau Award
and accept the consequences of this course of action, it is free to do so. By discarding the
result of a valid arbitration and negotiating for a different seniority regime, USAPA is
running the risk that it will be sued by the disadvantaged pilots when the new collective
bargaining agreement is finalized. An impartial arbitrator’s decision regarding an
appropriate method of seniority integration is powerful evidence of a fair result. Discarding
the Nicolau Award places USAPA on dangerous ground


and for the company's benefit she wrote:

This conclusion places US Airways in a difficult position. At the present time, it is
not possible to predict what will result from the collective bargaining negotiations. Thus, the
Court cannot grant US Airways prospective immunity from any legal action by the West
Pilots. But based on the representation at oral argument that the seniority list is unlike other
matters addressed in collective bargaining, it is unlikely the West Pilots could successfully
allege claims against US Airways merely for not insisting that USAPA continue to advocate
for the Nicolau Award. See Davenport v. Int’l Broth. of Teamsters, AFL-CIO, 166 F.3d 356,
361-62 (D.C. Cir. 1999) (addressing, without deciding, “the proper standard for determining
whether an employer can be implicated in a union’s breach of duty”).

It sounds like USAPA is free to go for a new list, but everyone is free to sue if they do so.

The more things change, the more they stay the same...

I stand by my 2020 or AA merger prediction. :)

CM I usaually agree with your posts, but I think you left out a critical part:


'But being “bound” by the Transition Agreement has very little meaning in the context
of the present case. It is undisputed that the Transition Agreement can be modified at any
time “by written agreement of [USAPA] and the [US Airways].” (Doc. 156-3 at 38).
Moreover, USAPA and US Airways are now engaged in negotiations for an entirely new
collective bargaining agreement and there is no obvious impediment to USAPA and US
Airways negotiating and agreeing upon any seniority regime they wish. As explained by the
Ninth Circuit, “seniority rights are creations of the collective bargaining agreement, and so
may be revised or abrogated by later negotiated changes in this agreement.”


The whole thing really needs to be read to get the full view. My take on it she was saying:

"USAPA, I think you are screwing the west pilots, but you have the law on your side. You might want to come up with a better case because even though you can do it, looks like you might have to answer to it again. US Airways, you're pretty much off the hook. You have to negotiate, but you don't have to say yes to just anything."

Looks like everyone loses. Loses all the time and money they've dedicated to their respective causes and it seems further from being settled now. You're all at a legally determined stalemate.

USAPA is free to do as it chooses and all parties are free to sue if they feel wronged and all parties have pretty strong potential cases.

Nobody is going to win this unless people work together and constructively reach a solution. Until that almost unimaginable event happens, all of you will continue to be working under the worst contract and lowest pay of all non-regional airline pilots.

It really is unfortunate.

No, that they are free to propose and negotiate any list they want, they just better have a good reason for it.

Good summary. The term she used is legitimate union purpose. We have in evidence from the Wake trial (Addington) what the purpose of USAPA is. Heck, all we have to do is show the UOM (union operating manual).

I think you guys are forgetting the claim that a joint contract cannot be affected with the Nicolau award in it. The years of lost wages fighting against the Nic may be to USAPAs favor. Something to consider.

I think this would be a good time for both sides to step back, look at what has been lost and reconsider their positions. I have little hope of that happening.

I agree but when she says "law" she means the 9th ruling, a ruling she doesn't agree with and it is that ruling that kept her from deciding the case. Also another thing that I think is huge, for the first time usapa was told they inherited the nicolau award.:

There is much case law that says the majority can't change the seniority of a minority. Only Rakestraw allowed a seniority to be changed, you should read it.

She didn't agree, but felt obligated to follow. I'm not sure why USAPA argued that either, and actually didn't remember that they did. We are operating under the T/A and it's why we haven't shrunk anymore. Either way, she said that didn't matter, that were in the process of negotiating a complete new agreement and could change anything, with a good reason. Sort of like the min fleet.

I have and it did allow it to be changed because they had a 'legitimate union objective" right?

I'm not sure what you mean by the first sentence. If you are saying that there will never be a contract acceptable to the east with the Nicolau award in it then I would say that if it is quicker to get a contract that pays close to industry standard by using the nicolau award then that will pass since I am pretty sure you guys are losing more money than we are.

I don't think the second sentence is true. You guys are losing money and the upgrades are not really compensating for the dollars lost. Starting in December we will have upgrades again for attrition and maybe I can go back to holding a line on the 757 again.

As far as stepping back and looking at this? Sure, we will see what USAPA comes up with. It will be without West input because we have none. All we can do is watch and see how negotiations go. I think USAPA will come up with something that harms the West and we will be back in court again. But remember, we are not holding up the process. This is between USAPA and the company. The West is a minority here. We have nothing that prevents the negotiatig process from going forward.

Yes and it was the company's attorney Siegal that won that case. In the first hearing in front of Silver he mentions it on page 13 of the transcript:

That is exactly right, but she is bound by it.
Seeham is who convinced usapa of that and usapa has argued it ever since, they inherited everything except the nic. Heck even on these boards east pilots claim usapa didn't inherit the Nic. This Judge was the first one to actually say that, it's a big deal especially if we merge with amr.

Well, it's nice that you are getting a neutral outside opinion as requested.

Lol, well until we get the document up we are stuck.

bad link again

Would the McCaskill-Bond affect the new list?

It's on cactuspilot.com. Let's see if this works:

http://leonidas.cactuspilots.us/Decl...c193_Order.pdf

The way I read the judge's decision, is USAPA is free to negotiate for either the Nicolau award or something else that is fair to the west pilots.

If it is not the Nic or something fair to west pilots, the company should not accept the list. If they do accept something not fair to west pilots, then the west has a case to sue USAPA and the company.

Here's the most important line in the judge's order:

"In the end, the Court cannot provide as much guidance as it had hoped it could."

No kidding. She didn't provide any guidance.

I think the judge dropped back and punted.
She talked for 9 pages and didn't say anything. You guys are right back where you were.
The 9th Circuit ruling stands. USAPA can do whatever they want but as soon as they do it the litigation will commence.

The company didn't get any guidance either. They "need not insist on any particular seniority regime" but they better be damn sure it is reasonable and serves a legitimate union purpose or they will also be open to lawsuits. That "ruling" (if you can call it that) is totally useless. It doesn't help at all.

The only people who won a "huge victory" are the lawyers.

The judge makes two points:

1. USAPA has tried to pretend that there is no seniority list at the merged company and they get to start anew with no reference to the Nicolau list as an established list created by a mutually agreed to "fair and equitable" process. The Judge states unequivocally that there is a list and USAPA is bound by the Transition Agreement.

2. It is allowable to change a seniority list as it is a negotiable item in the contract. However, it is super duper extremely hard to change it. By definition, for every pilot that gains a number another pilot loses a number. In order for a union to change a seniority list they have to present an overriding union objective that benefits the entire list. You can't just exchange one unhappy group of pilots for another unhappy group of pilots simply because you have the votes. That is why you almost never hear about a seniority list being changed, ever. The Judge tried to make this point abundantly clear to USAPA but they have in the past ignored all common sense and legal precedent and seem determined to take this all the way until they lose in court.

The bottom line is that US Airways management now has a built in excuse to never negotiate with USAPA until USAPA accepts the Nicolau award. They have numerous legal opinions from federal judges that spell out explicitly the danger to US Airways if they aid and abet USAPA in changing the seniority list. The NMB will see this danger and will not move the process forward until USAPA quits trying to make US Airways a co-conspirator in a DFR lawsuit.

Cactiboss;

As for your original request, I present you with something that almost never happens...I agree with Alfa's post 100%. That is my unbiased opinion.

http://pics4.city-data.com/cpicc/cfiles39340.jpg

Neutral, between the East and West, is Lebanon Kansas. What do I win?

Check Essential & AlphaRomeo are correct on the facts and prognosis. The Judge ruled USAPA can do its own seniority list, then it will be sued. It has no money, so there really isn't anything to win or lose.

Meanwhile the worrying fact is, co-pilots 200 NM out on the 242 radial from your home base are earning more than your Captains. That's not good for pilots at either airline.

As is always the case in this profession, unity is more important than tactical position. It does not matter much who's in the left seat when both pilots are making less than the industry average for the right seater.

My personal opinion on who needs to compromise does not matter (no one would listen anyway). But regardless, a meeting of the minds must occur and the result, any result, would be better than status quo.

Thanks for the opinions so far guys, this is certainly a very interesting case I just wish I wasn't part of it.

Because you lost?

Second post and that's how you ingratiate yourself to the board?

Alfa, you and I have sparred before, but I have a serious question that I would like your opinion on. I will just listen and not reply unless you have a question for me.

I'm in the middle of this mess and I have a hard time remembering all the points. I agree that a seniority list is hard to change, and a union has to have a legitimate objective and the change must be within a wide range of reasonableness. The "legitimate union objective" that I seem to remember USAPA making was that a contract containing the Nicoalu award will be a very hard thing to attain. That abandoning the Nic DOES benefit the whole group because we are falling behind the industry every day and it allows us to get a new jcba. Is that a legitimate union objective, in THIS case? Our T/A prohibits the use of the Nicolau award until we have a joint contract. We are 7 years into the merger, 5 years after the Nic award came out, 1 year after a clear referendum on the course of the union through last years officer election and we are nowhere near a jcba because of the Nicolau award. I'd say that supports that theory, but there has never been a vote on a jcba. Do we have to vote on a jcba and turn it down to legitimize that claim? Do we have to vote it down 1 time, 2 times, 3, 10? Do we have to slog through this 10 more years to prove the legitimate union objective?

It will be interesting to see the company's and AOL's response.

Thanks

Yea, I know. I just couldn't help my self.

Well said.

If that's how you feel after reading the order, thanks for your input.

Clearly, discontent will remain. It doesn't sound like US Airways (or any successor) is free of potential legal liability either. Considering that, I wonder how AMR and its creditors will look upon potential legal jeopardy going forward should USAPA force something against the west and they persue a claim (which you know they will). Wouldn't surprise me to see Horton pitching that angle to the creditors to bolster his desire to emerge from Chapter 11 stand alone and then control any merge with whomeve and in the case of US Airways, in part or whole.

Alternately, you have a stalemate that might preclude any true merger of operations going forward and I wonder if ANY future acquirer of US Airways will want to ingratiate themselves into this. Perhaps Parker might have to consider a fragmentation scenario of selling one side and sticking with the other in a merger ?

Not sure of the feasability of that or if they've considered that option, but I don't see a merger resolving this as all it would seem to do would be to shift financial jeopardy to new parties. Not sure if the ROI on inheriting either an internally fragmented carrier or a single one littered with 5-10 years worth of lawsuits would be worth it.