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Old 06-08-2010, 05:01 AM
  #141  
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Originally Posted by Hiwaymiles View Post
alfaromeo,

The argument is not that re-ordering the list any way one wants automatically becomes a legitimate union objective. For you to say that is setting up a straw man which is easily knocked down.

This is the real issue: Seniority is a negotiated benefit. A union has the right to distribute negotiated benefits among its members, within certain limits. A union may not redistribute benefits among members without a legitimate union objective. However, if there is a legitimate union objective, the mere fact that reordering benefits helps one group at the expense of another does not automatically mean the action violates DFR.

Restated: If motivated by a legitimate union objective, a reordering of a (proposed, arbitrated) seniority list is not a violation of DFR.

The simple fact of benefit to one group at the expense of another is not per se DFR. It is inescapable that reordering benefits will help one group and harm another. The issue is motive.

Judge Wake said that USAPA's sole motive in seeking date of hire seniority was to harm the west pilots, and because the motive was bad, that Nicolau must always be followed.

Judge Wake refused to consider the simple possibility that USAPA's motive was to use the negotiated benefits of a contract to reward pilots who had served long years at their company, who had only a few years left before retirement, who had limited options for other employment, and who had invested significant portions of their working life at one company.

This motivation, to reward the old-timers, and let the new guys wait their turn, is common in working America. It is also reflected in age discrimination laws, and can fairly be stated to be in line with national public policy.

To say that east pilots' sole motive was to harm west pilots is like saying we couldn't decide whether to kneecap all those guys, or just make them wait for upgrades, and we decided to hurt them by making them wait their turn. It just isn't the case.

Rewarding those who are the oldest, and have served the longest, and having the newer guy wait his turn, is a legitimate union objective.
I appreciate having a discussion about the issue without the name calling and attacks that are so common from some of your compatriots (and some of my compatriots that figure if they can't win an argument on the merits, they will win by calling people names).

While your argument has merit on the surface, you face a large hurdle in getting this done. The East pilots chose ALPA to represent them. They chose to use the default ALPA merger policy to integrate their list. They agreed to a process and in agreeing to this process, they endorsed that the result of that process will be a fair and equitable list. The East pilots were parties to the Transition Agreement that explicitly said they will use the ALPA merger policy to create the integrated list. Now you want to violate the terms of the agreement you signed.

In the process that you accepted, all of the issues that weigh on a fair seniority integration were raised, including the longevity issues and the fact that by any objective standard, the old US Airways was facing liquidation in the near future. While older pilots certainly had expectations, so did the America West pilots, and all of those expectations were baked into the Nicolau award.

It seems to me, that USAPA's goal is to now foil the expectations of the AWA pilots in favor of their own expanded expectations. Those expanded expectations were the result of the merger. The first jury in the Addington case heard your arguments of a legitimate union objective and they rejected them. They saw your legitimate union objective (rewarding years of service) as just another way to back away from a fair and equitable process and create a seniority list based solely on the interests of the East pilots. That is pretty much the definition of a DFR violation.

As I said before, LCC management was also a party to this agreement. In order for USAPA to succeed they also have to convince LCC management that they should violate the contract they signed with both the East pilots and West pilots. LCC management has recognized that they face a tremendous liability from violating the terms of that agreement, especially one that favors one group of pilots over another.

I fully recognize that every union has the ability to redistribute benefits amongst their pilots. They also have an affirmative duty to be fair to every member they represent. The majority does not have the right to stomp on the minority. Your pilots agreed that the product of the ALPA merger policy would, by definition, be fair and equitable. Nowhere in there did it say "only if I like the result." Contracts matter and this one does too. At some point you will either abide by the contract or pay the damages from a failure to do so. LCC management knows the same thing.
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Old 06-08-2010, 08:43 AM
  #142  
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alfa-romeo,

Let me address a key issue you and others have raised.

You posted "While your argument has merit on the surface, you face a large hurdle in getting this done. The East pilots chose ALPA to represent them. They chose to use the default ALPA merger policy to integrate their list. They agreed to a process and in agreeing to this process, they endorsed that the result of that process will be a fair and equitable list. The East pilots were parties to the Transition Agreement that explicitly said they will use the ALPA merger policy to create the integrated list. Now you want to violate the terms of the agreement you signed."

This is a legally accurate description. However, I would use the term "repudiate" instead of "violate" with regard to the agreement, for reasons I'll list shortly.

Before that, though, I would like to flesh out my response to a common theme on these posts. The common theme is that since all the pilots on the east side were hired by USAir and represented by ALPA, that they all share responsibility for the agreement to abide by ALPA merger policy. Technically, in fact legally, this is true, but it is not the whole story. The same law that makes it true also provides remedies.

When the Nicolau award was announced, there was universal unhappiness. But, the response by many of those active in ALPA was oriented toward addressing it within ALPA's framework. The response of a great majority of the line pilots, though, was that we've been screwed by ALPA for the last time.

In other words, the east pilots were not a monolith who embraced the ALPA process right up until they didn't like the result, then spurned ALPA. A large portion of east pilots before the merger could fairly be described as suspicious of ALPA, and unhappy with the representation. When the Nicolau award was announced, it provided the final proof that ALPA was not representing interests of the majority of east pilots.

In the ensuing drama of decertification, most of the ALPA supporters had been actively involved with union government at one time or other. In other words, they did take ownership of the agreement to abide by ALPA's result. They advocated staying in ALPA and working within the system. I believe that this demonstrates the integrity that is often referred to on these forums as a desirable trait.

Does this mean that the majority of pilots who voted for USAPA lacked integrity? No, I don't think so at all. The pilots who voted for USAPA felt that ALPA failed in its duty to represent them fairly. They felt betrayed by ALPA when the MEC voted away the pension without sending that out for ratification. They felt betrayed by ALPA when the arbitrator was not allowed to consider their date of hire in the integration. The line pilots were given no input on the seniority integration rules, or the termination of the pension. Instead, they felt victimized. ALPA had failed them utterly. This is the context in which they voted to decertify.

In this context, a vote for USAPA can be seen as an act of conscience, as a stand on principle. It was a rejection of a governing organization that had taken dues money, and returned misery, had done so for years, and seemed to be immune to complaint. The vote for USAPA was a repudiation of ALPA, and an embrace of self-determination and a willingness to stand up and fight for principles held dear.

Previously, I said that it was technically and legally true that all east pilots had agreed to abide by the outcome of the ALPA arbitration. But, the same law that makes this true, also provides opportunities to remedy egregious failures that occur because of the law. The egregious failure here is that ALPA failed its essential purpose - to represent the majority of east pilots fairly. Because of that those pilots availed themselves of a higher law - federal labor law - and repudiated ALPA, and the Nicolau award.

Those who say the analysis ends with ALPA's agreement to follow the arbitration award are saying that line pilots are subject to one part of federal labor law - that a bargaining agent can bind all its members - but not allowed to use counterbalancing parts of the law - decertification, distribution of negotiated benefits among members within DFR limits.

In other words, the law that forces the unhappy line pilots to pay dues to ALPA and be subject to ALPA's agreements also provides a way out for the pilots if ALPA fails them. Why should pilots be forced to follow the law when it hurts them, but not be allowed to follow the law when it can help them?
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Old 06-08-2010, 09:38 AM
  #143  
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Originally Posted by Hiwaymiles View Post
alfa-romeo,

Let me address a key issue you and others have raised.

You posted "While your argument has merit on the surface, you face a large hurdle in getting this done. The East pilots chose ALPA to represent them. They chose to use the default ALPA merger policy to integrate their list. They agreed to a process and in agreeing to this process, they endorsed that the result of that process will be a fair and equitable list. The East pilots were parties to the Transition Agreement that explicitly said they will use the ALPA merger policy to create the integrated list. Now you want to violate the terms of the agreement you signed."

This is a legally accurate description. However, I would use the term "repudiate" instead of "violate" with regard to the agreement, for reasons I'll list shortly.

Before that, though, I would like to flesh out my response to a common theme on these posts. The common theme is that since all the pilots on the east side were hired by USAir and represented by ALPA, that they all share responsibility for the agreement to abide by ALPA merger policy. Technically, in fact legally, this is true, but it is not the whole story. The same law that makes it true also provides remedies.

When the Nicolau award was announced, there was universal unhappiness. But, the response by many of those active in ALPA was oriented toward addressing it within ALPA's framework. The response of a great majority of the line pilots, though, was that we've been screwed by ALPA for the last time.

In other words, the east pilots were not a monolith who embraced the ALPA process right up until they didn't like the result, then spurned ALPA. A large portion of east pilots before the merger could fairly be described as suspicious of ALPA, and unhappy with the representation. When the Nicolau award was announced, it provided the final proof that ALPA was not representing interests of the majority of east pilots.

In the ensuing drama of decertification, most of the ALPA supporters had been actively involved with union government at one time or other. In other words, they did take ownership of the agreement to abide by ALPA's result. They advocated staying in ALPA and working within the system. I believe that this demonstrates the integrity that is often referred to on these forums as a desirable trait.

Does this mean that the majority of pilots who voted for USAPA lacked integrity? No, I don't think so at all. The pilots who voted for USAPA felt that ALPA failed in its duty to represent them fairly. They felt betrayed by ALPA when the MEC voted away the pension without sending that out for ratification. They felt betrayed by ALPA when the arbitrator was not allowed to consider their date of hire in the integration. The line pilots were given no input on the seniority integration rules, or the termination of the pension. Instead, they felt victimized. ALPA had failed them utterly. This is the context in which they voted to decertify.

In this context, a vote for USAPA can be seen as an act of conscience, as a stand on principle. It was a rejection of a governing organization that had taken dues money, and returned misery, had done so for years, and seemed to be immune to complaint. The vote for USAPA was a repudiation of ALPA, and an embrace of self-determination and a willingness to stand up and fight for principles held dear.

Previously, I said that it was technically and legally true that all east pilots had agreed to abide by the outcome of the ALPA arbitration. But, the same law that makes this true, also provides opportunities to remedy egregious failures that occur because of the law. The egregious failure here is that ALPA failed its essential purpose - to represent the majority of east pilots fairly. Because of that those pilots availed themselves of a higher law - federal labor law - and repudiated ALPA, and the Nicolau award.

Those who say the analysis ends with ALPA's agreement to follow the arbitration award are saying that line pilots are subject to one part of federal labor law - that a bargaining agent can bind all its members - but not allowed to use counterbalancing parts of the law - decertification, distribution of negotiated benefits among members within DFR limits.

In other words, the law that forces the unhappy line pilots to pay dues to ALPA and be subject to ALPA's agreements also provides a way out for the pilots if ALPA fails them. Why should pilots be forced to follow the law when it hurts them, but not be allowed to follow the law when it can help them?
You are mixing two different issues here. First, I fully support the LCC pilots rights to change bargaining agents. Go with USAPA, ALPA, IBT, APA, or any other union that you think serves your interests. I think leaving ALPA was a mistake for you, but that is your choice to make. Until you actually left ALPA, you were bound by all agreements they made, including the Transition Agreement.

The next question is what do you do with the agreements left behind from your previous union. USAPA sent out agency shop letters to hundreds of West pilots that were protesting USAPA by not paying dues. Their justification was the agency shop provision that ALPA had negotiated in their contract. USAPA now has a grievance that the company is not paying snapback wages they feel they are due from LOA 93 that ALPA negotiated.

Then USAPA says, well what ALPA negotiated in the Transition Agreement regarding seniority, that just doesn't apply to us, because we changed the name on the door of our union so we don't have to abide by that contract. So the position of USAPA is that everyone else you deal with, West pilots, the company, everyone else has to honor the contract with ALPA, but USAPA is given a free pass and can pick and choose which sections of the contract they will honor. If that doesn't sound a little fishy to you, then it sounds fishy to everyone else in the world.

That is the hurdle you face. Intellectually, at least USAPA should say either we have a contract and we will abide by all sections and expect all other parties to do the same, or they should argue we have no contract and it is a free for all until we negotiate a new deal with LCC management. Legally, USAPA has only one choice, honor all sections of the contract and expect all others to honor the contract. That includes seniority and the process laid out in the TA.

So if you felt ALPA didn't treat you fairly, by all means move on and good luck to you. Trying to pretend USAPA can pick and choose which parts of the contract apply to them, well good luck with that. That is why you were crushed in the initial DFR case and that is why you will lose again if try to change the Nicolau award in any substantial fashion.

Last edited by alfaromeo; 06-08-2010 at 09:40 AM. Reason: left out a sentence
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Old 06-08-2010, 09:40 AM
  #144  
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Originally Posted by Splash View Post
Unless there is a deadlock. Then arbitration takes over. In this case, binding arbitration. Right now, your contract contains important items that were arbitrated, not negotiated. You're blurring the issue.

Had they negotiated the list, we wouldn't have this problem. But they didn't. They submitted it to an arbitrator, and agreed to accept his award.

"I had my fingers crossed!" doesn't count.



If done only because you want a do-over, it is.
Splash,

You miss my point. I'm not referring to negotiations between two pilot groups within ALPA's internal seniority dispute resolution process.

I meant seniority is one of many negotiated benefits between the company and union. It is subject to contract negotiations, and distribution of benefits according to the agreement between the company and union, and within federal law.

What I hear you saying is that the east pilots must follow the law that binds them to their bargaining agent's agreements, but that they may not use the same law to try to mitigate harm if the bargaining agent fails them.

The same laws that take away the rights of individual east pilots to effectively bargain for themselves, i.e. ALPA's exclusive right to bargain for all east pilots, also provide a way for those pilots collectively to throw off the yoke of oppression.

Are you saying that the law only applies when it hurts the east pilots, but that it doesn't apply when it might help them?
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Old 06-08-2010, 10:06 AM
  #145  
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HW,

I have two questions:

1.) Why do you say that ALPA failed you when ALPA represented the West pilots, too.

2.) Why are you saying that the law might help you?
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Old 06-08-2010, 10:16 AM
  #146  
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I won't even pretend to understand all of the complexities of this issue, I can comment only from the point of view of a wholly owned pilot that sees her future at the US Airways group dwindle ever so much with every post. I think that now, facing a new sort of competition from the two newly merged mega-carriers, increased market share/manipulation and fare backstabbing from the discount carriers, that unless you guys get your "S" together and figure something out...your seniority will help you with jack squat at the unemployment office. Because that is where all US Airways pilots, mainline or W/O are headed.

Parker and company, despite their inadequacies, must be able to freely utilize all equipment and labor to answer competitive factors without having to stop first and work around the pilot group issues that dictate equipment deployment. This problem is slowly strangling our livelihood provider to death. I think Parker and co. took advantage of the whipsaw factor as long as they could but with the way the industry is headed, the advantage gained from that has now mutated into a severe disadvantage.

I think ultimately and collectively, this issue won't be resolved until all parties concerned can prioritize their actual jobs over their job seniority. If one cannot see that and realize that this issue may very well be driving management headlong into drastic action that will not be good for any of us then I submit you are too lost within your anger justified or not.

I probably will be told ten million rude ways from Friday I don't know what the hell I'm talking about but there is my .02.

Last edited by DashGirl; 06-08-2010 at 10:46 AM.
 
Old 06-08-2010, 10:36 AM
  #147  
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You actually do have the situation down pat.

Unfortunately, you are asking two sides who absolutely think they are 100% right to meet somewhere in the middle.

I sense, that both sides would see the company go down in flames, rather than negotiate with each other (again).
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Old 06-08-2010, 10:41 AM
  #148  
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Originally Posted by alfaromeo View Post
That is why you were crushed in the initial DFR case and

that is why you will lose again if try to change the Nicolau award in any substantial fashion.
Initial DFR Dismissed by the 9th Circuit Court. Please read the opinion, you are ignorant of the facts surrounding most of the proceedings.

Nicolau will not be part of the CBA.

Your emotions and misdirected ALPA loyalty feelings have nothing to do with the law.
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Old 06-08-2010, 10:58 AM
  #149  
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Originally Posted by newKnow View Post
You actually do have the situation down pat.

Unfortunately, you are asking two sides who absolutely think they are 100% right to meet somewhere in the middle.

I sense, that both sides would see the company go down in flames, rather than negotiate with each other (again).
But that's just it right? Both sides are actually 100% correct. Now all they gotta do is realize that neither side is going to get their way, put down their rifles, climb out of their trenches and walk out to the middle sof the battlefield, crack open a keg and start all over. I used to commute in the company of some pretty senior Easties, most of them, (I'm told) actually are sick to death of this and are held hostage by the USAPA leadership...Aren't we all..LOL

I have a question, and please excuse my ignorance, but why won't a permanent "seat lock/rate lock" work. And only "new" positions are subject to seniority DOH bid? In the event your position is eliminated due to downsizing and you get bumped back to a smaller airframe you would retain your pre-merger pay rate..I know it's not that simple, but if you protect pilots from being bumped from their current slots why is DOH still so volatile?
 
Old 06-08-2010, 11:12 AM
  #150  
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Originally Posted by DashGirl View Post
But that's just it right? Both sides are actually 100% correct. Now all they gotta do is realize that neither side is going to get their way, put down their rifles, climb out of their trenches and walk out to the middle sof the battlefield, crack open a keg and start all over. I used to commute in the company of some pretty senior Easties, most of them, (I'm told) actually are sick to death of this and are held hostage by the USAPA leadership...Aren't we all..LOL

I have a question, and please excuse my ignorance, but why won't a permanent "seat lock/rate lock" work. And only "new" positions are subject to seniority DOH bid? In the event your position is eliminated due to downsizing and you get bumped back to a smaller airframe you would retain your pre-merger pay rate..I know it's not that simple, but if you protect pilots from being bumped from their current slots why is DOH still so volatile?
What you are really asking them to do is put their emotions aside, which is not likely. I got hired at my airline 9 years after one of its mergers and still heard the emotional debates until the fences came down 11 years later. Hell, they still talk about it.

What's obvious is that there is nothing more important to a pilot than his or her seniority. Now, because of it and the positions the three sides have taken, it seems that this merger has been backed into a corner it can't get out of.

I like solving puzzles. But, this one is unsolvable.
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