West pilots appeal to the Supreme Court

[Cowboy75]

Part of Leonidas' update 10/06/10

Yesterday, attorneys for the West pilots filed our appeal to the Supreme Court of the United States. Submission of a petition (in legal parlance, a “writ of certiorari” or just “writ,”) to the Supreme Court is different from filings in all other courts, both federal and state. A writ must be printed and submitted via exacting specifications – font, paper size and weight, number of copies, margins, etc. – and then mailed . . . as in USPS. USAPA will have an opportunity to respond before the writ is considered by the Supreme Court. It will take at least four of the Justices to agree to hear our case. If that happens, then there will be another round of briefs filed followed by oral arguments sometime next Spring.

The writ clearly explains the negative implications of the Ninth’s opinion on not only the West, but on the airline industry itself and on organized labor as a whole. The Ninth has basically created a situation where the majority within a union can stop the entire collective bargaining process simply because they do not like the result of arbitration. Already we have seen that the Ninth’s decision created a precarious position for US Airways. It might be easy and antiseptic to tell union members they must wait until the completion of negotiations before they have a ripe DFR claim, but such a rule does nothing to address the reality of RLA negotiations.

 

[Turtle21]

Two Sides To Every Coin

Today, October 6, 2010, Attorneys for USAPA received copies of the Addington plaintiffs’ Petition for Certiorari to the United States Supreme Court, which is a request that the Supreme Court take the case in order to review the Ninth Circuit’s Addington decision. The Supreme Court appeal is not automatic. Rather, the Supreme Court first decides whether the case even warrants its review, and that is what this Petition is asking for. Pursuant to Supreme Court Rules, USAPA will file an opposition to this petition within thirty (30) days of the petition being docketed.

USAPA's Attorneys are in the process of reviewing the filing in its entirety. However, the Petition appears to rely heavily on the recently enacted McCaskill-Bond Amendment, which provides for arbitration of seniority integration disputes under certain circumstances. The Addington plaintiffs' reliance on McCaskill-Bond in their Supreme Court Petition is curious for a number of reasons:

The legislation was not in effect at the time of ALPA's arbitration following the merger of US Airways and America West, and the general rule is that statutes do not have retroactive effect;
During the entire course of the district court litigation, the Addington plaintiffs never raised any argument based on McCaskill-Bond. The failure to raise any such argument at the district court presents two additional factors against presentation of their present argument in the Supreme Court Petition:
It represents plaintiffs' tacit admission that such an argument was not worthy of consideration; and
It represents plaintiffs' waiver of any such argument because it was raised for the first time on appeal
Even under McCaskill-Bond, the statute does not apply to merging workgroups represented by the same union. In this case, the need to revisit Nicolau arose from the provision under ALPA Merger Policy for either pilot group to exercise their democratic veto.

Plaintiffs also seem to place a lot of emphasis in their Supreme Court Petition on the $1.8 million that they expended in order to obtain Judge Wake’s Order. However, in our view, this was self-inflicted because USAPA advised plaintiffs on numerous occasions that the matter was not ripe for adjudication – a fact observed by the federal district court in Breeger as well as by the Ninth Circuit Court of Appeals in Addington. Therefore, in our opinion, Plaintiffs' Supreme Court Petition for Certiorari is merely throwing more good money after bad.

 

[Cowboy75]

Turtle,

Glad to see you posted USAPA's update. At least people can form opinions after reading responses from opposing counsel.

 

[B-atch]

Good!! Hopeful that this will bring CLOSURE...
Why did AOL wait soo long to file?

 

[Cowboy75]

Good!! Hopeful that this will bring CLOSURE...
Why did AOL wait soo long to file?

Not sure for the reason for a delay in filing. I thought there would have been an announcement yesterday but it came today. Attorneys for both sides keep their cards covered for good reasons.

We're just line pilots after all....

 

[Taco Rocket]

Is USAPA correct, that the West has put $1,800,000 in legal fees into this?

 

[Jim]

A great investment. The west pilots will get it back plus damages when this is finally done.

 

[Metrojet]

Is USAPA correct, that the West has put $1,800,000 in legal fees into this?

They have been billed $1,800,000 in attorney fees. Not sure what they still owe, but I believe it is still over 7 figures.

Metrojet

 

[eaglesview]

If this takes much longer the West will have wasted all this time and money as a large percentage of East pilots will have retired anyway. Put up a fence, watch them grow old and you'll be in the same spot you would have with the nic anyway. (and not have spent all that money)

 

[Redmeat]

If that happens, then there will be another round of briefs filed followed by oral arguments sometime next Spring.

Wow...no matter what happens the east effectively created artificial fences that lasted YEARS.

 

[TWA Dude]

Put up a fence, watch them grow old and you'll be in the same spot you would have with the nic anyway. (and not have spent all that money)

How nice to hear from our favorite USAPA apologist. Sounds like an argument the AAA Merger Committee argued in front of the arbitration panel. They didn't buy it. From page 25 of the Award, "[FONT=&quot]Yet, it cannot be disputed [/FONT][FONT=&quot]that there were differences in the financial condition of both carriers [/FONT][FONT=&quot]and that US Airways was the weaker. This necessarily means that [/FONT][FONT=&quot]career expectations differed and that US Airways pilots had more to [/FONT][FONT=&quot]gain from the merger than their new colleagues." [/FONT]90% of the gains in a new contract will go to the East.

 

[TWA Dude]

Wow...no matter what happens the east effectively created artificial fences that lasted YEARS.

That is correct. Essentially, the West lost the war when USAPA was voted in. (After all, the whole reason for ALPA merger policy is to prevent a larger group taking advantage of a smaller group.) Everything since then is just degrees of damage-control. We can hope for justice with the East being punished but due to the vagaries of the courts the odds are against us.

 

[BeCareful!]

That is correct. Essentially, the West lost the war when USAPA was voted in. (After all, the whole reason for ALPA merger policy is to prevent a larger group taking advantage of a smaller group.) Everything since then is just degrees of damage-control. We can hope for justice with the East being punished but due to the vagaries of the courts the odds are against us.

Is that really the "whole reason" for ALPA merger policy? I didn't know that. What if two groups are the same size? Then, no need for policy? That's sort of a weird thing to say.

Not that I care since we aren't ALPA now anyway. Just a curious point.

 

[eaglesview]

How nice to hear from our favorite USAPA apologist. Sounds like an argument the AAA Merger Committee argued in front of the arbitration panel. They didn't buy it. From page 25 of the Award, "[FONT=&quot]Yet, it cannot be disputed [/FONT][FONT=&quot]that there were differences in the financial condition of both carriers [/FONT][FONT=&quot]and that US Airways was the weaker. This necessarily means that [/FONT][FONT=&quot]career expectations differed and that US Airways pilots had more to [/FONT][FONT=&quot]gain from the merger than their new colleagues." [/FONT]90% of the gains in a new contract will go to the East.

THey (the east)have succeded in and will continue , due to our legal system, in drawing this thing out to where they have built their own fence.

Until contractual gains are more than the pay raise associated with an upgrade there is no motivation for the east to sign a contract. That remains the same. There are know winners here. The sad part is both sides are dug in so deep they each think there can be.

PS anything can and does get disputed, You would think NIC would know this. I know you do.

 

[vetrider]

Is that really the "whole reason" for ALPA merger policy? I didn't know that. What if two groups are the same size? Then, no need for policy? That's sort of a weird thing to say.

Not that I care since we aren't ALPA now anyway. Just a curious point.

No, when one group is much larger, they can run with the NMB single carrier status ruling, and make a mockery of due process until the law finally catches up with them.

There have been costs associated with not just laying down, but nowhere near as high as those associated with just laying down and taking it.

 

[Ty Webb]

WTF, Easties?

WTF, Easties?

You work for a losing company for decades, despite every indication that it is a sinking ship, riding it out to the bitter end.

Then, at the last second, you were tossed a lifeline . . . . You went to arbitration, you lost, get over it and move on!

What the hell is wrong with you people? Is there no limit to your selfishness?

 

[vetrider]

THey (the east)have succeded in and will continue , due to our legal system, in drawing this thing out to where they have built their own fence.

Until contractual gains are more than the pay raise associated with an upgrade there is no motivation for the east to sign a contract. That remains the same. There are know winners here. The sad part is both sides are dug in so deep they each think there can be.

PS anything can and does get disputed, You would think NIC would know this. I know you do.

Of course there are no winners here. But the east walked out of the established joint negotiation process and stuck a gun in our face. What are we supposed to do, just give them our wallet?

Are you under the impression the east has been reasonable since the walkout? All they did was demand everything they dreamed of from the beginning, which coincindentally buries the west, thinking that they could force it.

The east is going for the kill, and the west is defending itself, out of nothing but necessity. It's not that we like it, or that we are being obstinate, it is flat out necessity. The east is offering nothing, NOTHING.

 

[charlie2]

WTF, Easties?

You work for a losing company for decades, despite every indication that it is a sinking ship, riding it out to the bitter end.

Then, at the last second, you were tossed a lifeline . . . . You went to arbitration, you lost, get over it and move on!

What the hell is wrong with you people? Is there no limit to your selfishness?

What do you mean we "lost"? Everyone else on this board says it was a fair arbitration so if it is fair than no one "lost" right?

 

[TWA Dude]

Is that really the "whole reason" for ALPA merger policy?

From the ALPA manual:

B. PURPOSE AND SCOPE OF MERGER POLICY
REAFFIRMED - Executive Board May 1996
1. The fundamental purpose of this policy is to provide protection for the employment rights and interests of ALPA flight deck crew members in an orderly, expeditious, and equitable manner.

and further down:

In joint session, the merger representatives should attempt to match equities to various methods of integration until a fair and equitable agreement is reached, keeping in mind the following goals, in no
particular order:
a. Preserve jobs.
b. Avoid windfalls to either group at the expense of the other.
c. Maintain or improve pre-merger pay and standard of living.
d. Maintain or improve pre-merger pilot status.
e. Minimize detrimental changes to career expectations.

So I did take a certain liberty in interpretation since it would be superfluous for the Policy to mention avoidance of any "tyranny of the majority".

What if two groups are the same size? Then, no need for policy?

non sequitur

That's sort of a weird thing to say.

Trying to justify the East's nefarious actions since the Nicolau list came out is beyond weird.

Not that I care since we aren't ALPA now anyway.

Not so. You care very much since you're trying so hard to justify the East's actions.

 

[TWA Dude]

THey (the east)have succeded in and will continue , due to our legal system, in drawing this thing out to where they have built their own fence.

True. Kind of like snatching a woman's purse without getting caught. Not something people with integrity like to brag about. What's your excuse?

PS anything can and does get disputed, You would think NIC would know this. I know you do.

Huh? I don't think George Nicolau gives a crap. He's still actively arbitrating airline cases.