USAPA wins appeal!!!!!!

[BeCareful!]

If I thought you could afford it on your scab salary, I'd encourage it. But Sadly, with your scab payrate, your family needs your meager scab wages more than anybody else. Nothing changed. USAPA is promising to deliver you to the DOH promised land like they did 2 years ago...and still you have nothing, (which you should be used to by now) Want DOH? Go for it. The laser site is on your forehead. Move.

Hey now, don't go trashing the fine work ALPA did to "save" this company time after time after time after time. Those wages you refer to are what keep you making your only-slightly-higher ALPA wages, since, well, your side of the company isn't actually profitable most of the year.

As for your super brave, super awesome stance that our upcoming DOH list and contract is somehow going to cause a "laser" to be trained on our collective foreheads....let me guess, you stopped reading the 9th stuff after the word ripeness, right? Do you realize that the opinion expressed later matters, and that the only reason those items weren't ruled on is that once you rule that something isn't ripe, the courts stop there?

You might want to let your lawyers decide if they want to challenge what the Supreme Court has already ruled is a "wide range of reasonableness." But....oh sheeze, I forgot I was on Flight Info....I don't want to confuse you with the facts anymore. Carry on.....

 

[Groucho]

En Banc Appeal

Some information on En Banc appeals from various sources.

Non-publication

Non-publication of opinions, or Unpublished opinions, are those decisions of courts that are not available for citation as precedent because the judges making the opinion deem the case as having less precedential value. In the system of common law, each judicial decision becomes part of the body of law used in future decisions. However, some courts reserve certain decisions, leaving them "unpublished", and thus not available for citation in future cases. It has been argued that non-publication helps stem the problem of too much written material creating too little new law.[1] Specifically, the number of federal appeals filed annually grew from 23,200 to 33,360 between 1980 and 1985,[2] and 55,000 federal appeals were filed in 2000.[3] Selective publication is the legal process which a judge or justices of a court decide whether a decision is to be or not published in a reporter.[4] "Unpublished" federal appellate decisions are published in the Federal Appendix. From 2000 to 2008, the U.S. Court of Appeals for the 4th Circuit had the highest rate of non-publication (92%), and more than 85% of the decisions in the 3rd Circuit, 5th Circuit, 9th Circuit, and 11th Circuit went unpublished.[5] It has been argued that non-publication encourages expedient, not careful, consideration as the basis for judgment, and constitutes an invitation to error, incompetence, corruption and tyranny.[6]


So let’s see, if the case is deemed to have less precedential value the opinion is not published. If it is precedential then it may be published. The 9th ruling in Addington v. USAPA was published which means it is precedential for the 9th circuit. One would think that two senior judges would schlep this thing around the chambers asked the other judges if they had a problem with publishing. Otherwise in a large circuit like the 9th, with 26 Circuit judges would be often publishing against itself.

If this is in fact what has happened what are the real chances of an En Banc hearing? What do other sources say about En Banc.

En Banc​

Definition: (French) by the full court. Also spelled in banc and en bank.
Some appellate courts which have a large number of judges and a large caseload often divide into divisions or panels for each case. For example, United States Appeals Courts cases are usually heard by three judge panels. Sometimes, on the request of the panel, or one of the litigants, the case is later reheard by the full court, or, en banc.

Excerpt from the Federal Rules of Civil Procedure:

FRAP 35. DETERMINATION OF CAUSES
BY THE COURT IN BANC​

(a) When Hearing or Rehearing In Banc Will Be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals in banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.
(b) Suggestion of a Party for Hearing or Rehearing In Banc. A party may suggest the appropriateness of a hearing or rehearing in banc. No response shall be filed unless the court shall so order. The clerk shall transmit any such suggestion to the members of the panel and the judges of the court who are in regular active service but a vote need not be taken to determine whether the cause shall be heard or reheard in banc unless a judge in regular active service or a judge who was a member of the panel that rendered a decision sought to be reheard requests a vote on such a suggestion made by a party.

It looks rather improbable, based on the excerpts above, that an En Banc hearing of Adddington will be granted.

 

[Turtle21]

What the 9th means for the Nic

From Another Forum

Either some angry AOL'er or your lawyers are not explaining the ramifications of the 9th Circuits ruling to you or the fact they had this opinion published and the meaning of that. Not once does the 9th Circuit reference the Nicalou award as a seniority list but always a "seniority proposal". An argument made by both, USAPA's legal team in Wake's court, and America West pilot group's own merger counsel Jeff Freund in the ALPA vs ALPA lawsuit. Numerous times and clearly with intent the 9th Circuit refers to the Nicalou Award as an "internal union process", which again is the very argument Seham made all along. The court made it clear, they leave USAPA free to bargain in "good faith" pursuant to its Duty of Fair Representation and they make it clear by including East pilots in the statement that is a collective interest. Courts are very precise with the language they use and it is interesting and both clear, the intent of the 9th Circuit in reading the transcripts from Wake's court, to arguments of Seham, to the language used in the 9th Circuit ruling. In their opinion, they cited the very argument that Seham made in district court that ALPA's own agreements and "seniority proposal" created the potential for an indefinite veto and impasse. It isn't coincidence when Jurists are precise in that way, and it was a very gentle but not to subtle redressing of what happened in Wake's court.

As discussed numerous times, the legal standard if a DFR claim is made toward USAPA in the future will have nothing to do with the Nicalou Award, it will be the standard of "Good Faith" pursuant to a unions DFR responsibilities. USAPA will only have to show that its seniority integration methods fall within a wide range of reasonable behavior and the litmus will be the comparison to the vast body of evidence, mountains and mountains of it, showing that unions historically integrate similarly skilled individuals in the same craft by DOH. They could produce 1000s of examples if necessary including the other labor unions on the property, its own history in the Allegheny-Lake Central, Allegheny-Mohawk, USAir-PSA, and USAir-Piedmont mergers. They could show ALPA merger policy is vague and ever changing according to political whims of its most powerful members. I.e., UAL backing the language of preference toward Date of Hire in 1986 because they had 18 year DC8, 747, 727, and DC10 Flight Engineers coming into the 80's, to being behind the change in 1992 removing the language because of changed demographics, to being behind the change in 2010 adding longevity and category and status which now advantages its position in merging with CAL. There is such a body of longevity based integrations as the standard for 99.9% of labor unions, the history of the political shifts that has created a vague and changing ALPA policy, to the case precedent of DOH in DFR lawsuits.

The part referring to a "unquestionably Ripe DFR case" when a contract is ratified, is simply a statement of fact. By rendering this decision and ordering it published the 9th Circuit has just issued precedent that a claim can only be considered Ripe with a ratified agreement, that is all. In no way does it infer that any claim made by the Addington plaintiffs,or any others in the future would be legitimate, have merit, or offer success in any way. The standard though now with this issuance of their ruling and dismissing Wake's ruling is that a case must be made for a breach of "Good Faith" pursuant to a USAPA's DFR obligations, not that they didn't use the "internal ALPA generated seniority proposal". Again precise language, well defined in labor law and responsibilities of a union in its DFR obligations. There is a reason, Wake would not allow a true defense in defending against the plaintiffs claim of a breach in "good faith" or properly instructing the jury in its legal definition as it relates to DFR and likewise, a reason the 9th Circuit, though not obligated in reversing on ripeness, took the opportunity to clarify the legal standard under which USAPA's legal responsibilities lay.

 

[Bringupthebird]

Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.

When the entire legitimacy of binding arbitration is called into question, I'd say it's exceptional importance.

Except to those who would rather pick and choose the laws that suit them.

 

[Bringupthebird]

Give-up the Nick willingly and become part of a bigger venture, or be spun off to the likes of Republic Air....

Cleary's in USAPA castle now with a coin, "Heads they get spun off, tails we win our snapbacks."

 

[BeCareful!]

Awe Turtle....why did you have to do it? You know how these FI.Mis.info.commers HATE facts that fly in the face of their arguments about integrity and binding arbitration. They don't care that Nic was only a private ALPA affair....they want to make a BIG deal out of this!

George Nicolau's list was inane. The 9th circuit verified it. Only under the assinine "representation" and "leadership" of John Prater's ALPA could this utter demolition of long-standing ALPA pilot career's occur. Thankfully, USAPA was founded NOT as a means of overturning this debacle, but because of the massive, repeated, and non-stop failures of the ALPA gravy train boys who had long since forgotten that they had a real job to do: representing pilots!

Anyway, Turtle, you should know that too much truth just brings these guys down. Nothing like real facts to shut an FI.MIS. INFO.COM argument the he!! up.

 

[Fast43]

Awe Turtle....why did you have to do it? You know how these FI.Mis.info.commers HATE facts that fly in the face of their arguments about integrity and binding arbitration. They don't care that Nic was only a private ALPA affair....they want to make a BIG deal out of this!

George Nicolau's list was inane. The 9th circuit verified it. Only under the assinine "representation" and "leadership" of John Prater's ALPA could this utter demolition of long-standing ALPA pilot career's occur. Thankfully, USAPA was founded NOT as a means of overturning this debacle, but because of the massive, repeated, and non-stop failures of the ALPA gravy train boys who had long since forgotten that they had a real job to do: representing pilots!

Anyway, Turtle, you should know that too much truth just brings these guys down. Nothing like real facts to shut an FI.MIS. INFO.COM argument the he!! up.

Don't look now but many of those same Alpa Gravy train boys are now running your union..........

Also were you aware of the part of RLA Law that talks about a CBA's obligations to represent all members FAIRLY

Majority Rules is tempered with the constraint, A union cannot advance the Majority at the expense of the Minority.

Since the Nicolau Award is the current list for Joint ops, as accepted by the Company. If usapa were to compel the Co. to change that list to one of their liking. It would be compared to the Nic list and if the west pilots are disadvantaged by it compared to the Nic and If the east pilots are better off with the new list compared to the Nic list.............What do you think that sounds like. Clearly the east would have advanced themselves at the expense of the west pilots.


Sure there are skeptics out there, I urge you to call a rep and ask them. When do we get to do what we want and force them with our Majority vote to just live with it.


Can't call them.............read the rules. It's called the RLA.

Fast

 

[BeCareful!]

Fast,

You make several inaccurate assumptions. Did you read the part about USAPA being at least as free to modify the Nic or the seniority as ALPA was (which it was trying to do)?

Did you read the part about "wide range of reasonableness." ???

Are you aware that Judge Wake instructed the jury to rule on bargaining in "good faith" but then disallowed them from having an actual definition of "good faith"?

Did you read that the 9th circuit considers the Nicolau "award" un-ratifiable?
So, if I'm an east pilot, and I'm watching USAPA try to negotiate a contract that the 9th circuit says will never pass, do I have a DFR case?

The Nicolau "award" was inane. It treated US Airways east pilots as if we had two separate entities with vastly different expectations. The top 517.....apparently....had fantastic expectations. The rest of us, well, it's like we worked for some other company entirely. Total, unexplainable BS. These arbitrators don't always get it right. In this case, not even close. Should your career continue long enough, I'm sure you'll be on the "other" side of one of these botched arbitrations and you'll likely see things from a different perspective.

USAPA's Conditions and Restrictions provide generous protections that you should at least consider. In fact, with the number of east pilots still living near your only base, your life will likely be less disrupted with the C&R's than with Nic. Fences make good neighbors, too. Some food for thought.

 

[michael707767]

The Nicolau "award" was inane. It treated US Airways east pilots as if we had two separate entities with vastly different expectations. The top 517.....apparently....had fantastic expectations. The rest of us, well, it's like we worked for some other company entirely.

I don't think it was right to put widebody captains and FOs on the top of the list. I don't think a widebody FO is a higher position than a narrowbody captain. The higher number of retirements should have been accounted for, though I think that's one reason Nicolau put all the widebody pilots on the top of the list, and not just the captains.

Should the list have come out more favorable to the East pilots? Probably. Is it far enough out of line to discount the whole arbitration process? No.

The bottom line is you are setting up a situation where the future of merging seniority lists is that the pilots coming from the smaller airline will be voted out of their rightful place on the list by the larger pilot group.

 

[Fast43]

Fast,

You make several inaccurate assumptions. Did you read the part about USAPA being at least as free to modify the Nic or the seniority as ALPA was (which it was trying to do)?

Sure did, Alpa was free to abandon the Nic and risk a surefire DFR violation, so now they see usapa in the same position. Certainly you realize what they did with that statement you seem to already have memorized. They just tied usapa to the Nic. Anything usapa does will be compared to the Nic and If they advance the Majority at the expense of the Minority they will be stopped again. Alpa was indeed trying to adjust the Nic. This is possible with negotiated consent of the parties of the Arbitration only. So tell me who that negotiation would be with. usapa has removed the West Mec therefore no one out west has Legal Standidng to do this. Voting in usapa for this reason cemented the Nic.

Did you read the part about "wide range of reasonableness." ???

Sure did, Did you see the part as well that said usapa has to fulfill its obligation to represent everyone FAIRLY. I'll repeat that here again. You are not allow to advance a Majority group at the expense of the Minority.

Are you aware that Judge Wake instructed the jury to rule on bargaining in "good faith" but then disallowed them from having an actual definition of "good faith"?

Certainly you saw that they did not rule on the merits of the case. So your thoughts here are just that, yours.

Did you read that the 9th circuit considers the Nicolau "award" un-ratifiable?
So, if I'm an east pilot, and I'm watching USAPA try to negotiate a contract that the 9th circuit says will never pass, do I have a DFR case?

Clearly your not keeping up here. How would that case be ripe and this case is not.
The Nic list is currently the accepted list and has not been changed even before the Injunction was filed. Did you file one then??
Their opinion of a vote that has not been allowed to occur means what in the RLA area. Do we now go to the 9th Circuit to see what will pass and what won't before we vote. They nailed that one didn't they.

The Nicolau "award" was inane. It treated US Airways east pilots as if we had two separate entities with vastly different expectations. The top 517.....apparently....had fantastic expectations. The rest of us, well, it's like we worked for some other company entirely. Total, unexplainable BS. These arbitrators don't always get it right. In this case, not even close. Should your career continue long enough, I'm sure you'll be on the "other" side of one of these botched arbitrations and you'll likely see things from a different perspective.

Why do you call the explained, unexplainable? Clearly you have not read the Nicolau Award. He explains all this. Maybe instead of parroting what other mis-informed east pilots have said, you should read it yourself and gain an understanding of why he did what he did. You don't have to like it but you should at least understand why he did what he did.

USAPA's Conditions and Restrictions provide generous protections that you should at least consider. In fact, with the number of east pilots still living near your only base, your life will likely be less disrupted with the C&R's than with Nic. Fences make good neighbors, too. Some food for thought.

I would have thought you would be aware by now that a Jury of 9 unanimously found these conditions and restrictions unfair to West pilots. I watched the video explaining these so I could be informed and the word Generous made me laugh. Clearly and impartial Jury agreed. Certainly even an evidently old sage such as yourself understands that this Jurys verdict was declared too early, NOT incorrect. There is a difference.

I'm sure you will not believe any of this I have written. So I implore you to speak to your reps and ask them "when do we get to do what we want and use the force of our Majority vote to make the west live with it" you need to hear the answer to that question from someone you believe. Based on RLA Law that says you may not advance the Majority at the expense of the Minority. It won't be anytime soon.

Fast