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.

 

[Ty Webb]

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?

You lost your naked and shameless grab for what wasn't rightfully yours, that's what you lost.

Look at what you wrote- it is very apparent how wrong it is to every airline pilot but yourselves. You guys have destroyed what could have been a good airline.

 

[241BlujucCktl]

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".
non sequiturTrying to justify the East's nefarious actions since the Nicolau list came out is beyond weird.Not so. You care very much since you're trying so hard to justify the East's actions.

"A certain liberty in interpretation", a creative liberty would be putting it mildly. Thanks for posting that part of the ALPO merger policy. It demonstrates the complete failure of ALPO. "Preserve jobs," ALPO failed right off the bat on that one. The money from the sale of the EMB-170's to consecrate this abomination of a merger cost 300+ pilot jobs. "Avoid windfalls to either group at the expense of the other," a 16 year pilot placed below a new hire on the new proposed seniority list a windfall, more like an never ending microburst with wind speeds at f5. Improve pre-merger pay, standard of living and pilot status, no improvement just furloughs. "Minimize detrimental changes to career expectation," with the massive amount of retirements from the East side the lowest seniority east pilot pre-merger would have been a captain in 2009 (delayed of course by the age 65). I sincerely doubt E.V. will be a captain in 2014. Other monumental failures by ALPO include summarily terminating the east pilot pension without a pilot vote and not investigating if the pension was underfunded or by how much it was underfunded. The result, a 30 year career gets about $30k per year from the pbgc. I know this means nothing to you TWA Dude because you probably too self absorbed to realize that if those guys could afford to retire it would benefit both sides.

 

[TWA Dude]

I know this means nothing to you TWA Dude because you probably too self absorbed to realize that if those guys could afford to retire it would benefit both sides.

Lemme see if I can shorten your illegibly-long paragraph: blah blah it's ALPA's fault blah blah I disagree with Nicolau so you suck blah blah. Tell it to the judge.

 

[241BlujucCktl]

Thanks for condensing. Do you have any response as to the content? I appreciate your patience with my illegibly-long typing, between flights and using the phone's keyboard. Here is 1 4 u. 4,777,666,9 88,7 9,33,33 555,444,8,8,555,33 6,2,66.

 

[TWA Dude]

Do you have any response as to the content?

If you insist.
Nicolau followed ALPA's merger policy. Your disagreement is irrelevant because he's the one tasked with interpreting it.

You blame ALPA for your pension loss yet it wasn't Woerth or any other monolithic ALPA National people who made that decision. It was your local elected reps. Take some responsibility. And in any case, no pilot pensions can survive one bankruptcy let alone two. It was gone and no union could've done a darned thing about it.

 

[charlie2]

You lost your naked and shameless grab for what wasn't rightfully yours, that's what you lost.

Heh heh he said naked. The above statement is the almost word for word what eastinfections say about westicles!!!! We have so much in common!

Look at what you wrote- it is very apparent how wrong it is to every airline pilot but yourselves. You guys have destroyed what could have been a good airline.

Never was or will be a good airline but out of idle curiousity why did you think it could have been?

 

[Metrojet]

Thanks for condensing. Do you have any response as to the content? I appreciate your patience with my illegibly-long typing, between flights and using the phone's keyboard. Here is 1 4 u. 4,777,666,9 88,7 9,33,33 555,444,8,8,555,33 6,2,66.

That was funny!

Metrojet

P.S.- now matter what language or code you write in - TWA Dude is only thinkig about himself anyway

 

[michael707767]

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)

Though I support the west pilots and think that ultimately they will win all lawsuits, from a practical standpoint I tend to agree with you. On the other hand, I admire the west pilots for fighting this. Otherwise any merger in the future will basically come down to which group has more pilots and what do you have to do to appease them.

 

[TWA Dude]

P.S.- now matter what language or code you write in - TWA Dude is only thinkig about himself anyway

I'm glad you wrote this in the morning because if I'd read it last night your stinging verbal barb would've left me crying myself to sleep.

But since you've seen fit to lob an accusation of selfishness I'll go ahead and challenge it. From the first announcement of the AWA/AAA merger I declined to post any opinion of what constituted a fair integration and instead stated my confidence in the fair process of negotiation--> mediation--> arbitration, something denied my TWA brethren by the "protecting their own" APA. So then after arbitrator Nicolau ruled I accepted it.

If my acceptance of binding arbitration elicits an accusation of selfishness from the likes of you then so be it. But it begs a discussion of what integration method YOU support: using your tyranny of the majority to impose a list the East wants. So, Mr. Tough Internet Message Board Man-Of-Genius, how are your words and actions not INFINITELY more selfish than mine?

(prediction of Metrojet's response if he's man enough to even try:
blah blah ALPA sucks blah blah Nicolau is senile blah blah I'm entitled to whatever I want blah blah)

 

[Metrojet]

I'm glad you wrote this in the morning because if I'd read it last night your stinging verbal barb would've left me crying myself to sleep.

But since you've seen fit to lob an accusation of selfishness I'll go ahead and challenge it. From the first announcement of the AWA/AAA merger I declined to post any opinion of what constituted a fair integration and instead stated my confidence in the fair process of negotiation--> mediation--> arbitration, something denied my TWA brethren by the "protecting their own" APA. So then after arbitrator Nicolau ruled I accepted it.

If my acceptance of binding arbitration elicits an accusation of selfishness from the likes of you then so be it. But it begs a discussion of what integration method YOU support: using your tyranny of the majority to impose a list the East wants. So, Mr. Tough Internet Message Board Man-Of-Genius, how are your words and actions not INFINITELY more selfish than mine?

(prediction of Metrojet's response if he's man enough to even try:
blah blah ALPA sucks blah blah Nicolau is senile blah blah I'm entitled to whatever I want blah blah)

Good Morning TWA DUDE -

I am glad you had a good nights sleep! As to my barb at you - I was just stating that you (don't take this personally) or any AOL member have not even attempted to compromise on "our SLI". It is either Nic or sue. If it was really a fair methodology - then 10% of all pilots would have been happy and 90% would be unhappy - thats not what actually happened - 100% of the West felt they won the lottery while 90% of the East lost - the only pilot group who felt somewhat fairly integrated were the East "517".

We (West and East) have to meet in the middle of the street. Nic is not even close to the white line.

I was on the USAPA web site reviewing the hundreds of documents and legal briefs that have been filed from both sides - it is amazing (and costing us both lots and lots of dollars!). Believe me when I throw this out - there aren't as many East pilots that want to bid PHX as there are senior West FO's who would bid Captain out East in a heartbeat, or West Captains that want to bid wide-body in PHL. Thats the truth - whether you want to admit it or not. So until the "AOL" group accepts that - we stay separate and the East pilots get some major attrition in 2 years and 2 months - and you get to keep your position in PHX.

As I said in another post - I'll retire in CLT if you promise to retire in PHX.

Metrojet