Statutory Duty of Fair Representation: LOU (One List)

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Statutory Duty of Fair Representation: LOU (One List)

#1 Post by China_CAAC_Exam » Tue Dec 04, 2018 8:48 am

I am waiting for the ALPA Archivist to me some additional documentation pertaining to the 1956 BOD meeting (Fourteenth Convention). With time freed up to consider other perspectives, I turn now to the question of ALPA submitting an LOU to WJ that purportedly addresses instituting a One List style preferential treatment of WJE pilots now at WJ or WJE pilots destined to flow to WJ.

I am currently agnostic as to the contours a DFR claim that departs from the normal conception of a DFR complaint, that of a violation of a CBA by the company, and the subsequent request of the union by a bargaining unit member to pursue a grievance, which the union decides not to pursue. At that point a party might file a DFR claim with the CIRB. Unlike many provincial labour legislative schemes, in the Canada Labour Code, the DFR is only owed to a bargaining unit with respect to rights under a collective bargaining agreement. Elsewhere, the DFR applies to all facets of employee representation.

It does seem strange that on one hand ALPA has spent considerable time, effort, and resources in negotiating a CBA that applies fairly and uniformly to all bargaining unit members (OTS and those who have flowed from Encore), including a position on a seniority list (that is more than likely by DOH at WJ) with all attendant rights (that will flow in part from Kaplan's Award) that such position guarantees, and meanwhile on the other hand, it is now allegedly attempting to remove those negotiated rights from some of those bargaining unit members (OTS pilots).

The issue, if the LOU speculation is true, is can they do that? Apart from a contractual breach claim, will ALPA be guilty of violating its duty of fair representation to OTS pilots if it negotiates an LOU that takes away their rights?

What if ALPA and the company chose to only remove my rights, for instance? Could the two parties simply put me on the bottom of a seniority list if they chose to do so? Or restrict only my rights to upgrade to the 787? Put another way, in the parlance of DFR case law, does ALPA have a "legitimate union purpose" for damaging the OTS pilots? In a seniority list integration, it is accepted that there will be losers and winners and that the union has a legitimate union purpose in attempting to balance the equities and hurting some parties. But in the case at hand, what is the purpose for ALPA trying to give preferential treatment to some, while discriminating against others? Merely to satisfy an election promise? Is ALPA going to receive benefits from WJ that will benefit the overall bargaining unit if it damages the rights of the OTS pilots.

Simply put, is what ALPA is trying to do free from arbitrary, discriminatory, or bad faith behaviour if it negotiates this LOU? Is it simply a matter if 50%+1 agree, then the union can do whatever it likes to certain members of its bargaining unit? Is it really that simple?

Stand by for more discussion of this issue over the next few days.
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Last edited by China_CAAC_Exam on Tue Dec 18, 2018 8:10 am, edited 1 time in total.

apathetic
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Re: Duty of Fair Representation: LOU (One List)

#2 Post by apathetic » Tue Dec 04, 2018 2:44 pm

Ad hominem attacks aside, you are an absolute lunatic.
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Re: Duty of Fair Representation: LOU (One List)

#3 Post by MrMerth » Tue Dec 04, 2018 3:34 pm

It would appear to me, as a simple minded individual that your purpose is to desperately prove that in no way is it possible that the list can stay intact. Despite the facts being told time and time again that it is going to happen. I’m not sure what your angle is here. I’m not trying to be rude or dismissive of your opinion but why is that when the union says the one list will be preserved you shout to the heavens dragging up documents from the 50s. Get with the times man it IS going to be preserved. If it’s about saving face don’t worry about it. Sometimes we’re all wrong.

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Re: Duty of Fair Representation: LOU (One List)

#4 Post by cloak » Tue Dec 04, 2018 4:17 pm

Well, he's saying that based on ALPA's own constitution such deal is not possible or subject to litigation; and barring a surreptitious voodoo deal, he may have a case!
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Re: Duty of Fair Representation: LOU (One List)

#5 Post by China_CAAC_Exam » Tue Dec 04, 2018 4:43 pm

MrMerth, I hope your optimism is rewarded. Sadly, the documents and law that you so casually dismiss, actually do apply to this issue. I don’t mind being wrong. There have actually been two times in my research when I thought, well maybe it can be achieved. Then, after I re-examined the evidence and the issues, I realized that the two situations did not apply.

I’ll get back to this thread on DFR issues in a while. The DFR angle raises different issues from a breach claim, but I think is just as powerful.

In any event, presenting evidence allows the reader to decide, and to rationalize in their mind why this has happened, and to move on from this event. If, in 5 weeks time, you have some kind of agreement that replicates the One List, I will concede my interpretation was wrong (but it isn’t...).

John
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Re: Duty of Fair Representation: LOU (One List)

#6 Post by China_CAAC_Exam » Tue Dec 04, 2018 4:58 pm

And although the ALPA Board of Directors approved the seniority policy in a document "from the 50's" as you put it, it has been reaffirmed as the seniority policy several times in that period, and still factors as THE policy today.

Speaking of old documents, the Americans are pretty protective of their Constitution, and obey its laws and amendments, and it dates from the 1770's. Age doesn't seem to imply obsolescence...
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Re: Duty of Fair Representation: LOU (One List)

#7 Post by BE20 Driver » Tue Dec 04, 2018 9:05 pm

John - I just don't get what your end game is here. Those of us who launched Encore and did all the heavy lifting for a few years got screwed by the company many times over. Now we have you doing all the heavy lifting to either purposely throw some of us under the bus or aid and abet those that do. Is that how you want to be remembered years from now? The guy who wouldn't be affected by this one way or another but still stabbed his fellow pilots in the back?

All of your ranting isn't going to get rid of ALPA, nor is it going to get rid of the former Encore employees. I just don't understand why it is that you display such hate and contempt for the pilots you have been working with for the last 5-6 years that you can't just wish them well and move on. All of us pilots are just different leaves on the same tree. Actively working to spread pesticide on the leaves you don't like still poisons the rest of the tree.
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Re: Duty of Fair Representation: LOU (One List)

#8 Post by SPR » Tue Dec 04, 2018 9:22 pm

cloak wrote:
Tue Dec 04, 2018 4:17 pm
Well, he's saying that based on ALPA's own constitution such deal is not possible or subject to litigation; and barring a surreptitious voodoo deal, he may have a case!
Of course you think he makes a good argument; you seem to be one of the OTS pilots who would directly benefit from the end of the One List, so you're going to follow his lunatic rantings wherever they lead. Maybe you should think a little bigger than your own wallet and consider what will happen when you personally antagonize hundreds of your coworkers for your own short-sighted gains. If you file a grievance with the CIRB, even if you lose, which I think you would, you'll make enemies of almost everyone you'll fly with until the end of your career.
As for Mr Multiple Personalities, his arguments, if correct, would impact almost every ALPA airline in Canada. If upgrades are based purely on seniority, then every direct-entry captain at Bearskin, Georgian, and Encore will be demoted. The agreement Jazz has with Bearskin will be null and void. More than anything, though, is that Whatever-Name-He's-Going-By-Today keeps referencing the Merger Policy. This is very strange, seeing as WestJet and Encore haven't merged, nor was the WPDL formed by combining two lists; rather, it was simply an addition of Encore pilots to the bottom of the existing WestJet list. I don't think this situation has ever happened before in Canada, which would make it unprecedented, so when he cites precedent it's all legally irrelevant.
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Re: Duty of Fair Representation: LOU (One List)

#9 Post by China_CAAC_Exam » Wed Dec 05, 2018 6:42 am

Any "heavy lifting" that I have done over the last two years on researching the One List and ALPA has not materially influenced the final result of this situation. The heavy lifting was done by the President of ALPA, the Vice-President (Administration-Secretary), the members of the WJ Organizing Committee, and everyone who minimized or disregarded my arguments in the organizing campaign. And, it must be said, by the pilots of Encore who did not sufficiently, or at all, research the issue prior to the certification vote at WJ. They could have made a difference had they done so and communicated their findings to their colleagues at WJ. Remember, the vote was something like 54% (I may be off) in favour of ALPA.

To reiterate what I have said before on this forum, it is none of my business what anyone (besides my employer) thinks of me. If Encore pilots choose to hold me responsible for their misfortune, well, so be it. Resentment is a poison you feed yourself.

The WPDL was created by well-meaning people and was supported by well-meaning people. Very, very few, if anyone (I didn't) foresee a certification with ALPA coming so soon, if ever. And ALPA is the problem. Had WJ pilots certified with any other union, there would be no problem in recreating the One List in a CBA.

Now on to the reasons why a DFR is a likely event, and why an Unfair Labour Practice complaint against ALPA regarding a violation of the Duty of Fair Representation could be filed as early as the moment that Kaplan issues his Award. (edit: I changed the lastseven words in this sentence from the original post.)
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Re: Duty of Fair Representation: LOU (One List)

#10 Post by China_CAAC_Exam » Wed Dec 05, 2018 7:11 am

Please leave morality views, whatever they are, at the door. This is not about the moral choice an individual might take in order to protect his "rights". Under the WJPA and the non-certified environment within we all worked, no one had a "right" to a chance at an upgrade or a base or an aircraft type. The employer "granted" us opportunities to those positions through an accepted bid process. But (some members of the WJPA maintain ther agreement was defensible in court, I'm agnostic as to that issue), make no mistake, there were no "rights" involved.

That changed with certification.

Given that the OTS pilots have a secure place on the WestJet Pilot Seniority List (WPSL), a list that is ordered by Date of Hire at WJ, they have, as a result, a legal entitlement to such negotiated terms as will be contained in the soon to be released CBA. Primarily, and for the purposes of the discussion, those rights will include the right to bid on vacant positions by their seniority position on the WPSL.

So whose job is it to protect those rights?

Of course the answer is ALPA. Absent a "legitimate union purpose", ALPA must defend those rights with an absence of discrimination, abritrariness, or bad faith.

If we assume, that the Encore flow-through pilots are ordered on the WPSL as well, by ther WJ DOH, then what "right" do they have (not morality) to a position on the list higher than their seniority dictates, or what right do they have to increased privileges with respect to their seniority as compared to the rest of the bargaining unit members?

I maintain that any decision to cede extra privileges to the former Encore pilots would no be discrimination against OTS pilots, nor would, I think, it be bad faith treatment of these pilots.

No, I think it would be arbitrary treatment of the rights of the OTS pilots. The OTS pilots have a statutory right to be treated fairly by their union. See Section 37 Canada Labour Code.

Here is an American perspective on arbitrariness from the second case of Addington v. USAPA, the USAir/America West merger:
The negotiation of seniority lists presents a particularly difficult application of the union’s duty of fair representation. For the reasons we have previously discussed, the creation of a seniority list is inevitably an exercise in winners and losers. We must respect the “wide latitude” that unions need for “the effective performance of their bargaining responsibilities.” O’Neill, 499 U.S. at 78. Accordingly, obtaining employee benefits or minimizing risks to employees constitutes a legitimate purpose for making seniority-related concessions. See Baker v. Newspaper & Graphic Commc’ns Union, 628 F.2d 156, 166 (D.C. Cir. 1980) (concluding that a union did not breach its duty of fair representation where it capitulated to the employer’s proposed seniority regime, necessary to keep the company afloat, concluding that “the loss of work for some . . . [was] preferable to job losses for all”). Achieving stability and strengthening organized labor also constitute legitimate union purposes. See Rakestraw, 981 F.2d at 1534–35 (finding no breach where a union drafted the seniority roster to effectively punish pilots who had “crossed the picket lines” and thereby “strengthen the hand of organized labor in future conflicts with management”).

So, what constitutes such “arbitrary conduct” on the part of the union? For starters, we have made clear that the union’s duty to avoid “invidious” discrimination extends beyond such factors as “race or other constitutionally protected categories,” explaining that “these grounds are too restrictive.” Simo v. Union of Needletrades, 322 F.3d 602, 618–19 (9th Cir. 2003). In the context of negotiating a seniority list, the prohibition on arbitrariness means that “a union may not juggle the seniority roster for no reason other than to advance one group of employees over another.” Rakestraw, 981 F.2d at 1535; see Ramey v. Dist. 141, 378 F.3d 269, 277 (2d Cir. 2004) (upholding a finding of violation of the duty of fair representation where union stripped seniority from pilots who favored a different union).

We have thus found that a union breached its duty of fair representation when it failed to follow its own policies in merging the seniority lists of two groups of airline pilots, the effect of which was to punish the pilots who were not unionized prior to the merger. Bernard, 873 F.2d at 217. Other courts have found a breach where the union assigned seniority based on longevity in the union, Teamsters Local Union No. 42 v. NLRB, 825 F.2d 608, 613 (1st Cir. 1987); favored union members over non-union members of the bargaining unit, Jones, 495 F.2d at 797; made seniority promises to advance the career of union officials, Barton Brands, Ltd. v. NLRB, 529 F.2d 793, 799 (7th Cir. 1976); or made seniority promises to one group of employees to secure election, Truck Drivers, Local Union 568 v. NLRB, 379 F.2d 137, 143 (D.C. Cir. 1967). In short, a union must act with some legitimate union purpose that “rationally promote[s] the aggregate welfare of employees in the bargaining unit.” Rakestraw, 981 F.2d at 1535 (emphasis added). Decisions benefitting a majority of the group may not be made merely because the “losers ha[d] too few votes to affect the outcome of an intra-union election.” Id. at 1530.
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Re: Duty of Fair Representation: LOU (One List)

#11 Post by cloak » Wed Dec 05, 2018 8:33 am

SPR wrote:
Tue Dec 04, 2018 9:22 pm
cloak wrote:
Tue Dec 04, 2018 4:17 pm
Well, he's saying that based on ALPA's own constitution such deal is not possible or subject to litigation; and barring a surreptitious voodoo deal, he may have a case!
Of course you think he makes a good argument; you seem to be one of the OTS pilots who would directly benefit from the end of the One List, so you're going to follow his lunatic rantings wherever they lead. Maybe you should think a little bigger than your own wallet and consider what will happen when you personally antagonize hundreds of your coworkers for your own short-sighted gains. If you file a grievance with the CIRB, even if you lose, which I think you would, you'll make enemies of almost everyone you'll fly with until the end of your career.
As for Mr Multiple Personalities, his arguments, if correct, would impact almost every ALPA airline in Canada. If upgrades are based purely on seniority, then every direct-entry captain at Bearskin, Georgian, and Encore will be demoted. The agreement Jazz has with Bearskin will be null and void. More than anything, though, is that Whatever-Name-He's-Going-By-Today keeps referencing the Merger Policy. This is very strange, seeing as WestJet and Encore haven't merged, nor was the WPDL formed by combining two lists; rather, it was simply an addition of Encore pilots to the bottom of the existing WestJet list. I don't think this situation has ever happened before in Canada, which would make it unprecedented, so when he cites precedent it's all legally irrelevant.
It may be a natural emotional response for some when they can't argue against the points, or perhaps a strategy for others, to attack the messenger and discredit whatever does not coincide with their wishes as having come from a baby-eating OTS pilot, or an unhinged lunatic WestJet pilot, or a maniac outsider who should mind his own business, but that approach only weakens the position of the presenter and makes it challenging to engage in a free and meaningful discussion. It's best to stick to facts and leave connotative commentary and character assassination aside.
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Re: Duty of Fair Representation: LOU (One List)

#12 Post by goingnowherefast » Wed Dec 05, 2018 8:42 am

There was a while where Jazz offered artificial start dates to those participating in a flow program. Some ended up with 6 months seniority on the first day. I believe they were all from other ALPA companies, Bearskin, Wasaya.
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Re: Duty of Fair Representation: LOU (One List)

#13 Post by cloak » Wed Dec 05, 2018 8:45 am

China_CAAC_Exam wrote:
Tue Dec 04, 2018 8:48 am
... and meanwhile on the other hand, it is now allegedly attempting to remove those negotiated rights from some of those bargaining unit members (OTS pilots).
What gave you that impression?
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Re: Duty of Fair Representation: LOU (One List)

#14 Post by aerobod » Wed Dec 05, 2018 9:38 am

Although they don't seem to have an annual report more recent than 2015-2016, it looks as though the CIRB does get quite a few DFR complaints:
Image
Source report: http://www.cirb-ccri.gc.ca/eic/site/047 ... 00771.html
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Re: Duty of Fair Representation: LOU (One List)

#15 Post by Hangry » Wed Dec 05, 2018 10:03 am

SPR wrote:
Tue Dec 04, 2018 9:22 pm
cloak wrote:
Tue Dec 04, 2018 4:17 pm
Well, he's saying that based on ALPA's own constitution such deal is not possible or subject to litigation; and barring a surreptitious voodoo deal, he may have a case!
Of course you think he makes a good argument; you seem to be one of the OTS pilots who would directly benefit from the end of the One List, so you're going to follow his lunatic rantings wherever they lead. Maybe you should think a little bigger than your own wallet and consider what will happen when you personally antagonize hundreds of your coworkers for your own short-sighted gains. If you file a grievance with the CIRB, even if you lose, which I think you would, you'll make enemies of almost everyone you'll fly with until the end of your career.
As for Mr Multiple Personalities, his arguments, if correct, would impact almost every ALPA airline in Canada. If upgrades are based purely on seniority, then every direct-entry captain at Bearskin, Georgian, and Encore will be demoted. The agreement Jazz has with Bearskin will be null and void. More than anything, though, is that Whatever-Name-He's-Going-By-Today keeps referencing the Merger Policy. This is very strange, seeing as WestJet and Encore haven't merged, nor was the WPDL formed by combining two lists; rather, it was simply an addition of Encore pilots to the bottom of the existing WestJet list. I don't think this situation has ever happened before in Canada, which would make it unprecedented, so when he cites precedent it's all legally irrelevant.
Why would an WJ pilot (OTS) care what an Encore pilot thinks of the way he/she votes?

The brackets are there for no reason really. Encore pilots are not WJ pilots. While I think it would be pretty crappy to change the deal after the fact, it doesn’t change the fact that Encore pilots never were, and are not, WJ pilots.

DOH is king.
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Re: Duty of Fair Representation: LOU (One List)

#16 Post by SPR » Wed Dec 05, 2018 3:45 pm

cloak wrote:
Wed Dec 05, 2018 8:33 am
It may be a natural emotional response for some when they can't argue against the points, or perhaps a strategy for others, to attack the messenger and discredit whatever does not coincide with their wishes as having come from a baby-eating OTS pilot, or an unhinged lunatic WestJet pilot, or a maniac outsider who should mind his own business, but that approach only weakens the position of the presenter and makes it challenging to engage in a free and meaningful discussion. It's best to stick to facts and leave connotative commentary and character assassination aside.
I did, actually, make arguments in my second paragraph. And yet, ironically, you didn't address any of the points that I made.
Is it possible that all of the ALPA reps at Jazz, Bearskin, Wasaya, WestJet, and Encore are better versed on the nuances of ALPA practices than an unhinged union-hater? Dare I say that they might even have direct communications with ALPA leadership and legal representation? No, it must be that they're just completely ignorant of their own rules, and only the great John Swallows has been able to see the light through the gloom!
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Re: Duty of Fair Representation: LOU (One List)

#17 Post by SPR » Wed Dec 05, 2018 3:48 pm

Hangry wrote:
Wed Dec 05, 2018 10:03 am
Why would an WJ pilot (OTS) care what an Encore pilot thinks of the way he/she votes?

The brackets are there for no reason really. Encore pilots are not WJ pilots. While I think it would be pretty crappy to change the deal after the fact, it doesn’t change the fact that Encore pilots never were, and are not, WJ pilots.

DOH is king.
You realize that there are hundreds of former Encore pilots at WestJet who would lose seniority, and therefore be passed over for upgrades, if the OTS pilots have their way, right? And that there are hundreds more waiting to flow? That can't really be that difficult of a concept to comprehend, can it?
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Re: Duty of Fair Representation: LOU (One List)

#18 Post by Hangry » Wed Dec 05, 2018 4:10 pm

SPR wrote:
Wed Dec 05, 2018 3:48 pm
Hangry wrote:
Wed Dec 05, 2018 10:03 am
Why would an WJ pilot (OTS) care what an Encore pilot thinks of the way he/she votes?

The brackets are there for no reason really. Encore pilots are not WJ pilots. While I think it would be pretty crappy to change the deal after the fact, it doesn’t change the fact that Encore pilots never were, and are not, WJ pilots.

DOH is king.
You realize that there are hundreds of former Encore pilots at WestJet who would lose seniority, and therefore be passed over for upgrades, if the OTS pilots have their way, right? And that there are hundreds more waiting to flow? That can't really be that difficult of a concept to comprehend, can it?
I realize that. Encore pilots will have their seniority begin to accrue when they are on property as a WJ pilot. DOH

Real easy to comprehend. Things will be as they should have been.
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Re: Duty of Fair Representation: LOU (One List)

#19 Post by China_CAAC_Exam » Wed Dec 05, 2018 9:02 pm

I see similarities between the circumstances in Woodley, and the contents of the November 2, 2018 Update from the WJ MEC. Where Captain Woodley's concern was the events that took place between MEC's and the formulation of the "Quebec Accord", the MEC Update concerns itself, in part, with a meeting between MEC's (WJ and WJE) in Herndon and the formulation of a proposed LOU (the "Herndon Pact").

After studying Woodley for a bit, I believe that the time limit for filing a DFR compaint against ALPA will end 90 days after November 2nd. It is possible the clock started ticking with the publishing of Capt TP's promotional literature for his campaign to become the Canada Board President, wherein he mentions his efforts to "unite" the WJE pilots with the WJ pilots. The Board, in Woodley, commented that when Captain Woodley first received notification that the union had formulated the agreement leading to the events that later hurt his seniority, was when the clock started for the time limit on his filing a DFR complaint.

Given that the former WJ MEC's brother worked for WJE, and will be directly impacted by a failure to reproduce the WPDL, I think that there is a legitimate concern of a conflict of interest. Additionally, with his recall by the Association, there is obviously concern with his leadership, and this must bring into question his decision to proceed with submitting the LOU to WJ for its consideration. As well, crafting the LOU could be seen as favouritism or as a reward to the WJE pilot group for their certifying with ALPA. ALPA has a duty to represent ALL bargaining unit members fairly, and the fact that a majority will support injuring the seniority of a minority group is not a legitimate union purpose.

I realize the strong emotions regarding the one list. Seniority is a zero sum game: when one person gains, another loses. For the MEC to proceed with a LOU solely on the basis of a survey whose results have not been made public seems less than appropriate. Have the concerns of the OTS pilots been adequately addressed? Are their seniority interests being adequately protected, or is the assumption merely that the majority is in favour of negatively affecting the OTS pilots' seniority? Are the OTS pilots too afraid to speak up for fear of ostracization, as was done to the Swoop OTS pilots?

It is precisely in these times that special care needs to be taken with regards to individual rights. I am not encouraged by the record of the ALPA MEC thus far at WJ, and I woould be unwilling to entrust to them the decision to properly deal with One List issues if it were my seniority in play.

One way for an unbiased body to adjudicate the issue would be for the filing of a DFR complaint by an OTS pilot(s). I do not think it a trivial issue. If there are rights to be protected, then perhaps the issue should be considered by the CIRB. The Woodley case outlines the steps necessary to do so. Obviously Captain Woodley was unaware of the steps he needed to take and that later affected him greatly, in a negative way; that should not be the case here at WJ.

From Woodley:


[28] The first preliminary issue before the Board deals with the many dates put forward by the complainants as the operative one that begins the so-called “ticking of the 90-day clock” for filing a complaint. To be timely, the circumstances giving rise to this complaint must have come to the complainants’ attention on or after March 13, 1997, unless the Board decides to extend the time limit pursuant to section 16(m.1) of the Code.

[29] The complainants sought to establish timeliness by linking a series of events that ultimately suggest a continuing basis for their complaint, the first of which is the negotiation of the Quebec Accord. According to the documents filed with the Board by the complainants, they were advised by Captain Al Carmichael, CRA MEC Chairman, on or about November 25, 1996, about the existence of the Quebec Accord through the following email:

CALPA CONVENTION:

The CALPA Convention has now drawn to a close in YQB; there have been significant developments in a number of
concerns to our pilot group. The first was the results of the move to ALPA. After extensive debate in which your MEC was quite active, the Convention Delegates approved balloting members on the ALPA merger document, with a simple majority as the threshold for implementation. The results of the secret roll call ballot was near 90% in favour of ALPA. The deadline for returning your ballot on this issue has been delayed, though it MUST Be postmarked 02 January 1997 or earlier to be valid. I have received calls from quite a few pilots concerned that they did not get ballots on the 10% poll. If you want to exercise your democratic right to vote, you must have your correct address at CALPA HQ’s. If you have any problems, call them at 1-800-561-9576.

CAI / CRA MEETING:

The second development was a joint MEC Meeting between CAI and CRA that explored the issues surrounding scope, merger, 10%, and third-tier erosion, to name a few. An ad hoc committee was struck to study the merger item, and after in-depth discussion, an accord was reached that forms a working document on which to build an agreement. This document has been entered into without prejudice, and in the event that a final agreement is reached, you will be balloted. There will be base meetings in the near future to discuss what the agreement contains, should we be successful; at this point talks are ongoing.

NEGOTIATIONS:

Thirdly, we are standing by to negotiate with the Company during the last week of November. To say that the situation is
fluid is to understate the obvious. Your MEC will use all available means to pass the facts on to you as this week progresses, and most likely by the time you read or hear something, events will have overtaken us and the situation will change again. You MEC is counting on your support in this most critical period; please take the time to ensure that you will be able to participate in the ratification ballot. [sic]


[30] At the hearing, the complainants stated:

59. In late November, 1996, the Complainants Woodley and Morgan heard rumours that a non-binding working document had been reached by the CRA and CAI MEC’s at the November, 1996 CALPA Convention, that CRA pilots would “flow through” to the bottom of the CAI seniority list and that this document was to be used as a basis to build an agreement. They also saw a CRA newsletter dated November 25, 1996, which confirmed that an accord concerning seniority merger had been reached in the form of a working document that was said to be without prejudice and which, once final agreement had been reached, would be voted on by the CRA pilots. The Complainants were otherwise unaware of the terms of the document, nor did they obtain a copy of the Quebec Accord until July 18, 1997, when they received the Respondent Union’s response to their Complaints.

[31] Therefore, by their own admission, the complainants were informed of the existence of the Quebec Accord as early as November 1996. This fact on its own makes any complaint clearly untimely. In order to bring this part of the complaint within the confines of the 90-day requirement, the complainants have linked it to the CRA pilots’ seniority and transfer rights negotiated in the 1997 collective agreement and ultimately to the filing of grievances in March 1997.

[32] The facts presented by the complainants emphasize the importance of their disagreement with the principles of the Quebec Accord, including the decision not to proceed with a merger declaration, the integration of seniority lists and a single employer application. These events are also the foundation for that part of the complaint relating to the outcome of the collective bargaining. It follows that if at the complainants’ urging the Board is to consider the events relating to the Quebec Accord, then the very basis for the complaint is untimely.

[33] Actions or circumstances that give rise to a complaint are usually time specific. These events cannot be extended by tacking on other events without a serious explanation for doing so. The complainants must therefore clarify how the ongoing collective bargaining process extended the life of a complaint. The Board recently dealt with a similar issue and decided that the principle of the finality of litigation applies to complaints under the Code; a complainant cannot extend the 90-day time limit simply by linking a series of circumstances and thus revive a spent complaint (see BHP Diamonds Inc., Securecheck, and Klemke Mining Corporation, [2000] CIRB no. 81). Consequently, the 90-day time period starts to lapse from the time of the illegal act, not from the time when the complainants amass sufficient evidence to file the complaint.

[42] The complainants have known of the Quebec Accord since November 1996. If they had rights to exercise or had any doubts about the consequences of the Accord, they were in a position to act at that time. The absence of all material facts is not a bar to a complaint. As has been stated on many occasions, the Board’s experience with hundreds of complaints is that complainants are rarely reluctant to file a complaint based on the merest of suspicions.

[43] The Board also disagrees that an allegation of discrimination somehow transforms a complaint into a “continuing breach.” The duty of fair representation is undoubtedly a continuing one, but there is a distinction between issues that are part of the bargaining process and the rights arising from an existing collective agreement, such as from LOU 13. For instance, each time a CRA pilot is unable to enforce its provisions in a transfer over to CAIL, a grievance could be filed and ALPA might be the subject of a timely complaint under section 37 of the Code. However, the instant complaint is an entirely different situation. No complainants have grieved or complained about their inability to transfer over to CAIL, but rather they have denounced ALPA’s conduct in entering into LOU 11, 12 and 13. Whether the Board takes the view that the complainants knew of ALPA’s position just after the November 1996 convention or that the negotiation process was complete upon ratification of the collective agreement by the membership on February 13, 1997, the 90-day time limit for filing complaints expired at the latest on May 13, 1997. Once the 90 days have elapsed, the time limit is gone forever (see Upper Lakes Shipping Ltd. v. Mike Sheehan et al., [1979] 1 S.C.R. 902), unless it is extended pursuant to section 16(m.1) of the Code.
ALPA_MEC_Update_Nov_02_2018_p1_JPEG.jpg
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cloak
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Re: Duty of Fair Representation: LOU (One List)

#20 Post by cloak » Wed Dec 05, 2018 9:56 pm

SPR wrote:
Wed Dec 05, 2018 3:45 pm
I did, actually, make arguments in my second paragraph. And yet, ironically, you didn't address any of the points that I made.
Is it possible that all of the ALPA reps at Jazz, Bearskin, Wasaya, WestJet, and Encore are better versed on the nuances of ALPA practices than an unhinged union-hater? Dare I say that they might even have direct communications with ALPA leadership and legal representation? No, it must be that they're just completely ignorant of their own rules, and only the great John Swallows has been able to see the light through the gloom!
Jazz is hardly an example to follow. Under the watchful eyes of ALPA no less, it has lowered the standard in piloting profession at least twice in recent times, once when it underbid Skyservice on the B757 flying and drove the final nail in its coffin, all in similar pay to Dash8 flying to make matters even worse, and second when it introduced B scale. And now to start at Jazz not only to be subject to second class status but also discover there are hundreds of pilots ahead that are not even on the property and do not contribute to the same airline? This is hardly worthy of emulation.

It could be argued that barring a true national system where all pilots get credit for service in airline operations and are members of a national organization, any sort of an "agreement" to allow members of other airlines on the seniority list puts current members of the said airline at a disadvantage. Furthermore, to use a simple "rule of majority" to attempt to pass such agreement is a failure of the representing union to discharge its "fiduciary responsibility" to every of its members to protect them and to do them no harm.
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China_CAAC_Exam
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Re: Duty of Fair Representation: LOU (One List)

#21 Post by China_CAAC_Exam » Thu Dec 06, 2018 6:12 am

SPR, it pains me to have respond to the points that you bring up in relation to direct entry Captains, as I should think it would be obvious as to why companies whose pilots are represented by ALPA are permitted to hire DEC’s.

What is obvious, is that those companies had no qualified pilots capable of assuming the command position. I suppose the company could reduce operations and wait until their FO’s gained enough experience to (hopefully) upgrade, but what reasonable people have done instead is to hire directly from the street. This happened when Skyservice took on a large number of the ex-C3 pilots when that company imploded. The Skyservice FO’s were senior to these new hires but not ready for upgrade.

Make sense?
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Re: Duty of Fair Representation: LOU (One List)

#22 Post by China_CAAC_Exam » Thu Dec 06, 2018 6:35 am

A few comments before I start my work day.

First of all, I sleep well at night and have zero anxiety during the day. Listening to and learning from Dr Jordan Peterson I have the awareness that chaos or evil or fascism flourishes when people don’t speak up. Even when it’s uncomfortable. It is uncomfortable to speak up publicly about the problems with the One List under ALPA. It is less uncomfortable to speak up about the rights of OTS pilots hired since Encore began operations but it is still not easy. But I believe it has to be done.

Friends will be made and friends will be lost, but if I am so worried about public opinion that I can’t speak up for the truth and for those concerned with censure by fellow pilots, well, the 52 years I have spent creating myself to this point were a waste. If I don’t speak my mind now when it matters, than I think I would have no problem being the guard at Treblinka or the neighbour of the Jewish shop keeper who said nothing in 1932 when the black boots arrived. I know it’s a tad dramatic, but situation we find ourselves in, while not of my creation, demands that people speak up.

If you are an OTS pilot hired since May 2014 you need to contact your MEC and the President of ALPA in Herndon and the Canada Board President to advise them that you have concerns that your seniority rights may be in play due to the MEC Update of Nov 2, 2018.

Normally the Unfair Labour Practice complaint regarding a Duty of Fair Respresentation would require waiting until a CBA is ratified by the membership, but the current situation is unique. The Arbitrator is ruling in several key areas in contention, but the remaining agreed upon sections are complete. There will be no ratification, so there already is a collectively bargained agreement in place for the key area of Seniority, Section 22. It is on this basis, and the acknowledged agreement between the tw MEC’s that I believe, not being a lawyer, the time and conditions precedent are ripe (no more than 55 days remaining to do so) for a DFR complaint. Doing so will ensure that rights are protected and no laws are broken.

If the contacted parties fail to address the concerns raised, then the CIRB should be contacted to start the DFR claim process.
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Re: Duty of Fair Representation: LOU (One List)

#23 Post by aerobod » Thu Dec 06, 2018 8:48 am

In terms of DFR resources provided by the CIRB, here is the page with links to the forms: http://www.cirb-ccri.gc.ca/eic/site/047 ... 00094.html
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China_CAAC_Exam
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Re: Duty of Fair Representation: LOU (One List)

#24 Post by China_CAAC_Exam » Thu Dec 06, 2018 9:25 am

The sooner a DFR complaint could be made to the Board, tge sooner the case could be decided. Who knows, it could even factor into Kaplan’s process. In any event, clearing up the issues involved would be better for all parties, rather than letting the matter malinger.

If anyone can submit their claim tomorrow, that might get the issue resolved before the end of the month. I don’t think the Board would need an oral hearing, as the matter is not terribly difficult to understand and adjudicate.
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Re: Duty of Fair Representation: LOU (One List)

#25 Post by MrMerth » Thu Dec 06, 2018 12:53 pm

So let me get this straight. You were ok with the way the list was constructed but now that ALPA is OUR representation. You’re trying to throw Encore under the bus because you didn’t get your way. That’s how it comes across. We get it! You’re bitter that ALPA is here! To stay might I add. How about you stop posting and when the results come out we’ll all have a laugh at how wrong you were.
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