China_CAAC's Merged Threads

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The Tenth Man
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

My hat is off to ALPA negotiatiors. You have accomplished what I thought not possible.

I suppose at some point I shall issue a complete mea culpa, once I look at how exactly wrong I was WRT the One List, and the arguments made in that area.

To the Encore pilots and flowthroughs congratulations, I really didn’t see how this could be achieved.
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Re: China_CAAC's Merged Threads

Post by Hangry »

I wonder what you will obsess on to the point of lunacy now?
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Re: China_CAAC's Merged Threads

Post by lostaviator »

Your overtime is safe! You may now return to full time wing suit designing!
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Re: China_CAAC's Merged Threads

Post by apathetic »

now maybe Chinese cock, NCP, Alpa Male, WeedPro....can shut up. People tried to tell you. You wouldn't listen. I'm happy I don't need to read that crap anymore.
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Re: China_CAAC's Merged Threads

Post by skypirate88 »

Anyone care to enlighten those of us that are on the outside looking in?
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Re: China_CAAC's Merged Threads

Post by lostaviator »

skypirate88 wrote: Fri Dec 21, 2018 4:25 pm Anyone care to enlighten those of us that are on the outside looking in?
One word: bad
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Re: SWOOP OTS Captains punted from left seat...

Post by cloak »

Rezy wrote: Tue Nov 27, 2018 9:26 pm
cloak wrote: Mon Nov 26, 2018 1:46 pm It's really pathetic and immature how some keep going on about this. Theirs is the example of a team that is so focused on who they perceive as a "Maradona" (few direct-hire pilots) that they have lost focus on important issues and conceded 6 or 7 goals without even turning around to notice it!!
Conceded 6 or 7 goals? How could you possibly know that? There isn’t a contract in place yet! So you are just posturing. ALPA is laser focused on the formal arbitration arguments coming up in early December and there haven’t been any concecessions.
Scope is by far the most important part of a contract and ALPA protected it for all WJ pilots.
I rest my case!!!
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

Disregard.

Merry Christmas!
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Mrbobmarly111
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Re: SWOOP OTS Captains punted from left seat...

Post by Mrbobmarly111 »

I shouldve taken that bet.... but being right in this case is not a good thing.

Merry Christmas all!
RidersRule wrote: Thu Nov 29, 2018 1:28 pm
Mrbobmarly111 wrote: Thu Nov 29, 2018 6:12 am I love Av canada its completely crazy. I bet you 50 womp womps and ig you consider that bet i also have another bet. But if you dont bet that bet ill bet you a different bet. How about i bet you that if your wrong and you lose your bet that i bet we all just go our separate ways. Unless you bet a different bet that i might agree to.

Anywayssss I have investigated what earlier claim and i concede that I was wrong. It is only an interm decision that the arbitrator decided that swoop pay is at the current rates etc etc.... that being said i have frienda who are part of ALPA negotiating committees at different companies and they say this still spells bad news for swooper poopers. Because if its already been decided by a judge through arbitration "even if only for the short term" when alpa westjet trys to ask for more. The company can say there is already a precedence that the judge sided in their favor. So the company will require alpa give somthing else up to increase the cureent pay.

Regardless its a huge goat show
I’ll take that as a no...
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

apathetic wrote: Fri Dec 21, 2018 3:58 pm now maybe Chinese cock, NCP, Alpa Male, WeedPro....can shut up. People tried to tell you. You wouldn't listen. I'm happy I don't need to read that crap anymore.
You never "needed to", you just chose to. And remember, ALPA's alleged decision to replicate the WPDL ordering in the WPSL does not void any of the legal arguments. The ALPA Board of Directors passed its resolution for a reason, ALPA kept the policy unchanged for 62 years, and the WJ MEC will be fortunate if they are not forced to defend their decision in a civil court.

Take care!

The Original WingNut
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Common Law DFR

Post by The Tenth Man »

As I have established previously, ALPA owed all WJ pilots in the bargaining unit a Common Law Duty of Fair Representation (DFR) from the time of certification (May 12, 2017) until 11:59:59 pm on Dec 31, 2018.

In researching the the matter of a non-DOH seniority list that ALPA has allegedly negotiated with WJ, in violation of the 62 year old BOD seniority policy, I have come accross a case that is helpful. The case is annotated as Nellis v. ALPA, and arose from the demise of Eastern Airlines in the early 90's. ALPA was not found guilty of violating the DFR.

The case summary is here. Essentially, ALPA was alleged to have reneged on its Fragmentation Policy, which was applicable when an airline sold off assets but remained in business, and layoffs resulted. The Fragmentation Policy directed ALPA to endeavour to find employment with other ALPA carriers for the laid off pilots, who would carry over the Eastern seniority to the new airline. As you can imagine, under the banner of "unity", the ALPA family was wholeheartedly behind the idea. Until it affected them negatively.

For our purposes here, and I encourage you to read the whole case summary, the salient facts are the courts findings regarding the requirement for the union to follow its policies, subject to its right to alter these policies using the constitutionally mandated procedure. I'll let you decide how similar these findings are to ALPA's requirement to follow its seniority policy in WJ's first ever seniority list.

I have quoted three passages below that I think explain the issue sufficiently with regard to ALPA's duty to the WJ pilots to implement DOH seniority policy here. Remember this is US law, and as well, there may be other legal principles at play that mean the OTS pilots would not be successful if they filed claim against ALPA.
Finally, this Court must assess whether ALPA's alleged refusal to fulfill its obligations under the Fragmentation Policy for the benefit of the Eastern pilots could be found to be discriminatory. "The objective of the duty of fair representation is to provide substantive and procedural safeguards for minority members of the collective bargaining unit." Jones v. Trans World Airlines, Inc., 495 F.2d 790, 798 (2nd Cir.1974); see also Beardsly v. Chicago & North Western
[815 F.Supp. 1533] Transp. Co., 850 F.2d 1255, 1266-68 (8th Cir.1988), cert. denied, 489 U.S. 1066, 109 S.Ct. 1340, 103 L.Ed.2d 810 (1989). Accordingly, "a union may not neglect the interests of a membership minority solely to advantage the membership majority." Teamsters Local Union No. 42 v. NLRB, 825 F.2d 608, 611 (1st Cir.1987).

The factual circumstances in the instant case raise the possibility that the plaintiffs were treated in a discriminatory fashion. Until it became obvious which airline faced fragmentation of its assets, pilots at all the carriers stood an equal chance of benefitting under the Fragmentation Policy. Only when it became evident that it was the Eastern pilots who were likely to benefit from the implementation of the policy, to the relative disadvantage of the pilots at the acquiring airlines, did the self interest of the acquiring airlines' pilots cause them to oppose vigorous implementation of the Policy. Thus, when Eastern began disposing of its assets to other carriers, the Eastern pilots were thrust into the position of advocating a minority interest within ALPA, as the sole group favoring forceful implementation of the Fragmentation Policy. As a minority interest group within ALPA, the Eastern pilots were entitled to protection against discrimination.

Existing precedent in this circuit and elsewhere is unclear on precisely what constitutes impermissible discrimination by a union against a minority interest within the union's membership. Obviously, a rule that always vindicates the interests of a minority would eviscerate the concept of union democracy. The entire premise of democracy is that majority interests will generally prevail over the minority. See Rakestraw, 981 F.2d 1524, at 1533. Thus, there must be some limiting principle to the concept that a union must refrain from taking actions injurious to the interests of one of its minority subgroups. See Humphrey v. Moore, 375 U.S. 335, 349, 84 S.Ct. 363, 371, 11 L.Ed.2d 370 (1964) ("we are not ready to find a breach of the collective bargaining agent's duty of fair representation in taking a good faith position contrary to that of some individuals whom it represents nor in supporting the position of one group of employees against that of another").

At least one influential decision has implied that discrimination against a minority is impermissible, only when it is either arbitrary (i.e. "not based on some rational consideration") or in bad faith. See Jones, 495 F.2d at 798. If this formulation were adopted here, plaintiffs would have no colorable claim of impermissible discrimination because, as shown above, defendants' actions were neither arbitrary nor in bad faith. This result, while not without superficial appeal, would be incorrect, as it would render the term "discriminatory" redundant and meaningless. The Court cannot accept the premise that the "arbitrary, discriminatory, or in bad faith" standard enunciated by the Supreme Court in 1967, Vaca, 386 U.S. at 190, 87 S.Ct. at 916, and since cited by innumerable courts as a tripartite test, is actually a bipartite "arbitrary or in bad faith" standard. Rather, a fairer reading of the Vaca language dictates that certain actions by a union may constitute impermissible discrimination without involving arbitrary or bad faith conduct.

No reported decision has fully come to grips with the competing concerns implicated in protecting the rights of minorities within a union. While the test for impermissible discrimination must be broader than merely arbitrary or bad faith conduct, it cannot be so broad that it unduly disrupts the functioning of democratic decision-making within the union. With these competing concerns in mind, this Court adopts the following proposition: while a union is free to establish its internal policies on the basis of majority rule, the union is not free to ignore properly enacted and promulgated policies whenever such a course is convenient or beneficial to the majority of the union's membership. In other words, a union is bound to follow its official policies unless and until they are amended by means approved under the union's constitution.

As applied to the facts of the present case, the Court holds that while ALPA was free to take any position it desired on the lateral integration of pilots in the event of carrier fragmentation, it could not, even at the behest of the majority of its membership, disregard its policy on that issue once the policy was established and a subgroup of the ALPA membership stood ready to benefit from it. If, as plaintiffs allege, ALPA failed to implement the Fragmentation Policy, as promulgated in ALPA's official Merger Policies, that failure would constitute impermissible discrimination against the plaintiffs in violation of ALPA's duty of fair representation.
As explained above, defendants' actions would only be a breach of the duty of fair representation if defendants violated the express terms of the duly-enacted Fragmentation Policy. After full consideration of the matter, and taking the evidence in the light most favorable to the plaintiffs, the Court ultimately concludes that no reasonable fact-finder could find that ALPA violated the terms of the Policy.

There are two provisions in the version of the Fragmentation Policy applicable to the 1989 transactions that set forth ALPA's obligations to the pilots of a fragmented airline. First, the Policy states, "ALPA shall take all appropriate actions necessary to protect the affected pilots.... The objective of these actions shall be to produce the desired crew member protection...." Subsequently, the Policy states, "ALPA must take all steps to establish ... [t]he right of an appropriate number of pilots from the donor carrier to become employees of the carrier acquiring the operations or route."

Plainly, the first provision can be interpreted as a requirement that ALPA take some action to obtain seniority integration for the pilots of a fragmented carrier. ALPA's obligation under this provision, however, is expressly limited to "all appropriate actions." Similarly, ALPA's goal under this provision is not necessarily full seniority integration, but rather "the desired crew member protection." Without question, the policy was written in such a fashion as to preserve a degree of flexibility for ALPA in determining what constitutes "appropriate" action and the "desired" crew member protection.

Anticipating that this Court would be forced to rule on whether ALPA had, in fact, taken "appropriate" actions on behalf of the plaintiffs, the parties have devoted significant argument to the proper level of deference courts owe to a union's interpretation of its own instruments of governance. The Fourth Circuit, it appears, has not spoken definitively on this issue, while other federal courts have developed differing formulations to express the deference due in this situation.12 It is unnecessary, however, to try to anticipate how the Fourth Circuit would articulate the standard of deference generally owed to a union in this context. In this case, the language used to express the union's policy explicitly reserves for the union a certain degree of discretion in implementing the policy. When reviewing a union's decision under a policy that expressly vests such discretion in the union leadership, this court must plainly accord the highest degree of deference to the union's decision. See, e.g. Local No. 48, 920 F.2d 1047, 1051 ("Courts have neither a monopoly on fairness nor a sufficient expertise in the administration of labor organizations to warrant pervasive judicial intervention in union affairs."). Review on any lesser standard would cause this Court to run the risk of attempting "to substitute its own view ... for that reached by the union." O'Neill, 499 U.S. 65, 111 S.Ct. 1127. Accordingly, the standard this Court will employ in reviewing ALPA's implementation of the Fragmentation Policy is whether ALPA's decision with respect to the "appropriate actions" to take on plaintiffs' behalf was "patently unreasonable." Local No. 48, 920 F.2d at 1052.

ALPA's determination of what constituted an "appropriate" response to the 1989 transactions was not "patently unreasonable." In fact, ALPA took a number of steps beneficial to the interests of the Eastern pilots. First, prior to the Bankruptcy Court's approval of the asset transfers, ALPA objected to the transfers because they did not include commitments by the acquiring carriers to hire Eastern pilots with lateral seniority. See Copeland Dep. at 300. Second, the ALPA Executive Committee passed resolutions notifying all concerned parties, including management and pilots at the acquiring carriers, that ALPA considered the Fragmentation Policy applicable to the transfer of Eastern's assets to Pan Am and Midway. With respect to Pan Am, where management initially showed some willingness to hire Eastern pilots with lateral seniority, the Executive Committee authorized appointment of a Neutral Facilitator to "assist in achieving an expedited, fair and equitable" seniority integration plan. In connection with the Midway transaction, Midway MEC Chairman Mugerditchian met with Midway management to represent that he had the support of the Midway pilots for hiring Eastern pilots on terms that included lateral seniority integration.

Because neither Pan Am nor Midway ultimately hired Eastern pilots with any form of pre-hire seniority, plaintiffs argue that ALPA did not negotiate vigorously enough on their behalf, and accordingly that ALPA violated its obligations under the Fragmentation Policy. Plaintiffs contend that ALPA could easily have put "teeth" in its negotiating stance by causing its members to undertake collective action, such as refusal to fly the newly acquired aircraft, work slowdowns, or work stoppage, unless the acquiring carriers agreed to hire Eastern pilots with lateral seniority. The Court does not believe, in light of ALPA's conflicting representational duties, that the decision not to undertake such measures was "patently unreasonable." While such actions may have been permissible means of forwarding ALPA's aims, they were not required by the terms of the Fragmentation Policy. Had the ALPA membership desired that ALPA be forced to take specific steps to force airline management to accede to demands for seniority integration, the Fragmentation Policy could have been written to detail those specific steps. That was not done. Instead, the Policy plainly vests the ALPA leadership with the discretion to determine what actions are "appropriate" when seeking to achieve commitments for seniority integration.

Likewise, plaintiffs cannot avail themselves of the second provision of the Fragmentation Policy setting forth ALPA's obligations to the pilots of a fragmented airline. That provision states that ALPA must take all steps to establish the right of an appropriate number of pilots from the fragmented airline to become employees of the acquiring airlines. Significantly, however, the provision makes no mention of whether such employment must be coupled with seniority rights. There is no dispute that ALPA formulated and implemented a program for Eastern pilots throughout the period of 1989-91 in which those pilots would receive preferential consideration [815 F.Supp. 1540] by other carriers as "new hires." While the actual terms of the program are not in the record, there has been no allegation from the plaintiffs that the program was inadequate in meeting its goal. Rather, plaintiffs challenge the sufficiency of the goal of the program, contending that the Fragmentation Policy required ALPA to negotiate for jobs with lateral seniority for the Eastern pilots, not for "new hire" positions. By the plain language of the provision in question, however, ALPA met its obligation to establish the right of the plaintiffs "to become employees of the [acquiring] carrier[s]." As a result, the Court finds no evidence of discriminatory implementation of the Fragmentation Policy with respect to the 1989 transactions.

As outlined above, by the time of the 1991 transactions, ALPA had reinterpreted and amended the Fragmentation Policy.14 Pursuant to the December 1989 interpretation, ALPA was required to request the "carrier management(s) involved for assurances the pilots will be allowed transfer of employment as determined under ALPA Merger Policy." If ALPA did not receive reasonable assurances, it was directed to implement the Fragmentation Policy through existing contractual provisions and to consider use of Section 6 negotiations. Plaintiffs do not dispute that all of these actions were undertaken in connection with the 1991 transactions, in technical compliance with the terms of the Fragmentation Policy. Plaintiffs contend, however, that the duty of fair representation obligated ALPA to take further action on their behalf under the authority conferred by the December 1989 interpretation to the effect that the "President or Executive Committee may recommend further action as appropriate to be taken to implement Merger Policy. ..."

This argument fails; in this respect the Policy is permissive, not mandatory. Moreover, as with the 1989 version of the Fragmentation Policy, plaintiffs are placed in the position of challenging ALPA's determination of what was "appropriate" action, when the Policy clearly vests discretion in the Union leadership to define what actions are "appropriate." This Court cannot substitute its judgment of what actions were "appropriate" for that of the Union. See O'Neill, 499 U.S. at ___, 111 S.Ct. at 1127. As long as the determination is not "patently unreasonable," it is for the Union leadership, not this court, to decide what actions are "appropriate" means of implementing ALPA policy. In light of ALPA's conflicting representational duties to Eastern and non-Eastern pilots, it was certainly not "patently unreasonable" for ALPA to decide that strict compliance with the steps outlined by the Fragmentation Policy, with no further action recommended by the President or the Executive Committee, was the "appropriate" means of carrying out its obligations under the Policy.

In sum, ALPA complied with the literal terms of its Fragmentation Policy with respect to every transaction challenged by the plaintiffs. It is true that ALPA met its obligations with significantly less enthusiasm or resolve than plaintiffs expected would be the case. Nevertheless, minorities within a union must expect that the union leadership will frequently make decisions adverse to their interests, if those interests are in conflict with the interests of the majority. As discussed above, ALPA could only be found to have impermissibly discriminated against the plaintiffs if, in acting against the minority's interests, it violated the terms of a duly ratified union policy. Because there is no evidence that ALPA failed to comply with the literal terms of the Fragmentation Policy, summary judgment is properly entered against plaintiffs on Count I of the complaint.
10. Plaintiffs may understandably take little consolation from the Court's holding that while ALPA was not permitted to ignore the Fragmentation Policy to plaintiffs' detriment, ALPA was free to alter the Policy in such a way as potentially to deprive plaintiffs of the Policy's benefits. The fact remains, however, that it is simply not discriminatory for a union to alter its policy by means of procedures in accordance with the union's constitution, which procedures presumably give all subgroups an opportunity to participate in the union decision-making process. Minorities derive protection from the fact that such modifications of policy are subject to the continuing requirement that a union avoid arbitrary or bad faith conduct. See Jones, 495 F.2d at 798 ("[a] union has broad discretion to adjust the demands of competing groups within its constituency as long as it does not act arbitrarily"). Moreover, requiring a union to adhere to its constitutional procedures for altering union policy ensures that any policy reversal will receive a certain degree of scrutiny from the union membership. Such visibility places limits on the union's ability to engage in discriminatory conduct.
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

I think the Nellis is fairly damning to ALPA's conduct with respect to the upcoming CBA, if they have done as the MEC has recently communicated, and given credit (superseniority) to pilots for service at Encore.

Before discussing the following case, I would affirm that I have been looking for evidence that the MEC discussed in some way the rights of the OTS pilots in the event that Encore service was recognized in the seniority list. I have not found any such evidence, other than a survey that apparently asked the survey taker (WJ pilots) if he/she was in favour of honouring the WPDL (One List).

Additionally, I have been looking for an indication that in return for giving pilots credit for their Encore service, the bargaining unit as a whole received sufficient benefits to offset this imposition on the seniority rankings of the OTS pilots. At this stage, without any information there isn't a reliable way to determine this. For this to be helpful to ALPA, essentially the company would have to be the one seeking to alter the seniority list to favour Encore pilots. It appears, atleast initially, that the reverse was the case: ALPA seems to be the one pursuing the issue (see proposed LOU communication), which if true, would harm a defense against a DFR violation claim.

When I first mentioned the case of Addinton v. USAPA here, a case resulting from the USAir/America West merger, I had not realized that ALPA owed a DFR under the common law to WJ pilots in the course of negotiating a first CBA. Accordingly, the time is ripe for a revisit of the principles of the case which are very relevant.

I recommend you read the entire case here.

I present six contiguous pages here, which are the most relevant summary I could isolate. The second group of three attachments (in the next post) are especially rich in direction.



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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

The following two excerpts are from a 1981 study on DFR cases before the labour boards of BC and Ontario. I bring them to your attention to illustrate that sometimes the fact that a majority could vote on a union policy could bar a claim of breach of the DFR. In the case here however, the Board found a superseniority clause was a breach of the DFR, and the fact that a majority approved the clause was not helpful to the union. As is stated, a majority might approve a contract while overlooking distasteful elements that hurt a minority of bargaining unit members.


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Re: China_CAAC's Merged Threads

Post by George Taylor »

Absolutely pathetic. You spend your time resurrecting old threads, pontificating on Christmas Day. How come you're not spending time with family and friends instead of gloating on the internet.
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Re: China_CAAC's Merged Threads

Post by Schooner69A »

"How come you're not spending time with family and friends instead of gloating on the internet."

Maybe it's because he's switched trips with other pilots so they can spend time with THEIR families?

From the sounds of it, a foreign concept to you...?
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Re: China_CAAC's Merged Threads

Post by JayVee »

Schooner69A wrote: Tue Dec 25, 2018 9:24 pm "How come you're not spending time with family and friends instead of gloating on the internet."

Maybe it's because he's switched trips with other pilots so they can spend time with THEIR families?

From the sounds of it, a foreign concept to you...?
...so Johnny Jr is at work then, posting his nonsense?
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Re: China_CAAC's Merged Threads

Post by Schooner69A »

...at work...posting...?"

If you mean being on line while in flight, the answer would be 'no'.


If you mean being on line while sitting in a nice hotel room provided by your employer, the answer would be 'probably'.


Best wishes for the holidays; you had a nice Christmas with your family?


PS We acquainted...?
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Re: China_CAAC's Merged Threads

Post by JayVee »

Schooner69, Merry Christmas and Happy New Year to you and yours!
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

Happy Boxing Day you lot!

I'm just on my way to Christmas Dinner with friends. For the fifth year in a row, I have bid Christmas off and then shift traded with someone who had young kids at home so that I ended up working Christmas. It is not our culuture to do things for other people so once a year in the holiday season I like to setp out of my comfort zone and think of others before myself.

I gain more and certainty that ALPA is headed for serious legal issues. Along with general DFR and breach of contract case law research, I am also investigating the topic of remedy available to a common law DFR judgment versus a contract breach win. My first impression is that the common law DFR judgment may be limited to damages.

Regarding the common law DFR case, it would seem difficult to calculate, but I wonder if damages begin to accumulate with the upgrade/base/equipment bid of the flowthrough pilot unjustly awarded higher seniority and end with the OTS pilot achieving the bid he should have been awarded? Would one do something like that 200 times over and over until each OTS pilot finally gets the bid he/she should have had?

If the breach of contract action were successful perhaps the remedy would include undoing the seniority list to restoring it to where it would have been absent the breach.

In any event, if any of the above two matters did proceed to court, I suggest the prayer for relief might include an injunction to prevent ALPA from futher negotiating the LOU it has proposed, until the matter of the seniority list was adjudicated.

I cannot help but think that the apparent headlong rush to get a CBA has severely harmed WJ pilots. I can find no indication that anyone in a position of authority within the MEC/LEC structure was counselling caution. I see bluster. I see arrogance. I see a one-sided view of the pilot/company relationship that tragically blinded most pilots to the risk in such a path.

Legend has it that Israel's government has a "Tenth Man" policy, which proscribes that one man in the cabinet is given the job of occupying the opposite side of any proposed decision, to criticize vigorously the perception of those in the majority, and thereby exposing fatal flaws with an aim to avoiding groupthink and bad decisions. ALPA's byline seems to be unity, and as such, it seems that it has very little room for criticism. Once again, a tragic character flaw and I think one that indicates a need for a Tenth Man.



Captain John Swallow
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