China_CAAC's Merged Threads

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Alcoholism
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Re: China_CAAC's Merged Threads

Post by Alcoholism »

George Taylor wrote: Fri Dec 28, 2018 9:50 am He totally E'fed the WJPA forum as well.
This site was effed up long before The Tin Man.
JTrain wrote: Fri Dec 28, 2018 4:14 am
.80@410 wrote: Thu Dec 27, 2018 11:45 pm I wonder if the moderators can ban him just for being a tool.

He needs help and this forum is getting overrun with his crap.
It’s not even worth reading posts anymore. Soon as he posts, people sign off.
+1.

Steve Bannon's "Flood the zone with shit" quote comes to mind.

The sad thing is, this website has the potential to be a great resource. You still do find incredible insights - but rarely in the WJ section anymore.
Wha??? This site never had potential.
.80@410 wrote: Thu Dec 27, 2018 11:45 pm I wonder if the moderators can ban him just for being a tool.

He needs help and this forum is getting overrun with his crap.
It’s not even worth reading posts anymore. Soon as he posts, people sign off.
If the mods ban him for being a tool, they'd have to ban everyone for being a tool.
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The Tenth Man
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

The Tenth Man wrote: Sat Dec 29, 2018 9:56 am ...Policies are tools of unions. Unions have Constitutions that specify compliance with these policies. ALPA has violated its Constitution as a result of violating Seniority Policy. What is the remedy and/or penalty?...
In answer to the question I posed, guidance is found in Berry v. Pulley, 2002 SCC 40, the Supreme Court of Canada's ruling in the case:
63 However, this is not to say that union members do not have some obligations inter se. By joining a union, the member agrees to follow the rules of the union, and, through the common bond of membership, union members have legal obligations to one another to comply with these rules. If there is a breach of a member’s constitutional rights, this is a breach by the union, and the union may be liable to the individual. Similarly, the disciplinary measures in the constitution can be imposed by the union on a member who contravenes the union’s rules. A failure by the union to follow these disciplinary procedures may cause it to breach its contractual obligations to the other members, giving rise to corresponding contractual remedies.


64 In addition to potential internal procedures, a failure by the union to insist on compliance with the constitution or impose disciplinary measures for its breach may allow members to initiate proceedings either at the Canada Industrial Relations Board, or the courts, depending on the nature of the complaint. Aside from actions against the union, a member who is harmed by the breach of the union’s rules by another member may, if the requisite elements are present, have an action in tort against that member.
According to the cases I have read, normally a plaintiff must exhaust all grievance procedures and/or internal union procedures to seek redress prior to seeking the help of the courts. In this case, a grievance as not an appropriate vehicle as the issue is not an employer violation of rights under the contract. Nor are any internal ALPA processes able to solve the problem of an improperly and illegally negotiated seniority list; the illegal act is complete. The damage done to seniority rankings has been effected, although the quanta of financial damages is not calculable at this time. Only with a failure to upgrade (or hold base/equipment) on the schedule envisioned if the illegal act by ALPA had not occurred (according to the MEC's communications) will the damages clock start ticking.

In the meantime, recall from the MEC Chairman position hardly seems the penalty as envisioned by ALPA's Constitution for a failure to comply with an established policy of the ALPA Board of Directors (i.e. the Seniority Policy).

Importantly, I am told with those with knowledge of the negotiations that it was indeed ALPA, through its agents, who pressed the issue of the non-DOH seniority list. As such, if this is true, then ALPA may not escape liability for a breach of the DFR owed to OTS pilots by maintaining that it exchanged harm done to some of its members in return for a greater good for the bargaining unit as a whole. In actual fact, ALPA's own actions in negotiating the non-DOH seniority list (as the MEC states is the case) not only was not done for a valid labour relations purpose, it also harmed the bargaining unit as a whole by potentially exposing the members to a negative result in the event that a merger occurs with another pilot group at some point, and the seniority rankings of the pilots hired post 2014 are penalized on the integrated seniority list with respect to the pilots of the other company.

When the seniority list is presented to the MEC/LEC's (if not already done so), and if indeed the list violates the established ALPA BOD policy, the time will then be ripe and I suggest that a duty will be incumbent upon the ALPA MEC to investigate the laying of a charge(s) against the former MEC Chairman, and to investigate the laying of charges against the members of the NC as well as the former MEC Vice-Chairman (now Canada Board President - Elect), depending on their roles in the breach of ALPA's policy.

Attached are the pages from the ALPA Constitution and Bylaws outlining the procedures for ALPA to follow in the charge and hearing process.

ALPA_Constitution_and_Bylaws_p59_disciplinary_procedure_1_jpeg.jpg
ALPA_Constitution_and_Bylaws_p59_disciplinary_procedure_1_jpeg.jpg (496.58 KiB) Viewed 5386 times

ALPA_Constitution_and_Bylaws_p60_disciplinary_procedure_2_jpeg.jpg
ALPA_Constitution_and_Bylaws_p60_disciplinary_procedure_2_jpeg.jpg (756.38 KiB) Viewed 5386 times

ALPA_Constitution_and_Bylaws_p61_disciplinary_procedure_3_jpeg.jpg
ALPA_Constitution_and_Bylaws_p61_disciplinary_procedure_3_jpeg.jpg (698.82 KiB) Viewed 5386 times
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

I spent the day trying to understand the Duty of Fair Representation, and specifically with regard to the common law duty versus the stautory duty in the Canada Labour Code. Not being a lawyer, I have found the issue confusing. I had previously written here, with good reason I thought, that the statutory duty did not apply to the negotiation stage of the collective bargaining process. This was due to the wording of Section 37, describing the representation with "respect to their rights under the collective agreement that is applicable to them".

Some Canadian cases had left the door open for the possibility of the common law duty operating under the CLC, in areas where the statutory duty was silent. For instance, Justice L'Heureux-Dubé, speaking for the Supreme Court of Canada in 1990 in Gendron said:
"...Recent amendments to the Canada Labour Code may restrict the statutory duty in such a fashion thereby arguably leaving some room for the common law duty to operate at the collective bargaining stage."
Since that time, a few decisions, including one by the Board itself, have gone against that thinking. Obviously legal issues being discussed by a pilot(s) on an aviation website offer as much value as is being paid for the posts. If I am allowed to change my mind as a result of educating myself, it would appear that the statutory duty is actually in place for the negotiation phase. This would mean that the 90 day limitation is in place, and I suggest that the limitation clock started ticking at the latest with the negotiations update from the MEC on December 21, 2018, in which they stated that the seniority list as negotiated recognized service at Encore. I can find no official communication from the MEC/NC prior to that date that suggested that the seniority list was not in conformance with ALPA DOH policy.

This means that the latest date for filing a Section 37 complaint with respect to the non-DOH seniority list would be Dec 21, 2018 + 90 days = March 21, 2019.

Here is an excerpt from the 2011 decision of Boyko et al. v. Canadian Pacific Railway et al., 2011 MBQB 25 (CanLII), which details the courts reasoning that the statutory DFR applies in the negotiation phase. Following that passage, I have added the CIRB decision in Soulière, which the Boyko decision made reference to.
(4) The Duty of Fair Representation and Collective Bargaining

[47] C.P.R. and T.C.R.C. submit that given the totality of the circumstances in this case, the plaintiffs’ primary claim centers upon T.C.R.C.’s duty of fair representation owed to its members, pursuant to section 37 of the Code. As a consequence, the claim must be heard by the Canada Industrial Relations Board, which has exclusive jurisdiction to determine and dispose of such claims.

[48] As was the case in Tomchuk, the issue in this case relates to the jurisdiction of a statutorily created labour board in relation to the renewal process of a collective agreement and whether T.C.R.C. breached its duty of fair representation in this respect.

[49] In this connection, both the Canada Industrial Relations Board and various appellate courts have held that a duty of fair representation is not restricted to the grievance and arbitration procedures contained in a collective agreement but, rather, extends to the negotiation and renewal processes of a collective agreement.

[50] In Cairns and B.L.E. (1999), 58 C.L.R.B.R. (2d) 55 (C.I.R.B.), a decision that was challenged and later upheld by a reconsideration panel and on appeal to the Federal Court of Appeal, the Canada Industrial Relations Board described the duty of fair representation in the following terms:

106. The duty of fair representation has both a procedural and a substantive component. The substantive component attaches to the effect of the union’s actions, the consequences of which could be arbitrary, discriminatory or in bad faith, even though they appear to be legitimate, for example when they result in the exclusion of a particular group from the benefits of the collective agreement. On the other hand, procedural violations include decisions made by the bargaining agent that adversely affect the interests of an individual or minority group of employees as the result of a process that is tainted by hostility, ill-will, discrimination or bad faith. Thus, it is essential that both the process and the substance of the decision be free from arbitrariness or bad faith.

107. The duty of fair representation may also be assessed by a three-pronged test. Has the union fulfilled its institutional role in representing all its members? Were employee rights within the regime of collective bargaining appropriately protected? Were critical job interests such as seniority, discipline and job security suitably considered in the collective bargaining process?

108. In the first test, the union need not achieve particular results or even achieve the outcome it set out as its goal in the first place. It should also be made clear that putting a vote to the membership is not wrong per se. What is key, however, is that the vote must be carried out in a context that is fair and free of discrimination and that proposals put to the membership are the subject of due thought and consideration of its membership, including the minority.


[51] The reconsideration panel in Cairns (Re), [2000] C.I.R.B.D. No. 24 (QL), further determined that section 37 should be given a broader interpretation by considering the particular context of the labour relations and the Code’s provisions, as follows:

[64] The reconsideration panel is, nevertheless, also of the view that the decision of the initial panel in the instant case is in keeping with the appropriate interpretation to be given to section 37 of the Code. Workplace relationships in federal industries in Canada are generally, at the present time, founded on the expectation that the rights under applicable collective agreements are of a continuing nature. The notion that seniority rights, essential working conditions, the right to employment and other rights of minority employees already in existence under one collective agreement could be arbitrarily and conclusively terminated by a collective agreement supported by a narrow majority and that any inquiry by the Board as to whether this was done fairly would be prohibited by section 37’s wording appears to this Board to be inconsistent with a reasonable interpretation of that section of the Code in the light of its statutory context as is indicated by the authorities cited above. The present Board does not feel that it can apply the present Code in a manner to so limit its jurisdiction on the basis of the text of section 37 in its statutory context. The argument on authority that the Board should so limit its jurisdiction appears therefore to the reconsideration panel to be without merit as the authorities do not appear to provide the unequivocal support contended for such a position. More importantly, it appears that no such intention to limit the scope of the Board’s inquiry is manifest in the text of the section itself.



[52] For its part, the Federal Court of Appeal in VIA Rail Canada Inc., supra concurred with both decisions and stated:

[52] Section 37 imposes upon a union a duty to fairly represent its members in the representation of the rights that they have acquired by virtue of the collective agreement that is applicable to them. This does not necessarily relieve the union from such a duty outside the term of a collective agreement. Indeed, once notice of collective bargaining has been given, the terms or conditions of employment or any right or privilege of the employees in a bargaining unit are frozen by paragraph 50(b) until the parties gain the right to strike or lockout in accordance with section 89 [as am. by S.C. 1998, c. 26, s. 39; 1999, c. 31, s. 157]. The statutory freeze would have no meaning unless those terms, conditions, rights or privileges which are its object have a source. That source is the former collective agreement. Thus, the union has a duty, during a freeze period, to fairly represent its members with respect to the terms, conditions, rights or privileges that are protected from alteration by paragraph 50(b).

[54] VIA and the BLE argue that extending the duty of fair representation to collective bargaining offends the principle of free collective bargaining. They argue that such an extension would destroy the necessary give and take of contract negotiations by restraining the union from bargaining away any existing rights. I disagree. The existence of a duty of fair representation does not preclude a union from making concessions with respect to existing rights or privileges of its members in order as part of the bargaining process. What it does do, is to require that the union, in making those concessions not act in a manner that is arbitrary, discriminatory or in bad faith during the collective bargaining process.


[53] In Soulière and Ass’n of Postal Officials of Canada (2002), 94 C.L.R.B.R. (2d) 307 (C.I.R.B.), the complainants claimed that their union was in violation of section 37 of the Code in the negotiation and renewal of a collective agreement. They maintained, in particular, that the union was naïve in agreeing to changes at the bargaining table on the sole basis of the employer’s promises and therefore that the union’s conduct was arbitrary. This resulted in a plan that was less favourable than the previous one and was therefore detrimental to the complainants. After an exhaustive review of the relevant jurisprudence, including the three decisions in Cairns and B.L.E., supra, Cairns (Re), supra, and VIA Rail Canada Inc., the Canada Industrial Relations Board concluded:

40. The principles that emerge from these citations suggest that the duty of fair representation applies not only to the grievance and arbitration procedures contained in the collective agreement, but also to the negotiation and renewal processes of the collective agreement. In both cases, the Board gives unions a long leash with regard to decisions affecting its members. In matters of grievance and arbitration, the Board is very meticulous when examining a union’s actions in relation to the complainant’s interests.


[54] In keeping with this approach in Connolly and C.E.P.U. & Local 25 (1998), 45 C.L.R.B.R. (2d) 161, the labour board had occasion to observe that, although the process of collective bargaining invariably results in some disappointment for some employees, in order to run afoul of section 37, the level of conduct must be “arbitrary, discriminatory or in bad faith”.

[55] Connolly, supra, makes it clear that while unions are given latitude to negotiate and bargain freely, and the labour board will not “second-guess” concessions that are supportable and properly arrived at, the labour board nonetheless maintains an important supervisory role in the collective bargaining process. The labour board described that role in the following terms (at p. 184):

Similarly, in adjudicating fair representation claims concerning negotiations, the Board will not attempt to assess whether the union has achieved the best or most equitable balance or whether the bargain obtained had a comparative advantage. Nor will the Board attempt to assess whether the union obtained the best possible agreement with the employer or whether the union should have bargained harder. If the process and the result of the decision are free of improper motive and evince some objective justification, the union will have fulfilled the duty of fair representation ….

[56] I am satisfied from the decisions in Cairns and B.L.E., Cairns (Re), VIA Rail Canada Inc., Soulière, supra, Connolly and Tomchuk (even though, as pointed out by counsel for the plaintiffs, the plaintiff in Tomchuk conceded that the negotiation of a collective agreement fell within the ambit of the duty of fair representation) that the duty of fair representation is intended to combat “improper motives”, “unlawful conduct”, “bad faith” or “arbitrary behaviour”. Moreover, as stated previously, this duty of fair representation not only applies to the grievance and arbitration procedures contained in a collective agreement, but also extends to the negotiation and renewal processes of a collective agreement.

[57] Put otherwise, in the context of the collective bargaining process, section 37 of the Code imposes upon the union a duty to fairly represent its members in the rights that they have acquired by virtue of the collective agreement. However, in addition, the duty extends outside the term of the collective agreement. Therefore, although the existence of the duty does not preclude a union from making concessions with respect to existing rights or privileges of its members as part of the bargaining process, the union is required, in making those concessions, not to act in a manner that is arbitrary, discriminatory or in bad faith during the collective bargaining process. Consequently, a clear effort by a union to ignore the interests of a minority in negotiations, while at the same time colluding with an employer to achieve a result favourable to a majority interest, would violate the duty of fair representation, irrespective of whether the collective agreement is ratified or not.

[58] In the end, it is abundantly clear that the allegations contained in the plaintiffs’ statement of claim involve the duty of fair representation during the collective bargaining process and, therefore, fall within the exclusive jurisdiction of the Canada Industrial Relations Board. More specifically, I am in agreement with the submission of counsel for C.P.R. that the allegations that C.P.R. and T.C.R.C. entered into a “collusive arrangement” that “resulted in a profound detriment to the employees” and that T.C.R.C. acted negligently “in entering into the aforesaid agreement” in essence mirror the concerns set out in the three‑pronged test articulated in Cairns and B.L.E. (paragraph 50 of these reasons) that may be summarized as:
(i) the failure of the union to fulfill its institutional role in representing all its members;

(ii) the failure to appropriately protect the rights of employees within the regime of collective bargaining; and

(iii) the failure to suitably consider critical job interests such as seniority, discipline and job security in the collective bargaining process.

[59] Insofar as the plaintiffs’ contention that the Court of Queen’s Bench is the only body having jurisdiction to grant rectification of a contract, the Manitoba Court of Appeal decision in Phillips v. Harrison, 2000 MBCA 150 (CanLII), 153 Man.R. (2d) 1, is instructive. There, Steel J.A. stated for the court:

[77] Finally, when reviewing factors to determine whether the court ought to defer its jurisdiction to the legislative scheme, the court should consider whether the statutory process provides effective redress for the alleged breach of duty. …

[78] For the statutory process to provide effective redress, it is not necessary that the remedy be the same as the courts might have awarded. Thus, the mere inability of a statutory tribunal or arbitrator to award a specifically requested legal remedy should not, in and of itself, give courts jurisdiction over the matter. … What must be avoided is a “real deprivation of ultimate remedy”.



[60] Similarly, in Vaughan v. Canada, 2005 SCC 11 (CanLII), [2005] 1 S.C.R. 146, the Supreme Court of Canada held that, ultimately, what is most important is legislative intent. Speaking for the majority, Binnie J. put it in the following terms:

[39] … [W]here Parliament has clearly created a comprehensive scheme for dealing with labour disputes, as it has done in this case, courts should not jeopardize the comprehensive dispute resolution process contained in the legislation by permitting routine access to the courts. …


[61] In their prayer for relief, the plaintiffs request a declaration and damages. Even if their request is viewed as something akin to rectification, then, as indicated above, the powers of the Canada Industrial Relations Board are extremely broad and include the power to “reopen negotiations” in circumstances where warranted.



The Soulière
decision:
III - Analysis

[31] The bargaining agent’s duty of fair representation is found in section 37 of the Code:

37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.

[32] That duty arises from the exclusive power conferred on a union to act as spokesperson for all employees in a bargaining unit. This power has been described in many Board decisions, and the standard test was set forth in Canadian Merchant Service Guild v. Guy Gagnon et al., [1984] 1 S.C.R. 509. In that judgement, the Supreme Court set out the following principles:

The following principles, concerning a union’s duty of representation in respect of a grievance, emerge from the case law and academic opinion consulted.

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

...

4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.



[33] The great majority of unfair labour practice complaints filed pursuant to section 97(1), alleging contravention of section 37 of the Code, submit that the union did not adequately represent the complainant during the grievance procedure, or that it refused to refer the grievance to arbitration. Rarely does the Board have to examine the duty of fair representation in collective bargaining. Before the decision in George Cairns et al., [1999] CIRB no. 35; and 2000 CLLC 220-012, was rendered, the Board was reluctant to interfere in complaints related to the outcome of collective bargaining, considering, rightly or wrongly, that its authority to review in that regard was very limited.

[34] In Gordon Parsley et al. (1986), 64 di 60; 12 CLRBR (NS) 272; and 86 CLLC 16,018 (CLRB no. 555) (pages 68; 281; and 14,153), the CLRB restricted the application of section 37 to operative agreements, while in George Harris et al. (1986), 68 di 1; 15 CLRBR (NS) 328; and 86 CLLC 16,059 (CLRB no. 597) (pages 9; 337; and 14,523), the CLRB found that section 37 applied during negotiations even if the collective agreement had not expired. In Peter G. Reynolds et al. (1987), 68 di 116; and 87 CLLC 16,011 (CLRB no. 607) (pages 126-128; and 14,107-14,108), the CLRB apparently restricted the application of that section by ruling that the duty of representation, contrary to the grievance and arbitration procedures, continues to apply even when the collective agreement has technically expired.

[35] However, in George Cairns et al., supra, the Board decided that its supervisory role with regard to the union’s duty of representation at collective bargaining should be just as visible as with regard to the duty of representation during the grievance process. The reconsideration panel in George Cairns et al., [2000] CIRB no. 70, further determined that section 37 should be given a broader interpretation by considering the particular context of the labour relations and the Code’s provisions.

[36] The labour and management communities reacted strongly to the Board’s position until the Federal Court confirmed both the original panel’s decision ordering the reopening of an appendix to the collective agreement on three issues, and the reconsideration panel’s decision on the broad interpretation that should be given to section 37.

[37] With this background in mind, let us examine how the Board described the union’s role in its original decision (George Cairns et al. (35), supra):

[105] The Board’s jurisdiction to review a union’s actions is therefore very narrowly focussed. The Board’s interest is in the union’s process and not in whether the union came to the right decision. As a cornerstone of its jurisprudence, the Board has continuously maintained that a union is entitled, without interference, to exercise its judgment in representing its membership. It is therefore not up to the Board to interpret the collective agreement or any other collateral agreement that might ensue. Having said this, it is safe to assume that when a union signs a collective agreement, it has sought its intended effects, and the representations made to the membership must not distort the intended effect of the agreement.

[106] The duty of fair representation has both a procedural and a substantive component. The substantive component attaches to the effect of the union’s actions, the consequences of which could be arbitrary, discriminatory or in bad faith, even though they appear to be legitimate, for example when they result in the exclusion of a particular group from the benefits of the collective agreement. On the other hand, procedural violations include decisions made by the bargaining agent that adversely affect the interests of an individual or minority group of employees as the result of a process that is tainted by hostility, ill-will, discrimination or bad faith. Thus, it is essential that both the process and the substance of the decision be free from arbitrariness or bad faith.

[107] The duty of fair representation may also be assessed by a three-pronged test. Has the union fulfiled its institutional role in representing all its members? Were employee rights within the regime of collective bargaining appropriately protected? Were critical job interests such as seniority, discipline and job security suitably considered in the collective bargaining process?

[108] In the first test, the union need not achieve particular results or even achieve the outcome it set out as its goal in the first place. It should also be made clear that putting a vote to the membership is not wrong per se. What is key, however, is that the vote must be carried out in a context that is fair and free of discrimination and that proposals put to the membership are the subject of due thought and consideration of its membership, including the minority.

...

[110] While there is nothing unlawful about a union favouring a group of employees over another, and recognizing that a union has a great deal of latitude in making decisions, the union must nevertheless reasonably weigh all relevant factors. Reasonable means rationally applying relevant factors after assessing and balancing all legitimate interests. The issue is not whether a decision is right or wrong, or whether the union could have decided differently. Rather, the union must ask itself whether its decisions are reasonable having regard to all circumstances.

[111] Where critical interests are at stake, the union must even more seriously turn its mind to the circumstances of those who in all likelihood will be adversely affected by its decision. It has been said that seniority is “the most valuable capital asset of an employee of long service” (see Summers and Love, “Work Sharing as an Alternative to Layoffs by Seniority” (1976), 124 U. of Pa. L.R. 893, at page 902, as quoted in Dufferin Aggregates, supra).

[112] As the defender of this most important principle, the union cannot afford to take a careless or casual attitude when continuing employment is at stake. As representative of the bargaining unit as a whole, it has a duty to achieve a certain fairness between all groups. Its position and decisions must not be seen as giving undue advantage to one group over another or allowing extraneous interests to cloud the issue. The Board has consistently found that the bargaining agent will be held to a much stricter standard where the career path of an employee may be seriously jeopardized and its actions more closely scrutinized than in other cases.

[113] The weighing of interests and the ultimate choices are without a doubt highly political and will inevitably be influenced by competing preferences, values and viewpoints. However, the union will be judged on whether it approached the issue objectively and acted responsibly towards all its members. It must take a reasonable view of the problem and thoughtfully assess the various and conflicting interests.

(pages 36-38; and 143,144-143,145)


[38] The reconsideration panel had the following to say in Georges Cairns et al. (70), supra:

[63] It is important that in the present matter, the Board take care to ensure that section 37 is given meaning in its statutory context, in consideration of the facts of the present case and industrial relations considerations. In VIA Rail Canada Inc. (1998), 107 di 92; 45 CLRBR (2d) 150; and 99 CLLC 220-010 (CLRB no. 1233), the CLRB noted that while the collective agreement had technically expired, its essential content continued in force pursuant to the freeze provisions of the Code until effective negotiations to resolve the very outstanding issues now in dispute had been concluded. It is very doubtful, if in these circumstances, and in the context of the other relevant statutory provisions, including section 50 of the Code, the Board’s concern about the ensuing negotiations could ever be reasonably construed as a concern with the negotiation of an agreement outside of the Board’s proper jurisdiction. Importantly, on the evidence now before the reconsideration panel, it is impossible to conclude that the anticipated effective negotiations have occurred. On this basis alone, this aspect of the request for reconsideration should be refused.

[64] The reconsideration panel is, nevertheless, also of the view that the decision of the initial panel in the instant case is in keeping with the appropriate interpretation to be given to section 37 of the Code. Workplace relationships in federal industries in Canada are generally, at the present time, founded on the expectation that the rights under applicable collective agreements are of a continuing nature. The notion that seniority rights, essential working conditions, the right to employment and other rights of minority employees already in existence under one collective agreement could be arbitrarily and conclusively terminated by a collective agreement supported by a narrow majority and that any inquiry by the Board as to whether this was done fairly would be prohibited by section 37's wording appears to this Board to be inconsistent with a reasonable interpretation of that section of the Code in the light of its statutory context as is indicated by the authorities cited above. The present Board does not feel that it can apply the present Code in a manner to so limit its jurisdiction on the basis of the text of section 37 in its statutory context. The argument on authority that the Board should so limit its jurisdiction appears therefore to the reconsideration panel to be without merit as the authorities do not appear to provide the unequivocal support contended for such a position. More importantly, it appears that no such intention to limit the scope of the Board’s inquiry is manifest in the text of the section itself.

(pages 29-30)

[39] For its part, the Federal Court of Appeal in VIA Rail Canada v. Cairns, [2001] 4 F.C. 139, concurred with those two decisions in the following terms:

[52] Section 37 imposes upon a union a duty to fairly represent its members in the representation of the rights that they have acquired by virtue of the collective agreement that is applicable to them. This does not necessarily relieve the union from such a duty outside the term of a collective agreement. Indeed, once notice of collective bargaining has been given, the terms or conditions of employment or any right or privilege of the employees in a bargaining unit are frozen by paragraph 50(b) until the parties gain the right to strike or lockout in accordance with section 89 [as am. by S.C. 1998, c. 26, s. 39; 1999, c. 31, s. 157]. The statutory freeze would have no meaning unless those terms, conditions, rights or privileges which are its object have a source...

...

[54] VIA and the BLE argue that extending the duty of fair representation to collective bargaining offends the principle of free collective bargaining. They argue that such an extension would destroy the necessary give and take of contract negotiations by restraining the union from bargaining away any existing rights. I disagree. The existence of a duty of fair representation does not preclude a union from making concessions with respect to existing rights or privileges of its members in order as part of the bargaining process. What it does do, is to require that the union, in making those concessions not act in a manner that is arbitrary, discriminatory or in bad faith during the collective bargaining process.

[55] To hold otherwise would be to allow a union to simply put off dealing with controversial matters such as the crewing initiative in this case, so as to address them with the employer during collective bargaining instead of during the term of the collective agreement. While dealing with the matters during the term of the collective agreement would give rise to a duty under section 37, delaying negotiations would shelter the union from scrutiny under section 37. In my opinion, an interpretation that allowed such a result would be irrational and absurd.


(pages 166-168)

[40] The principles that emerge from these citations suggest that the duty of fair representation applies not only to the grievance and arbitration procedures contained in the collective agreement, but also to the negotiation and renewal processes of the collective agreement. In both cases, the Board gives unions a long leash with regard to decisions affecting its members. In matters of grievance and arbitration, the Board is very meticulous when examining a union’s actions in relation to the complainant’s interests.

[41] However, when collective bargaining is at issue, the Board must consider the union’s conduct according to other criteria, which are as follows (see George Cairns et al. (35), supra):

[107] ... Has the union fulfilled its institutional role in representing all its members? Were employee rights within the regime of collective bargaining appropriately protected? Were critical job interests such as seniority, discipline and job security suitably considered in the collective bargaining process?
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

Careful!

ALPA carried out polling and pre-negotiations surveys in 2017/2018, but there was generally no release of the results of these surveys, and no indication that ALPA would not be negotiating a seniority list uniformly ordered by DOH.

Although the MEC communicated on December 21, 2018 that the WPSL gave seniority credit to pilots with previous employment history at Encore, the MEC had previously communicated on November 2, 2018, that it intended to negotiate a Letter of Understanding with WJ that "recognizes the seniority of WestJet and Encore pilots within the WestJet group."

Therefore, it was on this date that the Code's 90 day limitation period commenced running for those pilots who claim their seniority rankings were unfairly harmed by ALPA's actions.

The latest date for filing an Unfair Labour Practice complaint alleging a violation of Section 37's duty of fair representation would be January 30, 2019 or January 31, 2019.

Subsequent to that date, a DFR complaint would be time barred.
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

On August 24, 2017, the MEC said,
"We have also received comments about why we have not revealed raw survey data results from the negotiating survey. As you may understand, at this juncture, keeping this data private is considered a best-practice in bargaining across our industry. The Negotiating Committee is currently analyzing the data and the bargaining priorities it reveals will be communicated at the appropriate time. The MEC wants every one of our pilots to be fully updated and informed to understand what is being negotiated on their behalf and have confidence that their voices and interests are being brought forward. You will be updated by the Negotiating Committee regularly and kept up to date on the progress of negotiations.
Did the MEC follow through with its commitment to keep OTS pilots updated and informed so that they understood that ALPA would be ignoring its Constitutional and contractual committment to negotiate a seniority list uniformly ordered by DOH? It would be interesting to know if ALPA indicated prior to 90 days ago (from today) that it would replicate the WPDL in the seniority list. If so, any DFR complaint to the CIRB would be time-barred. In that case, the only option would be a Breach of Contract action in civil court.



ALPA_MEC_Aug24,2017_Update.jpg
ALPA_MEC_Aug24,2017_Update.jpg (346.15 KiB) Viewed 5111 times
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

And for Swoop pilots, any ability they had to file a DFR complaint against ALPA as a result of the Kaplan Award announced on September 30, 2018 that saw them lose their status, would have extinguished on December 29, 2018 at midnight.
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Re: China_CAAC's Merged Threads

Post by Alcoholism »

The Tenth Man wrote: Mon Dec 31, 2018 7:57 am On August 24, 2017, the MEC said,
"We have also received comments about why we have not revealed raw survey data results from the negotiating survey. As you may understand, at this juncture, keeping this data private is considered a best-practice in bargaining across our industry. The Negotiating Committee is currently analyzing the data and the bargaining priorities it reveals will be communicated at the appropriate time. The MEC wants every one of our pilots to be fully updated and informed to understand what is being negotiated on their behalf and have confidence that their voices and interests are being brought forward. You will be updated by the Negotiating Committee regularly and kept up to date on the progress of negotiations.
Did the MEC follow through with its commitment to keep OTS pilots updated and informed so that they understood that ALPA would be ignoring its Constitutional and contractual committment to negotiate a seniority list uniformly ordered by DOH? It would be interesting to know if ALPA indicated prior to 90 days ago (from today) that it would replicate the WPDL in the seniority list. If so, any DFR complaint to the CIRB would be time-barred. In that case, the only option would be a Breach of Contract action in civil court.



ALPA_MEC_Aug24,2017_Update.jpg
The Tenth Man wrote: Sun Dec 30, 2018 8:05 am
The Tenth Man wrote: Sat Dec 29, 2018 9:56 am ...Policies are tools of unions. Unions have Constitutions that specify compliance with these policies. ALPA has violated its Constitution as a result of violating Seniority Policy. What is the remedy and/or penalty?...
In answer to the question I posed, guidance is found in Berry v. Pulley, 2002 SCC 40, the Supreme Court of Canada's ruling in the case:
63 However, this is not to say that union members do not have some obligations inter se. By joining a union, the member agrees to follow the rules of the union, and, through the common bond of membership, union members have legal obligations to one another to comply with these rules. If there is a breach of a member’s constitutional rights, this is a breach by the union, and the union may be liable to the individual. Similarly, the disciplinary measures in the constitution can be imposed by the union on a member who contravenes the union’s rules. A failure by the union to follow these disciplinary procedures may cause it to breach its contractual obligations to the other members, giving rise to corresponding contractual remedies.


64 In addition to potential internal procedures, a failure by the union to insist on compliance with the constitution or impose disciplinary measures for its breach may allow members to initiate proceedings either at the Canada Industrial Relations Board, or the courts, depending on the nature of the complaint. Aside from actions against the union, a member who is harmed by the breach of the union’s rules by another member may, if the requisite elements are present, have an action in tort against that member.
According to the cases I have read, normally a plaintiff must exhaust all grievance procedures and/or internal union procedures to seek redress prior to seeking the help of the courts. In this case, a grievance as not an appropriate vehicle as the issue is not an employer violation of rights under the contract. Nor are any internal ALPA processes able to solve the problem of an improperly and illegally negotiated seniority list; the illegal act is complete. The damage done to seniority rankings has been effected, although the quanta of financial damages is not calculable at this time. Only with a failure to upgrade (or hold base/equipment) on the schedule envisioned if the illegal act by ALPA had not occurred (according to the MEC's communications) will the damages clock start ticking.

In the meantime, recall from the MEC Chairman position hardly seems the penalty as envisioned by ALPA's Constitution for a failure to comply with an established policy of the ALPA Board of Directors (i.e. the Seniority Policy).

Importantly, I am told with those with knowledge of the negotiations that it was indeed ALPA, through its agents, who pressed the issue of the non-DOH seniority list. As such, if this is true, then ALPA may not escape liability for a breach of the DFR owed to OTS pilots by maintaining that it exchanged harm done to some of its members in return for a greater good for the bargaining unit as a whole. In actual fact, ALPA's own actions in negotiating the non-DOH seniority list (as the MEC states is the case) not only was not done for a valid labour relations purpose, it also harmed the bargaining unit as a whole by potentially exposing the members to a negative result in the event that a merger occurs with another pilot group at some point, and the seniority rankings of the pilots hired post 2014 are penalized on the integrated seniority list with respect to the pilots of the other company.

When the seniority list is presented to the MEC/LEC's (if not already done so), and if indeed the list violates the established ALPA BOD policy, the time will then be ripe and I suggest that a duty will be incumbent upon the ALPA MEC to investigate the laying of a charge(s) against the former MEC Chairman, and to investigate the laying of charges against the members of the NC as well as the former MEC Vice-Chairman (now Canada Board President - Elect), depending on their roles in the breach of ALPA's policy.

Attached are the pages from the ALPA Constitution and Bylaws outlining the procedures for ALPA to follow in the charge and hearing process.

ALPA_Constitution_and_Bylaws_p59_disciplinary_procedure_1_jpeg.jpg

ALPA_Constitution_and_Bylaws_p60_disciplinary_procedure_2_jpeg.jpg

ALPA_Constitution_and_Bylaws_p61_disciplinary_procedure_3_jpeg.jpg
The Tenth Man wrote: Mon Dec 31, 2018 9:17 am And for Swoop pilots, any ability they had to file a DFR complaint against ALPA as a result of the Kaplan Award announced on September 30, 2018 that saw them lose their status, would have extinguished on December 29, 2018 at midnight.
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Re: China_CAAC's Merged Threads

Post by Alcoholism »

The Tenth Man wrote: Sun Dec 30, 2018 8:05 am
The Tenth Man wrote: Sat Dec 29, 2018 9:56 am ...Policies are tools of unions. Unions have Constitutions that specify compliance with these policies. ALPA has violated its Constitution as a result of violating Seniority Policy. What is the remedy and/or penalty?...
In answer to the question I posed, guidance is found in Berry v. Pulley, 2002 SCC 40, the Supreme Court of Canada's ruling in the case:
63 However, this is not to say that union members do not have some obligations inter se. By joining a union, the member agrees to follow the rules of the union, and, through the common bond of membership, union members have legal obligations to one another to comply with these rules. If there is a breach of a member’s constitutional rights, this is a breach by the union, and the union may be liable to the individual. Similarly, the disciplinary measures in the constitution can be imposed by the union on a member who contravenes the union’s rules. A failure by the union to follow these disciplinary procedures may cause it to breach its contractual obligations to the other members, giving rise to corresponding contractual remedies.


64 In addition to potential internal procedures, a failure by the union to insist on compliance with the constitution or impose disciplinary measures for its breach may allow members to initiate proceedings either at the Canada Industrial Relations Board, or the courts, depending on the nature of the complaint. Aside from actions against the union, a member who is harmed by the breach of the union’s rules by another member may, if the requisite elements are present, have an action in tort against that member.
According to the cases I have read, normally a plaintiff must exhaust all grievance procedures and/or internal union procedures to seek redress prior to seeking the help of the courts. In this case, a grievance as not an appropriate vehicle as the issue is not an employer violation of rights under the contract. Nor are any internal ALPA processes able to solve the problem of an improperly and illegally negotiated seniority list; the illegal act is complete. The damage done to seniority rankings has been effected, although the quanta of financial damages is not calculable at this time. Only with a failure to upgrade (or hold base/equipment) on the schedule envisioned if the illegal act by ALPA had not occurred (according to the MEC's communications) will the damages clock start ticking.

In the meantime, recall from the MEC Chairman position hardly seems the penalty as envisioned by ALPA's Constitution for a failure to comply with an established policy of the ALPA Board of Directors (i.e. the Seniority Policy).

Importantly, I am told with those with knowledge of the negotiations that it was indeed ALPA, through its agents, who pressed the issue of the non-DOH seniority list. As such, if this is true, then ALPA may not escape liability for a breach of the DFR owed to OTS pilots by maintaining that it exchanged harm done to some of its members in return for a greater good for the bargaining unit as a whole. In actual fact, ALPA's own actions in negotiating the non-DOH seniority list (as the MEC states is the case) not only was not done for a valid labour relations purpose, it also harmed the bargaining unit as a whole by potentially exposing the members to a negative result in the event that a merger occurs with another pilot group at some point, and the seniority rankings of the pilots hired post 2014 are penalized on the integrated seniority list with respect to the pilots of the other company.

When the seniority list is presented to the MEC/LEC's (if not already done so), and if indeed the list violates the established ALPA BOD policy, the time will then be ripe and I suggest that a duty will be incumbent upon the ALPA MEC to investigate the laying of a charge(s) against the former MEC Chairman, and to investigate the laying of charges against the members of the NC as well as the former MEC Vice-Chairman (now Canada Board President - Elect), depending on their roles in the breach of ALPA's policy.

Attached are the pages from the ALPA Constitution and Bylaws outlining the procedures for ALPA to follow in the charge and hearing process.

ALPA_Constitution_and_Bylaws_p59_disciplinary_procedure_1_jpeg.jpg

ALPA_Constitution_and_Bylaws_p60_disciplinary_procedure_2_jpeg.jpg

ALPA_Constitution_and_Bylaws_p61_disciplinary_procedure_3_jpeg.jpg
The Tenth Man wrote: Sat Dec 29, 2018 7:59 am REPORT OF THE MERGER STUDY COMMITTEE TO THE BOARD OF DIRECTORS AT THE FOURTEENTH BIENNIAL CONVENTION

As a result of a resolution adopted by the Board of Directors, this Merger Committee was reactivated for the purpose of reviewing the present policies and procedures of the Association for the handling of seniority merger disputes.

Specifically, our assignment is embodied in the following resolution adopted by the Executive Committee and approved by you on a ballot dated May 28, 1956:

"RESOLVED that a recommendation be made to the Board of Directors to recall the Merger Committee, which presented its report to the 13th Biennial Convention, to review the Association's merger policy in the light of the last two years experience and report to the Board of Directors not later than the 14thy Biennial Convention any changes they believe are necessary to improve existent policy"

Since being notified of our recall as a Standing Committee of the Board, we have requested comments and specific suggestions regarding the application of the present seniority merger policy and procedure from the members of the Board of Directors, from pilot representatives of each of the airlines that have merged or consolidated since the last Convention, and from certain interested members of the Executive Committee. Some of these pilots accepted our invitation to personally apprear before us at meetings, others have replied by mail. In our opinion the response, while lacking the volume or vehemence of two years ago, has been adequate enough for us to study and evaluate the events and the resulting problems and complaints leading to our recall. This report and recommendation to the Convention will sustain certain certain remedial suggestions we hope will improve our policy and procedure.

We do not intend to review in this report, as we did before the 13th Convention, our comprehensive study of the past application of seniority to mergers or consolidations of airlines. We have concerned ourselves, in accordance with our assignment, with the application of Association merger policy and procedure to the two mergers since the last Convention and to the specific questions arising from these initial applications.

The two mergers that have taken place are:

Pioneer Airlines and Continental Air Lines
Eastern Air Lines and Colonial Airlines

1. Pioneer Airlines and Continental Air Lines

On December 7, 1954 the CAB approved the acquisition of Pioneer Airlines routes and equipment by Continental Air Lines. Appropriate and proper protective conditions for employees of both airlines were included in the Board's decision to permit the acquisition.

The pilots of both airlines willingly submitted the problem of the integration of their seniority lists to the procedures and policy adopted by the 13th Convention. (In the balloting just prior to government approval, Continental pilots voted for the Method #1 or application of length of service as the means of integration. Pioneer pilots voted for Method #2 or for consideration of the problems and factors peculiar to the proposed merger as the means of seniority integration of the two lists.)

The pilot representatives from each affected airline met in Chicago and after negotiation amd mediation arrived at a mutually acceptable list. This final seniority list was integrated by application of length of service as the basic rule with negotiated exceptions to the rule in certain areas of the list so as to adjust for recognized inequities peculiar to this merger.

The two airlines had no parallel or competitive route structure but there was a large disparity in age, route mileage, equipment and pilot numbers.

The Merger Committee recognizes this seniority merger as perhaps the most successful, insofar as the affected pilots are concerned, within the industry. As a measure of its success and acceptance, we note that we have received but one letter from the Continental - Pioneer pilots in which they stated that their main concern was over application of protective provisions over which they knew we had no control. We extend our thanks and our congratulations to this group.

2. Eastern Air Lines and Colonial Airlines

The acquisition of Colonial Airlines by Eastern Air Lines was approved by the CAB on January 25, 1956 subject to the usual employee protective conditions. The two airlines were of about equal age and there was little if any route duplication. However, there was a great disparity in route mileage, size and amount of equipment, and in the number of pilots employed by each airline.

In accordance with Association policy and procedure and prior to CAB approval both groups of pilots had voted to integrate their seniority list in the event of a merger by Method #1., the application of the length of service integration method. It was assumed that because the pilots on the two airlines had committed themselves to a fixed rule and method of integration for any merger, this actual seniority problem would be resolved simply and quickly by application of the known facts for clerical interspersion within a single list.

However, such did not prove to be the case. When the seniority representatives met at Headquarters to attempt to the solve the problems of merging the two lists through direct negotiation, it was found that the opinions as to the meaning, application and computation of length of service were so contradictory that agreement even on something so basic in principal could not be reached.

Agreement was finally reached in the mediation stage of the Association procedure and the two lists were merged on an individual basis, considering each pilot and negotiating a place for him within the single integrated list. Length of service as a factor was considered but only as a reference point.

As a sidelight, it is interesting to note that when we met here two years ago both these airlines supported the campaign to make length of service the sole factor to be considered in the event of a merger.

The committee has found the review of these two mergers interesting, not only because they were the first to use the new policy and procedure but because they developed so true to form.

The first, that is the Pioneer - Continental merger, of the two seniority mergers were successfully consummated with comparable minimum of argument and ill feeling.

Application of the length of service principal was generally equitable and therefore acceptable to those involved on both sides except for a small group of former first pilots on Pioneer who would evidently have been unfairly adversely affected. The equities for this group were finally adjusted for the individuals and a compromise solution applicable to this group accepted. The best measure of the success of these negotiations is the evident acceptance by the pilot group without the animosity evident in all past mergers.

On the basis of using this merger as a yardstick we would consider our policy and procedure a success and suggest it remain as written.

However, the Eastern - Colonial merger ran into difficulties. Difficulties, which we, in the main, anticipated and attempted to warn you of in our last report to the Convention. This Committee, after its comprehensive study and evaluation of the seniority concept and its application in all kinds of combinations of mergers and consolidations, came to one main conclusion regarding pilot behaviour when faced with a merger. That is, and I quote from our report to the Board of Directors at the 13th Convention:

"You will admit that there is no one more independent and individualistic than an air line pilot, especially when he thinks his rights or his pay or his security have been unilaterally or unfairly predetermined without consideration of individual case merit or equity. He will compacently accept your decisions and will agree that you acted for the best interest of all until he finds that his airline, and conseuqently his rights, his pay, his security, is embroiled in a merger or a consolidation and an Association law governs and limits his actions by an inflexible prescribed policy. He then becomes vocal and outright rebellious against a policy which is now applied prospectively to his problem and set of circumstances which he will maintain is unique and should be considered and adjudged on individual merit and equity. He refuses compliance; threatens to resign; and invites expulsion from the Association by seeking legal and governmental help outside the prescribed Association policy and procedure.

Therein lies our weakness. We cannot enforce or compel compliance with policy except by threat of expulsion. Confronted with this particular problem, the committee is convinced, the affected pilot groups will invite expulsion.

Further, even if we expel a group, we have not solved the problem but have only compounded it. They will still refuse to comply with prescribed policy, they are outside of the Association, and as a result, the Association is immeasurably weakened and discredited.

Pilot groups will not willingly submit their rights, their jobs, and their security to a procedure and policy which they feel does not allow for, or disregards consideration of the facts and merits of their particular case. However, they will submit to a policy and procedure which does allow for the free expression of what each side considers equitable and just, and allows final determination on the basis of fact and merit. They will, as pointed out in our summary, bind themselves irrevocably by agreement to procedures wherein they think or hope that their ideas on equity and justice will influence the final and binding award."


Now let us examine the Eastern - Colonial merger.

First, I want to preface the following by saying that the Committee does not in any way contend that the merger policy has been violated. On the contrary, we feel that the parties have made good use of the machinery established to arrive at an acceptable solution to the problem.

The Eastern and Colonial pilots had both voted prior to Government approval when the voting was impersonal and principle prevailed, to integrate their lists in the event of any merger or consolidation, solely on the basis of length of service as defined by their current working agreements. However, when it became known that an actual merger was possible, the pilots on both airlines began to evaluate their position in respect to the other and found, evidently, that the particular unique circumstances of this merger required further consideration of the factors involved over that permitted by application of a fixed inflexible rule.

Colonial Airlines, a regional carrier with about 120 pilots of relative equal seniority as compared to Eastern, operated a DC-3 and DC-4 equipment out of two pilot bases in the New England area.

Eastern Air Lines, a trunk carrier with about 1200 pilots, operated a modern fleet of fast high paying aircraft from a number of bases ranging from Florida to New York.

Colonial negotiated a change in their agreement wherein furlough time was to be accredited as length of service. This was objected to by Eastern.

Eastern pilots after evaluating the problems and factors peculiar to the merger requested that each airline be allowed to reballot their pilots to determine whether they still wished to merge by application of the length of service principle. Colonial pilots objected to this contending that Eastern and Colonial had, in accordance with Association policy and procedure, committed themselves to the length of service principle.

Subsequently, prior to settlement of this problem, the time for reballoting under the merger policy and procedure arrived. On this ballot Colonial remained with Method #1 - Eastern voted for Method #2.

In negotiations the Eastern representatives, in an effort to apply principle to this unique set of circumstances, applied their own definition of the length of service integration concept. Length of service was not only seniority accrual based on date of hire but it was a place on the Eastern seniority list which guaranteed the pilot certain rights and privileges within Eastern. Specifically, this position determined priority of job rights and opportunities and they refused to allow Colonial pilots, because of the application of an unrestricted length of service concept, the windfall of flying their largest, fastest, higher paying equipment fromt heir most desirable bases just because through the merger they had acquired Colonial's merger routes and equipment.

So, we have had two successful seniority mergers under the new policy and procedures. In that degree our work has proven a success. However, we have been asked to improve our policy by defining length of service. Up until now we had assumed that everyone knew what length of service meant. Two years ago within this hall there was almost open warfare because some wanted it adopted as the Association policy and some did not. After careful consideration of this request, we have amended the policy and procedure so that it contains that definition of length of service which is part of the seniority section of most of our agreements.

We have also been asked to do away with the annual balloting of pilots requiring them to choose Method #1 and Method #2. At the time we wrote our present policy and procedure we included the ballot provision for four good reasons:
  1. We wanted the pilot in the field to be exposed to a seniority responsibility at least once a year in the hope that he would actively appraise his personal position, as it may apply to other pilots, and other airlines. We had hoped that because he should vote he might even out of idle curiousity ask some questions relative to the problems inherent in seniority integrations and the solutions applied.
  2. We wanted to permit a procedure wherein if two airlines wanted to merge on the basis of length of service and had the courage of their convictions, they could commit themselves to that method for a years time.
  3. We also wanted to make certain that pilots electing Method #2, which by the way does not prohibit merging by application of length of service, had machinery ready and immediately available to settle their differences.
  4. Most of all we wanted a cold impersonal vote from the pilots, hopefully without selfish motives for personal gain. We have found that pilots, like people, are apt to become prejudiced for their side after they can appraise or evaluate this position. This also applies to nations as evidence by this newspaper clipping.
We still think these reasons valid and have not removed the balloting from our amended procedure.

We have made other minor corrections in context. We believe that our policy and procedure is now more capable of handling future mergers.
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Re: China_CAAC's Merged Threads

Post by Alcoholism »

Schooner69A wrote: Fri Dec 28, 2018 10:33 pm Some folks benefit a group when they join it; others when they leave it...
FL410AV8R wrote: Thu Dec 27, 2018 9:59 pm Holy crap John is this another personality????
The Tenth Man wrote: Thu Dec 27, 2018 10:32 am Regarding the Common Law DFR, one Canadian case suggests that the civil court can only award damages, i.e. a financial award to compensate for the breach of the DFR. I have no idea if that is actually the case, or if a judge could order re-ordering of the seniority list.

For a Breach of Contract finding, according to the following US law resource, a court has five remedies:
The five basic remedies for breach of contract include the following: money damages, restitution, rescission, reformation, and specific performance. A money damage award includes a sum of money that is given as compensation for financial losses caused by a breach of contract. Parties injured by a breach are entitled to the benefit of the bargain they entered, or the net gain that would have accrued but for the breach. The type of breach governs the extent of damages that may be recovered.
Regarding specific performance, the following is said:
Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach. This ruling often happens when the subject matter of a contract is in dispute.
In a previous post, some time ago, I mentioned a recent Ontario case in which the Ontario Superior Court found that a union had breached its constitution. Here is what the presiding Justice ordered as a result of the finding:
D. CONCLUSION
[66] Therefore, I will treat the Plaintiffs’ motion as a motion for judgment. I grant judgment to the Plaintiffs and order that the Defendant union conduct leadership elections in which each member of CAWU may vote for the officers of the union. This election shall take place within 90 days of the release of these Reasons for Decision.

[67] If the parties cannot agree about the matter of how candidates for office are to be nominated or about any matter incidental to the election, they may make submissions in writing and I will settle the matter.

[68] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Plaintiffs’ submissions within 20 days of the release of these Reasons for Decision, followed by the Defendants’ submissions within a further 20 days.
As a result of the above case, I think it might be a reasonable possibility that if a court found that ALPA had violated its Constitution through the actions of its representatives (MEC Chairman, MEC Vice-Chairman, MEC Negotiating Committee members) in failing to comply with an established policy of the Board of Directors by negotiating a non-DOH seniority list, then I believe that a judge would be able to order specific performance, meaning he would order ALPA and the company (enjoined in the lawsuit?) to compose a seniority list that was in accordance with the established policy.
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

I am putting together a final synopsis of the DFR/Breach of Contract issue and composing in the style of what I feel would resemble a complaint filed with the CIRB, laying out the history of the situation and the relief sought and the evidence and case law supporting the "claimants" position.

As I was doing some digging, I again came across the 1999 CIRB decision in Cairns. Although the entire case should be read as a result of its applicability here, the following passage stood out:
[65].... In this respect, it can only be said that the BLE took what was a legitimate stance in representing first and foremost the members of the bargaining unit for which it was certified. In fact, it would have been ill-advised to have been influenced by the interests of employees outside the bargaining unit in reaching its decisions. In doing so, it would have exposed itself to complaints from its members, alleging that it had breached its duty of fair representation under section 37.
Compare the above reasoning to the MEC's communication on Nov 2, 2018:
“One List” Update 

In Washington, D.C., we held a joint MEC meeting with the Encore MEC. There were many items to discuss about how to work together, but one of the most important interim steps was to formalize an agreement and language between the two pilot groups on how to recognize the contribution that all pilots bring to WestJet. This agreement recognizes the seniority of WestJet and Encore pilots within the WestJet group. This document has been legally reviewed and meets the requirements set forth under the ALPA Constitution and Canadian labour law.  

This initiative follows the original intent of the “One List,” a policy that was overwhelmingly supported by pilots (based on survey results) at WestJet. Additionally, we believe WestJet group should view this agreement as good for them, as a major retention and attraction initiative at Encore.
Whose interests exactly was ALPA representing? The MEC's sole duty, while collective bargaining was ongoing between ALPA and WJ, was the protection of the seniority interests of pilots at WJ (the duty persists outside of bargaining, of course). The MEC had no business entering into an agreement designed to injure any WJ pilots out of concern for pilots in another bargaining unit.
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

A bit old, this reference from the 1982 McGill Law Journal, but I think the quoted passages add some colour to the discussion of the duty that a union owes its members. A duty, I suggest, that ALPA has not achieved in regards to some of its members in the WJ bargaining unit.
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

In composing my synopsis of the theory that ALPA violated the DFR of some WJ pilots, I have attempted to defend the opposite side of the argument. That requires finding that there was "some labour relations purpose" for ignoring established ALPA policy.

As I have previously posted in this thread, the communication from ALPA's agents prior to certification was only that ALPA could replicate the WPDL in an ALPA CBA if WJ pilots so desired. In one communication the OC further stipulated that the WPDL would require the agreement of WJ.

So, prior to certification, ALPA offered no substantive reasons why the bargaining unit would benefit from replicating the One List. The Organizing Committee and the ALPA VP Administration-Treasurer only said that it could be done.

After certification, a survey was conducted by ALPA covering numerous topics, one of which was the One List. The only official communication I am aware of that addressed the issue of the desire of WJ pilots in this regard was the MEC Update of November 2, 2018:
"...This initiative follows the original intent of the “One List,” a policy that was overwhelmingly supported by pilots (based on survey results) at WestJet...."
If the vast majority of WJ pilots indicated a desire to place NewCommercialPilot/WeedPro/TheTenthMan on the bottom of the seniority list, that alone (the majority's wishes) would not be a valid labour relations purpose for discrimination.

As was highlighted in the third attachment of the preceding post (McGill Law Journal), any rights of an employee prior to certification are extinguished with certification, and instead, a statutory regime replaces the individual employment contracts. This means that the "rights" of employees with Encore employment histories to preferential upgrade opportunities over employees with longer service at WJ also extinguish.

Ergo, there was no "right" of a pilot to a position on an ordered seniority list that favoured he/she over his/her colleagues. All employees in the bargaining unit were to be treated fairly in the negotiations that established seniority rankings.

The MEC confirmed this “tabula rasa” state of affairs with regard to the seniority list in February, 2018, when they stated that the order of the seniority list was a matter of negotiation and there was nothing pre-ordained:
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13AB2F3B-BE5A-4095-A63F-7B0DB2678E28.jpeg (591.82 KiB) Viewed 4827 times
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The Tenth Man
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

With the February 1, 2018 MEC Alert (above) regarding the seniority list, and Kaplan’s June 8, 2018 Order placing Swoop pilots and new hires onto the WPSL by date of hire, all pilots could be forgiven in thinking that ALPA had followed its established seniority policy and ordered the entire seniority list by date of hire, showing favouritism to none and fairness to all.
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Re: The Lure of a Combined Bargaining Unit

Post by The Tenth Man »

However, it also indicated that if the plaintiffs proved that the union had acted to sacrifice the jobs of certain members in an attempt to increase the size of the bargaining unit and thereby increase its own strength, a breach of the union's duty of fair representation "would probably be shown", as a lack of the "complete good faith" and "honesty of purpose" required of a union by that duty in the con­text of negotiations "would probably be present".

(Abramowitz v. OPSEU, Ontario Labour Relations Board, 1987)

The above paragraph is from a 1987 OLRB ruling and shows how improper motives during negotiations might raise the issue of the duty of fair representation. In the negotiations between ALPA and WJ, "jobs of certain members" were not sacrificed, but the seniority rankings of some pilots were. Allegedly WJ did not ask for these seniority rankings to be impaired; it came unilaterally from the union negotiators.

Was ALPA acting during the negotiations to increase the size of the bargaining unit and thereby increase its own strength? And is it trying to do so with the proposed LOU? The MEC Vice-Chairman (now ALPA Canada Board President) stated in October 2018:
Our first MEC resolution was to recognize Encore pilots as WestJet pilots – essentially to remove any professional barriers between our pilot groups that exist because of corporate branding or aircraft type. Since then I’ve been working with their MEC officers to cement ... the unification of our pilot groups starting with eventually creating a single MEC structure. This unity work very much captures my union philosophy. Stronger together.
The MEC's November 2, 2018 Update referred to a proposed LOU that was:
"... only a first step of many toward fully uniting with the Encore pilots, this will serve as an excellent example of how unity between pilot groups can benefit the pilot profession and airlines in Canada.

For far too long, we have allowed corporations to divide pilots, and this has been to the detriment of our profession. We firmly believe that when we have all the professional pilots working together across Canada, we will be in a much stronger position to advocate for pilots and start moving forward together. It will only be our unity that will give us the strength to make the changes to our industry and our profession that pilots have desired for so long ..."
It is hard to avoid a conclusion that the MEC wants to unite the two bargaining units into one and thereby increase its bargaining power.

One major problem that stands in the way of uniting the two bargaining units is the seniority list. ALPA's merger policy requires that a merged seniority list cannot change the order of the pre-merger seniority rankings. If ALPA had followed its seniority policy and ordered the WPSL by DOH, this would mean that any former Encore pilot would have flowed to the bottom of the list. In the event of a merger, unless the Encore pilots were simply stapled to the bottom of the WJ seniority list, many flowthrough pilots who were formerly senior to colleagues at Encore would end up being junior to these same pilots on the integrated list.

The only solution for ALPA was to ignore its seniority policy, and give superseniority credit to Encore flowthrough pilots. This enabled a future merger at any time by date of hire that would maintain the One List philosophy. All it took to achieve the One List philosophy in the CBA was to harm the seniority rankings of the OTS pilots hired since Encore commenced operations.

In any event, a merged bargaining unit is very unlikely unless WJ decides to merge the two companies. If a merged bargaining unit is not a likely outcome, what could the reason be for ALPA doing harm to the very pilots it was tasked with representing?
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Re: China_CAAC's Merged Threads

Post by CaptainHaddock »

WTF. So him rambling on quoting his own enormous irrelevant quotes just runs on. I come back to see what’s changed here-not much. It’s public, I get it. But he’s just jackhammering the WestJet forum. Is it just here, or is taking over other sections too?

Peace out
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Re: China_CAAC's Merged Threads

Post by Schooner69A »

What I'm getting from all this is that some WJ pilots got a burr under their blanket, got all hussied up, got some big guns, and shot themselves in the foot.


A bit of a mixed metaphor but what can you do with something this mixed up...?
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Re: China_CAAC's Merged Threads

Post by Shady McSly »

What?
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Re: China_CAAC's Merged Threads

Post by The Tenth Man »

Captain Haddock, you will be happy to know that the jackhammering is complete. I have exhausted my research on the topic. I am comfortable with my understanding on the subject and and content that I achieved my primary goal, which was to make some aware that their rights under labour law may have been violated, and that they had a limited time within whcih to act.

I talked to a CIRB staff member yesterday and as of 1 pm, there were no DFR complaints lodged against ALPA by members of the WJ bargaining unit. She gave me information regarding the 90 day limitation window for filing a DFR complaint that I'm not sure I agree with (re: the time the clock starts), but employees of the CIRB do not give legal advice. As was found in Woodley, their information or advice cannot be relied on in a legal sense.

In Woodley, the Board suggested that the limitation period may have commenced when the pilot first heard that CALPA announced the formation of a policy between the CAI and CRAL MEC's that "illegally" favoured flowthrough pilots ("The Quebec Accord"). In any event, by the time of the CBA being ratified, the pilots would have know, and even with this later time frame, the 90 day window was still closed, so the Board didn't need to rule on any of the other issues.

As 2019 is starting off great for me, I'm going to cease my activities here and go back to concentrating on the other activites in my life that I have been neglecting due to my recent relocation. I'm going to be careful, but I can't say for sure that I won't make the YYZ LEC Captain Rep's day at some point. No hard feelings Jim, hoping for a fellow employee to die is an entirely rational statement... :)

Three. Two. One...

See ya!
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Re: China_CAAC's Merged Threads

Post by JAHinYYC »

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Re: China_CAAC's Merged Threads

Post by cloak »

It's a sad "human(?)" response to find comfort in shooting the messenger and calm the hot emotions by ridicule and sarcasm!
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