Duty of Fair Representation (DFR)

[L39Guy]

I no longer have any skins in this game but am still interested in the welfare of ACPA's most junior and vulnerable members, particularly those that are laid off or will be soon.

One avenue this group may have is a DFR filing with the CLRB stemming from ACPA's refusal to allow these individuals to participate in the recent WAWCON survey. Laid off or not, these pilots are still part of the bargaining unit so long as they are on the seniority list and will eventually be returned to active status and will have to live with whatever outcome from the re-opener. They should have a say.

I suspect that one of the reasons why ACPA excluded this group is that the organization has reached the tipping point where the number of members on the seniority list without the DB pension would exceed those with the DB pension. By excluding the 600+ furloughed pilots from the survey, the DB group maintains its majority position; with the furloughed group it loses it.

Food for thought...

[Sharklasers]

I no longer have any skins in this game but am still interested in the welfare of ACPA's most junior and vulnerable members, particularly those that are laid off or will be soon.

One avenue this group may have is a DFR filing with the CLRB stemming from ACPA's refusal to allow these individuals to participate in the recent WAWCON survey. Laid off or not, these pilots are still part of the bargaining unit so long as they are on the seniority list and will eventually be returned to active status and will have to live with whatever outcome from the re-opener. They should have a say.

I suspect that one of the reasons why ACPA excluded this group is that the organization has reached the tipping point where the number of members on the seniority list without the DB pension would exceed those with the DB pension. By excluding the 600+ furloughed pilots from the survey, the DB group maintains its majority position; with the furloughed group it loses it.

Food for thought...

I am no lawyer but they can’t vote because they are no longer dues paying members. It’s the same reason retired pilots such as yourself can no longer participate in surveys and vote. Unlike the USA where members “with a reasonable expectation of recall” can vote we have no such language.

A DFR will go nowhere and no lawyer will take it on contingency. If you want to pass the hat and raise like 50k maybe Ray Hall can pick it up.

[L39Guy]

I am no lawyer either however here is a definition of DFR from federal labour law: https://laws-lois.justice.gc.ca/eng/act ... age-9.html. Notice it says “employees”.

Is a furloughed pilot still an employee?

In any case, it’s a suggestion that might be worth pursuing.

[prop2jet]

I am no lawyer either however here is a definition of DFR from federal labour law: https://laws-lois.justice.gc.ca/eng/act ... age-9.html. Notice it says “employees”.

Is a furloughed pilot still an employee?

In any case, it’s a suggestion that might be worth pursuing.

Once furloughed you are no longer an employee. By way of your collective agreement you have a right of recall when a position opens up.

[Sharklasers]

I am no lawyer either however here is a definition of DFR from federal labour law: https://laws-lois.justice.gc.ca/eng/act ... age-9.html. Notice it says “employees”.

Is a furloughed pilot still an employee?

In any case, it’s a suggestion that might be worth pursuing.

Yeah I get it, there are always going to be guys who take a bad situation and try to stir the pot.

If I had a dollar for every time I heard someone throw out “DFR! DFR!” Without knowing how to use it I could probably buy a fighter jet too. Facts are if AC isn’t in CCAA in 12 months at this rate it’s a victory. Capacity was down 92% in Q2 I think it’s admirable that AC And ACPA have managed to keep 3700 pilots on the payroll to date.
It seems the biggest gripes are the lack of CEWs and not slashing blocks more to save a few more jobs.
It’s unfortunate that the company decided not to avail itself of CEWS for the pilots, that is a complaint best brought up to your MLOs. CEWS is a program intended for people hoping to go back to work in short order. If you think that the 792 laid off pilots will be recalled quickly after the deep structural and fleet changes made such as pop canning 80 fins I have a bridge to sell you.

Imploding the union now will not do us any favours.

[alkaseltzer]

I am no lawyer either however here is a definition of DFR from federal labour law: https://laws-lois.justice.gc.ca/eng/act ... age-9.html. Notice it says “employees”.

Is a furloughed pilot still an employee?

In any case, it’s a suggestion that might be worth pursuing.

Yeah I get it, there are always going to be guys who take a bad situation and try to stir the pot.

If I had a dollar for every time I heard someone throw out “DFR! DFR!” Without knowing how to use it I could probably buy a fighter jet too. Facts are if AC isn’t in CCAA in 12 months at this rate it’s a victory. Capacity was down 92% in Q2 I think it’s admirable that AC And ACPA have managed to keep 3700 pilots on the payroll to date.
It seems the biggest gripes are the lack of CEWs and not slashing blocks more to save a few more jobs.
It’s unfortunate that the company decided not to avail itself of CEWS for the pilots, that is a complaint best brought up to your MLOs. CEWS is a program intended for people hoping to go back to work in short order. If you think that the 792 laid off pilots will be recalled quickly after the deep structural and fleet changes made such as pop canning 80 fins I have a bridge to sell you.

Imploding the union now will not do us any favours.

Think you hit the main points. The bone of contention is what do you define as "short order"? Trudeau didn't define it, Craig Landry wants to. All the other airlines in Canada have their non-active pilots on CEWS. Yes, the fleets aren't as complex. But none of them will have 100% recall when they do come back, yet they have ALL their pilots on CEWS.

Mike Rousseau has now said several times on public AND non public discussions, that AC doesn't want to be on the hook for benefits for furloughed employees. That's fair. Industry peers are doing the same. So why aren't we (furloughed pilots) on CEWS at least?

Did it go like:
ACPA: We want you to put everyone on CEWS
Company: Only if you allow us to do more than 600 layoffs as per the Covid19-MOA
ACPA: Screw you, we aim to minimize layoffs
Company: We will ensure there is enough in-fighting within your union

Anyone care to add or correct my hypothesis?

[red 5]

Biggest crisis to hit commercial aviation and you are infighting between each other, truly laughable .

[L39Guy]

I am no lawyer either however here is a definition of DFR from federal labour law: https://laws-lois.justice.gc.ca/eng/act ... age-9.html. Notice it says “employees”.

Is a furloughed pilot still an employee?

In any case, it’s a suggestion that might be worth pursuing.

Once furloughed you are no longer an employee. By way of your collective agreement you have a right of recall when a position opens up.

Correct me if I am wrong, but are furloughed pilots with > 6 months of service not keeping their “employee” pass travel privileges? If so, then they are indeed employees even while on furlough.

My point in this whole string is that I find it somewhat undemocratic and unfair to surgically removed a certain demographic from the bargaining process.

[altiplano]

Retired pilots keep their employee pass privileges too. Should they vote?

I see what guys are saying and the frustration in not being able to participate in any TA.

But in the ACPA Constitution only active members can participate in ratification votes.

Since (in theory) the survey is what the MEC/NC use in guiding their direction toward achieving a TA for ratification, it makes sense that they only solicit the active members they will vote.

Other inactive members, ie. management pilots, GDIP >3 years, LOA, all may return to the line also and they don't participate in the ratification process or survey either.

If you want to change the Constitution I suggest you start a petition directing the MEC to conduct a vote of the membership on the matter as that's what it will take to change it.

[flashheart]

Biggest crisis to hit commercial aviation and you are infighting between each other, truly laughable .

It's pronounced "In SOLIDARITY" or so I'm told

[Raymond Hall]

Some points of law, FYI:

In the federal jurisdiction, a "duty of fair representation" ("DFR") complaint (filed under Section 37) is made to the Canada Industrial Relations Board "CIRB", the long-time successor to the Canada Labour Relations Board ("CLRB").

Anyone contemplating such a complaint would do well to familiarize themselves with the requirements to plead a successful case. Start by having a look at the CIRB Information circular regarding same:

http://www.cirb-ccri.gc.ca/eic/site/047 ... 00103.html .

Section 37 states:

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.

In order to succeed, one must demonstrate one of those three criteria: arbitrary, discriminatory or bad faith. This is almost impossible to do, in my view, without solid evidence.

Have a look at the seminal case, McRaeJackson, where the CIRB sets out exactly what does and what does not constitute grounds for a successful Section 37 complaint:

https://www.canlii.org/en/ca/cirb/doc/2 ... ultIndex=1

Take a look at the recent decisions of the CIRB, which are all posted in CANLII, and can be sorted by date (reverse chronological) or by relevance:

https://www.canlii.org/en/ca/cirb/doc/2 ... ultIndex=2

Finally, a comment, re the history of this option. In my view, almost no Section 37 complaints are upheld by the CIRB, for two reasons. Either they do not meet the criteria of Section 37, or they purport to unduly interfere in a union's internal decision-making.

[Sharklasers]

That m you Mr.Hall, I believe a lot of pilots think that if a union makes any decision or picks a direction that impacts an individual negatively that the union is now open for a DFR complaint. I’ve heard people talk about it literally hundreds of times and it’s always a non starter.
I have only seen or heard of one ‘successful’ DFR complaint in my time as a pilot which was when particularly famous Jazz pilot began the process with a lawyer and it motivated ALPA to come to terms with him long before it reached any tribunal stage.

[tony ledsham]

Some points of law, FYI:

In the federal jurisdiction, a "duty of fair representation" ("DFR") complaint (filed under Section 37) is made to the Canada Industrial Relations Board "CIRB", the long-time successor to the Canada Labour Relations Board ("CLRB").

Anyone contemplating such a complaint would do well to familiarize themselves with the requirements to plead a successful case. Start by having a look at the CIRB Information circular regarding same:

http://www.cirb-ccri.gc.ca/eic/site/047 ... 00103.html .

Section 37 states:

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.

In order to succeed, one must demonstrate one of those three criteria: arbitrary, discriminatory or bad faith. This is almost impossible to do, in my view, without solid evidence.

Have a look at the seminal case, McRaeJackson, where the CIRB sets out exactly what does and what does not constitute grounds for a successful Section 37 complaint:

https://www.canlii.org/en/ca/cirb/doc/2 ... ultIndex=1

Take a look at the recent decisions of the CIRB, which are all posted in CANLII, and can be sorted by date (reverse chronological) or by relevance:

https://www.canlii.org/en/ca/cirb/doc/2 ... ultIndex=2

Finally, a comment, re the history of this option. In my view, almost no Section 37 complaints are upheld by the CIRB, for two reasons. Either they do not meet the criteria of Section 37, or they purport to unduly interfere in a union's internal decision-making.

Thanks to L39guy (hi Ed! ) for bringing this up. The news will soon come out that ACPA knew, or should have known, that AC would adopt CEWS v2.0, which would, by design, mitigate all layoffs.

Ray is correct that the CIRB is both spineless and toothless. The pilots still must file a DFR though. At the same time, it would be worth filing a class-action, civil lawsuit against ACPA. This should be done on behalf of all ACPA pilots, not just the furloughed pilots. A downbid, such as they threatened (to get continuing concessions) negatively affects all but the most senior pilots.
I think Ray Hall could steer everyone in the right direction.