Statutory Duty of Fair Representation: LOU (One List)

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

Post by lostaviator »

Alpa Male wrote: Mon Dec 10, 2018 7:20 am This issue was bound to stir up a great deal of emotion. I understand the desire to silence a person who pointed out the flaws of our current list, but sizeable bold print telling that person to 'shut it' won't help, or stop what's about to happen. I get it though; I'd be pretty upset if I stood to lose 100 spots of seniority. Most people are sympathetic to your plight; like I'm sympathetic to the pilots who felt that YYC was the only base when hired, but now commute for an upgrade. Or the pilots who lost their ten year passes — all 'promises' (?) when hired, but things change. Trust me; this "train" has a few stops left.

John has stated many times over that he's not a lawyer. However, John is a man who had seen this before and witnessed how pilots behave over seniority. There are a great many OTS pilots who are affected by this, and who feel Encore pilots have no place on our list. To think that an OTS has not been resenting or plotting against the 'one list' from day one is foolish. These pilots are just waiting for an opportunity to challenge the validity of the one list. These OTS pilots will not seek legal counsel from John, but they will seek legal counsel, that's sure to happen. I've flown with many of them. I've heard their complaints and plans to fight for their proper placement on the PDL.

Be pissed at John all you want, but he's only presenting the shit that lawyers will throw at a wall until something sticks.
Do you ever get tired of going through the process of creating new gmail accounts so you can make a new avcanada profile, just to talk to yourself on avcanada, John?
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The Tenth Man
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Re: Duty of Fair Representation: LOU (One List)

Post by The Tenth Man »

Rezy, I further looked at the Kaplan order last night and recognized that you are indeed correct. The WPDL will not extinguish until Kaplan’s Award expected before the 31st of this month. In his Order, he referred to using “established policies” for backfilling of vacancies created by the WPSL bid process for Swoop position filling.

That likely means that no DFR is owed the OTS pilots, or any other WJ pilots at this time, and subject to any other labour law, or civil law, ALPA is free to negotiate an LOU that recognizes Encore service time in a CBA.

They would need to do this and have the LOU signed prior to Kaplan’s impending Award. That is a glimmer of hope for Encore pilots!

There would still be the matter of the contractual breach of the constitutional provisions to reckon with.
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Re: Duty of Fair Representation: LOU (One List)

Post by The Tenth Man »

lostaviator wrote: Mon Dec 10, 2018 10:55 pm
Alpa Male wrote: Mon Dec 10, 2018 7:20 am This issue was bound to stir up a great deal of emotion. I understand the desire to silence a person who pointed out the flaws of our current list, but sizeable bold print telling that person to 'shut it' won't help, or stop what's about to happen. I get it though; I'd be pretty upset if I stood to lose 100 spots of seniority. Most people are sympathetic to your plight; like I'm sympathetic to the pilots who felt that YYC was the only base when hired, but now commute for an upgrade. Or the pilots who lost their ten year passes — all 'promises' (?) when hired, but things change. Trust me; this "train" has a few stops left.

John has stated many times over that he's not a lawyer. However, John is a man who had seen this before and witnessed how pilots behave over seniority. There are a great many OTS pilots who are affected by this, and who feel Encore pilots have no place on our list. To think that an OTS has not been resenting or plotting against the 'one list' from day one is foolish. These pilots are just waiting for an opportunity to challenge the validity of the one list. These OTS pilots will not seek legal counsel from John, but they will seek legal counsel, that's sure to happen. I've flown with many of them. I've heard their complaints and plans to fight for their proper placement on the PDL.

Be pissed at John all you want, but he's only presenting the shit that lawyers will throw at a wall until something sticks.
Do you ever get tired of going through the process of creating new gmail accounts so you can make a new avcanada profile, just to talk to yourself on avcanada, John?
lostaviator, the answer to your question is a firm “no”, but I cannot claim ownership of the account to which you are referring.
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The Tenth Man
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Re: Duty of Fair Representation: LOU (One List)

Post by The Tenth Man »

With Kaplan’s Award, the Collective Agreement between ALPA and WJ pilots will be in effect. At this point, ALPA will owe the DFR to WJ pilots.

Past this point, if ALPA commences to negotiate, or is still in progress negotiating an agreement designed to injure the rights of OTS pilots enshrined in the CBA, they would be in violation of the DFR. (Absent a valid labour relations purpose)

The following Supreme Court of Appeal decision, Cairns, (one dissenting opinion) cited some 40 times in other judgments, illustrates the remedy available to the CIRB in a DFR violation case.

(b.1) in respect of a contravention of the obligation to bargain collectively in good faith mentioned in paragraph 50(a), by order, require that an employer or a trade union include in or withdraw from a bargaining position specific terms or direct a binding method of resolving those terms, if the Board considers that this order is necessary to remedy the contravention or counteract its effects;

. . .

(2) For the purpose of ensuring the fulfilment of the objectives of this Part, the Board may, in respect of any contravention of or failure to comply with any provision to which subsection (1) applies and in addition to or in lieu of any other order that the Board is authorized to make under that subsection, by order, require an employer or a trade union to do or refrain from doing any thing that it is equitable to require the employer or trade union to do or refrain from doing in order to remedy or counteract any consequence of the contravention or failure to comply that is adverse to the fulfilment of those objectives.
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Re: Duty of Fair Representation: LOU (One List)

Post by The Tenth Man »

At the risk of being repetitive, I offer the following excerpt from Kaplan's Order of June 8, 2018. As Rezy pointed out, the WPDL is still being used to fill backfill vacancies created by Kaplan's Order to fill Swoop pilot positions using the WPSL.

We know that Kaplan ordered that (i) Swoop pilots integrated onto the WPSL, and (ii) pilots hired after the Swoop pilot integration, were both added to the WPSL by their DOH.

The attachment is proof that the balance of WJ pilots, i.e. everyone besides those in groups (i) and (ii) above are on the WPSL ordered by their DOH. The evidence is unequivocal that the WPSL is a DOH (WJ) document and that vacancies in the CBA will be awarded by seniority (based on WJ DOH).




ALPA_Kaplan_Interim_Order_June_8_2018_p4_JPEG_LI (2).jpg
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The Tenth Man
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Re: Duty of Fair Representation: LOU (One List)

Post by The Tenth Man »

In the first case of Cairns, argued before the CIRB (decision 35) in 1999, the Board had the following to say. In this case, the BLE was the union accused of a DFR violation by former members of the UTU. Members of the UTU were absorbed into the BLE represented bargaining unit following VIA Rail taking over passenger services from CN/CP. The bold, underscored sections are sentences I consider helpful regarding the situation with ALPA.



65 During the initial period, the UTU represented its members until its certification was revoked in favour of the BLE to represent the newly merged bargaining unit. Until that certification was revoked, the BLE had no legal ties with UTU members. 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.
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Re: Duty of Fair Representation: LOU (One List)

Post by The Tenth Man »

There is so much of direct relevance to ALPA and the Herndon Pact in the DFR paragraphs of Cairns, 1999, that I will merely post the unabridged section in its entirety and let you read with a view to comparing the situation to ours.

The Duty of Fair Representation

103 A bargaining agent’s duty of fair representation is statutorily expressed 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."



104 This duty arises out of the exclusive power given to the bargaining agent to speak on behalf of all employees of the bargaining unit. It has been the subject of countless Board decisions and the standard test has been described in Canadian Merchant Service Guild v. Guy Gagnon et al., 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509. In that judgment, 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. (page 527)"




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 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.


109 The culminating event to all this saga is that the Crew Consist Adjustment Agreement was put to the membership and that it was ratified by a majority, a majority identifiable as the locomotive engineers. It was also established that the vote was divided along craft lines. How could it be otherwise, inasmuch as the majority group had everything to gain, and it would have been unwise to strike over a contract that gave them the lion’s share of the benefits. As it were, the conductors and assistant conductors had no hope of defeating the majority group.


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.


114 In this matter, the Board notes that the BLE gave little or no weight to the normal and natural consequence of the Board’s decision to merge the two bargaining units. In fact, the BLE continued to maintain the distinction between the two groups of employees, the haves and the have nots, where there should have been only one. In this respect, the union did not fulfill its institutional role of bargaining agent.


115 The second test examines whether the union appropriately protected employee rights within the collective bargaining regime. As the Crew Consist Adjustment Agreement forms part of the collective agreement on behalf of all the employees in the bargaining unit, the conductors and assistant conductors were entitled to the same level of representation as the locomotive engineers. The Board specifically recognized this fact when it decided, based on equal access to the newly created positions by both groups of affected employees, that a single new bargaining unit was appropriate.


116 What these proceedings have brought to light is the BLE’s recklessness in telling the conductors and assistant conductors that they would be able to return to similar positions to CN without ensuring beforehand that these rights were indeed available. It appears that when VIA aggressively put forward its crew reduction initiative, it did not give adequate consideration to the fall out of such a decision. Nor did the BLE take immediate steps to inquire further into the matter until it obtained the right to represent the merged bargaining unit, and discussions with the employer reached a near standstill.


117 On all accounts, its campaign representations appear to have been based on unverified facts and assumptions, for example, that conductors and assistant conductors would obtain the similar benefits and conditions as the locomotive engineers, that they would have equal access to training and that the Special Agreement would apply. The appointment of Mr. Leclair to the bargaining team, while seemingly a good initiative, was more in the nature of a stopgap measure than as part of an overall framework to better serve the interests of the conductors and assistant conductors. The negotiation of rights involving another employer without confirmation demonstrates an improper representation of employee rights within the regime of collective bargaining.


118 On this point, the Board therefore finds that the BLE failed to uphold a reasonable standard of competence in representing its members and, in this regard, is accountable to them for its shortcomings.


119 As to the standards of representation meted out by the third part of the test, the complainants have been successful in establishing that the BLE was not vigilant in protecting the seniority and job security interests of an important part of the bargaining unit. It relied on the majority vote to justify its actions, without addressing the hard core issues that affected almost half of the bargaining unit. The benefits obtained on behalf of the conductors and assistant conductors, which are for the most part directed at terminating their employment, pale in comparison to the generous benefits obtained for the locomotive engineers.


120 Within the overall spectrum of the crew consist initiative and ensuing agreements, the Board notes a single-minded drive on the part of VIA to see these reductions through. No explanation was given to this panel as to the reasons for the urgency of implementing this initiative, which justified skipping essential steps. These were major changes within VIA. They involved redefining running trades with a history of over 100 years in the making, the disappearance of close to 250 jobs, the creation of some 70 in a competing bargaining unit (the CAW), a major training program to allow conductors and assistant conductors to qualify as locomotive engineers, the assignment of new duties and responsibilities of the locomotive engineers, which warranted a significant premium increase in wages. Somehow, it does not make labour relations or business sense for the BLE to have embarked on such a venture without a blueprint for change, a communications strategy, a support plan for displaced employees and financial objectives. Coming from an experienced and credible trade union, long-range thinking should have accompanied a venture such as this. How else could the membership’s needs and interests be balanced in a serious and rational way?


121 Had the actions under review been those of the Board rather than those of the union, and had the Board acted with the same disregard for the welfare of the complainants as did the union, there is little doubt that on judicial review these actions could only be viewed as falling at the extreme end of the scale of patent unreasonableness.


Conclusions


122 The BLE’s failure to adequately and fairly balance the interests of all its members in circumstances that touched upon the very core of their employment relationship constitutes, in the Board’s view, a failure to represent the membership’s legitimate interests. This failing to assume its responsibilities with integrity and competence amount to bad faith as prohibited by the Code. The union’s behaviour is tantamount to the absence of representation within the context of collective bargaining. In view of the treatment of the complainants, the respondent union is liable for the consequences that attach to the Board’s findings.


123 Based on all these considerations, the Board upholds three of the allegations:


1. the selection process for conductors and assistant conductors;

2. seniority provisions as they affect conductors and assistant conductors who qualify as locomotive engineers; and

3. the application of the Special Agreement negotiated between the UTU, VIA and CN.


124 However, the Board is not satisfied that the respondent is the only liable party. When this matter was first heard on the section 18 application to review the certification of a single bargaining unit, the employer submitted that all the employees in the merged bargaining unit would be treated equally and have similar access to available positions within the bargaining unit. It was partly on this basis that the Board ordered the representation vote and issued the new certificate.


125 The Board made it clear at the hearing in this matter that it had no intention of reopening the previous proceedings or of ordering a new representation vote. According to the uncontradicted evidence before the Board, the union did not instigate the process of material change and the agreement on crew consist reductions was a contract that was to a great extent a unilateral offer on the part of the employer. This is obvious both from the point of view of the employer’s unilateral decision to implement the crew consist initiative on April 26, 1998 and the final Crew Consist Adjustment Agreement dated July 12, 1998, in regard to the selection process, seniority provisions as they apply to the conductors and assistant conductors, and the application of the Special Agreement negotiated between the UTU, VIA and CN. The clauses are for all intent and purposes identical.


126 This outcome points to an improper collaboration between the employer and the respondent union to achieve a desired outcome for both parties at the expense of the rights of the minority and most affected group of employees. The Board considers such collaboration as unbecoming and contrary to section 94(1) and the spirit of the Code, which prohibits such practices.


127 The employer was well aware of the disagreement with CN over the flow-back rights of the former CN employees and that this was not going to be resolved soon. By proposing a bottom down seniority for the conductors and assistant conductors, it realized that it was playing into the BLE’s hands, especially since its initial position was to implement a dovetailed seniority. It was also maximizing the effects of the arbitration award in its favour concerning the wording of a selection process clause to form part of the proposed agreement. It follows that it also knew or ought to have known that, by withholding clauses that limited the advancement of the conductors and assistant conductors while providing sufficient benefits to the locomotive engineers group, the proposed Crew Consist Adjustment Agreement would likely pass a ratification vote. The respondent took its chances before the membership based on these considerations. In other words, the union knew that in the end, by putting the agreement to a majority vote, there was little likelihood it would be defeated.


128 To its credit, the employer accepted to continue to pay the employees who had elected or otherwise been selected by the employer until the matter with CN was decided. But the gamble remains. If CN succeeds in preventing the flow-back as a result of the Crew Consist Adjustment Agreement, the employees who relied on this provision, while trained, will no longer be able to compete for positions within VIA because of their low seniority rank.


129 These considerations bring us to the issue of remedy. This is a matter where it becomes impossible to set the clock back or to return the complainants to the situation in which they would have found themselves, were it not for the implementation of the Crew Consist Agreement. The Board also finds that while the union must bear the consequences of its actions, the remedy must involve both the union and the employer as they are equal players with regard to the Crew Consist Adjustment Agreement and its effects on the complainants.


130 Therefore the Board orders the following.


1. VIA and the BLE are to reopen the Crew Consist Adjustment Agreement on the following:

a. the selection process for conductors and assistant conductors;

b. seniority provisions as they affect conductors and assistant conductors who qualify as locomotive engineers;

c. the application of the Special Agreement negotiated between UTU, VIA and CN;


and any other related issues as the parties see fit with a view to providing for the interests and needs of the group of former conductors and assistant conductors. The parties are to conclude the negotiations of such amendments no later than December 15, 1999.

2. The BLE will design and hold an internal consultative process to determine these interests and needs and will hire an appropriate professional to assist the conductors and assistant conductors in this process.

3. The choice of such a professional is to be made in consultation with the conductors and assistant conductors.

4. The BLE is to bear, without the assessment of further union dues, the cost of the services of this professional.

5. The chosen professional will represent the conductors and assistant conductors for the purposes of the reopening and negotiation of the Crew Consist Adjustment Agreement, as provided above, and will share an equal voice with BLE representatives in coming to an agreement.

6. The BLE will assume, with respect to the instant proceedings, the fees of the complainants’ legal counsel on a solicitor-client basis.
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Last edited by The Tenth Man on Tue Dec 11, 2018 7:11 pm, edited 1 time in total.
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skybaron
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Re: Duty of Fair Representation: LOU (One List)

Post by skybaron »

FFS
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The Tenth Man
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Re: Duty of Fair Representation: LOU (One List)

Post by The Tenth Man »

skybaron wrote: Mon Dec 10, 2018 8:28 am From the outside looking in, I don’t see how their department list is in jeopardy, especially in regard to OTS hires. EVERYONE, knew the terms and conditions of their employment upon acceptance, so to change the rules to benefit very few is utterly useless. One list is exactly as the name implies. To say that the posts by John is here to “stir a pot” would be an understatement. Of course some OTS would want to capitalize on John’s points, but if I recall from a previous thread, NONE of Encore pilots went to Swoop when offered to them on startup. None. I would hope the OTS hires take a similar tone as Encore pilots in standing tall with their colleagues for the bigger picture. Don’t let John or the company continue to divide the pilot group.
Unity. I would hope to see ALL pilots in Canada be unified under one umbrella, but we must start one company at a time, and one backbone at a time.

Good luck WJetters.
FFS. How can you be so obtuse? This is not a matter of what people were told on being hired. And this is not a matter of changing the rules. Once the notification to collectively bargain was sent to WJ, the WJ pilots were protected from unilateral changes in working conditions by the imposed statutory freeze. That freeze was and is the only thing keeping work terms in place that originated in the uncertified era.

Once certification occurred, ALPA owed a duty of fair representation to all pilots. When you say the word "unity", I assume you mean unity among all ALPA pilots, with preference given to pilots who were already ALPA members prior to being hired at WJ. When you say unity, I assume you mean that some pilots have to give up their rights in order for the greater good, i.e. "unity" to prevail.

I can assure you that not everyone agrees with your concept of unity.

In my observations of the world, unity is a union ideological term that gets appended in a robot-like, instinctual fashion to every union communication and is generally devoid of the real-world application of the world. Hence, when the WJ MEC uses the word unity, it is talking out of both sides of its mouth as it expected the OTS pilots to take it up the ass for "unity".

The Soviet Union enforced unity on Ukrainian farmers in the 30's. They also took it up the ass.
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Re: Duty of Fair Representation: LOU (One List)

Post by The Tenth Man »

Unfortunately, by voting in ALPA, the WJ pilots ensured Encore pilots would take it up the ass, with no way to legally avoid it. The only prescription to soothe the pain is to somehow ply the patient(s) with some financial means of softening the penetration, and acclimatizing the patient to the foreign object in his/her anal canal and colon.

Or the patient will take matters into his/her own hands, remove the object, and then walk out the door.
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Re: Duty of Fair Representation: LOU (One List)

Post by The Tenth Man »

With all of this ALPA ass play ongoing and projected to persist, I think there is only one solution to our problems at WJ:
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Re: Duty of Fair Representation: LOU (One List)

Post by Alpa Male »

It's very typical for people, especially people on social media, to attack a persons character and intellect when their beliefs become threatened. You see it all the time from the alt left when they go after anyone who dares speak out against their extreme ideology - you're immediately called a bigot if you refuse to surrender to the far left doctrines and ideologies that are so rampant in our today's society, and unfortunately, our politics. I suppose AvCanada is no different...

I appreciate John posts. I mean, the content is somewhat difficult to read at times, especially for a simple farm boy like myself, but his ideas are not far-fetched. Whether people like it not, many OTS pilots are seeking legal counsel as we speak and this is the exact case law their lawyers will reference when building a case. Like one of my favourite authors and columnist, Ben Shapiro, says; "facts don't care about your feelings".

Oh, and I am not one of Johns "alter-ego's". As difficult as it may be for people to believe, many people share Johns view-points. Unlike John though, I am an ALPA supporter, but not for the "unity" agenda or any other nonsense that people spout but for reasons that people are too chicken sh!t to admit; for the reasons that any senior pilot would want an entity like ALPA calling the plays. Honestly, I'm a little surprised that John would oppose ALPA; it can be very lucrative for guys like us.
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Re: Duty of Fair Representation: LOU (One List)

Post by The Tenth Man »

Alpa Male wrote: Sat Dec 15, 2018 8:00 am It's very typical for people, especially people on social media, to attack a persons character and intellect when their beliefs become threatened. You see it all the time from the alt left when they go after anyone who dares speak out against their extreme ideology - you're immediately called a bigot if you refuse to surrender to the far left doctrines and ideologies that are so rampant in our today's society, and unfortunately, our politics. I suppose AvCanada is no different...

I appreciate John posts. I mean, the content is somewhat difficult to read at times, especially for a simple farm boy like myself, but his ideas are not far-fetched. Whether people like it not, many OTS pilots are seeking legal counsel as we speak and this is the exact case law their lawyers will reference when building a case. Like one of my favourite authors and columnist, Ben Shapiro, says; "facts don't care about your feelings".

Oh, and I am not one of Johns "alter-ego's". As difficult as it may be for people to believe, many people share Johns view-points. Unlike John though, I am an ALPA supporter, but not for the "unity" agenda or any other nonsense that people spout but for reasons that people are too chicken sh!t to admit; for the reasons that any senior pilot would want an entity like ALPA calling the plays. Honestly, I'm a little surprised that John would oppose ALPA; it can be very lucrative for guys like us.
I will consider ALPA membership once I see some honest and transparent dealings from ALPA with respect to the Encore pilots. It is from that headwater, dishonesty, that springs the majority of my antagonistic behaviour towards ALPA members,

I'm an uber fan of Ben as well, but I rely on JBP's admonition not to turn a blind eye to dishonesty.

And to make my bed.
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Re: Duty of Fair Representation: LOU (One List)

Post by Alpa Male »

Oh yes! I'm a big fan of Dr. Peterson as well, and he's a good ol' Alberta boy to boot. :wink: His latest book, 12 rules for life, is amazing. A must read!

Keep trucking, John - you have my respect.
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Re: Duty of Fair Representation: LOU (One List)

Post by sstaurus »

How much longer is this circus going to continue. Do the moderators really not care about the quality of this site whatsoever? Or are there any mods. What good is it doing the forums when someone can make account after account...
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Re: Duty of Fair Representation: LOU (One List)

Post by The Tenth Man »

I started a YYZ 5 day prg yesterday. Without revealing flight specifics, I should be airborne in 4 hours from now for a three hour flight, one hour ground stop, then airborne for another three hours. Perhaps the Alpa male could post while I am airborne. I realize that I could go through the hassle of getting someone to post for me, and I could also court termination by accessing the internet from the FD, but honestly it's not with the effort. I have no need to stroke my ego by setting up another account to do so. Not saying I wouldn't, just saying I have no need to do so.

My quiver is out of arrows with which to take down the argument that ALPA can re-create the WPDL. If someone doesn't think that the carcass of that belief is not already on the ground, lying still, with dried blood pools surrounding it while flies, maggots, and carnivores all compete for their share of the prize, well, my hat is off to them. Logic and facts do not stand a chance in the face of such belief.

Adios, amigos.

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

Post by The Tenth Man »

Further investigation on the part of your humble reporter has revealed another element to the DFR.

Historically speaking, the common law duty of fair representation arose in the USA as a result of a case involving black train conductors who were placed at the bottom of a seniority list solely because of the colour of their skin (See Vaca v. Sipes).

Canada followed with almost identical common law jurisprudence. Eventually, this common law duty of fair representation made its way into labour law legislation in most Canadian jurisdictions. In the federal realm, under the Canada Labour Code, the DFR applies to unions as regards the rights of an employee under a collective agreement. Case law has clarified the definition of “collective agreement” to mean the finalized collective agreement.

The statutory duty of fair representation, therefore, has replaced the common law duty such that a employee cannot choose to sue a union for a DFR violation in civil court if she is covered by the legislative scheme, but must seek justice with the CIRB.

Interestingly, the statutory duty has not fully extinguished the common law duty. If we look at the CLC, Section 37 days that the DFR owed an employee applies to her rights under the collective agreement. Examining the situation of a group such as WJ pilots at the current time, there is no collective agreement in place. I had suggested in an earlier post that perhaps ALPA could use the lack of the statutory duty to “sneak in” the proposed (November 2nd) LOU. It turns out this is not accurate.

Because the statutory duty is not in place during this period post-certification and pre-finalized collective agreement, the common law duty is in place and valid.

What this means is that if the OTS pilots suffered damages as a result of a violation of the DFR through an act committed prior to Kaplan’s Award, they would only have recourse to a civil court and not the CIRB. Bring a specialized body with knowledge and experience of labour matters, the CIRB is empowered with a range of remedies including, but not limited to the ability to order a change to a seniority list. The civil courts can only impose a monetary penalty on a union for a violation of the DFR.

As the clock winds down on this time without a collective agreement, the above clarification may be moot. I present it simply as a public service.

Edit: see Gendron.
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Re: Duty of Fair Representation: LOU (One List)

Post by Alpa Male »

sstaurus wrote: Sat Dec 15, 2018 12:16 pm How much longer is this circus going to continue. Do the moderators really not care about the quality of this site whatsoever? Or are there any mods. What good is it doing the forums when someone can make account after account...

This will be the first, and last time that I play this silly game; I AM NOT John, and I choose to stay anonymous. Like many WJ pilots, I've been reading much of this from the sidelines, and I felt that John was getting a bum rap. Many WJ pilots agree with John's opinions, and I'm one of them. As John has demonstrated through his actions; remaining apathetic from the sidelines is far more comfortable than expressing harsh truths, only to be ridiculed. I respect Johns courage.

The contempt expressed towards Johns opinions are unfair, and I wanted to lend him my support. That's it. Period.

If anything, your comment only validates my earlier opinion: It's very typical for people, especially people on social media, to attack a persons character and intellect when their beliefs become threatened.

Thank you!
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Last edited by Alpa Male on Tue Dec 18, 2018 12:20 pm, edited 1 time in total.
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Re: Statutory Duty of Fair Representation: LOU (One List)

Post by Alpa Male »

Now, back to the topic at hand; when can we expect ratification of the "one list" LOU?

It's been well over a month since the MEC announced this big "victory". How much time does it take to approve an LOU? Shoot, the WJPA would rubber stamp LOU's like Homer Simpson's typing bird...

Image

Hmm, maybe it's not so simple after all.
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