Statutory Duty of Fair Representation: LOU (One List)

[cloak]

mbav8r, contrary to my usual practice I say that it seems that you like practicing "do as I say, not as I do!", especially when Jazz is mentioned, or Swoop or WestJet direct-hire pilots. To prove no bias, let's change those names to unknown ones.

Let's say pilots of airline A negotiated a small 2% raise for themselves in exchange for introducing a B scale for future pilots, plus eliminating their pensions and replacing them with inferior plans. They did that under the watch of ALPA. Meanwhile pilots in airline B accepted positions that were advertised at wages that were comparable with similar airlines. Which of these two do you honestly think lowers the piloting standard more?

If you have something of value to contribute to the discussion, go ahead, otherwise attacking others doesn't necessarily help you. Fare well.


SPR, perhaps some individuals may have been lent back to Encore for operational reasons?

[mbav8r]

mbav8r, contrary to my usual practice I say that it seems that you like practicing "do as I say, not as I do!", especially when Jazz is mentioned, or Swoop or WestJet direct-hire pilots. To prove no bias, let's change those names to unknown ones.

Let's say pilots of airline A negotiated a small 2% raise for themselves in exchange for introducing a B scale for future pilots, plus eliminating their pensions and replacing them with inferior plans. They did that under the watch of ALPA. Meanwhile pilots in airline B accepted positions that were advertised at wages that were comparable with similar airlines. Which of these two do you honestly think lowers the piloting standard more?

If you have something of value to contribute to the discussion, go ahead, otherwise attacking others doesn't necessarily help you. Fare well.


SPR, perhaps some individuals may have been lent back to Encore for operational reasons?

Have a look back at mine and your previous posts, someone’s been attacking alright, you’ve contributed absolutely nothing but criticism against others, deflected questions directed at you and simply put are likely just another one of John’s personality’s.
However, I am done with you and John, I wish WJ pilots good luck navigating this mess their in and hope common sense prevails.

One side note, one of John’s supporters made a good point, no one list Encore will have to raise the bar to get pilots, well probably not but one could dream I suppose. The aviation worlds seems filled with tbaylxs

[The Tenth Man]

Whew! That was work! I just finished 70 hours of OT in the last 14 days, for a cool $22,680 in 11 days of work. That's not Delta Airlines money, but I'll take it. With the coming contract, it sounds like we're being told to reduce our expectations.

So, I have today off. Back to being a content creator.

Regarding Bearskin/Wasaya/Jazz: that LOU can in no way be compared to the One List. For it to do so, it would have had to allow Bearskin/Wasaya pilots to jump ahead of existing (as of the date of the LOU) Jazz pilots on the seniority list (which is what the substitute One List would require in the upcoming CBA). That didn't happen, so the example at Jazz is not applicable.

With that matter disposed of, we are back left with no examples where ALPA has a One List style agreement in place.

[The Tenth Man]

I don't think I need to say much about the following case for you to recognize the differences between how ACPA treated the seniority concerns of former CAI pilots ("Blue" pilots may argue otherwise...) with how ALPA has investigated and discussed and treated the seniority concerns of WJ OTS pilots hired since mid 2014. I have highlighted what I think are some important sections. While you are reading, ask yourself what the MEC has done to ensure the rights of OTS pilots are protected or dealt with fairly.

It is somewhat ironic, given the current situation, that in the following case, it is ALPA who is complaining about a violation of the DFR.

ALPA v. ACPA, 2006

All underscoring and bold is mine.

C - Duty of Fair Representation Complaint - File No. 25435-C


1 - Position of the Parties



62 The complainants submit that ACPA has violated the duty of fair representation because it “abused its powers as bargaining agent in exclusive support of the seniority interests of its so-called ‘original’ Air Canada pilot majority constituency - to the exclusive detriment of the former Canadian Airlines pilot minority.”

63 The complainants state that ACPA has expressly acknowledged that it has acted due to pressure brought to bear by a seniority-based protest movement which consists of two large factions of pilots advocating the use of their voting power to bring about seniority change. The complainants submit that ACPA has induced or coerced Air Canada into cooperating with ACPA’s seniority objectives. According to the complainants, Air Canada agreed to cooperate with ACPA in establishing the Teplitsky mediation process in return for ACPA’s agreement to send the dispute regarding the acquisition by Air Canada of the B777 and B787 aircraft to arbitration. ALPA argues that the two Teplitsky exercises were directly linked. According to ALPA, the aircraft acquisition deal the company wanted was delivered, without change and without pilot ratification, by the arbitration award and the changes ACPA wanted made to the Keller seniority list were included in the mediation recommendations. Furthermore, the complainants submit that the appearance of Mr. Teplitsky’s neutrality was compromised because he took on both the seniority mediation and the aircraft arbitration assignments.

64 The complainants argue that the Board’s decision in George Cairns et al., [2000] CIRB no. 70, prevents collective bargaining from reshuffling seniority rights, to the detriment of a minority group of employees, after the integration of bargaining rights. They rely on the following passage from George Cairns et al., supra:

"[64] ... 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…"

65 ACPA, however, argues that the process adopted to develop negotiated changes to the seniority list is free of arbitrariness, discrimination and bad faith. ACPA states that it and Air Canada took careful steps to ensure that the seniority rights of all affected pilots were fairly considered. For example, they retained an experienced mediator/arbitrator with extensive understanding of the bargaining relationships at Air Canada and they invited ALPA to participate in the seniority mediation, without prejudice to its right to challenge the process and any seniority change resulting from it.

66 ACPA submits that no changes have been made to the seniority list. It states that ACPA and Air Canada agreed “that before Mr. Teplitsky’s recommendations are incorporated into the collective agreement, they will seek confirmation that such implementation would not breach the Canada Labour Code.” In any event, according to ACPA, Mr. Teplitsky recommended that the parties maintain the seniority list as constructed by Mr. Keller and only make two adjustments to it. Lastly, ACPA argues that the Board’s jurisprudence states that existing seniority rights can be changed through collective bargaining.

67 Air Canada takes no position on the merits of this complaint, other than on the allegations concerning Air Canada’s own conduct. Air Canada states that it has always maintained a position of neutrality in the seniority integration dispute and its sole interest is labour peace in the pilot bargaining unit.

68 Air Canada points out that the section 37 duty of fair representation obligation only applies to unions. In any event, it denies that a process resulting in a mediator’s report and recommendations on ways to ease tensions concerning the pilot seniority list can make it liable to the complainants.


2 - Analysis and Decision


69 ACPA is certified to represent all pilots, including the former Canadian pilot minority, in the pilot bargaining unit at Air Canada. The complainants submit that ACPA’s involvement in the Teplitsky exercise deprives the former Canadian pilots of their settled seniority rights and constitutes a violation of the section 37 duty of fair representation.

70 The Board does not believe that ACPA has contravened section 37 of the Code.

71 Section 37 reads as follows:


"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."


72 The duty of fair representation arises out of the exclusive power given to the bargaining agent to speak on behalf of all employees in the bargaining unit. It has been the subject of countless Board decisions. In Canadian Merchant Service Guild v. Gagnon et al., 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509, the Supreme Court set out the following principles that relate to a union’s duty of fair representation:


"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)


73 The Board’s jurisdiction to review a union’s actions is very narrowly focussed. 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.

74 The complainants state that the former “Canadian pilots now have acquired legal rights in the form of a legal entitlement to a settled sequenced seniority list.” The Board agrees that the integrated seniority list sets the post-merger pilot seniority rankings and that it must be used to determine seniority-related rights for each pilot in the bargaining unit. The question that must be answered in this complaint, however, is whether those rights have been interfered with in any tangible way. In other words, have any of the former Canadian pilots’ seniority rankings been changed as a result of the Teplitsky exercise?

75 While ACPA participated in a process directed towards changing the seniority list, the fact remains that no changes have been made to the pilots’ seniority rankings. Not a single former Canadian pilot’s order on the integrated seniority list has been affected by the Teplitsky exercise. Furthermore, it was clear throughout the exercise that before proceeding with the implementation, ACPA and Air Canada would be asking the Board to determine whether adoption of the recommended changes would violate the Code.

76 The present case and the George Cairns et al., supra, case, relied on by ALPA, have some similarities. In a general way, both deal with situations involving merged bargaining units, seniority integration and minority rights. However, the two cases deal with significantly different fact situations. In George Cairns et al., supra, the Board found that the union had breached its statutory duty of fair representation in negotiating a Crew Consist Adjustment Agreement, which was put to the membership for a ratification vote. Following ratification, the Agreement formed part of the collective agreement. Three items of the Agreement were found to have treated a minority of employees in the bargaining unit unfairly.

77 In the present case, we are dealing only with recommendations from a mediator. They were not put to a ratification vote. They did not become part of the collective agreement. Most importantly, they did not change the seniority rights of any members of the bargaining unit.

78 For these reasons, ALPA’s section 37 complaint is dismissed.

[Alpa Male]

Here's another thought that occurred to me: Mr Kaplan ruled that as of Dec 1, all Swoop pilots will hold positions based on seniority. I'm pretty sure there are some captains at Swoop who moved there directly from Encore, meaning that they joined WestJet after the Swoop OTS pilots. And yet, they have the seniority to bump the OTS captains out of their positions. Doesn't that mean that Mr Kaplan considers seniority at Encore to be equivalent to seniority at WestJet?

Hmmmmm. You might want to reread those interim orders. In short, Kaplans first order was to offer Captain bypass positions to "WESTJET PILOTS" while OTS Swoop pilots maintain rank and pay. Nowhere does it state Encore pilots. Kaplans second interim order was to place OTS Swoop pilots in a position corresponding with their spot on the Westjet Pilot Seniority List, with pay protection. Kaplan could not, would not and did rule on behalf of Encore pilots. He can't; Kaplan is arbitrating an agreement between Westjet and the Westjet pilots union, not the Encore pilot union. Applying considerations on behalf of Encore pilots could compromise the process and put Kaplan at risk of a judicial review.

Let us be clear; it was WJ that promoted Encore pilots to Swoop captain status, NOT Kaplan. WJ and ALPA made a mistake in this regard. They honored a flawed seniority list that, created from the "good intentions" of a flawed representational structure. As my colleague, Mr. Swallow has stated - if the current "one list" is not amended to reflect the date of hire at WJ only, then a DFR claim will be forthcoming. And like John, I too encourage OTS pilots to press this issue; it's their right.

The layers are many and the waters muddy...

[The Tenth Man]

In a similar case, former CAI pilots filed another DFR complaint against ACPA and Air Canada in 2009. They were unsuccessful, but the following paragraph is illustrative of the efforts one might expect of a union to fairly represent all members. Once again, it is necessary to ask yourself what the WJ MEC has done to consider the rights of OTS pilots in the proposed LOU announced November 2, 2018, in a manner that is not arbitrary.

ALPA has a statutory duty to consider the best interests of the bargaining unit as a whole, which is not the same as considering the best interests of a majority of the bargaining unit.

McInnis et al. v. ACPA and Air Canada

9 ACPA argues that it is discharging its statutory duty to represent all of its members fairly by addressing a labour relations issue that affects a substantial number of its members and that has created a fractured bargaining unit. ACPA created an ad hoc seniority sub‑committee to investigate whether the “unfairness” attributed to the application of the adjustments was real or merely perceived, to report its findings to the Master Executive Committee (MEC) and, if any real unfairness was found, to submit recommendations as to how that unfairness should be addressed. ACPA submits that in conducting this investigation, ACPA and its seniority sub‑committee had the right to consult and retain experts and advisors to provide the best possible advice, and that the former Chairperson of the Board was chosen because of his expertise. Mr. Lordon’s mandate was to consider the nature of the complaints, to attempt to mediate their resolution and to make recommendations to the sub‑committee, which would then determine what recommendation should be made to the MEC. ACPA states that the input of the former CAIL pilots was repeatedly sought throughout the process.

[Alpa Male]

Whew! That was work! I just finished 70 hours of OT in the last 14 days, for a cool $22,680 in 11 days of work. That's not Delta Airlines money, but I'll take it. With the coming contract, it sounds like we're being told to reduce our expectations.

So, I have today off. Back to being a content creator.

Regarding Bearskin/Wasaya/Jazz: that LOU can in no way be compared to the One List. For it to do so, it would have had to allow Bearskin/Wasaya pilots to jump ahead of existing (as of the date of the LOU) Jazz pilots on the seniority list (which is what the substitute One List would require in the upcoming CBA). That didn't happen, so the example at Jazz is not applicable.

With that matter disposed of, we are back left with no examples where ALPA has a One List style agreement in place.

Nice, John! That's some good bank - nicely done!

That comment also caught the eye - "remain realistic in their expectations." Yeah, I'll remain realistic; I will not hold reserve, I will not work more than 12 days and so and so forth. Like a recent Encore flow pilot told me, "I help build Encore, so I expect WJ to accommodate for that sacrifice." Well, John, like you, I remember the old 200 days and we "built" mainline. I think we have some "accommodations" coming our way.

You should sign a card and join the "dark side," my friend. This ALPA thing is sure to exceed "expectations" for guys like you and me.

[The Tenth Man]

I know hindsight is 20/20, but 20/20 vision wasn't needed to see this issue steam rolling towards WJ and WJE pilots. From the time of certification onwards, the MEC should have had as one their priorities, with as much stature as Swoop and as negotiating the CBA, the issue of how to deal with the One List. I don't think much could have been done, given the handcuffs imposed by ALPA policy and of Canadian Labour Law, but politically, at least the two bargaining unit members could have seen, in a transparent manner, with regular reporting and updates, that their representatives were dealing with this issue in a professional and responsible manner.

What do we have instead? Nothing for a year, then an 11th hour memo, on the cusp of the final stages of CBA negotiation, coming ironically in the 11th month, with only vague promises of the LOU meeting constitutional and legal standards and an expectation that the pacified pilot groups should just sit back and let the pros deal with it.

I will deal with the issue of the incoming Canada Board President in this matter and his suitability for the position in a separate thread in which I will be very careful not to be libelous, but seriously examine his involvement in an effort to defeat ALPA policy, and ignore the rights of OTS pilots.

[The Tenth Man]

Nice, John! That's some good bank - nicely done!

That comment also caught the eye - "remain realistic in their expectations." Yeah, I'll remain realistic; I will not hold reserve, I will not work more than 12 days and so and so forth. Like a recent Encore flow pilot told me, "I help build Encore, so I expect WJ to accommodate for that sacrifice." Well, John, like you, I remember the old 200 days and we "built" mainline. I think we have some "accommodations" coming our way.

You should sign a card and join the "dark side," my friend. This ALPA thing is sure to exceed "expectations" for guys like you and me.

I will consider joining ALPA, after a CBA is in place and once the matter of the One List is addressed fully and transparently. I won't be party to any organization attempting to misdirect blame or obfuscate the issues.

I am realistic though. I do sincerely believe that my behaviour here on this forum might make me ineligible for membership. At the very least, I would be expected to meet the standards expected of an ALPA member going forward, and I'm not sure that is my role on this planet.

I really love my job, and I really am appreciative and thankful to my employer. I'm content staying in that happy place.

Cheers

[cloak]

Here's another thought that occurred to me: Mr Kaplan ruled that as of Dec 1, all Swoop pilots will hold positions based on seniority. I'm pretty sure there are some captains at Swoop who moved there directly from Encore, meaning that they joined WestJet after the Swoop OTS pilots. And yet, they have the seniority to bump the OTS captains out of their positions. Doesn't that mean that Mr Kaplan considers seniority at Encore to be equivalent to seniority at WestJet?

Hmmmmm. You might want to reread those interim orders. In short, Kaplans first order was to offer Captain bypass positions to "WESTJET PILOTS" while OTS Swoop pilots maintain rank and pay. Nowhere does it state Encore pilots. Kaplans second interim order was to place OTS Swoop pilots in a position corresponding with their spot on the Westjet Pilot Seniority List, with pay protection. Kaplan could not, would not and did rule on behalf of Encore pilots. He can't; Kaplan is arbitrating an agreement between Westjet and the Westjet pilots union, not the Encore pilot union. Applying considerations on behalf of Encore pilots could compromise the process and put Kaplan at risk of a judicial review.

Let us be clear; it was WJ that promoted Encore pilots to Swoop captain status, NOT Kaplan. WJ and ALPA made a mistake in this regard. They honored a flawed seniority list that, created from the "good intentions" of a flawed representational structure. As my colleague, Mr. Swallow has stated - if the current "one list" is not amended to reflect the date of hire at WJ only, then a DFR claim will be forthcoming. And like John, I too encourage OTS pilots to press this issue; it's their right.

Very good observations.

It's very simple; read the top of Kaplan's interim rulings, it's between WestJet, Swoop, and WestJet pilots represented by ALPA MEC.
It does not include Encore because Encore has its own MEC and engaged in its own negotiations. The case of Encore is NOT before Kaplan.

The company decided on its volition to allow Encore pilots to also flow to open Swoop FO positions, instead of hiring from outside. To be fair, it always did intend to do that, but was not able to due to ALPA ban and restrictions.

However, if there were individuals that made it to Swoop left seat and bumped existing Swoop captains and were NOT already on WestJet's list, it would be a breach of Kaplan's order and he would not be amused to discover that.

It will likely be a case of few individuals that had flowed to WestJet, but based on their previous experience and contributions, were lent back to Encore for operational reasons. That would be fair.

Otherwise to engage in an emotional personal vendetta against a group of its own current members will not be wise for ALPA MEC.

[The Tenth Man]

From a CIRB decision involving former Canadian Airlines employees and their merged seniority list with Air Canada employees. I know that the proposed LOU between ALPA and WJ is not a merged seniority list (so I'm told), but the CIRB quoted the following definition of "arbitrariness" in the case. I suggest you consider the WJ MEC's conduct towards the rights of OTS pilots in fashioning the LOU and consider whether their actions were arbitrary. For instance, has the MEC ever, meaning at all, communicated a position or opinion regarding the rights of OTS pilots hired after mid-2014?

Ever?

22 The concept of arbitrariness may be summarized as follows:


8.376. Arbitrary conduct has been described as a failure to direct one’s mind to the merits of the matter, or to inquire into or to act on available evidence, or to conduct any meaningful investigation to obtain the data to justify a decision; it has also been described as acting on the basis of irrelevant factors or principles, or displaying an attitude which is indifferent and summary, or capricious and non-caring or perfunctory. Flagrant errors consistent with a non-caring attitude may also be arbitrary, but not honest mistakes, errors of judgment or even negligence. ...



(Jeffrey Sack et al., Ontario Labour Relations Board Law and Practice, 3rd ed., Vol. 2 (Markham: Butterworths, 1997), page 8.208)

[The Tenth Man]

From a 2011 CIRB decision regarding the "fly past 60" issue at Air Canada, the CIRB described ACPA's actions in considering the the situation regarding the over 60 pilots as the following:

49 In the instant case, the union took the complainants’ claims very seriously. It conducted surveys of its membership, commissioned studies on the issue, considered the history of the mandatory retirement provision in the airline context, the existing state of the law, and the interests of the membership as a whole. The union came to a considered decision that it could not support the complainants’ case. The Board is unable to find that the union’s refusal to file a grievance on behalf of the complainants was arbitrary, discriminatory or in bad faith and therefore dismisses this portion of the complaint.

Although the above passage refers to a grievance, what we are considering at WJ is whether the seniority rights of OTS pilots, who now have a negotiated right to a position on the WPSL by Date of Hire (per Kaplan, June Order), with all the attendant seniority rights (to be awarded by Kaplan by Decemver 21, 2018), will be negatively affected by the proposed LOU, if it is accepted by WJ. There was apparently a survey done 18 months ago regarding the One List, but I am unsure of how the issue was presented in the survey, and apparently no one knows (excepted MEC/NC) the results of the survey.

Other than the survey, we have the Canada Board Presidency campaign material of Capt TP, who said, in his role of Vice_Chairman of the WJ MEC:

"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 one seniority list concept and the unification of our pilot groups starting with eventually creating a single MEC structure."

The above passage seems innocuous enough, if all that is in play is the contemplation of an eventual merger of the two pilot seniority lists, subject to ALPA Merger Policy. But Capt TP says he's been working with WJE MEC to implement the "one seniority list" concept. Well, is it one seniority list, subject to ALPA Merger Policy rules, or is it a concept of such a list? I presume that Capt TP did a poll of the WJE MEC to see if they were in favour of or against causing injury to the seniority rights of the OTS pilots? Let me guess, 100% in favour?

ALPA_Canada_Board_Tim_Perry_p2_JPEG.jpg (538.75 KiB) Viewed 2335 times

Additionally, we have the testimony of the MEC, presumably Capt RM in his role as Chairman of the WJ MEC, who said, in the November 2nd, 2018 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.   The two MECs will propose this formal agreement in the form of a Letter of Understanding (LOU) between both pilot groups to WestJet management. They in turn will also have to accept the LOU and be a signatory. The final step will be to hold a pilot vote at each group before it will be implemented.   While 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.

Let me guess, they did a survey of the WJE reps in the room in the following photo (from the November meetings in Herndon) and they voted 100% in favour of causing injury to the seniority rights of the OTS pilots.

Does anyone ever bother to ask a turkey how it feels about the Christmas dinner menu?

ALPA_MEC_WJ_WJE_PHOTO_NOV_2018.jpg (348.5 KiB) Viewed 2335 times

And what of the other WJ LEC members in the above photo? Did they happen to speak up about the rights of the OTS pilots who they had a duty to represent? Ever? Or at all?

[cloak]

Based on the discussion so far and the points raised, it is clear that being put on WestJet seniority list was used to entice new recruits, as the wages and working conditions at Encore were below industry standard. This is no secret as WestJet itself had been saying that publicly. To some degree then, this had put the task of recruitment on WestJet pilots, as opposed to the company, or perhaps some pilots felt badly to acquiescing to Encore conditions and saw this as a compensation of sort. Either way, to be fair, recruiting new staff is a job for the company.

Finding a "fair" solution to this let's say "less than ideal situation", requires fairness, compassion, but also creativity and ingenuity. The solution is likely NOT repeating the flawed systems and ban-aid solutions of other corporations. It requires a new way of thinking and also for the company to be a partner in this situation and correct it by giving from its own pocket, as opposed to the pilots', i.e. seniority.

In the current environment of the industry, to grant pilots outside a company not on the property yet, a reserved spot on the list is clearly not fair to the pilots that ARE on the property and contributing to the development of the plans and success of the said company. At the same time, while companies may feel no responsibility towards pilots at other companies, they should recognize the contributions of pilots in sister companies. True that these individuals get included in the success of the corporation through profit sharing, stock purchase matching and such, it still behooves the mother corporation to retain talent in its own group and reward loyalty in more ways.

Considering the flaws of the current "order", a better solution perhaps exists in putting it on its head! Remember new way of thinking is needed. This would mean that when pilots flow to the mainline, they retain their YOS in whatever position and equipment they land. While their seniority and the rights attached to it, such as upgrades and bidding privileges are based on date of hire at the mainline. This way, the pilots are rewarded for their service and their loyalty from the coffers of the company in pay, YOS, vacation, etc, and not the coffers of the pilots meaning their seniority and upgrades. This also makes the greatest operational sense since pilots on property would have the higher experience and readiness for upgrades.

Going forward, this could be a model for the industry in Canada, as it is being used apparently to varying degrees in other countries including the U.S. In that pilots moving from one company to another for whatever reason, at least maintain their YOS, even if they lose their position, which to some extent maintains their way of life. This is more worthy of a profession that ranks among the highly skilled workforce. It creates a proper "career" for pilots, as opposed to being equal to non-skilled entry level labourers.

A pilot's career should not be like joining a line-up at a grocery store; some go faster, some slower, and some close when it's your turn! While it doesn't create one single line, it is a hybrid system that recognizes loyalty and contributions to "a" company, but also contributions to the industry as a whole. If unions such as ALPA truly want to be promoters of piloting profession and unity among ALL pilots, they must adopt such creative ways.

[Diadem]

I'm posting the following on every thread in which John Swallow has raised the issue of seniority at ALPA, because it's pretty devastating to his "case":
I don't know why I didn't think to actually do it earlier, but I finally decided to stop taking Mr Swallow at his word that the references he was posting were correct, and actually look up the documents he's claiming make the One List "impossible". I thought it was strange that he was contacting the ALPA archivist and getting documents from 1956, but it turns out the reason he had to do that is because those documents are archived and no longer relevant. As an ALPA member, I those docs at my fingertips, whereas Mr Swallow wouldn't be privy to such info. Perhaps he hoped that if he bombarded us with screenshots, that we wouldn't take the time to actually look it up.
Mr Swallow asserts that the ALPA constitution of 1956 and Merger Policy require that all seniority be based on date-of-hire, and that those are the only sources of guidance that would be relevant to the current negotiations. It turns out that the ALPA constitution has been updated at least eleven times since 1956, with the most recent version dated Oct 18, 2018. The constitution itself doesn't actually have any guidance regarding seniority lists of any kind, so I looked at the Merger Policy, since Mr Swallow thinks it's the ultimate guide to forming a seniority list. This document was last updated Apr 30, 2009, and now states the following:
4. Seniority List Integration - Negotiations
(c) In cases where one or more parties to the merger has flight deck crew members with grandfather or similar special seniority rights that are limited as to job classification or status within the flight deck crew, the merger representatives shall commence efforts to arrive at a mutually satisfactory method of integration and compilation of such separate special seniority lists as may be necessary and appropriate to preserve and protect such rights in addition to the flight deck crew seniority list.
In addition, ALPA released an information sheet to explain this change in layman's terms: ALPA merger policy calls for the fair and equitable integration of seniority lists. Under the new policy, merger representatives are encouraged to consider themselves primarily as negotiators who should make a strong and focused effort to resolve seniority integration issues, with mediation and final binding arbitration mandated on unresolved issues. As the Committee evaluated the old policy, it became clear that the factors for seniority list integration (SLI) had become a source of controversy. The new policy states that the factors that must be considered in constructing a fair and equitable integrated seniority list, in no particular order and with no particular weight, now include but are not limited to career expectations, longevity, and status and category. The new merger policy mandates that the merger representatives, mediators, and arbitrators must consider these factors when constructing a seniority list; however, they are also free to consider other factors as they deem appropriate."
ALPA addressed Mr Swallow's concerns a decade ago. The constitution he quotes is 52 years out of date. The LEC reps, MEC reps, and ALPA president are not violating any bylaws. I'm not sure Mr Swallow will know what this means, but the policies he's quoting have been superceded. The OTS pilots have no grounds for a complaint to the CIRB.
END OF STORY. CASE CLOSED.

[The Tenth Man]

...The constitution itself doesn't actually have any guidance regarding seniority lists of any kind...

Correct. However, the Constitution of ALPA directs the President of ALPA (and the rest of the officers who take the Oath), as well as the Chairman of the MEC to "comply with and advance" the policies of the Board of Directors...

One of the BOD policies they must comply with is seniority list construction based on Date of Hire. If you check Kaplan's order of June 2, 2018, you will see that people are added to the WestJet Pilot Seniority List by their Date of Hire at WestJet. ALPA is complying with the policy at WJ.

John

[Diadem]

One of the BOD policies they must comply with is seniority list construction based on Date of Hire. If you check Kaplan's order of June 2, 2018, you will see that people are added to the WestJet Pilot Seniority List by their Date of Hire at WestJet. ALPA is complying with the policy at WJ.

John

But according to you, no one has seen that list, so what are you basing that on?

[The Tenth Man]

One of the BOD policies they must comply with is seniority list construction based on Date of Hire. If you check Kaplan's order of June 2, 2018, you will see that people are added to the WestJet Pilot Seniority List by their Date of Hire at WestJet. ALPA is complying with the policy at WJ.

John

But according to you, no one has seen that list, so what are you basing that on?

Oh for Christ's sake, I have other issues I want to tackle today regarding the one list and they are going to have to take priority over you asking me to repeat myself. If I have time later I will address your question. Someone else can feel free to jump in on why they think the WPSL is by DOH with no credit for WJE service time.

[cloak]

The OTS pilots have no grounds for a complaint to the CIRB.
END OF STORY. CASE CLOSED.

That's something you hear in North Korea!
In reality though, not only that statement does not represent a democratic process, it is not factually or legally correct either.
The "fiduciary duty" of ALPA to ALL its members is to represent them equally and fairly and to do them "no harm".

Members of WestJet bargaining unit, as was mutually agreed between company and union in June consists of WestJet pilots and Swoop pilots including direct-hire pilots. The MEC has a "fiduciary duty" to ALL of THEM, to represent them fairly and equally and TO DO THEM NO HARM. It cannot even use the will of the "majority" to do harm to a "minority". If this duty is breached, the member(s) is (are) entitled to legal action against the union. WestJet MEC has no such "duty" to Encore pilots; that duty rests upon its own MEC. So above statement is factually and legally incorrect.

[The Tenth Man]

Consider if you will the point of view of an OTS pilot who joined WJ circa January 2017, placing her well below numerous WJE pilots on the WPDL. Let us assume that this OTS pilot was a former executive member of her previous airline's ALPA MEC, and she was very familiar with ALPA policies. After examining the WPDL policy, a policy that all WJE pilots enjoyed as a result of individual employment contracts, and knowing that after certification every element of pilot working conditions would be negotiated from a base level of zero, this knowledgeable pilot voted in favour of certification, knowing that ALPA was constitutionally bound to follow its policies.

I believe that this OTS pilot had a reasonable expectation that ALPA would follow its established policies. I believe she had a right to believe that the first ever seniority list for WJ pilots (WPSL) would not contain any pilots still at WJE, and that any pilots on the WPSL would be ordered by WJ DOH, with no credit for WJE service, and that as a result, she would move "x" numbers closer to upgrade than under the WPDL. I believe she had that a right to expect all of these things by voting YES to the certification of ALPA. For her to subsequently discover that ALPA (her MEC) would instead negotiate an agreement with another company's MEC (WJE) that would by necessity injure her seniority rights and her expectations of upgrade, and fail to consider her interests in the proposed LOU, would rightfully upset her. She would rightfully express her concerns to her LEC representatives, and failing a satisfactory response, she would be within her rights to contact a labour lawyer to assess her options, which would include, among other options, the filing of an Unfair Labour Practice complaint against ALPA involving a violation of the DFR .

[The Tenth Man]

Here is the actual wording of Section 37 of the Canada Labour Code (CLC):

Duty of fair representation

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.

I will be spending some time over the next few days examining the phrase "shall not act in a manner that is...arbitrary, ...".

I am not a lawyer. I have read that unions are accorded wide latitude in the conduct of their activities. The government does not sit in a perch overlooking every facet of a union's activity. The statutory duty they impose upon the union's behaviour is only that they act fairly in their representation of all union members. I have read somewhere that approximately 3% of DFR cases before the CIRB are successful for the claimants. The bar is set purposely very high for a finding that a union behaved unfairly.

Point 1) I am curious whether the prohibition against a union to not "act in a manner..." means simply that. Is it a requirement that a union actually achieve signed LOU with a company for the DFR to be violated? Or, is the fact that a union has shown its intentions to do so (violate the DFR) by signing an agreement with another bargaining agent representative (the WJE MEC) exressing its intention to violate the DFR sufficient evidence for an OTS pilot to proceed at this time to the CIRB?

Point 2) Additionally, does the CIRB require that a full "collective agreement", as referred to in Section 37, be in place for a DFR complaint to be filed? In our current situtation, arbitration is taking place regarding only contentious items, with agreed upon items not being subject to ratification by employee vote. Does the fact that ALPA and the Company have already agreed to rights of OTS pilots to a negotiated position on the WPSL (per Kaplan) mean that the precedent condition, that of "their rights under the collective agreement that is applicable to them", has been met?

I do not know the answer to the above questions. If points 1) and 2) have been met, then the clock on the 90 day limitation period for filing a DFR claim has now been running (I think) for 37 days, leaving 53 days remaining within which to file a DFR claim, putting the deadline on or about February 1st, 2019. This should be sufficient time to see the CBA, and to hear further about ALPA's intentions with respect to the proposed LOU.

I should think that if the clock has started running, and the CIRB would entertain a DFR complaint at this time (not a given - I am not a lawyer), then a successful (not a given - I am not a lawyer) DFR claim by a class of OTS pilots could ask (not a given - I am not a lawyer) for the CIRB to direct ALPA to stop all negotiations towards the proposed LOU. All of this assumes that the proposed LOU intends to replicate the intent of the WPDL retroactively to existing pilots on the WPSL, which I think we can agree, would injure the seniority rights of OTS pilots hired since mid-2014.