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Re: Herndon Pact: Tort of Unlawful Conduct Conspiracy?

Post by The Tenth Man » Thu Dec 13, 2018 8:02 am

Not being a lawyer, it is a confusing issue to untangle. Was ALPA's conduct (through its officers) directed at the OTS pilots? Without a doubt, ALPA was aware of the issue of the One List, and its consequences upon seniority for the various parties.

By way of example, is there a difference between:

(a) putting one pilot one position lower on a seniority list, from spot 722 to spot 721, and

(b) moving one pilot one position higher on a seniority list, from spot 721 to spot 722?

If the MEC were to direct its conduct to situation (a), how is that in any way different from situation (b)? Put another way, is directing its conduct to (a) simply another way of expressing or carrying out or directing its conduct to (b)?

Or is it necessary that there be discussion between the alleged members of the conspiracy regarding the conduct being specifically directed toward the OTS pilots. I suppose only the production of documents or the examination for discovery of those present for the Herndon Pact discussions would reveal whether there was a "meeting of the minds" to injure the OTS pilots.

If evidence showed there was absolutely zero discussion of the OTS pilots, and that all of the discussion focused simply on the Encore pilots, then could the conduct have been directed towards the OTS pilots, even if all present knew, or even if none present knew it might be a corollary of their agreement to formulate the LOU?

I suppose if the record did support a contention that no discussion was directed towards the disposition of the OTS pilots, then this might be dispositive of the conspiracy issue with a result that the tort claim fails. Alternatively, proof that no discussion took place reagrding the OTS pilots would lend support to the fact that ALPA failed in its duty to consider the impact of their plans on the OTS pilots, and therefore failed in its Duty to Fairly Represent the OTS pilots.

Like Alpa Male said, a lwayer would throw a bunch of things at the wall and see what stuck.
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Re: Herndon Pact: Tort of Unlawful Conduct Conspiracy?

Post by Lightchop » Thu Dec 13, 2018 10:49 am

If you're so passionate about what you believe in, your "talents" (if we want to call it that) would be better served as an LEC representative, no? That is if you get voted in based on your platform. Remember LEC reps are supposed to bring the concerns of their members to the MEC. And I'd wager a lot of your nonsensical mumbojumbo isn't really a concern of anyone else at WJ.
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Re: Herndon Pact: Tort of Unlawful Conduct Conspiracy?

Post by The Tenth Man » Thu Dec 13, 2018 2:02 pm

Some more colour unlawful conspiracy tort is found in Golden Capital Securities. v Rempel et al., from a 2004 BC Court of Appeal decision.

I reproduce an unabridged section of the ruling, but the paragraphs I think are instructive are [57],and [58].
[45] The starting point for the law of civil conspiracy is the definition in Mulcahy v. R. (1868), L.R. 3 H.L. 306 at 307, quoted by Lord Wright in the Crofter case at 461:

"A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means."

[46] It has long been recognized that liability in conspiracy requires proof by compelling evidence. In Sweeney v. Coote, [1907] A.C. 221 at 222, the Lord Chancellor said:

"In [an action for conspiracy] it is necessary for the plaintiff to prove a design, common to the defendant and to others, to damage the plaintiff, without just cause or excuse. That, at all events, it is necessary to prove. Now, a conclusion of that kind is not to be arrived at by a light conjecture; it must be plainly established. It may, like other conclusions, be established by inference from proven facts, but the point is not whether you can draw that particular inference, but whether the facts are such that they cannot fairly admit of any other inference being drawn from them."

[47] Thus, to prove a case in conspiracy, it is first necessary to plainly establish, directly or by inference, that there was an agreement between the defendant and one or more others. That does not mean an agreement in the contractual sense. A defendant must be shown to have agreed in the sense of having combined or conspired with one or more others to carry out a common design or a means of achieving a common objective, which is then implemented with resulting injury to the plaintiff.

[48] Where the means are unlawful, there must also be proof that the unlawful conduct was directed toward the plaintiff and that the likelihood of injury to the plaintiff was or should have been known to the defendant.

[49] What becomes important for the purposes of this appeal is the meaning to be given to the "likelihood of injury". What knowledge must the defendants have had, or should they have had, about the potential for injury to the plaintiff?

[50] The source of the expression "that injury to the plaintiff is likely" is Estey J.'s discussion of the elements of the tort of conspiracy in LaFarge. At pages 471-72, he said:

"Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim against them in combination as the tort of conspiracy if:

(1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or,

(2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.

In situation (2) it is not necessary that the predominant purpose of the defendants' conduct be to cause injury to the plaintiff but, in the prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff."


[51] Significantly, Estey J. used both the phrase "is likely to and does result" and the phrase "would ensue" in this passage.

[52] The litigation in LaFarge arose out of two cement manufacturers unlawfully conspiring to lessen or eliminate competition. The plaintiff was a supplier of lightweight aggregate used in the manufacture of cement. At first the supplier benefited from the unlawful conduct by contracting with the two manufacturers to supply its product, but it then lost its business after the contracts expired and the manufacturers began to use a different product. Because of their unlawful action, the supplier was unable to develop a new market. Given that the manufacturers had not made deliberate plans to drive the plaintiff out of business, Estey J. had to consider whether liability in conspiracy arises where the defendants' predominant purpose was not to injure the plaintiff but instead to eliminate their competition. He concluded that it could where there was a conspiracy to commit an unlawful act, but he found that the supplier's case failed, nonetheless, because the manufacturers' unlawful action had not been directed towards the supplier.

[53] In rejecting the notion that the intention to injure need not be considered once it is established that the agreed upon acts which caused the damage were unlawful, at 469-71, Estey J. observed that the presence of intention to injure appears to be common to all the Canadian cases in which the tort of conspiracy by unlawful means has been applied. He concluded that liability for a conspiracy to act unlawfully requires that at least a constructive intent to injure the plaintiff be proven.

[54] Estey J. considered a constructive intent would exist where those conspiring knew or should have known that "injury to the plaintiff is likely" but, as emphasized above, he also used the phrase "would ensue". In Claiborne, at 79, the Ontario Court of Appeal applied the latter phrase in holding a bank liable in conspiracy:

"Put shortly, this means that the conduct complained of must be found to be unlawful and in circumstances where the Bank should have known that damage would ensue and, in fact, damage did ensue."

[55] "Likely" has been said to mean "more likely than not": Sayle v. Jevco Insurance Co. Ltd. Management Company (1985), 16 C.C.L.I. 309 at 310 (B.C.C.A.), Lambert J.A., such that having known that something would likely happen means knowing that there was a better than 50% chance it would occur. But having known that something "would ensue", in the words of Estey J., suggests to me a much greater knowledge of what is to happen.

[56] Civil conspiracy, as it has long been understood, has been the conspiring of two or more to injure a third. Having particular regard for the fact that conspiring to act unlawfully is an extension of that tort, I consider that a constructive intent must constitute more than a greater than 50% chance that injury to the plaintiff will occur; it must amount to a clear expectation.

[57] The tort exists not to provide a remedy for unlawful conduct per se but to provide a remedy where conduct of that kind is directed at a particular person (or persons) who suffers injury.

[58] I would then say that liability in conspiracy will arise where two or more have agreed to carry out a common design by unlawful means, directed at a third person, if those who have agreed knew, or in the circumstances should have known, that injury to that person was likely in the sense that it was clearly expected, and the injury was sustained as a result of the agreed upon means being implemented.

[59] Golden Capital distinguishes between what it says constitutes an injury and what amounts to loss or damages. It says that all that need be established is that those who conspire to commit unlawful acts directed at one or more others knew or ought to have known that it was likely they would cause injury because they created a risk of loss or damage.

[60] The only authority cited to support what appears to me to be a somewhat novel distinction is the Shorter Oxford English Dictionary definition of "injury" which includes an infringe­ment of rights, insult, hurt, loss, harm, detriment, or damage. This approach to arriving at the meaning of the word was adopted in Vancouver General Hospital v. Scottish & York Insurance Co. (1987), 1987 CanLII 2601 (BC SC), 15 B.C.L.R. (2d) 178 at 192, 41 D.L.R. (4th) 657 (S.C.).

[61] In my view, however, the definition is of little assistance in drawing the distinction for which Golden Capital contends and I do not consider the distinction to be one that can be sound in law. The tort is premised on an actual or constructive intent to injure, not the creation of a risk of injury. Until a loss or damage is sustained, there is no injury. I am unable to accept the distinction Golden Capital seeks to draw and I reject it.


Pulling pargraphs 57 and 58 from the above:

[57] The tort exists not to provide a remedy for unlawful conduct per se but to provide a remedy where conduct of that kind is directed at a particular person (or persons) who suffers injury.

[58] I would then say that liability in conspiracy will arise where two or more have agreed to carry out a common design by unlawful means, directed at a third person, if those who have agreed knew, or in the circumstances should have known, that injury to that person was likely in the sense that it was clearly expected, and the injury was sustained as a result of the agreed upon means being implemented.
I find it hard not to accept that the ALPA's intention was to injure the OTS pilots. It is true that the Encore pilots would simultaneously gain as a result of the LOU, but it would be clear to all present in Herndon for that gathering that they would injure the OTS pilots by proceeding with their plan.

It should be noted that even with four of the five elements of the conspiracy established, the tort is not complete without the LOU being signed. For this to happen, WJ itself would have to unknowingly participate in the conspiracy, with or without knowledge that ALPA's conduct was illegal (as a result of the constitutional breach, per Berry v. Pulley).

In any event, I could not see WJ going anywhere near an LOU that attempted to do what the MEC and the incoming Canada Board President suggest it intended to do.
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Re: Herndon Pact: Tort of Unlawful Conduct Conspiracy?

Post by The Tenth Man » Fri Dec 14, 2018 6:09 am

I read through Agribrands Purina Canada Inc. v. Kasamekas a couple of times last night and tried to understand an updated view of conspiracy as presented by the Ontario Court of Appeal.

I read with interest the following passages:
[38] What is required, therefore, to meet the "unlawful conduct" element of the conspiracy tort is that the defendants engage, in concert, in acts that are wrong in law, whether actionable at private law or not. In the commercial world, even highly competitive activity, provided it is otherwise lawful, does not qualify as "unlawful conduct" for the purposes of this tort.

[39] The appellants submit that while Purina's breach of its contract with Raywalt was sufficient to qualify as "unlawful conduct", neither Ren's nor McGrath did anything that would do so. I agree. In my view, the trial judge used an approach that is too broad. Assessed against the correct test, their conduct was not unlawful.

[40] Dealing with Ren's conduct, at the time it purchased feed from McGrath, it had no contract with either Purina or Raywalt. Ren's was free to purchase Purina feed from McGrath at the best price it could obtain and sell it wherever it could. I disagree with the trial judge's conclusion that Ren's was not entitled to be able to obtain Purina feed for resale at advantageous pricing available only to Purina dealers. Ren's conduct in doing so breached no contract. Nor was this conduct tortious or in breach of any statute. Indeed, the trial judge explicitly found that Ren's committed no crime or tort apart from the conspiracy. Ren's required no authorization from Purina to act as it did.

[41] On appeal, the respondent advanced for the first time the proposition that Ren's induced Purina to breach its contract with Raywalt and induced McGrath to breach its contract with Purina. Neither of these allegations was advanced at trial. They are belied by the trial judge's finding that, other than conspiracy, Ren's committed no tort. Moreover, the trial judge's finding that Purina knew of, and approved of the arrangement between Ren's and McGrath, leaves little room for the conclusion required by the inducing breach of contract tort, namely, that Ren's caused Purina to breach its contract with Raywalt or induced McGrath [page439] to breach its contract with Purina, assuming such a breach could be found. There was nothing in Ren's conduct that was wrong in law. It was not "unlawful conduct" for the purposes of the tort of conspiracy.

[42] Turning to McGrath's conduct, the trial judge found it to be "unlawful" because McGrath had no authority to effectively establish a sub-dealership for Ren's to obtain Purina feed at advantageous prices and then sell it into Raywalt's territory. The trial judge characterized McGrath's conduct as a violation of Purina's standard operating procedures. He therefore did not find McGrath's conduct to constitute a breach of his contract with Purina. Indeed, the standard dealership agreement that Raywalt and Ren's had with Purina did not prohibit such an arrangement. Moreover, the trial judge could not have found McGrath to be in breach of his dealership contract with Purina. His finding that Purina knew and approved of what McGrath was doing precluded that possibility, even if such a prohibition had been a term of McGrath's contract. There is no suggestion that McGrath's actions were tortious or in violation of any statute or in other way wrong in law. In my opinion, McGrath's actions cannot be said to be "unlawful conduct" for the purposes of the tort of conspiracy.

[43] In summary, I conclude that only Purina engaged in any unlawful conduct. The other two appellants did not. As a consequence, the finding of unlawful conduct conspiracy and the damages flowing from it must be set aside. The respondents' claim based on civil conspiracy must be dismissed.
It seems to me, a person with no legal training, that the above comments mean that in our situation, the claim of conspiracy must fail. Although the proposed LOU, as presented by the MEC update of November 2, 2018, requires the WJ MEC and the WJE MEC Chairman to violate their constitutional duty to "comply with" and "further" the policies of the BOD, the meeting in Herndon was only a plenary session. The actual act that would cause the harm to the OTS pilots would be the signing of the LOU. This required WJ's agreement. WJ is entitled to sign agreements with ALPA, and in doing so, regardless of its opinion on the lawfulness of ALPA doing so, it would commit no wrong. It's conduct would not be "unlawful". The tort of conspiracy, if I undrestand it (and I may might not) requires that all parties to the agreement commit some kind of unlawful behaviour in doing so.

Therefore, I think the claim fails.
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Re: Herndon Pact: Tort of Unlawful Conduct Conspiracy?

Post by '97 Tercel » Fri Dec 14, 2018 6:17 pm

What's the best headset to buy?
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Re: Herndon Pact: Tort of Unlawful Conduct Conspiracy?

Post by truedude » Fri Dec 14, 2018 8:57 pm

'97 Tercel wrote:
Fri Dec 14, 2018 6:17 pm
What's the best headset to buy?
The most brilliant thing ever written here!!!
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Re: Herndon Pact: Tort of Unlawful Conduct Conspiracy?

Post by Liftdump » Sat Dec 15, 2018 3:18 pm

Yes it is
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Re: Herndon Pact: Tort of Unlawful Conduct Conspiracy?

Post by Schooner69A » Sat Dec 15, 2018 6:00 pm

I dunno. I haven't read many decisions, but 'Agribrands' vs 'Kasamekas' seems par for the course. Needs some distillation in spots, but judges aren't known for being taciturn.


Other than that, good write up.
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Re: SWOOP OTS Captains punted from left seat...

Post by twinpratts » Sun Dec 16, 2018 12:25 am

How many of the original 30 OTS hires at Swoop are still on property?
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Re: SWOOP OTS Captains punted from left seat...

Post by KAG » Mon Dec 17, 2018 5:39 am

Swallow, imho I'll wager (no money just bragginging rights) the swoop starting left seat and CBA will be damn near what we (wj) currently have. Rouge has set the bar, and I dont think Kaplan is going to deviate far from it. $103 / hour for 737 skipper is laughable, an unrealistically low offer that they cant expect to maintain given today's environment. Nor do I feel were (again WJ) going to hit it out of the park and match AC. I think overall it'll fit somewhere between what we have, and what AC has. Some give and take. We'll see soon enough
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Re: SWOOP OTS Captains punted from left seat...

Post by The Tenth Man » Mon Dec 17, 2018 5:54 am

Since I have zero experience with, knowledge of, or ability to research decisions of arbitrators, I’ll have to opine without an informed opinion.

In my opinion, your reasoning justifying a Rouge-like wage for Swoop is faulty. Swoop is not in the ULCC space, and as Flair’s complaint to the Competition Commisioner shows, the ability to justify ultra-low fares is crucial to Swoop. In my opinion, there will be very little uplift over current Swoop rates. Some perhaps, but nowhere near current WJ wages.
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Re: SWOOP OTS Captains punted from left seat...

Post by The Tenth Man » Mon Dec 17, 2018 9:22 am

And Chris, I would add that militating against a higher Swoop Capt wage of any significance is that Transat has the same entry wage, Sunwing’s is only marginally higher, as is Flair’s IIRC. Swoop was able to fill the positions at that wage, and obviously Flair is too. Why would a mediator force a significantly higher than market wage upon a company?
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Re: SWOOP OTS Captains punted from left seat...

Post by mbav8r » Mon Dec 17, 2018 2:05 pm

China_CAAC_Exam wrote:
Mon Dec 17, 2018 9:22 am
And Chris, I would add that militating against a higher Swoop Capt wage of any significance is that Transat has the same entry wage, Sunwing’s is only marginally higher, as is Flair’s IIRC. Swoop was able to fill the positions at that wage, and obviously Flair is too. Why would a mediator force a significantly higher than market wage upon a company?
How about WJ violated a written agreement on scope, for starters.
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Re: SWOOP OTS Captains punted from left seat...

Post by The Tenth Man » Mon Dec 17, 2018 2:34 pm

mbav8r wrote:
Mon Dec 17, 2018 2:05 pm
China_CAAC_Exam wrote:
Mon Dec 17, 2018 9:22 am
And Chris, I would add that militating against a higher Swoop Capt wage of any significance is that Transat has the same entry wage, Sunwing’s is only marginally higher, as is Flair’s IIRC. Swoop was able to fill the positions at that wage, and obviously Flair is too. Why would a mediator force a significantly higher than market wage upon a company?
How about WJ violated a written agreement on scope, for starters.

Ok, for starters. What else do you have?

Kaplan’s terms of reference likely did not include applying a punitive measure as part of his deciding between the company’s proposal or the union’s for the contract items under discussion.

Remember, any issues with Swoop employment were resolved with the agreement to recognize common employer, and subsequently Kaplan’s Award in October.
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Common Law DFR - Swoop OTS Pilots

Post by The Tenth Man » Tue Dec 18, 2018 8:26 am

NOTE: I have renamed this thread so that it focusses on the DFR issues surrounding Swoop pilots and their seniority rankings/rights.

With the revelation that a common law duty of fair representation is owed to WJ pilots in the period commencing with certification and essentially (exceptions may exist) ending when the statutory duty takes effect with the collective agreement coming to life, it is appropriate to examine what, if any, situations may have arisen since May 12, 2017 that may have breathed life into a possible common DFR claim.

One thing that comes immediately to mind is that Swoop pilots have been owed a common law duty of fair representation since June 8, 2018 (possibly as early as May 25, 2018), when the parties agreed that Swoop and WJ were common employers. This being the case, ALPA's behaviour with respect to Swoop pilots and the arbitration award of October 30, 2018, can be scrutinised. Did the Swoop pilots get the best possible deal they could have in the arbitration?

Additionally, have there been any ALPA communications directed to the WJ pilot group that may have violated the DFR? For instance, was A15 (in response to Q15) on the June 11, 2018 communication to WJ pilots crafted with sufficient care? I am thinking of a hypothetical case of a WJ flowthrough pilot who flowed (from Encore) to WJ prior to June 11, 2018, and suffered harm as a result of this communication. Arguably it is a stretch, but I can see a situation where the pilot in question turned down an offer of work at (let's assume for the purposes of this hypothetical scenario) Air Canada based on an assumption that he would be further up the WPSL than will (likely) be the case. Assuming that the pilot did turn down the job at AC because of his reliance on his union's communication, what would be the damages (financial or otherwise) suffered by the pilot? He would have a duty to mitigate his damages (re-activating his employment application at AC, for instance) by whatever means possible.

These are a few issues that spring to mind. Are there others?
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Re: Common Law Duty of Fair Representation

Post by cloak » Tue Dec 18, 2018 9:41 am

It doesn't seem like ALPA has been really "representing" the Swoop direct-hire pilots, in spite of Kaplan's June interim ruling. As for the second question, hard to say, if facts were withheld, or people mislead, maybe; proving it may be difficult.

ALPA may have been so focused on its own agenda to lose sight of the big picture and sacrifice significant bargaining powers for little satisfaction. The end result may not be ideal for WestJet pilots in the form of a CBA and scope clause below expectations.
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Re: Common Law Duty of Fair Representation

Post by The Tenth Man » Tue Dec 18, 2018 4:48 pm

Hi cloak. I am trying to walk myself through the sequence of events in June. It seems that WJ and ALPA agreed at the May 25 meeting referenced by Kaplan that ALPA was the bargaining representative for the Swoop pilots. Kaplan mentions that seniority integration was stated as being an immediate concern by WJ and ALPA. I recognize the time factor, but if ALPA was representing both Swoop and WJ pilots, and a seniority list merger was necessary, why wasn't the ALPA Merger Policy (Section 45 of the Administrative Manual) applicable?
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Re: Common Law Duty of Fair Representation

Post by The Tenth Man » Tue Dec 18, 2018 6:02 pm

I will have to find out if there are any OTS Captains left at Swoop, although even if they all have left, it is likely they would have standing to pursue a DFR claim against ALPA as a result of the seniority awards/orders made by Kaplan. I have no idea if they would be successful, as there is very little informatiomn regarding the process. The first two attachments below are from the June 8 award. They show that on Mat 25, the parties agreed that Swoop pilots were represented by ALPA.

At some point in the ensuing days, written submissions were exchanged regarding various topics. On June 3, 6, and 7, arbitration/mediation was conducted regarding Swoop. As a result of these sessions and the written submissions, the Swoop pilots were placed on the WPSL by their DOH.

Through the ensuing months, further arbitration led to the Kaplan's order that Swoop Captains would lose their seats (See 3rd attachment) but be pay protected until they could hold a Captain position through their seniority. No fences around their positions, as might be the situation in some mergers. I recognize that sympathy might be in short supply for the Swoop OTS Captains (one is a very good friend of mine), but exactly who was representing their interests? Perhaps in the balance of equities, original WJ pilots were the victor and rightfully won rights to the seats, with Swoop OTS pilots getting pay protection as a mitigating measure. Maybe the Swoop pilots paid the price for WJ's error, if one were committed. A complicated situation.

I doubt many Swoop pilots who have departed for greener pastures have the desire for a court battle. Most are likely to just want to move on. It is conceiveable that none have suffered any damages as a result of a theoretical breach of the DFR, and are indeed in a better position.



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Re: Common Law Duty of Fair Representation

Post by The Tenth Man » Tue Dec 18, 2018 6:11 pm

From a case in the USA involving the merger of the seniority lists of Jet America (non-union) pilots with Alaska Airlines pilotas (ALPA). I recognize that there are obvious differences in the circumstances. There are also similarities.

Spoiler: "On October 1, 1987, the date Alaska and Jet America merged, ALPA's duty to fairly represent the Jet America pilots attached. ALPA breached that duty by discriminating against the previously nonunionized Jet America pilots in reaching an integrated seniority agreement with Alaska. The district court acted within its discretion in issuing an order to set the tainted agreement aside, compel the parties to reach a new one according to ALPA's own internal procedures, and submit to a stipulated system for promotions and furloughs in the meantime."


https://law.justia.com/cases/federal/ap ... 13/432339/
Air Line Pilots Association ("ALPA") appeals a partial summary judgment and injunction in favor of a class of pilots represented by Cress Bernard. Prior to the merger of Jet America Airlines ("Jet America") with Alaska Airlines ("Alaska"), the Alaska pilots were represented by ALPA for purposes of collective bargaining, while the Jet America pilots were unrepresented. Captain Bernard, a Jet America pilot, filed a complaint on behalf of himself and the other Jet America pilots against ALPA for breach of its duty of fair representation in negotiating an integrated seniority agreement with Alaska.

Jet America was an independent air carrier based in Long Beach, California, and employing approximately 102 nonunion pilots. In September 1986, Jet America was acquired by the Alaska Air Group, Inc., the corporate parent of Alaska Airlines, a carrier employing approximately 500 ALPA pilots.

Alaska Air Group operated Jet America and Alaska separately for a few months, and then announced that it would merge the carriers. Pursuant to the collective bargaining agreement governing the Alaska pilots, ALPA entered into negotiations with Alaska to determine how to integrate the Jet America pilots with the Alaska pilots for purposes of seniority and possible reductions in force.

At the time of the negotiations, ALPA followed two policies governing mergers: one for mergers in which ALPA was the recognized bargaining agent for both pilot groups involved, and one for mergers in which ALPA represented only one of the pilot groups involved. Under the former, ALPA merger representatives of each pilot group were required first to negotiate with each other in an effort to reach an integration agreement, and failing such an agreement, to enter into mediation, and if necessary, submit to final and binding arbitration. ALPA was then required to use "all means at its disposal to compel a company to recognize" the resulting seniority list. Under the latter policy, the ALPA president was required to make every effort to modify the general merger policy and gain acceptance of a procedure that would result in "a fair and equitable resolution in a timely and expeditious manner." Between May 1987 and October 1, 1987, the effective date of the merger, ALPA merger representatives met with management to discuss various proposals for integration. They also met informally with Bernard who appeared to be influential among the Jet America group. However, no Jet America representatives participated in any of the meetings between ALPA and management. ALPA representatives asked that Jet America pilots be permitted to participate. Management rejected the request.

When it appeared that management intended to proceed with the merger on October 1 despite the absence of an agreement regarding seniority and other merger issues, ALPA filed an action in the U.S. district court seeking to block the merger. After the court declined to issue a TRO, that lawsuit was voluntarily dismissed.

The agreement declared invalid here was reached on October 6, 1987. Significantly, between October 1, when the merger became effective, and October 6, no Jet America pilot participated in ALPA negotiations with Alaska, despite requests to participate. ALPA does not dispute that it did not follow its merger policy governing mergers of ALPA-represented groups in negotiating the October 6 agreement.

Bernard sued on behalf of himself and the other Jet America pilots alleging that ALPA had breached its duty of fair representation by: (1) excluding them from all negotiations for an agreement integrating the seniority lists of the two pilot groups; (2) entering into an agreement that discriminated against them in favor of the pre-merger Alaska pilots; and (3) failing to afford them the benefits of ALPA's own merger policy. Bernard then moved for summary judgment or, in the alternative, preliminary injunctive relief setting aside the October 6 agreement pending a trial.

The court granted partial summary judgment, holding that the October 1 merger triggered ALPA's duty of fair representation to the former Jet America pilots and that this duty was breached because the Jet America pilots were excluded from the bargaining process and ALPA failed to follow the dispute resolution procedures of its own merger policy.

By way of remedy, the district court: (1) directed ALPA to apply its current merger policy providing for negotiation, mediation and arbitration in order to resolve merger and seniority integration disputes between the two groups of pilots; (2) directed ALPA to treat the former Jet America pilots as a separate ALPA-represented group for purposes of implementing this policy and to appoint three Jet America pilot merger representatives; (3) vacated and set aside the October 6, 1987, seniority integration agreement between ALPA and Alaska Airlines; and (4) specified the basis by which pilots would be furloughed, promoted and given flying assignments in the interim period until a new agreement could be reached.

The district court specifically declined to rule on the fairness of the October 6 agreement, concluding that fairness should be determined in light of whatever agreement ultimately was reached pursuant to ALPA's merger policy. The court therefore retained jurisdiction to assess damages upon completion of the new agreement.

This court has jurisdiction over interlocutory orders granting injunctions under 28 U.S.C. § 1292(a) (1). In addition, an appeal under 28 U.S.C. § 1292(a) (1) brings before the court the entire order, and, in the interests of judicial economy the court may decide the merits of the case. Barrett v. Smith, 530 F.2d 829, 830 (9th Cir. 1975), cert. denied, 425 U.S. 977, 96 S. Ct. 2179, 48 L. Ed. 2d 801 (1976). The court, however, generally will chose to decide only those matters "inextricably bound up with" the injunctive relief. Marathon Oil Co. v. United States, 807 F.2d 759, 763-65 (9th Cir. 1986), cert. denied, 480 U.S. 940, 107 S. Ct. 1593, 94 L. Ed. 2d 782 (1987).

It is not disputed that the district court's order specifying interim relief is an appealable injunction. But the court's finding on the duty of fair representation issue underlies the decision permanently to vacate and set aside the October 6 agreement, and, in turn, the latter decision necessitated some form of interim relief. Thus review of the propriety of the order specifying the form of interim relief is inextricably tied with the underlying decision, and this court has jurisdiction to review the entire order. Cf. Fentron Inds. v. National Shopmen Pension Fund, 674 F.2d 1300, 1303-04 (9th Cir. 1982) (since substantive ERISA issues underlay district court decision to grant permanent injunction, review of injunction necessarily involves deciding ERISA claims, and Sec. 1292(a) (1) jurisdiction extends to partial summary judgment on those claims).

Further, the interests of judicial economy are well served where, as here, the record is well developed and the district court has completed its consideration of the disputed issues. See Marathon Oil, supra, at 764; Sierra On-Line Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984).

ALPA violated its duty of fair representation if (1) it represented the Jet America pilots and thus owed those pilots a duty of fair representation, and (2) it breached that duty.

The district court found no genuine issue of material fact concerning whether ALPA represented the Jet America pilots on and after October 1, 1987, and ALPA does not dispute this finding. At the TRO hearing on September 30, 1987, to block the impending merger, ALPA representatives acknowledged that ALPA would represent the Jet America pilots after the merger. In any event, the collective bargaining agreement states that ALPA is the certified representative for all pilots employed by Alaska Air, and after the merger, the Jet America pilots squarely fit this description.

The question, therefore, is whether ALPA breached its duty of fair representation. In general, a union owes a duty of fair representation to all members of the bargaining unit in negotiating an integrated seniority list. See Humphrey v. Moore, 375 U.S. 335, 84 S. Ct. 363, 11 L. Ed. 2d 370 (1964). Because the interests of a few individuals often must give way to the interests of the group, courts have given unions wide latitude. If a union's actions are not arbitrary, capricious, or taken in bad faith, they will not be found to violate the duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 916, 17 L. Ed. 2d 842 (1967); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S. Ct. 681, 97 L. Ed. 1048 (1953). A union may negotiate for and agree to contract provisions involving disparate treatment of distinct classes of workers as long as such conduct is not arbitrary or taken in bad faith. Williams v. Pacific Maritime Ass'n, 617 F.2d 1321, 1330 (9th Cir. 1980) (approving disparate treatment of provisional workers and fully registered longshoremen), cert. denied, 449 U.S. 1101, 101 S. Ct. 896, 66 L. Ed. 2d 827 (1981); see also In re Pan American-Acquisition of Control of, and Merger with National, CAB Order 82-3-16, Docket 39851 (March 4, 1982) at 4-5 (National employees not entitled to separate representation in negotiations over integrated seniority list because "labor organizations as a matter of course must compromise divergent interests among their members").

Wide latitude, however, does not mean a union may discriminate on the basis of union membership. Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1483 (9th Cir. 1985); see also Teamsters Local Union No. 42 v. NLRB, 825 F.2d 608, 612 (1st Cir. 1987) (seniority integration system based on date of membership to the union held discriminatory and constituted a duty of fair representation violation).

Two uncontested facts support the district court's finding that ALPA breached its duty of fair representation. First, no Jet America pilot was permitted to participate in ALPA negotiations with Alaska after the merger, despite requests to do so. Second, ALPA failed to follow its own merger policy for mergers with ALPA-represented groups. This policy would have required ALPA to conduct internal negotiations with Jet America pilots, and mediate and arbitrate if necessary, before presenting its position to management.

ALPA argues that its actions were neither arbitrary nor capricious, and therefore within the range of conduct allowed by the courts. According to the union, it reasonably concluded that speaking to management as one voice would best serve the interests of the members of the union as a whole, and so chose not to appoint a Jet America pilot to the negotiating team. Moreover, it claims, its negotiating strategy did not discriminate merely on the basis of union membership, but was dictated by the equities of the situation. In particular, Alaska had been expanding prior to the merger and ALPA could expect to add to the number of its pilots. Jet America, on the other hand, had been contracting. The prospects for its pilots were not optimistic. Finally, ALPA argues it was not obliged to follow its merger policy once the Jet America pilots were merged with the Alaska pilots. Once merged, the two pilot groups became a single bargaining unit, and ALPA's duty to the Jet America pilots was no broader than that dictated by the law of fair representation.

However, ALPA's general statement begs the question. ALPA's adoption of a merger policy for situations involving mergers with ALPA-represented groups shows that ALPA itself realizes such cases pose a difficult task of balancing not just divergent, but polarized, interests. Had the Jet America pilots been represented by ALPA prior to the merger and been accorded the benefit of the merger policy, and had no agreement been finalized by the merger date, it is hard to believe that ALPA would have abandoned its merger policy and simply treated the two groups of pilots as a unified bargaining unit. The effect of ALPA's approach is to discriminate against the Jet America pilots because they were not unionized prior to the merger.

Moreover, undisputed evidence suggests that ALPA failed even to recognize that it represented the Jet America pilots as of October 1. For example, it signed the October 6 agreement on behalf of the premerger Alaska pilots only. A letter from ALPA's president to Bernard as late as October 20 described the Jet America pilots as nonunion and claimed that ALPA had applied its merger policy regarding nonunion shops to reach the October 6 agreement. Thus its claims that it accorded the Jet America pilots fair representation during the post-October 1 negotiations are hollow.

Having correctly determined that ALPA violated its duty of fair representation, and that a new agreement would have to be executed, the district court faced the question what to do in the interim. Rather than allow the tainted October 6 agreement to govern, the court ordered the agreement set aside, and a temporary system for promotions and furloughs established.

A district court's grant or denial of preliminary injunctive relief will be reversed only where the district court abused its discretion or rested its conclusion on clearly erroneous factual findings or erroneous legal conclusions. Sierra Club v. United States Forest Serv., 843 F.2d 1190, 1192 (9th Cir. 1988).

In considering whether to award a preliminary injunction, a trial court considers the likelihood that the moving party will prevail on the merits and the possible harm to the parties from granting or denying the injunction. Where a party can show a strong chance of success on the merits, he need show only a possibility of irreparable harm. Where, on the other hand, a party can show only that serious questions are raised, he must show that the balance of hardships tips sharply in his favor. Sierra On-Line, supra, at 1421.

By winning on the duty of fair representation issue, Bernard has shown a 100% chance of success on the merits. Hence he need show only a possibility of irreparable harm and that the balance of hardships is tipped even slightly in his favor.

In this case, just as the Jet America pilots may suffer irreparable harm as a result of leaving the October 6 agreement in place if that agreement proves to be less favorable to them than the agreement ultimately reached, the Alaska pilots may suffer irreparable harm as the result of imposing interim relief if that relief proves to be less favorable to the Alaska pilots than the agreement ultimately reached. Thus the issue turns on the balance of hardships. Given the finding that ALPA failed fairly to represent the Jet America pilots, we cannot say the district court erred when it concluded that leaving the tainted October 6 agreement in place until a new one could be executed would pose a greater risk of hardship to the Jet America pilots than to the Alaska pilots. The district court specifically declined to rule on the substantive fairness of the October 6 agreement. Thus we cannot now say how similar the terms of the ultimate agreement will be to the October 6 agreement; we know only that the latter is tainted by a duty of fair representation violation. This fact tips the balance in favor of the Jet America pilots.

CONCLUSION

On October 1, 1987, the date Alaska and Jet America merged, ALPA's duty to fairly represent the Jet America pilots attached. ALPA breached that duty by discriminating against the previously nonunionized Jet America pilots in reaching an integrated seniority agreement with Alaska. The district court acted within its discretion in issuing an order to set the tainted agreement aside, compel the parties to reach a new one according to ALPA's own internal procedures, and submit to a stipulated system for promotions and furloughs in the meantime.

AFFIRMED.
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Re: Common Law Duty of Fair Representation

Post by skybaron » Tue Dec 18, 2018 6:39 pm

:roll:
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Last edited by skybaron on Tue Dec 18, 2018 7:35 pm, edited 1 time in total.

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Re: Common Law DFR - Swoop OTS Pilots

Post by The Tenth Man » Tue Dec 18, 2018 6:47 pm

From ALPA's Significant Dates page regarding negotiations between WJ and ALPA:

June 20, 2018 – Swoop starts service. Now that both parties reached an agreement that WestJet and Swoop are common employers under the Canada Labour Code, and that we are working toward a single Collective Agreement, Swoop flying is WestJet flying—addressing one of WestJet pilots’ top priorities for these negotiations.

June 7, 2018 – Arbitrator William Kaplan issued an interim award regarding Swoop flying: WestJet pilots secured Swoop flying. Among other things, this award ruled that WestJet pilots will fly Swoop planes and determined the seniority of pilots already hired at Swoop. The parties also agreed that WestJet and Swoop are common employers. Not included in the interim award: terms and conditions of Swoop, which will be finalized in the Collective Agreement. Mr. Kaplan will continue as mediator/arbitrator to finalize the Collective Agreement (future dates are scheduled for July, August, and September if necessary).

June 1, 2018 – Mediated negotiations about Swoop begin with assigned mediator/arbitrator, Mr. William Kaplan.

May 25, 2018 – After a very tense week of negotiations involving an agreement by WestJet pilots not to strike, and WestJet not to lock out its employees, the MEC and the Negotiating Team obtained the right to fly all WestJet planes, including those operating at Swoop. The parties come to a settlement process through the Federal Mediation and Conciliation Service involving further mediation, followed by binding arbitration.
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Re: Common Law DFR - Swoop OTS Pilots

Post by The Tenth Man » Tue Dec 18, 2018 7:11 pm

Forgive this off topic post, but while looking at ALPA communications regarding Swoop, I came across this statement (October 4th/5th) from the MEC. The MEC seemed to believe that Kaplan's Interim Award of September 30 clarified lingering questions of seniority within the WestJet Group. Were they trying to suggest that the the seniority referred to by Kaplan was the seniority with reference to the WPDL? If not, what exactly was the MEC trying to suggest? For ease of reference, I attach the September 30 Kaplan communication in its entirety below.

It becomes more clear with the passage of time and the study of the actual documentation that the MEC was either confused itself, or deliberately confusing the seniority question. What was the MEC's Vice-Chairman's (Canada Board President - Elect) understanding of the WPSL?






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ALPA_Kaplan_Interim Award - Sept 30, 2018_JPEG.jpg
ALPA_Kaplan_Interim Award - Sept 30, 2018_JPEG.jpg (436.83 KiB) Viewed 2074 times
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Re: Common Law DFR - Swoop OTS Pilots

Post by The Tenth Man » Tue Dec 18, 2018 7:25 pm

In analysing this MEC communication from September 30 announcing Kaplan's Award, I wonder if a union fairly representing the Swoop pilots would consider the removal of those pilots from their Captain's seat as being "fair, balanced, and reasonable"? It's possible my bias is clouding my judgment here, and that result was to be expected. I suppose one would need to read ALPA's submissions to Kaplan to truly know the answer to this question, and the only way that could ever happen is through a discovery process associated with a civil claim.
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ALPA_WestJetAlert093018_p1_JPEG_LI.jpg (1.01 MiB) Viewed 2061 times
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Re: Common Law DFR - Swoop OTS Pilots

Post by skybaron » Tue Dec 18, 2018 7:35 pm

F*^#! Here we go again.

Just when one thinks or even prays for a thread to be burried, like f’kn clockwork, it gets ressurected to top topic.

When is this going to end John? More importantly, how are YOU BENEFITING from all of this propaganda?

No matter which way you role, the union isnt leaving WJ. Attempting to get the pilot group to go against each other still won’t get rid of it. Just accept the many offers of help from your colleagues and call it a day man.

Let’s face it, this propoganda of uncertainly doesn’t do your company any favours, and, I’m sure those at HR will soon figure this out.
Meaning, the environment you’re supporting is very toxic, and does little to foster retention or applications. So really, you’re just sabotaging the very thing you want to protect.

Case in point, Air Canada, and Transat/Sunwing have groundschool classes in January that contain some of your colleagues. This trend is only going to be exponential, as uncertainty of one’s career within a company causes toxicity, resulting in resignations. All of this in a “growing airline”!

From all of us outsiders, WJ culture did a complete 180. To most, it’s looked at as a stepping stone. Shame.

Good luck with keeping up a positive cockpit environment with your coworkers.
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Re: Common Law DFR - Swoop OTS Pilots

Post by Rowdy » Tue Dec 18, 2018 9:43 pm

WJ management and WJ ALPA are both aware of Johns forum activity.
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