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Re: Common Law DFR - Swoop OTS Pilots

Post by KAG » Tue Dec 18, 2018 10:49 pm

John....its time to stop. Seriously, full stop.
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Re: Common Law Duty of Fair Representation

Post by cloak » Tue Dec 18, 2018 10:50 pm

China_CAAC_Exam wrote:
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?
What is that merger policy? Date of hire with position freeze? It seems that date of hire is being done, but position freeze was not. Not sure why? ALPA was ordered to "represent" both groups, again not sure to what extent they did. Those are good questions for ALPA.
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Re: Common Law DFR - Swoop OTS Pilots

Post by lostaviator » Tue Dec 18, 2018 11:13 pm

Are you getting the legally required amount of sleep prior to duty?
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Re: Common Law DFR - Swoop OTS Pilots

Post by cloak » Tue Dec 18, 2018 11:26 pm

Are you?!! :shock:
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Re: Common Law Duty of Fair Representation

Post by The Tenth Man » Wed Dec 19, 2018 6:12 am

cloak wrote:
Tue Dec 18, 2018 10:50 pm
China_CAAC_Exam wrote:
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?
What is that merger policy? Date of hire with position freeze? It seems that date of hire is being done, but position freeze was not. Not sure why? ALPA was ordered to "represent" both groups, again not sure to what extent they did. Those are good questions for ALPA.
Hi cloak. ALPA Merger Policy is a very lengthy process in its entirety. There is no "date of hire" policy for mergers in ALPA Merger Policy. The policy was last revised in 2009, and it does allow for the merger representatives from ALPA WJ and Swoop (ALPA) to agree to any process they like in order to come to an agreement on an Integrated Seniority List (ISL). Here is an excerpt from the policy, Part 3 (C) 4. (e)(f)(g) to :

...(e) The merger representatives shall carefully weigh all the equities inherent in their merger situation. In joint session, the merger representatives should attempt to match equities to various methods of integration until a fair and equitable integrated seniority list is reached. Factors to be considered in constructing a fair and equitable integrated seniority list, in no particular order and with no particular weight, shall include but not be limited to the following:

§ Career expectations.

§ Longevity.

§ Status and category.

f. No integrated seniority list shall be subject to MEC or membership ratification.

g. It is recommended that outside legal counsel not participate in direct negotiations


I have attached the full current version below. I don't what to think about whether it would have been possible for ALPA Merger Policy to have been followed. You can read through it and see what you think. Certainly ALPA had a duty to the Swoop pilots. Whether they fulfilled that policy or not is a question for a judge.

In reviewing some Canadian case law last night, it is my non-lawyer's opinion that the mediator's Award itself is virtually unassailable. It is my understanding that the only parties who could have any standing to do so would be WJ and ALPA, and they both likely signed an agreement that specified the resultant award would be final and binding, leaving them very little wiggle room. The disagreement between original Air Canada pilots and the former Canadian pilots led to various court proceedings, of which Air Canada, 2004 CIRB 263 offers helpful direction in the matter at hand.
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Re: Common Law DFR - Swoop OTS Pilots

Post by The Tenth Man » Wed Dec 19, 2018 6:25 am

As stated above, the three factors that de minimis must be considered in constructing the ISL are:
  • Career Expectations
  • Longevity
  • Status and Category
Obviously, the Swoop pilots did not have longevity in their favour. I can imagine their career expectations were legitimately to get in on the ground floor of a start up operation and take advantage of the opportunities that would allow, including quick promotion to (or direct entry as) Captain and various training and supervisory opportunities. As far as status and category, well, some of them were in the left seat.

As stated before, the issue would come down to who was representing the interests of Swoop pilots in the mediation/arbitration that led to the decision to demote them from the left seat, for instance, and what factors led to that decision. Once again, perhaps the balance of convenience in a legal sense favoured the subordination of Swoop pilots' status to that of WJ pilots, who Kaplan may have felt should have been in those seats originally. If that's how he felt.
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Re: Common Law DFR - Swoop OTS Pilots

Post by The Tenth Man » Wed Dec 19, 2018 6:30 am

Rowdy wrote:
Tue Dec 18, 2018 9:43 pm
WJ management and WJ ALPA are both aware of Johns forum activity.
Hi Rowdy. I'll leave my relationshiop to/with WJ management as a private matter.

Regarding ALPA, well, they certainly do have recourse to the civil courts if they feel that I have impugned their reputation. All of this subject to the right of a member (I may be one, just in bad standing, not sure) to vigorously oppose his union's direction. As long as I am not colluding with WJ management in any way, which is against the CLC, well, all we have are libel laws to fall back on. In which case I might be able to avail myself of the discovery process to get to the facts in the matter through ALPA's own records.
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Re: Common Law DFR - Swoop OTS Pilots

Post by The Tenth Man » Wed Dec 19, 2018 6:34 am

lostaviator wrote:
Tue Dec 18, 2018 11:13 pm
Are you getting the legally required amount of sleep prior to duty?
Hi lostaviator. Prior to stopping alcohol use in July, 2013, I would think that my sleep habits were poor. In the current era, I have to say I am enjoying the best sleeps of my life. While I do have to get up once, maybe twice for a nocturnal urination, I quickly fall back into a very restorative sleep. For the last several months I have been using my Bose headset and listen to Youtube rainfall and thunderstorm videos and that usually have me out inside of 15 minutes.

Thanks for the concern though!

John Swallow
(The younger version)
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Negligent Misrepresentation - Encore pilots

Post by The Tenth Man » Wed Dec 19, 2018 7:18 am

With the awareness that a common law DFR exists in the period following certification and prior to the collective agreement coming to life, it becomes apparent that the duty of care is owed to the pilots by ALPA is in part due to a sufficient proximity (I think) between the pilots and their union. This proximity and the duty of care owed, means that it would not be out of the question for a union member to place reliance on the communications issued by his representatives. Certainly no one would expect volunteer pilots to be lawyers or even to be very familiar with all of the law applicable to a person in her position. That said, if we apply a reasonable person standard to the actions of union officials, that might point us in the direction of understanding the responsibility inherent upon union officials.

The following attachments are from a 1983 Ontario Labour Relations Board decision, Smith v. Amalgamated Clothing & Textile Workers Union regarding advice offered to two employees by a union representative that while likely offered innocently, later caused the employees harm.

While you guys read the case, I'll gather up the communications that I have from ALPA representatives, both prior to certification and after, to see what representations were made by representatives of ALPA regarding the WPDL, the relationship of seniority to the WPDL, and the ordering and components of the WestJet Pilot Seniority List (WPSL) referenced by Kaplan.

I am also interested in the question of whether the WJ MEC may have misrepresented the composition of the WPSL to the WJ LEC's, and whether that issue may have been primary reason for the recall of the Chairman. Fortunately for the Vice-Chairman, he had already left the MEC to prepare for his induction as Canada Board President, so we will never know if he would have been recalled as well.

The circled element of the first attachment immediately below describes the second of the two allegations raised by the employees.
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Re: Negligent Misrepresentation - Encore pilots

Post by The Tenth Man » Wed Dec 19, 2018 7:41 am

The following attachments were issued in the period prior to certification, therefore no DFR was owed to any pilots. I suppose the tort of negligent misrepresentation could be alleged (if the One List cannot in fact be reporduced in an ALPA CBA), if a sufficient proximity and reliance could be proven, but I have not investigated that at this point.

ALPA_OC_April_2017_LI (3).jpg
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ALPA_OC_Founder_One_List_LI.jpg
ALPA_OC_Founder_One_List_LI.jpg (775.17 KiB) Viewed 2915 times
ALPA_VP_One_List_LI.jpg
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Re: Negligent Misrepresentation - Encore pilots

Post by The Tenth Man » Wed Dec 19, 2018 8:19 am

And then representations made regarding the One List after certification. Note: these communications are from the WJ MEC, not the WJE MEC, and therefore no reliance, if there is any to be made, on them can be made by WJE pilots who have not flowed. Those pilots could only rely, if they could prove they did so, on communications from their own MEC.
ALPA_MEC_WestJet_Special_Update_061118_p4_JPEG_LI (3).jpg
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ALPA_WestJetMECWeeklyUpdate100418_p1_JPEG_LI.jpg
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Re: Negligent Misrepresentation - Encore pilots

Post by The Tenth Man » Wed Dec 19, 2018 8:21 am

And the representation made by the then WJA MEC Vice-Chairman (now Canada Board President - Elect).
ALPA_Canada_Board_Tim_Perry_p2_JPEG_LI.jpg
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Re: Negligent Misrepresentation - Encore pilots

Post by The Tenth Man » Wed Dec 19, 2018 11:59 am

Assuming that the tort of negligent misrepresentation lies out of reach (referring to misleading statements made in the organizing campaign) to current and former Encore pilots, what is left is misleading or erroneous statements made by ALPA representatives since certification that were made without sufficient care, and ultimately led to some sort of loss.

This could be as simple as a direction from the Encore MEC to its pilots not to seek, or to delay employment at Swoop or WJ as doing so would not jeapordize their position on the WPDL. Had a pilot sought and obtained employment as an FO at Swoop, for instance, she would have been placed on the WPSL by her date of hire at Swoop and therefore be higher in seniority than her colleagues who later flow to WJ/Swoop. Staying at Encore would obviously delay eventual upgrade and or choice of base. When the industry slows its growth, and upgrade opportunities dry up, as little as one number difference in seniority can make a large financial difference.

It remains to be seen if the Encore MEC was sufficiently careful with its communications regarding the One List.
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Re: Negligent Misrepresentation - Encore pilots

Post by truedude » Wed Dec 19, 2018 3:36 pm

Dude, you need to get laid!
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Re: Negligent Misrepresentation - Encore pilots

Post by Schooner69A » Wed Dec 19, 2018 5:03 pm

"Dude, you need to get laid"

Unfortunately, sex is not going to cure this self-inflicted gun-shot wound.

It's going to take more than a romp in the sheets to fix this hole-in-the-collective-foot.

A mess of pottage comes to mind...
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Re: Common Law DFR - Swoop OTS Pilots

Post by The Tenth Man » Thu Dec 20, 2018 8:00 am

The CIRB's decision in Air Canada, 2002 CIRB 183 was a reconsideration of the arbitrated integrated seniority list issued by Arbitrator Morton G. Mitchnick following the merger of Air Canada (AC) and Canadian Airlines (CAI). The AC/CAI ISL can be distinguished from the integration of the Swoop and WJ seniority lists in that the former CAI pilots were represented by ALPA and the AC pilots were represented by ACPA, two separate unions, as well as the more important fact that Air Canada and Canadian were formerly direct competitors with no commonality of ownership prior to the merger (see Air Canada, 2000 CIRB 79).

The initial agreement that led to the Mitchnick Award was as follows:
AGREEMENT

BETWEEN:

AIR CANADA PILOTS ASSOCIATION (“ACPA”)

- and -

AIR LINE PILOTS ASSOCIATION (“ALPA”)

WHEREAS:

1. ACPA has filed an application with the Canada Industrial Relations Board (“the CIRB”). File No. 21177-C, (“the application”) under Sections 35 and 18.1 of the Canada Labour Code (“the Code”);

2. The application seeks a declaration under Section 35 that Air Canada, Canadian Airlines International Limited (“CAIL”), and two numbered Alberta companies are a single employer operating a single mainline airline under the Code;

3. The application also seeks certain consequential relief under Section 18.1 including an order that the two mainline pilot bargaining units at Air Canada and CAIL be consolidated into a single appropriate bargaining unit;

4. ACPA and ALPA wish to expedite the processing of the application, firstly by agreeing to certain issues where such agreement serves their mutual interests, and secondly, by agreeing to a process that will result in a fair and timely resolution of other issues upon which they do not agree.


THE PARTIES THEREFORE AGREE THAT:

1. ACPA and ALPA will take the following common positions in their pleadings and submissions with respect to the application:

(a) Since January 4, 2000, Air Canada and CAIL have carried on associated or related federal businesses under common control or direction, within the meaning of Section 35;

(b) The CIRB ought to exercise its discretion under Section 35 to declare that, for the purposes of Part I of the Code, Air Canada and CAIL are a single employer operating a single mainline airline business.

2. Subject to the right of ACPA and ALPA to take differing positions with respect to the sequence of issues to be determined by the CIRB and the timing of any CIRB Orders which may ultimately be appropriate, which right is specifically reserved by both ACPA and ALPA, ACPA and ALPA will also take the following further common positions in their pleadings and submissions with respect to the application:

(a) It is no longer appropriate to maintain two separate bargaining units for mainline pilots employed by Air Canada and CAIL respectively;

(b) Those two units should be combined to form a single mainline pilot bargaining unit at a time to be determined by the CIRB;

(c) The CIRB should conduct a representation vote, at a time to be determined by the CIRB, to decide whether ACPA or ALPA will represent that combined unit in collective bargaining, and

(d) In the event that the holding and/or counting of the representation vote is deferred until the completion of proceedings related to the seniority integration issue, the consolidation of the bargaining units and the determination of the single bargaining agent shall proceed as expeditiously as is practicable upon the completion of the seniority proceedings.

3. Should the CIRB issue a single employer declaration and find that the two mainline bargaining units at Air Canada and Canadian Airlines ought to be combined, and provided that ACPA and ALPA have not by that time agreed upon any integrated seniority list, ACPA and ALPA will jointly request that an integrated seniority list for Air Canada and CAIL pilots be determined by the following process under Section 18.1 of the Code:

(a) The integration of the two seniority lists shall be determined by a sole arbitrator jointly selected by the parties, namely Morton Mitchnik;

(b) The arbitrator shall integrate the seniority lists based on such principles as he finds applicable to a bargaining unit consolidation triggered by a single employer declaration under the Code;

(c) The parties are free to make whatever submissions they wish as to what the applicable principles may be;

(d) The parties to the arbitration will be ACPA and ALPA. However, if the employer seek to intervene the arbitrator may permit Air Canada and Canadian Airlines to participate in the proceeding to the extent that he considers appropriate. The cost of the arbitration will be borne by the parties in such shares as they agree upon or the arbitrator decides. ACPA and ALPA will have the right to represent their pre-merger pilot groups throughout the arbitration process and before the CIRB with respect to any proceedings reasonably related to seniority integration, regardless of whether or not the CIRB has determined that one or the other of them has obtained the bargaining rights with respect to both pre-merger pilot groups;

(e) The arbitrator will not be governed by either union’s policy, if any, respecting the integration or merger of seniority lists;

(f) The scheduling of the arbitration, and the manner in which it will be conducted, will be determined by the arbitrator having regard to such submissions and further agreements (if any) that the parties present to the arbitrator;

(g) The arbitrator shall have all the powers that the Board would itself have in merging seniority lists under the Code;

(h) Prior to the introduction of evidence in the arbitration, ACPA and ALPA will exchange detailed information on the pilot seniority lists at Air Canada and CAIL respectively, as those lists stood on January 3, 2000. The parties will forthwith have further discussions to identify the precise nature and format of the information to be exchanged;

(i) The arbitrator shall not make an award that alters the relative seniority rankings among employees who are legitimately on the seniority list of either of the two pre-merger pilot groups;

(j) Except as provided in the next paragraph the award(s) of the arbitrator shall be final and binding on ACPA, ALPA, Air Canada, CAIL and the pilots of Air Canada and CAIL;

(k) The award(s) of the arbitrator shall be incorporated into Board order(s), issued under Subsection 18.1(2) of the Code, in order to implement the within agreement of the parties. Such orders will be final orders of the Board, subject only to reconsideration by the Board and/or judicial review under the Federal Court Act.

4. With respect to all other issues arising from the application and not specifically addressed herein, ACPA and ALPA are free to advance whatever positions they wish.

DATED at Mississauga, Ontario this 24th day of June, 2000.
As I have mentioned previously, the Swoop/WJ ISL that Kaplan issued is not open to challenge by individual Swoop pilots. Only the parties to the arbitration, ALPA and WJ, are aware of the terms of the agreement that led to the agreement that WJ and Swoop were common employers.
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Re: Negligent Misrepresentation - Encore pilots

Post by Rowdy » Thu Dec 20, 2018 9:38 am

Schooner69A wrote:
Wed Dec 19, 2018 5:03 pm
"Dude, you need to get laid"

Unfortunately, sex is not going to cure this self-inflicted gun-shot wound.

It's going to take more than a romp in the sheets to fix this hole-in-the-collective-foot.

A mess of pottage comes to mind...
Yep, your junior has shot himself in both feet and is now running around bleeding out, instead of going to a get them stitched up. Because, you know, Doctors aren't right about anything ok?
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Re: Negligent Misrepresentation - Encore pilots

Post by The Tenth Man » Thu Dec 20, 2018 9:50 am

Shot himself in the foot? How?

While I could very accurately be accused of having a tendency of dogged determination to get to the root of an issue(s), I certainly don't think anything I have exhibited here reaches the level of a pathology. All I see from you Rowdy is simply a continuation of ad hominem attacks that others have instigated. I'm okay with that if you are.

There is always the option of the legal system for those that think they have been wronged by my words...

Personally I don't think that an examination of legal remedies available to those who think they may have been wronged is in any way morally objectionable. Nor do I think a review of legal remedies available to those who might be wronged by a union's future actions to be morally objectionable. I didn't ask for ALPA's intervention into the relationship between myself and my employer, yet here it is. There actions were legal, as were the actions of my colleagues in voting them onto the property. Equally so are my actions. No one invited me to critique the bargaining agent. No one asked me to assess the legal implications of what I consider to be inadvised actions and communications of the bargaining agent. Nor is any of it illegal. I think. I might be wrong. Only those with the courage of their convictions and principle to back up their anonymous postings here will find out.

Ta ta.
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Re: Negligent Misrepresentation - Encore pilots

Post by Rowdy » Thu Dec 20, 2018 10:04 am

There are no attacks. Simply commentary on your actions.

Have you actually retained legal counsel? Have you had a consultation with a lawyer that practices in labour and employment law? It might be an eye opener.

From an outside perspective, I don't see any wrongdoing by the bargaining agents. No more so, than any other even if there was.

I have however witnessed many failed attempts by pilots who thought they were versed in law.
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Re: Common Law DFR - Swoop OTS Pilots

Post by The Tenth Man » Thu Dec 20, 2018 10:23 am

In the arbitrated ISL occasioned by the merger of Canadian Pacific Airlines (CP) with Eastern Provincial Airways (EPA) in 1984, the seniority of the EPA pilots was discounted by 60%, but fences were applied around their positions as a means of mitigating the impact of the seniority reduction. This discount was later reduced to 25% as a result of a later merger, but the fences were removed.

Here is White v. Charbonneau, 1991, the first case to address the seniority controversy over the seniority list arbitration conducted by Arbitrator Donald Munroe, Q.C. in 1990.
IN THE MATTER OF THE COMMERCIAL

ARBITRATION ACT, S.B.C. 1986, C.3

AND IN THE MATTER OF AN AWARD OF

ARBITRATOR DON MUNROE, Q.C., DATED FEBRUARY 8, 1990

BETWEEN:

REGINALD E. WHITE and JOHN GRACE, both personally and in their capacities as Chairman and Vice-Chairman, respectively, of the Local Executive Council #19 of the Canadian Airlines Master Executive Council of the Canadian Air Line Pilots Association, and in their capacities as representatives of the pilots formerly employed by Eastern Provincial Airways who became employed by Canadian Airlines International Limited

PETITIONERS

AND:

KENNETH CHARBONNEAU and W.T. PALMER, sued only in their capacities as Chairman of the Canadian Airlines Master Executive Council of the Canadian Air Line Pilots Association and Chairman of the Local Executive Council #12, respectively, as representatives of the members of the Canadian Airlines Master Executive Council of the Canadian Air Line Pilots Association, THE CANADIAN AIR LINE PILOTS ASSOCIATION, THE AIR CREW ASSOCIATION OF CANADA, CANADIAN AIRLINES INTERNATIONAL LIMITED and DONALD MUNROE, Q.C.

RESPONDENTS
In 1993, an appeal was made of the preceding decision (White v. Charbonneau, 1993)
6 When the arbitration hearings began, the original Eastern Provincial Airways pilots asked the arbitrator for standing to be represented at the hearing. As I understand the facts they said that they wanted to make submissions in relation to two matters. The first related to the discounts that had been imposed on them in the past by the discounting of their actual seniority by 60%, and then by substituting 25% for the 60%, through the Feller and Teplitsky awards. They wished to eliminate the discounting. The second matter was an aspect of the first. It was that in any event the 25% discount should not be carried forward in relation to the relative seniority of the former Eastern Provincial Airways pilots with respect to the newly joined former Wardair pilots.

7 Mr. Munroe rejected the request of the original Eastern Provincial Airways pilots for standing to make separate representations and gave considered reasons for doing so. He then went on and settled a composite seniority list.
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Re: Negligent Misrepresentation - Encore pilots

Post by The Tenth Man » Thu Dec 20, 2018 11:02 am

Rowdy wrote:
Thu Dec 20, 2018 10:04 am
There are no attacks. Simply commentary on your actions.

Have you actually retained legal counsel? Have you had a consultation with a lawyer that practices in labour and employment law? It might be an eye opener.

From an outside perspective, I don't see any wrongdoing by the bargaining agents. No more so, than any other even if there was.

I have however witnessed many failed attempts by pilots who thought they were versed in law.
(1) Might I ask in what way you think consulting with a labour lawyer might be eye-opening to me?

(2) Do you think the WestJet Pilot Seniority List will contain current Encore pilots on it?

(3) Do you think that the WestJet Pilot Seniority List gives current WJ pilots seniority credit for their service at Encore?
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Re: The End of the WPDL Confirmed

Post by The Tenth Man » Thu Dec 20, 2018 5:31 pm

DropTanks wrote:
Tue Jun 12, 2018 7:05 am
I’ll give you a clue as to why the WPDL wasn’t mentioned.....it’s because it’s not even in question.

For the smart people in the room: WJ will have a seniority list, Encore will have a list and the two will be tied together by DOH via a LOU. There you go. Now run along and let the grown ups talk.
Have the grown ups finished talking?
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Re: China_CAAC's Merged Threads

Post by Alcoholism » Fri Dec 21, 2018 6:59 am

Don't listen to the vast majority here John, they're blind to the truth, keep up the quality and quantity of posting, if fact, more of it. The squeaky mouse gets the grease.
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Re: China_CAAC's Merged Threads

Post by Schooner69A » Fri Dec 21, 2018 7:10 am

The "Shot in the foot" was a collective injury... Happened several months ago.


But, you knew that...
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Re: China_CAAC's Merged Threads

Post by The Tenth Man » Fri Dec 21, 2018 3:05 pm

My hat is off to ALPA negotiatiors. You have accomplished what I thought not possible.

I suppose at some point I shall issue a complete mea culpa, once I look at how exactly wrong I was WRT the One List, and the arguments made in that area.

To the Encore pilots and flowthroughs congratulations, I really didn’t see how this could be achieved.
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