WJ pilots reject tentative agreement

[Bede]

From what I see, the sentiment on the line is drastically different than it is on the forums. I can honestly say that the majority of guys and gals I have flown with have had a pretty balanced overall view. Most were not in favour of the TA and most are not proponents of the WPPA. The fact that only 57% of pilots voted against this TA to me is not a fair reflection of the sentiment towards the TA or towards changing our representation to a certified bargaining unit. I believe that it is possible many members voted YES despite their view of the TA to simply avoid the threat of a union.

I tend to agree with the balanced overall view. However, I don't think that your opinion about the 57% is accurate. I was initially against this TA and was quite vocal about for a number of reasons (pseudo-B-scale, etc.) but the revised TA addressed the majority of my concerns and I voted for it, but not to avoid the threat of a union. I would imagine that many of my colleagues were the same. Up until the revisions came out, I bet 90% were against. After the revisions it was 57% against. I do not believe that we need certification and I believe most of my colleagues would agree. The company has not conducted themselves in a manner where we need a union. Not even close.

[skyhigh]

A big reason of why I am a proponent for certification is the separate Legal Representation thats needed in case the worse should happen. No one starts out their pairing thinking that anything bad will happen but the reality is it only takes one to ruin your whole day. We live in such a litigious society, families of accident victims will sue first and ask questions later. The current lawyer is PAID by westjet and should a situation ever arise whereby there would be a conflict of interest between you and the corporation, take a wild guess as to what this lawyer will do...yup cut ties. Then what are you gonna do?? deplete your savings to save your bacon in court? Currently the WJPA (since its not a legal entity) cannot open a bank account to collect money from pilots to use for events like these. Also consider this, if Westjet fires you before you go to court, well then too bad for you because once again the lawyer tab is on YOU.

I don't know why there is such block for certification, what do you think is gonna happen? the WPPA isnt an outside 3rd party nut job **cough cough CUPE** but rather ordinary Westjet Line Pilots....the same pilots like you and I that still have to work and live in the same house and not BURN it down. I still haven't heard a proper argument against certification other than "its gonna bring Westjet down"....my question is HOW????

[rhythm101]

The executive for the WPPA is locked out of the site. They may not use the tools of the WJPA for their own campaign and agenda.

Whoa, that is a slippery slope, what ever happened to freedom of speech? I may not like what you have to say but I will defend your right to say it.

And skyhigh, this is very typical thought society, when people lack a coherent argument or are unable to provide intelligent debate they promote paranoia or create a whole host of increasingly ingenious ways of changing the subject.

[yycflyguy]

The executive for the WPPA is locked out of the site. They may not use the tools of the WJPA for their own campaign and agenda.

Whoa, that is a slippery slope, what ever happened to freedom of speech? I may not like what you have to say but I will defend your right to say it.

I agree with that. Selective sanctions and attempts to "control the message" usually end poorly for everyone. My suggestion is to keep open dialogue and explore ALL ideas. The present Federal government is in hot water for doing exactly that. You might not agree with an opinion but you should at least respect the right to voice it.

[7thirtyseven]

A big reason of why I am proponent for certification is the separate Legal Representation thats needed in case the worse should happen. No one starts out their pairing thinking that anything bad will happen but the reality is it only takes one to ruin your whole day. We live in such a litigious society, families of accident victims will sue first and ask questions later. The current lawyer is PAID by westjet and should a situation ever arise whereby there would be a conflict of interest between you and the corporation, take a wild guess as to what this lawyer will do...yup cut ties. Then what are you gonna do?? deplete your savings to save your bacon in court? Currently the WJPA (since its not a legal entity) cannot open a bank account to collect money from pilots to use for events like these. Also consider this, if Westjet fires you before you go to court, well then too bad for you because once again the lawyer tab is on YOU.

I don't know why there is such block for certification, what do you think is gonna happen? the WPPA isnt an outside 3rd party nut job **cough cough CUPE** but rather ordinary Westjet Line Pilots....the same pilots like you and I that still have to work and live in the same house and not BURN it down. I still haven't heard a proper argument against certification other than "its gonna bring Westjet down"....my question is HOW????

Im a little confused by the seperate legal interest that you feel is required. WestJet (outside of blatant illegal activity) will have it in its interest to defend you to the bitter end. To not do so exposes the company to so much grief in terms of it hireing you, training you, giving you the responsibility for both the aircraft and the people in it, that it WILL defend you.

[skyhigh]

Kinda like how Southwest had it in its interest to defend its pilots until one of them put the nose gear down first at La Guardia in July and is now fired and forced to defend his own lawsuits? For his sake I hope SWAPA has its own independent legal.

[M. Essaie]

I believe he in La Guardia was a she….

[teacher]

I don't know why there is such block for certification, what do you think is gonna happen? the WPPA isnt an outside 3rd party nut job **cough cough CUPE** but rather ordinary Westjet Line Pilots....the same pilots like you and I that still have to work and live in the same house and not BURN it down. I still haven't heard a proper argument against certification other than "its gonna bring Westjet down"....my question is HOW????

Exactly, it's not reponsible unions that bring companies down, companies do it themselves. I agree that greedy and unrealistic unions can bankrupt even the best run companies but in the end it's not the union that's doing it but those being represented by that union

[Bede]

A big reason of why I am proponent for certification is the separate Legal Representation thats needed in case the worse should happen. No one starts out their pairing thinking that anything bad will happen but the reality is it only takes one to ruin your whole day. We live in such a litigious society, families of accident victims will sue first and ask questions later. The current lawyer is PAID by westjet and should a situation ever arise whereby there would be a conflict of interest between you and the corporation, take a wild guess as to what this lawyer will do...yup cut ties. Then what are you gonna do?? deplete your savings to save your bacon in court? Currently the WJPA (since its not a legal entity) cannot open a bank account to collect money from pilots to use for events like these. Also consider this, if Westjet fires you before you go to court, well then too bad for you because once again the lawyer tab is on YOU.

This is a common concern which, until recently, I had as well. I did some reading about it and I now see the concern as unfounded. Let's say you twist some metal as a result of your own negligence. The passenger's families sue the company, you, Boeing, and everyone else under the sun. It is NOT WestJet that goes out and get's their lawyers on it, it is the insurance company. The insurance company retains a lawyer on your behalf. This lawyer will probably defend both you and the company. It is not up WestJet to decide legal strategy at this point, it is solely up to the insurance company which has a duty to defend. This is the essence of an indemnity policy. The company has no say whether to settle out of court or go to trial. They cannot demand the insurance company to stop defending you.

WestJet could decide to cross claim against you (very unlikely for employers to sue employees because it would imply vicarious liability). In this case, there would be a conflict of interest and the insurance company would then have to get you your own lawyer. It is the insurance company's duty to keep representing you.

It is also important that international legal conventions, such as the Montreal and Warsaw conventions makes it extremely difficult to sue airlines. I'll have to double check, but I believe that of 13 major law suits against US airlines in the period from 2006-2011 all were dismissed.

Kinda like how Southwest had it in its interest to defend its pilots until one of them put the nose gear down first at La Guardia in July and is now fired and forced to defend his own lawsuits? For his sake I hope SWAPA has its own independent legal.

That is exactly the situation I would want my own lawyer. If you get terminated at a union shop, your representation is a union rep, not a lawyer. The lawyer represents the union, not you. This is a really important distinction. If the rep screws up, the best you can do is sue the union for misrepresentation (good luck). You cannot then go get your own lawyer and sue for wrongful dismissal. In contrast, if you do not have a union, you get your own lawyer and sue for wrongful dismissal. You can claim general and punitive damages as well. http://www.canada.com/windsorstar/news/ ... c81bd0718e

[Impact]

Very well said Bede. Finally we have someone with an understanding of the legal process.

It's concerning when I hear the often trumpeted "independant legal" mantra by union supporters. It is nothing more than a battle cry of sorts.....something to rally the troops behind in order to create division and further an agenda.

It would seem that those who were hired at WJ were not concerned with this "independant legal representation" issue when they were in the application/interview process, yet all of a sudden it is one of their main sticking points......and a false one at that. Why is that?

It would also seem that those who purport the benefits of union representation within a legal setting (post incident) believe that an employer will not have the power to fire someone for willfull non-compliance. Newsflash: An employer always maintains the right to terminate an employee for willfull non-compliance and/or negligent behavior. Unions do nothing but try to insulate a person from assuming responsibility for their own willfull contravention of rules/regulations......the YYZ baggage handler who was caught committing theft being a prime example.

So for me, unions represent yet another avenue for which people will once again try to shed responsibility for their actions. This is a trend that is all too prevelant in society in general these days, and I do not condone it.

[flyer 1492]

On the back of my ALPA card it states:
"Following any accident,serious incident, or any event involving flight security, members are advised to make NO STATEMENT without first consulting with an ALPA Representative and or attorney. Under the above circumstances, a Member should make the following declaration:"Before making a statement or report of any kind, I wish to exercise my rights to consult with a representative, and/or attorney of the Air Line Pilots Association International.""

I would rather have my ALPA lawyer represent me rather than the one provided by my company.

Flyer 1492

[Impact]

On the back of my ALPA card it states:
"Following any accident,serious incident, or any event involving flight security, members are advised to make NO STATEMENT without first consulting with an ALPA Representative and or attorney. Under the above circumstances, a Member should make the following declaration:"Before making a statement or report of any kind, I wish to exercise my rights to consult with a representative, and/or attorney of the Air Line Pilots Association International.""

I would rather have my ALPA lawyer represent me rather than the one provided by my company.

Flyer 1492

Well, it would seem that this "independent legal" didn't quite work out so well for the SW pilot in Laguardia, did it. I understand that you may have some sort of false sense of security that you are somehow better represented by the vaunted big union lawyer (ALPA), however the bottom line is that if you were deemed to have caused the accident/incident due to willfull non-compliance, misconduct, or negligence, it is highly unlikely that ANY lawyer would be able to save your job if the Company were to decide to terminate you "for cause".

I worked for a shop that was represented by ALPA, so I understand your "I'll be taken care of by the union" mentality. It was a mirage of a security blanket for many....especially for those who were consistently tickling the edge of misconduct.

I don't miss being part of that "brother and sisterhood", but I sure do miss those glossy ALPA magazines jam packed with photos of our union brothers and sisters receiving awards, shaking hands with each other, and going to conventions.

[ODA]

A big reason of why I am proponent for certification is the separate Legal Representation thats needed in case the worse should happen. No one starts out their pairing thinking that anything bad will happen but the reality is it only takes one to ruin your whole day. We live in such a litigious society, families of accident victims will sue first and ask questions later. The current lawyer is PAID by westjet and should a situation ever arise whereby there would be a conflict of interest between you and the corporation, take a wild guess as to what this lawyer will do...yup cut ties. Then what are you gonna do?? deplete your savings to save your bacon in court? Currently the WJPA (since its not a legal entity) cannot open a bank account to collect money from pilots to use for events like these. Also consider this, if Westjet fires you before you go to court, well then too bad for you because once again the lawyer tab is on YOU.

This is a common concern which, until recently, I had as well. I did some reading about it and I now see the concern as unfounded. Let's say you twist some metal as a result of your own negligence. The passenger's families sue the company, you, Boeing, and everyone else under the sun. It is NOT WestJet that goes out and get's their lawyers on it, it is the insurance company. The insurance company retains a lawyer on your behalf. This lawyer will probably defend both you and the company. It is not up WestJet to decide legal strategy at this point, it is solely up to the insurance company which has a duty to defend. This is the essence of an indemnity policy. The company has no say whether to settle out of court or go to trial. They cannot demand the insurance company to stop defending you.

WestJet could decide to cross claim against you (very unlikely for employers to sue employees because it would imply vicarious liability). In this case, there would be a conflict of interest and the insurance company would then have to get you your own lawyer. It is the insurance company's duty to keep representing you.

It is also important that international legal conventions, such as the Montreal and Warsaw conventions makes it extremely difficult to sue airlines. I'll have to double check, but I believe that of 13 major law suits against US airlines in the period from 2006-2011 all were dismissed.

Kinda like how Southwest had it in its interest to defend its pilots until one of them put the nose gear down first at La Guardia in July and is now fired and forced to defend his own lawsuits? For his sake I hope SWAPA has its own independent legal.

That is exactly the situation I would want my own lawyer. If you get terminated at a union shop, your representation is a union rep, not a lawyer. The lawyer represents the union, not you. This is a really important distinction. If the rep screws up, the best you can do is sue the union for misrepresentation (good luck). You cannot then go get your own lawyer and sue for wrongful dismissal. In contrast, if you do not have a union, you get your own lawyer and sue for wrongful dismissal. You can claim general and punitive damages as well. http://www.canada.com/windsorstar/news/ ... c81bd0718e

Defiantly done your homework Bede. I'm not sure about the last part though. ALPA and ACPA both have multiple lawyers on staff just for representation so if you've really screwed up you should be asking for the lawyers opinion not a "reps". The union lawyers are held to the same standard as any other and I bet half of the time they end up representing people they don't think should "get off", but have to represent them anyway. That defiantly tends to give unions the bad name of protecting the weak. On the other hand I have met people who made honest mistakes and needed representation too. Every company has all sorts of "characters".

Either way it's not a perfect system. Worked in union and non union organisations and they both have pros and cons. At the end of the day most employers tend to get the employees they deserve whether they are unionized or not. Attitude tends to reflect leadership.

[Bede]

Defiantly done your homework Bede. I'm not sure about the last part though. ALPA and ACPA both have multiple lawyers on staff just for representation so if you've really screwed up you should be asking for the lawyers opinion not a "reps". The union lawyers are held to the same standard as any other and I bet half of the time they end up representing people they don't think should "get off", but have to represent them anyway. That defiantly tends to give unions the bad name of protecting the weak. On the other hand I have met people who made honest mistakes and needed representation too. Every company has all sorts of "characters".

Either way it's not a perfect system. Worked in union and non union organisations and they both have pros and cons. At the end of the day most employers tend to get the employees they deserve whether they are unionized or not. Attitude tends to reflect leadership.

You are correct, all these unions have lawyers, but it is not up to the general membership when to access them. At any arbitration, any union I have been aware of always sends their reps, not the lawyers. The lawyers take over once the union is in trouble.

I once sat in a Divisional Court observing a judicial review. The union lawyer was appealing an arbitrators decision to dismiss a wrongful dismissal grievance. The union had forgot about the poor guy's file and the grievance was dismissed for undue delay. The lawyer stepped in and was trying to correct the union's mistake. Sadly the JR was dismissed and the guy was left without a job.

I agree it's not a perfect system, and I'm not hell bent against trade unionism. You have to weigh the pro's and the con's and at WJ, the representation model we have is much better than a union model. The quality of some of the leadership could be a matter of debate but that's what elections are for.

[skyhigh]

Bede thanks for your insightful response. if an employee is fired BEFORE the lawsuit is named, then the insurance company will have no legal responsibility to defend you in court. Have you ever noticed that whenever someone asksSmall industry here folks. Being clever by trying only initials is still not going to cut it. Please NO NAME OR INITIAL as per rules of this board. Tks, Bandaid< on the WJPA forum regarding legal representation in case of an accident, they would NOT get a YES/NO answer?? That speaks volumes in itself.

[Duster]

Bede said:

"I agree it's not a perfect system, and I'm not hell bent against trade unionism. You have to weigh the pro's and the con's and at WJ, the representation model we have is much better than a union model. The quality of some of the leadership could be a matter of debate but that's what elections are for. "

Hello Bede, that statement is not quite correct. At present we actually have NO real pilot representation. WJPA/PACT is a legal fiction, existing (and funded) at the whim of the company.

Cheers

[Bede]

Bede thanks for your insightful response. if an employee is fired BEFORE the lawsuit is named, then the insurance company will have no legal responsibility to defend you in court. Have you ever noticed that whenever someone asks NC on the WJPA forum regarding legal representation in case of an accident, they would NOT get a YES/NO answer?? That speaks volumes in itself.

I disagree. Liability and indemnity insurance cover someone given their status at the date of claim (ie an accident). It's like a car accident. If you get sued a year after you get into an accident and you've sold the car and have no insurance, the insurance company you had still has a duty to defend. WRT to the WJPA legal's answer, I don't know the details, but I think he's referring to the WJPA legal fund, not the company's insurance policy. A pilot wouldn't necessarily need access to the legal fund if the insurance company is covering.

Hello Bede, that statement is not quite correct. At present we actually have NO real pilot representation. WJPA/PACT is a legal fiction, existing (and funded) at the whim of the company.
Cheers

You are correct. The WJPA is a legal fiction. But it works for me and the majority of pilots. Our employment rules are still covered under the common law of employment contracts and part 3 of the CLC, just not part 1 (the part that deals with unions).

I was discussing legal representation following an accident, not collective bargaining representation.

[skyhigh]

I have asked that names or initials not be used here. This is the second time this morning so you are getting a warning. Please stop.
Bandaid

[jjj]

I support banning the WPPA execs however as a tactical move I think it was a mistake due to the blow back.

As far these freedom of speech arguments go - I find them weak.

Enjoy your fundamental freedoms. I will not persecute you for your opinions but it's my choice as well whether or not I wish to listen to you.

A freedom of speech is not a carte blanche to say anything you want anytime or anywhere. That would be ridiculous.

Oh and BTW, posting on the WJPA forum or even this forum is not a right - it's a privilege.


JJJ

[skyhigh]

Bede do you have a reference to the liability and indemnity coverage of terminated employees you refer to above? I just want to read it and understand it for myself. Thanks

[Bede]

Hey Skyhigh,

On WestNet, see the Civil and Criminal Coverage for WestJetters. Just type in Civil coverage in the WestNet search bar. It's the first document returned.

I probably shouldn't cut and paste it on a public forum, but our insurance policy covers us for all civil claims as I explained earlier. For criminal charges occurring during the scope of our employment, the company reimburses us for legal costs which can be assessed by a third party. This set up is considerably different than having a company lawyer defend you.

As for if you are sued after you leave WJ, I will double check, but I am all but certain you would still be covered.

[Disco Stu]

At any arbitration, any union I have been aware of always sends their reps, not the lawyers. The lawyers take over once the union is in trouble.

Completely false.

There are pilot reps on the grievance committee who provide input, but arbitrations are run completely by the lawyers and professional labour relations staff.

[JSYK]

You are correct. The WJPA is a legal fiction. But it works for me and the majority of pilots. Our employment rules are still covered under the common law of employment contracts and part 3 of the CLC, just not part 1 (the part that deals with unions).

I was discussing legal representation following an accident, not collective bargaining representation.

Part 3 of the CLC is just the minimum employment standards for federally regulated employees. It does not give one ounce of legitimacy to these fictitious pilot agreements that WestJet has created. There is no such thing as a "common law of employment contracts" and Part 3 of the Code certainly does not define anything like that. Pilot agreement, pilot contract, whatever you call it, it is merely a Company policy document, amendable at their will with appropriate notice, it is not an actual collective bargaining agreement as defined by the Code.

Legal representation to protect a pilot from personal liability from the passengers is only one aspect of the situation. In these situations you may also need the assistance of a Labour Lawyer(s) to advocate/advise you regarding your status as an employee after the event, especially if there is any fault apportioned to the pilot(s), which there almost always is. Gross negligence or willful misconduct are legally much different than making mistakes. Some believe that any fault of the pilot(s) in an accident should automatically constitute gross negligence or willful misconduct and that, itself, is one very good reason why the pilot(s) need their own, fully independent counsel, if involved in an accident. No matter how nice your management/Company is, it will protect its own interests (i.e.; shareholders, public reputation, etc)and you can bet they will utilize their own counsel, in addition to the Insurance provider's, to advise them on what actions they must take.

[Bede]

Part 3 of the CLC is just the minimum employment standards for federally regulated employees. It does not give one ounce of legitimacy to these fictitious pilot agreements that WestJet has created. There is no such thing as a "common law of employment contracts" and Part 3 of the Code certainly does not define anything like that. Pilot agreement, pilot contract, whatever you call it, it is merely a Company policy document, amendable at their will with appropriate notice, it is not an actual collective bargaining agreement as defined by the Code.

You are correct about part 3, but like I said, part 3 still does cover us. I wanted to contrast that to part 1 which does not cover us.

As for the rest of the paragraph you are wrong. Without trying to sound too arrogant, may I suggest that you do some reading on employment law? The CLC is what is called statutory law, as is the Aeronautics Act, Trademarks act, etc. Common law covers thing such as the enforcement of contracts and is the law as developed by judges over time. In simple terms, it is legal tradition. Employment law has both a statutory aspect and a common law one. Even though the CLC does not mention it (statutes rarely mention common law principles), the common law of contracts is still very applicable to employment contracts. For more information you can start with google then move unto CanLii.

Contrary to your assertions, our pilot agreement, while not a collective bargaining agreement, is still an enforceable contract as is our offer of employment. In Farber v. Royal Trust Co. 1997 1 SCR 846, Gonthier J. wrote:

"In cases of constructive dismissal, the courts in the common law provinces have applied the general principle that where one party to a contract demonstrates an intention no longer to be bound by it, that party is committing a fundamental breach of the contract that results in its termination. …

Thus, it has been established in a number of Canadian common law decisions that where an employer unilaterally makes a fundamental or substantial change to an employee's contract of employment -- a change that violates the contract's terms -- the employer is committing a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herself constructively dismissed. The employee can then claim damages from the employer in lieu of reasonable notice…."

Contrary to your statements, the company cannot change the pilot agreement unilaterally without risking a claim for wrongful dismissal.

Legal representation to protect a pilot from personal liability from the passengers is only one aspect of the situation. In these situations you may also need the assistance of a Labour Lawyer(s) to advocate/advise you regarding your status as an employee after the event, especially if there is any fault apportioned to the pilot(s), which there almost always is. Gross negligence or willful misconduct are legally much different than making mistakes. Some believe that any fault of the pilot(s) in an accident should automatically constitute gross negligence or willful misconduct and that, itself, is one very good reason why the pilot(s) need their own, fully independent counsel, if involved in an accident. No matter how nice your management/Company is, it will protect it's own interests (i.e.; shareholders, public reputation, etc)and you can bet they will utilize their own counsel, in addition to the Insurance provider's, to advise them on what actions they must take.

This scenario is exceedingly rare, with a probability of occurrence nearing that of being hit by lightening. It is so rare that in such an event that I would much rather pay for my own lawyer in that rare event than pay $100-$200/month to a union just in case this scenario happened. Keep in mind any lawyer (company or union funded) may still not make a difference at the end of the day. Let's call a spade a spade- this is nothing more than fear-mongering in an attempt to get cards signed.

Some believe that any fault of the pilot(s) in an accident should automatically constitute gross negligence or willful misconduct ...

Who are these "some" people?

[JSYK]

Contrary to your statements, the company cannot change the pilot agreement unilaterally without risking a claim for wrongful dismissal.

Yes, Constructive dismissal is an argument, absolutely. It is, and your examples are, for INDIVIDUALS. And, although it is possible, it is still rare (even says that on the Justice website) that one can file for Constructive dismissal without quitting their job first. It is quite obvious that the right of employees to file constructive dismissal claims does not make collective bargaining agreements obsolete. Does nothing to help those unfairly denied an upgrade, does it?
It does not turn these "pilot agreements", where certification and the resultant "agency of authority" to bargain on others behalf do not exist, into some sort of legal equivalency. It is quite clear they remain as purely company policies by everything you have sited. There is no 3rd party, binding, dispute resolution mechanism. The employer has sole discretion. The employer may make changes provided they give affected employees adequate notice. They then have to accept those terms or, within 90s days file a complaint for Constructive Dismissal. I suspect that you already know that is not an equivalency to a typical grievance process when you have certified representation and a real collective agreement.

Question, if this TA had passed, couldn't all pilots who voted NO file constructive dismissal claims when it was implemented?
to quote some on the internal forum… "Hmmmmmmmmmm"