THE COURT: But Mr. Seham, USAPA's grievance, does it challenge the furloughing of West Pilots in advance of furloughing New-Hire East Pilots? New-Hire Seniority List, to be precise?
MR. SEHAM: I'm going to rephrase the question as I
understood it. The TA9 grievance argues that under the
transition agreement, all New-Hire Pilots must be furloughed before any pre-merger, East or West Pilots would get furloughed. And therefore, to our reading, this is the same -- it seeks the same remedy as Count 1 of the complaint.
THE COURT: Well, it seeks part of the same remedy but
only a small part of the same remedy. There's a lot more that the plaintiffs seek than that grievance seeks. But again, my question is: Is USAPA taking the position in that grievance that the company must furlough New-Hire Seniority Lists who are flying east flights and keep West Pilots, which would necessarily mean the West Pilots would fly the east flights that the New-Hire Seniority List East Pilots are flying now?
MR. SEHAM: It doesn't take the position that they
would necessarily have to be flying east flights. That is not something addressed by our grievance. Our grievance addresses only the issue of whether the company, at this point, may furlough pre-merger West Pilots for New-Hire Pilots. And the answer -- our position is they cannot do that.
THE COURT: I'm trying to understand your client's
position. Because the way I articulated the question is my
understanding of the practical impact of taking the position that you have said. Now, it's possible that my understanding is mistaken. But if -- as I read the company's brief filed last night, they have followed furlough policy from the preexisting Collective
Bargaining Agreements, one for east and one for west. And
that's what they feel obligated to do and entitled to do. And therefore, they say, they have furloughed West Pilots for cancelled or eliminated west flights at the same time that there are some New-Hire Seniority List East Pilots flying east flights. That's correct, Mr. Siegel, right.
MR. SIEGEL: That is correct.
THE COURT: And as I read your briefs, it appeared to
me that USAPA is challenging that as violative of the
Collective Bargaining Agreements. And I don't see how that
challenge could succeed without resulting in some New-Hire
Seniority List East Pilots being furloughed and West Pilots
flying in their place.
MR. SEHAM: In terms of operational issues, the
grievance does not focus on and does not address the
operational consequences.
THE COURT: Well, then I am having difficulty
understanding what your grievance means if it doesn't provide a practical consequence.
MR. SEHAM: The practical consequence is directed
toward who is subject to furlough at this point.
THE COURT: I really do not understand that. Are you
saying that East Pilots must be furloughed before -- some
New-Hire Seniority List East Pilots must be furloughed before some West Pilots? Yes or no?
MR. SEHAM: Yes.
THE COURT: So what happens if you file that grievance? What's going to happen to those New-Hire East Pilots? Do they stay on as extra work force? Is the company deprived of the right to lay off people?
MR. SEHAM: That is a possible -- that could be a
possible consequence.
THE COURT: I don't see that as even arguably a
possible consequence under the operative documents here. The company has the right to lay off pilots as economic
circumstances demand up to a certain minimum. So it seems to me that if your client is pursuing in good faith a grievance, you must be taking the position that some -- forgive me for being repetitive, but we have a lot of defined terms here -- New-Hire Seniority East Pilots are going to have to be laid off and West Pilots flying those flights? Are you not asserting that in your grievance?
MR. SEHAM: We are asserting in our grievance that
New-Hire East Pilots have to be furloughed prior to pre-merger West Pilots. As to where those pre-merger West Pilots then get assigned, that is an issue that we have not addressed in our
grievance.
THE COURT: All right. I don't want to quarrel with
you, but I don't feel like I'm getting a straight answer to my question. Because I don't see how you can eliminate furloughs without having somebody fly flights unless you are going to have pilots paid for not flying. So are you taking the position that new seniority East Pilots must be furloughed in favor of West Pilots meaning that West Pilots will be flying those flights in place of the furloughed New-Hire list East Pilots?
MR. SEHAM: If I might have -- because, frankly, this
is not an aspect that we have considered, may I confer?
THE COURT: Well, maybe we don't -- you can -- I think
maybe you can confer when we take a break, because this
question and the lack of an answer to this question seems to me to be a very important aspect to reaching a conclusion of whether USAPA's grievance is a good faith grievance at all. If you are not seeking to put some pilots out and other pilots in the cockpit, it may be nothing more than an appearance rather than a substantive -- joining in the substantive -- that aspect of the substantive claim of the West Pilots.
