Ruling aganist USAPA to come tomorrow (7/17/09)

[MK82Man]

Reference the hearing in Judge Wake’s courtroom today 7/16/09.

The following summary is by a HP-FA. A former AWA FA. He was also at everyday of the trial. Plus a former paralegal. He has excellent summaries. This is his take on the hearing today.

I am back from the court hearing.

First, the injunction [against USAPA] will be issued by the close of business tomorrow. It was not stated but I also expect that the formal entry of judgment will be made at the same time. If so, USAPA's appeal clock will begin its 30-day countdown.

Now to my notes. As a preface I would expect that one side or the other will have a transcript available at some point, probably mid-week of next week. So, if you don't believe what I post you are free to fact-check me against the transcript when it becomes available.

The plaintiffs were represented, in person, by Marty Harper, Don Stevens, Katie Brown and Andy Jacob. Defendant USAPA was represented by Nick Grannath and Lucas Middlebrook, both telephonically. US Airways was represented, in person, by Robert Siegel.

The Court opened the discussion with the comment that it was seriously considering granting the plaintiffs relief and started the discussion with a discussion of Section 5(G) of the Transition Agreement. Before this ever really got going Grannath interrupted to lodge a standing objection to this becoming an evidentiary hearing and took a swipe at plaintiffs' counsel and Marty Harper stood and addressed the Court and was clearly upset by Grannath's assertions regarding the plaintiffs' counsel and a document filed earlier in the day. (Harper tends not to get upset but he was clearly irked at Grannath’s comments.)

The discussion again began and Grannath again interrupted the Court. Once that was done the Court asked Siegel about paragraph 5 (G) of the TA and Siegel stated that the paragraph had been added to the TA at the request of ALPA.

The discussion with Siegel continued with a discussion of the Bishop case (Bishop v. Air Line Pilots Association) that USAPA had contended provided a right to separate contracts for the represented group. Siegel, who argued that case to the 9th Circuit, stated that the Bishop holding does not provide a right to separate contracts, but does allow that to occur. Upon further questioning by the Court, Siegel stated that he had read the transcript of the July 7th hearing and that he did not agree with USAPA's counsel Lucas Middlebrook's position taken in connection with Bishopand separate contracts.

Siegel went on to say that when the East contract becomes amenable on 1/1/10, they may petition the NMB to intervene into the proceedings, but that NMB intervention was discretionary and not certain to occur. He also stated that the Company was aware of the draft injunction and had been properly noticed of it and had not objected to the proposed injunction. (This means that the company made a decision to not interject itself into the proposed injunction proceedings and could accept the terms of the proposed injunction.)

Siegel went on to state that the Company's position was that it wanted a single CBA and that it wanted to avoid labor unrest. Also, he stated that the Company accepts the Nicolau seniority list as being the seniority list for any negotiations.

The Court then began a long series of hypothetical questions. Grannath continued to be objectionable through this period. (If you don't believe me, read the transcript when it becomes available.)

Grannath, as USAPA's counsel, was then allowed to present USAPA's position. He stated that he had three areas of concern. Specifically:
1. Court infringement on the jurisdiction of the System Board;
2. Court infringement on the jurisdiction of the National Mediation Board; and,
3. Court infringement upon USAPA by way of the Railway-Labor Act.

Grannath believes that USAPA is at a labor stalemate and that the proposed injunction limits USAPA's potential means to coerce concessions from the Company. Grannath stated that the union wants interim benefit increases from the Company. The Court asked Siegel what the Company's position was regarding that and Siegel stated that the Company is uninterested in interim agreements and wants a sole and single Collective Bargaining Agreement.

(Sometime during this period of time, while Grannath was speaking, Judge Wake shook his head no at what he was hearing from Grannath. Also, the Court seemed to me to be becoming increasingly upset with the arguments put forth by Grannath.)

Grannath then yielded to Lucas Middlebrook who attacked Siegel's view of the Bishop case. (This was laughable considering that Siegel was on the winning side of that case and had argued that case to the 9th Circuit.)

Middlebrook also argued to the Court that the jury verdict and the subsequent Court's view of the actions of USAPA do not allow the Court to infer that broader and/or future misconduct can be inferred by the Court moving forward.

The Court then asked Middlebrook that is a separate agreement was to be hypothetically be reached, who would vote on it, the side it was negotiated for or the entire union. Middlebrook had not ready answer to that question and fumbled trying to come up with an answer, even at one point pointing to the BPR for guidance. Andy Jacob, with the Court's permission, interjected that any such agreement would be required to be voted on by the entire membership.

The Court closed the Hearing and indicated that an Order would be lodged by the end of the day tomorrow.

---------

OK, now a few impressions and observations.

One, at three different times during the Hearing widespread, but muted, laughter broke out in the Court. The Court never admonished quiet, probably because it is hard to not laugh at some of the things that were said today. I doubt that the transcript will note the laughter in the record, but it did happen.

Next, I continue to be amazed at USAPA's counsel and I don't mean this in a good way. Forget for a moment that I have stated that I believe the Addington class and the West as a whole have been victimized and are entitled to equitable relief in conjunction with their DFR case. Forget that I was an employee of AWA. Remember that I once worked in litigation. Seham and the members of his firm are, in my opinion, an embarrassment. They clearly are way outside the mainstream in their views and they are all objectionable in the way they practice law in front of at least this court. I don't know if this is how they practice in New York or Minnesota and I sure hope it isn't. They don't know when to shut up and have, in my opinion, made matters even worse.

I honestly believe that Judge Wake was trying to find any reason for diminishing the injunction that I expect to be issued tomorrow. I doubt that he was simply doing this to make a strong record in the case, but rather to be really, really fair to the defense, perhaps even to the partial detriment of the plaintiffs. However the folks at SSM&P never seemed to grasp that and continued to dig themselves in deeper and deeper. In fact they have now dug themselves in so deep that I honestly don't think that they have any chance to prevail on appeal. The last two Hearings have taken away any and all doubt concerning that and the 9th Circuit will see all the relevant portions of these last two transcripts.

OK, you can now remember that I was an employee of AWA and that I believe the Addington class were victimized in this whole mess.

I strongly suggest that all of the pilots, MIGS or not, get a hold of the transcripts of 7/7/09 and the one from today and read them, as well as the Order that the Court will issue by the end of the day tomorrow. Once you read all of this ask yourself whether or not this is really how union business should be transacted and what do you do going forward.

 

[gutshotdraw]

Once again, I smell a beyotch slap coming at USAPA. When will the crybaby Easties finally get it?

 

[Carl S.]

This is all just speculation! I have not recieved one thing from USAPA about any up coming ruling, just a bill for $2,500 that I threw in the shredder!!! All is silent from CLT, the PMI must be ready to send out the mother of all spin on Friday!

 

[get2flyin]

Trivial, argumentative, and meaningless input by MCDU in three, two, one.....

 

[Raoul Duke]

FO Bradford must be proud

 

[captairbusbb]

Looks like McDoosh and his alternative lifestyle partner just got another kick in the crotch from the Honorable Judge Wake.

Marty and your partner...........If you go to arbitration and lose, live up to your agreement. You were told repeatedly by Nicolaou that DOH was DOA.

We did lose the Susie ARBITRATION, but we said we would HONOR the outcome........We have. We move on. No appeal to the 9th circuit (which I'm sure you and your partner have dear hearts in), and no crying to the Supreme Court.

Scream and rant all you want. The USAPA experiment is about to implode.

Have a day......Cheers........bb

 

[ableone]

Order is out.


3. Scope & Nature of Injunctive Relief



USAPA will be ordered to negotiate in good faith for the implementation of the Nicolau Award, defending that award in negotiations and presenting it with the single new CBA to the pilots for ratification vote. This remedy was requested by Plaintiffs and pled in the First Amended Complaint. It promises to address the problem at hand without limiting the negotiation of independent employment terms. Implicitly, it also precludes the union from acting to undermine the Nicolau Award through collateral provisions in the agreement, and from failing to negotiate toward a single CBA that includes the Nicolau Award.

This injunction and order also illuminates USAPA’s untoward objectives,informing the Airline and union members what the union is not permitted to do. To date, the Airline has accepted the Nicolau Award and taken no bargaining position against it. The injunction to follow protects the Airline in that course. The West Pilots’ original claims against the Airline for breaching the Transition Agreement were dismissed for lack of subject matter jurisdiction for failing to state any facts that suggested the Airline was acting in concert with USAPA toward improper seniority objectives. The Airline’s incentive to avoid needless liability places another healthy constraint on USAPA’s bargaining.


USAPA will also be required to negotiate for the implementation of the Nicolau Award as part of any single CBA, unmodified by additional conditions and restrictions USAPA would place upon it. USAPA claims that it has the right to impose new conditions and restrictions, invoking the historical fact that ALPA exerted pressure on the West MEC to accept some form of “mitigation” of the Nicolau List. This very fact undercuts USAPA’s request. ALPA exerted pressure because it did not hold unilateral power to deprive the West MEC and the West Pilots of the arbitrated outcome. The West Pilots remain entitled to a union that will not abrogate the Nicolau Award without a legitimate purpose. Any waiver of that right must be “consensual.” [Ex. ## 1034 at 1; 1092; 1094.] A jury and this Court have found the union to be motivated by wrongful objectives, and abundant evidence supports that finding. It would indulge those objectives to allow USAPA to alter the Nicolau Award, and it would bestow upon USAPA an unlawful power that ALPA neither possessed nor asserted.18


Similarly, USAPA will be forbidden from negotiating separate CBAs for the two pilot groups, as it argues the Transition Agreement and the Railway Labor Act would have permitted it to do.19 Separate negotiations would invite highly probable wrongdoing, which would evade effective judicial remedy and burden the Plaintiffs with more ruinous litigation expense. The evidence shows not only USAPA’s wrongful motives but also willingness to conceal those motives and to bring about its seniority objectives by subterfuge. Prior to trial, USAPA negotiated only toward a single CBA for both pilot groups. It was only when the verdict was returned that USAPA announced to the Court its intent to seek separate agreements. [Doc. # 485, at 58, 78] When asked at oral argument several weeks later who held the right to ratify any separate CBA, USAPA could provide no answer. USAPA should not have the opportunity to strike disparate contract terms for the two pilot groups, making up by indirection for the failure to meet East Pilot seniority ambitions.

USAPA could state no legitimate union reason for pursuing separate agreements. It asserted only that the Court’s order would deprive the union of self-help remedies associated exclusively with those agreements. This is not so. The National Mediation Board certified both pilot groups as a single craft, that is, a single bargaining unit, in January 2008. US Airline Pilots Association, 35 N.M.B. 65, 78 (2008). The parties do not dispute that the West Pilots’ CBA is currently amendable, and the East CBA becomes so very soon. At that point, USAPA would be free to invoke Section 6 procedures for both CBAs, including the National Mediation Board’s mediation/arbitration process and possible self-help, in order to negotiate a single CBA that would alter wages and working conditions for the entire bargaining unit. Nothing in the Transition Agreement or the Railway Labor Act provides otherwise. Section V of the Transition Agreement specifies that no rights under the Railway Labor Act are waived, and it provides for additional private mediation regardless of what contracts are amendable. The injunctive remedy poses no harm to the Airline, which has at all times sought the operational integration that a single CBA would bring. If these conditions were to change, either party could seek focused relief from the permanent injunction.

The public interest favors this remedy as well. Separate labor agreements would materially deprive US Airways of the business benefits, now four years delayed, of a merger and combined operations, for no apparent reason but to enable continued unlawful discrimination within the union. To shut this door is part of the minimum necessary to end the game. The pilots must choose between the status quo and a single new CBA that incorporates the Nicolau Award with whatever improvements in wages and working conditions USAPA can negotiate for the East Pilots and the West Pilots alike.

The injunction will not address speculative examples of malfeasance. It will not restrain USAPA’s grievance machinery in order to thwart a hypothetical East Pilot plot to obstruct negotiations by filing seniority grievances. There is no evidence of any threat of a bad-faith grievance campaign. If it happens in the future, it may be the proper subject of enforcement or modification of the permanent injunction. The Court will expressly retain jurisdiction to modify, extend, or vacate relief, which should be adequate to meet any unforeseen events.

The injunction will not subject any new CBA to a majority vote of the West Pilots (as Plaintiffs pled) or to a majority vote of each separate pilot group (as USAPA requests as a fall-back). Both requests lack legal grounding. The USAPA constitution requires ratification of any new CBA by a majority vote of the entire membership. The allegations and proof contain nothing to suggest that USAPA’s representational structure amounts to a breach of its duty; USAPA indicates that the West Pilots have been and always will be free to join the union. To grant either of the suggested remedies would, without justification, countermand the election and certification of USAPA as collective bargaining representative. Plaintiffs’ proposal goes even farther because it would grant one group of pilots (the West Pilots) a unique power to veto a new proposed CBA for any reason, not just a cure for the violation of a legal right. Plaintiffs’ request that USAPA be enjoined to negotiate “with equal West Pilot representation” is too vague to be understood and will not form part of relief.



The Court also rejects USAPA’s bold request that the injunction dissolve upon a failed vote to ratify a new CBA containing the Nicolau Award. The duty of fair representation requires USAPA and any successor union to bargain for the implementation of the Nicolau Award. To limit relief as requested would enable the easiest of evasions of this duty. As already explained, the abusive wishes of the majority do not become legitimate simply because they are asserted in a ratification vote. A failed ratification vote gives the union no new power to accommodate a discriminatory majority.



IV. ORDER




The jury has found USAPA liable to Plaintiffs and the represented class. Damage proceedings remain for the six named Plaintiffs, except for the claims for general refund of union dues and fees, which have been denied as a matter of law. All claims in No. CV 08-1728 PHX-NVW have been adjudicated in favor of the Defendants. It is appropriate now to enter a permanent injunction and a final and enforceable judgment on all claims except Plaintiffs’ unadjudicated individual damage claims. The Court does so by a separate Partial Judgment and Permanent Injunction filed herewith. The Court expressly finds no just reason for delay in entry of that judgment and expressly directs that it be entered immediately.

IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Directed Verdict [doc.# 446] is denied as moot.



IT IS FURTHER ORDERED that Defendant USAPA’s Renewed Motion for Judgment as a Matter of Law [doc. # 567] and Motion for a New Trial [doc. # 590] are denied.

IT IS FURTHER ORDERED that Plaintiffs’ Motion to Supplement the Record [doc. ## 580, 582] is denied for the reasons stated in open court on the record.

DATED this 17th day of July 2009.

Neil V. Wake
United States District Judge

 

[m80drvr]

Ouch!!!!!!!

 

[Scope out RJ's]

Trivial, argumentative, and meaningless input by MCDU in three, two, one.....

Mcdoosh can't respond right now. He's working a double tonight at Wendy's. Seems his man love got hit by an injunction by the courts and mcdoosh will have to work harder to please the man of the house by working double shifts for a while.:laugh:

 

[johnsonrod]

Good thing Sully will have a new career writing books and doing speaking engagements for cash...