August 2013 Pilot Discussion

[CallawayGolf]

Addressing "the facts"?...Well..."You'se" just put on the stand some gibbering idiot that merely wants to magically become "13 or 1400 numbers" senior to himself." True (Fact) or False?



I've no further questions for this witness. You may step down.

For those chronically out of context with the truth, I guess having no more questions is a good thing.

 

[mrbreeze]

For those chronically out of context with the truth, I guess having no more questions is a good thing.

Having no more questions for those who chronically never give a direct answer is normal. breeze

 

[EastUS1]

For those chronically out of context with the truth, I guess having no more questions is a good thing.

As is the case for any/all that are utterly unable to advance even the slightest fraction of anything even approaching a cogent argument. Go back to "sparta" and pout however long you see fit to. Umm...Don't try the holding-your-breath-'till you-turn-blue bit, as that won't much impress either.

 

[CallawayGolf]

Having no more questions for those who chronically never give a direct answer is normal. breeze

What direct question did I not give a direct answer for?

 

[CallawayGolf]

As is the case for any/all that are utterly unable to advance even the slightest fraction of anything even approaching a cogent argument. Go back to "sparta" and pout however long you see fit to. Umm...Don't try the holding your breath 'till you turn blue bit, as that won't much impress either.

Cogency of the sender requires cognition on the part of the receiver. Therein lies the problem you are having with my quite rational and factual communication.

 

[EastUS1]

What direct question did I not give a direct answer for?

No worries there. You did honorably provide a direct answer, naturally followed by predictable reams of wholesale "spartan" BS, equivocation and "justification", but no matter:

"Addressing "the facts"?...Well..."You'se" just put on the stand some gibbering idiot that merely wants to magically become "13 or 1400 numbers" senior to himself." True (Fact) or False?

CallawayGolf, on 27 October 2013 - 12:36 AM, said:

True,..."

PS: Given that "minority" individual was hired on the east side of the fence....well....you'll never hear me again disparaging west hiring standards. It sadly seems there may nowadays be precious little in the way of actual "standards" on either side of the Ole' Miss...or anywhere within the CONUS, for that matter. I'm reminded of a conversation from long ago, when UAL lost a lawsuit, and had to seek out "minorities" to hire. From a squadron mate then instructing in the UAL schoolhouse, and nearly verbatim transcript, as it wasn't material easily forgotten: "Brother...I've just been given Barbie the Pilot, with her whole 500 hours in single-engines..and I'm supposed to teach and qualify her for the line in a few weeks of sims!? Just F'n shoot me!...Or get us another pitcher, at least!" Even seeing his pain; I didn't shoot him (we'd have immediately needed to send someone else to IP school from the squadron, and no eager applicants were salivating at such, but that's another issue) but did oblige with the pitcher(s) and listening, and entirely sympathetic ears.

 

[mrbreeze]

What direct question did I not give a direct answer for?

Ok, I may have thrown a curve there, sorry. I will re-ask my question. (for some reason, I am unable to post things in more than one paragraph, so bear with me) Can you not see the hypocrisy in the fact that the West pilots VOTED FOR the MOU and are now suing, claiming anything that they possibly can in order to get their DFR prosecuted.......when in effect, they actually voted for it, being fully able to read and ask questions that were no more than the ability of a HS graduate to understand...........comparing that to the East pilot's situation where the TA was negotiated by a union that was unwanted by the majority of the East pilots.....this TA was an agreement between ALPA and management without the rank and file vote, and is an amendable, fluid document. .......the MOU was voted in by a large majority of all pilots and is not amendable. In other words, the MOU is a more solidly accepted document than the TA and it's origins. Can you not see that hypocrisy......yes or no? breeze ................ A hint....the hypocrisy is in the way the West pilots condemn the East pilots for trying to stand up for what is right, when in fact, the West pilots were more in control of their own destinations with their vote.

 

[mrbreeze]

C'mon......it's been 20 minutes and it's after midnight. I am 61 yrs old and the bed is calling. Your answer......YES or NO?

 

[CallawayGolf]

Ok, I may have thrown a curve there, sorry. I will re-ask my question. (for some reason, I am unable to post things in more than one paragraph, so bear with me) Can you not see the hypocrisy in the fact that the West pilots VOTED FOR the MOU and are now suing, claiming anything that they possibly can in order to get their DFR prosecuted.......when in effect, they actually voted for it, being fully able to read and ask questions that were no more than the ability of a HS graduate to understand...........comparing that to the East pilot's situation where the TA was negotiated by a union that was unwanted by the majority of the East pilots.....this TA was an agreement between ALPA and management without the rank and file vote, and is an amendable, fluid document. .......the MOU was voted in by a large majority of all pilots and is not amendable. In other words, the MOU is a more solidly accepted document than the TA and it's origins. Can you not see that hypocrisy......yes or no? breeze

Straight forward response, no I see no irony in the situation you describe. And I believe I already gave you a response on this.

Explanation - Irony to me is when a person finally gets what they wanted all along but then something disastrous and unforeseen happens just before any good can come from getting what you wanted.

So, it would be ironic if the west wanted the NIC, voted for the MOU and then found out that the NIC was guaranteed to be used in the merger wig the APA if only the MOU had failed.

It would be ironic if the east wanted majority to rule, and then suddenly found themselves in the minority and the majority decided that the NIC was the list.

Now on the subject of the MOU, it's not the MOU as a contractual instrument that is being questioned as to the DFR as it relates to the NIC; it is USAPAs actions related to the NIC as they prepare for the POR that is being brought into question in federal court. That's not ironic, it's expected given USAPAs entire history.

 

[mrbreeze]

Straight forward response, no I see no irony in the situation you describe. And I believe I already gave you a response on this.

Explanation - Irony to me is when a person finally gets what they wanted all along but then something disastrous and unforeseen happens just before any good can come from getting what you wanted.

So, it would be ironic if the west wanted the NIC, voted for the MOU and then found out that the NIC was guaranteed to be used in the merger wig the APA if only the MOU had failed.

It would be ironic if the east wanted majority to rule, and then suddenly found themselves in the minority and the majority decided that the NIC was the list.

Now on the subject of the MOU, it's not the MOU as a contractual instrument that is being questioned as to the DFR as it relates to the NIC; it is USAPAs actions related to the NIC as they prepare for the POR that is being brought into question in federal court. That's not ironic, it's expected given USAPAs entire history.

Gawd......I rest my case.....goodnight, boys......breeze

 

[EastUS1]

C'mon......it's been 20 minutes and it's after midnight. I am 61 yrs old and the bed is calling. Your answer......YES or NO?

You woosie!....Umm...Wait...Snore/etc....Sigh! You've a point sir. I'm gone as well. I'll leave these kids to their "Brave New World" for now.

 

[snapthis]

For those chronically out of context with the truth, I guess having no more questions is a good thing.

The court case is very confusing for some to follow. Judge Silver seems to get it and that is all that matters.

"THE COURT: What you're saying is that that indicates an intent by USAPA through Mr. Szymanski that there was no intent to, in any way, comply with the Court's order that required that they go to the bargaining table with at least a consideration of the Nicolau agreement. Is that what you're saying that I have to draw from all of this?"

The analysis by West pilots which I will point to one in particular shows the reason for the optimism.

"I've done everybody who hasn't read the day one transcripts a favor. I copied (and painstakingly reformatted for ease of reading - I hope I am starting a trend!) Pat Szymanski's motion for a verdict (I guess immediately, right there) on whether AOL had met the burden of proof for a DFR violation. Andy Jacob answered with the eloquence of Lincoln debating Douglas, and his argument has me feeling very confident.

The main reason I am encouraged is this. (I hope I understand Andy correctly, but that's why I included his entire speech.)

Even if ALL America West Pilots EXCEPT FOR ONE voted for the MOU and if all those pilots voted for it because they were OK with the Nic being discarded, that ONE PILOT still has the right to sue to have the Nicolau enforced. Since AOL is the class representative for ALL AWA pilots, they can then sue on behalf of THAT ONE PILOT.

Additionally, I believe Andy said that for the Nicolau to be waived, EVERY AWA PILOT has to sign a waiver specifically waiving his or her rights to the Nicolau. Every last one.

To repeat - nobody can vote this away from them. Obviously, this nullifies anything the bargaining agent thinks the MOU says, or what it puts out in updates, says at road shows, etc. For a pilot to waive his right, he has to specifically sign that right away."


Starting at Page 234, Line 10, Day 1 Transcript:

"Is there a motion?

MR. SZYMANSKI: Yes, Your Honor. We do make a motion for a verdict at this point on the grounds that they have not established that there's a breach of a duty of fair representation.

THE COURT: On what basis?

MR. SZYMANSKI: On the basis, Your Honor, that the evidence up to this point shows that USAPA did indeed negotiate a Memorandum of Understanding that had substantial benefits for its pilots; that if that -- that that was based on the fact that the company had -- there's a stipulation -- there are stipulations of fact, in addition to the testimony that we've given here today, that has been given up to this point in this case; that at the outset of the negotiations, US Airways, and then later the other parties, made it clear that in their opinion, the dispute concerning seniority would only be treated through the McCaskill-Bond process that was associated into the Memorandum of Understanding; that that Memorandum of Understanding included substantial benefits for our pilots that would not otherwise be available; that the union informed, through the various materials that are in the record as exhibits and the stipulated facts, all of the pilots concerning the actual situation; that the pilots knew that USAPA opposed the Nicolau Award.

They knew that the Nicolau Award was not part of the Memorandum of Understanding. They knew that the Memorandum of Understanding was, in fact, neutral with respect to seniority and, therefore, did not bring the Nicolau Award into effect or change the preexisting positions of any of the parties. And that based on that, the membership voted 75 percent to 25 percent to approve the Memorandum of Understanding. In that situation, the union's decision to go forward, not to put the Nicolau Award into the Memorandum of Understanding was not a breach of the duty of fair representation. It was a reasonable decision that the union made in that situation to go forward and to do that. On that basis, Your Honor, we would move.

THE COURT: Response?

MR. HARPER: Mr. Jacob will handle that for us, Your Honor.

MR. JACOB: Perhaps had the airline dealt with any union other than this one, it would not have asked them to put into their contract that the federal law would apply. All that the first draft of the MOU said was that the parties would comply with the McCaskill-Bond statute. We do not take issue that there's an MOU. We take issue that USAPA put language into the MOU that served no purpose other than to negate the seniority integration provisions in the 2005 Transition Agreement.

There was no reason for the MOU to address that at all.

All that federal law required was that the integration of the US Airways pilots and the American pilots would comply with McCaskill-Bond. That is true whether the contract says that or not. Airways did not condition any of the benefits in MOU II on USAPA agreeing to in some way change the existing seniority integration provision for East and West in the 2005 Transition Agreement.

THE COURT: Let me stop you. There were -- in the second MOU, there were no additional benefits as a consequence of that new MOU that had been negotiated in response to the objections that were made by the board?

MR. JACOB: No. There were.

THE COURT: There were additional ones?

MR. JACOB: There were benefits.

THE COURT: Let me go on and ask you one other question about all of this. I think Captain Holmes testifies that at least he voted for it because of the pay raise.

MR. JACOB: Absolutely. There were improvements.

THE COURT: And despite the fact that he was aware of the change in the seniority provision; is that right?

MR. JACOB: That's right. MOU II is a stew. There were a lot of things in it. None of the beneficial things that were put into it after MOU I were conditioned by the airline saying we'll give you this only if you put paragraph 10H in. They said the $40 million if you ratify. They said the retrospective pay if the entire BPR votes in favor of the MOU. Those were quid pro quo exchanges.

MOU II is better than MOU I. But none of the benefits in MOU II were there in exchange for paragraph 10H. We've heard no evidence that everything wouldn't have gone through the same if paragraph 10H was not there. Paragraph 10H does not even say what they say today it says.

It did not say we will resolve the East/West seniority dispute according to McCaskill-Bond. It says seniority will be integrated according to McCaskill-Bond. If they wanted to make it clear, and they owe a duty to their pilots to make it clear that we're all agreeing now that the 2005 Transition Agreement, seniority integration no longer applies, they could have said that. But even if the MOU said that, it would have been wrong because who gets the right to agree to that?

You heard that there are 600 pilots who don't belong to USAPA, who don't have a vote. Each of those pilots has a right to be fairly represented. Each of those pilots has a right to have the Nicolau Award be implemented unless USAPA changed the contract obligation in the TA and had a rationally related legitimate union purpose to do so.

The fact that hundreds of thousands of pilots voted in favor of the MOU can't possibly waive the claim of 600 pilots who didn't even have a vote. The fact that they didn't make clear what –

THE COURT: Let me ask you this. It hasn't come through to me as unequivocal that without the change in the seniority provision, 10H, I believe, that that was not something that was negotiated. In other words, if that had not been changed, then the company would not have agreed to the benefits that were provided.

MR. JACOB: No. The company had made no issue of that. The company didn't write 10H. USAPA wrote 10H. We spent a week in Charlotte taking depositions trying to get someone to explain to us who asked for 10H? Why was it written? What were you trying to accomplish when you wrote 10H? Everybody said, "I don't know. I don't know where it came from. I don't know who wrote it."

Well, who would know? Pat Szymanski would know. Mr. Hummel didn't know. Mr. Bradford didn't know. The chairman of the NAC didn't know. The chairman of the Merger Committee didn't know. 10H was put there, the language was abstruse at best. The West Pilots who had a vote, which is not all of the West Pilots, were led to believe that they would still have a DFR claim --

THE COURT: Okay. So let's stop there. The West Pilots, you mean the road trip to Phoenix? Is that when they were expressly or impliedly told by Mr. Szymanski that this was neutral in contrast to what he said by the testimony of the witnesses that you've offered, that the Nicolau agreement was dead or the arbitration agreement is dead, decision?

MR. JACOB: Not just the road trip. I mean, there are thousands of pilots. They work. They are all over the country. Mr. Scherff, who you heard, lives in Alabama. I don't know how many pilots went but not everybody went.

THE COURT: What you're saying is that that indicates an intent by USAPA through Mr. Szymanski that there was no intent to, in any way, comply with the Court's order that required that they go to the bargaining table with at least a consideration of the Nicolau agreement. Is that what you're saying that I have to draw from all of this?

MR. JACOB: That plus more. They have just been focused on how can we get the date of hire list in? How can we keep the Nicolau list out? That has been the only question.

THE COURT: The last -- the timing has to be from the time of my order and my order said that they were -- and it was expressed that it was a powerful decision and they could not ignore it in negotiations in going forward during the merger agreements or the merger negotiations.

So now, that is where we start. What do we have?

MR. JACOB: They did just the opposite. The starting point, prior to your order, was MOU I where they said McCaskill-Bond will be followed. Big deal. They have to follow it. There was no language in MOU I that impacted the 2005 transition agreement and that is because they knew that if they made a contract that abrogated the obligations in the 2005 TA, we would have a definite ripe claim against them. When your order came out, they heard it saying we don't have to worry about a ripe claim. We can make a contract to change the 2005 TA because the judge said we have a legitimate purpose.

We're free to change the contract. We won. It's over.

So all they had to do was say, "How can we put the language into the MOU that we can entice the West Pilots to vote for it, that we can get rid of the TA, be done with it because the judge said we can do that?"

Yeah, at some point the West pilots are going to sue us but we're going to win because the judge said we can do it.

They didn't hear from you that they had to do anything affirmative. What they heard from you was now they are free to do what they want. They have never tried to stand back and say, "Let's do something that is a neutral fair process." Now, I'm not saying that they would even be allowed to do this, but they could have said, "Let's give this to a neutral arbitrator with no preconditions, hear the equities of the arguments on both sides and we'll stick by what that arbitrator says." They have never offered anything like that.

They have just from the start said with a predefined outcome, it's going to be the date of hire. What is neutral about the language, what they tried to accomplish, what they call neutral is that there were no longer constraints on the BPR. They can do what they want. Our depositions, witness after witness said the purpose of 10H, looking back at it now -- we don't know who wrote it. We don't know why they wrote it but we read it as saying the TA seniority provisions no longer apply. The BPR decides by majority rule and the BPR is going to put in the date of hire list because the constitution says that they have to because they had a campaign after your order came out to raise the expectations of the East Pilots that you said they can ignore the Nicolau and put date of hire in. We just showed you a fraction of what they wrote. If it was impossible for the East Pilots to vote to ratify MOU II unless they put language in that they could tell them the Nic is dead. It's because for two, three months before then, they told them that you ruled that, in essence, the Nic is dead. So how could they, after telling them that, not tell them that the MOU makes the Nicolau dead?

This was not a referendum on the Nicolau. Even if it was, that's not how you decide something like this. You heard them say they are worried that they are going to merge with the APA pilots and they outnumber them two to one. Well, the East pilots outnumber the West Pilots two to one.

They don't want seniority with the APA pilots decided by majority rule. McCaskill-Bond says it shouldn't be. They were part of an organization that said it shouldn't be. It wasn't decided that way. They need a legitimate purpose to deviate from that.

The Rakestraw case handles this very nicely. When you take an action like this, they say a rational person has to be able to see that it has a relationship to a legitimate union purpose. They talk about rationality defining the scope of what they can do like it's a psychiatric dipstick, that all you have to do is show that they are sane and they can do whatever they want.

That is not the test.

Rationality has an element of it's an objective standard and it has to relate to a legitimate union purpose. A legitimate union purpose, the purpose of the union is to get more for the group as a whole. You can either get more pay or benefits or leverage in a future contract. You can agree to something if that keeps the company from shutting down, but it's not a legitimate purpose just to favor a politically powerful faction over a weaker faction. You heard them say, "We've done our job by giving equal representation to the West side." Democracy controls union affairs subject to the duty of fair representation. It doesn't trump it. The fact that West Pilots get votes if they join. The fact that the West BPR has got three members doesn't mean that the BPR can do whatever majority rule says to do.

There's no examples where an internal seniority dispute is settled by the vote of the majority.

And this whole business of saying that the MOU vote settled, this is just taking it a step down that even if 70 percent of the West Pilots voted for the MOU, there's still 30 percent of the West Pilots who were so disgusted that they pay the equivalent of dues but they won't belong to the union. They don't get a vote.

Nobody gets to vote their rights away. If every single West Pilot said, "We give up the Nicolau," then there's no DFR claim. But if one pilot says, "I've got the right to the Nicolau," the others can't vote that pilot's right away.

Those graphs that we showed were shown just to give you an idea of the magnitude of this, that this isn't the problem that an individual pilot can come up and say, "Well, I was harmed X number of dollars if we don't use the Nicolau." It's too complicated. How do you figure out which pilot was harmed? How do you figure out how much they were harmed?

You can't fix this with damages. The problem is too great.

The only fair way to deal with this, the only way to give pilots their right to be fairly represented is to say the union can't change the 2005 TA without a legitimate purpose. They did not have a legitimate purpose to put 10H into the MOU. They had a legitimate reason to make the MOU as a whole but it doesn't mean that every provision in it has a legitimate purpose. If it did, every time you have a new contract you could put all of the bad things you wanted into it and say, "Well, there's more pay so we can make short people get paid less." Well, no, you can't because unless the more pay comes in because the company insists for some reason that shorter people get paid less, you've got no business putting that in.

We've heard no evidence that any of the positive aspects MOU II were given by the company in exchange for 10H. There's no reason to put 10H in there. McCaskill-Bond says how you integrate US Airways and American. They can't change that. The only reason that 10H was put in there was trickery.

THE COURT: Okay. Nonetheless, whether it was the company or whether it was USAPA or whether it was the – I think it's the NAC group or the board that managed to get these benefits, still, those who could vote who were members of USAPA who were West Pilots voted in favor of it?

MR. JACOB: Absolutely. And we're not saying that the MOU is void and we're not even saying what would we do if 10H said, by voting to ratify this, I hereby give up my DFR rights to the Nicolau. That would be a different question. We're saying what does 10H do, worded the way it is, to the DFR rights? Should we let them twist a meaning out of 10H, which is not, obviously, there to function as a waiver of DFR rights even for the pilots that did vote. Surely it can't waive the rights of pilots who didn't have the right to vote.

But should it be treated as a waiver when waiver has to be knowing and voluntary? And then bear in mind this isn't waiver between two parties at arm's length. This is waiver where one party owes a duty of fairness to the other party. If they are asking the West Pilots to waive something, shouldn't they present it to them in a way that is fair and clear? Shouldn't they write and shouldn't they go to the West side and say, "We want to make clear -- this is a good contract but if you vote for this contract, we've just put something in it which means you don't have a claim to implement the Nicolau." Vote for it that way or don't vote for it but understand that is what it's going to be.

We have evidence in our deposition transcripts. We have several witnesses where any instructions given to West Pilots how they should vote if they want to protect their right to the Nicolau and the answer was no. We gave no instruction to a West Pilot how do they vote to protect their rights. This was trickery. This was put in for no reason other than to meet the demands of the East pilot majority.

They thought they were being cute that the Ninth Circuit says, "You don't have a ripe claim until you ratify a contract," and they want to have it so that the act of ratification defeats the claim on the merits. It's their argument they have had. You are too early. You too late. Surely there should be a time that the West Pilots can come into court, hold the union accountable and say, "Did you have a legitimate reason to walk away from the 2005 TA?" They have not shown a legitimate reason at any point in time. They did not have a legitimate reason for the last thing that they did which was putting that language into the MOU that served no purpose other than to take away the West Pilot rights.

THE COURT: Thank you. All right. I'll take the matter under advisement."

 

[Barrister]

You may not subscribe to it, but MDA pilots were not mainline so the 17 years of unbroken service isn't accurate. Such a pilot was furloughed and had no active mainline seniority status while the west new hire had a more senior status. Not so shocking when you look at things objectively. In fact, it actually makes perfect sense.

Look at the NIC list NOT furloughed list...not just a few but lots of 17 year NEVER FURLOUGHED guys were junior to your less than 1 year new hires......YOU ARE DOOMED UNTILYOU ADMIT THIS IS A TRAVESTY......NICDOA....NPJB

 

[flyingskier]

Of course it happened at the worst possible time for the east. Two bankruptcies in five years and the latter of the two had the legacy US operations on the doorstep of liquidation. That's not a dig or a taunt just the facts of the situation. The arbitrator did what he thought was the most fair method of integration given the facts of the two companies and the two seniority lists.

It really doesn't matter what any of us think is fair because that is not an objective or quantifiable measurement. What matters is that the arbitrator followed the process and issued a binding award that by all intents was to be the last and final word on the matter. What the east has done since then cannot be justified, except that as I mentioned last night if you wanted to sue ALPA to see if it truly did violate the TA and the merger policy. If that had happened and the east won some concessions on the NIC, I would fully support that, but that's not what happened, and by electing USAPA and stripping the west of separate representation, a mess was created the likes of which no one has ever seen before and certainly wasn't anticipated by anyone, even I dare say the founders of USAPA.

All that being said, where do you believe you should have been placed on a combined seniority list relative to an active west pilot?

The arbitrator may have followed the process but his award was no where close to the tenets provided for in the ALPA merger guidelines. Westies always say that each merger turns on its own, not when Nic is the arbitrator. The Nic award in the US and Shuttle merger used the exact same methodology as the East/West Nic award. Give US X number of slots credited for the wide bodies then slot based on a ratio, staple furloughs to the bottom. Nic just explained the result of the East/West award differently, it was the same methodology as the shuttle award. He was lazy, he issued a horrible award based on what he felt was minimally acceptable under Alpa's guidelines. It is not the final word and most likely will never be used as a seniority list at any airline. What the East has done was our only choice, justifiable is an understatement. When the award is as screwed up as the Nic is, it can not, has not and will not be the final word.

The Nic award placed 650 guys younger then me ahead of me. Pre merger, I would have retired in the top 10. LOS, placed me in the top 100 at retirement, Nic top 700. Nic would have forever kept me out of the left seat on the W/B. How can you say that is not a wind fall? Oh yea, that snap shot in time theory...

The east merger committee's position in the SLI was LOS, it was not DOH. LOS with conditions and restrictions that kept me from bidding Phoenix for a period of 10 years at minimum, would have resulted in the fairest award for both sides. The C & R's would have had to be fairly extreme due to the extreme differences in the lists. Future furloughs, W/B flying, narrow body CAP upgrades, capturing attrition could have all been addressed in the C & R's, if Nic would have done his job. He did not.

As far as this idea that the bottom guy on the West list is equal to the bottom guy on the East list (relative seniority), why don't you ask the flying public what they would prefer, a guy with one month of experience flying at a major airline or a guy with 17, 15, 12, 10, 5 years experience.. Who would they pick to be their pilot? No flame bait, serious question. I would bet the results of the pol would be for 90%+ for the 5 - 17 year guy… even if he was furloughed at the time of the merger.

Skier

 

[Phoenix]

The court case is very confusing for some to follow. Judge Silver seems to get it and that is all that matters.

"THE COURT: What you're saying is that that indicates an intent by USAPA through Mr. Szymanski that there was no intent to, in any way, comply with the Court's order that required that they go to the bargaining table with at least a consideration of the Nicolau agreement. Is that what you're saying that I have to draw from all of this?"

The analysis by West pilots which I will point to one in particular shows the reason for the optimism.

"I've done everybody who hasn't read the day one transcripts a favor. I copied (and painstakingly reformatted for ease of reading - I hope I am starting a trend!) Pat Szymanski's motion for a verdict (I guess immediately, right there) on whether AOL had met the burden of proof for a DFR violation. Andy Jacob answered with the eloquence of Lincoln debating Douglas, and his argument has me feeling very confident.

The main reason I am encouraged is this. (I hope I understand Andy correctly, but that's why I included his entire speech.)

Even if ALL America West Pilots EXCEPT FOR ONE voted for the MOU and if all those pilots voted for it because they were OK with the Nic being discarded, that ONE PILOT still has the right to sue to have the Nicolau enforced. Since AOL is the class representative for ALL AWA pilots, they can then sue on behalf of THAT ONE PILOT.

Additionally, I believe Andy said that for the Nicolau to be waived, EVERY AWA PILOT has to sign a waiver specifically waiving his or her rights to the Nicolau. Every last one.

To repeat - nobody can vote this away from them. Obviously, this nullifies anything the bargaining agent thinks the MOU says, or what it puts out in updates, says at road shows, etc. For a pilot to waive his right, he has to specifically sign that right away."


Starting at Page 234, Line 10, Day 1 Transcript:

"Is there a motion?

MR. SZYMANSKI: Yes, Your Honor. We do make a motion for a verdict at this point on the grounds that they have not established that there's a breach of a duty of fair representation.

THE COURT: On what basis?

MR. SZYMANSKI: On the basis, Your Honor, that the evidence up to this point shows that USAPA did indeed negotiate a Memorandum of Understanding that had substantial benefits for its pilots; that if that -- that that was based on the fact that the company had -- there's a stipulation -- there are stipulations of fact, in addition to the testimony that we've given here today, that has been given up to this point in this case; that at the outset of the negotiations, US Airways, and then later the other parties, made it clear that in their opinion, the dispute concerning seniority would only be treated through the McCaskill-Bond process that was associated into the Memorandum of Understanding; that that Memorandum of Understanding included substantial benefits for our pilots that would not otherwise be available; that the union informed, through the various materials that are in the record as exhibits and the stipulated facts, all of the pilots concerning the actual situation; that the pilots knew that USAPA opposed the Nicolau Award.

They knew that the Nicolau Award was not part of the Memorandum of Understanding. They knew that the Memorandum of Understanding was, in fact, neutral with respect to seniority and, therefore, did not bring the Nicolau Award into effect or change the preexisting positions of any of the parties. And that based on that, the membership voted 75 percent to 25 percent to approve the Memorandum of Understanding. In that situation, the union's decision to go forward, not to put the Nicolau Award into the Memorandum of Understanding was not a breach of the duty of fair representation. It was a reasonable decision that the union made in that situation to go forward and to do that. On that basis, Your Honor, we would move.

THE COURT: Response?

MR. HARPER: Mr. Jacob will handle that for us, Your Honor.

MR. JACOB: Perhaps had the airline dealt with any union other than this one, it would not have asked them to put into their contract that the federal law would apply. All that the first draft of the MOU said was that the parties would comply with the McCaskill-Bond statute. We do not take issue that there's an MOU. We take issue that USAPA put language into the MOU that served no purpose other than to negate the seniority integration provisions in the 2005 Transition Agreement.

There was no reason for the MOU to address that at all.

All that federal law required was that the integration of the US Airways pilots and the American pilots would comply with McCaskill-Bond. That is true whether the contract says that or not. Airways did not condition any of the benefits in MOU II on USAPA agreeing to in some way change the existing seniority integration provision for East and West in the 2005 Transition Agreement.

THE COURT: Let me stop you. There were -- in the second MOU, there were no additional benefits as a consequence of that new MOU that had been negotiated in response to the objections that were made by the board?

MR. JACOB: No. There were.

THE COURT: There were additional ones?

MR. JACOB: There were benefits.

THE COURT: Let me go on and ask you one other question about all of this. I think Captain Holmes testifies that at least he voted for it because of the pay raise.

MR. JACOB: Absolutely. There were improvements.

THE COURT: And despite the fact that he was aware of the change in the seniority provision; is that right?

MR. JACOB: That's right. MOU II is a stew. There were a lot of things in it. None of the beneficial things that were put into it after MOU I were conditioned by the airline saying we'll give you this only if you put paragraph 10H in. They said the $40 million if you ratify. They said the retrospective pay if the entire BPR votes in favor of the MOU. Those were quid pro quo exchanges.

MOU II is better than MOU I. But none of the benefits in MOU II were there in exchange for paragraph 10H. We've heard no evidence that everything wouldn't have gone through the same if paragraph 10H was not there. Paragraph 10H does not even say what they say today it says.

It did not say we will resolve the East/West seniority dispute according to McCaskill-Bond. It says seniority will be integrated according to McCaskill-Bond. If they wanted to make it clear, and they owe a duty to their pilots to make it clear that we're all agreeing now that the 2005 Transition Agreement, seniority integration no longer applies, they could have said that. But even if the MOU said that, it would have been wrong because who gets the right to agree to that?

You heard that there are 600 pilots who don't belong to USAPA, who don't have a vote. Each of those pilots has a right to be fairly represented. Each of those pilots has a right to have the Nicolau Award be implemented unless USAPA changed the contract obligation in the TA and had a rationally related legitimate union purpose to do so.

The fact that hundreds of thousands of pilots voted in favor of the MOU can't possibly waive the claim of 600 pilots who didn't even have a vote. The fact that they didn't make clear what –

THE COURT: Let me ask you this. It hasn't come through to me as unequivocal that without the change in the seniority provision, 10H, I believe, that that was not something that was negotiated. In other words, if that had not been changed, then the company would not have agreed to the benefits that were provided.

MR. JACOB: No. The company had made no issue of that. The company didn't write 10H. USAPA wrote 10H. We spent a week in Charlotte taking depositions trying to get someone to explain to us who asked for 10H? Why was it written? What were you trying to accomplish when you wrote 10H? Everybody said, "I don't know. I don't know where it came from. I don't know who wrote it."

Well, who would know? Pat Szymanski would know. Mr. Hummel didn't know. Mr. Bradford didn't know. The chairman of the NAC didn't know. The chairman of the Merger Committee didn't know. 10H was put there, the language was abstruse at best. The West Pilots who had a vote, which is not all of the West Pilots, were led to believe that they would still have a DFR claim --

THE COURT: Okay. So let's stop there. The West Pilots, you mean the road trip to Phoenix? Is that when they were expressly or impliedly told by Mr. Szymanski that this was neutral in contrast to what he said by the testimony of the witnesses that you've offered, that the Nicolau agreement was dead or the arbitration agreement is dead, decision?

MR. JACOB: Not just the road trip. I mean, there are thousands of pilots. They work. They are all over the country. Mr. Scherff, who you heard, lives in Alabama. I don't know how many pilots went but not everybody went.

THE COURT: What you're saying is that that indicates an intent by USAPA through Mr. Szymanski that there was no intent to, in any way, comply with the Court's order that required that they go to the bargaining table with at least a consideration of the Nicolau agreement. Is that what you're saying that I have to draw from all of this?

MR. JACOB: That plus more. They have just been focused on how can we get the date of hire list in? How can we keep the Nicolau list out? That has been the only question.

THE COURT: The last -- the timing has to be from the time of my order and my order said that they were -- and it was expressed that it was a powerful decision and they could not ignore it in negotiations in going forward during the merger agreements or the merger negotiations.

So now, that is where we start. What do we have?

MR. JACOB: They did just the opposite. The starting point, prior to your order, was MOU I where they said McCaskill-Bond will be followed. Big deal. They have to follow it. There was no language in MOU I that impacted the 2005 transition agreement and that is because they knew that if they made a contract that abrogated the obligations in the 2005 TA, we would have a definite ripe claim against them. When your order came out, they heard it saying we don't have to worry about a ripe claim. We can make a contract to change the 2005 TA because the judge said we have a legitimate purpose.

We're free to change the contract. We won. It's over.

So all they had to do was say, "How can we put the language into the MOU that we can entice the West Pilots to vote for it, that we can get rid of the TA, be done with it because the judge said we can do that?"

Yeah, at some point the West pilots are going to sue us but we're going to win because the judge said we can do it.

They didn't hear from you that they had to do anything affirmative. What they heard from you was now they are free to do what they want. They have never tried to stand back and say, "Let's do something that is a neutral fair process." Now, I'm not saying that they would even be allowed to do this, but they could have said, "Let's give this to a neutral arbitrator with no preconditions, hear the equities of the arguments on both sides and we'll stick by what that arbitrator says." They have never offered anything like that.

They have just from the start said with a predefined outcome, it's going to be the date of hire. What is neutral about the language, what they tried to accomplish, what they call neutral is that there were no longer constraints on the BPR. They can do what they want. Our depositions, witness after witness said the purpose of 10H, looking back at it now -- we don't know who wrote it. We don't know why they wrote it but we read it as saying the TA seniority provisions no longer apply. The BPR decides by majority rule and the BPR is going to put in the date of hire list because the constitution says that they have to because they had a campaign after your order came out to raise the expectations of the East Pilots that you said they can ignore the Nicolau and put date of hire in. We just showed you a fraction of what they wrote. If it was impossible for the East Pilots to vote to ratify MOU II unless they put language in that they could tell them the Nic is dead. It's because for two, three months before then, they told them that you ruled that, in essence, the Nic is dead. So how could they, after telling them that, not tell them that the MOU makes the Nicolau dead?

This was not a referendum on the Nicolau. Even if it was, that's not how you decide something like this. You heard them say they are worried that they are going to merge with the APA pilots and they outnumber them two to one. Well, the East pilots outnumber the West Pilots two to one.

They don't want seniority with the APA pilots decided by majority rule. McCaskill-Bond says it shouldn't be. They were part of an organization that said it shouldn't be. It wasn't decided that way. They need a legitimate purpose to deviate from that.

The Rakestraw case handles this very nicely. When you take an action like this, they say a rational person has to be able to see that it has a relationship to a legitimate union purpose. They talk about rationality defining the scope of what they can do like it's a psychiatric dipstick, that all you have to do is show that they are sane and they can do whatever they want.

That is not the test.

Rationality has an element of it's an objective standard and it has to relate to a legitimate union purpose. A legitimate union purpose, the purpose of the union is to get more for the group as a whole. You can either get more pay or benefits or leverage in a future contract. You can agree to something if that keeps the company from shutting down, but it's not a legitimate purpose just to favor a politically powerful faction over a weaker faction. You heard them say, "We've done our job by giving equal representation to the West side." Democracy controls union affairs subject to the duty of fair representation. It doesn't trump it. The fact that West Pilots get votes if they join. The fact that the West BPR has got three members doesn't mean that the BPR can do whatever majority rule says to do.

There's no examples where an internal seniority dispute is settled by the vote of the majority.

And this whole business of saying that the MOU vote settled, this is just taking it a step down that even if 70 percent of the West Pilots voted for the MOU, there's still 30 percent of the West Pilots who were so disgusted that they pay the equivalent of dues but they won't belong to the union. They don't get a vote.

Nobody gets to vote their rights away. If every single West Pilot said, "We give up the Nicolau," then there's no DFR claim. But if one pilot says, "I've got the right to the Nicolau," the others can't vote that pilot's right away.

Those graphs that we showed were shown just to give you an idea of the magnitude of this, that this isn't the problem that an individual pilot can come up and say, "Well, I was harmed X number of dollars if we don't use the Nicolau." It's too complicated. How do you figure out which pilot was harmed? How do you figure out how much they were harmed?

You can't fix this with damages. The problem is too great.

The only fair way to deal with this, the only way to give pilots their right to be fairly represented is to say the union can't change the 2005 TA without a legitimate purpose. They did not have a legitimate purpose to put 10H into the MOU. They had a legitimate reason to make the MOU as a whole but it doesn't mean that every provision in it has a legitimate purpose. If it did, every time you have a new contract you could put all of the bad things you wanted into it and say, "Well, there's more pay so we can make short people get paid less." Well, no, you can't because unless the more pay comes in because the company insists for some reason that shorter people get paid less, you've got no business putting that in.

We've heard no evidence that any of the positive aspects MOU II were given by the company in exchange for 10H. There's no reason to put 10H in there. McCaskill-Bond says how you integrate US Airways and American. They can't change that. The only reason that 10H was put in there was trickery.

THE COURT: Okay. Nonetheless, whether it was the company or whether it was USAPA or whether it was the – I think it's the NAC group or the board that managed to get these benefits, still, those who could vote who were members of USAPA who were West Pilots voted in favor of it?

MR. JACOB: Absolutely. And we're not saying that the MOU is void and we're not even saying what would we do if 10H said, by voting to ratify this, I hereby give up my DFR rights to the Nicolau. That would be a different question. We're saying what does 10H do, worded the way it is, to the DFR rights? Should we let them twist a meaning out of 10H, which is not, obviously, there to function as a waiver of DFR rights even for the pilots that did vote. Surely it can't waive the rights of pilots who didn't have the right to vote.

But should it be treated as a waiver when waiver has to be knowing and voluntary? And then bear in mind this isn't waiver between two parties at arm's length. This is waiver where one party owes a duty of fairness to the other party. If they are asking the West Pilots to waive something, shouldn't they present it to them in a way that is fair and clear? Shouldn't they write and shouldn't they go to the West side and say, "We want to make clear -- this is a good contract but if you vote for this contract, we've just put something in it which means you don't have a claim to implement the Nicolau." Vote for it that way or don't vote for it but understand that is what it's going to be.

We have evidence in our deposition transcripts. We have several witnesses where any instructions given to West Pilots how they should vote if they want to protect their right to the Nicolau and the answer was no. We gave no instruction to a West Pilot how do they vote to protect their rights. This was trickery. This was put in for no reason other than to meet the demands of the East pilot majority.

They thought they were being cute that the Ninth Circuit says, "You don't have a ripe claim until you ratify a contract," and they want to have it so that the act of ratification defeats the claim on the merits. It's their argument they have had. You are too early. You too late. Surely there should be a time that the West Pilots can come into court, hold the union accountable and say, "Did you have a legitimate reason to walk away from the 2005 TA?" They have not shown a legitimate reason at any point in time. They did not have a legitimate reason for the last thing that they did which was putting that language into the MOU that served no purpose other than to take away the West Pilot rights.

THE COURT: Thank you. All right. I'll take the matter under advisement."

If Silver presumes that she can use her dubious, unpublished order as a standard of DFR as a substitute for the published standard cited by the 9th, then she is terribly mistaken, as I already pointed out to you the day this transcript was published. Marty, et al and Silver are kissing with their heads buried in the sand and their vulnerable butts sticking up in the air.