Presented without editorial comment- :blink:
USAPA Communications – May 21, 2009
WHY WE APPEAL
I. OUR CONSTITUTION DEMANDS IT
Article I, Section 8.D of the USAPA Constitution establishes that it is an Association objective to “maintain uniform principles of seniority based on date of hire and the perpetuation thereof, with reasonable conditions and restrictions to preserve each pilot’s unmerged career expectations.â€
I would contend that the section of the constitution that you cite is forward-looking and not written in order re-visit past mergers.
A majority of US Airways pilots voted for USAPA and its Constitution. A two-thirds majority of USAPA members subsequently ratified the Constitution as amended.
Agreed.
As a matter of law, the USAPA Constitution constitutes a contractual commitment between the Association and its members. While USAPA will comply with any applicable court order, USAPA considers itself under a constitutional obligation to make every reasonable effort to overturn any court order that is in conflict with the USAPA Constitution.
Once again I would point out that the constitution, in my view, should not and cannot work retroactively. The provision is forward-looking as to future mergers that occur while USAPA is the sole bargaining agent, and does not control what occurred prior to USAPA becoming the sole bargaining agent.
II. FAIRNESS DEMANDS IT
The facts have not changed. The Nicolau Award eliminated up to sixteen years of seniority for both “furloughees†and non-furloughees, a concept which is an anathema to the labor movement and was rejected by every other unionized employee group on US Airways property.
We place the term “furloughees†in quotes for two reasons. First, most of the East “furloughees†were back at work by the time of Arbitrator Nicolau’s decision, thanks to East attrition. Arbitrator Nicolau was aware of this fact, but concluded that ALPA Merger Policy forbade him from taking this truth into consideration.
Second – there are now over 140 West furloughees. Though they currently “bring no jobs to the table,†these West furloughees claim the right to exercise their seniority to be recalled to future vacancies within East Operations prior to new-hire East pilots. USAPA supports their position. Fair is fair. There is a reason why seniority is a core value of the labor movement – it reflects our determination to honor a man’s or woman’s life investment. And ultimately, our respect for this concept benefits everyone.
What Mr. Nicolau considered and didn't consider was in keeping with ALPA merger policy. This paragraph fails to mention that ALPA determined that the Award and the process leading to the Award were within the constraints of the ALPA merger policy and, once they made that determination, presented the Award to the Company and the Company accepted that Award.
III. WE EXPECT TO WIN
Our republic is based on the rule of law. Even federal judges must conform their actions to existing statutes and prior case law or precedent.
Before the trial had even commenced, USAPA was subject to a series of court rulings that prevented the Association from presenting its case to the jury. The following is merely a sampling of what USAPA considers to be appealable error. To the extent possible, we rely on verbatim quotes from the relevant sources so that you are free to draw your own conclusions.
Agreed as to the first two sentences.
As for the rest of the paragraph all courts in all trials limit what may and may not be heard by the jury. Questions of law are the sole province of the court. Factual questions are determined by the trier-of-fact, which may be a judge or a jury. A court is well within its authority to limit what a jury may hear so that what the court determines is extraneous material to the fact question to be determined is rightfully excluded from the jury to prevent confusion to the jury. In this case the Court determined that some of the material that the party's wanted to argue before the jury were outside what the jury needed to know in order to rule solely on the issue of liability as to the question of did USAPA violate its duty of fair representation to the plaintiffs in connection with actions taken after the Nicolau Award was published. How and why Nicolau did what he did was moot to the question that was to be put before the jury.
Inability to Challenge The Nicolau Award
Throughout the litigation, USAPA presented case law that supports a labor union’s right to re-visit seniority determinations, which had been “instituted through a disputed arbitration proceeding.†Barton Brands, Ltd. v. NLRB, 529 F.2d 793, 799-800 (7th Cir. 1976) citing Associated Transport, Inc., 185 N.L.R.B. 631 (1970). Neither the court nor the Plaintiffs ever distinguished this case law.
Nevertheless, the court issued the following prohibition:
No evidence will be admitted to challenge the process, procedure, or decision of the Nicolau Award.
Docket 362 at 2.
The Court appears to have distinguished the cases from the fact pattern applicable in the Addington case, perhaps because the Addington case, to this point, was solely on the issue of liability under the bi-furcated process.
The Court actually let into evidence quite a bit of evidence, from both Plaintiffs and Defendant, regarding the process, procedure and decision rendered in the Nicolau Award. A lot of that information was provided in the admittance into evidence of the Nicolau Award itself and both sides later used that piece of evidence in questioning and argument. I remember seeing what I thought to be one or more jurors reading the Nicolau Award in their Juror books during the time that piece of evidence was being discussed and then during sidebars. Am I sure that they were reading that as opposed to other things in the Notebook? No, but what they seemed to be reading was a large multi-page document.
Frankly, I thought the Court believed its rulings allowed too much discussion of Nicolau to the jury.
Actions of Every Other Union on the Property
In view of the DFR standard that a union need only operate within a “wide range of reasonableness,†USAPA sought to present evidence that every other unionized employee group at US Airways has committed to seniority integration on a date-of-hire basis without any conditions and restrictions designed to protect their West counterparts.
Nevertheless, the court issued the following prohibition:
Generally, however, it would be burdensome, confusing, and a waste of time to introduce evidence of other integrations resulting in a date-of-hire system, and such evidence will be excluded under Fed. R. Evid. 403.
Docket 362 at 2.
Date of Hire as the Gold Standard
The Ninth Circuit Court of Appeals, to which the Arizona district court is subordinate, has held that “the implementation of a date of hire consolidation is well within the ‘wide range of reasonableness [which] must be allowed a statutory bargaining representative in serving the unit it represents….’†Laturner v. Burlington, Inc., 501 F.2d 593, 599 (9th Cir. 1974). Indeed, the Ninth Circuit quoted with approval the following statement found in a decision of the United States Supreme Court: “Integration of seniority lists should ordinarily be accomplished on the basis of each employee’s length of service with this original employer….†Humphrey v. Moore, 375 U.S. 335, 348 n. 10 (1964) quoting from Kahn, Seniority Problems in Business Mergers, 8 Ind. & Lab. Rel. Rev. 361, 378 (1955).
In the by now familiar Rakestraw decision, the Seventh Circuit held: “A rational person could conclude that dovetailing seniority lists in a merger … serves the interests of labor as a whole.†Rakestraw v. United Airlines, Inc., 981 F.2d 1524, 1533 (7th Cir. 1992).
Nevertheless, the court instructed the jury:
In this case, a general preference for any particular seniority system other than the Nicolau Award is not, standing alone, a legitimate union objective.
Docket 459 at 7.
Again, the question before the jury was not which system of integration is more fair. The question was did USAPA commit a DFR by retroactively attempt to deny the Plaintiffs of what they had been awarded in the full and binding Nicolau Award. What other unions do or don't do is not material to what had been done and then how USAPA tried to circumvent it to the detriment of the Plaintiffs.
ALPA Merger Policy
USAPA had documentary evidence and witnesses available to testify that ALPA Merger Policy did not, in fact, allow an ALPA-approved arbitrator to follow his conscience. Rather, as argued in the West Merger Representatives’ own brief (which USAPA was not permitted to enter into evidence), ALPA Merger Policy had undergone a political process whereby consideration of DOH seniority – the industry gold standard – was deliberately excised from ALPA Merger Policy criteria. Moreover, USAPA had witnesses prepared to testify that these modifications to ALPA Merger Policy were implemented for the specific purpose of subordinating the interests of US Airways pilots to other pilot groups.
Nevertheless, USAPA was not permitted to present this evidence pursuant to the court’s order that “the Court (including the jury) is not charged with deciding the independent merits of ALPA Merger Policy.†Docket 362 at 2. Instead, the jury was instructed that the Transition Agreement “required†USAPA to “adopt the Nicolau Award as its bargaining position and use all reasonable means at its disposal to compel the employer to accept and implement the Nicolau Award.†Docket 459 at 7.
In sum, despite USAPA’s legal right to revisit the proposal of a de-certified predecessor on a good faith basis, it was not permitted to present evidence that ALPA Merger Policy constituted a politicized process that was deliberately designed to produce a result that deviated from core values of the labor movement.
ALPA merger policy and its applicability to the Nicolau Award had been argued by East pilots to ALPA, including the ALPA Executive Board, the Rice Committee and at Wye River. After hearing all of those arguments ALPA decided that the Nicolau Award was in compliance with ALPA merger policy and finally submitted it to the Company on 12/20/07. As I said earlier, discussions of the rightfulness or wrongfulness of ALPA merger policy was moot as to the issues to be presented to the jury in Addington.
Also, USAPA has always, wrongfully in my opinion, believed that it could undo the Nicolau Award simply by being voted into the position of sole bargaining agent and having constitutional provisions which automatically amend what has already occurred and what USAPA inherited when it became sole bargaining agent on 4/18/08. USAPA also inherited other agreements with other parties when it became sole bargaining agent on 4/18/08. Does USAPA contend that it can change the terms of any of those agreements or any other previously contested arbitration issue now solely because it is now the bargaining agent and the arbitrated result is contrary to the USAPA constitution?
No Jurisdiction – The Breeger Case
On October 28, 2009, certain former Empire and Trump Shuttle pilots initiated a DFR lawsuit against USAPA in a North Carolina federal district court on the grounds that USAPA’s seniority integration proposal should have provided for retroactive application of DOH principles to previously-implemented integrated seniority lists. This litigation is commonly referred to as the Breeger litigation.
On April 23, 2009, United States Magistrate Judge David S. Cayer issued an order recommending dismissal of the action in its entirety due to a lack of subject matter jurisdiction. The order was based on existing case law holding that a federal court has no jurisdiction to consider whether a labor union’s proposal violates DFR standards until such time as that proposal has been implemented. Magistrate Cayer went so far as to state: “The parties have not cited, and the undersigned is unaware of, any published federal authority addressing whether a union’s conduct may give rise to a ripe DFR claim prior to the conclusion of negotiations with the employer.
The Breeger decision directly referenced the Addington litigation and acknowledged that, while the Arizona federal court had previously declined to dismiss that case due to plaintiffs’ allegations that USAPA had deliberately delayed the negotiation process, the plaintiffs had since that time “disavowed†their allegations of delay. As the Breeger court further observed, USAPA was awaiting leave from the Addington court to file a summary judgment motion. Unfortunately, such leave was never granted.
Same facts, different court, different result.
Magistrate Cayer’s order has since been adopted by the United States District Court for the Western District of North Carolina.
First of all Breeger is, at best, secondary authority. It is both out-of-jurisdiction and a document written by a federal magistrate, not a judge. Therefore the Court had wide discretion in whether or not it considered it compelling in its handling of Addington. Second, and I could be wrong on this point, it is my understanding that in Breeger the USAPA position(s) taken by USAPA in court was contrary to the positions it took in Addington on numerous issues. Since I am not fully convesent on what information was presented and argued to the court in Breeger I cannot further analyze them here.
I actually appreciate seeing this Update as a whole so that we have a base for any discussions of it. Thanks for posting it.
Lack of Bad Faith Instruction
The Plaintiffs’ case was founded on the allegation that USAPA has acted in “bad faith.†Both the Ninth Circuit and the United States Supreme Court have held that, in order to establish bad faith, plaintiffs must show “substantial evidence of fraud, deceitful action or dishonest conduct.†See, e.g., Beck v. UCFW, Local 99, 506 F.3d 874 (9th Cir. 2007) quoting Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 299 (1971).
Nevertheless, the court provided no such instruction to the jury despite USAPA’s specific request.
We fervently believe that the industry standard of date-of-hire seniority – particularly when combined with conditions and restrictions of 10 years duration, which were specifically designed to protect the interests of junior West pilots – cannot possibly be characterized as evidence of “fraud, deceitful action or dishonest conduct.â€
Those of you who have supported USAPA’s efforts may ask yourselves whether this is a fair characterization of your own motives.
USAPA appeals in defense of its Constitution, its members, and in defense of the labor movement as a whole.
The lack of a bad faith instruction is, perhaps, the best argument I see on behalf of the Defendant. I don't see where Court defined "good faith" either, but rather spelled out that unions can have a wide range of reasonableness when deciding issues. In the jury instructions the Court also spelled out that "[d]issatisfaction with the procedures agreed to by the representatives of both pilot groups by which the Nicolau Award was formulated is not a legitimate union objective." Trial Transcript, (May 12, 2009 - Jury Trial - Day 10, Pg 1941, Ln 17-19)
Assuming for a second that 9th Circuit accepts the Defendant's argument on the bad faith instruction I still do not see that as fatal on appeal based on the totality of the instructions and the ability of the jury to have easily found for the Plaintiff without needing to get to the issue of "bad faith" within their deliberations.
