UNITED STATES DISTRICT COURT
May 5, 2009 - Jury Trial - Day 6 - Testimony of Jack Stephan
1115
THE COURT: I wanted to talk to all of you for a minute because I've had a bad weekend thinking that I've been too loose in this trial, letting too much stuff in. Now, the majority of that was for them, some of it for you. So if I've erred I want to be equal in my error. I've reminded the jury a number of times that they're
getting this information for background, the nature of the disputes and the conflicts, but it's sure sounding like trying the case on the merits of the arbitration award. I can remind them from time to time --
MR. BRENGLE: Yes, sir.
THE COURT: -- but --
MR. BRENGLE: We're basically showing that these efforts by ALPA were authorized, they showed that if the pilots did wish to make an agreement around Nicolau they could. And that seems to have been -- this goes to the final and binding issue. They can treat it as final and binding but they always have the option on their own to --
THE COURT: I'll read the documents, Mr. Brengle.
MR. BRENGLE: But it is, Your Honor. That's exactly how they do read and that's the testimony and no one has seemed to say otherwise.
THE COURT: Let me tell you -- and I -- gees. I don't want to go off into too much time right now but it's always possible I've gotten something wrong but I've labored through these documents, and the documents appear to me to be absolutely crystal clear that the vote, whether it's the East MEC and the West MEC or all the pilots together in the new union, is a vote they have to -- they get to take on the final CBA.
MR. BRENGLE: Correct. THE COURT: And the final CBA is a mixed bag of a lot of things.
MR. BRENGLE: That's right.
THE COURT: And it seems to me that it is entirely speculative to say that when presented with a mixed bag, as opposed to the seniority list, people are going to be happy, unhappy, vote yes, vote no, and I am troubled about this testimony that says --
MR. BRENGLE: Right.
THE COURT: -- were people happy, were they unhappy. The answer is, viewed in isolation, which is
irrelevant, East Pilots were happy or unhappy with certain things on the seniority list and the same is true as the West Pilots. But union democracy is not about that. It's about voting on the entire CBA.
MR. BRENGLE: Yes, sir, that's right.
THE COURT: And therefore, I am -- I've lost sleep over the weekend and as the trial has progressed as to whether my limitations and my instructions are effective. So the question you've put is, were they happy?
Well --
MR. BRENGLE: No. Did they think it was fair. Here's -- here's what I would have said. In the Book of Mark, when Jesus was asked are you God, if he had said no, there would be no Christianity. It would
all be done. But he said yes. That doesn't prove he's God but that starts you along the path. That's all that question is designed to do. If he says no, then the whole Wye River thing is bad news for the East Pilots.
So it's a foundational question. First, they've got to think it was fair. Whether or not the West guys did later
doesn't matter. Because, as the Court has said, even though it's modifiable by the parties, they don't have to do it. I'm actually going to bring that out through Mr. Stephan that the West and the East Pilots had the same rights with respect to this.
THE COURT: Well, it seems to me -- again, it seems to me clear beyond dispute from the documents that the documents establish something that was final and binding and not subject to ratification or rejection.
MR. BRENGLE: That's --
THE COURT: But, as in any situation, contractual or otherwise, people who have a right and people who do not have a right are perfectly free to talk and discuss the accommodations for reasons not bearing upon their entitlement or lack of entitlement for prior considerations. That's all I've seen has gone on in the process described. But the fact that people are asked to talk about a right and people are willing to in no way suggests a lack of entitlement. It exists for broader motivations on which people might decide to compromise their rights, but it is not rationally suggestive that there's a lack of a clear written right merely because people for broader reasons are willing to talk. It's just in a way -- this is a secular court and I won't comment on the Gospel of Mark but --
MR. BRENGLE: You know what I mean.
THE COURT: Well, I spent six years studying to be a Catholic priest and I read the Gospel of Mark in Greek. So we won't go there.