If there is a new DFR (II), the jury will undoubtedly be shown Steve Bradford's "smoking gun" letter where the attorney told him to never, ever, ever, tell anybody "that the sole reason for the new union is to abrogate an arbitration"
Abrogating the award is the sole reason the union was formed, and the jury took under three hours to agree.
You will neve see this letter in the USAPA legal library. Neither Bradford nor Cleary took the stand to defend this letter because it is indefensible, and stands ever redy as an unassailable weapon in DFR II.
Read the letter below carefully, and notice where I've bolded the sentences that prove otherwise. USAPA was being formed for only one purpose, and - in the words of the SFO attorney - that purpose was to "abrogate an arbitration."
All other USAPA promises to the membership were empty, and meant only to mislead or manipulate us into thinking USAPA was formed for more honorable or justifiable reasons.
This is the 2007 Bradford Letter, used as exhibit #14 in Judge Wake's courtroom:
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A Conversation with an Attorney
KEEP THIS INFORMATION CONFIDENTIAL
On Saturday, June 9th in San Francisco I had a conversation regarding our case with Chris Katzenbach of Katzenbach and Khitikan, a labor law firm.
Katzenbach and Khitikan have done some NMB work primarily with the American Eagle pilots group and they helpd them set up a 501C3 non-profit format to hold the Eagle Pilots independent union which is involved in an organizing campaign to oust ALPA from that property.
In commenting on our case he said that as an outsider he really had to hand it to the opposing counsel in the final brief for the America West Pilots. He understands, in some respects, the issues involving airline seniority. He said however that to an outsider the America West brief was very convincing and easy to follow. This doesn't make it right or more fair, it's just an easier to follow and better presentation to follow than the Katz presentation. The America West brief, appears a least on the surface, to be more in line with the stated new ALPA merger policy. It ignores past president but if you only have the current policy as a point of reference then their argument seems more in tune with it.
Chris Katzenbach {the SFO attorney} feels that a direct assault on this {Niclolau} award in the courts is a looser. The courts don't want to be educated on the minutia of this case or any other complicated private matter. The courts only concern is if there is fraud or bribery or some other gross misconduct in the conduct of this arbitration. If pressed they {law firm} would take a case like that but he feels it to be a looser. It would also probably require a substantial down payment up front to pursue. By the way their fees are very reasonable, $275.00 per billable hour.
I next specifically asked him about the formation of a new bargaining agent {USAPA} as an avenue of advance to get around this award. He says that it is entirely possible. The key the courts look for is not the private squabbles, procedures and methodologies between unions and their nationals, the facts of the collective bargaining agreement. The CBA is the defining argument in a case to the courts. The Railway Labor Act /National Mediation Board procedure and policy above all governs.
"Could the America West pilots sue us" I asked, "if we pursue this course of action." "Yes", he said however Duty of Fair representation suits are losers, Katzenbach and Khitikan sued ALPA for the American Eagle Pilots over their current contract which among other things had a 20 year no strike clause. The contract was a negotiating committee cram down to keep from having the Eagle flying farmed out and allowing for the American equivalent version of "jets for jobs" and "flow through." Does this sound familiar?? As a result of this contract the Eagle pilots are trying to get out of ALPA.
Chris said the contract was truly piece of "****" but because it was negotiated by the duly elected negotiating committee it would stand in court. They lost big-time and that's that. So to answer the question, yes you can be sued but they must prove fraud or other really gross violations of law to have the suit stand up. However, he cautioned, the language you use in setting up your new union and how you go about talking and writing about your solutions to this award can be used against you. You need to stress he positives of the new union and not dwell on the award.
Don't give the other side a large body of evidence that the sole reason for the new union is to abrogate an arbitration, the Nicolau award, that in the opinions of most judges, should be allowed to stand due to no gross negligence or fraud.
In a ruling by the NLRB, not the NMB, in 1954, stated: Seniority status in mergers must be resolved between the the employer and the union not by the union unilaterally. 107 NLRB 837;225F.2nd.343. That is to say seniority lives in the collective bargaining agreement not inside the unions. It will cost some more money to find if there is an equivalent ruling in a case by the NMB, but Chris feels there most certainly is.
A study and roadmap of the case law based on the premise that a new bargaining agent can get around the award and make the Nicolau award moot will cost 5 to 7 billable hours, so about $1925 with this firm.
When I stated that our Chairman Doug Parker had expressed an interest in industry consolidation he replied "well you know this process can work in reverse". That is, if we had a merger with United then even before there was an arbitration process the United pilots would petition the NMB for "single carrier status" and we could find ourselves back in the same position as we are now, inside ALPA. The Nicolau award won't die until ALPA dies. If there are mergers down the road then the award can come back if ALPA does. Seniority lives in the CBA so you need a new contract to go with the new union to solidify your claims. Can something be put in the contact to protect these claims, I asked. "That question will require a lot of research". Katzenbach and Khitikan seem to be competent in this area although they are not experts in Railway Labor Act / NMB law. Chris stated that there are very few firms who specialize in RLA/NMB law, it's a very small portion of labor law pie.
This consultation is not free, they don't do that with this kind of case, but they have low rates ie, $275/hr. My name is the one given so I will pony up on this meeting and the firm will supply a resume of their qualifications to do this kind of law and a recap and their opinions on what was discussed and I will forward that information when I get it so that all can see what type of law firm this is and if we want to do business with them in the future.
