I have a theory I'd like you to explore, if you're interested. You are obviously an ex-HP Fa...now enjoying some legal-oriented life, albeit not a practicing attorney as yet.
My legal career pre-dated my airline career.
Have you considered (by your west slant) that the West in their zeal to litigate against every East pilot in a sweeping motion they made some months back, they they have ignored the idea of "agency" as it appliees to a represented class?
First, if you don't mind, let's address the bias comment. It is totally true that I flew for America West, therefore I at least casually knew some of the pilots. I may have even had a drink or two with them. But I would strenuously dispute any intended bias on my part because I may have known some of them as opposed to not having known East pilots.
Having worked in law I learned that there are multiple points-of-view on given sets of facts. If you have read many of my comments from the past you would probably ascertain that I believe in the process of law. I also know the law is far from perfect because it isn't always the party with the facts that wins, but rather the party that can out-finance the other party that wins by attrition. (Before everyone gets all upset, that is a general observation of law in general and not related to my view of the pilots' litigation.) I actually pay attention to what the parties say, what they hope to achieve and how they proceed in a given matter. That type of information has my attention.
Now, let's get specific regarding how I perceive and feel about your question.
As a predicate observation I believe USAPA and East ALPA had never done much to endear themselves to the West pilots. The one item that I do recall them doing as a totally nice gesture was the sharing of some bonus monies. However other than that there wasn't much. They seemingly insisted on DOH and/or LOS as the primary criteria of a merger list. West failed to agree with that and the two sides opted to resolve their dispute under the terms of the ALPA Merger Policy since both airlines were, at the time, represented by ALPA. That meant binding arbitration and both sides participated fully and a decision was rendered by the agreed upon arbitration panel. It seems to me that it was only after the arbitration award that East pilots decided to dump ALPA and create a new union specifically designed to avoid the results of the arbitration award. (I know some folks claim that their discontent with ALPA was far longer running, however there never was any prior serious effort to de-certify ALPA from the property.) USAPA did replace ALPA in a totally legal and binding election under the NMB.
With that bit of backdrop I will address your question.
It appears to me that the West pilots did not in any way feel as if they were a part of USAPA. USAPA was seemingly created to marginalize and disenfranchise the West pilots. They pretty uniformly refused to pay dues to USAPA and subjected themselves to potential termination and/or agency fees regarding their position regarding USAPA now representing them as a bargaining agent. However, as I recall, it was USAPA that seemingly was the first party to seek judicial intervention in what I percieved to be an ill-advised lawsuit against a number of West pilots for having allegedly displaying some ill-advised behavior towards USAPA. (Since I lack any first-hand information about the incidents I use the term "alleged" since there never was any civil or criminal finding made that the alleged incidents occurred. However, for purposes of discussion I accept that something that I will describe as ill-advised occurred.) At any rate it appears to me that USAPA, through counsel, decided to use a sledgehammer in the form of a RICO suit to stop any alleged behavior. If memory serves they we seeking millions of dollars in compensation. Can you honestly think that any union would do such a thing, under the alleged facts present, to prospective members?
As I said, the West pilots appeared to take a position that carried some degree of risk with choosing not to become active members of USAPA. They seemingly made a decision based on their perception of how much USAPA would seemingly represent their interests. Also, remember that the USAPA membership agreement contained some rather unusual language that needed to be agreed upon in writing before any membership application would even be considered by USAPA.
What do you say, counselor?
Just to once again be clear, I am not a lawyer.
Based on my perception of the facts and the equities involved I believe that West has the far more compelling case. That said, I am not the judge. I also have had plenty of experience and know there is never anything you can take for granted whenever any contested matter is placed before a judge, jury or other trier-of-fact. It may turn out to be my perceptions are wrong, but I don't think so.
My interest in this case isn't personal, but more of an interest of a unique merging of two prior careers and an interesting fact pattern being present for eventual adjudication.
