THE COURT: To be direct, Mr. Harper, is there any other remedy that you would be asking the Court for if there's a judgment for the plaintiff?
MR. HARPER: Without prejudice, no. But that's why we're going back. We have people working on the materials today. So we need to go back and check with them and to kick it around a little bit.
THE COURT: Mr. Seham.
MR. SEHAM: As you have learned through this proceeding, the labor unions are political animals. So it's with a very high level of temerity I suggest an alternative
remedy. I don't want any of my back benchers on either side to suggest I would be happy with this alternative remedy.
THE COURT: This entire discussion is without prejudice to your position on the merits.
MR. SEHAM: Could still mean my lynching. But in any case, what we would suggest is in terms of remedy, if -- assuming we lose on terms of liability is, as more appropriate, would be a return to what we consider -- and I think the facts establish -- as a status quo ante, which is that both sides, East Pilots and West Pilots, have leverage over the other. Now, one might conclude that --
THE COURT: How would that be done?
MR. SEHAM: It's actually plead by the plaintiffs' complaint. And if, for example, it's the finding of the Court that USAPA in its formation and its proceeding in bad faith circumvented a process under which West Pilots have their own veto, that the appropriate remedy, both in terms of returning to the status quo ante, and not giving the plaintiffs something they were not entitled to even under ALPA Merger Policy, would be not to obviate ratification but rather command that there be
ratification by majority vote by both East USAPA members in good standing and West USAPA members in good standing. That would return the status quo ante, and also, I think this is a very strong consideration in terms of public policy, that it is that it would remove the Court from the obligation to engage in ongoing supervision. In other words, there wouldn't be a court hovering over the parties determining whether week to week there's going to be a contempt action and whether we're bargaining in good faith or deliberately dragging our heels to perpetuate certain obligations. But rather now the Court can delegate it to a political process which could engender a compromise because everyone wants higher wages.
THE COURT: And you all need to caucus and let me know if there's any other evidence you want to present on that, and if you do, we'll hear it tomorrow.
MR. SEHAM: This suggestion is in our papers.
THE COURT: I don't remember that.
MR. SEHAM: Most of our papers are basically saying, to quote counsel Stevens, neener-neener, we don't agree with the Court in any of its conclusions. But at the end, we actually do something constructive which is, Judge, if we're going to lose, this is a way that we, instead of giving them something they never had under ALPA, restore to them what they argue they had under ALPA. And also --
THE COURT: What brief is that in? I honestly don't remember it.
MR. MIDDLEBROOK: Your Honor, it's in the findings of fact and conclusions of law that we filed roughly two weeks ago.
MR. SEHAM: You can skip to the very end.
THE COURT: Fine. I had not thought about that. But let me just throw out two non-final and non-binding thoughts. Wouldn't that risk undercutting USAPA's legitimate
position as the union, as the single collective bargaining agent? No one is challenging the validity of that.
MR. SEHAM: A lot less than ordering us what to bargain for. Because at least in that fashion we have the ability to go to our members, both East USAPA members and West USAPA members, and say if our constitution, in your view, or our proposal in your view does not sufficiently obtain the compromise that the Rice Committee and Blue Ribbon Committee and Wye River lockdown were seeking, then we'll return to that process which was arguably interrupted under the same political circumstances, and again, each -- both sides, to the extent anyone concludes that there is a monolithic East and a monolithic West, both sides have to be satisfied in their autonomous majority. I re-emphasize we would not be happy about it. But in terms of forcing us to a particular result, that would be far less intrusive and far less burdensome on the Court itself.
THE COURT: There is truth in your observation with avoiding intrusive judicial management. That's a fundamental principle of the courts of equity to not take on injunctive remedies that they lack the practical ability to monitor, to police and enforce. But on the other hand, if, in fact, the remedy were an injunction that says you have to negotiate for this Seniority List, I wonder whether that remedy might have the advantage of minimally intruding -- well, if that's -- if that's the legal
right, it's not intruding at all. But minimally disrupting collateral aspects of the collective bargaining process because in the end, what it would mean is USAPA goes back to the table. There are all the other issues to negotiate. They do the best they can. They submit it to the members, and the members, as I see it, if the majority in the end are sufficiently distressed that they don't want have to a new single Collective Bargaining Agreement with the Court ordered list, then they can vote it down.
MR. SEHAM: How many votes do we have to take? If they vote it down once, is the injunction dissolved?
THE COURT: The power of the members to vote their self-interest does not empower them, in my view, to validate a DFR that is previously determined to be a DFR. So what it means is the members have to choose between what their representative has come up with the best deal but it's not going to come up with a different Seniority List. And if they reject it, the union can go back and negotiate for different and better terms, but it will not have a different Seniority List. So it would not disrupt and take advantage of the normal entitlement of the members to consider all of their self interest and make an up or down vote on the agreement. But they will be knowing that if they act out of an unregulatable disregard of the Court's determination of the union's obligation, the result is they are still at the lowest pay scale in the industry, they are foregoing what could have been obtained and they will know that whatever betterment could come from a new CBA is still not going to change that.
