Let's ponder some strategy, which means long term thinking. USAPA is fighting tooth and nail for reversible error which is absolutely their right.
Actually, I think we’re just doing what the BPR voted that we do. “Fighting tooth and nail†is so hyperbole. Not much strategy to that. But when we need “strategy,†I think we’ll stick to getting it “in-house,†not rely on a "disinterested" paralegal.
So let's assume that in 12 months that the Ninth Circuit grants USAPA everything it wants as far as a new trial and remands the case for a new trial. What do you think will happen at a new trial, especially if Stephan Bradford is correctly served a subpoena for trial? What is going to happen when he has to testify and there is already a paper trail that will lock in his testimony about his motivations in forming USAPA? Remember that there is documentation that at least partially establishes that it was to defeat Nicolau.
“Everything it wants†would mean tossing the entire thing out on reversible error with either no ability to retry (a bit of a long-shot?) or else the right to retry with guidelines and/or without Wake. How about “lets assume†Wake won’t get another shot at it at all? Maybe the 9th will decide he cant be unbiased and cant have it back. But assuming there is a new trial, worse case for us is the 9th Circuit remands back for “ripeness.†Kind of like the Breeger decision. If so, until theres a DOH-based (with restrictions) contract, theres no “ripeness,†so no trial. But even if there is a new trial, with Bradford properly served, his intent/motivations still don’t matter. Surely someone of your legal prowess can read and understand Rakestraw. Any wonder Harper and Wake fought “tooth and nail†to keep it out of the jury’s knowledge?
Folks need to think ahead and, at the same time, realize that the company is not going to be serious until the pilots get this behind them.
The company wasnt serious back from 2005-2007. What makes you think having this all behind us is going to speed up the process? One thing we don’t really need is free advice and thinking from a paralegal. Thinking about a retrial already? I thought the appeal was DOA? It still won’t make any difference, because intent/motivations don’t matter. So says Rakestraw v. ALPA - United States Court of Appeals, Seventh Circuit. - 981 F.2d 1524 Argued Feb. 24, 1992.Decided Dec. 28, 1992
Negotiation means compromise. Neither employees as a whole nor particular groups of employees emerge from bargaining with all their wants satisfied. Often unions can achieve more for some of their constituents only by accepting less for others.
"Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected.†Rakestraw. If union leaders took account of the fact that the workers at the larger firm preferred this outcome, so what? Majority rule is the norm. Equal treatment does not become forbidden because the majority prefers equality, even if formal equality bears
more harshly on the minority. Cf. Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).
These principles dispose of the Ozark-TWA case. ALPA's "merger policy" could not compel TWA to agree to anything, and it did not seem likely, under the circumstances, to produce agreement within the union either. So ALPA experimented, emphasizing negotiations between representatives of the two groups rather than what Duffy feared would be premature intra-union litigation. Perhaps Duffy’s handlers were wrong, but a mistake in judgment does not violate the duty of fair representation.
For the reasons developed in Part II of that opinion, however, a "bad" motive does not spoil a collective bargaining agreement that rationally serves the interests of workers as a whole, and that treats employees who are pariahs in the union's eyes no worse than it treats similarly situated supporters of the union. From Rakestraw we learn that you can do something for a good motive or a bad motive and not run foul of DFR.
Judge Wake made sure that the jury never heard any of this from Rakestraw - The appeals court will.
From the barnyard, “All animals are equal, but some animals are more equal than others.†George Orwell, Animal Farm, 1945
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