Spot on and very thorough summary of yesterday's hearing.
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For those of you who missed today’s hearing, it was probably one of the most important court room proceedings outside of the actual trial. It is typically the motions for summary judgment and the discovery motions where many of the cards are laid on the table for all to see. Add to that today’s oral arguments on the court’s wording of the injunctive relief order, and you had the makings of some good court room drama. USAPA’s attorneys did not disappoint.
And one more preliminary note, everyone should heed AOL’s plea for funding. It is clear that one of USAPA’s strategies is to bankrupt AOL’s effort. So please donate like your career depends on it as it does based on comments from USAPA’s attorney today. More on that below.
Most of the day was taken up with oral arguments on defendant USAPA’s motion for summary judgment of the damages claim. USAPA’s motion was denied. Their arguments were both legal and technical and were argued by Atty. Silverstone for USAPA (All defense council today appeared via conference call). The short version of USAPA’s argument was that AOL’s damage claim was based purely on speculation that a contract would have been in place by October 2008 and that it was not USAPA’s conduct that led to this not being so. In legal circles, this is referred to as the but-for-cause argument – but for the conduct of the defendants, the pilot group would have been integrated and working under a common agreement. USAPA argues that AOL can not win this standard of proof.
USAPA referenced case law that in their view requires some sort of conclusive proof rather than speculation in order to find proximate cause in a RLA breech of duty of fair representation case. With regard to this speculation, the USAPA attorney referenced sentence of one paragraph of the trial testimony of Russ Payne concerning how close he thought they were to a TA. He also referenced the TA and ALPA policy in that it sets no timeline for implementation of a combined CBA.
Aside from some technical arguments about AOL not properly pleading damages, the centerpiece of USAPA’s defense however, was the position that it was the East MEC under ALPA that withdrew from negotiations and that it was USAPA that was left to pick up the pieces. That USAPA immediately went into negotiations without delay and that such negotiations continue today for the benefit of all pilots. They argue that based on prior court rulings in this case, USAPA can not be held liable for conduct prior to its certification. This resulted in some rather interesting discussion led by judge Wake that first corrected USAPA’s understanding of the court’s ruling, and then delved into what he called “dual unionism.†He spoke of how the evidence at trial showed that the East MEC purposely obstructed and blocked (his words) negotiations for a period of eight months which was plainly a breech of DFR, and how the evidence showed some members of the East were wearing two hats – acting as officers of ALPA while supporting USAPA. He spoke of active USAPA participation in East MEC wrongdoing even going so far as to specifically reference the conduct of Council 41.
AOL’s side was argued by Andy Jacob. The causation arguments by USAPA were blunted with Jacob pointing out that the trial produced ample evidence for a jury to make a determination of causation and liability as to whether USAPA actively supported and negotiated for a joint contract, and that West pilots would have been better off under a joint contract that included the Nicolau list. Jacob referenced testimony from both East and West pilots, as well as company negotiators, concerning how close we were to concluding a contract when the East MEC, acting in concert with USAPA’s public statements, withdrew from negotiations. This was a question for a jury, Jacob argued.
AOL’s arguments seemed to carry some weight with the court, but this led to one of those judicial pauses for reflection. I saw this as judge Wake covering all bases, or as one put it, providing ample seasoning of the record. Based on some of the discussion and what he described as USAPA’s inadequate pleadings, judge Wake concluded that this damage phase was moving much too quickly and should be placed on a more normal schedule for a damage case. This will allow for more adequate discovery and proper pleadings from both sides according to judge Wake. Based on some hallway discussion after the hearing, it appears that the damage trial will now be closer to the end of next year.
Most of the remaining discovery motions were dispatched rather quickly with AOL winning some, one was previously withdrawn, and others shoved into a meet and confer status now that the hearing has narrowed the issues. I don’t recall USAPA winning a single motion. What was clear from this portion of the hearing was that Wake again wants to keep the discovery issues focused to the misconduct of the parties – namely Council 41 and other officers who “torpedoed†negotiations. USAPA’s Granath went all in on the record, Wake wincing at the volume, calling this McCarthyism arguing that allowing this kind of discovery will result in a chilling of individual unionist rights that are protected by Federal law. The court was only swayed to the point of commenting that Wake wanted a very tight leash on this discovery.
The last forty minutes of the day was the scene of all the drama over the USAPA’s objections to the language in the court’s proposed injunction. This is when the true colors, the blood and guts, of everything evil about USAPA was laid out on the floor of the courtroom. And judge Wake stomped all over them. This was another example of USAPA council proving the case for AOL. To be lucky enough to sit and observe the carnage was both shocking and beautiful all at the same time.
Wake started by commenting on the rather lengthy and abstract objection from USAPA on why the court should require them to negotiate in good faith a single CBA (USAPA still wants the ability to negotiate separate agreements). He had several questions for USAPA concerning their “conditions and restrictions†in their motion to which the answers only seemed to confirm Wake’s suspicions. The only reason, Wake said, that he could think of why USAPA would raise the objection was to leave open a wide door for USAPA to cause further harm to the West. He said it looks like USAPA wants to continue to evade its responsibilities. The court was not impressed with USAPA’s case law arguments, stating that the court has ample authority in case law to order the union to comply with previous agreements and that the court needs to close these doors of indirect evasion of the court’s injunction.
Marty Harper’s reply was as brief as it gets. “The court has it exactly right,†he said. He then took his seat.
USAPA’s point man on the injunction motion was an attorney by the name of Middlebrook. And if there ever was a law class on trial advocacy and knowing when to sit down and shut up, well he obviously skipped the class. Middlebrook first started his argument with a somewhat compelling, but abstract legal argument on RLA rights of individuals and each group’s reserved right to Section 6 negotiations in the TA. But then he drifted off course. He spoke of the benefit to each pilot group and the leverage that USAPA felt would be created under separate ops by negotiating separate CBA’s until such time that the two groups were combined. Everybody in the court went, huh?
Wake clearly did not like what he was hearing. He repeated that he wanted to hear a specific reason that would justify USAPA’s argument for separate CBA’s when the intent of the parties clearly was to operate under a single CBA. Wake stated that it was the court’s responsibility to remedy a proven wrong, and that he was very concerned about what he was hearing from USAPA’s council. Middlebrook should have taken the hint. He didn’t.
Middlebrook continued on with a disjointed and rambling argument about how separate ops would be good from a negotiating standpoint for both West pilots and East pilots. For those of us observing, this was painful to listen to as we all understood that USAPA’s attorney was revealing their “Plan B.†Wake tried to interject comments several times, but Middlebrook would have none of it. He kept on going, and going, and going. He spoke of improving the conditions of each individual CBA and then later cashing in those “chits†as leverage for a single CBA. This drew a rebuke from Wake, “Are you going to leverage the company by sacrificing a certain smaller groups of pilots?†Even the court staff laughed. Wake had heard enough and cut Middlebrook off.
If the body language said anything, Wake looked annoyed. He said that this will be a permanent injunction and the court will retain jurisdiction to later amend it as necessary. Wake concluded that it is essential to have this protection of negotiating a single CBA in good faith to protect the plaintiffs from what has been “pervasive DFR conduct†by the defendants. Upon that stinging rebuke, the court adjourned. It was a bloody mess. It is too bad that USAPA appeared via conference call. I would have loved to have seen them slither out of the court room.
USAPA council spilled the beans on their “Plan B†of negotiating a separate CBA for the East’s benefit. You can bet that a West CBA would only be an afterthought. Based just on the amount of flying going to the East, separate ops is to the West’s detriment. I continue to be impressed with the AOL legal team. It is important that we continue to keep up the funding for AOL. This fight is going to get more expensive fast. I hope to see a gold AOL support badge on every pilot before this is over. Thanks for listening.
