I believe that the Judge believes he can't force implementation of Nicolau. He may think that he can compel it to be contained in any CBA presented to the pilots until a CBA is ratified, but I tend to doubt that he would do that. It is my view that perhaps Seham's suggestion of returning West and East to status quo ante as far as having an effective veto right as a group to any CBA presented to the pilots until one is finally agreed to may be his remedy. In other words both groups would have to each agree to a CBA by a 50% +1 majority.
HP_FA,
Here is the appropriate portions of the transcript from that day.
THE COURT: Absolutely.
To assist you in thinking about what's on my mind, I haven't even looked back at the pretrial statement for the bench portion of the trial since we began the trial. So I am not having in mind everything. I basically folded into that both sides' statements of issues without having the ability to decide whether I thought they were right or not. But as I think about this at times, Mr. Stevens, it seemed to me that if the plaintiff prevails, the remedy is an injunction that orders the union to negotiate for the Nicolau Award. And I can't think of any other remedy. You had mentioned something about ordering -- something about foregoing a ratification vote. And I'm not sure what you are saying. If all you meant to say is that the Court should order that there be no specific individual ratification vote on the Seniority List, no one is contenting that there is any right to that. So I don't think the Court needs to say that. If you are contending that the Court should fashion some kind of injunction that allows the -- a final proposed CBA to be voted on somehow without addressing the Seniority List, I have two concerns that you will want to address. One, is I'm just -- I can't visualize how that could be done, and second, it seems to me that the members of the collective bargaining unit have an absolute right to vote up or down on a CBA and that no court can control that. Now, whether that doesn't --and I'm not sure if there are any other remedy issues that you had in mind. Let me look -- I had the clerk print this for me, so let's see what you all listed.
MR. SEHAM: When it's appropriate, defendant counsel has a suggestion to make.
THE COURT: I want to hear from the plaintiffs first. Now, all this is without prejudice. I just wanted to help -- tell you what my thoughts are. But these aren't conclusions.
MR. HARPER: My recollection is that we addressed this on the Monday before the trial started, or at least shortly before the trial started. And your position at that point in time was that if we took you any further than just the injunction with respect to bargaining with the Nicolau Award it was premature and that you wanted to wait to see how future events worked out before you addressed that, even though we were trying to direct you to it. So that's my recollection. You didn't reject it you just didn't want to be drug there.
THE COURT: That was all just TA'd at best.
MR. HARPER: Right. Can we vote?
THE COURT: No. I have the only vote.
MR. HARPER: But that's my recollection.
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.
MR. SEHAM: The plaintiffs have already, I think, very strongly, if not explicitly, suggested that there would be some kind of contempt action because of dragging heels toward negotiations or because they have actually stated there are publications out there from one particular domicile that says we're all going to vote this down.
THE COURT: And, of course, it's premature for the Court to think what it would do if a contempt action were brought. But --
MR. SEHAM: Or whether a contempt action could be brought against members for voting.
THE COURT: I will repeat myself. One of the virtues of this approach is there wouldn't be any contempt action. The remedy would take advantage of the legitimate normal self interest, self interested perceptions of each member of the bargaining unit to decide, I will take this deal or no deal. And it really doesn't manipulate in any way the analysis of any voting member -- I guess only the union members get to vote, right?
MR. SEHAM: Correct.
THE COURT: It doesn't manipulate any perception of any other self interest. It simply carves out and neutralizes what, by hypothesis of this discussion, is determined to be a DFR. And it would free the Court from having to consider contempt if the collective bargaining representative makes the best judgment that they don't want to present a new proposal. And even though the TA permits it and the separate agreements are -- I guess one of them is amendable now. The other one will be soon. If they decide they remain with the status quo, isn't that the prerogative of the collective bargaining representative to do that?
MR. SEHAM: Yes. I agree. And the one caveat I would have is, if the Court -- maybe I'm halfway persuaded.
THE COURT: Don't be persuaded. I'm very self-consciously thinking out loud.
