Before I head back East I thought I'd highlight some of the actual discussion between the Judge and the lawyers, so some of you West people can simmer down a little with the Perry Mason act.
I find these excerpts most relevent:
“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.â€
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.â€
“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.â€
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. “
“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?â€
MR. SEHAM: Yes. I agree.â€[/b]
MR. SEHAM: “That's why I only said half way. But the concern we would have is -- perhaps the Court has already addressed this -- that we not be in a situation of if the union were either to choose or be perceived as choosing a negotiating bath whereby separate operations would continue. And when I say perceived, if it's alleged that now negotiations are going more slowly, that there are only two meetings a month or we have asked for too much money or too many benefits, are there going to be requests from the plaintiffs for a contempt hearing because we are not bargaining towards a single contract fast enough.
THE COURT: Well, that's a good point everybody should address, I suppose. Isn't the normal course, though, that the
airline, if it feels that the union is not -- what's the phrase from the Railway Labor Act?
MR. SEHAM: Making every reasonable effort, Section 2 First.
THE COURT: They can go to the National Mediation Board to seek assistance or coercion there, correct?
MR. SEHAM: That is correct. That's correct. And in terms of evaluating good faith under Section 2 First, there are two parties. You will see that in the Third Circuit Bensel case, there are two parties, the company and the union. And
either one, and only either one, has standing under Section 2 First.
THE COURT: And the beauty of that is I would not be
involvedâ€
I find these excerpts most relevent:
“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.â€
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.â€
“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.â€
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. “
“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?â€
MR. SEHAM: Yes. I agree.â€[/b]
MR. SEHAM: “That's why I only said half way. But the concern we would have is -- perhaps the Court has already addressed this -- that we not be in a situation of if the union were either to choose or be perceived as choosing a negotiating bath whereby separate operations would continue. And when I say perceived, if it's alleged that now negotiations are going more slowly, that there are only two meetings a month or we have asked for too much money or too many benefits, are there going to be requests from the plaintiffs for a contempt hearing because we are not bargaining towards a single contract fast enough.
THE COURT: Well, that's a good point everybody should address, I suppose. Isn't the normal course, though, that the
airline, if it feels that the union is not -- what's the phrase from the Railway Labor Act?
MR. SEHAM: Making every reasonable effort, Section 2 First.
THE COURT: They can go to the National Mediation Board to seek assistance or coercion there, correct?
MR. SEHAM: That is correct. That's correct. And in terms of evaluating good faith under Section 2 First, there are two parties. You will see that in the Third Circuit Bensel case, there are two parties, the company and the union. And
either one, and only either one, has standing under Section 2 First.
THE COURT: And the beauty of that is I would not be
involvedâ€
However; It's worth noting that at least 2 among the current group of west posters have previously proclaimed that they'd refuse jumpseats. My only experience was to have a person, (who's hand was still shaking mine), ask "Where are you from?"...then immediately say "Sorry" and walk off into the airplane with a satisfied smirk. I don't feel that all of the people out there conduct themselves in such astoundingly childish fashion, but/etc. Your experience may be different. IMO; The bottom line is that it's likely best to check the flight number and avoid west metal whenever possible.
