USAPA Loses DFR Case!/US pilot thread

[rosyjosey]

Reports coming in from the courthouse: Theuer is getting destroyed by Harper; Seham and Brengle are in another frenzy and admonished again by the judge; Wake stated he is going immediately into the bench trial for damages once this jury trial conclude.
It looks like USAPA is hurting.

If memory serves in the days just prior to the decertification vote there were many from the west who were just as confident that USAPA was doomed. So pardon me if I don't start quaking in my boots just yet and yes I have read the transcripts! No real clear winner!!!!! RJ

 

[BoeingBoy]

LOA 93, in particular, has a specific expiration date for the pay rates.

The problem is that LOA 93 doesn't really say that. LOA 93 uses the words "freeze" and "as frozen." And that's why the issue will almost certainly end up in front of an arbitrator (assuming no combined agreement by that time). The union clearly interprets those words to mean "snap back" while the company just as clearly interprets them to me " becomes amendable."

Jim

 

[V1cut]

Reports coming in from the courthouse: Theuer is getting destroyed by Harper; Seham and Brengle are in another frenzy and admonished again by the judge; Wake stated he is going immediately into the bench trial for damages once this jury trial conclude.
It looks like USAPA is hurting.

Well, that settles it then..."it looks like...." rain
snow
fun
(fill in the blank)

While you are certainly entitled to think what you want...by reading the daily's, either side can claim an advantage based on their presuppositions to the case. But, by all means, since you are all possibly watching a lottery ticket get burned, cheerlead yourselves into a frenzy.

Here's the really funny part about this case so far, you west peiople have for months asseted that NO background filler information was going to be in court...nothing. That it was NOT about the Nic.....(here's one for Metroyet)

IRRELEVENT

Tell me, what has been the primary topic of this whole case?...the Nic.

And while the judge is going to give final instructions to the jury to deliberate on, I'd say this:

Have the AOL folks considered that they litigated too soon?...USAPA can't enforce the Nic right now to mitigate west furloughs, so no harm there....(seperate ops)

And, no actual DOH with CBL's list has been thrust upon the west under whichthey can claim "harm"

Ever see the Tom Cruise movie called "Minority Report" ? It deals with a futuristic ideal in law enforcement known as "pre-crimes" wherein they arrest people based on crimes they "will commit" but haven't yet.....


That was set in like 2070......it's 2009, USAPA has as yet not even harmed anyone.

(fade to black...)

 

[EastUS]

The problem is that LOA 93 doesn't really say that. LOA 93 uses the words "freeze" and "as frozen." And that's why the issue will almost certainly end up in front of an arbitrator ...

Well...it was, after all, a product of Alpa's properly revered and well renowned genius.. If it does ultimately prove to be completely and utterly worthless...none should really be surprised.

It's certain the company will endeavor mightily to avoid paying anything, and will have to be fought. What's new there?

 

[Phoenix]

...

Pilots are not bound by the merger list, only the merger committees (Personal note - I have a huge problem with this theory. How can anyone anywhere represent someone if a subsequent claim can be raised that the represented party is not bound by whatever agreements were made on their behalf?)

...

Would you also excluded the premise of a DFR.

 

[Tiger 1050]

Where in the transcripts did you read this..... a page number please....

This is what the West has been saying all along, at the roadshow, in correspondence etc. I would like to read where the Judge informs Seham.

Here is some of the transcript. You'll find the complete transcript on the AWAPPA site under "Court Transcripts." Look for the post with a PDF attachment labeled "Addington Motion Hearings."

Sorry for the length but here ya go...


MR. SEHAM: And that there seems to be very much
throughout this a damning with faint praise of the concept of
Date-of-Hire seniority, whether you look at the Laturner case
or the Truck Drivers case, 379 F2d 137, that those cases -- and
the Rakestraw case -- those cases all talk about Date-of-Hire
not only being appropriate, but Truck Drivers, for example,
says it is the standard by which all others are judged.

THE COURT: I don't see this case as being grounded in
that. I see this case as being grounded in admittedly
irreconcilable differences, that both interests came together
and they understood their common need to make progress for
economic betterment against their employer. And they
understood the prospect of paralysis, and therefore, they
agreed to a neutral resolution process not knowing how it was
going to turn out. So what I am seeing or wondering about here, Mr.
Seham, is what's the legitimate union purpose when the
represented interests have entered into an explicitly binding,
final and binding resolution to turn around and saying, well,
we don't like who won. We don't like who lost. We want to
change it. What's the union purpose in abandoning that neutral
dispute resolution process? It's kind of a mutual non-suicide
pact by which both pilot groups know that they may not like
what happens but they have bigger fish to fry with the employer
so they are going to get on to that and put this behind them.


MR. SEHAM: I'm going to try to resist a long
rhetorical speech here and try to briefly make two points.

THE COURT: My focused question is, what is the
legitimate union objective in saying we know, we knew from day
one, that somebody, if not everybody, was going to be
profoundly unhappy with the outcome. So what's the legitimate
union objective of saying we're just going to pick a different
winner after everybody, who their representatives have agreed
to a process who they agreed would be binding and final.

MR. SEHAM: Two points. One very briefly, because
it's going to delay me getting to the one you addressed. The
first point is we challenged the factual premise. No one
agreed to this. It was imposed by ALPA, and there was no vote
on the ALPA constitution, no vote on the ALPA Merger Policy, no
vote on the Transition Agreement. None of these pilots voted
on this. Now, putting that factual dispute to one side, the
other issue is this, that Date-of-Hire is in the interest of
the labor movement. It may not appear to be in your interests
today. It may be counter to your transient interest today.
But ultimately, that concept of waiting on line when you get to
the back of a line, you don't feel it's in your interest not to
cut. But as time goes by, and people form in the cue behind
you, it becomes more and more in your interest.
And that's the concept that Rakestraw deliberately --
very specifically addresses. They may say, listen, these scabs
-- and I'm a union attorney so permit me to use a term actually
been addressed at USAPA members.

THE COURT: My father was a union man, and it's not a
polite word.

MR. SEHAM: It's not. It's the lowest form of life.
So when someone says that to you, it's very provocative.
However, when someone crosses a picket line it's just a
truthful way of referring to the man or woman.
In any case, in the Rakestraw case the scabs
benefitted from a permanent agreement, that ALPA entered into a
permanent agreement. And a few years later, after they
actually lived with it for years and years, that was flipped.
And yet there you have the Seventh Circuit, the same Seventh
circuit as Barton Brands in Wisconsin, saying it was in the
scabs' interest to be put down at the bottom of the list
because a cohesive labor union that honored the Date-of-Hire
and strengthened the union movement through the Date-of-Hire
ultimately benefitted everybody.

THE COURT: You are just saying that the agreement of
the two MECs to accept an unknown future neutral resolution is
an illusion, that however it turns out, it can be rejected in
favor of a different substantive outcome. That's what I'm
hearing you say.

MR. SEHAM: No more or less than the permanent
agreement in Rakestraw was an illusion. And a union always has
the right to revisit in a way that satisfies a legitimate union
objective.

THE COURT: Is it possible under the Railway Labor Act
for two hopelessly reconciled labor groups to enter into a
binding neutral process to resolve their mutual disagreement so
they can go forward on their areas of neutral interest? Is
that possible?

MR. SEHAM: The answer to that is yes, it is
impossible. Because the rule of law is you can revisit so long
as it's not solely for the illegitimate purpose and it advances
union interest in a certain form.
And what I'm trying to -- I'm not trying to make final
argument here. What I'm trying to say is throughout the jury
instructions, in effect, the jury is prohibited from making a
finding of fact that Date-of-Hire -- there is an interest, that
these West Pilots down the line might be very hurt. In fact,
they are being hurt today because the non-implementation of
that Date-of-Hire concept. And we are, in effect, being --
that is a legitimate factual conclusion. In fact, I would say
that it's the rule of law throughout the United States of
America and the federal courts. But at a minimum, the jury
should be allowed --

THE COURT: The jury should be allowed to decide, we
just think that Arbitrator Nicolau made a poor decision.
That's what you are telling me, they should be allowed to do
that.

MR. SEHAM: Those are two concepts. Yes, they should
be allowed, but again, there maybe I think the ship has sailed
in a sense because we haven't been allowed to submit that
evidence.

THE COURT: Actually, most of the evidence we have
heard on both sides does dual duty. I have allowed it in to
describe the nature of the dispute, how it arose, the context
and the interest at stake. But it's pretty much, everything we
have seen so far is evidence you would also put in if you
wanted to have a jury second guess.

MR. SEHAM: Certainly nowhere near the encyclopedic
evidence we were planning to present. There was a motion in
limine, and we lost it. We were not able to pursue what we
think the Seventh Circuit has recognized as legitimate means of
proceeding.

THE COURT: 10 more minutes, all right? Because I
feel awful that I brought you all down here and we don't have
the time to have the discussion I wanted to have. I was
looking forward to doing it outside of our regular trial day.
And we'll have to add it on to our regular trial days.

MR. SEHAM: Again, to avoid too much legal argument
and focus on where -- if I'm not being too irreverential to
suggest where constructive criticism might actually have an
impact, I will finish up that last point by stating that the
jury should be allowed to consider not just a blind choice
between the benefits of getting a better Collective Bargaining
Agreement and the comparative disadvantage of USAPA versus
Nicolau, which, first of all, we think is a false comparison
because of the reality of indefinite separate operations but
that the jury should be allowed --

THE COURT: But there could only be indefinite
separate operations if there is a valid ability of a
self-interested Eastern pilot majority to prevent an integrated
Seniority List from ever being adopted.

MR. SEHAM: How is that unlawful? That is something
that was --

THE COURT: I'm just asking.

MR. SEHAM: The pilots collectively are not a union.
They are exercising their rights as defined under ALPA Merger
Policy. And it's always been our position -- the plaintiffs
present this as a rule versus tyranny of majority conflict, and
what we say is the rules provide for democracy, albeit at the
tail end of an otherwise oppressive bureaucratic process they
do at the tail end allow these pilots, who are supposed to be
served by their union, allow them the say-so. And the
president of the association, in so many words, said you can
exercise this to protect your seniority interest and your job
security.

THE COURT: But, you know -- well, this comes back to
a fundamental issue of if the parties were proceeding in good
faith and made an agreement through their authorized
representatives, their MECs, for a binding neutral resolution
that, clearly, there's a majority and minority that turns out
probably the majority is more unhappy with it than the minority
is. But what's -- how is it that if there is a duty of fair
representation to honor that agreement, then how could there
ever be an impasse?
I mean, an impasse would simply mean -- and -- and,
the documents clearly explicitly provide that the two
interested pilot groups do not have the right to ratify or
reject the arbitration award. That is as clear as day. And if
that's the premise, if that's the background, how could it be
in good faith for a majority to use their backup power to
ratify an entire CBA as a way to indirectly defeat their duty
to the minority to honor the agreed resolution of the Seniority
List?

 

[Pi brat]

The East never placed the Kirby Proposal, valued by the Company at $122 million, in front of the parties for a vote. The Company clearly offered pay parity in the context of being included in a full CBA.

Had East combined Nicolau and the Kirby economic numbers into a proposed contract and submitted it for ratification and the contract was subsequently voted down then East (USAPA) would have been in far better position in the Addington litigation then where it currently finds itself.

Was it the duty of the east to accept a contract at any cost in order to put the Nic award in place? You say that they never put the Kirby proposal up for a vote but that proposal was totally inadequate. The focus switched to parity because it was perceived that the east was making a big part of the profit, being cheated on pay, and the Nic award would drag things out for a while.

I would have been very unhappy if the MEC put the Kirby proposal out for a vote. I wouldn't want the company think it was near good enough, mainly because of the DC contribution.

 

[freedom]

looks like the west side hired a good lawyer ..

 

[Phoenix]

No sir, you are wrong on both counts. I didn't think that I would vote for Cleary until Schopaul came along. This man produced a video that put all US pilots in a very bad light and put it on the internet for the world to see. A lot of us have vented and said or done things we probably shouldn't have, but that sent WAY over the line and he never even apologized for it. That anyone would vote for him says a lot and it has nothing to do with why a trial is going on.

I wonder when his east coast tour will be, I'd love to be there.

On other thing. Remember how many times the east pilots were told to be careful about voting out of anger? It's good advise.

That the Goat Man can even be placed on a ballot demonstrates the sea change of integrity that ALAP never could have stomached for itself.

The goat video was over the top but just perhaps a terrible momentary lapse in judgement (and if people think it so sever a lapse I don't have too much heartburn over that).

What I found worse was the long and entrenched pattern of vitriol and hate he posted for weeks on the ALPA boards. The ALPA Message Board automatic emailing distribution pumped my email box full of his "brotherly comments". His goat video just helped cement him in a unique light that outshines his peers and makes him more memorable.

In spite of all his deserved notoriety I still could see no reason to deny him the jumpseat, if he was behaving.. though I am not sure even a reincarnated Mother Teresa could expect a reciprocation from him, if she were wearing a USAPA lanyard.

 

[hp_fa]

Trial - Day Six

Evidentiary and scheduling issues discussed. Counsel each expect to need 2-3 hours for closing.

Rule 50 motions will be considered at some point by the Court

If the testimony to the jury ends on Friday the Court may decide to proceed with the bench trial during any free time once the jury is dismissed for the day.

Jury enters

Jeff Skiles

Direct Examination (Mr. Seham)

Is a F/O in PHL

Has been a US Airways captain

Never been furloughed

Familiar with Nicolau Award ("Nicolau")

Nicolau placed 800 AWA pilots above him

Believes that if Nicolau was the seniority list he would never get a chance at international flying

Was somewhat dissatisfied with ALPA, said it was "not very democratic"

Was unable to vote on the ALPA Merger Policy or the Transition Agreement ("TA")

There was an impasse due to Nicolau

Supported USAPA as being democratic. It "represents us" (East and West)

Things were deadlocked with ALPA under its merger policy

USAPA protects career expectations

Supports USAPA DOH plan because it protects career expectations

Continues to support USAPA as a democratic union

USAPA, among other things, supports safety issues and supported him during his crash

(The court admonished the witness on making narrative responses to questions, in this case mentioning the Hudson crash)

(The Court prohibited further questioning of the crash)

Cross Examination (Mr. Harper)

He may not have had a career if not for the merger

Pilots furloughed soon after 9/11 had not been brought back to US Airways as of the time of the merger announcement

He could be a captain now if he so chose

Could be a PHL captain now

Does not know the date USAPA uses for creation of its merger list

Regarding the impasse he could not say who would or would not have voted yes or no on a CBA

USAPA has DOH in its constitution

(Court again admonishes the witness on making speeches and adding material not required to answer the question before him because those issues may or may not be before the jury)

USAPA voting will be by a majority vote

Re-Direct

Discussion of seniority, could be a junior captain on reserve but chooses to be a senior F/O with a better schedule.

Discusses disadvantages of being on reserve

ALPA's solution to the impasse was separate operations



Direct Examination of Scott Theuer (Mr. Seham)

Lives near PIT

A-320 captain

(Another admonishment by the Court to proceed by question and answer, ie - no speeches)

Was a primary organizer and is a Communications Committee chair of USAPA

Helped draft the constitution

Communications chair was a policy making position

USAPA has a website and he controls access to it

Never been furloughed

Familiar with Nicolau

There is a 13 year difference between him and the adjoining AWA pilot on the Nicolau list

Younger pilots above him on the Nicolau list would acts as a cap to the seniority list and block upward movement for others

A West pilot with the same hire date is 2000 spots above him on Nicolau list

Poor representation by ALPA

Problems with ALPA include "B" scale, the British Airways ("BA") investment opportunity and loss of pension

ALPA has political problems, again mentions "B" scale and BA investment opportunity in which National ALPA became involved and hurt US Airways

ALPA is inefficient with dues and allows lavish expenses to be incurred

He was on the "B" scale committee

He had little impact on ALPA policy

(Really long sidebar)

(Juror #3 has a note handed to the judge, it is about the spelling of Mr. Theuer's last name)

He created "Pilots for a Quality Contract" between the time that the merger was announced and USAPA becoming the bargaining agent

Discusses a letter from McIlvenna to Bradfore re: ALPA Frustrations (NMB requires 50% +1 and an attempt in the early 1990's for US Air to have an alternative union over the BA issue - 40% supported a NMB vote)

Seham had represented AWAPA

Break

Before the jury comes in it is brought to the Court's attention that Mr. Theuer was seen speaking with a reporter during the break. Defendant's counsel had never advised the witness about not speaking with people about his testimony and the exclusion rule.

Jury Returns

Discusses McIlvenna statement in a Pilot's Newsletter (5/31/07) that East could make implementation difficult

Discussion of "Pilots First" posters created during the USAPA campaign

Doesn't remember if he was at all roadshows

Bullet Points of the poster
- Constitution with a bill of rights
- Better and more efficient service
- Merger policy: DOH
- Independent union
- Simplified committee structure
- "No more gravy trains for Reps"
- Meetings to be held in bases
- Webcam conferences
- Negotiating or Merger committees cannot agree to tentative agreements
- Beholden only to USAPA pilots

(Another admonishment to narrative answers)

Nicolau was the final straw to create USAPA

USAPA was not formed to kill Nicolau

Discussion of an AWA MEC Newsletter, Q&A portion said they would never negotiate away Nicolau

Discussion of a letter from Doug Parker to all pilots (8/17/07) referring to "pilots hardening positions" and the desire to try and attempt to negotiate a CBA

West position was percieved as not accepting anything less than Nicolau and East would not accept Nicolau

No progress was made from the time of the Parker letter through the date of USAPA becoming the bargaining agent on 4/18/08

Under Nicolau "Nicolau will be overturned, constitutionally"

Discussion of "USAPA Mailings" : 1) USAPA removes two MEC's and replaces them with one BPR, 2) Only to be one vote on a CBA of all pilots

Another document said, "The Award, rendered moot as a result of ALPA's decertification, plays no role"

Never resigned from ALPA

USAPA encouraged members to stay current with ALPA dues (to vote down any CBA)

Did not follow Allied Pilots Association constitution and policies model

USAPA CBL has been amended and there has been a "constitutional convention"

Constitution had DOH with conditions and restrictions and protected unmerged expectations

Has been involved in numerous mergers and the conditions and restrictions are different each time.

Jury leaves for lunch

Court discusses evidentiary matters and time matters

Lunch

Direct Exam continues

Is familiar with conditions and restrictions

Objectives of USAPA include uniform principle of seniority-based DOH policy

Envisioned an East/West diologue re: pre-merged expectations

Discusses fences

Discuses "fear" of one's own union re: merger & integration and that senior pilots have the most to lose

USAPA renders Nicolau "moot"

Theuer actually formulated a lot of the questions in the USAPA Q&A publications and answered the questions also

ALPA merger policy is arbitrary and subjective

Mark '08 roadshow in PHX, West pilots were "not very receptive"

USAPA requested West membership participation and they were "not initially able to get West participation"

Cross-Examination (Mr. Harper)

Bradford was the first president

Bradford is not sick or dead (The purpose of the question concerned the issue of why Mr. Bradford never attended trial)

Theuer is testifying about Bradford-authored letters

There was limited time for testimony so Bradford did not come

Discussion of the Herndon picketing and that USAPA began to be formed about that time

East pilots were not the only folks he discussed USAPA formation with

5/31/07 - 4/18/08 Nicolau on the shelf

Nicolau cannot be presented by USAPA to the company because of the USAPA constitution

United, Delta, Northwest and others are ALPA members and those airlines held the majority in ALPA

8/15/07 East recalled their merger committee

8/16/07 US Airways letter to pilots that parity had already been offered

A document discussed voting along "party lines" and Theuer disagreed that "party lines" referred to East and West

Bradford letters established that East intended to disinfranchise West thru USAPA

Started drafting USAPA constitution in late summer 2007 along with Bradford, King, Thorpe and a few others

Bradford was out as president on 4/18/09

Mike Cleary is now president and that election is being re-done

(Long sidebar)

Break

(Sidebar)

Jury returns

Evidence admitted

Re-direct

Randy Mowrey is the chair of the Merger Committee

Merger Committee under the direct control of the BPR

Mike Cleary not involved in USAPA formation

Jack Stephan was an adversary of USAPA

Re-direct ends

Stipulations read to jury

Jury sent home early

Discussion of remaining defense witnesses, Paul Diorio and Doug Dotter (wanted to be recalled after release as a witness) are excluded after a long discussion

The Court disallows testimony re: CBA outside of seniority issues

Plaintiffs can enter a portion of the deposition of Doug Mowery

Closing arguments to be presented to the jury on Tuesday

Court recesses

 

[oldiebutgoody]

Here is some of the transcript. You'll find the complete transcript on the AWAPPA site under "Court Transcripts." Look for the post with a PDF attachment labeled "Addington Motion Hearings."

Sorry for the length but here ya go...


...I mean, an impasse would simply mean -- and -- and,
the documents clearly explicitly provide that the two
interested pilot groups do not have the right to ratify or
reject the arbitration award. That is as clear as day. And if
that's the premise, if that's the background, how could it be
in good faith for a majority to use their backup power to
ratify an entire CBA as a way to indirectly defeat their duty
to the minority to honor the agreed resolution of the Seniority
List?[/b]

And, in the next several pages, Mr. Seham explains it. Even the Judge seems to grasp his argument.

Funny how some folks can just grab something and "spin" away.

The jury will make the ruling. Not web board posters.

 

[hp_fa]

I think Hp-FA would concur but going to trial is a crap shoot.

Until the jury renders a verdict all we are doing is filling the up space on a server.

Going to trial is always a crap shoot.

 

[hp_fa]

Would you also excluded the premise of a DFR.

I am sorry, I don't understand your question.

 

[oldiebutgoody]

I heard that the plaintiffs want Bradford to try on a glove, And that Kato Kaelin was sleeping in his garage!

 

[hp_fa]

Was it the duty of the east to accept a contract at any cost in order to put the Nic award in place?

No.

My point was from a purely judicial point-of-view. There is ample speculation in the record that the Nicolau award would have been voted down. There is also ample speculation in the record that Kirby, as it existed, would have been voted down. However, it appears less certain that Kirby would have necessarily been voted down. In either event it is all speculation since a vote never actually happened. Had a vote actually occurred then the Court would be listening to evidence of actual pilot vote(s) rather then people saying it would have been voted down.

Had East (ALPA or USAPA) been smart enough to actually put it to a vote, with the expectation that it would lose, then they could claim they tried to implement Nicolau and failed while at the same time they offered their members the Kirby proposal within the same CBA. Could the pilots, despite all the posturing in crew rooms and websites have accepted the proposals? Sure, but it probably is more unlikely to have occurred rather than likely. Did the union leaders fear putting it up for a vote? Probably. But had they done so many of the things we are hearing in court about ALPA be undemocratic would not be able to have been factually stated. Also, and this is my main point, a judge would have a much harder time coming to a possible conclusion that there has been a breach in the duty of fair representation.