Now my take. I listened to the tapes several times. I spoke with many of those in attendance at the oral arguments. I make my prediction:
LACK OF JURISDICTION (DUE TO RIPENESS)
REVERSED AND REMANDED WITH INSTRUCTIONS CONSISTENT WITH THIS OPINION
Why?
First, for only having 15 minutes, Lee got to every point argued in the brief. He was spot on almost all the way through, with the judges listening intently to his discourse. The judges were not demeaning or disrespectful to either attroney at any time. The only time Lee was initially tripped up was the question from Judge Graber. Lee thought about, stumbled for a few seconds then brilliantly answered the obvious....TITLE 7 claim!! In short, the harm does NOT occur until the vote is counted. No matter how "illegal" union positions or even union "constitutions" are, unless and until they are ACTUALLY utilized can the harm be incurred. Predicted harm or implied harm is and can be only speculative up and until the vote is taken.
As the judge said....war of attrition, final and binding is not so final and binding after all!! That's right, just because you paint a hand grenade orange and call it an orange doesn't make it so. The court is attempting to peel the paint off the "form" of the argument and get to the issue or "substance". Calling it "final and binding" and "arbitration" doesn't make it so because you call it that. Lee drove home that point brilliantly and it is obvious. Unless and until the FINAL TALLY is taken, everything else is just that....WORDS!
Here is the government link:
http://www.eeoc.gov/policy/vii.html
The extreme the judge was utilizing was the the obvious illegality of the question...she was searching for how it would be ultimately addressed. Answer: the federal government provides the necessary floor or basis of protection in Title 7. When the agreement is inked...both the union AND the company can be sued like in Steele v. Louisville (race discrimination)
In short, the saying in labor negotiations is : "sticks and stones can break my bones but names can never hurt me." Whether the union or the company postures and threatens with all kinds of bargaining positions, including discrimination. UNTIL THE VOTE IS TAKEN, THERE IS NO CLAIM! All of us can get on these webboards and yell and scream, even threaten....but until the die is cast, there can be no discernable conclusion as to which way the descision will be made. But only THEN do the federal courts have jurisdiction to hear any claim...not before. To do otherwise will "open the floodgates" to needless litigation.
However, I will state that Jacobs was WELL OFF OF HIS GAME, the savior of the West pilot cause...the anti-labor lawyer working for an anti-labor law firm!!
In his opening argument...OPENING ARGUMENT, mind you, he brought up the Federal Arbitration Act and supporting case law.
NO WHERE...REPEAT...NO WHERE...was that argument ever brought up in the lower court arguments NOR in the brief to the appeals court. Secondly, as I mentioned before on this web board, the FAA has NO APPLICATION to federal labor law in general and to RLA uions in specifics. For more information read Circuit City Stores v. Adams. ("It is reasonable to assume that Congress excluded "seamen" and "railroad employees" from the FAA for the simple reason that it did not wish to unsettle established or developing statutory dispute resolution schemes covering specific workers.") Airline workers are incorporated into RLA via Norris/Laguardia....to Aquagreen73s....that would be us. As far as his contention above regarding "jim Crow" laws ans the "majority", I would hardly classify Aquagreen73s issue as a Title 7 claim.
As for Jacobs pause....he didn't do his homework. Lee finished it for him in rebuttal...."until the knife s thrust". Using Jacobs "knife", by the way!!!
GOOD JOB, LEE!!!
OK you guys....LET IT RIP!!!
