USAPA Loses DFR Case!/US pilot thread

[Richard]

As we begin a new thread for the week, we find that we must remind you all AGAIN about the rules. We have issued a number of lengthy suspensions in the past few days, and have deleted a number of posts.

You may discuss the ISSUES all you want...you may NOT discuss the posters, or make any remarks, comments, insults or otherwise call disparaging names regarding individual posters or groups.

You may NOT use profanity, even disguised by symbols or missing letters.

And as a further note, NO FURTHER DISCUSSION of unrelated East vs. West issues, like who bought whom......a number of you didn't seem to understand that warning.

Offending posts will be deleted without comment, and further action taken as needed.


The trial is in progress and winding down folks......as should the rhetoric here.....

You are all supposed to be professionals.....well a few of you are not representing your profession in a good way here......

Thank you.

 

[nycbusdriver]

Way past time to sew our pockets up and force lazy management to actually run an airline.

Since management does not have clue #1 as to how this would be accomplished, we are certainly in deep doo-doo. Of course, that's news to no one.

 

[Crzipilot]

Exb717,

Thanks for the reply. pretty much what I was looking for. Makes it clear now as to how things are proceeding...

 

[Metroyet]

In court today. Jack Stephan folded under cross examination. The West attorneys would make him read passages out of the TA, Merger Policy, letters from Prater and from Parker as well. Several times he was asked to explain the meaning of certain passages. His attempted deceit was written all over his face. He stammered, claimed not to be able to remember anything very well, was vague, clearly evasive and refused to answer a simple yes or no question even though the answer was in black and white in front of him, the jury, and the audience. He claimed he couldn't remember how many East pilots were on furlough when the nic decision came down. The guy that ended every communication, "remember we have 1879 pilots on furlough" Can't remember. He said he recalled it being "more than a thousand but i'm not sure". Right. Much closer to two thousand. This guy actually told the Jury, under OATH that when they entered into binding arbitration with Nicalau, it was HIS BELIEF that the result of that arbitration would only be binding ON THE 3 MEMBERS OF THE MERGER COMMITTEE.

Somehow, if one could go back in time, and ask Mr. Stephan the question, "Jack, before we start this binding arbitration process, who will be bound by his decision" I'd put any money that his response today in court wouldn't be the same...He tried to play stupid with a foggy memory and all he looked like was a liar, torturing logic and reason in ways that even the most uninitiated observer could see was bordering on the absurd.

Also, Seham was virtually shut out of every decision the court offered today outside the Jury's presence. The famed "Freund letter" that so many find to be the smoking ALPA gun was EXCLUDED as evidence today because the Judge said, "it has absolutely nothing to do with this case". That coupled with the Judge informing the Jury, on several occasions, that Mr. Stephans confident claims of what the law was, was to be ignored as it is irrelevant testimony as to what this "witness THINKS the law is". He continued to inform the Jury that they will be tasked to answer a small handful, (if that) questions that the Judge will clearly instruct them on.

For the West, today was a good day. Today, for the first time, I believe that the lights started to come on in some of the Jurors. A lot of the Chaff and bs is being cut away as the Judge said that he essentially had indulged the East enough in their whole "it's not fair, i've been here longer" opinionated presentations. Expect to see the Leash on that stuff swiftly pulled tight as Wake appeared to have hit his limit. Seham has no case and was visibly agitated, pacing around muttering to himself, when the judge dealt him denial after denial. This whole this is quite boring at times, even for those with dogs in the fight but I have to say today had some very entertaining moments.

At one point, Mr. Stephans testimony was so tortured, and absurdly illogical it elicited audible laughter from the gallery and about half the jurors laughed along as well. To say that Stevens, the west attorney, was "pulling teeth" to get him to give a straight answer would be the understatement of the day. It went unnoticed by no one and made him look like a man with something to hide.

There's a shock. Can't wait to see where it goes from here.

 

[oldiebutgoody]

I wasn't there OR seen transcripts, but I'm confused by your logic that making the ALPA leadership somehow look less than credible would help the West prove their case against USAPA. If anything, it may hurt their case.

 

[traderjake]

ussanark -

"As far as "backlash". Most of the east pilots are well-experienced in methods of interdiction without exposure. It takes time to acquire useable techniques. It is not something someone can just study and do."

If the East's handling the seniority arbitration process and it's aftermath are any indication, I would not count on the "well- experienced methods of interdiction without exposure " of my fellow pilots to accomplish anything.

 

[hp_fa]

Trial - Day Five

Outside the presence of the jury a number of evidienciary matters were dealt with, mostly by stipulation.

Jury is brought in

Resumption of the Re-Direct Examination of Jack Stephan (by Mr. Bringle)

Testified about the dates of the Blue Ribbon Committee (11/07 and 12/07)

Testified about Wye River having occurred 2/08

The Blue Ribbon Committee did not succeed

Stephan attended the Wye River as part of a large group

The East proposal had four legs to it, Stay out of PHX, Keep widebody flying, furlough to occur by longesvity and sought some attrition they would lose

Attrition = quitting, retirement or death

Larger aircraft pay higher rates

(A very long sidebar discussion occurred at this point, probably 12-15 minutes. It appeared to me that the judge was concerned about too much detail coming in before the jury in light of the limited facts to be determined by the jury.)

ALPA NAtional wanted a contract

A "slew" of parties recognized that the Nicolau award (problem) needed to be resolved

ALPA National did all they could to bring the parties together

Prater and ALPA National believed pilots should solve their own problems

Discussion of MEC to MEC litigation

NMB vote on USAPA started 3/1/08

A Ratification vote is the final step of the negotiating process

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?)

This was the 5th or 6th merger for East

The List was sent to the Joiunt Negotiating Committee

The List was subsequently sent to Doug Parker who acknowledged receipt on 12/20/07

John McIlvenna believed that the list was a "quagmire"

The list is nothing outside of a CBA

He was ex officio to the Merger Committee

ALPA Constitution and By-Laws ("CBL's") provide for membership votes, including Side Letters

ALPA National has the right to interpret it's own CBL's

West had the same voting and ratification procedures as East

There were approximately 1800 West and 3500 East pilots

The pilots were"driving" the discontent re: Nicolau

East or West could vote down a CBA by a 50% +1 vote

Jury Exits

Evidenciary discussions occur

Morning Break

Court resumes

Items placed formally into evidence

East was making profits and West was showing losses

East, when Nicolau wasn't going anywhere, changed it's focus to the issue of pay parity

East (ALPA) campaigned to keep ALPA as the bargaining agent against USAPA

West was stagnated as far as growth (He used a McIlvenna letter to come to that conclusion, however it occurs to me West was actively hiring and training as of May, 2005)

The East (ALPA) campaign was based on the positions that East already provided built-in protections via the CBL's and that USAPA would lack those protections

Made a campaign video, paid for by the East (ALPA) MEC. "Don't throw the baby out with the bathwater"

Discussed a 3/14/08 letter by Prater to all US Airways pilots

There was no required timetable for implementation of a CBA

Cross-Examination (by Mr. Stevens)

Company declined to discuss pay parity separately with East while the joint CBA was being negotiated

Doug Mowery was on the Joint Negotiating Committee ("JNC")

Doug Mowery was a prime mover to move forward (I think I got that correct, but may be in error)

By Summer 2007 many sections of the proposed CBA had been agreed to by the parties

5/8/07 The Company made a financial offer (Kirby Proposal)

The bulk of the money in the Kirby Proposal would have gone to East pilots

At the time that the merger was announced East was in bankruptcy

No pilot recalls had occurred as of then

Jurors released for lunch

The Court viewed a proposed exhibit, the "Cram Down" video that had been created during the East campaign re: ALPA/USAPA. (Not accepted into evidence)

Discussion of evidenciary issues

Lunch

Discussed more evidenciary issues and all of the defendant's exhibits being discussed were denied by the Court

Jury Returns

Defendant Re-opens direct examination of Jack Stephan (Not a typo - the defense was allowed to briefly re-open it's direct examination for foundational reasons)

Discussion of trusteeship

The trusteeship of PHL LEC had nothing to do with Nicolau, but rather that those LEC members were USAPA supporters

Cross-Examination resumes

The Company accepted the Nicolau list on 12/20/07. Parker's letter of that date stated that the Nicolau list met all the required criteria of the Company per the Transition Agreement

Company sent each side $300,000.00 under it's obligation to partially fund the two MEC's merger expenditure funds

Nicolau award to be "final and binding" on the parties and ALPA would defend the award

Believes that East and West want an agreement, but not at the expense of seniority issues

Under ALPA policy the members did not have the right to a vote solely on the seniority list

(There was a point about now where Stephan was not answering questions, but more like giving speeches to topics. He was mildly admonished/instructed by the judge)

East requested a new arbitration before a new arbitrator.

East made numerous "appeals" of the award

Believed that the award was "full and binding" on the merger committee but not on the MEC or others

DOH, with some adjustments, was the consistent position of East

Had meetings with McIlvenna and the Company where "informal discussions" occurred about pay rates in excess of the Kirby Proposal

Break

The dispute between the two groups of pilots would have been best resolved by them directly (minus attorneys, etc.)

A letter dated 10/1/07 from Prater to Stephan strongly suggested East move forward and get its members back to the JNC meetings

A letter in evidence from Prater to Stephan siad "[y]ou have used the outside counsel of three labor law and merger firms, the Wilson Center for Public Research, ALPA's general counsel and other ALPA negotiating, economic ..." (I couldn't write fast enough to get the rest of the quoted remarks written down.)

First became aware of the formation of a possible new union during Summer, 2007

Bradford was a "ringleader"

There was indignation re: Nicolau

When asked if he had some sort of ethical responsibility to finally accept a "full and binding" award he responded that he had an ethical responsibility to his members

Re-Direct

Felt that the Nicolau award provided a windfall to the West and was not fair and equitable

Direct Examination of Steve Wargocki by Lucas Middlebrook under Rule 611©, Fed.R.Evid.)

Probably would not have voted for a CBA under the offered Kirby Proposal values

Discussion of the five prongs of the ALPA merger policy

(Jury excused for the day)

Evidenciary and time issues discussed.

Court recesses

 

[HPearlyretiree]

Binding arbitration, agreed upon by both sides.

Not good to weenie out of a commitment.

 

[hp_fa]

After having given a recap of my notes from the day I am going to expound a bit on what I thought and perceived. Obviously we all see and perceive things differently, but these are mine.

Jack Stephan, despite not being a USAPA officer, was a markedly different person under direct examination and under cross-examination. In my opinion it is a mistake for a witness to appear overly different and/or confrontational on cross-examination versus how their demeanor was before the jury on direct examination. Sure you want to avoid pratfalls on cross, but you keep an even and steady presentation to the jury. Mr. Stephan failed to do that and that could lead the jury to question his testimony. Additionally, as I mentioned in my notes, the Judge mildly admonished Mr. Stephan. Actually, a few times. That also doesn't help in front of a jury if the judge has to address the witness directly more than once.

I was not totally pleased with Don Stevens cross-examination. In my opinion he has a habit of mis-speaking and self-correcting that is hard to follow and does not exude an air of confidence. It's a little herky-jerky for my tastes. Also, if a witness does not agree with him during cross-examination he tends to not follow-up immediately with the witness to make a clear record and impression in front of the jury. Often he would come back to the subject, but, again in my opinion, it did not present the best possible flow of questioning and answering on what are bound to be confusing issues to the jury. I will say that there was a point near the end of his cross-examination that he started scoring a lot of damaging blows to Mr. Stephan's testimony, but then another "no" response popped up and Mr. Stevens moved on from that topic rather than break down why the witness didn't agree with him on a point.

One of the attorneys from Seham's law firm was given a chance to do the direct examination of Steve Wargocki. I suspect that he was given this role to help build his trial experience since he has been a bar member for about three years. I found him to be very loud during direct examination and working from a pre-written list of questions rather than an outline during direct examination. (The difference between the two is important when objections have been made to your questions and it is harder to recover from when you have a list of written questions in front of you instead of an outline so you can fall back to your points and start again. As the questioning attorney for the witness he also had the responsibility for making objections for the record during the cross-examination of Mr. Wargocki. During this phase he was unpleasantly and obnoxiously aggressive in stating his objections. Again, he is a relatively young attorney but maybe he was trying to impress his boss just a little too much. I also noticed what I thought to be unhappiness on Seham's face during the direct examination of Mr. Wargocki.

During various objections and also when the jury was out of the court I thought the judge was leaning in favor of the plaintiffs. He understands the case and understands the situation the plaintiffs are in regarding various aspects of law. I also think he is concerned about the jury having too much information before them concerning the relatively limited scope of the decisions they will be making.

On the whole I am not sure what to make of the day. As I stated I thought the cross-examination of Jack Stephan could have been better, but Mr. Stephan didn't do USAPA any favors in how he approached his time under cross-examination. I don't think Mr. Middlebrook helped during his time as lead counsel. That leaves me thinking the day was a wash or slightly leaning towards plaintiff's, but it is a close call.

Anyway, those are my perceptions for the day.

 

[exB717Flyer]

I wasn't there OR seen transcripts, but I'm confused by your logic that making the ALPA leadership somehow look less than credible would help the West prove their case against USAPA. If anything, it may hurt their case.

Jack Stephan was testifying for the defense. It's normal trial tactics to try to discredit witnesses. From the sounds of it he did a good job of that himself but nonetheless from the West point of view there's little difference between the USALPA and USAPA. The jury now understands the Easties were in full attack mode against the West and USAPA merely continued in that vein.

 

[Metroyet]

Jack Stephan was testifying for the defense. It's normal trial tactics to try to discredit witnesses. From the sounds of it he did a good job of that himself but nonetheless from the West point of view there's little difference between the USALPA and USAPA. The jury now understands the Easties were in full attack mode against the West and USAPA merely continued in that vein.

Good point. Obviously the culmination of this trial is about USAPA and DFR. What Stephan proved today is that it really doesn't matter whose name is on the East as a CBA, When they were called "alpa" they intended, in no uncertain terms to abrogate their responsibilities regarding the nic award. All that changed is the name of the union. The TA, in the first few sentences states CLEARLY, (as read by lucky Sully and Stephan) is between two MECs as well as the PILOTS IN SERVICE OF US AIRWAYS AND AMERICA WEST. So basically, what Stephan testified to is this: Under his rule, and ALPA, they had their own plan to evade the nic.. Then comes USAPA, with an even bolder plan to Evade the Nic. USAPA won. However I doubt very seriously that it was lost on the Jury that in fact, we're talking about the exact same people...the East pilots in "service of US Airways".

To me, all it showed was that America West was going to get the shaft no matter what.

 

[cleardirect]

HP-FA

As usual, very accurate and astute observations. Can not disagree with you on anything but the score. I would give the plaintiffs a bigger edge. But I might be a little biased.

I agree with you about Middlebrook. He was offensive. He reminded me of the kid that got beat up at school everyday because he would rat out people to the teacher. He knows all of the rules and points out as soon as someone else breaks them. But somehow does not know that they apply to him also.

Appeared to be to be entirely out of his league. The JV player somehow found himself in the big game. Managed to irritate the judge in 35 minutes. As you said even the witness was wondering where he was going with his questions, and found them to be irrelevant. Good thing that it was the end of the day.

 

[hp_fa]

I agree with you about Middlebrook. He was offensive. He reminded me of the kid that got beat up at school everyday because he would rat out people to the teacher. He knows all of the rules and points out as soon as someone else breaks them. But somehow does not know that they apply to him also.

Appeared to be to be entirely out of his league. The JV player somehow found himself in the big game. Managed to irritate the judge in 35 minutes. As you said even the witness was wondering where he was going with his questions, and found them to be irrelevant. Good thing that it was the end of the day.

In fairness to Middlebrook there is only one way for him to learn his craft and that is by doing it. Unlike pilots there are no simulators for trail lawyers. However, I still think he could have done better with his opportunity.

 

[lynyrdskynyrd]

Alas poor Middlebrook was just trying to make his mentor proud. Working in Seham's New York firm, I'm sure, being obnoxious is a requirement.

 

[Metroyet]

Out of curiosity, How old was Middlebrook when Wargoki was 9 years old? Relevant? No...but ironically amusing.