Citations
- 375 F. Supp. 2d 908
Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW
HAMILTON, District Judge.
On September 30, 2004, and October 1, 2004, the court conducted an evidentiary hearing on the question whether Emery Worldwide Airlines, Inc. (“EWA”) and the Air Line Pilots Association, International (“ALPA”) had reached an agreement in which they settled the grievance filed by ALPA on behalf of airline pilots who lost their jobs when EWA ceased flight operations in December 2001.
At the evidentiary hearing, the parties presented witness testimony of Marcus Migliore (“Migliore”), in-house counsel for ALPA; Captain Howard Attarian (“Attari-an”), Executive Assistant to Captain Duane Woerth (“Woerth”), President of ALPA; and Sheldon Kline (“Kline”), outside counsel for EWA. In addition, the parties stipulated to the admission of testimony in the form of deposition transcripts of Woerth; Captain Jeffrey Haddock (“Haddock”), the Custodian for ALPA’s Master Executive Council for EWA; Troy Englert (“Englert”), Senior Economic Analyst, ALPA; Gene Granof (“Granof’), in-house counsel for ALPA; Don Fausset (“Fausset”), former Vice-President of Human Resources and Labor Relations for Emery Air Freight Corporation d/b/a Emery Worldwide (“EWW”); David Grant (“Grant”), outside counsel for EWW; Eberhard Schmoller (“Sehmoller”), general counsel to CNF, Inc., parent company of EWA and EWW; Terry Kierce (“Kierce”), former manager of financial analysis, contract administrator, and manager of compensation and benefits for EWA; Ronele McCurdy (“McCurdy”), former Director of Employee Relations for EWW; and Magdalena Jacobsen (“Jacobsen”) the mediator at the February 5, 2003, mediation session in San Francisco.
BACKGROUND
The background facts are more fully set forth in the court’s order of May 28, 2004. Briefly, EWA was formerly in the business of providing air transportation as a “common carrier by air” as that term is defined in the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151-188. EWA, which ceased operations in December 2001, operated a fleet of freighter aircraft used exclusively by EWW a/k/a Menlo Freight Forwarding. EWA and EWW were wholly-owned subsidiaries of CNF, Inc. (“CNF”).
In 1987, ALPA became the collective bargaining representative under the RLA of the pilots and flight engineers employed by EWA. In September 2000, the EWA flight crew members, represented by ALPA, entered into a collective bargaining agreement (“CBA”) with EWA.
On August 13, 2001, the Federal Aviation Administration ordered an immediate suspension of EWA’s operations for 60 days, citing EWA’s violations of air safety regulations. As a result, EWA furloughed its flight crew members. ALPA filed a grievance concerning EWA’s suspension of operations (“the August 2001 grievance”), and the furloughing of its flight crew members, and scheduled a System Board arbitration. After presiding over a number of hearings, Arbitrator Robert 0. Harris recessed the arbitration without issuing a decision so that the parties could attempt to resolve their disputes through mediation.
On August 27, 2001, representatives from EWA and ALPA commenced “effects” bargaining, pursuant to the RLA. The negotiations continued in September 2001 in Ohio. The purpose of the negotiations was to reach an agreement on issues related to the suspension of operations and the furloughs. See Pittsburgh & Lake Erie Railroad v. Railway Exec. Ass’n, 491 U.S. 490, 109 S.Ct. 2584, 105 L.Ed.2d 415 (1989).
On December 5, 2001, CNF announced that EWA and EWW would permanently cease operating their fleet of aircraft, and that the previous layoffs of EWA flight crew members would be permanent. In January 2002, ALPA filed a second grievance (the “shutdown grievance”), asserting that the December 2001 shutdown and the continued furlough of all EWA’s flight crew members violated the CBA. The parties continued the effects bargaining concerning the pending grievances in January 2002 in Washington, D.C., and in February 2002 in Dallas, Texas, with mediator Robert Kasher.
THE FEBRUARY 2002 MEDIATION
At the 2004 evidentiary hearing, the parties submitted testimony from several witnesses concerning the negotiations at the 2002 Dallas mediation session. Also admitted into evidence at the hearing was the transcript of notes taken by Ronele McCurdy during the Dallas mediation. McCurdy stated that she took notes at Don Fausset’s request during the EWA-ALPA effects bargaining sessions, from August 2001 through February 2003. McCurdy Depo. at 50-53. McCurdy testified that Fausset had asked her “to get all the notes down that I could, and to be representative of both sides of the table, and to make sure I put no emotion in the notes, but to write it like I heard it.” McCurdy Depo. at 27. McCurdy stated that she had attempted to take down the exact words that were spoken, though her notes were not a verbatim transcript. McCurdy Depo. at 66. The hand-written notes and the typed transcript were authenticated by McCurdy at her deposition, and EWA placed the transcript into evidence at the evidentiary hearing without objection by ALPA.
According to Fausset, Migliore indicated during the Dallas negotiations that approximately 150 to 160 pilots had advised that they didn’t believe ALPA had authority to settle on their behalf, and that they intended to proceed to arbitration. Fausset recalled stating several times in Dallas that EWA was seeking a “global settlement” — • by which he meant “total effects bargaining” or “the elimination of the labor agreement, all grievances, all arbitration opportunity, waivers regarding the pilots’ rights to sue, et cetera.” Fausset Depo. at 45-51.
Migliore raised the issue in the Dallas negotiations of ALPA’s authority to enter into a settlement of grievances on behalf of the entire pilot group. Exh. D-l at 11-0251 to 11-0254. Both Fausset and Kline testified that Migliore was nervous about putting ALPA at risk of a lawsuit by the pilot members of ALPA. Fausset Depo. at 40 — 47; Tr. at 278-284 (Kline). Migliore recalled that the parties discussed waivers of litigation — but only waivers of grievances, not waivers of outside claims such as tort cases or state statutory whistle-blower cases. Tr. at 384-86 (Migliore).
Haddock recalled only a brief discussion of the waiver issue in Dallas. He testified that ALPA had been prepared to reach an agreement that included termination of the CBA between EWA and ALPA, but not one that included waivers of grievances and civil litigation against EWA. He didn’t recall ALPA abandoning its position with regard to opposing waivers as a condition of settlement in Dallas. Haddock Depo. at 24-30.
The parties did not reach any binding agreement in the Dallas mediation session. There was no agreement regarding monetary settlements or the terms of any waiver or release. Tr. at 168, 277 (Kline).
THE PERIOD OF TIME FOLLOWING THE FEBRUARY 2002 MEDIATION
Arbitrator Harris issued a final decision on December 3, 2002. He found that the August 2001 furlough of EWA’s pilots was caused by circumstances beyond EWA’s control, and that while EWA had violated the furlough notice provision, EWA had not violated the CBA itself when it furloughed its flight crew members. He awarded ALPA $1.2 million, limited to the August 2001 grievance.
After the issuance of the arbitration award, Kline discussed other pending issues with Migliore and Granof. Fausset testified that Kline called him after the February 2002 mediation session and told him that Granof was interested in finding out whether the money on the table in Dallas — somewhere between $17 and $30 million — was still available. Fausset Depo. at 101-104. According to Kline, Granof asked whether EWA wanted to resume negotiations, and whether EWA was prepared to put on the table the proposal originally made in Dallas — $25 million. Tr. at 171-172 (Kline).
Granof testified that he and Kline had ongoing conversations regarding the resumption of attempts to settle the shutdown grievance. Kline advised Migliore and Granof that EWA sought as a precondition for any global settlement that there be a waiver and release of all claims against EWA. Kline told Granof, “We would want some form of waiver.” Granof Depo. at 43-51. According to Kline, EWA wouldn’t agree to a specific amount of money at that point, but was interested in further negotiation. He stated that both Migliore and Granof were receptive to the idea of a waiver and release, although neither of them “committed” to such a condition. Tr. at 174-175 (Kline).
Kline recalled a conversation with Migl-iore in December 2002 or January 2003, regarding “the various preconditions that the parties were so interested in as the predicate to getting into the February mediation.” They discussed the waiver and release issues, and Kline suggested to Migliore that there be a specific waiver and release for ALPA spelled out. According to Kline, he made this proposal because both EWA and ALPA were intent on constructing an agreement that would end the litigation to the extent possible, and would provide for a full waiver for any future claims, and because both sides had to consider that there might well be a duty of fair representation (“DFR”) lawsuit as a result of any settlement that was reached. Tr. at 229-230 (Kline).
Granof understood that EWA was worried about lawsuits, and didn’t want the pilots to get money from a settlement and then use that money to fund litigation. By “waiver,” Granof understood Kline to mean “the kind of settlements that I had been typically involved in” — that in return for the company paying a pilot to settle the grievance, the pilot would agree to drop any ongoing lawsuits or grievances. It would be up to each pilot to agree to participate in the grievance settlement, and any pilot that refused to dismiss all other complaints and grievances would in effect opt out of the settlement, but could continue with other statutory claims and also would be entitled to pursue the grievance. When Granof discussed the waiver issue with Kline in January 2003, he believed that they were speaking about the “typical” settlement with waiver. According to Granof, this was not the type of waiver and release that EWA eventually demanded. Granof Depo at 51-53, 73-74.
THE FEBRUARY 2003 MEDIATION
The parties agreed to meet for a one-day mediation session at the Westin St. Francis Hotel in San Francisco, California, on Wednesday, February 5, 2003, with mediator Magdalena Jacobsen. According to Kline, the parties chose Jacobsen because she knew the parties, the agreement, and EWA and its related corporate structure, and also because she was at the National Mediation Board at the time of the previous arbitration. Both Kline and Migliore were interested in having a neutral third party in the negotiations, partly because Migliore had expressed concerns over a possible DFR suit. Tr. at 175-177 (Kline).
EWA was represented by Fausset, EWW’s former CEO; Kline and Marshall, attorneys for EWA; Grant, attorney for EWW; and Kierce, the administrator of the collective bargaining agreement between ALPA and EWA. ALPA’s lead negotiator was Attarian, Executive Assistant to ALPA President Woerth. The other ALPA representatives were Haddock, Custodian for the Emery Pilots; ALPA attorneys Granof and Migliore; and Eng-lert, Senior Economic Analyst for ALPA. Also present was McCurdy, who took notes at Fausset’s request.
According to Attarian, the issues to be considered at the February 5, 2003, session were the shut-down grievance, whether the ALPA-EWA CBA should be terminated, and whether the ALPA-EWA bargaining relationship should be terminated. Tr. at 44-45 (Attarian). Attarian later testified that the negotiators bargained over the shutdown grievance, which included negotiation of the termination of the collective bargaining agreement and the collective bargaining relationship between ALPA and EWA. He also testified that they negotiated the amount of the monetary settlement, and agreed that ALPA would determine the allocation of the settlement funds to the individual pilots. In addition, ■ ALPA sought a right to re-employment for former EWA pilots in the event that EWA or any of its affiliates started up a new airline within a specified period of time. Tr. at 47-59, 65-69 (Attarian).
Attarian also recalled that the parties discussed whether, as a condition of receiving a distribution of the settlement monies, the individual pilots would be required to execute a personal litigation waiver and release. He was aware that there would have to be a waiver and release negotiated by both parties, which was also acceptable to ALPA, and he was aware' in general terms of the scope of the proposed waiver and release, but also stated that he was not a party to those particular negotiations. Tr. at 52-53, 69-70 (Attarian).
Attarian knew, prior to the February 5, 2003, mediation, that the waiver and release issue was something that had to be resolved and satisfied. Attarian believed that if the issue of the waiver remained open and unresolved, it would not satisfy the terms and conditions of the agreement until it had been negotiated successfully and legally reviewed. He believed that Woerth was aware of the magnitude of the waiver and how carefully it would have to be constructed. He didn’t recall any specific conversation with Woerth regarding the waiver, although Woerth did charge Attarian with making sure ALPA was legally protected, so ALPA would not be exposed to litigation. Tr. at 87-97 (Attari-an).
Settlement Authority
Fausset was the chief spokesperson for EWA, and the only EWA representative with settlement authority. He stated, however, that he always needed approval for any settlement that went beyond his “parameter,” although he did not describe that “parameter.” He asserted that both he and Attarian said they had full authority to settle, and he believed this authority existed regardless of any written statement that a settlement agreement would require the final approval of the president of EWA and the president of ALPA. He also claimed that many agreements in mediation are reached on a handshake. Fausset Depo. at 109-114.
Kline also testified that Fausset was lead negotiator for EWA and had full authority to agree to a settlement that day. Tr. at 180-181 (Kline). Fausset represented EWA in the negotiations with ALPA over money issues. Kline was not personally present for any negotiations between the ALPA representatives and the EWA representatives concerning money issues. Tr. 191-92 (Kline).
Attarian was the lead negotiator for ALPA. Both Attarian and Woerth described Attarian as Woerth’s “right-hand man.” Tr. at 35-36 (Attarian); Woerth Depo. at 27. Woerth testified that Attari-an’s authority was to work on projects and take them as far as they could go in negotiations. However, Woerth never delegated to Attarian the power that is reserved for the president of ALPA. Woerth Depo. at 66.
Woerth recalled no specific discussions with Attarian regarding his authority for negotiations prior to the February 5, 2003 mediation session. Although Woerth sent Attarian to San Francisco without a dollar target, he believed that the senior pilots had to get at least $100,000 each or “the deal wouldn’t go.” Woerth Depo. at 21-26. Attarian says that for the February 2003 negotiations, he was just told to do a “good job” and not given a monetary target or floor. Tr. at 38-39 (Attarian).
According to Attarian, he had the authority to bring the terms and conditions to a successful conclusion, to bring a proposal back to ALPA in Washington, D.C. Tr. at 107 (Attarian). He testified that although he stated that in Dallas in 2002, and in San Francisco in 2003, that “I always have the authority vested by the president to do the deal,” this authority was subject to bringing the deal back to the president for his final review and signature. He emphasized that no one at the mediation had the authority to bind ALPA to an agreement — only the president of ALPA could sign for ALPA. Tr. at 98-99 (Attarian). “It’s in our constitution.” At-tarian never told Jacobsen or any EWA representative that he had the authority to agree to a final settlement without the final authority of Woerth. Tr. at 107-112 (Attarian).
Migliore confirmed that Attarian had said he had the authority to proceed and get the deal done, and take it back to the president. Tr. 423 (Migliore). Migliore also agreed that under ALPA’s constitution and bylaws, it is always the president’s decision whether or not to approve a settlement. Tr. at 404, 412 (Migliore). He did not believe that this requirement that the president of ALPA sign any agreement was simply a “ministerial” matter. Tr. 387-389 (Migliore).
Englert recalled that during the first meeting between Jacobsen and the ALPA representatives, “it was stated” that for ALPA to negotiate a final and binding agreement, the agreement would have to be approved by Woerth. Englert Depo. at 50.
Granof concurred that under the ALPA constitution and bylaws, there could be no final and binding settlement unless and until Woerth, ALPA’s president, had reviewed the agreement, it had been submitted to him with appropriate staff work, and he had signed off on it. Granof likened the process to negotiating a collective bargaining agreement — “You get a tentative agreement or settlement of whatever, but it’s not final and binding until, even if it’s reduced to writing and you know it’s TA’d, until the president signs off on it.” Granof Depo. at 56-57.
According to Granof, when Attarian said, “I have the authority to get the deal done,” he conveyed the impression that he had the authority, that Woerth had confidence in him, and that his recommendation to Woerth would carry considerable weight. Granof believed that Attarian was most concerned about money, and that he was saying, essentially, that he wanted EWA to come forward with a realistic offer so they could move forward. If EWA did that, Granof felt that Woerth had sufficient confidence in Attarian that, after legal review and proper staff review, the deal would likely be done. Granof Depo. at 85-87.
Kline also testified that Attarian stated during the session that he had the “authority to get the deal done” or “full authority to reach a deal.” However, while Kline was aware of the provision in ALPA’s constitution that only the president of ALPA had the authority to approve agreements, he stated that he believed nonetheless that if Attarian said he had authority, then he did, on behalf of the president. Tr. at 181-182; 284-289 (Kline).
Jacobsen testified that she believed that any agreement reached by ALPA with EWA would have to be approved by Woerth. Jacobsen Depo. at 95.
Morning Session
The mediation convened at 9:45 a.m. on February 5, 2003. The two groups of negotiators remained in separate rooms for most of the morning, and Jacobsen moved between them. McCurdy’s notes reflect that although the parties discussed the monetary issues in general terms, neither side made a specific monetary demand or offer during that morning session. Exh. D-l at 11-0239 to 11-0246.
Fausset described the morning session as a “back and forth” with no concrete offer. He stated that ALPA started at $50 million, then came down to $30-$35 million, while at the same time, EWA was at about $14 million. Fausset Depo. at 114-116.
Englert recalled that Jacobsen came into the ALPA room on the morning of February 5, and stated that EWA was at less (in terms of a monetary figure) than they had been in the Dallas mediation. According to Englert, everyone in the ALPA room “was just beyond disbelief.” Englert Depo. at 14-15.
Granof testified that during their first meeting with Jacobsen, the ALPA representatives discussed the number of pilots that ALPA felt might be eligible to participate in any severance funds that would be negotiated; and the effect of the decision by Arbitrator Harris. According to Gra-nof, a number of pilots “felt that they should be compensated for their entire careers” — an amount in the range of $180 to $200 million. Those pilots considered the range ALPA was talking about — $30 million — to be “chump change.” Thus, according to Granof, ALPA was concerned that the pilots might sue ALPA for violating the duty of fair representation by entering into a settlement that was far too low. He didn’t think this was an attempt to address the Burley issue — the issue raised by the Supreme Court’s ruling in Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945) (“Burley”) (union cannot settle grievance under Railway Labor Act without consent of individual employees) — which was separate. Granof Depo. at 64-75.
Granof also believed that the ALPA representatives were trying to convey that any settlement should be enough to get all but a small number of the pilots to participate and to agree to finality. He did not recall any discussion with Jacobsen of what would happen to pilots who decided not to accept the settlement and what their rights would be. He knew that subject had been addressed in Dallas, but didn’t recall it being addressed in San Francisco. Granof Depo. at 69, 73-74.
In Granofs view, the main issue preventing settlement was the amount of money. He felt that if the parties could not come to grips with the money issue, then there was no point in discussing the other elements of the settlement. He said that the Burley issue and the waiver issue had been previously discussed, and had been left unresolved. He reiterated that there had been previous discussions with Kline about a waiver, but that what the company ultimately demanded was not what he (Granof) had thought they meant by the traditional “waiver.” Granof Depo. at 79-81.
First Group Meeting
According to McCurdy’s notes, the ALPA representatives joined Jacobsen in the room with the EWA representatives at 12:30 p.m., where the parties engaged in a somewhat heated discussion until 12:57 p.m. Exh. D-l at 11-0243 to 11-0246; see also Haddock Depo. at 12-13, 109; Faus-set Depo. at 116. The ALPA representatives then left the room. The parties broke for lunch from 1:00 p.m. to 2:27 p.m.
Afternoon Session — EWA’s First Offer
The session reconvened at 2:27 p.m., with the two negotiating teams again in separate rooms. According to McCurdy’s notes, Jacobsen met with EWA representatives from 2:27 p.m. to 2:35 p.m. Exh. D-1 at 11-0246 to 11-0247. At that point, Fausset authorized Jacobsen to convey to ALPA an offer of $21.2 million — consisting of $20 million in “new money” in addition to the $1.2 million from the Harris arbitration award. Id.; Fausset Depo. at 117-118.
Fausset also gave Jacobsen a draft settlement document to convey to ALPA along with the $20 million offer. The draft settlement document consisted of a three-page document entitled “Final Settlement Agreement Between Emery Worldwide Airlines, Inc. and the Airline Pilots Association, International,” and a two-page document entitled “Settlement AgreementWaiver and Release.” Exh. D-3. According to Kline, if ALPA had agreed to the waiver/ release language, the shutdown grievance would have been dismissed, and any pilot that refused to sign the waiver and release would have received no money from the settlement, and some or all of that pilot’s share of the settlement funds would have gone back to EWA. Kline testified that the release was a material term of the settlement. Tr. at 303-312 (Kline).
Grant, who had not been present for the morning session, did attend the afternoon session. He stated that Fausset made a “series of offers” to resolve all outstanding issues between EWA and ALPA. The first offer from EWA was $20 million. Grant recalled that a settlement document was given to Jacobsen in conjunction with the monetary offer, part of EWA’s offer designed to resolve all outstanding issues. Grant always understood there were two components to the agreement — the agreement itself and a generic individual waiver. Grant Depo. at 47-53.
McCurdy’s notes reflect that as Fausset handed the draft settlement document to Jacobsen, he told her, “We also expect them to sign a full release that Sheldon [Kline] has put together. It is very important to us. We understand there needs to be some tweaking between the parties.” Exh. D-l at 11-0247.
McCurdy’s notes do not indicate, however, that the EWA representatives explained to Jacobsen that the document required a dismissal of outside lawsuits before flight crew members would be eligible to receive payment from a settlement of the shutdown grievance. In addition, Kline testified that he never explained the terms of the settlement and release to Jacobsen, and that he did not explain the relationship of waiver to any outside litigation the pilots might have. Tr. at 302 (Kline).
Grant also testified that the EWA representatives did not discuss the settlement document or the terms of the release with Jacobsen in any detail, but rather that they simply told her they were offering the $20 million and the release document— ‘We gave her the release document, and essentially said that was part of the deal.” He noted that Jacobsen did not come back to them later and say there were any problems with the substantive terms. Grant Depo. at 117-118.
McCurdy’s notes reflect that before leaving the EWA meeting room at approximately 2:35 p.m., Jacobsen told Fausett that if the ALPA negotiators found EWA’s monetary offer to be “in the ballpark,” they would need to discuss it with ALPA’s president. Fausset responded that Attari-an had said that if the offer was reasonable to him and to Haddock, then they would take if to Woerth and he would sign off on it. Exh. D-l at 11-0247.
Kline also testified that he had asked Jacobsen to give a copy of the draft settlement document to ALPA on February 4 (the day before the mediation), but that she had declined, telling him to give her the document the next day. Kline then decided to give the document to ALPA directly. He claimed that he telephoned Migliore on the evening of February 4 and asked to see him, and that he then delivered the document directly to Migliore in his hotel room. Tr. at 177-180 (Kline).
Communication of EWA Offer to ALPA
Migliore disputed Kline’s version of events. He testified that he first received the draft settlement document on February 5 from Jacobsen, that he did not receive a copy of the document from Kline the previous evening, and that Kline did not come up to his room or call him the previous evening. He said Jacobsen handed him a copy at about 2:30 p.m. on February 5, when she came up to ALPA’s caucus room. He recalled her saying, “Marcus, this is for you and the lawyers. This is from Sheldon [Kline]. It’s a rough draft. And you obviously are going to need to talk about it, and do further work on it.” He also stated that Jacobsen brought in a monetary offer at the same time, but that she did not say that the monetary offer was contingent on ALPA accepting the draft settlement document without any changes. According to Migliore, when he received the draft document, he “glanced at it relatively quickly.” Tr. at 389-392 (Migliore).
Attarian recalled that when Jacobsen brought up EWA’s initial offer of $20 million in new money, she also had what Attarian refers to as the “rough draft waiver documents that she’d been instructed to give to Marcus [Migliore] from Sheldon Kline.” The draft document, which contained the waiver and release language, was handed to “one of our attorneys.” Attarian was not handed the document and did not know exactly what it said. He stated that there were no copies made. Tr. at 69,113-114 (Attarian).
According to Attarian, Jacobsen did not say that the $20 million in new money was conditioned on the specific release and waiver terms contained in the draft document that she gave Migliore. He recalled her saying only that the document came from Kline, who wanted Migliore to have it, that it was a rough draft of the waiver language, and that the lawyers were going to have to work on it. Tr. at 89-90, 114 (Attarian).
Granof knew nothing about any document having been delivered to ALPA on February 4. He understood that Jacobsen had delivered the draft settlement document on the afternoon of February 5. The first time Granof actually saw the document was when Migliore showed it to him, towards the end of the day on February 5. As far as Granof knew, the settlement document was not discussed between ALPA and EWA. Granof Depo. at 92-94.
The only document Haddock recalled ALPA receiving from EWA on February 5 came as a draft agreement brought in by Jacobsen around 3:00 p.m. Jacobsen said the document had been prepared by EWA, by Sheldon Kline. Haddock did not go through thé entire document himself; instead, he looked over Migliore’s shoulder during the first half-hour after they had received the document. “Marcus had it in his possession, and there were a couple of issues that he was reading through that I looked at.” He recalled that Migliore might have “scribbled” something on the document. He had never previously seen the document, and was not aware of anyone making any copies. Haddock believed Migliore may have taken the document to a meeting with Grant late in the day. Haddock Depo. at 30-36.
ALPA Representatives’ Phone Call to Woerth
Hotel phone records produced in discovery show that the ALPA negotiating team placed a long-distance telephone call to the Washington D.C. home of ALPA President Woerth at 3:06 p.m. Exh. P-40; see Tr. at 447 (Migliore); 83-84 (Attarian). Attarian testified that all the members of the ALPA negotiating team were present in the room at the time of the call. Jacobsen was not present. Tr. at 74, 120-121 (Attarian).
Woerth recalled that the ALPA negotiators telephoned him on the evening of February 5, shortly after he arrived home. He did not recall receiving any calls that morning from Attarian, or any calls later in the day while he was still at his office. He could not recall the exact time of the call, but stated that he had just arrived home. The call lasted between 15 and 30 minutes. There were multiple parties on the line, on the speaker phone. Woerth Depo. at 12, 46-47.
Woerth recalled discussing a settlement amount of $23.8 million, and the subject of re-employment rights in the event the airline started up again. He said Haddock was particularly concerned about re-employment rights. With regard to the monetary settlement, Woerth’s concern was that the senior captains each get at least $100,000. He didn’t “approve” any particular settlement amount, but rather “considered the whole thing as an update.” Woerth Depo. at 13, 53-57.
Migliore told Woerth that he had received a document from EWA, but it was not clear to Woerth from whom the document had come. According to Woerth, Migliore said he had just started to review it, and that there was “all kinds of stuff in here I don’t understand why it’s here.” Migliore hadn’t yet reviewed the document thoroughly, but felt there were problems with EWA trying to get ALPA involved in “stuff that’s outside our collective bargaining area.” Woerth was concerned about anything that might put ALPA at risk. He recalled telling Migliore not to do anything to make matters worse for ALPA. “[M]y instructions to Marcus [Migliore] were absolutely make sure that the institution is protected, ... and we don’t make matters worse for ALPA by entertaining even in the remotest manner anything that doesn’t pertain to this shutdown grievance.” Woerth Depo. at 50-56.
According to Woerth, the ALPA negotiators told him they would give him an update later; no one told him during the call that the parties had reached agreement on anything. “We hadn’t reached agreement on money. We hadn’t reached agreement on entanglements of other litigation. We hadn’t reached agreement on the terms of a startup airline or of all the open issues.” Woerth Depo. at 53. Woerth concluded after the February 5 telephone call that the ALPA representatives were only going to try to button down a monetary amount of $25 million, and that “the rest wasn’t even solvable” in San Francisco. Woerth Depo. at 68-69.
Attarian recalled that the call was placed to Woerth in his home in Washington, D.C. late in the afternoon, and that it lasted approximately 20-25 minutes. The call originated from ALPA’s hotel meeting room, and the ALPA representatives told Woerth (over the speakerphone) that a $25 million figure had been discussed, plus waiver and start-up issues. Attarian told Woerth that amount would give the senior pilots approximately $100,000 in settlement, which Attarian felt represented “real money” or “true value” or “meaningful economic support for pilots” or “real money in the pilots’ pockets.” Attarian recalled that Woerth said “good job” about the $25 million figure. Woerth thought the $25 million figure “met the test” — i.e., was sufficient to meet the obligation to the pilots so there would be no future DFR litigation issues. Tr. 72-80 (Attarian). Attarian couldn’t recall whether EWA had made any monetary offer as of the time of the phone call, just that the first monetary offer was made mid-afternoon. Tr. at 84-86 (Attarian).
Attarian recalled that Haddock explained to Woerth what would happen if EWA started up a new airline. The team also discussed the final settlement documents provided by Jacobsen, and Woerth said he did not want ALPA exposed to lawsuits because of the waiver documents. Woerth also said he wanted the issue involving the restart of the airline to .be negotiated because he didn’t want litigation over that issue. Tr. at 73-78 (Attari-an).
According to Attarian, Woerth did not approve the settlement of the shut-down grievance, did not approve the draft settlement documents, and did not approve the waiver/release in the draft settlement documents. Attarian stated that one of many concerns was that EWA’s proposed waiver/release would require any pilot to dismiss outside litigation before receiving settlement money.- Tr. at 122-124 (Attarian).
Haddock recalled that Attarian started the conversation, making some initial comments regarding other business. He reviewed what had happened at the Dallas session in 2002, and -told Woerth about EWA’s current monetary offer. According to Haddock, ALPA hadn’t made a firm monetary proposal prior to the call to Woerth. The figure the ALPA representatives discussed with Woerth was $23.8 million in “new money.” Haddock recalled that ALPA made that monetary proposal after the telephone call. Haddock Depo. at 45-46,115.
Haddock recalled that the ALPA representatives decided to stick with $23.8 million “new money” plus $1.2 million old (Harris award) as the bottom line. He believed that Woerth was deferring to the judgment of the negotiating team as to what was attainable in terms of money. Woerth said they should put it all together and he would look at it. Haddock Depo. at 46-49.
Haddock recalled discussion of the start-up, which was a concern in the pilot group. Haddock favored going into the next contract period — 2007—and Granof or Migl-iore suggested that the agreement should include affiliates of CNF. Haddock Depo. at 47-48.
According to Haddock, the remainder of the discussion related to potential DFR issues for ALPA regarding waivers of rights for pilots in connection with current or pending lawsuits and current grievances. Haddock was less concerned about potential DFRs and more about individuals in the pilot group being able to pursue their own paths outside- the CBA, because he knew there were several pending grievances. Haddock Depó. at 49-51.
Haddock also recalled a lengthy discussion of the Burley issue — -which he described as “the union’s ability to give up the rights of individuals to litigate against the company.” According to Haddock, Migliore stated that he was not prepared to tell the EWA representatives that ALPA would make an agreement without review by his boss and also by outside counsel. Woerth responded, ‘Well, you [Attarian] and Gene [Granof] need to do it,” adding that the attorneys — Migliore and Granof — needed to make sure there was no liability for ALPA. According to Haddock, Migliore said, after a brief review of the draft settlement document, that there might be some Burley issues that ALPA might not be able to overcome, and he wouldn’t know until further legal review. Woerth reiterated.the importance of ensuring that any final agreement not subject ALPA to a DFR suit or other litigation. Haddock Depo. at 52, 57, 117-121.
Haddock said Migliore briefly discussed pending lawsuits. Haddock Depo. at 53-55. Haddock distinguished between “current” lawsuits and “pending” lawsuits, noting that there were two “current” lawsuits — one called the “California lawsuit” (a whistleblower suit) and the other a WARN Act suit in Ohio — and that there was also a “pending” lawsuit, which might be filed any day — the Del Turco lawsuit. Haddock Depo. at 117.
Haddock recalled Granoff stating that the timing of the arbitration was something that ALPA should consider in trying to reach a settlement with EWA — that it was better to settle for something reasonable today than litigate for something that might be increased down the road. However, Haddock didn’t recall Granoff saying anything regarding waivers or review discussed by Migliore. Woerth complimented the team on their efforts, though Haddock didn’t recall compliments on results achieved thus far. Haddock Depo. at 57-58.
Migliore testified that Woerth and the ALPA team discussed whether a $25 million total settlement would be sufficient from the standpoint of defending against a DFR action. Migliore told Woerth that he thought ALPA had a stronger case with regard to the permanent shutdown grievance than it had for the temporary shutdown grievance. Tr. at 892-395 (Migl-iore).
Migliore also recalled that Woerth and the ALPA team discussed EWA’s draft settlement document. Migliore told Woerth that Jacobsen had given them four or five single-spaced, tightly packed pages of material that he (Migliore) had only had time to glance at quickly, and that it was obvious that “there were going to have to be serious issues of review necessary” with respect to the document, in particular by the chief counsel of ALPA, and by outside counsel. Migliore understood Woerth to be concerned that ALPA be protected from pilots who might file suit against ALPA. Woerth told the ALPA representatives he would leave it to the lawyers to work out. Tr. at 395-399 (Migliore).
Granof heard the conversation from both ends, along with Migliore, Haddock, and Englert. He recalled that the focus of conversation was on money — -that with the “new money” plus the arbitration award, the total monetary settlement would be $25 million.
Either Englert or Attarian stated that the settlement would put as much as $100,000 in the pockets of the individual pilots — perhaps more in cases of senior pilots — and even to the less senior pilots the amount could be $80,000 or $90,000. Granof recalled some discussion about the possibility of EWA restarting the airline, and an agreement that if airline was restarted in 2004, the CBA would be reinstated. He recalled a suggestion from someone that the date be extended to 2007. Granof Depo. at 106-109.
Granof also recalled that Migliore explained to Woerth that the waiver issue had not all been settled, and that it was an issue that probably had to be worked out, primarily between the lawyers, if there was going to be a settlement. Granof stated that Migliore did not minimize the issue, and that Woerth’s response was, “Okay, but be sure that whatever you do that ALPA is protected.” Granof didn’t think the actual settlement document was discussed, and was not certain whether Migliore mentioned they had received such a document. He stated, however, that there was no discussion of its specific terms or provisions. Granof Depo. at 108-109.
Englert was present during the call to Woerth, although he was occupied with the computer. According to Englert, Woerth said, “Do the best you can and keep us legal.” Englert recalled a discussion about what would happen were an airline to be restarted, and also recalled a reference to review by outside counsel, in connection with the document Jacobsen had brought in. Englert Depo. at 30-34, 53-54.
ALPA’s “Counterproposal”
Kline testified that at around 3:30 p.m., he received a “counterproposal” from Migliore to the “final settlement agreement” (referring to he draft settlement document that EWA had previously provided to ALPA). He stated that he and Fausset met with Migliore at Jacobsen’s request, and that Migliore proposed a change in the draft settlement proposal. According to Kline, Migliore sought to change the provision, “Should EWA or CNF establish another Part 121 air carrier prior to September 18, 2004, such carrier shall offer employment as pilots to [individuals on EWA Pilot Seniority List],” to read, “Should EWA, CNF, or any subsidiary thereof establish another Part 121 air carrier prior to September 18, 2007, such carrier shall offer employment as pilots to [individuals on EWA Pilot Seniority List].” Tr. at 183-184 (Kline).
Kline claimed that Migliore stated that this provision came directly from Woerth, was “virtually, nonnegotiable,” and was very important to Woerth, and that if EWA didn’t agree to make those changes, it didn’t matter what the money was. According to Kline, Fausset subsequently received approval for that proposal from Schmoller, CNF’s general counsel. Kline then called Migliore in the ALPA suite and told him they agreed. Tr. at 184-188 (Kline).
Migliore disputed Kline’s account, asserting that this meeting never took place. He testified that the ALPA representatives at some point gave the EWA representatives “a heads-up that this [issue] was a concern,” through Jacobsen, and claimed that the agreement regarding re-employment rights “was essentially tied down” at the 2-on-2 meeting that occurred some time after 5:45 p.m. (discussed below). Tr. at 414-416 (Migliore).
ALPA’s Monetary Proposal and EWA’s Response
EWA’s next meeting with Jacobsen was at 3:45 p.m. According to McCurdy’s notes, Jacobsen conveyed ALPA’s monetary demand — a total of $25 million, or $23.8 million in “new money,” plus the $1.2 million Harris award. Jacobsen noted that this amount was a little above $55 thousand per employee, adding, “This is after going to the mountain. That will button it up.” Exh. D-l at 11-0247.
Both Fausset and Kline recalled this meeting, in which Jacobsen conveyed ALPA’s offer to settle for $23.8 million in “new money.” Fausset Depo. at 118; Tr. at 192, 218-219 (Kline). The entire EWA bargaining team was present. Tr. at 192 (Kline). In Kline’s view, Jacobsen’s statement, “This is after going to the mountain,” could be interpreted only as meaning that the ALPA team had obtained the number from Woerth. Up to that point, according to Kline, EWA had never officially offered as much as $23.8 million in settlement of the parties’ disputes. Kline added, however, there had been an off-the-record proposal in the Dallas mediation, to settle everything for $25 million. Tr. at 219-220 (Kline).
According to McCurdy’s notes, Jacobsen left the EWA meeting room at 3:49 p.m., and was called back in by Fausset at 4:03 p.m. Exh. D-l at 11-0247. Jacobsen then met with the EWA representatives from 4:03 p.m. to 4:09 p.m. During this meeting, Fausset authorized Jacobsen to convey an offer to ALPA of $20.8 million in “new money” plus the $1.2 million arbitration award. Exh. D-l at 11-0247 to 11-0248. Jacobsen left the EWA room at 4:09 p.m. When she returned at 4:21 p.m., she asked Fausset to join her in the “woodshed.” Exh. D-l at 11-0248; Fausset Depo. at 119.
“Woodshed” Meeting
According to McCurdy’s notes, the “woodshed” meeting occurred between 4:21 p.m., when Jacobsen and Fausset left the EWA meeting room, and 4:28 p.m., when they returned. Exh. D-l at 11-0248. Fausset first described the “woodshed” as a little conference room 25-30 feet on the left side of the corridor where Attarian and Fausset had met Ja-cobsen twice. Fausset then stated that there were actually three different “woodshed” meetings. The first such meeting occurred after lunch, in the hallway down from the little conference room. The subject was “issues of money and the rest of the deal.” Fausset Depo. at 119— 124.
In the second meeting — the one occurring between 4:21 p.m. and 4:28 p.m.— Fausset, Attarian, and Haddock met with Jacobsen. Fausset offered to “split the baby” — split the difference between the $23.8 million and the $20.8 million — but Attarian said, “No.” The third meeting was “when we shook hands and agreed on the 23.8.” Fausset Depo. at 120-127.
Attarian recalled that the “woodshed” meeting with Haddock, Fausset, and Ja-cobsen was short, maybe 5 minutes, and occurred after ALPA made the $23.8 million counteroffer and before EWA agreed to the $23.8 million. Attarian also stated that Fausset had tried to “split the baby” but that he (Attarian) would not agree. According to Attarian, no one discussed the draft settlement document or the waiver/release at this meeting. Attarian stated that he had no further meetings with Fausset or other EWA representatives. Tr. at 126-128 (Attarian).
Subsequent Proposals and Agreement on Monetary Figure
McCurdy’s notes reflect that at 4:28 p.m., Jacobsen and Fausset returned to the EWA room, where Jacobsen remained until 4:40 p.m. According to McCurdy’s notes, Fausset next offered $22.8 million (in “new money”), and Jacobsen left the room at 4:40. See Exh. D-l at 11-0248; Fausset Depo. at 127.
Attarian testified that he returned to the ALPA room following the “woodshed” meeting. He recalled receiving a telephone call from Jacobsen a few minutes later, asking what he would say to $22 million (in “new money”). Attarian’s response was “Tell them ‘bye.’” Attarian recalled that the ALPA representatives received another call perhaps five minutes later, saying that EWA had met ALPA’s new money demand. Tr. at 129 (Attarian).
McCurdy’s notes and the testimony of other witnesses report a slightly different sequence. McCurdy’s notes show that from 4:40 p.m. to 4:42 p.m., Jacobsen met with the ALPA representatives, and at 4:42 p.m. returned to the EWA representatives’ room. Exh. D-l at 11-0248. According to Fausset, Jacobsen reported that ALPA was holding firm at $23.8 million. Fausset Depo. at 127-128. Jacobsen then left the room at Fausset’s request, Exh. D-l at 11-0248; and the EWA representatives (Fausset, Kline, Mccurdy, Fierce, and Marshall) had a caucus. Fausset stated that he was “in a tirade,” and was “pissed,” but that he reviewed the future and pending litigation expenses, and decided the $23.8 million was a good trade-off for settling everything. He called Schmol-ler, who agreed. Fausset Depo. at 127-135.
Schmoller denied that Fausset had called to ask for approval' — he claimed, rather, that Fausset had called simply to run the $23.8 million figure by him. Schmoller stated that he and Fausset had a “long-standing relationship,” adding that “I’m kind of his mentor ... the guy that brought him into the company, into the headquarters part of it.” Schmoller Depo. at 11-12. He said that Fausset called to tell him the parties could have an agreement if EWA went to $23.8 million. Schmoller asked whether “the other stuff’ was settled, and Fausset said it was. Schmoller then said that Fausset should “do it.” Schmoller Depo. at 40-41.
McCurdy’s notes reflect that Jacobsen returned to the EWA room at 5:15 p.m., and met with EWA representatives until 5:35 p.m. During that meeting, Fausett told Jacobsen, “We agree to settle for $23.8 million. We insist that anyone who participates signs a full release. I think the attorneys can take over now.” At that point Jacobsen said, “They will want to talk to [Woerth] about it, I am sure. The attorneys can take it from here. I will let them know. I have Jeff [Haddock] and Howard [Attarian] come down.” Exh. D-l at 11-0248 to 11-0249.
Migliore believed it was Jacobsen who informed the ALPA representatives that EWA had come up to the $23.8 million figure, but couldn’t recall whether she telephoned them or came up to the ALPA meeting room. He did not recall her saying that EWA’s acceptance of the $23.8 million figure was contingent on ALPA accepting EWA’s draft settlement document without any phanges. Tr. at 399^100 (Migliore).
Attarian recalled that when Jacobsen called ALPA to say that EWA had accepted the $23.8 million counteroffer, she stated that the parties would have to engage in further negotiations regarding the other details. Attarian said that Jacobsen also came up to the ALPA room to deliver the news in person. He claimed that Jacobsen did not tell the ALPA representatives that EWA’s acceptance of that figure was conditioned on the waiver; rather, she said that the lawyers were going to work out the details. Attarian assumed that these “details” were “the details of the rough document that contained the waiver release.” He thought it was understood that this was “a piece of the business that was unfinished and an issue that was unfinished.” Attarian believed that Jacobsen knew ALPA had to get approval of ALPA’s president. According to Attarian, “one piece of the settlement was reaching the monetary figure, which we had taken a long time to get to, and now the other issues certainly had to be, you know, resolved!” Tr. at 99-100, 128-134 (Attarian).
Attarian testified that in the last conversation of the day between Jacobsen and the ALPA representatives, Jacobsen did not say that EWA believed or that she herself believed that ALPA had already agreed to EWA’s draft settlement document or the specific terms of the settlement and release. Nor did she say that the company’s offer of $23.8 million in “new money” was conditioned on ALPA’s accepting the draft settlement document with no changes or on ALPA’s accepting the specific terms of the waiver and release. Attarian did not tell Jacobsen that ALPA was agreeing to the draft settlement document or to the waiver and release contained in the document. Tr. at 132-135 (Attarian).
Granof believed that Jacobsen advised ALPA that EWA had accepted ALPA’s $23.8 million “new money” demand, but couldn’t recall whether it was in person or on the phone. He did not recall Jacobsen saying there were any conditions on EWA’s acceptance of the $23.8 million. He didn’t recall exactly what everyone said after she told them the demand had been accepted. He believed that Attarian, Migl-iore, Haddock, and Englert were also present in the room at the time. Granof Depo. at 96-99.
Haddock testified that Jacobsen told the ALPA negotiators late in the afternoon that the $23.8 million figure was acceptable. He stated that Jacobsen did not reference the draft settlement document when she announced the agreement to the money demand. Haddock Depo. at 99, 110-111.
Englert testified that Jacobsen came into the room and said, “They have met your $23.8 million. They’ve met your number.” According to Englert, Jacobsen did not say “agreement.” He also recalled Jacobsen asking that there be confirmation between the two parties that they had come to a meeting of the minds on the number. He recalled that Haddock and Migliore went down to confirm with EWA/ EWW. Englert Depo. at 17-18
After Fausset agreed to ALPA’s demand for $23.8 million, and Jacobsen said that “the attorneys can take it from here,” Grant did not consider the issue of whether there would be a settlement agreement and releases in the form Kline had prepared to still be an open question. He understood there would be some things the lawyers would work on, but when he heard Jacobsen say there was a deal, he understood that “all conditions precedent to the formation of the agreement had been reached.” Grant Depo. at 79-87.
Grant testified that when Jacobsen came back to EWA after conveying EWA’s acceptance of the $23.8 million monetary figure to ALPA, she said there was a deal, and that “based on the course of conduct,” he understood that the “deal” included “the material terms of the documents.” Grant agreed, however, that after EWA had given Jacobsen the settlement document to give to ALPA, nearly all of the following discussions concerned the dollar figure to be arrived at between the parties. Grant Depo. at 119-120,129-130.
Kline stated that the entire EWA bargaining team was present in the late afternoon when Jacobsen conveyed ALPA’s proposal of $23.8 million to EWA, and when Fausset agreed to the $23.8 million figure. According to Kline, at the time Fausset gave Jacobsen the authorization to accept the $23.8 million offer, Fausset told her it was the money plus the settlement/release document — that they went together. Kline stated that previously in Jacobsen’s discussions with EWA, Fausset had linked the money proposal and the acceptance of the release and settlement document. Tr. at 192-193, 295 (Kline).
Kline testified that Jacobsen then left the EWA room, went back upstairs to ALPA’s suite to communicate EWA’s acceptance of the money, returned with Atta-rian, came back into the EWA room and said either, “You have a deal,” or “We have reached an agreement,” or “We have an agreement,” and asked Fausset to accompany her outside the room. Kline saw Fausset leave with Jacobsen, and stated that he next saw Fausset and Jacobsen a few minutes later. Tr. at 194-195; 294-296 (Kline).
The ALPA bargaining team then came downstairs to meet with the EWA team. This was about 5:45 p.m. Kline recalled seeing Haddock, Attarian, Migliore, and Englert. He couldn’t recall whether Gra-nof came down for that meeting or not, but stated that Jacobsen was present briefly. According to Kline, it was “quite exuberant in the room, people shaking hands, going around the room.” Kline stopped and talked a little bit with Attarian, saying something to the effect of, “Congratulations. You know, we did it again. . We reached another agreement.”. Attarian responded with similar words, adding that “it turned out not to be a fool’s errand after all.” Kline shook Attarian’s hand, and also recalled shaking hands with Haddock and Migliore. Tr. at 195-197 (Kline). Kline also stated that Fausset and Attarian shook hands on the “agreement.” Tr. at 295 (Kline).
Grant recalled Jacobsen asking Fausset to go out and shake hands. Although Grant believed “there had been a handshake,” he himself did not witness a handshake. He stated that Jacobsen left quickly because she had to catch a plane. He also stated that Jacobsen never said that the attorneys had looked at the agreement and that ALPA had agreed to all terms. Grant Depo. at 60-69.
Haddock recalled shaking hands with Fausett at the end of the day and saying, “Hopefully, we can put something together.” According to Haddock, Fausset did not say anything to Haddock to indicate he believed the parties had a settlement. Haddock Depo. at 106-08.
Granof was not aware of Fausset and Attarian accompanying Jacobsen to a place away from the ALPA meeting room after she had announced EWA’s acceptance of the money demand. Nor was he aware of Fausset and Attarian exchanging any further terms of settlement between them after the agreement was reached on the money demand. Granof did not recall Ja-cobsen inviting all the participants into the room to shake hands with one another after the agreement was reached on the money, and did not himself recall shaking hands with any of the negotiators at the conclusion of the mediation. Granof Depo. at 104-105.
When she was deposed in September 2004, Jacobsen was able to recall only a few details of the February 2003 mediation because her memory had been affected by the course of chemotherapy she had undergone in 2004. She did not recall bringing Fausset' and Attarian together late in the day, and didn’t recall any handshake. She stated, however, that she did have a practice of bringing the parties together to congratulate one another at the conclusion of a successful mediation. As best she could recall, she had left the mediation on February 5 believing that there was an agreement that was contingent on a release from the pilots. Jacobsen Depo. at 46-48, 65-66, 78.
Jacobsen recalled that there was an agreement on the money and that the ultimate agreement was contingent on the releases being resolved or acquired or achieved or worked out. Jacobsen Depo. at 66, 69, 81-82. When she used the terms “achieved” or “acquired” or “worked out” in reference to the releases, Jacobsen meant that the contingency involved ALPA and EWA negotiating and reaching agreement on the terms of a release and waiver. Jacobsen Depo. at 85. She added, however, “[I]f they’re still working something out, that’s not a final agreement.” Jacobsen Depo. at 96-97. Jacobsen recalled that obtaining the releases was important to the company, in order to justify paying out the $23.8 million. Jacobsen Depo. at 71, 87.
Jacobsen also recalled receiving a settlement proposal from EWA at the mediation, which she passed on to ALPA. She did not read the EWA proposal, but rather simply presented it to the ALPA representatives, and told them that the money was contingent upon the parties being able to work out or negotiate a resolution to the release. She was not specific about the kind of release, and believed the parties were going to be meeting after she left the mediation to continue discussions on the subject of the release. Jacobsen Depo. at 72-76, 91. She didn’t recall ever saying that the agreement was contingent on ALPA’s acceptance of the precise language regarding the releases that appeared in EWA settlement document. . Jacobsen Depo. at 88-89.
Attarian testified that Jacobsen never stated that ALPA and EWA had reached an “agreement.” Tr. at 140 (Attarian).
Woerth stated that he would be surprised if Jacobsen had said that EWA and ALPA reached agreement on all issues in the mediation. Moreover, no one has ever told him that. Woerth Depo. at 63. Woerth testified that as president of ALPA, he never approved a settlement of the shutdown grievance with Emery Air Freight. Woerth Depo. at 69-70.
The “2-on-2” Meeting
Migliore believed that shortly after communicating EWA’s acceptance of the $23.8 million figure, Jacobsen suggested to Atta-rian that there be a follow-up meeting between ALPA and EWA. Migliore believed the purpose of the meeting was to “touch base” — to confirm that both sides had told each other face-to-face that $23.8 million was the monetary figure. Tr. at 400-401 (Migliore).
Granof recalled that after the call to Woerth, Migliore and Haddock went down to meet with some of the EWA representatives, and that by the time they came back, there wasn’t much of the day left before dinner. Granof Depo. at 110. Granof didn’t ask to be included in the 2-on-2 meeting, wasn’t asked to attend, and was “more than happy not to.” There wasn’t any reason for him to be there. He thought it was perfectly appropriate for Migliore and Haddock to be the two people who went down there. Granof Depo. at 117-119.
The participants in the 2-on-2 meeting were Kline (for EWA), Grant (for EWW), and Migliore and Haddock (for ALPA). Tr. at 139 (Attarian); Tr. at 199-200 (Kline); Haddock Depo. at 78. Migliore stated that Attarian made the decision that Migliore and Haddock should go down to meet with the EWA representatives. Tr. at 401 (Migliore).
Attarian testified that after the parties reached agreement on the numbers, two members of the ALPA group (not including Attarian) went down to discuss the remaining terms with EWA. Two remaining items for discussion were re-employment rights in the event of a start-up, and the waiver. Attarian stated that Migliore made it clear that both inside and outside counsel would look at the waiver language before any signoff. Tr. at 135-139 (Attari-an).
Migliore testified that before he went down for the meeting,