Thursday, September 08, 2005
Injunction Function
Last Thursday there was a hearing in D.C. The issue at hand was an injunction filed by Flight Service controller union NAATS to stop the Lockheed contract from taking effect until their age discrimination complaint can be heard and ruled on in court. The charge is that the contracting out adversely impacts controllers based on their age; a large portion are over 40 (the threshold for such complaints) and many will suffer major financial damage through total loss of retirement benefits just before becoming eligible to claim them. The decision on whether or not to grant the injunction should he handed down this week. NAATS president Kate Breen is optimistic about the outcome.
We, on the other hand, are skeptical that this will be a successful venture. As we understand it, an injunction can only be issued under very particular circumstances: 1) plaintiff (NAATS) shows a good chance of prevailing on the merits in court. 2) no other person will be harmed by the delay. There are other tests, but let’s look at these two.
In the first case, NAATS can only win a discrimination suit on court if age is substantially the only apparent factor driving the outsourcing decision. But while the FAA has publicly put forth the ‘aging workforce’ argument up front, they’ve also listed a number of other reasons to contract out FSS, such as inherent inefficiencies, and old technology and infrastructure. To the second point, it can be argued that Lockheed, who has invested a lot of money in this contract, could suffer financially if there is a delay. It has been reported that one of the NAATS witnesses stated that the controllers will be hurt, not exclusively, but worse than Lockheed.
Some who attended the injunction hearing are heartened by the fact that the judge took the apparently unusual step of allowing NAATS to present witnesses as well as a power point presentation (normally it's just two lawyers talking). We’re not so sure this is a good sign. The judge could simply have been closing all possible doors to an appeal, knowing from the pre-hearing briefs that NAATS stood very little chance.
A caveat to all the above; we are speculating in an area where we have no expertise, and hope that we are very wrong.
We, on the other hand, are skeptical that this will be a successful venture. As we understand it, an injunction can only be issued under very particular circumstances: 1) plaintiff (NAATS) shows a good chance of prevailing on the merits in court. 2) no other person will be harmed by the delay. There are other tests, but let’s look at these two.
In the first case, NAATS can only win a discrimination suit on court if age is substantially the only apparent factor driving the outsourcing decision. But while the FAA has publicly put forth the ‘aging workforce’ argument up front, they’ve also listed a number of other reasons to contract out FSS, such as inherent inefficiencies, and old technology and infrastructure. To the second point, it can be argued that Lockheed, who has invested a lot of money in this contract, could suffer financially if there is a delay. It has been reported that one of the NAATS witnesses stated that the controllers will be hurt, not exclusively, but worse than Lockheed.
Some who attended the injunction hearing are heartened by the fact that the judge took the apparently unusual step of allowing NAATS to present witnesses as well as a power point presentation (normally it's just two lawyers talking). We’re not so sure this is a good sign. The judge could simply have been closing all possible doors to an appeal, knowing from the pre-hearing briefs that NAATS stood very little chance.
A caveat to all the above; we are speculating in an area where we have no expertise, and hope that we are very wrong.
# posted by Skywise @ 8:12 AM 
