Southwest Airlines pilots were misled by Boeing's assurances the 737 MAX aircraft was safe to fly before a pair of deadly crashes over a five month period caused the model to be grounded, a lawyer for the pilots union told Texas Supreme Court justices Wednesday.
The case could decide whether the pilots can sue over lost wages from the downed aircraft.
Arguing for the Southwest Airlines Pilots Association, or SWAPA, attorney David Coale said those misrepresentations amounted to buying a "bum steer" when signing a collective bargaining agreement in which the pilots agreed to fly the aircraft before its eventual grounding.
"You told me a lie that messed up my thinking process," Coale said, laying out for justices one of the union's basic arguments. "I wasn't able to make an intelligent decision. That decision had consequences."
Coale's argument is key to rebutting a central claim from Boeing — that the pilots knew what they were getting, because they signed off on two collective bargaining agreements with Dallas-based Southwest in 2006 and 2016 requiring them to fly the 737.
In that case, the union can not sue in state court because those claims would be preempted by the Railway Labor Act, which governs airline and railroad labor relations, Boeing says.
Coale rejected that line of reasoning during Wednesday's oral argument, telling justices CBAs are negotiated between the union and the airline — not a third party.
He also argued the 2006 CBA had no bearing on whether or not misleading statements caused them damages 10 years later.
"Their counterfactual thing about, 'well, we would have fallen back to [the 2006 agreement] — why?" Coale said. "If they're saying at that time, 'we made a lousy plane, it falls out of the sky,' we wouldn't have fallen back to that agreement. There would have been something else that would have come along."
Neither Boeing nor SWAPA responded to requests for comment.
In October 2018, Lion Air Flight 610 crashed into the Java Sea 13 minutes after takeoff, killing 189 people. Five months later, on March 10, 2019, 157 people died when Ethiopian Airlines Flight 302 crashed six minutes after takeoff. The Federal Aviation Administration found both were likely caused by a mechanism that could make the nose of the 737 MAX dip due to low speeds like during takeoff.
The U.S. Department of Justice found Boeing knowingly hid that information from the FAA so it wouldn't have to spend more money on pilot training.
Boeing and the DOJ are still negotiating a plea deal over the incidents. Last week, a federal judge in Fort Worth gave the two sides four more weeks to come to an agreement after a previous deal was rejected in December.
The suit at the center of Wednesday's hearing is not the same as a 2019 lawsuit in which SWAPA sued on behalf of union pilots and the organization itself. The union argued it lost member dues and money spent on legal fees in connection with the DOJ’s investigation into Boeing.
SWAPA obtained the assigned right to sue on behalf of 8,794 of its members in the middle of that lawsuit, but the Fifth Court of Appeals ruled the union lacked standing to bring claims on behalf of its members and could possibly file another suit — resulting in the 2021 suit.
Arguing for Boeing, attorney Anne M. Johnson said Boeing's status as a third-party, non-signatory to the collective bargaining agreement was irrelevant — any case that would involve interpreting the CBA is preempted by federal labor law.
She added that the law is meant to allow participation by the employer — in this case, Southwest — who is not a party in this lawsuit.
"It should not be decided in a Dallas state court, in which Southwest is not a party, what their collective bargaining agreement means," she said. "And make no mistake, that is exactly what SWAPA intends to do."
Additional reporting by Toluwani Osibamowo.
