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The Niccolo Machiavelli Part 1
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The Niccolo Machiavelli "Remedy" Award Part One
The AEPA has received a remarkable number of calls regarding Arbitrator Nicolau's "Remedy" Award. Every pilot has perceived that Arbitrator Nicolau did not issue a remedy, he attempted to re-write Letter 3/Supplement W.
As the AEPA previously stated, Arbitrator Nicolau exceeded the limits of his jurisdiction.
More importantly, ALPA abdicated its duty to represent the Flow-Through pilots and never demanded that Arbitrator Nicolau remain within the "narrow, disputed question" (see Nicolau Opinion and Award page 9 line 17) of remedy on the original "narrow question" (see Nicolau Opinion and Award page 2 line 12) which was answered in the affirmative.
Refer again to Arbitrator Nicolau's Opinion and Award page 9 beginning on line 12 and concentrate on line 18 and 19 and page 10, lines 1 and 2. What you will notice is that American Airlines correctly stated the limitations of the arbitrator's authority.
Beginning line 18, "That question was whether Eagle pilots with AA seniority numbers were entitled to attend AA training classes. Once that question was answered, the only remaining issue was what remedy should be fashioned for those pilots, not others."
Refer to Letter 3/Supplement W.VI. B Dispute Resolution Procedures:
"The jurisdiction of the neutral (arbitrator) shall be limited to the disputes involving the interpretation or application of this Supplemental Agreement"
"limited to the disputes" The dispute in this issue was if American Eagle Flow-Through pilots were entitled to go to AA training classes beginning in June 2007.
Arbitrator Nicolau's jurisdiction was limited to the above dispute (question). In his October 18, 2009 Opinion he answered the above question in the affirmative.
His authority on remedy was limited (correctly stated by AA above) to correcting the breach of Letter 3/Supplement W.
Arbitrator Nicolau acknowledges that a breach of Letter 3/Supplement W occurred when the American Eagle pilots with AA seniority numbers were not transferred to AA (see Nicolau Opinion and Award page 13, beginning line 15 and ending page 14, line 5).
There are numerous questionable statements made by Arbitrator Nicolau in his Opinion and Award and the AEPA will continue to bring these questionable statements to the attention of the American Eagle pilots.
For the purposes of discussion, below is the discussion of today's question.
Refer to page 2 of Nicolau's Opinion and Award:
"That same question was raised before Arbitrator LaRocco in the remedy phase of FLO-0903, but his ruling was that he lacked jurisdiction to provide an answer because the Parties previously stipulated remedy question did not encompass that issue"
The parties previously stipulated remedy question.
The "remedy question", asked of Arbitrator LaRocco, referred to above was as follows:
"Does the Arbitrator have jurisdiction to decide whether AE flow-through pilots were entitled to attend AA training classes ahead of TWA new hire pilots and/or whether AE flow-through pilots have a priority to attend upcoming AA training classes"
The above is very interesting because Arbitrator Nicolau states that because the Four Parties (AA,AE,ALPA and APA) never stipulated in their remedy question (before Arbitrator LaRocco) if AE flow-through pilots were entitled to attend AA training classes ahead of TWA new hire pilots, Arbitrator LaRocco refused to answer the question and, as a result, the question was "placed before me on June 1, 2009".
Who never stipulated the remedy question if AE flow-through pilots were entitled to attend AA training classes in FLO-0903?
It was ALPA, in fact, ALPA Lawyer Wayne Klocke actually stipulated to Arbitrator LaRocco that ALPA was not seeking to transfer AE flow-through pilots to AA, but only wanted more AA seniority numbers (see LaRocco Supplemental Opinion and Award dated October 28, 2008 page 31 and 32). Remember, ALPA filed Grievance FLO-0903 and as such, ALPA had the ability and responsibility to "stipulate the question".
Arbitrator LaRocco, in his Opinion and Award dated May 11, 2007 actually disregarded the request by ALPA not to transfer AE flow-through pilots to AA when he ruled that the TWA LLC new hire AA pilots were "not excluded from Section III of Letter 3/Supplement W."
If the TWA LLC new hire AA pilots were not excluded then they were included in Letter 3/Supplement W and being included, Letter 3.III.A should have been applied when the TWA LLC pilots attended AA new hire training classes.
"At least one (1) out of every two (2) new hire positions per new hire class at AA will be offered to CJ Captains who are line pilots and who have completed their IOE at AMR Eagle Inc."
Why did ALPA purposely disregard Arbitrator LaRocco's Award and not demand that AE Flow-Through pilots be transferred to AA, at a ratio of at least one (1) out of every two (2) TWA LLC new hire AA pilots?
The only answer is that ALPA remained committed to its position - stipulated by ALPA lawyer Wayne Klocke in the initial hearing of FLO-0903 that - no flow-through pilots were to transfer to AA. The remedy ALPA sought was to withhold the flow-through pilots in exchange for more AA seniority numbers.
Unfortunately for ALPA Arbitrator LaRocco only awarded 154 additional AA seniority numbers and not the hundreds that ALPA wanted when it conspired with AA, AE and the APA to withhold the AE flow-through pilots indefinitely in exchange for hundreds of AA seniority numbers.
ALPA needed another arbitration to try again to get the hundreds of AA seniority numbers it failed to get from Arbitrator LaRocco.
That is why a question had to be placed before Arbitrator Nicolau. ALPA needed an arbitration.
Remember, Arbitrator LaRocco had already ruled that TWA LLC pilots were new hire pilots when called to attend new hire training classes at AA. Letter 3/Supplement W was in effect and the Four (4) Parties were contractually obligated to adhere to the contract.
No further Arbitration was needed. ALPA should have demanded that AA, AE and APA comply with Arbitrator LaRocco's Award.
If AA, AE and the APA did not comply, ALPA, under Letter 3/Supplement W VI. D, was entitled to have Arbitrator LaRocco's decision enforced in Federal Court
Furthermore remember, Arbitrator Nicolau confirmed that Letter 3/ Supplement W was breached when AE flow-through pilots were not transferred to AA after Arbitrator LaRocco determined that TWA LLC pilots were new hire pilots in a new hire class when called to training at AA.
If Letter 3/ Supplement W had been adhered to and AA needed 244 pilots (244 TWA LLC pilots were called to training at AA) then, at least, 122 of the 244 pilots would have been AE flow-through pilots. If 122 AE flow-through pilots had been transferred to AA then the 83 junior former TWA LLC new hire AA pilots (see page 11 Nicolau Award line 3) who were furloughed on February 28, 2010 would never have been called to AA in the first place.
Make sure you understand the above, 83 TWA LLC pilots were incorrectly called to training at AA instead of 83 AE flow-through pilots thereby "breaching the agreement".
Arbitrator Nicolau rewards the breach of Letter 3/ Supplement W by continuing the breach of Letter 3/ Supplement W and ruling that the previous incorrectly trained junior TWA LLC pilots must be recalled to AA before the AE flow-through pilots, who should have been at AA in the first place.
Where is ALPA while Arbitrator Nicolau further harms the American Eagle flow-through pilots by denying them the undisputed rights embedded in Letter 3/ Supplement W?
Also, remember that the AE flow-through pilots who should have been transferred to AA in June 2007 under Arbitrator LaRocco's Opinion and Award were more senior to the TWA LLC pilots and would never have been furloughed by AA in the February 28, 2010 furlough if the AE flow-through pilots had been called to AA new hire training classes as demanded by Letter 3/ Supplement W.
The most junior of the 286 AE flow-through pilots mentioned in Arbitrator Nicolau's Opinion and Award is 212 numbers more senior on the AA seniority list than the most senior of the 102 "AA" pilots furloughed on February 28, 2010.
ALPA did not want to comply with the "narrow" award from Arbitrator LaRocco because ALPA demanded hundreds of AA seniority numbers and Arbitrator LaRocco only awarded 154 additional AA seniority numbers.
Arbitrator Nicolau was called in to give ALPA the hundreds of AA seniority numbers it demanded. To achieve the hundreds of AA seniority numbers ALPA had to allow Arbitrator Nicolau to re-write Letter 3/ Supplement W as a pay-off to AA, AE and the APA.
The question before Arbitrator Nicolau was simple and narrow.
Why did Arbitrator Nicolau stray from the "narrow" question?
Who gave Arbitrator Nicolau jurisdiction over "time to captain", a future unsigned agreement on preferential hiring, denial of AA A-Fund and B-Fund benefits, the lack of staffing at American Eagle airlines, the irrevocable "transfer to AA" choice for 286 flow-through pilots but not for the remaining 241 flow-through pilots etc.
The remedy question Arbitrator Nicolau was asked to answer was simple and narrow and not complex and difficult.
Letter 3/Supplement W was breached when American Eagle flow-through pilots were not transferred to AA in June 2007 and as AA stated on page 10 of Arbitrator Nicolau's Opinion and Award, the only remaining issue was what remedy should be fashioned for those pilots, not others.
In Part Two the AEPA will discuss Arbitrator Nicolau's re-write of the "time to captain".
In particular, the AEPA will discuss the re-write of the "time to captain" as it pertains to Letter 3/ Supplement W III. A & B. If an AE pilot who was previously awarded an AA seniority number is now removed from the AA pilot seniority list, how will the "at least one (1) out of every two (2)" requirement" of Letter 3. III. A be adjusted?
Arbitrator Nicolau says "SuppW/Letter 3 was crafted in 1997. Much has changed since then." (page 12) then proceeds to re-write Letter 3 to the detriment of the AE flow-through pilots after acknowledging that AA, AE, ALPA and APA breached Letter 3/ Supplement W.
Who asked him to do that and where was ALPA while Arbitrator Nicolau continued to breach Letter 3/ Supplement W?
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Posted on Thursday, April 15, 2010
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