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Nicolau Award Part II
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The least initial deviation from the truth is multiplied later a thousand fold. ~Aristotle
The vast majority of American Eagle pilots do not believe Arbitrator George Nicolau, when he claims that ", the Award that follows is my Award", in his April 9, 2010 Opinion and Award on Grievance FLO-0108.
In fact, of the many pilots who I have personally spoken to, as opposed to pilots speaking to other AEPA Advisory Council members, about the FLO-0108 Opinion and Award, not a single pilot believes that the Award is Arbitrator Nicolau's Award. Every pilot believes that Arbitrator Nicolau signed off on a hastily, badly written and ambiguous settlement proposal presented to him by the "Four (4) Parties" (American Airlines management/American Eagle management/ALPA/APA) to Letter 3/Supplement W.
Arbitrator Nicolau is an experienced jurist who obtained his J.D. (Doctor of Law/Jurisprudence) in 1951. He has been the President of the National Academy of Arbitrators, the Vice Chair of the United States Branch of the International Society of Labor and Social Security Law, the Arbitrator for Major League Baseball, an author of numerous books and papers and he led the Equity Actor's Association strike that shut down Broadway in 1960. He has arbitrated numerous railway and airline disputes.
The Award in Grievance FLO-0108 is not the Award of an experienced arbitrator and professional jurist; the award is ambiguous, indefinite and imprecise, but if George Nicolau wants to own the award, it is all his.
This Part II was scheduled to be a discussion of Arbitrator Nicolau's re-write of the "time to Captain" at AA. As you are aware, Arbitrator Nicolau has so far changed his mind three (3) times, in less than one (1) month, about "the interpretation and application of this Supplemental Agreement" regarding the issue of "time to Captain".
In his April 9, 2010 AWARD he ruled that the "time to Captain" at AA would be applied to the flow-through pilots "from the time each CJ Captain would have transferred to American had the breach not occurred"
The "breach" began with the AA new hire class of June 6, 2007.
April 16, 2010, ALPA reported that Arbitrator Nicolau had changed his mind (clarified) about the "time to Captain" and it would now be ten (10) years. No date was given from when the ten (10) years would be applied.
On May 6, 2010, ALPA reported that AA management, AE management and ALPA all agreed that the "time to Captain" would not be re-applied to the flow-through pilots as they had already met the "time to Captain" criteria when they were issued an AA seniority number. ALPA stated that Arbitrator Nicolau had once again "clarified" the "time to Captain" to reflect the AA, AE and ALPA position.
ALPA of course tried to pat itself on the back and portrayed the "clarification" as a hard fought battle by ALPA. Nothing could be further from the truth. The "clarification" from Arbitrator Nicolau occurred because flow-through pilots questioned the arbitrator's decision.
If we accept that the award in FLO-0108 is the award of Arbitrator Nicolau and "it does not represent the 'agreement' of any of the four parties" then Arbitrator Nicolau exceeded his jurisdiction and re-wrote Letter 3/Supplement W.
Letter 3/ Supplement W. VI. B categorically limits the jurisdiction of the arbitrator. It states, "The parties agree to arbitrate any grievance alleging a violation of this Supplemental Agreement on an expedited basis directly before a single neutral arbitrator jointly selected by all the parties. The jurisdiction of the neutral shall be limited to disputes involving the interpretation or application of this Supplemental Agreement".
What was the dispute (grievance) in FlO-0108?
Arbitrator Nicolau, in his first Opinion and Award dated October 18, 2009 stated the following.
"However, questions, such as the one at issue here, remain.
That Issue is:
Were American Eagle pilots who hold American Airlines seniority numbers entitled to attend AA training classes beginning in June 2007?"
What was Arbitrator Nicolau's answer to the above "question at issue"?
"As stated in the foregoing Opinion, American Eagle pilots who hold American Airline seniority numbers were entitled to attend AA training classes beginning in June 2007."
He also stated, "In accordance with the instructions of the Parties, the matter is remanded to ALPA, AE, AA, and APA to formulate an appropriate remedy."
The negotiations to formulate an appropriate remedy predictably failed.
After the failed remedy negotiations, the Four (4) Parties were forced to return to Arbitrator Nicolau and ask for a remedy to the undeniable Letter 3/ Supplement W breach wherein 244 American Eagle pilots were denied their contractual right to "attend AA training classes beginning in June 2007"
As we discuss Arbitrator Nicolau's Remedy keep in mind that the arbitrator's jurisdiction is limited to disputes involving the interpretation or application of this Supplemental Agreement.
The Supplemental Agreement is Letter 3/Supplement W.
Now examine the language of Arbitrator Nicolau's "AWARD", beginning on page 18 of his Opinion and Award dated April 9, 2010.
It begins as follows:
"As stated in the foregoing Opinion, American Airlines shall offer to the 286 most senior Eagle CJ Captains holding AA seniority numbers the opportunity to elect to flow-up to American"
The above is an interesting statement as it begs the question. How did the Eagle CJ Captains who hold an AA seniority number receive the AA seniority number if they did not, at some point in the past, elect the opportunity to flow-up to American?
What other reason, other than the election to accept an opportunity to flow-up to AA, caused the Eagle CJ Captains to be assigned an AA seniority number?
Remember that George Nicolau is a doctor of law, an experienced arbitrator and an author, so when I read the above opening sentence of his award, I was surprised. Arbitrator Nicolau instructed American Airlines to offer senior Eagle CJ Captains the opportunity to flow-up to American - an opportunity they already possessed. Is it conceivable that this new opportunity would be different to the opportunity that they were offered when they were originally assigned their AA seniority numbers under Letter 3/ Supplement W III. A and B?
Arbitrator Nicolau instructed American Airlines to do what it had already done in 1998. 1999, 2000 and 2001 - offer "CJ Captains holding AA seniority numbers the opportunity to elect to flow-up to American".
The AEPA firmly maintains that Arbitrator Nicolau's Award is a settlement hastily reached by AA, AE, ALPA and APA but as Arbitrator Nicolau maintains "the Award that follows is my Award" then his award re-writes Letter 3/ Supplement W.
As we discuss the award further, keep in mind that Arbitrator Nicolau's jurisdiction was limited to the interpretation and application of the expired Letter 3/Supplement W.
Continuing to read Arbitrator Nicolau's opening remarks in his "AWARD" you will find the following.
"Said election, which is to be made after said Captains are advised of the remedial components set forth herein, shall be irrevocable, and shall be made no later than May 24, 2010."
The word "irrevocable" cannot be found in the expired Letter 3/Supplement W.
In fact, Arbitrator Nicolau acknowledged, on page 11 of his "award",
that the expired Letter 3/Supplement W did not "require" a CJ Captain to transfer to American.
Where did we first hear the word "irrevocable'?
In the March 2, 2010 letter To All American Eagle Pilots from Captain Tony Gutierrez, American Eagle MEC Chairman. Tony Gutierrez stated, "The MEC ... agreed to place the issue of 'irrevocability' in front of an Arbitrator to ensure an impartial view."
After Arbitrator Nicolau acknowledged "that reading Supp W/Letter 3 as containing an irrevocable obligation is inappropriate and inconsistent with equity"(see page 12 line 9 and 10 of his "award") he then turns around and rules that "Said election, which is to be made after said Captains are advised of the remedial components set forth herein, shall be irrevocable, and shall be made no later than May 24, 2010."
Remember that Arbitrator Nicolau was limited in his jurisdiction to the interpretation and application of the expired Letter 3/ Supplement W. The word "irrevocable" does not appear in Letter 3/Supplement W and the 286 most senior Eagle CJ Captains holding AA seniority numbers had already accepted the opportunity to flow-up to American. Why did he direct American Airlines to offer an irrevocable opportunity to 286 senior Eagle CJ Captains to flow-up to American if he was not re-writing Letter 3/Supplement W. The original expired Letter 3/Supplement W did not require an irrevocable choice and the CJ Captains already possessed the opportunity to flow-up to American.
At the time Arbitrator Nicolau issued his Opinion and Award there were 527 Eagle CJ Captains who possessed the opportunity to flow-up to American.
Of the 527 flow-through pilots, 286 are more senior to the most junior of the 244 TWA LLC pilots placed in the AA new hire training classes beginning in June 2007.
If AA, AE ALPA and APA had not violated Letter 3/Supplement W and American Airlines needed to place 244 new hire pilots in new hire classes to adequately staff AA, then 122 Eagle flow-through pilots and 122 TWA LLC pilots should have been placed into the new hire classes.
Remember the above because the 102 pilots AA furloughed on February 28, 2010 would never have been placed in the AA new hire classes and would still be on the street or working for American Eagle Airlines. AA, AE, ALPA and APA chose to breach Letter 3/Supplement W and place the above 102 TWA LLC pilots in AA new hire classes instead of the more senior Eagle flow-through pilots. We will discuss this later - just keep it in mind.
In continuing to read Arbitrator Nicolau's Award we come across the following statement. "Once elections are made, the opportunity to transfer to American with the remedial components set forth herein shall be offered to the 244 most senior CJ Captains of the 286 who elect this advancement. If less than 244 Eagle CJ Captains so elect, the remedial components set forth will only be offered to that lesser number"
Let me see if I understand the facts correctly. Arbitrator Nicolau determined that because 244 TWA LLC pilots were placed in AA new hire classes beginning in June 2007, in breach of Letter 3/ Supplement W, therefore 244 Eagle CJ Captains should be transferred to AA on a "one for one" basis ( see page 12 of the award). According to the terms, provisions and requirements of Letter 3/ Supplement W that would comply with III. A. The infamous "at least one (1) out of every two (2) new hire positions per new hire class at AA will be offered to CJ Captains" although it violates III. D which states that CJ Captains "will receive priority based on his AA seniority in filling a new position in the next new hire class" at AA
Two hundred and eighty six (286) Eagle CJ Captains were more senior to the most junior TWA LLC new hire pilot so, in terms of Letter 3/ Supplement W III. D the more senior 286 Eagle CJ Captains should have been given priority in filling the new hire classes that were filled by the new hire TWA LLC pilots.
Arbitrator Nicolau, instead of making the more senior 286 Eagle CJ Captains "whole", he continued the breach of Letter 3/ Supplement W.
Even more egregious, in ruling that, "If less than 244 Eagle CJ Captains so elect, the remedial components set forth will only be offered to that lesser number" Arbitrator Nicolau perpetuated the harm to the Eagle flow-through pilots and continued the breach of Letter 3/ Supplement W.
Why the lesser number - there are 527 Eagle CJ Captains who possess the opportunity to flow-up to AA. If only 243 of the 286 Eagle CJ Captains elect to flow-up to American why should one (1) more of the remaining 241 (527 minus 286 = 241) Eagle CJ Captains not be transferred to AA?
Letter 3/ Supplement W requires that "at least one (1) out of every two (2) new hire positions per new hire class at AA will be offered to CJ Captains."
244 TWA LLC new hire pilots = 244 Eagle CJ Captains
Why did Arbitrator Nicolau re-write Letter 3/ Supplement W and nullify the one out of every two?
Even more interesting is the fact that 286 of the 527 Eagle CJ Captains are forced to make an "irrevocable" election. The remaining 241 Eagle CJ Captains are not forced to make an "irrevocable" election.
Why the difference - is it because the 286 Eagle CJ Captains are more senior to the 244 TWA LLC new hire pilots and the remaining 241 Eagle CJ Captains are junior to the TWA LLC pilots?
Where in Letter 3/ Supplement W did Arbitrator Nicolau find the jurisdiction to separate the 527 Eagle CJ Captains into three (3) groups?
1. The thirty five (35) Eagle CJ Captains who will transfer by the end of June.
2. The remainder of the 286, but no more than 209 (35 + 209 = 244), who will be forced to transfer, at some future indeterminable date, because they made an "irrevocable' election.
3. The remaining 241, who will be able to transfer to AA, at some indeterminable date, if they wish, because they did not make an "irrevocable" election.
Assume that 256 of the 286 senior Eagle CJ Captains elect to flow-through to AA. Only 244 will transfer with the "remedial components" which would leave 12 pilots with no remedial components but an "irrevocable" election. When AA new hire positions become available in the indeterminable future it is possible that a new hire AA class will consist of Eagle CJ Captains who were forced to transfer and some who chose to transfer.
Which part of Letter 3/ Supplement W did Arbitrator Nicolau interpret to apply the above remedy?
Furthermore, AE management and ALPA, three (3) months ago maintained that Eagle CJ Captains who accepted the opportunity of a new hire position at AA were "obligated" to transfer to AA when new hire positions became available. Some pilots did not wish to transfer to AA, after waiting for eight (8) to twelve (12) years, and the issue of "irrevocability" was placed before an arbitrator.
What will AE management's position be, in the indeterminable future, when some of the 241 Eagle CJ Captains, who did not make an "irrevocable" election to transfer to AA under this Nicolau Remedy Award, refuse to leave American Eagle?
Arbitrator Nicolau, in "his" AWARD never "remedied" the fact that 244 American Eagle Flow-Through pilots were prohibited from transferring to AA in breach of Letter 3/ Supplement W. Arbitrator Nicolau ruled that AA,AE, ALPA and APA had breached Letter 3/Supplement W but he did not correct the breach.
Thirty Five (35) flow-through pilots will transfer to AA before the end of June 2010. The remaining 209 Arbitrator Nicolau placed back into the same situation they were in before the Four (4) Parties breached the agreement.
Waiting to fill a new hire position in a new hire class at AA.
What did Nicolau solve - nothing. He absolved AA, AE, ALPA and APA for screwing over 209 flow-through pilots by not correcting the contractual breach beginning in June 2007.
The 209 flow-through pilots were waiting to fill a new hire position in the next AA new hire class at AA when the Four (4) Parties decided to place junior TWA LLC pilots in those new hire classes instead.
What did Nicolau do - nothing? He said, "better luck next time boys - hopefully you will not be screwed over again and this time you have an "irrevocable" choice - that should help".
Arbitrator Nicolau is forcing 251 (286 minus 35) flow-through pilots to make an "irrevocable" decision about transferring to AA but at the same time offering the pilots no definitive transfer schedule to AA and furthermore, he did not restore their contractual right which was violated when they were denied the right to transfer to AA.
Instead of making 209 flow-through pilots "whole", Arbitrator Nicolau further harmed them.
We will discuss the Nicolau Award further in Part III.
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Posted on Monday, May 17, 2010
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