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Balancing the Equities
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Many pilots have asked the question, why are only thirty five (35) American Eagle Flow-Through pilots transferring to American Airlines when Arbitrator George Nicolau determined that two hundred and forty four (244) Eagle pilots were illegally denied their contractual right to transfer to American Airlines and withheld, at Eagle, in breach of the American Eagle Pilot Agreement/Letter 3/Supplement W.
Why are only thirty five (35) of two hundred and forty four (244) Eagle pilots transferring to AA?
Where is the explanation from either George Nicolau or the Four (4) Parties?
Are the thirty five (35) the "competing equities" mentioned by George Nicolau on page 15 of his April 9, 2010, Opinion and Award?
Is it because there are thirty eight (38) American Airlines Flow-Backs on the American Eagle Pilot System Seniority List with three (3) of them on leave. That leaves thirty five (35) AA/TWA Flow-Backs with a job at Eagle. There are seven (7) American Airlines/TWA Flow-Backs on Military Leave but "they have a job". If their military tour of duty ended, Eagle would be required to accept them back at Eagle.
Is this the "balance the equities" that ALPA agreed to in this hastily prepared, badly written and ambiguous settlement?
Thirty Five (35) Flow-Backs have a "job" at Eagle, so thirty five (35) Flow-Throughs are allowed to transfer to AA?
Remember George Nicolau made the following mendacious statement: "the Award that follows is my Award".
That is what he said; the same Award he has had to "clarify" six (6) times in less than two (2) months and that is still so badly written that many more "clarifications" will be necessary before a decent workable document emerges.
If you study George Nicolau's Opinion and Award you will notice that the language of his actual "award" stands in contradiction of Letter 3/Supplement W and his own "Discussion and Analysis".
Most arbitrators explain, in the discussion and analysis portion of their Opinions and Awards, how they arrived at the conclusions (opinions) incorporated in their ruling.
There is no explanation of the thirty five (35) in George Nicolau's Opinion and Award.
The statement George Nicolau does make, when he begins to discuss his award, is as follows: 'I turn now to the movement of Eagle CJ captains to American. Here, competing equities come sharply into play."
Competing equities - what a load of bullshit!
Allow the AEPA to paint an analogous scenario for you. A young street beggar steals a loaf of bread from a veteran citizen; an Irish policeman, witnessing the pinching of the loaf of bread, apprehends the beggar. The policeman, to correct the crime (balance the competing equities), gives half of the loaf back to the veteran citizen and allows the beggar to keep the other half.
The police officer balanced the equities - the beggar, through his own choice had no food, so he received half a loaf of bread, the citizen, who paid for the loaf of bread, received the other half. The equities were balanced - both received half a loaf.
The only problem with this balancing of the equities is that the beggar did not pay anything for his half a loaf of bread, and the veteran citizen paid double for his half a loaf of bread.
George Nicolau balanced the equities but never described or discussed those equities.
Review the legal definition of balancing of the equities
A court's weighing of such factors as policy and the convenience or hardship to the parties in order to determine the fairness of granting or denying equitable relief.
Deciding a dispute based on balancing the equities originated in the English Law Courts. English plaintiffs, who were unable to prove their claim, when appearing before the English law judges, by quoting either the law or legal precedent, pleaded with the King for relief.
The King established a Royal Court called the Chancery. A chancellor, who possessed the power to settle disputes and order relief according to his conscience headed this Royal Court (Chancery).
"The decisions of a chancellor were made without regard for the common law, and they became the basis for the law of equity.
Equity and the common law represented opposing values in the English legal system. Common-law courts believed in the strict interpretation of statutes and precedential cases.
Whereas the common law provided results based on years of judicial wisdom, equity produced results based on the whim of the king's chancellor. Common law judges considered equity arbitrary and a royal encroachment on the power of an independent judiciary.
A renowned seventeenth-century English judge called equity "a roguish thing" and noted that results in equity cases might well depend on the size of a chancellor's foot".
When George Nicolau, on page 15 of his Opinion and Award states, "I have taken all of those equities into consideration", what he is really doing is shifting his obligation away from the contractual law (Letter 3), under which every arbitration ruling has been in favor of the Eagle Flow-Through pilots, (including his own initial Opinion and Award), to an arbitrary ruling that disregards the contract and rewards management, who refuses to comply with Letter 3, for breaching the contract.
The contractual terms of Letter 3/Supplement W were "balanced" with management's request for relief to allow the contract to be violated and breached.
A decision based on "balancing of the equities", as shown above, denies the Eagle pilots their contractual rights under Letter 3/Supplement W.
The American Eagle pilot's contract was breached, George Nicolau initially agreed. Two hundred and forty four (244) Eagle pilots were illegally withheld and prohibited by management from exercising their contractual right to transfer to American Airlines, in spite of both Arbitrator LaRocco and Arbitrator Bloch ruling in favor of the Eagle pilots under Letter 3/ Supplement W.
Junior TWA LLC new hire pilots were trained at AA instead of senior American Eagle pilots, in breach of Letter 3/Supplement W, and George Nicolau states that he had to balance the equities.
What harm/hardship/inconvenience did the TWA LLC pilots suffer that required Nicolau to balance the equities?
Nothing, they chose to work for an airline (TWA) with a history of bankruptcy (1992, 1995, 2001).
When AA provided TWA with debtor-in-possession financing of $200 million on January 17, 2001, to allow TWA to continue operating while in bankruptcy, TWA had less than two (2) weeks of operating capital.
The "asset acquisition" of TWA cost AMR Corporation two (2) billion dollars.
What did AMR Corporation get for two (2) billion dollars - the "assets" of a bankrupt airline that have since evaporated.
If AMR Corporation did not finance TWA in January 2001, the TWA pilots would have been on the street in February 2001. Instead, hundreds of them flowed back to American Eagle at eighteen-year Eagle captain pay.
Once again, what harm/hardship/inconvenience did the junior bankrupt TWA LLC pilots suffer when they flowed back to Eagle at eighteen-year captain pay and then transferred to American Airlines as new hire pilots before the more senior American Eagle Flow-Through captains in breach of Letter 3/Supplement W, according to both Arbitrator LaRocco and George Nicolau?
Where is the balancing of the equities?
American Eagle pilots have waited for twelve (12)years to transfer to American Airlines, after agreeing to a sixteen year (16) labor agreement which incorporated a supplemental agreement (Letter 3/Supplement W) that stopped the American Airlines pilots from getting it shoved up their shorts by the Clinton Presidential Emergency Board, but instead of transferring, the American Eagle pilots are required to make an "irrevocable election", after signing a document holding management harmless for all contractual violations and breaches, past, present and future, with no guarantee of ever transferring to AA.
The junior TWA LLC pilots, on the other hand, are rescued from a bankrupt airline, given a job at American Eagle at the highest rate of captain pay, while they wait to be transferred to American Airlines in violation of the American Eagle pilot's sixteen (16) year labor agreement.
George Nicolau says he had to balance the equities. A contract breach versus a hand-out?
Where was ALPA and why was it not objecting to the American Eagle Flow-Through pilots being handed this "nutty" award?
ALPA was busy photo-shopping the cartoon below which mocks the Flow-Through pilots.
If you think ALPA had a tough time cracking this nut, wait until 2013 when the next ALPA photo exhibition shows the squirrel getting the long finger without the nut.
The 824 Eagle pilots waiting for a preferential hiring agreement will be the 2013 squirrels, if ALPA is still the union misrepresenting the Eagle pilots.
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Posted on Monday, June 07, 2010
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