The American view of Arbitrator, George Nicolau

[Phoenix]

I can see this turning into another East vs West on the AA board.

A thread started on the AA boards by a poster that calls himself, of all things, "East Cheats" is by definition an attempt to start an East vs West fight on an American board.

And in the famous words of Foreest Gump, "That's all I've got to say about that."

 

[EastCheats]

He shoots and misses. Save it for the US Airways thread.

Nice try Phoenix.

 

[Phoenix]

He shoots and misses. Save it for the US Airways thread.

Nice try Phoenix.

Settle in and make your self at home were you belong, rather than wandering the streets and interrupting the neighbors. Look at the LCC stock dive today. I don't think you will moving into the neighbor's house any time too soon.

 

[EastCheats]

Trying to compare piloting an aircraft with career expectations?

DOH sounds great if you're on the side getting the windfall from it. Dovetailing as was done in the TW case minimizes the windfall. The Reno guys got a 100% pay raise, which minimized the amount of pissing and moaning. They also still have jobs, which likely wouldn't have been the case had they remained independent. Both TW and QQ would have been collateral damage after 9/11.

With age comes great wisdom and respect.

But it doesn't automatically entitle you to pick of the crop. In an acquisition, the guy who chose to work for Company A should always come ahead of the guy who earned his wings working for a competitor, even if he had no say in that company being acquired or merged.

In a true merger of equals, perhaps DOH is the fairest way, but there have been very few true mergers of equals. I don't consider HP/US a merger of equals -- US was on the verge of extinction. HP was generating cash.

Back to the subject.
An arbitrator's job is not easy.

The recentlyenacted McCaskill-Bond Amendment which explicitly requires U.S. airline mergers to provide forhe integration of seniority lists in a “fair and equitable” manner, for example, was a direct result of dissatisfaction by the two U.S. senators from Missouri (the former headquarters of TWA) over the “stapling” of TWA’s flight attendants to the bottom of American’s seniority list following the TWA-American merger in 2001. 3 In other instances, failure to successfully negotiate a method of seniority integration pre-merger has prevented one firm from acquiring another. ​

Methods of Seniority Integration​

There are several different methods of seniority integration that have been used. The two most​

common, however, are the so called “date-of-hire” and “ratio” methods.​

2.3.1 The Date-of-Hire Method​

De nition 3 Consider merging rms A and B that integrate seniority lists SA and SB with N and​

M employees respectively into a single seniority list SC. Under a date-of-hire seniority integration,​

sCi​

= Γ(yi); ∀i = 1; 2; : : : ;N +M.​

Thus, as the name implies, under date-of-hire seniority integration, employees from merging​

firms retain their accrued longevity from their pre-merger firm, are pooled together, and are reranked​

according to their original date-of-hire. The date-of-hire seniority integration method has​

been frequently relied upon because of its inherent simplicity and because it retains the property​

that for any particular member of SC, every member senior to him on the list has greater length​

of service, i.e., sCi​

< sCj​

&lArr;&rArr; yi &ge; yj ; &forall;i; j.10 Likewise, at least some unions have formally adopted​

date-of-hire as the method of seniority integration that governs their association, should two firms​

it represents merge.11​

10Arbitration decisions adopting date-of-hire (or a slight variation of it) include: Airwest (Gill 1968), North Central-​

Southern (Vass 1980), Republic-Hughes Airwest (Bloch 1981), Northwest-Republic (Roberts 1989), US Air-Piedmont​

(Kagel, 2000), Air New Zealand-National Airways (Feller, 1980), Canadian-Wardair (Munroe 1990) and Queen Charlotte​

Airlines-PacificWestern (Becker, 2000). The variants of date-of-hire often include adjusting date-of-hire to reflect​

the time an employee is on leave from the firm (i.e., length of service).​

11For example, date-of-hire is the defined merger policies of both the Association of Flight Attendants-CWA,​

which represents over 55,000 flight attendants at 21 airlines as well as the International Association of Machinists​

and Aerospace Workers. See https://www.unitedaf...protection.aspx and​

http://www.iamnow.or...egory/seniority.​

Consider the following example of firms A and B with employee groups UA (with 5 workers) and​

UB (with 4 workers) respectively. SA and SB are both organized by date-of-hire, as summarized by​

Table 2.​

Table 2: Pre-Merger Seniority Lists for Firms A and B​

SA SB​

sAi​

Seniority Rank Name Longevity Seniority Rank Name Longevity​

ui yi sBi​

ui yi​

1 u3 15 1 u6 16​

2 u2 12 2 u7 13​

3 u4 10 3 u8 6​

4 u1 8 4 u9 5​

5 u5 7​

Table 3 summarizes the result of firms A and B merging and integrating SA and SB by date-​

of-hire. As demonstrated by Table 3, members of SA and SB are pooled together and re-ranked in​

order of longevity, without consideration given to either the relative size or financial condition of​

their pre-merger firms.​

Table 3: Example of Seniority Integration of SA and SB By Date-of-Hire​

Post-Merger Seniority Rank Name Longevity​

sCi​

= &Gamma;(yi) UA UB yi​

1 u6 16​

2 u3 15​

3 u7 13​

4 u2 12​

5 u​

Refer to the various formulas an arbitrator uses in his or her methodology which includes the ratio method​

http://www.econ.umn....Integration.pdf​

 

[Phoenix]

Back to the subject.
An arbitrator's job is not easy.

...

Brother, AA is in bankruptcy. Have you any idea what happens to employees in bankruptcy?

Folks are going to be losing their jobs. Sons and daughters will be forced out of college. Houses and cars will be sold or worse, repossessed, and there will be untold hardship and stresses on marriages. Many will tragically fail.

I don't think this is the right time to ask the neighbors to embark on a discussion about the difficulties that arbitrators face.

 

[EastCheats]

Brother, AA is in bankruptcy. Have you any idea what happens to employees in bankruptcy?

Folks are going to be losing their jobs. Sons and daughters will be forced out of college. Houses and cars will be sold or worse, repossessed, and there will be untold hardship and stresses on marriages. Many will tragically fail.

I don't think this is the right time to ask the neighbors to embark on a discussion about the difficulties that arbitrators face.

I was furloughed for two years. Been there. The conversation is relevant due to the pending merger, seniority integrtions and possible furloughs as a result. The question also applies since George Nicolau was an arbitrator used by this work group.

 

[wings396]

Not all true, I have been there and back.
Ever hear of financial aide?

 

[EastCheats]

Not all true, I have been there and back.
Ever hear of financial aide?

I'll add planning is important in this industry, as we know with the industry always in a state of flux. Mergers and economic downturns make our line of work exciting to say the least. I went to work in my wife's business and I had friends who took flying jobs all over the globe. Do whatever it takes to keep from losing everything you have.

Back to my thread, I read the various methodologies in this report:

Interpreting The \Fair and Equitable"​

Standard In Labor Force Seniority Integration
http://www.econ.umn....Integration.pdf


After reading the report and looking at the complicated process, I would want someone with experience in that position. I remember from my college physics and mathematics courses using axioms and proofs to draw conclusions. I asked the question if anybody had a problem with George Nicolau as an arbitrator and the decisions he made concerning American Airlines. I did not see the outcry I observed after the Nic decision was handed down to determine the seniority list combining the pilot groups of US Air and America West.

I've concluded that the problem is not with this arbitrator. There is a problem with a group who agrees to abide by a process and then walk away, form a new union and say the new union does not agree to this process.


USAPA founder Stephen Bradford went attorney shopping to figure out a way to get out of binding arbitration. This is a copy of the Bradford Letter which was used as evidence in the Addington trial.

A Conversation with an Attorney​

KEEP THIS INFORMATION CONFIDENTIAL​

On Saturday, June 9th in San Francisco I had a conversation regarding our case with Chris Katzenbach of Katzenbach and Khitikan, a labor law firm.

Katzenbach and Khitikan have done some NMB work primarily with the American Eagle pilots group and they helpd them set up a 501C3 non-profit format to hold the Eagle Pilots independent union which is involved in an organizing campaign to oust ALPA from that property.

In commenting on our case he said that as an outsider he really had to hand it to the opposing counsel in the final brief for the America West Pilots. He understands, in some respects, the issues involving airline seniority. He said however that to an outsider the America West brief was very convincing and easy to follow. This doesn't make it right or more fair, it's just an easier to follow and better presentation to follow than the Katz presentation. The America West brief, appears a least on the surface, to be more in line with the stated new ALPA merger policy. It ignores past president but if you only have the current policy as a point of reference then their argument seems more in tune with it.

Chris Katzenbach feels that a direct assault on this award in the courts is a looser. The courts don't want to be educated on the minutia of this case or any other complicated private matter. The courts only concern is if there is fraud or bribery or some other gross misconduct in the conduct of this arbitration. If pressed they would take a case like that but he feels it to be a looser. It would also probably require a substantial down payment up front to pursue. By the way their fees are very reasonable, $275.00 per billable hour.

I next specifically asked him about the formation of a new bargaining agent as an avenue of advance to get around this award. He says that it is entirely possible. The key the courts look for is not the private squabbles, procedures and methodologies between unions and their nationals, the facts of the collective bargaining agreement. The CBA is the defining argument in a case to the courts. The Railway Labor Act /National Mediation Board procedure and policy above all governs.

"Could the America West pilots sue us" I asked, "if we pursue this course of action." "Yes", he said however Duty of Fair representation suits are losers, Katzenbach and Khitikan sued ALPA for the American Eagle Pilots over their current contract which among other things had a 20 year no strike clause. The contract was a negotiating committee cram down to keep from having the Eagle flying farmed out and allowing for the American equivalent version of "jets for jobs" and "flow through." Does this sound familiar?? As a result of this contract the Eagle pilots are trying to get out of ALPA.

Chris said the contract was truly piece of "%$#*" but because it was negotiated by the duly elected negotiating committee it would stand in court. They lost big-time and that's that. So to answer the question, yes you can be sued but they must prove fraud or other really gross violations of law to have the suit stand up. However, he cautioned, the language you use in setting up your new union and how you go about talking and writing about your solutions to this award can be used against you. You need to stress he positives of the new union and not dwell on the award. Don't give the other side a large body of evidence that the sole reason for the new union is to abrogate an arbitration, the Nicolau award, that in the opinions of most judges, should be allowed to stand due to no gross negligence or fraud.

In a ruling by the NLRB, not the NMB, in 1954, stated: Seniority status in mergers must be resolved between the the employer and the union not by the union unilaterally. 107 NLRB 837;225F.2nd.343. That is to say seniority lives in the collective bargaining agreement not inside the unions. It will cost some more money to find if there is an equivalent ruling in a case by the NMB, but Chris feels there most certainly is.

A study and roadmap of the case law based on the premise that a new bargaining agent can get around the award and make the Nicolau award moot will cost 5 to 7 billable hours, so about $1925 with this firm.

When I stated that our Chairman Doug Parker had expressed an interest in industry consolidation he replied "well you know this process can work in reverse". That is, if we had a merger with United then even before there was an arbitration process the United pilots would petition the NMB for "single carrier status" and we could find ourselves back in the same position as we are now, inside ALPA. The Nicolau award won't die until ALPA dies. If there are mergers down the road then the award can come back if ALPA does. Seniority lives in the CBA so you need a new contract to go with the new union to solidify your claims. Can something be put in the contact to protect these claims, I asked. "That question will require a lot of research". Katzenbach and Khitikan seem to be competent in this area although they are not experts in Railway Labor Act /
NMB law. Chris stated that there are very few firms who specialize in RLA/NMB law, it's a very small portion of labor law pie.

This consultation is not free, they don't do that with this kind of case, but they have low rates ie, $275/hr. My name is the one given so I will pony up on this meeting and the firm will supply a resume of their qualifications to do this kind of law and a recap and their opinions on what was discussed and I will forward that information when I get it so that all can see what type of law firm this is and if we want to do business with them in the future.

Respectfully Submitted,

an aaapilots4fairness committee member


This is where we stand today...A court will decide:

"The Transition Agreement signed by the three parties specified that ALPA Merger Policy would be used to combine the seniority lists and US Airways management agreed to accept the list as long as certain cost requirements were met. Doug Parker officially accepted the seniority list from ALPA First Vice-President Paul Rice during December 2007. Since that time, the East pilots, first as represented by ALPA and later USAPA, have tried to circumvent the seniority provisions of the TA claiming that the new union is not bound by the former bargaining agents agreements. This issue is under dispute and currently under the jurisdiction of Judge Roslyn Silver of the Arizona District Court."

Final thought:
My friend "Phoenix" pointed out my screen name of Eastcheats to question my motives. Yes, I feel cheated by a group who used it's majority to disenfranchise me and the pilots of the former America West. It all started with the forming of USAPA, the filing of RICO charges against our pilots and continues today with the overturned election and rerun which cost two West reps their positions on the appeals board. I conclude that the problem is not with the arbitrator or ALPA but rather the pilots who use the tryranny of the majority who may find themselves in the minority after a merger. It's called Karma and it might just bite you on the a$$ one day. May I add the screen name "Phoenix" does not represent the views of West pilots as the name would suggest.