Gee, I guess its not too late!
"On the heels of very disappointing news, earlier today, we are pleased to report that the Arbitrator has awarded for the Union in Transition Dispute #10, Minimum Block Hours."
Grievance Committee Update #2
Arbitrator Rules for USAPA in TA #10
October 16, 2009
On the heels of very disappointing news, earlier today, we are pleased to report that the Arbitrator has awarded for the Union in Transition Dispute #10, Minimum Block Hours.
This dispute was filed due to the Companyâ€™s failure to maintain a minimum monthly block hour average of 8.79 hours per day on the East and 9.87 hours per day on the West. At the time the dispute was filed and heard, the Company had failed to maintain the per day block hour average on the West for the months of September â€“ December 2008.
The Companyâ€™s argument at arbitration was that they agreed with the 8.79 and 9.87 hour threshold. And, furthermore they agreed that they must perform the calculation each month. However, they believed that each month is a rolling average based on the previous twelve months. By this calculation, the Company believed they were in compliance with the Transition Agreement.
The Unionâ€™s position was that the daily utilization rate must be calculated each month, based on the average daily hours per day that the respective East and West aircraft had been flown during that particular month. To the extent the rate, calculated in that manner, dips below 8.79 hours for East and 9.87 hours for West, in any given month, the Company is in violation of the TA.
It is abundantly clear that the Arbitrator based his decision almost exclusively on the negotiating history of the underlying US Airways East CBA, from which the language and the concepts of minimum block hours were derived. During the hearing phase, this negotiating history was relayed by Captain Donn Butkovic for USAPA. He testified as to the concept of monthly minimum block hours and its inclusion in the July 2002 Restructuring Agreement. The same concept was then repeated six months later in LOA 84. Again in LOA93, we see the same concept of minimum block hours 12 months after the emergence from bankruptcy.
Mr. Bruce Ashby, testifying on behalf of the Company stated that they had intended to change the method of how the monthly measurement would be calculated, from a monthly minimum to a 12 month rolling average.
The arbitrator rejected the Companyâ€™s argument stating in the decision;
â€œThe problem for a reader, however, is that the words donâ€™t convey the critical message that the parties jointly intended to effect a massive change to the previously accepted meaning of â€œmeasured monthlyâ€. There is, simply stated, no language in either LOA #93 or in the subsequent TA that in any way suggests a twelve month rolling review for purposes of monthly measurement.â€
â€œConceding there is no direct definition of the phrase â€œmeasured monthlyâ€, the Company maintains the new concept was, nevertheless, expressly aired and discussed with the union chief negotiators. But the evidence falls far short of demonstrating communication of a nature that would allow one to infer such a change to language that is totally silent on the subject. Mr. Ashby candidly concedes the parties were, in September of 2004, in a â€œburning hurryâ€ to get a deal done, that he and his committee drafted the language at issue after explaining the concept to ALPA.â€
The Arbitrator further provides the following analysis for his decision:
â€œThe rolling twelve month review, however reasonable and responsive to the challenges confronting the Company, was, to these parties, a novel and arcane concept. If the previously understood and relatively straightforward meaning of â€œmeasured monthlyâ€ were to be modified in this fashion, it was incumbent on the bargaining parties to make the change in considerably more explicit detail. In the absence of any such language, USAPAâ€™s claim that â€œmeasured monthlyâ€ meant the same, in LOA #93 and in the TA, as it had always meant to the bargaining parties is forceful and ultimately controlling. For these reasons, the grievance will be granted.â€
We are in the process of collecting the required signatures from the members of the System Board of Adjustment. Once that process is complete, which may take a week; we will post the decision on the USAPA web site.
Lastly, the Arbitrator remanded the remedy to the parties for consideration. However, the System Board of Adjustment will maintain jurisdiction in the event of a dispute arising on the question of remedy. Our Board members; John Brookman and Mitch Vasin have already begun crafting a â€œmake wholeâ€ remedy for all affected pilots. We will update the pilot group next week as to our progress.
Tracy L. Parrella
USAPA Grievance Chairman
USAPA Grievance Vice-Chairman
USAPA System Board Member TA #10
USAPA System Board Member TA # 10