Fins,~~~^~~~ said:
Your point about the weight limit is well made. The weight restriction applicaple to the 57 seventy seat aircraft approved for operation by DCI carriers is 85,000 lbs. As I'm sure you know the EMB170(ER) has a max TO weight of 82,012 lbs. It could therefore be operated as one of the 57.
The weight limit for the other "permitted" jets is 65,000 lbs, which it obviously exceeds by a wide margin.
Since those aircraft operated for "other carriers" are exempt from Section 1 C. of the Delta PWA, provided they are "configured" with 70-seats or less, and no weight limit is mentioned in Section 1 D. 2., it appears that the EMB 170 is OK. This however is subject to interpretation.
It could be argued that since the operation (of the EMB-170) is predicated on its being a "permitted aircraft type" in the first instance, and since only 57 permitted types with 70-seats and GTOW of 85K are authorized, the limitation of 65K should apply, not withstanding the 70-seat configuration in 1.D.2.c..
This could result in the Company interpreting it to allow operation of the EMB-170 for carriers other than Delta, and the Delta pilots interpreting it to mean that the 85,000 lb. limit applies only to the 57 seventy seat aircraft operated by DCI and therefore it violates the contract. There is definitely a potential conflict between Section 1 B and Section 1 D.2. of the Delta PWA.
As long as the Delta pilots don't protest CHQ or REP operating this EMB-170 for United, everything will be OK. If they do, the Company would likely disagree and we would wind up with a grievance and arbitration. Given the contract language, this is a gray area. It would be interesting to see how an arbitrator might rule.
If the Company were to lose the arbitration, Chatauqua would be prevented from operating the EMB-170 for United or anyone else. That would then raise the issue of whether Republic, operating under a different Operating Certificate (which it does not yet have), and not being a DCI carrier could bypass the Scope language of the Delta PWA.
The Delta PWA appears to be silent (unless I missed it) on the issue of Operating Certificates and I think the Company would have a strong arguement in its favor. Again, except for Mesa, this is untested.
A similar provision in the USAirways CBA attempted to prevent Mesa from operating the CRJ-900 for AWA. That resulted in Mesa creating Freedom as a non-union subsidiary designed to bypass the AAA Scope clause, which ALPA was not successful in preventing. The net result of that ALPA created debacle was the infamous Mesa CBA, which set a new standard for inferior contracts and negatively affected many other negotiations. Republic was created with apparently the same intent, and it too ultimately forced the CHQ pilots to accept a lesser contract to protect their seniority and preclude the inevitable alter ego whipsaw. It also forced them to reverse their anti-J4J vote and accept ALPA's abrogation of their seniority by USAirways pilots.
It is my opinion that ALPA knows there's a flaw in the Delta PWA scope clause that could result in ALPA's being defeated if this was to be challenged by the Delta pilots and go to arbitration. Therefore they have not raised a challenge at SKYW and they will not raise one at CHQ/REP. It appears that the Delta pilots have figured out that when you're up to you chin in horse sh*t, you shouldn't make waves.
When this language was written I doubt the ALPA lawyers were aware of the coming Embraer product and the Delta pilots were so focused on stopping the Canadair 70-seater at CMR and ASA that they didn't catch it either. [Remember that back then UAL wasn't bankrupt and the United pilots were also married to restrictive Scope clauses that would not have allowed 70-seat jets at a UALX carrier; probably seen as an impregnable shield of protection.] I'm sure they would deny that if asked, but it is nevertheless one more leak in the Scope dike that permits Company lawyers to drive semi-trucks through the holes. More proof that misdirected predatory Scope doesn't work and doesn't solve the problems.
Here's the language from the Delta PWA, Section 1 B.
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