Significant Comair News

[Gator1999]

Mesaba and Mesa as potential / probable DCI additions

That's a new one...I'm sure it'll get a few laughs in the crew rooms at Mesaba.

 

[FDJ2]

Aside from the fact you contradict yourself in the same paragraph....


You have written that ACA can not perform DL codeshare flying if they operate a non permitted aircraft type (IE more than 70 seats). If ACA operated a 737 the DMEC would file a grievance to stop that flight, or cancel the codeshare. In fact, this contract language has provided a way for ACA to dump their DOJets on Delta when they decide to operate larger aircraft.

Skywest serves as a better example than does ACA because ACA does not seem to care whether they keep the DL code, or the Dorniers. Skywest can not operate CRJ900's or narrow bodies under the UA code due to an agreement between Delta and their pilots. Somebody somewhere is going without UA service due to DL's restriction and you can bet your last dime taking competitors like UA out of cities served by DL is anti-competitive.

In fact, to illustrate this by using the rediculous - if the "permitted aircraft types" language prejudicial to "Connection" pilots were removed from the DAL contract you would find that Continental, Northwest, and American Eagle would have to cease operations to be in compliance with your scope. But of course you would not see anything anti-competitive in that, would you?

~~~^~~~

I didn't contradict myself at all. The DAL PWA puts restrictions on DAL. DAL can only put DL code flying on other carriers if it meets with the restrictions laid out in the DAL PWA. DAL may not put DL code passengers on ACA aircraft if ACA flies other than permitted aircraft. If ACA chooses to fly other than permitted aircraft, that's o.k., but they do it knowing that they can no longer fly DL code. The same goes for Skywest. That is not anti-competitive, not even your twisted example . UA is free to fly all the CRJ900s they want, they can probably even do it with Skywest. The choice is up to Skywest, whether or not they choose to forfeight the DL code flying.

 

[Russ]

There have been many laws passed at city, county, state and federal government levels that have sat on the books until challenged in court and found illegal. I don't know if the portion of the contract that limits third party buisness dealings (90 seater at a DCI carrier for another airline) would pass the sniff test in court. I have a feeling we will find out in the next few years. Yeah, I know how the language of the contract reads, but it is semantics to say it doesn't descriminate against a regional who serves more than one major partner. There hasn't been any need to challenge it to date, but as some regional carriers start to acquire larger aircraft for X and see opportunities lost at Y they will consider finding out if it will stand. There are risks to hitching your wagon to one major partner, as regionals try to spread the risk around they may find themselves impeded by this portion of the PWA and challenge it.
Just because your lawyers say its legal doesn't mean the lawyers at the other table won't find a way to prove you wrong.

This is about the best I can do to bring the Gen out of what ever hole he is in.

 

[FDJ2]

There have been many laws passed at city, county, state and federal government levels that have sat on the books until challenged in court and found illegal. I don't know if the portion of the contract that limits third party buisness dealings (90 seater at a DCI carrier for another airline) would pass the sniff test in court. I have a feeling we will find out in the next few years. Yeah, I know how the language of the contract reads, but it is semantics to say it doesn't descriminate against a regional who serves more than one major partner. There hasn't been any need to challenge it to date, but as some regional carriers start to acquire larger aircraft for X and see opportunities lost at Y they will consider finding out if it will stand. There are risks to hitching your wagon to one major partner, as regionals try to spread the risk around they may find themselves impeded by this portion of the PWA and challenge it.
Just because your lawyers say its legal doesn't mean the lawyers at the other table won't find a way to prove you wrong.

This is about the best I can do to bring the Gen out of what ever hole he is in.

Contracts are about obligations and limitations. When the CMR pilots sign a contract requiring that all CMR aircraft be flown by CMR pilots, that puts a limitation on UA using a MESA pilot to fly a CMR aircraft in DEN. Is that anti competitive? Of course not. Yet it does put a limitation on a third and fourth party. Likewise, when DAL signs a contract with the DAL pilots not to put DL code on domestic carriers with over 90 seats (NWA/CAL exempted), DAL must conduct its busness accordingly.

 

[jarhead]

I am curious.....

Much has been said about the restrictions on DCI to have no more than 57 CRJ-700 in the DCI portfolio. As I understand it, those 57 airframes can be shuffled about between ASA, CMR, SKW, ACA, or Chit, in any combination that management chooses. CMR could have say, 8 seventy seaters one day, and have 25 or 30 the next day, just so the aggregate does not exceed a total of 57 at all DCI carriers.

Now, also I have read in these forums, that one way to test the "legality" of this 57 limit, would be to intentionally violate it, and see where a court challenge would lead to.

With those statements in mind, here is my question. How in the world would the Delta Pilots, or their MEC, ever even know whether or not there were more than 57 70 seaters spread around the regional carriers of DCI? Who is counting? How would any pilot ever know if more than 57 were in the combined stable? It seems to me that the 57 limit could be violated, and a challenge in court never come up, as knowledge of the excess airframes would never be known, unless management chose to disclose that information. Maybe I am over simplifying this, and perhaps the DMEC has people in an audit capacity reviewing the collective DCI books on aircraft in the stable. Can anyone enlighten me about this point?

 

[marqmarq]

70 seaters

As it was explained to me, the limit on 70 seaters comes from the mainline Delta pilots scope clause. That scope clause apparently no longer applies (9/11 stuff I think) and DCI can buy and assign an unlimited number of 70 seaters to its vendors.

 

[jarhead]

No, I believe the 57 seventy seaters is now, and always has been, a hard number. In any event, back to the original question. How would the DMEC ever know how many the DCI carriers were operating.

 

[FDJ2]

No, I believe the 57 seventy seaters is now, and always has been, a hard number. In any event, back to the original question. How would the DMEC ever know how many the DCI carriers were operating.

You're right about the hard number of outsourced 70 seaters. The 57 number, which can go up to 75 depending on mainline growth, is not subject to the force majuere clause in the DAL PWA which authorized the furloughs and resets. Even those furloughs have been halted by the FM clause and all block hours reset.

On your second point, and this is only a guess, each aircraft has a tail number which is easy to track. If DAL were to use more than 57 RJ70s, it wouldn't take long for that to come out.

As far as DAL intentionally violating a contract they signed, that would certainly leave DAL subject to significant damage awards and actions. That's like saying an employer can intentionally decide not to pay you your contractual pay, your insurance premiums, or provide you with a hotel room on layovers. There is no wiggle room on this item. It's in black and white and DAL is obligated to comply with the terms of its contract with the DAL pilots. Besides, there is no indication that DAL even wants more than 57 RJ70s or anymore RJs after 2004.

 

[surplus1]

This is another common misunderstanding. The Delta PWA does not limit RJs, the size of RJs that the Company can fly, the routes, stage lengths or block hours of RJs. The Delta PWA only limits how much of that flying can be outsourced to non DAL pilots. If Delta needs more RJs they can fly them with DAL pilots. There is no artificial limits on the RJ anymore than there are on the 737.

It is true that the Delta PWA does NOT prevent DAL from operating any number of RJs if they are operated by DAL, in which case they would of course be flown by Delta pilots. There is no misunderstanding on my part and I never said otherwise. However, that is irrelevant to the debate. We are not taking about what DAL itself may do. We are discussing what may be done by Delta's subsidiaries and subcontractors.

The question of whether the operations of ASA and CMR subsidiaries is "outsourced" or not, is a separate issue and I won't deal with that in this post.

It is also true that the Delta PWA limits the number of certain RJs that may be operated a) by Delta owned subsidiaries, and b) by Delta sub-contractors. (The 70 or 90-seat versions)

It is further true that the Delta PWA attempts to limit the number of 50-seat RJs that may be operated by a) Delta owned subsidiaries, and b) Delta subcontractors, by imposing ratios to DAL mainline flying.

The Delta PWA also imposes a miriad of other restrictions on the operation of ALL RJs operated by, a) Delta owned subsidiaries, and b) Delta subcontractors.

The Delta PWA further attempts to preclude the operation of certain aircraft types at airlines not owned or controlled by Delta, even if those aircraft do NOT use the "DL" code, by demanding cancellation of legitimate contracts between those airlines and Delta, signed prior to the current Delta PWA. Some might say that this proviso of the Delta PWA borders on violation of the Federal restraint-of-trade law. It will be interesting to see what happens to this PWA when someone decides to challenge that in the Federal courts.

It is obvious that in the opinion of the ALPA lawyers crafting Scope clauses that the sundry restrictions are valid and legally enforceable against Delta, presumably by ALPA. Since Delta did sign on to the contract, it is reasonable (on the part of ALPA lawyers) to presume that Delta itself will not challenge these provisions of the contract. It is also reasonable for ALPA lawyers to presume that these provisions will not be challenged by Delta subsidiaries, since these subsidiaries are controlled by Delta. However, should Delta decide to permit its subsidiaries to make such a challenge, I doubt they would be legally precluded from doing so. It is not practical because a subsidiary is not likely to sue its parent, but is it legally possible? Ask your lawyer. I am not an attorney.

When ALPA lawyers presume that other companies (not owned or controlled by DAL) or other independent parties will not challenge these provisions, they stretch their legal imagination and have already been proven wrong.

For instance, I think it is reasonable to presume that ALPA lawyers never anticipated that ALPA members, adversely affected by the restrictions, might challenge ALPA's right to impose them against their own membership, whose interests they are legally bound to represent. Obviously they did not "anticipate" correctly, and ALPA is now facing that legal challenge.

As Russ pointed out, it is possible that carriers like SKYW or ACA might choose to challenge the provision that attempts to preclude them from operating RJs with say 71 + seats, on behalf of UAL, themselves, or some other carrier, or the provision that attempts to force the cancellation of valid contracts with Delta itself, if they do so. Russ is right. Many illegal contracts stand merely because they have never been tested in a court of law. Don't be too smug in thinking that it can't happen.

ALPA lawyers recognized this possibility, and included a provision in the Delta PWA that requires a subcontracting carrier to accept those provisions of the Delta PWA, as a condition of thier sub-contract with Delta. That proviso would not be there if those lawyers didn't know that without it, the contract cannot stand.

However, many of these "provisions" of the Delta PWA, were changed/added after the subcontracting agreements were signed between Delta and the respective airlines. Does anyone really know if the contracts between the subcontractors and Delta were subsequently updated to include acceptance of the new conditions? I respectfully submit that no one writing in this thread has that information.

I know for a fact that when Comair was an independent airline (before its acquisition by Delta), it signed a code-share agreement with Delta in 1989 (with a 10-year duration). At the time, there were no limitations in the Delta PWA regarding the number of RJs that could be operated, nor their size. The RJ did not even exist. There was also no provision requiring Comair to recognize any provision of the Delta PWA. The first such restriction was added to the Delta PWA in 1996. Seven years after Comair signed the code-share agreement and three years after Comair launched the first US RJ operation.

I also know, for a fact, that the provision of the Delta PWA that attempts to preclude the operation of larger aircraft by subcontractors, for third parties or themselves and not using the DL code, was not added to the Delta PWA until "C2K" (2001). Wasn't the code share contract with SKYW signed prior to that date?

I know for a fact, that prior to its acquisition, Comair did not enter into or sign any agreement with Delta that recognized any provision of the Delta PWA. Therefore, the limitations imposed by the 1996 Delta PWA were never legally binding on Comair.

Since Comair had not chosen to operate aircraft larger than 70-seat RJs in its code-share with Delta there were no problems and the issue was moot. However, Comair did place a firm order for 20 CRJ-700s, with options for 70 additional CRJ-700s, prior to its acquisition by Delta and before the current Delta PWA was signed.

Additionally, Comair was free to operate any number of aircraft, of any size, under its own code (OH) or as a subcontractor for any airline other than Delta.

There was nothing in the Delta PWA that would have prevented Comair from operating 100 (pick a number) CRJ-700s under the DL code, or 50 B717 under its own code, plus 200 CRJ-200/700/900 for anyone else. Further, the Delta PWA of 1996 (which first established the 70-seat limit) did not limit the number of airframes and did not apply. It was signed 7 years after CMR's contract with DAL and CMR never agreed to abide by it. Do not overlook that Comair singed a contract to acquire Spirit but changed its mind after the ValueJet crash. I can assure you that it wasn't the Delta PWA that prevented that purchase by Comair.

I know that the Delta pilots don't believe any of that. I invite any one of you to present credible evidence to the contrary. Until you do, I will stand by those statements.

Also, just to clarify an earlier comment, both ASA and CMR are bound by the DAL PWA, since both companies signed irrevocable agreements to be bound by the DAL PWA as a condition of their acquisition.

I have to ask -- 1)are you certain that such "irrevocable agreements" in fact exist? 2) How could they have been a "condition of the acquisition" when the relevant provisions of your current PWA did not even exist at the time that CMR was acquired (and ASA was acquired before CMR)? Given that the conditions of your current PWA did not exist for more than a year after the acquisition of Comair, I guess Delta new that it was going to agree to those things in your PWA well in advance of its decision to purchase Comair. Interesting.

If you are certain perhaps you can tell us how you gained access to documents between ASA, CMR and DAL that include those alleged "agreements". Is that public information? If so, where can I find it?

I am not saying it is not true, but that is a critical statement and I would like you to substantiate it by providing the source of the information, if you can. If you are precluded by a"confidentiality agreement" just tell me and I will stop asking and find other sources.

 

[surplus1]

That is incorrect and a common misunderstanding. Look at the first page of the contract.

Agreement between Delta Air Lines, Inc. and The Air Line Pilots in the service of Delta Air Lines, Inc.

ALPA is listed as a representative, but not a party to the contract. Much like a lawyer in any negotiation, they can represent you, you can give them power of attorney, but at the end of the day they are not the party to the agreement, you are.

I disagree. You are correct about what you see on the cover page of your contract but that does not determine the parties to the contract.

The bargaining agent is the ALPA. No contract is valid without the signature of the ALPA President.

There is a "common misunderstanding" but it is on the part of many mainline pilots. MEC's are not it fact autonomous although ALPA likes to spin the idea that they are. An MEC is only an internal unit of ALPA. It is not a legal entity. ALPA has established its authority over MEC's in the courts.

This is not a matter of my opinion vs your opinion, it is a legal fact. Ask your attorney.

That is why MEC's don't get sued and can't sue. ALPA files the grievances, ALPA requests the arbitrations, ALPA goes to court and sues or is sued as the case may be. The only legal entity is ALPA and your contract (and mine) is between ALPA and the respective airline.

 

[FDJ2]

I have to ask -- 1)are you certain that such "irrevocable agreements" in fact exist? 2) How could they have been a "condition of the acquisition" when the relevant provisions of your current PWA did not even exist at the time that CMR was acquired (and ASA was acquired before CMR)? Given that the conditions of your current PWA did not exist for more than a year after the acquisition of Comair, I guess Delta new that it was going to agree to those things in your PWA well in advance of its decision to purchase Comair. Interesting.

You are mistaken.

Section 1 F.1 of the 1996 DAL PWA.

"This agreement shall be binding upon any Affiliate. The Company shall not conclude any agreement or arrangement that establishes an affiliate unless such Affiliate agrees in writing as an irrevocable condition of such agreement or arrangement to be bound by this agreement"

As you can see, your declaration of fact is incorrect.

Since you know for a "fact" that CMR never signed such an agreement, than the CMR purchase would violate a previous contract and would be illegal. You ought to get a lawyer and demand that the acquisition be revisited. That is of course if what you say is a fact.

What CMR could or could not do prior to your acquisition is irrelevant, since your management team agreed to be purchased as a wholly owned subsidiary. What your career aspirations were prior to your acquisition, as a pilot of a independent contractor, are also irrelevant since you had no successorship language protecting those interests.

DALs contract with ACA has a termination clause that can be executed by either party once adequate notification is given. I'm sure the same exists for all other sub contractors. At any rate, the restriction is on DAL, not ACA/Skywest. They are free to do as they please. DAL is not.

 

[FDJ2]

I disagree. You are correct about what you see on the cover page of your contract but that does not determine the parties to the contract.

The bargaining agent is the ALPA. No contract is valid without the signature of the ALPA President.

Agency Law 101. It is irrelevant, to our discussion, that the ALPA President's signature is on the contract. You are correct, that ALPA is the agent, but incorrect that ALPA is the party to the contract. The logistics of getting over 10,000 pilots into Leo Mullin's office to negotiate and sign a contract every 4-5 years would be impractical. For that reason the pilots in the service of Delta Air Lines authorized an "agent" to act in "their behalf."

Black's Legal Dictionary:

"Agent. A person(ALPA )authorized by another(Delta pilots) to act for or in place of him; one instructed with anothers business. One who represents and acts for another under the contract of agency."

Section 1 Scope

A. Recognition

"1. The Air Line Pilots Association, International, has furnished the Company proof that a majority of the pilots employed by the Company have designated the Association to represent them, and in their behalf negotiate and conclude a PWA with the Company"


Also, the phrase "Agreement between Delta Air Lines, Inc. and The Air Line Pilots in the Service of Delta Air Lines, Inc. as Represented by The Air Line Pilots Association" is not just the cover page of the PWA, it lists the parties and their representatives.

As you can see ALPA acts as an "Agent" not as the party it has negotiated in "behalf of." The DAL PWA is an agreement between DAL and DAL pilots. ALPA acted as the "agent."

 

[~~~^~~~]

FDJ2 and Russ :

The Sherman Anti Trust Act has been tried in Courts, bunches of times, it has been here since 1890 and has its own branch of government. Fortunately, for Delta and ALPA, there is a clearance agreement that places enforcement of airline matters in the DOJ's "scope." If the FTC ever gets a hold of the airline it would be a completely different story as to the enforcement of the law - in fact a lot of codeshare and sharing of pricing information (Orbitz) would be challenged.

Of course a private individual can challenge the Delta PWA any time they feel like it. Here is the opening section of the Sherman Act:

§ 1 Sherman Act, 15 U.S.C. § 1

Trusts, etc., in restraint of trade illegal; penalty

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.

§ 2 Sherman Act, 15 U.S.C. § 2

Monopolizing trade a felony; penalty

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.

I guess if you think it is OK for Microsoft to enter into vendor agreements stipulating that you can not sell competitor's operating systems if you sell Microsoft's then you have no problem with a restraint on Skywest stipulating that they cannot fly CRJ900's under their own code while still doing business with Delta. The DOJ had a problem with those sorts of business practices. Fortunately for Microsoft they had a spare $1,000,000,000.00 plus they agreed to cease and desist. Read until your eyes buldge out of your head like a stomped on bullfrog...

http://www.usdoj.gov/atr/cases/ms_index.htm

 

[surplus1]

Your reply came in two messages. I'll try to respond to both in this single message.

Originally posted by FDJ2
You are mistaken.

Section 1 F.1 of the 1996 DAL PWA.

"This agreement shall be binding upon any Affiliate. The Company shall not conclude any agreement or arrangement that establishes an affiliate unless such Affiliate agrees in writing as an irrevocable condition of such agreement or arrangement to be bound by this agreement"

As you can see, your declaration of fact is incorrect.

Since you know for a "fact" that CMR never signed such an agreement, than the CMR purchase would violate a previous contract and would be illegal. You ought to get a lawyer and demand that the acquisition be revisited. That is of course if what you say is a fact.

Very good, I appreciate your efforts at research. Now let's try to be completely accurate. I said that I knew for a fact that CMR did not sign such an agreement prior to its acquisition. I asked if you were certain that CMR had signed such and agreement after its acquisition. You did not answer the question, but you provided a quote from your 1996 PWA. What follows is the complete paragraph from your 2001 PWA. Please compare them and note the differences.

G. Affiliates and Successors
1. This PWA will be binding upon any affiliate. The Company will not conclude any agreement or arrangement that establishes an affiliate unless such affiliate agrees in writing as an irrevocable condition of such agreement or arrangement to be bound by this PWA and if the affiliate is an air carrier or parent or subsidiary of an air carrier, to operate as part of a single carrier with the Company in accordance with the terms of this PWA, unless the affiliate operates only permitted aircraft types. [Emphasis supplied]

It would appear that the provision you quoted does not apply to carriers like Comair. I repeat the question: Are you certain that Comair signed such and agreement after or during its acquisition? Or do you just believe that it should have. Since your current contract exempts affiliates operating only "permitted aircraft types" (which is what CMR does) do you still believe that CMR is bound by your PWA?

What CMR could or could not do prior to your acquisition is irrelevant, since your management team agreed to be purchased as a wholly owned subsidiary.

Since you argue that what Comair could or could not do (did or did not do) prior to its acquisition is irrelevant, why do you quote a contractual provision written prior to the acquisition? Does it not follow that would be "irrelevant" also if your premise is accurate?

What your career aspirations were prior to your acquisition, as a pilot of a independent contractor, are also irrelevant since you had no successorship language protecting those interests.

We did have successorship language that required the "Successor" to accept the terms of the Comair PWA. Those terms specified in Section 1 who would conduct Comair's flying. They were renewed and somewhat improved in the Comair PWA signed after the acquisition in 2001. Our career expectations therefore did not "evaporate" with the acquisition, as you seem determined to infer. They in fact remained in place and were actually improved.

DALs contract with ACA has a termination clause that can be executed by either party once adequate notification is given. I'm sure the same exists for all other sub contractors. At any rate, the restriction is on DAL, not ACA/Skywest. They are free to do as they please. DAL is not.

I agree that the restriction is on DAL, and not on ACA or SKYW. That is precisely what opens the door to a legal challenge. Should Delta choose, in compliance with its agreement with ALPA, to cancel the SKYW contract it will need to come up with some "cause" other than your PWA. Such a cancellation (absent a provision in the codeshare contract signed by SKYW) would cause significant damage to Skywest if Skywest has not breached the contract. Litigation would almost certainly follow and likely endure for years. Given the "irreparable" nature of the damage that SKYW would suffer, it is highly probable that Delta would be enjoined from acting until the case was settled. Such and injunction would effectively render moot your PWA.

I don't pretend to know what the eventual outcome might be, but if you truly believe that your PWA is so sacrosanct that Delta will risk much or engage in extensive litigation to defend it, I think you are sorely mistaken. The minute SKYW sues they'll tell you its out of their control. You will then have to "grieve it" and hope that an arbitrator will uphold your viewpoint. Given ALPA's recent record of success in arbitration of this nature, and in the courts, if I were you I would not be tooting my horn quite so loudly.

Re. Your Second Message

Agency Law 101. It is irrelevant, to our discussion, that the ALPA President's signature is on the contract. You are correct, that ALPA is the agent, but incorrect that ALPA is the party to the contract. The logistics of getting over 10,000 pilots into Leo Mullin's office to negotiate and sign a contract every 4-5 years would be impractical. For that reason the pilots in the service of Delta Air Lines authorized an "agent" to act in "their behalf."

Black's Legal Dictionary:

"Agent. A person(ALPA )authorized by another(Delta pilots) to act for or in place of him; one instructed with anothers business. One who represents and acts for another under the contract of agency."

Section 1 Scope

A. Recognition

"1. The Air Line Pilots Association, International, has furnished the Company proof that a majority of the pilots employed by the Company have designated the Association to represent them, and in their behalf negotiate and conclude a PWA with the Company"

Also, the phrase "Agreement between Delta Air Lines, Inc. and The Air Line Pilots in the Service of Delta Air Lines, Inc. as Represented by The Air Line Pilots Association" is not just the cover page of the PWA, it lists the parties and their representatives.

As you can see ALPA acts as an "Agent" not as the party it has negotiated in "behalf of." The DAL PWA is an agreement between DAL and DAL pilots. ALPA acted as the "agent."

Very good again. I have no argument with Webster or Black as to the legal definition of "agent". ALPA is the bargaining agent. You are correct again, your premise is based on Agency Law 101, a freshman course.

I argue that it (ALPA) is also the party to the contract. There is no "group" or "entity" exclusive to Delta in behalf of which ALPA is employed as the agent. ALPA is the agent of ALL members of the Association collectively. ALPA represents them individually and has a responsibility to each of them. Yes, they have empowered ALPA to enter into agreements (contracts) on their behalf; as such ALPA is the making party. ALPA and the Company are the only identifiable entities.

There are X number of individual members of the Association employed by DAL. For the sake of convenience, ALPA has chosen to create internally structured "units" (MEC's) used to coordinate the activity of its membership on the Delta (and other) "properties" and none of them is empowered to enter into contracts. The individual members of the ALPA employed "in the service of Delta" are also not empowered to enter into individual contracts with Delta. The language you quote merely identifies which of its members is covered by ALPA's contract with Delta, nothing more. ALPA remains the "maker".

Here is another quote from two paragraphs of your PWA that is more direct and clearly identifies the "parties" to the contract. Note especially the second paragraph where the term "parties" to the contract are specifically identified. I have underscored them for your convenience.

This LETTER OF AGREEMENT is made and entered in accordance with the provisions of the Railway Labor Act, as amended, by Delta Air Lines, Inc. (“the Company”) and the Air Line
Pilots Association, International (“the Association”).

WHEREAS the Company and the Association are parties to a collective bargaining agreement setting forth the rates of pay, rules and working conditions for the Company’s pilots (“Pilot Working Agreement” or “PWA”) signed June 21, 2001; and,

That is Contract Law 303. Contract Law 202 is a prerequisite.

The following are some more quotes from your PWA that appear to address the equally controversial issue of who owns the "flying" (the Company) and that part of it to which your PWA gives you access.

3. “Company” means Delta Air Lines, Inc.
4. “Company flying” means all flying reserved under Section 1 C. for performance by pilots.

C. Scope
Except as provided in Sections 1 D. and F.:
1. All flying performed by or for the Company or any affiliate will be performed by pilots in accordance with the terms and conditions of this PWA.

Section 1 C. will not apply to flying performed by any domestic air carrier(s)(other than the Company) for the Company or for any affiliate on any permitted aircraft type.

It seems we can determine that NONE of the flying that we do is covered by Section 1.C.

When we take these paragraphs out of the context of the whole, one finds that the plot thickens and perspectives come into play. How impartial and unbiased parties might choose to interpret them is wide open to conjecture. That is why there are so many lawyers and a bureaucracy of monumental proportions and expense all living off the spoils of the disputes created by the mutability of contractual language they themselves create.

It is also why I have to take "Agency Law 101" and you have to take "Contract Law 303".

 

[~~~^~~~]

Surplus :

Thank you for your post. Saved me at least two hours because my information on the CC Air litigation is not complete.

~~~^~~~

 

[FDJ2]

Surplus, I applaud your research. Now just take it a step further. The exemption you noted for carriers that only fly permitted aircraft refers to list integration. Nothing else. In general, when a qualifier is placed on the end of a sentence it only pertains to that sentence and not all previous sentences. If, however, the qualifier is placed prior to a section of a contract, it is generally relevant to the entire section.

Hypothetical examples:

Example #1

"Except for domestic air carriers that only fly permitted aircraft.

Section 1.F.1

All affiliates must be bound by this PWA. Any affiliate who also operates as a domestic air carrier will sign an irrevocable agreement to be bound by this PWA. If the Company acquires an affiliate that is an air carrier, than the Company must integrate seniority lists."

Example #2

"Section 1. F. 1

All affiliates must bound by the PWA (PERIOD). Any affiliate who also operates as a domestic air carrier will sign an irrevocable agreement to be bound by this PWA ( PERIOD ). If the Company acquires an affiliate that is an air carrier, than the Company must integrate seniority lists, unless the affiliate only operates permitted aircraft."

You seem like a pretty bright guy, I think you can see the difference. In the first example, the exemption for carriers that operate only permitted aircraft clearly pertains to the entire section. In the second example, it only applies to list integration. At the very least, in our case, the language is quite clear that all affiliates must be bound by the DAL PWA.

Do you have a copy of all the documents signed by CMR executives when they sold CMR to DAL. I don't. So if you know for a fact that CMR executives never signed an agreement to be bound by the DAL PWA, than you might have grounds to sue and have the entire acquisition revisted.

On a second point. The DAL pilots represent a unique and singular bargaing unit, which has certified ALPA as our bargaining agent. The language is quite clear, both in the DAL PWA, and in the ALPA C&BLs. The "Recognition" paragraph in section one clearly states that the majority of pilots at the Company (DAL) have elected to have ALPA act in their behalf, not in ALPA's behalf. If it gives you solace to think otherwise, have at it. It doesn't change the fact that the the DAL PWA is a legally binding document between DAL and DAL pilots.

 

[FDJ2]

FDJ2 and Russ :

The Sherman Anti Trust Act has been tried in Courts, bunches of times, it has been here since 1890 and has its own branch of government. Fortunately, for Delta and ALPA, there is a clearance agreement that places enforcement of airline matters in the DOJ's "scope."

IOW, the DAL PWA does NOT violate the Sherman Anti Trust Act.

 

[surplus1]

Your points about the placement of language in a paragraph and modifiers to a sentence are well taken. However those issues are pirepheral to the issue of whether or not ALPA is the party to the contray with Delta. It doesn't look like we're going to agree on that point so we'll have to agree to disagree until the courts decide. For the record, the court hare already reset the precedent within the last two years. Once in the US and once in Canada. In the latter it didn't actually go to a trial, the Canadian Government simply accepted ALPA's imposition of its authority as the contracting party. In the US case, ALPA won the litigation.

Do you have a copy of all the documents signed by CMR executives when they sold CMR to DAL. I don't. So if you know for a fact that CMR executives never signed an agreement to be bound by the DAL PWA, than you might have grounds to sue and have the entire acquisition revisted.

No, I do not have a copy of anything that Comair signed in the acquisition transaction. That is why I asked you if you were certain that they had. You've finally admitted that you are not certain. We are two peas in a pod on that issue.

My allegation that Comair never signed anything recognizing your PWA or any part of it, including your Scope, before the acquisition transaction stands as originally stated. In that case the answer is yes, I have read the codeshare agreement that existed between Delta and Comair prior to Delta's purchase of Comair. To the best of my knowledge, neither ALPA's lawyers or the DMEC had access to that contract when it's provisions were relevant.

The point of the discussion is really simply. Two parties, whomever they may be, cannot bind a third party to a contract without the consent of that third party.

When Comair signs an agreement with Delta (prior to becoming a Delta subsidiary) it is bound only by the terms of that contract. If after the fact, the Delta MEC or ALPA or whomever, enter into a separate contract with Delta, Comair is not obliged to recognize the terms of that contract, even though a codicil within that Delta-ALPA contract says that it must. No such codicil was in place when the DAL/CMR contract was originally signed.

Comair does not breach its contract with Delta because of Delta's contract with ALPA. Therefore if Delta cancels its contract with CMR, due to this "new" provision of Delta's contract with ALPA, then it is Delta that breaches the contract between DAL/CMR and DAL exposes itself to the consequences.

Delta's subquent purchase of Comair may well have included Comair's signature on a document recognizing the Delta PWA. I don't know. It is also possible that little "detail" of your PWA may well have been overlooked or ignored. That is why I asked if you were certain if the required signature was in fact obtained.

In the case of SKYW/DAL, we have a scenario similar to the one that existed between DAL/CMR before the purchase of Comair. SKYW's contract with DAL was already in place when ALPA's contract with Delta was modified. If DAL failed, for whatever reason, to obtain SKYW's consent to the chages it made with ALPA, then they do not apply and are not binding on SKYW.

These probems and details are not simple and they are difficult to articulate in forum posts. It would take a legal brief of many pages to argue all the points. As long as Delta doesn't cancel SKYW's contract due to the provisions of ALPA's contract with DAL, it will never see the light of a courtroom. On the other hand if Delta does do that, SKYW will have the option of accepting it, signing on to your terms after the fact, or taking it to court. I have no idea which they might choose.

Should Skywest elect to react by sueing DAL. we'll see what happens. Skywest may never fly aircraft with more than 70 seats, in which case we'll never know.

ACA, which may be in the same circumstance with respect to its new LCC idea and the conflict with DCI. ACA may well have signed a compliance agreement with the Delta PWA, since its codeshare with DAL was established post 1996. The changes you made in your 2001 PWA may therefore be recognized. In either case, ACA has its hands full and is not goig to litigate with Delta.

We live in interesting times.

On a second point. The DAL pilots represent a unique and singular bargaing unit, which has certified ALPA as our bargaining agent. The language is quite clear, both in the DAL PWA, and in the ALPA C&BLs. If it gives you solace to think otherwise, have at it.

If you were correct and the ALPA was not the party to the DAL contract, the RJDC case would have been filed against the DMEC, never filed at all, or dismissed. If ALPA was not the contracting party they wouldn't not be pulling out all the stops to defend their untenable legal position. We shall see how it goes.