April 24th, 2019
With everything going on the legal front, I am getting a lot of questions regarding the myriad of cases we are involved in. First of all, always remember that this over-litigious management group changed the whole tone between themselves and the pilots of Atlas Air, when they sued us in Federal Court using a host of unsubstantiated charges. So, let me go through it all:
1) The company’s case seeking an injunction, mentioned above, was basically to list all slowdowns in aviation history they were aware of and hope at least some of it would stick. As you all remember, while pretending to act in good faith, the company executives paid experts vast amounts of money to build a false case based on misinformation and phony math. As we later found out they had been building their case for years, while all the time pretending to be dealing with the pilots in good faith. We call that “sand bagging”. On appeal, the union attorneys presented an excellent case was that was heard by the US Court of Appeals for the District of Columbia Circuit, we now are waiting for the decision from the court of appeals on our petition to lift the injunction on the work slowdown. That decision can come at any time.
2) On May 3rd in New York City, our attorneys will be arguing our appeal to the Second Circuit of Appeals in New York City, appealing the decision from the federal district court in New York that required us to arbitrate whether or not the contracts require us to engage in forced amalgamation negotiations as a result of AAWW’s 2016 acquisition of Southern Air Inc.’s corporate holding company. The Union’s position is that the acquisition did not trigger the amalgamation procedures under the contracts and that we are legally entitled and required to complete our negotiations pursuant to Section 6 of the RLA. If we are successful, it will stop the arbitration proceedings pending for both Atlas and Southern. The arbitration for Atlas is arbitrator Nicolau and the arbitration involving Southern is before Arbitrator Bloch. Both arbitrations have been conducted and briefed, and decisions from both of those cases are still pending. We expect rulings on both of these arbitrations sometime in the summer of 2019.
3) Now let’s move on to our arbitrations. To date we have won the arbitration of strike language heard by arbitrator Kasher, as well as, the subcontracting of passenger flying in front of arbitrator Krinsky. We are awaiting a decision of the Kalitta cargo subcontracting grievance in Hong Kong from arbitrator Jaffe and his panel. That case stems from an attempted CBA workaround by the company of the Atlas CBA’s Section 1 job protections. During the work around, the company also ruthlessly violated not only our CBA but, may also have violated Hong Kong law and perhaps other foreign laws.
4) On May 1st, we will present our case to arbitrator Vernon in New York City regarding the company’s mismanagement of the Atlas Seniority list and the use of it to randomly treat pilots in a subjective and discriminatory manner.
There are several other arbitrations coming forward later in the year, and I will update you further on these in the weeks to come. For now, that should hopefully clarify somewhat the complex and confusing matrix of legal proceedings.
Most arbitrations are the culmination of long hard work by our union stewards as they persist in holding up the integrity of our CBA against the most anti-labor management the airline industry has ever seen. Indeed, we find ourselves employed by a management group that now threatens not only our CBA, but our personal safety and that of the public in general as well.
Last week we participated in the defense of one of our pilots at an arbitration over the unjust discipline imposed by the company for allegedly delaying a DHL flight. The company virtually admitted this was unjust discipline by overtly delaying and impeding this arbitration from the start. Our lawyer and the arbitrator, after much wrangling back and forth, eventually forced the company to agree to dates and resume the hearing on April 10 & 11, 2019 in New York City. At the first hearing, held on September 13, 2018, the union subpoenaed the Atlas System Chief Pilot, Ray Dufour, to confront him with his now famous remark that “[T]he airplane does not move until the catering is right”. Delay was demonstrated as the company’s agenda from the start of this case as they used a series of dirty tricks to make sure the hearing did not get completed last September. This case had a somewhat comical and sinister side to it though. The resumption of the arbitration began on April 10th with the company again refusing to produce the elusive Dufour, just like it had done 7 months earlier. This was like a grown-up version of “hide and seek” at times. The union this time informed the arbitrator that we had tracked down the mysterious and reclusive Atlas System Chief Pilot and that fortunately he was in, of all places, yes Manhattan, right under all of our noses. After 2 hours of the arbitration, with company’s attorney trying to block DuFour from testifying in front of the arbitration panel the company attorney was trapped, as he had run out of excuses and hiding places for Dufour. He thus agreed to provide the exact whereabouts of Dufour. Indeed, the company attorney reluctantly admitted that Dufour was indeed just a few blocks away from the Manhattan arbitration hearing location; just as the union had described earlier in the day. In one last gasp to block Dufour from testifying, the company’s attorney desperately charged that Dufour had not been properly served a subpoena by the union. Now for the first time in the union/company history of Atlas and Polar, this company was now changing the rules and would require the union to serve DuFour his subpoena according to the federal rules of subpoena service. At this point, I asked ExCo Vice Chairman, Captain Yngve Paulsen, and Union Chief Steward, Captain Dave Mason, to undertake the very tricky task of serving the elusive DuFour with the subpoena to appear before the arbitration panel, along with the $40.00 witness fee as the company attorney insisted. They successfully were able to personally engage Dufour face-to-face in his hotel lobby. Dufour readily accepted the $40.00 and not so enthusiastically the subpoena, but he didn’t want his picture taken regarding the service of the subpoena. With their mission accomplished, our impromptu task force headed back to the arbitration. So, if you have a problem on the line and can’t find Dufour, you now can understand why; it took us 7 months to find him. By changing the witness rules, this over litigious management has further complicated the conduct of these types of proceedings going forward.
When Dufour finally did testify, he never admitted saying that the “plane does not move until the catering is right”. That is precisely what the Court in Washington DC found during the “slowdown” injunction case discussed above. The Company did not even attempt to refute what DeFour said. Now, though, in another setting, DuFour was well coached on dodging and avoiding the question at hand, by repeatedly saying “I would not have said it that way” over and over again. Unfortunately for him, we had 2 truthful witnesses who testified that Dufour actually said it. In addition, we got a bonus, as we found out why our Captain was unjustly disciplined. Not surprisingly it really had nothing to do with catering. The company witnesses testified, under oath, that at 18 flight delays, DHL fines Atlas $40,000. This flight delay in question was number 18, which our captain would not and could not have known. This number triggers a fine and we also feel reduces the performance bonuses that upper management gets from DHL. Delays number 1-17 were not disciplined and neither were the delays after the 19th. Apparently, this is Atlas’ version of “Russian Roulette”. So, you see they can play games with the livelihoods of we the pilots and our families, but when you touch “one red cent” of management’s over inflated and, compared to the rest of the industry, grotesque pay, they get really upset. Mercifully, the case finally concluded on April 11th. We now await the arbitrator and his panel’s ruling in a couple of months or so.
Remember Always be “ALL-IN”
Robert J. Kirchner
Atlas Executive Council Chairman