Notwithstanding months of vigorous negotiations and subsequent good faith
participation in mediation efforts, the parties to this dispute are deeply divided, as is
apparent from their respective proposals: Each does little more than stack the deck for
their own constituencies in ways that are neither fair nor equitable.7 As will be
discussed below, this Board has chosen a different approach, one that adopts a Ratio
and Category basis, but with a simplified grouping of aircraft, a “Pull and Plug”
adjustment mechanism that addresses Attrition considerations and a limited period of
Conditions and Restrictions designed to deal with, among other things, fleet expansion
and reduction.

In this case, well before the merger announcement, Delta had decided to hire
some 400 pilots to staff summer flying. 38 45 Delta pilots, however, had been approved
for hire prior to the announcement and some had received various pre-hire documents,
but were not actually trained or included on the seniority list until later in the year.39
The Delta Representatives urge the Board to treat all such pilots as though they were
hired before the April 14 merger announcement rather than as “Constructive Notice”
pilots as of the date of the merger announcement. The DAL representatives contend
that because these pilots ultimately were hired as a result of the earlier (preannouncement)
staffing decision, they should be treated as if they were pre-merger
Delta pilots.

Because none actually had been hired and none had been placed on the Delta
seniority list before the merger announcement, however, this Board must conclude they
do not satisfy the standard test for Constructive Notice. Cases cited by the Delta
representatives compel no contrary conclusion. Arbitrators in the 1977 Saturn/TIA40
and 1981 Pan Am/National41 mergers found cause, due to unforeseen extenuating
circumstances, to deem certain pilots as having been “technically” hired before the
merger announcement.42 But even were one to accept that rationale, the facts here are
inapposite. In the present record, we find neither extenuating circumstances sufficient
to require arbitral intervention in the name of equity nor persuasive evidence that these
pilots were otherwise unfairly treated. The most that can be said for the DAL pilots at
issue is that their processing was close to, but later than, the critical announcement date.

The Delta representatives also note, however, that, pursuant to a “flow-up”
agreement between NWA and Mesaba, seven “Mesaba Hold Back “ pilots have been
placed on the NWA seniority list and assigned hire dates prior to the merger
announcement, despite their not commencing initial operating training at NWA. They
claim this is contrary to ALPA Merger Policy.43 We need not, therefore we do not, seek
to review or resolve claimed anomalies in the Merger Policy as it may relate to
Constructive Notice issues. For purposes of this decision, it is sufficient for the Board to
note that, whatever the propriety of assigning hire dates to the Mesaba Hold Back pilots,
there are no compelling grounds for concluding the Delta pilots at issue should be
considered as having been hired prior to the merger announcement. The April 14 date is
a serviceable deadline, in this case. With reference to constructing the List, the 45 DAL
pilots are to be included in Category 4 for purposes of establishing the staffing ratio, but
for seniority purposes, included below the most junior pre-merger NWA or DAL pilot on
a date of hire basis.