Originally Posted by FL370esq

​​​​​​I keep going back and forth on this issue, Denny. I think reasonable minds would agree that COVID has created a FM more widespread and deeper than the events of 9/11. Thus, I think an arbitrator would find this pandemic and the subsequent government-imposed quarantines and lockdowns to be a circumstance beyond the Company's control.

However, the reason a contract has FM provisions is to excuse performance of a contractual duty. The "old" standard to be measured was impossibility of performance - your factory burned down (presuming you didn't torch it) and now you cannot deliver the 10,000 widgets to your buyer on Friday. The "impossibility" standard has been softened and encompasses more of an "impracticality" perspective. However, and directly relevant to this issue, just because a contract has FM language in it does not mean all of its provisions are automatically triggered. Instead there is a further requirement that the FM event actually result in the Company being “prevented” or “hindered” or “delayed” in performing. Now that Delta has procured an additional $6B through last week's bond offering, I think the Company would be hard pressed to establish it has been "prevented" or "hindered" or "delayed" from paying furloughees that which is due to them under the terms of 21.B.3., especially when you outlay the cost of that performance against the current balance sheet. It isn't as if we are talking about a contractually agreed-upon 5% pay rate increase for 12,000+ pilots. It is a very, very small percentage of the seniority list who are affected and a matter of one month's furlough pay at that. I don't see the arbitrator finding that it is impractical for the Company to comply with that provision.

As you know, 21.B.9.a states: "The Company will be excused from compliance with the provisions of Section 21 B. 1., 3., and 8. in the event that a circumstance over which the Company does not have control substantially affects the Company’s operations and was the cause of such noncompliance." I don't think the Company prevails on the second prong because the cause for non-compliance was not the circumstance itself, but rather a managerial choice. It wasn't that the Company couldn't pay, it is that the Company is electing not to pay when it has the reasonable and practical means to do so.

Further, I don't believe a grievance on this matter ties the hands of DALPA in any subsequent FM matters because the argument is not whether the pandemic is a circumstance over which the Company does not have control (that would likely be conceded solely for argument sake on this issue) but rather the argument is whether it is impractical for the Company to comply with its contractual obligation under 21.B.3.

Of course, until the Company furloughs and then the Company fails to pay those furloughees according to the provisions of 21.B.3, there is nothing to grieve as no one has been "injured" at this point. Anticipatory breaches are generally not grievable. Hopefully the much-rumored deal to mitigate/eliminate furloughs will come to fruition and this will all be a "moo" argument.