Reroute

After reviewing the last arbitrated award for claim # 2009-1 I came away with a few of observations which are relevant here.

1. An arbitrator can not add to, remove from or modify the BEH award
2. Specific terms prevail over general terms in the same document.
3. Conditions and restrictions 4 and 5 must be read together, neither negating the other.

What I'm getting to here is that, as Mr Eischen pointed out when he stated; “Specific terms prevail over general terms in the same document which otherwise might be controlling” that conditions and restriction number four is very specific, whereas conditions and restrictions number 5 is more general in nature and those two conditions and restrictions must be read together and that, the "cardinal principle is that an interpretation which renders either provision nugatory must be avoided in favor of an interpretation which gives reasoned meaning to each."

So what do I conclude from all this is that conditions and restrictions #5 does not negate the protections in # 4.

If the "replacement aircraft" were other than a 777, 747, or 787 that's a different story. JMHO

Here are some excerpts from the decision. I added bold for emphasis. You can find the entire decision on the Delta pilot website and draw your own conclusions. library>DAL dispute resolution>Dispute resolution>dispute resolution agreement arbitration-award number 1-claim 2009-1

¶4 For the period of five (5) years beginning with the first bid period after the issuance of the Single Operating Certificate (SOC), no pre-merger Northwest pilot may be awarded or displaced to a vacancy on a B777 aircraft or category and no pre-merger Delta pilot may be awarded or displaced to a B787 or B747 vacancy.

¶5 Should the merged company take delivery of any aircraft which is/are a replacement of any aircraft covered by Paragraph 4, the captain positions and, as applicable, the first officer positions on each such replacement aircraft will be allocated in accordance with the Paragraph 4. Restrictions on the type it is replacing.

For that contingency, these parties had the wisdom and foresight to establish, by Letter of Agreement dated April 29, 2009, DRC processes and procedures culminating in final and binding “rights arbitration”, which has been invoked in the instant claim concerning C & R ¶¶ 4 and 5.

However, it is necessary to reiterate and emphasize at the outset that we are now engaged in “rights” arbitration under arbitral authority expressly circumscribed by the introductory phrase of the second sentence of Article VII (G) of the DRC LOA of April 29, 2009:

“The decision of the arbitrator may not add to, remove from or modify the BEH Award.”

As I have observed elsewhere, however, it is not the proper function of any post hoc rights arbitrator to rewrite the words of an interest arbitration award under the guise of rendering an interpretation.

Both sides invoke the familiar rubric that plain and unambiguous language controls; the Delta-North group invoking ¶ 5 in support of its “Proposed Award” and the Delta-South group citing ¶ 4 in opposition. But those two paragraphs in the Conditions and Restrictions must of necessity be construed together, because ¶ 5 expressly refers to “any aircraft covered by Paragraph ¶ 4". When read together, it is apparent that in some factual circumstances lurking latent ambiguity could require reconciliation of ¶¶ 4 and 5. In performing that task, the cardinal principle is that an interpretation which renders either provision nugatory must be avoided in favor of an interpretation which gives reasoned meaning to each.

In apparent recognition of the reality that such reconciliation could be required, learned Counsel both invoked another age-old principle familiar to courts, arbitrators and other practioners of contract construction: “Specific terms prevail over general terms in the same document which otherwise might be controlling”.

If it were necessary to turn the decision of the present case on that legalistic “inside baseball” rationale, the principle of “Specialia generalibis derogant” appears more supportive of the South position than that of the North position, because it is clear that the language of ¶ 4 is more specific than that in ¶ 5.