Im not a contract expert.

I assume its a violation and so does sailing fun. I dont even care the issue being brought up. All im saying is you cant let a violation go because "later" the court might be more sympathetic. Arbitrators call balls and strikes (best they can) and dont take current economic climate into a violation.

The grievance committee (or whatever we call it here at delta) is trying to identify violations and harm, then they consult with the alpa attorneys. Theres an order to the grievance process, so you might put a sure winner thats easy to explain (and you have precedent) back further when you can double up (or more) on a day.

Anyway, i was simply telling sailing you can't just pick and choose what to enforce or else youre making a past practice of not enforcing the thing you negotiated for. Now that doesn't mean the arbitrator will agree with you automatically.

Again, you're mistaken. The company is free to choose a legal path to stop paying min day, but until such time, we have a contract (as an example).

You sound like you worked in a business where you were a supplier of some sort, and depending on your terms with your clients you may get in the sort of position youre trying to apply. Labor contracts are a different animal.

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​​​​​​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.

The language is simple and broad, too broad IMHO. The arbitrator would be settling the question of use. If he/she rules there is reason to invoke the language, then they have a green light to apply it to SCOPE. There is no timeframe or bounds that limit the amount of outsourcing Delta would be able to do and this would probably end up in front of a judge because it effectively eliminates all SCOPE protections. The best we can do is negotiate an end to the compliance relief. The month of furlough pay is their trial ballon and our canary.

We will see if they are willing to outsource to entities in or soon to enter bankruptcy. This business plan works great when there is discipline and structure to a JV but with the partners fighting for survival this may prove unmanageable and affect the brand. If management sees this as the prime (only) opportunity and desires a SCOPE fight to make and end run around compliance requirements, this could be the biggest single issue that affects DALPA jobs and contracts for the future. Those most affected may not be around to vote on any settlement. Delta holds the voting demographics in hand by means of furlough.

This is what concerns me the most. Not that they need FM for survival (assuming that’s the case), but that there are little to no limits as applied to Scope, and there are no metrics to dictate when FM is concluded. IMO they’ll use FM for as long as they can, even past the point of profitability, and it will take arbitration to turn it off. It screams blank check. It’s like turning a kid loose in a candy store and saying, “text me when you’re done”. I actually don’t fault the company for this, I fault the ALPA attorneys that green lighted this broad and unbound language in the contract back in 2016. We shouldn’t be asking the question “what turns FM off” after it’s already been declared; the contract should already establish what constitutes recovery from FM. This is a glaring crater in an otherwise decent contract IMO.

And yes, I do believe we should grieve it. If we don’t win, then at least establish some boundaries in arbitration for what constitutes recovery (what turns FM off).

I don’t assume it’s a violation. In fact the contract states it’s not a violation if the circumstances are beyond the companies control.

So your point the whole time was, "this isnt a violation today, but it will be 18-24 months from now"?

Can you think of a situation where the company would be unable to pay furlough pay yet still be in operation? What the company currently should do if they are concerned about FM precedent is not pay furloughed pay but provide each pilot with a equal benefit. That could be a lump payment outside of the contract or a constructive furlough date beyond the planned date giving the pilot the same benefit.

It might be or it might not. At the moment it’s a slam dunk for the company with the rim lowered to 4 feet. As the economy recovers and imposed flight restrictions ease the rim starts to move higher. It will be very easy to show traffic volumes and eased restrictions down the road and make a compelling case. At the moment we don’t even have a case.
if we have a vaccine in the next 6 months I doubt we will even need a grievance.

Sure....when the Company's cash balance is much lower and they have obligations not covered by a FM clause and they are forced to choose which obligations to pay. As I said in my post, the standard isn't impossibility ("unable" in your inquiry), it is "impracticality." The impracticality becomes more and more relevant as cash balances dwindle with other, non-FM protected, obligations still hanging out there. You are disregarding the facts and circumstances of this particular situation. Very few of the 1,941 would be adversely affected by the company paying out under 21.B.9.a versus 21.B.3. The difference to the company is de minimus. The smaller the number of pilots affected means the smaller the difference in payout between 21.B.9.a and 21.B.3 and, therefore, the harder it becomes for the Company to establish impracticality of compliance with 21.B.3.