Luck and the Arbitration Process

Justice Be Damned!

Years ago a young attorney defended a pilot at an arbitration. The case was so-so, but he won. Then this attorney came up against the same arbitrator on the next case, and that case was not that strong either, but he still won. Then, he finally had case with a pilot so strong there was no way he could lose. This pilot had all the facts in his favor. As it turned out, the attorney was up against the same arbitrator as the previous two times.

They greeted each other, and then the arbitrator said, "You do know, you're going to lose today."

The attorney said, "But you haven't even heard the facts, and we have a very strong case."

The arbitrator said, "You don't understand. Today is your 'turn' to lose."

Arbitrators are Businessmen

It's been said that arbitration is another form of prostitution by figuratively screwing someone. But instead of pleasing one person, arbitrators are paid to please two. These businessmen and women dance a fine line and determine whose turn it is to win. If they don't do what their bosses say, they're off the list. If the Airline controls the union, as with Delta and ALPA, the results are evident. Let the little cases go to the pilots, but those that have associated lawsuits must go to the company. Sometimes the arbitrator doesn't have to think very hard to figure who to rule for.... they just need ten minutes. 

Arbitration has nothing to do 

with Justice for the pilot 

In the article ALPA the Puppet, Delta the Puppet Master I provided an overview of how ALPA worked with Delta in effort to remove me from duty. The events of my case can be found in the Seattle Times, if you missed it. In the ALPA post, you'll see the multiple times Delta went to an extraordinary effort to engage Arbitrator Carol Wittenberg. Not once. Not twice. But three times! The third time being a binding mediation. 

Carol Wittenberg

"Once is happenstance. 

Twice is coincidence. 

Three times is enemy action."

Ian Fleming 

After trial, awaiting the ruling I finally was able to take my grievances to hearing. My goal was to hold the company accountable for the many ways that Delta violated the contract in this process. Below is the list of violations. At each point, I could have filed a DFR because ALPA was participatory in, or knew of, all actions. Instead, I decided we would ensure that this never happened again. I gave ALPA the chance to redeem themselves.  Huge, huge mistake. 

List of Violations:

1. The Company compromised the Section 15 process by selecting Dr. David B. Altman to participate in the pre-Section 15 determination process and, thereafter, allowing Dr. Altman to participate in the post-Section 15 process notwithstanding the clear conflict of interest; 

2. The Company and Delta DHS Dr. Thomas Faulkner selected the CME prior to the DHS and the ALPA Aeromedical advisor, currently identified as AMAS (Dr. Riccitello), conferring to the choice of the CME in violation of Section 15 B. 4.;  (We later learned Puckett Selected Altman, and advised Falkner.)

3. The Company [Puckett], and/or DHS Dr. Faulkner, selected the CME six weeks prior to the DHS’s required initial assessment to determine if there was a reason to believe I may not meet the physical standards in violation of Section 15 B. 1. c.; 

4. The Company provided the CME my safety report and a link to my blog one week prior to my being placed into a medical evaluation; the aforementioned documents were not medically relevant and, therefore, the furnishing of this information constituted a violation of Section 15 B. 6.; 

5. The Company provided the CME a 4 lb. notebook of documents that were not medically relevant in violation of Section 15 B. 6., prior to Company Labor Relations attorney Puckett and Captain Phil Davis spending 10.5 hours discussing this non-medically relevant information with the CME; 

6. The Company invited the CME to multiple meetings as a participant in the decision to place me under a Section 15 in violation of Section 15 B. 3., and subsequently paid him $74,000 for his review, when the average mental health evaluation is $3500. 

7. The Company authorized the DHS to provide the FAA the CME’s diagnosis and full report prior to the Neutral Medical Examiner (NME) evaluation, contrary to the PWA instruction that the CME will not report his determination until the completion of the NME evaluation, in violation of Section 15 B. 7. b. 

8. After the Company authorized the violation of Section 15. B. 7. b., where the DHS provided the CMEs medical report to the FAA, the subsequent FAA medical appeals evaluation overruled the CME’s report, yet the Company denied the return to duty, despite the FAA appeal procedures in violation of Section 15. B. 8. g. 

9. The Company offered Dr. Gitlow—a forensic psychiatrist retained as the Pilot Medical Examiner (PME)—a more lucrative contract with the conditions that Dr. Gitlow would not participate in my evaluation if he were to work with Delta. This interference is in violation of the selection of the PME Section 15. B. 8. b.; 

10. The Company advised the CME, “I would emphasize is that ultimately picking an NME is your call” in violation of the PWA requirements of a mutual agreement between the CME and PME, Section 15. B. 8. d.; 

11. The Company allowed for and encouraged an extensive delay through its overt participation and proffering an enormous amount of non-medically related information to the CME, that delayed the CME diagnosis for nine months; the Company also delayed the acceptance of NME’s confirmation on September 2, 2017 until September 26, 2017, both violating the PWA requirement that the review be conducted as “expeditiously as possible” Section 15. B. 10.; and 

12. The Company was required to convey to the CME that the pilot be provided with a written notice of the CME’s determination in addition to an expedient process. However, the Company was notified of the false bipolar diagnosis in October, 2016, yet the CME did not provide written notice until December 24, 2016, in violation of Section 15. B. 7. a., and Section 15. B. 10.

October 15, 2019, the day of my arbitration hearing, I noticed that Delta's counsel Jeff Wall had all the binders from the AIR21 trial. I voiced my objection to my ALPA attorney. This grievance was not about my AIR21 case. I told my ALPA National attorney, Jeff Loesel, I would not proceed if these were to be used. In response, Loesel objected to these documents at beginning of the hearing. He made it perfectly clear that the reason they put me into the section 15 was not at issue [I had dropped that grievance two years earlier]. Jeff Wall agreed! Arbitrator Wallin agreed. This was not about the AIR21. 

Delta also had in their possession, emails between myself and ALPA legal. I challenged this. Loesel agreed it was a violation of confidentiality, yet nothing ever came of that. 

I later learned that the assertion and agreements between all parties about abstaining from my AIR21 case, was only so I would continue with this grievance hearing. ALPA and Delta, with the help of the Arbitrator, were setting me up and needed this process to continue. 

Attorney Jeff Wall

At the opening of the grievance hearing Jeff Wall stated:  

"This proceeding here, in the view of Delta Air Lines, is not a proceeding in which the Association and Delta are necessarily opposing parties.

 First Officer Petitt has repeatedly criticized, and I would suggest even defamed representatives of the Association, including representatives of the national organization for ALPA, local counsel for ALPA, and other ALPA representatives, including what’s known as AMAS, of ALPA Aeromedical."

Jeff Loesel (Jeffrey.Loesel@alpa.org) my National ALPA attorney remained silent. He did not object that ALPA and Delta were not opposing parties! His silence told arbitrator Gerald E. Wallin that he agreed with Jeff Wall and that Delta and ALPA were in this together against me.

This little old man [don't be misled by the photo... he's aged] stared at Jeff Wall while he spoke. He turned his head and looked a Jeff Loesel for a response. Loesel sat there with a  blank stare, lips closed. 

A very old Photo of Gerald E. Wallin

jjwallin@usa.net

Arbitrator Gerald Wallin then immediately requested a "ten minute break" in the proceedings to:

“Sit here and think about things for a while.” 

I guess for some, it takes ten minutes to understand the obvious. But then again, Wallin only charges $2250 per day so he could be a little slower than most. Arbitration is a very lucrative business. 

After his ten minute break, Walliln returned to my hearing and ended it without any evidence being presented. He claimed I was time-barred on all the grievances. Hmmm. Would ALPA have even proceeded if that had been true? But, he then asserted he would think about proceeding and determine if we could continue. I waited for months, calling ALPA, emailing often, and heard nothing. Until I did, from Delta. 

On March 3, 2020, Delta filed a Motion to Admit New Evidence of the Arbitration Award and Motion for Brief Stay of Proceedings.  Attached was a System Board of Adjustment (SBA) opinion and order dated January 27, 2020 and, contrary to standard practice, was signed by only the company representatives and the Arbitrator. Delta claimed the “newly issued award” rejected my theory that Delta’s initiation of the Section 15 process was in retaliation for my reporting alleged safety issues. They asserted that collateral estoppel prevailed because Delta won the grievance, therefore our nine-day trial didn't count. 

How could that be? My grievances were not about causation, only the violations of the contract. And ALPA asserted they didn't know about this. Something was amok. 

The Opinion Letter

Wallin asserted the grievances before him were untimely. But that was not the first thing he said. He asserted that Delta won the grievance that I had dropped years earlier. The same grievance that all parties agreed would not be discussed at the hearing regarding the AIR21. He said the 2016 Graham decision, the perpetrator who played judge in his own actions, was final and binding with respect to the issue of the Section 15 process because if a grievance is not complete in two years, the company wins. But I had withdrawn mine. That did not matter. Nor did it matter this was not an issue before Wallin. 

The ALPA representatives of the executive board, Captain Ron Hay and Captain Monty Montgomery, were sitting at the table on October 15, 2019 when Jeff Loesel emphasized my concerns that the proceedings must not touch the AIR21 complaint in any manner. Jeff Wall, Delta counsel, and Arbitrator Wallin both agreed any decision regarding the pending grievances would not interfere with the AIR 21 proceeding.  

Therefore, ALPA’s executive board knew the AIR 21 elements were not to be addressed, as did ALPA attorney Jeff Loesel, and they were obligated as system board members and as ALPA representatives to have identified the gratuitous nature of the ruling on a grievance that was not before Wallin. Captain Ron Hay and Captain Monty Montgomery, the ALPA board, allowed the language to remain. Typically these boards allow the ruling to go through, but they have the ability to change the language. Shame on those two pilots. 

My ruling did not come out in May 2020. And while it did not change the outcome, just delayed it until December, ALPA cost me thousands of dollars in attorney fees fighting this. 

"There comes a point in every man's life 

when he has to say: 'Enough is enough.'"

Lance Armstrong

The above quote most certainly applies to women too. I finally filed a DFR. Duty of Fair Representation. These are very difficult to win, most attorneys won't touch them. ALPA knows this. If you can get to a jury, you win. But the trick is getting there unless you have a recording stating your union won't represent you. This is the problem: Your dues pay for the legal counsel. Granted you don't get a choice who that is. But, it's technically your fault if you employ an incompetent attorney. And incompetence versus lack of representation is subjective in nature. 

 "The obscure we see eventually.  

The completely obvious,  

it seems, takes longer."

Edward R. Murrow

ALPA is the only union 

Delta allows on its property 

The reason the government created the AIR21 statute is because because "safety cannot be in the hands of a businessman". If the government knows that the RLA arbitration process is a negotiated business affair, of which safety cannot be part of, then why is the pilot career subject to such fraud and manipulation?

When the AIR21 law was enacted, I believe that it was designed for "show" only, and airline executives allowed it into place because the law doesn't hold anyone accountable, has minimal financial consequences, with minimal protection for the employee. The law opens the door for abuse and a war of attrition against the employee. I am asking everyone to please sign this petition to change the law.  We can fix this, but I need your help. 

I filed my DFR and that has become another story of the legal system... 

Until then, 

Enjoy the Journey

Dr. Karlene Petitt
PhD. MBA. MHS.
A350, B777, A330, B747-400, B747-200, B767, B757, B737, B727