1. In accordance with the National Mediation Board’s certification of July 8, 1997 (NMB Case R-6501), the Company hereby recognizes the Association as the duly designated, exclusive, authorized representative of the Pilots who are employed by the Company for the purposes of the Railway Labor Act, as amended.
2. The Association and the Company hereby adopt this collective bargaining agreement, including all Letters of Agreement between the Company and the Association. All such agreements are collectively referred to as the “Agreement”.
B. PROTECTION OF RIGHTS:
Nothing in this Agreement shall be construed to limit or deny any Pilot hereunder of any rights or privileges to which he or she may be entitled under the Railway Labor Act, as amended.
1. Except as otherwise provided in paragraph 4, below, all present and future revenue flying performed by Emery Worldwide Airlines (EWA) on aircraft which are owned, leased or operated by EWA shall be performed by Pilots whose names appear on the Emery Worldwide Airlines Pilots’ System Seniority List in accordance with the terms and conditions of the Agreement.
2. For purposes of Paragraph C.1.above, revenue flying shall include:
a. Charters and wet leases performed by EWA:
b. Ferry Flights (but not including ferry flights of newly acquired aircraft prior to being placed in revenue service, ferry flights involving aircraft out of service for heavy maintenance (C or D checks) or engine-out ferrys);
c. Training flights (except those training flights that are part of a program to train the initial cadre of EWA Pilots on a new aircraft type);
d. Test flights (except test flights assigned to management or other Pilots, in accordance with the terms of this Agreement).
3. EWA may continue to subcontract its equipment to other operators on either a wet-lease or dry-lease basis. EWA agrees that it shall not dry lease aircraft to any other entity if the business purpose of the dry lease is to provide service over EWA routes for current EWA customers. The preceding sentence shall not be applicable to B-727 flying conducted by Ryan International Airlines pursuant to Article 1.C.4.a, below.
4. The provision of this paragraph C., shall not apply to the following flying:
a. Flying conducted by Ryan International Airlines (“Ryan”) using no more than the number of B-727 aircraft presently being operated by Ryan, whether owned by Ryan, by EWA, or by any company affiliated with EWA. (A list of B-727 aircraft by tail number as described in this paragraph, that are presently being flown, will be provided to the Association and included as Appendix C to this Agreement).
b. Flying conducted by Express One using no more than the number of B-727 aircraft presently being operated by Express One, whether owned by Express One, by EWA, or by any company affiliated with EWA. (A list of B-727 aircraft by tail number as described in this paragraph, that are presently being flown, will be provided to the Association and included as Appendix C to this Agreement).
c. Subcontracting for test marketing new routes or services for up to one (1) year.
d. Subcontracting of up to a total of two (2) B-747, MD11 or similar type aircraft for up to one (1) year, or, if the Company can demonstrate that the operation of such aircraft by EWA would be inefficient or uneconomical, for longer periods.
e. Subcontracting for the use of feeder aircraft with a gross takeoff weight of less than 100,000 pounds.
f. Subcontracting in order to protect the Company’s schedule in the event of an act of God or other circumstance beyond the control of the Company which would otherwise cause the loss of Company business.
g. Subcontracting necessary due to the grounding of a substantial number of the Company’s aircraft by governmental authority, war emergency or events of a similar nature.
h. Flying performed by another air carrier pursuant to an interline agreement, a code share agreement, a marketing alliance, a pro-rate agreement, a blocked-space agreement or air cargo services agreement, between such air carrier and the Company.
i. Service exclusively between international points (with no intermediate U.S. destination).
5. EWA will not establish or maintain an alter ego carrier nor will it transfer its aircraft to another CNF subsidiary for such purpose.
6. EWA agrees that it shall not furlough or reduce in status any of the Pilots whose names are listed in Appendix F, nor any of the Pilots whose names are listed in Appendix G (once they complete their probationary period), for so long as EWW subcontracts any of its Prime Time lift requirements, except those B-727 airlift operations conducted by Ryan International Airlines pursuant to paragraph 4.a, above.
7. The Company shall be excused from compliance with the provisions of Paragraph 6, above:
a. In the event of a circumstance over which the Company does not have control. The term “circumstance over which the Company does not have control” means act of nature, labor dispute, grounding of aircraft by a government agency, decrease in available fuel supply or other suppliers being unable to provide sufficient fuel or other critical materials for the Company’s operations, revocation of the Company’s operating certificate(s), war emergency or other events of a substantively equivalent nature over which the Company does not have control and which causes the grounding of a substantial number of the Company’s aircraft.
b. In the event the Company loses a significant portion of its business (e.g. Priority Mail contract).
8. In the event the Company elects to furlough Pilots under paragraphs 7.a or b., above, the maximum number of Pilots furloughed shall be the number required to staff the grounded aircraft and/or lost portion of business. Upon being recalled from such furlough, the provisions of paragraph 6, above, will again be applicable to the recalled Pilot.
9. The provisions of paragraph 6, above, shall not apply in (i) the case of a Professional Flight Engineer who has failed to qualify for a Pilot position should he be unable to continue to hold an FE position due to a reduction in the number of three (3) crewmember aircraft; or (ii) an SO with insufficient seniority to hold a position following a reduction of three (3) crewmember aircraft.
The parties agree that any grievance filed by the Association alleging a violation of Article 1.C.and E. of this Agreement shall by-pass the initial steps of the grievance process and shall be submitted, heard and resolved before the System Board of Adjustment. The Grievance shall be heard no later than thirty (30) days following the submission to the System Board of Adjustment and decided no later than thirty (30) days after submission unless the parties agree otherwise in writing.
This Agreement will be binding upon the parties hereto, their successors, administrators, executors and assigns. For purposes of this paragraph, a successor shall be defined as an entity which acquires all or substantially all of the assets or common stock of the Company through a single transaction or a series of multi-step transactions that close within a twelve (12) month period.
The Company shall require that any such successor enter into a written agreement to be bound by this provision as a condition of any acquisition transaction.
There shall be no obligation on the part of a successor, which itself is a certificated air carrier, to operationally merge the Company’s operations into its own operations and it shall not be deemed a violation of Section C for the successor to operate the two pre-acquisition carriers as separate airlines.
F. OPERATIONAL MERGER
In the event of an operational merger between the Company and another air carrier, the following seniority-integration procedures will apply:
1. If the Pilots of both pre-merger carriers are represented by ALPA, there shall be a seniority integration of the two crewmember groups in accordance with the Association’s Merger Policy.
2. If the Pilots of the two pre-merger carriers are not both represented by ALPA, there shall be a seniority integration of the two crewmember groups in accordance with Sections 2, 3, and 13 of the Allegheny-Mohawk Labor Protective Provisions.
3. The Company or Successor may participate in the proceeding leading to the integrated seniority list. The integration shall not require a “systems flush,” upgrade training or transition training of any Pilot.
4. The respective collective bargaining agreements shall be merged into one agreement as a result of negotiations between the Pilot groups and the Company or Successor. In the event a fully merged agreement is not reached within twelve (12) months from the date an integrated seniority list has been completed, any outstanding issues shall be jointly submitted to Interest Arbitrator Robert O. Harris (or in the event he can not serve for any reason, George Nicolau) for final decision.
5. The pre-merger airlines, including aircraft, aircraft orders and options to purchase aircraft, shall remain separate for all purposes until the integrated Pilot seniority list and the combined collective bargaining agreement are accomplished. It shall not be deemed a violation of paragraph C of this Article for the Company or Successor to maintain and operate the two pre-merger entities as separate airlines during the period prior to the determination by the National Mediation Board of any operational merger issues.