BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, DC ) Application of ) ) Docket No. OST 2015 0261 NORWEGIAN AIR UK LIMITED ) ) for an exemption under 49 U.S.C. 40109 ) and a foreign air carrier permit pursuant to ) 49 U.S.C. 41301 ) ) COMMENTS OF LABOR PARTIES ON U.K. GOVERNMENT DOCUMENTS Edward Wytkind, President Transportation Trades Department, AFL CIO 815 16th Street NW Washington, DC 20006 Phone: 202 628 9262 Email: edw@ttd.org Alex Garcia, Secretary Treasurer and Air Transport Division Director Transport Workers Union of America AFL CIO 501 3rd St. NW 9th Floor Washington, DC 20001 Phone: 202 719 3870 Email: agarcia@twu.org Russell Bailey Air Line Pilots Association 1625 Massachusetts Avenue NW Washington, DC 20036 Phone: 202 797 4086 Email: Russell.Bailey@alpa.org Sara Nelson, President Association of Flight Attendants CWA 501 3rd Street NW Washington, DC 20001 Phone: 202 434 0574 Email: snelson@afacwa.org
Sito Pantoja, General Vice President International Association of Machinists and Aerospace Workers 9000 Machinists Place Upper Marlboro, MD 20772 Phone: 301 967 4596 Email: spantoja@iamaw.org Philip von Schöppenthau, Secretary General European Cockpit Association Rue du Commerce 20 22 B 1000 Brussels, Belgium Phone: 32 2 705 3293 Email: pvs@eurocockpit.be Dated: February 26, 2016
BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, DC ) Application of ) ) Docket No. OST 2015 0261 NORWEGIAN AIR UK LIMITED ) ) for an exemption under 49 U.S.C. 40109 ) and a foreign air carrier permit pursuant to ) 49 U.S.C. 41301 ) ) COMMENTS OF LABOR PARTIES ON U.K. GOVERNMENT DOCUMENTS The U.K. Department for Transport ( DFT ) has sent a letter dated February 11, 2016 to Assistant Secretary for Aviation and International Affairs, Susan Kurland, stating DFT s support for the application of Norwegian Air UK ( NAUK ) for an exemption and a foreign air carrier permit and urging DOT to grant NAUK authorization to operate forthwith. Docket OST 2015 026 0020 ( DFT Letter ). The DFT Letter and the documents attached thereto a January 27, 2016 diplomatic note from the British Embassy to the Department of State ( Diplomatic Note ) and a February 4, 2016 summary of NAUK s employment arrangements prepared by the U.K. Civil Aviation Authority ( CAA Summary ) contain several assertions about the employment structure that will apply to the pilots and flight attendants who will work
on board the aircraft NAUK will use on its flights to the U.S. 1 The Labor Parties appreciate DFT submitting this information to the record. However, we believe that some of the assertions made in the U.K. Government Documents are not accurate or complete and further believe that some of the assertions demonstrate why either NAUK should voluntarily describe its employment structure for pilots and flight attendants in the record or DOT should require NAUK to respond to the information requests that accompany the Labor Parties December 28, 2015 Joint Answer to NAUK s application. DISCUSSION 1. A Request For Information About NAUK s Employment Structure Would Be Consistent With The Terms Of The U.S. EU Air Transport Agreement. The Diplomatic Note asserts that detailed information relating to a carrier s employment practices is not required to be submitted as part of an application for operating authorization and that its absence should not be used as a reason to not approve the application in a timely manner. (Diplomatic Note 5). The Labor Parties agree that DOT s regulations do not require detailed employment information to be submitted with an application for an exemption or foreign air carrier permit. In most cases there is no need for such information to be submitted. However, in cases such as this one, where significant questions have been raised in DOT proceedings with respect 1 The DFT Letter, the Diplomatic Note and the CAA Summary will be referred to collectively as the U.K. Government Documents. The Labor Parties were not served with these documents; they were posted to the docket on February 16. 2
to the employment practices of NAUK s sister company NAI, submission of such information is appropriate indeed essential to ensure that any grant of operating authorization is consistent with the U.S. EU Air Transport Agreement ( ATA or Agreement). Article 4 of the ATA states that in order to be entitled to an operating authorization an applicant must meet the conditions prescribed under the laws and regulations normally applied to the operation of international air transportation by the Party considering the application. 2 Operation in a manner consistent with the terms of an air services agreement is a condition for authorizations that is normally applied by the U.S. In addition, grants of exemptions must be determined to be necessary and consistent with the public interest. 49 U.S.C. 40109(c). The U.K. Government Documents do not mention these requirements. Nor do they mention Article 17 bis the provision of the ATA that is central here. Article 17 bis is a provision that is unique among air service agreements and designed to deter the use of opportunities under the Agreement to undermine labor standards. 3 Article 17 bis 2 The DFT Letter argues that the U.S. is obliged under Article 6 bis of the Agreement to recognize the U.K. CAA s determination of NAUK s fitness. (DFT Letter at 2). Article 6 bis, however, is not at issue here because consistency of NAUK s employment model with the terms of the ATA is not part of the fitness determination made by the U.K. CAA. 3 See December 17, 2013 Answer of ALPA to Application of Norwegian Air International Limited, Docket OST 2013 0204 0002 at 7 13. That Answer is incorporated by reference here. At the time of the completion of the Protocol amending the ATA that included Article 17 bis Commissioner Siim Kallas had this to say: For the first time in 3
also states that principles set forth in the Article shall guide the Parties as they implement the Agreement. Consideration of an application for operating authorizations is an action implementing the Agreement. These provisions provide the basis for requesting additional information about the employment framework that will be applied by an EU air carrier seeking operating authorizations from DOT. As we show below, such information should be requested from NAUK. 2. The Department Should Seek Additional Information From NAUK About The Employment Framework That Will Be Applied To The Aircrew Who Will Operate NAUK s Services To The U.S. NAUK s sister company, the Irish carrier Norwegian Air International ( NAI ), has also applied to DOT for operating authorizations. Docket OST 2013 0204. The record in that proceeding shows that NAI s (and NAUK s) parent company Norwegian Air Shuttle ( NAS ) used an opportunity created by the Agreement i.e., the opportunity to create a subsidiary in another European country covered by the ATA to avoid the application of Norwegian labor laws to its pilots and flight attendants. The record further shows that NAI intended to use pilot and flight attendants who are employed under contracts governed by laws of non EU countries aviation history, the agreement includes a dedicated article on the social dimension of the EU US aviation relations. This will not only ensure that the existing legal rights of airline employees are preserved, but that the implementation of the agreement contributes to high labour standards. Press release, Breakthrough in EU US second stage Open Skies negotiations: Vice President Kallas welcomes draft agreement, at 2 (March 25, 2010) (Attachment A, emphasis in original). 4
and that the employment relationships that would govern its aircrew would undermine labor standards in Norwegian and U.S. law. NAUK itself has not submitted any information in this docket about how pilots and flight attendants who will staff NAUK s services to the U.S. will be employed. Given the record in the NAI docket and here, DOT should require NAUK to describe the employment conditions that will apply to these individuals. The U.K. Government Documents provide some information about the employment circumstances of the NAUK aircrew. We appreciate the effort that the U.K. Government has made to gather and submit this information. The U.K. Government Documents also make a number of assertions about the employment circumstances at NAUK that, if true, would help address the concerns of the Labor Parties. Some of the assertions, however, appear to be inaccurate, incomplete or misleading. For example, the documents assert that NAUK s aircrew hold permanent U.K. employment contracts with [the U.K. employment agency] OSM (CAA Summary 5); that the majority of NAUK s aircrew are employed through OSM (id.); that NAUK s aircrew are based at London Gatwick (id.); that OSM has a recognition agreement in place with the British Airline Pilots Association in relation to the staff employed in the 5
UK by NUK 4 (id. 7); and that [i]n a nutshell, NUK crew are employed by an agency in the UK, with a recognition agreement in place between employers and union. (DFT Letter at 2, bottom para.). 5 The Labor Parties understanding is that not all NAUK crew will hold contracts with OSM and not all of them will have permanent contracts. While the hiring process is still in its early stages, many pilots are being offered contracts by Global Crew UK Limited, which will have three year terms and be subject to termination on thirty days notice by Global Crew. (Attachment B 4 and 9.1). It is not clear that all the aircrew will be based at Gatwick. The Global Crew contract that is being offered defines Base as London Gatwick, West Sussex, UK, or such other location specified by Employer on two months notice. (Id. 1.1). A July 2015 communication from OSM to prospective pilots indicated that pilots would be offered a choice of a Gatwick or a Bangkok, Thailand base. (Attachment C). The Labor Parties do not know if this offer is still valid or if it would apply to pilots flying for NAUK. 4 The U.K. Government Documents use the abbreviation NUK for the applicant; the Labor Parties have used NAUK in this proceeding. 5 The CAA Summary also claims that the majority of international carriers employ at least some of their crew through a supply agency (CAA Summary 3); that the terms and conditions of OSM s employees seem to be about average for the industry (id. 5); and that the NAUK employment model is beneficial to staff (id. 3). CAA provides no information to support any of these contentions. 6
It is also not accurate to suggest that all the aircrew who will operate NAUK s aircraft will be covered by a recognition agreement with a union. While the pilots who will be employed by OSM UK and based at Gatwick are covered by a recognition agreement between OSM and BALPA, there is no recognition agreement in place for pilots who will be employed by Global Crew, and that may be a significant portion of the pilot group. Similarly, we understand that NAUK has not responded to a request for recognition of a bargaining representative for the flight attendants who will staff NAUK s long haul services. The assertions set out in the U.K. Government Documents that the aircrew will (1) be based in the U.K., (2) be employed on contracts with a U.K. company that will be governed by U.K. employment and social security laws, and (3) have the right to choose a representative for collective bargaining purposes, lay out the core elements of an employment framework that could well address the Labor Parties concerns. But the discrepancies between these assertions and what appear to be the actual circumstances applicable to the employment of NAUK s aircrew show why it must be NAUK and/or its parent NAS that states on the record what the employment structure will be for the pilots and flight attendants who will work on board the aircraft that NAUK uses in any services to the U.S. The Department should have NAS/NAUK s commitment that the assertions are accurate. 7
8 CONCLUSION Fortheforegoingreasons,DOTshouldrequireNAUKtorespondtothe InformationRequestsattachedtotheDecember28,2015JointAnsweroftheLabor Parties. Respectfullysubmitted, /s/edwardwytkind EdwardWytkind,President TransportationTradesDepartment, AFLCIO 815 16thStreetNW Washington,DC20006 Phone:2026289262 Email:edw@ttd.org RussellBailey AirLinePilotsAssociation 1625MassachusettsAvenueNW Washington,DC20036 Phone:2027974086 Email:Russell.Bailey@alpa.org /s/saranelson SaraNelson,President AssociationofFlightAttendantsCWA 5013rdStreetNW,10thFloor Washington,DC20001 Phone:2024340574 Email:snelson@afacwa.org /s/alexgarcia AlexGarcia,SecretaryTreasurerandAir TransportDivisionDirector TransportWorkersUnionofAmerica AFLCIO 5013rdSt.NW9thFloor Washington,DC20001 Phone:202.719.3870 Email:agarcia@twu.org
/s/ Sito Pantoja Sito Pantoja, General Vice President International Association of Machinists and Aerospace Workers 9000 Machinists Place Upper Marlboro, MD 20772 Phone: 301 967 4596 Email: spantoja@iamaw.org /s/ Philip Von Schöppenthau Philip Von Schöppenthau, Secretary General European Cockpit Association Rue du Commerce 20 22 B 1000 Brussels Belgium Phone: 32 2 705 3293 Email: pvs@eurocockpit.be Dated: February 26, 2016 9
CERTIFICATEOFSERVICE Icertifythatonthis26thdayofFebruary,2016,Ihavecausedtobeservedthe foregoingcommentsoflaborpartiesonu.k.governmentdocumentsbyelectronic mailtotheaddressesidentifiedbelow: romanow@pillsburylaw.com steve.morrissey@united.com dan.weiss@united.com chris.walker@delta.com robert.wirick@aa.com howard.kass@aa.com rpommer@atlasair.com anita.mosner@hklaw.com jennifer.nowak@hklaw.com nssparks@fedex.com cefelts@fedex.com john.allen@faa.gov englets@state.gov cristinasa@state.gov gareth.alston@fco.gov.uk david.batchelor@sesarju.eu patricia.hayes@dft.gsi.gov.uk henrik.hololei@ec.europa.eu deniz.bayraktutar@ec.europa.eu vegard.einan@parat.com efisaacson@jamhoff.com dberg@airlines.org oherrnstadt@iamaw.org sschembs@afanet.org bdanaher@twu.org RussellBailey 10
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ATTACHMENT C