BEFORE THE
U.S. DEPARTMENT OF TRANSPORTATION
WASHINGTON, DC
Application of
Docket No. OST‐2013‐0204
NORWEGIAN AIR INTERNATIONAL
LIMITED
for an exemption under 49 U.S.C. § 40109
and a foreign air carrier permit pursuant to
49 U.S.C. § 41301 (US‐EU Open Skies)
JOINT ANSWER OF AIR LINE PILOTS ASSOCIATION, TRANSPORTATION
TRADES DEPARTMENT, AFL‐CIO, EUROPEAN COCKPIT ASSOCIATION,
ASSOCIATION OF FLIGHT ATTENDANTS‐CWA, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AND
TRANSPORT WORKERS UNION OF AMERICA TO MOTION FOR EXPEDITED
TREATMENT BY NORWEGIAN AIR INTERNATIONAL LIMITED
Edward Wytkind, President
Transportation Trades Department,
AFL‐CIO
815 – 16th Street NW
Washington, DC 20006
Phone: 202‐628‐9262
Fax: 202‐628‐0391
edw@ttd.org
Jonathan A. Cohen
Russell Bailey
David M. Semanchik
Air Line Pilots Association
1625 Massachusetts Avenue NW
Washington, DC 20036
Phone: 202‐797‐4086
Fax: 202‐797‐4014
Jonathan.Cohen@alpa.org
Russell.Bailey@alpa.org
David.Semanchik@alpa.org
Philip von Schöppenthau,
Secretary General
European Cockpit Association
Rue du Commerce 20‐22
B‐1000 Brussels, Belgium
Phone: 32‐2‐705‐3293
Fax: 32‐2‐705‐0877
pvs@eurocockpit.be
Sara Nelson, International President
Association of Flight Attendants‐CWA
501 3rd Street NW
Washington, DC 20001
Phone: 202‐434‐0574
Fax: 202‐434‐1319
snelson@cwa‐union.org
Sito Pantoja, General Vice President
International Association of Machinists
and Aerospace Workers
9000 Machinists Place
Upper Marlboro, MD 20772
Phone: 301‐967‐4514
Fax: 301‐967‐4591
spantoja@iamaw.org
Harry Lombardo, President
Transport Workers Union of America
501 3rd Street NW, 9th Floor
Washington, DC 20001
Phone: 202‐719‐3900
Fax: 202‐719‐3828
Dated: June 10, 2015
BEFORE THE
U.S. DEPARTMENT OF TRANSPORTATION
WASHINGTON, DC
Application of
Docket No. OST‐2013‐0204
NORWEGIAN AIR INTERNATIONAL
LIMITED
for an exemption under 49 U.S.C. § 40109
and a foreign air carrier permit pursuant to
49 U.S.C. § 41301 (US‐EU Open Skies) )
JOINT ANSWER OF AIR LINE PILOTS ASSOCIATION, TRANSPORTATION
TRADES DEPARTMENT, AFL‐CIO, EUROPEAN COCKPIT ASSOCIATION,
ASSOCIATION OF FLIGHT ATTENDANTS‐CWA, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AND
TRANSPORT WORKERS UNION OF AMERICA TO MOTION FOR EXPEDITED
TREATMENT BY NORWEGIAN AIR INTERNATIONAL LIMITED
The Air Line Pilots Association, the Transportation Trades Department, AFL‐CIO
and the European Cockpit Association1 hereby submit this Answer to the motion of
Norwegian Air International Limited (“NAI”) for expedited treatment. Attached to the
motion is a letter from Bjorn Kjos, the CEO of Norwegian Air Shuttle (“NAS”), NAI’s
parent company, in which Mr. Kjos purports to make two commitments and suggests
that these commitments provide the basis for DOT to approve NAI’s application for a
foreign air carrier permit. As we will show, the alleged “commitments” are without
substance, certainly with respect to pilots, and serve to further demonstrate why
approval of NAI’s application would be at odds with Article 17 bis of the U.S.‐EU Air
Transport Agreement. For all the reasons previously identified by opponents to NAI’s
application2 and because, as shown below, the new alleged “commitments” change
nothing, the Department should deny NAI’s application. However, if the Department
believes that additional information is necessary to make a determination in this
proceeding it should issue information requests to Norwegian3 to obtain that
information or hold a hearing at which representatives of Norwegian may be examined
about the founding and structure of NAI, including the compensation and laws that
will apply to NAI’s air crew.
DISCUSSION OF THE MOTION
The first “commitment” is that NAI will “use only European and U.S. pilots and
crews on NAI transatlantic flights.” Letter at 1. With respect to pilots, this is no
commitment at all. The citizenship of pilots has never been at issue in this case. From
the inception of its existing transatlantic services, Norwegian has used pilots with EU3
passports and EU pilot licenses. What is at issue are the laws and the terms and
conditions of employment that apply to NAI’s pilots and flight attendants and the
“commitment” makes no statement about that. The pilots continue to be employed by
Global Crew Asia PTE Limited, a Singapore hiring company, on fixed‐term individual
employment contracts with total compensation and labor protections substantially
inferior to pilots employed by Norwegian. See Declaration of Jack Netskar (“Netskar
Dec.”) ¶¶ 15‐22 (filed with ALPA’s Answer dated Dec. 17, 2013 (Doc. No. ‐0002)).
The flight attendants have been employed in a like manner. They continue to be
employed by an external hiring company on fixed‐term contracts. The laws, terms, and
conditions of employment that apply to them are unclear. Such laws, terms, and
conditions have been the core concern of the Labor Parties with NAI from the outset.
The second “commitment” is that NAS will offer NAI pilots and cabin crew “the
opportunity to transfer their employment to a company in the Norwegian Group at the
end of [a 24 to 36 month] transitional period.” This would be in keeping with NAS’ socalled
“firm policy” with respect to flight crew whose services it utilizes but who are
initially employed at employment agencies. Letter at 2.
This “commitment,” which is not even mentioned in the motion, does not
withstand scrutiny. To our knowledge, NAS’ firm policy does not appear in any
company handbook. Declaration of François Ballestero (“ETF Dec.”) ¶ 9 (attached
hereto). Nor does it appear in the company’s intranet. Id. Nor is it publicly available
through established company channels. Id. Nor does it appear in the individual
employment contracts of the Singapore‐contract pilots who operate long‐haul services
on behalf of NAS and NAI. Netskar Dec. Attachment A. And, to our knowledge, no
agency‐hired pilot or flight attendant who has worked on board a Norwegian 787 has
been hired by another Norwegian Group company.
The other “compan[ies] in the Norwegian Group” to which Mr. Kjos refers are
purely staffing company subsidiaries: essentially, the equivalent of wholly‐owned
employment agencies. Netskar Dec. ¶14. The employment terms and conditions
offered by these internal employment agencies are not comparable to those of pilots
employed by Norwegian under Norway’s laws. ETF Dec. ¶¶ 3‐6. Moreover, the
alleged “firm policy” to transfer pilots from agencies to the Norwegian Group
companies has not been respected by Norwegian in the past. Rather, NAS’ actions
show that such a policy is frequently honored only in the breach. Id. ¶ 8. In addition,
the percentage of unionized pilots at NAS has dropped from over 90 percent to less
than 50 percent in the last 4 years. Id. ¶ 10; Parat Answer to DOT Notice, dated Feb. 13,
2014 (“Parat Answer”) ¶ 4 and Appendix 2 (Doc. No. ‐0031). NAI has failed even to
address, much less contest, this evidence.
Mr. Kjos’ alleged “commitments” are the latest ‐‐ but not the only ‐‐ attempt by
NAI to shift the focus of the Department to inapposite or misleading matters
throughout this proceeding. NAI asserted that traffic rights to non‐U.S. destinations,
and access to better financing and insurance under OECD rules and the Cape Town
Convention, were the reasons NAS established NAI outside of Norway. The opponents
to the application showed why this assertion appears to be untrue.4 NAI has also
asserted that Norwegian has no tradition of discouraging unionization; ALPA, TTD,
ECA, and the Norwegian union Parat demonstrated how Norwegian’s actions belie
such alleged friendliness to labor.5 NAI has asserted that the individual employment
contracts were governed by the law of Thailand, the country of the pilot base; ALPA,
TTD and ECA showed how this could not possibly be true because Singapore law
applied.6 NAI also asserted that the Singapore‐contract pilots’ “dollarized average
gross payments” (an undefined term) were on par with those of Norwegian pilots;
ALPA illustrated that this opaque term hid the tax and social costs for which a
Singapore‐contract pilot, but not a Norwegian pilot, would be responsible.7
In short, none of the previous explanations or assertions hold up to scrutiny.
Neither do the alleged “commitments.”
The asserted facts in the record compel an adverse decision by DOT. As we
argued before, NAI’s application continues to “undermine the labor standards or the
labor‐related rights and principles” of Norway and the United States. See ALPA
Answer to Application of NAI, dated Dec. 17, 2013 at 2 (Doc. No. ‐0002); U.S.‐EU
agreement, Article 17 bis.
Given that the alleged “commitments” change nothing, DOT should issue a
show cause order stating that it proposes to deny NAI’s application for a foreign air
carrier permit. If the Department believes that it would benefit from having more
information before it issues such an order, including information about Mr. Kjos’
alleged “commitments,” it should issue document production requests, and/or should
hold a hearing at which representatives of Norwegian may be examined about the
founding and structure of NAI, including the compensation and laws that will apply to
NAI’s air crew. See Joint Reply of ALPA, TTD and ECA, dated Aug. 25, 2014 (Doc.
No. ‐0161).
CONCLUSION
For the foregoing reasons, as well as those in our earlier pleadings in this
proceeding, the Department should deny the motion for expedited treatment, and issue
a show cause order proposing to deny the permit application.
Respectfully submitted,
__________________________________
s/ Jonathan A. Cohen
Russell Bailey
David M. Semanchik
Air Line Pilots Association
1625 Massachusetts Avenue NW
Washington, DC 20036
Phone: 202‐797‐4086
Jonathan.Cohen@alpa.org
Russell.Bailey@alpa.org
David.Semanchik@alpa.org
s/ Edward Wytkind __
Edward Wytkind, President
Transportation Trades Department,
AFL‐CIO
815 – 16th Street NW
Washington, DC 20006
Phone: 202‐628‐9262
edw@ttd.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
pvs@eurocockpit.be
/s/ Sara Nelson _________
Sara Nelson, International President
Association of Flight Attendants‐CWA
501 3rd Street NW, 10th Floor
Washington, DC 20001
Phone: 202‐434‐0574
Fax: 202‐434‐1319
snelson@cwa‐union.org
/s/ Sito Pantoja____________________
Sito Pantoja, General Vice President
International Association of Machinists
and Aerospace Workers
9000 Machinists Place
Upper Marlboro, MD 20772
Phone: 301‐967‐4514
Fax: 301‐967‐4591
spantoja@iamaw.org
/s/ Harry Lombardo__________
Harry Lombardo, President
Transport Workers Union of America
401 3rd Street NW, 9th Floor
Washington, DC 20001
Phone: 202‐719‐3900
Fax: 202‐719‐3828
Dated: June 10, 2015
CERTIFICATE OF SERVICE
I certify that I have, on this 10th day of June, 2015, served the foregoing Joint
Answer by causing a copy to be sent by electronic mail or fax as identified below:
The Honorable Penny Pritzker
Secretary of Commerce
TheSec@DOC.gov
NovelliCA@state.gov
Amb. Anne Anderson
norma.ces@dfa.ie
Amb. David O’Sullivan
fiona.kitson@eeas.europa.eu
kathryn.thomson@dot.gov
Violeta.Bulc@ec.europa.eu
Margus.Rahuoja@ec.europa.eu
romanow@pillsburylaw.com
peter.nelson@pillsburylaw.com
steve.morrissey@united.com
dan.weiss@united.com
sascha.vanderbellen@delta.com
howard.kass@usairways.com
robert.wirick@aa.com
sschembs@cwa‐union.org
john.hanlon@elfaa.com
dberg@airlines.org
jcasey@airlines.org
kglatz@airlines.org
clytle@portoakland.com
kgeorge@broward.org
michael.whitaker@faa.gov
jesse.elliot@faa.gov
john.chen@faa.gov
nicholas.tsokris@faa.gov
john.allen@faa.gov
EngleTS@state.gov
NewsomeRC@state.gov
mrichardson@swapa.org
ejames@jamhoff.com
eugene.alford@trade.gov
david.batchelor@sesarju.eu
ottar.ostnes@sd.dep.no
paul.gretch@dot.gov
robert.finamore@dot.gov
nssparks@fedex.com
dpdean@jamhoff.com
vegard.einan@parat.com
thore.selstad.halvorsen@parat.com
minister@dttas.ie
Via Fax
The Honorable John F. Kerry
Secretary of State
Fax: 202‐647‐1579
__________________________________
ATTACHMENT
BEFORE THE
U.S. DEPARTMENT OF TRANSPORTATION
WASHINGTON, DC
Application of
Docket No. OST-2013-0204
NORWEGIAN AIR INTERNATIONAL
LIMITED
for an exemption under 49 U.S.C. § 40109
and a foreign air carrier permit pursuant to
49 U.S.C. § 41301 (US-EU Open Skies)
DECLARATION OF FRANÇOIS BALLESTERO, POLITICAL SECRETARY FOR
CIVIL AVIATION OF THE EUROPEAN TRANSPORT WORKERS FEDERATION
(ETF), IN SUPPORT OF JOINT ANSWER
OF AIR LINE PILOTS ASSOCIATION, TRANSPORTATION TRADES
DEPARTMENT, AFL-CIO, AND THE EUROPEAN COCKPIT ASSOCIATION, TO
MOTION FOR EXPEDITED TREATMENT BY NORWEGIAN AIR
INTERNATIONAL LIMITED (NAI)
1. My name is François Ballestero. I am the Political Secretary for Civil
Aviation of ETF. The ETF represents more than 2000 pilots and cabin crew in
Norwegian, thru our affiliate Parat, based in Norway.
2. The following responds to Mr. Bjorn Kjos’ letter filed by Norwegian Air
International (NAI) with DOT.
3. As a general rule, pilots hired through an agency have inferior job
protection than pilots employed directly, and permanently, with a Norwegian
company. This is especially true with regard to lay-offs, where hired personnel in most
European countries are considered “temporary workers” and will therefore be laid off
before permanent employees, regardless of seniority or time of service. In addition, the
temporary contracts we have seen typically describe a significantly shorter notice
period (only 30 days) compared to most national laws which typically describes notice
periods of 3 months and up.
4. Also, we can mention that while some of the temporary contracts offered
by agencies providing pilots for Norwegian describe a 60-day notice period for base
changes, numerous pilots have reported that instead of the 60-day notice period, they
receive a cancellation of their current contract and their current base with a 30-day
termination notice, only to receive a new contract and base assignment, often in the
same email, thus repeatedly circumventing the contractually agreed upon 60-days base
change notice.
5. Agency-employed pilots are also reporting problems being accepted into
their base-country’s social security systems due to the number of countries involved in
their employment. For example, pilots may be hired by an agency located in one
country, employed by an agency who rents them to Norwegian, which is based in
Norway, and based in a third country, such as Spain.
6. To our knowledge, agency-pilots are not enrolled in any pension scheme.
Most European countries require a mandatory pension schemes for employees of a
company, while agency-pilots fall outside of the laws because of their “temporary”
status.
7. It is our impression that Norwegian, once again is playing with words due
to their new and very complex corporate structure. For example, the pilots at the
Helsinki base in Finland, along with a small group of pilots based in Spain, have been
offered “employment” in a “company in the Norwegian Group.” The reality is that,
while technically employed by a Norwegian company, all employee-related functions,
including human resources functions, have been outsourced back to the same agencies
through which the pilots were hired (Proffice Aviation and OSM, respectively).
8. We also wish to address Mr. Kjos’ statement in his letter about a
“transitional period” for pilots to move from an employment agency to a company
within the Norwegian Group. The 24-36 month “transitional period” is a result of hard
negotiations with the Norwegian Pilot Union (NPU) which represents Scandinaviabased
short haul pilots. The agreement describes a maximum period of 24 months for
the contract pilots before being hired by Norwegian. The additional 12 months were
agreed upon for the sole purpose of closing down a base, which after 24 months of
service proves not to be economically viable. We have consistently experienced that
Norwegian has exceeded the 24-month “transitional period” without any intention to
close down the base and has continued to employ agency-pilots. In the case of Helsinki,
more than 40 months passed before pilots were offered employment in one of the
Norwegian Group companies, a clear breach of the employment agreement.
9. We do not possess any information indicating the long-haul pilots have
been informed of this so-called “transitional period” agreement with the NPU.
Furthermore, it is our clear understanding that neither this agreement with NPU, nor
any company policy, is publicly known. Nor is it included in any company policy
handbook. Nor is it available through established company channels. Nor can it be
found on the Norwegian Group intranet. Nor does it appear, according to our
understanding, in any individual employment contracts signed by the long-haul pilots.
In addition, in an attempt to pursue the policies stated in the employment agreement,
the Spain-based pilots have organized themselves under SEPLA, the Spanish pilots’
union, and have made repeated attempts to engage Norwegian, or representatives of
Norwegian, for the purpose of constructive talks. For the past six months, these
repeated attempts have been completely ignored by Norwegian. As a reply to these
efforts made by pilot representatives, Norwegian has stated that it does not have any
pilots in Spain, but OSM does. What Norwegian apparently means by this is that OSM,
the local hiring agency for the Spanish pilots, is the employer.
10. Lastly, we want to reiterate a point that our affiliate Parat made in their
earlier filing to the DOT about the state of unionization among pilots at Norwegian. In
that filing, Parat stated, “Norwegian Air Shuttle and its affiliate companies have gone
from having about 96% organized pilots just a few years ago to having about 48% at the
moment. The rate of unionized pilots is dropping at an accelerated pace. The Company
is actively working to make it harder for the unions, as they have taken direct action to
split up and weaken unions, to offer individual contracts to pilots and to move and split
up the company in any affiliates.” Answer of Parat to DOT Notice, 5. This state of
affairs has gotten worse, not better, since our earlier filing.
I declare under the penalty of perjury under the laws of the United States that the
foregoing is true and correct to the best of my belief.
François Ballestero
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