U.S. DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
WIZZ AIR HUNGARY, LTD.
for a foreign air carrier permit pursuant
to 49 U.S.C. § 41301 (U.S.-EU Open Skies) )
ANSWER OF THE
TRANSPORTATION TRADES DEPARTMENT, AFL-CIO, THE AFL-CIO, THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS AND
THE TRANSPORT WORKERS UNION OF AMERICA
TO CONSOLIDATED REPLY AND CONTINGENT MOTION TO AMEND APPLICATION OF WIZZ AIR HUNGARY, LTD.
The Transportation Trades Department, AFL‐CIO (“TTD”), AFL-CIO, the International Association of Machinists and Aerospace Workers (IAM) and the Transport Workers Union of America (TWU), hereby submit this Answer to the Consolidated Reply of Wizz Air Hungary, Ltd. (Wizz), including its motion for an exemption, and supports the Response of the Air Line Pilots Association, International (ALPA) and Association of Flight Attendants, CWA. As we will show, the Consolidated Reply fails to address the concerns raised by ALPA, the European Cockpit Association (ECA), the Allied Pilots Association (APA), the Independent Pilots Association (IPA), and the Southwest Airlines Pilots Association (SWAPA). Collectively, we support the request of these pilot unions and associations for consultations among the Department and its European counterparts.
The gravity of the task before the Department presented by Wizz’s application, including whether it is consistent with the EU-US Open Skies Agreement (“ATA”) and is fit under normally applied U.S. laws and regulations, remain unchanged by the Consolidated Reply. Wizz’s anti-union animus, deficient corporate culture with potential impacts on safety, defiance of numerous court orders with respect to employees, and the novel safety oversight arrangement of its air operating certificate provide “specific reason for concern.” Moreover, in our view, the Department should consider the employment arbitrage enabled by Wizz’s use of leased crew as closely connected to its anti-union animus.
The ATA’s reciprocal recognition provisions allow a party receiving an application from an airline of another party to challenge the submitting party’s fitness and/or citizenship determination of the airline if it presents “specific reasons for concern.” Article 6 bis. Given the ATA’s emphasis on “social effects” and safety standards, these specific reasons for concern are unquestionably legitimate. Therefore, under the ATA, consistent with the statutory public interest, and in support of the submissions of ALPA, AFA, APA, IPA, SWAPA, and ECA, we request the Department seek consultations with the appropriate European aviation authorities under Article 6 bis and Article 8 of the ATA. In the interim, the Department should defer action on the application.
Discussion of the Reply
Wizz begins by asserting that the ATA’s reciprocal recognition procedures effectively require the grant of a foreign air carrier permit “without delay,” but that is wrong. The TTD was present at the creation of the ATA and was concerned about reciprocal recognition. During the Memorandum of Consultations (MOC) that accompanied the 2010 amendment to the ATA, the U.S. – at the request of TTD – proposed, and the EU accepted, text to clarify that the reciprocal recognition procedures “are not intended to modify the conditions prescribed under the laws and regulations normally applied by the Parties to the operation of the international air transportation referred to in Article 4 of the Agreement.” (MOC ¶5). Article 4 of the agreement, in turn, provides, that one Party shall grant appropriate authorizations and permissions to airlines of the other Party provided, among other things, that “the airline is qualified to meet the conditions prescribed under the laws and regulations normally applied to the operation of international air transportation by the Party considering the application. Ex. 14. The “conditions prescribed under the laws and regulations normally applied” include an assessment of a carrier’s fitness by considering its “positive compliance disposition” and “safety problems.” DOT Foreign Air Carrier Information Packet, 5. Any suggestion that Wizz, or any other party, must automatically receive a permit or that the U.S. forfeit the exercise of its normally applied laws and regulations is simply incorrect.
No-Union Culture and Employment Concerns
Wizz is equally dismissive of well-substantiated issues regarding its employment practices and chilling hostility toward the rights of employees to form unions and collectively bargain. Wizz curtly states that the point of issue raised by the pilot labor parties is that its employees “are not unionized.” Whether Wizz has a “non-unionized labor force” is not the concern – many airlines, as Wizz blithely points out – do not feature unions on their property. The issue, rather, is that employees at Wizz effectively cannot join unions and basic norms regarding the freedom of association do not apply, as manifested by a culture of intimidation and reprisal for union activists, employment arrangements structured to preclude employee representational rights, and outright defiance of court orders enjoining their anti-union behavior. Wizz’s “no-union” and anti-employee culture is inconsistent with European values: as ALPA pointed out, at least one national government, Norway, has protested its behavior, another, Italy, has tried to intervene, and an investment fund has divested from the company because of the disregard for “labour rights issues.” (ALPA Answer at 7-8.)
Hostility to the rights of workers to organize and join unions is suffuse through all elements of the company. Wizz’s CEO has said that “we have been keeping out unions everywhere. Unions are killing the business…. If the unions try to catch us and kill us, we simply close the base and move on.” Just prior to filing this application, the CEO strongly suggested to employees that any employee who joins a trade union will be fired.
These chilling words are turned into deeds not just by retaliatory terminations but by a labor model that plays direct employees under individual contracts against “leased” crew through an employment agency, who are paid substantially less, in order to preclude them from unionizing. The “leased” flight attendants and contract pilots are employed via individual employment contracts with Confair, a Dutch crew leasing firm. (ECA Submission, Ex. C.(Confair contract).) These employees work alongside workers employed by Wizz and are subject to the direction and control of Wizz, but their terms of employment are substantially inferior to Wizz pilots given they are “incredibly cheap” and can be dismissed at a moment’s notice. The use of direct and leased crews alongside each other allows Wizz to “whipsaw” one against one another to instill fear, lack or permanency, and prevent the right to organize. While atypical employment models are not uncommon among low-cost carriers in Europe, its use at Wizz, when combined with other behavior, demonstrates extreme anti-union animus by contributing to precarious employment while defeating the ability to exercise the freedom of association.
Possibly the most problematic of Wizz’s unique no-union culture may be its retaliatory terminations of employees and outright hostility to the rule of law for consequent legal sanction, as ALPA thoroughly discussed in the Romanian and Bulgarian cases, in which courts decided that Wizz terminated pilots and flight attendants unlawfully, yet even after appeals had run, Wizz refused to return them to flying duty.
In short, Wizz aircrew who form or join unions are denied these rights, unlawfully terminated, and Wizz uniformly refuses to comply with judicial decisions ordering employee reinstatement.
Scope of Operations
Wizz then proceeds to suggest that the size of its initial operation – that it is “seeking only to operate occasional cargo charter service with a single aircraft” on an “ad hoc” basis – makes Department approval more readily attainable. The basic criteria for evaluating a foreign air carrier application’s merits are the same for sizable operations and modest ones, for charter operations and scheduled ones, and for all-cargo and passenger ones. The Department’s work does not rest on fleet size or the purported modesty of the carrier’s initial application. The criteria, especially the need for a positive compliance disposition, is the same. Further, the Department must consider potential designs for passenger operations. In further pushing a narrative of modesty, Wizz suggests that its single aircraft type fleet is not compatible with transatlantic service, and yet, similar Airbus aircraft operate as such. Additionally, Wizz’s private equity partner – Indigo Partners – has also ordered longer range aircraft to complete such service for the carrier. Furthermore, once the carrier has economic authority for charter cargo operations, it will take a minimal additional showing to receive scheduled passenger authority, as ALPA noted. Thus, Department scrutiny now is appropriate. See, e.g., Order 2010-4-8, Atlas Air, Inc., Dockets DOT-OST-2009-0267 and -0268 (passenger authority for all-cargo carrier). Finally, the Department must investigate the true operational control of the single-airplane cargo charter. The Hungarian government owns, insures, and will pay the airplane’s maintenance for flying COVID missions and “other purposes.” In contrast, Wizz’s application suggests the ad hoc charters would be unrelated to COVID-19-related operations (Reply, 2). If, indeed, the flights are conducted by or for a foreign government without military equipment they may be covered by 49 USC § 41703 and therefore subject to a mandatory public interest finding. The lack of clarity compels Departmental inquiry through consultations. If sufficient information is not provided, the DOT should not authorize them. If Section 41301 remains in use by the carrier, the Department should not submit the matter for Presidential approval under Section 41307.
Wizz counters the well-documented reasons for a potential safety concerns raised by ALPA and ECA by not addressing them. Wizz asserts that under Article 8 of the ATA that the DOT must recognize as valid the certificates of competency and airworthiness as well as licenses – full stop. But publicly available information and court records – in the dismissive words of Wizz, “press clippings” – demonstrate that Wizz’s culture is foundationally built on terminating employees for being “bad apples,” including those pilots and flight attendants who will not fly when sick, pilots who are unwilling to fly beyond their maximum duty day limit, and pilots and flight attendants who will not fly when fatigued. These problems should not be dismissed out of hand. In fact, Article 8 of the ATA, para. 2, provides the U.S. the right to engage in consultations with appropriate European authorities, including EASA, to discuss “the safety standards relating to … aircrews” of Wizz and of “the operation of the airlines overseen by those authorities.” In light of the specific concerns highlighted, the Department should not simply rubber stamp safety determinations about Wizz’s operation. Similarly, Wizz dismisses European pilot reports to EASA as not worthy of consideration. To the contrary, gathering more information on allegations in keeping with public information and court records is precisely why the ATA provides a method – through consultations – to defer action on the application to fully understand Wizz’s safety record and culture.
Wizz then proceeds, through provocative language, to suggest that ALPA’s inquiry into potential coordination and surveillance issues for EASA, given the novelty and difficulty of the regulator’s direct oversight of the carrier, “besmirch[es]” the European civil aviation regulator. But what the Consolidated Reply fails to do is to grapple with appropriate questions. For example, has EASA delegated tasks to local Hungarian and Austrian authorities (as ECA believes) and how is EASA handling its first AOC licensee given the deep-rooted cultural issues reported at the carrier? Wizz’s reply is silent on these matters. If EASA has delegated some tasks or relying on Hungarian or Austrian authorities, coordination by EASA of oversight and surveillance among them may present an added obstacle. The lack of clarity and novel arrangement, when viewed in light of the ample documented problems at Wizz, necessitates consultations between the Department, FAA, European Commission, EASA, and other applicable European parties.
Wizz then asks the Department to absolve itself of any responsibility because “Wizz Air must apply for and obtain Part 129 operations specifications from the FAA” and, if approved “be subject to ongoing FAA inspection and surveillance.” While operational safety is within FAA’s purview, the Department is responsible by statute for evaluating the overall corporate environment with respect to safety in its fitness determination. (49 U.S.C. §40101.) The Department’s authority in matters of safety is unimpeachable and is not restricted to the approval of a carrier’s operations specifications.
Transportation Trades Department, AFL-CIO
Robert Martinez, Jr.
International Association of Machinists and Aerospace Workers
Transport Workers Union of America
Director, Government Affairs
Dated: March 22, 2022
CERTIFICATE OF SERVICE
I hereby certify that I have this 22nd day of March, 2022, caused the foregoing document to be served by email on the following persons:
Applicant: Wizz Air Hungary Ltd. Kamil.Malecki@wizzair.com
Labor Parties: Air Line Pilots Association David.Semanchik@alpa.org
Association of Flight email@example.com
Allied Pilots Association firstname.lastname@example.org
European Cockpit Association email@example.com
Independent Pilots Association firstname.lastname@example.org
Transportation Trades email@example.com
Southwest Airlines Pilots firstname.lastname@example.org
Air Carriers: Alaska email@example.com
Atlas Air firstname.lastname@example.org
FedEx Express email@example.com
Government: DOT firstname.lastname@example.org
European Commission Gzim.OCAKOGLU@eeas.europa.eu
Airline Info: email@example.com