Regulatory Update: Maintaining High Safety and Labor Standards

By ALPA Staff

As the airline industry recovers from the pandemic, ALPA continues to press regulators to maintain high safety and labor standards for the U.S. airline workforce while monitoring and acting on efforts that could weaken hard-won gains of recent years. The following are among several issues the Association is addressing.

Mandated Secondary Barriers

After nearly two decades of extensive lobbying by ALPA and other aviation safety advocates, the FAA finally announced in late July 2022 a proposed rule mandating that all newly manufactured Part 121 passenger airliners include secondary flight deck barriers. The agency is currently entertaining comments from the public, and the specific requirement as proposed will go into effect two years after the rule’s presumed approval.

Within months of the Sept. 11, 2001, terrorist attacks, the FAA announced a new regulation requiring that flight deck doors be reinforced. However, as a stand-alone security measure, this solution was incomplete. ALPA recommended a complementary measure—requiring the use of a lightweight security device known as a secondary barrier that would create a physical barricade to prevent hostile individuals from rushing the flight deck any time the flight deck door is open during flight.

In September 2013, Congress introduced the Saracini Aviation Safety Act, named for Capt. Victor Saracini, the pilot of United Airlines Flight 175 that was hijacked on 9/11. This legislation and subsequent versions called for mandatory secondary barriers, but they never gained the support they needed.

With the passing of the FAA Reauthorization Act of 2018, the FAA was mandated to issue a rule within one year requiring that all new passenger aircraft include this added layer of security. However, no action has been taken until now. ALPA continues to press Congress to require existing passenger airline fleets be retrofitted with secondary barriers and to address the glaring flight deck security disparities that exist between passenger and all-cargo aircraft.

Wizz Air

In January, Wizz Air Hungary, Ltd., a European ultra-low-cost airline, applied to the Department of Transportation (DOT) for a foreign air carrier permit to operate to and from the United States, beginning with cargo charters. This airline has a zero-tolerance policy for unions—assaulting them through public warnings, terminating employees for attempting to organize, and refusing to comply with court orders to reinstate such unlawfully terminated employees. The effect of this toxic culture is to undermine flight safety by targeting “bad apples” who refuse to fly overtime, or when fatigued, sick, or on their days off.

ALPA highlighted these points to the DOT, evidenced by anonymous complaints from Wizz pilots to the European Cockpit Association, which supported ALPA’s pleading. The Transportation Trades Department of the AFL-CIO, the International Association of Machinists and Aerospace Workers, and the Transport Workers Union of America bolstered ALPA’s case by pointing out that Wizz employees effectively can’t join unions, and basic norms regarding the freedom of association don’t apply, as manifested by a culture of intimidation and reprisal for union activists and employment leased-crew arrangements structured to frustrate organizing of direct-hire employees.

ALPA, along with the AFL-CIO, the European Cockpit Association, the Allied Pilots Association, the Independent Pilots Association, and the Southwest Airlines Pilots Association, raised substantial and specific concerns about the airline, its business model, and the ability of European safety regulators—specifically the European Union Aviation Safety Agency (EASA)—to provide oversight and surveillance of the carrier. The Association asked the DOT, as provided under the U.S.-EU Air Transport Agreement, to seek consultations with European authorities regarding Wizz’s safety and its so-called “compliance disposition”—an assessment of the company’s adherence to laws, rules, and regulations.

In July, the DOT dismissed Wizz’s application based on the FAA’s concerns as to whether the safety oversight of Wizz Air by EASA and Hungarian aviation safety authorities is sufficient to support an award of DOT authority. However, the DOT’s rejection is “without prejudice,” meaning that the carrier can refile if it chooses, but the FAA plans to seek additional information on the nature of the safety oversight arrangement between EASA and the Hungarian civil aviation authority, and that information will have a bearing on any future application. ALPA applauds the DOT and the FAA for hearing the voice of this coalition of airline labor, understanding the risks of insufficient foreign safety oversight, and using the mechanisms available under the U.S.-EU Air Transport Agreement.

Delta-LATAM Joint Venture

Since the advent of fully integrated, metal-neutral, antitrust-immunized joint ventures (JVs), ALPA has supported JVs but has also advocated for a fair allocation of JV flying to U.S. pilots. A JV is typically an alliance between a U.S. and a foreign airline in which the carriers coordinate prices and schedules for a defined international geographic area and share revenues or profits from those routes. As a result, JVs require immunity from the antitrust/competition regulations that U.S. law authorizes the DOT to grant. The ability to share networks fills passenger seats and generates more revenue and more flying, while sharing revenue or profit with a JV partner incentivizes network growth—especially where one carrier couldn’t profitably operate without the other’s strength. However, without proper contractual or regulatory safeguards, JVs can risk shifting flying to the foreign partner, especially if one partner holds an equity investment in another.

In June, the DOT tentatively approved the application by Delta Air Lines and LATAM Airlines Group S.A., a Latin American airline group, for an antitrust-immunized JV. The DOT tentatively decided, however, to direct the carriers to remove a capacity growth clause from the JV. This growth clause requires an equitable distribution of long-haul flying and helps to safeguard U.S. pilots’ fair share of flying growth, in addition to the scope provisions in the pilots’ collective bargaining agreement. By contrast, the DOT viewed the provision as a “capacity constraint” clause that, by restraining the foreign carrier’s growth, could harm competition.

In response to the DOT’s tentative order, the Delta Master Executive Council, ALPA, and the AFL-CIO argued against removing the provision, which benefits U.S. airline labor, as contrary to the public interest, to DOT precedent, to the U.S. government’s Open Skies policy, and inconsistent with the Biden administration’s formal labor policy. The case was pending as this issue of Air Line Pilot went to press.

As U.S. airlines are likely to create antitrust-immunized JVs with more carriers in regions in which wage and work-rule disparities with the United States are substantial, the DOT’s decision could create an important precedent on ensuring that U.S. pilots are treated equitably in such arrangements. The Association will continue to remain vigilant that the interests of U.S. pilots be of paramount importance in JVs as the DOT evaluates labor’s collective opposition regarding the removal of this safeguard provision.

Visas

As air travel continues to rebound from the pandemic, U.S. carriers are attempting to hire foreign pilots through misuse of U.S. visa programs to avoid natural market pressures to pay pilots appropriately for their in-demand skills.

Prior to the pandemic, market pressures began to force U.S. regional carriers to increase pilot pay rates for the first time in a decade. Rather than cooperate with the laws of supply and demand, some U.S. carriers began to misuse E-3 visas to hire Australian nationals for U.S. pilot jobs. U.S. carriers went from not seeking any E-3 visas in 2014 to seeking more than 1,000 E-3 certifications for pilot positions in 2018 alone. In 2019, with the onset of the pandemic and the consequent freeze on hiring, visa misuse stopped. However, with the resumption of air travel, airlines are once again using an ever-growing set of visa programs while tying such abuses to a fictitious “pilot shortage.”

When visa misuse started, regional airlines began sponsoring foreign nationals for E-3 and H-1B (temporary employment permission in the U.S. that’s subject to a formal cap) visas for jobs in so-called “specialty occupations.” This designation legally requires the occupation to need a bachelor’s degree or related educational requirements as a threshold prerequisite to employment. The government has repeatedly said the piloting profession doesn’t meet these standards and, as such, isn’t a specialty occupation. But poor enforcement of this standard has allowed for the growth and abuse of these visa programs in the piloting profession. In fact, visa abuse is beginning to migrate to larger airlines, including Spirit and Frontier, which have either used or advertised the use of specialty occupation visas as they contend with attrition issues.

ALPA has been in contact with various governmental agencies, including the White House, to curb this attempt by airlines to sidestep the intent and letter of U.S. visa laws.

This article was originally published in the September 2022 issue of Air Line Pilot.

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