Swoop Blacklist

[Dockjock]

Management will ignore the “ban”. But who would apply, knowing the potential consequences? Putting myself back in those shoes, I sure as heck wouldn’t. Easier to just avoid, and other jet jobs at reputable companies are plentiful.

Could lead to a claim of no qualified applicants and a foreign pilot situation. In any case, can’t wait to buy a ticket :barf:

[Bede]

Just confirmed in my email that ALPA has indeed sent notices to other airline unions to avoid Swoop pilots.

[DropTanks]

Just confirmed in my email that ALPA has indeed sent notices to other airline unions to avoid Swoop pilots.

Touché

[NewCommercialPilot]

Anyone care to guess how the negotiations for a CBA are likely to proceed?

[TheStig]

In one of his speeches this year, (I can’t recall if it was an earnings call, the board of trade talk or some other public appearance, but I do believe it was before either of the pilot groups had unionized) WestJet’s CEO was asked if the ULCC had to use WestJet pilots. His answer at the time was “yes and no”. His interpretation of the pilot contract was that WestJet pilots had to have the opportunity to bid on the ULCC positions first and then if all the positions were not filled, the company could look for outside pilots.

JBI, from a legal perspective, don't the ALPA represented pilots already 'own' this flying? A wholly owned airline within an airline, flying the same aircraft operated by the ALPA represented pilots, announced the day the pilots unionized, seems like a pretty easy case to make in front of an arbitrator, no?

When the LCC at AC was announced there was lots of talk about outsourcing the flying, using pilots not on the list, the Jetstar model, etc, but the terms and conditions were negotiated by ACPA, albeit then voted down by the membership, and then imposed later on.

8 years ago AC was bleeding market share, downing in debt, and on the verge of a second round of CCAA where ACPA's leadership was convinced their pensions would be on the chopping block and agreed the company needed an LCC to compete.

Westjet has been profitable for over 20 years and the pilots and being told that unless they meet a certain 'cost' this flying is headed elsewhere. Yikes.

From an outsiders perspective, Swoop, while potentially important to the airline from a business perspective to fend of perspective new entrants, is serving as a useful distraction creating uncertainty and divisions within the pilot group and preventing the negotiation of overdue improvements to wages and work rules.

[digits_]

Imagine working at Air Canada and not being "allowed" to join the ACPA. That would really be the dream.

Really curious what would happen in that case.

It’s the pilots choice whether or not to join ACPA. It is not forced on anyone.

I believe for most ALPA union companies, membership is mandatory. Kind of wondering what happens if you get hired but ALPA refuses you as a member.

[.80@410]

Thank you ACPA for your support in this matter.
United, we stand a chance of success in our attempts to improve the WAWCONs of the industry, even while those like New Commercial pilot try to divide us .

Cheers

--- From the ACPA Year-End Newsletter ---

"Closer to home, we have come to learn that WestJet's Master Executive Council would be seeking ACPA's support of a total recruitment ban at Swoop Airlines, WestJet's impending low-cost carrier. While Air Canada management retains the right to hire whomever they see fit and makes those decisions without consultation with ACPA, we support their request that pilots hired at Swoop be ineligible for employment at Air Canada and have communicated such to our Company's management team."

[Victory]

Have Swoop salaries been announced somewhere? For all we know they will make as much as Westjet.

[Bede]

Have Swoop salaries been announced somewhere? For all we know they will make as much as Westjet.

We were told straight from the top that the executive are expecting Swoop pilots to work for wages "consistent with a ULCC". The rumour mill says they want no ESP and pilots working for 65% of current rates.

[NewCommercialPilot]

... announced the day the pilots unionized...

TheStig, for clarfication, the sequence of events was that ALPA announced a certification vote after WJ announced the intention to form an ultra-low cost carrier.

[NewCommercialPilot]

JBI, from a legal perspective, don't the ALPA represented pilots already 'own' this flying? A wholly owned airline within an airline, flying the same aircraft operated by the ALPA represented pilots, announced the day the pilots unionized, seems like a pretty easy case to make in front of an arbitrator, no?

If this were the case, would an employment ban, with the attendant souring of relations between ALPA and WJ, be necessary?

The central issue, IMHO, will be whether SWOOP has a negative effect on the bargaining rights of WJ pilots. The CIRB already found, in Air Canada 1999, CIRB 44, that in spite of a finding of common control and direction, unless the bargaining rights of the employees were adversely affected, the CIRB reserved the discretionary right to a finding of a Single Employer.

Who knows how a legal challenge to go. No one knows that answer. But you can bet your bottom dollar that WJ is getting superb legal advice on how close to the line they can skate.

I suggest that this is the set up to a very contentious round of bargaining towards a CBA. And a single employer challenge (likely involving Encore as well).

Here's the analysis by the judge in the decision that matters:

https://www.canlii.org/en/ca/cirb/doc/1 ... cirb44.pdf

VII - ANALYSIS



76 Section 18 of the Code allows the Board to review bargaining unit certificates. Section 35 grants the Board discretion to declare that two or more employers constitute a single employer:



18. The Board may review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application.



...



35.(1) Where, on application by an affected trade union or employer, associated or related federal works, undertakings or businesses are, in the opinion of the Board, operated by two or more employers having common control or direction, the Board may, by order, declare that for all purposes of this Part the employers and the federal works, undertakings and businesses operated by them that are specified in the order are, respectively, a single employer and a single federal work, undertaking or business. Before making such a declaration, the Board must give the affected employers and trade unions the opportunity to make representations.



(2) The Board may, in making a declaration under subsection (1), determine whether the employees affected constitute one or more units appropriate for collective bargaining.



77 ALPA carries the single and specific burden of presenting evidence in support of a valid labour relations purpose that will convince the Board to exercise its discretion under section 35 and to order the review of the bargaining units under section 18.



78 The instant application is not the first of its kind. In 1989, the IAMAW filed a similar application seeking a declaration that Air Canada, Air Nova, AirBC and Air Ontario constituted a single employer for classifications it represented. (See Air Canada et al. (1989), 79 di 98; 7 CLRBR (2d) 252; and 90 CLLC 16,008 (CLRB no. 771). ) While the Board concluded that the criteria for common control or direction had been met, it declined to issue a declaration as there was no convincing evidence of actual or likely undermining of bargaining rights. In light of that decision, common control and direction were assumed throughout these proceedings.



79 The only remaining issue is whether there exists a sufficient labour relations purpose to dismantle existing bargaining structures in favour of one or several bargaining units certified to negotiate with the parent employer Air Canada. Consequently,as complex,detailed and intertwined as the facts presented to the Board may be, the bottom-line issue is whether in the intervening years, with Air Canada having a 100% interest in its connectors, the Board now believes that the labour relations purpose underlying the determination of bargaining units now warrants a single employer declaration.



80 The Board has consistently held that section 35 is remedial in nature (Air Canada et al., supra; and Prince Rupert Grain Ltd. and British Columbia Terminal Elevator Operators’ Association (1996), 101 di 1 (CLRB no. 1155)). Its object is to prevent employers from circumventing their obligations under the Code by resorting to corporate restructuring or other forms of business relationships that undermine or evade bargaining rights. Section 35 is not the forum for enhancing a collective bargaining relationship (British Columbia Telephone Company and Canadian Telephones and Supplies Ltd. (1977), 24 di 164; [1978] 1 Can LRBR 236; and 78 CLLC 16,122 (CLRB no. 108)). The Board’s review of the bargaining relationship is therefore narrowly focussed on whether the common control and direction exercised by the employer contributes to the erosion of bargaining rights (Air Canada et al., supra).



81 In order to assess this erosion, the Board will examine not only the closeness of the business and financial ties between employers but also the possible adverse effects on the collective rights of unionized employees, both in the form of bargaining rights and bargained rights. Bargaining rights are adversely affected when the form of exchange between the business entities contributes to losses in membership due to the syphoning off of bargaining unit work to other, usually non-unionized, employees. Bargained rights are adversely affected when the business entities are in a position to render those rights inoperable by way of a transfer of business or positions. In other words, section 35 seeks to remedy the bargaining relationships that are under attack or are being diluted by reason of an employer’s gaining control over another business. For the Board to exercise its discretion, it must be convinced that harmonious and effective industrial relations will ensue (Radio Acadie Ltée, CJVA-AM, and Radio de la Baie Ltée, CKLE-FM (1994), 94 di 128 (CLRB no. 1071)).



82 The Board has also been cautious not to override one set of bargaining rights in favour of another or to issue a declaration that would simply advance one party’s bargaining interest over another. In determining whether a single employer declaration is appropriate, the Board must balance the need for bargaining structures that promote industrial stability with corporate efficiency. The right of employees to be represented by the trade union of their choice is a fundamental consideration in the exercise of the Board’s discretion. Furthermore, the Board’s assessment of effective or sound industrial relations purposes is also governed by the impact of a single employer declaration on a stable, long-term bargaining relationship.



83 Each of the numerous rulings that deal with single employer declarations builds on principles that are restated and applied in recent authorities. While the Board is not bound by its precedents, it is guided in its decision-making by these principles as they reflect the objectives of the Code.



84 In the first instance, there is an onus on the applicant union to demonstrate that existing collective bargaining rights or collective agreement benefits have been undermined. In BTS Byers Transportation Systems Inc. et al. (1993), 91 di 69 (CLRB no. 995), in circumstances not unlike the present case, the Board declined to exercise its discretion on the basis that the union had failed to demonstrate how their bargaining rights had been put in jeopardy:



In this case, we are dealing with the deregulated trucking industry where similar needs to survive have arisen as in the airline industry. Expansion through the creation of a “network” of companies to reach various regions and different levels of the transportation market ... has become commonplace. The creation of these networks does not, however, change the rules when it comes to the application of section 35 of the Code. There still must be convincing evidence that the existing collective bargaining rights and/or collective agreement benefits are being undermined.



Such is not the case here. ... In fact, there appears to have been much more evidence of encroachment on bargaining rights and bargaining unit work in Air Canada, supra, where the application was dismissed. There, bargaining unit work that had been done exclusively by the subsidiary entities, such as maintenance for example, was apparently taken over and is being done by Air Canada employees. There is certainly nothing like that here. The Local Unions’ bargaining rights and bargaining unit work remain as they have been for many years. Their problem appears to be that their bargaining rights ... has not expanded along with the network and this appears to be the purpose of this whole exercise. ... This goes much further than the intended purpose of section 35 and, in the circumstances, it obviously cannot be permitted through these provisions of the Code. If the Teamsters want to “raid” the CBRT&GW they must do so through a timely application for certification under the appropriate provisions of the Code.



(pages 82-83; emphasis added)



85 In Radio Acadie Ltée, supra, the Board considered that a ruling was necessary in order to maintain the status quo of the bargaining relationship:



Business transactions are not the reason why the employers want separate collective agreements negotiated. Their argument is rather a strictly legal one based on the fact that separate bargaining units exist. Consequently, if the union’s purpose were simply to enhance its bargaining position by obtaining a unified bargaining structure, its application would fail.



However, the Board believes that such is not the case here. The evidence reveals instead that a unified structure developed by itself to govern the labour relations of the parties. The business arrangements at issue here have produced an intermingling of personnel through employee transfers and intercorporate assignments. In reality, the employees all have the same working conditions and are all supervised by the same person. From this perspective, the union’s application cannot be viewed as an attempt to alter the status quo that exists between the parties. On the contrary, we are forced to conclude that its purpose is rather to maintain this status quo. ...



(page 144; emphasis added)



86 In the second instance, the Board will take into account the timing of the application, having regard for all the circumstances of the case. In Nolisair International Inc. (Nationair Canada) et al. (1992), 89 di 94 (CLRB no. 960), the Board essentially established a “due diligence test” on trade unions and their representatives:



The union filed its application for a declaration on November 2, 1990, when it realized that the situation it had accepted in recent years was having consequences that it had perhaps anticipated, but that it had taken the risk of accepting. This acceptance itself created a factual situation that has consequences for third parties: employees, unions and employers. In this sense the Board believes that the timing of the union’s application is an important consideration in deciding whether to exercise its discretion. ...



...



The union had long been aware of the facts on which it relies in seeking the Board’s intervention. ...



(page 116; emphasis added)



87 In the third instance, common control or direction is not in and of itself determinative of the erosion of bargaining rights. It is not because the employer has created certain efficiencies in its networks or even that some work has passed over to other entities that there will be automatic erosion; the applicant must demonstrate that the bargaining relationship has been affected in terms of loss of employment for the members, loss of privileges, benefits and other trappings of the employment relationship. In Muir’s Cartage Ltd. and Canada Post Corporation (1992), 89 di 12; 17 CLRBR (2d) 182; and 92 CLLC 16,060 (CLRB no. 955), affirmed by the Federal Court of Appeal on December 15, 1993 (leave to appeal refused by the Supreme Court of Canada in Canadian Union of Postal Workers v. Canada Labour Relations Board et al. (1994), 174 N.R. 239), in a situation that raises issues similar to the present case, the Board expressed the view that the employer may organize its business as it sees fit, as long as it has no intention of escaping its obligations within the bargaining relationship:





Here the evidence showed some sortation and transport activities carried out by Muir’s were formerly carried out by members of CUPW. This being said, CUPW members have not been subjected to lay-offs, nor was the Board told of any shut-downs of Canada Post facilities in conjunction with Muir’s performing contracts concluded with Canada Post. There is a simple explanation for this: Canada Post’s parcel transport operations increased when the Expedited program was launched. This may explain why CUPW has not referred to arbitration any grievances regarding these contracts.



Further there is no evidence that Canada Post has tried to thwart the provisions of its collective agreements with CUPW. When the Tier program proved ineffective, Canada Post took it back from Muir’s, as well as from other contractors. Similarly, Canada Post returned to the MSC’s - members of the applicant - the operations involved in collecting mail from postal facilities once it became clear that it would be more efficient. Canada Post was obviously looking for efficiency and profitability not the escape of bargaining rights. Failing any conclusive evidence to that effect we cannot equate such a business concern with an operation aimed at evading its obligations under the Code.



(pages 41-42; 210; and 14,481-14,482)



88 CFRN-TV (a Division of BBS Incorporated) et al., [1999] CIRB no.7 (Baton), also raised issues similar to the instant matter. In that case, the CRTC deregulated the production of local or Canadian drama by removing the requirement for stations to provide local programming, except for local news. Baton began extending and growing its business by acquiring stations in contiguous markets so as to become a large multi-station group, holding licences to operate in most Canadian provinces and markets. With centralized ownership came the immediate loss of jobs. In contrast to the Muir’s case, the Board saw the degree of integration as seriously compromising the bargaining relationship:



[48] Indeed, the news departments that provide the only distinctive aspects of the stations’ programming are in “frequent” contact with one another to exchange and collaborate on stories. News items are double-tagged to be used in both venues. A fibre optic line has been permanently installed to facilitate this contact and there is a specific time set aside on the fibre-optic hook-up for the two news department to connect regarding news items. News emanating from the provincial legislature is provided to both news stations from a common source staffed by CFRN. Similar arrangements do not exist with other stations.



[49] Commercials are provided to both stations through the Traffic Control operation out of Calgary at CFCN-TV. The Master Control programming function for both stations is, as well, centralized out of Calgary. ...



...



[57] The same centralized direction/control over the mid-term planning is evident in the two stations’ labour relations strategies. Mr. Fillingham testified that Baton has a strategic direction in its labour relations planning and that all collective agreements negotiated must tie in with the company’s strategic direction. He acknowledged that Baton had a hand in negotiating the most recent collective agreement “from a policy aspect” in order to ensure that there was sufficient flexibility to allow for “centralization and synergies” in the areas of Master Control, Traffic Control, promotion, accounting and programming.



[58] It was critical to the Board that Baton’s decisions concerning centralization, “synergies” and the movement toward a “critical mass” of resources are made on a broader national scale and, in the present case, the impact of these decisions is manifested in their specific application to CFRN and CFCN.



...



[67] The centralization of these functions and the “efficiencies” and “synergies” they produced for the Employer were clearly part of its long-term plans. These plans could only be implemented on the regional scale they were between CFRN and CFCN because both stations were under the common control and direction of Baton, which controlled the Employer’s “strategic direction” at both bargaining tables. ...



(pages 16, 18-19, and 22)



89 In Rivtow Marine Ltd. and Tiger Tugz Inc., [1999] CIRB no. 30, the Board refused to consolidate an existing bargaining structure where the jurisdiction of the two unions was tied to the work historically performed by members of two craft unions. The applicant had failed to show it had a legitimate claim over the work of the other bargaining unit it sought to consolidate; therefore, the applicant’s bargaining rights were not negatively affected in the long term.



90 In the end, the Board never loses sight of the leading principles stated in the seminal case of The Canadian Press et al. (1976), 13 di 39; [1976] 1 Can LRBR 354; and 76 CLLC 16,013 (CLRB no. 60):



... Even if all criteria used by the Board in its evaluation are met, the Board is under no obligation to make such a declaration. The Board’s discretion is exercised on the basis of ensuring the rights of employees to be represented by the trade union of their choice in a bargaining structure conducive to “effective industrial relations” and “sound labour-management relations”. There may indeed be circumstances where a declaration made possible under Section 133 [now section 35] would be inappropriate and not only not supportive of the objectives of the Canada Labour Code, but contrary to them. If, for example, there were existing bargaining rights which might be infringed upon by the Board exercising its powers or if the impact of such declaration on the parties involved, or indeed other parties, would be demonstrably deleterious, the Board would certainly hesitate to act, no matter what the weight of the evidence concerning commonality of undertaking.



(pages 47; 360-361; and 442)



91 Based on these principles, the application fails utterly. Thus while Air Canada pilots may be perceived as having more desirable working conditions and better career opportunities than connector pilots, this situation in and of itself does not support a sufficient labour relations purpose to justify tampering with the existing bargaining structure. It would be inappropriate for the Board to exercise its discretion and make a single employer declaration based on this factor only.



92 Furthermore, ALPA clearly has as its sole objective the implementation of a single bargaining unit with a merged seniority list. This bargaining unit would comprise Air Canada’s 2,200 pilots to the connector’s 800 who are overwhelmingly opposed to this application. It is also not realistic to expect that ALPA would walk out victorious in a representation vote.



93 Also in coming to its conclusion, the Board has focussed on the issues linked to the labour relations purpose to be served by a single employer declaration:



a) whether substantial changes in the industry have occurred as a result of Air Canada’s 100% equity interest in its connectors since the Board’s 1989 Air Canada decision, which would warrant revising the Board’s previous decision;



b) whether the modification of bargained and bargaining rights now support a labour relations purpose for a declaration.



94 In Air Canada et al., supra, the Board based its finding of common control and direction on Air Canada’s decisive say on a connector’s development and expansion. In deciding not to exercise its discretion, the Board considered the following.



95 In terms of corporate organization, each connector maintained its own head office, banking, legal advisors; furthermore, there had been no exchange of assets and employees. Each connector had its own management and labour relations policies and practices, share purchase plans, and so on. Air Canada did not get involved in a major labour dispute that took place at Air Ontario during the proceedings.



96 IAMAW employees working for Air Canada also worked on Air Ontario or AirBC equipment. Some functions performed by a given classification at one connector were performed by another at Air Canada. Station closures did not lead to any lay-offs. The union was able to negotiate a form of job security and a better severance package than what was actually in the collective agreement. There was an increase in IAMAW personnel as a result of Air Canada’s ties with the connector network.



97 In these respects, the situation has not changed substantially. There is no debate that the connector and Air Canada routes are seamlessly connected. This is part of Air Canada’s branding and the basis of the codeshare between the airlines. Nor is there any doubt that the airlines share a corporate designation and colours, frequent flyer benefits, and so on. However, contrary to its American counterparts, Air Canada’s connectors do not share a management base with the mainline. There is no evidence of cross-utilization of equipment between Air Canada and connectors, no cross-over of pilots from one airline to the other, and no centralized crew scheduling and planning. Each airline maintains a separate hiring structure and its

own recruitment standards, and directs its own labour relations. Pilots’ pay, benefits and pensions are negotiated within each of the connectors.



98 The hiring of Air Canada pilots by connectors during the furlough was to permit continuing employment of Air Canada pilots and cannot be interpreted as an exchange or cross-over of services. Connectors were at liberty to set their own hiring criteria; some Air Canada pilots did not qualify. The tenure of connector pilots was not affected by the hiring of former Air Canada pilots; those pilots went to the bottom of the seniority list, the common practice in the airline industry. The addition of RJs did result in the rehiring of Air Canada pilots, but it also allowed 500 connector pilots (out of a total of 800) to move to the mainline carrier. LOU 24 at NWTA, which allowed the training of Air Canada pilots on NWTA equipment, was negotiated by ALPA itself to deal with a situation that it had created by negotiating LOU 17.



99 ALPA argues that Air Canada’s “overflying” during the 1997 connector strike demonstrates that it was in a position to break the strike by using its equipment and pilots to fly on struck routes. Air Canada increased flights on main routes that it shared with connectors and was able to fly certain flights on connector routes. However, Air Canada was but one of several carriers with whom connectors contracted to provide service on their routes. It did not necessarily fly according to connectors’ schedule but according to equipment availability. Indeed, if Air Canada were able to substitute its equipment on a “significant” number of the regional routes, this would put into question the need for connectors as they now exist. Nor can this be considered as any form of intermingling since no connector equipment was used by Air Canada pilots in flying the struck routes. More importantly, the strike occurred after these proceedings started, on the basis of issues before the Board, with a view to creating a common negotiating front which had never previously existed within connectors and was contrary to ALPA’s own constitution about no industry-wide bargaining. Needless to say, none of this bolsters ALPA’s case.



100 For the movement of employees to significantly affect labour relations to the extent of upsetting the balance of power, there must be some clear evidence of a repetitive cross-over of employees who are in a position to deliver the same or comparable work. This also presumes that the pilots are equally qualified to perform the same work. While qualified pilots are all licensed to fly, they are not all qualified to fly the same equipment. Nor can the equipment be said to be easily interchangeable. Indeed, ALPA’s argument flies in the face of the true purpose of the instant application which is to enable connector pilots to become qualified on progressively larger equipment in keeping with their seniority and experience. The very nature of connector flying is that the equipment is of a smaller size and of a different capacity than that of the mainline carrier. It follows that connector pilots cannot be said to be in a position to immediately assume pilot functions on the larger equipment, which would allow intermingling to occur. Again, if the argument is flexibility, if anything, it would be Air Canada pilots who are more reasonably in a position to fly connector equipment. Clearly, Air Canada pilots have no interest in returning to connector flying or to smaller equipment. Clearly, the only interest being served is that of connector pilots wishing to move up to the mainline carrier for greater career opportunities. On this front, there is no basis for a finding that there has been a wholesale movement of employees within the Air Canada family or that intermingling has occurred, which would impact negatively on the bargaining relationship between ALPA and the connectors.



101 ALPA argues that Air Canada, not the connector carriers is the true employer of connector pilots: Air Canada controls their career, their employment and their earning prospects. Because of the existence of two different unions, connector pilots no longer have any influence on labour relations at Air Canada; connector growth has been jeopardized by Air Canada’s decision to introduce RJs as part of the mainline operations; connector pilots have been “whipsawed” by the concessions obtained during the 1993 negotiations; and finally LOU 17, 18 and 24 hinder the advancement of connector pilots.



102 In truth, in 1993, the Air Canada MEC was still part of CALPA with the necessary delegated authority under its constitution to conclude a collective agreement. According to the CALPA Constitution, the Chairman of the MEC represents the members of his airline and acts on their behalf in all matters; is responsible for the negotiation and administration of the collective agreement between the Association and his airline; and signs all Agreements and Letters of Understanding between the Association and his airline. Under CALPA’s Administrative Policy of January 1996, all negotiations are to be carried on individually with each carrier; there is no industry-wide bargaining. This provision has been in the Policy since 1960. The Air Canada MEC did precisely what it was required to do. It negotiated Letters of Understanding that protected the pilots of the airline it represented. It had no authority to make commitments for other carriers or their pilots, nor did it attempt to do so. Apparently, at the time the 1993 collective agreement was signed with Air Canada, CALPA did not see it as appropriate to invoke Article VI of its Constitution to intervene in the affairs of the MEC in this regard. The dichotomy, if such may be said to exist, is of ALPA’s own doing. It is ALPA that organized and certified the bargaining units, and it is ALPA that negotiated the collective agreements. How can it now say that the very conditions it created have become harmful to labour relations? To the contrary, connector carriers have grown significantly since its pilots have been represented by ALPA, both in fleet size and the number of pilots employed. There have been no temporary or permanent lay-offs. Some 500 connector pilots have moved to Air Canada.



103 Unions throughout the airline industry have traditionally maintained separate bargaining agreements with each individual carrier, even those controlled by a parent airline. Only those airlines that have merged their operations have integrated their seniority ranking. This practice by both employers and unions negates the notion that co-ordinated service offerings of connector and international partners are conclusive of a single carrier or employer. The evolution of the market since deregulation and significant operational differences justify the maintenance of separate connector and mainline entities.



104 ALPA has acquiesced to this state of affairs by taking a connector-by-connector approach to certification even as significant events unfolded. The first concern about possible erosion of flying rights occurred in 1986 when Air Canada acquired a controlling interest in AirBC and Air Ontario, so much so that a merger declaration issued from CALPA at the time. Yet, Austin Airways pilots were certified as a separate group in 1987, Air Nova pilots were certified separately in 1988, and AirBC pilots were certified separately in 1990. A second merger was declared in 1991. Again, CALPA pursued its course of certifying connectors airline by airline. Austin Airways pilots and Air Ontario pilots were combined into a single and separate bargaining unit in 1991; Air Alliance pilots were certified in 1992 as were NWTA pilots.



105 The first LOU 17 and 18 were negotiated in 1989 and renewed twice. It was not until the Air Canada MEC rejected the Picher award and left CALPA that CALPA undertook to consolidate its bargaining relationship with Air Canada and filed this application. The events put before the Board are the culmination of a long and bitter internal dispute within the union rather than a response to change of direction and control within the Air Canada family. ALPA has never forgiven Air Canada pilots for refusing to negotiate the Picher award into their collective agreement and deciding to form a separate bargaining unit, effectively severing ALPA’s relationship with Air Canada.



106 ALPA is now seeking to accomplish through this Board what it could not obtain at the bargaining table, i.e., the implementation of the Picher award, which would have the effect of dramatically improving the working conditions of connector pilots. ALPA is not arguing that connector pilots are underpaid for the work they do; or that they have been subject to wage roll-backs; or that they have been the subject of lay-offs due to Air Canada going to RJs; or that Air Canada has transferred existing work out of the bargaining unit and given it to non-unionized employees. Yet, these are the very issues that go to the core of the bargaining relationship and would conclusively demonstrate an erosion of bargaining power and of bargained rights.



107 ALPA argues that connectors did not get to fly the RJs because of a decision made by Air Canada and to which connectors subscribed: Air Canada pilots have secured their employment through a scope clause and connector pilots must be placed at the bottom of the seniority list if they decide to go to Air Canada for advancement to larger equipment. Connector pilots are not prevented from moving to Air Canada. To the contrary, many view connector flying hours as the key to a career at Air Canada. Connector pilots have preferential hiring through Air Canada’s LOU 18, a benefit they did not previously have. Additionally, they are one step ahead of off-the-street hires by having up to four years’ service at a connector, taken into account in setting their pay level at Air Canada. Since 1996, this connector transition agreement provides for review of possible pension buy-back provisions, which might then be offered to connector pilots moving to Air Canada. Significantly, 500 out of 800 connector pilots have found employment with Air Canada as a result of its expansion. Such facts are inconsistent with an eroded bargaining relationship.



108 Many of the same parties participated in the 1989 Air Canada case. Pilot seniority issues aside, this is the identical issue that was before the previous Board, that is, whether Air Canada and its connectors ought to be declared to constitute a single employer. In 1989, for reasons with which this panel agrees, the Board decided that, although the criteria of common control and direction of section 35 had been met, it refused to issue the single employer declaration and dismissed the application.



109 There have been no significant changes in the airline industry. This Board sees no reasons to reverse this decision and thereby destabilize labour relations in that industry. Air Canada and its family of connectors constitute a heavily unionized work environment with a complex array of bargaining units, bargaining agents and numerous work jurisdictions, and collective agreements. All the trade unions participated in the 1989 case and had their say. When the status quo was maintained, the employers and their unions carried on as before. The organization of employees, the development of collective bargaining strategies, the administration of grievances, the development of economic issues and the renewal of collective agreements have all taken place within the labour relations environment confirmed by the Board’s decision. In the decade that followed, the decision became an integral part of, and moulded the climate of, labour relations at Air Canada and its connectors. As expressed by the CAW: “All the parties’ activities have taken place in the shadow of the Board Decision.”



110 In the intervening years, other trade unions and employers have relied on that decision in the conduct and organization of their workplace. Those are reliant interests that ought to be protected. They have a reasonable expectation that, in the absence of major and significant corporate restructuring that undermines bargaining relationships, a comparable structure will continue to be sanctioned by the Board. This may be a new Board; however, the principles and spirit of the Code have not changed.



111 The principles enshrined in section 35 jurisprudence were first set out in the Canadian Press case. Other cases have refined their meaning, but the core principles have not changed. Nor have they been overturned by the higher courts. Recent modifications to the Code have avoided fettering the Board’s discretion. These principles as they have been applied provide a certainty on which the parties rely in the conduct of their affairs. Out of the Board’s earlier decisions dealing with these employers has come labour relations stability and certainty that have affected thousands of workers, within and outside the companies. The Board must respect the structure that parties have created for themselves and that it has approved as appropriate bargaining units. In the absence of compelling evidence and argument, the Board will not lightly dismantle a bargaining structure that has served the parties well, all for the sake of a few who seek to advance their career prospects.

[JBI]

JBI, from a legal perspective, don't the ALPA represented pilots already 'own' this flying? A wholly owned airline within an airline, flying the same aircraft operated by the ALPA represented pilots, announced the day the pilots unionized, seems like a pretty easy case to make in front of an arbitrator, no?

Hi Stig,

From my understanding that's actually a pretty complex question and deals with the interaction of corporate law, contract law and labour law. On the one hand, a corporation (X) in Canada is allowed to set up another wholly owned company (Y) that will be an entirely different legal entity. On the surface, with two separate companies, the employees of X have no more of a claim to the jobs in company Y than any other person not affiliated with either company.

However, contractually, based on the CEO's public comments, it sounds as if there is a provision requiring the WJ pilots to be involved/consulted/invited/or given the right of first refusal to the Swoop flying in some capacity. I have no doubt that both sides in the negotiations are having their lawyers investigating how such a provision would be interpreted. I couldn't even start to give an opinion on how it would be interpreted.

Finally, in labour law, although the CIRB generally permits companies to structure their enterprises however they see fit, there are some provisions that prevent employers from trying to 'punish' unionized workers by taking away work and giving it to non-unionized employees at sister companies. If Swoop ends up using non-unionized pilots, would the CIRB consider that it was trying to punish or get around the labour agreements with the WJ pilots? Maybe, maybe not - there are arguments both for and against. The company would argue that Swoop is an entirely different business with a different purpose than WJ and Encore, that they 'tried' to work with the WJ pilots to negotiate terms and that as an entirely different company that was in the works before the application to the CIRB. The pilots would argue that it is aircraft coming from WJ of the same type, the timing was closely linked to certification and there is a contractual provision for this flying to be done by WJ pilots.

On a personal note from the perspective of wanting a healthy aviation industry that provides affordable air travel for the traveling public, profitable airlines and stable career progression for pilots, I am extremely disappointed with how Swoop has progressed. There's a great book about the history of the US Airline Industry called "Hard Landing" by Thomas Petzinger, Jr (a former Wall Street Journal reporter). One of the underlying themes is that in order to run a successful airline, upper management needs to have and work to keep the trust of the pilots (and other employees). I don't think Swoop is helping that cause.

[.80@410]

It's now public knowledge . Thank god for ALPAs resources

[NewCommercialPilot]

Thank god for ALPAs resources.

Well, I guess, if you're a fan of digital photos of pieces of paper. What effect do you think this will have?

[.80@410]

More effect than your beloved WJPA would have had, NCP

[GAF]

So listen JS. We know you want to de certify. Ok fine. But why? You wouldn't be makinng your O/T $$ without union help. I've been at WS for over 17 years. I want it to be profitable. But not at the expense of the new and upcoming pilots. We should be paid what we are worth. The young guys climbing the ranks should be compensated what they are worth. It's a pretty simple formula.

[NewCommercialPilot]

GAF. I'm not actually working much OT these days, and haven't for the last two years. Ripping the skies in my wingsuit, and most recently I'm in the final stages of my wingsuit airspeed indicator design that I'm calling the WingNut.

I'm not sure, but I don't recall any unionized shops going the non-seniority route for schedule bidding. Care to name a few? Same with no reserve, care to name a few? How about the combined list between WJ and WJE? I'm sure there is lots that A*** has done, but nothing it is going to do at WJ is going to be in my interest, unless it is bringing in seniority bidding. Everything else will be a net negative for me. But none of that is under my influence, I'm not a member and not going to be a member. It's not my thing.

As far as de-certifying, I'm willing to wait until the shitshow that has just begun plays out.

The WingNut goes on sale in early 2019. Retail price is going to be $499 USD if you want to reserve yours now. The price may go up.

Cheers

[Realitychex]

Having recently completed a granular independent analysis of Swoop and the ULCC opportunity in Canada, something I’m pretty sure ALPA has yet to do, (and even if they did, it would not be anywhere as detailed or realistic in projected outcomes), it would become clear that It is in all parties interests to sit down and cut a deal that works, and soon.

Is the analysis accurate? Given that WJ wouldn’t exist today without the analysis that I did way back when, and that the WJ analysis went on to be the basis of the analysis of what became JetBlue and a couple of other airlines now flying today, I wouldn’t ignore it.

In spite of all the positioning / rumors etc, I don’t believe Swoop rates will take wages into the dark ages.

What becomes readily apparent in the analysis is that Swoop is poised to do to incumbents what WJ did in 1996. Airlines operating A319’s, (even “free”319’s), or 737-400’s are going to be in no position to compete with Swoop’s fully allocated unit costs and the sort of fares that will be seen on the network that is likely to be developed. They are miles apart.

Airlines operating that equipment with those fundamental costs are going to have to be completely rejigged within a year of Swoop getting 10 airframes, and we all know what that means.

ALPA doesn’t want to hear that sort of talk. It’s in AlPA’s interests that none of this comes to pass.

The problem is that if it’s not Swoop, it’ll be someone else. Given what I know, and were I 20 years younger, I’d assemble a crack team and do it myself.

Anyone connected with WJ should know the value of being the first mover and the old phrase about “ the devil you know”. Swoop is not the devil. Some folks may not like it, but if you are a Westjetter, you should seriously contemplate the end game should some entity other than a WJ based operation come to pass because it would likely be way, way worse.

If you saw the Cdn specific ULCC analysis, I think the posturing would end pretty quickly and a deal that everyone could live with would get done.

It’ll be interesting to watch whether ALPA will represent “pilots” best interests, or more importantly if my paycheque and long term career prospects comes from the success of WJ, “WestJet pilots” best interests.

They are two very different things.

Happy Holidays

[saltypilot]

Nobody is saying Swoop shouldn’t happen...We are saying it should NOT happen at the expense of pilots wages & working conditions. End of story.
Any pilot worth their salt will not be short sighted enough to condone supporting this abomination in its current form and how they’re intending to compensate.
I’m going to take a stab in the dark and say that any company’s books would look good if you make the parent pay for all the expenses while you only show the profits.
Swoop will not have my support until EVERYTHING with respect to wages & working conditions is a carbon copy of its Parent...that’s just the right thing to do.

Nothing personal...just business...Pilot business

[atphat]

Does GS take a pay cut when he works on the Swoop project? Has any other WJ employee working on the project so far taken a pay cut? What about the web designers who made the pretty pink plane picture? Did they do it at market rates or for a fraction of them? Give me a break.