Lay-Off And Scope Considerations of the One List LOA

[JBI]

Sorry for the long post, but this One List LOA is extremely important for everyone at WestJet and Encore. I ask that you take a read through carefully.

It seems that the biggest complaint from Mainline Pilots with regard to the One List LOA is the different wording regarding lay-offs and scope. I wanted to address this. Again, hopefully someone can copy and paste and put it on the ALPA forum. 

I’ve commented frequently on the other thread, but just to reiterate, I am an Encore pilot and do stand to benefit if the One List passes. Unlike another well-known poster on these boards who would consistently quote regulations and case law, I actually I am a practicing lawyer with over 6 years full time experience practicing law (plus some part-time) and while I did not specifically practice labour law, I do have pretty significant experience interpreting contracts and being involved in settlement negotiations. I also can be objective in outlining where there may be benefits to others but not necessarily myself.

My understanding of the some of the mainline pilots' issues with the LOA is the concern that the wording is different than the wording that was previously in the WJPA WestJet and Encore Contracts. In the previous WJPA contracts, WestJet Pilots had the right to bump junior Encore pilots in the case of lay-offs AND Encore pilots had the right to bump junior WestJet pilots as well.

Currently, now that the WJPA contracts are no longer in force, there are NO provisions that would permit a mainline or Swoop pilot to bump an a junior Encore pilot and vice versa. So if the LOA is a No vote, there are no provisions for bumping Encore pilots. We don't go back to how things were.

In the One List LOA, there is different wording than the previous WJPA contracts that doesn’t directly include the right to bump junior pilots at another carrier. It seems that amongst the "No" side there is a belief that there should be a clause that allows a senior pilot to bump pilots of lower seniority at a different carrier.

At the end of the day, however, when reading the LOA in its entirety it provides GREATER lay-off protection for mainline pilots than the WJPA Agreement.

It is important to note that although Encore has its own operating certificate, it is technically in a Capacity Purchase Agreement (CPA) with WestJet. This is important to understand.

Now, let’s look at the Scope Clauses in the WJ/Swoop Contract and the Encore Contracts:

WestJet

1-1.05. As long as WestJet pilots are subject to this Agreement, WestJet shall guarantee ninety percent (90%) of the number of active WestJet Pilot Positions that exist on the date this Agreement becomes effective. Parties acting reasonably will meet to negotiate adjustments as appropriate arising from equipment/base changes.

Moreover, no Pilot shall be laid off as a direct result of the Company’s business relationships with other airlines, including capacity purchase agreements, code-sharing agreements, marketing agreements, interline agreements, block space agreements, or joint ventures.


Now, let’s compare this to the equivalent clause in the Encore (which remember is a Capacity Purchase Agreement carrier for WestJet)


Encore

2-4.01. In order to provide employment security for the Pilots, there shall be no layoffs as a direct result of the following events:

a) Current or future Company Code Share with other air carriers.

b) Current of future Company commercial agreements with other carriers.


They’re pretty different, eh? Notice the WestJet one has two interesting clauses that the Encore Scope does not.

The first clause, the 90% clause, seems to me to be put into place to protect pilots from the company just saying “Ok, everybody over to Swoop, we’re going straight to 30 tails”. But, at the same time it does offer protection to the top 90% WestJet pilots at mainline. As some have mentioned, it’s 90% at the time of the contract and not 90% all time. So, they correctly claim that the percentage of pilots protected will decrease if mainline expands. Very roughly, and if others have more accurate data please let me know, but it looks to me that as of Jan 1, 2019, there were around 1550 WestJet mainline pilots. So, 90% of that would be approximately 1400 WestJet pilots that are protected via that clause.

When you look at the most recent WestJet Pilot Seniority List, above position 1400, there are only 17 Encore pilots. Most of whom are management pilots who have long bypassed flow. So, for all intents and purposes, those 1400 spots are safe and no more Encore pilots will be bypassing them. Therefore, no mainline pilot already in that 1400 (90%) will stop being protected even if the company grows and more Encore pilots flow. Except for the limited number outlined above, the Encore pilots will always flow to a seniority spot below 1400.

More importantly, however, the second part of the clause specifically outlines that no pilot shall be laid off as a direct result of the Company’s business relationships with other airlines INCLUDING Capacity Purchase Agreements.

This isn’t just a feel good, don’t worry we’re not going to replace you with other carriers type clause (though the clause does cover those conditions). If a WestJet pilot is laid-off as a direct result of a relationship with an airline via Capacity Purchase Agreement, then WestJet is in breach of the Contract.

So, what if there was a clause for all pilots on the WestJet Pilot Seniority List to be able to bump any pilots junior to them regardless of what carrier they fly for? That would mean that if an Encore pilot bumped a WestJet pilot that a WestJet pilot is getting laid off as a direct result of a Capacity Purchase Agreement which puts the company in breach of the contract.

Now, make no mistake, regardless of the wording when it comes to lay-offs, things are going to start to get messy. But why would the company agree to a clause in an LOA that would put them in breach of their WestJet CA?

This results in two conclusions:

1- WestJet pilots are extremely insulated from lay-offs. In addition to the 90% clause to prevent the company from moving all capacity to Swoop asap, the clauses above make it very unlikely that the company would lay-off mainline pilots without first laying off Encore pilots.

2- Those mainline pilots who want to vote “no” to then go renegotiate the lay-off clauses would have a basically impossible task getting the company to agree on different language that has the potential to put them in breach of the WestJet CA.

When it comes to lay-offs, nothing is a guarantee which is what I’m sure all pilots want. However, the reality is that mainline pilots generally are much more protected than Encore pilots if there ever are lay-offs. Honestly, if I were a mainline pilot I would take that protection over pure seniority any day.

Happy to continue the respectful discussion regarding this topic.

[flyinhigh]

Mr. Ball for President....Very well put as always.

I will clarify one aspect, which is minor.

There is no technically, it is a pure CPA. So if the Company wanted to grow Encore to 100 tails which than resulted in a mainline layoff, as you said, the company would be in breach of the WestJet CBA.

It is important to note that although Encore has its own operating certificate, it is technically in a Capacity Purchase Agreement (CPA) with WestJet. This is important to understand.

[ALPApolicy]

Sorry for the long post, but this One List LOA is extremely important for everyone at WestJet and Encore. I ask that you take a read through carefully.

It seems that the biggest complaint from Mainline Pilots with regard to the One List LOA is the different wording regarding lay-offs and scope. I wanted to address this. Again, hopefully someone can copy and paste and put it on the ALPA forum. 

I’ve commented frequently on the other thread, but just to reiterate, I am an Encore pilot and do stand to benefit if the One List passes. Unlike another well-known poster on these boards who would consistently quote regulations and case law, I actually I am a practicing lawyer with over 6 years full time experience practicing law (plus some part-time) and while I did not specifically practice labour law, I do have pretty significant experience interpreting contracts and being involved in settlement negotiations. I also can be objective in outlining where there may be benefits to others but not necessarily myself.

My understanding of the some of the mainline pilots' issues with the LOA is the concern that the wording is different than the wording that was previously in the WJPA WestJet and Encore Contracts. In the previous WJPA contracts, WestJet Pilots had the right to bump junior Encore pilots in the case of lay-offs AND Encore pilots had the right to bump junior WestJet pilots as well.

Currently, now that the WJPA contracts are no longer in force, there are NO provisions that would permit a mainline or Swoop pilot to bump an a junior Encore pilot and vice versa. So if the LOA is a No vote, there are no provisions for bumping Encore pilots. We don't go back to how things were.

In the One List LOA, there is different wording than the previous WJPA contracts that doesn’t directly include the right to bump junior pilots at another carrier. It seems that amongst the "No" side there is a belief that there should be a clause that allows a senior pilot to bump pilots of lower seniority at a different carrier.

At the end of the day, however, when reading the LOA in its entirety it provides GREATER lay-off protection for mainline pilots than the WJPA Agreement.

It is important to note that although Encore has its own operating certificate, it is technically in a Capacity Purchase Agreement (CPA) with WestJet. This is important to understand.

Now, let’s look at the Scope Clauses in the WJ/Swoop Contract and the Encore Contracts:

WestJet

1-1.05. As long as WestJet pilots are subject to this Agreement, WestJet shall guarantee ninety percent (90%) of the number of active WestJet Pilot Positions that exist on the date this Agreement becomes effective. Parties acting reasonably will meet to negotiate adjustments as appropriate arising from equipment/base changes.

Moreover, no Pilot shall be laid off as a direct result of the Company’s business relationships with other airlines, including capacity purchase agreements, code-sharing agreements, marketing agreements, interline agreements, block space agreements, or joint ventures.


Now, let’s compare this to the equivalent clause in the Encore (which remember is a Capacity Purchase Agreement carrier for WestJet)


Encore

2-4.01. In order to provide employment security for the Pilots, there shall be no layoffs as a direct result of the following events:

a) Current or future Company Code Share with other air carriers.

b) Current of future Company commercial agreements with other carriers.


They’re pretty different, eh? Notice the WestJet one has two interesting clauses that the Encore Scope does not.

The first clause, the 90% clause, seems to me to be put into place to protect pilots from the company just saying “Ok, everybody over to Swoop, we’re going straight to 30 tails”. But, at the same time it does offer protection to the top 90% WestJet pilots at mainline. As some have mentioned, it’s 90% at the time of the contract and not 90% all time. So, they correctly claim that the percentage of pilots protected will decrease if mainline expands. Very roughly, and if others have more accurate data please let me know, but it looks to me that as of Jan 1, 2019, there were around 1550 WestJet mainline pilots. So, 90% of that would be approximately 1400 WestJet pilots that are protected via that clause.

When you look at the most recent WestJet Pilot Seniority List, above position 1400, there are only 17 Encore pilots. Most of whom are management pilots who have long bypassed flow. So, for all intents and purposes, those 1400 spots are safe and no more Encore pilots will be bypassing them. Therefore, no mainline pilot already in that 1400 (90%) will stop being protected even if the company grows and more Encore pilots flow. Except for the limited number outlined above, the Encore pilots will always flow to a seniority spot below 1400.

More importantly, however, the second part of the clause specifically outlines that no pilot shall be laid off as a direct result of the Company’s business relationships with other airlines INCLUDING Capacity Purchase Agreements.

This isn’t just a feel good, don’t worry we’re not going to replace you with other carriers type clause (though the clause does cover those conditions). If a WestJet pilot is laid-off as a direct result of a relationship with an airline via Capacity Purchase Agreement, then WestJet is in breach of the Contract.

So, what if there was a clause for all pilots on the WestJet Pilot Seniority List to be able to bump any pilots junior to them regardless of what carrier they fly for? That would mean that if an Encore pilot bumped a WestJet pilot that a WestJet pilot is getting laid off as a direct result of a Capacity Purchase Agreement which puts the company in breach of the contract.

Now, make no mistake, regardless of the wording when it comes to lay-offs, things are going to start to get messy. But why would the company agree to a clause in an LOA that would put them in breach of their WestJet CA?

This results in two conclusions:

1- WestJet pilots are extremely insulated from lay-offs. In addition to the 90% clause to prevent the company from moving all capacity to Swoop asap, the clauses above make it very unlikely that the company would lay-off mainline pilots without first laying off Encore pilots.

2- Those mainline pilots who want to vote “no” to then go renegotiate the lay-off clauses would have a basically impossible task getting the company to agree on different language that has the potential to put them in breach of the WestJet CA.

When it comes to lay-offs, nothing is a guarantee which is what I’m sure all pilots want. However, the reality is that mainline pilots generally are much more protected than Encore pilots if there ever are lay-offs. Honestly, if I were a mainline pilot I would take that protection over pure seniority any day.

Happy to continue the respectful discussion regarding this topic.

JBI called it.

The WEN CBA states:

2-4 CODE SHARING AND OR COMMERCIAL AGREEMENTS

2-4.01 In order to provide employment security for the Pilots, there shall be layoffs as a direct result of the following events:
.
.
.
b) Current or future Company commercial agreements with other air carrier.

The lawyer obviously knows better than me. So how exactly were WSW/WJA pilots able to cause layoffs at Encore?

[ALPApolicy]

As the lawyer JBI said:

...regardless of the wording when it comes to lay-offs, things are going to start to get messy. But why would the company agree to a clause in an LOA that would put them in breach of their WestJet CA?

This begs the question: why did Encore sign an agreement with a clause in the LOA that put them in breach of the Encore CA?

[ALPApolicy]

From the PTA:

WESTJET OR SWOOP LAYOFF AND RECALL

8.01. Any Pilot who has been laid off from WestJet or Swoop shall be able to move (bump) into Encore in order of Seniority on the Seniority List.

This section of the PTA seems in direct violation of the Encore CBA (as JBI pointed out above)