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 REPLY COMMENTS OF

THE ASSOCIATION OF FLIGHT ATTENDANTS

- CWA,

THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE

WORKERS

THE TRANSPORT WORKERS UNION OF AMERICA AND

THE TRANSPORTATION TRADES DEPARTMENT, AFL

- CIO

The Association of Flight Attendants

- CWA (AFA), the International Association of Machinists

and Aerospace Workers (IAM), th e Transport Workers Union (TWU) , and the Transportation

Trades Department, AFL

- CIO (TTD) submit this reply to comments filed in response to DOT’s

August 4 Notice (“Notice”) requesting comments on the views expressed by DG MOVE on the

meaning and applicability of Article 17 bis of the U.S.

- EU Air Transport Agreement (ATA)

.

TTD also submitted a joint reply to comments along with the Air Line Pilots Association (ALPA)

and the European Cockpit Association (ECA). This reply associates itself with and supports that

filing

, and provide s additional thoughts.

For those of us w ho have been closely following Norwegian Air International’s application with

the DOT for an exemption and foreign air operator certificate, the comments filed in reply to the

Notice provide a clear picture for what is at stake with this application and fo r the future of

transatlantic aviation. The comments filed by NAI and its supporters are straightforward in how

they believe Article 17 bis should be applied. In short: it shouldn’t be, at least in any meaningful

way.2

This interpretation is inherently flawed, however, as detailed in comments filed by our unions, as

well as those filed by ALPA, ECA, ETF, and several U.S. and European airlines. It is our

contention that not only is Article 17 bis enforceable, and provides the legal basis for denying

NAI’ s application, but that it is central to the spirit and intent of the U.S.

- EU ATA

. Indeed, the

preamble to the 2010 Protocol amending the ATA states the broad goals of the parties : “opening

access to markets and maximizing benefits for consumers, airline s, labour and communities on

both sides of the Atlantic.” (Emphasis added). Maximizing benefits to workers stands side by side

with the other goals of the ATA.

Article 17 bis is the social provision designed to ensure that the spirit of the agreement, as it

pertains to worker rights and benefits, is upheld as the ATA is implemented. The argument that

Article 17 bis cannot be unilaterally used to deny an application under the agreement undermines

the text of the provision, the spirit of the ATA and ign ores the well stated intent of the parties when

the agreement was signed. This intent is illustrated by the June 24, 2010 press statement of EC

Commissioner Siim Kallas which says in part: “ For the first time in aviation history, the agreement

includes a dedicated article on the social dimension of EU

- US aviation relations. This will not only

ensure that the existing legal rights of airline employees are preserved, but that the implementation

of the agreement contributes to high labou r standards.”

In this context, the claims by NAI on the applicability and enforcement of Article 17 bis are, at

best, revisionist history. To support its claims NAI included in its comments a Joint Declaration

by John Byerly and Daniel Calleja, who led the U.S. and Europe an negotiating teams

, respectively.

The declaration claims that Article 17 bis was not intended to “provide a legal basis for unilaterally

denying an application” under the agreement. However, as detailed in the joint reply filed by TTD,

ALPA and ECA, th is intention is being disclosed f or the first time now

– nearly four years later.

This was not disclosed at any time during the negotiating process, and had it been, we would not

have supported the agreement.

It is also important to note that Mr. Byerl y did not disclose in the Joint Declaration that he is

currently employed by NAI as a paid registered lobbyist to work on its behalf. As such, this

statement of intent should be viewed by DOT not as that of a former gover nment official, but rather

as a pa id advocate for NAI

. We believe that the text of the agreement and the statements made by

government officials when the agreement was signed provide a more accurate assessment of the

intent of negotiators and the provisions embodied in the agreement

.

At no point it its August 18, 2014 comments does NAI deny our assertion that its proposed business

model would undermine labor standards

. Nor does it deny that this business model violates the

terms of Article 17 bis. The airline’s argument is simply that A rticle 17 bis is not enforceable. As

shown by our comments, as well as those filed by a diverse group of stakeholders on both sides of

the Atlantic, that interpretation is false.3

We urge DOT to uphold its legal obligation to enforce the U.S.

- EU ATA in its totality, and deny

NAI’s application for a permit and exemption.

Sincerely

,

Sara Nelson Sito Pantoja

International President General Vice President

Association of Flight Attendants

- CWA International Association of Machinists and

Aerospace Workers

Harry Lombardo Edward Wytkind

President President

Transport Workers Union of America Transportation Trades Department, AFL

- CIO4

CERTIFICATE OF SERVICE

We certify that we have, on this 18 th day of August, 2014, served the foregoing document on the

persons identified below by causing a copy to be sent by electronic mail:

Reese.Davidson@dot.gov ; steve.morrissey@united.com ; Thomas.bolling@united.com ; dan.weiss@united.com ; hershel.kamen@united.com ; sascha.vanderbellen@delta.com ; chris.walker@delta.com ; Andrea.Newman@delta.com ; mlbenge@zsrlaw.com ; rpommer@atlasair.com ; russell.bailey@alpa.org ;

\ david.semanchik@alpa.org ; jonathan.cohen@alpa.org ; robert.wirick@aa.com ; francis.heil@aa.com ; michael.wascom@aa.com ; howard.kass@aa.com ; jesse.elliot@faa.gov ; douglas.schwab@faa.gov ; nicholas.tsokris@faa.gov ; john.y.chen@faa.gov ; anita.mosner@hklaw.com ; jennifer.nowak@hklaw.com ; nssparks@fedex.com ; gbleopard@fedex.com ; pvs@eurocockpit.be

cc@eurocockpit.be

romanow@pillsburylaw.com ; jennifer.trock@pillsburylaw.com ; peter.nelson@pillsburylaw.com ; Melinda.hernandez@pillsbury.com ; dberg@airlines.org ; jcasey@airlines.org ; kglatz@airlines.org ; CBethke@airlines.org ; edw@ttd.org ; ejames@jamhoff.com ; info@airlineinfo.com ; clytle@portoakland.com ; kgeorge@broward.org ; mrichardson@swapa.org ;5

sshur@traveltech.org ; michael.whitaker@faa.gov ;

otta r.ostnes@sd.dep.no ; david.batchelor@sesarju.eu ; felix.leinemann@eeas.europa.eu ; matthew.baldwin@ec.e uropa.eu ; john.hanlon@elfaa.com ; dhainbach@ggh

- airlaw.com ; Athar.HusainKhan@aea.be ;