1 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 SUBMISSION OF THE EUROPEAN TRANSPORT WORKERS'

FEDERATION AND THE TRANSPORTATION TRADES DEPARTMENT, AFL

CIO (TTD) TO DOT’S AUGUST 4 NOTICE

The European Transport Workers' Federation (ETF), is a labor organization consisting of

trade unions in the transportation industry from the European Union, the European Economic Area and Central and Eastern European countries. ETF represents more than 2.5 million transport workers , among them more than 250,000 civil aviation employees. The Transportation Trades Department (TTD) is a U.S.

- based national labor organization under

the umbrella of the A merican Federation of Labor

- Congress of Industrial Organization s (AFL

- CIO)

, represent ing several million transport workers through its 3 2 member unions

. Specifically, TTD’s private sector aviation unions 1 r epresent the vast majority of employee s at U.S. airlines that would be in direct competition with NAI for international

routes.

The ETF and TTD join in this submission to express our serious objections and concerns

outlined below . As indicated, in add ition to the submissions we have made separately regarding the severe negative impacts that this matter will have on fair competition, jobs and labor rights , we have deep and profound concerns that th e business model being pursued by Norwegian Air International (NAI) raises significant security concerns . Among other things

, we believe that critical policies and regulations adopted following the terrorist attacks of September 11, 2001, by the U.S. and EU to ensure the safety of its citizens could

be at risk

.

1 TTD ’s member unions include the following private sector aviation unions: Air Line Pilots Association, Association of Flight Attendants

- CWA, International Association of Machinists and Aerospace Workers

, and Transport Workers Union.2

At the outset, it should be noted that the pos ition expressed by officials from the Directorate General for Mobility and Transport (D G MOVE ) during its meeting with the U.S. Department of Transpor ta t ion and the Department of State on July 14, 2014

, on the legal meaning and applicability of article 17 bis of the EU

- U

. S

. agreement while considering the exemption and a foreign air carrier permit for N AI raise serious concerns

. While we

welcome the request by the U.S. government to DG MOVE to submit its position on the meaning and th e applicability of arti cle 17 bis "Social dimension

, " we vehemently disagree

with the opinions given by DG MOVE during the meeting

.

Our general and specific objections to the explanation provided by DG M OVE as referenced include the following:

1) DG MOVE does not represent the views of all the European signatories of the EU

- US Air Transport Agreement (ATA)

T he European Commission does not have the mandate or the authority to represent the views of all the signatory member states to the ATA. During the meeting of the European

Co nsultative Forum on 23 July 2014 , several stakeholders including industry and union representatives raised questions and concerns to the European Commission regarding the

business model of NAI. Several member states have indicated their support for the pos ition outlined by these stakeholders . Some of them have expressed in writing their concerns about DG MOVE ’s support of NAI's practices.

2) Article 4 c)

NAI’s interpretation of Article 4 (Authorisation) of the ATA is deeply flawed

. Article 4 reads in part :

" On receipt of applications from an airline of one Party, in the form and manner prescribed for operating authorisations and technical permissions, the other Party shall grant appropriate authorisations and permissions with minimum procedural delay, provi ded: [...] (c) 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 or applications ."

The tortured language construction offered by NAI, taking special note that NAI is

established in Ireland w ithout having any substantial activity in this country, facilitates social dumping 2 , notably by employing aircrew based outside of the EU with the aim to

2 Social dumping is defined as : "practice designe d to take advantage of competition between workers from different regions or sectors. Social dumping is practiced by some employers to take advantage of competition between workers from different regions or sectors. Social dumping is practiced by some empl oyers to hire the least protected workers with the che a pest salary, inferior working conditions, to increase profit margins and prevent or reduce the collective representation of workers. Geographically, this practice is perfectly illustrated by the phenom enon of delocalization/offshoring (the company will look elsewhere for the che a pest labor and less organized). At the sectoral level, the use of (agency)3

circumvent EU mem ber states' legisla tion on social security, taxes and labour, as well as collective agreements. T hat this activity somehow meets the standard s for receipt of operating authorizations set out in Article 4 defies common sense and must be re jected.

Further, i f NAI’s business model is allowed to operate in the trans

- Atlantic marketplace it

would render Article 17 bis meaningless. Article 17 bis, provides: " The parties recognize the importance of the social dimension of the Agreement and the benefits that arise when open markets are accompanied by high labour standards . [...] "

. NAI’s proposed business is premised on an employment model that intentionally avoids the labor standards currently enjoyed by U.S. and European air crews . This is inconsistent with Article 17 bis and contrary to any acceptable notion of “high labour standards

. ” As such, it is unsurprising that NAI’s interpretation of the Agreement would n ullify any implementation or application of the Article.

We understand that aircrew members allegedly based in Thailand spend substantial time flying to and from Europe and within Europe. Their activity raises serious concerns that NAI may be using its crew’s unique situation to circumvent current labour law, social law and collective agreements applicable to aircrew governed by individual EU member states ' statutes, regulations and policies . Regulations 593/2008/EC and 465/2008/EC clearly provide that t he law of the member state where the worker habitually carries out his/her

duties is applicable. In our opinion, this circumvention of the European legislation

undermines labor standards. In addition, it is our understanding that none of NAS experienced and unionized staf f ha ve been offered to fly on NAI aircraft . We also

understand that the company has preferred to hire non

- unionized staff , which also may be

in contravention of Eu ropean policies and legislation.

We also question NAI ’s attempts to satisfy provisions concerning “pri ncipal place o f

business ” as defined in the ATA , because the principal financial functions and operational

control are not exercised from Ireland

. Based on the fact that the International

Confe deration of Trade Unions together with Irish trade unions IMPACT and ALPA have submitted a formal complaint on 4 May 2010 to the International Labor Organization for

breach of ILO Convention No. 98 Right to Organize and Collective Bargaining , we also

think that Ireland could be described as a country of "flag of convenience

. "

3) Interpretation of Article 17 bis of the ATA

Article 17 bis cannot be interpreted in a way that would allow the undermining of labour rights and standards in any way. It is binding and has the same legal strength as other

articles of the A

TA, namely article s 3 and 4. In terms of paragraph one, the second sentence (" The opportunities created by the agreement are not intended to undermine labour

temporary workers, subcontracting, bogus self

- employment, non

- organized workers, precarious

contracts or che a

pest salaries also allows the employer to reduce its personnel costs. There is then, in the name of "competiveness" a downgrading of working conditions, training, health and safety and wages: each company sights unfair competition organized by anoth er company to justify tougher working

conditions and impose more flexibility, wage cuts or a weakening of the welfare of its workers, such as the use of unsafe working practices, which increase the risks of industrial accidents."4

standards or the labour

- relat ed rights and principles contained in the Parties' respective

laws" ) should be interpreted as " shall not undermine

, " i. e. as a mandatory clause. The second part of the sentence relates to " Parties' respective laws " which is a clear indication

to the differ ent jurisdictions of the United States and individual EU member states. Therefore, we cannot accept the Commission ’ s conclusio n that this article can only be assessed jointly. In our opinion, the U.S. is entitled to assess it alone. However, this does

not prevent exchanges during EU

- U

. S

. Joint Committee meetings

.

4) Safety issues (ATA Article s 4 d) & 8 )

According to article 4 d), one of the preconditions to receive authorization is that " the provisions set forth in Article 8 (Safety) [...] are being maintained and administered. " Despite the fact that the Irish Department of Transport dismissed any concerns regarding safety in its letter dated 30 July 2014, 3 we still believe that there are outstanding issues that

should be addressed. This be lief is strengthened by the declaration of Captain S. Colman

to the DOT (ex

- Norwegian Air captain) dated 22 July 2014 that has been submitted to your department (see attachment). In this declaration, he illustrated the complicated nat ure of

his relation wi th NAS/NAI , as well as difficulties when submitting (mandatory) flight safety reports an d the retaliat ory actions from management. We wonder whether European civil aviation legislation provides sufficient safety guarantees for aircrew s based outside of

the EU or the U

. S. The same is valid for self

- employed, such as NAI cabin crew hired through a hiring agency "Adecco" and based in Thailand or flight crew working on individual employment contracts with a Singaporean hiring agency.

5) Security issues (ATA Ar ticles 4 d ) & 9)

In addition to the aforementioned, it is imperative that our serious concerns over U.S. and European Security are addressed.

Following the tragic September 11, 2001, terrorist attacks, new security measures were put in place including extensive background checks of aircrew. Given the ever

- increasing sophistication of new threats we are mindful of any attempts, intentionally or unintentionally, to undermine much needed security measures to protect air crews, the

fl ying public, communities, the industry and, of course, U.S. and European international, national and regional security. In this vein, we have sincere concerns that Thailand

- based

cabin crew s hired through a hiring agency "Adecco" as utilized by NA I (establ ished in Ireland) guarantee the same level of background checks that exist for European and U.S

based aircrew s

. The seriousness of this concern on the overall high level of security of operations between the USA and Europe can not be overstated. In addition , this phenomenon can potentially spread to other regions of the world.

3 L etter of Mr. John J. F earon, Director General of Civil Aviation, Irish Department of Transport, Tourism and Sport to Mr. Paul Gretch, Director, Office of International Aviation, US Department of Transportation5

6) Retaliatory Measures and Dispute Resolution

Finally, we would like to address the irresponsible claims made by some

– most recently in comments filed by the Washington Airports Task Force (WATF)

– that the denial of NAI’s application by DOT could “potentially invite retaliation and a trade war

. ” Thi s is nothing more than fear mongering, and ignores the dispute resolution and arbitration mechanisms built into the Agreement, most notably Article 18. According to the August 4 Notice, DG MOVE even referenced Article 18 as a mechanism for resolving concerns or disagreements between parties over how the Agreement is implemented. Retaliatory measures are a last resort that could come about if differences between parties cannot be resolved through the appropriate consultation and adjudication measures. To suggest that retaliatory actions could result from a decision (as yet not made) by one party before any formal consultation or adjudication process has begun is a threat that undermines the terms of the agreement as were negotiated in good faith between the U.S. and EU.

Respectfully submitted,

_________________________________

Eduardo Chagas, General Secretary European Transport Workers’ Federation Rue du Marché aux Herbes, 105 (bte 11)

1000 Brussels Belgium

__________________________________

Edward Wytkind, President Transportation Trades Department, AFL

- CIO

815 16th Street

, NW Washington, DC 20006

Phone: 202

- 628

- 9262

Fax: 202

- 628

- 0391 Email: edw@ttd.orgANNEX I

– LETTER AND DECLARATION OF CAPT. STEVEN COLMAN

6ANNEX I

– LETTER AND DECLARATION OF CAPT. STEVEN COLMAN

7ANNEX I

– LETTER AND DECLARATION OF CAPT. STEVEN COLMAN

8ANNEX I

– LETTER AND DECLARATION OF CAPT. STEVEN COLMAN

9ANNEX I

– LETTER AND DECLARATION OF CAPT. STEVEN COLMAN

10ANNEX II

– ANSWER OF THE ROYAL NORWEGIAN MINISTRY OF

TRANSPORT AND COMMUNICATION TO PARAT 'S REQUEST FOR

CLARIFICATION OF VARIOUS CIRCUMSTANCES CONNECTED TO NORWEGIAN LONG HAUL (NLH) AVIATION OPERATIONS

11ANNEX II

– ANSWER OF THE ROYAL NORWEGIAN MINISTRY OF

TRANSPORT AND COMMUNICATION TO PARAT 'S REQUEST FOR

CLARIFICATION OF VARIOUS CIRCUMSTANCES CONNECTED TO NORWEGIAN LONG HAUL (NLH) AVIATION OPERATIONS

12ANNEX II

– ANSWER OF THE ROYAL NORWEGIAN MINISTRY OF

TRANSPORT AND COMMUNICATION TO PARAT 'S REQUEST FOR

CLARIFICATION OF VARIOUS CIRCUMSTANCES CONNECTED TO NORWEGIAN LONG HAUL (NLH) AVIATION OPERATIONS

131415

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.was com@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 ; je nnifer.nowak@hklaw.com ; nssparks@fedex.com ; gbleopard@fedex.com ; pvs@eurocockpit.be

cc@e urocockpit.be romanow@pillsburylaw.com ; jennifer.trock@pillsburylaw.com ; peter.nelson@pillsburylaw.c om ; 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 ;16

mrichardson@swapa.org ; sshur@traveltech.org ; michael.whitaker@faa.gov ; ottar.ostnes@sd.dep.no ; david.batchelor@sesarju.eu ; felix.leinemann@eeas.europa.eu ; matthew.baldwin@ec.europa.eu ; john.hanlon@elfaa.com ; dhainbach@ggh

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