21 SCOPE VIOLATIONS THIS CONTRACT CYCLE

As of December 2019, Delta had committed an astounding 21 Scope violations so far this contract cycle. Those include 10 violations related to the Korean Air, 7 violations related to Aeromexico, 3 violations related to WestJet, and 1 violation related to the A350 delivery. As of January 2020, 16 of those 21 violations are currently the subject of pending grievances.

Forbes recently covered these concerns: Delta Joint Ventures Have Led To Scope Assault “Avalanche,” Pilots Say

THREE HEARINGS (More to come)

As of January 2020, three arbitration hearings have been held, covering a total of 12 Scope violations. These include 1 violation related to the A350 Delivery, 8 violations related to the Korean JV, and 3 violations related to the Aeromexico JV. In each case, the arbitrators sustained ALPA’s grievances and confirmed that the Company violated the Scope clause.

The A350 Delivery arbitration has been completed, and a final award was issued in the Delta pilots favor.

With the Korean JV and Aeroméxico JV arbitrations, ALPA and the Company agreed the arbitration would be split, or bifurcated, into two parts: the liability phase and the remedy phase. In both cases, arbitrators heard liability arguments and, in the Fall of 2019, issued liability awards confirming that the Company in fact committed the various Scope violations ALPA had alleged in the grievances. Now that those violations have been proven, the cases will move into the second phase of the proceeding to determine the what the remedy will be.

In addition to the grievances currently in arbitration, ALPA has three more pending grievances for Scope violations related to the Aeroméxico JV and two more pending grievances for Scope violations related to the Korean JV. Those grievances are currently on hold, or “tolled”, while initial Korean JV and Aeromexico JV cases proceed, and will go to arbitration at a later date.

ONE SOLUTION – EQUITABLE GROWTH

ALPA is committed to enforcing our current contract language. Grievances both memorialize violations and create legal consequences beyond a simple apology.

However, without contractual protections for equitable growth or a production balance, Delta isn’t required to keep Delta growth on pace with JV partner growth. At a minimum, equitable growth would mean that Delta pilots share fully in the growth generated by Delta’s JV partnerships and are not left behind.

That’s why going forward the Delta MEC is seeking equitable growth language in Delta’s JV agreements and engaging Delta to secure stronger PWA Scope protections. Ultimately, Delta must contractually commit to equitable growth for Delta pilots in order to ensure that Delta pilots receive their fair share of any new international flying generated through the JVs.

Korean Air JV, 10 Scope Violations

In May 2018, Delta launched its joint venture with Korean Air. As of December 2019, Delta had committed a total of 10 Scope violations related to the Korean JV.

Delta first violated the PWA when it finalized the Korean JV agreement. Section 1 E. 10. of the PWA requires that, before the Company finalizes a new JV or amends an existing JV, it must meet with ALPA to try to negotiate a production balance or other PWA terms specific to that JV. In the case of the Korean JV, the Company and met with ALPA negotiators for the first time only after the venture had actually been implemented.

Unless Delta and ALPA agree to a production balance or other PWA terms specific to the Korean JV – something they haven’t done, the Company is required to comply with certain default rules for “Permitted Arrangements with Foreign Air Carriersfound in Section 1 E.  One of those default rules is Section 1 E. 8., which imposes a block hour floor that prohibits Delta from reducing its flying in certain country-to-country markets below what it flew in the twelve months prior to the JV. In the case of the Korean Air JV, Section 1 E. 8.’s block hour floor protects Delta flying between the U.S. and Korean Air’s home country of South Korea. In addition, because Korean Air offers nonstop service between the U.S. and Japan, Section 1 E. 8.’s block hour floor also protects Delta’s U.S.-Japan flying. Due to reduced Delta flying the U.S. and Japan, Delta was in violation of Section 1 E. 8. minimum block hour requirements from the time that the JV went into effect.

 

ALPA filed grievances challenging the Company violations of Section 1 E. 10. and Section 1 E. 8. The first four grievances, containing a total of eight alleged Scope violations, were combined into one case for the purposes of arbitration. A liability hearing was held in February 2019.  In September 2019, the arbitrator issued a liability award that sustained ALPA’s grievances, finding the Company liable for one violation of Section 1 E. 10 and seven violations of Section 1 E. 8. The liability decision also resolved a dispute between ALPA and the Company regarding how to measure Section 1 E. 8. compliance. The next phase of proceeding will be to determine the remedy for the eight Scope violations confirmed in the liability award.

 

While the liability ruling was pending, ALPA filed six additional grievances for alleging six additional violations of Section 1 E. 8. in connection with the Korean JV.  These subsequent grievances were “tolled” or temporarily placed on hold. Under the measurement method adopted by the arbitrator, the Company violated Section 1 E. 8.’s Korean Air JV block hour floor for the first nine compliance periods that the JV was in effect and would be considered back in compliance as of the period ending April 30, 2019. ALPA subsequently withdrew the four Korean JV grievances that covered compliance periods ending in April 2019 or later. The two additional Korean JV grievances the cover time periods prior to April 2019 are still pending and will be arbitrated a later date.

 

ALPA continues to closely monitor the Company’s compliance with Korean JV block hour minimums. Compared to 2013, today’s Delta Pacific block hours are down 16%. Although several recently-added Pacific flights reverse the troubling downward trend of the last few years, 2019 Pacific flying still lags 2013-levels by 100 block hours per day. Check out the Scope Quick Take – Pacific Block Hours for a graphic

 

 

Korean Air-Related Violations

 

Violation Date

PWA

Grievance

Hearing

Liability Finding

What’s Next?

1

May 2018

1 E. 10.

18-22

Feb 2019

sustained

Remedy

2

Jul 2018

1 E. 8.

18-22

Feb 2019

sustained

Remedy

3

Aug 2018

1 E. 8.

18-22

Feb 2019

sustained

Remedy

4

Sep 2018

1 E. 8.

18-22

Feb 2019

sustained

Remedy

5

Oct 2018

1 E. 8.

18-22

Feb 2019

sustained

Remedy

6

Nov 2018

1 E. 8.

19-03

Feb 2019

sustained

Remedy

7

Dec 2018

1 E. 8.

19-04

Feb 2019

sustained

Remedy

8

Jan 2019

1 E. 8.

19-08

Feb 2019

sustained

Remedy

9

Feb 2019

1 E. 8.

19-14

Tolled

10

Mar 2019

1 E. 8.

19-15

Tolled

11

Apr 2019

1 E. 8.

19-16

Withdrawn

12

May 2019

1 E. 8.

19-18

Withdrawn

13

Jun 2019

1 E. 8.

19-19

Withdrawn

14

July 2019

1 E. 8.

19-20

Withdrawn

AEROMEXICO Codeshare & JV: 7 Scope Violations


In March 2017, Delta launched its joint venture with Aeroméxico. As of December 2019, Delta had committed a total of 10 Scope violations related to the Aeromexico JV.

 


Delta and ALPA have not agreed to production balance or other contract terms specific to the Aeromexico JV. Because of that, the Company is required to abide by the conditions of Section 1 E. of the PWA, which lays out the default rules for “Permitted Arrangements with Foreign Air Carriers.” One of those default rules is Section 1 E. 2., which puts limits on how many passengers Delta can book on flights flown by foreign air carriers. Delta has now breached the Section 1 E. 2. limits multiple times on flights flown by Aeromexico.

 

In July 2016 (before the JV started), Delta passengers occupied more than 40% of the total passenger seats on certain Aeroméxico flights, which violated Section 1 E. 2. a.  Ultimately, after full consideration, and with the understanding that violations of this kind would not happen again, no grievance was filed.

 

In December 2017, the average number of Delta passengers on certain Aeroméxico flights exceeded 75 passengers, which violated Section 1 E. 2. c. In March 2018 and June 2018, Delta passengers occupied more than 40% of the total passenger seats on certain Aeroméxico flights, which violated Section 1 E. 2. a.  ALPA grieved all three of these violations, which were combined into one case for the purposes of arbitration. A liability hearing was held in March 2019.  In October 2019, the arbitrator issued a liability award confirming all three Scope violations. The next phase of case will be to determine the remedy for the three violations confirmed in the liability ruling.

 

While the first set of Aeromexico JV grievances were pending, the Company committed several additional violations of Section 1 E. related to the Aeromexico JV. In December 2018 and January 2019, the Company did not perform the minimum required block hours of Delta flying between the U.S. and Mexico required by Section 1 E. 3.  In addition, for the three-month period ending February 28, 2019, the Company did not perform the minimum required block hours of Company flying between the U.S. and Mexico required by Section 1 E. 8. ALPA grieved all three of these violations, which will go to arbitration at a later date.

 


ALPA continues to closely monitor the Company’s compliance with Scope requirements related to the Aeromexico JV.

 

 

 

 Aeromexico-Related Violations

 

 

 

Violation Date

PWA

Grievance

Hearing

Liability Finding

What’s Next?

1

Jul 2016

1 E. 2. a.

not grieved

2

Dec 2017

1 E. 2. c.

18-07

Mar 2019

sustained

Remedy

3

Mar 2018

1 E. 2. a.

18-09

Mar 2019

sustained

Remedy

4

Jun 2018

1 E. 2. a.

18-17

Mar 2019

sustained

Remedy

5

Dec 2018

1 E. 3.

19-09

Tolled

6

Jan 2019

1 E. 3.

19-09

Tolled

7

Feb 2019

1 E. 8.

19-17

Tolled

WESTJET Codeshare & JV: 3 Scope Violations

 

Although Delta has not yet commenced its proposed JV with WestJet, as of December 2019, Delta had committed a total of 3 Scope violations related to its existing codeshare relationship.

 

Section 1 E. of the PWA lays out the default rules for “Permitted Arrangements with Foreign Air Carriers.” One of those default rules is Section 1 E. 2., which puts limits on how many passengers Delta can book on flights flown by foreign air carriers.

 

In July 2016, May 2017 and July 2017, Delta passengers occupied more than 40% of the total passenger seats on certain WestJet flights, which violated Section 1 E.2.a. Ultimately, after full consideration, and with the understanding that violations of this kind would not happen again, no grievances were filed.

ALPA continues to closely monitor the Company’s compliance with Scope requirements related to its partner flying with WestJet.

 

 

WestJet-Related Violations

 

 

Violation Date

PWA

Grievance

Hearing

Liability Finding

What’s Next?

1

Jul 2016

1 E. 2. a.

not grieved

2

May 2017

1 E. 2. a.

not grieved

3

Jul 2017

1 E. 2. a.

not grieved

A350 Delivery: 1 Scope Violations


In November 2017, after taking delivery of the aircraft in Toulouse, France, the Company chose to have Airbus pilots fly the Delta A350 aircraft to the United States. In response, ALPA filed MEC Grievance 17-20 over the Company’s use of non-Delta Air Lines pilots to fly a Delta A350. Although the violation was not in dispute, the grievance was necessary to determine the appropriate remedy for the Company’s intentional violation of Section 1 C. of the PWA.

In October 2018, a final award was issued in the case. The arbitrator sustained ALPA’s grievance, ordered the Company to cease and desist, and awarded the Association the full amount of the costs and expenses it incurred in litigating the grievance.

In his decision, the arbitrator explained that “[t]he Scope clause is among the most important of the promises exchanged by the parties in the process of collective bargaining” and is intended to be “inviolab[le]”—meaning it cannot simply “be ignored in a case where … the price of compliance is too high.” Delta Airlines and ALPA, No. 17-01, at 7, 8, 9. (Oct. 1, 2018). The arbitrator found that the Company’s intentional Scope violation “impacted the entire bargaining unit” and noted that “a repeated violation of this nature” may well support punitive damages. Id. at 8 & n. 9.