Episode 50 - ALPA National and Why Scope Is Section One

Why Scope Is ‘Section One’: ALPA Lawyer Explains Protecting WestJet Pilot Jobs in Next Negotiations

WJA MEC Chair Captain Jacob Astin and Vice-Chair First Officer Barret Armann report on three days of meetings at ALPA headquarters in Virginia with ALPA legal, communications, and subject-matter experts to align support for upcoming negotiations. The episode features an interview with ALPA senior attorney Evin Isaacson, who explains all about scope.

Overview:

00:00 Intro
00:21 Three Days of Support
01:09 Negotiations Survey
02:01 Scope Intro
03:26 Scope Basics Explained
04:08 Outsourcing and Alter Egos
07:26 Codeshares and Cabotage
10:37 Minimum Crew and Wet Leasing
14:41 Fixing Gaps and Enforcement
18:49 Widebody Growth and Partners
27:24 Career Impact and Takeaways
29:43 Final Message on Scope

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Transcript

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Barret Armann: 0:07

Hey, good afternoon. Welcome to our latest podcast. We're down in, uh, Virginia at ALPA headquarters. We came down here with the executive, uh, to discuss, uh, I guess options, what's available to us. Support, increase support,

Jacob Astin: 0:21

yeah. Days. Tell us a little bit about three days of, uh, meetings with, um, ALPA legal, ALPA SMEs, uh, subject matter matter experts on, uh, what we have upcoming with our negotiations. Yeah. With, you know, legal support, comm support, uh, and how all the pieces fit together for the WestJet pilots. And, um, it was a really good week. Really good week, uh, down here. It was your first time down here.

Barret Armann: 0:44

It was. It was. It's really good.

Jacob Astin: 0:46

What do you think?

Barret Armann: 0:46

Quite enjoyed it. Yeah. I think we got exactly what we needed. Super impressed. Uh, Andrew Shostack actually said message received clearly. So

Jacob Astin: 0:56

track, so lots of changes incoming. Yeah. Uh, for, um, support for the WestJet, MEC, uh, in Calgary and across all our bases for all the pilots at WestJet. And, uh, really looking forward to, uh, the upcoming year. Um, as we do this, um, we have a. Negots survey that we're launching. So please, uh, looking for all pilots to fill out that survey. Uh, and, and make sure that your priorities are heard, uh, for the MEC to direct our negotiations, um, for things that you need in this upcoming, um, round of negotiations.

Barret Armann: 1:33

And I think you've got an interview

Jacob Astin: 1:35

I have an interview coming up. It's with Evin Isaacson, who is an ALPA lawyer specializing in scope language within collective agreements.

Barret Armann: 1:45

Excellent. Let's get to it.

Evin Issacson: 2:01

I'm a senior attorney in the legal department. I have been with ALPA since 2018. I've been working on pilot scope issues since 2013 and I'm passionate about scope because. I do think that it is the foundation of all of the collective bargaining that we do, and this is where we have seen so many explosions of management creativity. Um, and so there's a little bit of a cat and mouse game, um, but there's also. Elements of understanding the economics of the entire airline industry and trying to make sure that we're protected as that industry evolves. And so it is complex and it is hard, and it is so important and it feels foundational. And I've had the privilege of working with a number of different pilot groups and being part of. Numerous scope arbitrations and scope negotiations over the years, and I am looking forward to continuing to do so with the WestJet pilots.

Jacob Astin: 3:15

So I'll just ask you a bunch of questions that we've kind of gone through a few of 'em here and, um, kind of go from there. Her, Evin.

Evin Issacson: 3:26

Hi,

Jacob Astin: 3:27

uh, you're a lawyer who works specifically on pilot scope contracts. Uh, before we go anywhere else, in the simplest terms possible, what is scope in a pilot contract and why should WestJet Pilots care

Evin Issacson: 3:39

Scope is section one for a reason. It's what protects pilots, job security, and ensures that the. Terms and conditions of the collective bargaining agreement that you negotiate for actually apply to the flying done by the airline.

Jacob Astin: 3:57

And like, if you could walk us through like a real life, uh, example, like what actually happens to pilots at an airline when their scope protections are weak or missing? Like what does that look like in practice?

Evin Issacson: 4:08

We have learned over the years that managements are creative in trying to figure out ways to evade scope protections. So. We try to draw the broadest umbrella possible for what flying is covered by the agreement, and we try to do it in the simplest terms so that that way you don't get shell games. We have seen. Uh, outsourcing to regional carriers, we've seen exceptions that were granted for puddle jumpers turn into huge threats to pilot job security. When the jet engine enabled cross country flying on small jets, we have seen managements create new holding companies that are wholly owned by the same company and set up alter egos that. Try to do the flying in place of the pilots on the seniority list at the carrier in question. There is no limit to management creativity here, and in the absence of contractual protections, you better believe that they are going to try to find a way to evade. The protections that our pilots bargained for

Jacob Astin: 5:27

kinda sounds somewhat, somewhat familiar. So, WestJet pilots are often told, don't worry, the company would never do that. How do you respond when pilots say they trust management and don't think strong scope language is necessary?

Evin Issacson: 5:40

I am so glad to hear that some pilots have a really good relationship with management. That said, I'm a lawyer and we are in the business of making sure that we trust, but verify and have enforceable contract provisions that force management to put their money where their mouth is essentially in the absence of strong scope protections. Well-meaning managements can change. Companies get sold. There are mergers, there are new people in charge, and so if management was going to be growing the airline in a way that shared that growth with the pilots who are employed by that airline, it should be no problem for them to put those guarantees in contract language.

Jacob Astin: 6:35

So further that what is an alter ego airline and why is an alter ego prohibition such a critical part of a pilot contract?

Evin Issacson: 6:44

This is that, uh, holding company shell game that I mentioned before. Essentially, managements can use different corporate forms and different holding companies and subsidiaries and affiliates to. Have another technical corporation be performing flying that benefits the airline in question or that flies on behalf of the airline in question. And what you don't wanna see is management playing those corporate, corporate shell games in order to evade the protections in a collective bargaining agreement.

Jacob Astin: 7:25

No, that makes sense. Um, so WestJet is continuously expanding internationally through code shares and interline partners. How do code share and inter international protections in a contract stop that growth from effectively coming at the expense of west of pilot jobs?

Evin Issacson: 7:42

There may be good reasons for an airline to have partnerships with international carriers, um, in order to grow an airline to be able to, uh, get. Traffic to places that they wouldn't be otherwise able to serve. That said, it is critical that that benefit not come at the expense of career and job opportunities for pilots. So the purpose of scope protections that address these kinds of international relationships is to ensure that if an airline is growing. Because of international traffic that the pilots employed by that airline see a fair share of that growth. And there are any number of tools that have been worked out over time that can be used to try to put those protections. In place. They take a lot of different forms and they vary a lot based on the business model of the airline in question, but it is critical to ensure that those sorts of airline cooperation relationships don't effectively become outsourcing.

Jacob Astin: 9:01

Makes sense. Um, cabotage, uh, is a word most pilots have never heard. Can you explain what it is? And why a pilot group flying internationally like WestJet now does needs explicit sabotage protections in their contract.

Evin Issacson: 9:15

So cabotage is about the carriage of passengers within a particular country, and it is one of the reasons why you can't have a. Foreign carrier that is based in Thailand and employs, uh, pilot staffed by a Singaporean staffing agency, fly from Toronto to Calgary. That pilot flying should be done by pilots of a Canadian carrier. What I would say is if you've got a foreign carrier who's coming in and then able to pick up new passengers on the ground within Canada and fly them to another place within Canada that. And WestJet can have a relationship with that carrier that has the potential to enable WestJet to make money off other carriers flying within Canada, which is of course the very core of what any flag country airline is supposed to be doing themselves.

Jacob Astin: 10:35

That does make sense. On a different topic, what is minimum crew complement clauses and why does ALPA consider it essential, not just for safety, but for the future of pilot jobs as automation advances?

Evin Issacson: 10:49

So I, I'm not the. Expert in reduced crew operations, but we have been putting them in pilot scope clauses because it is so core and so fundamental to what you guys do as pilots. You guys have made a judgment call that this belongs in section one, and that all flying performed by the airline needs to be done with that minimum crew compliment. The other consideration from a job security perspective is those relationships with other airlines and other airlines that are under different regulatory structures that might not have those protections. So what you don't want is for an airline in a country that has a minimum of two pilots in the cockpit to then partner with. An airline in another country that can get away with one pilot and then they've got far reduced labor costs. And you can just imagine the kind of labor arbitrage that could result when you could outsource to an airline that only needs to pay to have one pilot there on the flight deck. It

Jacob Astin: 12:07

makes sense. Um, on a different topic, wet leasing, uh, I'm sure a lot of our pilots at WestJet are familiar with the term, uh, which is renting another airline's plane and crew. Can you explain when that's a legitimate tool for an airline versus when it becomes a scope problem and what good contractual guardrails look like?

Evin Issacson: 12:26

Sure. Um, it's a really good question because there are sometimes legitimate reasons to wet lease in this particularly happens. Um. For example, when an airline can't hire fast enough, can't get planes on property fast enough, or, uh, when they have unexpected fluctuations in demand that they need to ramp up quickly, but can't. Do. So it's particularly an issue in the cargo world where you might have a contract come in and it will enable you to secure a, a client for the long haul, no pun intended. Um, and so it's just a short stop gap measure while the airline can grow to meet that demand. We see it less often in the passenger world because you schedule. Passenger flights so far out in advance that you should be able to plan for demand. But there are sometimes unexpected situations where there might be unexpected attrition. There might be, uh, unexpected aircraft, aircraft groundings, so there might be legitimate reasons why you would wanna do that. That said, it should be a stop gap measure, and it should not be part of a long-term business plan. As for when it becomes a scope problem, my perspective as a lawyer is that it becomes a scope problem the minute it exceeds the contract language in question. So even if there might be a legitimate reason why a management would want to wet lease, they need to negotiate for that with our pilots. And so if they want to do it for a reason, that's not permitted under the contract or is. Uh, for a duration that exceeds that permitted by the contract, that's a problem. And we want management to engage with us. We want to be reasonable, but every single piece of this has got to be a negotiated agreement between the parties, and then management needs to honor that commitment.

Jacob Astin: 14:41

If you were reviewing WestJet's current scope language as their legal counsel. What would be the first thing that jumped out at you as the most urgent gap to fix and why?

Evin Issacson: 14:53

Well, so I am not gonna say anything that would breach attorney client privilege here. So let me just speak in some general terms. You guys did really hard work in the last contract cycle to deal with Swoop, um, and a number of those unique challenges, however. There are always opportunities for improvement and there are opportunities for addressing what the anticipated next stage of WestJet's development is. So we have seen some trends among carriers with whom. WestJet frequently partners including Delta, including KLM, air France in terms of using new tools for cooperation. And we want to make sure that those are adequately addressed in the contract. Uh, and I say that without making a judgment call about what we believe we already own, because that's gonna be a legal analysis, but. When we are going through the contract to identify priorities, those new evolutions in airline cooperation are something that we're gonna keep close in mind.

Jacob Astin: 16:23

Some good information. What happens when a company violates a scope clause? WestJet's contract currently has no compensatory damages language. Can you explain what that means in practice? If there's a violation?

Evin Issacson: 16:36

Let me speak sort of in general terms about enforcement. Enforcement has a number of different goals, right? You wanna hold. The company accountable to the language of the contract. You want to ensure that the pilots and the association have been made whole for those damages. And you wanna make sure that it's not just factored in as the cost of doing business, um, but that it actually has some kind of deterrent effect. All of those things are legitimate. Goals for negotiation, but they are gonna need to be negotiated. Um, and there may be cases where we think that we have negotiated something and an arbitrator doesn't seem to agree with us, which is one of the situations that WestJet has found. The WestJet pilots have found themselves in. There are also alternative means for contract enforcement. For example, you can bargain for automatic penalties that kick in without having to go to arbitration. Those can be monetary, but they can also be things like in-kind remedies. And when it comes to scope, it's often a challenge to identify for an arbitrator exactly who has been harmed and show. How impactful that harm is across the association, because management is gonna argue, oh, it was just one block hour here or there. So sometimes we find that in kind remedies like saying, Hey, you were over this limit by one aircraft next month you need to be under by two. Those might be preferable in certain circumstances. So when we go into this next contract negotiation section, that's one of the elements of the contract we're gonna be looking at and looking at new strategies that serve the goal of ensuring that the bargains that we negotiated for are honored by the company.

Jacob Astin: 18:49

So WestJet's now flying to Europe and Asia with its own widebody fleet. Uh, does the scope language of pilot group negotiated for domestic carrier automatically cover that international flying or are there new vulnerabilities that open up?

Evin Issacson: 19:04

So we. I like to say that we are concerned both about flying by the company as in terms of which parts of the corporate holding company or related corporations are flying. And so if and if it's flying on the company's aircraft. It's very clearly flying by the company, and that can apply both domestically and internationally. There's also flying for the company where there are arrangements between one employer carrier and other external airlines. Sometimes those look like outsourcing relationships or subcontracting, but sometimes they can look like things like joint ventures or other sorts of, uh. Uh, forms of cooperation. And so one of the things that we're gonna be looking at is whether we are comfortable with how broadly that umbrella has been drawn in the WestJet contract

Jacob Astin: 20:09

so going onto to something that's a little bit more concrete, um, WestJet has roughly seven wide body aircraft and over 150 narrow bodies. Meanwhile, condor Airlines, a German leisure carrier, flies directly into Calgary. Our home base, WestJet sells seats on that flight. WestJet pilots don't fly to Germany at all. How is that possible, and what does strong scope language do to prevent that kind of arrangement from expanding?

Evin Issacson: 20:36

This isn't exactly the sort of issue that we wanna be looking at. If a airline is growing, we wanna ensure that its pilots are getting a fair share of that growth. And so what we wanna do is first of all, make sure that those sorts of relationships are covered. By our scope clause and then place reasonable limits on them that both prevent harm from the pilots to the pilots from those relationships, and give pilots a fair share of that growth. So there are different mechanisms that we can bargain to figure out how best to address your pilot's concerns. With respect to those sorts of relationships. But the key and the underlying philosophy of scope is that if the airline is benefiting and if the airline is growing, they should be doing that using our pilots. And our pilot should be doing a fair share of that flying.

Jacob Astin: 21:41

So a WestJet pilot, you know, sitting on reserve in Calgary, looking out the window and, uh, seeing a condor, A330 operate the very flying they should be bidding on like what? Specific language would stop something like that.

Evin Issacson: 21:55

Um, it really depends on the circumstances, and I know that's a very lawyerly answer, but there are any number of different ways you can achieve that result. Um. And so I don't think we need to lock ourselves into a particular approach. The the key is the underlying philosophy of how do we make sure that if WestJet is growing, that our pilots are having those opportunities.

Jacob Astin: 22:29

So with less than 5% of our fleet, even being wide bodied, you know, a WestJet pilot's career, earnings jump significantly when they upgrade to a wide-body captain seat. If the company can keep satisfying international demand through interline and code shared partners, instead of buying more wide bodies, what incentive do they have to grow that fleet and how does that scope language change that math?

Evin Issacson: 22:52

So looking at those potential situations of labor arbitrage, where can they make money off other pilots? Flying is exactly. What the exercise of scope analysis is intended to look at. So what we are gonna do is take every one of those scenarios and say, look, where is WestJet growing here? And where does WestJet seemingly want to grow, and how can we ensure that our pilots see a fair share of that growth? That can happen in any number of different scenarios, and ultimately it's gonna be your guys' priorities and the negotiating committees, uh, deftness that figure out where they wanna put the bulk of their bargaining capital. But that is certainly something that. Uh, we should be thinking about actively and figuring out how to ensure that the pilot's interests are served in connection with those kinds of relationships.

Jacob Astin: 24:00

So the last time WestJet ordered, um, 787s, they received only about a third of them. And then we've had seven for a number of years now. Um, they've announced that they're ordering more 787s. So what type of scope language would WestJet pilots need? So they actually receive the planes, not potentially just selling the slots to another carrier.

Evin Issacson: 24:26

We are always going to. Be in a situation where we don't run the airline, we don't decide if it's going to grow and we can't make them receive particular orders. What we can do is say, if you're gonna grow in a particular direction, grow with our pilots. So they get to decide how they want to move their business model forward, but we get to say, yeah, and we're coming too. So if they don't wanna get those wide body deliveries, great. Then you're not gonna, then we wanna make sure that you're not bringing in wide body revenue generated by some other pilots who aren't on the WestJet seniority list. And that's sort of where the link comes in. Management decides where it's gonna take the airline, and we need to bargain protections that ensure that the pilots on our seniority list come with in connection with those. Efforts

Jacob Astin: 25:24

and that makes sense.'cause right now WestJet management has paused all hiring and pilot upgrades at the same time, they're publicly announcing new interline partnerships regularly from a that same pilot sitting at home on reserve, not getting upgraded, watching WestJet and hand more flying to foreign partners. What does that tell us about where scope fits into these negotiations and what contractual tool would have prevented this situation?

Evin Issacson: 25:52

It's hard to second guess the priorities from the past because there was a crocodile closer to the canoe at that point, right? But we can look at where we see WestJet going, going forward and figure and figure out where there are potential vulnerabilities that we want to address. So essentially. There is an opportunity to address those particular sorts of relationships in a more fulsome way. Now, some relationships and some versions of those relationships pose less of a threat to our pilot groups than others. And so for every single carrier, we're gonna be doing a particular specific. Risk analysis, looking at the full panoply of types of relationships that we've seen across the airline industry, as well as looking into the indicators in the industry about where we see evolution that has the potential to increase the risk of certain kinds of partnerships. And so we have seen that evolution, um, in new and surprising ways and. Tools that we used to think were less of a threat to pilot jobs and job security are being used in new ways that we consider to be more of a threat.

Jacob Astin: 27:24

So a junior WestJet pilot might be thinking scope is an issue for management and the union executive, not me. What would you say to that pilot about how scope directly affects their personal career over the next 20 years at WestJet?

Evin Issacson: 27:41

The pilot profession is so unique in its reliance on seniority. You get your career opportunities by staying with your carrier for the long haul, and so that means that your career is directly impacted by how much flying and growth stays in-house. And so scope becomes essential to that to ensure that as the airline grows, the pilots on the seniority list who have dedicated their careers and thrown their lot in with this airline, see that growth and those career opportunities as well.

Jacob Astin: 28:31

A hundred percent. Um, ALPA has negotiated scope language for major carriers across North America for decades. Is there a negotiating win a clause or a concept that you're most proud of that you think every pilot group should be fighting for?

Evin Issacson: 28:44

Every single airline is different and every single pilot group's needs and priorities are different, but I do think that the general framework that we have developed over decades where we draw. The umbrella of what flying is covered by a collective bargaining agreement as broadly as possible, and then carve out tailored exceptions that meet the particular needs of the particular airline. And the priorities of that particular pilot group is a really powerful approach, and it's one that is the bedrock. Of all of our scope negotiations. So we always wanna be in a position where we are drawing that pool of included flying with as much breadth and robustness as possible.

Jacob Astin: 29:43

Final question, if you could give WestJet pilots one message to take away from this conversation, one thing you want them to understand about Scope before they vote on their next contract, what would that be?

Evin Issacson: 29:56

I would say that it is section one for a reason, and that all of the other elements in the collective bargaining agreement are incredibly important, but they all stand on the foundation of section

Jacob Astin: 30:14

well, thank you so much for taking the time today to take out of your lunch break to chat with me.