Invoking the Force Majeure Clause: Oil Taking Its Toll

...and Thinking About Northwest - Delta

As I prepared to write this week, I had outlined a piece around the NCAA basketball tournament generally and Selection Sunday specifically. I was going to talk about how the Delta-Northwest deal, destined for a #1 seed a month ago had become a “bubble” deal over the past month because of a less than stellar end to the conference schedule and “one and done” in the conference tournament. And then I was prepared to place them in the last 4 teams out group.

But rather than just isolate Delta-Northwest, I think it is time for the industry to think about consolidation in yet another way. Typically we think about consolidation as two entities combining through merger activity. But there is financial consolidation as well. It is similar to what we experienced during the 2002-2006 period where an industry contracts on its own volition. It is probably time to begin another round of contraction as the price of oil makes it very difficult for the industry to maintain its current service offerings.

Introduction to Force Majeur for Those on Capitol Hill
and a Refresher for US Airline Labor

From where I sit, the NCAA tournament will make great theater as always but will pale in news as to what I see coming for the US airline industry. In my last blog post, I purposefully left the piece hanging on an issue for labor and the politicians to seriously consider: “Politicians and labor should think real hard about the fallout that could stem from the current economic environment [read to include high oil prices] versus what the perceived fallout could be in a consolidation scenario”.

As the market opened this morning, oil traded near $112 per barrel. Whereas the price has pulled back from those highs, it is becoming clearer that oil is going higher as the highs get higher and the lows get higher. Heeding warnings from the industry that capacity will be closely examined at these prices, I began to write this piece.

Then as I was writing, I did my usual check of the headlines as the day wore on. In one check of the day’s news, I read, as everyone should when you are not reading here to steal a Maxon line, a blog post by David Field of Airline Business on his blog named appropriately Left Field. Mr. Field cites quotes directly from Delta’s Anderson, Northwest’s Steenland and Continental’s Kellner each questioning the size of their respective networks in the face of $105 per barrel oil.

Defining Force Majeure

Typically we do not like to talk about force majeure issues in the industry, but I am thinking it is time. Wikpedia defines force majeure as:

Force majeure (French for "greater force") is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as war, strike, riot, crime, act of nature (e.g., flooding, earthquake, volcano), prevents one or both parties from fulfilling their obligations under the contract. However, force majeure is not intended to excuse negligence or other malfeasance of a party, as where non-performance is caused by the usual and natural consequences of external forces (e.g., predicted rain stops an outdoor event), or where the intervening circumstances are specifically contemplated.

Time-critical and other sensitive contracts may be drafted to limit the shield of this clause where a party does not take reasonable steps (or specific precautions) to prevent or limit the effects of the outside interference, either when they become likely or when they actually occur. A force majeure may work to excuse all or part of the obligations of one or both parties. For example, a strike might prevent timely delivery of goods, but not timely payment for the portion delivered. Similarly, a widespread power outage would not be a force majeure excuse if the contract requires the provision of backup power or other contingency plans for continuity.

A force majeure may also be the overpowering force itself, which prevents the fulfillment of a contract. In that instance, it is actually the Impossibility defense.

The understanding of force majeure in French law is similar to that of international law and vis major as defined above. For a defendant to invoke force majeure in French law, the event proposed as force majeure must pass three tests:

Externality

The defendant must have nothing to do with the event's happening.

Unpredictability

If the event could be foreseen, the defendant is obligated to have prepared for it. Being unprepared for a foreseeable event leaves the defendant culpable. This standard is very strictly applied.

Irresistibility

The consequences of the event must have been unpreventable.

A Non-Lawyer Discussion of Force Majeure

Force majeure (French for "greater force") is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as war, strike, riot, crime, act of nature (e.g., flooding, earthquake, volcano), prevents one or both parties from fulfilling their obligations under the contract.

Name any airline that spent time in bankruptcy and was required to file a plan of reorganization that correctly estimated the price of oil in that plan. United assumed $55 per barrel and that was $50+ per barrel ago. Northwest just recently emerged and it assumed oil $40+ per barrel ago.

Based on the assumed price per barrel of oil, contracts were entered into with the regional affiliates of the major carriers. The price of oil has long been described an uncontrollable expense for the airline industry. Is this an act of nature, I do not know. What I do know, is that this rise in the price of oil is beyond the control of the industry. Moreover, this recent price push makes oil more expensive than it was on an inflation adjusted basis in the early 1980’s and we know that the period will always be defined as an oil crisis.

However, force majeure is not intended to excuse negligence or other malfeasance of a party, as where non-performance is caused by the usual and natural consequences of external forces (e.g., predicted rain stops an outdoor event), or where the intervening circumstances are specifically contemplated.

There is no negligence here by the industry or malfeasance by anyone. This is the market at work. The causes for the oil price increases are many but cannot be isolated to any one catalyst. And none of this is as predictable as rain on a hot summer night.

Time-critical and other sensitive contracts may be drafted to limit the shield of this clause where a party does not take reasonable steps (or specific precautions) to prevent or limit the effects of the outside interference, either when they become likely or when they actually occur.

To say that the industry has not taken reasonable steps to prevent or limit the effects of the outside interference would ignore the painful attempts to address cost structures that were simply not sustainable. As Jamie Baker pointed out last week in his research note, since 2002, the price of oil will have increased some $25 billion for the US industry while savings from labor over the same period amounts to $7 billion.

Through the restructuring period and practices that continue today, the industry cut costs to combat a declining revenue environment and to address the rising cost of oil. The industry has used hedges; pared domestic capacity as a way to reduce exposure to an unhealthy domestic market; increased international capacity as a way to increase revenue; cut back on amenities; cut distribution costs to a minimal level; reduced ownership costs; cut employee wages; improved employee productivity; improved asset utilization; terminated pensions; outsourced flying; outsourced maintenance; outsourced administrative activities; and experimented with hub structures to name a few of the hundred of cost cutting activities that have been employed.

Most, if not all, reasonable steps have been taken to prevent or limit the continued losses for the US industry – except for that outside interference called oil.

Included in the definition: A force majeure may also be the overpowering force itself, which prevents the fulfillment of a contract. In that instance, it is actually the Impossibility defense. As for the externality, the industry has nothing to do with the event’s happening. As for unpredictability, this industry has done everything it can do to counteract its influences. As for irresistibility, the consequences of the oil price rise were not preventable.

Delta and Northwest

About one month ago, I remember Bob Fornaro, CEO of AirTran Airways, referring to proposals made to his pilots in an oil-denominated way. Like Fornaro, Messrs. Anderson and Steenland I only hope that you tell your pilots and all other employees that the terms of the agreement you made in order to have a single collective bargaining agreement in place are now off of the table. You made an agreement where some of your pilots would receive 30% pay increases at $85-90 oil, surely those agreements should not be made at $105 oil. Invoke force majeur.

$20 per barrel ago, you said that your networks would be largely kept intact. Now today you seem to be hinting that the size of your networks may need to be reconsidered. Let’s just face the fact that there are too many regional carriers and too many hubs and as a result too much money being spent on serving communities that cannot economically support the frequency of access to the air transportation system today. Cutbacks like those Doug Parker of US Airways suggested were probably unavoidable at some point and at $105 oil, well……invoke force majeur.

In each case, these suggested actions seem prudent and can easily be explained by an unpredictable externality whose consequences could not have been predicted by you. Invoke force majeur.

Consolidation is still right. But as everyone has said it has to be the right deal for all stakeholders and given the externalities facing the industry, much harder choices will now have to be made.

More to come.

Just Wondering, Or Am I Wandering?

A Few Issues in the Press

1. With the Euro reaching an all time high relative to the dollar yesterday, how will this impact international travel? Can the potential loss of US-origin customers that now deem an EU trip unaffordable because of the currency relationship be offset by EU-origin demand that will find the US cheap?

a. Headline in today’s Wall Street Journal: "Lufthansa Expects Growth in 2008". As the company’s net profit doubled in 2007 v. 2006, the company cites its broad business model that includes aviation services, catering, airports and other areas as a mitigation of downside macro risks. For the US, that might mean increasing the foreign ownership limits?

2. In late 2007, United warned of the potential to “put down” as much as 10 percent of its capacity if oil prices stayed above $100 per barrel. Well, yesterday oil actually traded over $110 per barrel. The $100 price point has become a level that most oil watchers expect to be sustained. My question for the politicians is: will there be more industry capacity removed as a result of oil prices or consolidation?

a. My suggestion to the "know all" politicians: Be very careful for what you say no to.

3. Yesterday, Jamie Baker of JP Morgan downgraded the US airline industry for all intents and purposes. Terry Maxon of the Dallas Morning News blogged on Baker’s research note that suggests a best case scenario, based on current oil prices and a minimal demand loss due to an economic slowdown, is for the US industry to lose $4 billion. The worse case scenario calls for an industry loss of $9 billion.

a. So much for the robust, and sustainable, industry turnaround we hear from labor leaders and others.

4. Speaking of labor, Baker makes a very powerful point, and one that I have used a number of times. He says that since 2002, the industry’s fuel cost will have increased in the neighborhood of $25 billion. This contrasts with his estimate of labor savings over the same period of $7 billion.

a. Will we ever hear the end of the refrain that the industry recovery has been built on the backs of labor? First, and again, what recovery? Then, and again, what is the industry’s ability to repay that $7 billion? This just underscores what will prove to be the most difficult labor negotiations cycle since deregulation.

5. As if the industry needs more weighty issues to test its resolve, the story at Southwest over maintenance practices is most troubling. I am in no way going to suggest anything regarding this situation until all of the facts are known. But, this story will not be going away for awhile.

a. If the economy can be expected to have a dampening effect on demand, will concerns over maintenance have a compounding effect?

b. Jim “Hell NO”berstar gets yet another bully pulpit issue.

6. On another labor issue. I find it interesting that, included in labor’s chants against consolidation of the industry it says it will be looking out for its members (OK, that is their job) and the traveling public?

a. I guess the threats from labor of a strike, or a slowdown, are beneficial to the consumer because the system can quickly reaccomodate demand and there will be minimal disruption to the affected consumer? NOT

7. Yesterday the Continental pilots rallied in Battery Park along with other ALPA carriers and independent unions to call for the repayment of the concessions that the Continental group calls a loan made to the company in 2005.

a. What loan? Did you negotiate terms like those negotiated when money is borrowed?

b. Isn’t it ironic that the labor groups chose Wall Street as the venue for their rally? There must have been a lot of sympathetic observers given that Wall Street employees largely rely on variable earnings to comprise their total compensation and not fixed rates of pay? Oh I digress.

8. The Allied Pilots Association have told us many times and through many different mediums that just a modest increase in passenger fares will pay for one of the most outrageous asks made by a union of a company in my career. NOT

a. In the face of current oil prices, at what point do “pass throughs” of increased fuel costs negatively impact demand? At what point do the US macro economic issues negatively impact demand as consumer disposable income is negatively impacted from a long list of possible reasons?

b. If demand begins to weaken, I do not think fare increases will be the tactic employed by the industry to address the issue.

b. Maybe the CR Smith Museum should be enlarged rather than being refurbished?

9. Politicians and labor should think real hard about the fallout that could stem from the current economic environment versus what the perceived fallout could be in a consolidation scenario.

More to come.

Converging Catalysts Making a Case for Consolidation?

Don’t look now…….

…..but there is something that feels different to me. In the vial, mix:

1. a lot of anxiety with commensurate posturing
2. non-traditional capital sources with skeptical labor
3. parochial tendencies against global economic forces
4. a weak dollar relative to foreign currencies
5. a weakening US economy and record high oil prices that appear to be the new standard

What do you get? Consolidation chatter that has the feel that it is real. Not talk; not speculation . . ..the real deal.

The US Home Market

The last meaningful airline consolidation period that involved multiple players began in the mid-1980s. Piedmont bought Empire; American bought AirCal; Northwest bought Republic; TWA bought Ozark; United bought Pan Am’s Pacific Division; Delta bought Western; USAir bought PSA; USAir and PSA bought Piedmont; United bought Pan Am’s London Heathrow authority; and American bought TWA’s London Heathrow authority. And that’s only the larger transactions of the period.

It is these transactions that formed the commercial backbone of the industry today. Nearly 20 years have passed since the industry recognized that economies of scope, scale and density would prove important to survival in a deregulated network industry. And it brought a significant regional concentration of services. Two Minneapolis hub carriers merged; two St. Louis hub carriers merged; and two predominantly East Coast carriers merged. Arguably, only Delta and Western represented an “end to end” merger of carriers.

In the years since, there have been periods of mainline capacity cuts, mainline capacity growth and regional carrier growth – explosive at times and largely facilitated by technological change and a disparity in labor rates. And by the late 1990s, we also had the explosion in new capacity by low-cost carriers, and not just Southwest. The growth by the LCC sector was largely driven by the gap in the cost structures between the upstarts and the legacy carriers.

That Was Then, This Is Now

We have talked on Swelblog.com about how the barriers to exit are greater for this industry than are the barriers to entry. We learned the latest lesson on this topic during the bankruptcy era when more-than-sufficient capital was available to fund each of the respective plans of reorganization.

I would be surprised if one serious analyst did not question the virtues of the reorganization plans. Costs were cut and network changes were made, to be sure. But now, compounding the price of fuel is a weakening economy. Airline share prices plummeted throughout the month of December. Thus far in 2008, virtually every market is off to one of the worst starts of any year on record. The markets know something. The only time I want to see the highs getting lower, and the lows getting lower, is in my golf score.

At some point, the current credit crisis, increasing food prices and the impact of rising fuel on the consumer pocketbook will begin to put real pressure on consumer disposable income. And this will impact airline travel. Consumers will simply be less inclined to travel, even if the ticket price is right. From everything I read, it is clear that planned capacity for 2008 has not factored in any meaningful loss of consumer disposable income, nor should it as the macro economic indicators continue to provide us with mixed signals at every turn.

The Catalysts for Consolidation

1. The price of fuel: Consolidate this time will mean consolidate, or risk getting smaller. Consolidate means eliminating any and all duplication of service and costs associated with providing that service. And no, it does not have to harm the consumer as I believe that the leadership of the US airline industry may actually be more concerned about further erosion of consumer confidence in the industry than the health of the economy and oil threats.

2. The US domestic economy: A weakening economy will only shine a harsher light on service to communities that can’t be operated at a profit. The US airline industry made a good bet on 50 seat capacity during the latter half of the 1990s. That bet helped the industry to remain connected during the dark days of 2001 – 2004. But if that capacity was not economic at $50 oil, then it certainly is not economic at $90 oil. I do not think the industry has any overt intentions to disenfranchise entire communities from access to the US air transportation system. Rather, the industry will rightly ask if the same revenue can be generated with six frequencies instead of nine or three frequencies instead of five.

3. Hyper domestic competition: If anyone on Capitol Hill ignores the simple fact that US airline industry growth has slowed at home because few profitable opportunities remain, then we will just keep having the circular conversation – mostly driven by parochial concerns – that rejects consolidation out of an irrational fear that it will limit competition.

4. Increased international competition: If not a catalyst today, incursions into our market from foreign carriers promise to become a pressure point in the near term. The immediate impact of the US-EU deal is not much more than a change of the three letter airport code from LGW to LHR. But LHR, like JFK, is important airline real estate. Given this fact, what will bmi do? It has significant slot holdings that are sure to be bid on by any number of carriers like BA, Virgin, Lufthansa (with rights to exercise), Singapore, Emirates or any one of the Indian carriers. Any one of these carriers can force a changed transAtlantic environment overnight if LHR slots land in their portfolio. And we will sit and watch just how BA will compete with its Open Skies subsidiary from non-LHR points on the continent. Game on.

5. Foreign Capital: Just as plenty of money was available from many sources to fund bankruptcy exits in the US, foreign capital will prove to be plentiful as the US considers merger partners and deal structures. I am not convinced that all alliance structures are set in concrete. This being said, the alliances are sure to be most interested parties in how the network structures might evolve. In fact, some of the competition among the alliances to secure their place at a preferred table may be the catalyst to satisfy the many currently unsatisfied shareholders in US airlines today.

6. Labor: In a recent post here (no, not the one where the Terrapins beat the Tar Heels), I wrote about the emerging leadership of Lee Moak, ALPA MEC Chairman at Delta. Since that posting, the leadership of the pilots at United and Northwest have also spoken. Why the rising volume in the union leadership ranks? Because I am increasingly convinced that the industry is moving beyond recognition that structural change is about to occur -- and with that recognition comes preparation. Unions representing pilots and the flight attendants signal that preparations are underway to address respective issues in any consolidation scenario. They are seeming to believe, as do I, that with a seat at the table comes opportunity.

7. Management: In their public statements, the leadership at each of the airlines is increasingly more resolute in their comments regarding consolidation. United’s Tilton and US Airways’ Parker have been joined in recent weeks by Delta’s Anderson and Northwest’s Steenland speaking out in support of consolidation. Keep watching – it appears that Continental’s Kellner and Southwest’s Kelly may not be far behind.

With jetBlue partnering with Lufthansa; Frontier under increasing competitive pressure in Denver; and AirTran certain to be challenged by a growing and more vibrant Delta footprint, this discussion is not confined to a single sector of the industry.

A Few Concluding Thoughts

There is just something different this time. If after taking billions of dollars of cost out of the industry’s operations, all we get is a two-year profit cycle, then there will have to be something different this time. Yes, we might get three years of profitability, but that’s not where the smart money is now. Already profit estimates for 2008 are being reduced by 40 percent versus what the industry earned in 2007.

The fact is, the industry already has used most of the rabbits in its hat. In 1985 the industry was in its infancy and the focus was on the domestic market as network size could not be built organically in the face of deregulated pricing. The same is true in 2008, but now we’re talking about network size in the global marketplace. Like in 1985, the networks that are necessary to survive cannot be built organically, not when airlines lack critical pricing power that stems from a fragmented and hypercompetitive home market.

Some very good things came out of that merger period in the 1980s. Some very good things will come out of this merger period as well. Yes, there will be dislocations and the loss of an icon or two. But we should embrace the change. It may be the last shot for many airlines. And it is a risk worth taking because the current model will only produce the same deaths by a thousand paper cuts.

01-02-08: Manufacturing Sector Disappoints + $100 Oil = Continued Airline Stock Carnage

Just thought I would memorialize a few facts from the first trading day of 2008. Crude oil trades at over $100 per barrel for the first time. [Crude oil actually traded at less than $11 per barrel in December of 1998.] Gold trades at a 27 year high. 1 Euro can buy 1 US Dollar and 47 cents. A report issued by the Institute of Supply Management suggested a contraction in the manufacturing sector which is an important barometer of US economic activity.

Airline stocks continued their downward drift in the face of more and more signs pointing to a weakening US economy. Most experts I heard interviewed today suggested that they see little in the way of oil price relief unless there is a significant global economic slowdown.

Now some stock facts on select US airlines…….

Of the 9 US publicly traded US stocks I consider significant, 8 set new 52-week lows: American, Continental, Delta, Northwest, US Airways, Southwest, jetBlue and AirTran.

United closed 37 cents above its 52-week low.

For these stocks setting new 52-week lows; American, Continental, Delta, Northwest, US Airways and Southwest all traded at least 3 times their average daily volume.

jetBlue’s market capitalization closed the day at less than $1 billion. The carrier’s stock still trades at 61 times its forward earnings suggesting there still may be more stock price damage ahead.

Of the 9 airline equities analyzed, the three largest in terms of market capitalization are: Southwest, $8.7 billion; United and Delta, $3.7 billion each.

Southwest trades at 20 times its forward earnings and United trades at 14.5 times. American, Continental and US Airways all trade at, or below, 7.5 times forward earnings.

The market capitalization of the 6 US network carriers combined ($17.3 billion) is the equivalent of 17.5 cents per dollar of revenue ($98.9 billion).

The LCC carriers: Southwest, jetBlue and AirTran would cost considerably more as their combined market capitalization ($10.3 billion) is the equivalent of 70.9 cents per dollar of revenue ($14.5 billion). Southwest comprises nearly 85 percent of the three carrier's market capitalization. Southwest’s market capitalization is the equivalent of 90 cents per dollar of its revenue.

Circular Logic: US Airways and the Economics of Entitlement

Since US Airways’ failure to convince the US Congress, employees and the Delta Unsecured Creditors Committee that their deal provided many stakeholders with a long-term blueprint for success, issues faced by the US Airways’ management team continue to get more and more parochial. The recent news announcing the continued downsizing of Pittsburgh has elicited responses from Congressmen that this writer finds baffling. And the move by unhappy former US Airways’ East pilots - caused by an arbitrator’s ruling regarding the seniority integration with the former America West pilots - to consider an alternative union to the Air Line Pilots Association is troubling.

The Pulldown of Pittsburgh – A Long History of Weak Hub Economics

To start, let me reiterate my views on the market: there are too many network legacy carriers; too many low cost carriers; too many regional carriers as a result of having too many network legacy carriers; and there are too many hubs which keep too many network legacy carriers and regional carriers operating.

Defining Entitlement Economics: all are conferred a lifelong right to employment and/or abundant service despite the fact that the economics of the US airline industry, particularly its domestic operations, have changed significantly since the early 1990’s.

Remember the early 1990’s: It was during this time that the industry emerged from a recession that was triggered by the Gulf War. American exited Nashville and Raleigh-Durham. Continental was emerging from Bankruptcy #? and exited Denver. Delta’s presence in the Western US, purchased from Western Airlines, was being pulled down. Other carrier’s were also reducing west coast capacity as the market was being impacted by the growth of Southwest and question marks about how successful United would be following its ESOP agreement reached in 1994. And I am confident that I have missed other significant events during this period. What I do sense, is that we are about to embark on a similar period.

The period also marked the beginning of the end for US Airways as accidents, increased competition and the hangover of management decisions to “give away the store” in collective bargaining agreements to all employees from each of the companies it acquired during the late 1980’s were being fully realized. It was at this time, that the management team was changed significantly to see just how many tricks could be pulled out of the hat of an airline with a bloated cost structure and a revenue base under attack from all directions.

Last week there were two articles that caught my eye. The first story, by Dan Fitzpatrick of the Pittsburgh Post-Gazette click here defines the unfortunate position Doug Parker, US Airways’ CEO, finds himself in as his management decisions are being challenged by an uninformed Senator Arlen Specter. An enlightened David Grossman of the USA Today click here does a wonderful job of describing the declining economics of the Pittsburgh hub while at the same time capturing the consumer friendliness of the facility. The facts outlined by Mr. Grossman were intact before US Airways’ merger with America West and should have been a signal of things to come for each the employees, customers and city fathers in Pittsburgh along with the Pennsylvania congressional delegation.

So Senator Specter:

- When you say you might not help US Airways with political issues in Washington DC - that is truly unfortunate. I thought you represented all of Pennsylvania and not just Pittsburgh. I thought that the Senate was interested in the success of companies and industries, particularly those that are inextricably linked to the health of the US economy and assuring that US industry can be as competitive as it can be in the global economy.

- US Airways has reciprocated, and has shown the Pittsburgh area consideration in return for Congress’ support in building a new airport. Quite honestly, the reciprocation has come in spades as Pittsburgh has been among the most overserved cities in the US when considering the fact that only 20% of the airport’s traffic was local Pittsburgh traffic (pointed out in Mr. Grossman’s article). Simply stated, this is just bad economics for an airline hub and all Mr. Parker is doing is making a prudent management decision that should contribute to his company’s financial health.

- Finally, your decision to fly Southwest is certainly yours and I agree that they are a very good competitor in the markets they serve. Government policy in the US aviation market has led to significant market fragmentation and as a result the consumer has benefited from lower ticket prices. But I urge you to look in the mirror and ask yourself who is serving Allentown, Harrisburg, Wilkes Barre-Scranton and Erie. It sure is not the low cost carriers that have been the darlings of Capitol Hill. It is the network legacy carriers that invest in the right sized airplanes to serve those markets when the low cost sector tries to lure those travelers to the big markets they only serve.

So US Airways East Pilots:

- When you say you are unhappy with the Air Line Pilots Association over an arbitrator’s decision and you want to leave ALPA - for the historical success of non-national unions? - be careful for what you ask for. How do you really think things will be better for you and your followers under a new union with little clout?

- It is time to simply recognize that the merger deal with America West was the most important component of the Plan of Reorganization that permitted you and the remaining work force to emerge from bankruptcy #2. Your problems began a long time ago and are not the result of this agreement. Without it, my guess is the US Airways logo (whichever one it is) rests somewhere with Pan Am, Eastern, and TWA.

So Senator Specter, you are not entitled to service in this economic environment just because you have had it in the past; and US Airways’ employees are not entitled to employment. What is troubling to this writer is to have Senators not looking around their own state and recognizing that it is the network legacy carriers that are serving “your” cities of all sizes – not just the largest markets despite the difficult economics facing the industry. If you think that the low cost carriers are the answer to your service dilemmas, then keep making statements about not wanting to help a carrier that has invested, and generated, billions in “your” economy when they visit your office in Washington DC. If you think about it carefully, your logic is circular.

To the US Airways’ pilots, your circular logic is more like the virtuous circle of failure that began long ago. You finally have a CEO that is committed to the operation, committed to finding success comprised of a network with limited short term upside and committed to avoiding a walk down the plank that promises no return. But if the world begins to change along the lines suggested by the last two posts in this blog, then it will be nothing different than the parochial interests that stood in the way of commercial opportunities at the “Old US Airways”.

All Eyes on Texas

As the airline industry turns away from the round of labor restructuring that began in 2002, it is now at a crossroads. Pilot negotiations now underway, or about to begin, at each of the Texas carriers underscore how difficult this next round will be. And depending on which side of the table you sit, these negotiations are blessed and cursed in many ways.

In each case, fragility rules the day, whether by the condition of airline balance sheets, relationships, expectations, competition, over promising, under delivering. What is clear at the outset is that U.S. airlines need to seriously reexamine their communications to employees and shareholders if they are going to successfully negotiate this treacherous path.

I rank upcoming negotiations at the Texas-based airlines from easiest (nothing will be easy) to most difficult (requiring a new prescription in the rose colored glasses) in this order:

1) Continental, in that the company and its pilots negotiated a protocol agreement that will help preserve effective communications and a productive process.

2) American, in that, by virtually any metric, its pilots are already at the top of industry in terms of total compensation but have the ability to create currency through improved productivity that might be used to subsidize other parts of a new agreement; and

3) Southwest, in that the company and its pilots already lead the industry in productivity click here and as a result do not have much “give” on that front;; have the highest average wages click here; and face slower growth. Man, I would not want to be in Gary Kelly’s shoes on this one.

A case can be made that this upcoming round of negotiations with airline unions may be the watershed event since deregulation. It could go far in determining tomorrow’s airline winners, losers – and mere survivors. Remember Eastern and Pan Am. Every 15 years or so something happens that changes the game.

So why are all eyes on Texas?

Continental and the Air Line Pilots Association’s negotiating protocol paves the way for them to begin bargaining early in an attempt to complete negotiations by the scheduled amendable date of December 31, 2008. American’s contract with the Allied Pilots Association is amendable in April of 2008. And Southwest and its pilots are currently working under an extended agreement that is currently amendable

In my view, Continental has one of the best – if not the best -- management teams of all the network legacy carriers. They were first in signaling the end of the small regional jet euphoria – or, as the former Chairman of the Federal Reserve Bank, would call it “exuberance.” Continental has leveraged its Newark hub to grow transatlantic flying (a model others are trying to emulate but with population bases one-sixth the size of the New York CMSA – but I digress); and they have continued an open communication with all of their employee groups that evolved after the airline emerged from bankruptcy hell in the mid 90s and has clearly led to a good internal operating environment.

In Continental’s case, neither the management side nor the labor side negotiate agreements that prohibit the goose from laying “golden” eggs for all stakeholders. They, too, negotiated concessionary agreements outside of filing for court assistance but they did not have to go near as deep given the competitive pay rates and productive work rules in the collective bargaining agreement.

Between the two Texas network legacy carriers (NLCs as we refer to them at MIT), American faces the toughest negotiations. Its cockpit crew members currently have the highest total compensation per pilot in the sector. More importantly, when total compensation is calculated (wages, pension and benefits and personnel expenses as dictated in the contract) AA has the highest pilot cost per block hour of any carrier in the industry click here.

Given this unenviable cost disadvantage, is it any wonder why American did not immediately agree to the whopping 30.5% pay increase and other sundry contract enhancements demanded by the APA’s prior administration – and now we wait on a new proposal that is speculated to be even more? In fact, that number is uncomfortably close to the number sought by then-Chairman of the United Pilot MEC, Rick Dubinsky during the dreaded summer of 2000, which all but killed the UAL “golden goose” and forced the carrier into bankruptcy. It was said to me at the time that the tentative agreement made nearly two-thirds of United's international flying unprofitable. Now, as a result of the extended trip through bankruptcy, UAL's pilots are among the lowest paid versus the highest paid in the industry.

American’s pilots today enjoy a cost per block hour advantage against no major competitor in the industry click here whereas Continental enjoys a cost per block hour advantage against four of its six NLC competitors.

But it is American’s cross-town competitor, that faces the toughest labor situation of all, at least to this observer. Yes, I mean Southwest -- the envy of the industry in terms of pilot/employee productivity. And therein lies the rub. The magic in collective bargaining – and historically for Southwest - is to find a way to trade productivity for higher wages. When you have a pilot group that flies an average of 65 hard hours per month against a mandated industry maximum of 1000 hours per year, there is not much room to move. This, on top of the fact that Southwest pilots are already the highest compensated in terms of average salary per pilot along with an arguably rich benefit package – begs the question: where do they go from here? As growth slows, it will be increasingly difficult to move the “productivity needle” through operational changes click here. And don’t look now, but Southwest pilots fly the least number of available seat miles per dollar of total compensation than even the network legacy carriers – output per labor dollar has declined more than 25% since 1995 click here.

So as we watch the airline labor negotiating world begin the contract kabuki dance, all eyes should be on Texas. Like it or not, the concept of pattern bargaining still is alive and well in the industry and it is just as much of who’s on first (industry leading) as it is who is going to go first – and set the pattern?

Swelblog.com Taxiing Into Position

Welcome to Swelblog.com . For some of you, the name Swelbar is recognized. For others it will be new. Following nearly 30 years of airline industry experience, mostly in the consulting world, I hope to use this space to focus on the most talked-about issues in the airline business: the people running the airlines, the labor unions, customer service, competition and finances in one of the most interesting industries in the world.

Of course we may deviate some to talk about golf, college basketball or wine and other vitally important things, assuming there are any.

I did not start this blog to win friends or influence anyone. I’m a data guy, and I’ve been studying the industry long enough to come up with some strong opinions . . . many of which aren’t popular in either boardrooms or union halls. My approach is analytical because, in my view, the numbers don’t lie.

I want to start with scope, which has powerful implications for airline fleet use, labor and the bottom line. I spent a lot of time studying labor contract “scope clauses” in a prior incarnation, looking specifically at the issue of scope clause constraints on market development in 1999. Some agreed with the analysis, others did not. Some were dignified in their responses to the analysis, others were not. I expect much of the same here and it is my hope that the site can in time lead to a cogent, coherent and congenial discussion on the many issues and opinions that are sure to rear their head.

I rejoined the scope debate in a recent issue of Aviation Daily. In August, a well known and respected regional airline industry analyst raised issues with pilot scope clauses as an impediment still plaguing certain carriers. That piece was followed by a response from a current leader of a pilot labor organization and then followed by a response from the current President of the Regional Airline Association. After reading it all, I could not quiet my fingers.

In my posting you will find many issues that I have addressed publicly over the years, not only scope, but also the regional-mainline carrier relationship in general. I have taken the liberty below of sharing the opening and closing paragraphs of each submissions that lead to my response which I have published in full. Much more to come……..

Swelbar

Scope Disparities Growing on 8/2/07

By Doug Abbey, Partner in Washington-based aviation market research and consulting firm The Velocity Group

First Paragraph:

As Continental commences formal negotiations with its pilots on a new multi-year contract, it is ironic to note that the carrier now has the most restrictive scope clause language in the industry. By having successfully avoided bankruptcy, Continental (along with American) has been rewarded commensurately; both carriers now find themselves widely out of competitive touch with their post-reorganization peers.

Closing Paragraph:

We therefore encourage Continental and American to consider a new direction not encumbered by old ways of thinking or doing business. Scope is an anachronism — both in and out of bankruptcy — that does far more harm than good.

Opinions expressed are not those of Aviation Daily or McGraw-Hill. Bylined submissions should be sent via e-mail to aw_departures@aviationnow.com.

Scope: Beneficial To Pilots And Airline Managers on 8/17/07

First Paragraph:

In the “Departures” section of the Aug. 2 edition of The DAILY, airline industry consultant Doug Abbey expresses the view that the scope clauses contained in some pilot contracts do more harm than good for major carriers’ key constituencies. A brief examination of the facts illustrates that he could not be more mistaken.

Closing Paragraph:

It’s a tired refrain for consultants like Mr. Abbey to blame labor contracts for corporate shortcomings. I submit that it’s management’s responsibility — the executives who lavish themselves with hundreds of millions in bonuses — to fix the factory through vision and leadership.

Capt. Lloyd Hill is president of the Allied Pilots Association, collective bargaining agent for the 12,000 pilots of American Airlines.

Stop The RJ-Bashing on 8/23/07

First Paragraph:

Blaming this summer’s air traffic hassles on regional jets brings to mind Yogi Berra’s reason why he didn’t want to eat at a popular restaurant: “No one goes there anymore — it’s too crowded.”

Closing Paragraphs:

But don’t blame RJs. Or the airlines — which lose big with flight delays. Or the FAA’s controllers, since not even Tiger Woods could hit 350-yard drives playing with persimmon head clubs. Instead, can’t we just all get along, stop playing “blame ball” and work together to fix the system — even if it’s one delay at a time?

Then maybe we can make one of Yogi Berra’s lesser known quotes come true: “It’s not too far, it just seems like it is.”

Roger Cohen is president of the Regional Airline Association.

It’s More About Labor And Economics, And Less About Scope

I have one word for the discussion that began in Departures on Aug. 2 and continued throughout the month regarding the issue of scope clauses — hypocritical.

While scope clause limits in mainline pilot contracts were a significant issue in the late 1990s, they can hardly be considered a similar impediment at any carrier today. You can’t claim that scope defines work for mainline pilots any more than you can say that small narrowbody jets have a place only in the regional airline industry.

While I do not agree with Capt. Hill’s economic analysis of the use of 35- to 90-seat jets, I believe he has identified a key issue facing airline labor unions in the next round of negotiations. The arbitrage in labor rates between the mainline and regional sectors of the industry fueled the growth of the regional industry over the past 10 years. Now, as rates have converged across nearly all sectors of the industry, one can make the case that the economics of the relationships between mainline carriers and their regional affiliates may not be the best operating model for tomorrow.

Mr. Abbey cites American and Continental as the airlines with the most restrictive pilot scope clauses. In fact, each carrier has been judicious in its use of its regional fleets and has outperformed the industry during a tumultuous time. Continental made the first declaration that its 50-seat growth would come to an end sooner than expected, and American has been the most vocal of the mainline carriers about the need to keep constraints on domestic capacity.

There are many issues that should be of equal or greater importance to the regional industry than scope clauses — particularly building an airport and airway infrastructure that meets America’s 21st century needs, as suggested by Mr. Cohen. The debate surrounding the reauthorization bill seems to be lacking an important push from labor, as both mainline and regional pilots have a lot at stake in this debate. The current situation does not bode well for growth in either sector, and growth is a critical ingredient for stakeholder success.

We are at a crossroads as the next round of mainline pilot negotiations begins: 1) Will mainline pilots continue to relax their scope and watch as significantly more small narrowbody flying is done by another sector of the industry that could potentially rekindle the discussion of labor arbitrage? or 2) Will mainline pilots seriously reflect and understand that the facilitation of growth at the mainline is their best course of action in terms of job protection — and maybe even job creation?

One necessary outcome in this next round of negotiations is a recognition that structural impediments to success exist within each sector of the industry. Cost maintenance/reduction remains paramount in this less-than-robust revenue environment. We cannot forget that vigilant cost controls must remain the focus if we are ever to find an enduring operating model that creates capital for all stakeholders, rather than recycling capital among them.

Today, network legacy carriers operate nearly 700 fewer aircraft with fewer than 150 seats than in 2000. Just because Embraer- and Bombardier- manufactured equipment resides with the regional sector of the industry today does not mean that the sector is entitled to all aircraft made by these two companies.

So, in addition to getting on with the business of fixing the infrastructure, let’s get busy and negotiate an economic framework that can get the mainline sector of the industry growing again. Unless mainline pilots find a new way to think about domestic flying in this next round of negotiations, aircraft manufactured by Embraer and Bombardier will remain the entitlement of the regional carriers.

This topic, and the fact that it has again reared its head, serves only to remind us that the industry’s restructuring is far from complete.

William Swelbar is a Research Engineer at MIT’s InternationalCenter for Air Transportation.
Labels: Air Line Pilots Association, airline labor, Allied Pilots Association, American Airlines, Aviation Daily, Continental Airlines, pilot scope clauses, Regional Airline Association, William Swelbar draft by Swelbar 8:32:00 AM Delete

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