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.

The Era of Transition, and Hopefully Transformation, Is Top of Mind for British Airways as Well

Industry cycles often adopt a theme – and often too late. The late 1990’s through, at least, the first three quarters of 2000 was arguably a bubble period where revenue generation was too good to be true – even in hindsight. Yet the US industry added billions dollars of costs believing that the revenue trajectory was sustainable. For US carriers, the period from late 2001-2007 was a restructuring period. A period necessary to begin making wholesale changes based on the unrealistic cost structures that developed during the inflating of the bubble.

Now today, we find an industry that has indeed taken billions of dollars of cost out of any number of carrier’s respective operations. But it was clearly not enough to produce an industry structure that can profitably support all of the current players. All you have to do is read 2008’s best-selling daily horror novel named the Wall Street Journal to realize that we are on very shaky ground. And about the only thing we know for sure is that the revenue health of the US and global airline industries is inextricably tied to the health of the US and global macro economies.

Views from Willie Walsh

Back in October, I wrote the shortest swelblog.com post to date. And the themes from that post are the one’s I use most when speaking. In Transforming the Transatlantic Market Into a Transcon Market, I reference a Reuters article that interviewed British Airways’ Chairman Willie Walsh. In that post I characterize the story in the following sentences: “Clearly British Airways is (re)evaluating the best use of its capital as the current architecture of the transatlantic market is being (re)examined. This story comes on the heels of reports that BA is considering a major expansion of new services into the US market”.

In the Reuters article, Walsh uses the term transformational. Transforming the global airline industry is precisely what is being done in Singapore, Dubai, Abu Dhabi, Frankfurt, Paris, Amsterdam, Hong Kong and Sydney. It is precisely what Glenn Tilton of United, Doug Parker of US Airways, and now Richard Anderson of Delta and Doug Steenland of Northwest have been/are saying as well.

There are Many Parallels Between BA’s Views and US Industry Views…..

……and I will touch on a few.

Individual airline growth around the world is taking place in multiple ways. Among the elite Asian carriers, the robust growth is largely organic. The same is true in Latin America. Except for LAN who is expanding through both organic growth as well as providing a brand on which flags of countries with struggling airlines can rely on for access to the global air transportation system. In the Middle East region, it is all about organic growth. This region is blessed with geography, capital and a vision that I appreciate more today than I did just a month ago.

In Europe though, growth for the legacy carriers has largely come through acquisition strategies. Sure Ryanair and Easyjet are growing organically but they are not the answer to Europe’s global access anymore than Southwest, jetBlue and AirTran are in the United States. It is just naïve to believe that the low cost sector is that answer.

On March 7, 2008 the Financial Times wrote a very good story entitled: BA looks to play the consolidation game. It is from this story that I will attempt to draw out some of the many parallels that exist between BA and the thoughts on industry structure espoused by the leaders of the US legacy carriers.

For British Airways, global travel is everything. For the US legacy carriers, global travel is quickly becoming everything as the US domestic market’s fragmented structure promises little to nothing in terms of profitable new business. But when BA looks at the size its principal regional competition (Air France/KLM and Lufthansa/Swiss) has grown to through acquisition, it, like its US counterparts, need to be concerned. They are big in virtually any metric imaginable.

While much is being written about what the new open skies agreement means for the industry in 2008, arguably the most important event for BA begins in December of 2008 when Lufthansa has a call option to begin buying BMI British Midland. With BMI comes a large London Heathrow slot portfolio that is sure to bring lots of interest from carriers around the globe. As BA moves to the brand new T5, and with the move the ability to move many more passengers, the slot issue is not lost on Walsh.

Like the US carriers, BA has shown very little growth since 2001. It has been engaged in its very own restructuring process. BA generates strong cash flow like the US legacy carriers but also relatively low returns on capital which also resembles the US legacy carriers. The FT article states that BA is readying for a growth period that is likely to be some combination of organic and acquisition related. In a theme that is quite reminiscent of what US legacy CEOs have been saying, Walsh is quoted in the article as saying "Some of the shackles have been removed," he told investors and equity analysts on Thursday, "we have not quite fixed the core business, but we are well on the way".

Ah, that core business thing again. To invest? Or not to invest? - and let the enterprise attrit into oblivion. That IS the question.

The FT piece expands on BA’s interest in BMI and goes on to say that an interest remains in Iberia. But outside of these two carriers, there is little interest in anything else European. Walsh states, "We are mindful of the opportunities consolidation can offer," he said. And his gaze is not only fixed on Europe”.

But Before We Go There – Yet Another Parallel

In a paragraph which caused me to pause and read multiple times, Walsh commented on the acquisitions made by each Air France and Lufthansa: "we look with admiration" at how both deals had generated substantial revenue synergies, a possibility BA had largely discounted, as it concentrated much more on the potential for cutting costs”.

This sounds a lot like what Delta and Northwest have been discussing. Network and revenue synergies first. I, along with many observers, have also struggled with the strategy outlined in a number of press reports which suggest that Northwest and Delta will maintain their current network structures. But after a period of domestic cuts and a restructuring of networks with a sharp focus on an international strategy, we will just have to wait and see whether the same synergies can be realized here in the US as are being realized in Paris and Frankfurt.

On US Consolidation and Views on the Regulatory Landscape

The article and Mr. Walsh offer views on US consolidation that are also in concert with statements made by US legacy carrier CEOs. "US consolidation would be a good step forward," said Mr Walsh, "it would benefit the US and the global industries".

There has to be a strong US industry for there to be progress in the next stage of transatlantic liberalisation and a dismantling of US restrictions on the foreign ownership and control of US airlines.

BA had a "good relationship" with its US partner American Airlines, but the development of any deeper deal was "inhibited" by the two groups' lack of antitrust immunity from the US and European competition authorities.

"There is evidence that the regulatory landscape is changing," said Mr Walsh, but it was not yet clear that it had changed sufficiently to make a fresh application for a deal with American, he said. "We will continue to look and examine."

Bringing Back a Few of My Favorite Glenn Tilton Statements

For those of you that have read this blog since the beginning, you will have seen these quotes used before. For the purposes of this blog post, the parallels between a US airline CEO and Mr. Walsh are certainly evident.

Glenn Tilton, UAL’s Chairman and CEO said in a speech to the Nikkei Global Management Forum in Tokyo: “If there is one imperative for every business in the global economy today, it is simply this: evolve, adapt, reinvent . . . or risk irrelevance in the global marketplace”. He went on to say: “As everyone here today knows well: the reality of our world is that globalization is relentless. Think of any industry represented in this room; choose any business listed on the Tokyo Stock Exchange; and one can be sure: it looks nothing like it did ten years ago; and looks nothing like it will ten years from now”.

In his Tokyo speech, Tilton asks the following question: “As globalization gives rise to new economic powers within the developing world, the real question for all of us operating in mature economies today is this: will the legacy systems that contributed to the success in developed nations in the 20th Century be an asset or an impediment to growth in the 21st Century”?

He goes on: “The airline industry is a perfect platform from which to focus this discussion, because it is subject to virtually every imaginable challenge -- every human challenge, industrial challenge, financial, regulatory, and security challenge -- throughout the global economy. And then, of course, we also contend with the weather”.

So BA, like the US legacy carriers have evolved largely by being pushed by economic and competitive forces to engage in a necessary restructuring. The restructuring was necessary to adapt to both a changed and hypercompetitive domestic market and to better prepare for a world that has been largely liberalized. But, the reinvention of former legacy airlines into entities that can thrive in tomorrow’s economic world is not complete. And that is clear for each BA and United and Northwest and Delta and others to be sure.

More to come.

Yet Another Prism from Swelbar to Think About US Carrier Competitiveness in the Global Airline Industry

The one thing I have definitely discovered since introducing swelblog.com is that once you write, there is no where to run and hide. Following my November talk to an ACI-NA audience in Washington DC, I penned an article that appears in the March 2008 edition of Airline Business where I discuss the competitiveness of the US airline industry in the face of increasing global competition.

The many themes that run throughout piece have been discussed over the past five months here. So on a day where there are reports that the Delta – Northwest talks have been restarted, I continue to believe that a resolution can, and will, be found. Assuming that is true, then it will be off to Washington to discuss, and defend, the combined carrier. This article was written with the mind that the regulators must also consider any consolidation attempts in the context of US carrier competitiveness in the global airline industry.

Anything short of this consideration ignores the economic realities of globalization and the direction this industry is taking. And I sure hope that we do not spend inordinate amounts of time discussing how air service in the middle part of the US is made less competitive. Rather, I hope it is recognized that the regulators need to focus commensurate time considering how the middle part of the country will benefit from increased access to markets around the globe. Just as deregulation of the US domestic market has taught us, more than sufficient competition will remain.

One can hope.

Leaping Into Madness

Only every four years, do we get to write on February 29. But every year the month of March is Madness. One might argue that the month of February 2008 has been maddening as we await some kind of news – and a simple yes or no would work – coming from Delta and Northwest.

So I think it is only fitting that we get the following press release from NYU Stern Professor Robert Lamb and his take on the Delta – Northwest combination on the extra day in February. He suggests that the combination looks great on a map, but is doomed to fail. His reasoning is based on his book, co-authored with Thomas Grubb, Capitalize on Merger Chaos: Six Ways to Profit from Your Competitors' Consolidation on Your Own. While I agree it is a strategy that can be employed by players in a consolidating industry, I thought it might be just "mad fun" to consider the 7 points he makes pertaining to the Northwest – Delta combination:

1. Focusing inward on integration of Delta & Northwest will negatively affect their profit,

Precisely why this deal has not moved forward is because a decision has been made to avoid this very issue. Delta and Northwest can only work through the issues with the pilots because they are both represented by ALPA. Therefore, details can be negotiated as the collective bargaining agent is known. Moreover, by dealing with pilot issues upfront, limitations on how aircraft can be deployed will be settled and the important work of network configuration can begin.

While there will be representation issues to work through with the many non-pilot work groups, the direction of that work will also be decided by the employees. And that is whether there will be a collective bargaining agent or not. But non-pilot employees do not control the essential elements that impact how a network can be reworked.

2. The skills of employees from each company are not necessarily transferable,

The class and craft system of employees in the airline industry can be applied across the many companies that comprise the airline industry. The airline industry is made up of a lot of smart people. After some differences training, I feel confident that all employees performing a function at Northwest can perform the same function at Delta. So, I do not think this issue does much to stand in the way of a successful merger.

3. The lack of a strategically powerful merger plan will lead to chaos and uncertainty, and both companies’ most valuable resources—their best people—will probably flee,

Let’s think about this for a minute. We have a $20 billion deal sitting on ice while we await word as to whether a consensual integration of seniority can be accomplished between the two pilot groups. In an industry where seniority rules how employees work, there is a very long history of why employees do not leave one company for another in this industry.

4. The size of these two airlines combined creates the largest US airline, which poses a threat, according to studies indicating that larger companies are historically the least successful in mergers,

And today, the two largest airlines in the world are arguably among the most successful. And they are the byproduct of merger activity: Air France and KLM; and Lufthansa and Swiss. The economies of scope and scale are important in a network industry. And to continue the debate about size of an airline in the context of a US only industry ignores the economic forces of globalization. What was most refreshing for me on my trip to Dubai was to have multiple discussions where perspective was only considered in the global context and not on a regional scale. And the US is merely a region that is part of the global economy.

5. Most companies don’t know the statistics on merger failure and let egos alter their judgment when determining how much the enterprise can afford to pay and how much they will recoup,

Northwest and Delta are working hard to address the known issues that have stood in the way of successful attempts in the past. I think each company involved along with knowledgeable industry watchers is well aware of the statistics on merger failure in the airline industry. I guess the fact that the senior management team has already been decided does not suggest that egos have been put down in order to forge a combination that each company believes is in the best long term interest of their respective companies. And finally in a stock swap deal and given the certainty over oil prices and economic conditions, how much can be recouped is a fairly straight forward exercise.

6. Union issues may delay the merger, causing airline executives to focus too much on internal operations, and not enough on competitors,

I believe that this was answered in #1 above. Further without an agreement from the one similar, and known, union on the property, there is no deal based on what we know today.

7. A significantly more profitable merger would result from a joint venture between either Delta or Northwest and a strong foreign airline.

Now finally a point I can begin to embrace somewhat. But in some ways doesn’t Northwest already have a joint venture with KLM and Delta a joint venture with Air France and Northwest/Delta with Air France/KLM? This loose joint venture will be cemented by the equity investment the non-US group plans to make in the Northwest-Delta combination. I hope the combination results in a more profitable entity as today’s profit levels are not sufficient to enable the reinvestment in the business that is necessary.

Concluding Question

Is this delay in time good for the deal, bad for the deal or indifferent to the deal?

Concluding Thought

If nothing else, the delay brings with it many interesting nuance and analysis that is just simply not applicable. I do expect more from a prestigious academic institution than to think about mergers in a parochial US-centric way. Ignoring the forces of globalization is well…….

Time Well Spent; Unchanged Catalysts to Consolidation; and Concerns Surrounding the Delta – Northwest Deal

Time Well Spent

A significant amount of my career has been spent participating in labor negotiations surrounding a distressed situation. There are two principles I always adhered to when advising clients: 1) you can always make a bad deal; and 2) strive to make a deal where either both sides are happy or both sides are unhappy because in both scenarios that probably means you have negotiated the best deal possible. Trying to avoid a scenario where one side is happy and the other side unhappy means you have negotiated a bad deal – and that is precisely what Northwest and Delta are trying to avoid.

Justin Baer of the Financial Times writes an excellent piece describing why seniority is critical for pilots. So it is important to understand just why these discussions are taking so long. Given that we are more than 20 years from the US industry’s last round of consolidation involving multiple carriers, pilots recognize that decisions made today will more than likely impact the majority of their remaining careers. But the always thoughtful and insightful Liz Fedor of the Minneapolis Star Tribune raises the specter of a negotiating clock. Another important negotiating rule is that it is hard to negotiate without a deadline.

Whereas many journalists and pundits are suggesting that the end is near in these negotiations, and as a result the much discussed deal will die, I am not one of them. Ms. Fedor in her opening paragraph writes: “A veil of silence has encircled the pilot leaders at Delta Air Lines and Northwest Airlines who are struggling to integrate their seniority lists -- the lone impediment to a merger announcement”. So why is this important? I typically read no talking as a positive sign. And the only people I have heard say Hell No to this deal before seeing the details is Congressman Jim “Hell NO”berstar and members of his staff.

I am an open proponent of change. I am an opponent of closed mindedness. One of the big points that I think is being missed: if there is concern over a political clock running out to get regulatory approval, then weeks spent today could possibly save months gaining regulatory approval for the deal tomorrow. In concluding her piece, Ms. Fedor raises this very important point that I have not seen written elsewhere as well: “If an agreement is negotiated in advance of a merger announcement, the two pilot groups also would be expected to be political allies for a merger during a regulatory review in Washington”.

The Catalysts to Consolidation Remain Unchanged

This morning, William Greene, analyst at Morgan Stanley writes a research note referencing the widely covered internal Delta memo to employees yesterday. The text of Mr. Greene’s note follows:

Delta Air Lines, Inc.
Quick Comment: CEO Memo Does Not Change Our Views

Impact on our views: The Delta CEO memo made public on Tuesday highlights the difficulties involved in completing airline mergers. That said, we still believe a deal is possible near-term for 2 reasons: (1) Oil prices at $100/bbl and a slowing US economy will keep the pressure on major airlines “to do a deal” and (2) the very substantial pay increases and equity ownership that labor stands to receive should a deal happen will increasingly put pressure on labor leaders to find common ground on seniority issues. Moreover, the economic arguments supporting consolidation are as compelling today (if not more so given the macro backdrop) as they were 6-12 months ago.

What's new: On Tuesday, Delta released a memo from CEO Richard Anderson to employees that outlined guiding principles for Delta in the event of a merger. The memo is intended to allay concerns that Delta employees have regarding a merger. Key concerns for employees include: seniority, job security, career growth and maintaining pensions. The memo indicates that any deal must satisfy these key concerns and a deal that does has not yet been attained (see memo on next page for more details).

Investment thesis: We maintain an Overweight-V rating on DAL primarily due to the company’s positive stance toward consolidation and good position vis-à-vis our key themes (market exposure, strategic actions, and labor risk). We also see relative value in DAL, although we note that we see the group as a whole as overvalued on an absolute basis at current oil prices. This is one reason we continue to recommend that investors sell into strength on news of consolidation. Should the stock run sharply higher from current levels or if the outlook for consolidation changes dramatically, we may need to revisit our rating.

Concerns – And Yes I Have Some

In a post earlier this month, I asked the following question regarding a labor leader’s decision making whether to support a deal or not: is the implementation risk of a merger deal (seniority integration, single collective bargaining agreement etc.) any greater than a leader having to manage the expectations of any employee group that actually believes they can make themselves whole in the next round of Section 6 negotiations?

While I understand the Northwest pilots are not prepared to sign on just because they would work under Delta rates of pay on the day following consummation of a deal. But doesn’t the question beg, as far as career earnings are concerned, just how much would pilots earn at Northwest if the company were to remain a stand alone entity? What are Northwest’s 20 year growth prospects? Will Northwest be able to duplicate organically what it would get fairly quickly in a deal with Delta? Will labor have any better opportunity over the next 5 years to do any better by their members?

Only the Northwest MEC can answer these questions. Where I am concerned is that the Northwest MEC is being advised by counsel in the Northwest – Republic seniority integration and in the most recent US Airways – America West pilot seniority integration (also reported by Ms. Fedor). By now everyone is aware that there are few, if any, success stories in either of these two cases. I just hope that decision making is not being clouded by the prospect that somehow past wrongs can be righted through this deal. But only those that know, know.

So hopefully either all will be happy or all will be unhappy. Otherwise just go ahead and say "Hell No". At least someone will be happy.

Where is Swelbar? Thinking About US Airline Industry Structure in Zurich

Well Swelbar is sitting in a lounge in Zurich on his way to Dubai. But the day is no different than any other day. I wake up from my sleep, only this time I awakened in the comfort of United’s new business class interior. The new first and business class interior is a significant improvement over the previous offering and a product worth trying. (Now remember I remain a United shareholder). But, lie flat in business class is a nice seat and of course the video and audio entertainment is much improved as well if you are into that stuff.

But I am not a guy that plans to write much on aircraft interiors. I am a guy interested in the competitiveness of US carriers in the global marketplace. Whereas it has been said that the new interiors being installed by United and American may be an iteration old when compared to the interiors of the major global players, it is a start.

Theories Behind Consolidation

While I do not have much time to write this morning, Barney Gimbel of Fortune Magazine writes an interesting take on the Delta – Northwest deal. As I have written about this expected deal, the devil is in the details, but…… The stories to date suggest that labor stands to make gains in the neighborhood of 30%, at least in the case of the pilots. Further the stories suggest that very little flying will be cut, hubs will be maintained and in fact new service may be offered. No, that does not sound like consolidation or what I call phase 2 of the industry’s restructuring started in 2002.

But if ensuring that one group of employees does not have rates of pay less than another group of employees, those rates need to be adjusted to address the known internal strife that will be generated if not addressed up front. Moreover, strife that will stand in the way of achieving synergies in the many areas of the operation that are certain to be addressed.

If part of the increase includes future pay raises granted under a single collective bargaining agreement, then the question becomes over what term? Is commensurate productivity to be gained in return for those wage increases? And what period of time does a new collective bargaining agreement cover? These are important issues and questions to ask – and the devil will be in the details.

My take on the facts gathered from known good sources of reported information is that Delta will first try to maximize revenue from a "network rework" then turn to difficult cost cutting issues as they evaluate the top line performance of the "reworked network". The US Airways – America West merger did produce revenue synergies as the networks were combined. Pittsburgh has in effect been closed. But few, if any, meaningful other cost synergies have been realized. And this is partly the result of the labor divisions that stand in the way of full operational integration.

Mr. Gimbel raises a point that I have been raising on this blog since the beginning – and that is about finding a sound and sustainable industry structure. Yes the industry is made up of individual carrier and other disparate interests, but the key to a better tomorrow has to be in addressing the known fragmentation of the home market. And that involves tough and painful decisions otherwise we do just continue down the path of attrition that will be disproportionately painful for many.

It is widely assumed that when a Delta – Northwest deal is announced, others will follow. If United is involved, we know there is a management team that will pursue both a revenue maximizing and cost- minimizing approach and this may change the thinking of all carriers considering combinations.

Banking on revenue alone is a dangerous approach given that we still do not know the real underlying condition of the US economy or what effects the condition of the US economy will ultimately have on the global economy. Combined networks will result in the ability to sell city pairs tomorrow that one cannot sell today. But the health of city pairs are still impacted by the underlying economic forces.

So let’s wait on the details. Let’s acknowledge that there are many ways to address less than adequate financial performance. I do not believe that consolidation is a panacea by any means, but what I do know is that today’s industry construct does not work.

The debate on approach can only begin in earnest once we know how all of the "new" pieces will fit together. Mr. Gimbel raises good points. But, even he is early in the game to declare that it just does not work. It took a long time to create these structural inefficiencies and they cannot be erased with one deal. It will take more than one and a piece here, and a piece there. Otherwise we just perpetuate the status quo.

More to come.

Pondering a Delta – Northwest Merger Yet Again: Irony and Sad Irony

Review of the Catalysts

On February 18, 2008, Justin Baer of the Financial Times wrote a very good – must read - story outlining the catalysts underlying the US industry’s current move to consolidate. More importantly he provided the historical context as to why then was not right for Delta and why now is right. In the face of $100 oil, Mr. Baer reminds us that the industry is still susceptible to economic cycles. As the US economy struggles we now hear stories of its effect – potential effect - on the European economy.

I raise the issue of non-US economic activity because the current consolidation environment is every bit about the ability to address the fragmentation of the US domestic market as it is to position US airlines carrying the US flag around the world to be strong global players again. Economies of scope, scale and density are certainly important in the domestic market but will prove essential in the global market as competition from known competition increases.

But more importantly, it is the competition from the unknown competitors that requires the US industry to address its weaknesses today or face a continued loss of global market presence tomorrow. In the article he writes of the various stakeholders – labor, Oberstar, low cost carriers – and their respective views on change.

Irony #1

Yesterday, MSN's MoneyCentral ran a piece entitled: “$100 oil may just be the beginning”. Isn’t it ironic as we await word from the pilots that the number 1 catalyst for the industry to seriously consider consolidation - oil prices - oil closes above $100 per barrel for the first time? Remember when United and others suggested that oil at this level, and if sustained, would cause each carrier to evaluate the possibility of reducing capacity?

Consolidation more than likely results in a better outcome for communities of all sizes than does an oil environment that renders some markets not economic to serve. In no consolidation scenario being discussed are there markets that would be disenfranchised from the air transportation system. This is because network efficiencies can be found to maximize revenue – or to minimize the loss of continuing to serve marginal markets. Fewer frequencies is a much better outcome than outright exit from currently serving a market.

So rather than fear the loss of service due to consolidation, the alternative of losing service due to changed economic condition – whether oil or economy-driven - is every bit as great, if not greater. Something to consider for the naysayers.

Irony #2

Liz Fedor of the Minneapolis Star-Tribune writes about the issues facing the pilots of each Northwest and Delta on the difficulties of negotiating the workings of a merged seniority list. I am one who believes that time spent negotiating these details today will result in significant time saved tomorrow in getting the deal approved when the transaction in its entirety is scrutinized by the regulators, Congress and the various publics that will opine.

Irony #2a – Sad Irony

Whereas yesterday many stories ran regarding the status of the pilot negotiations at Northwest and Delta, the National Mediation Board approved the application of the US Airline Pilots Association (USAPA) to conduct an election for representation of the former US Airways and America West pilots. Why is this ironical and sad to boot? Because this is precisely what the management and labor at each Northwest and Delta are trying to avoid.

Merger synergies typically need to be captured early in the deal. US Airways realized immediate revenue line benefits of combining their two networks. But until these labor issues are concluded, synergies on the cost side are muted, if not mitigated. So the nation’s smallest network carrier just keeps getting smaller and the upside for its pilots will keep getting less and less. I agree with Captain Prater that this decision is emotional and not rational and does nothing to move the ball forward for either the pilots or the combined companies.

The USAPA is making promises it cannot keep. And that is why it is well worth waiting for the two labor parties at Delta and Northwest to come together. The wait is worth it for all involved.

And besides, is the anticipation of a final deal really any different than any other negotiation that takes place routinely in this industry?

First Labor Hurdle Cleared in Delta – Northwest Deal?

The Devil Will Be In The Details

As Delta Air Line’s Board of Directors prepares to meet tomorrow in New York, Nathan Hurst of the Detroit News reports that the pilots of each Delta and Northwest have tentatively agreed to a framework of a deal. As in all things difficult, the devil is in the details. But the story suggests that an agreement on seniority integration has been reached subject to membership ratification.

There is no mention of a construct of a single collective bargaining agreement but the article does suggest that the pilots will receive an equity stake and a voting board seat in the combined entity. In the event the tentative agreement is not ratified by the membership, a binding arbitration mechanism has been put in place.

Susan Carey and Paulo Prada report in today's Wall Street Journal that a number of other “deal issues” still need to be finalized including the size of the Air France/KLM stake, compensation for non-pilot employees, a premium for Northwest shareholders among other items.

In the Journal story, Carey and Prada write “Some industry executives have worried privately how zero capacity reductions and higher labor rates would hurt the rest of the industry”? I am an analyst that wonders the very same thing but as mentioned above, the devil is in the details.

But it sure looks like tomorrow’s Board meeting is important and maybe we can start to look at the details instead of wondering what they might be. Or, maybe we will hear as soon as today or tomorrow according to the Atlanta Journal-Constitution.

Thinking about This Week’s Airline News: Industry Structure; Labor; and the Customer

Setting the Table

On October 8, 2007, I wrote the following in a post: “Some want to believe that the cost cutting is done. It is not. Some want to believe that it cannot get worse and it likely will . . . at least for some carriers. The low hanging fruit has been picked from the expense tree which only means that the hardest work is still ahead”.

“Over the next 2-3 years the winners of this war of attrition will begin to emerge. I am not alone in my belief that there are simply too many airlines– mainline and regional -- too many hubs and too many parochial interests among the stakeholders to make this market work for everyone”.

In a post on October 21, 2007, I wrote a piece where I was addressing employee and community entitlement to employment and air service. “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”. Nobody is entitled to a lifelong right of anything.

Yesterday, The Economist ran two separate articles that are a must read from my perspective. The first opinion piece entitled The Need to Shrink picks up on the very themes that have been written in this blog since its inception. The second, entitled Aviation A normal industry? cites the many catalysts for consolidation that we have discussed here as well.

But more importantly the article raises the specter that US aviation is anything but a normal industry due to the protectionist policies in place as well as the entitlement issues that the various industry stakeholders possess. The article also offers the global view that success for commercial aviation needs a healthy US market – a theme that this blogger believes firmly lies at the foundation of US carrier secondary status in the global marketplace today.

Labor and Expectations in Consolidation Scenarios

I am encouraged by the involvement of labor by each Delta and Northwest. There have been numerous news stories throughout the week on the subject. We should not be discouraged by the delay in announcing the deal as they engage labor in the discussion. A delay in the announcement measured in weeks could potentially take months off of the time it takes to get a deal approved.

What I am discouraged about is the sense by some that labor will be able to reclaim a significant level of concessions granted in return for agreeing to a deal. If we are looking for a merge lane back onto the virtuous cycle of value destruction that has plagued the industry since it was deregulated, let’s just stop the process and continue the war of attrition. If this is to be the transformational period that can hopefully address many of the remaining structural deficiencies that exist, this simply cannot happen.

As in any negotiations, there were more than likely some changes made to respective collective bargaining agreements that have not yielded the desired results for either management or labor. Those are the types of things that can be fixed.

Commercial transactions like these are not undertaken lightly. Consolidation for the sake of consolidation is not what this is about nor should be about. Rather, this is a careful examination of what continues to stand between the status quo and what is necessary to create sustainable, investable enterprises. Increasing costs for the sake of peace does not create a pathway to a sustainable and investable business.

All airline labor should explore other means of wealth creation rather than increases to base wages. It is called at-risk compensation. Sure your buy-in to any proposed deal is critically important. The industry just does not have the ability to pay today – not that it ever did.

But as The Economist article suggests: today’s managers are focused on the business of cost cutting that is necessary to adapt the business to the rough and tumble operating environment of today and prepare it for heightened competition tomorrow. Like it or not, these very same managers will make many tough decisions that their “nicer” predecessors did not address in the spirit of harmony. And in the end, those that acknowledge the need for change and that a continued restructuring and transformation is necessary will reap benefits that today’s structure simply cannot produce.

The Customer

In all of our talk here and elsewhere about the need for fundamental and transformational change, I am in hopes that the customer finds its way to the very top of the list. We spend lots of time discussing employees, communities, shareholders, Congress and industry vendors. Each of these stakeholder groups believe that they have some entitlement to reap from this industry.

Unlike in the bankruptcy process when the customer barely got mentioned as important to a plan of reorganization, the only stakeholder that is truly entitled to a better tomorrow is the customer. There are no other stakeholders without customers. The investment in the business needs to be in the customer and to demonstrate over time that airlines can regain their confidence. Continental, beginning in the mid 1990s, invested in gaining customer confidence in their product and it translated into higher revenue. It can be done.

Continuing to Ponder a Northwest – Delta Combination

Over the past weeks, I have written about what I see as catalysts behind the current consolidation talk/activity that is enveloping the industry. In addition to the catalysts I have talked, as have many others, that the two biggest hurdles to a deal are labor and the regulators. Further I have addressed an influential member of Congress that supported open skies and increased competition in the name of consumer benefits but fails to recognize that a healthy US industry lies at the core of delivering those very consumer benefits.

The Labor Hurdle

Unlike the naysayers who continually point to labor issues as likely to derail any potential deals, I actually see labor as a catalyst to the current activity. Why you may say? Because simply, any enlightened leader understands that the next round of Section 6 negotiations cannot, and will not, make their respective members whole following the restructuring round of negotiations.

The industry is no position to return to labor the $11 billion in concessions made over the period particularly when faced with a fuel headwind of $14 billion over the same period. What labor can do in a consolidation scenario is to position themselves in multiple ways to address their most pressing near term concerns while doing their best to ensure that their members will survive the ongoing Darwinian Struggle.

The three most significant issues facing labor in any consolidation scenario are: 1) determining labor representation; 2) seniority integration; and 3) negotiating a single collective bargaining agreement. I recently wrote a post on the first two items which discussed the nuances of potential Delta merger scenarios. The next day, Susan Carey and Paulo Prada of the Wall Street Journal filed a story in which they write “Executives at Delta Air Lines Inc. and Northwest Airlines Corp. are trying to build a common labor contract for the 11,000 pilots at both airlines before they complete a merger deal, according to people familiar with the matter”.

Further they write, “Delta and Northwest want to quickly achieve the synergies that would flow from a merger and avoid a messy, protracted labor wrangle that could arise if they wait to get pilots' agreements after a merger were announced or consummated.”

What is encouraging with all of this news is that the current industry is working hard to address many of the issues that the talking heads of the industry like to use to create doubt. If a single collective bargaining agreement construct is agreed to, Delta and Northwest have placed a high hurdle for any deals that might follow. I guess Delta and Northwest are redefining what conventional wisdom has come to accept as a labor hurdle.

The Regulatory Hurdle

If the current “odds on favorite” deal plays out, nearly 14 months to the day after Delta began its work to fend off a hostile bid from US Airways, Delta will be put in the position of defending why a consolidation scenario makes sense for the carrier, and the US industry, versus pulling out the guns to explain why a deal makes no sense. Ironic, yes. Surprising, no. Aside from Atlanta and a good market position in New York, the Delta network is anything but an envy of the industry. As for Northwest’s network with it hubs in Detroit and Minneapolis/St. Paul, the best description of their domestic network remains – it is cold, it is dark and it is ours. Just not high traffic volumes to Fargo and my Duluth home.

In the link to the powerpoint presentation entitled “Proposed US Airways/Delta Merger Would Be Highly Anticompetitive” above, it is easy to see how Delta played on the small community air service fear. It is also true that a combination with Northwest will result in a very different competition analysis given the more end-to-end attributes of the two networks. My guess is the combination will be looking for similar synergies that US Airways recognized -- read fixed cost savings while not undermining the pro forma revenue line of the merger scenario.

It is true that the Atlanta and Charlotte hubs have significant overlap. It is true that Salt Lake City overlaps with Phoenix and Las Vegas. It is true that Cincinnati overlapped with Pittsburgh (particularly before the downsizing). I am not going to acknowledge the suggested cited competitive overlap between New York JFK and Philadelphia as problematic.

There have been some reports suggesting minimal reductions can be expected at any of the hubs utilized by either Northwest or Delta. Look at page 6 of the powerpoint presentation. If Charlotte and Atlanta served 90 similar points, just imagine what percentage of cities served at tiny Memphis are served by Delta’s Atlanta megahub? The same statement would apply between Cincinnati and Northwest’s megahub at Detroit. And this is before we throw Midwest into the network mix.

Yes the restructuring that just recently concluded removed some of the redundancies between the Delta and Northwest networks. When US Airways made that hostile play for Delta, traditional anti-trust analysis would have shown this combination (DL/NW) to drive a higher concentration of market power than most other possible combinations. And a Continental – United combination would create a relatively low measure of market power across their respective networks.

But Is This What Is Really Important?

I am actually troubled by my own post. I have just spent 1000 words talking about what happens inside the 48 contiguous states and not what is transpiring around the globe. I am not talking about competition for China traffic between US carriers with authority today and what Korean Airlines carries over its global hub at Seoul. I am not talking about the global elite carriers that have prospered while our carriers have languished in a fragmented and hypercompetitive home market. I am not talking about the prospects of Singapore serving London Heathrow and New York with a far superior product.

No, I just did what many will try to do and limit the analysis to competition at home and not around the globe. And isn’t it the economic forces of globalization that are really at the heart of change? The naysayers will continue to fight those forces. In the end the forces always win. And in the end it really is about what structural changes need to be made to ensure that the US is in best position to regain a world leadership position. Let’s really think this through before dismissing it out of hand like Congressman Oberstar.

More to come.

F + E = LPP^DL: Fairness and Equity; Seniority Integration; Union Representation; and Lee Moak Again

In a Delta Air Lines Deal, Labor Protective Provisions Were Board Approved Before the Law Was Passed

Well, leave it to Susan Carey, along with Dennis K. Berman and Paulo Prada, of the Wall Street Journal to again write, and break the most recent period of silence surrounding a potential deal between Delta Air Lines and Northwest Airlines. In the same story, she reports that the preliminary talks that have taken place between United Airlines and Continental Airlines “have grown more serious”.

Whereas news on the deal side has been quiet, I have also noted the deafening silence from Lee Moak, the Chairman of the Delta chapter of the Air Line Pilots Association. My guess is Captain Moak is doing what all labor leaders should be doing and that is preparing for what is arguably going to be the most important period for organized labor since the passing of the Airline Deregulation Act.

A Recent Law Was Passed…..but the tenets had already been adopted by the Delta Board of Directors

SEC. 117. LABOR INTEGRATION. (a) LABOR INTEGRATION- With respect to any covered transaction involving two or more covered air carriers that results in the combination of crafts or classes that are subject to the Railway Labor Act (45 U.S.C. 151 et seq.), sections 3 and 13 of the labor protective provisions imposed by the Civil Aeronautics Board in the Allegheny-Mohawk merger (as published at 59 C.A.B. 45) shall apply to the integration of covered employees of the covered air carriers; except that--
(1) if the same collective bargaining agent represents the combining crafts or classes at each of the covered air carriers, that collective bargaining agent's internal policies regarding integration, if any, will not be affected by and will supersede the requirements of this section; and
(2) the requirements of any collective bargaining agreement that may be applicable to the terms of integration involving covered employees of a covered air carrier shall not be affected by the requirements of this section as to the employees covered by that agreement, so long as those provisions allow for the protections afforded by sections 3 and 13 of the Allegheny-Mohawk provisions.
(b) DEFINITIONS- In this section, the following definitions apply:
(1) AIR CARRIER- The term `air carrier' means an air carrier that holds a certificate issued under chapter 411 of title 49, United States Code.
(2) COVERED AIR CARRIER- The term `covered air carrier' means an air carrier that is involved in a covered transaction.
(3) COVERED EMPLOYEE- The term `covered employee' means an employee who--
(A) is not a temporary employee; and
(B) is a member of a craft or class that is subject to the Railway Labor Act (45 U.S.C. 151 et seq.).
(4) COVERED TRANSACTION- The term `covered transaction' means--
(A) a transaction for the combination of multiple air carriers into a single air carrier; and which
(B) involves the transfer of ownership or control of--
(i) 50 percent or more of the equity securities (as defined in section 101 of title 11, United States Code) of an air carrier; or
(ii) 50 percent or more (by value) of the assets of the air carrier.
(c) APPLICATION- This section shall not apply to any covered transaction involving a covered air carrier that took place before the date of enactment of this Act.
(d) EFFECTIVENESS OF PROVISION- This section shall become effective on the date of enactment of this Act and shall continue in effect in fiscal years after fiscal year 2008.

As we move forward there will be lots of stories about labor issues, air service to communities of all sizes, domestic issues, international issues, consumer issues and of course the horror stories of past deals gone bad to name a few. I sincerely believe that “smart labor” recognizes that the current speculation of possible combinations is not just talk but may be their best hope to position themselves for the future. Naïve thinking that Section 6 bargaining will return to its historical nature – well it is just naïve.

As we have written here many times and in many different ways, the current industry construct does not work for many, if any, major industry stakeholder(s). Any concept of change is difficult to accept on both the emotional and rational levels for sure. Short- term displacements and pain for some -- yes. Being forced to step back and accept that tomorrow will be significantly different -- absolutely.

But the burning question for me is: is the implementation risk of a merger deal (seniority integration, single collective bargaining agreement etc.) any greater than a leader having to manage the expectations of any employee group that actually believes they can make themselves whole in the next round of Section 6 negotiations? I do not think so with the industry facing an oil environment that was imagined by only a few, a weakening economy, increased global competition, general lack of an investment thesis, presence everywhere and pricing power no where -- no matter who you are.

My guess is Captain Moak has taken the basic tenets (fairness and equity) of the Allegheny-Mohawk merger protection provisions to heart and is studying the same merger scenarios that his management is. The primary difference in his due diligence is that he is focused on seniority lists and not EBITDAR. In his diligence process, I am sure he is figuring how to best analyze and “game out” the combination that treats each his own pilots as well as all pilots of a combined entity fairly and equitably. That is what leaders do and in this case it is leaders from both management and labor.

The integration process has evolved over the years since the Allegheny-Mohawk Labor Protective Provisions were originally enacted. There have been more failures at adopting fairness and equity than not to be sure. But it is incumbant for labor and management leadership this time to ensure that career expectations are met for all employees. Simply this concept means that the relative seniority of a combined list is not significantly different for a respective employee in a combined entity than it is for that employee today.

On the labor side, rigorous analysis of seniority lists can be done ahead of an announcement. My only hope is that Moak is being joined by his counterparts in Chicago, Minneapolis/St. Paul, Houston and other airline corporate homes. From what I read, Moak understands that a short implementation period is a friend of the deal and a long implementation period is well – just look at US Airways. Moreover, if pilots and other employees are seriously interested in a piece of equity ownership of the new entity, labor should absolutely want a short implementation period too.

Yes, There Are Employees Other Than Pilots

What makes any Delta combination interesting is the fact that other than the pilots and dispatchers, the company is non-union. Delta is a company that has trumpeted the idea of fair and equitable throughout its existence whether in union avoidance strategies directly or in the day to day management of its various class and crafts of employees. Whether conscious union avoidance or not, along the way you have to walk the walk and not just talk the talk. And in Atlanta there has obviously been more walkin’ the talk than talkin’ the walk.

Just How Might Delta’s Current Non Union Workforce Play Out

Any deal led by Delta, or involving Delta, opens up a potential union representation box. Stated otherwise, if a combination of any class and craft of employees involves two different unions, then more than likely there will be an election; and if there is a combination of any class and craft of employees where one is union and the other non-union, and the unionized group comprises 35% or more of the total employees, then there would likely be an election.

In the Delta combinations being discussed, in each case the pilots are organized and members of the same union so no representation elections are expected.

But the flight attendants are a different story. The Northwest and United flight attendants are represented by the Association of Flight Attendants, AFA-CWA. And given that a combined entity would be comprised of 35% or more union represented employees, a representation election would likely occur. In that election the flight attendants could either vote for AFA-CWA, another flight attendant union or for no representation in either merger scenario.

AFA-CWA has an organizing campaign underway at Delta. The decision point for the combined work force would be simply: am I better off working under a collective bargaining agreement or under the wage and working conditions employed by Delta with its current flight attendant work force.

As for the mechanics, this one also has some interesting nuances to it as well. Delta’s in house maintenance work force is unorganized and the company has begun to increase its insourcing of maintenance work. Each United and Northwest have been outsourcing an increasing amount of their maintenance work albeit for different reasons. Northwest’s mechanics were in effect disenfranchised by AMFA’s poorly conceived decision to strike Northwest and therefore, based on my read of the LPPs, the mechanics of a combined Delta – Northwest entity would not trigger a representation election. In a United - Delta combination, an election would be triggered but who the incumbent union would be is not known at United because currently the Teamsters are challenging AMFA. Got that?

As for the ground and related employees, the scenarios for either a Delta and Northwest or a Delta and United combination are the same. An election would more than likely be triggered given that the International Association of Machinists and Aerospace Workers (IAM) represent the various class and crafts of employees in this broad group at each Northwest and United. The definition of class and craft here will be a story to watch and they include ramp, customer service and reservations.

And more than likely, a representation election would be triggered by combining the dispatch groups. Although small in number, they are governed by the same rules as well.

Bigger Concerns than Unionization

In addition to the capable leadership of Moak, Delta management is led by Michael Campbell, their EVP of Human Resources, Labor Relations and Communications. Campbell was Gordon Bethune’s head of labor at Continental. The issues of representation and combining collective bargaining agreements are complicated for sure - but in capable and professional hands.

Should the investment community be concerned of union representation at Delta? No. The investment community should be more concerned with seeing that labor integration is done as quickly as possible, whether it involves unions or not, as this provides the shortest pathway to realizing merger synergies. For Delta, fairness and equity has been adopted at the Board level. Now it is law and this is important for many to consider when the naysayers repeatedly and continually tell us all to remember the menu of historic disasters.

At the end of the day, what was important for Delta yesterday will carry the same weight for Delta tomorrow. Given the current lack of unionization at the carrier, some might say that something was done right. Delta has historically understood that higher wages in return for commensurately higher productivity has served its employees and the company well. This concept is a most important model for the industry to sustain and will promise to be a most important theme in any upcoming negotiation. Further, it will be important for any combination to maintain - and sustain - the highest productivity possible as the industry needs to continue to shed fixed costs and not add to them.

Isn’t that really the issue behind today’s consolidation push anyway? I think Delta and others have learned from past mistakes.