Last October the Pilot group rejected the TA that was brought forth by the MEC and the Negotiators. At that time we pledged to go back to the pilot group and make a fresh start to ensure that we knew exactly what you needed and wanted before we reopened negotiations. Since then the leadership and negotiating team has been active in building the structure to resume contract talks this year. We still remain engaged in Section 6: the web survey is complete, phone polling is underway, and the MEC is looking for a replacement member of the Negotiating Committee.
Just as important as the surveys and the act of passing proposals back and forth between the two parties is to have the general membership understand how this all works and the laws that govern this process. Over the next couple of X-Rays we will be giving everyone a refresher on the bargaining process.
The Railway Labor Act
To know how The Railway Labor Act (RLA) affects you in today’s bargaining world, we need a short history lesson: The RLA became law in 1926 to provide a means of resolving labor disputes between railroad employees and their management. In 1936, the law was amended to include airline employees. The RLA is designed to minimize disruptions due to work stoppage to the national transportation system by structuring a formal process of dispute resolution and negotiations. The RLA also provides the framework for worker representation. The Act is administered by the National Mediation Board (NMB).
We often get questions from crewmembers about the process of Section 6 negotiations under the Railway Labor Act, and how mediation and arbitration works, so we’re providing a summary of those stages of the process below for a better understanding.
“Section 6” refers to the section of the Railway Labor Act that addresses the legal process for negotiating changes to employee union contracts as they approach their amendable date. Our amendable date in the current contract was October 1, 2011 allowing for a 365-day early opener. Air Wisconsin Airlines Corp and the Association entered into Section 6 in October 2010.
The amendable date of an airline collective bargaining agreement is not like an end date in other industries’ union contracts. Non-air and rail industries are regulated by a completely different law which allows strikes, lockouts or other unilateral contract changes as soon as a contract expires. Rather, under the RLA’s processes air and rail contracts never expire, they only become amendable and remain in force until a new contract is ratified.
The NMB has a wide range of discretion to hold the parties in mediated negotiations for a significant period. In our case we have been in mediated negotiations after the Company filed for NMB mediated assistance in the summer of 2013. During this time the legal “status quo” continues, which prevents self-help by the employees and a lockout of employees or unilateral changes to the contract by the Company that are not arguably justified by the existing contract.
At any time during negotiations, if either or both parties feel that negotiations aren’t progressing, they can request that the NMB begin the official mediation process under the RLA. Typically, this is most productive when there are a limited number of remaining open issues. In our case, AWAC applied for mediation in the summer of 2013 with a very large number of open issues. But as you know, we came to agreement under mediated negotiations more than 2 years after the company filed. And even though the TA was rejected we still remain under mediated contract negotiations with the NMB. Although every contract is different, we’ve been told the average NMB mediation lasts about 29 months. As we write this we have been in mediation for 31 months.
The mediator does not have the authority to impose conditions upon the parties or decide issues. Instead, the mediator is trained to bridge gaps between the parties’ positions and offer a range of potential solutions to help the parties reach an agreement. He/she does this by various ways, including encouraging brainstorming by the parties in joint or separate sessions with the mediator. He also will ask the parties to consider various objective measures, including the industry as a whole, relevant comparators in the particular sector of the industry, and the financial and operational performance of the Company. Some of the principal tools of the mediator are setting the location of meetings and slowing down or speeding up the negotiating schedule and process, depending on which party the mediator believes is making the most reasonable efforts to reach an agreement.
During mediation, the legal “status quo” remains in effect. That means that, as during direct negotiations, that the union and pilots cannot take job actions and the Company cannot make unilateral changes that are not arguably justified by the terms of the existing contract. Mediated talks will continue until the mediator determines that continued talks are unlikely to yield an agreement. At that point, one of the three Presidentially-appointed NMB members may become more directly involved in the process to help assess the status of bargaining and to use various ways to encourage more movement toward agreement.
If and when the professional mediator and the appointed NMB member determine that an impasse has occurred and more negotiating sessions are not likely to lead to an agreement, the Board is required under the RLA to issue a Proffer of Arbitration to settle any remaining open issues. If either party does not accept that proffer, the parties enter a 30-day cooling off period before they are released to self-help.
If the parties are at an impasse and both parties accept the NMB’s offer of binding arbitration to settle the remaining open issues, they will submit their remaining open issues to an arbitrator or panel of arbitrators to resolve. The decision of the arbitrator(s) is final and binding (the NMB is also free to offer various binding and non-binding forms of arbitration to the parties at prior times during mediated negotiations). This process is most effective when relatively few issues remain open and it has been used more in the railroad than the airline industry.
30-Day Cooling-Off Period
If and when either party rejects the offer for binding arbitration, the NMB will release the parties into a 30- day cooling-off period. Contrary to its name, the 30-day cooling-off period is often the time of the greatest tension and most intense negotiations. Both parties must continue to adhere to the status-quo obligation. During this time, the NMB will often convene the two parties for extensive meetings in what is sometimes referred to as “super mediation.” Often the two sides meet around the clock, though this may not occur until the final days of the 30-day period as the deadline approaches and pressure builds.
If the two parties are unable to reach an agreement by the end of the 30-day cooling-off period, they are free to engage in self-help actions. Self-help is the legal term for the actions management and/or employees are legally permitted to take when both parties have gone through the RLA collective bargaining process without reaching a negotiated settlement. In some cases, the two parties may mutually agree to not engage in self-help after the 30-day cooling-off period deadline (essentially agreeing to refrain from exercising self-help) if they believe they are close to reaching an agreement and wish to continue negotiating.
Court decisions have made clear that the scope of permissible self-help, once the RLA processes have been fully exhausted, is broad. For employees, permissible actions include but are not limited to general strikes and intermittent work stoppages (that is, “selective” or “rolling” strikes). Airline managements’ self-help options include but are not limited to locking out employees from work without pay, replacing striking workers with replacements and/or making significant but not unlimited types of unilateral changes in work rules, pay, and other terms of employment. What is extremely important to understand here is that this type of action by either party is only permissible after the NMB has released the parties and the 30-day cooling off period is complete. Any type of behavior prior to this step in the marathon will be considered unlawful in the eyes of the court.
Presidential Emergency Board
The RLA also authorizes the NMB to recommend, and the President to create with or without NMB recommendation, an emergency board to investigate and report on a dispute over the terms of a collective bargaining agreement. Under the Railway Labor Act, the President may exercise his discretion to create an emergency board when the labor dispute threatens "substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service." This determination depends on various factors, but important among them is the size and geographical scope of the carrier and its effect on commerce.
Creation of an emergency board delays a strike, lockout or other form of self-help, generally for 60 days. The emergency board has 30 days to issue its report. Generally, emergency boards provide recommendations for settlement of the dispute. After the emergency board reports to the President, the parties to the dispute have another 30 day cooling off period to consider the recommendations of the emergency board and to reach an agreement.
If no agreement is reached at the end of the cooling off period, and if Congress does not legislate a settlement to the agreement, then the parties may engage in self-help, including strikes, lockouts and unilateral changes in terms and conditions of employment.
As we stated as the beginning of this message, the Railway Labor Act was created to minimize strikes that could disrupt the transportation system. Its goal is not to help labor get a good contract, or assist management in reining in its costs. The process is a marathon and not a sprint, especially if used to its fullest extent. The full process also leaves the ultimate outcome largely out of the parties’ control. Thus, most parties reach agreement before using use all the steps in the process as described above.
As we enter this new year we are still engaged in mediated Section 6 contract negotiations. The MEC and the Negotiators are eager to review the web survey and phone poll results and use that data to focus our efforts at the negotiating table. As it has always been, our goal is to achieve the best possible contract for our members.