August 25, 2017
The National Mediation Board and the RLA
Last time we talked about Section 6 of the Railway Labor Act and how it applies to our negotiations. The process of bargaining a new contract comes under the supervision of the NMB, or National Mediation Board. But who makes up this powerful organization and what do they do?
NLRA vs. RLA
First, we need to understand how transportation unions bargain in a completely different way than other labor groups. There are two major laws governing organized labor in the US: the Railway Labor Act (RLA) which covers railroad and airline workers, and the National Labor Relations Act (NLRA) which applies to all other unionized workers. Transportation has always been an essential industry in America, so much so that the RLA was signed into law nine years before the NLRA was created in 1935. The RLA is administered by the National Mediation Board (NMB), and the NLRA is enforced by the National Labor Relations Board (NLRB).
The key difference between the RLA and the NLRA is that under the RLA, airline transportation union contracts don’t expire at the end of their term. They become “amendable,” which means they remain in place after their amendable date until a new contract is reached or the parties are released to self-help: a strike, lockout or similar work action Under the NLRA, however, contracts DO expire and unions and management can take self-help action as soon as the expiration date is reached. Our contract has been amendable since 2010; fortunately, that contract was negotiated with an escalator clause that provides 1.5% annual pay raises for pilots so we have continued to see our rates increase even though we have been in negotiations for almost seven years.
Why is the bar set so much higher for airline workers? Because the stated goal of the RLA is to protect interstate commerce by avoiding transportation work stoppages (such as strikes or management lock-outs.)
While the organization is called the National Mediation Board, the NMB does much more than mediation -- the RLA gives the NMB authority to govern most transportation labor issues, including representation elections and contract negotiations. The NMB is made up of three members nominated by the President and confirmed by the US Senate. Typically, two board members are appointed from the sitting President’s political party, and the third member from the opposition party. The board self-nominates a chairman, usually once a year. Board members are appointed to three-year terms but they may serve until they are replaced.
The current NMB has been in flux since President Trump took office. With the change in the presidency, the Board will change from having two Democrats and one Republican to having two Republicans and one Democrat. However, the Republican member has recently left the Board for another position in the administration, and there has not yet been US Senate confirmation of any new Republican board member nominees.
The current members of the NMB are both appointees from the previous administration: Linda Puchala (chair) a former international president of the Association of Flight Attendants, and Harry Hoglander, a former TWA captain and MEC chairman who has also served as an ALPA Executive Vice-President.When the President’s new nominees are confirmed, ALPA hopes that Ms. Puchala will be retained as the Democratic board member. Captain Hoglander will step down and be replaced by one of the President’s Republican appointees.
In addition to the three board members, the NMB employs a team of professional mediators and other support staff. The NMB oversees almost 100 airlines and 470 railroads and their related unions.
What the NMB Does
The NMB has four program areas:
· Representation -- overseeing elections of employees seeking to join or change unions, and assuring elections occur without interference, influence or coercion.
· Mediation – assisting unions and management through the statutory bargaining process to reach a contract agreement, or releasing them to self-help if an impasse is reached. Contract negotiations are called a “major dispute” and more than 97 percent of the cases are resolved without resorting to self-help.
· Arbitration – resolution of “minor disputes,” or grievances, through a neutral decision-maker. The NMB has a larger role in this program area for railroads than for airlines. In the airline industry, typically most parties address and resolve their minor disputes through the grievance process and System Boards without ever involving the NMB, and it doesn’t employ arbitrators and doesn’t pay for arbitrations.
· Alternative Dispute Resolution (ADR) – voluntary grievance mediation, mediation/arbitration and other non-traditional methods of resolving grievances and labor-management disputes.
What the NMB Doesn’t Do
The NMB doesn’t mediate contract negotiations in any industry other than interstate airlines or railroads. It doesn’t have oversight over or investigate internal union matters. Unlike the NLRB, which issues decisions addressing alleged violations of the NLRA, the NMB does not issue decisions on disputes between unions, companies or individuals alleging violations of the RLA unrelated to the representation process. It also doesn’t handle Duty of Fair Representation cases against unions or conduct internal elections of union officials. It is not a party in bankruptcy proceedings.
Once the union and the company have entered mediation, a professional NMB mediator is assigned to handle the case. The federal mediator has statutory authority of the negotiation process and gains full control of the bargaining schedule. The NMB has a staff of about a dozen professional mediators, two of which are senior mediators, to handle all their rail and airline cases, and there are typically 90-110 mediation cases open at any given time. NMB mediators have decades of experience, some times as much as 20 years of contract work as a union official or a company labor relations executive before joining the NMB. Several are former pilots or flight attendants with previous MEC experience.
With only a dozen mediators to work on hundreds of rail and airline employee groups, the NMB places a high premium on only assigning mediators to a frequent bargaining schedule when it believes the union and management are close to what it calls the “zone of reasonableness” – in plain terms, when the two sides have moved away from their opening positions, have finished bargaining on the majority of their contract and are closer to compromise on the remaining items. Usually a mediator will not be assigned until the parties have only a few open items left to bargain; of course, these are often also the most critical, time-intensive contract sections like pay, benefits and scope.
As negotiations reach the end-game stage, individual NMB board members may get increasingly involved. The NMB may order the parties to hold their talks at their headquarters in Washington, DC, and a board member may sit in on negotiating sessions or even assist in mediating with the parties themselves. All of these moves are designed to apply pressure to both sides to achieve the NMB’s statutory goal of reaching a consensual agreement without having to resort to self-help and thus avoid a disruption to interstate commerce.
As we have been in negotiations for almost seven years, everyone would agree that it’s time for Air Wisconsin to reach the contract endgame. To this end, the MEC and Negotiating Committee are requesting that the mediator and the NMB apply more pressure to the company to bring our talks to a satisfactory close: a ratifiable tentative agreement with real value that we can present to you for your approval.
Your MEC and Negotiating Committee