Originally Posted by Check Essential

Carl-
I have to admit that I haven't been closely following the discussion over in the DPA thread. This exchange you've been having regarding the status of scope as a subject of mandatory bargaining has caught my eye however.
I'm pretty sure that you were correct in your initial interpretaion and PCL 128 is mistaken when he states that we can never strike over a scope issue. I believe his reading of the court's opinion is in error. He's overlooking a crucial distinction between that JAL Machinist's case and our current situation.
We already have a scope clause. It is part of an existing set of "rules and working conditions". The IAM contract with JAL had none. The IAM was trying to get their very first scope language. This wasn't about the machinists who were working under the agreement. They were trying to bring new people and new work sites under their jurisdiction. It wasn't really outsourcing because that work had never been "insourced". That's a huge difference. Look at these parapraghs from the court's ruling:

The primary impact of the scope proposal does not lie in these mandatory areas of bargaining. If adopted, its principal beneficiaries would be those persons hired to fill the newly created jobs. Nothing in the RLA obliges JAL to discuss with the Union issues of immediate concern only to individuals not yet included within the bargaining unit. See Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 179-80, 30 L. Ed. 2d 341, 92 S. Ct. 383 (1971); NLRB v. Local 445, supra.


The RLA was enacted in 1926 against a background of nearly forty years of frustration with unsuccessful legislative efforts to stabilize labor relations in the railroad industry. In unique fashion, it was drafted by representatives of the carriers and their employees and then enacted by the Congress. See International Association of Machinists v. Street, 367 U.S. 740, 758, 6 L. Ed. 2d 1141, 81 S. Ct. 1784 (1961). Testifying on behalf of the bill which they had written at hearings which preceded its passage, spokesmen for both labor and management emphasized that "the only kind of a dispute wherein there is any danger of . . . a strike is a dispute where there is a change sought in the existing rules and working conditions."

The court goes on to talk about the fact that the IAM's current employees are already protected by a no furlough clause and their job security is not dependent on JAL's discontinuance of "subcontracting". The IAM's attempt to open up this new area of bargaining and extend their contract far beyond its current "scope" was not something that they could strike about --- but that is definitely NOT the case if you are talking about the Delta Pilot Working Agreement.
We have a long established scope clause. It is an integral and vital part of our "rules and working conditions". We have been bargaining on that issue for years. Our job security is quite clearly dependent on the strength of our scope language. That is not a subject that management can now suddenly refuse to discuss. Our situation is very different from the JAL machinists.

PCL 128 didn't post the whole opinion. He left out some crucial passages. Specifically the last 4 or 5 paragraphs. Those sections of the opinion make it clear that the court is only saying that management can refuse to bargain over scope only when the union is seeking to substantially expand the reach of its contract and the job security of the existing workers is not really at issue. They are clearly not issuing a flat ruling that scope issues can never be the subject of a dispute that leads to a release to self-help. Its only if the particular scope issue is "peripheral" that you can't strike over it. That's not the case with major airline pilots these days.

Anyway, I've babbled enough. Bottom line is -- that case doesn't apply to us. I think both DALPA and the company have a duty to bargain over scope and either party could legitimately insist on their position all the way through to self-help under the RLA.

Here's a link to the full text if you're interested:

FindACase™ | Japan Air Lines Co. v. International Association of Machinists and Aerospace Workers

Originally Posted by Check Essential

Following on the heels of our RAH surrender, its a disturbing trend we have going here when the ALPA guys are so ready to capitulate on scope issues and claim there's nothing we can legally do about outsourcing and subcontracting.

The notion that we can't force management to bargain about scope and job security because its a "permissive" topic and we can never strike over those issues is just plain dangerous. Its even more loony than saying that Republic Air is not an air carrier.

Here's the Supreme Court on the issue:

The type of "contracting out" involved in this case -- the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment -- is a statutory subject of collective bargaining under § 8(d) of the Act.

We agree with the Court of Appeals that, on the facts of this case, the "contracting out" of the work previously performed by members of an existing bargaining unit is a subject about which the National Labor Relations Act requires employers and the representatives of their employees to bargain collectively.

http://supreme.justia.com/us/379/203/case.html