Unfortunately, that’s not the way it works. In the eyes of the NMB and in the eyes of the courts, “time in mediation” is a much more important input into determining if a release is appropriate than “time in negotiations.” It’s not the only factor in determining when to release parties from mediation, but it’s an important factor.

For example, from a 1990 US Court of Appeals decision when a union was attempting to obtain a release from mediation by suing the NMB: “The time during which disputes between employees and commuter rail companies are in mediation must be compared with all other carrier disputes mediated before the Board. In this case, the Board has offered evidence that the time in mediation falls within the range of average times in other mediation cases.”

Notice the court didn’t make any mention of “time in negotiations.” The court only spoke of “time in mediation.” There are other examples from other court decisions that address the same concept.

While mediation is not simply an issue of timing, entering mediation expeditiously, but not too quickly so as to appear to be attempting to game the system, is all part of effectively leveraging the RLA.

The NMB acknowledged this issue of timing in their 2010 “Dunlop Report”: “One problem
noted is that a party may prematurely file for mediation. This may be motivated by a desire to ‘get on the clock’ to establish an early start date in order to more persuasively argue later for a release.” In other words, they’re giving credence 1) to the concept that filing for mediation earlier rather than later can make it easier to more persuasively argue later for a release, and, 2) we don’t want to file too early.