For the last several decades, airline pilot compensation, work rules, and benefits have steadily eroded. The Railway Labor Act (RLA) sets the conditions upon which airline pilot labor unions must do battle against corporate executives to secure for pilots the quality of life that reflects the massive liability shouldered by flight deck crews as well as the enormous amount of revenue generated by them.

A variety of factors have driven the profession’s decline, but among them is a widespread misunderstanding of the RLA. Far and wide, airline pilots have opted to believe in fairy tales about the RLA instead of the truth. These fairy tales include self-defeating nonsense like, “The mediator will just put us on ice forever,” or “The President will never let us strike.”

The RLA is not, as many pilots believe, slanted against labor. But it does incline itself against those who are less informed. To the delight of airline corporate executives and the ghouls from airline labor relations consulting firms like the notoriously evil FordHarrison, that side has almost always been labor. Even right now, here on this very Delta APC forum, there is a poster going by the username of "norcalflyer" attempting to play upon the ignorance of Delta pilots around the issue of a mediator's ability to "park" or "put a dispute on ice" in order to intimidate pilots into folding.

This post is an attempt to dispel some of the most commonly clung-to myths that swirl around the RLA. Over the years, by causing pilots to fail to wield the full force of the leverage they have access to, these myths have cost the profession billions and individual pilots millions of dollars in lost lifetime income and who-knows-how-much loss in intangibles like time with family and health.

The RLA is the key to clawing back all that has been lost.

I have already posted what I'm posting below in a variety of places, but I thought I'd compile them here in one thread so that they'll all be in one place.
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On a mediator's ability to "park" or "put a dispute on ice" forever:

This is a myth that is repeatedly raised. It has been generated as a result of the fact that, as Congress intended and the courts have again and again noted, the processes of the Railway Labor Act (RLA) are purposely long and drawn out. They often require years to crawl to a conclusion. Most pilot groups lose patience with those processes long before they are fully exhausted. So, they end up capitulating – settling for far less than they could have achieved.

It's like the famous toddler’s marshmallow experiment conducted by Stanford University researchers in the 1970’s. The preschoolers who possessed the determination to delay gratification in order to wait for a larger, better reward later tended to have superior life outcomes as teenagers and adults across a variety of measures. Like petulant children, though, pilot groups almost invariably acquiesce to their shortsightedness. They opt to eat the single, measly marshmallow before the bigger, much sweeter reward arrives down the road.

In RLA cases, the courts have affirmed time and again that even though the RLA process of negotiation, mediation, cooling-off, and possibly, a Presidential Emergency Board (PEB) can seem endless, especially to those who don't understand the bigger picture, they are not, in fact, endless.

The National Mediation Board (NMB) cannot permanently keep the parties involved in a labor dispute in mediation. The mediator cannot "put a dispute on ice forever.” They cannot permanently "park" a dispute. This is rooted in the fact that labor has a right to strike under the RLA. Though many pilots claim that labor does not have the right to strike, the Supreme Court of the United States has stated the opposite. In a 1969 Supreme Court case involving an RLA dispute, Trainmen v. Jacksonville Terminal Company, the Supreme Court’s Justice Harlan, delivering the Court’s opinion, explained:

If the RLA granted to the mediator the power to forever bind a dispute in mediation, that means the mediator would thereby also own the ability to strip labor of what the Supreme Court described as “the cherished right to strike.” Since the Court characterized “the right to strike” as “integral” to the RLA, if the law imbued the mediator with license to permanently hold the parties in mediation, then the RLA would also transitively hand the mediator ability to disrupt the entire integrity of the RLA. Does that make any sense at all?

No, it does not. Congress never accorded the mediator the ability to unravel the complex fabric of the RLA. That is what would happen if the mediator could "park us" or “put us on ice forever.”

Though we’ve established that the mediator can’t "park" us or "put us on ice forever", we also know that mediator can hold us in mediation for quite some time. How long can a mediator hold a dispute in mediation?

The courts have established somewhat of a test for what could be called a "reasonable" amount of time to be held in mediation. From a 1990 US Court of Appeals opinion (Local 808 v. National Mediation Bd., 888 F. 2d 1428 (1989)):

In 2005, the International Association of Machinists and Aerospace Workers brought a motion against the NMB in federal district court (Intenational Ass'n of Macs. v. National Med. Bd., 374 F. Supp. 2d 135(2005)) to try force the NMB to proffer arbitration because the union felt like they had been held in meditation for too long. The judge in the case issued an explanation similar to the 1990 case above:

It is difficult to find specific information on enough disputes to determine a meaningful average for the length of "time in mediation" because the NMB does not publicly report those statistics. However, each dispute that goes to a PEB must publish a report that details when mediation began and ended. These reports can be helpful in becoming familiar with how long mediation lasts, especially in cases that ended up being released from mediation. A 2015 dispute involving railroad unions went to a PEB. It spent 15 months in mediation before arbitration was proffered. The most recent airline PEB occurred in 2001. It involved the mechanics at United Airlines. That dispute had spent 14 months in mediation before arbitration was proffered. The most recent airline pilot dispute to go a PEB was the famous 1997 American Airlines dispute. It spent 12 months in mediation before being released. Finally, the Delta Airlines pilot group has been in mediation since January 2020, a period, as of the date of this writing, that amounts to nearly three years.

However, the most well-publicized dispute handled by the NMB in recent memory as of late 2022, the railroad dispute involving a national coalition of 12 railroad worker unions representing 110,000 employees, spent only 136 days, or four and a half months, in mediation before the NMB terminated its mediation services in June 2022, proffered arbitration, and released the parties into a 30-day cooling-off period after the railroad unions declined arbitration.

Those railroad workers operate the system that moves one-third of US exports and approximately 40 percent of all long-distance freight in America. That the NMB released a group of workers many times larger than even the largest US airline pilot group and with a far more consequential impact on the flow of interstate commerce in the US than any one airline represents a potential sea change in the orientation of the NMB toward labor.

Taken together, the above information helps us to develop a sense of how long the NMB typically holds cases in mediation. That is important because the courts have established that when evaluating whether or not the NMB has held a dispute in mediation for too long, a comparison to the period of time other disputes have spent in mediation is an important part of the assessment.

A 1970 US Court of Appeals decision (International Ass'n of Mach. & A. Wkrs. v. National Med. Bd., 425 F. 2d 527(1970)) established a two-pronged legal test with regards to mediation conducted under the purview of the NMB:

The second component of that legal test creates the standard — “a period that is completely and patently unreasonable” — for determining whether or not a court may intervene in a dispute and force the NMB to terminate mediation. But what does “a period that is completely and patently unreasonable” mean? The same 2005 federal district court case referenced earlier (Intenational Ass'n of Macs. v. National Med. Bd) helps to tie together all of the information we have reviewed so far:

The determination of whether or not mediation has gone on for “a period that is completely and patently unreasonable” hinges to a large degree on how much time a case has spent in mediation relative to “the norm” or “customary” period that is determined by how long other disputes handled by the NMB have spent in mediation. Thus, as the time spent in mediation approaches, and then exceeds, “the norm” or “customary” amount of time for a dispute to spend in mediation, it becomes more and more likely that the amount of time in mediation could begin to be viewed as “completely and patently unreasonable.”

If the NMB does continue mediation on basis that "completely and patently unreasonable," the court in International Ass'n of Mach. & A. Wkrs. v. National Med. Bd, cited above, asserted:

If we take the above three ideas that the courts have established:

1. That there is an absolute right to strike preserved in the RLA
2. That there is a "norm" for the, or a "customary," amount of time to be held in mediation established by other disputes in mediation
3. That if the NMB exhibits patently bad faith by holding parties in mediation “for a period that is completely and patently unreasonably" without any hope of agreement, the courts can intervene to order a release from mediation.

We can begin to see that the idea that the NMB has the power to "park us" or "put us on ice forever" or never release us from mediation does not match with judicial opinions issued by the highest courts in America.

Without a doubt, the NMB has the ability to hold parties in mediation for years. I will add that, depending on how the court might assess the "time in mediation" in light of the interruption of the black swan event that was the pandemic, Delta has already been in mediation for just under three years.

That being said, the NMB is aware of what the courts have said about the length of mediation, though they would be loathe to let on that a dispute is anywhere near approaching the point of a termination of the NMB's services. Like the judge in Local 808 v. National Mediation Bd explained in response to the union when it alleged bad faith on the part of a NMB member ("Wallace") who told them their dispute would be "indefinitely" held in mediation:
In light of all of the above, perform a little thought experiment and ask yourself if Delta's current dispute ended up in court because DALPA claimed that Ms Jane Allen, the mediator assigned to your dispute, exercised bad faith when, according to username "norcalflyer," she allegedly told Delta's NC, "to take it or leave it, and they’d not release us because they consider the Company exceeded the NMB’s expectations"? Doesn't Ms Allen's statement sound eerily similar to mediator Wallace's assertion in the quote above? Don't you think the court might explain away Ms Allen's threat in the same way they explained away Wallace's threat? Don't you think the court might see right through Ms. Allen's ruse as nothing more than a simple tactic to apply pressure to the Delta pilots?

And don't forget: the NMB is not under oath when it's mediating your dispute: "The NMB is free to 'experiment with any mediation device that can fairly be said to be designed to settle a dispute without a strike and does not independently offend other laws'" (American Train Dispatchers v. Fort Smith R. Co., 121 F. 3d 267 (1997)) "Any device" includes lying, screaming, cajoling, threatening, making pained faces, table-pounding, foot-stomping, crying, and threatening to "park" or "put a dispute on ice forever." In fact, the the US Court of Appeals says better mediators "often" use deception as a way to apply pressure (Intern Ass'n of Machs v. Nat Mediation, 930 F. 2d 45 (1991)):
The NMB knows it cannot keep a dispute in mediation forever. But it can lie about its ability to do so all day long. And pilots fall for their lies year in and year out.

Airline management negotiating teams, especially with their very smart in-house and consultant attorneys and law firms like Ford Harrison are also aware of the above guardrails. They know that the NMB cannot keep a dispute in mediation forever.

The overwhelming majority of pilots, though, are a different story. Unaware of all or most of the information in this post, they succumb to “negotiating fatigue” and an inability to play the long game. That ignorance of the mediation landscape and the lack of will to understand the dynamics created by the law that governs how contracts are negotiated in their profession costs individual pilots and their families millions of dollars in lifetime career compensation. Moreover, it imposes an incalculable toll in more days away from home, poorer work rules, and lesser benefits that pilots and their loved ones are forced to tolerate because most pilots refuse to put in the work to understand the leverage they could wield if they merely understood the game that is created by the machinery of the RLA. Instead, they prefer the far easier task of believing myths and bullsh** fed to them by ill-informed “buddies,” unreliable media reporting, and individuals or organizations with dubious intent.