Originally Posted by
WHACKMASTER
Exactly. Everyone needs to remember that just because a mediator ices a work group, that doesn’t mean that the company can’t meet outside mediation with said work group. They just need to feel “motivated” to do so.
And also, don’t forget that a mediator “ices” a dispute as a tactic to create pressure. A mediator can also threaten to put a dispute on ice and can lie about how long they’re going to put a dispute on ice. A mediator CANNOT, however, despite what TSMITR claims, ice a dispute forever.
Why do airline pilots believe the mediator is telling us the truth during mediation when a mediator's job is to get a deal, any deal, done as quickly as possible and when it's no secret that mediators are empowered to lie, cheat, or steal in their pursuit of clearing out their docket?
Successful mediators often liberally use blarney (hoomalimali in Hawaiian) as one of their mediation tools. The Chairman's statement may well have been a ploy. By inquiring as to the true meaning of such a statement we could well undermine its entire purpose by forcing the Board to admit it was a tactic to spur negotiations. (930 F.2d 45 (1991))
An NMB member may legitimately indicate an unwillingness to move a dispute out of mediation in order to pressure the parties to settle. The Board may let a case sit as a mediation tactic, and it may tell parties that it will let a case sit. Congress chose this necessarily protracted means for resolving railroad labor disputes. That one side feels disadvantaged by maintenance of the status quo is absolutely irrelevant under the law. It is the nature of disputes in mediation for one party to feel squeezed. (888 F.2d 1428 (1989))
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. 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:
Nowhere does the text of the Railway Labor Act specify what is to take place once these procedures have been exhausted without yielding resolution of the dispute. Implicit in the statutory scheme, however, is the ultimate right of the disputants to resort to self-help … We have consistently so held in a long line of decisions …When the machinery of industrial peace fails, the policy in all national labor legislation is to let loose the full economic power of each [party]. On the side of labor, it is the cherished right to strike." Whether the source of this right be found in a particular provision of the Railway Labor Act or in the scheme as a whole, it is integral to the Act.(394 US 369(1969))
If the RLA granted to the mediator the power to forever freeze a dispute in mediation, that means the mediator would thereby also own the ability to strip labor of what the Supreme Court described above 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 put us on ice forever.
The mediator may threaten to put us on ice, may actually put us on ice for a time, and may threaten to put us on ice “forever,” but the truth is all of the above are simply tactics to attempt to get one side or the other to capitulate. The mediator only has a limited ability to temporarily control the clock of negotiations.