It is clear in the cases we have examined that the courts in RLA cases steer entirely clear of sizing up the merits of the proposal in a dispute as to their reasonableness or lack thereof, as to whether or not they’re affordable, and as to whether or not they comply with one side’s conception of industry standard. In the 1943 US Supreme Court case
Terminal Railroad Association of St. Louis V. Brotherhood of Railroad Trainmen, Justice Jackson, speaking for the court’s majority, wrote:
"The Railway Labor Act, like the National Labor Relations Act, does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them. The national interest expressed by those Acts is not primarily in the working conditions as such. So far as the Act itself is concerned these conditions may be as bad as the employees will tolerate or be made as good as they can bargain for. The Act does not fix and does not authorize anyone to fix generally applicable standards for working conditions. [43]"
Said succinctly in a later 1952 Supreme Court case regarding good faith bargaining, the federal government “may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements.”
[44] Instead, “as the Supreme Court acknowledged, speaking through Justice Black, the labor laws allow economic strength ultimately to control the establishment of contract terms, regardless of which side may have better reasons for its position … It is ‘permissible for a party to engage in `hard bargaining,' utilizing its economic power to its advantage to retain as many rights as possible’ subject only to necessity that there be a subjective ‘desire to reach ultimate agreement.’”
[45]
In fact, bad faith determinations are limited to whether the parties to a dispute have “exerted every reasonable effort to make and maintain agreements.” Have they shown up? Have they demonstrated an openness to listening to the other side? Have they demonstrated a desire to come to an agreement versus just going through the motions?
Making a reasonable argument that Southwest Airlines pilots ought to have career compensation, benefits, and work rules equal to or better than wide body airline pilots at The Big Three, FedEx, or UPS does not violate good faith bargaining nor the reasonability clause of the RLA. The idea that we must limit ourselves to an outdated notion that SWA pilots and our families are confined to a sort airline industry B-scale way of life is not required by the RLA nor federal labor law policy. The only reason we believe our negotiating posture must be hog-tied by the limits of what is considered “industry standard” for narrow body pilots is our own mythology and embracement of “the big lie.”
[43] Terminal Railroad Assn. of St. Louis v. Trainmen, 318 US 1, No. No. 218 (Supreme Court 1943).
[44] Labor Board v. American Ins. Co, 343.
[45] Independent Federation of Flight Attendants v. TWA, 682.