Originally Posted by
Traffic Alert
The market sets what we are worth, generally speaking. Just because we think it’s more, doesn’t make it reality. Industry leading, even if by 1% is still the highest paid NB in the world. Good luck fighting the NMB over that.
The NMB doesn't have any authority to force us to accept any rates or work rules we don't want to accept. The only power they have is a limited power over the clock - with an emphasis on the word "limited." They can not "park" us or "ice" us forever. Yes, of course, they want all of us to believe they can. Haven't you heard the quotes about the NMB's "blarney" and "hoomalimali"? The NMB tries to scare us into thinking we can never get released. And we usually believe them.
Here's the blarney quote for those who haven't read it before:
Successful mediators often liberally use blarney (hoomalimali in Hawaiian) as one of their mediation tools. The [NMB] 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.
Here's more FACTUAL information about reasonableness under the RLA (courtesy of Lew in
this thread), rather than opinion about what you
think the NMB
might do:
In a 1971 RLA case (
Chicago & North Western Railway Co. v. United Transportation Union, 402 U.S. 570 (1971)) that was heard before the Supreme Court that considered issues of reasonableness, the majority stated:
Finally, we must consider the Court of Appeals' position that the question whether a party had exerted every reasonable effort was committed by the Railway Labor Act to the National Mediation Board rather than to the courts. We believe that the legislative history of the Railway Labor Act rather plainly disproves this contention ... In light of these considerations, we think the conclusion inescapable that Congress intended the enforcement of [the reasonable effort clause of the RLA] to be overseen by appropriate judicial means rather than by the Mediation Board's retaining jurisdiction over the dispute.
The Supreme Court is saying that, when it comes down to it, it's not the NMB that determines what is reasonable if that is in question. It is the courts that determine what is reasonable in RLA disputes. Had DL's NC stuck to its guns and maintained that its demands were, in fact, reasonable, then it would have left DL management in the position of deciding to move toward the DL NC's position or not. Eventually, if neither side is moving toward the other's positions and both sides have satisfied the statutory requirements of reasonability by showing up for mediation sessions and demonstrating an openness to and a desire to come to an agreement, then if an agreement cannot be reached, the two sides are at an impasse.
Since the courts, not the NMB, are the arbiters of reasonability in RLA cases, what is considered reasonable bargaining under the RLA according to them? Maybe the best way to communicate the thrust of how the courts have opined on the issue is to simply list quotes from a variety of RLA court cases without comment. If you don't want to read through them, the gist is that courts only concern themselves with determining if the sides have demonstrated a desire to reach an agreement and steer almost entirely clear of ruling on reasonability based on how "extreme" or "greedy" a proposal may seem to the other side or to those outside the dispute.
Given that the courts have jurisdiction over reasonability determinations in RLA disputes, and that the courts have abstained themselves from finding unreasonability except in the most egregious cases, do you think the mediator's comments about the "zone of reasonableness" (referring to Delta's negotiations last year) might not have been a tactic designed to spur negotiations rather than a rightful and binding determination of reasonability in the DL dispute? If DL management had taken DL ALPA to court to obtain some sort of injunction against them for the alleged unreasonability of their demands, DL management likely would have lost the case.
"Proposals described as "obstinate and unyielding" do not violate [the RLA]. In addition, "[m]ere insistence on demands that seem extremely harsh to the other side and that a neutral party may consider `hard' is not a violation of bargaining duties." (Trans World Airlines, 682 F. Supp). This rule has two important implications. First, "movement toward the position of the other side is not a requirement of good faith bargaining." Second, "[a]n employer may insist on positions . . . even if the union may consider the proposals greedy." (Air Line Pilots Association International, Plaintiff, v. Spirit Airlines, Inc. Defendant. Case No. 08-CV-13785)
The court can find no previous decision under the RLA, nor can TIA suggest one, which has inferred lack of reasonable effort solely from the size of the proposals put forth by the parties." The court noted that the union had reduced its proposals on two occasions, and characterized the bargaining as "obstinate and unyielding" but not in violation of the statutory standards.(Trans Intern. Airlines v. Intern. Broth., Etc., 650 F. 2d 949)
Here, by contrast, USAPA argues that defendants' proposal is unreasonable because it does not conform to industry standards as USAPA defines them. In order to assess this contention, the court would be forced to assess the substantive proposals of each party and to weigh their reasonableness. Doing so would take the court beyond the permissible scope of a bad faith bargaining inquiry. ("The Court cannot, and will not, evaluate these substantive negotiation proposals or weigh their reasonableness.") ("[G]reat circumspection should be used in going beyond cases involving `desire not to reach an agreement,' for doing so risks infringement of the strong federal labor policy against governmental interference with the substantive terms of collective-bargaining agreements.") (US Airlines Pilots Ass'n v. US Airways, Inc., 859 F. Supp. 2d 283)
For present purposes I accept as a persuasive and authoritative ruling the decision of Chief Judge Peckham in Trans Intl. Airlines v. Teamsters, 96 LRRM 2763 (N.D.Cal.1977), affirmed in an opinion by then-Judge Kennedy, 650 F.2d 949 (9th Cir. 1980). The union was there making demands that the airline contended would impose costs equal to a tripling of the flight attendant payroll. The union disputed the claim that there would be a cost increase estimated to be 294% but Chief Judge Peckham found it simply "unnecessary to the resolution [of the good faith bargaining issue] to determine the actual figures. TIA is effectively asking the court to hold that the sheer size of the Teamsters' economic demands, and the distance between the parties after a long period of negotiations, amounts to a lack of reasonable effort by the union to reach an agreement." 96 LRRM at 2765. The district court concluded it was forbidden by "`the strong federal labor policy against governmental interference with the substantive terms of collective-bargaining agreements'" from pursuing the matter further. (Independent Federation of Flight Attendants v. TWA, 682 F. Supp. 1003)
...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.’ (Independent Federation of Flight Attendants v. TWA, 682 F. Supp. 1003)
REA is a private enterprise corporation operating under a laissez faire economy; the circumstance that it cannot meet the demands of a competitive system and may face bankruptcy, if such be the fact, does not require its employees to accept a wage they deem inadequate and to surrender their legal right to strike once the procedures under the [RLA] have been met. To hold that the employees' assertion of their rights manifests a failure to exert every reasonable effort to resolve all disputes and thereby constitutes a [RLA] violation is without validity. It suggests that a court has the power to apply a coercive force upon the employees to yield to the carrier's offer even though they deem it inadequate—in effect, it would impose upon them the financing of an undercapitalized carrier … While BRAC was required to exert every reasonable effort to end the dispute, this did not mean that it was required to surrender its position entirely, or the legal rights of its members. (REA Express, Inc. v. BROTHERHOOD OF RAILWAY, ETC., 358 F. Supp. 760)
Whether the pilots' [negotiating] position was right or wrong, wise or unwise, economically sound or unsound, are questions with which this court is not concerned. If the processes of the Railway Labor Act could not resolve these questions, this court can certainly not resolve them, nor is it its function to do so. (Independent Federation of Flight Attendants v. TWA, 682 F. Supp. 1003)