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Originally Posted by Zman81
You guys will be disappointed if you think an mediator is going to let that demand fly. Yes we believe the 737 should pay wide body pay. He/she will be like ok since your unrealistic we are going to throw you on ice for the next X amount of days. Which actually happens quite regularly during airline negotiations. This thing is going to go to an impass. One of the sides will file for mediation (usually the labor group). Then they will go through all the previous steps that they agreed to till finally the items that they haven’t. The mediator will try to bring both sides to an agreement. If they can’t well their is 3 things a mediator can do. Place the negotiations on ice/freeze, release for self help (strike), or a binding agreement both sides agree to that arbitrator draws. You will see stuff that is not industry average fixed!, you will see our pro’s in our contract continue, you will see retro, then for pay if we are the first ones outta the gate expect to see a bump up of 15-20% raise, with yearly %’s going out about 5 years. It’s the same theme at every single airline during every contract cycle. With the exception of Spirit cause the mediator felt that the company was being unrealistic.
Sounds like you might work for management. This kind of thinking regarding the RLA process contributes to us being willing to accept lagging contracts. It's some truth mixed and twisted with a lot more baloney and obfuscation.
The NMB is the executive agency charged by Congress with the task of executing the charter of the RLA:
to "avoid any interruption to commerce
or to the operation of any carrier
engaged therein", or as the NMB put it in their 2021 report to Congress, to facilitate "harmonious labor-management relations within two of the nation’s key transportation sectors: railroads and airlines."
First, off the bat. An NMB mediator can
NEVER force us into arbitration or to accept an arbitrated agreement. That can never happen involuntarily. That can only happen if BOTH sides agree to arbitration. And then, that can only happen after years of failed mediation under the purview of the NMB after the NMB declares an impasse. If the pilots of SWAPA ever agreed to arbitration, especially at that moment when our leverage would be near to reaching a crescendo, we would be absolute fools. I wouldn't put it past us.
An NMB mediator, once either party files for mediation and a mediator has been assigned to the dispute,
does have the power to control the pace of negotiations.
But only to an extent. His or her power is not unlimited. It's important to also understand that nothing the mediator says or does regarding the scheduling of negotiation sessions stops labor and management from meeting on their own outside of mediated sessions. We need to recognize why a mediator is given the limited ability to control (for a time) the pace of negotiations. What's the point?
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888 F.2d 1428 (1989) 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. As the Board explained, Wallace's remarks are simply the proper responses of a mediator who does not want to give one of the parties an indication that it no longer needs to negotiate in good faith. Parties who are told mediation may soon end have all the more reason, if they are dissatisfied with the mediation process, to harden their position and not participate in good faith. It is the nature of disputes in mediation for one party to feel squeezed.
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930 F.2d 45 (1991) Accordingly, although it is possible to construe the Chairman's remark as meaning that he is giving up on mediation, we do not think it appropriate for a court to examine a Board member's statements, made in the course of mediation, so critically. 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.
So, yes, mediators can "let a case sit as a mediation tactic." Mediators can also lie to our faces about putting us "on ice" (in the words of the court, use "blarney" or "hoomalimali") as a "ploy" or "a tactic to spur negotiations." The mediator's job is to get either side - they don't really care which side - to fold, to capitulate - to agree to a settlement as quickly as possible so as to preclude the possibility of an interruption of commerce. That's their job. So they will apply pressure to one or both sides to create the impression that bad consequences are in the offing if they don't settle. Like every other human, they like to do their job as efficiently and with as little effort as possible. These sorts of NMB pressure-inducing tactics are typically more effective on the side that has a poorer understanding of the RLA process and how the game is played. That side, especially at SWA, is almost always labor. Hence, NMB mediators generally find it easier to do their job by applying pressure on the side of labor (for example: "You are going on ice FOREVER!!!! and not getting your bonus or pay raise any time in the next five to ten years if you don't give up your ridiculous demand of wide body pay for flying 737's. You wanna go tell your membership they're not buying any new toys until 2030?")
But can a mediator actually delay our negotiations forever? Once we enter mediation, are we the plaything of the mediator until hell freezes over?
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384 U.S. 238 (1966) This is very close to a judgment that there shall be no strikes in the transportation business, a judgment which Congress rejected in drafting the Railway Labor Act. True, the Act was designed to maximize settlements and minimize strikes,but Congress stopped short of imposing compulsory arbitration, the most obvious technique to insure the settlement of disputes and to prevent strikes.
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394 U.S. 369 (1969) Both before and after enactment of the Railway Labor Act, as well as during congressional debates on the bill itself, proposals were advanced for replacing this final resort to economic warfare with compulsory arbitration and antistrike laws. But although Congress and the Executive have taken emergency ad hoc measures to compel the resolution of particular controversies,no such general provisions have ever been enacted. And for the settlement of major disputes, "the statutory scheme retains throughout the traditional voluntary processes of negotiation, mediation, voluntary arbitration, and conciliation. Every facility for bringing about agreement is provided and pressures for mobilizing public opinion are applied. The parties are required to submit to the successive procedures designed to induce agreement. But compulsions go only to insure that those procedures are exhausted before resort can be had to self-help. No authority is empowered to decide the dispute and no such power is intended, unless the parties themselves agree to arbitration."
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425 F.2d 527 (1970) The rights of self-help owned by both union and management have been deliberately preserved by Congress, albeit held in temporary abeyance. They survive, available for use when the statutory procedures to promote agreement are exhausted.
No, we're not. Congress set up the RLA to create a purposefully long and drawn-out process so that the chances of an interruption to commerce are minimized. But if the mediator could keep us in mediation forever or for an interminably long period of time, the mediator would have the power to strip both labor and management of their right (that's what the courts call it) to self-help. How long can the mediator keep us in mediation. It's a gray area. It's not spelled out in the RLA. But the courts give us some clues. For example:
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888 F.2d 1428The 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.
So, we must look to history to give us our guide. That's an entirely separate and very long and nuanced discussion in terms of how long airline (and to a lesser extent for us, railroad) labor disputes have spent in mediation before an impasse was declared, but we can safely say that mediation will last at least a period of three years before a mediator might consider declaring an impasse. It's not a simple black and white discussion because, for example, when lawsuits are filed while in mediation, the courts have viewed that in the past as stopping the mediation clock:
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888 F.2d 1428 (1989) First, in evaluating whether there has been patent official bad faith by virtue of the time a dispute has been in mediation, a court may not consider the time after a complaint has been filed ("Litigation time does not count as mediation time."). Thus, the District Court erroneously included the time after the complaint was filed in considering the time the dispute had been in mediation. The trial court stated that the dispute had been in mediation "for well over one thousand days," nearly three years. The time in mediation properly considered, however, was approximately two years. Thus, the District Court's determination that the dispute had been in mediation an "unusually long period of time," see id., was based on an incorrect assessment.
So, the discussion about what the NMB and NMB mediators can and can't really do is far more in-depth than Zman81 would have you believe. It is to management's advantage for labor to believe the sorts of things Zman81 is attempting to convince us of. Fortunately, they're not really true - especially not in the distorted way Zman81 is communicating them.
Also, it's important to note that neither SWAPA nor SWA have filed for mediation. Therefore, the timer hasn't even begun ticking on our dispute yet. That's very important to understand. We don't even begin to take the first step toward accruing leverage under the RLA until mediation begins.
However, that doesn't mean we don't have leverage outside of the RLA (like pickets) to create the impression among the public who have no idea how the RLA works that SWA pilots might be near a work stoppage. That sort of thing might create a book-away effect among our passengers if they believe SWA pilots might walk off the job. To be clear, though, and management 100% understands this, SWA pilots can never legally strike until the entire RLA process plays. That takes years. And we really haven't even started the clock on that process yet. IMO, unless SWAPA believes we have the possibility of scoring a major win pretty quickly via leverage created by pickets or the idea of a pilot shortage or something else, we are depriving ourselves of beginning the path toward the threat of real leverage under the RLA each day we have not filed for mediation.