Mediation? Now?
09-11-2022 | 11:30 PM
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Mediation? Now?
Over on TOF, it seems there is much confusion over whether or not filing for mediation is a good move and, if it is, whether or not it is a smart step to take now.
Under the RLA, mediation opens the door to beginning to build the leverage of being able to credibly pose the threat of self-help. The threat of self-help, in the form of a strike or its more limited cousin, a "CHAOS" type of action, is the most powerful weapon legally available to labor. Mediation must be entered into and gone through in order to threaten the use of that weapon. Without entering into mediation, labor cannot wield this leverage. There is no other way under US law.
By the way, I'm not the one, by a long shot, who invented the idea that the threat of a strike is labor's most powerful source of leverage. Albert Rees, a Princeton economist who served as an advisor to President Ford and co-authored a landmark labor study with George P. Shultz, described the strike as, "by far the most important source of union power" in his book The Economics of Trade Unions. In a 1964 RLA case, the US Court of Appeals for the Fifth Circuit characterized the strike as "[letting] loose the full economic power" of labor. Joshua Javits, former chairman of the NMB, explained in a 2016 paper he published that "the employment of self-help - or its credible threat - is the most direct way to achieve a CBA."
It is critical to understand that we do not need to (and none of us want to) enter into a strike or any other kind of work action in order to turn the screws on management. The plausible threat of a strike, which occurs before any of us might walk off the job, applies significant pressure upon corporate executives. That pressure amps up dramatically as the possibility of a strike becomes nearer and more realistic. Know that this leverage will be active regardless of whether or not the President creates a 60-day Presidential Emergency Board (PEB) or whether or not Congress ultimately ends up intervening to thwart a strike.
How does this work in real life? There are two primary modes of operation by which this "pre-strike" leverage functions. John Livingood, the current Acting Director of the NMB's Office of Mediation Services, calls the first mode the "book-away phenomenon." He explains the book-away phenomenon:
Think about it. If you were going to book airline tickets for a vacation, a wedding, a family reunion, or whatever in City X and you heard that Southwest Airlines pilots might be on strike around the time you want to travel, would you book your tickets on Southwest or on a competing airline without those sorts of potentially plans-destroying labor issues brewing?
The second mode of "pre-strike" leverage occurs closer in time to a potential strike. As Livingood explains:
Think of this as kind of like what happened with the MAX grounding but for the entire fleet. Major, major headache and expense.
Neither the loss of revenue associated with the book-away phenomenon nor the costs incurred by having to secure the fleet in the face of a potential work stoppage are a price that management wants to pay. They know that if they allow mediation to go on too long without "[exerting] every reasonable effort" to come to terms acceptable to our pilot group that they face the very real possibility of having to grapple with both of the above. They don't want that.
Absent a benevolent corporate counterparty in a RLA-regulated negotiating environment, there is little doubt that entering into mediation unlocks the potential to, in time, seriously menace management's interests. It creates an incentive for management to begin to take seriously the interests of the pilot group. Previous NMB chairman Joshua Javits asserted, "without the credible threat of self-help, bargaining is likely to be even longer and more difficult than it is currently." Isn't it in our interest for bargaining to be shorter and less difficult?
But why should we file mediation now rather than at some later point down the road?
Because "time spent in mediation" matters a great deal when the NMB considers whether or not to declare an impasse during mediation. Is that just my opinion?
No, it's the opinion of the courts. The courts ultimately act as a check on the NMB's authority.
The first step to understanding why time in mediation matters is to understand that the Supreme Court of the United States recognizes that labor, under the RLA, has a right to strike. No authority under the RLA is empowered to strip labor of that right.
Some members of our pilot group have attempted to claim that we do not have a right to strike. But the Supreme Court explains otherwise:
If the NMB could hold our pilot group in mediation forever, as many within our pilot group contend, the NMB would also effectively strip us of our right to strike. Therefore, conceptually, the judiciary has established that there is a finite, but undefined, length of time that the NMB may hold a party in mediation.
In a 1989 case that came before the United States Court of Appeals for the DC Circuit, a union demanded (unsuccessfully) to be released from mediation. Part of their argument rested on the length of time they had spent in mediation. The court explained:
Since, among other reasons, the union involved in this particular case had not been involved in mediation longer than the average time of other RLA mediation cases, the court shot the union's motion down.
Note that in the above decision, "time in negotiations" was not mentioned at all. The court only considered time spent in mediation.
In an earlier 1970 suit also heard before the Court of Appeals for the DC Circuit, the court established a legal test by which to determine whether or not the court could intervene and order the NMB to declare an impasse. The second prong of that two-prong test evaluates time spent in mediation (note again, time spent in negotiations is not considered by the courts in this legal test). The court asserted:
The court's reasoning in the above two cases provides some insight into what it considers to be one of the guardrails (time in mediation) that constrains the NMB's power to hold a party in mediation. If time in mediation acts as an input into the legal test that determines if the NMB is acting outside of its authority to keep us in mediation, wouldn't it be better in that respect to start mediation sooner rather than later?
Though multiple courts have used terms like "almost interminable" and "purposely long and drawn out" to describe the processes of the RLA, the NMB's authority to bind us in mediation indefinitely is not unchecked.
Entering into mediation starts the timer toward building the leverage that can only exist and become fully cured after entering mediation. The 2010 Dunlop Report to the NMB reported, "One problem noted is that a party may prematurely file for mediation. This may be motivated by a desire to 'get on the clock' to establish an early start date in order to more persuasively argue later for a release." This tells me two things: 1) we don't want to file for mediation too early (don't worry, we're way past "too early" now), and 2) filing for mediation earlier (but not too early) rather than later is a strategy smart unions utilize because they understand the implications of all of the above.
Think of mediation as what is an often long and arduous pilgrimage to a place that, once arrived at, can infuse us with strength and power. If we never start the journey or if we give up and quit somewhere along the path, we'll never get to that place. The sooner we start, the sooner we get there.
We'd all love to get the contract of our dreams tomorrow. Unfortunately, that's simply not how it works in the industry we all have chosen to work. The RLA, for better or worse, is the field on which we must do battle to secure better futures for ourselves, our families, and our profession. We can try to pretend that the RLA is not what it is. But it is what it is. There are certain advantages it offers us as labor. If we refuse to take advantage of them, that's on us, not on Bob Jordan nor Carl Kuwitzky.
We try to teach our children to be able to operate successfully in the real world. But when it comes to the terms and conditions of our professional lives, it's as if we'd prefer to operate in a world of magical thinking where we haven't studied the laws of physics. We expect gravity not to hurt us when we fall. And we somehow expect jolly old Bob Jordan to realize just how "exceptional" the SWA pilot group is and come flying in with a miniature sleigh and eight tiny reindeer to hand us an industry-leading contract. It's Wizard of Oz stuff: great for kids, not great for full-grown adults.
We need to grow up and give the C-suite a reason to take us seriously.
Under the RLA, mediation opens the door to beginning to build the leverage of being able to credibly pose the threat of self-help. The threat of self-help, in the form of a strike or its more limited cousin, a "CHAOS" type of action, is the most powerful weapon legally available to labor. Mediation must be entered into and gone through in order to threaten the use of that weapon. Without entering into mediation, labor cannot wield this leverage. There is no other way under US law.
By the way, I'm not the one, by a long shot, who invented the idea that the threat of a strike is labor's most powerful source of leverage. Albert Rees, a Princeton economist who served as an advisor to President Ford and co-authored a landmark labor study with George P. Shultz, described the strike as, "by far the most important source of union power" in his book The Economics of Trade Unions. In a 1964 RLA case, the US Court of Appeals for the Fifth Circuit characterized the strike as "[letting] loose the full economic power" of labor. Joshua Javits, former chairman of the NMB, explained in a 2016 paper he published that "the employment of self-help - or its credible threat - is the most direct way to achieve a CBA."
It is critical to understand that we do not need to (and none of us want to) enter into a strike or any other kind of work action in order to turn the screws on management. The plausible threat of a strike, which occurs before any of us might walk off the job, applies significant pressure upon corporate executives. That pressure amps up dramatically as the possibility of a strike becomes nearer and more realistic. Know that this leverage will be active regardless of whether or not the President creates a 60-day Presidential Emergency Board (PEB) or whether or not Congress ultimately ends up intervening to thwart a strike.
How does this work in real life? There are two primary modes of operation by which this "pre-strike" leverage functions. John Livingood, the current Acting Director of the NMB's Office of Mediation Services, calls the first mode the "book-away phenomenon." He explains the book-away phenomenon:
... has the potential to occur when passengers find out that their flights may be cancelled, or disrupted, because the NMB released the parties from mediation in accordance with RLA Section 5 (Section 155) and triggered the potential for a work stoppage. Airline passengers with today's technology and access to reservation systems have the potential, en masse, to immediately reschedule their flights to try to avoid possible disruptions to their travel plans, thereby causing a potentially substantial loss of revenue/business that precedes the PEB, its report, or the potential for any work stoppage.
The second mode of "pre-strike" leverage occurs closer in time to a potential strike. As Livingood explains:
Significant and timely operational actions are required of an airline carrier in preparation for a potential work stoppage and are again required to reactivate operations at the end of the work stoppage. Costs associated with these required operational actions would increase with the size and complexity of operations.
Neither the loss of revenue associated with the book-away phenomenon nor the costs incurred by having to secure the fleet in the face of a potential work stoppage are a price that management wants to pay. They know that if they allow mediation to go on too long without "[exerting] every reasonable effort" to come to terms acceptable to our pilot group that they face the very real possibility of having to grapple with both of the above. They don't want that.
Absent a benevolent corporate counterparty in a RLA-regulated negotiating environment, there is little doubt that entering into mediation unlocks the potential to, in time, seriously menace management's interests. It creates an incentive for management to begin to take seriously the interests of the pilot group. Previous NMB chairman Joshua Javits asserted, "without the credible threat of self-help, bargaining is likely to be even longer and more difficult than it is currently." Isn't it in our interest for bargaining to be shorter and less difficult?
But why should we file mediation now rather than at some later point down the road?
Because "time spent in mediation" matters a great deal when the NMB considers whether or not to declare an impasse during mediation. Is that just my opinion?
No, it's the opinion of the courts. The courts ultimately act as a check on the NMB's authority.
The first step to understanding why time in mediation matters is to understand that the Supreme Court of the United States recognizes that labor, under the RLA, has a right to strike. No authority under the RLA is empowered to strip labor of that right.
Some members of our pilot group have attempted to claim that we do not have a right to strike. But the Supreme Court explains otherwise:
Implicit in the statutory scheme [of the RLA], however, is the ultimate right of the disputants to resort to self-help— "the inevitable alternative in a statutory scheme which deliberately denies the final power to compel arbitration." We have consistently so held in a long line of decisions.
In a 1989 case that came before the United States Court of Appeals for the DC Circuit, a union demanded (unsuccessfully) to be released from mediation. Part of their argument rested on the length of time they had spent in mediation. The court explained:
The 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 ... a court must compare the time in mediation with the time in mediation in all other RLA disputes.
Note that in the above decision, "time in negotiations" was not mentioned at all. The court only considered time spent in mediation.
In an earlier 1970 suit also heard before the Court of Appeals for the DC Circuit, the court established a legal test by which to determine whether or not the court could intervene and order the NMB to declare an impasse. The second prong of that two-prong test evaluates time spent in mediation (note again, time spent in negotiations is not considered by the courts in this legal test). The court asserted:
The Railway Labor Act taken as a whole does not fairly require the conclusion that the courts are without jurisdiction to provide a remedy if the Board continues mediation on a basis that is completely and patently arbitrary and for a period that is completely and patently unreasonable, notwithstanding the lack of any genuine hope or expectation that the parties will arrive at an agreement. Any such view of the act as removing judicial jurisdiction would raise serious constitutional questions.
Though multiple courts have used terms like "almost interminable" and "purposely long and drawn out" to describe the processes of the RLA, the NMB's authority to bind us in mediation indefinitely is not unchecked.
Entering into mediation starts the timer toward building the leverage that can only exist and become fully cured after entering mediation. The 2010 Dunlop Report to the NMB reported, "One problem noted is that a party may prematurely file for mediation. This may be motivated by a desire to 'get on the clock' to establish an early start date in order to more persuasively argue later for a release." This tells me two things: 1) we don't want to file for mediation too early (don't worry, we're way past "too early" now), and 2) filing for mediation earlier (but not too early) rather than later is a strategy smart unions utilize because they understand the implications of all of the above.
Think of mediation as what is an often long and arduous pilgrimage to a place that, once arrived at, can infuse us with strength and power. If we never start the journey or if we give up and quit somewhere along the path, we'll never get to that place. The sooner we start, the sooner we get there.
We'd all love to get the contract of our dreams tomorrow. Unfortunately, that's simply not how it works in the industry we all have chosen to work. The RLA, for better or worse, is the field on which we must do battle to secure better futures for ourselves, our families, and our profession. We can try to pretend that the RLA is not what it is. But it is what it is. There are certain advantages it offers us as labor. If we refuse to take advantage of them, that's on us, not on Bob Jordan nor Carl Kuwitzky.
We try to teach our children to be able to operate successfully in the real world. But when it comes to the terms and conditions of our professional lives, it's as if we'd prefer to operate in a world of magical thinking where we haven't studied the laws of physics. We expect gravity not to hurt us when we fall. And we somehow expect jolly old Bob Jordan to realize just how "exceptional" the SWA pilot group is and come flying in with a miniature sleigh and eight tiny reindeer to hand us an industry-leading contract. It's Wizard of Oz stuff: great for kids, not great for full-grown adults.
We need to grow up and give the C-suite a reason to take us seriously.
09-12-2022 | 02:35 AM
#2
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I must say I have almost started looking forward to your posts, as they are well written and very informative. I appreciate all the effort you are putting into them in addition to always learning something I didn't know prior. Let me ask you this, has the union said why they haven't filed for mediation or are they just stonewalling the question?
09-12-2022 | 04:50 AM
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From: DOWNGRADE COMPLETE: Thanks Gary. Thanks SWAPA.
It simply blows my mind that filing for mediation is even being discussed by SWAPA. Are they ****ing kidding me?! What world are they living in?
Have Carl & friends not shown their hands enough over the last two years to make it plainly obvious that they will drag this on as long as possible?
Does SWAPA not realize that we could file for mediation on a Monday and on Tuesday the Kompany could offer up an acceptable agreement to us if they chose to OUTSIDE OF MEDIATION?
FFS already….🤦♂️
Have Carl & friends not shown their hands enough over the last two years to make it plainly obvious that they will drag this on as long as possible?
Does SWAPA not realize that we could file for mediation on a Monday and on Tuesday the Kompany could offer up an acceptable agreement to us if they chose to OUTSIDE OF MEDIATION?
FFS already….🤦♂️
09-12-2022 | 05:35 AM
#4
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From: B737CA
Lew, thank you AGAIN. Thank you for taking time to educate people on RLA. Far too much ignorance on the line and that only serves at our own detriment.
Whack, the BOD is meeting this week. If they don't file for mediation, I think a recall would be in order.
Whack, the BOD is meeting this week. If they don't file for mediation, I think a recall would be in order.
09-12-2022 | 05:38 AM
#5
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From: DOWNGRADE COMPLETE: Thanks Gary. Thanks SWAPA.
I think I’m right there with you on that. If they don’t agree to file, I think we’re headed down the same path as UAL pilots having union leadership that is out of touch with reality.
09-12-2022 | 05:48 AM
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Mediation? Now?
Wow. Thank you for posting that. Its excellent. Can you please go post that on the SWAPA forum or allow someone here to link to it?
I have bombarded my reps with my factual based arguments on why we need to start the clock. I hope everyone else here is doing the same. The next BOD meeting is going to determine whether SWAPA requests mediation now or waits. I think (hope) it is a predetermined outcome, but I have been surprised before.
Just read the company's negotiation update and compare with SWAPA's. Prior to this last one, I used to just delete the company one since it was essentially worthless. I decided to read this last one with an open mind and put myself in their shoes. It was completely delusional and told outright lies. We are light years apart. The company even said that we may need mediation to bring us together.
I have bombarded my reps with my factual based arguments on why we need to start the clock. I hope everyone else here is doing the same. The next BOD meeting is going to determine whether SWAPA requests mediation now or waits. I think (hope) it is a predetermined outcome, but I have been surprised before.
Just read the company's negotiation update and compare with SWAPA's. Prior to this last one, I used to just delete the company one since it was essentially worthless. I decided to read this last one with an open mind and put myself in their shoes. It was completely delusional and told outright lies. We are light years apart. The company even said that we may need mediation to bring us together.
09-12-2022 | 06:36 AM
#7
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Joined: Dec 2017
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From: 737 FO
Lew, thanks for posting that. I’ve been making similar arguments on TOF, but none nearly as eloquent or well-researched as that.
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