Lewbronski

INTRODUCTION

Discussions about negotiations under the Railway Labor Act (RLA) feature terms such as “good faith bargaining,” “bad faith bargaining,” “reasonable effort,” “reasonable” contractual demands, “industry standard,” “squozen balloon,” “golden goose,” “narrow body contract,” “wide body contract,” and “affordability.”

What do these terms mean? How do they apply to RLA negotiations and mediation? Does understanding them make a difference in an airline labor union’s ability to secure an industry-leading contract under the RLA? Does the RLA provide the latitude required for the pilots of SWA to achieve a mature, industry-leading contract that recognizes our professional ability, the amount of liability we shoulder, the considerable risks we face, the revenue we generate, and the reality of today’s pilot hiring market? Does the RLA provide SWAPA pilots the bargaining power to demand and attain a contract that equals or exceeds the lifetime career compensation and level of benefits enjoyed by the pilots at “The Big Three” legacy airlines, FedEx, and UPS?

BACKGROUND

In a nutshell: Attempts to prove bad faith bargaining typically fail absent an outright refusal to bargain at all [1],[2],[3] or to bargain in such a way as to evince an intent to merely "[go] through the motions with `a desire not to reach an agreement.'" [4],[5]

There is no explicit command to bargain in "good faith" under the RLA. The RLA mandates that both sides "exert every reasonable effort to make and maintain agreements." The US Supreme Court calls this duty “the heart of the RLA.” [6] The courts have interpreted this requirement to "exert every reasonable effort," “with respect to the like provisions of the National Labor Relations Act” (NLRA). [7],[8] They have established that “the duty to `exert every reasonable effort' imposed by the RLA requires at least `the avoidance of bad faith as defined' under the NLRA.'" [9],[10]

The NLRA states:A 1958 RLA case involving American Airlines put it this way, “The requirement of good faith bargaining is really a requirement of absence of bad faith. In order to show such lack of good faith it is necessary to establish facts from which it can be reasonably inferred that a party enters upon a course of bargaining and pursues it with the desire or intent not to enter into an agreement at all.” [11]

The case precedent that has built up around the requirement to bargain in good faith mostly concerns cases where there was an outright refusal to bargain at all [12],[13],[14] or to bargain in such a way as to evince an intent to merely "[go] through the motions with `a desire not to reach an agreement.'" [15],[16]

Examples given of bad faith bargaining from a 1992 case involving Horizon’s flight attendants include “[proposals that] allowed Horizon to unilaterally change any work rule at any time for any reason and required the union to recruit replacement workers during strikes.” [17] In the same case, the court cited the conduct of Horizon’s chief negotiator, Arthur Thomas, as evidencing bad faith. The court referenced several quotes from Thomas’ testimony in the case as evidence of “[an attitude of] arrogance, intimidation and intractability" and "[exceeding] that of a strong advocate of company proposals:In a 2012 US Airways case, the court provided illustrations of bad faith bargaining such as “refusing to meet with union representatives, to accede to a union's request for NMB assistance, or to disclose relevant data to unions during negotiations.” [19]

On the other hand, in the same case, the court said that all of the company’s alleged bad faith bargaining behaviors cited below by the union fell short of the standard required to be found in violation of the RLA:While it is common during negotiations and mediation for one or both sides to accuse the other of bad faith bargaining, unless there has been an egregious flouting of the RLA’s requirement to “exert every reasonable effort to make and maintain agreements,” those accusations have not typically been upheld in court. The key takeaway, then, is that proving bad faith bargaining requires substantially flagrant conduct. In practice, a minimum demonstration of reasonability and openness to persuasion has been able to defeat accusations of bad faith.

THE SQUOZEN BALLOON

In a nutshell:

“It is well settled, however, that movement toward the position of the other side is not a requirement of good faith bargaining.”

“Courts must resist finding violations of the RLA based solely on evidence of hard bargaining, inability to reach agreement, or intransigent positions.”

“…bargaining positions do not violate the statutory standards merely because they are ‘obstinate and unyielding,’"

Many people in our pilot group believe that the RLA’s good faith bargaining mandate requires SWAPA to move toward the position of the company as part of the process of negotiations – “to give something up in order to get something.” This is what some describe as “the squozen balloon.” It’s an analogy derived from the idea that if one part of a balloon is squeezed, another part of the balloon must accommodate the squeeze by giving way in some fashion. It was heavily promulgated (and still is to some degree) by representatives of SWAPA during the “SWAPA 1.0” era, which began to peter out in late 2015.

However, the courts have determined that the squozen balloon approach to contract negotiations in not required of good faith bargaining. A 1988 TWA case pointed to labor law precedent to explain, “It is well settled, however, that movement toward the position of the other side is not a requirement of good faith bargaining.” [21],[22],[23],[24],[25]

While the courts have made clear concessions are not required, the two sides are “obliged to make some reasonable effort in some direction to compose [their] differences…” [26] Said another way, “While the obligation to ‘confer in good faith’ does not require the making of a concession, it does require each party to be receptive to persuasion.” [27]

But the requirement to be receptive to persuasion only goes so far. In 1971, a federal district court judge emphasized, “The Court finds that if good faith bargaining should be held to require each party to modify its position until an agreement is reached, that in effect would abolish the right of either side to resort to self help. That would contravene and defeat the [RLA] and empower this Court to arbitrate the controversy. Only Congress has the jurisdiction to grant this Court such power.” [28]

In the Horizon case discussed earlier, as part of the court’s delineation of the differences between good and bad faith bargaining, the court made plain that, “Courts must resist finding violations of the RLA based solely on evidence of hard bargaining, inability to reach agreement, or intransigent positions.” [29] Multiple courts have also emphasized “that proposals described as ‘obstinate and unyielding’ do not violate [the RLA].” [30],[31],[32]

The judge in the 2012 US Airways case also referenced earlier provided a wealth of additional insight into the rationale behind the common law principle that “hard bargaining,” and “intransigent” or “obstinate and unyielding” positions do, in fact, comply with the RLA’s requirement to “exert every reasonable effort to make and maintain agreements”:While many pilots insist that the law requires unions to make moves to the position of management and vice versa during contract negotiations, the courts have specifically and repeatedly denied that is true as the above cases demonstrate. Like the judge in the 1988 TWA flight attendants’ case divulged, if the law required the parties to RLA negotiations to give something in order to get something, “insincerity would be mandated by law, forcing parties to take positions and make first-offer assertions they do not really mean. While this may be common practice, by lawyers in litigation and otherwise, it is not the only permissible technique in collective bargaining.” [36]

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Lewbronski

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NARROW BODY ONLY?

In a nutshell:

“… 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.’” [37]

“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. [The airline] 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.’ 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.” [38]

At Southwest Airlines, a “big lie” has been embraced as truth by its pilots. The big lie is that the RLA or some other legal precept dictates that SWAPA must limit its contractual demands to the realm of what it believes is industry standard for narrow body pilots. It is not uncommon at all to hear a Southwest Airlines pilot make a comment like, “We should be the best paid 737 pilots in the world.” When a pilot says something like that, it reveals how deeply accepted the big lie is at Southwest Airlines.

There is nothing in the law that insists Southwest Airlines pilots cannot demand the best contract in the industry, period. There is no reason to limit our demands to the confines of what is considered industry standard for other narrow body pilots. The law only requires that we “exert every reasonable effort to make and maintain agreements.”

For example, a perfectly reasonable argument can be made that, due to the additional liability and risk Southwest Airlines pilots shoulder as a result of the number of takeoffs, landings, and block hours we fly, because of the amount of revenue we generate for the corporation, and due to the economic power we wield in the current pilot market, we deserve the global airline industry’s best contract.

One of the driving forces behind the insistence on restricting ourselves to what is thought of as industry standard for a narrow body airline is belief in a fiction that the RLA requires our demands to be “affordable,” however that may be defined. Debatably, that may be a wise approach to negotiations. That’s another discussion. But the fact is that affordability is not a stipulation demanded by the RLA nor the common law that has grown up around the RLA.

The 1980 instance of the flight attendants of Trans International Airlines (TIA) is instructive. In 1977, the flight attendants of TIA struck. In a complicated case that was ultimately heard by the US Court of Appeals for the 9th Circuit, TIA claimed that during their negotiations and mediation, the flight attendants bargained in bad faith. TIA pointed to the flight attendants’ contractual demands that “exceeded 200% of TIA's total company-wide profits for 1976 and represented a 294.6% increase in flight attendant payroll costs” as evidence of their bad faith.[39]

TIA’s bad faith bargaining contention against the flight attendants was shot down. In 2009, the court in a case involving Spirit Airlines’ pilots referring to TIA’s bad faith bargaining allegations, explained why the flight attendants’ demands were not found to be in violation of the RLA’s “reasonable effort” clause:That is very interesting. Even though the flight attendants’ contractual proposal allegedly would have increased TIA’s flight attendant payroll costs by nearly 300%, a figure that represents more than 200% of TIA’s total profit the year before, the judge reported that it was not the government’s role vis a vis the RLA to dictate what can and cannot be included in the terms of a collective bargaining agreement, even if it means payroll expenses for the contract in question would increase by close to 300%.

Nor is it within the government’s authority under the RLA to call foul if a union’s demands are deemed by management so unaffordable that, if met, those demands might drive a company into bankruptcy. In 1973, the Brotherhood of Railway, Airline, and Steamship Clerks, Freight Handlers, Express and Station Employees of the AFL-CIO (BRAC) were sued by their railroad employer, REA Express, for an alleged breach of good faith bargaining. REA Express contended that, among other things, BRAC’s wage demands exceeded the bounds of reasonability because “to comply with the Union demands in any substantial measure, without working rule changes and implementation of a consolidation program, would force it into bankruptcy.” [41] This is a variation of the argument often heard among Southwest Airlines pilots called “choking the golden goose.”

Despite intense extended negotiations under the supervision of the NMB, the two parties could not agree to terms, and a strike ensued. REA Express argued in their motion before the federal district court that BRAC’s strike was illegal because it had breached its duty of good faith bargaining when it refused to agree to the contract put forward by REA Express that it claimed would enable it to avoid bankruptcy. The court rejected REA Express’ argument, concluding:We have seen how the courts have ruled that even what management alleged were wildly expensive, bad faith contractual proposals from unions, those proposals did not defy the RLA. What about proposals that do not lie within the territory circumscribed by what one party to a dispute, or the other, might call “industry standard”?

Back to the 2012 USAPA case already discussed. USAPA characterized US Air’s contractual offer as “unreasonable” because it did not conform to its idea of industry standard. But the judge did not see it that way. He refuted USAPA, stating, “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.’”

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: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.”


[1] In re Northwest Airlines Corp, 483 F. 3d 160, No. Docket No. 06-4371-cv (L) (Court of Appeals, 2nd Circuit 2007).
[2] Virginian Ry. v. Federation, 300 US 515, No. No. 324 (Supreme Court 1937).
[3] NLRB v. Katz, 369 US 736, No. No. 222 (Supreme Court 1962).
[4] National Labor Relations Bd. v. Reed & Prince Mfg. Co, 205 F. 2d 131, No. No. 4647 (Court of Appeals, 1st Circuit 1953).
[5] Association of Flight Attendants v. Horizon Air, 976 F. 2d 541, No. No. 90-35807 (Court of Appeals, 9th Circuit 1992).
[6] Trainmen v. Jacksonville Terminal Co, 394 US 369, No. No. 69 (Supreme Court 1969).
[7] Steele v. Louisville & Nashville R. Co, 323 US 192, No. No. 45 (Supreme Court 1944).
[8] BROTHERHOOD, ETC. v. Atlantic Coast Line R. Co, 201 F. 2d 36, No. No. 6489 (Court of Appeals, 4th Circuit 1953).
[9] BNSF RY. v. INTERN. ASS'N, SHEET METAL, AIR, RAIL, 973 F. 3d 326, No. No. 20-10162 (Court of Appeals, 5th Circuit 2020).
[10] Association of Flight Attendants v. Horizon Air, 976.
[11] American Airlines, Inc. v. Air Line Pilots Ass'n, Inter, 169 F. Supp. 777 (Dist. Court, SD New York 1958).
[12] In re Northwest Airlines Corp, 483.
[13] Virginian Ry. v. Federation, 300.
[14] NLRB v. Katz, 369.
[15] National Labor Relations Bd. v. Reed & Prince Mfg. Co, 205.
[16] Association of Flight Attendants v. Horizon Air, 976.
[17] Association of Flight Attendants v. Horizon Air, 976.
[18] Association of Flight Attendants v. Horizon Air, 976.
[19] US Airlines Pilots Ass'n v. US Airways, Inc, 859 F. Supp. 2d 283, No. No. 11-CV-2579 (ARR)(SMG) (Dist. Court, ED New York 2012).
[20] US Airlines Pilots Ass'n v. US Airways, Inc, 859.
[21] Independent Federation of Flight Attendants v. TWA, 682 F. Supp. 1003, No. No. 86-6030-CV-SJ-6 (Dist. Court, WD Missouri 1988).
[22] Labor Board v. American Ins. Co, 343 US 395, No. No. 126 (Supreme Court 1952).
[23] Wal-Lite Division of United States Gypsum Co. v. NLRB, 484 F. 2d 108, No. No. 72-1773 (Court of Appeals, 8th Circuit 1973).
[24] AIR LINE PILOTS ASSOCIATION INTERNATIONAL v. Spirit Airlines, Inc, No. Case No. 08-CV-13785 (Dist. Court, ED Michigan 2009).
[25] US Airlines Pilots Ass'n v. US Airways, Inc, 859.
[26] National Labor Relations Bd. v. Reed & Prince Mfg. Co, 205.
[27] National Labor Relations Board, Decisions and Orders of the National Labor Relations Board: January 20 Through March 14, 1979, (Washington, DC: US Government Printing Office, 1980).
[28] Chicago & NW Ry. Co. v. United Transportation Union, 336 F. Supp. 1149, No. No. 69 C 2401 (Dist. Court, ND Illinois 1971).
[29] Association of Flight Attendants v. Horizon Air, 976.
[30] AIR LINE PILOTS ASSOCIATION INTERNATIONAL v. Spirit Airlines, Inc.
[31] TRANS INTERN. AIRLINES v. INTERN. BROTH., ETC, 650 F. 2d 949, No. No. 77-3362 (Court of Appeals, 9th Circuit 1980).
[32] Independent Federation of Flight Attendants v. TWA, 682.
[33] Independent Federation of Flight Attendants v. TWA, 682.
[34] Association of Flight Attendants v. Horizon Air, 976.
[35] US Airlines Pilots Ass'n v. US Airways, Inc, 859.
[36] Independent Federation of Flight Attendants v. TWA, 682.
[37] Independent Federation of Flight Attendants v. TWA, 682.
[38] AIR LINE PILOTS ASSOCIATION INTERNATIONAL v. Spirit Airlines, Inc.
[39] TRANS INTERN. AIRLINES v. INTERN. BROTH., ETC, 650.
[40] AIR LINE PILOTS ASSOCIATION INTERNATIONAL v. Spirit Airlines, Inc.
[41] REA Express, Inc. v. BROTHERHOOD OF RAILWAY, ETC, 358 F. Supp. 760, No. No. 72 Civ. 4492 (Dist. Court, SD New York 1973).
[42] REA Express, Inc. v. BROTHERHOOD OF RAILWAY, ETC, 358.
[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.

jetset

Can we get the Cliff's Notes on this one?? Is it reasonable or not?

Lewbronski

It is totally reasonable to seek better than a narrow body contract.

The last paragraph sums it up and the black, bold italicized “In a nutshell” quotes from RLA court cases distill each section into the important points being made. IOW, if you just read those quotes and the last paragraph, you should walk away with the big ideas.

Read the rest of the info if you want a deeper understanding. I provided a lot of detail (and believe me, there’s way more that I didn’t include) because this idea that we can only demand what is industry standard for a narrow body contract is so deeply entrenched. I have a feeling that many of our guys will need an overwhelming amount of evidence to begin to be swayed.

jetset

Well I trust that the NC has already done this then since they have presented rates at least twice by now...

Lewbronski

Perhaps. You could email them and/or your BOD reps and ask them if they’ve already done this.

Mozam

I believe it has been stated on SWAPA fourm, that the reps have seen the pay rates .

REF 5

Haven't heard that at all from SWAPA's NC. As a matter of fact they have told the company many times that they are in no position to ask anything. Look at disability. The company has agreed to pick up disability but want's to change sick pay provisions. The NC has told them to pound sand. That was in front of the mediator. Need less to say those two sections are still open and probably will be until the company puts the pay package on the table.

Southwest Airlines Pilots can demand anything they want. Mediator does not care. SWAPA can ask to be paid in rocks and if SWA mangement agrees the mediator has done his/her job. The question is NOT the RLA but the pilot group in general. You have to convince the pilot group. Plain and simple. If you think we should be paid 150% more than any wide body captain in the world go for it. I personally think you are selling the pilot group short. I would tie our compensation to Bob's. If he gets grants, we get grants. If he gets a bonus we get the same. I would argue though their has never been any contractual leading industry gains without mediation. Every time the bar has been raised it has been through mediation. Why? Because the ultimate slap down is to walk. The only way you get walk is go through the process. Not a single carrier, especially the big three have had big gain's without a threat of a walk out. I don't like the RLA but its the system we have. Almost all those gains the pilot group was convinced to walk for it. And was ready for it. Just ask Spirit a few years ago. The were just trying to get what they deserved. Their management team actually ignored the mediators requests to agree and the NMB let them go. Not too many cases that I heard of where the NMB sided with labor. In the end they got what they wanted because they walked.

RLA is a frame work to get a deal. It can be asset that can help us get a contract we deserve, it's mechanism's to get their are not. Leverage has been historically on the side of mangement because of the RLA. Real leverage is to walk. When the company and the union agree to a deal they will have to make the case in front 10,000 pilot's. I appreciate you taking the time to put up this info for all to see. Sometimes getting very detailed about something as dry as RLA can be as daunting as reading the FOM but I do appreciate it. In the end channel those wants to every guy you fly with. A whole paradigm shift on how we should get paid is different. Usually that starts the day after a contract is ratified because it takes a long time to convince other guys. Especially pilots.

Lewbronski

Thanks for reading.

I don’t know what the NC’s overall posture is on the necessity to give something up in order to get something or to move toward the position of the company. I hope the NC fully understands that we don’t need to buy into the squozen balloon idea. Though they told the company to “pound sand” on the disability issue gives that you pointed out, it could be that there are other contractual areas where they feel the need to give since they aren’t giving on sick time tied to disability. I hope not, but I’m not sure.

But like you said, this information is more about informing the pilot group on what the RLA and RLA case law really have to say about the issues of reasonability and good faith bargaining. There is absolutely wild misunderstanding out there in our pilot group swirling around these issues. That wild misunderstanding and seeming unwillingness to realize that we don’t need to limit ourselves to a narrow body-style contract are the main thing, IMO, that holds us back from achieving much better than we currently have.

Yep. Agree in principle with most of what you’re saying.

The one thing I’d push back on a little is the idea that the RLA is slanted against labor. I’d say it’s more like the RLA appears to be slanted against labor because, if the RLA can be said to favor one side or the other, IMO, it favors the side that understands it better.

In almost all cases I’m aware of, I’d say the side that understands the RLA better has been management. Therefore, they have typically been better able to leverage the RLA to work for them. Since they achieve more “RLA” wins as a result of their better understanding of the RLA, the RLA appears to favor management.

I anticipate many pilots will look at what I wrote in the original post(s) and their eyes will glaze over because it’s pretty long and, hey, there’s a football game on TV or they’ve got to wash their car or whatever.

I’ve been trying to explain to a SWA friend of mine why we don’t need to limit ourselves to narrow body demands. I asked them if they were going to read what I wrote about it. They said no and explained it doesn’t matter what I wrote because none of our pilots would support going for wide body-style rates and contractual features. Kinda sad. It says a lot about where we are and why we are where we are.

Lewbronski

Just to clarify, it’s not just about rates. The current Delta contract is just shy of 500 pages long. Our contract is 233 pages long. There’s a lot else besides rates that goes into a truly mature, industry-leading airline pilot contract.

I don’t know what rates the NC is asking for. I’ve heard they’re not global airline industry leading pilot rates. But I don’t really know and we probably won’t know for sure until there’s an AIP. And, at that point, if the AIP isn’t that great, and SWAPA has indicated in any way, “Best we can do,” it’s too late.