Airline Pilot Central Forums - The RLA and Leverage

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Originally Posted by fcoolaiddrinker (Post 3588762)

I believe they meant to the mediator/nmb bod which I agree with to an extent. You want to show what your asking for is reasonable and management has no issues with the ability to pay. It seems you missed a step. Petition for release from mediation. That’s a big step and needs to put forth a good argument as to why you believe mediation is not working. If you don’t hear something back in a timely fashion your leverage is not going up and could be argued it went down a bit. It can be a bit of a gamble. IMO you won’t get to that point and will have an agreement in mediation. As others have pointed out management doesn’t really have a whole lot of options with the shortage.

1) As far as I know, formally asking the NMB for a proffer of arbitration is not a required step in the RLA process (like one party filing for mediation) nor in the SWAPA constitution (like a SAV). Unions do write letters to the NMB requesting that it proffer arbitration. Here's a copy of a letter the attorney for the BMWED and SMART-MD, two of the unions involved in the national coalition of railroad unions labor dispute last year, wrote asking the NMB to proffer arbitration in their case. The letter was written in February of last year. The NMB ended up proffering arbitration in June. Since it's not required either by the RLA nor by the SWAPA constitution, I don't know that it impacts leverage very much.

2) Yes, the RLA and the NLRA (which the courts have mostly accepted as pertaining to RLA cases in terms of the requirements of good faith bargaining) require that both sides "exert every reasonable effort to make and maintain agreements." However, "reasonable" does not mean that our contractual demands have to be constrained by what the company perceives as "industry standard" or really, by any other measure other than what our economic strength as a labor group can obtain. I wrote a very long post on this recently called "Unreasonable to seek better than narrow body?" Check it out. A few pertinent quotes from RLA cases:

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… 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.’

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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.

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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.

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

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

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Plaintiff's other allegations — including that defendants have not significantly altered their proposals from the [original] proposal — similarly fall short of stating a claim for bad faith bargaining. Plaintiff misconceives the scope of the duty "to exert every reasonable effort" to reach an agreement, which does not require one side to accede to the other's proposals:

[M]ovement toward the position of the other side is not a requirement of good faith bargaining.... Mere 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. An employer may insist on positions consistent with ... its asserted needs, even if the union may consider the proposals greedy.

"Courts must resist finding violations of the RLA based solely on evidence of hard bargaining, inability to reach agreement, or intransigent positions." Here, plaintiff essentially asks the court to find bad faith predicated on U.S. Airways' lack of flexibility and its unwillingness to become more generous as the bargaining process progresses. But a company's bargaining positions do not violate the statutory standards merely because they are "obstinate and unyielding,