With informational protests (not strikes) by off-duty airline crew on the rise in recent years, now seems timely to review the legal framework around US airline labor negotiations. Granted none of this is legal advice and the author is not a lawyer, but with a disclaimer given, here’s a guide to how airline management and labor negotiate contracts.
What US law governs airline labor relations?
The Railway Labor Act governs airline labor relations in the United States. An act originally created in the 1920s after decades of labor strife in America’s railways; the act was amended to cover airlines also in 1936. The logic behind the act is to prevent strikes or workers stopping contractually agreed work that can disrupt communities and interstate commerce. The US Constitution in Article I, Section 8, Clause 3 gives the explicit power for the US federal government to intervene in labor disputes that cross state lines as is clearly the case with the nation’s railways and airlines.
The Railway Labor Act requires federal mediation before getting to a strike situation. The Alaska Airlines ‘chapter of the Air Line Pilots Association (ALPA) has prepared an infographic for its members of what the process is and where the union is in bargaining with Alaska Airlines’ management as of April 2022.
The Railway Labor Act process according to the Alaska Airlines’ chapter of Air Line Pilots’ Association and where they are in the process as of April 2022. Infographic: Air Line Pilots’ Association
The two sides have attempted direct negotiations, those have revealed positions far apart sufficiently to have mediation from the National Mediation Board (NMB). If Mike Tosi the assigned mediator feels the sides cannot reconcile, then he can recommend his NMB bosses – declare an impasse. If an impasse is declared by the NMB, then arbitration can be encouraged. However, if one party – say the pilots ‘union – says no and Alaska Airlines’ pilots already have stated on several podcast episodes a desire to refuse arbitration, then the US President can appoint a Presidential Emergency Board (PEB) to investigate & make recommendations .
Now if, according to a Federal Railroad Administration overview,
… The NMB determines that the dispute threatens “substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service,” the NMB shall notify the President, who may create a PEB to investigate the dispute for a 30-day period and issue non-binding recommendations for resolving the dispute. The parties typically agree to PEB requests for extensions of time to further study a dispute.
After the PEB makes its recommendations or if a PEB is not convened, the status quo between the airline management and the union must remain for thirty days as a cooling-off period. The hope is that calmer heads will prevail, and a new contract will emerge. But if not, after the 30-day cooling-off period then the “self-help” can begin in earnest.
What is self-help?
“Self-help” is a term in the Railway Labor Act that covers various actions such as strikes by unions, lockouts by management, and unilateral imposition of work rules by management. Doing so before the self-help program can legally begin after negotiation and mediation options are exhausted normally means a court-ordered injunction is imposed to cease such activity.
Also, employees striking during a self-help period can be replaced but not terminated. Worth noting there is a substantial availability of pilots who could be enticed to cross picket lines even with a pilot shortage. It does though take a lot of time to train crew members.
Then there’s the fact that the Association of Flight Attendants does have a strike strategy of going from a surgical strike going after a flight or only a few flights all the way to a total strike. The idea is to cause as much disruption as possible. But as with the Piedmont Airlines chapter of AFA last fall unanimously authorizing a strike; by March 2, 2022, the union chapter was able to ratify a new contract without a strike according to an AFA statement.
Finally, in the event of “self-help” activity, the parties can keep negotiating – even during a strike – and work to find an agreement for ratification. Just like normal corporations and unions do. The National Railway Act’s intentions will have petered out at that point.
Also, what is informational picketing and how does that compute?
Informational picketing is not to be confused with striking activity. Informational picketing is when unionized employees on personal time off appear in uniform to inform the public about contract disputes between the union and the public. Versus a strike where employees refuse to perform their duties either due to lack of contract, violation of contract, or dissatisfaction with the contract. The public picketing is intended to pressure the management to be more receptive to the union’s point of view and seek public support for the union.
Recently, Simple Flying profiled Spirit Airlines’ employees informational picketing protesting when the airline left both employees and passengers stranded for days. Then there’s Alaska Airlines’ pilots and their high visibility informational picketing when off duty on April 1, 2022, alongside some flight attendant allies.
Informational picketing is not new to airline labor-management relations as per this Getty Images photo from September 27, 2011 in New York City. The pilots wanted to draw attention to the lack of progress on negotiations of the pilots’ joint collective bargaining agreement ahead of the one-year anniversary of the corporate merger close date of United and Continental airlines. Photo: Getty Images
But informational picketing is not new to the 2020s in the airline industry. It’s a tactic used in decades past such as in 2011 to protest difficulties with negotiations of the pilots’ joint collective bargaining agreement ahead of the one-year anniversary of the corporate merger close date of United and Continental airlines. Again, the idea is to create strong visuals for media and the general public like creating a humanized PowerPoint presentation to explain the union’s side.
The Railway Labor Act is intended to deescalate
The Railway Labor Act is intended to keep airline labor negotiations on glide path despite sometimes rocky weather. Photo: AvgeekJoe Productions
Ultimately, the Railway Labor Act is intended to deescalate situations with a long process and pressure to negotiate or accept arbitration so that airlines and railroads – and their customers – are not held hostage to striking except as a last resort. But when both sides are at an impasse, a strike can still happen.
Source: Federal Railroad Administration
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