Lewbronski

In my view of how the RLA works, whether or not a dispute is at a true impasse is the most important test of whether or not it will be released from mediation. There's a secondary component of "time in mediation" that influences whether or not a dispute will be released. But time in mediation, is not, in itself, enough to achieve a release. If progress toward or the prospect for progress toward an agreement still exists, it is unlikely that a dispute will be released from mediation. The company (guided by FordHarrison) has been smart enough so far to leech out enough "progress" into our dispute to stave off an impasse. If SWAPA desires a release, it could be argued that their repeated attempts to "help" pilots by "helping" the company and any moves they may still be making toward the company's position (not required by the RLA) help to form the impression in the eyes of the mediator that an impasse in the current SWA dispute is not in sight.

So, with that caveat in mind, how long can a mediator hold a dispute in mediation?

The courts have established somewhat of a test for what could be called a "reasonable" amount of time to be held in mediation:
In 2005, the International Association of Machinists and Aerospace Workers (IAM) brought a motion against the NMB in federal district court to try to force the NMB to proffer arbitration because the union felt like they had been held in meditation for too long. The judge in the case issued an explanation similar to the case above:
Given how the courts have emphasized the amount of time a mediation case has spent in mediation versus other mediation cases, it is helpful to have a familiarity with how long disputes have historically spent in mediation. The average time spent in mediation of all 196 mediation cases closed by the NMB since January 1, 2018 through the ratification of the Delta Airlines pilots’ agreement on March 1, 2023 was 694 days. For fiscal years 2004 through 2008, the average length of time for a case in mediation was 758 days ("Report of the Dunlop 2 Committee to the National Mediation Board,").

When the pilots of Spirit Airlines struck for four days in 2010, they had been in mediation for 984 days before they were released into a 30-day cooling-off period though their dispute was embroiled in litigation for 288 of those 984 days. According to International Ass'n of Mach. & A. Wkrs. v. National Med. Bd, (425 F. 2d 527 (1970)), "Litigation time does not count as mediation time." With that in mind, the adjusted time spent in mediation by the pilots of Spirit was 696 days, almost exactly the average amount of time disputes spent in mediation over the last several years.

In 1997, the NMB released the Allied Pilots Association, the union representing the pilots of American Airlines, from mediation after exactly 365 days. Of the five mainline passenger airline pilot mediation disputes (JetBlue, Alaska Airlines, Spirit Airlines, Frontier Airlines, and Delta Airlines) that closed out of mediation without a release between 2018 and March 2023, the average time spent in mediation was 674 days.

In the most well-publicized dispute handled by the NMB in recent memory as of the date of this writing, 10 of the 12 unions forming the national coalition of railroad worker unions representing a total of 115,000 employees, spent only 136 days—or four and a half months—in mediation before the NMB terminated its mediation services in June 2022, proffered arbitration, and released the parties into a cooling-off period. The remaining two unions filed for mediation earlier, in June 2021. They spent 361 days in mediation before the NMB released them in June 2022 together with the 10 other unions comprising the bloc.

Notably, the political composition of the NMB shifted in December 2021 to hand Democrats a two-to-one majority on the Board when the Senate confirmed Democrat Deirdre Hamilton as a member of the NMB. In June 2022, when the NMB voted to release the railroad unions, the NMB voted two-to-one to release the 12 unions from mediation. The one Republican member of the Board voted against the motion for release. The two Democrats voted in favor of it.

The 12 railroad unions released by the NMB constituted the workforce that moved one-third of US exports and approximately 40 percent of all long-distance freight in America. They supplied food, drinking water treatment materials, coal, food, gas, and innumerable other goods without which the US economy and day-to-day life in America would grind to a halt. That the NMB released a group of workers many times larger than even the largest US airline pilot group and with a far more consequential impact on US commerce than any one airline after such a short amount of time spent in mediation represents a potential sea change in the orientation of the NMB toward labor.

Taken together, the above information helps us to develop a sense of the NMB’s orientation toward disputes in mediation – particularly the range of times the NMB has held disputes in mediation. That is important because the courts have established that when evaluating whether or not the NMB has held a dispute in mediation for too long, a comparison to the period of time other disputes have spent in mediation is an important part of the assessment.

A 1970 US Court of Appeals decision established a two-pronged legal test with regards to mediation conducted under the purview of the NMB:
The second component of the legal test creates the standard — “a period that is completely and patently unreasonable” — for determining whether a court may intervene in a dispute and force the NMB to terminate mediation. But what does “a period that is completely and patently unreasonable” mean? The same 2005 IAM federal district court case referenced earlier helps us to tie together all of the information we have reviewed so far:
The determination of whether mediation has gone on for “a period that is completely and patently unreasonable” hinges to a large degree on how much time a case has spent in mediation relative to “the norm” or “customary” period disputes have spent in mediation. As the time spent in mediation approaches, and then exceeds, “the norm” or “customary” amount of time for a dispute to spend in mediation, it becomes more and more likely that, if reviewed by a federal court, the amount of time in mediation could begin to be viewed as “completely and patently unreasonable.”

It’s important to note, though, just as the judge in the 2005 IAM case explained, that simply because a case has exceeded the “norm” or “customary” amount of time in mediation does not constitute evidence, by itself, that the NMB has demonstrated “patent official bad faith. There are many mediation cases that have blundered on for periods well past the ”norm” or “customary” amount of time. Typically, these cases involve unions that deviated from or ignored the steps that have been proven to establish leverage in a RLA-regulated bargaining environment in the past.

In 2020, for example, the pilots of ABX Air finally settled their contract with parent company Air Transport Services Group (ATSG) after more than six years—2,341 days—in mediation. Their case, however, was clouded by an illegal job action requiring court intervention and a drawn-out representation dispute between ABX and Air Transport International (ATI).

Earlier, in 2016, the pilots of Southwest Airlines (SWA) ratified their contract after 2,068 days in mediation. According to accounts, the leadership of Southwest Airlines Pilots Association (SWAPA) demonstrated an unwillingness to harness the RLA as leverage and made little attempt to educate their pilot group on how the RLA could be used to their advantage. Reportedly, statements like, “The President will just shut us down,” or “The mediator will put us on ice forever,” were commonly heard and allowed to stand unchallenged. Instead, the pilots of SWAPA chose to utilize a novel and unproven bargaining strategy they called “The Platform,” which represented a set of demands that SWAPA seemed to hope to achieve primarily by seeking to publicly shame their corporate leaders via informational picketing events. The contract SWAPA eventually ratified fell more than one billion dollars short of the goals of “The Platform.”

Contrast the cases of the pilots of ABX and SWA with the actions of the railroad unions leading up to their release from mediation by the NMB on June 17, 2022. 247 days after entering mediation—February 23, 2022—the attorneys representing the Brotherhood of Maintenance of Way Employees Division of the International Brotherhood of Teamsters (BMWED) and the International Association of Sheet Metal, Air, Rail and Transportation Workers – Mechanical Division (SMART-MD), wrote a letter to the NMB asserting that bargaining had reached an impasse and requesting a release from mediation. , On June 10, 2022—129 days after filing for mediation—the leadership of the remaining ten unions in railroad labor’s negotiating coalition issued a statement demanding the NMB proffer arbitration in their dispute:
The NMB responded by proffering arbitration to the entire group of 12 railroad unions one week later, on June 17, 2022.

While the pilots at ABX flouted the RLA by initiating an illegal job action and becoming absorbed in a representation dispute, and the pilots of SWA ignored the RLA while attempting to invent their own unique approach to the generation of deal-making leverage, the leadership and workers of the railroad union coalition used the tools available to them under the RLA to generate a tremendous amount of leverage in dramatically less time than the pilots of ABX and SWA, who created very little leverage for themselves despite their very long stays in mediation.

The railroad unions achieved a release from mediation in 136 days and 361 days respectively. ABX used up 2,341 days–13.5 times longer than the average for the railroad unions–while SWA drifted for 2,061 days in mediation–nearly 12 times longer than the average for the railroad unions–without attaining the leverage that only a release from mediation can deliver to a labor union under the RLA. These cases accentuate the results that can be achieved by employing an effective RLA strategy or, alternatively, by straying from the RLA playbook.

Now that we have a better sense of the factors impacting the length of time that a labor union may spend in mediation under the RLA, we can begin to package together everything we have examined thus far. If a labor union in mediation believes that the NMB has “continue[d] mediation on a basis that is completely and patently arbitrary and for a period that is completely and patently unreasonable,” the court in International Association of Machinists and Aerospace Workers v. National Mediation Board asserted the ability of the judiciary to act as a check on the power of the NMB:

If we take the above three ideas that the courts have established:

1. That there is an absolute right to strike preserved in the RLA
2. That there is a "norm" for the, or a "customary," amount of time to be held in mediation established by other disputes in mediation
3. That if the NMB exhibits patently bad faith by holding parties in mediation “for a period that is completely and patently unreasonably" without any hope of agreement, the courts can intervene to order a release from mediation.

We can begin to see that the idea that the NMB has the power to "park us" or "put us on ice forever" or never release us from mediation does not match with judicial opinions issued by the highest courts in America.

Without a doubt, the NMB has the ability to hold parties in mediation for years, especially if a party to a dispute under the RLA does not follow proven RLA playbook strategies, like, for example, filing for mediation as soon as possible after opening negotiations - delaying the filing for mediation only the amount of time required to avoid appearing to try to "game the system."

That being said, the NMB is aware of what the courts have said about the length of mediation, though they would be loathe to let on that a dispute is anywhere near approaching the point of a termination of the NMB's services. Like the judge in Local 808 v. National Mediation Bd explained in response to the union when it alleged bad faith on the part of a NMB member ("Wallace") who told them their dispute would be "indefinitely" held in mediation:
A party to a dispute under NMB mediation is unlikely to be given any indication it can rely on that it is about to be released from mediation. A mediator may tell one or both sides that a release is imminent when the truth is nearly the opposite. A mediator may tell one or both sides that they will be "on ice" for the foreseeable future when the truth is they are nearing a release. What a mediator says cannot be trusted. They have one job: to get a dispute settled as quickly as possible. If lying about the status of mediation expedites the accomplishment of that job, then a mediator will do that.
"Any device" includes lying, screaming, cajoling, threatening, making pained faces, table-pounding, foot-stomping, crying, and threatening to "park" or "put a dispute on ice forever," or "for six months," or "for a really long time."

The NMB knows it cannot keep a dispute in mediation forever, especially when they're dealing with a union that knows what they're doing. But it can lie about its ability to do so all day long. And pilots fall for their lies year in and year out.

Airline management negotiating teams, especially with their very smart in-house and consultant attorneys and law firms like Ford Harrison are also aware of the above guardrails. They know that the NMB cannot keep a dispute in mediation forever.

The overwhelming majority of pilots, though, are a different story, though. Unaware of all or most of the information in this post, they succumb to “negotiating fatigue” and an inability to play the long game. That ignorance of the mediation landscape and the lack of will to understand the dynamics created by the law that governs how contracts are negotiated in their profession costs individual pilots and their families millions of dollars in lifetime career compensation. Moreover, it imposes an incalculable toll in more days away from home, poorer work rules, and lesser benefits that pilots and their loved ones are forced to tolerate because most pilots refuse to put in the work to understand the leverage they could wield if they merely understood the game that is created by the machinery of the RLA. Instead, they prefer the far easier task of believing myths and bullsh** fed to them by ill-informed “buddies,” unreliable media reporting, and individuals (like TSMITR) or organizations with dubious intent.