jaxsurf

No, and the fact that it has a name attached to it makes all the difference. But the previous “most powerful thing ever written” and your own personal “word on the street” are worthless garbage that add nothing of value other than to further someone’s personal agenda.

Spreading worthless fake news doesn’t help anything. Discussing actual information from open, respectable, involved sources does.

norcalflyer

The initial post was from a credible yet anonymous source at the time because it had to be. Fair to call BS, that’s fine. But as a result of that initial post, a much more detailed account from a non-anonymous source came to surface within 12 hours. Call it what you want, but in the end we now have more information, which is now fully corroborated and accounted for, to make an informed decision.

Lewbronski

This guy, whoever who or she is, is clearly either a FordHarrison ghoul or is one of your own working directly for management or at management's behest.

I don't doubt that the NMB told your NC that "they'd park [you] if [you guys] rejected this deal]. That doesn't surprise me at all. That's standard NMB mediation tactic number one. I also don't doubt that the mediator told your NC that "they'd not release" your dispute "because they consider the Company exceeded the NMB's expectations."

The first thing that needs to be understood is that the NMB is the executive agency established by Congress to carry out the prime directive of the RLA: "to avoid any interruption to commerce." That is their job. Their job is not to ensure that labor gets a fair deal. Nor is to ensure that management gets a good deal. The NMB is concerned primarily with one thing in the context of negotiations: avoiding an interruption of commerce.

The RLA gives the mediator the freedom to "experiment with any mediation device that can fairly be said to be designed to settle a dispute without a strike and does not independently offend other laws." (American Train Dispatchers v. Fort Smith Railroad Co.,121 F.3d 267 (1997)) IOW, the NMB can lie, cheat, steal, flatter, threaten, promise, scream, or yell in order to exert pressure upon one or both parties to settle the dispute. They can do anything short of hold a gun to the NC chairperson's head or kidnap the union president's children and hold them for ransom.

In a 1991 RLA case out of the Court of Appeals for the DC Circuit (International Ass'n of Mach. & A. Wkrs. v. National Med. Bd, 930 F.2d 45 (1991)), the judge explained regarding comments made the chairman of the NMB:
One of a NMB mediator's go-to tools in their toolbox of labor group intimidation is to threaten to "park" or "ice" the dispute. RLA court cases at every level in the federal court system over the last nearly 100 years emphasize how valuable this instrument is to the ability of the mediator to scare labor into settling:

• "Often a mediator will let an unusually stubborn party sit with the status quo in place … This is a basic tactic in mediation..." (Local 808 v. National Med. Bd., 888 F.2d 1428 (1989))
• "([T]he real `key' is the Board's authority to hold the parties to a dispute in mediation so they cannot engage in self-help; it is `a coercive tool essential to bringing the parties to conciliation.')" (In re Northwest Airlines Corp., 349 BR 338 (2006))
• "The NMB's inaction, however, may serve as a mediation technique because 'withholding of the proffer is a `crucial' tool for encouraging compromise and settlement.' For example, "[a]n NMB member may legitimately indicate an unwillingness to move a dispute out of mediation in order to pressure the parties to settle.' In other words, 'the actions of the NMB are easily explained as common mechanisms for bringing recalcitrant parties to the table.'" (International Ass'n of Mach. & A. Wkrs. v. National Med. Bd, 374 F.Supp.2d 135 (2005))
• "The Board's withholding of the proffer is a "crucial" tool for encouraging compromise and settlement." (Local 808 v. National Med. Bd., 888 F.2d 1428 (1989))

There are many more examples of federal court judges opining on the use by the mediator of threatening to hold a dispute in mediation as "a tactic to spur negotiation," but I think the above examples give you the idea. So, clearly, this is something NMB mediators do. They also clearly do have the power to hold a dispute in mediation for what may seem like an "interminable" length of time. In RLA cases, the courts have affirmed time and again that even though the RLA process of negotiation, mediation, cooling-off, and possibly, a Presidential Emergency Board (PEB) can seem endless, especially to those who don't understand the bigger picture, they are not, in fact, endless.

The National Mediation Board (NMB) cannot permanently keep the parties involved in a labor dispute in mediation. The mediator cannot put a dispute “on ice" or "park it" forever. This is rooted in the fact that labor has a right to strike under the RLA. Though many pilots claim that labor does not have the right to strike, the Supreme Court of the United States has stated the opposite. In a 1969 Supreme Court case involving an RLA dispute, Trainmen v. Jacksonville Terminal Company, the Supreme Court’s Justice Harlan, delivering the Court’s opinion, explained:

If the RLA granted to the mediator the power to forever bind a dispute in mediation, that means the mediator would thereby also own the ability to strip labor of what the Supreme Court described as its “the cherished right to strike.” Since the Court characterized “the right to strike” as “integral” to the RLA, if the law imbued the mediator with license to permanently hold the parties in mediation, then the RLA would also transitively hand the mediator ability to disrupt the entire integrity of the RLA. Does that make any sense at all?

No, it does not. Congress never accorded the mediator the ability to unravel the complex fabric of the RLA. That is what would happen if the mediator could put a dispute "on ice" or "park it" forever.

Though we’ve established that the mediator can’t put us on ice forever, we also know that mediator can hold us in mediation for quite some time. How long can a mediator hold a dispute in mediation?

That is another question, but I think I've gone on long enough here. But the short answer is that the mediator can, without problem, hold a dispute in mediation for a period anywhere from 4.5 months as they did with the recent railworkers' dispute to several years as has occurred repeatedly in the past. I can go into the details of the court decisions around that, but I'll save that for another time and I've already posted that information more than once on APC.

tunes

Some? Absolutely. Most opposed to the AIP didn’t need a complete overhaul, just tweaks, myself included.


Sent from my iPhone using Tapatalk

Deedledee

Simply said, and very accurate

MJP27

Ok next question. You're willing to risk sending this back for a few tweaks, that may cost us more dollars in the long run if it doesn't happen how you think it will? Seems counter intuitive and a big risk for small changes.

What are those "tweaks" that will make you support an AIP? I'm genuinely curious

GeneralLee

Absolutely! 75/25 pass rate.. the silent, logical thinkers will vote this great AIP through.

Lewbronski

Every pilot labor union should hope, if they experience the good fortune of an impasse being declared in their dispute and get released into a 30-day cooling-off period after declining arbitration, that the President establishes a Presidential Emergency Board (PEB) in their dispute.

Why?

Because the advantage that airline pilot unions have over the case of the recent freight railroad union dispute is that they negotiate their contracts in single company blocks. That's very different than the freight railroad dispute which saw 110,000 workers in 12 unions all negotiating in one massive coalition that, if they struck, posed an economic risk to the nation orders of magnitude greater than one single airline going down. The former is potentially crippling to the economy while the latter is merely a headache and inconvenience to the customers of that particular airline.

The fact that airline pilots negotiate only for the pilots of their specific company activates what the current Director of Mediation Services at the NMB, John Lvingood, calls the "book-away phenomena" when a strike is in the offing. On his very informative web site all about the RLA, Livingood explains:

Think about it: what would you do if you had a wedding, graduation, business meeting, scheduled vacation, etc and you heard that the pilots of Delta were potentially going on strike in 30 days or, in the case of a PEB, 60 days? Would you book your tickets on Delta? Or would you book away from Delta onto a competing carrier in order to ensure that your travel plans weren't disrupted if the Delta pilots did actually strike?

In the case of the freight railroads, if they strike, there is no "book away phenomena." There are no viable competitors for customers to book away to that have the capability and/or capacity to satisfy freight rail customers' needs. Trucking, by all accounts, is maxed out. Air freight operators cannot handle the kinds of cargo that freight rail can. Because their customers don't really have a true alternative provider, unlike airlines, freight railroad companies do not really begin experiencing a substantial loss of revenue until they are right on the cusp of a strike as rail companies and customers are forced to begin securing the fleet and cancelling orders that would directly fall victim to a rail strike.

Airline unions begin experiencing the leverage offered by the "book away phenomena" as soon as a release occurs, well before pilots actually walk off the job in any form. The "book away phenomena" continues for at least the period of the 30-day cooling-off period and, hopefully, is extended by the President ordering a PEB. If the President establishes a PEB, it extends the duration of the "book away phenomena" by an additional 60 days and magnifies the leverage it offers to labor and the pain it inflicts on management.

And no, the President cannot "shut down" a strike under the RLA. The President can only delay a strike under the RLA by 60 days. That is it. That is all he or she gets.

The President cannot unilaterally extend a PEB by even one day. Nor can the President establish a second, successive PEB.

As Deputy Asst Attorney General John McGinnis reported to President Bush in a 1990 report entitled Presidential Authority to Extend Deadline for Submission of an Emergency Board Report Under the Railway Labor Act, “The President may require an Emergency Board under the Railway Labor Act to submit its report before the statutory deadline, but he may not extend that thirty day deadline unless the parties involved have entered into a side agreement extending the status quo period during which they refrain from self-help.” Read the full DOJ legal opinion for yourself at the highlighted link.

This point is absolutely critical to understand. The President CANNOT extend a PEB nor create a second follow-on PEB to further delay the onset of self help. Many pilots have claimed that the President does, in fact, have that power. They are wrong.

In my experience, these people have typically made these claims in conjunction with the assertion that attempting to leverage the RLA is therefore pointless because the President can prevent us from threatening to strike by simply indefinitely extending a PEB or creating endless follow-on PEB’s.

Lewbronski

I posted this on another thread, but it also seems like it's applicable to the current discussion:

Of course, neither side has the authority to unilaterally impose any terms on the other side. And you're right, only the NMB, not a union nor management, has the authority to terminate the NMB's mediation services and proffer arbitration — setting the stage for possible self help in 30 or 90 days (depending on whether or not a PEB is established).

What I think you may be getting at is the question of whether or not DALPA's demands for the full value of retro since the amendable date fall outside of the bounds of "good faith bargaining" — or as the RLA describes it, "exert[ing] every reasonable effort to make and maintain agreements."

On this sort of question, the courts have weighed in more than once to help us understand what good faith bargaining is and isn't. To begin with, the courts all seem to go out of their way to specify that good faith bargaining is really the absence of bad faith bargaining.

In 2012, a federal district court, dismissing a US Airline Pilots Association (USAPA) complaint against US Airways listed examples of what bad faith bargaining on the part of the employer might look like:

That same court went on to further expand upon what bad faith bargaining does and does not look like:

Nor could the facts alleged by plaintiff otherwise permit a conclusion that defendants are engaged in the mere pretense of negotiation. Extreme bargaining positions, such as a proposal by a carrier that would allow it to change unilaterally any work rule at any time for any reason or that would require the union to recruit replacement workers during a strike, have been found to constitute evidence of such surface bargaining. 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.
In a 1988 federal district court case involving the flight attendants at TWA claiming, among other things, bad faith bargaining on the part of TWA, the judge referenced a 1970 Supreme Court decision to make the point that, "…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." The judge then went on to cite the example of a 1980 case involving Trans International Airlines vs the Teamsters. The judge explained:

The only real powers the mediator has during mediation is the power to control the schedule of mediated negotiating sessions. The mediator cannot force either party to accept any contractual item. But the mediator can attempt to lie to and manipulate one or both sides in a dispute. They may try to intimidate one side or the other by suggesting they have more power than they really do by threatening, for example, "To put the dispute on ice 'forever.'" As a 1991 RLA case pointed out about a statement that the chairman of the NMB had made to a representative of the International Association of Machinists and Aerospace Workers (IAM) claiming that their dispute was at an impasse (and therefore, the IAM sued the NMB believing they should be released):

A 1991 RLA case stated, "The NMB is free to "experiment with any mediation device that can fairly be said to be designed to settle a dispute without a strike and does not independently offend other laws." IOW, the mediator can do or say just about anything that doesn't involve literally holding a gun to the NC chairperson's head in order to try to create pressure to move toward an agreement. Remember, the NMB evaluates itself in its annual reports to Congress entirely on how many disputes were settled, not on how fair those disputes that were settled were to labor or to management. The mediator just wants to get his or her job done as expediently as possible. If lying or pretending to side with management is the most expedient way to do that, then they will do that. Avoiding an interruption to commerce is their charter. Ensuring a labor union gets the best deal possible is not. That job belongs to the labor union.

So, sure, the mediator may, in order to exert pressure on the Delta pilots ("as a tactic to spur negotiations"), pretend to "side with the company" if he or she believes that DALPA's demand for retro is a point that the company would never agree to. But the mediator cannot force DALPA nor the company to agree to anything. The courts have pretty clearly established in multiple rulings over the decades that the bar to being found to be bargaining in bad faith is pretty high. The courts have also established that they are loathe to interfere in the substantive terms of collective bargaining agreements. If Delta simply cannot agree to DALPA's demands, and assuming DALPA's demands are within the very wide bounds of "good faith bargaining," then perhaps, after the mediator cycles through his or her various attempts at arm-twisting and manipulation in order to cajole the sides into an agreement, the NMB will recognize that it's time for an impasse to be declared.

Unfortunately for Delta, right now "economic strength" favors pilots. "Economic strength," as the court has made clear, "ultimately [controls] the establishment of contract terms, regardless of which side may have better reasons for its position."

Scoop

This vote will be closer than you think. 25% will vote No to anything. 25% will vote yes to anything. There seems to be some weird dynamic of “Steet Creed” associated with a No vote. So much so that I wouldn’t be surprised if some folks vote No thinking it will pass anyhow - this is not wise because this vote will be closer than you think.

As far as votes go the “Yes” voters on TA-2 have been denigrated for years for supporting that “POS” deal. TA-2 sucked so bad many now want to work under it longer is search of a better deal? You would think with all the QOL gains it would be a tsunami of yes votes. Maybe TA-2 ain’t so bad after all.

To those who say a few tweaks and we are back in business - I say maybe, but what tweaks? Do we open up new polling or do we send the same negotiators out again with the same data that they had? Do we replace the NC? Will the NC members resign with a rejection? Do we spool up the recall machine and recall the “ Yes” reps?

I would be all for an improved deal - it worked on TA-1 and could work again, but the risk reward seems out of whack. We would delay definite huge gains for possible “tweaks.” A large majority of the No voters are upset about the lack of retirement - I totally get it, but the time to deal with that was LOA 51, the Joint Contract, C2012, and to some extant C2015. There is not much we can do now for guys who leave in the next year or two except for a minimum balance - does anyone see that happening with our demographics?

Scoop