RLA misinfo? Setting the record straight.
07-18-2022, 08:43 PM
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RLA misinfo? Setting the record straight.
In SWAPA's latest RP, the July 2022 edition, it appears there is a misleading error or oversight in the way the RLA flowchart on page 11 is depicted.
Toward the bottom of the flowchart, there is an arrow pointing to the left of the page from the green box labeled, "Presidential Emergency Board (PEB) (Second 30-day cooling-off period)." The arrow points to a blue box that says, "Possible congress intervention. Negotiations concluded. (No membership vote.)" The flowchart lists a total of three 30-day cooling-off periods.
While technically true, I suppose, that Congress could intervene after the first 30 days of a PEB, that has never been attempted nor tested by Congress in the history of the RLA AFAIK. Theoretically, Congress could also attempt to intervene in a RLA labor dispute at any point during the RLA flowchart if they wanted to and it did not otherwise violate the Constitution. With that in mind, the same arrow leading to congressional intervention could have been placed anywhere along the flow chart. SWAPA could have even placed it coming from the very first box on the flowchart described as, "Contract becomes amendable. Either side gives Section 6 written notice."
It's helpful to understand that if Congress intervenes in a RLA dispute, they're acting entirely outside the auspices of the RLA. The RLA doesn't spell out anything about Congress intervening in a dispute. It's not part of the RLA. To intervene, Congress has to pass a special law unique to the dispute in question. Like any other law, it has to be passed by both houses of Congress and signed into law by the President.
But why would Congress intervene before the status quo stipulations of the RLA are lifted? There is no legal action under the RLA that can be taken by labor or management prior to the lifting of the status quo mandates of the RLA that would interrupt interstate commerce. If Congress is concerned about an interruption of commerce, the RLA has them covered until it has run its course at the end of a PEB. That's probably why Congress has never intervened until AFTER the full 60 days of a PEB.
What SWAPA may be missing in their flowchart is that the RLA statutorily stipulates that the status quo must be maintained all the way through both the mandatory 30-day cooling-off period that follows a release from mediation and a refusal of a proffer of arbitration, AND status quo must ALSO be maintained all the way through the entire 60-day period of the PEB (described on SWAPA's flowchart as the "second" and "third cooling-off periods," though the PEB isn't really described that way in the law or the literature concerning the RLA). That's a total of 90 days. SWAPA's flowchart seems to suggest that Congress would intervene at the 60-day point - at the conclusion of the first 30-day period of the PEB when the PEB is required to issue its report.
That is not how the RLA is set up.
For those of you unfamiliar with how a PEB works, it's pretty simple. If the President wants to establish a PEB (it's optional, not mandatory), he/she signs an executive order that creates the PEB for the dispute in question. The PEB is a three-person board that is given 30 days to meet and issue nonbinding recommendations to the President regarding what the board feels is the best way forward to settle the dispute. The parties to the dispute, labor and management, then have 30 days from the date that the board issues its report to consider its recommendations. At the end of those 30 days, the parties can accept the board's recommendations or not. If either side declines the board's recommendations, then both sides are released to self help. Here is how the RLA is worded with respect to the duration of the two phases of the PEB:
It's also nice to know something about the history of congressional intervention in RLA disputes. To begin with, the term of art for an intervention is "Post-PEB Congressional Intervention," which also indicates that, if it were to occur, it's understood that it would occur following the completion of the 60-day PEB, not at the midway point, 30 days into a PEB, as it seems like SWAPA's flowchart might be trying to say.
In the entire history of the RLA, there have been a total of 250 PEB's. The most recent one was just established by President Biden late last week and became effective today. It was formed to deal with a dispute involving a coalition of national railroad unions. The last airline PEB occurred in 2001 and involved mechanics for United Airlines.
Out of the 249 completed PEB's, Congress has only intervened 18 times. It has never intervened in the case of an airline. That doesn't mean it couldn't happen. But that's the history. The last intervention after a PEB by Congress occurred in 1994 when Congress extended the status quo period in a railroad dispute. Notably, that was before the era of congressional gridlock and political polarization of more recent years.
Finally, realize that it's extremely unlikely that a SWAPA dispute would end up ever going all the way to a possible post-PEB congressional intervention. All through the lead-up to a possible release from mediation and all the way through the 30- or 90-day cooling-off period (depending on whether or not a PEB is established), it is very likely, according to senior NMB mediator John Livingood, that passengers would book away from SWA "when [they] find out that their flights may be cancelled, or disrupted, because the NMB released the parties from mediation in accordance with RLA Section 5 (Section 155) and triggered the potential for a work stoppage. Airline passengers with today's technology and access to reservation systems have the potential, en masse, to immediately reschedule their flights to try to avoid possible disruptions to their travel plans, thereby causing a potentially substantial loss of revenue/business that precedes the PEB, its report, or the potential for any work stoppage."
IMO, it's doubtful that SWA would tolerate that level of harm to their business for 90 days or more. They would earnestly seek to settle with us earlier rather than later.
And, in the unlikely event a dispute goes all the way to a post-PEB congressional intervention, management carries as much risk going into it as we do. Depending on the political climate, Congress may or may not act at all. They may try to act and fail to pass the legislation required to intervene. If they act, their intervention may favor labor if a populist streak is running strong at the time we were to exit a PEB. Management may not want to gamble on Congress imposing a settlement or other terms that are unfavorable to them.
TLDR: SWAPA's RLA flowchart appears to be misleading on the issue of a possible, but extremely unlikely, Congressional intervention. The above attempts to clear up any confusion.
Toward the bottom of the flowchart, there is an arrow pointing to the left of the page from the green box labeled, "Presidential Emergency Board (PEB) (Second 30-day cooling-off period)." The arrow points to a blue box that says, "Possible congress intervention. Negotiations concluded. (No membership vote.)" The flowchart lists a total of three 30-day cooling-off periods.
While technically true, I suppose, that Congress could intervene after the first 30 days of a PEB, that has never been attempted nor tested by Congress in the history of the RLA AFAIK. Theoretically, Congress could also attempt to intervene in a RLA labor dispute at any point during the RLA flowchart if they wanted to and it did not otherwise violate the Constitution. With that in mind, the same arrow leading to congressional intervention could have been placed anywhere along the flow chart. SWAPA could have even placed it coming from the very first box on the flowchart described as, "Contract becomes amendable. Either side gives Section 6 written notice."
It's helpful to understand that if Congress intervenes in a RLA dispute, they're acting entirely outside the auspices of the RLA. The RLA doesn't spell out anything about Congress intervening in a dispute. It's not part of the RLA. To intervene, Congress has to pass a special law unique to the dispute in question. Like any other law, it has to be passed by both houses of Congress and signed into law by the President.
But why would Congress intervene before the status quo stipulations of the RLA are lifted? There is no legal action under the RLA that can be taken by labor or management prior to the lifting of the status quo mandates of the RLA that would interrupt interstate commerce. If Congress is concerned about an interruption of commerce, the RLA has them covered until it has run its course at the end of a PEB. That's probably why Congress has never intervened until AFTER the full 60 days of a PEB.
What SWAPA may be missing in their flowchart is that the RLA statutorily stipulates that the status quo must be maintained all the way through both the mandatory 30-day cooling-off period that follows a release from mediation and a refusal of a proffer of arbitration, AND status quo must ALSO be maintained all the way through the entire 60-day period of the PEB (described on SWAPA's flowchart as the "second" and "third cooling-off periods," though the PEB isn't really described that way in the law or the literature concerning the RLA). That's a total of 90 days. SWAPA's flowchart seems to suggest that Congress would intervene at the 60-day point - at the conclusion of the first 30-day period of the PEB when the PEB is required to issue its report.
That is not how the RLA is set up.
For those of you unfamiliar with how a PEB works, it's pretty simple. If the President wants to establish a PEB (it's optional, not mandatory), he/she signs an executive order that creates the PEB for the dispute in question. The PEB is a three-person board that is given 30 days to meet and issue nonbinding recommendations to the President regarding what the board feels is the best way forward to settle the dispute. The parties to the dispute, labor and management, then have 30 days from the date that the board issues its report to consider its recommendations. At the end of those 30 days, the parties can accept the board's recommendations or not. If either side declines the board's recommendations, then both sides are released to self help. Here is how the RLA is worded with respect to the duration of the two phases of the PEB:
Such board shall be created separately in each instance and it shall investigate promptly the facts as to the dispute and make a report thereon to the President within thirty days from the date of its creation . . . After the creation of such board and for thirty days after such board has made its report to the President, no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose.
In the entire history of the RLA, there have been a total of 250 PEB's. The most recent one was just established by President Biden late last week and became effective today. It was formed to deal with a dispute involving a coalition of national railroad unions. The last airline PEB occurred in 2001 and involved mechanics for United Airlines.
Out of the 249 completed PEB's, Congress has only intervened 18 times. It has never intervened in the case of an airline. That doesn't mean it couldn't happen. But that's the history. The last intervention after a PEB by Congress occurred in 1994 when Congress extended the status quo period in a railroad dispute. Notably, that was before the era of congressional gridlock and political polarization of more recent years.
Finally, realize that it's extremely unlikely that a SWAPA dispute would end up ever going all the way to a possible post-PEB congressional intervention. All through the lead-up to a possible release from mediation and all the way through the 30- or 90-day cooling-off period (depending on whether or not a PEB is established), it is very likely, according to senior NMB mediator John Livingood, that passengers would book away from SWA "when [they] find out that their flights may be cancelled, or disrupted, because the NMB released the parties from mediation in accordance with RLA Section 5 (Section 155) and triggered the potential for a work stoppage. Airline passengers with today's technology and access to reservation systems have the potential, en masse, to immediately reschedule their flights to try to avoid possible disruptions to their travel plans, thereby causing a potentially substantial loss of revenue/business that precedes the PEB, its report, or the potential for any work stoppage."
IMO, it's doubtful that SWA would tolerate that level of harm to their business for 90 days or more. They would earnestly seek to settle with us earlier rather than later.
And, in the unlikely event a dispute goes all the way to a post-PEB congressional intervention, management carries as much risk going into it as we do. Depending on the political climate, Congress may or may not act at all. They may try to act and fail to pass the legislation required to intervene. If they act, their intervention may favor labor if a populist streak is running strong at the time we were to exit a PEB. Management may not want to gamble on Congress imposing a settlement or other terms that are unfavorable to them.
TLDR: SWAPA's RLA flowchart appears to be misleading on the issue of a possible, but extremely unlikely, Congressional intervention. The above attempts to clear up any confusion.
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