Is it too late to change our demands?
03-13-2023, 05:23 PM
#1
Gets Weekends Off
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Joined APC: Feb 2018
Posts: 1,264
Is it too late to change our demands?
Given the rapidly changing state of the pilot hiring market, it could be argued that SWAPA's C2020 demands, crafted out of a process that began years ago, after the ratification of TA2 in 2016, do not reflect the reality of SWAPA pilots' current economic power.
In previous posts, I've already written in detail about how and why the RLA does not require us to confine our demands to any particular range or for our demands to be formulated on any particular basis or criteria—ie, there is nothing in the law that requires us to demand no more than NB rates or base our demands on metrics like CASM or RASM or ROIC or "industry standard" or "affordability" or anything else.
So, let's say, for argument's sake, that SWAPA decided that it would like to change what it's demanding for C2020. Let's pretend SWAPA decided it wanted to seek industry leading career compensation, period. It no longer felt the economic circumstances warranted restricting our demands to NB compensation models. Would it be a violation of the RLA's mandate "to exert every reasonable effort"—or good faith bargaining—to demand more at this point in the negotiations cycle?
Well, this issue has been hashed out before in previous RLA cases. The answer is, NO, it is NOT a violation of the RLA's reasonability clause to demand more during negotiations as conditions change.
Below, I am quoting directly from the Motion to Dismiss filed by the attorneys from Spirit Airlines in response to a 2008 complaint from ALPA-Spirit alleging bad faith on the part of Spirit. One of the bases for that complaint stemmed from Spirit changing their proposals (for the worse from ALPA's perspective) during negotiations and mediation. Spirit's attorneys were successful in winning their case for dismissal.
First, I'm going to quote part of the Table of Contents from Spirit's response. It is educational in and of itself. Spirit's attorneys go on to provide a wealth of evidence to support each of their points. Then, I will quote the entire section on "Bad Faith Cannot Be Established On Changed Proposals." If you don't want to read anything else, and just want the TLDR, read the red portions.
There are accusations going around that some people posting about the RLA have "demonstrated [a] lack of understanding" of the RLA. I have to question the motivation behind statements like that. Ask people saying things like that to provide the case law that backs up their assertion. Ask them to be specific.
And, please don't simply believe me or what any other pilot says about the RLA. Believe what the attorneys who specialize in the RLA have written below. Believe the case law. And do your own research. Please steel-man the points I'm bringing up.
The Table of Contents:
The section titled "Bad Faith Cannot Be Established Based On Changed Proposals":
In previous posts, I've already written in detail about how and why the RLA does not require us to confine our demands to any particular range or for our demands to be formulated on any particular basis or criteria—ie, there is nothing in the law that requires us to demand no more than NB rates or base our demands on metrics like CASM or RASM or ROIC or "industry standard" or "affordability" or anything else.
So, let's say, for argument's sake, that SWAPA decided that it would like to change what it's demanding for C2020. Let's pretend SWAPA decided it wanted to seek industry leading career compensation, period. It no longer felt the economic circumstances warranted restricting our demands to NB compensation models. Would it be a violation of the RLA's mandate "to exert every reasonable effort"—or good faith bargaining—to demand more at this point in the negotiations cycle?
Well, this issue has been hashed out before in previous RLA cases. The answer is, NO, it is NOT a violation of the RLA's reasonability clause to demand more during negotiations as conditions change.
Below, I am quoting directly from the Motion to Dismiss filed by the attorneys from Spirit Airlines in response to a 2008 complaint from ALPA-Spirit alleging bad faith on the part of Spirit. One of the bases for that complaint stemmed from Spirit changing their proposals (for the worse from ALPA's perspective) during negotiations and mediation. Spirit's attorneys were successful in winning their case for dismissal.
First, I'm going to quote part of the Table of Contents from Spirit's response. It is educational in and of itself. Spirit's attorneys go on to provide a wealth of evidence to support each of their points. Then, I will quote the entire section on "Bad Faith Cannot Be Established On Changed Proposals." If you don't want to read anything else, and just want the TLDR, read the red portions.
There are accusations going around that some people posting about the RLA have "demonstrated [a] lack of understanding" of the RLA. I have to question the motivation behind statements like that. Ask people saying things like that to provide the case law that backs up their assertion. Ask them to be specific.
And, please don't simply believe me or what any other pilot says about the RLA. Believe what the attorneys who specialize in the RLA have written below. Believe the case law. And do your own research. Please steel-man the points I'm bringing up.
The Table of Contents:
- B. Standard Of Liability For Bad Faith Bargaining Under [RLA] Section 2, First
- 1. Bad Faith May Only Be Established Based On A Failure To Comply With The RLA’s Bargaining Procedures, Or The Functional Equivalent
- 2. Bad Faith Cannot Be Established Based On The Proposal Of Increases Or Decreases In Compensation
- 3. Bad Faith Cannot Be Established Based On Changed Proposals
- C. ALPA Fails To State A Claim For Bad Faith Bargaining Under [RLA] Section 2, First
- 1. Spirit Has Complied With The RLA’s Bargaining Procedures
- 2. Spirit’s Proposals Are Not Bad Faith As A Matter Of Law
- 3. Spirit’s Request For Additional Cost Reductions, Following Significant Continued Deterioration Of The Local And National Economies, Does Not Show Bad Faith
- 4. The RLA Prohibits A Court From Passing Judgment On Contract Terms
3. Bad Faith Cannot Be Established Based On Changed Proposals.
Changed or regressive proposals, particularly in light of changed circumstances, also do not demonstrate bad faith. See, e.g., TWA, 682 F. Supp. at 1025 (“A retreat in [later negotiating sessions] from more favorable offers in [a previous session] . . . does not tend to show a picador tactic simply designed to enrage the union and bring confrontation rather than agreement.”). That is so whether the regressive change is from a prior proposal or from a point on which the parties previously had an understanding (or a “tentative agreement”). See Independent Union of Flight Attendants v. Pan American World Airways, Inc., 624 F. Supp. 64 (E.D.N.Y. 1985) (“Pan American”) (rejecting a union’s allegation that the company was bargaining in bad faith when it reopened matters in a signed a “Memorandum of Understanding” because: “If there is no agreement upon all the terms, there is no ‘Agreement.’”).
For example, in Varig Brazilian Airlines, 855 F. Supp. at 1350, after first requesting numerous changes, the company limited its proposals to five points before increasing its demands to eight, nine, and ultimately ten issues by the time of its “final Position Statement.” Id. at 1351-52. The court held, “[t]he rough-and-tumble of a year-long series of bargaining sessions cannot form the basis of a violation of the RLA’s imperative to bargain in good faith.” Id. at 1353. The court found, as a matter of law: “the parties failed to reach an agreement, not because of illegal actions by the Company, but because there was no meeting of the minds vis-a-vis key provisions of the collective bargaining agreement.” Id. at 1352.
Likewise, in TIA, the court found no bad faith bargaining where the union added demands over time. There, the union increased the number of its “bargaining proposals, from 61 in early 1976 to over 200 in March of 1977.” TIA, 650 F.2d at 958. The court noted that there were changed circumstances over the course of that year, and that “it hardly seems unreasonable for them to modify their previous proposal substantially to meet the new conditions.” Id.
Changed or regressive proposals, particularly in light of changed circumstances, also do not demonstrate bad faith. See, e.g., TWA, 682 F. Supp. at 1025 (“A retreat in [later negotiating sessions] from more favorable offers in [a previous session] . . . does not tend to show a picador tactic simply designed to enrage the union and bring confrontation rather than agreement.”). That is so whether the regressive change is from a prior proposal or from a point on which the parties previously had an understanding (or a “tentative agreement”). See Independent Union of Flight Attendants v. Pan American World Airways, Inc., 624 F. Supp. 64 (E.D.N.Y. 1985) (“Pan American”) (rejecting a union’s allegation that the company was bargaining in bad faith when it reopened matters in a signed a “Memorandum of Understanding” because: “If there is no agreement upon all the terms, there is no ‘Agreement.’”).
For example, in Varig Brazilian Airlines, 855 F. Supp. at 1350, after first requesting numerous changes, the company limited its proposals to five points before increasing its demands to eight, nine, and ultimately ten issues by the time of its “final Position Statement.” Id. at 1351-52. The court held, “[t]he rough-and-tumble of a year-long series of bargaining sessions cannot form the basis of a violation of the RLA’s imperative to bargain in good faith.” Id. at 1353. The court found, as a matter of law: “the parties failed to reach an agreement, not because of illegal actions by the Company, but because there was no meeting of the minds vis-a-vis key provisions of the collective bargaining agreement.” Id. at 1352.
Likewise, in TIA, the court found no bad faith bargaining where the union added demands over time. There, the union increased the number of its “bargaining proposals, from 61 in early 1976 to over 200 in March of 1977.” TIA, 650 F.2d at 958. The court noted that there were changed circumstances over the course of that year, and that “it hardly seems unreasonable for them to modify their previous proposal substantially to meet the new conditions.” Id.
03-15-2023, 04:58 PM
#3
Gets Weekends Off
Thread Starter
Joined APC: Feb 2018
Posts: 1,264
If I were SWAPA right now and, for example, the company wanted to reopen the compensation section if it was already AIP'd, I think I'd be happy to re-open that section in order to capture additional gains that our economic power today could net for our pilot group.
And who knows? The company may have approached the mediator about "re-doing AIP'd sections" in order to appear to be playing hardball but then stepping back from a hardball position to demonstrate a willingness to concede so that they're less likely to be found guilty of bad faith tactics as a result of their behavior in other aspects of the bargaining process. So, they may not have wanted to truly push the "re-doing AIP'd sections" idea because they knew that there was a risk that they could lose ground if AIP'd sections were actually reopened. IOW, they may have been playing "4D chess."
Regardless of which side demands changes, though, the mediator doesn't have the authority to prevent them from doing so if economic conditions have changed. The mediator's only real power is their control over the calendar. And their control over the calendar is not unlimited.
Nothing prevents the mediator from saying he's "not impressed." or from lying to either or both sides, or using threats or intimidation, or whatever other tactic they can dream up that "does not independently offend other laws" in order to generate pressure that makes the bargaining environment more conducive to an agreement.
So, just because the mediator said they were "not impressed," doesn't mean that they can stop us or that it would be a violation of the RLA's reasonability clause if SWAPA did want to change its demands right now to reflect the changed delta in economic power that has developed over the last few years between the company and SWAPA.
Was Jody Reven asked about how much power the mediator has to enforce a statement like that? Did anyone ask Jody how likely it is that the mediator was employing "blarney" or "hoomalimali" or "experiment[ing] with [a] mediation device" when he said that he was "not impressed"?
It'd be interesting to hear exactly what Jody said to understand the context and specifically what he was trying to communicate.
Accordingly, although it is possible to construe the Chairman's remark as meaning that he is giving up on mediation, we do not think it appropriate for a court to examine a Board member's statements, made in the course of mediation, so critically. Successful mediators often liberally use blarney (hoomalimali in Hawaiian) as one of their mediation tools. The Chairman's statement may well have been a ploy. By inquiring as to the true meaning of such a statement we could well undermine its entire purpose by forcing the Board to admit it was a tactic to spur negotiations.
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."
The Board may let a case sit as a mediation tactic, and it may tell parties that it will let a case sit. Congress chose this necessarily protracted means for resolving railroad labor disputes. As the Board explained, Wallace's remarks are simply the proper responses of a mediator who does not want to give one of the parties an indication that it no longer needs to negotiate in good faith. Parties who are told mediation may soon end have all the more reason, if they are dissatisfied with the mediation process to harden their position and not participate in good faith. It is the nature of disputes in mediation for one party to feel squeezed.
Often a mediator will let an unusually stubborn party sit with the status quo in place until the party is ready to negotiate seriously, knowing that the outcome in other mediations may influence the parties in a related dispute. This is a basic tactic in mediation ... An NMB member may legitimately indicate an unwillingness to move a dispute out of mediation in order to pressure the parties to settle. The Board may let a case sit as a mediation tactic, and it may tell parties that it will let a case sit. Congress chose this necessarily protracted means for resolving railroad labor disputes. That one side feels disadvantaged by maintenance of the status quo is absolutely irrelevant under the law.
Finally, we must consider the Court of Appeals' position that the question whether a party had exerted every reasonable effort was committed by the Railway Labor Act to the National Mediation Board rather than to the courts. We believe that the legislative history of the Railway Labor Act rather plainly disproves this contention ... In light of these considerations, we think the conclusion inescapable that Congress intended the enforcement of [the reasonability clause of the RLA] to be overseen by appropriate judicial means rather than by the Mediation Board's retaining jurisdiction over the dispute ...
Last edited by Lewbronski; 03-15-2023 at 05:13 PM.
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