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RLA Part 3: Section 6 Notice

RLA Part 3: Section 6 Notice

March 15, 2019

In the Part 2, we covered the role of arbitration in the RLA process. Remember that for us, arbitration is binding. Once we decide to enter arbitration for a minor dispute, we don’t get to choose whether or not we accept the resulting decision. Mediation for a major dispute is different. As you’ll see, once we decide to enter mediation, we can’t leave unless the mediator lets us, but we never have to accept a mediated decision. That’s a key difference all SWAPA Pilots have to recognize. 

The Section 6 Process

Section 6 of the RLA, 45 U.S.C. § 156, establishes the initial procedures for collective bargaining. When a party desires to amend or change an agreement, Section 6 requires that party to first give written notice to that effect. This “Section 6 notice,” as it’s called, triggers the duty to bargain. In bargaining, the parties are bound by Section 2 of the RLA to “exert every reasonable effort to make and maintain agreements” about “rates of pay, rules, and working conditions.” 45 U.S.C. § 152, first.

After receiving the Section 6 notice, the other party has 10 days to respond, to agree to meet, and the meeting must start within 30 days. This begins the direct bargaining between the parties. The duration of direct bargaining is open ended, and can last for as long as both parties find it productive.

Why is the Section 6 notice of significance? It imposes status quo on the parties. This means neither side can change current practice under the prior agreement until all of the bargaining procedures of the RLA have been exhausted. (We will go deeper into status quo in Part 4.) It doesn’t matter if the prior agreement reaches its expiration date. By law, it only becomes amendable, and the parties are locked in status quo until a new contract is in place or when Section 6 has been exhausted.

Federal Mediation with the NMB

Direct bargaining can go on for years. The NMB cannot insert itself. However, at any time in the direct bargaining process, either party can invoke the mediation services of the National Mediation Board (NMB). Typically, mediation is invoked as the parties approach the final or most difficult issues. Once invoked, the parties bargain in the presence of an NMB mediator. Mediated bargaining is indefinite, with the NMB in control of the pace and frequency of mediated sessions. It decides, in its sole discretion, when the parties will be released from mediation. And as we have experienced ourselves and seen in our industry, the NMB’s pace has only two gears — slow and slower. 

End of Mediation

When will the NMB release the parties? While one of the parties can request to be released from mediation, that release happens only when the NMB concludes that further bargaining is not likely to be productive. It’ll be up to the NMB and only the NMB. If the NMB comes to that conclusion, the release will be a two-step process. First, the NMB will issue a “proffer of arbitration,” which is an invitation for the parties to submit their contract dispute to an interest arbitrator. Because parties generally are unwilling to entrust their fate to an arbitrator, the proffer is almost always rejected. Once the proffer is rejected by either party, the NMB will send a notice terminating its official services. This brings us to the beginning of the end of the process.

The End of the RLA Process

The start of this endgame begins with the first 30-day cooling-off period.

During the cooling-off period, the obligation to preserve status quo continues. Only when status quo is lifted is each side free to exercise self-help. This means the Pilots will be free to strike, and management is free to implement whatever terms and conditions of employment have been reasonably encompassed in its original Section 6 notice and subjected to the bargaining process. In most every case, the NMB and parties make final attempts to resolve their dispute during this first cooling off process.

During this first 30-day cooling-off period, the NMB may recommend that the President create an emergency board. To avoid the potential disruption to interstate commerce, POTUS is likely to establish a Presidential Emergency Board (PEB) upon that NMB recommendation. While this has commonly happened in the railroad industry, it rarely occurs in the airline industry. The PEB is a panel of three neutrals (arbitrators) tasked to make an investigation and submit to the President, within 30 days of its creation, a fact-finding report with non-binding recommendations for procedures or terms on which a dispute might be settled. During this 30-day period, the parties enjoy the second 30-day cooling-off period. Upon submission of the PEB report, they have athird 30-day cooling-off period, during which time the PEB recommendations are expected to carry the weight of public opinion and induce a voluntary agreement among the parties. If the PEB is not accepted by the parties, then, ladies and gentlemen, that ends the RLA’s statutory scheme. The parties are then released to self-help.

Before they get there, though, Congress has the power to intervene. Congress may impose the PEB recommendations or create another study commission, and in the end, impose a new agreement on the parties by law.