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RLA Part 4: Status Quo, Cooling-Off Periods, and Self Help

RLA Part 4: Status Quo, Cooling-Off Periods, and Self Help

June 15, 2019

In Part 3, we went over the elaborate mechanisms of the Railway Labor Act (RLA) that are designed to keep the parties at the bargaining table and hopefully arrive at an agreement on their own. We have also covered the period of direct bargaining, federal mediation, and proffer of arbitration in Parts 1 and 2. Let’s talk a little more about “cooling-off” periods and self-help.

Contract 2012 negotiations lasted more than four years. AMFA mechanics reached a deal with Southwest after more than six years. The design of the RLA makes formal negotiations slow and plodding, which is why neither SWAPA’s negotiations or AMFA’s negotiations progressed beyond National Mediation Board (NMB) mediation even after all those years. 

However, once you approach the end of the RLA process, things will both speed up and heat up.

Cooling-Off Periods

The RLA provides for three 30-day cooling off periods, two of which are decided by the President of the United States (POTUS), that the parties must exhaust if they come into effect before each can resort to self-help.

  • After the NMB proffer of arbitration is rejected.
  • After a PEB (Presidential Emergency Board) is established.
  • After the PEB report is submitted.

I don’t think calling these intervals “cooling-off periods” fully encapsulates what is happening during these times. Sure, the parties are forbidden to exercise self-help during that time, but that does not mean the parties are simply kicking back and relaxing until the 30 days run out. Both parties are under tremendous pressure and working feverishly to accomplish two things: 1) finding ways to come to agreement, and 2) preparing for release to self-help. An agreement could still happen, and that possibility alone can be a strong motivator. Also along the way, POTUS may decide not to establish a PEB. Or, if a PEB is established and the report rejected, Congress may decide not to step in. 

Is that all? No. All of this is not happening in a vacuum, so we must throw into the mix the massive wave of outside pressure — from the media, investors, politicians, the market, the economy, other airlines, other labor groups, and, most importantly, the flying public. With today’s social media outlets, the passengers will have a say, and, as with all contested issues, not everyone will agree. These cooling periods will be frantic and will be a time of pressure building for all involved.

The bottom line is that every situation is different, and the statute keeps enough pieces optional, which means there’s a lot of uncertainty. Not that that’s a bad thing! 

Self-Help

So what happens when the parties are released to self-help? Leading into the release to self-help, just as Pilots will have been preparing for the day we can exercise self-help, management will have been gearing up as well. You will recall from previous RLA education pieces that while Pilots will be free to strike and perform other work interruptions feared by management such as slow downs and sick outs, management will be free to hire replacement workers (scabs), execute a lockout, or unilaterally impose changes to work rules and rates of pay. In short, the world will be turned upside down for both parties. And there will be serious disruption to interstate commerce when the parties avail themselves to self-help.

Status Quo

That serious disruption to interstate commerce is why, until all of the steps in the RLA have been exhausted, the status quo must be maintained.

So, what is status quo? This is a question that’s gone all the way to the Supreme Court which ruled that it is “those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose… .” In other words, the employment terms that applied when the parties started the Section 6 process. And it applies to both management and labor. Illegal behavior by one side does not mean that the other party can respond with illegal behavior of its own. When a party violates status quo, there are consequences that could cost it dearly. For example, that party runs the risk of having an injunction issued against it by the court, which can lead to a contempt finding. Infringement could also lead to other negative results: leverage being handed to the other side at the bargaining table, prolonging the already lengthy bargaining process, letting the other party gain public relations advantage, and being slapped with monetary damages. For labor, there is also the added risk of job loss.

In 2016 and now for Contract 2020, our Union stood up our Strike Preparedness Committee (SPC) to help our Pilots navigate through the status quo period and prepare for the possibility of strike activity. The SWAPA SPC is an outstanding group of Pilots who have consistently demonstrated professionalism and exceptional capability. SWAPA remains one of the few unions who have not been reprimanded by the courts for illegal behavior. In Part 5, we will share with you some of the key cases of past violations and the damage they caused.