<p>[quote name='700UW' timestamp='1371736496' post='1008882']<br />
Do you all not understand what happened?<br />
<br />
It is apparent you dont understand bankruptcy and Section 1113 C of the code which outlines the procedures for collective bargaining agreements in chapter 11.<br />
<br />
<br />
<br />
[/quote]</p>
<p> </p>
<p>KATZ'S ON "SELP-HELP"</p>
<p> </p>
<p>Daniel M. Katz (VSB # 18022)</p>
<p>KATZ & RANZMAN, P.C.</p>
<p>1015 18th Street, N.W., Suite 801</p>
<p>Washington, D.C. 20036</p>
<p>(202) 659-4656 (Telephone)</p>
<p>(202) 659-3145 (Facsimile)</p>
<p>Attorney for the Communications Workers</p>
<p> </p>
<p>The reference to “work slow-downs or other service disruptions,â€</p>
<p>moreover, apparently constitutes an attempt to interfere with CWA’s right to engage in self-help</p>
<p>guaranteed under the RLA. As we demonstrate, infra, should the Court impose contractual</p>
<p>modifications to which CWA has not agreed, CWA would be free, under the RLA, to engage in</p>
<p>self-help and strike. The Norris- LaGuardia Act, 29 U.S.C. § 101, forbids the issuance of</p>
<p>injunctions against such lawful strikes. The Company’s proposal relating to outsourcing appears</p>
<p>designed to penalize the CWA and its members for exercising their right to engage in lawful</p>
<p>strike activities. Any court order embodying such a provision would therefore run afoul of the</p>
<p>Norris-LaGuardia Act.</p>
<p>Under the NLRA, unions retain the right to resort to self- help in support of their</p>
<p>bargaining positions upon bankruptcy court modification of their collective bargaining contracts</p>
<p>pursuant to § 1113. Crowe & Assoc., Inc. v. Bricklayers Local No. 2, 713 F.2d 211 (6th Cir.</p>
<p>1983) (vacating injunction against strike called to back up union’s demand that debtor pay</p>
<p>12 It is noteworthy that the carrier never even raised the issue in the hotly contested Continental Airlines</p>
<p>bankruptcy, in which all of the carrier’s unionized work groups went on strike when the airline repudiated its</p>
<p>collective bargaining contracts. See In re Continental Airlines Corp., 901 F.2d 1259 (5th Cir. 1990); ALPA v.</p>
<p>O’Neill, 499 U.S. 65 (1991). Nor did the courts issue an injunction against the pilots of the bankrupt Eastern</p>
<p>Airlines for engaging in a sympathy strike. Although the pilots’ contract was not rejected pursuant to Section 1113,</p>
<p>the strike was held lawful. Eastern Airlines, Inc. v. ALPA, 1989 WL 205343 (11th Cir.); IAM v. Eastern Airlines,</p>
<p>Inc., 121 B.R. 428, 431 n. 3 (S.D.N.Y. 1990), affirmed, 923 F.2d 26, 27 (2d Cir. 1991).</p>
<p>33</p>
<p>money into union pension fund); Briggs Transp. Co. v. Teamsters, 739 F.2d 341 (8th Cir.), cert.</p>
<p>denied, 469 U.S. 917 (1984) (strike to protest modification of collective bargaining agreement is</p>
<p>labor dispute that cannot be enjoined due to Norris LaGuardia Act, 29 U.S.C. § 101); In re</p>
<p>Petrusch, 667 F.2d 297 (2d Cir. 1981); In re Third Ave. Transit Corp. v. Quill, 192 F.2d 971, 973</p>
<p>(2d Cir. 1951); In re Kentucky Truck Sales, Inc., 52 B.R. 797, 806 (Bankr. W.D. Ky. 1985). See</p>
<p>also Teamsters v. IML Freight, Inc., 789 F.2d 1460 (10th Cir. 1986) (reversing and remanding</p>
<p>order approving rejection because bankruptcy court did not consider, inter alia, the likelihood</p>
<p>that the employees would strike). The Company does not contend otherwise, instead ignoring</p>
<p>the issue on the apparent assumption that airline employees should have fewer rights to respond</p>
<p>to the abrogation or modification of their collective bargaining contracts under § 1113 than</p>
<p>trucking or manufacturing workers.</p>
<p>To be sure, the RLA is a statute designed to deter premature resort by employers or</p>
<p>unions to self- help, and to encourage the parties to resolve their bargaining impasses by utilizing</p>
<p>mediation and voluntary arbitration, as opposed to strikes and lock-outs. So, too, however, is the</p>
<p>NLRA, which asserts as its first finding, in 29 U.S.C. § 151: “The denial by some employers of</p>
<p>the right of employees to organize and the refusal by some employers to accept the procedure of</p>
<p>collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the</p>
<p>intent or the necessary effect of burdening or obstructing commerce. . . .†Akin to the findings</p>
<p>and declarations of policy in the RLA, the NLRA further states as a declaration of national labor</p>
<p>policy in 29 U.S.C. § 171 a and B that:</p>
<p>(a) sound and stable industrial peace and the advancement of the general</p>
<p>welfare, health, and safety of the Nation and of the best interests of employers and</p>
<p>employees can most satisfactorily be secured by the settlement of issues between</p>
<p>employers and employees through the processes of conference and collective</p>
<p>bargaining between employers and the representatives of their employees;</p>
<p>34</p>
<p>b- the settlement of issues between employers and employees through</p>
<p>collective bargaining may be advanced by making available full and adequate</p>
<p>governmental facilities for conciliation, mediation, and voluntary arbitration to aid</p>
<p>and encourage employers and the representatives of their employees to reach and</p>
<p>maintain agreements concerning rates of pay, hours, and working conditions, and</p>
<p>to make all reasonable efforts to settle their differences by mutual agreement</p>
<p>reached through conferences and collective bargaining or by such methods as may</p>
<p>be provided for in any applicable agreement for the settlement of disputes. . . .</p>
<p>Thus, the RLA and the NLRA do not differ significantly on the primary point on which we</p>
<p>expect the Company to rely.</p>
<p>What distinguishes the RLA from the NLRA in this regard is not the overall aim of the</p>
<p>legislation, but rather the means by which that aim is realized. Under the NLRA, by and large,</p>
<p>the obligation of a union not to strike, and the obligation of an employer not to resort to self-help,</p>
<p>is created by the parties' contract, as interpreted in light of the aims of the statute. See Mastro</p>
<p>Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 280-83 (1956). Under the</p>
<p>RLA, the restriction against self- help dur ing the term of a contract is written expressly into the</p>
<p>statute. At the same time, the RLA contemplates that, once the parties have entered into a</p>
<p>collective bargaining relationship, that relationship continues indefinitely; that is, RLA contracts,</p>
<p>unlike NLRA contracts, do not have fixed terms, but rather come up for amendment periodically,</p>
<p>and remain in effect until amended. See, e.g., Bhd. of Ry. and S.S. Clerks v. Florida East Coast</p>
<p>Ry. Co., 384 U.S. 238 (1966) (contract terms that the employer did not specifically seek to</p>
<p>modify during collective bargaining negotiations continue in effect); Trans World Airlines v.</p>
<p>Indep. Fed’n of Flight Attendants, 809 F.2d 483 (8th Cir. 1987) (same), aff’d mem. by an equally</p>
<p>divided Court, 485 U.S. 175 (1988). And, it is against this backdrop that the RLA’s regulation of</p>
<p>employer and union self-help operate.</p>
<p>35</p>
<p>Before unilaterally changing the terms and conditions of employment described in a</p>
<p>collective bargaining agreement, a carrier must follow the detailed procedures specified in the</p>
<p>RLA for amending such an agreement. Section 2, Seventh of the RLA, 45 U.S.C. § 152,</p>
<p>Seventh, provides: “No carrier, its officers or age nts shall change the rates of pay, rules, or</p>
<p>working conditions of its employees, as a class as embodied in agreements except in the manner</p>
<p>prescribed in such agreements or in section 156 of this title.†See, e.g., RLA Section 6, 45</p>
<p>U.S.C. § 156, concerning written notice of the change. See also Brotherhood of Railroad</p>
<p>Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378 (1969) (summarizing the Act’s major</p>
<p>dispute resolution procedures). As the Supreme Court held in Brotherhood of Railway and</p>
<p>Steamship Clerks v. Florida East Coast Ry., 384 U.S. 238, 247 (1966), “The processes of</p>
<p>bargaining and mediation called for by the Act would indeed become a sham if a carrier could</p>
<p>unilaterally achieve what the Act requires be done by the other orderly procedures.â€</p>
<p>The significance of the RLA’s major dispute resolution procedures for present purposes</p>
<p>is this: The statute contemplates that a CBA, once entered into, does not expire on its own</p>
<p>terms, thus provid ing a trade-off between the right to self- help, on the one hand, and the stability</p>
<p>afforded by the continuing agreement, on the other. The RLA endeavors to secure this balance</p>
<p>by mandating a series of specified procedures before permitting an employer unilaterally to</p>
<p>impose changed terms and conditions on its employees or allowing a union to call a strike in</p>
<p>order to pressure an employer to agree to terms and conditions more favorable to employees.</p>
<p>Section 1113 disrupts this regime by allowing an employer, with Bankrup tcy Court approval, to</p>
<p>reject or modify a CBA without regard to RLA procedures. Thus, § 1113, like the RLA itself,</p>
<p>creates a process—albeit a comparatively accelerated process—for arriving at an impasse and</p>
<p>allowing employer self- help. There is accordingly only one logical way to reconcile the RLA</p>
<p>36</p>
<p>and the Bankruptcy Code, and to prevent the unfair consequences of permitting only one</p>
<p>collective bargaining party to engage in self- help in support of its bargaining position. That is to</p>
<p>understand § 1113 as the functional equivalent of the major dispute resolution procedures of the</p>
<p>RLA. We submit that the Court should therefore recognize, just as every court to have</p>
<p>considered the question under the NLRA has held, that rejection or modification of a CBA,</p>
<p>followed by an employer’s unilateral imposition of terms and conditions, triggers the right to</p>
<p>strike on the part of employees.</p>
<p>Moreover, if the CWA were to strike, it would do so specifically in order to “maintainâ€</p>
<p>the collective bargaining agreement, as required under Section 2, First of the RLA, 45 U.S.C. §</p>
<p>152, First, not to undermine it. RLA Section 2, First provides: “It shall be the duty of all</p>
<p>carriers, their officers, agents and employees to exert every reasonable effort to make and</p>
<p>maintain agreements concerning rates of pay, rules and working conditions ….†Section 2, First</p>
<p>therefore supports the Union’s position that the Bankruptcy Court should leave all of the</p>
<p>provisions of the contract intact, exactly as the parties agreed to them.</p>
<p>In addition, Section 2, First is inextricably linked to other provisions of the RLA, which</p>
<p>provide for an orderly, but drawn out process for the negotiation and modification of collective</p>
<p>bargaining contracts. By obtaining the Bankruptcy Court’s approval of its modification of the</p>
<p>CWA contract, over the CWA’s objection, US Airways would be sidestepping the RLA’s</p>
<p>detailed procedures for contract formation and amendment. Having itself eschewed the RLA</p>
<p>processes, US Airways would have no equitable basis from which to contend that the RLA itself</p>
<p>prevents the Union and its members from striking on the theory that they are under a duty to</p>
<p>“make and maintain†their collective bargaining agreement, even though the Company is</p>
<p>purportedly at liberty to modify it.</p>
<p>37</p>
<p>Any attempt by US Airways to enjoin a strike, moreover, would be doomed to fail. As</p>
<p>the Supreme Court emphasized in Machinists v. Street, 367 U.S. 740, 772 (1961), “AThe Norris-</p>
<p>LaGuardia Act [29 U.S.C. ' 101 et seq.]. . .expresses a basic policy against the injunction of</p>
<p>activities of labor unions.†Prior to the enactment of the Norris- LaGuardia Act in 1932, federal</p>
<p>courts routinely issued injunctions against peaceful strike activity in spite of the fact that the</p>
<p>Clayton Act, 29 U.S.C. Â&
