NWA vs AFA

[Bear96]

Well "REA Express INC vs Brotherhood of Railway (1973SDNY)" covers that. The court ruled:Union did not surrender right to strike by forebearance of such right while it pursued further efforts to reach peaceful settlement of labor dispute.

So the flight atendants did not surrender their right to engage in self help because they delayed. Under the RLA they are still free to strike.

That case does not support your conclusion at all.

You left out a couple of crucial facts. To start, here is a summary of the case (from Lexis), REA Express, Inc. v. Brotherhood of Railway, Airline and Steamship Clerks, 358 F. Supp. 760 (S.D.N.Y. 1973), with relevant portions bolded:

Following unsuccessful bargaining between the union and the carrier, the National Mediation Board, pursuant to § 5 First of the act, notified the parties that its services were terminated, leaving the union free to strike 30 days thereafter. However, no strike was then called, and the parties eventually entered into an agreement under which, inter alia, the union agreed it would not strike at that time. The agreement was subject to unilateral termination upon 10 days notice. Eventually, the union gave notice of cancellation and went on strike. The carrier argued that the agreement had voided the union's right to strike on its original notices under § 6 of the act, codified at 45 U.S.C.S. § 156. However, the court held that the union had not, by its forbearance in calling a strike, surrendered the right to strike which had matured when the mediation board's 30-day notice had expired. The court also held that the union had not violated § 2 First of the act, which required the parties to exert every reasonable effort to settle disputes. The fact that the union had adhered to its demand for a substantial wage increase did not establish a breach of its duty under § 2 First.

So in that case we have (1) a release by the NMB, and (2) an agreement concerning the strike action between the employer and the union, a portion of which (the unilateral ten day notice provision) the employer basically tried to make unenforceable. Neither of those facts exist in the NWA/AFA case, and both are vital to this decision. Therefore that case is all but irrelevant to the present dispute.

Now, BK code. If NWA decided to pay Exxon only 50 cents a gallon after the judge abrogated their $3/gallon contract and Exxon did not immediately cut off delivering fuel could the court force Exxon to continue to provide fuel at 50 cents/gallon?

Oy. You still appear to be unable to comprehend that (for the trillionth time) collective bargaining agreements are treated differently than other executory contracts under the bankruptcy code. Collective bargaining agreements are addressed under 11 U.S.C. S 1113; other executory contracts are addressed under 11 U.S.C. S 365. So this example is not relevant either (even assuming it were accurate, a point which finman addressed, but I don't know enough about fuel contracts to comment on).

Anyway, since you didn't ask, here is where I think Marrero got it wrong. He made too much of the supposed distinction that the NLRA's primary goal is to protect the right to strike, while the RLA's is to delay or prevent strikes. He used this to create an artificially wide distinction to distinguish all of the NLRA bankruptcy precedent cited by AFA holding that unions can strike once their contracts have been abrogated in bankruptcy.

I think that distinction is bunk. IMO, he already decided that he was going to find the strike illegal, so he had to justify a distinction between the NLRA bankruptcy cases and the situation before him. While it is true that the RLA makes it more difficult to strike than the NLRA and has procedures in place to delay the process, he could just as easily have noted that the primary purpose of the NLRA is "to promote industrial peace" (as the Supreme Court has noted in many cases), which sounds suspiciously like how he was describing the RLA, and therefore they should be treated the same.

His reasoning that a major goal of the RLA is to delay strikes and prevent disruptions in commerce may have been enough to support his conclusion if there weren't all those NLRA bankruptcy cases out there on the issue. However, IMO the policy goals of the NLRA and the RLA aren't sufficiently different to justify his rejecting the NLRA bankrupcty cases totally and striking out in the opposite direction.

If he is going to be reversed, I suspect it will be on that reasoning.

The fact is that the BK code does not grant the court such powers. It allows the court to terminate contracts but it does not give the court the right to impose new terms that are unfavorable to those who do business with the BK company. The court can write new terms but the other party still has the right to reject them.

Now you're making more sense. I'm not sure courts will ultimately agree with you, but expressing it like that is a lot more persuasive.

 

[FWAAA]

Fine, substitute fuel with widgets instead, the rationale and arguement is the same, can the court confiscate the property of others for the benifit of a company thats mismanaged? The fact is that the BK code does not grant the court such powers. It allows the court to terminate contracts but it does not give the court the right to impose new terms that are unfavorable to those who do business with the BK company. The court can write new terms but the other party still has the right to reject them.

What you're overlooking is that the employees have the same ability as EXXON to refuse to supply their input if they're unhappy with the price: They can resign.

If the hypothetical $3/gal contract is rejected by the debtor, EXXON is free to walk away and sell their fuel to someone else. If the debtor offers only $0.50/gal, EXXON is free to say "no." Just like the NWA FAs. They're free to reject the terms offered by NWA. But each and every day, most of them say "yes" and accept the terms.

Funny thing, though - if NWA and EXXON had a pre-bankruptcy $0.50/gal contract, EXXON could not refuse to perform; if it did, the court would award the difference in price to the debtor.

Contrast that with the FAs: Had the FAs agreed to a pre-bankruptcy agreement of huge (say, 75%) paycuts, they would still be free to resign (individual self-help) if they later changed their mind. The FAs are free to change their minds and stop working for NWA whenever they feel like it - in that respect, they have more rights than any of the other suppliers. The other suppliers are stuck dealing with NWA if NWA accepts their contracts, and those other suppliers can be summarily fired if NWA rejects their contracts. The FAs, on the other hand, always have a choice - show up for the reduced pay or quit.

I realize that it angers you that the NWA FAs are currently prohibited from withholding their labor in a collective fashion - but then again, EXXON can't withhold their fuel from NWA and then picket NWA to try to persuade others to refuse to sell fuel to NWA.

Yes, I know - quitting isn't as valuable as striking. But you insist on talking about "confiscating the property of others" as if the FAs are prohibited from resigning. There's no indentured servitude going on - there's no slavery and nobody is "confiscating" anything from the backbone-lacking FAs.

I support the right of employees to collectively bargain and to collectively withhold their labor when negotiations break down. But the spineless NWA FAs blew it when they didn't strike the moment their contract was abrogated. By delaying and delaying their threatened job action, they gave the court a mountain of incontrovertible evidence that a further delay of their rights to implement self-help WON'T HARM THEM AT ALL.

After all, if delaying a strike irreparably harmed the FAs, then they brought that harm on themselves by their two delays - the first was the delay that the AFA gave because the earlier union had committed to that delay. Then came the Aug 10 London Liquid Lunacy and the AFA granted yet another extension.

They waited and waited and waited and then lost. Their claim that the injunction harms them rings somewhat hollow now. They weren't in any hurry to strike in August (before any court had told them they couldn't strike) so I don't believe there's any hurry to strike now.

 

[tech2101]

Here is the latest from the AFA Newsletter:

Newsletter

"After three days of meetings the federal mediators determined that additional mediation sessions are warranted. Due to scheduling conflicts, the original October 9th date had to be rescheduled and it is now expected that the meetings will be scheduled for the week of October 16th." :down:

Scheduling conflitcts??? Whose schedule? The AFA continues with the stall tactice so they can get all the low seniority people on the voting list. Remember, you must be a memeber in good standing to vote on the paycut T/A.

"3. Dues Check-Off


There has been much confusion surrounding Membership Applications and Dues Check-off.

Immediately after being certified as our bargaining representative, AFA-CWA sent to each of our homes a Membership Application and Dues Check-Off form. If you completed these items, no further action is required on your part.

If not please do so today." <_<

 

[jenny@nw]

Here is the latest from the AFA Newsletter:

Newsletter

"After three days of meetings the federal mediators determined that additional mediation sessions are warranted. Due to scheduling conflicts, the original October 9th date had to be rescheduled and it is now expected that the meetings will be scheduled for the week of October 16th." :down:

Scheduling conflitcts??? Whose schedule? The AFA continues with the stall tactice so they can get all the low seniority people on the voting list. Remember, you must be a memeber in good standing to vote on the paycut T/A.

"3. Dues Check-Off
There has been much confusion surrounding Membership Applications and Dues Check-off.

Immediately after being certified as our bargaining representative, AFA-CWA sent to each of our homes a Membership Application and Dues Check-Off form. If you completed these items, no further action is required on your part.

If not please do so today." <_<

I think its kinda good that they brought everyone back. SOME people on low senority who didn't read the POS imposed contract didn't figure out you don't get 4:15s anymore and also if you call in sick it's 4:15 no matter how much your trip is worth. Oh boo hoo and no more getting all your days off in a row for reserves. People are quitting in droves... and its not just F/A.

I am wondering about all those selfish people who decided they weren't gonna walk with the MX.... I flew with a few...believing in all that propaganda the company sent out and not staying informed on your days off on what is going on with the company....

now all I'm hearing is how they don't know how they are gonna make it. I'm scared! I'm gonna go borrow from my 401k! Feel sorry for those who voted yes (like I did) but I don't feel sorry for those who went around ranting how they are not going to walk with the mx. Pretty funny when they ask what my husband does for a living after they say stuff like that....

Oh well. I stood by my man and that's all I'm gonna say. I already went through this mess last year and all is well in the Jenny household as of now. :wub:

 

[Bob Owens]

That case does not support your conclusion at all.

You left out a couple of crucial facts. Neither of those facts exist in the NWA/AFA case, and both are vital to this decision. Therefore that case is all but irrelevant to the present dispute.

"All but." The point is that delay in excercising self help does not mean they they give up the right to exercise it. Also they never entered mediation, and NWA went directly into self help via BK and under the RLA if one party exercises self help the other is free to do likewise.

Oy. You still appear to be unable to comprehend that (for the trillionth time) collective bargaining agreements are treated differently than other executory contracts under the bankruptcy code. Collective bargaining agreements are addressed under 11 U.S.C. S 1113; other executory contracts are addressed under 11 U.S.C. S 365.

True, but when this sect was added the intent was supposedly to provide workers contracts with more protections under BK, not less, than other contracts, however recent court "interptretations" of this section have been doing the opposite. Sect 1113 supposedly set higher criteria for abrogation of labor contracts vs other contracts. Still nowhere under Sect1113 does it give the court the right to block strikes.

His reasoning that a major goal of the RLA is to delay strikes and prevent disruptions in commerce may have been enough to support his conclusion if there weren't all those NLRA bankruptcy cases out there on the issue. However, IMO the policy goals of the NLRA and the RLA aren't sufficiently different to justify his rejecting the NLRA bankrupcty cases totally and striking out in the opposite direction.

Well first of all I disagree that the "major Goal" of the RLA is to delay or prevent strikes. Thats more of an unfortunate byproduct of the law. To state that the major goal of the RLA is to subject workers to unfavorable terms, even though that is often the result, is an incorrect interpretation of the law.

The major goal of the RLA is to prevent disruptions to commerce by ensuring that the terms that are in place are those that were agreed upon by both parties at one point in time and that those terms remain in place up until mutually agreed upon modifications to those terms are made. The RLA was made because the government recognized that subjecting workers to unfavorable terms would result in lawless behavior by workers that would interupt commerce. "Illegal strikes" were plauging the Railroad industry so passing laws that granted these workers some protections were neccesary to ensure that commerce went uninterrupted. If an agreement upon new terms can not be reached through mediation, under the RLA, old terms must be adhered to until such time that the NMB releases the parties. The intent is not to delay, but rather to utilize a delay to prevent entrenchment of the parties ie "cooling off period" not "delay period".

The RLA recognizes that the workers have a right to strike and that if an agreement can not be made and the impact to commerce is intolerable that Congress, not a BK judge, can impose new terms.

In this case the BK court threw out the contract that was in place, therefore bypassing sect6, mediation, cooling off and release and even a PEB, bringing the parties directly to the self help point of the process. By throwing out the contract the BK court released both parties to the terms of the contract. It was never the intent of the RLA to subject workers to work under terms that they never agreed to. Abrogation of the contract does not negate the fact that the contract did exist at one point in time.So, under the RLA its clear that the company has engaged in self help and therefore the workers are free to do the same. It is an unreasonable interpretation of the RLA to allow the company to utilize a friendly court to bypass the mediation processes outlined under the RLA and to go directly to self help, then claim that the same mediation process prevents the workers from also engaging in self help. Clearly this was not the intent of the law because such unfairness inevitably does, and should, result in lawless behavior that interupts commerce. It brings workers back to where they were before the law existed.

 

[Bob Owens]

What you're overlooking is that the employees have the same ability as EXXON to refuse to supply their input if they're unhappy with the price: They can resign.

Yes and no. If they resign collectively under the leadership of the AFA its considered a strike.

I support the right of employees to collectively bargain and to collectively withhold their labor when negotiations break down.

Obviously, from everything else you said, you dont. Collective bargaining laws were put in place because it was recognized that in an industrialized society labor was at a disadvantage and that unless safeguards were put in place by the government economic and political upheaval would result.

The arrogance of the arguement that access to individual resignation, but not slowdowns, Chaos etc constitutes fairness, is pure bull. To imply that a contest between an elephant and an ant is fair because both have what on a face value appear to be equal options, while ignoring mass, is equally ludicrous. By denying the flight attendants the ability to act collectively they are unfairly tilting the scales and rigging the contest.

If workers are pitted in a game where the rules are applied or altered to the point where the only possible result is that they lose, then there is no real incentive to follow those rules.

 

[Bear96]

The point is that delay in excercising self help does not mean they they give up the right to exercise it.

I agree, but I am still not seeing your point. The court never said that AFA's delay meant that they gave up the right to exercise it. That seems to be FWAAA's interpretation of the practical results of the delay, not the court's interpretation of the legal results. The court said that in this case, AFA never had the right to self help to begin with at this point in the dispute.

Also they never entered mediation, and NWA went directly into self help via BK and under the RLA if one party exercises self help the other is free to do likewise.

OK, you keep saying the same thing over and over, that if one party exercises self help the other is free to do likewise. Got it. But you don't address the court's point that in this case NWA technically (and legally) did NOT exercise self help under the RLA.

True, but when this sect was added the intent was supposedly to provide workers contracts with more protections under BK, not less, than other contracts, however recent court "interptretations" of this section have been doing the opposite. Sect 1113 supposedly set higher criteria for abrogation of labor contracts vs other contracts.

Not "supposedly." Section 1113 indeed sets much higher criteria for abrogation of labor contracts compared to other contracts in bankruptcy. With other contracts, under S 365, the debtor simply has to say, "Nope, I no longer want to be bound by that contract, so see ya," and its obligations go away. Under S 1113, there is a much more difficult process the debtor has to go through to get rid of labor contracts.

However, I agree with you to the extent that once a debtor successfully goes through the more difficult S 1113 process, which initially gives unionized employees more rights than other creditors in bankruptcy, the employees have fewer practical options than other creditors. I don't quite buy into the reasoning of people like FWAAA who say the employees can simply take their labor elsewhere. While that is true, it ignores unions' rights to act collectively, so it is not a complete answer to the problem.

Still nowhere under Sect1113 does it give the court the right to block strikes.

A court can always block an illegal strike. You don't need a specific provision in every law stating that.

Well first of all I disagree that the "major Goal" of the RLA is to delay or prevent strikes. Thats more of an unfortunate byproduct of the law. To state that the major goal of the RLA is to subject workers to unfavorable terms, even though that is often the result, is an incorrect interpretation of the law.

I hope you noticed that I agree with you here, and was only explaining (and criticizing) the court's reasoning.

 

[Bob Owens]

I agree, but I am still not seeing your point. The court never said that AFA's delay meant that they gave up the right to exercise it. That seems to be FWAAA's interpretation of the practical results of the delay, not the court's interpretation of the legal results. The court said that in this case, AFA never had the right to self help to begin with at this point in the dispute.
OK, you keep saying the same thing over and over, that if one party exercises self help the other is free to do likewise. Got it. But you don't address the court's point that in this case NWA technically (and legally) did NOT exercise self help under the RLA.

Of course they did. The Judge is utilizing semantics. Self help is defined as changing the rates of pay and working conditions. NWA was not forced into BK, they chose to go there. NWA chose to go to the Judge seeking to impose new terms. The Judge allowed them to impose new terms in spite of the RLA, in other words allowed them to excercise self help without going through the negotiations process as defined in the RLA but it does not change the fact that their actions fit the definition of Self help. Who benifited from these actions? Certainly not the FAs, so who was NWA helping when they changed the rates of pay? Itself! Self help.

A court can always block an illegal strike. You don't need a specific provision in every law stating that.

But its not an illegal strike. NWA never entered into the mediation process, it utiliuzed the BK courts to go straight to self help.

I hope you noticed that I agree with you here, and was only explaining (and criticizing) the court's reasoning.

Yes I noticed but I felt the point needed to be made that the RLA was considered progressive at the time and was not intended to be used as it has for the last 20 years or so. Todays Jurors just look at the words and twist it to suit their pro-company bias and ignore the history of how the law came to be and what its intent was. It seems that since the courts know that unions are run by spineless bootlickers that they abuse and change the law. They know that no matter how they rule, how convoluted the logic, how unfair, and transparently they display their pro-company bias, that the unions will simply comply. In another age, when there were true leaders, such injustice would have been answered by massive disruptions. Sure they would have hauled the leaders off to jail but that only galvanized support among the workers. Workers routinely violated injunctions when they were so obviosly biased. In fact, the RLA came to be because of the fact that prior to the RLA workers were given no choice but to act in an illegal manner in order to get things resloved fairly and these illegal acts were resulting in disruptions to commerce. If we had true union leadership they would have had every union worker walk off in protest way back when the first contract was abrogated. Abrogated while the same companies gave bonuses to their executives-so much for the reasonable and equitable clauses in sect 1113.

Not "supposedly." Section 1113 indeed sets much higher criteria for abrogation of labor contracts compared to other contracts in bankruptcy. With other contracts, under S 365, the debtor simply has to say, "Nope, I no longer want to be bound by that contract, so see ya," and its obligations go away. Under S 1113, there is a much more difficult process the debtor has to go through to get rid of labor contracts.

"Supposedly" because in despite the claims that its much more difficult the fact is that no major carrier has been denied, even as they do not demand similar conmcessions from other vendors or other employees. Look at how NWA just ordered billions in new aircraft while claiming that they cant meet their obligations to their workers. Look at how USAIR was awarding millions in bonuses to their executives while demanding billions in concessions from their workers. There hasnt been any BK where the courts have considered the fairness and reasonableness of the demands made by these airlines upon their workers.Its obvious that the courts are not taking everything in sect 1113 into account when they give the airlines everything they want.

However, I agree with you to the extent that once a debtor successfully goes through the more difficult S 1113 process, which initially gives unionized employees more rights than other creditors in bankruptcy, the employees have fewer practical options than other creditors. I don't quite buy into the reasoning of people like FWAAA who say the employees can simply take their labor elsewhere. While that is true, it ignores unions' rights to act collectively, so it is not a complete answer to the problem.

I still disagree that in practice that abrogation of labor contracts has proven to be difficult.

 

[Bear96]

But its not an illegal strike.

Marrero said it would not be legal for AFA to strike at this time. Therefore, it would have been an illegal strike under U.S. law. Maybe he will be overruled at some point in the future, but unless and until that happens, it would have been illegal.

 

[eolesen]

I still disagree that in practice that abrogation of labor contracts has proven to be difficult.

Really?

As far as airlines go, there's only been one actual arbrogation in the 20+ year history of S1113 -- AFA vs. NWA.

Whether you believe good faith bargaining actually took place or not, every other S1113 proceeding I can think of was resolved thru a consensual agreement between labor and management, and arbrogation by the court didn't take place.

I'd say that given the track record of one case, it's probably a bit difficult to interpret S1113 as a rubber stamp approval on the part of the bankruptcy judge.

 

[Kev3188]

Really?

As far as airlines go, there's only been one actual arbrogation in the 20+ year history of S1113 -- AFA vs. NWA.

I thought the FSA agreement at US was abrogated???

 

[Bear96]

UA got court permission to impose terms on its mechanics at one point under S 1113 as well.

 

[Spock]

Read a Flt Attendant's letter (dated Oct 14th).
A sad state of the union observation for the AFA.
http://www.amfa33.org/strike/flight_attendant_emails.htm

 

[jenny@nw]

Read a Flt Attendant's letter (dated Oct 14th).
A sad state of the union observation for the AFA.
http://www.amfa33.org/strike/flight_attendant_emails.htm

I'm skeptical on a few of this person's points.... I know personally some of these facts don't jive with what I know personally.

 

[Bob Owens]

Marrero said it would not be legal for AFA to strike at this time. Therefore, it would have been an illegal strike under U.S. law. Maybe he will be overruled at some point in the future, but unless and until that happens, it would have been illegal.

It would be a violation of the injunction, not a violation of the RLA, which is the flawed arguement that he is using to issue the injunction.

How many injunctions were issued against Martin Luther King Jr? The fact is the Judge is making up laws as he goes along and sometimes people need to take a stand against crooked Judges.