Swan,
How about the Donn B. Gentlemen Documents! Enjoy!
Hate
Gentlemen,
With Donn Butkovic’s permission, I am forwarding two emails he recently wrote concerning our pay rates on January 1, 2010.
Here is the first.
Glad to answer your inquiry. First, let me make it clear that I am not saying that we have a "snapback" coming. A snapback would be in the nature of a return to the old provision of a contract; those that existed at the time that the new provision took place. In this case that new provision was LOA93 and the old provision was LOA84. What I am talking about here is the expiration of the LOA93 pay rate provision. What? You may be thinking that labor contract provisions do not expire under the law called the Railway Labor Act (RLA), they merely become amendable in what is referred to as a "status quo" period, and that therefore without specific snapback language in a contract no change to the provision is possible. Status quo is the general rule as to how labor contracts operate under the RLA when otherwise silent, but it is not absolute, nor exclusive.
This is simple, but thinking back to when Congress dreamed up the RLA, among the many provisions they included in that law, they applied the status quo concept . This was a change to the fundamental legal rule that a contract expires on its end date, usually leaving the parties free to impose what we call "self-help." It also prevents parties from making unilateral changes to the terms of the contract after the amendable date. As a matter of public policy Congress did not want the transportation system of our country disrupted every time a labor contract expired, so established this staus-quo concept rather than allow these labor contracts to simply expire and self-help take hold. Initially, this was only applied to railroad labor contracts, hence the name RLA. Then, it was extended to the airline industry by Title II of the RLA. Some say Congress did this to remove self-help leverage from organized labor, some say it was done to protect workers from the unilateral imposition of onerous labor terms by the employer. Everyone is free to opine on the matter. However, what is clear is that Congress was protecting the public transportation system, not preventing the parties from making agreements, selective or otherwise, either before, on, or after the end (amendable) date of the contract.
Again, the point is that Congress did not prevent the parties to a contract under the RLA (management and labor) from making agreements on or even after the amendable date of an underlying contract. Our contract is no exception and we have many examples of doing exactly that. For example, in LOA84, which by its terms was amendable on Dec. 31, 2008, we agreed to include pay raises on Jan. 1, 2009 and May 1, 2009. Notice that both of these dates are in what is the staus quo time period for the remainder of the provisions of LOA84. You can think of the status quo period for the pay rates provision of LOA84 as beginning on May 1, 2009, even though the status quo period for the remainder of LOA84 was Dec 31, 2008. Get it? Status quo if silent, effective if explicit.
Remember, unless otherwise stated, all terms of a contract are subject to the status quo provision of the law when the amendable date is reached. There are several ways to say otherwise, one of which is the example I gave in the above paragraph. Another technique is to state that a provision(s) is to only be in effect for a certain period of time. It is the use of this language that I read in the pay rates provision of LOA93. Paraphrasing, the writer of this specific provision wrote that the pay rates will be frozen and reduced a further 18% from the date of signing through Dec. 31, 2009. This is exactly the way that a contract writer indicates that a provision is not to become part if the status quo. He gives the provision a certain beginning date and a certain ending date. This is so even though the amendable date and the end of the "time certain" provision are coincident. Think of it this way, had the writer indended the pay rates provision to simply be included in the status quo, he would not have given it its own special time period. Had he simply been silent as to the time the provision was to end it would be included in the underlying status quo period of the specific agreement. LOA93 extended the amendable date of LOA84 one year, to Dec. 31, 2009, but expressly ended the concessinary pay rate provision after Dec. 31, 2009.
Since the LOA93 pay rate provision ends after Dec. 31, 2009, what pay rate provision is in effect on Jan. 1, 2010? The answer to that question is found in the underlying provisions of the agreement that preceded LOA93. That of course is LOA84. LOA84 is the contract that was in effect regarding pay rates when LOA93 was made effective. Therefore, LOA93 modified and changed LOA84 to the extent is was explicit on the term. Just like LOA 84 modified the first concessionary agreement in mid-2002 and the first concessionary agreement modified the basic agreement that was effective in 1998. According to the explicit pay rate term of LOA93, the pay rate provision of LOA84 was changed on the effective date of LOA93. Also, according to its explicit time of effectiveness, the LOA93 pay rates provision expires after Dec 31, 2009, leaving in its place the provisions of LOA84 for that date and beyond.
As previously stated, LOA84 was amendable on Dec 31, 2008, but had explicit pay rate raises on Jan 1, 2009 and May 1, 2009. But for LOA93's explicit pay rates provision carrying through Dec 31, 2009, LOA84's pay rate provision would be in effect, albeit in its own status quo period beginning on May 1, 2009. Therefore, with the explicit expiration of the LOA93 pay rate provision after Dec 31, 2009, the pay rate provision of May 1, 2009 contained in LOA84 is in effect, but is itself subject to staus quo.
This is not, not, not a snapback in pay rates. We will not go back to pay rates in effect on Oct 15, 2004, the effective date of LOA93. This is simply a matter of a modifying time certain contract provision expiring by its own terms and the underlying contract provision that was modified becoming again effective. (Read that again.) The status quo provisions of the RLA do not change the basic freedoms that parties have to bargain and write their contracts. Management cannot now successfully say that because our contract is subject to the RLA, all provisions of that contract are subject to status quo on Dec 31, 2009. The RLA status quo period was not made law to relieve either management or labor of their responsibilities when bargaining. Remember, it was written to protect the public interest in a reliable transportation system, not often interrupted by self-help in labor-management relations. Congress doesn’t care whether you make a good contract, a cheap contract, an expensive contract or a concessionary contract. Nor do they care whether concessions last for 1 year, 5 years or ten years. They just don't want their constituents calling and complaining that their latest flight or train was cancelled because the pilots or coal shovellers went on strike today. Neither can management successfully say that because a time certain provision ends coincident with the start of a staus quo period that the provision itself is subject to status quo. (Read that again, too.) That would make no sense and would effectively null and void the explicit time certain existence of specific clauses. This is not the interest that the RLA protects.
Therefore, in summary answer to your question, because the concessionary pay rates provision of LOA93 ends after Dec 31, 2009, the concessionary pay rates provision on the underlying LOA84 is effective. Those rates of pay that would be in effect on Jan 1, 2010 under the terms of LOA84 are the rates that are to be paid to the pilots subject to that contract. As I said earlier, those rates are the LOA84 rates for May 1, 2009.
Consider this too Steve, had we in LOA84 provided for another pay rate increase on Jan 1, 2010 or on May 1, 2010, then under the explicit terms of that agreement we would be paid those rates on those dates, regardless the fact that LOA84 itself was made amendable on Dec 31, 2008. The LOA93 pay rates provision that modified LOA84 ends, by its own terms, after Dec 31, 2009. When the clock strikes 0000 on Jan 1, 2010, the pay rates of LOA84 are no longer modified by LOA93, and are therefore effective.
From some of the behavior that I see from this management regarding other terms of the contract, e.g., refusal to pay qualified DC plan contributions to pilots on LTD, a $40 million liability, I am left to wonder if they can read, or if they are just a bunch of cheats. I am not sure if they have read the LOA93 pay rates provisions, nor if they are in agreement with the above. I have not spoken to anyone in management about the contract since ALPA was voted off the island, me along with ALPA, therefore I do not know.
However, if I heard that management did not intend to follow the course of the contract I would inquire of them in writing. Receive their answer, and if not in accord, or if no answer received in a timely period, file a grievance. Grievance is the only legal avenue to pursue in a minor dispute over the terms of a RLA labor agreement. As slow as that process can be, until Congress gets involved and changes the rules, a grievance is our only course of legal action.
I hope this note is effective in explaining my thinking to you and that you did not find it too difficult or tedious to follow. If not satisfactory, please give me a call and we can talk about it.
Be well and keep the rubber side down,
Donn
Thanks for posting this< Hate
I think it will be interesting to see how the pace of contract negotiations pick up when the company loses this one.
