1. Courtesy Ashgate Publishing | www.ashgate.com Foundations of Aviation Law Michael W. Pearson and Daniel S. Riley © 2015 978-1-4724-4563-6 (paperback) 978-1-4724-4560-5 (hardback)

2. Courtesy Ashgate Publishing | www.ashgate.com Chapter 9 Aviation Labor Law Foundations of Aviation Law

3. Courtesy Ashgate Publishing | www.ashgate.com Chapter Objectives After reading this chapter, you should: know what a labor union is and understand how one is formed; recognize the difference between a “major dispute” and a “minor dispute” under the Railway Labor Act; understand the distinction between mediation and arbitration; understand the role of the federal government in both private and public sector labor disputes.

4. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Private Sector The Railway Labor Act The Railway Labor Act governs the relationship between employers and employees in the airline industry. The Act is administered by a federal agency, the National Mediation Board, and was designed to balance three competing interests: (1) employees’ right to unionize; (2) employers’ desire to resolve labor disputes without strikes; and (3) the public’s interest in the uninterrupted flow of commerce.

5. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Private Sector How a Labor Union is Formed A labor union is formed by a majority vote of the affected employees. The Railway Labor Act prohibits employers from interfering with employees’ right to organize and it flatly forbids “yellow dog” contracts, in which an employee must agree never to join a union as a condition of employment. Once a union has been formed, the first order of business is to negotiate with the employer to reach a contract, called a collective bargaining agreement, regarding the terms and conditions of employment.

6. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Private Sector Minor Disputes Disagreements inevitably arise between employers and labor unions. These disagreements can be classified as either major disputes or minor disputes. Minor disputes involve isolated grievances that hinge on an interpretation of the existing agreement. Minor disputes that cannot be resolved privately between the union and the employer are referred to a board of adjustment. Generally, boards of adjustment are comprised of two representatives from the union and two representatives from management. If these four individuals reach a deadlock, either side may request that the National Mediation Board appoint a neutral referee.

7. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Private Sector Major Disputes A major dispute is one that concerns the formation or modification of the collective bargaining agreement. The first step to any major dispute is personal negotiation between the employer and the union. If negotiations fail, either party may submit the dispute to the National Mediation Board. Unlike judges, mediators do not have the power to issue rulings or declare one side victorious. Instead, the goal of a mediator is to help the parties reach a settlement. If no settlement is reached through the mediation process, there are three possible outcomes: Binding Arbitration; The Cooling-Off Period; or Empanelment of a Presidential Emergency Board.

8. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Private Sector Binding Arbitration This option is only available if both parties agree to it. Arbitration is different from mediation. Unlike the mediation process, arbitration is an adjudicative process. The arbitrator will hear from both sides and will then make a ruling as to how the dispute must be resolved. The benefit of arbitration is that it is quick and definitive. Both parties must rely on the wisdom of a neutral third party to choose the outcome.

9. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Private Sector The Cooling-Off Period If the parties do not agree to submit the case to arbitration, the mediation board may initiate a 30-day “cooling-off” period. The parties can continue to negotiate amongst themselves to try and reach a settlement during this period. Once the 30 days is up, either party may engage in “self help.” For unions, self-help generally involves strikes and picketing activities. Employers can engage in their own form of self-help by conducting lockouts, hiring new employees to fill the vacancies created by striking workers, and imposing the employer’s last best contract offer on employees.

10. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Private Sector Empanelment of a Presidential Emergency Board In rare cases, the National Mediation Board may issue a recommendation to the President to empanel an emergency board to assist in resolving a labor dispute. The President may establish a Presidential Emergency Board (PEB) if the labor dispute threatens “to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service.” PEBs are convened by executive order and the President selects the members of the board. The PEB’s purpose is to investigate a labor dispute and issue recommendations to the parties. While PEBs have the power to investigate and make recommendations, they ultimately cannot enforce those recommendations.

11. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Private Sector How Major Disputes are Resolved Under the Railway Labor Act, breakdowns in contract negotiations can only end by the agreement of the parties. While the federal government can ensure that the parties comply with the Act and can offer a forum for the parties to discuss settlement, the Act does not provide a method for the federal government to forcibly intervene in a private sector labor dispute. This isn’t to say that the federal government could not act in the event of a crippling labor dispute. If a strike were to affect national security, the President could presumably issue an executive order ending such a strike. Similarly, Congress could intervene by passing a statute resolving the parties’ dispute.

12. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Government Sector Labor Policy in the Government Sector Labor policy in the public sector is very different from that in the private sector. President Kennedy established the federal government’s modern labor policy in 1962 when he issued Executive Order 10988. This order officially recognized the right of government employees to unionize and bargain over conditions of employment. This policy was expanded in 1978, when Congress passed the Civil Service Reform Act. The Act is administered by the Federal Labor Relations Authority (FLRA) and provides a comprehensive system for resolving labor disputes.

13. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Government Sector Prohibited Practices in the Public Sector The Civil Service Reform Act bars both labor unions and agencies from engaging in certain types of behaviors. Among other things, it prohibits labor unions from: –interfering with any of the rights an employee may have under the Act; –failing to negotiate with the agency in good faith; –failing to cooperate in impasse procedures; and –calling or participating in any strike, work stoppage, slowdown, or picketing.

14. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Government Sector Prohibited Practices in the Public Sector The Civil Service Reform Act prohibits agencies from: –encouraging or discouraging union membership; –sponsoring or controlling a union; –disciplining or discriminating against any employee for filing a complaint under the Act; –failing to negotiate with the union in good faith; and –failing to cooperate in impasse procedures. These prohibitions contain crucial differences with the Railway Labor Act. While self-help is sanctioned in the private sector, it is flatly prohibited in the public sector. Violations of these prohibitions are called unfair labor practices.

15. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Government Sector Grievance Procedures in the Public Sector In the public sector, all collective bargaining agreements must contain a grievance procedure. Grievances are analogous to the “minor disputes” under the Railway Labor Act. Section 7103 of the Civil Service Reform Act defines a grievance. The Act also exempts certain issues from the grievance procedure, such as disputes concerning the classification of positions; assignment of work; promotions; and interpretation of the agency’s mission, budget, organization, number of employees, and internal security. While parties are free to establish their own grievance process, the Act requires that any such process be “fair” and that it allow for binding arbitration as a last step.

16. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Government Sector Contract Negotiations in the Public Sector Major disputes in the public sector are handled in a very different manner than they would be in the private sector. Whereas the federal government has a limited role in private labor disputes, it has much more influence in public sector labor issues. If mediation fails, either party may request that the dispute be referred to the Federal Impasse Panel. The Federal Impasse Panel has broad authority to hear testimony and evidence, to make recommendations, and if there is still no agreement, to issue a ruling resolving the parties’ dispute. A decision of the Federal Impasse Panel is final and cannot be appealed to any federal court.

17. Courtesy Ashgate Publishing | www.ashgate.com Aviation Labor Law Labor Policy in the Government Sector The PATCO Strike of 1981 In 1981, the Professional Air Traffic Controllers Organization (PATCO) tested the limits of the FLRA’s power. PATCO was the union representing air traffic controllers employed by the FAA. The FAA and PATCO began negotiations over a new contract in early 1981. By August 3, contract negotiations had broken down and PATCO initiated a strike in direct violation of the Civil Service Reform Act. On the morning of the strike, only 25 percent of the nation’s air traffic controllers reported for duty. The FAA was forced to cancel over 26,000 flights because of insufficient staffing. President Reagan issued a stern warning for PATCO members to return to work within 48 hours or be terminated. The PATCO strike had lasting effects on air traffic control in the US because a majority of the workforce was terminated on a single day.

18. Courtesy Ashgate Publishing | www.ashgate.com Chapter 9 Review Questions 1.What are the differences between mediation and arbitration? 2.Can you think of any conditions under which a public sector union would be authorized to engage in a strike? 3.HYPOTHETICAL: A private sector union disagrees with the way its employer is interpreting the parties’ collective bargaining agreement. The agreement states: “Local union officers shall be given 40 hours of paid off-duty time annually for official union business. Each local shall have a President, Vice President and Treasurer.” In one of the locals, the same individual is both the Vice President and the Treasurer. The union believes this officer is entitled to 80 hours of official time because she holds two positions. The employer believes she is only entitled to 40 hours. Is this a major or minor dispute? 4.HYPOTHETICAL: The FAA and the NATCA are negotiating over the terms of a new collective bargaining agreement. The local NATCA officers at a small airport initiate a strike without seeking approval from the national union office. The FAA files an unfair labor practice claim against both the local and national NATCA officials. You are the attorney for the NATCA’s national office. How would you counsel the national office to respond to the situation?