(The following article by James Pilcher was posted on the Cincinnati Enquirer website on April 9.)
CINCINNATI — The question for many local travelers recently has been: Will the Comair flight attendants or the Delta Air Lines pilots go on strike this month?
But as the labor disputes at both airlines have progressed, another key question has arisen: Can those workers legally walk out?
The answer is as murky as trying to predict the outcome of the concession talks between both airlines and their respective unions.
The situation is setting such new legal ground that many experts believe both cases could wind up in a protracted court fight. The cases could eventually wind up in front of the U.S. Supreme Court, experts say.
“There is just no good answer to this. The law provides no certain answer,” said Rick Bales, a labor law expert and interim dean of the Chase College of Law at Northern Kentucky University. “There is a huge conflict between the law that governs labor law with the railroads and airlines and bankruptcy law.
“There is no true precedent. This is a completely unproven case.”
Comair is seeking $8.9 million annually in concessions from its nearly 1,000-member flight attendant union. Last month, the Erlanger-based airline asked the federal bankruptcy judge overseeing the Chapter 11 restructuring of Comair and parent Delta to reject the contract with the local branch of the International Brotherhood of Teamsters.
The judge has until Monday to decide, and the union has warned a strike is likely if the contract us rejected.
Delta is hoping to negate its contract with its 5,800-member pilot union, which includes about 500 members based at the Cincinnati/Northern Kentucky International Airport – Delta’s second-largest hub.
In December, the Atlanta-based carrier asked the same court to void that deal and allow management to impose more than $300 million annually in cuts. The case is in front of an independent three-man arbitration panel, which has until April 15 to decide; and the Air Line Pilots Association has promised to strike if its contract is thrown out.
“For a company to do this is like grabbing the hammer of Thor,” said Charles Craver, a labor law professor at George Washington University. “But both sides have to tread very carefully here, because you never know what you’re going to get with the courts.
“This is a very significant issue and conflict between two sets of laws – and it could wind up in the hands” of the U.S. Supreme Court.
SPECIAL LAW AT ISSUE
The question is whether unions can resort to strikes or other job actions if their contracts have been thrown out under the Railway Labor Act, the 1934 law that was crafted to cover labor relations in the railroad and airline industries.
The law has different bargaining provisions from other labor laws, primarily because of the nation’s reliance on transportation as well as the fact that the work forces in both industries are scattered across the country.
The Railway Labor Act has specific step-by-step procedures both parties must follow before being “released” to self-help (such as a strike by the union and imposition of new work rules and wages by management). Those include 30-day “cooling-off” periods, the involvement of the National Mediation Board (an independent government agency that oversees such labor relations) and even the possible involvement of the president.
Yet Section 1113 (c) of the federal bankruptcy code allows companies to reject labor deals under Chapter 11 protection. The code was changed in 1984 to require court approval before such a rejection, a direct result of a situation that year at Continental Airlines. The carrier, then led by Frank Lorenzo, was able to use bankruptcy law to void labor deals and then get approval from the court.
Since the law has been changed, however, no union has gone on strike after having a contract rejected in bankruptcy court. United Airlines used an 1113 (c) motion to get cuts from its workers without a strike, while Northwest Airlines recently struck a tentative deal with its pilots with the same process.
In the Northwest case, the judge overseeing the filing extended a possible ruling deadline twice and then didn’t rule at all – and the two sides worked out their own deal. “What you have is a situation where you have a very arcane law against a relatively new one, and no one has tested it,” Craver said.
So whether a strike is legal in a bankruptcy is unknown, the sides in the respective disputes certainly have their own diametrically opposed opinions on the subject.
OPPOSITE VIEWS ON LEGALITY
Delta spokesman Bruce Hicks said that any labor actions would be illegal, saying the steps in the Railway Labor Act must be followed before the pilots could strike, even though the company was able to bypass that law by using bankruptcy law to reject the deal in the first place.
He also says that a ruling in the company’s favor does not automatically mean that the existing deal would be thrown out and new terms imposed immediately.
“It would be the company’s decision when to implement our proposals,” said Hicks, who indicated that the company could be open to holding off on such a rejection.
“We think a negotiated agreement is the right answer and that is our preference and what we would focus on.”
Hicks added that “we would be prepared to seek legal remedies as necessary,” to prevent a strike, meaning further court action, possibly in federal court in Atlanta.
But Lee Moak, chairman of the pilot union, disagrees strongly on both legal points, saying that the union can strike, and will do so if the contract is rejected.
Moak also says that the panel’s ruling is final and binding, meaning that the new terms would go into effect immediately and it would not be up to the company when those terms would be imposed. “We will not negotiate any further after the contract is rejected, and we will not work without a contract,” he said. “We stand ready to strike.”
William Wilder, the lawyer representing the Comair flight attendants union, also says a strike would be legal, primarily because the company would first be breaking the timeline set up by the Railway Labor Act.
He also says that legal precedents show partial strikes are protected, although he agrees with Delta’s Hicks in that it would be up to the company to choose when to impose the new terms. “Their argument does not have a lot of credibility, and I doubt they would test it,” Wilder said.
Comair spokeswoman Kate Moser acknowledges that the situation is “uncertain because of the lack of legal precedent.”
“However, Comair believes that any work action would be illegal,” she said, adding that the company is prepared to take “the legal and operational measures necessary to protect our passengers.”
COMAIR, ATTENDANTS SPLIT
If Comair wins, Connie Slayback, president of Teamsters Local 513, acknowledged the company could impose its terms whenever it wished. “We expect the company to react negatively if the judge finds in their favor,” Slayback said. “What form that takes, we don’t know.”
She reaffirmed the union’s right to strike if the contract is voided and added: “We know this has never been tested, but after all we are the Teamsters.”
So both cases could wind up back in court, with the airlines asking for injunctions or temporary restraining orders in both federal district court and federal bankruptcy court barring any labor action, says NKU’s Bales.
“Every time we’ve come close to having this tested, the unions have backed off, but who knows what will happen this time,” Bales said. “We really could have motions in four different courts – two per airline – at the same time.”