The Good, The Bad And The Ugly

Sep 9, 2002
1,881
57
Self Help

Code

Dated March 2003 ref:
The bankruptcy courts seem generally sympathetic to debtor-employers and grant rejection rather liberally. Furthermore, most courts that grant rejection simply issue orders “approving†the employer’s rejection, without discussing the possibility of protecting post-rejection employee rights. To date, no court has addressed the application of the Railway Labor Act after Section 1113 rejection. The most sensible result appears to entail some sort of bargaining impasse doctrine, leaving the carrier free to implement modifications necessary for the Chapter 11 reorganization, but granting employees the right to strike (and limiting the employer’s discretion to exact further concessions). However, there is no explicit basis for this result in the statute, nor is there judicial precedent directly on point.


Also:
Whatever position the court may take with respect to its remedial rejection powers, the federal labor laws will ultimately govern the parties’ post-rejection relationship. The Bankruptcy Code may briefly usurp certain aspects of the NLRA and RLA during the rejection process, but it does not do so on a permanent basis.34 Thus, even if the Bankruptcy Court’s power were limited to approving a rejection, the parties would not necessarily acquire discretion to engage in unlimited self-help.

There is no precedent to guide the court’s decision regarding the parties’ post-rejection obligations under the RLA. A number of possibilities present themselves. First, the effects of rejection may be similar to the consequences of an amendable date clause – thus compelling the parties to maintain the status quo and exhaust the Section 6 process of negotiations, mediation and “cooling off†before engaging in self-help.35 Second, rejection may bring the parties to an equivalent of the Section 6 impasse, allowing immediate self-help measures. Finally, the rejection process may be considered a total bypass of Section 6, leaving the parties with only their Section 2(First)36 duties to bargain, which would perhaps entail some sort of obligation to maintain the status quo through a specialized impasse doctrine.
 
UVN,

Good information, glad to see that 320 was shown to be wrong once again.

He must be deep in search of a rebuttal.
 
DUH,

No, you are incorrect...see below:

At least one of the Debtors’ labor groups has overtly threatened to strike if the CBAs are rejected. Although a strike could severely impact the Debtors’ efforts to
reorganize, employees subject to the Railway Labor Act, 45 U.S.C. § 151 et seq. (the “RLAâ€￾), such as those in the 1113 Unions, could not lawfully strike in response to a rejection. The principal purpose of Congress in enacting the RLA was to prevent strikes or other interruptions to the nation’s transportation systems.

700UW said:
UVN,

Good information, glad to see that 320 was shown to be wrong once again.

He must be deep in search of a rebuttal.
[post="200432"][/post]​
 
UseYourHead said:
DUH,

No, you are incorrect...see below:

At least one of the Debtors’ labor groups has overtly threatened to strike if the CBAs are rejected. Although a strike could severely impact the Debtors’ efforts to
reorganize, employees subject to the Railway Labor Act, 45 U.S.C. § 151 et seq. (the “RLAâ€), such as those in the 1113 Unions, could not lawfully strike in response to a rejection. The principal purpose of Congress in enacting the RLA was to prevent strikes or other interruptions to the nation’s transportation systems.
[post="200591"][/post]​

DUH learn to read it all see below Try to use the other head

The Right to Strike Preserved

Section 2(First) does not prohibit strikes – it like the other provisions of the RLA, merely intends to prevent them by delaying them. Beyond the Second Circuit, no court has ever even suggested as much (and even that court noted that it was a case of first impression). The only decisions limiting the right to strike either involved bad faith,84 the status quo obligation,85 or simply limited the timing86 or manner of an otherwise valid strike. Thus, beyond Atlantic Coast, nothing in the Railway Labor Act or the resulting jurisprudence precludes employee strikes per se, particularly where employer’s right to self help is also retained (i.e., the Section 6 status quo obligations do not apply).

In fact, the right to strike has never even been challenged in the post-rejection context. For example, the Continental Airlines bankruptcy prompted an immediate strike after the company unilaterally implemented new terms of employment.87 While the Fifth Circuit did conclude that the strike might limit the amount of back pay available under claims for contract rejection, nowhere did the court (or even the employer) suggest that strike itself was prohibited. Similarly, the employees of Eastern Airlines initiated a strike soon after the employer unilaterally modified working conditions.88 That strike – which involved numerous allegations of violence and similar illegal conduct – was expressly described as legal. Indeed, the Court even refused to issue an injunction against the illegal strike activity, because it concluded that the Norris-LaGuardia Act prohibited such an injunction before the employer had made sufficient efforts to resolve the conflict voluntarily.89

The Right to Strike and The Automatic Stay Provisions of the Bankruptcy Code


Thus, it is quite likely that, unless the employer is precluded from unilaterally implementing new terms of employment, the employees will have the right to strike under the RLA. For that reason, it is possible that a carrier would argue that the “automatic stay†provisions of Section 362 of the Bankruptcy Code apply to striking employees. To date, this argument has failed to convince the Courts of Appeals in the NLRA context – and absent a Section 2(First) prohibition, there is no reason to believe that the RLA context is any different.90

Conclusion: The Right to Strike Preserved

When it enacted Section 1113, Congress relieved employers of their Section 6 responsibilities – it provided employers with a shortcut to unilateral implementation. While nothing explicit was directed towards the right to strike, it seems almost absurd to suggest that Congress intended to (1) relieve employers of their responsibilities under an otherwise valid collective bargaining agreement, (2) permit debtors to unilaterally implement terms of employment without first adhering to Section 2(First) and Section 6, while at the same time (3) compelling employees to accept the employer’s proposals and (4) prohibiting the peaceful exercise of their right to strike without resorting to the RLA procedures they were denied in the first place.
 
UseYourHead said:
employees subject to the Railway Labor Act, such as those in the 1113 Unions, could not lawfully strike in response to a rejection.
[post="200591"][/post]​

But, many of them may come down with the flu....................
 
No contract = no protection = ala Trump "your fired".

Oh and the other thing,

The Right to strike eh..?

Can you say Emergency Presidential Order...?

Just curious.
 
A Presidential order can only be done at the end of a 30 day cooling off period in traditional Section 6 Negotiations.

In a contract abrogation it does not apply, niether party are in traditional bargaining.

Guess you should learn the RLA, because the RLA says you cant make unilateral changes either, as you can see the RLA does not apply in this matter.

Guess Labor Law is not your forte?
 
You're dreaming if you think the president would get involved in this. In fact, his buddies at SWA, AA and CO are just salivating waiting for this to happen. UAIRQ won't even be a blip on the radar. I happen to think that it may happen sooner rather than later, in an effort not to inconvenience too many holiday travellers. It'll either be next week or mid January, once the numbers are crunched from the fourth quarter. I also think that the unions have been backed into a corner, and that they virtually have to stand their ground, or the end of collective bargaining in the US is at hand. Oh, and if the company by some fluke happens to make it into February, They'll be back for more. It's worked twice now, why quit?
 
Heh, yeah, like this has anything to do with established labor law. This is unexplored legal frontier sport, and you know it.

There is no "cooling off period", so it can be argued that there is no need to wait for the order to take place either.

What happens at Airways will set the pace for the entire industry, thus the reason Bush will support management and not labor. It is called precedent. Care about Airways, no. Care about all legacies lowering costs, yeah he does.

Anyways, what does this matter? It is not like it will get that far anyways.

Sell off, spin off, or shut down (your part), the company will move on.
 
Rico.....Get a grip!!!! Do you have your "golden parachute"???? We can't just respond to "ROLL OVER"..."PLAY DEAD"....Remember....to train the dog, you must be smarter than the DOG!!!!! HAPPY FLYING!!!!! :D :up: :up: