Once again American Airlines has been forced, by a pilot "sick out," to cancel nearly half of its 2,250 flights today (Friday, Feb. 8th). The media reported "near riots'' in Miami and New York after AMR shut down ticket windows at those airports. An estimated 450,000 passengers have been affected by the refusal of one quarter of AMR pilots to report to work.
AMR pilots are disgruntled over pay disparities that have resulted from AMR's purchase of Reno Air in December. AMR wants to merge the Reno pilots into the AMR pilots seniority list over 18 months, saying the training/integration process will require that much time.
With righteous indignation the American pilots, who are represented by the Allied Pilots Association (APA), have justified their "job action" on the grounds that AMR management has violated their "scope clause." In laymen's terms that means the labor contract, which defines the compensation and working conditions of AMR pilots, requires that only AMR pilots can fly AMR airplanes. According to one AMR pilot, in a letter to AMR management:
"The law (the Railway Labor Act) requires you to abide by the labor agreements you sign. The 1997 contract, signed by you, requires you to use AA pilots to fly AMR airplanes, unless APA grants you an exception. Non-AA pilots are flying AMR airplanes at Reno Air. APA has not granted you an exception. Therefore, you are violating the law."
The problem with that argument is that it starts with the assumptions:
In my view, the validity of those assumptions is open to challenge:
To claim one's contractual rights are being violated, is one thing. To prove it in a court of law is quite another. I view AMR's arguments, for integrating Reno Air into AMR's system over a period of 18 months, to be reasonable and necessary. I seriously doubt there is a scope violation.
If the contractual rights of either party is being violated, the only lawful way to enforce those rights, in our system of Constitutional jurisprudence, is to seek the appropriate remedy in the proper court, or extensions of the courts (such as boards of arbitration which are provided for in many contracts). Extralegal remedies, particularly when they inflict economic and emotional damage on innocent third parties, are unlawful and the perpetrators become mere outlaws.
In the law of contracts, duress, coercion or constructive force (fraud) is always grounds to void the contract, i.e., if one was forced against his will to enter into the contract, then that contract is not valid. To be valid, all parties must have entered into any contract, freely and without duress or deception. A valid contract is an agreement for voluntary exchange. It is a concept that flows from centuries of English common law and the freedom of association guaranteed by the First Amendment to the U.S. Constitution.
Unfortunately, Congress saw fit to abrogate the First Amendment right to freedom of speech and association when it created labor laws now known as the Labor Management Relations Act (LMRA -- consisting of the 1935 Wagner Act and subsequent amendments such as the 1947 Taft-Hartley Act) and the Railway Labor Act (RLA -- consisting of the 1926 Railway Labor Act and the 1951 amendment).
The RLA regulates unionism in railroads and airlines and the LMRA covers unionism in all other private sectors, plus public employee unions provided for in state laws. Both the RLA and the LMRA contain the same type of provisions that constitute violations of the First Amendment's guarantee of the right to free speech and association.
Unions are private organizations. And, unlike any other private organizations, they are permitted by the above labor laws to force employers to enter into contracts without those contracts becoming invalid. Unions are the only private organizations that are permitted to exercise their full panoply of First Amendment rights while, at the same time, they are granted the power to proscribe those same rights of the other parties (employers and non-union workers) to their coerced contracts.
In short, the unions' right to bargain freely was gained at the expense of the rights supposedly guaranteed to all, in the First and Fourteenth Amendments (free speech, free association and equal protection of the laws). If you don't believe that, then I suggest you review the following Supreme Court decisions:
Fiberboard Paper Products Corp. v. NLRB [379 US 203 (1964)]:
This decision not only forces the employer to bargain with some employees (union members), at the expense of other non-union workers in the labor pool, but it also denies the employer the right to contract out for maintenance work, even if the union contract has expired. A contract that covered only three years, according to the Supreme Court, gives the union the power to force the employer to bargain over contracting-out-rights, even though the union has no current contract with that employer.
Exchange Parts Co. v. NLRB [375 US 405 (1964)]:
This decision set aside the results of an organizing election (they voted against union representation) because the employer exercised its First Amendment right to free speech, during the election campaign, by announcing changes of policy that would improve both pay and fringe benefits for its employees. The Court recognized First Amendment rights were a legitimate issue, but nevertheless ruled that peaceful labor relations was more important.
[Editor's translation: The Constitution is the supreme law of the land; the rights guaranteed in the Constitution shall prevail over any conflicting laws unless the reason for that law is to appease groups who threaten violence to persons and property if their demands are not met. Why does this "reasoning" remind me of Neville Chamberlain?]
Gissel Packing Co., Inc., v. NLRB [395 US 575 (1969)]:
The Court again set aside the results of an organizing election (they voted against union representation) and forced the employer to recognize the union as the exclusive bargaining agent despite the fact that the union lost the election.
The reason? Because the employer had dared to exercise his First Amendment right by stating that the company was financially weak and any strike might force a plant closing and the loss of all jobs. Further, the employer pointed out that some employees might have a hard time finding other jobs owing to their age and low education. The Court classified such statements as "threats of reprisal" that were unprotected by the First Amendment.
[Editor's note: I have reams of union publications that both threaten and demand reprisals against those employers and workers that failed to capitulate to union demands. When those workers have sued the unions for everything from harassment, violence on and off the job, and intentional infliction of emotional distress, they usually lose because "that is something unions do" and because "Congress intended unions to be strong." So much for "equal protection of the laws."]
I once had a history professor that made the astute observation that "history is what the historians say it is." I would paraphrase that with "the Constitution is what the U.S. Supreme Court says it is." Since the 1803 case of Marbury v. Madison, the Supreme Court has had the final say on what violates the guarantees of the Constitution.
As late as 1936, the Court rejected labor laws that infringed on the guarantees of the First Amendment, when it threw out the Guffey Coal Act, in Carter v. Carter [298 US 238 (1936)], by a 9 to 0 vote, because it contained an exclusive representation requirement. But only one year later, it voted the Wagner Act constitutional, by a 5 to 4 decision, in the case of Jones and Laughlin Steel Corp. v. NLRB [301 US 1 (1937)], even though it too, contained an exclusive representation provision. Why? Because that decision was made after Roosevelt announced his plan to "pack the Supreme Court" with additional judges so that they would make decisions to his liking. In fact, the oral arguments in that case, were made only four days after FDR announced his plan. That is why historians refer to that decision as the "switch in time that saved nine." In short, 5 judges were persuaded, by FDR's court-packing threat, to substitute political reasoning for constitutional reasoning.
It is my view that our labor laws violate our Constitutional guarantees of free speech and association and of the right to equal protection of the laws. Further, they give private organizations (unions) the power to tax and to destroy the jobs of any workers who refuse to pay that tax. They do so with the justification that "labor peace" is more important than Constitutional guarantees and the rule of law. Is it any wonder that some AMR pilots have chosen to become outlaws? Is it any wonder those pilots aren't worried about having to pay tort damages to the many thousands who have suffered financial injuries as a result of their extralegal job action?
The problem is systemic. It cannot be repaired by tinkering with existing labor laws. They should be repealed outright and replaced with a wholly new labor law that contains provisions similar to some of those in the Employment Contracts Act (ECA), passed in New Zealand in 1991. The ECA has totally abolished compulsory unionism and repealed the special privileges that unions had prior to the passage of that Act. New Zealand workers are now free to choose their own representatives. They can negotiate an individual employment contract with the employer or they can choose to join into a collective contract if the employer has one. Further, and most importantly, they can choose to represent themselves or to be represented by an agent, other than a labor union. Unions can only represent workers who freely choose them as their representatives. No more forced representation.
If we had such a law in this country, combined with tort liability for everyone who causes financial injury by their extralegal actions, do you think the AMR pilots would have engaged in their "sick out?"
THE SAFETY LINK:
This website is dedicated to the discussion of issues and policies that are germane to airline safety. It might seem, therefore, that this editorial is departing from that policy. Yet, there is a link to safety, by what has been discussed above. It is that the inordinate power of unions, granted by our unconstitutional labor laws can, at times, work against airline safety. In future postings I will discuss at least two crashes that I believe would not have happened if union hostility and misconduct had not been present. I will also discuss other close calls, which also would not have happened, except for the presence of union power and hostility. The unconstitutional power of unions, that is discussed above can, and sometimes does, overflow into the realm of safe operational procedures with negative consequences (See, for example, Judge Bertelsman's order to ALPA and Comair pilots to cease unlawful conduct that could have a negative impact on airline safety).
That is why I think it is
vitally important to consider repealing our present labor laws.
[Editor's note: I am deeply indebted to Charles W. Baird, Professor of Economics and Director of the Smith Center for Private Enterprise Studies California State University, Hayward. His voluminous articles on labor history and law have proved to be an invaluable resource during my research for this editorial. I recommend his web site (http://www.cbe.csueastbay.edu/~sbesc/) to all those interested in advancing free markets and individual freedom.]
Robert J. Boser
The Editor of this Web Page, now retired, was an airline pilot for
33 years and holds 6 specific Captain's type-ratings on Boeing Jet Airliners
including the Boeing 747-400.