Legal Foundations for Processing Pilot Labor Grievances
Advocacy in Action, Part 2
By Jeff Loesel, Manager, Representation Department, and John Perkinson, Senior Staff Writer
Editor’s note: Last year, ALPA’s Executive Council was tasked with assessing the value of creating an Association-wide resource to observe dispute-resolution practices among the union’s pilot groups. After careful consideration, the President’s Grievance Committee was established to offer guidance, provide resources, and promote best practices. Part 2 of this series of Air Line Pilot articles examines the legal foundations for the grievance process in addressing potential contract violations, unauthorized changes to past practices, and the defense of pilots confronting disciplinary charges. Read Part 1 here.
Establishing laws that legitimize labor as the official voice of workers has been a long and arduous process, often requiring governments to take a trial-and-error approach. While the roots of North American trade unionism can be traced back to the 18th century, it took another 100 years for the U.S. federal government to recognize the need to intercede in labor disputes—particularly those in the transportation industry—using fair and reasonable means.
Prior disagreements between managements and employees sometimes turned violent. The Baltimore and Ohio Railroad slashed worker pay on three different occasions during 1877. Angry, fed up, and having no other way to effectively express their displeasure, the workers engaged in extensive protesting. The government, rather than interceding to promote compromise, responded at several locations by deploying federal troops.
Congress later enacted a series of experimental laws including the Arbitration Act of 1888, the Erdman Act of 1898, and the Newland Labor Act of 1913. However, none of this legislation effectively addressed the need to resolve employer/employee differences. It wasn’t until 1926 that the Railway Labor Act (RLA) was passed, offering a mechanism to tackle grievances for transportation workers. This law was expanded 10 years later to cover airline employees, including pilots.
Flying the Line, which was written by George Hopkins and documents ALPA’s early history, notes, “The inclusion of airline pilots under this law, with its machinery of conciliation and adjustment boards to hear grievances…was probably [first ALPA President Dave] Behncke’s most longstanding achievement. Airline pilots today still benefit directly from the provisions of this act.”
The RLA is administered by the National Mediation Board (NMB), an independent federal agency, and provides a means for U.S. transportation labor and management to settle differences. Section 204 of the act observes, “Disputes between employees or a group of employees and a carrier or carriers by air growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions…shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred…to an appropriate adjustment board.”
Labour Disputes in Canada
The working environment in Canada was no less tumultuous, as federal and territorial governments struggled to give employees a legal foundation for organizing and a process to address labour disputes. The Conciliation Act of 1900 established a federal Department of Labour, and the Industrial Disputes Investigation Act of 1907 introduced compulsory investigations for management-worker disagreements. However, many felt the specifics of the latter legislation weren’t completely impartial or fair in their application.
World War II prompted the suspension of much of the country’s labour legislation. However, the Wartime Labour Relations Regulations of 1944 reaffirmed worker protections and introduced a labour relations board to address conflicts.
While federal and territorial labour policies were consolidated within the Industrial Relations and Disputes Investigation Act of 1948, it wasn’t until 1967 that Parliament passed the Canada Labour Code (CBC), giving unions a broader standing. Part 1 of the CBC addresses dispute resolutions and outlines the role of the Labour Relations Board to interpret the code and to investigate allegations of unfair practices.
The CBC states, “Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration, or alleged contravention.”
Grievance Practices
In addition to contract violations or changes in past practices, grievances may be filed in cases regarding dubious employee disciplinary cases. These can include oral or written warnings/reprimands; suspensions; demotions; discharge; or a loss of benefits, including the right to use pass privileges. Similarly, grievance categories under the CBC address discipline, demotion, harassment, classification disputes, and the denial of benefits.
The elements of a grievance consist of the merits of the case, procedural considerations, and the remedy to be pursued. Merits examine the underlying conflict. For example, did the airline have just cause to discipline the employee or did management violate the contract by doing so?
Procedural considerations assess whether the case was properly administered in accordance with contract requirements, and the remedy looks at the corrective action to be taken if the contract infraction is established. When determining an appropriate remedy, the union must identify the specific damages as well as those who were impacted—whether it’s a flight deck crew or the entire pilot group. Depending upon the nature and facts of the case, a retroactive or a prospective remedy may be in order.
In Canada, the intent is similar, but the terminology varies. The CBC also identifies a policy grievance, which according to the Canadian Labour Congress is a complaint by the union that “an action of management (or its failure or refusal to act) is a violation of the agreement that could affect all who are covered by the agreement.” For example, Crew Scheduling may randomly assign an open trip to a pilot, prompting ALPA to file a grievance to establish that seniority should have been considered in this circumstance.
Similarly, the Canadian Labour Congress identifies a union grievance as a “dispute arising directly between the parties to the collective agreement.” For example, the union may file a grievance on its own behalf because management failed to apply dues checkoff rules in not deducting union dues from pilots’ pay, as outlined in the collective agreement. The Canadian Labour Congress observes, “In these cases, the union grievance is one in which the union considers its rights to have been violated and not just the rights of individuals in the local union.”
Beast of Burden
At the heart of each grievance is the burden of proof, which—depending upon the nature of the grievance—identifies the party that must make its case. In disciplinary actions, management has the burden of proof and must demonstrate that the punishment exacted was for “just cause.”
Two elements are required to satisfy the burden-of-proof standard in a disciplinary case: Management must prove that the pilot committed an act or failed to execute a duty based on an airline rule or policy. Second, management must generally present “clear and convincing” evidence that the pilot engaged in the alleged misconduct and that the discipline imposed was appropriate to the violation.
In the case of a contract infraction, ALPA has the burden of proof and must show that management’s action violated the terms of the labor agreement. Again, the union must sufficiently connect the proposed remedy to the impact of the contract breach. Unlike in civil litigation, arbitrators aren’t generally empowered to issue punitive remedies against managements for contract violations, though some arbitrators will make exceptions in cases of significant management misconduct.
Generally speaking, the facts presented in these examples aren’t held to the standard of proof beyond a reasonable doubt. That requirement is only applicable in criminal cases. However, ALPA must demonstrate a preponderance of evidence by establishing that the union’s claim is more likely than not.
Grievance cases that aren’t resolved to the satisfaction of the union at the initial stages of the process can be referred to a system board of adjustment, in which a neutral arbitrator (either sitting alone or with one or two board members provided by each party) has the authority to offer a final and binding ruling on the issue.
Likewise, the CBC outlines a similar process in which a case can be referred to an impartial arbitrator or arbitration board, whose decision is final and binding for both parties. In both the United States and Canada, there are alternatives to system boards and arbitration, but these are the traditional venues for pursuing final grievance decision-making.
Unrepresented workers, whose terms of employment aren’t clearly defined by a collective bargaining agreement, don’t have the right to file a grievance. However, they may be entitled to exercise certain legal options.
