Thursday, February 8, 2007

Comair Pilots Lose Big

Comair_1 A federal judge yesterday ruled that Comair could unilaterally impose $15.8 million in wage concessions on its pilots, and simultaneously issued an injunction forbidding the pilots' union from striking.  Comair says it will impose the cuts this weekend.  The pilots' union says it will abide by the judge's order, but it wouldn't be surprised if many of its pilots simply decided to quit.

As I said last year when the Northwest Airlines flight attendants were threatening to strike, I think the court got the law wrong.  Comair's argument, which the court adopted, is that Section 1113 of the bankruptcy code gives companies the right to nullify collective bargaining agreements through bankruptcy proceedings, and gives courts the authority to issue no-strike injunctions to facillitate the emergence from bankruptcy.  But an earlier statute -- the Norris-LaGuardia Act -- prohibits federal courts from issuing labor injunctions, and there is nothing in the history of the Bankruptcy Act indicating that Congress intended to override the Norris-LaGuardia Act.

The judge's decision is also wrong as a matter of policy.  The only bargaining power unions have is the power to (threaten a) strike. If that’s taken away, then the clock on American labor relations is turned back to the late 1800s and early 1900s, when federal courts routinely issued injunctions prohibiting strikes, unions struck anyway because they had nothing left to lose, and the result often was at best major disruptions in production and at worst blood in the streets.

For more on yesterday's ruling and the parties' reaction to it, see Alexander Coolidge's article Comair Pilots Lose Key Round in today's Cincinnati Enquirer.


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The sense of deja vu is overwhelming.

The repeated problems in the bankruptcy/labor interface stem in large part from the specialized nature of the bankruptcy courts. Their job is to get the bankrupt company back to profitability, so naturally they discount other values and forbid things like strikes that would get in the way of that goal. Apart from the problems this ruling presents for labor law jurisprudence and policy, it presents an object lesson about the blinders specialists wear --- even judicial specialists.

Posted by: Dennis Nolan | Feb 8, 2007 7:53:40 AM

I agree with Professor Bales. While I have not studied these recent decisions closely, I do not see how they may persuasively be squared with the rather emphatic langauge of N-R or the Supreme Court's relatively recent application of N-R to the Railway Labor Act in a secondary boycott context in Burlington Northern, 481 US 429 (1987).

Posted by: Mike Duff | Feb 8, 2007 9:09:41 AM

Thanks for uncovering this fact Professor.

For the life of me I can't understand the employees themselves, in this case the Comair pilots.

On another blog we've been having a lively discussion about the air traffic controller's strike of 1981 - what worked as well as what did not.

Whether you agree with them or not, that union realized that the only option, the only true leverage they could exert again their employer - legal or not - would be withholding of their services. That has always been the one useful tactic labor never lost. But it does seem certain that in many cases some unions have given it away.

And now, the Comair pilots have agreed with the judge's ruling, but may quit instead.

What kind of job is that going to be? And what value is the Air Line Pilots Association when that union can do essentially nothing for the members of the bargaining unit except tell them to take it.

That value of a union is what made people so hot under the collar in our recent discussion, especially when so many seem to think that letting management beat them up is part of the deal.

I don't happen to agree.

And I am certainly glad to see this note bout the Norris-LaGuardia Act.

The question is how to convince the union not to simply give up.

Posted by: Rob Mark | Feb 8, 2007 12:38:37 PM

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