Risks Rise For Mechanics Union As Fight With Southwest Airlines Goes To Federal Court

Southwest Airlines’ beloved cofounder and former chairman Herb Kelleher has been in his grave for barely two months now, but he surely is spinning like a top within it over the acrimony and dysfunction now spilling out of what he called the Southwest family.

Last week flight cancellations and delays rose by a factor of five or six because of Southwest mechanics’ newly exercised meticulousness when it comes to finding and fixing – ever-so-slowly – mechanical, structural and electronic issues discovered on many of the airline’s planes. In response, the Dallas-based carrier filed suit against the Aircraft Mechanics Fraternal Association for conducting, allegedly, an illegal job action against the airline.

It’s not the first time these groups have gone to court against one another, or even the first time that Southwest and its mechanics (who were represented by the Teamsters Union until AMFA won a representation election in 2012) have resorted to the law in their disputes. But the current, increasingly ugly Southwest-AMFA showdown is the first one to actually impact a large number of Southwest flights and hundreds of thousands of travelers a day. By the end of last week as many as 115 Southwest 737s were out of service because AMFA mechanics had declared them unfit to fly for various mechanical reasons. But the normal daily average of planes removed from Southwest service for mechanical reasons is only about 20. So, assuming an average of 150 passengers per flight, and an average of six flights a day per plane, that’s about 85,500 additional travelers per day whose flights are being cancelled. Tens of thousands of additional travelers also are made subject to potentially late, more crowded, rescheduled or otherwise disrupted flights. That’s what happens when nearly 15% of an airline’s fleet unexpectedly is being grounded, as is the case with Southwest’s 770-plane fleet.

It’s a safe bet that Kelleher, like current CEO Gary Kelly, would have filed suit against AMFA were he still alive and running the airline amidst such circumstances. A lawyer by training, and a very tenacious and aggressive one by reputation, he would not have stood by idly while a union thumbed its nose at management the way AMFA and its 2,500 or so members at Southwest are doing with their current, alleged abuse of their federal authority to keep planes on the ground for safety reasons.

But it’s also hard to imagine Kelleher ever letting a contract dispute like the one behind this public spat get this far. Though he was a traditional Democrat with strong pro-labor views, Kelleher was not shy about using his huge personality, his wisdom and his “Godfather”-like stature within Southwest’s famous corporate culture to bully labor leaders and management’s labor negotiators into a deal. In numerous tough talks with labor unions over the years Kelleher, who rarely actually involved himself personally in such talks, demonstrated uncanny ability at keeping the carrier’s labor costs low despite paying Southwest’s heavily unionized workers (the most heavily unionized by percentage in the industry) industry-leading wages. He mostly did that by convincing union leaders and their members to stay away from the kind of employment bloat and heavily rules-laden agreements that weigh down conventional airlines. Thus Southwest employees either worked more hours or accepted more outsourcing of certain work than most of their industry counterparts, but in return they got top pay. Now, however, leaders at AMFA, a craft union with a history of overplaying its hand at both Northwest Airlines and United Airlines, don’t want to give management any more flexibility to contract out more maintenance work to third parties. But they still insist on retaining their mechanics’ status as the best-paid in the industry. In short, after six years of frustrating contract talks, AMFA appears to be spoiling for a fight while the airline’s management shows no sign of backing down. Kelly says in public all the right things about how wonderful Southwest’s employees – especially its mechanics – are. But one tier down in the corporate hierarchy management’s rhetoric and actions are uncharacteristically tough-sounding.

Alas, there’s no Kelleher around anymore who can use his personal charm and considerable will to push the parties to a deal before they do real, lasting damage to the airline and, quite possibly, to themselves.

No one, that is, but Senior Federal District Judge Joe Fish. He’s the Dallas-based jurist appointed by President Ronald Reagan way back in 1983 who will handle the suit filed by the airline against AMFA and its leaders. And what he may lack, by comparison with Kelleher, in charm and personal willpower Fish more than makes up for with the intelligence, experience, savvy and awesome power of a Senior Judge with 36 years on the federal bench.

In its suit management alleges that the AMFA mechanics are abusing their federal safety officers’ authority to gain an unfair advantage in ongoing contract talks. Quickly after the suit was filed, a number of supposed experts commented that Southwest would find it very difficult, if not impossible to win its case. But history, made in the same Dallas Federal Courthouse in which Southwest Airlines vs. AMFA would be argued (if it gets that far), actually tilts toward the opposite conclusion: AMFA is in deep trouble.

Twenty years ago American Airlines, based in neighboring Fort Worth, sued its pilots union, the Allied Pilots Association, for conducting an illegal “sickout” as a way of pressuring the airline to agree to labor’s contract demands. Federal District Judge Joe Kendall listened to hours of emotional testimony and arguments in his overflowing courtroom before ruling against the pilots. He then slapped the union and its two top officers personally with $45 million in fines for ignoring his order and issuing thinly coded instructions to union members to continue the sickout despite the judge’s initial ruling.

The early speculation that AMFA should win this legal battle rather easily may have been driven by the powerful position most unions are in under the National Labor Relations Act. That law philosophically works to empower unions to use “self-help” tactics up to and including strikes to pressure management to meeting labor’s demands. Airline industry labor relations, however, are not subject to the NLRA but, rather to the Railway Labor Act, which philosophically works in the opposite direction. Based on the assumption that strikes and other self-help actions in the rail industry – and since the 1930s in the airline industry, too – can quickly and dramatically disrupt Americans’ lives and the nation’s overall economy, the RLA’s procedures and rules greatly limit labor’s self-help options. Indeed, RLA contracts never expire, but rather “become open” for re-negotiation while both sides maintain the status quo during those talks – however long they last.

Eventually, after a long process that includes slow-moving federal mediation, it is possible for airline unions to earn the right to strike, but only after the National Mediation Board, which enforces the RLA, declares that an impasse has been reached. Even then, Presidents have the power to halt RLA strikes, and historically they’ve been quick to use that power. Wildcat strikes, meanwhile, are flat-out illegal. So are other self-help tactics like sick-outs, work slow-downs, or so-called “work-to-rule” actions in which employees take the maximum time allowed under their contracts to perform tasks that normally are done much faster. Taking such actions before cleared to do so by the NMB can land unions and their leaders in very hot water in front of a Federal Judge, as the Allied Pilots’ leaders learned the hard way.

Kendall, who left the bench and returned to private law practice in 2002, says AMFA and its leaders are in danger if or when they go before Judge Fish.

“He probably will look at the raw numbers of [airplane] groundings vis-à-vis the historical numbers for groundings at Southwest, and when did those numbers spike in relation to the cessation of the last round of labor talks,” Kendall explained. “The judge will look to see what’s really going on.”

That, in a nutshell, is what Kendall did in 1999 when he ruled that the unprecedented number of pilots calling in sick at American was way, way beyond any historical norms and came in response to thinly-veiled, coded messages to union leaders. Those messages, from multiple union leaders, had begun going out immediately after American officials made it clear that management would not meet certain union demands. Other arguments brought up in hearings before Kendall – including the pilots’ responsibility under Federal Aviation Rules to not fly when they are, by their own determination, not well – were over-ridden in Kendall’s thought process when the number of pilots calling in sick showed a rapid, radical and highly implausible departure from historical norms.

But, the Southwest vs. AMFA case does have an important twist to it that did not exist in the American vs. Allied Pilots case 20 years ago, Kendall added.

“This involves a decision on whether planes should or should not be grounded for mechanical reasons. Judge Fish will have to carefully consider what these planes are being grounded for,” he explained.

“Is it because a tray table in row 12 is malfunctioning? Or is there something wrong with the engines, or fan blades? We certainly don’t want another woman sucked half way out of a window because a fan blade blew off and broke one of the windows,” Kendall added.

That was a reference to the April 2018 event in which the engine of a Southwest Boeing 737 exploded in flight, causing a fan blade to tear through the engine’s cowling and crack open a passenger window. A 43-year-old mother and bank executive from Albuquerque who was sitting at that location was partially sucked out of the plane by the force of the resulting cabin decompression. Despite efforts by fellow passengers and flight attendants to pull her back in and render medical aid, the woman died. She is the only fatality from a safety incident on Southwest in its nearly 50 years of operations.

“It’s hard [for a judge] to tell a mechanic what does and doesn’t need to be fixed. But the current numbers vs. the historical numbers will tell you whether or not something is being done for improper reasons related to contract negotiations. The groundings [in the Southwest case] have quadrupled in just over a week’s time, from what I’ve read. That’s empirical evidence.

“Yet while we can all have our suspicions about what’s really going on here, it remains to be seen what the proof [for what’s causing the mechanical groundings] is,” Kendall added. “That’s why Judge Fish will have a more complex decision than the one I faced. It’s a much trickier case for him because we’re talking about the mechanical reliability of passenger planes that will carry 150 or more people at a time.”

The economic stakes are large as well. Labor self-help actions against airlines are designed to inflict both direct financial and public relations pain on airlines. When planes are grounded for mechanical reasons – legitimate or not – the airline forgoes the revenue that those planes would have brought in for however long they’re out of service. The airline’s costs also rise because it has to expend more time and money on repairing the plane and even more re-accommodating and/or compensating travelers whose trips get disrupted. Plus, more pilots and flight attendants sometimes have to be brought in to replace crews who reach their duty time limits while waiting for their plane to get fixed.

Beyond that, an airline subject to labor-caused schedule disruptions typically sees passengers “book away.” That is, they choose to fly on other airlines to avoid becoming victims of labor’s self-help actions. Such airlines also can suffer some degree or another of reputation damage that could linger long after the labor dispute is settled.

Kendall noted the irony that he now finds himself in the position of booking away from Southwest even though he is member of its Rapid Rewards frequent flyer program and lives less than 10 minutes from Southwest’s home airport, Dallas Love Field. But when he books a business trip to Washington, D.C. later this month, the former judge says he already has determined to fly on American out of Dallas-Fort Worth International Airport, a 30-minute longer drive from his home.

“I’m like a lot of other people. I don’t want to get caught up in labor turbulence and risk having my flight cancelled,” he said.