The Legal Rationale for CHAOS™

The Legal Rationale for CHAOS™


CHAOS™ is, first and foremost, a contract campaign strategy that is designed to provide flight attendants with the economic leverage necessary to reach a consensual labor contract without striking. Since its inception at Alaska Airlines in 1993, the mere "threat" of CHAOS intermittent strike activities has proven invaluable in convincing carriers that negotiations is preferable to economic warfare against AFA Despite the unparalleled success of CHAOS in promoting good faith negotiations, some skeptics remain convinced that CHAOS is illegal. In fact, as discussed below, CHAOS is not only lawful under the Railway Labor Act's ("RLA"), it actually works to promote reconciliation and prevent strikes, which is the primary reason Congress enacted the RLA in 1926.

Statutory Background/Supreme Court Decisions

Unlike any other U.S, labor statute, the RLA commits negotiating parties to a "purposely long and drawn-out" collective bargaining process for creating or altering labor agreements.

Once the process is initiated, the parties are subject to virtually endless "negotiation, mediation, voluntary arbitration and conciliation." Detroit and Toledo Shoreline R.R. v. United Transportation Union, 396 U.S. 142, 152-153 (1969). In return for participating in this almost interminable process, the federal courts have given the parties a virtual "free hand" in fashioning the economic self-help they may choose to employ once the negotiations process has failed. As the Supreme Court has made clear on many occasions, once the parties have exhausted the RLA's bargaining procedures, "the Act is wholly inexplicit as to the scope of allowable self­ help." Trainman, 394 U.S. at 391; Burlington, 481 U.S. at 447-448. As the Supreme Court stated in TransWorld Airlines v. IFFA, 489 U.S. 426,439 (1989) ("IFFA ''.):

[P]arties who have unsuccessfully exhausted the Railway Labor Act's procedures for resolution of major dispute ... [may] employ the full range of whatever peaceful economic power they can muster, so long as its use conflicts with no other obligation imposed by federal law' Trainmen, 394 U.S. at 391-392.

The same result was found in the Burlington case, where the Supreme Court refused to stop a union from using secondary picketing as a legitimate form of self-help once the parties had exhausted their RLA bargaining obligations: In upholding that right, the Court found that the Norris-LaGuardia Act, which prohibits federal courts from issuing injunctions in labor disputes, prevents Judge from imposing their personal notions of acceptable self-help, as the RLA is silent on that issue:

[The carriers] concede, as they must, that the RLA does not contain an express mandate limiting the scope of self-help available to a union once the RLA's major dispute resolution procedures have been exhausted ... [The carriers] read too much into the silence of the Act.  The RLA's silence could just as easily signify an intent to allow the parties to resort to whatever self-help is legally available at the time a dispute arises. Faced with a choice between ambiguity in the RLA and the unambiguous mandate of the Norris-LaGuardia Act, we choose the latter.

Burlington, 481 U.S. at 446-447 (emphasis added).

While acknowledging that the RLA's fundamental purpose is the prevention of disruptions to interstate commerce, the Court found that secondary picketing actually aided that goal by encouraging parties to reach agreement before they are forced to deal with consequences of economic warfare:

Although we agree with petitioners that the primary goal of the RLA is to settle strikes and avoid interruptions to commerce, we see nothing in the RLA to indicate that Congress intended to permit federal courts to enjoin secondary activity as a means toward that end. An injunction does not settle a dispute -- it simply disables one of the parties. Moreover, 'in view of the interests of both parties in avoiding a strike.' Virginian R. Co. v. Railway Employees, 300 US. 515, 552 (1937), the availability of such self-help measures as secondary picketing may increase the effectiveness of the RLA in settling major disputes by creating incentive for the parties to settle prior to exhaustion of the statutory procedures.

Burlington, 481 U.S. at 452; see also, Chicago & N WR. Co. v. Transportation Union, 402 U.S. 570, 597-598 (1971) (BRENNAN, J., dissenting) ("As the statutory machinery nears termination without achieving settlement, the threat of economic self-help and the pressures of informed public opinion create new impetus toward compromise and agreement").

These Supreme Court decisions establish clearly that the threat of economic warfare and disruption is an essential element of the negotiation process. Without the right to strike and engage in economic disruption, employees would have no leverage and carriers would have no incentive to compromise and reach agreement on new terms and conditions of employment.






The Legality of Intermittent Strikes

Consistent with the Trainmen, Burlington, and /FFA, decisions, the two (2) federal courts that have directly addressed the legality of post-release intermittent work stoppages have ruled such activity to be a permissible form of economic self-help under the RLA. Pan Am World Airways v. lnt'l Bhd. OJ Teamsters, 894 F.2d 36 (2d Cir. 1990) ("Pan Am"); Association of Flight Attendants, AFL-C/O v. Alaska Airlines, 847 F.Supp. 832 (W.D. Wash. 1993).

In Pan Am, the union waited over a year after the expiration of the cooling-off period before initiating intermittent work stoppages. The job actions "at various Pan Am facilities consist[ed] primarily of hour-long work stoppages for union employee meetings and assemblies." Pan Am, 894 F.2d at 38.  The court rejected Pan Am's argument by analogy to the National Labor Relations Act ("NLRA"), 29 U.S.C. § 141 et seq., that such intermittent work stoppages are "an impermissible form of self-help under the RLA." Id. at 40. As the court stated:

Pan Am argues that intermittent work stoppages are illegal under the RLA because such stoppages are 'unprotected' activity under the [NLRA], ...            The Supreme Court has emphasized, however, that NLRA principles 'cannot be imported wholesale into the railway labor arena. Even rough analogies must be drawn circumspectly, with due regard for the many differences between the statutory schemes.' One relevant difference between the statutory schemes is that primary enforcement of the NLRA is by specialized agency, the National Labor Relations Board, which is the original source of the rule that intermittent work stoppages are unprotected activity. The range of permissible statutory glosses available to such an agency is greater than that afforded courts, and we therefore decline to embark on a similar course of drawing fine distinctions between forms of self-help under the Railway Labor Act.

In AFA v. Alaska Airlines, Inc., 847 F.Supp. 832 (W.D. Wash. 1993) ("Alaska"), the district court adopted the reasoning of Pan Am and refused to declare AFA's CHAOS program of intermittent strikes unlawful under the RLA:

Similarly, this court finds it would be improvident to import such distinctions from the NLRA into the RLA and thus declines to determine whether the CHAOS work stoppages would be considered protected or unprotected activity under the RLA scheme.

Alaska,847 F.Supp. at 835.

Accordingly, the Alaska court ordered the carrier to stop "indefinitely suspending, discharging, or threatening to discharge flight attendants who participate in CHAOS intermittent work stoppages" and ordered the reinstatement the seventeen flight attendants indefinitely suspended as a result of their participation in an intermittent work stoppage. Alaska 847 F.Supp. at 838.As a direct result of that ruling, Alaska dropped its demand for contract concessions and agreed to a new CBA that provided substantial raises to the Alaska flight attendants.

While there exists only two court decisions directly addressing the legality of intermittent strikes, given the Supreme Court's repeated pronouncements that it will not judge the propriety or scope of a union's self-help activity following the exhaustion of the RLA's mandatory bargaining procedures, the legality of intermittent strikes cannot be doubted. Intermittent strikes are merely another form of economic self-help that "increases the effectiveness of the RLA in settling major disputes by creating incentive for the parties to settle prior to exhaustion of the statutory procedures." Burlington, 481 U.S. at 452. Not only is CHAOS lawful, it is has been supremely effective in convincing carriers to engage in good faith negotiations. Since the Alaska ruling in 1993, AFA has successfully negotiated a collective bargaining agreements at every carrier that has used CHAOS - without having to strike a single flight.


The lawfulness of AFA's CHAOS contract strategy is not a contest between the employee's right to strike and the carrier's ability to maintain its flight operations free of disruption. If that were the standard, then any strike that it is disruptive would be declared unlawful - a result clearly not contemplated by Congress in enacting the RLA. Rather, the measure of CHAOS's legality is its success in avoiding strikes and promoting the negotiation of consensual labor agreements that benefit AFA members. By that measure, CHAOS' legality cannot be questioned. Without the threat of CHAOS, the likelihood of full-blown strikes would undoubtedly increase, and the resolution of contract disputes would diminish - a result contrary to the RLA. CHAOS acts as a lever that restores the negotiations "balance of power" between labor and management that ultimately promotes the resolution of contract disputes.



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