Vaccines at 31,000 feet: Collective Bargaining, Labor Disputes, and Southwest Airlines’ Vaccine Mandate

Southwest Airlines (“SWA”), the low-cost carrier renowned for its forward-thinking workplace culture of levity and employee empowerment, has found itself in a bitter labor standoff over a recently-decreed edict that its employees—some 56,000 people—must be vaccinated against COVID-19 by December 8, 2021, barring any religious or medical exemptions.¹Leslie Josephs, Southwest Airlines Says Staff Must Be Vaccinated Against Covid by Dec. 8 Under Federal Rules, CNBC (Oct. 4, 2021), https://perma.cc/GBJ7-XX2B. The requirement was imposed pursuant to President Biden’s August 2021 executive order mandating employees of companies holding contracts with the U.S. government to be vaccinated against COVID-19.²Mary Schlangenstein, Southwest Air Pilots Seek to Block Covid Vaccination Mandate, Bloomberg (Oct. 9, 2021), https://perma.cc/K64M-7DVP.

The SWA pilots’ union, the Southwest Airlines Pilots Association (“SWAPA”), asked the U.S. District Court of the Northern District of Texas to temporarily enjoin SWA from imposing the company’s vaccine requirement until the resolution of SWAPA’s lawsuit against SWA for alleged violation of federal labor laws.³Id. (citing Sw. Airlines Pilots Ass’n v. Sw. Airlines Co., No. 21–cv–02065–M (N.D. Tex. dismissed Oct. 26, 2021)). Specifically, SWAPA asserts that various actions taken by SWA, including the vaccine requirement, violate the Federal Railway Labor Act (“RLA”), a federal statute that governs labor relations in the airline industry.⁴Railway Labor Act, 45 U.S.C. §§ 151–188 (Suppl. 5 1934). In imposing the requirement, SWAPA claims, SWA imposed “additional new and unilateral modification[s] of the parties’ collective bargaining agreement [ ] in clear violation of the RLA.”⁵Plaintiff’s Opposed Motion for Temporary and Preliminary Injunctive Relief at 2, Sw. Airlines Pilots Ass’n v. Sw. Airlines Co., No. 3:21–cv–2065–M, 2021 WL 4975010 (N.D. Tex. Oct. 26, 2021). SWA contends, however, that any COVID-related changes over the past several months do not in fact require negotiation between SWA and SWAPA.⁶Schlangenstein, supra note 2.

The RLA defines two types of disputes that may arise between covered employers and the labor unions representing their employees:⁷Railway Labor Act, 45 U.S.C. § 151(a) (“The purposes of this chapter are . . . to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions [and] to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.”). “Major disputes,” as termed by the United States Supreme Court,⁸Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945) (“[T]he difference is between what are regarded traditionally as the major and the minor disputes of the railway labor world.”). which consist of disputes concerning rates of “pay, rules, or working conditions,”⁹Consol. Rail Corp. v. Ry. Labor Execs.’ Ass’n, 491 U.S. 299, 307 (1989). and “minor” disputes, wherein an employer asserts that the contested action was within their discretion and is arguably justified by the agreed-upon terms of employment between the employer and the union representing the employees—the collective bargaining agreement (“CBA”).¹⁰Id. at 302. The RLA “requires parties to arbitrate all ‘minor disputes’ before an adjustment board, which Congress authorized to settle labor-management disputes regarding collective bargaining agreements in the airline industry.”¹¹Hastings v. Wilson, 516 F.3d 1055, 1059 (8th Cir. 2008). 

The resolution of “major” disputes entails a “lengthy process of bargaining and mediation.”¹²Id. While parties are engaged in these procedures, they are obligated to maintain the status quo, meaning that the employer is barred from implementing the workplace change at issue.¹³Id. SWAPA contends that the dispute at issue, as an instance of an employer attempting to unilaterally alter the working employees’ conditions, qualifies as a “major” dispute that necessitates a preservation of the workplace status quo during the dispute resolution process.¹⁴Plaintiff’s Original Complaint and Jury Demand at ¶ 8, Sw. Airlines Pilots Ass’n v. Sw. Airlines Co., No. 3:21–cv–2065–M, 2021 WL 4975010 (N.D. Tex. Oct. 26, 2021), 2021 WL 3910085. Accordingly, as a major dispute, SWAPA contends that the vaccine requirement, among other actions by SWA,¹⁵Plaintiff’s Brief in Support of Motion For Temporary and Preliminary Injunctive Relief at 19, Sw. Airlines Pilots Ass’n v. Sw. Airlines Co., No. 3:21–cv–2065–M, No. 3:21–cv–2065–M, 2021 WL 4975010 (N.D. Tex. Oct. 26, 2021). must be enjoined while the dispute is being resolved.¹⁶Id. at 21.

Although SWA has not yet filed their response to SWAPA’s motion for injunctive relief, it can be anticipated that SWA will contend that the dispute at issue is a “minor” one that does not give rise to a duty to maintain the status quo because the terms of the existing CBA can be reasonably interpreted to encompass the company’s actions.¹⁷Id. at 22. We can expect that that SWA will prevail on this argument, as disputes under the RLA are, in normal times, typically presumed to be minor disputes.¹⁸Bloemer v. Nw. Airlines, Inc., 401 F.3d 935, 939 (5th Cir. 2005) (“There is a presumption that disputes are minor and thus arbitrable.”); Schiltz v. Burlington N.R.R., 115 F.3d 1407, 1414 (8th Cir. 1997) (“A party shoulders a ‘relatively light burden’ in establishing exclusive arbitral jurisdiction under the RLA.”); John C. Claya, Annotation, What Constitutes “Minor” or “Major” Dispute for Purposes of Determining Whether Dispute Is Subject to Mandatory Arbitration Before National Railroad Adjustment Board Under Railway Labor Act (45 U.S.C.A. §§ 151–188), 170 A.L.R. Fed. 1 (2001) (“Busy dockets and case law that favors giving the benefit of the doubt to categorizing the dispute as ‘minor,’ drives the dispute toward arbitration.”).  Interestingly, however, the one published case analogous to the Southwest dispute, concerning a railroad union’s concern with adequacy of their employer’s COVID-19 safety measures, saw a federal court go against this presumption and deem the dispute to be a major dispute that warranted the granting of injunctive relief in order to maintain the workplace status quo.¹⁹Union Pac. R.R. Co. v. Brotherhood of Maint. of Way Emps. Div. of Int’l Brotherhood of Teamsters, 509 F. Supp. 3d 1117, 1128 (D. Neb. 2020). But, importantly, injunctive relief was requested by the employer in order to prevent threatened work stoppages by union employees.²⁰Id.  As a major dispute, the injunction against the work stoppages was deemed appropriate in order to enforce employees’ duty under the RLA to maintain the status quo during the resolution process mandated by the RLA.²¹Id. Further, distinguishable from the Southwest dispute, the railroad and the union were in the process of negotiating a new collective bargaining agreement, which made the dispute more readily categorized as a major one.²²Id. at 1121–22.

Perhaps most detrimental to SWAPA’s case, however, is that to find a “major” dispute in this circumstance would be to lay down federal precedent that employers are liable to be sanctioned for abiding by a federal public health mandate—an unpalatable policy outcome irrespective of one’s views on the merits of the mandate.

The exigent nature of the pandemic required swift, unilateral actions by RLA-covered employers that altered the terms of their employees’ employment while, arguably necessarily, circumventing the bargaining process that typically precedes such changes.  As a nascent frontier of RLA law, it remains to be seen whether these pandemic-based unilateral measures will generally be deemed to give rise to major or minor disputes under RLA.  The resolution of the Southwest dispute—and others like it that are sure to follow—will help bring this indeterminate doctrine into focus.