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Neil Bernstein, LL.B., professor of law, has been closely following the flight attendants' dispute at America West. An expert in labor law and the Railway Labor Act, which includes provisions covering the airline industry, Bernstein is also a member of the National Academy of Arbitrators and serves as a mediator and consultant on labor and employment matters. Additionally, Bernstein has served as a senior antitrust attorney for the Missouri attorney general and general counsel to the Missouri Division of Insurance.
The Association of Flight Attendants' threat to disrupt America West flights in the ongoing labor dispute over salaries is a risky maneuver, Bernstein says. With the end of the 30-day cooling-off period in the negotiation process, the AFA has threatened a work action known as CHAOS -- "Create Havoc Around Our System" -- a move that hinges on a questionable court ruling dating back to the 1993 Alaska Airlines labor dispute, Bernstein says.
"Under CHAOS, the flight attendants pick a flight at random and announce at the last minute that they are on strike and will not board the airplane," Bernstein said. "The airline must then scramble to find a crew or face having to cancel the flight. Before permanent replacements can be found, the flight attendants make an unconditional offer to return, and thus avoid suffering the consequences of an ongoing strike. The move, if successful, could create a lot of uncertainty for the traveling public.
"However, CHAOS is actually much riskier than it would seem, because if the airline is able to find permanent replacements, the flight attendants involved are out of a job and must wait for a vacancy before they can go back to work," Bernstein continued. "The job action dates back to the 1993 case with Alaska Airlines, in which a district court judge in the Western District of Washington ruled that Alaska Airlines was wrong in firing its flight attendants who committed CHAOS.
"In the America West dispute, the airline could simply fire the flight attendants anyway, and, if sued by the AFA, the airline could hope for a favorable ruling from another judge," Bernstein said. "The Railway Labor Act has never been fully litigated, and the judge's ruling in the Alaska Airlines case was highly questionable. There is a lot of gray area in the law, because under the National Labor Relations Act, such employees can be fired. In addition, an employer has the right to lock out union employees and temporarily replace them with non-union, certified workers."
In the Alaska Airlines dispute, the flight attendants had the advantage of surprise, since the airline was unaware of the CHAOS strategy before it happened. The TWA flight attendants' strike in the 1980s demonstrates an airline's ability to bring in replacement workers. "During the strike, TWA had a number of certified, non-union workers and waves of program graduates who were ready to step in," he said.
