Questions About Southwest Airlines’ Cancelled Flights Continue
Southwest Airline Pilots Association (SWAPA), a collective bargaining unit which represents more than 9,000 Southwest pilots, filed a lawsuit against Southwest Airlines on Aug. 30, 2021 asking the court for injunctive relief against the airlines continued violation of the parties’ Collective Bargaining Agreement (CBA) and the Railway Labor Relations Act. A CBA is a contract between an employer and a union representing employees, which is created after lengthy negotiations over terms of employment.1
The National Railway Labor Act (RLA), which was enacted in 1926 to encourage negotiations between carriers and employees that would avoid interruption in interstate commerce, imposes a duty on employers and the employee union to “exert every reasonable effort to make and maintain collective
bargaining agreements.”2While the CBA negotiated between the pilots and the airlines expired Aug. 31, 2020, the RLA requires the parties to maintain the status quo as they negotiate in good faith the terms of the next CBA. The pilots allege that the airline did not maintain the status quo and instead implemented major policy changes in relation to the COVID-19 pandemic that “significantly altered working conditions, rules, and rates for pay for pilots.”3
Pilots Point to Lack of Force Majeure Clause in Collective Bargaining Agreement
At issue is the fact that the CBA did not have a force majeure clause that would have given one or both of the parties an out should they be unable to perform under the contract due to circumstances outside of their control. According to the American Bar Association (ABA), a force majeure clause “allocates the risk of loss if performance is hindered, delayed, or prevented because of an event that the parties could not have anticipated or controlled. It provides a contractual defense, the scope and effect of which will depend on the express terms of a particular contract.”4 Therefore, because there was no force majeure clause in the CBA when the airlines unilaterally implemented changes to the pilot’s employment during the COVID-19 pandemic, the pilots contend that the airline was in breach of the CBA and the RLA.
A force majeure clause in a contract is often boiler plate language. An example of standard force majeure language may read:
Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any obligation under this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected party, including but not limited to fire, floods, embargoes, war, acts of war, insurrections, riots, strikes, lockouts or other labor disturbances, or acts of God; provided, however, that the party so affected shall use reasonable commercial efforts to avoid or remove such causes of nonperformance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed. Either party shall provide the other party with prompt written notice of any delay or failure to perform that occurs by reason of force majeure.5
Pilots Contest COVID-19 Vaccine Mandates Issued by Southwest Airlines Management
In August, SWAPA requested that the parties come to the table to
bargain over current and future vaccine mandates. Southwest airlines
declined to meet stating that, “current CBA contains broad language
granting management the right to unilaterally take actions on those
issues.”6
The pilots’ Amended Complaint filed on Oct. 6 states that the airlines
began “Vaccine Participation Pay Program” in which pilots who received
the experimental COVID-19 vaccine were eligible for bonuses, while
pilots who did not comply by a certain date could be denied pay. Later,
Southwest instituted a vaccine mandate requiring all pilots to be
vaccinated by December 8 or face termination.7
A few days later, on Oct. 8, the pilots filed for temporary injunctive relief of the COVID-19 vaccine mandate. The pilots allege that Southwest airlines continues to take unilateral action in violation of the CBA and the RLA.8
More Than 1,800 Southwest Flights Suddenly Canceled in Early October
Amidst this legal battle, beginning the weekend of Oct. 9, more than 1,800 Southwest flights were canceled without warning (28 percent of scheduled flights), which left thousands of passengers stranded in airports and scrambling to find alternative flights on other airlines.9 Reasons for the canceled flights varied depending on the news source. According to The New York Times, Southwest attributed the interruption in air travel to severe weather and both the airlines and the pilots denied the vaccine mandate played a role in the canceled flights.10
The president of SWAPA, Casey Murray, said that no more pilots called in sick than normally would have on a normal weekend and blamed the cancelations on technological issues that arose from rerouting and reassigning pilots. The pilot’s union acknowledged that going on strike in order to resolve labor disputes was not permitted until all over avenues of negotiation were attempted first.
Southwest chief executive, Robert Jordan, admitted that the airlines have not made up for the loss of thousands of employees during the pandemic.11 “I’ve been at the airline for 33 years,” he said. “Constraints have always been, can you get aircraft, can you get airports, facilities, gates? This is the first time where the constraint is staff.”12
On Oct. 9, Southwest released a statement about the cancelations…
We experienced significant impact in the Florida airports yesterday evening after an FAA-imposed air traffic management program was implemented due to weather and resulted in a large number of cancellations. We are working hard behind the scenes to minimize challenges and fully recover the operation as we take care of displaced Crews and Customers as quickly as possible.13
The FAA denied that there were any air traffic staffing shortages and said:
Flight delays and cancellations occurred for a few hours Friday afternoon due to widespread severe weather, military training and limited staffing in one area of the Jacksonville Air Route Traffic Control Center.14
Commenting about the conflicting story lines, The Washington Post stated:
The fact that no Southwest pilots have come forward to confirm a sickout undercuts the idea that the mandate played a role in flight cancellations… But we are not going to completely rule out the possibility, either. Stranger things have happened and some of the official statements appear carefully worded.15
Pilots Defend Right to Choose Whether or Not to Get COVID-19 Vaccine
Joshua Yoder, a pilot and co-founder of U.S. Freedom Flyers, defended the pilots right to choose whether to be vaccinated saying…
My motive for resisting it is primarily religious for myself. Among my friends I saw a need. Many of us don’t want to take this. People were being coerced, I believe in freedom and I’m here to support the freedom of my fellow employees and all people across this country. I’m not going to take a mandate, I’m not going to be forced to do something I don’t believe in.16
Yoder explained that if pilots are fired for refusing to comply with the vaccine mandate, the effect on the economy could be devastating. He believes that pilots have control by exercising the power to say no. “First of all, we have all the control, and the control comes from a simple word, and that is ‘no.’ We just don’t need to comply.”17
In a YouTube video, another representative of the Freedom Flyers, warns that COVID-19 vaccine mandates represent a larger threat to freedom:
If we give in to these mandates and we do not stand up for our freedom of choice, we dishonor every armed service person over the last 257 years. A disservice to the people who fought and bled for the very freedoms we enjoy. Whether you believe in vaccination or not, I’m standing up for your freedom of choice. You may support the vaccine mandates because they fall in line with your current beliefs, but if we let this happen now, there will be a day when what you are told to do will not fall in line with your beliefs. If we do not stand together and fight back in one voice soon, we could be told where to live, what job we will do, what religion to believe and how many children we can have. Do you really want someone telling your children or your grandchildren what, when and how they will live every minute of their lives? It’s time to fight for our freedom while we still can.18
Southwest Management Denies the Pilots Staged a Walkout, Flights Resume
Southwest Airlines chief executive, Gary C. Kelly pointing out there is no evidence that the pilots staged a walkout, while appearing to walk back the company’s inflexible COVID-19 vaccine mandate and strict Dec. 8 vaccination deadline. He said:
We’re not going to fire any employees over this [mandate]. We’re urging all of our employees to get vaccinated. If they can’t get vaccinated, we’re urging them to seek an accommodation, so we’ll do everything we can to support our people here.19
On Oct. 13, Southwest operations resumed with only 90 cancellations out of 3,300 (2.7 percent) Southwest Airlines is headquartered in Texas and their pilots may look for protection from Governor Greg Abbott’s executive order curtailing all vaccine mandates, including by private companies and businesses. However, Southwest has said that the airlines will comply with President’s Biden’s federal order, which they contend supercedes Abbott’s state order.20
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