Southwest Pilots File Lawsuit to Halt COVID Vaccine Mandate

On Oct. 8, 2021, Southwest Airlines Pilots Association (SWAPA) filed a motion for temporary and preliminary injunctive relief in its ongoing lawsuit with Southwest Airlines, Co., initially filed on Aug. 30, 2021. The original complaint asserts the airlines are in violation of the Railway Labor Act (RLA), among other things, Sec. 6, which requires the parties to maintain "status quo" until a new agreement is reached. The lawsuit maintains that the carrier can not alter pay rates, rules, and working conditions until a new agreement is reached. Friday's filing, seeking an immediate hearing, declares:

"Most recently, on Oct. 4, 2021, Southwest Airlines unilaterally rolled out a new and non-negotiated COVID vaccine mandate for all employees, including SWAPA. The new vaccine mandate unlawfully imposes new conditions of employment, and the new policy threatens termination of any pilot not fully vaccinated by Dec. 8, 2021. Southwest Airlines' additional new and unilateral modifications of the parties' collective bargaining agreement is in clear violation of the RLA."

The original Aug. 30 complaint, which was amended on Oct. 6, 2021, emphasizes that the two parties—SWAPA and Southwest Airlines—currently have a "major dispute" within the meaning of the RLA and related case law and talks to improve the relevant collective bargaining agreement (CBA). More specifically, the claim states that during the COVID-19 pandemic, Southwest Airlines issued and implemented an "Infectious Disease Control Policy" that unquestionably altered Pilots' working conditions, rules, and pay rates. 

The initial claim explains the CBA (which covered the period from Sept. 1, 2012, through Aug. 31, 2020) instructs that either party may give written notice of its desire to modify the Agreement at least sixty days before Mar. 1 or each year beginning Mar. 1, 2020. Following those guidelines, SWAPA served its notice to Southwest Airlines on Nov. 1, 2019, and the parties met on Jan. 9, 2020, to begin immediate negotiations. 

SWAPA insists that from the beginning of the negotiations, Southwest Airlines "disregarded its obligations under the RLA to maintain status quo and its duty to engage in good faith bargaining." Numerous times, the lawsuit alleges, SWAPA has had to send written demands to Southwest Airlines to cease its one-sided actions to change the CBA while still negotiating Sec. 6. In a Jan. 10, 2020 letter, SWAPA asserts that under the guise of a "Check Airmen scheduling test," the Airlines attempted to change and negotiate new working rules and pay changes directly with check airmen. 

The allegations of unilateral changes to the CBA advanced by Southwest during the pandemic—absent of bargaining with SWAPA—continued throughout 2020. They include implementing an Emergency Time Off (ETO) program followed by an extended ETO (ExTO) program. The program gave the Pilots the option not to fly and not be paid in violation of the terms and conditions of the CBA. The parties eventually reached a memorandum of understanding (MOU) on the ETO but not on the ExTO. SWAPA insists that Southwest's "anti-union sentiment against SWAPA was high (and continues to be high)." Consistently, SWAPA argues:

"Defendant Southwest Airlines further availed itself of force majeure rights by issuing an emergency pandemic policy that it is using to improperly and illegally trump the CBA."

On Oct. 6, 2021, two days before filing its motion for temporary and preliminary injunctive relief, SWAPA filed an amended complaint to include Southwest Airline's Sept. 15, 2021, implementation of its "Vaccine Participation Pay Program" (VPPP)—yet another policy that changed the Pilots working conditions, rules, and pay. The new program, which was not bargained for with the Union, incentivized Pilots with additional pay for receiving the COVID-19 vaccine and also "threatened to take away Pilots' pay if they are not vaccinated by a deadline." The lawsuit states:

"By unilaterally implementing this policy, Defendant Southwest Airlines was, in essence, negotiating directly with the Union's membership to change its working conditions, rules, and pay."

Immediately upon learning of Southwest Management's plan to roll out its unilateral VPPP, on Sept. 14, 2021, Captain Casey Murray, SWAPA President, sent a cease and desist letter to Captain Bob Waltz, Southwest Airlines VP of Flight Operations. The letter demanded confirmation that the program did not apply to Pilots, which would be illegal under the RLA. In response, the suit describes that the Airlines instead proceeded to present the Management's new unilateral pay policy as if it had the authority to implement it unilaterally.

SWAPA asserts that throughout the pandemic, its Pilots have continued to carry out their work duties. They allege that as soon as the pandemic hit, Southwest Airlines "began stockpiling cash from all available sources," including the Payroll Support Program (PSP). The lawsuit, which points out that the Airlines made an "enterprise decision" to seek a 10% pay cut from unionized workers, including Pilots, claims:

"Defendant Southwest Airlines went from having a cash balance of $4.1B in 2019 to over $24B during the pandemic. Despite being cash positive, Defendant Southwest Airlines took advantage of the COVID-19 pandemic."

While the suit describes additional actions that transpired without effectively bargaining with SWAPA, it outlines that the most recent unilateral action by Southwest Airlines occurred on Friday afternoon, Oct. 1, 2021. According to SWAPA, on that day, without providing specific details, the Airlines "gave SWAPA a 'heads up' that it planned to roll out a vaccine mandate." 

Subsequently—despite fierce objections from Casey Murray and his assurance of SWAPA'S intent to seek injunctive relief to stop the airlines from taking "unbargained-for rights"—on Oct. 4, 2021, Southwest Airlines announced its unilateral vaccine mandate. The order made the experimental COVID-19 jab a condition of employment for Pilots and threatened termination for those who refused the shot. 

Later that same afternoon, on Oct. 4, 2021, Executive VP of Southwest Daily Operations Alan Kasher joined a SWAPA Board of Director's meeting to field questions and concerns of Board members. The discussion highlighted that Southwest's largest competitors (Delta, United, and American) had collectively bargained with their respective labor unions at the onset of the pandemic. As a result, by May 2020, they had negotiated COVID-related agreements in advance of changing working conditions, rules, and pay of their unionized workforce. The plaintiffs allege that "When asked point-blank, Captain Kasher could only admit that Southwest Airlines was wrong in failing to collectively bargain."

The amended complaint, in which SWAPA demands a jury trial, has two counts. Count I, "Failure to Maintain the Status Quo During the Ongoing 'Major' Dispute," and Count II, "Failure to Exert Every Reasonable Effort to Reach Agreement." 

Screenshot / Liberty Overwatch

Last Friday's motion asks the court to immediately intervene to stop Southwest Airlines from imposing or enforcing its unilateral new pay rates, rules, and working conditions related to Southwest Airlines Pilots. Instead, it asks the court to order Southwest Airlines to immediately revert back to the status quo ante under the existing bargain agreement pending completion of the RLA's "major" dispute resolution procedures regarding Southwest Management's implementation of:

Since Friday afternoon, Dallas-based Southwest Airlines has canceled over 2,000 flights. Management blamed the cancellations on a mixture of air traffic control issues, bad weather, and military flight maneuvers in Florida. Both the airlines and SWAPA insist that crew members did not call out sick to protest vaccine mandates and bring a halt to the busy holiday weekend. 

Still, according to The Dallas Morning News, many airline Unions have opposed the COVID-19 vaccine mandates, especially pilots concerned that health side-effects may put their commercial airline pilot license at risk.