July 23, 2020
Many members have asked me and other IBT representatives whether the IBT-United Collective Bargaining Agreement (Agreement) continues to apply during the pandemic. The simple answer is: IT DOES. Many have said they heard that United will invoke “force majeure” provisions in the Agreement and have asked what that allows the Company to do in an emergency. I have discussed this with our legal team and have some answers to your questions.
First -- “Force majeure” is a legal term that comes from the French words for “superior force.” It refers to clauses in contracts (including collective bargaining agreements) that allow one party or another to escape from some commitments if they are unable to perform them due to circumstances beyond their control. These are often referred to as “Act of God” or “Act of nature” provisions, and might provide that one party to a contract (or both) does not have to do something they promised to do in a contract if they were unable to due to an Act of God or nature occurs. For example, a contract to buy a house might have a “force majeure” clause that applies if the house is destroyed by a tornado or earthquake.
The words “force majeure” do not appear in our Agreement with United, but there are several “act of nature” or “act of God” provisions, including: Article 1.B.10.a (protecting San Francisco base); Article 1.B.10.b (providing for no forced relocation from SFO or Houston facilities); Article 2.M (emergency operations); Article 6.E (notice during RIFs); Article 17.H.6.d (mandatory overtime) and Letter of Agreement #18 (the no-furlough agreement). In every instance, the “force majeure” provisions are different, with different conditions about when they are triggered. Those differences are very important, because the exact language the parties used will determine whether there is a “force majeure” in any given situation. It is important to note that the Collective Bargaining Agreement as a whole IS NOT subject to force majeure exceptions and must be complied with even if acts of God or nature make it difficult or inconvenient for United to do so.
Letter of Agreement #18 (pages 260-61 of the CBA) is the no-furlough article, and as noted above it contains a “force majeure” clause. LOA #18 says that no employee on the Technicians’ or Flight Simulator Technicians’ seniority lists as of December 5, 2016 will be subject to furlough for the duration of the Collective Bargaining Agreement. The LOA contains an exception from the no layoff pledge “in the event that circumstances over which the Company does not have control is the continuing cause of such non-compliance. Circumstances beyond the Company’s control shall be: an act of nature; an ongoing labor dispute; grounding or repossession of a substantial number of the Company’s aircraft by a government agency or court order; loss or destruction of the Company’s aircraft; involuntary reduction in flying operations due either to governmental action(s)/requirement(s) or to a decrease in available fuel supply or other critical materials for the Company’s operation; revocation of the Company’s operating certificate(s); war emergency; a terrorist act, or a substantial delay in the delivery of aircraft scheduled for delivery, provided that one of these listed occurrences has a material and substantial impact on the Company.”
Article 1.B.10.b provides that employees at San Francisco and Houston maintenance facilities as of December 5, 2016 won’t be forced to relocate. It also provides, however, that these protections don’t apply “under the following circumstances: (a) an act of nature; (b) a strike or labor dispute; (c) a reduction in the Company’s operations because of a decrease in the available fuel supply or other critical materials due either to governmental action or commercial supplied being unable to meet the Company’s demands; (d) a revocation of the Company’s operating certificate(s), the grounding of a substantial number of the Company’s aircraft by governmental action, or a significant reduction of the size of the Company’s fleet or schedule beyond current levels; (e) a declared or undeclared war or national emergency; (f) compulsion by government agency or legislative or court action.”
United has announced that it plans to invoke the force majeure language in LOA 18 to lay off mechanics beginning October 1, 2020. It will announce when and where these layoffs will occur in September. United also has announced that it plans to invoke the different “force majeure” provisions contained in 1.B.10.b to force relocation from SFO and Houston starting in October. The IBT-Airline Division, in consultation with our legal team, is reviewing the Company’s plan and determining what it will do in response. We will make more information about that available after the Company announces its specific plans.
It is crucial for our members to understand that except for the few places where “Act of God” or “Act of nature” language appears, there is no “force majeure” allowing the Company to evade its contractual obligations under the Agreement generally. Our collective bargaining agreement remains enforceable, and the IBT will fight to enforce it.
Please let me know if you have any questions and I will do my best to get you answers, and thank you as always for your solidarity in these difficult times.
In Solidarity,
Vinny Graziano