Southwest Airlines and its union blues!

In a response to a union lawsuit, Southwest Airlines on Thursday defended its right to declare an emergency and force Chicago Midway ramp employees who called in sick to prove they really were sick.

In the filing in U.S. District Court in Dallas, Southwest said there was a perception that baggage handlers and other ground employees were calling in sick or refusing overtime work because they weren’t happy about contract talks.

“While Southwest cannot definitively identify the reason for the increased sick calls among ramp service employees in Midway at this time, it was widely perceived to be a coordinated job action to protest the slow progress in collective bargaining that had been ongoing since 2011,” the carrier said in its response to the Transport Workers Union Local 555 filing.

TWU Local 555 on Tuesday asked the federal court to bar Southwest from declaring an emergency and requiring employees to justify their use of sick leave.

While the union classified the disagreement as a major dispute that should be decided in court, the airline argued Thursday that it was a minor dispute that should go to arbitration.

In addition, Southwest said that it has the right to do what’s necessary to operate the airline unless the union contract doesn’t permit such actions. The union’s interpretation is that the airline isn’t allowed to do something unless the contract specifically allows it, the airline said.

Southwest acknowledged in its papers that it suffered an “operational meltdown” at the Chicago airport in early January, as inadequate staffing, heavy snowfall and biting cold combined to strangle its operations.

The case has been assigned to U.S. District Judge Barbara Lynn. As of mid-afternoon Thursday, no date had been set for a hearing on the TWU’s request for a temporary restraining order.

Keep reading for Southwest’s version of what happened at its Midway operations, contained in Thursday’s filing.

The circumstances that led to the Company’s Declaration of Operational Emergency on January 7, 2014 begin in late December 2013, when the Company began to experience an inexplicable increase in call-offs among the MDW ramp service employees. Call-off rates had been slightly elevated throughout December 2013, and the Company anticipated a spike in calls on December 31, 2013, and January 1, 2014, because of an historical pattern of increased sick calls on those dates among all employee groups.  While the Company planned for 30 to 40 call-offs on those dates, which would have been 10-12% of the employees assigned to work on those days, the actual number of call-offs was 56 (19%) on December 31, 2013, and 101 on January 1, 2014 (33%). Thus, the number of sick calls on New Year’s Day was roughly six times normal, an inexplicable increase even when the historical patterns of increased sick calls on New Year’s Day is taken into account.  As a result of the unprecedented level of sick calls and adverse weather that increased the work load for Midway’s ramp service employees, Southwest was forced to use a substantial amount of mandatory overtime on both days, assigning 182 shifts of mandatory overtime on January 1, 2014.
The assignment of large amounts of mandatory overtime, however, can aggravate staffing problems because of a work rule in the Local 555 agreement called the “ten hour rest rule.”  Under that rule, an employee who is assigned mandatory overtime is entitled to at least ten hours off at the end of mandatory overtime of four hours or more. An employee invoking the rule is entitled to ten hours off and pay for any shift for which they were scheduled during the ten hour rest period. The ten hour rule can be waived, and by waiving the rule the employee earns double time for any work during the ten-hour period.  During the time period at issue in this case, however, Southwest experienced an unusually large number of employees refusing to waive the rule, forcing the Company to fill another shift with mandatory overtime rather than working the scheduled shift at double time.
While Southwest cannot definitively identify the reason for the increased sick calls among ramp service employees in Midway at this time, it was widely perceived to be a coordinated job action to protest the slow progress in collective bargaining that had been ongoing since 2011. That perception, in turn, made it more difficult for Southwest to deal with the increase in absences.  For example, one vendor that could have provided Southwest with temporary employees, and had originally agreed to do so, backed out on the ground that it did not want to become involved in Southwest’s “labor problems.”
The operational problems created by increased sick calls were exacerbated by a week of extraordinarily severe weather in Chicago due to what meteorologists called a shift in the “polar vortex.” On New Year’s Eve and New Year’s Day, Chicago temperatures dropped into single digits, increasing the work load because of increased requirements for deicing.  On January 2, 2014, things got much worse. While Southwest expected based on historical experience that the spike in sick calls on New Year’s Day to return to normal on January 2, roughly 30% of the ramp service employees called in sick while another 46 employees, representing 15% of the workforce, declined assignments under ten-hour rest rule.  At the same time, a snow storm that Southwest thought would dissipate in the early morning continued all day, dumping a foot of snow at Midway.  The slow “turn times” caused by a combination of adverse weather and inadequate ramp service staffing created a snowball effect in which all of the available gates were filled with aircraft that could not depart, often because the flight crews were on incoming aircraft that could not reach a gate.  As a result, Southwest’s Midway operations suffered what has been described as an “operational meltdown,” with 66 aircraft on the ground at one point, many of which could not reach a gate to unload the passengers for several hours, and 55 empty aircraft stranded at Midway overnight, approximately twice the normal number.
While the operational problems on January 2 were not directly attributable to attendance issues among the ramp service employees, the operational morass created even more work for a smaller workforce because the inability to get aircraft to and from the gates resulted in thousands of checked bags missing the connections to other cities. By January 3, 2014, Southwest faced the daunting task of restoring 7500 pieces of luggage to customers spread throughout the U.S.  This included roughly 2000 to 3000 unclaimed bags at Southwest’s baggage check area and some 5500 bags loaded on baggage carts on the tarmac, carts which were needed for the normal operations. These bags had to be sorted and either delivered to the passenger in Chicago or sent on another Southwest flight to the passenger’s arrival city.
After determining the extent of the staffing problem at Midway, Southwest dispatched a 737 aircraft from Dallas filled with both management personnel and roughly 60 ramp service or other employees who had volunteered to assist at Midway. Southwest also recruited another 50 volunteers from other stations. Over the next few days, most of these employees worked 16-hour days or longer but were hampered by various factors. Between January 3 and January 5, 2014, by using temporary employees from other cities to sort baggage and by cancelling more than half of the regularly scheduled flights to MDW, Southwest was able to stabilize the operations at Midway. The staffing problems among Midway-based ramp service employees continued, however, with 49 call-offs (17.5%) on January 3, 43 on January 4 and 44 on January 5, as well as a continuing pattern of employees invoking the ten hour rest rule and declining overtime.
Indeed, the stark differences between the work patterns of the temporary employees who flew in from other cities to help and the reluctance of the Chicago-based employees created a strained relationship between the two groups. The Midway operations deteriorated further, however, on January 6, 2014, when the “high” temperature in Chicago dropped to -1 and the low dropped to -15.  On that date, the number of call-offs jumped to 89, or roughly 30 percent of the employees scheduled to work that day.  On the morning of January 7, 2014, after Southwest received another 50 call-offs for the morning shift alone, Southwest determined that it had no option but to take emergency steps to bring the sick leave levels at Midway under control.  As a result, on January 7, 2014, Southwest’s Managing Director – Ground Operations Steve Goldberg issued a memorandum, a copy of which is attached to TWU’s moving papers as Exhibit 1, declaring a State of Operational Emergency.
Under Goldberg’s memorandum, Southwest announced actions explicitly or impliedly permitted under the Local 555-Southwest Agreement that it intended to take in light of the operational emergency. First, Southwest required than any employee who called in sick beginning on January 8, 2014, would be required to present a doctor’s note establishing that he or she was, in fact, ill, and that failure to do so could be considered sick leave abuse.  Article 23-A of the Local 555-Southwest Agreement explicitly provides that “[u]sing sick leave or sick pay for a purpose other than that intended constitutes abuse. Abuse of sick leave or sick pay shall warrant immediate termination.” Taken together with Article 1.A – which provides that the Agreement’s purpose is to further “the well-being of Southwest’s Customers, the efficiency of operations, and the continuation of employment under reasonable working conditions,” and that it is “the duty of the Company, the Union, and the Employees to cooperate fully to attain these purposes” – and Article 2.C – which provides that Southwest may issue reasonable rules and regulations “not in conflict with the terms and conditions of this Agreement,” Southwest believed that it had the right to implement a requirement that employees reporting sick provide a doctor’s note during an operational emergency caused by abnormally high employee absence rates.
Second, Southwest stated that employees who refused mandatory overtime would be considered for potential discipline.  Article 7 § I.6 of the Southwest-Local 555 Agreement provides Southwest with the right to require mandatory overtime in the event an insufficient number of employees sign up for voluntary overtime. Article 20 sets forth the procedures with respect to Southwest’s discipline of employees for just cause. Thus, Southwest had the right to discipline employees refusing mandatory overtime in violation of Article 7.
The State of Emergency declared in Goldberg’s memorandum of January 7, 2007, remained in effect for only 33 hours. Following issuance of the memorandum, call-offs rapidly dropped to normal levels, and by 9:30 a.m. on January 9, 2014, Southwest concluded that the memorandum could be rescinded.

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