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RAILWAY LABOR ACT

   The Railway Labor Act, as it is applied today, is the culmination of over a century of experience with Federal legislation governing labor relations of employers and employees engaged in the rail industry. Its primary purpose is to promote and maintain peace and order in those relations as a means of avoiding interruptions in interstate commerce. During this period, Congress developed a comprehensive policy for dealing with transportation labor problems, and the law probably represents the most advanced form of labor relations procedure in this country. While not exactly Utopian, the Railway Labor Act imposes positive duties on both carriers and employees alike, defines the rights of the parties and makes provisions for the protection of such rights. The Act also prescribes methods of settling various types of disputes, and sets up agencies for adjusting differences.

   In order to understand the Railway Labor Act, it is important to briefly review the legislation that preceded its enactment.

Arbitration Act

   Congress enacted the first Federal legislation dealing with railway labor relations in 1888. The law provided: (1) for voluntary ad hoc arbitration when both parties to the dispute agreed; and, (2) the President could establish boards of inquiry to investigate labor disputes that threatened to interrupt interstate commerce. The boards of inquiry were to make a public report of the findings and to make recommendations. During the ten years of the law's existence, the arbitration provisions were never used, and the investigation provisions were used only once, and then without effect on a strike which was already in progress.

Erdman Act

   The Erdman Act of 1898 was the first law to place reliance upon the policy of mediation and conciliation by the government for the prevention of railroad labor disputes, with a temporary board for each case. The investigation features of the Arbitration Act were repealed, but voluntary arbitration was retained as a second line resolution procedure if mediation failed. In 1899, a union requested mediation pursuant to the Act, but the involved railroad refused to participate. This Act was not used again until 1906. Between 1906 and 1913, 61 cases were settled under this Act, mostly by mediation.

Newlands Act

   In 1913, several changes were made in the Erdman Act that emphasized the importance of mediation. These amendments later became known as the Newlands Act of 1913. The Newlands Act established a full-time Board of Mediation and Conciliation, and definitively placed the main reliance for settlement of disputes upon mediation. The Board was also required, if a dispute arose relative to the meaning or application of any agreement reached through mediation, to render an opinion when requested by either party to the dispute. When mediation failed, improved arbitration procedures were available.

Adamson Act

   The Adamson Act of 1916 was an attempt to settle a dispute with respect to the basic eight-hour day by direct congressional action, when mediation failed and arbitration was refused and a nationwide rail strike was imminent. The courts have held that the basic eight-hour day may be varied by union contract or individual agreement, if there is no union on the property for the craft involved.

Government Seizure of the Railroads during World War I

   During World War I, the Federal government took complete control of the nation's railroads. Labor-management relations were placed under the supervision of the Federal Railroad Administration and its director general. National Boards of Adjustment were created to settle, by arbitration, all disputes that arose due to interpretation of existing agreements.

   The standard labor unions supported the national boards since grievance arbitration was taken out of the hands of local, company-dominated unions. The carriers did not favor the national boards since they had little control over unions at the national level. During this period there was relative labor-management peace and few arbitration cases.

The Transportation Act

   The Transportation Act of 1920 created the United States Railroad Labor Board of nine members (there to represent, respectively, management, labor and the public) with authority to hear and decide disputes not disposed of in conferences between representatives of the carrier and the employees. Compliance with decisions of the Board was not made obligatory, and therefore the Board became ineffective.

The Railway Labor Act

   The next and last major law enacted to deal with rail-labor relations was the 1926 Railway Labor Act. The Act has been amended several times, but remains the hallmark of labor relations in the rail industry and the oldest continuous Federal collective bargaining legislation in the nation's history.

The Act has five major functions:

   1. To prevent the interruption of rail service;

   2. To allow employees to organize their own unions;

   3. To provide complete independence of organizations by both management and labor;

   4. To assist in prompt settlement of disputes arising with regard to rates of pay and working conditions;

   5. To assist in prompt settlement of any disputes or grievances which arise as a result of conflicting interpretations or application of existing agreements.

   As the various sections of the Railway Labor Act (RLA) are studied, it is obvious it has embodied provisions of the earlier Acts that were proven effective through experience.

   The RLA mandates certain basic principles as a foundation for sound labor relations. 152. First.

   "It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions..."

   The RLA imposes a positive duty upon all carriers and their employees subject to the Act to make and maintain written agreements. The relations between the carrier and employees are not to be governed by the arbitrary will or whim of management or the employees, but by written rules mutually agreed upon and equally binding on each.

38152. Second.

   "All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible, decided, with all expedition, in conferences between representatives designated and authorized so to confer..."

   When disputes arise, the RLA mandates an equal responsibility on the representatives of the parties to the dispute to hold conferences for the purposes of settling the dispute.

   152. Third.

   "Representatives...shall be designated by the respective parties without interference, influence, or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence or coerce the other in its choice of representatives."

   152. Fourth.

   "Employees shall have the right to organize and bargain collectively through representatives of their own choosing."

   152. Fifth.

   "No carrier, its officers, or agents shall require any person seeking employment to sign any contract or agreement promising to join or not to join a labor organization..."

   The RLA provides that representatives shall be designated by the respective parties without interference, influence, or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence, or coerce the other in its choice of representatives. The parties are free to choose their representatives and to make such choices by whatever means the parties deem appropriate.

   The RLA further guarantees the right of the employees to organize, and bargain collectively through their representatives.

   The Act forbids the carriers to require that employees join or not join any labor organization.

   39152. Sixth.

   "In case of a dispute., .arising out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, it shall be the duty of the designated representative or representatives of such carrier or carriers and of such employees.. .to confer in respect to such dispute..."

   As mentioned earlier, it is the duty of each party to exert every effort to make and maintain agreements, and to hold conferences for the purpose of settling all disputes.

   152. Seventh.

   "No carrier, its officers, or agents shall change the rates of pay, rules, or working conditions of its employees, as a class, as embodied in agreements except in the manner prescribed in such agreements or in Section 156 of this title."

   It is the duty of both parties to give at least 30 days' notice of any desired change in rates of pay, rules, or working conditions embodied in agreements. When a "Section 6" Notice has been served, and while conferences are being held, or while a dispute is in the hands of the National Mediation Board, rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon.

   Under the Railway Labor Act there are two types of contractual disputes: (1) those that involve changes^ in existing agreements or implied agreements (practices) are called "major" disputes^ and, (2) those that involve interpretation or application of existing agreements or implied agreements (practices) are called "minor" disputes. The Supreme Court has made it very clear that a dispute is not "major" just because the union and the employees are terribly upset about the outrageous behavior of the railroad. All that the courts look at is whether the railroad's position, as to why it gets to do what upsets the union, is "arguable". If the railroad has any argument at all that the agreement(s) or implied agreement(s) (practices) permit the action, the only thing the union can do is take the dispute, in the form of claims denied by the highest designated railroad labor relations officer, to arbitration. The courts will not let the union strike over a "minor" dispute".

   When the railroad has no argument at all that its action is permitted by agreement or practice, the union may strike until the carrier discontinues the action, or it may go to court to get an injunction against the railroad's action, because that would be a "major" dispute. In the past ten years (1984-1994), only two disputes in which the UTU has been involved (other than fully completed, but unresolved negotiations) have been ultimately found to be "major" disputes. One of them is a good example of what a "major" dispute is in this day and age. The railroad in that case ran a new type of train it was thinking about using halfway across the country with a crew of railroad officials. It did not claim the agreement permitted this. It did not claim the union had let it do so in the past to permit the practice. UTU struck the railroad until the train reached its destination, and a Federal court entered an order prohibiting the railroad from using crews made up of officials.

   Of course, even if a "major" dispute exists, no union officer may call a strike without the approval of the International President. In most cases, after a General Chairperson requests strike authority, the Field Service Department assigns a Vice President to investigate the dispute and report to the International President. Often the Legal Department will be asked for a legal opinion. If a "major" dispute appears to exist, and a vote of the Local Chairpersons is favorable, strike authority will be granted. The strike activity remains under the control of the International President, and assigned Vice President, as his or her agent.

   In order to make a record that the International President, Field Service Department and Legal Department can review, the General Chairperson should send the railroad a "non-acquiescence" letter in the form set forth on the following page. After the railroad responds to the letter, hopefully in writing, setting forth its reasons for taking the action at issue, all concerned will be better able to judge whether the dispute is "major" or "minor" under the Railway Labor Act.

RAILWAY LABOR ACT NON-ACQUIESCENCE LETTER

   [This form letter should be used with regard to any action taken by a rail carrier thought to constitute a change in existing agreements and practices. The International must have the Carrier's position in writing to evaluate whether the dispute is "minor" or major" under the RLA].

Dear [Highest Designated Carrier Officer]:

This Committee has learned that on or about (date) the carrier commenced (or will commence) [here describe the offending carrier conduct, attaching any available documentation]. This committee absolutely disagrees that carrier has any right under existing agreements and practices to do so. By what authority does the carrier purport to act? Given the seriousness of this matter, please respond immediately in writing.

Further, because of the importance of this issue we demand an immediate meeting regarding this matter, since the Act places an affirmative duty on the parties to "make and maintain agreements." Please advise as to when we will meet.

Sincerely,

[General Chairperson]

cc: Mr. C. L. Little, International President Mr. B. A. Boyd, Jr., Assistant President Mr. D. E. Johnson, III, VP-Administration

   Further responsibilities and obligations are placed on both parties in connection with disputes involving grievances and the interpretation or application of agreements. All such disputes which cannot be settled by the parties in direct conference are referable either to Special Boards of Adjustment set up by agreement (known as "Public Law Boards"), or the National Railroad Adjustment Board, as provided for in Section 3 of the Railway Labor Act. Carriers that fail to comply with awards of the National Railroad Adjustment Board or Arbitration Boards set up in accordance with the Act are made subject to civil suits for enforcement in Federal district courts, where attorney's fees are awarded by law upon enforcement. Arbitration findings are by law "conclusive," and court review is not available except in very limited circumstances.

   The Railway Labor Act, as amended, then provides definite procedures through which disputes shall be handled.

National Mediation Board

   The National Mediation Board was established in June, 1934 under authority of the Railway Labor Act, as amended.

   The National Mediation Board is an independent agency in the executive branch of the government and is composed of three members appointed by the President of the United States, by and with the advice and consent of the Senate. In addition, the Board has a staff of mediators, who spend practically all their time in field duty.

   Cases subject to the jurisdiction of the National Mediation Board are of three general kinds:

   1. Differences between carriers and employees regarding requests for changes in rates of pay, rules, or working conditions under Section 6 of the Railway Labor Act. ("major disputes" docketed as "A" cases).

   2. Disputes among employees as to who shall be their duly designated and authorized representative ("representation disputes" docketed as "R" cases).

   3. Interpretation of mediation agreements where controversy has arisen over the meaning or the application of such agreements (involving completed "A" cases).

Interest Arbitration

   When the National Mediation Board finds it impossible to bring about a settlement of any "A" case by mediation, it endeavors, as required by the Act, "to induce the parties to submit their controversy to arbitration." However, neither party is compelled to agree to arbitrate concerning an "A" case.

   If the parties agree to arbitrate, and the arbitrators named by the parties are unable to agree upon the neutral arbitrator or arbitrators, it becomes the duty of the National Mediation Board to name the neutral arbitrator(s). In agreeing to arbitrate, all parties to a dispute must enter into a signed agreement accepting whatever decision may be rendered by the Arbitration Board, which becomes the agreement between the parties.

Emergency Boards

   Under the terms of Section 10 of the Railway Labor Act, if a dispute between a carrier and its employees is not adjusted through mediation or the other procedures prescribed by the Act, and should, in the judgment of the National Mediation Board, threaten to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Board shall notify the President of the United States, who may thereupon, in his or her discretion, create an Emergency Board to investigate and report to him or her respecting such dispute. An Emergency Board may be composed of such number of persons as the President of the United States designates (usually three), and persons so designated shall not be pecuniary or otherwise interested in any organization of employees or any carrier. The President of the United States fixes the compensation of Emergency Board members. An Emergency Board is created separately in each instance, and is required to investigate the facts as to the dispute and report thereupon to the President of the United States within 30 days from the date of its creation. During that period, and for 30 days after issuance of the report, the parties must maintain the status quo. The carrier may not implement changes in the contract, and the union may not strike.

   Under the terms of Section 9A of the Railway Labor Act, enacted in 1981, governing commuter railroad disputes, the President of the United States must appoint an Emergency Board in an unadjusted mediation case if demanded by either party or the Governor of the state in which the service operates. The President of the United States must also appoint a second Emergency Board, if so demanded, and if no settlement is reached, that Board must choose between "final offers" of the parties. The same "status quo" provisions apply as in Section 10 Emergency Boards.