Labor Relation Law and The Railway Labor Act - Essay Example

Labor Relations Law and the Railway Labor Act This paper will explore the establishment of Labor Relations Law and The Railway Labor Act. It will highlight the establishment of the two laws and explore the history of both. It will also compare, contrast and illustrate situations where the two laws are applicable. I have presented one examples of case law where the precepts and statues of the law has been applied to resolve disputes. The reader is cautioned to bear in mind that when The Labor Relations Law was established, many saw it as the panacea to protect workers and a facilitator of collective bargaining. As such it was welcomed by workers and unions, but not much favored by employers. In any system there exist the possibility of abuse by either of the players. In an attempt to suppress undue advantage, the National Labor Relations Board was established as the overseer. The Railway Labor Act was established to provide jurisdictional relief for all carriers except trucking companies and shipping lines. In Section 181, chapter II of the Act, special mention is made of the procedures applicable to carriers by air. I have also included working definitions and explainations for contracts, collective bargaining, unfair labor practices and the history of unionization. 1 2 The National Labor Relations Law and The Railway Labor Act The guiding purpose of the Labor relations Law was to protect the worker by providing a workable vehicle by which the unionization process would be facilitated, thereby enabling collective bargaining. It (was) a reality that basic labor law did not favor labor or unions. The NLRA was ostensibly structured to provide a more equitable approach to dispute resolution. The National Labor Relations Board is a five person appointed federal agency charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. The NLRB was established in 1935 through passage of the National Labor Relations Act, better known as the Wagner Act, and amended by the Taft-Hartley Act in 1947. The Board's jurisdiction is limited to private sector employees; it has no authority over labor relations disputes involving government employees, or railroad and airline employees covered by the Railway Labor Act or agriculture employees. In those parts of the private sector it does cover, on the other hand, its jurisdiction standards are low enough to reach almost all employees whose business has any appreciable impact on interstate commerce. The Taft-Hartley Act also created a formal administrative distinction between the Board and the General Counsel of The NLRB. In broad terms, the General Counsel is responsible for investigating and prosecuting unfair labor practice claims, the Board on the other hand, is the adjudicative body that decides the unfair labor practice cases brought to it. While the general Counsel has limited independence to argue for a change in the law in presenting cases to the Board, once the Board has decided the issue it is the General Counsels responsibility to 3 defend the Board's decision, even if it is contrary to the position he argued when initially presenting the case to the board. The Board is also responsible for the administration of the Acts provision governing the holding of elections and resolution of jurisdictional disputes. The Board has jurisdiction to hold elections and prosecute violations. Unfair Labor Practices The NLRB has the authority to investigate and remedy unfair labor practices, which are defined in section 8 of the Act. In broad terms the NLRB makes it unlawful for an employer to (1) to "interfere with, restrain, or coerce employees," in the exercise of their rights to engage in concerted or union activities or refrain from them, (2) to dominate or interfere with the formation or administration of a labor organization. (3) to refuse to bargain with the union that is the lawful representative of its employees. The Act similarly bars unions from (1) restraining or coercing employees in the exercise of their rights or an employer in the choice of its bargaining representative, (2) Causing an employer to discriminate against an employee, (3) refusing to bargain with the employer of the employee it represents, (4) engaging in certain types of secondary boycotts, (5) requiring excessive dues, (6) engaging in featherbedding, (7) picketing for recognition for more than 30 days without petitioning for an election, (8) entering into hot cargo agreements or (9) striking or picketing a health care establishment without giving the required notice. Not every unfair act amounts to an unfair labor practice, as an example, failing to pay an individual worker overtime pay for hours worked in excess of 40 hours in a week might be a violation of the Fair Labor Standard Act, but it is unlikely to amount to an unfair labor practice as well. Similarly, a violation of the collective bargaining agreement, standing alone, may not constitute an unfair labor practice unless the 4 employer has not only violated the contract but repudiated all or part of it. (Wikipedia) Contracts Are promises that the law will enforce. The law provides remedies if a promise is breached or recognizes the performance of a promise as a duty. Contracts arise when a duty does or may come into existence, because of a promise made by one of the parties. To be legally binding as a contract, a promise must be exchanged for adequate consideration. Adequate consideration is a benefit or detriment which a party receives which reasonably and fairly induces them to make the promise/contract. For example, promises that are purely gifts are not considered enforceable because the personal satisfaction the grantor of the promise may receive from the act is normally not considered adequate consideration. Certain promises which are not considered contracts may, in limited circumstances, be enforced if one party has relied to hi8s detriment on the assurances of the other party. Contracts are mainly goverened by state statutory and common (judge-made) law and private law. Private law principally includes the terms of the agreement between the parties who are exchanging promises. This private law may override many of the rules otherwise established by state law. Statutory law may require some contracts be put in writing and executed with particular formalities. Otherwise, the parties may enter into a binding agreement without signing a formal written document.(Cornell) Collective Bargaining In collective bargaining mediation, FMCS mediators are in touch with both parties even before negotiations actually begin. The contact is triggered by the legally required notice of intent to open a collective bargaining agreement. 5 During negotiations, effective negotiators use knowledge of the parties and issues "on the table" to guide negotiations through potential dead locks to a settlement which both sides can accept. Mediators may make suggestions and offer procedural or substantive recommendations with the agreement of both parties. However, they have no authority to impose settlements. Their only tool is the power of persuasion. The mediators' effectiveness stems from their acceptability to both parties, their broad knowledge, experience in the process of collective bargaining, and their status as respected neutrals.(Federal Mediator) Dispute Resolution, National Mediation Board, Cooling Off Period, and Legal Strikes Fiscal year 2003 began with the west Coast Ports dispute. The dispute involved 10,500 Longshoremen and clerks represented by the International Longshore and warehouse Union, and employed various terminal operators, stevedores, and shipping companies at 29 ports stretching from Seattle to San Diego. Collectively the companies constitute a multi-employer association known as the Pacific Maritime Association (PMA). The challenging issue for these negotiators was technological advancement and the corollary effect on job security for the union members. The public became aware of the dispute shortly after the July 2002 contract expiration, when it became increasingly apparent that the flow of goods could be halted. Over the next five months the United States and world economy were disrupted by the dispute, which included a 10-day West Coast closure of the West coast Ports. Viewing the closure of the ports as a threat to the health and safety of the nation the President of the United States elected to invoke the 6 Taft-Hartley Act for the first time in 24 years. The 29 West Coast Ports collectively handle nearly half of the container cargo entering or leaving the United States, with goods valued at more than $300 billion a year. It is the entry point for electronics, automobiles, auto parts, apparel, and toys from Asia. The timing of the dispute arising in July and continuing through October, impaired the ability of the U.S. economy to recover from the recession, as the months are crucial for the nation's retailers to prepare for the Christmas season. The members of the Pacific Maritime Association, a multi-employer association representing terminal operators, stevedores, and shipping companies, conduct business in a highly competitive environment. Success in this industry is measured by the ability to rapidly and economically move cargo on and off vessels. As dock space became increasingly limited, the efficient movement of cargo required implementation of technology to facilitate the processing of cargo. Prior to 2002, implementation of cargo had been uneven and unequal throughout the 29 piers. To address these challenges, the PMA proposed technological changes that would significantly alter the nature of the waterfront work, allowing them to operate efficiently, and compete globally. The union perceived these changes as a threat to job security. Accordingly, the unions' response to management's bargaining demands included work preservation, wage increases for its current members, and improvements to pension plans. The parties commenced negotiations three months before contract expiration, with no settlement of the primary issues. On July 1, 2002 the contract covering the ports 10,500 employees expired. The parties agreed to weekly contract extensions until early 7 September, when the PMA alleged that the union was staging a slow down and Paralyzing operations. FMCS mediators were in constant contact with the parties from the time negotiations began. When it was clear that a crisis could not be averted, the parties agreed to the active participation of the mediators. In October 2002, secretary Treasurer of the AFL-CIO, Richard Trumka, joined the negotiations. On September 29,2002, the PMA locked out 10,500 employees alleging that they had engaged in a slow down to pressure the employers in the negotiations. The union denied that it had started a slow down and instead argued that its members were adhering to contractually and federally mandated safety rules. The lock out resulted in significant cargo back ups and delayed shipments, resulting in higher cost for the thousands of retailers and manufacturers. Over 220 ships were essential "parked" in the Pacific Ocean awaiting unloading. while exporters were forced to ship their goods with expensive air freight and others lost orders from the United States because earlier shipments were held in port terminals. Some companies ceased sending shipments to the West Coast because of container shortages. Director Peter J. Hurtgen arrived on the West Coast shortly before the lock out began. He and his representatives, including the deputy Director and the local mediator engaged in round the clock mediation efforts to resolve the dispute. On October 7, 2002, the President of the United States invoked the Taft-Hartley Act to commence the process of reopening the ports and ending the lock out. Section 206 of the Taft-Hartley Amendment to the National Labor Relations Act allows the President of the United States to appoint a Board of Inquiry if a strike or lock out affects the entire 8 industry, or a substantial part thereof, which may "imperil the national safety". Upon receipt of the Board of Inquiry written report of the factual elements of the dispute, Section 208 allows the President to petition a district court to enjoin any strike or lock out that, if permitted to continue, "imperils national health and safety". On October 7, 2002 the President signed an Executive order creating a Board of Inquiry under Section 206 of the Statue. The Board consisted of former Tennessee Senator Bill Brock, and professors Patrick Hardin and Dennis Nolan. The Board of Inquiry immediately commenced a closed door fact finding mission, inquiring into the issue involved in the dispute and ascertaining the causes and circumstances thereof. On October 8, 2002 the Board of Inquiry fulfilled its statutory mission and submitted a written report to the President. The Act does not allow the report of the Board to contain recommendations. On October 10, 2002, after a submission of the Board of Inquiry report, the President, through the Attorney General, sought a temporary restraining order under section 209 of the statue enjoining both parties from engaging in any job action that would interfere with the continuation of dock work, including a management led lock out or a union supported slow down. The President cited economic damage from the lock out and the war on terrorism as a threat to the nations health and safety. Although the parties agreed to continue processing military cargo during the lock out, Defense Secretary Donald Rumsfeld, in a sworn statement asserted that a prolonged port closure could "degrade military readiness, hinder the departments ability to prosecute the global war on terrorism, and undercut other defense needs and world wide commitments". 9 On October 10, 2002, United States District Court Judge Alsup issued a temporary restraining order reopening the ports and sending employees back to work. The Judge scheduled a hearing for October 16, 2002, to determine whether a permanent injunction mandated the statutory 80-day cooling off period. Under court order employees return to work and start processing cargo, while the union director and his representatives continued their attempts to mediate an acceptable solution to the dispute. Employees continue to work under court order, but with an understanding from the judge that if the union encouraged or participated in a slowdown, the union could be held in contempt and face possible fines. The PMA continued to claim that employees engaged in a slowdown and forwarded productivity data to the justice department supporting its claim. The union asserted that productivity and cargo movement was slow because of the significant backlog of work, and blamed the PMA for the lock out that caused the backlog. The union maintained its position that it was complying with the federally mandated safety requirements when performing assignments and it was not engaged in a slow down. On October 16, 2002, Judge Alsup issued a permanent injunction that kept the ports open for the full 80-day cooling off period while the union and the PMA continued negotiations. While the Director continued mediating the dispute under a tight time line, The National Labor Relations Board prepared for a "final offer" election under section 209 (b) of the statue. The statue requires that, upon the issuance of a court order enjoining a work stoppage, the parties have 60 days to resolve the dispute. At the conclusion of the 60-fay period, the party's positions are to be reported to the President of the United States by the Board of Inquiry, along with efforts made to settle the case, 10 statements by all the parties, and a statement of the employer's lat offer. Due to the strict time lines involved, the parties continued the mediation process with the Director while the NLRB prepared its regional offices up and down the coast to hold a "last offer" election, After three weeks of ongoing negotiations, tentative agreement was reached covering the technology issues. The agreement in essence allowed the PMA to implement technological changes, but with notice requirements to the union and arbitration procedures to resolve disputes consistently throughout the ports. Any technological change, after notice to the union, maybe submitted to a joint-labor management technology committee for their recommendation. In absence of agreement by the committee, either party can file for arbitration, first through an area (or local) arbitrator, but with appeal rights to a "coast" arbitrator. Review by a coast arbitrator satisfied one important objective: ensuing consistent, uniform, and effective technology changes industry wide and an end to the practice of unequal and uneven implementation of technology. Although the union secured the return of previously transferred rail and yard partners, the introduction of the new technology in the short term would cost the union 400 positions through retirement and transfer to other duties. Despite resolution of this significant issue, other issues remained, including pension benefits and wages. The parties continued negotiations on the outstanding issues, but under advisement from the director, recessedfor one week. Under instructions from the Director, PNA used the recess to collect data calculating the potential savings from the technological changes and evaluating the savings against the cost of enhancing pension benefits, health care coverage, and wages for remaining employees. 11 Following close to two weeks of continuous negotiations mediated by the NLRB Director and his representatives, and a mere three week prior to the expiration of the cooling off period, the parties reached full agreement. The six-year agreement guarantees stability at the ports for a significant period. The contract guarantees job security for all existing clerks, increases in pay and benefits, continuation of full medical coverage, and pension increases. The contract was ratified by the largest margin in the union's history, the injunction was discharged, so ending the most costly labor dispute in 25 years. Development of American Labor Unions The concept of trade unions began early in the industrial revolution.More and more people left farming as an occupation and began to work for employers, often in appalling conditions and for very low wages. The labor movement merged as an outgrowth of the disparity between the power of employers and the powerlessness of individual employees. 18th century capitalist economist Adam Smith noted the imbalance in the rights of workers in regards to owners (or masters) in The Wealth of Nations. In Chapter 8 he wrote: "We rarely hear, it has been said, of the combinations of masters, though frequently of those of workmen. But whoever imagines, upon this account, that masters rarely combine, is as ignorant of the world as of the subject. Masters are always and everywhere in a sort of tacit, but constant and uniform combination, not to raise the wages of labor above their actual rate[shen workers combine] masters never cease to call aloud for the assistance of the civil magistrate, and the rigorous execution of those laws which have been enacted with so much severity against the combinations of 12 servants, laborers, and journeymen. Unions were illegal for many years in most countries. There were severe penalities for attempting to organize unions, up to an including execution. Despite this unions were formed and began to acquire political power, eventually developing into a body of labor law which not only legalized organizing efforts, but codified the relationship between employers and those employees organized into unions. The predominant historical view is that a trade union "is a continous association of wage earners for the purpose of maintaing or improving the conditions of their employment.". (Webb) Most labor unions in the United States are members of a larger umbrella organization, the AFL-CIO, or the American Federation of Labor-Congress of Industrial organizations. Unions of workers in the private sector are tightly regulated and overseen by the United States Department of Labor under the authority of the National Labor Relations Act (NLRA) which is administedred by the National Labor Relations Board (NLRB). To join a union, workers must either win voluntary recognition from their employer or have a majority of workers in a "bargaining unit", as determined by the federal government, vote for union fecognition.In either case the government must certify the existence of the union. Members of unions enjoy "Weingarten Rights", allowing union members to request representation by a union representative whenever management questions the member on a matter that might lead to discipline or other changes in working conditions. They are named for the first Supreme Court decision to recognize the, NLRB v J. Weingarten, Inc., 420 U.S. 251 (1975) (Clark and Clements 1978) 13 Railway Labor Law After major rail strikes in the early 1920's, Congress enacted the Railway Labor Law in 1926. Initial impressions of the Railway Labor Act were very favorable. Even after the 1934 amendments of which sub chapter II, sections 181-186-Carriers by Air was among these amendments. In 1937 Secretary of Labor frances Perkins gave the following assessment before a Congressional Committee: "The Railway Labor Act embodies the fullest and most complete development of mediation, conciliation, voluntary agreement and arbitgration that is to be found in any law governing labor relations".(Witte .244). After the war, evaluations and impressions of the act and its effectiveness began to shift. One observer in 1948 stated."The Railway Labor Act is far from being a model law and it should be recast." In 1950 The NMS's annual report viewed recent development in railroad bargaining with considerable concern.(Northorp 79) In as assessment of the law fifty years after enactment, Charles M. Rehmus had this to say about time and its test of the relevance and personalites involved and affected: "Perhaps, it is only now almost 50 years to the day since Railway Act was enacted and signed into law, that we can attempt a balanced appraisal of its strengths and weaknesses, its success and its continuing problems. This length of time has permitted certain fundamental variables to average out. Labor management relationships generally affected by long term fluctations in the nations business cycle as well as the waxing and waning of the fortunes of the particular industry involved. In some cases the personalities of the leaders on both sides of the bargaining table fundamentally affect the nature of their problems and the likelihood of peaceful settlements. Further, every regulatory law is to some extent an empty vessel: Into it the laws' administrators put their own 14 judgements, and these tend to affect the behavior of those who are regulated. This is particularly true of a law such as this which combines administrative rule-making and mediation - decision and persuasion-in the same individuals.Variations in style and judgement among members of the National Mediation Board should, by this time have worked themselves out".(Rehmus) Praise of criticism of the act over time have evolved around two very basic issues:Which were the essence of its enactment.: (1) efficency in encouraging the parties to resolve their individual or collective differences, and (2) the accomplishment of #1 without interruption in railroad or airline service. Section 2, of the original 1926 statue listed five basic purposes for the Acts existence: (1) To prevent interruption of services. (2) To ensure the right of employees to organize. (3) To provide complete independence of organization by both parties. (4) To assist in the prompt settlement of disputes over rates of pay, work rules and working conditions. (5) To assist in prompt settlements of disputes or greviances over interpretation or application of existing contracts. Originally the act stressed the importance of labor and management respecting the choice of each others representatives. Granted the original National Mediation Board did not have expressed authority or the administrative machinery needed to resolve the types of representation disputes they were encountering during its initial existence. Albeit the Board did recognize the need, it was simply over gunned by the large company dominated unions. With the introduction of the 1934 amendments, the Board became solidified; changes in administrative and regulatory powers assisted in providing the Act with 15 credibility over multi-national controlled money and influence. One of the major steps was to establish a means of cross-checking the balloting process. With this system in place, the presence of large company unions began to disappear. 500 company unions were replaced by 77 national unions. Although in afew cases company unions lingered on in the railroad industry until the 1940's, for the most part this was no longer a problem after 1935.(Rehmus) Since the 1940's the Mediation Board has been able to exercise strong administrative powers which it has used to certify unions. On this note of certification, it has been able to censure those organizations which have shown over time that they have practiced discrimination. In recent years, the center of labor representation disputes has shifted to the airline industry. When sub chapter II was enacted, it was pretty much exclusive for pilots. There was no crafts or class consideration in this sub chapter. Lately airline attendants; flight engineers, handlers, clerks, stewardesses, stewards, etc,. have sought representation under the act. After debate and consultation, the craft and class clause from the original Railway Act has been incorporated to serve chapter II's class and craft classifications. Citations Clark T. and Clements L., Trade Unions Under Catiralism, Atlantic Highlands, New Jersey, Humanity Press. Northrup Herbert R., Emergency Disputes Under the Railway Labor Act, Proceedings of Annual meeting, Industrial Relations Research Association, 1948 p,79 Pacific Maritime Association/International Longshore and warehouse Union, AFL-CIO, 2003. Rehmus, Charles M., Fifty years after the Railway Law Act. Webb, Beatrice, Webb, Sydney, History of Trade Unionism, 1894. Witte, Edwin, E., The Government in Labor Disputes, New York, McGraw-Hill, 1932, p.244. National Labor Relations Act, www.bc,edu/schools/law/lawreview/meto-elements /journals/bc/45_1/03 Wikipedia encyclopedia, Wikipedia.co, www.law.cornell.edu/topic/contracts.html Read More