I:\PDO Admin\NMB at 70\ Caveat re Red Book of 1976.doc
“The Railway Labor Act at Fifty” is a compilation of papers, published in 1976, which
examined and appraised the effectiveness of the policies and procedures mandated by the
Railway Labor Act in 1926. It has been a popular reference for individuals interested in
the labor relations venue of the airline and railroads industries as administered by the
National Mediation Board (NMB). Because it is “out of print” and not available from the
agency, this publication is posted on the NMB web site for anyone interested in printing a
copy of it or referring to it online. Please note that this is a dated publication and may not
reflect accurately the current operations of the NMB or the views of current Board
Members.
THERAILWAY
LABORACT
ATFIFTY
CollectiveBargaining
inthe
Railroadand Airline
Industries
THERAILWAY
LABORACT
ATFIFTY
Collective Bargaining in the
Railroad and Airline
Industries
Benjamin Aaron
Dana E. Eischen
Beatrice M. Burgoon
Mark L. Kahn
Donald E. Cullen
Charles M. Rehmus
Jacob Seidenberg
© National Mediation Board 1976
© Charles M. Rehmus — 1977
All rights reserved.
The views expressed herein are those of the authors and not necessarily
those of the National Mediation Board
CONTENTS
Preface.......................................................................................................v
David H. Stowe
Chapter I—Evolution of Legislation Affecting Collective Bargaining in
the Railroad and Airline Industries........................................................... 1
Charles M. Rehmus
Chapter II—Representation Disputes and Their Resolution inn the
Railroad and Airline Industries .................................... 23
Dana E. Eischen
Chapter III—Mediation of Railroad and Airline Bargaining Disputes .. 71
Beatrice M. Burgoon
Chapter IV—Labor-Management Relations in the Airline Industry ...... 97
Mark L. Kahn
Chapter V—Voluntary Arbitration of Railroad and Airline Interest
Disputes ...................................................................... 129
Benjamin Aaron
Chapter VI—Emergency Boards Under the Railway Labor Act ......... 151
Donald E. Cullen
Chapter VII—Strike Experience Under the Railway Labor Act.......... 187
Donald E. Cullen
Chapter VIII—Grievance Adjustment in the Railroad Industry........... 209
Jacob Seidenberg
Chapter IX—The First Fifty Years—and then? ................................... 241
Charles M. Rehmus
Appendix A—The Railway Labor Act................................................. 261
III
Preface
On May 20, 1976, the Railway Labor Act celebrated its fiftieth
anniversary. Thus, today the Railway Labor Act is the oldest Federal law
directly affecting labor and management relations. Except to those
individuals engaged in the railroad and airline industries, the Railway
Labor Act is probably the least well-known of all existing labor
legislation, and consequently, perhaps the most misunderstood.
It was appropriate, therefore, that the National Mediation Board, on
the occasion of the Act's fiftieth anniversary, asked Dr. Charles Rehmus,
Professor of Political Science and Co-Director of the Institute of Labor
and Industrial Relations, the University of Michigan, to select a number
of people recognized for their knowledge and expertise in the field of
labor-management relations to prepare papers on the various aspects of
the activities encompassed by the Railway Labor Act.
The purpose of the papers was to examine the policies and
procedures mandated by the Act fifty years ago and to appraise their
effectiveness and value not only over that period of time but also in
terms of the present and the foreseeable future. These papers were
distributed in advance to some 150 representatives of labor and
management from the railroad and airline industries who, together with
the authors, attended a symposium on June 8 and 9, 1976, conducted by
the Board and its staff. The papers served as a basis for group discussions
and commentary. More importantly, they provided the opportunity for
labor and management in the railroad and airline industries and the
Board and its staff to have a full exchange of views on current problems
and procedures looking toward an even more effective relationship under
the Act in the immediate future.
The time between the Board's decision to undertake this project and
the dates for the symposium placed a severe burden on the authors, all of
whom are very busy as active practitioners and teachers in their field.
The Board gratefully acknowledges their willingness to undertake the
assignments under these circumstances. The Board further acknowledges
with thanks those from labor and management who gave of their time to
be interviewed by the authors. The Board particularly wishes to
acknowledge the contribution of Michael Cimini, NMB Research
Director, who diligently researched fifty years of Board files and records
to develop all information and materials requested by the authors.
These papers have been edited by Dr. Rehmus and assembled in this
volume. It is hoped that it will be a major contribution to knowledge in
IV
the general area of labor-management relations and that it will fill an
existing void in current literature leading to a better understanding and
appreciation of the Railway Labor Act.
David H. Stowe, Chairman
National Mediation Board
June 20, 1976
V
Legislation Affecting Railroad and Airline Collective Bargaining
CHAPTER I
EVOLUTION OF LEGISLATION AFFECTING
COLLECTIVE BARGAINING IN THE RAILROAD AND
AIRLINE INDUSTRIES
Charles M. Rehmus*
In 19th Century America the railroads were the essential means of
transport. Indeed, trains—passenger and freight—played a crucial role in
the transformation of the United States from a sparsely settled nation,
largely composed of relatively self-sufficient and isolated farming
communities, into an industrial urbanized giant.
In 1830, the country as a whole boasted only twenty-three miles of
operating railroad track. Some thirty years later, in 1862, that figure had
climbed to 32,120. During the Civil War the fever to bring ever more
land within the orbit of railroad service diminished only to resume with
even greater fervor once the North and South were reunited.
Until the early 1860’s, the individual states played the key role in
encouraging railroad building. In 1862, with the passage of the Pacific
Railroad Act, the Federal government also stepped in, granting loans and
land to companies willing to build east-west lines that would link the two
coasts. By 1869, with 46,844 miles of track in operation, that linkage was
achieved.
The advent of the railroad played a major role in settling the
American West. The railroads, eager to profit from the public land they
had acquired from the government, actively encouraged easterners and
immigrants alike to settle the vast open lands. Would be entrepreneurs,
farmers and ranchers eagerly responded to the opportunity, since eastern
markets were now open to the supply of western wheat and cattle and the
region’s mineral and timber wealth as well. Those who shipped
agricultural and mineral products to be consumed and processed in the
cities in their turn became equally dependent upon a return flow of
manufactured goods. So far as the cities themselves were concerned, by
the 1880’s the interurban railroads encouraged the enlargement of urban
centers and the growth of the suburbs. Middle and upper class city
dwellers now began to escape the noise and dirt of the mill and factory.
1
The Railway Labor Act at Fifty
The railroad’s impact upon the society was not wholly beneficial,
however. Illicit financial relationships were common between politicians
and bureaucrats on the one hand and transcontinental and interurban rail
operators on the other. For example, both rail franchises and Senate seats
were sometimes commodities for sale. Those with political influence
rode the trains free. The larger producers and shippers often received
rebates from roads eager for their business at the expense of those far
less able to pay. Tariffs were based on the presence or absence of
competing carriers rather than length of haul. Complaints concerning
exorbitant rates charged to haul products to market thus were frequent.
As agricultural production increased and prices consequently fell, the
railroads were also accused of keeping the lands they still retained off the
market for speculative purposes, thus depriving the farmer of the
opportunity to increase his production in the attempt to offset the drop in
prices.
The importance of the railroad as the nation’s economic pace-setter
and the outcries of those who felt helpless to oppose the practices of the
giant corporations did not go unnoticed. By the 1870’s, Congress was
considering ways to curb the railroads’ unlimited power to set rates.
When these first congressional deliberations failed to produce statutory
results, a number of states acted on their own to pass the so-called
“Granger Laws,” intended to end rate-setting abuses. In 1877, the
Supreme Court upheld those states’ right to do so.1 However, nine years
later, in the Wabash case, the Court held differently: only Congress could
set the rates of any railroad in interstate commerce. 2 In 1885, in response
to growing public dissatisfaction with the practices of an industry that
played such a vital role in the nation’s economic life, a Senate
Committee—the Cullom Committee—had held hearings throughout the
country to hear the public’s complaints. The Committee’s report,
recommending Federal regulation of railroads in interstate commerce,
coupled with the decision in the Wabash case, Jed to passage, in 1887, of
the Interstate Commerce Act. This was the first in a series of statutes
which have brought more and more aspects of interstate transportation—
rail, air, motor carrier, barge and pipeline alike—under Federal control.
In the short run, the new legislation and its implementing agency, the
Interstate Commerce Commission, were able to do little to alleviate the
problems which it faced. But in establishing the principle that the Federal
government had the right to regulate many aspects of the economic life
of industries vital to the whole economy and to set up regulatory
agencies to enforce Federal rules, the legislative precedent was of
fundamental importance.
2
Legislation Affecting Railroad and Airline Collective Bargaining
For example, it was quickly asserted that the Federal interest went
beyond railroad rates and rail-shipper relations alone. If the railroads’
services were vital to the nation, the public ought to be able to depend
upon their regular availability. Thus, labor-management disputes that
erupted into work stoppages could not be viewed solely as “family”
quarrels between the employer and his employees. Such matters too were
affected by the public interest. Initially, the government’s reaction to
railroad strikes was to come in heavily on the side of the carrier to end
them quickly and forcibly. The 1877 strike serve a good example. The
stoppage was primarily due to repeated wage cuts resulting from the
1873 Depression. But because it affected major lines in most parts of the
country many saw it as a kind of “general strike” and approved the use of
Federal troops to keep mail, freight and passengers moving on schedule.
In short, regardless of the causes that led the union to strike, it, not the
carrier, bore the burden of public dissatisfaction that crystallized into an
insistence that the government should intervene to protect the general
interest.
Railroad Labor Legislation Prior to 1926
As had been the case with rate regulations, several of the states led
the way in attempting to assist rail labor and management in the amicable
adjustment of their disputes. Most of these early state laws did little more
than propose special applications of already generally recognized
principles of arbitration.3 The first such state law was enacted in
Maryland in 1878. It provided that the parties mutually submit
unresolved disputes to tribunals composed of individuals appointed by a
local judge and chaired by him. Though submission to such tribunals was
voluntary, the award was to be binding and could be enforced by the
judge. Costs were to be shared by the parties. Similar laws were enacted
during the following decade by the states of New Jersey, Pennsylvania,
Ohio, Iowa and Kansas. In 1886, Massachusetts and New York also
enacted arbitration laws, but made a significant departure by establishing
permanent three-member arbitration boards appointed by the governor.
In the following year both of these boards were given the added power to
conciliate and mediate, a step they could take on their own initiative. As
has so frequently been the case with social legislation in the United
States, these evolutionary steps by the states became the model for
subsequent congressional action in the field.
A resolution by the U.S. Senate as early as 1882 had directed its
Committee on Education and Labor to investigate the causes of strikes
and to recommend legislation both to remove such cause and prevent
3
The Railway Labor Act at Fifty
their recurrence. The Committee held hearings in 1883 and published the
testimony it had heard in 1885, 4 but never issued any report or
recommendations as such. The House of Representatives’ Committee on
Labor, which had also been considering the strike problem for several
years, reported out a bill in early 1886 which recommended voluntary
arbitration but allowed no independent initiative by the government.5
Congress took no action during these years largely because no major
railroad strikes occurred.
Arbitration Act of 1888
In 1886, industrial strife again broke out on the railroads, in this case
against the Gould Railway System in the Southwest. Although President
Cleveland recommended at the time that a voluntary arbitration tribunal
be created, Congress did not act until 1888 when yet another bloody
railroad strike occurred, this time against the Chicago, Burlington and
Quincy. Under the Arbitration Act of 1888, the first federal statute
dealing with the problem, two means were provided for the adjustment of
labor disputes between the railways and their employees—voluntary
arbitration and investigation. Both parties could voluntarily agree to
submit a dispute to a three-member board of arbitrators. In addition, the
President was authorized to appoint a three-member commission to
investigate the causes of any railroad labor dispute. Such a commission
could be set up on the President’s own initiative, at the request of one of
the parties to the dispute, or at the request of the governor of any state.
Although the Arbitration Act of 1888 existed unamended for ten
years, in no case was any labor dispute on the railroads arbitrated under
it. Interestingly, however, the voluntary arbitration feature of the Act of
1888 was retained in subsequent railroad labor legislation even to the
present time.
The investigatory provision of the law was invoked by the President
in the Pullman strike of 1894. This strike too had been caused by wage
cuts coupled with the fact that the company did not reduce the rents its
employees had to pay in the company-owned town of Pullman, Illinois.
Despite the fact that the Illinois Governor did not ask for Federal
assistance—and, indeed, protested when it was nevertheless provided—
the U.S. Attorney General (a former Chicago, Burlington & Quincy
attorney still on retainer at the time of the strike) made certain that a
sweeping injunction against the strikers and their leaders was issued and
that Federal troops were called in at the first sign of a minor infraction.
The strike had thus been broken by the time the Presidential Commission
4
Legislation Affecting Railroad and Airline Collective Bargaining
could make its report. The recommendations did lead, however, to the
next congressional enactment in the field.
Erdman Act of 1898
As a result of the inadequacy of the Arbitration Act that was
demonstrated during the Pullman Strike, Congress began considering
alternatives. Finally, in 1898, it passed and the President approved the
Erdman Act. The new law omitted the investigatory features of the Act
of 1888, but continued the arbitration aspects of the old law. More
significantly, it introduced for the first time the possibility of mediation
of railroad labor disputes. By its provisions, the U.S. Commissioner of
Labor and the Chairman of the Interstate Commerce Commission, at the
request of either party to a railroad dispute involving operating workers,
were to make every effort to settle the dispute by mediation and
conciliation. If these efforts failed, the mediators were again to urge
voluntary arbitration upon the parties. One original feature of the new
law was a section prohibiting employer discrimination against an
employee because of union membership. This anti-discrimination
provision, to the extent it was enforceable by prison sentences, was later
declared to be unconstitutional by the Supreme Court. 6
Within one year of the passage of the law, a union requested
mediation proceedings but the railroads involved in the dispute refused to
participate. For the next seven years following 1898 the Erdman Act was
not used in a railroad labor dispute. Between 1906 and 1913, however, a
total of sixty-one cases were settled under the Act, ordinarily by
mediation and a few by arbitration. The major contribution of the
Erdman Act in the evolution of railway labor legislation was to
demonstrate the important role that mediation could play in the
settlement of labor disputes.
Newlands Act of 1913
In recognition of the importance of mediation rather than arbitration
in the settlement of labor disputes, amendments to the Erdman Act were
adopted in 1913 which became known as the Newlands Act. This Act
established a permanent board of mediation and conciliation for railway
labor disputes. Its jurisdiction covered disputes over the negotiation of
agreements and, in an important innovation, those arising out of the
interpretation of agreements as well. For the next several years, the
services of the Board of Mediation and Conciliation were frequently
invoked, with apparent success.
5
The Railway Labor Act at Fifty
In 1915, however, a number of railroad labor organizations initiated
a movement for an 8-hour work day and refused to arbitrate or permit the
mediation of the issue. Their position was apparently based on
disappointment over a recent unfavorable arbitration award and a desire
to demonstrate that they had sufficient economic strength to strike the
railroads successfully if their demands were refused. When a strike date
was set on this dispute, the workers agreed to forego strike action only if
an 8-hour day were enacted into Federal law. In response, in the
Adamson Act of 1916 Congress provided for an 8-hour work day on the
railroads. 7
Federal Control of Railroads, 1917-1920
During World War I the Federal government took control of the
nation’s railroads, placing them under a Railroad Administration and its
Director General. One consequence of this action was to greatly
strengthen the unions vis-a-vis the carriers. For example, workers could
not be discriminated against for union membership. More importantly,
the Director General made a number of national agreements with the
standard labor organizations—the first rail system-wide agreements in
the industry. Finally, national boards of adjustment were created to
handle grievances arising out of the interpretation of agreements. Perhaps
because it was a wartime period, or perhaps because of these innovations
affecting the railroad collective bargaining relationship, the war years
and those immediately following them were times of relative labormanagement harmony in the industry.
Transportation Act of 1920
When the railroads were returned to private ownership after the war,
there was considerable sentiment in Congress for amending the
Newlands Act of 1913. Many legislators wished to retain at least some of
the elements of government control of rail labor relations that had
evolved-during the period of wartime control. The Senate, for example,
enacted a bill providing for compulsory arbitration of disputes, but it
failed to be accepted by the House. The 1920 law which finally was
passed was a compromise, though it borrowed heavily from the wartime
experience. All unresolved disputes were to be referred to a newlycreated U.S. Railroad Labor Board for “hearing and decision.”
Adjustment boards for resolving grievances were to be created by the
parties. The Labor Board was to carry out both mediation and arbitration
functions, a feature which pleased neither railroad labor nor
management. Nevertheless, the Board was quickly swamped with cases.
6
Legislation Affecting Railroad and Airline Collective Bargaining
The unions were determined to retain their gains of the war years, while
the railroads were equally determined to erode them. The resultant
problems eventually discredited the Board despite the fact that during the
five years of its life it handled about 13,000 disputes, for the most part
successfully.8 In failing to rely primarily on voluntary collective
bargaining assisted principally by mediation to resolve interest disputes,
the Transportation Act of 1920 was not attuned to the basic ethos of
employee-management relations as it was developing in the United
States.
Railway Labor Act of 1926
Legislative History
It was apparent rather early that the Transportation Act of 1920 and
its administrative agency, the Railroad Labor Board, were not to be
successful in keeping peace in the railroad industry. The Board was
repudiated by the unions in the shopcraft strike of 1922. The
Pennsylvania Railroad ignored the Act and refused to disestablish its
company-dominated unions. The law became completely ineffective
when the Supreme Court rejected the Board’s application for
enforcement of a decision directing the carriers to cease dealing with
their dominated organizations.
During 1923-24, the Secretary of Labor and both Presidents
Harding and Coolidge asked for changes in the 1920 Act. The
platform of the Republican Party in 1924 provided that the 1920 law
should be amended, stating:
Collective bargaining, mediation, and voluntary
arbitration .are the most important steps in the
maintaining of peaceful labor relations and should
be encouraged. We do not believe in compulsory
action . . . Therefore the interests of the public
require the maintenance of an impartial tribunal
which can in an emergency make an investigation
of the facts and publish its conclusions.
The 1924 Democratic Party platform was not as specific but did agree
with the Republicans that the 1920 Act had “proved unsatisfactory
and must therefore be rewritten.”
Pursuant to these developments, a number of bills were dropped in
the Congressional hopper to amend the 1920 Act, the most important
being the Howell-Barkley Bill of 1924. This proposal had been drafted
7
The Railway Labor Act at Fifty
by the attorney for the railway labor organizations, Donald R. Rich-berg,
and his assistant, David E. Lilienthal.9 Thus, it had the support of the
railway labor organizations and was also backed by Samuel Gompers
and the AFL. Congress did not act on the bill, however, because the
carriers asked for more time on the ground that the Railroad Labor Board
should be permitted to try to work out its problems.
In December of 1924, President Coolidge again urged the carriers
and the railroad unions to jointly work out a procedure to ensure labor
peace in the industry. During 1925, a committee of railway executives
met with union representatives and a draft bill similar to the earlier
Howell-Barkley proposal was agreed upon. When the parties jointly
presented the bill to Congress in January, 1926, Richberg testified:
I want to emphasize again that this bill is the
product of a negotiation between employers and
employees which is unparalleled, I believe, in the
history of American industrial relations.
For the first time representatives of a great majority
of all the employers and all the employees of one
industry conferred for several months for the
purpose of creating by agreement a machinery for
the peaceful and prompt adjustment of both major
and minor disagreements that might impair the
efficiency of operations or interrupt the service they
render to the community. They are now asking to
have this agreement written into law, not for the
purpose of having governmental power exerted to
compel the parties to do right but in order to obtain
Government aid in their cooperative efforts and in
order to assure the public that their interest in
efficient continuous transportation service will be
permanently protected. 10
Supported jointly by the railroad industry and its unions, and
opposed only by the National Association of Manufacturers, the new bill
was passed 381 to 13 by the House in March and 69 to 13 by the Senate
in May, 1926. No changes of substance were made in the course of
hearings or enactment, despite some attempt by President Coolidge to
persuade the carriers and unions to accept amendments proposed by the
NAM. When these efforts failed the President signed the Railway Labor
Act on May 20, 1926. Despite a number of amendments, several
8
Legislation Affecting Railroad and Airline Collective Bargaining
fundamental but most minor, the Act remains operative legislation fifty
years later. As such, it is the oldest continuous Federal collective
bargaining legislation in the Nation’s history.
Nature of the 1926 Act
The underlying philosophy of the law was, as it still is, almost total
reliance on collective bargaining for the settlement of labor-management
disputes.11 When bargaining broke down, the law provided for
mandatory mediation but arbitration only if the parties agreed. A
major innovation was the specific provision for creation by the
President of emergency boards, a device by which neutrals might
make non-binding recommendations for procedures and terms on
which a dispute might be settled. Reliance was thus based on the hope
that public opinion would force compliance with otherwise nonenforceable decisions and recommendations.
It is apparent when one contrasts the Act of 1926 with the
predecessor enactments that the new law was actually a composite of a
number of the major voluntary features of railroad labor laws going back
to 1888. What was avoided was the concept acceptable only during the
war but embodied in the 1920 Act, that any neutral body should “decide”
the terms of railroad labor agreements. In short, the new law reflected
joint agreement by railroad labor and management upon voluntary rather
than compulsory means of settlement of labor disputes. It was jointly
acceptable perhaps only because so little in the statute was strikingly
original.
It also became apparent fairly shortly after 1926 that agreement on
some of the key provisions of the new law had been possible only
because the parties had decided to agree. Underlying disputes as to what
they had really meant and intended in the new statute continued to crop
up. The Act’s five basic purposes were set forth in Section II:
1. To prevent the interruption of service.
2. To ensure the right of employees to organize.
3. To provide complete independence of organization
by both parties.
4. To assist in prompt settlement of disputes over rates
of pay, work rules, or working conditions.
5. To assist in prompt settlement of disputes or
grievances over interpretation or application of
existing contracts.
Although the carriers had agreed that the representatives of the
parties should be chosen “without interference, influence or coercion by
9
The Railway Labor Act at Fifty
either party over the designation of representatives by the other” it soon
became apparent that a number of roads had no intention of
disestablishing or ceasing dealings with their existing companydominated unions. These company unions covered shopcraft employees
on most of the Nation’s roads (resulting from the defeat of the shopmen
in 1921-22) and a smaller number of their clerks and maintenance-ofway employees. Perhaps relying upon the fact that the Act of 1926
neither created an enforcement procedure to require the dismemberment
of company unions nor imposed a penalty on carriers that continued to
deal with such unions, some major roads immediately began to resist the
free choice concept of the new statute.
The history of the establishment of representation rights in the
industries covered by the 1926 Act and its amendments is dealt with by
Dana Eischen in Chapter II of this volume.
The machinery created by the original Act of 1926 designed to
dispose of grievances arising out of the interpretation and application of
contracts proved to be an almost total failure. The language of the new
statute concealed, without resolving, a basic disagreement between the
carriers and the unions. The unions had been extremely pleased with the
results they had derived from national boards of adjustment imposed by
the government during World War I and they sought to maintain them in
the new statute. The carriers were equally determined to maintain
grievance resolution at the individual system level. At heart this
disagreement was another manifestation of the company-dominated
union problem; namely, the role such unions were to play in the
resolution of grievances. With arbitration or adjustment boards created at
the national level, the standard trade unions would achieve complete
control of the grievance mechanism and largely deprive the dominated
local unions of any real function. Under a system of local boards the
company unions would continue to play an important role. The 1926
statute left the matter in limbo. The parties might agree on national
boards if they wished but were not required to db so: Nothing prohibited
an individual carrier from agreeing with local unions to settle grievances
on a local basis. This permissive language permitted a railroad to create a
grievance procedure with its company-dominated unions and freeze out
the standard trade unions. This underlying difference of intent was not
resolved until the 1934 amendments to the Act.
A major feature of the 1926 Act was to set forth a specific procedure
for settling disputes over the terms of new or renewed agreements. The
basic mediation function under the Act was to be undertaken by a fivemember Board of Mediation. The parties were required to give 30-days
10
Legislation Affecting Railroad and Airline Collective Bargaining
notice of a desire to reopen contracts and, failing agreement, the Board
was to mediate. If agreement did not result from this stage, the Board
was to attempt to obtain the parties’ agreement to submit the dispute to
arbitration. The not infrequent success of such efforts are described by
Benjamin Aaron in Chapter V of this volume. The mediation activities of
the Board of Mediation and its successor, the National Mediation Board
created by the 1934 amendments to the Act, are described by Beatrice
Burgoon in Chapter III.
As indicated, the one major innovation in the 1926 statute was the
detailed provision for procedures which would eventuate in the event
mediation failed and one or both of the parties proved unwilling to
arbitrate. In a dispute that would in the judgment of the Board “threaten
substantially to interrupt interstate commerce” the President might, “in
his discretion,” create an ad hoc emergency board “to investigate and
report respecting such disputes” within thirty days. During this period,
any carrier involved was to refrain from changing conditions of
employment and employees were prohibited from striking. The operation
of these ad hoc boards, which have come to be known as Presidential
emergency boards, and their impact upon collective bargaining are
discussed by Donald Cullen in Chapter VI.
The mediation and fact-finding functions provided for under the Act
were apparently not a source of dispute between the carriers and the
unions during the remainder of the 1920’s and most of the 1930’s. The
Board of Mediation enjoyed considerable success in resolving disputes
over new contracts. Railroad strikes all during this period were few and
those that occurred for the most part had little impact on the public.
Because of these circumstances many began to point to the Railway
Labor Act as a “model labor law.” As several commentators have
pointed out, however, this was the period of the Great Depression.
Unions were weak, wage movements not of pressing importance, and
technological change was not forcing wrenching interactions with
traditional work rules. The fact that most labor disputes were settled
peacefully during these years was due as much or more to the economic
circumstances of the time rather than a result of the special genius of the
Railway Labor Act of 1926.
Constitutionality of the 1926 Act
A test of the constitutionality of the new statute was not long in the
making. In May, 1927, the Brotherhood of Railway Clerks presented the
Texas and New Orleans Railroad with a set of proposed wage
improvements. Despite the fact that the carrier had bargained with the
11
The Railway Labor Act at Fifty
Clerks for years, it decided to discharge union members and only deal
with a newly-created company union called the Association of Clerical
Employees—Southern Pacific Lines. The Clerks sought an injunction to
restrain the carrier from interfering with the employees’ right to select
their own representatives under Section 2 of the Act. The Carrier
responded that the Railway Labor Act was unconstitutional in that it
violated the Company’s rights guaranteed under the First and Fifth
Amendments to operate its property, including the selection and
discharge of employees, as it saw fit.
The case reached the Supreme Court several years later, and the
Court disagreed. It had no doubt of Congress’ right to prohibit
interference in the choice of bargaining representatives under its
constitutional power to regulate commerce. Moreover:
The Railway Labor Act of 1926 does not interfere
with the normal exercise of the right of the carrier to
select its employees or to discharge them. The
statute is not aimed at this right of the employers
but at the interference with the right of employees
to have representatives of their own choosing. As
the carriers subject to the act have no constitutional
right to interfere with the freedom of the employees
in making their selections, they cannot complain of
the statute on constitutional grounds.12
The next test of the Act’s reach was made by the Virginian Railway
Company in the 1930’s. There the carrier, despite the fact that the
Mediation Board had certified a bargaining agent of its employees,
continued to deal only with the company union it had created after the
defeat of the shopmen in 1922. Underlying the dispute was the issue of
whether the duty placed on the parties in Section 2, to exert every
reasonable effort to reach agreement, was simply hortatory language or
could be judicially enforced. The Court held, “it is, we think, not open to
doubt that Congress intended that this requirement be mandatory upon
the railroad employer, and that its command, in a proper case, be
enforced by the courts.” 13 The company was ordered to recognize the
certified union and begin bargaining with it as the statute required. Years
later a narrowly-divided Supreme Court carried this decision a step
further, and held that if the bargaining which had taken place was
essentially a sham without a real intent on the part of one or the other of
the parties to reach agreement, the “good faith” obligation too may be
enforced by court order. 14
12
Legislation Affecting Railroad and Airline Collective Bargaining
Many other cases interpreting the 1926 Act have of course come
before the courts over the years. The more important of these will be
discussed in their appropriate context in the chapters which follow. Here
it might simply be noted that there are only two other situations in which
the Supreme Court has authorized the Federal courts to enjoin bargaining
behavior under the Railway Labor Act. In the first of these, the courts
can force the parties to maintain the status quo during the whole of the
bargaining period in order that the available statutory mechanisms be
given the opportunity to induce a negotiated settlement. 15 In the second
case, unions under the Railway Labor Act were thereafter required to
represent fairly all those employees for whom they are the designated
16
representative, without hostile discrimination against any of them. This
1944 decision, outlawing discrimination against Black members, has
been said to foreshadow not only Vaca v. Sipes on the general duty of
fair representation, but also the Court’s seminal decision in Brown v.
Board of Education that in public education “the doctrine of ‘separate
but equal’ has no place.”17
Amendments to the Railway Labor Act of 1926
Although the 1926 Act had proven reasonably successful in inducing
peaceful settlement of contract disputes, it had, as noted earlier, failed to
establish freedom of association where it did not exist. As late as 1933,
for example, 147 of the 233 largest railroads still maintained company
unions.18 The underlying reason for the continuance of this practice
despite the enactment of the statute was that the 1926 Act lacked
enforcement machinery and imposed no effective penalties for noncompliance. As also indicated earlier, the law permitted the parties to
create local system boards of adjustment and as a result substantial
numbers of railroad employees, perhaps a majority, had no neutral
mechanism for resolution of their grievances. Following the election of
Franklin D. Roosevelt as President in 1932, the chief executives of the
railway labor organizations, heartened by what they hoped was a
changed political climate, met to draw up new legislation designed to
strengthen and enforce the rights of self-organization and collective
bargaining already existing.
Their first opportunity to do so came even before President
Roosevelt took office. In the first months of 1933, nearly fifty railroads
were either in or near bankruptcy. The unions were able to obtain
amendments to the Bankruptcy Act guaranteeing the rights granted in the
1926 Act and going further to outlaw both the yellow-dog contract and
the closed shop. Though from today’s vantage point the last hardly looks
13
The Railway Labor Act at Fifty
like a union victory, at that time legislation preventing a carrier from
requiring employee membership in a company-dominated union was
very valuable to the national unions. Later that year these labor
provisions affecting bankrupt carriers were extended by the Emergency
Railroad Transportation Act of 1933 to the whole industry.
The 1934 Amendments
In early 1934, the heads of a number of major railroad unions called
on President Roosevelt to support their proposed amendments to the
1926 Act. At his suggestion they met with Transportation Coordinator
Joseph B. Eastman and reached agreement on a bill that was sent to
Congress, although without Roosevelt’s endorsement. The railroad
carriers did not directly oppose the bill before Congress but suggested a
substantial number of limiting or crippling amendments. Finally, after
much legislative and political maneuver the Democratic Congress passed
the amendments to the Railway Labor Act: The President signed them on
June 21, 1934. In general, the amendments were hailed by the national
labor organizations as an impressive legislative victory.
First, the 1934 amendments carried forward into the revised Railway
Labor Act the gains of the Bankruptcy and Emergency Railroad
Transportation Acts. Yellow-dog contracts and company-sponsored or
dominated unions were barred. The carriers were not to influence
employees in their choice of representatives and were directed to bargain
collectively with certified representatives. The ban on the closed shop
was continued, although now despite some union opposition.
Second, the amendments provided for the establishment of a
permanent, bipartisan National Board of Adjustment, to which
grievances might be submitted by either party. Provision was made for
neutral referees in case the partisan members of the Board could not
agree and for the enforceability of Board orders in court. The history of
the National Railroad Adjustment Board (NRAB), and its successes,
failures and substitutes, is detailed by Jacob Seidenberg in Chapter VIII
of this volume.
Third, the Board of Mediation of the 1926 Act was renamed the
National Mediation Board and reduced from five to three members. This
reduction was ostensibly because the Board’s workload no longer
included grievance disputes. The new Board was empowered to conduct
representation elections, however.
The 1934 amendments to the 1926 Act represent the last changes of
major importance in the collective bargaining legislation affecting
railroads in the nation’s history. Moreover, in some respects they were an
14
Legislation Affecting Railroad and Airline Collective Bargaining
important precursor of elements of the National Labor Relations Act
which followed a year later.
The 1936 Amendments
In 1936, the provisions of the Railway Labor Act were extended to
air carriers. The chief lobby favoring this amendment was the Air Line
Pilots Association, then the only union in this new industry. The one
exception to the general extension of the Act from one industry to
another was that it was made optional whether a National Air
Transportation Adjustment Board would be created. In fact, the air
transportation industry and its unions have always preferred to maintain
local system boards for grievance resolution. The experience of the
airlines under the Railway Labor Act is related by Mark Kahn in Chapter
IV.
Further Amendments
In 1940, a minor amendment to the Act clarified its coverage as it
affected certain rail operations in coal mines.
In 1951, the legislative decision of 1934 to continue the prohibition
of the closed shop, which some unions by then had opposed, was
substantially reversed. The union shop was made a permissible form of
required union membership. In addition, dues deductions were permitted.
In 1964, the term of office of members of the Mediation Board was
clarified, and a member whose term had expired was asked to continue in
office until his successor was appointed and confirmed.
Almost as soon as it was created the caseload of some divisions of
the NRAB became too heavy and decisions ever-farther behind. In 1966,
Congress approved the creation of Special Adjustment Boards to hear
and resolve grievances on the local properties. In 1970, Congress
changed the permanent membership of the NRAB to 34, half appointed
by the carriers and the other 17 by that number of national labor
organizations.
Summary
From the foregoing, it is apparent that railroad labor relations have
always held a special position in the United States. With the exception of
the Labor-Management Reporting and Disclosure (Landrum-Griffin) Act
of 1959, our general labor law has never been applied to the railroad
industry. This is true not only of legislation affecting railroad collective
bargaining. The pension system for railroad employees was established
independently under the Railroad Retirement Act of 1935. Not until
15
The Railway Labor Act at Fifty
1974, and then only partially, was it blended with the general Social
Security system. Similarly, unemployment insurance for railroad
employees was established separately under the Railroad Labor
Unemployment Insurance Act of 1933. After World War II, this Act was
extended to include death, disability, and sickness insurance programs,
still independent of the general body of social welfare legislation.
This independent legislative treatment of railroad employment
relations undoubtedly lies in two special characteristics of the industry.
The railroad work force is national in scope, representing approximately
the same percent of the population in each state. The industry carries
freight in every state except Hawaii. Hence, on those legislative issues
upon which railroad labor and management can agree, the industry and
its unions speak to almost all legislators with equal strength and receive
equal attention. In short, part of the answer for the special treatment of
railroad labor relations lies in the industry’s unusual lobbying strength
and has resulted in the parties receiving much of what they have been
willing to seek jointly.
Of equal or greater significance as a reason for special railroad labor
legislation is an historic and pervasive belief that the national welfare
necessitates uninterrupted railroad service. This belief has long
dominated congressional action in the field of railroad labor legislation.
While it has been challenged from time to time in recent years, the
conventional wisdom that a national railroad strike cannot be tolerated is
probably still believed by the large majority of the Congress and the
public. This same influence was certainly not valid for the air transport
industry when it was brought under the Railway Labor Act in 1936. Even
today, some contend that a national airline strike would represent no real
threat to the national health, safety, or general welfare. It is nevertheless
true that were a national air transport strike ever to occur its impact upon
the opinion molders and policy makers in this nation would be immense
and would be reflected in considerable pressure for immediate
governmental action to end the stoppage. It can reasonably be concluded
that special treatment of railroad and airline collective bargaining,
including severe constraints on the parties’ right to undertake national
strikes or lockouts, is still generally thought desirable.
Rail and Air Collective Bargaining Structure
Neither the rail nor the air transport industrial relations environment
can be described simply. Both industries operate in all regions of the
United States. There are about seventy line-haul Class I railroads in the
nation, as well as about four hundred small feeder, switching and
16
Legislation Affecting Railroad and Airline Collective Bargaining
terminal railroads. Over thirty air carriers are certified to provide
scheduled domestic and international service, although a dozen of these
furnish more than eighty percent of the total revenue miles of cargo and
passenger service.
Over twenty so-called standard railroad unions hold representation
rights in the railroad industry along with nine unions representing
railroad-employed marine workers and a number of local unions and
system associations. The number of unions that have held bargaining
rights in the industry at one time or another must approach seventy-five.
Today many rail negotiations take place on a national basis, however,
covering most major carriers as well as groups of unions. Each major air
carrier negotiates with perhaps a half of the dozen or so unions holding
bargaining rights on the airlines. Unlike the railroads, each airline
negotiates independently with its own unions.
Given the multiplicity of employers and unions in both industries,
one must be very cautious about generalizations. Certain features are
characteristic of collective bargaining in them as a whole, however, and
in both industries the structure of collective bargaining is influenced by
the statutory activities of the National Mediation Board.19
The Railroad Bargaining Structure
Unlike almost all other industrial relationships in the United States,
railroad collective bargaining agreements are not commonly of a fixed
duration. Instead, periodic requests for wage and rules changes may be
raised by either party simply by filing notice of intent to change an
existing agreement, a so-called Section 6 notice under the Railway Labor
Act. For many years, however, the parties have agreed upon moratoria
that eliminate the obligation to bargain on specified subjects for specified
periods. Such moratoria do not bar the raising of other issues in the
interim, however.
A second major characteristic of rail bargaining, followed for over a
generation, is an agreement between representatives of the carriers and
unions to conduct many of their collective bargaining negotiations on an
industry-wide basis. Such negotiations are generally referred to as
“concerted” or “national” wage or rules movements. Such movements
are usually initiated by a single union or groups of unions serving largely
identical Section 6 notices simultaneously on each of the major railroad
carriers throughout the Nation. These notices also include a request that
if the proposals are not settled on the individual property the carrier joins
with other carriers to authorize a conference committee to represent them
on a regional or national level. Such negotiations in years past usually
17
The Railway Labor Act at Fifty
took place on a regional level in Eastern, Western, and Southeastern rail
territories. More recently, in 1963, the carriers established a permanent
National Railway Labor Conference. This Conference now represents
railroad managements in negotiations that are nation-wide in scope. The
chairman of the National Railway Labor Conference serves as
spokesman and chief negotiator for the industry, although ultimate power
to ratify an agreement has typically resided in the regional conference
committees composed of representatives from many of the major
railroads in a region.
The overwhelming bulk of the industry’s approximately 500,000
employees are organized. The industry’s major unions have traditionally
been viewed as falling into three groups: operating crafts, non-operating
crafts, and shopcrafts. In recent years, however, these groupings have
had less meaning as the traditional affiliations have changed due both to
mergers and to splintering.
The five traditional operating unions represented engineers, firemen,
trainmen, conductors and brakemen, and switchmen. In 1969, all but the
engineers merged to become the United Transportation Union (UTU), an
organization of about 250,000 members and one of the two largest
unions in the industry. The engineers remain in their original
organization, the Brotherhood of Locomotive Engineers (BLE).
Among the approximately one dozen non-operating craft unions are
the Brotherhood of Railway and Airline Clerks (BRAC), the
Brotherhood of Maintenance of Way Employees (BMWE), and the
Brotherhood of Railroad Signalmen (BRS). On several occasions prior to
World War II, seventeen non-operating railroad labor organizations
negotiated national wage and rules movements as a body. After 1945 and
until about 1970, the non-operating crafts splintered into various and
shifting coalitions for collective bargaining purposes.
The six shopcraft unions, the International Association of Machinists
(IAM), the International Brotherhood of Electrical Workers (IBEW), the
Brotherhood of Railway Carmen (BRC), the Boilermakers and
Blacksmiths (BB), the Sheet Metal Workers (SMWIA), and the Firemen
and Oilers (IBFO), traditionally formed the Railway Employees
Department (RED) of the AFL-CIO and negotiated as a group. Both the
Machinists and the Sheet Metal Workers have recently resigned from the
RED, leaving only the other four shopcrafts to bargain together.
Since 1970, there has been increasing pressure on all participants in
railroad negotiations to induce all or most of the major unions in the
industry to reach some kind of consensus on collective bargaining goals.
The major unions and the National Railway Labor Conference have
18
Legislation Affecting Railroad and Airline Collective Bargaining
attempted to bargain, if not together, at least at the same time over wages
and fringes in order to develop a “pattern” acceptable to all or the
overwhelming bulk of the carriers and the employees in the industry.
These developments have been strongly encouraged by the government
and neutral participants and have met with considerable success. They
were only made possible by a common realization that the economics of
the industry required an end to leap-frogging and a willingness to yield
some share of independent decision-making power in return for a greater
degree of security for the employees who now remain in the industry.
Although these developments are still far short of Eugene Debs’ dream
of an industrial union of all railroad workers, they are a major step
toward a more unified structure for rail collective bargaining.
The Airline Bargaining Structure
As stated earlier, unlike the railroad industry, in the airline industry
bargaining by individual air carriers with those unions representing only
their own employees is the rule. The extent of unionization in the airlines
is not as great as on the railroads, although the major trunk carriers are
substantially organized.
About a dozen unions hold collective bargaining rights in the airline
industry. The Air Line Pilots Association (ALPA) is the dominant
organization on the flight deck, with only American Airlines’ pilots in an
independent association. The craft of flight engineers is largely being
merged with that of pilots. The Flight Engineers International
Association (FEIA) still holds bargaining rights with several carriers,
however.
Flight attendants have their own organization, the Association of
Flight Attendants (AFA). AFA was formerly a division of ALPA and is
still loosely affiliated with it. The Transport Workers Union of America
(TWUA) also represents flight attendants on a number of carriers, as
does the Teamsters on several smaller airlines. Maintenance employees
and mechanics are represented primarily by the IAM or TWUA. Clerical
and office employees, if organized, are represented by the Brotherhood
of Railroad and Airline Clerks (BRAG), the Air Line Employees
Association (ALEA), the International Association of Machinists (IAM),
or the Teamsters. The few remaining airline dispatchers are represented
by a number of unions; and communication employees by TWUA, IAM,
ALEA, or the Communications Workers of America (CWA).
Except for two occasions when the IAM negotiated simultaneously
with a group of four or five carriers, individual carrier bargaining, as
noted above, has been the rule in the industry. In 1958, a number of
19
The Railway Labor Act at Fifty
major air, carriers created the Mutual Aid Pact, a form of strike insurance
under which participating carriers make substantial payments to those
being struck. This device, strongly opposed by the industry’s unions, has
the obvious purpose of reducing the vulnerability of a single carrier to a
strike called by the more broadly-based unions. In the late 1960’s, the
industry created the Airline Industrial Relations Conference (AIRCON).
This Conference has never attempted to become the bargaining
spokesman for the industry. Instead, AIRCON is involved in behind the
scenes coordination of inter-company bargaining policy.
The first collective bargaining agreement in the air transport industry
was not negotiated by ALPA until 1939, and for all practical purposes
strikes were not a problem until after World War II. After 1945,
however, strikes began to occur in the industry at an average rate of
about four a year, and have continued at roughly the same pace since
then. These strikes were of considerable governmental concern between
1946 and 1966, and a number of emergency boards were appointed to
help resolve disputes in the industry. Finally, however, the individual
carrier bargaining structure that has persisted in the industry made it
apparent that a strike against an individual carrier, whatever affect is
might have on the parties themselves, only inconvenienced a limited
public. As a consequence, since 1966, mediation has been the limit of
governmental intervention in the industry’s bargaining impasses.
Administration of the Railway Labor Act
The railroad and airline bargaining structure described in the
previous section is, of course, partly the creation of the respective parties
and partly the result of the requirements of the Railway Labor Act. That
Act has been administered since 1934 by the National Mediation Board.
Considering the range of its responsibilities, the economic importance of
the two industries, and the nation-wide scope of their operations, the
National Mediation Board is a very small agency when compared with
most of the Federal bureaucracy.
The Board is composed of three members. Each is nominated by the
President and confirmed by the Senate. Both major political parties must
be represented in its makeup. Each member is appointed for a three-year
term, one term expiring each year. In practice, reappoint-ment of
members has been common and only eighteen individuals have been
appointed to the Board in over forty years. By recent practice, the
chairmanship of the Board has rotated annually among its three
members.
20
Legislation Affecting Railroad and Airline Collective Bargaining
The professional staff of the Board is small, consisting of a halfdozen key administrators in the Washington office and about twenty
mediators in the field. Mediators for the Board are recruited from the
railroad and airline industries and their unions. Occasionally their prior
collective bargaining experience has been in both industries or from both
sides of the collective bargaining table. Field mediators are stationed in
cities along the length of the Atlantic Coast, in a half-dozen major cities
in the Midwest, and in California. They are responsible for both
mediation and representation cases.
The National Railroad Adjustment Board (NRAB) is an
administrative responsibility of the National Mediation Board. In
practice, however, the NRAB functions largely autonomously. The
headquarters of its four divisions is in Chicago. In recent years, the
NRAB has been disposing of slightly over 1,000 grievances per year,
considerably fewer than in earlier years. As will be discussed in Chapter
VIII, this shift has been brought about by the creation of so-called public
law boards which hear and dispose of grievances on the individual
railroad properties. Approximately 170 new public law boards are
established annually, the neutral members of which are appointed by the
National Mediation Board. All of the work of the NRAB and the public
law boards involve railroad grievances only. Although the National
Mediation Board is authorized to create a National Airlines Adjustment
Board, neither the parties nor the Board have ever deemed a national
board necessary. However, in cases where the parties to an airline
grievance are unable to agree upon a neutral, the National Mediation
Board does name the neutral referee.
The present annual budget of the National Mediation Board is about
$3 million. Nearly one-half of this amount is spent on the processing of
grievance disputes by the Adjustment Board, the remainder being used
for the representation and mediation activities of the NMB.
The National Mediation Board classifies the disputes brought to it in
one of five ways.20
(1) Disputes arise as to who will be the representative for collective
bargaining purposes of a given craft or class of employees. Such
representation disputes are docketed separately by the Board and are
commonly referred to as “R” cases. Policy issues are ordinarily resolved
by the three members of the Board, but may be referred to special
tribunals.
Representation cases and elections are handled by the Board’s field
mediators. The Board disposes of fewer than 100 representation cases
annually, the actual number varying from 64 to 110 in recent years.
21
The Railway Labor Act at Fifty
About 60 percent of representation cases now arise in the airline
industry, most of these among ground service employees.
(2) Mediation cases are assigned after the parties are unable to
resolve a dispute concerning changes in rates of pay, rules or working
conditions. Mediation cases are docketed separately and are referred to
as “A” cases.
Mediation is recognized by labor, management and experienced
neutrals as the most useful function government can provide to assist
collective bargaining negotiations. Out of the thousands of Section 6
notices that are filed each year with individual rail and air carriers,
hundreds are docketed for mediation. Field mediators of the Board meet
with the parties and assist them in resolving from 200 to 400 such
disputes each year.
(3) The National Mediation Board is authorized to interpret
agreements when the parties disagree over the meaning or application of
previously agreed-upon mediation settlements. Such interpretation
cases are uncommon, arising only three or four times each year.
(4) A certain number of disputes are brought to the Board where it is
not readily apparent whether the underlying dispute is over
representation or the terms of an agreement. Such disputes are designated
“C” cases and assigned to a mediator for investigation on the property. In
many of these, the mediator is able to assist the parties in identifying and
resolving the problem during the course of his investigation. The number
of such cases resolved exceeds 100 annually.
(5) In addition to the four categories of disputes listed above, the
Board assigns an “E” designation to situations wherein the Board’s
services are proffered under the emergency provisions of Section 5, First,
(b) of the Act. These cases are generally major or “national” disputes.
One of the three members of the Board often participate in them, in
active personal mediation, in the proffer of arbitration and in the decision
whether to recommend to the President the creation of an emergency
board. All of these Board functions affecting railroad and airline
bargaining—the handling of representation disputes, mediation of
bargaining impasses, and the use of voluntary interest arbitration and
Presidential emergency boards—are the subjects of Chapters II-VI that
follow:
__________
* Professor of Political Science, The University of Michigan and Co-Director, Institute of
Labor and Industrial Relations, The University of Michigan-Wayne State University
1. Munn v. Illinois, 94 U.S. 113 (1877).
2. Wabash, St. L. & P. Ry. v. Illinois, 118 U.S. 557 (1886).
22
Legislation Affecting Railroad and Airline Collective Bargaining
3.
4
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
This state legislation, and a rather substantial body of European experimentation
which led the way for it, is detailed in Joshua Bernhardt, The Railroad Labor Board,
Baltimore: Johns Hopkins Press, 1923, pp. 2-7.
Report of the Committee of the Senate upon the Relations between Labor and
Capital, 4 vols., 1885.
The legislative history of this bill may be found in “Government Industrial
Arbitration,” U.S. Bureau of Labor Bulletin 60 (1888).
Adair v. U.S., 208 U.S. 161 (1908).
When the Adamson Act came before the Supreme Court in the case of Wilson v.
New, 243 U.S. 332 (1917), the Court in upholding its constitutionality asserted that
Congress was using “its authority to compulsorily arbitrate the dispute.” This is one
of the earliest suggestions that Congress had the authority to enact legislation to
require compulsory arbitration of labor disputes.
Jacob J. Kaufman, Collective Bargaining in-the Railroad Industry, New York:
Kings Crown Press, 1954, p. 65.
Irving Bernstein, The Lean Years, Boston: Houghton Mifflin Co., 1960, p. 216.
“Railroad Labor Disputes,” Hearings before the House Committee on Interstate and
Foreign Commerce, 69th Congress, 1st Session, (1926) p. 9.
The text of the Act, as amended, may be found in Appendix A.
Texas & New Orleans Railroad Co. v. Brotherhood of Railway and Steamship
Clerks, 281 U.S. 548 at 570 (1930).
Virginian Railway Company v. System Federation No. 40, 300 U.S. 515 at 548
(1937).
Chicago and North Western Railway Co. v. United Transportation Union, 402 U.S.
570 (1971).
Detroit & Texas and St. Louis Railway Co. v. United Transportation Union, 396
U.S. 142 (1969).
Steele v. Louisville and Nashville Railroad, 323 U.S. 192 (1944).
Benjamin Aaron, “The Union’s Duty of Fair Representation under the Railway
Labor and National Labor Relations Acts,” Journal of Air Law and Commerce, Vol.
34, Spring 1968, pp. 167-207.
Irving Bernstein, The New Deal Collective Bargaining Policy, Los Angeles:
University of California Press, 1950, p. 43.
A more detailed discussion of these matters may be found in Harold Levinson, et al.,
Collective Bargaining and Adjustment to Technological’ Change in American
Transportation, Evanston, Illinois: The Transportation Center, Northwestern
University, 1971, particularly Part II, on railroads, by Charles M. Rehmus and Part
IV, on airlines, by .Mark L. Kahn.
The National Mediation Board makes an Annual Report each fiscal year which also
includes the report of the National Railroad Adjustment Board. These are available
from the U.S. Government Printing Office, Washington, D.C.
23
Representation Disputes in the Railroad and Airline Industries
CHAPTER II
REPRESENTATION DISPUTES AND THEIR
RESOLUTION IN THE RAILROAD AND AIRLINE
INDUSTRIES
Dana E. Eischen*
Introduction
A basic tenet of American labor relations legislation has been the
vesting of exclusive representation rights in the representative selected
by a majority of the employees in a particular bargaining unit. Inevitably,
this concept gives rise to disputes among employees, labor organizations
and sometimes employers regarding such questions as the nature and size
of the bargaining unit; related questions of voter eligibility; the method
of determining the choice of a majority of the employees; and the
bargaining consequences of such a choice. Thus, under the Federal
legislation and Executive Orders governing labor relations, as well as
under most State laws on this subject, administrative machinery and
agencies are established to handle and resolve such questions. As
originally enacted in 1926, the Railway Labor Act incorporated the
concept of majority representation, but did not establish procedures for
resolving representation disputes. Amendments in 1934 and 1936,
respectively, authorized the National Mediation Board to determine the
employees’ choice of representatives in the railroad industry and
extended this authority to resolve representation disputes in the airline
industry.
The Railway Labor Act is unique in American labor relations
legislation in that it was not created-by the legislature nor was it imposed
upon one of the parties. Rather, it is the product of mutual draftsmanship
by labor and management in the railroad industry and thus it embodies
the customs and practices of an industrial relations system already well
established by 1926. This highly specialized railroad statute was fitted in
1936 onto the infant airline industry with virtually no tailoring. My
colleagues have shown in several other chapters that the Act has unique
mediation and arbitration features, largely as a result of its genesis in the
railroad industry. The pages which follow in this chapter will examine
1
The Railway Labor Act at Fifty
the characteristics of representation disputes and their resolution under
this statute. History, basic principles and terminology, and procedural
aspects of the National Mediation Board’s handling of representation
disputes are set forth in detail. Special emphasis is placed upon the
concept of craft or class as it developed in the railroad industry and was
extended by administrative action to the airline industry. Finally, an
assessment is made of the Act’s provisions and the National Mediation
Board’s administration of representation disputes in the two industries.
Representation Disputes Under the Act
The Historical Overview
In Chapter I Charles Rehmus has indicated that labor relations on the
railroads were the first to be governed by Federal legislation; tracing
back through the Arbitration Act of 1888, the Erdman Act of 1898, the
Newlands Act of 1913, the Transportation Act of 1920 and culminating
in the present administration of the Railway Labor Act of 1926, as
amended. Railroad labor relations under the auspices and guidance of
Federal agencies have long been considered a separate and distinct world
from labor relations in general industry. 1 Despite this long history of
governmental involvement in collective bargaining in the industry, there
was essentially no mechanism before 1934 for resolving disputes
concerning representation of employees.
Starting about the middle of the 19th century the operating
brotherhoods, craft unions comprising employees in train and engine and
yard service, obtained representation rights by recognition agreements
for brakemen and yardmen, locomotive engineers, locomotive firemen,
including hostlers and outside hostler helpers, and conductors. Later,
during the years 1890 to 1910, some recognition rights were obtained on
a carrier-by-carrier basis by organization of non-operating employees
such as clerical workers, telegraph and communication workers, train
dispatchers and signalmen. Also during this period organization
developed among the shopcraft employees. Throughout this period,
representation was achieved by recognition by the carriers,
euphemistically termed “voluntary,” and not by governmental
procedures. The organization patterns were sporadic among various
crafts and carriers, with little or no uniformity even on a single carrier.
During World War I the railroads were under Federal control from
1917 to 1920. The Director General of Railroads issued General Order
27 in 1918 which, together with its supplements, established
occupational groupings known as “crafts or classes” of employees for
2
Representation Disputes in the Railroad and Airline Industries
purposes of collective bargaining. Thereafter, in 1919, the Director
General approved various national agreements with the established
railroad brotherhoods representing operating, shopcraft and other nonoperating employees. The scope and classification rules of these
agreements were, in effect, recognition clauses for these unions among
their respective craft or class bargaining units. Thus, the period of
Federal control was a relatively quiescent time for representation
disputes.
The Transportation Act of 1920 returned the railroads to private
ownership and established the tri-partite United States Railroad Labor
Board to handle negotiation disputes through mediation and interest
arbitration. Neither authority nor machinery was provided for the
resolution of representation disputes. As will be seen, however, the
disposition of some interest disputes by arbitration decisions implicitly
settled, for a time at least, related representation problems. In its
decisions No. 2 and No. 119 the Railroad Labor Board extended the
various national agreements, including the national scope and
classification rules, until July 1, 1921. Decision No. 119 further
instructed the parties to bargain for successor agreements and
promulgated a series of principles to govern such negotiations, including
Principle No. 15 as follows:
The majority of any craft or class of employees shall
have the right to determine what organization shall
represent members of such craft or class. Such
organization shall have the right to make an agreement
which shall apply to all employees in such craft or class. 2
This principle of exclusive representation status by the majority
choice of the craft or class was the rule thereafter but, lacking
administrative machinery and authority for its implementation, it was
honored more in the breach than in the observance. The shopcraft strike
of 1922 ended in virtual capitulation by the unions after the full weight
of Federal authority and injunctive relief was brought to bear upon
strikers. A result of this setback for the organizations was carrier
recognition of organizations of non-striking workers and an increase of
3
company unionism. This period was thus one of considerable turmoil in
bargaining and in representation activity as the carriers strove to reassert
prerogatives prevailing before Federal control and the organizations
clung to advantages and members gained during that period. With no
independent agency determinations of representation questions, these
problems exacerbated the already difficult bargaining conditions in the
industry.
3
The Railway Labor Act at Fifty
With the passage of the Railway Labor Act in 1926 a new agency,
the U.S. Board of Mediation, succeeded the U.S. Railroad Labor Board
and labor and management once again were admonished to respect one
another’s free choice of representatives. But this Board, like its
predecessor, had no express authority or administrative machinery to
resolve representation disputes. For the most part, when such problems
arose the U.S. Board of Mediation attempted to mediate agreements
between carrier and employee representatives relative to the craft or class
unit, the method of determining choice and employee eligibility to
participate. During these early years under the Act there was continued
turmoil on the representation scene. Many so-called “system unions”
continued with company support notwithstanding the U.S. Supreme
Court’s decision in 1930 against company-dominated unions.4 Indeed,
company unionism continued in the railroad industry into the 1940’s
until, under the amended Act, national unions obtained nearly total
coverage among recognized crafts or classes. 5
The Railway Labor Act, as Amended
Largely through union efforts, the Act was substantially amended in
1934. Among the major changes was the provision, for the first time in
railway labor relations history, for administrative authority and
mechanisms for the resolution of representation disputes. Thus, the
hortatory admonitions of the U.S. Railroad Labor Board in Decision No.
119 would henceforth be backed up by government agency
determinations and certifications.
The major provisions relative to representation matters are set forth
in Section 2 of the amended Act. Among the stated purposes of the Act
are: to forbid any limitation upon freedom of association among
employees, including “yellow dog contracts”; and to provide for the
complete independence of carriers and employees in self-organization.
That such provisions were needed is attested to by the fact that between
1933 and 1935 some 550 company unions on 77 Class I railroads were
replaced by national unions.6 Subsequent paragraphs of Section 2
provide that representatives shall be designated by the respective parties
without interference, influence or coercion by the other; and that an
employee representative need not be in the employ of the carrier whose
employees he or it represents. There are no prohibited “unfair labor
practices,” as such, in the Act, but under Section 2 “no carrier shall
interfere, influence or coerce employees to prevent their designation of
representatives,” whether representatives are employees or not. It should
be noted that under this provision there is no requirement that the
4
Representation Disputes in the Railroad and Airline Industries
representative of the employees be a labor organization. Section 2, Third.
Individuals, whether employees or not, can be and have been certified as
exclusive bargaining representatives when chosen by a majority of the
employees in a craft or class.7
The heart of the representation pro visions lies in Paragraphs Fourth
and Ninth of Section 2 which, like the rest of the Act, are administered
by the National Mediation Board. 8 Paragraph Ninth sets forth the duties
of the Board to investigate, upon request, any representation dispute
among employees and to certify to contesting parties and the carrier the
name or names of individuals or organizations who are the authorized
and designated bargaining representatives. The Board is expressly
authorized to use a secret ballot election procedure or any other
appropriate means (e.g., a check of valid authorization cards) which will
assure a free and uncoerced exercise of the employees’ right to choose
representatives. If the Board chooses to conduct a secret ballot election,
the designation of eligible voters and establishment of rules to govern the
election are the responsibilities of the Board. One of the curious features
of this Section is that the Board is authorized to appoint a committee of
three neutral persons to act in its stead and, after holding a hearing,
designate the employees who may participate in an election. In the 42
years since the 1934 amendments, the National Mediation Board twice
has appointed so-called “committees of three,” in 1959 and 1965. In each
of these instances a panel of professional arbitrators appointed by the
Board designated eligible voters in controversial representation disputes
in the airlines industry (these cases are described in detail infra).
Whether the Board or its delegates makes the eligibility designations, the
guiding principles in either case are the majority rule and craft or class
concepts which were adopted in Section 2 Fourth of the Act almost
verbatim from Decision 119 of the old Railroad Labor Board. Thus,
Section 2 Fourth reads in pertinent part as follows:
Employees shall have the right to organize and bargain
collectively through representatives of their own
choosing. The majority of any craft or class of
employees shall have the right to determine who shall be
the representative of the craft or class for the purposes of
this Act.
Once the determination of an employee’s choice of representative, if
any, has been made, the National Mediation Board issues a written
certification of the outcome of its investigation. If a bargaining
representative is certified by the Board, the carrier is under a legally
enforceable obligation to treat with that representative for the purposes of
5
The Railway Labor Act at Fifty
the Act. Upon certification of the representative the role of the Board in
the representative matter is ended and failure of the carrier to recognize
the certification is a matter between the carrier and the certified
representative. The Supreme Court sanctioned this approach in a 1937
decision, and in a 1971 decision held that enforcement of the duty to
bargain imposed by Section 2, First of the Act is not a matter for the
National Mediation Board but rather for the Federal courts by innovative
discretionary use of the strike injunction, Section 4 of the Norris-La
Guardia Act notwithstanding.9
Basic Doctrines of NMB Administration of Representation Disputes:
Absolute Discretion—Limited Role
The realization that the courts defer to the National Mediation Board
in the exercise of its administrative authority, more than to most
administrative agencies, is fundamental to an understanding of
representation matters under the Act. One of the early leading cases in
administrative law established the principle that Congress in the Railway
Labor Act has left to the discretionary authority of the National
Mediation Board the determination of eligible voters, the determination
of craft or class bargaining units and the certification of representatives.
No judicial review was expressly authorized by Congress and “the
dispute was to reach its last terminal stage when the administrative
finding was made.”10 One leading authority, who disagrees with Justice
Douglas’ reasoning in Switchmen’s Union, nonetheless concedes that the
decision contradicts the “presumption of reviewability” which
accompanies the actions of most administrative agencies. 11 A plethora of
decisions by the Supreme Court and lower Federal courts since
Switchmen’s Union has adhered consistently to the view that the Board
has nonreviewable discretion in the performance of its duties in
representation disputes, even if Board action is allegedly arbitrary or
denies due process.12 A list of Federal court cases bearing on this issue is
found at the end of this chapter in Appendix A.
In 1958 the Supreme Court permitted judicial review of a
certification issued by the National Labor Relations Board under the
Labor-Management Relations Act, as amended, on the grounds that the
agency had exceeded its authority and there was no other adequate
remedy save the equity jurisdiction of the courts.13 Thereafter, a Federal
circuit court suggested that the Switchmen’s Union principles were
qualified by the Court’s finding in Leedom v. Kyne.14 In the ABNE case
in 1965 the Supreme Court distinguished Switchmen from Leedom by
pointing out that the former case involved the exercise by the National
6
Representation Disputes in the Railroad and Airline Industries
Mediation Board of nonreviewable discretionary authority while the
latter dealt with an alleged abuse of authority contrary to a specific
statutory prohibition.15 These issues were addressed again in U.S. v.
Feaster which held that, at least with respect to jurisdictional
determination, the decisions of the National Mediation Board are not
immune from all court review, on the theory that the issue in such a case
is not the manner in which the Board acts but whether it has power to act
at all. 16 The ABNE case cited supra also contained suggestions that ,
Board action may be reviewed to determine whether the Board has in
fact conducted the investigation of a representation dispute as required
by Section 2 Ninth of the Act. But there is no reported case in which
17
Board action has been reversed on the basis of inadequate investigation.
On balance, by the weight of authority and particularly in the light of the
decisions of the Court narrowly construing Leedom v. Kyne,18 it is still a
truism that decisions and determinations of the National Mediation
Board in resolving representation disputes under Section 2 Fourth and
Ninth are discretionary and essentially nonreviewable by the courts.
Although the courts have adopted a general hands-off policy in
representation matters under the Act, the Board itself, with rare
exceptions, has viewed its own role as narrowly circumscribed by the
express language and legislative intent of the statute. The most important
reason for this administrative restraint is that the Board interprets the Act
in Section 2 Fourth and Ninth as not authorizing it to create crafts or
classes of employees for bargaining purposes but as requiring the Board
“to recognize the crafts or classes as they gradually have become
established and defined by the employees and the carriers in their
relationships with one another.”19 This view was expounded by the
Board in another early case as follows:
The National Mediation Board is not authorized on
its own account to establish crafts or classes of
employees purely on the basis of logic for purposes of
representation and collective bargaining under the
Railway Labor Act. . . (In determining questions of craft
or class) the Board is compelled to establish by means of
investigation, hearings, and arguments what customs and
practices have been pursued by such employees and the
railroads in the designation and recognition of
representatives for collective bargaining purposes all as
supplemented by practical results in the form of labor
agreements duly consummated by such employee
representatives and carriers. 20
7
The Railway Labor Act at Fifty
Obviously the Board has the authority and the responsibility to
designate what employees may participate in a representation election.
Whether this is the same thing as establishing a craft or class may be a
matter of semantics. As a practical matter, however, the Board has
adhered rather consistently to the doctrine that it does not have wide
latitude in establishing bargaining units under the Act. Ironically, one of
the underlying supports for this position, cited by the Board with
approval in several cases, is the D.C. Circuit Court of Appeals decision
in Switchmen’s Union which was later reversed on jurisdictional grounds
by the Supreme Court. In that court of appeals case Justice Vinson
compared the authority of the National Labor Relations Board to
determine an appropriate bargaining unit to that of the National
Mediation Board to investigate disputes among employees of a craft or
class and concluded as follows:
We think it manifest from a comparison of the
related clauses of the two Acts that the NMB does not
enjoy the wide latitude of discretion which Congress
granted to the NLRB. The Railway Labor Act deals only
in terms of ‘craft or class;’ no other unit for collective
bargaining is considered. There is no authorization for
the Board to subdivide or sectionalize or to designate a
representative on any other basis than the craft or class
unit.21
Even though this suit later was ordered dismissed for want of
jurisdiction by the Supreme Court, the Board has adhered to the
principles enunciated therein. Thus, the anomalous sum total of the
Switchmen’s Union cases and their progeny may be stated as follows:
The National Mediation Board has a limited role in representation
matters under the Act but its discretion is virtually unlimited in the
performance of that role.
In addition to self-imposed restraint in determining crafts or classes,
the Board also had followed a policy of seeking accommodation and
consensus among parties in representation disputes. It is significant that
the Board had no specialized representation personnel and that mediators
were assigned to investigate and report to the Board in representation
disputes. Perhaps as a throwback to the U.S. Railroad Labor Board’s
mediation of representation disputes, the National Mediation Board had
by long established policy exercised its authority in designating voters
and establishing election rules “only when the parties to a representation
dispute (contesting employees or labor organizations but not carriers) fail
to agree among themselves as to who may participate in elections.”22
8
Representation Disputes in the Railroad and Airline Industries
Moreover, the Board had taken the position that the legislative mandates
regarding craft or class were restrictive of the Board when it was
compelled to resolve representation disputes but not of the parties if they
did so voluntarily. In this connection the NMB ruled that when it
becomes necessary for the Board to perform its duty under Section 2,
Ninth, it was required to determine the representative for the entire craft
or class and was not authorized to make a determination for a lesser unit.
But this restriction upon the Board did not preclude a carrier from
voluntarily recognizing a particular union as the representative of a group
or groups of employees which did not constitute a craft or class
cognizable by the Board. Further, the Board suggested it would defer to
these voluntary bargaining unit recognitions until such time as the
question was put in issue by a proper party petitioning for the Board’s
services in a representation dispute. 23 This principle apparently had its
genesis in a policy letter dated February 12, 1937, from the then
chairman of the National Mediation Board to an officer of the New York
Central Railroad stating as follows:
. . . Of course, all the parties can agree to divide up
thesystem for the purpose of separate agreements; but if
anyonedissents from that view then the determination
must be made (by the NMB) for the entire group and the
entire system.24
The corollary to this principle was set forth in another early
Boarddecision to the effect that certification of an organization or
individual as the representative of all of the employees in a craft or class
would not of itself “deprive the party of an opportunity to negotiate a
separateagreement or set of rules for any subdivision of these
employees.”25 The foregoing policy of forebearance in the determination
of eligible voters in deference to the parties’ agreement prevailed until
the early 1970’s. Since that time, the Board has adopted and followed a
more assertive policy in rejecting applications and playing an active role
in screening and approving lists of eligible voters. [See NMB Case No.
R-492 (Air France); NMB Case No. R-4341 (Eastern Air Lines); NMB
Case No. R-4502 (Aeromexico); NMB Case No. R-4567 (American
Airlines); NMB Case No. R-1483 (Penn Central Transportation Co.).]
Also the Board in recent cases has abandoned the practice of looking the
other way as the parties attempt to bargain away portions of the certified
craft or class. (See Alitalia Italy’s World Airline, NMB Case No. R4608; and Frontier Airlines, Inc., NMB Case No. R-4322.)
9
The Railway Labor Act at Fifty
Distinguishing the NMB from the NLRB
As described supra, the difference between the National Labor
Relations Board (NLRB) standard of “appropriate bargaining unit” and
the National Mediation Board’s (NMB) “craft or class” has long been
recognized. Under these respective legislative standards, the NLRB
clearly has been the more active agency in the representation field, both
in terms of volume and innovation of decision making.26 Over the last ten
years the NLRB annually handled approximately 15,000 representation
cases whereas the average annual case load of the NMB in representation
matters has been about 95.27
Another basic distinction between the respective statutes and their
administering agencies is that there are no listed unfair labor practices in
the Railway Labor Act as in Section 8 of the National Labor Relations
Act. Consequently, the NMB does not have the investigatory and
enforcement power to regulate employer, employee or union conduct
which violates rights guaranteed by the Railway Labor Act. However, it
is a Federal crime, punishable upon conviction by imprisonment for up to
six months and/or fines up to $20,000 for a carrier or its agents wilfully
to interfere with or coerce employee choice, impose a yellow-dog
contract, unilaterally change a collective bargaining agreement without
notice and negotiations or fail to post specified NMB notices.
Enforcement of these prohibitions is by the U.S. Attorney’s offices in the
various Federal judicial districts under the general direction of the
Attorney General of the United States. Such prosecution may be
instituted by application of any “duly designated representative” of the
complaining employees. But research has revealed only two cases of
successful prosecution under Section 2, Tenth in the entire 50-year
history of the Act.28
The rules and procedures of the NMB differ from those of the NLRB
in several important respects and these distinctions are detailed in
another section of this chapter. There are, in addition, several policy
differences worth noting. Under the NLRA an employer is an “interested
party” in representation cases and may, under certain circumstances,
initiate an investigation by petitioning the NLRB.29 The NMB reads
Section 2 of the Railway Labor Act as excluding the carrier as a party in
representation disputes under Section 2, Ninth. In the Board’s view the
“parties” in representation disputes among unrepresented employees are
“those who favor having a representative as opposed to those who are
either indifferent or are opposed to having a representative for the
purposes of the Act.” And where two or more labor organizations are
seeking to represent a craft or class “the parties, obviously, are the. . .
10
Representation Disputes in the Railroad and Airline Industries
labor organizations.”30 Under this reading of the Act, which the Board
consistently has applied since 1934, the carrier has no legal standing to
be heard in representation disputes. The carrier is notified by the Board
of every dispute concerning representation of its employees, however,
and is requested to furnish information to the Board in its investigation.
As a practical matter, moreover, the NMB nearly always seeks and
apparently considers the views of carriers in representation cases.
Usually the Board invites the carrier to present information and argument
when a hearing is held in an R-case investigation.
Under the stated policy of the NMB a change of representatives does
not alter or cancel any agreement made in behalf of the employees by the
previous representative. “The only effect of certification by the Board of
a new representative is that the employees have chosen other agents to
represent them in dealing with the management under the existing
agreement.” 31 Under this rationale, the superseding organization is bound
by moratorium clauses and substantive provisions of the agreement
negotiated by the preceding representative. Thus, absent a timely Section
6 notice, the carrier is under no obligation to bargain with the new
representative for matters settled under the prior agreement. This is in
direct contrast to the American Seating doctrine of the NLRB whereby
an employer is required, not just permitted, to bargain with a new
bargaining representative over rates of pay, hours and other matters
covered in the unexpired contract with the superseded union. 32 It should
be understood, however, that both the NMB and the NLRB distinguish
between these “superseding” cases and true “successor” cases where the
survivor of several merged or consolidated unions is viewed as a mere
continuation of the contracting party. In these latter cases, both agencies
hold that the successor assumes all the obligations of its predecessors and
no substantive changes are worked in the terms of the contract by these
internal union structural changes.33
In the converse situation, when a certified labor organization splits,
the Board afforded affected employees the opportunity to vote on the
question of whether certification should be transferred from the certified
organization to the newly formed organization. [See Hughes Air Corp.
d/b/a Hughes Airwest, NMB Case No. R-4012 (C-4371); Texas
International Airlines, NMB Case No. R-3745 (C-4372); Allegheny
Airlines, Inc., NMB Case No. R-3496 (C-4343); New York Airways,
NMB Case No. R-3605 (C-4386); and Alaska Airlines, Inc., NMB Case
No. R-3477 (C-4376).]
Unlike the NLRA, the Railway Labor Act contains no provisions
regarding jurisdictional disputes and the NMB has no express authority
11
The Railway Labor Act at Fifty
to resolve differences which arise when two labor organizations dispute
the allocation of certain work or job classifications.34 And the National
Mediation Board has long held that it will not resolve such disputes
under the guise of a representation dispute. Therefore, parties to such
jurisdictional work disputes must seek resolution through the negotiation
process or through arbitration of existing agreements in so-called “thirdparty” grievance proceedings.35 The details of these and other grievance
arbitration issues are analyzed by Jacob Seidenberg in Chapter VIII of
this volume.
NMB Determination of “Craft or Class”
Over the years since 1934 the National Mediation Board has issued
hundreds of certifications and gradually has formulated some criteria
applicable to the determination of crafts or classes as the unit for
employee representation. In its earliest published decisions the NMB
relied heavily on railroad industry custom, practice and existing
agreements as indicia of the “natural and voluntary” grouping of
employees for bargaining. In several of these cases the Board declared in
a classic non sequitur that because Section 3 of the Act established
arbitration tribunals on a national basis, “Congress intended as much
national uniformity as possible in the organization of the various classes
or crafts.”36 These early “criteria” were compatible with the Board’s
restrictive view of its role under Section 2, Ninth and had at least logical
consistency when only generally recognized railroad crafts or classes
were at issue. But when “practice, tradition and existing agreements” ran
counter to its judgments as to “craft unity,” the NMB was not reluctant to
take a more active role in designating crafts or classes. The record is
clear that as between “industrial” or “craft” type unionism, the NMB
consistently favored the latter even in the face of contrary long-standing
voluntary groupings of employees. This preference surfaced in a series of
electric railway cases when the Amalgamated Association of Street,
Electric Railway and Motor Coach Employees of America lost case after
case for industrial type units, notwithstanding 20 and 30 years of
bargaining history on that basis. In these cases the Board upheld the
petitions of raiding craft unions and voted the employees by traditional
steam railroad crafts or classes. In some sense, this was an indication of
what was to come after the Act was extended to cover the airlines
industry and the Board was required to determine crafts or classes among
those employees. A later section in this chapter details the manner in
which the steam railroad clerical class or craft was imposed on the
airlines industry. In any event, these electric railway cases marked a
12
Representation Disputes in the Railroad and Airline Industries
modification of the Board’s reliance on employees’ past bargaining
groupings as the primary evidence of craft or class. Thereafter bargaining
history and existing agreements were treated as relevant but not
determinative factors. Also, the legal and semantic fiction that the Board
merely discovers and recognizes crafts or classes already established by
the employees was debunked implicitly and expressly in these cases, to
wit: “Just because the Act does not define craft or class... it does not
follow that. . . the Board must not determine questions of craft or class.
On the contrary it is compelled to do so in order to establish an eligible
list in disputed cases . . .” 37 The notion of NMB restraint and reluctance
to impose craft or class judgments predominates Board decisions to this
day. But it should be recognized that, as a practical matter, distinctions
between “creating” crafts or classes and “designating” eligible voters
in a craft or class determination are mere exercises in semantics.
Occasionally even the Board seems to concede that this doctrine is a
sophism: “In the investigations of representation disputes the law
authorizes the Board to conduct elections and designate who shall
participate in such elections and specifies that representation shall be
determined by craft or class. Thus, in making such designations the
Board determines the particular occupations in the various crafts or
classes.”38
Upon review of hundreds of NMB R-case determinations it is
possible to articulate several criteria which the Board utilizes in resolving
craft or class questions. But this statement must be accompanied by the
caveat that no one factor is always controlling and the emphasis upon
one or another varies from case to case. It appears that where there is a
history of organization and prior agreements these will be weighed
heavily, unless they run counter to “generally recognized craft or class
lines” as originally developed in the steam railroad industry and carried
forward in Board precedents. In the absence of such history of
organization and precedent the emphasis generally is placed upon duties
and work content as well as “community of interest between jobs.” Thus,
the Board describes the standards by which it determines craft or class
issues as follows:
In resolving such issues, the particular facts
involved, as developed during the Board’s investigation
and/or hearing, often requires a review of certain
principles or standards which the Board has consistently
been guided by in previous determinations. These
standards are summarized as follows:
13
The Railway Labor Act at Fifty
1. The composition and relative permanency of
employee groupings along craft or class lines:
(a) For carriers generally;
(b) On the individual carrier involved.
2. The extent and effectiveness of past collective
bargaining agreements:
(a) For carriers generally;
(b) On the individual carrier involved.
3. The functions, duties, responsibilities and general
nature of the work performed by the employees.
4. The community of interest between jobs.
39
5. Past decisions of the Board on the issues involved.
One historical factor in railroad employee groupings which has never
been credited by the NMB in its craft or class determinations is racial
discrimination. There can be no doubt that most of the major railroad
unions had institutionalized racial discrimination in their internal
structures and collective bargaining agreements long before 1934.40
Board policy on this issue was laid down in a letter from the Executive
Secretary dated December 1, 1936, to a union seeking determination of a
representation dispute among hostlers:
The Board has given consideration to the report of
the investigator ... and has directed me to advise you that
it cannot accept an invocation involving only white
employees of a craft or class.41
The Board has therefore treated as prima facie invalid applications
for a racial division of employees and has rejected arguments to divide
crafts or classes on occupational lines which reflected and perpetuated
racial discrimination.42 Some scholars have stated that the Board’s policy
merely-concealed the underlying evils in the union structure and
bargaining principles. The suggestion that the NMB should have certified
unions formed by black employees as a means of reversing racial
discrimination falls of its own weight.43 Whether the NMB might have
affirmatively promoted racial equality by the discretionary withholding
of its mediation services or by the revocation of certifications held by
racially discriminatory unions is, however, a subject of fair debate in
terms of authority and responsibility.44
NMB Determination of “Carriers”
Occasionally in a representation dispute a controversy develops
regarding the status of the employer. These issues ordinarily are one of
two types: (1) Whether the employer is in fact a “carrier” for purposes of
14
Representation Disputes in the Railroad and Airline Industries
the law and therefore subject to the NMB’s authority, or (2) Whether the
employee unit sought is for the “entire craft or class,” i.e., “systemwide,” or for a larger or smaller unit. In determining the first issue the
Board is relatively constrained by express statutory definitions. Title I
defines railroad carriers by reference to the Interstate Commerce Act and
Title II extends the Railway Labor Act to “every common carrier by air
engaged in interstate or foreign commerce, and every carrier by air
transporting mail for or under contract with the United States
Government.” It should be noted that airline jurisdiction of the Board
does not extend to purely intrastate operations where no U.S. mail is
transported, but no similar geographic limitation applies to rail
45
operations. At the other extreme, the Board has held since 1934 that its
authority over international carriers does not transcend the territorial
boundaries of the United States and the Board will vote only employees
actually working in the United States or its territories.46 More frequently
the question of whether an employer is a “carrier” arises in cases of
subsidiary enterprises owned or controlled by businesses which
concededly are carriers. In these cases, whether involving air or rail
transportation, the first line of inquiry is whether the subsidiary is
“engaged in transportation.” Assuming this threshold question is
answered affirmatively, the Board describes its test of “carrier” status of
the subsidiary as follows:
It is the opinion of the Board that the appropriate test
for Board jurisdiction in cases where a subsidiary
operation is wholly owned by a carrier concededly
covered by the Railway Labor Act is the degree of
integration between the activities of the subsidiary
enterprise and its parent. Factors indicative of such
integration would include the degree of commonality in
the employment terms and conditions of the work forces
involved, as well as the degree of autonomous direction
of its own operations by the subsidiary. In this age of
corporate conglomeration, the bare fact of ownership,
standing alone, is not determinative of the jurisdictional
47
question.
In the more rarely encountered converse of this situation, the Board
described its standard for determining who is the employer where a noncarrier company provides services to a conceded carrier, as follows:
The service agreements between the various air
carriers and the Company fulfill, in part, the air carriers
responsibilities under the Federal Aviation Act, as
15
The Railway Labor Act at Fifty
amended by the Antihi-jacking Act of 1974, 49 U.S.C. §
1356(a). Here there is the necessary cooperation between
the Company and the involved air carriers, and between
the employees of the Company and the employees of the
air carriers. In such situations, there is often an
“interface” between the employees of the contracting
company and the materials and equipment of its air
carrier customers. When there exists a high degree of
interface between the two, the Board must determine
whether the carrier or carriers do* in fact have the
authority to “supervise and direct” the manner of
48
rendition of the contracted employees’ services.
When the issue is framed in terms of the proper size of the carrier’s
craft or class, the Board requires single representation for each craft or
class on each carrier, i.e., “system-wide,” elections. But on this issue, as
with other details of representation elections, the Board has indicated a
willingness to go along with the parties even when, if pressed, it would
decide differently:
In the interest of promoting industrial harmony the
Board has not been inclined to raise such questions (of
what constitutes a carrier) on its own motion . . . where
applications embrace what has “usually been considered
to be a carrier” in the past. It is only when the parties are
in dispute on such questions that the Board is called
upon to determine such issues.49
Aside from such situations and a few other expressly “nonprecedent” determinations the Board consistently has refused to certify
less than a system-wide craft or class.50
The issue of the scope of a carrier’s operations usually arises in the
context of mergers and acquisitions involving recognized carriers. When
pressed to decide the issue in the railroad industry, the Board holds that
when a carrier reports separately to the Interstate Commerce
Commission and keeps its own payrolls and seniority rosters, it is a
separate “carrier” as defined by the Railway Labor Act and its employees
are entitled (and required) to be represented separately from those of
other carriers who may be connected with the same railroad system.51
Single-minded emphasis on separate ICC reporting led the Board in one
case to the ridiculous extreme of denying an election for 17 clerks all
performing identical work in a single location for six railroads, each of
which was wholly owned by U.S. Steel Corporation, because in the
Board’s judgment each of the captive railroads was a separate “carrier.”52
16
Representation Disputes in the Railroad and Airline Industries
With respect to airline cases, the problem of merger and succession
appears less frequently but in the one reported case the Board states its
policy as follows:
Where an issue arises relating to “carrier status” the
Board must rely upon evidence which would indicate
operational integration of the carriers involved, on a case
by case basis . . . The Board must of necessity take into
account, among other factors, whether or not employees
of the carrier or carriers have in fact been merged and
are subject to the direction of a single. management
having the sole authority to supervise and direct the
53
manner of rendition of services of those employees.
NMB Determination of “Employees”
The Railway Labor Act expressly includes in the definition of
employee every person in the service of a carrier who performs the work
of a “subordinate official.” This is in direct contrast to the NLRA which
excludes from the definition of employee “any individual employed as a
supervisor.” 54 Thus, many foremen and others of the supervisory staff are
considered to be employees under the Act, with the attendant rights of
self-organization, representation and freedom from interference and
coercion by employers. One of the problems which frequently arises in
representation disputes is whether the individuals involved are
“employees” as defined by the Act or “officials” and thus beyond the
Act’s coverage. In the railroad industry the general guides to such
determination since 1920 have been orders of the Interstate Commerce
Commission defining the work, respectively, of employees/subordinate
officials and officials. At the time the Railway Labor Act was enacted
the ICC order of February 5, 1924, known as “Ex Parte 72,” was the only
order in effect defining work as that of employees or subordinate
officials of rail carriers. 55 It perhaps goes without saying, but the ICC has
never issued any orders defining the work of employees or subordinate
officials of common carriers by air. In the railroad industry, then, the
definition or primary determination of employee/subordinate official
status is in the Ex Parte 72 ICC classifications. But the NMB performs
the administrative duty of applying the classifications of the ICC in
individual cases using as a norm the decisions promulgated by the ICC.56
In the airline cases under Title II the ICC decisions are not directly
controlling but they are considered by the NMB. In the first major
subordinate official case in the airline industry the Board, with judicial
approval, held that it had jurisdiction to decide such issues and not the
17
The Railway Labor Act at Fifty
ICC. Upon review of the legislative intent behind Title II, which
extended the provisions of the Act to cover air carriers and employees,
the Board said:
It is true that Section 201 does not say in so many
words that the Mediation Board shall have power to
determine who is an employee or subordinate official,
but the Board has such jurisdiction by necessary
implication . . . Even assuming that. . . Title I confines
the jurisdiction of the Mediation Board in cases arising
under Title I to employees recognized as such by the
ICC, and thereby fixes a rigid definition for purposes of
proceedings under Title I, there is no such definition in
Section 201. . . As a matter of commonsense and as a
matter of law, it must be presumed, in the absence of a
contrary showing, that Congress intended to leave the
matter to the agency which administers the particular
statute. 57
Given the more active role of the Board and the relative lack of
precedents, it is not surprising that most of the leading cases on
subordinate officials come from the airline industry. Such standards as
have evolved are found in these cases. The Northwest Airline
jurisdictional determination quoted supra was the product of a bifurcated
proceeding in which the Board invited the participation of the major
scheduled air carriers and the major airline unions. Having determined its
authority and jurisdiction, the Board proceeded to a second hearing on
the question of whether the work of the individuals involved (mechanical
department foremen and supervisors of mechanics) was that of an
“official” or of an “employee or subordinate official.” The Board
analyzed at length many features of the jobs at issue, e.g., hours of work;
time and attendance; method of pay and amount of compensation;
authority to hire, fire, discipline and direct employees; power to resolve
grievances; ability to affect company policy; and availability of an office
with secretarial help. Having proceeded that far, however, the Board
inexplicably backed away from a solid decision as to whether the
individuals were employees or whether they were subordinate officials.
Rather, in a preposterous ruling, the Board held that an earlier case of the
New York State Labor Relations Board in the printing industry “stated
the fundamental legal and practical considerations which are
determinative of the problem” in the airline industry.58 Clearly relying
upon that state agency decision the NMB expressly refused to “draw a
line” or “adopt general standard definitions of official and subordinate
18
Representation Disputes in the Railroad and Airline Industries
official” in the airline industry. Rather, the Board contented itself with an
ad hoc “conclusion” that the work performed by the foremen and
supervisors was that of an employee or subordinate official and that “in
their relationship with their employer they are entitled to the protection
of the Act.” The Board ended this obtuse determination with the phrase:
“This conclusion should not be construed as a craft or class
determination for the personnel affected thereby.”59 Something of this
penchant for jargon, lack of specificity and inconsistency permeates the
remainder of the Board’s subordinate official determinations in the
airline industry. For example, in a decision on flight instructors, which
reversed its own earlier holding on the same carrier for the same
employees, the Board stated as follows:
The Board in determining whether or not a certain
group of individuals comes within the meaning of
employee or subordinate official often uses an ad hoc
approach. This is due to the fact that in the changing
concepts of modern management control and direction of
the business enterprise have been greatly diluted and
diffused. Thus, it would be unfair to rely upon one or
two superficial criteria in ascribing the title of
“management” to any particular individual or group of
individuals.60
Some relief from the studied ambiguity of these earlier decisions
may be foreshadowed by yet another Pan American case in which the
Board set forth the most lucid listing to date of its criteria in subordinate
official cases:
Specifically, the Board must consider various
individual elements and factors which might not be
decisive if considered separately but considered
cumulatively would remove a particular position from
the status of an employee or subordinate official. These
elements include the authority or responsibility as to the
employment or discharge of employees; the authority to
definitively resolve grievances; and the authority and
method used to direct the manner of work done by
subordinates. Other factors that should be considered
involve the employment relationship of the individual
with the carrier; his method of payment; his participation
in benefits available to subordinate officials and
employees; his voice in the inner council of
management; the extent to which he participates in the
19
The Railway Labor Act at Fifty
formulation of general policy; and the extent of his
authority to bind his principal in dealings with outside
parties. These are the basic criteria that must be
considered in determining the relative rank of the
position in the echelon of official management.61
In any event, a comparison of the more recent cases with the original
Northwest Airlines determination suggests that the presumptions and
evidentiary burden have shifted with time. It seems clear that the earlier
decisions tilted toward the union seeking employee or subordinate
official status for supervisory personnel and a guiding principle was the
presumption that these individuals had a “fundamental right to organize
and bargain collectively. But in a series of cases commencing in 1968 the
Board dismissed petitions of several organizations for supervisory airline
personnel on the stated ground that “the evidence before it in the instant
case is not sufficient to warrant a finding that the work (in question) is
that of subordinate officials or employees under the Act.”62 Implicit in
these cases is the holding that the organization must carry the burden of
proof when the carrier puts the status of individuals in question by
asserting that they are managers who do not “perform work as an
employee or subordinate official.”
Procedural Aspects of Representation Disputes Under the Act
The NMB and Rule-Making
The Board’s policies and procedures in representation disputes have
been developed in case adjudication since 1934. Although the Board in
1947, 1954 and 1967 published official rules of procedure pursuant to
Section 3(a) of the Administrative Procedure Act, there is no reason to
assume that the Board may not continue to announce new principles in
its decisions, as well as through rule-making. The Supreme Court in a
recent decision ruled that the NLRB’s change of some long-standing
principles did not require a rule-making proceeding but was done
appropriately in a case decision. Presumably the Court’s holding on this
question applies with at least equal force to procedural decisions of the
NMB:
. . . although there may be situations where the
Board’s reliance on adjudication would amount to an
abuse of discretion or a violation of the Act, [the Board
is not precluded from announcing new principles in an
adjudication proceeding and] the choice between rule20
Representation Disputes in the Railroad and Airline Industries
making and adjudication lies in the first instance within
the “Board’s discretion.63
Indeed, a reading of the Bell Aerospace decision together with the
line of cases originating with Switchmen’s Union suggests that the NMB
is less subject to judicial review of its procedural and substantive
representation rule, whether decisional or rule-making in origin. In any
event, the current published rules of the NMB are set forth in Title 29,
Code of Federal Regulations, Chapter 10, Part 1200, with the
representation procedure appearing at Parts 1203 and 1206.
Invoking NMB Representation Services
Attached as Appendix B at the end of the chapter is a chart showing
NMB representation case procedures. Application for the services of the
Board under Section 2, Ninth, are made on a printed form available from
the NMB (Form NMB-3, Application for Investigation of Representation
Dispute). The form may be filed by any individual or labor organization
and should be signed by an authorized officer. As noted supra, carriers
are not considered “parties” under the Railway Labor Act and may not
initiate investigation of a representation dispute. The applicant must
specifically describe the craft or class of employees involved; the name
of the invoking organization; the name of any incumbent representative;
the estimated number of employees in the specified craft or class; and the
number of signed authorizations submitted by employees.64 Upon
receipt, the Board staff makes a prima facie review of the application for
appropriate craft or class designation, possible applicability of bar rules,
and sufficiency of the alleged showing of interest. Unless the application
is improper on its face it is given a docket number and assigned to one of
the mediators for field investigation.
Application—Bar Rules
There are several sets of circumstances under which the Board will
refuse to accept an application for its services. The manifest purpose of
these so-called “bar rules” is to promote stability conducive to the
establishment of a bargaining relationship between representatives and
carriers, and to prevent undue disruption of employees in the work place.
Under its version of a “certification bar rule” the Board will not entertain
an application for two (2) years from the date of issuance of a
certification of representative for the same craft or class of employees on
the same carrier. 65 However, a voluntary recognition does not have the
same application bar effect as a prior certification, and the Board will
investigate and conduct an election upon proper application any time
21
The Railway Labor Act at Fifty
after a voluntary recognition. 66 The NMB also recognizes a qualified
“election bar” rule. It will not accept an application or conduct a repeat
election within one (1) year of an election in which less than a majority
of eligible voters participated.67 Similarly, the Board will not accept an
application within one (1) year of the dismissal of a prior docketed
application for lack of a sufficient showing of interest. 68 Nor will an
application be accepted where the applicant has withdrawn the same
docketed application within the past year. 69 In each of these foregoing
situations, the craft or class of employees and the carrier must have been
the same for the prior case to operate as a bar. Also it is most important
to emphasize that none of the foregoing bar rules apply unless there is an
70
incumbent representative of the employees in the craft or class.
It should be noted that the NMB does not recognize a “contract-bar
rule” whereby a current valid contract would prevent an election for a
certain period of time.71 This is consistent with the policy whereby a
superseding union inherits the agreement of its predecessor. Both of
these principles seem to flow from the railroad industry practice of nonexpiration of agreements, which is described elsewhere in this volume by
Beatrice Burgoon and Charles Rehmus.
As noted supra, the NMB does not decide jurisdictional work
assignment disputes under the guise of a representation case.72 But the
Board will not dismiss an application or refuse to investigate a
representation dispute in the face of allegations of “raiding” or violation
of the organizational jurisdiction and charter of one union by another.
The NMB has adopted a deferral policy whereby it will suspend handling
of such a petition for up to 30 days upon written notification that two or
more of the competing labor organizations are signatories to the AFLCIO No-Raiding Pact and one of them has appealed a raiding claim to
the AFL-CIO Jurisdictional Umpire. 73 At the expiration of this 30-day
period, however, the Board will resume investigation of the case if it has
not been withdrawn by the petitioning organization. The NMB, like the
NLRB, will not dismiss an application even where the Umpire has ruled
that the application violated the No-Raiding Pact. The Board’s policy in
this connection is as follows:
We do not believe that agreements consummated by
private parties, regardless of the good intentions of the
makers, can be raised to the status of amending the clear
intentions of Congressional legislation. The NMB has a
duty to process and determine the representation desires
of employees in a proper craft or class, regardless of
raiding by one union.74
22
Representation Disputes in the Railroad and Airline Industries
Showing of Interest
The application for Board representation services must be
accompanied by evidence that a sufficient proportion of employees in the
craft or class are interested in having a representation question resolved
to warrant a conclusion that a “representation dispute” exists. There is no
specific requirement as to format for such showing but the almost
universal evidence of interest submitted in these cases comprises union
authorization cards (“A-cards”) signed by the individual employees.
There is no NMB regulation regarding the form of designation and
presumably the card may be a regular union membership card, an
application for membership, an authorization for union dues checkoff, or
a card explicitly designating the union as the signer’s exclusive
bargaining agent. So-called “dual purpose cards” authorizing a
bargaining agent and expressing interest in an election also are
acceptable, without consid-. eration of the possible ambiguities therein.75
Each of the submitted A-cards, however, must be both “valid and
proved.” In order to be “valid” the card must be dated and signed in the
employee’s own handwriting or by his witnessed mark; and the cards can
be dated no more than one (1) year before the date of the application for
representation services. “Stale” cards more than one year old will not be
accepted. 76 The cards are “proved” by Board check and verification as to
date, signature and employment status of the signer.
The rules of the NMB require a greater or lesser percentage of valid
and proved A-cards depending upon whether the employees in the craft
or class are represented or unrepresented. 77 When the employees are not
represented and are not covered by a valid existing contract, a showing
from 35 percent of the employees in the craft or class is required.
However, when there is an incumbent representative, the challenger must
make a showing of proved authorizations “from at least a majority” (i.e.,
50 percent plus one) of the employees in the craft or class. In either case,
an intervenor must produce proved authorizations from at least 35
percent of the employees in order to warrant placing the name of the
intervenor on the ballot.78
There is no stated requirement that an incumbent representative of a
full craft or class make such a showing of interest in order to participate
in an election. But in one case the Board seemed to approve a
requirement that a list of members be submitted by an incumbent in order
“to establish their (sic) present representation of a majority of the
employees involved in the dispute.” It is not clear from the case to what
extent that holding was related to the incumbent’s position as the
23
The Railway Labor Act at Fifty
voluntarily recognized representative of “less than the entire craft or
class.”79
The policy of the Board .with respect to attempted revocations of Acards by employees differs dramatically from that of the NLRB and is set
forth in a policy letter of the NMB as follows:
Employee revocations of signed authorization cards
should be submitted to an applicant organization rather
than to this Board for the reason that a determination
must be made by such applicant organization as to
whether, on the basis of such revocations, it desires to
have this Board proceed with the investigation.
Accordingly, unless the organization which has
submitted the authorizations recognizes the revocation
and consents to the withdrawal of its petition, this Board
will take no official cognizance of the revocations in
determining whether an election shall be conducted,
except where there are circumstances which the Board
considers sufficient to warrant a variation from this
general policy. 80
Research reveals no case in which “circumstances were sufficient to
warrant” Board deviation from this policy.
Method of Determining Employee Choice
After reviewing the report of the mediator’s field investigation, the
NMB either dismisses an application or finds that a representation
dispute does exist and orders a determination of the choice of a majority
of the employees. Ordinarily an election is held, but the Board is
authorized to use any appropriate means and a check of A-cards
occasionally is utilized. If an election is used, the Act requires that it be
by secret ballot. Whenever possible, a mail ballot election is conducted
by a field mediator with each eligible voter being sent a ballot along with
an instruction sheet explaining the procedures for a secret ballot election.
When this is impractical, a ballot box election is conducted by a field
mediator at the work site of the employees. In pure ballot box elections
the results usually are tabulated by the mediator immediately upon
closing of the polls. When the election is by mail the ballots are
sequestered and retained by the Postmaster at a designated post office
until collected by the Board agents. Parties to the election may have an
observer present at the tabulation of the votes.81
The ballot used by the NMB in conducting representation elections is
unique in several respects. There is no specific “no union” designation on
24
Representation Disputes in the Railroad and Airline Industries
NMB ballots. Despite repeated efforts to compel inclusion of a printed
“no union” option on the ballot, the Board with Court approval has
refused to amend its ballot format in this respect. However, it has
adopted clarifying instructions to voters explaining some of its ballot
tabulation policies.82 Another noteworthy feature of the ballot is that in
addition to the names of the contesting organizations or individuals, it
contains a “write-in” slot, i.e., a blank space in which the voter may
indicate his desire to be represented by any other organization or
individual. 83
The foregoing ballot format policies are related to another unique
Board policy relative to the tabulation of votes. The NMB, as a matter of
long-standing policy, has refused to certify a representative in an election
unless a majority of the eligible voters participated by casting valid
ballots. Therefore, the Board declines to issue its certification when only
a minority of the eligible voters participated in the election,
notwithstanding that a majority of those who participated may have
voted for a particular representative.84 Thus, the failure or refusal of an
eligible voter to participate in an NMB-conducted election is the
functional equivalent of a “no union” vote.
For most of its history, the Board sought a mediated approach to
election details and ordinarily went along with arrangements mutually
acceptable to the parties—even when contrary to Board precedent. Thus,
in the absence of objections by any party to the dispute the Board would
vote just about anybody in any craft or class. When these aberrant cases
led to certification the Board commonly appended a caveat that the
certification “does not establish a precedent or preclude an ultimate
determination in any future representation dispute as to the proper
classification of these employees for representation purposes.”85
In more recent years the Board, using a fairly consistent set of
guidelines, has affirmatively determined these election details,
notwithstanding the desires of the parties to a particular dispute to the
contrary. When pressed to a decision on the eligibility of particular
voters the Board does follow a fairly consistent set of guidelines. A
common eligibility problem in railroad operating employee disputes
before the 1968 merger resulting in the United Transportation Union
(UTU) was that of the dual service employee. This issue may again
become prevalent as representation disputes between the UTU and the
Brotherhood of Locomotive Engineers (BLE) increase. The problem
arises because of the traditional ebb and flow of employees from service
as firemen to engineers, from brakemen to conductors, from yardmen to
yardmasters. Also on some carriers trainmen hold seniority in both road
25
The Railway Labor Act at Fifty
and yard service. In order to determine whether an employee is eligible
to vote in a representation election regarding one of these crafts or
classes and to prevent “double-voting,” the Board conducts a check to
determine the “preponderance of service” of the employee for a
reasonable period of time before the election date.86 Thus, the Board
establishes a “checking period” and the field mediator reviews
employment records to determine if, on the basis of his duties during that
period, the employee is an eligible voter in the craft or class. It should be
noted that the preponderance check has significance on the question of
the validity of an individual’s A-card for showing of interest purposes as
well as on the question of his eligibility to vote in any election. Also, it is
Board policy that the last day of the checking period operates as a “cutoff date” for eligibility and employees hired after that date may not
participate in the election.87
As a general rule, the Board has followed an early court case and
held that furloughed employees “who retain seniority rights and other
privileges and who have certain duties under a collective bargaining
agreement” are employees for purposes of the Act.88 Thus, the Board
consistently holds that furloughed or “laid-off” employees are eligible to
vote in elections in the craft or class to which they were last regularly
assigned. In one case the Board applied the same rule to employees on
“authorized leave of absence” and appeared to use the concepts of
furlough and authorized leave interchangeably.89 A review of the cases
and the articulated rules reveals no policy statement regarding striking
employees but it appears that strikers are treated similarly to dischargees
for voting purposes. With respect to discharged employees, the Board
permits those with pending grievance claims seeking reinstatement by an
adjustment board or court to participate in an election among the craft or
class in which they were employed at the time of dismissal. But this right
is not extended to employees whose cases have been adversely
determined and who are seeking leniency reinstatements. 90
When ballots are challenged or the status of a potential voter is put in
issue, ordinarily the Board permits the casting of the ballot but then
impounds the ballot and it is not counted until determinations are made
regarding its validity. Occasionally the conduct of an entire election is
challenged and all the ballots are impounded. As noted supra, the Board
has no explicit authority to resolve unfair labor practices, and criminal
charges of election interference must be prosecuted by the U.S. Attorney.
But the Board does have the authority to declare an election null and
void and order a rerun election when circumstances convince it that the
employees’ choice in the first election was interfered with, coerced or
26
Representation Disputes in the Railroad and Airline Industries
otherwise improperly affected, whether by carriers or labor
organizations.91 In one reported decision the Board inexplicably limited
this review power to conduct which is “either threatened or practiced
while an election is in progress.” Thus, the Board in that case refused
even to consider allegations of carrier dominance and interference during
a pre-election period and confined its review to actual electioneering
practices.92 Contrasted with this inordinately narrow view is the Board’s
decision in a 1962 case to invalidate an election due to prejudicial preelection conduct by the Carrier which substantially impaired the
employees’ freedom of choice. (Allegheny Airlines, Inc., NMB Case No.
R-3470.)
Absent the necessity of a rerun, the election will result in a
certification of the representative who receives a majority of the valid
votes cast, provided a majority of the employees eligible to participate
did cast valid ballots. If a majority of the employees eligible to
participate fail to do so, then a dismissal of the representation petition
will result, notwithstanding the results of the election. If a majority of the
employees participate but, of this number, no organization or individual
receives a majority of the legal votes cast (including write-ins), then a
run-off election may be held. A run-off may also be held when such an
election results in a tie vote. In either case, the run-off is not automatic
but must be requested in writing by “one entitled to appear on the ballot
in a run-off election,” within ten (10) days of the report of results from
the first election.93 The ballot is modified for a run-off election so that
only the top two vote getters from the first election appear. In addition,
the write-in space is eliminated from the run-off ballot so that the only
choice for the employees is which of two representatives they wish to
have as their own. The same eligibility list prevails in the run-off election
as in the first election, with the exception of those employees no longer
employed in the craft or class.94
Interpretations, Clarifications and Additions to a Certification
The Railway Labor Act has no provisions relative to interpretations,
clarifications or amendments of certifications once they are issued.
Unlike the NLRB, the NMB has no express rules permitting petitions for
clarification. Nor does the NMB hold that it has authority to police its
certifications sua sponte by reconsideration or revocation.”95 The
National Mediation Board has, however, undertaken interpretations of
certifications upon application by the certified representative. Upon
receipt of the first of these “petitions for interpretations” in 1957 the
Board stated: “The request . . . posed a completely novel question to the
27
The Railway Labor Act at Fifty
Board, as the.Board has never had a request of this nature before it since
operations were commenced under the amended Act in 1934.” Novelty
notwithstanding, the Board did undertake an interpretation hearing and
did issue findings which “clarified” its earlier certification in two
reported cases. 96
A variation on the clarification procedure has been practiced by the
Board in prior years under the rubric of “addendum to certification.”
Under the addendum procedure the NMB reasoned that a group of
employees was part of an already certified class or craft, but had not
participated in the original election. The Board then ran a check of Acards signed by these employees and, upon verifying that a majority
97
wanted to be represented, amended the certification to cover them. In
recent years the Board has revived the addendum procedure, with
modifications, and now labels it “accretion.”
Also, under the accretion policy, which has been utilized more frequently
in airline than in railroad cases, the Board reasons that the composition
of a certificated craft or class may be altered subsequent to certification
by the addition of “new functional classifications.” Apparently this refers
to jobs which are products of technological advancements not existing at
the time the original certificate was issued. When a representation
dispute develops among the employees in such classifications, and the
balance of the craft or class is already represented, the Board may hold
an “accretion election.” In these situations the Board will vote just the
employees in the new classification in a modified “Globe-type”
maneuver. The sole issue recognized by the NMB in these cases is
whether the new employees “choose representation by the previously
certified representative of the large grouping or choose to remain without
representation for purposes of collective bargaining.”98 If an election or
A-card check shows that they wish to join the larger group, an “accretion
certification” will be issued amending the original certification; if not,
they must remain outside the bargaining unit, unrepresented, and not
subject to separate organization.
The Craft or Class Determination
The Meaning of Craft or Class
The concept which dominates and pervades the administration of
representation disputes under the Railway Labor Act is the notion of
“craft or class.” The term, “craft or class,” is nowhere defined in the
statute and, whether in the abstract or in the cold facts of a particular
case, it is not always easy to understand and apply. It appears that the
28
Representation Disputes in the Railroad and Airline Industries
Act’s non-definition of this central concept was intentional on the part of
the drafters. The craft or class terminology was added in Section 2,
Ninth, when the Act was amended in 1934. One of the principal authors
of the 1934 amendments was Transportation Coordinator and ICC
Commissioner Joseph Eastman who stated during Committee hearings
on the bill:
We thought of that, as to whether or not it was
necessary to define craft or class, but those are words
which have been used in labor parlance for a very long
time, and I think there would be no difficulty in
determining what is a craft or class of employees ... if
there are any disputes I think that the matter is
sufficiently covered by the provisions of the ninth
paragraph, which provides for the settlement of such
disputes, or rather, provides the tribunal which shall
have power to consider and determine such disputes . .
.99
It is obvious with hindsight that “long usage” in railroad labor
relations parlance was no guarantee against difficulties in class or craft
determinations either in that industry or later in the airline industry. In its
First Annual Report in 1935, the NMB commented:
(B) What is a craft or class?—The Railway Labor
Act does not define the terms “craft or class” in which
the majority is given the right to determine the
representation. Whether the terms are used
synonymously or whether a class comprises several
crafts or vice versa is not explained. In making rules to
govern elections and in designating the employees who
may participate in such elections, the Board in most
cases has been confronted with disputes as to whether
the employees involved constitute one class or craft, or
whether they are several distinct crafts for each of which
separate representatives are to be chosen by separate
majorities . . .
When first confronted with these problems, the
Board attempted to avoid any general ruling, but to
decide each case on the basis of the facts developed by
the investigation of that case. After some decisions had
been made, however, separating certain groups of
employees, insistent demands were made that the Board
follow the same rulings in subsequent cases, and other
29
The Railway Labor Act at Fifty
groups of employees within a class or craft insisted that
they too were entitled to separation as distinct crafts . .
.100
There was one early judicial attempt to define the words, “craft or
class,” by the lower court in the Switchman’s Unionca.se. Even though
that decision later was dismissed by the Supreme Court on jurisdic-tional
grounds, the comments of Justice Vinson are worth noting since they
subsequently were adopted by the Board itself:
. . . our underlying premise is that the term “craft”
has an accepted and established meaning both in the
popular understanding and in labor circles. It was left
undefined by the Act, as was its disjunctive partner.
While “craft” and “class” may not be synonymous as
used in the Act, this could only be because “class” may
be more comprehensive.
The term “craft” has been defined as “Those
engaged in any trade, taken collectively.” The term
“class” has been defined as “A group of individuals
ranked together as possessing common characteristics or
as having the same status.” The author of the bill, Mr.
Eastman, explained the term “craft or class,” as he had
used it, to the Congressional Committee, as “all of the
employees of the carrier, no matter in what shop they
were located, who did that particular kind of work.”
(Emphasis in original.)101
Since the Supreme Court’s decision in Switchman’s Union the
determination of crafts or classes has been the exclusive prerogative of
the NMB. Over the years the Board has decided hundreds of such issues,
ordinarily on an ad hoc basis. These decisions and determinations have
established precedents and some operational standards for use in
prospective cases. For the most part, however, these determinations deal
only with the immediate subject for adjudication and have not attempted
more general definitions of the phrase, “craft or class.”
From time to time the Board has attempted to define craft or class
negatively—in terms of what it is not. Thus, the NMB consistently has
held that “the craft or class” is not the functional equivalent of “an
appropriate bargaining unit” and that its own discretion to establish units
is more circumscribed than that of the NLRB.102 In this same vein, one
early railroad decision stated:
The craft or class for the purpose of designating
representatives under the Act and for bargaining is to be
30
Representation Disputes in the Railroad and Airline Industries
distinguished from classification of employees for other
purposes, such as that of the Interstate Commerce
Commission for its compensation reports. The
recognized crafts or classes of employees on the
railroads for representation and bargaining purposes
commonly differ from the grades and groups of the
Interstate Commerce Commission classification and
often include many of these grades and groups.103
Other examples of this definition by elimination exhibit one
consistent theme: a clear preference, whenever possible, of craft-type as
opposed to industrial-type organization of employees. Thus, with heavy
emphasis on Justice Vinson’s reasoning in Switchmen’s Union supra, the
Board has stated:
The words “craft or class” certainly imply something
specific as distinguished from a general collection of
employees related to each other only as employees of a
single carrier. It must be considered that Congress
employed the phrase “craft or class” in the usual and
ordinary sense and meaning of the words, as
distinguishing a group of employees who perform a
certain type of work from another group or groups who
perform other types of work.104
Nor has such preference been limited to railroad industry cases:
It therefore seems quite clear that it is the duty of the
Board to determine the representation desires of
employees on the basis of craft or class, rather than on
the basis of an overall industrial type of unit combining
many occupations which might in some instances be
preferred for various reasons by certain organizations
and managements.105
The vagueness of the terminology has proved frustrating even to the
Board, however, and on at least two occasions attempts were made to
define generically the elusive concept of craft or class. It is worth noting
that the Board distinguished, at least analytically, between railroad and
airline usage of the term:
1.
Railroads:
Analyzing the phrase “craft or class” (which the law
fixes as the unit for collective bargaining), it is to be
noted that there are two types of organization in the
railroad industry, one being the craft as ordinarily known
to trade unionism where definite provision is made in the
31
The Railway Labor Act at Fifty
rules and working agreements for the education and
development of apprentices and helpers. This type is
found more particularly in the shops engaged in
maintenance of equipment. All other railroad labor has
been in the past recognized and dealt with by
management in reasonably well-defined classes. 106
* * *
On the rail carriers of the Nation, crafts or classes
have been distinct and generally recognized for a great
many years. Two types of crafts or classes have been
developed historically on the railroads. First, those
which more nearly conform with the old craft guilds, and
are today quite closely restricted to employees in one
particular occupation . . . The second type of “crafts or
classes” on rail carriers combine into one group various
occupations which are all generally related to a
particular line of endeavor . . . This type of craft or class
has developed from a rather heterogeneous group of
varied individual occupations which are tied together by
a common overall bond of general purpose . . .107
2.
Airlines:
. . . a “craft or class” in the air transport industry
means a well-knit and cohesive occupational group
which has been developed over a period of years in the
course of general voluntary association of the employees
into collective bargaining units. The fact that a number
of rather well defined occupational groups may now be
covered in one working agreement is not conclusive
evidence that such coverage determines the “craft or
class” in that particular instance. Accordingly, it
becomes necessary to examine the occupational
groupings as they have emerged over a period of years in
the airline industry, and to determine whether such
groupings are uniform to the extent that they might now
be termed “crafts or classes” under the provisions of the
Railway Labor Act.108
As noted elsewhere in this chapter, the Board espouses the legal
fiction that it may not create or designate crafts or classes. In fact, it has
done both on occasion over the years. The operative consideration has
been whether there is, in the judgment of the Board, an “established” or
“customary” craft or class in existence. If so, the NMB has bowed to
32
Representation Disputes in the Railroad and Airline Industries
history and bargaining practice, so long as the traditional unit is not an
industrial type grouping. By and large these “generally recognized crafts
or classes” have been found to exist in the railroad industry. This is not
surprising in the light of the long history of organization and bargaining,
as well as the standardizing influence of governmental control during
World War I. On the other hand, there was no history or pattern of
organization among airline employees in 1936 when the Act was
extended to cover them. So far as legislative history shows, no
consideration whatever was given to the fact that presumptions of welldeveloped “crafts or classes” were being extended to an industry which
had none. 109 It is not surprising, therefore, that most of the controversial
representation activity under the Act since 1945 has been generated by
airline industry cases. It may be that railroad cases will again assume
significant proportions, however, due to representation disputes
engendered by the major industry restructuring which resulted in
Consolidated Rail Corporation (ConRail). 110
Railroad Crafts or Classes
The chronicle of railroad employee organization is set forth in detail
in another section of this chapter. As indicated, railroad craft unions
began organizing and representing the three major functional employee
groupings—operating, non-operating and shopcraft—during the latter
part of the 19th Century. As of this writing, and indeed by 1934, custom,
tradition, bargaining practices and governmental administration yielded
clearly defined and almost universally accepted groups of employees.
These “generally recognized crafts or classes” were described by the
Board in a 1945 decision as follows:
Two types of crafts or classes have developed
historically on the railroads. First, those which more
nearly conform with the old craft guilds and are today
quite closely restricted to employees in one particular
occupation. Examples of these groups are the generally
recognized and separate crafts or classes of locomotive
engineers, locomotive firemen, road conductors, road
trainmen, yardmen (switchmen), train dispatchers, and in
the shops, the seven separate crafts of machinists, boilermakers, blacksmiths, sheet metal workers and pipe
fitters, electrical workers, carmen, each with their
helpers and apprentices, and the craft of stationary
firemen, oilers, and shop laborers.
* * *
33
The Railway Labor Act at Fifty
The second type of crafts and classes combine into
one group various occupations which all are generally
related to a particular line of endeavor. Examples of this
type are the communications craft or class, consisting of
employees known as telegraphers, telephoners, teletype
operators, agents, towermen, block operators, and others
handling communications work. Another example is the
craft or class of maintenance of way employees, which
includes all persons engaged in the maintenance or
construction of right of way, tracks, and buildings, and
includes such occupations as track labor, bridge and
building mechanics and helpers, foremen of these
groups, operators of roadway machines such as ditchers,
pile drivers, etc., track motor car mechanics, crossing
watchmen; and others.”111
Also included in this “second type” of craft or class was one which is
known in the railroad industry as the craft or class of Clerical, Office,
Station and Storehouse Employees. This craft or class, which has figured
prominently in several railroad representation disputes and has been a
constant source of controversy in airline cases, has been described by the
Board as follows:
The craft or class of clerical, office, station, and
storehouse employees, as presently established on the
railroads, is chiefly based upon the scope of an
agreement, effective January 1, 1920, between the BRC
and the Director General of Railroads who at that time
operated all railroads for the Government. The scope of
that agreement was as follows:
Employees affected—Rule 1. These rules shall
govern the hours of service and working conditions of
the following employees on railroads in Federal
operation, subject to the exceptions noted below:
(1) Clerks.
(2) Other office and station employees, such as office
boys, train announcers, gatemen, checkers, baggage
and parcel room employees, train and engine crew
callers, operators of office or station equipment
devices, telephone switchboard operators, elevator
operators, office, station, and warehouse watchmen,
and janitors.
34
Representation Disputes in the Railroad and Airline Industries
(3) Laborers employed in and around the stations,
storehouses, and warehouses.
Although the above so-called national agreement
was later abrogated, it established the basis of the craft
or class which in later years, since enactment of the
Railway Labor Act, has generally come to be known as
clerical, office, station, and storehouse employees.112
Airline Crafts or Classes
There were no generally recognized crafts or classes in the airline
industry when the Act was first applied to it in 1936. Perhaps because of
its announced reliance on historical patterns of self-grouping, the Board
did not decide a reported airline craft or class determination until 1943. 113
Since there was little historical guidance and new ground was being
broken, the NMB developed a practice of opening up some, of the more
controversial cases to industry-wide hearings. Thus, in addition to the
“interested parties” in a given case, the Board on several occasions has
invited each of the major air carriers and major unions representing
airline employees to participate and express their views on the particular
craft or class question at issue. Since 1945 there have been six (6) of
these industry-wide proceedings, five (5) of which involved so-called
“ground personnel.”114
Flight Personnel:
Craft or class determinations among flight deck employees and flight
attendants have been, with a few notable exceptions, relatively
uneventful. The major source of controversy on the flight deck was the
question of the appropriate placement of flight engineers. The NMB
exhibited no consistency in its early decisions on this classification. In
1944 the Board held that flight engineers were essentially flying
mechanics and properly encompassed within the craft or class of airline
mechanics.115 Just one year later the NMB ruled the flight engineers in
that particular case constituted a separate craft or class entitled to
separate representation from general mechanics. 116 The Airline Pilots’
Association, the Air Line Mechanics Association, and the Flight
Engineers International Association at various times and on various
carriers competed for inclusion of the flight engineers with the respective
crafts or classes they represented. The question was laid to rest finally by
a Committee of Three Neutrals appointed by the NMB to act in its stead
under Section 2, Ninth, of the Act. In essence, this Committee of Three,
35
The Railway Labor Act at Fifty
two of whose members currently are members of the NMB, found that
the flight engineer classification had evolved in the jet age into a member
of the flight crew. Accordingly, they were voted neither separately nor
with mechanics but rather with the pilot craft or class.117 This issue and
others dealing with flight deck personnel were well covered by Mark
Kahn in his 1971 study of adjustments to technological change in the
airline industry.118
There does not appear to be much controversy in the flight
attendants’ representation cases (stewards, stewardesses and pursers),
regarding the proper dimensions of the craft or class. The occasional
question which arises in these cases normally relates to a question of
“employee or subordinate official” status.
The only other major controversy among flight personnel involved
the classification of flight instructors. In the first of a series of decisions
beginning in 1953, the NMB decided that flight instructors were “part of
the official family of management,” were not “employees or subordinate
officials,” and therefore were not entitled to representation. 119 Coming
full circle, the Board more recently has held that flight instructors are
employees or subordinate officials, are entitled to representation, and,
moreover, constitute a separate and distinct craft or class for purposes of
the Act.120
Ground Personnel:
The most controversial and still unsettled questions of craft or class
determination under the Act persist among ground employees coming
under three interrelated and sometimes commingled groups: Mechanics
and Related; Clerical, Office, Stores, Fleet and Passenger Service; and
Stocks and Stores Employees. At various times over the years since 1945
the NMB has certified several combinations and permutations of these
employees on a “nonprecedent basis” upon agreement by all the parties.
In other cases the Board has issued craft or class determinations which
placed various job classifications first in one group and then in another,
and then finally in a separate and distinct craft or class of their own.
1. Airline Mechanics and Related (Case No. R-1447): Various
ground personnel on several airlines had been organized by the Air Lines
Mechanics Association, International, on an industrial-type basis during
the 1930’s and recognized by the carriers in collective bargaining
agreements. Beginning in 1945, the NMB entertained petitions from
other unions to break up these industrial units and issue certifications
along “craft or class” lines. In the first of these cases on American
Airlines (R-1447) the Board convened an industry-wide “forum
36
Representation Disputes in the Railroad and Airline Industries
discussion” on “the general subject of the various types of occupations in
the ground forces of the airlines, the relationship of the duties of the
several occupational groups and the advancement of various opinions on
the proper grouping of such employees for representation purposes in a
manner that will satisfy the terms and conditions of the Act.”121 On the
basis of this proceeding, the NMB established the craft or class of
Mechanics and Related Personnel, comprised of so-called “composite”
airline mechanics, aircraft cleaners, parts washers, plant maintenance
mechanics, and the service group known variously on different airlines
as “ground service personnel,” “fleet service personnel” and “utility
personnel.” These latter categories included fuelers, internal and external
aircraft cleaners, and janitorial workers in airport hangars and
buildings.122 In this case the NMB addressed for the first time the
question of “stocks and stores employees” as well as “cargo handlers”
and held that they should not be grouped with mechanics and related, but
probably would belong to the clerical and related craft or class in an
appropriate case. In the interim, the Board placed stocks and stores
employees in limbo by voting them separately and placed cargo handlers
among fleet service personnel, all on a “nonprecedent basis.”123 The
subsequent status of stocks and stores employees, as well as cargo
handlers and passenger service personnel generally, is discussed infra.
The craft or class of Mechanics and Related Employees determined in
Case R-1447 persists to this day in modified form.
In the controversial decision in Cases R-1706, et ai, the Board placed
some of the “ground service personnel” and “fleet service personnel”
from the original mechanics and related craft or class into the clerical and
related grouping.124 Thereafter, in 1963 the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America IBT)
sought a mixed bag of mechanics, cleaners, fuelers, laborers, technicians
and some of the ramp service employees under the designation of
“mechanics and related employees.” A problem arose as to whether all
“ground service employees” as that phrase had been used in R-1447 had
to be voted in the mechanics and related craft or class. To a large extent,
the problem was one of reconciling the R-1447 craft or class with R1706, especially with regard to cargo handlers. Following a two-day
hearing and receipt of post-hearing briefs the NMB found that “fleet
service,” “ramp service” and “ground service” employees are not
precisely meaningful designations and are used interchangeably on
various airlines. The Board held essentially as follows:
37
The Railway Labor Act at Fifty
a. Mechanics, “operational” ground service and cleaning personnel,
plant maintenance cleaning and janitorial employees belong in the
Mechanics and Related group.
b. “Fleet service personnel” performing work preponderantly as
cargo handlers belong in the Clerical and Related group.
c. Stock clerks could be voted separately from the Mechanics and
Related group.125
The last major decision in the mechanics and related craft or class
was by a Committee of Three Neutrals which denied a petition by the
Aircraft Mechanics Fraternal Association (AMFA) for craft severance of
the mechanics from the “related” employees. The Committee reiterated
the vitality of the R-1447 craft or class and held that separate
representation for mechanics was not warranted by history, nature of
duties, community of interest or bargaining relationships.126
2. Clerical, Office and Related (Case No. R-1706, et al.): The craft
or class of clerical, office, station and storehouse employees (including
office janitors, ticket agents and freight and baggage handlers) was
universally recognized in the railroad industry by 1934.127 The issue of
clerical and related employees of the airlines industry was confronted in
1947 by the Board in an industry-wide proceeding on a series of
consolidated cases known to history as “R-1706 et al.” 128 There was no
dispute among the. competing organizations in the seven cases about
voting as one craft or class the clerical, office and office-related
employees. A general consensus prevailed that they had a requisite
community of interest. The disputes arose over what to do with stores
employees, passenger service employees and fleet service employees.
In its ultimate decision the NMB acknowledged the pervasive
coverage of the railroad clerical and related craft or class in that industry,
but declaimed that “because a pattern of craft or class is followed on the
railroads does not necessarily mean that the same pattern should apply on
the airlines. Other factors must be considered.” When all of the rhetoric
had cleared, however, the Board found that there was no established
clerical craft or class in the airline industry and yet paradoxically
proceeded to impose the railroad clerical craft or class on airline
employees. In a decision most notable for its semantic sleight-of-hand
the Board concluded as follows:
The similarity between functions performed by
railroad workers in the craft or class of clerical, office,
station, and storehouse employees are closely similar to
those described herein under the heading of:
38
Representation Disputes in the Railroad and Airline Industries
a. Clerical and office employees including office
attendants.
b. Stores employees.
c. Fleet service employees.
d. Passenger service employees.
A review of the job titles in the railroad craft or class as given in
Item 4 of the findings of fact illustrates this similarity. While the
operational problems of airlines are vastly different from those on
railroads, both are branches of the transportation industry. As such, both
are organized operationally to serve the public in the transportation of
passengers, baggage, mail, express, and freight. For these reasons it is
not surprising to find marked similarity in jobs in the two branches. For
instance, the duties of a railroad ticket agent are quite similar to those of
an airline counter agent or sales agent. For general clerical workers there
is difference only in the details of the respective jobs; there is no
difference in the essential nature of such work on railroads and airlines.
The same may be said for stores employees. Whereas on airlines there
are cargo handlers or fleet service agents, their counterparts can be found
on the railroads as baggage agents, callers, loaders, and truckers. On
railroads such employees are a part of the craft or class of clerical, office,
station, and storehouse employees. „ Although it includes employees of
varying skills and abilities ranging from the highest type of technical
clerical workers down the scale to janitors and laborers, experience has
shown the craft or class to provide a basis of stable labor relations.129
On the basis of this reasoning, the Board established the “R-1706
craft or class” of Clerical, Office, Stores, Fleet and Passenger Service
Employees in the airline industry.
Dissatisfaction from various quarters with the Board’s R-1706
determination was almost immediate and has continued unabated for the
intervening thirty years. The International Association of Machinists &
Aerospace Workers (IAM&AW) quickly protested the inclusion of
stocks and stores among the clerical craft or class. Upon reconsideration,
the Board in April, 1947, reaffirmed its original decision on this point.
But the NMB effectively left the door ajar for future re-examination by
concluding as follows:
Therefore, the request for reconsideration is denied
and the determination of January 31, 1947, that cargo,
commissary, and stockroom employees are a part of the
craft or class of clerical, office, stores, fleet, and
passenger service employees is confirmed. This
affirmation should not be construed to prevent a
39
The Railway Labor Act at Fifty
reexamination of the craft or class provisions of the
Railway Labor Act as applied to these categories of
employees in any future air line representation disputes
when, in the judgment of the Board, such reexamination
will further the purpose of the Act.130
Beginning in 1954 the Board presided over a steady erosion of the
stocks and stores employees from the clerical craft, as detailed infra. In
its Annual Report for 1953 the Board stated:
Controversies have arisen on several occasions since
the 1947 findings in Cases R-1706 et al., concerning the
proper classification of stores employees, and more
recently, of cargo and ramp service employees. These
controversies had not been finally resolved . . . 131
The controversy continued unabated, especially on the question of
stocks and stores, and in one such case the Board almost plaintively
solicited a proper case for reconsideration of the entire R-1706 issue:
The arguments advanced . . . for a reconsideration of
the proper grouping of the various occupational
classifications of employees which may comprise the
craft or class of clerical, office, stores, fleet and
passenger service employees impress the Board as
having considerable merit. There has been a lapse of 5
years since the Board issued its Determination of Craft
or Class for Clerical, Office, Stores, Fleet and Passenger
Service Employees in Case R-1706 et al. In view of this
and because of the expansion and -growth of the airline
industry during this period, as well as the development
of representation of airline employees,* the Board is of
the opinion that upon proper application for its services
under. Section 2, Ninth, at the appropriate time under its
rules, it will be advisable to reexamine the determination
in Case R-1706 et al., with the view of making such
modifications as may be found to be justified at that
time.132
But twelve years later the R-1706 craft or class continued as a
general irritant:
. . . The Board has announced its reluctance to
separate a part or parts of a craft or class and to
determine separate representatives for such part or parts
on numerous occasions. By following this policy, most
of the Board’s determinations of craft or class have
40
Representation Disputes in the Railroad and Airline Industries
remained remarkably stable over the years and have
engendered a minimum of controversy. However, the
Board’s findings in National Airlines, Inc., Case No. R1706, et al., decided January 31,1947, establishing the
craft or class of Clerical, Office, Stores, Fleet and
Passenger Service Employees has been an exception.133
3. Stocks and Stores Employees: Following the railroad example,
the Board in R-1706 placed “stocks and stores employees” (whose chief
functions are to receive, issue, check, store and inventory supplies) in the
clerical rather than mechanical craft or class. Review of the records of
that 1947 proceeding indicates that the question of their status as a
separate and distinct craft or class was not seriously considered. The
Board adhered to this position in one decision in 1948, but beginning in
1953 it approved the first of a series of case-by-case departures in which
stocks and stores were voted separately from any other craft or class. 134
Then in the first of its “re-examinations” of R-1706, the Board in 1956
concluded after hearings on consolidated cases that the general purposes
of the Act would be “more readily achieved ... by considering stocks and
stores employees as a separate and distinct craft or class in the airline
industry.”135 The primary basis for this conclusion was the fact that since,
and notwithstanding, R-1706, the stocks and stores employees had been
organized, voluntarily recognized and bargained for as a separate group
on a majority of the air carriers in the industry. The Board since 1956 has
continued to recognize this de facto situation and consistently has voted
stocks and stores employees separately. 136
4. The R-1706 Craft or Class Revisited: In 1969 and 1970 three
major cases were pending before the Board, each of which presented a
different problem in the light of the R-1706 determination. The Board’s
reaction was to utilize these cases as a vehicle for re-examination of the
entire question in an industry-wide proceeding:
Therefore, when applications involving employees
of Air Canada (NMB Case No. R-4228), Eastern Air
Lines (NMB File No. C-4011), and Frontier Airlines
(NMB Case No. R-4322), were proximately received,
the Board’s basic concern with its historical policy of
generally recognizing the clerical craft or class as proper,
was revived.
Thus, on July 24, 1970, the National Mediation
Board issued a notice of hearing inviting labor
organizations and airline carriers subject to Title II of the
Railway Labor Act to be present at a general conference
41
The Railway Labor Act at Fifty
in order to secure views concerning the appropriateness
of the clerical craft or class.
* * *
After the September 15, 1970 preliminary
conference, the Board made numerous attempts to
schedule additional hearings to develop factual data and
cogent statements of position concerning the current
status of the clerical craft of class. Due to the large
number of labor organizations and carriers who desired
to participate in these hearings as well as the magnitude
of the inquiry involved, scheduling of subsequent
hearings became extremely difficult. After several
extensions of time, granted upon organization and carrier
requests, the Board was again able to reconvene the
hearings on September 8, 1971, one year less one week
from the date of the preliminary hearing conference.
As a result of this unforeseen delay, the Board
confirmed at the opening of the September 8, 1971
hearing that disposition of the three cases referenced in
the original notice of hearing would no longer be
delayed or made contingent upon the final results of the
Board’s industry-wide informational inquiry.
During nine days of hearings, resulting in
approximately twelve hundred pages of transcript and
the submission of nearly two hundred exhibits, the
Board was able to amass more substantive historical
information concerning employee groupings in the
airline industry during the past thirty years than would
have been possible through evidence and argument in a
series of separate cases involving single carriers and one
or more labor organizations.137
The long and short of this two-year proceeding is that, despite
repeated expressions of dissatisfaction with R-1706, none of the major
labor organizations had developed an alternative proposal for grouping
ground employees when the industry-wide proceedings opened in
September, 1970. Further delays necessitated the separate processing of
the three specific cases underpinning the proceedings.138 Absent these
three cases, the NMB was on shaky jurisdictional ground for decisional
rule-making and the proceeding was foredoomed from that point on to an
inconclusive result. When the industry-wide hearings were resumed in
September, 1971, the positions of the unions were not much more
42
Representation Disputes in the Railroad and Airline Industries
coherent than they had been a year earlier. Some of the organizations
favored prospective retention of the R-1706 policies; some wanted
change; but there was no consensus regarding the dimensions of such
change, and one organization voiced dissatisfaction with R-1706 but
expressly declined to take any position whatever regarding its
replacement. There appeared to be consensus among the participating
unions that whatever prospective changes were made, “grandfather
clause” protection should be extended to their existing certifications.
Prior to reconvening the industry-wide proceedings in September,
1971, the NMB circulated a procedural statement as follows:
It should be noted that the various interested labor
organizations have the burden of going forward in this
matter. After the organizations have had an opportunity
to enter into the record pertinent data, evidence and
argument in support of their positions, the carriers shall
be invited to present such factual information as the
Board may require.
The uniform position of the thirty-five (35) air carriers who
participated in the proceeding was that the NMB had no statutory
jurisdiction to revise R-1706 in the absence of an actual case
investigation and that, in any event, the R-1706 policies should be
continued unchanged.
The ultimate product of the industry-wide proceeding in “R-1706
Revisited” was a Memorandum and accompanying letter dated August
25, 1972, which contained the following pertinent points:
(a) Neither the letter nor the memorandum changed or
invalidated in any way then-current representation
relationships existing in the airline industry.
(b) The R-1706 craft or class was “generally
recognized” in the airline industry as both a factual
and legal fiction.
(c) So-called “fleet service personnel have evolved (like
stocks and stores employees) as a separate and
distinct group from the clerical and related craft or
class—especially on the larger carriers.
(d) On the basis of the hearing record in the industrywide proceedings no other part of the R-1706 group
except fleet service personnel had evolved separately
and distinctly.
43
The Railway Labor Act at Fifty
(e) None of the foregoing observations should be
construed as prejudging the merits of any future
representation application or disputes.139
Standing alone, the statements and observations of the Board in this
matter are-less than clear. The policy implications, however, are brought
into sharp focus by review of adjudicative cases which have arisen in the
clerical and related craft or class since 1972. One practical result has
been that the NMB no longer dismisses as prima facie invalid
applications for “less than the original R-1706 craft or class.” At first the
NMB adopted a rebuttable presumption that “fleet service employees”
constitute a separate and distinct craft or class unit. Accordingly, the
Board announced that it will entertain and routinely process cases
seeking either that group alone, or a craft or class of clerical, office and
passenger service employees.140 But in subsequent decisions the Board
held that a petitioner “bears a heavy burden of clearly proving that the
fleet service craft or class is most appropriately a separate craft or
class.”141 The inconsistency may be explained by the fact that in the
earlier case the fleet service employees had for years been represented as
a part of the mechanics craft or class. Also, the latter cases involved
relatively small carriers and groups of employees where functional,
promotional and other identifying characteristics of fleet service
personnel were not sharply delineated. In other recent cases the NMB has
entertained applications for “portions” of the original R-1706 craft or
class, including one in which it hesitantly decided that “Cargo Agent
employees do not now constitute a separate craft or class.” 142 (Emphasis
added.) In another recent case the Board actually voted as a separate craft
or class the clerical and office employees of a carrier, but the application
was dismissed when less than a majority of the eligible employees cast
valid ballots.143
The major result of the revisitation of R-1706 seems to have been a
tacit abandonment of the policy of applying the railroad clerical craft or
class to airline employees. The implications of this reassessment are not
clear, the dust has not settled, and the principles for future application are
being worked out on a cautious case-by-case basis. It appears that the
Board is looking for appropriate case vehicles through which to
implement some of the policies suggested in its August, 1972,
memorandum. Although it may tend to take two steps forward and one
back, it is unlikely that the NMB, having ventured forth on stocks and
stores and fleet service employees, will retreat to the familiar but cold
comfort of the railroad clerical craft or class for airline employees. It is a
safe bet that whatever the policy direction, however, it will be
44
Representation Disputes in the Railroad and Airline Industries
implemented by case-by-case decision rather than by another industrywide hearing under purported general powers of the Board.
Appendix A*
Significant Federal Court Decisions as to the Nature and Scope
of NMB Authority and the Reviewability of NMB Action under
Section 2, Ninth of the Railway Labor Act,45 U.S.C. Section 2,
Ninth
Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 1 LRRM 743 (1937).
Shields v. Utah Central R.R. Co:, 305 U.S. 177, 3 LRRM 669 (1938).
BRAC v. Virginian Ry. Co., 125 F. 2d 853, 10 LRRM 316 (4 Cir. 1942).
General Committee of Adjustment v. Missouri, Kansas, Texas R.R. Co., 320 U.S. 323, 13
LRRM 627 (1943).
Switchmen’s Union v. N.M.B., 320 U.S. 297, 13 LRRM 616 (1943).
General Committee of Adjustment v. Southern Pacific Co., 320 U.S. 338, 13 LRRM 635
(1943).
BRAC v. United Transport Service Employees of America, 137 F. 2d 817, 12 LRRM 861
(D.C. Cir. 1943), reversed 320 U.S. 715, 13 LRRM 850 (1943).
Order of Ry. Conductors v. Penna. R.R., 323 U.S. 166, 15 LRRM 684 (1944).
National Federation of Ry. Workers v. N.M.B., 141 F. 2d 725, 14 LRRM 560 (D.C. Cir.
1944).
Order of Railway Conductors v. N.M.B., 141 F. 2d 366, 14 LRRM 561 (D.C. Cir. 1944),
Cert, dismissed, 323 U.S. 166, 15 LRRM 684 (1944).
United Transport Service Employees of America v. N.M.B., 141 F. 2d 724,14 LRRM 559
(D.C. Cir. 1944).
National Council of Ry. Patrolmen’s Union v. Sealey, 152 F. 2d 500, 17 LRRM 688 (5
Cir. 1945).
Kirkland v. Atlantic Coast Line R.R. Co., 167 F. 2d 529,22 LRRM 2043 (D.C. Cir. 1948),
Cert, denied, 335 U.S. 843, 22 LRRM 2590 (1948).
United Transport Service Employees of America v. N.M.B., 179 F. 2d 446, 24 LRRM
2589 (D.C. Cir. 1949).
Rose v. BRAC, 181 F. 2d 944,26 LRRM 2133 (4 Cir. 1950), Cert, denied, 340 U.S. 851,
26 LRRM 2644 (1950).
Radio Officers Union v. N.M.B., 181 F. 2d 801, 25 LRRM 2634 (D.C. Cir. 1950)
__________
*The author acknowledges with appreciation the assistance of William E. Fredenberger,
Jr., NMB General Counsel, in the preparation of the foregoing case list and other
legal citations.
Air Line Dispatchers v. N.M.B., 189 F.2d 685, 28 LRRM 2048 (D.C. Cir. 1951), Cert.
denied, 342 U.S. 849, 28 LRRM 2634 (1951).
B.R.T. v. Howard, 343 U.S. 768, 30 LRRM 2258 (1952).
Air Export Import Co. v. O’Neill, 221 F.2d 829, 35 LRRM 2255 (D.C. Cir. 1954).
California v. Taylor, 353 U.S. 553, 40 LRRM 2158 (1957).
Rutas Aereas Nacionales v. Edwards, 244 F.2d 784, 40 LRRM 2167 (D.C. Cir. 1957).
45
The Railway Labor Act at Fifty
Leedom v. Kyne, 358 U.S. 184, 43 LRRM 2222 (1958).
Decker v. Linea Aeropostal Venezolana, 258 F.2d 153, 42 LRRM 2336 (D.C. Cir. 1958).
Air Line Stewards and Stewardesses Assn., Intl. v. N.M.B., 294 F.2d 910, 48 LRRM 2623
(D.C. Cir. 1961) Cert, denied, 369 U.S. 810, 49 LRRM 2743 (1962).
UNA Chapter, ‘Flight Engineers Intl. Assn. v. N.M.B., 294 F.2d 905, 48 LRRM 2620
(D.C. Cir. 1961), Cert, denied, 368 U.S. 956, 49 LRRM 2359 (1962).
WES Chapter, Flight Engineers Intl. Assn. v. N.M.B., 314 F.2d 234, 51 LRRM 2476
(D.C. Cir. 1962).
Ruby v. American Airlines, 323 F.2d248, 54 LRRM 2202 (2 Cir. 1963), Cert, denied, 376
U.S. 913, 55 LRRM 2455 (1964).
BRAC v. United Airlines, 325 F.2d 576, 54 LRRM 2774 (6 Cir. 1963), Cert, denied, 379
U.S. 26, 57 LRRM 2396 (1964).
Boire v. Greyhound Corp., 376 U.S. 473, 55 LRRM 2694 (1964).
Flight Engineers Intl. Assn., EAL Chapter v. N.M.B., 338 F.2d 280, 57 LRRM 2219 (D.C.
Cir. 1964).
BRAC v. Association for the Benefit of Non-Contract Employees, 380U.S. 650, 59 LRRM
2051 (1965).
Southern Pacific Company v. Switchmen’s Union, 356 F.2d 332, 59 LRRM 2990 (9 Cir.
1965), on rehearing, 356 F.2d 332, 61 LRRM 2558 (9 Cir. 1966).
Howard v. St. Louis, San Francisco Ry., 361 F.2d 905, 62 LRRM 2531 (8 Cir. 1966),
Cert, denied, 385 U.S. 986, 63 LRRM 2559 (1966).
Teamsters v. N.M.B.,363 F.2d 311, 62 LRRM 2482 (D.C. Cir. 1966), Cert, denied, 385
U.S. 929, 63 LRRM 2371 (1966).
BRAC v. N.M.B., 374 F.2d 269, 64 LRRM 2102 (D.C. Cir. 1966).
U.S. v. Feaster, 376 F.2d 147, 65 LRRM 2087, (5 Cir. 1967) Cert, denied 389 U.S. 920,
66 LRRM 2370 (1967).
Aeronautical Radio, Inc. v. N.M.B., 380 F.2d 624, 65 LRRM 2522 (D.C. Cir. 1967), Cert.
denied 389 U.S. 912, 66 LRRM 2370 (1967).
Teamsters v. BRAC, 402 F.2d 196, 68. LRRM 2651 (D.C. Cir. 1968), Cert, denied, 393
U.S. 848, 69 LRRM 2435 (1968).
U.S. v. Feaster, 410 F.2d 1354, 71 LRRM 2218 (5 Cir. 1969), Cert, denied, 396 U.S. 962,
72 LRRM 2866 (1969).
Machinists v. N.M.B., 425 F.2d 527, 73 LRRM 2278 (D.C. Cir. 1970).
Aircraft Mechanics Fraternal Association v. United Airlines, 406 F. Supp. 492, 91
LRRM 2248 (ND Cal. 1976).
International Association of Machinists v. National Mediation Board, 409 F. Supp. 113,
91 LRRM 2813 (D.D.C. 1976).
46
Representation Disputes in the Railroad and Airline Industries
APPENDIX B
Representation procedures under the Railway Labor Act
47
The Railway Labor Act at Fifty
48
Representation Disputes in the Railroad and Airline Industries
__________
* Arbitrator and Attorney
1. Elgin, Joliet & Eastern Ry. v. Burley, 325 U.S. 711 (1945). 24
2. 1 Decisions of USRRLB 119 (1921).
3. Philip Taft, Organized Labor in American History, Harper & Row (New York:
1964) pp. 376-381.
4. Texas and New Orleans R.R. Co. v. Brotherhood ofRailivay and Steamship Clerks,
281 U.S. 548 (1930).
5. Walter Galenson, The CIO Challenge to the AFL: A History of the American Labor
Movement 1935-1941, Harvard University Press (Cambridge, 1960) p. 566-582.
6. Leonard A. Lecht, Experience Under Railway Labor Legislation (New York: 1955)
p. 155.
7. See Texas Pacific-Missouri Pacific Terminal R.R. of New Orleans, 4 Determinations
or Craft or Class of the National Mediation Board (hereinafter cited as
“Determinations”) 302 (1967).
8. Railway Labor Act, Sec. 2 Fourth and Ninth as amended, 48 Stat. 1188 (1934), 45
U.S.C. Sec. 152 Fourth and Ninth.
9. Virginian Ry. v. System Federation No. 40,300 U.S. 515 (1937); Chicago and North
Western Ry. Co. v. United Transportation Union, 402 U.S. 570 (1971).
10. Switchmen’s Union v. National Mediation Board, 320 U.S. 297 (1943).
11. Louis L. Jaffe, Judicial Control of Administrative Action, Little Brown & Co.
(Boston: 1965) pp. 343-345.
12. See Bhd. of Rwy. and S.S. Clerks v. United Transport Service Employees of
America, 137 F. 2d 817 (B.C. Cir. 1943), rev’d per curiam 320 U.S. 715 (1943);
Decker v. Linea Aeropostal Venezolana, 258 F. 2d 153 (D.C. Cir. 1958); Ruby v.
American Airlines, Inc., 323 F. 2d 248 (2nd Cir. 1963).
13. Leedom v. Kyne, 358 U.S. 184 (1958).
14. UNA Flight Chapter v. N.M.B., 294 F. 2d 905 (D.C. Cir. 1961).
15. Bhd. of Rwy. and S.S. Clerks v. Ass’nforthe Benefit of Non-Contract Employees
(ABNE), 380 U.S. 650 (1965).
16. U.S. v. Feaster, 410 F. 2d 1354 (5th Cir. 1969), cert, denied 396 U.S. 962 (1969).
17. ABNE, supra 380 U.S. 650 (1965).
18. See NLRB v. Greyhound Corp., 368 F. 2d 778 (5th Cir. 1966); Boire v. Greyhound
Corp., 376 U.S. 473 (1964).
19. Chicago Northwestern Ry. Co. et al., 1 Determinations 52, 54 (1937).
20. Seaboard Air Line Rwy., 1 Determinations 167, 173 (1940).
21. Switchmen’s Union v. N.M.B., 135 F. 2d 785 (D.C. Cir. 1943). Quoted with approval
by NMB in American Airlines, Inc., 1 Determinations 399 (1945).
22. Lehigh Valley R.R. Co., 1 Determinations 191, 192 (1940).
23. Galveston Wharves, 4 Determinations 200 (1962).
24. Letter from James W. Carmalt (unpublished). To the same effect see letter from
Carmalt dated December 9,1936 quoted at San Antonio, Uvalde and Gulf R. R. Co.,
2 Determinations 157, 163 (1950).
25. Chicago, Burlington & Quincy R.R. Co., 1 Determinations 7 (1936).
26. To date there are some 200 volumes of published NLRB decisions in representation
and unfair labor practice cases. The NMB has published four (4) volumes of Craft or
Class Determinations and Findings Upon Investigation, the latest covering the
period, July 1, 1961 to June 30, 1968. Thus, the NMB has not published a volume of
R-cases in nearly eight years and none of the commercial reporting services carry
NMB determinations and findings. Unless the interested practitioner or scholar has
49
The Railway Labor Act at Fifty
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50
been on the NMB’s mailing list, research in the’ representation field must be
undertaken at the Board’s Washington, D.C., headquarters which contains the only
complete set of R-case decisions extant.
Annual Reports of the National Labor Relations Board 1965-75; Cf. Annual Reports
of the National Mediation Board 1965-75.
Railway Labor Act, as amended, Sec. 2, Tenth 48 Stat. 1188 (1934), 45 U.S.C., Sec.
152, Tenth. United States of America v. TACA Airways Agency, Inc., U.S.D.C. ED
La, Civ. No. 24270; United States v. Winston, et al., No. 75-CR-83 (U.S.D.C. ND
NY).
NLRB Statements of Procedure, Sec. 101.17, Title 29 CFR Part 101, Subpart C, Sec.
101.17.
Administration of the Railway Labor Act by the National Mediation Board, 19341970, G.P.O. (Washington, D.C.: 1970) p. 66.
NMB 1st Annual Report, Fiscal Year Ended June 30, 1935, pp. 23-24.
American Seating Company, 106 NLRB 250 (1953); see also Ludlow Typograph,
Co., 113 NLRB 724 (1955).
Compare Montgomery Ward & Company, Inc., 137 NLRB 346 (1962) with the
NMB’s handling of the merger of four operating brotherhoods in 1968 to form the
United Transportation Union, AFL-CIO.
See National Labor Relations Act, Section 8 (b) (4) (d) and 10 (k) 49 Stat. 449
(1935), as amended by P. L. No. 101 80th Cong., 1st Sess. (1947) and P. L. No. 257
86th Cong., 1 Sess. (1959): 29 U.S.C. §§ 159 and 161.
Chicago & Northwestern Rwy. Co., 1 Determination 130, 136 (1938).
Atchison, Topeka & Santa Fe R.R., 1 Determination 62, 67, (1938); Norfolk &
Western Rwy., 1 Determination 68, 76 (1938); Boston & Albany R.R., I
Determination 157 (1940).
Aurora & Elgin Run/. Co., 1 Determinations 229, 238 (1942); see also Chicago,
North Shore & Milwaukee R.R., 1 Determinations 215, 227 (1942).
New York, New Haven & Hartford R.R., 2 Determinations 88, 95 (1948).
United Airlines, unpublished decision (R-3938, July 22, 1968).
See Herbert Northrup, Organized Labor and The Negro, Ch. Ill (1944); Ray
Marshall, The Negro and Organized Labor, Chs. 7, 10 (1965); Michael Severn,
Legal Restraints on Racial Discrimination in Employment, Ch. 6 (1966).
Unpublished letter from George A. Cook to A. Johnston, December 1, 1936, quoted
in Charleston & Western Carolina Rwy. Co., 1 Determinations 163, 164 (1940).
Atlanta Terminal, 1 Determinations 10, 11 (1936); Charleston & Western Carolina
Rwy. Co., 1 Determinations 163, (1940).
See Benjamin Aaron, The’ Union’s Duty of Fair Representation Under the Railway
Labor and National Labor Relations Acts, UCLA Institute of Industrial Relations
Report No. 189 (1968).
For NLRB treatment of this issue see Charles Morris, et al., The Developing Labor
Law, Bureau of National Affairs (Washington, D.C., 1971) pp. 748-749.
Friedkin Aeronautics, Inc., d/b/a Pacific Southwest Airlines, 3 Determinations 13,
15 (1954).
Pan American Grace Airways, Z Determinations 44 (1949).
Eastern Aviation Service, Inc., C-3796, dismissal dated April 14, 1970
(unpublished).
Pinkerton’s Inc., R-4574, dismissal dated December 15, 1975 (unpublished).
Son Antonio, Uvalde & Gulf R.R. Co., 2 Determinations 164, 168 (1950); see also
Note 24 supra.
Representation Disputes in the Railroad and Airline Industries
50. New York, Chicago & St. Louis R.R. Co., 1 Determinations 1 (1935); New York
Central R.R. Co., 1 Determinations 17 (1937); New York Central R.R. Co., 1
Determinations 197 (1941).
51. Houston Belt & Terminal Rwy., 2 Determinations 226 (1952); these criteria were
expanded somewhat in Cincinnati, New Orleans and Texas Pacific R.R. Co., 4
Determinations 280 (1966).
52. Donora Southern R.R. Co. et al., 2 Determinations 80 (1952).
53. Airlift International Inc., 4 Determinations 142 (1967).
54. 45 U.S.C. Sec. 151, Fifth. Cf. 29 U.S.C. Sec. 152(5).
55. Matter of Hudson and Manhattan Rwy. Co., 245 ICC 415.
56. Great Northern R.R. et al., 3 Determinations 134, 137 (1953); see also Penn Central
Trans. Co., Case No. R-483, June 23, 1975 (unpublished).
57. Northwest Airlines, Inc., 2 Determinations 19, 25 (1948).
58. See Matter of Journal News Corp., 1 NYS LRB 295, 302 (1942).
59. Northwest Airlines, Inc., 2 Determinations 27, 39 (1949).
60. Pan American World Airways, Inc., 4 Determinations 129, 131 (1967).
61. Pan American World Airways, Inc., File No. C-4087, March 21, 1973 (unpublished).
62. Braniff Airways, File No. C-3747, September 27, 1968 (unpublished); Mohawk Air
Lines, Inc., File No. C-3888, December 18, 1969 (unpublished); Frontier Airlines,
Inc., File No. CM020, December 18, 1970 (unpublished).
63. NLRB v. Bell Aerospace Co., Div. of Textron, Inc., 416 U.S. 267, 294 (1974).
64. 29 CFR X; Part 1203, Sec. 1203.3 (hereinafter “Rules”).
65. Rules, Part 1206, Sec. 1206.4(a); see also Texas & Pacific Rwy. Co., 2
Determinations 204 (1952).
66. Aliquippa and Southern Rwy., Case No. R-2402 (1951), (unpublished); see also
Pennsylvania R.R. Co., 2 Determinations 204, 207 (1951).
67. Rules, Part 1206, Sec. 1206.4(bXD; Until 1967 the election bar was unqualified and
extended for a two (2) year period; see Lehigh Valley R.R. Co., 3 Determinations
225, 227 (1960).
68. Id., Section 1206.4(b)(2).
69. Id., Section 1206.9(b)(3).
70. Id., Section 1206.4(b) Note.
71. Compare NLRB rules described in detail at Morris et al., Note 44, supra, pp. 167180.
72. Op. cit., Chicago & Northwestern.
73. Op. cit., Administration of the RLA . . . , p. 79.
74. Lehigh Valley R.R. Co., 3 Determinations 225, 227 (1960). Compare Harry Coslett
et al., and ILA, 122 NLRB 115 (1960).
75. Cf., Gissel Packing Co., et ai, 395 U.S. 575 (1969) and Cumberland Shoe Corp.,
144 NLRB 1268 (1963).
76. Rules, Part 1206, Section 1206.3.
77. Id., Section 1206.2. These percentages are in every respect different from those
required by the NLRB. See 29 CFR Part 101.C, Section 101.18.
78. Id., Section 1206.5.
79. Railway Express Agency, Inc., 4 Determinations 253, 257 (1965).
80. Letter from Board to the President of Railway Yardmasters of America dated March
17, 1950, quoted in Houston Belt & Terminal Rwy. Co., 2 Determinations 225, 227
(1952).
81. Op. cit., Administration of the RLA . . . , p. 67.
51
The Railway Labor Act at Fifty
82. See Saturn Airways, Inc., 4 Determinations 87, 88 (1965); see also, ABNE decision,
op. cit., p. 17.
83. Pan American World Airways, Inc., 3 Determinations 77, 79 (1958). In the cited
case neither of the two organizations on the ballot received a majority but a third
union won the election by the write-in votes and was certified.
84. Pan American World Airways, Inc., 1 Determinations 454 (1948).
85. Lake Central Airlines, Inc., 4 Determinations 101, 102 (1966).
86. See BLF&E v. Georgia Southern & Florida Rwy. Co., Supreme Ct. of Dist. of
Columbia, Equity No. 54632, November 11, 1933, quoted in Norfolk and Western
Rwy., 1 Determinations 101, 108 (1935).
87. Erie R.R. Co., 3 Determinations 186, 189 (1955).
88. Southern Pacific Lines, 1 Determinations 96, 99 (1938), citing REO v. Nashville
Chattanooga & St. Louis Rwy. (6th Cir. 1937).
89. Delaware & Hudson, 2 Determinations 213 (1952).
90. Rules, Part 1206, Section 1206.6; see also Eastern Air Lines, Inc., 4 Determinations
24 (1964).
91. See Universal Airlines, Inc., 4 Determinations 120 (1967); Linea Aeropostal
Venezolana (Venezuelan Airlines), 3 Determinations 54 (1955).
92. National Airlines, Inc., 2 Determinations 50 (1950).
93. Rules, Part 1206, Section 1206.1.
94. Ibid.
95. Cf., Hughes Tool Co., 147 NLRB 1573 (1964).
96. Pan American World Airways, Inc. (Guided Missile Range Division), 3
Determinations 41 (1957); see also In the Matter of BRAC Application for
Interpretation and the Chesapeake & Ohio Rwy. Co., 4 Determinations 215 (1962).
97. Northwest Airlines, Inc., 2 Determinations 16 (1948).
98. The following five (5) unpublished accretion cases all arose in 1975 and 1976:
American Airlines/Flight Simulator Technicians (R-4567); British Airways
Corp./Computer Service Technicians (R-4406); Braniff Airways, Inc./Technical
Specialists (R-4543); Haivaiian Airlines/Secretaries, Executive Secretaries, et al.
(R-4531); Penn Central Trans. Co./Metro Equipment Inspectors (R-4598).
99. Hearings before Committee on Interstate and Foreign Commerce on HR 7660, 73d
Cong., 2d Sess. 45 (1934).
100. NMB 1st Annual Report, op. cit.
101. Switchmen’s Union v. NMB, 135 F.2d 785, 793 (D.C. Cir. 1943).
102. Op. cit., Seaboard Air Line Rwy.; see also KLM Royal Dutch Airlines, 3
Determinations 1, 2 (1953).
103. Chicago, Burlington & Quincy, op. cit.
104. Op. cit., Chicago, Aurora & Elgin Rwy, Co.; see also Union R.R. Co., 4
Determinations 276 (1966) wherein the NMB expressly rejected the “National Tube
Doctrine” of the NLRB in such cases. Cf., National Tube Company, 76 NLRB No.
169 (1948).
105. American Airlines, Inc., 1 Determinations 394, 399 (1945)
106. Delaware, Lackavxmna & Western R.R. Co., 1 Determinations 394, 399 (1945).
107. American Airlines, Inc., 1 Determinations 394, 399 (1945).
108. Ibid.
109. Hearings on S. 2496 Before a Subcommittee of the Senate Committee on Interstate
Commerce, 74th Cong., 1st Sess. 1-30 (1935); S. Rep. No. 895, 74th Cong., 1st Sess.
(1935); H. R. Rep. No. 2243, 74th Cong., 2d Sess. (1936); Congressional Record,
52
Representation Disputes in the Railroad and Airline Industries
74th Cong., 1st Sess. 4900, 5079, 9414, 10058 (1935); Congressional Record, 74th
Cong., 2d Sess. 4455, 5034, 5040, 5067, 5121, 5223, 5411 (1936).
110. Regional Rail Reorganization Act of 1973 (P. L. No. 93-61). For an excellent
summary see 60 Journal of the American Bar Assoc. 860 (July, 1974).
111. American Airlines, Inc., 1 Determinations 394 (1945).
112. National Airlines, Inc., et al., 1 Determinations 423, 430 (1947).
113. Transcontinental & Western Air, Inc.,. 1 Determinations 367 (1943); see also
American Airlines, Inc., 1 Determinations 371 (1944). These first two reported
airline cases involved classification of employees not even in existence in the
industry in 1936.
114. American Airlines, Inc., (Mechanics and Related), 1 Determinations 394 (1945);
National Airlines, Inc., et al., (Clerical, Office, Stores, Fleet and Passenger Service)
1 Determinations 423 (1947); Pan American-Grace Airways (Flight Dispatchers), 2
Determinations 44 (1949); Eastern Air Lines, Inc., et al., (AMFA Application—
Committee of Three), 4 Determinations 54 (1965); Airline Industry Hearings,
September 15, 1970-October 7, 1971 (Clerical, Office, Stores, Fleet and Passenger
Service) Memora dated August 25, 1972 (unreported).
115. American Airlines, Inc., 1 Determinations 371 (1944).
116. Transcontinental & Western Air, Inc., op. cit.
117. United Air Lines, Inc., 3 Determinations 56 (1961).
118. See Mark Kahn, “Collective Bargaining on the Airline Flight Deck” in Levinson et
al, Collective Bargaining and Technological Change in American Transportation,
op. cit., pp. 519 -528.
119. Pan American World Airways, Inc., 2 Determinations 7 (1953).
120. United Air Lines, Inc., 4 Determinations 30 (1965); Pan American World Airways,
Inc., 4 Determinations 129 (1967).
121. American Airlines, Inc., 1 Determinations 394 (1945).
122. Ibid.
123. Ibid.
124. National Airlines, Inc., et al., 1 Determinations 423 (1947).
125. Eastern Air Lines, Inc., 4 Determinations 14 (1963).
126. In the Matter of the Application of AMFA, etc., 4 Determinations 54 (1965).
127. Oklahoma Rwy., 1 Determinations 41 (1937); Lehigh Valley R.R. Co., 1
Determinations 25 (1937).
128. Op. cit., National Airlines, Inc., et al., p. 423.
129. Ibid., pp. 438, 439. 62
130. Ibid., pp. 444-447.
131. NMB 19th Annual Report, p. 8.
132. Northwest Airlines, Inc., 2 Determinations 66 (1953).
133. Western Air Lines, Inc., 4 Determinations 74 (1965).
134. See Continental Airlines; NMB Case No. R-2714, July 15, 1953 (unpublished); Cf.,
P.an American World Airways, NMB Case No. R-2777, December 7, 1953
(unpublished).
135. Trans-Texas Airways, Inc., and North Central Airlines, Inc., 3 Determinations 16
(1956).
136. Eastern Air Lines, Inc., 4 Determinations 14 (1963); Western Air Lines, Inc., 4
Determinations 74 (1965); Frontier Airlines, Inc., 4 Determinations 174 (1968).
137. NMB, Memorandum Re: Airline Industry Hearings, August 25, 1972.
138. In the Air Canada case an election was conducted among a craft or class of clerical,
office, fleet and passenger service employees; but the fleet service employees were
53
The Railway Labor Act at Fifty
given a special option to vote first for separate representation in a Globe-type
election. Air Canada, (Case R-4228), November 17, 1971 (unpublished). The
groups in the Frontier and Eastern cases were voted along traditional R-1706 lines.
139. Op. cit., NMB, Memorandum.
140. Craft or Class determination letter Re: American Airlines and Transport Workers
Union of America (R-4327), November 28, 1972 (unpublished).
141. Executive Airlines (Case R-4344), August 14, 1973 (unpublished); Piedmont
Airlines (Case R-4384), August 20, 1974 (unpublished).
142. Air France {Case R-4492), March 3, 1976, Findings Upon Investigation
(unpublished).
143. Seaboard World Airlines, Inc. (Case R-4525), October 14, 1975, Dismissal
(unpublished).
54
Mediation of Railroad and Airline Bargaining Disputes
CHAPTER III
MEDIATION UNDER THE RAILWAY LABOR ACT
Beatrice M. Burgoon*
Collective bargaining was well established in the railroad industry
long before the Railway Labor Act was passed in 1926. The series of
statutes dealing with railroad labor relations which preceded the Act
pointed the direction by their emphasis on peaceful measures to settle
disputes. However, their culmination in the Transportation Act in 1920
aroused strong opposition from both railroad labor and management due
to that statute’s elimination of the role of mediation in dispute settlement
and its reliance on compulsory reference of all contract disputes to final
decisions by a Railroad Labor Board, though without enforcement
powers. As a result, the two parties came together to seek mutual
agreement on some more acceptable procedure. Thus, the Railway Labor
Act was the outcome of negotiations between railway labor and railway
management, structured to meet that industry’s practices and needs.
Further, rejecting compulsory arbitration as unacceptable to both sides,
the parties established procedures instead for mediation with a series of
steps which would successively provide additional time for the parties to
find their own solutions to problems but which, at the end, would retain
the right of both sides to use economic strength.
Amendments to the Act in the course of the past 50 years have
modified and clarified certain provisions. They have created the National
Mediation Board as the administering agency, brought the airline
industry under the Act, defined the organizational rights of employees,
established the National Railroad Adjustment Board and made other
modifications, but the essential framework remains as it was first drafted.
The whole thrust of the legislation is toward voluntary settlements with
primary emphasis on mediation where it is needed to achieve them, but
the Act also imposes restrictions on the parties in response to the larger
national need to maintain a free flow of commerce. The key to
understanding the procedures of the Act lies in recognition of these two
parallel objectives.
1
The Railway Labor Act of Fifty
By the time the Railway Labor Act was adopted, organization on
a relatively narrow craft basis was well established in the railroad
industry through a half century of collective bargaining. Moreover, each
craft bargained locally and the resulting agreements, though in some
instances systemwide, were usually applicable only to a particular part or
even a single division of a railroad. This practice has continued to the
present time and accounts for the current existence of some 6,800 labor
agreements in the industry. When the airlines were brought under the
Railway Labor Act in 1936, they were unorganized but that industry, too,
developed unions along craft lines probably in part because of the Act’s
specific provisions for craft or class organization.
The lack of a definition of the term “craft or class” in the Act led a
former Executive Secretary of the National Mediation Board, Eugene C.
Thompson, to write the following explanation in a memorandum
contained in the Board’s files:
While the Railway Labor Act does not define the term
craft or class, it has been suggested that if the minds of
those who drafted the original Act in 1926 were opened,
it would be found that the word “craft” was intended to
apply to those shopcrafts which had long been
recognized in trade unionism as being accompanied by
apprenticeships and other incidents of trade union
organization. The word “class” was then used to define
all other railroad labor organizations as the same were
voluntarily organized.
Another among the railroad industry practices which influenced the
provisions of the Railway Labor Act was that of negotiating open-end
collective bargaining agreements. Railroad agreements do not expire on a
given date but remain in effect until one party or the other proposes
modification of certain of the agreement’s provisions, whereupon
negotiations take place on the specific issues raised and, when agreement
is reached, the contract is modified accordingly. The earliest railroad
agreements known, dating back to the last quarter of the 19th Century,
were of this open-end type and the practice continues throughout the
industry to the present time. This procedure permits adaptation of rules to
changing local work conditions or to the introduction of new work as the
need arises without waiting for the termination date, perhaps two or three
years later, of a fixed expiration date agreement. Section 6 of the
Railway Labor Act provides for “thirty days written notice of an
intended change in agreements affecting rates of pay, rules or working
conditions ...” thus accommodating to the open-end contracts.
2
Mediation of Railroad and Airline Bargaining Disputes
Without any change in Section 6 provisions, however, the procedures
of the Act have been sufficiently flexible to adapt to airline bargaining
with its fixed termination date contracts and to national bargaining on the
railroads. Section 6 notices in the airline industry normally open the full
range of their agreements just as occurs in industry generally, where the
entire contract expires. As regional and later national bargaining has
developed on the railroads, the Section 6 notices still are used to open
negotiations in the same way as in local bargaining but when agreement
is reached on national issues the parties also agree upon a “moratorium”
date which, by that agreement, excludes the nationally disputed issues
from local contract opening until the expiration of the moratorium. Thus,
local bargaining can continue to resolve local issues, but the national
agreement is not disturbed.
The Railway Labor Act is a collective bargaining statute. Its whole
emphasis is on the full acceptance of that bilateral relationship and the
free exercise of both parties’ rights in determining rates of pay, rules and
working conditions, but with the duty imposed to seek to avoid
interruptions to commerce.
This statutory mandate is placed on the parties in Section 2, General
Duties:
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, and to settle all disputes,
whether arising out of the application of such
agreements or otherwise, in order to avoid any
interruption to commerce or to the operation of any
carrier growing out of any dispute between the carrier
and the employees thereof.
Second. All disputes between a carrier or carriers and its
or their employees shall be considered, and, if possible,
decided, with all expedition, in conference between
representatives designated and authorized so to confer,
respectively, by the carrier or carriers and by the
employees thereof interested in the dispute, (emphasis
added)
The Supreme Court has noted that, “The heart of the Railway Labor Act
is the duty, imposed by Section 2, First, upon management and labor ...”
and then quotes the above statutory language.1
Although the Act provides for intervention by the National
Mediation Board at the request of either party or on its own motion in the
3
The Railway Labor Act of Fifty
public interest when the parties have been unable to resolve the issues in
dispute, the vast majority of agreements in the railroad industry are
reached in direct negotiations without the need to seek mediation
assistance. In 1975, there were approximately 7,200 collective
bargaining agreements in effect in the railroad and airline industries. Of
these, some 1,000 railroad agreements and more than 180 airline
agreements were involved in negotiations during the year, but only 230
required mediation assistance. Characteristically, railroad agreements are
negotiated locally and apply to individual railroads or divisions of
railroads. Bargaining on general wage adjustments and certain so-called
national rules covers larger sections of the industry. Airline agreements
are bargained carrier by carrier with each union and differ in other
respects from railroad bargaining.
While it is unquestioned that during the 1960’s there were serious
labor relations differences in these industries which neither mediation
nor emergency measures were able to resolve without major stoppages or
Congressional action, the fact cannot be ignored that direct collective
bargaining by the parties achieves settlements in the vast majority of
contract openings. Contrary to widely expressed opinion, collective
bargaining under the Railway Labor Act is extensive and quite largely
independent of third party intervention. That mediation was required in
only about 20 percent of negotiations conducted in 1975 under the Act
certainly testifies to a basically healthy collective bargaining
relationship. To the extent that the parties are able to resolve issues in
direct negotiations, mediation would become involved only in the more
difficult situations. The difficulty of the issues may in some cases relate
to the problems and complexities of the two industries subject to the Act.
Alternatively, they may relate to problems more universally experienced
in all industry. In any event, the mediator may find the area of possible
accommodation very narrow indeed. Moreover, it is not unique to the
airline and railroad industries that the more difficult the issue the greater
the pressure on both management representatives and labor union
leadership to reach a settlement acceptable to their constituencies.
For that part of railroad bargaining in which local parties resolve
local issues, as they have for the past one hundred years, mediation
assistance usually can aid in bringing about a resolution within a limited
time. Similarly, during the early years of the airline industry when the
number of jobs was increasing and carriers were experiencing a
substantial degree of prosperity, labor agreements generally could be
achieved by the parties, often with mediation assistance but without
resort to work stoppages. However, at times during the past ten to fifteen
4
Mediation of Railroad and Airline Bargaining Disputes
years as technological change has affected both industries, with a
particularly heavy impact on some jobs, and as both have faced financial
problems, very significant labor relations issues have been created. The
role of mediation has become increasingly difficult as these changes have
occurred.
The Mediation Function
Mediation is the key tool placed in the statute to accomplish the
purposes of the Railway Labor Act. It is the primary charge to the
National Mediation Board created by the Act:
Section 5. First. The parties, or either party, to a dispute
between an employee or group of employees and a
carrier may invoke the services of the Mediation Board
in any of the following cases:
(a) A dispute concerning changes in rates of pay,
rules or working conditions not adjusted by the
parties in conference.
(b) Any other dispute not referable to the National
Railroad Adjustment Board and not adjusted in
conference between the parties or where
conferences are refused.
The Mediation Board may proffer, its services in
case any labor emergency is found by it to exist at any
time.
In either event the said Board shall promptly put
itself in communication with the parties to such
controversy, and shall use its best efforts, by mediation,
to bring them to agreement
Mediation under the Railway Labor Act is frequently termed
mandatory mediation. This does not mean mandatory settlement; the
compulsion lies in the procedures of the Act which require the parties to
keep searching for a possible settlement through the mediation process
sometimes even longer than the parties deem worthwhile. In accordance
with the statute direct negotiations must take place within thirty days of
notice of desire to open an agreement and the matter is closed as soon
thereafter as the parties can settle the issue. However, if the parties
cannot agree, the subsequent procedural steps of the Act must follow and
these may, and frequently do, become prolonged as all efforts to avoid an
interruption of commerce are made.
The initial restriction is found in Section 2, Seventh:
5
The Railway Labor Act of Fifty
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 6 of the Act.
Section 6 provides:
Carriers and representatives of the employees shall give
at least thirty days’ written notice of an intended change
in agreements affecting rates of pay, rules or working
conditions, and the time and place for the beginning of
conference between the representatives of the parties
interested in such intended changes shall be agreed upon
within ten days after the receipt of said notice, and said
time shall be within the thirty days provided in the
notice. In every case where such notice of intended
change has been given, or conferences are being held
with reference thereto, or the services of the Mediation
Board have been requested by either party, or said Board
has proffered its services, rate of pay, rules or working
conditions shall not be altered by the carrier until the
controversy has been finally acted upon as required by
Section 5 of this Act, by the Mediation Board, unless a
period of ten days has elapsed after termination of
conferences without request for or proffer of the services
of the Mediation Board.
In both of the sections quoted above the maintenance of the status
quo with respect to wages, rules and working conditions while the
controversy continues under the jurisdiction of the Board is clearly made
a statutory requirement. This requirement is reiterated at later points in
the Act’s procedures. Although the final provision of Section 6 permits
the parties to be released from the Act’s procedures if, for a period of ten
days, no negotiating sessions are held and mediation is not requested or
proffered by the Board, the right of the Board to enter a dispute in the
public interest on its own motion remains and could be used if a serious
interruption of commerce were threatened.
When one or both of the local parties decide to seek mediation they
address their request to the National Mediation Board where the dispute
is thereupon docketed. As soon as a mediator is available to take the case
one of the staff mediators who are located in various geographical areas
will be notified of his assignment. It should be noted here that the
National Mediation Board has only 21 mediators to handle all mediation
requests from both railroads and airlines. Therefore, there may be some
6
Mediation of Railroad and Airline Bargaining Disputes
delay in the availability of a mediator and the mediators often must work
outside the geographical areas of their regular assignments. Moreover, if
the parties request a recess in the negotiations for more than a brief
period, the mediator may be given another assignment in the interim and
that mediation may have to be concluded before he returns to the earlier
case.
Thus, the Board, charged with this primary duty of mediation,
employs a staff composed almost entirely of mediators and its members
themselves are mediators. Moreover, all of them must be specialists,
broadly knowledgeable in the highly complex rules and pay structures of
these two industries. It is generally agreed, among those familiar with
compensation systems in a range of American industries, that the railroad
compensation system and rules are by far the most complex of them all.
This may be due in part to the one hundred year old traditions of the
industry which are incorporated in their labor agreements. Nevertheless,
in the airlines, one of our newest major industries, a pay structure and
rules system only relatively less complex than that of the railroads has
developed. Effective mediation of disputes involving these rules and
compensation systems is more likely to result when the mediator has a
full understanding of the implications of the disputed issues through his
knowledge of the industry and of the complexities of its compensation
system.2
The art of mediation has been described and assessed in numerous
publications and need not be described in detail here.3 Whether it is the
Secretary of State moving between two disputing powers to find an area
of concord or a mediator in a labor dispute seeking the accommodation
which will enable the parties to agree, the process is similar. The
mediator must be able to detect the essence of the issues dividing the
parties; he must have a keen sense of timing so that he enters and
withdraws from discussions and offers suggestions at the most
constructive moment; and he must be able to place before the parties
innovative ideas for approaches to the issues or for new procedures
which may bring them into agreement. Through all of this he is in a
completely voluntary situation, with no compulsion on the parties to
agree except their own interest in avoiding open conflict. Obligations
under the Railway Labor Act extend only to the requirement to continue
in mediation until released by the National Mediation Board, not to a
requirement to accept a settlement.
It is generally recognized that escalation of mediation from a staff
mediator to higher levels within the agency may help to bring about a
settlement by adding to intensive bargaining pressures. On the other
7
The Railway Labor Act of Fifty
hand, it is essential that such escalation is rare and is not automatically
available. Moreover, the staff mediator should be in the position of
inviting higher level participation or at the least should be involved in the
decision of whether and when such escalation will occur. The role of
senior levels within the agency should be to strengthen the mediator’s
hand, not to weaken it. If the parties see the likelihood that their dispute
will move to another forum which has greater authority, they will tend to
remain in fixed positions so as not to handicap their contentions in the
higher forum. Thus, all efforts of the mediator are undercut and it
becomes impossible for him to find an area of accommodation. As long
as escalation within the agency means only that the mediator’s hand is
strengthened by higher authority, his role is not damaged. It is essential
for the future effectiveness of the mediator in other disputes that his
assistance should be accepted by the parties as the full use of agency’s
assistance and the point at which that assistance is expected to be
concluded. Nevertheless, in some situations the entry of a Board Member
into the mediation process, bringing with him the prestige and authority
of the Board itself, can often lead to an agreement in an otherwise
intractable dispute. The need to utilize the prestige of a Board Member’s
involvement is most likely to occur when the mediation process has been
prolonged or when there is a strong possibility of a major interruption of
commerce.
Invocation of the mediatory services of the Board moves a dispute
into the second stage provided by the statute.
A primary criticism of the Act, which has been levied by critics
unfamiliar with the Act’s purposes, has been that this stage can be
characterized by long delays. Such criticism ignores the mandate of
Congress to use every voluntary means to maintain a free flow of
commerce. This objective is stated in: “Sec. 2. The purposes of the Act
are: (1) To avoid any interruption to commerce or to the operation of any
carrier engaged therein, . . . (4) to provide for the prompt and orderly
settlement of all disputes concerning rates of pay, rules or working
conditions.” 4 It should be noted that the language quoted above states a
Congressional intent to avoid any interruption in the flow of commerce.
This is to be achieved not by forbidding strikes but by requiring the
parties to engage in extraordinary efforts to reach a settlement.
Such “prompt and orderly settlement” is the aim of any mediator
seeking to bring about an agreement but, when agreement cannot readily
be achieved, mediation under the Railway Labor Act is continued while
the parties further explore the issues and, in time, can hope to reach a
settlement without a work stoppage.
8
Mediation of Railroad and Airline Bargaining Disputes
The Courts have many times reiterated the purpose of the Act to prolong
mediation procedures until an agreement could be reached. For example,
the Court in the Machinists v. National Mediation Board case said:
As the Supreme Court has noted on numerous occasions,
these procedures are purposefully long and drawn out.
Congress desired to avoid compulsory arbitration
concerning the content of collective bargaining
agreements, and therefore imposed on the parties to a
labor dispute the obligation to “make every effort” to
settle disputes without interruption of interstate
commerce . . . 5
And again, as Justice Black has stated in his opinion for the Court in
Detroit and Toledo Shore Line v. United Transportation Union,
A final and crucial aspect of the Act was the power
given to the parties and to the representatives of the
public to make the exhaustion of the Act’s remedies an
almost interminable process.6
Moreover, the Court in Machinists v. National Mediation Board stated:
What is voluntary about mediation, including mediation
under the Act, is the decision to accept or reject the
result available from the mediation process. What is
involuntary about mediation under this Act is the
obligation to engage in the mediation process even
though a party is not unreasonable from his point of
view in his conviction that further mediation is futile . .
.7
With such clear mandates from the Congress and the Courts to
continue mediation as long as any possibility of a peaceful settlement
remains, it is inevitable that some cases will be held in mediation for
substantial periods of time. If an agreement is later reached without a
work stoppage, the Railway Labor Act has functioned as it was designed
to function. The Board’s control of the timing of the release of a case
constitutes a significant tool which the Board can use to insure the
objectives in Section 2.
Criticism of the length of time disputes remain in mediation is,
however, frequently well founded but sometimes for the wrong reason.
The very requirement which insures no interruption of commerce—the
status quo maintenance throughout the procedure—removes pressures
from the parties to bargain. There is no “crisis bargaining” under the
Railway Labor Act until its procedures reach the final point of release
from the Act. The absence of a date certain when an agreement will no
9
The Railway Labor Act of Fifty
longer bind the parties allows them a flexibility in scheduling talks which
is not present in other industries. Moreover, it often invites delays for
reasons not necessarily related to the issues in dispute.
An examination of the records of the National Mediation Board
indicates that the average time from receipt of a request for mediation to
the date of agreement runs some seven to eight months. The average for
disputes which are released by the Board, either to self-help or an
Emergency Board, runs about a month longer. The records also show
that at least one-third of that elapsed time is lost because of delays sought
by one or another of the parties. There are wide ranges around those
averages, with some agreements being reached in five or ten days of
mediation and others extending well over a year. Usually the cases that
are open the longest are not in active mediation most of the time. For
example, in one case closed in 1975, which had been open for more than
a year, the carrier had refused to bargain claiming that the Board did not
have jurisdiction and pursued that claim in Court so that mediation could
not begin until after the Court’s decision. In another long delayed case a
representation dispute was involved, thus postponing mediation. The
delays requested by the parties most often occurred because of their
inability to synchronize the availability of their bargainers. In other
instances the parties have sought mediation before making any real effort
in direct negotiations, causing the Board to indicate to them that they
have filed prematurely and should return to direct negotiations. Delays
may also be generated by conflicts of whether or not the Section 6
notices are barred by moratoriums or whether or not the proposals are
local or national in scope. Finally, it should be mentioned that one or
both parties may consciously seek delays in an effort to preserve the
status quo. In the Board’s records, however, all cases docketed, even
those delayed for reasons like the ones listed above, continue to remain
open, accounting in some measure for the somewhat lengthy time spans
of mediation.
Nevertheless, the average length of time that cases remain in the
hands of the Board warrants some of the criticism of that aspect of its
administration which is frequently made. Whether it is possible to reduce
that average time span should be given consideration by the Board. The
courts have so often affirmed that Railway Labor Act procedures are
intended to be “almost interminable” that there appears to be general
acceptance that they must be slow. There are, however, a sufficient
number of cases resolved after a short time in mediation to justify a
review of the causes of long delays and a determination whether it would
be possible to shorten the time span in those instances and still meet the
10
Mediation of Railroad and Airline Bargaining Disputes
statutory charge on the Board to “use its best efforts, by mediation, to
bring (the parties) to agreement” in the public interest. Similarly, since
the parties contribute at least one-third to the average span of time a case
remains in mediation, they might do well to consider whether such
delays are in their own best interest.
The Railroad Industry—Local Bargaining
According to Interstate Commerce Commission records there were,
in June 1975, 74 Class I line-haul railroads, 29 Class I switching and
terminal companies, 260 Class II line-haul railroads, and 134 Class II
switching and terminal companies. Each of these carriers maintains
collective bargaining agreements with all or most of some 20 railroad
labor organizations and in many cases also with certain marine unions
and various small or local independent unions. This structure is the
reason for the existence currently of some 6,800 labor agreements in the
industry. All of the railroad brotherhoods’ agreements contain some
provisions applicable nationally and other provisions concerned only
with local conditions. For example, certain national work rules, vacations
and general wage increases are bargained nationally. When agreement
has been reached in national bargaining, the settlement is incorporated
into the many local contracts rather than in a national contract as is the
practice in other industries. 8 In addition to these national provisions,
however, each local agreement contains working rules—the procedures
by which operations are carried out in the local district for the signatory
craft. Thus, the contract outlines seniority arrangements, job bidding
procedures, division of work assignments, points for going on or off duty
and a range of other working conditions subject to change by
negotiations when necessary. And that necessity may arise with some
frequency.
Unlike manufacturing industries where production and working
conditions tend to be stable, transportation must adapt to the demands of
its customer industries. Factors such as significant changes in freight
traffic or relocation of major industries into or out of a local rail district
may lead to more or less work opportunity within one seniority district
compared with an adjoining one; or such changes may lead to closing a
yard that formerly was active, with consequent consolidation of seniority
lists or transfer of workers. Increased traffic may make the introduction
of automated devices into the district a worthwhile investment for the
carrier and that new technology in turn may cause a chain reaction of
need to modify work rules. Whatever may be the cause of change,
Section 6 notices under the Railway Labor Act provide the means to
11
The Railway Labor Act of Fifty
adapt to local requirements through collective bargaining when the need
arises, rather than at the end of a contract period.
A very high proportion of contract change proposals are settled in
local bargaining. A general chairman of the employee organization
involved conducts such negotiations with the company official
responsible for handling labor relations matters in that district. A formal
notice of desire to change the agreement is forwarded by the moving
party, and in accordance with Section 6 requirements, conferences on the
matter begin within 30 days. An examination of the issues raised in these
notices over a period of time demonstrates the purely local character of
many of them, such as: assignment of crews, designation of interchange
tracks, local arbitrary allowances, relief assignments, changes in
scheduling, changes in industrial switching arrangements, or a host of
other conditions which require modifications of the local bargaining
agreements covering one or more crafts.9 These Section 6 notices tend to
be settled by the parties themselves, though mediation follows if an
impasse is reached and thereafter the status quo provisions of the Act
continue to apply until such time as the Mediation Board might release
the case.
Since there is no requirement that the parties inform the National
Mediation Board of the filing of Section 6 notices, exact data concerning
their number cannot be obtained. However, agreements which modify a
provision of an existing contract are filed with the Board and from that
source it is reported that some 1,000 modifications are made each year in
local railroad collective bargaining agreements. The parties estimate that
at least twice as many notices are filed on the various local properties in
any year as the number for which mediation is requested and thus
become a matter of record. While most local Section 6 notices lead to
agreements, some remain open for substantial periods of time and some
are not progressed at all beyond the early conferences. Such delays arise
from a variety of circumstances. In some cases the issue may involve
matters covered by a national moratorium and therefore not subject to
local modification. Whether or not a proposal is covered by the
moratorium is a decision which can best be made by the parties, often
requiring extensive discussions. In some cases the notice may be
breaking new ground and the International representatives of the union
may seek delay to have time to consider the implications of the proposal
for other agreements. At times, a matter being considered in local
conferences may be suspended because of the opening of the same issue
in national discussions even though it was not previously covered by a
12
Mediation of Railroad and Airline Bargaining Disputes
moratorium. Most frequently for any number of reasons that are
specifically local, a Section 6 notice may be delayed or dropped.
There are some local bargaining issues, however, which present very
difficult problems, often requiring prolonged discussions by the parties
aided by the mediator’s skill and knowledge of the complexities of the
industry to find an acceptable solution. These are the issues which could,
and sometimes do, escalate to a work stoppage before a settlement is
reached. One example is the adverse effect on employees which may
result from the introduction of new technology. The installation of
automated equipment may change the method of performing work or
may lead to the elimination of some jobs. The new equipment may cause
changes in the scope of work, requiring a reassessment of the manning of
the new devices or may raise a question concerning the craft which may
claim the new work. In any event, the continuing erosion of jobs which
has been characteristic of the railroad industry for the past two decades
has caused negotiations on issues affecting job security to be slow and
intractable.
The impact of technology on railroad local bargaining becomes
apparent when some changes are examined. The introduction in
classification yards of automated controls which sort and switch cars by
computers and control car speeds have increased car utilization and
speed of service to customers but have resulted in significantly less
employment and have changed the content of some jobs. A Bureau of
Labor Statistics study estimated that the number of major automated
yards increased 150 percent from 1957 to 1967 and projected a further 20
percent increase by the mid 1970’s.10 In addition, the report noted the
introduction of such equipment in some small yards. During the decade
from 1957 to 1967, the study reported, employees working in ten
occupational categories had been significantly affected by the
establishment of automatic classification yards with a total drop of 29
percent in employment in those classifications over the ten year period.
Similar effects on employment occurred in other categories as a result of
other innovations.
The installation of centralized traffic control on a railroad division
reduces the need for telegraphers, towermen, signalmen and train
dispatchers. The use of microwave and automatic car identification, the
consolidation and relocation of shop facilities and the introduction of unit
and piggyback trains all have contributed to the decline of jobs affecting
various labor organizations while introducing the need for new and
different types of skills. Local collective bargaining must resolve the
hard issues of combining seniority lists of consolidated facilities,
13
The Railway Labor Act of Fifty
establishing procedures for exercising seniority for new kinds of jobs,
agreeing on arrangements for moving employees to new locations and
otherwise adjusting to change.
Although many of these matters can only be resolved locally, the
impact of technological change in the industry has been the cause of
some of the most disruptive disputes which have occurred in railroad
collective bargaining nationally.
Local railroad bargaining, when an impasse is reached, may often
move into an atmosphere of “crisis bargaining.” If a work stoppage
would have only a limited effect on interstate commerce, and the Board
determines that a bargaining impasse has been reached, a proffer of
arbitration may be made to the parties to settle the outstanding issues.
Voluntary arbitration under the Act is discussed by Benjamin Aaron in
Chapter V. If that proffer is rejected by either party, the final 30-day
status quo period prescribed by the Act begins to run. At the end of that
time the parties are free to strike or lockout or take other measures of
self-help. Unless the emergency procedures of Section 10 of the Act are
activated, which happens rarely for a local railroad dispute, the parties
are unrestricted by the Act after the 30 days. Thus all the pressures of
threatened economic action are on both parties as their bargaining
approaches the deadline date. Strikes may, and do, occur in some of
these situations. Most local railroad bargaining, however, does not go the
full route of the procedures of the Act but is resolved by agreement.
A Bureau of Labor Statistics Study covering the years 1950-69;
notes in its findings:
In a vast majority of cases, negotiations have been
concluded successfully on the local properties without
government intervention, active assistance of the
National Mediation Board (NMB) or interruptions of
work. However, when impasses have been reached, the
conflicts have required the mediatory services of the
Board. Mediation has performed successfully as a tool to
compose unadjusted collective bargaining disputes;
nearly 98 percent of docketed railroad mediation cases
have been resolved without resort to an emergency
board.11
The Railroad Industry—National Bargaining
Although local railroad bargaining has existed from the earliest
contracts to the present time, national bargaining in the railroad industry
developed gradually, from division to systemwide then to regional
14
Mediation of Railroad and Airline Bargaining Disputes
bargaining before any nationwide structure was established. Largely in
response to union efforts in the early part of the century to achieve some
uniformity in agreement provisions beyond system contracts, the carriers
established regional conferences to carry on negotiations for the railroads
in each of three sections of the country, the East, the Southeast and the
West. This development was followed by informal coordination of the
three carrier regional groups in major negotiations with the national
representatives of the employee organizations. In 1963, with the
establishment of the National Railway Labor Conference the carriers
formally consolidated the handling of national labor relations matters
through a permanent industrywide bargaining structure which negotiates
for individual carriers on the basis of their granting powers of attorney.
Initially, however, the structure simply joined the three regional five-man
committees to form the NRLC so that the change was more one of form
than substance. A chairman, who had no vote on the Committee,
conducted negotiations for the carrier conference. It was this structure
that had responsibility for formulating the management position during
the turbulent period of the sixties in railroad bargaining, when national
bargaining repeatedly failed to achieve a settlement until after extensive
mediation, appointment of emergency boards and, in some instances,
intervention by the President and the Congress.
There was, however, a further change in 1971, when the committee
was reduced to ten members elected by the three regional groups, four
from the Western roads, three from the Southeast and three from the
East. In addition, the chairman, who is the principal negotiator for the
carriers, now has a vote. There are also currently two non-voting vice
chairmen. Coincidentally with the change made in the carriers’
bargaining structure in 1971, the railroad industry has entered a period of
more constructive labor relations. Although the revised structure
probably made possible a greater facility in the bargaining, the attitudes
and personalities of the principal negotiators on both sides of the table
during the past five years have made a significant contribution to mutual
understanding.
The importance of the role of the parties in the successful
functioning of the Railway Labor Act is well summed up in the Bureau
of Labor Statistics study cited earlier:
Ultimately the factor determining the incidence of
emergency board appointments is the parties themselves.
The Act is based on the principles of freedom of contract
and maximum self-determination, rather than on
government coercion. ‘ Under this system, the principals
15
The Railway Labor Act of Fifty
must decide the merit of their proposals and negotiate
“livable” collective bargaining agreements which will
provide adequately for the public interest. To aid the
parties in this pursuit, the Act provides for various
settlement procedures. These procedures, in themselves,
obviously cannot guarantee industrial relations stability
and the absence of work stoppages. If labor and
management genuinely accept the spirit and intent of the
Act and attempt to understand its procedures and to
utilize the tools available to them, the appointment of an
emergency board should be a rare occasion.12
Over the 50 years of the Railway Labor Act, railroad bargaining has
experienced cycles of peaceful settlements and of troubled labor
relations. The use of emergency boards in railroad disputes is discussed
by Donald Cullen in Chapter VI. There have been two periods when a
series of major railroad disputes were not settled within the procedures of
the Railway Labor Act; they are the war years and the 1960’s. The first
time that notable extra-legal procedures were used was in 1941, when
President Roosevelt intervened to change the recommendations of an
emergency board: Other incidents of White House intervention occurred
from time to time thereafter until the end of the Korean War. But in any
event collective bargaining was not free in any industry during World
War 11. .Not only were there wage and price controls, but compulsory
arbitration of industrial labor disputes, authorized by the War Labor
Disputes Act and administered by the War Labor Board, resulted in the
issuance of more than 17,000 directive orders setting terms and
conditions of employment in the nation’s industries.
The program of national controls extended to railroad collective
bargaining as it did to all other industry; controls for the railroad industry
were administered by a special panel and the Railway Labor Act was
superceded to a degree by wartime legislation. Obviously, war situations
are not normal.
The Railway Labor Act, when the war ended, again functioned as it
was designed to do with the great majority of issues being settled by
direct bargaining. Those negotiations in which mediation was sought
were generally settled by mediation, agreements. From 1954-60, there
were 51 national mediation agreements signed while only five
emergency boards were required during that period.
By the end of the 1950’s, however, new problems were placing a
strain on railroad negotiations. The change from steam to diesel
locomotives, which was virtually completed during that decade, together
16
Mediation of Railroad and Airline Bargaining Disputes
with a series of other technological changes some of which were
discussed above in connection with their impact on local bargaining,
created many of the almost insoluble labor relations issues of the 1960’s.
The magnitude of the problem can be judged by its effect on
employment. Over those two decades employment on Class I line-haul
railroads, where about 95 percent of all railroad workers are employed,
had dropped from over one million to less than 500,000. This decline did
not affect all crafts equally. For example, there was an overall drop of 61
percent in shopcraft jobs from 1950-67, but among the individual crafts
the impact ranged from an 80 percent drop for boilermakers to relatively
small declines for electrical workers.13 The stresses such changes placed
on the bargaining relationships within the shopcraft group in their
traditional joint bargaining began to surface in the sixties. For nearly 30
years prior to the mid-60’s, the 15 non-operating railroad crafts, of which
the six shopcrafts were a part, had bargained jointly. During all of that
time they had negotiated pay increases in cents-per-hour. As a result pay
relationships between the skilled and unskilled workers had become
compressed. This factor, together with the internal pressures within the
shopcraft group generated by the uneven impact of declining job
opportunities, accounted for the problems in shopcraft bargaining in the
last half of the 1960’s.
Many of the problems resulting from the new technology were
principally the concerns of local bargaining, including even vital issues
such as the gradual elimination of telegraphers, a craft that had been a
key part of the railroad industry since its beginning, but most major
issues like that of the use of firemen on diesel locomotives, in which the
settlement would determine the very survival of the craft, were national
issues. It is hardly surprising that mediation could bring no solution to
such an issue; neither could the remaining peaceful procedures of the
Act, nor the efforts of the Secretary of Labor or the White House. In
1963, for the first time during the post World War II period, Congress
entered a railroad labor dispute and ordered compulsory arbitration of the
firemen and crew consist issues. The door to Congress, once opened,
provided a new higher forum and four more national railroad disputes
reached the Congress between 1963 and 1971, in response to national
strikes or threats of national strikes. In two instances, both involving the
shopcrafts, Congress again adopted procedures to bring about final
settlements.
However, a court decision in 1971, outlining procedures for limited
work stoppages by railroad unions on national issues restored, in the
view of the unions, their right to strike. 14 The decision was tested shortly
17
The Railway Labor Act of Fifty
thereafter by a selective strike by the United Transportation Union
against various carriers. The stoppage which lasted from July 16, 1971,
to August 1, 1971, was followed by an agreement on August 2, 1971,
disposing of the disputed issues. In the five years since that time,
although several national disputes have gone through the emergency
board procedures, none has required congressional action. In short, the
Act has retained its viability despite the dislocations resulting from
technological change and drastic declines in employment in the railroad
industry and despite the over-riding of its procedures during some
administrations. The employee organizations had become convinced
during that troubled period, 1963-70, that their right to use economic
strength, preserved to them by the Railway Labor Act, was in fact being
denied in national railroad disputes by Congressional intervention. The
decision by Judge Leventhal reaffirmed the purposes and procedures of
the Act.15
Since the conclusion of the 1970 bargaining round, the National
Railway Labor Conference has negotiated agreements with all of the
unions involved in national bargaining in the 1973 and 1975 rounds, a
total of 20 separate agreements, all settled within Railway Labor Act
procedures either in direct negotiations or with mediation assistance, and
in only three of those 20 negotiations were emergency board procedures
utilized.
National bargaining normally is opened by the national officials of
the employee organizations serving Section 6 notices on the individual
carriers which are in turn forwarded to the National Railway Labor
Conference together with the carrier’s power of attorney to bargain,
although sometimes the NRLC initiates bargaining with its own
proposals.
Currently in railroad national bargaining disputes the members of the
National Mediation Board themselves become the mediators from the
outset of Board involvement. The known impact on the economy of a
national railroad work stoppage makes escalation to the highest levels
within the Board a foregone conclusion and thus would make any
preliminary efforts of a staff mediator ineffective. In the same way,
efforts of the Board Members are diluted if a forum beyond the
procedures of the Act is known to be available.
As became evident during the sixties, easy availability of escalation
to the top levels of government will tend to inhibit collective bargaining
and make mediation ineffective, particularly if the parties expect to reach
that higher forum. Such intervention by higher government officials
beyond the procedures and authority of the Railway Labor Act have
18
Mediation of Railroad and Airline Bargaining Disputes
historically undermined collective bargaining processes in national
railroad disputes. Whether the extra-legal procedures were believed
essential because of national need, as in the war years, or because the
problems facing the bargainers were virtually unresolvable through
mediation, as they were during the sixties, or because one or the other of
the parties found a better pathway to achieving its aims by going outside
the Act, as has sometimes occurred, the effect has been to weaken the
basic mediation function of the Act. It is a tribute to the parties that
during the last five years they have increasingly been able to utilize the
procedures of the Act to settle national railroad disputes and thereby to
restore the Act’s effectiveness. The Railway Labor Act was developed
by the parties as the best means to meet the dual need to protect the
public interest and to preserve free collective bargaining. Its framers
established the tools to accomplish that purpose. To the extent that any
party seeks to involve an additional forum to gain an immediate
transcient advantage, the long-run effect may be to again weaken the
framework of the Act. Absent a return of the kinds of problems that
brought outside intervention in the forties and the sixties, the future of
the Act rests with the continued support of its principles and procedures
by the parties.
Mediation in the Airline Industry
The experience of the airline industry under the Railway Labor Act
is covered in another chapter. This section is addressed only to the
narrower subject of the mediation phase of airline collective bargaining.
However, the problems that are involved in airline mediation in many
cases arise from such factors as technological changes in the industry, its
relative rate of growth and its financial position, or the structure of its
bargaining. These are more fully discussed in Chapter IV by Mark Kahn.
The high degree of regulation in the airline industry has an impact on
collective bargaining. Standards such as maximum flight hours per
month, minimum flight crews and safety regulations fix limits for certain
otherwise negotiable items. Although it is primarily the collective
bargaining for flight crews that is affected by regulations, requirements
such as those for mechanics’ licenses have entered into ground crew
bargaining as well. Other aspects of regulation are significant. To name
only two, the Civil Aeronautics Board route and service requirements
can affect scheduling of flight crews and assignment of ground crews
and CAB control over airline fare increases is important in the
negotiation of economic issues.
19
The Railway Labor Act of Fifty
Except for flight crews and mechanics, the airlines are less highly
organized than the railroads. Nevertheless, nearly all of the major airlines
and most smaller carriers bargain with some six or more craft
classifications, generally organized by different employee organizations.
In most cases each union bargains separately with each carrier oh a
systemwide labor agreement covering only one classification. There has,
however, been union organization across craft lines, resulting in multiunit bargaining with a single carrier in certain instances. In the past, also,
there have been attempts to develop multi-carrier bargaining by airline
company committees and on two occasions the International Association
of Machinists & ,Aerospace Workers engaged in multi-carrier
bargaining. While in the past both sides of the table have appeared to
believe that there might be theoretical advantages to joint negotiations,
no attempt has been made in that direction since 1966, when a 43-day
work stoppage followed an effort at joint bargaining between the IAM
and five major carriers. One factor which probably discourages the
carriers from joint bargaining is the highly competitive nature of the
airline industry. On the union side the occasionally demonstrated ability
to obtain greater benefits in successive negotiations with various carriers
encourages maintaining single company bargaining. Whether this
bargaining structure is to the ultimate advantage of either side is open to
question.
In recent years a number of carriers have found themselves in
financial difficulties and have looked with increasing concern on labor
costs, which constitute more than 50 percent of their operating costs. The
unions during the past several years have achieved substantial wage
gains, but are now finding that an increasing number of their members
are furloughed. Certainly other factors remote from collective
bargaining, such as the nation’s economic recession and rising fuel costs,
have had a major impact on both company earnings and employment but
whatever the cause, both direct negotiations and mediation have been
subject to increasing stress.
The influences .on collective bargaining of the development of the
industry and the technological changes that have occurred are reflected in
the issues that have been predominant in mediation. For most of the time
from 1936 to about 1968-69, the industry was in a period of growth in
traffic, revenue and employment. Based on Air Transport Association
data, employment in the scheduled airline industry rose from 39,713
workers in 1942 to 84,608 in 1948, 147,150 in 1958 and 300,451 in
1968. Since that time employment has fluctuated above and below the
20
Mediation of Railroad and Airline Bargaining Disputes
300,000 level with the most recent available figures showing a total of
307,318 in 1974.
Collective bargaining problems usually tend to be easier to solve in a
growing industry. An increasing number of jobs are available as traffic
grows, job promotion opportunities occur with some frequency, and
improving revenues tend to be reflected in higher wage scales as
employers yield more readily to union demands. However, in the airline
industry growth was not a straight ascent. As larger planes were
introduced, capacity sometimes has outrun traffic demand causing a
higher ratio of operating expenses to revenues and a related difficulty in
accommodating bargaining demands. More importantly for collective
bargaining, the introduction of jet aircraft changed job content and craft
needs leading to new difficult issues. As a result, the predominant issues
in airline mediation cases in recent years have been very difficult rules
problems. Since 1963, National Mediation Board records show only one
year when rules were not the predominant issue in one-third or more of
airline mediation cases and in seven of those 12 years rules issues were
predominant in more than 75 percent of airline mediation cases.
The broad impact of the introduction of jet planes on collective
bargaining in the airline industry can hardly be over estimated. In some
ways it parallels the effect of the introduction of diesel locomotives on
the railroads. Both raised questions of crew sizes and assignments, both
increased speeds and revenue capacity resulting in reduced need for units
of equipment and for employees to operate and service them.
In the airline industry the introduction of jet planes brought labor
problems on the flight deck. The pilots urged the need for a pilot-trained
third officer on jet aircraft, thus increasing the crew complement to four
including the flight engineer. However, the carriers strongly opposed the
cost involved in a four man crew while the flight engineers fought for
their continued identity as a separate craft. Over a period of several years
in the early 1960’s the question of who should occupy the third seat of
the jet aircraft flight deck crew became an almost insoluble issue in a
number of mediation cases and involved determinations by several
Boards. In time the adjustment was worked out on the individual carriers
through arrangements with the unions involved. On a number of carriers
the issue was settled by providing pilot training to flight engineers so that
the occupant of the third seat held both flight engineer and pilot licenses.
In any event, the occupant of the third seat must be technically qualified
to perform the duties of a flight engineer in accordance with FAA
licensing requirements.
21
The Railway Labor Act of Fifty
The impact of jets on junior pilots and on flight attendants has been
more gradual and continues to affect collective bargaining and create
mediation problems. With faster speeds, turnaround time could be
reduced and the same amount of service provided with fewer planes.
Thus promotional opportunities for junior pilots decreased. The
introduction of larger aircraft with much greater seating capacity further
expanded the airlines’ ability to provide more service with fewer pilots
and further limited junior pilots’ opportunities. The result has been a
growing militancy in collective bargaining by this group of younger
pilots and the surfacing of issues difficult to resolve in mediation. These
bargaining problems have not been made easier by the fact that there are
currently some 1,500 pilots on furlough throughout the industry.
The result of increased speeds and larger seating capacity has been to
improve job opportunities for flight attendants as the number assigned to
cabin crews has grown to accommodate more passengers. However,
other changes have introduced problems into flight attendants’
bargaining. Until recently, flight attendants were represented on many
carriers through the Stewards and Stewardesses Division of the Air Line
Pilots Association. Similarly, flight attendants on other carriers were
represented by a single local of the Transport Workers Union. The major
burden of handling negotiations was carried in great part by
representatives of the respective international organizations. Recent
internal reorganizations in both international unions, particularly ALPA,
have resulted in a shift of the responsibility for collective bargaining on
each carrier toward the flight attendants themselves, with a concomitant
loss of experienced bargaining leadership. Moreover, the current
movement in the nation toward equality of rights for women has been
echoed in the demands of the flight attendants. At the same time lifting
of restrictions relating to age and marital status has permitted flight
attendants to stay in their jobs and to look forward to making a career in
airline service. The combination of these factors has led to collective
bargaining changes. New bargaining issues have developed. For the first
time flight attendants are concerned with pensions and other issues
related to longevity and to gaining recognition and equality of treatment
with the longer established unions.
There are other reasons for airline bargaining problems in recent
years. On the carrier side the impact of the recent recession and the rapid
increase in fuel prices has meant a decline in passenger traffic and
greater costs, raising their break-even point to a higher percentage of
seating capacity. Many airlines are encountering financial problems.
They find it imperative to reduce costs by increasing the productivity of
22
Mediation of Railroad and Airline Bargaining Disputes
their employees. The contract changes they seek in their Section 6
notices usually are aimed at that objective and are not readily modified in
mediation. On the union side, too, new conditions are evident in their
bargaining demands. As indicated earlier, employment is no longer
rapidly increasing. Job security issues are becoming more important.
Some of the bargaining teams have had problems establishing their
priorities. The combination of these factors has made mediation in airline
disputes not only difficult but prolonged as the parties have
continued to resist accommodation.
One characteristic of airline bargaining which complicates mediation
is the opening of large numbers of issues. Although the same procedural
requirements of the Railway Labor Act cover both railroad and airline
negotiations, their bargaining practices have developed differently.
Airline contracts are not continuing instruments. They expire in their
entirety on the date set forth in the agreement. However, the status quo
provisions of the Act prevent a strike on that date unless the procedures
of the Act have been exhausted. As in the railroad industry, mandatory
mediation under the Act continues until settlement is reached or the
National Mediation Board determines that further efforts would be
fruitless. At that point the final procedures of the Act begin: the proffer
of arbitration, and, if the proffer is rejected, the final 30-day period of
restraint under the Act.
Opening their agreements on a large number of issues is a practice
followed by most airline unions. Ground service employees quite
commonly file some 70 or 80 demands, while flight crew organizations
in recent years have requested as many as 300 or 400 changes. Generally,
the carrier responds with its own extensive list of proposals for change.
Even if substantial progress is made in direct negotiations, the time spent
in mediation in such cases will inevitably be prolonged. When mediation
is sought in situations where a great number of issues remain open, the
mediator frequently will urge the parties to return to direct bargaining to
dispose of minor differences, so that they can reach a point at which
mediation assistance can reasonably be expected to lead to a settlement
within a limited period of time. The introduction of such an excessive
number of issues impedes mediation. If there is also a persistent
reluctance on the part of the bargainers to reduce the number of their
demands, the two factors together seriously obstruct a settlement.
The National Mediation Board has a statutory obligation to make
every effort, through mediation, to avoid interruptions of interstate
commerce. It has been upheld many times by the courts in the exercise of
its discretion in determining when further mediation would be
23
The Railway Labor Act of Fifty
unavailing. So long as large numbers of issues remain unresolved, cases
will probably continue to be held in mediation for extended periods until
the dispute is reduced to reasonable proportions. It becomes the
obligation of the parties to accept their collective bargaining
responsibilities and insure that they are fully met.
There is nothing in the Railway Labor Act to inhibit new approaches
to resolving these problems. A recent innovative step at National Airlines
is significant for future improved collective bargaining relationships in
the airline industry. The Airline Employees Association and National
have signed an agreement for their next round of bargaining which
specifically limits to ten the number of issues each party may open on.
They will negotiate and utilize mediation under the procedures of the
Railway Labor Act, but have agreed in advance to arbitrate any issues
they cannot resolve.
Another indication of union concern for the welfare of the industry is
evident in the several instances recently when unions agreed to forego
current wage increases to assist employing carriers to improve their
respective financial positions, and carriers have responded by modifying
plans to reduce employment.
Both of these developments are encouraging evidence of a
movement toward better collective bargaining relationships in the airline
industry.
Conclusion
The essence of the Railway Labor Act lies in its twin objectives: free
collective bargaining and protection of the public interest in maintaining
an uninterrupted flow of commerce. This chapter has examined the
impact of those two objectives on mediation and the collective
bargaining process in the railroad and airline industries. It has been noted
that the parties have a statutory obligation to exert every effort to
conclude and maintain agreements, but they retain the right to self-help.
The National Mediation Board has a statutory obligation to use its best
efforts in the public interest to bring the parties to agreement through
mediation. At times, the parties and the Board have seen their respective
obligations differently. In the public interest, the Board must weigh the
impact of a work stoppage, and the probabilities of one, before it releases
a case, thus sometimes prolonging mediation beyond the desires of the
parties. The significant point is that this requirement to continue in
mediation is the only real compulsion imposed by the Act on the
negotiating process. Although there are procedural requirements, there is
24
Mediation of Railroad and Airline Bargaining Disputes
no restriction on free collective bargaining. It is only in the timing of
self-help that the parties are restricted.
Given the over-riding public interest in maintaining interstate
commerce, the requirement to continue in negotiations cannot be viewed
as a substantive restraint on collective bargaining. Moreover, if the
parties were free of the restrictions of the Act following the expiration
date of an agreement or a moratorium, periodic interruptions of
commerce might well occur. It is a matter of record that,16 in industry
generally where employees may strike when their contracts expire, some
300 to 400 or more strikes are in progress in this Nation on any given
day. A total of 6074 work stoppages were reported in 1974, and 5200 in
1975, for all industry. These statistics can be compared with a total of 14
strikes in 1974, and 13 in 1975, under the restraints of the Railway Labor
Act. Thus it seems clear that the objectives of protecting the public
interest while retaining free collective bargaining are being achieved in
great measure through the mediation process.
It has been observed that the Railway Labor Act has permitted the
bargaining practices in the two industries governed by it to develop the
structure they have found most suitable to their needs. Thus, in railroad
local bargaining, changing traffic or other conditions that may require
changes in local rules or job assignments can be accomplished through
Section 6 notices at any time. The open-end contracts locally can adapt
to local needs promptly. National railroad bargaining, on the other hand,
through the moratorium for a fixed term, achieves a period of stability at
the national level. These approaches, however, are dynamic.
Modifications continue to occur. Recently, there has been a trend toward
including more issues under national bargaining. Thus, the coverage of
the moratorium has tended to become broader. If this trend continues, the
parties might do well to assess its impact and consider whether greater
national stability may be gained at the cost of the existing adaptability to
local conditions, or whether further restrictions limiting local Section 6
notices might at some point lead to more local problems with instability
at that level. The proper balance between these two approaches is worthy
of the parties’ most serious consideration.
The airlines, as indicated earlier, use the same Section 6 procedures
under the Railway Labor Act as the railroads do in their bargaining, but
they negotiate complete contracts which expire in their entirety at an
agreed-upon date. Airline bargaining, in that respect, has developed
along the same lines as in industry generally, without being restricted in
its structure by the requirements of the Act. This chapter has indicated
that recently a complicating factor in achieving settlements in airline
25
The Railway Labor Act of Fifty
bargaining has been the growing trend to open contracts on an excessive
number of issues. The result has been prolonged bargaining, prolonged
mediation and long overdue settlements, primarily because of the sheer
number of the issues. If after many months of bargaining a great number
of issues remain on the table, it is not realistic to believe that a 30-day
deadline will bring a settlement. The fact has been cited that during the
current decade the airline industry has had many difficult problems
which have raised new issues. Among them, the impact of technological
change on employment, increased fuel costs, the decline of traffic during
the recession, and various other factors have affected labor relations.
However, in collective bargaining it is normal to expect to move
gradually toward a desired goal rather than to attempt to solve all
problems in one bargaining round. It would be unfortunate if the
pressures of recent difficulties were permitted to weaken past good
relationships in the airline industry.
Finally, it should again be emphasized that the Railway Labor Act
provides only the framework within which the parties and the National
Mediation Board function to maintain free collective bargaining while
protecting the larger public interest. That the parties are free to develop
their relationships in accordance with their own interests is evident from
the different paths taken by the two industries under the Act. The
problems that disturbed labor relations in the railroad industry in the
1960’s are now being matched by airline labor relations problems in the
1970’s. Neither set of problems grew from any failure of the Railway
Labor Act. The issues were such that problems would have been
inevitable under any legislation, but without the Railway Labor Act the
public interest would have been less well protected.
__________
* Director, Office of Labor-Management Relations Services, U.S. Department of Labor
1. Brotherhood of Railroad Trainmen, et al v. Jacksonville Terminal Company, 394
U.S. 369, 70 LRRM 2961 (1969).
2. Eighteen of the 21 mediators on the staff of the National Mediation Board have past
experience in either the railroad or airline industry.
3. The existing literature on labor dispute mediation in the United States, through 1965,
was analyzed by Charles M. Rehmus in “The Mediation of Industrial Conflict: A
Note on the Literature,” Reprint 33, Ann Arbor: Institute of Labor and Industrial
Relations, 1965. Three major works in the field are Ann Douglas, Industrial
Peacemaking, New York: Columbia University Press, 1962; Walter Maggiolo,
Techniques of Mediation in Labor Disputes, Dobbs Ferry, N.Y., Oceana Press,
1971; and William Simkin, Mediation and the Dynamics of Collective Bargaining,
Washington: Bureau of National Affairs, 1971. Recent monographs that begin the
difficult task of analyzing why particular mediation techniques are useful in certain
situations and not in others are Kenneth Kressel, “Labor Mediation: An Exploratory
26
Mediation of Railroad and Airline Bargaining Disputes
Survey”, Albany, N.Y., Association of Labor Mediation Agencies, 1972; Eva
Robins with Tia Denen-berg, “A Guide for Labor Mediators,” Honolulu: University
of Hawaii Industrial Relations Center, 1976; and Joseph Krislov, “Mediation Under
the Railway Labor Act”, Labor Law Journal, May 1976.
4. Items (2) and (3) deal with independence of organization by both unions and carriers
and item (5) deals with settlement of grievances.
5. Machinists v. National Mediation Board, 425 F 2nd 527, 73 LRRM 2278 (1970).
6. D&TSL RR Co. v. UTU, 396 US 142, 72 LRRM 2838 (1969).
7. Machinists v. National Mediation-Board, op. cit., p. 527.
8. In recent years certain agreements on health and welfare, supplementary pensions
and the like have been incorporated in national contracts rather than in local
agreements.
9. Files of the National Mediation Board.
10. Railroad Technology and Manpower in the 1970’s. Bulletin 1717, U.S. Department
of Labor, 1972.
11. Handling of Rail Disputes under the Railway Labor Act, 1950-69, B.L.S. Bulletin
1753, U.S. Department of Labor, 1972—Michael H. Cimini, p. 1.
12. Ibid. p. 16.
13. Railroad Shopcraft Factfinding Study—U.S. Dept. of Labor, 1968. 86
Mediation of Railroad and Airline Bargaining Disputes
14. D&HRy. Co. et al, v. UTU, 450 F 2nd2603(1971), 26 LRRM2900, cert, denied, 403
U.S. 911, 77 LRRM 2404 (1971).
15. Ibid.
16. Monthly News Releases—U.S. Dept. of Labor, Bureau of Labor Statistics—Work
Stoppages.
27
Labor-Management Relations in the Airline Industry
CHAPTER IV
LABOR-MANAGEMENT RELATIONS IN THE AIRLINE
INDUSTRY
Mark L. Kahn*
When Title II brought the airline industry within the scope of the
Railway Labor Act in 1936, scheduled air transportation in the United
States was barely emerging from its rudimentary beginnings. There were
no unions among the industry’s ten thousand employees except for the
pilots, who had created the Air Line Pilots Association (ALPA) in 1931.
It was during 1936 that passenger enplanements exceeded one million for
the first time, six million ton-miles of mail were shipped by air, and the
1
Douglas DC-3 was activated. This superb airliner, which virtually
preempted commercial air transportation for a dozen years, could
initially carry 21 passengers up to about 1,500 miles at a cruising speed
of 188 miles per hour.
Since 1936, no major U.S. industry has sustained such remarkable
and consistent growth. The following benchmarks are illustrative:
1939
1949
1959
1969
1974
1975
Total U.S. Scheduled Airlines
(Domestic and International Service)
Passenger- Freight and
U.S.
Aircraft
Miles
Express
Mail
Miles
Employment
(billions) (millions of ton-miles) (millions)
0.8
2.7
8.6
91
15,914
9.0
179.2
61.1
456
80,994
36.4
646.1
200.3
1,030
160,690
125.4
3,350.4
1,339.9
2,385
311,922
162.9
4,980.9
1,150.9
2,258
307,318
162.8
4,766.1
1,097.3
2,241
289,926a
Whereas only two million passengers were boarded in 1939, 172
million were enplaned in 1969, 205 million in 1975. The airlines’ share
of all domestic intercity travel by common carrier (rail, bus and plane)
was 11.4 percent in 1949, 43.6 percent in 1959, 76.0 percent in 1969, and
78.8 percent in 1975. The (U.S. and foreign) air share of overseas travel
1
The Railway Labor Act at Fifty
between the U.S. and other countries reached 50.6 percent in 1950, 75.4
percent in 1959, 90.6 percent in 1969, and 93.1 percent in 1975, of which
slightly more than half has been on U.S. carriers in recent years.
Although total cargo carried by the U.S. airlines increased dramatically
from 2.3 billion ton-miles in 1965 to 5.9 billion in 1975, this amount still
represents, obviously, only a small proportion of total inter-city and
overseas cargo movements. The U.S. airlines are still predominantly
passenger oriented: in 1975, 80.4 percent of revenues were derived from
passenger traffic.2
This chapter will first summarize the development and nature of
public regulation, in which ALPA has played a key role and which
exercises a pervasive influence on all aspects of the industry including
collective bargaining. It will then identify those characteristics of the
industry, economic and technological, which have been particularly
relevant to the shaping of union-management relations, and examine the
growth and structure of labor organization. Against this background, the
structure and process of collective bargaining—and the influence of the
Railway Labor Act on the making and amending of airline collective
bargaining agreements—will be described and appraised. Here, too, the
substantive outcomes of collective bargaining in relation to employee
welfare and utilization will be discussed. Finally, the handling of
grievances under the prevailing “system board of adjustment” machinery
inspired by the Railway Labor Act is examined. Findings and
conclusions complete the chapter.
Public Regulation and Support3
Scheduled air transportation was inaugurated by the U.S. Post Office
in May 1918, using military planes and pilots for regular air mail flights
between New York City and Washington, B.C. Three months later, the
Post Office acquired its own pilots and aircraft. From then until 1925,
flying mail by air remained a Post Office activity. Congress, acting on
the belief that an effective air transportation system would make a vital
contribution to the national defense, initiated a series of legislative
actions in the 1920’s and 1930’s to encourage its healthy and rapid
development. Under the Kelly Act of 1925, air mail was turned over to
private firms under contract with the Post Office. To ensure air safety,
these enterprises were soon placed under intensive safety regulation. To
underwrite the economic viability of these pioneering air carriers,
Congress authorized the Post Office to provide them with direct
subsidies through adjustable air mail rates. Under other legislation,
indirect subsidies were furnished through Federal weather services,
2
Labor-Management Relations in the Airline Industry
airways, aeronautical research and various other services. Finally, in the
belief that open entry could undermine its objectives, Congress imposed
direct controls over the allocation of airline routes.
The present basic pattern of public regulation, evolving out of the
prior thirteen years of experimentation and experience, was established
by the Civil Aeronautics Act of 1938. A new regulatory commission,
renamed the Civil Aeronautics Board (CAB) in 1940, was empowered to
formulate and prescribe airline route structure, regulate fares, subsidize
individual carriers by way of air mail rates based on need rather than on
service, supervise and control all inter-airline agreements and mergers,
and promote air safety and national defense by the issuance of
appropriate Civil Air Regulations. Aircraft accident investigation was
also an exclusive CAB function. A new Federal agency, the Civil
Aeronautics Administration (CAA), was made responsible for
maintenance of the airways, implementation of the CAB’s safety
regulations (CAR’s), and (later, under the Federal Airport Act of 1946)
airport development.
Twenty years later, primarily to coordinate the safety of U.S.
aviation as a whole—military, commercial and private—Congress
enacted the Federal Aviation Act of 1958. By that time, more than half of
the operations at the 128 CAA-operated aircraft control towers in the
U.S. related to “general” aviation (i.e., all kinds of non-military flying
except airline). The Federal Aviation Agency (FAA), created by the 1958
Act as the CAA’s successor, acquired the safety rule-making function
previously exercised by the CAB. The CAB retained, however, all of its
powers and duties pertaining to economic regulation and safety
investigation.
One other piece of legislation should be noted. On October 15, 1966,
Public Law 89-670 established the Federal Department of Transportation
(DOT). Aircraft accident investigation was transferred from the CAB to
a new National Transportation Safety Board (NTSB) under the DOT, but
the CAB’s economic role remained unchanged. The FAA, with no
change in its initials or functions, was renamed the Federal Aviation
Administration.
ALPA and Airline Labor Legislation4
The massive economic contraction that began at the end of 1929 did
not prevent, because of public financial support, the continued expansion
of air transportation. Other aviation activities contracted sharply,
however,5 and many unemployed pilots were looking for work. In the
spring of 1931, following the establishment of a new air mail rate
3
The Railway Labor Act at Fifty
formula in conferences with the Postmaster General, the air carriers
simultaneously imposed an industrywide wage cut on the pilots. In
response, and apparently before the carriers appreciated the situation, the
pilots promptly organized ALPA, the industry’s first effective labor
organization.
An early test of ALPA’s effectiveness arose when E. L. Cord’s
Century Airlines, on February 9, 1932, surprised the Nation by offering
to carry all U.S. air mail at one-half the prevailing rate. Four days later,
Century suddenly advised all of its pilots, who had been protesting
proposed wage cuts, that their “resignations” were accepted. ALPA
reacted by turning House Post Office Committee hearings, the following
month, into a forum on the merits of Century’s labor dispute. ALPA
handled the situation so effectively that Cord had difficulty in obtaining
government approval for the qualifications of its new pilots; passenger
traffic fell off after some accidents; and Century Airlines was liquidated.
ALPA appreciated the implication of this experience in relation to its
effectiveness as the pilots’ spokesman in Washington, B.C. It made no
attempt for six more years to engage in collective bargaining. Instead,
ALPA’s resources were devoted, during this period, to a remarkably
successful effort to promote its members’ objectives by lobbying.
Congress was indeeed receptive. As Congressman James M. Mead said
in a May 1932 statement to the House Commerce Committee:6
It is my honest opinion that if these courageous men [the
pilots] who are pioneering in this new field are given the
opportunity they will contribute mightily to the
advancement of aviation, and both the country and the
industry will profit by the adoption of such a policy. I
know of no instance wherein the Government has a
better right to step in and speak for the men than in this
particular industry.
Nevertheless, an attempt at that time by ALPA to bring the airlines
under the jurisdiction of the Railway Labor Act was not successful.
National Labor Board Decision No. 83
What soon emerged as the basic economic issue between ALPA and
the air carriers was whether pilot pay would relate primarily to miles
flown or to cockpit hours. The carriers, anticipating the availability of
speedier aircraft, wanted to discard the base plus mileage formula
employed by the Post Office until 1926 and later retained by the
privately owned air mail contractors. ALPA set an industrywide strike
date for September 30, 1933, after the carriers announced plans for
4
Labor-Management Relations in the Airline Industry
implementing pilot pay without a mileage component, and thus
persuaded the National Labor Board (NLB), recently created under the
National Industrial Recovery Act, to accept jurisdiction of the dispute.
The carriers, as a condition demanded by ALPA for calling off the
pending strike, agreed to accept the NLB decision with full retroactivity.
This decision, docketed as No. 83, was released on May 10, 1934.
Decision No. 83 incorporated features of each party’s proposals,
asserting that pilot pay be composed of base pay increasing through the
eighth year of service, hourly (flight) pay with a 50 percent minimum for
night flying and increasing with the speed of the airplane up to a “200 or
more” miles per hour rate, mileage pay, and the retention of existing pay
differentials for hazardous terrain and for copilot compensation. The
NLB rejected ALPA’s request for a monthly mileage limitation, but did
propose a maximum of 85 flying hours per month.
ALPA was happy with this pay formula. Despite the carriers’ earlier
commitment, however, not a single employer placed Decision No. 83
into effect. (As a matter of law, Decision No. 83 was not legally binding
because the air mail carriers in May of 1934 were not the same corporate
entities that had made the commitment.) ALPA turned to Congress for
enforcement, with the result that the Air Mail Act of 1934 required
carriers to “conform to decisions of the National Labor Board.” Because
Decision No. 83 contained a limit of one year on its effectiveness, ALPA
persuaded Congress to place the following provision in the Air Mail Act
of 1935:7
Section 13. It shall be a condition upon the holding of
any air mail contract that the rate of compensation and
the working conditions and relations for all pilots and
other employees of the holder of such contract shall
conform to decisions heretofore or hereafter made by the
National Labor Board or its successor in authority,
notwithstanding any limitation as to the period of its
effectiveness included in any decision heretofore
rendered. This decision shall not be construed as
restricting the right of any such employees by collective
bargaining to obtain higher rates of compensation or
more favorable working conditions and relations. [Italics
added.]
e II, Railway Labor Act
ALPA, in 1934, also revived its earlier unsuccessful effort to bring
air transportation under the Railway Labor Act. In 1935, during Senate
5
The Railway Labor Act at Fifty
hearings in May and June, this proposition was endorsed by the Federal
Coordinator of Transportation, the Railway Brotherhoods and the
International Association of Machinists. The air carriers, unlike 1932, no
longer expressed opposition to such legislation. They hoped that
inclusion under the Railway Labor Act would provide a means of
escaping from Decision No. 83 when permanent air transport legislation
would be enacted. With all this support and no significant opposition,
Title II of the Railway Labor Act was signed on April 10, 1936,
extending to air transportation “All of the provisions of Title I of this
Act, except the provisions of Section 3 thereof [establishing the National
Railroad Adjustment Board] . . .”
Whereas the original Railway Labor Act of 1926, as Charles Rehmus
points out in Chapter I, was jointly drafted and supported by the railroad
industry and its well-established unions against a background of
considerable collective bargaining experience and legislative
experimentation, Title II applied this Act to a young and unstable
industry in which only one employee group, the pilots, had become
organized and in which collective bargaining had never taken place. The
text of the Railway Labor Act, including Title II, is found in Appendix
A.
Briefly, the Act established a three-member National Mediation
Board (NMB) whose members are appointed by the President for
staggered three-year terms. In addition to providing mediation services,
the NMB handles representation disputes, interprets agreements reached
in mediation, and will upon request appoint neutral arbitrators for airline
grievance cases. Where a dispute involving the making or amending of a
collective bargaining agreement is not resolved in direct negotiations
between the parties, either party may invoke mediation by the NMB or
the NMB may initiate mediation on its own motion. When the NMB
decides that the dispute cannot be resolved in mediation, it is required to
invite the parties to accept arbitration. If arbitration is rejected by either
or both parties, which has usually occurred, a thirty-day status quo period
goes into effect. If the unsettled dispute threatens “to deprive any part of
the country of essential transportation service,” the President of the
United States, at his discretion, may appoint an emergency board to
investigate the issues and issue non-binding recommendations. When
this happens—thirty-three emergency boards were named for airline
disputes between 1946 and 1966—the status quo must be maintained
(except by mutual agreement) until thirty days after the emergency
board’s report is issued.
6
Labor-Management Relations in the Airline Industry
Title II requires in Section 204 that disputes involving the
interpretation or application of existing agreements must, if unsettled, be
referred to system (or multi-carrier) boards of adjustment pending the
establishment (under Section 205) of a permanent National Air Transport
Adjustment Board at the direction of the NMB (which has not occurred).
The Railway Labor Act prohibits work stoppages over “minor” disputes:
i.e., regarding grievances and the interpretation and application of
existing agreements.
Under Section 2, Fourth, of the Railway Labor Act, employee
representation must be by “craft or class” on a system (i.e., carrier-wide)
basis. On the railroads, bargaining units were already well defined in
practice prior to 1926. On the airlines, however, the authority of the
NMB to define the “craft or class” unit for representation purposes has in
some instances significantly affected the evolution of collective
bargaining (see Chapter II by Dana Eischen). Elections by secret ballot
are conducted by a staff mediator upon a showing that a “substantial
number” of employees in a unit desire representation, and the
organization selected by a majority of the “craft or class” becomes the
representative of the entire group. If sufficient authorization cards have
been signed, an election may not be a prerequisite for certification.
Voluntary recognition without NMB certification is permissible and not
unusual in the absence of any challenge from a rival union, and may
involve a group smaller than a standard “craft or class.”
We will return, below, to an examination of the operation and impact
of the Railway Labor Act on airline collective bargaining.
Civil Aeronautics Act (1938): Labor Relations Provisions
ALPA was determined to cement its legislative accomplishments by
persuading Congress to retain, in the permanent aviation legislation that
was being formulated in 1937, the wage minimums and hours maximums
of Decision No. 83, and also to require carrier compliance with the
Railway Labor Act as a condition for the retention of a route certificate.
Such provisions were strongly opposed by the Air Transport Association,
which contended that the Railway Labor Act itself provided airline
employees with sufficient protection. ALPA waged a vigorous legislative
battle throughout the lengthy hearings during 1937 and in April 1938. A
clause urged by ALPA that would have made the loss of a route
certificate mandatory for a violation of the Railway Labor Act was
eliminated by the Joint Conference Committee. Otherwise, both of
ALPA’s objectives were obtained. Section 401 of the Civil Aeronautics
Act of 1938, enacted July 25, required compliance with Decision No. 83
7
The Railway Labor Act at Fifty
of the NLB “notwithstanding any limitation therein as to the period of its
effectiveness” for both domestic and (on an annual basis) overseas air
transportation. Section 401 also prescribed:
(3) Nothing herein contained shall be construed as
restricting the right of any such pilots or co-pilots, or
other employees, of such air carrier to obtain by
collective bargaining higher rates of compensation or
more favorable working conditions or relations.
(4) It shall be a condition upon the holding of a
route certificate by any air carrier that such carrier shall
comply with Title II of the Railway Labor Act, as
amended.
Twenty years later, although massive changes had taken place in the size
and scope of air transportation as well as the unionization of its
employees, these labor relations provisions were retained intact as
Section 401(k) of the Federal Aviation Act of 1958. Accordingly,
compliance not only with the Railway Labor Act but also with NLB
Decision No. 83—an ad hoc pilot pay formula and monthly hours
limitation that by its own terms was effective for only one year—remain
part of airline labor relations law forty years later.
Although American unions traditionally emphasize collective
bargaining, it is easy to understand why ALPA, a young craft union with
only one thousand members as of 1938, elected to concentrate its limited
resources on legislative activity in Washington, B.C. For ALPA’s
constituents, it was unquestionably a shrewd and productive decision.
Only after the passage of the Civil Aeronautics Act did ALPA turn to the
negotiating table. Its first contract, with American Airlines, was executed
on May 15, 1939.
The Airline Industry: Structure and Characteristics8
All scheduled carriers (except the “so-called commuters”) hold
“certificates of convenience and necessity” granted by the CAB for
scheduled service on specific routes and stops. As of 1976, there were
eleven “Domestic Trunk Lines”: American, Braniff, Continental, Delta,
Eastern, National, Northwest, Pan American, Trans World, United and
Western. All of these airlines except United (which is the largest
domestic carrier) are also categorized as “International and Territorial”
(in which regard Pan American is the largest by far). These eleven
carriers collected, in 1975, 87.8 percent of the industry’s total revenue.
Twenty-four trunk carriers were certificated by the CAB in 1938 in
accordance with the “grandfather clause” of Section 401 (a) of the Civil
8
Labor-Management Relations in the Airline Industry
Aeronautics Act, under which any airline previously operating on a
regular basis was automatically entitled to certification. Since then, by
means of twelve mergers and one abandonment, they have become the
eleven airlines named above. The CAB has not permitted any new firm
to enter the industry as a trunk line.
Local Service Carriers were initially granted route certificates by the
CAB in 1946 on an experimental basis in order to extend air service to
smaller communities not served by the trunks. Twenty-three firms
(originally called “feeders”) entered this field. Thirteen survivors were
granted permanent certificates in 1955, and subsequent mergers reduced
their number to eight as of 1976: Allegheny, Frontier, Hughes Air West,
North Central, Ozark, Piedmont, Southern and Texas International. Their
1975 operating revenues of $1.4 billion represented 8.8 percent of total
industry revenue.
The rest of the scheduled industry included, in 1975, three all-cargo
carriers (Airlift, Flying Tiger, Seaboard), three helicopter lines (Chicago,
New York, San Francisco-Oakland), four intra-Alaska and two intraHawaiian airlines. The CAB has also issued, since 1962, charters for
supplemental (non-scheduled) air operations to a number of companies.
Air transport companies using planes which do not exceed 12,500
pounds maximum gross take-off weight, and carriers operating entirely
intra-state (Pacific Southwest, Texas Southern) are not subject to CAB
economic regulation but must, of course, satisfy the Federal Aviation
Regulations.
In spite of the restrictions on entry and the declining number of
firms, each carrier has regarded its market as highly competitive. This is
primarily a consequence of the CAB’s policy of certifying at least two
carriers (and up to as many as five) on each major route. Other
transportation media, including the private automobile, provide
passengers and shippers with alternatives. On international routes,
foreign-flag air carriers provide vigorous competition.
Price competition has been restricted by the CAB’s policy of
uniform fares for any given class of service and, on international routes,
by fares negotiated through the International Air Transport Association.
Hence, the airlines have exerted much effort and ingenuity to attract
patronage by means of emphasis on special service features, frequency
and convenience of schedules, and other non-price devices. Until now,
however, newer, faster and more comfortable aircraft types have been the
principal means of attracting customers. Accordingly, as new models
have become available, each carrier has sought to acquire them as soon
as possible and to introduce them first on its most competitive routes.
9
The Railway Labor Act at Fifty
Aircraft technology has inundated the industry in four major waves. 9
We have already mentioned the twin-engine DC-3, which dominated the
industry from 1936 to 1947. Much larger, four-engine propeller aircraft,
such as the DC-6, became available in the late 1940’s, and provided the
bulk of transportation capacity during the decade of the 1950’s. The DC6, with a range of 2,500 miles, could carry 58 passengers at a cruising
speed of 300 miles per hour. The first turbojet planes—the Boeing 707
and the DC-8—came on-line in 1959, with cruising speeds above five
hundred miles per hour and enough room for about 120 passengers.
Within three years, the takeover by jet propulsion was so rapid that
piston aircraft were providing less than one-fifth of the industry’s
passenger-miles. The 1960’s also witnessed the activation of smaller
medium-range turbo jets (like the BAC-111, B-737 and DC-9). Today,
piston propulsion has virtually disappeared from scheduled service
except on some small “commuter” carriers.
The fourth and still current wave began in 1970: the wide-bodied jet.
First to enter service was the mammoth B-747, 640,000 pounds
maximum gross weight (compared to the DC-3’s 24,000, the -DC-8’s
273,000), a range of 6,900 miles, able to carry anywhere from 363 to 447
passengers (depending on interior cabin design) at a 600 m.p.h. cruising
speed. Soon to follow were two somewhat smaller wide-bodied models,
the DC-10 and the Lockheed 1011, designed for 250 to 300 passengers,
each with three jet engines (the B-747 has four). By the end of 1975, 293
wide-bodied jets were in scheduled service.
Prior to 1954, each certificated carrier was assured a reasonable rate
of return by means of an air mail rate, set retroactively by the CAB, at a
level that would achieve this standard. Indeed, the subsidy fraction of
airline revenue was quite substantial until 1946. Such subsidization
encouraged airline managements to minimize short-term cost
considerations when, for example, bidding for new routes or seeking to
avoid strikes. Since 1954, however, all major air carriers have been paid
for transporting mail at a uniform service rate. Local service carriers are
still subsidized, but at a uniform “class rate” instead of an individual
basis.
Rates of return on investment (or on equity capital) have been
extremely uneven since 1954, for the certificated industry as a whole and
also among the individual carriers. Return on investment fell somewhat
erratically from 10.2 percent in 1954 to 1.6 percent in 1961; climbed up
to 12.0 percent in 1965; fell to 1.2 percent for 1970; and rose steadily to
a 1974 rate of 6.4 percent. For 1975, the industry actually lost $100
10
Labor-Management Relations in the Airline Industry
million, but with profits and losses among the trunk lines distributed as
follows:10
Braniff
Delta
National
Northwest
Western
Profits
($ mill.)
21.3
37.4
10.6
41.5
12.3
American
Continental
Eastern
Pan American
Trans World
United
Losses
($ mill.)
20.5
9.7
53.1
53.1
86.3
4.5
We noted, at the beginning of this chapter, the industry’s dramatic
growth in traffic through 1969. Until 1970, remarkable increases in
output per employee had been consistently outpaced by traffic increases,
so that employment grew five-fold from 1939 to 1949, and then roughly
doubled during each of the next two ten-year periods. Since 1970,
however, difficulties in the U.S. economy involving high rates of both
inflation and unemployment, fuel shortages in 1973-74, and an immense
rise in fuel prices (domestically, from a 1973 average of 12 cents per
gallon to 22 cents for 1974; for international service, from 13 cents per
gallon in 1973 to 34 cents per gallon for 1974) have restrained traffic
growth to lower rates, not only interrupting employment growth after the
1969 peak of 312,922 but cutting airline jobs back to 307,318 at the close
of 1974, divided among job categories as follows:
U.S. Scheduled Airlines—1974 Employment
Number
Pilots and Copilots
26,046
Other Flight Deck Personnel
7,420
Flight Attendants
41,437
Communications Personnel
1,777
Mechanics
46,589
Aircraft and Traffic Servicing
89,686
Office Employees
60,192
All Others (incl. managerial)
34,171
---------Total Employment
307,318
Percent
8.5
2.4
13.5
0.6
15.2
29.2
19.6
11.1
------100.0
SOURCE: Air Transport Association, Air Transport 1975, p. 28.
11
The Railway Labor Act at Fifty
Except among clerical and office employees, airline personnel are highly
organized. In accordance with the system-wide, craft or class basis of
representation under the Railway Labor Act, most airlines negotiate
separate collective bargaining agreements for pilots, flight attendants,
flight dispatchers, mechanics (and related personnel), “clerical, office,
fleet and passenger service” employees (a broad unit inherited from
railroad practice which, in some instances, has been fragmented by
voluntary recognition), and stock and stores employees. In many cases,
the latter three units have come to be represented by the same labor
organization, a situation which in turn is conducive to joint bargaining by
the single carrier applicable to all of the units represented by the same
union. Some airlines also have contracts covering non-pilot flight
engineers, food service employees, guards, communications (radio and
teletype) personnel, and/or other small units. As one example, United
Airlines enjoyed collective bargaining relationships with the following
units as of April 1976:
Bargaining Unit
Pilots
No. of
Employees
5,236
Flight Attendants
7,401
Mechanics & Related
Ramp & Stores
Food Service
Dispatchers
Guards
Meteorologists
Teletype Operators
Flight Simulator
Operators
10,633
4,892
2,093
135
114
21
13
16
Labor Organization
Air Line Pilots Association
(ALPA)
ALPA—(Assn. of Flight
Attendants)
International Association of
Machinists and Aerospace
Workers (IAMAW)
IAMAW
IAMAW
IAMAW
IAMAW
Transport Workers Union (TWU)
IAMAW since March 1976,
formerly Communications
Workers of America (CWA)
Air Line Employees Association
(ALEA) under termination will be
technologically obsolete by end of
1976
SOURCE: United Air Lines. In 1966, this airline entered into a ten-year agreement with
the TWU on behalf of its remaining Flight Navigators, which anticipated their
12
Labor-Management Relations in the Airline Industry
displacement by inertial guidance technology. United no longer has any Navigators
on its active payroll.
Bargaining between the IAMAW and United now takes place jointly on
behalf of all of the IAMAW units except the newly acquired Teletype
Operators and the Guards. United’s “fleet service” employees are in the
IAMAW units, while its clerical, office and passenger service personnel
are not represented by a union.
This is not the place for tracing the history of unionization on the
airlines. ALPA has bargained for virtually all airline pilots since 1942
(Pan American’s and American Overseas’ since 1946) except at
American Airlines, where the independent Allied Pilots Association was
established in 1963 following a dispute with ALPA’s “mandatory”
policy in regard to the third (Flight Engineer) seat.» Mechanics began to
organize in 1937, and were generally under contracts by 1942.
Substantial organization among other categories began at the end of
World War II, and large gains in unionism took place during the late
1940’s.
Rival unionism has been a common phenomenon within many
“crafts or classes” and persists today as a factor affecting union behavior
in collective bargaining. Flight Attendant representation today is divided
between ALPA’s Association of Flight Attendants (AFA) and the
Transport Workers Union (TWU). An aggressive organizing effort by the
Teamsters Union is in process, however. In addition to small units at
Flying Tiger, SFO Helicopter and Seaboard World, the Teamsters in
March 1976 ousted ALPA/AFA as the representative of Northwest’s
Flight Attendants. Teamster organizing efforts at National Airlines are
reported to have been a factor in the 127-day Flight Attendant strike that
ended on January 5, 1976. The representation of Mechanics and Related
employees, as well as those in Stock and Stores, is predominantly
IAMAW but with TWU speaking for large units at American and Pan
American (plus several small ones). An aggressive Air Mechanics
Fraternal Association now represents Mechanics at Hughes Airwest and
Ozark and is seeking to expand. According to the New York Times,
covering the IAMAW strike at United Airlines in December 1975:12
Mr.
Thomas
[IAMAW
spokesman]
also
acknowledged that the Union’s stance might have been
stiffened in response to the challenge of a rival union
seeking to represent United’s mechanics. The rival body,
the Aircraft Mechanics Fraternal Association, . . . will
13
The Railway Labor Act at Fifty
argue for the right to represent United’s 10,800
machinists at a mediation board hearing early next year.
Four different unions are presently holding representation rights within
the “clerical, office, fleet and passenger service” units, and also
competing for additional members there: Air Line Employees
Association (ALEA, technically an ALPA affiliate), Brotherhood of
Railway and Airline Clerks (BRAG), IAMAW and the Teamsters. The
Teamsters also represent Stock and Stores units on six airlines (including
three trunks).13
Given the fact that most airlines deal with four to six major
bargaining units in collective bargaining, that the bargaining is on a
single-carrier basis, that the bargaining process under the Railway Labor
Act is (as we shall see) often a protracted one, and that jurisdictional and
representation disputes are not uncommon, it is understandable that the
airline industry is rarely free of significant union-management issues and
potential work stoppages.
The economic characteristics of air transportation make the airlines
relatively vulnerable to strikes. Considerations of safety (and the Federal
Aviation Regulations or FAR’s), reinforced by public relations
considerations for a safety-conscious passenger market, make it
impractical in most instances for any carrier to attempt to operate in the
face of a strike by any major bargaining unit. An airline cannot produce
extra product in anticipation of or after a strike, as can a factory, nor can
it provide service mechanically, during a strike, like a highly automated
public utility. Strike-lost traffic is simply handled by competing airlines
or does not move by air. Substantial fixed costs continue during any
strike. Moreover, it may take a long while after the resumption of
operations for traffic to return to pre-strike levels. Not only have hitherto
loyal customers (for cargo as well as passenger transportation)
discovered the virtues of the competition, but a flood of precautionary
transfers of future reservations to non-struck carriers inevitably occurs.
Collective Bargaining
Structure
Single-carrier bargaining prevails in the airline industry. The few
instances of multi-employer bargaining have taken place only by mutual
agreement of all parties. 14 With limited and transient exceptions, the
unions have strongly opposed bargaining with more than one carrier at a
time. The only strong union proponent of multi-employer bargaining has,
in the past, been the IAMAW, which in 1953 resolved a common dispute
14
Labor-Management Relations in the Airline Industry
with five carriers in joint mediation. These carriers rejected joint
negotiations the following year, although joint mediation ultimately did
take place with four of the airlines participating. Another IAMAW effort
to encourage joint bargaining with the large carriers in 1957 was not
successful. In 1966, however, after concurrent bargaining on an
individual basis between the IAMAW and five carriers (Eastern,
National, Northwest, TWA and United), joint mediation was voluntarily
accepted. No settlement was reached in mediation, or after an Emergency
Board (No. 166) issued recommendations, and the IAMAW conducted a
43-day five-carrier strike in July and August.
The carriers would, in fact, find multi-employer bargaining with
major units difficult to implement. The carriers differ immensely in size,
route structure, aircraft types, economic health and other characteristics.
Similar work and pay provisions can have substantially varied cost and
utilization effects when applied at different airlines. In addition,
strenuous route-by-route competition among the airlines tends to weaken
the capacity of managements to present a common front at the bargaining
table. In 1945-46, serious employer efforts to evolve a united industry
position, including the formation of an Airlines Negotiating Conference
(ANC), took place to deal with ALPA on issues relating to the activation
of larger four-engine propeller aircraft. Such efforts were vigorously and
successfully resisted by ALPA.
A 26-day pilot strike against TWA began on October 21, 1946, after
an Emergency Board (No. 36) issued recommendations that were
unacceptable to ALPA. This was the first major airline strike since the
1932 Cord work stoppage. An agreement to arbitrate the unresolved
issues—covering pilot pay on the new DC-4 and Constellation aircraft—
ended the strike. This arbitration award improved the Decision No. 83
formula by extending the speed brackets for hourly pay to a 300 milesper-hour and above level, increasing base pay by $50 per month, and
raising mileage pay somewhat above the Emergency Board’s
recommendations. ALPA, having consistently refused to deal with ANC
even as the representative of any one carrier, thus broke through the use
of Decision No. 83 as a pay ceiling that had existed ever since 1934.
ALPA still sought a means of recognizing the increased size of new
aircraft types in the formula for pilot pay, which the TWA settlement did
not include. On April 19, 1947, ALPA persuaded Eastern Air Lines to
grant the industry’s first “gross weight pay” provision under which each
Captain would receive (in addition to all other earnings) one and threequarters cents per hour for every 1,000 pounds of the plane’s maximum
certificated gross weight (yielding, for example, $1.26 per hour in the
15
The Railway Labor Act at Fifty
DC-4). By the end of ALPA’s 1947-48 round of single-carrier
bargaining, a “gross weight pay” element had been added to the pay
formula at every major airline, including TWA. As for the ANC, it had
been scrapped by the carriers on February 28, 1947.
The lessons of this experience were not lost upon ALPA or, for that
matter, other airline unions, namely, that by adhering to single-carrier
bargaining, and by establishing precedents at one airline that other
airlines could then be pressed to concede—a process the carriers aptly
term “whipsawing”—maximum bargaining table leverage could be
exerted by the unions. ALPA also recognized the valuable bargaining
wedge it possessed in the “incremental” pay approach of Decision No. 83
plus “gross weight pay.”
Hence, in the late 1950’s, ALPA blocked efforts by the carriers to
discard Decision No. 83 and the “incremental” approach to pilot pay on
turbojets. American Airlines, for example, urged upon ALPA a “Positive
Pay Plan” composed only of base plus mileage pay. Looking for a carrier
that would concede a liberal differential for turbojets based on
incremental pay elements, ALPA found one in National Airlines. As
ALPA President Sayen later reported to the membership: 15
The terms of the agreement with National, although not
entirely satisfactory, were accepted to establish the fact
that the traditional pilot pay structure was to apply to jet
aircraft even though such application had already been
rejected by important segments of the industry. The
importance of establishing this precedent at that time
was fully demonstrated later.
Now, almost exactly 2 years later, a jet rate of
$2,679 a month or $32,145 a year has been established
on Northeast Airlines . . . $5,328 a year above the
National settlement. Although the above figures ,are for
captains, commensurate if not greater improvements
were made in the pay of first and second officers. This
progress does not come as a surprise. It was foreseen and
is a reflection of our traditional bargaining methods and
techniques.
As this writer observed in 1971: 16
From ALPA’s viewpoint, this adherence to increment
pay has been a shrewd policy. Emergency Boards have
always been ready to accept the desirability of building
upon the “established” method of wage determination,
given their wish, or compulsion, to express
16
Labor-Management Relations in the Airline Industry
recommendations in terms of “rational” criteria.
Moreover, in an industry that is the beneficiary of much
public interest and concern, it is far more acceptable for
the pilots to seek extensions of mileage and hourly pay
schedules, revisions in the gross weight pay formula, and
changes in pegged speeds, than to demand explicit direct
pay increases. Similarly, ALPA found that it was more
effective, during the 1950’s, to obtain shorter hours
indirectly by way of a complex package of new work
and pay rules, than to demand open reductions in
working hours or monthly mileage limits.
The non-pilot airline unions have not had the advantage of a minimum
pay formula like Decision No. 83; but the “whipsaw” approach during
successive “rounds” of bargaining has been consistently and effectively
applied by them.
Recognizing that multi-employer bargaining is not feasible, and
casting about for a means to strengthen the ability of single carriers to
resist the economic impact of strikes, the airline industry evolved a
Mutual Aid Pact (MAP) under which a struck carrier receives substantial
payments during the strike period from other MAP members. As
originally created on October 20, 1958, by six major carriers, MAP
called for payments if a strike involved union demands “in excess of or
opposed to” recommendations by a Presidential Emergency Board or
took place before the union had “exhausted the procedures of the
Railway Labor Act, or which is otherwise unlawful.” Under these
conditions, the non-struck MAP members were to pay the airline on
strike their net income from strike-diverted traffic, referred to as
“windfall” payments. CAB approval of this Pact, required under Section
412 (b) of the Federal Aviation Act, was granted on May 20, 1959. To
encourage other carriers to join, MAP was revised on March 22, 1960, to
provide benefits when no Presidential Emergency Board had been
established prior to a strike. On March 26, 1962, another revision
guaranteed each struck carrier, while shut down, at least 25 percent of its
“normal air transport operating expense” by means of “supplemental”
payments, as necessary, on top of the “windfall” payments. Under the
latest revision effective October 31, 1969, the windfall plus supplemental
payments are 50 percent of normal operating expenses during a strike’s
first two weeks, 45 percent for the third week, 40 percent for the fourth
week, and 35 percent for the duration. The contributions of MAP
members, after payment of windfall receipts, are limited to one percent
of each member’s air transport operating revenue. Currently, MAP
17
The Railway Labor Act at Fifty
membership includes all of the trunk and local service airlines except
Delta (which bargains only with ALP A), Pan American (which
withdrew in 1975 subsequent to a contract settlement with ALP A),
Allegheny and Southern.17
Each improvement in the MAP benefit formula has been approved
by the CAB despite strenuous efforts by airline labor organizations to
have the Pact disapproved or its benefits modified downward. On August
8, 1974, the U.S. Court of Appeals, D.C. Circuit (No. 73-1214) rejected
an ALPA petition to set aside the CAB’s approval on February 27,1973,
of MAP in its current form. Chief Judge Bazelon’s decision included this
observation:
Despite the CAB’s experience with the Pact, we
would not affirm, of course, if issues of employee
welfare had been ignored or slighted. This court has
previously pointed out “the Board’s duty to consider the
welfare of carrier employees under the public interest
standard when it approves agreements under Section
412.” But in a finding that the unions do not dispute, the
Board in this case declared [:]
that the employees retain substantial and
effective bargaining power regardless of the
Mutual Aid Agreement. Thus, the record shows
that air carrier wages . . . are higher than, and . . .
have increased faster than, wages in other
industries, including other transportation
industries.
We do not think the Board need have gone farther in this respect.
The airline labor organizations have also been seeking the adoption of
legislation that would outlaw MAP, such as H.R. 1234 on which the
Subcommittee on Aviation of the House Committee on Public Works
and Transportation held hearings in March and April 1976.
Union opposition to MAP does not contend that it has caused a
reduction in the level of union demands or settlements. As Captain John
18
J. O’Donnell, ALPA President, testified on March 9, 1976:
Pact members are prone to assert that the agreement
[MAP] is a legitimate self-help measure intended to
control soaring employment costs. Indeed, it should
surprise no one that the ultimate cost of a settlement is
generally unrelated to the length of a strike. The facts
thoroughly support this conclusion. The CAB hearing on
18
Labor-Management Relations in the Airline Industry
the Pact contains numerous instances in which witnesses
for National and Northwest conceded this point.
Moreover, we have only to study the wage scales
paid by carriers who have repeatedly taken strikes with
those carriers who have negotiated away their
differences in order to see the Pact’s effects. There is no
difference, and wage scales are virtually the same for all
carriers. We must conclude that the Pact is useless and
should be abolished.
What the unions do contend is that the Pact has increased the frequency
of long work stoppages and has caused financial hardship for some of the
major contributing airlines. Unterberger and Koziara recently
concluded:19
To date, at least [1975], airline strike insurance,
which the Mutual Aid Agreement supplies, appears to
have provided escalated costs and benefits and longer
strikes, but little else. It is an illustration of the adverse
consequences of strengthening the weapons of industrial
warfare without any evidence of counterbalancing
benefits.
The industry emphasizes the need for financial support of struck
carriers. As the President of the Air Transport Association of America,
Paul R. Ignatius, testified on April 1, 1976:20
The major point, which unions never challenge, is
that Mutual Aid is vital to preserving the financial
viability of a struck carrier. Airline strikes can be
devastating. And in the uncertain financial circumstances
our industry currently faces, a strike could cripple an
airline or even push it into insolvency. Mutual Aid
protects against that catastrophic risk.
The risk is not remote. The craft and class structure
of the Railway Labor Act fractionalizes an airline labor
force beyond that of industry generally, and each airline,
therefore, faces continual strike threats and rarely has a
period of labor peace. Four or five different crafts have
the power to shut down an airline . . .
Ignatius observed that the airlines have ranked number one among U.S.
industries in both the levels of compensation and the rates of increases
granted to employees since 1967, adding:21
You may wonder how it is that airline wages have
attained such high levels given the unsatisfactory
19
The Railway Labor Act at Fifty
financial condition of the industry today. Certainly, the
bargaining power of the airline unions, and in particular
their ability to shut down an airline’s operations, is a
major cause. But in fairness, I should also say that in
earlier years it was possible for the airlines to absorb
quite substantial increases in wages and benefits
through the introduction of new and more efficient
equipment, and the availability of relatively low cost
fuel. . . The time is gone, however, when airlines can
absorb hefty labor costs through the introduction of new
and more efficient aircraft. That is one reason why the
continued escalation in labor costs has had such a direct
impact on airline profitability.
Legislation to prohibit or modify the Mutual Aid Pact does not appear
likely in the foreseeable future. Northrup, who opposes any
governmental modification of MAP, disagrees with the policy comments
of Unterberger and Koziara and observes:22
As for the claim that the Mutual Aid Pact causes
or lengthens strikes, it has neither been proved nor
demonstrated. Moreover, it is the wrong question to ask.
The real issue is whether the Mutual Aid Pact
contributes to more equitable and stable industrial
relations in the industry. By permitting carriers to resist
what they regard as inequitable union demands, it has
moved in this direction.
Subsequent to the liquidation of the Airlines Negotiating Conference
in 1947, the carriers established the Airlines Personnel Relations
Conference (APRC), not as a negotiating agency but rather as a clearing
house for personnel and labor relations information. In 1971, as an effort
to complement the Mutual Aid Pact by the improvement of carrier
coordination in collective bargaining and to represent individual airlines
during negotiations upon request, APRC was succeeded by the Airline
Industrial Relations Conference (AIRCon). Although AIRCon’s
existence was later approved (with some modifications) by the CAB, and
while it actively promotes the interchange of labor relations information
and ideas among the carriers, it does not appear to have moved the
industry significantly away from single-carrier autonomy in the
formulation and implementation of collective bargaining decisions.
We cannot pause here to provide detailed information on the
substance of airline collective bargaining agreements and to present
comparable data regarding the levels of pay and fringe benefits among
20
Labor-Management Relations in the Airline Industry
airline employees and for other industries. The airline unions will not
dispute that they have achieved substantial gains for their members. In
1974, ALPA’s membership earned an average of $34,159. For the trunk
carriers (including Pan American), Captains, First Officers and Second
Officers averaged, respectively, $47,289, $29,624 and $23,096.23
Company pension contributions and other fringe benefit costs are
roughly 25 percent of pilot payroll. As of the beginning of 1976, top
increment pay for airline Mechanics averaged about $8.00 per hour
(including cost of living allowance and license and line premiums). In
late 1975, Flight Attendants earned, for an 80-hour flight time month,
from an average of about $700 for a new hire to about $1,100 in the tenth
24
year of service. According to the Air Transport Association (ATA), the
percent increase in employee compensation on the airlines exceeded the
percent increase for U.S. industry each year from 1968 through 1973
(when it was 8.0 percent as compared to 6.5 percent).25 Overall, for the
airlines, labor costs represent about forty percent of total operating costs.
It should also be noted, of course, that air transportation demands a wide
variety of employee skills, much training for some positions, and
performance keyed to on-time performance and safety imperatives.
Recent economic developments, primarily those associated with
employment cutbacks and the impact of rising fuel and unit labor costs,
have created a more difficult environment for collective bargaining.
During 1975, one hundred aircraft were grounded and employment was
reduced by almost 10,000. The apparent end of decades of growth,
starting in 1970, has generated new kinds of pressures within the unions.
Among pilots, for example, there is more pressure to reduce the pay
differentials (which are substantial) between junior and senior flight
officers. Now that it takes much longer to progress from Second Officer
to Captain, once tolerable differences in earnings are a source of
complaints from junior pilots, who are now exerting more pressure
within ALPA to moderate this effect of increment pay tied to the speed
and size of the aircraft. Among Flight Attendants, the field has changed
from an almost exclusively female “stewardess” category (except for a
handful of “pursers” on international routes) as of the mid-1960’s, when
seniority averaged only slightly more than two years and stewardesses
were terminated upon marriage, into a career-oriented occupation,
increasingly populated by males, where seniority now averages more
than six years and there is heavy emphasis on bargaining for adequate
pensions at age 60 retirement. Add to such considerations the tight
financial condition of the industry and union rivalries within some crafts
21
The Railway Labor Act at Fifty
and classes, already noted, and it becomes evident that airline collective
bargaining is presently under considerable stress.
Collective Bargaining under the Railway Labor Act
Collective bargaining in any industry is significantly affected by the
economic and technological characteristics of the industry, and the
airlines are surely no exception.. Union-management relations and the
tactics of each party will also be shaped by public policy considerations
as they apply to collective bargaining in general and sometimes to the
particular industry. We have already noted the pervasive economic role
of the CAB and the responsibility of the FAA for the formulation and
implementation of safety regulations. Since the economic and safety
decisions of the CAB and FAA have a significant impact on job security
and conditions of work, it follows that airline managements and unions
pay considerable attention to, and often lobby for (or against), legislation
that will affect the operation of these agencies. They naturally devote
significant resources to participation in the various CAB and FAA
proceedings.
Our primary interest, in this chapter, is to examine the impact of
Railway Labor Act coverage on airline labor relations. Would airline
collective bargaining have evolved much differently had the industry
remained under the 1935 Wagner Act and the 1947 Taft-Hartley Act? In
what significant ways, if at all, does the Railway Labor Act facilitate or
hamper the making of agreements, reduce or increase the frequency of
strikes, encourage or discourage innovative and constructive
developments at the bargaining table, and promote or impede the
expeditious and efficient settlement of grievances under existing
agreements?
We will examine, first, the nature of the mediation process as it
functions on the airlines under the aegis of the National Mediation
Board, Next, the use and effects of the Presidential emergency boards
appointed between 1947 and 1966, and of their non-use since then, will
be appraised. Third, the strike record of the industry will be assessed.
Fourth, some constructive developments will be noted. And fifth, the
influence of the Act on the disposition of grievances will be reviewed.
(1)
Mediation
The Railway Labor Act, in Section 2, First, obligates the carriers and
their employees “to exert every reasonable effort to make and maintain
agreements ... in order to avoid any interruption to commerce ...” Under
Section 5, First, whether mediation is requested or proffered—
22
Labor-Management Relations in the Airline Industry
. . . the said Board [NMB] shall promptly put itself
in communication with the parties to such controversy,
and shall use its best efforts, by mediation, to bring them
to an agreement . . .
It has been clearly established, and verified by the courts, that mediation
under the Railway Labor Act—unlike Taft-Hartley mediation by the
Federal Mediation and Conciliation Service—is mandatory. The parties
are obligated to submit to the mediatory process. Moreover, the NMB is
entitled to keep the parties in mediation until such time as the parties, in
the judgment of the NMB, have genuinely bargained to an impasse. 26 In
Machinists v. National Mediation Board, 425 F 2d 527, 73 LRRM 2278
(1970), the Court observed:
. . . The legislature provided [in the Railway Labor
Act] procedures purposefully drawn out, and the Board’s
process may draw on them even to the point that the
parties deem them “almost interminable.”
What is voluntary about mediation, including mediation
under this Act, is the decision to accept or reject the
result available from the mediation process. What is
involuntary about mediation under this Act is the
obligation to engage in the mediation process even
though a party is not unreasonable from his point of
view in his conviction that further mediation is futile.
The court’s inquiry cannot go beyond an examination of
the objective facts and determination thereon whether
there is a reasonable possibility of conditions and
circumstances (including attitudes and developments),
available to the Board, consistent with the objective
facts, sufficient to justify the Board’s judgment that the
possibility of settlement is strong enough to warrant
continuation of the mediation process . . .
Unlike railroad collective bargaining agreements, airline labor
contracts have a fixed term. Whether because of the complexity of airline
contract provisions, the dynamic character of the industry in term of
economics and technology, and/or the awareness of the parties that
mediation is mandatory, collective bargaining usually commences with
“Section 6” proposals on many, perhaps hundreds, of items. Clearly, the
parties do not normally anticipate that such a rich menu can be digested
within the thirty-day notice period required by Section 6.
It is a judgment of many participants in airline bargaining
negotiations, which I share, that the traditionally large “Christmas tree”
23
The Railway Labor Act at Fifty
of opening proposals in combination with the terminal date of the
expiring agreement would encourage the likelihood of strikes at the
termination date. In any event, the fact that a strike is unlawful until the
NMB has elected to release the parties from mediation serves as an
incentive to the parties, once in mediation, to make effective use of this
phase of the Railway Labor Act’s procedure. There is also a widespread
consensus that the failure of the President to appoint any airline
emergency boards since 1966 has encouraged the productivity of
mediation. Between 1947 and 1966, when the appointment of an
emergency board was virtually automatic if a labor dispute on a major
carrier reached that stage, the parties often focused on preparing for the
board hearing instead of on reaching a settlement in direct negotiations
or in mediation.
One recent example of a protracted period of mediation may be of
interest. The prior United Airlines-ALPA/AFA Flight Attendant
Agreement terminated on October 1, 1974. Negotiations began in July
1974 with more than three hundred issues on the table. Many “small”
ones were settled in direct negotiations prior to mediation, but 167 issues
remained open in mediation until a September 1975 negotiating session
at San Diego, when the number of unresolved items was brought down to
approximately one hundred. Although the Company had placed an offer
above the industry pattern on the table, rank and file pressures on the
union’s negotiators were such that no further progress could then be
made. Nevertheless, the NMB resisted pressures, to “start the clock” by
proffering arbitration because of the large number of issues that were still
active and concern that a settlement within thirty days was not likely to
be possible. The bargaining environment was radically changed in
December 1975, however, as a consequence of United’s 16-day
shutdown by the IAMAW as well as Flight Attendant settlements
(providing new benchmarks) at National, Northwest and Piedmont. The
Company, in the midst of a painfully slow recovery of traffic in January,
now wanted desperately to avoid a proffer of arbitration. United had lost
its strike-free image, and feared that a thirty-day status quo period might
cause another massive loss of traffic by apprehensive customers. It was
in this context that United’s Flight Attendant negotiations were rapidly
consummated, still under mediation, and full agreement reached on
January 30, 1976, on terms more advantageous to the AFA than the
Company had previously been willing to grant. Despite apprehension on
the part of the AFA’s negotiators, the new agreement was ratified by four
to one. Viewed .in retrospect, it seems most probable that a United Flight
Attendants’ strike would have taken place in 1975 had not the NMB
24
Labor-Management Relations in the Airline Industry
refused to release the parties from mediation. The new contract involves
132 amendments to the former one, and has an “amendable date” of
October 1, 1977.
Mediation is, of course, more a diplomatic art than a technical skill,
and the effectiveness of airline mediation is affected by the insight and
guidance of the Board and by the background and talent of the mediator.
The NMB was initially handicapped, in this regard, by its lack of air
transport knowledge. Today, however, half of its mediation staff
possesses airline union and/or management backgrounds, as does one
member of the Board.
Mediation statistics are not of much use in determining the
effectiveness of this process, since it is impossible to know what the
parties would have accomplished in its absence. Direct settlements prior
to any mediation used to be the exception rather than the rule. Recently,
however, about one-half of all disputes are resolved in direct
negotiations. One study notes that 1,465 mediation cases were disposed
of by the NMB from 1936 through 1969, of which 905 occurred in and
after 1955.27 The 1974 Annual Report of the NMB records 69 airline
mediation cases as disposed of in that fiscal year, 63 by mediation
agreements, one by an acceptance of the proffer of arbitration, one by a
joint refusal to arbitrate, and four closed by “Board action.”
Although airline management and union negotiators are often critical
of the timing and duration of mediation efforts in specific cases, I sense a
virtual consensus favoring mandatory mediation as eminently desirable
in the airline context. Indeed, I have no doubt that the NMB serves, on
occasion, as a convenient scapegoat, thus helping a negotiator to keep
restless constituents at bay. Tactically, a good union time to “start the
clock”—like thirty days before a holiday traffic rush—will be a bad time
from the carrier’s perspective, and vice versa; so, it is not surprising to
hear gripes from one party or the other, but rarely from both, about the
delay in or timing of a proffer of arbitration in a specific dispute. On
balance, however, unions and management are glad that mediation is
available, and believe that its quality is better under an agency with
specialized and limited jurisdiction.
Finally, it should be noted that mediation does not end upon the
making of the voluntary arbitration proffer. In fact, after arbitration is
rejected, mediation will resume with greater intensity and usually with a
member of the Board moving in at that critical time in cooperation with
the staff mediator. Without any prospect that an emergency board will be
created, a settlement is likely to take place in this phase. Airline strikes
25
The Railway Labor Act at Fifty
are not frequent, relative to the number of agreements being negotiated
and amended.
(2)
Emergency Boards
The device of the emergency board—a procedure for “fact-finding”
with public recommendations—was adopted in the Railway Labor Act as
a means of assisting in the settlement of railroad disputes which
“threaten substantially to interrupt interstate commerce to a degree such
as to deprive a section of the country of essential transportation service”
(Section 10). Under such circumstances, it was anticipated that a
concerned public, aware of the board’s recommendations and findings,
would contribute to the pressure on the parties to devise a settlement. No
single-carrier airline strike satisfies the Section 10 criterion, with the
possible exception of some regional route systems. Nevertheless, prior to
1967, a strike scheduled for the end of the thirty-day status quo was
virtually certain to evoke the creation of an emergency board. Thirtythree boards were appointed between 1947 and 1966, inclusive, for
airline labor disputes.
Cimini has developed a comprehensive statistical analysis of the data
relating to these thirty-three airline boards. Six of these disputes were
settled by the parties prior to any formal board recommendations. In only
two of the remaining 27 cases, however, were the board’s
recommendations accepted by both parties. Cimini comments: 28
Thus, the pressure of public opinion was not
adequate to force the parties to accept a [presidential
emergency] board’s recommendations, nor was
voluntary compliance common. ... To explain this
tendency, the Board [NMB] argued that the complicated
and technical issues precipitating these disputes were
given little publicity and that they were somewhat
incomprehensible to the public.
Eight of the 27 post-board settlements were preceded by work stoppages.
Donald Cullen (in Chapter VI) has analyzed the PEB experience in
relation to the airlines as well as the railroads, and the reader is referred
there for more information on this topic.
Emergency boards are appointed by the President “in his discretion.”
Cullen attributes to George P. Schultz, as Secretary of Labor in 1969,
primary credit for a decision that single-carrier work stoppages should no
longer serve as a sufficient justification for an emergency board. No such
policy has ever been formally announced or published, but it is a fact that
no airline emergency board has been appointed since 1966.
26
Labor-Management Relations in the Airline Industry
My discussions with airline management and union officials confirm
that this policy has their strong endorsement. There is a consensus that
the anticipation of a PEB weakened the ability of the parties to settle
their differences in direct negotiations or under mediation, and certainly
reinforced any predisposition to reject voluntary arbitration. As noted
above, the parties tended, from the outset, to prepare for their PEB
hearings. In some cases, it appears that unions counted upon PEB
recommendations as a floor beyond which, in subsequent negotiations,
additional gains could be obtained. In any event, the unions were more
likely than the managements to reject PEB recommendations.
Some airline managers remain favorable to the adoption of
legislation that would establish compulsory arbitration as a means of
settling interest disputes, such as the Dominick bill (S.2060) introduced
June 14, 1971, 92d Congress, 1st Session. This bill would have amended
Section 10 of the Railway Labor Act so as to eliminate Presidential
emergency boards; provided for the appointment, by the Secretaries of
Labor, Commerce and Transportation, of a special three-member panel
that would recommend one of four alternatives: (a) do nothing, (b) a
board to make non-binding recommendations, (c) compulsory
arbitration, or (d) final offer selection arbitration; and, finally, selection
by the three Secretaries of one of these options. The main justification
offered by these members of management for favoring such legislation is
their concern about the continuing high levels of bargaining settlements,
and their belief that impartial determinations would impose less costly
solutions. Even these individuals agree, however, that emergency boards
as such serve no useful purpose in airline collective bargaining. Airline
unions are, of course, firmly opposed to compulsory arbitration.
(3)
Strikes
Work stoppages are an inevitable accompaniment to the collective
bargaining process. Ideally, they should occur only rarely and be brief.
The airlines’ potential strike exposure is considerable, given the number
of bargaining units at each carrier that are capable of an effective strike.
Of nineteen strikes at scheduled carriers since the beginning of 1970, six
lasted four days or less; one endured for six days; and the December
1975 IAMAW strike at United continued for 16 days. The remaining
eleven strikes were long and, of course, exceedingly costly to all of the
employees affected, to the carriers, and to the public deprived of service:
Scheduled Airline Strikes, 1970-1975
(excluding strikes of less than 17 days)
27
The Railway Labor Act at Fifty
Carrier
National
Northwest
Mohawk
Hughes
Airwest
Northwest
Ozark
Began
1/31/70
7/8/70
11/12/70
12/15/71
Ended
4/24/70
12/14/70
4/14/71
4/10/72
Duration
(days)
187
160
154
118
6/30/72
4/19/73
10/2/72
6/30/73
95
73
TWA
11/5/73
12/18/73
44
National
7/14/74
10/30/74
110
Texas Int.
12/1/74
4/4/75
125
National
9/1/75
1/5/76
127
11/14/75
3/2/76
109
Airlift
Union (unit)
ALEA (Clerks)
BRAC (Clerks)
ALPA (Pilots)
AMFA
(Mechanics)
ALPA (Pilots)
AMFA
(Mechanics)
TWU/ALSSA (Ft.
Attendants)
IAM (Mechanics
& Rel.)
ALEA (Clerks and
Stn. Agents)
ALPA/AFA (Ft.
Attendants)
ALPA (Pilots)
SOURCES: AIRCon, ALPA and NMB.
One glance at the above list indicates that no one union could claim
major “credit” for these long stoppages: seven different labor
organizations were involved. Two were called by one union, AMFA,
which has bargaining rights only at Ozark and Hughes Air West (but is
seeking members elsewhere). No other union was involved in more than
two of these single-carrier strikes. Two carriers were heavily hit:
National by three stoppages (each by a different unit) for a total of 424
days; and Northwest by two stoppages (by different units) for a total of
255 days. Each of the other carriers suffering a long strike did so only
once in this period.
Some observers have suggested that MAP is a cause of more long
strikes, and this is certainly a plausible thesis. But long strikes were not
unknown prior to MAP (National was shut down for ten months in 1948
by two over-lapping strikes), and the sharp change in the airlines’
economic environment starting in 1970, the continuing inflation, and
internal union factors suggested earlier, could account for some
prolonged stoppages even in MAP’s absence.
It is probably fortunate for the long-run effectiveness of airline
collective bargaining that public policy permits single-carrier strikes to
28
Labor-Management Relations in the Airline Industry
take place. Once long strikes do occur, it is clear that MAP payments
constitute vital economic underpinning for the struck carrier even though
there is no substantial evidence of which this writer is aware that the
existence of MAP has significantly changed bargaining positions or the
level of settlements.
(4)
Some Recent Developments
There is certainly nothing in the Railway Labor Act and in its
application to the airlines that precludes the possibilities of innovation in
collective bargaining attitudes and procedures. In recent years there have
been indications, for example, of a greater concern on the part of some
unions for the health of the carriers with which they deal. In this
connection, ALPA agreed to shelve 1975 pilot pay increases at both Pan
American and Eastern because of the financial stresses at these carriers.
At American in 1975, the independent Allied Pilots Association, after
five days of negotiations, agreed on January 14, 1975, to the terms of a
new contract terminating on April 1, 1977, although the prior contract
was not to expire until April 1, 1975. TWU negotiated six agreements
with American that were to expire on September 1, 1975, and settled on
new terms the preceding May. Five of these were promptly ratified. Of
considerable significance at strike-prone National is a Letter of
Agreement with ALEA dated February 19, 1976, under which the parties
agree to “open” on no more than ten issues prior to the expiration of their
current agreement in 1977; to arbitrate all unresolved economic issues
according to a tight timetable; and to forego any work stoppage arising
out of non-economic issues. This commitment to arbitrate remains in
effect until after it is actually used the first time. National hopes that the
other unions with which it negotiates will be amenable to similar
arrangements.
On July 7, 1976, Braniff and ALPA executed an agreement that
ensures the peaceful settlement of their current negotiations:29
According to the agreed-on timetable, if Braniff and
the pilots don’t reach agreement on a new package by
July 30, [1976,] “conferences” on the unresolved issues
between the two will continue until August 13. At that
point, the National Mediation Board will mediate any
dispute for up to 30 days, but not past October 1.
If by then the two sides still haven’t reached
agreement, a Braniff spokesman said, they will choose a
mutually acceptable arbitrator from a list of five
proposed by the National Mediation Board. Arbitration
29
The Railway Labor Act at Fifty
will begin by October 15, and the arbitrator will issue a
“final and binding decision” by November 29. Although
this commitment does not contain the “good until
actually used” feature of the National-ALEA agreement,
it is the first example of such a no-strike arrangement
involving pilots. Perhaps the near-term future will
witness the further development and extension of
voluntary strike-avoidance arrangements. The National
Mediation Board is actively encouraging such measures.
(5)
Grievance Settlement
The inability of the drafters of Title II to anticipate the growth and
complexity of airline collective bargaining is evident in Section 205,
which authorizes the NMB to create a “National Air Transport
Adjustment Board” for the settlement of disputes arising under existing
agreements. This “NATAB” was to be composed of two members
selected by the air carriers and two members by the labor organizations
“national in scope,” utilizing neutral referees and generally functioning
in a manner similar to the National Railroad Adjustment Board (see
Chapter 4). Fortunately, the NMB has never implemented Section 205.
Accordingly, the airlines and the unions have evolved their own
grievance procedures on a system basis for the interpretation and
application of their own system-wide agreements.
The railroad precedent and the language of the Act did have a
significant impact, however, on airline grievance arbitration machinery.
Thus, the first labor contract in the industry, between American and
ALPA, as executed on May 15, 1939, included this provision:
(b) In compliance with Section 204, Title II, of the
Railway Labor Act, there is hereby established a system
board of adjustment for the purpose of adjusting and
deciding disputes which may arise under the terms of the
Pilots Agreement and which are properly submitted to it,
which board shall be known as “American Airlines
Pilots System Board of Adjustment”. . . .
Each party was to name two members to this Board, but there was no
provision for breaking a deadlock. This omission was corrected by
ALPA the following year in its first contract with United, which called
for a panel of five potential “referees” from which a fifth and neutral
System Board member would be chosen if needed to break a deadlock.
Every airline labor agreement subsequently negotiated has provided for a
System Board of Adjustment, along with a procedure (often,
30
Labor-Management Relations in the Airline Industry
appointment by the NMB) for obtaining a neutral member when
required. Most System Boards are still composed of two members named
by each party. In some instances, the parties operate with a tripartite
Board composed of one member named by each party plus a neutral. In
rare instances, the parties are electing to discard the System Board in
favor of a single neutral arbitrator, but this is done (so far as I am aware)
only on a case-by-case basis and by mutual agreement.
Although arbitration by tripartite boards has not been unknown in
other industries, especially under long established bargaining
arrangements (e.g., brewing and printing), most arbitration procedures
today call for the use of single neutrals. I have commented elsewhere on
the merits of the tripartite approach, if sensibly applied by System
Boards to which competent members have been appointed:30
A tripartite arbitration board has advantages,
especially in an industry with a host of unique practices,
problems and nomenclature, and in which some
grievances present issues that are complex in content and
far-reaching in their implications. (Let me hastily note
my awareness that arbitrators should be concerned about
contractual obligations and rights and not with the
consequences for the parties, but there are occasions
when the nature of the consequences bears upon the
reasonableness of a given contract interpretation.) A
referee’s colleagues on the board often help to clarify the
facts and issues. Moreover, the partisan members can
serve as an avenue of communication and education for
their respective parties that will contribute to their
understanding of the process and its results. It is also
true that the five-man board and its procedures constitute
a relatively elaborate, expensive and slow process for the
arbitration of grievances. On large carriers, where
increasing numbers of grievances are referred to a single
board, bottlenecks have developed at the board level.
The advantages of a system board have to be balanced
against the cost and the time involved.
On balance, I would suggest that the Railway Labor Act’s impetus for
the use of System Boards for airline grievance arbitration has been
wholesome. Since the Act does not bar the use of single neutrals by
mutual agreement, it seems that most carriers and unions find the
arrangement desirable and worth continuing.
31
The Railway Labor Act at Fifty
Findings and Conclusions
The basic characteristics of collective bargaining in the airline
industry have been shaped by its economic and technological
characteristics and by the public economic and safety regulation to which
it has been subjected. The key issues confronted by the parties at the
bargaining table would have emerged under any kind of labor relations
legislation that ensured protection of the right of employees to organize.
In regard to the making and revising of agreements, the evidence
supports a finding that mandatory mediation, after direct negotiations
have failed to produce agreement, has been a constructive and effective
procedure. Its usefulness has been enhanced by the implicit policy
decision that emergency boards should not be created for single-carrier
work stoppages. Consequently, a prior tendency to prepare for an
emergency board instead of reaching a settlement directly or in
mediation has been corrected since 1966, when the last airline
emergency board issued its recommendations. The authority of the NMB
to keep the parties in mediation until effective bargaining has taken
place, which provides time for the resolution of often complex issues and
which precludes strikes immediately at the expiration of term
agreements, has probably effected a significant reduction in the number
of airline strikes.
The structure of employee representation under the Railway Labor
Act has been treated in Chapter II by Dana Eischen. To the extent that
the “craft or class” requirement has fostered greater fragmentation of
airline unionism, it has contributed to more opportunities for dissension
and strikes. Fortunately, at least among ground employees (as at
American with TWU and at United with IAMAW) there is a tendency
for related bargaining units to elect the same union and for multi-unit
bargaining to evolve. On the other hand, it is my view that the “systemwide” requirement under the Railway Labor Act for any bargaining unit
contributes to stability and to more efficient employee representation.
Finally, the encouragement of System Boards for the resolution of
grievances has been wholesome.
It is pertinent to note that airline managements and unions do not
seek removal from the jurisdiction of the Railway Labor Act in spite of
specific criticisms. A recent published suggestion that the Railway Labor
Act is “ripe for oblivion”31 was criticized by both union and management
spokesmen. The president of ALEA responded: 32
RLA’s National Mediation Board is a steadying
influence in labor relations, and it gives valuable
assistance when problems arise. It should also be noted
32
Labor-Management Relations in the Airline Industry
that NMB is presently introducing what can be described
as “preventive medicine” which is intended to help both
sides resolve differences before they become strike
issues. Neither the Board nor the Act, itself, is perfect.
But they both do a creditable job in an area where there
are no absolute ways to settle man-made problems.
One airline’s Vice President for Personnel Relations wrote that to place
the railroads and airlines under Taft-Hartley would probably lead to an
increase in strikes for “at least two basic reasons”: the RLA’s “judicially
enforceable processes” for the peaceful adjudication of grievances, and
because of mandatory mediation:33
. . . The Railway Labor Act therefore does delay
deadlines by removing them from the complete control
of contract dates and bargaining adversaries. In weighing
the competing interests between early deadlines and
more strikes on the one hand and mediation delays and
fewer strikes on the other, the Railway Labor Act tilts to
the latter.
No labor law can ensure peaceful and constructive labor relations.
Although specific amendments to the Railway Labor Act may be
desirable—notably, in connection with representation questions—we
should be careful about casting into oblivion a law that both parties,
on balance, seemingly want to retain.
__________
* Professor of Economics, Wayne State University
1. For airline traffic data from 1926 through 1938, see Civil Aeronautics
Administration, Statistical Handbook of Civil Aviation (1948).
a
1975 employment underreported because of strikes.
SOURCE: Air Transport Association of America, Facts & Figures, 1976 and earlier
issues.
2. The most convenient reliable source of traffic and financial data for scheduled U.S.
air transportation is: Air Transport Association of America, Facts & Figures,
published annually. Data for 1966 through 1975 appear in the 1976 edition.
3. This section is drawn from the more extensive presentation in Mark L. Kahn,
“Collective Bargaining on the Airline Flight Deck,” Part IV of Harold M. Levinson
et al., Collective Bargaining and Technological Change in American Transportation
(Evanston: The Transportation Center at Northwestern University 1971), pp. 428436. This source will be cited herein as Kahn (1971).
4. Ibid., pp. 461-471.
5. Primarily barnstorming by “gypsy pilots” who sold rides and flying lessons, stuntflying and exhibitions at fairs, and fixed-base operations that offered lessons and
charter services. See George E. Hopkins, The Airline Pilots: A Study in Elite
Unionization (Cambridge: Harvard University Press, 1971), p. 10 and Chapter 3,
“The Impact of the Depression.”
33
The Railway Labor Act at Fifty
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
34
U.S. Congress, House Committee on Interstate and Foreign Commerce, “Air Pilots,”
Hearings on H.R. 11867, May 12-13, 1932 (72nd Cong. 1st Sess.), p. 45.
U.S. Statutes at Large, Vol. 49, Public No. 270, 1935-36.
Kahn (1971), pp. 436-441. Data through 1975 from Air Transport Association of
America, Facts and Figures, 1976 Edition.
Kahn (1971), pp. 441-451, includes a more detailed examination of the factors
encouraging technological change and a summary of its consequences.
Ralph Blumenthal, “Airlines Find Skies Brighter but Still Cloudy,” The New York
Times, April 30, 1976, pp. Dl, D3. Data from Air Transport Association of America.
Space limitations do not permit a reexamination here of the complex and often bitter
conflict for jurisdiction over the “third seat” between the Flight Engineers
International Association (FEIA) and ALPA. For one treatment, see Kahn (1971),
pp. 519-528. For a more detailed inquiry, see John M. Bait sell, Airline Industrial
Relations (Boston: Harvard University, 1966), Ch. 8.
Ralph Blumenthal, “United Airlines Resumes Parleys Friday with Striking
Machinists,” The New York Times, December 17, 1975.
U.S. National Mediation Board, Fortieth Annual Report for the Fiscal Year Ended
June 30, 1974, p. 83: Table 10a.—“Employee representation on selected air carriers
as of June 30, 1974.”
The National Mediation Board has never directed the establishment of a multiemployer bargaining unit.
Air Line Pilots Association, “The State of the Association,” President’s Report
prepared for the Sixteenth Annual Meeting of the Association beginning November
14, 1960, p. 12.
Kahn (1971), p. 603.
For a well-documented history of the Pact and its various modifications see S.
Herbert Unterberger and Edward C. Koziara, “Airline Strike Insurance: A Study in
Escalation,” Industrial and Labor Relations Review, Vol. 29, No. 1 (October 1975),
pp. 26-45.
Prepared statement of John J. O’Donnell, President, Air Line Pilots Association,
International, before the Subcommittee on Aviation, Committee on Public Works
and Transportation, U.S. House of Representatives, Concerning Mutual Aid Pact
(mimeo.), p. 9.
Unterberger and Koziara, op. cil., p. 45.
Prepared statement of Paul R. Ignatius, President, Air Transport Association of
America, before the Subcommittee on Aviation, House Committee on Public Works
and Transportation, on H.R. 1234—April 1, 1976, p. 3.
Ibid., p. 12.
Herbert R. Northrup, “The Airlines’ Mutual Aid Pact—The Rest of the Story,”
Industrial and Labor Relations Review (forthcoming).
Air Line Pilots Association, Research Department Report, “Age-Wage Analysis,
ALPA Pilot Membership 1974” (Washington, D.C.: September 1975), Introduction.
Mechanics’ and Flight Attendants’ pay level estimated from recent collective
bargaining agreements.
Ignatius, op. cit., Table 6, Appendix A.
Krislov characterizes mediation under the Railway Labor Act as “quasi-judicial”:
The NMB’s control of a proffer of arbitration is a prerequisite to self-help under the
RLA. Because this control has such a profound effect upon bargaining, mediation
under the RLA should be sharply distinguished from “voluntary” mediation. It
should also be sharply distinguished from “mandatory” or “compulsory” mediation,
Labor-Management Relations in the Airline Industry
27.
28.
29.
30.
31.
32.
33.
which implies merely that the parties have an obligation to attend. For want of a
better term, the author has proposed “quasi-judicial mediation”. Joseph Krislov,
“Mediation under the Railway Labor Act: A Process in Search of a Name,” Labor
Law Journal, Vol. 27, No. 5 (May 1976), p. 314.
Michael H. Cimini, Airline Experience under the Railway Labor Act, Bulletin 1683,
U.S. Department of Labor, Bureau of Labor Statistics (Washington, D.C.: 1971), p.
16.
Ibid., p. 24.
“Braniff, Pilots Find Way to Skirt Strike Even Without New Contract by July 30,”
The Wall Street Journal, Friday, July 2, 1976, p. 4.
Mark L. Kahn, “Airline Grievance Procedures: Some Observations and Questions,”
Journal of Air Law and Commerce, Vol. 35 (Summer 1969), p. 319.
John Hoerr and Stephen H. Wildstrom, “Ripe for oblivion: The Railway Labor Act,”
Business Week, December 27, 1975, p. 27.
Victor J. Herbert, President, Air Line Employees Association, Letter to the Editor of
Business Week dated January 8, 1976. Reprinted in The Air Line Employee
(Chicago, ALEA), January/February 1976, p. 11.
Charles I. Hopkins, Jr., Vice President, Personnel Relations, The Flying Tiger Line,
Inc., Letter to the Editor-in-Chief, Business Week, dated December 26, 1975. (Not
published by Business Week.)
35
Voluntary Arbitration of Interest Disputes
CHAPTER V
VOLUNTARY ARBITRATION OF RAILROAD AND AIRLINE
INTEREST DISPUTES
Benjamin Aaron*
I. Introduction
The Railway Labor Act (RLA), as amended, provides for three
principal methods in addition to mediation for settling labor disputes:
compulsory arbitration, voluntary arbitration, and fact-finding with
recommendations. Disputes involving the interpretation or application of
existing collective bargaining agreements and “time claims” are subject
to compulsory arbitration by the National Railroad Adjustment Board
(NRAB), by regional or system boards of adjustment, or by special
boards of adjustment. Disputes in this category are commonly referred to
in the railroad industry as “minor” disputes; as to them, resort to the
strike is forbidden. The grievance machinery in the airline and railroad
industries is described by Mark Kahn and Jacob Seiden-berg in Chapters
IV and VIII, respectively.
Disputes over new or changed rates of pay, rules, or working
conditions (“interests” disputes) are commonly referred to in the railroad
and airline industries as “major” disputes. These come under the
jurisdiction of the National Mediation Board (NMB) and are not subject
to compulsory arbitration. In such disputes, if the parties reach an
impasse in their negotiations, the NMB seeks to mediate a settlement. If
it fails in this effort, the Board then seeks to induce both parties to submit
their controversy to arbitration; but either of the disputants has the right
to refuse the proffer of arbitration. If arbitration is rejected, the dispute
can be resolved in one of two ways: by agreement of the parties after
further negotiations, or through the emergency board procedures set forth
in Section 10 of the RLA. The history of the emergency board
procedures is described by Donald Cullen in Chapter VI.
In approximately 350 major disputes arising between 1935 and 1975,
however, the parties did agree initially to submit the issues to
arbitration.1 This chapter is based on an analysis of those cases.
1
The Railway Labor Act of Fifty
II. Background
Sections 7, 8, and 9 of the RLA deal with the arbitration of major
disputes. All were part of the Railway Labor Act of 1926. Section 7
provides that when such a dispute arises and is not settled through direct
negotiations between the parties, or by an adjustment board, or through
mediation, it may be submitted to arbitration by a tripartite board. The
section expressly provides, however, that the failure of either party to
consent to arbitration shall not be construed as a violation of any legal
obligation. Further, the arbitration award must be signed by a majority of
the arbitrators, and a certified copy of the award, together with the record
of the entire proceedings before the board, must be filed with the
appropriate Federal district court; a certified copy of the award must also
be filed with the Interstate Commerce Commission (ICC). A proviso to
Section 7, Third(f) declares that “such award shall not be construed to
diminish or extinguish any of the powers or duties of the . . .
Commission, under the Interstate Commerce Act, as amended.”
The proviso represents a compromise between those members of
Congress who wanted to give the ICC power to review and, if necessary,
modify voluntary wage settlements or arbitration wage awards in
connection with its consideration of proposed carrier rate increases, and
those who opposed granting such power to the ICC. Theoretically, at
least, the proviso permits the ICC to determine rail passenger and freight
rates without regard to wage settlements or wage arbitration awards; but
it has no power to alter the terms of such settlements or awards.
Section 82 of the RLA details the items that must be incorporated in
an agreement to arbitrate. Section 8(1) requires that the award, when
properly filed, “shall be final and conclusive upon the parties as to the
facts determined by said award and as to the merits of the controversy
decided.” Section 8(m) requires that “any difference arising as to the
meaning, or the application of the provisions, of an award made by a
board of arbitration shall be referred back for a ruling to the same board,
or, by agreement, to a subcommittee of such board,” whose ruling in
either case, when properly filed, has the same force and effect as is
granted to the original award.
Section 9 of the RLA deals with the impeachment of arbitration
awards. Petitions to impeach must be filed within 10 days from the filing
of the award in the appropriate Federal district court. Three general
grounds for impeachment are specified in Section 9, Third:
(a) That the award plainly does not conform to the:
substantive requirements laid down by this Act for such
2
Voluntary Arbitration of Interest Disputes
awards, or that the proceedings were not substantially
in conformity with this Act;
(b) That the award does not conform, nor confine
itself, to the stipulations of the agreement to arbitrate; or
(c) That a member of the board of arbitration
rendering the award was guilty of fraud or corruption; or
that a party to the arbitration practiced fraud or
corruption which fraud or corruption affected the result
of the arbitration: ...
Subsection (c) includes two provisos: that no award shall be declared
invalid for uncertainty, the proper remedy in such a case being to submit
the matter to the reconvened arbitration board; and that contested awards
should be construed liberally by the court, with a view to favoring their
legality.
Following a decision by the district court, either party has 10 days in
which to appeal from that decision to the circuit court of appeals, whose
decision is final, subject, of course, to the discretionary power of the
Supreme Court to review the case on a writ of certiorari.
No changes in Sections 7, 8, and 9 of the 1926 Act were proposed at
the time Congress adopted the 1934 amendments, and no changes in
those sections have been proposed or made since then.
III. Analysis of the Cases
A. Extent of Participation
The extent to which carriers and labor organizations have
participated in the voluntary arbitration of major disputes is rather
impressive. In the period 1935-75, some 152 railroad and terminal
companies and 26 airlines participated in at least one case. One airline,
Pan American World Airways (PAA) was involved in 30 cases, and the
Eastern, Western, and Southeastern Carriers’ Conference Committees
(EWSCCC) were parties to 12 cases. On the union side, some 60
organizations representing railroad and airline employees were parties to
arbitrations of major disputes, and most of them participated on more
than a few occasions. The United Transportation Union (UTU), a
relatively new organization, has been involved in 19 such cases, the
International Association of Machinists and Aerospace Workers (IAM),
and the Brotherhood of Locomotive Engineers (BLE), 21 each; the
Brotherhood of Railway, Airline, and Steamship Clerks (BRAC), 48; the
Brotherhood of Locomotive Firemen & Enginemen (BLFE), 22; the
3
The Railway Labor Act of Fifty
Brotherhood of Railroad Trainmen (BRT), 43; and the Transport
Workers Union of America (TWU), 18.
On the other hand, a considerable number of both carriers and labor
organizations voluntarily agreed to arbitrate major disputes less than five
times. It is difficult, however, to draw any positive inferences from that
fact. One possibility is that these organizations were dissatisfied with the
procedure and abandoned it as an acceptable alternative to emergency
procedures under Section 10 of the Act; but it is equally possible that
most if not all of the major disputes involving these parties were settled
through negotiations, with or without the aid of mediation. If that is
indeed true, it suggests that an occasional willingness to arbitrate some
disputes does not imply an abandonment of normal collective bargaining
procedures.
In any event, it is remarkable that virtually every major carrier and
labor organization in the railroad and airline industries has participated in
the voluntary arbitration of a major dispute at least once.
B. The Frequency Trend
No reliable reqords of the voluntary arbitration of major disputes
exist for the period 1926 to 1935. Subsequent to the latter date, after a
relatively slow beginning in the period 1935-39, when only eight
agreements to arbitrate were executed, the parties resorted to this form of
settlement with increasing frequency for the next 10 years. In the period
1940-44, there were 35 agreements to arbitrate, and in the period 194549, the figure jumped to 82 agreements. Between 1950 and 1954, the
number dropped to 60; and for the next 15 years it declined steadily: 44
agreements in the period 1955-59, 31 in the period 1960-64, and only 12
in the period 1965-69. Between 1970 and 1975, the figure again rose to
45.
The foregoing data are misleading, however, because they do not
take into account general agreements to arbitrate all or some major
disputes over particular issues that might arise in the future. For example,
on 3 May 1971, the BLE entered into an agreement with over 65 railroad
and terminal companies represented by the National Railway Labor
Conference (NRLC) and the EWSCCC to arbitrate future interests
disputes over switching limits and interdivisional runs. These issues are
of considerable complexity and had impeded negotiations for many
years. The agreement was the result of almost 20 years of effort to find a
mutually acceptable method for resolving these disputes. The principal
provisions of the arbitration agreement (Articles II and VIII) are as
follows:
4
Voluntary Arbitration of Interest Disputes
(1) When an individual carrier, not presently having the right to
change existing switching limits where yard crews are employed, desires
to make such a change, it must give written notice of its intention to the
union’s general chairman, and must specify the nature of the proposed
changes and new conditions. The carrier’s representative and the general
chairman then have 30 days to negotiate an understanding.
(2) If they cannot agree, the dispute must be submitted to arbitration,
as provided for in the RLA, within 60 days from the date of their last
conference. The arbitration board’s decision must be rendered within 30
days from the date the board was created, unless the parties agree to an
extension. The board’s award is, of course, final and binding, and
becomes effective upon seven days’ notice by the carrier.
(3) When an individual carrier, not presently having the right to
establish interdivisional, interseniority district, intradivisional, or intraseniority district service, if freight or passenger service, desires to
establish such service, it must give at least 30 days’ written notice to the
union’s general chairman, specifying the service it proposes to establish
and the conditions, if any, which it proposes shall govern the
establishment of such service.
(4) The parties are then to negotiate in good faith on the carrier’s
proposal “and shall recognize each others’ fundamental rights, and
reasonable and fair arrangements shall be made in the interest of both
parties” in respect of a number of specified details; but nothing precludes
the parties from negotiating on other terms and conditions of work.
(5) If no agreement is reached, the issues must be submitted to
arbitration under the RLA within 60 days from the date of the carrier’s
notice of intent to establish services. Although the arbitration award is
final and binding, it does not have the effect of establishing the disputed
service in the particular territory involved; it simply determines the
conditions to be met by the carrier if and when such service is
established. If the carrier elects not to put the award into effect, it is
deemed to have waived the right to submit the same request for a period
of one year from the date of the award, except with the consent of
“employees party to said arbitration.” The arbitration board’s award must
include certain specified provisions protecting employees adversely
affected by the discontinuance of any existing runs or the establishment
of new runs resulting from the application of the new rule.
On 27 January 1972, an arbitration agreement covering the same
issues was also entered into by the UTU and approximately 140 railroad
and terminal companies represented by the NRLC. The principal
provisions (Articles VI and XII) are as follows:
5
The Railway Labor Act of Fifty
(1) In respect of switching limits, the provisions are substantially the
same as those in the BLE agreement.
(2) In respect of interdivisional service, the carrier must furnish the
union with a letter of intent setting forth the particulars of the service to
be established, but only two such letters are permitted to be pending
concurrently, and each letter may involve no more than three separate
proposed operations.
(3) Within ten days from the date of the letter of intent, the parties
are to meet and to establish a “Task Force,” which will be responsible for
discussing the proposed new runs and for reaching an agreement, if
possible.
(4) If no agreement has been reached within 30 days after the date of
the letter of intent, the proposed runs will be operated on a trial basis for
60 days. At the end of that time, the parties will “hold conferences for the
purpose of negotiating an agreement to cover the operation of the
interdivisional assignments.”
(5) If no agreement has been reached within 30 days following the
commencement of such negotiation, the matter is to be submitted to the
ranking labor relations officer of the carrier and to the vice president of
the union “for disposition.” If not disposed of by them, the matter must
then be submitted to final and binding arbitration under the RLA. The
board’s decision must be made within 180 days after the date of the
carrier’s letter of intent, or 60 days after submission to arbitration.
Cases arising under the foregoing arbitration agreements and actually
submitted to arbitration are included in our sample; but what we do not
know is how many major disputes involving switching limits and
interdivisional runs may have been settled in earlier stages of the
procedures established by those agreements.
Somewhat broader agreements to arbitrate future major disputes
have been entered into in the airlines industry. The principal carrier
involved is PAA, which made such an agreement with the Flight
Engineers International Association (FEIA) on 9 September 1965. The
preamble of that agreement reads as follows:
WHEREAS, Pan Am and the Association believe
that without weakening collective bargaining, their
differences involving proposed changes in rates of pay,
rules and working conditions can and should be resolved
... by their voluntary referral to the arbitration process
rather than by economic warfare.
The principal provisions (paragraphs 1 and 2) are as follows:
6
Voluntary Arbitration of Interest Disputes
(1) If either PAA, FEIA, or both, serve notice of intended change in
rates of pay, rules, or working conditions in accordance with Section 6 of
the RLA3 and the provisions of the current collective bargaining
agreement, a date for commencement of negotiations must be agreed
upon within ten days of receipt of such notice or notices, and that
commencement date must be within 30 days following such receipt.
(2) Negotiations are to continue for 60 days from the date of the first
meeting, unless agreement is reached earlier, or unless the parties
mutually agree in writing upon an extension of the negotiation period. If
neither of those events occurs, the dispute will be submitted jointly or
separately by the parties to the NMB for mediation.
(3) If the NMB fails in its mediation efforts and proffers arbitration,
the parties “will proceed to the final and binding arbitration of all
unresolved issues involving rates of pay, rules or working conditions” in
accordance with the provisions and procedures of the RLA.
(4) PAA and FEIA are committed, respectively, not to lock out any
employees represented by FEIA, or to cause or to call a strike, concerted
refusal to report for work or to accept duty assignments, or concerted
work stoppage or slowdown against PAA while the agreement is in
effect.
Similar agreements were entered into by PAA with the BRAG, and
with the United Plant Guards of America (UPGA), in 1964; and with the
Air Line Dispatchers Association (ALDA), in 1965. The BRAG and
ALDA agreements are no longer in existence, however, because the
unions involved do not presently represent the bargaining units affected.
The most recent agreement in the airline industry to arbitrate future
major disputes is that between National Airlines, Inc. (NAL), the Air
Line Employees Association, International (ALEA), and the NMB. This
agreement, dated 19 February 1976, has several interesting features.
First, it provides different procedures for economic and non-economic
issues, although the strike and the lockout are foresworn by the parties in
respect of both types of issues. Second, the number of issues that each
party may open for negotiations is limited to ten. Third, the NMB is
committed to a time sequence for mediation and for release from
mediation through a proffer of arbitration, which both sides are pledged
to accept. Finally, the agreement provides that once the arbitration
procedure established therein is used, the obligation to arbitrate no longer
exists unless the parties renew it by mutual agreement.
What all of the foregoing arbitration agreements share in common is
the effort to structure collective bargaining in such a way as to avoid the
necessity of arbitration if at all possible. The preliminary arrangements
7
The Railway Labor Act of Fifty
for notice, discussion, negotiation, and mediation are anything but
perfunctory. The time limits imposed for each step are realistic; they
provide adequate periods in which to reach settlements without dragging
out the procedures unduly. All four agreements presumably imply the
renunciation of the rights of strike and lockout over matters subject to
arbitration, which would otherwise be available to them after all
emergency procedures under the RLA were exhausted, unless Congress
intervened, but the PAA-FEIA agreement is the only one which includes
a specific no-strike, no-lockout clause.
Of the four, that between NAL and ALE A is the most innovative
and interesting. It is the only one, for example, “approved and
acknowledged” by the NMB, and which commits the Board to relinquish
its control over the dispute by proffering arbitration if no settlement has
been effected by mediation by a certain time. Moreover, by its terms, it
forces the parties to decide whether or not to reaffirm the commitment to
arbitrate major disputes every time that method is actually used.
C. Distribution of Cases Between Railroads and Airlines
About 100 of the voluntary agreements to arbitrate major disputes in
the individual cases comprising our sample were entered into by parties
in the airline industry. Of these, almost twice as many (65) were
executed in the years 1935-54 as in the years 1955-75. In the railroad
industry, the distribution of cases over the entire period 1935-75 was
more even; arbitration agreements in only slightly more than half (113)
of the individual cases in the sample were executed in .the years 193554.
D. Issues Arbitrated
The issues submitted to voluntary arbitration have covered a broad
range of subjects, including, among others, wages, hours, fringe benefits,
union security, switching limits, and interdivisional runs. Some of these
issues concerned practices peculiar to the industries involved, and were
of considerable complexity. Consequently, many of the awards are long
and technical, and can be fully understood only by persons with an
intimate knowledge of the practices and procedures in the two industries,
especially the railroad industry.
An almost infinite variety of issues were submitted to arbitration.
(See Table I below.) Not surprisingly, issues dealing with pay, including
general wage increases, cost of living adjustments, rates for particular
jobs, changes in wage rate structures, and effective dates of wage
changes, predominated in both the railroad and airline industries.
8
Voluntary Arbitration of Interest Disputes
The next largest category of issues, again in both industries, was
rules and working conditions. The boundaries of this category are
imprecise and necessarily arbitrary; many of the issues included in it had
obvious wage implications; some might have been subsumed under the
category of fringe benefits. On the other hand, a number of items
included in the miscellaneous category might just as well have been
listed as rules or working conditions. Those issues included in work rules
and working conditions are call-in pay, crew sizes, days of work,
deadheading, extra boards, hours of service, investigations, job
classifications and reclassifications, overtime, rest days, scheduled days
of work, scope rules, shift differentials, subcontracting, time of payment
of wages, training and retraining, use of mechanical devices, and work
assignments.
The third largest category of issues, again in both industries, was
fringe benefits, including death benefits, disability benefits, expense
accounts, free or subsidized transportation, holidays, hospitalization,
longevity allowances, meals, moving costs, occupational injury or
illness, parking, personal and family travel, severance pay, sick leave,
trip and training expenses, uniforms and protective clothing, and
vacations.
In the railroad industry, there were a significant number of cases
involving the issues of interdivisional and intradivisional runs and
switching limits.. Almost all of these issues arose in cases decided since
1968. This is understandable since the Brotherhood of Locomotive
Engineers did not sign an agreement specifying the use of interest
arbitration for these two issues until May of 1971, and the United
Transportation Union until January of 1972.
Two remaining issues of special interest—seniority and union
security—were only infrequently arbitrated in either industry.
Table I
Issues Decided by Arbitration
(by Category and by Industry)
Railroads
Wages
82
Rules and Working Conditions
96
Fringe Benefits
22
Interdivisional and Intradivisional Runs
10
Switching Limits
15
Seniority
10
Airlines
87
31
31
9
9
The Railway Labor Act of Fifty
Union Security
Miscellaneous
1
22
1
12
A number of the cases involved multiple issues—on a few occasions
virtually an entire contract. It is also clear that in many instances the
arbitration award must have determined the pattern of future bargaining
on certain issues, notably wages and seniority, for years to come. For
example, the decision by Arbitration Board 165,4 arising out of the
transfer of the equipment and routes of American Overseas Airlines, Inc.
(AOA) to PAA, was one of the first to deal with the problem of merging
seniority lists and exerted a considerable influence on subsequent
decisions involving the same problem. In the PAA case, the veteran PAA
pilot group insisted that ex-AOA pilots be given seniority based only on
their length of service with PAA as pilots, which would have meant the
automatic placement of all ex-AOA pilots at the bottom of the merged
seniority list. PAA proposed that ex-AOA pilots be integrated into the
existing PAA seniority list with full credit for all service with AOA and
its predecessor, American Export Lines (AEL). The ex-AOA pilots urged
that they be interspliced into the PAA seniority list on a ratio-bycategory basis. In an exhaustive opinion, reviewing the concept of
seniority, the special seniority problems arising out of the merger or
consolidation of two airlines, and the procedures followed in previous
cases of a similar nature, board chairman David L. Cole rejected all three
proposals submitted by the parties and adopted instead the following
formula:
First, the board constructed two, complete, integrated lists of all exAOA and PAA pilots—one showing the positions they would have if
straight length of service on AOA-AEL and PAA were to be used, and
the other of ratio-by-category were to be the method employed. The
opinion explained:
Having decided that both length of service and status
should have weight but that length of service should
have the greater weight, we have determined what is
one-third of the difference between the numbers on the
two lists and have modified the position on the length of
service list by this one-third. Where the length of service
list number is larger, this one-third has been subtracted
from the length of service number, and where it is lower
than the ratio by category list number then the one-third
adjustment figure has been added to the length of service
number, in order that the resulting figures reflect the
10
Voluntary Arbitration of Interest Disputes
influence of both lists. The resulting figure has been
treated as an index number, to be used in sequence with
all other index numbers in the series in placing the
positions of the ex-AOA pilots on a composite list in
relation to the veteran PAA pilots. In cases of identical
index numbers, or ties, the preference has been given to
PAA pilots, because of their greater length of service.
Arbitration Board 91 5 decided a nation-wide dispute over wages,
involving most of the country’s railroads and approximately one million
employees in the period immediately following the end of World War II.
The railway labor organizations had asked for a general increase of 20
cents per hour. The six-member board held public hearings for the better
part of a month and amassed an enormous record; then, by majority vote,
it awarded a general wage increase of 15.5 cents per hour, effective 1
September 1947. Unaccountably, this decision, which had a major
impact on the immediate post-war wage settlements, was not
accompanied by an opinion.
A third example is the decision of Board 271,6 whose three members
(all neutrals) were appointed by President Kennedy. The principal issue
involved affected all airlines which had formally employed four-member
flight crews in jet aircraft (three of whom were pilots and the fourth a
flight engineer), and were now changing back to three-member crews.
The problem was to determine the qualifications of the third crew
member, as well as to fix the rate of transition from four to three-member
crews. The unanimous decision and opinion of board chairman George
W. Taylor and members George Meany and Edgar F. Kaiser are too
complicated to summarize briefly, but the provisions of the decision
undoubtedly had an important influence on the resolution of similar
problems on other airlines.
E. Settlements and Withdrawals
Apparently, the execution of an arbitration agreement provided the
impetus to a settlement in a number of instances. In about 47 cases no
award was issued, either because the parties reached a settlement before
the board was appointed, or after it was appointed but before it convened,
or because of other circumstances. In about six cases some but not all
issues were withdrawn by the parties from arbitration.
It is impossible to tell whether some or all of the board members
helped to bring about an agreement in those instances in which the
settlement followed the convening of the board. Given the rather formal
procedures that appear to have been followed in most cases, however, to
11
The Railway Labor Act of Fifty
which further reference will be made below, the likelihood that the board
members engaged in successful mediation in a significant number of
these cases seems remote.
F. Hearing Procedures
As previously noted, Section 8 of the Act specifies in great detail
exactly what must be included in a written agreement to arbitrate. It
provides in part:
SECTION 8. The agreement to arbitrate— . . .
(b) Shall stipulate that the arbitration is had under
the provisions of this Act;
(c) Shall state whether the board of arbitration is to
consist of three or of six members;
(d) Shall be signed by the duly accredited
representatives of the carrier or carriers and the
employees, parties respectively to the agreement to
arbitrate, and shall be acknowledged by said parties
before a notary public, the clerk of a district court or
circuit court of appeals of the United States, or before a
member of the Mediation Board, and, when so
acknowledged, shall be filed in the office of the
Mediation Board;
(e) Shall state specifically the questions to be
submitted to the said board for decision; and that, in its
award or awards, the said board shall confine itself
strictly to decisions as to the questions so specifically
submitted to it;
(f) Shall provide that the questions, or any one or
more of them, submitted by the parties to the board of
arbitration may be withdrawn from arbitration on notice
to that effect signed by the duly accredited
representatives of all the parties and served on the board
of arbitration;
(g) Shall stipulate that the signatures of a majority
of said board of arbitration affixed to their award shall
be competent to constitute a valid and binding award;
(h) Shall fix a period from the date of the
appointment of the arbitrator or arbitrators necessary to
complete the board (as provided for in the agreement)
within which the said board shall commence its
hearings;
12
Voluntary Arbitration of Interest Disputes
(i) Shall fix a period from the beginning of the
hearings within which the said board shall make and file
its award: Provided, That the parties may agree at any
time upon an extension of this period;
(j) Shall provide for the date from which the award
shall become effective and shall fix the period during
which the award shall continue in force;
(k) Shall provide that the award of the board of
arbitration and the evidence of the proceedings before
the board relating thereto, when certified under the hands
of at least a majority of the arbitrators, shall be filed in
the clerk’s office of the district court of the United States
for the district wherein the controversy arose or the
arbitration was entered into, which district shall be
designated in the agreement; and, when so filed, such
award and proceedings shall constitute the full and
complete record of the arbitration; . . .
The statute contemplates a tripartite arbitration board consisting of
either three or six members. Section 7, Second provides that the board
shall be chosen in the following manner:
(a) In the case of a board of three, the carrier or
carriers and the representatives of the employees, parties
respectively to the agreement to arbitrate, shall each
name one arbitrator; the two arbitrators thus chosen shall
select a third arbitrator. If the arbitrators chosen by the
parties shall fail to name the third arbitrator within five
days after their first meeting, such third arbitrator shall
be named by the Mediation Board.
(b) In the case of a board of six, the carrier or
carriers and the representatives of the employees, parties
respectively to the agreement to arbitrate, shall each
name two arbitrators; the four arbitrators thus chosen
shall, by a majority vote, select the remaining two
arbitrators. If the arbitrators chosen by the parties shall
fail to name the two arbitrators within fifteen days after
their first meeting, the said two arbitrators, or as many of
them as have not been named, shall be named by the
Mediation Board.
Nevertheless, tripartite boards of nine and seven members have been
appointed, and there has also been at least one board consisting of three
neutrals. In a few instances, one neutral was appointed as sole arbitrator;
13
The Railway Labor Act of Fifty
but in the vast majority of the cases the parties have used a three-person,
tripartite board.
Perhaps because the statute spells out the legal requirements for the
creation and procedure of an arbitration board in such specific detail, the
awards tend to be extremely formal in their manner of presentation. A
typical early example follows:
Come now _____, _____ and _____, being a
statutory Board of Arbitration constituted under the
Railway Labor Act, 45 U.S.C. 151, 157, et. seq., upon a
controversy between the above-named parties,
hereinafter sometimes referred to, respectively, as the
Union and the Carrier, and make and file this, its award
thereon, together with the proceedings had before it
pursuant to said Act.
....
On April 20, 1948, at the City of New York, New York, the Board of
Arbitration on oath heard the witnesses of the parties and received their
exhibits and granted a full and fair hearing, including an opportunity to
present evidence in support of their respective claims to present their
cases by representatives of their choosing and heard their arguments.
And thereupon, and upon full consideration of all the evidence,
exhibits and arguments presented to it, the Board hereby on this, the 27th
day of April, 1948, finds and makes this, its award, under said agreement
and files the same together with the papers and proceedings and
transcript of the evidence taken at the hearing, certified under the hands
of the Arbitrators, with the Clerk of the District Court of the United
States for the Eastern District of New York, wherein the Arbitration was
entered into.
One gains the impression from the awards that the arbitration
procedure is also rather formal in most cases. In part, this is undoubtedly
caused by the necessity of protecting the process from subsequent attack
on the statutory grounds previously cited. A factor of greater influence,
however, is the ad hoc character of statutory arbitration boards under the
Act. Lacking intimate and continuing association with the parties, an
arbitration board must necessarily conduct the hearing in a quasi-judicial
manner. Finally, especially in the early days, many of the neutrals were
lawyers and judges used to the formal procedures of the court room, and
it would be surprising if they had not maintained the same atmosphere in
a statutory arbitration case.
It is impossible to tell the extent to which attorneys have been used
by the parties in the arbitration cases comprising the sample. Most of the
14
Voluntary Arbitration of Interest Disputes
awards either do not list the appearances or do not indicate (e.g., by use
of the term, “Esq.”) whether those appearing were attorneys. On the
other hand, it appears that verbatim transcripts of the arbitration
proceedings were provided in the great majority of cases, and that posthearing briefs were frequently submitted by the parties.
G. Opinions
Another distinctive feature of the arbitration procedure in major
disputes is the frequency with which awards have been issued without
opinions by the neutral or neutrals. This was true in 83 of the first 140
awards, in 10 of the next 29 awards, and in 19 of the next 30 awards.
Only in the last 55 cases in the sample were opinions written in a
majority of disputes (25) that were eventually decided by arbitration.
Moreover, many of the opinions were extremely brief and were scarcely
distinguishable from mere findings of facts.
In the first 140 cases, carrier and union representatives filed written
dissents fairly frequently, often doing so when the neutral wrote no
opinion to explain the award. In that group of cases union board
members wrote dissents in 17, and carrier members wrote dissents in 18.
In one case in which a nine-member board had been appointed, the
majority wrote no opinion, whereas the dissenters, which included one of
the three neutrals, did write an opinion.
The lack of explanatory opinions makes many of the awards virtually
incomprehensible.7 There is no way of knowing whether the parties
expressly asked for an award without opinion in any of these cases, or
whether the neutrals had other reasons for not writing opinions. The
latter possibility might be explained on the theory that the neutrals made
clear the reasons for their awards to the partisan arbitrators during the
executive sessions following the hearings; but that hardly seems an
adequate procedure. Another possible explanation is that custom, which
plays such an important role in the railroad industry, was that opinions
would not usually be written in arbitration cases. That, at least, was the
practice of the NRAB in minor disputes. And it is significant that of the
awards in our sample, those involving airlines were accompanied by
opinions substantially more frequently than those involving railroads.
Finally, it is possible that the parties felt that opinions might cause
confusion, rather than dispel it, and that they were better off with an
unambiguous award which simply told them what they could or could
not do.
Whatever the reason for the infrequency of opinions, however, that
characteristic formerly represented a serious weakness in the procedure
15
The Railway Labor Act of Fifty
of arbitrating major disputes. Happily, since about 1968 the trend has
shifted markedly toward including opinions.
H. Time Involved
One of the most remarkable features of the major dispute arbitrations
is the speed with which they have been completed. In the 233 cases for
which precise data are available, the average number of days between the
date hearings began and the date the award was issued is 35. This figure
is not to be confused, however, with the elapsed time between the date
the parties executed their agreement to arbitrate and the date of the
award. Data on the time between the execution of the agreement to
arbitrate and the date hearings began are so incomplete that not even a
good estimate of an average number of days is possible; but it appears
that in many cases that period extended over a number of weeks or
months.
The 35-day figure is even more surprising when we consider that of
the 169 cases for which information is available, the average number of
days of hearing per case was slightly less than 5½, and that of the 69
cases for which information is available, executive sessions averaged
about 3 days per case.
Averages can, of course, be misleading. The number of days between
commencement of hearings to issuance of award varies tremendously,
from a low of one to a high of 380. Two hundred days were exceeded in
4 cases; 100 days in 16 cases; and 50 days in 42 cases. Similarly, the
number of hearing days varied from a low of less than one day to a high
of 52, and in 60 cases there were more than the average 5 days of
hearing; while in 17 cases executive sessions consumed more than the
average 3 days.
Nevertheless, the overall record of prompt completion of arbitration
awards in major disputes in the railroad and airline industries is an
impressive one, which compares very favorably with the time taken for
arbitration of minor disputes, or for grievance arbitration in the rest of
the private sector.
I. Reconvening of Arbitration Boards
Reference has already been made to Section 8(m) of the RLA,
requiring that differences arising over the meaning or application of an
arbitration award shall be referred back to the same board that issued the
award, or to a subcommittee thereof, for a ruling. This statutory rule is,
of course, at odds with that observed in labor arbitration generally, which
is that once an award has been rendered, the arbitrator is functus officio,
16
Voluntary Arbitration of Interest Disputes
and has no further jurisdiction in the premises unless jointly requested by
both parties to interpret the award.
In the cases in our sample, arbitration boards were reconvened once
in 10 cases; 3 times in one case; 4 times in one case, and 15 times in one
case. The most interesting thing about those cases in which the board
was reconvened more than once is the amount of time that elapsed
between the first and the last reconvention. Thus, in one case the board
was first reconvened on 11 December 1961; reconvened again on 3
February 1969; and reconvened finally on 16 September 1974. In another
the board was reconvened on 15 separate occasions from 7 May 1964 to
29 June 1968. And in still another the board was reconvened 4 times,
commencing in 30 September 1967 and ending on 25 May 1972.
Theoretically, there is no limitation on the number of times a board may
be convened. In the case of Arbitration Board 282, 8 after being
reconvened 15 times and deciding over 300 separate questions involving
the initial award, the three neutral members submitted their written
resignations to President Johnson on 30 October 1968, in order to put an
end to the apparently inexhaustible flood of questions about the award
submitted by the parties. In his reply accepting the resignations on 21
December 1968, President Johnson commented that he was sure no one
had anticipated the amount of time and effort that would be required of
the board members.
Arbitration Board 282 was unique in the sense that it was appointed
by President Kennedy pursuant to a Joint Resolution of Congress, Public
Law 88-108, approved 28 August 1963, to resolve two issues: the use of
firemen on locomotives and the make-up or “consist” of train crews. The
legislation represented the last effort to avert a nationwide shutdown of
rail transportation, and was the culmination of almost four years of
unsuccessful attempts to resolve the dispute on a voluntary basis.
Voluntary arbitration had been proposed earlier by the Secretary of
Labor and had been accepted by the carriers; but the organizations had
rejected the proposal because of some of its procedural provisions.
Because of the very great importance attached by both sides to the
issues submitted to compulsory arbitration, and perhaps because of their
concern over what the neutral members might do, the four partisan
members of the board, as well as counsel for both sides, managed
effectively to keep out of the record most of the information about
industry practices on both issues that would have been useful to the
neutral members in formulating the award. During the 29 days of
hearings, the board was compelled to listen to lengthy testimony and to
receive countless exhibits which were essentially irrelevant. Conversely,
17
The Railway Labor Act of Fifty
it was permitted to hear very little that was relevant. Not until the parties
began to reconvene the board and to raise questions of interpretation did
the neutral members begin to grasp the complexity of the issues dealt
with in the award. In addition, many of the hundreds of questions raised
were arguably extraneous to the original issues; but each point was
presented in considerable detail; lengthy briefs were filed; and on a
number of issues oral argument by counsel was permitted. Finally, the
law establishing the board was attacked on the constitutional grounds,
and the award itself was challenged on the ground that it did not conform
to the statute. Additional litigation concerning the effects of the award on
subsequent bargaining continued at least until 1968. 9 Eventually, the
issues dealt with in the award were resolved through collective
bargaining.
In contrast to Board 282, Arbitration Board 29810 was established as
a result of a voluntary agreement to arbitrate a number of issues arising
out of circumstances in which employees in various classes of service
were required to work away from their home stations. In the former case
the organization members of the board filed extensive and bitter dissents
to the award, and also filed dissenting opinions to many of the
interpretations subsequently issued, as did the carrier representatives on
some occasions. In the latter case, the carrier members of the board wrote
a mild “statement” accompanying the award, in which they expressed
some disagreement with the result, but concluded with the following
paragraph:
We wish to state, however, that the proceedings of
the Board were attended by procedural regularities and
the parties were afforded the opportunity to present their
positions and supporting evidence. Except in relatively
rare circumstances, we believe that where a dispute has
been submitted to arbitration some responsibility
devolves upon all members of the Arbitration Board to
act with the majority in the completion of the official
functions of the Board. We have deemed it appropriate,
therefore, to join in the Award and to enter of record this
brief statement of our separate views.
It is significant that all 76 interpretations of the award subsequently
issued by the six-member board were unanimous.
The sharp contrast between Boards 282 and 298 emphasizes yet
again what most well-informed students of industrial relations have
believed for a long time, namely, that, as stated in the opinion of the
neutral members accompanying the award in Board 282, “[t]he great
18
Voluntary Arbitration of Interest Disputes
virtue of arbitration has been the fact that it was a voluntary procedure,
created and shaped by the disputing companies and unions themselves
and thus responsive to their peculiar problems, values, and needs.”
Public Law 88-108 can be called a success only in the sense that it
prevented a nationwide railroad strike. The award issued by Board 282
was predestined to create as many problems as it sought to resolve
because the parties and their partisan representatives on the board
assumed no responsibility for the results. Every effort by the three
neutral members to gain a deeper understanding of the issues prior to the
issuance of the award was thwarted by the common stand of the four
partisan members that the award must be based solely on the record
made during the formal hearings. As previously noted, that record,
despite its voluminousness (5,000 pages of transcript of testimony by
over 40 witnesses; 200 documentary exhibits, together with a number of
motion pictures, photographs, and charts) was wholly inadequate for the
purpose. The intense adversary spirit that permeated the initial
proceedings leading to the award continued during the ensuing five years
when the interpretations were issued. Clearly, the parties were primarily
interested in winning points rather than in solving problems.
It must be conceded, of course, that the issues involved in Board 282
were especially difficult; at stake were not only millions of dollars in
wages, but also the very existence of one of the organizations concerned
(the BLFE). The parties were simply incapable of resolving the issues by
mutual agreement until certain other events occurred, such as the merger,
in 1969, of four of the five operating unions (firemen, trainmen,
conductors and brakemen, and switchmen) into one organization, the
UTU. The decision imposed in 1963, in order to prevent a nationwide
strike, was necessarily arbitrary. It may have been a temporary and
uneasy victory for industrial peace, but it was no victory for collective
bargaining.
J. Costs of Arbitration
Section 7, Third(e) of the RLA provides that each member of any
arbitration board named by a party to the arbitration shall be
compensated by the part/y naming him, and that each arbitrator selected
by the other arbitrators or by the NMB shall receive from the NMB
“such compensation as the Mediation Board may fix, together with his
necessary traveling expenses and expenses actually incurred for
subsistence, while serving as an arbitrator.” The Act, however, does not
preclude the parties themselves from jointly paying the neutral member
or members of the board, which they sometimes do.
19
The Railway Labor Act of Fifty
Cost data provided by the NMB on the voluntary arbitration of major
disputes are incomplete, covering only 108 boards in the fiscal years
1959 through 1975. These data do not, of course, include the expenses
incurred by the parties themselves, but only what the NMB spent on
salaries, per diem, printing, and other services.. What they show is that
the total cost to the Government of 108 arbitration boards, including the
times they were reconvened, was $261,903, or $2,425 per case. Over 75
percent of the total cost (about $200,392) went for salaries and per diem.
Considering the high costs of some of the 108 cases (the total cost to
the Government of Board No. 282, for example, was almost $83,000), as
well as the importance of many of the issues, the average amount spent
per case seems relatively reasonable. This is especially so if one
considers the possible alternatives, including emergency boards
established under Section 10 of the Act, or, possibly, strikes.
IV. Concluding Observations
The sample of cases upon which this study is based, although
incomplete, is sufficiently representative to justify the following
conclusions.
First, the voluntary arbitration of major disputes in the railroad and
airlines industries has been a significant part of the collective bargaining
system under the RLA since about 1940. This method of disputes
settlement has been used successfully in a substantial number of cases.
Within the past six years, important agreements to arbitrate future major
disputes have been entered into by major carriers and unions in both
industries. These agreements have not been accompanied by the fanfare
that marked the execution of the 1964 Experimental Negotiating
Agreement in the steel industry, which provided for the voluntary
arbitration of all issues left unresolved in negotiations over the terms of a
new agreement, but they are of considerable importance not only to the
parties involved, but to the general public as well.
Second, the arbitration procedures required by the statute are formal,
but not unduly confining. The parties have ample discretion to frame the
issues to be arbitrated in any way they can agree upon; they also have
considerable leeway in specifying the procedures they wish to follow.
Nevertheless, so far as one can tell from the bare text of most of the
awards in the sample, the procedures followed have tended to be
extremely formal, and are not necessarily the most desirable for this type
of arbitration.
Most of the boards have been tripartite. That means that the neutral
chairman has had, in effect, to mediate between the partisan members in
20
Voluntary Arbitration of Interest Disputes
order to gain a majority for a decision. Major disputes, by definition,
involve interests, not rights; the arbitration of such disputes may thus be
said truly to be an extension of the collective bargaining process. The
importance of arriving at an award that is within the limits of
acceptability of both sides cannot be overstated. An outsider studying the
awards in our sample, without knowing what actually went on during the
hearings and executive sessions, can only venture tentative and highly
vulnerable observations about the process. It appears to this observer,
however, that the customary procedures followed by the voluntary
arbitration boards under the RLA have been a little too formal and rigid
than is necessary or desirable.
Third, the provision of the RLA for reconvening arbitration boards is
of dubious utility. It is one thing for parties to an award jointly to agree
to submit questions arising out of the award to the board that issued it; it
is quite another to allow either party unilaterally to do so. As the history
of Board 282 shows, the procedure can be abused by parties seeking, not
interpretations, but rulings on new issues of which the board was
unaware when it rendered its award. Judging from the relative
infrequency with which arbitration boards have been reconvened,
however, the issue is of minor concern.
Fourth, in terms of time lapse between the first day of hearing and
issuance of the award, and of the cost of the procedure, voluntary
arbitration of major disputes under the RLA compares favorably with
other RLA disputes settlement procedures and with arbitration generally
in the rest of the private sector.
Fifth, the cases in our sample show that voluntary arbitration of new
contract terms is one effective way of resolving important disputes in
industries in which strikes, although not forbidden outright, are actively
discouraged. But the accent is on the word “voluntary.” The lesson
taught by Public Law 88-108 and Board 282 is that virtually all of the
values of this method of settling disputes are lost if the process is forced
upon the parties against the will of either of them.
Finally, it is important to recognize that voluntary arbitration cannot
be expected to solve all the problems of industries which must try to live
with savage competition, considerable government regulation, declining
employment, rapid technological advances, and a host of other adverse
circumstances. There are some issues which one side or the other cannot
agree to submit to a third party or parties for final and binding settlement.
It was unrealistic, for example, to expect that the BLFE would agree to
submit the fireman manning issue to arbitration, when one likely result
was the virtual destruction of the union itself. And when it saw how
21
The Railway Labor Act of Fifty
quickly the carriers moved to exploit the terms of the award and to get
rid of thousands of firemen (albeit with a “golden handshake”), it
predictably sought aid from the courts and interpretations from the
reconvened board that might soften the impact of the board’s award on
its members.
The economic problems facing the railroad and airline industries, as
well as the unions representing their employees, are likely increasingly to
create a number of what each side considers to be “survival issues.” It
will take an industrial statesmanship of a high order—a quality not
consistently detectable in the individual or collective leadership on either
side—to resolve those issues in a peaceable and constructive manner.
Voluntary arbitration is a useful tool for that purpose, but it cannot be
expected to do the whole job. If the collective bargaining systems in
these industries remain healthy and effective, voluntary arbitration of
major disputes will continue to play an important role in those systems.
But if those systems break down, neither voluntary arbitration nor any
other disputes settlement devices will be able to save them.
__________
* Professor of Law, University of California-Los Angeles
1. Some cases were withdrawn or settled, or disposed of in some manner other than by
arbitration. In approximately 35 cases, the issues actually involved minor disputes;
those cases were therefore excluded from this study.
2. The RLA has the dubious benefit of two Section 8’s. The first, referred to here, was
part of the 1926 Act. The second, a standard separability clause, was added by
amendment. (Act of June 21, 1934, Pub. L. No. 73 -442 § 8, 48 Stat. 1197.)
3. Section 6 provides:
Carriers and representatives of the employees shall give at least thirty days’ written
notice of an intended change in agreements affecting rates of pay, rules, or working
conditions, and the time and place for the beginning of conference between the
representatives of the parties interested in such intended changes shall be agreed
upon within ten days after the receipt of said notice, and said time shall be within the
thirty days provided in the notice. In every case where such notice of intended
change has been given, or conferences are being held with reference thereto, or the
services of the Mediation Board have been requested by either party, or said Board
has proffered its services, rates of pay, rules, or working conditions shall not be
altered by the carrier until the controversy has been finally acted upon as required by
Section 5 of this Act, by the Mediation Board, unless a period of ten days has
elapsed after termination of conferences without request for or proffer of the
services of the Mediation Board.
4. Pan American World Airways, Inc. and Air Line Pilots Association, International, 1
May 1952.
5. Carriers Represented by Eastern, Western, and Southeastern Carriers’ Conference
Committees and Employees’ National Conference Committee—Seventeen
Cooperating Railway Labor Organizations, 2 September 1947.
6. Pan American World Airways, Inc. and Air Line Pilots Association, International,
21 May 1962.
22
Voluntary Arbitration of Interest Disputes
7.
On the other hand, a number of decisions were accompanied by comprehensive, well
written opinions. See notes 4 and 5 supra. Other examples, picked at random,
include Arbitration Board 177, Union Railroad Co. and Brotherhood of Railroad
Trainmen, 24 March 1953; Arbitration Board 290, Cincinnati, New Orleans and
Texas Pacific Railway Co. and Brotherhood of Locomotive Engineers, 15
November 1965; Arbitration Board 294, Pan American Airways, Inc. and Transport
Workers Union of America, 4 May 1967; and Arbitration Board 305, Pan American
World Airways, Inc. and Flight Engineers International Association, PAA Chapter,
21 May 1970. Although it is dangerous to generalize, it appears that the best
opinions have been written by arbitrators with considerable experience in grievance
arbitration outside of the railroad industry, where the tradition of writing opinions is
well established. The airline industry is much closer to that tradition than it is to the
practice under the NRAB, in which opinions accompanying awards are the
exception rather than the rule. This may explain why a greater percentage of wellwritten opinions in our sample are in cases from the airline industry.
8. Certain Carriers Represented by the Eastern, Western, and Southeastern Carriers’
Conference Committees, and Certain of Their Employees Represented by The
Brotherhood of Locomotive Engineers, Brotherhood of Locomotive Firemen and
Enginemen, Order of Railway Conductors and Brakemen, Brotherhood of Railroad
Trainmen, and the Switchmen’s Union of North America, 26 November 1963.
9. A good history of events leading up to the appointment of Arbitration Board 282,
and of the litigation following the issuance of its award, is to be found in the opinion
of the Court of Appeals for the District of Columbia in Brotherhood of Railroad
Trainmen v. Akron & Barberton Belt R.R., 385 F.2d 581 (D.C. Cir 1967), cert,
denied, 390 U.S. 923 (1968).
10. Carriers Represented by the National Railway Labor Conference and the
Southeastern, Eastern, and Western Carriers’ Conference Committees and
Employees’ National Conference Committee, Five Cooperating Railway Labor
Organizations, 30 September 1967.
23
Emergency Boards
CHAPTER VI
EMERGENCY BOARDS UNDER THE RAILWAY LABOR ACT
Donald E. Cullen*
Every law dealing with emergency strikes in this country has been a
source of considerable controversy, for in both the public and private
sectors the issues are complex and the stakes very high for all parties
involved. It is therefore not surprising that labor and management came
to disagree bitterly over the merits of the emergency board provisions of
the Railway Labor Act, in spite of the parties’ cooperation in framing
those provisions in 1926.
It is surprising, however, to observe the consensus that has
developed on this subject among industrial relations neutrals, usually a
contentious lot. The Act initially won glowing reviews from scholars and
public officials alike during the first two decades of its history, and then
expert opinion underwent a remarkable reversal as nearly every serious
study of the Act since the mid-1940’s concluded that it has been a
disappointment, if not an outright disaster, in coping with major
bargaining disputes in the railroad and airline industries.1
Policy makers also became increasingly disenchanted with the
emergency provisions of the Act during the 1960’s, leading to President
Nixon’s proposal in 1970 that those provisions be scrapped and
bargaining disputes in all transportation industries be subject to an
amended version of the Taft-Hartley Act. The President argued that the
emergency procedures of the Railway Labor Act had proved to be a
failure on several counts: they had been invoked far too often (“designed
as a last resort, the emergency procedures have become almost a first
resort”); this easy availability of boards discouraged genuine bargaining;
and too often board recommendations had failed to settle disputes,
requiring yet more government intervention to cope with actual or
threatened strikes.2
The Nixon proposal was itself criticized on many grounds and failed
to win even committee clearance in either house of Congress, but most of
the witnesses who testified on that proposal nevertheless agreed that
some kind of change was needed in the emergency provisions of the
3
Railway Labor Act. Nor have those provisions subsequently won many
1
The Railway Labor Act of Fifty
admirers; in fact, a recent appraisal pronounced them “ripe for
oblivion”!4
This chapter attempts to evaluate those controversial emergency
provisions of the Railway Labor Act by drawing on not only the usual
written spurces but also the results of interviews with several union and
management representatives, neutrals who have served on emergency
boards, staff and board members of the National Mediation Board, and
other friends and foes of the Act.5 The thesis of the chapter is that the
emergency procedures of the Act have indeed performed poorly in
several (though not all) respects during critical stretches of their first fifty
years, particularly the 1940’s and 1960’s, but recent changes in the
administration of the Act, and in many of the bargaining relationships on
the railroads, have significantly improved the performance and prospects
of these emergency procedures in the mid-1970’s.
Procedures and Intent
The emergency provisions of the Railway Labor Act have remained
unchanged since 1926, except for the replacement in 1934 of the fivemember Board of Mediation by the three-member National Mediation
Board (NMB) and the extension in 1936 of these (and all other)
provisions of the Act to the air transport industry.
Section 5 of the Act provides that if labor and management in the rail
and air industries cannot settle a dispute themselves, either may call in
the NMB, or the Board may volunteer its services “in case any labor
emergency is found to exist at any time.” When the Board enters a
dispute, its mandate is to “use its best efforts” to obtain an agreement by
mediation and, if that fails, to attempt “to induce the parties to submit
their controversy to arbitration.” If one or both of the parties refuse to
arbitrate, the NMB notifies them in writing that mediation has failed, and
for the next thirty days “no change shall be made” unilaterally in wages
or working conditions.
Section 10 of the Act provides that at any point during that thirty-day
period of status quo, if the Mediation Board decides that the dispute
“threaten[s] substantially 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, who in his discretion may
then “create a board to investigate and report respecting such dispute.”
This emergency board is directed to report to the President within thirty
days of its appointment, and during those thirty days and “for thirty days
after such board has made its report to the President, no change, except
2
Emergency Boards
by agreement, shall be made by the parties ... in the conditions out of
which the dispute arose.”
Thus, the Act provides the President with a method for postponing a
rail or air strike for a period that is at least sixty days in length, and may
be longer, during which it is hoped the parties will settle voluntarily with
the aid of an ad hoc board. If the parties do not settle, the Act is silent on
what further action the government may take. Also notable is the Act’s
assumption of voluntary compliance; Sections 5 and 10 simply tell the
parties when they should not take unilateral action, without any mention
of injunctions or seizure or other possible penalties for noncompliance.
This emphasis on voluntary action reflects the unique cooperation of
labor and management in framing the Act in 1926, as described by
Rehmus in Chapter I. The intentions of the parties at that time have been
well summarized by Kaufman:
It is quite apparent that the drafters and enactors of
the Railway Labor Act expected that few emergency
boards would be created, that such boards would be
concerned with .broad issues, that the recommendations
would be made in the broadest of possible terms . . . and
that public opinion would play a vital role in forcing the
recalcitrant party to abide by the recommendations of the
boards. . .
The labor spokesman at the 1926 Congressional hearings stated that
he did not “think that you will have very many disputes that will ever go
to the emergency board” . . . [because] the arbitration provisions of the
law were so fair that “we believe that there will be recourse to arbitration
in practically every instance where the mediators can not bring about an
agreement.” 6
The Historical Record
Few laws ever accomplish all that their proponents hope for, but the
data in Table 1 indicate that the Railway Labor Act has fallen miles short
of its framers’ expectation that emergency boards would be a rarely used
court of last resort. The total of 198 boards appointed from 1926 through
1975 implies that labor disputes so critical as to require Presidential
intervention occurred on an average of four times every year in only one
or (since 1936) two industries, a frequency that not only mocks the term
“emergency” but, more important, also provides reasonable grounds for
suspecting that Section 10 of the Act may indeed undermine the
bargaining process, as its critics charge.
3
The Railway Labor Act of Fifty
Table 1.
Emergency Boards and Strikes in the Railroad and
Airline Industries, 1926-1975.
Number of
Emergency Boards
Year
Appointed1
Number of Strikes2
Rail
Air
Rail
Air
1926............................ —
—
n.a.
n.a.
1927............................ —
—
—
—
1928............................
2
—
1
—
1929............................
1
—
3
—
1930............................
—
—
1
—
1931............................
1
—
—
—
1932............................
1
—
—
1
1933............................
4
—
—
1
1934............................
2
—
—
—
1935............................
—
—
1
1
1936............................
1
—
2
—
1937............................
4
—
6
—
1938............................
1
—
1
—
1939............................
—
—
—
2
Table 1.
Emergency Boards and Strikes in the Railroad and
Airline Industries, 1926-1975. (Continued)
Number of Emergency
Year
Boards Appointed 1
Number of Strikes 2
Rail
Air
Rail
Air
1940............................
1
—
1
—
1941............................
5
—
5
—
1942............................
—
—
9
—
1943............................
—
—
8
1
1944............................
5
—
12
—
1945............................
13
—
13
2
1946............................
12
2
17
2
1947............................
10
—
7
2
1948............................
11
1
12
3
1949............................
11
1
10
3
1950............................
14
1
17
3
1951............................
4
2
17
5
1952............................
—
4
15
7
1953............................
3
—
23
7
1954............................
2
1
10
4
4
Emergency Boards
1955............................
1956............................
1957............................
1958............................
1959............................
1960............................
1961............................
1962............................
1963............................
1964............................
1965............................
1966............................
1967............................
1968............................
1969............................
1970............................
1971............................
1972............................
1973............................
1974............................
1975............................
TOTALS
1.
2.
5
2
3
7
5
6
3
6
1
—
3
2
3
2
1
3
2
1
2
165
—
—
—
5
1
1
5
4
2
—
—
3
—
—
—
—
—
—
—
—
33
20
14
15
11
10
16
9
4
8
27
19
23
28
19
11
29
9
6
3
6
5
483
7
3
3
13
5
8
2
1
5
9
3
7
9
6
7
12
3
4
6
8
8
173
Boards are assigned to the calendar year in which they were appointed. Although a
total of 198 boards were appointed through 1975, the last board appointed in 1975
was designated number 187 because the numbering system began only after the
establishment of the National Mediation Board in 1934 (after the last of the 11
boards appointed under the U.S. Board of Mediation). Also, in addition to the 198
boards appointed under Section 10 of the Railway Labor Act, 51 emergency boards
were appointed in the 1942-47 period from the National Railway Labor Panel, a
wartime device established by Executive Order 9172 to supplement the procedures
of Section 10.
A strike is denned as a temporary stoppage of work by a group of employees to
express a grievance or enforce a demand. There is no attempt to distinguish between
legal or “illegal” strikes, or strikes that occur during the term of a contract or at the
expiration of a contract. Because of differing coverage, BLS and NMB data on
airline strikes differ slightly for several years; the NMB data were used in all such
cases.
SOURCES: Emergency board data for 1926-34 from Annual Reports of the U.S. Board of
Mediation and from the U.S. Bureau of Labor Statistics, Handbook of Labor
Statistics, 1931 ed. (Bulletin 541), p. 13, and 1936 ed. (Bulletin 616), pp. 21-26.
Board data for 1935-1975 from the files and Annual Reports of the National
Mediation Board.
Strike data for 1927-1936 from Florence Peterson, Strikes in the United States,
1880-1986, U.S. Bureau of Labor Statistics, Bulletin 651, Table 37, pp. 154-155.
5
The Railway Labor Act of Fifty
Strike data for other years from BLS annual reports on work stoppages; BLS, “Fact
Sheet on Work Stoppages in the Airline Industry, 1946-70”, April 1971; and BLS,
“Collective Bargaining in the Railroad Industry”, April 1975; and the files of the
National Mediation Board.
It is true, of course, that those making rosy predictions in 1926 could
not have foreseen the severity of the problems that subsequently
confronted the negotiators in railroads—plummeting employment,
changing technology, loss of competitive position—nor could they have
foreseen the inclusion under the Act of air transport, with its special
bargaining problems. It is also true that approximately 10,000 rail and air
disputes have been settled in mediation during the first fifty years of the
Act, and there are yet other criteria that .must be considered in appraising
the Act’s emergency provisions. Even granting those several
qualifications, however, Section 10 of the Act must be judged a
disappointment by the particular measure of gross frequency of use.
But Table 1 also shows, not surprisingly, that the incidence of
emergency boards has fluctuated considerably around its long-term
average of four per year. When those fluctuations are examined by
specific periods, Section 10’s record looks better in some respect—but
even worse in others.
The1926-40 Period
As Rehmus notes in Chapter I, the Railway Labor Act won its
reputation as a model labor law during the years 1926-40, a period that
teemed with sources of possible conflict. Employment in railroads
dropped by one third over that period, the carriers repeatedly demanded
that wages be cut during the 1930’s, and union organization was then
taking place in the airlines. Yet, over those fifteen years, only sixteen
strikes occurred in railroads and (after coverage was extended in 1936)
only two in airlines, none of them a major stoppage, and only eighteen
emergency boards were appointed, most of which appeared to be
successful in achieving settlements through mediation or on the basis ‘of
their written recommendations.7
A survey of the major “wage movements” in railroads during this
period strengthens the impression that both the bargaining process and
the Act were then working reasonably well. In the movement initiated in
1926, settlements were made regionally (with the operating unions) and
on individual roads (with the nonoperating crafts) through a mixture of
negotiation, mediation, interest arbitration, and the efforts of one
emergency board, appointed in 1928 to deal with a dispute on the
western roads. This board presented an ingenious recommendation that
6
Emergency Boards
the 66,000 employees involved be allowed to vote on three packages of
wage and rule changes—a 6½ percent wage increase without change of
rules, 7½ percent with two rules eliminated, and 7½ percent with four
rules made arbitrable—and that the carriers abide by the results of this
referendum. The parties accepted that recommendation, the employees
opted for the lower wage increase without change in rules, and the
dispute was settled.
In late 1931, the carriers initiated industrywide bargaining with a
proposal of a 15 percent wage reduction, and the parties eventually
agreed, apparently with no outside help, on a 10 percent cut. In 1933 and
1934, however, industrywide negotiations over the extension of these
wage reductions were mediated by the Federal Coordinator of
Transportation and “frequently by the President himself”.8 In 1937, the
National Mediation Board successfully mediated the next major wage
dispute, which resulted in the first increase of rail wages above their
1931 levels. But the recession beginning in late 1937 led to a carrier
demand that wages be cut once again, and this national dispute went to
an emergency board in 1938. The board recommended against any wage
reductions, the carriers dropped their demands, and the major wage
movements of the 1926-40 period were concluded.
Also notable in this period was the negotiation by the parties,
without resort to strikes or emergency boards, of two national
agreements that influenced job security decisions on railroads for many
years: the so-called Washington Job Protection Agreement of 1936,
which is still in effected and provides protection for employees adversely
affected by mergers and consolidations, and the 1937 National Diesel
Firemen’s Agreement, which governed the use of firemen on diesel
engines until 1964.
It has become customary to dismiss the Act’s performance during
this period as something of an illusion, and it is true that the railway
unions were then well established and did not need to resort to the
organizing strikes that swept through other industries in the 1930’s, that
even well established unions had little bargaining power during those
depressed years, and that almost no bargaining whatever occurred on the
airlines before the 1940’s. Yet, the facts remain that during this period
collective bargaining on the railroads consistently produced peaceful
agreements at a time of tremendous pressures on both labor and
management; those agreements do not appear to have unduly favored
either party; emergency boards were used sparingly and effectively in
major disputes; and Presidential intervention outside the procedures of
the Act occurred only in the very depths of the depression.
7
The Railway Labor Act of Fifty
On balance, then, the emergency provisions of the Act deserve good
grades for their performance from 1926 to 1940. If the Act were
something less than the model its champions then claimed, it was also
considerably more effective during this period than its critics later
charged.
Early Warnings
There were nevertheless some omens of the troubles that lay ahead.
For example, since only two emergency boards were involved in the
major regional and national railway negotiations of that period, why
were a total of eighteen boards appointed? One reason is that there did
not exist then (as there does not exist today) any precise definition of the
disputes to which the Act should be applied, and therefore boards could
be and were appointed in many disputes of limited geographic scope.
Section 10 says that a dispute qualifies if it threatens to deprive “any
section of the country of essential transportation service,” but how large
is a “section” and how does one determine whether a service is truly
“essential”?
The very first board appointed under the Act illustrates the problem,
for it dealt with a dispute on a single road with only 737 miles of track in
a predominantly rural area. The board found, however, that the line “taps
an extended section of southwest Texas and some counties in Oklahoma
not conveniently served by any other carrier,” that there had been a
marked increase in the line’s traffic in agricultural products and in traffic
servicing the recently discovered oil fields in Texas, and that “there is
built up along the line a large population dependent on it for essential
transportation serivice.”9 In fact, of the eighteen boards appointed from
1926 through 1940, eleven dealt with disputes on single carriers—some
as large as the Southern Pacific but others even smaller (in trackage) than
the road involved in the first case under Section 10.
Also, that first emergency board was confronted with eight
individual grievances as well as the issue of a general wage increase. The
board stated that its function did not include ruling on individual
grievances and it recommended only that the carrier become a member
of the regional board of adjustment to which the unions already
belonged. Grievances nevertheless continued to be mixed with broader
issues in other emergency board cases until, inevitably, a board was
appointed in February 1934 for a dispute in which the only strike issue
was the disposition of unsettled grievances on a single carrier. The
parties in this dispute were members of a board of adjustment, but the
unions had failed to submit some of the grievances at issue to the
8
Emergency Boards
adjustment board and the carrier had refused to accept that board’s
awards concerning other grievances that had been submitted.10
To those charged with administering the Act, it was in one sense
irrelevant whether the cause of a particular strike was an industrywide
wage dispute or the grievance of a single employee; if the potential
impact of a strike were judged to be critical, Section 10 offered the only
method of stopping it. As the first emergency board noted, however, the
clear intent of the 1926 Act was that grievances should be settled by the
adjustment boards authorized in Section 3 and not by the emergency
boards of Section 10.” The establishment of the National Railroad
Adjustment Board in 1934 failed to resolve this problem, and grievance
disputes continued to bedevil the Act’s emergency procedures until the
Chicago River decision in 1957.12
Yet another source of difficulty, prompting the appointment of more
boards than might have been expected, lay in two bargaining conventions
of the rail industry: most labor agreements did not have a fixed duration,
and different bargaining issues were often handled in different
negotiations and in different agreements. These bargaining practices
obviously provided the parties with considerable flexibility, but just as
obviously such a bargaining system invited the risk of more impasses
and strikes than the system, typical of other industries, in which the
parties negotiate a single contract, that resolves all the major issues for a
fixed period of a year or more.13
Thus, when the conductors and trainmen on the western roads lost a
demand for a wage increase in interest arbitration in June 1927, they
were justified by custom and contract in reopening wage negotiations
with the same carriers scarcely four months later—negotiations which
eventually led to the appointment of the second emergency board under
the Act. And two months after that board issued its report, the conductors
and trainmen were again justified when they joined two other unions in
initiating negotiations on certain nonwage issues with one of the carriers
involved in the just-concluded wage case—negotiations which also
deadlocked and led to the appointment of the third emergency board
under the Act.14
Underlying and aggravating these several problems was the
splintered bargaining structure in railroads, described by Rehmus in
Chapter I. With over twenty craft unions negotiating in shifting
coalitions with scores of Class I railroads (and hundreds of smaller
roads), the opportunities for conflict were nearly limitless. Among the
disputes in which boards were appointed during this period, for example,
one involved a single union and a single carrier, another was the 1938
9
The Railway Labor Act of Fifty
national case in which nineteen unions bargained with most of the Class I
roads, and between those extremes were all kinds of combinations, such
as 2 unions and 10 carriers, 5 unions and one carrier, and 2 unions and 3
carriers.
The mixture of these elements explains why nearly twenty
emergency boards were appointed during a period when Section 10 was
used only twice in “major” negotiations. Those major negotiations
usually settled only one issue, and meanwhile other negotiations could be
(and often were) continuing on any other issue in dispute between one or
more unions and one or more carriers; if even one union and one carrier
went to impasse on one issue (or one grievance), “essential transportation
service” might be endangered in some “section of the country”; and most
negotiations produced agreements that only settled a few issues and
could be reopened at any time. And since most of those bargaining
practices persisted on the railroads over much of the fifty-year history of
the Railway Labor Act, they also explain a large share of the 180
emergency boards appointed after 1940.
Three other features of the 1926-40 period deserve brief mention.
First, the open-ended nature of railroad contracts and the strike-delaying
procedures under Sections 5 and 10 of the Act combined to produce very
lengthy negotiations in many cases. Without the goad of a fixed contract
expiration date and with the power of the National Mediation Board to
determine within broad limits the length of the mediation phase,
negotiations could drift on for several months.
This problem, like so many others, was present in the first Section 10
case, in which nine months elapsed from the opening of negotiations to
the report of the emergency board. The board commented:
During these negotiations extending over a long
period of time, there were frequent delays which
apparently created friction and made it difficult to arrive
at a settlement without resort to Federal agencies
established for that purpose.15
Second, Congress and the Executive branch played important roles
in resolving several types of labor problems in the rail and air transport
industries during these years, just as they had before the 1926 Act was
adopted and as they would again when the Act faltered after 1940.16
Finally, as Northrup has pointed out, prior to 1941 the emergency
procedures of the Act were not tested by any major decision or
recommendation that the railroad unions considered adverse.17
10
Emergency Boards
In spite of these early problems and portents, the Act did perform
creditably from 1926 through 1940 in promoting the peaceful resolution
of bargaining disputes on the railroads.
The 1941-52 Period
Table 1 shows that a total of 85 emergency boards were appointed to
deal with railroad disputes from 1941 through 1952, an average of 7 each
year—or, if one includes the 51 boards appointed in 1942-47 from the
National Railway Labor Panel, an average of 11 boards each year, nearly
triple the 50-year annual average. Also, the total of railroad strikes
soared from 16 in 1926-40 to 142 in 1941-52, an average of 12 per year,
and increased strike activity on the airlines led to the appointment of the
first emergency boards in that industry.
Several observers date the critical turning point in the Act’s history
as November 1941. Earlier that year, industrywide negotiations involving
all but two of the railroad unions had deadlocked over the issues of
wages, vacations with pay, and rule changes. The Act’s emergency
procedures then went into action: first, mediation failed to produce a .
settlement; next, management accepted the proffer of arbitration but the
unions rejected it; then, an emergency board was appointed and on
November 5 made recommendations that management accepted but the
unions rejected; and finally the operating unions announced a strike to
begin upon the expiration of the thirty-day period of status quo.
At that point, President Roosevelt might have been expected to
announce his support of the board’s recommendations, but instead he
held a series of conferences with the parties and then took the
unprecedented step of reconvening the emergency board “in order to give
the parties further opportunity to present their views on the
recommendations and offer additional argument in defense of their
positions.” 18 Two days of reargument produced no changes in the
positions of the parties or the recommendations of the board, which then
offered to mediate the dispute and, shortly before the strike deadline,
obtained a settlement well above its own recommendations on the key
wage issue. The operating unions won an hourly increase equal to about
9 percent instead of the 7.5 percent first recommended, and the
nonoperating unions received 10 cents (15 percent) instead of the 9 cents
(13.5 percent) recommended.
That was the pattern that became all too familiar in major rail
disputes during this period. The next national wage movement peaked in
1943, when the unions rejected the recommendations of three different
boards. President Roosevelt personally arbitrated one of these disputes,
11
The Railway Labor Act of Fifty
awarding terms a little better than any of the boards had recommended,
and he seized the railroads when other unions declined his offer of
arbitration and set a strike date; eventually his arbitration award provided
the basis for settling the other disputes. In another 1943 dispute, the socalled “diesel locomotive case,” Roosevelt also urged the carriers to
negotiate further when the firemen’s union rejected a board’s
recommendation, resulting in an agreement slightly more favorable to the
union.
In 1946, President Truman seized the roads and offered two
operating unions more than an emergency board had recommended; the
unions rejected his offer and launched a nationwide strike that ended,
after two days, only as Truman was addressing Congress, asking for
authority to draft the strikers, strip them of their seniority rights, and
permit the government to determine the workers’ wages and retain the
companies’ profits during the period of seizure. In 1948 and again in
1950, both seizure and injunctions were used to head off rail strikes
following union rejection of emergency board reports, and in the winter
of 1950-51 the Trainmen’s Union was twice fined for violating one of
those injunctions.19
Criticisms
By the end of the 1941-52 period, railroad management was calling
for compulsory arbitration, the first scholarly studies attacking the Act
had appeared, and even the National Mediation Board, certainly no
enemy of the Act, was warning that a continuation of the post-1940
bargaining practices “can result only in a complete breakdown of the
machinery for the settlement of wage and rules disputes which was so
carefully and hopefully constructed by the legislators and sponsors of the
Railway Labor Act in 1926.”20
Most troubling to all these critics, of course, was the pattern
described as follows by the NMB:
Until the wage movements of 1941, the
recommendations of emergency boards were commonly
accepted by both sides. After the experience of that year,
the pattern changed, and it has become customary to
reject, rather than accept, the recommendations of
emergency boards set up to handle national wage and
rules movements. The outstanding exception was the
acceptance of the recommendations of the board on
the 40-hour week for nonoperating rail employees,
made in 1948.In practically every other instance of
12
Emergency Boards
this nature since 1941, emergency board
recommendations have served only as a base to be
used for securing further wage and rule concessions in
a final settlement, usually made under Executive
auspices.21
That kind of criticism raises difficult questions, still unanswered
today, about the purpose of fact-finding boards such as those provided in
Section 10 (and in many recent laws governing bargaining in the public
sector). If both parties are expected to accept such boards’
recommendations without any changes and in every case, there would be
no significant difference between this kind of “voluntary” procedure and
compulsory arbitration. On the other hand, if board reports are expected
only to provide “a basis for peaceful settlement,” or to “contribute
substantially” to such settlements,22 how often and by how much can
final settlements deviate from recommendations without undermining the
entire board process? After all, the settlement in the 1941 wage case was
only about 1.5 percentage points higher than that recommended by the
board (although as much as 20 percent higher than the board’s
recommendation), and yet that precedent is generally accepted to have
been critical in altering the parties’ expectations.
And once the parties expected major disputes to go at least to the
board level, if not the White House, the effect on the negotiation process
was often devastating. To quote again from the Act’s friendliest critic,
the National Mediation Board, in 1950:
. . . mediation of these national wage and rules
movement [since 1939] has in most cases proved
unsuccessful. In fact, it has become customary for both
carriers and [labor] organizations to prepare for the
presentation of their cases to emergency boards while
mediation is in progress . . .
We cannot too strongly stress the need for a return to
the practice of honest and sincere collective bargaining. .
. before either side seeks mediation services, and the
functioning of subsequent adjustment procedures under
the act.23
What went wrong during this period? One popular explanation is that
Presidents Roosevelt and Truman acted from a variety of motives—a
genuine desire to head off emergency strikes, a general interventionist
philosophy, a desire to court labor votes—when they responded to union
dissatisfaction with several boards’ recommendations by “persuading”
employers to offer a little more; that labor leaders naturally exploited
13
The Railway Labor Act of Fifty
these opportunities by refusing to settle short of the White House; and
employers were helpless to resist this pattern. Kaufman has also argued,
however, that railroad unions became increasingly dissatisfied with the
results of Presidential intervention and the virtual elimination, through
seizure and the injunction, of their right to strike on national issues, but
their attempts to return to bargaining near the end of this period were
thwarted by the carriers’ own interest in securing emergency boards. 24
Also, it must be remembered that these years were a period of great
turmoil in bargaining relationships within most American industries. The
total number of strikes in the country jumped by 70 percent from 1940 to
1941, the year that rail unions first rejected a board’s recommendations
in a major dispute; during World War II, strikes were numerous in spite
of a no-strike pledge, the National War Labor Board settled thousands of
disputes only through the equivalent of compulsory arbitration, and
seizure was employed in over fifty disputes outside of railroads; in 1946,
the year Truman threatened to draft railroad strikers, strike idleness
accounted for a larger share of total working time in the economy than in
any other of the last fifty years, and seizure failed to prevent a coal
strike; from 1947 through 1952, Title II of the newly adopted TaftHartley Act was applied to ten national emergency disputes and was
pronounced a failure by many experts; the Wage Stabilization Board of
the early 1950’s encountered considerable opposition; and in 1952 the
Supreme Court overturned Truman’s seizure of the steel mills.
In retrospect, it seems clear that no dispute-settlement technique
could have compiled a lustrous record through that tumultuous period;
certainly none of those tried did so. That fact does not absolve the
Railway Labor Act of all blame for the dismal record of national
bargaining on the railroads during 1941-52, but it does suggest that the
failures of Section 10 have ‘been magnified when viewed in an “isolated
replay” rather than in the context of their times.
Other Problems
In addition to the obvious weaknesses of Section 10 in coping with
several major disputes during this period, some of its flaws that had been
generally overlooked in the pre-1941 years now became more
pronounced. For example, of the eighty-five railroad boards appointed
under Section 10 from 1941 through 1952, fifty-five dealt with disputes
on single carriers, both large and small, and there was still no clear
policy on which disputes, if any, were too limited in impact to warrant an
.emergency board.
14
Emergency Boards
Also, a growing number of railroad boards were appointed simply
for grievance disputes. For example, of the fourteen railroad boards
appointed in 1950 (the largest number ever named in a single year), five
dealt only with grievance disputes. 25 And although national wage
bargaining tended to follow a two-year pattern during this period, the
railroads’ splintered bargaining structure, together with their open-ended
and narrow-scope contracts, continued to provide the opportunity for
many other disputes to develop to the point of a legitimate strike vote
and the creation of yet another board.
The problem of delays in the settlement of railroad disputes also
became more noticeable:
The . . . dispute between the railroads and the trainmen
and conductors originated in March, 1949, and the
emergency board decision was not issued until fifteen
months later. . . The wage movements initiated during
the summer and fall of 1945 were not finally settled until
May, 1946. . . In late 1942 and early 1943, the railroad
unions began their movements for wage increases. Final
settlement took place in January, 1944.26
As noted before, some of this problem probably resulted from the
absence of contract expiration dates and some from the delays
deliberately built into the Railway Labor Act. For the first time, however,
some of the delay was occurring at the board level. Whereas all but one
of the eighteen boards appointed before 1941 completed their reports
within the thirty-day period specified by Section 10, and the exception
took only thirty-three days, it now became relatively common for the
boards, with the approval of the parties, to obtain extensions of the
reporting deadline. In 1949, for example, three of the eleven railroad
boards appointed took longer than two months to report and two others
required shorter extensions.
This change apparently resulted from the lack of genuine bargaining
at the pre-board levels in many national negotiations, the growing
importance of complex work rules as impasse issues, and a strong
reliance on formal procedures. As Kaufman observed, instead of board
hearings being confined to broad issues, as intended by the parties in
1926, “these hearings have become legal battles involving detailed
testimony and exhaustive cross-examination.”27 In one frequently cited
case, the board hearings extended for six weeks and produced a transcript
of 5,253 pages of testimony and 123 exhibits.28
As a byproduct of this trend, if ever there were a chance that public
opinion would be the “enforcer” of board reports—a debatable
15
The Railway Labor Act of Fifty
assumption from the outset—that chance evaporated as board reports
became increasingly technical (and increasingly numerous).
Finally, it might be noted that the airline’s initial experience with
Section 10 was something less than a triumph. Board 36 was appointed
in May 1946 to head off a pilots’ strike over pay and conditions on fourengine aircraft; hearings lasted more than a month and produced nearly
3,500 pages of testimony and argument; the report was issued only after
60 days and was then rejected by the union; and a subsequent strike was
ended by an arbitration award that provided the pilots with better terms
than Board 36 had recommended. .Ten other airline boards were
appointed during this period, all dealing with disputes on single carriers
and none with individual grievances—reflecting the different bargaining
structure and practices in this industry.
In summary, when the record of the Act’s emergency procedures
during 1941-52 is judged in the context of those turbulent years, that
record is not the unrelieved disaster often pictured, but surely the
performance of Section 10 remains poor by any reasonable standard.
The 1953-60 Period
After the turmoil of the previous period, the “Eisenhower era”
appeared relatively serene in this as in many other sectors of American
life. Only thirty emergency boards were appointed during these eight
years, an annual average of three in railroads and one in airlines,
although both the diesel fireman and flight engineer issues were coming
to a boil. Also, only one railroad board dealt with a grievance dispute,
although the Chicago River decision eliminating such disputes as a basis
for emergency boards was not handed down until 1957, 29 and in 1955
another board issued an unusually broad and constructive report that
helped to pave the way for the creation of the Presidential Railroad
Commission in 1960. 30
Table 1 shows that the Act’s strike record was not as impressive. In
fact, there were more strikes per year during this period, in both railroads
and airlines, than in 1941-52. Yet, only 5 of the 168 strikes that occurred
in these industries involved more than 10,000 workers,31 and none of the
actual or threatened strikes resulted in the type of Presidential
intervention that had become familiar in the previous period. The only
initiative taken by the Executive branch outside the emergency
procedures of the Act was the appointment of the Presidential Railroad
Commission when mediation failed to resolve the 1960 dispute over
work rules and practices, and at the time most observers considered that
to be an imaginative and useful step.
16
Emergency Boards
There were problems, of course. A majority of boards continued to
deal with single-carrier disputes, and, more ominous, strikes occurred
after the issuance of board reports in eleven of the thirty board disputes.32
Certain relationships also seemed to have become addicted to emergency
boards in the 1940’s and could not kick the habit in the more placid
1950’s.33 Indeed, in 1959 the NMB reported:
In the handling of mediation cases the following
situations constantly recur: One is the lack of sufficient
and proper direct negotiations between the parties prior
to invoking mediation. Failure to do this makes it
necessary ... to recess mediation in order that further
direct conferences may be held between the parties. . . .
Frequent recesses of this nature . . . create a climate of
procrastination which frequently is climaxed by the
creation of an emergency situation.34
On the whole, however, the Act’s emergency procedures performed
reasonably well during the 1953-60 period. What accounted for this
remarkable rebound from the dreary record of 1941-52?
One answer, of course, is that the railroad and airline industries
continued to be a part of American society, and just as certain economywide stresses had produced troubled labor relations in most American
industries in 1941-52, the easing of some of those stresses produced
improved relations in most industries, including rail and air
transportation, during the 1953-60 period. Wage and price controls were
lifted in 1953, for example, and consumer prices remained stable for
three years and then increased only moderately. As a result of these and
many other changes, there was an average of 9 percent fewer strikes in
the country each year in this period than in 1941-52, and the emergency
provisions of the Taft-Hartley Act were used in other industries only
seven times in eight years. Also, Northrup argues plausibly that “in this
period unions could not count on favorable intervention from the White
House.”35
Within the railroad industry itself, certain additional forces were at
work to reduce the level of overt conflict. As noted, the Supreme Court
issued its important Chicago River decision in 1957. In addition,
Kaufman cites two sources of union reluctance to use boards at this time:
as the carriers more frequently countered wage demands with demands
for rules revisions, unions became increasingly apprehensive that boards
would favor the carriers’ position on rules; and over union objections,
boards were increasingly accepting the argument of the carriers that
intra-industry wage patterns, once established, should be followed
17
The Railway Labor Act of Fifty
rigidly.36 For these or other reasons, the parties at this time significantly
modified their national agreements by adopting unusually long
“moratoriums,” which are this industry’s way of converting open-ended
into fixed-term agreements:
Moratorium provisions . . . specify time periods during
which labor and management agree neither to initiate nor
to process demands for modifications in rates of pay,
rules or working conditions. When moratorium
provisions are included in railroad labor agreements, the
“exposure rate”, or chance of conflict, obviously is
diminished extensively. For instance, the relative calm
in the years 1958-59 can be attributed, to a significant
degree, to 3-year wage and rule agreements which
were signed by the railroad employees and the major
trunk line rail carriers . . . and which contained
37
moratoriums extending until November 1, 1959.
Whatever the causes of the relative calm of the 1953-60 period, the
fortunes of Section 10 were about to suffer yet another drastic reversal.
The 1961-70 Period
President Nixon’s proposal in 1970 to abandon the emergency
provisions of the Railway Labor Act capped a disastrous decade for
those provisions. Since Table 1 shows that the average number of boards
and strikes in railroads and airlines was only marginally higher in this
period (4.5 boards and 24 strikes per year) than in 1953-60 (3.8 boards
and 21 strikes per year), the problems obviously lay elsewhere.
First, the scale of conflict escalated in the 1960’s. Whereas in 195360 only 5 rail and air strikes involved 10,000 or more workers, there
were 20 such stoppages in 1961-70, including the first two industrywide
strikes since 1946. 38
Second, Section 10 boards failed to resolve a significant number of
these major disputes, prompting further intervention not only by the
Executive branch but also, to an unprecedented extent, by Congress
itself. A summary of three disputes will illustrate the severity of this
problem.
In 1962, the neutral members of the Presidential Railroad
Commission made recommendations concerning the diesel fireman and
other manning and rules issues. When the carriers accepted these
recommendations and the operating unions rejected them, President
Kennedy, in a move reminiscent of President Roosevelt’s actions in the
1941 wage dispute, “withheld his support from the Railroad
18
Emergency Boards
Commission’s recommendations. Instead, he told the parties that the
Commission’s report was a basis for further negotiations. . .” 39 There
followed an impasse, union rejection of the recommendations of a
Section 10 Board (no. 154) and of a special committee appointed by the
President, a Supreme Court case, mediation by the Secretary of Labor,
strike postponements at the request first of the President and then of
congressional leaders, hearings before House and Senate committees,
and finally, only hours before the last strike deadline, the adoption of the
first compulsory arbitration law passed in peacetime on the national
level. Initiated on November 2, 1959, this dispute was finally resolved
(for a two-year period) by an arbitration award issued in November 1963
40
and upheld by the courts in April 1964
In 1966, the International Association of Machinists rejected the
recommendations of Emergency Board 166 (chaired by Senator Wayne
Morse) concerning a wage dispute with five airlines, leading to
mediation efforts by President Johnson which produced a tentative
agreement somewhat higher than that recommended by the Board and
the Administration’s own wage guideposts, then rejection of that
agreement by the union membership, a forty-three day strike,
inconclusive congressional hearings on whether that shutdown of 60
percent of the domestic trunkline air industry was a national emergency,
Senate adoption of a bill ordering the strikers back to work for up to 180
days, mediation efforts by Congressmen, and a wage settlement that was
yet a little higher than the tentative agreement and was widely interpreted
to be the first of many nails in the coffin of the Kennedy-Johnson
guidepost policy.41
And in a 1967 wage dispute between six shopcraft unions and most
of the major railroads, this bizarre sequence of events occurred: the
unions rejected the recommendations of Emergency Board 169; at the
request of President Johnson, Congress passed a special law extending
the Section 10 no-strike period for another twenty days; the President
appointed a special mediation panel, whose recommendations were
rejected by the unions; Congress passed another law extending the nostrike period, this time for another forty-seven days; at the end of that
time, the unions struck for two days and Congress passed a third law,
ordering the strikers back to work and setting up a third board to decide
the issues. (Although the Administration delicately termed this last step
“mediation to finality,” few observers could discern how it differed from
compulsory arbitration.)42
Over this period as a whole, Congress enacted a total of seven
statutes to prevent or end railroad strikes in four different disputes— the
19
The Railway Labor Act of Fifty
only times this had happened since the passage of the Adamson Act in
1916.
Other Problems
The 1960’s also saw the re-emergence of two related problems that
first surfaced in the 1941-52 period: the frequent absence of hard
bargaining in national negotiations prior to the appointment of an
emergency board, and the excessive length and complexity of many
board hearings. Professor Aaron, in a 1963 article, was one of the first to
sound the alarm:
The emergency board procedures of the Railway
Labor Act have grown increasingly formal,
cumbersome, expensive and unproductive. The ritual of
presenting the case to the board is as stylized as the
courtship dance of the great crested grebe. The board,
immobilized by hours of hearings during which prepared
testimony is literally read into the record, and smothered
by an avalanche of printed exhibits and briefs, has no
time for open, forthright mediation.. . . Genuine
collective bargaining seldom begins until after tire
board’s report and recommendations have been
released.43
Then, the members of Emergency Board 160 reported on their efforts
to expedite hearings. When they had asked the parties in this case to
estimate the time they would need to present their cases, the parties
replied that “a total of about forty-two 4-hour days of hearings would be
required”! Apparently shaken by this news, the Board suggested that
testimony be limited to those areas in which the documents and exhibits
showed a factual controversy to exist, but “the parties, long accustomed
to their own way of procedure, objected in part. . . that they had prepared
their cases in contemplation of the full hearing type of procedure.” The
board compromised by ordering six-hour hearing days and various time
limits on the parties’ presentations, but it still found its mediation
sessions with the parties to be “a more economical and efficient method
for developing the facts. . .”44
There quickly followed in 1964 what has become probably the best
known emergency board report in the Act’s history, containing the
following scathing comments:
In this case the printed exhibits alone total 75, and
when piled on top of one another came to a height of
almost 7 feet. Even a hurried reading of these exhibits
20
Emergency Boards
would require not less than 14 or 15 full days of a board
member’s time. The attorneys for both sides have had
long experience in this type of hearing, and are men of
much ability . . . and a persistent determination to
explore every facet of labor relations in the industry
since the first steam engine made its appearance. . .
This Board had the distinct impression that this was,
to a great extent, a repeat performance of an even longer
run than “My Fair Lady,” with each side knowing
exactly what the other side would present and to what
each witness would testify. The parties appear to regard
the Board as an audience to an elaborate ritual—
something like the Japanese Kabuchi Theater. Attempts
by previous Boards and by our own Board to break
through this ritual were quite unsuccessful. . . .
The pattern of long delays, in both contract
negotiations and grievance handling, as well as in
procedures before Emergency Boards, is in itself one of
the most serious irritants creating difficulties between
the parties.45
Some Explanations
In appraising the performance of Section 10 during the 1960’s, it is
again necessary to recall the context in which these procedures were
operating. Consumer prices rose slowly in the first years of the decade
and then increased significantly after the expansion of the Vietnam War;
unemployment remained a nagging problem through most of the decade;
and many groups in society militantly pressed their dissatisfaction with
“the establishment.” For these and other reasons, union members rejected
tentative agreements in many industries (as in the 1965 airline strike),
total strikes in the economy annually averaged 12 percent higher in
1961-70 than in 1953-60, “essential” government employees struck with
increasing frequency, and Presidents Kennedy and Johnson, or their
Secretaries of Labor, often intervened in critical labor disputes in one
way or another, from direct mediation to guidepost “jawboning” and
invoking the national emergency provisions of Taft-Hartley twelve times
in their eight years in office. Obviously the 1960’s were a troubled
period in more than the rail and air industries.
Also, within those two industries, certain problems of technological
change, which had been building up throughout the post-war period,
finally erupted in the 1960’s. Given the complexity and severity of those
21
The Railway Labor Act of Fifty
problems, and the multicraft structure of bargaining in both rail and air,
increased conflict was probably inevitable. On the railroads, the Diesel
Firemen Dispute was hot finally resolved until 1972, and the crew
consist issue is still a problem in many respects. On the airlines, the
Flight Engineer Dispute, peaking a little earlier, “led directly or
indirectly to the appointment of nine emergency boards” from 1958
through 1962, and four other airline boards created during that period
“dealt with anticipated or realized effects of technological change upon
wages and job security.”46
In addition, there were two glimmers of hope during that decade. For
the first time since the Act was passed, single-carrier disputes accounted
for only a minority of railroad boards: ten of thirty-one. And after 1966,
no boards at all were appointed in the airline industry, partly because
several unions signed three-year agreements in 1966 and partly because,
beginning in 1969, the new Secretary of Labor; George P. Shultz, let it
be known that the Nixon Administration would not look kindly on the
appointment of emergency boards in single-carrier disputes in either
industry—and in airlines, where single-carrier negotiations are
predominant,, this policy has meant the end of Section 10 boards in
recent years.47
The record of Section 10 in 1961-70 is therefore similar in many
ways to its record in the 1940’s: absolutely abysmal at first glance, but
perhaps rating a “minimum pass” when allowance is made for
extenuating circumstances. In one major respect, however, the record of
the 1960’s is far worse than that of the 1940’s, for the repeated resort to
ad hoc congressional action was unprecedented in the bargaining history
of the railroads, the airlines, or any other industry.48
The 1971-76 Period
There is no doubt that several significant improvements have
occurred in recent years in the administration of Section 10 and in unionmanagement relationships on the railroads. The critical question is
whether those improvements will prove to be relatively transitory or
permanent in nature.
Table 1 offers only faint evidence of the changes that have occurred.
It is true that only nine emergency boards have been appointed from
1971 through 1975 (and through the fiftieth anniversary of the Act in
May 1976), a number well below the long-term average of four per year,
and that strike activity in railroads and airlines has receded from the level
of the late 1960’s, 49 but these short-term figures can be deceptive.
22
Emergency Boards
Also, the first two boards appointed during this period saw their
recommendations rejected by the unions involved and the resort, yet
again, to congressional action to end major strikes. In a wage dispute that
began in October 1969, the Brotherhood of Railway Signalmen rejected
the recommendations of Board 179 and launched an industrywide strike
in May 1971 that was terminated after two days by emergency legislation
that prohibited further strike activity for 4½ months and awarded the
employees the wage increase recommended by the Board for the first
year (actually 1970) of a proposed 3½ -year agreement. This dispute was
eventually settled in November 1971, twenty-five months after it began,
on the pattern terms recommended by the emergency board.
The next board dealt with a dispute between the Penn Central
Railroad and the United Transportation Union (UTU) over the
company’s desire to reduce train crew size. The report of Board 180 in
May 1972 failed to resolve this dispute, as did a special mediator who
reported in November 1972. When the carrier eventually issued a rule
reducing crew size, the union struck on February 8, 1973, Congress
promptly ordered the strikers back to work for ninety days, and on May
25, 1973, nearly two years after negotiations began on this issue, the
carrier postponed indefinitely the crew reduction.
In addition, the report of the last board appointed in the 1961-70
period was producing stormy repercussions in 1971. Board 178 had
reported in November 1970 on a dispute between all the major railroads
and four unions, the UTU and three nonoperating unions. The unions
rejected the Board’s report and began an industrywide strike on
December 10, 1970, which was halted after one day by yet another ad
hoc statute in which Congress banned further strike activity until March
1, 1971 and—in a much criticized action—awarded employees the first
year’s wage increase recommended by the Board (for 1970) but did not
grant the carriers any of the work rule changes recommended by the
Board. The three nonoperating unions settled in February 1971, generally
along the lines recommended by Board 178, but the UTU announced its
intention of conducting “selective strikes” against two roads as a way of
putting pressure on the carriers for a better national contract while
avoiding the political backlash from an industrywide strike. The carriers
failed in their attempt to block this tactic in the courts, 50 and in July 1971
the UTU struck the Southern and Union Pacific roads and then eight
others on a graduated basis over a period of three weeks. The carriers
countered by instituting several work rule changes on an industrywide
basis and by invoking their strike insurance plan.51 The parties settled in
August on terms close to those recommended by Board 178.
23
The Railway Labor Act of Fifty
This rocky beginning hardly augered well for the 1971-76 period, but
important changes were occurring even in this first round of bargaining
in the 1970’s.
Promising Developments
First, during this period most national railroad agreements have been
converted, in effect, to fixed-term, no-strike agreements with common
expiration dates, and there is also some movement toward prohibiting
strike action over local issues during the period in which national
agreements are in effect. These changes have moved the bargaining
structure in railroads closer to the pattern common in other industries
and, in so doing, have reduced the opportunities for conflict (and
whipsawing).
As previously noted, clauses placing a “moratorium” on contract
changes have been used for some time in railroads to introduce stability
into open-ended agreements, but these clauses have never been used in
such a widespread and coordinated manner as in the 1970’s. The change
began in a series of negotiations extending from the late 1960’s through
1972, which were helped along by several emergency boards and ended
in all national wage agreements providing nearly identical increases and
all containing a moratorium on further wage changes until July 1, 1973
— a pattern that one board called “the best established and most
pervasive in the history of the railroad industry.” 52 In the next bargaining
round in 1973, the carriers and a joint committee representing fifteen of
the twenty standard rail unions reached agreement on all pension, wage,
and health and welfare issues for the eighteen-month period ending
December 30, 1974, and the major holdout (the Sheet Metal Workers)
eventually accepted that pattern. Then, in the third bargaining round of
the 1970’s, another attempt at coordinated bargaining failed to produce
simultaneous settlements as in 1973 but the first agreements reached in
1975 nevertheless set a pattern to which all subsequent agreements
conformed: all provide identical increases in wages (including the first
escalator clauses since 1960 in this industry), holidays, and dental
insurance, and all expire on December 31, 1977.53
In negotiating these national agreements, railroad management has
also pressed hard for this industry’s equivalent of a blanket no-strike
clause, namely, an all-inclusive moratorium that would prevent unions
from processing any Section 6 notice (the thirty-day written notice that is
the first required step in changing any railroad or airline agreement)
beyond the Act’s procedures for peacefully resolving disputes (that is,
24
Emergency Boards
beyond mediation and voluntary arbitration). One emergency board
summarized the parties’ arguments on this issue as follows:
The Carriers state that a moratorium [limited to the
subjects of a particular agreements] . . . is virtually
useless because the Unions have displayed great
ingenuity in framing Section 6 Notices which allegedly
are not covered by the terms and provisions of a newly
negotiated National Agreement. This results in the
Carriers being flooded with all sorts of Section 6
Notices, with the result that bargaining continues in an
unremitting fashion in this industry. . . .
The Unions say the only way in which employees
can correct and modify local working conditions which
are covered by local rules or practices is to serve a
Section 6 Notice upon the Carriers. If this Board were to
recommend the all-inclusive moratorium requests by the
Carriers, it would . . . be abridging and curtailing the
employees’ basic bargaining right . . . as to matters not
covered by national handling.54
Two emergency boards have recommended against the carriers’
proposal for a total moratorium and one has recommended that it be
adopted in modified form.55 Among the 1975-77 agreements currently in
effect, two covering five shopcrafts contain a total moratorium and one
applying to railway clerks contains a moratorium on all except three
subjects. Even if every national railroad agreement contained a total
moratorium, experience in other industries, such as autos, demonstrates
that there is no painless method—including blanket no-strike clauses—of
negotiating uniform national agreements and diversified local
agreements within the same company or industry.56 Continued movement
in this direction nevertheless appears to be a promising way of
introducing needed stability in railroad bargaining.
Also promising was the manner in which the parties negotiated their
national agreements in 1973 and 1975. In the former year, agreement
was reached with all but one union nearly four months before the June 30
expiration date of the previous contracts and without any outside
assistance in the form of either mediation or emergency boards. It is true
that the financial crisis then confronting the railroad retirement system
presented a compelling reason for the parties to negotiate early and
cooperatively in 1973, but there was little basis in the industry’s recent
bargaining history for assuming that such cooperative behavior would
inevitably occur. 57 And in the latest round of negotiations, the pattern25
The Railway Labor Act of Fifty
setting agreement with three unions was also hammered out by the
parties themselves, without benefit of mediators or emergency boards,
and it was concluded on January 21, 1975, only three weeks beyond the
expiration date of the previous contracts. Further, in an unprecedented
attempt to discourage the old practice of negotiating far beyond
expiration dates, the current three-year agreements explicitly provide that
negotiations may begin one full year before the expiration date of
December 31, 1977.
These developments suggest that the bargaining process on the
railroads, which appeared to be seriously if not fatally crippled in the
1960’s, is alive and kicking in the mid-1970’s. Only three emergency
boards (numbers 185,186 and 187) were appointed in disputes related to
the last two rounds of national negotiations; in each case the primary
issue was an attempt by one or a few unions to improve on the pattern
established by voluntary agreements, and in each case the boards
recommended adherence to the pattern. In fact, the proportion of national
railroad negotiations in which emergency boards were appointed was as
low in 1971-75 as in the halcyon period of 1926-40.58 And the proportion
of all Section 10 cases in which the final agreement conformed closely to
the recommendations of the board was much higher in these years than in
most of the postwar period.59
Other Improvements
Emergency board procedures also improved dramatically during this
period. Five of the nine boards appointed in 1971-75 followed an
expedited procedure that avoided most of the ritualism and legalism
so roundly condemned in the 1960’s. The chairman of three of the
boards using the expedited procedure has described it as follows:
The parties were to agree precisely on the issues in
dispute before the hearings began and these would have
to be few in number, no more than four or five. . .
Following this, the parties were each given one day of ex
parte hearings in which to put in their basic direct
testimony and such exhibits as they thought pertinent.
The Board members could ask questions but of course
there was no cross-examination. A complete transcript
was kept.
After these two days of hearings, the Board went
home and the parties exchanged exhibits and the
transcript. The parties then went over these materials for
two or three weeks. Following this, the Board again met
26
Emergency Boards
for one or two days of joint rebuttal hearings. Even
during these, however, I completely discouraged crossexamination.60
A board using this procedure may still take more than thirty days to
complete its report (in fact, three of the five boards have obtained
extensions of a week or two), but board members are obviously much
freer than before to engage in the mediation efforts that are often more
productive than formal hearings.
Also encouraging has been the progress during the early 1970’s in
resolving some long-standing manning and work rule issues. On July 19,
1972, the UTU and the National Railway Labor Conference (the
bargaining representative of all the major carriers) signed two
agreements finally settling the Diesel fireman controversy, which over
the years had been the subject of five emergency boards and two
Presidential panels. 61 In addition, in the settlement following the UTU’s
selective strikes in 1971, that union agreed to many major rule changes
recommended by Emergency Board 178 on interdivisional runs (an issue
pressed by the carriers before various emergency boards since 1946),
combining road and yard service in certain ways (an issue pursued
unsuccessfully by the carriers since the 1937 wage movement!),
interchange operations, switching limits, and other subjects.
Finally, two related developments of the 1971-75 period should be
noted. Continuing one of the few constructive trends of the 1960’s, only
a minority of the nine boards appointed in 1971-75 dealt with singlecarrier disputes: one on the Penn Central, which then carried
approximately 20 percent of all railroad freight traffic in the country, two
on the Long Island Rail Road, and one on PATH, another major
commuter line in the New York metropolitan area. Also, the pattern of
the UTU dispute in 1971—in which, after the Section 10 procedures
were exhausted, the union conducted selective strikes on ten roads, the
carriers countered with rule changes throughout the industry, and neither
the President nor Congress charged into the fray—offers an effective
method, if used sparingly, for preserving the vigor recently shown by the
bargaining process on the national level of the railroads.
Sources of Change
It is usually easier to explain the disasters than the triumphs in labor
relations, and certainly this is true of any attempt to analyze the shifting
fortunes of Section 10 over the past fifty years. There are several
plausible explanations of the Act’s poor record in major disputes during
27
The Railway Labor Act of Fifty
the 1940’s and 1960’s, but it is far less obvious why the emergency
procedures performed well in other periods.
For example, the improved performance of the 1971-76 period
cannot be simply ascribed to the temper of the times. Both
unemployment and inflation placed severe strains on all bargaining
relationships in. this period; wage and price controls often complicated
negotiations from 1971 to 1973; and total strikes in the economy
annually averaged 23 percent higher in 1971-75 than in 1961-70. Thus,
railroad bargaining tended to swim against the tide in this period, as in
1926-40.
It is also difficult to sort out cause and effect in some instances. The
resolution of many railroad manning and rule problems has been cited as
evidence of the improved performance of emergency boards and the
bargaining process in recent years, but the reverse can be argued with
equal logic: manning and rule issues are the toughest of all negotiating
problems, and when many of them were finally resolved in the early
1970’s, after twenty or thirty years of wrangling, this enabled the
bargaining process, and therefore the emergency board procedures, to
function more effectively on the easier money problems. Similarly, the
move to coordinated bargaining, common expiration dates, and broader
moratoriums is both a cause and an effect of recent changes in railroad
bargaining.
There are nevertheless certain changes that, in the opinion of most of
those interviewed for this study, have been important causes of the recent
improvement in the Act’s record. First, the several mergers of railroad
unions that took place in the late 1960’s reduced the fragmentation of the
industry’s bargaining structure and thereby minimized a primary source
of conflict. The major merger, of course, was the formation of the UTU
in 1969, reducing from five to two the number of operating unions
which, for various reasons, have been at the center of most manning and
rule disputes over the years and have often been the wage leaders as well
in the industry. At about the same time, however, there were also
mergers of two yardmasters’ organizations and of the railway clerks,
telegraphers, and patrolmen.62
On the management side, too, there has been some structural
consolidation. When the National Railway Labor Conference (NRLC)
was formed in 1963 to be the carriers’ bargaining representative in
national negotiations, its structure reflected the dominance of the three
regional carrier groups that had conducted major railroad negotiations
through most of this century. The key negotiating unit within NRLC was
a four-man committee, consisting of a nonvoting national chairman and
28
Emergency Boards
three full-time regional chairmen, representing the East, the Southeast,
and the West, each with a vote and each reporting regularly to a regional
committee. In 1971, this structure was altered by replacing the four-man
committee with one consisting of a full-time national chairman and ten
part-time carrier representatives (usually the chief industrial relations
executives of major roads), and providing all eleven members with a vote
on bargaining decisions. This change has helped to overcome the
regional divisions that often plagued carrier bargaining in the past and
has permitted the NRLC to be a more effective representative of the
industry as a whole.
Nearly all of those interviewed, however, insisted that the single
most important factor accounting for the improved record of recent years
is the wholesale change that has occurred among key negotiators on the
railroads and among those government officials (and emergency board
members) most concerned with the operation of the Railway Labor Act,
and the initiatives taken by this new “cast of characters.” It is difficult to
cite the accomplishments of these several individuals, many of whom
cooperated in this study, without appearing to be engaged in a public
relations venture, but some mention of their contributions is necessary
for an understanding of recent developments in this area.
The contribution of George P. Shultz when Secretary of Labor has
already been noted. A severe critic of the Railway Labor Act who led the
Nixon Administration’s attempt to scrap the Section 10 procedures,
Shultz, rather ironically, helped to improve the Act’s record through his
insistence within the councils of government that emergency boards
should not be appointed, particularly in single-carrier disputes, as
automatically as they sometimes seem to have been in the 1940’s and
early 1960’s. That policy change has continued until the present time
(1976), especially in airlines where there has been surprisingly little
reaction to the absence of emergency boards since 1966.
It was also Shultz who brought William J. Usery, Jr. into
government service in 1969. According to all accounts, Usery has
played a major role in resolving several critical rail and air disputes in his
various capacities as Assistant Secretary of Labor and Special Assistant
to the President for Labor-Management Relations, and, beginning in
1976, Secretary of Labor. A highly skilled mediator, Usery is given
considerable credit for encouraging the adoption of common expiration
dates in the 1969-72 series of negotiations.
Also important was the emergence in the early 1970’s of two new
leaders in the industry: Al H. Chesser, who in January 1972 assumed the
presidency of the UTU, the key operating union involved in many wage
29
The Railway Labor Act of Fifty
and rule disputes, and William Dempsey, appointed also in January 1972
as chairman of the NRLC and therefore the carriers’ chief negotiator at
the national level. The working relationship of these two officials is
apparently much better than that between their predecessors in the late
1960’s, and both Chesser and Dempsey have won praise from
knowledgeable observers for their skill in devising new approaches to
old problems.
It is also coincidence that the entire membership of the National
Mediation Board changed during the 1969-72 period. George S. Ives and
David H. Stowe brought considerable experience as arbitrators in other
industries as well as in railroads and airlines, and Kay McMurray is the
first NMB member out of the airlines (and, in fact, the first member out
of any industry, since previous NMB members had been from
government or other “neutral” backgrounds). Ives worked with Usery in
promoting the acceptance of common expiration dates on the railroads in
1969-72, and Stowe has been instrumental in improving the
administration of the NMB in several respects.
Finally, credit for expediting the procedures of recent emergency
boards belongs indirectly to many neutrals, and some of the parties’
advocates, who struggled throughout the 1960’s to improve board
procedures, but the breakthrough in the 1970’s occurred in the hearings
of Board 181 and was primarily due to the efforts of Dempsey and
Charles M. Rehmus, serving for the first time as a board chairman.
Thus, the turnover of key individuals in this bargaining relationship
appears to have been unusually high in recent years, and many of the
new decision makers have contributed significantly to the improved
record of the Section 10 procedures.
Possible Pitfalls
Even the best of partisan and neutral experts on the railroads may
soon have trouble, however, in coping with certain bargaining problems
now taking shape. What will happen, for example, if the carriers seek
further changes in work rules and manning schedules, an objective that
they chose not to pursue aggressively in the last two rounds of national
bargaining? More specifically, it is quite possible that at some point the
NRLC may attempt to lift the controversial issue of crew consist from
local to national bargaining, and that move might sorely test both the
bargaining process and the emergency procedures of the Act. Also, some
railroad unions are already chafing under the tight wage patterns of the
1970’s, and several emergency boards have been hearing the classic
arguments over this issue: the carriers contending that preservation of a
30
Emergency Boards
pattern is especially vital in an industry characterized by multiple
unionism and interunion rivalry, and one or another union,
understandably concerned with craft or institutional identity in this
crowded scene, contending that “it has the right to bargain for itself and
should not be compelled to follow slavishly what another union has
done.”63 Emergency boards usually side with the carriers on this issue,
and although Kaufman reported this to be one reason why unions did not
seek the appointment of boards in the 1950’s,64 it could just as easily be a
reason for them to reject board recommendations on their way to “self
help” techniques.
And there are other problems of pattern bargaining and common
expiration dates. Even after the mergers of the late 1960’s, there are still
eighteen unions negotiating national railroad agreements, which creates
considerable time and scheduling pressures on the parties if all
agreements expire simultaneously and the unions, for any reason, fail to
form a joint negotiating committee or, as in 1974-75, the joint committee
functions only loosely. 65
Further, if the carriers do resume their attack on certain work rules,
they will face a familiar tactical problem that becomes even more
difficult under coordinated bargaining. Since some union agreements
contain more restrictive rules than others, management may have trouble
convincing those unions giving up major rules to accept the same wage
increase being offered simultaneously to those unions giving up no rules
whatever—but if management attempts to buy out one union’s rules with
extra payments to the members of that union alone, this upsets the
intercraft wage structure and appears to penalize those unions with
“clean” contracts. Board 178 faced this problem in its 1970 case
involving the UTU, whose agreement contained most of the controversial
rules the board recommended be changed, and three nonoperating unions
with very few rules in dispute. The board resolved its dilemma by
recommending a liberal wage settlement for all four unions as the price
of relaxing or eliminating the UTU’s rules, and this recommendation,
further improved by the carriers in subsequent negotiations, became the
wage pattern (42 percent for 42 months) for the entire industry in 197173. Would the carriers and emergency boards want to follow this route
again?
Finally, if the airline industry should move toward common
expiration dates and coordinated bargaining, as some (but apparently not
many) management representatives would like to do, the increased
possibility of multicarrier strikes would naturally increase the possibility
that emergency boards might again be appointed in that industry.
31
The Railway Labor Act of Fifty
Conclusions
The emergency provisions of the Railway Labor Act have had such a
wildly varied history that both friends and foes of the Act can find ample
ammunition for their views. It has been argued here that the performance
of Section 10 has been better than it is usually portrayed: the dispute
settlement record was good in the 1926-40 and 1953-60 periods; it was
certainly poor in the 1940’s and 1960’s, but few if any alternative
policies would have looked good in those years; and the developments in
the 1971-76 period are genuinely encouraging.
Yet, critics can justifiably point to the excessive number of boards
appointed over the years—certainly far more than the Act’s framers ever
expected; the repeated failure of boards to settle critical disputes in the
1940’s and 1960’s; the evidence that often little bargaining occurred
before boards were appointed in national disputes; and the possibility
that the improvements in the 1971-76 period are simply another lull in
the storm, as the 1950’s proved to be.66
In the face of these closely balanced arguments, considerable weight
should be attached to the views of the employers and the workers’
representatives in the railroad and airline industries. Union
representatives from those industries were the chief supporters of the Act
when it was under fire in 1970-71 and continue to support it today; also,
judging from the interviews conducted for this study, railroad
management has largely abandoned its earlier desire to replace Section
10 with compulsory arbitration and airline managers are now relatively
indifferent to the issue. The acceptability of a law to the parties it
regulates is obviously not an infallible test of the public interest, but in
this case, where the historical record is mixed, that factor, added to the
promising developments since 1971, argues for a continuation of Section
10—if not for another fifty years, at least until another major testing
period.
__________
* Professor, New York State School of Industrial and Labor Relations, Cornell
University,
1. I do not mean to suggest that this reversal of scholarly opinion occurred instantly or
painlessly. Herbert R. Northrup pioneered the reappraisal of the Act in the 1940’s
(see his articles, “The Railway Labor Act and Railway Labor Disputes in Wartime,”
American Economic Review, vol. 36, June 1946, pp. 324-343, and “Emergency
Disputes Under the Railway Labor Act,” Proceedings of the First Annual Meeting,
Industrial Relations Research Association, 1948, pp. 78-88), and he has written
feelingly of the abuse that greeted his initial efforts. See Howard W. Risher, Jr., with
foreword by Northrup, “The Railway Labor Act,” Boston College Industrial and
Commercial Law, Review, vol. 12, Nov. 1970, p. 51.
32
Emergency Boards
2.
3.
4.
5.
6.
7.
8.
9.
Also see Risher, pp. 54-55, for a summary of the early praise of the Act. Later
studies critical of the Act are cited below.
“Message from President Nixon to Congress, Proposing Legislation on National
Emergency Disputes in Transportation Industry,” reprinted in Bureau of National
Affairs, Daily Labor Report, Feb. 27, 1970, no. 40, p. E-l.
See, for example, U.S. Congress, Senate, Committee on Labor and Public Welfare,
National Emergency Disputes, 1971-72: Hearings before the Subcommittee on
Labor, 92nd Cong., 1st and 2nd Sessions, 4 vols., 1971 and 1972.
John Hoerr and Stephen H. Wildstrom, “Commentary,” Business Week, Dec. 15,
1975, p. 27.
I am indebted to all of those interviewed, for without exception each was
enormously helpful, but I should particularly like to thank Michael Cimini, Director
of Research at the NMB, the author of the two excellent Bureau of Labor Statistics
bulletins (nos. 1683 and 1753) on which I have leaned so heavily, and the source of
many other facts and ideas in this paper; David H. Stowe, currently Chairman of the
NMB, and Beatrice M. Burgoon, Director of the Office of Labor-Management
Relations Services in the U.S. Department of Labor, for many hours of stimulating
debate; and Douglas M. McCabe, graduate student, for interrupting his thesis
research to conduct, interviews of several local union and management
representatives.
Jacob J. Kaufman, “Emergency Boards Under the Railway Labor Act,” Labor Law
Journal, Dec. 1958, p. 911, citing U.S. Congress, House, Committee on Interstate
and Foreign Commerce, Railroad Labor Disputes: Hearings on H.R. 7180, 69th
Cong., 1st Sess., 1926, pp. 102-103.
Section 10 of the Act does not specifically direct emergency boards to make
recommendations, but in contrast to Taft-Hartley’s Title II, neither does Section 10
specifically prohibit recommendations. The legislative history is ambiguous on this •
point (Kaufman, “Emergency Boards Under the Railway Labor Act,” p. 915), but
the very first board offered recommendations in 1928 and so have most boards
appointed since then.
There have also been occasional disputes over the legality and propriety of
mediation efforts by members of Section 10 boards, but the legislative history
supports such efforts (Kaufman, pp. 914-915) and they were undertaken by at least 7
of the first 18 boards, with 5 reporting partial or complete success. Mediation has
remained a common (though not universal) practice of boards to the present day.
In addition to the sources cited below and in Table 1, this review of the 1926-40
period drew on Jacob J. Kaufman, Collective Bargaining in the Railroad Industry,
New York: King’s Crown Press, 1954, pp. 74-89; Harry E. Jones (ed.), Railroad
Wages and Labor Relations, 1900-1946, Bureau of Information of the Eastern
Railways, 1947, pp. 87-108; and Harold M. Levinson et al., Collective Bargaining
and Technological Change in American Transportation, Evanston, Illinois: The
Transportation Center, Northwestern University, 1971, chs. 11 and 28.
Herbert R. Northrup, “The Railway Labor Act: A Critical Reappraisal,” Industrial
and Labor Relations Review, vol. 25, no. 1, Oct. 1971, p. 9. The Federal Coordinator
was a position established by the Emergency Transportation Act of 1933.
“Report of Emergency Board, In re . . . [four unions] and the Kansas City, Mexico
and Orient Railway system,” appointed April 28, 1928, in Annual Report of the
United States Board of Mediation, 1928, Washington, G.P.O., 1928, pp. 56-57.
33
The Railway Labor Act of Fifty
10. For a summary of this case, which involved the Denver and Rio Grande Western
Railroad and four operating unions, see “Labor Awards and Decisions,” Monthly
Labor Review, vol. 38, April 1934, p. 867.
11. “Report of Emergency Board, In re ... the Kansas City, Mexico and Orient Railway
system,” p. 57.
12. In Brotherhood of Railroad Trainmen v. Chicago River and Indiana Railroad Co.,
353 U.S. 30 (1957), the Supreme Court ruled that the courts can enjoin any work
stoppage involving a grievance dispute that has been submitted to the National
Railroad Adjustment Board.
13. This difference in bargaining practices is a trifle overstated. Fixed-term contracts in
other industries sometimes contain reopener clauses, permit strikes on nonarbitrable
grievances, and in other ways depart from the model described in the text. Also, it is
my impression that the fixed-term contract was not as universally accepted outside
the railroad industry in the 1926-40 period as it has subsequently become.
14. “Report of Emergency Board Appointed September 29, 1928,” in Annual Report of
the United States Board of Mediation, 1929, Washington, G.P.O., 1929, pp. 28-34;
and “Report of Emergency Board Appointed March 30, 1929,” in ibid., pp. 35-39.
15. “Report of Emergency Board, In re ... the Kansas City, Mexico and Orient Railway
system,” p. 55.
16. In addition to the mediation of the national railroad wage negotiations in 1933 and
1934 by the President and the Federal Coordinator of Transportation, certain job
security issues were dealt with in the Emergency Railroad Transportation Act of
1933, the Transportation Act of 1940, and a key ruling in 1939 by the Interstate
Commerce Commission; Presidential exhortation and the threat of unfavorable
Congressional action nudged railroad management into the 1936 Washington Job
Protection Agreement; when rail unions failed to win the so-called six-hour day in
bargaining, they repeatedly sought legislation through the 1930’s to accomplish the
same end; and in those years airline pilots’ pay was determined primarily by
Decision 83 of the National Labor Board rather than by bargaining.
17. Northrup, “The Railway Labor Act: A Critical Reappriasal,” p. 90.
18. National Mediation Board, Eighth Annual Report, Washington, G.P.O., 1942, p. 38.
19. For more detailed accounts on this period, see David M. Levinson, “Railway Labor
Act—The Record of a Decade,” Labor Law Journal, vol. 3, January 1952, pp. 1329; Kaufman, Collective Bargaining in the Railroad Industry, chs. 7-10, 12;
Northrup, “The Railway Labor Act and Railway Labor Disputes in Wartime;” and
Jones (ed.), Railroad Wages and Labor Relations, 1900-1946, ch. 8.
20. National Mediation Board, Seventeenth Annual Report, Washington, G.P.O., 1951,
p. 33.
21. Ibid.
22. Variations of these phrases appear in many annual reports of the National Mediation
Board, in passages asserting that emergency boards have been generally successful
over the years. See, for example, Fortieth Annual Report, Washington, G.P.O.,
1974, p. 37.
23. National Mediation Board, Sixteenth Annual Report, Washington, G.P.O., 1950, pp.
33 and 35.
24. In his Collective Bargaining in the Railroad Industry, pp. 154-157, Kaufman argues
that the carriers felt that their requests for post-settlement rate increases would fare
better before the ICC if labor cost increases had been recommended by a
government board, and also that as Presidential intervention became less favorable
to the unions, it became more attractive to the employers.
34
Emergency Boards
25. U.S. Bureau of Labor Statistics, Handling of Labor Disputes Under the Railway
Labor Act, 1950-69, Bulletin 1753, Washington, G.P.O., 1972, Table A-5, p. 52.
26. Kaufman, Collective Bargaining in the Railroad Industry, pp. 157 -158.
27. Kaufman, “Emergency Boards Under the Railway Labor Act,” p. 916.
28. National Mediation Board, Sixteenth Annual Report, p. 34.
29. See footnote 12.
30. In its report on a dispute involving the Order of Railway Conductors and Brakemen
and the major carriers, Emergency Board 109 included a lengthy section on the
problems of the entire wage structure of the railroads, particularly in the operating
crafts, and on the history of studies and revisions of wage structures in railroads and
other industries in the U.S. and Great Britain, and the Board then offered detailed
recommendations for establishing a commission “to review and to modernize the
wage rate structure of the operating classifications in the railroad industry.”
Significantly, one of the members of Board 109 was John T. Dunlop, long an
advocate of the importance of tackling structural problems in labor relations and
later a public member of the Presidential Railroad Commission. See National
Mediation Board, Twenty-first Annual Report, Washington, G.P.O., 1955, pp. 31-37.
When the carriers proposed a Presidential commission on manning issues in 1959,
the operating unions “rejected this idea on the basis that the Railway Labor Act
procedures were adequate to handle the issue” (Levinson et al., Collective
Bargaining and Technological Change in American Transportation, p. 196), but the
unions reversed their position in 1960 and asked that a commission be established
“in general conformity with the recommendations of Emergency Board 109.”
National Mediation Board, Twenty-seventh Annual Report, Washington, G.P.O.,
1961, pp. 17-18.
31. U.S. Bureau of Labor Statistics, “Collective Bargaining in the Railroad Industry” (a
Collective Bargaining Summary), April 1976, pp. 8-9, and “Fact Sheet on Work
Stoppages in the Airline Industry, 1946-70,” April 1971, pp. 6-7.
32. U.S. Bureau of Labor Statistics, Handling of Rail Disputes Under the Railway Labor
Act, 1950-69, Table A-5, pp. 52-53, and Airline Experience Under the Railway
Labor Act, Bulletin 1683, Washington, G.P.O., 1971, Appendix 7, pp. 40-41.
33. “For example, on March 1, 1951, several unions representing nonoperating
employees signed their first wage settlement, in 14 years, not disposed of by
arbitration or an emergency board. In their next four general wage movements, three
resulted in the appointment of an emergency board.” Also, “except for a negotiated
agreement in 1960, all of the Railway (Express Agency and the Teamsters’ national
bargaining movements, which were initiated in 1941, resulted in the creation of
emergency boards, 12 in number, the last one appointed in September 1962.” U.S.
Bureau of Labor Statistics, Handling of Rail Disputes Under the Railway Labor Act,
1950-69, p. 18.
34. National Mediation Board, Twenty-fifth Annual Report, Washington, G.P.O., 1959,
p. 27. The paragraph containing this excerpt was repeated verbatim in succeeding
annual reports through 1961, and with only the final sentence dropped, was repeated
in reports through 1970. From 1971 through 1974, the reports state that such
insufficient negotiation occurred only “occasionally” instead of “constantly”.
35. Northrup, “The Railway Labor Act: A Critical Reappraisal,” p. 11.
36. Kaufman, “Emergency Boards Under the Railway Labor Act,” pp. 913-914.
37. U.S. Bureau of Labor Statistics, Handling of Rail Disputes Under the Railway Labor
Act, 1950-69, p. 15. So far as I know, no one has traced the origin of the moratorium
provision in railroad agreements. According to Jones (Railroad Wages and Labor
35
The Railway Labor Act of Fifty
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
36
Relations, 1900-1946, Ch. 8), the controversial national wage settlement in 1941
was justified in part by “an undertaking by both parties to forego all changes in
service rules for a period of 18 months”; President Roosevelt directed that his wage
arbitration award in 1943 be effective for the duration of the war; and two of the
three national agreements in 1946 contained a moratorium on rules changes for one
year. My impression is that moratoriums were used occasionally before 1941, but
their widespread use in either national or local agreements is quite recent.
U.S. Bureau of Labor Statistics, “Collective Bargaining in the Railroad Industry,”
Table 3, and “Fact Sheet on Work Stoppages in the Airline Industry, 1946-70”,
Table 2.
Northrup, “The Railway Labor Act: A Critical Reappraisal,”, p. 11.
For a more detailed description of this dispute, see Jacob J. Kaufman, “The Railroad
Labor Dispute: A Marathon of Maneuver and Improvisation,” Industrial and Labor
Relations Review, Vol. 18, No. 2, January 1965, pp. 196-212.
For details of this dispute, see U.S. Congress, Senate, Committee on Labor and
Public Welfare, Federal Legislation to End Strikes: A Documentary History, 90th
Cong., 1st Sess., 1967, Part 2, pp. 1157-1301.
This account is drawn from my study, National Emergency Strikes, ILR Paperback
no. 7, Ithaca, N.Y., New York State School of Industrial and Labor Relations,
Cornell University, 1968, pp. 74-75.
Benjamin Aaron, “Public-Interest Disputes and Their Settlement: Observations on
the United States Experience,” Labor Law Journal, vol. 14, no. 8, August 1963, p.
747.
All quotations in this paragraph are from “Report to the President by Emergency
Board No. 160,” Washington, 1964, pp. 2-3.
“Report to the President by Emergency Boards Nos. 161,162, and 163,”
Washington, 1964, pp. 3 and 5. (Some paragraphs have been combined to save
space.) In this case, a 7-man board was appointed to report on three related disputes
involving all 11 nonoperating unions and nearly all railroads in the country.
For a fascinating debate over the charges made by Boards 161-3 and others, see
Dallas L. Jones (ed.), Proceedings of the Eighteenth Annual Meeting of the National
Academy of Arbitrators, 1965, Washington, Bureau of National Affairs, 1965, pp.
27-65. A management attorney and a union consultant both defended the Act at that
time, the former arguing that Boards 161-3 were atypical in several respects and the
latter charging that the major problem was not the Act’s procedures but the selection
as board members of neutrals who often lacked the time and knowledge of the
industry to do their jobs properly. Most of the national union and management
representatives interviewed for the present study, however, agreed that board
hearings had become excessively lengthy and formal.
With respect to the neutrals’ criticism that little bargaining occurred before
government intervention, it should be noted again, as in footnote 34, that the NMB,
in its annual reports, continued throughout the 1960’s to deplore the frequent lack of
meaningful bargaining prior to mediation.
U.S. Bureau of Labor Statistics, Airline Experience Under the Railway Labor Act, p.
6. For the best description of the manning problems in rails and airlines during this
period, see Levinson et al., Collective Bargaining and Technological Change in
American Transportation, Parts II and IV.
Secretary Shultz conveyed this new policy informally but effectively, according to
interviews with NMB officials; no written record of it was turned up in this study.
The shift away from single-carrier boards actually begain earlier in the 1960’s,
Emergency Boards
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
presumably in reaction to the growing criticism of Section 10 in many quarters, but
Shultz elevated this trend to the level of a policy directive, however informally
expressed.
Another problem that first emerged in the 1940’s—the tendency of the parties
(particularly labor) to reject, at least initially, the recommendations of emergency
boards—continued unabated through both the 1950’s and 1960’s. BLS studies have
shown that of 60 board reports over the 1950-69 period for which the parties’
responses were ascertainable, 48 were rejected by labor, 4 by the carriers, and 2 by
both parties, and a similar pattern prevailed with respect to the reports of airline
boards. U.S. Bureau of Labor Statistics, Handling of Rail Disputes Under the
Railway Labor Act, 1950-69, p. 34, and Airline Experience Under the Railway
Labor Act, pp. 23-24.
The NMB data in Table 1 show fewer airline strikes for 1971-75 than do BLS
sources, but both show a decided drop from earlier levels.
In a landmark decision which the Supreme Court declined to review, the Circuit
Court for the District of Columbia ruled that after an impasse has been reached in
national bargaining, a union may legally strike fewer than all the carriers in order to
pressure all carriers into reaching a national agreement, provided there is no
coercion of individual carriers to desert the multiemployer unit and settle on an
individual basis, and similarly the carriers have a legal right to “self, help” after
impasse has been reached. Delaivare and Hudson Railway Company, et al. v. United
Transportation Union, 450 F.2d 2603 (1971); 76 LRRM 2900, cert, denied, 403
U.S. 911; 77 LRRM 2404 (1971).
Northrup, “The Railway Labor Act: A Critical Reappraisal,” p. 15.
“Report to the President by Emergency Board No. 181,” April 30, 1972,
Washington, p. 20. The reports of Boards 174, 175, 176, 178, 179, and 181 all
played significant roles in establishing or extending wage patterns during 1969-72.
Two of the 1975-77 agreements, one covering the clerks and one covering four
shopcrafts, appear to provide more than the industry pattern, but the extra payments
in both cases become effective only on January 1, 1978, when all agreements will be
open for renegotiation.
“Report to the President by Emergency Board No. 178,” November 9, 1970,
Washington, pp. 40-41.
Boards 178 and 179 recommended the limited-scope moratoriums favored by the
unions. Board 187 recommended an all-inclusive moratorium but with the ingenious
proviso that “where impasse develops in handling of these local notices and
arbitration is proffered by the National Mediation Board, such arbitration shall be
held at the request of the [labor] Organization on any proposal not a significant cost
item to the carrier and on any reasonably related counterproposal served by the
carrier.” “Report to the President by Emergency Board No. 187,” p. 32.
E. Robert Livernash, “Special and Local Negotiations,” in John T. Dunlop and Neil
W. Chamberlain (eds.), Frontiers of Collective Bargaining, Harper and Row, New
York, 1967, pp. 31^9.
For a description of this pension crisis and its effect on the 1973 negotiations, see
National Mediation Board, Thirty-Ninth Annual Report, Washington, G.P.O., 1973,
pp. 14-15, and “Report to the President by Emergency Board No. 185,” July 2, 1974,
pp. 4-5.
According to unpublished NMB estimates, 279 national rail agreements were signed
over the 1926-75 period, and 146 (52%) of those were negotiated without the aid of
mediators, 96 (34%) were settled in mediation, and only 37 (13%) were the subject
37
The Railway Labor Act of Fifty
59.
60.
61.
62.
63.
64.
65.
66.
38
of Section 10 boards. The proportion that went to boards in specific periods was: 8%
in 1926-40, 15% in 1941-52, 11% in 1953-60, 17% in 1961-70, and 8% in 1971-75.
These figures suggest that the “narcotic effect” of Section 10 has been overrated by
those critics who implied that most national rail negotiations have gone the full route
of mediation and emergency boards, particularly in the 1940’s and 1%0’s. Also,
since there are currently about 6,000 labor agreements limited to single railroad
carriers, a large (though indeterminable) amount of local bargaining takes place
constantly in this industry, and very few of these negotiations result in Section 10
boards. On the other hand, the data in this footnote probably understate the
importance of government intervention by failing to distinguish between pattern
setting and pattern following agreements that have gone the full route of Section 10
(and sometimes beyond).
Of the Section 10 cases that have been appraised in this respect, the final settlement
conformed closely to the board’s recommendations in 6 of 7 cases in 1971-75
compared to only 19 of 62 cases in 1950-70. These appraisals were made by
Michael Cimini (see note 5) on the basis of his analysis of agreements and board
reports and his interviews with practitioners. Cimini judged a deviation between
recommendation and agreement of 2 or 3 cents per hour on a wage issue to be
relatively insignificant and relied heavily on practitioners to appraise the
significance of work rule changes. His appraisal of rail cases in 1950-69 is in U.S.
Bureau of Labor Statistics, Handling of Rail Disputes Under the Railway Labor Act,
1950-69, Table A-4; his unpublished appraisal of 1970-75 rail cases was provided to
the author; and his appraisal of all airline cases to date (also showing a high
percentage of deviations) is in U.S. Bureau of Labor Statistics, Airline Experience
Under the Railway Labor Act, Table 5.
Letter to the author from Charles M. Rehmus. The five boards using this procedure
were Boards 181, 185, and 187, all chaired by Rehmus, and Boards 183 and 186,
chaired by Alexander B. Porter.
National Mediation Board, Thirty-Eighth Annual Report, Washington, G.P.O., 1972,
p. 17.
For a good description of the bargaining problems caused by multiple unionism, see
Edward B. Shils, “Union Fragmentation: A Major Cause of Transportation Labor
Crises,” Industrial and Labor Relations Review, vol. 25, no. 1, October 1971, pp.
32-52.
“Report to the President by Emergency Board No. 181,” April 30, 1972,
Washington, p: 8. Also see the reports of Boards 185, 186, and 187.
Kaufman, “Emergency Boards under the Railway Labor Act,” p. 913.
See “Report to the President by Emergency Board No. 186,” May 23, 1975,
Washington, pp. 5-9 for an excellent description of the problems of “coordinated
bargaining and the pattern principle” in the 1974-75 rail negotiations.
An ideal analysis of Section 10 would also appraise the quality of the settlements
shaped directly or indirectly by emergency boards, but to perform such an analysis
with any rigor would require data far more precise than those gathered for this study
(and probably more precise than any that are available). Two observations may
nevertheless be of interest, although space limitations do not permit the presentation
of supporting data.
First, productivity has increased more rapidly over the postwar period in railroads
and airlines than in manufacturing and the private sector as a whole, a record better
than might be expected in view of the charges of featherbedding often leveled at the
unions involved, particularly in railroads. It is quite possible, of course, that
Emergency Boards
productivity would have increased even more rapidly in these industries if their
labor agreements had contained fewer or less restrictive work rules, and in any event
there is no way of isolating the separate effect of Section 10 boards on these work
rules.
Second, employees’ average annual compensation has increased more rapidly over
the postwar years in railroads and airlines than in manufacturing and the total private
economy (though less rapidly than in “highway transportation and warehousing”). A
case might be made that wages would have increased rapidly in airlines even in the
absence of unions, because of the rapid growth of employment and productivity and,
to a lesser extent, profits in that industry, but the wage gains of railroad workers
appear to have been due very largely to union power, since rail employment has
dropped 60 percent since 1947 and rail profits have been poor. Again, however, it is
impossible to isolate the effect of Section 10 boards on this wage record.
39
Strike Experience Under the Railway Labor Act
CHAPTER VII
STRIKE EXPERIENCE UNDER THE RAILWAY LABOR ACT
Donald E. Cullen
This chapter explores two questions that were discussed only briefly
in Chapter VI. First, how many rail and air strikes actually threaten the
economy of the nation or any region to a point justifying government
intervention beyond the provision of mediation services? The answer to
that question is critical to any evaluation of Section 10 of the Railway
Labor Act, and yet there have been surprisingly few studies of the issue.
And second, how do the strike records of the railroads and airlines
compare with the strike experience of other industries? It was noted in
Chapter VI that the number of rail and air strikes sometimes followed the
trend of strike activity in other industries and sometimes moved against
that trend, but this question can be answered more precisely by data that
measure the scope and duration of strikes as well as their incidence.
The Impact of Strikes
Public policy governing emergency labor disputes in the private
sector has long exhibited a marked ambivalence in this country. As
Aaron has noted:
Carried to its logical conclusion, the concept of
emergency disputes would seem to require that in such
cases no cessation of work should be permitted under
any circumstances. Yet neither the Railway Labor Act
nor Taft-Hartley prohibits strikes or lockouts in
emergency disputes; each merely postpones the time
when parties may resort to economic force.1
The reasons for this ambivalence seem clear. In addition to
recognizing the political power of organized labor and management,
neither of whom wanted compulsory arbitration when emergency
procedures were drafted in 1926 and 1947, Congress presumably
recognized the critical role of the strike in promoting effective bargaining
and therefore deliberately chose to limit government intervention to
methods short of a total strike ban. Yet, the vagueness of the emergencystrike concept—the uncertainty over which disputes the government
should step into even on. a limited basis—has been a source of
controversy under both the Taft-Hartley and Railway Labor Acts.
1
The Railway Labor Act at Fifty
For example, Section 2 of the RLA declares that one purpose of the
Act is “to avoid any interruption to commerce or to the operation of any
carrier engaged therein,” a goal which, if interpreted literally, would
obviously outlaw any and all strikes in the rail and air industries. On the
other hand, Section 10 is less restrictive but, as noted in Chapter VI, is
not very precise in describing an emergency dispute as one that
“threaten(s) substantially to interrupt interstate commerce to a degree
such as to deprive any section of the country of essential transportation
service.” How should this vague phrase be interpreted by a President and
his advisers? Are there many labor disputes that merit government
intervention on the railroads and airlines, or only a few, or even none at
all?
One would suppose that a nationwide railroad strike would present
the clearest example of an interruption of “essential transportation
service,” but even here the evidence should be examined. When the
Railway Labor Act was adopted in 1926, it must have seemed selfevident that any large-scale rail strike could quickly constitute an
emergency, for railroads then carried 77 percent of all intercity freight
traffic and 76 percent of all intercity nonautomobile passenger traffic. 2
By 1974, however, railroads carried only 39 percent of intercity freight
and 6 percent of intercity nonauto passenger traffic.3 These facts make
the emergency potential of railroad strikes no longer self-evident, at least
to some.
The few systematic analyses made of national rail shutdowns
nevertheless support the common belief that such strikes should still be
treated as potential national emergencies. In the early 1950’s, for
example, Bernstein studied eight industrywide strikes that had occurred
during the turbulent 1946-52 period—four in coal, three in steel, and one
on the railroads—and measured the impact of those stoppages against
three economic tests of a national emergency strike: that the strike have
an actual rather than only a potential effect; that it impose hardship rather
than inconvenience; and that its impact be national rather than local.
Bernstein concluded that only two of the eight strikes studied met those
criteria, namely, the 55-day shutdown of the basic steel industry during
the Korean War and the two-day rail stoppage in 1946, the first
industrywide strike in the history of the railroads (and the one ended as
President Truman was asking Congress for the authority to draft the
strikers).4
In spite of the short duration of the 1946 strike, Bernstein noted that
“the railroad industry differs from both coal and steel in providing a
service which cannot be stored. Hence the public impact of a rail strike is
2
Strike Experience Under the Railway Labor Act
virtually immediate,” 6 and in 1946, when railroads still carried about
two-thirds of all intercity freight and three-quarters of nonauto passenger
traffic, this instant impact resulted in widespread layoffs, mail
embargoes, the disruption of food deliveries and ocean shipping and
long-distance and commuter passenger traffic, and traffic jams in large
cities. “These reports, which could be multiplied several times over,
leave no doubt that the 1946 rail strike was a national emergency. One
can only wonder what might have happened if it had continued for
another three or four days.”6
In one of the most ambitious studies yet made of strike effects,
Chamberlain and Schilling analyzed major strikes in the same three
industries studied by Bernstein—coal, steel and railroads—but over the
slightly longer period of 1939-52. Instead of trying to define the line
between emergency strikes and all others, these authors began by
constructing a rating scale to measure the effects of any strike, large or
small. This scale called for systematic estimates of how necessary a
struck good or service was to both consumers and producers (i.e.,
employers and workers in other industries) and the extent to which those
needs could be met from inventories and from substitute goods or
services. These “urgency ratings” were then to be multiplied by the
estimated number of consumers and producers affected by a strike at a
given time, yielding a changing “total strike rating” for each day of each
strike.7
Measured by that scale, the 1946 national rail strike ranked only
eighth in severity of impact among the seventeen strikes studied by
Chamberlain and Schilling.8 That rail strike lasted only two days,
however, whereas the steel strikes with greater impact scores lasted from
28 to 53 days and the more severe coal strikes lasted from 17 to 146
days. The authors estimated that “if the 1946 (rail) strike had continued
for only a few days longer, producer effects would have increased
enormously,” although the effects on consumers (passengers) would
have decreased to some extent.9 Chamberlain and Schilling therefore
disagreed with Bernstein over the relative severity of the 1946 rail strike,
compared to other major strikes of that period, but they appeared to agree
that a national rail shutdown of even one or two weeks at the time would
have produced extremely serious effects.
Other Studies of National Rail Strikes
The next relevant study was undertaken in 1963, when the railroad
manning dispute was threatening to erupt into an industrywide strike and
the Kennedy Administration presented to Congress its appraisal of the
3
The Railway Labor Act at Fifty
probable impact of such a shutdown. Any before-the-fact estimate of
strike costs must be treated with considerable skepticism, for it is usually
easier to obtain inflated estimates that assume other factors will remain
constant during a strike than it is to forecast the extent of the ingenious
compensations that affected consumers and producers will make before,
during, and after an actual strike. Also, given the activist philosophy of
the Kennedy Administration, it is possible that ambiguities in the
relevant data might have been resolved in favor of overstating rather than
understating the expected impact of a rail strike. This 1963 analysis
nevertheless deserves examination because it appears to have been
carefully prepared from reports gathered over a two or three week period
by several Federal agencies, and because it illustrates the kind of
forecasting that a President and his advisers (and sometimes Congress)
should ideally undertake whenever they wish to decide on the emergency
potential of a strike before it begins. Following are excerpts from that
analysis:
As for the divertibility question—long distance
passengers would present no problem. But the best
estimates . . . indicate that opportunities for diverting the
45 percent or so of total goods traffic the rails now carry
would be very limited. The transportation specialists in
the Commerce Department calculate that, even after the
elapse of 30 days, only some 10 to 15 percent of total
rail freight traffic could be re-routed to other carriers.
The limited possibilities for substitution are partly a
matter of total capacity, but they also reflect the fact that
there are a number of major commodities for which
truck transportation just isn’t feasible . . . [such as coal
and other minerals, several liquid chemicals], heavier
steel products, and . . . that substantial fraction of the
West Coast fruit and vegetable crop for which there
would not be refrigerated capacity. . . .
A strike of a very few days would not in itself be a catastrophe. Its
most visible effect would be to leave nearly half a million commuters . . .
without the means for getting to and from work. Moreover, some items
of goods would quickly be in short supply in New York City. And some
industries that ship by rail—particularly coal and other mining and some
steel and heavy chemicals—would close down immediately. But,
generally, rail-dependent inventories are ample enough so that the
economy could operate almost normally up to a week or so—except for
4
Strike Experience Under the Railway Labor Act
the speculative price increases that might be triggered if there were
widespread doubt about the early termination of the strike. . . .
Beyond the one-week mark, the rundown of inventories would begin
to generate a rapidly interacting network of bottlenecks that would push
up the economic costs of the strike at an accelerating pace. . . . Our
estimate is that on the 30th day of a general rail strike the annual rate of
the Gross National Product. . . would be down by roughly $75 billion, or
about 13 percent, from the pre-strike level. . . . [If the strike ended on the
30th day], our guess is that it would take at least another month to fill up
the supply lines and get the economy functioning again in more or less
normal fashion. If so, a 30-day strike could be expected to reduce the
GNP for the 3-month period dating from the beginning of the strike by
something like $25 billion at an annual rate. This . . . would be the
largest quarter-to-quarter drop in the absolute dollar volume of GNP on
record, bar none.
Meanwhile, the losses in unemployment would be enormous. Beside
the 700,000 workers in the railroads themselves, we estimate that at least
6 million others would be laid off by the ramifications of a 30-day
strike.10
Finally, when Congress adopted ad hoc legislation to end a two-day
national rail shutdown in 1971, one provision of the statute required the
Secretaries of Labor and Transportation to report to Congress on the
impact of the strike on the economy. The ensuing report was consistent
with most of the other studies of national rail strikes. On the one hand,
since the 1971 stoppage lasted only forty hours, it had only a limited
impact on passenger traffic and other industries. About 360,000
commuters were directly affected. Numerous traffic jams occurred in
several cities, but many commuters formed car pools or left work earlier
or later than usual, and some stayed home one or both days of the
strike—measures which the report termed “adequate” to cope with such a
short strike—and full commuter service was resumed almost
immediately after the strike ended. Among other industries, agriculture
was hardest hit as’ the producers of fresh fruits and vegetables suffered
an estimated minimum of $3 million in unrecoverable losses. The strike
also caused some layoffs and part-time work in other industries,
particularly in auto manufacturing which is hit very quickly and hard by
a national rail strike because at any given time much of that industry’s
inventory is on the move among plants; a large part of these production
and income losses were nevertheless made up after the strike through
overtime work and supplementary unemployment benefits. Also,
disruptions to military traffic were minimal.11
5
The Railway Labor Act at Fifty
On the other hand, government analysts were told repeatedly by
industry sources that a continuation of this forty-hour strike in 1971
would have had serious effects, after only another day or two in glass and
meat packing, or another week or two in chemicals, grain, coal, steel,
autos, and lumber:
Thus a continued total disruption of rail service would
have led to a rapid decline of production, sales, and
wages. Shippers’ delaying actions would have given way
to maximum diversion. However, since limitations in
both ability and capacity [of other modes of
transportation] would prevent the diversion of . . . [much
of the] 40 percent of all intercity traffic [then carried by
railroads], shutdowns would proceed at a geometric rate.
. . . Projections of a 5 to 6 percent decline in Gross
National Product after a two week nationwide rail strike
do not appear inconsistent with any information obtained
in preparation of this report.12
In summary, the available evidence indicates that a national rail
strike today could still have a devastating impact on the economy after
only a short time, perhaps in as little time as one to two weeks, even
though railroads no longer dominate the transportation sector as they did
in 1926: It is true that the evidence is speculative, since Federal
intervention has prevented any of the four national rail strikes occurring
since 1926 from continuing for more than two days. It is also true that
studies of strikes that did last for long periods in steel and longshoring
have shown that the economy is less vulnerable to stoppages in basic
industries than many supporters of strike controls recognize.13 Further,
no one claims that the impact of a national rail strike on intercity
passengers constitutes more than a minor irritation today, and it is
debatable whether the effects of such a strike on commuter service adds
up to an “emergency” or only a “severe inconvenience.”14
Yet, the railroads’ 39 percent share of all intercity freight traffic in
1974, although far below their share in 1926, was still much larger than
the share hauled by any other mode of transportation in 1974, when
trucks and oil pipelines each accounted for only 23 percent of intercity
freight and water transportation for only about 15 percent.15 That fact,
coupled with the inability of other transportation modes to handle certain
types of bulk freight now carried by railroads, is the key to understanding
the continuing emergency potential in a national rail strike.
6
Strike Experience Under the Railway Labor Act
The Impact of Regional Rail Strikes
It will be recalled that Section 10 authorizes intervention in all
disputes that might “deprive any section of the country of essential
transportation service” (emphasis added). The regional orientation of
Section 10 reflects the importance of railroads in every section of the
country in 1926, and also the fact that there was then no bargaining (or
strikes) conducted beyond the regional level in that industry.
As might be expected, however, it is even more difficult to
generalize about the impact of regional than of national rail strikes. This
is partly because there have been fewer studies of regional strikes. More
importantly, there is enormous variability in the scope of regional strikes.
As noted in Chapter VI, the very first Section 10 board, appointed in
1928, dealt with a dispute on a single road with only 737 miles of track,
and the second board then dealt with a dispute involving all the western
roads, nearly fifty in number. That range in the size of regional disputes
has persisted over most of the period since 1926. Further, even the
number of carriers involved is not always a reliable guide to the size of a
dispute, since carriers obviously vary greatly in length of trackage,
density of population served, and the like. In the early 1970’s, for
example, single-carrier disputes in which Section 10 boards were
appointed included one involving the Penn Central, with 83,000
employees and more than 20,000 miles of track in 16 states and Canada,
and one involving the Port Authority Trans-Hudson (PATH) commuter
road, which employed 1,100 workers on a line extending all of 13.9
miles between northern New Jersey and Manhattan.
The effect of this variability in dispute size was documented by
Chamberlain and Schilling, who included two regional rail strikes, each
lasting about one week, in their study of the impact of seventeen major
strikes in the 1939-52 period. One of these regional strikes involved
175,000 workers on five roads and the other involved 70,000 workers
scattered over fifty roads. By. Chamberlain and Schilling’s measure, the
second strike had over twice the impact of the first and, in fact, had a
greater impact than the two-day nationwide rail strike in 1946, in which
350,000 workers were involved. The authors concluded:
. . . it is obvious that neither duration alone nor
percentage of capacity shut down is a reliable indicator
of a [rail] strike’s severity. The two-day nationwide
stoppage of 1946 had 70 percent more impact than the
seven-day partial strike of 1950, which affected five
major lines, but about two-thirds the effects of the partial
strike of 1951, also rated as of the seventh day. . . .
7
The Railway Labor Act at Fifty
The percentage of total freight halted by the 1951
strike was greater than [the 24 percent halted] in the
1950 strike, perhaps double, but its effects on direct
producer-users (and on suppliers of such producers)
were more than five times those of the less extensive
strike. For these groups . . ., the impact of a rail strike
appears to increase more than proportionately to the
increase in the amount of traffic halted. 16
The only other published study of the impact of a regional rail strike
was that conducted by the U.S. Department of Transportation on the
effects of the “rolling” selective strike by the United Transportation
17
Union (UTU) in 1971. The union struck the Union Pacific and
Southern roads on July 16, the Norfolk and Western and Southern Pacific
roads on July 24, and the Atchison, Topeka, and Santa Fe and five
smaller roads on July 30. Agreement was reached on August 2, by which
time 23 percent of the country’s rail trackage was idle. Clearly this is
another strike unique in scope and therefore difficult to use as a basis for
generalization. The major findings of the DOT study are nevertheless of
interest:
A large portion of the decline in rail carloads [caused by
the strike] was either moved by motor carrier, stockpiled
by the producer, or will be accounted for by increased
production at a later time. Those products for which this
does not necessarily hold are the perishable products of
agriculture which either must be sold at reduced prices,
allowed to deteriorate, or moved to market by more
expensive methods.
In light of these factors, the nonrecoverable economic
loss to the Nation’s economy as a result of the strike
appears to have been approximately $27 million per day
at the height of the strike (slightly less than 1 percent of
daily Gross National Product). This estimate is based on
an assumed employment impact equivalent to 200,000
people with no purchasing power and deterioration of
perishable commodities at the rate of $4 million per day
plus the secondary impact resulting from the
“multiplier” effect. The majority of this impact was felt
in. . . (six Midwest and Western states) because of the
extent of the loss of their rail service and the dependence
of their economies on the production of perishable
8
Strike Experience Under the Railway Labor Act
commodities such as fresh fruit and vegetables and grain
...
The impact of the strike increased with both the passage
of time and the spread of the strike to additional
railroads. Had the strike continued through the end of the
third week . . . [during which it was scheduled to spread
to five more carriers, strike losses] would have been
equal to approximately 2 percent of the daily Gross
National Product or nearly $70 million per day.18
The Chamberlain-Schilling and DOT studies thus offer at least
qualified support to the conclusion that some railroad strikes of less than
industrywide scope can still have an impact on particular sections of the
country, or even the entire economy, sufficient to justify government
intervention in the form of a Section 10 board. The evidence also
suggests, however, that such intervention should be undertaken
cautiously. The regional strikes studied by Chamberlain and Schilling
occurred in 1950 and 1951, when railroads were more dominant than
today in both freight and passenger traffic. Also, the UTU’s selective
strike in 1971 occurred after the exhaustion of Section 10 procedures and
appeared to have a salutary effect on bargaining, in that agreement was
reached after two weeks without further government intervention and
apparently without excessive damage to any section of the country—
although some might quarrel with that appraisal of the strike’s impact.
The fact that there is overcapacity in the railroad industry also has
important implications for strike control policy. The interest in railroad
mergers in recent years is in part caused by the fact that duplicate rail
facilities exist between a number of major cities. For example, “there are
seven railroads between Chicago and Kansas City, Mo., and five
between Chicago and Omaha, all scrapping for traffic that would support
half that number at best.” 19 A strike limited to two or three carriers in an
area such as that would presumably pose a less serious threat to the
public than a strike in a less competitive area.
It is therefore encouraging to note the extent to which Section 10
boards have been restricted in recent years to national disputes, in which
the case for Federal intervention is clearly strongest. In retrospect, the
change became particularly noticeable in 1964, when six rail boards were
appointed and all were assigned to national disputes. From that year
through 1975, over 180 rail strikes occurred but only 26 rail boards were
appointed. Of those, 18 dealt with national disputes. With respect to the 8
regional or sectional boards, only one dealt with a multicarrier dispute.
The other 7 were assigned to single-carrier disputes—5 on the politically
9
The Railway Labor Act at Fifty
sensitive Long Island and PATH commuter roads, one on the Penn
Central, then the largest carrier in the country, and one on the Atchison,
Topeka, and Santa Fe.20
The major reasons for this and other recent improvements in the
record of Section 10 have been described in Chapter VI, but two
additional points deserve mention. First, although national bargaining has
taken place on the railroads in various forms since 1931, the final
acknowledgement of its inevitability did not occur until 1963, when the
employers formed the National Railway Labor Conference as their
bargaining representative in industrywide negotiations. This step may
have contributed to the increased focus of government intervention since
1963 on national disputes.
On the other hand, it seems clear that the primary reason why there
has continued to be an average of at least two Section 10 boards year in
and year out, in spite of their being restricted largely to national rail
disputes and all the other recent changes described in Chapter VI, lies in
the fact that in 1976 there were still eighteen unions with national
agreements on the railroads. Given the industry tradition that all unions
respect one another’s picket lines, each of these eighteen unions is
capable of precipitating an industrywide shutdown that can reasonably be
termed a potential national emergency. In 1971, for example, a strike by
one union of only 10,000 members, the Brotherhood of Railroad
Signalmen, shut down the entire industry which then employed 544,000
workers. Unless coordinated bargaining is accepted by all the rail unions,
or the number of those unions is greatly reduced through further mergers,
it is difficult to see how the frequency of Federal intervention in rail
disputes can be reduced much below the level of recent years, whether
that intervention takes the form of Section 10 boards or some other type
of strike control.
The Impact of Airline Strikes
Strikes in the air transport industry, on the other hand, have come to
be viewed as possessing very little, if any, emergency potential.
Although by 1974 airlines accounted for 76 percent of intercity
passenger traffic on common carriers, their share of total intercity
passenger traffic, including that by private automobiles, was still only 10
percent, and in the same year their ‘share of intercity freight traffic was a
minuscule 0.2 percent.21 Thus, reasonable grounds exist for questioning
whether the impact of even an industrywide air strike would justify
government intervention beyond mediation—and the case for
intervention practically vanishes in light of the facts that all airline
10
Strike Experience Under the Railway Labor Act
negotiations and strikes up to 1976 have been less than industrywide in
scope. In fact, only three strikes in the history of airline bargaining have
encompassed more than a single carrier, and the largest of those three
involved only seven carriers and 43 percent of industry employment.22
There nevertheless was little challenge to government intervention in
airline disputes until 1966, when the International Association of
Machinists struck five major carriers in a dispute described in Chapters
IV and VI. Since the strike began after the union had rejected the
recommendations of a Section 10 board, the question arose whether the
impact of the stoppage was severe enough to warrant ad hoc legislation
of the kind frequently adopted to halt rail strikes in the 1960’s. The
struck airlines normally handled 60 percent of all domestic airline
passenger traffic. Various government officials testified that about
150,000 passengers were grounded each day of the strike, over 70 cities
were left without any trunkline service, mail was often delayed for one
and sometimes two days, some hotels and resort areas were “seriously
affected,” gross revenues for the entire transportation sector were
reduced by an estimated $1 million per day (the struck airlines lost $7
million per day but the nonstruck carriers and other modes of
transportation picked up $6 million per day), and losses to other
industries also totaled an estimated $1 million per day.23
The president of the IAM argued persuasively that the strike was not
harmful to any national interests:
In the United States today there are 11 trunk carriers,
of which only 5 are on strike. . . . There are 13 local or
feeder lines which service every city . . . which the
struck carriers normally service. In addition, there are
three all-cargo domestic carriers still operating . . . [and]
general aviation, including the huge fleet of corporate
executive planes, has not been hampered by the strike . .
.
Putting things into perspective, only 3½ percent of
all intercity passenger travelers [including the 90 percent
using automobiles] are inconvenienced by this dispute. .
..
It is interesting to note that the number of passengers
affected by the recent bus strike against Western
Greyhound was . . . about the same [as the number]
affected by the airline strike. Yet, there was never any
hue and cry to suspend the right to strike because of the
Greyhound bus strike. This fact has led some observers
11
The Railway Labor Act at Fifty
to suggest that the pressures to end the airline strike have
a direct relationship to the higher income level of airline
passengers. 24
The Johnson administration adopted the curious position that this
strike was certainly depriving sections of the country of essential
transportation service, which is why a Section 10 board had been
appointed in the first place, and that it was also having a “serious,
substantial, adverse impact on the national interest”—and yet the strike
did not constitute a “national emergency” because it was not impairing
national health, safety, or defense, and therefore no special legislation
was needed to end the stoppage.25
A majority of the Senate disagreed and adopted a resolution ordering
the strikers back to work for up to 180 days, but the Senators too had
trouble with the logic and semantics of this situation. In deference to the
administration’s position, the Senate resolution avoided the term
“national emergency” and instead declared that the IAM strike “threatens
essential transportation services of the Nation,” which was the basis for
invoking Section 10, and then added, in a splendid burst of redundancy,
that “it is essential to the national interest, including the national health,
safety, and defense, that essential transportation services be
maintained.”26 This resolution was never brought to a vote in the House,
and the strike eventually ended after forty-three days.
In spite of the Senate resolution to the contrary, the case was clearly
very weak for congressional intervention in the five-carrier strike in
1966. If the impact of that strike, one of the two most severe in airline
history, did not constitute an obvious national emergency after fortythree days, the question naturally arises whether the typical single-carrier
air strike ever meets the Section 10 criterion of depriving some section of
the country of essential transportation service. Since 1966, the answer to
that question has been “no” in three administrations; one more airline
board was appointed a few weeks after the IAM strike ended, but no
others have been appointed up to mid-1976.27
In summary, if judged solely by the criterion of protecting the public
against emergency strikes, including those defined as interrupting
“essential transportation service,” there was probably no justification for
including air transportation under the Railway Labor Act in 1936 or for
the subsequent appointment of thirty-three Section 10 boards in airline
disputes. The recognition of this fact was slow in coming but is
nevertheless another major credit in the recent record of Section 10.
12
Strike Experience Under the Railway Labor Act
Interindustry Comparisons
A few other aspects of the strike experience in the railroad and
airline industries deserve examination. First, how does total strike
activity in these industries compare with strike activity in other
industries? Strictly speaking, such a comparison is not a direct test of the
effectiveness of the dispute-settlement procedures of the Railway Labor
Act, which are aimed primarily at averting only “emergency” rail and air
strikes. Also, the ideal comparison would be with industries that are
similar to railroads and airlines in all respects except applicable strike
controls, or at least a comparison that controlled for interindustry
differences in the major sources of labor conflict, but no such ambitious
analysis has been attempted here.
The data presented in Table 1 are nevertheless suggestive in certain
respects. Probably the single best measure of interindustry strike
differences is the proportion of total working time lost through strikes,
because it adjusts for industry size while also reflecting differences in the
scope and duration of strikes. By that measure, Table 1 shows, strike
activity over the 1946-72 period averaged about one-third less in
railroads than in the average American industry (.21 percent versus .33
percent of total working time lost), and railroads also show the lowest
average rank (1.9) when strike activity over this period is compared
among railroads, airlines, and the four industry divisions that are the
most strongly unionized in the economy.28 On the other hand, strike
losses in railroads were above the all-industry average in ten of the
twenty-seven years for which data are available, with eight of those highconflict years occurring, not surprisingly, in the 1960-71 period.
13
The Railway Labor Act at Fifty
Table 1.
Year
1946 . .
1947 . .
1948 . .
1949 . .
1950 . .
1951 . .
1952 . .
1953 . .
1954 . .
1955 . .
1956 . .
1957 . .
1958 . .
1959 . .
1960 . .
1961 . .
14
Percent of Total Working Time Lost Due to Work Stoppages in Selected Industry Classifications,
1946-72.a
Transportation,
All
communication,
Indusand other public
tries
Railroads
Airlines
utilities
Manufacturing
Construction
Mining
Percent Percent Rank Percent Rank Percent Rank Percent Rank Percent Rank Percent Rank
1.43
.20
1
N.A.c
.94
3
2.42
4
.40
2
10.35
5
.41
.06
2
.05
1
1.19
6
.43
3
.66
4
1.12
5
.37
.02
1
.57
5
.34
3
.46
4
.29
2
4.51
6
.59
.31
3
.01
1
.25
2
.73
5
.53
4
8.39
6
.44
.41
3
.20
1
.25
2
.66
5
.44
4
4.37
6
.26
.13
2
.10
1
.17
3
.43
5
.18
4
.55
6
.57
.07
2
.03
1
.39
3
1.03
4½
1.03
4½
1.92
6
.26
.06
1
.11
2
.22
3
.36
4
1.22
6
.40
5
.21
.01
1
.13
2
.14
3
.33
4
.71
6
.44
5
.26
.34
3
.10
1
.47
5
.45
4
.28
2
.57
6
.29
.02
1
.22
3
.11
2
.63
5
.35
4
.65
6
.14
.17
2
.18
3
.19
4
.22
5
.51
6
.11
1
.22
.01b
1
2.57
6
.23
3
.39
4
.71
5
.16
2
.61
.03
2
.02
1
.19
3
1.34
5
.58
4
3.26
6
.17
.34
3
.77
6
.18
1
.27
2
.63
5
.41
4
.14
.08
1
.77
6
.17
2
.24
4
.50
5
.18
3
Strike Experience Under the Railway Labor Act
1962 . .
1963 . .
1964 . .
1965 . .
1966 . .
1967 . .
1968 . .
1969 . .
1970 . .
1971 . .
1972 . .
Mean
.16
.13
.18
.18
.19
.30
.28
.24
.37
.26
.15
.33
.19
.24
.31
.23
.20
.39
.19
.07
.31
1.21
.03
.21
1
2½
3
1
1
3
2
1
1
5
1
1.9
2.03
.01
.06
.27
3.42
.04
.01
.71
2.11
.27
.93
.60
6
1
1
2½
6
1
1
4
6
1
6
2.9
.25
.25
.19
.29
.32
.32
.84
.36
.63
1.18
.29
.38
3
4½
2
4
3
2
4
2
3
4
3
3.1
.24
.24
.35
.31
.28
.57
.47
.47
.77
.39
.26
.55
2
2½
4½
5
2
4
3
3
4
2
2
3.8
.60
.25
.35
.57
.73
.62
1.05
1.19
1.79
.83
.88
.66
4½
4½
4½
6
5
5
5
6
5
3
5
4.4
.60
.30
.49
.27
.50
1.95
1.60
.72
.54
3.23
.47
1.78
4½
6
6
2½
4
6
6
5
2
6
4
4.8
a.
The measure of time lost is calculated by dividing total man-days of idleness resulting from work stoppages (the number of workers in an
industry—strikers and nonstrikers—made idle in those establishments directly involved in strikes, multiplied by the number of days of
strike idleness) by estimated total working time (the average number of workers employed in the industry, multiplied by the number of
days worked by most employees in that industry). Holidays and other days not normally worked are omitted from this calculation.
Industries are ranked by strike losses in each year, with “1” representing the industry with the lowest percentage of time lost in the year
indicated.
b. Actually less than 0.005 percent.
c. Not available.
SOURCES:
Railroad data for 1946-49 from National Mediation Board, Sixteenth Annual Report, Washington, G.P.O., 1950, p. 6, citing “recent
tabulations presented to the Senate Committee on Labor and Public Welfare,” apparently by the U.S. Bureau of Labor Statistics; data for
1950-72 from U.S.B.L.S., “Collective Bargaining in the Railroad Industry,” April 1976, p. 5. Airline data for 1947-69 from U.S.B.L.S.,
“Fact Sheet on Work Stoppages in the Airline Industry, 1946-70,” April 1971, p. 5; data for 1970-72 from B.L.S. files. All other data from
B.L.S. annual reports entitled Analysis of Work Stoppages.
15
The Railway Labor Act at Fifty
It is rather surprising, however, to observe the extent to which strike
activity in airlines has exceeded that in railroads (.60 percent versus .21
percent of total working time lost over the postwar period), in spite of the
predominance of single-carrier strikes in airlines.29 Also, strike losses in
airlines were above the all-industry average in nearly half of the years for
which data are available (twelve of twenty-six, most in the 1960-72
span), and in fact strike losses were higher in airlines than in
manufacturing over the period as a whole (.60 percent versus .55 percent
of working time)—although the airlines’ average rank among the
industries studied (2.9) was second only to the railroads’.30
The data in Table 1 therefore suggest that Sections 5 and 10 of the
Railway Labor Act may have moderated strike activity in the railroad
industry but have had little if any effect on strike activity in air transport.
Given the marked difference in the emergency potential of rail and air
strikes, this possible difference in the effectiveness of the emergency
procedures of the Act does not constitute a cause of particular concern.
Two other interindustry comparisons are worth a brief mention. First,
the emergency procedures of the Railway Labor and Taft-Hartley Acts
have compiled roughly equal records of compliance by the parties. From
1947 through 1972, 80-day injunctions were issued under Title II of TaftHartley in 29 cases, with the following effect on actual or threatened
strikes:
Only 1 of 23 strikes in progress continued in defiance of
the injunction. Twenty-two were ended almost
immediately.
In 2 cases, strikes were ended voluntarily before an
injunction was secured.
In the other 4 cases, threatened strikes were called
off. 31
In comparison, emergency boards were appointed under Section 10
of the RLA in 187 cases from 1934 through 1975, with the following
results:
Five of 13 strikes in progress continued after the
appointment of a board, in violation of Section 10. Three
of those illegal strikes lasted for 7 to 10 days and the
other 2 continued throughout the tenure of the boards
involved. Only 1 of these 5 strikes occurred after 1950.
In 3 cases, strikes began after the appointment of a
board—1 lasting 6 hours, 1 for 3 days, and 1 for 6 days.
None of these strikes occurred after 1961.
16
Strike Experience Under the Railway Labor Act
In the remaining 178 cases, no strikes occurred during
the status quo period mandated by Section 10.32
Both emergency procedures therefore achieved compliance “scores”
of 95 percent or better. Section 10’s compliance record is particularly
impressive in light of the large number of cases involved and the nearvoluntary nature of Section 10, which prescribes no injunction or
penalties for noncompliance. 33
Second, the Railway Labor Act has a better record than Taft-Hartley
with respect to the proportion of cases in which strikes have occurred
after the exhaustion of their emergency procedures. Specifically, rail or
air strikes have occurred after the statutory waiting period (i.e., after 30
days had elapsed following a board’s report) in 21 percent of all Section
10 cases, compared with 31 percent of Taft-Hartley cases in which
strikes have occurred after the expiration of an 80-day injunction.34
These figures probably understate the difference between the two laws
on this score. As indicated above, strikes were already in progress in
most Taft-Hartley cases (23 of 29) before an injunction was issued. It is
usually difficult for a union again to call out its members on strike after
they have once returned to work, but that has happened in many of the
Title II cases under Taft-Hartley. In contrast, since very few rail or air
strikes were in progress before a Section 10 board was appointed (only
13 of 187 cases), it was presumably easier (or even more necessary
politically) for a union to call a strike after the exhaustion of the RLA’s
emergency procedures.
Conclusions
It does indeed appear anomalous to retain laws that are designed to
control “emergency strikes” and yet have permitted legal stoppages to
occur in 20 to 30 percent of all disputes in which they have been applied.
It has been argued here, however, that there are good reasons for
stopping short of an outright ban on strikes even in potentially critical
disputes—provided, of course, that the less stringent controls perform
reasonably well.
The evidence in this chapter, and in Chapter VI, demonstrates that
some form of government intervention beyond mediation is warranted in
national rail strikes, and perhaps in some regional rail strikes as well.
Section 10 of the Railway Labor Act performed reasonably well during
some periods in the past, but it was very probably used in several rail
disputes that did not genuinely threaten “essential transportation” even
on a regional level. Finally, the record of Section 10 in rail disputes in
recent years has been generally excellent, as emergency boards have
17
The Railway Labor Act at Fifty
been limited primarily to those national disputes in which a strike of even
two or three weeks’ duration could have a serious impact. On the other
hand, the evidence also indicates that there probably has never been a
strike in air transportation that merited government intervention beyond
mediation, and the refusal of successive administrations to appoint any
airline boards since 1966 has been another encouraging development in
recent years.
For the reasons noted in Chapter VI, this promising record of Section
10 in recent years could end at nearly any time. It would require only one
or two national rail stoppages, occurring after the exhaustion of Section
10 procedures, to lead to renewed demands for strike controls with a
greater measure of finality. Such demands cannot always be dismissed as
irrational or anti-labor, for national rail strikes do pose a serious
economic threat, but at least for the present that threat is being handled
very well by the significant improvements that have been made both in
the administration of Section 10 and in the bargaining relationship of
railroad labor and management.
__________
1. Benjamin Aaron, “Emergency Dispute Settlement,” in Southern Legal Foundation,
Labor Law Developments, 1967, Matthew Bender and Co., Albany, N.Y., 1967 (and
University of California at Los Angeles Reprint No. 172), p. 188. Note, on the other
hand, that until recently no such ambivalence marked public policy governing
strikes in the public sector; all such strikes were banned through statutory or
common law because, among other reasons, most or all such strikes were assumed
to be emergencies.
© Donald E. Cullen 1977
2. U.S. Bureau of Labor Statistics, Handling of Labor Disputes under the Railway
Labor Act, 1960-69, Bulletin 1753, Washington, GPO, 1972, p. 20. Traffic is
measured in terms of millions of freight-ton miles and millions of nonautomobile
passenger miles.
3. Association of American Railroads, Yearbook of Railroad Facts, 1975 edition,
Washington, 1975, p. 36. If private automobile traffic is included in the measure of
intercity passenger traffic, the railroads’ share dropped from 16 percent in 1929 to
less than one percent in 1974.
4. Irving Bernstein, “The Economic Impact of Strikes in Key Industries,” in
Emergency Disputes and National Policy, Bernstein, Harold L. Enarson, and R. W.
Fleming, eds., New York, Harper and Brothers, 1955, pp. 24-45, and Bernstein and
Hugh G. Lovell, “Are Coal Strikes National Emergencies?” Industrial and Labor
Relations Review, vol. 6, no. 3, April 1953, pp. 352-367.
5. Bernstein, “The Economic Impact of Strikes in Key Industries,” p. 42. In fact, some
effects of a rail strike are often felt even before the stoppage officially begins. For a
few days before a strike deadline, rail carriers will often refuse to ship perishables or
other goods that might be caught in transit by the impending strike.
6. Ibid., p. 44.
18
Strike Experience Under the Railway Labor Act
7.
8.
9.
10.
11.
12.
13.
14.
Neil W. Chamberlain and Jane M. Schilling, The Impact of Strikes, New York,
Harper and Brothers, 1954, chs. 2 and 3.
Ibid., p. 241.
Ibid., p. 185. As will be discussed later in this paper, Chamberlain and Schilling also
studied the effects of two regional, one-week rail strikes, one of which produced a
higher impact score than the 1946 national shutdown.
“Statement of John P. Lewis, Member of the Council of Economic Advisers,” in
U.S. Congress, Senate, Committee on Commerce, Hearings on S.J. Res. 102, 88th
Cong., 1st Sess., 1963, pp. 418-420.
Lewis also noted in passing that “the operating brotherhoods proposed that
commuter trains and also goods trains that carry medical and other supplies that the
President designates as essential continue to operate, with the workers’ wages and
carriers’ revenues being turned over to charity.” Rail unions have made similar
offers in an effort to head off government intervention in other national disputes, and
these offers have invariably been termed impractical by the carriers and have not
been pursued by the government. I know of no detailed analysis of the feasibility of
such partial operation of the railroads (even though that was one of the options in
President Nixon’s transportation labor proposal in 1970), but it is significant that
during the 1967 shopcraft dispute, according to union officials, the Secretary of
Transportation asserted that the railroads would then have lost more money
operating at 10 percent of capacity (at an estimated loss of $39 million a week) than
from a total shutdown (costing $31 million a week), and would also have lost $13
million a week at 50 percent of capacity. Bureau of National Affairs, Daily Labor
Report, September 21, 1967, No. 184, p. D-4.
U.S. Department of Labor-U.S. Department of Transportation, Report to Congress:
Effect of the May 17-18, 1971 Signalmen’s Strike against the Nation’s Railroads,
Washington, 1971 (processed), pp. 25-58.
Ibid., p. 60.
U.S. Department of Labor, Collective Bargaining in the Basic Steel Industry,
Washington, GPO, 1961, and U.S. Department of Labor, Impact of Longshore
Strikes on the National Economy, Washington, 1970 (processed).
At the time of the national strike in 1971, approximately 500,000 commuters were
using railroads on an average weekday in this country, with 94 percent of this total
concentrated in New York, Chicago, and Philadelphia and the other 6 percent
scattered among 7 other metropolitan areas. It was estimated that an additional
70,000 cars used the highways into Chicago on each of the two days of the strike.
(U.S. Departments of Labor and Transportation, Report to. Congress, pp. 46-49.)
A shutdown of commuter services thus affects a large number of people in key
centers of commercial and political influence, causing considerable aggravation and
at least some lost income and increased costs. If a strike were restricted to commuter
services across the country (although no such strike has ever occurred), it would
hardly seem to constitute a national emergency in view of the concentration of most
commuter traffic in three metropolitan areas, but in case of a total rail shutdown a
President could hardly be faulted for citing disruption of commuter services as one
reason, although secondary to the disruption of freight traffic, for initiating some
kind of intervention. The harder question is whether a shutdown of commuter
service in a single metropolitan area justifies the appointment of an emergency
board under the “regional emergency” test of Section 10 of the RLA. This question
has arisen repeatedly with respect to strike threats on the Long Island Rail Road. My
own opinion is that boards are probably justified in this situation. Several
19
The Railway Labor Act at Fifty
15.
16.
17.
18.
19.
20.
20
knowledgeable persons interviewed for this study disagreed, however, believing that
most commuters are able to adapt to a rail strike without undue hardship and that
boards have been appointed in several LIRR disputes primarily because of the
political clout of New York City interest groups. No objective study seems to have
been made of this interesting case.
Association of American Railroads, Yearbook of Railroad Facts, 1975 edition, p. 36.
Chamberlain and Schilling, The Impact of Strikes, pp. 182-183. The authors suggest
that a rail strike’s impact on producers increases disproportionately with an increase
in scope because a manufacturer may work around the nondelivery of a few
materials, but “a doubling of nondeliveries means more than a doubling of the
chances that the plant will not be able to keep busy” for lack of vital components.
The two strikes studied, one by the firemen in 1950 and other by the trainmen in
1951, were termed “partial” by the authors because they were less than national in
scope although undertaken during the course of national negotiations. Today, they
would be called “selective” strikes. I have applied the term “regional” to these and
all other rail and air strikes less than national in scope, but obviously that term is not
entirely accurate when applied to strikes such as these two and the UTU selective
strike in 1971, all of which shut down carriers in more than one region of the
country, and to strikes limited to one local area, such as those on the Long Island
Rail Road. There seems to be no single term that describes all types of rail strikes
that are less than national in scope, although “regional” is believed to fit most of
them, as well as reflecting the “sectional” emphasis of Section 10.
“Preliminary Analysis of the Impact of the July 16 to August 2,1971 UTU Strike,” a
report from the Acting Administrator of the Federal Railroad Administration to the
U.S. Secretary of Transportation, reprinted in U.S. Congress, Senate* Committee on
Labor and Public Welfare, National Emergency Disputes, 1971-72: Hearings Before
the Subcommittee on Labor, 92nd Cong., 1st and 2nd Sessions, Part 2, 1972, pp.
584-669. Although the report is labeled “preliminary,” a covering memorandum
indicates it is a revised and presumably final version.
Ibid., pp. 587-588 and 590. This DOT report was put together in a short time, being
dated only two weeks after the end of the strike, and therefore drew on not only the
usual statistical sources but also on “the responses of the governors to a request from
the Secretary of Transportation for impact information” (p. 595) and “telephone
conversations with various industry representatives” (p. 608), sources with obvious
risks as well as advantages. The report also acknowledged (on p. 608) the difficulty
of controlling for the effects of several other events, particularly the overlapping
impact of a longshoremen’s strike that shut down all West Coast ports on July 1,
1971 and extended through the entire period of the UTU strike.
“Western Railroads: Merge or go Broke,” Business Week, May 24,1976, p. 57. In
the Regional Rail Reorganization Act of 1973, Congress attempted to salvage the
overbuilt rail system in the Northeast and Midwest through, among other methods,
the formation of ConRail, which in 1976 took over and in effect merged six
bankrupt railroads. Also, one object of the Railroad Revitalization and Regulatory
Reform Act of 1976 is to encourage and expedite mergers through revision of ICC
procedures.
In contrast, from 1926 through 1963, 290 rail strikes occurred and 139 rail boards
were appointed, only 21 of which dealt with national disputes, 34 with multicarrier
disputes of less than industrywide scope, and 84 with single-carrier disputes. This
change did not occur all at once, of course, but the record of recent years has
nevertheless constituted a sharp break with past, as shown by these data on the
Strike Experience Under the Railway Labor Act
21.
22.
23.
24.
25.
26.
27.
28.
percent of Section 10 boards assigned to single-carrier disputes: 61% in 1926-40,
65% in 1941-52, 55% in 1953-60,43% in 1961-63, and 27% in 1964-75. The
comparison of the number of strikes and boards in a given period is at best an
inexact measure of the extent of government intervention, since it will be shown that
only a few boards have been appointed in ‘disputes in which strikes have been in
progress, but it is at least suggestive of a more tolerant government attitude toward
regional rail strikes that the annual average number of rail strikes was twice as high
in 1964-75 than in 1926-63 and yet, on a yearly average, only half as many rail
boards were appointed in the more recent period.
Association of American Railroads, Yearbook of Railroad Facts, 1975 edition, p. 36.
The airlines experienced a total of 171 strikes from 1936 through 1975, one of
which involved 2 carriers in 1945; one, 7 carriers in 1961; and one, 5 carriers in
1966. In addition, members of the pilots’ union struck several airlines for one day in
June 1972, but this action was a limited political demonstration aimed at
encouraging governmental action to cope with the hijacking of airlines then taking
place. Data for 1936-69 from U.S. Bureau of Labor Statistics, Airline Experience
Under the Railway Labor Act, Bulletin 1683, Washington, G.P.O., 1971, pp. 26-27;
data for 1969-75 from National Mediation Board files.
U.S. Congress, Senate, Committee, on Labor and Public Welfare, Federal
Legislation to End Strikes: A Documentary History, 90th Cong., 1st Session, 1967,
Part 2, pp. 1245-1247.
“Statement of P. L. Siemiller” in ibid., p. 1263.
See the testimony of Secretary of Labor Willard Wirtz quoted in ibid., pp. 11711172, 1238, and 1245.
“S. J. Res. 181,” reprinted in ibid., pp. 1241-1242.
In 1975, for example, no board was appointed in a dispute that resulted in a 14-day
shutdown of United Air Lines, the largest air carrier in the country. An unpublished
NMB analysis showed that of the 105 cities then served by United, 98 were also
served by 1, 2, or even 3 other certificated air carriers (the major trunkline and
regional carriers); of the other 7 cities (the largest of which was Salem, Oregon), 4
were served by small “commuter” airlines carrying both passengers and cargo, and 2
others received air cargo or mail service.
The impact of air strikes is often softened in two other ways: the Civil Aeronautics
Board sometimes permits a struck carrier’s routes to be serviced by one or more
airlines not otherwise authorized to do so; and the NMB sometimes prevents
simultaneous single-carrier strikes by refusing to release from mediation the parties
in one dispute until a strike on another carrier has run its course. One would think
that such decisions by the CAB might be challenged by the struck carriers involved,
but I know of no such case; on the other hand, as noted in Chapter III, the courts
have granted the NMB almost unlimited discretion in use of its authority to hold
cases in mediation.
The less unionized industries not included in Table 1 are agriculture; services;
finance, insurance, and real estate; wholesale and retail trade; and government. Data
for these industries are included in the “all industries” average in the first column of
the table, but they are excluded from the ranking process in order to provide a rough
control of degree of unionization. Comparable data are not available for most
individual industries for earlier years, but in railroads strike idleness accounted for
no more than .01 percent of working time in any year from 1934 through 1945
(National Mediation Board, Sixteenth Annual Report, 1950, p. 6), and strike losses
21
The Railway Labor Act at Fifty
29.
30.
31.
32.
33.
34.
22
in airlines must have been equally insignificant in that period when there was a total
of only 6 air strikes (see Table 1 in Chapter VI).
The ranking process in Table 1 is obviously contaminated by the fact that railroads
and airlines are part of “Transportation, communication, and other public utilities,”
but unfortunately the BLS does not publish this strike measure in sufficient detail to
permit an estimate of strike losses in “Transportation . . . minus rail and air.” In
1972, rail and air together accounted for 19 percent of total employment and 24
percent of total mandays lost in strikes in “Transportation, communication, and
other public utilities.” A comparison with other transportation industries (trucking,
long-shoring, and maritime) would also be valuable, but the BLS does not publish
this strike measure for any of those industries because of the difficulty of estimating
total working time in casual labor markets.
It can be argued that there is a difference in strike losses in part because of the
dominance of single-carrier strikes in airlines, on the grounds that a decentralized
bargaining structure (as in construction) encourages rank-and-flle militancy and
whipsawing strikes, few of which are large enough to trigger government
intervention, whereas there are both internal and external pressures to curb strikes in
a more centralized bargaining structure (as in railroads). Examples can be found on
both sides of this argument.
For reasons that are not clear, airlines have the most uneven strike record of the
industries studied, fluctuating erratically between low and high rankings in Table 1.
U.S. Bureau of Labor Statistics, Summary Report, “National Emergency Disputes
Under the Labor-Management Relations (Taft-Hartley) Act, 1947-72,” processed,
n.d., p. 2. The case in which a strike continued in the face of an injunction was the
bituminous coal dispute in 1949-50; a court ruled, however, that the union had not
ordered its members to continue the strike and contempt proceedings were squashed.
It should be noted that Title II proceedings were initiated in 5 other disputes during
this period, but no injunction was requested in 4 cases; and in the 5th, the court
rejected the government’s request.
Data drawn from NMB files and annual reports and from U.S. Bureau of Labor
Statistics, Bulletins 1683 (pp. 40-41) and 1753 (pp. 52-57). The analysis is limited to
the period beginning in 1934 because most NMB data date from that year (when the
agency was created), but inclusion of data for the 11 board cases in 1926-33 would
not significantly alter the results. Also, there is no comprehensive listing of railroad
strikes that may have begun after the appointment of a board during the 1934-49
period; a scanning of NMB annual reports turned up mention of only one (for 6
hours in 1947) during that period, but there might have been a few others of brief
duration.
Apparently the government has never attempted to “enforce” Section 10 by any kind
of court action against the unions involved in the 8 strikes in violation of Section 10.
Specifically, such strikes occurred in 39 of 187 Section 10 cases from 1934 through
1975, and in 9 of 29 Taft-Hartley cases from 1947 through 1972. Data from NMB
files and U.S. Bureau of Labor Statistics, “National Emergency Disputes . . .”, p. 2.
Grievance Adjustment in the Railroad Industry
CHAPTER VIII
GRIEVANCE ADJUSTMENT IN THE RAILROAD INDUSTRY
Jacob Seidenberg*
The efforts of the standard labor organizations and the carriers, aided
and assisted by the Congress, to evolve legislative machinery to resolve
satisfactorily pending claims and grievances arising out of the
interpretation and application of existing contracts has been longstanding, tortuous and unusual. Long-standing in that the efforts of the
parties extend for many years; tortuous in that the positions of the parties
toward the legislative machinery changed and shifted over the years;
unusual in that the railroads are the only industry for which Congress has
appropriated the funds and prescribed the administrative machinery to be
utilized for settling these claims and grievances which are denominated
in this industry as “minor disputes.”
This chapter will examine in some detail the legislative efforts to
establish viable machinery and analyze the reasons why these efforts,
carefully planned and thought through by all parties in interest over the
years, did not come up to their expectation. It will also suggest some
measures that might be undertaken to make the grievance machinery in
the industry more effective and responsive to the needs of the parties as
well as those of the Federal government.
Legislative Origin of the Adjustment Board
Prior to 1918, no congressional enactment affecting railroad
bargaining concerned itself with “minor” or grievance disputes. Shortly
after the United States entered World War I, the Presidentially-appointed Director General of the newly-created U.S. Railroad
Administration first created the instrumentality of boards of adjustment
to deal with “all controversies growing out of the interpretation or
application of the provisions of the wage schedule which are not
promptly adjusted by the officials and employees on any one of the
railroads operated by the government.”1
The Director General’s Orders, establishing three railway boards of
adjustment, were based on memoranda of understanding reached
between the regional directors of the railroads in the Eastern, Southern
1
The Railway Labor Act of Fifty
and Western territories and the chief executive officers of the relevant
labor organizations.
Board of Adjustment No. 1 had jurisdiction over disputes of
employees in train and engine service represented by the Brotherhood of
Locomotive Engineers (BLE), Brotherhood of Locomotive Firemen and
Enginemen (BLF&E), Brotherhood of Railroad Trainmen (BRT) and
Order of Railroad Conductors (ORC). The Switchmen’s Union of North
America (SUNA), a relatively new union at the time, and a rival of the
BRT, was named to Adjustment Board No. 3 rather than Adjustment
Board No. 1. Board of Adjustment No. 1 had eight members, four
representing the railroads, who were selected by the regional directors of
the U.S. Railroad Administration, and four by the chiefs of the involved
brotherhoods.
The jurisdiction of Board of Adjustment No. 2 extended over the six
shop crafts and was composed of 12 members—six from each side. In
addition to the switchmen, Board of Adjustment No. 3 had jurisdiction
over employees engaged in maintenance of way, clerical, and telegrapher
crafts. It also had eight members—four from each side.
The Director General provided, by Circular No. 3, dated August 30,
1918, that employees not represented by any of the member
organizations of the three railway boards of adjustment, could refer their
grievances to the Director of the Labor Division for processing.
The labor members of the boards of adjustment were compensated
by their respective organizations and the carrier members by their
principals. Since all three boards of adjustment were composed of an
equal number of partisan members, the Director General voted in all
deadlocked cases. It is thus apparent that this wartime machinery to
handle minor disputes clearly foreshadowed the coming of the National
Railroad Adjustment Board, established in 1934.
The Transportation Act of 1920 contained a Title III, establishing on
a consensual basis boards of adjustment to resolve disputes over
“grievances, rules, or working conditions.” These boards could be local,
i.e., covering one railroad, regional, i.e., covering a group of railroads, or
national in scope to cover all railroads. With regard to labor organization
representation, Title III permitted a board to be established with only one
or with several labor organizations.
There was considerable controversy as to the basis of establishing
these boards of adjustment. The Brotherhoods wanted the boards set up
on a national basis, while the carriers resisted this concept and favored,
instead a board drawn from a single railroad or a system of railroads.
This was a period when system associations, or unaffiliated unions, or
2
Grievance Adjustment in the Railroad Industry
“company unions” as the organizations denominated them, prevailed on
many properties. The organizations, believed that a national board,
wherein they would name the labor members, would be more
advantageous to them than a system of boards which were local or
regional in scope. The boards of adjustment which were established
under the 1920 Transportation Act generally were either regional or
systemwide. All of these boards were consensual in nature and contained
no means for breaking deadlocks. Under the 1920 Act, the regional train
service boards of adjustment were established, primarily for train and
engine service employees. The other crafts or classes of employees either
were not organized by the standard labor organizations on many
properties, or, if they were, they were not strong enough to compel the
carrier to establish a board of adjustment.
The 1920 Act also established the U.S. Railroad Labor Board,
composed of nine members, appointed by the President. Three were
nominated by labor organizations, three by carrier groups, and three
represented the public. The board had extensive jurisdiction, including
the authority to settle disputes arising during negotiations, as well as
disputes arising from interpretations of existing agreements. The board
itself could hear minor disputes certified to it when one of the adjustment
boards established under Title III was unable to resolve the dispute. In
situations where no board of adjustment had been established, a dispute
could be taken directly to the Railroad Labor Board. Thus the Railroad
Labor Board’s jurisdiction commingled the settling of minor and major
disputes. A weakness of the 1920 Act was that there was no legal way to
enforce the decisions made either by the Railroad Labor Board or by any
of the adjustment boards created pursuant to it. The only power vested in
the board was to direct the power of publicity upon the party whom it
had determined guilty of breaching its orders or awards. Nevertheless,
during its six-year existence, the U.S. Railroad Labor Board disposed of
13,690 disputes.2
The Railway Labor Act of 1926 carried forward the principle of the
1920 Transportation Act that for handling minor disputes boards of
adjustment could be created by agreement “between any carrier or group
3
of carriers or the carriers as a whole, and its or their employees. “
Thus the new law permitted the parties by common agreement to
establish boards of adjustment, but it also allowed existing boards of
adjustment established under the 1920 Act to continue. The three
established Regional Train Service Boards of Adjustment continued, and
in April 1928, a fourth train service board of adjustment was established
3
The Railway Labor Act of Fifty
covering the southwestern region. All of these boards Functioned until
the National Railroad Adjustment Board was established in 1934.
It is interesting to note that the three train service boards of
adjustment had only limited authority to hear discipline cases, and that
the Southwestern Regional Train Service Board was denied jurisdiction
to handle any disciplinary cases.4
In addition to the train service boards there were about 300 regional
and single system boards, primarily the latter, established under either
the 1920 or the 1926 Act. 5
The labor organizations basically wanted a national board
established on a nonconsensual basis. They were dissatisfied with the
provisions of the Act pertaining to organization of adjustment boards
because they contended that many of the rules being interpreted were
standard rules which were receiving differing interpretations on
individual property boards of adjustment. They contended that a national
board was needed to secure uniform interpretation of these standard
rules.
Their other objections to the 1926 Act were the failure to provide
machinery to break deadlocks or to enforce rendered awards. The
carriers, on the other hand, eschewed national boards and insisted on
local or system boards, contending that they needed a degree of
flexibility in the application of the rules based on local practice. They
were also reluctant to agree to national boards because this might have
entailed granting recognition to labor organizations by some carriers who
at the time had no bargaining relations with them. The organizations, on
the other hand, wanted to eliminate the system associations or company
unions.
1934 Railway Labor Act Amendments
With respect to minor disputes, both Transportation Coordinator
Joseph B. Eastman and George Harrison, President of the Brotherhood of
Railway and Steamship Clerks, became principal spokesmen and
proponents before congressional committees urging amendments to the
1926 Act in order to correct what they regarded as inadequacies insofar
as it pertained to resolving grievances and claims. Martin Clement,
President of the Pennsylvania Railroad, appeared before the same
committees, as the spokesman for the carriers, and suggested that while
certain changes might be appropriate, the Congress, nevertheless, should
not establish a national adjustment board.
Coordinator Eastman stated, before the U.S. Senate Committee on
Interstate Commerce, during the hearings to amend the 1926 Act:
4
Grievance Adjustment in the Railroad Industry
I come now to the provision for a National Railroad
Adjustment Board. . . . The Railway Labor Act now
provides that boards of adjustment ‘shall be created by
agreement between any carrier or groups of carriers,, or
the carriers as a whole, and its or their employees.’ You
will note that the duty thus imposed is definite and
positive. The law also prescribes the procedure under
which such adjustment boards shall act and makes their
decisions final and binding on both parties to the dispute.
These provisions were regarded when they were
enacted as a vital and essential part of the Act. Three
national Boards of adjustment had operated during the
period of federal control and, on the whole, successfully.
The employees wanted similar boards established when
the railroads were returned to private control, but the
carriers were unwilling to agree to national boards. They
did, however, agree to the general principle involved,
and when the Railway Labor Act was formulated in
1926, it embodied this principle in the provision which I
have just quoted.
The fact is, however, that this obligation which the
law imposed has been largely disregarded. No national
boards of adjustment have been created and there are
only four regional boards, and all but one were in
existence prior to the Railway Labor Act. They are
confined to the train service, and by no means all .of the
Carriers participate in them. There are a considerable
number of system boards of adjustment in various crafts,
but these are sporadic, and some railroads participate in
no boards of adjustment whatsoever.
. . . Another difficulty with the present law, even
where there is an adjustment board is that although its
decisions are final and binding upon both parties, there
can be no certainty that there will be a decision . . .
deadlocks are a distinct possibility and there has been a
continually growing tendency toward deadlocks. The
number now existing runs into the hundreds.
. . . I now refer to the appointment of such a neutral
member [to break deadlocks] . . . by a federal
government agency. It is, however, a principle which
would be far more difficult to apply if there were a large
5
The Railway Labor Act of Fifty
number of regional boards of adjustment, to say nothing
of a possible multitude of system boards. In the second
place the success of the undertaking will depend very
largely upon the wisdom with which it is administered,
both by the actual members of the board and also by the
parties which stand behind them, namely, the carriers
and the labor organizations. I am quite hopeful that the
members, including whatever neutral members are
appointed, will decide the early cases in such a way as to
discourage the overloading of the board with
unsubstantial cases of no intrinsic merit. I am hopeful
that the carriers and labor organizations will try to make
the new understanding work instead of trying to make it
fail and so will conduct themselves that cases which go
to the board will be the exception rather than the rule.6
In light of the subsequent history of the National Railroad
Adjustment Board, seldom have more prophetic words been spoken than
Eastman’s testimony before the Senate Committee regarding the
problems which might impede the new machinery from functioning as
expected. When Mr. Clement appeared before the same Senate
Committee to present the Carriers’ position on the proposed
amendments, he stated:
We come now to the section of the act which has to
do with the national board of adjustment. . . . The
carriers believe a National Board of Adjustment. . . will
not accomplish what the act has set out to accomplish. . .
. Management is positive that regional boards can be
made to work satisfactorily and efficiently and
thousands of organized employees share this view. . . .
Men and management are agreed that what they
want is compulsory, prompt and equitable settlement of
disputes. . . . None of the things proposed in this bill is
new. We have had national boards, both in the boards of
adjustment during the government administration of
railroads and in the United States Labor Board. We have
had system boards. . . . The result of past experience is
that the farther away from the property you go, the less
satisfaction is brought to men, management and the
organizations. . . . Based on a computation of eastern
region carriers, 75 percent of all grievances between
employees and management have to do with local
6
Grievance Adjustment in the Railroad Industry
conditions on a particular carrier, or part of a carrier,
under the working conditions that apply to that section,
and it is impossible for any one national board or
division thereof to be familiar with the different methods
and practices in effect on all class I railroads of the
country.
. . . Based on past experience experiments and
practices decisions that are equitable, just, prompt and
conclusive can be secured in 90 days from system
boards. It will be a matter of months in regional boards,
and it will extend into years in national boards. I predict
that if Congress gives to these men a national board for
the settlement of disputes the board will not survive and
the men and carriers will be back again as we have in the
past seeking new machinery. . . . The amendment we
propose will create regional boards, with compulsary
decision, prompt and equitable settlement of grievances,
and provision for system boards or craft boards where
desirable. 7
The 1934 amendments to the Railway Labor Act added a new
section to the Act (Section 3). This section stated: “There is hereby
established a National Railroad Board of Adjustment.”
The parties believed that they were establishing a “Supreme Court”
of the railroad industry whose 36 members would be the last and final
word on grievance adjudication.8 The National Railroad Adjustment,
Board (NRAB) was to function through four divisions with the following
jurisdictions: Division One:, train and engine service; Division Two:
shopcraft employees; Division Three: clerical forces, tower and signal
forces, maintenance of way employees, sleeping and dining car
employees; Division Four: marine employees and all other employees
not included in the three Divisions.
These four Divisions have always operated as distinct units with
their own policies and methods of procedure on substantive matters.
Operating under the general aegis of the National Mediation Board, the
NRAB as such has seldom functioned as an entity except for budgetary
matters and other general administrative matters.9
With the enactment of the 1934 amendments the labor organizations
achieved their objective of obtaining legislation creating the same sort of
machinery established by the Director General’s general orders during
World War I. Unfortunately the NRAB never reached the expectations of
7
The Railway Labor Act of Fifty
its labor supporters. There is no single reason or even a set of reasons
why the NRAB did not achieve the goals set for it.
However, a caveat must be entered at this point. Not all four
divisions of the NRAB had the same record of accomplishment or lack
thereof, or engendered the same responses within the industry. Generally,
representatives of labor and management have found the operations of
the Second and Fourth Divisions adequate and satisfactory. At least the
partisans have directed little, if any, criticism at these two Divisions. It
must be noted however that these two Divisions do not cover a great
number of employees, and do not encompass the operating crafts which
are the significant employee organizations in the industry. The Third
Division has had a somewhat mixed record, but generally it has kept its
case load relatively current, and never had a backlog the size of the First
Division, nor did it require the length of time to resolve cases needed by
the First Division.
Because the flames of controversy have continually swirled around
the First Division, and because it embraces the politically significant
operating personnel in train and engine service, most of our attention
shall be directed to this Division in discussing the National Railroad
Adjustment Board.
First Division Operations
The First Division got off to a rocky start. While the 1934
amendments became effective on June 21,1934, the First Division did
not hear its first case until December 3 of that year. Since a major and
constant criticism of the First Division has been its inability to reduce or
eliminate its backlog, it is noteworthy that it began operation with a
backlog of approximately 1200 unresolved cases. It inherited those from
the four regional train service boards established under the 1920
Transportation Act, as well as from other boards established under the
1926 Act. In addition the Switchmen’s Union of North America had now
been granted representation on the First Division and its cases transferred
from the Third Division to the First. Furthermore, many of the regional
and system boards of adjustment which had been established by mutual
agreement of the parties went out of existence and transferred their cases
to the NRAB. Some of the boards, however, continued to function
independently under that provision of the 1934 Amendments10 which
provided that nothing in the section should prevent the establishment of
system, group, or regional adjustment boards by agreement of carriers
and representatives of employees selected in accordance with the Act.
8
Grievance Adjustment in the Railroad Industry
While it can be seen that the First Division did not start off under
very propitious circumstances, the passage of time did nothing to help
matters. The backlog continued to increase so that the monograph
prepared in 1940 by the Attorney General’s Committee on
Administrative Procedure concerning the NRAB stated:
Divisions II, III and IV are reasonably abreast of
their dockets. Division I, however, which handles nearly
eighty percent of all the Board’s cases is more than three
years behind in its docket. During the past few years it
has disposed of approximately 1000 cases per year and
in December, 1939, there were 3689 cases awaiting for
decision. Not only is Division I behind in its docket, but
it is constantly falling further behind.11
The situation never improved. By 1943, the backlog on the First
Division had increased to more than 6000 cases.
Al H. Chesser, BRT chief, testifying before a subcommittee of the
House Interstate and Foreign Commerce Committee on June 8, 1965,
stated with regard to the history of the First Division backlog:
. . . this performance has steadily built up a backlog of
undecided cases. Records show that cases on hand and
undecided increased from 1095 to 4836 between 1935
and 1941. At the close of 1942, the backlog was 6092. It
was reduced to 1905 by the end of 1947.
It commenced to rise the very next year, totalling
2191 at the end of 1948 and cresting at 3169 in 1955. . .
as of March 1, 1965, the backlog of undecided cases at
the First Division totalled 4089.12
The core question is why the First Division was smothered by its
unmanageable backlog until 1970, when the 1966 amendments to the
Railway Labor Act (to be discussed subsequently) began to register their
impact. Continuous efforts of the Carriers’ Conference and the chiefs of
the operating crafts organizations through the years were to no avail.
Almost from its inception the First Division was the subject of
investigatory review by many levels of the Federal government,
including the President.
On September 15, 1942, the President of the BRT protested to
Commissioner Eastman about the backlog of 5284 cases at the First
Division. On November 6, 1942, the organization raised the issue with
President Roosevelt. He then held a conference in January 1943 with all
the parties to work out corrective measures. While nothing specific
resulted from the conference, Roosevelt appointed Edward J. Connors,
9
The Railway Labor Act of Fifty
Vice President of the Union Pacific Railroad, to analyze the situation at
the First Division and make recommendations to him for:
(a) Settlement or disposition of outstanding disputes.
(b) Reduction in the number of controversies submitted
to the First Division of the Board and improvements
in methods and procedure for the more expeditious
handling of cases.
Connors’ report13 stressed that the failure of the parties to accept
prior precedents contributed to the backlog. Moreover, many cases were
before the Division that were trivial and unimportant. The labor
organizations received this report without enthusiasm, and no concrete
results followed from it.
At the 1940 public hearing before the Attorney General’s
Committee, both the labor and carrier members were afforded an
opportunity to present their views on the monograph that the
Committee’s staff had prepared dealing with the operations of the
NRAB. Mr. Fowler, a carrier member, took issue with that section of the
report 14 which stated the members of the Board “were frankly partisan in
favor of their principals.” Mr. Fowler stated:
The members appointed by the carriers emphatically
deny the statement that they are ‘frankly partisan in
favor of their principals’ as the record will clearly show.
While the basic organization of Division would point to
partisanship, and while the carrier members
acknowledge responsibility toward those whom them
represent, they perceive their duty to be that of judges
rather than advocates, at least in all procedures prior to
the injection of a referee. Proof of this may be found in
the following data taken from the record;
Award 1 to 443, inclusive, issued from the time of
organization of the First Division of the Adjustment
Board to December 31, 1939, show that of disputes other
than discipline, the claim of the petitioner was sustained
as presented in 1480 cases or 57.43 percent of total,
without aid of referee; that in only 754 cases, or in 29.26
percent of total was the claim denied as presented; that
in 250 cases, or 9.70 percent of the total, the claim of
petitioner was sustained in part. . . .
Such a record speaks for itself with respect to
partisanship among the carrier members. 15
10
Grievance Adjustment in the Railroad Industry
Within a year or two thereafter the entire carrier membership on the
First Division was replaced, giving rise to the inference that the carriers
preferred its representatives to be partisans rather than judges. It is also
noteworthy that the number of sustaining awards rendered on the First
Division declined.
Between June, 1945 and October, 1946 the First Division did not
function as a result of the Supreme Court’s decision in the Elgin case.16
The Court had held that the organization’s compromise settlement of a
number of claims with the carrier did not preclude other employees from
filing and prosecuting these same claims before the Division. The Court
held that the organization did not have the exclusive right to represent
employees on claims or grievances without the specific authorization of
the employees. Following this decision, the carrier members refused to
consider cases unless the labor members of the Division produced
specific and written proof that the individual members had authorized
them to represent them. The union members bridled at this and no cases
were processed for almost a year. This contributed to increasing the
backlog. This matter was resolved when the Court, on a 1946 rehearing,
held, inter alia, that an employee who knew his claim was before the
Division and interposed no objection, could not thereafter contend that
he had not authorized the action.
Another factor that impeded the continuous functioning of the
Division was the absence of some labor members who were assigned
from time to time to carry out assignments of their Grand Lodge. For
example, the Presidential Railroad Commission issued its report in
February, 1962, recommending a number of changes in the work and pay
rules of train and engine service employees. The organizations generally
found these recommendations unacceptable, and several labor members
of the Division were assigned to a campaign throughout the country to
mobilize public and congressional opinion against the Commission’s
recommendations. For more than four months in 1963, there was no
Brotherhood of Locomotive Firemen and Enginemen representative at
the Division to process cases because this union officer had been detailed
elsewhere. This was done, notwithstanding the fact that at the time the
Firemen’s Organization had the second largest backlog of cases at the
Division.
The partisan members were firm and unequivocal in attributing the
blame to the other side for the Division’s lack of effectiveness in meeting
its statutory responsibility, namely, to resolve disputes arising out of
differences as to the proper interpretation and application of existing
collective bargaining agreements. The unions contended that the carrier
11
The Railway Labor Act of Fifty
members would not honor valid claims on a non-partisan basis, but
insisted on deadlocking virtually every claim, regardless of its merits,
and demanding that the services of a referee be invoked before any claim
could be finally disposed. Such procedures, the labor members insisted,
were contrary to the basic purpose of the Act and frustrated the Division
from functioning in the manner Congress intended.
Labor’s general position on this matter was stated in a memorandum
sent to the carrier members by the BRT member of the Division of April
5, 1962:
I am attaching . . . some very illuminating statistics
covering the period from July 11, 1952 to April 1, 1962.
...
It will be noted that during the approximate 10 year
period covered by this analysis, my office recognized
our responsibility by writing out a total of 929 dockets
and handed to the referees a total of 613 dockets wherein
no briefs were prepared and wherein we either stood on
the record or, by agreement with the Carrier members,
furnished the referee prepared findings either dismissing
the claim, making a grand total of 1542 dockets.
During this same period it will be noted 21 dockets
were sustained by 3 Carrier members, without the aid of
a referee. I say 3 Carrier Members, because during this
10 year period neither Mr. Reeser nor Mr. Burtness ever
agreed to sustain a single claim on their own, forcing us
to take every docket assigned to those two Carrier
Members to a referee for an award.
The carrier members’ response to this general contention of the
organizations, that the labor members disposed of many claims without
invoking the services of a referee, was that these cases should not have
been presented to the Division in the first instance. E. T. Horsley, a
carrier member of the First Division stated before the Subcommittee on
Transportation of the House Committee on Interstate and Foreign
Commerce on June 7, 1965: “there is a real need for a prescreening of
17
cases to eliminate the trivial and unimportant.”
Mr. Horsley also alluded to the testimony given in 1964 by a
representative of the BRT before the same House subcommittee where
this BRT representative stated that of the BRT’s cases pending on the
First Division, 30% to 35% could be classified as frivolous or worthless
and that only 10% of the cases should be presented to a referee.18 The
carrier member repeatedly stressed that the First Division was bogged
12
Grievance Adjustment in the Railroad Industry
down with worthless claims and that the carrier members could not be
expected to agree voluntarily to pay these frivolous claims in order to
facilitate the reduction of the backlog.
A review of the overall statistics of the disposition of claims and
grievances of the First Division particularly, and the other Divisions
generally, lend support to the carriers’ contentions that not many of the
claims had merit. The data indicate that from 1934 to 1944 the
organizations fared well at the First Division, winning about 60% of their
cases. Starting in 1944, however, the percentage of claims sustained
averaged a little over 25%.
Another charge levelled at the carrier members is that they lacked
authority to settle claims without going to a referee, while the labor
members had unrestricted authority to use their own judgment in the
disposition of claims. The carrier members denied this contention and
stated that they had been given full authority by the Carriers’ Conference
to exercise their discretion and judgment in resolving claims. In general,
it does appear that organization members were under less constraints in
“washing out” a claim than were carrier members in that they had a
wider and more diffuse constituency.
Another defect in the Division’s operation was the failure of either
side to follow precedents and accept the concept of stare decisis. Each
side accused the other of this fault, but the inexorable conclusion which
emerges from an examination of the Division’s decisions is that neither
side accepted an award which they did not like. They would return time
and again to the Division with a similar claim hoping to find a referee
whom they might be able to persuade to accept their position. This
practice was not exclusively confined to the First Division, and could
also be observed on the other Divisions, particularly the Third. The
partisan members of the NRAB were not inclined to accept awards
which they lost and then seek to negotiate a rule which would be more
responsive to their operating needs. In this respect, the railroad industry
has not generally followed the practice in other industries, that of seeking
a rule change when one of the parties is convinced that a given award is
egregiously wrong or materially at variance with the intent and purpose
of the labor agreement.
The partisan members would not accept precedents because both
sides frequently had little respect for the ability, knowledge, judgment,
and sometimes even the integrity of some neutral referees. Although the
initial group of neutrals appointed to the Division were distinguished
professors, justices of state supreme courts and attorneys, the members of
the Division tended to be suspicious of them. Moreover, that first
13
The Railway Labor Act of Fifty
generation of neutrals and the ones that followed were not steeped in the
arcana-of railroad work rules. The Division members who had to explain
and argue these rules to the newly appointed referees were not inclined to
place great credence or worth in the awards when inexperienced referees
ruled against them. For almost the first twenty years of the First Division,
many of the neutrals appointed by the National Mediation Board were
actively serving as justices of state supreme courts. Some of these
individuals found the then $75.00 daily stipend, earned during the
summer months when their courts were in recess or at times when there
was not sufficient work on their court dockets to keep them fully
occupied, a welcome income supplement. Justices from the Supreme
Courts of Maine, Colorado, Nebraska and Indiana, well versed in the
law, nevertheless received disparaging treatment from the Division
members who took issue with the awards. Between 1935 and 1965, with
rare exception, the First Division could not mutually agree upon a
neutral, and all selections had to be made by the National Mediation
Board. During the past decade the situation has changed and it is not
unusual now for the Division to agree upon a referee and then to select
him to hear another docket of cases after he has completed his initial
assignment. Nevertheless, denigration of neutrals has not wholly
disappeared.
A striking example of the distrust of the Division shown towards the
referees as well as towards each other was the insistence of the First
Division members up to about 1971 that a referee not dictate his award to
the clerical staff to be typed. The Division members feared that if the
neutral dictated his award to a staff secretary one side or the other would
learn of it, and put some pressure on the referee to change it before
adoption. Consequently, the referee came to the adoption session and
read his self-typed or handwritten award to the assembled members. The
ten partisan members then voted on the award without having a prior
opportunity to review and consider the language of the award and its
reasoning. On rare occasions a Division member would request that the
award be typed by the Executive Secretary and circulated among the
members before it was voted upon. This situation was exceptional,
however, and it was done only after the referee had already read his
award to the Division. In the early days when the awards were of
“telegraphic brevity,” this procedure did not create much of a problem.
But as a different group of neutrals began to be assigned to the
Division—neutrals who were professional arbitrators in outside industry
and who were accustomed to preparing more extensive awards and
setting forth the reasoning underlying the award—the adoption
14
Grievance Adjustment in the Railroad Industry
procedures of the Division were found to be sorely lacking. The First
Divisi9n only changed its adoption procedures after the Public Law
Boards became operative as a result of the 1966 amendments, and when
referees, who were busy on public law board assignments, declined
assignments on the First Division until measures were instituted to
rationalize the procedures of the Division. It is not an unfair
characterization to state that the attitude of many Division members from
both sides of the table toward neutrals was coercive and intimidative.
The archives of the National Mediation Board are filled with letters from
the partisan members urging that certain referees not be appointed to the
Division or not be used in the industry. In the early days, the National
Mediation Board honored such requests, pro forma. In more recent times
the NMB has demanded such a petitioner to show cause why a particular
neutral should not be utilized.
But to return to the main point, it-was very difficult to have a
precedential system of awards adopted in an industry where one side or
the other generally had a low regard for the neutrals serving it.
Dissatisfaction with neutrals is not confined to the railroad industry, but
nowhere is the dissatisfaction expressed so freely, so frequently, and so
vehemently.
Another operational factor which contributed to the Division’s
backlog prior to 1970 was the rule that cases would be heard in the order
in which they were docketed. The smaller organizations on the First
Division, prior to merger, were the Switchmen’s Union of North
America and the Brotherhood of Locomotive Engineers. The two larger
organizations, the Brotherhood of Locomotive Firemen and Enginemen
and the Brotherhood of Railroad Trainmen, who had much heavier case
loads would not permit any waivers of the docketing rule to allow an
organization which was ready to present its case out of order, even
though they themselves were not prepared to go ahead. Another
operational defect in the Division’s procedures was its practice of
granting numerous extensions of time to the parties to file their
submissions. While the rules of the Division limited the number of
extensions that were to be granted, this rule was honored in the breach.
As aresult of these extensions, many cases were very old even before
they were in a posture to be heard by the Division.
In December 1971, the Division modified its rules (Hirst Resolution)
and now a given organization may handle cases in the order of the
respective organization’s calendar. An organization may also deadlock a
list of its own cases, and present them to a referee for oral argument
whenever it and the carrier member are ready to proceed.
15
The Railway Labor Act of Fifty
One cannot avoid the conclusion, however, that as long as the First
Division continued to receive the volume of claims that it did from its
inception until the 1966 amendments became effective, it would have
been difficult for it, even under the most favorable operating
circumstances, to keep abreast of its case load. Between 1934 and 1966,
37,749 cases were docketed. In no year but one were less than 624 cases
filed. There were two years when more than 2000 cases were filed with
the Division: 2215 in 1942 and 2313 in 1944. Not until the public law
boards started to function did the new cases docketed decline and did
there begin to be a substantial withdrawal of cases from the First
Division for presentation to public law boards. In 1966, 497 new cases
were docketed and 260 withdrawn. In 1970, 192 new cases were
docketed and 443 withdrawn. In 1974, 20 new cases were docketed and
215 withdrawn. The backlog of the First Division at the end of 1975 was
555 cases as contrasted with 4040 in 1966 when the new amendments
became operative. Today the case load of the First Division is rapidly
diminishing, raising the question whether there remains a need for this
Division. This subject will be discussed later.
Special Boards of Adjustment
Another mechanism that both the carriers and organizations have
utilized in lieu of the adjustment board in the last 25 years has been
special boards of adjustment. The Railway Labor Act in Section 3,
Second, states:
Nothing in this section shall be construed to prevent any individual
carrier, system or group of carriers and class or classes of its or their
employees, all acting through their representatives, ... from mutually
agreeing to the establishment of system, group or regional boards of
adjustment for the purpose of adjusting and deciding disputes of the
character specified in this section.
As the backlog grew on the First Division, the operating crafts and
some carriers sought to establish an alternate forum to resolve their
pending claims and grievances. Since these boards were consensual by
statute, both parties had to agree to establish them. They were more
effective than the boards of adjustment established under the
Transportation Act of 1920 and the 1926 Railway Labor Act because the
new boards provided for a neutral to hear and decide any deadlocked
grievance. Starting in 1943 and continuing up to the present, certain
railroads, such as the former New York Central System, the Baltimore
and Ohio, the former Chicago, Burlington & Quincy, the former
Pennsylvania Railroad, the Sante Fe and the Southern Pacific railroads,
16
Grievance Adjustment in the Railroad Industry
established special boards of adjustment on their properties, primarily
with the operating crafts. The Southern Pacific Special Board of
Adjustment, established with its engine service forces in 1952, is still
functioning. It has rendered 5113 awards to date, and 5009 claims
initially presented were subsequently withdrawn.
Over 800 special boards have been established to date pursuant to
Section 3, although since the passage of the 1966 amendments, the need
or purpose for these special boards has diminished. As of December 31,
1975, there were 7712 cases pending on 23 such Boards with the crafts
represented on the First Division. Today the National Mediation Board
usually establishes a special board of adjustment to hear disputes
pertaining to the application of protective benefits for employees of
merged railroads. All other boards are established and designated as
public law boards. The National Mediation Board has indicated that in
due course all special boards of adjustment will be replaced by public
law boards.
Supplemental Boards of Adjustment
Another device used by the carriers and the labor organizations
during the past 20 years to cope with the First Division’s backlog was the
establishment of two supplemental boards to the First Division, i.e., one
to hear engine service cases and the other to hear train service cases.
These two boards functioned from January 1950 until March 1953 and
issued 1475 awards, while the First Division itself rendered 1936 awards
during that time.
In 1961 the parties also established a supplemental board for the
Third Division. From July 1, 1961 to June 30, 1969, this supplemental
board functioned and disposed of 3264 cases, while the Third Division
itself disposed of 2776 cases.
On March 15, 1965, a Firemen’s Supplemental Board was
established at the First Division. It functioned until March 1967 and
disposed of 187 cases.
Notwithstanding the substantial output of these supplemental boards,
their efforts had no lasting or appreciable effect on the backlog of the
First Division because of the ever-increasing number of cases docketed
with it. Between 1950 and 1952, the two supplemental boards disposed
of 1475 cases but in the fiscal year of 1951-52 almost 2200 were
docketed. While the record of reducing the backlog at the Third Division
was better, it also was confronted with an increased inflow of new cases.
The supplemental boards of the First and Third Divisions were
terminated because the unions contended that they lacked the necessary
17
The Railway Labor Act of Fifty
manpower to service these boards as well as the increasing number of
special boards of adjustment being established on various properties
throughout the country.
Disputes Committees
Another device carriers and organizations have utilized during the
past 25 years, in part because of the dissatisfaction with the First
Division, was the establishment of dispute committees to hear and decide
disputes arising out of the interpretation and application of national
agreements. Some of the national agreements were negotiated with one
labor organization, and some with more than one organization, but all
had nationwide application.
The first agreement to contain a disputes committee was the
Washington Job Protection Agreement of 1936 dealing with
“coordination” allowances to employees adversely affected by a
consolidation of facilities, operations or service through the joint action
of two or more carriers. Since Section 13 of this Agreement provided the
mechanism for resolving disputes arising thereunder, the disputes
committee functioning under this Agreement has come to be known in
the industry as the “Section 13 Committee.” If the parties to the contract
were unable to settle the dispute, and unable to agree on a referee, the
referee was selected and compensated by the National Mediation Board.
The referee’s award in these matters was final and binding.
As national bargaining became more widespread in the 1950’s,
virtually all national agreements included provisions for dispute
committees. Such committees were created under 28 different
agreements between 1936 and 1973, and often involved a number of
different unions. The concept had considerable acceptance by both sides,
and they handled and decided a considerable number of cases.
The disputes committee began to become inactive as public law
boards started to proliferate. When public law boards were first
established in 1967, the agreements establishing such boards usually
contained a provision that a dispute which was otherwise referable to a
national disputes committee was outside the jurisdiction of, and could
not be heard by, the public law board. Sometimes when a time limit or
other procedural issues were involved, the parties established a
procedural public law board to determine the jurisdictional matter. In
more recent years, the parties have chosen to expedite the resolution of
all their outstanding claims or grievances by having one proceeding, and
have eliminated from their agreements any provisions stating that matters
within the cognizance of a national agreement or a procedural board
18
Grievance Adjustment in the Railroad Industry
should be referred to such boards. The parties apparently find the public
law boards effective and expeditious instruments for resolving
outstanding claims and grievances, both procedurally and substantively,
and have not chosen to resolve the entire dispute by one board.
Consequently, in recent years, both the Carriers’ Conference and the
organizations have lost interest in utilizing the disputes committee
machinery to resolve matters that were formerly within their jurisdiction.
A recent example of this lack of interest has been the failure of the nonoperating crafts to name any neutrals to function under the 1973 National
Supplemental Sickness Benefit Plan.
On the other hand, it must be noted that the September 25, 1964
National Agreement providing for a special board of adjustment to hear
and decide subcontracting problems in the shop crafts has had a
continuing and extensive history, and has decided many cases that might
have been otherwise referred to the Second Division. However, the
National Agreement of February 7,1965, which established dispute
machinery to deal with stabilization of employment between the carriers
and five non-operating crafts, has never been used extensively because
both parties contended the Agreement was unworkable. Railroads which
became involved in merger arrangements chose to negotiate separate
machinery to resolve disputes concerning the protection of employees
adversely affected by the merger rather than utilize the February 7th
Agreement.
Merger Protection Machinery
It has previously been noted that the earliest disputes committee
machinery was contained in Section 13 of the Washington Job Protection
Agreement, and that committee has usually been known as “the Section
13 Committee.” The Washington Agreement’s scope was confined to
“coordinations.” Between 1936 and 1940, there was judicial and
administrative action to extend the requirements to protect employees
adversely affected by activities other than coordinations. In the
Transportation Act of 1940, Congress required the Interstate Commerce
Commission to impose just and reasonable conditions for employee
protection where the parties were not able to negotiate such conditions.
Section 5(2)(f) of the 1940 Act applied to mergers, leases and purchase
or control agreements. Moreover, the courts by judicial decree have
required the ICC to prescribe protective conditions for employees
adversely affected by abandonment of facilities.
In those situations where the ICC prescribed conditions for adversely
affected employees, it has generally decreed that any disputes arising out
19
The Railway Labor Act of Fifty
of the transaction should be referred to an arbitration committee. The
parties involved have negotiated implementing agreements to effect
changes. They have also provided for dispute machinery which has
called for a neutral member of an arbitration committee to be selected
and paid for by the parties. In the event the parties cannot agree on the
neutral, he is to be designated and compensated by the National
Mediation Board. This sort of machinery has been utilized by the parties
when the ICC has prescribed the “Oklahoma”, “Burlington” and “New
Orleans” conditions.
In the 1960’s, a number of major railroads consummated farreaching and extensive mergers. Both the carriers and the organizations
negotiated merger protection agreements providing means to resolve
disputes arising under the protective benefit provisions. The Burlington
Northern and the Penn Central mergers represented somewhat different
approaches to the dispute resolution machinery negotiated with the
organizations. For example, the Burlington Northern negotiated an
agreement with the Brotherhood of Railway and Airline Clerks in 1967
which provided for a special board of adjustment of three persons. The
neutral member was selected and compensated by the parties to serve for
a period of three years, eligible for renewal of subsequent terms of two
years each.19
Under the Penn Central merger agreement with the Clerks,20 the
parties chose to rely on ad hoc arbitration machinery, preferring to select
an arbitrator for each separate protection benefit dispute and pay for his
services when they could agree upon him, and when not, request the
NMB to designate and compensate the neutral. Both types of merger
disputes resolution machinery have apparently worked to the satisfaction
of the parties and they have continued to use them.
The experience of the merged Burlington Northern with boards
wherein the parties shared the fees and costs, when compared to utilizing
other available machinery wherein the Federal government paid the
referee’s fees and expenses, is revealing. In the six years since the BN
merger, 12 special boards of adjustment and two Amtrak boards have
been established by the carrier with such organizations as the
Brotherhood of Locomotive Engineers, the United Transportation Union,
the Brotherhood of Railway, Airline & Steamship Clerks, the
Brotherhood of Maintenance of Way Employees, the American Train
Dispatchers Association, the Brotherhood of Railway Carmen, the
International Brotherhood of Teamsters, and the Hotel and Restaurant
Workers. These 14 boards have rendered 278 awards utilizing 10
20
Grievance Adjustment in the Railroad Industry
arbitrators at a cost of $41,000 in fees and $10,165 in expenses,
averaging out at $184 an award.
During this same six-year period, the carrier received 924 awards
under the traditional Section 3 machinery, using 54 separate governmentpaid neutrals. Of the 924 awards, 45 were issued by the First Division, 80
from the Second Division, 158 from the Third Division and 49 from the
Fourth Division. Twenty awards came from five special boards of
adjustment and 572 came from 48 public law boards.
AMTRAK
Another protective benefit plan that provided its own dispute
machinery resulted from the congressional enactment in 1971 of the
National Railroad Passenger Corporation (AMTRAK). This corporation
took over the operation of intercity passenger train service from the bulk
of the country’s railroads. The Act provided that employees who were
adversely affected by the discontinuance of railroad passenger service
were entitled to prescribed protection. All disputes arising out of the
protective benefit aspects of the Act were to be resolved by the
appointment of a referee agreed to by the parties, and in the event there
was no agreement, the referee was to be selected by the National
Mediation Board but compensated by the parties.
Between May 1971 and July 1,1975,38 referees were selected to hear
disputes under this procedure. Eighteen awards were rendered, and the
other cases were either withdrawn or settled before an award was
rendered. There is no indication that the tight time limits prescribed by
the Act have impeded the operation of this dispute machinery. Those
governmental officials who appeared before congressional committees
emphasized the need for legislation which would resolve disputes expeditiously. Then Secretary of Labor Hodgson testified that these
provisions were intended to prevent the AMTRAK dispute machinery
from becoming as slow moving as the regular grievance machinery in the
railroad industry.
Long Island Railroad-UTU Expedited Procedures
Another departure from the traditional approach of handling
discipline cases under the Railway Labor Act grievance procedures has
been the machinery instituted by the Long Island Railroad and the UTU
in 1973. The parties have executed a contract wherein they agreed to
utilize the New York Office of the American Arbitration Association to
process two types of discipline cases. The Association provides the
parties with a panel of arbitrators who have indicated their willingness to
21
The Railway Labor Act of Fifty
be available to hear cases on short notice. The first type of discipline
cases involves the usual offenses such as violation of Rule G
(intoxication), signal run-bys, theft, mishandling of cash fares, etc.,
where a trial is held on the property. In those kinds of cases, the decision
of the superintendent is appealed directly to the American Arbitration
Association. There is no appeal on the property. Each side prepares a
submission to give the arbitrator and argues before him orally.
The second type of discipline “case involves “run failure,” i.e., those
situations where the crew member fails to report for his assignment
without giving the requisite notice. These cases are heard de novo by the
arbitrator, and decided on that record. In the first type of discipline case,
the arbitrator has ten days within which to render his decision. In the
second type, if a court reporter was used, the arbitrator has 30 days from
receipt of the transcript to render his decision, otherwise he must do so
within ten days.
Both parties have indicated that they are generally satisfied with this
expedited procedure for discipline cases, although the UTU has
expressed some concern about the costs involved. To date, 184 cases
have been handled by 22 arbitrators for a total cost of $40,000, shared
equally, at an average cost of $217 per case. The Long Island states the
expeditious disposal of pending disciplinary matters has advantages that
offset the cost of the program. Thus far, however, no other organizations
have accepted the Long Island’s offer to institute the same system with
them.
1966 Amendments to Railway Labor Act
The long-held dissatisfaction which the operating crafts felt toward
the First Division culminated in the union campaign to have Public Law
89-456 enacted by Congress and signed by the President on June 20,
1966. This law modified Section 3 of the Railway Labor Act by
authorizing the establishment of special boards of adjustment on
individual railroads upon the written request from either of the
representatives of the employees or the railroad to resolve disputes
otherwise referable to the National Railroad Adjustment Board.
The carriers opposed the enactment of P. L. 89-456, contending that
if the organizations would meet their responsibilities under the Railway
Labor Act there would be no need to establish non-consensual boards of
adjustment on individual properties throughout the country.
The organizations representing the operating crafts vigorously
espoused the proposed changes in the Act, contending that the First
Division was so helplessly backlogged with cases that it was no longer
22
Grievance Adjustment in the Railroad Industry
viable or functioning in any meaningful fashion. Al H. Chesser,
testifying in behalf of the BRT, stated:
. . . as of March 1, 1965, the backlog of undecided
cases at the First Division totaled 4089.
. . . the Division has slowed down to an annual
output of 128 awards and gives every indication of doing
less and less. It is simple arithmetic to determine that at
this rate of progress, the Division will require 32 years
or more, just to decide those 4089 cases.21
Chesser further testified that the refusal of the carriers to accept
decided cases as precedents and the carriers’ insistence on deadlocking
every case and invoking the services of a referee unless the organization
would agree to a denial award were the principal factors creating the
huge backlog at the First Division.22
J. E. Wolfe, Chairman of the National Railway Labor Conference,
testified in behalf of the carriers and took the opposite position, stating
that the proposed amendments were neither necessary nor desirable. He
testified:
On each railroad we have at least 22 separate statutory
bargaining representatives, to each of which the bill
gives the right of initiating their own private Board of
Adjustment. Every such board would be a separate
independent entity with a neutral member as well as a
carrier and union representative. Multiply the 22 unions
by the number of railroads affords some idea of the
fantastic duplication of administrative machinery . . .
much of which would be at the public expense. Imagine
the magnitude of the task of simply finding thousands of
competent neutrals to service these private boards, not to
mention the public financial responsibility for paying
them. The employees of no other industry are afforded
such tribunals.23
Wolfe also contended that these proposed boards would create a flood of
disputes that would continue to exceed the present docketing of cases
because there would be a lack of uniformity of local board decisions
from railroad to railroad. 24 Wolfe asserted that the backlog of the First
Division was primarily due to the failure of the organizations to screen
their cases with the result that many frivolous cases were docketed. He
further stated that in the past ten years approximately 80 percent of the
claims were denied, which was persuasive evidence that too many
frivolous claims were being filed.25
23
The Railway Labor Act of Fifty
The position of the parties before the congressional committee in
1965 was at variance with their positions before similar congressional
committees in 1934. In the earlier period, the labor organizations had
wanted a non-consensual national board to hear claims and grievances in
order to get uniformity of handling, while the carriers originally
contended that matters should be handled on the local level in order to
deal with individual problems. By 1965, the carriers sought to maintain
and improve the national machinery, while the organizations stated that
the national machinery was ineffective and the problems could only be
handled satisfactorily if authority were granted to non-consensual boards
on local properties. The carriers rejoined that if such authority were
granted, the grievance machinery would break down because of the
volume of disputes that would be generated. There has now been
approximately ten years of experience with these new types of boards,
called public law boards, under the 1966 amendments. The
organizations’ prediction that the establishment of these boards would
reduce the First Division’s backlog has proven accurate. As of December
31, 1975, the backlog of this Division was 555 cases. The backlog of the
NRAB for all four divisions was 1421 cases.26 The total number of
pending cases on public law boards was 12,196. There were also 7832
cases pending on consensual special boards of adjustment.27 The total
impact of the 1966 amendments establishing public law boards can be
summarized by noting that on June 30, 1966 there were 6090 open and
pending cases at the NRAB. In contrast, on December 31,1975, there
were only 1421 open and pending cases remaining on the Adjustment
Boards.28 But the 1975 backlog of 12,194 pending cases on 459 open
public law boards is a larger backlog than ever existed at any time at the
NRAB. The First Division’s backlog has simply shifted to the public law
boards—and gotten larger.
There are several reasons for the growth and popularity of public law
boards.
A. Non-consensual—Either party may request the other to establish a
public law board. Should the other party fail to comply, the moving party
may petition the National Mediation Board to designate a member on
behalf of the recalcitrant party. The Board will then designate such a
member and these two members will constitute the public law board.
Thus the board comes into being if either party wants it.
B. Procedural Neutral—In the event these two board members have
a dispute concerning the establishment or the jurisdiction of the board,
either party may request the NMB to appoint a procedural neutral to
resolve these questions. Of the 1553 public boards established as of
24
Grievance Adjustment in the Railroad Industry
December 31, 1975, 162 have been procedural public law boards. These
deal with such problems as jurisdiction, time limits, place of hearings,
exchange of submissions in advance of board session, interpretation of
agreements for establishing the board, and the like. The ability of a party
to get procedural machinery quickly established without the need of the
other party’s consent has been a factor in the growth of public law boards
and has at the same time contributed to the decline in the use of some of
the national dispute committees to interpret and apply national
agreements dealing with procedural issues.
C. Informality—The flexibility and informality which govern the
proceedings of public law boards have also contributed to their increased
use. The rigidities and strict rules which formerly governed the
procedures of the First Division do not prevail at public law boards.
Parties may produce witnesses and cross-examine other witnesses. In
addition, evidence is sometimes produced at board hearings which may
not have been introduced at the intermediate steps on the property.
Neutrals frequently allow the introduction of such evidence, and then
give the other party time, usually 30 days, to reply to the newlyintroduced evidence. When they request it, parties are also permitted to
file post hearing statements or briefs, a procedure not followed at the
First Division.
Many partisan members as well as neutral members of public boards
have expressed the view that the public law boards’ procedures and
methods of operating are more effective than those prevailing at the
NRAB, and prefer to utilize this forum. The popularity of the procedures
used at public law boards was the principal reason for the revision in
1971 of the procedures of the First Division. The Division became aware
that if it wanted to continue functioning at all it would have to abandon
some aspects of its rigid procedures.
D. Expedition—While the backlog of public law boards has grown
to major proportions—as of December, 1975, 12,194 cases distributed
among 459 current boards—these boards nevertheless act with dispatch
in disposing of their dockets. To date there have been no seven-year
delays in disposing of these cases as was the situation at one time with
the First Division. Public law boards generally have disposed of their
dockets within a year and a half. This has occurred because the dockets
of individual boards have not been too large and also because the
National Mediation Board has not encouraged adding cases to existing
dockets. The NMB has asked the parties to close their boards when the
original docket has been completed, and, if they then had additional
cases, to establish another board. The objective of the NMB is to prevent
25
The Railway Labor Act of Fifty
a given public board from developing an indeterminate existence with a
never-ending flow of cases. While this policy is sound, it has also
resulted in new public law boards being established almost as quickly as
they are closed, with a constant flow of cases. With the exception of
cases withdrawn from the First Division and placed before a public law
board, most cases heard by a public law board are not over two years old
and often are even more current. This is particularly true of discharge
cases. It is not uncommon for a public law board to hear such a discipline
case within a year of the employee’s discharge. The expeditious handling
of cases has been the most significant accomplishment of public law
boards.
E. Over-All Operations—Some of the reservations expressed by the
carriers to congressional committees about public law boards have
proven true while some have not. It is unquestionably true that the
number of public law boards has constantly increased each year since
1966 with an increasing number of claims being filed with these boards.
The cost of administering these boards has accordingly increased, as well
as requiring the NMB to limit the number of referee days that may be
utilized for Section 3 grievance adjudication. Nevertheless the increased
volume of activity has not, thus far, caused the public law board
machinery to break down as carrier representatives predicted. It is also
true that, because of their diversity, public law boards have rendered
varying interpretations on the same or substantially the same rule on
different properties.
On the other hand, the carriers’ concern that the parties would be
bound up in endless disputes in negotiating agreements to establish these
boards has not come to pass. While it is true that there have been such
disputes, the device of procedural boards has expeditiously resolved
them. In recent years, there has been a lessening in the use for these
procedural boards. Nor have these boards been rendered ineffective
because of the inability to staff them with competent neutrals, or, for that
matter, with available partisan members. The NMB has a large roster of
competent neutrals who are willing to accept appointment to these
boards. While the organizations at times may not have sufficient
international officers available to serve on these boards, many general
chairmen have proved equal to the challenge. These chairmen may not
possess the international officer’s overall comprehensive grasp of work
rules and contract discipline procedures, but they are exceedingly
knowledgeable about their own schedule and its application on their
property. Hence they have been competent both as advocates and
partisan board members. The same observations are true about carrier
26
Grievance Adjustment in the Railroad Industry
representation on the local level. After ten years of public law boards,
neither the organizations nor carriers believe that their cases are being
less competently handled at the public law board level than before the
adjustment board.
The most concrete evidence of the favor with which public law
boards are regarded is that many of the non-operating crafts, which
heretofore have not utilized public law boards in great number, are now
starting to rely on this mechanism. Up to now it has been primarily the
operating crafts, because of their dissatisfaction with the First Division,
that have been exponents of public law boards. The crafts represented on
the other three divisions have always been relatively current in their case
output. Consequently, with the exception of the Brotherhood of Railway,
Airline & Steamship Clerks, these organizations, because they have
limited resources, have tended to continue to use the Adjustment Board.
Recent data show a new trend developing; the non-operating crafts and
several shopcrafts are beginning to resort to public law boards in
increasing numbers.
F. Finality—The second major objective of the 1966 amendments
was to assure the finality of awards rendered under the Act. Prior to these
amendments, the Act stated that “the awards shall be final and binding
upon both parties to the dispute.”29 The Act also provided that in the
event the carrier did not comply with an order of a Division of the
Adjustment Board, the petitioner could apply for relief in the approprivate Federal district court. 30 Prior to 1966, the Act read: “The findings
and order of the division of the adjustment board shall be prima facie
evidence of the facts stated therein.”
Before 1966, a carrier who disagreed with a rendered award would
refuse to comply therewith. The organization had the choice of letting the
award go unenforced or bringing suit in the Federal district court. When
such suit was brought, it was tried de novo. Another remedy available to
the organization prior to 1956 was to threaten to or actually strike a
carrier to get an award enforced.
Before the U. S. Supreme Court decided the Chicago River case,31 it
was not uncommon for an organization to file “strike dockets,” which
meant that if these dockets of claims were not settled to the
organization’s satisfaction it would issue and honor a strike call against
the carrier. In 1949, there were a number of Presidential Emergency
Boards established to cope with threatened strikes over grievances that
were within the jurisdiction of the First Division.
In the Chicago River case, the BRT threatened to strike over 20
pending grievances on the property. When the National Mediation Board
27
The Railway Labor Act of Fifty
was unable to settle the dispute, the carrier then proceeded to docket
these grievances with the First Division. The BRT promptly struck the
carrier. The carrier moved to enjoin the strike and to compel the union to
rely exclusively on the adjustment board for the resolution of these
pending claims. The Supreme Court sustained the injunction, holding
that Congress had intended Section 3, First, to be a mandatory,
comprehensive and exclusive system for resolving disputes over
grievances and claims. 32
The 1966 amendments also provided that awards of public law
boards shall be enforceable in the Federal district courts in the same
manner as awards of the adjustment board. The overall effect of the 1966
amendments was to limit the courts’ power to review awards rendered by
the NRAB and public law boards, and to require the courts to apply the
same standards for reviewing awards under the RLA as the courts apply
to arbitration awards rendered outside the railroad industry. The U.S.
Circuit Court of Appeals for the Fifth Circuit construed the 1966
amendments with regard to the courts’ power to review any arbitration
award or a decision of an administrative agency. It held the power of
judicial review was limited to awards which had no foundation in reason
or fact, and held that awards could not be overruled because the court’s
interpretation of the contract language was different than that of the
arbitrators’. The court concluded that the parties had bargained for the
arbitrator’s construction of the contract rather than the court’s. 33
Summary and Evaluation
Analysis of the overall working of railroad grievance adjudication
machinery leads to somewhat ambivalent conclusions. The record shows
that the existing procedures, especially since the 1966 amendments, have
resulted in disposition of most claims and grievances with greater
dispatch than was formerly accomplished by the Adjustment Board,
particularly the First Division. This grievance machinery has also
maintained industrial peace in the industry. There have been no labor
disputes resulting in work stoppages, illegal or otherwise, in recent years
as a result of “minor disputes.” On the other hand, the problem of
grievance proliferation remains.
The original 1926 Act failed to meet the objectives of its adherents in
the area of minor disputes because the adjustment boards thereunder
could only be established by consent of the parties. Since many of the
crafts at that time lacked sufficient strength to compel the carriers to
establish such boards, these crafts could not get boards established. Even
those crafts in train and engine service, which possessed the requisite
28
Grievance Adjustment in the Railroad Industry
power to have boards established, soon discovered that there was no
institutional method for breaking deadlocks other than resorting to strikes
or threats of strikes.
The 1934 amendments to the 1926 Act did establish a nonconsensual national board with statutory means for breaking deadlocks.
However, the adjustment board, in its most important division, was, for
over 30 years, never able to resolve expeditiously the volume of cases
docketed with it. For this and other reasons, it was surrounded by
controversy almost from the very day it began operations. Protest about
the operation of the First Division were carried as far as the desk of the
President of the United States with little or no success. The elimination
of the crushing backlog of the First Division was not achieved until
public law boards started to function under the 1966 amendments. There
is no longer any substantial backlog at the First Division, and it no longer
takes from five to seven years to resolve a pending case. However, a
haunting spectre still looms as to whether the public law boards will also
break down under an excessive weight of docketed cases.
It is beyond cavil that the volume of cases filed with the First
Division effectively prevented it from operating as its legislative
proponents hoped it would. Even if there had not been the problems of
lack of precedential awards, personality conflicts among the members, or
gaps and interruptions in its operations, the First Division would not
have been able to cope effectively with its volume.
The 1966 amendments have done nothing to stem the flood of cases
into existing machinery. In fact they have done the very opposite. At the
end of 1975 there were 21,447 pending cases distributed among public
law boards, special boards of adjustment and the four divisions of the
National Railroad Adjustment Board. This is larger than the volume of
docketed cases existing at any time in the past. There is no indication that
there will be any diminution in the flow of cases to public law boards. If
anything, there is some indication that the non-operating crafts which up
to now have generally not used these boards are starting to resort to them
in place of the NRAB.
These current developments make it difficult to justify the continued
existence of the First Division, despite the fact that its members are
skilled advocates and extremely knowledgeable in the work rules of the
operating crafts. The United Transportation Union, the largest of the
operating crafts, is no partisan of the Division and has for the past several
years chosen to rely almost exclusively on public law boards. There is,
however, one small reason for maintaining the First Division. It
represents the only forum available to an individual employee who
29
The Railway Labor Act of Fifty
chooses to prosecute his own claim either in person or by a
representative of his own choice. In 1975, of the 930 claims docketed at
the Adjustment Board, 37 were filed by individuals. Thirteen of these
were at the First Division. These individuals have no recourse to public
law boards because the 1966 amendments are couched in such language
as to preclude the National Mediation Board from establishing a public
law board for an individual employee and a carrier. This is a good thing,
since proliferation would be limitless if individuals could require the
establishment of boards. But in any event, serving individuals does not
require the maintenance of a fully-staffed First Division. As an
alternative, some sort of administrative machinery could be devised,
perhaps under the aegis of the executive secretary of the adjustment
board, to provide a channel or forum for the few individuals who might
seek to prosecute their own claims.
The frequently advanced contention that only awards by the
adjustment board have industry-wide acceptance lacks merit. If that were
true, then many of the problems arising from the lack of precedential
awards in the industry during the past several decades would not have
arisen. It is also difficult to justify rationally the data submitted to
congressional appropriation committees which indicate that the
adjustment board with approximately 7% of the present case load used
23% of referee salary money in fiscal 1975.
A basic question still to be answered, notwithstanding the growth
and popularity of public law boards, is whether the existing machinery
can continue to function effectively. At present, there are over 12,000
cases docketed with public law boards. The National Mediation Board,
since July 1975, has found it necessary for lack of funds to restrict the
number of referee days per month that may be worked on Section 3
cases. Despite this, there is no indication that Congress will appropriate
more referee money or that the public law board case load will decrease.
In order to insure that the existing administrative machinery remain
viable and the existing case load manageable, it is evident that the parties
must institute some sort of screening techniques to eliminate cases that
do not warrant being prosecuted at the terminal step. One suggestion is
that the parties attempt to settle more claims on the property, perhaps by
vesting more authority in local superintendents and local chairmen. The
view has been expressed that there is too much centralized authority
regarding settling of claims in the headquarter’s office. Another
technique that might be employed is to assign more personnel at the
Grand Lodge level to review carefully all cases before they are submitted
to public law boards. To some degree the Brotherhood of Locomotive
30
Grievance Adjustment in the Railroad Industry
Engineers and the Brotherhood of Railway and Airline Clerks have
followed such a technique. It is believed that such methods will be of
limited value however.
It is impossible to avoid considering the most effective screening
device known to arbitration, namely, requiring that the parties undertake
or share the costs of the arbitration process. In the past, the carriers have
stated to legislative committees that they had no objection to this costsharing concept. The organizations, however, have been long and firmly
opposed to any concept of cost-sharing.
Railroad labor organizations contend that they are the only labor
groups required by a U.S. Supreme Court decree to submit to
compulsory arbitration for minor disputes. They state that the Chicago
River decision has denied them their right to resort to self-help, but
instead has mandated that they must utilize the Section 3 machinery to
resolve disputes arising out of the application or interpretation of existing
contracts. They further state that since they are forced to invoke the
prescribed governmental machinery, it is manifestly unfair to make them
pay for using this compulsory machinery.
The rejoiner to this plea is that the railroad organizations are not in
any different posture than 99% of American labor unions in not being
allowed to strike over minor disputes. Through the evolution of
collective bargaining during the past 40 years, unions have requested and
obtained contractual grievance/arbitration provisions in return for
granting employers contractual no-strike pledges. Today, virtually all
non-railroad unions are contractually constrained from striking over
minor disputes or grievances. The U.S. Supreme Court in the Boys
Market case34 held that an injunction would issue to restrain a strike
where there was existing arbitration machinery and a no strike pledge.
Railroad unions are in the same legal posture vis-a-vis striking over
minor disputes as their nonrailroad brethren, except that they arrived at
the same destination via a different route. It is also not inappropriate to
observe that both the carriers and organizations have importuned the
Congress during the past half century for legislation, inter alia, to deal
with grievance adjudication. Parties who are the beneficiaries of special
legislation should not be surprised or disappointed to discover that they
have to run the judicial gauntlet, i.e., having such legislation interpreted
by the courts, and that the outcome of judicial interpretations may not
always be what the proponents of the legislation initially envisioned.
Such is the nature of judicial review.
When we look at the impact of sharing arbitration costs on the
volume of cases going to arbitration, both inside and outside of the
31
The Railway Labor Act of Fifty
railroad industry, the conclusion is inescapable, that cost-sharing is an
effective device for making the parties screen cases before proceeding to
the terminal step of arbitration. The favorable experience of the
Burlington Northern Railroad and the Long Island Railroad with a
declining case load when the parties share equally in the costs of
arbitration has already been noted. The airline industry, although it could
have had the Federal government pay referees’ fees and expenses, has
never chosen this option and has shared the costs of administering
system boards of adjustment. A 1970 study, made by the Air Transport
Association, of grievances appealed to either a three- or five-man system
board of adjustment, the terminal step of grievance adjudication in this
industry, showed a proportionately smaller number of arbitration awards
rendered in this industry compared with the railroad industry.
Twenty airlines, employing 20,716 flight deck personnel received 56
awards out of 438 cases filed and pending during 1970. Flight deck
personnel are comparable to engineers and firemen (engine service
personnel) in the railroads. As of December 31, 1975, 1,284 awards had
been rendered during that year in the railroad industry and there were
8,626 cases pending for these two crafts before the Adjustment Board,
the special boards of adjustment and public law boards. It is believed by
informed persons in the airline industry that the 1970 experience has not
changed except for some increased arbitration activity among flight
attendants in the last few years.
Another example of the limited use of arbitration machinery where
the parties themselves share costs can be gleaned from the data of the
General Motors-United Automobile Workers’ Umpireship. In 1974,
there were 214,793 grievances filed, of which 1147 were processed to
arbitration, resulting in 44 awards. This case load is handled by one
umpire and an assistant.
When we analyze the study data for the airline mechanics and related
personnel, roughly comparable to shop craft personnel in the railroads,
they show that the same twenty airlines employed 48,872 such personnel.
There were 330 awards rendered out of 5,222 cases pending and filed
during 1970. The 1975 data for the shopcrafts reveal 254 awards
rendered with 329 cases pending before all Section 3 tribunals. In short,
it seems apparent when one looks at comparable crafts in the railroad and
airlines industries that the airline method of paying for its own grievance
arbitration generates far fewer awards.
Another factor which might contribute to a reduction in the railroad
case flow is attitudinal. The parties’ perception of the purpose and
objectives of arbitration might bring about a change in the number of
32
Grievance Adjustment in the Railroad Industry
cases processed. In outside industry the parties generally look upon
arbitration as a tool to assist them in administering their contract. They
recognize that, in negotiating and drafting the agreement, ambiguities
and uncertainties can creep into the language of the document. A
legitimate function of arbitration is to resolve these ambiguities so that
the agreement can be applied in accordance with the intent of the
contracting parties. In the railroad industry, one or the other of the parties
seems to be waiting to catch the other committing a breach of the
agreement. If the organization discovers the violation, then the carrier
must pay some employee an extra day’s pay. The grievance machinery is
regarded as a collection agency rather than as a means to assist the
parties in administering the agreement in accordance with their intent. In
days gone by, organization officials often would proudly relate to
referees, among others, the amount of money they had collected due to
awards of the several divisions of the Adjustment Board, and even
carried around photostatic copies of checks representing large back
payments. Inculcating an attitude that arbitration is to be invoked only
when it is necessary to get assistance in administering the contract could
be a factor for reducing the case flow.
A third method for reducing case flow would be to accept awards as^
having precedential value. The winning party is always willing to do’
that vis-a-vis that particular award. The losing party will frequently seek
to find another referee whom it hopes to persuade to reverse the prior
award. As a result, issues are seldom finally settled. The parties are not
accustomed to accepting awards unfavorable to them and later trying to
negotiate an agreement to negate the effect of that award. The parties
prefer to engage in perpetual advocacy by shopping around for referees
who might reverse or modify an undesirable award.
A last suggestion for reducing the inflow of cases would be to
attempt to make it more difficult to docket claims with a public law
board or any other tribunal. The moving party might be required to file a
certificate averring that every effort has been made to resolve the cases
on the pending docket. It cannot be denied that the ease with which the
parties now can get a public law board established is conducive to
building up backlogs. The railroad industry is described as a depressed
industry. Employment has been declining for many years. Dividends and
bond interest payments are non-existent for many carriers. A significant
sector of the industry operates only with the assistance of the U.S.
Treasury. The only growth sector in the industry is in the number of
claims and grievances filed. Without abridging or curtailing the
appropriate contract rights of the parties, the long-term interests of all
33
The Railway Labor Act of Fifty
might be best served if less time and money were devoted to endless, and
in some cases needless, grievance adjudication, and more efforts were
dedicated to renegotiating and revising agreements and schedules to
bring them up-to-date. Mutual distrust now leads to retention and
reprinting of 1924 or 1954 schedules because the parties fear that
eliminating obsolete sections or parts of the agreement will somehow
militate against their interests. Useful as it may be, grievance
adjudication is over-emphasized in the railroad industry. The parties
would be better served if they diverted their considerable talents to
constructive channels rather than trying and retrying cases which in
many instances are of little significance and do not warrant the
expenditure of effort and resources devoted to them.
__________
*Arbitrator
1. General Order No. 13 creating Railway Adjustment Board No. 1, March 28, 1918;
General Order No. 29 creating Railway Adjustment Board No. 2, May 31, 1918;
General Order No. 53 creating Railway Adjustment Board No. 3, November 13,
1918.
2. Monograph 15, Attorney General’s Committee on Administrative Procedure, 1940,
p. 3.
3. Section 3, First.
4. Memorandum of Agreement, dated April 4,1928, establishing Board, Section 16(a).
5. Speech of Dean Garrison before Academy of Political Sciences, November 12,
1936, Inquiry of Attorney General’s Committee on Administrative Procedure
relating to National Railroad Adjustment Board, Vol. II, p. 107.
6. 73rd Congress, Hearings on S. 3266, April 10, 1934, p. 15. 214
7. Ibid., April 12, 1934, p. 67.
8. P. L. 234, April 7, 1970, reduced total membership to 34 and First Division
membership from 10 to 8 as a result of the merger of BRT, ORCB, BLFE and
SUNA.
9. National Mediation Board, First Annual Report, 1935, Appendix “A”, p. ‘43.
10. Section 3, Second.
11. Monograph 15, p. 58.
12. Mr. Chesser’s prepared statement, pp. 4-5.
13. Report sent to President Truman, August 31, 1945.
14. Monograph No. 15, p. 138.
15. Inquiry of Attorney General’s Committee on Administration Proceedings Relating to
National Railroad Adjustment Board, Vol. I, p. 16.
16. Elgin, Joliet & Eastern Railway v. Burley et al, 325 U.S. 711 (1945).
17. Page 6 of his prepared statement.
18. Testimony of G.R. Johnson, Proceedings, Hearings held before Subcommittee on
Transportation & Aeronautics, Committee on Interstate & Foreign Commerce, July
22, 1964, Vol. 2.
19. Article XII, Agreement, The Great Northern Pacific and Burlington Lines for
Protection of Employees Represented by Brotherhood of Railway and Airline
Clerks.
20. Article XI, May 26, 1968 Agreement.
34
Grievance Adjustment in the Railroad Industry
21. Statement before Subcommittee on Transportation & Aeronautics of Interstate &
Foreign Commerce, June 8, 1966, p. 5.
22. Exhibit 7 attached to Mr. Chesser’s Statement
23. Statement before Subcommittee on Transportation & Aeronautics of the Committee
on Interstate and Foreign Commerce, June 9, 1965, p. 14.
24. Statement before Subcommittee on Transportation & Aeronautics of the Committee
on Interstate and Foreign Commerce, June 9, 1965, p. 15.
25. Exhibit #1, attached to Mr. Wolfe’s June 9, 1965 Statement.
26. National Mediation Board, Forty-First Annual Report, 1975, Table No. 7.
27. Ibid., p. 3.
28. Ibid.
29. Section 3(m).
30. Section 3(p).
31. Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Co., 353
U. S. 30 (1951).
32. SR-101, March 25, 1937.
33. Brotherhood of Railroad Trainmen et al. v. Central of Georgia Railway Company,
415 F. 2d 403 (1969).
34. Boys Market v. Retail Clerks, 398 U. S. 235 (1970).
35
The First Fifty Years
CHAPTER IX
THE FIRST FIFTY YEARS—AND THEN?
Charles M. Rehmus
It seems that fifty years is none too short a perspective from which to
view the effectiveness of a statute, and certainly one in as volatile a field
as labor relations. Critical evaluation of the Railway Labor Act has
swung widely during its life; first pro, then con, then varied.
Initial impressions based on favorable experience were optimistic.
Writing as early as 1931, a prominent analyst stated that “The Act has
now been in effect for four years and has apparently worked well. While
no one can predict what the future will bring, we seemingly have devised
1
the best method of dealing with railroad labor disputes yet devised.”
Such favorable evaluation continued after the major 1934 amendments.
Secretary of Labor Frances Perkins testified before a Congressional
committee in 1937 that “The Railway Labor Act embodies the fullest and
most complete development of mediation, conciliation, voluntary
agreement and arbitration that is to be found in any law governing labor
relations” and that the Act “is an outstanding example of effective
administration of a labor law.” 2 In 1939, the National Mediation Board
(NMB) reported to Congress that the nation had been able to count on
“transportation service free from interruptions due to labor troubles, all
as contemplated by the Railway Labor Act.” 3 In 1941, and again as late
as 1946, both a student and a practitioner of railroad labor relations
continued to characterize overall experience under the Act as “highly
successful.”4
New and more critical voices began to be heard after World War II,
based primarily upon experience during the war and immediately
thereafter. One observer concluded in 1948 that “The Railway Labor
Act, far from being a ‘model’ law, should be thoroughly recast.”6 In 1950
the NMB’s Annual Report viewed recent developments in railroad
collective bargaining with considerable concern.6 In a book-length study
of railroad bargaining and the operation of the Act published in 1954,
Jacob J. Kaufman concluded that “the reasons for the breakdown of
collective bargaining in the railroad industry stem from the
7
administration of and operations under the Railway Labor Act.” Such
1
The Railway Labor Act at Fifty
criticism abated somewhat in the later 1950’s only to break out again in
the 1960’s. At a panel discussion on the Act held at the 1965 National
Academy of Arbitrators meeting, neutral comment was uniformly
hostile. Interestingly enough, railroad labor and management
representatives present supported the Act.8
The 1960’s reflected further mixed commentary on the Act.
Benjamin Aaron, for example, concluded that while emergency board
procedures were “formal, cumbersome, expensive and unproductive,”
they nevertheless “have usually provided the basis for the eventual
settlement.”9 Another commentator found it hard to explain the almost
overwhelming negative scholarly comment in the light of the data which
showed a generally favorable or at least satisfactory performance for the
Act in preventing strikes. 10 As a reflection of the gradual emergence of a
more balanced or at least varying view, four articles published in 1970
and 1971 divided equally over the Act’s effectiveness. Two of the
perennial critics of the Act had not changed their opinions.” Two
commentators who had more recent experience with the Act’s
procedures believed that they had functioned as well or better than could
have been expected given the unusually difficult problems negotiators in
the railroad and airline industries had faced during the 1960’s. 12
Perhaps it is only now, almost fifty years to the day since the
Railway Labor Act was enacted and signed into law, that we can attempt
a balanced appraisal of its strengths and weaknesses, its successes and
continuing problems. This length of time has permitted certain
fundamental variables to average out. Labor-management relationships
generally are affected by long-term fluctuations in the nation’s business
cycle as well as by 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 both
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 law’s administrators put their own judgments, and these too affect the
behavior of those who are regulated. This is peculiarly true of a law such
as this which combines administrative rule-making and mediation—
decision and persuasion—in the same individuals. Variations in
judgment and style among members of the National Mediation Board
should, by this time, have worked themselves out. In short, time, as much
as two generations, appears to have been needed before the present
appraisal of the Railway Labor Act was possible. Edwin Witte, one of
the original commentators on the Act, noted our common lack of
foresight. But enough time has now passed so that we should at least no
2
The First Fifty Years
longer be blinded by a few bitter disputes and can perceive the whole
forest of long-term operation. From this, an approximation of the
probable future of the Act can be made.
Anyone familiar with the critical commentary summarized above—
both pro and con—must have noted that for the most part both praise and
blame of the Act revolved about its efficacy in encouraging the parties to
resolve their own collective bargaining disputes and whether or not this
occurred without interruptions in railroad and airline service. Although
these issues are undoubtedly the most critical of the Railway Labor Act’s
purposes, it did have others. Section 2 of the original 1926 statute set
forth the Act’s five basic purposes as follows:
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, or working conditions.
5. To assist in prompt settlement of disputes or
grievances over interpretation or application of
existing contracts.
Any thoroughgoing evaluation of experience under the Act must
consider its effectiveness in accomplishing all of these five purposes.
Although the order followed differs from those above, the sections which
follow summarize briefly the conclusions of the authors of the preceding
chapters with respect to these objectives. My own overall conclusions
follow theirs.
The Right of Independent Organization
As originally enacted, the Act admonished labor and management to
respect each other’s free choice of representatives. But the original
National Mediation Board had no express authority or administrative
machinery to resolve employee representation disputes. The Board did
attempt to mediate some such disputes, but with little success,
particularly in situations involving company-dominated unions.
As detailed in Chapter II, the 1934 Amendments to the Railway
Labor Act for the first time provided administrative authority and a
mechanism for the resolution of railroad and airline representation
disputes. The NMB was authorized to investigate any representation
dispute and to certify to the contesting unions and the carrier involved
the organization to be the authorized and designated bargaining
representative. Further, the Board was expressly authorized to make a
3
The Railway Labor Act at Fifty
determination through secret ballot elections or other appropriate means,
such as a check of authorization cards, to ensure that employees had
exercised an uncoerced choice of representatives.
Under these provisions, 550 company unions were replaced by
national unions on 77 railroads. Although in a few 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. Since that time the Board’s function
in connection with railroad representation has largely been to resolve
conflicts between competing unions through determination of eligible
voters, designation of craft or class bargaining units, and the certification
of representatives. In this role, the courts have largely deferred to the
Board’s exercise of administrative authority. Some have challenged this
deferral, particularly because it meant that the Board continued to certify
unions that had long before institutionalized racial discrimination in their
internal structures or bargaining agreements.13 The Board did, however,
always reject divisions of crafts or classes which were specifically
designed to reflect racial discrimination. In general, the Board was no
more laggard in actively promoting racial equality than many other
Federal administrative agencies prior to the Supreme Court’s decisions
outlawing discrimination that came down in the 1940’s and 1950’s.
Over the years, the NMB has formulated on a case by case basis
criteria generally applicable to the determination of “craft or class” as the
unit for employee representation. In general, a history of employee
organizations and prior bargaining agreements will weigh heavily in craft
or class determinations unless it runs counter to a general practice
throughout the industry. In the absence of such organization and
bargaining history, the Board generally emphasizes similarity in duties
and work content among employees, placing them in bargaining units
where there is a “community of interest between jobs.” Over the years,
the Board had decided hundreds of such issues, ordinarily on an ad hoc
basis, and as noted, without interference from the courts. For some years
craft or class controversies have been minimal in the railroad industry
and representation disputes among railroad employees have presented
few new or controversial problems.
In recent years, the locus of labor representation disputes under the
Act has shifted to the airline industry. There were no generally
recognized crafts or classes in the industry when the Act was first applied
to it in 1936 except, of course, that of the pilots themselves. In fact, aside
from an issue over the appropriate representation of flight engineers,
craft or class determinations among flight deck employees and flight
attendants were for many years uneventful. More recently, the right to
4
The First Fifty Years
represent flight attendants has been contested between unions on several
airlines, but the craft involved is clear.
The only controversial and still unsettled question involving
representation under the Act persists among fleet and passenger service
employees in the airline industry. At the present time, the craft or class
concepts involving clerical, office, fleet and passenger service
employees, originally borrowed from the railroad industry, have had to
be abandoned as appropriate for application in the airline industry. The
final direction that representation disputes involving these groups of
employees will take is not clear. It undoubtedly will be worked out on a
case by case basis during the next decade.
In summary, the Railway Labor Act procedures have satisfactorily
resolved all representation disputes in the railroad industry and all such
disputes involving flight employees in the airline industry. The
remaining problem area is being resolved. It is safe to conclude that the
overwhelming bulk of employees desiring representation in the railroad
and airline industries are represented by unions of their choice, a choice
that has been made free of coercion or interference. In the context of
contemporary union-management relations this may not appear to be a
major victory. When viewed in the light of the situation as it existed in
the 1920’s and early 1930’s, however, it is a major victory for industrial
democracy.
Assistance to the Parties in Negotiations
The heart of the Railway Labor Act is the duty imposed upon both
carrier and employee representatives to exert every reasonable effort to
settle their own disputes concerning rates of pay, rules and working
conditions. Contrary to widely expressed if uninformed opinion,
collective bargaining under the Railway Labor Act is extensive, is
largely independent of third party intervention, and is ordinarily
successful. Chapters III and IV make clear the contributions and
successes of collective bargaining in each industry.
There are over 7,000 collective bargaining agreements in effect in
the railroad and airline industries. Of these, perhaps 1,000 railroad
agreements and 200 airline agreements may be involved in negotiations
during any given year. Most of these negotiations are, of course, local in
nature and the settlements made apply to individual railroads and air
carriers or, not infrequently, smaller sub-units of a rail carrier such as a
particular division or terminal. Bargaining on general wage adjustments
and so-called national rules takes place on an industry-wide basis in the
railroad industry and on an individual carrier basis in the airline industry.
5
The Railway Labor Act at Fifty
Even in these major negotiations, however, the parties on both sides of
the bargaining tables seem just as capable of resolving their own
negotiations as negotiators in industry generally. When an industry and
its unions have become newsworthy as a result of unusual difficulty in
settling a particular dispute, such as those involving railroad firemen or
airline flight engineers in the 1960’s, it is because the issue of potential
displacement of all or most of a whole craft is tremendously difficult to
resolve, not because the negotiators are peculiarly incompetent.
The major governmental assistance provided to negotiators in
railroad and airline collective bargaining is neutral mediation. In this
respect, rail and air negotiators are no different than those in other
industries who are proffered mediation services under the National Labor
Relations Act. Although the statistics published by the NMB and the
Federal Mediation and Conciliation Service (FMCS) have hitherto made
direct comparisons difficult, recent data suggests that mediation is about
twice as effective under the Railway Labor Act as under the National
Labor Relations Act in helping create peaceful settlements.
This seems to occur because in one important respect the mediation
function provided by the NMB is different from that provided by the
FMCS. Mediation under the Railway Labor Act is often characterized as
“compulsory mediation.”14 As emphasized in Chapter III, this does not
mean that the parties being mediated are compelled to make a settlement.
Instead, the compulsion lies in the procedures of the Act which require
the parties to continue mediated negotiations without resorting to
economic force until the Board decides that further mediation and
negotiations would be fruitless. This special characteristic of mediation
under the Act—that the process may at times be continued far longer
than rail and air negotiators deem worthwhile—probably has a
fundamental impact on the general maintenance of industrial peace in
these two industries.
The foregoing is not to suggest that the techniques used by the staff
mediators of the NMB are in any way different from those used by the
staff mediators of the FMCS. Mediation, whether science or art, is not
esoteric. The techniques of persuasion, proffers of compromise, and
suggestion’s for new and alternative approaches to problems when
offered by an honest and skillful neutral are appropriate to help resolve
labor disputes in whatever industry negotiating problems arise. The
importance of mandatory mediation under the Railway Labor Act is
rather that it provides options in the railroad and airline industries
sometimes unavailable in other industries. For example, it allows
international unions indirectly to exercise a degree of restraint on local
6
The First Fifty Years
leadership or membership desiring a premature strike. In other situations,
it allows the NMB to decide that the interests of good faith bargaining
would be best served by continued months of negotiations, even though
the parties disagree. Under certain special circumstances, it can even
create a kind of “agreement by exhaustion.”
Some commentators have condemned these procedures and the
power resulting from the Board’s ability to hold the parties in mediation
beyond their desire: Such criticism ignores the fact that, as emphasized in
Chapter I, while Congress mandated the parties to use every voluntary
means to avoid interruptions in the flow of commerce, Congress did so
only after the parties themselves agreed upon and proposed the
procedures by which this should be accomplished. Under the Act
industrial peace was to be sought and achieved, not by forbidding strikes,
but by requiring the parties to remain in mediated negotiations for
unusual lengths of time in an extraordinary effort to reach voluntary
agreement. Criticism of the Act based upon the delays attendant on
mediation under it overlook the very purposes and underlying
assumptions of the Act itself. This is not to suggest that there are no
circumstances where a greater number of skilled mediators on the staff of
the NMB might expedite the peaceful settlement of certain disputes. It is
simply to reassert that the parties themselves agreed that mediators of the
Board should have such extraordinary powers as an aid to fulfilling the
obligations to which the parties voluntarily subscribed.
Assistance in Grievance Settlement
As discussed in Chapter VIII, the machinery created by the original
Act of 1926 to adjust grievances arising under negotiated agreements
was an almost total failure. The national unions favored national boards
of adjustment similar to those administered by the government during
World War I while the carriers, in order to strengthen company unions,
were equally determined to maintain whatever grievance procedures
existed at the individual carrier level. The 1926 statute left it up to the
parties to agree on grievance procedures at either the national or
individual carrier level. As a consequence, the parties were usually
unable to agree on any procedure. This failure to mandate a uniform
system for the settlement of grievances was not remedied until the 1934
amendments to the Act.
The 1934 amendments created a National Railroad Adjustment
Board (NRAB). The NRAB functions through four divisions which
divide the various classes of railroad employees into four groups for the
purpose of grievance adjustment. The mechanism provided in the Act
7
The Railway Labor Act at Fifty
required the government to pay the major cost of grievance adjudication
in the industry. At least in part because of this, the resulting proliferation
of grievances quickly led Division One, which covered train and engine
service employees, to fall behind in its docket. It has never in any real
sense caught up. The Third Division has been behind from time to time
but generally has kept its case load fairly current. The Second and Fourth
Divisions cover fewer employees and have created little problem.
So far as the First Division is concerned, there is general agreement
that the system has been unsuccessful, although individuals and
organizations differ in their attribution of reasons for failure. General
neutral opinion is that the system of government payment for arbitration
has been disastrous. Despite repeated commitments over the years, the
labor organizations have done far less screening of grievances than is
common in industries where the union and company share the cost of
arbitration. Partisan members representing both carriers and unions have
for many years been reluctant to accept prior awards as precedents.
Instead, they have relitigated issues time and again, a habit which has
done nothing to reduce the case load. As a consequence of the failure to
keep the First Division’s docket current, alternate forums have been
established over the years. At the present time the most important of
these alternatives to the NRAB are the so-called public law boards which
have been created under the 1966 amendment to the Act. This
amendment permitted the establishment of boards of adjustment on
individual railroad properties at the request of either party. However, the
public law boards still provide the parties with free arbitration service.
As a consequence, the immense backlog of the First Division has simply
been shifted to the public law boards. By the end of 1975 there were over
21,000 grievances pending before public law boards, special boards of
adjustment, and four divisions of the NRAB. This is a larger volume of
docketed cases than has existed at any time in the past fifty years.
Despite union resistance to the idea, most neutral observers have
concluded that this overwhelming volume of unresolved grievances,
many of little merit and the meritorious among them inevitably and
inequitably delayed, will not be alleviated until such time as the parties
in the railroad industry are forced to pay their own costs of arbitration.
The 1934 amendments to the Act authorized the NMB to establish a
National Air Transport Adjustment Board to resolve grievances in the
airline industry. Presumably, such a board would have functioned in the
same manner as the NRAB. Fortunately, however, by the time collective
bargaining became prevalent in the airline industry the experience of the
NRAB was sufficient to persuade the Board and the parties that a
8
The First Fifty Years
national board in the airline industry would be inexpedient. As a result,
individual carrier system boards for the resolution of grievances paid by
the parties themselves are the norm throughout the airline industry.
The railroad precedent and the language of the Act did significantly
affect the type of grievance arbitration machinery which the airlines and
their unions established. Almost without exception, the industry
agreements provide for each air carrier and their employee unions to
appoint either one or two members to a system board. If the partisan
board members are unable to agree, or in some cases initially, the parties
appoint a neutral. Only rarely have the parties to airline negotiations
resorted to arbitration by a single neutral. Their reluctance to do so is
probably sensible in an industry whose “operations are often complex,
with a unique nomenclature, and with collective bargaining agreements
covering a unique set of work rules. Given these parameters, as noted in
Chapter IV, the advantages of single member arbitration—more rapid
decisions and lower costs—must be balanced against the special
expertise that the partisan system board members contribute to the
education and better understanding of many airline neutrals. In any
event, the largely favorable experience with individual carrier system
boards in the airline industry provides further evidence, if any is needed,
that a similar system would be desirable in the railroad industry.
Intervention in Negotiating Impasses
It is clear that the controversy over the effectiveness of the Railway
Labor Act outlined in the introduction to this chapter revolves primarily
about its efficacy in avoiding interruptions to commerce. In the event the
parties are unsuccessful in settling issues between them in face to face
negotiations, even with the assistance of a mediator, the Railway Labor
Act provided two additional devices to prevent a possible work stoppage.
When the NMB concludes that further mediation would be unavailing in
a given dispute it endeavors to obtain the parties’ agreement to submit
the dispute to binding arbitration. If either rejects this proffer and a work
stoppage impends which would deprive a section of the country of
essential transportation services, the President may create an emergency
board to make nonbinding recommendations regarding the disputed
issues. The working through of emergency board procedures postpones
an impending rail or air strike for a period of 60 days, and often
somewhat longer. But if either of the parties rejects arbitration, or if the
dispute goes through emergency board procedures and is not settled
during the 30-day status quo period following the board’s
9
The Railway Labor Act at Fifty
recommendations, a work stoppage may occur. The Act is silent about
what should be done in this eventuality.
Voluntary Arbitration
Contrary to the assumptions of most critics of the Railway Labor
Act, the attempt of the NMB “to induce the parties to submit their
controversy to arbitration” is not invariably unavailing. The parties
accepted this proffer about 350 times between 1935 and 1975, the period
when the Act’s procedures covered both railroads and airlines.
Moreover, as discussed in Chapter V, these 350 occasions all involved
interest or “major” disputes. A number of grievance disputes that were
processed under Section 10 of the Act rather than submitted to the
NRAB are excluded from this total.
The extent to which carriers and labor organizations have agreed to
arbitrate interest disputes is both surprising and rather impressive. Some
60 different labor organizations, 152 railroad and terminal companies,
and 26 airlines have participated at least once in interest arbitration under
the Act. One air carrier, Pan American World Airways, has been
involved in 30 such arbitrations. Moreover, the unions which have
agreed to such procedures are by no means invariably small or without
economic power. They include the IAM (21 cases), the BRAG (48
cases), the BLE (21 cases), and the relatively new but powerful UTU
(already involved in 19 interest arbitrations).
The foregoing is not to suggest that voluntary interest arbitration has
been any panacea or that the parties have often been willing to submit
their most fundamental disputes to arbitration. Sometimes parties will
agree that all future disputes of one particular kind will be sent to
arbitration. For example, the BLE and the National Railway Labor
Conference agreed in 1971 to arbitrate future interest disputes over
switching limits and inter-divisional runs. The UTU and the NRLC
signed a similar agreement in 1972. Those agreements provided a means
for settling an issue which had disrupted negotiations for nearly two
decades; it hardly suggests a general willingness to take future disputes
of other kinds to arbitration. In the airline industry, in contrast, there is a
slowly emerging tendency to enter broader agreements to arbitrate all or
at least the next interest dispute dividing certain parties. Agreements
between Pan American World Airways and the Flight Engineers,
between National Airlines and the Air Line Employees Association, and
between Braniff Airlines and ALPA are three examples.
The parties have appeared willing to submit almost any kind of issue
to arbitration at particular times or under certain circumstances. All kinds
10
The First Fifty Years
of issues, including general wage increases, rates for particular jobs, a
large variety of fringe benefits, and almost every kind of dispute
involving work rules and working conditions have been settled by this
means. Though many such disputes were not of great importance to a
whole industry or even all employees of a given carrier, in a few cases
nation-wide disputes or those of great precedential impact have been
submitted to arbitration, In summary, voluntary interest arbitration has
played a far more important role in maintaining industrial peace between
rail and air carriers and the organizations representing their employees
than is generally realized. Its importance should not be overstated, but
neither should the extent of its use be unrecognized.
Emergency Boards
The basic emergency board procedures of the Railway Labor Act
have remained unchanged since 1926. Those who drafted and enacted
the Act clearly placed major reliance for the peaceful settlement of
bargaining impasses not resolved by mediation on the fact-finding
procedures embodied in Federal law for the first time in the 1926 Act. It
was generally expected that few such emergency boards would be
necessary, that their recommendations would deal with fundamental
issues in broad terms and that public opinion would force even the most
recalcitrant party to accept the board’s recommendations.
It is in this area more than any other that criticism of the Act has
been most telling. The critics have contended that the number of boards
created—almost 200 in fifty years, or about four “emergencies” a year—
necessarily proves that the parties and the government have not
administered the statute in the way the framers intended. In fact,
however, the incidence of emergency boards has fluctuated considerably
over the years. The bare average tends to obscure the special difficulty of
the issues confronting the parties during various periods, and the fact that
major improvements in the use of emergency boards have developed
within the last decade. This evolution has received careful analysis in
Chapter VI of this volume.
The first fifteen years of the Railway Labor Act, 1926-40, were the
years during which the statute won its early reputation as a model labor
law. Despite the real problems the parties faced during these years, most
of them depression years, the Act was largely effective during this
period. Collective bargaining consistently produced peaceful agreements
and emergency boards were used sparingly and effectively.
The second period for the RLA, one which led to growing criticism
of the Act’s usefulness in aiding orderly settlements, began with World
11
The Railway Labor Act at Fifty
War II and ended in the early 1950’s. During the wartime part of this
period the unions began the practice of using emergency board
recommendations as a basis for further employer concessions. A number
of these settlements were secured only after Presidential intervention.
This precedent, once begun, although justified at the time by the desire to
avoid wartime stoppages, proved difficult to reverse during the post-war
period which followed.
Beginning in about 1953 and through 1960, the emergency board
record again improved. Those who administered the Act began to refuse
to create emergency boards in threatened strikes over grievances, a
practice which had been frequent in the 1930’s and which was only
ended finally by the Supreme Court’s decision that grievance strikes
were subject to Federal injunction. 16 White House intervention favorable
to the unions declined. The carriers began to counter wage demands with
proposals for rule revisions to provide offsetting gains in productivity,
thus reducing union enthusiasm for board recommendations. Emergency
boards also began to accept previous industry settlements as patterns to
be followed. For all of these reasons, the period between 1953 and 1960
marked a second era when relatively few emergency boards were created
and those which were generally provided the basis for settlement.
The decade of the 1960’s was disastrous so far as the emergency
provisions of the RLA were concerned. Emergency boards were
appointed in a whole series of major disputes, but in significant numbers
of these, settlements were not achieved on the basis of the boards’
recommendations. This prompted another rash of Executive interventions
as well as an unprecedented need for congressional action to avoid or
halt rail strikes. This record certainly is not favorable. On the other hand,
the issues which confronted the negotiators in both rail and airline
industries, particularly those involving technological displacement, were
of unprecedented difficulty. The 1960’s were generally troubled in labor
relations throughout the U.S. economy, but rail and air negotiators had
more than their fair share of problems.
The most recent half-dozen years suggest that the situation has again
changed. Congress had to intervene in two disputes in 1971 and 1972,
but since that time emergency board recommendations have generally
provided the basis for the parties’ settlements. Moreover, as discussed in
Chapters III, IV, and VI, the parties themselves, sometimes with the help
of Federal mediators, have developed promising new approaches toward
problem settlement without other neutral intervention. Whether these
recent favorable developments in collective bargaining as well as
emergency board effectiveness in impasses are simply another wave in
12
The First Fifty Years
the cyclical pattern which has been characteristic of experience under the
Act, or whether they presage more permanent conditions is discussed in
the final section of this chapter. Certainly there are some elements in the
recent bargaining history of the two industries that permit cautious
optimism.
Airline and Railroad Strikes
The extent to which the original premise underlying the RLA is still
justified—that national or sectional railroad strikes of any length cannot
be permitted—is re-examined in Chapter VII of this volume. Since the
1936 amendments incorporating the airline industry presumably reflected
to some degree the same assumption, the strike record and strike impact
in that industry is also examined there.
The strike record in the airline industry is erratic but, at least in some
periods, airline strikes have been frequent. This fact is offset by another:
Strikes in the air transport industry seem to possess little if any
emergency potential. This is a function of two other circumstances.
Alternative modes for transporting most of the goods and people that
would otherwise move by air are usually available. Moreover, the
industry’s structure of single carrier bargaining along with duplication of
routes means that alternative air carriers are generally available even
during strikes against one. Recognition of these circumstances was slow
in coming. Emergency boards designed to prevent supposed
“emergency” airline strikes were common during the 1950s and the first
half of the 60’s. Since then, the government has made it clear to the
airline industry and its unions that threatened or actual airline strikes will
not result in the invocation of emergency procedures. The parties’
awareness of this has made recent collective bargaining in the air
transport industry subject to the same economic coercions and restraints
that characterize industry in general.
Railroad strikes, at least those which are national in scope, retain
their emergency potential. Despite the relative decline of the railroad
industry from its one-time position of unquestioned transportation
leadership, raid service is still essential. National rail strikes of more than
a few hours’ duration have a pervasive and accumulating impact upon
the national economy and on our national defense posture. Under these
circumstances, the original premise upon which the emergency
procedures of the 1926 Act was based is still valid and still justifies
special treatment of bargaining impasses in that industry.
Whether because of the parties’ own recognition of the deleterious
impact of rail strikes on the public or because the RLA procedures are
13
The Railway Labor Act at Fifty
considerably more effective than their critics would admit, the railroad
industry, although not by any means strike free, has considerably less
strike activity than other industries with which it might appropriately be
compared. Total working time lost through strikes against railroads is
one-third less than in the average of American industries. If corrected for
the exposure rate, the total number of railroad strikes is smaller than in
any other transportation mode or than in other strongly-unionized
industries. The only period during which these generalizations did not
hold true was the 1960’s, a decade of difficult bargaining and high
conflict. In summary, national rail strikes do pose a serious threat to the
economy of the United States. But during four out of the last five
decades this latent potential for harm has been more a threat than a
reality.
What of the Future?
Like most human and legislative endeavors, the Railway Labor Act
has both strengths and weaknesses. On balance and over time, however,
it seems to have been far more a success than a failure. On this basis
alone its future seems assured for some time longer.
One of the noteworthy things about the Act is the simple fact that it
has survived. Only one significant set of amendments to it has ever been
deemed essential, and this over 40 years ago. This is remarkable in itself,
given the fact that this period spans years of war and peace, boom and
depression, and the growth of the whole air transportation industry
which, along with the many other competitors, have substantially altered
the railroads’ economic position. A statute which has been sufficiently
flexible in structure and administration to accommodate without change
to modifications in external pressures of this variety and magnitude must
be deemed to have considerable value on that basis alone.
During some periods, the Act’s critics have been both numerous and
at least to some degree accurate. But it is also suggestive that they have
never included among them a significant number from the ranks of either
railroad or airline labor or management. Surely this cannot be explained
solely by pride of authorship or the desire for special treatment. Labor
and management, who wrote the Act and persuaded Congress to pass it,
do not now and have never desired to become subject to the general labor
laws. Only once have they even requested that major amendment be
made in the Act which governs them. While this fact alone does not
prove that the Act functions in the public interest, it places a heavy
burden on those who would abolish or fundamentally restructure it. No
time is a good time to disturb a collective bargaining structure
14
The First Fifty Years
satisfactory to those most fundamentally affected by it, certainly not
without the strongest proof of need.
A second general facet of the Act deserving of comment is the extent
to which it has been precedential. The Act itself and the 1934
amendments to it were very influential when Congress enacted our more
general labor law, the National Labor Relations Act of 1935.16 Further,
the Railway Labor Act has been the source of several important lines of
Supreme Court decisions affecting all labor relations and labor law in the
United States. Among these are holdings that asserted the obligation of
unions to represent all members non-discriminatorily,17 foreshadowing
what is now the general union duty of fair representation. 18 Another
Court decision under the RLA asserted that union members may be
required to provide financial support to their bargaining representative to
pay their share of the costs of representation. 19 Related to this decision,
the Court later required that such payments when made involuntarily
under a union security clause need not include the share of dues
expended by the union for political purposes.20 These latter decisions are
basic precedents in an issue now before the Court—whether public
employees may be required to make agency shop payments to the unions
representing them.21
Not a great deal can be added to the individual contributions in the
previous chapters of this volume. The procedures for determining
representation rights free of coercion of the employee or from
interference from the employer adopted under RLA became those
applied to , American industry in general. There are almost no major
representation issues remaining under the Railway Labor Act. The one
area of controversy remaining—the establishment of representation units
for certain airline ground service employees—is in the process of
resolution. Aside from its precedential significance, what is perhaps most
interesting about the representation system created by the Railway Labor
Act is the respect for craft integrity and craft union jurisdiction embodied
in the concept of “craft or class” representation. This was the equivalent
of a deed to their job given railroad workers.22 This concept, later known
as the “property right in the job,” received its initial legal sanction in this
Nation with the passage of the Act in 1926. The concept was reinforced
when rail labor and management negotiated the important precedential
settlement known as the Washington Job Protection Agreei .mt of 1936.
In later years, when whole crafts were threatened with displacement by
technological change, union attempts to maintain jurisdictional integrity
caused extremely difficult bargaining problems in both railroads and
airlines. Nevertheless, the concept of craft integrity and the legal sanction
15
The Railway Labor Act at Fifty
initially given it by the RLA have been the fundamental bulwark to job
security, probably the most deep-seated goal of all workers.
Collective bargaining in the rail and airline industries, though it has
its special nuances and problems resulting from the unique operating
characteristics of each industry, is conducted in a fashion not greatly
differing from that in other strongly-unionized American industries.
Most of the bargaining relationships are mature. For the most part the
parties know each other well and deal with each other on a reasonably
business-like basis. By and large each understands the motives and
objectives of the other; in some cases, they even sympathize with the
problems of their counterparts on the other side of the table and regret
their mandate of rigidity. In both industries negotiators have
successfully, although not without great difficulty, resolved the most
difficult of all collective bargaining issues—the technological
redundancy of whole crafts. To characterize the bargaining structure
created under the Act as an impossibility and rail and air management
and union negotiators as ineffectual, as some have, unduly minimizes the
extreme difficulty of the problems they have successfully resolved.
As in industry generally, the chief method of government
intervention in rail and air bargaining is mediation. The mediation
process under the RLA appears to be considerably more successful in
generating peaceful settlements—calculated on a rough “box score”
basis—than mediation in other industries. This may result in whole or
part from the unique characteristic of mandatory mediation which
permits NMB staff mediators and the Board itself to insist that
negotiations continue as long as they, not the parties, can see the slightest
glimmer of a peaceful settlement. This process undoubtedly prolongs
negotiations. However, given a public policy of strong reluctance to
permit strikes to occur in these industries, such prolongation seems
justifiable.
The one section of the Act generally agreed by neutral observers and
many of the parties to have been a failure is that involving railroad
grievance procedures. The existing system in the railroad industry neither
forces the parties to resolve the percentage of grievances they should nor
provides rapid justice in situations where the grievances have merit. The
shift from the NRAB to public law boards has made little difference as
operating craft grievances continue to overload the system. The
conclusion here is no different from previous studies—government
financed railroad arbitration should be ended.
When one turns from the resolution of grievances to the resolution of
bargaining impasses under the RLA, the issue becomes more important,
16
The First Fifty Years
the experience more complex, and the future more difficult to project.
Experience with impasse resolution in railroad and airline bargaining has
been more varied than commentaries based upon any particular five- or
ten-year period can reflect.
Initially, it should be noted that the statutory procedure urging
voluntary arbitration of interest disputes upon the parties has been
accepted more commonly and has been more useful than generally
perceived. There is some possibility that its use may increase,
particularly in the airline industry.
Emergency board procedures can now be seen as having gone
through five different phases, alternating periods when they were
generally successful or generally a failure. Each of these phases can be
related to the experience of the time in industry generally as well as to
the specific problems faced during each phase by negotiators in railroads
and airlines. The strike data under the Act do not show the emergency
procedures to have been a failure, at least not in such simple fashion. In
reality, they suggest another equally likely possibility—that the parties
may be just as capable as are government officials in appraising the
impact of their strikes upon the public. Under the Act, Section 10
emergency board procedures are to be used to help prevent all significant
interruptions to rail and air commerce. Sometimes, of course, these
procedures are unavailing. Yet, over a fifty-year period, the situations in
which national rail stoppages have occurred have been extremely
infrequent. This is the one area of service which by consensus must be
maintained under all circumstances. The conclusion seems inescapable.
The parties to rail bargaining are conscious of their responsibility to
maintain uninterrupted service and strive, ordinarily with success, to
fulfill it.
The most recent five- or six-year period has seen a number of
seemingly encouraging developments so far as experience in national
bargaining and with the emergency board procedures of the Act are
concerned. The crucial question, of course, is whether these
developments are likely to be permanent or whether they simply
represent another transitory phase of experience under the Act.
Some of these developments, particularly those resulting from
administration of the Act, are likely to be permanent. For example,
recognition of the limited emergency potential of airline strikes has
resulted in a decision that the emergency procedures should not be used
to prevent them. This is clearly appropriate since the cry of “emergency,”
like the cry of “wolf” in the fable, should be limited to real emergencies.
Similar discretionary administration in the use of emergency board
17
The Railway Labor Act at Fifty
procedures is possible in the case of sectional rail disputes. More caution
in the use of boards in such disputes is worth consideration. Of
considerably greater importance is the fact that Congress has shown itself
increasingly reluctant to become involved in rail disputes. Congressmen
have complained that they have neither time nor expertise to deal
competently with industrial relations problems.23 Awareness by the
parties that Congressional intervention in disputes—too frequent in the
1963-72 decade—is no longer likely, appears to have had a salutary
effect on bargaining since that time.
With regard to emergency board proceedings themselves, the parties
have recently and repeatedly cooperated with board members in
expediting the proceedings. As a result, proceedings no longer resemble
a “mating dance” or “Kabuchi Theater” as alleged during the 1950’s and
1960’s. At the very least, in situations where emergency boards are
essential these recent developments encourage more rapid resolution of
impasses. More importantly, now as in the past the board’s
recommendations are conceded by the parties often to have significantly
aided settlements.
Many of the recent developments were the creation of the parties
themselves. As a consequence, it is difficult to project their permanence.
The movement toward common expiration dates and coordinated
bargaining in the railroad industry is certainly extremely forwardlooking. To the extent that these developments have been made possible
by mergers among rail unions and increased centralization on the
employer side of the bargaining table they may well be permanent. To
the extent that they have resulted from changes in the cast of characters
on each side of the rail negotiating table and from a decline in strife over
technological innovations in the industry these favorable developments
may be more ephemeral. In either event they challenge the judgment of
those who say that voluntary collective bargaining under the RLA has
collapsed.
These periodic Cassandra-like statements of the failure of rail and
airline bargaining, coupled with calls for new legislation—the precise
kind usually unspecified or untried—are overly simplistic. They ignore
the practical problem which has always faced the Nation in this field. In
philosophic terms, the dilemma is how to curtail the right-of combined
action without depriving individual liberty of much of its value;
alternatively, how can combined action be left unrestricted without
depriving individuals of life essentials and government of its power to
guarantee them to its citizens? Concretely, how may we insure that a
necessary flow of goods and services to the public be maintained and
18
The First Fifty Years
simultaneously uphold our national decision to preserve the utmost in
voluntarism in setting the terms under which one individual works for
the profit of another? Critics usually opt for one horn or the other, as if
no dilemma exists. The Railway Labor Act accepts the problem as a
whole, and, while not resolving it, has ordinarily performed quite well in
preserving both of these essentially incompatible elements of democratic
liberty.
There is an understandable reluctance on the part of government
officials, though not of scholarly critics, to educate the public on the
essential incompatibility of free collective bargaining and absence of
economic warfare in essential industries. From the longer view of
history, we have almost always found plausible formulas for government
intervention that carry only intimations of government authority. It is
significant that in the Railway Labor Act, as in the Taft-Hartley Act, we
have appeared to find a solution to emergency strikes even though in a
real and fundamental sense the techniques we use are only partially
effective against them. Present “emergency procedures” are in no sense
adequate to an emergency except to the degree that the public is lulled
into passivity because of the symbolism represented by the phrase itself.
Looked at in this perspective, the Railway Labor Act, including its
emergency procedures, is far more a success than failure. Collective
bargaining under it, aided by mediation, emergency board
recommendations and more mediation, usually works. But the system
does not always work, for given the inherent dilemma, it was not and
cannot be designed to. When a strike situation arises that will really
create an emergency the government then calls upon reserve powers, for
given a sufficient emergency there is almost nothing that even a
democratic government cannot and will not do. This too is part of the
system.
Fundamentally, the Railway Labor Act procedures succeed because
those whom it covers do not behave in a perverse and antisocial fashion
for long periods of time. The appeal to reason and loyalty is the hallmark
of the democratic state. If the day ever comes when a Presidential appeal
or a congressional order to end an emergency stoppage is ignored the
Nation need not search its arsenals for new weapons—the state is lost in
any event. For fifty years, facing the dilemma of preserving both group
and individual liberties, the Act has never precipitated an unsolvable
emergency. It is in this most fundamental sense that it can be
characterized a success. It will continue to exist so long as this is true.
__________
19
The Railway Labor Act at Fifty
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20
Edwin E. Witte, The Government in Labor Disputes, New York: McGraw-Hill,
1932, p. 244.
Quoted in Howard V. Kaltenborn, Governmental Adjustment of Labor Disputes,
Chicago: Foundation Press, 1943, p. .72.
Sixth Annual Report, National Mediation Board, Washington D.C.: Government
Printing Office, 1939, p. 1.
Harry D. Wolf, How Collective Bargaining Works, New York: Twentieth Century
Fund, 1941, p. 373; Otto Beyer, “The Railway Labor Act,” Proceedings of the
Academy of Political Science, Vol. XXII, 1946-48, p. 51.
Herbert R. Northrup, “Emergency Disputes Under the Railway Labor Act,”
Proceedings of the First Annual Meeting, Industrial Relations Research Association,
1948, p. 79.
Sixteenth Annual Report, National Mediation Board, Washington, D.C.:
Government Printing Office, 1950.
Jacob J. Kaufman, Collective Bargaining in the Railroad Industry, New York:
King’s Crown Press, 1954, p. 76.
Dallas Jones, editor, Proceedings of the Eighteenth Annual Meeting, National
Academy of Arbitrators, Washington, D.C.: Bureau of National Affairs, 1965, pp.
27-65.
Benjamin Aaron, “Public-Interest Disputes and their Settlement: Observations on
the United States Experience,” Proceedings of the Spring Meeting, Industrial
Relations Research Association, 1963, p. 747.
Donald E. Cullen, National Emergency Strikes, Ithaca, New York: New York State
School of Industrial and Labor Relations, 1968, pp. 66-76.
Herbert R. Northrup, “The Railway Labor Act: A Critical Reappraisal”; Jacob J.
Kaufman, “Procedures versus Collective Bargaining in Railroad Labor Disputes,”
Industrial and Labor Relations Review, Vol. 25, 1971, pp. 3-31 and 53-70.
Beatrice M. Burgoon, “Effects of the Structure of Collective Bargaining in Selected
Industries: The “Railway Industry,” Proceedings of the Spring Meeting, Industrial
Relations Research Association, 1970, pp. 491-8; Charles M. Rehmus, “Railway
Labor Act Modifications: Helpful or Harmful?” Industrial and Labor Relations
Review, Vol. 25, 1971, pp. 85-94. Other commentary during this same period, both
pro and con, is cited in the notes in Chapter VI.
Irving Kovarsky, Discrimination in Employment, Iowa City, Iowa: University of
Iowa Center for Labor and Management, 1976, pp. 41-2.
Joseph Krislov has suggested that the phrase “compulsory mediation” is inadequate
and inappropriate to describe the function of mediation under the RLA: He suggests
“quasi-judicial mediation” as a possible alternative to depict more adequately the
power the NMB exerts in relation to rail and airline bargaining. “Mediation Under
the Railway Labor Act: A Process in Search of a Name,” Labor Law Journal, Vol.
27, 1976, pp. 310-15.
Brotherhood of Railroad Trainmen v. Chicago River and Indiana Railroad, 353
U.S. 30 (1957).
These influences are developed by. Irving Bernstein, The New Deal Collective
Bargaining Policy, Los Angeles: University of California Press, 1950, Chaps. IV
and V.
Steele v. Louisville and Nashville Railroad, 323 U.S. 192 (1944).
Vaca v. Sipes, 386 U.S. 161 (1967); Nines v. Anchor Motor Freight, 96 Sup. Ct.
1048 (1976).
Railway Employees’ Department ,v. Hanson, 351 U.S. 225 (1956).
The First Fifty Years
20. Machinists v. Street, 367 U.S. 740 (1961).
21. Abood v. Detroit Board of Education, No. 75-1153, U.S. Supreme Court, October
Term, 1975.
22. William Gomberg, “Featherbedding,” The Annals of the American Academy of
Political and Social Science, Vol’. 333, 1961.
23. For example, Hearing on H.R. 3596, et al. Before the Subcommittee on
Transportation and Aeronautics of the House Committee on Interstate and Foreign
Commerce, 92nd Cong., 1st Sess., pt. 2 (1971), p. 424.
21
APPENDIX A
The Railway Labor Act
45 USC §§ 151-188
With Cross References
1
The Railway Labor Act of Fifty
CROSS REFERENCE
Railway Labor Act By Sections
United States Code By Sections
Title I
1..........................................................................................................................151
2..........................................................................................................................151(a)
2..........................................................................................................................152
3..........................................................................................................................153
4..........................................................................................................................154
5..........................................................................................................................155
6..........................................................................................................................156
7..........................................................................................................................157
8..........................................................................................................................158
9..........................................................................................................................159
10 ..........................................................................................................................160
11 ..........................................................................................................................161
12 ..........................................................................................................................162
13 ..........................................................................................................................NCP*
14 ..........................................................................................................................163
Title II
201..........................................................................................................................181
202..........................................................................................................................182
203..........................................................................................................................183
204..........................................................................................................................184
205..........................................................................................................................185
206..........................................................................................................................NCP*
207..........................................................................................................................187
208..........................................................................................................................188
__________
*No Code Provision. 262
2
Chapter 8.—RAILWAY LABOR
Sec.
151.
151a.
152.
153.
154.
155.
156.
157.
158.
159.
160.
161.
162.
163.
164.
Definitions.
General purposes.
General duties.
National Railroad Adjustment Board.
National Mediation Board.
Functions of Mediation Board.
Procedure in changing rates of pay, rules, and working conditions.
Arbitration.
Agreement to arbitrate; form and contents; signatures and acknowledgement;
revocation.
Award and judgment thereon; effect of chapter on individual employee.
Emergency Board.
Effect of partial invalidity of chapter.
Appropriation.
Repeal of prior legislation; exception. .
Repealed.
181.
182.
183.
184.
185.
186.
187.
188.
CARRIERS BY AIR
Application of sections 151 to 152 and 154 to 163 to carriers by air.
Same; duties, penalties, benefits, and privileges.
Disputes within jurisdiction of Mediation Board.
System, group, or regional boards of adjustment.
National Air Transport Adjustment Board.
Pending cases before Labor Relations Board transferred to Mediation Board.
Separability of provisions.
Appropriation authorized.
CHAPTER REFERRED TO IN O THER Sections
This chapter is referred to in title 18 section 1951; title 26 section 3231; title 28
section 1445.
§ 151. Definitions.
When used in this chapter and section 225 of Title 28 and for the
purposes of said chapter and section—
First. The term “carrier” includes any express company, sleeping-car
company, carrier by railroad, subject to the Interstate Commerce Act,
and any company which is directly or indirectly owned or controlled by
or under common control with any carrier by railroad and which operates
any equipment or facilities or performs any service (other than trucking
service) in connection with the transportation, receipt, delivery,
elevation, transfer in transit, refrigeration or icing, storage, and handling
of property transported by railroad, and any receiver, trustee, or other
individual or body, judicial or otherwise, when in the possession of the
3
The Railway Labor Act of Fifty
business of any such “carrier”: Provided, however, That the term
“carrier” shall not include any street, interurban, or suburban electric
railway, unless such railway is operating as a part of a general steamrailroad system of transportation, but shall not exclude any part of the
general steam-railroad system of transportation now or hereafter operated
by any other motive power. The Interstate Commerce Commission is
authorized and directed upon request of the Mediation Board or upon
complaint of any party interested to determine after hearing whether any
line operated by electric power falls within the terms of this provisio.
The term “carrier” shall not include any company by reason of its being
engaged in the mining of coal, the supplying of coal to a carrier where
delivery is not beyond the mine tipple, and the operation of equipment or
facilities therefor or in any of such activities.
Second. The term “Adjustment Board” means the National Railroad
Adjustment Board created by this chapter.
Third. The term “Mediation Board” means the National Mediation
Board created by this chapter.
Fourth. The term “commerce” means commerce among the several
States or between any State, Territory, or the District of Columbia and
any foreign nation, or between any Territory or the District of Columbia
and any State, or between any Territory and any other Territory, or
between any Territory and the District of Columbia, or within any
Territory or the District of Columbia, or between points in the same State
but through any other State or any Territory or the District of Columbia
or any foreign nation.
Fifth. The term “employee” as used herein includes every person in
the service of a carrier (subject to its continuing authority to supervise
and direct the manner of rendition of his service) who performs any work
defined as that of an employee or subordinate official in the orders of the
Interstate Commerce Commission now in effect, and as the same may be
amended or interpreted by orders hereafter entered by the Commission
pursuant to the authority which is conferred upon it to enter orders
amending or interpreting such existing orders: Provided, however, That
no occupational classification made by order of the Interstate Commerce
Commission shall be construed to define the crafts according to which
railway employees may be organized by their voluntary action, nor shall
the jurisdiction or powers of such employee organizations be regarded as
in any way limited or defined by the provisions of this chapter or by the
orders of the Commission.
The term “employee” shall not include any individual while such
individual is engaged in the physical operations consisting of the mining
4
of coal, the preparation of coal, the handling (other than movement by
rail with standard railroad locomotives) of coal not beyond the mine
tipple, or the loading of coal at the tipple.
Sixth. The term “representative” means any person or persons, labor
union, organization, or corporation designated either by a carrier or
group of carriers or by its or their employees, to act for it or them.
Seventh. The term “district court” includes the United States District
Court for the District of Columbia; and the term “court of appeals”
includes the United States Court of Appeals for the District of Columbia.
This chapter may be cited as the “Railway Labor Act.” (May
20,1926, ch. 347, § 1, 44 Stat. 577; June 7, 1934, ch. 426, 48 Stat. 926;
June 21, 1934, ch. 691, § 1, 48 Stat. 1185; June 25, 1936, ch. 804, 49
Stat. 1921; Aug. 13, 1940, ch. 664, §§ 2, 3, 54 Stat. 785, 786; June 25,
1948, ch. 646, § 32 (a), (b), 62 Stat. 991; May 24, 1949, ch. 139, § 127,
63 Stat. 107.)
REFERENCES IN TEXT
Section 225 of Title 28, referred to in introductory par. was repealed by act June 25,
1948, ch. 646, § 39, 62 Stat. 992, eff. Sept. 1, 1948, and is now covered by section 1292
of Title 28, Judiciary and Judicial Procedure.
Interstate Commerce Act, referred to in first subd., is classified to chapters 1, 8,12,
13 and 19 of Title 49, Transportation.
CODIFICATION
Provisions of act Aug. 13, 1940, § 2, similar to those of subd. “First” of this section,
limiting the term “employer” as applied to mining, etc., of coal, are contained in section
228a of this title. Provisions of section 3 of the act, similar to those of subd. “Fifth” of
this section, limiting the term “employee” as applied to mining, etc., of coal, are
contained in section 228a, former section 261, and section 351 of this title, and section
1532 of Title 26, Internal Revenue Code, 1939.
AMENDMENTS
1940—Act Aug. 13, 1940, added last sentence of subd. “First”, and last par. of subd.
“Fifth”.
CHANGE OF N AME
Subd. seventh amended by act June 25,1948, § 32 (a), (b), eff. Sept. 1,1948, as
amended by act May 24, 1949. Act June 25, 1948, § 32 (a), as so amended, substituted
“court of appeals” for “circuit court of appeals”.
Act June 25, 1948, § 32 (b), as so amended, substituted “United States District Court
for the District of Columbia” for “District Court of the United States for the District of
Columbia.”
Subd. seventh amended by act June 25, 1936, which substituted “District Court of
the United States for the District of Columbia” for “Supreme Court of the District of
Columbia”.
5
The Railway Labor Act of Fifty
Subd. seventh amended by act June 7, 1934, which substituted “United States Court
of Appeals for the District of Columbia” for “Court of Appeals for the District of
Columbia”.
S OCIAL INSURANCE AND LABOR RELATIONS OF RAILROAD COALMINING EMPLOYEES;
RETROACTIVE OPERATION OF A CT A UG. 13, 1940; E FFECT ON PAYMENTS , RIGHTS , ETC.
Sections 4—7 of act Aug. 13,1940, as amended by 1946 Reorg. Plan No. 2, § 4, eff.
July 16, 1946, 11 F. R. 7873, 60 Stat. 1095, with regard to the operation and effect of the
laws amended, provided:
“SEC. 4. (a) The laws hereby expressly amended (section 1532 of Title 26,1. R. C.
1939, and sections 151, 215, 228a, [former] 261, and 351 of this title), the Social Security
Act, approved August 14, 1935 (section 301 et seq. of Title 42), and all amendments
thereto, shall operate as if each amendment herein contained had been enacted as a part of
the law it amends, at the time of the original enactment of such law.
“(b) No person (as defined in the Carriers Taxing Act of 1937 [former section 261 et
seq. of this title]) shall be entitled, by reason of the provisions of this Act, to a refund of,
or relief from liability for, any income or excise taxes paid or accrued, pursuant to the
provisions of the Carriers. Taxing Act of 1937 [former section 261 et seq. of this title] or
subchapter B of chapter 9 of the Internal Revenue Code [section 1500 et seq. of Title 26,
I. R. C. 1939], prior to the date of the enactment of this Act by reason of employment in
the service of any carrier by railroad subject to part I of the Interstate Commerce Act
[section 1 et seq. of Title 49], but any individual who has been employed in such service
of any carrier by railroad subject to part I of the Interstate Commerce Act [section 1 et
seq. of Title 49] as is excluded by the amendments made by this Act from coverage under
the Carriers Taxing Act of 1937 [former section 261 et seq. of this title] and subchapter B
of chapter 9 of the Internal Revenue Code [section 1500 et seq. of Title 26, I. R. C. 1939],
and who has paid income taxes under the provisions of such Act or subchapter, and any
carrier by railroad subject to part I of the Interstate Commerce Act [section 1 et seq. of
Title 49] which has paid excise taxes under the provisions of the Carriers Taxing Act of
1937 [former section 261 et seq. of this title] or subchapter B of chapter 9 of the Internal
Revenue Code [section 1500 et seq. of Title 26, I. R. C. 1939], may, upon making proper
application therefor to the Bureau of Internal Revenue, have the amount of taxes so paid
applied in reduction of such tax liability with respect to employment, as may, by reason
of the amendments made by this Act, accrue against them under the provisions of title
VIII of the Social Security Act [former section 1001 et seq. of Title 42] or the Federal
Insurance Contributions Act (subchapter A of chapter 9 of the Internal Revenue Code)
[section 1400 et seq. of Title 26, I. R. C. 1939].
“(c) Nothing contained in this Act shall operate (1) to affect any annuity, pension, or
death benefit granted under the Railroad Retirement Act of 1935 [former sections 215—
228 of this title] or the Railroad Retirement Act of 1937 [section 228a et seq. of this title],
prior to the date of enactment of this Act or (2) to include any of the services on the basis
of which any such annuity or pension was granted, as employment within the meaning of
section 210 (b) of the Social Security Act or section 209 (b) of such Act, as amended
[former sections 410 (b) and 409 (b), respectively, of Title 42]. In any case in which a
death benefit alone has been granted, the amount of such death benefit attributable to
services, coverage of which is affected by this Act, shall be deemed to have been paid to
the deceased under section 204 of the Social Security Act [section 404 of Title 42] in
effect prior to January 1, 1940, and deductions shall be made from any insurance benefit
or benefits payable under the Social Security Act, as amended [section 301 et seq. of
6
Title 42], with respect to wages paid to an individual for such services until such
deductions total the amount of such death benefit attributable to such services.
“(d) Nothing contained in this Act shall operate to affect the benefit rights of any
individual under the Railroad Unemployment Insurance Act [section 351 et seq. of this
title] for any day of unemployment (as defined in section 1 (k) of such Act [section 351
(k) of this title]) occurring prior to the date of enactment of this Act. [Aug. 13, 1940]
“SEC. 5. Any application for payment filed with the Railroad Retirement Board
prior to, or within sixty days after, the enactment of this Act shall, under such regulations
as the Federal Security Administrator may prescribe, be deemed to be an application filed
with the Federal Security Administrator by such individual or by any person claiming any
payment with respect to the wages of such individual, under any provisions of section
202 of the Social Security Act, as amended [section 402 of Title 42].
“SEC. 6. Nothing contained in this Act, nor the action of Congress in adopting it,
shall be taken or considered as affecting the question of what carriers, companies, or
individuals, other than those in this Act specifically provided for, are included in or
excluded from the provisions of the various laws to which this Act is an amendment.
“SEC. 7. (a) Notwithstanding the provisions of section 1605 (b) of the Internal
Revenue Code, [1939] no interest shall, during the period February 1, 1940, to the eightyninth day after the date of enactment of this Act, [Aug. 13, 1940] inclusive, accrue by
reason of delinquency in the payment of the tax imposed by section 1600 with respect to
services affected by this Act performed during the period July 1, 1939, to December 31,
1939, inclusive, with respect to which services amounts have been paid as contributions
under the Railroad Unemployment Insurance Act [section 351 et seq. of this title] prior to
the date of enactment of this Act.
“(b) Notwithstanding the provisions of section 1601 (a) (3) of the Internal Revenue
Code, [1939] the credit allowable under section 1601 (a) against the tax imposed by
section 1600 for the calendar year 1939 shall not be disallowed or reduced by reason of
the payment into a State unemployment fund after January 31, 1940, of contributions
with respect to services affected by this Act performed during the period July 1, 1939, to
December 31, 1939, inclusive, with respect to which services amounts have been paid as
contributions under the Railroad Unemployment Insurance Act [section 351 et seq. of
this title] prior to the date of enactment of this Act [Aug. 13, 1940]: Provided, That this
subsection shall be applicable only if the contributions with respect to such services are
paid into the State unemployment fund before the ninetieth day after the date of
enactment of this Act [Aug. 13, 1940].”
SECTION RE FERRED TO IN O THER SECTIONS
This section is referred to in sections 153, 157, 181, 182, 184, 185 of this title.
§ 15 la. General purposes.
The purposes of the chapter are: (1) To avoid any interruption to
commerce or to the operation of any carrier engaged therein; (2) to forbid
any limitation upon freedom of association among employees or any
denial, as a condition of employment or otherwise, of the right of
employees to join a labor organization; (3) to provide for the complete
independence of carriers and of employees in the matter of selforganization to carry out the purposes of this chapter; (4) to provide for
the prompt and orderly settlement of all disputes concerning rates of pay,
7
The Railway Labor Act of Fifty
rules, or working conditions; (5) to provide for the prompt and orderly
settlement of all disputes growing out of grievances or out of the
interpretation or application of agreements covering rates of pay, rules,
or working conditions. (May 20, 1926, ch. 347, § 2,44 Stat. 577; June 21,
1934, ch. 691, § 2, 48 Stat. 1186.)
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 153, 157, 181, 182, 184, 185 of this title.
§ 152. General duties.
First. Duty of carriers and employees to settle disputes.
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, and
to settle all disputes, whether arising out of the application of such
agreements or otherwise, in order to avoid any interruption to commerce
or to the operation of any carrier growing out of any dispute between the
carrier and the employees thereof.
Second. Consideration of disputes by representatives.
All disputes between a carrier or carriers and its or their employees
shall be considered, and, if possible, decided, with all expedition, in
conference between representatives designated and authorized so to
confer, respectively, by the carrier or carriers and by the employees
thereof interested in the dispute.
Third. Designation of representatives.
Representatives, for the purposes of this chapter, 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. Representatives of employees for
the purposes of this chapter need not be persons in the employ of the
carrier, and no carrier shall, by interference, influence, or coercion seek
in any manner to prevent the designation by its employees as their
representatives of those who or which are not employees of the carrier.
8
Fourth. Organization and collective bargaining; freedom from
interference by carrier; assistance in organizing or maintaining
organization by carrier forbidden; deduction of dues from wages
forbidden.
Employees shall have the right to organize and bargain collectively
through representatives of their own choosing. The majority of any craft
or class of employees shall have the right to determine who shall be the
representative of the craft or class for the purposes of this chapter. No
carrier, its officers, or agents shall deny or in any way question the right
of its employees to join, organize, or assist in organizing the labor
organization of their choice, and it shall be unlawful for any carrier to
interfere in any way with the organization of its employees, or to use the
funds of the carrier in maintaining or assisting or contributing to any
labor organization, labor representative, or other agency of collective
bargaining, or in performing any work therefor, or to influence or coerce
employees in an effort to induce them to join or remain or not to join or
remain members of any labor organization, or to deduct from the wages
of employees any dues, fees, assessments, or other contributions payable
to labor organizations, or to collect or to assist in the collection of any
such dues, fees, assessments, or other contributions: Provided, That
nothing in this chapter shall be construed to prohibit a carrier from
permitting an employee, individually, or local representatives of
employees from conferring with management during working hours
without loss of time, or to prohibit a carrier from furnishing free
transportation to its employees while engaged in the business of a labor
organization.
Fifth. Agreements to join or not to join labor organizations
forbidden.
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; and if any such contract has been enforced
prior to the effective date of this chapter, then such carrier shall notify
the employees by an appropriate order that such contract has been
discarded and is no longer binding on them in any way.
Sixth. Conference of representatives; time; place; private
agreements.
In case of a dispute between a carrier or carriers and its or their
employees, arising out of grievances or out of the interpretation or
application of agreements concerning rates of pay, rules, or working
9
The Railway Labor Act of Fifty
conditions, it shall be the duty of the designated representative or
representatives of such carrier or carriers and of such employees, within
ten days after the receipt of notice of a desire on the part of either party
to confer in respect to such dispute, to specify a time and place at which
such conference shall be held: Provided, (1) That the place so specified
shall be situated upon the line of the carrier involved or as otherwise
mutually agreed upon; and (2) that the time so specified shall allow the
designated conferees reasonable opportunity to reach such place of
conference, but shall not exceed twenty days from the receipt of such
notice: And provided further, That nothing in this chapter shall be
construed to supersede the provisions of any agreement (as to
conferences) then in effect between the parties.
Seventh. Change in pay, rules, or working conditions contrary to
agreement or to section 156 forbidden.
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.
Eighth. Notices of manner of settlement of disputes; posting.
Every carrier shall notify its employees by printed notices in such
form and posted at such times and places as shall be specified by the
Mediation Board that all disputes between the carrier and its employees
will be handled in accordance with the requirements of this chapter, and
in such notices there shall be printed verbatim, in large type, the third,
fourth, and fifth paragraphs of this section. The provisions of said
paragraphs are made a part of the contract of employment between the
carrier and each employee, and shall be held binding upon the parties,
regardless of any other express or implied agreements between them.
Ninth. Disputes as to identity of representatives; designation by
Mediation Board; secret elections.
If any dispute shall arise among a carrier’s employees as to who are
the representatives of such employees designated and authorized in
accordance with the requirements of this chapter, it shall be the duty of
the Mediation Board, upon request of either party to the dispute, to
investigate such dispute and to certify to both parties, in writing, within
thirty days after the receipt of the invocation of its services, the name or
names of the individuals or organizations that have been designated and
authorized to represent the employees involved in the dispute, and certify
10
the same to the carrier. Upon receipt of such certification the carrier shall
treat with the representative so certified as the representative of the craft
or class for the purposes of this chapter. In such an investigation, the
Mediation Board shall be authorized to take a secret ballot of the
employees involved, or to utilize any other appropriate method of
ascertaining the names of their duly designated and authorized
representatives in such manner as shall insure the choice of
representatives by the employees without interference, influence, or
coercion exercised by the carrier. In the conduct of any election for the
purposes herein indicated the Board shall designate who may participate
in the election and establish the rules to govern the election, or may
appoint a committee of three neutral persons who after hearing shall
within ten days designate the employees who may participate in the
election. The Board shall have access to and have power to make copies
of the books and records of the carriers to obtain and utilize such
information as may be deemed necessary by it to carry out the purposes
and provisions of this paragraph.
Tenth. Violations; prosecution and penalties.
The willful failure or refusal of any carrier, its officers or agents, to
comply with the terms of the third, fourth, fifth, seventh, or eighth
paragraph of this section shall be a misdemeanor, and upon conviction
thereof the carrier, officer, or agent offending shall be subject to a fine of
not less than $1,000, nor more than $20,000, or imprisonment for not
more than six months, or both fine and imprisonment, for each offense,
and each day during which such carrier, officer, or agent shall willfully
fail or refuse to comply with the terms of the said paragraphs of this
section shall constitute a separate offense. It shall be the duty of any
United States attorney to whom any duly designated representative of a
carrier’s employees may apply to institute in the proper court and to
prosecute under the direction of the Attorney General of the United
States, all necessary proceedings for the enforcement of the provisions of
this section, and for the punishment of all violations thereof and the costs
and expenses of such prosecution shall be paid out of the appropriation
for the expenses of the courts of the United States: Provided, That
nothing in this chapter shall be construed to require an individual
employee to render labor or service without his consent, nor shall
anything in this chapter be construed to make the quitting of his labor by
an individual employee an illegal act; nor shall any court issue any
process to compel the performance by an individual employee of such
labor or service, without his consent.
11
The Railway Labor Act of Fifty
Eleventh. Union security agreements; check-off.
Notwithstanding any other provisions of this chapter, or of any other
statute or law of the United States, or Territory thereof, or of any State,
any carrier or carriers as defined in this chapter and a labor organization
or labor organizations duly designated and authorized to represent
employees in accordance with the requirements of this chapter shall be
permitted—
(a) to make agreements, requiring, as a condition of continued
employment, that within sixty days following the beginning of such
employment, or the effective date of such agreements, whichever is the
later, all employees shall become members of the labor organization
representing their craft or class: Provided, That no such agreement shall
require such condition of employment with respect to employees to
whom membership is not available upon the same terms and conditions
as are generally applicable to any other member or with respect to
employees to whom membership was denied or terminated for any
reason other than the failure of the employee to tender the periodic dues,
initiation fees, and assessments (not including fines and penalties)
uniformly required as a condition of acquiring or retaining membership.
(b) to make agreements providing for the deduction by such carrier
or carriers from the wages of its or their employees in a craft or class and
payment to the labor organization representing the craft or class of such
employees, of any periodic dues, initiation fees, and assessments (not
including fines and penalties) uniformly required as a condition of
acquiring or retaining membership: Provided, That no such agreement
shall be effective with respect to any individual employee until he shall
have furnished the employer with a written assignment to the labor
organization of such membership dues, initiation fees, and assessments,
which shall be revocable in writing after the expiration of one year or
upon the termination date of the applicable collective agreement,
whichever occurs sooner.
(c) The requirement of membership in a labor organization in an
agreement made pursuant to subparagraph (a) of this paragraph shall be
satisfied, as to both a present or future employee in engine, train, yard, or
hostling service, that is, an employee engaged in any of the services or
capacities covered in the First division of paragraph (h) of section 153 of
this title defining the jurisdictional scope of the First Division of the
National Railroad Adjustment Board, if said employee shall hold or
acquire membership in any one of the labor organizations, national in
scope, organized in accordance with this chapter and admitting to
membership employees of a craft or. class in any of said services; and no
12
agreement made pursuant to subparagraph (b) of this paragraph shall
provide for deductions from his wages for periodic dues, initiation fees,
or assessments payable to any labor organization other than that in which
he holds membership: Provided, however, That as to an employee in any
of said services on a particular carrier at the effective date of any such
agreement on a carrier, who is not a member of any one of the labor
organizations, national in scope, organized in accordance with this
chapter and admitting to membership employees of a craft or class in any
of said services, such employee, as a condition of continuing his
employment, may be required to become a member of the organization
representing the craft in which he is employed on the effective date of
the first agreement applicable to him: Provided, further, That nothing
herein or in any such agreement or agreements shall prevent an employee
from changing membership from one organization to another
organization admitting to membership employees of a craft or class in
any of said services.
(d) Any provisions in paragraphs Fourth and Fifth of this section in
conflict herewith are to the extent of such conflict amended. (May 20,
1926, ch. 347, § 2, 44 Stat. 577; June 21, 1934, ch. 691, § 2, 48 Stat.
1186; June 25, 1948, ch. 646, § 1, 62 Stat. 909; Jan. 10, 1951, ch. 1220,
64 Stat. 1238.)
AMENDMENTS
1951—Act Jan. 10, 1951, added par. eleven.
CHANGE OF N AME
Par. ten amended by act June 25, 1948, eff. Sept. 1, 1948, which substituted “United
States attorney” for “district attorney of the United States”. See section 541 of Title 28,
Judiciary and Judicial Procedure.
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 153, 154, 157, 181, 182, 184, 185 of this title.
§ 153. National Railroad Adjustment Board.
First. Establishment; composition; powers and duties; divisions;
hearings and awards; judicial review.
There is established a Board, to be known as the “National Railroad
Adjustment Board”, the members of which shall be selected within thirty
days after June 21, 1934, and it is provided—
(a) That the said Adjustment Board shall consist of thirty-four
members, seventeen of whom shall be selected by the carriers and
seventeen by such labor organizations of the employees, national in
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The Railway Labor Act of Fifty
scope, as have been or may be organized in accordance with the
provisions of section 152 of this title.
(b) The carriers, acting each through its board of directors or its
receiver or receivers, trustee or trustees, or through an officer or officers
designated for that purpose by such board, trustee or trustees, or receiver
or receivers, shall prescribe the rules under which its representatives
shall be selected and shall select the representatives of the carriers on the
Adjustment Board and designate the division on which each such
representative shall serve, but no carrier or system of carriers shall have
more than one voting representative on any division of the board.
(c) (Except as provided in the second paragraph of subsection (h) of
this section, the national labor organizations, as defined in paragraph (a)
of this section, acting each through the chief executive or other medium
designated by the organization or association thereof, shall prescribe the
rules under which the labor members of the Adjustment Board shall be
selected and shall select such members and designate the division on
which each member shall serve; but no labor organization shall have
more than one voting representative on any division of the Board.
(d) In case of a permanent or temporary vacancy on the Adjustment
Board, the vacancy shall be filled by selection in the same manner as in
the original selection.
(e) If either the carriers or the labor organizations of the employees
fail to select and designate representatives to the Adjustment Board, as
provided in paragraphs (b) and (c) of this section, respectively, within
sixty days after June 21, 1934, in case of any original appointment to
office of a member of the Adjustment Board, or in case of a vacancy in
any such office within thirty days after such vacancy occurs, the
Mediation Board shall thereupon directly make the appointment and
shall select an individual associated in interest with the carriers or the
group of labor organizations of employees, whichever he is to represent.
(f) In the event a dispute arises as to the right of any national labor
organization to participate as per paragraph (c) of this section in the
selection and designation of the labor members of the Adjustment Board,
the Secretary of Labor shall investigate the claim of such labor
organization to participate, and if such claim in the judgment of the
Secretary of Labor has merit, the Secretary shall notify the Mediation
Board accordingly, and within ten days after receipt of such advice the
Mediation Board shall request those national labor organizations duly
qualified as per paragraph (c) of this section to participate in the selection
and designation of the labor members of the Adjustment Board to select
a representative. Such representative, together with a representative
14
likewise designated by the claimant, and a third or neutral party
designated by the Mediation Board, constituting a board of three, shall
within thirty days after the appointment of the neutral member,
investigate the claims of the labor organization desiring participation and
decide whether or not it was organized in accordance with section 152 of
this title and is otherwise properly qualified to participate in the selection
of the labor members of the Adjustment Board, and the findings of such
boards of three shall be final and binding.
(g) Each member of the Adjustment Board shall be compensated by
the party or parties he is to represent. Each third or neutral party selected
under the provisions of paragraph (f) of this section shall receive from
the Mediation Board such compensation as the Mediation Board may fix,
together with his necessary traveling expenses and expenses actually
incurred for subsistence, or per diem allowance in lieu thereof, subject to
the provisions of law applicable thereto, while serving as such third or
neutral party.
(h) The said Adjustment Board shall be composed of four divisions,
whose proceedings shall be independent of one another, and the said
divisions as well as the number of their members shall be as follows:
First division: To have jurisdiction over disputes involving train- and
yard-service employees of carriers; that is, engineers, firemen, hostlers,
and outside hostler helpers, conductors, trainmen, and yard-service
employees. This division shall consist of eight members, four of whom
shall be selected and designated by the carriers and four of whom shall
be selected and designated by the labor organizations, national in scope
and organized in accordance with section 151a and section 152 of this
title and which represent employees in engine, train, yard, or hostling
service: Provided, however, That each labor organization shall select and
designate two members on the First Division and that no labor
organization shall have more than one vote in any proceedings of the
First Division or in the adoption of any award with respect to any dispute
submitted to the First Division: Provided further, however, That the
carrier members of the First Division shall cast no more than two votes
in any proceedings of the division or in the adoption of any award with
respect to any dispute submitted to the First Division.
Second division: To have jurisdiction over disputes involving
machinists, boilermakers, blacksmiths, sheet-metal workers, electrical
workers, carmen, the helpers and apprentices of all the foregoing, coach
cleaners, power-house employees, and railroad-shop laborers. This
division shall consist of ten members, five of whom shall be selected by
the carriers and five by the national labor organizations of the employees.
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The Railway Labor Act of Fifty
Third division: To have jurisdiction over disputes involving station,
tower, and telegraph employees, train dispatchers, maintenance-of-way
men, clerical employees, freight handlers, express, station, and store
employees, signal men, sleeping-car conductors, sleeping-car porters,
and maids and dining-car employees. This division shall consist of ten
members, five of whom shall be selected by the carriers and five by the
national labor organizations of employees.
Fourth division: To have jurisdiction over disputes involving
employees of carriers directly or indirectly engaged in transportation of
passengers or property by water, and all other employees of carriers over
which jurisdiction is not given to the first, second, and third divisions.
This division shall consist of six members, three of whom shall be
selected by the carriers and three by the national labor organizations of
the employees.
(i) The disputes between an employee or group of employees and a
carrier or carriers growing out of grievances or out of the interpretation
or application of agreements concerning rates of pay, rules, or working
conditions, including cases pending and unadjusted on June 21, 1934,
shall be handled in the usual manner up to and including the chief
operating officer of the carrier designated to handle such disputes; but,
failing to reach an adjustment in this manner, the disputes may be
referred by petition of the parties or by either party to the appropriate
division of the Adjustment Board with a full statement of the facts and
all supporting data bearing upon the disputes.
(j) Parties may be heard either in person, by counsel or by other
representatives, as they may respectively elect, and the several divisions
of the Adjustment Board shall give due notice of all hearings to the
employee or employees and the carrier or carriers involved in any
disputes submitted to them.
(k) Any division of the Adjustment Board shall have authority to
empower two- or more of its members to conduct hearings and make
findings upon disputes, when properly submitted, at any place designated
by the division: Provided, however, That except as provided in paragraph
(h) of this section, final awards as to any such dispute must be made by
the entire division as hereinafter provided.
(l) Upon failure of any division to agree upon an award because of a
deadlock or inability to secure a majority vote of the division members,
as provided in paragraph (n) of this section, then such division shall
forthwith agree upon and select a neutral person, to be known as
“referee”, to sit with the division as a member thereof, and make an
award. Should the division fail to agree upon and select referee within
16
ten days of the date of the deadlock or inability to secure a majority vote,
then the division, or any member thereof, or the parties or either party to
the dispute may certify that fact to the Mediation Board, which Board
shall, within ten days from the date of receiving such certificate, select
and name the referee to sit with the division as a member thereof and
make an award. The Mediation Board shall be bound by the same
provisions in the appointment of these neutral referees as are provided
elsewhere in this chapter for the appointment of arbitrators and shall fix
and pay the compensation of such referees.
(m) The awards of the several divisions of the Adjustment Board
shall be stated in writing. A copy of the awards shall be furnished to the
respective parties to the controversy, and the awards shall be final and
binding upon both parties to the dispute. In case a dispute arises
involving an interpretation of the award, the division of the Board upon
request of either party shall interpret the award in the light of the dispute.
(n) A majority vote of all members of the division of the Adjustment
Board eligible to vote shall be competent to make an award with respect
to any dispute submitted to it.
(o) In case of an award by any division of the Adjustment Board in
favor of petitioner, the division of the Board shall make an order,
directed to the carrier, to make the award effective and, if the award
includes a requirement for the payment of money, to pay to the employee
the sum to which he is entitled under the award on or before a day
named. In the event any division determines that an award favorable to
the petitioner should not be made in any dispute referred to it, the
division shall make an order to the petitioner stating such determination.
(p) If a carrier does not comply with an order of a division of the
Adjustment Board within the time limit in such order, the petitioner, or
any person for whose benefit such order was made, may file in the
District Court of the United States for the district in which he resides or
in which is located the principal operating office of the carrier, or
through which the carrier operates, a petition setting forth briefly the
causes for which he claims relief, and the order of the division of the
Adjustment Board in the premises. Such suit in the District Court of the
United States shall proceed in all respects as other civil suits, except that
on the trial of such suit the findings and order of the division of the
Adjustment Board shall be conclusive on the parties, and except that the
petitioner shall not be liable for costs in the district court nor for costs at
any subsequent stage of the proceedings, unless they accrue upon his
appeal, and such costs shall be paid out of the appropriation for the
expenses of the courts of the United States. If the petitioner shall finally
17
The Railway Labor Act of Fifty
prevail he shall be allowed a reasonable attorney’s fee, to be taxed and
collected as a part of the costs of the suit. The district courts are
empowered, under the rules of the court governing actions at law, to
make such order and enter such judgment, by writ of mandamus or
otherwise, as may be appropriate to enforce or set aside the order of the
division of the Adjustment Board: Provided, however, That such order
may not be set aside except for failure of the division to comply with the
requirements of this chapter, for failure of the order to conform, or
confine itself, to matters within the scope of the division’s jurisdiction, or
for fraud or corruption by a member of the division making the order.
(q) If any employee or group of employees, or any carrier, is
aggrieved by the failure of any division of the Adjustment Board to make
an award in a dispute referred to it, or is aggrieved by any of the terms of
an award or by the failure of the division to include certain terms in such
award, then such employee or group of employees or carrier may file in
any United States district court in which a petition under paragraph (p)
could be filed, a petition for review of the division’s order. A copy of the
petition shall be forthwith transmitted by the clerk of the court to the
Adjustment Board. The Adjustment Board shall file in the court the
record of the proceedings on which it based its action. The court shall
have jurisdiction to affirm the order of the division, or to set it aside, in
whole or in part, or it may remand the proceeding to the division for such
further action as it may direct. On such review, the findings and order of
the division shall be conclusive on the parties, except that the order of the
division may be set aside, in whole or in part, or remanded to the
division, for failure of the division to comply with the requirements of
this chapter, for failure of the order to conform, or confine itself, to
matters within the scope of the division’s jurisdiction, or for fraud or
corruption by a member of the division making the order. The judgment
of the court shall be subject to review as provided in sections 1291 and
1254 of Title 28.
(r) All actions at law based upon the provisions of this section shall
be begun within two years from the time the cause of action accrues
under the award of the division of the Adjustment Board, and not after.
(s) The several divisions of the Adjustment Board shall maintain
headquarters in Chicago, Illinois, meet regularly, and continue in session
so long as there is pending before the division any matter within its
jurisdiction which has been submitted for its consideration and which has
not been disposed of.
18
(t) Whenever practicable, the several divisions or subdivisions of
the Adjustment Board shall be supplied with suitable quarters in any
Federal building located at its place of meeting.
(u) The Adjustment Board may, subject to the approval of the
Mediation Board, employ and fix the compensations of such assistants as
it deems necessary in carrying on its proceedings. The compensation of
such employees shall be paid by the Mediation Board.
(v) Adjustment Board shall meet within forty days after June 21,
1934, and adopt such, rules as it deems necessary to control proceedings
before the respective divisions and not in conflict with the provisions of
this section. Immediately following the meeting of the entire Board and
the adoption of such rules, the respective divisions shall meet and
organize by the selection of a chairman, a vice chairman, and a secretary.
Thereafter each division shall annually designate one of its members to
act as chairman and one of its members to act as vice chairman:
Provided, however, That the chairmanship and vice-chairmanship of any
division shall alternate as between the groups, so that both the
chairmanship and vice-chairmanship shall be held alternately by a
representative of the carriers and a representative of the employees. In
case of a vacancy, such vacancy shall be filled for the unexpired term by
the selection of a successor from the same group.
(w) Each division of the Adjustment Board shall annually prepare
and submit a report of its activities to the Mediation Board, and the
substance of such report shall be included in the annual report of the
Mediation Board to the Congress of the United States. The reports of
each division of the Adjustment Board and the annual report of the
Mediation Board shall state in detail all cases heard, all actions taken, the
names, salaries, and duties of all agencies, employees, and officers
receiving compensation from the United States under the authority of this
chapter, and an account of all moneys appropriated by Congress pursuant
to the authority conferred by this chapter and disbursed by such agencies,
employees, and officers.
(x) Any division of the Adjustment Board shall have authority, in its
discretion, to establish regional adjustment boards to act in its place and
stead for such limited period as such division may determine to be
necessary. Carrier members of such regional boards shall be designated
in keeping with rules devised for this purpose by the carrier members of
the Adjustment Board and the labor members shall be designated in
keeping with rules devised for this purpose by the labor members of the
Adjustment Board. Any such regional board shall, during the time for
which it is appointed, have the same authority to conduct hearings, make
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The Railway Labor Act of Fifty
findings upon disputes and adopt the same procedure as the division of
the Adjustment Board appointing it, and its decisions shall be
enforceable to the same extent and under the same processes. A neutral
person, as referee, shall be appointed for service in connection with any
such regional adjustment board in the same circumstances and manner as
provided in paragraph (l) of this section, with respect to a division of the
Adjustment Board.
Second. System, group, or regional boards: establishment by
voluntary agreement; special adjustment boards: establishment,
composition, designation of representatives by Mediation Board,
neutral member, compensation, quorum, finality and enforcement of
awards.
Nothing in this section shall be construed to prevent any individual
carrier, system, or group of carriers and any class or classes of its or their
employees, all acting through their representatives, selected in
accordance with the provisions of this chapter, from mutually agreeing to
the establishment of system, group, or regional boards of adjustment for
the purpose of adjusting and deciding disputes for the character specified
in this section. In the event that either party to such a system, group, or
regional, board of adjustment is dissatisfied with such arrangement, it
may upon ninety days’ notice to the other party elect to come under the
jurisdiction of the Adjustment Board.
If written request is made upon any individual carrier by the
representative of any craft or class of employees of such carrier for the
establishment of a special board of adjustment to resolve disputes
otherwise referable to the Adjustment Board, or any dispute which has
been pending before the Adjustment Board for twelve months from the
date the dispute (claim) is received by the Board, or if any carrier makes
such a request upon any such representative, the carrier or the
representative upon whom such request is made shall join in an
agreement establishing such a board within thirty days from the date
such request is made. The cases which may be considered by such board
shall be defined in the agreement establishing it. Such board shall consist
of one person designated by the carrier and one person designated by the
representative of the employees. If such carrier or such representative
fails to agree upon the establishment of such a board as provided herein,
or to exercise its rights to designate a member of the board, the carrier or
representative making the request for the establishment of the special
board may request the Mediation Board to designate a member of the
special board on behalf of the carrier or representative upon whom such
20
request was made. Upon receipt of a request for such designation the
Mediation Board shall promptly make such designation and shall select
an individual associated in interest with the carrier or representative he is
to represent, who, with the member appointed by the carrier or
representative requesting the establishment of the special board, shall
constitute the board. Each member of the board shall be compensated by
the party he is to represent. The members of the board so designated shall
determine all matters not previously agreed upon by the carrier and the
representative of the employees with respect to the establishment and
jurisdiction of the board. If they are unable to agree such matters shall be
determined by a neutral member of the board selected or appointed and
compensated in the same manner as is hereinafter provided with respect
to situations where the members of the board are unable to agree upon an
award. Such neutral member shall cease to be a member of the board
when he has determined such matters. If with respect to any dispute or
group of disputes the members of the board designated by the carrier and
the representative are unable to agree upon an award disposing of the
dispute or group of disputes they shall by mutual agreement select a
neutral person to be a member of the board for the consideration and
disposition of such dispute or group of disputes. In the event the
members of the board designated by the parties are unable, within ten
days after their failure to agree upon an award, to agree upon the
selection of such neutral person, either member of the board may request
the Mediation Board to appoint such neutral person and upon receipt of
such request the Mediation Board shall promptly make such
appointment. The neutral person so selected or appointed shall be
compensated and reimbursed for expenses by the Mediation Board. Any
two members of the board shall be competent to render an award. Such
awards shall be final and binding upon both parties to the dispute and if
in favor of the petitioner, shall direct the other party to comply therewith
on or before the day named. Compliance with such awards shall be
enforcible by proceedings in the United States district courts in the same
manner and subject to the same provisions that apply to proceedings for
enforcement of compliance with awards of the Adjustment Board. (May
20, 1926, ch. 347, § 3, 44 Stat. 578; June 21, 1934, ch. 691, § 3, 48 Stat.
1189; June 20, 1966, Pub. L. 89^56, §§ 1, 2, 80 Stat. 208, 209; Apr. 23,
1970, Pub. L. 91-234, §§ 1-6, 84 Stat. 199, 200.)
AMENDMENTS
1970—Subd. First, (a). Pub. L. 91-234, § 1, substituted “thirty-four members,
seventeen of whom shall be selected by the carriers and seventeen” for “thirty-six
members, eighteen of whom shall be selected by the carriers and eighteen”.
21
The Railway Labor Act of Fifty
Subd. First, (b). Pub. L. 91-234, § 2, provided that no carrier or system of carriers
have more than one voting representative on any division of the National Railroad
Adjustment Board.
Subd. First, (c). Pub. L. 91-234, § 3, added “Except as provided in the second
paragraph of subsection (h) of this section” preceding “the national labor organizations”,
and provided that no labor organization have more than one voting representative on any
division of the National Railroad Adjustment Board.
Subd. First, (h). Pub. L. 91-234, § 4, decreased the number of members on the First
division of the Board from ten to eight members, with an accompanying decrease of five
to four as the number of members of such Board elected respectively by the carriers and
by the national labor organizations satisfying the enumerated requirements, and set forth
the provisos which limited voting by each labor organization or carrier member in any
proceedings of the division or in the adoption of any award.
Subd. First, (k). Pub. L. 91-234, § 5, added “except as provided in paragraph (h) of
this section” after the proviso.
Subd. First, (n). Pub. L. 91-234, § 6, added “eligible to vote” following “Adjustment
Board”.
1966—Subd. First, (m). Pub. L. 89-456, § 2(a), struck out from the second sentence
the concluding words “, except insofar as they shall contain a money award”.
Subd. First, (o). Pub. L. 89-456, § 2(b), added provision for a division to make an
order to the petitioner stating that an award favorable to the petitioner should not be made
in any dispute referred to it.
Subd. First, (p). Pub. L. 89-456, § 2(c), (d), substituted in second sentence
“conclusive on the parties” for “prima facie evidence of the facts therein stated” and
inserted in last sentence reasons for setting aside orders of a division of the Adjustment
Board, respectively.
Subd. First, (q). Pub. L. 89-456, § 2(e), added par. (q). Former par. (q) redesignated
(r).
Subd. First, (r)—(x). Pub. L. 89-456, § 2(e), redesignated former pars, (q)—(w).as
(r)—(x), respectively.
Subd. Second. Pub. L. 89-456, § 1, provided for establishment of special adjustment
boards upon request of employees or carriers to resolve disputes otherwise referable to
the Adjustment Board and made awards of such boards final.
FEDERAL RULES OF CIVIL PROCEDURE
Costs, see rule 54 and notes of Advisory Committee under the Rule, Title 28,
Appendix, Judiciary and Judicial Procedure.
Federal Rules of Civil Procedure as governing the procedure in all suits of a civil
nature whether cognizable as cases at law or in equity, see rule 1.
Mandamus as abolished but relief yet available by appropriate action or motion
under Federal Rules of Civil Procedure, see rule 81 (b) and notes of Advisory Committee
under the Rule.
One form of action, see rule 2.
Pleadings allowed, see rule 7.
SECTION REFFERED TO IN OTHER SECTIONS
This section is referred to in sections 154, 157, 184, 185 of this title.
22
§ 154. National Mediation Board.
First. Board of Mediation abolished; National Mediation Board
established; composition; term of office; qualifications; salaries;
removal.
The Board of Mediation is abolished, effective thirty days from June
21, 1934, and the members, secretary, officers, assistants, employees,
and agents thereof, in office upon June 21, 1934, shall continue to
function and receive their salaries for a period of thirty days from such
date in the same manner as though this chapter had not been passed.
There is established, as an independent agency in the executive branch of
the Government, a board to be known as the “National Mediation
Board”, to be composed of three members appointed by the President, by
and with the advice and consent of the Senate, not more than two of
whom shall be of the same political party. Each member of the
Mediation Board in office on January 1, 1965, shall be deemed to have
been appointed for a term of office which shall expire on July 1 of the
year his term would have otherwise expired. The terms of office of all
successors shall expire three years after the expiration of the terms for
which their predecessors were appointed; but any member appointed to
fill a vacancy occurring prior to the expiration of the term for which his
predecessor was appointed shall be appointed only for the unexpired
term of his predecessor. Vacancies in the Board shall not impair the
powers nor affect the duties of the Board nor of the remaining members
of the Board. Two of the members in office shall constitute a quorum for
the transaction of the business of the Board. Each member of the Board
shall receive necessary traveling and subsistence expenses, or per diem
allowance in lieu thereof, subject to the provisions of law applicable
thereto, while away from the principal office of the Board on business
required by this chapter. No person in the employment of or who is
pecuniarily or otherwise interested in any organization of employees or
any carrier shall enter upon the duties of or continue to be a member of
the Board. Upon the expiration of his term of office a member shall
continue to serve until his successor is appointed and shall have
qualified.
All cases referred to the Board of Mediation and unsettled on June
21, 1934, shall be handled to conclusion by the Mediation Board.
A member of the Board may be removed by the President for
inefficiency, neglect of duty, malfeasance in office, or ineligibility, but
for no other cause.
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The Railway Labor Act of Fifty
Second. Chairman; principal office; delegation of powers; oaths;
seal; report.
The Mediation Board shall annually designate a member to act as
chairman. The Board shall maintain its principal office in the District of
Columbia, but it may meet at any other place whenever it deems it
necessary so to do. The Board may designate one or more of its members
to exercise the functions of the Board in mediation proceedings. Each
member of the Board shall have power to administer oaths and
affirmations;. The Board shall have a seal which shall be judicially
noticed. The Board shall make an annual report to Congress.
Third. Appointment of experts and other employees; salaries of
employees; expenditures.
The Mediation Board may (1) subject to the civil service laws
appoint such experts and assistants to act in a confidential capacity and
such other officers and employees as are essential to the effective
transaction of the work of the Board; (2) in accordance with chapter 51
and subchapter III of chapter 53 of Title 5, fix the salaries of such
experts, assistants, officers, and employees; and (3) make such
expenditures (including expenditures for rent and personal services at the
seat of government and elsewhere, for law books, periodicals, and books
of reference, and for printing and binding, and including expenditures for
salaries and compensation, necessary traveling expenses and expenses
actually incurred for subsistence, and other necessary expenses of the
Mediation Board, Adjustment Board, Regional Adjustment Boards
established under paragraph (w) of section 153 of this title, and boards of
arbitration, in accordance with the provisions of this section and sections
153 and 157 of this title, respectively), as maybe necessary for the
execution of the functions vested in the Board, in the Adjustment Board
and in the boards of arbitration, and as may be provided for by the
Congress from time to time. All expenditures of the Board shall be
allowed and paid on the presentation of itemized vouchers therefor
approved by the chairman.
Fourth. Delegation of powers and duties.
The Mediation Board is authorized by its order to assign, or refer,
any portion of its work, business, or functions arising under this chapter
or any other Act of Congress, or referred to it by Congress or either
branch thereof, to an individual member of the Board or to an employee
or employees of the Board to be designated by such order for action
thereon, and by its order at any time to amend, modify, supplement, or
24
rescind any such assignment or reference. All such orders shall take
effect forthwith and remain in effect until otherwise ordered by the
Board. In conformity with and subject to the order or orders of the
Mediation Board in the premises, [and] such individual member of the
Board or employee designated shall have power and authority to act as to
any of said work, business, or functions so assigned or referred to him
for action by the Board.
Fifth. Transfer of officers and employees of Board of Mediation;
transfer of appropriation.
All officers and employees of the Board of Mediation (except the
members thereof, whose offices are abolished) whose services in the
judgment of the Mediation Board are necessary to the efficient operation
of the Board are transferred to the Board, without change in classification
or compensation; except that the Board may provide for the adjustment
of such classification or compensation to conform to the duties to which
such officers and employees may be assigned.
All unexpended appropriations for the operation of the Board of
Mediation that are available at the time of the abolition of the Board of
Mediation shall be transferred to the Mediation Board and shall be
available for its use for salaries and other authorized expenditures. (May
20, 1926, ch. 347, § 4, 44 Stat. 579; June 21, 1934, ch. 691, § 4, 48 Stat.
1193; Oct. 28, 1949, ch. 782, title XI, § 1106(a), 63 Stat. 972; Aug. 31,
1964, Pub. L. 88-542, 78 Stat. 748.)
REFERENCES IN TEXT
The civil service laws, referred to in the third subd., are classified generally to Title
5, Government Organization and Employees.
CODIFICATION
Provisions setting forth the basic compensation of members of the Board at the rate
of $10,000 per annum have been omitted as superseded by section 5315 of Title 5,
Government Organization and Employees.
In subdiv. third, “subject to the civil service laws, appoint such experts and
assistants to act in a confidential capacity and such other officers and employees” was
substituted for “appoint such experts and assistants to act in a confidential capacity and,
subject to the provisions of the civil-service laws, such other officers and employees”,
since the experts and assistants are now in the classified civil service and subject to the
applicable compensation schedules.
The authority for covering excepted positions into the classified civil service was
given the President by former section 631a of Title 5. By Executive Order 8743, Apr. 25,
1941, set out as a note under section 3301 of Title 5, the President exercised this authority
with respect to many previously excepted positions.
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For positions now covered by the Classified Civil Service, see section 5102 of Title
5. For the power of the Civil Service to determine the applicability of those sections to
specific positions, see section 5103 of Title 5.
AMENDMENTS
1964—Subdiv. first. Pub. L. 88-542 inserted sentences providing that each member
of the Board in office on Jan. 1,1965, shall be deemed to have been appointed for a term
of office which shall expire on July 1 of the year his term would have otherwise expired,
and that upon the expiration of his term of office a member shall continue to serve until
his successor is appointed and shall have qualified, and eliminated provisions which
related to the terms of office of members first appointed.
1949—Subdiv. third. Act Oct. 28, 1949, substituted the “Classification Act of 1949”
for the “Classification Act of 1923”, which for purposes of classification has been
translated as “chapter 51 and subchapter III of chapter 53 of Title 5.”
COMPENSATION OF MEMBERS OF NATIONAL MEDIATION BOARD
Compensation of members, see section 5315 of Title 5, Government Organization
and Employees.
REPEALS
Act Oct. 15, 1949, ch. 695, § 5(a), 63 Stat. 880, formerly set out in the credit of this
section, was repealed by Pub. L. 89-554, § 8(a), Sept. 6, 1966, 80 Stat. 655.
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 157, 181, 182, 184, 185 of this title.
§ 155. Functions of Mediation Board.
First. Disputes within jurisdiction of Mediation Board.
The parties, or either party, to a dispute between an employee or
group of employees and a carrier may invoke the services of the
Mediation Board in any of the following cases:
(a) A dispute concerning changes in rates of pay, rules, or working
conditions not adjusted by the parties in conference.
(b) Any other dispute not referable to the National Railroad
Adjustment Board and not adjusted in conference between the parties or
where conferences are refused.
The Mediation Board may proffer its services in case any labor
emergency is found by it to exist at any time.
In either event the said Board shall promptly put itself in
communication with the parties to such controversy, and shall use its best
efforts, by mediation, to bring them to agreement. If such efforts to bring
about an amicable settlement through mediation shall be unsuccessful,
the said Board shall at once endeavor as its final required action (except
as provided in paragraph third of this section and in section 160 of this
26
title) to induce the parties to submit their controversy to arbitration, in
accordance with the provisions of this chapter.
If arbitration at the request of the Board shall be refused by one or
both parties, the Board shall at once notify both parties in writing that its
mediatory efforts have failed and for thirty days thereafter, unless in the
intervening period the parties agree to arbitration, or an emergency board
shall be created under section 160 of this title, no change shall be made
in the rate of pay, rules, or working conditions or established practices in
effect prior to the time the dispute arose.
Second. Interpretation of agreement.
In any case in which a controversy arises over the meaning or the
application of any agreement reached through mediation under the
provisions of this chapter, either party to the said agreement, or both,
may apply to the Mediation Board for an interpretation of the meaning or
application of such agreement. The said Board shall upon receipt of such
request notify the parties to the controversy, and after a hearing of both
sides give its interpretation within thirty days.
Third. Duties of Board with respect to arbitration of disputes;
arbitrators; acknowledgment of agreement; notice to arbitrators;
reconvening of arbitrators; filing contracts with Board; custody of
records and documents.
The Mediation Board shall have the following duties with respect to
the arbitration of disputes under section 157 of this title:
(a) On failure of the arbitrators named by the parties to agree on the
remaining arbitrator or arbitrators within the time set by section 157 of
this title, it shall be the duty of the Mediation Board to name such
remaining arbitrator or arbitrators. It shall be the duty of the Board in
naming such arbitrator or arbitrators to appoint only those whom the
Board shall deem wholly disinterested in the controversy to be arbitrated
and impartial and without bias as between the parties to such arbitration.
Should, however, the Board name an arbitrator or arbitrators not so
disinterested and impartial, then, upon proper investigation and
presentation of the facts, the Board shall promptly remove such
arbitrator.
If an arbitrator named by the Mediation Board, in accordance with
the provisions of this chapter, shall be removed by such Board as
provided by this chapter, or if such an arbitrator refuses or is unable to
serve, it shall be the duty of the Mediation Board, promptly, to select
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another arbitrator, in the same manner as-provided in this chapter for an
original appointment by the Mediation Board.
(b) Any member of the Mediation Board is authorized to take the
acknowledgment of an agreement to arbitrate under this chapter. When
so acknowledged, or when acknowledged by the parties before a notary
public or the clerk of a district court or a court of appeals of the United
States, such agreement to arbitrate shall be delivered to a member of said
Board or transmitted to said Board, to be filed in its office.
(c) When an agreement to arbitrate has been filed with the
Mediation Board, or with one of its members, as provided by this
section, and when the said Board has been furnished the names of the
arbitrators chosen by the parties to the controversy it shall be the duty of
the Board to cause a notice in writing to be served upon said arbitrators,
notifying them of their appointment, requesting them to meet promptly to
name the remaining arbitrator or arbitrators necessary to complete the
Board of Arbitration, and advising them of the period within which, as
provided by the agreement to arbitrate, they are empowered to name such
arbitrator or arbitrators.
(d) Either party to an arbitration desiring the reconvening of a board
of arbitration to pass upon any controversy arising over the meaning or
application of an award may so notify the Mediation Board in writing,
stating in such notice the question or questions to be submitted to such
reconvened Board. The Mediation Board shall thereupon promptly
communicate with the members of the Board of Arbitration, or a
subcommittee of such Board appointed for such purpose pursuant to a
provision in the agreement to arbitrate, and arrange for the reconvening
of said Board of Arbitration or subcommittee, and shall notify the
respective parties to the controversy of the time and place at which the
Board, or the subcommittee, will meet for hearings upon the matters in
controversy to be submitted to it. No evidence other than that contained
in the record filed with the original award shall be received or considered
by such reconvened Board or subcommittee, except such evidence as
may be necessary to illustrate the interpretations suggested by the parties.
If any member of the original Board is unable or unwilling to serve on
such reconvened Board or subcommittee thereof, another arbitrator shall
be named in the same manner and with the same powers and duties as
such original arbitrator.
(e) Within sixty days after June 21, 1934, every carrier shall file
with the Mediation Board a copy of each contract with its employees in
effect on the 1st day of April 1934, covering rates of pay, rules, and
working conditions. If no contract with any craft or class of its
28
employees has been entered into, the carrier shall file with the Mediation
Board a statement of that fact, including also a statement of the rates of
pay, rules, and working conditions applicable in dealing with such craft
or class. When any new contract is executed or change is made in an
existing contract with any class or craft of its employees covering rates
of pay, rules, or working conditions, or in those rates of pay, rules, and
working conditions of employees not covered by contract, the carrier
shall file the same with the Mediation Board within thirty days after such
new contract or change in existing contract has been executed or rates of
pay, rules, and working conditions have been made effective.
(f) The Mediation Board shall be the custodian of all papers and
documents heretofore filed with or transferred to the Board of Mediation
bearing upon the settlement, adjustment, or determination of disputes
between carriers and their employees or upon mediation or arbitration
proceedings held under or pursuant to the provisions of any Act of
Congress in respect thereto; and the President is authorized to designate a
custodian of the records and property of the Board of Mediation until the
transfer and delivery of such records to the Mediation Board and to
require the transfer and delivery to the Mediation Board of any and all
such papers and documents filed with it or in its possession. (May 20,
1926, ch. 347, § 5, 44 Stat. 580; June 21, 1934, ch. 691, § 5, 48 Stat.
1195; June 25, 1948, ch. 646, § 32(a), 62 Stat. 991; May 24, 1949, ch.
139, § 127, 63 Stat. 107.)
CHANGE OF N AME
Subdiv: third (b) amended by act June 25, 1948, eff. Sept. 1, 1948, as amended by
act May 24, 1949, which substituted “court of appeals” in for “circuit court of appeals”.
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 156, 157,
181, 182, 183, 184, 185 of this title.
§ 156. Procedure in changing rates of pay, rules, and working
conditions.
Carriers and representatives of the employees shall give at least
thirty days’ written notice of an intended change in agreements affecting
rates of pay> rules, or working conditions, and the time and place for the
beginning of conference between the representatives of the parties
interested in such intended changes shall be agreed upon within ten days
after the receipt of said notice, and said time shall be within the thirty
days provided in the notice. In every case where such notice of intended
change has been given, or conferences are being held with reference
thereto, or the services of the Mediation Board have been requested by
either party, or said Board has proffered its services, rates of pay, rules,
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or working conditions shall not be altered by the carrier until the
controversy has been finally acted upon, as required by section 155 of
this title, by the Mediation Board, unless a period of ten days has elapsed
after termination of conferences without request for or proffer of the
services of the Mediation Board. (May 20, 1926, ch. 347, § 6, 44 Stat.
582; June 21, 1934, ch. 691, § 6, 48 Stat. 1197.)
Ex. Ord. No. 9299, Feb. 4,1943, 8 F. R. 1669, provided procedure with respect to
wage and salary adjustments for employees subject to this chapter.
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 152, 157, 181, 182, 184, 185 of this title.
§ 157. Arbitration.
First. Submission of controversy to arbitration.
Whenever a controversy shall arise between a carrier or carriers and
its or their employees which is not settled either in conference between
representatives of the parties or by the appropriate adjustment board or
through mediation, in the manner provided in sections 151-156 of this
title such controversy may, by agreement of the parties to such
controversy, be submitted to the arbitration of a board of three (or, if the
parties to the controversy so stipulate,, of six) persons: Provided,
however, That the failure or refusal of either party to submit a
controversy to arbitration shall not be construed as a violation of any
legal obligation imposed upon such party by the terms of this chapter or
otherwise.
Second. Manner of selecting board of arbitration.
Such board of arbitration shall be chosen in the following manner:
(a) In the case of a board of three the carrier or carriers and the
representatives of the employees, parties respectively to the agreement to
arbitrate, shall each name one arbitrator; the two arbitrators thus chosen
shall select a third arbitrator. If the arbitrators chosen by the parties shall
fail to name the third arbitrator within five days after their first meeting,
such third arbitrator shall be named by the Mediation Board.
(b) In the case of a board of six the carrier or carriers and the
representatives of the employees, parties respectively to the agreement to
arbitrate, shall each name two arbitrators; the four arbitrators thus chosen
shall, by a majority vote, select the remaining two arbitrators. If the
arbitrators chosen by the parties shall fail to name the two arbitrators
within fifteen days after their first meeting, the said two arbitrators, or as
30
many of them as have not been named, shall be named by the Mediation
Board.
Third. Board of arbitration; organization; compensation; procedure.
(a) Notice of selection or failure to select arbitrators.
When the arbitrators selected by the respective parties have agreed
upon the remaining arbitrator or arbitrators, they shall notify the
Mediation Board; and, in the event of their failure to agree upon any or
upon all of the necessary arbitrators within the period fixed by this
chapter, they shall, at the expiration of such period, notify the Mediation
Board of the arbitrators selected, if any, or of their failure to make or to
complete such selection.
(b) Organization of board; procedure.
The board of arbitration shall organize and select its own chairman
and make all necessary rules for conducting its hearings: Provided,
however, That the board of arbitration shall be bound to give the parties
to the controversy a full and fair hearing, which shall include an
opportunity to present evidence in support of their claims, and an
opportunity to present their case in person, by counsel, or by other
representative as they may respectively elect.
(c) Duty to reconvene; questions considered.
Upon notice from the Mediation Board that the parties, or either
party, to an arbitration desire the reconvening of the board of arbitration
(or a subcommittee of such board of arbitration appointed for such
purpose pursuant to the agreement to arbitrate) to pass upon any
controversy over the meaning or application of their award, the board, or
its subcommittee, shall at once reconvene. No question other than, or in
addition to, the questions relating to the meaning or application of the
award, submitted by the party or parties in writing, shall be considered
by the reconvened board of arbitration or its subcommittee.
Such rulings shall be acknowledged by such board or subcommittee
thereof in the same manner, and filed in the same district court clerk’s
office as the original award and become a part thereof.
(d) Competency of arbitrators.
No arbitrator, except those chosen by the Mediation Board, shall be
incompetent to act as an arbitrator because of his interest in the
controversy to be arbitrated, or because of his connection with or
partiality to either of the parties to the arbitration.
(e) Compensation and expenses.
Each member of any board of arbitration created under the
provisions of this chapter named by either party to the arbitration shall be
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The Railway Labor Act of Fifty
compensated by the party naming him. Each arbitrator selected by the
arbitrators or named by the Mediation Board shall receive from the
Mediation Board such compensation as the Mediation Board may fix,
together with his necessary traveling expenses and expenses actually
incurred for subsistence, while serving as an arbitrator.
(f) Award; disposition of original and copies.
The board of arbitration shall furnish a certified copy of its award to
the respective parties to the controversy, and shall transmit the original,
together with the papers and proceedings and a transcript of the evidence
taken at the hearings, certified under the hands of at least a majority of
the arbitrators, to the clerk of the district court of the United States for
the district wherein the controversy arose or the arbitration is entered
into, to be filed in said clerk’s office as hereinafter provided. The said
board shall also furnish a certified copy of its award, and the papers and
proceedings, including testimony relating thereto, to the Mediation Board
to be filed in its office; and in addition a certified copy of its award shall
be filed in the office of the Interstate Commerce Commission: Provided,
however, That such award shall not be construed to diminish or
extinguish any of the powers or duties of the Interstate Commerce
Commission, under the Interstate Commerce Act, as amended.
(g) Compensation of assistants to board of arbitration; expenses;
quarters.
A board of arbitration may, subject to the approval of the Mediation
Board, employ and fix the compensation of such assistants as it deems
necessary in carrying on the arbitration proceedings. The compensation
of such employees, together with their necessary traveling expenses and
expenses actually incurred for subsistence, while so employed, and the
necessary expenses of boards of arbitration, shall be paid by the
Mediation Board.
Whenever practicable, the board shall be supplied with suitable
quarters in any Federal building located at its place of meeting or at any
place where the board may conduct its proceedings or deliberations.
(h) Testimony before board; oaths; attendance of witnesses;
production of documents; subpoenas; fees.
All testimony before said board shall be given under oath or
affirmation, and any member of the board shall have the power to
administer oaths or affirmations. The board of arbitration, or any member
thereof, shall have the power to require the attendance of witnesses and
the production of such books, papers, contracts, agreements, and
documents as may be deemed by the board of arbitration material to a
just determination of the matters submitted to its arbitration, and may for
32
that purpose request the clerk of the district court of the United States for
the district wherein said arbitration is being conducted to issue the
necessary subpoenas, and upon such request the said clerk or his duly
authorized deputy shall be, and he is, authorized, and it shall be his duty,
to issue such subpoenas.
Any witness appearing before a board of arbitration shall receive the
same fees and mileage as witnesses in courts of the United States, to be
paid by the party securing the subpoena. (May 20, 1926, ch. 347, § 7, 44
Stat. 582; June 21, 1934, ch. 691, § 7, 48 Stat. 1197; Oct. 15, 1970, Pub.
L. 91-452, title II, § 238, 84 Stat. 930.)
REFERENCES IN TEXT
The Interstate Commerce Act, as amended, referred to in subpar. (f) of par. third, is
classified to chapters 1, 8, 12, 13, and 19 of Title 49, Transportation.
AMENDMENTS
1970—Par. Third. Pub. L. 91-452 in subpar. (h) struck out the provisions
authorizing the board to invoke the aid of the United States courts to compel witnesses to
attend and testify and to produce such books, papers, contracts, agreements, and
documents to the same extent and under the same conditions and penalties as provided
for in the Interstate Commerce Act.
E FFECTIVE D ATE OF 1970 AMENDMENT
Amendment by Pub. L. 91-452 effective on the sixtieth day following Oct. 15,1970,
see section 260 of Pub. L. 91^152, set out as a note under section 6001 of Title 18,
Crimes and Criminal Procedure.
SAVINGS P ROVISION
Amendment by Pub. L. 91-452 not to affect any immunity to which any individual is
entitled under this section by reason of any testimony given before the sixtieth day
following Oct. 15, 1970, see section 260 of Pub. L. 91-452, set out as a note under
section 6001 of Title 18, Crimes and Criminal Procedure.
WORK RULES D ISPUTE
Pub. L. 88-108, Aug. 28, 1963, 77 Stat. 132, provided: “[Sec. 1. Settlement of
disputes]. That no carrier which served the notices of November 2, 1959, and no labor
organizations which received such notices or served the labor organization notices of
September 7, 1960, shall make any change except by agreement, or pursuant to an
arbitration award as hereinafter provided, in rates of pay, rules, or working conditions
encompassed by any of such notices, or engage in any strike or lockout over .any dispute
arising from any of such notices. Any action heretofore taken which would be prohibited
by the foregoing sentence shall be forthwith rescinded and the status existing
immediately prior to such action restored.
“Sec. 2. [Arbitration board]. There is hereby established an arbitration board to
consist of seven members. The representatives of the carrier and organization parties to
the aforesaid dispute are hereby directed, respectively, within five days after the
enactment hereof [Aug. 28,1963] each to name two persons to serve as members of such
arbitration board. The four members thus chosen shall select three additional members.
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The Railway Labor Act of Fifty
The seven members shall then elect a chairman. If the members chosen by the parties
shall fail to name one or more of the additional three members within ten days, such
additional members shall be named by the President. If either party fails to name a
member or members to the arbitration board within the five days provided, the President
shall name such member or members in lieu of such party and shall also name the
additional three members necessary to constitute a board of seven members, all within ten
days after the date of enactment of this joint resolution [Aug. 28, 1963]. Notwithstanding
any other provision of law, the National Mediation Board is authorized and directed: (1)
to compensate the arbitrators not named by the parties at a rate not in excess of $100 for
each day together with necessary travel and subsistence expenses, and (2) to provide such
services and facilities as may be necessary and appropriate in carrying out the purposes of
this joint resolution.
“Sec. 3. [Decision of board]. Promptly upon the completion of the naming of the
arbitration board the Secretary of Labor shall furnish to the board and to the parties to the
dispute copies of his statement to the parties of August 2, 1963, and the papers therewith
submitted .to the parties, together with memorandums and such other data as the board
may request setting forth the matters with respect to which the parties were in tentative
agreement and the extent of disagreement with respect to matters on which the parties
were not in tentative agreement. The arbitration board shall make a decision, pursuant to
the procedures hereinafter set forth, as to what disposition shall be made of those portions
of the carriers’ notices of November 2, 1959, identified as ‘Use of Firemen (Helpers) on
Other Than Steam Power’ and ‘Consist of Road and Yard Crews’ and that portion of the
organizations’ notices of September 7, 1960, identified as ‘Minimum Safe Crew Consist’
and implementing proposals pertaining thereto. The arbitration board shall incorporate in
such decision any matters on which it finds the parties were in agreement, shall resolve
the matters on which the parties were not in agreement, and shall, in making its award,
give due consideration to those matters on which the parties were in tentative agreement.
Such award shall be binding on both the carrier and organization parties to the dispute
and shall constitute a complete and final disposition of the aforesaid issues covered by the
decision of the board of arbitration.
“Sec. 4. [Award]. To the extent not inconsistent with this joint resolution the
arbitration shall be conducted pursuant to sections 7 and 8 of the Railway Labor Act [this
section and section 158 of this title], the board’s award shall be made and filed as
provided in said sections and shall be subject to section 9 of said Act [section 159 of this
title]. The United States District Court for the District of Columbia is hereby designated
as the court in which the award is to be filed, and the arbitration board shall report to the
National Mediation Board in the same manner as arbitration boards functioning pursuant
to the Railway Labor Act [this chapter]. The award shall continue in force for such period
as the arbitration board shall determine in its award, but not to exceed two years from the
date the award takes effect, unless the parties agree otherwise.
“Sec. 5. [Hearings]. The arbitration board shall begin its hearings thirty days after
the enactment of this joint resolution [Aug. 28,1963] or on such earlier date as the parties
to the dispute and the board may agree upon and shall make and file its award not later
than ninety days after the enactment of this joint resolution [Aug. 28, 1963]: Provided,
however, That said award shall not become effective until sixty days after the filing of the
award.
“Sec. 6. [Collective bargaining for issues not arbitrated]. The parties to the disputes
arising from the aforesaid notices shall immediately resume collective bargaining with
respect to all issues raised in the notices of November 2, 1959, and September 7, 1960,
not to be disposed of by arbitration under section 3 of this joint resolution and shall exert
34
every reasonable effort to resolve such issues by agreement. The Secretary of Labor and
the National Mediation Board are hereby directed to give all reasonable assistance to the
parties and to engage in mediatory action directed toward promoting such agreement.
“Sec. 7. [Considerations affecting award; enforcement.]
“(a) In making any award under this joint resolution the arbitration board
established under section 2 shall give due consideration to the effect of the proposed
award upon adequate and safe transportation service to the public and upon the interests
of the carrier and employee’s affected, giving due consideration to the narrowing of the
areas of disagreement which has been accomplished in bargaining and mediation.
“(b) The obligations imposed by this joint resolution, upon suit by the Attorney
General, shall be enforcible through such orders as may be necessary by any court of the
United States having jurisdiction of any of the parties.
“Sec. 8. [Expiration date]. This joint resolution shall expire one hundred and eighty
days after the date of its enactment [Aug. 28,1963], except that it shall remain in effect
with respect to the last sentence of section 4 for the period prescribed in that sentence.
“Sec. 9. [Separability of provisions]. If any provision of this joint resolution or the
application thereof is held invalid, the remainder of this joint resolution and the
application of such provision to other parties or in other circumstances not held invalid
shall not be affected thereby.”
CROSS REFERENCES
Immunity of witnesses, see section 6001 et seq. of Title 18, Crimes and Criminal
Procedure.
FEDERAL RULES OF CIVIL PROCEDURE
Subpoena, see rule 45, Title 28, Appendix, Judiciary and Judicial Procedure.
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 154, 155, 181, 182, 184, 185 of this title; title
18 section 6001.
§ 158. Agreement to arbitrate; form and contents; signatures and
acknowledgment; revocation.
The agreement to arbitrate—
(a) Shall be in writing;
(b) Shall stipulate that the arbitration is had under the provisions of
this chapter;
(c) Shall state whether the board of arbitration is to consist of three
or of six members;
(d) Shall be signed by the duly accredited representatives of the
carrier or carriers and the employees, parties respectively to the
agreement to arbitrate, and shall be acknowledged by said parties before
a notary public, the clerk of a district court or court of appeals of the
United States, or before a member of the Mediation Board, and, when so
acknowledged, shall be filed in the office of the Mediation Board;
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The Railway Labor Act of Fifty
(e) Shall state specifically the questions to be submitted to the said
board for decision; and that, in its award or awards, the said board shall
confine itself strictly to decisions as to the questions so specifically
submitted to it;
(f) Shall provide that the questions, or any one or more of them;
submitted by the parties to the board of arbitration may be withdrawn
from arbitration on notice to that effect signed by the duly accredited
representatives of all the parties and served on the board of arbitration;
(g) Shall stipulate that the signatures of a majority of said board of
arbitration affixed to their award shall be competent to constitute a valid
and binding award;
(h) Shall fix a period from the date of the appointment of the
arbitrator or arbitrators necessary to complete the board (as provided for
in the agreement) within which the said board shall commence its
hearings;
(i) Shall fix a period from the beginning of the hearings within
which the said board shall make and file its award: Provided, That the
parties may agree at any time upon an extension of this period;
(j) Shall provide for the date from which the award shall become
effective and shall fix the period during which the award shall continue
in force;
(k) Shall provide that the award of the board of arbitration and the
evidence of the proceedings before the board relating thereto, when
certified under the hands of at least a majority of the arbitrators, shall be
filed in the clerk’s office of the district court of the United States for the
district wherein the controversy arose or the arbitration was entered into,
which district shall be designated in the agreement; and, when so filed,
such award and proceedings shall constitute the full and complete record
of the arbitration;
(l) Shall provide that the award, when so filed, shall be final and
conclusive upon the parties as to the facts determined by said award and
as to the merits of the controversy decided;
(m) Shall provide that any difference arising as to the meaning, or the
application of the provisions, of an award made by a board of arbitration
shall be referred back for a ruling to the same board, or, by agreement,,
to a subcommittee of such board; and that such ruling, when
acknowledged in the same manner, and filed in the same district court
clerk’s office, as the original award, shall be a part of and shall have the
same force and effect as such original award; and
(n) Shall provide that the respective parties to the award will each
faithfully execute the same.
36
The said agreement to arbitrate, when properly signed and
acknowledged as herein provided, shall not be revoked by a party to such
agreement: Provided, however, That such agreement to arbitrate may at
any time be revoked and canceled by the written agreement of both
parties, signed by their duly accredited representatives, and (if no board
of arbitration has yet been constituted under the agreement) delivered to
the Mediation Board or any member thereof; or, if the board of
arbitration has been constituted as provided by this chapter, delivered to
such board of arbitration. (May 20, 1926, ch. 347, § 8, 44 Stat. 584; June
21, 1934, ch. 691, § 7, 48 Stat. 1197; June 25, 1948, ch. 646, § 32(a), 62
Stat. 991; May 24, 1949, ch. 139, § 127, 63 Stat. 107.)
CHANGE OF N AME
Clause (d) amended by act June 25, 1948, eff. Sept. 1, 1948, as amended by act May
24, 1949, which substituted “court of appeals” for “circuit court of appeals”.
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 181, 182, 184, 185 of this title.
§ 159. Award and judgment thereon; effect of chapter on individual
employee. First. Filing of award.
The award of a board of arbitration, having been acknowledged as
herein provided, shall be filed in the clerk’s office of the district court
designated in the agreement to arbitrate.
Second. Conclusiveness of award; judgment.
An award acknowledged and filed as herein provided shall be
conclusive on the parties as to the merits and facts of the controversy
submitted to arbitration, and unless, within ten days after the filing of the
award, a petition to impeach the award, on-the grounds hereinafter set
forth, shall be filed in the clerk’s office of the court in which the award
has been filed, the court shall enter judgment on the award, which
judgment shall be final and conclusive on the parties.
Third. Impeachment of award; grounds.
Such petition for the impeachment or contesting of any award so
filed shall be entertained by the court only on one or more of the
following grounds:
(a) That the award plainly does not conform to the substantive
requirements laid down by this chapter for such awards, or that the
proceedings were not substantially in conformity with this chapter;
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The Railway Labor Act of Fifty
(b) That the award does not conform, nor confine itself, to the
stipulations of the agreement to arbitrate; or
(c) That a member of the board of arbitration rendering the award
was guilty of fraud or corruption; or that a party to the arbitration
practiced fraud or corruption which fraud or corruption affected the
result of the arbitration: Provided, however, That no court shall entertain
any such petition on the ground that an award is invalid for uncertainty;
in such case the proper remedy shall be a submission of such award to a
reconvened board, or subcommittee thereof, for interpretation, as
provided by this chapter: Provided further, That an award contested as
herein provided shall be construed liberally by the court, with a view to
favoring its validity, and that no award shall be set aside for trivial
irregularity or clerical error, going only to form and not to substance.
Fourth. Effect of partial invalidity of award.
If the court shall determine that a part of the award is invalid on
some ground or grounds designated in this section as a ground of
invalidity, but shall determine that a part of the award is valid, the court
shall set aside the entire award: Provided, however, That, if the parties
shall agree thereto, and if such valid and invalid parts are separable, the
court shall set aside the invalid part, and order judgment to stand as to
the valid part.
Fifth. Appeal; record.
At the expiration of 10 days from the decision of the district court
upon the petition filed as aforesaid, final judgment shall be entered in
accordance with said decision, unless during said 10 days either party
shall appeal there from to the court of appeals. In such case only such
portion of the record shall be transmitted to the appellate court as is
necessary to the proper understanding and consideration of the questions
of law presented by said petition and to be decided.
Sixth. Finality of decision of court of appeals.
The determination of said court of appeals upon said questions shall
be final, and, being certified by the clerk thereof to said district court,
judgment pursuant thereto shall thereupon be entered by said district
court.
Seventh. Judgment where petitioner’s contentions are sustained.
If the petitioner’s contentions are finally sustained, judgment shall be
entered setting aside the award in whole or, if the parties so agree, in
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part; but in such case the parties may agree upon a judgment to be
entered disposing of the subject matter of the controversy, which
judgment when entered shall have the same force and effect as judgment
entered upon an award.
Eighth. Duty of employee to render service without consent; right to
quit.
Nothing in this chapter shall be construed to require an individual
employee to render labor or service without his consent, nor shall
anything in this chapter be construed to make the quitting of his labor or
service by an individual employee an illegal act; nor shall any court issue
any process to compel the performance by an individual employee of
such labor or service, without his consent. (May 20,1926, ch. 347, § 9, 44
Stat. 585; June 25, 1948, ch. 646, § 32(a), 62 Stat. 991; May 24, 1949,
ch. 139, § 127, 63 Stat. 107.)
CHANGE OF N AME
Act June 25, 1948, eff. Sept. 1, 1948, as amended by act May 24, 1949, substituted
“court of appeals” for “circuit court of appeals”.
FEDERAL RULES OF CIVIL PROCEDURE
Application of rules, see rule 81, Title 28, Appendix, Judiciary and Judicial
Procedure.
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 181, 182, 184, 185 of this title.
§ 160. Emergency Board.
If a dispute between a carrier and its employees be not adjusted
under the foregoing provisions of this chapter and should, in the
judgment of the Mediation Board, threaten substantially to interrupt
interstate commerce to a degree such as to deprive any section of the
country of essential transportation service, the Mediation Board shall
notify the President, who may thereupon, in his discretion, create a board
to investigate and report respecting such dispute. Such board shall be
composed of such number of persons as to the President may seem
desirable: Provided, however, That no member appointed shall be
pecuniarily or otherwise interested in any organization of employees or
any carrier. The compensation of the members of any such board shall be
fixed by the President. Such board shall be created separately in each
instance and it shall investigate promptly the facts as to the dispute and
make a report thereon to the President within thirty days from the date of
its creation.
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The Railway Labor Act of Fifty
There is authorized to be appropriated such sums as may be
necessary for the expenses of such board, including the compensation
and the necessary traveling expenses and expenses actually incurred for
subsistence, of the members of the board. All expenditures of the board
shall be allowed and paid on the presentation of itemized vouchers
therefor approved by the chairman.
After the creation of such board and for thirty days after such board
has made its report to the President, no change, except by agreement,
shall be made by the parties to the controversy in the conditions out of
which the dispute arose. (May 20,1926, ch. 347, § 10, 44 Stat. 586; June
21, 1934, ch. 691, § 7, 48 Stat. 1197.)
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 155, 181, 182, 184, 185 of this title.
§ 161. Effect of partial invalidity of chapter.
If any section, subsection, sentence, clause, or phrase of this chapter
is for any reason held to be unconstitutional, such decision shall not
affect the validity of the remaining portions of this chapter. All Acts or
parts of Acts inconsistent with the provisions of this chapter are repealed.
(May 20, 1926, ch. 347, § 11, 44 Stat. 587; June 21, 1934, ch. 691, § 8,
48 Stat. 1197.)
CODIFICATION
Section is from act June 21, 1934. Provisions on this subject formerly constituting
section read as follows: “If any provision of this Act, or the application thereof to any
person or circumstance, is held invalid, the remainder of the Act, and the application of
such provision to other persons or circumstances, shall not be affected thereby.”
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 181, 182, 184, 185 of this title.
§ 162. Appropriation.
There is authorized to be appropriated such sums as may be
necessary for expenditure by the Mediation Board in carrying out the
provisions of this chapter. (May 20, 1926, ch. 347, § 12, 44 Stat. 587;
June 21, 1934, ch. 691, § 7, 48 Stat. 1197.)
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 181, 182, 184, 185 of this title.
§ 163. Repeal of prior legislation; exception.
Chapters 6 and 7 of. this title, providing for mediation, conciliation,
and arbitration, and all Acts and parts of Acts in conflict with the
40
provisions of this chapter are repealed, except that the members,
secretary, officers, employees, and agents of the Railroad Labor Board,
in office on May 20, 1926, shall receive their salaries for a period of 30
days from such date, in the same manner as though this chapter had not
been passed. (May 20, 1926, ch. 347, § 14, 44 Stat. 587.)
SECTION REFERRED TO IN O THER SECTIONS
This section is. referred to in sections 181, 182, 184, 185 of this title.
§ 164. Repealed. Oct. 10, 1940, ch. 851, § 4, 54 Stat. 1111.
Section, act Feb. 11, 1927, ch. 104, § 1, 44 Stat. 1072, related to
advertisements for proposals for purchases or services rendered for
Board of Mediation, including arbitration boards, and is covered by
section 5 of Title 41, Public Contracts.
CARRIERS BY AIR
§ 181. Application of sections 151 to 152 and 154 to 163 to carriers
by air.
All of the provisions of sections 151 to 152 and 154 to 163 of this
title are extended to and shall cover every common carrier by air engaged
in interstate or foreign commerce, and every carrier by air transporting
mail for or under contract with the United States Government, and every
air pilot or other person who performs any work as an employee or
subordinate official, of such carrier or carriers, subject to its or their
continuing authority to supervise and direct the manner of rendition of
his service. (May 20, 1926, ch. 347, § 201, as added Apr. 10, 1936, ch.
166, 49 Stat. 1189.)
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 183,184, 185, 187, 188 of this title; title 29
section 213; title 49 section 1371.
§ 182. Same; duties, penalties, benefits, and privileges.
The duties, requirements, penalties, benefits, and privileges
prescribed and established by the provisions of sections 151 to 152 and
154 to 163 of this title shall apply to said carriers by air and their
employees in the same manner and to the same extent as though such
carriers and their employees were specifically included within the
definition of “carrier” and “employee”, respectively, in section 151 of
this title. (May 20,1926, ch. 347, § 202, as added Apr. 10, 1936, ch. 166,
49 Stat. 1189.)
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SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 183,184,185, 187, 188 of this title; title 29
section 213; title 49 section 1371.
§ 183. Disputes within jurisdiction of Mediation Board.
The parties or either party to a dispute between an employee or a
group of employees and a carrier or carriers by air may invoke the
services of the National Mediation Board and the jurisdiction of said
Mediation Board is extended to any of the following cases:
(a) A dispute concerning changes in rates of pay, rules, or working
conditions not adjusted by the parties in conference.
(b) Any other dispute not referable to an adjustment board, as
hereinafter provided, and not adjusted in conference between the parties,
or where conferences are refused.
The National Mediation Board may proffer its services in case any
labor emergency is found by it to exist at any time.
The services of the Mediation Board may be invoked in a case under
sections 181 to 188 of this title in the same manner and to the same
extent as are the disputes covered by section 155 of this title. (May 20,
1926, ch. 347, § 203, as added Apr. 10, 1936, ch. 166, 49 Stat. 1189.)
REFERENCES IN TEXT
Section 186 of this title, included within the reference to sections 181 to 188 of this
title, has been omitted’from this Code as executed.
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 183, 185,187,188 of this title; title 29 section
213; title 49 section 1371.
§ 184. System, group, or regional boards of adjustment.
The disputes between an employee or group of employees and a
carrier or carriers by air growing out of grievances, or out of the
interpretation or application of agreements concerning rates of pay, rules,
or working conditions, including cases pending and unadjusted on April
10, 1936 before the National Labor Relations Board, shall be handled in
the usual manner up to and including the chief operating officer of the
carrier designated to handle such disputes; but, failing to reach an
adjustment in this manner, the disputes may be referred by petition of the
parties or by either party to an appropriate adjustment board, as
hereinafter provided, with a full statement of the facts and supporting
data bearing upon the disputes.
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It shall be the duty of every carrier and of its employees, acting
through their representatives, selected in accordance with the provisions
of sections 181 to 188 of this title, to establish a board of adjustment of
jurisdiction not exceeding the jurisdiction which may be lawfully
exercised by system, group, or regional boards of adjustment, under the
authority of section 153 of this title.
Such boards of adjustment may be established by agreement between
employees and carriers either on any individual carrier, or system, or
group of carriers by air and any class or classes of its or their employees;
or pending the establishment of a permanent National Board of
Adjustment as hereinafter provided. Nothing in sections 151 to 163 and
181-188 of this title shall prevent said carriers by air, or any class or
classes of their employees, both acting through their representatives
selected in accordance with provisions of sections 181 to 188 of this title,
from mutually agreeing to the establishment of a National Board of
Adjustment of temporary duration and of similarly limited jurisdiction.
(May 20, 1926, ch. 347, § 204, as added Apr. 10, 1936, ch. 166, 49 Stat.
1189.)
REFERENCES IN TEXT
Section 186 of this title, included within the reference to sections 181 to 188 of this
title, has been omitted from this Code as executed.
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 184, 185, 187,188 of this title; title 29 section
213; title 49 section 1371.
§ 185. National Air Transport Adjustment Board.
When, in the judgment of the National Mediation Board, it shall be
necessary to have a permanent national board of adjustment in order to
provide for the prompt and orderly settlement of disputes between said
carriers by air, or any of them, and its or their employees, growing out of
grievances or out of the interpretation or application of agreements
between said carriers by air or any of them, and any class or classes of its
or their employees, covering rates of pay, rules, or working conditions,
the National Mediation Board is empowered and directed, by its order
duly made, published, and served, to direct the said carriers by air and
such labor organizations of their employees, national in scope, as have
been or may be recognized in accordance with the provisions of section
151 to 163 and 181 to 188 of this title, to select and designate four
representatives who shall constitute a board which shall be known as the
“National Air Transport Adjustment Board.” Two members of said
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The Railway Labor Act of Fifty
National Air Transport Adjustment Board shall be selected by said
carriers by air and two members by the said labor organizations of the
employees, within thirty days after the date of the order of the National
Mediation Board, in the manner and by the procedure prescribed by
section 153 of this title for the selection and designation of members of
the National Railroad Adjustment Board. The National Air Transport
Adjustment Board shall meet within forty days after the date of the order
of the National Mediation Board directing the selection and designation
of its members and shall organize and adopt rules for conducting its
proceedings, in the manner prescribed in section 153 of this title.
Vacancies in membership or office shall be filled, members shall be
appointed in case of failure of the carriers or of labor organizations of the
employees to select and designate representatives, members of the
National Air Transport Adjustment Board shall be compensated,
hearings shall be held, findings and awards made, stated, served, and
enforced, and the number and compensation of any necessary assistants
shall be determined and the compensation of such employees shall be
paid, all in the same manner and to the same extent as provided with
reference to the National Railroad Adjustment Board by section 153 of
this title. The powers and duties prescribed and established by the
provisions of section 153 of this title with reference to the National
Railroad Adjustment Board and the several divisions thereof are
conferred upon and shall be exercised and performed in like manner and
to the same extent by the said National Air Transport Adjustment Board,
not exceeding, however, the jurisdiction conferred upon said National
Air Transport Adjustment Board by the provisions of sections 181 to 188
of this title. From and after the organization of the National Air
Transport Adjustment Board, if any system, group, or regional board of
adjustment established by any carrier or carriers by air and any class or
classes of its or their employees is not satisfactory to either party thereto,
the said party, upon ninety days’ notice to the other party, may elect to
come under the jurisdiction of the National Air Transport Adjustment
Board. (May 20, 1926, ch. 347, § 205, as added Apr. 10, 1936, ch. 166,
49 Stat. 1190.)
REFERENCES IN TEXT
Section 186 of this title, included within the reference to sections 181 to 188 of this
title, has been omitted from this Code as executed.
FEDERAL RULES OF CIVIL PROCEDURE
Application of rules, see rule 81, Title 28, Appendix, Judiciary and Judicial
Procedure. Effect of rules on this section,.see note by Advisory Committee under rule 81.
44
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 183, 184, 187,188 of this title; title 29 section
213; title 49 section 1371.
§ 186. Pending cases before Labor Relations Board transferred to
Mediation Board.
CODIFICATION
Section, act May 20, 1926, ch. 347, § 206, as added Apr. 10, 1936, ch. 166, 49 Stat.
1191, which transferred certain pending cases before the National Labor Relations Board
to the Mediation Board, was omitted as executed.
§ 187. Separability of provisions.
In any provision of sections 181 to 188 of this title or application
thereof to any person or circumstance is held invalid, the remainder of
such sections and the application of such provision to other persons or
circumstances shall not be affected thereby. (May 20, 1926, ch. 347, §
207, as added Apr. 10, 1936, ch. 166, 49 Stat. 1191.)
RREFERENCES IN TEXT
Section 186 of this title, included within the reference to sections 181 to 188 of this
title, has been omitted from this Code as executed.
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections, 183,184,185, 188 of this title; title 29 section
213; title 49 section 1371.
§ 188. Appropriation authorized.
There is authorized to be appropriated such sums as may be
necessary for expenditure by the Mediation Board in carrying out the
provisions of sections 181 to 187 of this title. (May 20, 1926, ch. 347, §
208, as added Apr. 10, 1936, ch. 166, 49 Stat. 1191.)
REFERENCES IN TEXT
Section 186 of this title, included within the reference to sections 181 to 188 of this
title, has been omitted from this Code as executed.’
SECTION REFERRED TO IN O THER SECTIONS
This section is referred to in sections 183, 184, 185,187 of this title; title 29 section
213; title 49 section 1371.
U.S. GOVERNMENT PRINTING OFFICE: 1991—304-041/50368
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