WATCHING WASHINGTON, RAILWAY AGE NOVEMBER 2024 ISSUE: In response to an early October economy-jolting dock workers’ strike—now suspended until mid-January—Rep. Michelle Steel (R-Calif.) introduced a “Safeguarding Our Supply Chain Act” (H.R. 9911) to transfer maritime industry employees from National Labor Relations Act (NLRA) coverage to that of the Railway Labor Act (RLA) in hopes of preventing future work stoppages.
Written collaboratively in 1926 by rail labor and management, and passed by Congress without substantive change, the RLA promotes jaw-jaw to prevent war-war and resulting work stoppages that create national emergencies by impeding the flow of interstate commerce. Concluding commercial airlines are similarly vital to interstate commerce, Congress added them to RLA coverage in 1936—but never the maritime industry.
So it is that maritime and most other private-sector labor relations are governed by the NLRA, which differs significantly from the RLA.
The NLRA lacks the RLA’s mandatory and often lengthy mediation requirements that help labor and management identify mutually advantageous outcomes. It has no provision for creating Presidential Emergency Boards (PEBs) to investigate disputes and make non-binding settlement recommendations. And the NLRA has no compulsory binding arbitration procedures for resolving Minor Disputes over contract application and interpretation. Where RLA-governed wage, benefits and work rules contracts remain in full force until amended, NLRA-governed contracts contain expiration dates, and the NLRA contains an explicit right to strike.
That there hasn’t been a nationwide railroad work stoppage since 1992 is evidence of the RLA’s success in keeping workers off picket lines.
But widespread maritime strikes also are few. Not since 1977 has there been an East and Gulf Coast ports strike such as that of Oct. 3, and not since 2002 has there been a widespread West Coast ports strike.
No matter their infrequence, strikes impeding the flow of interstate commerce have potential to create a national emergency. Estimates of the economic cost of the October Maine-Texas port shutdown are as high as $4.5 billion daily—more than twice the $2 billion estimated daily cost of a nationwide rail work stoppage.
Although Steel’s bill has slim chance of passage in the waning days of this disturbingly divided Congress, it may be introduced again when a new Congress convenes in 2025—especially if dockworkers resume their strike and should be taken seriously.
Is RLA Expansion a Solution?
An appropriate question for stakeholders is whether expanding RLA coverage to the maritime industry is the appropriate solution to protecting the flow of interstate commerce.
While the RLA can keep parties at the bargaining table longer than the NLRA, strikes, while few, can and do occur in RLA-governed industries. That their duration historically has been short is because Congress, after the RLA has run its course, typically heads-off or quickly ends railroad work stoppages with legislation imposing terms of settlement. Congress can similarly prevent or end maritime strikes without first transferring dock workers to RLA coverage.
If the objective is to shield Congress from picking labor-dispute winners and losers, there is an array of better options than H.R. 9911. Each could be applied to every industry engaged in interstate commerce, airlines and railroads included.
Among the Alternatives
In 1949, labor attorney Leroy Marceau and economist Richard A. Musgrove proposed barring unions from striking and employers from locking out workers while placing the parties in the same economic position as if a strike occurred.
The employer would pay wages so high it would stand in the same lost-profits position as if a strike occurred, while employees would be paid so little they would be under the same economic pressure to settle as if they were on picket lines. A federal court would set the wage amounts, with confiscated dollars paid the U.S. Treasury.
In 1960, law professor Archibald Cox recommended an “arsenal of weapons” approach to give the President five legislative options—some mild, some severe—for use where a labor dispute threatens to interrupt substantially interstate commerce. Uncertainty as to the form and extent of government intervention would serve as a cudgel to encourage peaceful settlement.
- The President could appoint fact-finders with power to mediate and make public settlement recommendations—much as the National Mediation Board does under the RLA.
- Or, the President could recommend, as does the RLA, voluntary binding arbitration. If rejected, a fact-finding board would publicly shame the naysayers “for imperiling the national health or safety by forcing a strike instead of accepting an impartial decision.”
- Or, the President could obtain federal court injunctions to prevent a work stoppage, forcing disputants to remain at the bargaining table for up to 12 additional months as opposed to the RLA’s three separate 30-day cooling-off periods or the NLRA’s 80 days.
- Or, the President could seize railroads party to the dispute—as Presidents Woodrow Wilson, Franklin D. Roosevelt and Harry S. Truman did during two World Wars and the Korean conflict. Seizure keeps workers on the job until the dispute is settled peacefully. It is considered so objectionable—with its accompanying wage and benefits freeze, and rail CEOs reporting to federal officials—that the parties have strong incentive to settle ahead of federal control.
- Or, the President and Congress could allow a work stoppage to occur. Cox said interstate commerce impeding strikes may not be so catastrophic as predicted. Faced with a work stoppage that would not quickly be halted by Congress, labor and management have greater incentive to settle peacefully to avoid their own hardships. Former Chicago & North Western Railway CEO Robert Schmiege wrote, “A decision by management to force a collective bargaining dispute into a test of economic power rarely passes a cost/benefit analysis.” Former Brotherhood of Locomotive Engineers President Larry McFather wrote, “There may be few things as gut-wrenching as returning home to explain to the children why you are without a job and what that means to them.”
In 1967, former Roosevelt adviser Samuel I. Rosenman proposed a five-judge U.S. Court of Labor-Management Relations whose sole function would be arbitrating with finality labor disputes threatening to impede interstate commerce.
In 1971, President Richard M. Nixon proposed allowing a “partial” work stoppage—requiring sufficient workers to remain on the job to ensure no interruption in “critical” interstate commerce. Nixon also proposed compulsory binding arbitration—neutral arbitrators choosing, without modification, the last, best and final offer of one of the parties to
the dispute.
Do What?
There are strong arguments for legislation barring strikes that impede the flow of interstate commerce. Just how far lawmakers should go in this direction requires a prominent “handle with
care” warning.
On the one hand, labor-friendly Democrats and corporate-friendly Republicans jointly and repeatedly have made clear in Congress that widespread railroad work stoppages are not to be tolerated—at least not for very long.
On the other hand, the Clayton Antitrust Act guarantees unions immunity to act as monopolists in restricting the supply of labor to create a wage floor higher than what would exist in an unfettered free marketplace. Such immunity, ruled the Supreme Court, is “essential to give laborers an opportunity to deal in equality with
their employer.”
So where is the balance? Absent a right to strike, labor’s statutory right to represent workers and bargain collectively might be but a paper tiger. Observed the late former union chief Charlie Luna (Brotherhood of Railroad Trainmen and United Transportation Union):
“What does collective bargaining amount to without the right to strike? Nothing. If the union serves a Section 6 notice, regardless of how just it is, we can’t implement it unless it is by agreement with the railroad. And the only way that we stand a chance to get an agreement with the railroads is to know that we stand a chance to use our economic strength. If we don’t, the railroads will never sit down and work anything out with us.”
Wrote Professor Cox, “In dealing with national emergency disputes, we confront a critical dilemma. The community desires both the elimination of strikes and the preservation of free collective bargaining. Unhappily, there is no way in which to realize both wishes. Strikes and collective bargaining are inseparable.”
Wilner’s books, “Understanding the Railway Labor Act,” and “Railroads & Economic Regulation,” are available from Simmons-Boardman Books at https:// www.railwayeducationalbureau.com/, 800-228-9670.
