Strikes and the Railway Labor Act

Will Snell Interview Part 2

Question: Most railroaders have come to believe over the years of protracted contract negotiations that the Railway Labor Act (RLA) prohibits strikes unless all of the tortuous requirements of Section 6 of the Act have been fulfilled and that there is no way to legally strike because the dispute always ends up with the appointment of a Presidential Emergency Board which, more or less, imposes a contract settlement upon the rail unions and the carriers.

Does that mean, no matter what the carriers do to the employees covered by a RLA collective bargaining agreement, that we cannot legally exercise self help under the Railway Labor Act?

Answer: That is a very unique question since, as you note, most talk of strikes, i.e. self help, is mostly connected to Section 6 of the RLA. That was my perception as a railroad local chairman until I later became embroiled in various disputes over the years as a general chairman. It should be noted that I am not an attorney and I profess neither legal expertise nor formal legal training. Therefore the observations herein are simply life experience while doing my job representing railroad workers over the years.

On the other hand, I was privileged to be present many times over the years when various Railway Labor Act attorneys represented the IAM in several disputes with railroad corporations. The attorneys who contributed to my layman’s education included Jim Highsaw and Bill Mahoney of Highsaw & Mahoney who comprised the premier railroad labor firm for many years in Washington, D.C. I later worked with John Clarke who was one of the most clever and astute Railway Labor Act attorneys that I was privileged to work with while representing railroad employees. Accordingly, anyone reading this response should not consider it legal advice. To the contrary, it should be simply taken as the recollections of someone who lived it at the time.

Returning to the question, there is another Section of the RLA that gives rail labor some leverage that is seldom mentioned. It is Section II, Seventh:

 

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

Section 6 of the RLA provides as follows:

 

Ҥ 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, 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.”

At first glance the two sections quoted above may appear to be two unrelated sections of the Railway Labor Act. Nevertheless, they are intertwined in the general purpose of the act as intended by Congress when enacted in 1926. The relationship of Section 2 to Section 6 is noted below:

“As section 6 expressly provides, once a section 6 notice has been served,

neither side can change the status quo. In Detroit & T.S.L. R.R. v. UTU, 396 U.S. 142, 153 (1969), the Supreme Court defined the status quo as “those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose . . . .” Neither side can change current practice under the prior

agreement, whether or not the practice is reflected in the terms of the written agreement, until all of the bargaining procedures of the Act have been exhausted. The expiration date of the agreement, if any, makes no difference; the parties remain locked in the status quo. If the carrier has violated the status quo by walking away from its collective bargaining

agreement, however, it is possible that it could not obtain a strike injunction. See Order of Railroad Telegraphers v. Chicago & N.W. Ry., 362 U.S. 330 (1960).” (From “An introduction to the Railway Labor Act” by Paul, Hastings, Janofsky & Walker LLP)

Keep in mind the legal definitions cited above while I relate an actual experience that deals foursquare with the issue of a “legal” vis-à-vis a “wildcat” strike under the Railway Labor Act.

In 1980 General Chairman Alex Sarcone and I were pursuing a Section 6 Notice served upon the Chessie System railroads seeking employee protection. After a tentative Employee Protection Agreement (EPA) was reached which provided “sub-pay” type steelworkers’ compensation (in addition to RRB unemployment payments) without any hourly contribution from the employees, a Chessie System Shop Superintendent in Huntington, WV decided to send out carrier officers to roust employees, who called of sick, out of their sick beds to prove they were not playing golf, at a local bar or otherwise lying about their need to be absent from work. The tentative EPA agreement also provided a clarification of the attendance rules so each employee of the craft would be made aware of exactly what was required when an absence from work was unavoidable.

Keep in mind there had been no change in the attendance rules for over fifty years at the time. It also should be noted that the clarification of attendance rules was simply the inclusion of the basic requirements embodied in many precedent arbitration awards rendered over the years by the National Railroad Adjustment Board and many Public Law Boards established pursuant to the RLA.

Nevertheless, a “spontaneous reaction” erupted which began at the Huntington Shop and soon spread to nearby shops in WV and KY. Later that day when the Chessie System attorney arrived at the federal courthouse in Huntington and asked to see his favorite judge, he was told the judge was in chambers with the union attorney and the railroad’s lawyer would have to wait until he was free.

What the union attorney was telling the judge was that the railroad was in violation of RLA Section 2, Seventh and there was no way the railroad was entitled to a Temporary Restraining Order (TRO) to put the striking machinists back to work. Of course, this was an educational process because there are very few federal judges in the United States who are familiar with the Railway Labor Act.

The immediate result was the railroad was eager to find me but neither my secretary nor my wife knew exactly where I was, Alex was nowhere to be found, and the “self help” lasted for a few days. The end result was that a strike settlement agreement was reached which prohibited such a flagrant violation of the collective bargaining agreement in regard to attendance rules, no punitive actions (disciplinary hearings) were permitted and no employee who participated in the strike was disciplined. Eventually the agreement was ratified and one or more of the railroad officials, who perhaps wanted to undermine the agreement, had to live with paying the machinists they furloughed 70% of their regular wages plus fringe benefits while they waited to be recalled to work.

So the answer to your question is that contract covered railroad employees can exercise self help outside the confines of Section 6 of the RLA. But the battles must be carefully chosen lest the war be lost. A wildcat strike can be perilous. On the other hand, if the employer clearly crosses the line of RLA Section 2, Seventh, pull the pin and have the union lawyer at the courthouse before the railroad attorney gets out of bed.

I was involved in only a handful of Section 2, Seventh, work stoppages in some twenty years as a railroad union rep. We were successful each time. However, the message was clear to the suits in the ivory tower. We were not afraid to take them on when they crossed the line.

Question: Were you ever involved in a Section 2, Seventh outsourcing situation where the railroad intended to bring third party vendor employees onto to the property to perform work traditionally reserved to railroad employees via the collective bargaining agreement?

Answer: Yes. Perhaps the most significant of those few occasions was in the 1980’s when the major carriers hatched a plan with EMD called “power-by-the-hour”. The intent was for the carriers to lease EMD locomotives with an arrangement where the maintenance and repair of the locomotives would be performed by EMD (Oakway) employees.

This was one of a very few occasions when I had the opportunity sit in on national negotiations with the National Carriers’ Conference Committee (NCCC). As I recall, the IAM and the IBEW were in an ad hoc coalition at the time to confront this threat to the livelihood of every machinist and electrician in the railroad industry. The proposed arrangement by the NCCC was such a flagrant violation of Section 2, Seventh of the RLA the prospect of a nationwide strike was imminent. Shortly thereafter, GE got into the mix with a similar plan of its own. As often happens, eventually a compromise was struck many months after the initial confrontation between the shop craft unions and the NCCC. The end result was noted by Gus Welty in a Railway Age article as quoted in part below:

“Railway Age, Oct, 1989 by Gus Welty

--Of course, there is power-by-the-hour, a concept pioneered by BN and one which has worked well, even though BN and its shopcraft unions had to meet at the courthouse before all the labor aspects to power-by-the-hour were settled. There are 200 units operating under power-by-the-hour on BN, 100 SD60s bearing the EMD and Oakway names and 100 General Electric Dash 8 units bearing the LMX logo. All these units are maintained with supervision provided by the builders and with BN shopcraft employees, the SD60s at Electro Northern shop at North Kansas City and the GE units at Lincoln, Neb.”

The end result was vendor advisors (not supervisors) in the shops counseling the railroad union mechanics as to the technical requirements for the repair of the vendor manufactured locomotives. This compromise was a major victory for the railroad shopcraft unions. When one considers that the shop supervision contingent in most shops at the time consisted of veteran line supervisors with no training in diesel electric power controlled by a series of computers and no mechanics employed with such training (because the railroads ignored training for years after the introduction of the new technology) it was only inevitable the compromise would be reached after the shop craft unions successfully flexed their muscle pursuant to Section 2, Seventh when the issue first arose.

Some railroads now concentrate on training classes to bring their shop forces up-to-date on the new generation of locomotive power. In any event, my continuing observation of the railway industry, with frequent contact with employees of all crafts, leads me to believe the arrangement is working well with no significant harm or threat to the jobs of the shopcraft employees. In fact, most railroads are presently hiring mechanics of all crafts to maintain their locomotive fleet.

Question: Were you ever involved in a strike resulting from outsourcing work of the craft?

Answer: Yes. While there was more than one incident where the question arose over the years, the only one that could not be resolved short of a strike, as I recall, was the SIRTOA strike in late1975 or early 1976. As a result of a particular incident, it is one I will always remember with a smile. Nevertheless, I remember the time frame as being when we were in the final negotiating throes of the birth of Conrail on April 1, 1976. That “labor” lasted for over a year and will be covered in detail in the book. But I digress.

The Staten Island Rapid Transit Operating Authority (SIRTOA) was originally a B&O passenger service operated by the B&O Railroad on Staten Island as Staten Island Rapid Transit (SIRT). The B&O sold the passenger operating rights to the New York Metropolitan Transit Authority (MTA) which operated SIRTOA as a subsidiary. Basically, SIRTOA transported commuters from Staten Island to and from the Staten Island Ferry which crossed the bay between lower Manhattan and St. George. The implementing agreement consummating the sale provided the representation rights of the railroad unions would be preserved following the sale. Thus the IAM continued to represent the eleven (11) machinists who maintained the equipment used in the passenger service.

The implementing agreement also preserved the classification of work rules. At some point prior to the strike our members learned the MTA intended to bring subcontractors onto the property to remove components for overhaul at an “off property” location. It was pointed out to the carrier representatives that the removal and installation of those components were clearly reserved to the employees we represented by the classification of work rules. The carrier refused to negotiate a compromise that would resolve the issue. As a New Yorker, even though upstate in the Albany area, you must be familiar with the heavy handed attitude of the MTA in the “City” (as the natives call Manhattan).

While in Washington, DC embroiled in the “acquisition negotiations” - which would determine whether the vultures, i.e. Chessie System, N&W, Southern, IC, et al would divide the Penn Central “spoils” or Conrail would be born if no agreement with rail labor could be reached - I was told late in the evening that I should accompany the servicing general chairman to Staten Island to coordinate a Section 2, Seventh strike beginning at 5:30 a.m. the next morning. Apparently the MTA thought our position on the matter was just blather and saber rattling like the MTA practiced day in and day out.

In any event, we arranged to meet the local officers at 4:30 a.m. which meant we had to hustle up I-95 and over I-278 to get there on time since the last Metroliner had already left Union Station in Washington. We arrived at the all night diner on Staten Island right on time and we were pleasantly surprised to learn the local officers had a good plan in place in regard to pickets, 4 hour shifts, points to be covered, etc. After covering a few PR points we went down to St. George to meet with the pickets before they assumed their assigned posts.

While advising the pickets how to respond when approached by the local police, state troopers, federal marshals, news media and etc. a member stepped forward and demanded to know where I was born. I advised that I was born in Huntington, WV but grew up on the Ohio side of the river in southern Ohio. I will not relate his obscenity laced rant but it concluded with, “I have paid dues to the IAM for over thirty years. I have never asked for help in all those thirty years. And the one time I ask the Grand Lodge for help, what do they send me? A goddam hillbilly!”

Since he was having obvious trouble remaining upright due to apparent alcohol consumption, I immediately arranged for him to be transported home. It was probably the only time I chuckled during the strike. I still recall the incident with a chuckle from time to time. Perhaps, if I had been born and raised on Staten Island, I would have felt the same way. Nevertheless, all eleven (11) members were dedicated railroad union members and I enjoyed working with them. Why so much trouble and expense for eleven members? They paid their dues. Is there another requirement to go to bat for them?

The end result was that I ended up in Federal Court in Brooklyn, NY. The judge ordered the strikers to return to work. He also ordered expedited arbitration of the dispute. That is exactly what we wanted and there was no discipline imposed by order of the court. The MTA continued with the subcontracting (outsourcing) and after the arbitrator ruled, the MTA wrote a settlement check to each of the striking machinists for over $5,000.00 each. Your tax dollars, of course, but a lesson for the learning.

Again, when relying upon Section 2, Seventh - get your ducks in a row, get competent RLA legal advice, and choose your battles carefully.

© 2008 Railroad Workers United

 

Part 1 of Snell Inteview: A Look Back at Some Late Twentieth Century

Rail Labor History