General Lee
Well-known member
- Joined
- Aug 24, 2002
- Posts
- 20,442
American Bar Association
Section of Labor & Employment Law
RAILWAY AND AIRLINE LABOR LAW COMMITTEE
2003 MIDWINTER MEETING
PRESERVING THE RIGHT TO STRIKE AFTER SECTION 1113
REJECTION
A. Overview of the Railway Labor Act and the Right to Strike
Like their economic fates, the rights and obligations of employers and
employees are bound up together. The employees’ right to strike is closely
connected to the employer’s right to engage in self-help. Indeed, the whole
fabric of the RLA is permeated with a principle of mutuality. As the Supreme
Court has noted, “if the carrier is free… [to] resort to self-help, the union
cannot be expected to hold back its own economic weapons.”
B. Section 6, the Status Quo, and Post-Exhaustion Limits
The parties’ respective rights are fairly clear if rejection is deemed to
trigger the Section 6 process of negotiations. Neither the employees nor the
employer would be permitted to engage in self-help until the process was
exhausted. Similarly, if rejection is equated with Section 6 exhaustion, it is
equally clear that the employees would be able to strike in response to the
employer’s unilateral action.75 Thus, if the employer’s right to implement terms
is defined with reference to Section 6, there is little difficulty in determining the
scope of the union’s right to strike.
C. Section 2(First) Jurisprudence and the Right to Strike
The existence of this right is less clear, of course, if the parties’
obligations are defined solely with reference to the independent Section 2(First)
duty. It is clear that some violations of Section 2(First) justify anti-strike
injunctions.76 Moreover, some courts have suggested that, in certain
situations, strikes themselves may constitute violations of Section 2(First).
While employee strikes should – in the absence of the Section 6 status quo
obligation – never violate Section 2(First) per se, at least one court seems to
believe the contrary.
1. Atlantic Coast Airlines: The Worst Case Scenario
The parties to the Atlantic Coast77 controversy (described above) had
engaged in approximately one year of negotiations, during which the union
sought to enjoin the company from unilaterally modifying the terms of
employment. After the Second Circuit denied that injunction on the basis of
Williams, the employees filed a declaratory judgement action to establish their
right to engage in corresponding self-help, e.g., to strike.
Over a vigorous dissent, the Second Circuit held that, absent exhaustion
of the Section 6 procedures or employer bad faith, Section 2(First) prohibited
the right to strike completely.78 The Second Circuit began its opinion by
asserting that “the fact that the status quo provisions may not be applicable in
certain situations… does not negate the obligation of the parties to exert every
reasonable effort to resolve disputes.” It then concluded without citing any
authority, that “a strike is inconsistent with the Union’s duty to negotiate in
good faith… in the absence of a finding of bad faith on the part of the
employer.”
Even if this decision were otherwise defensible, it fails to provide any sort
of end game for the employees’ impotence. Absent bad faith, they would never
be allowed to strike before entering into an initial collective bargaining
agreement. This is simply not how the Railway Labor Act is structured. At
most, the statute is designed to prevent strikes by delaying them – not by
prohibiting them outright.80 The Atlantic Coast decision is wrong to suggest
otherwise.
The Second Circuit’s own statements make it clear that it fundamentally
misunderstood the purpose of Section 2(First), let alone the RLA as a whole.
The court ended its opinion with yet another example of judicial inattention,
stating that:
“Though we are sympathetic to the Union’s argument
that it is in a relatively powerless s position under the
circumstances to effectively oppose or influence the
Airline’s decision to make unilateral changes not
prohibited by the RLA in the absence of a CBA, and in
the absence of bad faith by the Airline, the concept of
fairness alone will not permit the Union to do what it
is statutorily prohibited from doing.”
Thus, the court suggests that the unfortunate consequence of its
decisions is the union’s lack of power to prevent unilateral changes. The real
problem, however, is that the court’s formulation of Section 2(First) –
permitting unilateral changes and prohibiting the union from doing anything
about it – would work to prevent any collective bargaining agreement at all. Yet
the promotion of such agreements is the whole point of Section 2(First), which
expressly provides a duty to “make and maintain agreements.”
Under Atlantic Coast, the employer would be free to implement whatever
terms of employment it likes, and the only duty it would have under the RLA
would be to “treat with” its employees, and to refrain from discriminating
against organizing activity. In light of the unmistakable burdens of the RLA
after an agreement is reached, Atlantic Coast provides employers with
staggering economic incentives to avoid a contract for as long as possible.
Absent the right to strike, the employees would be powerless to compel a
contrary result.
To justify this decision, the Second Circuit played a neat trick with the
language of Section 2(First). That provision reads:
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 the operation of any
carrier growing out of any dispute between the carrier
and the employees thereof.82
The Second Circuit re-wrote the statute to state the Section 2(First)
obligation as a duty: To make “every reasonable effort” to reach agreement
and to avoid interruption to “the operation of the
carrier.”
Thus, the Second Circuit took a duty to “make agreements for the
purpose of avoiding interruptions in commerce” and turned it into a duty to
“avoid interruptions in commerce.” If that were the Section 2(First) duty,
Atlantic Coast makes sense. Employers may unilaterally implement terms of
employment because, regardless of the effect on negotiations, commerce will
never be interrupted. Employees, however, can do nothing, because anything
they do would necessarily disrupt operations.
Under this logic, employees should never be able to strike, even after
Section 6 exhaustion. However, because the Second Circuit was forced to
recognize the existence of the post-exhaustion right to strike, it distinguished
post-exhaustion decisions because they “involved a CBA.” Then, without more,
the court simply concluded that the union had no right to strike.
2. Distinguishing Atlantic Coast
For the reasons described above, it seems unlikely that the Atlantic
Coast approach will be adopted by other courts, and, eventually, it will
probably be overruled even in the Second Circuit. However, because the
Atlantic Coast decision involved only the post-certification initial collective
bargaining relationship, it may be distinguished on that ground. As noted
above, the post-rejection relationship is unique, because the parties (1) have a
history of collective bargaining, (2) have a history of collective bargaining
agreements, and (3) have recently bargained to impasse over the employer’s
new proposals. Furthermore, the post-rejection employer has brought about
this situation unilaterally – by unilaterally rejecting the contract.
Section of Labor & Employment Law
RAILWAY AND AIRLINE LABOR LAW COMMITTEE
2003 MIDWINTER MEETING
PRESERVING THE RIGHT TO STRIKE AFTER SECTION 1113
REJECTION
A. Overview of the Railway Labor Act and the Right to Strike
Like their economic fates, the rights and obligations of employers and
employees are bound up together. The employees’ right to strike is closely
connected to the employer’s right to engage in self-help. Indeed, the whole
fabric of the RLA is permeated with a principle of mutuality. As the Supreme
Court has noted, “if the carrier is free… [to] resort to self-help, the union
cannot be expected to hold back its own economic weapons.”
B. Section 6, the Status Quo, and Post-Exhaustion Limits
The parties’ respective rights are fairly clear if rejection is deemed to
trigger the Section 6 process of negotiations. Neither the employees nor the
employer would be permitted to engage in self-help until the process was
exhausted. Similarly, if rejection is equated with Section 6 exhaustion, it is
equally clear that the employees would be able to strike in response to the
employer’s unilateral action.75 Thus, if the employer’s right to implement terms
is defined with reference to Section 6, there is little difficulty in determining the
scope of the union’s right to strike.
C. Section 2(First) Jurisprudence and the Right to Strike
The existence of this right is less clear, of course, if the parties’
obligations are defined solely with reference to the independent Section 2(First)
duty. It is clear that some violations of Section 2(First) justify anti-strike
injunctions.76 Moreover, some courts have suggested that, in certain
situations, strikes themselves may constitute violations of Section 2(First).
While employee strikes should – in the absence of the Section 6 status quo
obligation – never violate Section 2(First) per se, at least one court seems to
believe the contrary.
1. Atlantic Coast Airlines: The Worst Case Scenario
The parties to the Atlantic Coast77 controversy (described above) had
engaged in approximately one year of negotiations, during which the union
sought to enjoin the company from unilaterally modifying the terms of
employment. After the Second Circuit denied that injunction on the basis of
Williams, the employees filed a declaratory judgement action to establish their
right to engage in corresponding self-help, e.g., to strike.
Over a vigorous dissent, the Second Circuit held that, absent exhaustion
of the Section 6 procedures or employer bad faith, Section 2(First) prohibited
the right to strike completely.78 The Second Circuit began its opinion by
asserting that “the fact that the status quo provisions may not be applicable in
certain situations… does not negate the obligation of the parties to exert every
reasonable effort to resolve disputes.” It then concluded without citing any
authority, that “a strike is inconsistent with the Union’s duty to negotiate in
good faith… in the absence of a finding of bad faith on the part of the
employer.”
Even if this decision were otherwise defensible, it fails to provide any sort
of end game for the employees’ impotence. Absent bad faith, they would never
be allowed to strike before entering into an initial collective bargaining
agreement. This is simply not how the Railway Labor Act is structured. At
most, the statute is designed to prevent strikes by delaying them – not by
prohibiting them outright.80 The Atlantic Coast decision is wrong to suggest
otherwise.
The Second Circuit’s own statements make it clear that it fundamentally
misunderstood the purpose of Section 2(First), let alone the RLA as a whole.
The court ended its opinion with yet another example of judicial inattention,
stating that:
“Though we are sympathetic to the Union’s argument
that it is in a relatively powerless s position under the
circumstances to effectively oppose or influence the
Airline’s decision to make unilateral changes not
prohibited by the RLA in the absence of a CBA, and in
the absence of bad faith by the Airline, the concept of
fairness alone will not permit the Union to do what it
is statutorily prohibited from doing.”
Thus, the court suggests that the unfortunate consequence of its
decisions is the union’s lack of power to prevent unilateral changes. The real
problem, however, is that the court’s formulation of Section 2(First) –
permitting unilateral changes and prohibiting the union from doing anything
about it – would work to prevent any collective bargaining agreement at all. Yet
the promotion of such agreements is the whole point of Section 2(First), which
expressly provides a duty to “make and maintain agreements.”
Under Atlantic Coast, the employer would be free to implement whatever
terms of employment it likes, and the only duty it would have under the RLA
would be to “treat with” its employees, and to refrain from discriminating
against organizing activity. In light of the unmistakable burdens of the RLA
after an agreement is reached, Atlantic Coast provides employers with
staggering economic incentives to avoid a contract for as long as possible.
Absent the right to strike, the employees would be powerless to compel a
contrary result.
To justify this decision, the Second Circuit played a neat trick with the
language of Section 2(First). That provision reads:
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 the operation of any
carrier growing out of any dispute between the carrier
and the employees thereof.82
The Second Circuit re-wrote the statute to state the Section 2(First)
obligation as a duty: To make “every reasonable effort” to reach agreement
and to avoid interruption to “the operation of the
carrier.”
Thus, the Second Circuit took a duty to “make agreements for the
purpose of avoiding interruptions in commerce” and turned it into a duty to
“avoid interruptions in commerce.” If that were the Section 2(First) duty,
Atlantic Coast makes sense. Employers may unilaterally implement terms of
employment because, regardless of the effect on negotiations, commerce will
never be interrupted. Employees, however, can do nothing, because anything
they do would necessarily disrupt operations.
Under this logic, employees should never be able to strike, even after
Section 6 exhaustion. However, because the Second Circuit was forced to
recognize the existence of the post-exhaustion right to strike, it distinguished
post-exhaustion decisions because they “involved a CBA.” Then, without more,
the court simply concluded that the union had no right to strike.
2. Distinguishing Atlantic Coast
For the reasons described above, it seems unlikely that the Atlantic
Coast approach will be adopted by other courts, and, eventually, it will
probably be overruled even in the Second Circuit. However, because the
Atlantic Coast decision involved only the post-certification initial collective
bargaining relationship, it may be distinguished on that ground. As noted
above, the post-rejection relationship is unique, because the parties (1) have a
history of collective bargaining, (2) have a history of collective bargaining
agreements, and (3) have recently bargained to impasse over the employer’s
new proposals. Furthermore, the post-rejection employer has brought about
this situation unilaterally – by unilaterally rejecting the contract.
