Key Differences and Similarities Between the Railway Labor Act and Its Younger Cousin, the National Labor Relations Act

Transcription

1 Key Differences and Similarities Between the Railway Labor Act and Its Younger Cousin, the National Labor Relations Act Douglas W. Hall Partner, Jones Day (202)

2 Courts often analogize the Railway Labor Act ( RLA ) to its better-known cousin, the National Labor Relations Act ( NLRA ). After all, the Supreme Court stated that federal common labor law developed under the NLRA may be helpful in deciding cases under the RLA. 1 However, the Court also warned that [e]ven rough analogies must be drawn circumspectly and that a practitioner must have due regard for the many differences between the two statutory schemes. 2 This paper examines the differences between the RLA and NLRA s history, administration, representation, collective bargaining, protected activity, strike restrictions, and evolving jurisdictional standards. History of the RLA and NLRA The nature and history of the RLA, and the rail and airline industries to which it applies, gave rise to significant differences between the RLA and the NLRA. The RLA was enacted first. Beginning in 1888, Congress incrementally crafted a regulatory framework uniquely suited, first, to the rail industry and, later, to the airline industry. The RLA was passed in 1926 to promote stability in labor-management relations by providing a comprehensive framework for resolving labor disputes. 3 It was amended in 1934 to strengthen employees rights of self-organization and again in 1936 to include the airline industry within its coverage. Significantly, in 1935, Congress, rather than including additional industries under the RLA, adopted the NLRA as a separate statute for those industries. The NLRA aimed to address different problems than the RLA. As one court described, [t]he special situation in the railroad industry, where strong unions and management had become used to dealing with each other, differed vitally from the host of problems at which the [NLRA] was aimed businesses of every size and description, 1 Trans World Airlines v. IFFA, 489 U.S. 426, 432 (1989). 2 Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383 (1969). 3 Hawaiian Airlines v. Norris, 512 U.S. 246, 252, 146 LRRM 2577 (1994). 1

3 many with a history of strong anti-union bias and with ample opportunity for strong-arm tactics. 4 Administrative Agencies Major distinctions between the RLA and NLRA are reflected in the different functions of the agencies administering the statutes. Although the members of the RLA s three-member National Mediation Board ( NMB ) and the NLRA s five-member National Labor Relations Board ( NLRB ) are each appointed by the President and subject to confirmation by the Senate, and although they share a narrow range of common functions, they play very different roles. First, the NMB plays a major role in resolving collective bargaining disputes. The NMB mediates such disputes upon request of one or both parties, and, where warranted by a labor emergency, on its own initiative. 5 Second, the NMB has broad discretion to continue or terminate mediation, and thus to decide whether the parties may exercise self-help, such as a strike, in support of their demands, even long after a collective bargaining agreement has become open for renegotiation. Third, the NMB has no power to grant monetary or equitable relief in response to allegations that a party s rights under the RLA have been violated. Instead, such relief must be sought in court. The NLRB differs in all three respects. The NLRB has no authority to mediate the negotiation of collective bargaining agreements and in general does not determine the timing of lawful self-help. Unlike the NMB, the NLRB adjudicates alleged violations of the NLRA ( unfair labor practices or ULPs ) in adversary proceedings that are prosecuted by the NLRB s General Counsel before administrative law judges and the NLRB itself. Finally, the NLRB may order a wide variety of make-whole relief and remedial orders in response to such violations. 4 Ruby v. American Airlines, 323 F.2d 248, 256, 54 LRRM 2202 (2d Cir. 1963). 5 RLA 10. 2

4 Restrictions on Strikes and Other Self Help Self-help refers to the economic measures available to labor (e.g., strikes) and management (e.g., unilateral implementation of a bargaining position), typically in a dispute over the negotiation of a new agreement. The RLA sets forth rules and procedures that affect the timing of the parties right to engage in self-help, in order to give effect to one of the Act s central purposes: preventing interruptions to commercial rail and air transportation through reliance on collective bargaining and mediation. The RLA generally requires parties that have not reached agreement to refrain from self-help until the completion of the Act s mandatory bargaining and mediation processes, which can take months or even years after the amendable date of a contract. Such processes can be, as described by the Supreme Court, almost interminable. 6 The courts describe the bar on self-help as a duty to maintain the status quo. 7 At the same time, the RLA recognizes that the potential for self-help can significantly affect the course of collective bargaining. Given these restrictions and the potential effects of self-help, the NMB s discretion to continue mediation or to terminate its mediation services and thus release the parties to engage in self-help is critical to the administration of the Act. However, under the NLRA, a union is not prohibited from striking during the term of a collective bargaining agreement, unless the agreement provides otherwise, explicitly or implicitly, and no government agency controls the timing of self-help upon expiration of the agreement. Therefore, under the NLRA (as under the RLA), the threat or use of self-help may 6 Detroit & T. Shore Line R.R. v. United Transp. Union, 396 U.S. 142, 149, 72 LRRM 2838 (1969) (a crucial aspect of the RLA s collective bargaining machinery is to make the exhaustion of the Act s remedies an almost interminable process ). 7 Shore Line, 396 U.S. at , 72 LRRM at 2842 (the status quo obligation requires the maintenance of the rates of pay, rules, and working conditions that are in effect prior to the time the pending dispute arose and which are involved in or related to that dispute ). 3

5 encourage the parties to reach agreement; under the NLRA, however, the government plays no role in bringing about an agreement through delay or threat of delay in permitting self-help. Scope of Unit for Representation Representation disputes are another significant source of differences between the RLA and NLRA. Under both statutes, employees are organized in units for representation and bargaining. These employees, and those hired after them in the same units, are bound by the agreements reached on behalf of the unit. Beyond these common points, however, the statutory schemes diverge. The RLA unit for representation is a craft or class. 8 The NMB, which determines the composition of crafts or classes, typically places all employees who perform the same general job functions or groups of job functions into a single systemwide (i.e., nationwide) craft or class, regardless of the location of their workplace in the United States. Moreover, the NMB often adheres to the same or similar definitions of particular crafts or classes at different carriers, consisting of similar job classifications subject to variations. The RLA, with its emphasis on systemwide crafts or classes, reduces the likelihood that minority groups of employees will be represented by different unions with fragmented interests. If a class chooses to decertify the unit, there is neither a stated process for decertifying the unit nor a provision for an employer to initiate a representation proceeding in the RLA. Hence, under NMB procedures, change or removal of a representative may be accomplished only through a standard representation proceeding. On the other hand, the NLRA bargaining unit is any unit appropriate for such purposes. 9 In its 2011 Specialty Healthcare decision, the NLRB approved union organizing of 8 RLA 2, Ninth U.S.C. 159(a). 4

6 so-called micro-units. 10 Thus, the NLRB can group employees who perform even the same functions into a variety of differing appropriate units on a case-by-case basis at different employers. These units may be either single-site or multi-site, and their composition may vary from location to location, even within the same company. Furthermore, the NLRA not only allows separate units in different locations of the same employer, but also permits these separate bargaining units to be represented by different unions. As a result, employees in the same classification but in different facilities might be represented by different unions. For example, in 2012 the NLRB certified the representation a micro-unit that included only the 41 cosmetic and fragrances employees in one specific Macy s department store because they were in the same community of interest. 11 Unlike the RLA, if an NLRA unit chooses to decertify, there is a formal process to do so. The NLRB has enacted regulations based on the Board s administrative experience specifying that a representation or decertification petition must, in the absence of special factors, be supported by authorization cards or petitions signed by at least 30 percent of the employees in the affected bargaining unit before an election will be scheduled. 12 Collective Bargaining Agreements Although the RLA leaves the terms of collective bargaining agreements in the hands of the parties, it also sets forth several obligations to be followed in the negotiation of agreements. Foremost among these is the duty specified in Section 2, First, of the RLA to exert every reasonable effort to make and maintain agreements... in order to avoid an interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and 10 In Re Specialty Healthcare & Rehab. Ctr. of Mobile, 357 NLRB 934, 947 (2011). 11 Macy s, Inc. & Local 1445 of the United Food & Commercial Workers in Int'l Union, 361 NLRB No. 163 (Jan. 7, 2015) C.F.R (a). 5

7 the employees thereof. 13 The Supreme Court has described this duty as the heart of the Railway Labor Act. 14 Collective bargaining agreements under the RLA typically do not terminate on specified dates; instead, they usually set forth a date on which they become amendable if a party serves a timely notice of intent to change the agreement. 15 Even following an amendable date, the RLA generally continues the terms of agreements in force during a status quo period that commences with service of a notice of intended change and that continues until the parties either reach a new agreement or become free to engage in self-help. There is also a duty to bargain in good faith under the NLRA, but the extent to which this duty and the RLA s obligation are comparable remains a continuing issue. Agreements typically expire on a specified date, although even after such expiration the NLRA duty to bargain in good faith generally requires parties that are engaged in collective bargaining to refrain from unilaterally changing terms and conditions of employment until they reach an impasse in bargaining. Protected Activity Under the RLA and NLRA In general, the NLRA grants broader protections to employees than the RLA. A rail or air employee covered by the RLA is protected only if the employee was attempting to join, organize, or assist in organizing [a] labor organization, or to exercise his right to organize and bargain collectively. 16 The Supreme Court stated that RLA protected activity primarily addresses the precertification rights and freedoms of unorganized employees. 17 There is no 13 RLA 2, First. 14 Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, , 70 LRRM 2961 (1969). 15 RLA U.S.C. 152, Fourth. 17 Trans World Airlines, Inc. v. Indep. Fed n of Flight Attendants, 489 U.S. 426, 440, 109 S. Ct. 1225, 1234 (1989). 6

8 private cause of action under the RLA for a group of employees who assert retaliatory conduct based upon employee activities which bear no relationship to establishing a union Under the NLRA, however, employees have the right to attempt to form a union where none currently exists, to decertify a union that has lost the support of employees, including forming, or attempting to form, a union; and to refuse to do any or all of these things. Unlike the RLA, employees who are not represented by a union also have rights under the NLRA. Specifically, the NLRB protects the rights of employees to engage in concerted activity 19 which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. For example, two or more employees addressing their employer about improving their pay or discussing work-related issues beyond pay, such as safety concerns, with each other would be engaging in concerted activity. The NLRB has also held that restrictive employer rules and policies can be reasonably construed to affect protected concerted activity. Single employees may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer s attention, trying to induce group action, or seeking to prepare for group action. Therefore, an employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions would be protected under the NLRA. Jurisdictional Differences Most employees in the private sector are covered by the NLRA. However, the NLRA specifically excludes certain individuals such as those who are employed by Federal, state, or local government, independent contractors, and employees subject to the RLA. 18 Herring v. Delta Air Lines, Inc., 894 F.2d 1020, 1023 (9th Cir. 1990) U.S.C

9 The RLA applies to air and rail carriers. Rail carriers are defined in the RLA as any express company, sleeping-car company, carrier by railroad... and any company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad... in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage and handling of property transported by railroad Air carriers are defined as those 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. Consequentially, the RLA applies not only to railroads and airlines but also to any company that is directly or indirectly owned or controlled by, or under common control with, a railroad or airline and that performs a service in connection with transportation, otherwise known as derivative carriers. To determine whether a service provider is a derivative carrier subject the RLA jurisdiction, both the NMB and the NLRB have applied a two-part test that asks (1) whether the nature of the work performed by the employees is the type traditionally performed by airline employees (the function test) and (2) whether the company and its employees are directly or indirectly controlled by a carrier (the control test). In determining whether a carrier exerts sufficient control over a company to confer RLA jurisdiction, the agencies analyzed numerous factors, including the following: 1) The extent of the carrier s control over the manner in which the company conducts its business; 2) Access to the company s operations and records; U.S.C

10 3) The carrier s role in personnel decisions; 4) The degree of supervision exercised by the carrier; 5) The carrier s control over training; and 6) Whether the employees are held out to the public as employees of the carrier. Not all of the factors needed to be present for RLA jurisdiction to be found; on the contrary, in most cases, some of the factors were not present. Nor were any of the factors deemed to be dispositive of the issue of jurisdiction. Recent Developments in RLA Jurisprudence Application of the Jurisdictional Test Throughout the 1990s and the 2000s, the NMB and NLRB regularly found airline service providers to be subject to the RLA through application of the two-part jurisdictional test. In addition, it was the NLRB s practice to refer the jurisdictional questions to the NMB in the first instance for an advisory opinion, which the NLRB invariably adopted. Beginning in 2013, however, there was a change in how the agencies handled these cases. Although continuing to state that it was applying the same test, and without overturning its prior precedent, the NMB, in a series of 2-1 decisions, began to focus almost exclusively on the carrier s involvement in the employer s personnel decisions. The NMB disregarded other factors which previously had been cited as supporting RLA jurisdiction, stating that they merely evinced the level of control of a typical contractor-subcontractor relationship, and that more was needed to establish RLA jurisdiction. The NLRB not only adopted these decisions, it began applying the same rationale itself to cases without referring them to the NMB. The NLRB applied this more restrictive interpretation of the jurisdictional test in a case involving ABM Onsite Services West, Inc. ( ABM ), concluding that ABM had not satisfied the control prong of the jurisdictional test because airlines did not actually exercise control over the hiring and firing decisions regarding. In 2017, the Court of Appeals for the District of 9

11 Columbia reversed the NLRB s decision, finding that its application of the more restrictive RLA jurisdictional test as arbitrary and capricious because neither the NLRB nor the NMB in the decisions on which the NLRB relied had ever expressly articulated a rationale for abandoning the prior RLA jurisdictional test in which none of the six jurisdictional factors are dispositive. 21 The court remanded the matter to the NLRB. On remand, the NLRB has referred the case to the NMB to render an advisory opinion on whether ABM is an RLA carrier. ABM has urged the NMB both to reaffirm the two-part jurisdictional test and to hold that in determining whether a service provider is directly or indirectly controlled by an RLA carrier, none of the relevant factors are dispositive. The International Association of Machinists and Aerospace Workers, which has sought to organize ABM s employees in this case, has asked the NMB to adopt a more restrictive analysis which would limit the RLA s coverage regarding service providers to only the subsidiaries of railroads and air carrier. This case is currently pending before the NMB. 21 ABM Onsite Servs.-W., Inc. v. Nat l Labor Relations Bd., 849 F.3d 1137, 1142 (D.C. Cir. 2017). 10