The Railway Labor Act: Dispute Resolution Procedures and Congressional Authority to Intervene

CRS Report for Congress
Received through the CRS Web
The Railway Labor Act: Dispute Resolution
Procedures and Congressional Authority to
Angie A. Welborn
Legislative Attorney
American Law Division
Labor disputes in the railway and airline industries are covered by the Railway1
Labor Act. The Act sets forth procedures for negotiation, mediation, and arbitration.
If the dispute is not settled through these procedures and the National Mediation Board
determines that the dispute “threatens 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 of the threat, at which point the President
may appoint an Emergency Board to investigate the dispute and report back to him.2 The
Emergency Board’s recommendations are not binding on the parties, and either party
may reject them triggering a final 30-day cooling-off period prior to a strike.3 However,
Congress may enact legislation requiring the parties to submit the dispute to another
emergency board; to submit to final and binding arbitration; or to accept the emergency4
board’s recommendations. This report provides an overview of the dispute resolution
procedures under the Railway Labor Act, including the President’s authority to appoint
an Emergency Board; and discusses Congress’ authority to intervene in railway and
airline strikes.
Dispute Resolution Procedures Under the Railway Labor Act
The Railway Labor Act was enacted in an effort “to avoid any interruption to
commerce or to the operation of any carrier engaged therein.”5 The Act sets forth

1 45 U.S.C. 151 et seq.
2 45 U.S.C. 160.
3 The Railway Labor Act 224 (Douglas L. Leslie et. al. eds., 1995).
4 Id.
5 45 U.S.C. 151a.
Congressional Research Service ˜ The Library of Congress

mandatory procedures for the resolution of major disputes consisting of conference,
mediation, nonmandatory arbitration, and intervention by Presidential Emergency Boards.6
Under the Railway Labor Act, the formal bargaining process begins when one party
serves upon the other a written notice of proposed changes in agreements affecting rates
of pay, rules, or working conditions.7 Such notice must be given 30 days in advance of the
effective date of the proposed change, and within ten days of the receipt of notice, the
parties must agree to a time and place for the initial conference between the
representatives of the interested parties.8 The first conference must take place within 30
days of the notice, unless the parties agree otherwise.9 Throughout the dispute resolution
process, the parties are required to maintain the status quo.10
During the course of the negotiation, either party may request the services of the
National Mediation Board (NMB), or the Board “may proffer its services in case any labor
emergency is found by it to exist at any time.”11 The Board “shall use its best efforts, by12
mediation, to bring them [the parties] to agreement.” Mediation has been described as
“a catalytic process through which the disputants, with the aid of an impartial mediator,
seek ways to break their bargaining impasse by identifying and isolating a common ground
for agreement and settlement.”13 The NMB has great flexibility in structuring the
mediation process, which has been interpreted as giving the Board the authority to do
anything “that can fairly be said to be designed to settle a dispute without a strike and does
not independently offend other laws.”14
If the NMB is not successful in bringing about an amicable settlement through
mediation, the Board is obligated to “induce the parties to submit their controversy to
arbitration.”15 However, the parties are not required to enter into arbitration.16 If either
party declines, the Board must notify both parties that its efforts at mediation have failed
and for 30 days following such notice “no change shall be made in the rates of pay, rules,
or working conditions or established practices in effect prior to the time the dispute
arose.”17 If the parties accept the proffer of arbitration, the agreement to arbitrate must

6 The Railway Labor Act 8. Major disputes are disputes over the formation or modification of
collective bargaining agreements. Id at 2.
7 45 U.S.C. 156.
8 Id.
9 Id.
10 Id. See also 45 U.S.C. 155 First; 45 U.S.C. 160.
11 45 U.S.C. 155 First.
12 Id.
13 The Railway Labor Act 215.
14 Id., quoting Machinists v. National Mediation Board, 930 F.2d 45, 48 (U.S. App. DC 1991).
15 45 U.S.C. 155 First.
16 45 U.S.C. 157 First.
17 45 U.S.C. 155 First.

be in writing and must meet the requirements imposed by the Act.18 Once an agreement
is entered into, it may not be revoked by either party, unless both parties agree to revoke
and cancel the agreement to arbitrate.19
Finally, if efforts to resolve the dispute through mediation and arbitration fail, and the
NMB determines that the dispute “threatens to substantially interrupt 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 turn may appoint an Emergency Board to
investigate and report on the dispute.20 The Railway Labor Act is silent as to how the
National Mediation Board is to determine what constitutes a substantial threat to
commerce, though in the past the NMB has considered “the effect of a strike or shutdown
on the state of the economy as a whole; the immediate economic impact on transportation
industries, shippers, and travelers; or the effects on military logistics and transportation
requirements.”21 The determination whether any given dispute threatens to deprive any
section of the country of essential transportation service is also open to interpretation, and22
Presidential Emergency Boards have been created under a variety of circumstances.
Congress amended the Railway Labor Act in 1981 to add special provisions for the
resolution of labor disputes between a publicly funded and publicly operated carrier23
providing commuter service and its employees. Included in these provisions are an
extended mediation and negotiation timetable, as well as Presidential authority to appoint
a second Emergency Board if no settlement is reached within 120 days of the creation of
the first Emergency Board.24
Presidential Emergency Boards
Upon notification from the National Mediation Board that the dispute “threatens to
substantially interrupt commerce to a degree such as to deprive any section of the country
of essential transportation service,” the President has the discretion to appoint an
Emergency Board to investigate and report on the dispute.25 The decision whether to
create an Emergency Board rests entirely with the President, and the Railway Labor Act
is silent as to what measures may be taken should the President refuse to appoint an

18 45 U.S.C. 158.
19 Id.
20 45 U.S.C. 160.
21 The Railway Labor Act 221.
22 The Railway Labor Act 220. For a survey of Presidential Emergency Boards created between
1980 and 1998 see CRS Report 97-1056, Rail and Air Carrier Labor Relations: Presidential and
Congressional Intervention 1980 Through 1989, by Stephen J. Thompson, and CRS Report 97-
1018, Rail and Air Carrier Labor Relations: Presidential and Congressional Intervention Since

1990, by Stephen J. Thompson.

23 Northeast Rail Service Act of 1981, Pub. L. 97-35 (Aug. 13, 1981), codified at 45 U.S.C. 159a.
24 45 U.S.C. 159a(c)(1); 45 U.S.C. 159a(e).
25 Id.

Emergency Board.26 If the President chooses to exercise his discretion to appoint an
Emergency Board, the Board may be composed of any number of persons the President
desires, provided that no member of the board has a pecuniary or other interest in any27
organization of employees or any carrier.
The Presidential Emergency Board investigates the facts of the dispute and reports
to the President within 30 days from the date of its creation.28 The Railway Labor Act does
not specify what must be done during the investigation, though the investigation “generally
consists of hearings in which the affected parties testify under oath, along with briefs and
submissions.”29 The Emergency Board’s report usually contains recommendations for
settlement of the dispute, but the Board’s recommendations are not binding on the30
parties. During the initial 30 day period and for 30 days after the report has been issued,
“no change, except by agreement, shall be made by the parties to the controversy in the
conditions out of which the dispute arose.”31 During the final 30-day cooling-off period,
the National Mediation Board continues to mediate the dispute. If no agreement is
reached by the end of the 30-day period, the parties may resort to self-help.
Congressional Intervention in Railway and Airline Labor Disputes
Congress’ authority to intervene in labor disputes that threaten to interrupt interstate
commerce was confirmed prior to the enactment of the Railway Labor Act. The Supreme
Court in Wilson v. New, et. al., Receivers of the Missouri, Oklahoma & Gulf Railway
Company, decided in 1917, held that labor disputes in the railway industry are within “the
legislative power of Congress to regulate commerce.”32 In Wilson, railway employers
challenged an act of Congress establishing an eight-hour work day for employees of
carriers engaged in interstate and foreign commerce and prohibiting a decrease in pay for33
those employees. The Court found that “if acts which, if done, would interrupt, if not
destroy, interstate commerce may be by anticipation legislatively prevented, by the same
token the power to regulate may be exercised to guard against the cessation of interstate
commerce threatened by a failure of employers and employees to agree as to the standard
of wages, such standard being an essential prerequisite to the uninterrupted flow of
interstate commerce.”34
In Wilson, the Court also addressed the question of whether Congress’ authority to
intervene was limited by the private rights of the carriers or their employees. Considering
that the carriers and their employees were engaged in interstate commerce, the Court held

26 The Railway Labor Act 221.
27 45 U.S.C. 160.
28 Id.
29 The Railway Labor Act 223.
30 Id at 224.
31 45 U.S.C. 160.
32 243 U.S. 332, 345 (1917).
33 Act of September 3, 5, 1916, 39 Stat. 721, c. 436.
34 243 U.S. at 348.

that “the obligations arising from the public interest and of the work in which they are
engaged and the degree of regulation which may be lawfully exerted by Congress as to that
business, it must follow that the exercise of the lawful governmental right is controlling.”35
The Court also rejected the carriers’ claim that the congressional intervention violated both
the Equal Protection and Due Process clauses of the Constitution.36
On several occasions, Congress has intervened in labor disputes by enacting
legislation to delay or prohibit railway and airline strikes. For example, on August 21,
1986, Congress enacted Public Law 99-385, entitled a “Joint Resolution to provide for a
temporary prohibition of strikes or lockouts with respect to the Maine Central Railroad
Company and Portland Terminal Company labor-management dispute.”37 This legislation
extended the final 30 day cooling-off period imposed under the Railway Labor Act by an
additional 60 days to allow more time for the parties to negotiate.38 In 1992, Congress
enacted Public Law 102-306, entitled a “Joint Resolution to provide for a settlement of
the railroad labor-management dispute between certain railroads and certain of their
employees,” which required Amtrak and Conrail to enter into arbitration with their
employees in an effort to resolve various labor disputes.39 Additionally, Congress has
enacted legislation requiring the parties to submit the dispute to another emergency
board,40 or to accept the Emergency Board’s recommendations.41 Judicial challenges to
this legislation have been unsuccessful, with courts generally affirming Congress’ authority
to enact such legislation as an exercise of its commerce power.42

35 Id at 353.
36 Id at 354.
37 See also Pub. L. 100-380 (Aug. 4, 1988).
38 Pub. L. 99-385, Sec. 1.
39 Pub. L. 102-306 (June 26, 1992). See also Pub. L. 100-429 (Sept. 9, 1988).
40 See e.g. Pub. L. 91-541 (December 10, 1970); Pub. L. 102-29 (April 18, 1991).
41 See e.g. Pub. L. 97-262 (Sept. 22, 1982); Pub. L. 99-431 (Sept. 30, 1986).
42 See e.g. Maine Central Railroad Company v. Brotherhood of Maintenance Way Employees, 835
F.2d 386 (1st Cir. 1987); Delaware and Hudson Railway Company v. United Transportation Union,

450 F.2d 603 (DC Cir. 1971).