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OFFICIAL NEWSLETTER
OF THE NATIONAL ASSOCIATION OF RAILROAD REFEREES
April 2004
NMB PROPOSED RULES CHANGES ILL-ADVISED
by James E. Conway
“God always has another custard pie up His sleeve.”
Lynn Redgrave
GEORGY GIRL, 1966
A gentler judgment would be lovely. But the proposed rule changes announced in the NMB’s Advance Notice of Proposed Rulemaking last summer are an improbable grope. See 68 Fed. Reg. 46983 (Aug. 7, 2003).
The Board lays down as predicate for the uncommon step of Section 3 Rulemaking its sense of “heightened responsibility” for the compensation of railroad referees “given budgetary and staffing constraints.” And it announces its objective as “to facilitate the more timely resolution of grievances…in the railroad industry.” More about the supposed link between those two notions in a minute…
Toward the end of creating efficiencies in its procedures and the administration of the National Railroad Adjustment Board, the NMB solicited comments on the following questions:
● Whether time limits should be imposed on cases designated for handling before a PLB.
● Should there be “adverse consequences” if “the parties do not agree to follow the procedures adopted by the NMB.”
● Whether the parties should enjoy “options” with respect to any new procedures.
● Whether all railroad cases should be decided by arbitrators within 1 year of filing Notice of Intent, and what should happen when 1 year has elapsed and the case has not been placed before a PLB pursuant to 45 U.S.C. 153, Second?
● Whether there should be mandatory consolidation of “similar cases dealing with similar issues” and what should the NMB do if the parties refuse to consolidate cases?
The Public Meeting conducted at the offices of the National Labor Relations Board in Washington, DC on December 19, 2003 to gather comments was brief and lightly attended. President-elect David Vaughn and I were present at Frank Quinn’s request. Bill Miller, Executive Director–Industrial Relations Department, TCIU, read a tactful statement on behalf of his and 11 other rail Unions generally opposing the Board’s initiatives. Mr. Miller traced the historical trend of Section 3 and Section 3 Committee activity (22,173 pending cases, all forums, in 1985; 5136 in 2003); endorsed case consolidation on a voluntary basis; supported faster turn-around on awards; recognized that there cannot exist two different systems for handling rail disputes, one at the NRAB and one at the NMB; urged more substantial funding for Section 3 activities; and took questions from the Board.
Don Buchanan spoke on behalf of the Sheet Metal Workers Union, articulating a more obliging attitude but backing Miller on the need for adequate annual budgets. The meeting was transcribed, and both the record and positions papers received presumably are available upon request at cost through the Board.
The National Railway Labor Conference (“NRLC”) submitted comments on September 8, 2003 strongly opposing any rulemaking on procedures employed by the NRAB in the arbitration of grievances. Succinctly, it cites the provisions of the Administrative Procedures Act and the 1934 amendments to the Railway Labor Act, (“The Adjustment Board shall meet within forty days after June 21, 1934, and adopt such rules as it deems necessary to control proceedings before the respective divisions…”). See 45 U.S.C. § 153 First (v) (emphasis added). Given the clear demarcation of responsibilities under the RLA, the NRLC challenges the Board’s authority under the Act to dictate NRAB rules, which the parties themselves have fashioned over the last 70 years, and suggests the Board’s authority is limited to (i) appointing neutrals when divisions of the Adjustment Board cannot agree, and (ii) control over the NRAB’s spending.
Whether the NMB has the right to impose the procedures contemplated remains to be seen. As we know, the courts have extended it substantial discretion in matters relating to representation, mediatory and funding issues. Establishment of NRAB procedures, however, may well be ultra vires. Obviously, the Board’s unquestioned power over NRAB expenditures poses other, more complicated leverage issues.
What happens next? After analyzing the input it receives, the Board may publish an NPRM in a future issue of the Federal Register, perhaps this fall, announcing its further intentions. Experience suggests by then the current proposals may have morphed into something very different. Or it may refrain from rulemaking altogether, although as one Board Member indicated on December 19, “The train is at the station. Get on board.” Another option is a call for full evidentiary hearings, as the NMB did in 1987 when it rejected decertification and representation rule changes after hearings and 2 years of study. See In re. Petitions of Chamber of Commerce and Teamsters, 14 NMB No. 96 (1987). In that matter, the Board dismissed rulemaking requests, concluding that, “[t]he level of proof required to convince the Board the changes proposed are essential…is quite high, and has not been met…”.
If that principle has continued application, the current impulse to hurry cases to arbitration in the interest of saving money cannot possibly be deemed essential, never mind logical. In our view, that stampede will cost, not save, money. As an initial matter, putting aside discipline and dismissals, as with unreturned phone calls experienced practitioners know that many claims self-resolve if left to acquire the perspective brought by age. Claimants, Organization representatives and Carrier officials leave, are voted out, dismissed, promoted or otherwise attrit; people lose interest; priorities change; intervening bargaining or operational changes moot out issues. And second, perceiving the universe of rail grievances as a finite one that needs conquering is a formulation lightly tied to reality. There is a steady stream of new cases entering the pipeline in hopes that, like pitched pennies, some may turn up golden. So there is nothing intrinsically nutritious about forcing claims to hearing—unless coupled with a corresponding rule that they are otherwise deemed withdrawn—and that requirement directly intrudes on the rights of the parties. In sum, it may make for self-congratulatory NMB annual reports to Congress, but there is no economic imperative in adopting synthetic timetables for rail arbitration simply because they are “government pay” any more than in the broader industrial model, where they are not commonly found.
Beyond the illogic of linking fast with cheap, it seems difficult to understand why this Board seems so broadly hell-bent on making the performance of railroad referees such a casus belli. It is a defocused view to imply that the grim determined inactivity of rail referees is the real problem. If rail neutrals are sitting on awards, individual scofflaws should be dealt with aggressively.
● In response to the Board’s appeals, both rail management and labor have tentatively agreed to consider a 120-day time limit on issuing awards. That, as they say in the Carolinas, is out as Lottie’s left eye. Establishment of any blanket timetable of less than the current 6 months for a referee to issue a decision is unnecessarily broad. An experienced referee may preside over a docket involving a dozen or more cases and be expected to handle numerous such dockets simultaneously. In such cases, drafting large numbers of high quality awards each month in order to meet a 120-day timetable often is not possible. Because this work is accomplished at rates hovering around one-third of normal arbitration—an issue for another day—it may occasionally get displaced. But proponents of a shortened timeframe should be required to say why 6 months is inadequate; failing that, the proposal should yield to more discrete policing of the offending neutrals who consistently take more than 6 months to issue awards.
No sensible person can oppose the wholesome notion of making the minor dispute resolution process under the RLA more efficient. The Section 3 Committee proceedings appear to be accomplishing those ends. Video conferencing; electronic submission of forms may help at the margins, and we can think of numerous other refinements—there are savings to be had in earlier travel approvals; the ban on parties sharing travel costs needs reexamination. But curtailing writing time for all neutrals is a high, inside slider, and the suggestion that the Board should determine which cases should be consolidated is an idea that should be taken into the courtyard and shot.
And there are other matters the Board seems to scant. The central problem, and the one the NMB should be hammering, is getting its habitually derelict budget act together. Shutting down the funding of arbitrations as early as August, as was the case last year, is the true impediment to efficient case handling and should be the predominant priority for the National Mediation Board. No amount of finger wagging at neutrals can mask Board accountability for it. If the NMB would effectively tap the resources of its constituents– Carriers, Organizations, Referees—and not big-foot them, who knows?
In the meantime, it is hard to see much in the submissions of parties or the Board’s expressed objectives to suggest that the rule changes proposed are anything but a thimble for bailing. Essential they are not.
-James E. Conway, March 15, 2004
OPINIONS EXPRESSED BY AUTHORS DO NOT NECESSARILY REFLECT THE POSITION OF NARR ON ANY ISSUE.
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