RLA Section 2, Ninth, Committee of Three Neutrals
The utilization of the Section 2, Ninth, Committee of Three Neutrals was used two times in the history of the Railway Labor Act. The first instance involved a representation dispute regarding pilots and flight engineers in 1959 and 1960 regarding United Airlines and preceded President Kennedy's Commission to Inquire into a Controversy between Certain Air Carriers and Certain of their Employees. See Post-Release Executive Actions. The second instance of its use occurred in 2000 over a dispute that was precipitated in 1998 when the UTU applied to the NMB for the creation of a single craft or class of Train and Engine Service Employees on the Union Pacific Railroad. Details on both instances of use follow.
Flight Deck crew Members - United Airline, ALPA, FEIA - 1959 & 1960
During FY 1959 the Air Line Pilots Association petitioned the Board to investigate a representation dispute among the Flight Deck Crew Members, employees of United Air Lines, Inc. Investigation disclosed that this application was intended to include pilots, co-pilots and flight engineers in a single craft or class where previously pilots and co-pilots had been treated as a separate craft or class as had flight engineers. In view of the nature of this dispute and its far reaching effects on the airline industry, the Board, acting under the provisions of Section 2, Ninth of the Railway Labor Act, referred the dispute to a committee of three neutrals. See Section 2, Ninth, below for pertinent language.
As stated in the NMB's 1960 Annual Report, this was the first time such a committee has been appointed under the Railway Labor Act. The members of the committee consisted of J. Glenn Donaldson, Denver, Colorado, Chairman; George S. Ives, Washington, D.C., Member; and David H. Stowe, Washington, D.C., Member. See NMB 1960 Annual Report at pages 17.
During FY 1959 the Air Line Pilots Association petitioned the Board to investigate a representation dispute among the Flight Deck Crew Members, employees of United Air Lines, Inc. Investigation disclosed that this application was intended to include pilots, co-pilots and flight engineers in a single craft or class where previously pilots and co-pilots had been treated as a separate craft or class as had flight engineers. In view of the nature of this dispute and its far reaching effects on the airline industry, the Board, acting under the provisions of Section 2, Ninth of the Railway Labor Act, referred the dispute to a committee of three neutrals. See Section 2, Ninth, below for pertinent language.
As stated in the NMB's 1960 Annual Report, this was the first time such a committee has been appointed under the Railway Labor Act. The members of the committee consisted of J. Glenn Donaldson, Denver, Colorado, Chairman; George S. Ives, Washington, D.C., Member; and David H. Stowe, Washington, D.C., Member. See NMB 1960 Annual Report at pages 17.
January 17, 1961, the committee of three neutrals appointed by the Board to investigate a representation dispute among flight deck crew members, employees of United Air Lines, Inc., submitted its Findings Upon Investigation (File No. C-2946) to the National Mediation Board wherein it found that the pilots and flight engineers constituted a single craft or class of employees for representation purposes on United Air Lines, Inc. The Board on February 6, 1961, after reviewing the report transmitted the findings to the Flight Engineers' International Association, the Air Line Pilots' Association and United Air Lines,Inc.
Shortly thereafter, on February 17, 1961, flight engineers employed on seven of the Nation's air carriers: Pan American World Airways, American Airlines, Trans World Airlines, Eastern Air Lines, National Airlines, The Flying Tiger Line, and Western Air Lines, commenced a walkout which shut down the operations of these carriers.
February 21, 1961, Secretary of Labor Arthur J. Goldberg, having investigated all the facts and circumstances in the situation, announced that he had recommended to the President that a distinguished and competent public commission should be appointed to review the complex problems involved. In making this announcement the Secretary stated:
Shortly thereafter, on February 17, 1961, flight engineers employed on seven of the Nation's air carriers: Pan American World Airways, American Airlines, Trans World Airlines, Eastern Air Lines, National Airlines, The Flying Tiger Line, and Western Air Lines, commenced a walkout which shut down the operations of these carriers.
February 21, 1961, Secretary of Labor Arthur J. Goldberg, having investigated all the facts and circumstances in the situation, announced that he had recommended to the President that a distinguished and competent public commission should be appointed to review the complex problems involved. In making this announcement the Secretary stated:
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In the immediate background of these strikes is the stated fear of the men involved that the decision of the National Mediation Board in File No. 0-2946, involving United Air Lines, jeopardizes their jobs with the other carriers which they are striking, and their union's bargaining rights and status. The United Air Lines decision is, by its nature, limited to that airline and the parties to that proceeding. It does not automatically apply to other air carriers. Mr. Francis O'Neill, Chairman of the National Mediation Board, has made a public statement of his similar view.
With respect to the decision in its limited application to United Air Lines, the Board is an independent agency duly established by law, whose rulings -cannot be changed by the President, myself, or anyone in the Executive Branch of Government. We are a government of laws and not of men. If the decision 1s considered erroneous, it can be challenged only in the courts. |
On the same day President Kennedy issued Executive Order 10921 establishing a commission to inquire into a controversy between certain air carriers and certain of their employees. This order included all of the struck carriers except Western Air Lines. On February 23, 1961, Executive Order 10922 was issued amending the order of February 21 to include Western Air Lines. See the NMB 1961 Annual Report at pages 20 & 21. See also President Kennedy's Commission to Inquire into a Controversy between Certain Air Carriers and Certain of their Employees, at Post-Release Executive Actions.
On May 31, 1961, the National Mediation Board certified that the Air Line Pilots Association, International, had been duly designated and authorized to represent, for the purposes of the Railway Labor Act, the craft or class of Flight Deck Crew Members, including First Pilot, Reserve Pilot, Copilot and Second Officer or Flight Engineer, employees of United Air Lines, Inc., its successors and assigns, CASE NO. R-3463 (C-2946).
On May 31, 1961, the National Mediation Board certified that the Air Line Pilots Association, International, had been duly designated and authorized to represent, for the purposes of the Railway Labor Act, the craft or class of Flight Deck Crew Members, including First Pilot, Reserve Pilot, Copilot and Second Officer or Flight Engineer, employees of United Air Lines, Inc., its successors and assigns, CASE NO. R-3463 (C-2946).
In Train and Engine Service Employees - Union Pacific Railroad, UTU, BLE - 2000
In the late 1990s, United Transportation Union (UTU) & Brotherhood of Locomotive Engineers (BLE} on the Union Pacific railroad (UP) were embroiled in a hard-fought inter-union contest. These organizations represented over 13,000 employees at the UP. On January 12, 1998, the UTU requested the investigation of an alleged representation dispute involving personnel described as “Train and Engine Service Employees” of the Union Pacific Railroad Company. Following unsuccessful union merger discussions and other delays, in May 1999 the UTU reactivated its previously filed representation application before the NMB. The UTU asserted that the UP's train and engine service employees should be represented in a single craft or class, while the BLE sought to retain the current division of two employee groups. See 1999 NMB Annual Report, page 17 & 18.
The NMB held an evidentiary hearing with numerous witnesses in July 1999. After reviewing the record in this case, on December 30, 1999, the Board determined to refer resolution of the issues noted above to a three-member Panel of prominent labor relations professionals: Arnold M. Zack, Richard I. Block, and Richard R. Kasher. This referral was consistent with the Board’s statutory authority provided by Section 2, Ninth of the Railway Labor Act, 45 U.S.C. § 152, Ninth, see below. See 27 NMB 171.
The three neutral panel issued its Determination of Craft or Class, dated February 29, 2000, and concluded "that the conditions here present do not justify an order by the Board for a single craft or class. Certainly the parties are still free to negotiate the consolidation here in issue. We find only that the conditions here present do not support an order for the Board to impose a single craft or class. In the light of the foregoing there is no reason for us to determine if the UTU properly invoked the Board’s Railroad Merger Procedures." The NMB adopted the Panel’s determination and, on the basis of that determination, File No. CR-6624 was converted to Case No. R-6735 and the Board dismissed the application. See 27 NMB 244. Also see 2000 NMB Annual Report, page 17 & 18.
The UTU filed a motion to reconsider, and on December 21, 2000, the NMB affirmed its decision accepting the panel’s recommendation and denied the motion for reconsideration. See 28 NMB 183.
Certain actions, including AFL-CIO related activities, were noted in the Determination:
In the late 1990s, United Transportation Union (UTU) & Brotherhood of Locomotive Engineers (BLE} on the Union Pacific railroad (UP) were embroiled in a hard-fought inter-union contest. These organizations represented over 13,000 employees at the UP. On January 12, 1998, the UTU requested the investigation of an alleged representation dispute involving personnel described as “Train and Engine Service Employees” of the Union Pacific Railroad Company. Following unsuccessful union merger discussions and other delays, in May 1999 the UTU reactivated its previously filed representation application before the NMB. The UTU asserted that the UP's train and engine service employees should be represented in a single craft or class, while the BLE sought to retain the current division of two employee groups. See 1999 NMB Annual Report, page 17 & 18.
The NMB held an evidentiary hearing with numerous witnesses in July 1999. After reviewing the record in this case, on December 30, 1999, the Board determined to refer resolution of the issues noted above to a three-member Panel of prominent labor relations professionals: Arnold M. Zack, Richard I. Block, and Richard R. Kasher. This referral was consistent with the Board’s statutory authority provided by Section 2, Ninth of the Railway Labor Act, 45 U.S.C. § 152, Ninth, see below. See 27 NMB 171.
The three neutral panel issued its Determination of Craft or Class, dated February 29, 2000, and concluded "that the conditions here present do not justify an order by the Board for a single craft or class. Certainly the parties are still free to negotiate the consolidation here in issue. We find only that the conditions here present do not support an order for the Board to impose a single craft or class. In the light of the foregoing there is no reason for us to determine if the UTU properly invoked the Board’s Railroad Merger Procedures." The NMB adopted the Panel’s determination and, on the basis of that determination, File No. CR-6624 was converted to Case No. R-6735 and the Board dismissed the application. See 27 NMB 244. Also see 2000 NMB Annual Report, page 17 & 18.
The UTU filed a motion to reconsider, and on December 21, 2000, the NMB affirmed its decision accepting the panel’s recommendation and denied the motion for reconsideration. See 28 NMB 183.
Certain actions, including AFL-CIO related activities, were noted in the Determination:
- At the request of the AFL-CIO, the NMB deferred proceeding on the UTU application pending the completion of the AFL-CIO Internal Disputes procedures.
- On February 26, 1998, AFL-CIO Impartial Umpire Paul Weiler issued his determination that the UTU’s effort constituted “A major-perhaps unprecedented – violation of the BLE’s established rights under Article XX”.
- The UTU appeal of the Weiler decision was turned down by a special subcommittee of the AFL-CIO Executive Council on March 12, 1998, and was subject to no further appeal.
- The NMB further stayed its proceedings while the UTU and BLE negotiated the creation of a new labor organization, using the assistance of Tom Donahue as a neutral facilitator. Those proceedings took from May 1998 until May 1999 but were unsuccessful in resolving the conflict.
- The UTU reinstated its application to the NMB on May 1, 1999. In response, the BLE complained to the AFL-CIO that the UTU was not in compliance with the findings of the AFL-CIO Executive Council.
- The Executive Council in turn requested the UTU to withdraw its application by June 28, 1999, and when the UTU declined to withdraw, imposed sanctions pursuant to Art. XX, Sec 10 of the AFL-CIO Constitution.
- On July 2, 1999, AFL-CIO President Sweeney requested the Board to dismiss the UTU application, a request that is currently pending before the NMB. The NMB held hearings on the UTU petition from July 6-10, 1999.
- On August 2, 1999, AFL-CIO General Counsel Hiatt requested permission of the NMB to file an Amicus Curiae position. The Board permitted other organizations that were not participants to file post-hearing positions. See 27 NMB 244.
RLA, Section 2 (152), Ninth:
Disputes as to identity of representatives; designation by Mediation Board; secret elections If any dispute shall arise among a carrier's employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this chapter. In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. In the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election. In any such election for which there are 3 or more options (including the option of not being represented by any labor organization) on the ballot and no such option receives a majority of the valid votes cast, the Mediation Board shall arrange for a second election between the options receiving the largest and the second largest number of votes. The Board shall have access to and have power to make copies of the books and records of the carriers to obtain and utilize such information as may be deemed necessary by it to carry out the purposes and provisions of this paragraph.(Emphasis added)
Disputes as to identity of representatives; designation by Mediation Board; secret elections If any dispute shall arise among a carrier's employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this chapter. In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. In the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election. In any such election for which there are 3 or more options (including the option of not being represented by any labor organization) on the ballot and no such option receives a majority of the valid votes cast, the Mediation Board shall arrange for a second election between the options receiving the largest and the second largest number of votes. The Board shall have access to and have power to make copies of the books and records of the carriers to obtain and utilize such information as may be deemed necessary by it to carry out the purposes and provisions of this paragraph.(Emphasis added)