THE AMERICAN LAW INSTITUTE Continuing Legal Education. Airline and Railroad Labor and Employment Law 2017 April 27-28, 2017 Washington, D.C.

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1 207 THE AMERICAN LAW INSTITUTE Continuing Legal Education Airline and Railroad Labor and Employment Law 2017 April 27-28, 2017 Washington, D.C. The Railway Labor Act Section 9a Presidential Emergency Board Process: 240 Days of Cooling Off or Just Warming Up? By Carmen R. Parcelli Guerrieri, Clayman, Bartos, Parcelli, & Roma P.C. Washington, D.C.

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3 209 April 10, 2017 The Railway Labor Act Section 9a Presidential Emergency Board Process: 240 Days of Cooling Off or Just Warming Up? Carmen R. Parcelli Guerrieri, Clayman, Bartos, Parcelli & Roma, P.C M Street, NW, Suite 700 Washington, DC /cparcelli@geclaw.com* The Railway Labor Act ( RLA ) was amended in 1981 to add Section 9a which provides a more elaborate process for Presidential Emergency Boards ( PEBs ) involving commuter railroads than the process found in Section 10 of the Act. Since that time, 56 PEBs have been convened in total, with 32 arising under Section 9a (all involving commuter railroads in the Northeast). 1 The recent predominance of Section 9a PEBs is attributable to several factors. First and foremost, Section 9a provides for the possibility of two PEBs in a single dispute, the first conducted like a regular Section 10 PEB and the second conducted on a final-offer basis. This fact alone increases the number of Section 9a PEBs, since 15 disputes have necessitated the formation of a second PEB, 2 although in * My thanks to Lisa Vickery of my firm for her excellent work in updating and improving this version of my paper. 1 PEBs 196, 197, and 198 were formed pursuant to Section 510 of the Rail Passenger Service Act ( RPSA ). Pub. L. No , 1145, 95 Stat. 357, (1981). Under the Northeast Rail Service Act of 1981 ( NERSA ), Congress provided for the transfer of commuter rail service operated by Conrail to state owned and operated commuter authorities. RPSA Section 510 established a procedure for the negotiation of collective bargaining agreements for the employees transferring from Conrail to the new entities. Section 510 provided for a double PEB process similar to the process under Section 9a (which was enacted as part of the same Omnibus Budget Reconciliation Act of 1981), however, I have not included the RPSA PEBs in my count of Section 9a PEBs. 2 A chart showing the parties to each second PEB is attached hereto as Exhibit A.

4 210 three instances settlement was reached during the second PEB process. 3 Consolidation in the freight rail industry has likely decreased the number Section 10 PEBs in recent decades, therefore increasing the relative proportion of Section 9a PEBs. In addition, there have only been three airline PEBs since 1981, which also holds down the number of Section 10 Boards. Still, the increasing prevalence of Section 9a PEBs is significant. These PEBs have not received much attention in the RLA literature. This paper aims to fill that void. I. Overview of the Section 9a Process When the NMB releases parties at a commuter railroad from mediation, the special procedures under RLA Section 9a can be invoked and may lead to two PEB proceedings. Until the NMB issues a release, however, the RLA s major dispute procedures apply to collective bargaining in the commuter railroad industry in the same manner as all other contract negotiations under the RLA. Thus, bargaining commences with the service of Section 6 notices, direct negotiations continue until agreement is reached or either party invokes the NMB s mediation services, and mediation continues until the NMB determines that its further efforts are unlikely to be successful and issues a release. As in all RLA major disputes, release from mediation is a two-step process. First, the NMB s final required action under the statute is to proffer binding interest arbitration to the parties pursuant to Section 7 of the RLA. 45 U.S.C. 155, First. Second, if either party rejects the proffer of arbitration, the NMB sends notice to the parties that its mediatory efforts have failed and terminates the Agency s services. Id. This notice triggers a 30-day cooling-off period during which negotiations are to continue and the parties are prohibited from engaging in self-help. Id. It is at this point in the major dispute process that the special procedures under Section 9a may be invoked. Section 9a applies to major disputes between a publically funded and publically operated carrier providing rail commuter service and its employees. 45 U.S.C. 159a(a). Following the NMB s release and if the President has not appointed an Emergency Board under Section 10 of the RLA, Section 9a permits either party or the Governor of an affected state to submit a request which obligates the President to form a PEB. 45 U.S.C. 159a(c)(1). In contrast, under the Section 10 process, in order for a PEB to be formed, the NMB must first determine in its judgment that the parties dispute threaten[s] substantially to interrupt interstate commerce to a degree such as to 3 Settlement was reached during the second PEB in three cases. PEB 247 Report, at 3-4 (Nov. 6, 2014); PEB 238 Report, at 7 (Oct. 29, 2004); PEB 232 Report, at 5 (Feb. 27, 1997). In other cases, some unions involved in the first PEB have settled before creation of a second Board, while the non-settling union or unions have continued through the Section 9a process. See, e.g., PEB 241 Report, at 6 (May 15, 2007). Two Section 9a disputes have settled during the first PEB process. See PEB Report 239, at 2 (Sept. 15, 2006); PEB Report 215, at 1 (Aug. 2, 1988)

5 211 deprive any section of the country of essential transportation service. 45 U.S.C Upon making such a finding, the NMB must notify the President, who may thereupon, in his discretion, create an Emergency Board. Id. The first PEB under Section 9a is conducted in the same manner as a PEB formed under Section U.S.C. 159a(c)(1). The number of Board members is determined by the President. In all past Section 9a PEBs, however, the President has appointed three Board members, designating one member as Chairman. The RLA requires that Board members not be pecuniarily or otherwise interested in the dispute, but does not further specify their qualifications. 45 U.S.C By custom, the NMB usually advises the President on the selection of Board members, who are generally arbitrators familiar with the industry and/or former NMB officials. The first PEB is charged with the responsibility to investigate the dispute and submit a report to the President within 30 days of its formation. 45 U.S.C. 159a(c)(1), 160. The report is not legally binding, but carries the persuasive force of all PEB reports. The creation of the first Section 9a Board commences a 120-day cooling-off period. 45 U.S.C. 159a(c)(1). In contrast, under Section 10, the creation of a PEB triggers a cooling-off period which only lasts for 30 days after the Board issues its report. 45 U.S.C If there is still no settlement 60 days after the formation of the first PEB, Section 9a directs the NMB to conduct a public hearing at which each party shall appear and provide testimony setting forth the reasons it has not accepted the recommendations of the emergency board for settlement of the dispute. 45 U.S.C. 159a(d). If the dispute still remains unresolved 120 days after the creation of the first PEB, either party or the Governor of an affected state may require the formation of a second PEB. 45 U.S.C. 159a(e). As with the first PEB, the President has discretion in terms of the number of Board members, but all past second PEBs have consisted of three members. Nothing in Section 9a prohibits an individual from serving as a Board member on both the first and the second PEB. In the past, however, the same individuals have not served on both panels with one exception. 4 In the unlikely event no request is made to form a second PEB, the parties would be free to engage in self-help at the expiration of the first 120-day cooling-off period. Within 30 days after creation of the second PEB, the parties are required to submit final offers for settlement of the dispute. 45 U.S.C. 159a(f). Within 30 days following the submission of final offers, the second PEB is required to submit a report to the President setting forth its selection of the most reasonable offer. 45 U.S.C. 159a(g). Past Section 9a Boards have disagreed as to whether they are required to select one party s offer as a total package, or are permitted to select among the parties offers on an item-by-item basis. 4 The exception was Peter Tredick who served as Chairman for PEBs 240 and 241 involving Metro-North Railroad in

THE AMERICAN LAW INSTITUTE Continuing Legal Education

305 THE AMERICAN LAW INSTITUTE Continuing Legal Education Airline and Railroad Labor and Employment Law: A Comprehensive Analysis October 1-2, 2015 Washington, D.C. The Railway Labor Act Section 9a Presidential