THE AMERICAN LAW INSTITUTE Continuing Legal Education

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1 305 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 Emergency Board Process: 240 Days of Cooling Off or Just Warming Up? By Carmen Parcelli Guerrieri, Clayman, Bartos & Parcelli, P.C. Washington, D.C.

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3 307 September 4, 2015 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, 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, 55 PEBs have been convened in total, with 31 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 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.

4 308 9a PEBs, since 14 disputes have necessitated the formation of a second PEB, although in three instances settlement was reached during the second PEB process. 2 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 2 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). Another Section 9a dispute is on-going at the time of this paper with the first PEB having issued its report less than a month ago. PEB 248 Report (Aug. 14, 2015). At this point it is unknown whether there will be a second PEB in that matter

5 309 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 (including the Amtrak Commuter Services Corporation) and its employees 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 deprive any section of 3 Amtrak Commuter Services Corporation was set up as a wholly-owned subsidiary of Amtrak to operate some of the commuter rail service previously provided by Conrail

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

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