"Beware of those who sow fear instead of reason." - Patrick J. Cleary at the National Mediation Board's annual conference, speaks about railroad collective bargaining - Column

Railway Age, Sept, 1992 by Gus Welty

Following two work stoppages and two Congressional interventions in two years, it is time to take a thorough look at the requirements, procedures, and processes of collective bargaining under the Railway Labor Act. So let's pay attention to one of the most eloquent and most reasoned discussions of the subject that has come along. It was presented by Patrick J. Cleary, member (and immediate past chairman) of the National Mediation Board at the 15th Annual Cooperstown Conference.

When the Act was passed in 1926, he pointed out, railroads were perhaps the nation's largest civilian employer, virtually the only player in intercity transportation, and a highly-regulated industry. Today, all that is changed. Employment has been drastically reduced, intercity transportation competition is fierce, and the industry has been largely deregulated.

In the face of this different scene, Pat Cleary asked, what do we do? He sees two options:

"First, we could do nothing. It's the easiest course. It's the course that has brought us to where we are today. Every two or three years we can have another showdown, another chess game, another strike, or lockout, or whatever you please. Every two or three years, Congress and the parties and the public---you remember the public---will complain that the system doesn't work, and in my opinion they'll be right. However, every two or three years we can count on the fact that Congressional attention spans are short, and we can return to our respective bunkers and brace ourselves for the next fray.

"In the meantime, we won't have to come to grips with forging a relationship with our workers. We won't have to get creative about solving our labor-management problems as other industries have, because our fate will ultimately not be in our own hands. Better to work on our relationship with Congress instead.

"There is a second option, and it's one we've not yet tried. It involves action, and it involves leadership ....

"The second option would be to finally take a step back--between wars, while the noise level is relatively low---and re-examine our purpose."

How might this happen? Cleary proposes creation of a panel with representatives from the Administration, from rail and airline labor and management, and from the academic community (people with experience inside and outside the two industries). He would add Congressional representation. The group "should be chaired by an academic above reproach."

Then, Pat Cleary said, a number of fundamental questions should be considered:

--Should railroads and airlines still be segregated from the rest of American industry in their treatment under current labor law? "I've said to a number of folks, 'Let's go stand in an intermodal yard and discuss the logic of the Act.' Maybe there is logic to it, maybe there's not, but this question needs to be reexamined. Do we as a society still want to place a heavy premium on the prevention of disruptions to commerce? Should the changes in these industries since 1926 require a change in the way we treat their labor relations?"

--If railroads and airlines still deserve separate treatment, should they both be treated the same? "There are vast differences in the operations of these two modes of transportation. Is there still logic to having an increasingly global airline industry under the same statute as the increasingly intermodal railroad industry, while trucking, shipping and transit are treated differently?"

--Should there be a right to strike? "There's been much hand-wringing over this topic, and the policy-makers need to come to agreement on it. If there is, de facto, no right to strike, then we should call a spade a spade and craft a system which takes this into account. If, on the other hand, all interested parties come to the judgment that the right to strike is real and should be preserved, then a different result would be commanded, in my view."

--Should there continue to be a right to secondary activity? "In my opinion, this question goes hand-in-hand with the right to strike, but if the parties decide there's no linkage, so be it. Remember, the Act talks in terms of 'threat' of shutdowns. If there are threats of secondary activity, it instantly creates a national situation. Everyone seems to believe that it's a silver bullet, to be used once and never again. If that's the case, then the parties who would use it and the parties who would be on the receiving end of it ought to sit down and discuss whether having it around is more trouble than it's worth. Without it, unions may have freer use of the strike, but at least some of them might remain more local in nature. Again, if the consensus of the group was that there should be no right to strike, then the issue of secondary activity is moot."

--What has been the effect of the Act on the competitiveness of these two industries? "This is a thorny issue which has been whispered about for decades, one that needs to be brought out in the open. Some carriers would say that the Act has forced them over the years to accept 'inefficiencies,' meaning work rules, which have hurt their competitive posture. On the other hand, many unions would point out, especially in the airline industry, that it's the lowest-labor-cost carriers that are in the most dire financial straits. The issue should be addressed, with as much empirical data as can be supplied by all."