Presidential Authority to Extend Deadline for Submission of an Emergency Board Report Under the Railway Labor Act ( 1990 )

Presidential Authority to Extend Deadline for Submission of an
Emergency Board Report Under the Railway Labor Act
T h e P re s id e n t m a y re q u ire an E m e rg e n c y B o a rd u n d e r th e R a ilw a y L a b o r A c t to s u b m it its
r e p o rt b e fo re th e sta tu to ry d e a d lin e , b u t h e m a y n o t e x te n d th a t th irty -d a y d e a d lin e u n le s s th e
p a rtie s in v o lv e d h av e e n te re d in to a s id e a g re e m e n t e x te n d in g th e sta tu s q u o p e rio d d u rin g
w h ic h th e y re fra in fro m self-h e lp .
T h e re is s u b sta n tia l d o u b t as to w h e th e r a c o u rt w o u ld c o n c lu d e th a t s u c h a s id e a g re e m e n t
b e tw e e n th e p a rtie s n o t to re s o rt to se lf-h e lp is e q u ita b ly e n fo rc e a b le u n d e r th e N o rris -
L a G u a rd ia A c t.
T h e P re s id e n t d o e s n o t h a v e th e a u th o rity to im p o s e a s ec o n d s ta tu s q u o p e rio d b y c o n v e n in g a
s e c o n d E m e rg e n c y B o a rd o r re c o n v e n in g th e o rig in a l B o ard .
March 13, 1990
M e m o r a n d u m O p in io n f o r
th e A s s o c ia t e C o u n s e l t o t h e P r e s id e n t
This memorandum responds to your request for our views as to the extent
of the President’s power to alter the length of the thirty-day time period
within which an Emergency Board appointed under section 10 of the Rail­
way Labor Act (“RLA”), 45 U.S.C. § 160, must submit its report to the
President. As explained more fully below, we conclude that, because the
filing of the report has specific legal consequences, the President does not
have the authority to unilaterally extend the statutory deadline. He may,
however, shorten the time for filing a report. We also conclude that the
President may grant an extension in situations where the parties involved
have agreed to extend the period during which they will refrain from self-
help. Given the lack of case authority, however, it is difficult to determine
whether a court would equitably enforce such an agreement. In our view,
there is no more than an even chance that a court would conclude that such
agreements are equitably enforceable despite the Norris-LaGuardia Act, and
there remains a substantial litigation risk that a court would reach a contrary
conclusion. Finally, we conclude that the President does not have the authority
57
to impose a new status quo period creating a second Emergency Board.
L lackgrounnidl
We understand that under National Mediation Board (“NMB”) auspices,
the National Railway Labor Conference and seven of the affected railway
labor organizations (collectively “the parties”)1 have agreed to an extended
two-phase Emergency Board procedure for addressing all of the unresolved
issues in the current round of national bargaining. Under the contemplated
procedure, the National Mediation Board would proffer arbitration to the
parties on all of the outstanding issues, and the parties would decline the
proffer, thus triggering a thirty-day “cooling-off’ period. See 45 U.S.C. §
155 First.
The NMB would then promptly recommend that the President appoint an
Emergency Board under section 10 of the RLA, 45 U.S.C.§ 160. Although
the Emergency Board would be established to address all issues involved in
the collective bargaining dispute, it would produce two separate reports,
with the first addressing the health and welfare issues and the final report
addressing the wages and rules issues. As soon as the health and welfare
report was issued, the NMB would, at the request of the parties, engage in
further intensive emergency mediation on the wages and rules issues. In
order to allow the Emergency Board sufficient time to prepare its reports,
the parties have agreed to an extension of the deadline for submission of the
Emergency Board’s final report to the President. Specifically, the parties
have requested that all reports and recommendations o f the Emergency Board
be issued by September 15, 1990, and the parties have agreed to any reason­
able request for an extension of time of the Emergency Board to allow
ample time for hearings, mediation and formulation of recommendations.
The parties have also agreed not to resort to self-help until after the expira­
tion o f the thirty-day RLA statutory ‘cooling-off’ period following the report
by the Emergency Board on the Wage and Rules issues, and then only if
Congress is in session.
We understand that this proposal is only one of several under consider­
ation. Accordingly, this memorandum discusses general principles concerning
the limits on altering the RLA procedures, rather than analyzing the particu­
lars o f any specific proposal.
EL Discussions
Section 10 o f the Railway Labor Act provides that, once created, an Emer­
' W e a re in fo rm e d b y the N M B that th e re are o th e r la b o r o rg anizations that have yet to agree to this
p ro c e d u re .
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gency Board “shall investigate promptly the facts as to the dispute and make
a report thereon to the President within thirty days from the date of its
creation.” 45 U.S.C. § 160. Section 10 further provides that “ [a]fter the
creation of such board and for thirty days after such board has made its
report to the President, no change, except by agreement, shall be made by
the parties to the controversy in the conditions out of which the dispute
arose.” Id. Thus, on its face the statute appears to contemplate a status quo
period of no more than sixty days after creation of an Emergency Board.
A. President’s pow er to alter deadline fo r submitting report
1. President may not unilaterally extend deadline
We believe that the President may not unilaterally extend the deadline for
submission of the Emergency Board report. First, the language of the stat­
ute does not provide for any extension in the thirty-day time period within
which the Emergency Board must submit its report. Moreover, the legisla­
tive history indicates a fairly clear intent not to permit extensions of the
reporting deadline and the subsequent start of the thirty-day cooling-off pe­
riod. Indeed, Congress, in enacting the RLA, specifically rejected an
amendment that would have authorized unilateral presidential extensions of
the reporting deadline.
In the House hearings on the bill, Congressman Burtness questioned rep­
resentatives of both labor and management about the adequacy of the
thirty-day time period. Mr. Richberg, the counsel for the organized railway
employees, stated that thirty days would be adequate, that the Emergency
Board provision had been the subject of very difficult negotiation, and that
because of the status quo provision, the parties did not want an Emergency
Board that would “operate indefinitely after a controversy has gone to this
stage.” Railroad Labor Disputes: Hearings on H.R. 7180 Before the House
Comm, on Interstate and Foreign Commerce, 69th Cong., 1st Sess. 100 (1926)
(“House Hearings").2 Mr. Thom, the General Counsel of the Association of
Railway Executives, testified to the same effect, explaining that the thirty-
day period was the result of a compromise between labor and management,
that this was a significant concession, and that the parties involved did not
want “anything but a prompt method of dealing with the situation in the case
of an emergency board.” Id. at 128.
Apparently not satisfied with these responses, Congressman Burtness of­
fered an amendment on the floor of the House that would have provided that
“the President may in his discretion extend such time in which the report is
2 T h e Su p rem e C ourt has repeatedly noted that, because the R LA w as frankly a ck n o w led g ed to be “ an
a g re em en t w o rk ed out betw een m anagem ent and labor, and ratified by the C o n g ress and the P resid e n t,"
the “ statem en ts o f the spokesm en fo r th e tw o parties m ade in the h earings on the proposed A ct are
e n title d to great w eight in th e construction o f the A ct.” Chicago & N.W. Ry. v. United Transp. Union,
40 2 U S 5 7 0 ,5 7 6 (1971).
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to be made an additional period of not to exceed thirty days.” Staff of
Subcomm. on Labor, Senate Comm, on Labor and Pub. Welfare, 93d Cong.,
2d Sess., Legislative History o f the Railway Labor Act, As Amended 453
(Com m . Print 1974) (reprinting congressional debates). Congressman
Burtness argued that thirty days would often not be sufficient time and that
there would be no danger in allowing the President to have this discretion to
extend the deadlines. Id. The amendment was rejected with little debate. Id.We recognize that it might be argued that an extension is permissible
because the thirty-day period is meant merely to be directory rather than
mandatory. Cf. United States v. Air Florida, Inc., 534 F. Supp. 17, 20 (S.D.
Fla. 1982) (thirty-day time period in which NMB, under section 2 Ninth of
the RLA, must certify conclusions of representational dispute, was “direc­
tory rather than mandatory;” accordingly, failure of NMB to meet deadline
did not invalidate its investigation and subpoena request); see also System
F ed ’n No. 40, Ry. Employees D e p ’t v. Virginian Ry., 11 F. Supp. 621, 627
(E.D. Va. 1935), a ff’d , 84 F.2d 641 (4th Cir. 1936), aff'd, 300 U.S. 515(1937). In light o f the legislative history of the provision, however, it would
be difficult to conclude that the thirty-day statutory deadline was merely
m eant to be directory, rather than mandatory. Indeed, were the deadline
read to be merely directory, the President could unilaterally extend the re­
porting date, thus effectively extending the status quo period. An Emergency
Board would be able to achieve the same result simply by delaying the
submission o f its report. Either of these conclusions would directly contra­
dict the intent of the RLA drafters as expressed in the legislative history.
O ur conclusion is not altered by the general rule of construction that a
“statutory time period is not mandatory unless it both expressly requires an
agency or public official to act within a particular time period and specifies
a consequence for failure to comply with the provision.” Thomas v. Barry,
729 F.2d 1469, 1470 n.5 (D.C. Cir. 1984) (quoting Fort Worth N a t’l Corp. v.
FSLIC, 469 F.2d 47, 58 (5th Cir. 1972)); see also St. Regis Mohawk Tribe v.
Brock, 769 F.2d 37, 41 (2d Cir. 1985) (collecting cases), cert, denied, 476
U.S. 1140 (1986); Usery v. Whitin Machine Works, Inc., 554 F.2d 498, 501
(1st Cir. 1977). The statutory time table at issue defines a narrow exception
to the parties’ rights to use self-help. .General rules of construction cannot
be used to defeat these specific restrictions and create a unilateral, discre­
tionary ability to derogate from these rights. Furthermore, we question
whether this general rule of construction could be applied to contradict “clear
indications of congressional intent that the limitations are to be strictly en­
forced.” U sery, 554 F.2d at 501.
In any event courts would likely hold that application of this rule indi­
cates that the deadline in section 10 is mandatory. Section 10 expressly
requires the Emergency Board to submit its report “within thirty days from
the date of its creation.” 45 U.S.C. § 160. Moreover, although on its face
the RLA does not specify the consequences of the late filing of an Emer­
gency Board report, it seems clear from the above discussion of the legislative
60
history that the RLA effectively penalizes late reports by failing to toll the
start of the statutory cooling-off period, thus refusing to extend the status
quo period beyond sixty days.
Finally, as discussed more fully below, we believe that courts would likely
give significant weight to any construction of the Act that was supported by
long-established administrative practice. In this regard, we are not aware o f
any instance in the sixty-four years of practice under the RLA where the
President unilaterally extended the time for report over the objection of the
parties.3 The information supplied to us by the NMB indicates that exten­
sions have generally been made only upon the request of the parties, who
generally made a separate side agreement extending the status quo.
Accordingly, we conclude that the thirty-day deadline for the submission
of the report is mandatory, and that it may not be extended by the President
or by an Emergency Board.
2. P residen t’s pow er to shorten deadline
An Emergency Board is appointed by the President and is within the
executive branch. Nothing in the language of the statute even purports to
limit the President’s constitutional authority to supervise the board. Indeed,
the legislative history of the Act appears to contemplate that the board would
function at the direction and control of the President.4 Accordingly, we
believe that the President may alter the deadline within which an Emergency
Board must submit its report, so long as the new deadline is within the
statutory thirty-day time period. The President may therefore require the
board to submit its report in less than thirty days.
B. Extension o f report deadline with the consent o f the parties
We note that research by the NMB staff indicates that at least fifty Emer­
gency Boards created since 1960 have submitted their reports more than
thirty days after their creation. With apparently few exceptions5, these ex­
tensions were the result of requests by the parties or the board that an
extension be granted by the President, accompanied by an agreement by the
parties to abide by an extended status quo period (usually until thirty days
3T he N M B h as inform ed us that E m ergency B oard No. 209 subm itted its rep o rt four d a y s late w ith o u t
o b ta in in g the c o n se n t o f the parties. We are not aw are, how ever, w hether the E m ergency B oard o b ­
ta ined a fo rm al p resid en tial ex ten sio n , o r sim ply subm itted its rep o rt ju s t a few days late.
4 In th is reg ard , w e note that the legislative history places con sid erable em phasis on th e fact th a t an
E m ergen cy B oard is a presidential board. See, e.g.. S ta ff o f Subcom m . on Labor, S en a te C om m , on
L ab o r an d Pub. W elfare, 93d C ong., 2d Sess., Legislative History o f the Railway Labor Act, As Am ended
2 94 (C om m . P rin t 1974) (reprinting congressional debates) (statem ent o f R ep. N ew ton) (stating th a t
p arties w ould c o o p erate w ith an E m ergency B oard because "[n ]eith er party w ould defy the P resid en t o f
the U n ited S tates” ); id. at 229 (statem ent o f R ep. C ooper) (E m ergency B oard is backed by “the p o w e r
a n d prestig e o f the P resident").
’ T he N M B h as in d icated that E m ergency B oard N o 209 su b m itted its rep o rt four days la te w ith o u t any
a g re em en t by th e p arties to abide by an extension. See note 3 supra.
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after the late report is submitted). The Department of Labor has informed
us that the total number of such extensions since the enactment of the RLA
is more than seventy. The Labor Department also reports that, up to the
present time, no party has ever reneged on a side agreement to forbear from
self-help. O f course, as noted below, this perfect track record means that the
legally binding character of these extensions has never been subject to liti­
gation.
1. Legality o f an extension granted with p arties' consent
We believe that, despite our earlier conclusions concerning unilateral ex­
tensions, several arguments can be made that an extension granted with the
consent of the parties would not violate section 10 of the RLA. First, and
most importantly, the granting of extensions when the parties have agreed to
extend the status quo period is supported by a long and consistent adminis­
trative practice under the Act. This practice would presumably be entitled to
considerable weight in the construction of the statute. See, e.g.. Chevron,
U.S.A., Inc. v. N atural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984) (noting that the Court has “long recognized that considerable weight
should be accorded to an executive department’s construction of a statutory
scheme it is entrusted to administer”); see also North Haven Bd. o f Educ. v.
Bell, 456 U.S. 512, 535 (1982) (“Where ‘an agency’s statutory construction
has been fully brought to the attention of the public and the Congress, and
the latter has not sought to alter that interpretation although it has amended
the statute in other respects, then presumably the legislative intent has been
correctly discerned.’”) (quoting United States v. Rutherford, 442 U.S. 544,
554 n.10 (1979)).6 Indeed, this office, in an earlier opinion approving the
use o f extensions with the consent of the parties, placed considerable weight
on this past practice, noting that “this is a point upon which ‘a page of
history is worth a volume o f logic.’” M emorandum for Laurence H.
Silberman, Deputy Attorney General, from Robert G. Dixon, Jr., Assistant
Attorney General, Office of Legal Counsel, Re: President's Power to Extent
[sic ] in which Emergency B oard Under Railway Labor Act M ust Submit its
R eport at 2 (June 19, 1974) (quoting New York Trust Co. v. Eisner, 256 U.S.
345, 349 (1921)).
Second, we note that the existence o f an enforceable7 side-agreement
between the parties extending the status quo period would have the effect of
removing all consequences of late submission of the report. By binding the
parties to refrain from the use o f self-help until after a specified period, the
side agreement renders the running of the statutory clock irrelevant. There
‘ G iv e n th e freq u e n c y o f th e practice, a n d C o n g ress’ o c casio n al statu to ry intervention into the resolu-
d o n o f p a rtic u la r d isp u te s, it cannot serio u sly be d o ubted th at C ongress has been fully aw are o f the use
o f e x te n sio n s. We are not aw are of any co n g ressio n al atte m p ts to lim it such practices.
7W e d is c u s s th e issu e o f enforceability b elow . See infra pp. 63-66.
62
would thus be no consequences to a failure to meet the section 10 deadline,
and, in these circumstances, it might fairly be said that the import of the
thirty-day deadline was merely “directory” rather than “mandatory.” See
Thomas , 729 F.2d at 1470 n.5 (statutory time period is not mandatory unless
it expressly requires action within a particular time period an d specifies
consequences for a failure to comply). In short, when failure to comply
with the deadline is completely without practical effect, there is no reason
why the deadline may not, in those circumstances, be treated as directory.
Finally, we note that nothing in the legislative history is inconsistent with
these conclusions. The legislative history discussed above indicates that the
drafters were concerned with the delays that might be caused by unilateral
presidential or board action. See supra pp. 59-60 ; see also House Hearings
at 100 (statement of Mr. Richberg) (stating that indefinite extensions for an
Emergency Board’s report were undesirable because “there is always a great
interest on the part of one person to have delay and on the part o f the other
person not to have delay.”) By contrast, where the parties have themselves
agreed to extend the status quo period, the drafters’ concerns are fully satis­
fied. Indeed, permitting an extension in such circumstances would be
consistent with the RLA’s declared purposes of avoiding interruptions to
commerce and of providing for the “prompt and orderly settlement” of dis­
putes between carriers and employees. 45 U.S.C. § 151a. Of course, given
the President’s power to insist upon the report within the statutory time
frame, see supra p. 61, the President may refuse to grant an extension despite
the parties’ agreement to refrain from self-help and despite their request that
he permit the extension.
2. Enforceability o f an agreem ent to refrain from self-help during
extended Emergency Board proceedings
We believe that the issue of whether any side agreement by the parties
would be equitably enforceable under the Norris-LaGuardia Act, 29 U.S.C.
§§ 101-115 is a difficult one, give the lack of judicial authority on this
question.8 We believe that there is no more than an even chance that a court
would enforce such an agreement given the consistent past practice, over a
long period of time, of using these agreements to facilitate the RLA dispute
settlement processes. Nevertheless, a significant argument can be made that
these agreements are, strictly speaking, outside the process mandated by the
RLA, and there is thus a substantial litigation risk that they would be de­
clared to be equitably unenforceable.
Among other things, section 4 of the Norris-LaGuardia Act, 29 U.S.C. §
104, provides:
No court of the United States shall have jurisdiction to issue
any restraining order or temporary or permanent injunction in
! In th is regard, w e note that the Labor D epartm ent has advised us that the enfo rceab ility o f s u c h side
a g re em en ts has n e v er been subject to litigation.
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any case involving or growing out o f any labor dispute to pro­
hibit any person or persons participating or interested in such
dispute . . . from . . . [cjeasing or refusing to perform any
work or to remain in any relation of employment . . . .
The Supreme Court has held that, despite the broad reach of this language,
the Norris-LaGuardia Act “does not deprive the federal court[s] of jurisdic­
tion to enjoin compliance with various mandates of the Railway Labor Act.”
Burlington N.R.R. v. Brotherhood o f Maintenance o f Way Employees, 481
U.S. 429, 445 (1987) (quoting International A ss’n o f Machinists v. Street,
367 U.S. 740, 772-73 (1961)). The Court emphasized, however, that “[t]his
exception is necessarily a limited one,” and that, even when a party seeking
injunctive relief is able to show a violation of a duty imposed by the RLA,
“[c]ourts should hesitate to fix upon the injunctive remedy . . . unless that
remedy alone can effectively guard the plaintiff’s right.” Id. at 446 (quoting
International A s s ’n o f Machinists, 367 U.S. at 773).
The key issue is whether a breach of the side agreement would violate
any o f the “various mandates of the Railway Labor Act.” We believe that a
persuasive argument can be made that any breach of the side agreement
would violate section 2 First of the RLA, 45 U.S.C. § 152 First, which
provides:
It shall be the duty o f all carriers, their officers, agents, and
employees to exert every reasonable effort to make and main­
tain agreements concerning rates o f pay, rules, and working
conditions, and to settle all disputes, whether arising out of
the application of such agreements or otherwise, in order to
avoid any interruption to commerce . . . .
In C hicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570 (1971), the
Suprem e C ourt held that, notwithstanding the provisions of the Norris-
LaGuardia Act, a federal court has jurisdiction in appropriate circumstances
to enjoin a strike, even during the self-help period, where the union has
failed to satisfy its section 2 First obligation to use every reasonable effort
to settle the dispute.
The precise scope of this duty, and of the exception to the anti-injunction
provisions of the Norris-LaGuardia Act that it creates, is difficult to discern.
In Trans I n t’l Airlines, Inc. v. International Bhd. o f Teamsters, 650 F.2d 949,
962 (9th Cir. 1980), cert, denied, 449 U.S. 1110 (1981), the court held, per
Judge (now Justice) Kennedy, that a breach of a contractual promise not to
strike during the self-help period was an enjoinable violation of the section
2 First duty only if there is a substantial relationship between the breach and
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the RLA dispute resolution procedures: “Absent a substantial nexus with
statutory dispute settlement mechanisms or an agreement to arbitrate, an
injunction may not issue to prevent a plain breach of a no-strike clause by a
union.” Applying this standard, the court concluded that the contract at
issue, which flatly prohibited strikes against certain flights, was not equita­
bly enforceable. The contract regulated conduct during the self-help period,
when the parties had fully exhausted the RLA dispute resolution procedures,
and therefore the “RLA plan for avoiding disruption [was] not threatened by
the . . . strike.” Id. at 963. Chicago & N.W. Ry. was distinguished on the
grounds that, in that case, “the union had failed to use reasonable efforts to
comply with the mandatory disputes settlement mechanisms that lie at the
heart of the Act,” and that the injunction in that case therefore protected the
“integrity” of the RLA processes. Trans In t’l Airlines, 650 F.2d at 963.
We believe that the best argument for enforcing such side agreements is
that they have a “substantial nexus with [the] statutory dispute settlement
mechanismf].” Id. at 962. Given the long-established practice of entering
into side agreements to facilitate the production of the statutorily required
reports by the Emergency Board, we believe that these agreements are argu­
ably part of the dispute resolution process. At a minimum, it would appear
that they indeed have a “substantial nexus” to that process.9
There is, however, a potential counterargument. As our earlier discussion
shows, these side agreements regulate conduct that is, strictly speaking, out­
side the statutory status quo period. Accordingly, their “nexus” to the statutory
scheme might be questioned, especially if a court were to read Trans Int'l
A irlines as broadly prohibiting any injunctions once the strict statutory dead­
lines had passed.
It might also be argued in support of enforcing the agreement that a strike
called before the expiration of the extended period specified in the side
agreement is a violation of the status quo provisions of section 10.10 We
believe, however, that this argument is untenable in light of our earlier con­
clusion that late submission of the report will not toll the running of the
statutory status quo period. Indeed, the possibility of an extension being
granted at all hinges upon the parties’ willingness, by private contract, to
’ Indeed , it m ight also be argued that the u n io n ’s c o n d u ct in agreeing to an extension o f the statu s q uo
p e rio d , w ith its con seq u en t effects in altering the norm al R LA process, is a breach o f the section 2 F irst
d u ty w here, as is likely to be the case, the union intended all along to abide only by the strict statu to ry
de fin itio n o f the status quo period. Such a case w ould clo sely resem ble Chicago & N.W. Ry., w hich
au th o riz e d an ap p ro p riate injunction, during the self-help period, w here the union failed to use re a so n ­
ab le efforts to settle the d isp u te d u rin g the RLA d isp u te settlem en t pro ced u res. In d eed , a u n io n 's
a ctio n s in cau sin g the delay o f the subm ission o f the rep o rt, w ith the intent to take full ad v an tag e o f the
stric t statutory d ead lin e, w ould arguably “ threaten" the “ RLA plan for a voiding d isru p tio n ," an d an
ap p ro p ria te injunction against the ensuing strike w ould “p ro tect" the “ integrity o f these m e c h an ism s.”
Trans In t'l Airlines, 650 F.2d at 963. T he availability o f this argum ent, how ever, w ould a p p ea r to turn
on the u n io n ’s in ten t at the tim e o f entering into the side agreem ent.
l0It is c le a r th at a federal c o u rt has ju risd ic tio n to en fo rce co m p lian ce w ith the status q u o p ro v isio n s o f
sec tio n 10. See, e.g.. Pan American World Airways, Inc. v. Flight E ng'rs' In t’l A s s ’n, 3 06 F.2d 840, 846
(2 d Cir. 1962).
65
extend the status quo period beyond that specified in the statute." Accord­
ingly, we conclude that, although a union might violate the side agreement
by calling a strike outside the sixty-day statutory period, it does not thereby
violate section 10.12
Lastly, it might be argued that, to the extent that there is any ambiguity in
the side agreement concerning the extent of the restrictions on self-help, the
necessary interpretation of the agreement raises a “minor” dispute that must
be resolved under the compulsory arbitration provisions of the RLA, see 45
U.S.C. § 153. The Supreme Court has held that, pending the resolution of
these minor dispute resolution procedures, the parties have an equitably en­
forceable obligation to refrain from self-help. See Brotherhood o f R.R.
Trainmen v. Chicago River & I.R.R., 353 U.S. 30 (1957). This argument
may be unavailing for two reasons. First, if Trans Int’l Airlines is correct in
holding that agreements to regulate conduct during the self-help period are
not equitably enforceable, it is unclear how there can be any need for arbi­
tration to determine to what extent the side agreement limits self-help; the
agreem ent will be equitably unenforceable regardless of the extent of its
restrictions.13 Second, the availability of this argument hinges on the precise
wording of the restrictions in the side agreement drafted by the parties, a
factor that is not within the control of the executive branch. If the restric­
tions are clearly worded, no minor dispute can arise, and no equitable relief
will be available under this theory.
C. Presidential p o w er to reconvene emergency boards
We do not believe that the President possesses power to impose a second
status quo period by convening a second Emergency Board or by reconven­
ing the original board. Neither the text nor the legislative history of the
RLA provide any support for such a power. Indeed, the legislative history’s
emphasis on the need for a prompt resolution of the board’s activities, within a
fixed period of time, affirmatively undercuts the notion that the President may
extend the status quo period simply by reconvening or reappointing the board.
Nor do we believe that past practice under the Act provides any support
for such a power. The NMB has informed us that there appears to have been
" M o re o v e r , b e ca u se the possibility o f an ex ten sio n d e p en d s upon the p a rtie s’ p rivate co n tract, there is
a rg u a b ly n o reaso n w h y the parties m ay not agree to ex te n d the status quo period until ten o r tw enty
(ra th e r th a n th irty ) d a y s a fte r the E m erg en cy B o a rd ’s late su b m ission o f the report. It w ould be d ifficu lt
to a rg u e th a t such an “ ex ten sio n plus te n d ay s” period is eq u iv alen t, fo r purposes o f the R LA and the
N o rris-L a G u a rd ia A ct, to th e statutory p e rio d described in section 10.
I! W e re a ch th is c o n clu sio n despite th e fa c t that the statu te states th at the co o lin g -o ff period com prises
th e “ th irty d a y s a fte r su ch board has m a d e its rep o rt to the P resid e n t." As discussed above, the w ording
o f th is s e c tio n w a s b a se d o n the d ra fte rs ’ assu m p tio n th a t the thirty-day d e ad lin e w ou ld be stric tly
c o m p lie d w ith .
13 It m ig h t be arg ued , how ever, that in te rp reta tio n o f the ag reem ent w ould still be necessary in o rd e r to
d e te rm in e th e e x te n t o f entitlem ent to o th e r form s o f relief, such as dam ages.
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only two such reconventions in the last forty-one years.14 The information
that we have been given concerning such reconvention indicates the fairly
narrow circumstances under which boards have been reconvened. Thus,
both of the two boards that were reconvened between 1950 and 1987 were
reconvened only after the parties had requested this action and only for the
purpose of clarifying an ambiguous point in the board’s original report. See
Letter from H. Witt, Member, NMB to the President (Sept. 8, 1986) (recon­
vening of Emergency Board No. 211); Letter from Emergency Board No.
187 to the President (Nov. 26, 1975) (report of reconvened board). These
very limited precedents provide no support for the view that the President
may impose a new status quo period by reconvening an Emergency Board
over the objections of the parties or to deal with completely different issues.15
CONCLUSION
We conclude that the President may grant an extension for filing a report
by an Emergency Board appointed under section 10 of the Railway Labor
Act only if the parties consent to the extension by making a side agreement
that extends the status quo period. As a practical matter, the effectiveness o f
any such extension of the status quo period depends upon the equitable
enforceability of the side agreement, a matter concerning which there is
substantial doubt. Furthermore, although the President may not unilaterally
extend the thirty day deadline for filing a report, he may shorten it. Finally,
any subsequent boards appointed by the President (whether by reconvening
an Emergency Board or appointing a new one) cannot bind the parties to
status quo without their consent.
JOHN O. McGINNIS
Deputy Assistant Attorney General
Office o f Legal Counsel
u T he NM B has stated that there m ay have been as m any as fo u r reconventions in the first tw e n ty -fo u r
years, but it does not as yet have in fo rm atio n on the circu m stan ces o f the reconventions.
15O f co u rse, the P resid en t m ay ch o o se to c onsult w ith the m em bers o f the form er b o a rd ab o u t any issu e
relatin g to th e dispute, but this w o u ld not be an action taken u n d er the R L A , and it w o u ld not h a v e the
effe c t o f im posing a new status q u o period.
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