Tag Archives: Railway Labor Act

Ohio OT laws do not apply to railroad workers

by on March 1, 2012 in Rail Law Blog

I was recently asked at a union meeting whether any laws in Ohio provide recourse to a railroad worker who was not paid 1 ½ times his regular rate of pay for hours worked in excess of eight hours.  The short answer, unfortunately, is no.  The reasons, in Ohio and also other states, are explained below.

Ohio Revised Code §4111.03(A) requires employers to pay one and one-half times an employee’s wage rate for any hours worked in excess of forty hours in a given workweek.  (Unlike some other states, Ohio does not mandate overtime pay for extra hours worked in a day; the protection only applies to the 40 hour workweek.)  The law exempts from its coverage, however, any employee that is also exempted from the overtime provisions of the federal Fair Labor Standards Act, at 29 U.S.C. §207 and §213.  Buried within these federal exemptions, at §213(b)(2), are employees “of an employer engaged in the operation of a rail carrier subject to part A of subtitle IV of Title 49,” which includes almost all major railroads in the United States.  The analysis in Ohio, and any other states that adopt the FLSA exemptions, is therefore easy — railroad workers are specifically exempt from protection, meaning they have no statutory right to be paid more than their hourly rate for hours in excess of 40 in a week.

Some other states have previously tried to pass laws protecting railroad workers’ rights to receive overtime pay.  These attempts have also been unsuccessful.  In R.J. Corman Railroad Co. v. Palmore (6th Cir. 1993), 999 F.2d 149, for example, the railroad challenged a Kentucky state overtime law that did not exempt workers in the railroad industry.  The railroad argued that the issue of wages and hours in the rail industry is covered by federal law, and states cannot impose their own rules.  Kentucky argued that since there is no federal rail law the expressly addressed overtime either by providing for or forbidding it, there is no conflict with its regulation.  The court adopted the railroad’s position, and held that the Kentucky law, as applied to railroad workers, was preempted by federal law.  Although there was no federal statute that directly conflicted with the state regulation, the court concluded “that the congressional purpose behind the Adamson Act [establishing a basic 8 hour workday in the rail industry] and Congress’s longstanding decision to regulate railroads on a national level make it reasonable to infer that Congress has impliedly preempted the area of overtime regulation for railroad employees.” Id. at 154.  The Kentucky overtime law, like Ohio’s, did not apply to workers in the rail industry.

Like other issues dealing with wages and hours, the only remedy available for a railroad worker who is not paid overtime is the grievance procedure set forth in the Railway Labor Act.  Although the law does not require payment of overtime, collective bargaining agreements in the industry certainly do.

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Weingarten Rights do not apply to railroad employees

by on October 10, 2011 in Rail Law Blog

Employees covered by the National Labor Relations Act (NLRA) have a right to have a union representative or co-worker present during an investigatory interview with management when the employee reasonably believes that the interview might result in disciplinary action.  This is generally described as the employee’s “Weingarten Rights,” referring to a case decided by the Supreme Court where it was held that denial of a request to have a representative present during such an interview was an unfair labor practice. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).  Since railroad employees are covered by the Railway Labor Act, not the NLRA, do they have the same right to demand that a representative accompany them to an interview conducted by a management official?

Unfortunately, the answer is no.  The reason for the difference can be found in the text of the statutes.  Section 7 of the NLRA gives non-railroad employees the right “to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” 29 U.S.C. §157.  The Supreme Court held in Weingarten that the request for a representative during an interview with management is considered “concerted activit[y] for…mutual aid or protection.”  To put it simply, the right to have a union representative present while you are being interrogated by your supervisor protects not only you, but the entire group of people represented by the union.  The language quoted prohibits a company from interfering with that right.

The language of the Railway Labor Act is more limited, however.  Section 2, Fourth of the RLA provides that, “[e]mployees shall have the right to organize and bargain collectively through representatives of their own choosing…No [railroad], its officers or agents, shall deny or in any way question the right of its employees to join, organize, or assist in organizing the [union] of their choice, and it shall be unlawful for any [railroad] to interfere in any way with the organization of its employees…” 45 U.S.C. §152 Fourth.  Notably missing from this section is a phrase comparable to “other mutual aid or protection.”  The RLA’s focus is on protecting employees’ rights to select and form a union, and collectively bargain with the railroad through that union.  The right to have a representative present during an interview with management is not covered by those rights.

Although such a right is not legally protected, railroad employees should always show up at investigatory interviews with a union representative or co-employee.  A railroad official will be less likely to try to harass or intimidate if a witness is present, and he or she likely won’t know whether Weingarten rights apply or not.  If the railroad official insists on speaking to the employee alone, however, the employee should not be insubordinate or refuse to cooperate.  Get good advice before the interview occurs with your union representative, and if necessary, handle the interview alone.

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Presidential Emergency Board No. 243

by on October 7, 2011 in Rail Law Blog

A potential nationwide rail strike was halted yesterday by President Obama, who signed an Executive Order creating Presidential Emergency Board 243 (“PEB”) pursuant to the provisions of the Railway Labor Act (“RLA”).  The dispute involves 11 rail labor unions and the National Carriers’ Conference Committee, which represents CSX, Norfolk Southern, BNSF, Kansas City Southern, Soo Line, Union Pacific and other railroads.  The parties failed to reach agreement on a new collective bargaining agreement through negotiations and were permitted to go on strike or engage in a lock-out beginning October 7, 2011.  The President’s creation of a PEB prevents such action under the terms of the RLA.  President Obama appointed five members to the PEB – Ira F. Jaffe (Chair), Roberta Golick, Joshua M. Javits, Gil Vernon, and Arnold Zack.

Section 10  of the RLA allows the President to create a PEB when a dispute that has not been resolved by the parties “threaten[s] substantially to interrupt interstate commerce” to such a degree as to threaten “to deprive any section of the country of essential transportation service.”  The RLA provides that the PEB is to investigate the dispute and make a report to the President within 30 days after the PEB’s appointment.  During this 30 day period, the parties must not change the conditions of employment out of which the dispute arose (including no strike or lock-out).  The report created by the PEB is non-binding, and is meant to narrow the issues and allow the parties to reach a voluntary settlement.  However, if the parties fail to reach agreement, it is expected that Congress will step in and pass legislation imposing the terms of a new collective bargaining agreement.  This prospect is a crapshoot for both sides, so there is a great incentive for them to reach agreement.

In 2006, I attended a rail law seminar at which Joshua Javits (a member of PEB 243) presented a paper titled, “A Neutral’s Perspective on Presidential Emergency Boards.”  His presentation perhaps gives us a glimpse into what the parties should expect in the report of the PEB.  He wrote:

“Neutrals like to avoid legislating new terms of an agreement for the parties.  Neutrals are more comfortable providing guidance to the parties rather than imposing new terms on unwilling parties.  Therefore, emergency boards tend to use a light touch.  They recognize and encourage voluntary resolution through collective bargaining and defer to the parties’ power and interests…As Harry Rissetto, an eminent RLA practitioner, [said] the ‘mantra’ of the emergency board is, ‘If you can’t get it in bargaining, you won’t get it before an emergency board.’  Like doctors, the first principal of emergency board members is to ‘do no harm.’”

I wish the best of luck to all the brothers and sisters in rail labor involved in this dispute, and hope that a favorable resolution can be reached.  If the current Congress gets involved, I’m not so sure that it will use such a “light touch.”

 

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