- Nov 9, 2003
- 16,512
- 5,865
From a long law review about contract abrogation. The entire review is attached.
Jim
3. The Right to Strike Preserved
Section 2(First) does not prohibit strikes - it like the other provisions of the RLA, merely intends to prevent them by delaying them. Beyond the Second Circuit, no court has ever even suggested as much (and even that court noted that it was a case of first impression). The only decisions limiting the right to strike either involved bad faith, the status quo obligation, or simply limited the timing or manner of an otherwise valid strike. Thus, beyond Atlantic Coast, nothing in the Railway Labor Act or the resulting jurisprudence precludes employee strikes per se, particularly where employer’s right to self help is also retained (i.e., the Section 6 status quo obligations do not apply).
In fact, the right to strike has never even been challenged in the post-rejection context. For example, the Continental Airlines bankruptcy prompted an immediate strike after the company unilaterally implemented new terms of employment. While the Fifth Circuit did conclude that the strike might limit the amount of back pay available under claims for contract rejection, nowhere did the court (or even the employer) suggest that strike itself was prohibited. Similarly, the employees of Eastern Airlines initiated a strike soon after the employer unilaterally modified working conditions. That strike - which involved numerous allegations of violence and similar illegal conduct - was expressly described as legal. Indeed, the Court even refused to issue an injunction against the illegal strike activity, because it concluded that the Norris-LaGuardia Act prohibited such an injunction before the employer had made sufficient efforts to resolve the conflict voluntarily.
D. The Right to Strike and The Automatic Stay Provisions of the Bankruptcy Code
Thus, it is quite likely that, unless the employer is precluded from unilaterally implementing new terms of employment, the employees will have the right to strike under the RLA. For that reason, it is possible that a carrier would argue that the “automatic stay†provisions of Section 362 of the Bankruptcy Code apply to striking employees. To date, this argument has failed to convince the Courts of Appeals in the NLRA context - and absent a Section 2(First) prohibition, there is no reason to believe that the RLA context is any different.
E. Conclusion: The Right to Strike Preserved
When it enacted Section 1113, Congress relieved employers of their Section 6 responsibilities - it provided employers with a shortcut to unilateral implementation. While nothing explicit was directed towards the right to strike, it seems almost absurd to suggest that Congress intended to
(1) relieve employers of their responsibilities under an otherwise valid collective bargaining agreement,
(2) permit debtors to unilaterally implement terms of employment without first adhering to Section 2(First) and Section 6, while at the same time
(3) compelling employees to accept the employer’s proposals and
(4) prohibiting the peaceful exercise of their right to strike without resorting to the RLA procedures they were denied in the first place.
Jim
3. The Right to Strike Preserved
Section 2(First) does not prohibit strikes - it like the other provisions of the RLA, merely intends to prevent them by delaying them. Beyond the Second Circuit, no court has ever even suggested as much (and even that court noted that it was a case of first impression). The only decisions limiting the right to strike either involved bad faith, the status quo obligation, or simply limited the timing or manner of an otherwise valid strike. Thus, beyond Atlantic Coast, nothing in the Railway Labor Act or the resulting jurisprudence precludes employee strikes per se, particularly where employer’s right to self help is also retained (i.e., the Section 6 status quo obligations do not apply).
In fact, the right to strike has never even been challenged in the post-rejection context. For example, the Continental Airlines bankruptcy prompted an immediate strike after the company unilaterally implemented new terms of employment. While the Fifth Circuit did conclude that the strike might limit the amount of back pay available under claims for contract rejection, nowhere did the court (or even the employer) suggest that strike itself was prohibited. Similarly, the employees of Eastern Airlines initiated a strike soon after the employer unilaterally modified working conditions. That strike - which involved numerous allegations of violence and similar illegal conduct - was expressly described as legal. Indeed, the Court even refused to issue an injunction against the illegal strike activity, because it concluded that the Norris-LaGuardia Act prohibited such an injunction before the employer had made sufficient efforts to resolve the conflict voluntarily.
D. The Right to Strike and The Automatic Stay Provisions of the Bankruptcy Code
Thus, it is quite likely that, unless the employer is precluded from unilaterally implementing new terms of employment, the employees will have the right to strike under the RLA. For that reason, it is possible that a carrier would argue that the “automatic stay†provisions of Section 362 of the Bankruptcy Code apply to striking employees. To date, this argument has failed to convince the Courts of Appeals in the NLRA context - and absent a Section 2(First) prohibition, there is no reason to believe that the RLA context is any different.
E. Conclusion: The Right to Strike Preserved
When it enacted Section 1113, Congress relieved employers of their Section 6 responsibilities - it provided employers with a shortcut to unilateral implementation. While nothing explicit was directed towards the right to strike, it seems almost absurd to suggest that Congress intended to
(1) relieve employers of their responsibilities under an otherwise valid collective bargaining agreement,
(2) permit debtors to unilaterally implement terms of employment without first adhering to Section 2(First) and Section 6, while at the same time
(3) compelling employees to accept the employer’s proposals and
(4) prohibiting the peaceful exercise of their right to strike without resorting to the RLA procedures they were denied in the first place.
ot a career anymore. Time to move on!!!
