Joseph Bonney, June 5, 2015, JOC.com
A bill introduced in Congress on Friday would empower the president to intervene to halt port labor slowdowns as well as strikes, and would allow state governors to initiate the process for federal back-to-work injunctions.
Sen. Cory Gardner, R-Colo. and Senator Lamar Alexander, R-Tenn., sponsored the Protecting Orderly and Responsible Transit of Shipments (PORTS) Act (S.1519) in reaction to labor slowdowns that paralyzed West Coast ports during longshore contract negotiations in late 2014 and early 2015.
“Labor union bosses should not be allowed to hold the economy hostage, nor should they be allowed to use the livelihoods and jobs of millions of Americans as bargaining chips,” Gardner said in a statement.
Though Gardner’s bill is considered a long shot for passage, it’s a sign of lingering anger at the International Longshore and Warehouse Union for its role in West Coast gridlock that affected supply chains nationwide and helped hold first-quarter GDP growth to an anemic 0.2 percent. The bill is backed by dozens of business groups, including the U.S. Chamber of Commerce, the National Retail Federation, the Retail Industry Leaders Association, the National Association of Manufacturers and the Agriculture Transportation Coalition
Sen. John Thune, R-S.D., last month introduced legislation, which Gardner has co-sponsored, to direct the Transportation Department to provide Congress with annual statistics on port productivity. There have also been calls to place longshore unions under the Railway Labor Act, which covers the rail and airline industries.
President Obama was criticized by business groups for not invoking the Taft-Hartley Act and launching its multi-step process for a back-to-work injunction to halt strikes or lockouts. Though the ILWU did not call a strike, its slowed productivity was criticized as tantamount to one.
Gardner’s bill would expand Taft-Hartley to specifically cover slowdowns as well as strikes and lockouts. It also would allow governors of port states to direct their attorney general to use the act seek a federal court injunction against slowdowns, strikes or lockouts.
“This legislation will empower state governors to take steps to resolve port labor disputes and avoid economic disaster if the president is unwilling to act,” Alexander said in a statement.
The bill would allow a governor to request a board of inquiry, starting the process for a Taft-Hartley injunction. If the president did not act to start that process within 10 days, the governor could unilaterally appoint a board to start the process.
In a statement accompanying his legislation, Gardner said this provision “allows those most affected by the disruptions (local community leaders and constituent business, employers, and consumers) to apply pressure on their governors, rather than trying to mobilize a national campaign to convince the president to act.”
He said the expansion of the Taft-Hartley Act “builds upon a well-known statutory process informed by 70 years of federal case law and first-hand experience that apply specifically to port owners and unions.”
David French, vice president, government relations at the NRF, said the bill’s introduction was “a welcome sign that Congress is serious about reforming the process and dedicated to the future viability of U.S. ports.”
Michael H. LeRoy, labor law professor at the University of Illinois, said the proposed legislation is an understandable response to West Coast port strife, but appears to be merely “playing to a constituency.”
“I don’t think these are realistic proposals, either in terms of the political dimensions or the structure of the National Labor Relations Act,” he told JOC.com. “Any kind of tinkering with the law is just going to involve a lot of chasing one’s tail over and over. It’s just not realistic.”
Barring the election of a Republican president and overwhelming GOP majorities in Congress, there’s little chance lawmakers will vote to enact such a “radical” change to labor law, LeRoy said.
Giving governors a role in seeking federal Taft-Hartley injunctions would be in line with a Republican trend toward delegating to states more authority over labor law, but would be a “radical innovation,” he said.
And there’s no guarantee this would change would work as envisioned. As one terminal executive pointed out to JOC.com, current governors in all three West Coast states are Democrats who presumably would be more resistant to business pressure to rein in the ILWU.
Another question would be how to define a slowdown. Gardner’s bill doesn’t provide a definition, and the terminal executive noted that longshore unions have numerous ways of slowing operations. They could stall operations at one terminal’s yard on Monday, another terminal’s vessel work on Tuesday, and a third terminal’s gates on Wednesday, and the job actions would have ended by the time the case lands in court.
LeRoy also said the bill would produce continual arguments over what constitutes a slowdown. “I don’t think many federal judges are going to want to go down to the docks to tell the guys to speed it up,” LeRoy said.
A more logical alternative to amending Taft-Hartley might be to put port union-employer relations under the Railway Labor Act, he said. The RLA has an extensive mediation and arbitration process that limits strikes in essential transportation services.
Such a change would not be a panacea, but would provide a neater legal solution and would be less difficult to enact, LeRoy said. “It would fit within the structure of existing laws,” he said. “A proposal that is more consistent with existing law would be easier to achieve than creating something from whole cloth.”
No legislation has been introduced to put unionized port labor under the RLA. NRF spokesman Stephen Schatz told JOC.com that talk of such an action “is more an attempt to galvanize attention rather than a feasible legislative option.”