Sarah Aitchison, February 9, 2015, Puget Sound Business Journal
When West Coast ports partially shut down over the weekend, it seemed like a game changer because finally, with an industry halted, the government could forcefully get involved.
The Pacific Maritime Association had essentially locked out the International Longshore and Warehouse Union for the weekend, stopping the loading and unloading of vessels at 29 West Coast ports. And some frustrated business owners and trade associations were waiting for just this moment so President Obama could invoke the Taft-Hartley Act of 1947, force the two parties back to work and put the negotiations under court and public scrutiny.
So why didn’t President Obama swoop in with his executive action?
Turns out, there are many reasons.
The PMA shut down port activity during the weekend. Union members aren’t obligated to work over the weekend, so technically it’s not locking anyone out of their work, said Mike Harrington, an attorney with Lane Powell.
But, it’s also a political issue.
“My opinion is that [President Obama] would not be interested in upsetting the labor unions,” Harrington said. “To some degree [Taft-Hartley] eliminates the labor union’s ability to use the only tool it really has, which is a strike.”
The last two times the Taft-Hartley Act was invoked it was by a Republican president. George W. Bush did it in 2002, when West Coast ports shut down after the ILWU was locked out (sound familiar?) and Richard Nixon invoked it to stop a longshoreman strike in 1971.
The PMA and ILWU have been renegotiating an expired contract since July 1. On Oct. 31, the PMA began publicly accusing the ILWU of intentionally slowing down work. The ILWU claims it is major changes in the industry that is forcing the ports to operate slower.
A slowdown can be legally interpreted as a quasi-strike, which would mean that Taft-Hartley could be used. But, the union has been very careful not to take any responsibility for slowdowns at any of the ports.
After months of slow ports and pressure from businesses, trade organizations and elected officials, the ILWU and PMA jointly requested the help of a federal mediator to resolve the contract.
At the beginning of February, the PMA announced it had offered its best offer to the ILWU, and that if the ILWU didn’t take it, they would be responsible for the imminent shutdown.
Later that week, the PMA said it would close vessel loading and unloading operations at the ports over the weekend. Operations at West Coast ports resumed on Monday morning.
The Taft-Hartley process
Here’s a primer on how the Taft-Harley Act process works.
President Obama decides to invoke the Taft Hartley Act because of a threatened or actual strike or lockout in a substantial part of an industry that operates across internationally or across multiple states.
Obama appoints a Board of Inquiry, which has a chair and other members, likely at least three members so there are no ties when voting.
Board of Inquiry conducts hearings, in public or in private. The board determines the facts, cause and circumstances of labor dispute. Board has power of discovery, which means they can compel documents and witnesses.
Board of Inquiry issues a report to the president.
After examining the report, Obama decides whether it is necessary to go to the courts. If he does, directs Attorney General Eric Holder to come into a federal district court that has jurisdiction over the conflict (for example, if Holder were to come to Seattle, he would operate in the Western District of Washington).
Attorney General would request injunction ordering an end to the strike or lockout.
A district judge must grant the injunction. If that happens, it would make it illegal for either party to participate in a quasi- or full lockout or strike. That’s quasi part is important, because an attorney could argue that a slowdown counts.
The parties include a representative from the Federal Mediation and Conciliation Services, which they already have, and have to make every effort to settle the agreement and go back to the table to negotiate.
If 60 days go by and the PMA and ILWU haven’t resolved the contract, the Board of Inquiry goes back to Obama and provides him with a document laying open the negotiations and the last proposal offered. That becomes a public document.
Within 15 days of that report being released, the National Labor Relations Board takes a secret vote of every employee, measuring whether each employee would take the final offer.