II

107TH CONGRESS

1ST SESSION S. 1327

To amend title 49, United States Code, to provide emergency Secretarial

authority to resolve airline labor disputes.

IN THE SENATE OF THE UNITED STATES

AUGUST 2, 2001

Mr. MCCAIN (for himself, Mr. LOTT, and Mr. BURNS) introduced the following bill; which was read twice and referred to the Committee on

Health, Education, Labor, and Pensions

A BILL

To amend title 49, United States Code, to provide emergency

Secretarial authority to resolve airline labor disputes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Airline Labor Dispute

5 Resolution Act’’.

6 SEC. 2. GRANT OF AUTHORITY.

7 Section 42112 of title 49, United States Code, is

8 amended by adding at the end the following:

9 ‘‘(e) EMERGENCY AUTHORITY OF THE SEC10 RETARY.—
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1 ‘‘(1) DECLARATION OF EMERGENCY.—Notwith2 standing any other provision of this section or of

3 section 40109(d) of this title, the Secretary shall de4 clare an air transportation emergency whenever the

5 Secretary finds that a labor dispute between an air

6 carrier that provides service to a hub airport (as de7 fined in section 41731(a)(3)) and an employee orga8 nization representing employees of that carrier—

9 ‘‘(A) threatens to interrupt the carriage of

10 passengers or cargo in interstate air transpor11 tation by an air carrier in any region of the

12 country in a manner that is likely to curtail op13 erations significantly at any hub airport (as de14 fined in section 41731(a)(3)) and thereby cause

15 injury to the economy of that region;

16 ‘‘(B) threatens to interrupt the carriage of

17 passengers or cargo in foreign air transpor18 tation in a manner that is likely to cause injury

19 to the foreign commerce of the United States or

20 its balance of payments; or

21 ‘‘(C) threatens the national security or for22 eign policy interests of the United States.

23 ‘‘(2) ACTION BY SECRETARY.—Notwithstanding

24 any other provision of law or procedure established

25 thereby, the Secretary shall issue an order to resolve
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1 a labor dispute by arbitration whenever the Sec2 retary declares an air transportation emergency with

3 respect to a labor dispute under paragraph (1). The

4 Secretary shall thereupon appoint a panel of arbitra5 tors, composed of 5 members, 1 designated by each

6 party to the dispute, and 3 neutral arbitrators to be

7 designated by agreement between the 2 other mem8 bers. If those 2 members are unable to agree on the

9 neutral arbitrators within 5 days after their designa10 tion, the Secretary shall ask the American Arbitra11 tion Association to submit within 3 days a list of 11

12 arbitrators who are members of the National Acad13 emy of Arbitrators and are qualified and willing to

14 serve. At a special meeting called by the Secretary,

15 each member designated by a party shall alternately

16 strike a name from the list until 3 names remain,

17 who shall be the mutually designated neutral arbi18 trators. No member shall be pecuniarily or otherwise

19 interested in any organization of employees or any

20 air carrier. The compensation and expenses of the

21 panel members shall be fixed by the Secretary and

22 shall be borne equally by each party to the dispute.

23 A panel shall be created separately for each declared

24 transportation emergency, and it shall investigate

25 promptly the facts as to the dispute.
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1 ‘‘(3) REQUIRED FILINGS.—Within 10 days

2 after the date on which the 3 neutral arbitrators are

3 appointed, each party to the dispute shall file with

4 the panel a document containing the following:

5 ‘‘(A) The name, affiliation, and address of

6 the party submitting the filing.

7 ‘‘(B) A statement that the employee orga8 nization involved is either certified or recog9 nized.

10 ‘‘(C) The number of employees in the ne11 gotiating unit, together with a list of the job ti12 tles represented in that unit.

13 ‘‘(D) A statement of the currently applica14 ble rates of pay, rules, and working conditions.

15 ‘‘(E) A clear and concise history of nego16 tiations leading to the impasse, including the

17 number and dates of the negotiation sessions.

18 ‘‘(F) A list of all issues in dispute con19 cerning changes in rates of pay, rules, and

20 working conditions not adjusted by the parties

21 in conference, and the party’s position on those

22 issues.

23 ‘‘(G) The complete, written terms of the

24 party’s final offer on those issues, including the

25 text of the party’s proposed agreement on the
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1 changes in rates of pay, rules, and working con2 ditions.

3 ‘‘(H) A clear and concise statement of any

4 other relevant facts and any supporting docu5 mentation.

6 ‘‘(4) OPPORTUNITY FOR PRESENTATIONS.—

7 Within 15 days after the date on which the docu8 ment required by paragraph (3) is filed by both par9 ties, the panel shall afford each party an opportunity

10 to make oral and written presentations on its filing

11 and to respond to questions.

12 ‘‘(5) SELECTION BY PANEL; APPLICABLE FAC13 TORS.—Within 30 days after date on which the doc14 ument required by paragraph (3) is filed by both

15 parties, the panel shall, by a majority vote, select ei16 ther the offer in its entirety concerning rates of pay,

17 rules, and working conditions presented by the car18 rier or carriers involved or the offer in its entirety

19 concerning rates of pay, rules, and working condi20 tions presented by the employee organization in21 volved. The panel shall prepare a written explanation

22 of its selection and the reasons for the selection, and

23 shall furnish a certified copy of its selection to the

24 parties to the dispute and to the Secretary. The
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1 panel shall make its selection based on the following

2 factors:

3 ‘‘(A) The stipulations of the parties.

4 ‘‘(B) The financial condition of the air car5 rier and its ability to incur changes in labor

6 costs while continuing to maintain its competi7 tive market position, pay its debts, meet its

8 other contractual obligations, provide job secu9 rity and equivalent treatment for all of its em10 ployees, and return a reasonable profit, con11 sistent with historic margins and rates of re12 turn, for its shareholders.

13 ‘‘(C) A comparison of the rates of pay of

14 the employees involved in the dispute with the

15 rates of pay of other employees performing

16 similar services for comparable air carriers of17 fering similar air transportation services to

18 public.

19 ‘‘(D) The rules and working conditions ap20 plied by the air carrier and comparable air car21 riers offering similar air transportation services

22 to the public in light of market conditions for

23 those services.

24 ‘‘(E) Such other factors as are normally

25 and traditionally taken into consideration in the
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1 determination of rates of pay, rules, and work2 ing conditions through collective bargaining,

3 mediation, fact-finding, arbitration or otherwise

4 between the parties.

5 ‘‘(F) Changes in the average consumer

6 prices for goods and services, commonly known

7 as the cost of living, including changes in the

8 Consumer Price Index.

9 ‘‘(G) The existing collective bargaining

10 agreement between the parties and the history

11 of the collective bargaining agreements between

12 the parties, including the history of negotiations

13 leading to the impasse.

14 ‘‘(6) SELECTION BY PANEL.—Within 10 days

15 after the panel furnishes its selection to the Sec16 retary, either party may file with the Secretary a pe17 tition to set aside the selection on the grounds set

18 forth in paragraph (7). If no petition to set aside the

19 selection has been filed within 10 days after the fil20 ing of the selection, the Secretary shall enter an

21 order directing the parties to give effect to the pan22 el’s selection, which order shall be final and conclu23 sive on the parties.

24 ‘‘(7) PETITION TO SET ASIDE SELECTION.—
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1 ‘‘(A) IN GENERAL.—The Secretary may

2 entertain a petition to set aside a selection fur3 nished to the Secretary under paragraph (6) of

4 this subsection only if the Secretary finds

5 that—

6 ‘‘(i) the selection by the panel does

7 not conform, or confine itself, to the re8 quirements of this section;

9 ‘‘(ii) the selection by the panel does

10 not conform, or confine itself, to matters

11 concerning rates of pay, rules, and working

12 conditions;

13 ‘‘(iii) the selection by the panel does

14 not conform, or confine itself, to matters

15 within the scope of jurisdiction under title

16 II of the Railway Labor Act (45 U.S.C.

17 181 et seq.);

18 ‘‘(iv) the selection by the panel does

19 not conform, or confine itself, to the offer

20 in its entirety concerning rates of pay,

21 rules, and working conditions presented by

22 one of the parties to the dispute; or

23 ‘‘(v) a party to the dispute or a mem24 ber of the panel practiced fraud or corrup25 tion which affected the selection.
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1 ‘‘(B) REMEDY FOR UNCERTAINTY.—The

2 Secretary may not entertain any such petition

3 on the ground that the selection is invalid for

4 uncertainty. If either party to the dispute seeks

5 to set aside the selection on that ground, it

6 shall submit the dispute to a board of adjust7 ment as provided in sections 204 and 205 of

8 title II of the Railway Labor Act (45 U.S.C.

9 184 and 185).

10 ‘‘(C) MINOR ERROR.—A selection by the

11 panel under paragraph (6) may not be set aside

12 for trivial irregularity or clerical error affecting

13 only a matter of form and not the substance of

14 the selection.

15 ‘‘(8) ACTION BY SECRETARY.—

16 ‘‘(A) DEADLINE.—The Secretary shall

17 issue a final order either granting or denying

18 the petition to set aside the panel’s selection

19 within 10 days after the petition is filed.

20 ‘‘(B) WHOLE OR PARTIAL INVALIDITY.—

21 Except as provided in subparagraph (C), if the

22 Secretary determines that the selection is in23 valid in whole or in part under paragraph

24 (7)(A), the Secretary shall set aside the selec-
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1 tion and remand it to the panel for further ac2 tion.

3 ‘‘(C) SPLIT DECISION.—If the Secretary

4 determines that—

5 ‘‘(i) only a part of the selection is in6 valid under paragraph (7)(A),

7 ‘‘(ii) the valid and invalid parts of the

8 selection are separable, and

9 ‘‘(iii) the parties agree to a setting

10 aside only of the part determined to be in11 valid,

12 then the Secretary shall set aside the invalid part,

13 enter an order requiring the parties to give effect to

14 the valid part, and remand the invalid part for fur15 ther action by the panel consistent with the Sec16 retary’s order.

17 ‘‘(9) JUDICIAL REVIEW.—At the request of ei18 ther party to the dispute, a final order of the Sec19 retary under this subsection is subject to review by

20 the court of appeals under section 46110 of this

21 title. For the purpose of applying that section to a

22 petition for review of an order by the Secretary

23 under this section, the terms ‘10 days’ and ‘10th

24 day’ shall be substituted for ‘60 days’ and ‘60th day’

25 in section 46110(a). Any such petition shall stay the
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1 effectiveness of the Secretary’s final order, which

2 shall otherwise become effective on the 10th day

3 after the date it is issued.

4 ‘‘(10) STATUS QUO REQUIREMENT; INJUNCTIVE

5 RELIEF.—Upon the issuance of an order to resolve

6 a labor dispute under this subsection and until the

7 Secretary’s final order becomes effective, no change,

8 except by agreement, shall be made by either party

9 to the dispute in the rates of pay, rules, or working

10 conditions out of which the dispute arose. Changes

11 thereafter shall only be made consistent with the

12 terms of the Secretary’s final order. A court of com13 petent jurisdiction shall enjoin any effort by a party

14 to make unilateral changes before the Secretary’s

15 final order becomes effective at the request of the

16 other party to the dispute.

17 ‘‘(11) RATES OF PAY DEFINED.—In this sub18 section, the term ‘rates of pay’ includes wages, vaca19 tion, holidays, and excused time, insurance and de20 fined pension or contribution plans, profitsharing

21 plans, medical and hospitalization benefits, the con22 tinuity and stability of employment, and all other

23 consideration and benefits of any nature, paid or re24 ceived.’’.

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