Presidential Authority to Extend Deadline for Submission of an

Emergency Board Report Under the Railway Labor Act

T h e P resid e n t m ay require an E m erg en cy B oard u n d er th e R ailw ay L a b o r A c t to s u b m it its 

re p o rt b e fo re the statu to ry dead lin e, b u t he m ay n o t extend th at th irty -d ay d e ad lin e u n le ss the 

p a rtie s in v o lv ed have entered into a sid e ag reem en t e x ten d in g the status q u o p e rio d d u rin g 

w h ic h they refrain from self-help.

T h e re is su b sta n tia l d o u b t as to w h eth er a co u rt w o u ld c o n clu d e th at such a sid e a g re e m e n t 

b etw een th e parties not to resort to self-h elp is equitably en fo rc e ab le u n d e r the N o rrisL a G u a rd ia A ct.

T h e P resid e n t d o e s not h ave the authority to im pose a second statu s qu o p erio d by c o n v en in g a 

sec o n d E m erg en cy B oard o r re c onvening the o rig in al B oard.

March 13, 1990

M e m o r a n d u m O p i n i o n f o r

t h e A s s o c i a t e C o u n s e l t o t h e P r e s i d e n t

This memorandum responds to your request for our views as to the extent 

of the President’s power to alter the length of the thirty-day time period 

within which an Emergency Board appointed under section 10 of the Railway Labor Act (“RLA”), 45 U.S.C. § 160, must submit its report to the 

President. As explained more fully below, we conclude that, because the 

filing of the report has specific legal consequences, the President does not 

have the authority to unilaterally extend the statutory deadline. He may, 

however, shorten the time for filing a report. We also conclude that the 

President may grant an extension in situations where the parties involved 

have agreed to extend the period during which they will refrain from selfhelp. Given the lack of case authority, however, it is difficult to determine 

whether a court would equitably enforce such an agreement. In our view, 

there is no more than an even chance that a court would conclude that such 

agreements are equitably enforceable despite the Norris-LaGuardia Act, and 

there remains a substantial litigation risk that a court would reach a contrary 

conclusion. Finally, we conclude that the President does not have the authority

57
to impose a new status quo period creating a second Emergency Board.

L lackgrounnidl

We understand that under National Mediation Board (“NMB”) auspices, 

the National Railway Labor Conference and seven of the affected railway 

labor organizations (collectively “the parties”)1 have agreed to an extended 

two-phase Emergency Board procedure for addressing all of the unresolved 

issues in the current round of national bargaining. Under the contemplated 

procedure, the National Mediation Board would proffer arbitration to the 

parties on all of the outstanding issues, and the parties would decline the 

proffer, thus triggering a thirty-day “cooling-off’ period. See 45 U.S.C. § 

155 First.

The NMB would then promptly recommend that the President appoint an 

Emergency Board under section 10 of the RLA, 45 U.S.C.§ 160. Although 

the Emergency Board would be established to address all issues involved in 

the collective bargaining dispute, it would produce two separate reports, 

with the first addressing the health and welfare issues and the final report 

addressing the wages and rules issues. As soon as the health and welfare 

report was issued, the NMB would, at the request of the parties, engage in 

further intensive emergency mediation on the wages and rules issues. In 

order to allow the Emergency Board sufficient time to prepare its reports, 

the parties have agreed to an extension of the deadline for submission of the 

Emergency Board’s final report to the President. Specifically, the parties 

have requested that all reports and recommendations of the Emergency Board 

be issued by September 15, 1990, and the parties have agreed to any reasonable request for an extension of time of the Emergency Board to allow 

ample time for hearings, mediation and formulation of recommendations. 

The parties have also agreed not to resort to self-help until after the expiration of the thirty-day RLA statutory ‘cooling-off’ period following the report 

by the Emergency Board on the Wage and Rules issues, and then only if 

Congress is in session.

We understand that this proposal is only one of several under consideration. Accordingly, this memorandum discusses general principles concerning 

the limits on altering the RLA procedures, rather than analyzing the particulars of any specific proposal.

EL Discussions

Section 10 of the Railway Labor Act provides that, once created, an Emer­

' W e are inform ed by the NM B that there are other labor organizations that have yet to agree to this 

procedure.

58
gency Board “shall investigate promptly the facts as to the dispute and make 

a report thereon to the President within thirty days from the date of its 

creation.” 45 U.S.C. § 160. Section 10 further provides that “[a]fter the 

creation of such board and for thirty days after such board has made its 

report to the President, no change, except by agreement, shall be made by 

the parties to the controversy in the conditions out of which the dispute 

arose.” Id. Thus, on its face the statute appears to contemplate a status quo 

period of no more than sixty days after creation of an Emergency Board.

A. President’s power to alter deadline fo r submitting report

1. President may not unilaterally extend deadline

We believe that the President may not unilaterally extend the deadline for 

submission of the Emergency Board report. First, the language of the statute does not provide for any extension in the thirty-day time period within 

which the Emergency Board must submit its report. Moreover, the legislative history indicates a fairly clear intent not to permit extensions of the 

reporting deadline and the subsequent start of the thirty-day cooling-off period. Indeed, Congress, in enacting the RLA, specifically rejected an 

amendment that would have authorized unilateral presidential extensions of 

the reporting deadline.

In the House hearings on the bill, Congressman Burtness questioned representatives of both labor and management about the adequacy of the 

thirty-day time period. Mr. Richberg, the counsel for the organized railway 

employees, stated that thirty days would be adequate, that the Emergency 

Board provision had been the subject of very difficult negotiation, and that 

because of the status quo provision, the parties did not want an Emergency 

Board that would “operate indefinitely after a controversy has gone to this 

stage.” Railroad Labor Disputes: Hearings on H.R. 7180 Before the House

Comm, on Interstate and Foreign Commerce, 69th Cong., 1st Sess. 100 (1926) 

(“House Hearings").2 Mr. Thom, the General Counsel of the Association of 

Railway Executives, testified to the same effect, explaining that the thirtyday period was the result of a compromise between labor and management, 

that this was a significant concession, and that the parties involved did not 

want “anything but a prompt method of dealing with the situation in the case 

of an emergency board.” Id. at 128.

Apparently not satisfied with these responses, Congressman Burtness offered an amendment on the floor of the House that would have provided that 

“the President may in his discretion extend such time in which the report is

2 T he Suprem e C ourt has repeatedly noted that, because the RLA w as frankly acknow ledged to be “an 

agreem ent w orked out betw een m anagem ent and labor, and ratified by the C ongress and the President," 

the “statem ents o f the spokesm en for the tw o parties m ade in the hearings on the proposed A ct are 

entitled to great w eight in the construction o f the Act.” Chicago & N.W. Ry. v. United Transp. Union,

402 U S 5 7 0 ,5 7 6 (1971).

59
to be made an additional period of not to exceed thirty days.” Staff of 

Subcomm. on Labor, Senate Comm, on Labor and Pub. Welfare, 93d Cong., 

2d Sess., Legislative History o f the Railway Labor Act, As Amended 453 

(Comm. Print 1974) (reprinting congressional debates). Congressman 

Burtness argued that thirty days would often not be sufficient time and that 

there would be no danger in allowing the President to have this discretion to 

extend the deadlines. Id. The amendment was rejected with little debate. Id.

We recognize that it might be argued that an extension is permissible 

because the thirty-day period is meant merely to be directory rather than 

mandatory. Cf. United States v. Air Florida, Inc., 534 F. Supp. 17, 20 (S.D. 

Fla. 1982) (thirty-day time period in which NMB, under section 2 Ninth of 

the RLA, must certify conclusions of representational dispute, was “directory rather than mandatory;” accordingly, failure of NMB to meet deadline 

did not invalidate its investigation and subpoena request); see also System

F ed’n No. 40, Ry. Employees D ep’t v. Virginian Ry., 11 F. Supp. 621, 627 

(E.D. Va. 1935), a ff’d , 84 F.2d 641 (4th Cir. 1936), aff'd, 300 U.S. 515 

(1937). In light of the legislative history of the provision, however, it would 

be difficult to conclude that the thirty-day statutory deadline was merely 

meant to be directory, rather than mandatory. Indeed, were the deadline 

read to be merely directory, the President could unilaterally extend the reporting date, thus effectively extending the status quo period. An Emergency 

Board would be able to achieve the same result simply by delaying the 

submission of its report. Either of these conclusions would directly contradict the intent of the RLA drafters as expressed in the legislative history.

Our conclusion is not altered by the general rule of construction that a 

“statutory time period is not mandatory unless it both expressly requires an 

agency or public official to act within a particular time period and specifies 

a consequence for failure to comply with the provision.” Thomas v. Barry,

729 F.2d 1469, 1470 n.5 (D.C. Cir. 1984) (quoting Fort Worth N at’l Corp. v. 

FSLIC, 469 F.2d 47, 58 (5th Cir. 1972)); see also St. Regis Mohawk Tribe v. 

Brock, 769 F.2d 37, 41 (2d Cir. 1985) (collecting cases), cert, denied, 476 

U.S. 1140 (1986); Usery v. Whitin Machine Works, Inc., 554 F.2d 498, 501 

(1st Cir. 1977). The statutory time table at issue defines a narrow exception 

to the parties’ rights to use self-help. .General rules of construction cannot 

be used to defeat these specific restrictions and create a unilateral, discretionary ability to derogate from these rights. Furthermore, we question 

whether this general rule of construction could be applied to contradict “clear 

indications of congressional intent that the limitations are to be strictly enforced.” Usery, 554 F.2d at 501.

In any event courts would likely hold that application of this rule indicates that the deadline in section 10 is mandatory. Section 10 expressly 

requires the Emergency Board to submit its report “within thirty days from 

the date of its creation.” 45 U.S.C. § 160. Moreover, although on its face 

the RLA does not specify the consequences of the late filing of an Emergency Board report, it seems clear from the above discussion of the legislative

60
history that the RLA effectively penalizes late reports by failing to toll the 

start of the statutory cooling-off period, thus refusing to extend the status 

quo period beyond sixty days.

Finally, as discussed more fully below, we believe that courts would likely 

give significant weight to any construction of the Act that was supported by 

long-established administrative practice. In this regard, we are not aware of 

any instance in the sixty-four years of practice under the RLA where the 

President unilaterally extended the time for report over the objection of the 

parties.3 The information supplied to us by the NMB indicates that extensions have generally been made only upon the request of the parties, who 

generally made a separate side agreement extending the status quo.

Accordingly, we conclude that the thirty-day deadline for the submission 

of the report is mandatory, and that it may not be extended by the President 

or by an Emergency Board.

2. President’s power to shorten deadline

An Emergency Board is appointed by the President and is within the 

executive branch. Nothing in the language of the statute even purports to 

limit the President’s constitutional authority to supervise the board. Indeed, 

the legislative history of the Act appears to contemplate that the board would 

function at the direction and control of the President.4 Accordingly, we 

believe that the President may alter the deadline within which an Emergency 

Board must submit its report, so long as the new deadline is within the 

statutory thirty-day time period. The President may therefore require the 

board to submit its report in less than thirty days.

B. Extension o f report deadline with the consent o f the parties

We note that research by the NMB staff indicates that at least fifty Emergency Boards created since 1960 have submitted their reports more than 

thirty days after their creation. With apparently few exceptions5, these extensions were the result of requests by the parties or the board that an 

extension be granted by the President, accompanied by an agreement by the 

parties to abide by an extended status quo period (usually until thirty days

3 The NM B has inform ed us that Em ergency B oard No. 209 subm itted its report four days late w ithout 

obtaining the consent o f the parties. We are not aware, how ever, w hether the Em ergency B oard o b ­

tained a form al presidential extension, or sim ply subm itted its report just a few days late.

4 In this regard, w e note that the legislative history places considerable em phasis on the fact that an 

Em ergency B oard is a presidential board. See, e.g.. S taff o f Subcom m . on Labor, Senate Com m , on 

L abor and Pub. W elfare, 93d C ong., 2d Sess., Legislative History o f the Railway Labor Act, As Amended

294 (C om m . Print 1974) (reprinting congressional debates) (statem ent o f Rep. N ew ton) (stating that 

parties would cooperate with an Em ergency Board because "[n]either party w ould defy the President o f 

the U nited States” ); id. at 229 (statem ent of Rep. C ooper) (Em ergency B oard is backed by “the pow er 

and prestige o f the President").

’ The N M B has indicated that Em ergency B oard N o 209 subm itted its report four days late w ithout any 

agreem ent by the parties to abide by an extension. See note 3 supra.

61
after the late report is submitted). The Department of Labor has informed 

us that the total number of such extensions since the enactment of the RLA 

is more than seventy. The Labor Department also reports that, up to the 

present time, no party has ever reneged on a side agreement to forbear from 

self-help. Of course, as noted below, this perfect track record means that the 

legally binding character of these extensions has never been subject to litigation.

1. Legality o f an extension granted with parties' consent

We believe that, despite our earlier conclusions concerning unilateral extensions, several arguments can be made that an extension granted with the 

consent of the parties would not violate section 10 of the RLA. First, and 

most importantly, the granting of extensions when the parties have agreed to 

extend the status quo period is supported by a long and consistent administrative practice under the Act. This practice would presumably be entitled to 

considerable weight in the construction of the statute. See, e.g.. Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 

(1984) (noting that the Court has “long recognized that considerable weight 

should be accorded to an executive department’s construction of a statutory 

scheme it is entrusted to administer”); see also North Haven Bd. o f Educ. v. 

Bell, 456 U.S. 512, 535 (1982) (“Where ‘an agency’s statutory construction 

has been fully brought to the attention of the public and the Congress, and 

the latter has not sought to alter that interpretation although it has amended 

the statute in other respects, then presumably the legislative intent has been 

correctly discerned.’”) (quoting United States v. Rutherford, 442 U.S. 544, 

554 n.10 (1979)).6 Indeed, this office, in an earlier opinion approving the 

use of extensions with the consent of the parties, placed considerable weight 

on this past practice, noting that “this is a point upon which ‘a page of 

history is worth a volume o f logic.’” Memorandum for Laurence H. 

Silberman, Deputy Attorney General, from Robert G. Dixon, Jr., Assistant 

Attorney General, Office of Legal Counsel, Re: President's Power to Extent

[sic] in which Emergency Board Under Railway Labor Act Must Submit its

Report at 2 (June 19, 1974) (quoting New York Trust Co. v. Eisner, 256 U.S. 

345, 349 (1921)).

Second, we note that the existence of an enforceable7 side-agreement 

between the parties extending the status quo period would have the effect of 

removing all consequences of late submission of the report. By binding the 

parties to refrain from the use of self-help until after a specified period, the 

side agreement renders the running of the statutory clock irrelevant. There

‘ G iven the frequency o f the practice, an d C ongress’ occasional statutory intervention into the resolud o n o f p a rticu lar disputes, it cannot seriously be doubted that C ongress has been fully aware o f the use 

o f extensions. We are not aw are of any congressional attem pts to lim it such practices.

7We d iscuss the issue o f enforceability below . See infra pp. 63-66.

62
would thus be no consequences to a failure to meet the section 10 deadline, 

and, in these circumstances, it might fairly be said that the import of the 

thirty-day deadline was merely “directory” rather than “mandatory.” See

Thomas, 729 F.2d at 1470 n.5 (statutory time period is not mandatory unless 

it expressly requires action within a particular time period and specifies 

consequences for a failure to comply). In short, when failure to comply 

with the deadline is completely without practical effect, there is no reason 

why the deadline may not, in those circumstances, be treated as directory.

Finally, we note that nothing in the legislative history is inconsistent with 

these conclusions. The legislative history discussed above indicates that the 

drafters were concerned with the delays that might be caused by unilateral

presidential or board action. See supra pp. 59-60; see also House Hearings

at 100 (statement of Mr. Richberg) (stating that indefinite extensions for an 

Emergency Board’s report were undesirable because “there is always a great 

interest on the part of one person to have delay and on the part of the other 

person not to have delay.”) By contrast, where the parties have themselves 

agreed to extend the status quo period, the drafters’ concerns are fully satisfied. Indeed, permitting an extension in such circumstances would be 

consistent with the RLA’s declared purposes of avoiding interruptions to 

commerce and of providing for the “prompt and orderly settlement” of disputes between carriers and employees. 45 U.S.C. § 151a. Of course, given 

the President’s power to insist upon the report within the statutory time 

frame, see supra p. 61, the President may refuse to grant an extension despite 

the parties’ agreement to refrain from self-help and despite their request that 

he permit the extension.

2. Enforceability o f an agreement to refrain from self-help during

extended Emergency Board proceedings

We believe that the issue of whether any side agreement by the parties 

would be equitably enforceable under the Norris-LaGuardia Act, 29 U.S.C. 

§§ 101-115 is a difficult one, give the lack of judicial authority on this 

question.8 We believe that there is no more than an even chance that a court 

would enforce such an agreement given the consistent past practice, over a 

long period of time, of using these agreements to facilitate the RLA dispute 

settlement processes. Nevertheless, a significant argument can be made that 

these agreements are, strictly speaking, outside the process mandated by the 

RLA, and there is thus a substantial litigation risk that they would be declared to be equitably unenforceable.

Among other things, section 4 of the Norris-LaGuardia Act, 29 U.S.C. § 

104, provides:

No court of the United States shall have jurisdiction to issue 

any restraining order or temporary or permanent injunction in

! In this regard, we note that the Labor D epartm ent has advised us that the enforceability o f such side 

agreem ents has never been subject to litigation.

63
any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such 

dispute . . . from . . . [cjeasing or refusing to perform any 

work or to remain in any relation of employment ....

The Supreme Court has held that, despite the broad reach of this language, 

the Norris-LaGuardia Act “does not deprive the federal court[s] of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act.” 

Burlington N.R.R. v. Brotherhood of Maintenance of Way Employees, 481 

U.S. 429, 445 (1987) (quoting International A ss’n of Machinists v. Street,

367 U.S. 740, 772-73 (1961)). The Court emphasized, however, that “[t]his 

exception is necessarily a limited one,” and that, even when a party seeking 

injunctive relief is able to show a violation of a duty imposed by the RLA, 

“[c]ourts should hesitate to fix upon the injunctive remedy . . . unless that 

remedy alone can effectively guard the plaintiff’s right.” Id. at 446 (quoting 

International A ss’n o f Machinists, 367 U.S. at 773).

The key issue is whether a breach of the side agreement would violate 

any of the “various mandates of the Railway Labor Act.” We believe that a 

persuasive argument can be made that any breach of the side agreement 

would violate section 2 First of the RLA, 45 U.S.C. § 152 First, which 

provides:

It shall be the duty of all carriers, their officers, agents, and 

employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working 

conditions, and to settle all disputes, whether arising out of 

the application of such agreements or otherwise, in order to 

avoid any interruption to commerce ....

In Chicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570 (1971), the 

Supreme Court held that, notwithstanding the provisions of the NorrisLaGuardia Act, a federal court has jurisdiction in appropriate circumstances 

to enjoin a strike, even during the self-help period, where the union has 

failed to satisfy its section 2 First obligation to use every reasonable effort 

to settle the dispute.

The precise scope of this duty, and of the exception to the anti-injunction 

provisions of the Norris-LaGuardia Act that it creates, is difficult to discern. 

In Trans In t’l Airlines, Inc. v. International Bhd. o f Teamsters, 650 F.2d 949, 

962 (9th Cir. 1980), cert, denied, 449 U.S. 1110 (1981), the court held, per 

Judge (now Justice) Kennedy, that a breach of a contractual promise not to 

strike during the self-help period was an enjoinable violation of the section 

2 First duty only if there is a substantial relationship between the breach and

64
the RLA dispute resolution procedures: “Absent a substantial nexus with 

statutory dispute settlement mechanisms or an agreement to arbitrate, an 

injunction may not issue to prevent a plain breach of a no-strike clause by a 

union.” Applying this standard, the court concluded that the contract at 

issue, which flatly prohibited strikes against certain flights, was not equitably enforceable. The contract regulated conduct during the self-help period,

when the parties had fully exhausted the RLA dispute resolution procedures, 

and therefore the “RLA plan for avoiding disruption [was] not threatened by 

the . . . strike.” Id. at 963. Chicago & N.W. Ry. was distinguished on the 

grounds that, in that case, “the union had failed to use reasonable efforts to 

comply with the mandatory disputes settlement mechanisms that lie at the 

heart of the Act,” and that the injunction in that case therefore protected the 

“integrity” of the RLA processes. Trans Int’l Airlines, 650 F.2d at 963.

We believe that the best argument for enforcing such side agreements is 

that they have a “substantial nexus with [the] statutory dispute settlement 

mechanismf].” Id. at 962. Given the long-established practice of entering 

into side agreements to facilitate the production of the statutorily required 

reports by the Emergency Board, we believe that these agreements are arguably part of the dispute resolution process. At a minimum, it would appear 

that they indeed have a “substantial nexus” to that process.9

There is, however, a potential counterargument. As our earlier discussion 

shows, these side agreements regulate conduct that is, strictly speaking, outside the statutory status quo period. Accordingly, their “nexus” to the statutory 

scheme might be questioned, especially if a court were to read Trans Int'l

Airlines as broadly prohibiting any injunctions once the strict statutory deadlines had passed.

It might also be argued in support of enforcing the agreement that a strike 

called before the expiration of the extended period specified in the side 

agreement is a violation of the status quo provisions of section 10.10 We 

believe, however, that this argument is untenable in light of our earlier conclusion that late submission of the report will not toll the running of the 

statutory status quo period. Indeed, the possibility of an extension being 

granted at all hinges upon the parties’ willingness, by private contract, to

’ Indeed, it m ight also be argued that the union’s conduct in agreeing to an extension o f the status quo 

period, w ith its consequent effects in altering the normal RLA process, is a breach of the section 2 First 

duty w here, as is likely to be the case, the union intended all along to abide only by the strict statutory 

definition o f the status quo period. Such a case w ould closely resem ble Chicago & N.W. Ry., w hich 

authorized an appropriate injunction, during the self-help period, where the union failed to use reaso n ­

able efforts to settle the dispute during the RLA dispute settlem ent procedures. Indeed, a u n io n 's 

actions in causing the delay o f the subm ission o f the report, with the intent to take full advantage o f the 

strict statutory deadline, would arguably “threaten" the “RLA plan for avoiding disruption," and an 

appropriate injunction against the ensuing strike would “protect" the “integrity o f these m echanism s.” 

Trans Int'l Airlines, 650 F.2d at 963. The availability o f this argum ent, how ever, w ould appear to turn 

on the union’s intent at the tim e o f entering into the side agreem ent.

l0It is clear that a federal court has jurisdiction to enforce com pliance with the status quo provisions of 

section 10. See, e.g.. Pan American World Airways, Inc. v. Flight E ng'rs' In t’l A ss’n, 306 F.2d 840, 846 

(2d Cir. 1962).

65
extend the status quo period beyond that specified in the statute." Accordingly, we conclude that, although a union might violate the side agreement 

by calling a strike outside the sixty-day statutory period, it does not thereby 

violate section 10.12

Lastly, it might be argued that, to the extent that there is any ambiguity in 

the side agreement concerning the extent of the restrictions on self-help, the 

necessary interpretation of the agreement raises a “minor” dispute that must 

be resolved under the compulsory arbitration provisions of the RLA, see 45 

U.S.C. § 153. The Supreme Court has held that, pending the resolution of 

these minor dispute resolution procedures, the parties have an equitably enforceable obligation to refrain from self-help. See Brotherhood o f R.R.

Trainmen v. Chicago River & I.R.R., 353 U.S. 30 (1957). This argument 

may be unavailing for two reasons. First, if Trans Int’l Airlines is correct in 

holding that agreements to regulate conduct during the self-help period are 

not equitably enforceable, it is unclear how there can be any need for arbitration to determine to what extent the side agreement limits self-help; the 

agreement will be equitably unenforceable regardless of the extent of its 

restrictions.13 Second, the availability of this argument hinges on the precise 

wording of the restrictions in the side agreement drafted by the parties, a 

factor that is not within the control of the executive branch. If the restrictions are clearly worded, no minor dispute can arise, and no equitable relief 

will be available under this theory.

C. Presidential pow er to reconvene emergency boards

We do not believe that the President possesses power to impose a second 

status quo period by convening a second Emergency Board or by reconvening the original board. Neither the text nor the legislative history of the 

RLA provide any support for such a power. Indeed, the legislative history’s 

emphasis on the need for a prompt resolution of the board’s activities, within a 

fixed period of time, affirmatively undercuts the notion that the President may 

extend the status quo period simply by reconvening or reappointing the board.

Nor do we believe that past practice under the Act provides any support 

for such a power. The NMB has informed us that there appears to have been

"M o re o v e r, because the possibility o f an extension depends upon the parties’ private contract, there is 

arg u ab ly no reason w hy the parties m ay not agree to extend the status quo period until ten or tw enty 

(rath e r than th irty ) days after the Em ergency B oard’s late subm ission o f the report. It w ould be difficult 

to argue that such an “extension plus ten days” period is equivalent, for purposes o f the RLA and the 

N orris-L aG uardia A ct, to the statutory period described in section 10.

I! W e reach this conclusion despite the fact that the statute states that the cooling-off period com prises 

the “thirty days after such board has m ade its report to the President." As discussed above, the w ording 

o f this sectio n w as based o n the d rafters’ assum ption th at the thirty-day deadline w ould be strictly 

c o m p lied w ith.

13 It m ight be argued, how ever, that interpretation o f the agreem ent w ould still be necessary in order to 

d eterm in e the extent o f entitlem ent to o th e r form s of relief, such as dam ages.

66
only two such reconventions in the last forty-one years.14 The information 

that we have been given concerning such reconvention indicates the fairly 

narrow circumstances under which boards have been reconvened. Thus, 

both of the two boards that were reconvened between 1950 and 1987 were 

reconvened only after the parties had requested this action and only for the 

purpose of clarifying an ambiguous point in the board’s original report. See

Letter from H. Witt, Member, NMB to the President (Sept. 8, 1986) (reconvening of Emergency Board No. 211); Letter from Emergency Board No. 

187 to the President (Nov. 26, 1975) (report of reconvened board). These 

very limited precedents provide no support for the view that the President 

may impose a new status quo period by reconvening an Emergency Board 

over the objections of the parties or to deal with completely different issues.15

CONCLUSION

We conclude that the President may grant an extension for filing a report 

by an Emergency Board appointed under section 10 of the Railway Labor 

Act only if the parties consent to the extension by making a side agreement 

that extends the status quo period. As a practical matter, the effectiveness of 

any such extension of the status quo period depends upon the equitable 

enforceability of the side agreement, a matter concerning which there is 

substantial doubt. Furthermore, although the President may not unilaterally 

extend the thirty day deadline for filing a report, he may shorten it. Finally, 

any subsequent boards appointed by the President (whether by reconvening 

an Emergency Board or appointing a new one) cannot bind the parties to 

status quo without their consent.

JOHN O. McGINNIS 

Deputy Assistant Attorney General

Office o f Legal Counsel

u The NMB has stated that there may have been as many as four reconventions in the first tw enty-four 

years, but it does not as yet have inform ation on the circum stances o f the reconventions.

15 O f course, the President may choose to consult with the m em bers o f the form er board about any issue 

relating to the dispute, but this w ould not be an action taken under the R LA , and it w ould not have the 

effect o f im posing a new status quo period.

67