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October 7, 2002

Bush intervenes in West Coast port dispute
President George W. Bush has taken the first step towards imposing an 80 day cooling off period and return to work in the West Coast ports dispute.

A White House statement issued today says that "faced with a growing threat to the American economy and American jobs, the President today used his statutory authority under the Taft-Hartley Act to convene a Board of Inquiry to examine the work stoppage at the West Coast ports. A Board of Inquiry is part of a framework established by Congress to address labor disputes that threaten national health and safety.

The statement says the dispute is a threat to America's national health and safety. "The health of our economy in every corner of America is in jeopardy because of the dispute. In many areas of the economy, layoffs have begun, thousands more jobs may be lost, and all Americans may soon begin to pay sharply higher prices for household goods," it notes.

The White House statement says that reopening the ports, even if only for 80 days [the cooling off period that the President can order under Taft Hartley], will benefit the economy. The parties will be given time to settle the dispute. Manufacturers and retailers will be given additional time to adjust and prepare."

The Taft-Hartley process, says the statement, "is the government's principal legal means of addressing a labor dispute that could have a devastating national impact. The government first sought mediation as an alternative solution to this dispute. Since the beginning of the dispute, the government has made itself available to help both parties resolve their differences. The Federal Mediation and Conciliation Service (FCMS) has been on the ground seeking a solution since before the work stoppage began. However, the mediation process has not been successful, and the President has decided to take action in order to protect America's national health and safety."

The Issue

West Coast ports have been closed since the second shift on Sunday, September 29, when the Pacific Maritime Association (PMA) shut down the ports in response to a reported work slow-down by members of the International Longshore and Warehouse Union (ILWU).

What Happens Next

Step 1: The President's Executive Order

The President's Executive Order establishes a Board of Inquiry. The Executive Order states that:

  • A labor dispute exists;
  • The dispute affects a substantial part of the maritime industry, an industry engaged in trade, commerce, transportation (including the transportation of military supplies), transmission, and communication among the several States and with foreign nations; and
  • A continuation of this lockout will imperil the national health and safety.

The law states that the President may establish the Board of Inquiry if he determines that the labor dispute issue "will imperil the national health and safety." The President has determined that the short-term and long-term damage to our economy and our national health and safety constitute such a threat.

The President has appointed the following three Board of Inquiry members:

  • Bill Brock (Chairman) – Served as a member of the House of Representatives from 1963 to 1971, as a U.S. Senator from Tennessee from 1971 to 1977, and as U.S. Trade Representative and Secretary of Labor from 1985 to 1987. Currently Chairman of Bridges Learning Systems, an intervention program for academically troubled students
  • Patrick Hardin – W. Allen Separk Distinguished Professor of Law, University of Tennessee College of Law. Former Chief Counsel to the Chairman and Associate General Counsel in charge of the Division of Enforcement Litigation of the National Labor Relations Board, he has been on the faculty of the University of Tennessee since 1975. Editor-in-chief of The Developing Labor Law (3rd ed.)
  • Dennis R. Nolan – Webster Professor of Labor Law, University of South Carolina School of Law. Professor Nolan has been on the faculty of the University of South Carolina since 1974. Currently serves as Vice President of the National Academy of Arbitrators. Author of eight books and numerous articles on arbitration, collective bargaining, and labor disputes.

"The President," says the statement, "has chosen these three individuals for the Board because they are unbiased, fair and experienced at labor and employment issues."

Under the Taft-Hartley process, the Board's job is to inquire into the issues involved in the dispute and issue a public report that outlines the facts of the dispute – including each party's statement of its position. However, the law prevents the Board from making any recommendations or choosing sides in the dispute. The Board may only state the facts.

The Executive Order requires the Board to report back to the President by no later than October 8th.

Step 2: Petition for Injunction

After the President receives the Board's report, he may then direct the Attorney General to seek a court injunction to halt the work stoppage. To receive this injunction, the Government must establish that the dispute affects a substantial part of an entire industry and imperils the national health or safety.

If the court issues the legal injunction against further work stoppage, an 80-day clock begins, the ports would open, and employees would return to work.

Step 3: Reconvening the Board of Inquiry

After 60 days, if no agreement has been reached, the Board is required to issue a second public report to the President that includes:

  • The current positions of the parties involved;
  • The efforts which have been made for settlement;
  • A statement by each party of its position; and
  • A statement of the employers' (PMA) last offer of settlement.

Step 4: NLRB Secret Ballot Vote

Between days 61 and 75, the National Labor Relations Board (NLRB) will conduct a secret ballot vote of ILWU employees on the PMA's last offer of settlement. The NLRB is required to certify the results to the Attorney General no later than five days thereafter.

At the end of the 80-day period the legal injunction is discharged. If the dispute is unresolved, and if ILWU employees have rejected the PMA's final offer in the NLRB secret ballot vote, the parties become free to engage in work stoppages again.

Step 5: President Reports to Congress

The law requires the President to send a final report to Congress on the entire Taft-Hartley process. The report may include further recommendations on how to resolve the labor dispute.

Text of today's Executive Order:.

Executive Order: Creating a Board of Inquiry to Report on Certain Labor Disputes Affecting the Maritime Industry of the United States

WHEREAS, there exists a labor dispute between, on the one hand, employees represented by the International Longshore and Warehouse Union and, on the other hand, employers and the bargaining association of employers who are (1) U.S. and foreign steamship companies operating ships or employed as agents for ships engaged in service to or from the Pacific Coast ports in California, Oregon, and Washington, and (2) stevedore and terminal companies operating at ports in California, Oregon, and Washington; and

WHEREAS, such dispute has resulted in a lock-out that affects a substantial part of the maritime industry, an industry engaged in trade, commerce, transportation (including the transportation of military supplies), transmission, and communication among the several States and with foreign nations; and

WHEREAS, a continuation of this lock-out, if permitted to continue, will imperil the national health and safety;

NOW, THEREFORE, by virtue of the authority vested in me by section 206 of the Labor Management Relations Act, 1947 (61 Stat. 155; 29 U.S.C. 176) (the "Act"), I hereby create a Board of Inquiry consisting of such members as I shall appoint to inquire into the issues involved in such dispute.

The Board shall have powers and duties as set forth in title II of the Act. The Board shall report to me in accordance with the provisions of section 206 of the Act no later than October 8, 2002.

Upon the submission of its report, the Board shall continue in existence in order to perform any additional functions under the Act, including those functions set forth in section 209(b), but shall terminate no later than upon completion of such functions.

October 7, 2002.

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