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On the Waterfront

October 8, 2002 at 12:00 AM EST
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MARGARET WARNER: President Bush’s decision to seek a court-imposed cooling-off period came after a ten-day shutdown of West Coast ports.

Mr. Bush acted under the authority of the Taft Hartley Act, the first time in a quarter century that a president has intervened in a labor dispute under the 1947 law.

Here to walk us through the basis of his decision and what we can expect from here are Harley Shaiken, a professor at the University of California at Berkeley specializing in labor and the global economy, and Charles Craver professor of labor and employment law at George Washington University Law School. He’s the author of a recently released book The Intelligent Negotiator. Obviously, we need some intelligent negotiators in this.

Professor Shaiken, first explain what we saw this afternoon. At about 3:40 pm, the Associated Press moved a story saying the union had agreed to go back to work for 30 days under an extension. Three minutes later, the president came out and said he was going to court to force them to go back to work under.. for 80 days. What happened here?

HARLEY SHAIKEN: Well, this afternoon seemed to have an Alice in Wonderland quality to it.

Normally when a union at this point in time agrees to go back to work, it removes the rationale for Taft Hartley being invoked in the first place, which mandates that the union goes back to work for an 80-day period.

But this is a very unusual case to start with since it’s the first time out of 35 times that Taft Hartley has been invoked in a lockout; that is, where the employers have locked the union out. So the employers evidently felt that the preferred method would be to have Taft Hartley call work to resume for 80 days rather than to accept the union’s 30-day offer.

If it sounds confusing, it is confusing. And it really is uncharted territory.

MARGARET WARNER: Do you agree with that — this is uncharted territory?

CHARLES CRAVER: I do. What makes it interesting if they had accepted the 30-day extension, it would have still allowed the 80 days to be used in the future if they didn’t have an agreement. Number two, it would have been nice to have the parties do something that they had agreed upon since they’re fighting over everything else. And the third thing is — I think the biggest concern from the Pacific Maritime Association concern, the employers, were that there would be a slowdown. And they couldn’t control that as well as they could if they’re under the supervision of a federal judge.

MARGARET WARNER: I see. So, Professor Shaiken, how likely do you think it is now that the federal court will grant this injunction?

HARLEY SHAIKEN: I think it’s very likely. Only two times has a federal court refused to grant an injunction. But that doesn’t end the problem. It may only be the beginning of it.

A Taft Hartley is often referred to as an 80-day cooling-off period. In fact, it can be an 80-day period where both parties steam and the pent-up anger then comes out at the end.

The last time this was invoked in the maritime industry, or in the long shore industry, was in 1971 in a West Coast docking strike. Taft Hartley then expired on December 26 of 1971. The parties negotiated for several more weeks and, on January 17, they went back on strike for an additional three- week period. So, Taft Hartley may not be a solution, although in this case the Maritime Association was obviously welcoming it.

MARGARET WARNER: If they go back to work, Professor Craver, how quickly do you think this… all this cargo could start to move? I mean, we see there’s some 200 container ships now off the coast in California.

CHARLES CRAVER: They should be able to get things moving very quickly because this is the type of job, these are very skilled workers, they go back, they start loading and unloading ships.

The backlog will stay because you had several weeks where you have not been moving cargo very quickly.

The second question will be, will they slow down? They have what they call work-to-rule, which is where they follow every single safety regulation very carefully and they load about half the ships that they would load normally. That’s what the judge is going to have to worry about: Is the judge going to supervise their work habits?

MARGARET WARNER: Professor Shaiken, the head of the union said this afternoon that the workers would comply with the Taft Hartley injunction, quote, as best we can. But he added that the members would, quote, work safe. What does that sound like to you?

Does that sound like a threat to work but still slow down?

HARLEY SHAIKEN: Ambiguous and probably purposefully ambiguous. I think under the union’s 30-day offer, they clearly would have had the incentive to work fully and to try to sort out the back-log and to negotiate in an effective way. Now it’s a bit different.

They’re being compelled to go back to work. Taft Hartley is compelling operations to resume.

And, in effect, they’re both highlighting genuine concerns over safety and likely implying that this may not be so easy. So negotiations will take place on two levels: First, the negotiations over the contract itself, and second to what extent there is or is not a slowdown that’s taking place.

MARGARET WARNER: And, Professor Craver, go back to a point that Professor Shaiken made earlier, which is that historically often these cooling-off periods really don’t cool anything off.

How successful are they at doing what the president said today he wanted to do which was create an atmosphere in which the two sides would negotiate in good faith?

CHARLES CRAVER: Well, in a number of cases, they have worked.

Eighty days is a long period of time. They have been making some progress. They’ve had some bitter disputes because they’ve lost a lot of jobs over the past three or four decades to automation.

The union is trying to claim new jobs affected by new technology, and they’re worried about that.

They’ve gone from about 100,000 members in the mid 1950s to about 10,500 today. And so they are being asked to negotiate in part their own demise. And that’s very difficult to ask a labor organization to do that.

On the other hand, they’re very well paid. They want to continue that. I think the owners of the shipping companies are willing to give them guaranteed employment for people who are going to be reduced in terms of their hours of work but that’s what they’re going to argue about: How are we going to protect the clerks in particular as well as the people on the docks.

MARGARET WARNER: Professor Shaiken, let’s explain to our viewers about why these jobs will be lost. We’re talking here about the clerks that right now manually track the cargo coming in and out which really isn’t necessary anymore, is that right?

HARLEY SHAIKEN: That’s right. The technology really eliminates that, but I don’t think the issue so much is the job loss. It certainly isn’t the technology. In a report that the federal commission that President Bush appointed released today, they said directly, the issue is not the technology. Both sides are willing to accept new information technologies.

The real issue is how they’re used. From the union’s point of view, they want to have a foothold in the future. So they want to see the technology benefit them now and also their control over it to protect the gains they’ve won in the past. From the employer’s view, they want more flexibility. They’re likely to want to see a weaker union and to achieve that in part by having a more full control over the technology. So what’s really going on here is how the technology is used.

Both sides have an incentive to see a more productive waterfront, to see the technology introduced, but there are clearly some important differences that are yet to be resolved.

MARGARET WARNER: Let’s go back just a minute to the process, Professor Craver, because what’s supposed to happen in these 80 days? I mean, there’s actually a step-by-step thing, isn’t there?

CHARLES CRAVER: Yes. For 60 days the board appointed by the president will hear evidence. And at the end of that time they’ll report on the progress that has been made, the final positions of the parties and especially the final position of the employer, because the last 15 days, the National Labor Relations Board conducts a secret ballot election among the Long Shore workers as to whether they will accept the offer of the employer and then they have five days to report to the attorney general and the president and have the injunction withdrawn.

MARGARET WARNER: And, at least theoretically, what is supposed to be the incentive for, say, the employer to somehow make an offer that’s attractive to the union? I mean, in other words, or you can explain the incentives on both sides if you like.

CHARLES CRAVER: Well, the strange incentive is the fact at the end of these 80 days, as Professor Shaiken pointed out, they can go on strike again or they can lock out again. You only get one 80-day cooling off period. There’s no reissuance of that order.

The only thing that could come after that if they don’t settle is a special bill from Congress imposing arbitration. Normally Congress has been hesitant to do that. They’ve done it under the Railway Labor Act for some intractable disputes involving the railroads, but they have normally not done it under the National Labor Relations Act or Taft Hartley.

And so the real pressure here is they have 80 days before we’re going to see another shutdown. One of the ironies here is this is a lockout as was pointed out earlier — not a strike — so the employer initiated it. And they’re the ones that are asking for a back to work order even though the reason for the shutdown is they initiated the stoppage.

MARGARET WARNER: Very confusing but thank you both for trying to help us understand it.

HARLEY SHAIKEN: Thank you.

CHARLES CRAVER: Thank you very much.