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October 10, 2002

The ILWU Restraining Order

Here

Update: Some have asked how a court could hold the union in contempt for just following the safety rules contained in the contract, even if that might slow work down. The answer is that courts are not idiots and know a slowdown when they see one-- that's the intent of a "work safe" slowdown; the employers know it, the union knows it, and the courts know it. In fact, only if its pretty obvious that's its a slowdown can it by definition force the company to give in on a contract.

But don't let me just tell you-- here's the 7th Circuit Court of Appeals enforcing a new injunction against the IAM last year: United Air Lines, Inc. v. International Ass'n of Machinist & Aero..., 243 F.3d 349 (2001) which says how a court can identify an illegal "work safe" slowdown:

IAM offers no satisfying explanation for why these bulletins included--indeed, trumpeted--the message to WORK SAFE! in the context of blaming United for the lack of progress in the negotiations or of criticizing United for its recent oppressive management actions. Nor does IAM explain why the language telling mechanics to "work safe" was the only language written in bold face, underlined, or in all capital letters. While some of these bulletins also contain statements urging members not to "engage in any job action," such statements are dwarfed by the messages to "work safe," leaving the clear impression that the relatively inconspicuous statements discouraging a slowdown were not meant to be taken at face value.

Given the context in which the "work safe" messages appeared and the prominent nature of their display, their obvious intent was to urge mechanics to engage in a work slowdown in response to the impasse in negotiations. In addition, given that IAM does not deny that such language can serve as a code for a slowdown, we find it difficult to believe that IAM would have included such language in the context of bulletins regarding negotiations (especially at a time when it claims that bulletins bearing the same code language were being distributed by dissident mechanics as a call for a slowdown) unless it intended to signal the mechanics to engage in a slowdown."

This was in the context of overriding a lower court to issue an injunction against the Work Safe slowdown, but if they are enjoining a Work Safe slowdown, they sure as hell will issue a contempt decree to enforce it.

I will also note that the 11th Circuit Court of Appeals ordered pilots to take voluntary overtime, since refusal to do overtime during an injunction constituted an illegal job action that could be enjoined. Delta Air Lines, Inc. v. Air Line Pilots Ass'n, Int'l, 238 F.3d 1300 (2001).

These are both under the Railway Labor Act, a bit different legally, but the basic point holds since outside Taft-Hartley injunctions, these are the main places where you have cooling off periods and these kinds of normal injunction limits on union actions. Courts know a slowdown when they see one and will act accordingly.

And to get how serious a breach of such injunction orders can be, check out
Am. Airlines, Inc. v. Allied Pilots Ass'n, 228 F.3d 574 (2000)-- there the 5th Circuit upheld a $45 million dollar fine paid by the Allied Pilots Assocation to the company for conducting an illegal "sickout" in defiance of the court order. That's $45 million-- the Allied Pilots Association has barely been able to struggle to exist under the economic costs of this fine.

So yes, it seems very likely that there could be a contempt proceeding and even the destruction of the ILWU if the courts deem a "work safe" action an illegal slowdown from the "normal" pace of work.

Posted by Nathan at October 10, 2002 01:12 PM

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