Our members ask this question quite frequently, and the answer involves some complex and often confounding challenges. This Committee prepared and presented 42 cases in six sessions before four different Public Law Boards during calendar year 2002. We received several "bench decisions" reinstating employees who had been dismissed from service, but at year's end we had actually received written Awards in only 10 of those 42 cases.

The Railway Labor Act is intended to function as a kind of "stabilizer." Its purpose is to avoid service disruptions in our industry by providing a means of resolving disputes without stopping trains. Over the years, a body of regulations, legislation and litigation involving the Act has made it increasingly difficult for either management or labor to unilaterally take any action that might jeopardize railroad operations and endanger either the national defense or the economy. The end result is that virtually all claim or discipline disputes that cannot be resolved at the bargaining table eventually go to the third "neutral" party for resolution. In that arbitration process, both parties to dispute have an opportunity to present their case and argue their positions, but both sides also relinquish control of the outcome as that neutral third party writes an Award that determines the outcome and fashions the remedy. It takes only one of the opposing parties to make a "majority" and validate the Award.

The arbitration process was included in the Railway Labor Act as an alternative to "self help" (i.e., strikes or lockouts) in what has come to be known as "minor disputes" in our industry. The term "minor dispute" really has nothing at all to do with the importance of the issue. Rather, a "minor dispute" is any dispute that arises from a difference of opinion as to the interpretation or application of a collective bargaining agreement. In contrast, a "major dispute" is one that involves a unilateral change in wages or working conditions where both parties recognize (by their words or actions) that the existing Agreement does not permit such a change, and there is no peaceful remedy available under the Act. In those "major disputes" either the railroad or the union may result to "self help" unless the National Mediation Board or the President or the Congress intervenes. But as long as either side disagrees with the other as to the meaning of a contract or its applicability to a particular set of facts, the dispute is by definition a "minor dispute" under the Act, and arbitration is the ultimate venue for resolution.

The expenses for an arbitrator to resolve those "minor disputes" in our industry are paid by the NMB rather than by the parties in dispute, so that funding (and the arbitration process itself) is overseen by the NMB. Moving farther up the food chain, NMB's budget is included in the Labor Health and Human Services Appropriations Bill, which also authorizes funding for defense spending, Social Security, Medicare, Railroad Retirement and other social programs. Thus, funding for railroad arbitration is in direct competition with funding for all of these other interests. With a Republican President, a Republican House, a Republican Senate, federal deficits in the hundreds of billions of dollars, an economy that's running on empty, concerns over homeland security and war abroad, just to name a few of the more well-known distractions, that competition for funding is hot.

Another significant challenge is finding an arbitrator who knows something about railroads, who will tolerate this constant struggle for funding, and who will stand squarely on neutral ground, apply the contract as written and not be deterred by criticism or pressure from either side. Such individuals are becoming scarce indeed as the NMB tightens its purse strings. Additionally, railroad management often attempts to intimidate these arbitrators by refusing to list additional cases to any who issue Awards not in the Carrier's favor.

We will continue to aggressively pursue claims and grievances, and we will use the arbitration process when necessary. That process is slow and it is fraught with possible dangers, but sometimes it is the only recourse available and we fully realize the importance of taking the right cases to the right arbitrators.