Monday, November 24, 2008

What are all the words for? New transit negotiations?

The PG covers the machinations that ended the 1992 Port Authority strike. By focusing on the judicial involvement that ended that strike, it certainly leads the reader to think that there will again be legal involvement that could come into play. I am just not sure the circumstances are similar enough to really compare the two situations as directly as the paper does. So here is some non-lawyerly legal musings over what the legal differences are between then and now and what they may mean.:

In the PG story, local lawyer-politico Joe Mistick ends with a comment implying that the city ought to be preparing now to engage as Mayor Masloff did at the time. But there is a big difference. I am pretty sure a judge wouldn’t order workers to work against their wishes with a contract imposed unilaterally by management. In 1992, a judge ordered workers back to work, but the difference was they went back to work under their previous contract which they may not have liked.. but it was at least a contract they did once approve. It just seems to me that any legally imposed end to a as-yet-nonexistent work stoppage (pick your noun to describe it) would have to be under the currently extant contract… not the contract to be imposed next week.

Then the funny thing to think about is that if the current contract was not about to be abrogated, it seems pretty clear the drivers were not about to strike..... much to the consternation of the Port Authority itself. Think back to all the PR spin you heard that there was going to be a strike once the factfinders report was rejected by the union. That didn’t happen now did it. Was it going to happen? Not much evidence that it was. It’s hard not to get past the conclusion that the imposed contract is first and foremost a means to force the drivers into something that the public will perceive as a strike. If the goal was to keep the system operating at least through Christmas, why would you ‘impose’ a contract Dec. 1.

Let’s also go back to 1992 to see how the factfinders report played into the negotiations. I am reminded that just recently the argument was made that it was the union that was going against the will of the public by rejecting the factfinders report while the reasonable Port Authority management accepted it. Any work stoppage it was argued, would thus be the fault of the union the argument went. Yet what happened in 1992? Rarely mentioned is the fact that back then the union accepted the factfinder’s report and it was Port Authority management that rejected the factfinder's report. So using the same logic, was the Port Authority management in 1992 the one that is responsible for the 28 day strike which was (and still is) the longest public transit stoppage here in recent decades? If you then take that logic just a bit farther... read the Post Gazette article again and see its theme that it was the convoluted ending of the 1992 strike that has lead to the lack of progress in labor issues in the following 16 years and the situation the system finds it in right now. So again, who is at fault for the current sad state of labor management relations at the Port Authority? Consider what if the Port Authority had accepted the factfinders report in 1992. There would have been no strike at the time... there would have been no history of a strike of more than a few days in the entire history of the Port Authority. Earlier strikes had been 3 days in wildcat strike in 1971, for 7 days in 1973, 5 days in 1976 .. That would have left in place a strong precedent for the future.

But looking to our current situation again… counterintuitive as it seems, I just wonder if the last thing the Port Authority would really want to happen is some litigation by the city or somebody else as Mayor Masloff did to end a work stoppage. If that process leads to a return to the previous contract terms then the Port Authority winds up worse than it did to begin with, not only stuck with the old contract but with some legal support for it as well. At the very least it would be a crack in the PR machine that thus far has been swamping the drivers in the public debate is it doesn’t exist.

If that isn’t the way it plays out, consider the alternative. If a local judge were to really force workers to work under a contract imposed completely by management without any cooperation by workers, it would truly be an unprecedented event in labor-management relations in the US. If such a thing were to happen in Pittsburgh of all places it would be a pretty seminal event. Thus I bet why the AFL/CIO is showing such unusual interest in the situation here now.

My guess as to what will happen in the near term is less than a guess. What is going on now in DC is just a big wildcard to me. If nothing comes out of that I go back to the Trib story that really points out how legally tenuous the Port Authority's imposed contract really is. If the drivers can go to court to have the imposed contract tossed they certainly will. The question that I leave to the legal beagles is whether they have to literally be off work to have a claim in court. If they show up at work under the 'imposed' contract will they forfeit their rights in some way. I suspect that is the situation the drivers are forced into at the moment in some form. That again leads to the conclusion that the goal here is more to force the drivers to walk out than anything else. It would be a different case if the legal case were stronger. That and what options does a union have to an 'imposed' contract. If that is left standing then unions might as well fold up shop all around. Not much need for unions if that becomes the paradigm for labor-management relations.

But what is going on in DC? I really have no idea right now. What could be the result if anything? If the AFL/CIO were to come out against the drivers then obviously they would be a much more tenuous position going forward. But if the AFL/CIO throws its own weight against the Port Authority then its hard to say what the impact would be? But the Port Authority has raised this to a bigger issue than a local transit funding issue by potentially making it a symbol for unions across the country. Imagine if folks all over started 'imposing' contracts.

Last comment that occurs to me. The whole basis of the Port Authority claiming that they can impose a contract on the drivers rests supposedly on their being an impasse in the negotiations. I don't see how you can claim that is the case if you are travelling to DC to have meetings with the AFL/CIO on the situation. Sure seems to me that the Port Authority has thrown away the ability to claim there is an impasse if these meetings with the AFL/CIO really took place. If that logic is valid, that means there is no basis at all legally for them to try and impose a contract. But that is trying to apply logic to the law which my lawyer friends tell me is a fool's game.


Blogger Jennifer said...

The point that hasn't made it into the media is that the ATU is willing to make sacrifices and cut costs. They just want to chose where those efficiencies are found rather than have management pick. Imagine you have to cut your household budget, would you want someone else telling you what to cut and trim? Up until this weekend the Port Authority refused to even hear what the ATU had to offer, they simply said our way or the highway.

AND while a lockout may feel the same to the riders as a strike, its a very important difference. As you said the drivers DON'T WANT to stop working. Its 5 weeks before Christmas. They have families and children too. But the Port Authority has basically forced them out. Its a "virtual" lock out. If they go to work under the terms of the imposed contract, they would be essentially accepting the contract. To suggest that is somehow the workers fault is a HUGE step BACKWARDS in the labor movement. It reminds me of the logic that prevented workers from suing their employees in the 19th century, regardless of how unscrupulous the employer and unsafe the conditions, because the worker "chose" to work there under those conditions. That is an argument that only makes sense from the warm, comfortable chair in an executive office. Jeez, even Allen Greenspan realizes that corporations need regulation because their greed prevents the invisible hand from working right!

Monday, November 24, 2008 5:58:00 PM  
Anonymous rachel c said...

well said!

Monday, November 24, 2008 8:43:00 PM  
Anonymous AMD said...

Before we engage in a proletarian group hug, Jennifer, your analogy could not be more wrong. Management is the head of the household, not labor. Management decides where money gets spent, not labor. Management is responsible for balancing the books, allocating service, and insuring for the safety of riders, not labor. Although management bargains for the workforce, it bargains for that just as it does for diesel fuel, tires and buses. Management manages. Labor works. Period.

As for Chris's post, there is an absolutely valid basis for Port Authority imposing this contract. If continuing to exist under the current contract and negotiating without end would lead to insolvency, PAT management can do just that. An expired labor contract is not required to be a suicide pact. If the ATU wants to keep negotiating (and it does, forever) rather than accept a lesser deal, PAT will go out of business. The reason the AFLCIO is meeting with PAT in DC is to go over the PAT numbers, not broker an agreement. The AFLCIO knows that PAT is permitted to do this (impose a contract) under labor law if continuing to operate under the old contract would lead to insolvency. That is exactly what the AFLCIO is trying to avoid. They know that if PAT is successful, they won't be last public agency to do this. PAT's situation is unique because it can't raise taxes nor can it effectively raise fares or other revenue (increased fares are somewhat self-defeating since they lead to decreased ridership), so insolvency is a very real possibility since labor salary and benefits makes up nearly 3/4 of its costs.

Tuesday, November 25, 2008 10:51:00 AM  
Blogger C. Briem said...

I will deal with the misunderstood insolvency argument more comprehensively in the future.

but it's amazing someone thinks the imposed contract is legally valid. Someone pointed out to me that even the consistently pro-labor Allegheny Institute has said the completely opposite. I think the quote from them is that the port authority's attempt to impose a contract will...

" likely that the effort will quickly be thrown out by the courts and the union could be back working under terms of the recently expired contract."


If even the AI is saying that, its pretty hard to make a case that the opposite is true. According to the comment above, the AFLCIO must be far far to the right of the AI in thinking that PAT is permitted to do what they did. I must have missed the ground shaking and the Monongahela parting.

Tuesday, November 25, 2008 11:19:00 AM  
Anonymous rachel c said...

i think you meant "consistently NOT pro-labor Allegheny Institute" ;-)

Tuesday, November 25, 2008 11:35:00 AM  
Anonymous Anonymous said...

As I have been reading/hearing things on a couple of different fronts, this is an attempt to bust the union so that Onorato can run for governor in 2010 as 'not beholden to Dem Special Interests'

Tuesday, November 25, 2008 5:44:00 PM  
Blogger Felix Dzerzhinsky said...

Chris: Thanks for being the only online place I can think of (and among precious few places in the "real world," too) where this whole thing can be discussed rationally, without the viciously anti-worker misrepresentations of the Allegheny Conference and their hangers-on.

Tuesday, November 25, 2008 6:38:00 PM  
Anonymous DDS said...

Here's a question: why won't the ATU put up something, anything, with their name on it on the web for people to look at? PAT has all kinds of information; some good, some not so good; but at least it is out there. Once upon a time there were a few PAT drivers that commented on this blog and others. They seem to have dropped off the face of the earth. I think that the ATU is losing this battle in the public forum because they are ignoring the public forum.

Back to an earlier post, what is PAT management to do if the union won't sign a new contract? Do they really have to keep taking on more liabilities that they can't afford if the drivers won't agree to some givebacks?

Tuesday, November 25, 2008 7:48:00 PM  
Blogger C. Briem said...

I think there is a simple answer: the drivers who were blogging probably need to be... well.. driving.

But I actually agree with that statement in a lot of ways. But what you have to understand is that the resources the Port Authority has for public relations and lobbying pales against the resources the ATU has. Consider just some of the direct expenses the Port Authority spends on lobbying. I have no idea the specifics, but I bet that $ amount is more than the entire local ATU budget. Let alone the money that must be spent on that "Rumor of the Day" site which is by far the most biased use of public resources I have ever seen. When governments spend money advertising on one side of an issue like that, they get in trouble, but I guess since the Port Authority exists in that quasi-government role nobody seems to care, even though it is de facto public money being spent. Then you get into the indirect money being spent on the Port Authority's side. There just isn't anyone funding a position to work the issue on their side as the Port Authority has Downtown. So I do agree, basically the drivers get beat up each and everyday because they just are not participating in the public debate and every hit they take from those who really want to see public transit go away is essentially unanswered. It's a completely unbalanced playing field as best I can tell... more so than in almost any other situation I can think of. The drivers are not blameless for letting the situation get like it is, but at the end of the day the Port Authority and others have focused a lot of resources on just pure PR spin which has been quite successful I have to say. Honestly, if thought there was any balance at all in the resources being spent on pure PR efforts, I would just stand by and watch for the most part and stick to my wonkish ways.

The liability issue is by far the most perfect case in point. Just to ask the question like that shows how successful the spin has been. How misunderstood the liability issues are for the Port Authority is astounding to me. Not worth getting into here, but lets take a poll. Who thinks the drivers pension liability is underfunded and by how much? Is it comparable to GM's? to the City of Pittsburgh? or somewhere in between? How much has the Port Aurhority contributed to the pension liability over the last decade? How much have they contributed compared to comparable other transit systems? We will leave all those as questions for now although we have hashed them out a bit in the past.

Tuesday, November 25, 2008 8:36:00 PM  
Blogger C. Briem said...

well. look at that. PG is reporting a deal. Will be interesting to see the details. Everyone is going to claim victory somehow. I thought Bland claimed they were just down there just to talk. His specific quote just the other day way: "It's not like we're giving out proposals. I think it was more for the international folks to get a handle on the authority's financial situation". Funny that.

Tuesday, November 25, 2008 11:08:00 PM  

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