Emergency Procedures for Resolving Labor-Management Disputes in the United States, Canada and Mexico
TABLE OF CONTENTS
In November 1999, the National Law Center for Inter-American Free Trade (NLCIFT) responded to a request for proposals issued by the U.S. Department of Labor to study emergency procedures involved in resolving labor-management disputes in the United States, Canada and Mexico. The Department of Labor accepted the NLCIFT proposal, and this Report is submitted to the Department of Labor pursuant to the terms of the proposal.
This Report examines and analyzes the laws and procedures in the U.S., Canada and Mexico that are utilized in the event of special, emergency or extraordinary circumstances associated with labor disputes. The Report is organized in three main sections, each devoted to one of the NAFTA countries. The implementation of such laws and procedures, court cases and decisions related to their application are discussed, as well as the use of injunctions and the involvement of state (provincial), municipal and other governmental authorities.
The legal systems of United States, Canada and Mexico recognize the importance of the rights of both employers and employees. Such rights include the right of employees to organize and engage in strikes and the right of employers to conduct lockouts. Although employer and employee rights are legally protected in each country, there are limits to the exercise of such rights including their exercise during times of national emergencies.
The legal framework in each of the three countries provides means for the national government to address emergency situations associated with labor disputes. The mechanisms differ but the results are similar. The authority available to the executive branch in emergency situations related to general labor disputes in the United States and Mexico is set forth in statutory law. In the United States, the Labor Management Relations Act (LMRA), authorizes the President, through the Attorney General, to halt a strike or lockout by seeking injunctive relief in the courts. In Mexico, the President has requisition authority by which control of the company subject to the strike is transferred to the Government without any need of court approval of such action.
In Canada, there is no permanent statutory authority for the Executive Branch to invoke emergency procedures in the event of a labor dispute. In the event of a national emergency, the Parliament of Canada addresses the emergency situation through special legislation. At the level of the provinces and territories, there are statutory laws setting forth procedures that address emergency situations created by labor disputes. However, the common approach in Canada at the level of the provinces and territories is to require an essential services plan in collective bargaining agreements.
In the United States, there are two federal laws that contain emergency procedures to end labor disputes: the Railway Labor Act (RLA), 1926, and the Labor Management Relations Act (LMRA), 1947. Both the LMRA and the RLA reflect a policy preference that the resolution of labor disputes should be left to the parties involved: labor and management. U.S. labor law creates statutory rights for both the employer and the employee, and creates or supports mechanisms that may be used by employers and employees to effectuate their rights, i.e. strikes and lockouts. Although the law clearly favors the resolution of labor disputes by the parties, the law also provides for government involvement in labor disputes in certain instances. In addition to the LMRA and the RLA, Congress retains the authority to intervene in labor disputes under the commerce provisions of the U.S. Constitution.
This discussion of U.S. law relating to special or emergency procedures affecting labor disputes begins by focusing on Subchapter III of the LMRA. Included in this discussion is a review of the statute's congressional purpose and its constitutionality. Subsequently, requirements for obtaining an injunction, the role of the court, the scope of available relief including the duration of the injunction, remedies for violating the injunction, and authority of state governments in labor matters are discussed.
The law in the United States providing general authorization to the President to intervene in strikes or lockouts in emergency situations is found in Title 29, Subchapter III, Sections 176 through 178 of the U.S. Code (all cites are to U.S.C. 2000). Section 176 states in pertinent part:
Section 176 grants significant discretionary authority to the President by allowing the initiation of an emergency procedure based upon the "opinion" of the President. If in the opinion of the President a strike or lockout, or a threatened strike or lockout, could imperil the health or safety of the nation, the President may appoint a board of inquiry to look into and report on the dispute.
The board of inquiry shall be composed of a chairperson and such other members as the President determines, and shall have the power to sit and act anywhere in the United States conducting hearings, in public or private, necessary or proper to ascertain the facts with respect to the dispute. 29 U.S.C. § 177. The board of inquiry, which the President may create under section 176 to ascertain the facts with respect to the causes and circumstances of a labor dispute, is an investigative body without adjudicative powers.(1) See U.S. v. International Longshoremen's Ass'n, AFL-CIO, 246 F. Supp. 849 (S.D.N.Y. 1964).
If the board of inquiry reports to the President and concludes that an actual or threatened labor dispute poses a risk to the national health or safety, section 178 authorizes the President to direct the Attorney General to petition the district court for an injunction: "Upon receiving a report from a board of inquiry the President may direct the Attorney General to petition any district court of the United States having jurisdiction of the parties to enjoin such strike or lock-out or the continuing thereof...." Section 178 grants the President significant latitude by enabling the President at his discretion to direct the Attorney General to petition the district court for an injunction.
Although the LMRA authorizes the President to ask a district court to enjoin a strike or lock-out under certain conditions, use of this provision is increasingly rare. An injunction under this provision has not been sought by the President since 1978 and has not been issued since 1972.
As discussed above, the law as set forth in Subchapter III §§ 176-178, provides the President with great latitude with regard to instructing the Attorney General to petition the district court for an injunction during a national emergency. See 29 U.S.C. § 178. Once the process has entered the injunction phase, a number of issues arise including: a) the requirements for obtaining an injunction; b) the jurisdiction of the court; c) the role of the court; and d) the meaning of key phrases such as "national health and safety" and "substantial part of an industry."
The law, in 29 U.S.C. § 178, grants jurisdiction to a district court to consider a petition for an injunction from the Attorney General if the district court finds certain facts to be true. Section 178 states in pertinent part:
The role of the court with regard to section 178 is limited and fulfilled by simply finding the requisite facts to be true or not true. In U.S. v. International Longshoremen's Ass'n, AFL-CIO, 246 F. Supp. 849 (S.D.N.Y. 1964), the court said, "Of cardinal concern for the court's consideration... is whether a strike or lockout, threatened or actual, affects an industry of the kind the statute describes, and in such a manner that, if permitted to continue, will imperil the national health or safety."
The issues that a court may consider when reviewing the petition from the Attorney General are strictly limited. The law prohibits a court from considering issues such as whether national labor policy is served, the availability or appropriateness of other remedies, the effect of the injunction upon the collective bargaining process and other general inquiries which might, under different circumstances, be appropriate. See id. Similarly, in United Steelworkers of America v. U.S., 361 U.S. 39, 80 S.Ct. 1, 4 L.Ed.2d 12 (1959), concurring opinion 361 U.S. 39, 80 S.Ct. 177, 4 L.Ed.2d 169, the Court held that Congress did not intend for judicial inquiries of that nature. The concurring opinion stated, "it is not for the judges to exercise conventional 'discretion'...."
The emergency procedures under the LMRA have been reviewed by the courts, and they have consistently deferred to the congressional purpose. In U.S. v. International Longshoremen's Ass'n, 177 F. Supp. 621 (S.D.N.Y. 1959), the court stated that the purpose of this provision was "to stay strikes or lockouts that would imperil the national health or safety, and to provide for a more speedy settlement of such controversies."
The United States Supreme Court addressed the congressional purpose in United Steelworkers of America v. U.S. In upholding an injunction, the Court commented, "The statute was designed to provide a public remedy in times of emergency...to see that vital production should be resumed or continued for a time while further efforts were made to settle the dispute." United Steelworkers of America v. U.S., supra, 41. "[T]he statute does recognize certain rights of the public to have unimpeded for a time production in industries vital to the national health or safety. It makes the United States the guardian of these rights...." Id. 43.
There have been a number of unsuccessful constitutional challenges to this statute which have involved issues such as justiciability, due process and first amendment rights. In U.S. v. International Longshoremen's and Warehousemen's Union (CIO), 78 F. Supp. 710 (N. D. Cal. 1948), the court found that the provisions of the Act were designed to cope with national emergencies and did not offend the First, Fifth, or Thirteenth Amendments (Constitution), relating respectively to the freedom of speech, due process of the law, and involuntary servitude.(2)
In U.S. vs. United Steelworkers of America, 271 F.2d 676 (3rd Cir. 1959), the circuit court held that the statute creates a right of the public to be protected from the danger of an actual or threatened strike or lockout which imperils national heath or safety. The court also stated that where there is such a strike or lockout, a case or controversy exists that is proper for the court to decide. This case was granted certiorari by United Steelworkers of America v. U.S., 361 U.S. 878, 80 S.Ct. 143, 4 L.Ed.2d 115, and affirmed by United Steelworkers of America v. U.S., 361 U.S. 39, 80 S.Ct. 1, 4 L.Ed.2d 12 (1959), concurring opinion 361 U.S. 39, 80 S.Ct. 177, 4 L.Ed.2d 169. In the concurring opinion, the Court stated that there could be no doubt that the function of the district courts under section 178 is within the "judicial power" as contemplated by Article III, Section 2 of the Constitution, and is one which Congress may confer upon the courts.
Courts have consistently deferred to the congressional purpose and to the judgment of the government in fulfilling that purpose when interpreting the provisions of section 178. For example, the terms "national health" and "safety" have been broadly construed. See U.S. v. Portland Longshoremen's Benev. Soc., Local No. 861, Intern. Longshoremen's Ass'n, AFL-CIO, 336 F. Supp. 504 (D.Me.1971). The court held that "national health" means economic health, which could include an effect on employment, on the nation's balance of payments, or on the delivery of food. See U.S. v. International Longshoremen's Ass'n, 293 F. Supp 97 (S.D.N.Y. 1968). National safety may include activities that affect, delay or inconvenience the military, NASA, the Atomic Energy Commission, or NATO allies and other security groups. See also United Steelworkers of America v. U.S., supra.
There is no need for the Government to wait until the national health or safety is actually impaired to petition for an injunction as clearly stated in the text of section 178 and affirmed by the courts. The fact that the national health or safety would be or could be impaired is sufficient. See U.S. v. International Longshoremen's Ass'n, AFL-CIO, 246 F. Supp. 849 (S.D.N.Y. 1964).
Courts have interpreted the phrase "affects an entire industry or a substantial part thereof" but have not defined what is meant by the phrase "substantial part thereof." Consequently, a determination of what a "substantial part thereof" means is made on a case-by-case basis. In U.S. v. National Marine Engineers' Beneficial Ass'n, 294 F.2d 385 (1961), the court found that a strike affecting less than half of United States Merchant Marines affected a "substantial part thereof" and justified an injunction. In U.S. v. Union Carbide Corp., 265 F. Supp 756 (D.D.C.1966), the court found that a local strike affecting the production of a particular military helicopter was sufficient to justify an injunction. (Emphasis added.) When a court attempts to determine whether a strike affects "substantial part thereof" of an industry, the key determining factor is not the number of people or plants involved, but the impact on the national health or safety.
The requirements that the Government must meet to succeed in a petition for an injunction are few. First, the President must request the board of inquiry to investigate and report on the issues of the dispute. See 29 U.S.C. § 176. After receiving the report of the board, the President directs the Attorney General to petition the district court for an injunction. See 29 U.S.C. § 178. The evidence produced to support the petition may include oral testimony, affidavits, expert testimony, and conclusive statements. In United Steelworkers of America v. U.S., supra, the concurring opinion indicated that district courts may give due consideration to the evidence and statements of the Government without requiring the Government to attest to such evidence in particularity. The Court also stated, "The statute was designed to provide a public remedy in times of emergency; we cannot construe it to require that the United States either formulate a reorganization of the affected industry to satisfy its defense needs... or demonstrate in court the unfeasibility of such a reorganization."
Once a district court makes the requisite factual findings under section 178 and determines that the actual or threatened strike or lockout will affect national health or safety, the court is required to issue an injunction. (Emphasis added). See U.S. v. Avco Corp., 270 F. Supp 665 (D. Conn. 1967). If the district court issues an injunction to restrain a strike or lockout, the injunction is applicable to the entire industry and extends beyond the jurisdictional limits of the district court. See Seafarers Int'l. Union of North America, Pacific Dist. v. U.S., 304 F.2d 437 (9th Cir 1962), certiorari denied 370 U.S. 924, 82 S.Ct. 1566, 8 L.Ed.2d 504. The function that the injunction serves is to maintain the status quo and preserve conditions as they were before the actual or threatened strike. See id. In addition, courts have the power necessary to enter such ancillary orders as are needed to effectuate and implement the basic injunction. See id. After an order for injunction has been issued, the parties must make every effort to adjust and settle their differences. See 29 U.S.C. §179(a). The parties are to use the assistance of the "Service" - meaning the Federal Mediation and Conciliation Service created under section 172; the service was created in 1947.
An injunction remains effective for a maximum period of 80 days in accordance with section 179(b). However, pursuant to section 179(b), the President may reconvene the board of inquiry during the injunction. At 60 days into the injunction, the board shall report to the President the parties' current positions. The NLRB shall, within the next 15 days, take a secret vote of the employees concerning their acceptance of the employer's last offer.
A supplemental order which has the practical effect of extending the 80 day period for which a strike or lockout may be enjoined, regardless of the facts, may not be ordered. See Seafarers Int'l. Union of North America, Pacific Dist. v. U.S., 304 F.2d 437 (9th Cir. 1962), certiorari denied 370 U.S. 924, 82 S.Ct. 1566, 8 L.Ed.2d 504. See Universal Shipping Corp. v. Local 953-Checkers & Tallymen Int'l. Ass'n, 294 F.Supp. 4 (D.Md. 1969).
If no voluntary settlement is concluded within the period of the injunction, the President is to report to Congress so that Congress may address the emergency issue through its legislative authority. See United Steelworkers of America v. U.S., supra.
In addition to the specific sections of the LMRA, the Railway Labor Act (RLA)(3) authorizes the Federal Government to halt labor disputes in emergency situations. The RLA, in 45 U.S.C. § 160, governs the appointment of an Emergency Board by the President during certain labor disputes.
Unlike the LMRA, which provides general authorization to the President to halt labor disputes in any industry because of the dispute's potential effect on the national health or safety, the RLA authorizes such involvement only in labor disputes of railway or air carriers that transport commerce within the United States. See 45 U.S.C. §§ 151-81.
Under section 156 of the RLA, neither labor nor management may change rates of pay, rules, or working conditions(4) with regard to existing agreements and practices without first filing a notice. This notice initiates the bargaining period between the parties(5) and requires establishing a time and location for the initial bargaining session. RLA section 156 sets forth the procedures for changing certain terms and conditions of employment, stating in pertinent part:
After the notice of the intended change is served, the parties may confer among themselves to resolve matters related to the intended change or they may solicit the services of the National Mediation Board (NMB)(6) to help resolve the disputed change. If the NMB(7) is solicited, the NMB shall communicate with the parties and attempt to resolve the dispute through mediation. If mediation fails to bring about an amicable solution, the NMB shall seek to persuade the parties to submit to arbitration. If arbitration is refused by one or both parties, the NMB shall notify both parties that its resolution efforts failed, and that no changes in the rates of pay, rules, working conditions, or established practices (in effect prior to the time the dispute arose) shall be made for a period of thirty days. See 45 U.S.C. §155.
After the notice of intended change, while the parties are meeting among themselves or the services of the NMB are being utilized and for specified periods thereafter, no changes in the rates of pay, rules or working conditions may be made. Section 156 states in pertinent part:
Thus, throughout the mandatory period of bargaining and 10 days thereafter, or throughout the mediation/arbitration process as facilitated by the NMB and 30 days thereafter, no changes may be made in existing rates of pay, rules or working conditions. This "status quo" aspect of the RLA works a deliberate and harsh effect on the parties; it prevents the parties from engaging in self-help(8) and creates in the party seeking the change an incentive to compromise. See Detroit, Toledo & Shore Line R.R. v. United Transport. Union, 396 U.S. 142, 150 (1968). The status quo aspect is particularly effective if the NMB is involved, because it is entirely within the discretion of the NMB as to the length of time devoted to mediation.
Section 160 of the RLA authorizes the President to appoint an Emergency Board if certain requirements are met; it states in pertinent part:
The requirements to notify the President are therefore (1) that the dispute is unsettled and (2) that, in the NMB's judgment, the dispute substantially threatens to interrupt interstate commerce. The President then has unlimited discretion to create a board(9) to investigate and report on the dispute.
Once the Emergency Board is created, it investigates the facts of the dispute and makes a report to the President within thirty days from the date the Board was created. See 45 U.S.C. § 160. During this period of investigation, and for thirty days thereafter, no changes may be made in current rates of pay, rules or working conditions. The effect of the Emergency Board is to extend the status quo for an additional sixty days (thirty days during the Emergency Board's investigation and thirty days thereafter). The Emergency Board's decisions are not binding on the parties, and either party may initiate self-help after the thirty-day period following submission of the Board's report to the President. See Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378-379 (1969). Although the Emergency Board is the final dispute resolution mechanism under the RLA, Congress maintains the authority to resolve these ongoing disputes by either (1) requiring further bargaining, (2) imposing the Emergency Board's solution, or (3) imposing binding arbitration. See Wilson v. New, 243 U.S. 332, 351-352 (1917). See Maine Cent. R.R. v. Maintenance of Way Employees, 835 F.2d 368, 371 (1st Cir. 1987). See Locomotive Eng'rs v. Chicago, Rock Island & Pac., 382 U.S. 423, 431-433 (1966). See United Transp. Union v. United States, 987 F.2d 784 (D.C. Cir. 1993).
The RLA authorizes the NMB and the President to facilitate labor dispute settlements before the parties' initiate traditional self-help measures. Congress retains the ability to facilitate or impose dispute settlement. If the dispute remains unresolved and neither the NMB, the President, nor the Congress have chosen to step in, then, and only then, may parties implement traditional self-help measures.
On August 21, 1986, the 99th Congress attempted to resolve a labor dispute between the Maine Central Railroad Company and Portland Terminal Company by extending the status quo period of section 10 of the RLA for an additional 60 days in order to allow the parties to resolve the issues themselves through additional bargaining. See Act of Aug. 21, 1986, Pub. L. No. 99-385, 100 Stat. 819. When the extension did not provide the desired effect, Congress mandated a solution. On September 30, 1986, Congress imposed the recommendations of the Emergency Board and required binding arbitration of any unresolved issues concerning the dispute. See Act of Sept. 30, 1986, Pub. L. No. 99-431, 100 Stat. 987. Both congressional actions were challenged and held to be constitutional. See Maine Central R.R. v. BMWE, 873 F.2d 425 (1st Cir. 1989). See Maine Central R.R. v. BMWE, 813 F.2d 484 (1st Cir. 1987).
On April 18, 1991, the 102nd Congress resolved a labor dispute by creating a Special Board.(10) The Special Board was required to review and adjust (if needed) the recommendations of the Presidential Emergency Board. The Special Board was then required to issue its final determination, which would be binding on all parties. See Act of April 18, 1991, Pub. L. No. 102-29, 105 Stat. 169. This determination also was challenged on the basis that it was unconstitutional, but ultimately it was held to be a legitimate exercise of congressional power to regulate commerce under the Constitution. See United Transp. Union v. United States, 987 F.2d 784 (D.C. Cir. 1993).
In the context of rail commuter services, the RLA references the authority of state governors to request that the President establish an emergency board. See 45 U.S.C. § 159a(b). The emergency board under this section of the RLA has 60 days to resolve the dispute. At the end of the 60 days, if there has been no settlement between the parties, the National Mediation Board will conduct a public hearing where the parties will explain why they have not accepted the recommendations of the emergency board for settlement of the dispute. See 45 U.S.C. § 159a(d). If no settlement to the dispute is reached in 120 days from the creation of the emergency board, any party to the dispute or the Governor of any State through which the service in the dispute is operated may request the President to establish a second emergency board. See 45 U.S.C. § 159a(e). Within 30 days of the establishment of the second emergency board, parties to the dispute must submit final offers for settlement of the dispute. See 45 U.S.C. § 159a(f). Within 30 days of these submissions, the emergency board submits to the President its selection of the most reasonable offers. See 45 U.S.C. § 159a(g). Protections are included in the Railway Labor Act to encourage the parties to the dispute to accept the decision of the second emergency board and to avoid continued or future work stoppages. See 45 U.S.C. § 159a(h)-(j).
Apart from provisions such as in the RLA, limited authority to regulate labor-management matters resides with the states. This limited authority derives from the Constitution, providing that authority to regulate not withheld from the states or granted to the Federal Government resides with the states. See U.S CONST. Amend X.
Provisions of the National Labor Relations Act (NLRA) disallow concurrent state regulation of peaceful strikes or lockouts, because Congress foreclosed such activity to state regulation. See Amalgamated Ass'n of St. Elec. Ry. & Motor Coach Emp. Of America, Division 998 v. Wisconsin Employment Relations Bd., 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364 (1951). Despite the scope of the NLRA, limited authority with respect to labor disputes, however, remains with the states. States have the authority to prohibit violence and enforce contracts even if the dispute arises under a NLRA claim. In Standard Oil Company v. Oil, Chemical & Atomic Workers International Union, AFL-CIO, 144 N.E.2d 517 (Ohio 1957), the court said a state could step in and grant injunctive relief in situations of unlawful violence, even if an unfair labor charge could be filed. "[T]raditionally the states have been the guardians of public peace." Id. at 523.
Individual states may also address labor issues not covered by federal labor law. See id., 525-526. In American Radio Assoc., AFL-CIO v. Mobile Steamship Assoc., Inc., 279 So. 2d 467 (1973), the Supreme Court of Alabama stated, "where there is a clearly defined labor dispute affecting commerce the NLRB has jurisdiction preemptive of all courts... where the dispute is one, where commerce, as defined by the federal act, is not involved, and the resulting effect... of the dispute immediately endangers the business activities of a large segment of the area's population, we think that it is neither illegal nor improper for the court to take jurisdiction and deal temporarily with the subject matter." Although such an instance would be rare, it is possible that a state court could issue an emergency injunction in situations where the disputing parties are not covered under federal labor law.
Under the Canadian Constitution, jurisdiction over labor-management matters belongs exclusively to the Parliament of one level of government (provincial or federal), and that Parliament alone has the authority to adopt legislation governing employment and/or labor matters within its territory. In principle, it is the provincial (or territorial) government that holds exclusive jurisdiction over employment matters. Consequently most undertakings in Canada are subject only to the labor laws of the province or territory in which the activities are being carried out. Exceptionally, however, some specific undertakings have been declared subject to the exclusive jurisdiction of the Parliament of Canada. Article 92 of the Constitution Acts of 1867 and 1982(11) provides that:
However, article 91 of the Constitution Acts of 1867 and 1982 provides that the Parliament of Canada has the sole authority:
This Report discusses the various legal mechanisms chosen by governments in Canada to respond to the negative impact of certain labor disputes. These mechanisms have included: a) legislation on essential services; b) legislation limiting the conflicts in the context of a first collective agreement bargaining; c) legislation limiting the right to strike in some sectors; and d) special "back-to-work" legislation.
The approach to enacting or enforcing such legislation may be influenced by the type of controlling legislation regulating the right to use replacement workers during a strike or a lock-out. Provinces such as Québec, British Columbia, Manitoba, as well as the Yukon and Northwest Territories have enacted legislation containing a strict prohibition on the use of any replacement workers during a strike or a lock-out. Provinces such as Alberta, New Brunswick, Newfoundland, Ontario, Prince Edward Island, Saskatchewan and Nova Scotia allow the use replacement workers during a labor conflict. The Canada Labour Code(12) does not prohibit the use of replacement workers during a labor dispute, but legislation has been proposed that would greatly limit the right to use such workers during the strike or lock-out of employees subject to the Canada Labour Code.
Historically, when public employees went on protracted strikes and thus deprived the public of services considered important or essential, "back-to-work" legislation was the legal mechanism used to force the return to work of the striking employees. Such special laws have been enacted in the context of legal or illegal strikes in a variety of sectors such as postal services, nursing and pharmaceutical services in hospitals, ambulance services, electricity services, and maintenance and waste collection services in buildings managed by public organizations.
Such "back-to-work" legislation typically contains penalty provisions for violations of the law including the following: a) fines for the individual, the union or the employer; b) salary reductions for the employees; and c) the loss of seniority rights for employees. For example, in 1997 the Federal Government enacted the Act to Provide for the Resumption and Continuation of Postal Services,(13) which forced the return to work of striking postal workers, extended the term of the expired collective agreement until a new agreement entered into force, prohibited any new lock-out or strike, and appointed a mediator-arbitrator to act as "conciliator" between the union and the employer and to decide the terms of a new collective agreement. The law specifically stipulated that the mediator-arbitrator:
The law also contained wage increases to be incorporated in the new agreement. Violations of this law are punishable with fines of $1,000 per offence for individuals; $50,000 per offence for individuals acting in the capacity of an officer or representative of the employer or of the union; and $100,000 for violation by the Union or the employer, for each day or part of day during which the offence continued.
Similar laws were enacted by provincial legislatures. For example, in Québec, the 1990 Act to Ensure Continuity of Electrical Service by Hydro-Québec(14) forced the return to work of striking Hydro-Québec employees and imposed the terms and conditions of the new collective agreements. The law contained a clear prohibition of a strike or lock-out and imposed significant penalties for violation of its provisions, including:
In recent years, however, many provincial and territorial governments have adopted a more preventive approach under which "essential services" must be maintained notwithstanding any strike or lock-out. Because of such legislation, the need to force the return to work by enacting a law imposing the end of a strike should be less frequent. In addition, "back-to-work" legislation should now be limited to instances involving illegal strikes where the "normal legal process" proves to be insufficient or inadequate.
In 1999, nurses in Québec declared an illegal strike during negotiations with the Québec Government. Even though basic "essential services" were maintained, the duration of strike resulted in very long delays and/or cancellation of many non-urgent health care services normally provided to the public. The Québec Government reacted by adopting the Act Respecting the Provision of Nursing and Pharmaceutical Services,(16) forcing the immediate return to work of all the striking nurses and imposing severe fines, salary reductions and loss of seniority rights for all the nurses who violated the law.
The strike ended as a result of this legislation, and the nurses who were penalized continue to object to the penalties that were imposed on them, both financially and with regard to their seniority. Through this legislation, the government sent a strong message that illegal strikes are not tolerated and are costly for the employees and the unions involved.
To avoid serious situations that may result from strikes or lock-outs in key sectors, most of the provinces, with the exception of Saskatchewan and Nova Scotia, have adopted legislation which requires the maintenance of essential services in the event of a strike or lock-out. In most instances, such legislation applies to public servants or employees working in public services. Legislation pertaining to essential services may take two different approaches: a) the right to strike or lock-out may simply be abolished; or b) the law may require the maintenance of essential services notwithstanding any strike or lock-out.
Depending on the jurisdiction, legislation differs with regard to the nature of the services to which the law applies, the employees affected, and the procedure to be followed in order to establish how many employees and which services must be maintained.
Another approach taken by governments to limit the negative impact of labor disputes is to restrict the right to strike or lock-out during the early stages of an employer/union relationship. In a variety of jurisdictions, governments have adopted legislation providing for arbitration to determine the terms of the first collective agreement, when such an agreement cannot be reached.
The Canada Labour Code authorizes the Federal Minister of Labor to direct the labor board to inquire into a labor dispute and, on the recommendation of the board, to determine the terms and conditions of the first collective agreement. In Newfoundland, the provincial Minister of Labor may, upon request by either party and review of the matter, direct the labor board to inquire into a labor dispute and determine the terms and conditions of the first collective agreement.
In British Columbia, Manitoba, Ontario, Québec and Saskatchewan, the labor codes provide that the parties engaged in negotiating their first collective agreement have the opportunity to enter into a mediation or conciliation process if they are unable to reach the first collective agreement. The role of the mediator or conciliator varies from one jurisdiction to the other. In addition, if the conciliation or mediation process fails, the labor codes of British Columbia, Manitoba and Québec allow either party to request an arbitration process to determine the terms and working conditions to be included in the first collective agreement. Once the arbitrator has confirmed that he/she will determine the terms of the agreement, the employees are not permitted to strike nor continue to strike, and the employer is not permitted to lockout nor continue to lockout employees.
The Labour Relations Code of Alberta(17) provides that, if in the opinion of the Lieutenant Governor in Council of Alberta, an emergency arising out of a labor dispute exists or may occur in such circumstances that damage to health or property is being caused or is likely to be caused because a sewage system plant or equipment, or water, heating, electrical or gas system plant or equipment has ceased to operate or health services have been reduced, have ceased or are likely to be reduced or to cease, he may issue an order determining that any strike or lockout is deemed illegal and is an offence under the Labour Relations Code of Alberta.
When an order is issued, the Minister of Labor of Alberta must establish a procedure for the settlement of the dispute (such as prescribing terms and conditions of employment) and use all available means necessary to settle the dispute. To settle a dispute, the Minister may establish a public emergency tribunal whose decision will be binding on the parties. The decision of this tribunal will then form part of the collective agreement.
Once a strike has been declared illegal, the parties to the dispute may not alter the terms and conditions of employment that existed immediately prior to the dispute or that are prescribed by the Minister. However, with the consent of the union's bargaining agent, the employer may give effect to a proposed change in wages or hours of work.
In British Columbia, if a dispute arises after collective bargaining has commenced, either of the parties to the dispute may request the chair of the labor board to investigate, or the chair on his or her own motion may investigate, whether or not the dispute poses a threat to the health, safety or welfare of the residents. See Labour Relations Code of British Columbia.(18)
If after receiving the chair report or on his own initiative, the Minister of Labor in British Columbia considers that a threat to the health, safety or welfare of the residents exists he may direct the labor board to designate as essential services those facilities, productions and services that the labor board considers necessary or essential to prevent the immediate or threatened danger to the health, safety or welfare of the residents.
When the Minister directs the labor board to act under these circumstances, one or more mediators may be appointed to assist the parties in negotiating an agreement on essential services designations. The mediator must report to the chair within 15 days of his appointment. The board must then, within 30 days of receiving the report of a mediator, designate which facilities, production and services are essential services.
In the event the Minister undertakes such an action before a strike or lockout has commenced, the parties must not strike or lockout until the essential services have been defined by the Board. If the Minister's direction to the board occurs after a strike and lockout has commenced, the parties may continue to strike or lockout, subject to the designation of essential services made by the board.
Once the labor board has designated facilities, production and services as essential services, the employer and the union must fully supply, provide or maintain such facilities, productions and services and must not restrict or limit a facility, production or service so designated. A designation may be amended, varied or revoked and another made in its place.
Under the Essential Services Act of Manitoba,(19) "essential services" mean services that are necessary to enable the employer to prevent danger to life, health or safety, the destruction or serious deterioration of machinery, equipment or premises, serious environmental damage, or disruption of the administration of the courts or of legislative drafting.
The Act applies to every union, employer and employee covered by a collective agreement between a union and an employer, in both the public and private sectors. The Government of Manitoba is also bound by this Act. This law takes precedence over any other Act, regulation, collective agreement, arbitral or other award or decision and every obligation, right, claim, agreement or arrangement of any kind. If the employer and the union do not have an essential services agreement under this Act relating to employees covered by a collective agreement, the employer and the union must, at least 90 days before the expiration of the collective agreement, begin negotiations on an essential services agreement. For purposes of the essential services agreement, any employer other than the Government of Manitoba must, upon beginning negotiations, inform the union and identify which of the employer's services are to be considered essential services.
If an employer and union have not concluded an essential services agreement during the 30-day period before expiration of a collective agreement, the employer may, on its own initiative, or shall, at the request of the union, provide notice to the union setting out the list of essential employees. In the event or threat of a work stoppage, the employer shall, if no essential services agreement is in effect under this Act, provide notice to the union setting out: a) the classifications of employees who must work during the work stoppage to maintain essential services; b) the number of employees in each classification who must work during the work stoppage to maintain essential services; c) the names of the employees within those classifications who must work during the work stoppage to maintain essential services; and d) in the case of an employer other than the Government of Manitoba, the essential services that must be maintained. The union may apply to the labor board to modify that list. Upon receipt of such an application, the board may conduct any hearing or investigation and may amend, modify, revoke or replace the list or any order previously made.
A notice to terminate an essential services agreement may be given if the employer and the union have a collective agreement in effect and if the notice to terminate the agreement is provided by the employer to the union or by the union to the employer at least 100 days before the expiration of the collective agreement.
In New Brunswick, the relevant labor laws are not as detailed as those in many other provinces. The Public Service Labour Relations Act(20) provides that nothing in the Act shall be construed as to require the employer to do or refrain from doing anything contrary to any instruction, direction or regulation given or made on behalf of the government in the interest of the health and safety or security of the people of the province, the protection of data processing equipment owned by the province, or the protection of heating plants and other buildings owned by the province from loss of heat.
If any instruction, direction or regulation is given or made during a lawful strike, striking employees who are required to work in accordance with the instruction, direction or regulation will be required to work, but only those hours required in order to comply with the said instruction, direction or regulation.
In Newfoundland, legislation pertaining to essential services or limited right to strike is not as extensive as it is in other provinces. When the Lieutenant Governor in Council of Newfoundland receives evidence that, if a strike or lockout continues, it would pose a threat to an industry (public as well as private enterprises), the Lieutenant Governor may issue an order requiring the bargaining agent representing the unit of employees who are on strike or lockout to conduct a secret ballot to determine the employees' wishes to resume work.
In the petroleum industry, a strike or a lockout on a platform may not be declared until the parties to a collective agreement have entered into an agreement on the workforce requirements and procedures necessary to ensure the orderly and safe shutdown and maintenance of the platform. If the parties fail to reach an agreement 90 days prior to the expiration of the collective agreement, either party may apply to the labor board which will, after examination, determine the terms and conditions of such an agreement.
In Ontario, the provisions pertaining to essential services are found in the Crown Employees Collective Bargaining Act.(21) This law applies only to public servants. The definition of "essential services" as set forth within the Act is broad and includes services necessary to permit the employer to prevent danger to life, health and safety, destruction or serious deterioration of machinery equipment, serious environmental damages or disruption of the administration of the courts or of legislative drafting.
An employer of Crown employees and a trade union representing Crown employees who have negotiated or are negotiating a collective agreement must conclude an essential services agreement that defines essential services, as well as the number of employees and the positions which are necessary to enable the employer to provide such services. The agreement must contain similar provisions applicable in cases of an emergency.
If the parties do not have an essential services agreement, they shall begin to negotiate one at least 180 days before expiration of the collective agreement. At any time after the parties are required to begin negotiations, each party may request the Minister of Labor of Ontario to appoint a conciliation officer to confer with the parties and endeavor to effect an essential services agreement. In addition, on application by one of the parties, the labor relations board shall determine any matters that the parties have not resolved. In doing so, the labor relations board may: a) determine any matters to be included in the essential services agreement; and b) order that terms specified by the labor relations board be deemed to be part of an essential services agreement between the parties and that the parties are deemed to have entered into an essential services agreement. A party to an essential services agreement may apply to the labor relations board to amend the agreement. Such request will be reviewed by the labor relations board, which may amend the agreement or make such other orders as the board considers appropriate.
The law allows a party to terminate an essential services agreement by giving a written notice to the other party, as long as there are at least 180 days left in the term of the collective agreement. Further, an essential services agreement shall not, directly or indirectly, prevent the employer from using another person to perform any work during a strike or lockout.
In Prince Edward Island, there is no specific statute regarding essential services. The only reference to essential services is found in the Labour Act(22) which provides that no member of the police force employed in any city, town or incorporated community, nor any person being a full-time employee of any fire department, nor any hospital employee has the right to strike or to engage in any stoppage of work.
In the Province of Québec, the law regarding essential services is comprehensive and well-developed. The relevant provisions are found in the Labour Code(23) and in the Act to Ensure that Essential Services are Maintained in the Health and Social Services Sector.(24) For the purpose of essential services, "public services" include any:
In 1999, a strike of maintenance workers occurred in the public housing system that continued for a protracted period of time. The Government addressed the negative impact of the strike by adopting a special law which declared such services to constitute a "public service" within the meaning of the legislation pertaining to essential services. See the Act to Ensure that Essential Services are Provided in the Office Municipal D'habitation de Montréal.(26) As a result of the legislation, basic cleaning and garbage pick-up services resumed in the buildings concerned and the impact of the strike was greatly diminished. The legislation also contributed to an eventual agreement on the terms of a new collective agreement.
If the Government believes that a strike or lockout involving a public service might endanger the public health or public safety, it may issue an order (upon recommendation from the Minister of Labor of Québec) requiring an employer and a certified association to maintain essential services. Such an order suspends the exercise of the right to strike until the parties have negotiated which essential services must be maintained in the event of a strike. The process is as follows:
Employees of a public service may declare a strike only if they have acquired the right to strike and if prior notice of their intention to go on strike has been given to the Minister and the employer, and to the Council if the government is of the opinion that a strike may endanger the public health or public safety. Such prior notice must be in writing, and provided not less than seven juridical days before the contemplated date of the strike.
When the Government believes that a strike may endanger the public health and public safety, no strike may be declared unless an essential services agreement has been forwarded to the Council at least seven days in advance, or unless a list has been forwarded to the Council and to the employer not less than seven days before the contemplated date of the strike.
Upon the recommendation of the Minister of Labor, the Government may suspend the right to strike if it believes that the essential services provided for or actually rendered when a strike is threatened or in progress are insufficient and that the public health or safety is endangered. The suspension is effective until the Government is satisfied that, if the right to strike is exercised, the provision of essential services will be sufficient.
In Québec, police officers and firemen working for a municipality or an inter-municipal management board do not have the right to strike nor can they be locked out. If negotiations for a collective agreement reach a stalemate, the Labour Code provides for an arbitration process under which the terms and conditions to be included in the collective agreement will be determined by an arbitration board.
Under the Public Service Act of the Northwest Territories,(27) "essential services" mean those services that are necessary to ensure a minimum level of health and safety of the public, to prevent destruction or serious deterioration of machinery, equipment or premises or to prevent disruption of the administration of the courts.
Within 20 days after notice to bargain collectively has been given or within a time period agreed upon by the parties, the employees' association and the Minister's representatives shall make reasonable efforts to enter into a written agreement that identifies the essential services that must be provided during a strike and sets forth the number of employees necessary to provide these essential services and identifies the positions. Such an agreement must also address unanticipated emergency situations.
In the event the parties are unable to reach an agreement within 20 days, an arbitrator is appointed. Once an essential services agreement is reached, the Minister of Labor notifies each employee who may be required to work during a strike or to respond to an emergency situation. Such employees, after being notified by the Minister, may not strike.
The Public Service Staff Relations Act of Yukon(28) provides that within 20 days after notice to bargain collectively is given to either of the parties, the employer shall furnish to the labor board and to the bargaining agent a written statement identifying the employees or classes of employees whose duties, in the opinion of the employer, are necessary for the safety and security of the public or public buildings.
If an objection to such a statement is filed with the labor board by the bargaining agent, the board will consider the objection and provide each party an opportunity to respond. The labor board will then determine which employees or classes of employees are "designated employees" for purposes of this Act. The decision of the labor board is final and binding, and the designated employees must continue to provide the required services, notwithstanding any strike or lock-out.
The Mexican legal framework governing labor relations is based in the Mexican Constitution which expressly acknowledges the right to strike.(29) Individual and collective labor relationships are specifically regulated by the Federal Labor Law (FLL).(30) The FLL embodies traditional Mexican public policy emphasizing the importance of the rights of employees with respect to employers and is based on the belief that the employee is the weaker party in the employer-employee relationship.(31) While the right to strike is guaranteed by the Constitution, a strike may be prohibited if it creates or threatens to create a national emergency. In such cases, the legal mechanism available to the Mexican Government to halt the labor dispute is the requisition process. The requisition process was the process by which the Mexican Government halted the strike of airline flight attendants employed by Aerovías de México, S.A. de C.V. (Aeromexico)(32) in 1998. On June 1, 2000, the Mexican Government again requisitioned Aeromexico after a strike was called by the Asociación Sindical de Sobrecargos de Aviación de México (Association of Flight Attendants of Mexico, ASSA).
An examination of the law relating to the emergency procedures involved in halting a strike involves the following: a) the Constitution of Mexico;(33) b) the FLL; c) international treaties and conventions, such as the North American Agreement on Labor Cooperation (NAALC);(34) d) the Law Governing the General Routes of Communication (Ley de Vías Generales de Comunicación) (LGRC);(35) e) court decisions; and f) implementing labor regulations.
Employees have the right to strike suspending work(36) in order to: a) achieve a balance among the factors of production by reconciling the rights of labor with the rights of capital; b) obtain agreement with respect to a collective labor contract and demand its revision and renewal at the end of its term of enforceability; and c) demand compliance with a collective bargaining agreement, among others.(37) In Mexico, a strike is understood as a temporary suspension of work carried out by a coalition of employees.(38)
In the FLL itself, there are limits on the right to strike, such as the provision requiring certain employees to continue working after the initiation of a strike. After suspension of work and after holding hearings with the parties, the Mexican Conciliation and Arbitration Board may determine that a certain number of employees are needed to continue working in order to carry out activities necessary to avoid jeopardizing the safety and maintenance of the place, machinery, raw material or the work as a whole.(39)
A treaty such as the NAALC is considered national law in Mexico.(40) The Constitution of Mexico provides that "the Mexican Constitution, the Laws of the Congress of the Union which are derived therefrom (i.e., the FLL, LGRC and Ley de Aviación Civil (Civil Aviation Law)),(41) and all treaties (i.e., NAALC) shall be the supreme law throughout the Union."(42) The laws of the Congress of the Union which are derived from the Constitution are known in Mexico as Leyes Orgánicas (Organic Laws, e.g., Organic Act of Petróleos Mexicanos and its Subsidiary Entities) and Leyes Reglamentarias (Regulatory Laws, i.e., the FLL). Organic and regulatory laws implement constitutional principles in order to clarify and apply those principles.(43) Treaties and federal organic and regulatory laws are rooted in the same hierarchical order.(44)
When addressing a question regarding the hierarchy of law that might arise in a matter involving a conflict between federal legislation and a treaty, the approach a Mexican court may have to follow may differ greatly from the approach a U.S. court might be required to follow. For example, if the U.S. Congress approves legislation that becomes law and that law conflicts with provisions of a treaty that the U.S has approved, the new law is binding on U.S. courts despite the provisions of the treaty because of the last-in-time rule.(45) However, if the Mexican Congress passes legislation that conflicts with provisions of a treaty that the government of Mexico has approved, the legislation will not effectively void conflicting treaty provisions, because Congress does not have the authority to nullify treaty commitments by means of statutory legislation.(46) A Mexican federal law can not repeal a treaty, and the Mexican Constitution expressly provides that: "In the interpretation, change, or repeal of laws or decrees, the same procedure shall be followed as that established for their enactment."(47)
In the United States, a treaty and federal law have the same weight of authority, and the last-in-time rule governs. In Mexico, the last in-time-rule is applicable with respect to laws having the same weight of authority and having been enacted by the same process (i.e., NAALC and another treaty; the FLL and the LGRC). As a result, Mexican courts would give effect to the provisions of a treaty despite subsequent contradictory legislation.(48) Whether provisions of a treaty can nullify laws passed by Congress, however, is an open question given the fact that a treaty needs only the approval of the Mexican Senate to become law.(49)
In Mexico, the only legal mechanism available to the Executive Branch in the event of an emergency situation created by a labor dispute is the requisition process. A requisition is a unilateral administrative act carried out by a governmental entity and imposed on an individual or legal entity exclusively in emergencies involving the public interest.(50) The requisition has its origins in Europe, primarily in the context of military needs for items, such as food, shelter, transportation and personal services.(51) Requisitions are also used in situations involving a serious threat to the public order or health.(52)
In Mexico, requisitions have been recognized as appropriate in the following situations:
1. Military. A requisition is carried out by the military and can only be utilized during war in order to satisfy the army's needs, and only in the event that such needs cannot be satisfied by any other means.(53) The Mexican Constitution provides that:
2. Administrative. A requisition is carried out by public administrative entities in order to protect the public order and safety, or in the event of an epidemic or floods or any other disaster requiring immediate attention.(55) Administrative requisitions may include the following:
a) Personal Services. Under Mexican law, the requisition of personal services is null ab initio. Article 5 of the Constitution, provides: "No one can be obligated to provide his/her personal services without fair payment and without his/her full consent..."(56)
There are, however, personal services that individuals are obligated to provide to the State, such as those involving: a) army and juries; b) public election positions; and c) professional services of a social character.(57) These personal services that individuals may be required to perform are obligations established in the Mexican Constitution and are not considered part of a requisition mechanism.
The only instance where personal services placed in service of the government might be considered as part of the requisition process are those related to the armed forces because such services might be required: a) for the protection of the public order; and b) only in emergencies. The personal services required by the government that are associated with public election positions and professional services of social character are not normally required because of an emergency situation and, therefore, are not considered part of the requisition process.(58) Personal services may be required as incidental to a requisition of real estate and/or personal property carried out under specific legislation such as the LGRC.
b) Property in Fungible Things. Requisition of property may involve fungible goods, such as food, clothes, fuel, etc.(59) In requisitions of this kind, the government acquires title to the property in order to assign such property to persons in need because of an emergency. The scope of the government's requisition order must be general and not directed toward a specific individual or piece of property. Mexican Law prohibits the use of a requisition as a means to take the property of a particular individual. Further, a requisition order must refer to goods in general (i.e., bread and milk) and not to specific goods.(60)
c) Use of Real Estate and/or Non-Fungible Personal Property. Requisitions imposed on real estate or non-fungible personal property must comply with two primary requirements. A requisition for the use of real estate or such personal property must arise only in an emergency and may be in effect for only a limited period of time. Therefore, after the conclusion of the emergency, real estate and personal property that has been requisitioned shall be returned to their owners.(61) Further, under the Mexican legal system, the requisition of real estate and such personal property must be set forth in laws promulgated by the Mexican Congress,(62) such as the: a) LGRC;(63) b) Civil Aviation Law;(64) c) Ley General de Salud (the General Law of Health);(65) and d) Ley de Expropiación (the Expropriation Law).(66) The scope of a requisition is described in article 112 of the LGRC, which provides that:
The LGRC regulates the general "routes of communication" and the means of transportation using them. The LGRC, like the FLL and the Civil Aviation Law, is applicable throughout Mexico.(68) The SCT is responsible for administering the LGRC which includes the administration of the routes of communication, the means of transportation, as well as concessions such as the one granted to Aeromexico.(69)
A requisition by the Government of Mexico of the general means of communication, the means of transportation (auxiliary services, accessories and departments), movable goods and real estate is permissible under law only if: a) there is a need due to reasons of security, defense, economy or tranquility of the country; and b) there is, or there is believed to be, a threat of war, serious breach of the peace or imminent danger to the interior peace of the country or to the national economy.
The Mexican government (i.e. SCT) is authorized to require the services of employees of a requisitioned company that operates a route of communication and the means of transportation when it deems such services necessary. The government must compensate the persons affected by paying them actual damages in terms of the real value of the assets, and consequential damages less fifty percent.(70)
A strike affecting a company operating routes of communication and the means of transportation using them can have a wide impact including isolating the people living in various regions of Mexico. Consequently, the government may order a requisition of such a company in order to safeguard communication and transportation services throughout Mexico.
The Mexican government has requisitioned communications services on three occasions. These requisitions took place during the administration of President José López Portillo.(71) There have been no other requisitions since then except the requisition of Aeromexico in May 1998 and in June 2000. The three requisitions listed below were carried out in accordance with Article 89, Section I of the Constitution and Article 112 of the LGRC (the requisitions were made in response to strikes called by the employees of several companies operating as means of communications). These strikes involving communication services were deemed to be a threat to the national security and economy, and the government believed it necessary to address the threat:
All of the above requisitions involved the appointment of a general manager to manage the assets requisitioned so that the company could continue working efficiently, in the understanding that all expenses of the management would be the responsibility of the company. Further, the general manager could use the services of the companies' personnel in accordance with the collective labor agreement. Finally, these requisitions were effective until the Federal Government determined that the reasons for the original requisition were non-existent.
As with previous cases, the requisition of Aeromexico was ordered by the Mexican government because it believed that the effect of the strike resulting in a halt in air transportation services posed a threat to the nation. The threat to the nation consisted in the impact that the strike had on other sectors of the economy, the harm to the conditions of quality, opportunity, and uniformity of air transportation services, the supply of basic products, and the resulting isolation of important regions of the country.(75)
The requisition order was issued in accordance with Section I, Articles 27 and 89 of the Constitution; Articles 2, 3 and 112 of the LGRC; Articles 1 and 83 of the Civil Aviation Law; and Article 36 of the Organic Law of the Federal Public Administration. All of them are considered to have significant legal authority in Mexico.(76) As in the previous requisitions, a general manager was placed in charge of managing the assets and empowered with all faculties needed to have Aeromexico continue working efficiently, having at the same time the power to continue using the services of the actual companies' personnel or use different personnel. The requisition was ordered after largely unsuccessful meetings were held between Aeromexico and ASSA that included officials from the Secretariat of Labor and Social Prevention (Secretaría del Trabajo y Prevención Social) acting as conciliators.(77) The FLL, the LGCR, the Civil Aviation Law and the NAALC are all considered law in Mexico and are binding on: a) Federal, State and Municipal entities; and b) private individual and legal entities. The Mexican government including the President shall observe such treaties and federal statutes preserving the national security and economy of Mexico at all times. The President of Mexico has the power and obligation to administer and execute the laws (i.e., FLL; LGRC; and Civil Aviation Law).(78)
The respective legal frameworks in the United States, Canada and Mexico provide a means for each of the national governments to address emergency situations associated with labor disputes. The mechanisms differ but the results are similar.
In the United States, the LMRA sets forth the legal procedures that the federal government must follow in the event it believes that a labor dispute has created or threatens to create a national emergency. The law grants significant authority to the President to halt a strike or lockout. In interpreting the law, the courts have deferred to the President and have rejected all constitutional challenges to the law. The emergency procedures involve injunctive relief that cannot extend beyond an 80-day period. Should there be no resolution to the labor dispute within the 80-day period, further action would depend on the Congress. In addition to the LMRA, the RLA sets forth emergency procedures for ending labor disputes involving rail and air transportation.
In Canada, the legal framework has incorporated mechanisms that reflect a "preventive" approach in order to lessen the likelihood that labor disputes will negatively impact the welfare, health and/or the safety of the public. Such legislation has included provisions ensuring the maintenance of essential services, the abolition of the right to strike or lock-out in certain areas of activities and special "back-to-work" legislation in specific circumstances where the normal process fails to ensure the provision of a minimal level of services to the public.
On the provincial and territorial level, there are situations that are not adequately addressed by existing legislation. In such situations, provincial or territorial governments must legislate measures to ensure the public welfare in specific instances. When such special "back-to-work" legislation is necessary, governments often impose significant penalties for violations.
The mechanism in Mexico to address emergency situations associated with labor disputes is the requisition. The requisition process is available to the President of Mexico to address many kinds of national emergencies including those due to labor strikes. The procedures for the requisition process are established in statutory law. Once the President of Mexico has determined that a labor dispute has created or threatens to create a national emergency, the President may order the requisition of the company subject to the strike and require its continued operation, as in the case of Aeromexico, pursuant to the provisions of the LGCR, the Civil Aviation Law and the Law of the Federal Public Administration. The legality of the requisition order may be challenged through the courts. A requisition may remain in place until the Government determines that the national emergency no longer exists.
1. For the purpose of the board's inquiry, the provisions of §§ 49 and 50 of Title 15 are applicable to the board's powers and duties. Title 15, sections 49 and 50, are made applicable to the work of the board by the provisions in 29 U.S.C. § 177. These provisions relate to the attendance of witnesses and the production of documents.
2. Additional support can be found in the following cases: Texas & New Orleans Railroad Co. v. Brotherhood of Railway Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034; Allen Bradley Co. v. Union, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939; Dorchy v. Kansas, 272 U.S. 306, 47 S.Ct. 86, 71 L.Ed. 248; United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884.
4. Changes to rates of pay, rules, or working conditions have been determined to be major disputes rather than minor disputes. Major disputes are characterized by changes to an existing collective agreement or the creation of a new collective agreement or a new section of an existing collective agreement. Minor disputes are characterized by interpretation of an existing collective agreement or provisions thereunder. See Elgin, Joliet & Eastern Railway v. Burley, 327 U.S. 711 (1945). This discussion focuses on changes to rates of pay, rules, working conditions or other major disputes. Minor disputes may be settled by an adjustment board whose interpretation of the collective bargaining agreement is binding on the parties. See 45 U.S.C. § 153.
10. In 1988, negotiations began between a group of unions in the transportation sector and the National Carriers Conference Committee (NCCC), which the carriers designated to negotiate on their behalf. The unions sought improved wages and benefits; the NCCC sought wage reductions and, later, re-opening of negotiation on subjects covered by moratorium agreements. A year of NMB mediation failed to resolve the dispute, and both sides declined arbitration. President Bush appointed a board to investigate, which led to settlement by three unions, while eight others rejected the report of the board and went on strike. Congress quickly passed the legislation cited in the text.
29. See Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the United States of Mexico) [hereinafter CONST.], Diario Oficial Feb. 5, 1917[hereinafter D.O.], art. 123 (XVII).
30. See Ley Federal del Trabajo (Federal Labor Law) [hereinafter FLL], D.O. Apr. 1, 1970. Article 123 of the Mexican Constitution does not expressly establish the right to enter into Collective Bargaining Agreements; however, the FLL does since it refers to Collective Labor Agreements, which regulate relations between the union to which the workers of a particular company belong and the employer, and the conditions under which workers are to perform labor. In accordance with the FLL, a labor relationship is deemed as the rendering of a personal service by one person to another, under the latter direction and control, in consideration for the payment of a salary. If the employer is going to hire workers who belong to a union, the employer will have to execute a Collective Labor Agreement if the union asks him to do so. Id., art. 387.
31. As an example of this protective attitude, the Constitution and the FLL establish certain principles, among which the most important affect: (i) work schedule (FLL arts. 61, 66, 69, 71, 74); (ii) female workers; (iii) the minimum wage (Id. Arts. 83); (iv) unions and strikes (Id., arts. 440-443, 449, 450); (v) housing; (vi) vacations (Id., arts. 76, 80); (vii) Christmas bonus or end of the year bonus (Id., art. 87); (viii) service bonus (Id., art. 162); (ix) severance payment; (x) profit sharing (Id., arts. 117-118, 120, 125); (xi) social security.
32. Aeromexico is authorized by the Mexican Government to provide commercial air travel services. Aeromexico is one of the most important airline companies in Mexico because its routes comprise a high percentage of the air transportation traffic in Mexico.
34. See Acuerdo de Cooperación Laboral de América del Norte Entre el Gobierno de los Estados Unidos Mexicanos, el Gobierno de Canadá, y el Gobierno de los Estados Unidos de América (North American Agreement on Labor Cooperation among the México, Canada and the United States) [hereinafter NAALC], Diario Oficial (D.O.), Dec. 21, 1993.
37. In addition, article 450 of the FLL provides that the objectives of the strike shall be to: (i) obtain from the employers the execution of a legal contract and to demand its revision upon expiration, according to the provisions of Title Seven, chapter IV; (ii) demand compliance with the law-contract from the companies or establishments in the event of any violations; (iii) demand compliance with the legal provisions on profit sharing; (iv) support a strike, the objective of which is one of those listed in the preceding paragraphs; and (v) demand the revision of the contractual salaries to which Articles 399 bis and 419 bis refer. It is the Conciliation and Arbitration Board and the proper civil authorities who shall protect the right to strike, providing the employees the necessary guarantees and the assistance that they may request in order to suspend work. See FLL, arts. 449-450.
38. Id., art. 440. Under the FLL, unions of employees are considered permanent coalitions. Id., art. 441. The Mexican doctrine regards the above-mentioned definition as not including the goal of a strike which is related to the improvement of labor conditions. See Mario De La Cueva, El Nuevo Derecho Mexicano Del Trabajo (The New Mexican Labor Law), 587 (1999).
See James F. Smith, Confronting Differences in the United States and Mexican Legal Systems in the Era of NAFTA, 1 U.S.-Mex. L.J. 85, 86 (1993) (Article 133 of the Mexican Constitution is a near literal translation of the Supremacy Clause of the United States Constitution). Smith comments, however, as follows: The Paris Union Convention for the Protection of Industrial Property is not of a higher status than the law of inventions and trademarks. The Paris Union Convention for the Protection of Industrial Property executed by the President and ratified by the Senate, does not have a higher status than the law of Inventions and Trademarks, instead the status of both is the same, because Article 133 of the Constitution does not establish any difference between the statutes issued by Congress and the treaties that are in agreement with the Constitution executed by the President with the Senate's consent, because the mentioned legal provision does not support the thesis that considers that International law has a higher status than domestic law, instead it adopts the rule that refers that International law is part of the domestic law.... See Amparo under revision 256/81 H. Boehringer Sohn. July 9, 1981, 3 votes. Instructing Magistrate: David Góngora P. Amparo under revision 269/81 José Ernesto Matsumoto Matsuy. July 14, 1981, 3 votes. Instructing Magistrate: Samuel Hernández Viazcán. Amparo under revision 160/81 National Research Development Corporation July 16, 1981, 3 votes. Instructing Magistrate: Sergio Hugo Chapital Gutierrez. Third Circuit Court specialized in Administrative matters of the First Circuit. Weekly Judicial Journal of the Federation, Seventh Period. Volume: 151-156, Sixth Part. Page 101.
The Paris Union Convention for the Protection of Industrial Property is not of a higher status than the law of inventions and trademarks. The Paris Union Convention for the Protection of Industrial Property executed by the President and ratified by the Senate, does not have a higher status than the law of Inventions and Trademarks, instead the status of both is the same, because Article 133 of the Constitution does not establish any difference between the statutes issued by Congress and the treaties that are in agreement with the Constitution executed by the President with the Senate's consent, because the mentioned legal provision does not support the thesis that considers that International law has a higher status than domestic law, instead it adopts the rule that refers that International law is part of the domestic law....
See Amparo under revision 256/81 H. Boehringer Sohn. July 9, 1981, 3 votes. Instructing Magistrate: David Góngora P. Amparo under revision 269/81 José Ernesto Matsumoto Matsuy. July 14, 1981, 3 votes. Instructing Magistrate: Samuel Hernández Viazcán. Amparo under revision 160/81 National Research Development Corporation July 16, 1981, 3 votes. Instructing Magistrate: Sergio Hugo Chapital Gutierrez. Third Circuit Court specialized in Administrative matters of the First Circuit. Weekly Judicial Journal of the Federation, Seventh Period. Volume: 151-156, Sixth Part. Page 101.
42. Article 133 of the Constitution expressly provides that: The Laws of the Congress of the Union which emanate therefrom, and all treaties made, or which shall be made in accordance therewith, by the President of the Republic, with the approval of the Senate, shall be the Supreme Law throughout the Union. The judges of each state shall conform to the Constitution, the law, and treaties, notwithstanding any contradictory provisions that may appear in the Constitution or laws of the states.
The Laws of the Congress of the Union which emanate therefrom, and all treaties made, or which shall be made in accordance therewith, by the President of the Republic, with the approval of the Senate, shall be the Supreme Law throughout the Union. The judges of each state shall conform to the Constitution, the law, and treaties, notwithstanding any contradictory provisions that may appear in the Constitution or laws of the states.
44. See James F. Smith & Marilyn Whitney, "The Dispute Settlement Mechanism of the NAFTA and Agriculture," 68 N.D. L. Rev. 567, 602 n.195 (1992). Although the Supreme Court of Mexico has already held that Article 133 of the Constitution refers to regulatory laws, there are some authors who believe that Article 133 of the Constitution does not make a distinction between regulatory laws and laws such as the Foreign Investment Law or the Industrial Property Law. Further, Mexican courts have issued contradictory interpretation as to considering treaties higher in hierarchy than federal statutes or with equal hierarchy. For instance, international treaties are located above the federal statutes and below the Federal Constitution. The Supreme Court has indicated that international treaties are immediately below the Constitution and above federal and local laws. This interpretation of Article 133 of the Constitution is based on the fact that such international commitments are made jointly by the Mexican State which makes a commitment before the international community. "Therefore, the Congress authorizes the President to sign international treaties in his capacity of head of state but the Senate participates as a federal representative, by its ratification binds federal authorities . . . ." Amparo Lawsuit under Revision 1475/98. Sindicato Nacional de Controladores de Tránsito Aereo, May 11, 1999, (decided unanimously with ten votes and one abstention, José Vicente Aguinaco Alemán). Instructing Judge, Humberto Román Palacios; Secretary, Antonio Espinoza Rangel. Supreme Court of Justice. Ninth Period Thesis No.LXXVII/99.
48. "The examination of the Mexican practice reveals that no standard has existed that attempts to limit compliance with an international treaty, nor have the courts established binding precedent, in any case, to place the Constitution over treaties. Also, it is certain that the Mexican nation has complied in good faith with all of its obligations derived from the international legal order, despite its effect on its internal interests." Cesar Sepulveda, Derecho Internacional (International Law) 79 (1986).
50. Id., See Luis H. Delgadillo Gutierrez et al., Elementos De Derecho Administrativo Segundo Curso (Elements Of Administrative Law Second Course) 111 (1995) at 603; Black's Law Dictionary 1304 (6th ed. 1990).
59. Pursuant to Mexican law, personal property may be fungible or not fungible. Personal property is fungible if it can be replaced by other property of the same kind, quality and quantity. Personal property that is not fungible is such that cannot be substituted by other property of the same kind, quality and quantity. See Mex. Código Civil (Civil Code) [hereinafter C.C.D.F], D.O. Aug. 30, 1928, art. 763. See also Black's Law Dictionary, at 675.
62. The power to order a requisition shall be granted by Congress. In this regard, a Mexican superior court has established the following: The President can not impose modalities to the property. Pursuant to paragraph III, article 27 of the Constitution, it can be implied that the nation, at any time, but always provided that the public interest demands it, shall dictate provisions to the right of property. It is a mistake to maintain that the Executive Branch is the supreme chief of other powers and genuine representative of the Mexican nation, and that it is empowered to impose modalities to the private property. . . An order of requisition against railway as a means of communication issued by the President, cannot legally be grounded on Paragraph III Article 27 of the Constitution, since in accordance with Paragraph XIX Article 75 of the Federal Constitution, Congress is empowered to issue such legal orders; therefore, Congress, shall be the only one that is fully empowered to indicate, by general provisions and for further cases, which entities of the government are empowered to order the requisition of a railway as a mean of communication and the circumstances in which such requisition can take place. Amparo Lawsuit under Revision 4203/37. Ferrocarril de Oaxaca a Ejutla, S.A. March 4, 1938. Five Votes. Reporter: José María Truchuelo. Supreme Court of Justice, Second Chamber. Weekly Judicial Journal of the Federation. Fifth Period. Volume LVI. Page 2238.
The President can not impose modalities to the property. Pursuant to paragraph III, article 27 of the Constitution, it can be implied that the nation, at any time, but always provided that the public interest demands it, shall dictate provisions to the right of property. It is a mistake to maintain that the Executive Branch is the supreme chief of other powers and genuine representative of the Mexican nation, and that it is empowered to impose modalities to the private property. . . An order of requisition against railway as a means of communication issued by the President, cannot legally be grounded on Paragraph III Article 27 of the Constitution, since in accordance with Paragraph XIX Article 75 of the Federal Constitution, Congress is empowered to issue such legal orders; therefore, Congress, shall be the only one that is fully empowered to indicate, by general provisions and for further cases, which entities of the government are empowered to order the requisition of a railway as a mean of communication and the circumstances in which such requisition can take place.
Amparo Lawsuit under Revision 4203/37. Ferrocarril de Oaxaca a Ejutla, S.A. March 4, 1938. Five Votes. Reporter: José María Truchuelo. Supreme Court of Justice, Second Chamber. Weekly Judicial Journal of the Federation. Fifth Period. Volume LVI. Page 2238.
64. Article 83 of the Civil Aviation Law provides that: [I]n case of natural disaster, war, breach of the peace or when there is imminent danger for national security, the interior peace of the country, or the national economy, the Federal Government shall order the Requisition of the airplanes and other equipment regarding public services of air transportation, the necessary movable goods and real estate, and to make use of everything as it deems necessary. The Federal Government shall also use the personnel or services of the company subject to Requisition when it deems so necessary. The Requisition shall be maintained while the conditions that caused it remain. The Federal Government, except in case of international war, shall indemnify the interested parties, paying actual and consequential damages to their real value. If there is no agreement on the compensation amount, the actual damages shall be established by experts named by the parties, and regarding the calculation of the consequential damages, the average net income of the year prior to the confiscation shall be taken as basis. Each party shall cover one half of the expenses caused by the experts." See Civil Aviation Law, art. 83.
[I]n case of natural disaster, war, breach of the peace or when there is imminent danger for national security, the interior peace of the country, or the national economy, the Federal Government shall order the Requisition of the airplanes and other equipment regarding public services of air transportation, the necessary movable goods and real estate, and to make use of everything as it deems necessary. The Federal Government shall also use the personnel or services of the company subject to Requisition when it deems so necessary. The Requisition shall be maintained while the conditions that caused it remain. The Federal Government, except in case of international war, shall indemnify the interested parties, paying actual and consequential damages to their real value. If there is no agreement on the compensation amount, the actual damages shall be established by experts named by the parties, and regarding the calculation of the consequential damages, the average net income of the year prior to the confiscation shall be taken as basis. Each party shall cover one half of the expenses caused by the experts." See Civil Aviation Law, art. 83.
[T]he competent health authorities are empowered to use as auxiliary means in the fight against epidemic outbreaks, all medical resources and social assistance of the public, social and private sectors existing in the affected and adjacent regions, in accordance with the provisions of this law, and the corresponding regulations." See Ley General de Salud (General Law of Health), D.O. Feb. 7, 1984, art. 148.
[T]he competent health authorities are empowered to use as auxiliary means in the fight against epidemic outbreaks, all medical resources and social assistance of the public, social and private sectors existing in the affected and adjacent regions, in accordance with the provisions of this law, and the corresponding regulations." See Ley General de Salud (General Law of Health), D.O. Feb. 7, 1984, art. 148.
66. The Expropriation Law mandates that: [I]n the events established in Article 1, previous declaration of the Federal Executive Branch, expropriation, temporary occupation (partial and total), or simple limitation of dominion rights shall take place, only for the purposes of the State or the interest of the community." See Ley de Expropiación (Expropriation Law), D.O. Nov. 25, 1936, art. 2.
[I]n the events established in Article 1, previous declaration of the Federal Executive Branch, expropriation, temporary occupation (partial and total), or simple limitation of dominion rights shall take place, only for the purposes of the State or the interest of the community." See Ley de Expropiación (Expropriation Law), D.O. Nov. 25, 1936, art. 2.
67. LGRC, art. 112 continues: In such case, the Nation shall indemnify the interested parties, paying for the actual damages on their real value and the consequential damages less fifty percent. If there is no agreement regarding the amount, actual damages shall be established by experts named by the parties and the consequential damages shall be established taking as a basis the average of the net income prior and subsequent to the confiscation. The expenses of the procedure shall be charged to the Nation. In case of international war, referred in this article, the Nation shall not be obligated to cover any compensation.
In such case, the Nation shall indemnify the interested parties, paying for the actual damages on their real value and the consequential damages less fifty percent. If there is no agreement regarding the amount, actual damages shall be established by experts named by the parties and the consequential damages shall be established taking as a basis the average of the net income prior and subsequent to the confiscation. The expenses of the procedure shall be charged to the Nation. In case of international war, referred in this article, the Nation shall not be obligated to cover any compensation.
72. See Acuerdo por el que el Gobierno Federal, por conducto de la Secretaría de Comunicaciones y Transportes, requisa todos los bienes de la empresa denominada Compañía Mexicana de Aviación, S.A (Decree by which the Federal Government, through the SCT, requisitioned all the property of Mexicana de Aviación, S.A.), D.O., Nov. 2, 1977.
73. See Acuerdo por el que el Gobierno Federal, por conducto de la Secretaría de Comunicaciones y Transportes, requisa todos los bienes de la empresa denominada Transportes Dos Huastecas, S.A. (Decree by which the Federal Government, through the SCT, requisitioned all the property of Transportes Dos Huastecas, S.A.), D.O., June 12, 1978.
74. See Acuerdo por el que el Gobierno Federal, por conducto de la Secretaría de Comunicaciones y Transportes, requisa todos los bienes de la empresa denominada Teléfonos de México, S.A. (Decree by which the Federal Government, through the SCT, requisitioned all the property of Teléfonos de México, D.O. Apr. 26, 1979.
75. See Decreto por el que se requisan todos los bienes de la empresa denominada Aerovías de México, S.A. de C.V. (Decree through which all the Property of the Company denominated Aerovías de México, S.A. de C.V. is requisitoned), D.O., June 1, 1998.
77. See Minutes for the meeting between ASSA and Aeromexico before officers of the Secretariat of Labor and Social Prevention, dated April 23, 1998; Minutes for the meeting between ASSA and Aeromexico before officers of the Secretariat of Labor and Social Prevention, dated April 27, 1998; Minutes for the meeting between ASSA and Aeromexico before officers of the Secretariat, of Labor and Social Prevention, dated April 28, 1998; Minutes for the meeting between ASSA and Aeromexico before officers of the Secretariat of Labor and Social Prevention, dated April 29, 1998.