BARNES, RICHARDSON & COLBURN

475 Park Avenue South

New York, NY 10016

Telephone: (212) 725-0200

MEMORANDUM

DATE:            October 30, 2002

 TO:                 REJ

 FROM:           JLM

 RE:                 Options for dealing with the west coast port lockout

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                 Pursuant to the provisions of sections 206 et seq of the Labor Management Relations Act of 1947 or Taft-Hartley Act, codified at 29 U.S.C. §176 et seq, the President may direct the Attorney General to petition the appropriate federal court to enjoin any strike or lockout, pursuant to the recommendation of a Board of Inquiry appointed by the President.  Any court-issued injunction is in force for eighty days, or until the parties have reached an agreement, whichever occurs first.  See 29 U.S.C. §179(b).  See also U.S. v. International Longshoreman’s and Warehousemen’s Union, 78 F. Supp. 710, fn 1 (N.D. Ca. 1948).   The eighty days for which the injunction is valid represents the amount of time required to perform the actions mandated in the statute.  That is, The President’s board of inquiry must, at the end of the first sixty days of the injunction, submit a report to the President documenting the current position of each side of the dispute.  The NLRB then has fifteen days to take a secret ballot of the employees involved in the dispute, to determine whether they wish to accept the employer’s final offer.  Finally, the NLRB must report the results of the vote to the Attorney General within five days of the election.  See 29 U.S.C. §179(b).  This procedure requires eighty days.

             Once the employees have voted to accept or reject the employer’s final offer, the injunction is discharged.  See 29 U.S.C. §180.  Consequently, there is no provision in the statute for an extension of the injunction, nor does the statue provide for a second injunction.

             Currently, the west coast ports are operating under such an injunction, which expires at the end of December.  See Port Tensions Worry Retailers, Growers, Los Angeles Times Online, http://www.latimes.com/business/la-fi-port28oct28.story (Oct. 28, 2002) (citing October 9 as the effective date of the injunction, which means it will remain effective until December 28).  Once the injunction expires, it appears that the government will have exhausted its options in avoiding a lockout.  If, in the final vote, the union elects to reject the employers’ final proposal, the workers can strike.  See David Sanger with Steven Greenhouse, Bush Invokes Taft-Hartley Act to Open West Coast Ports, the New York Times, (Oct. 9, 2002). 

             Consequently, it appears that the 80-day injunction pursuant to the Taft-Hartley Act is the only resource available to the government for the avoidance of strikes and lockouts.