In any industry, one thing is certain about unions: They want members – the more, the better. Railroad and airline unions are no exceptions. Right now they are gearing up for a campaign to persuade Congress to rescind a provision in the House version of the Federal Aviation Administration reauthorization bill (H.R.658), which passed last Friday. Title IX of the measure reverses last year's regulatory change by the three-member National Mediation Board – the entity that interprets the Railway Labor Act – that allows a union to win recognition without necessarily obtaining majority support. The two-to-one ruling overturned decades of precedent. Most Republicans opposed the ruling as bureaucratic overreach. The Senate version (S.223) does not contain the rule reversal. Labor chieftains and their Democratic allies want conferees to strike Title IX from the final bill.
The Federal Aviation Administration for the last several years has been operating on automatic pilot. The pun reflects the reality. The most recent reauthorization took place in 2003 and expired in 2007. Since then, Congress has provided 17 short-term extensions of FAA funding, the most recent ending this past March 31. It's a major agency, charged, among other things, with managing and upgrading air traffic control systems at the nation's commercial airports. The House measure, which passed 223-196, authorizes $59.7 billion over four years in new spending. The Senate already passed a two-year, $34.5 billion bill in February by 87-8.
One of the more significant, if unheralded, features of the legislation is Title IX, which overturns a final rule published in the Federal Register on May 11, 2010 by the National Mediation Board (NMB) and which became effective July 1. The NMB added a "no" option for rail- and airline-related union elections concerning representation and required that the majority of votes cast – rather than the majority of affected workers, whether voting or not – determines the outcome. To understand why this seemingly arcane rule change looms so potentially large, it is first necessary to understand what the NMB is and how it operates.
The National Mediation Board is to the railroad and airline industries what the National Labor Relations Board (NLRB) is to the rest of the private sector: a dispute-resolution and election-supervision body. Congress created the NMB in 1934, eight years after passing the Railway Labor Act (RLA) and one year before enacting the National Labor Relations Act (NLRA), which authorized NLRB. Yet inasmuch as the Railway Labor Act and the National Labor Relations Act are analogous, they are hardly identical. NLRB-supervised elections, unlike NMB-supervised ones, treat as a majority the ballots cast, not the total number of voting and non-voting workers. And the NLRA gives unions the authority to organize company employees on a site-by-site basis, whereas the RLA standard is "craft or class."
It is important to remember that the Railway Labor Act, enacted in 1926 during the Coolidge years, was designed to discourage rail workers from unionizing. Lawmakers believed that without tough limits, employees might well go on strike and jeopardize not only the entire railroad industry but also national security. As it was, less than a decade earlier, in December 1917, the Wilson administration nationalized the railroads as an emergency wartime measure. Later, in 1936, Congress would apply the RLA to the burgeoning airline industry.
As with the National Labor Relations Board, membership on the National Mediation Board, by custom, is split along party lines – two members of one major party and one of the other. In the context of the current administration, this obviously means two Democrats and one Republican. President Obama has used his prerogative wisely, naming two Democrats to the board, Linda Puchala in 2009 and Harry Hoglander in 2010. Puchala, an NMB mediator since 1999, previously had served as International President of the Association of Flight Attendants, and staff director of the Michigan State Employees Association, an affiliate of the American Federation of State, County and Municipal Employees (AFSCME). Hoglander, currently in his third run as NMB chairman, is a lawyer and pilot, and previously had been vice-president of the Air Line Pilots Association. In other words, this particular board is union-friendly.
The National Mediation Board until last year always had interpreted elections to reflect statutory authority. If a union wanted to win representation, it had to achieve at least 50 percent worker participation in an election. A vote by an eligible employee automatically counted as favoring unionization; an abstention meant "no." Railroad and airline union leaders long felt hemmed in by this arrangement. They wanted an alternative that mimicked political elections, whereby a simple majority among votes cast wins representation. Example: Assume a union gains the right to conduct an NMB-supervised election for representation at a firm with 5,000 workers. Assume 2,000 of the workers vote and the other 3,000, for whatever reason, don't. Using the longstanding method, only 40 percent of all workers favor representation, clearly not enough to meet the simple majority threshold. But under the alternative method – i.e., the one favored by the unions and now the National Mediation Board – only the choices of the 2,000 voting workers would be considered. And let's say that 1,200 of those 2,000 workers voted for representation. That means a 60 percent majority – and victory. Thus, the choices of 1,200, or 24 percent, of all 5,000 workers take precedence over the choices of the other 76 percent.
On the surface, there would appear nothing wrong with the new NMB interpretation. After all, political candidates have to win a majority of ballots cast rather than a majority of all registered voters in their district. People who don't cast a ballot in a presidential or congressional election shouldn't have to worry about being declared involuntary voters. The NLRB follows this model. Why can't the National Mediation Board do likewise? Actually, there are several valid reasons.
First, the NLRB system has its own pro-union bias. To set in motion an election, the organizing union first must submit a petition indicating that at least 30 percent of all affected workers want representation. In other words, up to 70 percent of affected workers may decline to sign, yet are outgunned. A union also can trigger an election by collecting signed cards indicating a willingness to join by at least 50 percent of affected workers ("card check"). Moreover, the employer may be barred by "neutrality agreement" from expressing its views during an organizing drive. Unions often use these features as pretexts to engage in intimidating persuasion.
Second, the immediate trigger for the National Mediation Board ruling – a lawsuit filed in District of Columbia federal court on May 17 by the Air Transport Association of America, later joined by the U.S. Chamber of Commerce, to prevent the board from making the rule change – was reasonable. The older vote-counting standard is spelled out clearly by statute. That's why the National Mediation Board for some 75 years went by it. The Air Transport Association claimed the NMB's rule change was "arbitrary, capricious [or] an abuse of discretion." Moreover, said the suit, the rule failed to incorporate industry concerns and selectively borrowed only pro-union provisions from the labor statute that applies to non-rail and non-airline employees.
Third, Democrats on the NMB allegedly prevented their Republican colleague, Elizabeth Dougherty, from playing any role in drafting or issuing the rule. Since Dougherty already had expressed the view that the regulatory change is "the most dramatic policy shift in the history of the agency," the pro-union duo on the board had real motive to exclude her.
Fourth, the National Mediation Board's 75-year precedent for defining a worker majority was not inherently anti-democratic because unions are private organizations, not a polity. Unions shouldn't expect a "winner-take-all" arrangement, as is the case for congressional and other public office elections. That they do, of course, is the essence of "exclusive representation," one of the cornerstones of their monopoly privilege. There are at least four reasons why railroad/airline union democracy doesn't parallel political democracy:
Union officials don't have to stand for scheduled re-elections. And once in power, their incumbency is almost assured. While one union can replace another, no major (more than 400 members) airline or rail labor organization so far has been able to eliminate representation. Not fearing losing a re-election bid, union leaders in power are likely to feel less accountable.
Union elections last weeks, not one day. Unlike government elections, railroad and airline union elections typically last from four to six weeks. They are not Election Day "snapshots." Workers can vote by phone, mail or computer.
Workers have greater opportunities to undo an election. In a political election, recounts are obtained with the greatest of difficulty, and then only with a clear possibility of incompetence or tampering. The recent vote at Delta Airlines over whether to unionize (see discussion below), held after the National Mediation Board rule change, represented the third try following union officials crying foul.
RLA-covered union contracts can force employers to fire workers who don't pay dues or agency fees. While the U.S. Supreme Court's decision in Ellis v. Railway Clerks (1984) mitigated this fact of law, it didn't abrogate it. And since Right to Work laws don't apply under the RLA, moving to another state won't change the situation.
U.S. District Judge Paul Friedman wasn't swayed by these arguments. Last June 25 he decided on behalf of the defendant, the National Mediation Board. The board quickly implemented its new rule. And the unions went to work.
Since the new rule went into effect, the NMB has supervised several elections involving the airline industry. Among the key ones:
Case #1. Last fall, the Association of Flight Attendants, which is an affiliate of the Communications Workers of America, sought to represent employees at mainly nonunion Delta Airlines. The AFA-CWA lost this time by 328 votes out of nearly 19,000 ballots cast; about 7,000 were union employees with Delta subsidiary Northwest Airlines, acquired in 2008. Union officials again are alleging union-busting tactics by management.
Case # 2. The Communications Workers succeeded in winning collective bargaining rights for about 3,000 nonunion baggage handlers at Piedmont Airlines, a subsidiary of (unionized) US Airways. Out of 2,867 eligible voters, the CWA won 1,107 votes in favor and 638 votes against. The rest did not vote. In other words, the preference of about 40 percent of employees took precedence over the other 60 percent.
Case #3. This past March, the International Association of Machinists won an election to represent nearly 3,000 workers at budget carrier AirTran Airways. Slightly less than 1,000 employees voted for unionization, with the rest either voting against it or not voting at all.
The second and third elections, in other words, were union victories that would not have happened under the old NMB rule.
The National Mediation Board rule change may produce a lot more airline union victories, thanks to the industry's prevailing ‘hub and spoke' airport system. Because a majority is based on votes cast rather than total employment, a union more easily can focus its organizing and campaigning on hub cities such as New York City, Chicago or Dallas, while ignoring small regional spokes. In effect, low participation increases the likelihood of a union victory.
The ball is now in the hands of Congress, now preoccupied with a pending government shutdown by the end of Friday. It's a close call as to whether lawmakers will rescind the NMB ruling. The Senate bill passed overwhelmingly, but excluded Title IX. And the House of Representatives came close to excluding it. By a 30-29 vote, the House Transportation and Infrastructure Committee rejected an amendment by Reps. Steve LaTourette, R-Ohio, and Jerry Costello, D-Ill., that would have removed the provision. That LaTourette, now in his ninth term, is a Republican is misleading. He represents a heavily unionized district in the Cleveland area and has received more than $335,000 in union campaign contributions over the course of his tenure. Three other Republicans – Reps. Tim Johnson (Ill.), Frank LoBiondo (N.J.) and Candice Miller (Mich.) – also voted for the amendment.
Senate Commerce, Science and Transportation Committee Chairman John D. Rockefeller IV, D-W.Va., reportedly has stated that it may take up to a year to iron out differences in the House and Senate bills in conference sessions. President Obama just before the House vote had threatened to veto the bill if it included Title IX. He's not likely to change his mind. In the meantime, railroad and airline unions have some elections to win.