Unions have been disappointed by the Obama administration’s
inability to move their agenda forward. But they finally won a
victory last week. This is bad news for America’s transport sector,
not to mention travelers and businesses of all sizes that rely on
rail and air shipping, because it could cause major disruptions to
travel and commerce.
Last year, the National Mediation Board (NMB), the
government agency charged with overseeing labor relations in the
railroad and airlines industries, changed voting rules to favor
unionization. On Friday, December 16, 2011, the U.S. Court of
Appeals in the District of Columbia upheld the rule change as
consistent with the Railway Labor Act (RLA).
However, as dissenting Circuit Judge Karen Henderson
explained, the NMB failed to provide any justification for changing
a rule that had stood for 75 years.
The Act clearly states: “The majority of any craft or
class of employees shall have the right to determine who shall be
the representative of the craft or class.” A craft or class is any
job classification that may be organized as a bargaining unit of
like workers — for example, railroad engineers or airline pilots.
The new rule makes it possible for a minority of the employees of a
craft or class to vote in a union.
The rule change predictably met with strong objections
from most of railroad and airline companies. The Air Transport
Association of America and U.S. Chamber of Commerce filed a lawsuit
challenging it. But this is no simple labor versus management
dispute. Several Delta Airlines employees also filed suit on the
grounds that the rule change violated their rights of freedom of
association.
Congress passed the RLA to govern railway unions in 1926
and expanded it to include airlines in 1936. In order to avoid
disruptions to America’s transport network through strikes and
other kinds of work stoppages, the Act imposed mandatory mediation
and gave the president the ability to order workers back to
work.
The RLA allows unions to organize workers for the purpose
of negotiating a collective bargaining agreement as the workers’
exclusive representative. However, unlike the National Labor
Relations Act (NLRA), which regulates labor relations in other
industries and allows unions to organize on a location-by-location
basis, the RLA requires a bargaining unit to include all the
workers of the same classification throughout an entire company.
By requiring unions to organize on a company-wide basis,
the RLA helps to avoid the creation of a patchwork of work rules
that would result from piecemeal unionization at various
facilities. It also prevents localized issues from disrupting
nationwide transport networks. Balkanized work rules detract from
the standardization and economies of scale upon which network
industries rely.
In addition, the RLA requires a union to gain votes from a
majority of all workers it would represent in a bargaining unit in
order to be certified. This ensures that a union truly enjoys the
support of the majority of workers in a given craft or class. The
rule change now requires merely a majority of votes cast. Thus,
under the new rule, a bargaining unit of 100 employees could be
unionized with only 41 employees voting for the union in an
election in which only 80 votes are cast.
The court also failed to address the fact that the NMB
made no effort to educate workers about the rule change. It issued
no postings, memos, letters, or public service announcements to
that effect. The original rule had been in place for 75 years, so
to say that the employees would find a rule change surprising and
disruptive is an understatement. Employees who once could simply
abstain to express their desire not to join a union would be in for
a rude shock.
That’s not all. Under the NMB’s rule change, there is more
than one way for a union to receive “yes” votes. First, the new
ballot includes a “write in” section where any vote cast
automatically counts as a vote for the union, because “no union”
votes may only be entered in the section so labeled. Second, if
there is a runoff election, it may only include the top two union
vote getters, with the “no union” option left out.
Reforming the Railway Labor Act is a job for Congress, not
an unaccountable agency. This case deserves to be either reheard by
the full circuit or taken up by the Supreme Court.
For its part, Congress should consider reforming the Act
in a way that protects employees’ right to decide for themselves
whether to join or refrain from joining a union. Specifically, it
should change the voting procedures back to 50 percent-plus-one of
the craft or class and allow runoff elections to include the “no
union” option. It should also hold the National Mediation Board
accountable, and make it clear that it is not a mechanism to grant
favors to the president’s union allies.
