Russ Brown, a vice president at the Labor Relations Institute and a CEI adjunct analyst, talks about recent changes made to the Railway Labor Act that make it easier for airline workers to unionize. Brown recently co-authored a CEI OnPoint paper on the reforms. Congress voted against the changes in legislation, so they were passed via regulation instead. This is another example of regulation without representation.
Railway Labor Act
Despite all they have gotten from the Obama administration, many union leaders have vented their frustration over Democratic lawmakers’ failure to enact the unions’ top legislative priority: the so-called Employee Free Choice Act (EFCA).
As a result, they are seeking to do a run around Congress by trying to get something similar to EFCA’s unpopular card check provision imposed through the regulatory process. This provision would amend the National Labor Relations Act to effectively eliminate secret ballots in organizing elections.
Last May, unions and their Democratic allies did a similar end run by amending the Railway Labor Act (RLA), which regulates labor relations for railways and airlines, to skew voting rules in unions’ favor. The change was enacted through the National Mediation Board, which oversees labor negotiations under the RLA.
Under the previous interpretation of RLA voting rules — which dated back to 1934 — a union needed to get a majority of all members in the bargaining unit — that is, the majority of all members the union sought to represent — to vote for unionization.
Under the new interpretation, unions only need to get a majority of votes cast, which can lead to a union being certified as the monopoly bargaining agent for a group of employees with only a minority of those employees having voted for the union. For example, if union is trying to organize a company that has 1,000 employees and on the day of the election only 500 show up to vote, the union would then need only 251 votes to win.
Fortunately, some Republican Senators are confronting this Big Labor power grab, through a resolution (S.J. Res. 30) sponsored by Sen. Johnny Isakson (R-Ga.). They are doing so by dusting off a needed law that, if used more, could help curb many government excesses: the Congressional Review Act of 1996, which allows Congress to review — and repeal — agency-promulgated rules.
The Act has only been used once, in early 2001, to repeal a Clinton-era ergonomics rule. It’s good to have it back. It would be even better still for new regulations to meet this kind of scrutiny on a routine basis.
From attempting to manipulate the definition of “supervisor” to changing the way in which workers are organized, the above seems to be a guiding principle in organized labor’s bold new approach to increasing union membership. Consistent with that, some union friendly government officials are trying to change the way in which votes for some workers are counted.
Today, as The Wall Street Journal reports, National Mediation Board chair Elizabeth Dougherty wrote to more than a dozen Republican senators, protesting her colleagues’ proposed rule change (sent to the Federal Register on October 29) that would change the way in which votes are counted in organizing elections under the Railway Labor Act (RLA).
Under a 75-year-old interpretation of the Railway Labor Act, any employees who don’t vote on whether to create a union are counted as “no” votes. That means a union can’t be approved without a full majority of all employees voting in favor of it.
Under the National Labor Relations Act governing other industries, a union can be created as long as a majority of all votes cast are in favor of collective bargaining. In such elections, nonvotes don’t count either way.
Earlier this year, the White House named Linda Puchala, a former leader of a flight-attendant union, to the NMB to succeed Read Van de Water, a former lobbyist for Northwest Airlines. Harry Hoglander, a board member since 2002, is a former union leader for pilots.
Ms. Dougherty joined the NMB’s board in 2006. A registered Republican, she served as a labor adviser to Mr. Bush earlier this decade.
In September, the AFL-CIO union formally asked the NMB to adopt the same voting rules as the National Labor Relations Act, arguing that the unionization-election process under the Railway Labor Act is undemocratic.
In its proposal published Monday, the NMB agreed, saying that “few if any” democratic elections treat nonvotes as “no votes.” Allowing a contrary policy, as under the current NMB union-voting rules, “could allow those lacking the interest or will to vote to supersede the wishes of those who do take the time and trouble to cast ballots,” the agency added.
Opponents of the overhaul say the higher bar for unionization was set up to protect interstate commerce from disruption. They also argue the law hasn’t hindered unionization: Roughly two-thirds of airline employees and more than three-quarters of railroad workers are organized, according to industry estimates, far higher than the 12% rate across the entire U.S. economy.
That’s a major change, but the unions are not about to stop there in their efforts in this area. The Teamsters, in cooperation with UPS, are trying to move employees of FedEx — UPS’ competitor and a Teamsters organizing target — out from being regulated under the RLA to jurisdiction under the National Labor Relations Act (NLRA).
Unlike the NLRA, the Railway Labor Act requires unionization to be carried out company-wide. This prevents the creation of balkanized work rules that could result from piecemeal unionization at individual facilities. UPS began as a ground transport company, so most of its employees are covered under the NLRA.
However, the Teamsters are UPS have pursued that change through the legislative process. Now some union allies are pursuing a similar change through the regulatory process. When it comes to changing the organizing rules, Big Labor seems more likely to keep persisting.
For more on the RLA, see here.