Arbitrary, Capricious, and Contrary to Law

National Mediation Board and National Labor Relations Board new rules

Some observers of the recent rules published by the current NMB and NLRB have described them as the above title indicates….and they may be correct.

Labor Boards 101

The National Mediation Board is a part of the Department of Labor and works to mediate disputes raised by those employees covered under the Railway Labor Act (RLA), which includes those in the airline business. This board has now decided that unions can organize airline and railroad workers if a simple majority of voting workers support unionization, rather than a majority of workers in the proposed bargaining unit, as has been the rule for 75 years. The result is that the vote can be decided by only a small handful of employees.

Delta Airlines is the best current example of how the new rule will probably unionize Delta. Delta is the only major non-union carrier that existed before de-regulaton in 1978. It has remained so because it treated all its employees generously with benefits and wages. There have been many continuous attempts to unionize Delta, the most current resulting in four failed efforts. Obviously, Delta employees, for the most part, do not want union representation. Now, later this year, the new counting method devised by the current administration’s NMB will take effect and likely result in the unions finally being successful at Delta.

One of the significant aspects of the Railway Labor Act is that it provides that once employees are unionized, they cannot be forced to disband their union or be de-certified. So that even if an airline was released from a union contract, as in a bankruptcy proceeding, it still must negotiate with the union in reaching another agreement, if they are still in business. In other words, unionization under the RLA continues indefinitely.

On the other hand, the National Labor Relations Board (NLRB) is an arm of the National Labor Relations Act (NLRA) which is a much broader law that sets rules for collective bargaining efforts on all employees, except airline and agricultural workers, who each have their own labor law. This board has just published a new rule that requires all private business to publish and display notices that explain the right to bargain collectively, to pass out union literature, and to work to improve wages and conditions free of retaliation. Forcing all employers to actively support the unionization of their business is seen by many employers as simply overreaching by government union supporters and indeed is arbitrary, capricious, and may be contrary to law.

Needless to say, these boards are now controlled by the Administration in Washington, although nominally they are supposed to be independent of political pressure.

Opposition in new FAA Reauthorization Act

Opposition efforts to set aside the airline (RLA) union voting effort have been inserted into the proposed FAA Reauthorization Act, which is currently in debate (and has been for several years without results) and presents a huge obstacle to its passage. As we all have noted, some FAA employees have recently been put back to work pending further developments which should be decided by the time you read this. (September 16). The Act probably will be passed or extended with or without the change mentioned. Many fear that unless FAA reauthorization is passed all airline operations may be effectively slowed down. It has not happened so far. Legislators have vowed that this will not happen, we’ll see.

No matter what one’s feelings are about collective bargaining efforts and unionization, the power now being exerted by the unelected board members on labor issues is seen as getting out of hand by many observers.

Some history

Union activity in the airline and aviation business in general has been at a low ebb for many years now. The most significant action was the ultimate demise of Eastern Airlines some years back due to a strike by mechanics and the failure of settlement efforts. The airline folded up as a result and everyone was left without a job. There have been other strike actions since then but for the most part they did not result in any corporate failures.

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