"If you receive a package from any other express-delivery driver, he or she will do exactly the same functions as a FedEx Express driver," said UPS spokesman Malcolm Berkley. "If you have people performing the same functions, even if they're at different companies, they should be under the same labor law."
FedEx is keenly aware that it has become a convenient target for labor. "I would hope this doesn't turn into a union payback," said company spokesman Maury Lane. "That would be unfair to us, because we've been following the law."
FedEx is mounting a vigorous campaign to keep its Express operations under the Railway Labor Act. The company argues that FedEx is very different from UPS because its ground, express, and other operations are separate companies. FedEx Express is still essentially an airline, the company says. FedEx Ground, in contrast, employs drivers who are independent contractors and as a result aren't organized. But because the ground division's operations fall under the jurisdiction of the NLRA, groups of workers in many states have sued in court and petitioned the National Labor Relations Board to organize labor units.
Together, UPS and FedEx handle about 22 million packages a day. They account for 82 percent of the $59 billion-a-year U.S. parcel-delivery market, according to transportation consultant Satish Jindel, who has worked with both companies. "If UPS and FedEx stopped operating tomorrow, the country would feel the pain," he said. "Within a matter of days, the things that you expect to find in department stores would not be there."
That's an argument FedEx hopes to use to its advantage. If employees at both companies were unionized and went on strike, Lane said, the national economy could be jeopardized.
"The RLA was created for companies like FedEx to ensure we had a continuity of interstate commerce, to ensure a healthy national economy," Lane said. "This amendment [to the FAA reauthorization bill] would put that in danger."
Meanwhile, unions view the battle as an opportunity to make inroads at a company that has long resisted organizing efforts. Of the 280,000 FedEx employees and independent contractors, only 5,000 pilots at FedEx Express are union members. The Teamsters say they want FedEx Express drivers to have the same opportunities as those at UPS. In 2003, according to salary data from court filings, the typical FedEx Express driver made $18.34 an hour. The typical UPS driver was paid about $24.75. Today, UPS says a typical driver earns about $70,000 annually, including overtime. FedEx declined to release salary figures.
"We view UPS as a good union employer that bargains in good faith," said Teamsters spokeswoman Leslie Miller. "We view FedEx as a viciously anti-union, anti-worker employer."
The FedEx-union battle last arose on Capitol Hill in 1996, when Republicans put language protecting the company's status under the Railway Labor Act into an earlier FAA authorization bill. The current standoff could be resolved soon. The House Transportation and Infrastructure Committee voted 51-18 in late June to add language to the FAA bill that would subject FedEx to the NLRA. That measure will reach the House floor this month.
The FedEx language is one of several union priorities Democrats want to enact before the end of the session. House Democrats have added pro-labor language to a range of bills, including provisions guaranteeing prevailing wages on construction projects and preventing privatization of government work. They also want to use the FAA legislation to open contract talks with air traffic controllers.
Yet it's unclear whether any of these proposals can garner the 60 votes needed to get through the Senate. Those that do could face vetoes from President Bush, who has already voiced displeasure with several pro-labor provisions, if they make it to his desk.
Labor advocates and detractors both say that all of this is merely a prelude to what will happen after the 2008 election. Unions are hoping the next president will be more receptive to their efforts. And they view the broader fight over making it easier for workers to form unions as a multi-year effort. The legislation stalled in the Senate not only would allow workers to unionize by signing cards, it would increase penalties for employers who illegally thwart organizing efforts.
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