Arbitrary, Capricious, and Contrary to Law

Oct. 12, 2011
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.

Non-union vs. union

During this time of economic distress in our country unionized employees, including mechanics in the airline business, are protected from dismissal by their collective bargaining agreements, which often require “just cause” before the termination of any employee. This is valuable protection. Non-union workers traditionally are not guaranteed the protection given to union employees.

Unless non-union employees have individually negotiated employment contracts, they risk being terminated by the use of the common law employment-at-will rule that allows an employer to dismiss an employee at any time for any reason.

The union employee must be afforded several opportunities for reinstatement under most agreements before he can be let go. The process can be long and detailed and is designed to explore all opportunities to retain the employee. If an employer wants to avoid a union all they have to do is provide the same benefits and wages that are sought by the union.

At-will discharge

Fortunately, for the non-union employee, the dismissal at-will concept has been slowly eroded, so that many states have all but done away with it, thus making it almost as difficult to dismiss a non-union employee as it is for a union protected person. Where there is no union to deal with employers must still deal with the ever-present threat of a wrongful discharge lawsuit by an employee. The possibility of large jury awards must be considered for the wrongful termination of an at-will employee. The employer may be faced with both compensatory and punitive damages for mental anguish and or pain and suffering or actual physical injuries.

The real danger of such a tort case is that a jury could become overly sympathetic with and identify with an aggrieved employee and impose punitive damages as well. The erosion of the at-will employment doctrine provides a judicial solution for those employees. All employers should carefully seek alternate paths to avoid litigation with discharged employees. The continued erosion of the at-will employment concept however, now provides job security not unlike that available to the union employee.

So the question remains … if all other things are equal the status can be considered almost equal … why bother with complex arrangements?

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He is a USAF veteran. Send comments to [email protected].