Carlson School of Management News

Viewpoint: Revised election rule would restore democracy for air, rail workers

Thursday, May 05, 2011

Viewpoint: Revised election rule would restore democracy for air, rail workers
by John Remington

The federal government is poised to make a decision that will dramatically improve the ability of workers at Delta Airlines to win union representation and mark a historic change for thousands of air and rail transportation workers.

The National Mediation Board, the federal agency that regulates labor relations in the railway and airline industries, has proposed to revise its union representation election rule. Currently, the board requires a union to receive a majority vote of all employees in a particular craft or class - not just those who participate in a representation election. This effectively means that all employees who do not vote in the election are considered to have voted against union representation.

The proposed rule, which was announced on Nov. 1 and is scheduled to take effect following a 60-day comment period, will make the National Mediation Board election rule identical to the rule applied by the National Labor Relations Board in all other private sector union representation elections. Workers will determine union representation by a vote of only those employees who actually vote. The discrepancy in the two rules has caused confusion among workers and has made it more difficult for unions to win elections involving railway and airline employees.

Differing histories

The difference in the rules of the two agencies can be attributed to the special circumstances under which the Railway Labor Act was adopted in 1926 and later amended in 1934. The Railway Labor Act is the federal law governing labor-management in air and rail transportation.

The original Railway Labor Act resulted from joint lobbying of Congress by both rail carriers and unions in response to the ineffectiveness of the Transportation Act of 1920, which simply permitted employers to "voluntarily" recognize unions. The Transportation Act continued federal policy which had previously established occupational groupings called "crafts or classes" for purposes of collective bargaining.

In exchange for significant limitations on the right to strike, the Railway Labor Act granted existing railway unions exclusive recognition to represent the crafts and classes of employees who were already their members. However, no provision was made in the 1926 Act for the selection or election of representatives where no unions already existed. The 1926 Act merely directed labor and management to respect one another's free choice of representatives.

While this protected the bargaining rights of already unionized employees, it also continued the existence and creation of "company unions" dominated by the employer. There is no equivalent in the Railway Labor Act to the National Labor Relations Act's prohibition, as an unfair labor practice, of company-created or dominated unions.

Expanded authority for Mediation Board

The absence of an election procedure was addressed in a 1934 amendment to the Railway Labor Act that also brought airlines under the jurisdiction of the Act. Section 2 of this amendment prohibits any limitation on the freedom of association of employees in self-organization and outlaws "yellow dog contracts."

The National Mediation Board was given the duty to investigate, upon request, any representation dispute among employees and to certify to the carrier and the contesting unions the names of individuals and organizations who are the authorized and designated bargaining representatives. The Board was expressly authorized to use secret ballot election procedures or any other appropriate means (for example, a check of authorization cards) that would assure a free and uncoerced exercise of the employees' right to choose representatives.

Accordingly, it is apparent that the National Mediation Board has the discretion to certify union representation based solely on authorization cards, an option that the proposed Employee Free Choice Act would extend to the National Labor Relations Board in other private sector union elections. Subsequent court decisions also gave the National Mediation Board broad authority to determine who was entitled to participate in an election and determine the rules under which the election will be conducted.

The proposed change in election rules will bring the union election representation procedure for transportation workers in line with the rules applied for workers in all other industries.

As Edward Wytkind, president of the AFL-CIO Transportation Trades Department, recently stated, "The deck is currently stacked against airline and railroad workers. The NMB is proposing new rules that would finally permit airline and rail workers to vote for unions under the same standards found everywhere else in our system of democracy."

It is fundamental in a democracy that winners should be selected by a majority of those voting and that no presumption should be made concerning the intent of those who, for whatever reason, decline to vote or fail to avail themselves of the opportunity to do so.

This Viewpoint can be found on Workday Minnesota.

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