By Edgar James and Danny Rosenthal, who practice airline and rail labor law in Washington, D.C. Both are ACS members.
Although Congress has apparently reached a deal to temporarily end the Federal Aviation Administration (FAA) shutdown, the larger fight over FAA funding continues as Democrats and Republicans wrangle over a permanent extension of funding. The key holdup revolves around a basic question of democracy and a relatively unknown federal agency. The question is this: For a union to be elected at a railroad or airline, should approval be required by a majority of those who cast votes or, instead, by a majority of all eligible voters? The agency is the National Mediation Board, which conducts elections to determine if workers in the airline and railroad industries wish to become unionized. (In other industries, elections are conducted by the Board’s more famous cousin, the National Labor Relations Board.)
The current standoff can be traced to May 2010, when the National Mediation Board amended its regulations regarding elections. By federal statute, the Board has the authority to choose “any appropriate method” for conducting elections. Until last year, the Board’s general policy was to require approval by a majority of all eligible voters in order to certify a union. But this approach had serious problems. It assumed that non-voting employees were against unionization when they might simply have been uninterested or unable to vote. In many elections, the voting rolls included furloughed employees who had not been active for years. So the Board changed its policy after a period for notice and comment. The change was approved by two of the Board’s three members, one Obama appointee and one Bush appointee (re-nominated by Obama in 2009).
Of course, airlines didn’t like the new rule. Delta, under investigation by the Board, was the biggest opponent. Today, Republicans, backed by a variety of conservative allies, are insisting that any permanent FAA reauthorization include a provision overturning the regulation. While it’s not the only issue in the standoff, observers have identified it as the “real dealbreaker” and the “big issue” preventing a resolution.
The Republicans’ main argument against the regulation is that it reversed 75 years of Board policy. That’s what Congressman John Mica (R-Fla.), chairman of the House transportation committee, said in a statement following the enactment of the regulation. It’s also how conservative commentators have blasted the new policy. But it’s not a convincing argument.