The rule introduced some bizarre discrepancies into the law, all of which favored the unions. Because of an awkward new runoff system, write-in votes essentially count as votes for unionization. (If 20 employees vote for the union that’s running, 20 for no union, and 5 for a different union, the subsequent runoff is between the two unions, not the union that’s running and no union.) The decertification procedures weren’t changed to reflect the new system, so now, more votes are needed to deunionize (50 percent of employees still have to sign cards before an election is held) than to unionize. Decertification elections work differently, too: Before, voters chose between the current union and the individual who organized the decertification campaign (upon being elected to represent the employees, this “strawman” simply disclaims a union). Now, they choose between the union, the individual, and no union. The individual’s and the no-union votes are not combined; anti-union campaigners must educate their supporters to vote for one or the other.
After the rule change, the unions brazenly withdrew
their election applications and re-filed them. (The NMB had failed to process the applications while the rule was being changed, even as they handled applications regarding employees at other airlines.) Even after all that, however, the unions weren’t successful. Fleet-service workers
, flight attendants
, stock and store employees
, simulator technicians
, and customer-service workers all voted “no.”
But after these disappointing results, the Association of Flight Attendants (AFA) filed an interference complaint with the NMB. (The International Association of Machinists and Aerospace Workers followed suit yesterday.)
The credibility of the AFA’s claims is questionable — but the NMB is controlled by former union members, and the board’s definition of “interference” is malleable to say the least. The two big questions are these: What is Delta allowed to do to resist unionization? And what did it do?
The problem traces back to the RLA itself, which failed to answer the first question. Here’s the relevant language:
It shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . or to influence or coerce employees in an effort to induce them to join or remain [members of,] or not to join or remain members of[,] any labor organization.
These words are plainly unconstitutional; airlines have a First Amendment right to “influence” their employees — in the normal sense of the word — because they have a First Amendment right to communicate with the people they pay. But in 1930, the Supreme Court defined “influence” in this case to mean “pressure, the use of the authority or power of either party to induce action by the other in derogation of what the statute calls ‘self-organization.’”
The Supreme Court’s 1969 ruling in NLRB v. Gissel Packing Co., which was later applied to NMB procedures, tried to draw a line between the First Amendment and union-election law. It set a few ground rules: An employer can communicate “general views about unionism,” “views about a particular union,” and even “prediction[s] as to the precise effects he believes unionization will have on his company.” One cannot, however, promise to reward or punish employees based on the results of the election.