When Delta merged with Northwest Airlines two and a half years ago, it set the stage for an epic Big Business–Big Labor battle. Northwest was heavily unionized, but at Delta, only the pilots and flight dispatchers belonged to labor organizations. A series of elections would determine whether Delta, which employs 75,000 people, would succumb to organized labor — or whether former Northwest employees would lose their representation.
The resulting confrontation — which is far from over, despite the conclusion of the final election Tuesday — highlights both the bizarre web of policies that govern how airline unions operate and the arbitrary power that a biased government agency can exercise over the unionization process. Following the merger, unions waited to call for a vote until the Obama administration had nominated two-thirds of the board that would oversee the elections; asked those appointees to change the election rules in their favor; delayed the elections so that they would take place under the new rules; lost anyway; and are now alleging “interference” on Delta’s part — allegations that the board can use to demand a new vote.
CHANGING THE RULES
Unlike most other industries, airlines are governed by the Railway Labor Act (RLA) instead of the National Labor Relations Act (NLRA). Passed in 1926, the RLA was designed to keep the nation’s railroad infrastructure operating by making organizing and striking difficult. Less than a decade later, Pres. Franklin D. Roosevelt expanded it to cover airlines as well. Under the RLA, individual workplaces cannot organize; rather, entire “work groups” within a company (which for airlines means flight attendants, customer-service workers, pilots, etc.) must vote for representation.
The RLA also advantaged management when it came to union elections. Employees who didn’t vote counted as “no” votes because, according to the law, a union needed support from “the majority of any [work group] of employees,” not just a majority of those who voted.
The three-member National Mediation Board (NMB) has implemented the RLA since 1934. Its members are appointed to three-year terms by the U.S. president, with the stipulation that no more than two members can be from the same political party, and its decisions are almost always final. When Delta and Northwest merged in April 2008, George W. Bush had been president for close to eight years, so of course the NMB’s balance was 2–1 Republican. Since employers can’t call for representation elections, the unions had the option of waiting until the NMB’s composition was more favorable.
They did, and as if on cue, Obama rode a tidal wave of Big Labor donations into the White House. Two NMB seats quickly became available, one held by a Republican and the other by a Democrat. Obama renominated the Democrat, Harry R. Hoglander, and nominated Democrat Linda Puchala to replace the Republican. Both have close ties to Big Labor. Hoglander was once the executive vice president of the Air Line Pilots Association. Puchala’s previous jobs, according to her official bio, include “International President of the Association of Flight Attendants-CWA, AFL-CIO, and Staff Director, Michigan State Employees Association, AFSCME, AFL-CIO.”
The appointments were finalized in mid-2009, and the unions finally called for elections for most of their work groups. But then, evidently, they got a better idea. In September 2009, they sent a letter to the NMB with an interesting proposal: The NMB could, by administrative fiat, change the election rules, requiring unions to get a majority of votes instead of a majority of employees.
The Obama appointees drafted the rule, handed it to the board’s Republican member, and gave her 24 hours to review it and draft a dissent before it was published in the Federal Register. That Republican, Elizabeth Dougherty, was not happy, as her dissent makes clear. Not to mention that the proposal called for a drastic shift away from a 75-year-old policy — and arguably violated the law, which requires a majority of “employees,” not of “votes.” But after a comment period and an unsuccessful lawsuit from the airline industry, the rule change went through. (All three NMB members declined comment.)
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.
These general rules can be hard to apply to specific situations, however, and that’s where the NMB’s precedent comes into play — and where things get well-nigh incomprehensible. Carriers can teach employees how to vote “no,” but can’t run a “pervasive” or “overwhelming” campaign or say things that are “inaccurate” or “misleading.” (Oh, and statements that are “untrue” don’t necessarily meet this criterion.) Companies can’t change “working conditions” during an election period, unless such changes were planned in advance or there is “clear and convincing evidence of a compelling business justification.” “Isolated incidents” can’t support a finding of interference, but the “totality of facts and circumstances” can.
Throw into the mix the rambunctious nature of union elections — aided by huge budgets and teams of lawyers, each side’s leaders go exactly as far as they think they can get away with, and without fail some of each side’s ground troops go too far — and you have a system that’s governed not by law, but by the sympathies of the judges, the ranks of which often include former airline lobbyists or union officials. Businesses simply have to guess how much leeway the current NMB will let them have.
So, what was Delta’s guess? The AFA declined to comment on the record, but provided National Review Online a copy of its complaint. Many of the allegations are frivolous; for example, the union objects to Delta’s encouraging employees to vote from work computers (this supposedly creates a forbidden “on-site polling place”), and want a new election with no Internet or phone voting — even though the union successfully advocated Web voting, over resistance from Delta, under the old system. (Since those who didn’t vote were counted as “no” votes, the unions wanted to make voting as easy as possible.) Other claims are outright assaults on Delta’s First Amendment rights; the AFA finds it nefarious that Delta made accurate statements about the new rules, such as that “to be counted, you must vote,” and that write-in votes “could help AFA win.”
But some claims, if true, do represent misbehavior on the part of some Delta employees. (To be clear, Delta is no angel; it was unanimously found to have interfered in a simulator-technicians election earlier this year.) Someone with any sympathy to business would note that any union-election campaign will have some misbehavior. Such a person might also give some credence to Delta’s allegations that the AFA engaged in equally aggressive tactics. But the NMB’s two former union officials — one of them a former AFA international president, to be precise — might be more inclined to ask: What’s so wrong with seeing the following as a “totality of facts and circumstances” rather than a collection of “isolated incidents”?
Allegedly, numerous supervisors were more thorough in enforcing Delta’s advocacy policy — which, for example, forbids employees to wear pins “larger than the Delta Service award pin” on company time — against pro-union than anti-union workers. In an Atlanta crew lounge, a PA announcement aired claiming that “Everyone must vote!” and advising, “If you have not voted, bring me your [computer-login information] and I will vote for you!” And so on; there are countless tiny violations like these alleged in the brief.
And what about the following description of Delta’s overall campaign? Sounds “overwhelming” and “pervasive,” doesn’t it?
When opening the mail, an employee was likely to find one of Delta’s glossy oversized mailers or a DVD of [Delta CEO] Richard Anderson’s “Nexus” webcast. When answering the phone, an employee might hear the voice of a supervisor instructing them to vote. If staying at a layover hotel, Flight Attendants might have been accosted by a supervisor. This campaign increased when Flight Attendants arrived at work . . .
Also, the gap between the merger and the vote gave rise to some odd situations. For example, when the company gave a raise to its pre-merger Delta attendants, it simply continued to pay former Northwest attendants under their union contract, noting in a communication that it could not “align” pay between the two groups until the unionization issue was resolved. AFA says this is an implicit promise of benefits to employees who go non-union. Also, in a conference call with employees, Anderson noted that other work groups that had voted “no” had received raises, adding suggestively that he could not be more specific about what would happen to flight attendants’ pay without risking an interference claim from the union.
Delta will respond to the allegations later this month, and at that point the NMB will decide whether to allow the case to proceed.
The unions have already succeeded in gaming the system in ways that should appall a disinterested observer: They timed their election filings so they would face a sympathetic NMB, and then audaciously re-filed after that NMB changed a 75-year-old rule in their favor. Now, they are launching a throw-everything-at-the-wall legal campaign to discard the votes of thousands of Delta employees — and because the NMB hasn’t clearly established what is and is not allowed, they very well may succeed in this, too. In the meantime, Delta cannot move forward in aligning its employees’ pay, and those employees must be dreading the prospect of another exhausting barrage of pro- and anti-union propaganda.
– Robert VerBruggen, an NR associate editor, runs the Phi Beta Cons blog.