For about the last year, I’ve been highlighting a serious flaw in our federal labor laws: On many key issues, they don’t set policy; instead, they delegate power to unelected boards, which each president gets to stack with flagrantly biased nominees. One of these boards is the National Labor Relations Board (NLRB), of course.
Another is the National Mediation Board (NMB), which handles union elections at railroads and airlines. Like the NLRB, it has a good deal of discretion in how it chooses to interpret and apply its authorizing legislation (the Railway Labor Act, or RLA). Its abuse of this discretion has caused a stalemate in the Senate over the FAA-reauthorization bill — but it’s a welcome change that elected officials, rather than presidential appointees, are debating labor law.
As I’ve explained previously, the Railway Labor Act says that in order for a work group (such as flight attendants, etc.) to unionize, a “majority” of the group has to vote for the union. For 75 years, the NMB interpreted those words strictly: To win an election, a union needed votes from a majority of the employees in the group, not just a majority of the employees who chose to vote. In fact, airlines often encouraged employees not to vote, rather than to vote no, because there was no difference.
When President Obama came to office, he naturally flipped the NMB’s membership from 2–1 Republican to 2–1 Democrat (by law, no more than two of the members can be of the same party). The new board pointed out that the NLRB has interpreted similar language in its authorizing legislation, the National Labor Relations Act, to mean that a mere election majority could decide unionization. It then changed its election procedures to match the NLRB’s — and to make it much easier for unions to win elections.
Congressional Republicans stood up to the NMB, pushing to reverse the decision in the FAA-reauthorization bill. The House passed the bill with the provision intact, but the move is controversial in the Democratic Senate, and the resulting stalemate has left the FAA without funding since last Friday.
It is unfortunate that partisan rancor has caused thousands of employee furloughs and the halting of airport construction projects. But if Congress had done its job to begin with, and spelled out explicitly within the NLRA and RLA what constitutes a “majority,” we wouldn’t be in this mess.
We see the same problem with NLRB: The board is trying to adjust the length of time that employers have to prepare for elections, and to tell Boeing where it can and cannot expand production. Both of these are huge policy changes. Neither unambiguously falls outside the board’s authority under the NLRA.