This week’s National Mediation Board (NMB) hearings gave us another example of the Administration’s ongoing efforts to further Labor’s agenda and make it significantly easier for unions to organize. In an effort to reverse 75 years of experience in conducting union elections under the Railway Labor Act (RLA), the new Obama-appointed NMB member, with a union background, joined with another member, also with a union background, in an attempt to steamroll adoption of a change in NMB voting procedure which would eliminate the need for a union to demonstrate majority support in the voting unit it is attempting to organize.

At the hearings, John Conley, a representative of the Transport Workers Union, stated candidly his union’s position that labor needs this change because unions were not winning enough elections. This admission is astounding, considering that the rate of union election successes under the RLA far outstrips that under the NLRA. During the first six months of this year, unions were winning 73% of all NLRB elections, up from 66% last year. According to the unions, however, winning almost three out of every four election is still not enough.

Several of those testifying painted a grim picture of both “labor politics” and the lack of NMB neutrality exhibited in the proposed rulemaking. What really is driving this issue for the unions is the merger of Delta Airlines and Northwest Airlines. Following the merger, the two unions representing former Northwest Flight Attendants (AFA) and Mechanics (IAM) faced elections at the post-merger Delta, in which union members would vote with Delta’s unrepresented employees in the same voting units. Both unions filed for elections, but, following delays in processing those election applications by the NMB — and coincidentally,just days before the NMB announced the rulemaking — both unions withdrew those applications, likely anticipating an easier road to victory. The timing of these events calls into question the integrity of the NMB process. Considering the enormous stakes the unions have in these elections, involving tens of thousands of employees and potentially millions of dollars in dues revenue for the unions, the handling of its notice of proposed rulemaking (NPRM) casts a shadow over the NMB’s actions.

Further illustrating its results-driven approach is the fact the Board is ostensibly limiting its review to just a single change in voting procedures, without addressing other changes which are equally critical for review. At the hearing, Randel Johnson of the U.S. Chamber of Commerce criticized the Board for ignoring the Chamber’s proposal that as the Board considers changing its voting rules, it should also consider establishing a clear decertification procedure.  Johnson argued that if the Board makes it easier for unions to organize, it should similarly protect the rights of employees who no longer want unions that fail to represent them adequately. This argument is all the more compelling if the Board’s rule changes allow representation by unions selected by only a minority of the electorate.

Roger Briton, a Jackson Lewis partner, appeared at the hearing on behalf of the Airline Services Council of the National Air Transport Association, an aviation industry ground handling group. He cautioned the Board about the potential instability which is likely to follow the proposed rule change.  Briton’s remarks submitted at the hearing are available here.  Regrettably, union’s organizing agenda is being adopted and advanced by a friendly NMB majority.

Connect the dots…. The same week these proceedings took place, the Department of Labor announced it would seek to reinterpretation the “advice” exception under the Labor-Management Reporting and Disclosure Act (LMRDA) so as to broaden the application of the law. The unstated objective is to chill employer free speech in union organizing situations, making it easier for unions to organize.


Connect the dots…. The pending EFCA labor law reform proposal has as one of its components the imposition of harsh financial penalties against employers who may improperly express their opposition to unions. To avoid the possibility of such penalties, employers are likely to give up their free speech rights and limit their opposition to union organizing, making it easier for unions to organize.


Connect the dots…. Amending the NMB election procedures, as proposed by the two Board members, would allow the selection of union representation not by a majority of employees, as has been the case for the past 75 years, but rather by a minority of eligible voters. The objective it to make it easier for union to organize.