Railway Labor Act Blog

Richard Anderson’s crocodile tears

September 28, 2009 on 12:01 pm | In Airlines, Collective bargaining, Delta Airlines, Labor relations, National Mediation Board, Uncategorized, Union organizing | No Comments

Delta CEO Richard Anderson stamped his feet last Friday and cried “no fair” at the AFL-CIO’s request to the National Mediation Board that it change its election rules to conduct elections in the same way as under the National Labor Relations Board (and indeed every other election forum in the US) based on a majority of voters (that is, 50%+1 of those who actually vote, not “eligible voters”).

Anderson complained:

“It’s the old if you can’t win under the current rules, go try to change the rules,” Anderson said on his weekly recorded message to employees. He called the move “a stall tactic, pure and simple”

Of course, this complaint of “changing the rules” is rich coming from a company that tried to manipulate an NMB application from its pilots earlier this year to cut off its flight attendants’ and ground employees’ opportunity to vote on unionization. All in defiance of decades of NMB precedent. I guess Anderson’s ox didn’t like getting the horns this time.

The significance of this potential change is that under the NMB’s current rules it compiles a list of eligible voters that consists of every employee who is in the unit (usually for employee groups at airlines the size of Delta, the units contains thousands and often up to 20,000 employees.) This pool of voters is far larger than the units involved in most NLRB elections (which usually number in the hundreds.)

The Board’s rules require that a union get a majority of eligible voters, not of votes. That means it’s not a “first past the post” of who gets a majority among those choosing to vote. Instead, a union has to get a majority of everyone who could vote.

To give an idea of the significance of this difference consider that since 1960 voter turnout in federal elections has only exceeded 50% during presidential election years. In the 12 off-year election cycles (that is the “mid-term” elections) voter turnout has averaged only 40% (read here for the specific numbers.)

So under current NMB rules, there would be a “no” vote in every mid-term federal election since 1960.

As I quoted in my earlier post, the AFL-CIO stated aptly:

Nowhere in American democracy, other than during a union election in the airline and railroad industry, does an eligible voter wishing to sit out an election have his or her silence tabulated as a no vote

Another point worth noting, Anderson’s claim of “fairness” has no merit whatsoever. As I’ve stated earlier in regard to Delta’s antics toward the unionization efforts of its employees, Section 2, Ninth of the Railway Labor Act states specifically that union representation disputes are “among the employees” of a carrier. The airline is not a party to that dispute.

So Delta’s claim of “fairness” is just so much crocodile tears. Since the airline isn’t a party to the question of the Delta employees having a union, it has no basis for claiming what’s “fair” or not. And any such argument is really just code for “it’s not what the company wants.”

In terms of the likelihood of the NMB acting on the NMB’s request, the issue will have the traditional lines drawn between the companies and the unions/employees. On the merits, however, Section 2, Ninth clearly permits the NMB to use a majority of voters rule since the statute gives the Board great discretion in conducting elections, and also does not dictate what “majority of employees” means, but leaves it to the Board’s interpretation as to the majority of “what” it will use–voters or total employees in the craft or class. And Section 2, Ninth states expressly that such elections will be conducted according to rules established by the Board. As noted already, the NLRB has always established the rule that union elections are decided by a majority of those voting. (And the NMB has used such “yes/no” ballots previously in cases where the Board found that employer misconduct tainted the election.)

The purpose of the NMB election under Section 2, Ninth is “ascertaining the names of [the employees'] duly designated and authorized representatives”. Determining who is the “duly designated and authorized representative” requires an affirmative expression of intent by the employees. A vote of “no representative” is a statement that the employee does not designate a representative. But a non-vote doesn’t permit you to “ascertain” the employee’s designation. It’s simply a non-vote that could occur for any number of reasons (including that the employee forgot, didn’t pay attention, etc.)

Under the current rules, of course, a non-vote has developed into a no vote, but that doesn’t change the fact that it is a lack of expression of the employee’s intent that could occur from apathy as much as opposition. Under a statute that affirmatively states its purpose for the NMB to determine who the employees designate as representative, more than measuring voter apathy should be required.

The NMB certainly has the authority to enact such a change in its rules. An election based on the will of those actually voting is more consistent with the Board’s duty to ascertain the employees’ designation of representative. And such a majority of votes (rather than eligible voters) rule is consistent with the practice of elections elsewhere in the labor and non-labor fields.

The merits justify such a change in rule. With a new Mediation Board in place following President Obama’s appointments, perhaps the time is right to achieve that change.