Aviation Week, December 8, 2009, Tuesday

Aviation Week

December 8, 2009, Tuesday

Aviation Week

A recent study by Cornell University, claimed to be the first and only comprehensive study of organizing under the Railway Labor Act, may add a new twist to the arguments in favor of labor’s support of a proposed rule by the National Mediation Board (NMB) on how unions are elected.

Kate Bronfenbrenner, director of Labor Education Research for Cornell’s School of Industrial and Labor Relations, told the NMB yesterday in a one-day hearing on the subject that the data clearly show that without the proposed rule by the NMB, “voter suppression will continue to interfere with the laboratory conditions the NMB is supposed to provide workers voting under the RLA.”

She said that in other industries where only the votes cast count, voter turnout averages 88%. But under the RLA, voter turnout is quite low on average because while unions focus on getting potential new members out to vote “yes,” employers try to suppress voter turnout by confusing voters about the procedures, or by asking them to destroy their ballots.

She said voter suppression takes many forms, such as threatening bankruptcy, making some positive changes in pay or benefits to make employees temporarily happy, initiating layoffs, and sending misleading information about the election procedures. In nearly half of all RLA elections Cornell studied, five or more anti-union tactics were used, and in 27% of them, 10 or more tactics were used.

The board also heard testimony from Marianne Bicksler on behalf of Delta flight attendants and the Association of Flight Attendants. Bicksler, who was an inflight supervisor at Delta in 2001, said that as the AFA organizing effort gained momentum, Delta hired a consulting firm specializing in suppressing union elections, and counseled supervisors to “intimidate” flight attendants. “We were taught how to confuse them,” she said, including actions such as how to block union tables from the lounge area. Supervisors who were not aggressive enough were counseled, and offered bonuses as part of a strategic “union-avoidance objective,” Bicksler said. Delta management encouraged the Give A Rip campaign against the AFA, which encouraged flight attendants to “give a rip” about the company and rip up their voting ballots. Cornell’s Bronfenbrenner noted in her remarks that “this is not just a Delta issue. We found that employers used this tactic with at least one or more voters in 67% of our sample.” She said this tactic is most disturbing because “once the ballot has been torn up, it represents a no vote even if the voter changes his or her mind.”

It was the Transportation Trades Dept. (TTD) that sought the proposed rule from the NMB, and President Edward Wytkind said the system has fostered a culture of voter suppression. He also said the proposed rule in on way changes mediation procedures, so it will, therefore, have no bearing on strike actions. “It is time to permit airline and rail workers to vote on the question of unionization under the same democratic standards used in all other elections – from union elections conducted under other labor laws to congressional elections.”

But Jack Gallagher, an attorney for Delta, said the argument that it is inappropriate for an employer such as Delta to tell its employees not to vote for unionization is “patent nonsense” when unions “marshal all kinds of resources” to garner support. Gallagher argued that the AFA, as well as the International Association of Machinists and Aerospace Workers (IAM) clearly could not convince a majority of their respective workers to join either union, and therefore resulted in pushing for this sweeping rule change.

Perhaps most importantly, Gallagher asked at the end of his statement that if the NMB does not withdraw its current proposal, it could amend it to not apply to any previously announced mergers, thereby not affecting the outcome of AFA or IAM unionization efforts.

Also speaking on behalf of airline management, Robert Siegel of O’Melveny & Myers, representing the Air Transport Association, kept his remarks focused on the “wholly deficient process that the board has put in place for its consideration of the NPRM.”

The ATA believes two of the three board members are rushing through the proposed rule without proper debate. As NMB Chairwoman Elizabeth Dougherty herself claims, she was excluded from internal deliberations, and the other two members only brought her into the process at the end. Siegel said the way it was handled the proposed rule “severely damaged the board’s hard-earned and long-standing reputation” as being impartial.

Siegel also said the board appears to have predetermined how it will act because it included a full legal argument to justify the proposed rule and rebut any preliminary objections when it issued the proposal.

As to the proposed rule change itself, Siegel said that if a union is elected without majority support, it cannot truly represent the employees it purports to count as members. But the losers will not just be unions and carriers and employees, he said, “but also the board itself — which will have jettisoned its hard-earned reputation as an honest broker and disinterested referee, and thus will have jettisoned its ability to insure the labor relations stability that Congress intended it to provide.” The ATA will submit its full legal argument to the board on Jan. 4.

Joanna Moorhead, general counsel for the national Railway Labor Conference echoed those sentiments, saying her concern is with the process of issuing the rule. She said the board has long been known for its measured and deliberative style, and whenever it has considered a “sweeping change,” it only proceeds with agreement of all three members. She called for the board to rescind its proposed rulemaking and launch a “full evidentiary process.”

But John Prater, president of the Air Line Pilots Association, noted that it is time to move on this “important update” to laws of the 1930s. He noted that in Canada, unions win representation if they can simply show a majority of authorization cards seeking an election. And although the NMB is not being as radical, its proposal is a long overdue step, Prater said.

He also said it is disingenuous for opponents of the proposed rule to try to tie mediation and representation issues together. The board’s duties in these two areas are distinctly different, he said.

Robert Roach, head of the IAM, asked how anyone could argue against change. Quoting Martin Luther King, Roach said, “The time is always right to do what’s right.” He said the argument by some that 75 years of law should not be changed, is not an argument.

Randy Johnson, senior VP for labor integration and benefits at the U.S. Chamber of Commerce, argued for a decertification mechanism in the proposed rule that mirrors the certification process. The airline representatives have over the past several weeks made the same argument as Johnson, that if a majority of employees can choose a union, then they should have an equal right to decide to eject a union.

Photo: IBT