Wednesday, February 15, 2012
With President Obama's signature on the FAA legislation, the FAA finally received the long-term funding certainty it has lacked over the course of 23 temporary funding extensions and a temporary shutdown last August. The legislative disagreement prompting the August shutdown revolved around the following proposed provision:
Section 903 repeals the rule prescribed by the NMB on May 11, 2010, effective January 1, 2011. In May 2010, the NMB changed standing rules for union elections at airlines and railroads, which counted abstentions as votes ‘‘against’’ unionizing, to the current rule which counts only no votes as ‘‘against’’ unionizing, abstentions do not count either way.
For background, the Railway Labor Act (RLA), which governs labor-management relations for railways and airlines, assigns the National Mediation Board (NMB) to oversee those relations and settle disputes over union elections and certifications. On May 11, 2010, the NMB announced a new rule, that going forward it would certify unions where the majority of the voting employees voted to establish a union, as opposed to its previous stance where it had required a majority of eligible employees (including the employees that did not vote) to vote in favor of union establishment. Essentially, employees who had abstained from voting were previously counted as votes against union formation, and were now left out of the final count. As this rule change makes union formation considerably easier, airlines were predictably opposed to the change. On their behalf the Air Transport Association (now Airlines for America) filed suit challenging the new rule. ATA argued that the NMB's new rule violated Section 2, Fourth of the RLA “The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this [Act].” See 45 U.S.C. § 152, Fourth (available here). However, the D.C. District Court and D.C. Appeals Court both upheld the NMB's ruling on the grounds that the quoted section of the RLA did not clearly and unambiguously indicate that the majority of any craft or class referred to the majority of employees eligible to vote as opposed to the majority of employees that actually vote. See Air Transport Ass'n of America, Inc., v. National Mediation Bd., 719 F.Supp.2d 26, D.D.C. 2010 (available here); Air Transport Ass'n of America, Inc., v. National Mediation Bd., 663 F.3d 476, C.A.D.C. 2011 (available here). The failure of the court challenges prompted Republican legislators, presumably representing the interests of the airline industry, to seek to overturn the rule change by statute as proposed above. Democratic legislators, representing labor interests, refused. To avoid further delays to an FAA funding bill the parties compromised by removing the provision, adding the following language in its stead:
The conference committee agreed to amend title I of the Railway Labor Act by inserting after section 10 that the Mediation Board has authority from time to time to make, amend, and rescind, in the manner prescribed by section 553 of title 5, United States Code and after opportunity for a public hearing, such rules and regulations as may be necessary to carry out the provisions of this Act.
The conference committee agreed to amend Paragraph Nine of section 2 of the Railway Labor Act to require that in any runoff election for which there are 3 or more options (including the option of not being represented by any labor organization) on the ballot and no such option receives a majority of the valid votes cast, the Mediation Board shall arrange for a second election between the options receiving the largest and the second largest number of votes.
The conference committee agreed to amend section 2 of the Railway Labor Act by raising the showing of interest threshold for elections to not less than fifty percent of the employees in the craft or class.
The first paragraph alters the NMB's process by which it creates new rules for settling disputes under the RLA, so that any new rules are subject to a public hearing. This brings NMB rule-making more in line with that of other agencies as outlined in 5 U.S.C. § 153. The second paragraph merely adds more detailed procedure for runoff elections. It is the third paragraph that contains the compromise on the part of Democratic legislators and has provoked the ire of labor unions. See Greg Sargent, Unions Set to Blast Dems for Selling Out on FAA Reauthorization, Wash. Post, Jan. 30, 2012 (available here). However, the Transportation Workers Union has reportedly declared the compromise acceptable for the purposes of securing funding certainty for the FAA. See Keith Laing, Transportation Union Blesses Deal on FAA, The Hill, Jan. 23, 2012 (available here). Previously, organizers had to obtain signatures from 35% of the employees in order to hold a union election. The new provision will require signatures from 50% of the employees, a much tougher threshold to meet. The most likely result of the compromise is less union elections, but the elections that are called are much more likely to result in union certification.
All block quotes come from the H.R. 658 Conference Report available here.
Edited for grammar 2/16/12.