Monday, June 18, 2012
The compromise that enabled passage of February's FAA Modernization and Reform Act (pdf) claimed its first victim this week as U.S. District Court Judge Terry R. Means issued a temporary restraining order preventing the Communication Workers of America (CWA) from proceeding with plans for an election to unionize American Airlines' passenger-service agents. At issue is the provision requiring unions to obtain signature cards from at least 50 percent of workers before conducting a union-representation election. The CWA secured enough signature cards to meet the prior minimum threshold of 35 percent of workers that was in place when it filed for an election in December, but the National Mediation Board (NMB) did not rule on CWA's application until after the new standard was in effect. The NMB voted 2-1 to approve the CWA application under the 35 percent standard in place at the time of filing, and scheduled the election to take place from June 21-August 2. The entire NMB decision, which is available here (pdf), is worth reading. The majority cited Landgraf v. USI Film Products, 511 U.S. 244 (1994) for the proposition that legislation shouldn't be held to apply retroactively unless that is specifically intended, thus leading to the conclusion that CWA's application should be considered under the standard that was in place at the time of filing. The dissenting opinion, however, cites a bevy of case law to support its contention that Landgraf's retroactivity rule doesn't apply to applications to federal agencies which have yet to be considered. Judge Means apparently thought American has a good enough chance of successfully overturning the NMD decision to grant the temporary restraining order. The case is scheduled for hearing June 21. While this particular legal issue is unlikely to have any ramification for airline unions going forward, as the new 50 percent threshold is clearly in place for future union elections, the outcome of this dispute is significant for American and for the workers involved. Passenger-service agents are the largest class of non-unionized workers at American.