Monday, December 7, 2009

NMB Hosts Open Meeting (or was it a Hearing?) on Proposed New Voting Rule

Group hug Jeffrey Hirsch reported back in early November on the National Mediation Board's (NMB) notice of proposed rulemaking (NPRM) about changing the way union votes are counted in union representation elections under the Railway Labor Act (RLA).  I attended the NMB's open meeting today, held at the National Labor Relations Board (the NMB doesn't have enough space to accommodate large crowds).  Chairman Elizabeth Dougherty, Members Harry Hoglander and Linda Puchala, General Counsel Mary Johnson, and Associate General Counsel Kate Dowling were present.  The NMB officials didn't engage in conversation with the speakers, answer any questions, or make any comments. 

There were no real surprises from the speakers.  Labor advocates want the NMB to change the way it counts votes in union organizing campaigns and, in support of the change, referred to, among other things, the civil rights movement, Democracy, alleged "suppression" efforts by carriers, and changes in the industry, American culture, and technology.  Management advocates called for the NMB to rescind the NPRM and commented that the proposed new rule appears to be a politically motivated effort to make it easier for unions to win representation elections.  Management advocates also urged the Board to implement a decertification process if it moves ahead with the new voting rule. 

Now might be a good time to dust off Sections 2, Fourth and 2, Ninth of the RLA, along with a copy of the Administrative Procedure Act.

A list of the speakers follows.

  • Robert Siegel, Air Transport Association of America
  • Edward Wytkind, Transportation Trades Department, AFL-CIO
  • Joanna Moorhead, National Railway Labor Conference
  • John Prater, Air Line Pilots Association International
  • Robert DeLucia, Airline Industrial Relations Conference
  • Robert Roach, International Association of Machinists and Aerospace Workers
  • Jack Gallagher, Delta Air Lines
  • Carmen Parcelli, Transportation Trades Department, AFL-CIO
  • Randel Johnson, US Chamber of Commerce
  • Marianne Bicksler, Association of Flight Attendants - CWA
  • Sandy Gordon, Delta Air Lines
  • Joel Parker, Transportation Communication International Union/IAM
  • Candace Bruton, Self
  • John Conley, Transport Workers Union
  • Edward Bahmer, Self
  • David Bourne, International Brotherhood of Teamsters
  • Claude Sullivan, Ford & Harrison LLP
  • Janette Rook, Association of Flight Attendants
  • Douglas Hall, Regional Airline Association
  • Kate Brofenbrenner, Cornell University
  • Keith Borman, American Short Line and Regional Railroad Association
  • John Murphy, International Brotherhood of Teamsters
  • Roger Briton, Airline Services Council of Nat’l Air Transportation Assc.
  • David Boehm, Self
  • Donald Maliniak, Littler Mendelson, P.C.
  • Richard Shaughnessy, Communication Workers of America, Local 6001
  • David Livingston, Self
  • Samuel Berry, Self
  • Beth Graham, Self
  • Ressel Rego, International Brotherhood of Teamsters
  • Raymond LeJeunesse, National Right to Work Legal Defense Foundation, Inc.
  • Reginald Robinson, International Brotherhood of Teamsters
  • James Dolezal, International Brotherhood of Teamsters

Kevin Kraham

http://lawprofessors.typepad.com/laborprof_blog/2009/12/nmb-hosts-open-meeting-or-was-it-a-hearing-on-proposed-new-voting-rule.html

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Comments

I'd bet a dollar that none of the so-called "Labor advocates" would endorse a rule permitting deAUTHORIZation under the NLRA by simple majority vote.

What was that principle they were endorsing again?

Posted by: James Young | Dec 7, 2009 5:30:56 PM

Especially here, where the topic is the RLA.

Posted by: Per Son | Dec 8, 2009 5:57:12 AM

Alleged suppression - I still have my dusty VCR tape from U.S. Air's Piedmont merger election in the late 1980s. It is entitled, "Destroy Your Ballot." I used the tape in my labor law class last year posing the question, how much of this would violate 8(a)(1)if we were in an NLRA environment? (Answer: a significant percentage, even using the standards of the Bush Board). The students are uniformly amazed at the rhetoric.

Posted by: Michael Duff | Dec 8, 2009 7:14:19 AM

No matter what one calls it ("suppression" or "free speech" or something else), a carrier's communication with its employees is protected by the First Amendment to the United States Constitution (provided, of course, that the communication doesn't constitute a threat, a promise, or interrogation).

In one of AFA's attempts to organize Delta's flight attendants, the NMB determined that Delta's "Give a Rip" campaign (sounds like it might be similar to the "Destroy Your Ballot" campaign) was permissible. Delta Air Lines, 30 NMB 18, 131-32 (2002). The NMB held:

The Board has repeatedly stated that accurately portraying the way an employee can vote no is not interference. Express I Airlines, 28 NMB 431 (2001); Delta Air Lines, Inc., 27 NMB 484 (2000); American Air Lines, 26 NMB 412 (1999).

According to AFA, Delta created its “Give a Rip” campaign to ensure that flight attendants would not vote for AFA. The slogan appeared in Delta literature, on posters in crew lounges, and in flight attendant mail boxes. In addition, In-flight supervisors wore “Give a Rip” pins.

In Delta, above, the Board found no interference stemming from Carrier videotapes urging employees to vote no. In American, above, the Board did not find interference where the carrier’s newsletters stated “the best way to avoid a union is tear up a ballot.”

The Board finds that Delta’s “Give a Rip” campaign did not taint the laboratory conditions.

Id. Students might be amazed to learn this, but, then again, we're talking about the wonderful world of the RLA.

Posted by: Kevin Kraham | Dec 9, 2009 10:01:12 AM

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