Unionization Through Regulation


Changing election rules to favor one side is something we usually associate with dictatorships. Yet a U.S. federal agency did just that recently, as part of the Obama administration's efforts to impose policy changes favorable to organized labor without the consent of Congress. And, as in a dictatorship, the result is very difficult to undo.

For years, the Railway Labor Act (RLA), which regulates labor relations in the nation's railroads and airlines, required that a majority of workers in a bargaining unit would need to vote in favor of union representation for a union to become certified to represent the workers. That voting rule stood for 75 years. Last July, however, the National Mediation Board (NMB), the agency that resolves labor disputes under the RLA, changed the rules to allow a union to become certified with only a majority of actual votes cast.

The rule change would allow a union to become certified as the monopoly bargaining representative for a group of workers with only a minority of those workers voting in favor of the union. For example, in a bargaining unit of 100 employees, if only 80 workers show up to vote, the union would only need 41 votes to become the legally mandated representative of all workers in the bargaining unit.

The NMB changed the RLA's voting rule after two bargaining units at Delta Airlines voted against joining the International Association of Machinists and Aerospace Workers (IAM) in March 2010. The IAM and other unions went on to lose other elections at Delta later that year, held under the new rules. Workers in those elections voted against union representation by substantial margins. However, in more closely fought contests, the new rules would enable to win elections they would otherwise lose. Invariably, that means that a union would be able to become certified as the sole bargaining representative without a majority of the workers it represents having voted for it. 

This is not a hypothetical scenario. One union has already won in a minority vote because of the rule change. On November 5, 2010, in an election under the new rules, passenger service agents at Piedmont Airlines voted on whether to join the Communication Workers of America (CWA). CWA did not win the 50 percent-plus-one of votes of all members of the bargaining unit required under the old rules, yet was certified as the employees' bargaining agent. Out of 2,867 eligible voters, CWA won 1,107 votes, with only 638 No votes. Thus, 1,760 employees who did not vote for CWA representation will thenceforth be required to pay dues to the union. 

Congress has an opportunity to fix this giveaway to Big Labor. The FAA Reauthorization Act of 2011 (H.R. 658) would restore the old voting rule requiring a majority of workers in the bargaining unit to vote for a union in order for the union to be certified as those workers' exclusive bargaining representative. However, Big Labor and its allies in Congress will fight tooth and nail to preserve their new advantage. Reps. Steve LaTourette (R-OH) and Jerry Costello (D-Ill.) have introduced an amendment to remove the language implementing the change back to the original rule from the bill.

Restoring the old rule is especially crucial in light of the fact that, under the Railway Labor Act, workers who vote for a union but become dissatisfied have a near-impossible time voting the union out. This needs to be reformed as well. 

The RLA needs a straightforward decertification provision. The National Labor Relations Act, which regulates private sector labor relations in all industries other than airlines and railroads, allows employees to hold an up-or-down vote on whether to decertify a union if 30 percent of workers in a bargaining unit show interest.

Under the RLA, it is technically possible for workers to decertify a union, but it is extremely difficult. Workers unionized under the Railway Labor Act have to wait two years after the union is certified to launch what is called a "straw man" election. They must show interest from 35 percent of workers, compared with the NLRA's 30 percent. An option for outright decertification may not be placed on the ballot. Instead, following the two-year waiting period, the workers seeking decertification then have to put up an individual or create a fictitious organization — the straw man — to challenge the incumbent union. 

With Congress having rejected changing the law to favor unionization, the Obama administration is now pursuing unionization through regulation, which will benefit no one other than the administration's union allies. Congress needs to hold National Mediation Board accountable for any attempt to circumvent the people's elected representatives. In addition, Congress should reform the Railway Labor Act to make the election process more responsive to workers. The choice of whether to join a union or not should belong to the workers, not union organizers or government bureaucrats.