Airlines Fail to Overturn Obama Rule on Union Elections

An airline industry challenge to a government rule that makes union organizing easier was rejected by a U.S. appeals court, leaving a voting system in place that in 2010 upended 75 years of practice.

The U.S. Court of Appeals in Washington today, upholding a lower court decision, said that the National Mediation Board acted legally in changing the rule for representation elections to require the union to win a majority of votes cast rather than a majority of those eligible to vote. Previously, abstentions were effectively counted as votes against forming a union.

The board’s approval of the rule in June 2010 was a victory for transportation labor unions after President Barack Obama took office and gave the board a 2-1 Democratic majority. The AFL-CIO, the largest U.S. labor federation, requested the change in September 2009.

“Nothing in the section clearly and unambiguously requires that a majority must participate in order to have a valid election,” Judge David Tatel wrote for the 2-1 majority.

The board, which referees relations between labor and management at railroad and airline companies under the 1926 Railway Labor Act, changed the rule last year in a 2-1 vote, with the only Republican member dissenting.

FAA Funding

The rule change has been the main sticking point preventing Congress from enacting long-term legislation to allow the Federal Aviation Administration to operate.

The Republican-controlled House included a provision in its version of the FAA bill that would have overturned the board rule. Democrats in the Senate have objected to that measure.

Senator Jay Rockefeller, the West Virginia Democrat who chairs the Commerce Committee, has said in news conferences that the issue of the mediation board was behind the impasse last summer that led to a two-week partial shutdown of the FAA.

The Air Transport Association of America Inc.’s challenge to the rule in federal court in Washington argued that the board acted arbitrarily and ignored requirements of the 1926 Railway Labor Act. The Chamber of Commerce, along with five employees of Delta Air Lines Inc. who claimed the ruled violated their First Amendment rights, joined as plaintiffs. The lower court ruled against them without a trial.

“We continue to believe, as 75 years of labor law has consistently held, that the majority of those to be represented should have a voice in the union election process, and we will work cooperatively with the NMB to address our concerns,” the airlines Washington trade group said in an e-mailed statement.

The Communications Workers of America, which represents railroad dispatchers and flight attendants, called on Congress to pass an FAA bill in the wake of the ruling.

‘Settles This Issue’

“This ruling settles this issue once and for all: Republicans cannot continue to block the upgrades and job benefits of the FAA over a provision that has the force of law, fairness, and common sense behind it,” the union said in an e- mailed statement.

Delta declined to comment on the decision, referring questions to the Airlines for America trade group, said Delta spokeswoman Gina Laughlin.

While the change also affects rail-union elections, about 90 percent of employees at the major U.S. railroads are already represented by unions, according to the Association of American Railroads.

In contrast, several major air carriers either have employees that are not unionized or are in the midst of union campaigns.

Union Victories

The rule hasn’t resulted in any major airline union victories. An attempt by the Association of Flight Attendants last year to organize Delta Air Line Inc.’s 20,000 flight attendants fell short. The board last month rejected the union’s claims of election interference.

The change was proposed after the Obama administration named former flight-attendants’ union leader Linda Puchala to the board in May 2009, replacing a Republican and former Northwest Airlines lobbyist and giving Democrats a majority.

In bringing suit, the Air Transport Association, now called Airlines for America, which represents the carriers, had argued that the Railway Labor Act allows a union to be certified only with a majority of all eligible voters.

The board cited evidence that employees fail to vote for a variety of reasons, including travel, illness or “apathy” and used political elections as analogy to justify the new rule. In the case of politics, non-voters are assumed to acquiesce in the judgment of the majority of participating voters, the board argued.

‘Traditional of Forums’

“The board’s rule allows employees to exercise that right through the most traditional of forums -- an election,” the appeals court said. “The fact that a majority of eligible voters decides to abstain -- i.e., not exercise its right -- hardly suggests that the majority was deprived of its right.”

In her dissent, Judge Karen LeCraft Henderson said the board’s action further politicized its role by elevating its rule-making function over its role as unbiased mediator. She disagreed with the majority’s contention that without the new rule, an indifferent majority could prevent the resolution of a contest.

“The issue is who determines the representative: the majority of those who vote for a representative with majority participation or the majority of those who vote for a representative without majority participation,” Henderson wrote in a 14-page dissent.

The law declares “loud and clear” that the majority must participate in determining a union representative, she wrote.

The case is Air Transport Association of America, Inc. v. National Mediation Board, 10-5253, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: Michael Riley in Washington at michaelriley@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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