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« The NMB Finally Issues Its Representation Rule: What’s Next For The US Airline Industry? »

Today, the National Mediation Board issued a new rule governing union organizing that is probably the most controversial thing this government panel has ever done.

So, after sifting through 103 pages of legal citations falsely hoping that the rule as proposed in December would have been changed to address at least some of the opposition’s concerns, I now realize the truth: The NMB has become a political body.

Don’t get me wrong – I’m a registered Democrat so this not a rant against all things Obama. But there are places politics shouldn’t figure so heavily and the NMB should be one of them.

The new representation rule comes as Delta and US Airways are suing the government over its proposed solution to the slot swap between the two carriers; and just a week or so since implementation of that visionary tarmac rule.  So yes, I am in a bit of a cynical if not downright snarky mood today.

In the final rule filed in the Federal Register, the National Mediation Board summarized:  “As part of its ongoing efforts to further the statutory goals of the Railway Labor Act, the National Mediation Board (NMB or Board) is amending its Railway Labor Act rules to provide that, in representation disputes, a majority of valid ballots cast will determine the craft or class representative. This change to its election procedures will provide a more reliable measure/indicator of employee sentiment in representation disputes and provide employees with clear choices in representation matters.”

In its proposed rule, the NMB is seeking to change the election process by which unions organize workers in the railway and airline industries. The new rule that will change 75 years of practice, would for the first time determine the outcome of union representation elections in the airline and railroad industries based on a majority of those who vote rather than current practice, where a majority of all eligible voters must support joining a union.

It doesn’t take a magnifying glass to read between the lines. The NMB is doing organized labor a big favor with this rule. So it is laughable to me that the Board describes the change as part of its “ongoing efforts to further the statutory goals of the Railway Labor Act.”  Funny, because the overarching statutory goal of the RLA is to minimize the disruption on interstate commerce stemming from labor-management disputes.  And this rule would likely do just the opposite, with unintended consequences, by increasing the likelihood of union activities that could yet be another destabilizing force in an industry that needs anything but -- a destabilizer that comes just as the industry tries to consolidate in order to stabilize.

The first 81 pages of the document were a little dry.  But starting on page 81 the dissenting opinion of NMB Chairman (and sole Republican member) Elizabeth Dougherty began: “I dissent from the rule published today for the following reasons: (1) the timing and process surrounding this rule change harm the agency and suggest the issue has been prejudged; (2) the Majority has not articulated a rational basis for its action; (3) the Majority’s failure to amend its decertification and run-off procedures in light of its voting rule change reveals a bias in favor of representation and is fundamentally unfair; and (4) the Majority’s inclusion of a write-in option on the yes/no ballot was not contemplated by the Notice of Proposed Rulemaking (NPRM) and violates the notice-and-comment requirements of the Administrative Procedure Act (APA).”

Ouch.  But no matter. The Final Rule will become effective on June 10, 2010, unless opponents use the courts to stop it.

Let the Lawsuit Begin

The industry, speaking from the Air Transport Association platform said:  "It is quite clear to us that the NMB was determined to proceed despite the proposed rule's substantive and procedural flaws, leaving us no choice but to seek judicial review." 

The unions, of course, took a different tack. The AFA-CWA, a big winner here as it seeks for the third time to organize flight attendants at Delta, made clear where it stood on any legal challenge. "We applaud the NMB for taking this historic and courageous step to bring democracy to union elections. By allowing workers to have a voice in these elections, whether it be yes or no [author adds: or by write in], will only bring benefits to all parties. We look to airline management and their third party supporters to respect their employees' voices and the concept that guides our country every day, and not to bog down this significant achievement in legal appeals."

Having now devoted four blog postings to this subject, I may qualify as one of those third party supporters. Not because I’m carrying water for airline management, but because I think this rule stinks just like the tarmac rule and decision by this administration on the slot swap.  The only hope I have with this rule is that the incumbent unions start to be smarter in their negotiation strategies.

Included in a statement by AFA-CWA International President Patricia Friend’s statement lauding the cram down rule is her insistence that job security is a union function.  What is job security in today’s world?  Is it contract language?  Or is it a strong company?  When I think of pilot scope language that is designed and negotiated for the sole purpose of protecting jobs I see 14,000 mainline pilot jobs lost and nearly 800 narrowbody aircraft taken out of service because the economics (largely unproductive labor) could not translate into profitable flying.  But that unproductive labor paid union dues – for awhile.

I have a lot of union experience.  I worked as a local union president.  I have experience as an advisor to labor in distressed negotiations.  I serve in a union-appointed Board of Directors position at Hawaiian Airlines. While I know there is strong flight attendant union leadership at Hawaiian, the same cannot be said around the industry and I note in particular American and United and US Airways.

From what I can see, airline unions are all about yesterday.  Bankruptcy did not fix the labor problems at airlines or the ability of many airlines to manage their costs with still-bloated income statements.  But still the unions want to look back, back when labor costs were even higher and productivity was at an all-time low.  If productivity was given in the restructuring negotiations, union-represented employees would be earning more today.  But I digress.

Let me be clear.  I am not saying that unions are all bad.  Good leadership on the union side and a willing management can make deals.  Look at the most unionized carrier in the US industry – Southwest – which thanks in part to a strong relationship with its unions has managed to pay well and do well in the marketplace by building a great corporate culture and making productivity and customer service a priority.

But unenlightened and parochial thinking pervades the leadership ranks of many other airline unions.  The industry will continue to face change and challenges. Unions that adapt and are able to let go of the past will flourish.  Unions that cannot adapt to the new direction of the global airline industry will struggle to deliver for their members. 

And Why Are We Changing This Rule?

It is pretty simple and transparent.  Neither the AFA-CWA nor the IAMAW believes that they have the votes necessary to win an election in their efforts to organize the combined work forces from the merger of Delta and Northwest.  So labor prompted a friendly administration to change the union representation process to help them pick up these coveted new members – particularly on the Delta side where the flight attendants and maintenance workers have never been union.  Imagine how happy those former Delta employees must/will be?

Or, as the union leaders have clearly calculated, if you fail to win hearts and minds at the ballot box (as they have not once but twice) then change the rules. And despite an outcry and outpouring from the industry about the rule as first proposed by the NMB, the Board made no changes to address the concerns expressed by opponents. Instead the rules were relaxed even more to the advantage of unionization. Decrease the barriers to entry (union representation) and leave the barriers to exit high (no direct union decertification procedure).  So off we go to court.

As I have written before, it is not so much the rule change as the way the "politically neutral" NMB went about it.  With the tarmac rule it is the arbitrary nature of the three hours.  With the slot swap deal it is denying the incumbent carriers the right to sell what they invested in over the years and determine an adequate return on that asset.

I understand that most things governmental are heavily political.  But politics have had too much influence over this industry, and not for the benefit of the airlines or the hundreds of thousands of workers they employ.

More to come.

Reader Comments (19)

I agree with the politics part and maybe it is a favor to the unions for helping get Obama into office but it's no different than the Minerals and Mining agency with their sex ,drugs and Alcohol scandal under the Shrub and all of these weakened Coal mining rules that killed a friend of mines uncle in W .VA or the deregulation in off shore drilling that caused this catastrophe in the Gulf of Mexico.I am an IAM member at NWA that got gobbled up by delta nd our former CEO Richard Anderson and just the fact that we in the IAM have to work for R.A. again leaves me and my union brothers and sisters from NWA with a bitter taste and you must know of his past in the industry with Eastearn Airlines.Five years ago we gave concessions that cost us aprox. $15,000 each while the NWA execs walked away with millions from those concessions and not to mention they all sold their NWA stock prior to the Bankruptcy and made millions there and and didn't even get a slap on the wrist stating that they had no idea the BK was coming.If I don't have a CBA I will be a 51 year old man making $12 and hour without bene's.I am curious to know how you measure productivity in the Airline industry?I ask this because I work with a great bunch of folks in DTW and we work with and average of 3 people per flight on the ramp side to park ,chalk , hook up A/C-heat,plug in the APU,dump 150 bags and do the reverse to load the plane to get it out of the gate on time, that's how Imeasure produstivity because we are doing much much more with less and less people amd we make 20% less on wages and United health care for major medical from which Richard Amderson came from after he left NWA.I truly think you need to look back to this article and realize that people like myself and my union brothers and sisters need to be unionizedjust because of R.A. and his cronies running Delta and really aren't here for any other reason than to keep out the IAM so they fill their pockets to overflowing!!!!!!

05.10.2010 | Unregistered CommenterChris W

What’s most concerning is that the NMB did not provide an equal process to return to non-union status should you wish to do so in the future. True decertification is not just the ability to change unions, but to vote a union out entirely. So the AFA, if elected, may never have to stand for re-election and it is unlikely that Delta flight attendants would be able to vote the union out if they became dissatisfied with union representation.

When the AFA asked to change the voting rules, they said they wanted the NMB to adopt an election process consistent with union elections conducted under the National Labor Relations Act (NLRA). The AFA fails to acknowledge that the NLRA includes an equal decertification process. In its rule, the NMB has not included a comparable decertification process, making it easier for the AFA to be voted in and nearly impossible for a large workgroup like like Delta ever to become union-free.

05.11.2010 | Unregistered CommenterRyan A

@Chris W - If you aren't happy... find another job. It's as simple as that.

05.11.2010 | Unregistered CommenterChris

Chris, you can also Vote Yes for the IAM

05.11.2010 | Unregistered CommenterRoger

Funny, I don't remember the ATA complaining about the NMB being political when Bush announced that there would be no airline strikes during his reign or when contract negotiations were allowed to drag on for years after amendable dates. Guess politics are involved only when things aren't going your way.

05.11.2010 | Unregistered CommenterMike

Oh dear - so much to say and so little paper...

I have to snap my fingers in Chris W's face and bring him back to the topic at hand - I mean, I'm sorry about your friend in the mines but that is not what we are talking about here, is it? As much fun as the sex and drugs in the minerals and mining industry sounds...let's bring it back to reality and talk about THIS topic and the NMB.

Same fingers snapping at Mike - stop whining about what happened 10 years ago when Bush took office (side note - did W back up his words? were there any strikes?)

Okay, this topic - the NMB changing the rules in order to get a union passed at an iconic legacy carrier. This reeks of inside job and kickbacks...I mean c'mon, a former leader of the AFA is on the National Mediation Board that strong armed this ridiculous rule!

I'm a Delta retiree and worked very hard for the majority of my life to make that company successful. When the time came that I felt I could do better outside of Delta and that I was not being fairly compensated, I left. I didn't sit around and cry about being mistreated by management - I did something about it.

Unions are nothing more than a tool used by the lazy and weak-minded to allow them to continue to be lazy and weak-minded. Stop standing around with your hand out and waiting for others to give you something you don't deserve...stop the entitlement attitude.

As far as your work and renumeration goes - I know you make more than $12.00/hr so stop that garbage right there. In fact, let's talk about how much MORE $$$ the Delta folks are going to be making because of needing to be brought up to your pay rates! Your people and your union have you so overpaid that the folks at DL are getting a big raise! I know this as two of my neighbors still work for DL and they've told how much more they are getting.

Let's talk about "dumping" bags - yeah, if that's what you are doing to baggage then you don't deserve minimum wage - you should be fired and sent to the farm to bail hay. And "chalk" (sic) and airplane? It's called "chock" - why should you be well paid, you don't even know your own job!

Richard Anderson is your CEO, not Richard Amderson.

But hey, why split hairs...and since everyone else wants to talk about ancient history and matter unrelated - here's my two cents. The NWA union workers at Boston Logan airport murdered one of their supervisors for bringing them to task for a luggage theft ring. MURDERED!!!!! Yeah, let's give these jerks more job security.

Pathetic...the whole thing is absolutely pathetic.

05.11.2010 | Unregistered CommenterNoel C

This ruling just brings the RLA into line with life.
- If you want a union, vote for a union.
- If you don't want a union, vote against the union.
- If you don't care or are too lazy to vote, then you've chosen to let others decide for you. You're not an automatic no-vote, you're just a waste of oxygen.

This whole "inter-state" commerce aspect of the RLA has given management such an advantage over labor that any move to leveling the playing field is a good thing.

05.12.2010 | Unregistered CommenterMat

Here's a snap right back. You pointed out that his move was purely political. You are probably right but the NMB under the Bush administration was purely politcal too and I don't remember the wailing and gnashing of teeth from the ATA during those years. That was my point.

Unfortunately the NMB can't seem to move beyond politics and just do their job which is facilitating the successful completion of contract negotiatons..

05.12.2010 | Unregistered CommenterMike

Yeah, Chris W. I really want something akin to your obsessive and incoherent hatred of Richard Anderson to drive labor/management relations here at Delta in the future. Go look in a mirror; you are the very ugly face of unionism c. 2010.

05.12.2010 | Unregistered CommenterRNB

Writer Mat is correct. This rule empowers ALL employees to take some responsibility for the direction they wish to go, instead of heavily weighing or stacking any decision in managements favor. Non-union employees have NO protection what-so-ever (especially with an aquisition), but under the Mccaskill-Bond Amendment, a CBA would provide a starting point (fair and equitable) integration. Admittedly, nothing is guaranteed under a CBA, but your guaranteed nothing without one.

05.12.2010 | Unregistered CommenterDave

Dave - are you drunk? Or just very misunderinformed (apologies to W fans for that one). Non-union employees enjoy the same rights and protection that anyone else enjoys! I worked for Delta for my entire adult life before retiring and never had a sniff of trouble. Why? Because I DID MY JOB!!!

Federal and state governments have labor laws in place to protect laborers so there is no need for unions...except to give the weak minded some sort of false security.

As far as the employees having responsibility in these decisions - well, that's why I chose to work for Delta in the first place - so I didn't have to work in some pseudo-socialist environment where most people worked harder to avoid work than to do any. That was my responsibility to myself - I chose my employer wisely! Nothing got to me more than watching the guys at AA across the ramp refuse to pick up a bag and put it on a plane (because it had fallen off a cart) because "it's not my job." Yeah, somebody is not getting their luggage tonight because of a insipid union rule...that's a great way to stay in business (or ruin a business if you are taking the union side of this argument)

The bottom line is - when you take a job, you take it to work for the company...not a union! The company is the reason for the job and things SHOULD be slanted towards them with the gov't providing oversight to ensure there aren't any illegal employment practices going on (children working, overtime laws, discrimination, etc)...the unions have no place in our world today.

@Mat - this does not bring things into line with life...did you even read the original article? In life, there are term limits - this ruling makes it near impossible to get rid of a union (in life, a politician either runs again or retires from office). Also, in real life, there are requirements that you still must win 40% of the total population vote in order to win an election (see the example provided in the article regarding South Carolina).

The argument FOR this ruling (or a union, for that matter) can only be validated when it's supporters pick and choose information to make their case. When presented with ALL the facts, the arguments fall apart like a blooming onion at Outback. Of course, this is typical of union tactics - smoke, mirrors and deception are their game.

Still pathetic...all of it.

05.12.2010 | Unregistered CommenterNoel C

Pretty surprised at the spewing of union rhetoric I see above. Fact is, no one wants a union. Unfortunately, the union big-wigs aren't willing to seek gainful employment where they are actually held accountable for their failures. As a result, they still need to suck off the nipple of other people's paychecks and pretend to 'act on their behalf.' Those of you that feel you are owed something by your employer, current or past, are seriously misled. A job is a job. Accept it. Step out of the way with your circus-act grieviences other people have work to do. It is all a big show to make it look like the union is returning something for the money being sucked from their checks. As any union member can see, Delta employees have a very comparable pay and benefit package to the former NWA employees. The only difference is, the former NWA employees have to struggle with dead-weight employees that should be fired for poor performance. The union does everything possible to save these folks. Why? Because they are their strongest supporters! Consistently. You see it now during the push for a vote. These dead-weight jerk-offs spend more time playing union mouth instead of doing their freakin job.

As for the recent NMB vote. Another socialist move by an Obama plant that was appointed to do his work. If unions can't get in fairly, change the rules that have been in place for decades.

There is a real good reason why only a small 2% to 3% of the private sector employees in this country are union... because UNIONS SUCK! It also explains why everyone hates dealing with government employees.... because no one is held accountable. The unions keep these people in place to do nothing for the taxpayer. Why? because UNIONS SUCK!

05.12.2010 | Unregistered CommenterDMFW

This ruling doesn't increase airline revenues. I think we can all agree on that. So the unions can huff and puff, but unless there's a concomittant increase in revenue (which the unions have no direct interest in creating), any increase in cost is going to mean fewer employees. I think we can still agree on that--higher costs, no increase in revenue = fewer employees. And that goes for any group, if you're not a heavily invested part of a growing, profitable business, you'll soon find yourself divorced from that business. Either it will shut down or it will find new ways of doing things without you. Until unions realize that, they will continue to shrink into irrelevance, though this ruling may give them a very short term boost.

05.12.2010 | Unregistered CommenterPeter

@Peter - I stopped using "concomittant" in my work reports and business cases a few years ago after the third time my GM returned my work because no one could understand it! Well, done - well written respose, I like it!

@DMFW - That's some passion with which you're writing...I like that also! "Circus act grievance" - I'll be using that one for a while to come.

05.12.2010 | Unregistered CommenterNoel C

One more step closer to the socialistic model. Mike is a nut case talking about Bush and the ATA. Maybe he could do some homework if he was employed back then but the last President to stand in front of a strike was Clinton. If unions want to cram their institution down the throats of groups that have said no over and over again they will ultimately pay for it as ALPA paid for it with US/AW. The majority will rise up and it will be a short lived victory.

The entitlement society is spawning new socialists instead of responsible employees. Management has done their share of wrongdoing over the years but these are a far cry from sweatshops. The NEA is a classic example. You can't even get rid of an irresponsible teacher and the next thing you know everyone will have tenure.

Pathetic and a ticking time bomb.

05.12.2010 | Unregistered CommenterGreybeard

Noel C, you ignorant slut (with apologizes to SNL). Do you live over a paint factory? How you managed to pull yourself from a Tea Party Rally, to pen such drivel, is a mystery at one with the Bermuda Triangle, Ancient Astronauts and the Search for Bridey Murphy.

I harbor little doubt that you looked upon Delta’s unionized pilots with unrelenting distain and envy, while you cleaned the toilets on their planes. It is painfully obvious, to an informed (and unbiased) reader that your argument is tired, dull, plodding and pedantic….much like yourself apparently. It’s with the same clarity of thought and foresight that brought us “Zapmail” that you cling to the same lame and unsubstantiated arguments that all unions are bad.
In my post, I referred only to the “McCaskill-Bond Amendment” and the protections offered to employees working under a CBA who are (or may be) entangled in an airline merger, nothing else – specifically, the merits (or lack of) of the NMB. It has been the law since deregulation in 1978 that employees can only obtain successorship protections and the ability to bargain over terms if they have a union contract (the federal courts have stated repeatedly that seniority exists only in collective bargaining agreements - RLA).
Note, I neither berated nor insulted anyone in my post nor did I call anyone “drunk”. Noel C, you’re an obtuse piece of flotsam; and there’s nothing wrong with you that a couple of Prozac and a croquet mallet couldn’t fix.

With that said, you may return to your LazyBoy and bag of chips to salivate over the (“fair and balanced”) Fox News.Channel. I look forward to your next painfully virtuous (and moronically didactic) post with the dreary inevitability of an unloved summer.

05.14.2010 | Unregistered CommenterDave

This is a wonderful opinion. The things mentioned are great and
needs to be appreciated by everyone.

05.19.2010 | Unregistered CommenterInsurance Answers

Dave, why all the anger? Really, you used some big words there and I'm sure you wore your dictionary out but, you really should have used your spell check because one of the itty-bitty words jumped right up and bit you on the wazoo - sorry chum but, "disdain" has no "t" in it.

After that, it was all noise for me - I can't take anyone serious who can't bother to correct his distain (sic) for his dictionary. (do you know what "sic" means? it means I know I spelled it incorrectly and am just quoting your mistake).

Good luck as you bury your nose of the ass in front of you and spend your life as a follower of all the other sorry cows in your organization. I'm sure you'll work your way up to just below mediocrity.

Me? Yes, I started my career cleaning airplanes on the midnight shift and worked my way up to Director. Since retirement I've consulted and am now overseeing the West Coast operations for a major contractor. Had I made the mistake of starting with an airline that was unionized I might be leading a team of cleaners in El Paso right now...not that there's anything wrong with that (I'm sure that's where you work in between your wonderfully insightful comments here and I don't want to insult your livelihood).

Good luck to ya buddy...enjoy that smell! (hint: it's the stinky smell of a union!)

In closing, your father was a hamster and your mother smells of elderberries! I fart in your general direction! Now go away or I shall taunt you for a second time!

05.19.2010 | Unregistered CommenterNoel C

The article written by you very good, I like it very much. I will keep your new article. buy Jacob & Co watches

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