Arcane Labor Law Counts the Votes of Non-Voters

by Tula Connell, Nov 6, 2009

Imagine voting on a ballot initiative and knowing that everyone who didn’t show up at the polls still got to vote—because their votes would be counted as “No.”

That’s the process for airline and railway workers when they vote on whether to join a union. The election results are tallied not by how manypeople voted—but by the entire pool of workers in the bargaining unit, with all non-voters automatically “casting” a “No” vote.

Given the undemocratic process, it’s no surprise these workers have an even harder time than usual getting a union voice on the job.

Unlike most of the nation’s workforce, airline and railroad employees are governed by the Railway Labor Act (RLA), which was passed more than a decade before the Depression-era National Labor Relations Act that created the bulk of our nation’s labor laws.

The AFL-CIO Transportation Trades Department (TTD) and its 32 unions in September requested the National Mediation Board (NMB), which governs the RLA, to allow airline and railroad workers to vote either “Yes” or “No” for union representation and to determine the outcome by a majority of the votes cast. Majority voting. What a concept.

And this week in a 2–1 majority, the NMB proposed new rules. But it’s not a done deal. The NMB has said it will decide whether to adopt the proposed rule after the 60-day public comment period, but its adversaries started campaigning against this weeks ago.

The U.S. Chamber of Commerce is one of the biggest opponents of the rule change. The same outfit that is spending $100 million to push “free enterprise” as a publicity stunt while in reality attacking financial regulatory reforms that would aid the free enterprise system, doesn’t cotton much to new-fangled ideas like democracy. Good thing that group wasn’t around in 1776.

Meanwhile, the Bush-appointed Republican member of the NMB is having fits over the decision. In a letter to Senate Minority Leader Mitch McConnell (R-Ken.) and eight Republican lawmakers who had written the NMB opposing the rule change, Elizabeth Dougherty whined that she had been left out of the decision-making, according to the Daily Labor Report (subscription required).

Dougherty would know something about leaving people out. This from Ed Wytkind, TTD president:

Unionization in the airline industry has slowed in recent years. Why? Union-busting campaigns are alive and well—because the current election policy encourages and rewards employer-run voter suppression campaigns. For example, almost 100 percent of Delta flight attendants voted in favor of unionization in 2008.

But thanks to Delta’s campaign to discourage its employees from voting (the company called it “Give a Rip” and was essentially instructing employees to destroy government-issued ballots), turnout was below 50 percent and the overwhelming support for a union was nullified. Shockingly, the Bush NMB saw no evil in Delta’s unlawful conduct and voted 2–1 to refuse to even investigate more than 100 charges of illegal interference and coercion.

Dougherty was one of the two NMB Republican members leaving the Delta workers out in the cold.

Another opponent of the majority voting process, Sen. Johnny Isakson (R-Ga.), joined McConnell and his cronies, saying if the proposal is adopted, he will “use all available tools at my disposal,” including options available to lawmakers under the Congressional Review Act, “to see that this assault on employee rights does not stand.”

How is it an assault on employee rights to insist on a more democratic voting process, Johnny?

And as the Wonkroom points out today, opponents of the Employee Free Choice Act have portrayed themselves as defenders of democracy, protecting the “secret ballot” for workers everywhere. But when it comes to bringing democracy to union elections covered by the NMB, these supposed lovers of fair elections show their true colors and oppose the rule changes.

Flight attendants and most other workers at pre-merger Delta, based in Atlanta, are nonunion, while most of Northwest’s frontline employees are represented by unions. Says Flight Attendants-CWA President Patricia Friend:

Now that the NMB has announced that, for the first time in recent years, airline employees seeking union representation will have a chance for truly fair elections, flight attendants at Northwest and Delta are excited for that opportunity.

The airline CEOs and their friends seem to be the only ones trying to defend the current system. But sitting members of Congress would never choose the NMB election standards for themselves. As Wytkind states:

Even when more than 90 percent of those who vote choose a union, they are routinely denied representation by those who didn’t vote….Other than airline CEOs and their lobbyists, no one else can defend this system. I wonder if some of the U.S. senators who are carrying the airline industry’s water would support an amendment to the U.S. Constitution or to the election law in their state that forces them to face the voters under such onerous rules? I doubt it because in most of their elections, they would have lost.

(Comments may be submitted by mail or hand delivery to the National Mediation Board, 1301 K St., N.W., Suite 250E, Washington, D.C. 20005; by fax to 202-692-5085; by e-mail to legal@nmb.gov; or through the Federal eRulemaking Portal at www.regulations.gov.)

This is a cross-post from the Firedoglake blog.

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