Why Airline Unions Keep Claiming Management "Interference" With Elections

Last Updated Dec 23, 2010 7:04 PM EST

Another Delta (DAL) unionization attempt has ended in a management victory. As in previous elections, it was immediately followed by a lot of union finger-pointing. The special labor rules that govern airlines lack specificity and rely on subjectivity, and because of them, I'm not surprised that the unions act the way they do. I'd probably do the same thing.

The problem with airline labor elections stems from the fact that labor in the airline industry is treated like no other labor group in the US. OK, that's not entirely true. Railroads fall under the same category.

While nearly all labor in the U.S. falls under the National Labor Relations Act (NLRA), the airlines were long ago carved out and placed with the railroads under the Railway Labor Act (RLA). Why? To avoid disruption.

This special carve-out was meant to keep the rails running because of their importance to commerce. Airlines were grouped under the same act in the early days of the industry's existence for the same reason. So what did this act do? It created a bunch of roadblocks to prevent labor from going on strike.

Elections and negotiations all run through the National Mediation Board (NMB), an independent governmental agency that was created specifically to deal with the railroads and airlines. A mediator oversees elections and the board has final say on whether or not there were any improprieties. (The board also decides when airline labor groups are allowed to strike.)

With so many "interference" charges being filed by unions, I was curious what the process was for deciding if there in fact was interference. I was surprised to know how few hard rules there are in that process.

I spoke with James M Farrell, an attorney specializing in labor and employment law with Farrell & Thurman, PC to get a more experienced perspective on this.

Farrell explained that for most non-airline labor elections in the U.S., there are specific "unfair labor practices" that can be enough to require a new election. The complaints are filed with the National Labor Relations Board for review. If the parties don't like how that Board rules, they can go to the Court of Appeals to state their cases for the decision to be overturned.

Parties in the airline industry don't have that option. With them, there are no set "unfair labor practices" but rather a general prohibition against interference. Anyone can claim interference and then it goes to the NMB (aka, the mediators) for interpretation and ultimately, a decision. And once they make a decision, it's almost always final. There is no appealing a mediator decision unless it's on procedural grounds.

With this background, it's really no wonder that every election is contested. With no firm rules on what constitutes interference and what does not, it makes sense for unions to throw everything they've got into a complaint, hoping that one of the things they put out there catches the eyes of the mediators.

This is especially true if the union thinks the board might be sympathetic. With two former union members on the board of three, that's a distinct possibility.

If the interference claim is denied, what happens? Nothing. There's no penalty for bringing a frivolous claim as far as I can tell. Of course, if there were, I'm sure it would be easy for the unions to structure the complaint so it would avoid being called frivolous. It simply gives the union another shot.

If the union wins the appeal, well, that's the end since there is no appeal beyond the mediators. That is, unless the airlines can find a procedural reason to suggest that something was not properly conducted.

This type of structure encourages interference claims, and it certainly explains why the unions file them for just about every election. I would probably do the same thing if I were in their shoes.

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