Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

Today, the National Mediation Board rule changing how votes are counted in union elections for airline workers went into effect. Not wasting any time, three unions have already sought votes for employee groups at two different airlines: Delta and Atlantic Southeast Airlines (ASA). See the stories here and here.

The elections at Delta will be massive. The Association of Flight Attendants wants to organize all of the flight attendants in the combined Northwest/Delta operation. There are nearly 21,000 employees who could be eligible to vote in that election. The International Association of Machinists seeks to organize customer service agents and ramp workers, groups which number 16,500 and 14,000 respectively. The election at ASA is sought by the Teamsters and focuses on 570 mechanics and related employees.

These efforts are instructive for the labor relations professional in at least two respects:

• First, union organizing efforts can consume a substantial amount of time and resources. The ASA drive has lasted at least two years, and it isn't over yet.
• Second, issues such as respect, having a voice, and pay can sustain union organizing drives. These are issues that have surfaced both in the ASA campaign as well as the Machinists' campaign at Delta. 

In an earlier post, the different union election rules applicable to employers in the airline and railroad industry earned a brief mention. The rule used to be that the union needs to get a majority of those in the proposed bargaining unit to vote for union representation. It was not just a simple majority of those voting. The effect was that those who didn't show up to vote ended up counting as votes against the union.

The National Mediation Board, the federal agency that is responsible for administering labor laws applicable in the airline and railroad industry, has changed all that. Recently, the NMB announced that, effective July 1, 2010, the rule would change from a majority of those in the proposed unit to a majority of those voting. This rule change brings the NMB's rules in line with those applicable to other private sector industries subject to the National Labor Relations Act.

The rule change sparked a federal court lawsuit by an airline industry association and the U.S. Chamber of Commerce. Aviation Week provided coverage of the issue. Thus far, the outcome of that suit has not been positive. On June 25, the federal court refused to delay the effective date of the rule change.

Labor professionals working for employers subject to the NMB's jurisdiction should be aware of this change. Non-union employers will need to adjust their strategies related to a possible union organizing drive. The change clearly makes it easier for unions to win representation elections.

The National Mediation Board recently completed an election among baggage handlers and cargo agents at Continental Airlines. The Teamsters union was attempting to organize 7,603 workers. What happened? The Teamsters won. The final vote counted 4,102 workers in favor of Teamster representation. Click here for the ABC News story.

The election was conducted under a federal labor law applicable to airline and railroad employees. The rules under that statute are different for union elections than under the NLRA, which applies to most private sector employees. But, they are different in a way that, in one respect, favors employers. Specifically, the Teamsters had to get a majority of votes from those they want to organize, not just a majority of votes of those voting, as is the rule under the NLRA. Thus, those who don't vote are essentially votes against union representation.

So, in a secret ballot election process that favors employers, the Teamsters were nonetheless able to convince over 4,100 employees of Continental that union representation was appropriate for them. The outcome at Continental Airlines runs counter to many of the arguments unions advance in support of EFCA's attack on the secret ballot election process.