A rule change made by the Obama administration last May aimed at making it easier to unionize has put Delta Airlines squarely in union sights.
The new rule approved by the National Mediation Board — the body responsible for ruling on labor issues in the transportation industry — makes it easier to organize by allowing a simple majority of those voting in a union election to decide its outcome. The board approved the new rule following a Sept. 2009 letter from the AFL-CIO’s Transportation Trades Department asking the board to make it easier for transportation unions to win elections.
The old rule that had been in place prior to the change, dating back to the 1930s, required a union to win the backing of a majority of an entire class of workers, such as flight attendants. The Supreme Court upheld the former rule as constitutional twice.
Under the old rule, 10,001 of Delta’s approximately 20,000 flight attendants would have needed to vote for union representation for an election to be successful. Those who chose not to vote in the union election were counted as “no” votes under the old rule.
The Association of Flight Attendants, the union representing approximately 50,000 flight attendants at 20 airlines, has held three unsuccessful union elections for Delta’s flight attendants in the past eight years, including in 2002, 2008 and this past November.
“The purpose of this rule change was similar to the purpose of card check – to make it easier for unions to gain representation rights in view of their repeated rejections by employees under the traditional rules,” Delta’s Senior Vice President for Government Affairs, Andrea Fischer Newman, wrote in an e-mail to The Daily Caller.
The AFL-CIO justified its petition for the new rule by contending tabulating those who opted not to vote as “no” votes was undemocratic.
“No where in American Democracy ̶ other than during a union election in the airline and railroad industry ̶ does an eligible voter wishing to sit out an election have his or her vote tabulated as a NO vote by virtue of non-participation,” the AFL-CIO wrote in its Sept. 2009 letter to the board. “Permitting such a veto-by-silence or inaction obviously sabotages the expressed will of the voting majority and creates a perverse incentive for vote-suppression efforts by employers.”
Delta’s management has taken particular issue with how the new rule was adopted, pointing out that National Mediation Board Chairman Harry Hoglander and board member Linda Puchala are both former transportation union executives. The company also contends that Elizabeth Dougherty, the lone dissenting vote on the board, was squeezed out of the process.
Delta remains the largest airline to have resisted unionization and says the new rule’s passage has subjected it to the largest forced unionization effort since Ford was unionized in the 1930s.
The Association of Flight Attendants ̶ the union seeking to represent Delta’s flight attendants ̶ lost union elections in 2002 and 2008 because a majority of Delta’s flight attendants chose not to participate.
The unsuccessful 2008 election followed the merger of Northwest Airlines’ largely unionized workforce with Delta’s largely nonunion workforce. The failure of the union election resulted in the Northwest flight attendants losing their union representation, which cost the AFA a significant amount of dues.
The union filed for a third election last July after the new rule was in place. According to the Dallas Morning News, 3,772 Delta employees voted for union representation, including 3,638 employees who voted in a related union election held by the International Association of Machinists, while 8,746 employees voted against union representation.
AFA may have lost the November vote, but it refuses to back down and has taken Delta to court claiming management interfered with the election by giving its employees information it considers false and misleading.
It claims Delta management worked to coerce its workers to vote in the election by mandating compulsory voting, which the union says runs contrary to official National Mediation Board voting instructions. Other accusations suggest that the airline interfered with the National Mediation Board’s write-in ballot procedure, it misrepresented union decertification procedures and it misrepresented unionization’s impact on employee benefits.
The union has asked the federal courts to order the airline to hold another election.
“The Air Transport Association has appealed the District Court’s ruling rejecting the ATA’s lawsuit challenging the rule. Delta supports the ATA’s appeal,” Newman said. “The judge in that case also indicated that this is a matter that is appropriate for congressional review, and we agree there should be congressional involvement.”