Obama Kneecaps Airlines

The Obama administration set Big Labor on the easy road to cannibalize the airline and rail industries and last week Senate Democrats stamped their imprimatur on the deal — at a time when taxpayers are getting full view of the cost of out of control unions bankrupting state and local governments and destroying public education.

The Senate used the Congressional Review Act (CRA) in an attempt to overrule Obama appointees at the National Mediation Board (NMB) which changed a 75-year rule that required a majority of employees in a rail or airline company to vote to unionize.

The motion to proceed to the resolution of disapproval regarding labor union regulations was shot down by a vote of 43-56 with all 41 Republicans standing firm against the latest Obama Big Labor giveaway.

“It’s an incredible outrage the way this whole scenario has played out.  The Senate Health, Education, Labor and Pensions Committee that confirmed the new people on the National Mediation board were utterly sandbagged, completely and dishonestly in my opinion,” Brett McMahon, spokesman for the Association of Builders and Contractors told HUMAN EVENTS.  “They were told nothing’s going to change, nothing has changed in 75 years since this board has been in place and any actual rulemaking has taken place.”

“Immediately upon assuming office, literally it was within days of assuming office, they went in and changed the rule,” McMahon said.  “What’s very, very important I think for people to understand is the difference between the rules that govern railways and the airlines and then everybody else that’s governed by the National Labor Relations Act (NRLA).”

The NRLA provides a mechanism whereby disgruntled current union members and other employees have a written and voting process where they can decertify the union as their collective bargaining representative and then de-authorize it if they so choose and actually eliminate the unions.

The Railway Labor Act (RLA) makes it practically impossible to decertify a union once the certification has taken place. 

“Once a union is designated there is a two-year period of time where the NMB will not entertain any other requests for representation.  It’s a two year bar of other unions or individuals trying to become the representative.  Beyond that even after the two years is up, the procedures for what we call decertifying union are available but very complicated and convoluted under the NMB process,” Roger Briton told HUMAN EVENTS.  Briton is a law partner with Jackson Lewis, LLP, with decades of experience in RLA matters.

“There is a fairly straightforward process at the NLRB in other industries and as part of this rulemaking change the U.S. Chamber of Commerce asked the NMB to adopt the basically straightforward NLRB decertification rules and the NMB refused to do so,” Briton said.  “While it is technically possible and has happened only a couple of times in the last 25 years, it is for all intents and purposes almost impossible to accomplish.”

The tradeoff for the difficulty in disbanding the unions once certified was the requirement that a majority of eligible voters must vote in favor of unionization.  Employees not voting were counted as a “no” vote.  And the RLA has a slower, more deliberative process.

“It was in the public interest for maintaining public transportation services,” Briton said.  “If a union and an airline are negotiating, under the RLA there are long, drawn-out procedures for those negotiations which are designed as a practical matter to prevent strikes in most situations.  Doesn’t always work but in a large number of disputes, they get resolved because the procedures of the Railway Labor Act are long and drawn out.  In the other statute the procedures are somewhat substantially more abbreviated so the possibility of a strike is more common.”

“The Railway Labor Act is considered to be a positive development for the airlines and railroads that are covered by it,” Briton added.

Now that check and balance has been removed by the Obama administration.

“It used to be that people who did not vote were counted as no votes. Under the new system if you don’t vote your vote doesn’t count one way or the other.  It makes it easier for the union to win an election if they count the votes of the people participating,” Briton said.  “It opens the door that if only a small number of people participate and the union wins the majority of people who choose to participate the union can be certified.”

The rule was challenged in court by a the Air Transport Association and Delta Airlines.  It again comes down to the courts.

“This rule change actually only went into effect in the last couple of weeks.  There has been litigation by the Air Transport Association to enjoin the rule change.  That lawsuit was dismissed,” Briton said.  “There is no legal challenge pending to the rule change.”

Now Delta is facing unionization under the more lax rules of over 20,000 flight attendants with no clear way to undo the damage if employees decide unionization was a disaster.  Voting commences September 29, 2010, just after midnight. Polls will close November 3, 2010 at 2:00 p.m., with the votes being counted shortly thereafter.

McMahon said he sees court challenges forthcoming from individual employees who are being forced to join unions with no clear exit strategy.

“I’m sure there’ll probably be employees who’ll bring suit afterwards.  It’s a 2-1 ruling from NMB that affects so many people and so many industries, and an impact that is just patently unfair and par for the course union stuff,” McMahon said.

The silver lining is that Congress knows there is a Congressional Review Act and they’ve shown they can use it. 

The CRA empowers Congress to review and overrule regulations issued by government agencies.  Like the Environmental Protection Agency (EPA) or the NMB.  Or Obamacare.  Both the House and Senate are required to pass a resolution of disapproval (not subject to filibuster) and the President must sign off on the measure.

President Obama could spend the next two years leading up to 2012 vetoing popular legislation that would dismantle his unpopular agenda.