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How hard should it be to form a union?

March 30, 2011 |  5:54 pm

UnionA new front in the battle over union power opens this week in the House of Representatives, when lawmakers debate the ability of labor unions to organize railway and airline workers. And though some recent GOP efforts to rein in labor have seemed like partisan politics masquerading as government reform (e.g., the bids to eviscerate public employees' collective bargaining rights), on this one I think the Republicans are right. But as usual, it's not as clear-cut an issue as advocates on either side would have you believe.

The dispute centers on the National Mediation Board's decision to reinterpret a provision of the 1926 Railway Labor Act regarding the right of employees at railroads and air carriers to unionize. The law states, "The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter." The federal government had long interpreted "majority" in this instance to mean a majority of the workers who were eligible to vote on whether to form a union. But in mid-2010, two Democratic appointees on the board pushed through a new interpretation, over the objections of the board's Republican chairman. From that point on, "majority" meant just the majority of those casting ballots.

The change made it easier for workers to form unions by effectively reducing the number of votes needed to win an election. Under the previous rule, every eligible voter who didn't cast a ballot was effectively counted as a "no" vote. The new interpretation confines the "no" votes to those who actually cast a ballot against the union.

This outraged some airlines ...

... which have a much lower union representation than railroads. Their GOP allies in the House tucked a provision reversing the new interpretation into a bill (HR 658) reauthorizing the Federal Aviation Administration. That prompted some of labor's allies to complain that Republicans were "union busting." The Obama administration threatened Wednesday to veto the FAA bill if the provision wasn’t removed.

The best argument in favor of the change in interpretation is that it aligned the rights of railroad and airline workers with those in other industries. The National Labor Relations Act provides that collective-bargaining representatives (read: unions) are selected by "the majority of the employees in a unit." Although that wording is similar to the Railway Labor Act, the National Labor Relations Board has long interpreted "majority" to mean a majority of those casting ballots.

Labor leaders also note that a similar standard applies to elections for public office. Registered voters who don't bother to cast ballots don't influence the outcome. In the vast majority of cases, winners are picked by a minority of those eligible to vote.

Opponents of the mediation board's new interpretation complain about the partisan fashion in which it was adopted, but President Obama's appointees are hardly the first to upend existing rules. Opponents also say that it enables a minority of workers to compel the majority to pay union dues. But there's ample precedent for that in general elections -- ballot measures to raise taxes are routinely decided by a minority of those who'd be required to pay them.

Nevertheless, the plain language of the Railway Labor Act gives a majority of the workers in a bargaining unit the right to determine if someone will represent them. It should therefore take an affirmative act by a majority of workers to bring in a union. In that context, it makes sense to count workers who don't cast a ballot to be voting against unionization.

Also, the framework created by the NLRA differs in several important ways from the one created by the railway labor law. For example, the NLRA calls for run-off elections when "none of the choices on the ballot receives a majority," implying that lawmakers considered "majority" to mean "majority of votes cast." There's no such provision in the railway law.

Again, this strikes me as a close case (no pun intended). If you have a different view, leave a comment below!

-- Jon Healey

Credit: AP Photo / Tom Uhlman, File



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