Rep. Phil Gingrey Challenges National Mediation Board's Anti-Democratic Rule Changes

Just keep voting until you get the desired results and we will change the rules along the way to help advance policy changes that could not pass through Congress.


This is the message the National Mediation Board (NMB) has transmitted on behalf of Team Obama to union bosses who lost ground in the private sector. Only 11.9 percent of all wage and salary workers, public and private, are union members, and the percentage of union members in the private sector is a mere 6.9 percent. Unions lost over 612,000 members in 2010, most of them in private sector unions.

Although they helped to elect a Democratic president and Democratic Congress in 2008, organized labor failed to secure its top legislative priorities. This would include replacing the secret ballot in unionization elections with a card check system and binding arbitration that would allow federal mediators to impose guidelines on business. The strategy now is to reshape public policy through unelected agencies that typically elude media scrutiny.

In 2009, the NMB radically reworked a long-standing workplace rule at the behest of the AFL-CIO that governed the way airline and railroad workers unionized. Prior to making the change, a majority of a company’s workforce was necessary to vote in favor of representation. But now that the rule has been modified only a majority of votes received as opposed to the majority of entire workforce is sufficient to force unionization on an entire company. This reverses 75 years of labor policy upheld under both Democratic and Republican administrations. Moreover, there is no realistic or attainable option for decertification meaning employees are permanently stuck with a union even if they no longer want it.

Recently, the NMB altered its policy so that a blank vote or silent vote, or a vote declaring “any other organization or individual” would no longer count as a vote for representation just as the U.S. House Committee on Transportation & Infrastructure was voting out the FAA Reauthorization bill.

Previously, any vote that was blank or silent, or a vote stating “any other organization or individual” would automatically count as a vote for unionization. The NMB’s amendment to its policy is nothing short of an admission of fault in how it has approached these elections. While Congress addresses the NMB’s actions in favor of unionization in the airline and railroad industries, the agency has reluctantly been forced to address one minor aspect of its own rules, which even pro-labor loyalists apparently didn’t have interest in defending

In February, House Republicans moved decisively to reverse the NMB’s unionization schemes and to restore the requirement for a majority vote in airline and railway elections as part of the FAA Reauthorization and Reform Act of 2011. The bill expected to come up for a vote this month. Rep. Phil Gingrey (R-Ga.) has introduced his own legislation H.R. 548, or the Restoring Democracy in the Workplace Act, that would guard against coercive union tactics and roll back intrusive federal policies.

“My bill – H.R. 548, the Restoring Democracy in the Workplace Act – is necessary to protect private industry from government overreach,” he said. “It ensures that the majority of employees in the air and railway industry have a voice, not just an unelected three-person panel of federal bureaucrats as required by the National Mediation Board rule. This bill is essential to helping our economy regain its momentum by cutting out burdensome regulation and promoting free enterprise.”

When policymakers enacted the Railway Labor Act of 1926 and later authorized the NMB in 1934, it was understood that key infrastructures needed special protection from labor strife, Barbara Comstock, a former counsel for the House Committee on Oversight and Government Reform who is now working on the issue on behalf of a major airline, explained in an interview. There is no escaping the severe economic fallout that could occur if strikes and competing unions beset the railway and airline industries, she noted.

“The NMB was set up to oversee union elections not to dictate or change 75 years of precedent,” Comstock said. “But instead the NMB has moved itself into the congressional legislative role. It has also failed to recognize the reason we have this 75-year rule and the importance of maintaining stability in the airline and railway industries. This was done to tilt the playing field and to influence upcoming elections.”

Right from the beginning, the target here has been Delta Airlines, which has repeatedly voted down organization attempts since 2002. After the company merged with Northwest in 2008, union operatives saw another opportunity for an election. But this time around it would be with rules skewed in their direction.

The three-member NMB board includes two Obama appointees who are former union executives; Harry Hoglander of the Air Line Pilots and Linda Puchala of the Flight Attendants. The single minority member of the board, Elizabeth Dougherty, a George W. Bush appointee, was excluded from any discussions of the rule change.

The overriding objective here was to create an opening in favor of two unions: the Association of Flight Attendants (AFA) and the International Association of Machinists and Aerospace Workers (IAM). If labor leaders could organize Delta’s 56,000 employees, it would help to reverse their diminished standing in the private sector.

Remarkably, despite the NMB rule change, Delta prevailed again last fall when employees rejected union drives by sizable margins. This means 17,000 former Northwest employees will become non-unionized once the election results have been certified.

But, true to form, labor officials have decided against accepting the election results. The AFA claims Delta interfered with the elections and has filed official complaints. In response, Delta officials point out they needed to inform their employees the rules had changed. Otherwise, they would assume that abstaining from a vote would count as a no. The IAM has joined with AFA in the complaint.

Most unfortunately, for the large majority of Delta employees who voted no on representation, NMB will decide whether or not the company actually interfered, which means new elections could be ordered.

But free market forces are fighting back. A grassroots group called “No Way AFA” has taken root and is meeting with elected officials on Capitol Hill. Activists have also picketed in front of AFA headquarters and have called the union out of using highly questionable tactics as part of its campaign against Delta. They have friend in Rep. Gingrey and other House Republicans who do not take kindly to the anti-democratic maneuvers of an unelected three member board that does the bidding of narrow interests.

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