Monday, January 30, 2012

Counting All Votes

A federal appeals court recently approved a significant change of a federal labor law that governed the formation of unions in the airline industry for the past 75 years.

The Railway Labor Act -- yes, the railway act actually applies to airlines, too -- provides that "[t]he 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 last several decades, unionization was determined, in part, on the basis of employees who did not vote.  That is, the National Mediation Board counted non-voters as voting against union representation and the only way employees could vote against union representation was by not voting at all.

Under a new rule established in 2010 -- and affirmed by the decision of Air Transport Ass'nof America v. National Mediation Board, 663 F.3d 476 (D.C. Cir. 2011), elections will now be decided by a majority of votes case, and those not voting will be understood as acquiescing to the outcome of the election.  In doing so, the Court rejected the argument that this rule change was "arbitrary and capricious" and would disrupt commerce and increase delays.

This may not be the last word on the issue.  Conceivably, the pro-union decision could be appealed to the Supreme Court of the United States.

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