Why Can’t The Washington Post Get Its Labor History Right?

In a story published in the Washington Post last Friday, three paragraphs about a side issue contain a remarkable number of errors that regrettably are all biased in one direction.

The story was about Congress’ failure to extend the budget authorization for the Federal Aviation Administration, and the layoffs that would result, especially in the DC area.  The story noted that a major reason for the delay was the existence of some contentious issues, including a battle over whether Federal Express should be subject to the same rules for union organizing as United Parcel Service, and, indeed, what those rules should be.  The story then explained that point as follows:

"After a series of crippling railroad strikes decades ago, Congress sought to curtail union organizing by stipulating in the Railway Labor Act that eligible voters who did not cast ballots in a union bid to organize should be counted as “no” votes.

"By contrast, the National Labor Relations Act says a bid for union organization should be governed by a simple majority vote of those who participate in a union election.

"With unions trying to organize FedEx, and UPS already unionized, the National Mediation Board overturned the Railway Labor Act provision that counted non-voters as “no” votes."

These paragraphs seem right out of the playbook of those who object to the NMB’s new rule on certification elections and hope to overturn it.   It is not correct that Congress “stipulate[ed]” in the Railway Labor Act (“RLA”) that voters who do not cast votes should be counting as voting no, and it is not correct that the National Mediation Board ("NMB") overturned the RLA provision that counted non-voters as no voters.”  It is not correct that the provision in the RLA on the manner of selecting representatives was added to curtail union organizing.  And the implication that the RLA generally, or its voting provisions in particular, were deliberately written in contradistinction to the National Labor Relations Act ("NLRA") and for the purpose of curtailing union organizing, is historically inaccurate in several ways.

First of all, the RLA was first enacted in the 1926, and was amended in 1934.  The NLRA (Wagner Act) was not passed until 1935, and it was not until 1936, in the RCA case, that the NLRB adopted the  interpretation of the NLRA's majority rule statutory provision that it still follows to this day.  It is true that the RLA was adopted in 1926, in part, as a reaction to widespread strikes.   But the provision regarding elections to choose bargaining representatives was added in 1934; the same amendments created the National Mediation Board.  It is not true that this provision in particular was added to deal with widespread strikes, or indeed to curtail organizing. There was no wave on railway strikes in the early thirties (as there had been in the early 1920's).   Moreover, the Democrats controlled both Congress and the presidency in 1934.

Second, like the majority rule provision of the RLA (29 U.S.C. § 152, Fourth), the text of the NLRA (29 U.S.C. § 159(a)) does not speak to the issue of majority of those eligible to vote versus majority of those voting.  The language of the provisions of the two statutes is quite similar.  In the RLA, Section 152, Fourth says, "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. “ In the NLRA, Section 159(a)  says, “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining.”

Third, administrative agencies do not “overturn [statutory] provision[s]”. They interpret them.  The Post’s statement that the agency overturned a provision enacted by Congress just reflects anti-union and right-wing political rhetoric.  Hopefully, the reporter just carelessly relied on a biased source.

Fourth, there has been controversy about the meaning of the majority rule provision of the RLA.  Does it mean that a majority of all eligible voters must pick the winner (that is, a President of the United States cannot be elected unless more than half of all eligible voters picks him; absent such a vote, the incumbent remains in office?).  This approach, which makes non-voting a way of voting against the status quo, in effect can deprive those who want to vote for change of the right to a secret ballot. After all, the very act of going to vote, which happens in public, becomes a statement of position.  That was a major reason why the NLRB decided as it did in the RCA case;  the employer and its chosen union were deliberately intimidating voters who supported the United Electrical workers union.

Or,  does the majority rule provision mean that a majority of the voters wins, so long as a majority of all eligible voters participate in the election, as the United States Court of Appeals for the Fourth Circuit held in the Virginia Railway System case in 1936 affirmed by the Supreme Court in 1937?  Or does it mean that a majority of those participating in the election must vote favorably, as in the states that require runoff elections when no candidate receives a majority? There has been wrangling over that issue for years.  (In most US elections a fourth option is followed – only a plurality of those voting is required).

The NMB changed course in 2010, and now the question is whether to overrule that decision by writing a statute that specifically requires a majority vote of those eligible to vote. Now, this is a legitimate policy debate, but saying that Congress made this choice in 1934 is simply wrong.  There is nothing in the text of the statute that decides that issue.

Obviously, the facts might have been a little too complicated to include in a story that was largely devoted to a different topic – impending furloughs at the FAA due to Congress’ failure to extend its funding.  But having addressed the controversy over the rule in light of the history, it is fair to insist that the Post get the history right and especially that it not bias its reporting on the rule by reciting phony history.  I have asked the reporter and the Post to correct the errors in the story.  Regrettably, they have not done so.

UPDATE
Bob Giolito points out that there is one provision in the NLRA that specifies the need for a majority of those eligible to vote:  29 U.S.C. § 158(a)(3)(ii) creates an exception to the rule allowing union security clauses where "following an election held as provided in section 159 (e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement."

Guides and airlines – some final thoughts on our trip to Norway

Before we went to Norway, it had no place on my list of new places to see; but I had the opportunity to travel to Europe for the Trans Atlantic Consumer Dialogue meetings, and Nancy and I decided to find a place to visit for roughly a week afterward.   We settled on Norway because it was nearby, we had never traveled in northern Europe together, and, well, there was a supercheap Ryanair flight to Oslo from Brussels.

In retrospect, we were very pleased with the choice.  Oslo was a nice visit, we could have spent an extra day there, and we would have spent a few more days exploring the beautiful fjords.  I strongly recommend Norway as a tourist destination.

We owe a special debt of gratitude to two people for their extensive travel advice.  Colleague Craig Holman, who kvells to us all about Norway (his country of ancestral origin) a couple of times each year, gave lots of advice about about Bergen and the Norway in a Nutshell route.  And after I mentioned in passing to Thomas Bartholdsen of the Norwegian Consumer Counsel that we were headed to Oslo after the TACD meeting that brought me to Brussels, he sat down with me to outline a very ambitious day of touring.  In the family I am notorious for trying to cram too many sights into every vacation day, but Thomas’s proposed day was more ambitious than even I could manage.  Still, in the 36 hours we were in town we got to see most of his proposed highlights, and every one of them was an excellent choice. 

Unni-Marie of the Balestrand Hotell also offered very extensive advice about how to make independent reservations for our trips around the fjords, even before I had committed to a reservation there.  In the end, I took the easy way out and booked the Sognefjord in a Nutshell route,  but even after I found the neighboring Midtnes Hotell on the Fjord Pass site, and noted that it was a somewhat less expensive alternative, I decided we ought to return the favor by following through with the Balestrand Hotell booking. 

Over the past couple of decades, I have come to rely on the Lonely Planet and Rough Guides for planning my foreign travel, supplemented by copies of the relevant pages from Frommers and Fodors for day-to-day choices, but for the Norway trip I was especially impressed by the Rick Steves’ book on Norway.  It had good walking and restaurant advice and was particularly helpful as I was thinking through how I should plan our two days traveling in the fjords.  Had we been able to spend even more time in the fjords we could have made even more use of it. When I misplaced the book in Bergen the night before we left for Balestrand, we knew right away how much we missed it.


When I couldn't get the especially recommended budget lodgings recommended in the Lonely Planet, I found the Fjord Pass web site and used the Fjord Pass to locate some better priced lodgings, as well as to book our fjord tour transportation choices.  It saved us some money and each of the lodgings we found on their site was fine.

Finally, our flights.  Ryanair was the same as I remember from our flights to and from Morocco – it books flights from less-convenient airports that are harder and more expensive to reach; the seats are remarkable uncomfortable; and they nickle-and-dime you even more than the worst US airline.  The only reason to book Ryanair is the price, and it is always important to figure how much extra time and money the further airports and nickle-and-diming will cost.  We also had one short leg on Norwegian Airlines, a domestic budget choice by comparison with SAS.  It was fine, with none of the disadvantages of Ryanair.

I was sad to see British Airways moving in the same direction as Ryanair, requiring an extra payment for any advance seat selection, not just the selection of preferred seats. The food on British Airways compared unfavorably with recent trans-Atlantic flights on KLM and Air France.  The in-flight entertainment selection, however, was marvelous – a selection of two dozen recently released movies plus hundreds of CD’s that could either be heard entire or formed into playlists like an iPod.   This was not much use on the flight to Europe where my goal was to sleep from the moment I hit my seat after 10 PM until just before our arrival at Heathrow (I succeeded).  But during the day flight home I was able to catch three movies that Nancy had been unwilling to see, plus listen to some good music than gave my iPod a rest.