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.
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."