The Leadership Conference is working diligently to see that Tom Perez is confirmed as U.S. Secretary of Labor. Perez is an eminently qualified public servant and consensus builder who has dedicated his career to ensuring that all individuals are treated fairly and have the opportunity to succeed. He has served with integrity and distinction at the local, state and national level, compiling an outstanding record of achievement.
In this report:
- Executive Summary
- Introduction: The FedEx Express Labor Law Loophole
- The Statutory Framework: The National Labor Relations Act and The Railway Labor Act
- Union Organizing under The National Labor Relations Act and The Railway Labor Act: Different Rules
- Why FedEx Express Is Covered by the Railway Labor Act: An "Historical Anomaly"
- Efforts to Bring FedEx Express’ Ground Transportation Employees Under The National Labor Relations Act: The FedEx Corporation’s No-Holds-Barred Campaign in Opposition
- The FedEx Corporation’s History of Opposing Unionization
- Conclusion and Recommendation
The Statutory Framework: The National Labor Relations Act and The Railway Labor Act
Two federal labor laws are at issue in the dispute involving FedEx Express: the NLRA and the RLA. These two laws are designed to serve very different purposes.
Passed in 1926, the RLA originally covered the nation’s railroads and “express companies.”8 Coverage for express companies was included in the RLA because Congress recognized the important role that the Railway Express Agency (“REA”) – which was the only express company in existence at that time – played in the nation’s transportation system.9 The REA ceased operations in 1970.
The primary purpose of the RLA was not to facilitate union organizing – indeed, many railroad workers already were represented by craft unions that had existed since the late 19th century. Its purpose was rather to avoid strikes in the nation’s crucial cross-country transportation system, by encouraging collective bargaining, mediation, and arbitration as means for resolving labor-management disputes. As stated in the 1926 Congressional debate leading to enactment of the RLA:
[T]he railroads are the arteries through which flow the lifeblood of our nation. It is vital to the country that the operation of its railroads be uninterrupted.10
A new federal agency – the National Mediation Board (“NMB”) – was established by Congress to administer the RLA.
In 1936, the RLA was amended to apply to the airline industry.11 Recognizing the vital role that burgeoning industry was destined to play in our nation’s commerce, Congress’ purpose once again was to avoid strikes.
In contrast, the NLRA – which became law in 1935 – was intended to facilitate organizing in basic industries, such as automobiles, steel, electronics, clothing, and textiles. Hailed as “Labor’s Magna Carta,” the NLRA led to the growth of the great industrial unions, and promoted the process of collective bargaining as the primary mechanism of industrial governance in the private sector.12 As was the case with the RLA, a new federal agency – the National Labor Relations Board (“NLRB”) – was established and charged with responsibility for administering the statute.
In order to put the dispute over the statutory coverage of FedEx Express’ ground transportation employees in context, it is important to understand the interplay between the RLA and the NLRA with regard to coverage of the airline industry. The RLA provides that the Act
shall cover every common carrier by air engaged in interstate and foreign commerce….. and every air pilot or other person who performs any work as an employee or subordinate official of such carrier or carriers, subject to its or their continuing authority to supervise and direct the manner of rendition of his service.13
In accordance with this provision, anyone employed by an air carrier engaged in interstate or foreign commerce – regardless of the specific nature of the work that he or she does for the carrier – is covered by the RLA.
In order to mesh RLA and NLRA coverage, the NLRA specifically excludes from coverage any employer that is “subject to the Railway Labor Act.”14 And, the NLRA’s definition of “employee” excludes “any individual employed by an employer subject to the Railway Labor
Act.”15 In sum, all employees of a company that is covered by the RLA – including those who have no direct involvement in the company’s airline operations – are expressly excluded from the coverage of the NLRA.
The NLRB traditionally has taken the position that questions concerning RLA coverage should be resolved by the NMB. As explained by the NLRB General Counsel, where issues concerning RLA coverage arise in an NLRA representation proceeding, the NLRB will defer to the NMB:
[B]ecause of the nature of this type of jurisdictional question, it has been the Board’s practice to request the National Mediation Board, which has primary authority to determine its own jurisdiction, to study the record in these cases and determine the applicability of the Railway Labor Act to the employer in question. Where the National Mediation Board finds that the employer meets the definition of common carrier under the Act administered by it, the NLRB declines to assert jurisdiction.16