The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition

The Leadership Conference on Civil and Human Rights  & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition

Railroaded out of Their Rights: How a Labor Law Loophole Prevents FedEx Express Employees from Being Represented by a Union

Union Organizing under The National Labor Relations Act and The Railway Labor Act: Different Rules

Why is it so important to FedEx Express to have its ground transportation employees covered by the RLA rather than the NLRA? The answer lies in the different approach taken by the two statutes with regard to union organizing – specifically, those provisions that regulate the right of employees to choose whether or not to be represented by a union.

To be sure, after decades of weakening amendments and lax enforcement, the road to unionization under the NLRA is by no means an easy one. This is why The Leadership Conference supports passage of the Employee Free Choice Act (“EFCA”), which would, among other things, grant union representation if a majority of the employees that a union seeks to represent present signed authorization cards indicating their desire for such representation, thereby preventing exposure to the employer’s anti-union campaign pending an election. Passage of EFCA, improved enforcement of existing law by the NLRB, and other types of labor law reform remain a top priority for labor and employee rights advocates. But even under a weakened NLRA, the ability of employees to organize is far greater than it is under the RLA.

Under the NLRA, when a union wants to organize a company, it must as a first step show a specified level of interest from the employees in a designated “bargaining unit” – a group of employees performing similar jobs or who share a “community of interest” with each other in regard to wages, benefits, and working conditions. The union can make such a showing by collecting signed authorization cards from at least 30 percent of the employees in the proposed bargaining unit. The NLRA allows this to be done on a location-by-location basis, which means the union can organize specific company facilities – the production workers at a particular plant of a nationwide manufacturing company, or the clerical employees at a particular office of a nationwide insurance company – rather than on a company-wide basis.17

This is not the case under the RLA. The RLA requires the NMB to determine which union, if any, represents a “craft or class” of employees,18 a requirement that the NMB has construed to mean that a bargaining unit must include all the employees of a particular craft or class throughout an entire company.19 Thus, if the FedEx Express ground transportation employees at a company facility in one state want to organize, they would have to do so for a bargaining unit that includes the FedEx Express ground transportation employees at all of the company’s facilities in every state.

There was until recently another distinction between the NLRA and the RLA that placed employees seeking to unionize under the RLA at a further disadvantage. In a representation election under the NLRA, a union wins if it receives a majority of the actual votes – specifically, of the valid ballots cast.20 In an RLA representation election, a union historically has been required to receive a majority of the votes from all employees in the bargaining unit who are eligible to vote, including both those who voted as well as those who chose not to vote. Phrased otherwise, in an RLA representation election, the failure of a bargaining unit employee to vote – for whatever reason – was counted as a vote against union representation. This no longer is the case. The NMB has amended the RLA election rules, and – as of June 10, 2010 – the NLRA standard of a majority of the valid ballots cast will be used in RLA representation elections.21

On May 17, 2010, the Air Transport Association of America, Inc. (“ATA”), which is the trade association that represents most major airlines in the United States, filed a lawsuit against the NMB in federal district court seeking to prevent implementation of the new rule,22 so there is at least some uncertainty as to the rule change.23 But even if the rule change is treated as a fait accompli, it removes only one of the reasons why it historically has been more difficult to unionize under the RLA than under the NLRA, and by no means levels the playing field between the two statutes. Because of the local bargaining unit/nationwide bargaining unit distinction, the FedEx Express’ ground transportation employees still are required to clear a significantly higher hurdle than their counterparts who work for other package-delivery companies in order to have a union represent them in bargaining for better wages, benefits, and working conditions. Moreover, to the extent that ongoing efforts to enact EFCA and otherwise strengthen employee organizing rights under the NLRA are successful, this unfairness will be even greater.

The recent action by the NMB serves to highlight a more basic point. The very fact that the NLRA and the RLA are separate statutes that can be interpreted and/or amended independently of each other means that there will be the potential for unfair treatment as long as employees who have the same jobs at different package-delivery companies are covered by different labor relations statutes.

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