Trapped in a union: Trump administration works to change the rules for rail and airline workers, by Russ Brown

Trapped in a union: Trump administration works to change the rules for rail and airline workers

by Russ Brown 

 | Washington Examiner, March 07, 2019

President Trump’s appointed National Mediation Board is taking aim at practices that have until now been permitted under the Railway Labor Act. 

The NMB has proposed a welcome rule change to the process that railroad and airline employees must go through should the employees want to decertify their Labor Union. The proposed rule change show’s that the Trump Administration is committed to bringing “Freedom of Association” to the American worker. 

Decertification of an unwanted union is nearly impossible for employees to achieve under the RLA under any circumstances. But the existing “Straw Man” procedure goes even further, making the process confusing and intimidating. 

The Railway Labor Act of 1926 was created to give railroad employees the right to engage in collective bargaining while simultaneously ensuring that America’s commerce would not be disrupted by work stoppages. Airlines were also added to the RLA in 1935. The RLA is not to be confused with the National Labor Relations Act, or NLRA, the law that oversees most other industries. 

Both Acts are intended to give employees rights to join or refrain from joining a labor union. There are similarities between them, but there are differences as well. For example; Right-to-Work does not exist under the RLA, so employees of railroads and airlines that are unionized are obligated to pay union dues or agency fees, even if they reside and work in right-to-work states. 

Another trap under the RLA is that the decertification process is much harder. Under the RLA, the employees of a given class — pilots, perhaps, or baggage handlers — cannot just petition for a decertification election, the way most workers can under the NLRA. Instead, an RLA employee must actually run against his union on the ballot just to force an election. He becomes a “Straw Man,” running to represent his fellow workers. The Straw Man must then get more than 50 percent of his or her fellow employees to sign the petition. Once the Straw Man achieves the 50 percent mark, he or she has the right to apply for an election with the NMB. 

But here’s the catch: Should the NMB grant the Straw Man’s application for an election, the Straw Man doesn’t actually try to win. He must instead get fellow employees to ignore his name on the ballot and choose the “No Representation” option instead. 

NMB Chairwoman Kyle Fortson and Member Gerald Fauth have recognized that this process is unacceptable. It is confusing and lends itself to misinterpretation and distrust. The Straw Man process also makes a target out of whichever frontline employee agrees to become the Straw Man. Instead of forcing the union to stand on its own record and justifying its position, it can instead redirect its hostilities toward the Straw Man and the company. 

Unionization in America is down to an all-time low of 6.4 percent in the private sector, including both NLRA and RLA jurisdiction. If we look at unionization of Railroads and Airlines alone, they are way above all other industries in unionization percentage, with railroads at 82 percent and airlines around 70 percent. This is largely because the RLA traps workers in unions they would not choose to join if given the opportunity. 

Another part of this rule change has to do with how often an election can take place. The current rule states that if unions win the election, they are protected from facing another election for two years. But if the union is decertified, then it can try again in just one year. The proposed rule will change will make the waiting period consistent with both scenarios. 

Few people in America understand how labor laws in our country work. The NMB’s proposed rule change will finally this one part of the process clean and understandable for the employees of America’s railroads and airlines. 

Russ Brown is the President of the Center for Independent Employees, a legal defense foundation that helps employees who wish to decertify their union.

Enforceability of Class Action Waivers in the Transportation Industry


Harold P. (Hal) Coxson, Shareholder, Ogletree Deakins (Washington D.C.)

Motor carriers are advised to temper their enthusiasm regarding the Supreme Court’s recent class action waiver decision in Epic Systems, Inc. v. Lewis. The decision will have limited application in the trucking industry due to the Section 1 exemption in the Federal Arbitration Act (FAA) for contracts of employment with transportation workers. Section 1 of the FAA exempts “contracts of employment for seamen, railroad workers, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. 1. Thus, pursuant to the FAA’s Section 1, if motor carriers and their driver employees decide to enter into an agreement to arbitrate employment disputes in their contracts of employment and waive class and collective action lawsuits, they should not expect those agreements to be enforced under the FAA. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001) in which the U.S. Supreme Court’s decision provided that “Section 1 exempts from the FAA only contracts of employment of transportation workers.”
However, an important, related and hotly contested issue remains open for motor carriers as to whether the “transportation worker” exemption set forth in Section 1 of the FAA also includes agreements with independent contractor / owner-operator drivers. In many cases, a motor carrier’s arbitration agreement with independent contractors includes a class and collective action waiver, which may be an effective way to prevent massively expensive misclassification lawsuits from being litigated on a class action basis. The Circuit Courts are split on the issue. The First Circuit recently decided against the enforceability of an arbitration agreement with independent contractors by New Prime, Inc. (an interstate motor carrier which operates both  through driver employees as well as independent contractors). The basis of the First Circuit’s opinion was the FAA’s Section 1 exemption.
On February 26, 2018, the U.S. Supreme Court granted certiorari in the case to decide whether Section 1 of the FAA exemption for “transportation workers” also applies to independent contractor / “owner-operators.” The case is New Prime, Inc. v. Oliveira, No. 17-340.
The central issue in New Prime is “whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.” A related threshold issue is whether applicability of the arbitration agreement pursuant to a mutually agreed upon delegation to arbitration, must be decided only by arbitration.
The opening brief on the merits by Petitioner New Prime, Inc. was filed on May 14, 2018, and amicus curiae briefs in support of the Petitioner were filed one week later on May 21, by the American Trucking Associations, the U.S. Chamber of Commerce, the Customized Logistics and Delivery Association, the Cato Institute, and the New England Legal Foundation. The Respondent’s opening brief on the merits is due on July 11, 2018.
Petitioner and amici argue that independent contractor agreements are not “contracts of employment” within the meaning of Section 1 of the FAA, and that to prevent motor carriers and independent contractors access to arbitration would violate the strong federal policy favoring arbitration, as long upheld and reinforced by Supreme Court precedent.  See, e.g., Gilmer v.  Interstate / Johnson Lane Corp., 500 U. S. 20, 24 (1991); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1983)(“emphatic federal policy in favor of arbitrable dispute resolution.”) They argue that the Section 1 exemption must be given a “narrow construction” and “precise reading.” Circuit City Stores v. Adams, 532 U.S. 105, 118, 119 (2001). It applies to employer-employee relationships, not independent contractor agreements. Further, they argue, as a threshold matter, where the parties have entered into an arbitration agreement in which they delegate disputes to arbitration, such as the arbitrability of the agreement itself, such issues must only be determined by arbitration.
The Court’s future decision hopefully will resolve the FAA’s protection for arbitration of independent contractor agreements which have become fairly prevalent in the trucking industry. In effect, for motor carriers the Court’s decision in New Prime, Inc. could be the equivalent of the Court’s decision for other industries in Epic Systems, Inc. – an enforceable right to enter into mandatory arbitration agreements with class action waivers. That would truly be cause for celebration among motor carriers.
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