As a result of yesterday’s status conference in the federal lawsuit filed by the Air Transport Association of America (ATA) to stop the National Mediation Board (NMB) from implementing the May 10, 2010 Final Rule (pdf) changing its 75-year-old election procedures, the NMB will delay the effective date of its new rule from June 10 to June 30. In the meantime, the court is expected to hear arguments on June 3 on ATA’s motion to take expedited discovery stemming from its request for a preliminary injunction against the NMB’s rule. The hearing on the injunction motion will then take place June 14. In addition, the court allowed the United States Chamber of Commerce, a group of Delta Airlines employees represented by the National Right to Work Foundation, and the International Brotherhood of Teamsters to intervene in the lawsuit. 

Seeking Discovery on Members Hoglander’s and Puchala’s Contacts With Airline Unions

The NMB rule bases union election voting outcomes on the majority of employees in the rail and air transportation industries who actually vote, instead of counting those who do not vote as “no” votes, as has been the practice for the past 75 years. Under the challenged rule, a minority of employees can select a union to represent all employees in their work group or “craft or class.” The rule has raised the ire of many, including NMB Chair Elizabeth Dougherty, who claimed that this rulemaking amounts to “the most dramatic policy shift in the history of the agency.” The ATA lawsuit is summarized in Littler’s May 18 Update, entitled “Airline Industry Files Suit to Overturn NMB Rule Change,” which also links Littler’s efforts in opposition to the NMB’s union election rule. The ATA lawsuit claims, in part, that two NMB members issued the proposed and final rule with a predetermined vision of replacing the NMB’s 75-year-old election process with a new process advocated by transportation unions. ATA’s motion to take expedited discovery, to be heard June 3, seeks discovery (depositions of union officials and written discovery requests to the NMB and the unions, including documents and e-discovery) on the following topics:

• Communications between NMB Members Harry Hoglander and/or Linda Puchala (the NMB members who issued the proposed rule and final rule against the objections of NMB Chair Dougherty) and various unions (Association of Flight Attendants (AFA), International Association of Machinists (IAM), and the Transportation Trades Department, AFL-CIO (TTD)) regarding NMB representation voting procedures; and
• Communications between NMB Members Hoglander and/or Puchala and the same unions regarding the unions’ single carrier application and union election applications for Delta Air Lines/Northwest Airlines -- which were withdrawn immediately following the NMB’s issuance of its proposed rule with the expressed hope of re-filing under a final and more union-friendly voting procedure.

In its motion, ATA argues and cites evidence that Members Hoglander and Puchala (1) excluded Chairperson Dougherty from drafting and issuing the proposed rule, and barred her from publishing a dissent, (2) timed and expedited the rule change to aid ongoing union organizing campaigns at Delta Air Lines, and (3) spearheaded the union-advocated rule change without the benefit of industry input, justification for such a sudden and sweeping change of longstanding precedent, or consideration of other changes (i.e., decertification procedures) to balance its rule. ATA also cited to the rapid appointment and confirmation of Member Puchala (a former AFA president), and Member Hoglander’s re-appointment and confirmation just before AFA’s and the IAM’s election applications at Delta, TTD’s request for sweeping changes to the election rules, and the issuance of the proposed rule just two months following the TTD’s request.

In short, expedited discovery seeks to verify many of the objections expressed in Chairperson Dougherty’s dissent to the rule, and objections expressed to Congress. (pdf)

Action on Capitol Hill to Review the NMB’s Rule

In addition, Senator Johnny Isakson (R-Ga) introduced a resolution to rescind the NMB rule under the Congressional Review Act. The resolution now has over 30 sponsors, and therefore can be brought directly to the Senate Floor for debate. The timing of this Floor debate is being determined, and may occur after the Senate returns from its Memorial Day recess.

Littler Webinar

Littler held a webinar on the short and long term implications of the NMB’s issuance of its final rule, on legal and legislative challenges to the rule, and on practical steps that airlines and railroads can take during this time. For carriers interested in accessing a link to the recorded May 25 webinar, along with an access code, please e-mail Keith Upton at kupton@littler.com. 

This entry was written by Peter J. Petesch.

Photo credit:  sumak77