Lawbreaker. That is exactly what we need to start calling American Airlines for its blatant refusal to proceed with a union election among its 9,600 passenger service agents that was legally and properly ordered by the National Mediation Board.
The NMB needs to aggressively step in and make sure its rules are followed so that these employees are free to decide if they want to be represented by a union. Given what is going on financially with the airline, having a union representing a worker's interests instead of placing his or her trust with the CEO is a no-brainer. And AMR Corp. knows exactly what it is doing. Delay, based on a discredited legal theory, is the company's strategy.
Here are the facts. In December 2011, the Communications Workers of American filed a request with the NMB for an election among American's passenger service agents. The request was supported by more than 35 percent of the workers, which is what the law required at the time. Let me repeat that. Over 35 percent of these employees demonstrated interest in having a union election under the rules in effect late last year.
AMR objected to the application and sought to delay and hopefully run out the clock on an election (are you sensing a theme here?). As the NMB was working through the roadblocks put forth by the company, the law was changed by Congress to require election requests to be supported by 50 percent of the workforce. The new rules were signed into law on Feb. 14, 2012, more than two months after the passenger service agents filed for a union election.
Putting aside for a second whether raising the threshold was a good idea (it wasn't), the fact remains that nothing in the new law suggests going back in time and retroactively applying the new standard. How can one expect a union -- or a workforce -- to meet a standard it didn't know was going to exist? CWA is a strong union, but I'm afraid fortune-telling isn't a skill-set it has acquired.
There are no legal grounds for AMR's position, and the airline knows it. The NMB has already rejected AMR's claims that the statute should be applied retroactively and noted that both CWA and AMR correctly relied on the 35 percent standard in place at the time the application was filed.
The Supreme Court has stated clearly that "a statute may not be applied retroactively...absent a clear indication that Congress intended such a result." What's next? House Majority Leader Eric Cantor claiming the Bush tax cuts for millionaires and billionaires should apply in prior years before these giveaways to the rich were enacted?
When you read the new law, there is absolutely no indication that Congress wanted this change to apply retroactively. In fact, quite the contrary exists here. United States Senators Tom Harkin (D-Iowa), the chair of the Labor Committee and Harry Reid (D-Nevada), the body's Majority Leader, made clear that under the new standard "the showing of interest requirement should only apply prospectively and should not apply to any application for representation pending at the time of the effective date of the legislation." Maybe AMR has a secret appendix to the law that only its legal department in Dallas has seen. The facts matter here, and they are not on AMR's side.
As of right now, AMR is refusing to send to the NMB the list of employees eligible to vote in this union election. The law is clear here and American is blatantly defying it. The NMB has issued a legally binding order and AMR is simply refusing to comply and afford its workers a basic right to vote for or against union representation.
The NMB has been more than patient, but time is up. It's time for either the federal courts to force AMR to comply with the law, or the NMB to move forward with an election.
Lawbreakers need to be held accountable.
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