Preemption of Worker-Retention and Labor-Peace Agreements at Airports (2017) / Chapter Skim
Currently Skimming:
Pages 3-30
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 3... ...
3PREEMPTION OF WORKER-RETENTION AND LABOR-PEACE AGREEMENTS AT AIRPORTS By Eric T Smith, Kaplan Kirsch & Rockwell, LLP I
|
From page 4... ...
4alteration of statutorily granted rights that forms the basis for claims of preemption. In order to fully comprehend those arguments, it is necessary to first understand the foundation on which those arguments are constructed.
|
From page 5... ...
5Although both the RLA and NLRA contain numerous provisions relevant to the airport context, the focus for the purposes of this digest will be on the process for -- and restrictions on -- establishing union representation prior to collective bargaining, as these have been the most relevant to labor-harmony and worker-retention issues at airports.
|
From page 6... ...
6If more than 50 percent of the number of employees who voted choose a particular union, NMB will certify that union as the workers' representative.19 If there are multiple unions seeking to represent the class or workers and no selection wins a majority, NMB may conduct a runoff election between the two choices that receive the most votes (including, if applicable, the choice of not unionizing) .20 Once a union is selected, collective bargaining can commence.
|
From page 7... ...
7the rules, and the Obama administration has likewise opposed congressional measures to undo them.34 As a result of the rule changes, employers can likely expect less time to prepare for unionization elections or conduct an opposition campaign. Airport owners should be aware of this new limitation for airport-based businesses that desire to keep their operations union-free.
|
From page 8... ...
8The allowable scope, content, means, and methods that may be utilized by employers in conducting this campaign are outlined in Section II.A.3.
|
From page 9... ...
93. Employer Rights to Engage Its Employees in Discussions About Unions Employers have a substantial number of rights with respect to efforts to inform employees about their viewpoints on potential unionization of their workforce.
|
From page 10... ...
10 discourage union membership.60 Under the NLRA, employers may campaign on company property and may require employees to attend so-called "captive audience" meetings at which the employer's representatives can assert the employer's position; however, audience meetings cannot be held within 24 hours before an election.61 Employers can also give employees written information and hold individual meetings with employees, absent an agreement with the union stating otherwise.62 Under the NLRA, however, it is considered an unfair labor practice for an employer to restrain or coerce employees with regard to union activities.63 An employer cannot threaten to close operations or discriminate against an employee because of his or her union activities.64 An employer also cannot raise wages to discourage workers from joining or forming a union.65 Distilling all of the above, employers are prohibited from: 1. Threatening employees in any way (adverse job actions such as lowering pay, terminating employment, closing the site, reducing staffing, etc.)
|
From page 11... ...
11 B The General Rule -- Labor Relations Matters Are Preempted By Federal Statutes, Rules, and Regulations The ground rules established by the RLA and NLRA have profound implications on state and local governments' ability to regulate or otherwise alter labor relations due to the doctrine of federal preemption.
|
From page 12... ...
12 In Hughes, the Court upheld a Maryland statute that had the effect of providing special state-funded incentives to in-state automobile scrappers to encourage the recycling of abandoned automobiles. In upholding the constitutionality of the statute, the Court stated that "[n]
|
From page 13... ...
13 market might be easy enough to state, in practice, however, distinguishing between the two can become difficult.104 For instance, as indicated in Gould, if a state's direct participation in the market is "tantamount to regulation," the market-participant doctrine will not exempt the state's action from preemption.105 The particular test used to determine whether the market-participant doctrine applies differs slightly between jurisdictions, although the general effect appears to be largely the same. The Fifth, Second, and Ninth Circuits have adopted a test known as the Cardinal Towing test.
|
From page 14... ...
14 III. LABOR-HARMONY AGREEMENTS AND WORKER-RETENTION PROGRAMS The previous sections describe the rules of the game when it comes to labor relations under the RLA and NLRA.
|
From page 15... ...
15 to abide by labor-harmony agreements, although the specific terms of the agreements to be entered into are not provided. For instance, a Miami-Dade County resolution provides: WHEREAS, Miami-Dade County has a financial and proprietary interest in the success of the concessionaires doing business at Miami International Airport… NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that all Requests for Proposals, Requests for Qualifications and bids for food/beverage, retail/news/gifts and hotel services at Miami International Airport ("MIA")
|
From page 16... ...
16 In the context of a labor-harmony agreement, the public entity merely requires the parties to agree to a labor-harmony agreement without imposing any specific terms, such as neutrality (the proverbial "agreement to agree")
|
From page 17... ...
17 cause within 90 days of the transition.130 Workerretention programs can be established on their own or may be established as part of or alongside laborharmony agreement requirements. The stated purpose of worker-retention programs is to (1)
|
From page 18... ...
18 recognition by Philadelphia government subcontractors can offer exemption from Philadelphia's living wage law, thereby reducing the employer's costs, in return for recognition. This example demonstrates how rights and benefits outside the NLRA and RLA may become intertwined with union recognition negotiations.
|
From page 19... ...
19 b. Costs to Union to Organize a Work Unit. -- Organizing workers is both a costly and uncertain process.143 The costs to a union in organizing a unit can include monitoring and responding to management activity, engaging with employees, and campaigning to collect signatures.144 As discussed in Section II.A.1.a, "campaigning" before petitioning for an election and then between the petition and the election is a long and involved process that includes numerous persons on the ground, as well as a litany of supporting personnel such as counsel and research staff.
|
From page 20... ...
20 drastically reduce service or even pull out of a market altogether -- events that will have a major impact on a business's cash flow. Further, staffing challenges are present with on-airport businesses.
|
From page 21... ...
21 "living wage" requirements and healthcare benefits, including paid sick time off, have featured prominently in recent union activity.154 Unions have helped spearhead many rights-focused campaigns, such as Fight for $15, the much-publicized campaign to urge fast food restaurants to pay employees a $15 base wage.155 This and other such campaigns have specifically targeted airports.156 These campaigns have allowed unions to rally new public and political support. They also serve as a new recruitment method.
|
From page 22... ...
22 The success of the AIRMALLed campaign is said to be mixed. AIRMALL has refused to negotiate, and UNITE HERE has been forced to defend its business practices and seek other measures to address labor issues, including implementing new educational programs for employees.165 AIRMALL has faced labor and political pressure at other airports for which it is seeking to bid for developer rights.166 More broadly speaking, the events at BWI have brought unionization to the forefront of discussions surrounding new and renewed contracts for concessions development around the country.
|
From page 23... ...
23 service members on a national basis is an extremely time-consuming and burdensome task. The implications for the companies and the airlines that they serve are also more far-reaching and may be of more concern to both parties.
|
From page 24... ...
24 that restrictions on union self-help measures expire under an agreement, the potential for these disruptive measures may actually increase. In addition, providing access to restricted areas may increase the threat of security risks at airports.
|
From page 25... ...
25 has been put in place. Also of note is the fact that some labor-harmony agreements and worker- retention programs provide for arbitration or mediation as a dispute-resolution mechanism, which may bar or deter employees and unions from suing to implement or enforce such provisions.173 C
|
From page 26... ...
26 card-check procedure, the rule also included other provisions affecting the conduct of employers at the Airport, one of which required the labor agreement to compel the parties to submit to binding arbitration over disputes about the proper interpretation of the agreement or issues arising out of the card-check process.184 Notably, the card-check rule also obligated employers to include in any subcontract a provision requiring the subcontractor to abide by the terms of the rule.185 Aeroground, a company that provided baggage services for the Airport, challenged the rule after the International Brotherhood of Teamsters requested Aeroground to enter into a labor agreement with it under the card-check rule, arguing that the NLRA preempted the Airport's requirement.186 The court agreed, holding that the card-check rule was preempted under the Garmon doctrine (which "stands for the proposition that states and municipalities may not set forth standards of conduct that are inconsistent with the substantive requirements of the NLRA.") 187 Although the Garmon case involved concerted activities and Unfair Labor Practices (ULPs)
|
From page 27... ...
27 would exist here if defendants purchased Aeroground's cargo-handling services. But defendants do not assert that they contracted directly with Aeroground in this regard; rather, defendants have attempted to influence the behavior of certain employers at the airport ostensibly to minimize labor unrest.
|
From page 28... ...
28 the concessionaire and the airport owner in federal district court after the concessionaire decided to seek another company to fill the subtenant's space.205 During the proceedings, the concessionaire and the airport owner moved for a summary judgment on the subtenant's claims, including its § 1983 claims. In denying the concessionaire's and airport owner's motion for summary judgment on the § 1983 claim, the district court held that the defendants' insistence on requiring a labor-harmony agreement potentially amounted to a denial of federal protections afforded under the NLRA.206 Responding to arguments by the union that the NLRA preempted any § 1983 claims, the court noted that the subtenant had alleged unfair union labor practice violations under Section 8(b)
|
From page 29... ...
29 asserted the argument that local labor laws issued on safety grounds violate the FAA.220 E Potentially Mitigating Factors As previously discussed in Section IV.B, the laborharmony requirements enacted by ordinance or other municipal action (such as an airport authority mandate)
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.