Four years ago I covered the case of an Allegiant flight attendant who lost his seniority for bidding on schedules for failing to pay dues to the Transportation Workers Union.
Now that case may be headed to the Supreme Court based on a new petition from the National Right to Work Foundation.
- Compulsory union membership is illegal in 27 states (‘Right to Work’ laws) where paying union dues cannot be required as a condition of employment. In 2018 the Supreme Court ruled in Janus vs AFSCME that government workers could not be compelled to pay union dues as a condition of employment either.
- Airline employees are not government employees, and state labor laws don’t trump the Railway Labor Act. And so compulsory union membership, when a majority of a work group have opted for one, remains in place for flight attendants and other aviation workers.
- The argument in this case is that the Railway Labor Act doesn’t allow for loss of seniority as a punishment for non-payment of union dues. The only penalty is termination.
Credit: Allegiant
The Allegiant flight attendant contract gives employees a choice between paying dues to join the Union or paying agency fees without joining the Union. The Agreement’s enforcement gives employees a third choice: pay neither and lose flight schedule bidding based on seniority. This flight attendant chose not to pay any fees. They lost their seniority bidding.
This past fall, the U.S. Court of Appeals for the Ninth Circuit held that the Railway Labor Act does not prohibit a collective bargaining agreement which conditions seniority-based bidding privileges on payment to the union. That’s an odd result, since seniority is a core employee benefit.
The appeals court argued that:
- This doesn’t violate the Railway Labor Act’s anti-coercion provision because it doesn’t force employees to join the union
- While the Act doesn’t specify this as a legal mechanism, it also doesn’t prohibit collective bargaining agreements with terms not explicitly permitted
- The Union didn’t violate its duty of fair representation because the rule was enforced equally for all flight attendants (even though only flight attendants who didn’t pay them lost their seniority privileges).
Here’s oral argument before the 9th Circuit and here’s the appeals court decision.
Credit: Allegiant
This is not my area of specialization, so I look forward to input from readers that are more deeply ensconced in the details here. However on face it does not seem correct to me.
Section 2 Eleventh of the Railway Labor Act (RLA) basically says, “If a union and the company want every employee to help pay for bargaining, they may do it — but the only hammer they’re allowed to swing is firing people who refuse.”
This was added in 1951 to solve freeridership of non-members benefitting from union contracts without paying for them. Congress said everyone can be compelled to pay, but the only penalty for non-compliance is dismissal.
At the same time, Section 2 Fourth says companies may not pressure workers to join a union (or pay it) in any other way. What Allegiant and the Transport Workers Union did is created three options:
- Join the union and pay full dues
- Stay a non-member and pay a smaller “agency fee”
- Lose seniority bidding system for trips
But the only penalty is loss of employment. When a statute spells out the only tool you can use, courts assume everything else is off-limits (‘expressio unius’ or ‘we meant what we said’).
Credit: Allegiant
Meanwhile, the Supreme Court has only ever approved “pay-or-be-fired.” See Railway Employes’ Department v. Hanson, 351 U.S. 225 (1956) and Machinists v. Street, 367 U.S. 740 (1961). And taking away seniority bidding is unequivocally ‘coercion’. Further, if this were allowed, there’s no limit on the penalties that could be imposed when the statute designs one. “Pay or keep flying the worst trips forever” doesn’t fit into the RLA’s statutory exception to pressure employees to pay for bargaining.
This flight attendant lost at both the district and appellate levels. The Supreme Court takes very few cases. But it does seem like a decision the current court might overturn, if they were inclined to hear it. Although if given the choice I hope they’d prioritize Simplified v. Trump.
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