Fed Ex Buys an Exemption From Labor Laws

by DAVID MACARAY

One of the more devious means by which corporate America has kept labor unions at bay is by narrowing membership eligibility requirements.  For example, because the 1935 National Labor Relations Act (NLRA) restricts “supervisors” from joining a union, businesses are busy redefining workers’ job duties to have them appear as supervisory in nature.  

Even though it’s a transparently naked power-play—one that likely wouldn’t fool a middle-school student—under George W. Bush’s administration (with Labor Secretary Elaine Chao leading the charge), businesses were nonetheless able to convince the NLRB (National Labor Relations Board) to cheat American workers out of their right to organize.

The most notorious of these exemptions was the so-called “Kentucky River decision.”  Under Kentucky River, “charge nurses” (nurses who act as lead persons) were reclassified as supervisors, thus depriving hundreds of thousands of health care employees of their legal right to join a union. 

Predictably, organized labor was stunned by the ruling, realizing its full potential.  The Kentucky River decision isn’t restricted to the health care industry.  It has across-the-board implications, affecting anyone in any industry (the construction trades come to mind) who is a lead person, a designated go-to person, a team captain, or “straw boss” (a term used in the NLRA). 

Clearly, lead persons, including charge nurses, have none of the supervisory responsibilities that “real” supervisors have, and those distinctions were explicitly laid out in the federal statutes.  It’s as simple as that.  Lead men cannot hire or fire employees, they cannot establish or alter seniority, they cannot issue mandatory work directives, they cannot adjust wages, and they cannot mete out discipline. 

In short, charge nurses were no more than quasi-administrators.  Their authority could, in principle, if push came to shove, be challenged at any time by fellow employees.  And it was this critical principle that defined them, for 70 years, as “non-supervisory,” allowing them to be part of a union.  Until Kentucky River.

Another bogus exemption is one that’s being enjoyed by Federal Express.  Founded in 1971 by wealthy Republican Fred Smith, the Memphis-based company was able (in 1996) to buy its way into another one of these bizarre anti-union classifications.  CEO Smith showered so much money on key members of Congress that he was able to get them to place FedEx under the auspices of the Railway Labor Act rather than the NLRA.

Under provisions of the Railway Labor Act (which applies to airlines as well as the railroad), FedEx workers—unlike those covered by the NLRA—can become unionized only on a national level.  What this means is that employees of a neighborhood FedEx facility cannot, on their own, vote to join a union.  Any move to become union members must be done at the national level, which makes it infinitely more difficult. 

For example, if FedEx workers in one state want to join the union, but workers in another state don’t want to, nobody gets to join.  If FedEx workers in 10 states want to become unionized, but FedEx workers in, say, Houston, Texas, don’t want to, nobody gets to join.  It’s like giving a tiny minority veto power.  What this did, in effect, was prevent the International Brotherhood of Teamsters (IBT) from making a run at them.  And the FedEx exemption is all about the Teamsters.

FedEx’s main competitor is United Parcel Service (UPS), which is not only a unionized company, but the largest employer of Teamsters in the United States.  UPS was founded in 1907 as the American Messenger Service in Seattle, and consolidated in 1930, when it moved to New York.  But because it was founded as a “ground carrier,” it came under the authority of the NLRA and remained there

Of course, FedEx and UPS are in the same business, and both use ground as well as air delivery, so there’s no significant difference between the two carriers.  The only difference is the astonishing loophole provided by the U.S. Congress….in return for cash contributions. 

Cynics will say this is politics as usual, one more case where money talks and justice walks.  But if this is only about money, then organized labor needs to ante up.  If congressmen can be bought, then the AFL-CIO needs to dip into its prodigious war chest and do just that.  It needs to buy some congressmen.  And if this means buying Republican congressmen, then so be it.      

As for “politics as usual,” President Obama has recently come under fire for not choosing to make recess appointments to the NLRB, which has been crippled by vacancies for almost two years.  Recess appointments are federal appointments made when the Senate is out of session, and are subject to confirmation when the Senate next convenes. 

Even Supreme Court Chief Justice John Roberts—not exactly a pro-union radical—has chided Obama for not moving to fill these vacancies via recess appointments, apparently alarmed at the backlog of NLRB cases not receiving full hearings.   Of the five-member panel, only two seats are currently filled.

But Obama hasn’t responded.  Some of the president’s defenders say it’s because he’s been too busy with health care reform; others say it was the Wall Street bailout that got him side-tracked; still others say that he wants to wait and get his NLRB nominees appointed with full Senate approval, rather than risk them being recalled. 

Then there are those who wonder where the president’s head is at.  Is he as pro-labor as he led the AFL-CIO to believe?  Consider:  It was Obama himself who, when asked to name a CEO he admired, named FedEx’s Fred Smith.  In Bloomberg’s BusinessWeek, Obama praised Smith, gushing, “He’s an example of somebody who is thinking long-term.” 

That’s terrific.   Fred Smith impresses President Obama as a genuine visionary.  Except his vision calls for working people being reduced to chattel.  Just come out and say it, Mr. President:  “Smitty, you’re doing a heck of a job.”

DAVID MACARAY, a Los Angeles playwright, is the author of “It’s Never Been Easy:  Essays on Modern Labor” (available at Amazon, Borders, Barnes & Noble, etc.) He can be reached at dmacaray@earthlink.net

 

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