December 27, 2023
The United States Department of Justice is still actively litigating to prevent the Spirit-JetBlue merger. Nevertheless, we herein address the effect such a potential merger would have on union representation.
Contrary to certain rumors circulating on the floor, union representation at an air carrier is not determined by corporate fiats or sales agreements but by a federal agency – the National Mediation Board (NMB or Board). The United States Supreme Court has held that the Board has exclusive jurisdiction over representation questions under the Railway Labor Act. Switchmen's Union v. National Mediation Board, 320 U.S. 297 (1943).
The first required step is for an organization or individual to request that the NMB make a finding that two separate carriers have now become a “single transportation system.”
NMB finds a single transportation system only when there is substantial integration of operations, financial control, and labor and personnel functions. Southwest Airlines/AirTran Airways, 43 NMB 120 (2016); Delta Air Lines/Northwest Airlines, 36 NMB 36 (2009); Burlington N. Santa Fe Ry. Co., 32 NMB 163 (2005). This might occur months, or even years, after the sale is finalized.
Once a single transportation system is found, the NMB will proceed to investigate representation issues. Existing union certifications remain in full force and effect until the NMB issues a new certification or dismissal. NMB Representation Manual § 19.7.
In order to extend its certification to represent both Spirit and JetBlue AMTs, AMFA need only submit a “showing of interest” from (50) percent of the employees in the combined craft or class of Mechanics and Related Employees. NMB Representation Manual § 19.601. Evidence of a showing of interest can be demonstrated by AMFA’s existing Spirit certification and supplemented by authorization cards collected from JetBlue AMTs. In that event, the NMB may, in its discretion, then either extend AMFA’s certification unilaterally or schedule an election that determines the preference of a majority of employees casting ballots.
In short, Spirit and JetBlue will control their own collective fate with respect to union representation.
A merger is a particularly bad time to be without union representation. Under a federal law, referred to as the McCaskill-Bond Amendment, sections 3 and 13 of the labor protective provisions imposed by the Civil Aeronautics Board in the Allegheny-Mohawk merger (as published at 59 C.A.B. 45) applies the seniority integration of employees at merging airlines. If the respective employee groups cannot reach an agreement on seniority integration, the matter must then be submitted to arbitration where complex economic arguments concerning the two airlines’ respective pre-merger business prospects become the principal focus. AMFA’s officers, attorneys, and economic consultants are experienced in these issues.
Stay engaged, remain informed, and continue to support the Negotiating Committee. And remember that rumors often spring from individuals with bad intentions.