Local view: UPS and Teamsters join forces to hobble FedEx

Soon the U.S. Senate will vote on the Senate's version of the Federal Aviation Administration Reauthorization Act of 2009 (H.R. 915). I hope that our senators will pay close attention to this bill, and will vote against it if it contains the House provision that aims to fundamentally alter how the employers in the air carrier industry, like FedEx, are governed.

This small provision would change the regulatory status of FedEx from the Railway Labor Act (RLA), which is designed for rail and air carriers, to that of a trucking company under the National Labor Relations Act (NLRA). Railroads have been governed by the Railway Labor Act since it was passed in 1926. The law was extended to air carriers in 1936. FedEx Express has been covered by the RLA since FedEx went into business in 1971.

The Railway Labor Act protects interstate commerce transported by rail and air carriers by requiring nationwide bargaining groups, emphasizing bargaining and mediation, and allowing strikes in more limited circumstances. The National Labor Relations Act allows local bargaining units, less extended bargaining and local strikes that are easier to call.

Easily called local strikes can halt interstate deliveries by national rail and air carriers. That's what the RLA was designed to constrain and that's why H.R. 915 would negatively impact millions of Americans, including FedEx Express workers and customers, and the many businesses that rely on its services. Nebraska small businesses and industries rely on FedEx Express for timely deliveries every day.

This is a particularly troublesome legislative proposal because it springs from the same source as the Card Check bill. Why do the Teamsters want FedEx Express covered by the NLRA? Because organizing under the NLRA is much easier, and that's what private sector labor unions seek in the 21st century - ease of organizing. They want the Congress to do their job for them.

Labor unions in the private sector today have had major problems organizing, but not because of flaws with current laws, which are balanced and under which unions in the 1950s successfully organized more than

35 percent of the American private sector workforce. The problems faced by organized labor today are strictly of their own making. They cannot close the deal with today's employees. They have failed to persuade American workers to accept unionization. Private sector union membership is down to just more than 7 percent.

Rather than rethink and retool what they have to offer, unions turn to Congress with bills like H.R. 915 and Card Check.

The Teamsters aren't working alone in this legislative effort. The provisions of H.R. 915 are a remarkably cynical effort by United Parcel Service to solve its competitive problems by tying UPS' millstone around FedEx's neck. In 1997, United Parcel Service, which employs 240,000 Teamster members, tried to improve its competitive position by proposing a contract change to the Teamsters. The proposal would not have reduced the benefits under the UPS pension plan but would have relieved UPS from subsidizing the pension plans of other companies that the Teamsters had placed in the same multi-employer pension plan as UPS.

Foolishly, UPS assumed that the Teamsters and their members would see the reasonableness and advantage of this proposal. Instead, the Teamsters abjectly refused to consider it and called a devastating strike against UPS. The strike lasted 15 days and cost UPS upwards of $50 million per day.

All through the 1990s, UPS, a ground-based company that has been covered by the NLRA from the start, repeatedly attempted and repeatedly failed to extricate itself from the NLRA and to have its drivers covered by the RLA.

Rather than take its lumps and compete, UPS' answer now is to team up with the International Brotherhood of Teamsters to hobble its competitors with the same costly baggage that UPS itself unsuccessfully sought to shed.

This is not an academic problem. FedEx has informed Boeing that it will cancel its order for 15 Boeing 777 aircraft if H.R. 915 is passed with this provision.

To quote the American World War II general who refused to surrender in Europe, this is "nuts." H.R. 915 should not be enacted into law if the provision moving FedEx Express out of RLA jurisdiction is included.

Bob Evnen is a Lincoln lawyer who represents businesses in labor and employment law issues.