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.
Since all job benefits are negotiated by a union (if there is a union), if a person does not join that union, he/she should not receive any of those benefits. The non union person should have to negotiate his/her own benefits. Otherwise it’s nothing less than freeloading. Why should someone who pays nothing, or sacrifices nothing, benefit off of those that do pay?
I was a former near 17 yr employee for Southwest Airlines and served as a rep for a few of those years for TWU555. In 2021 at a small South Carolina station I worked at for Southwest we had a couple corrupt union reps who had the mindset that the members serve them but not serve the members. It created a very toxic work environment and neither TWU555 or Southwest would do anything about it. Still going on to this day. I was very loyal to TWU555 but that Loyalty Flatlined almost 4 yrs ago just like the one time Southwest Airlines Culture. DOA !!
The U.S. Court of Appeals for the Ninth Circuit is the largest of such circuit courts. It should have been split up many decades ago. As it is, it has jurisdiction for around 20% of the population of the USA and is the most overturned U.S. Court of Appeals circuit court. That being said, I doubt that the Supreme Court will take up this case. I also see the seniority rule as an employment perk (not a penalty) backed by the union contract so removing the perk for someone not paying dues or fees is appropriate.
Empowering workers through unions yields significant benefits for individuals and our society. We deserve higher wages, improved working conditions, and greater job security. In many industries, collective bargaining is one of the best ways for people to address power imbalances in the workplace. While leadership quality varies across all organizations, the fundamental value of unionization in leveling the playing field remains. It’s worth questioning narratives that dismiss unions, especially given the pervasive influence of corporate-backed media. Some of you happily punch-down on here all the time, and it’s concerning, too. Yikes.
@jns — Interesting side conversation on the courts. So, there are 13 circuit courts of appeal currently in the federal system. While I agree with you that the U.S. Court of Appeals for the Ninth Circuit should indeed be broken apart, as should other circuits, all based on relative populations covered, geographically, not ideology, which I presume is your actual underlying ‘distaste’ for the 9th (it includes some big ‘blue’ states, after all, and I know your anti-left comment history on here). Likewise, there should be more justices on Supreme Court, perhaps to match the number of circuit courts. Currently, 9, probably should be 13 or more. Other countries with similar systems have more. Quantity does not guarantee quality, but it may ensure better representation, or not. Congress can evaluate and legislate, or not. Or, we can do dictatorship, and who needs court then. Time will tell.
@jns. Cite your source as the 20% applies to all cases by alll appeal courts. And the 9th has more corporations and people then the cows in Montanan
National Right to Work Foundation should be called what it really is: National Right to Undermine Workers Foundation.
Parker – grew up in a union family and believe strongly in the spirit and intent of unions.
That said, if the contract between Allegiant and union was negotiated in good faith and this “pay or lose seniority” cause was negotiated and the employee in question has a choice: pay the dues or pay the agency fee or face loss of seniority bidding if you refuse to do neither, this is not coercion. It’s called being an adult and being held accountable for the decisions you make. This flight attendant strikes me as another person who wants all of the benefits without any of the responsibilities that come with it.
Hopefully SCOTUS rules in favor of the FA and given the make up of the court that is reasonable likelihood. Anything that weakens unions or gives workers that don’t want to pay greater freedom is good for America.
Supporters of unions, as they are structured in this country and most of the Western world, advance both hypocritical and immoral ideologies. Unions represent the antithesis of freedom.
@AC – said differently:
Anything that curbs workers’ rights to organize and negotiate for compensation and working environments is good for America.
Not quite how I see it, but I can imagine this would be popular with the executives making seven- and eight-figure salaries while the average middle-class American struggles to pay for the basics on their five-figure salaries. I can also see it being popular with those who believe prosperity is a zero-sum game where the poor are coming to take from the wealthy.
@Parker – my view is different from either you stated. First of all I started out lower middle class and my dad died when I was 16 so even going to college (at a state university) was a struggle for me. However, I took advantage of the opportunity, majored in computer science and math then took every opportunity I was presented to add value to the company where I worked. I continually took on more responsibility and also moved 4 times around the the country for career opportunities. Net is I was Chief Information Officer of 2 national companies, Chief Technology Officer of another one, partner in a consulting firm and also had my own consulting business for a few years. This was done with initiative, hard work and taking advantage of opportunities as they became available. I’m now retired but will leave a very nice inheritance for my kids (and living an incredible lifestyle).
I would never have achieved what I have if I was in a union. IMHO unions protect the incompetent employees and hold back the ambitious ones. The only thing that matters is seniority. How sad that people settle for that and not bet on themselves to do better. People in a union that are jealous because they aren’t making mid-high 6 figure (or 7 figures) incomes only have themselves to blame for settling on a job that will, at best, keep them smack dab in the middle class.
Here’s a link to the actual cert petition, for anyone interested: https://www.supremecourt.gov/DocketPDF/24/24-1101/356113/20250421152640316_No.%2025-__Petition%20for%20a%20Writ%20of%20Certiorari.pdf
@Mike P — Sir, it’s been a while, but I knew anything union would bring you out from the cave. Here’s the deal, unions ensure liberty, which is slightly different from freedom. “Freedom” generally refers to the ability to act without hindrance or external control, while “liberty” often implies freedom as a guaranteed legal right, especially within a political or legal framework. I understand that you want freedom, but seek to deny it from others, which is why liberty is important, and unions seek to preserve a balance of both, by ensuring that workers have power, too. Unions nor corporations are inherently immoral or ideological.
Here’s my quote for the day for you, it’s a scene from Star Wars: Episode II — Attack of the Clones.
Obi-Wan Kenobi: You don’t want to sell me death sticks.
Elan Sleazebaggano: Ah, I don’t want to sell you death sticks.
Obi-Wan Kenobi: You want to go home and rethink your life.
Elan Sleazebaggano: I want to go home and rethink my life.
Mike P, go home and rethink your life. Please.
@L737 — How this for a reference?
@1990 – A solid reference, you have made /yoda. I didn’t realize the death stick pawner had a name, and a quite fitting one at that -TIL!