Last week the Workforce Fairness Institute posed an interesting question: which arm of the Obama Administration is killing more jobs, the NLRB or the National Mediation Board?  And while the NLRB just issued a rare pro business ruling (!) and the Boeing case is simmering on a back burner, the NMB again takes the lead.

The NMB has announced a full-scale investigation into last fall’s long anticipated Delta flight attendant election, the largest union election since 1935.  Of the 18,760 votes cast 51% voted no union, 46% voted for the Association of Flight Attendants -CWA and the remaining votes went to write-ins.  The investigation renews concerns for Big Labor’s influence over the NMB which last year inexplicably overturned seven decades of precedent to do away with majority rule in transportation elections, and just in time for the Delta vote.  If the NMB finds employer interference it could order a new election and further burden the airline with many more months of major disruption along with the total cost of a revote.

Delta attendants have twice before soundly rejected the AFA-CWA while the 7000 Northwest attendants in the newly merged unit have been unionized for decades.  Delta baggage handlers and customer service reps also voted under the new election standards and rejected the Machinists union by even wider margins. Yet the Machinists are also claiming interference and on grounds similar to the AFA – too many anti-union voters turned out to vote.

94% of eligible voters turned out for the flight attendant election, unprecedented if not unimaginable for a unit so large.  The AFA’s complaint hinges on the loathsome contention that the turnout was in fact too high and Delta’s push for full participation was somehow illegal. When results were announced the union’s stunned general counsel groused that the AFA would have won had the turnout only stayed under 90% as their organizers planned.

The union cites Delta statements like “You must vote for your voice to be heard” as evidence the airline deceived employees into believing voting was mandatory.  The union also accuses Delta of projecting a “false air of neutrality” for putting “Your Vote Matters” and “Decision 2010” on Delta voting materials while not reminding voters strongly enough that they had a write-in option.  And even though both the union and the board agreed to allow voting on Delta computers, the union now claims voters had reason to believe those votes were being monitored.

How the Board found merit in these squirrelly allegations is of great concern and its ruling on this case could conceivably call into question any management message that promotes democratic participation or projects an air of neutrality. If anything, the turnout and results suggest that perhaps under the old overturned NMB standard when folks didn’t come out to vote for a union it really did mean they didn’t want one.  A decision in the case is expect to take several months.

Meanwhile, the NLRB decided one for the job creators last week and held that the Teamsters broke the law by demanding a construction contractor comply with an agreement not to use the services of two nonunion trucking companies, and then striking the contractor to enforce that agreement.  The ruling shocked Obama Board observers who were unaware until last week that a union can actually violate the NLRA.

With several Congressional probes underway and the Solomon and Becker appointments due to expire, the Board sounded uncharacteristically independent and lucid in its explanation of the Teamster ruling; it has historically drawn a line between generally lawful agreements designed to protect the work of the primary employer’s employees, and generally unlawful agreements designed only to leverage the primary employer into pressuring a “secondary” employer to reach other union objectives. These sentiments seem in conflict with at least the spirit of last week’s “rat ruling” that protects as “free speech” the hectoring of secondary employers with giant snarling inflatable rodents.