Published
February 15, 2024
On February 12, more than 140 House members, virtually all Democrats, wrote to the CEO of Delta Airlines requesting that the company sign a neutrality agreement with unions seeking to organize its flight attendants, fleet service workers, and technicians. This comes on the heels of 33 Senate Democrats telling the CEOs of automakers that they should sign neutrality agreements with the United Auto Workers union.
When it comes to union organizing, hostility to free speech has now spread from the upper chamber of Congress to the lower. The House letter nonchalantly states that “A neutrality agreement simply consists of an employer agreeing not to engage in pre-election activities that influence workers’ freedom to form a union.” That is a hefty understatement because a neutrality agreement is much, much more.
What Don’t Unions Want Workers to Know?
As the Chamber has noted previously, at its most basic level, a neutrality agreement means that employers waive their statutory and constitutional rights to speak to and engage with workers during an organizing campaign. It asks nothing similar of unions. This has significant implications.
The law places few, if any, limits on what unions can say. As such, unions can promise workers anything, such as massive pay increases or traditional defined-benefit pension plans. Under a neutrality agreement, no one will point out that these promises may be unrealistic. Moreover, no one will explain to workers the potential downsides of unionizing, such as having to pay union dues, limitations on flexibility in the workplace, and the requirement that any changes to working conditions (such as pay or benefit increases) must be negotiated through the union.
The bottom line is that under a neutrality agreement, workers only get information from one side and will have difficulty making an informed decision about a critical workplace issue.
Different Statutes, Same Speech Protections
While advocating for the same outcome as the 33 Senate Democrats, the House letter differs in one respect. The UAW seeks to organize car makers under the National Labor Relations Act (NLRA), while a different statute covers Delta’s employees — the Railway Labor Act (RLA). As such, the House letter states that “a neutrality agreement is the bare minimum standard that Delta should meet in respecting workers’ rights” in order to “comply with the RLA.”
That is simply incorrect. Under both statutes, employers retain free speech rights. It is well established that employers can speak on union issues under the NLRA. In a seminal case, U.S. Airways v National Mediation Board, the D.C. Circuit wrote that “the RLA’s language prohibiting employer ‘influence’ of employees … while superficially broader than the NLRA’s prescription … has been interpreted to mean pretty much the same thing.” In other words, the RLA does not mean employers need to sign neutrality agreements to remain compliant with the law.
None of this seems a deterrent to certain members of the House and Senate. But while those legislators are all too eager to help unions, it’s disappointing they show such little regard for workers, who deserve to hear both sides of the story.
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About the authors
Glenn Spencer
Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.
