[Congressional Record Volume 142, Number 138 (Monday, September 30, 1996)]
[Senate]
[Pages S11854-S11856]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      FEDERAL EXPRESS ANTI-LABOR RIDER TO FAA REAUTHORIZATION BILL

  Mr. KENNEDY. Mr. President, I strongly support the FAA reforms, but I 
strongly object to the anti-labor rider that the Republican leadership 
has attached to this bill.
  This controversy is a good example of why the sun is setting on the 
Republican majority in Congress. As their parting shot at American 
workers in the closing hours of this Congress, the Republican 
leadership is demanding that an unacceptable anti-labor rider be 
attached to this needed aviation security bill.
  That riders is special interest legislation of the worst kind. It is 
designed to help Federal Express Corp. block the ongoing efforts of its 
truckdrivers in Pennsylvania to join a union.
  Federal Express is notorious for its anti-union ideology--but there 
is no justification for Congress to become an accomplice in its union-
busting tactic. I intend to do all I can to see that this anti-worker 
rider does not become law. It has no place on the FAA bill, and it 
deserves no place in the statute books.
  I believe that as the facts of this controversy become widely known, 
working men and women across America will be shocked at the lengths to 
which the Republican majority in Congress is willing to go in their 
attempt to enact their anti-worker ideology into law.
  Why is Federal Express willing to go to such drastic lengths to force 
this rider into law? Because they see the sun setting on the Republican 
anti-worker majority in Congress, and they know there is no hope that 
their special interest provision will be enacted by a Democratic 
proworker majority in Congress.
  On September 26, under the guise of a technical correction to the 
Railway Labor Act, an unacceptable special interest provision was 
attached to the FAA reauthorization bill.
  This provision is in no sense a technical correction. It makes a 
significant change in Federal law to give the Federal Express Corp. an 
edge in its blatant attempt to stop some of its employees from joining 
a union.
  Under present law, airline employees are covered by the Railway Labor 
Act, which requires employees to form a nationwide bargaining unit if 
they wish to have a union. Truck drivers, however, historically have 
been subject to the National Labor Relations Act, which allows smaller 
bargaining units to be established on a more local basis.
  This split coverage makes sense. It has been national labor policy 
since the 1930's, when the National Labor Relations Act was passed and 
the Railway Labor Act was amended to cover airlines as well as 
railroads.
  United Parcel Service, which has both airline and trucking components 
of its business and competes with Federal Express, is covered by the 
Railway Labor Act for its airline operations and by the National Labor 
Relations Act for its trucking operations. UPS truck drivers formed 
local unions decades ago pursuant to the National Labor Relations Act, 
and are members of the Teamsters Union.
  Federal Express truck drivers are not unionized. However, truck 
drivers at the Pennsylvania facilities of Federal Express have been 
trying for nearly 2 years to organize and become members of the United 
Auto Workers. The drivers filed a petition for a union election with 
the National Labor Relations Board in January 1995.
  Federal Express challenged the petition, arguing that the entire 
company,

[[Page S11855]]

including its truck drivers, is covered by the Railway Labor Act, not 
the National Labor Relations Act, and that therefore the bargaining 
unit for its truck drivers must be nationwide. The Board has not yet 
decided the issue.
  This is a matter that is currently in litigation, even while we are 
here today. We ought to let the litigation move forward. But the action 
that was taken on the FAA bill has preempted effectively the litigation 
which is under consideration even as we meet here this afternoon.
  In the final days of this Congress, Federal Express is trying to 
short-circuit the NLRB process by including an amendment in the FAA 
reauthorization bill to guarantee that its truck drivers are covered by 
the Railway Labor Act, and thereby block local union-organizing efforts 
by its truck drivers in Pennsylvania and elsewhere.
  You can say, ``Why not just let them proceed under the existing law, 
either they have the support and have the votes or they don't?'' And 
let the National Labor Relations Board make a judgment as to whether 
the Railroad Act applies to them or whether they would be treated under 
the National Labor Relations Act.
  Just under 3 weeks ago, the Senate Appropriations Committee defeated 
an attempt to add the Federal Express rider to the Labor-HHS 
appropriations bill. The attempt failed on a 10 to 10 tie vote. 
Earlier, in the House of Representatives, Republicans tried to add the 
provision to the railroad unemployment compensation bill, which had 
overwhelming bipartisan support. The attempt created so much 
controversy that Republicans quickly abandoned the effort.
  It makes no sense to tie this objectionable provision to important 
legislation like the FAA bill. This bill authorizes the FAA's programs 
for 2 years. It provides for needed improvements in the Nation's 
airports. It streamlines the FAA's construction program to improve its 
efficiency and make it less complicated.
  The bill also contains important safety measures, including needed 
provisions to improve security at the Nation's airports. It is a good 
bill, deserves to pass, without the special interest rider for Federal 
Express.
  Supporters of the Federal Express rider claim that it is simply a 
technical correction. That is false. In 1995, as part of the act 
terminating the Interstate Commerce Commission, Congress deleted the 
term ``express company'' from the Interstate Commerce Act and the 
Railway Labor Act.
  We deleted that term because the last express company, the Railway 
Express Agency, went bankrupt in the early 1970's. In a true 
``technical correction,'' Congress deleted this obsolete language from 
the statutes where it appeared.

       The deletion of ``express company'' from section 1 of the 
     [Railway Labor Act] does not appear to have been 
     inadvertent or mistaken.

  This is the conclusion of the Congressional Research Service. We had 
distributed to us a number of pieces of paper from some of the House 
Members who had been active in initiating these provisions. They make 
the point that this was really a technical amendment and was really 
because it was inadvertent that this language was left out of the 
restructuring of the interstate commerce legislation in 1995 when we 
eliminated the Commission.
  This is, according to the Congressional Research Service, their 
conclusion of analyzing the history of this proposal:

       The deletion of ``express company'' from section 1 of the 
     [Railway Labor Act] does not appear to have been inadvertent 
     or mistaken. To the contrary, the deletion appeared to be 
     consistent with the statutory structure and the intent of 
     Congress. Since the [Railway Labor Act] coverage had been 
     triggered by federal regulation of express companies, it 
     appears logical and necessary to eliminate the cross-
     reference to Title 49 from the RLA to preclude ostensible 
     coverage of nonexistent express companies. The elimination of 
     ``express company'' from the RLA therefore appears to have 
     been a necessary step in harmonizing the RLA with the revised 
     Title 49 of the U.S. Code.

  So here is the Congressional Research Service, when they are asked--
as this is an action that was just taken on Friday of last week--
whether the changing of this with the legislation is just correcting a 
technical oversight or whether the elimination of those words of art 
``express company'' was intentional, their review of the history shows 
it was intentional.
  It passed virtually unanimously in the House and the Senate for the 
reasons that have been expressed in their memoranda. We will include 
that as a part of the Record. So this was not a technical correction.
  But Federal Express was not and is not an ``express company'' within 
the meaning of the Railway Labor Act or the Interstate Commerce Act. 
They define exactly what is an ``express company'' and what has not 
been. They have been defining that for a long period of time, for a 
period of years. And they have made that judgment to date.
  The Interstate Commerce Commission defined that term as a company 
that provided expedited services in handling small, highly valuable 
packages over regular routes and by a regular schedule. The ICC did not 
consider FedEx to be an express company because it did not use regular 
routes and a regular schedule. Instead, the ICC viewed FedEx as a 
``motor carrier.''
  Federal Express argued to numerous courts that it was a so-called 
express company, but no court ever adopted the arguments, and at no 
point did the ICC ever set rates for Federal Express as an express 
company.
  Federal Express claims it is an express company because it is the 
successor to the Railway Express Agency. A Federal Express subsidiary 
bought some of Railway Express' operating certificates in the 1970's, 
but those certificates covered motor carrier operations and not express 
company operations. In any event, Federal Express never operated under 
those certificates. Even if Federal Express were a successor to Railway 
Express' motor carrier operations, it is not a successor to its 
``express operations.''
  In closing, it is important to look beyond the legal technicalities 
and talk about what is really at stake here. Hundreds of truckdrivers 
in the State of Pennsylvania want to join the United Auto Workers and 
bargain with Federal Express over the terms and conditions of their 
employment.

  Federal Express is trying to deny those employees their right to 
organize. That is basically the issue. We are being asked, as an 
amendment to the Federal Aviation Act, to intercede in terms of a labor 
dispute. That is a decision that we have to make. It is only for the 
benefit of one particular company. That is Federal Express. It does not 
have application to any other company. Just one company. Just one 
company. That particular provision was put in here at the end of last 
week, just hours before we are supposed to adjourn. It will have a very 
significant and important impact in terms of that particular company 
over a significant period of time in its ability to compete with other 
companies.
  UPS, for example, certain parts of it deal with the Railroad Act with 
regard to its air carrier provisions. Those provisions that apply to 
trucking deal with the National Labor Relations Act. They have a 
division. They have been able to make that kind of adjustment. But not 
Federal Express. They want to be able to have the legislation of the 
Railway Act to apply to the trucking industry. That has a special 
significance at the present time that will effectively legislate the 
outcome of a particular labor difference.
  We here in the Senate ought to be about passing this FAA bill. This 
FAA bill is enormously important for the airlines, the communities all 
across this country. I heard great eloquence earlier today about the 
importance of this legislation in terms of smaller rural communities. I 
am in strong support of it.
  None of us who support the position which I have outlined, which is 
effectively to strike this language and send the whole FAA 
authorization over to the House--there is every indication they would 
be willing to accept it. There was a relatively close vote over in the 
House of Representatives on this particular item. The House narrowly 
accepted the technical changes, the alleged technical changes, which 
have been included here.
  But I do not know why we should be delaying airline safety for a 
special-interest provision. We ought to pass the airline safety 
provisions and get them down to the White House and get the President 
to sign those provisions, rather than taking the time of the Senate to 
skew the legislation to a particular outcome with regard to a labor

[[Page S11856]]

dispute, and that is what is happening here.
  We are asked about whether we are prepared to hold this legislation 
up. The fact of the matter is this FAA legislation could pass as far as 
I am concerned immediately with unanimous consent this afternoon, right 
now.
  Federal Express is the one that is holding this up. They are the ones 
that are holding this up. We will have a chance to get into that in 
greater detail over these next few days to see whether they are 
justified in that particular provision. I do not believe they are 
justified in it.
  The effective impact, Mr. President, is, as we know, that if it is 
defined that this particular group, those who drive trucks, are going 
to be defined as being air carriers--which is effectively what they 
want to be able to try to do because air carriers have the requirements 
of having a national board or a national group in order to be able to 
bargain collectively, because of the definition of ``air carrier.'' But 
we have not done that with regard to the trucking industry.
  We have not done that with regard to the trucking industry. Now, 
Federal Express wants to have that same application for local trucking 
companies, and the local truck companies say, ``Let us bargain. Let us 
become a union. Let us make a judgment decision whether we favor to 
become a union or not and if we do, let us be able to bargain 
collectively.'' Federal Express says, ``No, you have to have a national 
organization. You truckers that are there in small towns have to be 
able to get the people in the Far West, every community in this country 
that is served by Federal Express, get every local trucking driver and 
get a national organization or a national board.'' That is what Federal 
Express wants to be able to do.
  Now, that is such a convoluted interpretation of what the history and 
the interpretation of either the Railway Act or the National Labor 
Relations Act is as to be stunning. And they want to do it on this 
legislation. They are not even prepared to let it go to the committee 
and have hearings and hear about it. No, they want it on this 
legislation, and they want to do it for this one company, for this one 
company.
  So, Mr. President, we are asked to just roll over. That is the 
effect. This idea that it is just an oversight, as I mentioned earlier, 
I think we ought to not look just at what the proponents are trying to 
suggest, but for the analysis done by the Congressional Research 
Service that has reviewed the history. There will be those that will 
say this is not really affecting workers' rights. Of course it does. It 
affects a particular situation that is taking place today in 
Pennsylvania that is under review in litigation today. Are we prepared 
to say, ``Let the litigation come to end?'' No, no, we are not. We are 
prepared to impose, we are prepared to impose a legislative answer on 
that.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Stevens). The Senator from South Carolina.
  Mr. HOLLINGS. I ask unanimous consent to continue now for 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________