Last month, Representative James L. Oberstar (D-Minn.) inserted an amendment into The Federal Aviation Authority Reauthorization Act of 2009 calling for “express carrier employee protection”-shorthand for having FedEx Express employees fall under the National Labor Relations Act (NLRA) instead of the Railway Labor Act (RLA).  In a nutshell, it’s easier for employees to unionize under NLRA (which covers UPS) than under RLA, which is a big reason why FedEx is fighting back.

FedEx argues that it and UPS are fundamentally different companies.  In a press release issued this week, FedEx states that “UPS – the largest political giver to Congress over the decades – is a trucking company, shipping 85 percent of its parcels on the ground.  FedEx Express is an airline, flying 85 percent of its packages in the air.”  FedEx also launched a website-BrownBailout.com-as it campaigns against this amendment.  There’s a funny video on the site (and also on YouTube) that mimics UPS’ “man at the whiteboard” ad campaign to make their point.

Understandably, UPS is not keeping quiet.  In a press release issued this week, the company stated the following (along with outlining ten facts):

“UPS supports the equal application of labor laws to employees who perform the same tasks and job functions at different companies. As a result of FedEx Express’s origin as an airline, the company’s drivers and other non-airline specific employees are governed by the Railway Labor Act (RLA). By comparison, similarly situated employees at UPS and all other express delivery companies are governed by the National Labor Relations Act (NLRA).  The U.S. Congress is considering legislation that aims to level the playing field in the express delivery industry by placing FedEx Express’ drivers and other non-airline specific employees under the appropriate labor statute – the NLRA.   UPS supports the Express Carrier Employee Fairness Amendment in the FAA Reauthorization Act (Section 806 of H.R. 915), which clarifies the application of the two labor laws. The amendment will appropriately provide equal treatment under labor law to employees performing the same functions at different companies, and will eliminate the special treatment currently given to FedEx Express.  UPS believes the marketplace, not the unequal application of labor laws, should determine success.”

FedEx calls the amendment a bailout for UPS, while UPS calls the status quo an “earmark” for FedEx. So, which is it?

It all depends, I suppose, on how you define these companies.  Is FedEx an airline with ground operations to support it, and UPS a trucking company with airplanes to support it?  Or are their planes and trucks so interconnected that the terms “airline” and “trucking company” no longer apply to these companies?

(A quick aside: Why was this amendment slipped into the FAA Reauthorization Act?  In my view, it should be introduced before Congress as a standalone measure, so that supporters of both sides can debate the issues and vote on it).

There is one thing that both UPS and FedEx agree on: That the marketplace, not the government or labor laws, should determine success.  Unfortunately, with each industry bailout (and perhaps state bailout) and legislative action taken by Congress (such as “Buy American“), we keep moving away from this ideal.