Someone using the fake name “Brown Bailout” – remember, hired guns who attack UPS never use their real names – recently emailed me the following:

“Chuck: Conservatives are not split on this issue. You are alone in advocating UPS’ legislative attack on their opponent Federal Express. As you know, UPS’ has attempted both in Court and through Regulatory agencies to have their status under labor relations law changed so that their drivers were covered under the Railway Labor Act. The Courts and Regulators have agreed, UPS drivers are rightfully covered under the National Labor Relations Act, as they are structured like a trucking company. Conversely, Courts and Regulators have agreed that Fed Ex Express is an integrated air hub and spoke system that is the perfect model for a company covered under the Railway Labor Act.”

Actually, I’m far from alone in my position on this issue – a fact which will become quite evident in the days and weeks ahead as this issue heats up. In the meantime, let’s counter the rest of the disinformation presented in this claim by Rick Manning….er, I mean “Brown Bailout.”

While it’s true that UPS attempted to get the same equal treatment for its express delivery drivers after launching its own airline in the late 1980s….so what? Why wouldn’t UPS want to get the same sweet deal that its competitor was enjoying? Duh.

But here’s the more important point which Mr. Manning….er, I mean “Brown Bailout”….isn’t telling you.

The deficiency and inequality here is in the law. It requires an act of Congress to fix the law. Regulators can’t do that. And the courts can’t do that….much as Judge Sotomayor may wish otherwise. It’s Congress which still gets to pass and change laws.

And yes, this law needs to be changed because the nature of FedEx’s and UPS’ business has changed dramatically over the last ten years. While FedEx may have started as an airline and UPS may have started as a trucking company, both are now multi-method package delivery companies which use both airplanes and trucks. There is no longer a rationale for treating one company differently under the law than the other….if there ever was.

But the real flaw in Manning’s….er, “Brown Bailout’s”….argument is this notion that FedEx Express “is an integrated air hub and spoke system that is the perfect model for a company covered under the Railway Labor Act.”

Actually, it’s not. The difference is in the words “integrated” and “integral.”

Back in the old days, even before my time, rail transportation was considered a critical part of the nation’s economy. A disruption of the rail service between cities was feared as a grave threat to the economic well-being of the nation, so a separate labor law – the Railway Labor Act – was enacted to avoid crippling labor strikes.

Then, shortly after Al Gore invented the airplane, Congress determined that airlines were as critical to the economic well-being of the nation as were trains, so it extended the Railway Labor Act to airlines.

As such, jobs deemed to be “integral” to the operation of an airline were all placed under the Railway Labor Act. For example, an airplane can’t fly without fuel, so the guys on the ground who gas up the planes are considered by the FAA (Federal Aviation Administration) just as “integral” to running the airline and pilots.

Ditto air traffic controllers, flight personnel, maintenance workers, etc. All are “integral” to running the airline and getting planes from city to city.

What’s at issue here, however, are the approximately 86,000 FedEx Express delivery drivers who take packages from the airport and deliver them on the ground to homes and businesses. These drivers have nothing to do with the airline getting packages from one city to another. These drivers are, in essence, taxicabs for packages and envelopes.

And while they might be “integrated” into FedEx’s package delivery system, they are anything but “integral” to the operation of the airline itself.

It’d be like FedEx creating FedEx Donuts at airports and claiming they were part of “an integrated air hub and spoke system.” But while such donut shops might be “integrated” into the overall FedEx system, that doesn’t mean they are an “integral” part of the airline itself.

You just can’t (or at least shouldn’t be able to) put everything and anything under the Railway Labor Act just because it gives you a competitive advantage in the marketplace. If FedEx Express drivers were “integral” to flying an airplane filled with next-day-air packages from Las Vegas to Baltimore, they’d have a legitimate claim to being placed under the Railway Labor Act.

But they’re not….so they shouldn’t be.