The National Mediation Board (NMB) has issued its final rule (pdf) implementing the changes to NMB procedures regarding run-off elections, “showing of interest” thresholds for representation elections, and the agency’s rulemaking authority that were included in the FAA Modernization and Reform Act of 2012 (FAA Act), signed into law on February 14, 2012. Notably, the FAA Act amended the Railway Labor Act (RLA) by: (a) specifying that the NMB must provide an opportunity for public hearing regarding any significant rules; (b) requiring that in any runoff election for which there are three or more options (including the option of “no union”) on the ballot and none receives a majority of the valid votes cast, a second election would be held between the two options receiving the most votes; (c) raising the showing of interest threshold for elections to not less than 50% (up from 35%) of the employees in the craft or class; and (d) imposing certain review and auditing requirements on the NMB’s programs and expenditures.

According to the NMB, the “overwhelming majority” of comments made to the agency after the release of the proposed rule addressed the question of whether the new showing of interest provision – which states that a showing of interest of not less than 50 percent is required to support an “application requesting that an organization or individual be certified as the representative of any craft or class of employees” – should apply to mergers. The NMB’s Representation Manual (“Manual”) defines a merger as “a consolidation, merger, purchase, lease, operating contract, acquisition of control, or similar transaction of two or more business entity.” The NMB has the authority, under Section 2, Ninth of the RLA, to resolve representation disputes arising from a merger. In the preamble to the final rule, the NMB concludes that the 50% threshold does, indeed, apply to merger situations, contrary to the position several unions and Democratic Senators urged the NMB to adopt:

Having carefully reviewed and considered the comments, the Board believes . . . Congress intended to apply the same showing of interest to requirement in all representations disputes under the Act. Thus, any application seeking the Board’s investigation of a representation dispute under Section 2, Ninth must be supported by a showing of interest of not less than 50 percent. . . the Board believes that this includes applications filed as part of a single carrier determination in mergers.

Accordingly, the NMB stated that, because Congress has removed the Board’s discretion with regards to “showing of interest” requirements in merger procedures, the existing merger procedures in the Manual will be amended to reflect that change.

The NMB similarly applies the 50% threshold to intervenors: “Congress has stated that an application must be supported by a 50 percent showing of interest and the Board sees no reason to make a distinction between initial applicants and intervenors at this point.”

The agency points out that the rule does not prevent employees from signing more than one authorization card. The NMB explains:

In a merger situation, a union could collect signatures from employees who are represented by another union. If 50 percent of the craft or class is either already represented by that union or willing to sign an authorization card for that union, the showing of interest requirement will be satisfied. In a merger situation, there is no reason to hold the union who files the first application to a higher standard than unions who file subsequent applications.

The final rule is effective upon its publication in the Federal Register on December 21, 2012.

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