NMB Issues Proposed Rule Revising Representation Dispute Procedures

The National Mediation Board (NMB) has issued a proposed rule that would implement the changes to existing representation dispute and election procedures in the railway and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Signed into law on February 14, 2012, the FAA Act included significant restrictions over airline and railway union organizing. Specifically, the 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. To this end, the proposed rule published in the May 15, 2012 edition of the Federal Register would make changes to existing NMB rules regarding run-off elections, showing of interest for representation elections, and the NMB’s rulemaking proceedings to conform to the FAA Act provisions.

With respect to run-off elections, the proposed amendments to the existing regulations require that the agency no longer aggregate votes for representation and that any run-off election will be between the two ballot options – which could include a “no union” option – that receive the most votes. The amended rule also would require the NMB to arrange for a second election when no ballot option receives a majority of the ballots cast instead of requiring a participant to initiate a run-off election with a written request.

The amended language to the “showing of interest” provisions provide that a showing of interest of not less than 50% is required to support an “application requesting that an organization or individual be certified as the representative of any craft or class of employees.” The proposal notes that the changes make no mention of mergers. Under the NMB’s current merger policy, as stated in its representation manual, “[i]ncumbent organizations or individuals on the affected carrier(s) must submit evidence of representation or a showing of interest from at least thirty-five (35) percent of the employees in the craft or class.” Because the FAA Act changed the showing of interest threshold to 50%, the NMB is soliciting input “regarding the effect of the amendments on the Board’s policies and practices with respect to representation disputes in mergers.”

Comments on this proposal must be received by July 16, 2012 and identified by the agency name (NMB) and docket number (C-7034). Comments may be submitted electronically through the federal eRulemaking portal, through the agency’s web site, via email to: legal@nmb.gov (include docket number in subject line), or by fax to: (202) 692-5085. Alternatively, written comments may be sent by mail or hand delivery to: National Mediation Board, 1301 K Street, N.W., Ste. 250E, Washington, DC, 20005. In addition, the agency plans to hold a public hearing on these changes during the comment period.

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