In 2010, the National Mediation Board ("NMB") changed
its long-standing rules governing union representation elections in
the rail and air industries. In particular, the Board abandoned the
requirement that a representative win a majority of votes from the
entire craft or class, allowing a representative to prevail by
obtaining just a simple majority of votes cast. Since that
change—which has recently been upheld in
court—Congress has been debating legislation to reverse
or amend the NMB's controversial new rule.
On February 14, 2012, President Obama signed a new law, the FAA
Modernization and Reform Act of 2012, to authorize long-term
funding for the Federal Aviation Administration. As part of a
compromise between the House and Senate versions of the
legislation, the new law abandons efforts to overturn the NMB's
election rule in its entirety, but nevertheless provides for
several revisions to Title I of the Railway Labor Act
("RLA"), 45 U.S.C. § 151 et seq., that will
alter, at least to some extent, the NMB's rulemaking and
oversight of representation elections in the rail and air
industries. It is unclear, however, whether these changes will have
the sort of dramatic impact forecast in some recent labor union
statements criticizing the compromise legislation.
First, the legislation provides for increased oversight and
transparency in Board rulemaking and operations. For the first
time, it subjects NMB rulemaking to the requirements of the
Administrative Procedures Act ("APA"), 5 U.S.C. §
553. It also requires the U.S. Comptroller General to
"evaluate and audit" the Board's "programs and
expenditures" at least every two years. And it requires the
Comptroller General to undertake an immediate review of "the
processes applied by the Mediation Board to certify or
decertify" labor union representatives, and to make
recommendations to ensure that "the processes are fair and
reasonable for all parties." These requirements may or may not
have any practical significance for the NMB and its conduct of
representation elections. Although it has not been subject to the
APA, the NMB has generally followed APA procedures for rulemaking,
including notice and comment, and so the formal application of the
APA may not make much difference. Nor does it seem that regular
audits of the Board by the Comptroller General should have much, if
any, influence on the substantive rules applied by the NMB. Whether
the "immediate review" by the Comptroller General will
prove to be significant will depend, in large part, on the nature
of the Comptroller General's findings. It would not be
surprising, for example, to see a recommendation that the Board
adopt a clearer rule for decertification of existing
representatives. But we do not expect the Comptroller General to
recommend a return to the previous election rules.
Second, the legislation corrects an oddity in the NMB's run-off
election rules. Under the changes imposed by the NMB in 2010, in
order for a group of employees to remain unrepresented, the
"no union" option must receive more than 50 percent of
the vote. But in circumstances where more than one union was in the
election, the Board aggregated the votes for all unions and would
hold a run-off election even if the "no union" option had
won a plurality of votes. For example, if "no union"
received 49 percent of the vote, Union A received 48 percent, and
Union B received 3 percent, the Board would hold a run-off between
Unions A and B. The new legislation provides that in the event no
option receives a majority, the run-off election shall be between
the options receiving the largest and second-largest number of
votes. This change should ensure that the "no union"
option receives a fair opportunity to prevail in a run-off.
However, run-off elections between a union and a "no
union" option may be relatively rare. Thus, again, it is
unclear how much practical significance this change will
have.
Third, the new law raises the "showing of interest"
threshold for an election among any unrepresented group of
employees from 35 percent to 50 percent. Under the old rules, the
35 percent showing of interest—the threshold
demonstration of potential desire for representation necessary to
order an election—made it nominally easier for unions to
initiate election proceedings among unrepresented groups. So in
theory, the new rule could make it more difficult for unions
seeking to organize an unrepresented workforce. But again, it is
arguable that the change will have little real impact. Because
representation elections can be costly, unions have often sought a
high showing of interest—even when the threshold was only
35 percent—before filing for an election. As the
president of the Transport Workers Union, James C. Little,
acknowledged, "[e]very union organizer knows you need majority
support when you file." Compromise on NMB Election Rules
Draws Lukewarm Reviews From Unions, 14 Daily Lab. Rep. (BNA)
A-4 (Jan. 23, 2012). If unions have already been using 50 percent
or higher as a de facto threshold for a showing of
interest, then the new rule should not make much difference.
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