[Congressional Record (Bound Edition), Volume 156 (2010), Part 4]
[Extensions of Remarks]
[Pages 5547-5549]
[From the U.S. Government Publishing Office, www.gpo.gov]




TESTIMONY ON PROPOSED RULE REGARDING UNION ELECTIONS UNDER THE RAILWAY 
                               LABOR ACT

                                 ______
                                 

                          HON. JOHN F. TIERNEY

                            of massachusetts

                    in the house of representatives

                       Wednesday, April 14, 2010

  Mr. TIERNEY. Madam Speaker, I would like to submit the following 
testimony on the National Mediation Board's proposed rule regarding 
union elections under the Railway Labor Act.

Changed Time and Circumstances Justify Amending NMB Representation Vote 
                               Procedures

                          (By Frank N. Wilner)

       By Notice of Proposed Rule Making (NPRM) dated Nov. 3, 
     2009, the National Mediation Board (NMB) proposes to amend 
     its rules interpreting and administering the Railway Labor 
     Act (RLA) ``to provide that, in representation disputes 
     [determinations as to who will be the bargaining agent for 
     airline and railroad and commuter railroad employees], a 
     majority of valid ballots cast will determine the craft or 
     class representatives.''
       The long-standing procedure of the NMB requires a majority 
     of eligible voters (as opposed to those actually voting) to 
     vote affirmatively in favor of representation, meaning a 
     failure or refusal of an eligible voter to participate is the 
     equivalent of a ``no union'' vote.
       The NMB proposes to change its procedure so that, in the 
     future, only ballots of those actually voting will be 
     counted, and each voter will make a choice between 
     representation by a specified union or ``no union.'' This 
     will comport with the long-standing procedures of the 
     National Labor Relations Board, which interprets and 
     administers the National Labor Relations Act.
       The NMB has authority to make this change in policy. As the 
     Supreme Court observed:
       [N]ot only does the statute [RLA] fail to spell out the 
     form of any ballot that might be used but it does not even 
     require selection

[[Page 5548]]

     by ballot. It leaves the details to the broad discretion of 
     the [National Mediation] Board with only the caveat that it 
     `insure' freedom from carrier interference.
       Says the NMB in its NPRM:
       The Board's current policy requires that a majority of 
     eligible voters in the craft or class must cast valid ballots 
     in favor of representation. This policy is based on the 
     Board's original construction of Section 2, Fourth of the 
     RLA, which provides that, `[t]he majority of any craft or 
     class of employees shall have the right to determine who 
     shall be the representative of the craft or class . . .'
       This interpretation was made in the NMB's first annual 
     report in 1935 ``. . . not on the basis of legal opinion and 
     precedents, but on what seemed to the Board best from an 
     administrative point of view.''
       In its November 2009 NPRM, the NMB says:
       . . . under its broad statutory authority, [the board] may 
     also reasonably interpret Section 2, Fourth to allow the 
     Board to certify as collective bargaining representative any 
     organization which receives a majority of votes cast in an 
     election.
       And the NMB has done just that in the past, although 
     infrequently. As the NMB said in its first annual report in 
     1935 that, ``Where, however, the parties to a dispute agreed 
     among themselves that they would be bound by a majority of 
     the votes cast, the Board took the position that it would 
     certify on this basis . . .''
       The Supreme Court has held that while the words of Section 
     2, Fourth ``confer the right of determination upon a majority 
     of those eligible to vote,'' the statute ``is silent as to 
     the manner in which that right shall be exercised.''
       The U.S. Fourth Circuit Court of Appeals held, in 1936:
       The universal rule as to elections of officers and 
     representatives is that a majority of the votes cast elects, 
     and that those not voting are presumed to acquiesce in the 
     choice of the majority who do vote.
       And Chief Justice Morrison Waite held, in 1877:
       All qualified voters who absent themselves from an election 
     duly called are presumed to assent to the expressed will of 
     the majority of those voting, unless the law providing for 
     the election otherwise declares. Any other rule would be 
     productive of the greatest inconvenience and ought not to be 
     adopted, unless the legislative will to that effect is 
     clearly expressed.
       Moreover, courts give the decisions of expert federal 
     agencies great deference; and are, in the words of the 
     Supreme Court (Chevron doctrine), ``reluctant to preclude any 
     federal agency's deliberations of policy because a federal 
     agency, which is controlled by the political branches of the 
     federal government, is constitutionally better suited than a 
     federal court to render policy decisions.''
       The NMB enjoys even greater insulation from second-guessing 
     by the courts. The Supreme Court observed in 1943 that 
     Congress left to the discretionary authority of the NMB the 
     determination of certifying bargaining representatives.
       Perhaps a more pregnant question is why the NMB for so long 
     has permitted its voting procedures in representation 
     elections to be out of sync with the standard for all other 
     democratic elections, where a majority of those voting makes 
     the determination. This is especially relevant where the 
     result of such a procedure is that the failure or refusal of 
     an eligible voter to participate is the equivalent of a ``no 
     union'' vote.
       It makes for sound administrative procedure, however, to 
     provide reasonable justification--rather than willy-nilly 
     desire--for changing a long-standing public policy.
       Determining a reasonable justification logically begins 
     with the NMB's observation, in its November 2009 NPRM, that 
     Section 2, Fourth ``was adopted in a much earlier era, under 
     circumstances that differ markedly from those prevailing 
     today.''

                            The Earlier Era

       Time and circumstances have, indeed, changed since the NMB 
     adopted, during the 1930s, its current policy--not always 
     followed, as will be explained--that requires a majority of 
     eligible voters in the craft or class must cast valid ballots 
     in favor of representation.
       Consider:
       In 1930, there were 156 major (Class I) railroad systems. 
     In 2008, the number of major (Class I) railroad systems was 
     just 7, a 96 percent reduction since 1930.
       In 1930, there were 1.5 million employees in the railroad 
     industry. In 2007, employment in the railroad industry had 
     declined to just 236,000, an 84 percent reduction since 1930.
       In 1930, there were 249,000 miles of railroad line in the 
     United States. In 2007, the miles of railroad line in the 
     United States had declined to just 94,440, a 62 percent 
     reduction since 1930.
       While it is instructive that there has been a significant 
     decline in the number of major railroads, railroad employees 
     and miles of railroad trackage, those considerations alone 
     are not enough to justify a change in the NMB's long-standing 
     voting procedures for representation elections, except to 
     demonstrate that the environment in which the NMB made its 
     initial determination to require a majority of eligible 
     voters was much different than today's environment.
       However--and this is crucial--as the NMB conducted 
     representation elections during the 1930s, the Interstate 
     Commerce Commission was wrestling with a congressional 
     directive in the Transportation Act, 1920, to formulate a 
     plan of merging the nation's railroads into just 19 systems.
       Thus, lurking in the shadows of each representation 
     election during the 1930s was, ``What is the mood of 
     employees on the other railroads that might become a merger 
     partner of the railroad on which employees were voting for 
     representation?'' This concern likely steered the NMB toward 
     seeking a demonstration in each representation election that 
     the outcome was a result of votes from a majority of those 
     eligible to vote.
       There are more important facts of changed circumstances:


                             Company Unions

       Among amendments to the Railway Labor Act in 1934 was one 
     outlawing company unions--a change intended better to protect 
     employee rights to organize. Company unions were under the 
     control of carrier officers, with the carriers paying the 
     wages of the employee representatives.
       The House Committee on Interstate and Foreign Commerce 
     observed at the time (1934) that ``a prolific source of 
     dispute'' between management and employees was ``the denial 
     by railway management of the authority of representatives 
     chosen by their employees.''
       So substantial was this conflict that then-NMB Chairman 
     William M. Leiserson subsequently testified that, were there 
     a strike occasioned by a dispute over wages and hours, ``we 
     usually find we can settle those by arbitration or otherwise 
     . . . But if the issues involved were discrimination or 
     discharge of men because they had joined the organization, or 
     the question would be the right of the organization to 
     represent them, we could not have settled those strikes.''
       Between 1933 (the year prior to an RLA amendment that 
     outlawed company unions) and 1935, some 550 company unions on 
     77 Class I railroads were replaced by independent national 
     unions. Indeed, two-thirds of the work of the NMB from 1934 
     until the start of World War II involved investigations and 
     purging of company unions.
       This was no simple task, as railroads were not anxious to 
     cede negotiating power to an independent labor union. The New 
     York Times observed as early as 1922.
       When the railroads were handed back to their owners by the 
     Government (following federal takeover during World War I) 
     they were working under national agreements made with union 
     representatives. That was a yoke from which the roads 
     constantly tried to escape.
       Moreover, employees, fortunate to be working during the 
     Great Depression were frightened--if not terrified--over the 
     prospect of angering management by not supporting a company 
     union and, as a result, losing their jobs.
       As the U.S. Fourth Circuit Court of Appeals observed in 
     1936.
       . . . any sort of influence exerted by an employer upon an 
     employee, dependent upon his employment for means of 
     livelihood, may very easily become undue, in that it will 
     coerce the employee's will in favor of what the employer 
     desires against his better judgment as to what is really in 
     the best interest of himself and his fellow employees.
       Although there is no accessible source to determine the 
     thinking of NMB officials at the time, it is logical to 
     conclude that requiring a majority of those eligible to vote 
     (as opposed to a majority of those voting) more conclusively 
     established on the part of the eligible employees a desire to 
     be represented by a labor union independent of company 
     influence.
       This conclusion is given validity by a comment of the 
     nation's Federal Coordinator of Transportation (1933-1936), 
     Joseph Eastman, who proposed that in organizing employee 
     unions, ``a majority shall speak for all.''


                         Racial Discrimination

       There was, during the 1930s, a national shame of racial 
     discrimination.
       It was not until 1955 that the Interstate Commerce 
     Commission, taking instruction from Brown v. Board of 
     Education of Topeka, Kansas, ruled that the very practice of 
     segregation in interstate commerce was a violation of the 
     Interstate Commerce Act.
       For sure, discrimination against African-Americans existed 
     also in railroad employment practices.
       On Atlanta Terminal Co., for example, there was an effort 
     to separate, for representation, Caucasian and African-
     American employees. Management said it wanted a demonstration 
     that the Brotherhood of Railroad and Steamship Employees 
     represented the ``white employees.'' The NMB ordered that one 
     ballot be issued ``among all the employees involved in the 
     dispute regardless of color to afford all of them an equal 
     opportunity to indicate their choice of representatives.''
       As another example, the Brotherhood of Locomotive Firemen 
     and Enginemen had an agreement with 10 railroads in the South 
     to restrict hiring and promotion of African-Americans, and 
     the BLF&E, according to President Roosevelt's Committee on 
     Fair

[[Page 5549]]

     Employment Practices, ``refuses to represent them with 
     respect to their grievances when such grievances are in 
     conflict with the interests of junior white firemen.''
       The national shame of racial discrimination surely created 
     a unique challenge for the NMB--a challenge best met by 
     requiring that representation elections be determined by a 
     majority of those eligible rather than of those voting to 
     guard against racial discrimination in the voting process.


                 Conflict among labor unions and crafts

       Also unique to the period of the 1930s was the large number 
     of competing labor organizations and crafts. Where 
     representation of craft and class today is generally 
     established in bright line fashion on the larger railroads 
     (which employ almost 90 percent of rail workers), that was 
     not the case during the 1930s.
       In 1935, on New York, Chicago & St. Louis Railroad, a 
     dispute arose between the Brotherhood of Railroad Trainmen 
     (BRT) and the Switchmen's Union of North America (SUNA) 
     regarding representation of switchmen. The BRT claimed 
     representation of switchmen systemwide; and the SUNA sought a 
     separate vote of switchmen in Buffalo and those in Cleveland, 
     rather than systemwide.
       In 1937, on Indiana Harbor Belt Railroad, a dispute arose 
     between the Brotherhood of Railroad Trainmen and the Order of 
     Railroad Telegraphers regarding representation of operators, 
     towermen, levermen, train directors and operator-
     switchtenders.
       In 1935, the Brotherhood of Railroad Trainmen complained 
     that the NMB had denied certain brakemen a representation 
     ballot in a dispute involving road conductors.
       The NMB observed in its first annual report in 1935:
       [Representation disputes] arose mainly because of 
     overlapping jurisdiction . . . the antagonism engendered by 
     the contests has developed a tendency for employees who are 
     members of one organization to challenge the representation 
     of the other organization. . . .
       The NMB since has made clear that Section 2, Ninth of the 
     RLA requires a systemwide election by craft or class; but, in 
     those early years, the NMB, in decisions of first impression, 
     surely recognized that to assure a perception of equity that 
     the vote results had to be based on a majority those eligible 
     to vote--that the NMB had to get it right.
       Also, technology has eliminated what were some 291 crafts 
     or classes in 1935, and merger among unions reduced what had 
     been some 21 separate craft unions in 1935 to many fewer 
     today.
       Also notable is that it was not until 1954 that the AFL 
     amended its constitution to prohibit raiding by AFL member 
     unions of other AFL-member unions (now memorialized by 
     Article 20 of the AFL-CIO constitution).


                      Communication and education

       Times and circumstances also have changed with regard to 
     education and communication.
       In 1930, only 30 percent of Americans were graduated from 
     high school, while, today, the number exceeds 70 percent. 
     During the 1930s, representation elections were carried out 
     by mail ballot, with each eligible voter being sent a ballot 
     along with an instruction sheet explaining the procedures for 
     a secret ballot election. A significant number of blue collar 
     workers during the 1930s may well have been unable to read at 
     a level sufficient to ensure they understood the ballot 
     procedures, much less the subject matter of the election.
       It was not until 1943 that a single AT&T operator could 
     complete a long-distance telephone call; previously, as many 
     as five operators and 23 minutes were required to connect a 
     telephone in San Francisco with one in New York. As late as 
     1950, the cost of a five-minute long-distance telephone call 
     between New York and Los Angeles cost $3.70, which is 
     equivalent to $32.73 in 2009. This affected the ability of 
     independent unions--and union supporters--to communicate with 
     railroad employees over a wide geographic area.
       Today, railroad employees have near universal access to 
     hard-wired and wireless telephones, as well as e-mail, with 
     the costs of communicating relatively insignificant. In the 
     words of former NMB Chairperson Maggie Jacobsen, the Internet 
     has become ``a 24-hour, seven-day-a-week union meeting.'' 
     Indeed, the U.S. Census Bureau reports that 74 percent of 
     Americans 18 years and older in the workforce use the 
     Internet. As airlines and railroads are among the most 
     computerized industries in America, the percentage of airline 
     and railroad employees who are Internet savvy is likely 
     higher than 74 percent.
       During the 1930s, there was a communications challenge--in 
     employee reading comprehension as well as the ability to 
     communicate by electronic means (including telephone). That 
     communications challenge could well have affected the ability 
     of voting-eligible employees to be aware of the subject 
     matter, while lower standards of reading comprehension 
     impeded the ability of employees to understand the subject 
     matter, mechanics and rules of a representation election.
       By requiring that a majority of eligible employees vote in 
     favor of representation, the procedure better assured that 
     the majority would be made aware of the election and for what 
     they were voting. The matter of employee reading 
     comprehension is far less a problem today, and there no 
     longer exists impediments to dissemination of information by 
     electronic means (including voice).


                         Conflicts in ideology

       Not readily recognized today is that there was great social 
     upheaval during the period of the Great Depression.
       Communism was viewed by many workers at that time as 
     superior to capitalism, and communists were active agents for 
     change. In 1938, for example, communist agitator William Z. 
     Foster advocated worker militancy.
       The president of the Switchmen's Union of North America 
     responded that communist efforts are intended ``to create 
     disharmony, discord and disunity among the members of 
     standard railroad labor organizations.''
       Here, again, was reason for the NMB to certify 
     representation votes on the basis of a majority of those 
     eligible to vote rather than to permit, perhaps, a handful of 
     agitators to determine representation votes for a radical 
     organization by intimidating a majority of workers from 
     casting ballots.

                               Conclusion

       The National Mediation Board proposes to bring its 75-year-
     old representation election voting procedures in sync with 
     those of the National Labor Relations Board, and what the 
     federal courts term, the ``universal rule as to elections of 
     officers and representatives.''
       The change would provide that the outcome of an election is 
     determined by a majority of those voting, scrapping the 
     archaic majority-of-those-eligible rule, which arbitrarily 
     assumes that those not voting be counted as a ``no vote.''
       Circumstances have changed since the NMB instituted such 
     voting procedures in 1934. The reasons then included:
       An effort by the NMB to demonstrate to employers that their 
     employees overwhelmingly preferred an independent labor union 
     to a company union controlled and financed by management.
       An effort to guard against racial discrimination in an 
     election and better assure access to ballots by African-
     American workers.
       An effort to resolve conflict among some 21 separate 
     independent labor unions seeking to represent some 291 
     separate crafts or classes at the time--to ``get it right'' 
     by determining the desires of a majority of those eligible to 
     vote.
       An effort to combat substantially lower levels of education 
     and reading comprehension among workers. By requiring a 
     positive vote among a majority of those eligible, it was 
     better assured that efforts would be made by those asking for 
     the election to reach and explain voting procedures to those 
     eligible.
       An effort to combat technological difficulties in 
     communicating with potential voters. Again, requiring a 
     positive vote among a majority of those eligible better 
     assured that efforts would be made to reach out and 
     communicate with those eligible.
       An effort to combat Communist agitators, who were using 
     intimidation and other tactics to encourage worker militancy 
     and workplace discord.
       Today:
       There no longer are company unions or the threat of company 
     unions.
       Racial discrimination has been outlawed, and procedures are 
     in place to root out and prosecute racial discrimination in 
     the workplace.
       Conflicts among RLA-covered labor unions are largely non-
     existent today, and the number of crafts and classes of 
     workers has been reduced substantially. Moreover, by 
     including a ``no union'' choice on the ballot provides 
     eligible employees opportunity to cast a ``no vote.''
       Levels of education, especially among railroad and airline 
     workers, have been dramatically improved, with most using 
     computers in their daily work routines.
       Barriers to communication among workers, as well as between 
     workers and their employers and union organizers have been 
     almost entirely eliminated with near universal access to 
     telephone and e-mail. Also, today's railroad and airline 
     workers have substantially higher levels of education than 
     they did during the 1930s.
       Because of changes in circumstance, 75-year-old NMB voting 
     procedures are ripe for change to bring them in sync with the 
     universal rule as to elections of officers and 
     representatives, which is a majority of those casting 
     ballots.

                          ____________________