[Federal Register Volume 74, Number 211 (Tuesday, November 3, 2009)]
[Proposed Rules]
[Pages 56750-56754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26437]


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NATIONAL MEDIATION BOARD

29 CFR Parts 1202 and 1206

[Docket No. C-6964]
RIN 3140-ZA00


Representation Election Procedure

AGENCY: National Mediation Board.

ACTION: Proposed rule with request for comments.

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SUMMARY: As part of its ongoing efforts to further the statutory goals 
of the Railway Labor Act, the National Mediation Board (NMB or Board) 
is proposing to amend its Railway Labor Act rules to provide that, in 
representation disputes, a majority of valid ballots cast will 
determine the craft or class representative. The NMB believes that this 
change to its election procedures will provide a more reliable measure/
indicator of employee sentiment in representation disputes and provide 
employees with clear choices in representation matters.

DATES: NMB must receive comments on or before January 4, 2010.

ADDRESSES: You may submit comments identified by Docket Number C-6964 
by any of the following methods:

[[Page 56751]]

     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Agency Web Site: http://www.nmb.gov. Follow the 
instructions for submitting comments.
     E-mail: [email protected]. Include docket number in the 
subject line of the message.
     Fax: (202) 692-5085.
     Mail and Hand Delivery: National Mediation Board, 1301 K 
Street, NW., Ste. 250E, Washington, DC 20005.
    Instructions: All submissions received must include the agency name 
and docket number. All comments received will be posted without change 
to http:[sol][sol]www.nmb.gov, including any personal information 
provided.
    Docket: For access to the docket or to read background documents or 
comments received, go to http:[sol][sol]www.nmb.gov.

FOR FURTHER INFORMATION CONTACT: Mary Johnson, General Counsel, 
National Mediation Board, 202-692-5050, [email protected].

SUPPLEMENTARY INFORMATION: Under Section 2, Ninth of the Railway Labor 
Act (RLA or Act), 45 U.S.C. 152, Ninth, it is the NMB's duty to 
investigate representation disputes ``among a carrier's employees as to 
who are the representatives of such employees * * * and to certify to 
both parties, in writing * * * the name or names of the individuals or 
organizations that have been designated and authorized to represent the 
employees involved in the dispute, and certify the same to the 
carrier.'' Upon receipt of the Board's certification, the carrier is 
obligated to treat with the certified organization as the employee's 
bargaining representative.
    The RLA authorizes the Board to hold a secret ballot election or 
employ ``any other appropriate method'' to ascertain the identities of 
duly designated employee representatives. 42 U.S.C. 152, Ninth. As the 
Supreme Court has noted, ``not only does the statute fail to spell out 
the form of any ballot that might be used but it does not even require 
selection by ballot. It leaves the details to the broad discretion of 
the Board with only the caveat that it `insure' freedom from carrier 
interference.'' Bhd. of Ry. and S.S. Clerks v. Assn. for the Benefit of 
Non-Contract Employees, 380 U.S. 650, 668-669 (1965).
    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 * * *.'' 45 U.S.C. 152, Fourth. This ``interpretation was made, 
however, not on the basis of legal opinion and precedents, but on what 
seemed to the Board best from an administration point of view.'' 1 NMB 
Ann. Rep. 19 (1942).
    The Board has since maintained that policy, but believes that under 
its broad statutory authority, it 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. In Virginian Railways Co. v. Sys. Fed'n, 300 U.S. 515, 
560 (1937), the Court stated that the words of Section 2, Fourth, 
``confer the right of determination upon a majority of those eligible 
to vote, but is silent as to the manner in which that right shall be 
exercised.'' Congress left it to the Board to determine the manner in 
an exercise of its discretion and, as Attorney General Tom C. Clark 
noted in his 1947 opinion on this issue:

    Under Section 2, Fourth, of the Railway Labor Act, the National 
Mediation Board has the power to certify as collective bargaining 
representative any organization which receives a majority of votes 
cast at an election despite the fact that less than a majority of 
those eligible to vote participated in the election.

Majority Vote under the Railway Labor Act, 40 Op. Att'y Gen. 541 
(1947). In reaching this conclusion, the Attorney General cited not 
only the plain language of the Act and the Court's decision in 
Virginian Railways, but also the legislative history of Section 2, 
Fourth. The report of the Senate Committee on Interstate Commerce 
stated specifically that this section provides ``that the choice of 
representative of any craft shall be determined by a majority of the 
employees voting on the question.'' Id. at 542 (quoting Sen. Rep. 1065, 
73d Cong. 2d Sess., p. 2). The Attorney General noted that the language 
of Section 2, Fourth appears to have been taken from a rule of the 
United States Railroad Board (Railroad Board) acting under the labor 
provisions of the Transportation Act of 1920 and that the Railroad 
Board had held that a majority of ballots cast in an election were 
sufficient to designate a representative. Id. at 541 n. 1. The Attorney 
General further noted the similarity between the language of Section 2, 
Fourth and Section 9(a) of the National Labor Relations Act (NLRA), 29 
U.S.C. 159(a), which provides that, ``[r]epresentatives designated or 
selected for the purposes of collective bargaining by the majority of 
the employees in a unit appropriate for such purposes, shall be the 
exclusive representatives of all the employees in such unit for the 
purposes of collective bargaining * * *.'' Under the NLRA, collective 
bargaining representatives are certified on the basis of the majority 
of ballots cast. The Attorney General also cited the statement in the 
House Committee report on the bill that became the NLRA that ``the bill 
is merely an amplification and further clarification of the principles 
enacted into law by the Railway Labor Act and by Section 7(a) of the 
National Industrial Recovery Act, with the addition of enforcement 
machinery of familiar pattern.'' 40 Op. Att'y Gen. at 543 n.3 (quoting 
H. Rep. 1147, 74th Cong., 1st Sess., p. 3).
    Finally, Attorney General Clark further observed the following:

    [W]hen the Congress desires that an election shall be determined 
by a majority of those eligible to vote rather than by a majority of 
those voting, the Congress knows well how to phrase such a 
requirement. For example, in Section 8(a)(3)(ii) of the National 
Labor Relations Act, as amended by the Labor Management Relations 
Act, the Congress has required that before any union shop agreement 
may be entered into, the National Labor Relations Board must certify 
`that at least a majority of the employees eligible to vote in such 
election have voted to authorize such labor organization to make 
such an agreement.'

Id. at 544. (emphasis in original).
    Since 1935, the Board has reexamined its policy of certifying a 
representative based on a majority of eligible voters on several 
occasions, most recently in 2008. Delta Air Lines, Inc., 35 NMB 129 
(2008). In each instance, the Board relied on an assertion that the 
current election policy, which as noted above was adopted for 
administrative rather than legal or factual reasons, maintains stable 
labor relations and fulfills the obligations under Section 2, Ninth. 
With regard to the stability in labor relations under the RLA, the 
Board believes that this stability which is often associated with the 
low incidence of strikes is more directly related to the Board's 
mediation function than to its representation function. The Board 
exercises a unique power under the RLA: The ability to determine the 
duration of mediation and thus the timing of a release from mediation 
and the potential opportunity for either side to engage in self-help. 
Because of the mandatory nature of the mediation process under the RLA, 
the parties are pressured to compromise their positions even though 
each may believe that its

[[Page 56752]]

original position was reasonable. The Supreme Court has recognized that 
the Board's mediation process is designed to be ``almost interminable'' 
so that the parties are moved to compromise and settlement without 
strikes or other economic disruptions. Detroit & Toledo Shore Line R. 
R. v. United Transp. Union, 396 U.S. 142, 149 (1969).
    With regard to its obligations under Section 2, Ninth, the Board 
notes that its current construction of Section 2, Fourth was adopted in 
a much earlier era, under circumstances that differ markedly from those 
prevailing today. During the 1920s and 1930s widespread company 
unionism undermined collective bargaining and incited labor unrest. See 
Pennsylvania R.R. v. Railroad Labor Bd., 261 U.S. 72 (1923).\1\ Between 
1933 and 1935 some 550 company unions on 77 Class I railroads were 
replaced by national unions. Benjamin Aaron, et al., The Railway Labor 
Act at Fifty: Collective Bargaining in the Railroad and Airline 
Industries, 26 (Charles M. Rhemus ed., 1977) (citing Leonard A. Lecht, 
Experience Under Railway Labor Legislation 155 (New York 1955)). Labor 
relations in the air and rail industries have progressed since the 
early days of the RLA but many of the Board's election procedures have 
not.
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    \1\ This case involved the refusal by the Pennsylvania Railroad 
to confer with the trade union which represented a majority of its 
employees and instead proceeded to deal with a company union which 
it had fostered and recognized as the workers' representatives. The 
Board's precursor, the Railway Labor Board, ordered a new election 
to determine the workers' choice of representative and the Railroad 
refused to comply with this order. The Union sought an injunction to 
keep the Railroad from enforcing its agreements with the company 
union, but the injunction was denied. The Court upheld the denial on 
the ground that the labor provisions of the Transportation Act 
expressed only Congress' recommendations regarding collective 
bargaining rights of railway employees. The RLA was enacted 
following widespread dissatisfaction with the Transportation Act and 
the lack of prohibitions on employer control of employees' 
organization. Effect of the Railway Labor Act of 1926 Upon Company 
Unions, 42 Harv. L. Rev. 108 (1928). The need for complete freedom 
from carrier involvement in employees' selection of a collective 
bargaining representative is expressed in the General Purposes 
Clause of the RLA which states that one of the purposes of the Act 
is ``to provide for the complete independence of carriers and of 
employees in the matter of self organization.'' 45 U.S.C 151a.
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    Under the existing election procedure, there is no opportunity for 
an employee to vote ``no'' or cast a ballot against representation. 
Abstaining from voting, for whatever reason, is counted by the Board as 
a vote against representation. Thus, under current election procedures, 
the Board determines that the failure or refusal of an eligible voter 
to participate in an NMB-conducted election is the functional 
equivalent of a ``no union'' vote. In these instances, the Board's 
current election procedure appears to be at odds with the modern 
participatory workplace philosophy that has evolved in the air and rail 
industries and the basic principles of democratic elections. Air and 
rail labor and management now go to great lengths to encourage employee 
participation in workplace matters. See, e.g., Bucking Trend, Airline 
Keeps Repairs In-House, NPR, All Things Considered, October 20, 2009, 
http://www.npr.org/templates/ transcript/
transcript.php?storyid=113971588; A New Approach for Airlines, Wall St. 
J., May 12, 2008, at R3. http://online.wsj.com/article/SB121026578961977661.html; The Proposed Delta/Northwest Airlines 
Merger: The Impact on Workers: Hearing Before the House Education and 
Labor Subcommittee on Health, Employment, Labor, and Pensions 
(testimony of Robert Kight, Vice President, Compensation and Benefits 
Delta Air Lines) 110th Cong. 5-6 (2008). http://republicans.edlabor.house.gov/Media/File/Hearings/help/73008/Kight.pdf.
    The proposed change, if adopted, should bring the Board's election 
process in line with industry developments and discourage employee non-
participation by giving every employee a chance to affirmatively 
express their preference for or against representation.
    Further, to the Board's knowledge, few if any democratic elections 
are conducted in this manner. In our society, free choice is expressed 
on the basis of a majority of valid votes cast in an election. In 
Virginian Railway, the Court stated that, ``[e]lection laws providing 
for approval of a proposal by a specified majority of an electorate 
have been generally construed as requiring only the consent of the 
specified majority of those participating in the election. Those who do 
not participate `are presumed to assent to the expressed will of the 
majority of those voting.' '' 300 U.S. at 560 (internal citations 
omitted).
    There are many reasons individuals do not vote in elections. 
Nonvoting can be a conscious choice and assigning those who choose not 
to vote a role in determining the outcome of an election is a type of 
compulsory voting, not practiced in our democratic system. A system of 
compulsory voting or assigning a position to those who choose not to 
vote denies individuals the right to abstain from participating in an 
election, a right available in other democratic elections in this 
country. In political elections, those who do not vote acquiesce to the 
will of those who choose to participate. To allow a contrary policy 
could allow those lacking the interest or will to vote to supersede the 
wishes of those who do take the time and trouble to cast ballots.
    The Board's primary duty in representation disputes is to determine 
the clear, un-coerced choice of the affected employees and the Board 
believes that this duty can be better fulfilled by modifying its 
election procedures to rely on the choice of the majority of valid 
ballots cast in the election. This process will ensure that each 
employee vote, whether for or against representation, will be regarded 
with equal weight. The Board will no longer substitute its opinion for 
that of the employee and register the lack of a vote as a ``no'' vote.
    If the proposed regulatory change is adopted, the Board will 
specify that in secret ballot elections conducted by the Board, the 
craft or class representative will be determined by a majority of valid 
ballots cast. The proposed change will also provide employees with an 
opportunity to vote ``no'' or against union representation.
    The Board's proposed change will not affect the showing of interest 
requirements as set forth in 29 CFR 1206.2. For the sake of clarity, 29 
CFR 1202.4 as revised is cited in full.
    Chairman Dougherty dissented from the action of the Board majority 
in approving this proposed rule. Her reasons for dissenting are set 
forth below.
    I dissent from the proposed rulemaking for several reasons. Our 
current election rules have a long history and are supported by 
important policy reasons. I do not believe there is any evidence or 
legal analysis currently before the Board to support making the change 
proposed by my colleagues. Serious questions exist about the Board's 
statutory authority to make the rule change and its ability to 
articulate a rationale for change that complies with the Administrative 
Procedure Act (APA). Perhaps most importantly, the proposed rule makes 
no reference to other requests the Board has received to consider 
decertification and Excelsior list issues. For these and the following 
reasons, I believe it is, at a minimum, premature to propose a rule 
change of this magnitude, and a more prudent course of action would be 
for the Board not to prejudge this issue, but rather to give all 
interested parties an opportunity to comment on the request made by the 
Transportation Trades Division of the AFL-CIO (TTD), together with 
subsequent requests regarding

[[Page 56753]]

decertification and other issues, before making any proposals.
    The rule in question has been applied consistently for 75 years--
including by Boards appointed by Presidents Roosevelt, Truman, Johnson, 
Carter, and Clinton. Making this change would be an unprecedented event 
in the history of the NMB, which has always followed a policy of making 
major rule changes with consensus and only when required by statutory 
amendments or essential to reduce administrative burdens on the agency. 
Chamber of Commerce of the United States, 14 NMB 347, 356 (1987). 
Regardless of the composition of the Board or the inhabitant of the 
White House, this independent agency has never been in the business of 
making controversial, one-sided rule changes at the behest of only 
labor or management.
    No one, including my colleagues, has suggested that the Railway 
Labor Act (RLA) mandates the change in the proposed rule or that the 
rule change is necessary to reduce administrative burdens on the 
Agency. In fact, a serious question exists as to whether the NMB even 
has the statutory authority to make this reversal. A Board appointed by 
President Carter unanimously decided that the Board is of the view that 
it does not have the authority to administratively change the form of 
the ballot used in representation disputes and that such a change, if 
appropriate, should be made by Congress.\2\
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    \2\ In addition, the only court ever to rule specifically on the 
question of whether the Board has the authority to certify a 
representative where less than a majority of the eligible voters 
participates in an election found that it did not. Virginian 
Railways Co. v. Sys. Fed'n, 11 F. Supp. 621, 625 (E.D. Va 1935). 
That ruling was not appealed and no court has ever specifically held 
that the Board has this authority.
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    I also believe that my colleagues have not articulated a rationale 
for this rule change as required by the APA. With this notice of 
proposed rulemaking, my colleagues seek to radically depart from long-
standing, consistently applied administrative practices. Under the APA, 
a change in such a long-standing policy must be supported by a strong 
rationale. While administrative agencies are not bound by prior policy, 
there is a duty to explain adequately ``departures from agency norms.'' 
Pre-Fab Transit Co. v. Interstate Commerce Comm'n, 595 F.2d 384, 387 
(7th Cir. 1979). A change in the majority voting rule must be based on 
more than the preferences of the current Board. ``An agency's view of 
what is in the public interest may change either with or without a 
change in circumstances. But an agency changing its course must supply 
a reasoned analysis * * * [I]f it wishes to depart from its prior 
policies, it must explain the reasons for its departure.'' Panhandle E. 
Pipeline Co. v. Fed. Energy Regulatory Comm'n, 196 F.3d 1273, 1275 
(D.C. Cir. 1999) (internal citations omitted). ``Conclusory 
statements'' and ``conjecture cannot substitute for a reasoned 
explanation'' for such a change in precedent. Graphic Comm. Int'l Union 
v. Salem-Gravure Div. of World Color Press, Inc., 843 F.2d 1490, 1494 
(DC Cir.)
    There is nothing in the proposed rule to support changing this 
long-standing Board tradition. The Board has repeatedly articulated 
important policy reasons for our current majority voting rule--
including our duty to maintain stability in the air and rail 
industries. 16 NMB Ann. Rep. 20 (1950); Chamber of Commerce of the 
United States, 14 NMB 347, 362 (1987). This duty stems directly from 
our statutory mandate to ``avoid interruption to commerce or the 
operation of any rail or air carrier.'' Id. The Majority attempts to 
ignore this important statutory mandate by claiming that only our 
mediation function is relevant to keeping stability in the air and rail 
industries. This argument has no merit. The statute does not limit our 
mandate to only mediation, and it is disingenuous to suggest that our 
representation function does not play an important role in carrying out 
our duty to maintain stability in these industries. Moreover, the Board 
has repeatedly in the past raised this policy issue in conjunction with 
our representation function. 16 NMB Ann. Rep. 20 (1950); Chamber of 
Commerce of the United States, 14 NMB 347, 362 (1987). As the Board 
stated in 1987, ``[a] union without majority support cannot be as 
effective in negotiations as a union selected by a process which 
assures that a majority of employees desire representation.'' Chamber 
of Commerce of the United States, 14 NMB 347, 362 (1987). Assuring that 
a representative certified by the NMB enjoys true majority support is 
even more important given that union certifications under the RLA must 
cover an entire transportation system \3\--often over enormously wide 
geographic areas with large numbers of people. I also note that there 
is no process for decertifying a union under the RLA. These unique 
aspects of the RLA do not exist under the National Labor Relations Act 
or elsewhere, and they render irrelevant comparisons between the RLA 
and other election procedures.\4\
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    \3\ It is well settled that the Board applies the term ``craft 
or class'' under the RLA on a system-wide basis. Delta Air Lines 
Global Servs., 28 NMB 456, 460 (2001); American Eagle Airlines, 28 
NMB 371, 381 (2001); American Airlines, 19 NMB 113, 126 (1991); 
America West Airlines, Inc., 16 NMB 135, 141 (1989); Houston Belt & 
Terminal Railway, 2 NMB 226 (1952).
    \4\ As the Supreme Court has long recognized, ``that the 
National Labor Relations Act cannot be imported wholesale into the 
railway labor arena. Even rough analogies must be drawn 
circumspectly, with due regard for the many differences between the 
statutory schemes.'' Railroad Trainmen v. Jacksonville Terminal Co., 
394 US 369, 383 (1969).
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    The only other rationale offered by my colleagues is changed 
circumstances and an increasingly participatory workforce. I fail to 
see how these changes, if true, support changing a 75-year-old practice 
based on important statutory mandates that have not changed. Moreover, 
any argument that changed labor relations support changing our election 
practices are definitively rebutted by the facts: The percentage of 
rail and air employees who are union members is dramatically higher 
than in other industries, and the percentage of air and rail employees 
participating in elections has increased by almost 20% over the last 
decade.
    The Majority has not articulated a sufficient rationale for making 
the change. Moreover, the request from the Transportation Trades 
Division of the AFL-CIO (TTD) that prompted this rule change was made 
in an informal, two-page letter with no legal analysis, no mention of 
changed conditions, and no discussion of our statutory authority. In 
light of these facts, the Board's history, and the lack of support for 
the change, I don't see how the Board could propose a rule change this 
controversial and divisive without the benefit of a full briefing from 
all interested parties.
    I also dissent because I am concerned about the timing of the 
Majority's proposal. The Board recently established a bi-partisan, 
labor-management committee (which we are calling Dunlop II) to examine 
the RLA and the NMB and recommend changes. The committee has not yet 
delivered its report. In my view, it would be premature and 
irresponsible for the Board to propose any change to one of its most 
long-standing procedures before this committee has made its report.
    Moreover, the Board has received requests to begin representation 
proceedings involving close to 40,000 employees at two major airlines--
the largest group of elections in the history of the NMB. I believe it 
is harmful to the reputation and credibility of the Board for it to 
take a position in favor of a change to our election rules during these 
elections, which the Majority does by proposing this change. As I have 
previously stated, I believe the more impartial and responsible 
approach

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would be to seek comment on the TTD's request, together with other 
related issues, so that we could have the benefit of a full briefing on 
all the issues before making proposals in favor of the change.
    I also dissent because the Majority's proposed rule does not 
request comment on several related issues that have been raised by our 
constituents in connection with the TTD's request. I believe firmly 
that the Board should not consider the TTD petition in a vacuum. 
Several parties have requested that we consider a decertification 
procedure, noting that a minority voting rule necessitates some sort of 
decertification mechanism or else it deprives employees of the right to 
be unrepresented. We have also received a request to consider providing 
Excelsior lists to unions. And there are also other areas of our 
representation policy and procedures that would be implicated by a 
change in voting rules. For example, we currently require a union 
seeking to challenge an incumbent union to submit authorization cards 
from more than 50% of eligible voters. If we were to change our voting 
rules to permit fewer than 50% of eligible voters to select a 
representative, we must contemporaneously consider whether we should 
still require a greater than 50% showing of authorization cards to 
challenge an incumbent union. In order to be fair to all interested 
parties, I believe that Board must consider all of these issues 
together, and I am surprised that my colleagues have ignored these 
other requests and are addressing only the TDD's request. I believe the 
Board should have requested comment on all relevant issues before 
making any proposals and I encourage interested parties to submit 
comments addressing these other issues.
    Chairman Elizabeth Dougherty.

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The NMB certifies that this rule will not have a significant impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

National Environmental Policy Act

    This proposal will not have any significant impact on the quality 
of the human environment under the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.).

List of Subjects in 29 CFR Parts 1202 and 1206

    Air carriers, Labor management relations, Labor unions, Railroads.
    Accordingly, as set forth in the preamble, the NMB proposes to 
amend 29 CFR chapter X as follows:

PART 1202--RULES OF PROCEDURE

    1. The authority citation for 29 CFR Part 1202 continues to read as 
follows:

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
    2. Section 1202.4 is revised to read as follows:


Sec.  1202.4  Secret ballot.

    In conducting such investigation, the Board is authorized to take a 
secret ballot of the employees involved, or to utilize any other 
appropriate method of ascertaining the names of their duly designated 
and authorized representatives in such manner as shall insure the 
choice of representatives by the employees without interference, 
influence, or coercion exercised by the carrier. Except in unusual or 
extraordinary circumstances, in a secret ballot the Board shall 
determine the choice of representative based on the majority of valid 
ballots cast.

PART 1206--HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR 
ACT

    3. The authority citation for 29 CFR Part 1206 continues to read as 
follows:

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.


Sec.  1206.4  [Amended ]

    4. Amend Sec.  1206.4(b)(1) by removing the phrase ``less than a 
majority of eligible voters participated in the election'' and by 
adding in its place the phrase ``less than a majority of valid ballots 
cast were for representation.''

    Dated: October 28, 2009.
Mary Johnson,
General Counsel, National Mediation Board.
[FR Doc. E9-26437 Filed 11-2-09; 8:45 am]
BILLING CODE 7550-01-P