[Federal Register Volume 84, Number 144 (Friday, July 26, 2019)]
[Rules and Regulations]
[Pages 35977-35989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15926]
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NATIONAL MEDIATION BOARD
29 CFR Parts 1203 and 1206
[Docket No. C-7198]
RIN 3140-AA01
Decertification of Representatives
AGENCY: National Mediation Board.
ACTION: Final rule.
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SUMMARY: The National Mediation Board (NMB or Board) is amending its
regulations to provide a straightforward procedure for the
decertification of representatives. The Board believes this change is
necessary to fulfill the statutory mission of the Railway Labor Act by
protecting employees' right to complete independence in the decision to
become represented, to remain represented, or to become unrepresented.
This change will ensure that each employee has a say in their
representative and eliminate unnecessary hurdles for employees who no
longer wish to be represented.
DATES: The final rule is effective August 26, 2019.
FOR FURTHER INFORMATION CONTACT: Mary Johnson, General Counsel,
National Mediation Board, (202) 692-5040, [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The Railway Labor Act (RLA or Act), 45 U.S.C. 151, et seq.
establishes the NMB whose functions, among others, are to administer
certain provisions of the RLA with respect to investigating disputes as
to the representative of a craft or class. In accordance with its
authority under 45 U.S.C. 152, Ninth, the Board has considered changes
to its rules to better facilitate its statutory mission to investigate
representation disputes ``among a carrier's employees as to who are the
representatives of such employees.''
Under Section 2, Ninth of the RLA, it is the duty of the NMB 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.'' 45 U.S.C. 152, Ninth. The RLA also authorizes the NMB to
hold a secret ballot election or employ ``any other appropriate
method'' to ascertain the identity of duly designated employee
representatives. Id.
Unlike the National Labor Relations Act (NLRA), the RLA has no
statutory provision for decertification of a bargaining representative.
The Supreme Court, however, has held that, under Section 2, Fourth, 45
U.S.C. 152, Fourth, employees of the craft or class ``have the right to
determine who shall be the representative of the group or, indeed,
whether they shall have any representation at all.'' Bhd. of Ry.,
Airline & S.S. Clerks v. Ass'n for the Benefit of Non-Contract Emps.,
380 U.S. 650, 670 (1965) (ABNE). In ABNE, the Court further noted that
the legislative history of the RLA supports the view that employees
have the option of rejecting collective representation. Id. at 669
(citing Hearings on H.R. 7650, House Committee on Interstate and
Foreign Commerce, 73d Cong., 2d Sess., 34-35 (1934)). The 1934 House
Report on the 1934 amendments to the RLA states with regard to Section
2, Ninth, ``[i]t provides that employees shall be free to join any
labor union of their choice and likewise be free to refrain from
joining any union if that be their desire.'' H.R. Rep. 73 No. 1944 at
2. In Int'l Bhd. of Teamsters v. Bhd. of Ry., Airline & S.S. Clerks,
402 F.2d 196, 202 (1968) (BRAC), the United States Court of Appeals for
the District of Columbia
[[Page 35978]]
(D.C. Circuit), stated that ``it is inconceivable that the right to
reject collective representation vanishes entirely if the employees of
a unit once choose collective representation. On its face that is a
most unlikely rule, especially taking into account the inevitability of
substantial turnover of personnel within the unit.''
Nonetheless, prior to 1983, the Board would dismiss without an
election an application filed pursuant to Section 2, Ninth if the NMB
determined that the applicant did not ``intend to represent'' the craft
or class in collective bargaining under the Act. In Atchison, Topeka &
Santa Fe Ry. Co., 8 NMB 66 (1980), the NMB dismissed the application
filed by J.D. Blankenship because the authorization cards did not
authorize him to act as the representative of the craft or class for
purposes of representation under the RLA, but instead authorized him to
decertify the incumbent union. The Board stated that ``such cards are
not valid for purposes of Section 2, Ninth, to provide a showing of
interest.'' Id. at 70. In Atchison, Topeka & Santa Fe Ry. Co., the
Board dismissed an application supported by cards authorizing Laurence
G. Russell to represent the craft or class in collective bargaining
under the RLA when the NMB became aware that Mr. Russell intended to
negotiate an agreement to terminate the existing collective-bargaining
agreement and ``thereafter refrain from engaging in further
representation of employees.'' 8 NMB 469, 472 (1981). Even if an
individual seeking to decertify succeeded in winning the election and
attempted to disclaim representation, the Board would refuse to process
the disclaimer if it was filed too close in time to the certification.
In that circumstance, the Board would consider the disclaimer as
``clear and compelling evidence'' that the prior election was not a
true representation dispute, was in fact ``designed to frustrate the
purposes of the Act, and would void the prior election restoring the
certification of the incumbent union. See Mfrs. Ry. Co., 7 NMB 451
(1980).
The Board's position and refusal to act was soundly rejected as a
breach of ``its clear statutory mandate'' in the Fifth Circuit's
decision in Russell v. NMB, 714 F.2d 1332 (1983) (Russell), finding
that ``employees have the clear right under the Act to opt for
nonrepresentation.'' In Russell, the Court held that employees have
complete independence under the Act to select or reject a collective
bargaining representative, and the NMB could no longer refuse to
process a representation application after it determined the applicant
intended to terminate collective representation if certified. Since
Russell, however, employees who no longer wish to be represented must
still follow an unnecessarily complex procedure to obtain an election.
Under its current procedures, the NMB allows indirect rather than
direct decertification. The Board does not allow an employee or a group
of employees of a craft or class to apply for an election to vote for
their current representative or for no union. Employees who wish to
become unrepresented must follow a more convoluted path to an election
because of the Board's requirement of the ``straw man.'' This straw man
requirement means that if a craft or class of employees want to
decertify, they must find a person willing to put their name up, e.g.,
``John Smith,'' and then explain to at least fifty percent of the
workforce that John Smith does not want to represent them, but if they
want to decertify they have to sign a card authorizing him to represent
them. Thus, in order to become unrepresented, employees are required to
first sign an authorization card to have a straw man step in to
represent them. In the resulting election, the ballot options will
include the names of the current representative; John Smith, the straw
man applicant; ``no union;'' and an option to write in the name of
another representative. To decertify, employees have to vote for John
Smith, the straw man, with the understanding that if certified, he will
disclaim representation, or vote for no representation.\1\ Although
voters selecting the straw man and the ``no union'' option may both
desire nonrepresentation, their votes are not aggregated.
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\1\ In 2010, the Board changed its representation election
procedures to certify a representative based on a majority of
ballots cast. 75 FR 26062 (May 11, 2010) (2010 Representation Rule).
Previously, an individual or organization had to receive votes from
a majority of all eligible voters in the craft or class and the only
way to vote for no representation was to abstain from voting. Thus,
in order to decertify, after soliciting a showing of interest from
fellow employees indicating their desire to have the straw man
represent them for collective bargaining under the RLA, the straw
man had to convince those same employees to either abstain from
voting in the subsequent election so that the union would not obtain
a majority, or vote for him with the understanding he would
disclaim.
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On January 31, 2019, the NMB published a Notice of Proposed
Rulemaking (NPRM) in the Federal Register inviting public comment for
60 days on a proposal to amend its RLA rules to provide a
straightforward procedure for decertification of representatives. 84 FR
612. Under the Board's proposed procedure employees may submit
authorization cards to decertify their current representative. The
wording on the card must be unambiguous and clearly state the intent to
no longer be represented by the current union. The showing of interest
requirement will be the same showing of interest required for a
certification election--at least 50 percent of the craft or class.
The Board further proposed eliminating the straw man representation
choice from the ballot in decertification elections. Once it is
determined that the showing of interest is valid and that at least 50
percent of the craft or class no longer wish to be represented by their
current representative, the Board will authorize an election with the
incumbent and the no representation option, along with a write-in
option, appearing on the ballot. The applicant's name will not appear
on the ballot since the representation dispute is whether the employees
in the craft or class want to continue to be represented by the
incumbent union. The Board's existing run-off rules will continue to
apply.
In the NPRM, the Board noted that, while employees have the ability
to decertify a representative under the RLA, the current straw man
process is unnecessarily complex and convoluted. There is no statutory
basis for the additional requirement of a straw man where employees
seek to become unrepresented. The NMB noted the legislative history and
court precedent that, under the RLA, employees have complete
independence to be free to reject representation, as they are free to
join any labor organization of their own choosing. By failing to have
in place a straight-forward process for decertification of a
representative, the Board is maintaining an unjustifiable hurdle for
employees who no longer wish to be represented and failing to fulfill
the statutory purpose of ``freedom of association among employees.'' 45
U.S.C. 151a(2).
In the NPRM, the Board also stated its belief that successful
decertification, like certification, is a challenging and significant
undertaking by employees with a substantial impact on the workplace for
both employees and their employer. In the Board's view, changes in the
employee-employer relationship that occur when employees become
represented, change representative, or become unrepresented require
similar treatment. Accordingly, the Board proposed extending the two
year time limit on applications in Section 1206.4 to decertification as
well as certifications. The other time limits on
[[Page 35979]]
applications set forth in Section 1206.4 will remain unchanged.
Subsequently, on March 1, 2019, the NMB published a Notice of
Meeting in the Federal Register inviting interested parties to attend
an open public hearing with the Board to share their views on the
proposed rule changes regarding the proposed decertification procedure.
84 FR 6989.
II. Notice-and-Comment Period
In response to the NPRM, the NMB received 32 submissions during the
official comment period from a variety of individuals, employees, trade
associations, labor unions, Members of Congress, advocacy groups, and
others. (Comments may be viewed at the NMB's website at (http://www.nmb.gov). Additionally, the NMB received written and oral comments
from nine individuals and representatives of constituent groups under
the RLA that participated in the March 28, 2019 open public hearing.
All of the comments reflected strongly held views for and against
the NMB's proposed change. The NMB has carefully considered all of the
comments, analyses, and arguments for and against the proposed change.
The commenters supporting the Board's proposed change stated that the
proposal was clearly authorized by the statute and that it would
simplify an unnecessarily complex procedure. In its comment in support
of the NPRM, the National Railway Labor Conference (NRLC) stated that
the ``Board's proposal is modest and sensible and strikes the proper
balance between stability of labor relations--which is critical to the
railroads--and the statutory right of employees `to determine who shall
be the representative of the craft or class''' under Section 2, Fourth
of the Act. The NRLC noted that there is ``already a decertification
mechanism under the RLA. Thus, any suggestion that the Board is
contemplating a significant or unprecedented change in representation
is hyperbole. The change under consideration is a minor, incremental
adjustment that will merely make the existing procedure clearer and
simpler.'' Based on their own experience with the current procedures
several individuals who had filed applications as the straw man
expressed strong support for a direct decertification procedure. The
National Right to Work Legal Foundation (Right to Work) stated that the
proposed change is ``long overdue,'' and the NPRM is ``needed to ensure
that all employees have an equal and fair choice regarding union
representation. The Board has statutory authority to adopt the proposed
rules, and should do so as soon as possible.'' Americans for Tax Reform
stated the ``NMB's proposed rule would restore balance and ensure that
all workers, whether they want union representation or not, are treated
equally.'' The Competitive Enterprise Institute (CEI) stated that the
proposed rule would eliminate confusion in the decertification process
since employees desiring decertification would no longer have to
recruit a craft or class member to appear on the ballot as the straw
man or convince a majority of employees to sign authorization cards for
the straw man while also explaining that this individual is not
actually going to represent them. Instead, employees would simply
collect cards in support of no union representation. The proposed
change, in the view of the CEI, would also protect employees from
harassment, citing examples of on-line bullying. Rusty Brown of RWP
Labor stated that ``[a]ll Americans should have the right to
unionization but should also have the right to remove these unions as
their bargaining representative through a straightforward and efficient
means.''
Some of the arguments in favor of the NPRM will be discussed in
greater detail in the discussion that follows; however, the preamble
will focus on the Board's response to the substantive arguments raised
by those opposed to the NPRM.
III. Summary of Comments on the NMB's Proposed Decertification
Procedure
Commenters to the Board's proposal to make its current
decertification procedure more simple and direct expressed widely
divergent views of the NPRM and the Board's process in formulating the
NPRM. The Board's response to those comments is as follows.
A. The Board's Statutory Authority for the Proposed Change
Some of the comments opposed to the NPRM question whether the NMB
possesses the statutory authority to make the proposed change. The
International Association of Machinists and Aerospace Workers, AFL-CIO
(IAM) \2\ states that ``the Board plainly lacks statutory authority to
issue this proposed rule. In fact, Congress has expressly forbidden the
action now proposed.'' While conceding that the RLA neither mentions
nor requires a decertification procedure, the IAM asserts that the NPRM
is ``contrary to the plain language of the Act.'' The Transportation
Trades Department of the AFL-CIO (TTD) asserts that the proposed change
exceeds the Board's narrow statutory authority to investigate and
certify employees' choice of a union representative. Since, unlike the
NLRA, Congress has not amended the RLA to provide an express provision
for decertification, the TTD states that the current straw man
procedure is the only method for decertification allowed by Section 2,
Ninth. One commenter, Deven Mantz, Brotherhood of Maintenance of Way
Employes Division-IBT North Dakota Legislative Director, stated that
work groups should only be allowed to change unions, not become ``not
Union completely.'' The TTD, IAM, Association of Flight Attendants-CWA
(AFA), and other commenters opposed to the NPRM also suggest that
Congress' decision to amend the Act to set a 50 percent showing of
interest requirement for representation disputes under the RLA is
further evidence that the scope of representation disputes under the
RLA is limited to applications ``requesting that an organization or
individual be
[[Page 35980]]
certified as the representative of any craft or class of employees.''
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\2\ On April 24, 2019, following the close of the comment
period, the IAM filed a ``Supplemental Comment'' stating that the
NPRM is ``motivated at least in part by a broader political
strategy,'' and requesting that the Board ``exercise its statutory
authority, . . . maintain its independence from carrier and
political influences, and cease this rulemaking without issuing the
proposed rule.'' The basis for this request lies in the IAM's
Freedom of Information Act (FOIA) Request filed with the Board
shortly after the publication of the NPRM. The document produced by
the NMB and relied on by the IAM is one email from a carrier
representative to Board Member Gerald Fauth urging the Board to
``think bigger'' than decertification and referencing other
potential rulemakings by executive branch agencies as well as the
potential of rulemaking as political strategy as exercised under the
Obama Administration in 2011. To the extent that the IAM is alleging
bias, the single received email, which was given no reply, falls
short of establishing the ``clear and convincing showing that [an
agency member] has an unalterably closed mind on matters critical to
the disposition of the rulemaking.'' Ass'n of Nat'l Adver. v. FTC,
627 F.2d 1151, 1154 (D.C. Cir. 1979). IAM does not point to
statements by Member Fauth or any Member of the Board. Further, an
administrative official is presumed to be objective and ``capable of
judging a particular controversy fairly on the basis of its own
circumstances.'' United States v. Morgan, 313 U.S. 409, 421 (1941).
The IAM also appears to suggest that by proposing this rule
change, the Board has compromised its neutrality. This suggestion is
entirely unwarranted. The Board majority followed the mandates of
the Administrative Procedure Act (APA) in considering, drafting,
adopting, and promulgating the NPRM. The policy and procedures at
issue are the Board's own determinations. An agency is free to
change its interpretations and its policies so long as the new
policy or interpretation is permissible under the statute, there are
good reasons for it, and the agency believes it to be better. FCC v.
Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (FCC v.
Fox). Finally, under the APA, the Board's final rule is subject to
judicial review.
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With one exception, most opposing commenters acknowledge that
employees have the right under the RLA to decertify their
representative so long as an employee agrees to act as the straw man
and gathers the requisite showing of interest from their fellow
employees authorizing the straw man to represent them even though the
straw man or the employees want to become unrepresented. During the
election, employees must either vote for no representation or for the
straw man with the understanding that the straw man will disclaim. The
commenters opposed to the NPRM essentially argue that the Act compels
the filing of an application for representation even if the straw man
applicant, the employees in the craft or class, the incumbent union,
and the Board all know that the desire of the employees invoking the
Board's services is an election on the question of whether to remain
represented. If the Act prohibits decertification, then there can be no
indirect decertification. But that is not the case.
As has previously been stated, the RLA makes no mention of
decertification and it also sets forth no specific procedure for
representation. Air Transp. Ass'n of Am. v. NMB, 663 F.2d 476, 485
(D.C. Cir. 2011) (ATA). Section 2, Ninth gives the Board the authority
to investigate representation disputes and ascertain the identity of
the employees' representative through a secret ballot election or ``any
other appropriate method of ascertaining the names of the duly
designated and authorized representatives.'' The Board is given broad
discretion with respect to the method of resolving representation
disputes with the only caveat being that it ``insure'' freedom from
carrier interference. ABNE, 380 U.S. 650, 668-669 (1965).
The courts have also long rejected the idea that the absence of a
decertification provision means the Board has no power to decertify a
union. Since employees have the right to reject representation under
the RLA, inherent in the Board's authority to certify a representative
is the power to certify that a particular group of employees has no
representative. BRAC, 402 F.2d 196, 202 (D.C. Cir. 1968). In Russell,
discussed above, the court found that the Board exceeded its statutory
authority by dismissing a representation application with a valid
showing of interest because the applicant did not intend to represent
the craft or class for purposes of collective bargaining, contract
disputes, and grievances. Rather, if certified, Mr. Russell intended to
abrogate the contract and disclaim representation. Mr. Russell was the
straw man and the purpose of seeking an election was the
decertification of employees' incumbent union. The court found,
however, that Mr. Russell did intend to represent the employees within
the meaning of Section 1, Sixth which defines ``representative'' as
``any person or persons, labor union, organization, or corporation
designated either by a carrier . . . or by its employees, to act for it
or them,'' since a majority of the craft or class wanted Mr. Russell to
take the steps necessary to terminate collective bargaining.\3\
Russell, 714 F.2d at 1342. It is clear that the Board has the authority
and the obligation to accept applications from employees where the
question concerning representation is whether employees want to reject
representation.
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\3\ The 5th Circuit's decision in Russell further notes that, at
oral argument, the Board argued that rather than filing the straw
man application, ``the correct course of action would have been for
the employees to have petitioned the Board `to hold an election to
either vote for the current union representative . . . or,
nonunion.' '' Russell, 714 F.2d at 1342. The court stated that it
did not see why the Board's suggested procedure was any more or less
objectionable than Mr. Russell's actions and it was in fact a
procedure almost identical to the procedure under the NLRA which the
Board had previously stated ``time and time again as not allowed by
the RLA.'' Id.
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The TTD and other commenters opposed to the NPRM assert that
Section 2, Twelfth limits the Board's authority under Section 2, Ninth
and preclude the Board's proposal for direct decertification. The TTD
argues that the language of Section 2, Twelfth requires that
applications filed with the NMB under Section 2, Ninth are only those
``requesting that an organization or individual be certified as a
representative of any craft or class of employees'' and that ``the
proposed rule cannot be reconciled with that language.'' The IAM
asserts that Section 2, Twelfth is an ``additional statutory limit on
the Board's authority to carry out its authority to make a
representation determination.'' The Board agrees that Section 2,
Twelfth places an additional limitation to the Board's authority under
Section 2, Ninth, but that limitation is simply that once requested to
investigate a representation dispute, the NMB cannot direct an election
or use any other method to determine the representative of a craft or
class of employees without a showing of interest of not less than 50
percent of employees in the craft or class. Representation Procedures
and Rulemaking Authority, 77 FR 75545 (Dec. 21, 2012) (2012 NMB
Rulemaking).
In the Board's view, the language of Section 2, Twelfth must be
read in the context of Section 2, Fourth, which gives the majority of
any craft or class the right to determine who their representative
shall be, and Section 2, Ninth, which places an affirmative duty to
determine the employees' choice of a representative when a
representation dispute exists; the dispute is among a carrier's
employees; and one of the parties to the dispute has requested the
Board's services. See Ry. Labor Execs' Ass'n v. NMB, 29 F.3d 655, 666-
67 (D.C. Cir. 1994) (RLEA). Section 2, Twelfth does not require
employees or their representative to pretend to seek certification in
order to vindicate their statutorily protected right of complete
independence in the choice to be represented or be unrepresented.
The FAA Modernization and Reform Act of 2012, Public Law 112-95
(2012 FAA Modernization Act), contained, inter alia, several amendments
to the RLA \4\ including the addition of Section 2, Twelfth. Section 2,
Twelfth titled ``Showing of interest for representation elections,''
provides that the Board,
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\4\ In addition to Section 2, Twelfth, the 2012 FAA
Modernization Act amended Section 2, Ninth to direct a run-off
election when no ballot option receives a majority in an election
with three or more choices (including the no representation option).
The run-off election is between the two ballot options that the
largest and the second largest number of votes. The amendments also
added a provision regarding the Board's rulemaking authority and
provided for an audit of the NMB's programs and expenditures by the
Comptroller General, discussed infra.
upon receipt of an application requesting that an organization or
individual be certified as the representative of any craft or class
of employees, shall not direct an election or use any other method
to determine who shall be the representative of such craft or class
unless the Board determines that the application is supported by a
showing of interest from not less than 50 percent of the employees
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in the craft or class.
45 U.S.C. 152, Twelfth.
Prior to these amendments, the showing of interest requirements
needed to support an application under Section 2, Ninth invoking the
Board's services to investigate a representation dispute among a
carrier's employees were established by the exercise of the Board's
discretion and not defined by statute. The NMB's Rules provided that an
individual or organization needed to support their application with
authorization cards from thirty-five percent of the craft or class if
those employees were unrepresented and authorization cards from more
than fifty percent of the craft or class if those employees were
already represented. 29 CFR 1206.2. An intervening individual
[[Page 35981]]
or organization needed a thirty-five percent showing of interest to get
on the ballot. 29 CFR 1206.5.
The NMB has consistently interpreted the language of Section 2,
Twelfth as requiring a valid showing of interest of 50 percent for any
application invoking its services to resolve a representation dispute.
In its 2012 rulemaking to modify its rules to reflect the amended
statutory language, the Board rejected arguments that Section 2,
Twelfth did not apply to applications resolving the representation
consequences of mergers of two or more carriers. The Board stated the
RLA
Only provides for investigation of a representation dispute by
the NMB ``upon request of either party'' to that dispute. Thus, the
statutory language does not distinguish between requests to
investigate where the craft class is unrepresented, where the
employees wish to change representation or become unrepresented, or
where there has been a merger or other corporate transaction. Under
the Board's practice, the Section 2, Ninth request is made in the
form of an application and the Board has always had one application,
``Application for Investigation of Representation Dispute,'' which
requests the Board to investigate and certify the name or names of
the individuals or organizations authorized to represent the
employees involved in accordance with Section 2, Ninth.
2012 NMB Rulemaking, 77 FR 75545. Prior to the 2012 FAA Modernization
Act, the Board had one application with different showing of interest
requirements. With Section 2, Twelfth, Congress determined that the
Board must require the same showing of interest for any application.
The Board finds further support for its position in the Conference
Report for the 2012 FAA Modernization Act (Conference Report). The most
dispositive indicator of legislative intent is the conference report.
United States v. Commonwealth Energy Sys., 235 F.3d 11, 16 (1st Cir.
2000). With regard to the NMB, the Conference Report notes that the
House bill, Section 903, provided for the repeal of the Board's 2010
Representation Rule, summarized as changing ``standing rules for union
elections at airlines and railroads, which counted abstentions as votes
`against' unionizing, to the current rule which counts, only no votes
as `against unionizing, abstentions do not count either way.'' H.R.
Conf. Rep. No. 112-381, at 259 (2012). The Senate bill contained ``no
similar provision.'' Id. The conference action report states that
repeal of the NMB's representation rule ``was not agreed to by the
Conference, and is not included in the final bill.'' Id. The conference
committee did agree, inter alia, to ``amend section 2 of the Railway
Labor Act by raising the showing of interest threshold for elections to
not less than fifty percent of the employees in the craft or class.''
Id. at 260 (emphasis added). The use of the term ``election'' without
qualification does not suggest that Congress intended to limit the
Board's authority to only those requests to certify a representative.
The 2012 amendments were not intended to limit the types of
representation disputes among carrier employees to be resolved by the
Board under Section 2, Ninth. The authority of the NMB to resolve all
representation disputes--disputes involving employees' right to become
represented, to change representation, or to become unrepresented--is
essential to preserve employee free choice. The statutory
interpretation urged by the TTD, IAM, and other commenters opposed to
the rule would profoundly alter the Board's core authority under
Section 2, Ninth.\5\ Congress, however, does not use vague schemes or
ancillary provisions to alter the fundamental details of a regulatory
scheme-- it does not, as the adage says, hide elephants in mouse holes.
Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001); MCI
Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 231 (1994). The 2012
amendments were aimed at the Board's discretionary practices applicable
to all applications, namely the showing of interest requirements and
the run-off procedures, in response to the Board's decision to change
the way it counted ballots in all representation elections.
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\5\ At best, under a literal reading of Section 2, Twelfth, the
50 percent showing of interest is applicable only to applications
seeking certification of an individual or organization and the Board
is free to adopt a different showing of interest for applications
for decertification.
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In the Board's view, TTD's emphasis on the words ``application
requesting that an organization or individual be certified as
representative'' is misplaced. Section 2, Ninth gives the Board broad
authority to determine employees' choice of representative. As the D.C.
Circuit has noted, the right of employees to reject representation
yields the corollary that the Board possesses the implied power to
certify to the carrier that a craft or class of employees has rejected
representation. BRAC, 402 F.2d 196, 202 (1968) (citing ABNE, 380 U.S.
650 (1965)). Following its duty under Section 2, Ninth, the result of
every NMB representation elections is the official notification to the
parties and the carrier as to who is the designated representative of
the craft or class at issue. When employees choose to become
represented or change representation, the notification is titled a
``certification.'' When the employees choose to become or remain
unrepresented, the notification is titled a ``dismissal.''
Commenters opposed to the NPRM also suggest that the fact that the
Government Accountability Office (GAO) did not recommend a change to
the NMB's decertification process and Congress' subsequent inaction is
tantamount to a Congressional limitation on the Board's statutory
authority under the RLA. The TTD stated during the hearing that the
Comptroller General was to make recommendations to the Board and
appropriate congressional committees regarding actions that may be
taken by Congress or the Board to ensure that processes are fair and
reasonable for all parties, and no recommendations were made.
In fact, Section 165(b) of the 2012 FAA Modernization Act did
direct GAO to review, evaluate and make recommendations to the Board
and congressional committees within 180 days of enactment of the law
regarding the Board's certification procedures. However, that mandate
was terminated by the three congressional committees of jurisdiction
within 134 days after the enactment of the law, according to GAO
documentation. Revae Moran et al., U.S. Gov't Accountability Office,
GAO-12-835R, ``National Mediation Board Mandates in the FAA
Modernization and Reform Act of 2012'' (June 27, 2012). The
congressional committees instead accepted a Congressional Research
Service report (CRS Report) summarizing the differences between the
three major federal labor relations laws. See generally Alexandra
Hegji, Cong. Research Serv., R42526, ``Federal Labor Relations
Statutes: An Overview'' (May 11, 2012). The CRS Report notes that
Congress has enacted three major laws that govern labor-management
relations in the private and federal sectors: the RLA, the NLRA, and
the Federal Service Labor-Management Relations Statute. The CRS Report
provides ``a brief history and overview of each of these statutes. It
also discusses key statutory provisions for each statute.'' Id. at 1.
The CRS Report's discussion of decertification states that, although
the NMB does not have a formal procedure for decertifying a union, it
has ``several practices that effectively remove an incumbent union's
certification.'' Id. at 8 (citing ABA, ``Selecting a Bargaining
Representative,'' The Railway Labor Act, 1st Edition, pp. 135-137
(1995)).
The Board believes that Congressional termination of this GAO
research directive and reliance on the CRS
[[Page 35982]]
Report which merely summarized then-current procedure has no effect on
its statutory authority. Before and after the 2012 FAA Modernization
Act, the authority to carry out the statutory mandates of the RLA was
and is delegated by Congress to the Board. No other agency possesses
this authority and the audit provisions added to the RLA by the 2012
FAA Modernization Act do not in any way circumscribe this authority.
45 U.S.C. Section 165(a) provides for the ``audit and evaluation''
of the programs and expenditures of the NMB by the Comptroller General.
An evaluation and audit ``shall be conducted not less frequently than
every 2 years . . . [or] as determined necessary by the Comptroller
General or the appropriate congressional committees.'' GAO has
conducted such an audit of the NMB in 2013, 2016, and 2018. At the time
of this rulemaking, GAO is conducting the 2020 audit. As discussed
above, section 165(b), which was terminated, provided for an
``immediate review of certification procedures.'' This review was to be
separate from the biannual evaluation and audit and required the
Comptroller General to review the NMB's process to certify or decertify
representation to ensure that the processes are fair and reasonable for
all parties by examining whether the NMB's processes or changes to
those processes are consistent with congressional intent. The provision
also required a comparison of the NMB's representation procedures with
procedures under other state and federal labor statutes including
justification for any discrepancies.
The 2013 GAO Report made no recommendations for the changes to the
NMB's representation processes because it found that that the NMB had
responded to industry legal challenges and stakeholder disagreements
and its procedures were consistent with other federal labor relations
statutes. U.S. Gov't Accountability Office, GAO-14-5, ``Strengthening
Planning and Controls Could Better Facilitate Rail and Air Labor
Relations'' (Dec. 3, 2013). The 2013 GAO Report concluded that the 2010
Representation Rule change ``caused disagreement among some
stakeholders,'' and, with regard to decertification, the GAO Report
stated
Some stakeholders also wanted NMB, as part of the 2010
rulemaking, to clarify the process for decertifying, or removing, a
union representative. The RLA does not specify a decertification
process, and NMB offers minimal guidance on its website on steps to
remove an employee representative. In its preamble to the 2010 rule,
NMB noted that, while not as direct as some commenters might like,
the existing election procedures allow employees to ``rid themselves
of a representative,'' and that the 2010 change further gives these
employees the opportunity to affirmatively cast a ballot for no
representation. However, an airline carrier official and a former
board member said the process in place remains ineffective and
highly confusing. For example, a ballot currently may contain two
options that are each a vote for no representation: ``no
representative,'' and an applicant who is on the ballot as a ``straw
man'' who intends, if elected, to step down so as to remove
representation for the craft or class. This applicant seeking
removal of representation has to collect sufficient authorization
cards to prompt an election in order for the craft or class to make
this change. A former NMB board member said that there is the
potential for votes opposed to union representation to be split by
votes for ``no representative'' and for a straw man. The result is
that these vote counts will not be consolidated in favor of
decertification, which can then happen only if either the ``no
representative'' or straw man receives a majority of the votes cast.
Id. at 46. The GAO report also includes a table comparing the NMB to
the National Labor Relations Board, the Federal Mediation and
Conciliation Service, and the Federal Labor Relations Authority. Id. at
11.
Thus, GAO concluded and Congress accepted the conclusion that the
NMB's certification and decertification procedures were reasonable and
consistent with other federal statutes. This conclusion in no way
precludes the NMB's obligation to make those procedures less complex
and convoluted in order to better effectuate its statutory mandate.
Commenters including the TTD, the Southwest Airlines Pilots
Association, and the AFA, also assert that the Board is exceeding its
statutory authority by changing the language of 29 CFR 1203.2 to allow
the investigation of an application to be filed by ``an individual
seeking decertification.'' These commenters misinterpret the NPRM and
the Board's intent as, in fact, the Board agrees that the Board may
investigate a representation dispute only upon the request of the
employees involved that dispute, or their representative. As the D.C.
Circuit stated in RLEA, ``[f]or the Board to act otherwise is for the
Board blatantly to exceed its statutory authority.'' 29 F.3d 655, 665
(D.C. Cir. 1994). The Board agrees with these commenters that only
employees or their representatives may invoke the Board's services
under Section 2, Ninth to resolve a dispute regarding the identity of
their collective bargaining representative. To make clear the Board's
intent, the text of Section 1203.2 has been clarified in the final rule
to require an employee to file a decertification application.
Under the proposed rule change, an employee must file an
application asserting that a representation dispute exists among the
identified craft or class. This application must be supported by a
valid showing of interest from 50 percent of the craft or class. The
difference is that the Board will now accept authorizations that
clearly and unambiguously state the employee's desire to no longer be
represented by their incumbent union. Such an authorization will
clearly indicate the intent of the employees and where it is clear that
the petitioning employees wish to be free of the incumbent
representative, the Board will authorize an election and the ballot
will include the incumbent union and the no representation option,
along with the write-in option. The applicant's name will not be
included on the ballot because the Board is eliminating once and for
all the forced pretense that employees are authorizing the applicant to
represent them.
B. Justification for the Proposed Change
Almost all of the commenters opposed to the NPRM suggest that the
Board has not provided an adequate justification for this change. The
TTD notes that the NMB does not claim any changed circumstances that
have led it to reevaluate a practice that it has stated is consistent
with the statute and allows employees an ample opportunity to alter
their representation. Many of the commenters opposed to the NPRM also
argue that the Board is somehow bound by prior statements that the
change is unwarranted. Some commenters point to the 1987 statement that
it would only make such a change if it was ``required by statute or
essential to the administration of the Act.'' In re Chamber of
Commerce, 14 NMB 347, 360 (1987) (Chamber of Commerce). Other
commenters rely on statements in the 2010 Representation Rule that the
existing straw man procedure together with the option to vote for ``no
representation'' allows employees to rid themselves of a collective-
bargaining representative. 75 FR 26078.
Commenters discussed the various justifications for the rule change
in the NPRM and provided additional policy reasons in support of and in
opposition to the proposed change. Before discussing those specific
issues, the Board notes, as it did in the 2010 Representation Rule,
that under FCC v. Fox, 556 U.S. 502 (2009), agencies are free to adopt
an interpretation of its governing statue that differs from a previous
interpretation and that such a
[[Page 35983]]
change is subject to no heightened judicial scrutiny. ATA, 663 F.2d
476, 484 (D.C. Cir. 2011). Nor did the Board adopt a ``compelling
reasons'' standard in In re Chamber of Commerce. Id. In upholding the
Board's 2010 Representation Rule, when the NMB finally made a change to
the way it counted ballots that it had previously considered and
rejected several times, the D.C. Circuit stated that ``the fact that
the new rule reflects a change in policy matters not at all'' and that
``under the APA, the question for us is whether the Board considered
all the facts before it, whether it drew reasonable inferences from
those facts and whether the final decision was rationally related to
those facts and inferences.'' Id. As discussed in Section A, the Board
believes it has the statutory authority to provide employees with the
option to directly request a decertification election rather than
making them seek decertification in the guise of certification with a
straw man. As discussed below, the Board also believes that direct
decertification better protects the right of free choice of
representatives by eliminating a confusing and counterintuitive process
that requires employees to ostensibly seek representation to vindicate
their right to be unrepresented.
Commenters opposed to the NPRM state there is no evidence to
support the Board's statement that the straw man process is
``unnecessarily complex and convoluted.'' The Board, however, received
many comments regarding the confusion that is inherent in the straw man
process. Many commenters supporting the NPRM, including Allegiant Air,
CEI, NRLC, Gregg Formella, and the U.S. Chamber of Commerce (Chamber),
noted that the Board's straw man procedure is inherently confusing
because employees must authorize a representative to trigger an
election to remove their representative. As the Chamber stated in its
comment, ``[i]n order to achieve decertification, employees have to
collect authorization cards in support of electing a representative
they do not actually want and even though the vote is about declining
further representation.'' Right to Work, which provides free legal
services to individual employees, stated that its attorneys regularly
receive calls from employees seeking information about their right to
disassociate from unions and that a ``result of the inquiries is that
RLA-covered employees are often left confused and disheartened when the
straw man rules are explained to them.'' Right to Work described the
NMB's current decertification procedure as ``daunting'' to employees
and stated that ``many RLA-covered employees simply give up when the
straw man obstacles are explained to them.'' Many comments in support
of the NPRM noted the potential for confusion because both the straw
man and the ``no representation'' option appear on the ballot. The CEI
noted that under the current procedure, ``employees are faced with a
ballot with the straw man and a no union option which causes confusion.
Some employees who wish to remove union representation will reason they
should vote for the straw man because that is the ballot option for
which they signed an authorization card. However, other employees who
similarly desire to reject union representation will vote for the no
union option. This splits the vote for decertification.'' Rebecca Smith
of Rock Creek House Consulting, LLC stated that she had assisted pilots
in decertification efforts and ``no matter how well I explain it to
those who ask, on voting day there is still confusion over the `straw
man.' This confusion leads to people voting for the `straw man' because
they believe it reflects their choice not to be represented.'' Ms.
Smith added that, in her view, making the process more straightforward
``also clarifies for those who want to be represented where to cast
their vote since the current ballot gives them what appears to be
several choices for representation.'' The Board takes notice that in
both successful and unsuccessful straw man elections employees cast
votes for both the straw man and ``no representation.'' Jeremy
Dalrymple of the Heritage Foundation noted that not only is the straw
man procedure ``counterintuitive because it requires employees that are
seeking to divest themselves of representation first petition for a
strawman to represent them, but, given the nationwide system of
representation under the RLA, there are significant barriers to
communicating the convoluted concept of the `strawman' to employees
spread across multiple geographic locations.''
The comments from individuals who had been a straw man supported
the view that the current procedure is confusing. Steven Stoecker, who
filed an application as the straw man in Allegiant Air, 43 NMB 84
(2016), stated that he had to convince ``half of my work group . . . to
sign an authorization card that stated that I wanted to represent them,
even though I didn't want to. Trying to explain to the rest of the work
group that in order to decertify and become unrepresented, they have to
sign a card authorizing me to represent them was confusing to say the
least.'' Following the Board's authorization of the election, Mr.
Stoecker stated that ``I had a short window of time to campaign and
remind my colleagues to not vote for me but rather to vote `no
representation.''' Ronald Doig, another employee who served as the
straw man in Allegiant Air, 42 NMB 124 (2015), commented,
[w]e had to start with an education process that explained to my
fellow Dispatchers that in order to get the Teamsters out we had to
sign an authorization card wanting me as the Straw Man to represent
them. Then we further explained, that when the election comes
around, do not vote for the Straw Man but vote for the ``No
Representation Option.'' Although we were successful quite frankly
some of the Dispatchers never got it. The process as it exists today
is confusing and not straightforward. From my experience as a former
Straw Man, employees should have a clear path that states we want an
election to decertify our union.
Firsthand accounts from straw men also revealed the hostility,
threats, and retaliation directed at them by union supporters. The
comments from Mr. Stoecker, Mr. Woelke, straw man in Flight Options,
LLC/FlexJet, LLC, 45 NMB 95 (2018), and Mr. Doig described the burden
borne by the straw man. According to Mr. Stoecker, ``[t]he straw man
also has a target on his back since his name is on all the
authorization cards and on every election ballot . . . Elimination of
the straw man will be beneficial from the standpoint that no one
individual will have to bear the brunt of union attacks during a
decertification effort.'' A comment from Frank Woelke, who also filed
an application as the straw man, described his own experience,
including the exposure of personal information on the internet, online
personal attacks, and vulgar post cards and suspicious packages sent to
his home. Mr. Woelke stated that ``[n]obody in his right mind would
want to stand up as a Strawman'' knowing the intimidation, slander, and
harassment they will be exposed to because of the NMB's procedures. Mr.
Doig stated that he was subject to retaliation from the union and its
supporters and expressed the view that it ``is almost as if the process
is set up to be a deterrent to decertification efforts by making a
target out of the Straw Man. Again, a straight forward [sic] process
will remove the Straw Man's name form the ballot and give employees the
freedom to exercise their rights without that fear.''
The TTD argues that the straw man will still exist and that nothing
has been simplified by the NPRM. The Board disagrees. Under the current
procedures,
[[Page 35984]]
an individual employee files an application supported by valid cards
from 50 percent of the craft or class authorizing that individual to
represent the employees for purposes of collective bargaining under the
RLA. Following the Russell decision, the Board does not inquire into
whether the individual actually intends to represent the craft or class
or the individual is the straw man. The Board simply authorizes the
election and conducts a tally. Sometimes the individual is certified.
Sometimes the incumbent representative is decertified. Under the
proposed change, employees who want to become unrepresented will
express that desire for decertification in their showing of interest
and the individual applicant's name will not appear on the
authorization cards or the ballot. If, however, 50 percent of employees
in a given craft or class want one of their co-workers to represent
them instead of their incumbent representative and that individual
files an application with a valid showing of interest indicating that
50 percent of the craft or class want that individual to represent them
in collective-bargaining under the RLA, the Board will still authorize
an election and conduct a tally. The ballot will include the
applicant's name, the incumbent union, the no representation option,
and the write-in option. In that circumstance, the individual applicant
will no longer be a straw man. Under the rule change, employees will
now have the ability to directly express their desire to become
unrepresented instead of hiding it behind a straw man. The intent to
decertify will be clear through authorization cards stating that they
no longer wish to be represented by their incumbent union and the
individual who filed the application will not appear on the ballot.
The IAM states the NPRM is a ``solution in search of a problem.''
Other commenters like the TTD, SWAPA, and IBT state that the straw man
process is adequate as employees currently use it and succeed in
decertifying their union. In her comment, Senator Patty Murray stated
that there already is ``a well-established process for aviation and
rail workers to remove their union representation or change union
representation should they choose to do so.'' The comments received
from individuals who have used the current procedure, however,
demonstrate that it is confusing, counterintuitive, and often unduly
burdensome for the employee who acts as straw man. The Board's own
experience with calls and inquiries from employees seeking to become
unrepresented bears this out. The Board believes the current straw man
procedure requires employees who wish to become unrepresented to take
an additional, unnecessary, and counterintuitive step to get an
election to determine whether the majority of employees in their craft
or class desire to become unrepresented. When employees who are
currently unrepresented want representation, they file an application
supported by a showing of interest for the organization they want to
represent them. When employees who are currently represented want to
change their representation, they file an application supported by a
showing of interest for the new organization they want to represent
them. When employees no longer wish to be represented, they file an
application supported by a showing of interest for someone who they
don't want to represent them but they must say they want as a
representative to get an election to vote against the incumbent
representative they no longer want. The Board's proposal will simply
allow employees who no longer want representation to directly state
that to the Board, in both their application and on their showing of
interest and to get an election to resolve the representation dispute
they actually have.
The Board is not adopting this proposal to promote decertification.
The Board has no stake in the outcome of a representation dispute. Its
statutory role is to act as a neutral ``referee'' in representation
matters. Switchmen v. NMB, 320 U.S. 297, 304 (1943). The Board ``simply
investigates, defines the scope of the electorate, holds the election,
and certifies the winner.'' ABNE, 380 U.S. 650, 667 (1965). The Board
believes that the proposed change is necessary to fulfil its statutory
mission to protect employees' right to free choice in representation,
including the choice to be unrepresented. The choice in every
representation dispute belongs to the employees of the craft or class
involved, not to the Board. And employees who no longer want collective
representation have the right to bring that dispute directly to the
Board and have it resolved.
Commenters opposed to the NPRM referenced and supplied statistics
regarding the number of applications that resulted in no
representation. The TTD states that employees freely and frequently
alter their representatives and submitted a chart showing elections in
which, after an application was filed by an individual or ``small
unaffiliated organization,'' some incumbent unions were decertified,
some incumbent unions remained certified, and some individual/small
unaffiliated organizations were certified. Some incumbent unions chose
to disclaim representation when faced with a potential challenge rather
than go to an election.
Based on its chart, the TTD states since 1998, a total of 43
individuals or ``likely straw men'' filed applications and in 27 of
those elections, the incumbent representative was ``effectively
decertified'' since either no representation won or the individual was
certified.\6\ The TTD also states that since 1998, 51 small
unaffiliated organizations, which it terms ``potential straw men'' have
filed applications and of those elections, 11 resulted in no
representative being certified and 19 resulted in the small
unaffiliated organization being certified. The TTD also concedes that
some of those small unaffiliated organizations ``may have continued as
a representative.'' The Board agrees that these statistics show that
employees change representation or successfully use the straw man
procedure to become unrepresented.\7\ However, these statistics provide
no evidence regarding how many employees find the straw man process too
confusing, or are unable to find someone willing to face hostility from
union supporters and be the straw man or can convince enough of their
fellow employees to sign cards authorizing an
[[Page 35985]]
individual to represent them when they really don't want representation
in the first place.
---------------------------------------------------------------------------
\6\ From 1998 to 2018, the Board held 695 representation
elections.
\7\ The TTD states that if the ``NPRM is adopted, the Board will
have three avenues for employees to become unrepresented'' but only
one way to get representation. The Board disagrees with this
statement. These three avenues referred to appear to be the existing
straw man procedure, the proposed direct decertification, and
disclaiming representation. Once the NPRM is adopted, the Board
believes that employees who wish to decertify will use the proposed
direct procedure rather than the straw man. This will be apparent by
authorizations indicating the employees no longer wish to be
represented. As previously discussed, employees are free to seek to
have an individual co-worker represent them under the Act. Finally,
the Board has no control over when or under what circumstances a
certified bargaining representative disclaims interest in the craft
or class. That decision rests with the certified representative. As
the TTD points out, some certified representatives do it when they
realize they have lost majority support in the craft or class. In
addition, in the public debate surrounding this rulemaking, some
commenters have characterized one union seeking to take over an
already organized work group (i.e. raiding) as decertification. In
the Board's view this is incorrect. Unions have filed applications
to represent crafts or classes that are already organized. Under the
RLA, some large employee groups are represented by independent
unions not covered by the AFL-CIO's anti-raiding provisions. The
Board recognizes that employees can and do desire a change in
representation. These elections may result in the incumbent
retaining representation, the raiding union winning representation
or, on occasion, the loss of representation entirely. Again, these
elections outcomes are outside the Board's control and reflect the
exercise of employee free choice.
---------------------------------------------------------------------------
In representation disputes, the Board's interest is that the
dispute is resolved and the result reflects the free and uncoerced
choice of a majority of the craft or class. Whether employees choose
representation or reject representation is up to them, not the Board.
What does matter to the Board is whether the election process allows
them to freely exercise their right to choose; and the Board believes
the current proposal to eliminate the straw man and allow direct
decertification will better effectuate employees' right to choose.
When representation is desired by the employee group, the existence
of a direct decertification process clearly broadcasts that the chosen
representative does indeed hold the power to negotiate and advocate for
the work group. In comments supporting the proposal, the NRLC pointed
out that ``if anything, the proposed rule strengthens an incumbent
union by confirming that the union continues to enjoy the support of a
majority of employees.''
C. Effect of the Proposed Change on Stability
The Board agrees about the value of stability in the air and rail
industry, as defined as a lack of disruptions caused by strikes and
work stoppages. The Board's ``almost interminable'' mediation processes
is given much of the credit for preventing disruptions to interstate
commerce. Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union,
396 U.S. 142, 149 (1969). The Board also notes that the statutory
showing of interest requirement contributes to stability, because the
statute requires a valid showing of interest from 50 percent of the
craft or class to trigger a representation election and there is
system-wide representation under the RLA. As the NLRC noted in its
comment, ``[d]ecertification elections on the large Class I carriers
have been rare, to say the least. Any suggestion that the contemplated
changes to the current rules will generate a massive upsurge in
decertification campaigns is, at best, speculative.'' The Board will
not predict the choices employees will make in the future, but it must
act to facilitate the statutory mandate of free choice of
representation, rather than forced unionization for the sake of
stability.
The Board's representation process is the predicate to establishing
a collective-bargaining relationship, but the statute mandates that the
choice to become represented or unrepresented is the employees'
decision and theirs alone. The Russell court rejected the Board's
contention the employee free choice in representation election was
subordinate to the RLA's purpose of avoiding work stoppages through
collective representation and bargaining. While the court agreed that
the RLA encourages collective bargaining as the mode by which disputes
are to be settled and work stoppages avoided, the Act does not compel
employees to choose collective representation. Russell, 714 F.2d 1332
at 1344. Employees under the RLA have complete independence to organize
or not to organize and this necessarily includes the right to reject
collective representation. Id.
D. Effect of the Proposed Change on Interference by Carriers or Outside
Interest Groups
Commenters opposed state that the NPRM creates an increased risk of
carrier interference in representation disputes. The AFA stated that
the NPRM will embolden an employer to inject itself into the
decertification process. IAM states that the proposed rule ``would no
doubt embolden outside organizations funded by employer groups or
interests in ways that are opaque to both the Board and employees, to
seek to decertify elected officials.'' The TTD states that, without a
straw man, there will be no identified individual to be held
accountable throughout the process, and carriers will be ``emboldened
to interfere in the election process by hiding behind the relative
anonymity of the Board's new proposed decertification applications.''
The Board's proposed rule change does not eliminate accountability. As
previously discussed, the Board cannot and is not changing who is
allowed by statute to invoke its services to resolve a representation
dispute. Further, an employee will still be required to file an
application to seek decertification under the NPRM, as is clearly
stated in the new Section 1206.5. The employee filing the application
will still be the responsible party during the representation process
as they are now. The difference is that a straw man will no longer be
required. Instead, the ballot will be limited to the incumbent
representative, the no representation option, and the write-in option.
The RLA protects the right of employees to select their
representatives without carrier influence or interference. The Board
has long held that actions or activity by a carrier that fosters,
assists, or dominates an applicant may result in dismissal of a
representation application because the authorizations are tainted, N.
Air Cargo, 29 NMB 1 (2001), or disqualify the applicant as an employee
representative, Mackey Int'l Airlines, 5 NMB 220 (1975).\8\ There is
nothing in the NPRM that suggests the Board would or intends to
abrogate its duty to protect the right of employee to be free from
carrier interference in their choice of whether to get or reject
representation, and indeed we do not do so in this final rule.
---------------------------------------------------------------------------
\8\ See also Great Lakes Airlines, 35 NMB 213 (2008); Virgin
Atlantic Airways, 24 NMB 575 (1997).
---------------------------------------------------------------------------
E. Time Limit on Decertification Applications
Unlike the NLRA,\9\ the RLA does not place any time limits on when
applications to investigate representation disputes can be filed. The
Board, however, has adopted time limitations on the filing of
applications for the same craft or class on the same carrier. Under
Section 1206.4(a), the Board will not accept an application filed
within two years of the certification of a collective bargaining
representative. Under Section 1206.4(b), the Board will not accept an
application filed with one year of the dismissal of an application. As
discussed below, the Board has modified these time limits several times
in order to strike the appropriate balance between employees'
organizational rights, labor stability, and the disruptive effect in
the workplace from frequent elections.
---------------------------------------------------------------------------
\9\ Section 9(c)(3) of the NLRA precludes the holding of an
election in any bargaining unit in which a valid election was held
during the preceding 12-month period. 29 U.S.C. 159(c)(3).
---------------------------------------------------------------------------
Prior to 1947, following a certification, it was ``the policy of
the Board not to conduct repeat elections until the organization
certified has had a reasonable period to function as the duly
authorized representative of employees.'' 13 NMB Ann. Rep. 4 (1947).
This reasonable period was one year. In the NMB's 1947 Rulemaking, this
period was extended to two years. 12 FR 3083 (May 10, 1947). The Board
stated that the ``policy of the Board in this connection derives from
the law which imposes upon both carriers and employees the duty to
exert every reasonable effort to make and maintain agreements.
Obviously, this basic purpose of the law cannot be realized if the
representation issue is raised too frequently.'' 13 NMB Ann. Rep. 4.
The Board observed that many representation disputes arose out of the
competition between labor organizations. Id. In 1954, the Board revised
its rules to impose a one year
[[Page 35986]]
limitation on the filing of applications for the same craft or class on
the same carrier where (1) the election resulted in no representative
being certified; (2) the application was dismissed by the Board on the
grounds no representation dispute existed; \10\ or (3) the applicant
withdrew the application after it was formally docketed. 19 FR 2121
(Apr. 13, 1954). In making this change, the Board stated that
``representation campaigns and the organizing campaigns which
necessarily precede them cause unsettled labor conditions and, in many
cases, disturb employees substantially in the discharge of their
duties. It is contemplated that the [rule change] will prevent hasty
refiling of applications which have previously been dismissed by the
Board.'' 20 NMB Ann. Rep. 10 (1954). The 1954 rule contained a proviso
that the three conditions would ``not apply to employees of a craft or
class who are not represented for purposes of collective bargaining.''
19 FR 2121. The effect of the proviso was to exempt applications
pertaining to unrepresented employees from the filing time limitations.
45 NMB Ann. Rep. 10 (1979). Thus, in cases where unrepresented
employees chose to remain unrepresented, there was no time limitation
whatsoever and a new election could be sought the very next day. In
1979, the Board amended Section 1206.4 to make the time limits
applicable regardless of whether or not the employees covered by the
application are represented for purposes of collective bargaining. Id.
The Board did not change the existing time limits of a two year bar
post-certification and a one year bar following dismissal on the three
enumerated grounds. Comments opposed to applying the time limits to all
NMB representation applications regardless of whether the employees
involved were represented or unrepresented asserted that the bar rules
could be used to frustrate employee organization, for example, if an
applicant dominated by a carrier filed to frustrate a legitimate
organization. In response, the Board stated that the language in
Section 1206.4 providing an exception to the time limits ``in unusual
or extraordinary circumstances,'' would allow the Board to remedy a
company dominated union situation as well as ``an election which was
improperly affected by a carrier or other interference at some stage of
the proceeding.'' 44 FR 10602 (Feb. 22, 1979). Thus, the Board has
expanded the time limitations placed on applications several times to
balance the statutory right of freedom of choice in organizing with the
need for labor-management stability and to avoid undue disruption to
the workplace from continual representation elections.
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\10\ Generally, when the applicant had failed to support the
application with a sufficient valid showing of interest.
---------------------------------------------------------------------------
Commenters opposed to the two year limitation following
decertification, including the IBT, the IAM, the TTD, the AFA, the
Association of Professional Flight Attendants, the Allied Pilots
Association, and some Members of Congress, contend that the proposed
change is an unwarranted, unjustified, and impermissible restriction on
employees' right under the RLA to organize and bargain collectively
through representatives of their own choosing. The Board disagrees. As
the foregoing discussion establishes, the NMB has both placed time
limitations on the filing of applications and expanded those
limitations based on considerations of labor stability and disruption
to the workplace. All of these limitations--including the current two
year limitation post-certification--represent a degree of restriction
on employees' exercise of their right to choose or reject collective
bargaining representatives. And all of these limitations reflect an
exercise of the Board's discretion to balance competing interests. The
proposed change reflects the Board's belief that both certification and
decertification are significant undertakings by employees with a
substantial impact on the workplace and employees' relationship with
their employer. This belief is supported by the comments of Ronald
Doig, an employee who successfully led a decertification effort using
the current straw man procedure. According to Mr. Doig,
[w]hen we were successful in the election and voted the Teamsters
out [the NMB's time limits on applications] only allowed one year
before there could be another election. If the Teamsters had
prevailed and won the election, they would have been granted two
years before another election could take place. The difference [in
time limits] is unfair. The Teamsters never let up, continuing their
campaign and we never really got the chance to fully enjoy the
benefits of a direct relationship with our company. Our workplace
remained in a state of distraction the entire year after the
election which led to another election that the Teamsters won. To
this date we are still in a state of distraction and I believe had
we had the same two years the unions get we would have achieved a
stability through a direct relationship.
Employees who have exercised their right to reject representation
deserve a period of repose to transition to that direct relationship
and experience their workplace without a collective representative.
This period of time allows employees to judge the advantages and
disadvantages of their decision without the turmoil of an immediate
organizing campaign.
Commenters opposed to the proposed change to have the two year
limitation in Section 1206.4(a) apply to decertification as well as
certification assert that the change is unwarranted and the Board draws
an improper parallel between certification and decertification. The
commenters opposed state that the two year limitation post-
certification is justified by the need for a newly certified
representative to be afforded an insulated period to bargain for an
initial contract and if necessary participate in mediation before its
representative status is challenged. \11\ The Board has not sought to
alter this two year period post-certification and views it as an
appropriate balance between the goal of labor stability and the
statutory obligation to facilitate free choice in representation or
rejection of representation. The proposed rule change does not affect
this limitation. Rather the proposed change recognizes that the
transition from represented to unrepresented has a significant impact
on the employees and their workplace. The current two year limitation
gives the union a chance to demonstrate the value of its services to
the employees who elected it. After decertification wherein the
majority of employees chose to reject representation, it is only fair
to give employees a chance to experience the effects of their choice on
their workplace.
---------------------------------------------------------------------------
\11\ The Board does note that the two year limitation applies
not only to newly certified representatives negotiating first
contracts, but to all certifications, even to an incumbent union
surviving a raid by another union, Pinnacle Airlines, 35 NMB 1
(2007), or a decertification attempt, Youngstown & N. R.R. Co., 7
NMB 132 (1979). The two year limitation also applies to
certifications without an election as a result of a merger of
carriers, United Air Lines/Cont'l Airlines, 39 NMB 167 (2011); Tex.
Mexican Ry. Co., 27 NMB 302 (2000).
---------------------------------------------------------------------------
If a union has become decertified, it is because a majority of the
employees in the craft or class have decided that that they no longer
want that representative. The RLA encourages collective bargaining
between employee representative and the employer, but it gives
employees the absolute right to choose to reject representation. The
Board is simply giving employees who have rejected representation an
additional year to experience their workplace and their direct
relationship with their employer before another representation dispute
can be raised in their work group. The two year
[[Page 35987]]
limitation is on the time to file an application. Since the
authorization cards can be dated by employees up to one year from the
date of the filing of the application, employees, if they so choose,
can begin organizing a year after decertification. Commenters in
support of the rule noted that without this rule change, organizing can
begin the day after an election which results in a decertification, and
employees are afforded no period of repose at all.
A former practitioner and advocate before the NMB opposed to the
proposed change states in his comment that a two year limitation
``neither applies to the NMB `indirect' decertification process nor to
any decertification provisions in other federal statutes or
regulations.'' The Board does not find these arguments persuasive. As
previously discussed the RLA makes no provision regarding limitations
on applications. These rules have been, and remain, an exercise of the
Board's discretion. The Board notes that it is equally true that a two
year limitation following certification is not provided in other
federal statues or regulations. Under the NLRA, the period of repose is
at least one year for certification or decertification. Under the FLRA,
the election bar is also one year for certification or decertification.
NMB also applies a two year limitation regardless of whether the
certification is a newly certified representative or the certification
of an incumbent union following a raid or merger. Further, under the
current indirect decertification, if a straw man is certified, the
Board applies the two year limitation. If that straw man does not
formally disclaim interest, an application for that same craft or class
of employees at the same carrier would not be accepted by the Board for
two years following the certification.
Under the proposed rule change, the additional time limit on
applications will be limited to applications seeking to decertify an
incumbent representative. It would be clear upon filing of the
application that the intent of employees is to seek decertification. As
discussed above, such an application filed by an employee or group of
employees will be supported by a showing of interest stating that
employees no longer wish to be represented by their incumbent union. A
decertification election will be held where only the incumbent union,
the no representation option, and the write-in would appear on the
ballot. If a majority of employees vote for representation or if a
majority of employees vote for no representation, there will be a two
year limitation on applications seeking to represent the same craft or
class at the same carrier. If the incumbency of an organization is
challenged in a raid--by another organization or individual seeking to
represent that craft or class--and, in the election a majority of
employees fail to vote for representation, the one year limitation will
continue to apply as it will if a currently unrepresented employee
group does not vote for representation.
IV. Conclusion
Based on the rationale in the proposed rules and this rulemaking
document, the Board hereby adopts the provision of the proposal as a
final rule with the clarification in the text of Section 1203.2 in the
final rule to require that an employee may file a decertification
application. This rule will apply to applications filed on or after the
effective date.
Dissenting Statement of Chairman Puchala
Chairman Puchala dissented from the action of the Board majority in
adopting this rule. Her reasons for dissenting are set forth below.
Congress enacted the Railway Labor Act (RLA or Act), 45 U.S.C. 151,
et seq., to create a comprehensive statutory scheme to prevent
disruptions of interstate commerce through the prompt resolution of
labor disputes between rail and air carriers and their employees. In
Virginia Railway Co. v. System Federation No. 40, the Supreme Court
articulated the purposes and objectives of the Act in terms of the duty
to bargain, noting that the RLA's ``major objective is the avoidance of
industrial strife, by conference between the authorized representatives
of employer and employee,'' and its ``provisions are aimed at the
settlement of industrial disputes by the promotion of collective
bargaining between employers and the authorized representatives of
their employees.'' 300 U.S. 515, 547-548 (1937). Thus, the RLA is a
collective bargaining statute and its underlying philosophy is almost
total reliance on collective bargaining for the settlement of labor-
management disputes.
I dissent from the rule published today because the changes my
colleagues have adopted are unnecessary and contrary to the purposes of
the Act. In my view, these changes will impede rather than support the
mission of the Agency and the objectives of the Act.
The National Mediation Board (NMB or Board) administers the RLA,
the oldest extant labor relations statute in the United States and it
has been remarkably successful in fulfilling its statutory mission of
insuring the right of railroad and airline employees to organize into
free and independent labor organizations, of assisting labor
representatives and carrier management in the prompt settlement of
disputes over rates of pay and terms of work, of resolving grievances
over the terms of existing contracts, and of accomplishing these aims
without the interruption of transportation services essential to
interstate commerce.
As an initial matter, I note and my colleagues concede, the RLA
does not have an express statutory provision for decertification like
the National Labor Relations Act (NLRA). From 1935 to 1947, the NLRA
also lacked a statutory procedure for decertification. Congress,
through the Taft-Hartley Act, provided a statutory mechanism for
employees to seek decertification of their current bargaining
representative. 29 U.S.C. 159(c)(1)(A). Congress has taken no similar
action with regard to the RLA. Not in the 1950 amendments, when
Congress referenced the Taft-Hartley Act in adding Section 2, Eleventh
to permit the negotiation of union shop agreements. H.R. Rep. No. 81-
2111, at 4 (1950). Not in 2012, when Congress provided for a 50%
showing of interest in representation applications and mandated
specific provisions for run-off elections. FAA Modernization and Reform
Act of 2012, Public Law 112-95 (2012 FAA Modernization Act). There have
been no changed circumstances since 2012 that would necessitate or
justify Board or Congressional action with respect to a decertification
rule. In my view, the addition of a direct decertification procedure to
the NMB's representation procedures is a step to be taken by Congress
through legislation and not by the Board through rulemaking.
While the RLA lacks a statutory decertification procedure, the
existing representation procedures allow employees to get
representation, change representation, and reject representation. As
many of the commenters opposed to the rule observed, the Board already
provides a method for employees to decertify their incumbent union. In
the 2010 Representation Rulemaking, the NMB declined to reexamine its
decertification procedures and noted that its ``existing election
procedures allow employees to rid themselves of a representative.'' 75
FR 26,078. The 2010 Rulemaking allowed employees to affirmatively cast
a ballot for ``no union'' and eliminated the most confusing step in the
``straw man'' process. 75 FR 26079. The election statistics submitted
with the comments of the Transportation Trades
[[Page 35988]]
Department of the AFL-CIO (TTD) demonstrate that employees can and do
utilize the existing decertification process to become unrepresented.
As the TTD further observed, while Board clearly receives more
applications seeking the certification of a representative than the
decertification, this represents a longstanding desire of employees in
the air and rail industry to have union representation in the workplace
rather than a problem with the NMB's election process.
In adopting a two year bar to representation applications following
decertification, the majority ignores well-settled Board precedent
recognizing the complexities unions face in establishing collective
bargaining relationships and concluding labor agreements. The Board has
long recognized that labor stability is enhanced by providing a
reasonable period of time to establish a collective bargaining
relationship. Jet Am., 11 NMB 173 (1984). Instead, my colleagues rely
on a false equivalence between certification of a collective bargaining
representative and decertification resulting in the return to at will
employment.
My own experience in various labor-management capacities has
allowed me to witness firsthand the monumental tasks unions face in
establishing and maintaining quality representation for their members.
This task is compounded by the fact that, under the RLA, unions
represent nation-wide crafts or classes, namely all the employees
performing the same work for the same employer regardless of their
geographic location. This system-wide representation automatically
expands the number of regional issues the union must be prepared to
address in collective bargaining. Once certified, the union must
continue to generate system-wide employee interest in establishing a
template of representation that is reflective of member priorities and
gives voice to member concerns. The union's constitution and bylaws,
which reflect the rights of individual members, are reviewed and
explained. Volunteer employees are appointed and elected to leadership
positions on numerous committees including bargaining committees and
health and safety committees.
Once certified, the union assumes the responsibility to initiate
collective bargaining--often counted in years under the RLA--by
training volunteers to work with union staff to set the bargaining
agenda through a series of member surveys, meetings, and round table
discussions. Even before bargaining commences, an elaborate
communications system is launched to insure internal communications
keep members at all work locations informed of the status of collective
bargaining. Once a tentative agreement is reached, it must be reviewed
and approved by the members. The ratified contract is enforced by a
grievance procedure with an arbitration clause designed to protect
individual and collective rights. In the rail and airline industries, a
safety culture is promoted by the union through joint labor and
management initiatives as well as separate union sponsored health and
safety programs. Union activities are designed to promote the workers'
agenda by creating opportunities for management to hear members' voices
on workplace issues. This dialogue at labor-management meetings creates
opportunities for both labor and management to improve the relationship
and create ideas that further the goals of both parties. These
obligations of bargaining and resolving grievances are all part of the
statutory framework that Congress created. Section 2, First of the RLA
states,
It shall be the duty of all carriers, their officers, agents,
and employees to exert every reasonable effort to make and maintain
agreements concerning rates of pay, rules, and working conditions,
and to settle all disputes, whether arising out of the application
of such agreements or otherwise, in order to avoid any interruption
to commerce or to the operation of any carrier growing out of any
dispute between the carrier and the employees thereof.
45 U.S.C. 152, First. The Act's emphasis is on the full acceptance of
that bilateral relationship and the free exercise of both parties'
rights in determining rates of pay, rules, and working conditions with
the duty imposed to seek to avoid interruptions to commerce.
What happens when an incumbent union is decertified? The carrier
develops and implements the rules of the workplace. It may voluntarily
seek employees' views and participation on workplace issues, but is not
required to do so. The union and its former members lack standing to
bargain and maintain contracts and initiate and progress grievances.
All rights reflected in the collective bargaining contracts are
extinguished unless required by law or regulation.
Following decertification, obligations are removed rather than
assumed. There is no longer an obligation to bargain. There is no
longer an obligation to administer or enforce a collective bargaining
agreement. There is no role for the NMB in mediation. And in my view,
there is no statutory basis for imposing an administrative restriction
of two years on employees' freedom to choose a representative following
a decertification election that results in no representative. A one
year election bar is sufficient for employees to witness the loss of
their collective bargaining rights and the loss of stability that
accompanies that forfeiture.
I believe it is punitive to deny access to RLA election procedures
for two years given the increasing number of furloughs in the freight
rail industry as carriers move to a new business model and as airline
employees contend with the residual effects of widespread bankruptcies,
mergers, and reorganizations. The negative consequences of
decertification and stripping employees' collective bargaining rights
goes beyond the potential loss of wage growth \12\ to a lack of ability
to protect negotiated provisions for health and retirement benefits,
seniority rights that determine work hours and location, and furlough
protections that give employees rights to return to their former
positions. The rail and airline industries have a union density rate of
60-80% that I believe is largely due to a long history of negotiating
protections for those actively employed as well as retirees.
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\12\ According to the Bureau of Labor Statistics non-union
workers only make 82% of what union workers are paid. U.S. Dep't of
Labor, Bureau of Labor Statistics, Economic News Release, USDL-19-
0079 (Jan. 18, 2019), https://www.bls.gov/news.release/union2.htm.
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The two year election bar which dictates a two year break in
collective bargaining is also bad public policy. The RLA is designed to
avoid interruption of interstate commerce. The primary tool the NMB
uses to protect the public from interruptions of service is mandatory
mediation of collective bargaining agreements between unions and air
and rail carriers. This is why the RLA is predisposed to promote
collective bargaining. This governmental exercise of control over the
labor-management relationship requires disputing parties to enter NMB
mandatory mediation for an ``almost interminable'' amount of time
before either party can exercise self-help. Detroit & Toledo Shore Line
R.R. Co. v. United Transp. Union, 396 U.S. 142, 149 (1969). A series of
additional steps, a 30 day cooling-off period, a potential Presidential
Emergency Board that recommends settlement terms followed by additional
cooling off periods, and finally intervention by Congress under the
Commerce Clause of the Constitution are all designed to promote the
public's interest to avoid interruption of interstate commerce.
[[Page 35989]]
Consequently, I disagree with the Board majority's decision to make
this change.
Chairman Linda Puchala.
Executive Order 12866
This rule is not a significant rule for purposes of Executive Order
12866 and has not been reviewed by the Office of Management and Budget.
Regulatory Flexibility Act
As required by the Regulatory Flexibility Act, the NMB certifies
that these regulatory changes will not have a significant impact on
small business entities. This rule will not have any significant impact
on the quality of the human environment under the National
Environmental Policy Act.
Paperwork Reduction Act
The NMB has determined that the Paperwork Reduction Act does not
apply because this interim regulation does not contain any information
collection requirements that require the approval of the Office of
Management and Budget.
List of Subjects
29 CFR Part 1203
Air carriers, Labor management relations, Labor unions, Railroads.
29 CFR Part 1206
Air carriers, Labor management relations, Labor union, Railroads.
For the reasons stated in the preamble, the National Mediation
Board amends 29 CFR parts 1203 and 1206 as set forth below:
PART 1203--APPLICATIONS FOR SERVICE
0
1. The authority citation for part 1203 continues to read as follows:
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
0
2. Revise Sec. 1203.2 to read as follows:
Sec. 1203.2 Investigation of representation disputes.
Applications for the services of the National Mediation Board under
section 2, Ninth, of the Railway Labor Act to investigate
representation disputes among carriers' employees may be made on
printed forms NMB-3, copies of which may be secured from the Board's
Representation and Legal Department or on the internet at www.nmb.gov.
Such applications and all correspondence connected therewith should be
filed in duplicate and the applications should be accompanied by signed
authorization cards from the employees composing the craft or class
involved in the dispute. The applications should show specifically the
name or description of the craft or class of employees involved, the
name of the invoking organization or employee seeking certification, or
the name of the employee seeking decertification, the name of the
organization currently representing the employees, if any, and the
estimated number of employees in each craft or class involved. The
applications should be signed by the chief executive of the invoking
organization, some other authorized officer of the organization, or by
the invoking employee. These disputes are given docket numbers in the
series ``R''.
PART 1206--HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR
ACT
0
3. The authority citation for part 1206 continues to read as follows:
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
0
4. Amend Sec. 1206.1 by revising paragraph (b) to read as follows
Sec. 1206.1 Run-off elections.
* * * * *
(b) In the event a run-off election is authorized by the Board, the
two options which received the highest number of votes cast in the
first election shall be placed on the run-off ballot. No blank line on
which voters may write in the name of any organization, individual, or
no representation will be provided on the run-off ballot.
* * * * *
0
5. Amend Sec. 1206.2 by revising paragraph (a) to read as follows:
Sec. 1206.2 Percentage of valid authorizations required to determine
existence of a representation dispute.
(a) Upon receipt of an application requesting that an organization
or individual be certified as the representative of any craft or class
of employees, or to decertify the current representative and have no
representative, a showing of proved authorizations (checked and
verified as to date, signature, and employment status) from at least
fifty (50) percent of the craft or class must be made before the
National Mediation Board will authorize an election or otherwise
determine the representation desires of the employees under the
provisions of section 2, Ninth, of the Railway Labor Act.
* * * * *
0
6. Amend Sec. 1206.4 by revising paragraph (a) to read as follows:
Sec. 1206.4 Time Limits on Applications.
* * * * *
(a) For a period of two (2) years from the date of a certification
or decertification covering the same craft or class of employees on the
same carrier, and
* * * * *
Sec. Sec. 1206.5 through 1206.7 [Redesignated as Sec. Sec. 1206.6
through 1206.8]
0
7. Redesignate Sec. Sec. 1206.5 through 1206.7 as Sec. Sec. 1206.6
through 1206.8 and add new Sec. 1206.5 to read as follows:
Sec. 1206.5 Decertification of representatives.
Employees who no longer wish to be represented may seek to
decertify the current representative of a craft or class in a direct
election. The employees must follow the procedure outlines in Sec.
1203.2.
Dated: July 23, 2019.
Mary L. Johnson,
General Counsel.
[FR Doc. 2019-15926 Filed 7-25-19; 8:45 am]
BILLING CODE 7550-01-P