[authors: M. Martin, Andrew McClintock]
Executive Summary: On May 22, the National Mediation Board (NMB) announced that it will hold a public hearing on June 19, 2012, and invited interested persons to share their views on its proposed rule changes relating to the amendments to the Railway Labor Act (RLA) in the Federal Aviation Administration Modernization and Reform Act of 2012. On May 15, the NMB issued a Notice of Proposed Rulemaking (NPRM) to revise the Board's election rules to comply with these amendments, which went into effect on February 14, 2012. The proposed rule addresses the NMB's rulemaking authority, the procedure for run-off elections, and the showing of interest required for an unrepresented craft or class. One twist, however, is that the NMB appears to be proposing a change in its procedures in the event that there is a tie between those voting for and those voting against representation. Under current practice, in such a situation the union's application would be dismissed. The NMB has proposed to hold a run-off (or more appropriately a re-run) election in the event of a tie.
Under the amendments to the RLA, the NMB's authority to make, amend or rescind its rules and regulations is now subject to the procedures of Section 553 of the Administrative Procedure Act (APA), as well as an additional public hearing requirement. The NPRM proposes to adopt this requirement with respect to the NMB's ability to amend or rescind its rules and regulations, and to provide a process by which an "interested person" may petition the NMB for issuance, amendment or repeal of an NMB rule or regulation. The APA's procedures will not apply to the NMB's interpretive rules, general statements of policy, or rules of agency organization, procedure, and practice. So, for example, the notice and comment and public hearing requirements are not applicable to the Board's revision of its Representation Manual.
In light of the RLA amendments, the NMB proposes to change its procedure for conducting run-off elections. The proposed rule states "[i]f in an election among any craft or class no option receives a majority of the legal votes cast, or in the event of a tie vote, the Board shall authorize a run-off election." The NMB will now hold a run-off election between the two highest vote-getters if no ballot option receives a majority, which could include "no representation." Previously, "no representation" was not an option in a run-off election, even if that option had received the most or second-most votes during the initial election. For example, if out of 100 votes cast, 46 voted for the union on the ballot, 5 wrote-in another representative, and 49 voted for no representation, a run-off would have been held between the union on the ballot and the write-in, even though the most votes cast were for "no representation." Under the amendments to the RLA and the proposed rule, a run-off under this scenario would be held between the union on the ballot and no representation, with no write-in option.
The NMB also proposes to codify its existing practice of restricting eligibility to vote in a run-off election to those who were eligible to participate in the initial election – i.e., anyone hired after the original eligibility cutoff date would not be eligible to participate in the run-off election.
Historically, because the RLA has required that a representative obtain a majority of votes to be certified, the NMB has dismissed the union's petition when the election resulted in a tie between those voting for representation and those voting against it. The NMB appears to be eliminating this longstanding practice with its proposed rule by requiring a run-off election in the event of a tie between the top two vote-getters. The NPRM does not state what would occur if the run-off election also ended in a tie. As the NMB appears to be creating a new standard, carriers submitting comments to the NMB should consider seeking clarification on this issue.
The proposed rule increases the showing of interest requirement for an unrepresented craft or class to present authorization cards from 50% of the craft or class. This requirement now applies to both unrepresented and represented groups.
Importantly, the Board requests comments regarding the impact of the new 50% showing of interest requirement in the context of single-carrier representation disputes following a merger.
If you have any questions regarding this Alert, please contact the authors, Blake Martin, email@example.com, or Andy McClintock, firstname.lastname@example.org, or the Ford & Harrison attorney with whom you usually work.