Last month, the National Mediation Board (NMB) published a final regulation making it easier for unions to organize employers in the airline and rail industries.
The regulation was adopted on a 2-1 party line vote with a sharp dissent from NMB Chair Elizabeth Dougherty. She accused her fellow Board memebrs of failing to take the public comment into account, and of failing to present a plausible justification for
the rule change.
She also noted that it will become a fi nal rule with a
“write-in” option not presented or discussed as part of the rulemaking process.
“The National Mediation Board (NMB) is an independent federal agency . . . .” The
Air Transport Association and Delta Airlines are expected to fi le suit and request an
injunction against the fi nal rule.
The new regulation becomes effective on June 10, 2010. Under the new regulation, the NMB will certify a union if a simple majority of the workers who cast ballots vote in favor of union representation. The prior practice that had prevailed for 75 years was that a majority of the eligible voters in the bargaining unit had to vote in favor of representation in order for the union to be certified. Under the old rules, any worker who did not cast a ballot was effectively counted as a “no” vote. The new rule allows a minority of the members of a bargaining unit to vote-in a union.
This new rule brings the NMB policies for Railway and Labor Act elections into conformity with the labor law standards that apply under the National Labor Relations Act (NLRA). The problem with the new rule is that NMB did not change its current decertification and run-off procedures. These procedures continue to differ substantially from those under the NLRA. More importantly, the decertification process is considerably more onerous than the new certification process. This means that if a concerned minority is able to certify the union due to low voter turn-out, the same low voter turn-out might actually prevent a majority from decertifying the union! Chairman Dougherty said changing that enacting the rule without a formal decertification process “reveals a bias in favor of representation
and is fundamentally unfair.”
The new rules go into effect on June 10.