House Approves Measure that Places Restrictions on NMB Representation Elections

Updated: February 21, 2012

As expected, the House of Representatives approved the conference report to the Federal Aviation Administration (FAA) funding bill that includes significant restrictions over air and railway union organizing. The House voted 248-169 in favor of the report reconciling the House and Senate versions of the FAA Modernization and Reform Act of 2012 (H.R. 658), which reauthorizes the agency’s programs and provides its funding for a four-year period.

The House draft of the bill included a provision rescinding the controversial National Mediation Board (NMB) rule (pdf) that changed the agency’s 75-year-old representation election policy. Under the new rule, the outcome of representation elections is based on the majority of those who actually vote, effectively making it easier for employees in the rail and air industries to unionize. The Senate version did not contain the repeal language. Last month Senate Majority Leader Harry Reid (D-NV) and House Speaker John Boehner (R-OH) announced that they had reached a compromise regarding NMB elections. Specifically, the lawmakers agreed to remove the section calling for a repeal of the election rule in exchange for provisions to make the agency’s rulemaking process public and transparent and certain changes to the NMB’s election procedures. As discussed in the bill’s conference report, the provisions addressing rail and air union organizing are as follows:

  • Rulemaking Authority. The bill amends the Railway Labor Act (RLA) by specifying that the NMB must provide an opportunity for public hearing regarding any significant rules. Specifically, the bill adds a section stating that “the Mediation Board has authority from time to time to make, amend, and rescind, in the manner prescribed by section 553 of title 5, United States Code and after opportunity for a public hearing, such rules and regulations as may be necessary to carry out the provisions of this Act.”
  • Runoff Elections. The Railway Labor Act would be amended to require that in any runoff election for which there are 3 or more options (including the option of “no union”) on the ballot and none receives a majority of the valid votes cast, a second election would be held between the two options receiving the most votes. Under prior practice, the runoff election would include the top two union choices, even if the “no union” option received more votes than one of the union choices.
  • Showing of Interest. The bill would amend the RLA by raising the showing of interest threshold for elections to not less than 50 percent of the employees in the craft or class. The current threshold is 35 percent.
  • Evaluation and Audit of NMB. The measure includes provisions requiring the Comptroller General of the United States to evaluate and audit the NMB’s programs and expenditures at least once every 2 years. In addition, within 180 days of the bill’s enactment, the Comptroller General would be required “to review the processes applied by the Mediation Board to certify or decertify representation of employees by a labor organization and make recommendations to the Board and appropriate congressional committees regarding actions that may be taken by the Board or Congress to ensure that the processes are fair and reasonable for all parties.”

Despite the decision to drop the NMB rule repeal language, union supporters have been critical of the compromise election process provisions.

The Senate is scheduled to vote on the measure next week. Because the current FAA authorization bill is set to expire before the month is out, the legislation – with the NMB provisions intact – is expected to become law.

Update: On February 6, 2012, the Senate approved the conference report by a vote of 75-20. On February 14, 2012, President Obama signed this bill into law.

Photo credit:  MBPHOTO, INC.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.