On Tuesday, the National Mediation Board (NMB) published in the Federal Register a proposed rule (pdf) to amend its representation election procedure. Upsetting decades of settled policy, Members Harry Hoglander and Linda Puchala, former union officials, have launched a full-court press intended to make it easier for labor organizations to expand union membership in the air and rail industries.

Under the existing and well-settled approach, a majority of employees eligible to vote in representation elections determines the outcome of the election. So, in effect, employees who chose not to participate are counted as “no union” votes. The proposed rule would change this policy to base the voting outcome on the majority of those who actually vote, as is the practice in non NMB-governed industries.

Among those raising serious concerns about the proposed rule change is NMB Chairman Elizabeth Dougherty. In a strongly worded dissent – and in a separate letter to members of Congress (pdf) – Chairman Dougherty questions, among other things, the NMB’s statutory authority to make this rule change in the first instance. Dougherty further emphasizes that this rule has been in place for 75 years, and that making this change “would be an unprecedented event in the history of the NMB.” She also notes that

there is no process for decertifying a union under the RLA. These unique aspects of the RLA do not exist under the National Labor Relations Act or elsewhere, and they render irrelevant comparisons between the RLA and other election procedures.

It is no coincidence that Hoglander and Puchala have chosen this moment to “fix” the NMB election process. Elections involving thousands of employees at Delta and Continental Airlines are pending, and organized labor wants to maximize its chances of winning. Shifting the election outcome in the manner proposed by Hoglander and Puchala would increase the likelihood of union victories in these votes. Ironically, the change will also increase the likelihood that these election results will be thrown out by the courts.

Beyond its friends at the NMB, organized labor has found further support for its goals from certain members in Congress. Last week, Rep. James Oberstar (D-Minn.), Chairman of the House Committee on Transportation and Infrastructure, and Rep. George Miller (D-Calif.), Chairman of the House Committee on Education and Labor, sent a joint letter (pdf) to the NMB calling for the election policy change. In this letter, Reps. Oberstar and Miller stated:

We see no convincing policy reason to require an absolute majority of all eligible voters in a unit to cast a “yes” vote for representation; and see no reason to continue to subject aviation and rail workers to this undemocratic process. The NMB should amend its Representation manual by updating its election procedures to provide that a majority of those voting shall determine the outcome. This change will help the NMB to effectuate the proposes of the Railway Labor Act, including ensuring employees’ full freedom of association.

Comments to this proposed rule must be made by January 4, 2010 and include the docket number: C-6964. These comments can be sent via mail or hand delivery to: National Mediation Board, 1301 K Street, NW., Ste. 250E, Washington, DC, 20005. Alternatively, comments can be made via the Federal eRulemaking Portal: http://www.regulations.gov, or the NMB website: www.nmb.gov. Comments can also be sent via facsimile: (202) 692-5085 or email: legal@nmb.gov. Comments must include the docket number in the subject line of the message.

Littler Mendelson’s Transportation Industry Practice Group, consisting of more than 30 attorneys who practice in the area of airline and railroad labor and employment law, will continue to follow this significant development and will provide further updates and commentary as events unfold.

Photo credit: ericsphotography