Labor Relations Counsel - Legal Insight into Labor Relations Developments

The National Mediation Board (NMB) has issued a proposed rule that would implement the changes to existing representation dispute and election procedures in the railway and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Signed into law on February 14, 2012, the FAA Act included significant restrictions over airline and railway union organizing. Specifically, the Act amended the Railway Labor Act (RLA) by: (a) specifying that the NMB must provide an opportunity for public hearing regarding any significant rules; (b) requiring that in any runoff election for which there are three 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; (c) raising the showing of interest threshold for elections to not less than 50% (up from 35%) of the employees in the craft or class; and (d) imposing certain review and auditing requirements on the NMB’s programs and expenditures. To this end, the proposed rule published in the May 15, 2012 edition of the Federal Register would make changes to existing NMB rules regarding run-off elections, showing of interest for representation elections, and the NMB’s rulemaking proceedings to conform to the FAA Act provisions.

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By Peter Petesch

In a move consistent with organized labor’s push for an accelerated collective bargaining process for airlines and railroads, the National Mediation Board (NMB) announced the implementation of its expedited mediation project. (pdf) The new program is designed ostensibly to move the mediation process – whose purpose is to resolve collective bargaining disputes in the airline and railroad industries – along. In a press release, Larry Gibbons, NMB Director for Mediation, said the program was in response to a report (pdf) issued in 2010 by the Dunlop II Committee, a joint labor-management committee formed to examine the internal functions, policies and procedures of the NMB and make recommendations for procedural or policy changes. Gibbons explained that the report “...recommended, among other things, that case management strategies be developed to help address [mediation] disputes in a timely and methodical manner.” From this general recommendation in Dunlop II, the NMB developed protocols for expedited mediation. The initiative stops far short of recommendations principally from unions for explicit time limits on mediation. Yet, the initiative works to dispel the perception held by some that mediation is an endless process.

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On Thursday, the Senate, by a 43 to 56 vote, failed to approve the resolution (S. J. Res. 30) introduced by Sen. Johnny Isakson (R-GA) that sought to reverse the new National Mediation Board (NMB) election rule (pdf) that upended more than 75 years of established procedure. Such a resolution of disapproval, submitted under the Congressional Review Act, allows Congress to overturn rules issued by administrative agencies. Had the Senate approved the resolution, it would still have required the President’s signature or veto.

The NMB’s decision to change its election rule has been highly contentious. Under the NMB’s prior long-standing election approach, the outcome was determined by a majority of employees eligible to vote in representation elections. As a result, employees choosing not to participate are effectively viewed as “no union” votes. The NMB’s new rule, which took effect on July 1 despite an ongoing legal challenge, changes this policy by basing the voting outcome on the majority of those who actually vote, which is closer to the practice in non NMB-governed industries. Sen. Isakson pointed out during the debate on the resolution, however, that unlike similar situations governed by the National Labor Relations Act (NLRA), the NMB does not provide for union decertification.

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