Federal Register: November 3, 2009 (Volume 74, Number 211)
DOCID: fr03no09-20 FR Doc E9-26437
NATIONAL MEDIATION BOARD
National Mediation Board
CFR Citation: 29 CFR Parts 1202 and 1206
Docket ID: [Docket No. C-6964]
RIN ID: RIN 3140-ZA00
NOTICE: PROPOSED RULES
DOCID: fr03no09-20
DOCUMENT ACTION: Proposed rule with request for comments.
SUBJECT CATEGORY:
Representation Election Procedure
DATES: NMB must receive comments on or before January 4, 2010.
DOCUMENT SUMMARY:
As part of its ongoing efforts to further the statutory goals of the Railway Labor Act, the National Mediation Board (NMB or Board) is proposing to amend its Railway Labor Act rules to provide that, in representation disputes, a majority of valid ballots cast will determine the craft or class representative. The NMB believes that this change to its election procedures will provide a more reliable measure/ indicator of employee sentiment in representation disputes and provide employees with clear choices in representation matters.
SUMMARY:
Representation Election Procedure
SUPPLEMENTAL INFORMATION
Under Section 2, Ninth of the Railway Labor Act (RLA or Act), 45 U.S.C. 152, Ninth, it is the NMB's duty to investigate representation disputes ``among a carrier's employees as to who are the representatives of such employees * * * and to certify to both parties, in writing * * * the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier.'' Upon receipt of the Board's certification, the carrier is obligated to treat with the certified organization as the employee's bargaining representative.
The RLA authorizes the Board to hold a secret ballot election or employ ``any other appropriate method'' to ascertain the identities of duly designated employee representatives. 42 U.S.C. 152, Ninth. As the Supreme Court has noted, ``not only does the statute fail to spell out the form of any ballot that might be used but it does not even require selection by ballot. It leaves the details to the broad discretion of the Board with only the caveat that it `insure' freedom from carrier interference.'' Bhd. of Ry. and S.S. Clerks v. Assn. for the Benefit of NonContract Employees, 380 U.S. 650, 668669 (1965).
The Board's current policy requires that a majority of eligible voters in the craft or class must cast valid ballots in favor of representation. This policy is based on the Board's original construction of Section 2, Fourth of the RLA, which provides that, ``[t]he majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class * * *.'' 45 U.S.C. 152, Fourth. This ``interpretation was made, however, not on the basis of legal opinion and precedents, but on what seemed to the Board best from an administration point of view.'' 1 NMB Ann. Rep. 19 (1942).
The Board has since maintained that policy, but believes that under its broad statutory authority, it may also reasonably interpret Section 2, Fourth to allow the Board to certify as collective bargaining representative any organization which receives a majority of votes cast in an election. In Virginian Railways Co. v. Sys. Fed'n, 300 U.S. 515, 560 (1937), the Court stated that the words of Section 2, Fourth, ``confer the right of determination upon a majority of those eligible to vote, but is silent as to the manner in which that right shall be exercised.'' Congress left it to the Board to determine the manner in an exercise of its discretion and, as Attorney General Tom C. Clark noted in his 1947 opinion on this issue:
Under Section 2, Fourth, of the Railway Labor Act, the National
Mediation Board has the power to certify as collective bargaining
representative any organization which receives a majority of votes
cast at an election despite the fact that less than a majority of those eligible to vote participated in the election.
Majority Vote under the Railway Labor Act, 40 Op. Att'y Gen. 541
(1947). In reaching this conclusion, the Attorney General cited not
only the plain language of the Act and the Court's decision in
Virginian Railways, but also the legislative history of Section 2,
Fourth. The report of the Senate Committee on Interstate Commerce
stated specifically that this section provides ``that the choice of
representative of any craft shall be determined by a majority of the
employees voting on the question.'' Id. at 542 (quoting Sen. Rep. 1065,
73d Cong. 2d Sess., p. 2). The Attorney General noted that the language
of Section 2, Fourth appears to have been taken from a rule of the
United States Railroad Board (Railroad Board) acting under the labor
provisions of the Transportation Act of 1920 and that the Railroad
Board had held that a majority of ballots cast in an election were
sufficient to designate a representative. Id. at 541 n. 1. The Attorney
General further noted the similarity between the language of Section 2,
Fourth and Section 9(a) of the National Labor Relations Act (NLRA), 29
U.S.C. 159(a), which provides that, ``[r]epresentatives designated or
selected for the purposes of collective bargaining by the majority of
the employees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such unit for the
purposes of collective bargaining * * *.'' Under the NLRA, collective
bargaining representatives are certified on the basis of the majority
of ballots cast. The Attorney General also cited the statement in the
House Committee report on the bill that became the NLRA that ``the bill
is merely an amplification and further clarification of the principles
enacted into law by the Railway Labor Act and by Section 7(a) of the
National Industrial Recovery Act, with the addition of enforcement
machinery of familiar pattern.'' 40 Op. Att'y Gen. at 543 n.3 (quoting H. Rep. 1147, 74th Cong., 1st Sess., p. 3).
Finally, Attorney General Clark further observed the following: [W]hen the Congress desires that an election shall be determined by a majority of those eligible to vote rather than by a majority of those voting, the Congress knows well how to phrase such a requirement. For example, in Section 8(a)(3)(ii) of the National Labor Relations Act, as amended by the Labor Management Relations Act, the Congress has required that before any union shop agreement may be entered into, the National Labor Relations Board must certify `that at least a majority of the employees eligible to vote in such election have voted to authorize such labor organization to make such an agreement.'
Id. at 544. (emphasis in original).
Since 1935, the Board has reexamined its policy of certifying a
representative based on a majority of eligible voters on several
occasions, most recently in 2008. Delta Air Lines, Inc., 35 NMB 129
(2008). In each instance, the Board relied on an assertion that the
current election policy, which as noted above was adopted for
administrative rather than legal or factual reasons, maintains stable
labor relations and fulfills the obligations under Section 2, Ninth.
With regard to the stability in labor relations under the RLA, the
Board believes that this stability which is often associated with the
low incidence of strikes is more directly related to the Board's
mediation function than to its representation function. The Board
exercises a unique power under the RLA: The ability to determine the
duration of mediation and thus the timing of a release from mediation
and the potential opportunity for either side to engage in selfhelp.
Because of the mandatory nature of the mediation process under the RLA,
the parties are pressured to compromise their positions even though each may believe that its
[[Page 56752]]
original position was reasonable. The Supreme Court has recognized that
the Board's mediation process is designed to be ``almost interminable''
so that the parties are moved to compromise and settlement without
strikes or other economic disruptions. Detroit & Toledo Shore Line R. R. v. United Transp. Union, 396 U.S. 142, 149 (1969).
With regard to its obligations under Section 2, Ninth, the Board
notes that its current construction of Section 2, Fourth was adopted in
a much earlier era, under circumstances that differ markedly from those
prevailing today. During the 1920s and 1930s widespread company
unionism undermined collective bargaining and incited labor unrest. See
Pennsylvania R.R. v. Railroad Labor Bd., 261 U.S. 72 (1923).\1\ Between
1933 and 1935 some 550 company unions on 77 Class I railroads were
replaced by national unions. Benjamin Aaron, et al., The Railway Labor
Act at Fifty: Collective Bargaining in the Railroad and Airline
Industries, 26 (Charles M. Rhemus ed., 1977) (citing Leonard A. Lecht,
Experience Under Railway Labor Legislation 155 (New York 1955)). Labor
relations in the air and rail industries have progressed since the
early days of the RLA but many of the Board's election procedures have not.
\1\ This case involved the refusal by the Pennsylvania Railroad
to confer with the trade union which represented a majority of its
employees and instead proceeded to deal with a company union which
it had fostered and recognized as the workers' representatives. The
Board's precursor, the Railway Labor Board, ordered a new election
to determine the workers' choice of representative and the Railroad
refused to comply with this order. The Union sought an injunction to
keep the Railroad from enforcing its agreements with the company
union, but the injunction was denied. The Court upheld the denial on
the ground that the labor provisions of the Transportation Act
expressed only Congress' recommendations regarding collective
bargaining rights of railway employees. The RLA was enacted
following widespread dissatisfaction with the Transportation Act and
the lack of prohibitions on employer control of employees'
organization. Effect of the Railway Labor Act of 1926 Upon Company
Unions, 42 Harv. L. Rev. 108 (1928). The need for complete freedom
from carrier involvement in employees' selection of a collective
bargaining representative is expressed in the General Purposes
Clause of the RLA which states that one of the purposes of the Act
is ``to provide for the complete independence of carriers and of
employees in the matter of self organization.'' 45 U.S.C 151a.
Under the existing election procedure, there is no opportunity for an employee to vote ``no'' or cast a ballot against representation. Abstaining from voting, for whatever reason, is counted by the Board as a vote against representation. Thus, under current election procedures, the Board determines that the failure or refusal of an eligible voter to participate in an NMBconducted election is the functional equivalent of a ``no union'' vote. In these instances, the Board's current election procedure appears to be at odds with the modern participatory workplace philosophy that has evolved in the air and rail industries and the basic principles of democratic elections. Air and rail labor and management now go to great lengths to encourage employee participation in workplace matters. See, e.g., Bucking Trend, Airline Keeps Repairs InHouse, NPR, All Things Considered, October 20, 2009, http://www.npr.org/templates/ transcript/ transcript.php?storyid=113971588; A New Approach for Airlines, Wall St. J., May 12, 2008, at R3. http://online.wsj.com/article/ SB121026578961977661.html; The Proposed Delta/Northwest Airlines Merger: The Impact on Workers: Hearing Before the House Education and Labor Subcommittee on Health, Employment, Labor, and Pensions (testimony of Robert Kight, Vice President, Compensation and Benefits Delta Air Lines) 110th Cong. 56 (2008). http:// republicans.edlabor.house.gov/Media/File/Hearings/help/73008/Kight.pdf.
The proposed change, if adopted, should bring the Board's election process in line with industry developments and discourage employee non participation by giving every employee a chance to affirmatively express their preference for or against representation.
Further, to the Board's knowledge, few if any democratic elections are conducted in this manner. In our society, free choice is expressed on the basis of a majority of valid votes cast in an election. In Virginian Railway, the Court stated that, ``[e]lection laws providing for approval of a proposal by a specified majority of an electorate have been generally construed as requiring only the consent of the specified majority of those participating in the election. Those who do not participate `are presumed to assent to the expressed will of the majority of those voting.' '' 300 U.S. at 560 (internal citations omitted).
There are many reasons individuals do not vote in elections. Nonvoting can be a conscious choice and assigning those who choose not to vote a role in determining the outcome of an election is a type of compulsory voting, not practiced in our democratic system. A system of compulsory voting or assigning a position to those who choose not to vote denies individuals the right to abstain from participating in an election, a right available in other democratic elections in this country. In political elections, those who do not vote acquiesce to the will of those who choose to participate. To allow a contrary policy could allow those lacking the interest or will to vote to supersede the wishes of those who do take the time and trouble to cast ballots.
The Board's primary duty in representation disputes is to determine the clear, uncoerced choice of the affected employees and the Board believes that this duty can be better fulfilled by modifying its election procedures to rely on the choice of the majority of valid ballots cast in the election. This process will ensure that each employee vote, whether for or against representation, will be regarded with equal weight. The Board will no longer substitute its opinion for that of the employee and register the lack of a vote as a ``no'' vote.
If the proposed regulatory change is adopted, the Board will specify that in secret ballot elections conducted by the Board, the craft or class representative will be determined by a majority of valid ballots cast. The proposed change will also provide employees with an opportunity to vote ``no'' or against union representation.
The Board's proposed change will not affect the showing of interest requirements as set forth in 29 CFR 1206.2. For the sake of clarity, 29 CFR 1202.4 as revised is cited in full.
Chairman Dougherty dissented from the action of the Board majority in approving this proposed rule. Her reasons for dissenting are set forth below.
I dissent from the proposed rulemaking for several reasons. Our
current election rules have a long history and are supported by
important policy reasons. I do not believe there is any evidence or
legal analysis currently before the Board to support making the change
proposed by my colleagues. Serious questions exist about the Board's
statutory authority to make the rule change and its ability to
articulate a rationale for change that complies with the Administrative
Procedure Act (APA). Perhaps most importantly, the proposed rule makes
no reference to other requests the Board has received to consider
decertification and Excelsior list issues. For these and the following
reasons, I believe it is, at a minimum, premature to propose a rule
change of this magnitude, and a more prudent course of action would be
for the Board not to prejudge this issue, but rather to give all
interested parties an opportunity to comment on the request made by the
Transportation Trades Division of the AFLCIO (TTD), together with subsequent requests regarding
[[Page 56753]]
decertification and other issues, before making any proposals.
The rule in question has been applied consistently for 75 years including by Boards appointed by Presidents Roosevelt, Truman, Johnson, Carter, and Clinton. Making this change would be an unprecedented event in the history of the NMB, which has always followed a policy of making major rule changes with consensus and only when required by statutory amendments or essential to reduce administrative burdens on the agency. Chamber of Commerce of the United States, 14 NMB 347, 356 (1987). Regardless of the composition of the Board or the inhabitant of the White House, this independent agency has never been in the business of making controversial, onesided rule changes at the behest of only labor or management.
No one, including my colleagues, has suggested that the Railway
Labor Act (RLA) mandates the change in the proposed rule or that the
rule change is necessary to reduce administrative burdens on the
Agency. In fact, a serious question exists as to whether the NMB even
has the statutory authority to make this reversal. A Board appointed by
President Carter unanimously decided that the Board is of the view that
it does not have the authority to administratively change the form of
the ballot used in representation disputes and that such a change, if appropriate, should be made by Congress.\2\
\2\ In addition, the only court ever to rule specifically on the
question of whether the Board has the authority to certify a
representative where less than a majority of the eligible voters
participates in an election found that it did not. Virginian
Railways Co. v. Sys. Fed'n, 11 F. Supp. 621, 625 (E.D. Va 1935).
That ruling was not appealed and no court has ever specifically held that the Board has this authority.
I also believe that my colleagues have not articulated a rationale for this rule change as required by the APA. With this notice of proposed rulemaking, my colleagues seek to radically depart from long standing, consistently applied administrative practices. Under the APA, a change in such a longstanding policy must be supported by a strong rationale. While administrative agencies are not bound by prior policy, there is a duty to explain adequately ``departures from agency norms.'' PreFab Transit Co. v. Interstate Commerce Comm'n, 595 F.2d 384, 387 (7th Cir. 1979). A change in the majority voting rule must be based on more than the preferences of the current Board. ``An agency's view of what is in the public interest may change either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis * * * [I]f it wishes to depart from its prior policies, it must explain the reasons for its departure.'' Panhandle E. Pipeline Co. v. Fed. Energy Regulatory Comm'n, 196 F.3d 1273, 1275 (D.C. Cir. 1999) (internal citations omitted). ``Conclusory statements'' and ``conjecture cannot substitute for a reasoned explanation'' for such a change in precedent. Graphic Comm. Int'l Union v. SalemGravure Div. of World Color Press, Inc., 843 F.2d 1490, 1494 (DC Cir.)
There is nothing in the proposed rule to support changing this
longstanding Board tradition. The Board has repeatedly articulated
important policy reasons for our current majority voting rule
including our duty to maintain stability in the air and rail
industries. 16 NMB Ann. Rep. 20 (1950); Chamber of Commerce of the
United States, 14 NMB 347, 362 (1987). This duty stems directly from
our statutory mandate to ``avoid interruption to commerce or the
operation of any rail or air carrier.'' Id. The Majority attempts to
ignore this important statutory mandate by claiming that only our
mediation function is relevant to keeping stability in the air and rail
industries. This argument has no merit. The statute does not limit our
mandate to only mediation, and it is disingenuous to suggest that our
representation function does not play an important role in carrying out
our duty to maintain stability in these industries. Moreover, the Board
has repeatedly in the past raised this policy issue in conjunction with
our representation function. 16 NMB Ann. Rep. 20 (1950); Chamber of
Commerce of the United States, 14 NMB 347, 362 (1987). As the Board
stated in 1987, ``[a] union without majority support cannot be as
effective in negotiations as a union selected by a process which
assures that a majority of employees desire representation.'' Chamber
of Commerce of the United States, 14 NMB 347, 362 (1987). Assuring that
a representative certified by the NMB enjoys true majority support is
even more important given that union certifications under the RLA must
cover an entire transportation system \3\often over enormously wide
geographic areas with large numbers of people. I also note 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.\4\
\3\ It is well settled that the Board applies the term ``craft
or class'' under the RLA on a systemwide basis. Delta Air Lines
Global Servs., 28 NMB 456, 460 (2001); American Eagle Airlines, 28
NMB 371, 381 (2001); American Airlines, 19 NMB 113, 126 (1991);
America West Airlines, Inc., 16 NMB 135, 141 (1989); Houston Belt & Terminal Railway, 2 NMB 226 (1952).
\4\ As the Supreme Court has long recognized, ``that the
National Labor Relations Act cannot be imported wholesale into the railway labor arena. Even rough analogies must be drawn
circumspectly, with due regard for the many differences between the
statutory schemes.'' Railroad Trainmen v. Jacksonville Terminal Co., 394 US 369, 383 (1969).
The only other rationale offered by my colleagues is changed circumstances and an increasingly participatory workforce. I fail to see how these changes, if true, support changing a 75yearold practice based on important statutory mandates that have not changed. Moreover, any argument that changed labor relations support changing our election practices are definitively rebutted by the facts: The percentage of rail and air employees who are union members is dramatically higher than in other industries, and the percentage of air and rail employees participating in elections has increased by almost 20% over the last decade.
The Majority has not articulated a sufficient rationale for making the change. Moreover, the request from the Transportation Trades Division of the AFLCIO (TTD) that prompted this rule change was made in an informal, twopage letter with no legal analysis, no mention of changed conditions, and no discussion of our statutory authority. In light of these facts, the Board's history, and the lack of support for the change, I don't see how the Board could propose a rule change this controversial and divisive without the benefit of a full briefing from all interested parties.
I also dissent because I am concerned about the timing of the Majority's proposal. The Board recently established a bipartisan, labormanagement committee (which we are calling Dunlop II) to examine the RLA and the NMB and recommend changes. The committee has not yet delivered its report. In my view, it would be premature and irresponsible for the Board to propose any change to one of its most longstanding procedures before this committee has made its report.
Moreover, the Board has received requests to begin representation
proceedings involving close to 40,000 employees at two major airlines
the largest group of elections in the history of the NMB. I believe it
is harmful to the reputation and credibility of the Board for it to
take a position in favor of a change to our election rules during these
elections, which the Majority does by proposing this change. As I have
previously stated, I believe the more impartial and responsible approach
[[Page 56754]]
would be to seek comment on the TTD's request, together with other
related issues, so that we could have the benefit of a full briefing on
all the issues before making proposals in favor of the change.
I also dissent because the Majority's proposed rule does not
request comment on several related issues that have been raised by our
constituents in connection with the TTD's request. I believe firmly
that the Board should not consider the TTD petition in a vacuum.
Several parties have requested that we consider a decertification
procedure, noting that a minority voting rule necessitates some sort of
decertification mechanism or else it deprives employees of the right to
be unrepresented. We have also received a request to consider providing
Excelsior lists to unions. And there are also other areas of our
representation policy and procedures that would be implicated by a
change in voting rules. For example, we currently require a union
seeking to challenge an incumbent union to submit authorization cards
from more than 50% of eligible voters. If we were to change our voting
rules to permit fewer than 50% of eligible voters to select a
representative, we must contemporaneously consider whether we should
still require a greater than 50% showing of authorization cards to
challenge an incumbent union. In order to be fair to all interested
parties, I believe that Board must consider all of these issues
together, and I am surprised that my colleagues have ignored these
other requests and are addressing only the TDD's request. I believe the
Board should have requested comment on all relevant issues before
making any proposals and I encourage interested parties to submit comments addressing these other issues.
Chairman Elizabeth Dougherty.
Paperwork Reduction Act
This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).
Regulatory Flexibility Act
The NMB certifies that this rule will not have a significant impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
National Environmental Policy Act
This proposal will not have any significant impact on the quality of the human environment under the National Environmental Policy Act (42 U.S.C. 4321 et seq.).
List of Subjects in 29 CFR Parts 1202 and 1206
Air carriers, Labor management relations, Labor unions, Railroads.
Accordingly, as set forth in the preamble, the NMB proposes to amend 29 CFR chapter X as follows:
PART 1202RULES OF PROCEDURE
1. The authority citation for 29 CFR Part 1202 continues to read as follows:
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151163.
2. Section 1202.4 is revised to read as follows: Sec. 1202.4 Secret ballot.
In conducting such investigation, the Board is authorized to take a
secret ballot of the employees involved, or to utilize any other
appropriate method of ascertaining the names of their duly designated
and authorized representatives in such manner as shall insure the
choice of representatives by the employees without interference,
influence, or coercion exercised by the carrier. Except in unusual or
extraordinary circumstances, in a secret ballot the Board shall
determine the choice of representative based on the majority of valid ballots cast.
PART 1206HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR ACT
3. The authority citation for 29 CFR Part 1206 continues to read as follows:
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151163. Sec. 1206.4 [Amended ]
4. Amend Sec. 1206.4(b)(1) by removing the phrase ``less than a
majority of eligible voters participated in the election'' and by
adding in its place the phrase ``less than a majority of valid ballots cast were for representation.''
Dated: October 28, 2009.
Mary Johnson,
General Counsel, National Mediation Board.
[FR Doc. E926437 Filed 11209; 8:45 am]
BILLING CODE 755001P
FOR FURTHER INFORMATION CONTACT
Mary Johnson, General Counsel, National Mediation Board, 2026925050, infoline@nmb.gov.