Final rule regarding NMB election procedures will impose 50-percent showing of interest threshold on all representation petitions
The National Mediation Board, on Friday, December 21, published a
final rule amending its current regulations governing its election procedures. The final rule makes several changes to the NMB’s election procedures, but it is the NMB’s ruling on post-merger representation petitions that is sure to draw the most attention. In the final rule, the NMB has decided to require a 50-percent showing of interest in all representation petitions, including those spawned by mergers among carriers.
Background. On February 12, 2012, President Obama signed the Federal Aviation Administration and Modernization and Reform Act of 2012 into law. Among other things, that law changed the threshold needed to hold a representation election from 35 percent to 50 percent of the employees in a proposed unit. Controversially, the Act did not explicitly state whether the new threshold also applied to representation disputes stemming from a merger of two carriers.
The NMB had to amend its regulations to bring them into compliance with the Act. It published a notice of proposed rulemaking (NPRM) on May 15 and invited the public and interested parties to submit comments. It also held a hearing on the NPRM on June 19, 2012. Between invitations to submit comments, the NMB received approximately 17 comments on the NPRM, and in the final rule, the NMB attempts to answer what it deemed to be the most important of issues underlying the comments.
Petitions following a merger. Chief among those issues was whether the 50-percent threshold applies to post-merger representation petitions. Relying chiefly on comments made during the Senate floor debate that preceded the enactment of the law, various groups, including Transportation Trades Department, AFL-CIO (TTD), Brotherhood of Locomotive Engineers and Trainmen (BLET), International Association of Machinists and Aerospace Workers (IAM), Association of Flight Attendants – CWA (AFA), Transportation Workers Union of America (TWU), and the International Brotherhood of Teamsters (IBT) argued that the new threshold did not apply. TTD argued that Section 2, Twelfth of the Railway Labor Act (RLA), which governs the handling of representation petitions, does not apply to mergers because in merger situations, the NMB is not concerned with whether a group of employees should be represented, but with how the merger of two carriers might affect existing representation. TTD and other groups cited comments by Senate Majority Leader Harry Reid that the new law was not intended to apply to mergers because that could result in a group of employees losing representation “simply by merging with a slightly larger unit without even having the opportunity to vote.”
The NMB disagreed and has decided that the 50-percent threshold will apply to all representation disputes. Thus, any petition asking the Board to investigate a representation dispute must be supported by a 50-percent showing of interest. The NMB noted that the RLA requires the NMB to investigate representation disputes upon the request of any party to the dispute. It pointedly does not mention mergers and the NMB noted that when its current showing of interest rules were drafted in 1947, “mergers were not a factor in the airline industry.”
The NMB also noted that unlike the NLRA, the RLA does not have separate petitions for disputes stemming from mergers. “Thus, the statutory language does not distinguish between requests to investigate where the craft or class is unrepresented, where the employees wish to change representation or become unrepresented, or where there has been a merger or other corporate transaction.” The main question in representation disputes is which entity, if any, should be the bargaining representation of employees and that, the NMB said, is true, regardless of the background of the dispute. Had Congress wanted to change that, the NMB decided, it would have.
Similarly, would-be intervenors in elections must show that they have the support of at least 50 percent of the employees. “The Board sees no reason to make a distinction between initial applicants and intervenors at this point.”
Requests to change representation. The final rule also addresses requests to change representation. Some groups, including the Airlines for America and the Regional Airline Association (A4A/RAA), and the National Railway Labor Conference (NRLC) argued that the NMB needed to revise its manual because it is now inconsistent with the 50-percent threshold requirement. Section 19.7 of the manual currently states that current representation certifications remain in effect until after an election or until after the NMB has addressed the representation issues relating to a merger. The NLRC argued that unions should lose their certification following the merger of two units, unless they are able to show that they have the support of 50 percent of the unit. Essentially, the NLRC wanted to strip unions of their certification while a new election was being set up.
The NMB demurred, saying that it can only extinguish certifications when an employee has filed an application to do so and after the NMB has investigated that application. To do otherwise, the NMB found, would create the very instability that the RLA was crafted to avoid.
The NMB also declined to amend its manual to include greater protections against employer interference in elections, saying that it would continue to monitor allegations of election interference and will address them as they arise.