National Mediation Board proposes rule on decertification of representatives

Content

ACTION:

Proposed rule with requests for comments.

SUMMARY:

The National Mediation Board (NMB or Board) is proposing to amend its regulations to provide a straightforward procedure for
the decertification of representatives. The Board believes this change is necessary to fulfill the statutory mission of the
Railway Labor Act, protecting employees' right to select their representative. This change will ensure that each employee
has a say in their representative and eliminate unnecessary hurdles for employees who no longer wish to be represented.

DATES:

Submit comments on or before April 1, 2019. A public hearing will be held at 10 a.m. in Washington, DC at a date and location
to be announced later.

ADDRESSES:

You may submit comments, identified by Docket No. C-7198, by any of the following methods:

— Federal eRulemaking Portal: http://regulations.gov. Follow the instructions for submitting comments.

— Agency Website: http://www.nmb.gov. Follow the instructions for submitting comments.

— Email: legal@nmb.gov. Include Docket No. C-7198 in the subject line of the message.

— Fax: (202) 692-5085.

— Mail and Hand Delivery: National Mediation Board, 1301 K Street NW, Ste. 250E, Washington, DC 20005.

Instructions: All submissions received must include the agency name and docket number. All comments received will be posted without change
to http://www.nmb.gov, including any personal information provided.

Docket: For access to the docket to read background documents or comments received, go to http://www.nmb.gov.

FOR FURTHER INFORMATION CONTACT:

Mary Johnson, General Counsel, National Mediation Board, (202) 692-5040, legal@nmb.gov.

SUPPLEMENTARY INFORMATION:

The Railway Labor Act (RLA), 45 U.S.C. 151 et seq. establishes the NMB whose functions, among others, are to administer certain provisions of the RLA with respect to investigating
disputes as to the representative of a craft or class. In accordance with its authority under 45 U.S.C. 152, Ninth, the Board
has considered changes to its rules to better facilitate the statutory mission to investigate representation disputes “among
a carrier's employees as to who are the representatives of such employees.”

Currently, while employees have the ability to decertify a representative under the RLA, the process to decertify is unnecessarily
complex and convoluted. By failing to have in place a straight-forward process for decertification of a representative, the
Board is maintaining an unjustifiable hurdle for employees who no longer wish to be represented and failing to fulfill the
statutory purpose of “freedom of association among employees.” 45 U.S.C. 151a(2).

Unlike the National Labor Relations Act, the RLA has no statutory provision for decertification of a bargaining representative.
The Supreme Court, however, has held that, under Section 2, Fourth, 45 U.S.C. 152, Fourth, employees of the craft or class
“have the right to determine who shall be the representative of the group or, indeed, whether they shall have any representation
at all.” Bhd. of Railway and Steamship Clerks v. Assoc. for the Benefit of Non-Contract Employees, 380 US 650, 670 (1965)(ABNE). In ABNE, the Court further noted that the legislative history of the RLA supports the view that employees have the option of rejecting
collective representation. Id. at 669. citing Hearings on H.R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 34-35. In International Brotherhood of Teamsters v. Bhd. of Railway, Airline and Steamship Clerks, the United States Court of Appeals for the District of Columbia (D.C. Circuit), stated that “it is inconceivable that the
right to reject collective representation vanishes entirely if the employees of a unit once choose collective representation.
On its face that is a most unlikely rule, especially taking into account the inevitability of substantial turnover of personnel
within the unit.” 402 F.2d 196, 202 (1968), See also Russell v. National Mediation Board, 714 F.2d 1332 (1983).

Under its current procedures, the NMB allows indirect rather than direct decertification. The Board does not allow an employee
or a group of employees of a craft or class to apply for an election to vote for their current representative or for no union.
Employees who wish to become unrepresented must follow a more convoluted path to an election because of the Board's requirement
of the “straw man.” This straw man requirement means that if a craft or class of employees want to decertify, they must find
a person willing to put their name up, i.e. “John Smith,” and then explain to at least fifty percent of the workforce that John Smith does not want to represent them,
but if they want to decertify they have to sign the card authorizing him to represent them. Thus, in order to become unrepresented,
employees are required to first sign an authorization card to have a strawman step in to represent them. In the resulting
election, the ballot options will include the names of the current representative; John Smith, the strawman applicant; “no
union;” and an option to write in the name of another

  representative.  To decertify, employees have to vote for no representation.

It is NMB's statutory mandate to protect employees' freedom to choose a representative. There is, however, no statutory basis
for the additional requirement of a straw man where employees seek to become unrepresented. Both courts and the Board have
recognized that inherent in the right to representation is the right to be unrepresented. Accordingly, the Board proposes
changing its rules to simplify the decertification process and put decertification on an equal footing with certification.
Employees may submit authorization cards to decertify their current representative. The wording on the card must be unambiguous
and clearly state the intent to no longer be represented by the current union. The showing of interest requirement will be
the same showing of interest required for a certification election—at least 50 percent of the craft or class.

The necessity of a straw man will be eliminated, and the ballot will no longer include a strawman representation choice. Once
it is determined that the showing of interest is valid and sufficient, the Board will authorize the election with the incumbent
and the no representation option, along with a write-in option. The Board's existing run-off rules will apply.

Successful decertification, like certification, is a challenging and significant undertaking by employees with a substantial
impact on the workplace for both employees and their employer. In the Board's view, the changes in the employee-employer
relationship that occur when employees become represented, change representative or become unrepresented require similar treatment.
For this reason, the Board proposes extending the two year time limit on applications in Sec. 1206.4(a) to decertifications
as well as certifications. The other time limits set forth in 1206.4 will remain unchanged.

Member Puchala dissents from the Board majority's action in approving the proposed rule.

Executive Order 12866

This rule is not a significant rule for purposes of Executive Order 12866 and has not been reviewed by the Office of Management
and Budget.

Regulatory Flexibility Act

As required by the Regulatory Flexibility Act, the NMB certifies that these regulatory changes will not have a significant
impact on small business entities. This rule will not have any significant impact on the quality of the human environment
under the National Environmental Policy Act.

Paperwork Reduction Act

The NMB has determined that the Paperwork Reduction Act does not apply because this interim regulation does not contain any
information collection requirements that require the approval of the Office of Management and Budget.

List of Subjects

Air carriers, Labor management relations, Labor unions, Railroads.

29 CFR Part 1206

Air carriers, Labor management relations, Labor union, Railroads.

For the reasons stated in the preamble, the National Mediation Board proposes to amend 29 CFR Chapter X as set forth below:

PART 1203—APPLICATIONS FOR SERVICE

1. The authority citation for part 1203 continues to read as follows:

Authority:

44 Stat. 577, as amended; 45 U.S.C. 151-163.

1. Revise § 1203.2 to read as follows:

§ 1203.2 Investigation of representation disputes. Applications for the services of the National Mediation Board under section 2, Ninth, of the Railway Labor Act to investigate
representation disputes among carriers' employees may be made on printed forms NMB-3, copies of which may be secured from
the Board's Representation and Legal Department or on the internet at www.nmb.gov. Such applications and all correspondence connected therewith should be filed in duplicate and the applications should be
accompanied by signed authorization cards from the employees composing the craft or class involved in the dispute. The applications
should show specifically the name or description of the craft or class of employees involved, the name of the invoking organization
or individual seeking decertification, the name of the organization currently representing the employees, if any, and the
estimated number of employees in each craft or class involved. The applications should be signed by the chief executive of
the invoking organization, some other authorized officer of the organization, or an individual seeking decertification. These
disputes are given docket numbers in the series “R”.

PART 1206—HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR ACT

1. The authority citation for part 1206 continues to read as follows:

Authority:

44 Stat. 577, as amended; 45 U.S.C. 151-163.

1. Amend § 1206.1 by revising paragraph (b) to read as follows

§ 1206.1 Run-off elections. * * * * *

(b) In the event a run-off election is authorized by the Board, the two options which received the highest number of votes
cast in the first election shall be placed on the run-off ballot. No blank line on which voters may write in the name of any
organization, individual, or no representation will be provided on the run-off ballot.

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1. Amend § 1206.2 by revising paragraph (a) to read as follows:

§ 1206.2 Percentage of valid authorizations required to determine existence of a representation dispute. (a)Upon receipt of an application requesting that an organization or individual be certified as the representative of any
craft or class of employees, or to decertify the current representative and have no representative, a showing of proved authorizations
(checked and verified as to date, signature, and employment status) from at least fifty (50) percent of the craft or class
must be made before the National Mediation Board will authorize an election or otherwise determine the representation desires
of the employees under the provisions of section 2, Ninth, of the Railway Labor Act.

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1. Amend § 1206.4 by revising paragraph (a) to read as follows:

§ 1206.4 Time Limits on Applications * * * * *

(a) For a period of two (2) years from the date of a certification or decertification covering the same craft or class of
employees on the same carrier, and

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1. Redesignate §§ 1206.5 through 1206.7 as §§ 1206.6 through 1206.8 and add new § 1206.5 to read as follows:

§ 1206.5 Decertification of Representatives. Employees who no longer wish to be represented may seek to decertify the current representative of a craft or class in a direct
election. The employees must follow the procedure outlines in § 1203.2.

Dated: January 28, 2019. Mary L. Johnson, General Counsel. [FR Doc. 2019-00406 Filed 1-30-19; 8:45 a.m.] BILLING CODE 7550-01-P

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