Representation Procedures and Rulemaking Authority, 75543-75549 [2012-30853]

Agencies

• National Mediation Board

[Federal Register Volume 77, Number 246 (Friday, December 21, 2012)]
[Rules and Regulations]
[Pages 75543-75549]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30853]


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NATIONAL MEDIATION BOARD

29 CFR Part 1206

[Docket No. C-7034]
RIN 3140-ZA01


Representation Procedures and Rulemaking Authority

AGENCY: National Mediation Board.

ACTION: Final rule.

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SUMMARY: In response to amendments to the Railway Labor Act in the 
Federal Aviation Administration Modernization Reform Act of 2012, the 
National Mediation Board amends its existing regulations pertaining to 
representation elections, run-off elections, and rulemaking to reflect 
changes in statutory language.

DATES: The final rule is effective December 21, 2012.

FOR FURTHER INFORMATION CONTACT: Mary Johnson, General Counsel, 
National Mediation Board, 202-692-5050, infoline@nmb.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 14, 2012, the Federal Aviation Administration and 
Modernization and Reform Act of 2012, Public Law 112-0095 (FAA 
Reauthorization) was signed into law. The FAA Reauthorization 
contained, inter alia, several amendments to the Railway Labor Act (RLA 
or Act). The changes contained in these amendments require changes to 
the National Mediation Board's (NMB or Board) existing Rules relating 
to run-off elections, showing of interest requirements, and rulemaking. 
On May 15, 2012, the NMB published a Notice of Proposed Rulemaking 
(NPRM) in the Federal Register inviting public comments for 60 days on 
a proposal to revise those rules to comply with the statutory language. 
The Board invited commenters to address the specific amendments along 
with any other matters they consider relevant to the changes wrought by 
the amended statutory language. In the NPRM, the Board also indicated 
its particular interest in receiving comments regarding the effect of 
the amendments on the Board's policies and practices with respect to 
representation disputes in mergers. The NPRM also stated that the NMB 
may incorporate any comments in a Final Rule in this proceeding. On 
June 7, 2012, the Board issued a correction to the text of the proposed 
rules. On June 19, 2012, the Board held an open public hearing to 
solicit the views of interested parties on the NPRM.

II. Notice and Comment Period

    In response to the NPRM, the NMB received ten submissions during 
the official comment period from trade and professional associations, 
labor unions, and members of Congress. Additionally, the NMB received 
written and oral comments from seven labor organizations that 
participated in the June 19, 2012 open public hearing. The NMB has 
carefully considered all of the comments and analyses of the proposed 
changes and the impact of the amended statutory language on its merger 
procedures set forth in the Board's Representation Manual (Manual).
    The overwhelming majority of the substantive comments addressed the 
applicability of the amended statutory language providing that a 
showing of interest of not less than 50 percent is required to support 
an ``application requesting that an organization or individual be 
certified as the representative of any craft or class of employees,'' 
to representation disputes in mergers. The preamble will focus on the 
Board's response to the arguments raised in these comments.

III. Summary of Comments

    The major comments received and the Board's responses to those 
comments are as follows. The Board notes that it is required to respond 
to significant comments and, therefore, has not addressed every issue 
raised in the comments. See, e.g., Portland Cement Ass'n v. 
Ruckelshaus, 486 F.2d 375, 394 (D.C. Cir. 1973) (``[C]omments must be 
significant enough to step over a threshold requirement of materiality 
before any lack of agency response or consideration becomes of 
concern.'').\1\
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    \1\ There were no comments related to the proposed rules 
amending the Board's rulemaking procedures. In addition, there was 
only one comment related to the run-off election procedures under 
Proposed Rule 1206.1. Right to Work objects to Rule 1206.1(c), 
arguing that new hires should be permitted to vote in run-off 
elections. The language of 1206.1(c) remains unchanged from the 
current rule. The Board has a long-standing policy of only including 
employees who were eligible in the initial election in the run-off 
election and will not change that in this Final Rule.
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A. Showing of Interest

    The showing of interest requirements applicable in mergers are set 
forth in the Board's Manual.\2\ Manual Section 19.1 defines a merger as 
``a consolidation, merger, purchase, lease, operating contract, 
acquisition of control, or similar transaction of two or more business 
entity.'' The courts have long recognized that the NMB, under Section 
2, Ninth, has the authority to resolve representation disputes arising 
from a merger involving a carrier or carriers covered by the RLA. Air 
Line Employees Ass'n, Int'l v. Republic Airlines, Inc., 798 F.2d 967 
(7th Cir. 1986). An organization or individual initiates this process 
by filing an application supported by evidence of representation or a 
showing of interest. If, after an investigation, the NMB determines 
that a single transportation system exists, the Board will proceed to 
resolve the representation of the craft or class on the merged carrier. 
The Board's current policy in mergers requires that ``[i]ncumbent 
organizations or individuals on the affected carrier(s) must submit 
evidence of representation or a showing of interest from at least 
thirty-five (35) percent of the employees in the craft or class.'' 
Manual Section 19.601. The Manual further states that the ``rules 
regarding percentage of valid authorizations in NMB Rule 1206.2 (29 CFR 
1206.2) and bar rules in NMB Rule 1206.4 (29 CFR 1206.4) do not apply 
to applications'' in merger situations. Manual Section 19.6.
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    \2\ The Manual is an internal statement of agency policy and not 
a compilation of regularly promulgated regulations having the force 
and effect of law. Hawaiian Airlines v. NMB, 107 L.R.R.M. 3322 (D. 
Haw. 1979), aff'd without op. 659 F.2d 1088 (9th Cir. 1981).
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    In the oral and written statements received at the June 19, 2012 
public meeting and in written comments submitted pursuant to the NPRM, 
commenters including the 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) state that neither the plain language of Section 2, Twelfth nor 
the legislative history indicate that Congress intended the 50 percent 
showing of interest requirement should apply to mergers.

[[Page 75544]]

Thus, in effect, these commenters suggest that the amendments do not 
affect the Board's existing merger policy and procedures. This position 
is also supported in the written comments from Democratic Senators 
Harry Reid, Tom Harkin and John D. Rockefeller IV urging the Board to 
leave its current merger procedures in place. The opposite view, namely 
that Section 2, Twelfth unequivocally applies to all representation 
elections and disputes including those arising as a result of a merger, 
is urged in written comments submitted pursuant to the NPRM by 
Republican House Members John L. Mica, Thomas E. Petri, John J. Duncan, 
Sam Graves, Bill Shuster, Jean Schmidt and Chip Cravaack, the National 
Right to Work Legal Defense Foundation (Right to Work), Airlines for 
America and the Regional Airline Association (A4A/RAA), and the 
National Railway Labor Conference (NRLC).
    The TTD, along with other labor organizations, asserts that the 
language and structure of Section 2, Twelfth indicates that Congress 
did not intend for it to apply to merger proceedings. TTD argues that 
the language used in Section 2, Twelfth to refer to a representation 
dispute, namely ``upon receipt of an application requesting that an 
organization or individual be certified as the representative,'' does 
not describe a representation dispute resulting from a merger. 
According to TTD, the Board's process in a merger ``focuses on 
determining the impact, if any, of a merger of two or more carriers 
upon existing representation certifications.'' TTD also argues that if 
Congress had intended Section 2, Twelfth to apply to every 
representation dispute under Section 2, Ninth, it would have explicitly 
stated as much or added the new statutory language directly into 
Section 2, Ninth. Instead, TTD argues, Congress chose different 
language and Section 2, Twelfth should be read as narrower than Section 
2, Ninth.\3\
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    \3\ The TTD also requests that the Board retain the current 
language in Rule 1206.2(a) (requiring a showing of interest of a 
majority of employees in a represented craft or class), while 
changing the language in 1206(b) as proposed in the NPRM. The result 
of this change would be that the showing of interest for represented 
crafts or classes would be one more card than for unrepresented 
crafts or classes. The TTD does not provide a justification for 
making this minor distinction. Congress has amended the statute to 
require a minimum 50 percent showing of interest in any craft or 
class and the Board sees no reason to make such a distinction.
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    The TTD and other commenters opposed to applying the new showing of 
interest to mergers also point to statements made by Senators Harkin, 
Reid, and Rockefeller in a colloquy in the Congressional Record. In 
particular, Senator Reid made the following statement:

    And I would also like to explain that it is not intended to 
apply to the unique situation in mergers. The text of the amendments 
apply to all applications for representation elections, but not to 
the entirely different circumstance where a labor organization or 
employees petition the National Mediation Board for a determination 
as to whether a merger or other transaction has altered an existing 
representational structure as a result of a creation of a single 
transportation system. In those cases, it is our intent that the 
National Mediation Board's existing merger procedures, as modified 
from time to time by the National Mediation Board, shall determine 
the percent of the craft or class to establish a showing of 
interest. Otherwise, employees could lose their representation 
simply by merging with a slightly larger unit without even having 
the opportunity to vote, which is unacceptable.

TTD argues that this language plainly indicates that Section 2, Twelfth 
was not intended to apply to mergers.

    In contrast to the TTD's arguments regarding statutory 
interpretation, several members of Congress, in their written comment 
to the Board,\4\ stated that ``[h]ad Congress wished to exclude merger-
related representation elections from the scope of Section 2, Twelfth, 
such an exception could have easily been written into the amendment: 
clearly it was not.'' These members of Congress further argue that 
there is no reason why Congress would have excluded mergers from the 
amendment when a majority of airline workers involved in recent 
representation elections were participating in elections that resulted 
from mergers. NRLC argues that the Board must apply the showing of 
interest requirements to any application for representation because 
there is nothing in Section 2, Twelfth to suggest that all applications 
are not covered. The title of Section 3 of the FAA Reauthorization was 
``Bargaining Representation Certification.'' According to the NRLC, 
``when congress circumscribed the Board's authority in `Bargaining 
Representation Certification,' it necessarily did so in all 
circumstances in which the NMB certifies a bargaining representative, 
including in the merger context.''
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    \4\ On August 2, 2012, Representatives John L. Mica, Thomas E. 
Petri, John J. Duncan, Sam Graves, Bill Shuster, Jean Schmidt, and 
Chip Cravaack submitted a comment in response to the Notice of 
Proposed Rulemaking.
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    A4A/RAA, in a joint written statement, also argue that the text of 
Section 2, Twelfth, along with the title I of the section ``Showing of 
interest for representation elections,'' does not leave any doubt that 
showing of interest requirements apply in all representation elections. 
They summarize their argument in the following way:

    In light of (a) the unequivocal language of Section 2, Twelfth, 
(b) the absence of any exception for mergers, (c) the reality that 
excluding merger-related elections would effectively gut the 
amendment, and (d) the fact that the Merger Procedures in the 
Board's Representation Manual require that an application be 
supported by a showing of interest, A4A submits that all merger-
related applications must be subject to the 50% showing of interest.

    A4A/RAA also argue that the comments by Senator Reid described 
above were isolated comments, part of a colloquy among a small number 
of senators, and ``cannot override the clear directive of the 
amendment.'' In their comment, they cite Supreme Court cases for the 
rule of statutory interpretation that isolated comments are not a 
reliable indicator of Congressional intent and little or no weight is 
given to comments by a single legislator.
    Having carefully reviewed and considered the comments, the Board 
believes that by enacting Section 2, Twelfth, Congress intended to 
apply the same showing of interest to requirement in all 
representations disputes under the Act. Thus, any application seeking 
the Board's investigation of a representation dispute under Section 2, 
Ninth must be supported by a showing of interest of not less than 50 
percent. For the reasons discussed below, the Board believes that this 
includes applications filed as part of a single carrier determination 
in mergers.
    In Section 2, Ninth of the RLA, Congress delegated to the NMB the 
authority to resolve disputes as to the identity of representatives of 
employees of airlines and railroads for purposes of collective 
bargaining. The Board's duty with respect to representation disputes is 
set forth in Section 2, Ninth: ``upon request of either party to the 
dispute'' the Board shall investigate such dispute and certify to the 
parties and to the carrier ``the name or names of the individuals or 
organizations that have been designated and authorized to represent the 
employees involved in the dispute.'' 45 U.S.C. 152, Ninth. Section 2, 
Ninth further provides that ``[i]n such investigation'' of the 
representation dispute,

the Mediation Board shall be authorized to take a secret ballot of 
the employees involved or use 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.


[[Page 75545]]


Thus, the language and structure of Section 2, Ninth makes clear that 
the Board has an affirmative duty to investigate a representation 
dispute upon ``request of either party to the dispute'' and the Board 
is ``authorized'' to conduct an election or use any other appropriate 
method in connection with ``such an investigation'' to resolve the 
dispute as to the identity of the employees' representative.'' The 
Court of Appeals for the District of Columbia has previously described 
the limitations on the Board with regard to its representation 
functions,

    The (first sentence of Section 2, Ninth) imposes four 
significant conditions that must be satisfied as a prelude to the 
board's authority to investigate a representation dispute: there 
must be a dispute; the dispute must relate to representation; it 
must be among a carrier's employees; and one of the parties to the 
dispute must request the Board's services in resolving it.

Railway Labor Executives' Ass'n v. NMB, 29 F.3d 655, 666-67 (DC Cir. 
1994) (RLEA) (emphasis in original).

    Through Section 2, Twelfth, Congress has added an additional 
limitation to the Board's authority under Section 2, Ninth, namely that 
once requested to investigate a representation dispute (``upon receipt 
of an application''), the NMB cannot direct an election or use any 
other method to determine the representative of a craft or class of 
employees without a showing of interest from not less than 50 percent 
of the employees in that craft or class. When the Board's current 
showing of interest rules were enacted in 1947, mergers were not a 
factor in the airline industry. The Board recognizes that it did not 
apply Rule 1206.2 to mergers and that it was not until the 1980s that 
the Board created separate procedures for dealing with mergers in the 
Manual. Congress is aware that mergers are a major factor in the 
airline industry and that the Board had separate procedures for dealing 
with mergers. In the Board's view, Congress amended the RLA to require 
a 50 percent showing of interest before the Board can authorize an 
election in any craft or class.
    Representation disputes resulting from mergers are disputes subject 
to the Board's authority under Section 2, Ninth. The Board clarified 
this in its decision in TWA/Ozark Airlines, 14 NMB 218, 222 (1987) 
(citing Section 2, Ninth as requiring the Board to resolve the 
representation dispute between the merging carriers, TWA and Ozark 
Airlines). In response to TWA's assertion that the Board did not have 
statutory authority to determine the representation status of existing 
certifications at Ozark Airlines, the Board stated the following: ``We 
hasten to clarify that pursuant to Section 2, Ninth the Board upon 
investigation has exclusive authority to grant, withhold and revoke 
representation certifications.'' Id. at 235 (emphasis in original). In 
each single carrier determination issued by the Board, the Board 
invokes its authority under Section 2, Ninth to investigate 
representation disputes, making no distinction between this type of 
representation dispute and the more typical case where an organization 
or individual files an application seeking to represent a previously 
unrepresented craft or class of employees.
    Likewise, in RLEA, the court recognized that the Board's authority 
in that representation dispute, resulting from a merger, came from 
Section 2, Ninth. RLEA, 29 F.3d at 660-61. The court considered whether 
the Board's merger procedures at that time violated Section 2, Ninth. 
There was no argument that a representation dispute resulting from a 
merger was anything other than a ``dispute'' under Section 2, Ninth.
    According to Section 2, Twelfth, the showing of interest 
requirement applies ``upon receipt of an application requesting that an 
organization or individual be certified as the representative of any 
craft or class of employees * * *'' The language indicates that this 
requirement applies to all representation applications filed with the 
Board. Unlike representation proceedings under the National Labor 
Relations Act (NLRA), which provides for different types of 
petitions,\5\ the RLA only provides for investigation of a 
representation dispute by the NMB ``upon request of either party'' to 
that dispute. 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. Under the Board's practice, the Section 2, Ninth request 
is made in the form of an application and the Board has always had one 
application, ``Application for Investigation of Representation 
Dispute,'' which requests the Board to investigate and certify the name 
or names of the individuals or organizations authorized to represent 
the employees involved in accordance with Section 2, Ninth.
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    \5\ Section 9(c) of the NLRA provides for three types of 
petitions to the National Labor Relations Board (NLRB): (1) A 
petition seeking certification, (2) an employer petition seeking 
resolution of a question concerning representation, and (3) a 
petition seeking decertification of a previously recognized 
representative. 29 U.S.C. 159(c)(1). In addition, the NLRB's Rules 
and Regulations, Section 102.60(b) provides for petitions for 
clarification of a bargaining unit and petitions for amendment of 
certifications. 29 CFR 102.60(b).
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    This requirement in Section 2, Twelfth applies to an application by 
an organization seeking to represent ``any craft or class.'' Courts 
have considered what ``any'' means in a statute. For example, in Carter 
v. Welles-Bowen Realty, Inc., 553 F.3d 979, 986 (6th Cir. 2009), the 
court, after discussing the dictionary definition of ``any,'' stated 
that when Congress included the term ``any charges'' in a statute, 
``[t]he ordinary definition of `any' indicates that charges are neither 
restricted to a particular type of charge nor limited to a specific 
(charge).'' Here, Congress' language stated that the showing of 
interest requirements applied to applications to represent ``any craft 
or class'' and the language is not restricted as argued by TTD and 
other commenters.
    TTD argues that Congress did not intend for Section 2, Twelfth to 
apply to merger proceedings because ``single carrier determinations 
concern existing certifications,'' while Section 2, Twelfth applies 
where a representative is seeking to ``be certified'' as the 
representative of a craft or class. The Board is not persuaded by this 
distinction. The question before the Board in any investigation of a 
representation dispute is ``who are the representatives of such 
employees'' as described in Section 2, Ninth. This is the issue even if 
the employees are already represented, for example, when an 
organization seeks to ``raid'' an already-certified craft or class or 
when an individual files an application with the intention to change 
their representative or become unrepresented. Furthermore, after the 
Board makes a single carrier determination, the issue becomes who is 
the representative of the new craft or class created by the merger; it 
is not simply a question of existing certifications as stated by TTD. 
The applicant is seeking to ``be certified'' as the representative of 
the newly created craft or class. Prior to these amendments, the Board 
had one application with different showing of interest requirements. 
Congress is now saying, with Section 2, Twelfth, that the Board must 
require the same showing of interest requirement for any application.
    Congress could have provided for an exception to the showing of 
interest requirements in Section 2, Twelfth. When interpreting 
statutory language, courts have noted that when Congress intends for a 
specific exception, it makes this intent clear. Therefore, courts are 
reluctant to find an exception

[[Page 75546]]

to a provision in a statute that is not expressed. For example in Baker 
v. Runyon, 114 F.3d 668, 670 (7th Cir. 1997), a plaintiff sought to 
recover punitive damages from the Postal Service despite the 
prohibition in the Civil Rights Act from recovering damages from ``a 
government, government agency, or political subdivision.'' The 
plaintiff seeking damages argued that Congress' history of treating the 
Postal Service differently under other statutes and the legislative 
history of the Civil Rights Act indicated that Congress did not intend 
to exempt it from punitive damages. The court responded that the 
plaintiff was ``asking this court to read into the Act an exception to 
Congress' blanket exemption, despite the absence of any textual support 
for such an exclusion * * * We therefore presume that Congress would 
have said that all government agencies, except the Postal Service, are 
exempt from punitive damages, if this is what it intended.'' Id. 
(internal citations omitted). Like in Baker, Congress did not intend 
for there to be an exception to the showing of interest requirements 
because it did not expressly provide for it. Section 2, Twelfth 
requires a 50 percent showing of interest whenever the Board is 
requested to certify a representative of any craft or class of 
employees.
    The Board is also not persuaded that the differences in language 
between Section 2, Ninth and Section 2, Twelfth indicate that Congress 
did not intend for the showing of interest requirements to apply in 
mergers. The language in Section 2, Twelfth does not track the language 
in Section 2, Ninth exactly, but there is no language in Section 2, 
Twelfth that indicates that Congress intended there to be such a large 
exception to its provisions. The Board recognizes that courts consider 
whether Congress used the same phrasing in different sections of a 
statute to interpret its intent; however, the negative implications of 
different language apply most strongly when the sections in question 
were considered simultaneously. Lindh v. Murphy, 521 U.S. 320, 21 
(1997). Because these sections were not constructed simultaneously and 
were, in fact, considered decades apart, the assumption that Congress 
deliberately chose contrasting language is a weak one. Field v. Mans, 
516 U.S. 59, 75 (1995). (``As for the rule of construction, of course 
it is not illegitimate, but merely limited. The more apparently 
deliberate the contrast, the stronger the inference, as applied, for 
example, to contrasting statutory sections originally enacted 
simultaneously in relevant respects''.)
    Finally, the Board does not agree that the comments in the 
Congressional Record cited by TTD and others provide insight into 
congressional intent. The most dispositive form of legislative history 
is the conference report. United States v. Commonwealth Energy Sys. 235 
F.3d 11 (1st Cir. 2000). The conference report for the FAA 
Reauthorization did not include any discussion of this issue. In the 
absence of this or other legislative history indicating that Congress 
intended there to be an exception in mergers, the statements made by 
the Democratic senators in floor debates should not be given 
controlling weight in making this determination. The United States 
Court of Appeals for the District of Columbia Circuit has noted that 
judges must exercise caution before relying on a statement made in a 
floor debate or at a hearing given the interplay in Congress of 
political and legislative considerations that are unrelated to the 
interpretive tasks of a court. Gersman v. Group Health Ass'n, Inc., 975 
F.2d 886, 892 (DC Cir. 1992) (quoting Antolok v. United States, 873 
F.2d 369, 377 (DC Cir. 1989)) cert. denied, 511 U.S. 1068 (1994). This 
caution is especially warranted when it appears that a colloquy was a 
direct result of ``a single member * * * attempting to reassure his own 
constituency or even to create legislative history for citation by the 
courts.'' Id.

B. Request To Change Representation Manual Section 19.7

    The NLRC and A4A/RAA requested that the Board revise its Manual in 
response to the amendments. Specifically, they argue that Manual 
Section 19.7, part of the Board's Merger Procedures, is inconsistent 
with Section 2, Twelfth. Manual Section 19.7 currently states that 
``[e]xisting certifications remain in effect until the NMB issues a new 
certification or dismissal.''
    The practical effect of Section 19.7 is that after the Board makes 
a single carrier determination, current certifications remain in effect 
until either an election or until the Board addresses the 
representation consequences of the merger without an election. The NRLC 
and A4A/RAA's comments argue that, unlike other merger provisions in 
the Manual, Section 19.7 is substantive. A4A/RAA's comment states that 
the rule ``pre-determines the effects of mergers on existing 
certifications in a way that is contrary to a basic precept of the 
Railway Labor Act. To the extent that Rule 19.7 permits a union to 
remain as the representative of a `minority' faction of a larger 
system-wide craft or class on a merged airline, Section 19.7 is 
directly contrary to long-standing interpretations of the RLA.'' As the 
NRLC's comment notes, the NRLC objected to the precursor to Section 
19.7 when the Board invited comments on changes to its merger 
procedures in 2001. The NRLC argued in 2001, as they do now, that 
Section 19.7 results in unions representing only a fraction of a merged 
carrier's craft or class.
    The NRLC and A4A/RAA further claim that Section 2, Twelfth 
reinforces Congressional intent that a representative must have the 
support of a majority of the craft or class. According to NRLC, 
``Section 2, Twelfth, by requiring a 50 percent showing of interest in 
all representation cases, reinforces congressional intent that any 
representative must have the support of a majority of the craft or 
class'' and Section 19.7 may allow a union to continue representing a 
portion of a craft or class without the support of a majority of the 
craft or class.
    Courts have long recognized the Board's authority over 
representation disputes and specifically its authority in resolving 
disputes in merger situations. ``All the courts of appeals to have 
considered the issue * * * have held that the question whether a 
union's certification survives an airline merger is a matter within the 
exclusive jurisdiction of the NMB.'' Ass'n of Flight Attendants v. 
Delta Air Lines, 879 F.2d 906, 912 (DC Cir. 1989). See also Air Line 
Employees Ass'n v. Republic Airlines, Inc., 798 F.2d 967, 968-69 (7th 
Cir. 1986); International Ass'n of Machinists v. Northeast Airlines, 
Inc., 536 F.2d 975, 977 (1st. Cir. 1976); Brotherhood of Ry. Clerks v. 
United Air Lines, Inc., 325 F.2d 576, 579-80 (6th Cir. 1963). The 
commenters fail to provide an explanation as to how Section 2, Twelfth 
changes this basic principle. These courts based the Board's discretion 
on Section 2, Fourth's requirement that a representative is chosen by 
``the majority of any craft or class * * *'' and the Board's duty to 
investigate representation disputes under Section 2, Ninth. Delta Air 
Lines, 879 F.2d at 910; Int'l Brotherhood of Teamsters v. Frontier 
Airlines, Inc., 628 F.3d 402, 405 (7th Cir. 2010). The amendment does 
not change the definition of majority under Section 2, Fourth (which 
refers to employees voting in an election) nor does it change the 
Board's duty under Section 2, Ninth. It merely takes away the Board's 
discretion regarding a requirement that must be satisfied

[[Page 75547]]

before the Board can authorize an election under Section 2, Ninth.
    The Board cannot take action regarding existing certifications, 
including extinguishing those certifications, at merging carriers where 
no application has been filed by employees. The Board cannot initiate a 
single carrier investigation. RLEA, 29 F.3d at 665-69. The Board cannot 
extinguish a certification on its own initiative upon learning of 
carriers' intent to merge. Nor can it do so on the request of a 
carrier. Frontier Airlines, 628 F.3d at 406. The statute requires that 
the Board wait for an employee or organization to file an application 
before investigating and resolving the representation consequences of a 
merger. In its single carrier determination, the Board determines when 
there has been a merger for labor relations and representation purposes 
and immediately moves on to address the representation consequences. 
Generally, the representation consequences of a merger are resolved 
shortly following a single carrier determination. Only at that time can 
the Board authorize an election or extend or extinguish certifications, 
depending on its precedent regarding the representation status and 
sizes of the merging groups. Even if the Board had the authority to 
extinguish a certification earlier, doing so would likely lead to 
instability during an election campaign, confusion about what 
laboratory conditions are necessary during the election period, and 
frustrate the expectations of employees who at some point voted for 
representation. Courts have noted that the RLA ``abhors a contractual 
vacuum.'' Air Line Pilots Ass'n, v. UAL Corp., 897 F.2d 1394, 1398 (7th 
1990). The Board will not introduce such a vacuum and resulting 
instability where a representation investigation is underway.
    Furthermore, the courts that have addressed this issue were not 
unaware that in some situations, a merger will result in a minority of 
employees being temporarily represented by an organization. In this 
situation, the Board maintains the authority to determine the 
representation consequences of the merger. Int'l Brotherhood of 
Teamsters v. Texas Int'l Airlines, Inc., 717 F.2d 157, 164 (5th Cir. 
1983) (``After a merger that makes the employee group hitherto 
represented by the Union a minority of the craft, the question of 
employee representation inevitably arises. When this happens, 
resolution of that question is the function of the National Mediation 
Board.'')
    The Board also disagrees with these comments' supposition that 
``minority unions'' result from Section 19.7. Without an investigation, 
it cannot be determined whether an incumbent union or any other 
organization represents the employees in the combined craft or class on 
a merged carrier. This finding is the purpose of the investigation of 
representation consequences following a merger. As one court noted, 
``the merger created real doubts about whether plaintiffs represent the 
majority of * * * employees, and where there is such doubt, federal 
courts leave resolution of the dispute to the National Mediation 
Board.'' Int'l Ass'n of Machinists and Aerospace Workers v. Northeast 
Airlines, Inc., 536 F.2d 975, 977 (1st Cir. 1976).
    Neither NRLC nor A4A/RAA explains the connection between Section 2, 
Twelfth and Manual Section 19.7. These commenters simply state that 
Section 2, Twelfth reinforces Congressional intent that a 
representative must have the support of a majority of the craft or 
class and that Manual Section 19.7 undermines this intent but do not 
explain how this is so. In the Board's view there is no conflict. The 
showing of interest is a threshold requirement that enables the Board 
to determine whether or not there is sufficient interest among 
employees to justify holding an election without the needless 
expenditure of Government time, efforts, and funds. Compass Airlines, 
35 NMB 14 (2007). In Section 2, Twelfth, Congress has decided that the 
Board should require the same showing of interest for any application. 
Congress, however, has not required a showing of interest from a 
majority of employees in the craft or class to trigger an election. 
Rather, Section 2, Twelfth requires only a showing of interest from 
``not less than 50 percent of employees in the craft or class'' to 
proceed to an election in which the majority of employees participating 
in the election will then choose their representative in accordance 
with Section 2, Fourth. Air Transport Ass'n v. National Mediation 
Board, 719 F.Supp.2d 26 (DC Cir. 2011). Likewise, the fact that, in the 
interests of stability, the Board requires that existing certifications 
remain in effect until the representation dispute is resolved does not 
impair the Congressional intent. The representation dispute will end 
with the employees in the merged craft or class casting ballots for or 
against representation and the choice of the majority of votes cast in 
that election will prevail.
    The Board cannot take action with respect to crafts or classes at 
merging carriers where no application has been filed and Section 2, 
Twelfth does not change the Board's duties under Section 9, Ninth. 
Accordingly, in the Board's view, Manual Section 19.7 is not 
inconsistent with the RLA and the Board will not change it.

C. Request To Maintain Current Showing of Interest Requirements for 
Intervenors

    AMFA asks the Board to reconsider proposed Rule 1206.5, regarding 
the showing of interest for an intervenor. AMFA argues that the FAA 
amendments do not require that the 50 percent showing of interest be 
extended to intervenors and that ``[a]bsent express language in the RLA 
to the contrary, the Board should not pursue a policy of according 
inferior organizing rights to workers in the airline and railroad 
industries.'' AMFA argues that Section 2, Twelfth does not require 
intervenors to also satisfy the 50 percent showing of interest 
requirement because the Board can hold an election once the 50 percent 
showing of interest requirement is satisfied by the initial applicant. 
AMFA requests that the Board maintain its current 35 percent showing of 
interest for intervenors in both merger and non-merger situations and 
argues that changing the showing of interest requirement for 
intervenors would serve no other purpose than to ``limit democratic 
choice'' by limiting the choices on the ballot.
    In contrast, IBT, in its comment, contends that the Board's 
proposed Rule 1206.5 is appropriate because allowing a party to 
intervene with a lower showing of interest than the initial applicant 
would allow that party to ``ride the coattails'' of the initial 
applicant. According to IBT, it would be inconsistent to allow an 
intervenor to have their name on the ballot with a showing of interest 
lesser than that required of the initial applicant. In addition, IBT 
contends that allowing a lower showing of interest for intervenors may 
result in more multi-party elections and a greater number of run-off 
elections. TWU, in its comment, also approves of the Board's proposed 
rule, which adjusts the showing of interest for intervenors. According 
to TWU, ``it would be inappropriate and inconsistent with Board 
practice for the Board to allow intervenors who seek certification to 
piggyback on an applicant's 50% showing of interest but produce only a 
35% showing of interest on their own.''
    As discussed above, there is only one application that an 
individual or organization files to invoke the Board's services. The 
Board requires all

[[Page 75548]]

organizations, whether initial applicant or intervenor, to file the 
same application. Congress has stated that an application must be 
supported by a 50 percent showing of interest and the Board sees no 
reason to make a distinction between initial applicants and intervenors 
at this point. While the language of Section 2, Twelfth does not 
specifically refer to intervenors, the Board recognizes that it is 
unlikely that Congress intended for an organization or individual to 
get their name on the ballot with less than a 50 percent showing of 
interest after another organization has complied with the 50 percent 
requirement.
    In addition, the Board notes that it has not prevented employees 
from signing more than one authorization card. See Wisconsin Central 
Trans. Corp. RR, 24 NMB 307 (1997). In a merger situation, a union 
could collect signatures from employees who are represented by another 
union. If 50 percent of the craft or class is either already 
represented by that union or willing to sign an authorization card for 
that union, the showing of interest requirement will be satisfied. In a 
merger situation, there is no reason to hold the union who files the 
first application to a higher standard than unions who file subsequent 
applications.

D. Request To Include Merger Procedures in CFR

    TTD requests that that the Board include the current merger 
procedures in the Code of Federal Regulations (CFR) to provide clear 
guidance to labor and management and in order to enjoy the high level 
of deference afforded under the Chevron standard. TTD asked the Board 
to ``incorporate existing merger procedures'' into the CFR and provided 
proposed language.
    Because Congress has removed the Board's discretion with regards to 
showing of interest requirements in merger procedures, the existing 
merger procedures in the Manual will be amended to reflect that change. 
The Manual provides procedural guidance to the Board's staff in 
processing representation disputes. While these provisions are not 
mandatory for the Board or its staff, they do provide guidance to labor 
and management during representation disputes. It is not a compilation 
of regularly promulgated regulations having the force and effect of 
law. Hawaiian Airlines v. NMB, 107 L.R.R.M. 3322 (D. Haw. 1979), aff'd 
without op. 659 F.2d 1088 (9th Cir. 1981).
    The Board has made changes to the Manual in the past and may do so 
in the future. These changes are communicated to labor and management. 
See e.g. Revised Materials for NMB's New Voting Procedures, 38 NMB 83 
(2011). By maintaining discretion where Congress has not required 
specific action by the Board, the Board is able to change the Manual as 
required by changes in the industry, Board practice, or the law. For 
example, the Board amended the write-in procedures in the Manual after 
determining that new voting procedures clarified voters' choices, 
making a write-in vote for ``Any Other Organization or Individual'' 
unnecessary. Id. The Board will not codify merger procedures that are 
not required by Congress into the CFR in order to maintain this 
flexibility.

E. Request To Provide Greater Protection Against Carrier Interference 
in the Manual

    The TTD requests that the Board amend its Manual to require 
carriers to provide information verifying voter eligibility when 
providing the initial List of Eligible Voters and impose remedies on a 
case-by-case basis where a carrier has failed to provide accurate 
information necessary to determine eligibility. It also requests that 
the Board ensure that carriers do not abuse the election process by 
claiming that terminated employees are furloughed. According to TTD, 
the new showing of interest requirements will ``incentivize carriers to 
pad voting lists with hard-to-reach workers or individuals no longer 
employed at the company in an effort to prevent employees from even 
having an opportunity to vote in an election.''
    The Board has the authority under Section 2, Ninth to implement 
measures to insure that an election is free from carrier interference 
at any stage of a representation dispute. The Board has in place a 
procedure to ensure the accuracy of the list. Manual Section 3.6 
provides the parties with an opportunity to review the Eligibility List 
if it appears that the showing of interest requirement has not been 
met. See also American Airlines, 39 NMB 341 (2012) (providing a 
schedule for challenges and objections to the Eligibility List prior to 
showing of interest determination).
    The Board will not change its Manual at this time but will continue 
to request information from carriers when it is necessary to make 
eligibility determination and remains free to take appropriate measures 
as necessary on a case-by-case basis. The Board can also investigate 
allegations of election interference prior to the tally in 
extraordinary circumstances.
    The Board has always investigated allegations of election 
interference and addressed related issues in its determinations. If 
there are allegations of carrier or union interference following the 
change in showing of interest requirements, the Board will address 
these changes. Following prior changes to the election rules, the Board 
addressed how these changes influenced interference allegations 
following a subsequent election and interference investigation. See, 
e.g. Delta Air Lines, 39 NMB 53, 73 (2011) (discussing how changes to 
election procedures to allow employees to affirmatively vote against 
representation mean that the fact that a carrier is aware that an 
employee voted no longer carries as great a risk of reprisal or 
coercion). As discussed above, the Board seeks to maintain its 
flexibility in responding to changes in the airline and railroad 
industries. The Board will continue to address changes in the industry, 
communications, technology, and whether these new showing of interest 
requirements change interference investigations as part of its 
statutory duty to ensure that elections are free from carrier 
interference.

F. Request To Change Decertification Procedures

    Right to Work requested that the Board ``provide an explicit 
decertification procedure.'' It notes that employees under the NLRA 
have a straightforward process for decertifying a union and that the 
lack of such a process under the RLA deprives airline and railroad 
workers of a right that other employees in the private sector have.
    The Board has in the past considered comments on the issue of 
changing its decertification procedures when it was considering 
changing its voting rules. See Chamber of Commerce, 14 NMB 347 (1987). 
The Board recognized that the close relationship between the form of 
the ballot and the issue of decertification called for the issues to be 
addressed together. Here, however, Right to Work has not even explained 
how this issue is relevant to the changes to the RLA by the FAA 
Reauthorization. The change in showing of interest requirements in 
Rules 1206.2 and 1206.5 will apply to all representation elections, 
including those resulting from an application filed by an individual or 
organization seeking to decertify a union, equally. The Board currently 
has a procedure for decertification and the amendments and the proposed 
rules do not substantively change that procedure because the showing of 
interest requirement where the craft or class was represented was 
greater than 50 percent under the prior rule.
    While not as direct as Right to Work might prefer, the Board's 
current

[[Page 75549]]

election process allows employees to decertify a union and has been 
utilized for that purpose. The Board previously had a higher showing of 
interest requirement where a craft or class of employees was already 
represented. As noted during the Board's prior rulemaking proceedings, 
this policy was based on the Board's desire to preserve stability in 
collective bargaining relationships. 75 FR 26062, 26078 (May 11, 2010). 
The Board has required a majority showing of interest before 
authorizing an election that would disturb an existing collective 
bargaining relationship. Consistent with Congressional intent, the 
Board will require a 50 percent showing of interest for any 
application, leaving current decertification procedures virtually 
unchanged. Because the proposed rules will not affect the 
decertification process, this is not an issue that the Board will 
address at this time. Furthermore, Right to Work points to the NLRA's 
decertification procedure. As the Board noted the last time this issue 
was raised in rulemaking proceedings, the NLRA specifically provides 
for a decertification process. The 1947 Taft-Hartley Amendments to the 
NLRA added a provision allowing an employee, group of employees, or any 
individual or labor organizations acting on their behalf to file a 
petition asserting that the currently certified or recognized 
bargaining representative no longer represents the employees in the 
bargaining unit. 29 U.S.C. 159(c)(1)(A)(ii). No similar provisions have 
been included in the RLA.

IV. Conclusion

    Based on the rationale in the proposed rule and this rulemaking 
document, the Board hereby adopts provisions of the proposal and 
clarification as a final rule.

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.). The rule will not directly 
affect any small entities as defined under the Regulatory Flexibility 
Act.

National Environmental Policy Act

    This rule 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 Part 1206

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

    Accordingly, as set forth in the preamble, the NMB amends 29 CFR 
part 1206 as follows:

PART 1206--HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR 
ACT

0
1. The authority section for 29 CFR part 1206 continues to read as 
follows:

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

0
2. Revise Sec.  1206.1 to read as follows:


Sec.  1206.1  Run-off elections.

    (a) In an election among any craft or class where three or more 
options (including the option for no representation) receive valid 
votes, if no option receives a majority of the legal votes cast, or in 
the event of a tie vote, the Board shall authorize a run-off election.
    (b) In the event a run-off election is authorized by the Board, the 
names of the two options which received the highest number of votes 
cast in the first election shall be placed on the run-off ballot, and 
no blank line on which voters may write in the name of any organization 
or individual will be provided on the run-off ballot.
    (c) Employees who were eligible to vote at the conclusion of the 
first election shall be eligible to vote in the run-off election 
except:
    (1) Those employees whose employment relationship has terminated; 
and
    (2) Those employees who are no longer employed in the craft or 
class.


0
3. Revise Sec.  1206.2 to read as follows:


Sec.  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, 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.
    (b) Any intervening individual or organization must also produce 
proved authorizations (checked and verified as to date, signature, and 
employment status) from at least fifty (50) percent of the craft or 
class of employees involved to warrant placing the name of the 
intervenor on the ballot.


Sec.  1206.5  [Removed]

0
4. Remove Sec.  1206.5.


Sec. Sec.  1206.6 and 1206.7  [Redesignated as Sec. Sec.  1206.5 and 
1206.6]

0
5. Redesignate Sec. Sec.  1206.6 and 1206.7 as Sec. Sec.  1206.5 and 
1206.6.

0
6. Add Sec.  1206.7 to read as follows:


Sec.  1206.7  Amendment or rescission of rules in this part.

    (a) The Board may at any time amend or rescind any rule or 
regulation in this part by following the public rulemaking procedures 
under the Administrative Procedure Act (5 U.S.C. 553) and after 
providing the opportunity for a public hearing.
    (b) The requirements of paragraph (a) of this section shall not 
apply to any rule or proposed rule to which the third sentence of 
section 553(b) of the Administrative Procedure Act applies.
    (c) Any interested person may petition the Board, in writing, for 
the issuance, amendment, or repeal of a rule or regulation in this 
part. An original and three copies of such petition shall be filed with 
the Board in Washington, DC, and shall state the rule or regulation 
proposed to be issued, amended, or repealed, together with a statement 
of grounds in support of such petition.


Sec.  1206.8  [Removed]

0
7. Remove Sec.  1206.8.

    Dated: December 18, 2012.
Mary Johnson,
General Counsel, National Mediation Board.
[FR Doc. 2012-30853 Filed 12-20-12; 8:45 am]
BILLING CODE 7550-01-P