Representation Election Procedure, 26062-26089 [2010-11026]

Agencies

• National Mediation Board

[Federal Register Volume 75, Number 90 (Tuesday, May 11, 2010)]
[Rules and Regulations]
[Pages 26062-26089]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11026]


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NATIONAL MEDIATION BOARD

29 CFR Parts 1202 and 1206

[Docket No. C-6964]
RIN 3140-ZA00


Representation Election Procedure

AGENCY: National Mediation Board.

ACTION: Final rule.

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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 amending its Railway Labor Act rules to provide that, in 
representation disputes, a majority of valid ballots cast will 
determine the craft or class representative. 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.

DATES: Effective Date: The final rule is effective June 10, 2010.

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

SUPPLEMENTARY INFORMATION:

I. Background

    Under Section 2, Ninth of the Railway Labor Act (RLA or Act), it is 
the duty of the National Mediation Board (NMB or Board) 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.'' 45 
U.S.C. 152, Ninth. 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 NMB to hold a secret ballot election or 
employ ``any other appropriate method'' to ascertain the identities of 
duly designated employee representatives. Section 2, Ninth. 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.
    The language of Section 2, Fourth and Section 2, Ninth was added to 
the RLA as part of the 1934 amendments and was directed at the 
continuing problem of company unions. As the Supreme Court noted:

    Experience had shown, before the amendment of 1934, that when 
there was no dispute as to the organizations authorized to represent 
the employees, and when there was willingness of the employer to 
meet such representative for a discussion of their grievances, 
amicable adjustment of differences had generally followed and 
strikes had been avoided. On the other hand, a prolific source of 
dispute had been the maintenance by the railroads of company unions 
and the denial by railway management of the authority of 
representatives chosen by their employees.

Virginian Ry. Co. v. System Fed'n No. 40, 300 U.S. 515, 545-546 (1937) 
(citations omitted). The Report of the House Committee on Interstate 
and Foreign Commerce on the 1934 amendments states that

[t]he Railway Labor Act of 1926, now in effect, provides that 
representatives of the employees, for the purpose of collective 
bargaining, shall be selected without interference, influence, or 
coercion by railway management, but it does not provide the 
machinery necessary to determine who are to be such representatives. 
These rights of the employees under the present act are denied by 
railway managements by their disputing the authority of the freely 
chosen representatives of the employees to represent them. A 
considerable number of railway managements maintain company unions, 
under the control of the officers of the carriers, and pay the 
salary of the employees' representatives, a practice that is clearly 
contrary to the purpose of the present Railway Labor Act, but it is 
difficult to prevent it because the act does not carry specific 
language in respect to that matter.

H.R. Rep. No. 73-1944, at 1 (1934). Accordingly, the report notes that 
``[m]achinery is provided for the taking of a secret ballot to enable 
the Board of Mediation to determine what representatives the employees 
desire to have negotiate for them with managements of the carriers in 
matter affecting their wages and working conditions.'' Id.
    The Board originally interpreted the language of Section 2, Fourth 
as requiring a majority of all those eligible to vote to choose a 
representative rather than a majority of the votes cast. As noted in 
the Notice of Proposed Rulemaking (NPRM), however, this interpretation 
of Section 2, Fourth, was reached ``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 (1935). That same 
Board also noted, ``[w]here, however, the parties to a dispute agreed 
among themselves that they would be bound by a majority of the votes 
cast, the Board took the position that it would certify on this basis, 
on the ground that the Board's duties in these cases are to settle 
disputes among employees.'' Id. In 1947, United States Attorney General 
Tom C. Clark, responding to a question from the NMB on its authority 
under Section 2, Fourth, stated his opinion that


the National Mediation Board has the power to certify a 
representative which receives a majority of the votes cast at an 
election despite the fact that less than a majority of those 
eligible to vote participated in the election. While the National 
Mediation Board has this power, it need not exercise it 
automatically upon finding that a majority of those participating 
were in favor of a particular representative.

40 U.S. Op. Att'y Gen. 541, at 544-545 (1947).

    On November 3, 2009, the NMB published a NPRM in the Federal 
Register inviting public comments for 60 days on a proposal to amend 
its RLA rules to provide that, in representation disputes, a majority 
of ballots cast will determine the craft or class representative. 74 FR 
56,750. In its NPRM, the Board stated its belief, based on the language 
of the RLA, principles of statutory construction, and Supreme Court 
precedent, that it has the authority to reasonably interpret Section 2, 
Fourth to allow the Board to certify as collective bargaining 
representative any organization which receives a majority of valid 
ballots cast in an election. While acknowledging that it has reaffirmed 
its policy of certifying a representative based on a majority of 
eligible voters on several occasions since 1935, the Board noted that 
this construction of Section 2, Fourth was adopted in an earlier era, 
under circumstances that are different from those prevailing in the 
rail and air industries today. Further, the Board noted that the 
current election procedures provide no opportunity for

[[Page 26063]]

employees to cast a ballot against representation and presume that the 
failure or refusal of an eligible voter to participate in an NMB-
conducted election to be the functional equivalent of a ``no union'' 
vote. Specifically, the Board proposed modifying its election 
procedures to determine the craft or class representative by a majority 
of valid ballots cast and provide employees with an opportunity to vote 
``no'' or against union representation. Subsequently, the NMB published 
a Notice of Meeting in the Federal Register inviting interested parties 
to attend an open meeting with the Board to share their views on the 
proposed rule changes regarding representation election procedures. 
Meeting Notice, 74 FR 57,427 (Nov. 6, 2009).

II. Notice-and-Comment Period

    In response to the NPRM, the NMB received 24,962 submissions during 
the official comment period from a wide variety of individuals, 
employees, air and rail carriers, trade and professional associations, 
labor unions, Members of Congress, law firms, and others. (Comments may 
be viewed at the NMB's Web site at https://www.nmb.gov) Additionally, 
the NMB received written and oral comments from the 31 individuals and 
representatives of constituent groups under the RLA that participated 
in the December 7, 2009 open meeting.
    Nearly 98 percent of the comments received in response to the NPRM 
were either: (1) Very general statements; (2) personal anecdotes of 
experience or participation in the NMB's election procedures; or (3) 
identical or nearly identical ``form letters'' or ``postcards'' sent in 
response to comment initiatives sponsored by various constituent groups 
such as the International Association of Machinists (IAM) and the 
Association of Flight Attendants (AFA). The remaining comments reflect 
strongly held views for and against the NMB's proposed change. The NMB 
has carefully considered all of the comments, analyses, and arguments 
for and against the proposed change.
    Although the Board is aware that the notice-and-comment period of 
the Administrative Procedure Act (APA) is not a referendum, it notes 
that the majority of the comments it received supported the proposed 
change. In addition to agreeing with the Board's position that it has 
the statutory authority to make this change and that the legislative 
history of the RLA supports such a change, these commenters applauded 
the NPRM as a positive change that would ensure that the majority of 
those who vote in a representation election will determine the outcome 
of that election. Many commenters in support of the NPRM noted that the 
current rule is contrary to common standards of democracy where the 
outcome of an election is determined by the majority of those who vote. 
Because a number of employees will not participate in any election, 
they argued, the current rule handicaps unions that must achieve what 
amounts to a ``supermajority'' in order to secure representation. Some 
commenters supporting the NPRM stated that the Board should follow the 
procedures utilized by the National Labor Relations Board (NLRB) so all 
employees under private-sector Federal labor law will be subject to 
uniform representation election procedures. They argue that the 
election procedures in NMB elections can be confusing to some employees 
and frustrating to others who wish to vote against union representation 
but have no way to do so. Congressman Glenn Nye and others state that 
aviation and rail workers should not be subject to a more ``onerous 
process'' than other workers when deciding whether to seek union 
representation. Other commenters in favor of the NPRM argue that there 
has been a decrease in union organizing and this change will help 
reverse that trend. A number of political scientists stated that ``the 
proposed rule change represents a shift from long-established practice, 
but it is a shift long overdue. Since 1935, when the [original 
procedure] was adopted, electoral technology has improved and our 
perspective on good electoral practice progressed. The old rule 
reflects the thinking of an earlier era; the proposed change is 
consistent with the current state of our knowledge and understanding.'' 
\1\ Some of the arguments in favor of the NPRM will be discussed in 
greater detail in the discussion that follows; however, the preamble 
will focus on the Board's response to the substantive arguments raised 
by those opposed to the NPRM.
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    \1\ Professors Margaret Levi, Elinor Ostrom, Robert Keohane, 
Robert Putnam, Peter Katzenstein, Henry Brady, Dianne Pinderhughes, 
Kent Jennings, Ira Katznelson, and Theda Skocpol submitted a comment 
in support of the NPRM.
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III. Summary of Comments on the NMB's Proposed Change To its Election 
Procedures

    While the NPRM only concerns one aspect of the Board's election 
procedures, namely the Board's interpretation of Section 2, Fourth in 
determining how best to ascertain the clear, uncoerced choice of a 
bargaining representative, if any, by the affected employees, the 
commenters expressed widely divergent views of the proposed change and 
the Board's deliberation and process in formulating the NPRM. The major 
comments received and the Board's response to those comments are as 
follows.

A. Motions for Disqualification

    Following the close of the comment period under the NPRM, by letter 
dated January 8, 2010, ATA \2\ requested that Board Members Harry 
Hoglander and Linda Puchala disqualify themselves from further 
participation in the rulemaking because the ``available facts give the 
appearance that Members Hoglander and Puchala have prejudged the 
specific issues.'' On January 15, 2010, Right to Work also filed a 
motion requesting the disqualification of Members Hoglander and 
Puchala. After careful review of the arguments presented, there is no 
basis for either Member Hoglander's or Member Puchala's recusal or 
disqualification from the rulemaking. Rulemaking requires a decision 
maker to choose between competing priorities in proposing a rule. The 
subject matter of a rulemaking--and this one is no exception--is often 
controversial. Prejudgment and/or bias is not established by the mere 
fact, however, that a proposal is controversial or that the decision 
maker brings his or her own beliefs, philosophy and experience to bear 
when choosing between two competing interests to propose a policy 
course. As discussed below, ATA and Right to Work have failed to 
establish ``a clear and convincing showing that [an agency member] has 
an unalterably closed mind on matters critical to the disposition of 
the rulemaking.'' Ass'n of Nat'l Adver. v. Fed. Trade Comm'n, 627 F2d 
1151, 1154 (DC Cir. 1979).
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    \2\ ATA members American Airlines, Continental Airlines, 
Southwest Airlines, United Airlines, UPS Airlines, and US Airways 
did not join in this motion.
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    ATA and Right to Work each contend \3\ that ``[p]ublicly available 
facts give the appearance that Members Hoglander and Puchala have 
predetermined the issues raised by the November 3 NPRM.'' Neither ATA 
nor Right to Work, however, cites any statements by either Member 
Hoglander or Member Puchala concerning the subject matter of the NPRM 
as the basis for their assertion. Instead, they rely on the following 
as evidence of bias and prejudgment:
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    \3\ Both motions may be viewed at the NMB's Web site at https://www.nmb.gov.

    (1) An alleged inadequacy of the Board's process for proposing 
changes to its election procedure rules, by publishing an NPRM in 
the Federal Register with a 60-day comment

[[Page 26064]]

period and holding an open public meeting rather than a hearing 
similar to the one held in Chamber of Commerce, 14 NMB 347 (1987);
    (2) Chairman Dougherty's November 2, 2009 letter to Republican 
United States Senators McConnell, Isakson, Roberts, Coburn, Gregg, 
Enzi, Hatch, Alexander, and Burr in which she asserted that she was 
excluded from drafting of the NPRM and excluded from discussions 
regarding the timing of the NPRM;
    (3) Inferences drawn from the timing of the NPRM and 
representation disputes in several large crafts or classes of 
employees at the post-merger Delta Air Lines. ATA and Right to Work 
also rely on statements by Association of Flight Attendants-CWA 
(AFA) President Patricia Friend during an August 24, 2009 \4\ 
interview on the Union Edge Talk Radio Show regarding the Board's 
composition and election rules and AFA's application regarding the 
Flight Attendant craft or class at Delta; and
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    \4\ ATA's motion cites the original broadcast date of the 
interview as August 25, 2009, however, a search of the archives at 
https://theunionedge.com reveals the broadcast date to be August 24, 
2009.
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    (4) The leadership positions that Members Hoglander and Puchala 
previously held with the Air Line Pilots Association (ALPA) and the 
AFA, respectively.

It cannot be questioned that parties to an administrative proceeding 
have a right to a fair and open proceeding before an unbiased decision 
maker. In their motions, ATA and Right to Work challenge both the 
adequacy and fairness of the procedure chosen by the Board majority to 
propose a change to the election rules and the Board majority's 
impartiality as decision makers. As discussed below, the Board majority 
finds that there is no merit to either challenge.
    With regard to the procedure chosen by the Board majority, ATA and 
Right to Work characterize informal rulemaking under the APA as a 
flawed process with an inadequate comment period that did not provide 
for a thorough evidentiary hearing that included the taking of 
testimony under oath and the cross-examination of witnesses. By 
utilizing the notice-and-comment procedures of informal rulemaking 
under the APA, however, the Board followed an open administrative 
process and interested persons were given an adequate comment period 
\5\ as well as access to all meeting testimony and comments received. 5 
U.S.C. 553(c). Under the APA, the trial-like hearing advocated by ATA 
and Right to Work is required only when an agency engages in formal 
rulemaking. Formal rulemaking, however, is used when an agency's rules 
are required by statute ``to be made on the record after opportunity 
for an agency hearing.'' Id. The RLA contains no such provision and 
such formal procedures have long been disfavored when not required by 
statute. See, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Res. 
Def. Council, 435 U.S. 519 (1978).
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    \5\ Executive Order 12,866 states that ``each agency should 
afford the public a meaningful opportunity to comment on any 
proposed regulation, which in most cases should include a comment 
period of not less than 60 days.'' Exec. Order No. 12,866, 58 FR 
51,735 (1993).
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    ATA and Right to Work also assert that there is evidence of bias in 
the Agency's failure to follow a procedure similar to that used in 
Chamber of Commerce, 14 NMB 347 (1987), and to conduct an evidentiary 
hearing to consider whether to change its election rules. See also In 
re Chamber of Commerce, 12 NMB 326 (1985) (notice of hearing). In that 
case, the Board chose to not follow the APA procedures described above 
because it had not yet decided whether to initiate the rulemaking 
process in response to the United States Chamber of Commerce's 
(Chamber) petition to amend the Board's rules. In its decision on the 
format of the proceeding with regard to those petitions, the Board 
stated that ``5 U.S.C. 553 refers to the actual rule-making process, a 
process which the Board has not initiated at this time, should it ever 
do so.'' In re Chamber of Commerce, 13 NMB 90, 93 (1986). The Board 
further stated that, ``in making its determination of whether or not to 
propose amendments to its rules, [the NMB] has the discretion to 
conduct the procedures preliminary to that determination in any manner 
which it finds to be appropriate.'' Id. at 94 (emphasis added). Thus, 
the Board has in no way bound itself to the procedures it chose to 
follow in the Chamber of Commerce case. Further, in the Board's recent 
decision in Delta Air Lines, Inc., 35 NMB 129, 132 (2008), it stated 
that it would not make a change to its election procedures ``without 
first engaging in a complete and open administrative process to 
consider the matter.'' Contrary to the assertions of ATA and Right to 
Work, in deciding to adopt this change through the informal rulemaking 
provisions of the APA, the Board has followed the appropriate procedure 
that provided for public participation, for fairness to the affected 
parties, and for the agency to have before it information relevant to 
the particular administrative problem. MCI Telecommunications Corp. v. 
Fed. Commc'n Comm'n, 57 F.3d 1136, 1141 (DC Cir. 1995).
    With regard to the impartiality of Members Hoglander and Puchala as 
agency decision makers, ATA and Right to Work contend that the facts 
show that they have prejudged the issues and should be disqualified 
from further participation. In National Advertisers, 627 F.2d at 1154, 
the court found that disqualification of a decision maker in a 
rulemaking proceeding is required ``only when there is a clear and 
convincing showing that [an agency member] has an unalterably closed 
mind on matters critical to the disposition of rulemaking.'' In 
reaching this decision, the court rejected the contention that the 
standard used to disqualify a decision maker in an adjudicatory 
hearing, namely whether ``a disinterested observer may conclude that 
the [decision maker] has in some measure adjudged the facts as well as 
the law of a particular case in advance of hearing it,'' because of the 
fundamental differences between the nature of adjudicatory proceedings 
and the nature of rulemaking proceedings. Id. at 1168 (citing 
Cinderella Career & Finishing Sch., Inc. v. Fed. Trade Comm'n, 425 F.2d 
583, 591 (DC Cir. 1970)). The court noted that:

    The object of the rule making proceeding is the implementation 
or prescription of law or policy for the future, rather than the 
evaluation of a respondent's past conduct. Typically, the issues 
relate not to the evidentiary facts, as to which the veracity and 
demeanor of witnesses would often be important, but rather to the 
policy-making conclusions to be drawn from the facts * * *. 
Conversely, adjudication is concerned with the determination of past 
and present rights and liabilities. Normally there is involved a 
decision as to whether past conduct was unlawful, so that the 
proceeding is characterized by an accusatory flavor and may result 
in disciplinary action.

Id. at 1160 (quoting Attorney General's Manual on the Administrative 
Procedure Act 14 (1947)).

    Because the object of rulemaking is the implementation of law or 
policy to the future, the agency decision maker functions like a 
legislator when participating in rulemaking. The administrator is 
expected to bring his or her views and insights to bear on the issues 
confronting the agency. In requiring ``compelling proof'' that an 
administrator is unable to carry out his or her duties in a 
constitutionally permissible manner to compel disqualification, the 
court stated that:

[t]he requirements of due process clearly recognize the necessity 
for rulemakers to formulate policy in a manner similar to 
legislative action * * *. We would eviscerate the proper evolution 
of policymaking were we to disqualify every administrator who has 
opinions on the correct course of his agency's future action.''

Id. at 1174. For example, in National Advertisers, 627 F.2d at 1154, 
the court determined that the Chairman of the

[[Page 26065]]

Federal Trade Commission (FTC or Commission) was not disqualified from 
participating in rulemaking proposing restrictions on advertising 
directed at children despite public comments in which he (1) asserted 
that children could not distinguish between advertising and other forms 
of communication; (2) cited Supreme Court precedent giving the 
Commission great discretion in declaring unfair trade practices; and 
(3) discussed the negative effects of advertising on children. The 
court concluded that these statements were a discussion of a legal 
theory by which the Commission could adopt a rule if circumstances 
warranted and did not demonstrate the Chairman's unwillingness or 
inability to consider opposing arguments.
    As noted above, ATA and Right to Work do not rely on any statements 
by either Member Hoglander or Member Puchala to establish bias and 
prejudgment. They rely only on statements in an interview given by 
Patricia Friend, President of AFA; the opinion of Chairman Dougherty 
expressed in a letter to U.S. Senators; and inferences drawn by ATA and 
Right to Work from the timing of the NPRM and the Board Members' 
biographies. These statements, opinions, and inferences are 
insufficient to compel either recusal or disqualification. The 
transcript of Ms. Friend's interview states in relevant part:

    Host: And we were talking just very briefly about the new member 
that has been appointed to the NMB, Linda Puchala and President 
Friend can you tell us a little bit about her and what her 
background is?
    Pat Friend: Yes, Linda was--I think I mentioned this just before 
the break--she was from--if I get my dates right, from like 1979 to 
1986 the President of the Association of Flight Attendants. So we've 
known her for a long time and then for the past five or six years 
she actually has worked at the National Mediation Board specifically 
doing some mediation, but mostly running the alternate dispute 
resolution part of the Board. Linda is in my experience, is about 
one of the best consensus builders that I've ever met so we were 
just thrilled that we were able to get her nominated and confirmed 
and to do it in really a timely fashion, you know, I can't take 
credit, full credit for this, because we had lots of help with in 
the labor movement and within the Obama administration, but for a 
second tier agency which the National Mediation Board is, to get a 
member nominated and confirmed before July was really an outstanding 
effort. There was a lot of people working on it and--but, it was 
very, very important to us that we have a properly, sort of fair, 
board in place before this election between the Northwest and the 
Delta Flight attendants takes place.

Exhibit A, p. 6 January 4, 2010 Written Comment in response to NPRM 
from Delta Airlines. These statements have no bearing on whether or not 
Member Puchala has a closed mind with regard to the NPRM. Ms. Friend's 
statement establishes only her desire for a fair administrative process 
and her support for Member Puchala's appointment, describing Member 
Puchala as a ``consensus builder.'' She is not advocating that the 
Board make specific changes to its procedures. Further, Ms. Friend was 
not alone in making public statements in support of Member Puchala. In 
a May 5, 2009, Business Review article, ``Delta backs Obama's labor 
board nominee,'' Mike Campbell, Delta executive vice president of human 
resources and labor relations, stated ``Ms. Puchala has years of 
valuable experience, including time with the NMB. She enjoys broad 
support among the airline industry and labor community. We look forward 
to her confirmation to become a member of the NMB.'' In that same 
interview, Campbell also stated, ``It is equally important to our 
employees to quickly resolve representation for those workgroups in 
which representation remains unresolved. To that end, we urge the 
Senate to confirm Linda Puchala as soon as possible.''
    ATA and Right to Work also rely on the differing opinions among the 
Board Members as to whether and how to consider amending the Board's 
election procedures. As Chairman Dougherty's dissent to the NPRM makes 
clear, she advocated a different approach to the Board's consideration 
of amending the election rules. The Board majority, however, followed 
the mandates of the APA in considering, drafting, adopting, and 
promulgating the NPRM. The APA requires that a NPRM must include the 
following: ``(1) A statement of the time, place, and nature of public 
rulemaking proceedings; (2) reference to the legal authority under 
which the rule is proposed; and (3) either the terms or substance of 
the proposed rule or a description of the subjects and issues 
involved.'' 5 U.S.C. 553(b). The November 3, 2009 NPRM met these 
requirements. To the extent that ATA and Right to Work question the 
Board majority's deliberative process, the Board notes that this 
process is an internal agency matter and outside the scope of the 
rulemaking proceedings.
    It is clear that the Chairman disagreed with her colleagues on both 
whether any change to the current voting procedures is necessary and 
how such a change should be proposed. However, the Chairman's 
dissenting views were published in the Federal Register with the NPRM 
and have been incorporated in many comments opposed to the NPRM. Her 
admittedly different policy view as a dissenting member does not 
establish that Members Hoglander and Puchala were not free, in theory 
and in reality, to change their mind upon consideration of the 
presentations and comments made by those who would be affected. As the 
court in National Advertisers, recognized:

    An administrator's presence within an agency reflects the 
political judgment of the President and Senate. As Judge Prettyman 
of this court aptly noted, a ``Commission's view of what is best in 
the public interest may change from time to time. Commissions 
themselves change, underlying philosophies differ, and experience 
often dictates changes.''

627 F.2d 1151, 1174 (quoting Pinellas Broadcasting Co. v. Fed. Commc'n 
Comm'n, 230 F.2d 204, 206 (DC Cir. 1956), cert. denied. 350 U.S. 1107 
(1956)).
    ATA and Right to Work infer some bias because of the existence of 
representation disputes among employees at Delta. As discussed more 
fully below in Section III.C., the Board, however, has continued to 
carry out all its obligations in representation matters including 
investigating representation disputes, holding elections and certifying 
the results of those elections during the rulemaking process. Under 
Section 2, Ninth of the RLA, neither the Board nor carriers may 
initiate a representation proceeding because ``Congress left no 
ambiguity in Section 2, Ninth: the Board may investigate a 
representation dispute only upon request of the employees involved in 
the dispute.'' Ry. Labor Executives' Ass'n v. NMB, 29 F.3d 655, 664 (DC 
Cir. 1994) (emphasis in original) (deciding the narrow issue of who can 
initiate a representation dispute under Section 2, Ninth). Therefore, 
the timing of when employees or their representatives file applications 
or withdraw those applications is not within the control of the Board.
    Right to Work also contends that an inference of bias and 
prejudgment should be drawn from the fact that Members Hoglander and 
Puchala previously held leadership positions in unions. This contention 
has no merit. An administrative official is presumed to be objective 
and ``capable of judging a particular controversy fairly on the basis 
of its own circumstances.'' United States v. Morgan, 313 U.S. 409, 421 
(1941). Whether the official is engaged in adjudication or rulemaking, 
the mere proof that he or she has taken a public position, expressed 
strong views or holds an underlying philosophy with respect an issue in 
dispute cannot overcome that presumption. Hortonville

[[Page 26066]]

Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482 (1976). 
See also C & W Fish Co. v. Fox, 931 F.2d 1556, 1564-1565 (DC Cir. 1991) 
(finding no clear and convincing evidence of an unalterably closed mind 
where immediately prior to appointment to position where he adopted a 
drift gillnet ban, agency decision maker had served as chairman of the 
Florida Marine Fisheries Commission, was an outspoken advocate of 
banning drift gillnets, and publicly stated that ``this kind of gear 
[i.e., drift gillnets] should be eliminated.''). Thus, while the prior 
union positions held by Members Hoglander and Puchala may evince an 
underlying philosophy, it is hardly clear and convincing evidence of an 
unalterably closed mind.
    ATA and Right to work have presented no evidence, let alone clear 
and convincing evidence, that establishes that either Member Hog lander 
or Member Puchala are unwilling to appropriately consider comments on 
the proposed rule or possess an unalterably closed mind on the issues 
in the NPRM. Accordingly, neither recusal nor disqualification is 
necessary.

B. Process Leading to the NPRM

    In the oral and written statements received at the December 7, 2009 
meeting and in written comments submitted pursuant to the NPRM, 
commenters including Delta Airlines, Inc. (Delta), the Air Transport 
Association (ATA),\6\ the Regional Airline Association (RAA), the 
Airline Industrial Relations Conference (Air-Con), the National Railway 
Labor Conference (NRLC), the labor and employment law firm of Littler 
Mendelson, P.C. (Littler), the National Air Transportation 
Association's Airline Services Council (ASC), Claude Sullivan, an RLA 
practitioner, the National Right to Work Legal Defense Foundation, 
Inc., (Right to Work)), Regional Air Cargo Carriers Association 
(RACCA), Bombardier Aerospace/Flexjet (Flexjet) and some Members of 
Congress suggest that, by proceeding with the NPRM, the Board has 
compromised its neutrality and surrendered the integrity necessary to 
carry out its representation duties under the Act. These commenters 
rely on statements in an August 2009 interview given by AFA president 
Patricia Friend, the withdrawal of pending applications involving 
employees at Delta by the IAM and AFA around the time of the 
publication of the NPRM, and two letters from Chairman Dougherty to 
United States Senators Johnny Isakson, Bob Corker, Jim Bunning, Robert 
Bennett, Saxby Chambliss, George Voinovich and Orrin Hatch as support 
for their belief that the Board's actions leading up to the NPRM were 
inadequate and improper. The commenters suggest that the Chairman's 
correspondence indicates that the Board majority acted with undue haste 
and followed an inadequate internal process in deciding to proceed with 
the NPRM. Other commenters, including a number of Republican Members of 
the United States House of Representatives,\7\ simply characterized the 
NPRM as ``a politically motivated decision that tilts airline and rail 
representation elections in the favor of organized labor. This decision 
is too important to be decided by two appointed and unelected Democrats 
who have chosen to ignore legal and policy precedents that have 
governed representation rules for airline and rail employees for more 
than 75 years.''
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    \6\ ATA is the principal trade and service organization of the 
Unites States' scheduled airline industry. The following members of 
the ATA did not join in the written statement submitted at the 
December 7 open meeting: Continental Airlines, Inc., and American 
Airlines, Inc. In addition, ATA member Southwest Airlines, which is 
neutral on the NPRM, filed a separate comment. Southwest's position 
is discussed in detail later in this document.
    \7\ A comment opposed to the proposed change was submitted by 
Representatives Nathan Deal, Roy Blunt, Paul C. Broun, Gregg Harper, 
John A. Boehner, John K. Kline, Lynn A. Westmorland, Jack Kingston, 
Bob Goodlatte, Gary Miller, Pete Sessions, John Campbell, John 
Linder, Doug Lamborn, Jean Schmidt, Vern Buchanan, Joe Wilson, Sue 
Myrick, Mike Rogers, Rob Bishop, Bob Inglis, Dean Heller, Harold 
Rogers, Phil Gingrey, Devin Nunes, Wally Herger, Eric Cantor, Kevin 
McCarthy, and Jason Chaffetz.
---------------------------------------------------------------------------

    The Board disagrees with those comments that assert that it has 
abandoned its neutrality at any point during this rulemaking. The Board 
majority followed the mandates of the APA in considering, drafting, 
adopting, and promulgating the NPRM. The APA requires that a NPRM must 
include the following: ``(1) A statement of the time, place, and nature 
of public rulemaking proceedings; (2) reference to the legal authority 
under which the rule is proposed; and (3) either the terms or substance 
of the proposed rule or a description of the subjects and issues 
involved.'' 5 U.S.C. 553(b). The November 3, 2009 NPRM met these 
requirements. To the extent that the dissent and other commenters 
question the Board majority's deliberative process, the Board notes 
that this process is an internal agency matter and outside the scope of 
the rulemaking proceedings. In the NPRM, the Board majority expressed a 
view that a change should be proposed and Chairman Dougherty disagreed. 
Both views, however, were expressed in the NPRM and have served as a 
basis for comment.
    Some Members of Congress suggest that the proposed change to the 
election procedure is too important to be entrusted to the appointed 
members of the NMB. For the following reasons, the Board disagrees. 
First, in the NPRM, the Board is proposing a change to its own 
interpretation of the RLA. Thus, the ``legal and policy precedents'' at 
issue are the Board's own determinations. It is without doubt that an 
agency is free to change its interpretations and its policies so long 
as the new policy or interpretation is permissible under the statute, 
there are good reasons for it, and the agency believes it to be better. 
Fed. Commc'n Comm'n v. Fox Television Stations, 129 S. Ct. 1880, 1811 
(2009). Second, there are safeguards applicable to the Board's actions. 
While it is true that the Board Members are not elected officials 
subject to recall, they are subject to confirmation by the Senate and 
have limited terms. Third, acting pursuant to the notice-and-comment 
procedures of informal rulemaking under the APA, the Board followed an 
open administrative process and interested persons were given an 
adequate comment period as well as access to all meeting testimony and 
comments received. 5 U.S.C. 553(c).\8\ Fourth, under the APA, any final 
rule promulgated by the Board is subject to judicial review.
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    \8\ Under the APA, a trial-like hearing where parties can submit 
evidence and cross examine witnesses, advocated by some commenters, 
is only required when an agency engages in formal rulemaking. Formal 
rulemaking, however, has long been disfavored where not required by 
statute. The RLA does not require formal rulemaking. As the Supreme 
Court noted in Vermont Yankee, 435 U.S.at 547, a standard of review 
that would cause agencies to engage in formal rulemaking in all 
instances would lead to a loss of ``all of the inherent advantages 
of informal rulemaking.''
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C. NPRM's Effect on Processing of Representation Cases

    Many of the commenters who suggested that the Board followed 
improper procedures in formulating the NPRM also suggest, as noted 
above, that the NPRM has adversely affected the neutrality and 
integrity of the Board's representation case processing. Delta, in 
particular, states that it and its employees have been ``singled out 
for discriminatory treatment'' as a result of the NPRM since 
``[r]epresentation cases at other carriers filed in the summer of 2009 
have proceeded to resolution under the existing rules; only those at 
Delta have been delayed, and then withdrawn, to await the new rules.'' 
Contrary to these comments, the Board has continued to carry out all 
its

[[Page 26067]]

obligations in representation matters including investigating 
representation disputes, holding elections and certifying the results 
of those elections during the rulemaking process. The Board has also 
followed its standard procedures with respect to the matters involving 
IAM, AFA, and Delta.
    The decision to initiate a representation proceeding is not within 
the Board's control. As the United States Court of Appeals for the 
District of Columbia Circuit stated ``Congress left no ambiguity in 
Section 2, Ninth: the Board may investigate a representation dispute 
only upon request of the employees involved in the dispute.'' Ry. Labor 
Executives' Ass'n, 29 F.3d at 664 (emphasis in original). On July 29, 
2009, AFA filed an application with the Board alleging that Delta and 
Northwest Air Lines (Northwest) constituted a single carrier for 
representation purposes with respect to employees in the Flight 
Attendants craft or class. On August 13, 2009, IAM filed three separate 
applications alleging that Delta and Northwest constituted a single 
carrier for representations purposes with respect to employees in the 
crafts or classes of Plant Guards, Simulator Technicians, and Fleet 
Service. Consistent with the Board's standard practice, each of these 
applications was assigned a ``CR'' file number and was not docketed as 
an ``R'' case.\9\
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    \9\ Applications invoking the Board's services in representation 
disputes are docketed as ``R'' cases. ``CR'' numbers are assigned to 
applications requiring pre-docketing investigation, such as craft or 
class, system, jurisdiction, or other appropriate issues. 
Memorandum: NMB Policy for the Assignment/Conversion of ``CR'' files 
and ``R'' Case Dockets, 7 NMB 131 (1979). Once the pre-docketing 
investigation is complete, the case will be docketed as an ``R'' 
case for resolution pursuant to an election.
---------------------------------------------------------------------------

    Chairman Dougherty's October 28, 2009, letter, relied on by Delta 
and others, expresses her view of the relationship between the Board's 
policy on the use of hyperlinks and AFA's then-pending application 
regarding the Flight Attendants craft or class at Delta. In particular, 
this letter reflects the Chairman's disagreement with her colleagues 
over their conclusion that the Board's hyperlink policy was an issue 
intertwined with the pre-docketing investigation of AFA's application.
    In a notice dated February 28, 2008, the Board stated that it had 
decided to remove the hyperlink to the voting Web site from the 
Agency's Web site as a precautionary measure ``to prevent any outside 
party from possibly tracking the IP address of persons who visit the 
voting Web site.'' Removal of Internet Voting Hyperlink on Board's Web 
site, 35 NMB 92 (2008). Noting that the Board may view use of 
hyperlinks as possible evidence of election interference, the Board 
requested that participants in representation elections not post a 
hyperlink to the Board's voting Web site. Id. Subsequently, the use of 
hyperlinks to the Board's voting Web site in campaign materials became 
an issue in a 2008 representation election among Delta's flight 
attendants. Delta raised concerns about potential interference after a 
hyperlink to the Board's voting Web site was included in e-mails from 
an AFA organizer to flight attendant employees. In a determination, the 
Board noted its policy regarding hyperlinks and while acknowledging 
that the ``hyperlink in this instance was included in an email rather 
than on a Web site,'' it reiterated its statement that ``the Board may 
consider hyperlinks to the voting Web site as possible evidence of 
election interference.'' Notice Re: Carrier and Union Conduct, 35 NMB 
158 (2008). On July 22, 2009, several days before it filed its 
application, AFA requested the Board to reconsider its hyperlink policy 
``because of anticipated representation elections at Delta Airlines.'' 
In the view of the Board majority, the issue of the use of hyperlinks 
in representation elections had to be resolved before the Board could 
move forward with the investigation of AFA's application.
    Shortly before the publication of the NPRM, IAM sought withdrawal 
of its Fleet Service application. Shortly after the publication of the 
NPRM, AFA sought withdrawal of its Flight Attendant application. 
Similar to the decision to initiate representation proceedings, the 
decision whether to withdraw an application rests solely with the 
organization that filed the application. Upon receipt of those 
requests, again pursuant to its standard procedure, the Board granted 
the respective withdrawals. While the NMB's bar rules at 29 CFR 
1206.4(b)(3) provide for a one-year bar where a ``docketed 
application'' has been dismissed based on a withdrawal of the 
application, no bar applies where the application was assigned a CR 
file number and not ``docketed'' in the well-established sense of the 
term by conversion to an ``R'' case. US Airways, Inc., 27 NMB 565 
(2000); Trans World Airlines/Ozark Airlines, 14 NMB 343 (1987). The IAM 
application with respect to Plant Guards remains under investigation. 
The Board issued its single carrier determination with respect to the 
Simulator Technician craft or class on December 23, 2009, converted the 
application to an ``R'' case, and authorized a representation election 
in the Simulator Technician craft or class at Delta on January 11, 2010 
with a tally held on February 25, 2010.

D. The Board's Statutory Authority for the Proposed Change

    Almost all of the comments received in opposition to the NPRM 
question whether the NMB possesses the statutory authority to make the 
proposed change to its election rules. For example, Delta cites ``plain 
language'' of Section 2, Fourth and Section 2, Ninth for the 
proposition that the choice of representative must be made by a 
``majority'' of employees in the craft or class, and states that the 
Supreme Court has approved the Board's long-standing interpretation 
that ``majority'' is a majority of eligible voters rather than a 
majority of ballots cast. Several commenters opposed to the NPRM state 
that language of Section 2, Fourth which provides that ``[t]he majority 
of the craft or class of employees shall have the right to determine 
who shall be the representative of the craft or class of employees for 
the purposes of this chapter,'' is a clear statutory mandate that the 
Board must certify a representative on the basis of the majority of 
eligible voters.
    In contrast, those comments supporting the NPRM asserted that the 
Board has clear statutory authority and discretion to adopt the 
proposed change to its election process. For example, the TTD states 
that ``[t]he language of the RLA itself dictates no particular 
procedure to determine the majority will, much less the election 
procedure currently followed by the Board.'' The TTD, IAM, AFA, and 
others note that during the Board's history it has used a variety of 
methods to resolve representation disputes, exercising its discretion 
as circumstances warranted.
    The commenters who question the Board's statutory authority 
essentially contend that the language of Section 2, Fourth is 
unambiguous and compels the NMB to certify representatives as it does 
under its existing procedures: when a majority of eligible voters in 
the craft or class cast vote in favor of representation. Thus, these 
commenters contend that ``majority of any craft or class of employees'' 
must only be interpreted to mean the majority of all eligible voters. 
Having reviewed these comments, the NMB, however, is not persuaded and 
continues to believe that the language of the statute is ambiguous and 
that the proposed change--to certify a representative on the basis of a 
majority of valid ballots cast--is within the Board's statutory 
authority and discretion under the RLA. As noted in the NPRM, the Board 
believes that

[[Page 26068]]

under its broad statutory authority it may reasonably interpret Section 
2, Fourth to certify a representative based on a majority of ballots 
cast.
    As noted by many comments both opposing and supporting the NMB's 
proposed change, the language of Section 2, Fourth was taken from a 
rule announced by the NMB's precursor, United States Railroad Labor 
Board (Railroad Board), under the Transportation Act of 1920. Virginian 
Ry., 300 U.S. at 561. These Railroad Board decisions submitted as part 
of the IAM's comment on the NPRM lend support to the NMB's proposed 
change. In Decision No. 119, International Ass'n of Machinists et al. 
v. Atchison, Topeka & Santa Fe Ry. et al., 2 Dec. U.S. Railroad Board, 
87, 96, par. 15, the Railroad Board held that ``[t]he majority of any 
craft or class of employees shall have the right to determine what 
organization shall represent members of such craft or class.'' This 
rule was interpreted by the Railroad Board in Decision No. 1971, 
Brotherhood of Railway & Steamship Clerks v. Southern Pacific Lines, 4 
Dec. U.S. Railroad Labor Board 625, 629:

    The Board had previously in principle 15 of Decision No. 119 
ruled that ``the majority of any craft or class of employees shall 
have the right to determine what organization shall represent 
members of such craft or class'' in negotiating agreements.
    The purpose of the Railroad Labor Board was to give all the 
employees to be affected the privilege of expressing their choice. 
The board could not force any employee nor all of the employees to 
vote. It could only give all a fair opportunity. It was obviously 
the meaning and the purpose of the board that a majority of the 
votes properly cast and counted in an election properly held should 
determine the will and choice of the class * * *.
    Decision--The Railroad Labor Board decides that a majority of 
the legal votes cast in this election will determine who shall be 
the representatives of the employees.

    The legislative history of Section 2, Fourth also supports the 
NMB's position that such an interpretation is not contrary to either 
the language of the RLA. The report of the Senate Committee on 
Interstate and Foreign Commerce on the 1934 amendments, states ``[t]he 
bill specifically provides that the choice of representatives of any 
craft of craft shall be determined by a majority of the employees 
voting on the question.'' S. Rep. No. 73-1065, at 2 (1934).
    In his comment opposing the NPRM, Rep. Darrell Issa also reminds 
the Board that under the tenets of statutory construction, ``it is 
assumed that Congress expresses its intent through the ordinary meaning 
of its language. * * * [and] where the meaning of the relevant 
statutory language is clear, then no further inquiry is required.'' In 
the instant case, as discussed above, the Board believes that the 
language of Section 2, Fourth is open to interpretation, and would also 
note as, Attorney General Tom C. Clark observed that

when 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.'

40 Op. Att'y Gen. at 544 (emphasis in original).\10\
---------------------------------------------------------------------------

    \10\ In 1947, United States Attorney General Tom C. Clark, 
responding to a question from the NMB on its authority under Section 
2, Fourth, stated his opinion that the Board has the power to 
certify a representative which receives a majority of the votes cast 
at an election despite the fact that less than a majority of those 
eligible to vote participated in the election.

    Delta also contends that the Supreme Court has ``examined the 
statutory language at issue and [has] approved of the Board's long-
standing interpretation of the command of Section 2, Fourth as 
requiring majority participation in an election. '' While the Board 
agrees that the Supreme Court has upheld the Board's current 
interpretation of Section 2, Fourth, the Board believes the Court's 
decisions support the Board's view that the current interpretation is 
not compelled by the statute. \11\ In Virginian Railway , the Court, in 
rejecting a challenge to a certification based on a majority of ballots 
cast, stated that
---------------------------------------------------------------------------

    \11\ Delta also cites Switchmen's Union of North America v. NMB, 
320 U.S. 297, 300 (1943) and Brotherhood of Railway and Steamship 
Clerks v. Ass'n for the Benefit of Non-Contract Employees, 380 U.S. 
650, 659 (1965) (ABNE), for the proposition that the right protected 
by Section 2, Ninth is the ``right of the majority of employees in 
the craft or class to determine who shall be their representative.'' 
Once again, the Board agrees with Delta that the RLA gives the Board 
the power to resolve representation disputes and to certify a 
representative selected by a majority of any craft or class of 
employees. In neither decision, however, did the Court state that 
the language of Section 2, Fourth, referring to a ``majority of any 
craft or class of employees,'' can only be read as a ``majority of 
eligible voters'' or that the Board's current procedures are 
compelled by the statute. In Switchmen's Union, the Court addressed 
the standard of review of the NMB's representation determinations 
and held that it was for the Board and not the courts to resolve 
claims involving the appropriate craft or class. In ABNE, the Court 
held that the Board's current ballot form did not exceed its 
statutory authority, but the Court also noted that ``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.'' 380 U.S. at 
668-669.

    Section 2, Fourth of the Railway Labor Act provides: ``The 
majority of any craft or class of employees shall have the right to 
determine who shall be the representative of the craft or class for 
the purposes of this Act (chapter).'' Petitioner construes this 
section as requiring that a representative be selected by the votes 
of a majority of eligible voters. It is to be noted that the words 
of the section confer the right of determination upon a majority of 
those eligible to vote, but it is silent as to the manner in which 
---------------------------------------------------------------------------
that right shall be exercised.

300 U.S. at 560. Citing its decisions in political election cases, the 
Court continues: ``Election laws providing for approval of a proposal 
by a specified majority of an electorate have been generally construed 
as requiring a [sic] 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.' '' Id. (internal citations omitted).
    Delta suggests that the Court in Virginian Railway held that 
majority participation is required by Section 2, Fourth when it noted 
that ``[i]f in addition to participation by a majority of a craft, a 
vote of the majority of those eligible is necessary for a choice, an 
indifferent minority could prevent the resolution of a contest, and 
thwart the purpose of the act, which is dependent for its operation 
upon the selection of representative.'' Id. In support of this 
argument, Delta also cites the Virginian Railway Court's statement that 
``[i]t is significant of the congressional intent that the language of 
section 2, Fourth, was taken from a rule announced by the United States 
Railroad Labor Board, acting under the provisions of the Transportation 
Act of 1920 * * * where it appeared that a majority of the craft 
participated in the election. The Board ruled * * * that a majority of 
the votes cast was sufficient to designate a representative.'' Id. at 
561. Thus, Delta argues that ``majority participation in the election 
was a precondition to certification'' and any other reading of Section 
2, Fourth ``undermines Congress' evident intent to place the authority 
to elect representation (or choose among representatives) to the 
majority of the craft or class, and not to a mere handful of 
individuals.''
    The Board agrees that Virginian Railway involved an election in 
which a majority of eligible employees actually

[[Page 26069]]

participated in the election. The Board, however, is not persuaded that 
the language cited by Delta precludes certification by a majority of 
ballots cast since the Court upheld the use of a presumption that non-
voters concur in the wishes of the majority of voters. Nor have the 
courts interpreted Virginian Railway as Delta does. In National Labor 
Relations Board v. Standard Lime & Stone Co., 149 F.2d 435 (1945), 
cert. denied, 326 U.S. 723 (1945), the NLRB certified a union on the 
basis of a majority of ballots cast in an election in which the 
majority of employees in the bargaining unit did not vote. The employer 
refused to bargain with the union because while the union received a 
majority of the ballots cast, a majority of the bargaining unit 
employees had not voted in the election. The United States Court of 
Appeals for the Fourth Circuit stated,

    On the first and principal question, that presented by lack of 
majority participation in either of the elections, we think that the 
conclusive answer is found in the decision of the Supreme Court in 
[Virginian Railway] * * * . In that case both this court and the 
Supreme Court held that, in employees' elections under the Railway 
Labor Act * * * for the selection of bargaining representatives, the 
political principle of majority rule should be applied, viz., that 
those not participating in the election must be presumed to assent 
to the expressed will of the majority of those voting, so that such 
majority determines a choice.

    Id. at 436 (citations omitted). The Fourth Circuit noted that in 
Virginian Railway, ``a majority of the employees participated in the 
election, but the ground of the decision, the political principle of 
majority rule with the presumption that those not voting assent to the 
expressed will of the majority voting, supports the choice made in an 
election, whether the majority of employees has participated or not.'' 
\12\ Id. at 436 n. 1. Finally, noting that the purpose of allowing 
employees to choose a bargaining representative is to further the 
public interest of preserving industrial peace and prevent interference 
with interstate commerce, the court stated that

    \12\ The Fourth Circuit is not alone in this view of Virginian 
Railway. See also Int'l Bhd. of Teamsters v. Bhd. of Ry., Airline & 
S.S. Clerks, 402 F.2d 196, 204 n. 16 (DC Cir. 1968), cert. denied, 
393 U.S. 848 (1968) (noting that the Virginian Railway Court's 
reliance on analogy to political elections served to support the 
NLRB's power to certify a union even where a majority of the 
bargaining unit did not participate and choice of whether or not to 
follow Virginian Railway presumption was the NMB's to make); ABNE, 
380 U.S. at 670 (1965) (characterizing the ``presumption of 
Virginian Railway'' as ``[i]f in a labor election an employee does 
not vote, he can safely be presumed to have acquiesced in the will 
of the majority of voters'' and acknowledging that the NMB has broad 
discretion to decide whether or not to follow this presumption); 
Continental Airlines v. NMB, 793 F.Supp. 330, 333-34 n. 5 (D. DC 
1991) (finding that no statutory language prescribes how the NMB 
should assess the views of voters in union elections and citing 
Virginian Railway and ABNE for conclusion that in election cases the 
NMB has the discretion to treat a nonvoter as either acquiescing in 
the will of the majority or voting for no representation).

[t]his being true, it would be as absurd to hold that collective 
bargaining is defeated because a majority of employees fail to 
participate in an election of representatives as it would be to hold 
that the people of a municipality are without officers to represent 
them because a majority of the qualified voters do not participate 
in an election held to choose such officers. In the one case, as in 
the other, the representative is being chosen to represent a 
constituency because it is in the public interest that the 
constituency be represented; and all that should be necessary is 
that the election be properly advertised and fairly held and that 
---------------------------------------------------------------------------
the settled principle of majority rule be applied to the result.

149 F.2d at 438-39.

    In its comments, Delta suggests that the Board errs in citing 
precedent involving the National Labor Relations Act (NLRA) and 
discussing the similarity of the language of both statutes.\13\ Delta 
takes pains to remind the NMB that the NLRA ``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.'' Trans World Airlines v. Indep. Fed'n of Flight 
Attendants, 489 U.S. 426, 439 (1989) (quoting Bhd. of R. R. Trainmen v. 
Jacksonville Terminal Co., 394 U.S. 369, 383 (1969)). The Board 
disagrees with Delta. While there are differences in history and 
purpose between the NLRA and the RLA, the Standard Lime case arose 
under Sec. 9(a) of the NLRA and the language of that section was 
modeled on Section 2, Fourth of the RLA. As previously discussed in the 
NPRM and in the 1947 Opinion of Attorney General Tom C. Clark, 40 Op. 
Att'y Gen. 541 (1947), Section 9(a) of the NLRA 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 * * * .'' 29 U.S.C. 159(a). The legislative history of 
Section 9(a) of the NLRA states 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.'' H. Rep. No. 74-1147, at 3 (1935).\14\
---------------------------------------------------------------------------

    \13\ Delta also argues that the Board cannot rely on precedent 
involving the NLRA because an employer can easily seek court review 
of an NLRB certification while an NMB certification is essentially 
unreviewable. To be sure, judicial review of the Board's decisions 
has often been observed to be ``one of the narrowest known to the 
law.'' Int'l Ass'n of Machinists & Aerospace Workers v. Trans World 
Airlines, 839 F.2d 809, 811, amended 848 F.2d 232 (DC Cir. 1988), 
cert. denied 488 U.S. 820 (1988). This is true, however, because 
Congress intended the Board to have the final word in representation 
disputes. In Switchmen's Union, the Court concluded that this 
limited role for the courts was part of the statutory scheme, noting 
that the Congressional intent ``seems plain--the dispute was to 
reach its last terminal point when the administrative finding was 
made. There was to be no dragging out of the controversy into other 
tribunals of law.'' 320 U.S. at 305; See also ABNE, 380 U.S. 650, 
658-660 (1965). Further, unlike the NLRB, which has broad 
adjudicatory and remedial powers, the NMB's mission is to help the 
parties to a dispute reach resolution through determination of 
representation disputes and mediation of collective-bargaining 
controversies. Finally, limited review does not mean that judicial 
review is nonexistent. The Board's actions are reviewable where the 
NMB has committed a ``gross violation'' of the RLA; where it has 
failed to satisfy its obligations under Section 2, Ninth to 
investigate a dispute; where its actions are outside its delegated 
authority under the Act; or where it has violated a party's 
constitutional rights. Further, judicial review is also available 
for the Board's actions where, as here, it has engaged in rulemaking 
under the APA.
    \14\ See also New York Handkerchief Mfg. Co. v. NLRB, 114 F. 2d 
144, 149 (7th Cir. 1940) (``From a comparison of the language of the 
two Acts, it becomes ev