Decertification of Representatives, 612-614 [2019-00406]

Agencies

• National Mediation Board

[Federal Register Volume 84, Number 21 (Thursday, January 31, 2019)]
[Proposed Rules]
[Pages 612-614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00406]


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NATIONAL MEDIATION BOARD

29 CFR Parts 1203 and 1206

[Docket No. C-7198]
RIN 3140-AA01


Decertification of Representatives

AGENCY: National Mediation Board.

ACTION: Proposed rule with requests for comments.

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

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

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

--Federal eRulemaking Portal: https://regulations.gov. Follow the 
instructions for submitting comments.
--Agency Website: https://www.nmb.gov. Follow the instructions for 
submitting comments.
--Email: legal@nmb.gov. Include Docket No. C-7198 in the subject line 
of the message.
--Fax: (202) 692-5085.
--Mail and Hand Delivery: National Mediation Board, 1301 K Street NW, 
Ste. 250E, Washington, DC 20005.

    Instructions: All submissions received must include the agency name 
and docket number. All comments received will be posted without change 
to https://www.nmb.gov, including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.nmb.gov.

FOR FURTHER INFORMATION CONTACT: Mary Johnson, General Counsel, 
National Mediation Board, (202) 692-5040, legal@nmb.gov.

SUPPLEMENTARY INFORMATION:  The Railway Labor Act (RLA), 45 U.S.C. 151 
et seq. establishes the NMB whose functions, among others, are to 
administer certain provisions of the RLA with respect to investigating 
disputes as to the representative of a craft or class. In accordance 
with its authority under 45 U.S.C. 152, Ninth, the Board has considered 
changes to its rules to better facilitate the statutory mission to 
investigate representation disputes ``among a carrier's employees as to 
who are the representatives of such employees.''
    Currently, while employees have the ability to decertify a 
representative under the RLA, the process to decertify is unnecessarily 
complex and convoluted. By failing to have in place a straight-forward 
process for decertification of a representative, the Board is 
maintaining an unjustifiable hurdle for employees who no longer wish to 
be represented and failing to fulfill the statutory purpose of 
``freedom of association among employees.'' 45 U.S.C. 151a(2).
    Unlike the National Labor Relations Act, the RLA has no statutory 
provision for decertification of a bargaining representative. The 
Supreme Court, however, has held that, under Section 2, Fourth, 45 
U.S.C. 152, Fourth, employees of the craft or class ``have the right to 
determine who shall be the representative of the group or, indeed, 
whether they shall have any representation at all.'' Bhd. of Railway 
and Steamship Clerks v. Assoc. for the Benefit of Non-Contract 
Employees, 380 US 650, 670 (1965)(ABNE). In ABNE, the Court further 
noted that the legislative history of the RLA supports the view that 
employees have the option of rejecting collective representation. Id. 
at 669. citing Hearings on H.R. 7650, House Committee on Interstate and 
Foreign Commerce, 73d Cong., 2d Sess., 34-35. In International 
Brotherhood of Teamsters v. Bhd. of Railway, Airline and Steamship 
Clerks, the United States Court of Appeals for the District of Columbia 
(D.C. Circuit), stated that ``it is inconceivable that the right to 
reject collective representation vanishes entirely if the employees of 
a unit once choose collective representation. On its face that is a 
most unlikely rule, especially taking into account the inevitability of 
substantial turnover of personnel within the unit.'' 402 F.2d 196, 202 
(1968), See also Russell v. National Mediation Board, 714 F.2d 1332 
(1983).
    Under its current procedures, the NMB allows indirect rather than 
direct decertification. The Board does not allow an employee or a group 
of employees of a craft or class to apply for an election to vote for 
their current representative or for no union. Employees who wish to 
become unrepresented must follow a more convoluted path to an election 
because of the Board's requirement of the ``straw man.'' This straw man 
requirement means that if a craft or class of employees want to 
decertify, they must find a person willing to put their name up, i.e. 
``John Smith,'' and then explain to at least fifty percent of the 
workforce that John Smith does not want to represent them, but if they 
want to decertify they have to sign the card authorizing him to 
represent them. Thus, in order to become unrepresented, employees are 
required to first sign an authorization card to have a strawman step in 
to represent them. In the resulting election, the ballot options will 
include the names of the current representative; John Smith, the 
strawman applicant; ``no union;'' and an option to write in the name of 
another

[[Page 613]]

representative. To decertify, employees have to vote for no 
representation.
    It is NMB's statutory mandate to protect employees' freedom to 
choose a representative. There is, however, no statutory basis for the 
additional requirement of a straw man where employees seek to become 
unrepresented. Both courts and the Board have recognized that inherent 
in the right to representation is the right to be unrepresented. 
Accordingly, the Board proposes changing its rules to simplify the 
decertification process and put decertification on an equal footing 
with certification. Employees may submit authorization cards to 
decertify their current representative. The wording on the card must be 
unambiguous and clearly state the intent to no longer be represented by 
the current union. The showing of interest requirement will be the same 
showing of interest required for a certification election--at least 50 
percent of the craft or class.
    The necessity of a straw man will be eliminated, and the ballot 
will no longer include a strawman representation choice. Once it is 
determined that the showing of interest is valid and sufficient, the 
Board will authorize the election with the incumbent and the no 
representation option, along with a write-in option. The Board's 
existing run-off rules will apply.
    Successful decertification, like certification, is a challenging 
and significant undertaking by employees with a substantial impact on 
the workplace for both employees and their employer. In the Board's 
view, the changes in the employee-employer relationship that occur when 
employees become represented, change representative or become 
unrepresented require similar treatment. For this reason, the Board 
proposes extending the two year time limit on applications in Sec. 
1206.4(a) to decertifications as well as certifications. The other time 
limits set forth in 1206.4 will remain unchanged.
    Member Puchala dissents from the Board majority's action in 
approving the proposed rule.

Executive Order 12866

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

Regulatory Flexibility Act

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

Paperwork Reduction Act

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

List of Subjects

29 CFR Part 1203

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

29 CFR Part 1206

    Air carriers, Labor management relations, Labor union, Railroads.
    For the reasons stated in the preamble, the National Mediation 
Board proposes to amend 29 CFR Chapter X as set forth below:

PART 1203--APPLICATIONS FOR SERVICE

0
1. The authority citation for part 1203 continues to read as follows:

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
0
2. Revise Sec.  1203.2 to read as follows:


Sec.  1203.2  Investigation of representation disputes.

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

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

0
1. The authority citation for part 1206 continues to read as follows:

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
0
2. Amend Sec.  1206.1 by revising paragraph (b) to read as follows


Sec.  1206.1  Run-off elections.

* * * * *
    (b) In the event a run-off election is authorized by the Board, the 
two options which received the highest number of votes cast in the 
first election shall be placed on the run-off ballot. No blank line on 
which voters may write in the name of any organization, individual, or 
no representation will be provided on the run-off ballot.
* * * * *
0
3. Amend Sec.  1206.2 by revising paragraph (a) 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, or to decertify the current representative and have no 
representative, a showing of proved authorizations (checked and 
verified as to date, signature, and employment status) from at least 
fifty (50) percent of the craft or class must be made before the 
National Mediation Board will authorize an election or otherwise 
determine the representation desires of the employees under the 
provisions of section 2, Ninth, of the Railway Labor Act.
* * * * *
0
4. Amend Sec.  1206.4 by revising paragraph (a) to read as follows:


Sec.  1206.4  Time Limits on Applications

* * * * *
    (a) For a period of two (2) years from the date of a certification 
or decertification covering the same craft or class of employees on the 
same carrier, and
* * * * *
0
5. Redesignate Sec. Sec.  1206.5 through 1206.7 as Sec. Sec.  1206.6 
through 1206.8 and add new Sec.  1206.5 to read as follows:


Sec.  1206.5  Decertification of Representatives.

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


[[Page 614]]


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